9911796707
TMI Blog2013 (3) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... . The objections have been disposed of on 6 December 2012. 2. The assessee filed a return of income for A.Y. 2005-06. In the computation which is annexed to the return of income, the assessee inter alia claimed a long term loss on the sale of 10 lakh shares of a company by the name of Deepak Fertilizers and Petrochemicals Corporation Ltd. (DFPCL). In the computation of long term capital gains, the assessee stated that the date of acquisition of the shares was 9 December 1994. The cost of acquisition was stated to be Rs. 2.86 crores while the date of sale was stated as 12 May 2004. The assessee claimed that the indexed cost of acquisition was Rs. 4.50 crores and the sale proceeds were Rs. 3.80 crores. The long term capital loss was computed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital loss of Rs. 70.88 lakhs on account of the sale of 10 lakh shares of DFPCL. The share certificate revealed that the assessee had acquired those shares on 30 January 2004 and which were sold by the assessee on 12 May 2004. According to Assessing Officer, there was a short term capital gain of Rs. 2.80 crores which was not offered to tax as a result of which there was an under assessment of income by Rs. 2.80 crores. 4. The reopening in the present case, has taken place beyond the period of four years of the end of the relevant assessment year. Since the order of assessment was passed under Section 143(3), the validity of the notice reopening the assessment would depend upon whether there was a failure on the part of the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects. Just as the power of the Revenue to reopen an assessment beyond a period of four years is restricted by the conditions precedent spelt out in the proviso to s. 147, equally an assessee who seeks the benefit of the proviso to s. 147 must make a full and true disclosure of all primary facts." At paras 9 and 11 Where the reopening has taken place beyond the period of four years, the jurisdictional requirement is that there must be a failure on the part of the assessee to disclose fully and truly all material facts necessary for that assessment year. (Dynacraft Air Controls vs. Smt. Sneha Joshi - Judgment of the Division Bench of this Court dated 8 February 2013 in Writ Petition (L) No.54 of 2013) 5. Counsel appearing on behalf of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer one day before the Assessing Officer passed the order of assessment, a letter containing a compilation of statements including the share certificate would not amount to valid compliance with the provisions of law. 7. The computation of income that was filed by the assessee together with the return of income stated that the assessee had purchased 10 lakh shares of DFPCL on 9 December 1994 at a cost of Rs. 2.86 crores. The assessee claimed that it sold the shares on 10 May 2004. It was on this basis that the assessee claimed the benefit of indexation. What the assessee failed to disclose in the computation was the fact that the payment of Rs. 2.57 crores for the shares was in fact made on 30 January 2004. This was a fact w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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