M/s Narendra Vegetable Products private Limited, Nagpur V. Assistant Commissioner of Income tax Central Circle-1(4), Nagpur

ITA 118/NAG/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93436 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 08-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Capital asset; Search and seizure; Question of law; Tangible material; Capital receipt; Revised return; Reassessment proceedings
• Section: 143(3); 153A; 80IB; 147; 148; 139

Judgement Text

1 ITA NOS. 1 18 TO 1 24/NAG/2013 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. S.NO. I.T.A. NO. ASSTT. YEAR. 1. 118/NAG/2013 2003 - 04 2. 119/NAG/2013 2004 - 05 3. 120/NAG/2013 2005 - 06 4. 121/NAG/2013 2006 - 07 5. 122/NAG/2013 2007 - 08 6. 123/NAG/2013 2008 - 09 7. 124/N AG/2013 2009 - 10. M/S NARENDRA VEGETABLE PRODUCTS PVT.LTD., ASSTT. COMMISSIONER OF 4 TH FLOOR, CENTRAL BUILDING NO. 3, V/S. INCOME TAX, MASTER BOMANJI LANE,KALBADEVI ROAD, CENTRAL CIRCLE - 1(4), MUMBAI - 400 002. NAGPUR. PAN AABCD3086F APPELLANT RESPONDENT. APPELLANT BY : SHRI K.P. DEWANI. RESPONDENT BY : SHRI NARENDRA KANE. DATE OF HEARING : 03 - 06 - 2015 DATE OF PRONOUNCEMENT : 31 ST JULY, 2015. O R D E R PER BENCH. THESE SEVEN APPEALS HAVE BEEN FILED BY THE ASSESSEE EMANATING FROM A COMBINED ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR DATED 6 TH MARCH, 2013 PERTAINING TO THE ASSESSMENT YEARS 2003 - 04 TO 2009 - 10. SINCE THESE APPEALS HAVE 2 ITA NOS. 1 18 TO 1 24/NAG/2013 COMMON GROUNDS AS WELL AS THE FACTS ARE ALSO IDENTICAL, THEREFORE, HEREBY C ONSOLIDATED AND DECIDED BY THIS COMMON ORDER. 2. FOR THE SAKE OF CONVENIENCE, WE HAVE TAKEN UP ASSESSMENT YEAR 2003 - 04, THE LEAD YEAR, FOR REFERENCE AND THE GROUNDS ARE REPRODUCED BELOW: 1. THE LEARNED CIT(A) ERRED IN HOLDING THAT SALES TAX INCENTIVE AV AILED F OR SETTING UP OF INDUSTRIAL UNDERTAKING CLAIMED BY ASSESSEE AS CAPITAL RECEIPT AT ` .74,15,531/ - CAN NOT BE ALLOWED IN ASSESSMENT FRAMED U/S 143(3) R.W..S. 153A OF I.T. ACT, 1961. 2. THE LEARNED A.O. ERRED IN ASSESSING SALES TAX INCENTIVE AVAILED AS REVENUE RECEIPT AND NOT ACCEPTING THE CLAIM OF ASSESSEE FOR THE SAME BEING CAPITAL RECEIPT AT THE HANDS OF THE ASSESSEE. 3. THE LEARNED A.O. OUGHT TO HAVE ACCEPTED THE CL AIM OF ASSESSEE THAT SALES TAX INCENTIVE AVAILED AT ` .74,15,531/ - UNDER SCHEME OF INCENTIVE BY GOVERNMENT OF MAHARASHTRA IS CAPITAL RECEIPT AND NOT CHARGEABLE TO TAX. 4. THE ASSESSEE DENIES LIABILITY TO BE ASSESSED TO INTEREST U/S 23 4C OF THE I.T. ACT, 1961 WITHOUT PREJUDICE, THE LEVY OF INTEREST IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 3. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER FOR ASSESSMENT YEAR 2003 - 04 PASSED UNDER SECTION 143(3) READ W ITH SECTION 153A DATED 28 - 12 - 2010 WERE THAT THE ASSESSEE COMPANY IS IN THE BUSINESS OF MANUFACTURING OF REFINED OIL AND VANASPATI GHEE. AS PER THE ASSESSMENT ORDER, A REGULAR RETURN WAS FILED UNDER SECTION 139 OF I.T. ACT ON 1 ST DECEMBER, 2003 DECLARING AN INCOME OF ` .22,30,259/ - . THERE WAS AN ACTION UNDER SECTION 132(1) OF THE I.T. ACT CONDUCTED ON 22 - 10 - 2008. THERE WAS A SEARCH ON NARENDRA BHOOT GROUP OF CASES. THE ASSESSEE BEING ONE OF THE GROUP CASE, THEREFORE, COVERED UNDER SEARCH OPERATION. 3 ITA NOS. 1 18 TO 1 24/NAG/2013 3.1 SU BSEQUENT TO THE SEARCH, A STATUTORY NOTICE UNDER SECTION 153A(1)(A) WAS ISSUED AND IN REPLY THE ASSESSEE HAS REQUESTED TO CONSIDER HIS ORIGINAL R ETURN FILED UNDER SECTION 139 AS A RETURN IN COMPLIANCE OF THE NOTICE UNDER SECTION 153A(1)(A). ON THAT BASIS THE ASSESSMENT PROCEEDINGS WERE INITIATED BY ISSUING A NOTICE UNDER SECTION 143(2) OF I.T. ACT. SOME OF THE BASIC FACTS WERE MENTIONED BY THE ASSESSING OFFICER IN PARA 7 OF ASSESSMENT ORDER, REPRODUCED BELOW FOR READY REFERENCE : 7. ASSESSEE IS A PVT. LTD. CO. IS ENGAGED IN BUSINESS OF MANUFACTURING AND SALE OF REFINED OIL, VANASPATI GHEE AND SALE OF WIND MILL GENERATED ELECTRICITY. DURING THE YEAR UNDER CONSIDERATION THE PROFIT SHOWN AS PER PROFIT AND LOSS ACCOUNT AT ` .1,16,60 ,313/ - . THE TOTAL INCOME UNDER REGULAR PROVISIONS OF LAW HAS BEEN WORKED OUT AT ` .22,30,259/ - AFTER CLAIMING DEDUCTION U/S 80IB AT ` .33,01,393/ - . THE RETURN OF INCOME IS ACCOMPANIED WITH THE AUDIT REPORT U/S 80IB IN THE FORM NO. 10CCB IN SUPPORT OF DEDUCTION U/S 80IB. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS RAISED AN ISSUE IN RESPECT OF RECEIPT OF SALES TAX INCENTIVE OF ` .74,15,531/ - TO CONSIDER THE SAME AS CAPITAL RECEIPT. THE ASSESSING OFFICER HAS DISCUSSED THIS ISSUE IN PA RA 8 OF HIS ORDER AS UNDER: DISALLOWANCE OF SALES INCENTIVE CAPITAL RECEIPT. DURING THE COURSE OF ASSESSMENT PROCEEDING THE ASSESSEES REPRESENTATIVE SUBMITTED THAT DURING THE PREVIOUS YEAR THE ASSESSEE COMPANY WAS IN RESPECT OF SALES TAX INCENTIVE AMOUNTING TO ` .74,15,531/ - . THE ASSESSEES REPRESENTATIVE CLAIMS THAT THIS AMOUNT HAS BEEN ALREADY CREDITED TO PROFIT & LOSS ACCOUNT. HOWEVER VIDE THE SUBMISSION 4 ITA NOS. 1 18 TO 1 24/NAG/2013 ASSESSEES REPRESENTATIVE CLAIMED THAT THIS RECEIPTS IS CAPITAL IN NATURE AND THEREBY NOT TAXABLE. HE PLACED RELIANCE ON THE FOLLOWING ITAT DECISIONS. 1) RELIANCE INDUSTRIES LTD. 88 ITD 273 (MUMBAI) (SB). 2) HALDIRAM FOODS INTERNATIONAL, NAGPUR. THE REQUEST OF TREATING THIS RECEIPT AS A CAPITAL RECEIPT CANNOT B E ACCEDED TO CONSIDERING U/S 147, 153A PROCEEDINGS ARE REVENUE BENEFICIAL AND THEREFORE ASSESSEE CANNOT BE ALLOWED TO MAKE FRESH CLAIMS FOR DEDUCTION. RELIANCE IS PLACED OF HONBLE SUPREME COURT DECISION IN THE CASE OF CIT V/S. SUN ENGINEERING WORKS PVT. LTD. [1992] 198 ITR 297 (SC). 