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TMI Blog2013 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... d the amount as capital gains in the return of income. There was thus no failure to disclose the income. Consequently, there is no escapement of income. The change of the nomenclature from “capital gains” to “undisclosed income” does not result in any escapement of income since the rate of tax is the same under both heads - reassessment was without jurisdiction - in favour of assessee. - ITA Nos.1462/2010, 1463/2010 & 751/2011 - - - Dated:- 1-2-2013 - MR BADAR DURREZ AHMED AND MR JUSTICE R.V.EASWAR JJ. For the Appellant: Mr. Abhishek Maratha, Advocate For the Respondent: Mr. Ajay Vohra, Advocate JUDGMENT R.V.EASWAR, J These are appeals filed by the revenue under section 260A of the Income Tax Act, 1961. They relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .05 NIL Add : Loss on sale of share M/s D cor Steel Ltd. disallowed {as discussed above (Rs.57,46,463 5,10,130 = 52,36,333)} 52,36,333 Add : Undisclosed income introduced under guise of short term 5,10,130 TOTAL INCOME 57,46,463 3. In the appeal filed before the CIT(Appeals), the assessee challenged the jurisdiction of the AO to reopen the assessment and also challenged the addition on merits. The CIT(Appeals) rejected the challenge to the jurisdiction of the AO to reopen the assessment. On merits, he decided the appeal in favour of the assessee by deleting the addition of Rs.5,10,130/-. 4. Both the assessee as well as the revenue filed appeals before the Tribunal. The appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 is directed against the Tribunal s decision in ITA No.2703/Del/2007 which seems to have been filed by way of abundant caution, since the Tribunal has not dealt with the merits of the addition. 6. The reasons recorded under section 148(2) for reopening the assessment are as follows:- M/S BHUSHAN CAPITAL CREDIT SERVICES LTD, AY: 1999-2000 The Directorate of Investigation-I, New Delhi, vide its office letter No.1320 dated 2.3.2006 had sent a report in case of beneficiaries and operators of accommodation entries in Delhi. The letter was accompanied with a detail report. A perusal of the report shows that, M/s Bhushan capital Credit Services Ltd, whose jurisdiction lies with the undersigned, has been a beneficiary of an entry provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lared in the return of income as capital gains and what the AO did was only to change the nomenclature from capital gains to undisclosed income . The assessment has been reopened after a lapse of about 8 years from the end of the relevant assessment year as noted by the Tribunal in paragraph 10 of the impugned order. If the assessment is sought to be reopened after a period of four years from the end of the relevant assessment year, it is incumbent upon the AO, under the first proviso to section 147, to show that the escapement of income was on account of failure of the assessee to file the return of income or to furnish fully and truly all material facts relating to the assessment. As we have already noted, according to the revenue the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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