Mundra House, 822-A, Shivaju Nagar, Civil Lines, jaipur-302006 9314501680, 9314501791

B.P.Mundra

मानवता से काम करें मन के सारे काम अपने आप हो जायेंगे

इस महीने के इम्पोर्टेंट काम
  • Home
  • GST
  • Cases Income tax
  • MCA
  • Subsidy
  • TDS
  • About Us
  • contact us
  • Login
    • Admin Login
    • Staff Login
    • User Login
  • Loan
  • Apply for job
  • Click Here
  • HOW TO
  • To file ITR for AY 2022-23 kindly give details (and also evidence if yes) of following
  • Categories
    • Articles
    • Authority
    • Benami Transactions (Prohibition)
    • client
    • Constitution of India
    • Finance Act 1994
    • formalities to be completed
    • GST
    • Happiness
    • HOW TO
    • Income Tax
    • Indian Evidence Act 1872
    • Job Application
    • MCA
    • Office system
    • Papers required for filing
    • Principal of mutuality
    • rajasthan public trust
    • Smile
    • Subsidy
    • work report

B.P.MUNDRA

Mundra House, 822-A, Shivaju Nagar, Civil Lines, jaipur-302006 9314501680, 9314501791


Consequences when reassessment is based on a reconsideration of material already available on record at the time of the original assessment proceedings? The BOMBAY HIGH COURT passed the order in the case of Infinity.Com financial securities Ltd. v. ACIT on 20 December, 2021. Section 147,148, 143(3)

B.P.Mundra > Income Tax > Cases Income tax > 143(3) > Consequences when reassessment is based on a reconsideration of material already available on record at the time of the original assessment proceedings? The BOMBAY HIGH COURT passed the order in the case of Infinity.Com financial securities Ltd. v. ACIT on 20 December, 2021. Section 147,148, 143(3)

admin January 6, 2022 0 Comments

143(3), 147, 148

change of opinion, Consequences when reassessment is based on a reconsideration of material already available on record at the time of the original assessment proceedings, reassessment, reassessment order, reassessment order is not sustainable, Reassessment Order quashed

Loading

Consequences when reassessment is based on a reconsideration of material already available on record at the time of the original assessment proceedings? The BOMBAY HIGH COURT passed the order in the case of Infinity.Com financial securities Ltd. v. ACIT on 20 December, 2021. Section 147,148, 143(3)

 

Kindly click the link to get full order

 

Author FCA B.P. Mundra  Mobile 9314501680, 70141 24100
Email [email protected] url www.bpmundraca.com

Senior Partner

 

  1. Mundra & Co.‎
  2. Chartered Accountants
    ‎822 A, Mundra House, Shivaji Nagar, Near Hanuman Temple, Civil Lines, Jaipur‎-302006
    No. (O) 2225110, 2225116, 2224085

 

Section 147,148, 143(3)

Reassessment based on a reconsideration of material already available on record at the time of the original assessment proceedings tantamounts to a change of opinion and would be invalid.

 

IN THE BOMBAY HIGH COURT

K.R. SHRIRAM & AMIT B. BORKAR, JJ.

Infinity.Com financial securities Ltd. v. ACIT

Writ Petition No.3497 of 2019 20 December, 2021

In favour of assessee.

