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TMI Blog2024 (2) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order u/s 143(3) was passed, the then AO was in possession of the transaction details through M/s.Divya Commodities and thereby, the same cannot be made subject matter again to assume jurisdiction under Section 148 of the Act for reopening of assessment, as the same has already been concluded. Thus, reopening on the basis of the same details is nothing but change of opinion and the same is not permissible in the eye of law. Decided in favour of assessee. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA and HONOURABLE MR. JUSTICE NIRAL R. MEHTA MR MANISH J SHAH(1320) FOR THE PETITIONER(S) NO. 1 MR KARAN SANGHANI FOR MRS KALPANA K RAVAL(1046) FOR THE RESPONDENT(S) NO. 1 ORDER ( PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA ) 1. Since all the aforesaid matters are arising from similar orders and on similar ground, the same are being disposed of by this common order, by treating the Special Civil Application No.18632 of 2018 as a lead matter and the facts stated therein are recorded as under. 2. The petitioner assessee by way of this petition under Article 226 of the Constitution of India seeks to challenge the notice under Section 148 of the Income-Tax Act, 1961 (for short the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner file his response stating that the return for the Assessment Year 2011-12 has already been filed vide acknowledgment No.283721631130911 and the same has been requested to be considered as return filed under Section 148 of the Act, with a further request to the Assessing Officer to supply the copy of reasons recorded for reopening of assessment under Section 147 of the Act. In response thereof, the respondent forwarded a copy of reasons vide letter dated 11.10.2018. 3.7 The petitioner vide letter dated 31.10.2018, raised detailed objections against the reopening of assessment case. However, the respondent vide order dated 5.11.2018 disposed of the objections filed by the petitioner, justifying opening of reassessment under Section 147 of the Act. 3.8 Being aggrieved and dissatisfied by the aforesaid, the petitioner has approached this Court by way of this petition for the appropriate reliefs. 4. We have heard learned advocate Mr.Manish J. Shah for the petitioner and learned advocate Mr.Karan Sanghani for the respondent. 4. Learned advocate Mr.Manish J. Shah for the petitioner, while assailing the impugned notice, has made the following submissions : (1) Learned advocate Mr.Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be vitiated as the said mistake would not cause any prejudice to the petitioner. Learned advocate further submitted that the material facts which have come to the knowledge of the department after the scrutiny assessment in respect of transaction made with M/s.Divya Commodities was neither disclosed by the petitioner voluntarily nor was subjected to examination by the Assessing Officer during the scrutiny assessment and thereby, the impugned notice under Section 148 of the Act is tenable in the eye of law. (3) Learned advocate Mr.Sanghani submitted that the trading activity through M/s.Divya Commodities of Rs.19,45,15,466/- and earned profit of Rs.75,85,610/- have come into possession of department after completion of scrutiny assessment and thereby, issuance of notice under Section 147 of the Act is based on new and/or tangible material which were not fully and truly disclosed by the petitioner at the time of original assessment and accordingly, present petition deserves to be dismissed. 6.1 By making above submissions, learned advocate Mr.Raval urged this Court to dismiss the present petition. 7. We have heard the learned advocates appearing for the respective parties and hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thereby extracted as under : 5. Finding of the AO :- On verification of ITBA, it is seen that the assessee has filed his return of income for A.Y 2011-12 but not shown the correct income. Further, based on the information received from the ADIT, it is seen that the Shri Hemanshu Ramaniklal Shah (Client Code 1=H041) is also bought commodities of Rs. 18,69,29,856/- and sold for Rs. 19,45,15,466/- the commodity through broker Divya Commodities (Broker code CL0185) during the F.Y 2010-11. The assessee has claimed exempt income of Rs. 1,26,360/-. Since, all the commodity trading done through the brokers Divya Commodities through NMCE are artificial and non genuine, therefore, the profit/loss arisen from trading of commodity through NMCE are escaped assessment. As such it is evident/reason to believe that the assessee has not shown correct income for he year under consideration, which is nothing but escaped income in the hands of the assessee. 6. Basis of forming reason to believe and details of escapement of income: On verification of ITBA, it is seen that the assessee has filed his return of income for A.Y 2011-12.Shri Hemanshu Ramaniklal Shah (Client Code 1-H041) is also bought Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the year under consideration and hence, in view of the above facts and materials, I have reason to believe that an amount of Rs.75,85,610/- has escaped assessment within the meaning of section 147 of the Act for A.Y.2011-12. Since, all the commodity trading done through the brokers Divya Commodities through NMCE are artificial and non genuine, therefore, the profit/loss arisen from trading of commodity through NMCE are escaped assessment. I am therefore, satisfied that this is a fit case for invoking the provisions of section 147 of the Income tax Act. 8. Applicability of the provision of section 147/151:- In this case, return of income was filed for the year under consideration but no scrutiny assessment u/s. 143(3) of the IT. Act was made. Accordingly, in this case, the only requirement to initiate proceedings u/s.147 is reason to believe which has been recorded above (refer paragraphs 1 to 7 above). 9. It is pertinent to mention here that in this case the assessee has filed return of income for the year under consideration but no assessment as stipulated u/s. 2(40) of the Act was and the return of income was only processed u/s. 143(1) of the I. T. Act. In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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