Shri Hari Venkatasubramanian, CHENNAI V. DDIT, CHENNAI

CO 19/CHNY/2011

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6556 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 13-10-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 27-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: I VIJAYAKUMAR
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Capital asset; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 50C; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C CHENN AI BEFORE DR.O.K.NARAYANAN, VICE PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER .. ITA NO.2183/MDS./2010 ASSESSMENT Y EAR:2004-05 DEPUTY DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION, NO.121,M.G.ROAD, CHENNAI-34. VS. SHRI HARI VENKATASUBRAMANIAN, NO.268,JJ ROAD, ALWARPET, CHENNAI 600 018. PAN AANPS 2008 M (APPELLANT) (RESPONDENT) C.O. NO.09/MDS./2011 ASSESSMENT YEAR :2004-05 SHRI HARI VENKATASUBRAMANIAN, NO.268,JJ ROAD, ALWARPET, CHENNAI 600 018. VS. DEPUTY DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION, NO.121,M.G.ROAD, CHENNAI-34. PAN AANPS 2008 M (CROSS OBJECTOR) (APPELLANT IN APPEAL) DEPARTMENT BY : SHRI I. VIJAYAKUMAR, C.I.T. DR ASSESSEE BY : SHRI R.VIJAYARAGHAVAN ADVOCATE DATE OF HEARING : 18.10.11 DATE OF PRONOUNCEMENT : 24.10. 11 PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 2 O R D E R PER HARI OM MARATHA, JUDICIAL MEMBER : THE APPEAL BY THE REVENUE AND THE CROSS OBJECTIO N BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMM ISSIONER OF INCOME TAX(A), DATED 10.10.2010, PERTAINING TO T HE ASSESSMENT YEAR 2004-05. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE, AS INDIVIDUAL, AND AS A NON-RESIDENT, FIL ED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2004-05, ON13.09.200 4, DECLARING A TOTAL INCOME OF RS.3,71,315/-. INITIAL LY THE RETURN WAS PROCESSED U/S.143(1), ON 01.02.05. SUBSEQUENTL Y, REGULAR ASSESSMENT U/S.143(3) OF THE ACT WAS COMPLETED ON 2 2.11.06 AT THE DECLARED INCOME OF RS.3,71,320/-. THE ASSES SING OFFICER FOUND THAT WHILE COMPUTING CAPITAL GAIN, AS SESSEE HAS ADOPTED RS.3 CRORES AS SALE CONSIDERATION AND HAS N OT FOLLOWED THE GUIDELINE VALUE IN ACCORDANCE WITH SEC .50C OF THE ACT AND THEREFORE, INCOME CHARGEABLE TO TAX HAS ESC APED. ACCORDINGLY, AFTER RECORDING REASONS, HE ISSUED A N OTICE TO THE ASSESSEE U/S.148 DT.27.05.2008 AND IN COMPLIANCE TH EREOF, THE ASSESSEE FILED HIS OBJECTIONS, WHICH WERE REJECTED AND REASSESSMENT ORDER U/S.147 R.W.S.143(3) WAS COMPLET ED ON 31.12.2009, DETERMINING THE TOTAL INCOME AT RS.4,75 ,07,070/-, WHICH INCLUDED CAPITAL GAIN OF RS.4,71,35,750/-. I N COMPUTING THE ABOVE CAPITAL GAIN, THE ASSESSING OFFICER HAS A DOPTED SALE CONSIDERATION AT RS.8.07 CRORES AS PER THE GUIDELIN E VALUE PRESCRIBED FOR STAMP DUTY PURPOSES AS ON THE DATE O F THE AGREEMENT FOR SALE. BEING AGGRIEVED, THE ASSESSEE FILED FIRST PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 3 APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(A), CHALLENGING THE LEGALITY OF INITIATION OF REASSESSM ENT PROCEEDINGS AND ALSO ASSAILED ADDITION ON MERITS. T HE LD. COMMISSIONER OF INCOME TAX (A) HAS CONSIDERED THE L EGAL ISSUE AND HAS COME TO THE CONCLUSION THAT THE REOPE NING OF THE ASSESSMENT IS BASED ONLY AND SOLELY ON THE CHANGE O F ASSESSING OFFICERS OPINION, WHICH IS NOT PERMISSIB LE UNDER LAW. ACCORDINGLY, HE HAS QUASHED THE REASSESSMENT ORDER AND HAS REFRAINED FROM DECIDING THE ISSUE ON MERITS. N OW THE REVENUE IS AGGRIEVED AND HAS FILED THIS APPEAL BY R AISING THE FOLLOWING GROUNDS:- 1.THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A) IS CONTRARY TO THE LAW AND FACTS OF THE CASE . 