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TMI Blog2023 (6) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... he company u/s. 68 of the Income Tax Act, 1961." 3. Assessee has taken an additional ground vide its application dated 01.03.2023. The additional ground taken by the assessee reads as under: "1. For that the proceeding initiated u/s. 148 and the order of assessment passed u/s. 147/143(3) is bad in law to the extent that no addition has been made in the order of assessment on basis of the reasons recorded for initiating proceeding u/s. 148." 4. While taking the additional ground challenging the legality of the reassessment proceedings initiated u/s. 148 of the Act and the order passed u/s. 147 read with section 143(3) of the Act, assessee has prayed that the legal ground goes to the root of the matter for which all the facts are already on record and it may be admitted for adjudication. Ld. Counsel placed reliance on the decision of Hon'ble Supreme Court in the case of NTPC Vs. CIT 229 ITR 383 (SC). There was no objection raised by the Ld. Sr. DR on its admission. Therefore, before dealing with the grounds taken by the assessee in the appeal memo in Form 36, we take up the additional ground raised by the assessee challenging the legality of the impugned order for which relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was issued to the assessee with the prior approval of Pr. CIT, Dhanbad accorded on 06.02.2018 vide F. No.- Pr. CIT/DHN/Tech./133(6)/2017-18/7645. However, till date the assessee has not complied with the said notice. Therefore, the genuineness of assessee's claim of receiving share application and share premium amounting to Rs. 3,05,85,000/- cannot be ascertained. 5. Findings of the AO: As the assessee did not reply to the notice u/s. 133(6), its claim of having received share application money and share premium remained unverified. 6. Basis of forming reason to believe and details of escapement of income:- From the perusal of information received in the case of the assessee, it is found that the assessee has claimed to have received share application money and share premium of Rs. 3,05,85,000/- but has failed to substantiate his claim with tenable evidence. Therefore, I have reason to believe that in this case income of Rs. 3,05,85,000/- has escaped assessment for the relevant assessment year 2012-13. 7. Applicability of the provisions of section 147/151 to the facts of the case. In this case, a return of income was filed for the year under consideration b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas the assessment has been completed by making an addition in respect of unsecured loans of Rs. 29,75,000/-. Reliance was placed on the decision of Hon'ble High Court of Bombay in the case of CIT Vs. Jet Airways Ltd. 331 ITR 236 and Hon'ble High Court of Madras in the case of Martech Peripherals Pvt. Ltd. Vs. DCIT reported in 394 ITR 733 wherein it was held as under: "Whether Explanation 3 of section 147 Clearly expounds that if, notice for reopening of assessment was issued on one aspect, and in course of reassessment proceedings another aspect was discovered, reassessment order would be valid, only if, aspect, which led to reopening of assessment, continues to form part of reassessed income - Held, yes - Whether where reassessment notice was issued to tax gain/loss on sale of investments made in mutual funds whereas reassessment order was passed on a completely different ground to tax forfeited share application money, reassessment order was unjustified - Held, yes [Paras 14 and 22] [in favour of assessee]" 5.4. Ld. Counsel also placed reliance on the decision of Coordinate Bench of ITAT, Ranchi in the case of S.P Enterprises VS DCIT - ITA No. 32/Ran/2016, order dated 06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive and cumulative. It is of some significance that Parliament has not used the word "or". The Legislature did not rest content by merely using the word "and". The words "and" as well as "also" have been used together and in conjunction. Evidently, what Parliament intends by use of the words "and also" is that the Assessing Officer, upon the formation of a reason to believe under section 147 and the issuance of a notice under section 148(2) must assess or reassess: (i) such income; and also (ii) any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under the section. Explanation 3 does not and cannot override the necessity of fulfilling the conditions set out in the substantive part of section 147. An Explanation to a statutory provision is intended to explain its contents and 'cannot be construed to override it or render the substance and core nugatory. Section 147 has this effect that the Assessing Officer has to assess or reassess the income ("such income") which escaped assessment and which was the basis of the formation of belief and if he does so, he can also assess or reassess any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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