2024 (3) TMI 736 - HC - Income Tax

Reopening of assessment u/s 147 - Reasons to believe - as per assessee AO has proceeded on fundamentally wrong facts - HELD THAT - The facts mentioned in the reasons for reopening pertain to another entity viz. M/s. Paranjape Properties and Investments Private Limited and not of Petitioner because, as stated in the petition, Petitioner had filed return of income declaring total income of Rs. 24,19,30,640/- and the tax liability of Rs. 6,21,47,815/-. Petitioner had also claimed Rs. 3,29,91,090/- as refund and an assessment order accepting the return of income has been passed u/s 143(3) of the Act. Moreover, the assessment order referred to in the reasons is dated 25th December 2018, whereas the assessment order in the case of Petitioner was passed on 27th December 2018. In Paragraph No. 4 of the reasons, the AO says In this case, more than four years have lapsed , whereas it is less than four years. No affidavit-in-reply has been filed opposing the petition though till date enough opportunity since 11th April 2022 was given to file reply. We agree with Petitioner that the reasons recorded are based on incorrect facts. We also agree that no attempt has been made to deal with these errors in the order on objections and the order on objections in fact has more errors. All these indicate total non-application of mind and certainly adverse inference has to be drawn against the Revenue. As held in Ankita A. Choksey ( 2019 (1) TMI 862 - BOMBAY HIGH COURT the condition precedent of reason to believe that income chargeable to tax has escaped assessment on correct facts must be satisfied by the AO so as to have jurisdiction to issue the reopening notice. In the present case, the AO has proceeded on fundamentally wrong facts to come to a belief/conclusion that income chargeable to tax has escaped assessment. Further, even when the same is pointed out by Petitioner, the AO in his order disposing the objections does not deal with the factual position. Thus there can be no reason for the AO to believe that income chargeable to tax has escaped assessment. Decided in favour of assessee.

Summary

Issues involved:
The judgment involves issues related to income tax assessment, reopening of assessment under Section 147 of the Income Tax Act, 1961, jurisdiction of Assessing Officer, errors in reasons recorded for reopening, and the legality of the notices issued.

Writ Petition No. 3459 of 2022:
The petitioner, engaged in real estate and property development, filed its return of income for AY 2016-2017. Subsequently, the Assessing Officer issued a notice under Section 148 alleging that income had escaped assessment. The petitioner objected to the reopening, citing discrepancies in the reasons recorded by the AO. The High Court held that the reasons were based on incorrect facts, indicating a lack of application of mind by the Revenue. The Court emphasized the importance of correct facts for issuing a reopening notice and concluded that there was no valid reason for the AO to believe that income had escaped assessment. Consequently, the petition was allowed, and the notice and order were quashed.

Writ Petition No. 154 of 2024:
In this petition, it was acknowledged that the Assessing Officer had overlooked the petitioner's response to a notice issued under Section 148A(b) of the Income Tax Act. The Court found that this oversight rendered the impugned order under Section 148A(d) and the consequential notice under Section 148 unsustainable. As a result, both the order and the notice were quashed and set aside, and the petition was disposed of, with all rights and contentions of the parties being kept open.