9911796707
TMI Blog2015 (6) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... cles (P) Ltd. ii) Whether on the facts and circumstances of the case, the Hon'ble ITAT erred in not appreciating the facts brought on record by A.O in para 4.2 of the order that the change in shareholding is an afterthought. iii) Whether on the facts and circumstances of the case, the Hon'ble ITAT has erred in law in not considering the ratio of decision of Hon'ble Supreme Court in the case of Durga Parsad More 82 ITR 540 (SC) and the decision of Punjab & Haryana High Court in the case of Som Nath Maini 306 ITR 414 (P&H) relied upon by A.O in para 4.3 of order." As per the facts culled out from the appraisal of the paper book, Paramjit Singh on 20.8.2008 (hereinafter called "the assessee") filed his return of income tax individually for assessment year 2008-09 by showing an income of Rs. 34,12,120/-. The income of the assessee was processed under Section 143(1) of the Act at an income of Rs. 34,12,120/-. Subsequently, the return of the assessee was selected for scrutiny and accordingly a notice dated 18.9.2009 under Section 143(2) of the Act was served upon the assessee on 18.9.2009 and thereafter notice dated 6.1.2010 along with questionnaire under Section 142(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id share transfer deeds were duly stamped by the Registrar of Companies on 29.01.2007. After lodging of share transfer deeds, the company held the board meeting on 10.03.2007 & approved the share transfer. Copies of the share transfer register, members register, share transfer deeds and share certificates showing endorsement on 10.03.2007 in favour of the transfers have been filed with the ACIT on 03.09.2010 vide our Letter dated 02.09.2010. 2. The company's person who was handling the company law matters regarding filing of balance sheet and annual returns with the ROC, has forgotten to take effect of share transfer in the annual returns filed for the year 31.02.2007, 31.03.2008 & 31.03.2009. When the mistake was found, these annual returns were revised and filed with t he ROC on 10.02.2010 and the copies of said annual revised returns as permitted by the company law & accepted by the ROC have been filed with the ACIT. We are to further state that the shareholder had a credit balance in the beginning of year & at the end of year. The said credit balance has been treated by the company as an unsecured loan in the previous years. We have already filed copy of the interest acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the possible verification available with the Assessing Officer was the return filed by the Company with the Registrar of Companies and according to it, the return was revised for all four years only in February, 2010. It is pertinent to mention here that the assessee was not confronted with the letter of the Ludhiana Stock Exchange, much less, was the assessee given an opportunity of personal hearing as to what was held by the Commissioner of Income Tax (Appeals) after receipt of report on the application filed under Section 144A of the Act. It is borne out that the Additional Commissioner of Income Tax (Appeals) did not provide an opportunity of being heard to the assessee as per the provisions of Section 144A of the Act. For the sake of brevity, the provisions of Section 144A of the Act are reproduced herein below:- "144A A Joint Commissioner may, on his own motion or on a reference being made to him by the [Assessing] Officer or on the application of an assessee, call for and examine the record of any proceeding in which an assessment is pending and, if he considers that, having regard to the nature of the case or the amount involved or for any other reason, it is necessary o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial confirmed from Ludhiana Stock Exchange; d) The order of the Assessing Officer is based on the assumptions and suspicion and did not consider the share holding of the assessee as 8.89% after the transfer of shares in March, 2007 and, thus, made the addition of loan received as deemed dividend under Section 2(22)(e) of the Act. The Commissioner of Income Tax (Appeals)-I, Ludhiana, on the basis of the submissions made on behalf of the authorised representative of the assessee and as well as on behalf of the revenue, again sought a report from the Assessing Officer on the following issues:- i) The AO has relied upon enquiries conducted from the Ludhiana Stock Exchange but the information so obtained as detailed in the assessment order had not been confronted to the assessee. ii) The assessee had filed an application u/s 144A of the I.T.Act seeking directions to the AO and the Addl.CIT after obtaining the report of the AO on the issue did not give any opportunity of being heard especially when the directions given to the AO were prejudicial to the interests on the assessee. The AR referred to the proviso to Section 144A in this regard." On the basis of the said directions, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conducting the enquiry and while ascertaining the fact of issuance of the share transfer forms from the Ludhiana Stock Exchange did not provide any opportunity of being heard to the assessee to rebut or lead evidence in support of the defence and the said enquiry was conducted at the back of the assessee. It is pertinent to mention here that during the course of the appellate proceedings, the Commissioner of Income Tax (Appeals) directed the Assessing Officer to make enquiry from the Ludhiana Stock Exchange on the claim of the appellant vis-a-vis the view of the Assessing Officer as to whether the impugned share transfer forms were sold in January, 2007 or February, 2010. The Assessing Officer submitted his report after recording the statement of one Mrs.Pooja Kohli, Executive Director of Ludhiana Stock Exchange, who had been working for the Exchange since 1.3.2005. As per her statement, the forms in questions, which bore Sr.Nos.64001 to 68000 and another bundle of share transfer deed forms bearing Sr.No.68001 to 72000 were sent to the Registrar of Companies vide letters dated 29.1.2007 and 6.2.2007 respectively. On the basis of the enquiry conducted by the Assessing Officer, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 and 6.2.2010 respectively. Admittedly, the share transfer forms bearing No.65672 and 65673 were issued in the lot dated 29.1.2007 and, therefore, the erroneous and perverse opinion formed by the Assessing Officer, to the effect that the said share transfer forms were submitted in February, 2010, does not have any basis much less any substance once the provisions of the Companies Act permit the Company to file a revised annual report, Income Tax authorities cannot sit over the statutory provisions which permit the Company to file a revised annual report and form a different opinion that too on the basis of suspicion. The Commissioner of Income Tax (Appeals) and as well as ITAT found that the Assessing Officer did not comply with the statutory provisions of law, inasmuch, as that the assessee was not given sufficient opportunity to rebut the report of the Assessing Officer. Not only this, even the assessee was not confronted with letter obtained from the office of Ludhiana Stock Exchange in order to enable him to rebut or lead evidence in support of his stand, particularly when it has come on record that the forms were issued during the relevant period when the annual returns wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
