2025 (7) TMI 1102 - AT - Income Tax

ITAT Delhi allows appeal: Section 148 notice invalid for dissolved firm, Section 68 additions impermissible for stock exchange trades

The ITAT Delhi ruled in favor of the assessee on two grounds. First, the tribunal set aside the assessment as the notice u/s 148 was not served on the ... Reopening of assessment u/s 147 in the name of dissolved firm which is a dead entity - addition u/s 68 - HELD THAT:- As the notice u/s 148 of the Act has not been served on the partners of the Firm immediately before its dissolution in compliance, in compliance with provision of Section 283(2) of the Act, the assessment framed based on such notice deserves to be set aside. Thus, we allow Ground No. 1 of the Assessee’s Appeal. Invocation of provision of Section 68 - As per the assessment orders, the Assessee firm had traded in several distinct scripts. It is the case of the Assessee that all trades (buy and sell) had been executed with Stock Exchanges in accordance within the framework of applicable regulatory provisions and the transactions were routed through Demat accounts and were recorded in its books of account which were subjected to audit. It is an undisputed fact that the Assessee firm had not claimed any expense respectively on account of brokerage. Therefore, the question of disallowance thereof did not arise. AO nowhere in the assessment order mentioned that the said amount being the amount treated as unexplained cash credit in terms of section 68 Act which has been credited into the books of the said partnership firm. Apart from the same, the said money for Assessment Year 2013-14 and for AY 2013-14 had not been credited into the books of the assessee firm. It is the case of the Assessee that the said loss was actually resulted in an out go and depletion of funds. Therefore, the said business loss could fall within the expression (unexplained cash credit). The out go/loss has resulted in a debit transaction, rather than credit transactions. Therefore, the A.O. could not have made the addition u/s 68 of the Act. As relying on MARUT NANDAN & CO [2025 (2) TMI 829 - ITAT DELHI]additions made u/s 68 of the Act in both the Assessment Years are not permissible. Asssessee appeal allowed. ISSUES: Validity of initiation of proceedings and issuance of notice under section 147/148 of the Income-tax Act in the name of a dissolved/non-existing partnership firm.Compliance with the service of notice requirements under section 283(2) of the Income-tax Act when a firm has been dissolved.Whether assessment orders passed against a dissolved firm constitute a valid assessment under section 189 of the Income-tax Act.Validity of notices and orders issued under sections 148A(b), 148A(d), and 148 in a faceless manner as required under section 151(1A) of the Income-tax Act.Legality of additions made under section 68 of the Income-tax Act where no amount was credited to the books of accounts and the transaction resulted in a business loss.Whether additions under section 68 can be sustained when the claimed loss results in debit transactions rather than unexplained cash credits.Effect of non-service or defective service of notices on the validity of reassessment orders under sections 147 read with 144B of the Income-tax Act. RULINGS / HOLDINGS: The issuance of notice under section 148 in the name of a dissolved/non-existing partnership firm is invalid and liable to be quashed as it violates section 283(2) of the Income-tax Act, which mandates service on partners immediately before dissolution.Section 189 of the Income-tax Act mandates that assessment of a dissolved firm shall be made 'as if no such dissolution had taken place,' thereby validating assessments in the name of dissolved firms for tax liability purposes.Notices and orders issued under sections 148A(b), 148A(d), and 148 must comply with faceless assessment provisions under section 151(1A); non-compliance renders such notices/orders liable to be quashed (though this ground was not pressed in the present case).Additions under section 68 are not sustainable where the alleged unexplained cash credit was never credited in the books and the transactions resulted in business losses, which are debit transactions, not falling within 'unexplained cash credit.'The reassessment orders passed under sections 147 read with 144B based on invalid notices are liable to be set aside. RATIONALE: The Court applied section 189 of the Income-tax Act, which provides that assessments of dissolved firms shall be made as if dissolution had not occurred, ensuring tax liability continuity.Section 283(2) was interpreted to require that notices relating to dissolved firms must be served on partners immediately before dissolution, not on the dissolved entity itself; failure to do so invalidates the notice.Reliance was placed on authoritative precedent, including the Supreme Court decision in Commissioner of Income Tax, New Delhi Vs. Maruti Suzuki India Limited, affirming that notices issued in the name of dissolved firms are invalid.The Court followed the Tribunal's reasoning in Marut Nandan & Co., holding that section 68 additions are impermissible where claimed losses represent debit transactions rather than unexplained cash credits.The Court noted that mere incorrect invocation of provisions does not invalidate assessments, but in the present facts, the additions under section 68 lacked merit given the nature of transactions.The Court refrained from adjudicating other grounds as they became academic after allowing key grounds related to notice validity and section 68 additions.