RAVI MEHRA, 1121, SECTOR 10, PANCHKULA 134109, HARYANA,HARYANA vs. INCOME TAX OFFICER, WARD-3, PANCHKULA, HARYANA

During the course of hearing, the Ld. AR submitted that the assessee is an individual earning income in the form of salary received from M/s Mehra Motors. During the year under consideration, the Assessee was also running a consultancy firm under the name and style of ‘M/s Arrant Business Solutions’, however, no income was generated from the said consultancy firm and such facts have been accepted by the AO/CIT(A) during the proceedings and also that the Assessee has no taxable income during the year. It was submitted that the assessee did not file return of income for the year under consideration since the total income was below the maximum amount not chargeable to tax i.e., Rs. 1,68,000/- on account of salary. It was further submitted that on the basis of information received from ADIT (Inv.), Unit -2 Kolkata alleging that the assessee had received an amount of Rs. 21,00,000/- and Rs. 29,00,000/-, the case of the assessee was selected u/s 147 of the Act and notice dated 30.03.2019 was issued u/s 148 of the Act. The ADIT (Inv.), Unit 2 Kolkata further alleged that the companies from whom the assessee has received funds, do not have any real business activity, further alleged that the transactions are used for layering of funds and such transaction is a sham transaction which found to be unexplained. The ld. AR submitted that after receiving notice u/s 148, the assessee filed return of income and requested to provide the copy of reasons recorded for reopening of the case, copy of approval obtained and copy of any statement/material relied upon. In response to the same, the assessee was provided with copy of approval sought u/s 151 of the Act and reasons recorded for reopening of the case, however, no copy of any material/statement relied upon for issuing notice u/s 148 of the Act was provided to the assessee till the end of assessment proceedings.

It was submitted that the Assessee filed objection against the reasons recorded which were disposed off by the Ld. AO in a very casual manner wherein no specific response to each objection has been given and in Para 3 of the disposal order, it has been stated that the loan received by the Assessee is a matter of investigation. It was submitted that during the course of assessment proceedings, the Assessee duly explained the facts and filed the confirmation from both the lenders resulting in establishing the identity, genuineness and creditworthiness of these parties. However, the Ld. AO did not accept the explanations and documents filed by the Assessee and made addition of Rs. 50,00,000/- merely on the basis of the report of Investigation Wing, Kolkata by treating the duly explained transactions of loan as un-explained credit entries u/s 68 of the Act.

It was submitted that the assessee, aggrieved with the order of Ld. AO, filed an appeal before the Worthy CIT(A), NFAC and during the course of the Appellate proceedings also, the assessee duly explained the nature of transaction and again filed the confirmation received from both the parties. However, the Worthy CIT(A) did not accept the contention of the Assessee and confirmed the addition made by the Ld. AO only on the grounds that no repayment of such loan has been made by the Assessee. It is worth mentioning here that repayment of loan is no criteria to judge the genuineness of the transaction when the identity, genuineness and creditworthiness of lenders stands established. Against the said findings and directions of the ld CIT(A), the assessee is in appeal before this Tribunal.

In light of aforesaid factual matrix, it was submitted that on the basis of information received by the AO from the investigation wing via insight portal and without making any independent verifications, the Ld. AO formed reasons to believe that the amount received by the Assessee is merely layering of funds which is also evident from observation given by the AO in the disposal of objections vide para 3 also, the same is reproduced asunder: “In next para, you have stated that the amount received by you in the bank account to the tune of Rs. 50,00,000,/- (Rs. 21,00,000/- through transfer entry/RTGS from M/s Ess Kay Niwas Pvt. Ltd. and Rs. 29,00,000/- from M/s Samsung Marketing Pvt. Ltd. through bank account maintained with HDFC Bank) was in shape of loan. This matter is of investigation. Therefore, this objection is also disposed off.”

From the perusal of the above observation, it is clear that the Ld. AO was himself not clear as to how the income of the assessee has escaped assessment and there is no tangible material and independent reason to believe as to how the amount of Rs. 50,00,000/- received by way of loan tantamount to the income of the Assessee. The observation of the Ld. AO, that the Assessee has not filed return of income and thus, the case is valid for reopening is incorrect as the assessee was not liable to file his income tax return as per the provisions of section 139(1) of the Act since his income was below the maximum amount not chargeable to tax and the AO has taken the same income as returned.

It was submitted that the case of the Assessee has been reopened only on the basis of information received from the ADIT(Inv), Unit-2, Kolkata and no independent investigation has been done by the Ld. AO. The said fact is also evident form the reasons recorded by the Assessing Officer, placed at Page No. 26 -27 of the Paper book, wherein there is no finding given as to how the income of the assessee has escaped assessment to the tune of Rs. 50,00,000/- as alleged. Thus, it is a clear case of borrowed satisfaction from the report of the investigation wing. Besides the above mentioned suspicion and borrowed satisfaction, the AO had not pointed any specific defect in the confirmations filed by the Assessee. No discrepancy with regard to the same were brought on record by the AO himself, rather he has completely overlook and did not discuss the said fact in his assessment order. It is wrong on the part of the AO that without making an independent enquiry and without application of mind on the facts of the assessee’s case, the AO has blindly relied upon the report of the Investigation Wing. The AO completely brushed aside the fact that the assessee had discharged its onus of proving identity, genuineness and creditworthiness of lenders, the AO has not brought any material on record to dislodge the version of the assessee.

