9911796707
TMI Blog2023 (6) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... change of opinion of AO the reopening was not justified. Where primary facts necessary for assessment are fully and truly disclosed the AO is not entitled to reopen the assessment on a change of opinion. Also held that while considering the material on record, when one view is conclusively taken by AO, it would not be open for the AO to reopen the assessment based on the very same material and take another view. In the present case, the Respondent No. 1 has received information from ITO (I CI) Unit 2(3) Mumbai, that SEBI passed orders in cases of reversal trades and accommodation entries. Even though the Petitioner has explained the transactions done, through note No. 17 submitted along with the Profit and Loss Account and other supporting documents, the Respondents have mindfully taken a stand, that at this stage, they are not required to look into the sufficiency and correctness of the information and can consequently reopen the case. Once the Petitioner provided the all the details, explanations and documents against the reasons for reopening. AO considering the principle of shifting of onus under the evidence act, must necessarily carefully examine the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RIVATE LIMITED has shown a total profit of Rs. 2,07,33,019 from trading in shares in F O/commodities/currency. The same was verified by I CI in the course of verification made after SEBI passed orders in cases of reversal trades and accommodation entries. The assessee has traded through two share brokers namely Master Capital Services Ltd Skung Trade link Ltd. The Global report of Skung Trade link Ltd. shows loss of Rs. 84,94,990 and though the assessee has not submitted further break up of other income, it appeared that the profit shown above was a net profit taking into account transactions of both the brokers and after setting of the loss from trading in futures and option on BSE platform of Rs. 94,90,000. This has reduced assessee s net profit of the F.Y. 2014-15 to the tune of Rs. 84,90,000. The assessment in the case of assessee for A.Y. 2015-16 was completed under section 143(3) on 15.11.2017. During the assessment proceedings, there is clear failure on part of the assessee to make full and true disclosure of these material facts. In view of the above, since assessee has failed to disclose fully and truly all material facts necessary during assessment, I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021 and response thereto was filed on 20th December 2021. The Respondent No. 1 rejected the objections on 24th January 2022 and hence the Petitioner was constrained to file this Petition on 14th March 2022. 7. The Respondent no. 1 by their reply to this Petition defends its reopening by stating: 4.2 Merely not mentioning the year-wise amount and exact amount in the reasons for reopening does not change the character of non-genuine transactions as genuine. During the said assessment proceeding, the assessee filed an objection dated 20.12.2021 stating all this transaction undertaken by the assessee are shown in books of accounts and profit of Rs. 2,07,33,019/- truly fully disclosed in the return of income. However, nowhere in the objection has the assessee given any details of dates and amounts of transactions in stock options on BSE which were the subject matter of order passed by SEBI. Despite knowing that the case was reopened on the basis of findings of I CI and SEBI, the assessee did not submit any details of actual transactions to prove its own case. 8. The Respondent No. 1 placed reliance on the judgments of the Supreme Court in the case of Raymond Woollen M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccommodation entries. However, even though the Petitioner has explained the transactions done, through note No. 17 submitted along with the Profit and Loss Account and other supporting documents, the Respondents have mindfully taken a stand, that at this stage, they are not required to look into the sufficiency and correctness of the information and can consequently reopen the case. 13. As per section 103 of the Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person. This section amplifies the general rule in section 101 that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular fact, the onus of proving the fact, is on him, unless the burden of proving it is cast by any law on any particular person. 14. In our view, once the Petitioner provided the all the details, explanations and documents against the reasons for reopening. The AO considering the principle of shifting of onus under the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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