2016 (5) TMI 163 - AT - Income Tax

Tribunal invalidates reassessment under Income Tax Act; notice and evidence issues raised.

The Tribunal quashed the reassessment proceedings due to the invalidity of reopening the assessment under Section 147 of the Income Tax Act. The notice ... Reopening of assessment - reasons to believe - basis of information allegedly received by him from the Directorate of Income Tax (Investigation) - Held that:- After going through the reasons recorded by the Assessing Officer/DCIT, Circle 14(2), New Delhi for reopening and the approval thereof by the Ld. Addl. CIT, Range-14, New Delhi, we are of the view that AO has not applied his mind so as to come to an independent conclusion that he has reason to believe that income has escaped during the year. In our view the reasons are vague and are not based on any tangible material as well as are not acceptable in the eyes of law. The AO has mechanically issued notice u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Delhi. Keeping in view of the facts and circumstances of the present case and the case law applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and deserves to be quashed. Even otherwise, a perusal of the above demonstrates that the Addl. CIT has written “Yes, I am Satisfied” which establishes that he has not recorded proper satisfaction / approval, before issue of notice u/s. 148 of the I.T. Act. Thereafter, the AO has mechanically issued notice u/s. 148 of the Act, on the basis of information allegedly received by him from the Directorate of Income Tax (Investigation), New Delhi. Keeping in view of the facts and circumstances of the present case and the case law applicable in the case of the assessee, we are of the considered view that the reopening in the case of the assessee for the asstt. Year in dispute is bad in law and deserves to be quashed. - Decided in favour of assessee. Issues Involved:1. Validity of reopening the case under Section 147 of the Income Tax Act.2. Issuance and service of notice under Section 148.3. Validity of notice under Section 143(2) of the Income Tax Act.4. Addition of Rs. 1,13,00,000 as undisclosed income.5. Admission of evidence under Rule 46A of the Income Tax Rules.6. Addition based on third-party statements without cross-examination.Detailed Analysis:1. Validity of Reopening the Case under Section 147 of the Income Tax Act:The Tribunal examined the reasons recorded by the Assessing Officer (AO) for reopening the assessment and the approval from the Additional Commissioner of Income Tax (Addl. CIT). The Tribunal found that the AO had not applied his mind independently and mechanically issued the notice under Section 148 based on information from the Directorate of Income Tax (Investigation). The Tribunal held that the reasons were vague and not based on tangible material, making the reopening of the assessment bad in law. The Tribunal's view was supported by several judgments, including:- Signature Hotels (P) Ltd. vs. ITO: The Delhi High Court held that the AO must have a bona fide reason to believe that income has escaped assessment, which must be based on specific and relevant information.- CIT vs. Atul Jain: The Delhi High Court held that vague information without verification cannot justify reopening an assessment.2. Issuance and Service of Notice under Section 148:The Tribunal noted that the notice under Section 148 was issued to 'M/s Pine View Construction & Traders P. Ltd.' and served through affixture after the notice sent via speed post was returned unserved. The Tribunal found that the notice was not issued by the jurisdictional AO and was not properly served, making the proceedings invalid and void ab initio.3. Validity of Notice under Section 143(2) of the Income Tax Act:The Tribunal observed that there was no effective notice under Section 143(2) of the Income Tax Act. The absence of such notice rendered the assessment order passed under Section 143(3) read with Section 147 invalid.4. Addition of Rs. 1,13,00,000 as Undisclosed Income:The Tribunal found that the addition of Rs. 1,13,00,000 as undisclosed income was based on the AO's conclusion that the share capital and share premium received by the assessee were accommodation entries. However, the Tribunal quashed the reassessment proceedings, making this issue academic and not adjudicated upon.5. Admission of Evidence under Rule 46A of the Income Tax Rules:The Tribunal noted that the CIT(A) did not admit and consider crucial evidence filed by the assessee, holding that the case did not fall under any of the circumstances provided under Rule 46A. The Tribunal found this denial arbitrary and against the principles of natural justice.6. Addition Based on Third-Party Statements without Cross-Examination:The Tribunal held that the addition based on third-party statements without providing the assessee an opportunity for cross-examination violated the principles of natural justice. The Tribunal emphasized that the right to cross-examine is a fundamental aspect of fair proceedings.Conclusion:The Tribunal quashed the reassessment proceedings and the orders of the authorities below on the legal issue of reopening the assessment. Consequently, the other issues raised by the assessee became academic and were not adjudicated upon. The appeal filed by the assessee was allowed.