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Income Tax Appellate Tribunal, ‘C’ (SMC
Before: SHRI ABRAHAM P. GEORGE]
आदेश / O R D E R
Assessee in this appeal assails an order dated 21.12.2016 of ld. Commissioner of Income Tax (Appeals)-5, Chennai. Apart from the original grounds raised by the assessee, it is also seeking admission of following additional grounds:- 1. ‘’Whether the learned Assessing Officer is correct is passing the order of assessment under section 143[3] r.w.s. 147 of the Act,
ITA No.470 /Mds/2017 :- 2 -: without passing the order disposing objections to reopening raised by the Appellant, under the facts and circumstances of the case. 2.The order passed of the learned Authorities below is void ab initio and unsustainable as the order passed under section 143[3] r.w.s. 147 of the Act, is passed without disposing off the objections raised by the Appellant, under the facts and circumstances of the case. 3.The Appellant craves leave to add, alter, amend, substitute, change or delete any of the grounds of appeal
4. For the above and other grounds that may be urged at the time of hearing of the appeal, the Appellant prays that the appeal may be allowed and justice rendered’’.
2. Ld. Counsel for the assessee submitted that grounds assailing the reassessment done on the assessee, without first disposing off the objections placed by the assessee against such reopening, was raised before the ld. Commissioner of Income Tax (Appeals) also. According to him, ld. Commissioner of Income Tax (Appeals) had failed to dispose off of such ground and had held the reassessment to be valid. Ld. Counsel sought my attention to letter dated 09.12.2013 issued by the ld. Assessing Officer giving reasons for reopening. According to him, assessee had vide its reply dated 07.01.2014 objected to the reopening done by the ld. Assessing Officer. However, as per the ld. Authorised Representative, such ITA No.470 /Mds/2017 :- 3 -:
objections were never disposed off by the ld. Assessing Officer.
According to him, ld. Assessing Officer had dealt with objections raised by the assessee only in the assessment order. Relying on the judgment of Hon’ble Apex Court in the case of G.K.N. Drive Shaft India Ltd vs. ITO, 259 ITR 19 and that of Hon’ble Jurisdictional High Court in the case of Jayanthi Natarajan vs. ACIT, W.P.No.1905/2017, dated 14.09.2017, ld. Authorised Representative submitted that without passing a separate speaking order on the objections raised by the assessee, a re-assessment order could not be passed.
Per contra, ld. Departmental Representative strongly 3.
opposing the admission of the additional grounds submitted that assessee’s case could not be compared with the facts available in the case of G.K.N. Drive Shaft India Ltd (supra) or in the case Jayanthi Natarajan (supra). According to him, in the case of the assessee here, the returns were originally processed u/s.143(1) of the Income Tax Act, 1961 (in short ‘’the Act’’) and never subjected to a scrutiny.
Hence, according to him, the reassessment itself was to be construed only as the original assessment. Therefore, as per the ld. Departmental Representative, ld. Assessing Officer was not obliged to give a detailed rebuttal to the objections raised by the assessee against the reopening. In any case, as per the ld. Departmental
ITA No.470 /Mds/2017 :- 4 -:
Representative such objections were properly addressed by the ld Assessing Officer in the assessment order.
I have considered the rival contentions and perused the orders of the authorities below. It is not disputed that assessee had raised objections to the reopening, when it was furnished with the reasons for such reopening. Detailed objections filed by the assessee on 07.01.2014 has been placed on record at paper book at pages 26 to 28. Reasons given by the ld. Assessing Officer and assessee’s response are reproduced hereunder:-
‘’To which a letter stating the reasons for reopening the case was furnished to the assessee , The same is reproduced a, below:-
The assessee has admitted long term capital gains of ₹1,07,194/- for the above assessment year. As per information ensuing from the survey in case of shri Vishnu Bhagwan Garg ( AADPV 6771A) various persons related to Shri Vishnu Bhagwan Garg have shown capital gain on sale of gold, all showing that the gold was brouqh: during 1980-11 or 1981-82 and sold during the period 2007-08 or 2008-09.Some of these cases were scrutinized and it was found that the respective assessees could not produce satisfactory proof to substantiate the claim that a genuine sale of gold had taken place. The amount shown as sale consideration on sale of gold was accordingly treated as unexplained income. As Shri Madanlal Bansai is one of the persons who has shown capita! gain on sale of gold, there is a reason to believe that for the assessment year 2008-09, unexplained income of similar nature has escaped assessment and has t.? be brought to tax. Hence the assessment of the assessee for the A.,Y. 2009-10 has been reopened. From the above stated letter by your kind authority. a direct inference could be drawn that the reasons mentioned in the letter addressed to us for reopening the assessment was not on ITA No.470 /Mds/2017 :- 5 -: the basis for "reason to believe" but was on the "reason to suspect "merely on the ground of suspicion It was the amount received on sale of gold which was advanced to Shri Vishnu Bhagwan Garg for which a confirmation was already given when asked for. There is no information possessed by the Income Tax Officcr about non- genuineness of sale of gold. Further it is also pertinent to note that when the asset(Gold) which was sold during the 'year under consideration was appearing in the wealth tax returns of the assessee during the: prior years of sale .such grounds of suspicion does not holds good and reopening of case u/s.147 would not be justifiable.
