TMI Blog2022 (3) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... on some tangible material which comes to the knowledge of the AO. An assessment cannot be reopened under section 147 of the Act on the basis of mere suspicion. The Ld. Counsel for the assessee, as discussed in earlier paras of this order, has placed reliance on the reasons recorded by the AO for formation of belief that the income of the assessee has escaped assessment to submit that the same are not valid reasons. As approval granted by the Addl. CIT reveals that the Assessing Officer had mentioned the relevant section as 147(b) which admittedly has been omitted from the Statute w.e.f. 01.04.89 and further without application of mind to the contents of the aforesaid proposal, the Ld. Addl. CIT granted approval in a mechanical manner by saying Yes , even without application of mind that the approval has been sought under wrong section. The aforesaid contents of the approval clearly shows that the approval has been granted by the Addl. CIT in a mechanical manner without application of mind. In the case of Omkam Developers Ltd. [ 2021 (5) TMI 414 - ITAT DELHI] the Coordinate Bench of the Tribunal while relying upon the decision in the case of PCIT Vs NC Cable Ltd [ 2017 (1) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed multiple grounds of appeal but at the time of hearing the solitary grievance of the assessee has been confined to the legal issue relating to the validity of reopening of the assessment u/s 147 r.w.s 148 of the Act. 3. The brief facts of the case are that the assessee filed its return of income for assessment year 2009-10 on 04.09.2009 and the returned income was accepted. However, during the assessment proceedings for assessment year 2012-13, the Assessing Officer noticed that the assessee company had shown huge share premium of ₹ 2,24,55,000/-. The Assessing Officer asked the assessee to give details of premium amount along with name, address, PANs of shareholders etc. In reply, the assessee submitted that no fresh share premium was received by the assessee during the year. That the premium amount account was continued at constant figures over the year since 31.03.2009. The Assessing Officer observed that the above information was not enough. He held that the assessee had failed to explain about the genuineness of the premium amount received during F.Y. 2008-09 relevant to A.Y. 2009-10. He, therefore, formed the belief that income of the assessee for A.Y. 2009-10 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del./2018) [Del-Trib] dated 11.05.2021 (iii) Madhu Apartment Private Ltd. v. ITO (2021) 86 ITR 317 (Delhi-Trib.) (iv) Maheshwari Roller Flour Mills Pvt. Ltd. Vs. ITO (ITA.No.4257/Del./2019) (Delhi- Trib.) dated 17.12.2020 (v) VRC Township Pvt. Ltd. Vs. ITO (ITA.No.1503/Del./2017) (Delhi-Trib.) dated 14.10.2020 (vi) Smt. Kalpana Shantilal Haria vs. ACIT [WP(L) No. 3063 of 2017 (Bom)] 6. The Ld. counsel has further submitted that mere appending of the expression Yes to the proposal of Assessing Officer for reopening of the assessment, was not sufficient. The written satisfaction has to be recorded by the Addl. CIT showing the application of mind to the proposal of the Assessing Officer. He has in this respect also relied upon the following decisions: (i) Synfonia Tradelinks Pvt. Ltd. v. ITO (2021)435 ITR 642 [Del-HC] (ii) PCIT vs. N.C. Cables Ltd., 391 ITR 11 (Del-HC) (iii) CIT vs. S. Goyanka Lime Chemical Ltd. (2015) 64 taxmann.com 313 [SC] (iv) CIT vs. S. Goyanka Lime Chemicals Ltd. (2015) 56 taxmann.com 390 [MP-HC] (v) United Electrical Company (P) Ltd. Vs. CIT 258 ITR 317 (Del-HC) (vi) Chhugamal Rajpal vs. S.P. Chaliha Ors. 79 ITR 603 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has escaped assessment. The Assessing Officer during the assessment proceedings for assessment year 2012-13 wanted to enquire about the share premium shown by the assessee in his accounts. However, the assessee replied that no share premium was received during the assessment year under consideration (A.Y. 2012-13); that the share premium amount account was continued at constant figures over the years since 31.03.2009. 10. Since, no share premium was received by the assessee during the assessment year 2012-13, therefore, in our view, the assessee was justified to state that the share premium, if any, was received in the earlier year 2008-09, and that the Assessing Officer was not supposed to make enquiries relating to the amounts received in the earlier years, during the assessment proceedings for the Assessment Year 2012-13. Even irrespective of the above fact, the Assessing Officer did not get any reliable information that the share premium received by the assessee during the financial year 2008-09 relevant to the assessment year under consideration was bogus or was not genuine. Since the assessee had only given the information to the Assessing Officer that the share prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is respect can also be placed on the decision of the Hon'ble Punjab Haryana High Court in the case of 'CIT vs Paramjit Kaur' (2008) 311 ITR 38 (P H), wherein the Hon'ble High Court held that the in the absence of sufficient material to form satisfaction of the Assessing Officer that income of the assessee had escaped assessment, the issuance of notices u/s 148 of the Act was not valid. 11. The Hon ble Delhi High Court in ACIT vs. Meenakshi Overseas (P) Ltd. (2017) 82 taxmann.com 300 (Del) has held as under: 23. Thus, the crucial link between the information made available to the A.O and the formation of belief is absent. The reasons must be self-evident, they must speak for themselves. The tangible material which forms the basis for the belief that income has escaped assessment must be evident from a reading of the reasons. The entire material need not be set out. However, something therein which is critical to the formation of the belief must be referred to. Otherwise the link goes missing. 12. The above proposition of law has been settled by the various Coordinate Benches of the Tribunal as well as Hon ble Supreme Court and High Courts in various c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000 in course of assessment for AY12-13, the AR was asked to give detail of premium amount along the name, address, PANs of the shareholders, no of share, face value as on 31-3-09 and as on 31-3-12. No Reply was given but only stated that the premium amount a/c is continued at constant figures over the years, since 31-3-09. In view of this, this case is fit for reopening u/s 147 by issuing notice u/s 148 for A.Y 09-10 ITO, Ward-4(3), Kolkata. 11 Whether the CIT/JCIT is satisfied on the reasons recorded by the ITO, Ward-4(3), Kolkata that it is a fit case for issue of notice u/s 148. Yes Sd. 3-3-15 Addl.CIT, R-4, Kolkata. 14. A perusal of the aforesaid approval granted by the Addl. CIT reveals that the Assessing Officer had mentioned the relevant section as 147(b) which admittedly has been omitted from the Statute w.e.f. 01.04.89 and further without application of mind to the contents of the aforesaid proposal, the Ld. Addl. CIT granted approval in a mechanical manner by saying Yes , even without application of mind that the approval has been sought under wrong section. The aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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