TIVOLI INVESTMENT & TRADING CO P.LTD, MUMBAI V. DCIT 7(3), MUMBAI

CO 32/MUM/2014

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9880 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 25-04-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 06-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Question of law; Tangible material; Difference of opinion; Right to appeal; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUM BAI , , BEFORE SHRI SANJAY ARORA, AM AND SHRI AMIT SHUKLA, JM ./I.T.A. NO. 7713/MUM/2012 ( / ASSESSMENT YEAR: 2006-07) DY. CIT-7(3), ROOM NO.615, 6 TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 / VS. TIVOLI INVESTMENT & TRADING CO. PVT. LTD. 101, CHAMPAKLAL INDUSTRIAL ESTATE, SION, MUMBAI-400 022 ./ ./PAN/GIR NO. AAACT 1591 N ( ! / REVENUE ) : ( '# $% / ASSESSEE ) & CO NO. 32/MUM/2014 (ARISING OUT OF ITA NO.7713/MUM/2012) ( / ASSESSMENT YEAR: 2006-07) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. 101, CHAMPAKLAL INDUSTRIAL ESTATE, SION, MUMBAI-400 022 / VS. DY. CIT-7(3), ROOM NO.615, 6 TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400 020 ./ ./PAN/GIR NO. AAACT 1591 N ( '# $% / ASSESSEE ) : ( ! / REVENUE ) ! & ' / REVENUE BY : SHRI RAVI PRAKASH '# $% & ' / ASSESSEE BY : SHRI NITESH JOSHI '! & ( / DATE OF HEARING : 16.05.2014 )*+ & ( / DATE OF PRONOUNCEMENT : 08.08.2014 2 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE REVENUE AND THE CROSS OBJE CTION (CO) BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF I NCOME TAX (APPEALS)-13, MUMBAI (CIT(A) FOR SHORT) DATED 10.10.2012, PARTLY ALLOW ING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) R/W S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2006-07. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE ES, A COMPANY ENGAGED IN LETTING HOUSE PROPERTY AND SHARE TRADING, ASSESSMENT FOR TH E YEAR WAS FRAMED U/S. 143(3) OF THE ACT ON 29.12.2008 AT AN INCOME OF RS.194.91 LACS BY , INTER ALIA , EFFECTING DISALLOWANCE U/S.14A AND ASSESSING THE HOUSE PROPERTY INCOME AT RS.42,37,301/- (AS AGAINST THE RETURNED INCOME OF RS.39,06,101/- UNDER THE SAID HE AD). SUBSEQUENTLY, NOTICE U/S.148 WAS ISSUED ON 23.02.2011 , SEEKING TO REOPEN THE ASSESSMENT ON TWO GROUNDS ( COPY OF REASONS RECORDED AT PB PGS. 22-23): A) THE ANNUAL VALUE OF THE SAHAKAR BHAVAN PROPERTY, ONE OF THE SIX PROPERTIES LET DURING THE RELEVANT YEAR, HAD BEEN ASSESSED AT RS.9 ,43,200/- BY ADOPTING A RENTAL RATE OF RS.24/- PER SQ. FT.. THE SAID PROPERTY, LETTING OF WHICH W AS ACCOMPANIED BY AN INTEREST FREE DEPOSIT OF RS.3.31 CRORES , HAD BEEN ASSESSED AT A RENTAL VALUE OF RS.37,25,0 00/- U/S.143(3) FOR A.Y. 2004-05. THE ANNUAL VALUE WOULD HAVE ONLY WITNESSED AN INCREASE DURING THE TWO YEAR PERIOD SINCE. THERE WAS THUS, I .E., EVEN ADOPTING THE VALUE AS ASSESSED FOR A.Y. 2004-05, AN ESCAPEMENT OF INCOME AT LEAST TO THE EXTENT CORRESPONDING TO THE DIFFERENCE; B) MAINTENANCE CHARGES PAID TO THE HOUSING SOCIETY HAD BEEN CLAIMED AT RS.3,75,755, WHICH, THOUGH INADMISSIBLE, HAD BEEN ALLOWED IN ASS ESSMENT, SO THAT THERE WAS AN ESCAPEMENT OF INCOME TO THAT EXTENT. ASSESSMENT WAS ACCORDINGLY MADE BY ASSESSING THE IN COME UNDER THE HEAD INCOME FROM HOUSE PROPERTY BY MAKING THE AFORE-STATED ADJUSTME NTS, ALLOWING DEDUCTION U/S. 24(A) WHILE COMPUTING THE REVISED ANNUAL LETTING VALUE (A LV). IN APPEAL, THE ASSESSEE FOUND FAVOUR WITH THE LD. C IT(A) ON THE GROUND THAT THE REOPENING, EVEN WITHIN FOUR YEARS, WAS HIT BY CHAN GE OF OPINION. RELYING ON THE 3 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. DECISION IN THE CASE OF IDEA CELLULAR LTD. VS. DY. CIT [2008] 301 ITR 407 (BOM), HE ARGUED THAT ONCE A MATERIAL WITH REGARD TO A PARTIC ULAR ISSUE WAS BEFORE THE ASSESSING OFFICER (A.O.), IT COULD NOT BE SAID THAT HE HAD NO T APPLIED HIS MIND THERETO, EVEN IF HE CHOOSES NOT TO DEAL WITH THE SAME. THE A.O. IN HIS VIEW HAD ALREADY CONSIDERED THE FACTS, AND THUS APPLIED HIS MIND, MAKING AN ADDITION ON TH E ISSUE UNDER REFERENCE. TAKING A DIFFERENT DECISION ON THE SAME SET OF FACTS WOULD A MOUNT TO REVIEW , WHICH IS NOT PERMISSIBLE, AND WOULD OPERATE EVEN WHERE THE ASSES SMENT IS SOUGHT TO BE REOPENED WITHIN FOUR YEARS, WHICH IS A SETTLED POSITION IN L AW, RELYING ON THE DECISION IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. [2002] 256 ITR 1 (DEL) (FB), SINCE AFFIRMED BY THE APEX COURT IN CIT VS. KELVINATOR OF INDIA LTD. [2010] 320 ITR 561 (SC). THE REOPENING WAS ACCORDINGLY HELD AS BAD IN LAW, AND THE REASSESSMEN T QUASHED. AGGRIEVED, THE REVENUE IS IN APPEAL. THE ASSESSEE HAS ALSO PREFERRED A CO, WH ICH IS LARGELY SUPPORTIVE, BESIDES AGITATING THE ISSUE/S ON MERITS. REVENUES APPEAL (IN ITA NO. 7713/MUM/2012) 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE REASSESSMENT PROCEEDINGS HAVING BEEN INITIATED ON TWO GROUNDS (L ISTED AT PARA 2(A) & (B) (SUPRA)), WE SHALL PROCEED GROUND-WISE. THIS IS FOR THE SIMPLE R EASON THAT THE PROCEEDINGS SHALL HOLD EVEN IF SUSTAINED ON ANY ONE OF THE REASONS STATED IN THE STATEMENT OF THE REASONS RECORDED, I.E., IS HELD, IN THE FACTS AND CIRCUMSTA NCES OF THE CASE AND IN LAW, AS CONSTITUTING A VALID GROUND FOR REOPENING THE ASSES