TMI Blog2023 (8) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... hat reopening is beyond 4 years and as the original assessment was framed u/s. 143(3) of the Act, the Revenue could not establish any failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment, the reopening in present case is bad in law. Decided in favour of assessee. - Shri Mahavir Singh, Vice President And Shri Manoj Kumar Aggarwal, Accountant Member For the Appellant : Shri D. Anand, Advocate For the Respondent : Shri D. Hema Bhupal, JCIT ORDER PER MAHAVIR SINGH, VP: This appeal by the assessee is arising out of the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi in order No.ITBA/NFAC/S/250/2022- 23/1048970692(1) dated 20.01.2023. The re-assessment was framed by the DCIT, Corporate Circle 1(2), Chennai for the assessment year 2013-14 u/s. 144 r.w.s.147 of the Income Tax Act, 1961 (hereinafter the Act ), vide order dated 13.12.2019. 2. The first issue on the assumption of jurisdiction u/s. 148 of the Act by the AO and confirmed by the CIT(A) is against, for the reason that the reopening is beyond 4 years and original assessment was completed u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reassessment u/s. 144 r.w.s.147 of the Act, vide order dated 30.12.2019. The assessee challenged this re-assessment order before the CIT(A). 4. The assessee raised the first issue before CIT(A) on reopening which reads as under:- 1. Appellant submits that the Order of Assessment dated 13.12.2019 passed under section 144 r.w.s 147 of the Income Tax Act for the assessment year 2013-14, in so far as it goes against the appellant, is contrary to law and facts, against the weight of evidence and probabilities of the case. Now, the ld.counsel for the assessee before us pointed out that the CIT(A) has not adjudicated this jurisdictional issue and just confirmed the addition by adjudicating and treating the only effective grounds as under:- 6.2 There is only one effective ground of appeal and i.e., pertains the addition of Rs. 3,93,01,801/- as unexplained cash credits u/s 68 of the Income-tax Act. Now, the ld.counsel for the assessee stated that complete facts relating to the jurisdictional issue i.e., framing of reassessment beyond 4 years and there is no failure pointed out by the AO in the reasons recorded on the part of the assessee to disclose fully and truly all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 3,65,51,801/- to Rs. 4,42,72,411/-. Since the said share application money was standing in the books of the assessee company remaining unallotted, the case of the assessee was reopened u/s. 147 of the IT Act after seeking prior approval. Notice u/s. 148 dated 29.03.2019 was issued and served on assessee. No return of Income has been filed in response to Notice u/s. 148 on the 1.T. Act. Further, Notice u/s. 142(1) issued on 19-11- 2019 calling for return of income and intimating change of incumbent. The details of the parties form whom share application money received, date of receipt reasons for non-allotment of shares was called for. In response the assessee furnished the party wise breakup of share application money received as under: Name F.Y.2011-12 (date of receipt) F.Y. 12-13 Amount (Rs.) Samhita Enterprises Pvt. Ltd. 2,97,00,000 3,75,00,000 Rakhi Transport Pvt. Ltd. 47,38,500 46,38,500 Star Alobev Pvt. Ltd. 21.73,301 21,63,301 Total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case law of Hon ble Supreme Court in the case of CIT vs. Foramer France, (2003) 264 ITR 566. 6. On the other hand, the ld.Senior DR heavily relied on the reasons recorded, reassessment order and the order of the CIT(A). Alternatively he made submissions, matter can be referred back to the file of the CIT(A) for adjudication of jurisdictional issue because he has not gone into the facts of the case and there is no adjudication by him on this issue. 7. We have heard rival contentions and gone through the facts and circumstances of the case. Admittedly, the AO during the course of assessment proceedings was aware about the share application money received by assessee because the audited accounts were available before him during the course of original assessment proceedings. From the reasons recorded, there is no iota of thinking or words in the reasons recorded that there is any failure on the part of the assessee to disclose fully and truly all material facts relating to the income for the relevant assessment year. Admittedly the reopening is beyond 4 years because relevant assessment year involved is 2013-14 and notice u/s. 148 of the Act is issued on 29.03.2019, which means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 147 have been deleted and a new proviso added to Section 147. 17. In Rakesh Aggarwal v. Asst. CIT (1997] 225 ITR 496, the Delhi High Court held that in view of the proviso to Section 147 notice for reassessment under Section 147/148 should only be issued in accordance with the new Section 147, and where the original assessment had been made under Section 143(3) then in view of the proviso to Section 147, the notice under section 148 would be illegal if issued more than four years after the end of the relevant assessment year. The same view was taken by the Gujarat High Court in Shree Tharad Jain Yuvak Mandal v. ITO [2000] 242 ITR 612. 18. In our opinion, we have to see the law prevailing on the date of issue of the notice under Section 148, i.e., November 20, 1998. Admittedly, by that date, the new Section 147 has come into force and, hence, in our opinion, it is the new Section 147 which will apply to the facts of the present case. In the present case, there was admittedly no failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for the assessment. Hence, the proviso to the new Section 147 squarely applies, and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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