TMI Blog2019 (11) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... and information received from the Deputy Director of Income Tax (Investigation) Kolkata by misuse of National Multi-commodity Exchange platform. This is the very income chargeable to tax which has escaped assessment at ₹ 33.59 lakhs. This is as mentioned in the reasons with regard to the Petitioner purchasing and selling shares through Star Commodities i.e. Broker during the previous year relevant to the Assessment Year by misusing the National Multi-commodity Exchange platform. No reason to entertain this Petition. - WRIT PETITION NO. 2245 OF 2019 - - - Dated:- 10-10-2019 - M.S. SANKLECHA NITIN JAMDAR, JJ. Mr. Ketan Shah a/w Aman Shah with Nirav Punmiya, for the Petitioner. Mr. Akhileshwar Sharma, for the Respondent. P.C. : This Petition under Article 226 of the Constitution of India challenges the notice dated 30 March 2019, issued under section 148 of the Income Tax Act, 1961(the Act ). The impugned notice dated 30 March 2019 seeks to reopen the assessment for Assessment Year 2012-13. 2. It is an undisputed position that no scrutiny assessment under section 143(3) of the Act was done by the Assessing Officer for the subject Assessment Year. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... = K00054 Kush Stocks Currencies Pvt. Ltd. AADCK 6412G 884772340.5 892103318 7330977.5 PROFIT Darpan Commodities 2011- 2012 CLO 431 Star Commodities CL04311=K00054 Kush Stocks Currencies Pvt. Ltd. AADCK 6412G 65294000 66292750 998750 PROFIT Kredent Commodities 2011- 2012 CLO 431 Star Commodities CL04311= K00054 Kush Stocks Currencies Pvt. Ltd. AADCK 6412G 352215943 34388 7924.5 8328018.5 LOSS Remac trader 2011- 2012 CLO 431 Star Commodities CL04311= K00054 Kush Stocks Currencies Pvt. Ltd. AAD CK 6412G 85118700 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all material facts necessary for assessment. It is therefore requested that sanction to reopen the case u/s.147 and issue of notice u/s.148 for the AY 2012-13 may be given as per the provisions of section 151(1) of the Income Tax Act, 1961. 4. Mr.Shah appearing in support of the Petition submits that the impugned notice is without jurisdiction as the Assessing Officer did not have any reason to believe that income chargeable to tax has escaped assessment. In particular he invites our attention to paragraph 5 of the aforesaid reasons to point out that the Assessing Officer was on a fishing enquiry as he does not even allege that there is any income as it proceeds on the basis that there is profit/loss for different entities. Thus the basic requirement of income chargeable to tax having escaped assessment is not satisfied. It is further submitted that there is no tangible material evidence available with the Assessing Officer to reopen the assessment. This requirement has to be satisfied according to him even when the return of income has been processed under section 143(1) by way of intimation. In support of his submissions Mr.Shah placed reliance upon the decision of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation of belief by the Assessing Officer is within the realm of subjective satisfaction (see ITO v. Selected Dalurband Coal Co. Pvt. Ltd. [1996 (217) ITR 597 (SC)] ; Raymond Woollen Mills Ltd. v. ITO [ 1999 (236) ITR 34 (SC)]. 17. The scope and effect of section 147 as substituted with effect from April 1, 1989, as also sections 148 to 152 are substantially different from the provisions as they stood prior to such substitution. Under the old provisions of section 147, separate clauses (a) and (b) laid down the circumstances under which income escaping assessment for the past assessment years could be assessed or reassessed. To confer jurisdiction under section 147(a) two conditions were required to be satisfied firstly the Assessing Officer must have reason to believe that income profits or gains chargeable to income tax have escaped assessment, and secondly he must also have reason to believe that such escapement has occurred by reason of either (i) omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions were conditions precedent to be satisfied before the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revious year relevant to the Assessment Year by misusing the National Multi-commodity Exchange platform. Thus even if paragaph 5 is ignored, the reasons to support the impugned reopening notice can be sustained on the above reasons as indicated in paragraph 2 to 4 thereof. 7. So far as the decisions relied upon by Mr.Shah for the Petitioner, we find that Bombay High Court in Nu Power (supra) was dealing with reopening of an assessment which had been completed under section 143(3) of the Act and not a case of the return being processed at section 143(1) of the Act, as in this case. It was in the above context the regular assessment having been completed under section 143(3) of the Act and the reopening notice having been issued beyond the period of four years from the end of the relevant Assessment year that the above Petition was admitted for prima facie no failure to disclose all material facts necessary for assessment. Thus the above decision would have no application to the facts of the present case. 8. So far as the decision of the Delhi High Court, in the case of Meenakshi Overseas (supra) is concerned, we note it was rendered in an appeal under section 260A of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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