TMI Blog2016 (12) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of GKN Driveshafts (India) Ltd vs. Income Tax Officer and others (2002 (11) TMI 7 - SUPREME Court ) 1 SCC 72 and has disposed of the objections filed by the Assessee by passing a speaking order which does not call for any interference at this stage. Accordingly, the writ petition is dismissed leaving it open to the petitioner to work out their remedies available under the Act. - W.P.No.42341 of 2016 and W.M.P.No.36245 of 2016 - - - Dated:- 7-12-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr.R.Sivaraman For the Respondent : Mr.M.Swaminathan and M/s.V.Pushpa ORDER The petitioner has filed this writ petition challenging the notice under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions including the decision of the Hon'ble Supreme Court and requested the respondent to consider the same, however, the respondent without going into the details in a prefuntory manner passed the impugned order dated 16.11.2016. 4.The learned counsel prefaced his submission by stating that when no assessment order has been passed and the assessment is completed by a mere intimation under Section 143(1) of the Act, unless there is reason to believe that income chargeable to tax has escaped assessment, notice for reopening cannot be issued, hence the petitioner is entitled to challenge the notice as being without jurisdiction. In this regard, the learned counsel placed reliance on the following decisions: (i) Khubchandani Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further submitted that if in the original assessment proceedings all facts had been stated an assessment made the same cannot be reopened without fresh facts coming to light. Further it is submitted that the compulsory convertible cumulative preference shares which have been issued cannot be treated as an income for the relevant assessment year much less the income escaping assessment. Therefore, there is no reason to believe that income has escaped assessment for issued notice under Section 148 of the Act. 6.Mr.M.Swaminathan, learned Senior Panel Counsel for the revenue assisted by Ms.Pushpa, learned Junior Counsel for the revenue submitted that the petitioner has an effective alternative remedy under the provisions of the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of the financials of the petitioner shows that though the net worth of the Company is low, a very high value of share premium has been introduced during the financial year 2008-09. Therefore, the respondent had reason to believe that such transaction is not genuine and such introduction of share premium needs to be taxed under Section 68 of the Act. The valuation of shares issued at high premium was prima facie found to be not in order and the source of money which was brought in a share premium requires deeper scrutiny. Further the respondent doubted the genuineness of the transaction and the justification for issuing shares at premium and this had to be examined to ascertain whether any unaccounted money was brought as share capital i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent has per-decided the matter. 10.As has been held the reason to believe must have a link with the formation of belief. This is present in the instant case. The respondent while considering the objections has in seriatim referred to the same and pointed out that the reopening of the assessment is to verify the nature of receipts as seen from the records available with the Department, the Assessee can produce all evidence to show that it is a claim of receipts during re-assessment proceedings. Further, the respondent has taken a stand by referring to the decision of Sri Sakthi Textiles Ltd. vs. Jt. CIT reported in (2012) 340 ITR 144 (Mad.) stating that there is no legal necessity that material referred to in Section 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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