BROKEN HILLS INTERNATIONAL PVT.LTD., MUMBAI V. INCOME-TAX OFFICER-6(1)(4), MUMBAI

ITA 1104/MUM/2009

• Counselvise Citation: 110419914 RSA 2009
• Duration Of Justice: 2 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 10-10-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 18-02-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G P TRIVEDI
• Assessee Lawyers: VIJAY B MEHTA
• Keywords: Reopening of assessment; Business income; Business expenditure; Period of limitation; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI B.R. MITTAL (JUDICIAL MEMBER) AND SHRI R.K. PANDA (ACCOUNTANT MEMBER) ITA NOS. 1104 TO 1107/MUM/2009 ASSESSMENT YEARS- 2002-03 TO 2005-06 M/S. BROKEN HILLS INTERNATIONAL PVT. LTD., PSL TOWERS, 615, MAKWANA ROAD, MAROL, ANDHERI (E), MUMBAI-400 059 PAN-AABCB 4567H VS. THE ITO-6(1)(4), AAYAKAR BHAVAN, MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VIJAY B. MEHTA RESPONDENT BY: SHRI G.P. TRIVEDI DATE OF HEARING : 10.10.2011 DATE OF PRONOUNCEMENT: O R D E R PER BENCH: THE ASSESSEE HAS FILED THESE FOUR APPEALS FOR ASSE SSMENT YEARS 2002- 03 TO 2005-06 AGAINST THE ORDERS OF LD. CIT(A) ALL DT. 18.12.2008. IN ALL THESE APPEALS, ASSESSEE HAS TAKEN COMMON GROUNDS EXCEPT T HAT AMOUNT OF DISALLOWANCES OF EXPENSES VARIES EACH YEAR. FOR TH E SAKE OF CONVENIENCE, WE REPRODUCE GROUNDS OF APPEAL TAKEN BY ASSESSEE FOR A SSESSMENT YEAR 2002-03 WHICH ARE AS UNDER: ITA NOS. 1104-1107/M/09 2 1. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ACTION OF AO OF PASSING THE ASSESSMENT ORDER. THE LD. CIT(A) OUGHT TO HAVE HELD THE SAME AS BAD IN LA W AS PASSED WITHOUT JURISDICTION. 2. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ACTION OF AO OF TREATING BUSINESS INCOME EARNED BY THE APPELLANT AS THAT FROM OTHER SOURCES. 3. THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ACTION OF AO OF RS. 33,73,458/-. 2. THE ASSESSEE HAS FILED ADDITIONAL GROUND OF APPE AL VIDE APPLICATION DT. 19 TH APRIL, 2010 FOR ALL THE ASSESSMENT YEARS UNDER CON SIDERATION AND SAME IS AS UNDER: THE LD. CIT(A) HAS ERRED IN LAW AND IN FACTS IN DI SMISSING THE GROUND OF THE APPELLANT CHALLENGING THE REOPENING U /S. 148 OF THE I.T. ACT. THE LD. CIT(A) OUGHT TO HAVE HELD THA T THE REOPENING U/S,. 148 OF THE ACT WAS WITHOUT ANY VALI D REASON TO BELIEVE AND HENCE, THE CONSEQUENTIAL ASSESSMENT ORD ER IS BAD IN LAW AND WITHOUT JURISDICTION. 3. BEFORE WE CONSIDER GROUNDS OF APPEAL TAKEN BY AS SESSEE ON MERITS, IT IS RELEVANT TO STATE THAT ADDITIONAL GROUND TAKEN B Y ASSESSEE IS LEGAL GROUND AND IT DOES NOT REQUIRE NEW FACTS. THEREFORE, WE D ECIDED TO ADMIT ADDITIONAL GROUND OF APPEAL TAKEN BY ASSESSEE FOR OUR ADJUDICA TION. 4. WE STATE RELEVANT FACTS FOR ASSESSMENT YEAR 2002 -03. THAT ASSESSEE FILED ITS RETURN OF INCOME ON 30 TH OCTOBER, 2002 DECLARING INCOME OF RS. 15,78,078/-. THE SAID RETURN WAS PROCESSED U/S. 14 3(1) OF THE I.T. ACT. SUBSEQUENTLY, AO INITIATED REASSESSMENT PROCEEDINGS BY ISSUING NOTICE U/S. 148 OF THE I.T. ACT DT. 12.3.2007, COPY PLACED AT PA GE-1 OF PAPER BOOK. COPY OF REASONS RECORDED BY AO ARE PLACED AT PAGES 4 & 5 OF THE PAPER BOOK. ITA NOS. 1104-1107/M/09 3 IN THE REASONS RECORDED, AO STATES THAT ASSESSEE HAS STATED THAT IT IS A MANUFACTURER OF GRANITE TILE & SLABS BUT AS PER PRO FIT & LOSS ACCOUNT, INCOME OF THE ASSESSEE CONSISTS OF THE FOLLOWING: 1) LAND LEASE RENT : RS. 48,59,160/- 2) SERVICE CHARGES (NET) : RS. 74,700/- IN THE REASONS, IT IS FURTHER STATED THAT FOR ASSES SMENT YEAR 2001-02, ADDITION TO THE RETURNED INCOME HAS BEEN DONE BY DI SALLOWING SALARY PART OF RS. 18,00,000/- TO THREE LADY DIRECTORS, SALE PROMO TION EXPENSES OF RS.4,60,020/- AND TRAVELLING & CONVEYANCE OF RS. 9, 62,084/-. THE AO STATES THAT IN THE ASSESSMENT YEAR UNDER CONSIDERATION I.E . A.Y. 2002-03, ASSESSEE HAS CLAIMED FOLLOWING EXPENSES I.E. (I) SALARY AND ALLOWANCES RS. 21,60,000/-, (II) SALES PROMOTION EXPENSES RS. 2,16,250/- AND (I II) TRAVELLING AND CONVEYANCE RS. 8,08,224/-. THE AO STATES THAT ABOV E EXPENSES ARE OVERSTATED FOR THE A.Y. 2002-03. DISALLOWANCES SIM ILAR TO THE ONES OF A.Y. 2001-02 NEED TO BE MADE FOR THIS YEAR. THE DISALLO WANCES TO BE MADE ARE WELL IN EXCESS OF RS. ONE LAKHS. THE AO HAS FURTHE R STATED THAT IN VIEW OF ABOVE, HE