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TMI Blog2016 (1) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... T (A) failed to appreciate that there is no documentary evidence against the appellant company to support such impugned additions. The learned Assessing Officer failed to appreciate that the statements of any person recorded U/s. 131 or otherwise do not trigger any adverse order against the appellant and in such case, the burden of proving what is alleged in the assessment order is on the learned Assessing Officer. 5. The learned Assessing Officer and Ld. CIT (A) ought to have appreciated that in the original assessment U/s. 143(3) and in this assessment U/s. 143(3) read with U/s. 148, the appellant company has fully discharged burden of proof, onus of proof and explained the source of share capital and advances received by establishing the identity, credit worthiness and genuineness of transaction by banking instruments with documentary evidences. 6. The learned Assessing Officer and Ld. CIT (A) failed to appreciate that the appellant company substantiated the details with the documentary evidences as extracted from the website of Ministry of corporate affairs, Government of India. In this assessment order, the learned Assessing Officer could not rebut any of the facts and docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ety, Santacruz East, Mumbai. There was no genuine business being carried out by any of the concerns and they were all engaged in the business of issuing bogus bills for providing long term capital gain/loss, speculation profit or loss. Further some of the companies were engaged in providing bogus share application money to other companies. In the case of Chamatkar properties and investments Pvt Ltd., it is seen that the assesee has allotted shares amounting to Rs. 7500000/- during the financial year 2005-06 relevant to assessment year 2006-07 as under: Sr. No Name of the share applicant Amount (Rs.) 1 Alembric Securities Pvt. Ltd. 5,00,000 2 Alpha Chemie Trade Agencies Pvt. Ltd. 25,00,000 3 Gabriel Investments Pvt. Ltd. 5,00,000 4 Sonal Silchem Ltd. 10,00,000 5 Dynachem Phar.(Export) Ltd. 5,00,000 6 Mihir Agencies Pvt. Ltd. 15,00,000 7 Alliance Intermediateries & Network Pvt. Ltd. 10,00,000 Total 75,00,000 The names of the above mentioned companies are out of the companies floated by Mukesh Chokshi which are engaged in the business of providing accommodation entries. As the information was not available at the time of assessment, the genuineness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich were sought to be raised and raked up in the reopening proceeding such as unsecured loans of Rs. 25,39,180/- and share capital of Rs. 75,00,000/- were examined in detail while framing the original assessment u/s 143(3) which was completed vide order dated 23.12.2008. The ld. Counsel also drew our attention to the office note appended to the assessment order dated 23.12.2008 by advancing the arguments that the confirmations in respect of loans raised and share applicants were filed before the AO and ld. AO drew no adverse inference therefrom which was recorded in the assessment order. Therefore the proviso to section 147 of the Act was wrongly invoked to re-open a completed assessment after four years without satisfying the conditions provided therein by placing strong reliance on the decision of the coordinate bench of Mumbai Tribunal in ITA No. : 3904/Mum/2012 (AY: 2004- 05). 05. The ld. Counsel submitted before us that the reopening the already concluded assessment on the basis of the information's which were available before the AO at the time of original assessment and were duly verified /examined by the AO while framing the assessment was nothing but patent change of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the AO vide letter no. ITO -6 (2) -148 -CP& TPL/2013. dated 10.03.2014 whereas the assessment was framed vide order dated 13.03.2014 just 3 days after which was in violation of the decision of the jurisdictional High Court in the case of Asian Paints Ltd V DCIT (2008) 296 ITR 90(Bom). The ld. Counsel also pointed out that there was no failure on the part of the asesessee to disclose all material facts relating to the share applicants and conversion thereof into share capital and also qua corporate loans which were duly shown in the balance sheet of the assessee and all the confirmations were filed before the AO and the AO after verification of the same appended a office note to the assessment order passed u/s 143(3) in the original scrutiny proceeding stating therein that no adverse inference was drawn. The ld. Counsel ultimately submitted that the order passed u/s 143(3) r.w.s. 147 of the Act was suffering from several incurable infirmities and defects and therefore prayed for quashing and annulling the assessment u/s 143(3) r.w.s. 147 of the Act on the ground that reopening beyond four years without having any jurisdiction under the first proviso of the section 147 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... close fully and truly all material facts necessary for his assessment, for that assessment year:" 7. Now in order to decide the issue we have to examine the disclosures made by the assessee in his return filed u/s 139(1) and during the course of scrutiny proceedings and the manner in which the assessment was completed u/s 143(3) of the Act. The return of income was filed u/s 139(1) and during the course of scrutiny the AO examined the profit and loss account , balance sheet , audit report and books of accounts comprising cash book, ledger, bills, vouchers, sales and purchase registers, confirmations in respect of share applicants and loans and the AO completed the assessment u/s 143(3 ) vide order dated 23.12.2008 by disallowing the expenses claimed Rs. 1,34,350/- We also find from the assessment order that a office note was appended on page no 2 stating that confirmations in respect of share applicants and loans and books of accounts were examined and verified and no adverse inference was drawn. The extracts of the said office note is reproduced as under:- "OFFICE NOTE: The return was selected for scrutiny on 1st October 2007 under CASS as per CBDT's Central Action Plan for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment u/s 147 r.w.s. 148 of the Act is hereby quashed. The AO is directed accordingly. 8. Even on merit we find that no new materials had come before the AO and reasons to believe as recorded u/s 148 of the Act to re-open the completed assessment were on the basis of materials which were duly examined by the AO while framing the assessment u/s 143(3) and even left a office note recording his satisfaction on the confirmations of share applicants to whom the shares were allotted and also with respect to loan creditors. The law does not permit or empower the AO to re-open an already concluded assessment on the basis of same information/materials which were before the AO at the time of original assessment. The Hon'ble apex court in the case of CIT Vs Kelvinator India Ltd (supra) held that re-assessment based on the same materials which were before the AO at the time of original assessment is bad in law and has to quashed as the same is based on the change of opinion. We therefore respectfully following the decision of the apex court, quash the re-opening u/s 147 r.w.s. 148 of the Act as being based on change of opinion by allowing the appeal of the assessee. In result appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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