Point of Law: Intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise.

JUDGMENT :

J.B.PARDIWALA, J.

1. By this writ-application under Article 226 of the Constitution of India, the writ-application has prayed for the following reliefs :

“(A) Issue a writ of certiorari and/or a writ of mandamus and/or any other writ, direction or order to quash and set aside the impugned notice dated 30.3.2018 under section 148 of the Income-tax Act, 1961 annexed hereto at Annexure-B along with preliminary order dated 23.10.2018 annexed hereto at Annexure-F for proceeding and completing reassessment proceedings.

(B) Pending admission, hearing and disposal of this petition, ad-interim relief be granted and the respondent be ordered to restrain from enforcing compliance of the impugned notice dated 30.3.2018 at Annexure-B and/or taking any other steps in this regard including reassessment order or implementation of preliminary order dated 23.10.2018 at Annexure-F and further notices issued for purpose of reassessment.

(B1) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction for quashing and setting aside the impugned assessment order dated 24.12.2018 under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 at Annexure-G collectively.

(B2) Pending admission, hearing and final disposal of the present petition, be pleased to stay the implementation, operation and execution of the impugned assessment order dated 24.12.2018 under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 at Annexure-G collectively.

(C) Award the cost of this petition.

(D) Grant such other and further reliefs as this Hon'ble Court deems fit.”

2. The subject matter of challenge in the present litigation is to the notice of re-opening issued under Section 148 of the Income Tax Act, 1961 (for short, 'the Act') for the Assessment Year 2011-12 in a case where the return of income was processed for the relevant year under Section 143(1) of the Act. Otherwise, the re-opening is beyond the period of four years. The reasons assigned by the Assessing Officer for re-opening are as under :

“The assessee company filed its return of income for A.Y. 2011-12 on 26.09.2011 declaring total income of Rs.19,38,960/-. In this case, there is no assessment as stipulated u/s.2(40) of the Act was made and the return of income was only processed u/s.143(1) of the Act.

2. In this case, during the year under consideration, there was a huge increase in share capital & premium of the assessee company. As per the details available, the assessee has received share capital and share premium from the following Kolkata based companies which were proved shell companies by income tax department during the various survey/search proceedings.

Thus, the assessee company has received total share capital money of Rs.40,00,000/- from Kolkata based shell companies during the year under consideration.

3. In the recent past, it is noticed that many companies all over India has introduced share capital and share premium in their books of accounts from the various entities, which proven to be bogus and was engaged in the providing of accommodation entries. In such connection, in recent year, through various search & seizure operations/ survey operations/ investigations/ inquiries/ other related action on shell companies operated throughout India by the Income-tax department as well as other Government agencies (via Enforcement Directorate/ CBI/ SFIO etc.) based on which data base of such shell companies are prepared from time to time. Further in course of such act