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TMI Blog2014 (2) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of course the notice to reopen is exfacie without jurisdiction not requiring consideration of any argument such as beyond limitation – thus, there was substance in the contention of revenue that the Assessing Officer had tangible material to come to prima facie view that income chargeable to tax has escaped assessment – thus, There was no reason to interfere with the notice issued to the petitioner under Section 148 of the Act – Decided against Assessee. - Writ Petition No. 2595 of 2013 - - - Dated:- 14-2-2014 - Mohit S. Shah, C.J. And M. S. Sanklecha,JJ. For the Petitioner : Mr. S. C. Tiwari along with Ms. Natasha Mangat For the Respondent : Mr. Suresh Kumar JUDGMENT (Per M. S. Sanklecha, J.) Rule, returnable forthwith. By consent of the parties petition is heard for final disposal. 2) This petition under Article 226 of the Constitution of India challenges a notice dated 28 September 2012 issued under Section 148 of the Income Tax Act, 1961 ( the Act ) seeking to reopen the assessment for assessment year 2007-08. 3) Brief facts leading to this petition are : a) The petitioner is engaged in the business of shares and stock brokers. On 30 October 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... margin Money with the Company. Further the verification of Bank A/c of directors and their family member reveals that amount of Rs.11987479/was deposited in their Bank accounts during the F.Y. 2006-07 relevant to A. Y. 2007-08 by cash. Out of Rs.11987479/, an amount of Rs.11942900/was transferred to the assessee by cheques. The assessee is not reporting these transaction in the financial statement. As per the information available, the assessee has not disclose fully and truly the facts relating to acceptance and repayment of loans particularly where the source of these loans are the cash deposit in the Bank A/c's of directors and their family members. Due to non reporting of the facts, the assessee tried to evade the verification of these transaction. In view of the facts I have reason to believe that the loan transaction between company and director their family members running into crores have escaped assessment. c) On 5 November 2012 the petitioner filed its objections to the reasons recorded by the Assessing Officer for reopening the assessment for assessment year 2007-08. In particular, the petitioner submitted that as the reopening of assessment for assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly all material facts necessary for assessment. 4) Mr. Tiwari, learned Counsel for the petitioner in support of the petition submits that there has been no failure on the part of the petitioner to make a full and true disclosure necessary for its assessment for assessment year 2007-08. Consequently there was no jurisdiction in terms of the first proviso under Section 147 of the Act to issue notice under Section 148 of the Act to reopen the assessment for assessment year 2007-08. There has been a full and true disclosure as it evident from the following:- (i) The response of Not applicable in column 24(a) and (b) of Form 3CD was correct disclosure. The column 24(a) and (b) of Form 3CD in the context of taking of loans/deposits or repayment of loan/deposits exceeding the specified limits provided under Section 269 SS and 269T of the Act for being visted with penalty. The columns were not applicable to the petitioner's case; (ii) The margin money received by it from its Directors and their family members have in fact been disclosed in its financial statement as reflected in Schedule 8 appended to the balance sheet for the year ending 31 March 2007; and (iii) So far as the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our years from assessment year 2007-08. The case of the revenue argued before us is limited to its ground that the assessee has not reported a loan of Rs.1,19,42,900/received from its directors and their family members in the financial statement filed along with return of income. Thus, there was a failure to truly and fully disclose all material facts necessary for assessment. The petitioner's contention before us is that the alleged loan transaction has in fact been reflected in their financial statement as margin money which they had received from its directors and their family members while carrying on its business of share and stock broker. This margin money was reflected in Schedule 8 to the balance sheet for the year ending 31 March 2007. However, we find that this submission is being made before us for the first time as in their objections to the reasons for reopening filed on 5 November 2012 the petitioner did not state that the loan amount mentioned in the reasons for reopening is nothing but margin money which stands reflected as margin deposits in Schedule 8 of the balance sheet. The response of the petitioner in its objection was that they are not obliged to disclose in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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