HAS REASON TO BELIEVE THAT TAXABLE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT FOR A.Y. 2002-03. ACCORDINGLY AO ISSUED NOTICE U/S. 148 OF THE I.T. ACT. 5. PURSUANT THERETO ASSESSEE STATED VIDE ITS LETTER DT. 9 TH APRIL, 2007, COPY PLACED AT PAGE-2 OF THE PAPER BOOK THAT RETURN ALRE ADY FILED TO BE TREATED AS RETURN FURNISHED PURSUANT TO AFORESAID NOTICE ISSUE D U/S. 148 OF THE ACT. THE ITA NOS. 1104-1107/M/09 4 AO COMPLETED THE ASSESSMENT U/S. 143(3) R.W.S 147 O F THE ACT VIDE ORDER DT. 19 TH DECEMBER, 2007 ASSESSING THE INCOME OF THE ASSESSE E AS INCOME FROM OTHER SOURCES AND DISALLOWED EXPENSES AGGREGATING T O RS. 33,73,458/-. BEING AGGRIEVED, ASSESSEE FILED APPEAL BEFORE FIRST APPEL LATE AUTHORITY. 6. ON BEHALF OF THE ASSESSEE, IT WAS CONTENDED THAT REOPENING OF ASSESSMENT UNDER SECTION 148 IS BAD IN LAW AS IT AM OUNTS TO MERE CHANGE OF OPINION BETWEEN PREDECESSOR AND THE SUCCESSOR OFFIC ER. IT WAS SUBMITTED THAT ALL THE INFORMATION NECESSARY FOR COMPLETION O F ASSESSMENT WAS PROVIDED TO THE ASSESSING OFFICER IN THE RETURN OF INCOME WH ICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. THAT THERE IS NOTHING N EW WHICH HAS COME TO THE KNOWLEDGE OF THE ASSESSING OFFICER FOR REOPENING OF THE ASSESSMENT. 7. HOWEVER, LEARNED CIT(A) HAS NOT ACCEPTED THE CON TENTION OF THE ASSESSEE. HE HAS STATED THAT THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS SHOWN ONLY LAND LEASE RENT AND SERVICE CHARGES AND NO BUSINESS WAS CONDUCTED BY THE ASSESSEE. THE LEARNED CIT(A) HAS HELD THAT IF THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT TAXABLE INCOME H AS ESCAPED ASSESSMENT, THEN HE MAY ISSUE NOTICE AND RECOMPUTE THE INCOME O R LOSS AS PER LAW. THAT THE ASSESSEE HAS NOT CONDUCTED ANY BUSINESS BUT REC EIVING LAND LEASE RENTAL AND SERVICE CHARGES WHICH IS ASSESSABLE UNDER THE H EAD INCOME FROM OTHER SOURCES. THE LEARNED CIT(A) HAS HELD THAT REOPENI NG OF ASSESSMENT IS VALID. HENCE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIB UNAL. 8. ON BEHALF OF THE ASSESSEE, LD. AR CONTENDED THAT THE ASSESSING OFFICER HAS RECORDED REASON ON THE BASIS OF ASSESSMENT ORDE R OF ASSESSMENT YEAR ITA NOS. 1104-1107/M/09 5 2001-02. HE REFERRED PARA 3 OF THE SAID ASSESSMENT ORDER OF ASSESSMENT YEAR 2001-02, COPY PLACED AT PAGES 6 TO 8 OF THE PA PER BOOK AND SUBMITTED THAT THIS CONTROVERSY AROSE IN FEB., 2003. HOWEVER , REASSESSMENT PROCEEDINGS HAVE BEEN INITIATED IN 2007. THE LEARN ED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE REASSESSMENT PROC EEDINGS HAD BEEN INITIATED AFTER A LAPSE OF ABOUT FOUR YEARS, ON THE BASIS OF ASSESSMENT ORDER OF A.Y. 2001-02 AND THE SAID ASSESSMENT WAS MADE IN MA RCH, 2004. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT AS SESSING OFFICER PROCESSED THE RETURN FOR THE A.Y. 2002-03 AND ISSUED REFUND O RDER IN MARCH, 2003 EVEN THOUGH HE WAS AWARE OF THE CONTROVERSY THAT THE ASS ESSEE WAS NOT CARRYING ON ANY BUSINESS BUT WAS RECEIVING ONLY LEASE RENT I NCOME AND SERVICE CHARGES. THEREFORE, THE ASSESSING OFFICER COULD CON SIDER THE CASE FOR SCRUTINY INSTEAD OF INITIATING REASSESSMENT PROCEEDINGS. IT WAS A LAPSE ON THE PART OF AO AND LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT MACHINERY OF REASSESSMENT PROCEEDINGS COULD NOT BE RESORTED TO C OVER UP LAPSES ON THE PART OF ASSESSING OFFICER. HE REFERRED TO DECISION OF ITAT, AMRITSAR BENCH IN THE CASE OF PYRAMID SOFTWARE AND TECHNOLOGY VS. DCIT 297 ITR (AT) 293, AND DECISION OF ITAT, MUMBAI BENCH IN ITA NO.2546/M UM/04 DT.23.10.2007 IN THE CASE OF ITO VS. BUTTONS R US INDIA LTD. 8.1. THE LEARNED AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THAT ASSESSING OFFICER COULD ISSUE NOTICE UNDER SECTION 143(2) INSTEAD OF ISSUING NOTICE UNDER SECTION 148 OF THE ACT TO INITIATE REA SSESSMENT PROCEEDINGS AS IN BETWEEN 31.10.2003 TO 12.3.2007 NO NEW MATERIAL HAD COME ON RECORD I.E. THE DATE ON WHICH NOTICE UNDER SECTION 148 OF THE A CT WAS ISSUED. THE ITA NOS. 1104-1107/M/09 6 LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT TH E ASSESSING OFFICER APPLIED HIS MIND IN NOT INITIATING REGULAR ASSESSME NT PROCEEDINGS BY ISSUING NOTICE UNDER SECTION 143(2) OF THE ACT ON THE RETU RN FILED ON 30.10.2002 AND THEREFORE THE ACTION OF THE ASSESSING OFFICER TO IS SUE NOTICE UNDER SECTION 148 OF THE ACT IS NOT VALID AND REFERRED TO DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. 