Further there were no incremented documents found during the Course of Survey proceedings in case of Shri Vlshnu Bagwan Garg. Thus reopening the assessment merely on the basis of others assessment, by having a thought that even the assessee would haveescaped his income is not lawful. According to the provisions of Section 148 of the Income-tax Act, only when the Assessing officer has a '·Cason to believe that the income chargeable to tax has escaped It assessment the case could be reopened. should be based on evidences and not mere suspicion, gossip or rumour. Care must be taken that the word used in the Section are "reasons to believe" and not "reasons to suspect", but in the present case, It could be observed that the Assessing Officer only on the grounds of Suspicion of non-availability or evidences in case of likewise assessee reopened the case.
It is evident from the decision from the case Calcutta Discount Company Vs Income-tax officer where it was stated that The Expression has reasons to believe " in S.34(1) (a) of the Income Tax Act does not mean a purely subjective satisfaction of the Income tax Officer but predicates the existence of reasons on which such belief has to be founded. That belief, therefore, cannot be founded on mere suspicion and must be based on evidences and any question as to the adequacy of such evidence is whollv immaterial at that stage, The reason cannot be merely a preference. The expression "reason to believe does not mean a purely subjective satisfaction of the Income Tax Officer. It means an objective view of the kind of information that is required to be disclosed in that particular case. The term is to be interpreted as reason
ITA No.470 /Mds/2017 :- 6 -: to believe and not "reason to suspect". This means that mere instinct on the part of the officer that there has been some error in assessment is not enough lo evoke reopening under this section. It has to be based on a firm and concrete belief based on facts that income has escaped assessment. Further it is pertinent to note that in case of Jindal Photo films Ltd Vs. Dy. CIT Manu/De/07Z9/1998;234 ITR 170 (Del) was held that "Another significant aspect to be noted is that the Assessing Officer must ensure that he was sufficient reason to believe that the income escaped assessment for fault on the part of the assessee. This is essential failure of the assessee to disclose information which affects the assessment proceedings." Whereas in the present case there is no default on the part of the assessee since no details were called upon by the assessing officer during the original assessment and thus there lies no default on the part of the assessee to have not fullv disclosed information and particulars. It Is a well-settled position of law that the reassessment is for the benefit of the revenue and not of the assessee. The forum of the decision as to existence of reasons and belief should not be in the mind of the income Tax Officer. He needs to have sufficient evidences to prove the existence of his reason to believe that income has escaped assessment. Attention is also drawn towards the decision taken In case of Dunlop Rubber Co. Ltd vs. ITO Cal 79 ITR 349 where it was held that failure to make such an enquiry does not justify proceeding for reopening.
In the light of the aforesaid reasons, it is evident that it is erroneous to reopen the assessment proceeding u/s 147 since the assessing officer had no information regarding the non- genuineness of sale of gold and just on the grounds of suspicion he is not justified to reopen the case. Without prejudice to this, your fond authority issued a notice uls 142(1) of the Income Tax act, asking for the details for the year under consideration for which I am submitting the details as called by your kind authority. To conclude with It is requested before your kind authority that to accept my above submission and thus drop the reassessment proceedings, Since the same could not be justifiably reopened on the grounds mentioned above’’.
