SHRI.RAJENDRA KUMAR,BANGALORE vs. INCOME TAX OFFICER, BANGALORE

Per Sunil Kumar Yadav, Judicial Member

This appeal is preferred by the assessee against the order of

CIT(A), interalia, on the following grounds:

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2.1 In any case, the conditions precedent for the issue of notice u/s. 148 of the Act being absent, the re-opening of assessment becomes bad in law and consequently the order as passed/confirmed being also bad in law is required to be quashed. 2.2 In any case, the impugned order passed without complying the legal formalities required u/s 147 of the Act, become bad in law and is required to be quashed. 3.1 In any case the order passed in gross violation of the principles of natural justice and fair play, especially in the absence of the cross examinations of the persons whose averments are sought to be relied upon by the Assessing Officer while passing the order, make the order totally bad in law and liable to be cancelled.

3.2 The learned Commissioner of Income tax (Appeals) has instead of quashing the impugned order on the above grounds, has just confirmed the order of Assessing Officer without properly considering the fact and circumstances of the case, arguments of the appellant and the law applicable. 3.3. In any case and without prejudice, the orders passed by the authorities below being contrary to binding dictum of the jurisdictional High Court are bad in law and are liable to be quashed. 4. The assessing officer had in any case, erred in treating a sum of Rs. 9,75,066/-as Short term capital gain (ignoring loss and STT) earned on sale of shares and taxing the same under the head 'Income from other sources' and the learned Commissioner of Income tax (Appeals) has erred in confirming the same. The action of authorities below has no support in law; is contrary to facts and evidence available. Such a treatment deserves to be rejected totally. 5.1 In any case and without further prejudice, the authorities below have erred in: a) taxing/confirming an adhoc figure as Short term capital gain earned on sale of shares as income under the head other sources. b) Not considering the fact that the appellant had earned Short Term Capital Gain on sale of shares and same was offered to taxation c) Holding without basis that the transactions in shares are fraudulent. d) Alleging without any basis that the appellant has obtained accommodation entries and appellant’s own money come back in the guise of capital gains. The conclusions / observations of authorities below being totally erroneous and without basis both on facts and law is to be disregarded.

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5.2 In any case and without prejudice, the addition as made/sustained is erroneous and excessive.

5.3 The several observations made and various conclusions drawn by the lower authorities in the course of order are without basis and evidence and are made/drawn on surmises, probabilities and conjectures. Such observations and conclusions by quasi-judicial authorities have no support in law and deserve to be rejected in toto. 6. The appellant had actually sold shares through demat account and had earned Capital Gain thereon and same needs to be accepted as such. 7. The appellant denies the liability to pay interest. The interest having been levied erroneously is to be deleted. 8. In view of the above and other grounds to be adduced at the time of hearing it is requested that the impugned order be quashed or atleast the income from Short Term Capital Gain as returned be accepted, the assessment of adhoc figure as Income from Other Sources be deleted and the interest levied be also deleted.

Through ground Nos. 1 and 2, the assessee has assailed the 2.

validity of the reopening of the assessment on the ground that

reopening was done after 4 years from the end of the relevant

assessment year without recording his satisfaction in the reasons for

reopening that income chargeable to tax has escaped assessment for

such assessment year by reason of the failure on the part of the

assessee to disclose fully and truly all material facts necessary for the

assessment on the part of the assessee. The learned counsel for the

assessee further invited our attention to the fact that assessment year

involved in 2008-09 and the reopening was done by issuing the notice

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Page 4 of 9 under section 148 of the Act on 03.10.2013. The time of 4 years for

reopening the assessment was available upto 31.03.2013. Therefore,

the reopening was done after 4 years. He further invited our attention

to the reasons recorded for reopening the assessment which are

available at page No. 125 of the compilation of the assessee. In the

reasons recorded for reopening the assessment, there was no averment

with regard the satisfaction of the AO that income chargeable to tax

has escaped assessment by reason of failure on the part of the assessee

to disclose fully and truly all material facts necessary for the

assessment for that assessment year. Therefore, the reopening is bad in

law. In support of his contentions, he has invited our attention to

judgments of jurisdictional High Court in the case of CIT Vs. Mysore

Cements Ltd, 355 ITR 136 in which it has been held that if conditions

stipulated in part II of the proviso do not exist, then, when the

assessment order passed under sub-Section 3 of Section 143, no action

can be taken under section 147 of the Act after the expiry of 4 years

from the end of relevant assessment year. The learned counsel for the

assessee further contended that for making verification or enquiry, the

assessment cannot be reopened. In support of his contention, he placed

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Page 5 of 9 reliance upon the judgment of jurisdictional High Court in the case of

