(Per K. R. Shriram, J.)
1. On 30th March 2016, the following order came to be passed while admitting the petition :
“Heard.
2 Admit.
3 This Petition challenges a notice dated 18 th March, 2015 issued under Section 148 of Income Tax Act, 1961 ( the), seeking to re-open the Assessment for the Assessment Year 2011-12. The reasons in support of the impugned notice proceeds on the basis that the Assessment for the subject Assessment Year was completed by intimation under Section 143(1) of the. The reasons in support of the impugned notice after stating that Petitioner is a 100% subsidiary company of M/s. BMK Laboratories Pvt. Ltd. who had invested in 9,90,000 equity shares of the Petitioner having a face value of Rs. 10/- each, at premium of Rs. 3,525/- per share, does not indicate the extent to which share premium received by the Petitioner-Assessee, is in excess of intrinsic value of its shares. It merely states on verification of the balance sheet and profit & loss account that intrinsic value of the company cannot be such as to get premium of Rs. 3,525/- on each shares. The exercise to find out the intrinsic value of shares is not reflected in the reasons recorded in support of the impugned notice to form a reasonable belief that income chargeable to tax has escaped assessment.
4. Further, prima facie, we find that the issue of premium received on share capital is concluded by the decision of this Court in Vodafone India Services v/s. CIT 368 ITR 1 in which it has been held that the amounts received on account of share premium is on capital account and cannot be subjected to tax as income.
5. Moreover, additionally, it may be pointed out that the reasons recorded does not take into the fact that the Petitioner is a 100% subsidiary company of BMK Laboratories Pvt. Ltd. which has invested the above amount, by converting its loan into equity shares after recording its status as a subsidiary. Further, it is also contended on behalf of the Petitioner that re-opening notice has been served upon on non-existing company. This issue will be considered at the final hearing.
6. In the above view, prima facie, the impugned notice is without jurisdiction as it does not disclose a reasonable belief that income chargeable to tax has escaped assessment. Accordingly, interim relief in terms of prayer clause (d).”
2. A similar issue came up for consideration in the recent matter before this Court in Godrej Projects Development Pvt. Ltd. v. Income Tax Officer, 1(1)(4) and Others 2024 SCC OnLine Bom 366 . There also the Court came to a finding that there was no basis for the Assessing Officer (“AO”) for his reason to believe that the income chargeable to tax had escaped assessment. The AO appears to have not been in doubt regarding the transaction having taken place between the two companies with regard to 9,90,000 equity shares and receipt of share premium amount and what is sought to be questioned is not the transaction, but the receipt of share premium amount, which was said to be excessive and much beyond the intrinsic value of shares.
3. Moreover, in any case the receipt of share capital including premium will be on capital account and will not give rise to any income. Therefore, there was neither any basis for the AO for his reason to believe that income chargeable to tax had escaped assessment, nor was there any tangible material which should have otherwise given jurisdiction to reopen the assessment.
4. In the circumstances, Rule granted on 30th March 2016, is made absolute in terms of prayer clause (a), which reads as under :
“a. that this Hon’ble Court be pleased to issue a Writ of Certiorari or any other Writ, Order or Direction under Article 226 of the Constitution of India, calling for the records of the case leading to the issue of the impugned notice and passing of the impugned order and after going through the same and examining the question of legality thereof quash, cancel and set aside the impugned notice (Exhibit I) and the impugned order (Exhibit Q).”
5. Petition disposed. There will be no order as to costs.
