2019 (12) TMI 379 - HC - Income Tax

Reopening of assessment u/s 147 - AO received information that M/s. Banas Finance Ltd. is a penny stock listed on BSE with script code and has been used to facilitate introduction of unaccounted income of members of beneficiaries in the form of exempt capital gain or short term capital loss in their books of accounts - HELD THAT - As submitted that the assessment is sought to be reopened on borrowed satisfaction of the investigation wing without making any inquiry into the facts of the case. Assessment is sought to be reopened beyond a period of four years from the end of the relevant assessment year and that in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts, the assumption of jurisdiction by the Assessing Officer under section 147 of the Act is without any authority of law. Having regard to the submissions advanced by the learned advocate for the petitioner, issue notice, returnable on 21st January 2020. By way of ad-interim relief further proceedings pursuant to the impugned notice dated 29th March 2019 issued by the respondent under section 148 of the Act for assessment year 2012-2013 are hereby stayed.

Issues Involved: Reopening of assessment based on alleged tax evasion through penny stock transactions, validity of reasons for reassessment, application of mind by Assessing Officer, jurisdiction under section 147 of the Income Tax Act, 1961, and the time limit for reopening assessments.

Analysis:

1. Reasons for Reopening Assessment: The petitioner's advocate highlighted that the Assessing Officer cited information indicating that a specific company was used for introducing unaccounted income. The officer alleged that the petitioner had sold shares of this company, leading to an alleged tax evasion. The petitioner had previously provided details during scrutiny assessment, including share transaction specifics.

2. Application of Mind by Assessing Officer: Despite the petitioner providing necessary details during the assessment process, the Assessing Officer did not make any additions related to the alleged tax evasion in the final assessment order. The officer acknowledged the petitioner's short term and long term capital gains, accepting the submitted documents such as audited accounts and reports.

3. Reopening Based on Change of Opinion: The petitioner argued that the reassessment was merely a change of opinion by the Assessing Officer, as the officer had previously allowed the petitioner's claims after due consideration. The petitioner contended that the reassessment was not based on new facts but on a different interpretation of existing information.

4. Validity of Reopening Jurisdiction: The petitioner further contended that the reassessment was based on borrowed satisfaction from the investigation wing without conducting an independent inquiry into the case's facts. Moreover, the reassessment was initiated beyond the four-year period from the end of the relevant assessment year, raising questions about the validity of the Assessing Officer's jurisdiction under section 147 of the Income Tax Act.

5. Court's Decision: Considering the arguments presented by the petitioner's advocate, the court issued notice for further proceedings, returnable on a specified date. Additionally, an interim relief was granted, staying the proceedings related to the impugned notice for the assessment year in question. Direct service of the court's decision was permitted for effective communication.

This detailed analysis of the judgment from the Gujarat High Court covers the issues related to the reassessment of tax liability based on alleged tax evasion through penny stock transactions, the Assessing Officer's actions, the validity of reasons for reassessment, jurisdiction under the Income Tax Act, and the time limit for reopening assessments.

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