TaxTMI 
TaxTMI 
2024 (5) TMI 1707
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....urned income. Subsequently Information was received from the ADIT, Unit-4 (3), New Delhi vide F. No. ADIT (Inv.) / Unit-4 (3)./2017-18/59 dated 12.03.2018 that the assessee Sh. Rajesh Goyal had taken the benefit of Long Term Capital Gain (exempted income) of Rs.14,97,39,733/- on account of sale of equity shares of M/s. Shree Securities Limited. As per the Kolkata Wing of Investigation, the Shree Securities Limited was an accommodation entry provider company. Considering all these material/ information in totality as was enough credible material on record the AO record 'reason to believe' u/s 148 of the Act, that at least an amount of Rs. 14,97,38,733/- was not disclosed in his income by the assessee during the F.Y. 2010-11 relevant to A.Y.2011-12. Hence, it was found to be fit case for initiating proceeding u/s. 147/148 of the Act. 3. During the re-assessment, examining the modus operandi of the sham transactions involving sale of equity shares of M/s. Shree Securities Limited, as done by Investigation Wing at Kolkata assessee was show caused for which the assessee had filed response as under :- "In this regard we would like to submit that the assessee has earned and cl....
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....dia through proper banking channel during the financial year 2008-09. It is further submitted that the assessee has sold the said shares on recognized stock exchange through his broker Le. M/s Response Securities Private Limited during the financial year 2010-11 and also paid security transaction tax on sale of M/s. Shree Securities Limited reflecting security transaction tax paid on sale of shares has already been submitted vide objection filed on 10/12/2018. It is further submitted that the assessment proceedings under section 143(3) of the Income Tax Act, 1961 has been also completed in the case of the assessee for the assessment year under vide order dated 26/02/2014. It is further submitted that the assesses has already submitted above mentioned & other details and documents in respect of sale & purchase of shares during the course of assessment proceedings under section 143(3) of the Income Tax Al 1961 vide reply dated 28/01/2014. Copy of reply filed during the course of assessment proceedings has already been submitted vide objection filed on 10/12/2018. It is further submitted that the assessment proceedings under section 143(3) of the Income Tax ....
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....d mechanical manner without appreciating that (i) jurisdiction to reopen case is barred by limitation as the case of appellant was already assessed u/s 143(3) and there is no failure on part of appellant to disclose fully and truly all material fact necessary for its assessment. (ii) reopening of the assessment proceedings is merely on the basis of "change of opinion" on the same subject matter which have already been assessed u/s 143(3) (iii) reopening of the assessment proceedings is merely on the basis of doubt suspicion conjecture and surmises without there being any cogent and definite material on record (iv) reopening of the assessment proceedings is merely on the basis of information received from ADIT, Unit-4(3), New Delhi and DDIT (Inv.)-1, Faridabad without making any independent enquiry and judicious application of mind (v) reopening of the assessment proceedings is made without providing the copies of information relied upon by the Ld. AO for its rebuttal even though specifically requested by the appellant. 5. That on the facts and circumstances of the case, the Ld. CIT(A) has erred in law in disposing of appeal with....
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....on Wing. The Ld. Senior Counsel submitted that approval of PCIT was also mechanical. 5.1 The Ld. Senior Counsel submitted that as the opening was beyond four years the proviso to section 147 was applicable and the reasons should have disclosed as to how assessee had failed to make full and true disclosure of material facts. Ld. Senior Counsel submitted that during the assessment proceedings, which have culminated in the assessment order dated 26.02.2014, the assessee was made to give details of the transactions of capital gains by notice dated 18.09.2012 and by submissions dated 15.01.2014, 28.01.2014 and 26.02.2014 details were furnished to the AO. Thus, there was no failure on the part of the assessee to give a true disclosure of the material facts. 6. The Ld. DR however, relied the findings of Ld. Tax Authority below. 7. Appreciating the material before us and the contentions as raised we initiate the discussion by first taking up ground no. 4 and 5, which question the very exercise of jurisdiction u/s 147 of the Act. As we go through the copy of the reasons recorded for reopening made available at page -240 to 243 of the paper book. It comes up that the AO has merely r....
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....terial facts necessary for assessment leading to escapement of income. In this context the AO by observing that assessee has not fully and truly disclosed material facts, has observed that; "it is true that the assessee has filed a copy of annual report and audited P&L A/c and balance sheet alongwith return of income where various information / material were discussed." 12. Now, as a matter of fact during assessment concluded on 26.02.2014, the assessee has categorically stated that assessee does not maintain books of accounts and as such the same were never filed. So there was no question to examine them and conclude that there was there was failure to fully and truly disclose material facts by the assessee. In this context itself it can be observed that the AO while recording the reasons has mentioned that the assessee has failed to provide details of STT, DMAT and purchase of shares while infact these details were furnished by the assessee during the original assessment proceedings as established by the detailed replies filed by the assessee in response to notice u/s. 143 (2). 13. The aforesaid discussion makes us reach to only one conclusion that at the time of r....