4.1 AFTER DISCUSSING THE CLAIM OF THE ASSESSEE, THE ASSESSING OFFICER HAS HELD THAT THE CLAIM WAS MADE BY THE ASSESSEE WHEN THE PROCEEDINGS UNDER SECTION 153A OF I.T. ACT WERE INITIATED , WHICH WAS A FRESH CLAIM OF DEDUCTION, HENCE NOT TO BE ALLOWED IN THE LIGHT OF THE DECISION OF M/S SUN ENGINEERING WORKS 198 ITR 297 (SC). WITH THE RESULT THE AMOUNT OF INCOME WHICH WAS DECLARED BY THE ASSESSEE AS PER THE RETURN WAS ACCEPTED. THE ASSESSEE PREFERRED AN APPEAL BEFORE T HE FIRST APPELLATE AUTHORITY AGAINST THE DISALLOWANCE OF SALES TAX INCENTIVE. 5. BEFORE THE LEARNED CIT(APPEALS) IT WAS REITERATED THAT THE SALES - TAX INCENTIVE WAS RECEIVED IN NUMBER OF YEARS AND THE BIFURCATION OF THE SAME WAS AS UNDER : A.Y. S ALES TAX INCENTIVE 2004 - 05 56,96,658 2005 - 06 31,81,935 2006 - 07 97,80,596 2007 - 08 23,74,833 2008 - 09 52,12,917 2009 - 10 1,07,39,201 5 ITA NOS. 1 18 TO 1 24/NAG/2013 5.1 THE ASSESSEE HAS PLEADED THAT UNDER THE SCHEME OF INCENTIVE OF GOVERNMENT OF MAHARASHTRA, THE ASSESSEE HAS GOT THE BENEFIT OF SALES - TAX INCENTIVE. ON IDENTICAL FACTS, THE ITAT, SPECIAL BENCH IN THE CASE OF RELIANCE INDUSTRIES LTD. 88 ITD 273 (MUM.)(SB) HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY TREATING THE SAID INCENTIVE AS A CAPITAL RECEIPT IN THE HANDS OF THE ASSESSEE. HOWEVER, LEARNED CIT(APPEALS) WAS NOT CONVINCED AND OPINED THAT THE ASSESSEE WAS NOT ENTITLED TO RAISE A FRESH CLAIM DURING THE COURSE OF POST SEARCH ASSESSMENT PROCEEDINGS. THE CIT(APPEALS) HAS ALSO MENTIONED THAT THE DECISION OF SUN ENGINEERING WORKS (SUPRA) WAS APPLICABLE ON THE FACTS OF THE CASE. LEARNED CIT(APPEALS) HAS ALSO MENTIONED THAT IN THE LIGHT OF DECISION OF M/S GOETZ E (INDIA) LTD. 284 ITR 323 (SC) A DEDUCTION CAN BE CLAIMED IF IT WAS MADE IN THE RETURN FILED. FINALLY THE LEARNED CIT(APPEALS) HAS REJECTED THE CLAIM OF THE ASSESSEE IN THE FOLLOWING MANNER: 6. AFTER GOING THROUGH THE ABOVE DECISIONS AND FACTS OF THE A PPELLANT CASE, I AM NOT INCLINED TO ACCEPT THAT A FRESH CLAIM CAN BE MADE BY THE APPELLANT DURING THE COURSE OF SEARCH ASSESSMENT PROCEEDINGS, I .E. DURING 153A PROCEEDINGS IN THE PRESENT CASE DUE TO THE FOLLOWING REASONING. GOING BY THE FACTS OF THE P RESENT CASE, IT IS ONLY DURING THE 153A ASSESSMENT PROCEEDINGS, THE APPELLANT MADE THE CLAIM FOR ALLOWING THE PURPORTED CAPITAL RECEIPT CREDITED TO THE PROFIT AND LOSS ACCOUNT, THEREBY CONVERTING THE 153A PROCEEDINGS AS APPEAL PROCEEDINGS. THE APPELLAN T CANNOT BE PERMITTED, TO CONVERT THESE SEARCH ASSESSMENT PROCEEDINGS AS APPEAL OR REVISION IN DISGUISE AND SEEK RELIEF IN RESPECT OF ITEMS NOT AGITATED EARLIER AT THE RIGHT FORUM. RELIANCE IS PLACED ON THE DECISION OF THE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF K. SUDHAKAR S. SHANBHAG V. ITO (2000) 241 ITR 865 (BOM.). THE APPELLANT ARGUED TO HAVE FILED THE REVISED RETURN AS ALLOWED BY THE LAW TO CLAIM ANY MISSING CLAIMS. IT IS NOT CORRECT TO CLAIM SUCH BENEFITS IN THE ASSESSMENT PROC EEDINGS CONSEQUENT UPON SEARCH & SEIZURE ACTION. EVEN FOR THE NOTICE U/S 153A, AFTER THE SEARCH & SEIZURE ACTION, THE APPELLANT HAS REQUESTED TO TREAT ORIGINAL RETURN AS THE RETURNS IN RESPONSE TO SUCH NOTICE. THEREFORE, THE APPELLANT ARGUMENT TH AT THE MISSING CLAIMS COULD BE CONSIDERED IN THE SEARCH U/S 153A IS NOT CORRECT. 6 ITA NOS. 1 18 TO 1 24/NAG/2013 7. THE NEXT ASPECT THE APPELLANT PUT BEFORE ME FOR CONSIDERATION BY RELYING ON THE DECISION OF THE SPL. BENCH IS THAT THERE ARE SOME LIMITATIONS ON THE ASSESSING OFFICER TO CONSIDER FRESH CLAIMS NOT MADE ORIGINALLY, WHEREAS NO FRETTERS WERE IMPOSED ON THE APPELLATE AUTHORITIES AND ACCORDINGLY, THE CLAIM OF SALES TAX INCENTIVE RECEIVED SHOULD BE ALLOWED AS CAPITAL RECEIPT. ON THIS ASPECT ALSO, I DISCHARGE WITH THE SUB MISSIONS OF THE APPELLANT. IN THE CASE OF M/S RELIANCE INDUSTRIES LTD., THE SPL. BENCH JUXTAPOSED THE DECISION S OF THE SUPREME COURT IN GOETZE (INDIA) LTD. AND NATIONAL THERMAL POWER COMPANY LTD. GOING BY THE FACT THAT THE ASSESSING OFFICER DURING RE MAND PROCEEDINGS FOUND THAT ONLY PART OF THE EXPENDITURE DISALLOWED CAN BE UPHELD. HOWEVER, THAT IS NOT THE CASE OF THE APPELLANT IN THE PRESENT CASE. 6. FROM THE SIDE OF THE APPELLANT, LEARNED A.R. MR. K.P. DEWANI APPEARED. HE HAS PLEADED THAT THE MAHARASHTRA GOVERNMENT HAS GIVEN A SCHEME IN THE FORM OF SALES - TAX INCENTIVE FOR SETTING UP INDUSTRY AND WIND MILL IN THE STATE. HE HAS ARGUED THAT ALTHOUGH IT IS CORRECT THAT THE PROCEEDINGS UNDER SECTION 153A ARE REVENUE BENEFICIAL BUT SIDE BY SIDE WHEN THE STATUTE HAS PROVIDED TO AB ATE OTHER REVENUE PROCEEDINGS THEN THE ASSESSEE HAS AN OPTION TO RAISE ALL THE ISSUES WHICH HE CAN RAISE DURING THE ASSESSMENT PROCEEDINGS AS IF THE PROCEEDINGS ARE THE REGULAR ASSESSMENT PROCEEDINGS. 6.1 LEARNED A.R. HAS ALS O DRAWN OUR ATTENTION ON THE OBSERVATION OF THE ASSESSING OFFICER THAT DURING THE ASSESSMENT PROCEEDINGS THE MERITS OF THE CLAIM HAVE ALSO BEEN DISCUSSED AT LENGTH BUT WITHOUT CHALLENGING THE MERITS OF THE CLAIM THE ASSESSING OFFICER HAD BECOME HYPER TECHN ICAL BY HOLDING THAT A FRESH CLAIM OF DEDUCTION SHOULD NOT BE ALLOWED UNDER THE PROCEEDINGS UNDER SECTION 153A OF I.T. ACT. THE LEARNED A.R., MR. DEWANI HAS PLACED STRONG RELIANCE ON THE CASE OF M/S RELIANCE INDUSTRIES 88 ITD 723 (MUM.)(SB). 7 ITA NOS. 1 18 TO 1 24/NAG/2013 6.2 IN RESPEC T OF THE MERITS OF THE ISSUE THAT SUCH TYPE OF INCENTIVE WAS HELD AS CAPITAL RECEIPT IN THE HANDS OF THE ASSESSEE, RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS: 1) INDO RAMA SYNTHETICS (I) LTD. V/S. ACIT (2012) 33 CCH (DEL)(TRIB). 