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Income Tax Appellate Tribunal, AHMEDABAD “A” BENCH
Before: Shri Rajpal Yadav & Shri Manish Borad
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH Before: Shri Rajpal Yadav, Judicial Member And Shri Manish Borad, Accountant Member ITA No. 2163/Ahd/2014 Assessment Year 2007-08
Bipinkumar Hiralal The ITO, Shah, Main Bazar, Ward-6(1), Nr. Jain Upasharya Vs Ahmedabad Koth, Tal: Dholka, (Respondent) Ahmedabad-382240 PAN: AFQPS3453L (Appellant)
Revenue by: Shri Rajesh Meena, Sr. D.R. Assessee by: Shri S.N. Divetia, A.R. Date of hearing : 11-10-2017 Date of pronouncement : 25-10-2017 आदेश/ORDER PER : MANISH BORAD, ACCOUNTANT MEMBER:-
This assessee’s appeal for A.Y. 2007-08, arises from order of the CIT(A)-XI, Ahmedabad dated 15-05-2014, in proceedings under section 143(3) r.w.s. 147 of the Income Tax Act, 1961; in short “the Act”.
The assessee has raised following grounds of appeal:-
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“1.1 The order passed u/s. 250 on 15/5/2014 for A.Y.2007-08 by CIT(A)-XI, Abad, partly confirming the addition u/s 69C of Rs.3,45,678 is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the explanations furnish 3d and the evidence produced by the appellant. 2.1 The Ld. CIT(A) has grievously erred in upholding the addition to the extent of RS. 3,45,678 as peak amount. 2.2 The Ld. CIT(A) has grievously erred in law and or on facts in upholding the addition of Rs. 3,45,678 as unexplained purchases though the payments were duly reflected in the regular books of the appellant and the quantity was recorded in quantitative details. 2.3 That in the facts and circumstances of the case as well as in law, the Id. CIT(A) has grievously erred in upholding addition of Rs. 3,45,678. 3.1 The Id. CIT(A) has grievously erred in upholding the validity of the proceedings u/s 147 and notice u/s 148 though both were illegal, unlawful and without jurisdiction as pointed out in SOF. It is therefore prayed that the addition of Rs. 3,45,678 upheld by the CIT(A) should be deleted”
Briefly stated facts as culled out in the records are that the assessee is an individual engaged in trading of wheat and other items. Return of income for assessment year 2007-08 filed on 24-10- 2007 declaring income of Rs. 1,14,030/-. Case selected for scrutiny. Assessment u/s. 143(3) of the act completed on 16-11-2009 accepting the returned income as assessed income. Subsequently, notice u/s. 148 of the act dated 19-01-2012 served to the assessee giving the reason that the assesse has made payments in cash for purchases made during the year. During the course of re- assessment proceedings, details were called for, alleged purchases of Rs. 6,27,007/- from five parties for which payments made in cash. Summons were issued u/s. 131 of the act. Few parties appeared before the assessing officer, but denied to have entered into any transactions with the assessee. Accordingly, assessment u/s. 143(3) r.w.s. 147 of the act completed on 02-01-2013 after making addition
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u/s. 69 of the act of Rs. 6,27,007/-. Income assessed at Rs. 7,41,037/-.
Aggrieved assessee preferred appeal before the ld. CIT(A). He lost in the ground challenging the reassessment proceedings. However, on merits, ld. CIT(A) granted partial relief and sustained the addition of Rs. 3,45,678/- by applying the peak of the amount being invested.
Aggrieved assessee is in appeal before the Tribunal. Raising two fold contentions (i) challenging the validity of proceedings u/s. 147 of the act and (ii) against sustaining of addition of ld. CIT(A) at Rs. 3,45,678/-. We first take up the ground challenging the validity of reassessment proceedings. Ld. counsel for the assessee submitted that during the course of assessment proceedings u/s. 143(3), all relevant details of creditors along with confirmations were filed. The ld. assessing officer has partly examined these details and completed the assessment. On the basis of very same documents, ld. assessing officer has changed his opinion and reopened the assessment. Such reopening by mere “change of opinion” has been held invalid by hon’ble apex court in the case of CIT vs. Kelvinator of India 320 ITR 561. On the other hand ld. departmental representative supported the order of ld. CIT(A).
We have heard rival contentions and perused the records placed before us and gone through the judgment relied by ld. counsel
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for the assessee. Issue raised in this ground is of challenging the validity of re-assessment proceedings u/s. 147 r.w.s. 148 of the act.
We observe that case of the assessee was selected for scrutiny assessment. During the course of assessment proceedings u/s. 143(3), ld. assessing officer called for the details of sundry creditors, purchases, sales etc. Assessee complied to the details called for by the ld. assessing officer and filed details of purchase, confirmations of sundry creditors with their names and addresses. This fact was very much before the assessing officer that assessee has made purchases of agricultural produce from various farmers. After going through all these details, Ld. Assessing officer accepted the returned income as assessed income. Thereafter, from the very same details showing confirmations of sundry creditors, ld. assessing officer observed that in some of the cases payments have been made in cash and there could be a probability of disallowance u/s. 40A(3) of the act for the payments exceeding Rs. 20,000/- in cash for the purchases. Taking these details as basis ld. assessing officer issued notice u/s. 148 of the act within four years of the completion of assessment proceedings u/s. 143(3) of the act.
