2013 (2) TMI 75 - HC - Income Tax

Reopening of assessment - assessee has received accommodation entries - Held that - Perusal of the assessment order that the assessee had declared the amount of Rs.5,10,130/- in its return of income as short term capital gains on sale of shares. The fact however remains that the amount had been declared in the return of income as capital gains and what the AO did was only to change the nomenclature from capital gains to undisclosed income . The assessment has been reopened after a lapse of about 8 years from the end of the relevant assessment year. As already noted, according to the revenue the assessee had declared the amount as capital gains in the return of income. There was thus no failure to disclose the income. Consequently, there is no escapement of income. The change of the nomenclature from capital gains to undisclosed income does not result in any escapement of income since the rate of tax is the same under both heads - reassessment was without jurisdiction - in favour of assessee.

Summary

Issues:
1. Jurisdiction of the Assessing Officer to reopen the assessment.
2. Addition of undisclosed income on the basis of accommodation entries.
3. Challenge to the Tribunal's decision on merits.

Jurisdiction of the Assessing Officer to reopen the assessment:
The case involved appeals filed by the revenue under section 260A of the Income Tax Act, 1961, relating to the assessment year 1999-2000. The assessment was reopened under section 147 of the Act, and the CIT(Appeals) quashed the assessment on the ground of lack of jurisdiction of the Assessing Officer (AO) to reopen the assessment. The Tribunal agreed with the assessee that the AO did not have the jurisdiction to reopen the assessment after almost 8 years, as there was no material to show that the short term capital gains declared were undisclosed income. The Tribunal held that the reassessment was without jurisdiction, emphasizing that there was no escapement of income chargeable to tax. Consequently, the Tribunal allowed the assessee's appeal, leading to the dismissal of the revenue's appeals in ITA Nos. 1462 and 1463 of 2010.

Addition of undisclosed income on the basis of accommodation entries:
In the reassessment, the AO contended that the declared capital gains of Rs.5,10,130 were actually undisclosed income obtained through an accommodation entry from My Money Security Pvt. Ltd. The AO changed the nomenclature from "capital gains" to "undisclosed income" for taxation purposes. However, the Tribunal noted that the amount had been declared as capital gains in the return of income, and changing the nomenclature did not result in any escapement of income since the tax rate was the same for both categories. As there was no failure to disclose the income, the Tribunal found no under-assessment or escapement of income, leading to the conclusion that the reassessment lacked jurisdiction. The revenue's appeals in ITA Nos. 1462 and 1463 of 2010 were dismissed due to the lack of any substantial question of law arising from the Tribunal's decision.

Challenge to the Tribunal's decision on merits:
The appeal filed by the revenue in ITA No.1463 was against the Tribunal's decision in the assessee's appeal in ITA No.2476/Del/2007. The Tribunal's decision to quash the reassessment on the grounds of lack of jurisdiction rendered the revenue's appeal on merits academic and it was not decided by the Tribunal. The Tribunal's decision was upheld, leading to the dismissal of all three appeals filed by the revenue, including the challenge against the cancellation of the penalty imposed under section 271(1)(c) of the Act.

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