2) DCIT V/S. RELIANCE INDUSTRIES LTD. (2004) 88 ITD 273 (SB) 3) ITAT ORDER IN ITA NO. 191/NAG/2001 IN THE CASE OF M/S HALDIRAM FOOD INTERNATIONAL LTD., ORDER DATED 20 - 02 - 2004. 4) CIT V/S. CHAPHALKAR BROTHERS (2013) 351 ITR 309 (BOM). 5) CIT V/S. KIRLOSKAR OIL ENGINES LT D. (2014) 364 ITR 88 (BOM.). 6) ITAT ORDER IN ITA NO. 82/PN/2001 IN THE CASE OF KIRLOSKAR OIL ENGINES LTD., ORDER DATED 20 - 02 - 2004. 7) ITAT ORDER IN ITA NO. 4238/MUM/2010 IN THE CASE OF EVERSMILE CONSTRUCTION CO. PVT. LTD., ORDER DATED 30 - 08 - 2011 . 8) ITAT ORDER IN ITA NOS. 771 TO 774/PN/2010 IN THE CASE OF SANJAY NANDLAL VYAS, ORDER DATED 23 - 12 - 2011. 9) CIT V/S. SHELLY PRODUCTS & ANR. (2003) 261 ITR 367 (SC). 10) NIRMALA L. MEHTA V/S. A. BALASUBRAMANIAM CIT & ORS. (2004) 269 ITR 1 (BOM.) 11) S.R. KOSHTI V/S. CIT (2005) 276 ITR 165 (GUJ.) 12) CIT V/S. V. MR. P. FIRM 56 ITR 67 (SC). 13) CIT V/S. BHASKAR MITTER (1994) 73 TAXMAN 437 (CAL.). 8 ITA NOS. 1 18 TO 1 24/NAG/2013 14) CIT V/S. BHARAT GENERAL REINSURANCE CO. (1971) 81 ITR 303 (DEL.). 6. 3 LEARNED A.R. HAS ALSO ARGU ED THAT THE DECISION OF M/S SUN ENGINEERING WORKS 198 ITR 297 (SC) PERTAINS TO THE ASSESSMENT FRAMED UNDER SECTION 147/148 OF I.T. ACT. ON THE OTHER HAND, ASSESSMENT IN QUESTION WAS PASSED UNDER SECTION 153A OF I.T. ACT. THE HONBLE SUPREME COURT IN THE CA SE OF SUN ENGINEERING WORKS (SUPRA) HAS NOT CONSIDERED THE SCOPE OF THE PROVISIONS OF SECTION 153A OF THE I.T. ACT. RATHER IN THE CASE OF M/S EVER S MILE CONSTRUCTION CO. (SUPRA) THE RESPECTED ITAT, MUMBAI HAS CONSIDERED THE ISSUE OF ELIGIBILITY OF A FRESH CLAIM UNDER SECTION 153A AFTER DULY CONSIDERING THE DECISION OF M/S SUN ENGINEERING WORKS (SUPRA). HE HAS ALSO PLEADED THAT THE LEARNED CIT(APPEALS) HAS WRONGLY PLACED RELIANCE ON THE DECISION OF K. SUDHAKAR S. SHANBHAG 241 ITR 865 (SUPRA) BECAUSE THE SAI D DECISION ALSO RELATED TO THE ASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 148 OF THE I.T. ACT. IN ANY CASE, THE ESTABLISHED PRINCIPLE IS THAT AS PER THE PROCESS OF ASSESSMENT A CORRECT INCOME IS TO BE DETERMINED AND A JUSTIFIED TAX LIABILITY IS TO BE IMPOSED ON THE ASSESSEE. SINCE IT WAS AN UNDISPUTED POSITION OF LAW THAT THE SALES TAX INCENTIVE WAS NOT EXIGIBLE TO INCOME - TAX, THEREFORE, THE ASSESSING OFFICER WAS EXPEC TED TO ALLOW THE SAME. ACCORDING TO HIM, EVEN CBDT CIRCULAR DATED 01 - 04 - 1955 HAS MAND ATED THAT ONLY A LEGITIMATE TAX IS TO BE LEVIED ON THE ASSESSEE. HE HAS DRAWN OUR ATTENTION ON FEW EVIDENCES VIZ., ELIGIBILITY CERTIFICATE FOR SALES - TAX INCENTIVE UNDER PSI - 93 ISSUED BY THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, AMRAVATI AND ELIGIB ILITY CERTIFICATE FOR SALES TAX INCENTIVE BY WAY OF EXEMPTION, IN RESPECT OF WIND FARM PROJECT UNDER POWER GENERATION PROMOTION POLICY OF GOVERNMENT OF MAHARASHTRA ISSUED BY GENERAL MANAGER, POWER GENERATION. LEARNED A.R. HAS ALSO DRAWN OUR ATTENTION ON A CERTIFICATE ISSUED BY DY. COMMISSIONER OF SALES TAX (INCENTIVES AND ENFORCEMENT), MAHARASHTRA STATE, MUMBAI DATED 17 TH JULY, 2003 FOR ENTITLEMENT TO 9 ITA NOS. 1 18 TO 1 24/NAG/2013 AVAIL THE EXEMPTION OF THE SALES TAX INCENTIVE IN RESPECT OF SALES - TAX LIABILITY. FINALLY HE HAS CONC LUDED HIS ARGUMENT THAT THE ASSESSEE IS TECHNICALLY ENTITLED TO CLAIM THE IMPUGNED DEDUCTION AS CAPITAL RECEIPT DURING REASSESSMENT PROCEEDINGS STARTED UNDER SECTION 153A OF I.T. ACT AND SECONDLY, ON MERITS , THE ISSUE OF CAPITAL RECEIPT O F SALES TAX INCEN TIVE WAS COVERED BY SEVERAL PRECEDENTS. 7. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE, LEARNED D.R., MR. NARENDRA KANE HAS VEHEMENTLY OBJECTED THE CLAIM OF THE ASSESSEE BY SUPPORTING THE ORDERS OF ASSESSING OFFICER AND LEARNED CIT(APPEALS). HE HAS ALSO RAISED A TECHNICAL ISSUE THAT THE ASSESSEE WAS NOT SURE TO TREAT THE SALES TAX INCENTIVE AS A REVENUE RECEIPT OR A CAPITAL RECEIPT. WHEN THE ORIGINAL RETURN WAS FILED , THE SALES TAX INCENTIVE WAS CREDITED IN THE PROFIT & LOSS ACCOUNT BY TREATING THE S AME AS REVENUE RECEIPT. LATER ON THE ASSESSEE HAS CHANGED ITS STAND AND NOW CLAIMING THE INCENTIVE AS A CAPITAL RECEIPT. HE HAS ALSO ARGUED THAT AS AN ALTERNATE, THE MERITS OF THE CASE CAN BE DECIDED AFRESH BY THE ASSESSING OFFICER TO EXAMINE THE NATURE O F RECEIPT IN THE LIGHT OF SCHEME OF GOVERNMENT OF MAHARASHTRA. 8. IN THE REJOINDER, LEARNED A.R. HAS STRONGLY OBJECTED THE PROPOSAL OF SENDING THE ISSUE BACK TO THE STAGE OF ASSESSING OFFICER ON THE GROUND THAT ALL THE RELEVANT DETAILS AS WELL AS THE FACTS OF THE SALES TAX INCENTIVE WERE VERY MUCH BEFORE THE ASSESSING OFFICER WHICH WERE DULY CHECKED BY THE ASSESSING OFFICER AS IS APPARENT FROM THE BODY OF THE ASSESSMENT ORDER ITSELF. RATHER THE LEARNED A.R. HAS ANNOUNCED THAT HE CAN MAKE A STATEMENT AT BAR THAT THE MERITS OF THE CLAIM OF EXEMPTION OF THE SALES - TAX INCENTIVE WAS DULY SCRUTINIZED BY THE ASSESSING OFFICER AND INSTEAD OF GRANTING THE EXEMPTION HE HAS RAISED A TECHNICAL ISSUE. OTHERWISE THE ASSESSING OFFICER COULD HAVE DISALLOWED THE EXEMPTION HA D THE EXEMPTION WAS NOT PERMISSIBLE UNDER LAW. ONCE THE ASSESSING OFFICER WAS SATISFIED THAT THE CLAIM OF EXEMPTION WAS OTHERWISE PERMISSIBLE UNDER LAW, THEN ONLY HE HAS RAISED A 10 ITA NOS. 1 18 TO 1 24/NAG/2013 TECHNICAL ISSUE TO DISALLOW UNDER THE PRETEXT OF THE APPLICABILITY OF THE PRO VISIONS OF SECTION 153A, THAT TOO WAS LEGALLY INCORRECT. 9. IN THE LIGHT OF THE ABOVE FACTUAL AND LEGAL DISCUSSION, WE HAVE HEARD BOTH THE SIDES AT LENGTH. ON CAREFUL EXAMINATION OF THE GROUNDS AS RAISED BEFORE US , WE HAVE NOTED THAT BASICALLY TWO SUBSTAN TIVE ISSUES HAVE BEEN RAISED BEFORE US. THE FIRST ONE IS THAT THE ASSESSING OFFICER HAS REJECTED THE CLAIM OF THE ASSESSEE IN RESPECT OF SALES - TAX SUBSIDY ON THE PRETEXT THAT THE PROCEEDING WAS STARTED UNDER SECTION 153A OF I.T. ACT, WHICH WAS A REVENUE BENEFICIAL ASSESSMENT, HENCE NEW CLAIM OF EXEMPTION COULD NOT BE ENTERTAINED AND THE ASSESSEE IS NOT ELIGIBLE TO RAISE A FRESH CLAIM OF EXEMPTION. THE SECOND ONE IS THAT IF A VIEW IS TAKEN THAT EVEN IF AN ASSESSMENT IS FRAMED UNDER SECTION 153A/143(3) THE ASSESSEE IS ELIGIBLE TO CLAIM A STATUTORY EXEMPTION, THEN UNDER SUCH CIRCUMSTANCES WHETHER THE ASSESSEE IS ENTITLED FOR THE SAID CLAIM IN RESPECT OF THE SALES - TAX INCENTIVE RECEIVED AND DULY CREDITED IN PROFIT & LOSS ACCOUNT. THEREFORE, THE FIRST STEP IS TO EXAMINE WHETHER THE IMPUGNED CLAIM CAN BE ENTERTAINED AND IF IT GOES IN FAVOUR OF THE ASSESSEE THEN THE NEXT STEP IS TO EXAMINE THE ELIGIBILITY OF THE CLAIM. 9.1 AS FAR AS THE BASIC FACTS ARE CONCERNED, THERE IS NO DISPUTE THAT AN ACTION UNDER SECTI ON 132(1) WAS TAKEN IN THE GROUP OF CASES AND IN CONSEQUENCE THEREUPON A STATUTORY NOTICE UNDER SECTION 153A(1)(A) WAS ISSUED. IN COMPLIANCE OF THE SAID NOTICE THE ASSESSEE HAS INTIMATED THE ASSESSING OFFICER TO CONSIDER ITS ORIGINAL RETURN FILED AS IF FUR NISHED IN COMPLIANCE OF THE NOTICE UNDER SECTION 153A OF I.T. ACT. IT MAY NOT BE OUT OF PLACE TO MENTION THAT THE ASSESSEE HAS FILED THE ORIGINAL RETURN OF INCOME UNDER SECTION 139 OF I.T. ACT DECLARING TOTAL INCOME OF ` .22,30,259/ - . THE SAME WAS ASSESSED AS PER THE IMPUGNED ASSESSMENT ORDER NOW BEFORE US. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSMENT WAS ORIGINALLY MADE 11 ITA NOS. 1 18 TO 1 24/NAG/2013 UNDER SECTION 143(1) DATED 7 TH FEBRUARY , 2004 (A.Y. 2003 - 04). AT THIS JUNCTURE IT IS ALSO WORTH TO MENTION THAT IN THE CASE OF THE ASS ESSEE FOR ASSESSMENT YEAR 2004 - 05 ORIGINALLY THE ASSESSMENT WAS MADE UNDER SECTION 143(3) DATED 22 - 12 - 2006. THE RETURN FOR THE SAID YEAR WAS FILED DECLARING AN INCOME OF ` .44,48,790/ - AND THE SAME WAS ASSESSED BY THE ASSESSING OFFICER. IN THE PAST THE ASSE SSEE WAS CLAIMING A DEDUCTION UNDER SECTION 80IB(3)(II) OF THE ACT. IN THE PAPER BOOK THE ASSESSEE HAS ALSO COMPUTED YEARWISE SALES - TAX INCENTIVE AVAILED BY THE ASSESSEE. FOR ASSESSMENT YEAR 2003 - 04 THE ASSESSEE HAS RECEIVED AN INCENTIVE IN RESPECT OF OIL REFINERY OF ` .74,15,531/ - . FOR ASSESSMENT YEAR 2004 - 05 THE SALES TAX INCENTIVE IN RESPECT OF OIL REFINERY WAS AT ` .33,96,658/ - AND IN RESPECT OF WIND POWER IT WAS ` .23,00,000/ - , TOTAL ` .56,96,658/ - . LIKEWISE IN REST OF THE YEARS, DETAILS IN RESPECT OF TH E SALES TAX INCENTIVE WAS FURNISHED. THIS IS ALSO NOT IN DISPUTE THAT IN THE RESPECTIVE YEARS THE ASSESSEE HAS CREDITED THE IMPUGNED AMOUNT OF SALES - TAX INCENTIVE IN THE PROFIT AND LOSS ACCOUNT. 10. IN THE LIGHT OF THE ABOVE FACTS, THE BASIC QUESTION WHICH WAS RAISED FROM THE SIDE OF THE REVENUE DEPARTMENT WAS THAT IN A SITUATION WHEN THE ASSESSEE HAS SUO MOTO DECLARED THE AMOUNT IN THE PROFIT AND LOSS ACCOUNT AND THE SAME WAS ACCEPTED BY THE REVENUE DEPARTMENT AS A PART OF THE REVENUE RECEIPT OF THE ASSESSEE FOR ALL THE YEARS INVOLVED, THEN HOW THE ASSESSEE CAN NOW CHANGE ITS STAND, SPECIALLY WHEN THE REASSESSMENT WAS TO BE FRAMED CONSEQUENCE UPON THE SEARCH OPERATION. 10.1 ON IDENTICAL SITUATION THE ITAT, MUMBAI BENCH IN THE CASE OF DCIT V/S . EVERSMILE CONSTRUCTION CO. P. LTD. BEARING ITA NO. 4238/MUM/2010 ORDER DATED 30 - 08 - 2011 HAS MADE AN OBSERVATION QUOTA A CLOSE LOOK AT THE ABOVE PROVISION MANIFESTS THAT THE ASSESSING OFFICER IS REQUIRED TO MAKE ASSESSMENT AFRESH AND 12 ITA NOS. 1 18 TO 1 24/NAG/2013 COMPUTE THE TOTA L INCOME IN RESPECT OF EACH OF THE RELEVANT SIX ASSESSMENT YEARS. AS THERE IS NO SPECIFIC INHIBITION ON THE JURISDICTION OF THE ASSESSING OFFICER IN NOT INCLUDING ANY NEW INCOME TO SUCH FRESH TOTAL INCOME PURSUANT TO SEARCH WHICH WAS NOT ADDED DURING THE ORIGINAL ASSESSMENT, IN THE LIKE MANNER, THERE IS NO RESTRICTION ON THE ASSESSEE TO CLAIM ANY DEDUCTION WHICH WAS NOT ALLOWED IN THE ORIGINAL ASSESSMENT. THE REQUIREMENT OF SECTION 153A IS TO COMPUTE THE TOTAL INCOME OF EACH OF SUCH ASSESSMENT YEARS. SUCH DETERMINATION OF THE TOTAL INCOME HAS TO BE DONE AFRESH WITHOUT ANY REFERENCE TO WHAT WAS DONE IN THE ORIGINAL ASSESSMENT. OF COURSE, THE AO IS ENTITLED TO MAKE ANY ADDITION IN THE FRESH ASSESSMENT, WHICH HE MADE IN THE ORIGINAL ASSESSMENT, PROVIDED HE IS SATISFIED WITH THE MERITS OF THE ADDITION. BUT MERE FACT THAT THERE WAS SOME ADDITION IN THE ORIGINAL ASSESSMENT, WOULD NOT PRECLUDE THE ASSESSEE FROM CONTESTING THE ADDITION IN THE SUBSEQUENT PROCEEDINGS. AS IT IS GOING TO BE A FRESH EXERCISE OF FRAMING ASSESSMENT OR REASSESSMENT OF THE TOTAL INCOME AT THE END OF THE AO , THE ASSESSEE CANNOT BE STOPPED FROM NOT EVEN ARGUING ABOUT THE MERITS OF HIS CASE QUA THE ADDITION WHICH WAS MADE IN THE ORIGINAL ASSESSMENT. DEBARRING THE ASSESSEE FROM MAKING A CLAIM A BOUT THE DEDUCTIBILITY OF ANY ITEM, WHICH WAS EARLIER DISALLOWED, COUNTERS THE VERY CONCEPT OF FRESH ASSESSMENT OF TOTAL INCOME UNQUOTE. 