TaxTMI 
TaxTMI 
2016 (12) TMI 1281
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....iled the return of income for the Assessment Year 2011-12. After filing of the return of income, the petitioner - assessee was served with the notice under Section 143(2) of the Income Tax Act. In the scrutiny assessment vide notice dated 07/03/2014 the petitioner - assessee was called upon to furnish necessary information /details, more particularly, with respect to the sale transaction of shares of Unitech International Ltd. The petitioner - assessee replied to the same vide reply dated 08/01/2014 as well as 18/03/2014. It was the case on behalf of the petitioner - assessee that the aforesaid shares were acquired by him in the year 2007-08 and were subsequently transferred in his name, which were demated. It was also the case on behalf of the petitioner - assessee that the shares in question were in fact shown in his books of accounts in the earlier Assessment Years, more particularly, Assessment Year 2008-09 and 2009- 10. Considering the material on record, the Assessing Officer accepted the claim of the petitioner - assessee of long term capital gains of Rs. 287,81,495/- as exempted under the provisions of the Income Tax Act. Thereafter, the petitioner was served with the notic....
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....11 declaring total income of 68,84,660. The same was assessed under Section 143(3) and income was assessed at 69,01,800 vide order dated 28/03/2014. Audit Scrutiny of P & L account, balance sheet, computation of income details submitted in respect of exempted income claimed under Section 10(38) of the Act revealed that assessee has claimed exempted long term capital gain of Rs. 2,87,81,495/- under Section 10(38) of the Act on account of sale of 3,10,000 share of United International Ltd as under; Sr. No. Particulars Quantity Sale Value Sale date Cost Value Cost date Gain 1 United International Ltd. 135000 12570335 18/03/2011 135000 06/02/07 12434835 2 United International Ltd. 124000 11518740 22/03/2011 124000 06/02/07 11394240 3 United International Ltd. 24000 2464560 18/02/2011 24000 06/02/07 2440560 4 United International Ltd. 26000 2537860 23/02/2011 26000 06/02/07 2511860 5 United International Ltd. 135000 12570335 18/03/2011 135000 06/02/07 12434835 6 United International Ltd. 124000 11518740 22/03/2011 124000 06/02/07 11384240 310000 29091495 310000 ....
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....s on 22/02/2011 and 2,60,000 shares on 18/03/2011 leaving no balance in that account. All these offtake were effected as delivery by off market trade. However, on verification of records the date of acquisition of shares on 02/06/2007 should not be accepted due to following reasons; 1. The assessee could not produce the purchase bill /consideration receipt and transfer intimation from the company. 2. The payment of claimed purchase was not by cheque but in cash, hence evidence of purchase is not traceable. 3. The date on which the claimed purchase of shares is shown by assessee is not acceptable as listing of shares was suspended as evident from historic data of the company of BSE. 4. The last traded price recorded on BSE was Rs. 10.50 per share on 28/11/2000 whereas the assessee has claimed purchase of shares @ 1 per share. 5. D-mat account maintained by assessee showed that there was no opening balance in that account and d-mat share was accepted by depository on 02/12/2010 for 90,000 shares and on 16/03/2011 for 2,20,000 shares. 6. The assessee has d-mated shares numbering to 3,10,000 which were sold by off-market deal on later date. In view of reasons mentioned ab....
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.... of non deduction of tax as per provisions of Section 40(a)(ia) of the Act when there is no claim of Interest Expenses of Rs. 90,00,000/-. However, on verification of record as per provisions of Section 40(a)(ia) any interest payable to a person in excess of Rs. 5000/- by an individual who was liable for tax audit in the immediately preceding assessment year, on which tax is deductible at source under Section 194A, failure to do so make entire payment of Rs. 90,00,000/- disallowable. Failure to do so resulted in underassessment of income of Rs. 90,00,000/-. In view of the above, I have reason to believe that there is escapement of income of Rs. 2,87,81,495/- for issue no.1 and escapement of income of Rs. 90,00,000/- for issue no.2. Therefore, proceedings of Section 147/148 of the I.T. Act have been initiated." 5. The petitioner - assessee submitted the objections against the reasons recorded for reopening the assessment, which have been disposed of by the Assessing Officer not agreeing with the objections raised by the petitioner - assessee. Hence, the petitioner - assessee has preferred the present Special Civil Application under Article 226 of the Constitution of India chal....
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....n the basis of the subsequent inquiry carried out by the Assessing Officer and as thereafter on the basis of the material on record collected during subsequent inquiry and having been satisfied that the income has escaped the assessment and thereafter when the assessment has been reopened, it is requested to dismiss the present petition. 8. Heard the learned advocates appearing on behalf of the respective parties at length. The reasons to reopen the scrutiny assessment for the Assessment Year 2011-12 are reproduced hereinabove. From the assessment order passed by the Assessing Officer, which was passed after scrutiny assessment and which was passed after calling for the relevant materials from the petitioner - assessee, the Assessing Officer considering the purchase of shares of Unitech International Ltd. purchased in the year 2007 granted the exemption accordingly, and therefore, the subsequent reopening would tantamount to change of opinion and as held by the Hon'ble Supreme Court and this Court in catena of decisions mere on change of opinion the reopening of the assessment is not permissible. At this stage, it is required to be noted that as such there is no tangible material ....