ACIT, CIRCLE- 20(2), NEW DELHI vs. RPS INFRASTRUCTURE LTD., NEW DELHI
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Income Tax Appellate Tribunal, [ DELHI BENCH : “F” NEW DELHI ]
Before: DR. B. R. R. KUMAR & SHRI YOGESH KUMAR U.S.
PER YOGESH KUMAR U.S., JM
This appeal and the cross objection are filed by the Revenue and
assessee respectively against the order of the ld. Commissioner of Income Tax
(Appeals)-XXV [hereinafter referred to CIT (Appeals) New Delhi, dated
27.07.2018 for assessment year 2009-10.
I.T.A. No. 6300/DEL/2018 :-
The Revenue has raised the following substantive ground of appeal:-
“ Whether on the facts and under the circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) erred in deleting the addition of Rs.23,16,00,000/- made by the AO on account of unexplained cash credit under section 68 of the Income Tax Act, 1961, despite the fact that the assessee was not able to establish the genuineness of transactions and creditworthiness of creditors in respect of credits from M/s Legend Infrastructure Ltd., M/s. Placid Buildwell Pvt. Ltd. and M/s. S.S. Fincap Pvt. Ltd. on account of share capital /share premium during the year under consideration.” C. O. No. 70/DEL/2021 :-
The assessee has raised the following substantive grounds of appeal:-
“1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad, both in the eye of law and on the facts.
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On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law, in upholding the reopening of assessment done by the AO, despite the fact that the initiation of the proceedings under Section 147, read with Section 148 of the Act is bad and liable to be quashed, as the conditions and procedures prescribed under the statute have not been satisfied and complied with.
On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in confirming the reopening despite the fact that the same has been made by the AO without independent application of mind.
On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law, in rejecting the contention of the assessee that the notice issued under section 148 of the Act is bad and liable to be quashed as the same is barred by limitation having being issued beyond the four years from the end of relevant assessment year.
On the facts and circumstances of the case, the CIT(A) has erred both on facts and in law, in rejecting the contention of the assessee that reopening of assessment is bad without there being any whisper in the reasons recorded by the AO that the income has escaped assessment on account of failure on part of the assessee to disclose fully and truly all material facts necessary for assessment.
On the facts and circumstances of the case, the CIT(A) has erred both on facts and in law, in rejecting the contention of the assessee that the assessment has been reopened by the
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AO on the basis of the reasons which are mere change of opinion as the issue was already examined during the course of assessment under Section 143(3) of the Act.”
Brief facts of the case are that, the assessee is a Limited Company
received share capital of Rs. 23,16,00,000/- in the year under consideration.
The assessee filed return of income for the Assessment Year 2009-10 declaring
a total income of Rs. 5,55,70,290/- which was processed u/s 143(1) of the Act
and was selected for scrutiny assessment. During the assessment proceedings,
the assessee was asked to explain regarding share application money raised by
the assessee and the assessee provided the details in respect of the share
application money received during the year. The assessment order came to be
passed u/s 143(3) of the Act on 30/12/2011 by computing the total income of
the assessee at Rs. 5,60,94,110/- by making an addition of Rs. 5,23,822/- u/s
14A of the act. On the basis of information received from the Investing Wing,
the reassessment proceedings were initiated against the assessee u/s 148 of
the Act a notice u/s 143(2) dated 01/06/2016 along with reasons recorded for
initiating the proceedings u/s 147 of the Act were issued to the assessee. The
Assessing Officer assessed the income of the assessee at Rs.28,85,94,110/- as
against the returned income of Rs. 5,69,94,110/- by making addition of Rs.
23,16,00,000/-on account of share application money u/s 68 of the Act.
As against the assessment order dated 30/12/2016, the assessee
preferred an appeal before the CIT(A) and the CIT(A) vide order dated
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27/07/2018 held that ‘the findings given by the A.O. in the assessment order
that the share application money received by the appellant were
accommodation entries and appellant had invested its own money was not
based on any material fact available on record. Hence, the findings given by
the A.O. is not justified’. Accordingly, the Ld. CIT(A) directed the A.O. to delete
the addition made on account of capital infused.