10.2 IT IS CORRECT THAT AN ASSESSMENT IN THE CASE OF A SEARCH UNDER SECTION 153A IS TO BE MADE ON THE TOTAL INCOME OF RESPECTIVE EACH SIX ASSESSMENT YEARS , IMMEDIATELY PRECEDING THE ASSESSMENT YEAR IN WHICH SEARCH IS CONDUCTED. SECTION 153A START S WITH A NON - OBSTA NTE CLAUSE AND PRESCRIBES THAT NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, 148 ETC., IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED THEN THE ASSESSING OFFICER SHALL ISSUE A NOTICE REQUIRING HIM TO FURNISH THE RETURN OF INCOME IN RESPECT OF SIX ASSESSMENT YEARS SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY 13 ITA NOS. 1 18 TO 1 24/NAG/2013 BE, APPLY ACCORDINGLY AS IF SUCH RETURNS WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 OF THE ACT. THE ASSESSING OFFICER IS ALSO EMPOWERED EITHER TO ASSESS OR REASSESS THE TOTAL INCOME SEPARATELY FOR SIX ASSESSMENT YEAR S. THIS LANGUAGE OF SECTION 153A WAS DULY ANALYZED BY RESPECTED COORDINATE BENCH, MUMBAI IN THE CASE OF M/S EVERSMILE CONSTRUCTION CO. (SUPRA). WE ARE ALSO OF THE VIEW THAT THE INTENTION OF SECTION 153A IS CLEAR THAT IRRESPECTIVE OF THE FACT THAT ORIGINAL RETURN COULD HAVE BEEN FILED BY THE ASSESSEE , B UT IF A RETURN IS FILED IN COMPLIANCE OF A NOTICE ISSUED CONSEQUENCE UPON THE SEARCH , THEN THE ASSESSEE IS EXPECTED TO FURNISH RELEVANT DETAILS AND ALSO ENTITLED TO SET FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIB ED UNDER THE PROVISIONS OF THE A CT. THE SECTION FURTHER STATES THAT SUCH A RETURN IS TO BE TREATED AS IF A RETURN REQUIRE D TO BE FURNISHED UNDER SECTION 139 OF I.T. ACT. MEANING THEREBY THAT THE ASSESSMENT PROCEEDINGS UNDER SECTION 153A ARE REQUIRED TO BE STARTED WITH THE FILING OF THE RETURN WHICH WAS DEEMED TO HAVE FILED UNDER SECTION 139 OF THE I.T. ACT. THE STATUTE HAS NO T PROVIDED ANY RESTRICTION OR CIRCUMCISED THE PROCEEDINGS UNDER SECTION 153A, BUT MADE IT CLEAR THAT THE ASSESSMENT IS TO BE FRAMED AS IT IS FRAMED GENERALLY UNDER THE NORMAL PROVISIONS OF THE ACT WITHOUT IMPOSING ANY FETTERS . IF IT IS SO THEN NATURALL Y AN ASSESSEE HAS OPTIONS, ONE IS TO FILE CORRECT STATEMENT OF INCOME AND IF ANY INFORMATION WAS LEFT OUT EARLIER THEN THE SAID OMISSION OR MISTAKE COULD BE RECTIFIED. SINCE AS PER THE LANGUAGE OF SECTION 153A THE PROCESS OF ASSESSMENT IS STARTED WITH THE FILING OF THE RETURN , AS IT HAPPENS IN THE COURSE OF NORMAL ASSESSMENT, THEN THE SECOND OPTION IS ALSO AVAILABLE TO A TAX PAYER TO PLACE ANY CLAIM OR INFORMATION BEFORE THE ASSESSING OFFICER DURING THE COURSE OF SUCH ASSESSMENT PROCEEDINGS. THEREFORE, EVE N UNDER SECTION 153A THE ASSESSING OFFICER IS NOT SUPPOSED TO STOP THE ASSESSEE FROM CLAIMING A FRESH REBATE. THERE IS NO SUCH INDICATION UNDER THE PROVISIONS OF SECTION 153A THROUGH WHICH IT COULD BE ADJUDGED THAT THE ASSESSEE WAS PRECLUDED FROM NOT CLAI MING ANY FRESH REBATE. 14 ITA NOS. 1 18 TO 1 24/NAG/2013 RATHER THE RESPECTED MUMBAI BENCH HAS OPINED THAT THE ASSESSEE COULD NOT BE STOPPED FROM CLAIMING A FRESH DEDUCTION , BUT EVEN THE ASSESSEE IS ALSO NOT STOPPED FOR ARGUING THE MATTER ON MERITS. IN THIS CITED DECISION A CONCLUSION WAS DRAWN THAT EVEN ANY DEDUCTION IS CLAIMED BY THE ASSESSEE IN THE PROCEEDINGS UNDER SECTION 153A, THAT COULD NOT BE REJECTED SIMPLY ON THE GROUND THAT IT WAS NOT CLAIMED IN THE ORIGINAL ASSESSMENT. THE TRIBUNAL HAS ALSO OPINED AS UNDER : IF ANY DEDUCTION IS CLAIMED BY THE ASSESSEE IN THE PROCEEDINGS U/S 153A, THAT CANNOT BE REJECTED SIMPLY ON THE GROUND THAT IT WAS NOT CLAIMED IN THE ORIGINAL ASSESSMENT OR WAS DISALLOWED. THE STARTING POINT OF ASSESSMENT IS THE AMOUNT OF INCOME DECLARED IN THE RETURN OF INCOME, WHICH IS FURTHER ENHANCED WITH THE ADDITIONS. WE ARE UNABLE TO APPRECIATE THE QUALITATIVE DIFFERENCE BETWEEN THE TWO SITUATIONS VIZ., THE FIRST IN WHICH THE ASSESSEE FILES RETURN IN RESPONSE TO N OTICE U/S 153A DISCLOSING LOWER INCOME THAN THE ONE ORIGINALLY ASSESSED U/S 143(3) AND THE SECOND SITUATION IN WHICH THE INCOME IS DISCLOSED AT THE INCREASED LEVEL, THAT IS, AFTER CONSIDERING THE ADDITIONS SO MADE IN THE ORIGINAL ASSESSMENT AND THEN A GITATES DURING THE ASSESSMENT PROCEEDINGS ABOUT THE DEDUCTIBILITY OF THE AMOUNT(S) WHICH WAS/WERE NOT ALLOWED EARLIER. PROBABLY THE SECOND COURSE IS ADOPTED SO AS TO PREEMPT ANY MOVE ON THE PART OF THE REVENUE TO IMPOSE CONCEALMENT PENALTY, IF THE ADDI TION IS SUSTAINED IN THE ASSESSMENT U/S 153A. IN OUR CONSIDERED OPINION WHEN THE ASSESSING OFFICER HAS TO COMPUTE THE TOTAL INCOME OF THE ASSESSEE ON THE BASIS OF RETURN FILED AFTER CONSIDERING THE SUBMISSIONS MADE DURING THE COURSE OF HEARING BEFORE H IM. THERE CANNOT BE ANY SCOPE FOR ARGUING THAT THE ASSESSEE HAS BEEN RENDERED POWERLESS TO EVEN LODGE A CLAIM IN RESPECT OF WHICH DEDUCTION WAS NOT ALLOWED EARLIER. HERE IT IS IMPORTANT TO NOTE THAT THE TOTAL INCOME IS NOT REDUCED SIMPLY ON THE BASIS O F MAKING A CLAIM. THE ASSESSING OFFICER IS FULLY EMPOWERED TO CONSIDER THE QUESTION OF DEDUCTIBILITY AS PER THE PROVISIONS OF THE ACT. IF AFTER GOING THROUGH SUCH CLAIM, HE FEELS THAT ADDITION IS CALLED FOR, HE WILL OBVIOUSLY MAKE ADDITION AND VICE VERS A. 10.3 WHILE DECIDING THIS CONTROVERSY, THE ITAT, PUNE BENCH IN THE CASE OF SANJAY NANDLAL VYAS V/S. ITO IN ITA NOS. 771 TO 774/PN/2010 VIDE ORDER DATED 23 - 12 - 2011 HAS FOLLOWED THE ABOVE CITED DECISION OF ITAT, MUMBAI. THE PUNE 15 ITA NOS. 1 18 TO 1 24/NAG/2013 BENCH HAS ALSO ME NTIONED THAT AS PER THE OLD PROVISIONS OF CHAPTER XIV - B A TAX PAYER WAS REQUIRED TO FILE THE RETURN OF UNDISCLOSED INCOME AS A RESULT OF SEARCH WHEREAS SECTION 153A REQUIRES TO DISCLOSE THE TOTAL INCOME. THE RELEVANT OBSERVATION IS REPRODUCED BELOW: WE FIND THAT IN THE ABOVE DISCUSSION AFTER DISCUSSING THE ISSUE IN DETAIL, THE MUMBAI BENCH HAS COME TO THE CONCLUSION THAT THERE IS DIFFERENCE IN WORDINGS U/S 158B(B) AND SECTION 153A OF THE ACT. PROVISIONS U/S 153A ARE SUCCESSOR OF SPECIAL PROCEDUR E FOR ASSESSMENT OF SEARCH CASES UNDER CHAPTER XIV B STARTING WITH SECTION 158B. CHAPTER XIV - B REQUIRED THE ASSESSMENT OF UNDISCLOSED INCOME AS A RESULT OF SEARCH, WHICH HAS BEEN DEFINED IN SECTION 158B(B) WHEREAS SECTION 153A DEALING WITH ASSESSMENT IN CASE OF SEARCH W.E.F. 1.6.2003 REQUIRES THE A.O. TO DETERMINE TOTAL INCOME AND NOT UNDISCLOSED INCOME UNDER THESE BACKGROUND, THE BOMBAY BENCH OF THE TRIBUNAL HAS HELD THAT WHEN THE A.O. HAS TO COMPUTE THE TOTAL INCOME OF THE ASSESSEE ON THE BA SIS OF RETURN FILED AFTER CONSIDERING THE SUBMISSIONS MADE DURING THE COURSE OF HEARING BEFORE HIM, THERE CANNOT BE ANY SCOPE FOR ARGUING THAT THE ASSESSEE HAS BEEN RENDERED POWERLESS TO EVEN LODGE A CLAIM IN RESPECT OF WHICH DEDUCTION WAS NOT ALLOWED E ARLIER. THE A.O. IS FULLY EMPOWERED TO CONSIDER THE QUESTION OF DEDUCTIBILITY AS PER THE PROVISION OF THE ACT. IF AFTER GOING THROUGH SUCH CLAIM, HE FEELS THAT ADDITION IS CALLED FOR, HE WILL OBVIOUSLY MADE ADDITION, AND VICE VERSA, HELD THE TRIBUNAL. IT HAS ALSO BEEN RECORDED BY THE PUNE TRIBUNAL THAT AS FAR AS A REASSESSMENT UNDER SECTION 147 IS CONCERNED, ONLY ESCAPED INCOME IS TO BE ASSESSED, WHEREAS UNDER SECTION 153A IT IS PERMITTED BY THE STATUTE TO PASS A FRESH ASSESSMENT ON THE BASIS OF THE RE TURN FILED BY THE ASSESSEE. 10.4 OUR ATTENTION HAS BEEN DRAWN ON A VERY OLD CBDT CIRCULAR NO. 0 14 (XL - 35) DATED 11 TH APRIL, 1955 IN SUPPORT OF THE ARGUMENT THAT THE REVENUE OFFICER IS DUTY BOUND TO ASSESS THE CORRECT INCOME AND IF A TAX PAYER IS UNAWARE OF LAW THEN THE ASSESSING OFFICER SHOULD TAKE INITIATIVE IN GUIDING A TAX PAYER. THEREFORE, THE ARGUMENT BEFORE US IS THAT ONLY A CORRECT AND JUST INCOME IS REQUIRED TO BE ASSESSED 16 ITA NOS. 1 18 TO 1 24/NAG/2013 IN THE HANDS OF THE ASSESSEE BY THE ASSESSING OFFICER. INDEED THE TRUE INTENT OF THE STATUTE IS THAT AN ASSESSEE IS NOT TO BE PLACED IN A DIS - ADVANTAGEOUS POSITION BECAUSE OF A TECHNICAL REAS ON. THE STATUTE DO NOT PRESCRIBE TO TAKE AWAY A LEGAL RIGHT OF TAX PAYER. EVEN THE LAW AS PRONOUNCED BY SEVERAL HONBLE COURTS IS THAT ACQUIESCENCE TO I LLEGAL TAX FOR LONG TIME IS NOT A GROUND FOR DENYING THE RELIEF TO A TAX PAYER IF HE IS LEGALLY ENTITLE D FOR THE SAME. THE HONBLE COURTS HAVE, THEREFORE, GUIDED THE TAX AUTHORITIES THAT THEY ARE UNDER OBLIGATION TO ACT IN ACCORDANCE WITH LAW AND TAX IS TO BE COLLECTED STRICTLY AS PROVIDED UNDER THE ACT. BECAUSE OF ANY MISCONCEPTION ON THE PART OF AN ASSE SSEE HE CANNOT BE OVER ASSESSED. RATHER THE AOS ARE ADVISED NOT TO RAISE TECHNICAL PLEAS IF A CITIZEN HAVE A LAWFUL RIGHT. A PRIVATE LITIGANT MAY ADOPT SUCH RECOURSE TO PROTECT HIS PERSONAL RIGHTS BUT STATE AUTHORITIES ARE NOT EXPECT TO DENY A LAWFUL CLAI M MERELY ON TECHNICAL GROUNDS. WE HAVE ALSO COME ACROSS A DECISION OF HONBLE SUPREME COURT PRONOUNCED IN THE CASE OF CIT V/S. SHELLY PRODUCTS 261 ITR 367 WHEREIN IT WAS OBSERVED THAT QUOTE SIMILARLY, IF HE HAS BY MISTAKE OR INADVERTENCE OR ON ACCOUNT OF IGNORANCE, INCLUDED IN HIS INCOME ANY AMOUNT WHICH IS EXEMPTED FROM PAYMENT OF INCOME - TAX, OR IS NOT INCOME WITHIN THE CONTEMPLATION OF LAW, HE MAY LIKEWISE BRING THIS TO THE NOTICE OF THE ASSESSING AUTHORITY, WHICH IF SATISFIED, MAY GRANT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS, IF ANY. UNQUOTE. FOLLOWING THIS LEGAL PROPOSITION AS LAID DOWN BY THE HONBLE COURT , WE FIND FORCE IN THIS ARGUMENT OF THE ASSESSEE. 10.5 FROM THE SIDE OF THE REVENUE A VEHEMENT ARGUMENT HAS BEEN RAISED THAT IN THE CASE OF SUN ENGINEERING WORKS 198 ITR 297 (SC) IT WAS HELD THAT IN A REASSESSMENT PROCEEDINGS IT IS NOT OPEN TO THE ASSESSEE TO P RESS FOR A REVIEW ALL THE CONCLUDED ITEMS UNCONNECTED WITH ESCAPEMENT OF INCOME. THIS ASPECT HAS ALSO BEEN CONSIDERED BY THE ITAT, MUMBAI IN THE CASE OF M/S EVERSMILE CONSTRUCTION (SUPRA) AND HELD, RIGHTLY SO, THAT THE HONBLE SUPREME COURT WAS CONSIDERING THE 17 ITA NOS. 1 18 TO 1 24/NAG/2013 PROVISIONS OF SECTION 147 OF I.T. ACT. IN THAT CONTEXT THE HONBLE COURT HAS EXPRESSED THAT ONCE AN ASSESSMENT IS VALIDLY REOPENED, IT IS NOT OPEN TO AN ASSESSEE TO SEEK A REVIEW OF THE CONCLUDED ITEMS. THE TRIBUNAL HAS SAID THAT IT IS NOT PERTINENT TO NO TE THAT THE CONDITIONS FOR TAKING ACTION ARE ALTOGETHER DIFFERENT THAN THE CONDITIONS UNDER WHICH THE PROVISIONS OF SECTION 153A ARE TO BE APPLIED. THE DISTINCTION DRAWN BY MUMBAI TRIBUNAL IS WORTH REPRODUCTION : THE RELIANCE OF THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V/S. SUN ENGINEERING WORKS PVT. LTD. (1992) 198 ITR 297 (SC) IS MISCONCEIVED. THE REASON FOR THE SAME IS THAT IN THAT CASE THE HONBL E SUPREME COURT WAS CONSIDERING THE PROVISIONS OF SECTION 147 AND IT WAS HELD THAT ONCE AN ASSESSMENT IS VALIDLY REOPENED IT IS NOT OPEN TO AN ASSESSEE TO SEEK A REVIEW OF CONCLUDED ITEMS UNCONNECTED WITH THE ESCAPEMENT OF INCOME. HERE IT IS PERTINENT TO NOTE THAT THE CONDITIONS FOR TAKING ACTION U/S 147 VIS - - VIS UNDER SECTION 153A ARE ALTOGETHER DIFFERENT. EVEN THOUGH ASSESSMENT U/S 147 IS MADE READ WITH SECTION 143(3), BUT THE INITIATION OF ASSESSMENT OR REASSESSMENT U/S 147 ORIGINATES FROM THE BELIEF OF THE AO , ON THE BASIS OF SOME TANGIBLE MATERIAL, THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. AFTER FORMING SUCH BELIEF, THE AO IS CALLED UPON TO RECORD REASONS FOR THE REOPENING OF THE ASSESSMENT BEFORE ISSUING MANDATORY NOTICE U/S 148. IF THE FOUNDATION OF REASSESSMENT, BEING THE REASONS ABOUT THE ESCAPEMENT OF SOME INCOME DO NOT EXIST, THEN IT IS IMPERMISSIBLE TO GO AHEAD WITH THE ASSESSMENT U/S 147. IT IS SINE QUA NON THAT SOME ESCAPED INCOME MUST BE BROUGHT TO CHARGE I N ORDER TO MAKE A FRESH ASSESSMENT U/S 147. ON THE CONTRARY, THE SEARCH ACTION ITSELF MANDATES ON THE ASSESSING OFFICER TO PASS ORDERS U/S 153A COMPUTING TOTAL INCOME FOR ALL THE RELEVANT SIX ASSESSMENT YEARS, IRRESPECTIVE OF THE FACT WHETHER SOME CON CEALED INCOME HAS SURFACED AS A RESULT OF SEARCH OR NOT. IT IS THUS APPARENT THAT THE AMBIT OF ASSESSMENT U/S 147 CANNOT BE IMPORTED INTO THE SCOPE OF SECTION 153A. 10.6 EVEN THE DECISION OF GOETZE INDIA LTD. 284 ITR 323 (SC) SHOULD NOT BE APPLIED IN THE CONTEXT OF THE ISSUE IN HAND, AS RELIANCE PLACED FROM THE SIDE OF THE REVENUE, BECAUSE IT WAS MADE CLEAR BY THE HONBLE SUPREME COURT THAT THE ISSUE 18 ITA NOS. 1 18 TO 1 24/NAG/2013 AS SETTLED IN THAT APPEAL WAS LIMITED TO THE POWER OF THE ASSESSING OFFICER AND DOES NOT IMPINGE ON TH E POWER OF INCOME TAX APPELLATE TRIBUNAL UNDER SECTION 254 OF I.T. ACT. RATHER IN THE CASE OF NTPC 229 ITR 383 (SC) HAS HELD THAT THE TRIBUNAL HAS THE JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH ARISES FROM THE FACTS AVAILABLE ON RECORD. IN VIEW OF TH E REASONS AS RECORDED HEREIN ABOVE, WE ARE OF THE CONSCIENTIOUS VIEW THAT THESE DECISIONS AS CITED FROM THE SIDE OF THE REVENUE ARE NOT CONNECTED WITH THE TECHNICAL ISSUE AS RAISED BEFORE US. THUS WE HEREBY CONCLUDE THAT ALTHOUGH THE ASSESSMENT WAS MADE U NDER SECTION 153A BUT THE ASSESSING OFFICER WENT WRONG IN NOT ENTERTAINING A CLAIM OF THE ASSESSEE BY ASSIGNING TECHNICAL REASONS. THE VIEW TAKEN BY THE LOWER AUTHORITIES IN THIS REGARD IS, THEREFORE, REVERSED AND CONNECTED GROUND NO. 1 IS ALLOWED. 11. O NCE WE HAVE TAKEN A VIEW THAT A LEGALLY ADMISSIBLE CLAIM COULD BE ENTERTAINED WHILE FRAMING THE ASSESSMENT UNDER SECTION 153A, HENCE AFTER CROSSING THIS BR IDGE NOW WE HAVE TO EXAMINE THAT WHETHER THE CLAIM OF CAPITAL RECEIPT OF SALE - TAX INCENTIVE IS ELIG IBLE UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 12. FROM THE SIDE OF THE ASSESSEE, LEARNED A.R. HAS INFORMED AT THE OUTSET THAT THE RELEVANT DETAILS WERE DULY FURNISHED BEFORE THE ASSESSING OFFICER AND APPARENTLY HE HAD NOT EXPRESSED ANY DISAGREEMENT ABOUT THE ELIGIBILITY OF THE CLAIM. THE ASSESSING OFFICER HAS NOT EXPRESSED IN THE ASSESSMENT ORDER THAT THE EXEMPTION OF SALES TAX INCENTIVE WAS NOT TO BE GRANTED ON BOTH THE GROUNDS THAT IT IS NOT TO BE CLAIMED UNDER SECTION 153A PROCEEDINGS, AS WELL AS , ON THE OTHER REASON THAT THE SCHEME UNDER WHICH SALES - TAX INCENTIVE WAS RECEIVED WAS NOT ELIGIBLE TO HOLD AS CAPITAL RECEIPT. THE ASSESSING OFFICER HAS NOT QUESTIONED THE ELIGIBILITY OF THE SALES TAX INCENTIVES BUT ONLY QUESTIONED THE ADMISSIBILITY OF A FRESH CLAIM UNDER SECTION 153A. ACCORDING TO THE LEARNED A.R. THE REQUISITE DETAILS IN CONNECTION WITH THE SCHEME UNDER WHICH THE SALES TAX INCENTIVE WAS RECEIVED BY 19 ITA NOS. 1 18 TO 1 24/NAG/2013 THE ASSESSEE HAVE BEEN FURNISHED AND PRIMA FACIE NO DOUBT HAD BEEN RAISED BY THE ASSESSING OFFICER. 12.1 AGAIN BEFORE US THE ASSESSEE HAS FURNISHED IN THE PAPER BOOK THE PACKAGE SCHEME OF INCENTIVE 1993. WE HAVE BEEN INFORMED THAT THIS SCHEME WAS RENEWED TIME AND AGAIN ON THOSE VERY TERMS AND CONDITIONS UNDER WHICH IT WAS FIRST PROMULGATED . AS PER THE PREAMBLE IN ORDER TO ACHIEVE DISPERSAL OF INDUSTRIES OUTSIDE BOMBAY - THANE - PUNE BELT AND ALSO TO ATTRACT DEVELOPMENT IN THOSE UNDER - DEVELOPED AREAS THE GOVERNMENT OF MAHARASHTRA HAS PRONOUNCED A PACKAGE OF INCENTIVES FOR EXPANSION AS WELL AS ES TABLISHING NEW UNITS. THE IMPLEMENTING AGENCIES FOR THE PURPOSE OF IMPLEMENTATION OF THE SAID SCHEME WERE SMALL SCALE INDUSTRIES, MEDIUM SCALE INDUSTRIES ETC. ELIGIBILITY CERTIFICATE WAS REQUIRED TO BE ISSUED BY THE IMPLEMENTING AGENCY AFTER COMMENCEMENT O F COMMERCIAL PRODUCTION. UNDER THE SCHEME, THE NEXT STEP WAS THAT THE COMMISSIONER OF SALES TAX WILL ENDORSE THE ELIGIBILITY CERTIFICATE ISSUED BY THE IMPLEMENTING AGENCY AND SHALL SPECIFY THE DATE OF EFFECT OF ELIGIBILITY FOR THE SALES TAX INCENTIVE. T HE INCENTIVE WAS IN THE NATURE OF SPECIAL CAPITAL INCENTIVE FOR SSI UNITS. THE SCHEM E HAS ALSO PRESCRIBE THE QUANTUM OF THE SALES - TAX INCENTIVE. THE SCHEM E HAS DEFINED FIXED CAPITAL INVESTMENT WHICH HAD FEW CATEGORIES SUCH AS NEW FIXED ASSETS, SHIFTIN G OF FIXED ASSETS OR ACQUISITION OF SECOND - HAND FIXED ASSETS. THE SALES TAX INCENTIVE IS ADMISSIBLE TO NEW/PIONEER UNITS AND A UNIT IS ENTITLED TO EXEMPTION FROM PAYMENT OF PURCHASE TAX ON PURCHASE OF RAW MATERIAL AND SALES TAX PAYABLE BY ELIGIBILITY UNIT S TO ITS VENDORS ON ITS PURCHASE OF RAW MATERIAL AND SALES TAX ON FINISHED PRODUCTS. THE QUANTUM ADMISSIBLE IS ALSO SUBJECT TO CERTAIN CEILINGS PRESCRIBED THEREIN. 20 ITA NOS. 1 18 TO 1 24/NAG/2013 12.2 THIS VERY SCHEME OF GOVERNMENT OF MAHARASHTRA WAS DULY CONSIDERED BY SPECIAL BENCH OF I TAT, MUMBAI IN THE CASE OF RELIANCE INDUSTRIES LTD. 88 ITD 273 (MUM) (SB), RELEVANT PORTION REPRODUCED : THE SCHEME FRAMED BY THE GOVERNMENT OF MAHARASHTRA IN 1979 AND FORMULATED BY ITS RESOLUTION DATED 5 - 1 - 1980 HAD BEEN ANALYSED IN DETAIL BY THE TRIBU NAL IN ITS ORDER IN THE ASSESSEES CASE FOR THE EARLIER ASSESSMENT YEAR I.E., 1985 - 86. ON AN ANALYSIS OF THE SCHEME, THE TRIBUNAL HAD COME TO THE CONCLUSION THAT THE THRUST OF THE SCHEME WAS THAT THE ASSESSEE WOULD BECOME ENTITLED FOR THE SALES TAX INC ENTIVE EVEN BEFORE THE COMMENCEMENT OF THE PRODUCTION, WHICH IMPLIED THAT THE OBJECT OF THE INCENTIVE WAS TO FUND A PART OF THE COST OF THE SETTING UP OF THE FACTORY IN THE NOTIFIED BACKWARD AREA. THE TRIBUNAL HAD AT MORE THAN ONE PLACE STATED THAT THE THRUST OF THE MAHARASHTRA SCHEME WAS THE INDUSTRIAL DEVELOPMENT OF THE BACKWARD DISTRICTS AS WELL AS GENERATION OF EMPLOYMENT