TaxTMI 
TaxTMI 
2016 (5) TMI 580
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....e material particulars necessary for the assessment is absent. It is contended that there was true and full disclosure of all material particulars made by the assessee and the reasons for re-opening do not even show that there was any such failure on the part of the assessee. It is further contended that it is a clear case of change of opinion, in as much as, the issue sought to be raked up by way of the impugned notice under Section 148 of the Act had been duly considered by the Assessing Officer during the original assessment under Section 143(3) of the Act. 3. The original assessment under Section 143(3) of the Act was completed on 07.10.2009. The return of income was filed on 16.11.2007. On 15.07.2009 a detailed questionnaire was issued by the Assessing Officer during the original proceedings under Section 143(3) of the Act raising specific queries with regard to share application money. The specific query raised by the questionnaire dated 15.07.2009 pertaining to the share application money is as under:- "B.1 For share capital, loans other than banks and inter corporate deposits, introduced/taken during the year and also in the period after passing of last order U/s'....
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...., Vishnu Garden, New Delhi-110018. AAACM8918J 56700 M/s U.P. Electricals Ltd. 2A/55, Ground Floor, Ramesh Nagar, New Delhi-110 015 AAACU0290M 33400 M/s B. Fin-Lease Pvt. Ltd. 1/16 Ist Floor, Asaf Ali Road, New Delhi-110002 AAACB6410C 43400 M/s Tashi Contractors (P) Ltd. Shop No. 20, Krishna Market, Bawana Road, Pooth Khurd, Delhi AAACT6039R 33400 M/s Akshay Sales Pvt. Ltd. 2A/65, Ground Floor, Ramesh Nagar, New Delhi-110 015 AAICA6630Q 16700 M/s G.C. Technology (India) Pvt. Ltd. B-348, IIIrd Floor, Hari Nagar, New Delhi. AABCG3647B 73400 M/s Arun Finvest Pvt. Ltd. 50/12, Ashok Nagar, New Delhi-110 018 AABCA3510H 83400 M/s Maestro Mktg. & Advg. Pvt. Ltd. A-4/181, Sector-17, Rohini, Delhi-110085 AACCM0826H 40000 M/s Polo Leasing & Finance Pvt. Ltd. A-24, IInd Floor, Tagore Market, Kirti Nagar, New Delhi-110015 AABCP8345D 23400 M/s Shashi Sales & Mktg. Pvt. Ltd. RZ-41A, Mohan Nagar, Pankha Road, New Delhi AAFCS8352R 83400 M/s Rajkar Electri & Elect (P) Ltd. 5012, Ashok Vihar, New Delhi-110 018 AABCR4897G 70000 M/s Shattarchi Finance & Leasing Ltd. 726, Po....
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....nse furnished and the assessment order reveals that the Assessing Officer after examining the aspect of share application money received by the assessee through the issuance of the questionnaire and notices framed the assessment under Section 143(3) on 07.10.2009. The returned income was accepted and no addition was made on account of the share application money. 8. In CIT vs. Usha International Ltd. (2012) 348 ITR 485 (Delhi) (FB), a full bench of this Court held:- "Re-assessment proceedings will be invalid in case an issue or query is raised and answered by the assessee in original assessment proceedings but thereafter the Assessing Officer does not make any addition in the assessment order. In such situations it should be accepted that the issue was examined but the Assessing Officer did not find any ground or reason to make addition or reject the stand of the assessee. He forms an opinion. The re-assessment will be invalid because the Assessing Officer had formed an opinion in the original assessment, though he had not recorded his reasons." 9. On 27.03.2014, the impugned notice under Section 148 of the Act has been issued. The reasons supplied to the assessee f....
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....rs (P) Ltd. Shop No. 20, Krishna Market, Bawana Road, Pooth Khurd, Delhi 31.03.2007 33400 20 1002000 10 M/s Akshay Sales Pvt. Ltd. 2A/65, Ground Floor, Ramesh Nagar, New Delhi-110 015 31.03.2007 16700 20 501000 10 M/s G.C. Technology (India) Pvt. Ltd. B-348, IIIrd Floor, Hari Nagar, New Delhi. 31.03.2007 73400 20 220000 10 M/s Arun Finvest Pvt. Ltd. 50/12, Ashok Nagar, New Delhi-110 018 31.03.2007 83400 20 2502000 10 M/s Maestro Mktg. & Advg. Pvt. Ltd. A-4/181, Sector-17, Rohini, Delhi-110085 31.03.2007 40000 20 1200000 10 M/s Polo A-24, IInd 31.03.2007 23400 20 7020000 10 Leasing & Finance Pvt. Ltd. Floor, Tagore Market, Kirti Nagar, New Delhi-110015 M/s Shashi Sales & Mktg. Pvt. Ltd. RZ-41A, Mohan Nagar, Pankha Road, New Delhi 31.03.2007 83400 20 2502000 10 M/s Rajkar Electri & Elect (P) Ltd. 5012, Ashok Vihar, New Delhi-110 018 31.03.2007 70000 20 2100000 10 M/s Shattarchi Finance & Leasing Ltd. ....
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....ld in Usha International Ltd. (supra). 11. Therefore, in our view, the present exercise of issuing the notice under Section 148 of the Act would amount to nothing but a change of opinion, which is not permissible. 12. Another reason why the impugned notice under Section 148 and the proceedings consequent thereto have to be set aside is that the pre-condition of there being a failure on part of the assessee to fully and truly disclose all the material particulars necessary for assessment has not been made out. 13. Perusal of the reasons for initiating re-assessment shows that there is not even an allegation that there has been failure on the part of the petitioner/assessee to fully and truly disclose all the material particulars necessary for re-assessment. 14. In Haryana Acrylic Manufacturing P. Ltd. Co. Vs. CIT 2009 (308) ITR 38 (Delhi), this Court held 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. Mere....