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TMI Blog2016 (6) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 2011-12, the petitioner submitted its return of income on 19.09.2011 showing total loss of Rs. 77,51,810/- and a book profit of Rs. 35,96,518/-. The case was processed under section 143(1) of the Act. Thereafter, the petitioner received a notice dated 02.03.2015 issued under section 148 of the Act from the respondent. In response to the same, the petitioner requested for a copy of the reasons recorded for issuing the notice under section 148 of the Act, which came to be furnished to the petitioner. In response to the reasons recorded for reopening the assessment, the petitioner filed its objections by a letter dated 14.09.2015, which came to be rejected by the respondent by an order dated 05.10.2015. 5. Mr. Manish Shah, learned advocate for the petitioner invited the attention of the court to the reasons recorded for reopening the assessment to submit that on the reasons recorded, the Assessing Officer could not have formed the belief that income chargeable to tax has escaped assessment. It was submitted that there is no new tangible material on record and even in a case covered under section 143(1) of the Act, the Assessing Officer should have fresh tangible material on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowance of Rs. 116.86 lakhs is made, there would be no difference in the assessee's tax liability under section 115JA of the Act. The court, placing reliance upon the decision of this court in the case of PKM Advisory Services P. Ltd. v. Income Tax Officer (supra), held that in the original assessment order, against the loss of Rs. 1.44 crores under the normal computation, the assessment was framed on book profit of Rs. 2.89 crores under section 115JA of the Act. Therefore, even if the expenditure of Rs. 116.86 lakhs is disallowed, there would be no resultant change in the petitioner's tax liability since the petitioner has already paid much higher tax. The court, accordingly, quashed the notice under section 148 of the Act. It was submitted that the above decisions would be squarely applicable to the facts of the present case and hence, since the tax liability even if the addition proposed to be made by the Assessing Officer is sustained, would not increase, there is no reason for formation of belief on the part of the Assessing Officer that income chargeable to tax has escaped assessment. It was accordingly, submitted that the assumption of jurisdiction on the part of the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with the provisions of law. It was submitted that therefore, the plea taken by the petitioner that there would be no difference in tax liability deserves to be rejected. 6.2 In support of his submissions, Mr. Desai placed reliance upon the decision of the Supreme Court in the case of Deputy Commissioner of Income Tax v. Zuari Estate Development & Investment Co. Ltd., (2015) 373 ITR 661 (SC), for the proposition that where the assessee's return is accepted under section 143(1) of the Act, there is no question of change of opinion, inasmuch as, while accepting the return under the said provision, no opinion is formed. The learned counsel also placed reliance upon the decision of the Supreme Court in the case of Commissioner of Income Tax (Central), Delhi v. Harprasad and Co. (P) Ltd., (1975) 99 ITR 118, for the proposition that income also includes loss. 6.3 It was further submitted that the petitioner in the computation of his income, has claimed loss which will be set off in the subsequent years. Hence, despite the fact that for the year under consideration, he may be assessed on the book profit under section 115JB of the Act, the loss claimed under the regular computation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is very high in comparison to the real worth of the shares. Further, assessee company has shown total income of Rs. NIL for It is difficult to accept the fact that a person will invest in the share capital of a Private Limited Company at such a huge premium which is even higher than the real worth of the share. In fact, a sound investor will never subscribe to the shares of a company with such meager profits at such high premiums. A detailed analysis of the data furnished by the assessee with its return shows that whereas the net worth of the shares issued is Rs,98/-, the same have been allotted for Rs. 1000/- i.e. an excess of Rs. 902/-. In my opinion, this excess premium amount of Rs. 902/- is unexplained cash-credit in the hands of the assessee. Hence, I have reasons to believe that income to the extent of Rs. 81,18,000/- has escaped assessment in the hands of the assessee for A.Y. 2011-12. I have, therefore, reasons to believe that income/gain chargeable to tax has escaped assessment for the A.Y. 2011-12. The above income / gain chargeable to tax has escaped assessment by reason of the failure on the part of the above named assessee who failed to disclose fully and trul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment is reopened under section 147, the assessee may, if he has not impugned any part of the original assessment order for that year either under sections 246 to 248 or under section 264, claim that the proceedings under section 147 shall be dropped on his showing that he had been assessed on an amount or to a sum not lower than what he would be rightly liable for even if the income alleged to have escaped assessment had been taken into account, or the assessment or computation had been properly made. It was submitted that in view of the above provision, the proceedings are even otherwise required to be dropped because even if the income which is alleged to have escaped assessment is taken into account, the petitioner would not be assessed at a higher amount. 11. Insofar as the second contention raised on behalf of the petitioner is concerned, the controversy stands squarely concluded by the decision of this court in the case of India Gelatine and Chemicals Ltd. v. Assistant Commissioner of Income Tax (No.1) (supra) wherein, the court in a case where the assessee had declared a loss of Rs. 1.44 crores under the normal computation and the assessment was framed on book profit o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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