It was submitted that it is settled law that no assessment u/s 148 can be made on the basis of borrowed satisfaction and that the re-assessment under section 148 is not meant for investigation, the AO has to have tangible material in his possession about the escapement of income before issuing the notice u/s 148 of the Act. Reliance in this regard is placed on the following judgments:

It was submitted that it is clear from the above judgments that re- assessment done purely on the basis of the report of the investigation wing and without making any independent enquiries by the AO deserves to be quashed. The same are applicable in the instant case as well, as the AO has even failed to establish as to how the amount received as loan by the Assessee is the income that has escaped assessment, when the assessee has even filed the confirmations. It was further submitted that even ld PCIT has not applied his mind and has given mechanical approval u/s 151 and even on this ground, the proceedings deserve to be set-aside.

On merits of the addition, it was submitted that as and when the assessee was asked about the loan amounting to Rs. 21,00,000/- and Rs. 29,00,000/- from M/s Ess Kay Niwas Pvt. Ltd. and M/s Samsung Marketing Pvt. Ltd received by the Assessee, he immediately field a detailed explanation along with the letter of confirmation along with the confirmed copy of accounts, placed at Page No. 18 – 22 of the paper book along with the banks statement in which the assessee received the money, placed at Page No. 13 -17 of the paper book. The Ld. AO pointed out no defect in these documents as is evident from the Assessment order itself. The said documents were duly furnished before the Worthy CIT(A) also, thus, the assessee duly discharged his onus of establishing the genuineness of the transaction and no doubt has been raised on such documentary evidences and the findings of CIT(A) that the amount has not been returned in full cannot be ground for making the addition. It was accordingly submitted that both on the legal issues as well as the merits, the re-assessment proceedings deserves to be quashed.

Per contra, the Ld. DR submitted that as regards the appellant's objections to reopening of the case u/s 147 of the Act and reasons recorded, he himself submitted that the AO had disposed off the same on 11.10.2019. The appellant's contention that the AO did not have 'reason to believe' for reopening is not borne out by the facts of the case as seen from record. It was submitted that credible information gathered on the basis of action/enquiry by the Investigation wing of the Department and thereupon shared with the Assessing officer is an authentic and sound basis and the latter, finding merit in the same and following due legal procedure, proceeded to take action u/s 147 of the Act and no anomaly is found in this action as rightly held by the ld CIT(A).

On merits, it was submitted that the assessee has submitted that the said sums were unsecured loans taken from NBFCs in the normal course of business and that he had repaid part of the same (Rs. 5,00,000/- to each) through bank entries dated -09.03.2022 and 17.03.2022. As during assessment proceedings, during appellate proceedings too, the appellant has been unable to explain with evidence the nature of the transactions and business dealings with the said two entities for which the latter supposedly gave unsecured loans to the appellant and did not claim repayment of the same despite so many years having lapsed since the transactions. Mere entries of Rs. 5,00,000/- each in the bank account to show return of part amount after about ten years of the said transactions fails to explain and prove the genuineness of the transaction. Simply stating that the so-called borrowings were from NBFCs and have to be / are being repaid does not absolve the appellant from the need to explain the true source and nature of the funds and establish the genuineness of the transactions, which he has failed to do. The facts of the case as mentioned in the Assessment Order remain unchanged - the AO observed that no transactions were made with the said entities by the appellant before or after the said transactions and that no evidence was brought forth to show that they had demanded repayment of the 'loans' given. The explanation given by the appellant thus fails the test of genuineness and human probabilities and thus, even on merits, the appeal of the assessee deserves to be dismissed.

We have heard the rival contentions and purused the material available on record. It is a settled legal proposition that for assumption of jurisdiction u/s 147, the Assessing Officer has to form a prima facie opinion on the basis of tangible material that there is an escapement of income, the opinion formed may be subjective but the reasons recorded or the information available on record must show that the opinion is not a mere suspicion, the reasons recorded and/or the documents available on record must show a nexus and relevancy to the opinion formed by the Assessing Officer regarding quantification of income which has escaped assessment or likely to escape assessment and the notice has to be issued adhering to the timelines so specified. The reasons are required to be read as they were recorded by the Assessing officer. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn on the basis of reasons not recorded. It is for the Assessing officer to disclose and open his mind through the reasons recorded by him and he has to speak through the reasons. It is for the Assessing officer to form his opinion and record his reasons in clear and unambiguous terms and the reasons should not suffer from vagueness and should be self-explanatory. As held by the Hon’ble Delhi High Court in case of Meenakshi Overseas Pvt Ltd (Supra), the reopening of assessment under Section 147 is a potent power not to be lightly exercised, that it certainly cannot be invoked casually or mechanically, that the reasons so recorded have to be based on some tangible material and that should be evident from reading the reasons and this is the bare minimum mandatory requirement of Section 147(1) of the Act and the reasons to believe must demonstrate link between the tangible material and the formation of the belief or the reason to believe that income has escaped assessment.