SMENT. THIS, INCIDENTALLY, WE OBSERVE TO BE THE PRINCIPAL FLAW IN THE IMPUGNED ORDER; THE ENTIRE DISCUSSION, RECORDING HIS DELIBERATIONS AND FINDINGS BY THE LD. CIT(A), BEING OSTENSIBLY WITH REFERENCE TO THE FIRST ISSUE, I.E., THE UNDER ASSESSMENT OF INCOME FROM TH E SAHAKAR BHAVAN PROPERTY (REFER PARA 2.3/PB PGS. 6-10 OF THE IMPUGNED ORDER). GROUND # 1 (INCOME FROM HOUSE PROPERTY - SAHAKAR BH AVAN PROPERTY): 3.1 THE ASSESSEES CASE IS THAT THE MATTER WAS DULY ENQUIRED INTO BY THE A.O. WHILE FRAMING THE ORIGINAL ASSESSMENT; IN FACT, EVEN SUBJ ECT TO ADDITION UPON FINDING THE 4 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. RETURNED INCOME, BASED ON AGREEMENT, TO BE LOWER TH AN THE RENT BEING FETCHED BY OTHER PROPERTIES IN THE SAME BUILDING WITH THE SAME AREA BY OTHER, INDEPENDENT PERSONS, AND TOWARD WHICH REFERENCE WAS MADE DURING HEARING TO T HE ASSESSEES LETTERS DATED 10.12.2008 (PB PGS.11-12) AND 24.12.2008 (PB PGS. 1 3-17). SO MUCH SO THAT EVEN THE ASSESSMENT ORDER U/S. 143(3) FOR A.Y. 2004-05 WAS F URNISHED DURING THE SAID ASSESSMENT PROCEEDINGS (PB PGS.4-9). THE A.O. HAD, THUS, FORMED A DEFINITE VIEW UPON CON SIDERATION OF ALL THE RELEVANT FACTS . THE SUBSEQUENT INVOCATION OF THE ASSESSMENT FOR A .Y. 2004-05, CONFIRMED IN FIRST APPEAL (PB PGS. 42-45), WOULD BE , UNDER THE CIRCUMSTANCES, ONLY A CHANGE OF OPINION, PRECLUDING REASSESSMENT. RELIANC E WAS PLACED ON ARONI COMMERCIALS LTD. VS. DY. CIT [2014] 362 ITR 403 (BOM) AND CARTINI INDIA LTD. VS. ADDL. CIT [2009] 314 ITR 275 (BOM). THE REVENUES CASE, ON THE OTHER HAND, IS THAT THER E HAS BEEN WITHOUT DOUBT NO CONSIDERATION OF THE ASSESSMENT OF THE INCOME FROM THE RELEVANT PROPERTY FOR A.Y. 2004- 05, WHICH IS RELEVANT AND MATERIAL. THERE WAS, THUS , SOUND REASON TO BELIEVE ESCAPEMENT OF INCOME, BASED ON COGENT MATERIAL AND, ACCORDINGL Y, NO SCOPE FOR APPLYING THE CONCEPT OF CHANGE OF OPINION. RELIANCE STANDS PLACED ON A HOST OF DECISIONS, AS BELOW, BESIDES ON THE DECISION IN THE CASE OF CIT VS. USHA INTERNATIONAL LTD . [2012] 348 ITR 485 (DEL)(FB): INDIAN HUME PIPE CO. LTD. VS. ASST. CIT [2012] 348 ITR 439 (BOM); DALMIA (P.) LTD. VS. CIT [2012] 348 ITR 469 (DEL); SRI SAKHI TEXTILES LTD. VS. JT. CIT [2012] 340 ITR 144 (MAD); INNOVATIVE FOODS LTD. VS. UNION OF INDIA [2013] 356 ITR 389 (KER); AND NANCY KRAFTS P. LTD. VS. ASST. CIT [2011] 10 ITR (TRIB) 193 (DEL). 3.2 WE OBSERVE NO DISPUTE OR QUARREL ON PRINCIPLE. A CHANGE OF OPINION WOULD PRECLUDE REASSESSMENT, WHETHER WITHIN OR OUTSIDE TH E FOUR YEAR TIME LIMIT (FROM THE END OF THE RELEVANT ASSESSMENT YEAR). THIS, AS EXPLAINED B Y THE APEX COURT IN KELVINATOR OF INDIA LTD. (SUPRA), IS THE IN-BUILT TEST TO CHECK AGAINST ARB ITRARY USE OF THE POWER OF ASSESSMENT, WHICH INCLUDES REASSESSMENT. THE SAME STEMS FROM TH E PRINCIPLE THAT THE ASSESSING 5 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. AUTHORITY HAS NO POWER TO REVIEW, WHICH IS CONCEPTU ALLY AT VARIANCE WITH THE POWER TO REASSESS. THE MOOT QUESTION, HOWEVER, WOULD BE AS T O WHAT CONSTITUTES A REVIEW OR CHANGE OF OPINION. IN OUR VIEW, AND WHICH CORRESPONDS WITH THAT OF THE FIRST APPELLATE AUTHORITY ITSELF, IT WOULD BE REAPPRAISAL OF THE FA CTS OF THE CASE . WHEN, HOWEVER, A NEW FACT COMES INTO PICTURE, AND THERE IS A CHANGE IN T HE FACTUAL MATRIX OF THE CASE CONSEQUENT THERETO, IT CANNOT BE SAID TO BE A REVIEW, WHICH PR EDICATES EXAMINING THE SAME FACTUAL MATRIX, WHICH MAY LEAD TO A VIEW EITHER IN AGREEMEN T OR IN MODIFICATION OF THAT FORMED EARLIER. IT IS WELL SETTLED THAT EVEN ONE FACT CAN CHANGE THE WHOLE COMPLEXION AND LEAD TO A CHANGE OF OPINION FORMED IN THE ABSENCE OF SUCH FAC T OR ITS CONSIDERATION (REFER: PADMASUNDARA RAO (DECD.) V. STATE OF TAMIL NADU [2002] 255 ITR 147 (SC)). THIS WOULD NOT AMOUNT TO A MERE CHANGE OF OPINION, BUT A FRESH OPINION IN LIGHT AND CONSIDERATION OF THE NEW, EMERGING POSITION. THE SA ME WOULD, WHERE THE SAID OPINION IS AS TO ESCAPEMENT OF INCOME, QUALIFY TO BE A REASON TO BELIEVE, WHICH IS ITSELF A LEGISLATIVE CHECK AGAINST ANY ARBITRARINESS IN REOP ENING CONCLUDED ASSESSMENTS. THE PROPOSITION IS UNEXCEPTIONAL, IF NOT AXIOMATIC, REC OMMENDING ITSELF TO READY ACCEPTANCE. IF NOT SO UNDERSTOOD, ANY CONSIDERATION OF ANY MATT ER, IRRESPECTIVE OF FACTS, WOULD DEGENERATE INTO OR BE LIABLE TO BE DESCRIBED AS A REVIEW, DEFEATING THE VERY CONCEPT AND NOTION OF REASON TO BELIEVE CONTROLLING AND PLACI NG A LIMITATION ON THE POWER OF ASSESSMENT. THE SAME, BESIDES BEING INCONSISTENT WI TH THE MEANING OF THE WORD REVIEW, BOTH AS UNDERSTOOD IN COMMON PARLANCE AS WELL AS JU DICIALLY, WOULD DISTORT THE MEANING AND SENSE OF THE WORD. THE DECISION OF THE LD. CIT( A) IS ALSO BASED ON THE SAID UNDERSTANDING IN-AS-MUCH AS IT IS BASED ON THERE BE ING AN EXAMINATION AND CONSIDERATION OF ALL THE RELEVANT MATERIAL BY THE A.O. IN THE ORI GINAL ASSESSMENT PROCEEDINGS, INCLUDING THE ASSESSMENT FOR A.Y. 2004-05, SO THAT THERE IS C LARITY AND NO DISPUTE ON THIS ASPECT OF THE MATTER, I.E., THAT ONLY CONSIDERATION OF THE SA ME MATERIAL WOULD AMOUNT TO A REVIEW. WHY, FOR EXAMPLE, SPEAKING AGAIN IN CONTEXT OF THE PRESENT CASE, THE A.O. MAY RECEIVE INFORMATION, POST ASSESSMENT, OF SIMILAR PROPERTY/S