Shri Sachiyaya Mataji Trust, JODHPUR V. DCIT, JODHPUR

CO 20/JODH/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 9073 (ITAT-JODHPUR)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 13-11-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 26-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGAL
• Assessee Lawyers: SURESH GANG
• Keywords: Reopening of assessment; Depreciation; Rectification of order; Charitable institution; Cost of acquisition; Wrong claim; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings; Capital expenditure
• Section: 143(3); 142(1); 12A; 147; 148; 263; 154

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 360 & 361/JODH/2013 (A.YS. 2006-07 & 2007-08) AND ITA NO. 205/JODH/2011 (A.YS. 2008-09) ITO, VS. SHRI SACHIYAYA MATAJI TRUST, WARD-2(2), OSIAN, JODHPUR. JODHPUR. PAN NO. AACTS 7448 E (APPELLANT) (RESPONDENT) C.O. NOS. 20 & 21/JODH/2013 (ITA NO. 360 & 361/JODH/2013) (A.YS. 2006-07 & 2007-08) AND C.O.NO. 30/JODH/2011 (ITA NO. 205/JODH/2011) (A.YS. 2008-09) SHRI SACHIYAYA MATAJI TRUST, VS. ITO, CIRCLE-2, OSIAN, JODHPUR. JODHPUR. PAN NO. AACTS 7448 E (APPELLANT) (RESPONDENT) 2 ASSESSEE BY : SHRI SURESH GANG DEPARTMENT BY : DR. DEEPAK SEHGAL- D.R. DATE OF HEARING : 13/11/2013. DATE OF PRONOUNCEMENT : 21/11/2013. O R D E R PER N.K.SAINI, A.M THESE APPEALS BY THE DEPARTMENT AND THE CROSS OBJE CTIONS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS E ACH DATED 23/05/2013 FOR THE A.Y. 2006-07 & 2007-08 AND THE ORDER DATED 15/03/2011 FOR THE A.Y. 2008-09 PASSED BY THE LEARNED CIT(A) JODHPUR. SINCE, THE ISSUES INVOLVED ARE SAME AND THE APPEALS ALONG WITH CROSS OBJECTIONS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OFF BY THIS C ONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE WILL DEAL WITH C.O. NO. 20/JODH/2013 FOR THE A.Y. 2006-07. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS CROS S OBJECTION:- 1. THAT THE FACTS AND LAW, IN THE CIRCUMSTANCES OF THE CASE AND IN VIEW OF EVIDENCE ON RECORD, THE LEARNED LOWER AUTHORITIES E RRED IN ISSUING NOTICE U/S 148 OF I.T. ACT, 1961, DATED 29/01/2010, WITHOUT ASSUMING JURISDICTION AND VALID REASONS, THEREFORE, IS BAD I N LAW AND LIABLE TO BE QUASHED. 3 2. THAT ON FACTS AND LAW, IN THE CIRCUMSTANCES OF T HE CASE AND IN VIEW OF EVIDENCE ON RECORD, THE LEARNED LOWER AUTHORITIES HAS GROSSLY IGNORED AND OVERLOOKED THE FACTS THAT THE SAID TRUS T IS NOTIFIED U/S 10(23C)(V) OF THE I.T. ACT, 1961. 3. THAT ON FACTS AND LAW, IN THE CIRCUMSTANCES OF T HE CASE AND IN VIEW OF EVIDENCE ON RECORD, THE LEARNED LOWER AUTHORITIES E RRED IN ALLOWING THE BENEFIT OF EXCESS APPLICATION OF INCOME IN EARL IER YEARS. 4. THAT ON FACTS AND LAW, IN THE CIRCUMSTANCES OF T HE CASE AND IN VIEW OF EVIDENCE ON RECORD, THE LEARNED CIT(A) ERRED IN HO LDING THAT THE DEDUCTION OF DEPRECIATION FOR THE PURPOSE OF DETERM INATION OF PERCENTAGE OF FUNDS SHOULD BE CALCULATED WITH REFER ENCE TO TOTAL INCOME AS REDUCED BY DEPRECIATION. 