Main Provisions involved: Section 147 to Section 153 Brief ... · SC in Parsuram Potteries 106 ITR...

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Reopening Provisions under Income Tax Act- Biodata and Profile

(By Kapil Goel Advocate)

[email protected]

9910272806

1. Main Provisions involved: Section 147 to Section 153

Brief overview of aforesaid provisions

Section 147 Income escaping assessment

Three provisos

Four explanations

Section 148 Issue of notice where income has escaped

assessment

Two subsections

Section 149 Three sub sections

mailto:[email protected]


Section 150 Provision for cases where assessment is in

pursuance of an order of appeal etc

(two sub-sections)

Section 151 Sanction for issue of notice

Section 152 Other provisions

Section 153(2) Time limit for completion of assessment

reassessment and re-computation

2. Locus classicus ( Main Supreme court rulings which covers the

subject)

Citation and Title Brief ratio

Kelvinator 320 ITR 561 (SC)

three judge bench

Change of opinion and tangible

material required

SC in Rajesh Jhaveri 291 ITR 500 Reasons to believe means

prima-facie opinion


SC in Parsuram Potteries 106 ITR

1

Importance of finality in legal

proceedings

SC in Lakmani Mewal dass 103

ITR 437

Requirement of live nexus in

reasons to believe (different

from reason to suspect)

SC in Chuggamal Rajpal v. S.P.

Shaliha & Ors., (1971) 79 ITR

603 (SC)

Requirement of positive material

in reasons to believe and

application of mind

SC in Green World corp. 314 ITR

81

Meaning of directions and

reopening on basis of dictates

not allowed

SC in HEZ Nizam case 242 ITR

381

Multiplicity of proceedings not

allowed on same cause of action

Delhi high court in J.sekar vs

UOI (12/01/2018)

Reasons to believe recording

explained at length with

reference to application of mind

angle (held rubber stamp


reasons no reasons)

Delhi high court Sabh

Infrastructure 398 ITR 198

Standard procedure in

reopening stipulated

3. Notice issuance& service : refer following legal provisions & case

laws

a. Section 282 & Section 282A

b. Rule 127 & Rule 127A

c. Notification of 20/12/2017

d. Section 124(3) & Section 292BB (timely objection before AO

to assail notice not valid)

e. Hon ble Delhi High Court in the case of Pr. CIT-1 Vs Atlanta

Capital Pvt. Ltd. in ITA Nos. 6650 & 6651/2015, order dated

21.09.2015 & Chetan Gupta 382 ITR 613

f. Key aspects & issues: whether AO duty bound to refer latest

available address , Yes ( Eshaan Holding (P.) Ltd. [2012) 344


ITR 0541); Service by mode given in notification of

20/12/2017 to be chosen when notice could not be served

normally; on non issue of notice objection can be raised at

any stage as issue is not covered u/s 292BB (refer Delhi high

court in Silver line 383 ITR 455 etc); address proper is

critical to notice issue and service

4. Nature of return filed in pursuance to notice u/s 148 Important

aspects

a. Firstly said return is akin to return u/s 139; (refer Delhi high

court in Adobe case order dated 28/03/2014 and section

148(1))

b. Secondly filing of return u/s 148 cannot confer jurisdiction on

AO (refer Delhi high court in Adobe case )

c. Thirdly income declared in said return ordinarily cannot invite

concealment penalty as it is prior to detection (refer Delhi

ITAT detailed decision in case of Ravina Khurana order dated


26/03/2018 referring to the Hon’ble Punjab & Haryana High

Court in the case of CIT v. Rajiv Garg reported in 313 ITR 256

(P &H); Hon’ble Apex Court in the case of CIT vs. Suresh

Chandra Mittal reported in 251 ITR 9 (SC); Delhi High Court

in the case of Pr. CIT v. Neeraj Jindal reported in 393 ITR 1;

