9911796707
TMI Blog2022 (11) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... ord as well as the addition made in the assessment order. If the Assessment has been completed u/s 143(3) after detail scrutiny and enquiry on a particular issue, then re-opening u/s 147 on same very issue cannot be made without any tangible material coming on record having live link nexus with the income escaping assessment. The entire substratum and premise of the AO was wrong and the material and information as discussed in the reasons recorded have no link with assessee and has nothing to do with the any transaction undertaken by the Assessee. This shows complete lack of application of mind by the AO. There is not even whisper in the reasons recorded about dealing in shares of Nyssa Corporation Ltd. or the Assessee had taken any accommodation entry on this script. AO is referring to altogether different script which has not been under taken by the Assessee at all. Now, with the clarification by the DR from the records, it is seen that there are no other reasons recorded and AO has wrongly assumed Jurisdiction on a wrong assumption of facts. Accordingly, the aforesaid observation and finding of the CIT (A) is correct and the same is affirmed and we hold that the reasons re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (1971) 82 ITR 540 (SC) that apparent must be considered real until it is shown that there are reasons to believe that the apparent is not the real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities. 2. The facts in brief are that, the Assessee had filed return of Income declaring nil income on 31.10.2017. During the year the Assessee had shown transaction of sale of one script the details of which is were under: Sr. No Script Name Gross Purchase Gross Sale Net Loss 1. Nyssa Corporation Ltd. 85563939 11916611 -73647328 (Loss) Thus, assessee had incurred loss on the said transaction and it is matter of record that the said loss was neither adjusted nor set off or carry forwarded to the subsequent year. Further, Net Long Term loss was not set off against any income during the year under consideration and it has nil tax benefit. Apparently, there was no undue b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-opening giving the entire details and facts about the share transaction of the script Nyssa Corporation Limited. It was stated that, all the details of the transaction were already verified during the course of the original Assessment Proceedings vide order Dt. 26.06.2019. Thus, all these documents were available during the course of the original assessment proceedings before the AO. Since during the course of the assessment preceding the claim of the assessee has been accepted by the Ld. AO, therefore, reopening the assessment on the same issue leads to mere change of opinion . Accordingly, it was stated that all the income were duly reported in the ITR and there is no escapement of any income. 6. However, the Assessing Officer disposed of the objection vide order dated 22.12.2021, rejecting the Assessee s objection and thereafter the Assessing Officer proceeded to examine the details of transaction of the same script and finally made the addition of Rs. 1,19,37,3679/- u/s 68, that is, quantum of net loss incurred on the transaction of the share of Nyssa Corporation Ltd. was added. 7. The Ld. CIT (A) on the issue of validity of re-opening has discussed this issue in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res were sold within a short period at a high price. The AO further noted in the assessment order that on verification and analysis of the daily trade data of M/s. Nyssa Corporation Ltd. available on the website www.bseindia com (which is a public domain and can be accessed by anyone), it was observed by the AO that the share price of M/s. Nyssa Corporation Ltd was jacked up 10 times in a short period. It was also observed that in the initial period, the price was determined through one transaction and trading of very few shares. Further, the AO observed that rise of share price was artificially accorded by rigging of share trading by the entry operator and thus, the loss and gain was artificially generated. Therefore, the AO in the re- assessment order u/s 147 has made addition in respect of STCG from sale of shares of M/s. Nyssa Corporation Ltd. As against the action of the AO, the appellant has submitted that the AO has merely acted upon the information provided by the Investigation Wing. The only information available with the AO at the time of reopening of assessment was that the assessee had made transaction into shares of Naresh Manakchand Jain. However, the AO has made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referring to various judgments, held that re-opening is bad in law and he quashed the Assessment order passed u/s 147. 9. During the course of the hearing before us, we have asked the Ld. DR to get clarification from the Assessing Officer. The relevant order sheet entry dated 4th Oct 2022 reads as under; Ld. Counsel of the assessee pointed out that in the reasons recorded there is no mention about any scrip of which assessee has dealt for alleged LTCG/STCG. Intact assessee has incurred long term capital loss on sale of 'Nyssa Corporation. Ltd' which is not mention in the reasons recorded and also assessee has not claimed any set off of this loss at any point of time. Reasons recorded and finding given in the assessment order is entirely different. The Ld. DR sought time for clarification from A.0. on this point. List the matter for further hearing on 20.10.2022 as part-heard at 2:30 p.m. 10. On 28th October, the Ld DR after verifying the assessment records submitted that the reasons recorded was entirely on different information and script which is different from the addition made by the Assessing Officer in his order. 11. We have heard the rival conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
