2015 (11) TMI 1800 - AT - Income Tax

Reopening of assessment u/s 147 - accommodation entries receipt - non independent application of mind by AO - HELD THAT - In the case on hand the assessee has submitted that it received Rs. 5 lakhs from M/s Zenith Estates Ltd. on 7.8.2004 vide cheque as advance against sale of property vide agreement on sale dt. 4.8.2004. This fact was recorded in the books of accounts of the assessee and the original return of income contained the audited accounts. This advance received was returned to M/s Zenith Estates Ltd. on 21.03.2009 consequent to cancellation of the agreement to sell. All these documents were with the Assessing Officer. In fact the assessee filed his objections also Copies of all the documents were filed. In the reasons recorded the Assessing Officer states that the assessee has received credit of Rs. 5 lakhs and has not reflected it in the books of accounts. This is against the facts of the case. The AO also records that the assessee has accepted that it had taken an accommodation entry. This is also incorrect fact. This is not a case where the share capital is introduced by the company. The amount received as advance was returned. The assessee in his letter dt. 7.12.2011 has specifically asked for the statements of Mr.D.N.Taneja and Shri SK Gupta and ledger account of Sh.G.Taneja and copy of appraisal report in the case of TDS proof. It was specifically stated that Shri DN Taneja was never associated with the assessee company. It is also specifically submitted that Mr.SK Gupta has not mentioned that he received Rs. 5 lakhs in cash in lieu of the cheque issued by Zenith Estates Ltd to the assessee. AO has not independently apply his mind to come to a conclusion that income chargeable to tax has escaped assessment. Thus the reasons recorded and consequent reopening of the assessment in my view are bad in law. Hence uphold the statements of the assessee and quash the reopening of the assessment as bad in law. - Decided in favour of assessee.

Summary

Issues Involved:
1. Reopening of the assessment.
2. Application of mind by the Assessing Officer (AO) while recording reasons for reopening.
3. Validity of the reasons recorded for reopening the assessment.
4. Evidence and material considered for reopening the assessment.
5. Compliance with legal requirements for reopening the assessment.

Issue-wise Detailed Analysis:

1. Reopening of the Assessment:
The assessee challenged the reopening of the assessment for the Assessment Year (A.Y.) 2005-06, arguing that the Assessing Officer (AO) did not independently apply his mind to the material referred to while recording reasons for reopening. The AO had recorded reasons based on information received from the Central Circle 18, which indicated that the assessee had received accommodation entries from a known entry provider, Shri S.K. Gupta.

2. Application of Mind by the AO:
The assessee contended that the AO did not form a prima facie opinion based on the material available. The AO's reasons for reopening were primarily based on information from the Investigation Wing and statements made by third parties, without independent verification or application of mind to the specific facts of the case.

3. Validity of the Reasons Recorded for Reopening the Assessment:
The AO's reasons for reopening included references to a survey conducted on Shri S.K. Gupta, who admitted to providing accommodation entries to various entities, including the assessee. The AO concluded that the assessee had received Rs. 5 lakhs as an accommodation entry, which was not reflected in its books of accounts. However, the assessee argued that this amount was received as an advance against the sale of property and was duly recorded in its books.

4. Evidence and Material Considered for Reopening the Assessment:
The AO's reasons for reopening were based on several documents, including statements from Shri D.N. Taneja and Shri S.K. Gupta, ledger accounts, and appraisal reports. The assessee submitted that it had provided all necessary documents, including the agreement for the advance received and its subsequent return. The AO's assertion that the assessee did not reflect the Rs. 5 lakhs in its books was factually incorrect, as the amount was recorded and returned upon cancellation of the agreement.

5. Compliance with Legal Requirements for Reopening the Assessment:
The judgment referenced the Hon'ble Delhi High Court's decision in Principal Commissioner of Income Tax vs. G & G Pharma India Ltd., which emphasized that the AO must apply his mind to the materials and form a reasoned belief that income has escaped assessment. The court held that the AO's failure to independently verify the materials and merely relying on information from the Investigation Wing did not satisfy the legal requirement for reopening the assessment.

Conclusion:
The tribunal concluded that the AO did not independently apply his mind and relied on incorrect facts while recording reasons for reopening the assessment. The reasons recorded were deemed insufficient and invalid, leading to the quashing of the reopening of the assessment. The assessee's appeal was allowed, and the reopening of the assessment was declared bad in law.