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TMI Blog2019 (4) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... assing the assessment order, and it is only a guess work on part of the Assessing Officer while recording the reasons amounting to a fishing inquiry. Impugned notice cannot be sustained as the same is issued after expiry of four years from the end of relevant assessment year as proviso to section 147 of the Act would be applicable in absence of any failure on the part of the petitioner to disclose fully and truly all material facts necessary for the assessment year 2011-12. - R/SPECIAL CIVIL APPLICATION NO. 13496 of 2018 - - - Dated:- 25-3-2019 - MS HARSHA DEVANI AND MR BHARGAV D. KARIA, JJ. For The Petitioner : DARSHAN R PATEL (8486) For The Respondent : MRS MAUNA M BHATT (174) ORAL JUDGMENT ( PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Rule. Mrs. Mauna Bhatt, learned senior standing counsel waives service of notice of rule on behalf of the respondent. 2. Having regard to the controversy involved in the present case which lies in a very narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing. 3. The petitioner in this petition has challenged the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25,75,000 issued to Shri Dalal on 29.05.2010, 10,00,000 shares were issued at par and remaining 15,75,000 shares were issued for premium @ ₹ 161 per shares. The assessee got ₹ 25,35,75,000 as share premium from Shri Dalal. Remaining 42,50,000 shares were issued at par on same day to 16 other persons. This meant that on 29.05.2010, 52,50,000 shares were issued at par and 15,75,000 shares on the same day issued to Shri Dalal for premium @ ₹ 161 per shares. Shri Dalal was also issued 10,00,000 shares at par on the same day. [ 1.3] No details are on record giving reason for not charging premium on 42,50,000 shares issued on the same day to 16 other persons and even from Shri Dalal for issue of 10,00,000 shares on the same day. Therefore, it is established that allotment of 15,75,000 shares on 29.05.2010 to Shri Dalal @ face value of ₹ 10 and premium @ ₹ 161/- per shares was not genuine when on the same day he was also allotted other 10,00,000 shares at par and also on that very day, 16 other persons were allotted 42,50,000 share at par. Thus, the amount of ₹ 26,93,25,000/- has escaped assessment. [ 2.] The assessee company was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as narrated in Notes on Accounts (Annexure K) A accounting Policies 1. General. [ 2.5] As such, income from other sources of ₹ 29,80,016 was to be taxed without setting of any expenditure and loss of ₹ 83,45,311 arisen due to allowance of expenditure and depreciation should not be allowed. Thus, the amount of ₹ 1,13,25,327/- (2980016 + 8345311) has escaped assessment. [ 3] In view of the above, income to the tune of ₹ 28,06,50,327/- (26,93,25,000 + 1,13,25,327) has escaped assessment within the meaning of section 147 of the I.T. Act, 1961. Therefore, I have reason to believe that income has escaped assessment for A.Y. 2011-12 to the tune of ₹ 28,06,50,327/- and accordingly, assessment is required to be reopened u/s 147 of the I.T. Act, 1961. Date : 26.03.2018 6. On receipt of above reasons, the petitioner on 12.07.2018, requested respondent for inspection of case records which was granted by the respondent on 24.07.2018. The petitioner thereafter, on 08.08.2018 filed objections to issuance of notice under section 148 of the Act for reopening of assessment for A,.Y. 2011-12, which was rejected by the respondent vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 32 in the notice under section 143(2) of the Act to the effect that no pre-operative expenses were debited to the profit and loss account. Expenses related to pre-operative expenses have been transferred under the head preoperative Account (Assets) at the end of the year on 31.03.2011. Thus, the assessee has disclosed truly and fully all particulars at the time of assessment and the Assessing Officer at the time of scrutiny assessment has considered this issue. It was further submitted that the Assessing Officer at the time of passing the assessment order, has also considered this issue and ROC expenses have been disallowed while framing assessment under section 143(3) of the Act. It was therefore submitted that reopening the assessment on issue of preoperative expenses would amount to change of opinion. It was also submitted that the CIT (Appeals) has not issued sanction under section 151 of the Act on the date of issuance of notice. 10. On the other hand, the learned advocate for the respondent submitted that the Assessing Officer has rightly issued notice for reopening as it is evident from the reasons itself that the assessee has issued shares only to Shri Dalal at premium ..... X X X X Extracts X X X X X X X X Extracts X X X X
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