ITA No.470 /Mds/2017 :- 7 -:
Admittedly, ld. Assessing Officer had not dealt with the objections raised by the assessee through a separate order. He had mentioned about this letter filed by the assessee in paras 7 & 8 of the re- assessment order passed on 19.03.2014. The said paras are reproduced hereunder:-
‘’7. On 7/01/2014, the assessee filed a letter stating that the re- opening was erroneous as there was only 'reason to suspect" that income had escaped assessment and not 'reason to believe".
It is seen that the assessee's claim was found to be baseless as the re-opening was based on the fact that similar claim of the assessee for AY 2008-09 was scrutinized u/s 143(3) and it was found that the assessee could not produce satisfactory proof to substantiate its claim that it had made a sale of gold, and the amount shown as sale consideration on sale of gold was treated as unexplained income. Further) it is pertinent to note, that for the AY 2008-09 the assessee had gone on appeal against the order of the Assessing Officer, to the CIT (Appeals) and the (IT (Appeals) dismissed the appeal of the assessee and upheld the Assessment Order of the Assessing Officer. In light of this, the Assessing Officer had reason to believe that Income of the assessee had escaped assessment’’.
Now the question before me is whether the reassessment done without first disposing of objections raised by the assessee to such reopening can be held valid. Argument of the ld. Departmental Representative is that the original return was only subjected to a processing u/s.143(1) of the Act and hence the reassessment was nothing but original assessment itself. I am afraid I cannot accept this contention. Even if the original return was subjected only to a ITA No.470 /Mds/2017 :- 8 -: processing u/s.143(1) of the Act , issue of the notice u/s.148 of the Act, after such processing results in a reassessment. No doubt the tests that are to be applied, where original return was only subjected to a processing u/s.143(1) of the Act, is much less rigorous than in a case where original assessment was done u/s.143(3) of the Act.
However, it is imperative that reasons are there, in every case where there is a reopening. Once such reasons are supplied to the assessee, it has a right to object. That such objections have to be first dealt with, before proceeding with the re-assessment is the law laid down by Hon’ble Apex Court in the case of G.K.N. Drive Shaft India Ltd (supra). Hon’’ble Jurisdictional High Court in the case of Jayanthi Natarajan (supra) after considering the case of G.K.N. Drive Shaft India Ltd (supra) had held as under at paras 13 and 14 of its judgment:-
‘’13. The Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd.,(supra), held that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file a return and if he so desires, to seek reasons for issuing notices. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. This procedure has been carved out by the Hon'ble Supreme Court in GKN Driveshafts (supra), which binds not only the assessee, but the revenue as well. It has been pointed out that on receipt of the reasons, the noticee is entitled to file objections to issuance of notice for reopening and if he
ITA No.470 /Mds/2017 :- 9 -: files such objections, the Assessing Officer is bound to dispose of the same by passing a speaking order. Thus, the procedure, which was required to be followed by the respondent is to dispose of the petitioner's objections by passing a speaking order.
Admittedly, in the instant case, this has not been done by the respondent, but the respondent seeks to sustain the impugned assessment order stating that in the first few paragraphs of the order, he has dealt with objections and disposed of accordingly. Unfortunately, the manner in which the respondent has decided the issue is wholly unsustainable in law. The purpose for passing a separate speaking order on the objections is with a view to afford an opportunity to the assessee to question such an order, if he is aggrieved. The respondent by passing the impugned order has taken away such valuable right from the petitioner inasmuch as the impugned proceedings is an order of assessment under Section 143(3) of the Act. Therefore, if an order of assessment has to be challenged, necessarily an appeal has to be preferred and only in rarest of rare case, Courts would entertain challenge to assessment orders in writ proceedings. Thus, the procedure adopted by the respondent is completely flawed, which goes to the root of the matter, thereby, vitiates the entire proceedings’’.
Hon’ble Apex Court in the case of G.K.N. Drive Shaft India Ltd (supra) clearly held that non-disposal of the objections raised by the assessee to a reopening, goes to the root of the matter and vitiates the entire proceedings. In the circumstances, I have no hesitation in admitting the additional grounds and setting aside the reassessment done on the assessee for the impugned assessment year. Since I am allowing
ITA No.470 /Mds/2017 :- 10 -: the appeal of the assessee on the question of jurisdiction, merits of the addition made by the ld. Assessing Officer are not dealt with.
In the result, appeal of the assessee stands allowed.
Order pronounced on Wednesday, the 10th day of January, 2018, at Chennai.