TMI Blog2024 (5) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... r the decision in Ashish Agarwal (supra) commands an authority to reopen even concluded assessment proceedings. Recently, we had an occasion to extensively deal with a similar challenge as has been laid in the instant writ petition in the case titled as Anindita Sengupta [ 2024 (4) TMI 96 - DELHI HIGH COURT] whereby, it was held that the procedure envisaged in Ashish Agarwal (supra) unambiguously stood confined to matters where although notices may have been issued, proceedings were yet to have attained finality. The facts that assessment under Section 147 of the Act was already concluded, said proceedings were completely ignored and no new material was unearthed, closely resemble the factual scenario in the case of Anindita Sengupta (supra). Thus, the controversy in hand is squarely covered by our decision in Anindita Sengupta (supra). We, therefore, find it appropriate to allow the instant writ petition. Accordingly, the impugned notices issued under Section 148(A)(b) and Section 148, respectively and the impugned order passed under Section 148(A)(d) of the Act are, hereby, quashed. Decided in favour of assessee. - HON'BLE MR. JUSTICE YASHWANT VARMA AND HON BLE MR. JUSTICE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly 2022, an order under Section 148A(d) of the Act came to be passed alleging an escapement of income of ₹65,47,78,967/- as against the alleged escaped amount of ₹6,54,78,799/-, which was originally reflected in the show cause notice. On the even date, a notice under Section 148 of the Act was also purportedly issued to the petitioner with an intimation letter for the concerned AY. 6. Dr. Rakesh Gupta, learned counsel appearing on behalf of the petitioner, submitted that the assessing officer [ AO ] has erroneously assumed jurisdiction under Section 147 of the Act, despite becoming functus officio, in issuing the impugned notices as the alleged escaped income had already been assessed to tax for the same AY vide assessment order dated 31 March 2022. He, therefore, contended that in the absence of compliance with the jurisdictional conditions stipulated under Sections 147 to 151A of the Act, the impugned notices and the order are bad in law and thus, liable to be quashed. 7. While inviting our attention to the assessment order dated 31 March 2022 in juxtaposition with the impugned order dated 16 July 2022, learned counsel contended that the reassessment proceedings of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiring the petitioner to file her ITR. The concerned notice is reproduced as under:- Notice Under Section 148 Of The Income Tax Act, 1961 Sir/Madam/ M/s, Whereas I have reasons to believe that your Income chargeable to Tax for the Assessment Year 2015-16 has escaped Assessment within the meaning of section 147 of the Income Tax Act, 1961. I, therefore, propose to assess/re-assess the income/ loss for the said Assessment Year and I hereby require you to deliver to me within 30 days from the service of this notice, a return in the prescribed form for the said Assessment Year. This notice is being issued after obtaining the necessary satisfaction of the RANGE 52, DELHI 14. Pursuant to the aforesaid notice, a final assessment order dated 31 March 2022 under Section 147 read with Section 144B of the Act was passed and which is culled out hereinbelow:- ASSESSMENT ORDER Assessment Order u/s 147 r.w.s.144B of the Income Tax Act, 1961 1. The case of the assessee was transferred from the ITO, WARD 54(1), DELHI/ to NaFAC on 08/12/2021. 2. Reasons recorded u/s 148(2) (placed on record) before issuance of notice u/s 148(1) of I.T. Act, 1961 are, Assessee has taken accommodation entry of Rs. 654 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly all material facts/particulars there of. 3. Statutory notice u/s 148 of the Act was issued on 31/03/2021 to which the assessee had replied on 17/01/2022 that return has been filed at total income of Rs. 31,370/- on 14/0112022, however no such return is present on e-filing website of the Department against the PAN of the assessee. 4. Subsequently statutory notices u/s 142(1) of the Income Tax Act, 1961 were issued on 21/11/2021 and 29/12/2022 to which the assessee filed replies on 05/01/2022, 17/01/2022, 01/03/2022 and 17/03/2022 along with computation of income and HDFC Bank Statement and has stated that no business activity was carried during the year under consideration. 5. The replies and supporting documents of the assessee have been perused. The returned income as per the ROI copy filed u/s 148 provided by the assessee is not commensurate with the credible information available with the Department that the assessee has taken accommodation entry of Rs. 65478799/- through the Penny Stock of Achal Investment Ltd. During A Y 2015-16. 6. A Show Cause Notice along with draft assessment order was issued to the assessee on 30/03/2022 for compliance by 31/03/2022 but assessee has fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive of the fact whether such notices have been challenged or not. 3. In this regard, in compliance with the subject order of the Hon'ble Supreme Court, you are hereby provided with information and material relied upon by this office for issue of the show cause notice as above The detail of which is provided as under:- 1. Assessee has taken accommodation entry of Rs. 65478799/- through the Penny Stock of Achal Investment Ltd. The Modus Operandi (MO) of the whole operation is as follows- 2. For converting Black money into white many accommodation entry operators are working in the market. It is to be noted that these entry operators in connivance with brokers enter into transactions in shares of listed companies for providing accommodation entries to various beneficiaries. Two kinds of accommodation entries are taken through these transactions- a. Long Term Capital Gain b. Short Term Capital Loss In case of Long Term Capital Gain the shares of an unlisted company are allotted to the beneficiary through off-market transactions at a very low rate then this company merges with the identified listed companies. In this way shares of listed companies are transferred to the beneficiary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly, we had an occasion to extensively deal with a similar challenge as has been laid in the instant writ petition in the case titled as Anindita Sengupta v. Assistant Commissioner of Income Tax, Circle 61(1) New Delhi Ors. 2024:DHC:2475-DB, whereby, it was held that the procedure envisaged in Ashish Agarwal (supra) unambiguously stood confined to matters where although notices may have been issued, proceedings were yet to have attained finality. The relevant paragraphs of the said decision read as under:- 25. However, we are of the firm opinion that Ashish Agarwal neither intended nor mandated concluded assessments being reopened . The respondent clearly appears to have erred in proceedings along lines contrary to the above as would be evident from the reasons which follow. Firstly, Ashish Agarwal was principally concerned with judgments rendered by various High Courts striking down Section 148 notices holding that the respondents had erred in proceeding on the basis of the unamended family of provisions relating to reassessment. They had essentially held that it was the procedure constructed in terms of the amendments introduced by Finance Act, 2021 which would apply. None of tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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