5. THAT ON FACTS AND LAW, IN THE CIRCUMSTANCES OF T HE CASE AND THE VIEW OF EVIDENCE ON RECORD, THE ASSESSEE (RESPONDENT) TR USTS REQUEST FOR COST MAY BE AWARDED. 6. THE RESPONDENT CRAVES LEAVE TO ADD, AMEND, ALTER , MODIFY OR SUBSTITUTE ANY GROUND OF CROSS OBJECTION ON OR BEFO RE THE DAY OF HEARING. 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND NO .1 RELATES TO THE VALIDITY OF REOPENING BY ISSUING NOTICE UNDER SECTI ON 148 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT ). 4. FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT THE ASSESSEE IS A RELIGIOUS AND CHARITABLE TRUST HAVING REGISTRATION UNDER SECTION 12A OF THE ACT. THE ASSESSEE FILED RETURN OF INCOME ON 29/03/ 2007 DECLARING TOTAL LOSS OF RS. 9,97,032/-. THE ASSESSING OFFICER COMP LETED THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) OF THE ACT ON 01/12 /2008. SUBSEQUENTLY, A NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED BY 4 INTIMATING THE REASONS FOR ISSUANCE OF NOTICE. THE ASSESSEE FILED OBJECTIONS VIDE LETTER DATED 01/11/2010, WHICH WERE REJECTED BY THE ASSESSING OFFICER VIDE HIS LETTER DATED 02/11/2010. THE ASSESSING OFFICER COMPLETED ASSESSMENT UNDER SECTION 143(3) R.W.S. 14 8 OF THE ACT ON 28/12/2010 DETERMINING THE TOTAL INCOME AT RS. 98,3 2,682/-. 5. THE ASSESSEE CHALLENGED THE ISSUANCE OF NOTICE U NDER SECTION 148 OF THE ACT BEFORE THE LEARNED CIT(A) AND SUBMITTED THA T THE REASONS RECORDED BY THE ASSESSING OFFICER WERE NOT RELEVANT TO THE FACTS AND WERE WITHOUT ANY BASIS AND EVIDENCES, WHICH DID NOT JUST IFY INITIATING THE PROCEEDINGS UNDER SECTION 148 OF THE ACT. IT WAS F URTHER STATED THAT THE ASSESSEE FURNISHED DETAILS OF INTEREST FROM SBBJ AN D SBI ON DEPOSITS AND SAVING BANK ACCOUNTS ANNEXED WITH AUDIT REPORT AND AUDITED STATEMENT OF ACCOUNTS, WHICH WERE CREDITED TO THE INCOME AND EXP ENDITURE ACCOUNT. IT WAS FURTHER STATED THAT THE DONATIONS WERE TOWAR DS CORPUS FUND AND EARMARKED FUNDS WITH SPECIFIC DIRECTION OF DONORS, WHICH WERE COVERED UNDER SECTION11(D) R.W.S. 12(1) OF THE ACT. SO THE DONATIONS WHICH WERE RECEIVED WITH SPECIFIC DIRECTIONS DID NOT COME UNDE R PREVIEW OF SECTION 12(1) OF THE ACT. THEREFORE, THE ASSESSING OFFICER HAD NO REASON TO BELIEVE THAT THE INCOME HAS ESCAPED FOR ASSESSMENT OR WRONGLY CLAIMED ANY DEDUCTION. THEREFORE, REOPENING OF AN ASSESSME NT WAS NOT JUSTIFIED. 5 6. LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS O F THE ASSESSEE OBSERVED THAT THE ASSESSING OFFICER BEFORE ISSUING NOTICE UNDER SECTION 148 OF THE ACT, RECORDED THE REASONS AS PROVIDED UN DER SECTION 148(2) OF THE ACT, WHICH WERE FOUND TO BE CORRECT AND AFTER M AKING PROPER AND REASONABLE BELIEF OF ESCAPEMENT OF ASSESSMENT, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 OF THE ACT. THEREF ORE, THE PROCEEDINGS INITIATED UNDER SECTION 147 OF THE ACT WERE IN ORDE R. NOW, THE ASSESSEE HAS FILED CROSS OBJECTION. 