Petitioner by: Jeet Kamdar & Sameer G. Dalal Respondents by: Suresh Kumar

PC

  1. Petitioner is impugning a Notice dated 30-3-2019issued under section 148 of the Income Tax Act, 1961 (the said Act) for assessment year 2012-13 and Order dated 15-10-2019 rejecting the objections.
  2. The notice having been issued after expiry of four years, proviso to section 147 of the said Act is applicable. There is nothing in the reasons to indicate that there has been failure on the part of petitioner to truly and fully disclose any material fact. No reply has been filed though time to file reply was granted on 18-12-2019.
  3. In the reasons, it is stated that office of Respondent No. 1 received beneficiaries information in the case of one M/s. Divine Multimedia (India) Ltd., a Penny Stock Company from DDIT (Inv) Unit 7 (3), Mumbaithrough email dated 28-3-2019. On persual of the same, it is seen that the assessee has indulged in creating fictitious Long-Term Capital Gain/Loss/Short-Term Capital Gain on purchase and sale of penny stocks during the year and the company on which petitioner has illegitimate activity of booking of bogus profit/loss was M/s. Divine Multimedia (India) Ltd. The amount of profit is Rs. 1,53,56,887.
  4. During the course of original assessment proceedings, the assessing officer had, by a Letter dated 6-1-2014, called upon petitioner to furnish in the format prescribed therein details of investments along with detail pertaining to the method adopted by petitioner for the valuation of the closing balance of investment, details of share trading (own account) for delivery based and non-delivery based transactions separately and also submit the detail pertaining to the method adopted by petitioner for the valuation of the closing stock, short-term capital gains and long-term capital gains. In reply, petitioner provided these details including the date on which it purchased the shares of M/s. Divine Multimedia (India) Ltd., the date on which the shares were sold and the capital gain/loss made. In fact petitioner has shown a capital gain of Rs. 70,33,024 and the value of the shares sold of M/s. Divine Multimedia (India) Ltd. was Rs. 1,53,56,886. M/s. Divine Multimedia (India) Ltd. was earlier called as Kalidoscope Films Ltd. Petitioner had made available this information before the assessing officer, who after considering the same has passed the assessment order.
  5. Mr. Suresh Kumar relied upon a judgment of this Court in Crompton Greaves Ltd. v. Asstt. CIT, Circle 6 (2) (2015) 55 taxmann.com 59 (Bombay) : 2015 TaxPub(DT) 0546(Bom-HC) to submit that even if the reason for reopening does not specifically state that there was any failure on the part of petitioner to disclose fully and truly all material facts necessary for its assessment for the relevant assessment year, it will not be fatal to the assumption of jurisdiction under sections 147 and 148 of the Act. We would certainly agree with Mr. Suresh Kumar but as held in Crompton Greaves Ltd. (Supra), this is subject to the rider that there must be cogent and clear indication in the reasons supplied, that in fact there was failure on the part of the assessee to disclose fully and truly all the material facts necessary for its assessment. If the factum of failure to disclose can be culled down from the reasons in support of the notice seeking to reopen assessment, that will certainly not be fatal to the assumption of jurisdiction under sections 147 and 148 of the Act. The Court held “However, if from the reasons, no case of failure to disclose is made out, then certainly the assumption of jurisdiction under sections 147 and 148 of the Act would be ultra-vires, being in excess of the jurisdictional restraints imposed by the first proviso to section 147 of the Act”.

The assessing officer had all materials facts before him when he made the original assessment. When the primary facts necessary for assessment are fully and truly disclosed, the assessing officer is not entitled on change of opinion to commence proceedings for reassessment. Even if the assessing officer, who passed the assessment order, may have raised too many legal inferences from the facts disclosed, on that account the assessing officer, who has decided to reopen assessment, is not competent to reopen assessment proceedings. Where on consideration of material on record, one view is conclusively taken by the assessing officer, it would not be open to reopen the assessment based on the very same material with a view to take another view.

  1. Therefore, all material facts had been disclosed by petitioner in the course of the regular assessment proceedings and the reasons recorded for initiation of reassessment too give reference only to the details already submitted by petitioner in the course of the original assessment proceedings and nothing more. It is a well settled judicial principle that the true test of income chargeable to tax escaping assessment is whether there exists fresh “tangible material” on the basis of which an appropriate conclusion can be reached. In the absence of such fresh material, the reassessment proceedings would be invalid. This principle has been upheld by the Hon’ble Supreme Court and the jurisdictional High Court in various rulings. This Court has held that reassessment based on a reconsideration of material already available on record at the time of the original assessment proceedings tantamounts to a change of opinion and would be invalid. Further, since the relevant facts, which were already on record at the time of the original assessment proceedings, also form the basis for the initiation of the subject reassessment proceedings, it is amply clear that there was no fresh material that could have come to the notice of Respondent No. 1 to warrant reopening of assessment. Information received from DDIT (Inv.) regarding petitioner indulging in illegitimate activity of booking bogus profit/loss on scrip of M/s. Divine Multimedia (India) Ltd. would not by itself constitute any fresh material for reopening assessment. Information received from DDIT (Inv.) has already been examined and inquired into by Respondent No. 1 in the original assessment proceedings where after submitting various details with regard to details of investments, details of short-term capital gains and long-term capital gains the same had been satisfactorily explained and accepted by Respondent No. 1.
  2. In our view, the Notice dated 30-3-2019issued under section 148 of the said Act is issued without jurisdiction and requires to be set aside. The consequential Order dated 15-10-2019 also requires to be set aside.
  3. Therefore, the Notice dated 30-3-2019and Order dated 15-10-2019 are quashed and set aside.
  4. Petition disposed.
Total Page Visits: 2657 - Today Page Visits: 1

