Income Tax Appellate Tribunal - Mumbai
Summit Securities Ltd., Mumbai vs Dcit.-8(2), Mumbai on 28 August, 2019
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ITA No. 4926/Mum/2011 A.Y. 2005-06
Summit Securities Ltd. Vs. DCIT-8(2)
IN THE INCOME TAX APPELLATE TRIBUNAL
"E" Bench, Mumbai
Before Shri Shamim Yahya, Accountant Member
and Shri Ravish Sood, Judicial Member
ITA No.4926/Mum/2011
(Assessment Year: 2005-06)
Summit Securities Ltd. DCIT-8(2), Aayakar Bhavan
RPG House (Ceat Mahal), Mumbai
463, Dr. Annie Besant Road, Vs.
Worli, Mumbai - 400 030
PAN - AAACI4274J
(Appellant) (Respondent)
Appellant by: Shri Manish V. Shah, A.R
Respondent by: Shri R. Manjunatha Swamy, CIT D.R
Date of Hearing: 20.08.2019
Date of Pronouncement: 28.08.2019
ORDER
PER RAVISH SOOD, JM
The present appeal filed by the assessee is directed against the order passed by the CIT(A)-17, Mumbai, dated 22.02.2011, which in turn arises from the order passed by the A.O under Sec. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (for short „Act‟), dated 31.12.2009. The assessee has assailed the impugned order on the following grounds of appeal before us:
"GROUND I:
1. On the facts and circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals)-17, Mumbai ["the CIT(A)"] erred in confirming the action of the Deputy Commissioner of Income Tax 8(2), Mumbai ("the AO") in reopening the assessment under section 147 of the Income Tax Act, 1961 ("the Act").
2. The Appellant prays that the reopening under section 147 of the Act be held as void ab-initio and/or otherwise bad in law.
P a g e |2 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2) WITHOUT PREJUDICE TO GROUND I GROUND II:
1. On the facts and in the circumstances of the case and in law, the CIT (A) erred in upholding the action of the AO in making addition on account of deferred tax charge under clause (h) of Explanation 1 to Section 11 5JB of the Act, at the time of computing the Book Profit under section 115JB of the Act.
2. The Appellant prays that the AO be directed to exclude the deferred tax charges for computation of Book Profit under section 115JB of the Act.
WITHOUT PREJUDICE TO GROUND I, Ground III:
1. On the facts and in the circumstances of the case and in law, the learned CIT(Appeals) erred in confirming the action of AO, in not accepting the written down value of the block of asset as offered by the Appellant while computing the Short Term Capital Gain under section 50 of the Act.
2. The Appellant prays that the AO be directed to compute the Short Term Capital Gain after considering the written down value of the Block of asset as computed by the Appellant.
Ground IV:
1. The A.O erred in applying the provisions of section 234 C & 234D of the Act in reassessment proceedings.
2. The Appellant prays that the aforesaid interest be deleted.
GROUND V:
The Appellant craves leaves to add to, alter and / or amend the above grounds of appeal."
The assessee has also raised before us the following additional grounds of appeal:
"1. On the facts & circumstances of the case, the reopening of assessment u/s 147/148 is bad in law due to undated and unsigned reasons recorded and provided to the Appellant for reopening the assessment.
2. Thus the Appellant humbly prays that the reopening be treated as void ab-initio and otherwise bad in law."
As the assessee has assailed the validity of the reopening of assessment under Sec.147 of the Act, which involves purely a question of law based on the facts available on record, therefore, the P a g e |3 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2) same is admitted in the backdrop of the judgment of the Hon'ble Supreme Court in the case of CIT Vs. National Thermal Power Company Ltd. (1998) 229 ITR 383 (SC).