256 ITR 1. HE SUBMITTED THAT THEIR LORDSHIPS HELD THAT A PRESUMPTION HAS TO BE DRAWN THAT ASSESSING OFFICER APPLIED HIS MIND WHEN HE ACCEPTED THE RETUR N FILED BY THE ASSESSEE BY PROCESSING IT UNDER SECTION 143(1) OF THE ACT AND A LSO ISSUED REFUND TO THE ASSESSEE ON 28.3.2003. THE LEARNED AUTHORISED REPR ESENTATIVE SUBMITTED THAT THE HON'BLE APEX COURT CONFIRMED ABOVE DECISIO N OF HON'BLE DELHI HIGH COURT AND IT IS REPORTED AT 320 ITR 561. HE ALSO R EFERRED TO IN RESPECT OF HIS ABOVE SUBMISSION, DECISION OF HON'BLE BOMBAY HIGH C OURT IN THE CASE OF ASIAN PAINTS LTD. VS. DCIT 223 CTR 441, DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. SMT. JYOTI DEVI 218 CTR 264 AND ALSO DECISIONS OF ITAT, MUMBAI BENCH IN THE CASE OF AIPITA MARKETING PVT. LTD . VS. ITO 21 SOT 302 AND THE ORDER DT.29.7.2011 IN I TA NO.4615 & 4616/MUM/2010 IN THE CASE OF M/S. YASH DEVELOPERS VS. ITO . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT NO TICE ISSUED UNDER SECTION 148 OF THE ACT HAS TO BE QUASHED IN VIEW THEREOF. 8.2. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTE D THAT SINCE THERE WAS INORDINATE DELAY IN ISSUING NOTICE U/S. 148 OF THE ACT I.E. WHEN THE ASSESSING OFFICER COMPLETED ASSESSMENT FOR A.Y. 2001-02 ON 31 .3.2004 AND ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT FOR A.Y. 2002-0 3 ON 12.3.2007, THE ITA NOS. 1104-1107/M/09 7 INITIATION OF REASSESSMENT PROCEEDINGS ARE TO BE HE LD INVALID IN VIEW OF DECISION OF ITAT, JAIPUR BENCH IN THE CASE OF ITO V S. BHANWARLAL SATYANARAIN 20 ITD 666. 8.3. THE LEARNED AUTHORISED REPRESENTATIVE FURTHER RELYING ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF HINDUST AN UNILEVER LTD. VS. DCIT 325 ITR 102 SUBMITTED THAT THE INITIATION OF REASSE SSMENT PROCEEDINGS IS TO BE HELD INVALID BECAUSE THE ASSESSING OFFICER EXERC ISED HIS JURISDICTION TO INITIATE REASSESSMENT PROCEEDINGS WHEN HE COULD MAK E REGULAR ASSESSMENT UNDER SECTION 143(3) OF THE ACT ON THE BASIS OF THE REGULAR RETURN FILED BY THE ASSESSEE. HE SUBMITTED THAT IF THE ASSESSING OFFIC ER TAKES AN ACTION WHICH IS AVAILABLE TO HIM FOR A SPECIFIC PURPOSE INSTEAD OF FOLLOWING REGULAR COURSE OF ACTION, THE SAID ACTION OF THE ASSESSING OFFICER HA S TO BE HELD TO BE UNREASONABLE. THEREFORE REASSESSMENT PROCEEDINGS SH OULD BE QUASHED. 8.4. THE LEARNED AUTHORISED REPRESENTATIVE ALSO SUB MITTED THAT THE ASSESSING OFFICER INITIATED REASSESSMENT PROCEEDING S ON THE BASIS OF FACTS OF A.Y. 2001-02 AND IT COULD NOT BE MADE BASIS FOR SUB SEQUENT ASSESSMENT YEARS. HE RELIED ON DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF SMT. JAMILA ANSARI VS. I.T. DEPARTMENT AND ANR. 225 ITR 490 AND SUBMITTED THAT NOTICE U/S. 148 IS INVALID. HENCE A SSESSMENT ORDER IS LIABLE TO BE QUASHED. 9. HOWEVER, LEARNED DEPARTMENTAL REPRESENTATIVE SUB MITTED THAT ASSESSING OFFICER HAD NOT MADE UP HIS MIND WHEN HE WAS MAKING ASSESSMENT ITA NOS. 1104-1107/M/09 8 FOR THE A.Y. 2001-02 AND ONLY MADE AN ENQUIRY BY IS SUING LETTER IN FEB., 2003 TO ENQUIRE FROM ASSESSEE AS TO WHETHER THE ASSESSEE WAS ENGAGED IN THE BUSINESS OR NOT. HE SUBMITTED THAT THE ASSESSING O FFICER MADE UP HIS MIND THAT THE INCOME SHOWN BY THE ASSESSEE FOR A.Y. 2001 -02 WAS NOT FROM BUSINESS BUT INCOME FROM OTHER SOURCES ONLY WHEN AS SESSMENT WAS COMPLETED ON 31.3.2004. THE LEARNED DEPARTMENTAL R EPRESENTATIVE SUBMITTED THAT THRUST OF THE SUBMISSION OF LEARNED AUTHORISED REPRESENTATIVE IS THAT THE ASSESSING OFFICER DID NOT ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT AND THEREFORE THE ASSESSING OFFICER MADE UP HIS MIND TO ACCEPT THE RETURN. HE SUBMITTED THAT THERE ARE GUIDELINES ISS UED BY CBDT TO TAKE SELECTIVELY THE SCRUTINY OF ASSESSMENT AND THIS TOO IS DONE BY CASS I.E. BY COMPUTER SYSTEM. HE SUBMITTED THAT MERELY BECAUSE RETURN FILED BY THE ASSESSEE WAS ACCEPTED UNDER SECTION 143(1) OF THE A CT, IT COULD NOT MEAN THAT THE ASSESSING OFFICER DECIDED NOT TO ISSUE NOT ICE UNDER SECTION 143(2) OF THE ACT AND APPLIED HIS MIND. HE SUBMITTED THAT TH E NOTICE UNDER SECTION 143(2) OF THE ACT COULD BE ISSUED ONLY WHEN THE CAS E IS SELECTED FOR SCRUTINY ASSESSMENT. THE LEARNED DEPARTMENTAL REPRESENTATIV E SUBMITTED THAT THE ASSESSING OFFICER HAS ISSUED NOTICE UNDER SECTION 1 48 OF THE ACT WITHIN PERIOD OF LIMITATION AS PRESCRIBED UNDER SECTION 149 OF TH E ACT AND THEREFORE INITIATION OF REASSESSMENT PROCEEDINGS COULD NOT BE QUASHED MERELY BECAUSE THERE WAS TIME GAP OF ABOUT THREE YEAR WHEN THE ASS ESSMENT FOR THE PRECEDING ASSESSMENT YEAR WAS COMPLETED AND INITIAT ION OF REASSESSMENT PROCEEDINGS FOR ASSESSMENT YEARS UNDER CONSIDERATIO N. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT BY INITI ATING REASSESSMENT ITA NOS. 1104-1107/M/09 9 PROCEEDINGS BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT, THERE IS NO INCONVENIENCE TO THE ASSESSEE AND THE ASSESSING OFF ICER HAS EXERCISED HIS POWER AS PER PROVISIONS OF LAW TO BRING TO TAX INCO ME WHICH HAD ESCAPED ASSESSMENT. THE LEARNED DEPARTMENTAL REPRESENTATIV E FURTHER SUBMITTED THAT ASSESSEE DISPUTED THE ASSESSMENT ORDER FOR THE ASSE SSMENT YEAR 2001-02 AND THE SAID ASSESSMENT ORDER WAS CONFIRMED BY TRIBUNAL BY ITS ORDER DT.24.10.2008. HE SUBMITTED THAT THE ASSESSEE COUL D NOT TAKE ADVANTAGE WHEN THE ASSESSING OFFICER HAS TAKEN ACTION AS PER PROVISION OF LAW MERELY ON THE BASIS THAT THE ASSESSING OFFICER DID NOT INITIA TE REASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEARS UNDER CONSIDERATION I.E AS SESSMENT YEARS 2002-03 TO 2005-06 JUST AFTER MAKING ASSESSMENT FOR THE ASS ESSMENT YEAR 2001-02 ON 31.3.2004. HE SUBMITTED THAT LEARNED CIT(A) IS JU STIFIED TO CONFIRM ACTION OF ASSESSING OFFICER TO INITIATE REASSESSMENT PROCEEDI NGS. 10. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LEARNED REPRESENTATIVES OF THE PARTIES AND ORDERS OF AUTHOR ITIES BELOW. WE HAVE ALSO CONSIDERED THE CASES CITED BY LEARNED AUTHORISED RE PRESENTATIVES (SUPRA). WE OBSERVE THAT THE ASSESSEE FILED RETURNS FOR THE ASSESSMENT YEAR 2002-03 DECLARING INCOME OF RS.15,78,078 ON 30.10.2002 AND THE SAID RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. WE OBSE RVE THAT ASSESSING OFFICER AFTER RECORDING THE REASONS THAT THE ASSESSEE HAS S TATED THAT IT IS A MANUFACTURER OF GRANITE TILES AND SLABS BUT AS PER PROFIT AND LOSS ACCOUNT THE INCOME OF THE ASSESSEE CONSISTS OF ONLY LAND LEASE RENT AND SERVICE CHARGES. THE ASSESSING OFFICER HAS STATED THAT THE ASSESSEE HAD CLAIMED BUSINESS EXPENSES, THE DETAILS OF WHICH ARE ALSO MENTIONED B Y HIM IN THE REASONS ITA NOS. 1104-1107/M/09 10 RECORDED AND THE SAME ARE ALSO MENTIONED HEREIN ABO VE IN PARA 4 OF THIS ORDER. THERE IS NO DISPUTE TO THE FACT THAT SUCH E XPENSES CLAIMED BY ASSESSEE WERE DISALLOWED IN ASSESSMENT YEAR 2001-02 AFTER CONSIDERING THE FACT THAT THE INCOME OF THE ASSESSEE WAS ONLY FROM LEASE RENT AND SERVICE CHARGES AND THEY WERE TO BE ASSESSED AS INCOME FROM OTHER SOURCES. THE SAID FINDING OF THE ASSESSING OFFICER WAS CONFIRMED BY THE TRIBUNAL IN ITA NO.2121/MUM/2005 BY ITS ORDER DT.24.10.2008. THERE FORE IT IS A FACT THAT THE ASSESSEE WHEN FILED THE RETURN DID NOT DISCLOSE PAR TICULARS OF INCOME TRULY AND CORRECTLY AS IT WAS WITHIN HIS KNOWLEDGE THAT IT WA S NOT CONDUCTING ANY BUSINESS AND WAS MERELY DRAWING INCOME FROM LEASE R ENT AND SERVICE CHARGES. THERE WAS NO INCOME EARNED BY THE ASSESSE E UNDER THE HEAD PROFITS AND GAINS OF BUSINESS. 10.1. DURING THE COURSE OF HEARING, THE LEARNED AUT HORISED REPRESENTATIVE SUBMITTED THAT THIS FACT WAS WITHIN THE KNOWLEDGE O F THE ASSESSING OFFICER AS THIS ISSUE WAS CONSIDERED BY HIM WHILE COMPLETING T HE ASSESSMENT FOR A.Y 2001-02 AND THEREFORE WHEN THE ASSESSING OFFICER DI D NOT CHOSE TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT BUT TO ACCEP T THE RETURN UNDER SECTION 143(1) OF THE ACT, IT IS PRESUMED THAT HE APPLIED H IS MIND. LD. AR HAS CONTENDED THAT ACTION OF THE ASSESSING OFFICER IS N OT VALID AND IT AMOUNTS TO CHANGE OF OPINION IF THE REASSESSMENT PROCEEDINGS A RE INITIATED BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT. WE DO NOT FIN D MERIT IN THE SAID CONTENTION OF THE LEARNED AUTHORISED REPRESENTATIVE . WHEN NO ASSESSMENT WAS MADE BY THE ASSESSING OFFICER, QUESTION OF EXAM INING THE ISSUE, IN OUR OPINION DOES NOT ARISE. THE HON'BLE APEX COURT HAS HELD IN THE CASE OF ACIT ITA NOS. 1104-1107/M/09 11 VS. RAJESH JHAVERI STOCK BROKER