2016 (1) TMI 1274 - AT - Income Tax

Reopening of assessment - reasons to believe - Held that - Reopening in the case of assessee was done on the identical information and in respect of the same list of beneficiaries wherein the name of the assessee as well as name of Mr. Hirachand Kanuga appeared as beneficiaries. Even we find that the Tribunal has discussed about the satisfaction recorded by the Additional Commissioner of Income Tax on the reasons recorded by the AO wherein the Tribunal has reproduced the letter dated 26.03.10 of the Additional Commissioner of Income Tax showing that the permission was granted by the Additional Commissioner in respect of 22 assessees wherein the name of the assessee and his HUF appeared at Sl. Nos.1 & 2 in the said list and whereas the name of Hirachand Kanuga HUF and Mr. Hirachand Kanuga in individual capacity appeared at Sl. Nos.3 & 4. The Tribunal has given a categorical finding that the Additional Commissioner has simply sanctioned the proposal of initiating the proceedings under section 147 and he has nowhere recorded his satisfaction on the reasons recorded for reopening of the assessment. Further the Tribunal has also discussed about the merits of the reopening of the assessment and formation of belief by the AO for the said reopening and thereafter relying upon the decision of the Hon ble Delhi High Court in the case of Sarthak Securities Co. Pvt. Ltd. 2010 (10) TMI 92 - DELHI HIGH COURT as held that the reopening was bad in law as from the perusal of the reasons recorded and the order of rejection of objections the names of the companies were available with the authority and their existence was not disputed. The assessee in its objections had stated that the companies had bank accounts and payments were made to the assessee through banking channel. The identity of the companies was not disputed. Under these circumstances the initiation of proceedings under section 147 and issuance of notice under section 148 of the Act were to be quashed. - Decided in favour of assessee.

Summary

Issues Involved:
1. Reopening of assessment under section 147 of the Income Tax Act.
2. Validity of the reasons recorded by the Assessing Officer (AO) for reopening the assessment.
3. Proper sanction/approval under section 151(2) of the Income Tax Act.
4. Compliance with the procedure post-rejection of objections by the AO.

Issue-wise Detailed Analysis:

1. Reopening of Assessment under Section 147:
The main grievance of the assessee was against the reopening of the assessment under section 147 of the Income Tax Act. The reopening was based on information received from the investigation wing that a search operation in the case of M/s. Mahasagar Securities Pvt. Ltd. revealed fraudulent billing activities and bogus speculation profit/loss transactions. The name of the assessee appeared in the list of beneficiaries extracted from the computer data of Shri Mukesh Chokshi, Director of M/s. Mahasagar Securities Pvt. Ltd. Consequently, the AO reopened the assessment and taxed the entire sale consideration of shares under 'Income from other sources'. The Ld. CIT(A) confirmed the additions made by the AO.

2. Validity of Reasons Recorded by the AO:
The Tribunal found that the reasons recorded by the AO for reopening the assessment were without independent application of mind. The reopening was based solely on the report received from the Investigation Wing. The Tribunal cited the decision of the Hon'ble Delhi High Court in the case of "Sarthak Securities Co. Pvt. Ltd." which held that the formation of belief that income has escaped assessment is a condition precedent. The reasons must indicate independent application of mind by the AO, which was absent in this case.

3. Proper Sanction/Approval under Section 151(2):
The Tribunal noted that the Additional Commissioner of Income Tax had simply sanctioned the proposal for initiating proceedings under section 147 without recording his satisfaction on the reasons recorded by the AO. The Tribunal emphasized the importance of the superior officer's satisfaction, which must be based on an application of mind and due diligence. The Tribunal referred to the Hon'ble Supreme Court's observation in the case of Chhugamal Rajpal Vs S.P. Chaliha and the Hon'ble Delhi High Court's decision in United Electrical Co. Pvt. Ltd. Vs CIT, which highlighted the necessity of the superior officer's satisfaction being recorded, even if briefly.

4. Compliance with Procedure Post-Rejection of Objections:
The Tribunal observed that the AO did not wait for four weeks after rejecting the assessee's objections before proceeding with the assessment, thereby violating the principles laid down by the Hon'ble Jurisdictional High Court in the case of Asian Paints Ltd. and Aroni Commercials Ltd. The High Court had mandated that the AO must wait for four weeks after rejecting the objections before proceeding further, to allow the assessee time to seek legal recourse.

Conclusion:
The Tribunal concluded that the reassessment proceedings based on the notice issued under section 148 were bad in law due to the lack of independent application of mind by the AO, improper sanction by the Additional Commissioner, and non-compliance with the mandated procedure post-rejection of objections. Consequently, the reassessment order made under section 143(3) r.w. section 147 was quashed, and the additions made in the reopened assessment proceedings were deleted. The appeals filed by the assessee were allowed.

Order Pronounced:
The order was pronounced in the open court on 08.01.2016.