FETCHING A MUCH HIGHER RENT FOR THE RELEVANT YEAR THAN THAT ASSESSED IN THE ASSESSEES CASE. THE SAME WOULD DEFINITELY LEAD TO A BONA FIDE REASON AS TO ESCAPEMENT OF INCOME, LEADING TO INIT IATION OF REASSESSMENT 6 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. PROCEEDINGS. THE SAID EXAMPLE IS PARA MATERIA WITH WHAT ACTUALLY OBTAINS IN THE PRESENT CASE. THE POSITION IN FACT STANDS JUDICIALLY SETTLE D BY THE DECISION BY THE APEX COURT IN ASST. CIT VS. RAJESH JHAVERI STOCK BROKERS PVT. LTD . [2007] 291 ITR 519 (SC), WHEREIN THE REASON TO BELIEVE STANDS STATED AS THE SOLE A RBITER AND DECIDING FACTOR WHERE AN ASSESSMENT, WHETHER U/S.143(1) WHICH IS NOT ASSES SMENT AT ALL, SO THAT THERE IS NO QUESTION OF FORMING AN OPINION, OR U/S.143(3), IS S OUGHT TO BE REOPENED WITHIN FOUR YEARS (FROM THE END OF THE RELEVANT ASSESSMENT YEAR ). THE SAME STANDS CONFIRMED BY THE APEX COURT IN KELVINATOR OF INDIA LTD. (SUPRA); IT ADDING FORMATION OF OPINION BASED ON MATERIALS. THOUGH THE TERM RE-VIEW, A COMPOSITE O F THE WORDS RE AND VIEW, ITSELF SIGNIFIES ITS MEANING AS A REEXAMINATION OF THE SUB JECT MATTER OF EXAMINATION, THE MATTER IS NOT RES INTEGRA , HAVING BEEN CONSIDERED BY THE APEX COURT PER ITS CELEBRATED DECISION IN KALYANJI MAVJI & CO. VS. CIT [1976] 102 ITR 287 (SC). THE HONBLE COURT, AFTER A N EXTENSIVE REVIEW OF THE PRECEDENTS, SET OUT THE FOL LOWING TESTS AND PRINCIPLES TO DETERMINE THE APPLICABILITY OF SECTION 34(1)(B) (OF THE 1922 ACT), WHICH CORRESPONDS TO THE MAIN PROVISION OF SECTION 147: SECTION 34(1)(B) WOULD APPLY TO THE FOLLOWING CATE GORIES OF CASES: (1) WHERE THE INFORMATION IS AS TO THE TRUE AND COR RECT STATE OF THE LAW DERIVED FROM RELEVANT JUDICIAL DECISIONS; (2) WHERE IN THE ORIGINAL ASSESSMENT THE INCOME LIA BLE TO TAX HAS ESCAPED ASSESSMENT DUE TO OVERSIGHT, INADVERTENCE OR A MIST AKE COMMITTED BY THE INCOME-TAX OFFICER; (3) WHERE THE INFORMATION IS DERIVED FROM AN EXTERN AL SOURCE OF ANY KIND: SUCH EXTERNAL SOURCE WOULD INCLUDE DISCOVERY OF NEW AND IMPORTANT MATTERS OR KNOWLEDGE OF FRESH FACTS WHICH WERE NOT PRESENT AT THE TIME OF ORIGINAL ASSESSMENT; (4) WHERE THE INFORMATION MAY BE OBTAINED EVEN FROM THE RECORD OF THE ORIGINAL ASSESSMENT FROM AN INVESTIGATION OF THE MA TERIALS ON THE RECORD, OR THE FACTS DISCLOSED THEREBY OR FROM OTHE R ENQUIRY OR RESEARCH INTO FACTS OR LAW. WHERE, HOWEVER, THE INCOME-TAX OFFICER GETS NO SUBS EQUENT INFORMATION, BUT MERELY PROCEEDS TO REOPEN THE ORIG INAL ASSESSMENT WITHOUT ANY FRESH FACTS OR MATERIALS OR WITHOUT ANY ENQUIRY INTO THE MATERIALS WHICH FORM PART OF THE ORIGINAL ASSESSMENT, SECTION 34(1) (B) WOULD HAVE NO APPLICATION. 7 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. THE HONBLE COURT CLARIFIED THAT THE INFORMATION OR MATERIAL MAY BE EXTERNAL TO OR A PART OF THE RECORD. IT WAS FURTHER EXPLAINED THAT THE INFOR MATION THOUGH MUST COME IN THE POSSESSION OF THE A.O. AFTER THE ASSESSMENT, BUT EV EN IF IT IS SUCH THAT IT COULD HAVE BEEN OBTAINED DURING THE ASSESSMENT ITSELF, I.E., FROM AN INVESTIGATION OF THE MATERIALS ON RECORD, OR THE FACTS DISCLOSED THEREBY OR FROM OTHE R ENQUIRY OR RESEARCH INTO FACTS OR LAW, BUT WAS NOT IN FACT OBTAINED, THE JURISDICTION OF T HE ASSESSING AUTHORITY IS NOT AFFECTED . TRUE, ONE COULD ARGUE THAT THE WORD INFORMATION I S ABSENT IN THE EXTANT LAW, BUT THEN THE LAW HAS BEEN THUS ONLY FURTHER RELAXED AND, IN ANY CASE, THE INTERPRETATION ACCORDED BY THE HONBLE COURT, WHICH ITSELF REPRESENTS A CONTINUUM, SIGNIFIES THE PURPOSIVE MANNER IN WHICH IT READS THE PROVISION. (ALSO REFER PARA 6(A) ) 3.3 THE QUESTION BEFORE US, THEREFORE, IS PRIMARILY FACTUAL; ITS DETERMINANTS BEING AS: A) WHETHER THE NEW OR FRESH FACT WAS CONSIDERED EA RLIER OR NOT, I.E., AT THE TIME OF ORIGINAL ASSESSMENT, SO THAT WHERE IT WAS, IT IS TH E CASE OF A REVIEW, ELSE NOT; B) WHETHER THE FRESH FACT LEADS TO REASON TO BELIEVE ESCAPEMENT OF INCOME; AND C) WHETHER THE SAID REASON/S STANDS DULY RECORDED, AND THE DUE PROCESS OBSERVED PRIOR TO THE ISSUE OF THE REASSESSMENT NOTICE. WE SHALL CONSIDER EACH OF THE AFORE-STATED ELEMENTS . WE FIND NO CASE TO HOLD THAT THERE HAS BEEN A CONSIDERATION OF THE FACT OF THE ASSESSM ENT OF THE RENTAL VALUE OF THE VERY SAME PROPERTY FOR THE YEAR PRECEDING THE IMMEDIATELY PRE CEDING YEAR AT RS.105/- PER SQ. FT., I.E., AS AGAINST RS.16/- PER SQ. FT. RETURNED BY THE ASSE SSEE FOR THE CURRENT YEAR. THERE IS NOTHING TO SHOW OF THE SAID FACT HAVING BEEN CONSIDERED. THE ASSESSMENT ORDER FOR A.Y. 2004-05 IS, THUS, THE RELEVANT TANGIBLE MATERIAL . THERE IS NO REFERENCE TO EITHER THE ASSESSMENT FO R A.Y. 2004-05, OR THE MATERIAL ON WHICH THE SAME WAS BASED, OR OTHERWISE OF THE ASSESSEES CASE/EXPLANATION QUA THE SAME, ON RECORD. THIS, DESPITE THE FACT THAT TH E ASSESSEE NOT ONLY RAISED PRELIMINARY OBJECTIONS TO ITS REASSESSMENT (PB PGS.24-25), BUT ALSO FURNISHED SUBMISSIONS IN THE MATTER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, TO WHICH REFERENCE WAS MADE BY THE LD. AUTHORIZED R EPRESENTATIVE (AR) DURING HEARING. THE FINDING BY THE LD. CIT(A), THOUGH NOT SPECIFICA LLY WITH REFERENCE TO THE ASSESSMENT 8 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. ORDER