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Income Tax Appellate Tribunal, DELHI BENCH -‘SMC’ NEW DELHI
Before: SHRI BHAVNESH SAINI
Both the appeals by the same assessee are directed against different orders of Ld. CIT(A) dated 3rd November, 2016 for asstt. year 2011-12 and dated 16th November, 2016 for asstt. year 2012-13. Ld.
Representatives of both the parties mainly argued in asstt. year 2011-12 and have submitted that issues are same in both the appeals. Therefore for purpose of disposal of both the appeals I decide the appeal of assessee for asstt. year 2011-12 as under :- Page 1 of 9 ,971/Del/2017 Tajendra Kumar Ghai vs. ITO Assessment Year : 2011-12
2. I have heard Ld. Representatives of both the parties and perused the material on record.
In this appeal assessee challenged the assumption of jurisdiction u/s 147 to 151 of the I.T. Act and additions of Rs. 13,91,657/-.
Briefly the facts of the case are that assessee filed return of income declaring income at Rs. 2,37,940/- on 29th March, 2013. The AO noticed that there were total cash deposits of Rs. 63,27,996/- in assessee’s saving bank account with Punjab National Bank, Corporation Bank and Axis Bank, Rudrapur. The assessee was asked to explain the cash deposits within the time. However no reply is filed. The AO thereafter recorded the reasons for the opening of the assessment and issued a notice u/s 148 of the I.T. Act on 16th March, 2014. No compliance was made. The assessee did not explain the source of the cash deposit in the bank accounts. The AO as per information obtained u/s 133(6) from the aforesaid banks calculated peak of the said accounts and made the addition of Rs. 13,91,657/- treated the same as income from business for year under consideration.
The assessee challenged the reopening of the assessment as well as addition on merit before Ld. CIT(A). However the Ld. CIT(A) dismissed both the grounds of appeals of the assessee in principle, however, AO was directed to compute the income of assessee after giving credit to the turn over already disclosed u/s 44AD of the I.T. Act.
The appeal of assessee was thus partly allowed. Page 2 of 9 ,971/Del/2017 Tajendra Kumar Ghai vs. ITO
Ld. Counsel for assessee referred to the reasons recorded for reopening of assessment as are reproduced in para 3.3 of the appellate order the same reads as under:-
“In this case on AIR information was received that assessee has been entered into transaction worth Rs. 63,27,996/- in his bank account.
In order to verify the genuineness and correctness of this AIR information a verification was issued on dated 16.1.2014 and 17.2.2014 to the assessee which were duly served upon the assessee itself. Through this verification letter the assessee was required to furnish following information :-
(i) Details of cash deposit of Rs. 63,27,996/- during the F.Y. 2010-11. Also produced other details of investment other than mentioned above effected during the year with full details. (ii) Produce your statement of all Bank Account in your name or in name of your dependent family members. Also give detailed narration of each credit and debit entry reflecting in Bank Statement explaining the source/purposes thereof. (iii) If you are farmer, furnish copy of khasra-khatuni evidencing ownership proof and also the proof of selling of agriculture produce relating to the period under consideration. (iv) If you are assessed to tax, then furnish your PAN, copy of relevant years ITR, whether it was shown or not, copy of capital a/c, balance sheet, P & L a/c as the case may be. (v) You are required to furnish the details within one week of receipt of this letter. Please note that non-compliance of this letter may attract the penal action as per the provision of the Income Tax Act, 1961.
It is to be mentioned in the verification letter itself that non-furnishing of information may constitute the reasons for initiating the proceedings to tax these transaction in the hand of the assessee by presuming that these are not disclosed to Income Tax Department.
The assessee even after receiving the letter himself, did not tendered any reply till date and till now.
This is sufficient fact to establish that these transaction/deposits are not disclosed in the regular return of income of assessee. Page 3 of 9 ,971/Del/2017 Tajendra Kumar Ghai vs. ITO
Therefore, it is clear that amount of Rs. 63,27,996/- has not been brought to tax by the assessee.
