TaxTMI 
TaxTMI 
2016 (7) TMI 515
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....on are that petitioner, a company, is engaged in the business of trading in dress material. The petitioner filed its return of income for assessment year 2010-11 on 14.10.2010, declaring total income at Rs. 10,33,540/-, which was processed under section 143(1) of the Act. The case was later on taken up for scrutiny and assessment came to be framed under section 143(3) of the Act whereby the total income of the petitioner was assessed at Rs. 12,06,671/-. Thereafter, impugned notice dated 24.03.2015 came to be issued under section 148 of the Act seeking to reopen the assessment of the petitioner for assessment year 2010-11. In response thereto, the petitioner asked the respondent to furnish the reasons recorded for reopening the assessment, which came to be duly furnished to the petitioner. Pursuant thereto, the petitioner filed its objections to the reasons recorded, which, however, came to be disposed of by a letter dated 24.07.2015. Since certain further points came to the knowledge of the petitioner as regards certain technicalities pertaining to the reopening, further objections came to be raised vide letter dated 12.08.2015. The petitioner also requested for certified copies of....
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....2.2015 furnished its PAN, balance sheet, income tax acknowledgment and income tax returns for assessment years 2011-12 and 2012-13 as well as the copies of the bank statement for financial year 2011-12 showing the transaction with the petitioner and bank book, as desired by the then Assessing Officer. It was submitted that the petitioner in response to the show cause notice dated 19.02.2015 had brought to the notice of the respondent the fact that M/s Glamour Sales Pvt. Ltd. had furnished the requisite details to the respondent by placing on record postal receipt evidencing the fact as to furnishing of information by M/s Glamour Sales Pvt. Ltd. to the respondent. It was submitted that in the light of the reply furnished by M/s Glamour Sales Pvt. Ltd. and the petitioner, no addition was made in assessment year 2012-13 in respect of the share application money received by the petitioner from the said party. However, subsequently by the impugned notice, the assessment of the petitioner is sought to be reopened. It was submitted that in the assessment proceedings under section 143(3) of the Act, the Assessing Officer had looked into the share application money received by the petitione....
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....n the case of Gujarat Power Corporation Ltd. v. Assistant Commissioner of Income Tax, (2013) 350 ITR 266, for the proposition that once the Assessing Officer examines a certain claim of the assessee in the original assessment proceedings, raises queries, receives replies, but thereafter makes no additions or disallowances, without giving reasons, it would not be permissible to reopen the assessment even within four years on the very same grounds. Reliance was also placed upon the decision of this court in the case of Dishman Pharmaceuticals & Chemicals Ltd. v. Deputy Commissioner of Income Tax (OSD) (No.2), (2012) 346 ITR 245 (Guj.), for the proposition that it is settled legal position that if the reopening of assessment fails on account of nonexistence of reasons for such reopening, the revenue cannot either sustain such reopening or bring within the assessment proceedings any other head of escaped income not mentioned in the reasons for reopening. It was, accordingly, urged that the petition deserves to be allowed by setting aside the impugned notice. 6 Opposing the petition, Mr. Sudhir Mehta, learned Senior Standing Counsel for the respondent reiterated the averments made in....
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....tervention by this court. 7 Before adverting to the merits of the rival submissions, it may be germane to refer to the reasons recorded for reopening the assessment for assessment year 2010-11, which read as follows: "In this case, the return of income was filed on 14.10.2010 declaring total income of Rs. 10,33,540/- and the same was assessed under section 143(3) of the I. T. Act, be accepting the same. [2] The assessee has claimed to have received share capital with premium from the following alleged investor company of Kolkatta: Sr. No. Name of the Investor Company No. of Shares Share Capital @ Rs. 10 Share Capital including share premium 1 Glamour Sales Pvt. Ltd. 4, Fairlie Place Mazzanine Floor Kolkatta 12500 1,25,000 12,50,000 [3] During the assessment proceedings for A.Y. 2012- 13, the materials gathered on record are verified and on analyzing the materials available with the undersigned, it is unearthed that the above investor company is not existing at the given address and therefore, identity and creditworthiness of that company and genuineness of the transaction could not be established. Therefore, the share capi....
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.... given/received during the said period, details of its income tax assessment, that is, PAN number, Ward/ Circle where it is assessed. A request was also made to furnish copies of total income, trading account and balance sheet for assessment year 2010- 11. All the above details came to be furnished by M/s Glamour Sales Pvt. Ltd. and after considering such details, the Assessing Officer, by an order dated 26.03.2013, framed assessment for assessment year 2010-11 under section 143(3) of the Act assessing the total income of the petitioner at Rs. 12,06,671/- without making any addition in respect of the share capital money received from M/s Glamour Sales Pvt. Ltd.. Now, the Assessing Officer seeks to reopen the assessment on the ground that during the course of assessment proceedings of assessment year 2012-13, it is found that M/s Glamour Sales Pvt. Ltd. is not found at the given address and therefore, income to the tune of Rs. 12,50,000/- has escaped assessment. 11 Thus, it is evident that at the time of framing assessment under section 143(3) of the Act, the Assessing Officer had examined this very issue and had called for all details from M/s Glamour Sales Pvt. Ltd. under se....
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....sessment even within four years on the very same grounds. It is evident that the Assessing Officer has, therefore, formed an opinion on the issue in question though not reflected in the assessment order passed under section 143(3) of the Act. Thus, reopening of the assessment to examine the very same claim is, therefore, clearly based upon a change of opinion. The assumption of jurisdiction on the part of the Assessing Officer by issuance of notice under section 148 of the Act on a mere change of opinion is, therefore, clearly without jurisdiction. The impugned notice under section 148 of the Act, therefore, cannot be sustained. 12 It may be also noted that while in the reasons recorded, it has been stated that M/s Glamour Sales Pvt. Ltd. is not existing at the given address and therefore, the identity and creditworthiness and genuineness of the transaction could not be established, whereas in the order disposing of the objections, the Assessing Officer has travelled much further and observed that M/s Glamour Sales Pvt. Ltd. of Kolkatta is a fictitious entity just created to give accommodation entries to beneficiaries on commission basis; that the above investor company is not a....