PVT. LTD. 291 ITR 5 00 THAT SO LONG AS INGREDIENTS OF SECTION 147 OF THE ACT ARE FULFILLED , THE ASSESSING OFFICER IS FREE TO INITIATE PROCEEDINGS UNDER SECTION 147 OF THE AC T AND FAILURE TO TAKE STEPS FOR REGULAR ASSESSMENT UNDER SECTION 143(3) WILL NO T RENDER THE ASSESSING OFFICER POWERLESS TO INITIATE REASSESSMENT PROCEEDI NGS EVEN WHEN SUMMARY ASSESSMENT WITH INTIMATION UNDER SECTION 143(1) (A) HAD BEEN ISSUED. IT WAS FURTHER HELD THAT UNDER SUBSTITUTED SECTION 147, AS AMENDED BY FINANCE ACT, 1999, EXISTENCE OF ONLY THE CONDITION THAT, IF THE ASSESSING OFFICER FOR WHATEVER REASON HAS REASON TO BELIEVE THAT INCOME H AS ESCAPED ASSESSMENT , CONFERS JURISDICTION TO REOPEN THE ASSESSMENT. IN VIEW OF THE ABOVE DECISION OF THE HON'BLE APEX COURT (SUPRA), W E ARE OF THE CONSIDERED VIEW THAT ABOVE SUBMISSIONS OF LEARNED AUTHORISED R EPRESENTATIVE, AS MENTIONED HEREIN ABOVE, ARE NOT SUSTAINABLE PARTICU LARLY WHEN THE ASSESSING OFFICER RECORDED THE REASONS, STATING THAT HE HAS R EASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND HAS INITIATED REASSESSMENT PROCEEDINGS BY ISSUING NOTICE U/S. 148 OF THE ACT WITHIN THE TIME AS ALLOWABLE UNDER THE ACT. THAT, THE CASES CI TED BY LEARNED AUTHORISED REPRESENTATIVE (SUPRA) ARE DISTINGUISHABLE TO THE F ACTS OF THE CASE OF THE ASSESSEE BEFORE US. IN REGARD TO THE DECISION OF PY RAMID SOFTWARE AND TECHNOLOGY (SUPRA), WE OBSERVE THAT REASSESSMENT PR OCEEDINGS WERE HELD TO BE NOT VALID BECAUSE IT WAS FOUND THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF MANUFACTURE OF LAPTOP COMPUTER AND PROJ ECT WAS APPROVED BY MINISTRY OF INDUSTRIES, GOVT. OF INDIA, STATE EXCIS E DEPARTMENT, AS WELL AS TAX DEPARTMENT AND THE ASSESSEE HAD ALSO OBTAINED LOAN FROM STATE BANK OF ITA NOS. 1104-1107/M/09 12 INDIA. IN THE LIGHT OF THE ABOVE FACTS, IT WAS FOUND THAT REASONS RECORDED BY ASSESSING OFFICER FOR INITIATING REASSESSMENT PROCE EDINGS WERE VAGUE ON THE BASIS OF WHICH HE INITIATED REASSESSMENT PROCEEDING S. IN CASE BEFORE US, THERE IS NO DISPUTE TO THE FACT THAT REASONS RECORD ED BY THE ASSESSING OFFICER ARE SPECIFIC AND ARE BASED ON A CONCLUSIVE FINDING OF FACTS AS FOUND IN RESPECT OF ASSESSMENT YEAR 2001-02, WHICH WERE CONFIRMED EV EN BY THE TRIBUNAL, WHEN THE ASSESSEE DISPUTED THE FINDINGS OF ASSESSIN G OFFICER BEFORE IT. SIMILARLY, THE DECISION OF ITAT, MUMBAI BENCH IN TH E CASE OF BUTTON R US INDIA(SUPRA) RELIED UPON BY LEARNED AUTHORISED REPRE SENTATIVE IS NOT RELEVANT TO THE FACTS OF THE CASE OF THE ASSESSEE AS IN THAT CASE THE TRIBUNAL CONFIRMED THE ORDER OF THE LEARNED CIT(A) BY OBSERVING IN PAR A 14 AS UNDER : 14. AFTER EXAMINING THESE FINDINGS OF THE L EARNED CIT(A) AGAIN WE DO NOT FIND ANY INFIRMITY IN THESE FINDING S BECAUSE THE CIT(A) HAS EXAMINED THE ISSUE AND FOUND THAT NEITHE R THERE WAS ANY REASON TO BELIEVE THAT THE INCOME HAS ESCAPED N OR THERE WAS ANY REASON TO ISSUE NOTICE UNDER SECTION 148 WH EN THE ASSESSMENT WAS PENDING AS NO INTIMATION WAS ISSUED UPTO THE DATE WHEN THE INFORMATION RECEIVED FROM ENFORCEMENT DIRECTORATE. THEREFORE, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE CONFIRM THE FINDINGS OF THE LEARN ED CIT(A) IN THIS REGARD ALSO. 10.2. DURING THE COURSE OF HEARING, THE LEARNED AUT HORISED REPRESENTATIVE REFERRED TO DECISION OF HON'BLE DELHI HIGH COURT I N THE CASE OF KELVINATOR OF INDIA LTD. (SUPRA) AND SUBMITTED THAT WHEN NO NEW FA CTS HAD COME TO THE NOTICE OF AO BETWEEN THE DATE OF ASSESSMENT FOR THE ASSESSMENT YEAR 2001- 02 WAS MADE AND THE DATE WHEN THE NOTICE UNDER SECT ION 148 WAS ISSUED AND THEREFORE THE ASSESSMENT IS TO BE HELD AS INVALID. WE OBSERVE THAT IN THE CASE OF KELVINATOR OF INDIA LTD. (SUPRA), THE ORIGIN AL ASSESSMENT WAS MADE ITA NOS. 1104-1107/M/09 13 UNDER SECTION 143(3) OF THE ACT AND IN THAT CONTEXT THEIR LORDSHIPS HELD THAT WHEN THE REGULAR ASSESSMENT ORDER IS PASSED IN TERM S OF SUB-SECTION (3) OF SECTION 143, A PRESUMPTION CAN BE RAISED THAT SUCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND. THEREFORE, THERE HAS TO BE A PRESUMPTION THAT ASSESSING OFFICER CONSIDERED ALL ASPECTS AND IF NO TANGIBLE MATERIAL/NEW MATERIAL HAS COME ON RECORD AND STILL ASSESSING OFF ICER INITIATE REASSESSMENT PROCEEDINGS, IT AMOUNTS TO CHANGE OF OPINION