FOR A.Y. 2004-05 (OR THE MATERIAL ON WHICH TH E SAID ASSESSMENT IS BASED), IS INFERABLE AND IMPLICIT IN HIS FINDING OF ALL THE RE LEVANT MATERIAL HAVING BEEN CONSIDERED BY THE A.O. AT THE TIME OF THE ORIGINAL ASSESSMENT, WH ICH WE FIND TO BE DE HORS ANY MATERIAL ON RECORD. IN FACT, IT WOULD BE BEYOND ALL REASON T O SUGGEST OR CONTEND OTHERWISE, I.E., THAT THE A.O. ACCEPTED THE RENTAL VALUE AT RS.24/- PER SQ. FT. DESPITE DEFINITE MATERIAL EVIDENCING IT AT RS.105/- PER SQ. FT., AND THAT TOO WITHOUT ANY EXPLANATION OR BASIS, INASMUCH AS IT WOULD BE BEYOND ALL BOUNDS OF REASON ABLENESS AND RATIONALITY OR PROBABILITIES OF HUMAN CONDUCT. IN FACT, SUCH AN AC CEPTANCE ON THE A.O.S PART WOULD BE GROTESQUE, IF NOT MALA FIDE , MAKING IT INCREDULOUS, ALMOST BIZARRE, TO STATE S O, DISQUALIFYING THE SAID OPINION AS AN OPINION IN THE EYES OF LAW, EVEN AS, AS AFORE-STATED, THERE IS NO WHISPER OR EVEN AN IOTA OF EVIDENCE TO SUGGEST A CONSIDERATION OF THE SAID MATERIAL BY HIM IN FRAMING THE ORIGINAL ASSESSMENT. THE IMPUGNED ORDER, IMPUTING SO, INASMUCH AS THE LD. CIT(A) DOES NOT STATE SO EXPLIC ITLY, IS THUS ITSELF WITHOUT ANY APPLICATION OF MIND, BEING SUB SILENTIO IN THE MATTER, SO THAT IT DOES NOT INFORM US AS T O THE BASIS FOR THE LD. CIT(A) IN SO STATING. RATHER, CONSIDERING THAT THE SAID MATERIAL ITSELF FORMS THE BASIS OF THE GROUND FOR REOPENING THE ASS ESSMENT, ONE WOULD HAVE EXPECTED THE FIRST APPELLATE AUTHORITY TO HAVE BEEN MORE CIRCUMS PECT, I.E., THAN ONE NORMALLY IS OR IS WONT TO, AND ISSUE HIS FINDING/S IN THE MATTER UPON DUE CONSIDERATION OF THE MATERIAL ON RECORD, WHILE WE FIND HE DOES SO MOST CAUSALLY, TAK ING IT, I.E., THE CONSIDERATION OF THE SAID MATERIAL BY THE A.O., AS A GIVEN. IT DOES NOT PER HAPS EVEN OCCUR TO HIM THAT IN DOING SO HE IS IMPLICITLY HOLDING THE A.O. GUILTY OF CAPRICI OUSNESS AND A CONDUCT CONTUMACIOUS AND MALICIOUS, I.E., BESIDES DERELICTION OF DUTY. T HE MOST WE ARE ABLE TO CONCEDE, I.E., ON THE BASIS OF THE MATERIAL ON RECORD, IS THAT THE A. O. IN NOT CONSIDERING OR FAILING TO CONSIDER THE MATERIALS BEFORE HIM IN THE FORM OF AS SESSMENT ORDER FOR A.Y. 2004-05 ASSESSING THE RENTAL VALUE OF THE VERY SAME PROPERT Y AT RS.105/- PER SQ. FT., HAD COMMITTED A LAPSE. NOTHING MORE. AS WE SEE IT, OR AS FAR AS W E MAY ABLE TO SEE, IT IS A CLEAR CASE OF OMISSION, AND WHICH, GIVEN THE PERSUASIVE NATURE OF THE MATERIALS, WOULD QUALIFY TO BE CONSTRUED AS A MISTAKE. DOES THE LAW NOT ENVISAGE THE ASSESSING AUTHORITY COMMITTING A LAPSE, WHICH IS AN INCIDENT AND CONCOMITANT OF HUMA N ENDEAVOR? DOES THE LAW ESTOPP THE 9 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. A.O. FROM CORRECTING A MISTAKE OR LAPSE OR OMISSION ? DOES THE LAW NOT PROVIDE A COURSE CORRECTION IN SUCH A CASE? CAN AN OMISSION BE CONSI DERED AS FATAL, AND THE ASSESSEE ALLOWED ADVANTAGE THEREOF? THE ANSWERS TO THIS AND SUCH LIKE QUESTIONS THAT ARISE ARE EVIDENT FROM A MERE PERUSAL OF THE ACT AND ITS SCHE ME, CONTAINING SEVERAL PROVISIONS IN THIS REGARD, VIZ. SECTIONS 147, 154, 254(2), 263, 2 64, ETC. THE APEX COURT IN HONDA SIEL POWER PRODUCTS LTD. VS. CIT [2007] 295 ITR 466 (SC) CLARIFIED THAT THE POWER TO RECTIFY IS INHERENT TO THE POWER OF ADJUDICATION. THE APEX COURT IN KALYANJI MAVJI AND CO. (SUPRA), LISTED OVERSIGHT, INADVERTENCE OR MISTAKE COMMITTED BY THE A.O. AS AMONG THE TESTS AND PRINCIPLES THAT WOULD MAKE SECTION 34(1)( B) (OF THE 1922 ACT), I.E., WHERE THE REOPENING OF ASSESSMENT IS IN THE ABSENCE OF ANY OM ISSION OR FAILURE ON THE PART OF THE ASSESSEE, CORRESPONDING TO THE MAIN PROVISION OF SE CTION 147, APPLICABLE (REFER PGS. 296 AND 297 OF THE JUDGMENT). THE STRAND CONTINUES TO D ATE; THE LAW CLEARLY PROVIDING FOR TWO CLASSES OR CATEGORIES (OF SITUATIONS), ONE WHERE TH E ESCAPEMENT OF INCOME IS ON ACCOUNT OF AN OMISSION OR FAILURE ON THE PART OF THE ASSESSEE, TO INTER ALIA DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT FOR THE REL EVANT YEAR, FOR WHICH A HIGHER TIME PERIOD OF SIX YEARS (AS PER THE EXTANT LAW) IS PROV IDED AND, TWO, FOR THE REST, AND FOR WHICH THE SAID TIME LIMIT IS SET AT FOUR YEARS (FROM THE END OF THE RELEVANT ASSESSMENT YEAR). IN OUR VIEW, THERE HAS BEEN THUS NO CONSIDERATION OF T HE MATERIAL BEING NOW RELIED UPON BY THE A.O., I.E., IN RECORDING THE REASONS FOR THE RE OPENING AND IN ISSUING THE NOTICE U/S.148. WE ARE UNDER THE CIRCUMSTANCES UNABLE TO READ ANY F URTHER LIMITATION IN LAW IN THE A.O. PROCEEDING TO INITIATE THE REASSESSMENT UNDER SUCH A SITUATION, EXCEPT OF COURSE OF REASON TO BELIEVE, AND WHICH BRINGS US TO OUR NEXT STEP ( B) AFORE-NOTED. (ALSO REFER PARA 6(A)) THE REASON TO BELIEVE IN THE INSTANT CASE IS, AGAIN , STRIKING; THERE BEING A MARKED DIFFERENCE BETWEEN THE RENT RATE ASSESSED AND THAT ASSESSABLE, I.E., BASED ON THE ASSESSMENT U/S. 143(3) FOR THE PRECEDING YEAR, AND WHICH WOULD ITSELF BE BASED ON MATERIALS. THE APEX COURT IN POORAN MAL VS. DIRECTOR OF INSPECTION [1974] 93 ITR 505 (SC) HAS CLARIFIED RELEVANCY TO BE THE PRIME FA CTOR IN DECIDING THE ADMISSIBILITY OR OTHERWISE OF EVIDENCE UNDER THE INDIAN JURISPRUDENC E. THIS GETS IMPORTED IN THE ACT BY THE CONSIDERATION OF THE MATERIAL OR INFORMATION