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TMI Blog2023 (2) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment, a review would take place. There was no failure on the part of the assessee to disclose fully and truly the material facts, nor there was any tangible material with the A.O. which would have otherwise justified the reopening of the assessment by issuing the notice impugned. Petition is allowed. - WRIT PETITION NO.2179 OF 2022 - - - Dated:- 10-2-2023 - DHIRAJ SINGH THAKUR KAMAL KHATA, JJ. For the Petitioner : Mr. S. Sriram a/w Ms. Ushashi Datta i/b Mr. Sriram Sridharan, Advocate. For the Respondents : Mr. Suresh Kumar. JUDGMENT : PER DHIRAJ SINGH THAKUR, J.: The Petitioner challenges the notice under Section 148 of the Income Tax Act, 1961 ( the Act ) dated 30th March, 2021 for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived during the year. It was further stated in the objections that the queries raised during the scrutiny assessment were replied by the Petitioner. A valuation report obtained by the Petitioner from its Chartered Accountant (C.A.) is also stated to have been furnished during the scrutiny assessment, which valuation report determined the fair value of the shares at Rs.28.41 as against issue price of the shares by the Petitioner at Rs.27 per share. The valuation was arrived at by following the Discounted Cash Flow Method. It was therefore urged that the issue of premium collected by the Petitioner had been gone into during the scrutiny assessment and based upon the specific queries raised and the material supplied, the order of assessment da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an accountant were omitted. It was thus urged that Discounted Free Cash Flow Method adopted by the Petitioner certified by the C.A. was a permissible mode for determining the fair market value of the shares as it had been rightly accepted by the A.O. during the scrutiny assessment proceedings. 7. Learned Counsel for the Respondents on the other hand reiterated that the correct valuation of the equity shares determinable in terms of Rule 11UA of Rules of 1962 was Rs.6.48 by applying the following formula as prescribed under Rule 11UA(2)(a) of Rules, 1962. 8. While it may be true that Rule 11UA(2)(a) of Rules, 1962 prescribes a particular formula as is reflected therein, yet Rule 11UA(2)(a) did give an option to the assessee to foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 561 , held that there was a difference between power to review and power to reassess under section 147 and that the AO had no power to review and that, if the concept of change of opinion was removed, then, in the garb of reopening of the assessment, a review would take place. It was held : 4 ..Therefore, post-1-4-1989, power to re-open is much wider. However, one needs to give a schematic interpretation to the words reason to believe failing which, we are afraid, section 147 would give arbitrary powers to the Assessing Officer to re-open assessments on the basis of mere change of opinion , which cannot be per se reason to re-open. We must also keep in mind the conceptual difference between power to review and power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (3) of section 143 a presumption can be raised that such an order has been passed on application of mind. It is well known that a presumption can also be raised to the effect that in terms of clause (e) of section 114 of the Indian Evidence Act the judicial and official acts have been regularly performed. If it be held that an order which has been passed purportedly without anything further, the same would amount to giving premium to an authority exercising quasi- judicial function to take benefit of its own wrong. 12. We have no hesitation that there was no failure on the part of the assessee to disclose fully and truly the material facts, nor there was any tangible material with the A.O. which would have otherwise justified ..... X X X X Extracts X X X X X X X X Extracts X X X X
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