|CORAM:||I. C. Sudhir (JM)|
|CATCH WORDS:||reasons, Reopening|
|DATE:||October 28, 2015 (Date of pronouncement)|
|DATE:||November 20, 2015 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 147: Reopening solely on the basis of information received from another AO that the assessee has booked bogus bills but without independent application of mind to the information renders the reopening void|
(i) The above observation of the Assessing Officer also shows that it was letter dated 20.12.2013 received by him from the ACIT on the basis of which the Assessing Officer could make a view that the purchase bills provided by these persons or their family members is nothing but bogus purchase bills. At the time of recording of the reasons the Assessing Officer apparently was not having any idea about the nature of the transactions entered into by the assessee. In the reasons recorded there is no mention about the nature of the transactions. As per provision of section 147 an assessment can be reopened if the Assessing Officer has reasons to believe that any income chargeable to tax has escaped assessment. The reasons to believe has to be that of the Assessing Officer and further there have to be application of mind by the Assessing Officer. The Assessing Officer was also not aware of the nature of the accommodation entries. In the reasons recorded he has simply mentioned the names of the party and the amount and nowhere has stated the nature of such entry. This also shows that the Assessing Officer has made no effort to look into the return of the assessee which was available with him. This fact gets further supported from the sheet appended to the reasons and quoted on page 4 of the assessment order whereby against Item no. 7, whether the assessment is proposed to be made for the first time, the Assessing Officer has stated ‘Yes’, and in Colunm no. 7(a), whether any voluntary return had already been filed and in Colunm no. 8 (b), date of filing the said return ‘NA’ has been stated. Thus this is a clear case of non-application of mind by the Assessing Officer. It may also be relevant that on page 2 of the assessment order, the Assessing Officer himself has stated that in this case the return of income for the year under consideration was filed with this ward on 27.09.2006. These facts clearly demonstrate that the return was with the same ward and at the time of recording of the reasons for reopening the assessment, the Assessing Officer has not looked at the return and in a mechanical way, on receipt of the letter from the CIT, the assessment has been reopened. It is a settled position of law that there must be material for formation of a belief that income has escaped assessment. Further reasons referred to must disclose process of reasoning by which the Assessing Officer holds reason to believe. There must be nexus between such material and belief. Further and most importantly the reasons referred to must show application of mind by the Assessing Officer. It is also a settled law that the validity of the initiation of the reassessment proceeding is to be judged with reference to the material available with the Assessing Officer at the point of time of the issue of notice under section 147.
(ii) In the present case, as is evident from the assessment order, the Assessing Officer was having nothing except the list provided by the CIT, Central-2, New Delhi about the list of accommodation entries. Beyond that he was not having the copies of the statement of any of these persons, He was not having copy of the assessment orders and other details or document which would have enabled the Assessing Officer to apply his mind and form a belief that income has escaped assessment. In fact this information was not with the Assessing Officer till fag end of the reassessment proceedings, a fact admitted by the Assessing Officer himself in the assessment order. Consequently, the reopening is not valid (Sarthak Securities Pvt. Ltd vs. ITO 329 ITR 110 (Del), Signature Hotels Pvt. Ltd 338 ITR 51 (Del) & CIT vs. SFIL Stockbroking Co 325 ITR 285 (Del) followed)
The main issue in this case is that as per Sec. 147: Reopening solely on the basis of information received from another AO that the assessee has booked bogus bills but without independent application of mind to the information renders the reopening void. Similarly in the department the range heads direct he AOs to initiate action u/s 147 with a list of reasons stated by themselves and not formed by the AO and the AOs do send the proposals for reopening of assessments. In one such case the CBDT had even ignored all legal implications had initiated disciplinary action against an AO solely based on such directions from the range head.
The asst year is 2006-07.The range head is the assessing officer as he has the final say in the matter of assessments The responsibility of reopening and the subsequent actions rest with the Range Head. The responsibility is now known in no uncertain terms Will the supervisory head initiate action against the Range Head? The higher pay has the added responsibility and the consequent results squarely rest on him.Once action is initiated against this JCIT/Addl.JCIT I would like to see how many of the JCIT/Addl JCIT will adventure to make high pitched assessments or play a hand(like a puppeteer holding the strings) in making an assessment by issuing oral directions I am keenly watching out for the reaction of the supervisory authorities.Delhi Police took instant action by arresting an IRS officer for moral indiscretion.