Aggrieved by the order of the CIT(A) in deleting the addition, the
Department filed an appeal in ITA No. 6300/Del/2018 on the grounds
mentioned above and the Assessee filed C.O No. 70/Del/2021 challenging the
reopening of assessment done by the A.O. u/s 147 read with Section 148 of the
Act.
Since the assessee raised legal issue in the C.O. regarding the reopening
of assessment u/s 147 read with Section 147 of the Act, we deem it fit to
decide the Cross Objection of the assessee before the disposing the appeal filed
by the revenue.
Ld. Counsel for the Assessee addressing argument on the C.O.,
submitted that the reopening of the assessment done by the A.O despite the
fact that the initiation of the proceedings u/s 147 read with Section 148 of the
Act is bad in law deserves to be quashed as the conditions and procedures
prescribed under the statute have not been satisfied and complied with. The
Ld. AR taken us to the paper book and submitted that reopening of assessment
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is bad without there being any whisper in the reasons recorded by the A.O.
that the income has escaped assessment on account of failure on part of the
assessee to disclose fully and truly all material facts necessary for assessment.
Therefore submitted that the assessment order passed u/s 147/143(3) of the
Act is liable to be quashed.
On the other hand, the Ld. DR submitted that the reopening is in
accordance with the provisions of the Act which cannot be found fault with.
There was sufficient reason to believe that income had escapement assessment
and proceedings were initiated after recording reasons and submitted that the
reassessment is valid if there is a prima facie reason to believe that income had
escaped assessment. Therefore submitted that, the initiation of proceedings
u/s 147/143(3) of the Act is in accordance with law.
We have heard the parties perused a material on record. It is emerges
from the record that on the basis of the report of Investigating Wing, the case pf
the Assessee was reopened. It is the specific case of the assessee that in the
survey operation conducted on 21/10/2013 in the business premises of the
assessee no incriminating material was found and no any discrepancy in the
books of the assessee was noted by the Assessing Officer.
During the original assessment proceedings u/s 143(3) of the Act the AO
had raised a specific query regarding share application money raised by the
assessee. The extract of the notice issued by the AO are reproduced hereunder:
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“ANNEXURE TO NOTICE U/S 142(1) OF THE I.T. ACT, 1961
In order to complete the assessment u/s 143(3), You are requested to kindly furnish the details as under :-
Detailed note on the history/nature of the business and/or the sources of income declared. Please state whether there is any change in object since incorporation. Please file copy of memorandum and article of association.
Name Address/PAN/Asstt. Particulars of Directors of the company.
Details of shares holders and quantum of their holding in the assessee company as on 01.04.2008 and 31.03.2009.
Complete details of registered office, head office, branch office and any other place mentioned by the company.
Copy of assessment order of last three years.
Details of party-wise purchases and sales with their addresses, PAN and Ward/Circle.
Name and complete communication address of the parties from/to whom loan and advances above Rs.50,000/- was received/given during the previous year with the terms/conditions. Discharge onus in case of loans/advances received as per sec. 68 of the I.T. Act- notes on its usage. Explain sources/purpose of giving loan as advance.
Details of expenses debited to P&L A/c with supporting evidence.
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Details of expenses covered u/s 43B with date of payment and supporting evidence.
Details of additions to fixed assets along with supporting documents and when the same are put to use.
Details along with complete address and confirmation of parties/persons from whom unsecured loan was received.
In case of increase in share capital, share application money, share premium etc. please furnish:-
(a) Confirmations with PAN & Address
(b) Copy of ITR & Balance Sheet
(c) Bank Statement
Detail of all bank accounts maintained by the assessee company giving the A/c No., Type of Account, name of the bank and address of the branch. Please also furnish bank reconciliation statements, wherever necessary.
Give details of sundry creditors with complete address.
Item-wise / value-wise details of opening and closing stock. Details of Sundry Debtors with complete addresses.
