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Income Tax Officer,6(3)(4), Mumbai vs Knowell Enterprises Private Limited, ... on 27 February, 2019
cites
Section 68 in The Income Tax Act, 1961 [Entire Act]
Section 148 in The Income Tax Act, 1961 [Entire Act]
Section 263 in The Income Tax Act, 1961 [Entire Act]
Section 139 in The Income Tax Act, 1961 [Entire Act]
Section 153 in The Income Tax Act, 1961 [Entire Act]
Section 156 in The Income Tax Act, 1961 [Entire Act]
Central Provinces Manganese Ore. Co. ... vs I.T.O Nagpur on 20 August, 1991
In Mahanagar Telephone Nigam
Ltd. v. Chairman, CBDT [2000] 246 ITR 1731 the Hon'ble Deihi
High Court, referring to the judgment of the Supreme Court in
Central Provinces Manganese Ore Co. Ltd. v. ITO [1991] 191 ITR
6622 held that at the time of initiation of action to reopen the
assessment (by issuing notice under section 148) the final
outcome of the proceeding is not relevant and what is required is
"reason to believe" but "not the established fact of escapement of
income". It was held that at the stage of issue of notice, "the only
question is whether there was relevant material on which a
reasonable person could have formed a requisite belief. Whether
the materials would conclusively prove the escapement is not the
concern at that stage". Therefore, there is no force in the
submission of the learned counsel for the assessee that the
Assessing Officer had not held any enquiry into the veracity of the
letter received from the CIB or had not conducted an investigation
to check the allegation in the letter before issuing the notice.
Commissioner Of Income Tax vs M/S Gagandeep Infrastructure Pvt Ltd on 2 April, 2018
Thus, based on our detailed discussions as above, we have no
hesitation in upholding invocation of provisions of Section 147
of the 1961 Act for reopening of the concluded assessment
based on factual matrix of the case as discussed in details as
above and we overturn the decision of learned CIT(A) on the
legal ground of reopening of concluded assessment by
invocation of provisions of Section 147 of the 1961 Act and hold
that invocation of provisions of Section 147 of the 1961 Act was
correctly undertaken by the AO and the AO was having reasons
to believe that income has escaped assessment and they were
not merely reason to suspect. At the stage of invocation of
provisions of Section 147 of the 1961 Act for reopening of the
assessment, it is not the water tight proof which is
required that income has escaped assessment to re-open the
case u/s 147 but a prima facie bonafide belief that the income
has escaped assessment. In this case before us, the assessment
was never originally framed u/s 143(3) of the 1961 Act but
return of income was processed u/s 143(1) of the 1961 Act and
the reopening is sought to be done within four years from the
end of the assessment. Thus, we hold reopening u/s 147 as
was done by the AO to be valid and set aside the appellate
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I.T.A. No.4648/Mum/2017
order of learned CIT(A). However ,so far as merits of the issues
are concerned, we have observed that learned CIT(A) has on the
one hand has stated that since the issue is decided by her on
legal ground wherein reopening of the assessment was
considered as invalid and bad in law , thus, there is no reason
for her to adjudicate the issue on merits and at the same
breath she has placed reliance on decision of Hon‟ble Bombay
High Court in the case of CIT v. Gagandeep Infrastructures
Private Limited in ITA no. 1613 of 2014, order dated
20.03.2017 to allow grounds of appeal raised by the assessee
challenging assessment order on the merits of the issue. The
learned CIT(A) passed a very cryptic order which in our opinion
is not sustainable in the eyes of law as the learned CIT(A)
whose powers are co-terminus with the powers of the AO is
required to adjudicate on the factual matrix of the case keeping
in view provisions of Section 68 of the 1961 to see whether
evidence on record satisfy the ingredients of provisions of
Section 68 of the 1961 Act as to identity and creditworthiness
of the subscribers and genuineness of the transaction of
raising of share capital and share premium. Thus, on merits
also the appellate order passed by learned CIT(A) is not
sustainable in the eyes of law and we set aside the same on
merits too. Thus, we are setting aside the issues in this appeal
on merits to the file of learned CIT(A) for denovo adjudication of
the issue of raising share capital and share premium to be
adjudicated keeping in view provisions of Section 68 and all
other relevant provisions of the 1961 Act. Needless to say that
the learned CIT(A) shall provide proper and adequate
opportunity of being heard to the assessee in denovo
adjudication proceedings in accordance with law in accordance
with principles of natural justice. The learned CIT(A) shall allow
assessee to file necessary and relevant evidences/explanations
in its defence in denovo adjudication proceedings in
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I.T.A. No.4648/Mum/2017
accordance with law. The Revenue appeal is allowed as
indicated above. We order accordingly.
Pcit vs M/S. J.D. Marketing Pvt. Ltd on 31 July, 2018
25. For the reasons discussed in the preceding paragraph, we are
satisfied that the judgement in the case of Steller Investment (supra)
has no manner of application to the facts and circumstances of this
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I.T.A. No.4648/Mum/2017
case. The question as to whether there has been a device adopted for
money laundering also did not crop up for consideration in that case.
The Prevention of Money Laundering Act, 2002 was not also
there on the statute at that point of time.