2. Briefly stated, the assessee who is engaged in the business of designing, supplying and erection of transmission line towers had e- filed its return of income for A.Y. 2004-05 on 31.10.2005, declaring its total income at Rs.4,92,17,833/- and a "book profit" of Rs.20,28,28,808/-. Subsequently, the assessee had revised its return of income on 30.11.2006, declaring its total income at Rs.64,78,587/- and "book profit" of Rs.10,82,15,808/-. The return of income filed by the assessee was processed as such under Sec. 143(1) of the Act. Thereafter, another revised return of income was filed by the assessee on 31.03.2007, declaring its total income at nil and "book profit" at Rs.10,82,15,808/-. Assessment under Sec. 143(3) was framed by the A.O, vide his order dated 28.12.2007 assessing the total income under the normal provisions at Rs. nil and determining the "book profit"
under Sec.115JB at Rs.10,82,15,808/-.
3. The case of the assessee was thereafter reopened under Sec.147 of the Act. As is discernible from the assessment order, a notice under Sec.148, dated 16.03.2009 was issued and served on the assessee. In compliance, it was submitted by the assessee vide its letter dated 08.12.2009 that its revised return of income filed on 30.03.2006 may be treated as the return filed in response to the notice issued under Sec.148 of the Act. As stated by the A.O in the assessment order, the assessee in the course of the assessment proceedings was provided with a copy of the „reasons to believe‟ on the basis of which its case was reopened under Sec. 147 of the Act.
4. The A.O vide his order passed under Sec.143(3) r.w.s 147, dated 31.12.2009 assessed the income of the assessee company as per the P a g e |4 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2) normal provisions at Rs.2,15,60,150/- and computed its "book profit"
under Sec.115JB at Rs.32,71,99,808/-. As the tax payable under Sec.115JB was more than the tax payable under the normal provisions of Income Tax, therefore, the tax payable under the MAT provisions was considered for the purpose of computing the tax liability of the assessee company.
5. Aggrieved, the assessee carried the matter in appeal before the CIT(A). The assessee assailed the assessment framed by the A.O on three aspects viz. (i) the validity of the reopening of the assessment u/s 147 of the Act; (ii) the addition of Rs.12,89,84,000/- made by the A.O while computing the "book profit" under Sec.115JB of the Act; and (iii) the reworking of „Short term capital gain‟ by the A.O. However, the CIT(A) not finding favour with the contentions of the assessee dismissed the appeal.
6. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. As the assessee has assailed the validity of the reopening by raising an additional ground of appeal before us, therefore, we shall first advert to the same. The ld. Authorized Representative (for short „A.R‟) for the assessee at the very outset of the hearing of the appeal submitted that as the reopening of the concluded assessment of the assessee which was earlier framed under Sec. 143(3), dated 28.12.2007 was reopened by the A.O on the basis of unsigned and undated "reasons to believe", therefore, the assessment thereafter framed by him under Sec.143(3) r.w.s 147, dated 31.12.2009 being devoid of any valid assumption of jurisdiction on his part cannot be sustained and is liable to be vacated on the said count itself. In order to fortify his aforesaid contention the ld. A.R took us through the copy of the impugned „reasons to believe‟ at „Page-6‟ of the assesses „Paper book‟ (for short „APB‟), dated 16.01.2017. The ld.
P a g e |5 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2) A.R took us though the aforesaid impugned „reasons to believe‟, and submitted that the same were found to be unsigned and undated. It was the contention of the ld. A.R that in the absence of any validly recorded „reasons to believe‟ no valid jurisdiction could have been conferred upon the A.O for proceeding with and framing the assessment under Sec.147 r.w.s 143(3) in the case of the assessee. In sum and substance, it was the claim of the ld. A.R that as the reopening of the concluded assessment was in itself invalid, henceforth the assessment thereafter framed by the A.O was liable to be struck down. Apart therefrom, the ld. A.R also assailed the additions made by the A.O on merits.
7. Per contra, the ld. Departmental Representative (for short „D.R‟) vehemently objected to the claim of the ld. A.R that the A.O had framed the assessment under Sec. 147 r.w.s 143(3), dated 31.12.2009 on the basis of invalid „reasons to believe‟. It was submitted by the ld. D.R that a copy of the validly recorded „reasons to believe‟ were made available to the assessee by the A.O in the course of the assessment proceedings. In order to fortify his aforesaid contention the ld. D.R took us through the "order sheet" noting in the case of the assessee, which revealed that as on 26.11.2009 the copy of the „reasons to believe‟ were made available to the assessee. It was submitted by the ld. D.R that the assessee on the basis of an incorrect claim was trying to mislead the court. Apart therefrom, the ld. D.R also placed his contentions in rebuttal of the averments of the counsel for the assessee insofar the merits of the case were concerned.
8. We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them. We find that it is the claim of the ld. A.R that the A.O P a g e |6 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2) had assumed jurisdiction under Sec. 147 and reopened the concluded assessment of the assessee without recording any valid „reasons to believe‟. Before adverting any further, it would be relevant to cull out the impugned „reasons to believe‟ as had been brought to our notice by the ld. A.R, on the basis of which it is claimed by him that the A.O de hors recording of any valid „reasons to believe‟ had invalidly assumed jurisdiction and reopened the concluded assessment in the case of the assessee. Copy of the impugned „reasons to believe‟ (as certified by the chartered accountant), as had been filed by the assessee before us, reads as under :
P a g e |7 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2) On a specific query by the bench as regards the aforesaid scrollings on the copy of the aforesaid impugned „reasons to believe‟, it was submitted by the ld. A.R that the same were the notings of the assessee and not a part of the reasons which were provided by the A.O in the course of the assessment proceedings to the assessee company. We find that it is the claim of the ld. A.R that on the basis of the aforesaid impugned „reasons to believe‟ the case of the assessee company was reopened by the A.O. As observed by us hereinabove, it is the claim of the ld. A.R that the copy of the aforesaid „reasons to believe‟ were made available to the assessee by the A.O. As is discernible from a perusal of the „order sheet‟ notings, a copy of the „reasons to believe‟ was provided by the A.O to the assessee in the course of the assessment proceedings. The „order sheet‟ noting (relevant extract) reads as under:
" ORDER SHEET
PAN AAACI4274J Page
M/s KEC Infrastructure Limited
Name (Formerly KEC International Ltd.), A.Y : 2005-06
Chandivili, Andheri (East),
Address Mumbai - 400059. F.Y : 2004-05
T.B : 31.12.08
Status: Company
Date Particulars Signature
26/11/2009 Shri Jani, Sr. Officer (Taxation)of the assessee company attended and stated that they have already submitted a letter requesting to treat the revised return filed by the company as return filed in response to the notice u/s 148 and he has also requested to submit the reasons for reopening the assessment. He has again been requested to treat the return filed by the company earlier, as return filed pursuant to notice u/s 148.
Accordingly, the reasons recorded for reopening the assessment have been supplied to him and a notice u/s 142(1) along with a notice u/s 143(2) are issued and served upon him, for necessary compliance.
Date fixed for hearing 15-12-2009.
