TaxTMI 
TaxTMI 
2015 (12) TMI 1079
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....ee to fully and truly disclose all the material particulars necessary for the assessment. It is contended by the learned counsel for the petitioner that apart from there being no such failure, in fact, there is not even an allegation in the reasons that there has been such a failure on the part of the assessee. 3. The second ground urged on behalf of the petitioner/assessee is that this is a case of change of opinion inasmuch as the very issue sought to be raked up by way of the impugned notice under Section 148 of the said Act has been considered by the Assessing Officer during the time of the original assessment under Section 143 (3) of the said Act. 4. The original assessment under Section 143(3) was completed on 18.12.2009. This was, however, after a questionnaire had been issued to the assessee during the assessment proceedings on 12.06.2009. Question No. 3 of the questionnaire specifically required the assessee to give the names, addresses and PAN numbers of the shareholders along with their percentages/ ratios. This was provided by the assessee. In fact, the Assessing Officer did not stop at that and issued notices under Section 133(6) of the said Act to the individual....
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.... We are assessed to Income Tax and our PAN is AAACS 1172 N. The Amount has been paid out of realization from our debtors. For Sino Credits And Leasing Limited Sd/ Director" Similar letters were issued to all the share applicants and confirmations were obtained from the said share applicants. 6. The summary of documents filed by the petitioner/assessee and the confirmations received from the third parties directly by the Assessing Officer have been set out in Annexure P-XIII, which reads as under:- "SUMMARY OF DOCUMENTS FILED BY THE PETITIONER/ASSESSEE AND CONFIRMATIONS RECEIVED FROM THIRD PARTIES DIRECTLY BY THE ASSESSING OFFICER ANNEXURE-P-XIII S. No. Name of Party Amount Relevant documents filed by Petitioner / Assessee and verified by Assessing Officer during proceedings u/s 143(3) Confirmations/ documents directly received by AO u/s 133(6) and duly verified 1 Advantage Software Pvt. Ltd. 1000000 i. Confirmation Letter filed i. Confirmation letter recd ii. IT Return filed ii. IT Return recd iii. Bank Statement recd 2 Central Gum & Chemical Ltd. 4000000 Confirmation Letter filed i. Confir....
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....bsp; Total amount as per notice 28500000 7. It is only after all the above mentioned information was received by the Assessing Officer, that the assessment was framed under Section 143(3) on 18.12.2009. In the assessment order itself, it has been specifically recorded as under:- "In response through Harish Kumar, C.A and A.R attended the proceedings and submitted the requisite details/ information/ documents from time to time. Case was discussed with him." 8. It is clear that after the Assessing Officer examined the aspect of the share application money received by the assessee through the issuance of a questionnaire and notices under Section 133(6) of the said Act, the assessment under Section 143(3) of the said Act was framed on 18.12.2009. 9. The learned counsel for the petitioner placed reliance on the decision of this Court in Lahmeyer Holding GMBH v. Deputy Director of Income Tax: [2015] 376 ITR 70 (Delhi) to submit that the re-assessment proceedings would be invalid in case an issue or query is raised and answered by the assessee in the original assessment and yet, the Assessing Officer does not make any addition in the assessment ....
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....eyer Holding GMBH (supra). Therefore, the present exercise of issuing the notice under Section 148 of the said Act would be nothing but one of change of opinion, which is impermissible. 12. The second point that has been urged by the learned counsel for the petitioner/assessee is that even otherwise, the impugned notice under Section 148 and the proceedings pursuant thereto have to be set aside for the simple reason that the clear pre-conditon of there being a failure on the part of the assessee to fully and truly disclose all the material particulars necessary for assessment, has not been made out. In fact, if one looks at the reasons which have been supplied for initiating re-assessment, there is not even an allegation that there has been such a failure on the part of the petitioner/ assessee. For the sake of convenience, the reasons are set out herein below:- "Income Tax Department 26/02/2014 Reasons for reopening the case of M/s Shri Parasram Industries P. Ltd. (AABCS7930D) A.Y. 2007-08, U/s 147/148 of the Income Tax Act, 1961 1. Information /documents in the form of CD has been received from the office of ACIT, Central Circle 22-New Delhi wherein it was revea....
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.... P. Ltd. 6,00,000 10.04.2006 Ch. No.775320 dt. 11.04.06 V.A. Foods SIB Shri Parasram Indus. P. Ltd. 6,00,000 10.04.2006 Ch. No.793197 dt. 17.04.06 Central Gum SIB Shri Parasram Indus. P. Ltd. 30,00,000 10.04.2006 Ch. No.287098 dt. 15.04.06 Dhamaka Trading OBC Shri Parasram Indus. P. Ltd. 10,00,000 10.04.2006 Ch. No.397652 dt. 13.04.06 Giriasho Company OBC Shri Parasram Indus. P. Ltd. 9,00,000 20.04.2006 Ch. No.000034 dt. 18.04.06 New Star Kotak Shri Parasram Indus. P. Ltd. 10,00,000 20.04.2006 Ch. No.000121 dt. 18.04.06 Advantage Kotak Shri Parasram Indus. P. Ltd. 10,00,000 20.04.2006 Ch. No.727314 dt. 18.04.06 Zenith Estates IPSB Shri Parasram Indus. P. Ltd. 10,00,000 21.04.2006 Ch. No.786367 dt. 18.04.06 Central Gum SIB Shri Parasram Indus. P. Ltd. 10,00,000 29.04.2005 Ch. No.141336 dt. 27.04.06 Vijay Conductors HDFC Shri Parasram Indus. P. Ltd. 15,00,000 29.04.2005 Ch. No.115494 dt. 01.05.06 Vijay Conductors HDFC Shri Parasram Indus. P. Ltd. 15,00,000 29.04.2005 Ch. No....
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....made. In Haryana Acrylic (supra), this Court had observed as under:- "29. In the reasons supplied to the petitioner, there is no whisper, what to speak of any allegation, that the petitioner had failed to disclose fully and truly all material facts necessary for assessment and that because of this failure there has been an escapement of income chargeable to tax. Merely having a reason to believe that income had escaped assessment, is not sufficient to reopen assessments beyond the four year period indicated above. The escapement of income from assessment must also be occasioned by the failure on the part of the assessee to disclose material facts, fully and truly. This is a necessary condition for overcoming the bar set up by the proviso to section 147. If this condition is not satisfied, the bar would operate and no action under section 147 could be taken. We have already mentioned above that the reasons supplied to the petitioner does not contain any such allegation. Consequently, one of the conditions precedent for removing the bar against taking action after the said four year period remains unfulfilled. In our recent decision in Wel Intertrade Private Ltd. [2009] 308 ....