2. THE LD. COMMISSIONER OF INCOME TAX(A) HAS ERRE D IN HOLDING THAT REASSEMENT WAS INITIATED ON MERE CHANGE OF OPINION. 2.1 IT IS SUBMITTED THAT THE INITIATION OF THE REASSESSMENT WAS NOT DONE ON THE BASIS OF CHANGE OF OPINION. THE PROVISO 1 TO SECTION 147 WHICH MAKES THE INITIATION OF REASSESSMENT RESTRICTIVE ON LY AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. 2.2. IT IS SUBMITTED THAT IN THE PRESENT CASE, TH E ASSESSMENT WAS COMPLETED ON 22.11.2006 AND THE NOTICE FOR INITIATION OF REASSESSMENT PROCEEDING WA S ISSUED ON 27.05.2008 WHICH WAS WELL WITHIN THE FOUR YEAR TIME LIMIT. PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 4 2.3. THE LD. COMMISSIONER OF INCOME TAX(A) OUGHT TO HAVE APPRECIATED THT IN THIS RESPECT, REFERENCE MAY BE MADE TO PROVISO 1 TO SECTION 147 WHICH MAKES THE INITIATION OF REASSESSMENT RESTRICTIVE ONLY AFT ER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVA NT ASSESSMENT YEAR. HERE, IN THE INSTANT CASE, THE ASSESSMENT WAS COMPLETED ON 22.11.2006 AND THE NOTICE FOR INITIATION OF REASSESSMENT PROCEEDING WA S ISSUED ON 27.5.2008 WHICH IS WELL WITHIN THE FOUR YEAR TIME LIMIT AND HENCE THE REASSESSMENT PROCEEDING HAS BEEN VALIDLY INITIATED. 2.4. THE LD. COMMISSIONER OF INCOME TAX(A) OUGHT TO HAVE APPRECIATED THAT AS PER SEC.147, IF THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY INCOME HAS ESCAPED ASSESSMENT AND WHICH COMES TO THE NOTICE OF THE ASSESSING OFFICER SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS U/S.147, THEN THE ASSESSING OFFICER CAN ASSESS OR REASSESS THE INCOME THAT HAS ESCAPED ASSESSMENT. THE ONLY TEST PRESCRIBED BY THE SECTION 147 IS THE REASON TO BELIEVE ON THE PART OF THE ASSESSING OFFICER WITH RESPECT TO THE ESCAPEMENT OF INCOME. IT IS SUBMITTE D THAT IN THE PRESENT CASE THE ASSESSING OFFICER HAD REASON TO BELIEVE THAT THE ASSESSEE HAD SUPPRESSED THE SALE CONSIDERATION AND THAT THE DIFFERENCE BETWEEN THE SALE CONSIDERATION DECLARED BY THE ASSESSEE AND THE VALUE AS PER THE STAMP VALUATION AUTHORITY VIZ. RS.5.07 CRORES CHARGEABLE TO TAX AS PER SEC 50C HAD ESCAPED ASSESSMENT. PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 5 3. THE ASSESSEE HAS FILED HIS CROSS OBJECTION IN R ELATION TO REVENUES APPEAL BY TAKING THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX(A) IS IN ACCORDANCE WITH LAW, FACTS AND CIRCUMSTANCES OF THE CASE AND IS REQUIRED TO BE SUSTAINED. 2. THE ORDER OF THE COMMISSIONER OF INCOME TAX(A) I S IN CONFORMITY WITH THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. KELVINATOR INDIA LTD 320 ITR 561 AND HENCE HAS TO BE UPHELD. 3. THE LD. COMMISSIONER OF INCOME TAX(A) WAS JUSTIF IED IN; HOLDING THAT WHEN ASSESSMENT WAS COMPLETED U/S.143(3) RAISING A SPECIFIC QUERY BY THE ASSESSIN G OFFICER REGARDING THE COMPUTATION OF CAPITAL GAINS AND HENCE REOPENING OF ASSESSMENT ON SAME FACTS WOULD AMOUNT TO CHANGE OF OPINION. 