In compliance with the above notice, the assessee provided the details in
respect of share application money received during the year. The reply of the
assessee dated 05.09.2011 is as under:
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“Dear Sir,
With reference to your notice u/s 142(1) on the captioned subject, kindly find enclosed the following documents for your record and information:-
Required details has already been submitted on 03.06.2011 and we hereby declare that there was no change in business since inception of the company.
List of directors as on 31.03.2009. As annexure-1
List of share Holders as on 31.03.2008 and 31.03.2009.As annexure-2
Form No. 18 Filed with ROC as an evidence of Corporate Office. There is no branch office of the company. Copy of form No 8 is attached and Marked as annexure-3.
Copy of assessment order may be available with the department.
Our business is not of Manufacturing or trading in nature, so this clause is not applicable.
Name and complete communication address of the parties from / to whom loan and advances above Rs. 50000/- was received / given during the year. Annexure as per Section 269SS 269TT is enclosed and marked as Annexure-4.
The expenses charges are as per profit and loss account which has already been submitted with all relevant schedules. The books of account may be submitted as when required for your perusal at any time.
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Details of Expenses covered u/s 43B with required information's with the copy of proof of payment is enclosed and marked as Annexure-5.
Details of additions to fixed assets along with supporting documents with date of put to use of assets during the year is enclosed and Marked as Annexure-6.
Details along with complete address with confirmations of all the transactions during the year as far as unsecured loans are concerned is enclosed and marked as Annexure-7.
Detail as regard to share capital has already been submitted on 03.06.2011.
Details related to bank with the copy of bank statements has already been submitted on 15.03.2011. However complete list of bank accounts maintained by the company is enclosed and marked as Annexure-8.
Details of sundry creditors as on 31.03.2009 along with the complete address and amount outstanding is enclosed and marked as Annexure-9
Not applicable being not either trading company or manufacturing company.
Details of sundry debtors as on 31.03.2009 along with the complete address and amount outstanding is enclosed and marked as Annexure-10 hope you will find our reply in order.
Thanking You,
Yours faithfully,
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Based on the enquiry conducted by the Assessing Officer, assessment
order u/s 143(3) of the Act was passed in the case of the assessee on
30.12.2011 assessing total income of Rs. 5,60,94,110/- against the returned
income of Rs. 5,55,70,290/- by making addition of Rs. 5,23,822/- u/s 14A of
the Act.
It is found from the record that during the survey operation carried on
21.10.2013 at the business premises of the assessee company, no
incriminating material was found, neither there was any discrepancy in the
books of the assessee was noted by the survey team. The case of the assessee
admittedly was reopened u/s 147 of the Act on the basis of the Investigation
report of the Investigating Wing. During the assessment proceedings the AO
made independent enquiry u/s 133(6) of the Act. All the notices have been
served on all the parties and have been duly responded by them. The addition
has been made by the A.O. of Rs. 23,16,00,000/-, by invoking the provision of
section 68 of the Act on share application money received during year under
consideration. The said addition has been deleted by the CIT(A) on the ground
that the finding given by the A.O. in the assessment order that the share
application money received by the Assessee were accommodation entries and
Assessee had invested its own money was not based on any material facts
available on record and held that the findings given by the A.O. is not justified.
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Considering the fact that the assessment proceedings were initiated
beyond 4 years and during the scrutiny proceedings u/s 143(3) of the Act, the
Assessee had already disclosed all the details and facts regarding the share
application money on the specific query and considering the fact that the
assessment proceedings were initiated on satisfaction borrowed from report of
Investigation Wing, in the absence of any whisper or allegation on the Assessee
regarding non disclosure of fully and truly all material facts in the reasons, in
our considered opinion the proceedings initiated u/s 148 of the Act cannot be
sustained.
It is well settled law that the Assessing Officer cannot invoke the
provisions of Section 147 & 148 of the Act merely on the change of opinion
wherein the original assessment u/s 143(3) of the Act was completed after due
consideration of the facts. The Co-ordinate Bench of the Tribunal in ITA No.
