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2018 (3) TMI 808 - AT - Income TaxReopening of assessment - Validity of Notice u/s.148 - second notice issued - change of opinion - Held that:- the issue of notice under Section 148 of the Act is for assessment of income and not reassessment, as is normally understood. Since no assessment had taken place and no opinion has been formed on the issue on which the Assessing Officer had reason to believe that the assessee's income liable to tax had escaped assessment, it cannot be said that there has been a change of opinion. Since no opinion had been formed earlier, the question of change of opinion does not arise. The first notice issued under Section 148 of the Act on 18.4.2012 was dropped and a second notice under Section 148 of the Act was issued on 10.6.2013. This, in itself, does not constitute “Change of Opinion.” This fact comes out clearly from the Assessing Officer’s letter dt.4.6.2013 wherein AO has mentioned that the proceedings initiated by issue of the earlier notice under Section 148 of the Act dt.18.4.2012 was dropped as the reasons have not been properly recorded. Thus the issue of the second notice under Section 148 of the Act on 10.6.2013 for Assessment Year 2008-09 is valid, as all the other procedures mandated in the Act have been followed by the Assessing Officer. Also, since substantive issue in question was never examined under the proceedings in the first notice issued on 18.4.2012, the question of change of opinion does not arise. - Decided against assessee Addition of amount shown as “Share Premium” as ‘Income from other sources' - genuineness of the said transaction of purchase of 5 lakh shares of the assessee company @ ₹ 1,000 per share i.e. at a premium of ₹ 990 per share by M/s. Walden Properties Pvt. Ltd. in the year under consideration has not been established - Held that:- It is settled principle that the burden of proof lies with the assessee to prove the credits in its books of account are not its income, which onus, in our view has not been discharged by the assessee in the case on hand. Even before us, the assessee has not put forth any cogent reasons to controvert and repudiate any of the above findings rendered by the Assessing Officer. The arguments put forth by the assessee has been only to state and reiterate the principle that share premium cannot be assessed in the hands of the company. As we had already held, the facts of the case on hand are different from the facts and context in which the cited judicial pronouncements were rendered. The case on hand is one in which the Assessing Officer has examined the genuineness of the credits in the books of account, in continuation of earlier enquiries which established that the assessee is a conduit as part of a layering process. No infirmity in the decision of the Assessing Officer in holding that the receipt of ₹ 49.50 Crores by the assessee as its income under the head “Income from Other Sources” and confirm the decision of the learned CIT (Appeals) in upholding the aforesaid addition - Decided against assessee.
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