TaxTMI 
TaxTMI 
2021 (7) TMI 2
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....007-08 & 2008-09 respectively. 2. First we will take up ITA No. 1675/M/2020 A.Y. 2008-09. 3. The first issue raised by the assessee is a jurisdictional issue challenging the upholding of assessment by Ld. CIT (A) as framed by the AO under section 148 of the Act. 4. The facts in brief are that the assessee filed the return of income on 21.01.2010 declaring nil income. Thereafter, the case of the assessee was reopened under section 147 by issuing notice under section 148 dated 30.03.2015 which was duly served upon the assessee. The assessee complied with the said notice by submitting that the return filed originally on 21.01.2010 may kindly be treated as return filed in compliance to notice under section 148. The reason recorded under sect....
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....eason to believe that income of Rs. 12,92,000/- chargeable to tax has escaped assessment by the reasons of failure on the part of the Assessee to disclose fully and truly and notice u/s. 148 of the Income-Tax Act is to be issued in the aforesaid case for A.Y. 2008-09 accordingly." 5. The assessee also filed objections to reopening of assessment which was disposed of vide order dated 10.12.2015. Thereafter, the AO during the course of assessment proceedings called for various information and detail from the assessee. As regards the issue of share capital to various parties of 3,23,000 equity shares of face value Rs. 10 each at a premium of Rs. 40 each thereby raising a total capital of Rs. 1,61,50,000/-. The AO observed from the balance she....
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....e reasons recorded submitted that year under consideration is A.Y. 2008-09 and the issue of shares at fair market value has only been introduced on the statutory books in section 56(2)(viib) in the Finance Act, 2012 w.e.f. 01.04.2013 and is accordingly applicable from A.Y. 2013-14 and is accordingly applicable from A.Y. 2013-14. The Ld. A.R. therefore submitted that the case of the assessee can not be reopened on the ground that shares were issued at a premium which is more than the intrinsic value of the shares. In defence of his argument, the Ld. A.R. relied on the following decisions: "1. Malchand Dindayal Salts Pvt. Ltd. (ITA No. 6908/Mum/2018 and 7097/Mum/2018) 2. Balbir Ispat Pvt. Ltd. (ITA No. 6953/Mum/2016) 3. Khubchandani Hea....
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....- "6. On appraisal of the above mentioned reasons, we are of the view that the AO was not justified to reopen the case of the assessee in view of the provisions u/s. 147/148 of the Act. No tangible material is on record for reopening the case on the basis of which the AO formed reason to belief that the income has escaped assessment. Mere mentioning the facts as shown by the assessee about the shares premium of Rs. 2,12,66,700/- nowhere gives the plausible reason to the AO to reopen the case u/s. 147/148 of the Act. Nothing is on record to which it can be assumed that under which circumstances the income of the assessee has become escaped assessment. The other important thing which came into notice that on the basis of similar facts and c....
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....he nature of the share application received (the intrinsic value of the share in comparison to the excess premium received) is not substantiated." We also find from the above that the AO stated that income in the grab of share application money received in this case has escaped assessment but he could not point out on what basis/material does he belief that the share capital is not genuine. In the similar circumstances, Hon'ble Bombay High Court in the case of Khubchandani Healthparks Pvt. Ltd. (supra) held that regular Return of income was assessed by Intimation under Section 143(1) of the Act and no scrutiny assessment was done. In the above view, to ascertain the nature and the justification for charging share premium, the Assessing ....