Applying the aforesaid legal proposition in the present case, let’s look at the reasons recorded by the Assessing officer before issuance of notice on 19/12/2018 u/s 148 of the Act wherein the Assessing officer has stated that as per information available with his office, the assessee has received an amount of Rs 21 lacs from M/s Ess Kay Niwas Pvt Ltd and Rs 29 lacs from M/s Samsung Marketing Pvt Ltd through an account maintained with HDFC Bank and the said bank account has been used by these two companies for layering of funds and not for any real business activity. It has been further stated that these two companies have not filed any return or has filed nil income return which shows that the amount of Rs 50 lacs is routed to real beneficiary i.e, the assessee without any business transactions. Basis receipt of the aforesaid information, a verification letter was issued to the assessee, however, since there was no compliance made by the assessee, the AO held that the assessee has nothing to say in the matter. The AO therefore recorded his reasons stating that since the assessee has not filed the return of income for the impugned assessment year and no explanation has been furnished regarding the aforesaid transactions, he has reason to believe that income to the extent of Rs 50 lacs on account of sham transactions/ without any business transactions has escaped assessment.

As can be seen from the reasons so recorded by the Assessing officer, basis certain information received in his office and in absence of return of income and compliance to verification letter by the assessee, he has formed the belief that the income has escaped assessment. The question is whether the information so received and as stated in the reasons so recorded is a tangible piece of information which establishes the necessary nexus for formation of belief that the income has escaped assessment in the hands of the assessee. If we look at the information so stated in the reasons, it talks about the fact that the assessee has received an amount of Rs 21 lacs from M/s Ess Kay Niwas Pvt Ltd and Rs 29 lacs from M/s Samsung Marketing Pvt Ltd through an account maintained with HDFC Bank and the said bank account has been used by these two companies for layering of funds and not for any real business activity and merely for transferring the funds to the real beneficiary, that is, the assessee. Here, it is relevant to note that the bank account so maintained with HDFC bank, where these funds have been received, is in name of the assessee and not in the name of these two entities. It is not discernable from the information on record as to how the said account has been used by these two entities for layering of funds belonging to the assessee. The layering requires the origination of funds from the assessee and through multiple entities/multiple bank accounts reaching back to the assessee. There is nothing in this regard as so stated in the reasons so recorded. The fact that these two entities have filed no return or nil return and have transferred the funds to the assessee could be a good basis for initiating the enquiry/investigation in respect of these transactions, however, without building the necessary chain and chronology of events/transactions and establishing the necessary money trail and involvement of the assessee, merely the fact that the money has reached the bank account of the assessee couldn’t constitute a tangible material to reach a prima facie belief that the assessee is the real beneficiary of these transactions and these transactions have escaped assessment. Except for issuing a verification letter to the assessee which admittedly, the assessee didn’t comply, and the fact that the assessee has not filed his return of income originally, the AO recorded the reason that these are sham transactions without any business rationale and the assessee being the beneficiary, it has escaped assessment in his hands.

In our understanding, the verification of information has two facets – firstly, relating to the source from whom the information has been received and what all has been received as part of the said communication in terms of material/ documentation/ information and necessary examination/verification of the said information and establishing a sound basis and nexus with the assessee. Secondly, once the same is established, confronting the same to the assessee and seeking his explanation in that regard.

In the instant case, all the AO has stated in para 3 of the reasons so recorded as part of the analysis of information collected/received is that he has issued a verification letter to the assessee and the assessee has failed to respond and basis the same, he has gone ahead and concluded that these are sham transactions and has formed the belief that the income has escaped assessment in hands of the assessee. To our mind, the same cannot be sustained in the eyes of law and it is clearly a case where the AO basis receipt of certain information, which is even not tangible material in our view, and without carrying out any further verification/examination, has recorded the reasons that the income has escaped assessment.

In light of aforesaid discussions and in the entirety of facts and circumstances of the case, we are of the considered view that the Assessing officer doesn’t have requisite authority to invoke his jurisdiction for reassessment u/s 147 and thus, the notice issued under section 148 is hereby set-aside as the same doesn’t satisfy the mandate of 147 of the Act.

Consequently, reassessment proceedings are also liable to be set-aside and the other grounds raised on merits of the additions have therefore become academic and are dismissed as infructious.

In the result, the appeal of the assessee is allowed.