TaxTMI 
TaxTMI 
2023 (12) TMI 283
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....016-2017. The aforesaid Assessment Order was preceded a notice under Section 142(1) of the Income Tax Act, 1961 on the same issue which is the subject matter of the Impugned Notice and the Impugned Order under Section 148A(b)(d) of the Income Tax Act, 1961. 4. The petitioner had filed a detailed reply in response to Notice dated 19.11.2018 issued under Section 142(1) of the Income Tax Act, 1961 on 26.11.2018. Thereafter, the aforesaid Assessment Order dated 27.11.2018 came to be passed under Section 143(3) of the Income Tax Act 1961 for the Assessment Year 2016-2017. It is therefore submitted that invocation of Section 148A of the Income Tax Act 1961 to reopen the completed Assessment for the Assessment year 2016-2017 was without any merits. 5. The learned counsel for the petitioner submits that the petitioner had offered the income, as "income from trading" and claimed exemption on capital gains under Section 47(xiiib) of the Income Tax Act, 1961. It is submitted that the petitioner did not have any business income, although, the petitioner was incorporated in the year 2006, as company for carrying business of buying, selling, marketing, supplying, importing, exporting, trading,....
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....egations in the notice dated 19.05.2022 was on account of transfer of preference shares held by Ms.Nina B Kothari to M/s. BHK Foundation (Discretionary Trust). It was not camouflaged to avail to exemption under Section 47(xiiib) of the Income Tax Act, 1961. It is further submitted that the petitioner had not circumvented any of the provisions of the Income Tax Act, 1961. 11. It is therefore submitted that the notice alleges violation of Section 47(xiiib) of the Income Tax Act, 1961 with reference to proviso (e) and (ea) were not satisfied and therefore the transaction was not chargeable to 'capital gains' under Section 45 of the Income Tax Act. It is therefore submitted that while passing the impugned order under Section 148A(d) of the Income Tax Act, 1961 a reference has been made to Section 47(xiv) of the Income Tax Act, 1961 which was not at all applicable to the facts of the case. 12. The learned counsel for the petitioner has placed reliance on the following decisions which held as under:- (1) CIT Vs. Kelvinator of India Ltd reported in [2010] 320 ITR 561 (SC); (2) ITO Vs. Techspan India Pvt Ltd reported in [2018] 302 CTR 74 (SC); (3) DCIT Vs. Fi....
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....eputy/Assistant Commissioner of Income-tax Vs. Financial Software and Systems Pvt Ltd reported in [2022] 145 taxmann.com 37 (SC) and Financial Software and Systems (P) Ltd Vs. Deputy/Assistant Commissioner of Income Tax reported in [2022] 145 taxmann.com 36 (Mad) rendered in the context of re-opening of the Assessment. 14. It is submitted that the aforesaid decision of the Division Bench of this Court was upheld by the Hon'ble Supreme Court in its Order dated 22.07.2022 in the case of Deputy/Assistant Commissioner of Income Tax vs Financial Software and Systems (P) Ltd reported in [2022] 145 taxmann.com 37 (SC). 15. The learned Counsel for the petitioner would submit that a recent decision of this Court rendered in Mobis India Ltd Vs. DCIT [2023] 450 ITR 60 (Mad HC), has reiterated the position taken by the Hon'ble Supreme Court. A reference is made to Para 21 from the said decision which reads as under:- "21. Apparently, it is in view of the above reason that the Hon'ble Supreme Court way back in 1979, in Indian and Eastern News Paper Society, put the issue beyond any pale of doubt by holding that the opinion on law rendered by an audit party cannot be the basis fo....
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....ed maturity plan in Rs. 3,15,00,000/-. There is an investment in bonds and debentures to the tune of Rs. 3,03,64,57,137/-. 20. That apart, it is further submitted that the said companies were dealing with shares, mutual funds, other investments and advancing of loans to various companies in huge amounts and the business activities are done in a systematic way as detailed below:- "The revenue earned as on 31.03.2015 is Dividend income on mutual funds Rs.6,77,81,469/- Dividend income on shares of Rs.3,38,23,310/- net gain on sale of shares Rs.2,51,28,415/- net gain on sale of mutual funds Rs.97,71,721/- net gain on sale of other investments Rs.22,41,286/- interest on tax free bonds Rs.44,47,429/- distribution income - urban infra Rs.39,28,437/- other interest income Rs.55,35,892/- Miscellaneous Income Rs.3,683/- Total income- Rs.15,26,34,643/-" 21. It is further submitted that in the above facts show gross receipts of the petitioner's company as on 31.03.2015 was much more than Rs. 60,00,000/- mentioned in Section 47(xiiib)(ea) of the Income Tax Act. The income was assessable under the head income from business and the total sales, turnover or gross receipt....
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....he Assessment if at all based on the above information would be only in terms of the above audit objections which was impermissible as per the decisions of the Hon'ble Supreme Court. 28. The learned counsel for the petitioner would further submit that Assessment under Section 153 of the Income Tax Act has to be as per the time limit and therefore the notice that was issued has culminated in the passing of the Impugned Order in a hurried manner. 29. On the other hand, the learned Senior Standing Counsel for the respondents would draw attention to Section 153(6)(i). It is therefore submitted that the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Ashish Agarwal reported in [2022] SCC online SC 543 rendered on 04.05.2022 the Assessment had completed within a period of twelve months from the month in which the orders are received or passed by this Court. 30. I have considered the arguments advanced by counsel for the petitioner and the learned counsel for the respondent. There is no dispute that the notice that were issued were under the old regime. 31. However, the Hon'ble Supreme Court in Union of India and others versus Ashish Agarwal rendere....