Delhi high court in case of Harnarain order dated

31/10/2011) (Apex court ruling in Mak Data 358 ITR 593 can

be distinguished )

d. Fourthly reasons can be supplied as per Delhi high court in

Adobe case only post return filing u/s 148 where as

according to Allahabad high court in Mitlesh Tripathi case

280 ITR 16 says reasons could be supplied without return

also as it leads to more transparency

5. What should be stage for issuance of notice u/s 143(2) post

return filing u/s 148 (as per Hotel Blue Moon SC ruling in 321

ITR 362)


a. Notice u/s 143(2) on same day of return filing u/s 148/139 is

held to be bad;

b. In reopening proceedings notice u/s 143(2) issued prior

to/parallel with reasons being supplied as requested by

assessee in letter filing return u/s 148 is not valid and atleast

AO in that case must reasonably allow GKN driveshaft 259

ITR 19 process to be exhausted

c. For framing assessment u/s 143(3)/147 valid notice u/s 143(2)

is sine qua non which must be issued on basis of valid return

u/s 148

d. Role of section 144 to be carefully seen

6. Broad categories of reopening and various scenarios

- Classification on basis of what happened in past in assessee’s

case


i) When only intimation is given (u/s 143(1)) (within four

and after four years) (only thing to see reasons to

believe and sanction by competent authority)

ii) When already scrutiny assessment is made and

reopening is made with 4 yrs from asst year end

(reasons + sanction + change of opinion protection

available);

iii) When already scrutiny assessment is made and

reopening is made after four years end from asst year

end ((reasons + sanction + change of opinion + ist

proviso to section 147 applies (disclosure angle)

protection available);

- Classification on basis of types of information recd by AO


i) Investigation wing information (leading citations: 329

ITR 110, 338 ITR 51, 384 ITR 147, 395 ITR 677, 396 ITR

5, 398 ITR 198,);

ii) AIR/database information for cash deposits (Delhi ITAT

in Bir Bahadur Singh Sijalwi 68 SOT page 197

followed in DELHI ITAT in Mahabir Prasad case 9

October, 2017 and Krishan Kumar case 15.12.2017

Held not possible); Sh. Amrik Singh vs. ITO reported in

159 ITD 329

iii) AIR information for immovable property dealings

(already capital gains offered in different year double

taxation angle, factually wrong information, reasons

inchoate and vague, year of transfer, capital gains

assessable where, etc)

Income Tax Appellate Tribunal - Pune

Dnyaneshwar Govind Kalbhor ... vs Department Of

Income Tax on 5 August, 2016

https://indiankanoon.org/doc/112781688/


“14. On a close scrutiny of the reasons recorded, we

simultaneously notice that the Assessing Officer has

nowhere indicated the quantum of income which has

escaped or is likely to have escaped assessment. Thus,

the entire process so initiated appears to be vague and

listless. The formation of 'reason to believe' is expected

to be qua the quantum of income that has escaped

assessment on prima facie consideration of relevant

material. The escapement in generic terms stated to be

in millions without formulating any belief thereon is

bizarre & inexplicable. On this ground also, the action

of the Assessing Officer in issuing notice under section

147 cannot be approved. Needless to say, the assessing

officer does not enjoy unbridled or sweeping powers in

the matter of reopening an assessment. The provisions

of section 147 are structured with inbuilt safeguards

and requirements of the provision need to be strictly

complied with. From the recorded reasons, we may





note that while purported sale proceeds of

Rs.5,76,15,000/- is referred to by the Assessing Officer,

the corresponding cost of acquisition of property which

is germane to determination capital gain allegedly

escaped has not been referred to at all. Apparently, the

Assessing officer has pre-supposed the existence of

capital gains without acquiring objective knowledge

about the cost of acquisition of assets. In the absence

of cost of acquisition available, it is nearly impossible

to visualize with some degree of certainty as to

whether such transaction has resulted in any gain at

the first place or not to allege escapement thereof.

Thus, the action of the AO is marred on this score

also.”

iv) AIR information for share sale /purchase (Mumbai ITAT

in Ajay Doshi HUF)


7. Scope of new Amendment in section 147 explanation

4[(ca) where a return of income has not been furnished by the

assessee or a return of income has been furnished by him and on

the basis of information or document received from the prescribed

income-tax authority, under sub-section (2) of section 133C, it is

noticed by the Assessing Officer that the income of the assessee

exceeds the maximum amount not chargeable to tax, or as the

case may be, the assessee has understated the income or has

claimed excessive loss, deduction, allowance or relief in the return;]

Notable points: firstly explanation cannot be interpreted like main

substantive provision and it has to be read in light of main

provisions that is, explanation generally cannot add what is not

there in main provision ; secondly, given explanation to section

148 only deems income escaping assessment but same cannot


override section 148 etc which indispensably requires recorded

reasons to believe (on basis of tangible material) and appropriate

sanction to reasons; thirdly, said clause requires following aspects

to be verified with authenticity: i) whether return is filed or not

(failure to record correct fact regarding return filing is fatal to

reopening held by 396 ITR 5 & various other decisions) ii) factum

of information being recd (information to be actionable should be

incriminatory in nature giving rise to chargeable income) iii)

independent application of mind by AO as evident from words “it

is noticed by assessing officer” (for definition of assessing officer

refer section 2(7A) of the Act) iv) prima facie existence of

chargeable income in hands of assessee concerned. That is

assessing officer before making reasons to believe u/s 148 on

basis of given information must satisfy himself that chargeable

income exists for which necessary enquiries may be required to be

made like calling of bank statement in case of cash deposits, like

calling of full sale deed in case of immovable property transactions

etc


8. Scope of explanation 3 to section 147

Explanation 3.—For the purpose of assessment or reassessment

under this section, the Assessing Officer may assess or reassess the

income in respect of any issue, which has escaped assessment, and

such issue comes to his notice subsequently in the course of the

proceedings under this section, notwithstanding that the reasons

for such issue have not been included in the reasons recorded

under sub-section (2) of section 148.

Juliet Industries Limited IN THE INCOME TAX APPELLATE

TRIBUNAL

“G” BENCH, MUMBAI : 04/04/2018

“…Therefore, the Ld. AO, in our opinion, has exceeded his

jurisdiction by way of making fishing & roving inquiries, which

could not be sustained. The reassessment proceedings were never


meant to give second inning or chance to revenue to scrutinize

the assessee’s return of income particularly when no tangible

material suggesting escapement of income was available on

record. There should have been minimum material to trigger

further action on the part of Ld. AO so as to assume valid

jurisdiction u/s 147/148. It is trite law that there must be an end to

litigation and finality of issues and the issues could not be agitated

/ reagitated or revisited by the respective parties except within the

framework of law. The Explanation-3 to Section 147, in our

opinion, could not enlarge the scope of basic provisions as

contained in Section 147 and the

primary conditions as envisaged by Section 147 viz. reasons to

believe was required to be fulfilled before resorting to

reassessment

proceedings….Further, both the Hon’ble Courts have observed that

a fresh notice u/s 148 with respect to new items would be

required, which is missing in the present case. 6.6 In view of the

above stated analysis, we find that Ld. AO was not right in


assuming jurisdiction with respect to independent and

unconnected items without any tangible material or information

suggesting escapement of income which was the basic

requirement of Section 147. Hence, impugned additions u/s 68

could not survive…”

9. Certain elementary principles

a. Burden to prove that income has escaped assessment lies on

shoulders of revenue: 303 ITR 95 (Delhi high court Pardeep

Gupta case)

b. Validity of reopening to be strictly seen in light of reasons

recorded as communicated to assessee : Bombay high court

Hindustan Lever case and Delhi high court in Singature

Hotels 338 ITR 51 and Sarthak Securities 329 ITR 110;

c. Principle of natural justice to be strictly fulfilled like

confrontation and cross examination of back material

(leading judgment SC in Andaman Timber industries281 CTR

241 Held order passed in violation of natural justice a nullity;


also relevant are SC in Sahara case & 300 ITR 403, SC in

Kishan Chand Chellaram 125 ITR 713 & Bombay high court

H.R.Mehta 387 ITR 561 & SC three judge bench in Sona

Builder vs UOI (decision dated 24/07/2001))

(Also cross examination of officer recording statement can be

sought)

d. Uniformity and consistency in revenue action (Madras high

court in case of Karti.Chidambram 13/11/2017)

In Berger Paints India Ltd., vs. Commissioner of Income Tax,

Calcutta, (2004) 12 SCC 42, the Supreme Court has opined in

this regard, at paras 12 thus : “12. In view of the judgments

of this Court in Union of India vs. Kaumudini Narayan Dalal,

(2001) 10 SCC 231, CIT vs. Narendra Doshi, (2004) 2 SCC 81,

and CIT vs. Shivsagar Estate , (2004) 9 SCC 420, the principle

established is that if the Revenue has not challenged the

correctness of the law laid down by the High Court and has

accepted it in the case of one assessee, then it is not open to


the Revenue to challenge its correctness in the case of other

assesses, without just cause.”

e. Sublato fundamento cadit opus (when foundation fail super

structure fall) refer following citations in this regard:

i. Supreme Court of India State Of Punjab vs Davinder

Pal Singh Bhullar & ... on 7 December, 2011

“72. It is a settled legal proposition that if initial action is

not in consonance with law, all subsequent and

consequential proceedings would fall through for the

reason that illegality strikes at the root of the order. In

such a fact-situation, the legal maxim "sublato

fundamento cadit opus" meaning thereby that

foundation being removed, structure/work falls, comes

into play and applies on all scores in the present case.

73. In Badrinath v. State of Tamil Nadu & Ors., AIR 2000

SC 3243; and State of Kerala v. Puthenkavu N.S.S.




Karayogam & Anr., (2001) 10 SCC 191, this Court

observed that once the basis of proceeding is gone, all

consequential acts, actions, orders would fall to the

ground automatically and this principle is applicable to

judicial, quasi-judicial and administrative proceedings

equally.

74. Similarly in Mangal Prasad Tamoli (dead) by Lrs. v.

Narvadeshwar Mishra (dead) by Lrs. & Ors., (2005) 3 SCC

422, this Court held that if an order at the initial stage is

bad in law, then all further proceedings, consequent

thereto, will be non est and have to be necessarily set

aside. 75. In C. Albert Morris v. K. Chandrasekaran & Ors.,

(2006) 1 SCC 228, this Court held that a right in law

exists only and only when it has a lawful origin. (See

also: Upen Chandra Gogoi v. State of Assam & Ors.,

(1998) 3 SCC 381; Satchidananda Misra v. State of Orissa

& Ors., (2004) 8 SCC 599; Regional Manager, SBI v.








Rakesh Kumar Tewari, (2006) 1 SCC 530; and Ritesh

Tewari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823).

76. Thus, in view of the above, we are of the considered

opinion that the orders impugned being a nullity, cannot

be sustained. As a consequence, subsequent

proceedings/orders/FIR/ investigation stand automatically

vitiated and are liable to be declared non est.”

ii. 180 ITR 319: Punjab-Haryana High Court

Commissioner Of Income-Tax vs Atlas Cycle

Industries on 24 April, 1989

iii. Hon'ble Punjab & Haryana High Court in the case of

CIT Vs Paramjit Kaur 311 ITR 38,

10. Key Steps/Check list





a. Whether notice issued to existing person (refer DHC in 247

CTR 500 spice info case approved by SC) Notice to dead

person invalid; (latest Gujarat high court decision in case of

b. Whether notice issued within time limit (refer Delhi high

court in Nokia case and ST Micro electronics and Allahabad

high court in Kusum Gupta case)

c. Whether notice issued by jurisdictional and proper officer

having jurisdiction over the case (vs PAN Database) (refer SC

in Raza Textiles case)

d. Whether notice can be vague or it should be specific (refer

SC in 289 ITR 341 Manish Maheshwari case and DHC 300 ITR

83 New Delhi Auto finance case)

e. Letter filing return of income or no income assessable there

under protest (nature of return filed u/s 148 = return u/s 139

refer Delhi high court Adode case for penalty purposes)

f. Right to receive reasons with sanction (read them properly &

before filing objections must seek all information referred

in reasons by separate letter) SC in GKN case 259 ITR 19


g. When aforesaid exercise is completed then draft

comprehensive objections (like proviso disclosure aspect ,

application of mind aspect and live nexus aspect ; sanction

aspect etc)

h. Objections must be disposed by separate speaking order

with application of mind (at this stage assessee can go for

writ)

i. Gap between objection disposal and final order (4 weeks

cooling period)

j. Final order u/s 147 different from objection disposal order


Draft suggested Letter-1

(to be filed when reasons are obtained and it is known from reasons

that investigation wing information is used extensively, and prior to

filing objections against reasons)

Seek following information:

i) Relevant extract of investigation wing report concerning

assessee ;

ii) Material gathered by investigation wing

iii) Statements recorded by investigation wing

iv) Reference letter recd from investigation wing etc

(Prey at the outset cross examination of revenue witness if any)


Letter-2 Objections to reasons/reopening

Part 1 (issue and service of notice)

If applicable on facts, challenge issue of notice is time barred u/s 149

with reference to dispatch date (when notice was sent out of control of

AO) refer Delhi high court in Qualimax and recent decision of Nokia

On service aspect : if applicable , challenge jurisdictional notice u/s 148

not served as per law and proceedings are invalid (when notice u/s 148

not served and proceedings are intimated later by telephone or notice

u/s 142 etc)

Part 2


Jurisdiction aspect in light of notice not issued by assessing officer of

assessee (refer section 124(3)) object within 30 days of notice recd.

(Note PAN database cannot confer jurisdiction) (refer section

2(7A),section 120 & section 124)

Part 3

Notice issued to living person or dead person

(above three parts are challenging notice u/s 148)

Part 4 main objections against reasons (read reasons carefully)

Key aspects to object:

Applies when earlier assessment is framed u/s 143(3)

i) Ist proviso to section 147: assail AO did not specify how

assessee disclosure faulty and weak (refer 398 ITR 198)


ii) Change of opinion and review: when already assessee filed

every thing in original scrutiny assessment to take second view

on self same material is not allowed (refer 320 ITR 561);

Applies in all contingencies

iii) Reasons do not sprout and give rise to any income escaping

assessment per se and reasons cannot stand on its own legs ;

(396 ITR 5 etc)

iv) Reasons based on borrowed satisfaction and suffers from lack

of application of mind (refer 395 ITR 677)

v) Return filing aspect missed (refer 396 ITR 5);

vi) Live nexus aspect (coherence, cause and effect relationship,

reasons not inductive and deductive) refer 103 ITR 437;

vii) Difference between reasons to believe and reasons to suspect

(refer 103 ITR 437)


viii) Highlight weakness in information referred in reasons that same

is scanty, vague ; not actionable and is inchoate and said

information is not incriminatory in nature;

ix) Find reasons seek to verify in garb of reopening and intend to

make roving and fishing enquiries which is impermissible

specially in AIR based cases;

x) If reply filed u/s 133(6) prior to reopening , and reasons are

silent on it highlight the same;

xi) If reasons want to make protective assessment challenge it by

saying no protective assessment permissible u/s 147;

xii) Condition of section 149 when reopening made after four years

fulfilled check;

xiii) Law on sanction:


a. Always seek reasons which are with sanction of higher

authorities;

b. AO duty bound to supply reasons with sanction copy;

c. Check sanction by proper and competent officer;

d. Further see if sanction is mechanical and ritualistic : challenge

it (391 ITR 11 etc);

Bombay high court recent decision in


M/s. Shodiman Investments Pvt. Ltd., .. Respondent.

INCOME TAX APPEAL NO. 1297 OF 2015

DATE : 16th APRIL, 2018.

We find that at the time of reopeningof the Assessment, the

Assessing Officer did not provide the reasons recorded in support of the

reopening notice in its entirety, to the RespondentAssessee.

This was contrary to and in defiance of the decision of the Apex Court

in GKN Driveshaft v/s. ITO 259 ITR 219. The entire objects of reasons

for reopening notice as recorded being made available to an Assessee,

is to enable the Assessing Officer to have a second look at his reasons

recorded before he proceeds to assess the income, which according to

him, has escaped Assessment. In fact, non furnishing of reasons would

make an Assessment Order bad as held by this Court in CIT v/s. Videsh

Sanchar Nigam Ltd., 340 ITR 66. In fact, partial furnishing of reasons

will also necessarily meet the same fate i.e. render the Assessment Order

on reopening

notice bad. Therefore, on the above ground itself, the question as

proposed does not give rise to any substantial question of law as it is

covered by the decision of this Court in Videsh Sanchar Nigam Ltd.,

(supra) against the Revenue in the present facts.

Besides, the submissions made on behalf of the Revenue that

in view of the decision of the Apex Court in Rajesh Jhaveri Stock Brokers

Pvt. Ltd., (supra), the Assessing Officer is entitled to reopen

the Assessment for whatever reasons and the same cannot be subjected

to jurisdictional review, is preposterous. First of all, taking out a word or


sentence from the entire judgment, divorced from the context and

relying upon it, is not permissible (see CIT v/s. Sun Engineering Works

(P) Ltd., 198 ITR 297)

Therefore, the sentence being relied upon was made in the context

of the change in law that under the amended provision 'reason to

believe' that in case of escaped assessment, is sufficient to reopen

the assessment. This unlike the earlier provision of Section 147(a) of the

Act which required two conditions i.e. failure to disclose fully and truly

all facts necessary for assessment and reason to believe that income has

escaped assessment. Thus, the observations being relied upon must be

read in the context in which it was rendered. On so reading the

submission, will not survive.

11 Further, a reading of the entire decision, it is clear that the

reasonable belief on the basis of tangible material could be, prima facie,

formed to conclude that income chargeable to tax has escaped

assessment. Mr. Mohanty, learned Counsel is ignoring the fact that the

words 'whatever reasons' is qualified by the words 'having reasons to

believe that income has escaped assessment'. The words whatever

reasons only means any tangible material which would on application to

the facts on record lead to reasonable belief that income chargeable to

tax has escaped assessment. This material which forms the basis, is not

restricted, but the material must lead to the formation of reason to

believe that income chargeable to tax has escaped Assessment. Mere

obtaining of material by

itself does not result in reason to believe that income has escaped

assessment. In fact, this would be evident from the fact that in para 16


of the decision in Rajesh Jhaveri Stock Brokers Pvt., Ltd., (supra), it is

observed that the word 'reason' in the …. 'reason to believe' would

mean cause or justification. Therefore, it can only be the basis of

forming the belief However, the belief must be independently formed in

the context of the material obtained that there is an escapement of

income. Otherwise, no meaning is being given to the words 'to believe'

as found in Section 147 of the Act. Therefore, the words 'whatever

reasons' in Rajesh Jhaveri Stock Brokers Pvt. Ltd., (supra), only means

whatever the material, the reasons recorded must indicate the reasons

to believe that income has

escaped assessment. This is so as reasons as recorded alone give the

Assessing Officer power to reopen an assessment, if it reveals/ indicate,

reasons to believe that income chargeable to tax has escaped

assessment.

12 The reopening of an Assessment is an exercise of extraordinary

power on the part of the Assessing Officer, as it leads to

unsettling the settled issue/assessments. Therefore, the reasons to

believe have to be necessarily recorded in terms of Section 148 of the

Act, before reopening notice, is issued. These reasons, must indicate the

material (whatever reasons) which form the basis of reopening

Assessment and its reasons which would evidence the linkage/ nexus to

the conclusion that income chargeable to tax has escaped Assessment.

This is a settled position as observed by the Supreme Court in S.

Narayanappa v/s. CIT 63 ITR 219, that it is open to examine whether

the reason to believe has rational connection with the formation of the


belief. To the same effect, the Apex Court in ITO v/s. Lakhmani Merwal

Das 103 ITR 437 had laid

down that the reasons to believe must have rational connection with or

relevant bearing on the formation of belief i.e. there must be a live link

between material coming the notice of the Assessing Officer and the

formation of belief regarding escapement of income. If the aforesaid

requirement are not met, the Assessee is entitled to challenge the very

act of reopening of Assessment and assuming jurisdiction on the part of

the Assessing Officer.

13 In this case, the reasons as made available to the

RespondentAssessee as produced before the Tribunal merely indicates

information received from the DIT (Investigation) about a particular

entity, entering into suspicious transactions. However, that material is

not further linked by any reason to come to the conclusion that the

RespondentAssessee has

indulged in any activity which could give rise to reason to believe on the

part of the Assessing Officer that income chargeable to tax has escaped

Assessment. It is for this reason that the recorded reasons even does

not indicate the amount which according to the Assessing Officer, has

escaped Assessment. This is an evidence of a fishing enquiry and not a

reasonable belief that income chargeable to tax has escaped

assessment.

14 Further, the reasons clearly shows that the Assessing Officer

has not applied his mind to the information received by him from the

DDIT (Inv.). The Assessing Officer has merely issued a reopening

Notice on the basis of intimation regarding reopening


notice from the DDIT (Inv.) This is clearly in breach of the settled

position in law that reopening notice has to be issued by the Assessing

Office on his own satisfaction and not on borrowed satisfaction.

Main Provisions involved: Section 147 to Section 153 Brief ... · SC in Parsuram Potteries 106 ITR...

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