2012 (7) TMI 21 - AT - Income Tax

Tribunal quashes invalid reassessment, assessee appeals allowed

Tata International Ltd Versus The Dy Commr of Income Tax 7(3), Mumbai

The Tribunal quashed the reassessment for the years 2000-01, 2001-02, and 2002-03 as invalid due to the Assessing Officer's failure to provide the ... Validity of reopening of assessment - non-furnishing of reasons recorded by the Assessing Officer in notice dated 28.03.07 - first notice issued on 31.01.07 - second notice issued on 28.03.07 stating that the earlier notice dated 31.1.2007 may be treated as cancelled for technical - AY 2000-01, 2001-02, & 2002-03 - Held that:- It is an undisputed fact that the reasons actually recorded by the Assessing Officer were not furnished to the assessee till 14.06.2012 despite repeated requests and demands and therefore, the gist of reasons as furnished vide letter dated 28.06.2007 cannot be treated as reasons actually recorded by the Assessing Officer as per section 148(2) and as mandated by the Supreme Court in case of GKN Driveshafts (India) Ltd (2002 (11) TMI 7 (SC)). Thus, the Assessing Officer has failed to furnish the reasons recorded for reopening of the assessment within the reasonable time and rather prior to the completion of assessment, than the reassessment order passed without supply of reasons as recorded for reopening of the assessment, is invalid and cannot sustain. Accordingly, we set aside the reassessments for all 3 years under consideration being invalid - Decided in favor of assessee. Issues Involved:1. Validity of the reopening of assessment under Section 147.2. Disallowance of aggregate commission of Rs 11,98,505.3. Failure to give effect to the Appellate Order under Section 250.4. Charging of interest under Section 234-D.Detailed Analysis:1. Validity of the reopening of assessment under Section 147:The original assessments for the years 2000-01, 2001-02, and 2002-03 were completed under Section 143(3). The Assessing Officer (AO) reopened the assessments based on the Volcker Committee report, which indicated that the assessee had paid illegal commissions under the 'Oil for Food Programme of the UNO'. Notices under Section 148 were issued on 31.01.2007 and 28.03.2007. The assessee requested the reasons for reopening, but the AO only provided a gist of the reasons, not the full recorded reasons. The Tribunal held that the AO's failure to supply the actual recorded reasons for reopening the assessment within a reasonable time, as mandated by the Supreme Court in GKN Driveshafts (India) Ltd vs ITO, rendered the reassessment invalid. The Tribunal emphasized that the reasons must be furnished to allow the assessee to challenge the reopening. The reassessment was quashed as invalid.2. Disallowance of aggregate commission of Rs 11,98,505:The assessee contended that the disallowance of the commission was unjustified because the payments were made according to the Agency Agreements and should be allowable in full. The Commissioner of Income Tax (Appeals) upheld the AO's disallowance, relying on the Explanation to Section 37(1), which disallows expenses incurred for purposes prohibited by law. The Tribunal did not delve into the merits of this issue as the reassessment itself was quashed.3. Failure to give effect to the Appellate Order under Section 250:The assessee argued that the AO failed to give effect to the Appellate Order dated 2nd January 2006, which should have been considered while recomputing the total income. The Commissioner of Income Tax (Appeals) partly allowed this ground but did not direct the AO to give effect to the Appellate Order. The Tribunal did not address this issue in detail due to the quashing of the reassessment.4. Charging of interest under Section 234-D:The assessee challenged the interest charged under Section 234-D amounting to Rs 55,78,316. The Commissioner of Income Tax (Appeals) upheld the AO's decision, despite the assessee citing the Special Bench decision in ITO v Ekta Promoters (P) Ltd. The Tribunal did not address this issue in detail due to the quashing of the reassessment.Conclusion:The Tribunal quashed the reassessment for all three years as invalid due to the AO's failure to supply the reasons recorded for reopening the assessment within a reasonable time. Consequently, the Tribunal did not address the merits of the disallowance of the commission, the failure to give effect to the Appellate Order, or the charging of interest under Section 234-D. The appeals filed by the assessee were allowed.