7 . LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT WHILE FRAMING THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT, THE THEN ASSESSING OFFICER EXAMINED ALL THE ISSUES WHICH WERE CONSIDERED BY TH E ASSESSING OFFICER WHILE REOPENING THE ASSESSMENT, THEREFORE, REOPENIN G WAS DONE ON THE CHANGE OF OPINION, WHICH IS NOT PERMISSIBLE. IT WA S FURTHER SUBMITTED THAT THE ASSESSING OFFICER AFTER DEEP SCRUTINY FRAM ED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 01 /12/2008 AND GAVE A CATEGORICAL FINDING THAT THE ASSESSEE INCURRED THE EXCESS EXPENDITURE OF 15% IN TOTAL RECEIPTS, THEREFORE, THE REOPENING BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT ON THE BASIS OF CHANGE OF OP INION WAS NOT JUSTIFIED. 6 8. IN HIS RIVAL SUBMISSIONS, LEARNED D.R. STRONGLY SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT SINCE THE INCOME ESCAPED THE ASSESSMENT AND THE ASSESSING OFFICER HA D REASON TO BELIEVE THAT THERE WAS ESCAPEMENT OF INCOME, THEREFORE, REO PENING OF THE ASSESSMENT UNDER SECTION147 OF THE ACT BY RECORDING THE PROPER REASON WAS JUSTIFIED. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PART IES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE, IT IS NOTICED FROM COPY OF THE REASONS RECORD ED PLACED AT PAGE NO.5 OF THE ASSESSEES PAPER BOOK THAT THE ASSESSING OFF ICER RECORDED THE FOLLOWING REASONS FOR ISSUING NOTICE UNDER SECTION 148 OF THE ACT. IN THIS CASE RETURN OF INCOME WAS FILED ON 29/03/2 007 DECLARING NIL INCOME. ASSESSMENT U/S 143(3) WAS COMPLETED ON 01/ 12/2008 AT NIL INCOME. ASSESSEE TRUST IS REGISTERED U/S 12A. IN THE INCOME AND EXPENDITURE ACCOUNT (I & E A/C) THE ASSESSEE HAS CL AIMED DEPRECIATION OF RS. 1297637/- ON ASSETS. IN VIEW OF THE DECISION O F SUPREME COURT AT 199 ITR 43 THE EXPENDITURE ON CAPITAL EXPENDITURE HAS B EEN FULLY ALLOWED AS APPLICATION OF INCOME THEREFORE, DEPRECIATION BEING DOUBLE DEDUCTION IS NOT ALLOWABLE. WRONG CLAIM OF DEPRECIATION HAS BEEN MA DE AND ALLOWED. THE ASSESSEE HAS FDR IN BANKS OF ABOUT RS. 4 CRORE ON WHICH INTEREST OF ONLY RS. 113486/- HAS BEEN CREDITED IN I & E A/C. THE F DR INTEREST INCOME IS ABOUT 30 LACS, HENCE BALANCE AMOUNT OF INTEREST HAS ESCAPED ASSESSMENT. THE ASSESSEE HAS SHOWN RECEIPT OF DONATIONS OF RS. 256830/- FOR CORPUS FUND. OTHER THAN CORPUS FUND THE ASSESSEE HAS DECL ARED SURPLUS DONATIONS OF RS. 10703423/- WHICH IS INCOME FROM PROPERTY HEL D FOR THE PURPOSE OF THE ASSESSEE TRUST. THIS INCOME WAS NEITHER OFFERE D FOR TAX NOR HAS BEEN 7 TAXED AND HAS ESCAPED ASSESSMENT. LIKE-WISE DONATI ONS RECEIVED IN KIND AS GOLD AND SILVER JEWELRY AND ARTICLES AS VOLUNTARY C ONTRIBUTIONS IS ALSO INCOME OF THE TRUST FROM PROPERTY, LIABLE TO TAX. THE SAM E HAS NOT BEEN TAXED AND HAS ESCAPED ASSESSMENT. ON THE BASIS OF THE ABOVE FACTS, I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. 