AND TH AT CANNOT BE THE BASIS FOR REOPENING OF COMPLETED ASSESSMENT. AS MENTIONED HE REIN ABOVE, THIS IS NOT THE POSITION IN THE CASE BEFORE US. THERE WAS NO R EGULAR ASSESSMENT MADE IN THE CASE OF ASSESSEE AND THEREFORE THE QUESTION OF CHANGE OF OPINION BY THE ASSESSING OFFICER WHILE INITIATING REASSESSMENT PRO CEEDINGS DOES NOT ARISE. THEREFORE, THE SAID CASE OF THE HON'BLE DELHI HIGH COURT IS NOT RELEVANT TO THE FACTS OF THE CASE BEFORE US. SIMILARLY, DECISION O F HON'BLE BOMBAY HIGH COURT IN THE CASE OF ASIAN PAINTS LTD. (SUPRA) AS WELL AS THE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF SMT. JYOTI DEVI (SUPRA) RELIED UPON BY LEARNED AUTHORISED REPRESENTATIVE ARE NOT APPLICABL E TO THE CASE OF THE ASSESSEE BEFORE US. IN THAT CASE, IT WAS FOUND TH AT THE ASSESSING OFFICER REOPENED THE ASSESSMENT ON THE GROUND THAT SOME MAT ERIAL WHICH WAS AVAILABLE ON RECORD WHEN THE ORIGINAL ASSESSMENT WA S MADE WAS INADVERTENTLY EXCLUDED FROM CONSIDERATION. THEREFORE, THE ACTION OF THE ASSESSING OFFICER TO INITIATE REASSESSMENT PROCEEDINGS WAS HELD NOT VALI D. THE LEARNED AUTHORISED REPRESENTATIVE ALSO PLACED RELIANCE ON THE DECISION S OF MUMBAI BENCH OF ITAT IN THE CASE OF AIPITA MARKETING PVT. LTD. (SUPRA) A ND YASH DEVELOPER (SUPRA). WE OBSERVE THAT THE SAID CASES ALSO DO NOT SUPPORT THE CASE OF THE ASSESSEE ITA NOS. 1104-1107/M/09 14 AS IN THOSE CASES ALSO THE ASSESSEE DISCLOSED TRULY AND FULLY ALL MATERIAL NECESSARY FOR COMPLETING THE ASSESSMENT ON THE FIRS T INSTANCE ITSELF AND UNLIKE IN THE CASE OF ASSESSEE BEFORE US THAT THE ASSESSEE DID NOT DISCLOSE ALL RELEVANT FACTS TRULY AND CORRECTLY, AS MENTIONED HE REIN ABOVE I.E. THE ASSESSEE WAS NOT CARRYING ON BUSINESS OF MANUFACTURE OF GRAN ITE TILE AND SLABS AND DERIVING INCOME FROM LAND LEASE RENT AND SERVICE CH ARGES ONLY WHICH WAS CHARGEABLE UNDER THE HEAD INCOME FROM OTHER SOURCES . THE LEARNED AUTHORISED REPRESENTATIVE AT THE TIME OF HEARING, C ONTENDED THAT WHEN THE ASSESSING OFFICER COULD COMPLETE THE ASSESSMENT UND ER SECTION 143(3) OF THE ACT, THE ACTION OF THE ASSESSING OFFICER TO INITIAT E REASSESSMENT PROCEEDINGS UNDER SECTION 148 OF THE ACT IS TOBE HELD INVALID, WE DO NOT FIND MERIT IN THE SAID CONTENTION OF THE LEARNED AUTHORISED REPRESENT ATIVE CONSIDERING THE FACTS OF THE CASE BEFORE US. THE ASSESSING OFFICER CONSIDERED THAT THE ASSESSEE WAS NOT CARRYING ON THE BUSINESS AND THE S AME WAS NOTICED WHILE MAKE ASSESSMENT FOR ASSESSMENT YEAR 2001-02 AND THE REFORE HE FORMED A BELIEF THAT EXPENSES CLAIMED BY THE ASSESSEE IN THE ASSESSMENT YEARS UNDER CONSIDERATION UNDER THE HEAD BUSINESS EXPENSES AR E NOT ALLOWABLE AND IN SUCH CIRCUMSTANCES THE ASSESSING OFFICER FORMED THE BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THERE IS NO DISPUTE TO THE FACT THAT NO ASSESSMENT PROCEEDINGS COULD BE COMPLETED S AVE AND ACCEPT TO INITIATE REASSESSMENT PROCEEDINGS BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT. WE MAY STATE THAT THE ASSESSING OFFICER ISSUE D NOTICES UNDER SECTION 148 OF THE ACT WITHIN THE TIME AND IN ACCORDANCE WI TH LAW. THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF HINDUSTAN UNILEVER LTD. (SUPRA) CITED BY ITA NOS. 1104-1107/M/09 15 LEARNED AUTHORISED REPRESENTATIVE IS NOT APPLICABL E AS IN THAT CASE THERE WAS A SIMPLE COMPUTATION ERROR IN THE ASSESSMENT ORDER WHICH COULD BE RECTIFIED UNDER SECTION 154 OF THE ACT BUT THE ASSESSING OFFI CER CHOOSE TO INITIATE REASSESSMENT PROCEEDINGS AND THEREFORE THEIR LORDSH IPS HELD THAT THE PROVISIONS OF STATUTE HAVE TO BE EXERCISED IN SUCH A MANNER WHICH ARE COMMENSURATE WITH THE PURPOSE I.E. SOUGHT TO BE ACH IEVED BY THE LEGISLATURE. ALL STATUTORY POWERS HAVE TO BE EXERCISED REASONABL Y AND THEREFORE THE ASSESSING OFFICER SHOULD HAVE RESORTED TO THE POWER UNDER SECTION 154 OF THE ACT INSTEAD OF ISSUING NOTICE UNDER SECTION 148 OF THE ACT. HENCE PROPOSITION OF ABOVE DECISION IS NOT RELEVANT TO THE FACTS OF T HE CASE BEFORE US, AS THE INCOME WHICH ESCAPED ASSESSMENT COULD BE BROUGHT TO TAX ONLY BY INITIATING REASSESSMENT PROCEEDINGS AGAINST THE ASSESSEE. 