BE ARING A RATIONAL AND LIVE LINK OR NEXUS 10 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. WITH THE FORMATION OF THE BELIEF AS TO ESCAPEMENT O F INCOME. THE FACT OF THE ASSESSMENT HAVING BEEN CONCLUDED AT A MUCH HIGHER RATE IS ITSE LF A STRONG PERSUASIVE GROUND, AN OBJECTIVE BASIS, FOR FORMING THE BELIEF, EVEN IF IT MAY HAVE SOME SUBJECTIVE ELEMENT TO IT, FOR INFERRING UNDER ASSESSMENT OF INCOME. SUFFICIEN CY OF REASONS, IT IS TRITE, IS NOT AN ASPECT THAT IS RELEVANT, AT THIS STAGE, WHICH IS TH E EXISTENCE OF A REASONABLE BELIEF, HELD IN GOOD FAITH, AS TO ESCAPEMENT OF INCOME (REFER, VIZ. RAYMOND WOOLLEN MILLS LTD. VS. ITO [1999] 236 ITR 34 (SC); ITO VS. LAKMANI MEWAL DASS [1976] 103 ITR 437 (SC); S. NARAYANAPPA V. CIT [1967] 63 ITR 219 (SC)). IT NEEDS TO BE APPRECIATE D, WE MAY ADD AT THIS STAGE, THAT WHAT IS RELEVANT IS TO ARRIVE AT A FAIR ASSESSMENT OF THE ANNUAL LETTING VALUE OF THE RELEVANT PROPERTY, I.E., THE SUM FOR WHICH I T MAY REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR. THE MATTER IS PURELY FACTUAL, AND IT IS FOR THIS REASON THAT THE COMPARATIVE CASES ASSUMED PRIME RELEVANCE. THE EXERCISE WAS MAD E EVEN FOR THE CURRENT YEAR. EVEN THOUGH IN ALL THE CASES SO COMPARED THERE WAS A DEP OSIT BY THE TENANT ACCOMPANYING THE RENTAL ARRANGEMENT, IT WAS LOWER THAN THAT OBTAININ G IN THE INSTANT CASE, SO THAT THE RENTAL BEING HIGHER, THE SAME WAS ADOPTED IN THE ASSESSEE S CASE ON BEST AVAILABLE INFORMATION BASIS. IT IS PERHAPS THIS LIMITATION THAT GETS DILU TED OR REMOVED IN COMPLETING THE ASSESSMENT FOR A.Y. 2004-05, SO THAT THE RENT FETCH ED WITHOUT OR A LOWER DEPOSIT IS TO THAT EXTENT MORE COMPARABLE AND NEARER TO THE REQUIREMEN T OF LAW, I.E., THE FAIR RENTAL VALUE OF THE PROPERTY PER SE . THE THIRD ASPECT [(C)] OF THE MATTER IS ALSO SELF E XPLANATORY AND SELF EVIDENT, I.E., FROM THE MATERIAL ON RECORD, AND SANS ANY DISPUTE. WE, ACCORDINGLY, FIND DUE SATISFACTIO N OF THE PREREQUISITE CONDITIONS AS WELL AS DUE COMPL IANCE OF PROCEDURE IN ITS RESPECT, SO THAT THERE IS A VALID ASSUMPTION OF JURISDICTION U/ S.147 OF THE ACT QUA THIS GROUND OR REASON # 1. WE DECIDE ACCORDINGLY. GROUND # 2 MAINTENANCE CHARGES 4.1 THE ASSESSEES CASE BEFORE US WAS THAT THE A.O. COULD NOT HAVE POSSIBLY FORMED SUCH AN OPINION IN-AS-MUCH AS THERE WAS A BINDING D ECISION BY THE FIRST APPELLATE AUTHORITY IN THE ASSESSEES OWN CASE FOR A.Y. 2004- 05 (DATED 05.12.2009/PB PGS.42-45), 11 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. SO THAT IT WAS AVAILABLE ON RECORD AT THE TIME OF R ECORDING REASONS AND ISSUE OF NOTICE U/S.148 ON 23.02.2011. THE A.O. COULD NOT HAVE, THU S, UNDER THE CIRCUMSTANCES, FORMED A VIEW INCONSISTENT WITH THAT HELD BY THE FIRST APPEL LATE AUTHORITY DELETING THE DISALLOWANCE OF MAINTENANCE CHARGES PAID TO THE HOUSING SOCIETY. THE REVENUE HAD IN FACT EVEN ACCEPTED BY THE SAID DECISION BY NOT PREFERRING ANY APPEAL BEFORE THE APPELLATE TRIBUNAL. THIS VIEW HAD BEEN UPHELD BY THE TRIBUNAL IN THE CA SE OF ATOMSTROYEXPORT VS. DY. CIT (IN ITA NO.8037/MUM(L)/2010 DATED 04.12.2013/COPY ON RE CORD). IN FACT, IT HAS BEEN HELD THAT EVEN IF THE DEPARTMENT WAS IN APPEAL BEFORE A HIGHER APPELLATE AUTHORITY, THE ORDER OF THE LOWER APPELLATE AUTHORITY BEING BINDING ON IT, IT WOULD PREVAIL; THE APPELLATE ORDER MERGING WITH THAT OF THE SUBORDINATE AUTHORITY/S (R EFER PARA 12 OF THE SAID ORDER). 4.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WOULD, ON THE OTHER HAND, CONTEND THAT, TRUE, THE REVENUE HAD NOT PREFERRED AN APPEAL AGAIN ST THE ORDER BY THE FIRST APPELLATE AUTHORITY IN THE ASSESSEES CASE FOR A.Y. 2006-07, BUT THAT SHOULD NOT BE INFERRED AS AN ACCEPTANCE BY THE REVENUE OF HIS VIEW IN THE MATTER . THE NON-PREFERENCE OF AN APPEAL BY THE REVENUE WAS ON ACCOUNT OF SECTION 268A, WHICH P LACES A MONETARY LIMIT FOR PREFERRING APPEALS AGAINST THE ORDERS OF THE VARIOU S APPELLATE AUTHORITIES BEFORE THE HIGHER FORUM. THE SCRUTINY NOTE PUT UP BY THE CONCERNED A. O. IN THE MATTER WAS PLACED BY HIM ON RECORD IN THIS REGARD. 5.1 THE ISSUE, THUS, ON MERITS THAT ARISES IS NOT A CONSIDERATION OF THIS ASPECT BY THE A.O. AT THE TIME OF THE ORIGINAL ASSESSMENT, WHICH HE DECIDEDLY DID NOT, PROMPTING US TO STATE THAT THE ORDER OF THE LD. CIT(A), STATING SO, IS DE HORS THE FACTS AND THE MATERIAL ON RECORD; RATHER, AS IT APPEARS, WITHOUT APPLICATION OF MIND, BUT IF THE A.O. COULD, IN VIEW OF THE ORDER BY THE FIRST APPELLATE AUTHORITY IN THE A SSESSEES OWN CASE, AT ALL FORM AN OPINION AS TO ESCAPEMENT OF INCOME, I.E., ON THE SAME GROUN D. THE ISSUE IS PURELY LEGAL, AND WHICH WE SHALL BE REQUIRED TO EXAMINE; THERE BEING NO DIS PUTE EITHER QUA THE CONSIDERATION (OF THE SAID ISSUE) OR THE RELEVANCE OF THE REASON RECO RDED OR WITH REGARD TO OBSERVANCE OF DUE PROCEDURE, I.E., THE ELEMENTS (A) TO (C) AS SPECIFI ED AT PARA 3.3 ABOVE. THE ASSESSEE HAS IN THIS REGARD RELIED ON THE ORDER BY THE TRIBUNAL IN THE CASE OF ATOMSTROYEXPORT (SUPRA). THE 12 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. SAME IS WITHOUT ANY REFERENCE TO JUDICIAL PRECEDENT S OR DISCUSSION OF LAW IN THE MATTER. THE BASIS OF THE TRIBUNALS ORDER, AS WOULD BE EVID ENT FROM THE FOREGOING, IS THE DOCTRINE OF MERGER. THE ORDER OF THE ASSESSING AUTHORITY HAV ING MERGED WITH THAT OF THE FIRST APPELLATE AUTHORITY, IT WAS NOT OPEN FOR THE FORMER TO CONTINUE TO ENTERTAIN A VIEW INCONSISTENT THEREWITH, EVEN IF FOR A DIFFERENT YEA R, SO THAT THERE COULD BE NO FORMATION OF BELIEF AS TO THE ESCAPEMENT OF INCOME ON THE VERY S AME GROUND. 