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2016 (7) TMI 258 - ITAT DELHI

2016 (7) TMI 258 - ITAT DELHI - TMI - Validity of reopening of the assessment - Held that:- It is an admitted fact, as also evident from the reasons recorded and the assessment order that the initiation of reopening proceedings was made by the Assessing Officer on the basis of information received from the Directorate of Income-tax (Inv.) on the basis of search & seizure operation conducted at the premises of Rock Land Group of Cases and the documents related to the assessee found during the cou .....

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are void ab initio. The reassessment in question is accordingly quashed. - Decided in favour of assessee - ITA No. 2430/Del/2015 - Dated:- 20-5-2016 - Shri I. C. Sudhir And Shri L. P. Sahu For the Assessee : Shri PC Yadav, Adv For the Department : Shri Rajesh Kumar Kedia, Sr. DR ORDER Per I. C. Sudhir: Judicial Member The assessee has questioned first appellate order on the following grounds : 1. That Learned CIT(Appeals) has erred on facts and in circumstances of the case and in law, in confir .....

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ares is income of assessee under section 28(iv). 4. That the Learned CIT(Appeals) has erred on the facts and in the circumstances of the case and in law in confirming the value of shares issued as sweat equity shares at ₹ 200 per share. 5. That the Learned CIT(Appeals) has erred on the facts and in the circumstances of the case and in law in confirming that the conditional issue of shares is a perquisite. 2. Heard and considered the arguments advanced by the parties in view of orders of th .....

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asons to belief that there was escapement of assessment of taxable income. The Assessing Officer had received information that a search & seizure operation under sec. 132 of the Act was carried out by the Director of Income-tax (Inv.) on 06.09.2011 on the Rockland Group of Cases. After going through the information received as well as the documents available in the office of the Assessing Officer, the Assessing Officer found that Rockland Hospital Ltd. (in short RHL ) had issued sweat equity .....

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n the basis that 1000 shares of face value of ₹ 10 and premium of ₹ 190 were issued to the assessee. The Learned CIT(Appeals) has upheld the same against which the assessee is in appeal on the above ground. 4. Ground No.1: In this ground, the assessee has questioned validity of reopening of the assessment. In support of this ground, the Learned AR submitted that the Assessing Officer has assumed jurisdiction under sec. 147 of the Act on the basis of facts which are not in existence o .....

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s on its own issued certain sweat equity shares and passed entries in its books. RLH credited in the liability side of the balance sheet by face value and premium of the shares issued and debited the assets side by creating a fictitious assets, namely, intellectual property rights. The Learned AR submitted that when the mistake committed by RLH was pointed out by the auditors, RLH moved before the Hon ble High Court of Delhi and Hon'ble High Court after considering the entire facts and law r .....

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013 and in compliance of the order dated 26.2.2010 of the Hon'ble High Court, the RLH had taken surrender of sweat equity shares on 20.5.2011 and search under sec. 132 of the Act was conducted at the premises of the RLH on 6.9.2011. Thus, it is clear that by the time search took place on RLH the so called shares were never in existence and the value as mentioned in the reasons recorded was already vanished in view of the order of the Hon'ble High Court. Therefore, the material which came .....

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made available. The Learned AR placed reliance on the following decisions: i) Signature Hotel - 338 ITR 51 (Del.); ii) Sarthak Security -329 ITR 110 (Del.); iii) Ranee Singh - 330 ITR 417 (Del.); 5. The Learned AR submitted further that the reasons recorded are neither signed nor is there any date on which these were recorded. He contended that the action taken by the Assessing Officer under sec. 147 is also not tenable for the simple reason that provisions of sec. 153C of the Act are applicabl .....

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in search of some other person should be assessed under sec. 153C of the Act. The provisions of section 153C are non-obstantive provisions and specially excludes the operation of sec. 147 of the Act, therefore, the Assessing Officer in the present case has erred in invoking the provisions of sec. 147, instead of 153C of the Act. If action under sec. 147 is permitted on the basis of material found in the course of search, then the provisions of sec. 153 would be redundant. In this regard, he pla .....

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es in the hands of the assessee was taxable under section 28(iv) of the Act. The Assessing Officer had recorded his reasons to belief on perusal of letter of DDIT and records of the assessee that income to the extent of ₹ 2 lacs has escaped assessment. 7. On having gone through the decisions cited above especially the decision of Amritsar Bench in the case of ITO vs. Arun Kumar Kapoor (supra), we find that in that case as in the present case before us, reassessment was initiated on the bas .....

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