4. IN ANY EVENT THE ISSUE WHETHER PROVISIONS OF SEC .50C APPLY TO THE TRANSACTION WHERE THE SALE DEED IS NOT REGISTERED IS NOW SETTLED BY THE DECISION OF THE VARIOUS BENCHES OF TRIBUNAL. PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 6 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS PUT FORTH IN RELATION TO THE ISSUE OF LEGALITY OF ASSUMPTION OF JURISDICTION FOR REASSESSMENT PROCEEDINGS. THE CROSS OBJECTION FILE D BY THE ASSESSEE SUPPORTS THE FINDING OF LD. COMMISSIONER OF INCOME TAX (A). AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND THAT THE REASONS FOR REOPENING OF THE ASSESSM ENT COMPLETED ORIGINALLY U/S.143(3), ON 22.11.06, ARE G IVEN AND RECORDED AS UNDER:- THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2004-05 ON 13.09.04 DECLARING A TOT AL INCOME OF RS.3,71,315 COMPRISING OF INCOME FROM HOU SE PROPERTY, RS.1,22,385 AND INCOME FROM OTHER SOURCES RS.2,65,930. THE RETURN OF INCOME WAS PROCESSED U/S.143(1) ON 01.02.05. THE CASE WAS UNDER SCRUTIN Y U/S.143(3). THE ASSESSMENT WAS COMPLETED BY ACCEPTING THE RETURN OF INCOME OF THE ASSESSEE. IT IS OBSERVED THAT THE ASSESSEE HAS SOLD HIS PROPE RTY AT VIRUGAMBAKKAM AND HAD A CAPITAL GAIN OF RS.2.64 CRORES AND HAS CLAIMED THE ENTIRE AMOUNT AS EXEMPT U/S.50C. FOR THE PURPOSE OF COMPUTATION OF THE LTC G THE ASSESSEE HAS ADOPTED THE SALE CONSIDERATION AT RS.3 CRORES AND HAS STATED THAT THE PROPERTY IS AN AGRICULTURAL LAND BUT ON VERIFICATION OF THE DETAIL S FILED BY THE ASSESSEE IT IS FOUND THAT THE PROPERTY SO CALLE D AS AGRICULTURAL LAND HAS BEEN SOLD TO JAIN HOUSING AND CONSTRUCTION LTD. AND IT IS ALSO FOUND THAT THE JAI N HOUSING HAS PROMOTED THE PROPERTY INTO RESIDENTIAL FLATS. PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 7 IT IS ASCERTAINED FROM THE SUB-REGISTRAR OFFICE VIRUGAMBAKKAM THAT THE GUIDELINE VALUE OF THE ABOVE PROPERTY AS ON 01.04.03 AND 01.04.04 IS RS.1085 PER SQ. FEET OF THE LAND WORKING OUT TO RS.8.07 CRORES. (T OTAL VALUE OF THE PROPERTY). SINCE THE ASSESSEE DECLARED AS SALE CONSIDERATION ONLY RS.3 CRORES WHEREAS THE VAL UE OF THE STAMP VALUATION AUTHORITY DURING THE PERIOD WHE N THE PROPERTY WAS SOLD WAS RS.8.07 CRORES, THEE IS A DIFFERENCE IN VALUE OF RS.5.07 CRORES. DUE TO THIS THE PROVISIONS OF SECTION 50C BECOMES APPLICABLE IN THI S CASE IS (REPRODUCED BELOW):- (1) WHERE THE CONSIDERATION RECEIVE D OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED SHALL FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. THE SALE CONSIDERATION OF 8.07 CRORES NEEDS TO HAVE BEEN ADOPTED IN THE PLACE OF RS.3 CRORES FOR THE COMPUTATION OF LONG TERM CAPITAL GAINS. BUT THE ASSESSEE HAS DECLARED RS.3 CRORES AS SALE PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 8 CONSIDERATION AND CLAIMED INDEXED COST OF ACQUISITI ON AT RS.35,88,250 AND HAS ALSO MADE AN INVESTMENT IN THE RURAL ELECTRIFICATION BOND TO THE EXTENT OF RS.3 CR ORES, THE TAXABLE LTCG WHICH AS ESCAPED ASSESSMENT ROUGHLY WORKS OUT TO RS.4.71 CRORES. DUE TO THE ABO VE FACTS, I HAVE REASON TO BELIEVE THAT THE INCOME OF THE ASSESSEE FOR THE A.Y. 2004-05 HAS ESCAPED ASSESSMENT WHICH NEEDS TO BE BROUGHT TO TAX. HENCE THE CASE IS BEING REOPENED U/S.147. 