2019 (1) TMI 1072 - DELHI HIGH COURT

Reopening of assessment - BAL had transferred telecom infrastructure assets to its subsidiary and the present petitioner-BIL on 31st January, 2008 for nil consideration under a Scheme of Arrangement (‘SOA’) approved by the Delhi High Court - scheme of demerger conceived - validity of Reasons to believe - Held that:- BIL had made full and true disclosure of material facts i.e. all primary facts which are mentioned and stated in the ‘reasons to believe’ . Nothing was concealed, withheld and nothing was left to be factually discovered in the form of ‘material’ mentioned in detail in accounts and other evidence, that was not disclosed/stated but could have been discovered by due diligence. In fact as noted above, reading of the ‘reasons to believe’ i.e. evidence and material in form of facts and figures were duly stated and mentioned in the affidavit sworn by Mr. Raghuveer Singh Dagur on 12th February, 2010, opposing the second scheme of demerger and transfer of infrastructure assets in 12 circles by BIL to M/s Bharti Infratel Ventures Ltd. and language, facts and figures in the ‘reasons to believe’ are similar, if not identical.

Writ petition has to be allowed as the jurisdictional pre-conditions in the form of proviso to Section 147 is not satisfied in the facts of the present case. Explanation 1 would not apply as all primary facts were disclosed, stated and were known and in knowledge of the Assessing Officer. Further, this would be a case of ‘ change of opinion’ as the assessee had disclosed and had brought on record all facts relating to transfer of passive infrastructure, its book value, fair market value as was mentioned in the SOA as also that the transferred passive assets to become property of M/s. Indus Infrastructure Ltd. including the dates of transfer and the factum that one-step subsidiary Bharti Infratel Ventures Ltd. was created for the said purpose. These facts were within the knowledge of the Assessing Officer when he had passed the original assessment order for the Assessment Year 2008-09 on 20th December, 2010. Notice for reopning quashed - Decided in favour of assessee.