9911796707
TMI Blog2016 (12) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Private Limited Company stated to be engaged in the business of Corporate Advisory, Commission and Real Estate. The return of income for the assessment year 2009-2010 was filed on 26.09.2009 disclosing a loss of Rs. 25,81,247/-. The petitioner during the said assessment year had issued 1,40,000 shares which according to the petitioner were compulsory convertible cumulative preference shares at a premium of Rs. 240/- per share. The return of income was processed under Section 143(1) of the Act and an intimation was issued to the petitioner on 29.03.2011. Subsequently, the intimation under Section 143(1) of the Act was rectified and an order under Section 154 of the Act was passed on 16.09.2015. 3.Mr.R.Sivaraman, learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prakriya Pharmacem vs. Income Tax Officer, Ward-7 reported in (2016) 66 taxmann.com 149 (Gujarat) 5.It is further submitted that in the reasons for reopening, the respondent had stated that the transaction in question is not genuine and such introduction of share premium needs to be taxed under Section 68 of the Act. It is submitted that Section 68 of the Act can have no application as such amendment was introduced only on 01.04.2013 and the relevant assessment year is 2009-10. Further it is pointed out that in the objections, the petitioner has specifically stated that the premium received could be brought to tax under Section 56(2)(viib) of the Act and this sub-clause was introduced with effect from 01.04.2013 i.e. assessment year 2013- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent is required to do is to pass a speaking order after considering the objections. This requirement has been complied with and the impugned order has been passed and necessarily the petitioner has to avail the remedy under the provisions of the Act. 7.Heard the learned counsels appearing for the parties and perused the materials placed on record. 8.The respondent has issued the impugned notice under Section 148 of the Act as he had reason to believe that the income in respect of which the petitioner was chargeable to tax for the relevant assessment year has escaped assessment within the meaning of Section 147 of the Act. The expression 'reason to believe' has been explained to mean a cause or justification and cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her than on facts. While the assessee cannot be faulted for referring to judicial precedence, in the considered view of this Court the assessee was bound to first put forth the factual position and then say as to how the judicial precedence could be applied to the facts. By adopting a reverse procedure would amount to putting the cart before the horse . Though the learned counsel during the course of argument submitted that the respondent committed a serious error in stating that equity shares were issued whereas the petitioner had issued only compulsory convertible cumulative preference shares. This was not raised by the petitioner while submitting their objections for reopening. In any event this is a factual issue which has to be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to issue notice under Section 148 of the Act. Further it is submitted that even where there is a complete failure on the part of the Assessing Officer to apply his mind during the original assessment proceedings it can be said that there is a tangible material and reasons to believe that the income has escaped assessment. 11.In the light of the reasons assigned by the respondent in the impugned order dated 16.11.2016, the case on hand cannot be stated to be one where the respondent has not considered the petitioner's objections and in the process of consideration, the respondent has taken a stand to the extent permissible at this point of time as if any further findings are rendered by him it would amount to pre-deciding the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
