2024 (11) TMI 952 - AT - Income Tax

AO cannot reopen assessment under Section 147 when incriminating material found at third-party premises requires Section 153C proceedings instead

AGS Developers Pvt. Ltd. Versus ITO, Ward -1 (4), New Delhi

The ITAT Delhi ruled that the AO improperly reopened assessment under Section 147 based on incriminating material found during search operations at a ... Reopening of assessment - reason to believe - borrowed opinion v/s independent inquiry - addition u/s 68 - Investigation Wing in its report had recorded that true nature of such transactions being sham transactions/accommodation entries and the entry giving entities had been shown to be mere shell companies of no means - as contended that the opinion of the AO is borrowed as it has highly relied on the report of Investigation Wing without independently verifying the issue and correct facts. HELD THAT:- There is no dispute that the re-opening of assessment u/s 147 of the Act has it genesis in the search operation carried out by the Revenue at the premises of one Shri Tarun Goyal wherein it was found that the assessee had obtained entry from the entry operator. This transaction is the subject matter of dispute between the parties herein. AO made addition being share application received from M/s. Tauraus Iron & Steel Company Ltd. u/s 68 of the Act treating non-genuine transaction and accommodation entry. Assessee during the course of hearing, submitted that even if it is assumed without admitting the same that the transaction is not a genuine transaction then also the assessment could not have been re-opened on the incriminating material found during the course of search. AO was not justified in re-opening of the assessment u/s 147 of the Act. The proper course if any, under the facts of the present case when admittedly the incriminating material which is the basis of re-opening of assessment was recovered during the course of search at the premises of the third party would be proceedings u/s 153C of the Act. The impugned order passed by the AO thus, cannot be sustained. CIT(A) failed to advert to the submissions made by the assessee and the specific grounds taken before him regarding legality of re-opening of assessment. Issues Involved:1. Validity of the reopening of assessment under Section 147/148 of the Income Tax Act, 1961.2. Legality of the assessment order based on alleged accommodation entries and additions under Section 68.3. Violation of principles of natural justice.Issue-wise Detailed Analysis:1. Validity of the Reopening of Assessment:The primary issue raised by the assessee was the validity of the reopening of assessment under Section 147/148 of the Income Tax Act, 1961. The assessee contended that the reopening was based on an invalid notice under Section 148, which lacked a valid legal foundation. The reopening was initiated on the basis of information from a search operation conducted at the premises of a third party, which allegedly revealed that the assessee had received accommodation entries. The assessee argued that the proper procedure should have been under Section 153C, as the information was derived from a search. The Tribunal, agreeing with the assessee, cited precedents indicating that the reopening should have been conducted under Section 153C, as the material was incriminating and found during a search of a third party. The Tribunal quashed the assessment on these grounds, emphasizing that the AO's action was not justified under Section 147.2. Legality of Assessment Order Based on Accommodation Entries:The assessee challenged the addition of INR 25,00,000 under Section 68, arguing that the assessment was based on borrowed satisfaction without independent inquiry by the AO. The Tribunal noted that the AO relied heavily on the investigation report without conducting an independent verification of the facts. The Tribunal found that the AO's assessment lacked the necessary independent application of mind, as it was based on the investigation wing's report. However, since the assessment itself was quashed due to improper reopening, the Tribunal did not need to address this issue further.3. Violation of Principles of Natural Justice:The assessee also claimed a violation of the principles of natural justice, arguing that there was a lack of opportunity for cross-examination and inadequate issuance of a show-cause notice. The Tribunal did not specifically address this issue in detail, as the assessment was already quashed on procedural grounds related to the reopening. However, the Tribunal's decision indirectly acknowledged the procedural lapses by emphasizing the need for proper legal procedures in reopening assessments.Conclusion:The Tribunal quashed the assessment order, holding that the reopening under Section 147 was invalid as it should have been conducted under Section 153C due to the nature of the incriminating material found during a third-party search. Consequently, the additional grounds regarding the merits of the additions and alleged procedural violations were not adjudicated, as they became academic following the quashing of the assessment. The appeal was partly allowed.