10. FROM THE ABOVE REASONS RECORDED, IT IS CLEAR THAT T HE REOPENING WAS DONE BY THE ASSESSING OFFICER ON 03 COUNTS:- (1) WR ONG CLAIM OF DEPRECIATION (2) LESS INTEREST INCOME WAS SHOWN (3) OTHER THAN CORPUS FUND DONATIONS HAD NOT BEEN OFFERED FOR TAXATION. IT IS ALSO NOTICED THAT THE ASSESSING OFFICER DURING THE ORIGINAL ASSESSMEN T PROCEEDINGS, ISSUED NOTICE UNDER SECTION 142(1) AND 143(2) OF THE ACT ( COPY PLACED AT PAGE NOS. 12 TO 14 OF THE ASSESSEES PAPER BOOK) AND ASK ED THE ASSESSEE TO FURNISH THE FOLLOWING DETAILS:- 1. COMPLETE ADDRESSES OF OFFICES, BRANCH OFFICES, AND GODOWNS FACTORIES ALONG WITH TELEPHONE NUMBERS. 2. COMPLETE RESIDENTIAL ADDRESS WITH TELEPHONE NUMB ERS OF ALL PARTNERS, DIRECTORS, THEIR ASSESSMENT PARTICULARS AND THEIR C OPY OF ACCOUNTS IN YOUR BOOKS. IDENTIFY VARIOUS PAYMENTS TO THEM AS R EMUNERATIONS, INTEREST COMMISSION, FEE ETC. AND VARIOUS OTHER BE NEFITS ALLOWED TO THEM AS PERQUISITES. ALSO STATED SERVICES RENDERED BY THEM. 3. IF ANY CHANGE IN CONSTITUTION OF THE FIRM, FURNI SH SUPPORTING AGREEMENT AND OTHER EVIDENCE FOR VERIFICATION OF YO UR CLAIM. 4. GIVE COMPLETE ADDRESS OF ASSOCIATE/SISTER CONCER NS ALONG WITH DETAILS OF TRANSACTION WITH THEM. JUSTIFY REASONABLENESS O F PAYMENTS, IF ANY VIS--VIS MARKET VALUE OF GOODS/SERVICES. FURNISH THEIR CERTIFIED COPY OF ACCOUNTS. 8 5. MONTH WISE DETAILS OF PURCHASE, CONSUMPTION, PRO DUCTION AND SALES. GIVE QUANTITATIVE AND VALUE-WISE DETAILS AND WORKOU T MONTH WISE G.P., YIELD AND OTHER SHORTAGES. 6. PARTICULARS OF ALL PARTIES WITH WHOM PURCHASE/SA LES/JOB WORKS TRANSACTION EXCEEDED RS. 50,000/- IN THE ACCOUNTING YEAR. GIVE THEIR FULL ADDRESSES AND CERTIFIED COPY OF ACCOUNTS. 7. GIVE SHORT NOTE ON MANUFACTURING PROCESS DETAILI NG QUANTITATIVE RATIO OF VARIOUS RAW MATERIAL REQUIRED FOR PRODUCTION OF EACH UNIT OF FINISHED PRODUCT. 8. GIVE DETAILED NOTE OF DISCOUNTS, REBATES ALLOWED OR COMMISSION PAID AND BASIS FOR THE SAME. 9. GIVE DETAILS OF JOB WORK, IF ANY DONE FOR OTHERS OR GOT DONE FROM OTHERS. GIVE QUANTITATIVE VALUE-WISE DETAILS AND N AMES AND ADDRESSES OF RESPECTIVE PARTIES. 10. IF SALES ARE THROUGH AGENTS, THEN GIVE NAMES AN D ADDRESSES OF SUCH AGENTS, BUSINESS DONE THROUGH THEM, COPY OF AGREEME NT WITH SUCH PARTIES, BRIEF DETAILS OF SERVICES RENDERED BY THEM AND RATE AT WHICH PAYMENT IS MADE TO THEM. FURNISH COPIES OF ACCOUNT , SPECIFYING CHEQUE/DD NO. WITH BANK AND BRANCH IN RESPECT OF EA CH PAYMENT MADE TO THEM. 11. IF THE SYSTEM OF ACCOUNTING IS MIXED, PLEASE CL ARIFY IN RESPECT OF WHICH KIND OF TRANSACTIONS, THE SYSTEM OF ACCOUNTING IN C ASH END IN RESPECT OF WHICH OF THE TRANSACTIONS IT IS MERCANTILE. PLE ASE FURNISH A LIST OF BOOKS OF ACCOUNTS, REGISTERS & OTHER RECORD MAINTAI NED. 12. STATE METHOD OF STOCK VALUATION. PLEASE FURNIS H THE INVENTORY OF CLOSING AND OPENING STOCKS OF RAW MATERIALS, WORK-I N-PROGRESS, FINISHED GOODS, STORES AND SPARES, BYE PRODUCTS, SC RAP ETC. 13. PLEASE FURNISH COMPLETE DETAILS OF EXPENSES OF CAPITAL NATURE. 