← Previous post

Next post →

Leave a Comment

Your email address will not be published. Required fields are marked *

Categories

  • 1860 (1)
  • 1956 (1)
  • 1973 (1)
  • 2002 (1)
  • 2013 (1)
  • Articles (78)
  • Authority (1)
  • Benami Transactions (Prohibition) (1)
  • client (59)
  • Code of Criminal Procedure (0)
  • Companies Act (2)
  • Constitution of India (2)
  • Cr.P.C. (2)
  • Due dates (1)
  • Finance Act 1994 (0)
  • formalities to be completed (6)
  • GST (59)
  • Happiness (4)
  • HOW TO (47)
  • HUF Property (1)
  • Income Tax (310)
  • Indian Evidence Act 1872 (1)
  • Indian Penal Code (1)
  • invalid notice (1)
  • Job Application (0)
  • MCA (3)
  • Notice 148 (0)
  • Office system (9)
  • Papers required for filing (6)
  • PMLA Act (1)
  • Prevention of Money Laundering Act (1)
  • Principal of mutuality (1)
  • rajasthan public trust (2)
  • Smile (7)
  • Subsidy (5)
  • work report (2)
  • Archives

    • February 2025
    • January 2025
    • July 2024
    • October 2023
    • September 2023
    • July 2023
    • April 2023
    • March 2023
    • February 2023
    • January 2023
    • December 2022
    • October 2022
    • September 2022
    • August 2022
    • July 2022
    • June 2022
    • May 2022
    • April 2022
    • March 2022
    • February 2022
    • January 2022
    • December 2021
    • November 2021
    • September 2021
    • August 2021
    • July 2021
    • June 2021
    • May 2021
    • April 2021
    • March 2021
    • February 2021
    • January 2021
    • December 2020
    • November 2020
    • October 2020
    • September 2020
    • August 2020
    • July 2020
    • June 2020
    • May 2020
    • April 2020
    • March 2020
    • February 2020
    • January 2020
    • December 2019
    • November 2019

    Recent Posts

    • GST registration: को-ओनर जिसके नाम से बिजली का बिल है को GST Registration के लिए दूसरे ऑनर से एनओसी लेने की आवश्यकता नहीं है। FCA BPMUNDRA
    • FCA BPMUNDRA 9314501680 [email protected] क्या आयकर नोटिस 148 को इशू का नोटिस धारा 149 के अनुसार उस समय माना जाएगा जब वह नोटिस धारा 282 रूल 127 के प्रावधान के अंतर्गत प्रिसक्राइब्ड मोड ऑफ सर्विस पुरी की जाए। दिल्ली हाई कोर्ट ने 21 फरवरी 2025 मारुति सुजुकी की अपील को स्वीकार करते हुए धारा 148 में इशू नोटिस को इस आधार पर रद्द कर दिया कि नोटिस भले ही 31 मार्च 2016 को डिजिटल साइन हो गया लेकिन इश्यू 1 अप्रैल 2016 time barred होने के बाद को हुआ। Section 148, Section 282, Section 127, Section 149, time barred, notice, Delhi High Court, Quash, Quashed, Annulled
    • टीडीएस अमाउंट ज्यादा भर दिया है तो उसका रिफंड क्लेम करने के लिए जो सीबीडीटी ने 2 साल का लिमिटेशन पीरियड सर्कुलर से तय किया है के आधार पर आईटीओ रिफंड देने का मना नहीं कर सकता। यह सर्कुलर अल्ट्रा वायर्स दिल्ली हाई कोर्ट ने 31 जनवरी 2025 के फैसले में घोषित किया है। FCA BPMUNDRA
    • Rectify the filed GSTR-1 return in order to get ITC benefit
    • Whether claim of exemption under section 54F is allowable for capital gain on sale of shares which was sold in lieu of plot and construction and thereafter assessee made further payment towards remaining construction. The permission of transfer of property was not obtained in the time period as available in section 54F. ITAT KOLKATA allowed the deduction u/s 54F in the case of Basabdutta Dutta v. ITO vide IT APPEAL NO. 868 (KOL.) OF 2023 [AY 2014-15] on dated 11.07.2024. FCA BPMUNDRA 9314501680