TaxTMI 
TaxTMI 
2021 (8) TMI 419
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....New Delhi is against law and facts on the file in as much as he was not justified to uphold the action of the Learned Income Tax Officer, Ward -11(4), New Delhi in adding back a sum of Rs. 40,00,000/- as share capital, Rs. 19,60,00,000/- as share premium and Rs. 4,20,00,000/- as share application money received (aggregating to Rs. 24,20,00,000/-) by resorting to the provisions of Section 68 of the Act and holding that the onus as cast upon the Appellant Company by the said Section had not been discharged. 3. That the order dated 02-01-2018 passed u/s. 250 of the Act by the Learned Commissioner of Income-Tax (Appeals) -35 New Delhi is against law and facts on the file in as much as he was not justified to uphold the action of the Learned Income Tax Officer, Ward -11(4), New Delhi in adding back a sum of Rs. 48,40,000/- on the ground that commission @ 2% has allegedly been paid by the Appellant Company for procuring the accommodation entries by treating the same as being undisclosed sources." 3. The representatives of both the sides were heard at length. Case records carefully perused and with the assistance of the ld. Counsel, we have considered the documentary evidences....
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.... 03.09.2009. Shree Hari Suppliers - PAN: BCAPS2941F, opened an account in DCB Bank in 10th May, 2006 Gariahat Branch, Kolkata. In this account there was direct cash deposit of huge amount totaling around 82.93 Crore in 2008 to 03.09.2009. Karuna Securities PAN - BBXPS5166C opened an account in DCB Bank in 26 March, 2009 in Gariahat Branch, Kolkata. In this account amount totaling around x 143 Cr. High value transfer from two proprietors, Mahendra Suppliers, Ambika Udyog and total amount transfer to S S Securities through RTGS. Akshay Traders - PAN: ANBPP1358A opened an account in DCB Bank in 20 April, 2009 Kalbadevi Branch, Mumbai. In this account amount deposit around 26 Crore and total transfer to Karuna Securities, Durga Udyog, Shree Hari Suppliers, Karuna Securities, Akshay Traders transfer the amount to Ganpati Securities, S S Securities around x 207 Crore and X 152 Crore respectively. Ganpati Securities PAN: BBXPS5166C and S S Securities PAN: BFSPS6626A transfer this amount to fourth layer companies. Mainly S S Securities transfer the high value fund to beneficiaries companies. Fourth layer companies transfer the fund to beneficiar....
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.... entry in the garb of share application/share premium or sale/purchase transactions. Further on perusal of return for A.Y. 2009-10 in the case of M/s. Golden Job Finder Pvt. Ltd., the assessee has shown Authorised Capital at Rs. 5,50,00,000/-, Issued/Subscribed and Paid up Capital at Rs. 5,33,50,000/-, Share Application Money at Rs. 4,20,00,000/- and Securities Premium Account at Rs. 26,39,50,000/-. Apart from the assessee has shown Long Term Investments totaling to Rs. 36,09,04,095/-. From the facts given in the report of the DDIT and details from the balance sheet, I, therefore have reasons to believe that income to the extent of Rs. 95,00,000/- (as per above information) has escaped assessment in this case of M/s. Golden Job Finder Pvt. Ltd. for the A.Y 2009-10 within the meaning of Section 147/148 of Income-tax Act, 1961. 4. Since more than 4 years of the relevant years have passed and the information available amount to non disclosure of material facts pertaining to such transactions which has not been disclosed by the assessee in its return for A.Y. 2009-10. Thus, specific condition for reopening is hereby fulfilled in the instant case as assessee has failed....
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....ssess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequently in the course of the proceedings under this section, notwithstanding that the reasons for such issue have not been included in the reasons recorded under sub-section (2) of section 148." 9. This insertion of Explanation 3 to Section 147 of the Act has been examined and interpreted by the Hon'ble High Court of Bombay in the case of CIT Vs. Jet Airways [I] Ltd. 331 ITR 236. The relevant part of the judgment is extracted as under: "5. The condition precedent to the exercise of the jurisdiction under section 147 is the formation of a reason to believe by the Assessing Officer that any income chargeable to tax has escaped assessment. Upon the formation or a reason to believe, the Assessing Officer, before making the assessment, reassessment or recomputation under section 147 has to serve on the assessee a notice requiring him to furnish a return of his income. Upon the formation of the reason to believe that income chargeable to tax has escaped assessment, the Assessing Officer is empowered to assess or reassess such income "and also" any ot....
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....ncore Cements Ltd. v. CIT [2008] 305 ITR 1701, that upon the issuance of a notice under section 148(2), when proceedings were initiated by the Assessing Officer on issues in respect of which he had formed a reason to believe that income had escaped assessment, it was not open to the Assessing Officer to carry out an assessment, or reassessment in respect of other issues which were totally unconnected with the proceedings that were already initiated and which came to his knowledge during the course of the proceedings. The Division Bench held that in respect of an issue which is totally unconnected to the basis on which the Assessing Officer formed a reason to believe that income escaped assessment and issued a notice under section 148, it was open to him to issue a fresh notice by following sub-section (2) of section 148 with regard to the escaped income which came to his knowledge during the course of the proceedings. The Kerala High Court held as follows: "...The Assessing Officer gets jurisdiction under section 148 to assess or reassess the income which has escaped assessment only after sub-section (2) of section 148 is complied with. The question is whether sub-section ....
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....r section 148(2). 9. The effect of section 147 as it now stands after the amendment of 2009 can, therefore, be summarised as follows : (i) The Assessing Officer must have reason to believe that any income chargeable to tax has escaped assessment for any assessment year; (ii) Upon the formation of that belief and before he proceeds to make an assessment, reassessment or recomputation, the Assessing Officer has to serve on the assessee a notice under sub-section (1) of section 148; (iii) The Assessing Officer may assess or reassess such income, which he has reason to believe, has escaped assessment and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under the section and (iv) Though the notice under section 148(2) does not include a particular issue with respect to which income has escaped assessment, he may nonetheless, assess or reassess the income in respect of any issue which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under the section. 10. XXX 11. The rival submissions which have been urged on behalf o....