2025 (5) TMI 1781 - AT - Income Tax

Validity of order u/s 147 / 143(3) as passed without jurisdiction mere change of opinion and barred by limitation thus bad in law and void-ab-initio - notice issued beyond a period of 4 years HELD THAT - From the perusal of the track statement of the Indian Post it is clear that the document through which the notice u/s 148 was issued to the assessee was actually delivered to the postal authorities for the service on 01.04.2014. As in the case of Sumanjeet Agarwal 2022 (9) TMI 1384 - DELHI HIGH COURT has held that drawing and signing of the notice is not sufficient and the AO should ensure due dispatch of the notice to the addressee. It is only upon due dispatch the notice can be said to have been issued. In the instant case as could be observed the notice u/s 148 was actually dispatched on 01.04.2014 therefore it is barred by limitation. Eligibility of reasons to believe - We find that assessee has truly and fully disclosed all the material facts necessary for the purpose of assessment during the course of assessment proceedings carried out. In the original assessment proceedings the AO after considering all the material has formed an opinion. There was nothing more to disclose and a person cannot be said to have omitted or failed to disclose something when of such thing he had no knowledge. Not only material facts were disclosed by the assessee but the same was fully scrutinized by the AO in the original assessment proceedings and figure of income as well as the deductions were worked out by the AO. The claim of depreciation LPSE receipts and capitalization were duly disclosed in the Profit Loss account which were available with the AO while framing the assessment u/s 143(3) of the Act. Apex court in the case of CIT Vs. Kelvinator of India Ltd 2010 (1) TMI 11 - SUPREME COURT has laid down that the assessing officer has no power to review; he has the power to re-assess but re-assessment has to be based on fulfilment of certain pre -condition and if the concept of change of opinion is removed then in the garb of re-opening the assessment the review would take place. One must treat the concept of Change of opinion as an in-built test to check abuse of power by the assessing officer. Decided in favour of assessee.

The core legal questions considered by the Tribunal in these appeals relate primarily to the validity and legality of reassessment proceedings initiated under section 147 read with section 148 of the Income Tax Act, 1961 (the Act), specifically:

Whether the ex-parte order passed by the Commissioner of Income Tax (Appeals) [CIT(A)] without affording reasonable opportunity of hearing to the assessee was valid or violative of principles of natural justice.
Whether the reassessment proceedings initiated under section 147/148 of the Act were valid or barred by limitation under the proviso to section 147 and section 149 of the Act.
Whether the reassessment was initiated on the basis of a mere change of opinion without any new tangible material or information, thereby rendering the proceedings void.
Whether the Assessing Officer had valid "reason to believe" that income had escaped assessment, a sine qua non for initiating reassessment under section 147.
Whether the Assessing Officer complied with the mandatory procedural requirements, including furnishing complete reasons recorded and communicating sanction for reopening as required under law.
Whether the additions made in reassessment on account of disallowance of depreciation, late payment surcharge and theft billing, short capitalization of personnel cost, and levy of interest under section 234B were justified.

Issue-wise Detailed Analysis:

1. Validity of Ex-parte Order by CIT(A)

The assessee contended that the CIT(A) passed the appellate order ex-parte without affording reasonable opportunity of hearing, which was beyond jurisdiction and violative of natural justice. The assessee argued that there was no default on its part in prosecuting the appeal and that the CIT(A) erred in dismissing the appeal on the ground of non-prosecution.

The Department suggested that if the assessee had grievance regarding denial of hearing, the matter should be remanded to the CIT(A) for fresh adjudication after considering written submissions.

The Tribunal observed that the assessment year in question was 2007-08 and more than 15 years had elapsed. Since the CIT(A) had also decided the appeal on merits, the Tribunal chose to decide the appeal on the basis of material on record and submissions made before it, partially allowing the grounds relating to denial of hearing. This approach avoided delay and multiplicity of proceedings.

2. Validity of Reassessment Proceedings under Section 147/148

The assessee challenged the reassessment order on multiple grounds:

Reassessment was barred by limitation under the first proviso to section 147 as the notice under section 148 was issued beyond four years from the end of the relevant assessment year.
Reassessment was based on mere change of opinion without any new tangible material or information.
There was no valid "reason to believe" escapement of income.
Reasons recorded for reopening were incomplete and sanction under section 151 was not communicated.
Notice under section 148 was not validly issued as it was dispatched after expiry of limitation period.