14. IN CASE OF STOCKS ARE HYPOTHECATED/PLEDGED WITH ANY BANK. PLEASE FURNISH THE COPIES OF PERIODICAL STOCK STATEMENTS S UBMITTED TO SUCH BANKS DULY CERTIFIED BY THE BANK. 15. PLEASE FURNISH COMPARATIVE DETAILS OF EXPENSES UNDER EACH HEAD CLAIMED IN THE TRADING/MANUFACTURING P & L ACCOUNT FOR THE YEAR WITH EARLIER TWO YEARS AND EXPLAIN THE INCREASE IN ANY O F THE EXPENSES. 16. PLEASE COMPARE THE G.P. RATE FOR THE YEAR WITH EARLIER TWO YEARS AND GIVE REASONS FOR FALL IN G.P. RATE, IF ANY. 9 17. FULL PARTICULARS OF INTEREST PAYMENTS/RECEIPT, RATE OF SUCH INTEREST PAID TO/RECEIVED FROM VARIOUS PARTIES. 18. PARTICULARS OF TAX, DUTY AND OTHER ITEMS OF THE NATURE SPECIFIED IN THE SECTION 43-B OF THE I.T. ACT, STATE WHETHER SAME HA VE BEEN PAID IN DUE TIME. IF YES, PRODUCE SUPPORTING DOCUMENTS. 19. PLEASE LET ME KNOW DETAILS OF OTHER INCOME. MIS C. INCOME AND MISC. RECEIPTS, IF ANY. 20. FURNISH CONFIRMATION LETTERS IN DUPLICATES OF A LL FRESH BORROWING INCLUDING SQUARED UP LOANS. GIVE FULL ADDRESSES AND ASSESSMENT PARTICULARS OF SUCH LOANEES. MENTION MODE OF RECEI PT OF EACH SUCH AMOUNT AND SPECIFY CHEQUE/DD NO. ALONG WITH BANK & BRANCH. ALSO PRODUCE SUPPORTING PAPERS LIKE BALANCE-SHEET/CAPITA L ACCOUNTS/STATEMENT OF AFFAIRS RELEVANT BANK PASS BO OK ETC. OF THE LOANEE TO EVIDENCE SOURCES OF FUNDS IN THE HANDS OF LOANEE FOR ADVANCEMENTS OF LOANS. 21. IDENTIFY CREDITORS/LIABILITIES, WHICH ARE PENDI NG FOR THREE YEARS OR MORE. STATE REASONS FOR NON-PAYMENT. FURNISH FULL ADDRESS OF SUCH CREDITORS ALONG WITH CONFIRMATION. 22. PARTICULARS OF SEARCH/SURVEY CONDUCTED DURING T HE ACCOUNTING PERIOD BY THE EXCISE/CUSTOM/ENFORCEMENT/INCOME-TAX AND OTH ER LAW ENFORCING AUTHORITIES. GIVE DETAILS OF SEIZURES EF FECTED AND RESULTS OF SUCH ACTION AS COMMUNICATED TO YOU. PRODUCE RELEVA NT PAPERS FOR PERUSAL. 23. PARTICULARS OF ASSETS, ACQUIRED DURING THE LAST FIVE YEAR. GIVE FULL WORKING OF COST OF ACQUISITION WITH SUPPORTING BILL S/PAPERS (SAY REGISTRATION PAPERS IN RESPECT OF VEHICLES AND IMMO VABLE PROPERTIES). IF ANY CONSTRUCTION WORK IS GOT DONE, GIVE FULL DES CRIPTION OF THE STRUCTURE CONSTRUCTED (WITH MAP), WORKING OF MATERI ALS AND LABOUR COST. ALSO IDENTIFY PAYEES. 24. DETAILS OF SALARY/WAGES/BONUS PAYMENT-EMPLOYEE- WISE AND MONTH- WISE. 25. IDENTIFY ALL EACH BORROWINGS/REPAYMENTS OF BORR OWINGS AND SPECIFY THE TRANSACTION IN CONTRAVENTION OF PROVISIONS OF S ECTION 269SS AND 269T IF ANY. 26. IDENTIFY ALL PAYMENTS EXCEEDING RS. 2000/- DURI NG THE ACCOUNTING YEAR MADE OTHERWISE THAN CROSSED CHEQUE DRAWN ON A BANK OR BANK DRAFT. 