Case Law Details
Asian Satellite Broadcast Pvt. Ltd. Vs. ITO (Bombay High Court)
From the reasons recorded, order rejecting objections of the petitioner and the reply affidavit of respondent No.1 in the present proceeding, it is clearly discernible that the basis for re-opening of assessment was the two letters of departmental authorities dated 29.02.2018 and 29.03.2018. Though petitioner was not furnished copies of the said two letters, copies of the same have been annexed to the affidavit in reply wherefrom it is evident that in the case of a group entity, Commissioner of Income Tax (Appeals) had held that such transfer of shares was nothing but a colourable device. Further view taken was that such a device was adopted so that income assessable to tax under the head ‘capital gains’ remained outside the net of taxation. It was held that such transfer of shares attracted section 45(1) and accordingly, liable to be taxed on the market value of the shares so transferred. It was on that basis notice under section 148 was issued.
As rightly held by this Court in the order dated 16.10.2019, such a view taken by respondent No.1 was nothing but a change of opinion. While initially contention of the petitioner that such transfer of shares was a gift without consideration was accepted, subsequently the above view was revised to treat the transfer of shares not as a gift and to tax the said transaction on the market value of the shares; this is nothing but change of opinion. It is quite apparent that petitioner had placed before the assessing officer during the assessment proceedings all the primary facts where from he made the inference. Now it is not open to the assessing officer to take a second view on the same set of facts treating the earlier view as erroneous. This is not permissible.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
Heard Mr. Percy Pardiwala, learned senior counsel along with Mr. Madhur Agarwal, learned counsel for the petitioner and Mr. N. C. Mohanty, learned counsel for the respondents.
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