5. IT WAS FOUND AND THERE IS DISPUTE IN CONNECTION WITH THE FACTS THAT THE ASSESSEE HAD DISCLOSED ALL THE DETAI LS REGARDING THE SALE OF LAND SITUATED AT VIRUGAMBAKKAM,CHENNAI IN ITS STATEMENT OF TOTAL INCOME. WHILE REPLYING A SPECIF IC QUERY REGARDING COMPUTATION OF CAPITAL GAIN ARISING FROM THE SALE OF THIS LAND, THE ASSESSEE HAD CLEARLY SUBMITTED VIDE LETTER DT.20.11.06, WHICH WAS ACCEPTED BY THE ASSESSING OF FICER. THE ASSESSEE ALSO FILED A COPY OF AGREEMENT FOR SAL E AND GENERAL POWER OF ATTORNEY EXECUTED IN FAVOUR OF THE BUYERS. WE MAY EXTRACT THIS SUBMISSION OF THE ASSESSEE HERE UNDER AS BELOW:- THE FOLLOWING CLARIFICATION IS GIVEN IN RESPECT OF SALE OF LAND AT VIRUGAMBAKKAM DURING THE YEAR BY THE ASSESSEE. THE ASSESSEE HAS SOLD LAND MEASURING APPROXIMATELY 31 GROUNDS AT NO.1, VEMBULLIAMMAN KOIL STREET, VIRUGAMBAKKAM, CHENNAI 600 092 TO PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 9 JAIN HOUSING & CONSTRUCTIONS LTD VIDE AGREEMENT FOR SALE DATED 03.03.2004 FOR A TOTAL CONSIDERATION OF RS.3 CRORES. THE ABOVE LAND HAS BEEN SOLD BY THE ASSESSEE AND VACANT POSSESSION OF THE PROPERTY WAS ALSO GIVEN ON THE DAY OF SIGNING OF THE AGREEMENT OF SALE. THE S ALE PRICE MENTIONED IN THE AGREEMENT IS THE CONSIDERATION RECEIVED FOR THE SALE OF LAND. THE ASSESSEE HAS SOLD THIS VACANT LAND TO THE BUILD ER FOR DEVELOPMENT OF FLATS OF THEIR CHOICE AND IN THI S REGARD HAS EXECUTED AND REGISTERED A GENERAL POWER OF ATTORNEY DATED 14.3.02 IN FAVOUR OF THE BUILDER TO NEGOTIATE AND CONVEY UNDIVIDED SHARE OF LAND TO THE ULTIMATE BUYERS OF THE FLATS FOR SALE CONSIDERATION AS THE BUILDER MAY THINK FIT AND PROPER. UNDER THE CIRCUMSTANCES, THE SALE PRICE AS PER AGREEMENT FOR SALE BECOMES FINAL BETWEEN THE ASSESSEE AND THE BUILDER AND THE QUESTION OF APPLICABILITY OF SECTIO N 50C IT ACT DOES NOT ARISE IN THIS TYPE OF SALE TRANSACTION. THE GUIDELINE VALUE APPLICABLE FOR THE REGISTRATION OF UNDIVIDED SHARE OF LAND TO VARIOUS BUYERS OF FLATS WILL ARISE ON A MUCH LATER DATE. THE APPLICABILITY OF SECTION 50C OF IT ACT I.E. GUIDELINE VALUE FOR UNDIVIDED SHARE OF LAND WILL ARISE ONLY AT THAT POI NT OF TIME AND THE BUILDER IS ACCOUNTABLE FOR THE GUIDELI NE PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 10 VALUE OR SALE VALUE WHICHEVER IS HIGHER AS PER SECTION 50C OF INCOME TAX ACT. UPON EXECUTION OF THE GENERAL POWER OF ATTORNEY BY THE ASSESSEE AND HANDING OVER OF VACANT POSSESSION THE TRANSFER IS COMPLETE AND THE SALE PRICE IS ALSO FINAL AND ACCORDINGLY THE VALUE OF RS.3 CRORES CAN ONLY BE CONSIDERED AS THE FULL VALUE OF CONSIDERATI ON RECEIVED AS A RESULT OF THE TRANSFER OF LAND BY THE ASSESSEE TO THE BUILDER. 6. WE HAVE FOUND THAT AFTER CONSIDERING THE DETAIL ED REPLY OF THE ASSESSEE, THE ASSESSING OFFICER TOOK A CONSCIOU S DECISION AT THE TIME OF FRAMING ORIGINAL ASSESSMENT ORDER AN D AFTER ACCEPTING THE SALE CONSIDERATION OF THE PROPERTY AT RS.3 CRORES. WE HAVE ALSO FOUND THAT ALL THE DETAILS WERE PRODUC ED BEFORE THE ASSESSING OFFICER, IN THE RETURN, AS WELL AS IN THE SUBMISSIONS/ WRITTEN SUBMISSION FILED DURING THE CO URSE OF ORIGINAL ASSESSMENT PROCEEDINGS. IT IS NOTICED THA T, IN