AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (6) TMI 1066
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....stablish the genuineness of transactions and creditworthiness of creditors in respect of credits from M/s Legend Infrastructure Ltd., M/s. Placid Buildwell Pvt. Ltd. and M/s. S.S. Fincap Pvt. Ltd. on account of share capital /share premium during the year under consideration." C. O. No. 70/DEL/2021 :- 3. The assessee has raised the following substantive grounds of appeal:- "1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad, both in the eye of law and on the facts. 2. On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law, in upholding the reopening of assessment done by the AO, despite the fact that the initiation of the proceedings under Section 147, read with Section 148 of the Act is bad and liable to be quashed, as the conditions and procedures prescribed under the statute have not been satisfied and complied with. 3. On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in confirming the reopening despite the fact that the same has been made by the AO without independent application of mind. 4. On the fa....
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....nst the assessment order dated 30/12/2016, the assessee preferred an appeal before the CIT(A) and the CIT(A) vide order dated 27/07/2018 held that 'the findings given by the A.O. in the assessment order that the share application money received by the appellant were accommodation entries and appellant had invested its own money was not based on any material fact available on record. Hence, the findings given by the A.O. is not justified'. Accordingly, the Ld. CIT(A) directed the A.O. to delete the addition made on account of capital infused. 6. Aggrieved by the order of the CIT(A) in deleting the addition, the Department filed an appeal in ITA No. 6300/Del/2018 on the grounds mentioned above and the Assessee filed C.O No. 70/Del/2021 challenging the reopening of assessment done by the A.O. u/s 147 read with Section 148 of the Act. 7. Since the assessee raised legal issue in the C.O. regarding the reopening of assessment u/s 147 read with Section 147 of the Act, we deem it fit to decide the Cross Objection of the assessee before the disposing the appeal filed by the revenue. 8. Ld. Counsel for the Assessee addressing argument on the C.O., submitted that the reopening of the asses....
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....ee company as on 01.04.2008 and 31.03.2009. 4. Complete details of registered office, head office, branch office and any other place mentioned by the company. 5. Copy of assessment order of last three years. 6. Details of party-wise purchases and sales with their addresses, PAN and Ward/Circle. 7. Name and complete communication address of the parties from/to whom loan and advances above Rs. 50,000/- was received/given during the previous year with the terms/conditions. Discharge onus in case of loans/advances received as per sec. 68 of the I.T. Act- notes on its usage. Explain sources/purpose of giving loan as advance. 8. Details of expenses debited to P&L A/c with supporting evidence. 9. Details of expenses covered u/s 43B with date of payment and supporting evidence. 10. Details of additions to fixed assets along with supporting documents and when the same are put to use. 11. Details along with complete address and confirmation of parties/persons from whom unsecured loan was received. 12. In case of increase in share capital, share application money, share premium etc. please furnish:- (a) Confirmations with PAN & Address (b) Copy of ITR & Balance Sheet (....
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....ails related to bank with the copy of bank statements has already been submitted on 15.03.2011. However complete list of bank accounts maintained by the company is enclosed and marked as Annexure-8. 14. Details of sundry creditors as on 31.03.2009 along with the complete address and amount outstanding is enclosed and marked as Annexure-9 15. Not applicable being not either trading company or manufacturing company. 16. Details of sundry debtors as on 31.03.2009 along with the complete address and amount outstanding is enclosed and marked as Annexure-10 hope you will find our reply in order. Thanking You, Yours faithfully, 13. Based on the enquiry conducted by the Assessing Officer, assessment order u/s 143(3) of the Act was passed in the case of the assessee on 30.12.2011 assessing total income of Rs. 5,60,94,110/- against the returned income of Rs. 5,55,70,290/- by making addition of Rs. 5,23,822/- u/s 14A of the Act. 14. It is found from the record that during the survey operation carried on 21.10.2013 at the business premises of the assessee company, no incriminating material was found, neither there was any discrepancy in the books of the assessee was noted by the surv....
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.... evidences clearly show that the assessee made a true and full disclosure of facts regarding the sale of the assets and depreciation thereon which were very much part of the assessment records and the same had been examined by the AO in the original assessment proceedings- Neither the AO nor the Departmental Representative pointed out any discrepancy in the above mentioned information submitted by the assessee to the Revenue authorities nor they brought any evidence on record to show that the said information in the assessment order Assessment cannot be reopened on the basis of mere change of opinion on the same set of facts on record - In this case, there was true and full disclosure of facts and no new information came to the knowledge of the A.O. Therefore, the reopening of - assessment was invalid." 17. Further, the Hon'ble Supreme Court in the case of CIT Vs. Kelvinator of India Ltd. (2010) 320 ITR 561 S.C, while deciding the question whether the concept of "change of opinion" stands obliterated with effect from 1st April, 1989, i.e., after substitution of Section 147 of the Income Tax Act, 1961 by Direct Tax Laws (Amendment) Act, 1987 held as under:- "On going throug....
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.... reintroduce the expression `reason to believe' in Section 147. --A number of representations were received against the omission of the words `reason to believe' from Section 147 and their substitution by the `opinion' of the Assessing Officer. It was pointed out that the meaning of the expression, `reason to believe' had been explained in a number of court rulings in the past and was well settled and its omission from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended section 147 to reintroduce the expression `has reason to believe' in place of the words `for reasons to be recorded by him in writing, is of the opinion'. Other provisions of the new section 147, however, remain the same." For the afore-stated reasons, we see no merit in these civil appeals filed by the Department, hence, dismissed with no order as to costs." 18. The Hon'ble High Court of Delhi at New Delhi in the case of D.T & T.D. C. Ltd. Vs. ACIT 232 CTR 260 (Del) held as under:- "9. We may also point out that insofar as the assessment year 1997- 98 and 19....
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....f the said Act and the proceedings pursuant thereto stand quashed. We make it clear that in this writ petition we have considered the case only from the stand point of jurisdiction and not on the merits of the issues with regard to taxability of the amount transferred to TIUF." 19. The Jurisdictional High Court in the case of CIT-VI, New Delhi Vs. Usha International Ltd. (2012) 348 ITR 485 (Delhi High Court) "Now we examine the claim of the assessee regarding this contention that reopening is on mere change of opinion. Reliance has been placed on a judgment of Hon'ble Delhi High Court rendered in the case of Usha International Ltd. (supra). Para 13 to 17 of this judgment are relevant for the dispute in present case and the same are reproduced below for the sake of ready reference:- "13. It is, therefore, clear from the aforesaid position that : (1) Reassessment proceedings can be validly initiated in case return of income is processed under section 143(1) and no scrutiny assessment is undertaken. In such cases there is no change of opinion. (2) Reassessment proceedings will be invalid in case the assessment order itself records that the issue was raised and is decided ....