Now, the question before us is that whether the action of the assessing officer of reopening the assessment u/s. 147 of the act within four years for “change of opinion” is valid or not?
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We find that Hon’ble Apex Court in the case of CIT vs. Kelvinator of India Pvt. Ltd (supra) adjudicating similar issue relating to the validity of reopening of assessment u/s. 147 of the act on the basis of “change of opinion” observed as follows:-
“Heard learned counsel on both sides. A short question which arises for determination in this batch of civil appeals is, whether the concept of "change of opinion" stands obliterated with effect from 1st April, 1989, i.e., after substitution of Section 147 of the Income Tax Act, 1961 by Direct Tax Laws (Amendment) Act, 1987? To answer the above question, we need to note the changes undergone by Section 147 of the Income Tax Act, 1961 [for short, "the Act"]. Prior to Direct Tax Laws (Amendment) Act, 1987, Section 147 reads as under: "Income escaping assessment. 147. If-- [a] the Income-tax Officer has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under section 139 for any assessment year to the Income-tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or [b] notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income- tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in sections 148 to 153 referred to as the relevant assessment year)." After enactment of Direct Tax Laws (Amendment) Act, 1987, i.e., prior to 1st April, 1989, Section 147 of the Act, reads as under: "147. Income escaping assessment.-- If the Assessing Officer, for reasons to be recorded by him in writing, is of the opinion that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in Sections 148 to 153 referred to as the relevant assessment year)." After the Amending Act, 1989, Section 147 reads as under: "Income escaping assessment. 147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped
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assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year)." On going through the changes, quoted above, made to Section 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, re-opening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go-by and only one condition has remained, viz., that where the Assessing Officer has reason to believe that income has escaped assessment, confers jurisdiction to re- open the assessment. Therefore, post-1st April, 1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, Section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of "mere change of opinion", which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to re-assess. The Assessing Officer has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to Section 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words "reason to believe" but also inserted the word "opinion" in Section 147 of the Act. However, on receipt of representations from the Companies against omission of the words "reason to believe", Parliament re-introduced the said expression and deleted the word "opinion" on the ground that it would vest arbitrary powers in the Assessing Officer. We quote hereinbelow the relevant portion of Circular No.549 dated 31st October, 1989, which reads as follows: "7.2 Amendment made by the Amending Act, 1989, to reintroduce the expression `reason to believe' in Section 147.--A number of representations were received against the omission of the words `reason to believe' from Section 147 and their substitution by the `opinion' of the Assessing Officer. It was pointed out that the meaning of the expression, `reason to believe' had been explained in a number of court rulings in the past and was well settled and its omission from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended section 147 to reintroduce the expression `has reason to believe' in place of the words `for reasons to be recorded by him in writing, is of the opinion'. Other provisions of the new section 147, however, remain the same." For the afore-stated reasons, we see no merit in these civil appeals filed by the Department, hence, dismissed with no order as to costs.” After carefully going through the judgment of apex court and examining the facts of the instant case before us, we find that the details of purchases as well as sundry creditors were provided to the assessing officer at the time of assessment proceedings u/s.143(3) of the act. Ld. assessing officer has mentioned in the body of the assessment order itself that the assessee has filed the details of
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purchases and sales and confirmations and the same have been gone through by him. For the purpose of reopening, there was no fresh material available with the assessing officer and from the very same details, opinion was changed about the alleged cash payments to the purchasers. In this case, the issue relates to cash purchases made from the farmers. Provisions of rule 6DD(e)(i) of the IT Rules, 1962 are squarely applicable for the cash purchases of agricultural produce. One cannot deny the possibility that during the assessment proceedings u/s. 143(3) of the act, assessing officer took a view that even though payments for purchases are made in cash, they are covered by rule 6DD(e)(i) of IT Rules, therefore, no disallowance is called for u/s. 40A(3) of IT Act. Subsequent to the completion of assessment proceedings u/s. 143(3), ld. assessing officer again on going through the very same documents formed an opinion that such cash payments are disallowable u/s. 40A(3) of the act. This act of the ld. assessing officer squarely falls under the category of “change of opinion” and as observed by Hon’ble Apex Court, assessment u/s. 143(3) cannot be reopened merely for the “change of opinion”.
Respectfully following the judgment of Hon’ble Apex Court in the case of CIT vs. Kelvinator of India (supra) and in the given facts and circumstances of the case, we quash the re-assessment proceedings u/s. 147 r.w.s. 148 of the act and restore the order dated 16-11-2009 passed u/s. 143(3) of the act. In the result, this ground of the assessee challenging the re-assessment proceedings is allowed.
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Apropos to the grounds raised on merits against the sustained addition of Rs. 3,45,678/- u/s. 69C of the act, we find no reason to adjudicate this issue as we have already quashed re-assessment proceedings and therefore this ground is dismissed as infructuous.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on 25-10-2017
Sd/- Sd/- (RAJPAL YADAV) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 25/10/2017 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद