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2019 Supreme(Bom) 2445
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Akil Kureshi, M.S. Sanklecha, JJ.
Nupower Renewables Pvt. Ltd. - Appellant
Versus
Asst. Commissioner Of Income Tax 1(2)(2) & Ors. - Respondents
Writ Petition No. 3618 of 2018
Decided On : 07-03-2019
Mr. Percy Pardiwalla, Sr. Advocate with Mr. Jeet Kamdar i/b. Mr. Sameer Dalal, Advocates, for the Appellant; Mr. Sham Walve, Advocate, for the Respondent
Headnote:
Income Tax Act, 1961 - Sections 143, 147, 151, 142, 148 - Money Loss - Investigation - Analysis of information collected/ received - On perusal of Form filed with ROC in this respect clearly indicates that shares has been allotted by Renewables Private Ltd to First land Holdings Limited Mauritius source genuineness and creditworthiness of foreign entity - First land Holdings Limited Mauritius remains unexplained and needs further investigation - In this respect reference to competent authorities of Mauritius through FT & TR Division has been made - Held, This information is not something new to Assessing Officer fact that assesses had received such share application money from First land was part of assesses return - It is not as if Assessing Officer did not notice this information during scrutiny assessment - As noted above through series of correspondence between assesses and Assessing Officer this information was highlighted time and again channel of movement of fund source of fund purpose of investment and ultimate destination of fund were all part of record during assessment proceedings - There is nothing in reasons recorded by Assessing Officer to suggest that such investment is bogus - Petition is allowed.
JUDGMENT
Akil Kureshi, J. - Heard learned Counsel for the parties for final disposal of the Petition.
2. Petitioner has challenged a notice of reopening of an assessment dated 28th September, 2018, for the Assessment Year 2011-12.
3. Brief facts are as under:-
Petitioner is a Limited Company. For the Assessment Year 2011-12, the Petitioner had filed the return of income on 29th September, 2011, declaring loss of Rs. 5.97 Crores (rounded of). The Petitioner had filed revised return on 31st March, 2012, declaring loss of Rs. 6.45 Crores. Such return was taken in scrutiny by the Assessing Officer who passed order of assessment under Section 143(3) of the Income Tax, 1961 (in short "the Act") on 26th December, 2013. In order to do so, he recorded the following reasons:"
1. Brief details of the assesses: The original return of income was e-filed on 29/09/2011, declaring total income of Rs. Nil and current year loss at Rs. 5,97,19,479/. Subsequently, the revised return of income was e-filed on 31.03.2012 showing total income at Rs. Nil and current year loss at Rs. 6,45,41,300/. The case was selected for scrutiny for A. Y. 2011-12. The assessment was completed on 26/12/2013 determining total loss at Rs. 6,45,41,300/. The company is engaged in generation and sale of electricity through wind mill.
2. Brief details of information collected/received by the AO: In this case, information has been received from ADIT (INV.) UNIT4( 2), MUMBAI vide letter dated 15.03.2018, that NuPower Renewables Pvt. Ltd. has received amount of Rs. 49,90,48,000/from Mauritius based First land Holdings Ltd. in F. Y. 2010-11 being subscription towards 0.000% Compulsory Convertible Cumulative Preference shares (4,99,048 nos.)
3. Analysis of information collected/ received: On perusal of Form 2 filed with ROC in this respect clearly indicates that 4,99,048 nos. of shares has been allotted by M/s. NuPower Renewables Private Ltd. On 31.12.2010 to First land Holdings Limited, Mauritius. The source, genuineness and creditworthiness of the foreign entity M/s. First land Holdings Limited , Mauritius remains unexplained and needs further investigation. In this respect reference to the competent authorities of Mauritius through FT & TR Division has been made.
4. Findings of the AO: Under assessment of income to the extent of Rs. 49,90,48,000/involving potential tax effect of Rs. 16,96,26,415/.
5. Basis of forming reasons to believe and details of escapement of income:Information has been received from ADIT(INV.) UNIT4( 2), MUMBAI vide letter dated 15/03/2018, that NuPower Renewables Pvt. Ltd., has received amount of Rs. 49,90,49,000/from Mauritius based First land Holdings Ltd. In F. Y. 2010-11 being subscription towards 0.000% Compulsory Convertible Cumulative Preference Share (4,99,048 nos.)
On perusal of Form 2 filed with ROC in this respect clearly indicates that 4,99,048 no shares has been allotted by M/s. NuPower Renewables Pvt. Ltd., on 31.12.2010 First land Holdings Limited, Mauritius. The source, genuineness and creditworthiness of the foreign entity M/s. First land Holdings Limited, Mauritius remains unexplained needs further investigation. In this respect reference to the competent authorities of Mauritius through FT & TR Division has been made.
6. Escapement of income chargeable to tax in relation to any assets (including financial interest in any entity) located outside India: Not applicable.
7. Findings of the AO on true and full disclosure of the material facts necessary for assessment under Proviso to section 147: Findings on examination of records and verification thereof that the assesses had not disclosed fully and truly all material facts necessary for his assessment or that the facts of the case are covered by the explanation 1 to section 147 of the Act.
8. 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 and regular assessment under section 143(3) wa
