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TMI Blog2019 (2) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... 956. One M/s Sayoy Finance and Investments Private Limited (hereinafter referred to as "Savoy Finance") had sold certain shares of one M/s Piramal Healthcare Limited for a total consideration of Rs. 322.36 crores (rounded off). Savoy Finance merged with the petitioner company The Swastik Safe Deposit and Investments Limited (hereinafter referred to "Swastik Safe"), the effective date of merger being 1st April, 2010. 4. The petitioner-Swastik Safe filed the return of income for the assessment year 2011-12 on 28th September, 2011 declaring total income of Rs. 57.87 lakhs, which mainly consisted of short term capital gain on sale of shares. This return was accepted without scrutiny in terms of Section 143(1) of the Income Tax Act, 1961 ("the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee company i.e. the Swastik Safe Deposit & Investment Limited has escaped assessment in the hand of the assessee company i.e. the Swastik Safe Deposit & Investment Limited for A.Y. 2011-12, within the meaning of section 147 of the I.T.Act, 1961. Permission for issuance of notice u/s. 148 as per the provisions of Sec.151(2) of the I.T.Act, 1961 is solicited." 5. Perusal of the reasons would show that according to the Assessing Officer, Savoy Finance had sold shares of Piramal Healthcare for Rs. 322.36 crores during assessment year 201112. Savoy Finance had an amalgamated with Swastik Safe. In the return of income filed by the Swatik Safe, only a sum of Rs. 83.34 crores as a full sale consideration of shares was shown, declaring capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of this Court in case Prashant S. Joshi and anr. Vs. Income-Tax Officer and another (2010) 324 ITR 154 (Bom) and one dated 20th July, 2016 in Writ Petition No.1155 of 2016 in case of General Electoral Trust Vs. Income Tax Officer 20(1)(2) Mumbai and ors. (ii) The notice of reopening of assessment could not be issued for carrying out fishing inquiry. (iii) In the present case the assessee had brought to the notice of the Assessing Officer reliable evidence to show that Piramal Healthcare had held the shares in question for long over a period over one year and that therefore, sale of such shares would not attract capital gain tax. Assessing Officer did not consider this objection in light of the documents produced. (iv) He sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and the scrutiny of this Court would be limited. Nevertheless, it is well established principle through series of judgments of this Court and other Courts that even in such a case the requirement that the Assessing Officer forms a belief that income chargeable to tax had escaped assessment must exist. Within this narrow confine, it is always open for the assessee to argue that the reasons recorded by the Assessing Officer lack validity. With this, we may revert back to the facts of the case. It is undisputed that Savoy Finance before its merger with the assessee-company had sold substantial number of shares of Piramal Healthcare for a sale consideration of Rs. 322.36 crores. In the return of income filed by the petitioner for the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of one year and therefore, there was no liability to pay capital gain tax on the proceeds of sale of shares. 11. In facts of the present case, therefore, we ask the Assessing Officer to consider this objection of the petitioner and give his specific finding through a speaking order. For this limited purpose, we place the matter back before the Assessing Officer. The Assessing Officer shall pass a further order dealing with this specific objection of the petitioner. In facts of the case, the Assessing Officer may give personal hearing to the authorized representative of the petitioner. Further order may be passed preferably within two months from today. For a period of four weeks after such order is communicated to the petitioner, reasses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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