Accordingly, I have reason to believe that income to that tune of Rs. 63,27,996/- has been escaped assessment.
Accordingly notice u/s148 is being issued for initiating the proceeding of the I.T. Act, 1961.”
Ld. Counsel for assessee submitted that no proceedings were pending before AO when AO issued the letter of enquiry. The inquiry letter is not valid in eyes of law. The assessee is not under obligation to respond to this invalid and non est so-called letter of enquiry. The AO merely in the absence of reply of the assessee formed the opinion for reopening of the assessment. The deposit in the bank account by itself would not give reasons to the AO to believe income has escaped assessment. Mere deposit in the bank account would not prima facie makes out a case of reopening of the assessment. He has further submitted that the AO in the reasons recorded incorrect fact of deposits of Rs. 63,27,996/- despite the total deposits were only to the tune of Rs. 41.15 lacs. This fact is considered favourably by Ld. CIT(A) and his findings are in para 5.3 of the appellate order. Therefore wrong facts are recorded in reasons for reopening of assessment. Therefore assumption of jurisdiction u/s 147 of I.T .Act is bad in law. He has relied upon following orders :-
order of ITAT Amritsar Bench in the case of Amrik Singh vs. ITO 159
ITD 329 (Amritsar) in which it was held as under :-
,971/Del/2017 Tajendra Kumar Ghai vs. ITO
“When the assessment proceedings u/s 147 are initiated on the fallacious assumption that the bank deposits constituted undisclosed income, over-looking the fact that the source of the deposits need not necessarily be the income of the assessee, the proceedings is neither countenanced, nor sustainable in law.”
Order of ITAT Delhi Bench in the case of Smt. Rajni vs ITO and others in dated 6.11.2017 in which in para 12
it was held as under :-
“12. With the assistance of the Ld. Representatives, I have gone through the record carefully. Section 147 of the Act contemplates that ‘’if the AO has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of section 148 to 153, assessee or re-assess such income…….’ A perusal of this section would show that in order to harbor a belief that income has escaped assessment, the AO ought to have formed an opinion on the basis of the material possessed by him exhibiting the facts that income has escaped assessment. A perusal of the reasons extracted above would indicate that the Ld. AO has basically not made reference to any material possessed by him except the AIR communicated to him. It is pertinent to observe that he has not analysed the information in right perspective and he sought to reopen by conceiving a fact that the assessee failed to respond to the query raised about this investment. As noticed in the submissions of Ld. Counsel for the assessee, I am of the view that there was no proceedings pending before the AO when he sought the clarification of the assessee vide alleged query notice dated 23rd January, 2012. The ITAT Amritsar Bench has dealt with this issue elaborately and recorded a finding that under the income tax Act, there is no such procedure to conduct an enquiry for collecting the information without pendency of assessment proceedings. If this reasoning is being excluded from the copy of the reasons given by the AO, then, nothing will remain with the AO except the information transmitted by AIR Wing. Apart from the above, it is to be seen that in the reasons the AO has nowhere alleged escapement of income. The thrust of the reasoning would show that he want to make an enquiry about the investment. No doubt, for reopening of an assessment, he has to just form a prima facie opinion and not to arrive at a firm conclusion, but, the formation of a prima facie opinion should also depict escapement of Page 5 of 9 ,971/Del/2017 Tajendra Kumar Ghai vs. ITO income. It is also pertinent to observe that when all these pleas were raised before the first appellate authority, then, the Ld. First appellate authority has not dealt with a single proposition and rather dealt with the issue in an altogether different manner whether notice u/s 148 was served or not, copy of reasoning was provided or not, the procedure contemplated through the decision of the Hpn’ble Supreme Court in the case of GKN Driveshaft was followed or not. The Ld. CIT(A) has not addressed the contention of the assessee that reopening of assessment in itself is bad because there is no nexus between reasons vis-à-vis formation of belief exhibiting the escapement of income. Taking into consideration all these aspects, I am of the view that the AO is not justified in reopening of the assessment afresh. I allow this ground of appeal and quash the assessment. As far as other issues are concerned, since reopening of assessment has been held as bad and not in accordance with the law, therefore, I deem it not necessary to deal with the other grounds of appeal as they have become infructuous.”
