2018 (5) TMI 1326 - AT - Income Tax

Tribunal invalidates reassessment on technical grounds, granting success to the taxpayer

The Tribunal invalidated the reassessment due to various reasons: the notice was issued to a non-existent company, by a non-jurisdictional officer, the ... Reopening of assessment - approval u/s 151(1) in the case on hand has been granted by the ACIT Range – 7 and not by the CIT as mandated under the Act - Held that:- The Hon’ble Delhi High Court in the case of Pr. CIT vs N.C. Cables [2017 (1) TMI 1036 - DELHI HIGH COURT] held that approval under section 151 is to be made after application of mind. It is not so in this case as mechanical approval is given by an officer who is not authorised to do so in law. Thus on this count also we hold that the reopening is bad in law. Further a perusal of the reasons recorded shows non-application of mind by the AO. Directions have been given by the DDIT (Inv.) Unit-2(1), Kolkata, vide communication cited. The reasons recorded are only based on such directions. The reopening was done in compliance in such directions. - Decided in favour of assessee. Issues Involved1. Validity of the reopening of the assessment.2. Jurisdictional authority of the officer issuing the notice.3. Non-application of mind by the Assessing Officer.4. Approval for reopening beyond the period of four years.Detailed Analysis1. Validity of the Reopening of the AssessmentThe primary issue addressed in the judgment is the validity of the reopening of the assessment under Section 147 of the Income Tax Act, 1961. The assessee's counsel argued that the notice for reopening was issued to a non-existing company, M/s. Navalco Commodities Pvt. Ltd., which had merged with the assessee company effective from 01/04/2010. The Tribunal held that issuing a notice to a non-existent entity is bad in law, and consequently, the reassessment framed pursuant to such notice is also invalid.2. Jurisdictional Authority of the Officer Issuing the NoticeThe assessee contended that the notice was issued by the ITO Ward 7(3), who did not have jurisdiction over the assessee. The Tribunal found merit in this argument, noting that the remand report indicated that the assessee was assessed by the ITO Ward 2(4). Therefore, the notice issued by a non-jurisdictional officer was deemed invalid due to the lack of proper application of mind.3. Non-application of Mind by the Assessing OfficerThe Tribunal examined whether the Assessing Officer (AO) had independently applied his mind in recording the reasons for reopening. The reasons for reopening were based on directions from the DDIT (Inv.) Unit-2(1), Kolkata. The Tribunal cited multiple case laws, including the Hon’ble Delhi High Court's decision in CIT vs. Orient Craft Ltd., which emphasized that the reasons recorded must reflect the AO's independent belief that income has escaped assessment. The Tribunal concluded that the AO had merely acted on directions without independent verification, rendering the reopening invalid.4. Approval for Reopening Beyond the Period of Four YearsThe reopening was also challenged on the grounds that it was beyond the statutory period of four years and lacked proper approval as mandated under Section 151(1) of the Act. The Tribunal noted that the approval was granted by the Additional Commissioner of Income Tax instead of the Commissioner of Income Tax, as required by the statute. Citing the Hon’ble Bombay High Court’s decision in Ghanshyamdas Khabrani vs. ACIT, the Tribunal held that such approval must be granted by the designated authority, and failure to do so invalidates the reopening.ConclusionThe Tribunal quashed the reassessment on multiple grounds: the notice was issued to a non-existent company, it was issued by a non-jurisdictional officer, the AO did not independently apply his mind, and the approval for reopening beyond four years was not granted by the appropriate authority. Therefore, the appeal of the assessee was allowed, and the reopening of the assessment was deemed invalid.