10.3. IT IS ALSO RELEVANT TO STATE THAT HON'BLE RAJA STHAN HIGH COURT HAS HELD IN SUMAN STEELS VS. UNION OF INDIA 269 ITR 412 (RAJ) THAT WHEN ASSESSMENT WAS DONE UNDER SECTION 143(1)(A) OF THE ACT AND NOT UNDER SECTION 143(3) OF THE ACT, THERE WAS NO ACTION FOR THE DEPARTMENT TO EXPRESS ANY OPINION AND THEREFORE, WHILE ISSUING NOTICE UNDER SECTION 148, THERE WAS NO CHANGE OF OPINION INVOLVED. WE MAY ALSO CONSIDER IT NECESSAR Y TO REFER THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF BHARAT V. PATEL VS. UNION OF INDIA 268 ITR 116 WHEREIN IT WAS HELD THAT WHEN THERE IS ONLY A MERE ACCEPTANCE OF RETURN AND EVEN IF THERE IS A REFUND ETC IT DOES NOT AMOUNT TO AN OPINION ON TAXABILITY OF INCOME. THEIR LORDSHIP OBSERVED THAT IN THE LIBERALIZED AND SIMPLIFIED TAX COLLECTION REGIME, MERE ACCEPTANCE A ND ACKNOWLEDGEMENT OF RETURN, ISSUANCE OF REFUND CANNOT BE ELEVATED TO TH E STATUS OF REGULAR ITA NOS. 1104-1107/M/09 16 ASSESSMENT AND FORMATION OF OPINION ABOUT THE INCID ENCE OF TAX HAD AN OPPORTUNITY TO CLAIM OVER AN ITEM MENTIONED IN THE RETURN OF INCOME. IT WAS HELD THAT, ON THE OTHER HAND, THE DEEMING SECTION P ROVIDED BY EXPLANATION 2 TO SECTION 147 OF THE ACT, IMPARTS AN ADDED OBLIGAT ION IN THE MATTER OF BELIEVING ESCAPEMENT OF INCOME. ACCORDINGLY, THE E XPLANATION TO CLAUSE (C), EVEN WHETHER AN ASSESSMENT IS MADE BUT INCOME CHARG EABLE TO TAX HAS BEEN UNDER ASSESSED, IT HAS TO BE DEEMED THAT SUCH INCOM E HAS ESCAPED ASSESSMENT. IN VIEW OF THE ABOVE FACTS, WE ARE OF THE CONSIDERED VIEW THAT THE SUBMISSION OF THE LEARNED AUTHORISED REPRESENTA TIVE THAT THERE WAS CHANGE OF OPINION BY THE ASSESSING OFFICER AND/OR T HERE IS AN INORDINATE DELAY, BETWEEN THE ASSESSMENT ORDER MADE FOR THE AS SESSMENT YEAR 2001-02 AND TO INITIATE REASSESSMENT PROCEEDINGS AND THEREF ORE INITIATION OF REASSESSMENT PROCEEDINGS IS NOT VALID HAS NO MERIT AND THE SAID CONTENTION OF THE LEARNED AUTHORISED REPRESENTATIVE IS TO BE REJE CTED. THE RELIANCE PLACED BY LEARNED AUTHORISED REPRESENTATIVE ON THE DECISIO N OF JAIPUR BENCH OF ITAT IN THE CASE OF BHANWARLAL SATYANARAYAN (SUPRA), WE OBSERVE THAT IN THE SAID CASE THE ISSUE WAS AS TO WHETHER THE APPLICATION FI LED BY THE ASSESSEE, IF NOT DISPOSED OFF IN THE PRESCRIBED TIME IS WHETHER DEE MED TO BE ACCEPTED IF NO ORDER OR DEEMED TO BE REJECTED. THEREFORE THE ISSU E INVOLVED IN THAT CASE IS TOTALLY DIFFERENT AND IS NOT RELEVANT TO THE ISSUE UNDER CONSIDERATION. 10.4 IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED VIEW THAT ACTION OF THE ASSESSING OFFICER IN ISSUING NOTICE UNDER SECTION 1 48 OF THE ACT IS IN ACCORDANCE WITH LAW AS IN THE CASE BEFORE US, THE I NCOME WHICH HAD ESCAPED ASSESSMENT, AS PER THE REASONS RECORDED COULD BE BR OUGHT TO TAX ONLY BY ITA NOS. 1104-1107/M/09 17 INITIATING REASSESSMENT PROCEEDINGS. HENCE, WE UPH OLD THE ORDER OF LEARNED CIT(A) IN CONFIRMING THE ACTION OF THE ASSESSING OF FICER TO INITIATE REASSESSMENT PROCEEDINGS BY ISSUING NOTICE UNDER SE CTION 148 OF THE ACT FOR ASSESSMENT YEAR 2002-03. 11. IN RESPECT OF THE ASSESSMENT YEAR 2003-04 TO 200 5-06, THE FACTS ARE IDENTICAL EXCEPT THERE IS VARIATION IN THE DATES OF FILING OF RETURNS AND EXPIRY OF THE TIME LIMIT FOR ISSUING NOTICES UNDER SECTION 14 3(2) OF THE ACT. HOWEVER, THERE IS NO DISPUTE THAT NOTICE UNDER SECTION 148 O F THE ACT HAS BEEN ISSUED EVEN IN RESPECT OF ASSESSMENT YEARS 2003-04 TO 2005 -06 ALSO WITHIN THE TIME AND NO REGULAR ASSESSMENT PROCEEDINGS WERE PENDING. THE RETURNS FILED FOR ASSESSMENT YEARS 2003-04 TO 2005-06 WERE ALSO ACCEP TED UNDER SECTION 143(1) OF THE ACT. AT THE TIME OF HEARING, THE LEA RNED AUTHORISED REPRESENTATIVE ALSO MADE HIS SUBMISSION THAT THE AS SESSING OFFICER INITIATED REASSESSMENT PROCEEDINGS ON THE BASIS OF THE FACTS OF ASSESSMENT YEAR 2001- 02 AND THE SAME COULD NOT BE MADE BASIS. HOWEVER, WE OBSERVE THAT THE ASSESSING OFFICER WHILE INITIATING REASSESSMENT PRO CEEDINGS FOR ASSESSMENT YEARS 2003-04 TO 2005-06 HAS RECORDED REASONS SEPAR ATELY FOR EACH ASSESSMENT YEARS, STATING THAT INCOME OF THE ASSESS EE WAS FROM LAND LEASE RENT AND SERVICE CHARGES AND ALSO SEPARATELY MENTIO NED THE EXPENSES CLAIMED BY THE ASSESSEE WHICH COULD NOT BE ALLOWED IN VIEW OF THE FINDING OF ASSESSMENT YEAR 2001-02. IT IS EVIDENT THAT THE ASS ESSING OFFICER APPLIED HIS MIND AND CONSIDERED THE RELEVANT FACTS IN THE REASO NS RECORDED BEFORE ISSUING NOTICE UNDER SECTION 148 OF