5.2 THE FIRST ISSUE THEREFORE THAT ARISES BEFORE US IS IF THE CITED ORDER BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ATOMSTROYEXPORT (SUPRA) IS BINDING ON US. THIS IS AS IN THAT CASE WE SHALL BE OBLIGED TO ADOPT AND FOLLOW THE SAME VI EW. AS EXPLAINED BY THE TRIBUNAL IN NAPAR DRUGS PVT. LTD. VS. DY. CIT [2006] 98 ITD 285 (DEL) (TM), AFTER REVIEW OF PRECEDENTS, IT IS NOT SO. THOUGH THE TRIBUNAL, WHER E NOT IN AGREEMENT WITH AN EARLIER DECISION, REFER THE MATTER TO ITS LARGER BENCH, THI S CANNOT BE SAID AS A MATTER OF RULE, SO THAT WHERE THERE IS AMPLE JUSTIFICATION, THE BENCH IS EN TITLED TO TAKE A DIFFERENT VIEW. THE SAME STANDS REITERATED AGAIN IN ITO VS. BAKER TECHNICAL SERVICES (P.) LTD. [2010] 125 ITD 1 (MUM) (TM). WE MAY IN THIS REGARD REFER TO THE DECI SION IN THE CASE OF DY. CIT VS. OMAN INTERNATIONAL BANK SAOG [2006] 100 ITD 285 (MUM) (SB)/[2006] 102 TTJ 207 (M UM) (SB). THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. THANE ELECTRICITY SUPPLY LTD. [1994] 206 ITR 727 (BOM) HAS CLARIFIED THAT EVEN TH E DECISION OF THE NON- JURISDICTIONAL HIGH COURT IS NOT BINDING ON THE TRI BUNAL. IT IS ONLY THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT OR THE APEX COURT THAT CONSTITUTES A BINDING PRECEDENT. FURTHER ON, AS WE SHALL PRESENTLY SEE, THE SAID ORD ER BY THE TRIBUNAL IS IN DIRECT CONFLICT WITH THE SETTLED LAW IN THE MATTER OF ASSUMPTION OF JURISDICTION U/S.147, AS WELL AS THE DECISION BY THE APEX COURT IN THE CASE OF C. K. GANGADHARAN V. CIT [2008] 304 ITR 61 (SC). WE SHALL, ACCORDINGLY, PROCEED TO EXAMINE THE ISSUE ON MERITS, TAKING THE SAID DECISION BY THE CO-ORDINATE BENCH AS PERSUASIVE IN NATURE. THE FIRST THING THAT STRIKES US IN THE MATTER IS TH AT THE ASSESSEES CHALLENGE IS TO THE ASSUMPTION OF JURISDICTION, I.E., THE VALIDITY THER EOF IN LAW. TOWARD THE SAME, A REASONABLE GROUND WOULD CLOTHE THE A.O. WITH THE REQUISITE JUR ISDICTION. THE ADEQUACY OR SUFFICIENCY 13 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. OF THE REASON/S IS NOT AN ISSUE OR GERMANE; IN FACT NOT BEING A JUSTICIABLE ISSUE FOR THE COURT TO EXAMINE THE SAME. CONCLUSIVENESS IS NOT A CONDITION OR RELEVANT AT THAT STAGE WHICH WOULD FOLLOW LATER. WHY, THE A.O., WHERE CONV INCED, MAY NOT PROCEED TO EFFECT THE ADDITION/DISALLOWANCE UNDER CONTEMPLATION EVEN FOR THE RELEVANT YEAR, BUT THAT WOULD HAVE BEEN NO BEARING ON THE JURISDICTION PER SE . AS SUCH, THE VERY BASIS OF THE DECISION BY THE TRIBUNAL, I.E., WHAT HAD TRANSPIRED ON MERITS F OR ANOTHER YEAR, MAY NOT BE OF RELEVANCE OR IMPACT JURISDICTION, BEING A MATTER SUBSEQUENT. THE SAME REPRESENTS TRITE LAW (REFER, INTER ALIA , ITO VS. SELECTED DALURBAND COAL CO. PVT. LTD. [1996] 217 ITR 597 (SC); CENTRAL PROVINCES MANGANESE ORE CO. LTD. VS. ITO [1991] 191 ITR 662 (SC)). THE ASSESSEES ARGUMENT IS THUS FUNDAMENTALLY FLAWED . OUR SECOND OBSERVATION IN THE MATTER IS THAT IF THE A.O. CANNOT ENTERTAIN A BELIEF, I.E., WHICH IS VALID IN LAW, AS TO THE ESCAPEMENT O F INCOME ON A PARTICULAR GROUND, FOR THE REASON OF THE FIRST APPELLATE AUTHORITY HAVING DELE TED THE ADDITION/DISALLOWANCE ON THAT GROUND FOR ANOTHER YEAR, THE SAME WOULD ONLY IMPLY THAT HE CANNOT IN LAW MAKE THE SAID ADDITION OR EFFECT THE SAID DISALLOWANCE IN THE ASS ESSEES CASE FOR ANY OTHER YEAR. THIS IS AS IT WOULD BE A CONTRADICTION IN TERMS TO HOLD THA T WHILE HE CAN HAVE NO REASON TO BELIEVE THE ESCAPEMENT OF INCOME ON THAT GROUND, HE CAN EFF ECT THE CORRESPONDING ADDITION/ DISALLOWANCE IN THE REGULAR ASSESSMENT, AS WHERE IT IS NOT A CASE OF REOPENING OF ASSESSMENT. THE LD. AR, ON BEING CONFRONTED THUS DU RING HEARING, WAS UNABLE TO FURNISH ANY SATISFACTORY ANSWER. THE ONLY BAR ON THE PLENAR Y POWER OF ASSESSMENT OF THE A.O. IN THE CASE OF REASSESSMENT, INITIATED WITHIN FOUR YEA RS OF THE RELEVANT ASSESSMENT YEAR, IT NEEDS TO BE BORNE IN MIND, IS A REASON TO BELIEVE . OF COURSE, A REVIEW IS OUSTED, BUT THEN, AS EXPLAINED BY THE APEX COURT IN KELVINATOR OF INDIA LTD . (SUPRA), THERE IS A DIFFERENCE BETWEEN THE POWER TO REVIEW AND POWER TO REASSESS. PLACING SUCH A RESTRICTION ON THE POWER OF ASSESSMENT OF THE ASSESSING AUTHORI TY IS CONTRARY TO THE SCHEME OF THE ACT, BESIDES WOULD OPERATE TO CAUSE PREJUDICE TO TH E REVENUE. EVEN THE CBDT DOES NOT UNDER LAW HAVE THE POWER TO INTERFERE WITH THE A.O. S INDEPENDENCE IN THE MATTER OF MAKING THE ASSESSMENT, BEING PRECLUDED U/S. 119(1)( A) FOR REQUIRING THE A.O. TO MAKE THE ASSESSMENT OR TO DISPOSE OF A PARTICULAR CASE IN A PARTICULAR MANNER, AS WELL AS IN FACT THE 14 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. FIRST APPELLATE AUTHORITY (SECTION 119(1)(B)). WHAT , FOR INSTANCE, IF THE REVENUE SUCCEEDS IN APPEAL FOR THE EARLIER YEAR, SO THAT THE ORDER O F THE FIRST APPELLATE AUTHORITY, FOLLOWING WHICH AN EMBARGO IS SOUGHT TO BE PLACED ON THE REVE NUE