Reasons recorded cannot be substituted at a later point in time by subsequent evidences

Red Hat India Pvt. Ltd. Vs DCIT (ITAT Mumbai)

From the bare reading of the proviso to section 147 of the Act, it is mandatory on the part of the ld AO to duly mention in the reasons recorded itself as to whether there is any failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment. In the instant case, from the reasons recorded (reproduced hereinabove), it could be seen that there is absolutely no mention of any failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment during the original assessment proceedings. Admittedly the original assessment proceedings were completed u/s 143(3) of the Act on 26.11.2009. We find that the law is now very well settled that the reasons recorded by the ld AO for reopening the assessment should duly mention the failure, if any, on the part of the assessee in disclosing full and true information relevant for the assessment if the reopening is made beyond 4 years from the end of the relevant assessment year; and that the reasons recorded cannot be substituted at a later point in time by subsequent evidences by the ld AO and that the reasons recorded should speak by itself and duly express the clear mind of the ld AO which enabled him to frame an opinion that income of the assessee had escaped assessment within the meaning of section 147 of the Act.

The reasons recorded by the Assessing Officer nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. It is for the Assessing Officer to disclose and open his mind through reasons recorded by him. He has to speak through his reasons. It is for the Assessing Officer to reach to the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the concerned assessment year. It is for the Assessing Officer to form his opinion. It is for him to put his opinion on record in black and white. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. Reasons are the manifestation of mind of the Assessing Officer. The reasons recorded should be self explanatory and should not keep the assessee guessing for the reasons. Reasons provide link between conclusion and evidence. The reasons recorded must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the Assessing Officer cannot be supplemented by filing affidavit or making oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of affidavit or oral submissions advanced.

Having recorded our finding that the impugned notice itself is beyond the period of four years from and does not comply with the requirements of proviso to section 147 of the Act, the Assessing Officer had no jurisdiction to reopen the assessment proceedings which were concluded on the basis of assessment under section 143(3) of the Act. On this short count alone the impugned notice is liable to be quashed and set aside.

FULL TEXT OF THE ORDER OF ITAT MUMBAI

These cross appeals in ITA Nos.5832/Mum/2017 & 6035/Mum/2017 for A.Y.2007-08 arise out of the order by the ld. Commissioner of Income Tax (Appeals)-24, Mumbai in appeal No.CIT(A)-24/DCIT-15(3)(1)/IT-193/2015-16 dated 09/06/2017 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 27/03/2015 by the ld. Dy. Commissioner of Income Tax-15(3)(1), Mumbai (hereinafter referred to as ld. AO).

2. The first preliminary issue raised by the assessee is with regard to challenging the validity of reopening of assessment for the Asst Year 2007-08 u/s 147 of the Act.

3. We have heard the rival submissions and perused the materials available on record. We find that the assessee company is engaged in the business of marketing, promotion and distribution of ‘Red Hat Subscriptions to customers in Indian Sub-Continent. The assessee basically acts as a distributor of Red Hat Subscription which enables the customers in India to avail the support services for open source software systems. The return of income for the Asst Year 2007-08 was filed by the assessee company on 31.10.2007 admitting loss of Rs 5,27,32,540/-. The original assessment was completed u/s 143(3) of the Act on 26.11.2009 determining total loss of Rs 5,03,97,261/-. Later this assessment was sought to be reopened by the ld AO vide issuance of notice u/s 148 of the Act dated 2.12.2013. This reopening notice was admittedly issued beyond 4 years but within 6 years from the end of the relevant assessment year. The assessee filed its return of income in response to notice u/s 148 of the Act and sought for reasons recorded for reopening the assessment. We find that the ld AO had duly furnished the reasons recorded for reopening of assessment which are reproduced hereunder for the sake of convenience:-

The scrutiny assessment in the case of Red Hat India Private Limited for A.Y. 2007-08 was completed on 26/11/2009 with assessed income as Rs. (-)5,03,97,621/-. On perusal of the case records it is observed that the an amount of Rs. 11, 54,29,132/- was shown as Unearned Revenue under the head ‘Current Liabilities’ by the assessee. The assessee has charged ail the expenses including the full cost of access to the subscription services (even if it is for 7 years), commission and training expenses etc, without taking into account the corresponding revenue. This accounting practice for recording of sales is in violation of the Indian Accounting Standard- 9 and Matching principle of accounting.

Further, RHIPL has failed to deduct tax as required u/s 195 of the Income Tax Act, 1961, while making the-payments to the foreign company- Red Hat Asia Singapore Pte. Ltd. Reliance is placed on the rulings of the AAR in the case of Citrix Systems Asia Pacific Pty. Ltd. and Acclerys K K, where it has been decided that the payment by the reseller of the software to its AE is in the nature of royalty within the meaning of section 9(1)(vi) of the Act.

Therefore payments made by RHIPL to its AE, Red Hat Asia Singapore Pte. Ltd., should be treated as royalty within the meaning of section 9(l)(vi) of the Act, on which no tax is deducted at source by RHIPL. Accordingly, the expenditure incurred for the purchase of the subscription service for reselling is liable to be disallowed u/s.40(a)(i) of the Act.

In view of the above, the entire unearned revenue is treated as revenue not offered for tax and should be taxed as income in the Assessment Year 2007-08. Therefore, I have reasons to believe that there is an escapement of income u/s 147 of the Act, 1961 and issue notice-u/s 148 of the I, T. Act, 1961.”

