2024 (7) TMI 1371 - AT - Income Tax

ITAT quashes Section 148 reopening for lack of fresh material on disclosed share transactions

Hero Motocorp Ltd. (as successor of Hero Investment P. Ltd.) Versus DCIT, Circle-11 (1), New Delhi.

Hero Motocorp Ltd. (as successor of Hero Investment P. Ltd.) Versus DCIT, Circle-11 (1), New Delhi. - TMI Issues Involved:1. Validity of the reassessment order dated 29.12.2018.2. Applicability of Section 28(iv) of the Income Tax Act, 1961, concerning the alleged benefit accrued to the assessee from the acquisition of shares at a discount.Issue-wise Detailed Analysis:Issue No. 1: Validity of the Reassessment OrderReason to Believe and Tangible Material:The reassessment proceedings under Section 147 of the Act can only be initiated if the Assessing Officer (AO) has 'reason to believe' that income has escaped assessment based on tangible and reliable information. The AO's belief must be honest and reasonable, not based on suspicion, gossip, or rumor. The AO's reasons for reopening should demonstrate a reasonable belief formed on some basis or foundation, not mere suspicion.Facts and Allegations:The AO alleged that the assessee acquired shares at a 50% discount, which was not disclosed fully and truly during the original assessment. The AO relied on the Share Purchase Agreement and the JV Agreement to argue that the shares should have been acquired at fair market value (FMV). The AO also noted that the assessee expedited the transaction, incurring interest costs, and concluded that the benefit by way of discount was in lieu of concessions granted to Honda.Analysis and Conclusion:The Tribunal found that the AO's reasons were based on his perception and not on any tangible material. The negotiated price of Rs. 739 per share was an off-market arrangement, and the comparison with the stock exchange price was inappropriate. The JV Agreement restricted the marketability of shares, making the negotiated price reasonable. The Tribunal also noted that the price of Rs. 739 per share was accepted by the Authority for Advance Ruling (AAR) in Honda's case. The Tribunal concluded that the AO's belief was based on conjectures and surmises, not on tangible material.Disclosure of Material Facts:The Tribunal noted that the transaction was disclosed at various stages, including public announcements, Share Transfer Agreement, payment to Honda, and during the original assessment proceedings. The AO had access to all relevant documents and information. The Tribunal concluded that there was no failure on the part of the assessee to fully and truly disclose all material facts.Judicial Precedents:The Tribunal relied on various judicial pronouncements, including the Supreme Court's judgment in Sheo Nath Singh vs. ACIT and the Delhi High Court's judgment in Krown Agro Foods (P) Ltd vs. ACIT, to emphasize that mere suspicion is not enough for reopening an assessment.Final Decision:The Tribunal held that the reassessment proceedings lacked valid 'reason to believe' and were based on mere suspicion. The reassessment order was quashed.Issue No. 2: Applicability of Section 28(iv) of the ActAlleged Benefit and Discount:The AO alleged that the assessee received a benefit by acquiring shares at a discount, which should be taxed under Section 28(iv) of the Act. The AO argued that the discount was in lieu of concessions granted to Honda.Analysis and Conclusion:The Tribunal found no evidence to support the AO's allegation that the license fee paid by HHML to Honda was in lieu of the alleged discount. The Tribunal noted that the license fee was for the right to use technology and was paid by HHML, a separate legal entity. The Tribunal also observed that the payment of license fee was examined and accepted by the Transfer Pricing Officer (TPO) as being at arm's length.Nature of Shares and Investments:The Tribunal emphasized that the shares of HHML were held as long-term investments and not as stock-in-trade. The acquisition of shares was for holding a controlling stake, not for trading. The Tribunal relied on various judicial precedents, including the Delhi High Court's judgment in Unitech Holdings Ltd. v. DCIT, to conclude that the provisions of Section 28(iv) do not apply to long-term investments.Monetary Benefit and Real Income:The Tribunal noted that Section 28(iv) applies only to benefits received in a form other than money. The alleged benefit in this case was monetary, and therefore, outside the purview of Section 28(iv). The Tribunal also emphasized that only real income, not notional income, can be taxed.Final Decision:The Tribunal held that the provisions of Section 28(iv) do not apply to the alleged benefit, as the shares were held as long-term investments, and the benefit was monetary. The addition under Section 28(iv) was deleted.Conclusion:The Tribunal quashed the reassessment order and deleted the addition under Section 28(iv) of the Act, deciding all relevant issues in favor of the assessee. The appeal was allowed.