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TMI Blog2023 (9) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... Y/2023 is directed at the instance of the assessee against the order of the Learned Commissioner of Income Tax (Appeal), Central, North-East Region, Guwahati, (hereinafter the "ld. CIT(A)") dt. 24/04/2023, passed u/s 250 of the Income Tax Act, 1961 ("the Act'), for Assessment Year 2015-16. 2. As the issues involved in all these appeals are identical, they were heard together and are being disposed off by way this common order for the sake of convenience and brevity. 3. First we take up the assessee's appeal in ITA No. 69/GTY/2023 for Assessment Year 2015-16. 4. Though the assessee has raised as many as eleven (11) grounds of appeal, we would like to adjudicate Ground No. 3, which goes to the very root of the matter challenging the re-opening of assessment u/s 148 r.w.s. 147 of the Act. The grounds reads as follows:- "3. For that on the facts of the case, the Ld. CIT(A) was wrong in not considering the facts that the A.O. reopening the assessment u/s 148 (r.w.s 147) initiated on 31.03.2021, although the assessment was completed u/s 143(3) on 29.12.2017 on the same set of facts after a lapse of 4 years without any concreted evidences and all material facts truly and fully disclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e additional condition precedent as laid down in the first proviso to section 147 of the Act namely, that the assessee had failed to disclose fully and truly all material facts necessary for assessment of income that assessment year. 8. We note that in this case original assessment was completed under Section 143(3) of the Act and such concluded assessment when sought to be reopened beyond four years, it is not only necessary for the AO to form reasonable belief that income had escaped assessment as envisaged in Section 147 of the Act but additionally he has to show that such escapement occurred as a result or consequence of assessee's failure to disclose truly and fully all facts necessary for assessment. It is to be kept in mind that the AO after obtaining information and documents from the assessee cannot supplement/supplant his conclusion about assessee's failure to disclose truly and fully material facts, if the recorded reasons do not refer to such failure. In the circumstances, where the AO initiates the reassessment proceedings beyond four years from the end of the relevant assessment year, then the AO is duty bound to demonstrate in his reasons recorded prior to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the assessment was completed u/s 143(3) and thereafter the AO received the information from Investigation Wing that the assessee has received bogus loans in the form of accommodation entries and on that basis the case of the assessee was reopened. In the case of Rajivraj Ranbirsingh Choudhary vs ACIT ((79 taxmann.com 152) (Guj HC) the Hon'ble Gujarat High Court has laid down the same ratio. In this case the assessment was framed u/s 143(3) of the Act and the AO accepted the loans taken by the assessee from the family members. The assessment was reopened after a period of more than 4 years on the ground that sources of loan funds were not explained. 11. In view of the above discussion and respectfully following the ratio of law laid down by the Hon'ble Bombay High Court as discussed above, we hold that the reopening is bad in law, in view of the Proviso to section 147 of the Act, as the reopening is beyond 4 years from the original assessment u/s 143(3) of the Act. As, we have discussed and decided the legal issue in favour of the assessee and the re-assessment order u/s 147 r.w.s. 144 of the Act, itself has attained nullity, the grounds on merits are only academic in nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reply on or before 05/12/2016, but the same was not complied with by the assessee and finally the Assessing Officer disallowed the said loss of Rs. 2,02,55,160/- in the assessment order framed u/s 143(3) of the Act dt. 23/12/2016. 15. The ld. A/R vehemently argued before us that the assessee has filed before the authorities below, the necessary details/evidence, proving the share transactions done on the stock exchange through listed brokers. The assessee has filed copies of contract notes/DMAT accounts, bank statements to evidence that purchases were made through stock exchange and similarly, the sales were also carried out on the registered stock exchange platform. The ld. A/R submitted that when the transactions have been carried out through listed brokers, then the conclusion of the authorities below that the said loss from sale of shares was bogus and not genuine is unverified and without any substantive corroborative material. The ld. A/R submitted that the order passed by the ld. CIT(A), upholding the action of the Assessing Officer is erroneous as it has failed to follow the decisions of various judicial forums on this subject. 16. The ld. A/R in defense of his argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed are concerned, the ld. D/R submitted that though the contrary decisions are available of various Hon'ble High Courts, however, the Hon'ble Calcutta High Court in the case of Swati Bajaj (supra) has decided the issue against the assessee under similar facts, therefore, the appeal of the assessee may kindly be dismissed by upholding the order of the ld. Assessing Officer. 18. We have heard rival contentions and perused the material available on record. It is also undisputed that these shares were purchased from the stock exchange platform through registered broker and the payment was made through cheque and similarly the sale was also effected through registered broker on stock exchange platform and payment was made through banking channel. The assessee has furnished before the AO all the requisite evidences in form of contract notes, details of payment and copy of D-mat a/c etc. to prove these transactions. We have also perused and analyzed the decisions passed by the Hon'ble Bombay High Court in the case of PCIT v. Indravadan Jain, HUF (supra) and Hon'ble Orissa High Court in the case of PCIT vs. Dipansu Mohapatra (supra), wherein the issue has been decided in favour of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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