2012 (10) TMI 52 - AT - Income Tax

Validity of reopening of assessment u/s 147 - buy back of shares at low price in AY 05-06, originally issued on premium - addition made u/s 68 - AY 04-05 - Held that - There was sufficient reason for reopening of assessment, in sofar as original assessment completed u/s 143(3) was reopened within a period of three years. From the record, we found that statement of Director of assessee company was recorded, wherein it was stated that shares of Rs. 10/- which was issued at a premium of Rs. 90/- were purchased back by the Directors at a face value of Rs. 10/- only. This statement is valid information for the purpose of reason to believe that there is escapement of income, accordingly, we uphold the action of the Assessing Officer for reopening the assessment. So far as merit of addition is concerned, it is observed that AO should have brought on record positive material to substantiate the transaction of issue and repurchase of shares as bogus, having been done by paper company. However, no effort was made by the Assessing Officer or CIT(A) to establish identity of the share applicants. Matter is restored back to the file of Assessing Officer for deciding afresh as per law - Appeal of assessee allowed in part for statistical purposes.

Summary

Issues involved:
1. Validity of notice u/s 148 and time limitation.
2. Reopening of assessment without valid reasons.
3. Addition u/s 68 - genuineness of transactions.

Detailed Analysis:

1. Validity of notice u/s 148 and time limitation:
The appellant challenged the validity of the notice u/s 148, contending that it was served beyond the time prescribed by Section 149 of the Act, thus arguing that the proceedings were time-barred. However, the CIT(A) upheld the notice, stating that the issue regarding the validity of the notice was not raised before the Assessing Officer. The appellant further argued that the initiation of reassessment proceedings without valid reasons for making a fishing inquiry or facilitating a change of opinion is impermissible under section 148. The CIT(A) held that there were valid reasons for reopening the assessment u/s 148.

2. Reopening of assessment without valid reasons:
The Assessing Officer reopened the assessment based on the belief that there was an escapement of income introduced in the form of share capital and share premium. The appellant's representative argued that the Assessing Officer had raised queries during the original assessment proceedings regarding the genuineness of share applications at a premium, and all necessary details were provided. However, the Assessing Officer concluded that the transactions were not genuine without challenging the identities of the companies. The Tribunal upheld the action of the Assessing Officer for reopening the assessment within the prescribed period.

3. Addition u/s 68 - genuineness of transactions:
The Assessing Officer added Rs. 70 lakhs u/s 68 as unexplained credits, considering the receipts from certain companies as non-genuine transactions. The CIT(A) confirmed this addition, stating that the premium taken by the appellant company was not genuine, leading to the unexplained cash credit. However, the Tribunal found that proper inquiry to establish the identity of the shareholders was not conducted. The Tribunal emphasized that the appellant failed to provide confirmation of shares allotted to the shareholders and that no effort was made to verify the genuineness of the transactions. Citing the case of Lovely Exports, the Tribunal ruled that the appellant must establish the identity of the shareholders, setting aside the previous orders and restoring the matter to the Assessing Officer for a fresh decision in accordance with the law.

In conclusion, the Tribunal allowed the appeal in part for statistical purposes, emphasizing the importance of proper inquiry and establishment of shareholder identities in such cases.