THE ACT. IT IS NOT THE CASE WHERE THE ASSESSING ITA NOS. 1104-1107/M/09 18 OFFICER HAS ACTED MECHANICALLY TO REOPEN THE ASSES SMENT FOR THE ASSESSMENT YEARS UNDER CONSIDERATION. THEREFORE, THE DECISION OF THE HON'BLE ALLAHABAD HIGH COURT, RELIED UPON BY LD. AR OF SMT. JAMILA ANSARI (SUPRA ) IS NOT APPLICABLE TO THE FACTS OF THE CASE BEFORE US. 12. IN VIEW OF ABOVE, WE HOLD THAT THE ASSESSING OFF ICER HAD VALIDLY INITIATED REASSESSMENT PROCEEDINGS FOR ALL THE ASSE SSMENT YEARS 2002-03 TO 2005-06 AND ACCORDINGLY WE UPHOLD ORDERS OF LEARNE D CIT(A) ON THIS ISSUE BY REJECTING GROUND NO.1 OF THE APPEALS READ WITH ADDI TIONAL GROUND TAKEN BY THE ASSESSEE FOR ALL THE ASSESSMENT YEARS UNDER CON SIDERATION. 13. GROUND NO.2 IN ALL THE APPEALS IS ON THE ISSUE AS TO WHETHER THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F THE ASSESSING OFFICER BY TREATING BUSINESS INCOME EARNED BY THE ASSESSEE AS INCOME FROM OTHER SOURCES. 14. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THA T ABOVE ISSUE IS COVERED AGAINST THE ASSESSEE IN VIEW OF THE ORDER O F TRIBUNAL DT. 24 TH OCTOBER, 2008 FOR THE ASSESSMENT YEAR 2001-02 IN THE ASSESSE ES OWN CASE WHEREIN THE TRIBUNAL CONFIRMED THE ACTION OF THE ASSESSING OFFICER THAT THE INCOME OF THE ASSESSEE FROM LAND LEASE RENT AND SERVICE CHARG ES IS TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES. HENCE GROUND NO.2 IN ALL THE APPEALS FOR ASSESSMENT YEARS UNDER CONSIDERATION IS REJECTE D. 15. IN GROUND NO.3 OF ALL THE APPEALS, THE ASSESSEE HAS DISPUTED THE ORDERS OF LEARNED CIT(A) IN CONFIRMING THE ACTION O F THE ASSESSING OFFICER BY ITA NOS. 1104-1107/M/09 19 DISALLOWING THE EXPENSES AMOUNTING TO RS.33,73,452 FOR ASSESSMENT YEAR 2002-03, RS.45,85,819 FOR ASSESSMENT YEAR 2003-04, RS.42,76,525 FOR ASSESSMENT YEAR 2004-05 AND RS.36,51,009 FOR ASSESS MENT YEAR 2005-06. 16. THE ASSESSEE CLAIMED ABOVE EXPENSES UNDER THE H EAD BUSINESS EXPENSES. SINCE THE ASSESSING OFFICER HAS HELD TH AT THE ASSESSEE WAS NOT CARRYING ON ANY BUSINESS AND THE INCOME SHOWN BY TH E ASSESSEE FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERATION IS ONLY FROM L AND LEASE RENT AND SERVICE CHARGES WHICH IS ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES, THE ASSESSING OFFICER DISALLOWED THE EXPENSES CLAIMED B Y THE ASSESSEE. THE LEARNED CIT(A) HAS CONFIRMED THE ACTION OF THE ASSE SSING OFFICER. HENCE THE ASSESSEE IS IN FURTHER APPEAL(S) BEFORE THE TRIBUNA L. 17. AT THE TIME OF HEARING, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ABOVE EXPENSES HAVE BEEN DISALLO WED BY FOLLOWING THE ORDER FOR THE ASSESSMENT YEAR 2001-02. HE SUBMITTE D THAT EXPENSES WHICH HAVE BEEN ALLOWED IN THE ASSESSMENT YEAR 2001-02, S UCH TYPE OF EXPENSES IN ASSESSMENT YEARS UNDER CONSIDERATION MAY BE ALLOWED . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT HE HAS N O OBJECTION TO ALLOW THE EXPENSES ON THE LINES OF THE EXPENSES WHICH HAVE BE EN ALLOWED IN ASSESSMENT YEAR 2001-02 PROVIDED THE ASSESSEE FURNI SHES REQUISITE DETAILS, TO ESTABLISH THE GENUINENESS. 18. IN VIEW OF THE ABOVE SUBMISSIONS OF THE LEARNED REPRESENTATIVES OF THE PARTIES AND CONSIDERING THE ORDER OF THE AUTHORITIE S BELOW AS WELL AS THE ORDER OF THE ITAT FOR ASSESSMENT YEAR 2001-02 DT. 24.10.2 008 (SUPRA), WE FIND ITA NOS. 1104-1107/M/09 20 SUBSTANCE IN THE SUBMISSION OF THE LEARNED REPRESEN TATIVES OF THE PARTIES. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO ALLOW SUCH EXPENSES IN ALL THE ASSESSMENT YEARS UNDER CONSIDERATION, WHICH HAVE BE EN ALLOWED FOR THE ASSESSMENT YEAR 2001-02 SUBJECT TO THE CONDITION TH AT THE ASSESSEE WILL FURNISH REQUISITE DETAILS BEFORE THE ASSESSING OFFI CER TO ESTABLISH THE GENUINENESS. THEREFORE, WE RESTORE THIS ISSUE TO T HE FILE OF THE ASSESSING OFFICER WITH THE ABOVE DIRECTION. HENCE GROUND NO. 3 IN ALL THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 19. IN THE RESULT ALL THE FOUR APPEALS OF THE ASSESS EE FOR ASSESSMENT YEARS 2002-03 TO 2005-06 ARE ALLOWED IN PART. ORDER PRONOUNCED ON THIS 9 TH DAY OF NOVEMBER, 2011 SD/- SD/- ( R.K. PANDA) (B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 9 TH NOVEMBER, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR B BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI