2015 (9) TMI 757 - HC - Income Tax

Appeal allowed, reassessment order set aside due to errors in reopening assessment.

The appeal was allowed, setting aside the reassessment order and subsequent orders. The court held that the Income Tax Appellate Tribunal erred in ... Reopening of assessment - Addition on account of income arising on sale of investments - disallowance of claim for “Investments Written Off” - Whether ITAT was correct in law in holding that the income earned on sale/redemption of investment is chargeable to tax? - Held that:- It is not disputed that the reasons that led the AO to reopen the assessment were factually incorrect. It is not disputed that the Assessee was carrying on only one business - General Insurance Business, which is regulated under The Insurance Act, 1938. Indisputably, the insurers cannot carry on any business other than the insurance business or any prescribed business. The business of General Insurance is regulated and there is no allegation that the regulatory authority has found the Assessee to be in default of any provisions of The Insurance Act, 1938. The learned counsel for the Revenue also did not dispute that the AO’s assumption that the Assessee was carrying on two streams of business was incorrect. Thus, this reason to believe that the Assessee’s income had escaped assessment is clearly without any factual basis. The assumption that the Assessee had not credited the profits in question to the Profit and Loss Account is also, admittedly, factually incorrect. Thus, the reasons which led the AO to form a belief that income of the Assessee had escaped assessment are admittedly based on palpably incorrect assumptions. It is well established that reasons to believe that income had escaped assessment is a necessary precondition for the AO to assume jurisdiction.There was no basis for the AO to assume that the Assessee had not credited the profits from the sale of investments, which are alleged to have escaped assessment in its Profit and Loss account. It cannot be disputed that the exemption claimed by the AO in respect of the profit on sale/redemption of investments was duly disclosed and the AO had also opined on the merits of the taxability of profits on sale/redemption of investments. The income from profit on sale/redemption of investments is now sought to be taxed as income which had escaped assessment. This, in our view, clearly represents a change in the opinion with regard to the taxability of the income in question. It is well settled that the power under Section 147 of the Act is not a power of review but a power to reassess. Permitting reopening of assessment on a change of opinion as to the taxability of the income of the Assessee is, thus, outside the scope of Section 147 of the Act. We find considerable merit in the contention of the Assessee that the AO did not have the jurisdiction to tax the profits and gains from sale/realization of investments under Section 147 of the Act - Decided in favour of assessee. Issues Involved:1. Whether the Income Tax Appellate Tribunal was correct in law in upholding the addition on account of income arising on sale of investments despite no addition on account of grounds mentioned in the reasons to believe being sustainedRs.2. Whether the Income Tax Appellate Tribunal was correct in law in holding that the income earned on sale/redemption of investment is chargeable to taxRs.3. Whether the AO had assumed jurisdiction under Section 147 of the Act on account of change in opinion and whether the Income Tax Appellate Tribunal was correct in law in upholding the assumption of jurisdiction under Section 147 of the ActRs.Issue-wise Detailed Analysis:1. Whether the Income Tax Appellate Tribunal was correct in law in upholding the addition on account of income arising on sale of investments despite no addition on account of grounds mentioned in the reasons to believe being sustainedRs.The Court examined whether the reasons recorded by the AO for reopening the assessment were factually correct. It was found that the AO's assumptions were factually incorrect, as the Assessee was only engaged in General Insurance Business and had credited the profits from the sale of investments to the Profit and Loss Account. The Court noted that the reasons to believe must be based on tangible material and cogent facts, and the AO's reasons in this case were based on erroneous assumptions. Therefore, the reopening of the assessment was deemed to be without jurisdiction, rendering the reassessment proceedings invalid.2. Whether the Income Tax Appellate Tribunal was correct in law in holding that the income earned on sale/redemption of investment is chargeable to taxRs.The Court did not find it necessary to address this issue in detail due to its conclusion on the first and third issues. However, it acknowledged that the Assessee had duly disclosed the exemption claimed for profits on the sale of investments and that the AO had previously opined that such profits were exempt from taxation. The Court emphasized that permitting the reopening of assessment on a change of opinion regarding the taxability of the income is outside the scope of Section 147 of the Act.3. Whether the AO had assumed jurisdiction under Section 147 of the Act on account of change in opinion and whether the Income Tax Appellate Tribunal was correct in law in upholding the assumption of jurisdiction under Section 147 of the ActRs.The Court reiterated that the power under Section 147 of the Act is not a power of review but a power to reassess. It held that reopening an assessment based on a change of opinion is impermissible. The Court referred to the Supreme Court's decision in Commissioner of Income-Tax v. Kelvinator of India Ltd., which emphasized that the AO must have tangible material to form a belief that income has escaped assessment. In this case, the AO's reasons were based on erroneous assumptions, and thus, the reopening of the assessment was invalid. The Court concluded that the AO did not have jurisdiction to tax the profits and gains from the sale/realization of investments under Section 147 of the Act.Conclusion:The appeal was allowed, and the reassessment order dated 21st January 2007, the order dated 16th August 2007 passed by the CIT(A), and the order dated 22nd July 2011 passed by the Tribunal were set aside. The Court found that the AO did not have the jurisdiction to reopen the assessment under Section 147 of the Act, and therefore, it was unnecessary to address the taxability of profits on the sale of investments on merits. The parties were left to bear their own costs.