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TMI Blog2016 (2) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... that charging of share premium over and above the intrinsic value of the share is income which has escaped assessment. The Notice itself does not indicate the approximate amount of income, which the Assessing Officer has reason to believe has escaped assessment nor does it quantify the extent to which the share premium received was in excess of intrinsic value, which has escaped assessment. It gives no reasons to indicate the basis of coming to the conclusion that share premium is excessive and, therefore, income. Moreover, the Notice also does not dispute that this is a share premium but seek justification for charging the share premium over and above intrinsic value of the share premium. Primafacie, we are of the view that the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 of the Act is without jurisdiction on account of the Assessing Officer having no reason to believe that income chargeable to tax has escaped assessment. However, in appeal, the Apex Court while setting aside the decision of this Court held that where the original Return has been accepted by Intimation under Section 143(1) of the Act, there could be no change of opinion. Further, it impliedly held that in such cases where assessment is completed by Intimation under Section 143(1) of the Act, there is no requirement for the Assessing Officer to have reason to believe that income chargeable to tax has escaped assessment, so as to exercise jurisdiction under Section 148 of the Act. 2. In view of the fact that the objections raised by Mr. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hargeable to tax has escaped assessment, where the original assessment has been completed by Intimation under Section 143(1) of the Act. The Revenue is trying to infer that because the Apex Court in Zuari Estate Development and Investment Co. Ltd. (Supra) has set aside the order of this Court and restored the issue to be decided on merits by the Tribunal, it must be inferred that the Apex Court had come to the conclusion that reason to believe was not necessary for issuing reassessment Notices where the regular assessment was completed under Section 143(1) of the Act. As rightly pointed out by Mr. Pardiwalla, it can equally be inferred that the Apex Court in the above case had come to the conclusion that there is reason to believe that inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax has escaped assessment. In the above view, it is open for the petitioner to challenge a notice issued under Section 148 of the Act as being without jurisdiction for absence of reason to believe even in case where the Assessment has been completed earlier by Intimation under Section 143(1) of the Act. 6. Accordingly, the objection raised by the Revenue is not acceptable. We place on record our appreciation for the assistance rendered by Mr. Pardiwalla, Senior Counsel as an amicus curiae. 7. We thereafter heard the petition on its challenge to the reopening Notice dated 20th March, 2015 under Section 148 of the Act, seeking to reopen the assessment for the Assessment Year 201011. 8. Rule. 9. The reason in support of the impugned Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the decision of this Court in M/s. Alliance Space Pvt. Ltd. Vs. The Income Tax Officer 6(1)(1), Mumbai & Ors. (Writ Petition (L) No. 735 of 2015) rendered on 27th March, 2013. Primafacie, both the decisions do not take the Revenue's case any further as they are inapplicable. So far as decision in the case of Major Metals Ltd. (Supra) is concerned, it turned on its own facts and was rendered at a point of time prior to that of Vodafone India Services Ltd. (Supra). Besides, it arose out of an order of the Settlement Commission and was not arising on challenge to a reopening Notice. The test in a challenge to a reopening notice on the issue of jurisdiction is whether the reasons recorded do indicate a reasonable belief that income char ..... X X X X Extracts X X X X X X X X Extracts X X X X
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