TaxTMI 
TaxTMI 
2022 (3) TMI 828
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.... from whom huge share premium received by it. Enquiry report of the Inspector of Income tax also revealed that no such entity ever existed on the given address." 3. The cross objections of the assessee read as under: Ground No. Grounds of Cross Objection Tax Effect 1 That the learned Commissioner of Income Tax (Appeals) has grossly erred both in law and on facts in upholding the initiation of proceedings under section 147 of the Act and, completion of assessment under section 147/143(3) of the Act without appreciating that the same were without jurisdiction and hence deserved to be quashed as such. Jurisdictional Ground 11 That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that there was no specific relevant, reliable and tangible material on record to form a "reason to believe" that income of the appellant had escaped assessment and in view thereof the proceedings initiated are illegal, untenable and therefore unsustainable. -do- 1.2 That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that section 153C of the Act was applicable to the facts of the case of the appellant company and not ....
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....essment was completed on 24.12.2009 and completed assessment was reopened vide notice dated 12.06.2014 which makes it clear that the reopening was done after four years from the end of the relevant A.Y. Therefore, proviso to section 147 of the act squarely applies. 9. Before proceeding further, let us consider the proceedings which took place during the original proceedings. Relevant order sheet entries read as under: "20.10.2009: Present Sh. Madhu Mohan CA, he has been further asked to file complete details, evidences and genuineness in r. o. fresh Share capital, Share application money and unsecured loan, - confirmation of secured loans - complete details of other liabilities - detail of construction const incurred during the year - basis of valuation of closing stock 18.11.2009-. Present Sh. Madhu Mohan CA. he has filed letter. He has been reminded that primary onus regarding the share application money/share capital/premium received has not been discharged and once again asked to prove the genuineness and also file a chart of all such person and evidences as filed by the assessee till date. 2. Similarly once agai....
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.... A perusal of the aforesaid order sheet entries clearly show that during the course of original assessment proceedings, the assessee has furnished complete details alongwith evidences in respect of share capital, share application money and unsecured loans. At the behest of the AO, three of the share applicants were produced, namely, Shukal Kapoor, Ms Vinie Kapoor and representatives of M/s Tirupati Venkateswara Colonisers Private Limited. These persons were produced on 21.09.2009 and 22.0 92009 and their statements were recorded by the Assessing Officer who found all the details and enquiries satisfactory. 11. Proviso to section 147 reads as under: "Provided that where an assessment under sub- section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub- section (1) of section 142 or section 148 or to disclose fu....
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....cessary for assessment. 16. In our considered opinion, this is sine qua non for assuming jurisdiction under section 147 of the Act in a case falling under Proviso to Section 147 of the Act. The Hon'ble Jurisdictional High Court of Delhi in the case of Usha International Ltd 348 ITR 485 has held that where there was no failure on the part of the assessee to disclose truly and fully all material facts necessary for his assessment, then provisions of Section 147 of the Act cannot be invoked even before expiry of four years from the end of the relevant Assessment Year. The relevant findings of the Hon'ble High Court read as under: "The first proviso to section 147 can be resorted to only if the assessee has not discharged the duty. Where the assessee has discharged his duty and the assessment completed under section 143(3) is reopened within the period of 4 years from the end of the assessment year, the assessing officer has to either show that the disclosure is not full and true or he has come into possession of some "tangible material4', to borrow with respect the expression used by the supreme courl in Kelvinator (supra), to come to the conclusion that there is escap....
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....commodation entry providers to the assessee. 21. In fact, other than the report of the INV Wing, there is not even a reference to any document on the basis of which the AO was satisfied that the assessee company has taken accommodation entry. As mentioned elsewhere, the names of the 99 share applicants, as mentioned in the assessment order, do not find any place in the list of accommodation entry providers. 22. We further find that while recording the reasons for reopening the assessment, the AO did not even care to look into the assessment records. Had the AO seen the assessment record, then he would have found that during the year under consideration, the assessee had issued share capital to the tune of Rs. 16.88 crores including share premium to various parties and has also received sufficient unsecured loans amounting to Rs. 10.63 crores from various parties and details of share application money and unsecured loans were already submitted during the course of assessment proceedings. In our considered view, the case was reopened only on the directions of the DIT, INV - II, New Delhi and no reason to believe was formed for reopening of the assessment. 23. For the sake of....