2024 (1) TMI 409 - AT - Income Tax

Reopening of assessment u/s 147 - unexplained investment under construction of work - eight group companies gathered and entered in to agreement with Global Enterprises a partnership firm, wherein the directors of all the eight companies are partners and there was equivalence among the corporate entity and partners of Global Enterprises and only funds were brought in Global Enterprises. The profits were to be assesses in the hands of the owners of the project that is corporate entities, which returned nill income - HELD THAT - We find that Pursuant to search and survey action the assessment of Global Enterprises for three assessment years. The assessing officer in AY 2008-09 made certain other additions, which were deleted by Ld. CIT(A) and the order of CIT(A) was upheld, by the Ahmedabad Tribunal. We find that there is no material on record placed either by assessee or by revenue that cases of other six group entity/ companies were reopened or not under section 147 or revised under section 263. In such circumstances, we assume that no such reassessment action was initiated in remaining six group entity. Only, the case of present assessee was reopened for three assessment years. Thus, the assessment of all six group entity have attained finality. We find that in the reasons recorded itself the assessing officer recorded that 11.64% of profit Rs. 7.93 Crore has escaped from assessment in the hand of present assessee. Such profit has already offered by Global Enterprises and has been accepted by the revenue. We are unable to subscribe that that fact that once, the profit of Rs. 7.93 Crore, which is declared by Global Enterprises and accepted by revenue, as to how its 11.64% being share of assessee can be again brought to tax. The assessing officer and the ld CIT(A) failed to appreciate the settled position under taxing statue that double taxation of similar revenue (income) is not permissible. There was no income which escaped from assessment, the receipt of income as indicated from the reasons recorded itself was taxed by the revenue in the hands of Global Enterprises. Hence, the reasons recorded itself was not sufficient and rather incorrect assumption of facts, based on which the action of reopening was initiated. Accordingly, reopening is not valid and justified and the action initiated thereupon is void ad initio . The issuance of notice under section 148 was based wrong assumption of fact. Therefore, the assessment order passed under section 143(3) rws 147 is quashed. Thus basis of reopening in the case in hand clearly demonstrate that the income which was sought to be brought to tax, has already been taxed and accepted by the revenue. Thus, the assessee succeeded on the primary submissions of ld AR for the assessee on the validity of reopening. Decided in favour of assessee.

Issues Involved:
1. Validity of Reopening Under Section 147
2. Validity of Notice Under Section 148
3. Addition of Rs. 6,03,420/- on Account of Unexplained Investment
4. Addition of Rs. 19,76,952/- on Account of Minimum Profit Accumulated from the Project
5. Addition of Rs. 92,33,526/- on Account of Construction Work Treated as Taxable Business Receipts

Summary:

1. Validity of Reopening Under Section 147:
The assessee challenged the reopening of the case under Section 147, arguing that there was no escapement of income and the assessment order was void ab initio. The Tribunal found that the alleged escaped income was already assessed in the hands of M/s Global Enterprises, which is a related party. The Tribunal held that the reopening was based on incorrect assumptions and was not valid. The assessment order passed under Section 143(3) read with Section 147 was quashed.

2. Validity of Notice Under Section 148:
The Tribunal noted that the issuance of notice under Section 148 was based on a wrong assumption of facts. The reasons recorded for reopening were not sufficient and were based on incorrect assumptions. Therefore, the notice under Section 148 was deemed invalid.

3. Addition of Rs. 6,03,420/- on Account of Unexplained Investment:
The Tribunal did not specifically address this issue separately, as the primary grounds for reopening were quashed, rendering the addition on account of unexplained investment academic.

4. Addition of Rs. 19,76,952/- on Account of Minimum Profit Accumulated from the Project:
Similar to the issue of unexplained investment, the Tribunal did not delve into this addition separately. The quashing of the reopening rendered this issue academic as well.

5. Addition of Rs. 92,33,526/- on Account of Construction Work Treated as Taxable Business Receipts:
The Tribunal found that the income which was sought to be taxed in the hands of the assessee had already been taxed in the hands of M/s Global Enterprises. The Tribunal held that double taxation of the same income is not permissible and quashed the addition.

Conclusion:
The appeals for all the assessment years (2008-09, 2009-10, and 2010-11) were allowed. The Tribunal quashed the reopening and the related assessment orders, rendering the merits of the additions academic. The judgment emphasized that the income already taxed in the hands of a related party cannot be taxed again in the hands of the assessee.

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