3) order of ITA Delhi Bench in the case of Raj Kumar Dugar (HUF) vs.
ITO 12 DTR 16 in which it was held as under :-
“Reason recorded by the AO that assessee had not filed IT return for asstt. year 1998-99 being based on incorrect facts because assessee had in fact filed IT return for the said year, issuance of notice under section 148 and consequent assessment could not be sustained; further, assessment could not be reopened in the absence of any fresh material to show that income has escaped assessment and reopening for making fishing inquiry was not valid.”
On the other hand Ld. DR submitted that prima facie case was made out for reopening of the assessment. Therefore AO correctly reopened the assessment and relied upon decision of the Hon’ble Supreme Court in the case of Raymond Woollen Mills Ltd. 236 ITR 34.
I have considered rival submissions. It is not in dispute that assessee filed return of income prior to issue of notice u/s 148 of the I.T. ,971/Del/2017 Tajendra Kumar Ghai vs. ITO Act. The notice u/s 148 was issued on 16th March 2014. It is well settled law that validity of the reassessment proceedings is to be determined on the basis of the reasons recorded by the AO. The reasons are reproduced above in which AO mentioned that as per AIR information it was found that assessee deposited cash of Rs. 63,27,996/- in his bank accounts. However the assessee contended before Ld. CIT(A) that the total aggregate deposits in bank accounts were only 41.15 lacs and not Rs. 63,27,996/-. The contention of the assessee was found correct by the Ld. CIT(A). It is therefore clear that the AO while recording the reasons for reopening of the assessment recorded incorrect facts in the reasons for reopening of assessment. Therefore reopening of the assessment u/s 147 is clearly invalid and bad in law. I rely decision of Hon’ble Punjab & Haryana High Court in the case of CIT vs. Atlas Cycle Industries 180 ITR 319. Further the AO after obtaining the AIR information wanted to verify the same and issued a letter of enquiry to the assessee. The AO thus did not apply in his independent mind to the information received from AIR. Since no proceedings were pending before AO when he issued the letter of enquiry to the assessee, therefore such enquiry letter was not valid in eyes of law. The assessee was not required to respond to this invalid and non est letter of inquiry issued by the AO. The AO in the absence of reply from the assessee presumed that income to the extent of deposits had escaped assessment. The deposit in the bank accounts per se cannot be the income of assessee. It was mere suspicion of the AO based on incorrect ,971/Del/2017 Tajendra Kumar Ghai vs. ITO facts that income chargeable to tax has escaped assessment. According to section 147 of the I.T. Act the AO shall have reason to believe that any income chargeable to tax has escaped assessment. Therefore the belief of the AO should be based upon some specific and tangible material for the purpose of reopening of the assessment. The course adopted by the AO was wholly unjustified in recording the incorrect facts in the reasons for reopening of the assessment. The decision cited by the Ld. Counsel for assessee would clearly support the contention of the assessee that reopening of the assessment is bad in law. In this view of the matter I am of the view that AO has wrongly assumed jurisdiction u/s 147 of the I.T. Act for the purpose of reopening of the assessment. I accordingly set aside the orders of the authorities below and quash the reopening of the assessment in the matter. Resultantly the addition made in the reassessment order would stand deleted and need not to be adjudicated on merit.
In the result appeal of assessee is allowed. -17 Assessment year : 2012-13
In this appeal the assessee similarly challenged assumption of jurisdiction u/s 147/148 of the I.T. Act and addition of Rs. 5,53,112/- on account of deposits in the bank accounts of assessee. Admittedly the issues are same as have been considered in ITA No. 970/Del/17.
Following the reasons for the decision for the same year, I set aside the orders of authorities below and quash reopening of the assessment. In ,971/Del/2017 Tajendra Kumar Ghai vs. ITO view of the matter the addition stands deleted.
In the result appeal of assessee is allowed.
In the result both the appeals of assesee are allowed.
Pronounced in the Open Court.