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2019 (10) TMI 1079 - GUJARAT HIGH COURTReopening of assessment u/s 147 - validity of the notice issued by the respondent u/s 148 - reopening the assessment beyond the period of 4 years - HELD THAT:- Indisputably, the impugned notice issued by the AO itself is beyond the period of four years from the end of the relevant assessment year and did not comply with the requirements of the proviso to Section 147. AO had no jurisdiction to reopen the assessment proceedings which were concluded on the basis of the assessment u/s 143(3) and therefore, on this short count alone, the impugned notice is liable to be quashed and set-aside. We have reached to the conclusion that there is no basis to proceed on the premise that the allocation of shares was at an artificially high premium. Merely because a sizeable sum was received in the nature of share premium during the year under consideration, would not automatically mean that the same was artificially increased. The duty on the part of the assessee to explain the nature of credits and genuineness and justification of the share premium would arise when called upon during the assessment or validly reopened assessment. At any rate, the reopening of assessment which was framed after the scrutiny would not be permissible for a fishing or roving inquiry. As observed by this Court in Pushpak Bullion (P.) Ltd. [2016 (7) TMI 176 - GUJARAT HIGH COURT] this is not to suggest that after the original assessment was completed, if the Assessing Officer has tangible material to form a belief that the allocation of shares at a premium was a mere device to route some unaccounted money of the company or that the genuineness and creditworthiness of the investors was doubtful, the reopening could not have been resorted to. In the case on hand, we find the vital link missing from the reasons recorded, such link being the material at the command of the Assessing Officer to form such a belief. - Decided in favour of assessee.
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