10 27. FURNISH COPY OF SALES TAX ASSTT. ORDER RELEVANT TO ABOVE A.Y. AND STATE WHETHER ANY PENALTY HAD BEEN LEVIED OR NOT IF LEVIE D THAN PRODUCE COPY OF PENALTY ORDER ALSO. 28. FULL DETAILS OF BANK ACCOUNTS MAINTAINED BY YOU . GIVE BANK RECONCILIATION STATEMENT. ALSO GIVE DETAILS OF VAR IOUS DEPOSIT/ASSETS PLEDGED TO BANK AGAINST ANY OVER-DRAFT ACCOUNT. TH E DETAILS SHOULD INCLUDE SHARES, SECURITIES AND DEPOSITS OF DIRECTOR S AND PARTNERS, THEIR RELATIVES OR OTHER PERSONS, WHICH ARE PLEDGED TO BANK AS COLLATERAL SECURITY. 29. PLEASE FURNISH DETAILS OF FDRS, TERM DEPOSITS N .S.CS. & OTHER INTEREST BEARING ASSETS AND ALSO FURNISH COMPUTATION OF INTE REST INCOME THERE FROM KEEPING IN VIEW THE SYSTEM OF ACCOUNTING FOLLO WED BY YOU. THE INFORMATION MAY ALSO BE FURNISHED IN RESPECT OF ALL PARTNERS OF THE FIRM/DIRECTORS OF THE COMPANY. 30. DETAILS OF PERSONAL EXPENSES OF DIRECTOR/PARTNE RS DEBITED IN ACCOUNTS. ALSO STATE WHETHER DIRECTORS/PARTNERS HA VE TELEPHONE/ VEHICLE FOR THEIR SEPARATE PERSONAL USE. 31. FURNISH HEAD WISE DETAILS OF HOUSE HOLD EXPENSE S AND SPECIFY ANY EXPENSES INCURRED FOR MARRIAGE CEREMONY, BIRTHDAY C EREMONY, RELIGIOUS TRAVELING ETC. PRODUCE ALL BOOKS VOUCHERS BILLS, DOCUMENTS SUPPORT ING THE ABOVE PARTICULARS. 11. FROM THE ABOVE QUESTIONNAIRE, IT IS CLEAR THAT THE ASSESSING OFFICER ASKED FULL DETAILS OF PAYMENTS OR RECEIPTS OF INTER EST VIDE POINT NO. 17 AND DETAILS OF FDRS VIDE POINT NO. 29. THE ASSESSI NG OFFICER VIDE POINT NO. 23 ASKED THE DETAILS AND PARTICULARS OF ASSETS ACQUIRED AND FULL WORKING OF COST OF ACQUISITION ETC. THE ASSESSING OFFICER VIDE POINT NO.19 ASKED THE ASSESSEE TO FURNISH THE DETAILS OF OTHER INCOME, MISCELLANEOUS INCOME AND MISCELLANEOUS RECEIPTS, THEREFORE IT IS CLEAR THAT THE 11 ASSESSING OFFICER DURING THE COURSE OF ORIGINAL ASS ESSMENT PROCEEDINGS HAD ASKED ALL THE DETAILS ABOUT THE ASSETS, FDRS I. E. DONATIONS ON THE BASIS OF WHICH THE REOPENING OF ASSESSMENT WAS INIT IATED. IT IS ALSO NOTICED FROM THE ASSESSMENT ORDER DATED 01/12/2008 THAT THE ASSESSEE FURNISHED ALL THE DETAILS/DOCUMENTS BILLS & VOUCHER S ALONG WITH BOOKS OF ACCOUNTS, WHICH WERE FOUND TO BE CORRECT. THEREFOR E, IT CAN BE SAID THAT THE ASSESSING OFFICER NOT ONLY ASKED THE ASSESSEE T O FURNISH THE REQUISITE DETAILS, BUT ALSO APPLIED HIS MIND WHILE FRAMING TH E ASSESSMENT UNDER SECTION 143(3) OF THE ACT. THEREFORE, REOPENING UND ER SECTION 148 OF THE ACT ON THE BASIS OF THE SAME ISSUES, WHICH WERE EXA MINED WHILE FRAMING ORIGINAL ASSESSMENT WAS DEFINITELY A CHANGE OF OPIN ION AND THE REOPENING ON THE BASIS OF CHANGE OF OPINION IS NOT PERMISSIBL E IN LAW. IN THIS REGARD, THE HON'BLE DELHI HIGH COURT (FULL BENCH) IN THE CA SE OF CIT VS. KELVINATOR OF INDIA LTD.(2002) 256 ITR 1 HAS HELD AS UNDER:- IT IS A WELL-SETTLED PRINCIPLE OF INTERPRETATION O F STATUTES THAT THE ENTIRE STATUTE SHOULD BE READ AS A WHOLE AND THE SA ME HAS TO BE CONSIDERED THEREAFTER CHAPTER BY CHAPTER AND THEN SECTION BY SECTION AND ULTIMATELY WORD BY WORD. IT IS NOT IN DISPUTE THAT THE ASSESSING OFFICER DOES NOT HAVE ANY JURISDICTION TO REVIEW HIS OWN ORDER. HIS JURISDIC TION IS CONFINED ONLY TO RECTIFICATION OF MISTAKES AS CONTAINED IN SECTIO N154 OF THE INCOME- TAX ACT, 1961. THE POWER OF RECTIFICATION OF MISTA KES CONFERRED UPON THE INCOME-TAX OFFICER IS CIRCUMSCRIBED BY THE PROV ISIONS OF SECTION 154 OF THE ACT. THE SAID POWER CAN BE EXERCISED WH EN THE MISTAKE IS APPARENT. EVEN A MISTAKE CANNOT BE RECTIFIED WHERE IT MAY BE A MERE 12 POSSIBLE VIEW OR WHERE THE ISSUES ARE DEBATABLE. T HE INCOME-TAX APPELLATE TRIBUNAL HAS LIMITED JURISDICTION UNDER S ECTION 254(2) OF THE ACT. IT IS A WELL SETTLED PRINCIPLE OF LAWS THAT W HAT CANNOT BE DONE DIRECTLY CAN NOT BE DONE INDIRECTLY. IF THE INCOME -TAX OFFICER DOES NOT POSSESS THE POWER OF REVIEW, HE CANNOT BE PERMITTED TO ACHIEVE THE SAID OBJECT BY TAKING RECOURSE TO INITIATING A PROC EEDING OF REASSESSMENT. IN A CASE OF THIS NATURE THE REVENUE IS NOT WITHOUT REMEDY. SECTION 263 OF THE ACT EMPOWERS THE COMMIS SIONER TO REVIEW AN ORDER WHICH IS PREJUDICIAL TO THE REVENUE . IT HAS FURTHER BEEN HELD AS UNDER:- THE SCOPE AND EFFECT OF SECTION 147 AS SUBSTITUTED WITH EFFECT FROM APRIL 1, 1989, BY THE DIRECT TAX LAWS (AMENDMENT) A CT, 1987, AND SUBSEQUENTLY AMENDED BY THE DIRECT TAX LAWS (AMENDM ENT) ACT, 1989, WITH EFFECT FROM APRIL 1, 1989, AS ALSO OF SE CTIONS 148 TO 152 HAVE BEEN ELABORATED IN CIRCULAR NO. 549, DATED OCT OBER 31, 1989. A PERUSAL OF CLAUSE 7.2 OF THE SAID CIRCULAR MAKES IT CLEAR THAT THE AMENDMENTS HAD BEEN CARRIED OUT ONLY WITH A VIEW TO ALLAY FEARS THAT THE OMISSION OF THE EXPRESSION REASON TO BELIEVE FROM SECTION 147 WOULD GIVE ARBITRARY POWERS TO THE ASSESSING OFFICE R TO REOPEN PAST ASSESSMENTS ON A MERE CHANGE OF OPINION. IT IS, TH EREFORE, EVIDENT THAT EVEN ACCORDING TO THE CENTRAL BOARD OF DIRECT TAXES A MERE CHANGE OF OPINION CANNOT FORM THE BASIS FOR REOPENI NG A COMPLETED ASSESSMENT. A STATUTE CONFERRING AN ARBITRARY POWER MAY BE HELD T O BE ULTRA VIRES ARTICLE 14 OF THE CONSTITUTION OF INDIA . IF TWO INTERPRETATIONS ARE POSSIBLE, THE INTERPRETATION WH ICH UPHOLDS CONSTITUTIONALITY SHOULD BE FAVOURED. IN THE EVENT IT IS HELD THAT BY REASON OF SECTION 147 THE INCOME-TAX OFFICER MAY EX ERCISE HIS JURISDICTION FOR INITIATING A PROCEEDING FOR REASSE SSMENT ONLY UPON A MERE CHANGE OF OPINION, THE SAME MAY BE HELD TO BE UNCONSTITUTIONAL. AN ORDER OF ASSESSMENT CAN BE PASSED EITHER IN TE RMS OF SUB- SECTION (1) OF SECTION 143 OR SUB-SECTION (3) OF SE CTION 143. WHEN A REGULAR ORDER OF ASSESSMENT IS PASSED IN TERMS OF T HE SUB-SECTION (3) OF