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TMI Blog2018 (5) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... ORAL ORDER ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged a notice dated 28.03.2017 issued by the respondent-Assessing Officer to reopen the petitioner's assessment for the assessment year 2010-11. 2. Petitioner is a private limited company. For the assessment year 2009-10, the petitioner had filed no return of income. Assessing Officer recorded reasons on 28.03.2017 to form a belief that income chargeable to tax has escaped assessment and thereafter issued the impugned notice. The reasons read as under: As per data available in Income Tax Department's system, it was observed that the assessee has not filed its return of income for the previous year relevant to A.Y. 2010-11. 2. A search operation u/s 132 of the IT Act was carried out in the case of Madhav Group of cases, Vadodara at the business premises of Madhav Infra Projects Limited at Madhav House, Subhanpura, Vadodara on 09.11.2016 to 11.11.2016. During the search proceedings, some incriminating documents were found and seized. 3.1 A laptop of Shri Amish Bhagwat was found. The hard disc of the laptop was removed and seized and inventoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Pvt. Ltd 2 Digamber Jaintemple Road Kolkata Indian 10000 10,00,000 Nil 3 MSV Fiscal Services P Ltd 2, D J Temple Road, 1st Floor Room No. 28 PS Burrabazar, Kolkata Indian 25000 25,00,000 Nil 4 Oleander 2, D J Indian 15000 15,00,000 Nil Manufactures Credit P Ltd Temple Road, 1st Floor Room No. 28 PS Burrabazar, Kolkata 5 Slow and Sound Electronics Pvt Ltd 2, D J Temple Road, 1st Floor Room No. 28 PS Burrabazar, Kolkata Indian 20000 20,00,000 Nil For MSK Real Estate Private Limited Amit Ashok Khurana illegible Director Sign sd/- 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reply of Shri Ashok Khurana that he was unable to comment on the genuineness of these loans. This statement also applies to the bogus share capital raised by the assessee in the names of the same set of Kolkata based companies. Further, during the course of operation of Prohibitory Order put up at the residence of Shri Ashok Khurana on 05.01.2017, again the statement of Shri Ashok Khurana was taken u/s. 132(4) of the Income Tax Act, 1961. Shri Ashok Khurana was confronted with the report of the Kolkata Investigation Wing and particularly of DDIT (Inv) Unit 4(2) Kolkata dated 10.11.2016 along with the statements of Dummy Directors unsecured loans from Kolkata based entities. However, he has not submitted any clarification regarding this till date. Therefore, the share application money of ₹ 1 crore received from the Kolkata based non genuine shell companies are unexplained for the previous year relevant to A.Y 2010-11. 6. In view of the facts discussed above, I have reason to believe that income of ₹ 1 crore chargeable to tax has escaped assessment within the meaning of section 147 of the Income Tax Act. 7. The notice u/s. 148 of the Act is issued after ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of the assessee. Further, the assessee claimed that it had received share application money of ₹ 1,00,00,000/- during 26.03.2009 to 31.03.2009 i.e. F.Y. 2008-09 relevant to A.Y. 2009-10. The assessee had also furnished the copy of the bank account for the relevant period, the details of which are as under:- Posting Value date Descrip REF/ Withdraw Credits Balance date tion CHQ No. als 301548 26.03. 2009 26.03.2009 By CLG 898025 0 3000000 3301548 26.03. 2009 26.03.2009 By CLG 872941 0 1300000 4601548 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing F.Y. 2008-09 even though the same has been credited to its bank account during F.Y. 2009-10. Therefore, without prejudice to the facts mentioned at 3.1.2 above the assessee had wrongly reflected in its balance sheet that it had received the share application money of ₹ 1,00,00,000/- during F.Y. 2008-09 relevant to A.Y. 2009-10. 5. From the record, it emerges that the assessee had not filed return for the relevant assessment year. Further, the reasons cited by the Assessing Officer for issuing the notice of reopening are quite serious. In such reasons, he had pointed out that the material collected by the department during search operation in case of Madhav Group of cases which led to further information that the assessee had alloted 1 lac shares to different investor companies by charging ₹ 90/- by way of premium over and above the nominal value of ₹ 10/- per share. The Investigating Wing of the department had collected material to suggest that these were shell companies engaged in providing accommodation entries having dummy directors. Statement of the director of the assessee-company was also recorded. He could not provide genuineness of these transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the assessee. At the stage of examining validity of the notice of reopening, these issues need not be finally decided. 9. As recorded, two facts are undisputable (1) that the assessee had not filed any return for the said assessment year and; (2) as per the reasons recorded by the Assessing Officer, there is every case for permitting assessment of the assessee for the said year. As per the reasons recorded, the assessee had received bogus share premium money from shell companies who were indulging in providing bogus accommodation of the entries. There were series of transactions of this nature. The question that, when precisely the taxing event occurred would have to be kept open to be decided at the first instance by the Assessing Officer during the course of assessment. In the present case, at the very threshold, it is neither necessary nor are we inclined to decide this issue finally. We are conscious that the reasons recorded by the Assessing Officer can be challenged on the ground of their validity. If therefore there is a clear conclusion possible that such reasons lacked validity, it would always be open for the Court to strike down the notice based on such reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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