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TMI Blog2014 (4) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer its lift field operations business to TEPL for the consideration and on the terms and conditions stipulated therein. Clauses 1.9, 1.10, 1.55 and 4.1 of the said agreement read as under :- "1.9 "Bonds A" means the bonds of the value of Rs.95,500,000/- (Rupees Ninety-five million, five hundred thousand only) to be issued by Tiger to BBL pursuant to the Scheme of Arrangement in the form Schedule AA 1.9. 1.10 "Bonds B" means the bonds of the value of Rs.47,750,000/- (Rupees Forty-seven million, seven hundred and five thousand only) to be issued by Tiger to BBL pursuant to the Scheme of Arrangement in the form Schedule AA 1.10. 1.55 "Shares" means 33,425,000 (thirty-three million, four hundred and twenty-five thousand) preference shares of the face value of Rs.10/- (Rupees ten only) each, to be issued to BBL by Tiger in its capital pursuant to the Scheme of Arrangement. Schedule AA 1.55 is the format of the preference shares to be issued. 4.1 The consideration for the transfer of the Business shall be Shares and Bonds to be issued by Tiger to BBL the aggregate of the value of Shares and of the Bonds is hereinafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition No.832 of 2004, seeking the sanction of this Court under section 391 and 394 of the Companies Act, 1956 in respect thereof. By an order dated 17.12.2004, the company Judge sanctioned the scheme. 01.04.2004 was the effective date of the scheme. Disputes arose between the petitioner and other party to the agreement which were settled on the terms and conditions contained in a Settlement Agreement dated 29.08.2005, clause 3 whereof reads as under :- "3. The Parties agree that the total consideration to be paid to BBL by Olympus (including all adjustments) as stated in Clause 4 of the Acquisition Agreement shall be a fixed sum of three hundred and sixty-five million Indian Rupees (INR 365,000,000) (hereinafter referred to as the "Consideration") which includes the agreed aggregated value of Bonds A and Bonds B of INR 117, 500,000/- and shall not be subject to any further adjustment, amendment or negotiation. i) The funds of INR 247,500,000 that have already been released by the Escrow Agent to BBL towards the 24,750,000 preference shares forming Escrow Funds Part A under the Escrow Agreement are to be consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned notice has been issued, were considered in considerable detail and exhaustively by the Assessing Officer before passing the assessment order dated 31.12.2007 under section 143(3). What follows demonstrates the same almost beyond doubt. 8 (A)(i). By a notice dated 09.08.2007, the Additional CIT called upon the petitioner to furnish several documents including ; "28. Details of transfer of Elevator Field Operation Division alongwith copy of transfer agreement, copy of High Court order and the scheme of arrangement in this regard. 29. Kindly also submit the reasons on which you have stated in your report that these transactions is not taxable as capital gain. For the purpose of verification and discussion, the case is fixed for hearing on 21.08.2007 at 11:30 AM." (ii). Under cover of a letter dated 03.09.2007, the petitioner forwarded the said agreements, scheme of arrangement, court order and the receipt for registration with ROC for the said transfer. B). On 18.09.2007 obviously pursuant to the requisitions of the respondents, the petitioner forwarded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration of the preference shares and the value of bonds of Rs.24.75 crores and Rs.11.11 crores respectively aggregating to Rs.35.86 crores was also mentioned. H). By a further letter dated 30.11.2007, the petitioner submitted a note of case law on the issue regarding transfer of the EFO division, as well as working as requisitioned by the AO as per the provisions of section 50B of the long term capital gains on the transfer of the EFO division. I). By a letter dated 05.12.2007, the petitioner furnished the details of the expenses incurred by it in respect of the transfer of the EFO division and accounting of the transfer of the division viz. as approved by the scheme of arrangement sanctioned by this Court and submitted the books of account. J). Finally by a letter dated 20.12.2007, the petitioner responded to the discussions held on 14.12.2007 regarding treatment of the transfer of the EFO division. The petitioner stated that it was indicated that the consideration would be Rs.36.50 crores instead of Rs.35.86 crores as stated in its submissions. It is important to note that even this difference of Rs.35.86 crores and Rs.36.50 crores was specifically referred to. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd not sale. Consequently neither the provisions of section 2(42C) nor section 50B were applicable. 13. This brings us to the impugned notice dated 13.03.2012 issued by respondent No.1 stating that there was reason to believe that the petitioner's income in respect of which it is assessable to tax for the AY 2005-2006 had escaped within the meaning of section 147 and that it was therefore, proposed to reassess the income. This was beyond the period of four years from the end of the AY 2005- 2006. 14. By a letter dated 22.08.2012, the Deputy Commissioner, at the petitioner's request, furnished the reasons recorded for reopening the assessment. We do not find anything in the communication dated 22.08.2012 that was not considered during the assessment proceedings. Every single aspect referred to therein was considered in the assessment proceedings. One of the reasons stated was that as per the valuation report of the transferee's chartered accountants M/s.P. Krishnan & Associates the fair market value of the division was determined at Rs.36.50 crores. Mr. Suresh Kumar, the learned counsel appearing on behalf of the respondents contended that this report had not been disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee to disclose every such document unless the existence of such documents themselves would be material to the assessment. 19. We referred in detail to all that transpired during the course of the assessment proceedings, especially the queries raised and the information sought by the AO and the petitioner's response thereto. The same indicates beyond doubt that all the material facts were not only disclosed but were brought to the notice of the AO and the AO considered the same. As we also mentioned earlier Mr.Suresh Kumar was unable to indicate any of the other facts mentioned in the letter dated 22.08.2012 that were not disclosed or taken into consideration in the assessment proceedings. Even if the assessment order does not by itself indicate that the AO considered the same, it would make no difference. In Rabo India Finance Limited vs. Deputy CIT (2012) 346 ITR 528), a Division Bench of this Court, to which one of us (S.J. Vazifdar, J.) was a party, held as under :- "17. The facts thus far indicate that the respondents were aware not merely of the existence of the transactions between the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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