FACT, THE SALE DEED IS NOT REGISTERED. IT IS NOTICED THAT AL L THE DOCUMENTS WITH REFERENCE TO WHICH THE ASSESSING OFFICER HAS N OW FORMED HIS OPINION TOWARDS ALLEGED ESCAPED INCOME, WERE VE RILY AVAILABLE BEFORE THE ASSESSING OFFICER DURING THE O RIGINAL ASSESSMENT PROCEEDINGS. THE MACROSCOPIC PERUSAL OF THE REASON EXTRACTED HEREIN-ABOVE CLEARLY EVINCES THAT THE REOPENING HAS BEEN ATTRIBUTED TO ASSESSING OFFICER S OMISSION TO CONSIDER THE GUIDELINE VALUE IN ACCORDANCE WITH SEC.50C WITH REGARD TO THE PROPERTY IN QUESTION. TO THE CO NTRARY, IT IS FOUND THAT THE ASSESSING OFFICER HAS ACTUALLY EXAMI NED THIS PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 11 ISSUE AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDING S AND THE ASSESSEE HAD FILED ENTIRE DETAILS TO SHOW THAT ASSE SSING OFFICER HAD TAKEN CONSCIOUS DECISION DURING THE ORI GINAL ASSESSMENT PROCEEDINGS BY ACCEPTING THE SALE CONSID ERATION ADOPTED BY THE ASSESSEE. THE REASONS CLEARLY SHOW THAT IT IS BASED ON CHANGE OF OPINION OF THE ASSESSING OFFICER . THERE IS NO OUTSIDE MATERIAL WHICH CAN BE SAID TO HAVE COME TO THE KNOWLEDGE OF THE ASSESSING OFFICER AFTER THE ASSESS MENT ORDER WAS FRAMED. ANY FRESH OPINION TAKEN AFTER RECONSID ERING THE SAME MATERIAL AVAILABLE BEFORE HIM AMOUNTS TO A CHA NGE OF OPINION, WHICH IS NOT AT ALL PERMISSIBLE IN LAW. T HE SUPREME COURT WHILE DECIDING THE CASE OF COMMISSIONER OF IN COME TAX VS. KELVINATOR OF INDIA LTD. REPORTED IN [2010] 320 ITR 561 (SC) HAS CLEARLY SETTLED THIS LEGAL POSITION. IT HAS BE EN HELD THAT EVEN AFTER AMENDMENT TO SEC.147 WITH EFFECT FROM 01 .04.1989, THE CONCEPT OF CHANGE OF OPINION ON THE PART OF THE ASSESSING OFFICER TO REOPEN AN ASSESSMENT DOES NOT STAND OBLITERATED. THE CONCEPT OF CHANGE OF OPINION IS TO BE TREATED AS AN IN-BUILT TEST TO CHECK THE ABUSE OF POWER. WE HAVE FOUND THAT NO TANGIBLE MATERIAL CAME TO THE KN OWLEDGE OF THE ASSESSING OFFICER. ON THE BASIS OF DIFFERENT V IEW CAN BE TAKEN BY ASSESSING OFFICER, AFTER COMPLETION OF ORI GINAL ASSESSMENT ORDER TO FORM HIS OPINION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT. THUS, THE REASON RECORD ED BY THE ASSESSING OFFICER HAS GOT NO LINK WITH HIS FORMATIO N OF SUCH BELIEF. ACCORDINGLY, WE DO NOT FIND ANY REASON TO INTERFERE WITH THIS FINDING OF THE LD. COMMISSIONER OF INCOME TAX (A) AND ACCORDINGLY, WE CONFIRM THE SAME AND DISMISS THE AP PEAL OF THE REVENUE. PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 12 7. THE CROSS OBJECTION BEING IN SUPPORT OF THE COMMISSIONER OF INCOME TAX(A)S ORDER SIMPLICITER A ND DIDACTIC, WE DISMISS THE SAME. 8. IN RESULT, BOTH APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE STAND DISMISSED. ORDER PRONOUNCED ON 24 TH OCTOBER, 2011. SD/- SD/- (DR.O.K.NARAYANAN ) ( HARI OM MARATHA ) VICE PRESIDENT JUDICIAL MEMBER CHENNAI, DATED THE 24 TH OCTOBER, 2011. K S SUNDARAM COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE PAGE OF 13 ITA. 2183/MDS/10 CO NO.09/MDS/11 SHRI HARI VENKATASUBRAMANIAN 13 DATE INITIALS 1. DRAFT DICTATED ON 2. DRAFT PLACED BEFORE AUTHORITY 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S. 6. KEEP FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE 9. DATE OF DISPATCH OF ORDER