Limitation under Proviso to Section 147:

The Tribunal examined the proviso to section 147 which restricts reopening beyond four years from the end of the relevant assessment year unless the income escaped assessment is due to failure of the assessee to disclose fully and truly all material facts necessary for assessment.

It was noted that the reasons recorded for reopening did not allege any failure on the part of the assessee to disclose material facts. The Assessing Officer relied on information already available in the original assessment and did not point to any new material. The Tribunal relied on a series of judicial precedents which held that reopening beyond four years without specific allegation of failure to disclose material facts is barred by limitation and void.

The Tribunal further observed that the original assessment was completed after thorough inquiry and investigation, and the issues raised in reassessment had been considered in detail at that stage.

Notice under Section 148 and Dispatch Date:

The assessee produced documentary evidence showing that although the notice bore the date 31.03.2014, it was actually dispatched on 01.04.2014, i.e., after the expiry of the limitation period. The Tribunal relied on the Delhi High Court decision which held that a notice is deemed "issued" only upon due dispatch to the assessee, not merely upon drawing and signing.

Accordingly, the Tribunal held that the notice under section 148 was issued beyond the limitation period and was invalid.

Mere Change of Opinion:

The Tribunal analyzed whether reassessment was initiated on the basis of new material or merely a change of opinion. It was found that the Assessing Officer relied on the same material that was available and considered in the original assessment, including the order of the Delhi Electricity Regulatory Commission (DERC) which had been set aside by the Appellate Tribunal for Electricity prior to original assessment completion.

The Tribunal cited authoritative judgments holding that reassessment cannot be based on mere change of opinion or reappraisal of already available facts. Since no new tangible material emerged post original assessment, the reassessment was held to be invalid.

Reason to Believe:

The Tribunal emphasized that "reason to believe" must be based on honest and reasonable grounds supported by tangible material, not on suspicion or conjecture. The reasons recorded were vague and did not demonstrate any credible basis for belief that income had escaped assessment.

The Tribunal referred to Supreme Court and High Court precedents clarifying the standard of "reason to believe" and held that the Assessing Officer failed to meet this standard.

Incomplete Reasons and Non-communication of Sanction:

The Tribunal noted that the Assessing Officer did not provide complete reasons recorded for reopening, including the sanction obtained under section 151. The law requires that the reasons and sanction be communicated to the assessee to enable effective defense.

The Tribunal relied on judicial pronouncements mandating furnishing of complete reasons and sanction, and held that failure to do so renders reassessment proceedings invalid.

Limitation under Section 149:

The Tribunal observed that reasons recorded were communicated after the expiry of six years from the end of the relevant assessment year, violating the limitation prescribed under section 149. This further invalidated the reassessment proceedings.

3. Treatment of Other Grounds on Merits

Since the reassessment proceedings were held void-ab-initio on legal grounds of limitation, lack of valid reason to believe, and procedural lapses, the Tribunal did not adjudicate the other grounds relating to disallowance of depreciation, additions on account of late payment surcharge and theft billing, capitalization of personnel cost, and levy of interest under section 234B.

Significant Holdings:

"In view of the absence of specific charge in the reasons recorded of any failure on the part of the appellant to disclose fully and truly all material facts necessary for assessment, the reassessment initiated under section 148 of the Act after the expiry of four years from the end of the relevant assessment year is barred by limitation and consequently the impugned order is beyond jurisdiction, bad in law and void-ab-initio."

"The notice under section 148 was actually dispatched on 01.04.2014, therefore it is barred by limitation."

"The reassessment proceedings initiated on the basis of mere reappraisal of existing facts without any new tangible material amount to mere change of opinion and are not permissible in law."

"The assessing officer must have 'reason to believe' based on tangible material and not mere suspicion or conjecture to initiate reassessment proceedings."

"Failure to provide complete reasons recorded and communicate sanction for reopening violates principles of natural justice and renders reassessment proceedings invalid."

"Since the reassessment proceedings are held void-ab-initio on legal grounds, the other grounds of appeal on merits become academic and are not adjudicated."

The Tribunal, after detailed examination of facts, law, and precedents, quashed the notices issued under section 148 and the consequent reassessment orders passed under section 147/143(3) for the assessment years 2007-08 and 2008-09 in the cases of both assessee companies. The appeals were allowed accordingly.

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