TMI Blog2010 (9) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee or assessee remains the benami owners thereof and is in the control and possession of those shares etc - This is even not recorded in the 'Reasons to Believe' by the Assessing Officer - Appeal are accordingly dismissed - 986 AND 989 OF 2005 - - - Dated:- 30-9-2010 - A.K. SIKRI, MS. REVA KHETRAPAL, JJ. Ms. Prem Lata Bansal for the Appellant. Ajay Vohra, Ms. Kavita Jha, Ms. Akansha Aggarwal and Somnath Shukla for the Respondent. JUDGMENT A.K. Sikri, J. By this common order, we propose to decide these appeals. Keeping in view the commonality of the question, the parties and the impugned order of the Tribunal, instead of referring the facts of each case, our purpose would be served by taking note of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,700 has been actually earned by me in the current period because the actual payment for the acquisition of all the shares invariably have been made in the current year 1994-95; though on paper part of the shares might have been acquired in the earlier years. The investment for acquisition was from income from other sources. This disclosure has been made voluntarily and is over and above the normal business income. Necessary taxes will be paid as per law." 2. On the basis of this statement, notice under section 148 was issued to the assessee. It was on the premise that the assessee had filed the Income-tax return only till the assessment year 1993-94 and thereafter, she had not filed the return. The Assessing Officer, in these circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 5,60,000 2. Big Jo's Estates Ltd. Rs. 5,50,000 3. Big Jo's Securities Credits Pvt. Ltd. Rs. 8,00,000 TOTAL Rs. 29,10,000 Smt. Bela Jain had filed her return of income only upto assessment year 1993-94. She has shown income from property, shares from registered firm as well as profit from Haryali Nursery, in her personal return, apart from income from other sources such as dividend, etc. During the search some stock discrepancies in respect of Haryali Nursery was also detected. In order to assess the receipt of share capital into the group companies of Big Jos group during the financial year 1993-94 vis-a-vis the admission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no basis for issuing such notice, inasmuch as; (a) the notice was issued on wrong premise that the assessee had not filed return for the assessment year which was in fact filed; (b) there was no nexus with the issuance of notice in respect of assessment year in question when the statement was recorded. The addition was challenged on merits as well. The CIT (Appeals) repelled the challenge to the validity of the proceedings under section 147 of the Act. According to him, even if the assessee had filed the return for the assessment year in question, the fact remained that she had not declared any income on account of cash paid to the subscribers of capital in the said return. Therefore, even after the assessee rectified the mistake by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid amount was made when the shares were purportedly subscribed to the tune of Rs. 29.10 lakhs. According to him an examination of the assessment record of the assessee was necessary and no material pertaining to this issue was confronted to the assessee at any stage. He accordingly remitted the case back to the Assessing Officer on this issue. 6. Both the assessee as well as the revenue has filed an appeal against the aforesaid order of the CIT (Appeals). The Tribunal first took up the issue regarding initiation of the proceedings under section 147 of the Act and agreed with the assessee's submission. It has held that the very notice issued under section 148 of the Act was illegal and thus quashed the assessment on this ground. For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under the Indian Income-tax Act, 1922 (11 of 1922) or under this Act" 9. It is an admitted case that during the search no books of account or documents or money or bullion or jewellery or any other valuable articles or things were found. As pointed above, it is the solitary statement of the assessee, which too was retracted immediately thereafter. Furthermore, apart from this statement there was no particulars coming forward namely who are the dummy subscribers, whether shares from the so-called dummy subscribers were transferred in the name of the assessee or assessee remains the benami owners thereof and is in the control and possession of those shares etc. No such questions were even put by the Assessing Officer to the assessee aft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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