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2023 (12) TMI 500 - AT - Income TaxReopening of assessment - Addition u/s 68 - introduction of the assessee’s unaccounted funds in the guise of share capital/premium and such a transaction was to launder its own unaccounted fund - HELD THAT:- As in Aroni Commercials Ltd. [2014 (2) TMI 659 - BOMBAY HIGH COURT] as observed that once a query is raised during the assessment proceedings and the assessee has replied to it, it follows that the query raised was a subject of consideration of the assessing officer while completing the assessment. It is not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. And further their Lordship observed that if an assessing officer has to record the consideration bestowed by him on all issues raised by him during the assessment proceedings even where he is satisfied, it would be impossible for the assessing officer to complete all the assessments which are required to be scrutinized u/s 143(3) of the Act. In the light of the inquiry made by AO regarding the share capital/premium allotted/received by assessee during the original/abated/scrutiny assessment, the impugned action of AO again to examine the same alleging escapement of income tantamount to review of his own action which is not permissible; and therefore, the action of the AO to reopen the assessment by issuance of notice u/s 148 merely on the basis of “change of opinion”, cannot satisfy requirement of law u/s 147 of the Act to validily reopen the assessment. We find that AO in the reasons recorded had no tangible material in his possession to reopen the assessment, and he has resorted to reopening only after perusal of balance-sheet of the assessee regarding shares allotted on premium, which action itself vitiates the impugned reopening of assessment. Thus we find that the issue regarding share capital/premium allotted to M/s. Balaji Universal Tradelink Pvt. Ltd from whom assessee collected in the year under consideration was subjected to inquiry by AO during the original assessment and thereafter, he framed the assessment order on 30.12.2011 after consideration assessee’s reply and the AO’s action of not making any adverse finding on this issue, implies that AO has accepted the explanation of assessee on this issue. Right or Wrong the action of AO could not have been reviewed by AO himself after reopening the assessment u/s 147 of the Act. May be the Ld. PCIT could have initiated revisional proceeding u/s 263 of the Act. And moreover, we note that year under consideration is AY 2009-10 and share /premium could not have been brought to tax because share premium was brought to tax only w.e.f. 01.04.2013 as held in the case of Gagandeep Infrastructure Pvt. Ltd [2017 (3) TMI 1263 - BOMBAY HIGH COURT] wherein held that share premium can be brought to tax only w.e.f. 1st April, 2013. Therefore, the action of AO to reopen the assessment of assessee cannot be sustained. Decided in favour of assessee.
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