2023 (8) TMI 20 - AT - Income Tax

Validity of Reopening of assessment u/s 147 - not in accordance with the provisions of section 151 - sale of agricultural land - notice u/s 148 issued after the expiry of 4 years - reasons to believe - as argued initial assessment was framed by the AO u/s 143(3) r.w.s. 153A, thus there should be failure on the part of the assessee to disclose fully and truly all the facts necessary for the assessment - HELD THAT - As no tangible material is placed on record to support the action of the AO warranting reopening of the assessee s case. AO did not rebut the appellant s contention that nothing over and above the amount recorded in the registered sale deeds was paid by bringing necessary details. The unsubstantiated material found in the diary in possession of Shri Madan Mohan Gupta third party cannot be considered in the hands of the assessee as a conclusive evidence so as to reopen the assessment and make additions towards unexplained investment in purchase of land. Undisputedly, no other material suggesting payment of higher amounts was recovered during the search. It is trite law that burden is on the revenue to prove that the price had been under stated and no addition is possible without any inquiry. In this case, there is no cogent material to support the reopening of the assessment within the meaning of section 147 and that the appellant has actually paid higher amount than that recorded in the registered sale deed and the AO did not conduct any inquiry to bring some material to corroborate the notings found in the diary allegedly contained dealings in respect of certain properties purchased the assessee, except relying on the statement of Shri Madan Mohan Gupta. Therefore, following the earlier order of this Tribunal in the case of Shri Navrattan Kothari 2017 (12) TMI 860 - ITAT JAIPUR wherein exactly same facts were involved and after considering the various judicial pronouncements on the issue held the issue of notice u/s 147 without jurisdiction, we hold that the reopening of the assessment after four years from the end of the assessment year under consideration and also with reference to the provisions of section 151 is not valid and the same is quashed. Decided in favour of assessee.

Issues Involved:

1. Validity of reopening the case under section 147.
2. Issuance of notice under section 148 without proper approval as per section 151.
3. Disallowance of deduction under section 54B.
4. Addition under section 69 for unexplained investments.
5. Non-provision of copies of material, statements, and documents used against the assessee.
6. Classification of land sold as agricultural land outside the purview of Capital Asset under section 2(14).

Issue-wise Detailed Analysis:

1. Validity of Reopening the Case under Section 147:
The appeals challenge the reopening of the case under section 147 of the Income Tax Act. The assessee argued that the reopening was based solely on information received from the Investigation Wing following a search on Shri Madan Mohan Gupta, without any corroborative evidence or satisfaction of 'on money' payments. The Tribunal noted that the Assessing Officer (AO) reopened the case based on the seized diary and statements from Shri Madan Mohan Gupta, which allegedly contained details of land transactions involving the assessee. However, the Tribunal found that the seized material did not directly implicate the assessee in any undisclosed cash transactions. The Tribunal highlighted that reassessment under section 147 should be based on tangible material and not mere suspicion. The Tribunal concluded that the reopening was invalid as it was based on unsubstantiated information, lacking direct evidence against the assessee.

2. Issuance of Notice under Section 148 without Proper Approval as per Section 151:
The assessees contended that the notice under section 148 was issued without proper approval from the relevant authority as mandated by section 151. The Tribunal observed that the AO initiated proceedings under section 148 after obtaining approval from the Additional Commissioner of Income Tax. However, the Tribunal found that the reasons recorded for reopening did not establish a direct link to the assessee's alleged undisclosed income. The Tribunal reiterated that reopening based on information from the Investigation Wing without independent verification or tangible evidence is not permissible. Consequently, the Tribunal held that the issuance of notice under section 148 was invalid.

3. Disallowance of Deduction under Section 54B:
The Tribunal addressed the disallowance of deduction under section 54B for the assessee's investment in agricultural land. The assessee claimed deductions for purchasing agricultural land after selling other agricultural land. The AO disallowed the deduction, arguing that the land purchased was not used for agricultural purposes before the sale. The Tribunal noted that the assessee had provided evidence of the land being used for agricultural activities before its sale. The Tribunal found that the AO's disallowance was arbitrary and lacked proper justification. The Tribunal quashed the disallowance and allowed the deduction under section 54B.

4. Addition under Section 69 for Unexplained Investments:
The AO made additions under section 69, alleging that the assessee made undisclosed cash payments for purchasing land. The Tribunal scrutinized the seized material and statements from the search operation. It found that the seized diary did not contain any direct evidence of cash payments by the assessee. The Tribunal emphasized that additions under section 69 require tangible evidence of unexplained investments. The Tribunal concluded that the AO's additions were based on assumptions and lacked corroborative evidence. Therefore, the Tribunal deleted the additions made under section 69.

5. Non-provision of Copies of Material, Statements, and Documents Used Against the Assessee:
The assessee argued that the AO did not provide copies of the material, statements, and documents used against them for making additions. The Tribunal noted that the principles of natural justice require the AO to provide relevant documents to the assessee. The Tribunal found that the AO failed to furnish the necessary documents, which violated the assessee's right to a fair hearing. Consequently, the Tribunal held that the AO's actions were unjustified and arbitrary, warranting appropriate relief for the assessee.

6. Classification of Land Sold as Agricultural Land Outside the Purview of Capital Asset under Section 2(14):
The assessee contended that the land sold was agricultural land and, therefore, outside the purview of a capital asset as defined under section 2(14) of the Income Tax Act. The Tribunal examined the evidence provided by the assessee, including the location and usage of the land for agricultural purposes. The Tribunal found that the land was indeed used for agricultural activities before its sale. The Tribunal rejected the AO's classification of the land as a capital asset and held that the land was agricultural land, exempt from capital gains tax.

Conclusion:
The Tribunal quashed the reopening of the assessments under section 147, invalidated the issuance of notices under section 148, allowed the deductions under section 54B, deleted the additions under section 69, and upheld the classification of the land as agricultural land. The Tribunal emphasized the need for tangible evidence and adherence to principles of natural justice in reassessment proceedings. The appeals were allowed in favor of the assessees.

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