USHA POLYCHEM INDIA PVT. LTD.,KOLKATA vs. PCIT-2, KOLKATA

The grounds of appeal raised by the assessee are as under:

That on the facts and in the circumstances of the case, the observations of Ld. Pr. (CIT -2, Kolkata that the A.O. has failed to examine the issues of transfer of unaccounted fund of Rs.25,00,000/- after layering through various companies to the assessee companies Bank A/c and fictitious loss of Rs. 43,02,450/- on account of transactions in Scan Steel Ltd. are irrelevant, erroneous and contrary to facts on record since order u/s 143(3)/147 was passed by Ld. AO after proper verification and enquiries.

The facts in brief are that the assessee’s return of income was scrutinized u/s. 143(3) of the Act by framing an assessment on 30.03.2015 (hereinafter referred to as the ‘original assessment’). Thereafter, the AO issued notice u/s. 148 of the Act proposing his desire to reopen the assessment on the reasons as given below:

Pursuant to the aforesaid action of the AO to reopen the original assessment, the assessee objected to the same by contesting the allegation of the AO that the assessee was a beneficiary of Rs. 25 lakhs from entry operator M/s. Kalyan Merchants Pvt. Ltd. (hereinafter M/s. Usha Polychem India Pvt. Ltd., AY 2012-13 referred to as ‘M/s. Kalyan’). According to the assessee, it did not have any transaction with M/s. Kalyan in this assessment year and, therefore, according to assessee, the question of it becoming beneficiary does not arise. The AO accepted the contention of the assessee and did not draw any adverse inference against the assessee on this issue while framing the reassessment on 27.12.2019. It has to be noted that during the reassessment proceedings (after reopening) the AO racked up another issue which was not mentioned in the reasons recorded for reopening i.e. in respect of loss of Rs.43,02,250/- which was claimed by the assessee on account of share transactions of M/s. Scan Steel Ltd. (hereinafter referred to as ‘M/s. SSL’). Pursuant to the said query by AO, the assessee replied and filed all the documents before the AO and the AO in his wisdom being satisfied did not draw any adverse inference against the assessee on this issue also while framing the reassessment order dated 27.12.2019 (hereinafter referred to as ‘re-assessment order’).

Thereafter, the Ld. Pr. CIT issued notice to the assessee conveying his desire to exercise the revisional jurisdiction in respect of the AO’s reassessment order dated 27.12.2019, because according to him, the AO has not properly enquired both the issue of Rs. 25 lakhs transacted with M/s. Kalyan; and the loss claimed by the assessee of Rs.43,02,450/- on account of transaction with M/s. SSL. According to the Ld. Pr. CIT, the unaccounted fund of Rs. 25 lakhs was transferred from M/s. Kalyan to M/s. B S R Finance and Construction Ltd. through layering and finally reached to the ultimate beneficiary the assessee (M/s. Usha Polycab Ltd.). Therefore, according to the Ld. Pr. CIT, the AO has not properly enquired into this issue during reassessment proceedings though the AO reopened about this unaccounted fund of Rs. 25 lakhs. Therefore, the reassessment order of the AO, according to Ld. Pr. CIT, was erroneous as well as prejudicial to the interest of revenue. And likewise the Ld. Pr. CIT was of the opinion that the loss claimed by the assessee of Rs.43,02,450/- was fictitious and was on account of transaction in penny stock (M/s. SSL). Therefore, the reassessment order passed by the AO dated 27.12.2019 is erroneous as well as prejudicial to the interest of the revenue and, therefore, he was pleased to set aside the reassessment order directing the AO to frame the assessment afresh after taking into consideration the facts discussed by him. This action of the Ld. Pr. CIT is being challenged by the assessee on the legal issue that Ld. Pr. CIT did not had the jurisdiction to invoke revisional jurisdiction u/s. M/s. Usha Polychem India Pvt. Ltd., AY 2012-13 263 of the Act and his finding that the AO’s reassessment is erroneous as well as prejudicial to the interest of the revenue is, therefore, bad in the eyes of law.

We have heard rival submissions and gone through the facts and circumstances of the case. We note that the assessee’s return of income was scrutinized u/s. 143(3) of the Act by framing an assessment on 30.03.2015. Thereafter, the AO issued notice u/s. 148 of the Act proposing his desire to reopen the assessment on the reasons as reproduced supra in which he informed the assessee, that since the assessee had transaction of Rs. 25 lakh with M/s. Kalyan which is not doing any actual business, the assessee is beneficiary of unaccounted fund of Rs. 25 lakh which he proposes to tax after reopening. Pursuant to the aforesaid reasons recorded the assessee objected to the reopening by contesting the allegation of the AO that the assessee was a beneficiary of Rs. 25 lakhs from entry operator M/s. Kalyan. According to the assessee, it did not had any transaction with M/s. Kalyan in this assessment year and, therefore, question of assessee becoming beneficiary does not arise. The AO accepted the contention of the assessee and did not draw any adverse inference against the assessee on this issue while framing the reassessment on 27.12.2019. And it is noted that during the reassessment proceedings the AO took up another issue which was not found mentioned in the reasons recorded for reopening i.e. in respect of loss of Rs.43,02,250/- which was claimed by the assessee on account of transactions with ‘M/s. SSL’. Pursuant to the said query of AO, the assessee replied and filed all the documents before the AO pertaining to its claim of loss and being satisfied, the AO did not draw any adverse inference against the assessee on this issue also while framing the reassessment order dated 27.12.2019. Thereafter, the Ld. Pr. CIT conveyed to the assessee his desire to exercise revisional jurisdiction in respect of AO’s reassessment order dated 27.12.2019, on the reason that AO has not properly enquired on both the issues of Rs. 25 lakhs transaction with M/s. Kalyan; and the loss claimed by the assessee of Rs.43,02,450/- on account of transaction with shares of M/s. SSL. In the impugned order, the Ld. Pr. CIT, made improvement in the allegation in respect of Rs. 25 lakh from M/s. Kalyan and observed that the unaccounted fund of Rs. 25 lakhs was transferred from M/s. Kalyan to M/s. B S R Finance and Construction Ltd. through layering and finally reached to the ultimate beneficiary the assessee (M/s. Usha Polycab Ltd.). Therefore, according to the Ld. Pr. CIT, the AO has not properly enquired into this issue though the AO had reopened in respect of this unaccounted M/s. Usha Polychem India Pvt. Ltd., AY 2012-13 fund of Rs. 25 lakhs. Therefore, the reassessment order of the AO was erroneous as well as prejudicial to the interest of revenue. And likewise the Ld. Pr. CIT was of the opinion that the loss claimed by the assessee of Rs.43,02,450/- was fictitious and was on account of transaction in penny stock (M/s. SSL). Therefore, the reassessment order passed by the AO dated 27.12.2019 is erroneous as well as prejudicial to the interest of the revenue and, therefore, he was pleased to set aside the reassessment order directing the AO to frame the assessment afresh after taking into consideration the facts discussed by him. This action of the Ld. Pr. CIT is being challenged by the assessee on the legal issue that Ld. Pr. CIT did not had the jurisdiction to invoke revisional jurisdiction u/s. 263 of the Act and his finding that the AO’s reassessment is erroneous as well as prejudicial to the interest of the revenue is bad in the eyes of law.

Before we advert to the legal issue raised by the assessee let us examine the settled legal precedents on the reopening of assessment as well as refresh our mind as to the concept of assessment of an income of an assessee. First of all, we have to keep in mind that the concept of assessment is governed by the time barring rule and assessee acquires a right as to the finality of proceedings. Quietus of the completed assessment can be disturbed only when there is information or evidence regarding undisclosed income or AO has information in his possession showing escapement of income. Even if the AO has information in his possession that there is escapement of income of an assessee, then also the AO cannot legally/validly reopen the assessment u/s. 147 of the Act unless the jurisdictional fact and law which is required to reopen an assessment exist i.e. the AO should have “reasons to believe escapement of income”. Reasons to believe postulates a foundation based on information and belief based on reasons. Even after a foundation based on information is made, there still must be some reason which should warrant holding of a belief that income chargeable to tax has escaped assessment. This condition precedent is sine-qua-non for validity reopening an assessment. And the AO has to record the reasons thus formed and thereafter only he can successfully reopen and issue notice u/s 148 of the Act. And if an assessee challenges the jurisdiction of an AO to reopen the assessment, then the appellate authorities can examine whether the reasons recorded by the AO to reopen the assessment, satisfies the legal requirement for validly reopen the assessment. While M/s. Usha Polychem India Pvt. Ltd., AY 2012-13 doing so, the appellate forum cannot investigate into the adequacy or sufficiency of the reasons which have weighed with the AO in coming to the belief (escapement of income), but the Appellate Forum can certainly examine whether the reasons are relevant and have a bearing on the matter in regard to which he is required to entertain the belief before he can issue notice u/s. 148 of the Act. If there is no intelligible nexus between the reasons and the belief, so that on such reason, no one properly instructed on facts and law could reasonably entertain the belief, then the conclusion would be fragile and resultantly the inescapable conclusion would that the AO could not have had entertained the requisite reason to believe that any part of assessee’s income had escaped assessment. Consequently the reopening made by AO would be held invalid and the reassessment would be nixed. In this context let us look at some well settled judicial precedents on the issue in hand. It is well settled in law that reasons, as recorded by the AO for reopening the reassessment, are to be examined on a standalone basis. Nothing can be added to the reasons so recorded, nor can any thing be deleted from the reasons so recorded. The Hon’ble Bombay High Court in the case of Hindustan Lever [2004] 267 ITR 332 has inter-alia, observed that “………….. it is needless to mention that the reasons are required to be read as they were recorded by the AO. 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 reason not recorded by him. He has to speak through the reasons.” Their Lordship added that “The reasons recorded should be self-explanatory and should not keep the assessee guessing for reasons. Reasons provide link between conclusion & the evidence………”. Therefore it has to be kept in mind that reasons are to be examined only on the basis of the reasons as recorded by the AO. Another important point is that even though reasons, as recorded, may not necessarily prove escapement of income at the stage of recording the reasons, such reasons must point out to an income escaping assessment and not merely need of an inquiry which may result in detection of an income escaping assessment. Undoubtedly at the stage of recording the reasons for reopening the assessment; all that is necessary is the formation of prima facie belief that an income has escaped the assessment; and it is not necessary that the fact of income having escaped is proved to the hilt. What is however, necessary is that there must be something which indicates M/s. Usha Polychem India Pvt. Ltd., AY 2012-13 even if not establishes the escapement of income from assessment. It is only on this basis that the AO can form the belief that an income has escaped assessment. And merely because some further investigation have not been carried out, which if made, could have led to detection to an income escaping assessment, cannot be reason enough to hold the view that income has escaped. It is also important to bear in mind the subtle but important distinction between factor which indicate an income escaping the assessment and the factors which indicates a legitimate suspicion ‘about income escaping the assessment’. The former category consists of the facts which, if established to be correct, will have a cause & effect relationship with the income escaping assessment. The later category consists of facts, which, if established to be correct, could legitimately lead to further inquiries which may lead to detection of an income which has escaped assessment. There has to be some kind of cause & effect between reasons recorded and the income escaping assessment. While dealing with this subject it is useful to bear in mind the following observation of Hon’ble Supreme Court in ITO vs. Lakhmani Mewal Das [1976] 103 ITR 437 wherein was held as follows:

And while reopening an assessment the AO should keep in mind another important point that information adverse may trigger “reason to suspect”; then AO has to make reasonable enquiry and collect material which would make him believe that there is in fact escapement of income. With the aforesaid judicial precedents and the settled position of law in respect of reopening of the assessment, when we examine the legal issue raised by the assessee, we note that in this case the original assessment u/s. 143(3) of the Act was framed on 30.03.2015 (refer page 14 to 17 of paper book); and M/s. Usha Polychem India Pvt. Ltd., AY 2012-13 thereafter, the AO has reopened the assessment by issuing notice u/s. 148 of the Act on 29.03.2019 conveying his desire to reopen the original assessment and thereafter conveyed to the assessee the reasons to believe escapement of income by mentioning about Rs. 25 lakhs transaction of the assessee with M/s. Kalyan. Pursuant to the same, the assessee objected to the reopening and had brought to the notice of the AO that in the relevant year under consideration (AY 2012-13) the assessee did not had any transaction with M/s. Kalyan. The AO after considering the reply of the assessee did not draw any adverse inference against the assessee in the reassessment order framed on 27.12.2019. However, it is pertinent here to state that in the reassessment proceedings another new query regarding an issue which was not mentioned in the reasons recorded (supra) the AO asked by raising new question (refer pages 48 to 54 of PB) regarding the claim made by the assessee regarding loss from share transaction of M/s. SSL. In its reply the assessee filed the documents and explained to the AO regarding this query (loss of Rs.43,02,450/-) which is found placed at pages 55 to 60 of paper book. After perusal of the documents and submissions made by the assessee, the AO did not draw any adverse inference against the assessee on these two issues i.e. Rs. 25 lakhs from M/s. Kalyan as well as in respect of loss from transaction of shares in M/s. SSL. This reassessment order framed by the AO dated 27.12.2019 of the AO has been interdicted by the Ld. Pr. CIT invoking his jurisdiction u/s. 263 of the Act. And this action of the Ld. Pr. CIT is being challenged by the assessee by contending that it is as an action taken without jurisdiction. According to the assessee, since the reassessment order passed by the AO dated 27.12.2019 cannot be termed as erroneous as well as prejudicial to the interest of the revenue the Ld. Pr. CIT could not have invoked revisional jurisdiction u/s 263 of the Act. According to the Ld. AR, it is not the case of the Ld. Pr. CIT that the AO had not confronted the assessee regarding these two issues during the reassessment proceedings. According to him, it is evident from the perusal of statutory notices issued by the AO pursuant to the reopening (page 48 to 54 of the paper book) that both the queries were asked and the assessee had duly replied along with supporting documents which is placed at pages 55 to 60 of paper book, and thereafter, the AO in his wisdom has not found any thing adverse against the assessee and, therefore did not make any addition on it. Therefore, according to the Ld. AR, since the AO has enquired M/s. Usha Polychem India Pvt. Ltd., AY 2012-13 into both the issues in detail and the assessee had replied to it and the AO has taken a plausible view on both the issues it could not have been disturbed by the Ld. Pr. CIT by invoking his jurisdiction u/s. 263 of the Act, without he himself conducting enquiry and finding that the view taken by the AO is unsustainable in law. And according to Ld. A.R, even if the Ld. Pr. CIT has different view after the outcome of his own enquiry then also he cannot upset the AO’s view if the AO’s view is a possible view; and the Ld. Pr. CIT can only interfere if he can hold that the view taken by the AO only if it is unsustainable in law. (refer Hon’ble Supreme Court decision in the case of Malabar Industrial Co.(supra). Therefore, according to Ld. A.R., since in this case the AO has inquired into both the issues and has taken a plausible view, the Ld. Pr. CIT could not have interfered with the AO’s action, unless he has recorded a finding after enquiry by himself that AO’s view are unsustainable in law.

One more legal angle the Ld. AR pointed out is that in the reasons recorded by the AO it can be noted that there is only one issue i.e. with regard to Rs. 25 lakhs transaction with M/s. Kalyan and from a perusal of the reassessment order dated 27.12.2019 it can be noted that AO has not made any addition on this issue. Therefore, according to him the AO could not have taken any adverse view in respect of the loss of Rs.43,02,450/- as held by the Hon’ble Bombay High Court in the case of CIT vs. Jet Airways India Ltd. in [2017] 88 taxmann.com 493 (Bombay) because the jurisdictional facts on which the AO formed his belief about escapement of income to reopen the assessment does not exist. So once the AO find that issue for which he reopened in the first place i.e. regarding Rs. 25 lakhs transaction of assessee with M/s. Kalyan does not exist, then he could not have proceeded further and he (the AO) should have dropped the re-assessment; and in case if he has some adverse tangible material regarding the loss claimed by the assessee of Rs. 43,02,450/-, then the AO should have initiated fresh steps to re-open the original assessment and ought not to have proceeded as done in this case. Therefore, when the AO finds nothing wrong on the issue for which he based his belief to reopen, then AO could not have racked up the new issue of loss of Rs. 43,02,450/- which was not an issue while he was recording the reason to reopen the assessment. Therefore, in any case, the AO without having made any addition in respect of Rs. 25 Lakhs (alleged transaction of assessee with M/s Kalyan), he could not have taken any adverse view in respect of loss of Rs. 43,02,450/- . Therefore, according to the Ld. AR, the M/s. Usha Polychem India Pvt. Ltd., AY 2012-13 Ld. Pr. CIT could not have found fault with the AO in not drawing any adverse inference even in respect of the claim of loss of Rs.43,02,450/- in respect of share transaction with M/s. SSL. We find force in the submission of the Ld. AR that it is settled position of law that the Ld. Pr. CIT cannot do indirectly what AO cannot do directly. We note that the AO in reasons recorded has only mentioned about Rs. 25 lakhs having escaped assessment since the assessee had transacted with M/s. Kalyan an accommodation entry provider. When confronted the assessee brought to the notice of the AO that assessee did not had any transaction with M/s. Kalyan as alleged in the reason to believe to re-open. Finding that the assessee did not had any transaction with M/s Kalyan, the AO did not draw any adverse inference against the assessee on this issue and now through this via media of this impugned order, the Ld. Pr. CIT has desired to interfere by improving the allegation about Rs. 25 lakhs wherein he has made improvement in the allegation that this amount has given through layering from M/s. Kalyan through M/s. BSR Finance and ultimately the beneficiary was the assessee. Therefore, from this factual aspect itself the Ld. CIT, DR pointed out that the AO did not do proper enquiry to find out the layering which AO could have brought out if proper enquiry was done regarding this transaction of assessee wherein M/s Kalyan was also there albeit through another entity M/s BSSR ; and it was pointed out by the Ld DR that even though the assessee might not have received the money directly from M/s. Kalyan, however the assessee was the ultimate beneficiary through M/s BSR Finance. However, we do not countenance this contention of the Ld. CIT, DR for the simple reason that in the reasons recorded the AO has alleged about Rs. 25 lakhs assessee receiving from M/s. Kalyan. And the assessee was confronted with these reasons recorded and the assessee rebutted this alleged fact and brought to the notice of the AO that the assessee had not received Rs. 25 lakhs from M/s. Kalyan by filing bank statement etc. Therefore, the AO did not draw any adverse inference. However, the Ld. Pr. CIT has brought out that there were layering in this transaction and the money was transacted through the hands of M/s. Kalyan then M/s. BSR Finance and then ultimately it reached to the assessee. Here it is pertinent to note that the AO has in the reasons recorded for reopening has mentioned about receiving information from the DDIT (Inv.) from which he was informed that huge suspicious transaction of money in the bank statement of M/s. Kalyan took place and that M/s. Kalyan is not doing any actual business and the un-accounted money of beneficiary like assessee are M/s. Usha Polychem India Pvt. Ltd., AY 2012-13 being brought through the guise of share premium/share etc. back to the actual beneficiary. And that the assessee is a beneficiary of Rs. 25 lakhs from M/s. Kalyan. Here it is pertinent to note the well settled principle of law that information adverse may trigger “reason to suspect” and not ‘reason to believe’. When an information adverse like this comes to the notice of the AO then it only triggers ‘reason to suspect’. Then what the AO should have done was that he should have made reasonable enquiry and should have collected material which could make him believe that there is in fact escapement of income. So in the present case the AO when he got this information from the DDIT (Inv.) should have found out the intermediaries through whose hands the assessee had received Rs.25 lakhs and then should have properly recorded in the reasons recorded the fact from whom the assessee has received Rs. 25 lakhs which has been layered from M/s. Kalyan. Here in this case this important fact/ jurisdictional fact is found missing and, therefore, the factual basis on which the AO reopened itself is fragile and, therefore, the reasons recorded to reopen itself is bad in law and, therefore, the reassessment order dated 27.12.2019 passed by the AO itself stands vitiated on the factual findings recorded by the Ld. Pr. CIT that the assessee has received money not from M/s. Kalyan directly but through several layers from M/s. Kalyan, M/s. BSR Finance & Construction Co. and finally reached to the assessee. This particular assertion of facts itself takes away the base/foundation on which the AO had recorded the reason to believe to reopen the assessment. Therefore, the reassessment order dated 29.12.2019 itself is bad in law and therefore, null in the eyes of law and therefore, the very initiation of revisional proceedings taken by the Ld. Pr. CIT against the assessee itself is void in the eyes of law and therefore quashed.

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