473/Del/2017 in the case of Anant Raj Ltd. Vs. DCIT reported in (2021) 226
DTR 33 held as under:-
“Reassessment -Full and true disclosure-Absence of new tangible material- Assessee had declared long-term capital gain on sale of the property - It placed on record all evidences to show that the information submitted by it were correct, property was held for a period of more than three years, rent was received from the said property and no depreciation at all was claimed on the property - All documents were part of the returns of income at tax audit report filed before the Revenue - These evidences clearly show that the
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assessee made a true and full disclosure of facts regarding the sale of the assets and depreciation thereon which were very much part of the assessment records and the same had been examined by the AO in the original assessment proceedings-
Neither the AO nor the Departmental Representative pointed out any discrepancy in the above mentioned information submitted by the assessee to the Revenue authorities nor they brought any evidence on record to show that the said information in the assessment order Assessment cannot be reopened on the basis of mere change of opinion on the same set of facts on record - In this case, there was true and full disclosure of facts and no new information came to the knowledge of the A.O. Therefore, the reopening of - assessment was invalid."
Further, the Hon'ble Supreme Court in the case of CIT Vs. Kelvinator of
India Ltd. (2010) 320 ITR 561 S.C, while deciding the question 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 held as under:-
“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
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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 reassess. The Assessing Officer has
no power to review; he has the power to re-assess. But
reassessment 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.
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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 here in below 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
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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.”
The Hon’ble High Court of Delhi at New Delhi in the case of D.T & T.D. C.
Ltd. Vs. ACIT 232 CTR 260 (Del) held as under:-
“9. We may also point out that insofar as the assessment year 1997- 98 and 1998-99 are concerned, the same would require application of the proviso to Section 147 of the said Act, inasmuch as the notices under Section 148 of the said Act in respect of these two years have been issued beyond the period of four years prescribed in the said provision. That being the case, before the Assessing Officer could acquire jurisdiction for reopening the assessments in respect of these two years, it would have to be shown that the assessee did not file a return or that he did not make a full and true disclosure. It is an admitted position that the assessee had filed a return, therefore, the only question which remains to be open is whether the assessee made a full and true disclosure or not. In the present case there is no allegation in the reasons recorded by the Assessing Officer that the assessee had failed to make a full and true disclosure of the relevant facts. In fact, there could be no such allegation because the assessee had clearly indicated the nature and contents of the TIUF and the treatment given by the assessee in its books of accounts. The same had also been examined by the Assessing Officer as aforesaid. Thus, in respect of the assessment
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years 1997-98 and 1998-99 this additional ground is also available in favour of the assessee/petitioner.
The position that a mere change of opinion would not entitle an Assessing Officer to reopen a completed assessment is well settled. The latest decision being of the Supreme Court in Civil Appeal No.2009-2011 of 2003 and Civil Appeal No. 2520 of 2008 decided on 18th January, 2010 which approves this Court‟s Full Bench decision in the case of Commissioner of Income Tax vs. Kelvinator of India Limited:256 ITR 1 (Del.) (HC). The power of re-assessment is different from the power of review. The Assessing Officer has been given the power to re-asses under Section 147 upon certain conditions being satisfied. The Assessing Officer does not have the power of review. If a change of opinion were to be permitted as a ground for re-assessment then it would amount to granting a licence to the Assessing Officer to „review‟ his decisions, which power he does not have.
Consequently, holding that initiation of the proceedings in question was based entirely on change of opinion, we find that the re-assessment proceedings are without jurisdiction. The notices under Section 147/148 of the said Act and the proceedings pursuant thereto stand quashed. We make it clear that in this writ petition we have considered the case only from the stand point of jurisdiction and not on the merits of the issues with regard to taxability of the amount transferred to TIUF.”
The Jurisdictional High Court in the case of CIT-VI, New Delhi Vs. Usha
International Ltd. (2012) 348 ITR 485 (Delhi High Court)
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“Now we examine the claim of the assessee regarding this contention that reopening is on mere change of opinion. Reliance has been placed on a judgment of Hon'ble Delhi High Court rendered in the case of Usha International Ltd. (supra). Para 13 to 17 of this judgment are relevant for the dispute in present case and the same are reproduced below for the sake of ready reference:-
"13. It is, therefore, clear from the aforesaid position that : (1) Reassessment proceedings can be validly initiated in case return of income is processed under section 143(1) and no scrutiny assessment is undertaken. In such cases there is no change of opinion.
