9911796707
TMI Blog2013 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... was completed under section 147 read with section 143(3). This assessment was quashed by the CIT(Appeals) on the ground of lack of jurisdiction of the AO to reopen the assessment. His order was confirmed by the Tribunal. Thereafter the assessment was reopened again under section 147 of the Act on the basis of information given by the Director of Income Tax (Investigation) to the effect that the assessee has received accommodation entries from another company - My Money Security (P) Ltd. - for Rs.5 lacs by cheque No.421180 dated 23.3.2009. The assessee was asked to provide details of the shares purchased from the above company between the period 9.5.1998 and 22.3.1999. After examining the details the AO took the view that the capital gains o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In ITA No.2476/Del/2007, which was the appeal filed by the assessee, the Tribunal held, agreeing with the assessee, that the AO did not have jurisdiction to reopen the assessment. After referring to the precedents on the point, the Tribunal held that there was no material before the AO to show that the short term capital gains shown by the assessee were his undisclosed income and that the assessment having been reopened after a period of almost 8 years cannot be upheld since it was a case of a change of opinion on the basis of material which was not relevant to the formation of the belief that income chargeable to tax had escaped assessment. On this reasoning the Tribunal held that the AO had not properly assumed the jurisdiction to reop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chq no.421180 dt.23/03/99. In view of the above credible information received from the DIT (Inv), I have reasons to believe that the said income chargeable to tax has escaped assessment, as per the provisions of section 147 (a), (b) & (c) of the Income Tax Act 1961. 3. I am, therefore, satisfied that the said income has escaped assessment, and accordingly after recording the above said reasons as laid down under the provisions of Section 148(2) of the Income Tax Act, propose to issue a notice to the above mentioned assessee u/s 148(1) of the IT Act 1961." We find from a perusal of the assessment order that the assessee had declared the amount of Rs.5,10,130/- in its return of income as short term capital gains on sale of shares. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income since the rate of tax is the same under both heads. In the relevant assessment year, there was no difference in the rate of tax applicable to capital gains. Therefore, neither is there any escapement of income nor is there any under assessment. It is not a case covered by special sub-clause (ii) of clause (c) of Explanation (2) below section 147 which speaks of the income being assessed at too low a rate. The primary condition for invoking section 147 is that there should be escapement of income. It appears to us from the facts of the case that there was no escapement of income chargeable to tax. In this view of the matter, we find no infirmity in the ultimate decision of the Tribunal that the reassessment was without jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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