2025 (7) TMI 292 - AT - Income Tax

Reopening of assessment - notice beyond four years - new tangible material to reopen - independent satisfaction of AO or borrowed satisfaction - primary contention of the AR is that the addition made in the hands of the assessee is merely based on the information received by the AO from the investigation wing and that the AO has not carried out any independent enquiry or applied his mind - a sum received in cash in the capacity as partner of the assessee added as undisclosed income. HELD THAT - We notice from the perusal of the materials received from the Investigation wind with regard to the seized material such as the statement recorded ledger copy etc. there is no clear indication that the impugned cash transaction is entered into with the assessee and there is no mention of assessee s name in any of the materials relied on. We further notice from the details of TDR Purchase containing the Ledger A/c also does not contain the assessee s name. We also notice that the primary reliance placed by the AO on the seized material a noting named Mehfus Bhai TDR A/c also does not contain the assessee s name. It is also an accepted position by the revenue that the TDR sold is not in the name of the assessee but in the name of M/s. M.K. Shelters-JV having a PAN- AAMFM2671H. From the perusal of the details relied as mentioned herein above it is not coming out clearly as to how the AO has come to the conclusion that the assessee firm which is not in operation from 2003 without even a bank account is being used for routing the cash. The letters received from the investigation wing as well the Central Circle mentions that the Mr. Mehfusbhai has allegedly received cash but no evidence is brought on record to evidence that the cash is received in his capacity as partner in the assessee firm and that the cash is routed through assessee. AO in the order of assessment has merely relied on the statement of Shri Akshay Doshi director of M/s.Bhoomi group and the seized documents received. AO in our considered view has not carried out any independent enquiry or has not brought any material on record in support of the addition made in the hands of the assessee. The finding of the AO that the assessee firm is in existence for routing the cash transaction on sale of TDR is not substantiated by any evidence. It is relevant to note that the Memorandum of Understanding for the sale of TDR is entered into with M K Shelters-JV. It is a settled position that an addition made merely based on a third party statement u/s 131 of the Act without bringing any corroborative evidence cannot be sustained. Considering the merits of the case we are of the view that the addition made by the AO merely by relying on the statement recorded u/s 131 without conducting or recording any independent findings or evidences is not sustainable. Hence we hold that the addition made in the hands of the assessee alleging that the cash transactions are routed through the assessee without any material evidence on record is liable to deleted. Ground No. 7 8 raised by the assessee is allowed. AO made the protective assessment in the hands of the assessee for the reason that the substantive addition is made in the hands of M/s. M.K. Shelters-JV - We have while deciding the issue for AY 2009-10 on merits have held that the AO for the purpose of making the addition did not bring any evidence on record in support of the contention that the assessee firm has been used to route the cash transaction. We further held that the addition merely based on the statement recorded without recording any independent finding is not sustainable. We notice that there is no change to the facts or the basis of making the addition for the years under consideration except that the addition is made on protective basis. Therefore in our considered view our decision on merits for AY 2009-10 is mutatis mutandis applicable for AY 2011-12 AY 2012-13 AY 2015-16 also. Whether AO has passed the assessment order without disposing of the objections raised by the assessee? - From the perusal of records we notice that the assessee has raised objections for reopening the assessment and that the AO in the order has not stated anything with regard to the objections disposing the said objections. In this regard we notice that in the case of M/s.Kesar Terminal Infrastructure Ltd 2025 (2) TMI 51 - BOMBAY HIGH COURT has considered similar issue of AO passing an order of reassessment without disposing off the objections raised by the assessee wherein held neither were the assessee s objections disposed of by a separate order nor was the assessee granted any reasonable opportunity of questioning the order disposing of the objections. In such circumstances the Court quashed the combined order on the ground of want of compliance with jurisdictional parameters.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal in these appeals concern:

• The validity and legality of reopening assessments under section 147 of the Income Tax Act, 1961, particularly whether the reopening was justified by new tangible material and whether proper jurisdiction was exercised.
• The applicability of section 147 versus section 153A/153C regarding assessments following search and seizure operations involving third-party information.
• Whether the Assessing Officer (AO) had independent satisfaction and corroborative evidence to reopen assessments and make additions, or whether reliance solely on third-party statements under section 131 without corroboration is sustainable.
• The correctness of additions made on the basis of alleged unaccounted cash receipts routed through the assessee, which was a dormant partnership firm with no transactions since 2003.
• Whether the principles of natural justice were violated by not allowing the assessee an opportunity to cross-examine the declarant whose statements formed the basis of additions.
• The validity of assessment orders passed without disposing of objections raised by the assessee against reopening, and whether such orders are void ab initio.

2. ISSUE-WISE DETAILED ANALYSIS

a) Validity of Reopening under Section 147

Legal Framework and Precedents: Section 147 permits reopening of assessment if the AO has reason to believe that income has escaped assessment. The reopening must be based on new tangible material and within prescribed time limits. The AO must record independent satisfaction, not merely rely on third-party information. Reopening beyond four years requires specific conditions. Also, when assessments arise from search and seizure, section 153A/153C is generally applicable.

Court's Interpretation and Reasoning: The Tribunal examined the reopening notices and the material relied upon, which consisted mainly of statements recorded under section 131 from a third party (Mr. Akshay Doshi) and seized digital data. The AO did not issue a notice under section 148 in some instances and did not conduct independent inquiry or bring corroborative evidence linking the assessee to the alleged cash transactions.

Key Evidence and Findings: The assessee was a dormant partnership firm with no bank account or transactions since 2003. The seized material and statements did not mention the assessee's name explicitly. The ledger accounts seized referred to "Mehfus Bhai TDR A/c" but did not link the cash receipts to the assessee. The TDR was owned and sold by a joint venture (M/s. M.K. Shelters-JV), not the assessee.

Application of Law to Facts: The AO's conclusion that the assessee was used to route unaccounted cash was based on surmises and third-party statements without independent verification. The Tribunal found that the AO failed to record independent satisfaction or produce corroborative evidence. The reopening was thus held to be without basis and unsustainable on merits.

Treatment of Competing Arguments: The revenue relied on the statements and seized documents, asserting that the cash was routed through the assessee. The assessee argued that no such transaction involved it and that the statements did not implicate the assessee. The Tribunal sided with the assessee, emphasizing the lack of direct evidence.

Conclusions: The reopening under section 147 was not justified on the facts and merits; additions based solely on third-party statements without corroboration cannot be sustained.

b) Applicability of Section 147 vs. Sections 153A/153C

Legal Framework: Assessments arising out of search and seizure are generally governed by sections 153A and 153C, which provide special procedures and timelines. Reopening under section 147 independently may be invalid if the assessment should have been made under these provisions.

Court's Reasoning: The AO reopened assessments under section 147 based on information from a third-party search. The assessee contended that this was improper and that section 153A/153C should have been invoked.

Findings: The Tribunal did not find it necessary to decide this point in detail since the appeals were allowed on merits. However, it noted that the reopening under section 147 without invoking section 153A/153C raised legal questions but left them open as academic.

c) Addition Based on Third-Party Statements and Corroboration

Legal Framework: It is settled law that additions based solely on third-party statements under section 131 without corroborative evidence are not sustainable. The AO must bring independent evidence linking the assessee to the alleged undisclosed income.

Court's Interpretation: The Tribunal noted that the AO relied heavily on the statement of Mr. Akshay Doshi and seized digital data but did not produce any direct evidence linking the assessee to receipt of cash or ownership of TDR.

Key Evidence: The ledger accounts and statements did not mention the assessee by name. The TDR was owned by the joint venture, not the assessee. The assessee had been dormant since 2003 without bank accounts or transactions.

Application: The AO's conclusion that the assessee routed cash transactions was based on conjecture and presumption, unsupported by any independent or corroborative evidence.

Conclusion: Additions based solely on third-party statements without corroboration were held unsustainable and liable to be deleted.

d) Violation of Principles of Natural Justice

Legal Framework: The principles of natural justice require that the assessee be given a fair opportunity to cross-examine witnesses or declarants whose statements are relied upon for making additions.

Court's Reasoning: The assessee contended that it was denied opportunity to cross-examine Mr. Akshay Doshi whose statement formed the basis of the addition.

Findings: The Tribunal noted this contention but did not dwell extensively as the appeal was allowed on merits. The issue was left open as academic.

e) Assessment Orders Passed Without Disposing of Objections

Legal Framework and Precedents: The Supreme Court in GKN Driveshaft (India) Ltd. v. ITO held that if the AO passes an assessment order without disposing of objections raised by the assessee against reopening, the order is void ab initio. High Courts have followed this principle, emphasizing the need for separate disposal of objections to uphold principles of natural justice.

Court's Interpretation: The assessee raised objections to reopening which were not disposed of before passing the assessment orders for AYs 2011-12, 2012-13, and 2015-16.

Key Evidence: The Tribunal relied on a recent judgment of the jurisdictional High Court which quashed assessment orders passed without disposing of objections, emphasizing breach of natural justice and fair play.

Application: The Tribunal held that the protective additions made for these years were also liable to be quashed on this legal ground.

Conclusion: The assessment orders for AYs 2011-12, 2012-13, and 2015-16 were held void for failure to dispose of objections, and the appeals were allowed accordingly.

3. SIGNIFICANT HOLDINGS

"It is a settled position that an addition made merely based on a third party statement under section 131 of the Act without bringing any corroborative evidence cannot be sustained."

"The AO in our considered view has not carried out any independent enquiry or has not brought any material on record in support of the addition made in the hands of the assessee."

"The finding of the AO that the assessee firm is in existence for routing the cash transaction on sale of TDR is not substantiated by any evidence."

"The addition made by the AO merely by relying on the statement recorded under section 131, without conducting or recording any independent findings or evidences is not sustainable."

"The addition made by the AO on protective basis for AY 2011-12, AY 2012-13 & AY 2015-16 does not survive on the legal ground that the AO passed the assessment order without disposing of the objections raised by the assessee."

"The assessment order passed without disposing of the objections raised by the assessee is void ab-initio."

Final determinations:

• For AY 2009-10, the addition of Rs. 3,24,55,000/- as business income was deleted on merits due to lack of evidence and corroboration.
• For AYs 2011-12, 2012-13, and 2015-16, protective additions were deleted on the legal ground that objections raised were not disposed of, rendering the assessment orders void.
• Other legal contentions regarding reopening beyond limitation and violation of natural justice were left open as academic due to the disposal on merits and legal grounds.