(2) Reassessment proceedings will be invalid in case the assessment order itself records that the issue was raised and is decided in favour of the assessee. Reassessment proceedings in the said cases will be hit by the principle of "change of opinion".
(3) Reassessment proceedings will be invalid in case an issue or query is raised and answered by the assessee in original assessment proceedings but thereafter the Assessing Officer does not make any addition in the assessment order. In such situations it should be accepted that the issue was examined but the Assessing Officer did not find any ground or reason to make addition or reject the stand of the assessee. He forms an opinion.
6.1 As per above paras from this judgment of Full Bench of Hon'ble Delhi High Court, it is seen that it was held in this case that
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reassessment proceedings will be invalid in case the assessment order itself records that the issue was raised and is decided in favour of the assessee because in that situation the reassessment proceedings will be hit by the principle of change of opinion. Similarly, in that situation where query is raised and answered by the assessee in original assessment proceedings, and thereafter, the Assessing Officer does not make any addition in the assessment order, the reassessment proceedings will be invalid in that scenario also, it has to be accepted that the Assessing Officer had formed an opinion in the original assessment although he had not recorded his reasons for forming opinion but still this is a change of opinion if the Assessing Officer starts the reassessment proceedings for the same issue. In the light of this, now we examine the facts of the present case. As per the original assessment order passed by Assessing Officer u/s 143(3) dated 11/12/2008, it is seen that it is noted by Assessing Officer on page No. 2 of this assessment order that queries were raised vide letter dated 12/11/2008. The queries are reproduced by the Assessing Officer on pages 2 of the assessment order and one of the queries was that the assessee was asked to explain as to why the prior years expenses should not be disallowed. The reply of the assessee before the Assessing Officer are also reproduced by the Assessing Officer on pages 2 & 3 of that assessment year and in the reply para 4, it was submitted by the assessee before the Assessing Officer that prior year expenses should be allowed as deduction because the same are in the nature of business expenses for which liability arose during the present year under question. Even after making this query and receiving reply from the assessee, no addition was made by the Assessing Officer in the assessment order u/s 143(3) dated 11/12/2008 on
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account of prior period expenses. But still it has to be accepted that opinion was formed by the Assessing Officer although the reasons for forming an opinion is not available in the assessment order u/s 143(3) of the Act. Hence, this judgment of full Bench of Hon'ble Delhi High Court rendered in the case of Usha International Ltd. (supra) is squarely applicable in the present case and hence, respectfully following this judgment of Hon'ble Delhi High Court, we hold that in the present case, reopening is on mere change of opinion and therefore, not valid. These grounds of the assessee are allowed.”
In view of the above facts and circumstances, we are of the opinion that
the reassessment proceedings initiated by the A.O. u/s 147/148 of the Act on
mere change of opinion and reviewing the completed assessment is contrary to
the settled position of law (supra) thus, we find merit in Grounds of the C.O
filed by the Assessee, accordingly, we allow Ground No. 1 to 6 of the assessee
and quash the assessment order and the order of the CIT(A).
In the result, C.O No. 70/Del/2021 filed by the assessee is allowed.
ITA No. 6300/Del/2018
The present Appeal filed by the Department aggrieved by order of the
CIT(A) challenging the deletion of addition made by the A.O. on account of
unexplained cash credit u/s 68 of the Act. Since we have allowed the C.O filed
by the Assessee on the ground that the reopening proceedings u/s147 read
with Section 148 of the Act is bad in law and quashed the addition, the present
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Appeal filed by the Department becomes in-fructuous. Accordingly, the Appeal
filed by the Revenue in ITA No. 6300/Del/2018 is dismissed for having become
in-fructuous.
Order pronounced in the Open Court on : 22nd June, 2023.
Sd/- Sd/- (Dr. B. R. R. KUMAR) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 22/06/2023
*MEHTA/R.N, Sr. PS*