TO GIVE EFFECT TO ITS VIEW, IS REVERSED BY A HIGHER APPELLATE FORUM? THIS WOULD IN EFFECT TAKE AWAY THE REVENUES RIGHT OF APPEAL, A STATUTORY RIGHT, IN THE CASE OF THE AS SESSEE FOR YEARS OTHER THAN FOR WHICH THE ORDER OF THE FIRST APPELLATE AUTHORITY HAS BEEN REN DERED IN THE FIRST INSTANCE. THE APEX COURT IN C. K. GANGADHARAN (SUPRA) CLARIFIED THAT THE NON-FILING OF AN APPEAL BY THE REVENUE IN ONE CASE COULD NOT BE CONSIDERED AS AN A CCEPTANCE ON ITS PART OF THE ISSUE DECIDED BY A LOWER APPELLATE FORUM, SO THAT IT IS A T LIBERTY TO PREFER AN APPEAL BEFORE THE HIGH COURT OR THE APEX COURT ON THE SAME ISSUE. THE REVENUE HAS ESTABLISHED THAT THERE WAS NO ACCEPTANCE BY IT OF THE VIEW OF THE FIRST AP PELLATE AUTHORITY IN THE PRESENT CASE, BUT WAS CONSTRAINED IN APPEALING THERE-AGAINST PER FORC E S. 268A. IN FACT, A PROVISION PRESCRIBING A PROCEDURE FOR PREVENTING REPETITIVE A PPEALS (BEFORE THE HIGH COURT OR APEX COURT) U/S.158A OF THE ACT IS MADE IN LAW ONLY TO E ASE THE TEDIUM INVOLVED IN MAKING REPETITIVE APPEALS ON THE SAME QUESTION OF LAW. THE ARGUMENT AS MADE AMOUNTS TO IMPORTING THE PRINCIPLE OF RES ADJUDICATA TO THE PROCEEDINGS UNDER THE ACT, WHICH IT IS TRITE DOES NOT APPLY THERETO (REFER: NEW JEHANGIR VAKIL MILLS LTD. V. CIT [1963] 49 ITR 137 (SC); S. NARAYANAPPA (SUPRA)). FURTHER, IN OUR VIEW, THIS SHALL ALSO OPERATE TO OF FEND ARTICLE 14 OF THE CONSTITUTION OF INDIA. THIS IS AS WHILE THE A.O. IS PRECLUDED I N LAW TO PROCEED AGAINST THE SAID ASSESSEE, HE IS FREE TO PROCEED ON THAT GROUND IN R ESPECT OF OTHER ASSESSEES FALLING WITHIN HIS JURISDICTION, AS THERE IS NO MERGER IN THOSE CA SES. AGAIN, THIS SHALL ALSO NOT BIND OTHER ASSESSING OFFICERS IN THE COUNTRY WHO MAY PROCEED T O EFFECT THE ADDITION/DISALLOWANCE ON THAT GROUND. INTERESTINGLY, THE ASSESSEE, WHILE REL YING ON THE APPELLATE ORDER FOR AN EARLIER YEAR (A.Y. 2004-05) TO ARGUE AN ESTOPPEL ON THE REV ENUE FROM PURSUING THE MATTER FOR OTHER YEARS, YET CONSIDERS ITSELF AS NOT BOUND BY I T, INASMUCH AS IT RETURNS A LOWER SUM FOR THE CURRENT YEAR FOR NO OSTENSIBLE REASON. THAT IS, ADOPTS AN INHERENTLY CONTRADICTORY STAND. 15 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. COMING BACK TO THE DECISION IN THE CASE OF C. K. GANGADHARAN (SUPRA), IMPLICIT IN THE PROPOSITION THAT THE REVENUE IS NOT ESTOPPED FR OM FILING AN APPEAL DESPITE HAVING CHOSEN NOT TO DO SO ON THE SAME ISSUE ON AN EARLIER OCCASION, IS THE NOTION THAT IT CONTINUES TO FRAME ASSESSMENTS CONSISTENT WITH ITS EARLIER VIEW, WHICH HAD NOT FOUND FAVOUR WITH THE APPELLATE AUTHORITY, THOUGH HAD NOT BEEN APPEALED AGAINST BY IT. THIS IS PRECISELY WHY WE STATED OF THE TRIBUNALS DECISION BEING RELIED UPON BY THE ASSESSEE AS BEING IN DIRECT CONFLICT WITH THAT BY THE APEX COUR T. 5.3 WE ARE, THEREFORE, WITH RESPECT, OF THE CONSIDE RED VIEW THAT THE A.O. CANNOT BE BOUND IN ANY MANNER IN THE MATTER OF MAKING THE ASS ESSMENTS, EXCEPT WHERE AND TO THE EXTENT REGULATED AND PROVIDED FOR BY LAW. THE SAME, IT MAY BE APPRECIATED, DOES NOT IMPINGE UPON OR INVALIDATE THE DOCTRINE OF MERGER, WHICH WOULD EXTEND ONLY TO THE YEAR FOR WHICH THE FIRST APPELLATE AUTHORITY HAS PASSED THE ORDER, AND FOR WHICH YEAR, THE A.O. HAS IN FACT ALREADY MADE THE ADDITION/DISALLOWANCE WHICH IS SOUGHT TO BE RESTRAINED OR ESTOPPED. THERE BEING NO ISSUE WITH REGARD TO THE S ATISFACTION OF THE CONDITIONS FOR ASSUMPTION OF JURISDICTION ON THIS GROUND, WHICH WA S NOT AT ALL A SUBJECT MATTER OF CONSIDERATION AT THE TIME OF ORIGINAL ASSESSMENT, T HERE IS THUS A VALID ASSUMPTION OF JURISDICTION QUA THIS GROUND AS WELL. WE DECIDE ACCORDINGLY. CASE LAW 6. THOUGH WE HAVE RELIED EXTENSIVELY ON THE DECISIO NS BY THE HONBLE APEX COURT, SETTLING THE VARIOUS ISSUES ARISING, WE MAY ALSO ST ATE OUR CONSIDERATION OF THE DECISIONS BY THE HIGH COURTS RELIED UPON BY THE PARTIES, IF ONLY TO EXHIBIT SO, AS BELOW, AND PARTICULARLY THAT BY THE HONBLE JURISDICTIONAL HIGH COURT: A) ARONI COMMERCIALS LTD. (SUPRA): THIS DECISION IS BASED ON THE CONSIDERATION OF THE RELEVANT FACTS BY THE A.O. AT THE TIME OF ORIGINAL ASSESSMENT, AND THEREFORE TO THAT EXTENT SUPPORTIVE OF OUR DECISION. THE PURPORT OF THE DECISION IS THAT RAISING A QUERY IN THE MATTER ITSELF IMPLIES A CONSIDERATION OF THE MATTER BY THE A.O. THIS IS ALM OST A TRUISM, AS IT CANNOT BUT BE PRESUMED SO, SO THAT THE ABSENCE OF ANY REFERENCE T O THE MATTER IN THE ASSESSMENT ORDER CANNOT BE DECISIVE OF THE MATTER. IN OTHER WO RDS, NON-CONSIDERATION CANNOT 16 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. BE LIGHTLY INFERRED. WE UNDERSTAND THIS TO BE THE R ATIO OF THE DECISION, WHICH WOULD THUS PREVAIL AND GUIDE US IN APPLICATION OF THE REL EVANT LAW IN THE WIDE VARIETY OF FACTS AND CIRCUMSTANCES THAT ARISE AND OBTAIN IN TH E DIFFERENT FACT SETTINGS PRESENTED IN DIFFERENT CASES. CONSIDERATION OR OTHERWISE OF A MATTER, IT NEEDS TO BE APPRECIATED, IS A MATTER OF FACT, WHICH THOUGH TEMP ERED WITH SOME GUIDELINES, AS FOR INSTANCE PROVIDED BY THE HONBLE COURT, AS ALSO EARLIER BY THE DECISIONS BY THE APEX COURT, TO WHICH REFERENCE HAS BEEN MADE BY US. IN THE FACTS OF THE CASE AT HAND, THERE IS, AS WE HAVE FOUND, NOTHING ON RECORD TO SUGGEST