Sd/-
DCIT"
P a g e |8 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2)
9. We have perused the aforesaid impugned „reasons to believe‟ and find that neither the particulars of the assessing officer who is stated to have recorded the same, nor his signature and also the date of recording of the same is therein mentioned. In fact, we would not hesitate to observe that the aforesaid impugned „reasons to believe‟ are nothing better than a „dumb document‟, which to our understanding by no means could partake the character of valid „reasons to believe‟, which would have justified the reopening of the concluded assessment by the A.O under Sec. 147 of the Act. We are of the considered view that in the backdrop of the aforesaid serious infirmities the case of the assessee could not have been reopened on the basis of the aforesaid dumb „reasons to believe‟. As a matter of fact, the aforesaid infirmities in the impugned „reasons to believe‟ goes to very root of the validity of the jurisdiction assumed by the A.O under Sec. 147 of the Act. As per the mandate of law, the A.O can reopen an assessment under Sec. 147 r.w. Sec. 148(2) of the Act, only after validly recording the reasons which had led to the formation of a „belief‟ on his part that any income of the assessee chargeable to tax has escaped assessment. On a bare perusal of the aforesaid impugned „reasons to believe‟, we find, that apart from the fact that the same suffers from the aforesaid serious infirmities, there is nothing discernible therefrom on the basis of which it could be gathered that the A.O had formed a „belief‟ that the income of the assessee chargeable to tax had escaped assessment. In fact, the aforesaid impugned „reasons to believe‟ merely refers to certain facts viz. (i) that, the amount of Rs.21,89,84,000/- chargeable to tax under Sec.115JB of the Act has escaped assessment; and (ii) that, the capital gain chargeable to tax of Rs.3,99,43,082/- has escaped assessment. As is clearly discernible from the aforesaid „reasons to believe‟, there is nothing from where the „belief‟ of the A.O P a g e |9 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2) that the income of the assessee chargeable to tax had escaped assessment can be gathered. Accordingly, on the basis of our aforesaid observations, we are of the considered view that if the case of the assessee had been reopened by the A.O on the basis of the aforesaid „dumb‟ „reasons to believe‟, then in the absence of any valid assumption of jurisdiction on his part, the assessment framed by him under Sec. 147 r.w.s 143(3), dated 31.12.2009 cannot be sustained and would be liable to be vacated. We are also not oblivious of the fact that the claim of the ld. A.R that the case of the assessee was reopened on the basis of the aforesaid impugned „reasons to believe‟, which in fact does not inspire much of confidence, cannot be summarily accepted on the very face of it. We thus are of the considered view that in all fairness the matter requires to be restored to the file of the CIT(A), who is directed to verify the authenticity of the aforesaid claim of the assessee that its case was reopened on the basis of the aforestated impugned „reasons to believe‟. In case, if the aforesaid claim of the assessee is found to be in order, and it is found by the CIT(A) that the case of the assessee was reopened on the basis of the aforementioned dumb „reasons to believe‟, then the assessment framed by the A.O under Sec.143(3) r.w.s 147, dated 31.12.2009 being devoid and bereft of any valid assumption of jurisdiction shall stand quashed. Before parting, we may herein observe as a word of caution, that the CIT(A) shall in the course of the „set aside‟ proceedings verify the authenticity of the aforesaid claim of the assessee after calling for and perusing the assessment records. Needless to say, the CIT(A) shall in the course of the „set aside‟ proceedings afford a reasonable opportunity of being heard to the assessee who shall remain at a liberty to substantiate its claim qua the aforesaid solitary issue on the basis of fresh documentary evidence. As we have restored the matter to the file of the CIT(A) for fresh adjudication for making necessary P a g e | 10 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2) verifications as regards the validity of the jurisdiction assumed by the A.O under Sec. 147 of the Act, therefore, we refrain from adverting to the remaining grounds of appeal raised by the assessee as regards the merits of the case, which thus are left open.
10. The appeal of the assessee is partly allowed for statistical purposes in terms of our aforesaid observations.
Order pronounced in the open court on 28.08.2019 Sd/- Sd/-
(Shamim Yahya) (Ravish Sood) ACCOUNTANT MEMBER JUDICIAL MEMBER भुंफई Mumbai; ददन ुंक 28.08.2019 P.S Rohit
आदे श की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to :
1. अऩीर थी / The Appellant
2. प्रत्मथी / The Respondent.
3. आमकय आमक्त(अऩीर) / The CIT(A)-
4. आमकय आमक्त / CIT
5. विब गीम प्रतततनधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai
6. ग र्ड प ईर / Guard file.
सत्म वऩत प्रतत //True Copy// आदे शानस ु ार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीऱीय अधिकरण, भुंफई / ITAT, Mumbai.
P a g e | 11 ITA No. 4926/Mum/2011 A.Y. 2005-06 Summit Securities Ltd. Vs. DCIT-8(2)