Shri. C. M. Mahadeva Vs. CIT in ITA No. 79/2009 dated 24.08.2015.

the order of the CIT(A) with the submission that the assessment was

reopened on the basis of the statement recorded during the course of

search upon Choksi Group in which it has been reposed that they were

engaged in providing accommodation and the assessee is also one of

the beneficiary. Therefore, the reopening is valid.

and the documents on record, in the light of rival submissions, I find

that undisputedly, the assessment year involved is 2008-09 and the 4

years for reopening of the assessment without recording a satisfaction

that income chargeable to tax has escaped assessment on account of

failure on the part of the assessee to disclose truly and fully the

material facts for the assessment was available only upto 31.03.2013.

Thereafter if the AO intent to reopen the assessment, he is required to

record satisfaction in the reasons that income chargeable to tax has

escaped assessment by reasons of the failure on the part of the assessee

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Page 6 of 9 to disclose fully and truly all material facts necessary for the

assessment for that assessment year. Undisputedly, the reopening was

done after 4 years from the end of the relevant assessment year and the

AO is required to record his satisfaction that the income chargeable to

tax has escaped the assessment on account of the failure on the part of

the assessee to disclose fully and truly all material necessary for the

assessment. For the sake of reference, we extract section 147 and its

first proviso as under:

“147. If the [Assessing] Officer [has reason to believe] that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped proceedings under this section, or recomputed the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year):

reopening the assessment but in the entire reasons there is no averment

with regard to escapement of income chargeable to tax by reasons of

the failure on the part of the assessee to disclose fully and truly all

material facts necessary for assessment for that assessment year. For

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Page 7 of 9 the sake of reference we also extract the reasons recorded by the AO

for reopening the assessment:

“On verification of the records it is noticed that the assessee had purchased and sold shares amounting to Rs.1,18,850/- and Rs.8,90,720/- respectively and earned profit of Rs.7,71,870/- during the accounting year relevant to A. Y. 2008-09. Verification of correct capital gains and the correctness of cost of shares and sale of shares consequent on search operation in Mahasagar Group of cases is required. During the course of search one Mr. Mukesh Chokshi Director of M/s. Mahasagar Securities Ltd., has interalia stated that his business activities is to provide accommodative entries for Short- term Capital Gains, Long-term Capital Gains, purchase and sales, Share application money etc. and consequently profit would be accommodated to the beneficiaries and he has further stated that the Bills given are not genuine which are issued without any actual transaction. The list of beneficiaries have been provided and assessee is also one such beneficiary.”

various jurisdictional pronouncements including the judgment of

jurisdictional High Court in the case of CIT V. Mysore Cements Ltd

(supra) in which it has been categorically held that if conditions

stipulated in part II of the proviso do not exist, then, when the

assessment order passed under sub-Section 3 of Section 143, no action

can be taken under section 147 of the Act after the expiry of 4 years

from the end of relevant assessment year.

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Page 8 of 9 7. In the instant case, admittedly, the assessment was reopened

after 4 years without recording any averment that income chargeable to

tax has escaped the assessment on account of failure on the part of the

assessee to disclose fully and truly all material facts necessary for the

assessment for the impugned assessment year. Therefore, the

reopening in the instant case is not valid. Since reopening is not valid,

the assessment framed consequent thereto is not sustainable in the eyes

of law. I accordingly knock down the assessment framed consequent

to the bad reopening and delete the additions made therein. Since I

have knocked down the reopening of the assessment, I find no

justification to deal with other issues on merit.

Pronounced in the open court on 19th May, 2017.

Sd/- (SUNIL KUMAR YADAV) Judicial Member Bangalore. Dated: 19th May, 2017. /NShylu/*

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Copy to: 1. Appellants 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT, Bangalore. 6. Guard file

By order

Assistant Registrar, ITAT, Bangalore.