EVEN REMOTELY THE CONSIDERATION OF THE MATERIAL IN THE FORM OF ASSESS MENT OF INCOME FROM THE VERY SAME PROPERTY FOR A PRECEDING YEAR. RATHER, GIVEN T HE NATURE OF THE MATERIAL, ON THE CONTRARY, THE PRESUMPTION, ON THE BASIS OF THE MATE RIAL ON RECORD, WOULD BE OF ITS NON CONSIDERATION, RATHER THAN OF CONSIDERATION. TH ERE IS NO QUERY ON THE INCOME FROM THE PROPERTY IN THE PAST OR ITS ASSESSMENT, AN D WHICH, AS IT TURNS OUT, TO BE A VERY MATERIAL FACT. THERE IS ALSO NO EXPLANATION BY THE ASSESSEE, AND WHICH IS ITSELF INDICATIVE OF NO QUERY IN THIS REGARD OR THIS ASPEC T OF THE MATTER HAVING BEEN MADE DURING ASSESSMENT, AS TO WHY, NOTWITHSTANDING ITS A SSESSMENT AT A HIGHER FIGURE IN THE PAST, A LOWER FIGURE IS ASSESSABLE FOR THE CURR ENT YEAR. AS SUCH, UNDER THESE CIRCUMSTANCES, TO SUGGEST A CONSIDERATION WOULD BE WITHOUT ANY BASIS, COMPLETELY INCONSISTENT AND CONTRARY TO THE RECORD, I.E., WHOL LY PRESUMPTUOUS. RATHER, THE DIFFERENCE IS SO STRIKING, THAT TO SUGGEST ITS CONS IDERATION BY THE A.O. WOULD BE AN INDICTMENT AS TO PERVERSITY AND MALA FIDES AT THE END OF THE ASSESSING AUTHORITY. THERE IS OR CAN BE NO PRESUMPTION, EITHER ON FACT O R IN LAW, THAT MERELY OR ONLY BECAUSE A MATERIAL IS ON RECORD, IT WOULD HAVE BEEN CONSIDERED BY THE A.O. WE IN THIS REGARD DERIVE SUPPORT FROM THE DECISION IN THE CASE OF KALYANJI MAVJI & CO. (SUPRA). THE SAID CITED DECISION HAS IN RATIO NO AP PLICATION IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. B) INDIAN HUME PIPE CO. LTD. (SUPRA) : THE SAID DECISION IS OF REASSESSMENT BEYOND FOUR YE ARS, AND ON THE ASPECT OF TRUE AND FULL DISCLOSURE WITHIN THE MEANING OF THE TERM U/S.147 OF THE ACT. THE SAME, THUS, HAS NO APPLICATION IN THE FACTS AND CIRCUMSTA NCES OF THE PRESENT CASE. C) CARTINI INDIA LTD. (SUPRA): THE DECISION, AS ITS READING WOULD SHOW, DOES NOT L AY ANY PROPOSITION OF LAW THAT IS ANY DIFFERENT FROM THAT ADVANCED AND ELUCIDATED BY THE APEX COURT, EVEN AS CLARIFIED BY THE HONBLE COURT ITSELF, BUT IS BASED UPON CONSIDERATION OF MATERIAL ON RECORD, SO THAT IT WAS HELD TO BE A CASE OF CHANGE OF OPINION, WHICH, IT IS TRITE LAW, PRECLUDES REASSESSMENT; THE A.O. HAVING NO POWER OF REVIEW, WHICH IS VESTED WITH THE CIT(ADMINISTRATION) U/SS. 263 AND 264 OF THE AC T. THE SAID CASE, THUS, WOULD BE OF NO ASSISTANCE TO THE ASSESSEE. D) IDEA CELLULAR LTD. (SUPRA): 17 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. THE DECISION IS AGAIN A CASE OF REASSESSMENT PROCEE DINGS INITIATED AFTER FOUR YEARS, DILATING THE SCOPE OF FULL AND TRUE DISCLOSURE OF A LL THE MATERIAL FACTS, AN ASPECT WHICH IS ABSENT IN THE INSTANT CASE. THE OTHER ELEM ENTS OF THIS DECISION FIND MENTION IN ARONI COMMERCIALS LTD. (SUPRA), DISCUSSED HEREINBEFORE. THE SAID DECISION, THEREFORE, HAS NO APPLICATION IN THE INST ANT CASE. ON THE CONTRARY, WE FIND THE DECISIONS BY THE HONB LE COURT, AS IN THE CASE OF EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD. V S. ADDL. CIT [2013] 350 ITR 651 (BOM) AND ELEGANZA JEWELLERY LTD. VS. CIT (IN WP NO. 2763 OF 2013 DATED 18.02.2014/COPY ON RECORD), FOLLOWING IT; THE SPECI AL LEAVE PETITION (SLP) AGAINST THE LATTER HAVING BEEN IN FACT DISMISSED BY THE APEX CO URT, AS CONFIRMATORY OF THE POSITION THAT WITHIN A PERIOD OF FOUR YEARS DISCLOSURE BY THE ASS ESSEE IS NOT RELEVANT, AND ALL THAT HAS TO BE SEEN IS IF THE A.O. HAS APPLIED HIS MIND TO THE RELEVANT ASPECT OR MATERIAL. IF A MATERIAL HAS BEEN CONSIDERED, THERE IS NO QUESTION OF IT BEI NG REVISITED OR RECONSIDERED AGAIN, AS THE SAME WOULD BE ONLY A REVIEW. ON THE OTHER HAND, IF IT HAS BEEN NOT, AS WE HAVE FOUND FOR THE REASONS RECORDED (REFER PARAS 3.3 AND 6(A) ABOVE); THE REASONS RECORDED BEING SUPPORTED BY MATERIAL/S, IT WOULD NOT BE A CASE OF CHANGE OF OPINION. THE SAID DECISIONS, THUS, CLEARLY SUPPORT OUR DECISION, I.E., QUA REASON # 1. CO NO. 32/MUM/2014 (A.Y. 2006-07) 7. AS AFORE-NOTED, THE ASSESSEES CO IS LARGELY SUP PORTIVE, BESIDES RAISING GROUNDS ON MERITS AS WELL. WE HAVE ALREADY HELD, WHILE DISPOSI NG THE REVENUES APPEAL, IN FAVOUR OF THE VALIDITY OF THE REOPENING OF REASSESSMENT, THER EBY DISPOSING ACCORDINGLY THE ASSESSEES FIRST TWO GROUNDS. THE LD. CIT(A) HAVING DECIDED THE ASSESSEES APPEAL ONLY ON THE LEGAL GROUND OF THE VALIDITY OF THE INSTANT PRO CEEDINGS, THE MATTER SHALL NECESSARILY HAVE TO TRAVEL BACK TO HIS FILE FOR ADJUDICATING TH E ASSESSEES APPEAL ON MERITS, I.E., THE OTHER GROUNDS RAISED BY THE ASSESSEE BEFORE HIM. TH E ASSESSEES CO, THUS, BECOMES INFRUCTUOUS TO THAT EXTENT. WE DECIDE ACCORDINGLY. 18 ITA NO. 7713/M/2012 & CO NO.32/M/2014 (A.Y. 2006-07 ) TIVOLI INVESTMENT & TRADING CO. PVT. LTD. 8. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED A ND THE ASSESSEES CO IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 08, 20 14 SD/- SD/- (AMIT SHUKLA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER , MUMBAI; -' DATED : 08.08.2014 ! . ' . ./ROSHANI , SR. PS !'#$ %$' / COPY OF THE ORDER FORWARDED TO : 1. . / THE APPELLANT 2. /0. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. 1!2 3 /'4# , ( 4#+ , , / DR, ITAT, MUMBAI 6. 3 5$ 6 / GUARD FILE & / BY ORDER, ' / &( ) (DY./ASSTT. REGISTRAR) , , / ITAT, MUMBAI