2020 (12) TMI 1065 - AT - Income Tax

Tribunal Invalidates Reassessment & Income Addition, Orders Void Ab Initio

Mr. J.S. Gujral, Ranjeet Singh, Sanjiv Narayan, Mr. Krishna Kumar Pant Versus DCIT, Circle-8 (1), New Delhi.

The Tribunal allowed all appeals, ruling that the reassessment proceedings under Section 147 were invalid, the addition of Rs. 1,44,24,000 as income under ... Reopening of assessment u/s 147 - AO has held that there is an income taxable in hands of the appellant as “perquisites” in terms of section 17(2)(iii) r/w section 2(24)(iv) - HELD THAT:- We fail to appreciate the action of Ld AO in presuming that there is a notional benefit derived by taking into consideration the FMV. As held above, in section 17(2)(iii) legislature has made “Value of benefit” provided directly linked to the “cost” incurred by the employer in either providing the benefit “free of cost” or “at concessional rate”. Undisputedly cost of shares of M/s Eltek for M/s SGS is ₹ 10/- per share and the shares have been transferred by M/s SGS to the appellant at the same price i.e., ₹ 10/- per share, there is therefore no taxable perquisite arising in this case. Unable to uphold the validity to assumption of jurisdiction u/s 147. While recording reasons, Ld AO should have applied his own mind to first determine whether provisions of section 17(2)(iii) are at all applicable. A mere perusal of “reasons recorded” demonstrates that there is no independent application of mind by the AO on following crucial issues, that is - Is there a “Benefit” which is taxable? - What should be the Value? and Under which provision of Act is the income allegedly escaping is taxable? Lack of independent application of mind by the Ld AO is also apparent from the fact that in the ‘reasons recorded’ u/s 148(2), he holds that benefit is taxable in hands of the ‘A’ u/s 17(2)(a)(i) r.w.s. 2(24)(iv) of the Act. Clearly there is no section 17(2)(a)(i) in statute. Even if it is presumed that CIT (A) of M/s SGS and the current Ld Assessing Officer intended to mention section 17(2)(i), then too it is applicable to Rent Free Accommodations and hence not relevant and applicable. This error is noted by Ld CIT (A) in the impugned order. In fact, Ld AO while passing the final order realized this and has therefore upheld taxability u/s 17(2)(iii) and not either u/s 17(2)(a)(i) or 17(2)(i) or section 56. In our considered opinion existence of a “Benefit” is a “Jurisdictional Fact” which at the outset must be demonstrated by the Ld. AO by determinative rules while assuming jurisdiction. Reasons recorded by the Ld AO in the instant case clearly shows that, nowhere Assessing Officer has recorded his satisfaction as to the correctness of the findings of the Ld CIT (A) in case of M/s SGS, nor has he recorded his finding as to how he has reached to a conclusion that income in the hands of the ‘A’ has escaped assessment. Observations made by Ld CIT (A) in case of M/s SGS are not binding upon the Ld. AO. Thus, we hold that assumption of jurisdiction u/s 147 is bad in law. - Decided in favour of assessee. Issues Involved:1. Legitimacy of reassessment proceedings under Section 147.2. Validity of the addition of Rs. 1,44,24,000 as income under the head 'Salaries'.3. Appropriateness of adopting the value of 'benefit' at Rs. 240 per share.4. Levy of interest under Section 234B.5. Overall validity of the orders passed by the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)].Issue-wise Detailed Analysis:1. Legitimacy of Reassessment Proceedings under Section 147:The appellant contested the initiation of reassessment proceedings under Section 147, arguing that there was no legitimate material to form a reason to believe that income liable to tax had escaped assessment. The Tribunal found that the AO did not independently verify the correctness of the findings from the CIT(A) in the case of M/s SGS Tekniks Pvt. Ltd. The AO's reasons for reopening were based on the CIT(A)'s observations without independent application of mind. The Tribunal cited the Supreme Court decision in Arun Kumar (286 ITR 89) to emphasize that the existence of a 'jurisdictional fact' is essential for the exercise of power. The Tribunal concluded that the AO's assumption of jurisdiction under Section 147 was invalid due to the lack of independent application of mind.2. Validity of the Addition of Rs. 1,44,24,000 as Income under the Head 'Salaries':The CIT(A) upheld the AO's addition of Rs. 1,44,24,000 as income under 'Salaries,' treating the transfer of shares at face value as a perquisite. The Tribunal examined Section 17(2)(iii) and Section 2(24)(iv) and noted that the 'value of benefit' is linked to the 'cost' incurred by the employer in providing the benefit. The Tribunal referred to the Calcutta High Court decision in PRS Oberoi (183 ITR 103) and the Supreme Court's approval in VM Salgaoear & Bros (243 ITR 393), which held that the cost to the employer is the determining factor. Since M/s SGS Tekniks Pvt. Ltd. acquired the shares at Rs. 10 per share and transferred them at the same price, there was no taxable perquisite. The Tribunal concluded that the addition of Rs. 1,44,24,000 was not justified.3. Appropriateness of Adopting the Value of 'Benefit' at Rs. 240 per Share:The Tribunal found that the AO's method of comparing the transaction value with the Fair Market Value (FMV) of shares was incorrect. The Tribunal cited the Hyderabad ITAT decision in KNB Investments Pvt. Ltd. (79 ITD 238), upheld by the Andhra Pradesh High Court (367 ITR 616), which held that there is no legal basis for valuing the benefit by considering the FMV of shares. The Tribunal emphasized that the statutory provisions did not support the AO's approach and concluded that the value of the benefit should not be determined based on FMV.4. Levy of Interest under Section 234B:The appellant argued that the income in dispute was tax deductible, and therefore, interest under Section 234B should not be levied. The Tribunal did not specifically address this issue in detail as the primary grounds were decided in favor of the appellant, rendering this issue moot.5. Overall Validity of the Orders Passed by the AO and the CIT(A):The Tribunal found that the orders passed by both the AO and the CIT(A) were void ab initio and bad in law due to the lack of independent application of mind and incorrect interpretation of statutory provisions. The Tribunal allowed the appeals filed by the appellants, concluding that the reassessment proceedings and the additions made were invalid.Conclusion:The Tribunal allowed all the appeals filed by the appellants, ruling that the reassessment proceedings under Section 147 were invalid, the addition of Rs. 1,44,24,000 as income under 'Salaries' was not justified, and the value of the benefit should not be determined based on FMV. The Tribunal's findings applied mutatis mutandis to the other three appeals, and all appeals were allowed.