Case Law Details
M/s. Cornerstone Property Investments Pvt. Ltd. Vs ITO (ITAT Bangalore)
Mere Issue of 2nd notice U/s. 148 does not constitute Change of Opinion
The first notice issued under Section 148 of the Act on 18.4.2012 was dropped and a second notice under Section 148 of the Act was issued on 10.6.2013. This, in itself, does not constitute “Change of Opinion.” This fact comes out clearly from the Assessing Officer’s letter dt.4.6.2013 wherein the Assessing Officer has mentioned that the proceedings initiated by issue of the earlier notice under Section 148 of the Act dt.18.4.2012 was dropped as the reasons have not been properly recorded. As pointed out by the learned Departmental Representative for Revenue, the Hon’ble Allahabad High Court in the case of Sukhlal Ice and Storge Co. 199 ITR 129 has upheld the issue of second notice when the first notice was found to be illegal and found wanting in jurisdiction. Therefore, in our considered view, the issue of the second notice under Section 148 of the Act on 10.6.2013 for Assessment Year 2008-09 is valid, as all the other procedures mandated in the Act have been followed by the Assessing Officer. Also, since substantive issue in question was never examined under the proceedings in the first notice issued on 18.4.2012, the question of change of opinion does not arise. In this view of the matter, as discussed above, we find no infirmity in the decision of the learned CIT (Appeals) in upholding the action of the Assessing Officer in issuing the notice under Section 148 of the Act on 10.6.2013. Consequently, Ground No.2 of assessee’s appeal is dismissed.
AO can examine the genuineness of share premium U/s 68
Assessing Officer is empowered to examine the genuineness of the transactions characterized as share premium by invoking the provisions of Section 68 of the Act. As per Section 68 of the Act, the initial onus is upon the assessee to establish not only the identity and capacity of the creditor, but also the genuineness of the transaction. From the order of assessment, it is clear to us that the Assessing Officer has sought to do just this; i.e. to examine the genuineness of the transaction and therefore his action cannot be faulted on this score.
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