4. Admittedly, the reopening in this case had been made beyond 4 years from the end of the relevant assessment year. Hence the applicability of proviso to section 147 of the Act would come into operation. For the sake of convenience, the said proviso is reproduced hereunder:-

Income escaping assessment

Section 147 – ……………..

Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year:

4.1. Hence from the bare reading of the aforesaid proviso to section 147 of the Act, it is mandatory on the part of the ld AO to duly mention in the reasons recorded itself as to whether there is any failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment. In the instant case, from the reasons recorded (reproduced hereinabove), it could be seen that there is absolutely no mention of any failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment during the original assessment proceedings. Admittedly the original assessment proceedings were completed u/s 143(3) of the Act on 26.11.2009. We find that the law is now very well settled that the reasons recorded by the ld AO for reopening the assessment should duly mention the failure, if any, on the part of the assessee in disclosing full and true information relevant for the assessment if the reopening is made beyond 4 years from the end of the relevant assessment year; and that the reasons recorded cannot be substituted at a later point in time by subsequent evidences by the ld AO and that the reasons recorded should speak by itself and duly express the clear mind of the ld AO which enabled him to frame an opinion that income of the assessee had escaped assessment within the meaning of section 147 of the Act. Reliance in this regard is placed on the decision of the Hon’ble Jurisdictional High Court in the case of Hindustan Lever Ltd vs R. B.Wadkar reported in 268 ITR 332 (Bom) wherein it was held as under:-

“12. Firstly, the learned counsel for the petitioners contend that the notice issued under section 148 of the Act is barred by limitation in view of proviso to section 147. He further submits that nowhere in the reasons it is recorded or stated that the petitioner-assessee has failed to disclose fully and truly all material facts necessary for the assessment for that assessment year as such the Assessing Officer has no jurisdiction to reopen the concluded assessment after expiry of four years from the last day of the relevant assessment year. He, therefore, submits that the notice under section 148 cannot be held to be within limitation.

13. ……………………

14. ……………………..

15. ……………………

16. Mr. Desai, with respect to the contention that the notice under section 148 is barred by limitation and that the Assessing Officer has no jurisdiction to issue such notice, contends that even if the words “failure to disclose fully and truly all material facts relevant for assessment for assessment year” are absent in the reasons recorded, still such reasons can be inferred on the text of the reasons recorded. He, therefore, submits that the notice under challenge is well within the scope of section 147 as such this petition is liable to be dismissed being without any substance.

Consideration:

17. Having heard the parties at length, we are of the opinion that the petitioner can be disposed of on the first contention raised by the petitioner, wherein the petitioner has contended that the notice issued under section 148 is without jurisdiction being hit by the proviso to section 147 of the Act as such not within the prescribed period provided under proviso to section 147 of the Act. In the circumstances, it would be necessary to turn to section 147 of the Act, which reads as under :

“147. Income escaping assessment.—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 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 (hereinafter in this section and in sections 148 to 153 referred to as the relevant assessment year) :

Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year.”

18. ………….

19. In the case in hand it is not in dispute that the assessment year involved is 1996-97. The last date of the said assessment year was 31st March, 1997 and from that date if four years are counted, the period of four years expired on 1st March, 2001. The notice issued is dated 5th November, 2002 and received by the assessee on 7th November, 2002. Under these circumstances, the notice is clearly beyond the period of four years.

20. The reasons recorded by the Assessing Officer nowhere state that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment of that assessment year. It is needless to mention that the reasons are required to be read as they were recorded by the Assessing Officer. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn based on reasons not recorded. It is for the Assessing Officer to disclose and open his mind through reasons recorded by him. He has to speak through his reasons. It is for the Assessing Officer to reach to the conclusion as to whether there was failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the concerned assessment year. It is for the Assessing Officer to form his opinion. It is for him to put his opinion on record in black and white. The reasons recorded should be clear and unambiguous and should not suffer from any vagueness. The reasons recorded must disclose his mind. Reasons are the manifestation of mind of the Assessing Officer. The reasons recorded should be self explanatory and should not keep the assessee guessing for the reasons. Reasons provide link between conclusion and evidence. The reasons recorded must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the Assessing Officer cannot be supplemented by filing affidavit or making oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of affidavit or oral submissions advanced.

(emphasis supplied by us herein)

21. Having recorded our finding that the impugned notice itself is beyond the period of four years from the end of the assessment year 1996-97 and does not comply with the requirements of proviso to section 147 of the Act, the Assessing Officer had no jurisdiction to reopen the assessment proceedings which were concluded on the basis of assessment under section 143(3) of the Act. On this short count alone the impugned notice is liable to be quashed and set aside.

22. Since we are setting aside the impugned notice only on the first ground of challenge, in our opinion it is not necessary to go to the other question and record our findings in that behalf.

23. In the result, the impugned notice is quashed and set aside. Rule is made absolute in terms of prayer clause (a) with no order as to costs.”

4.2. Respectfully following the aforesaid decision of Hon’ble Jurisdictional High Court, we have no hesitation in holding that the reopening of assessment made for the Asst Year 2007-08 is to be declared void abinitio and is hereby quashed. In view of this decision on one aspect of reopening of assessment, the other legal arguments advanced by the ld AR on the aspect of non-compliance with provisions of section 151 of the Act , absence of tangible material for reopening etc , need not be gone into and they are left open. Since the reopening of assessment for the Asst Year 2007-08 is quashed, there is no need to adjudicate the other grounds in assessee as well as revenue appeal on merits as they would be academic in nature.

5. In the result, the appeal of the assessee is allowed and appeal of the revenue is dismissed.

Order pronounced on 30/03/2021 by way of proper mentioning in the notice board.