TMI Blog2010 (5) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity of notice under section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act") and initiation of the proceeding under sections 147 of the Act for the assessment year 2001-02. The notice under section 148 of the Act is datedMay 11, 2006, admittedly issued beyond the period of four years. The period of four years expired onMarch 31, 2006. 3. The petitioner was regularly filing returns in the status of individual. For the assessment year 2001-02, the petitioner has filed the return onOctober 31, 2001, disclosing the total income of Rs. 13,30,910. Out of the total income disclosed, the petitioner has disclosed a sum of Rs. 12,37,859 towards capital gain arising from the sale of 16,000 equity shares of M/s. Viraj Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to M/s. JRD Stock Brokers Pvt. Ltd., Darya Ganj,New Delhi. It was required from them to confirm the sale of shares of M/s. Viraj Credit Capital Ltd. M/s. JRD Stock Brokers Pvt. Ltd. vide their letter dated March 16, 2004, had confirmed that they have sold the 16,000 shares of M/s. Viraj Credit Capital Ltd. belonging to Smt. Raj Rani Gulati, Saresh Bagh, Kanpur and had made the payment through banking mode and in confirmation of this sale of shares and payment the broker has also enclosed a statement of accounts, which is open to verification. In the light of the above discussion the assessment is completed on the returned income at Rs. 13,30,910.IssueND." It appears that a search and seizure operation took place at the premises of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in the case of M/s. JRD Stock Brokers (P) Ltd., New Delhi, has, inter alia, held in para 3 as under :Shri Ashok Gupta, director of M/s. JRD Stock Brokers (P) Ltd., admitted in his sworn statement under section 132(4) that as a matter of fact, there was no actual purchase or sale of shares as reflected in such type of contract notes, which were just prepared to provide the accommodating entries. The amount of desired profit as mentioned in the contract note formed the basis of issuing the cheque of the said amount so as to give the colour of actual gain in shares to the interested party. The aforesaid finding of the Assessing Officer clearly shows that the transaction of the so-called sale of shares of M/s. Viraj Credit Capital Ltd.,Lu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner mainly submitted that, admittedly, the notice was issued beyond the period of four years. He submitted that in view of the proviso to section 147 of the Act notice under section 148 of the Act can be issued beyond the period of four years in a situation where there is failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year. He submitted that none of the aforesaid situation is available in the present case. In the present case, the assessee had filed return and had disclosed fully and truly all material facts necessary for his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment, he was not able to tell any such material. 7. We have heard learned counsel for the parties and have considered the rival submissions. 8. Section 147 of the Act reads as follows : "147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings, under this section, or recompute the loss or the depreciation allowance or any other allow-ance, as the case may be, for the assessment year concerned (here-after in this sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax ; (b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return ; (c) where an assessment has been made, but- (i) income chargeable to tax has been under assessed ; or (ii) such income has been assessed at too low a rate ; or (iii) such income has been made the subject of excessive relief under this Act ; or (iv) excessive loss or depreciation allowanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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