IMPORTANT POINT
Reopening of assessment under Section 148 is impermissible if it is based on previously examined issues without new material.

ORDER :

NIRAL R. MEHTA, J.

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has sought to challenge the Notice dated 31.3.2021 under Section 148 of the Income- Tax Act, 1961 (for short ‘the Act’) seeking, inter-alia, reopening of the assessment for the Assessment Year 2015- 16.

2. Brief facts of the case are as under :

2.1 The petitioner was engaged in e-commerce, information technology and IT enabled services. During the year under consideration, the petitioner had issued shares at premium at Rs.415/- per share. As a result thereof, in the annual account under the head ‘security’s premium’ which was Rs.1,03,58,75,980/- as on 31.3.2014 increased to Rs.2,28,09,76,200/- as on 31.3.2015. Thus, Rs.1,24,51,00,220/- increased in security’s premium.

2.2 The petitioner filed return of income for the year under consideration on 30.11.2015, declaring total loss at Rs.7,26,11,928/-. The case was selected for scrutiny and thereby, the then Assessing Officer issued notice dated 20.3.2017 under Section 142(1) of the Act. By way of said notice, following information and details were called for :

“(i) Complete details (viz. Name, PAN, bank statement, ITR and balance-sheet) of persons to whom shares have been allotted.

(ii) Basis of share premium received along with copies of share certificates issued to shareholders.

(iii) Board resolution for increase in the share capital of the petitioner.”

2.3 Apropos to the aforesaid notice, the petitioner submitted his reply dated 6.4.2017 along with following details :

“(i) Details of shareholders to whom fresh shares have been allotted.

(ii) Form PAS-3 filed with the ROC (i.e. Registrar of Companies).

(iii) Valuation report for the basis of share premium received in respect of fresh shares allotted.

(iv) Board resolution for increase in the share capital of the petitioner.”

2.4 On 31.3.2021, notice under Section 148 of the Act was issued by the revenue seeking, inter-alia, to reopen the assessment of the petitioner for the Assessment Year 2015-16. In furtherance thereto, the petitioner filed return of income on 27.4.2021 with a request to supply the reasons recorded for reopening of the case of the petitioner. The reasons recorded for reopening the case were supplied to the petitioner vide letter dated 19.5.2021. Thereafter, the petitioner submitted its objection vide letter dated 30.6.2021.

2.5 The respondent, however, vide order dated 1.3.2022 disposed of the objections and held that the action of reopening of assessment in case of the petitioner for the year under consideration is justified.

3. Being aggrieved by the aforesaid, the petitioner has approached this Court for the appropriate reliefs.

4. We have heard learned Senior Advocate Mr.Tushar Hemani with learned advocate Ms.Vaibhavi Parikh for the petitioner and learned advocate Mr.Varun K. Patel for the respondent.

5. Learned Senior Advocate Mr.Tushar Hemani for the petitioner, while challenging the impugned notice, has made the following submissions:

(1) Learned Senior Advocate Mr.Hemani submitted that reopening is beyond the period of 4 years and there is no failure on part of the petitioner as to true and full disclosure. To substantiate the aforesaid contention, learned Senior advocate has heavily placed reliance on the various documents such as annual account, notice dated 20.3.2017, letter dated 6.4.2017 and assessment order dated 20.4.2017. In view of aforesaid, learned Senior Advocate Mr.Tushar Hemani submitted that the conditions for reopening beyond the period of 4 years are not satisfied and thereby, the impugned notice deserves to be quashed and set aside.

(2) Learned Senior Advocate Mr.Hemani submitted that the reopening is based on merely a change of opinion. He further submitted that the case of the petitioner was selected for scrutiny and in that scrutiny, the case of the petitioner was examined thoroughly and at that stage, various documents were produced on record and keeping in mind those documents, ord