SECTION 143 A PRESUMPTION CAN BE RAISED THAT S UCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND. IT IS WELL KNO WN THAT A 13 PRESUMPTION CAN ALSO BE RAISED TO THE EFFECT THAT I N TERMS OF CLAUSE (E) OF SECTION 114 OF THE INDIAN EVIDENCE ACT, 1872, JU DICIAL AND OFFICIAL ACTS HAVE BEEN REGULARLY PERFORMED. IF IT BE HELD AN ORDER WHICH HAS BEEN PASSED PURPORTEDLY WITHOUT APPLICATION OF MIND WOULD ITSELF CONFER JURISDICTION UPON THE ASSESSING OFFICER TO R EOPEN THE PROCEEDING WITHOUT ANYTHING FURTHER, THE SAME WOULD AMOUNT TO GIVING A PREMIUM TO AN AUTHORITY EXERCISING QUASI J UDICIAL FUNCTION TO TAKE BENEFIT OF ITS OWN WRONG. HENCE, IT IS CLEAR THAT SECTION 147 OF THE ACT DOES NOT POSTULATE CONFERMENT OF POWER UPON THE ASSESSING OFFICER TO INITIATE REASSESSMENT PROCEEDINGS UPON A MERE CHANGE OF OPINION. 12. THE RATIO LAID DOWN IN THE AFORESAID REFERRED TO CA SE IS SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT CASE BECAUSE THE ASSESSING OFFICER FRAMED THE REGULAR ASSESSMENT UNDER SECTION 143(3) OF THE ACT ON APPLICATION OF MIND AND WHEN THE ORDER HAD BEEN PAS SED PURPORTEDLY WITHOUT APPLICATION OF MIND WOULD ITSELF CONFER JUR ISDICTION UPON THE ASSESSING OFFICER TO REOPEN THE PROCEEDING. HOWEVER , SECTION 147 OF THE ACT DOES NOT POSTULATE CONFERMENT OF POWER UPON THE ASSESSING OFFICER TO INITIATE REASSESSMENT PROCEEDINGS UPON A MERE CHANG E OF OPINION. SINCE, THE ASSESSING OFFICER, IN THE PRESENT CASE, FRAMED THE ORIGINAL ASSESSMENT AFTER PROPER APPLICATION OF MIND AND ASKED VARIOUS DETAILS, WHICH WERE EXAMINED BY HIM, THEREFORE, REOPENING ON THE BASIS OF SAME ISSUES WHICH HAD ALREADY BEEN EXAMINED BY THE ASSESSING OFFICER DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS WAS NOT VALID. IN THAT VIEW OF THE MATTER, WE QUASH THE REASSESSMENT FRAMED BY THE ASS ESSING OFFICER. 14 13 . IN THE PRESENT CASE WHILE DECIDING THE ISSUE IN T HE CROSS-OBJECTION ON VALIDITY OF REOPENING, THE REASSESSMENT ORDER HA S BEEN QUASHED. THEREFORE, NO FINDING IS REQUIRED TO BE GIVEN ON TH E ISSUES AGITATED BY THE ASSESSEE AND THE DEPARTMENT ON MERIT. ACCORDINGLY, APPEALS OF THE DEPARTMENT IN I.T.A.NO. 360/JODH/2013 FOR THE A.Y. 2006-07 IS DISMISSED. 14. IN ALL OTHER APPEALS OF THE DEPARTMENT AND THE CROS S OBJECTIONS OF THE ASSESSEE FOR THE A.YS. 2007-08 & 2008-09, THE I SSUES INVOLVED ARE SIMILAR HAVING IDENTICAL FACTS, THEREFORE, OUR FIND INGS GIVEN IN FORMER PART OF THIS ORDER FOR THE A.Y. 2006-07 SHALL APPLY MUTA TIS-MUTANDIS FOR THE A.YS. 2007-08 & 2008-09. 15. IN THE RESULT, CROSS OBJECTIONS OF THE ASSESSEE ARE ALLOWED AND THE APPEALS OF THE DEPARTMENT ARE DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 21 ST NOVEMBER, 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21 ST NOVEMBER , 2013. VR/- COPY TO: 15 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.