THUS, ESTABLISHING A DIRECT NEXUS WITH THE INVESTMENT IN FIXED CAPITAL ASSETS. IT HAD BEEN FOUND THAT THE ENTITLEMENT OF THE INDUSTRIAL UNIT TO CLAIM ELIGIBILITY FOR THE INCENTIVE AROSE EVEN WHILE THE INDUSTRY WAS IN THE PROCESS OF BEING SET UP. ACCORDING TO THE TRIBUNAL, THE SCHEME WAS ORIENTED TOWARDS AND WAS SUBSERVIEN T TO THE INVESTMENT IN FIXED CAPITAL ASSETS. THE SALES TAX INCENTIVE WAS ENVISAGED ONLY AS AN ALTERNATIVE TO THE CASH DISBURSEMENT AND BY ITS VERY NATURE WAS TO BE AVAILABLE ONLY AFTER PRODUCTION COMMENCED. THUS, IN EFFECT, IT WAS HELD BY THE TRIBUNAL THAT THE SUBSIDY IN THE FORM OF SALES TAX INCENTIVE WAS NOT GIVEN TO THE ASSESSEE FOR ASSESSING IT IN CARRYING OUT THE BUSINESS OPERATIONS. THE OBJECT OF THE SUBSIDY WAS TO ENCOURAGE THE SETTING UP OF INDUSTRIES IN THE BACKWARD AREA . - - -- - - - - - - - - - - - - - - -- - THE TRIBUNAL WAS, THUS, AWARE OF THE DISTINCTION BETWEEN THE SUBSIDY GIVEN WITH THE OBJECT OF SETTING UP THE INDUSTRY AND THE SUBSIDY GIVEN AFTER THE INDUSTRY COMMENCES PRODUCTION AND CONDITIONAL UPON THE COMMENCEMENT OF PRODUCTION. FACTUALLY, THE TRIBUNAL FOUND THAT THE ASSESSEES CASE WHICH FELL UNDER THE MAHARASHTRA SCHEME WAS A CASE WHERE THE SUBSIDY WAS GIVEN FOR THE PURPOSE OF FACILITATING THE ASSESSEE TO SET UP AN INDUSTRY IN PATALGANGA, RAIGAD DISTRICT, WHICH WA S A NOTIFIED AREA. THE ACTUAL DISBURSEMENT TOOK PLACE AFTER THE ASSESSEE COMMENCED PRODUCTION, BUT ACCORDING TO THE TRIBUNAL , IT WAS ONLY A MODE OF DISBURSEMENT AND HAD NOTHING TO DO WITH THE OBJECT FOR WHICH THE SUBSIDY WAS GIVEN. THUS, IT WAS FOUND TH AT THE TRIBUNAL 21 ITA NOS. 1 18 TO 1 24/NAG/2013 DID NOT NOTICE THE CRUCIAL OBSERVATIONS OF THE SUPREME COURT IN SAHNEY STEEL & PRESS WORKS LTD,S CASE (SUPRA) WHICH GAVE PRIMACY TO THE OBJECT OF THE SUBSIDY OVER THE FACT THAT IT WAS GIVEN AFTER THE COMMENCEMENT OF PRODUCTION. 12.3 FINALLY IT WAS HELD THAT THE ASSESSEE WAS JUSTIFIED IN ITS CLAIM THAT THE SALES - TAX INCENTIVES RECEIVED IN TERMS OF THE GOVERNMENT SCHEME CONSTITUTED THE CAPITAL RECEIPT AND THEREFORE, NOT TO BE TAKEN INTO ACCOUNT IN COMPUTATION OF TOTAL INCOME. SINCE A VIEW HAS BEEN TAKEN IN RESPECT OF THIS VERY SCHEME BY THE RESPECTED SPECIAL BENCH THEN WE HAVE NO REASON TO TAKE ANY OTHER VIEW BUT TO FOLLOW THE VIEW ALREADY EXPRESSED IN THIS PRECEDENT. 13. FURTHER WE HAVE BEEN INFORMED THAT ALMOST IN IDENTICAL SITUATION, THE ITAT, DELHI BENCH IN THE CASE OF INDO RAMA SYNTHETICS 33 CCH 526 WHEREIN ONE OF US I.E. LEARNED ACCOUNTANT MEMBER IS THE PARTY, HAS GIVEN A VERDICT THAT THE INCENTIVE GIVEN FOR DEVELOPMENT OF BACKWARD AREA BY ESTABLISHING NEW INDUSTRIES WOUL D BE IN THE NATURE OF CAPITAL RECEIPT NOT LIABLE TO TAX. THE NOTIONAL AMOUNT OF SALES TAX SUBSIDY WAS HELD AS CAPITAL RECEIPT NOT CHARGEABLE TO TAX. 14. IN RESPECT OF SUBSIDY IN THE SHAPE OF ENTERTAINMENT DUTY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF C HAPHALKAR BROTHERS, ORDER DATED 8 TH JUNE, 2011 HAS OPINED THAT THE OBJECT OF THE SUBSIDY WAS TO PROMOTE CONSTRUCTION OF MULTIPLEX THEATRE COMPLEXES. SUCH RECEIPT OF SUBSIDY WAS HELD ON CAPITAL ACCOUNT. IN THIS DECISION , THE DECISION OF PONNI SUGARS & CH EMICALS 306 ITR 392 (SC) AND THE DECISION OF SAHN E Y STEEL AND PRESS WORKS LTD. 228 ITR 253 (SC) HAS BEEN DISCUSSED. IT WAS OPINED THAT THE TEST IS THAT THE COLLECTOR OF THE RECEIPT IN THE HANDS OF THE ASSESSEE HAS TO BE DETERMINED WITH RESPECT TO THE PURP OSE FOR WHICH THE SUBSIDY WAS GRANTED. LIKEWISE IN THE CASE OF CIT V/S. KIRLOSKAR OIL ENGINES 364 ITR 88 (BOM.) THE SAID TWO DECISIONS, NAMELY, SAHN E Y STEEL AND PRESS WORKS 22 ITA NOS. 1 18 TO 1 24/NAG/2013 (SUPRA) AND PONNI SUGARA AND CHEMICALS (SUPRA) HAVE BEEN DISCUSSED AND COMMENTED TH AT THE SUPREME COURT HAD EMPHASIZED THAT COLLECTOR OF RECEIPT IN THE HANDS OF THE ASSESSEE HAD TO BE DETERMINED WITH RESPECT TO PURPOSE FOR WHICH SUBSIDY WAS GIVEN. IF OBJECT OF SUBSIDY SCHEME WAS TO ENABLE THE ASSESSEE TO RUN BUSINESS MORE PROFITABILITY , THEN RECEIPT WAS TO BE CONSIDERED AS ON REVENUE ACCOUNT. BUT IF OBJECT OF ASSISTANCE UNDER SUBSIDY SCHEME WAS TO ENABLE THE ASSESSEE TO SET UP NEW UNIT, THEN RECEIPT OF SUBSIDY IS TO BE CONSIDERED ON CAPITAL ACCOUNT. IN THE SAID CASE IT WAS FOUND BY THE HONBLE BOMBAY HIGH COURT THAT UNDER THE INCENTIVE PACKAGE OFFERED BY THE STATE GOVERNMENT WAS FOR THE PURPOSE OF SETTING UP A NEW INDUSTRY IN THE STATE. THE ASSESSEE HAD APPLIED FOR SUCH SPECIAL CAPITAL INCENTIVE FROM SICOM. AN OBSERVATION AS WELL AS THE FINAL CONCLUSION OF THE HONBLE COURT IS WORTH TO MENTION AS UNDER : WE ARE AFRAID THAT IF THE REVENUE PERSISTS WITH SUCH STAND AND AS HAS BEEN TURNED DOWN REPEATEDLY, THAT WOULD DEFEAT THE VERY OBJECT AND PURPOSE OF THE SCHEMES AND PACKAGES DEVISED BY THE STATES. THAT WOULD ALSO RESULT IN FRUSTRATING THE ENTREPRENEURS AND DEFEATING THE PURPOSE OF SETTING UP NEW INDUSTRIES AND PARTICULARLY IN BACKWARD AREAS. THE REVENUE, THEREFORE, SHOULD BEAR IN MIND THAT IN EVERY SUCH CASE AND WHENEVER THE FUNDS OR RECEIPTS ARE FROM THE SCHEMES AND PACKAGES DEVISED BY THE STATE, IT SHOULD NOTE THE OBJECT AND PURPOSE OF THE SAME. IF THAT IS OF THE NATURE SPECIFIED IN THE JUDGMENTS OF THIS COURT AND EQUALLY THAT OF THE HONOURABLE SUP REME COURT, THEN, THE REVENUE MUST ACT ACCORDINGLY. WE HOPE THAT THIS MUCH IS ENOUGH SO AS TO DISSUADE THE REVENUE FROM B RINGING SUCH MATTERS REPEATEDLY TO THIS COURT. ORDINARILY AND FOR WASTING JUDICIAL TIME AND WHICH IS PRECIOUS, WE WOULD HAVE IMPO SED HEAVY COSTS ON THE REVENUE WHILE DISMISSING THIS APPEAL, BUT WE REFRAIN FROM DOING SO BY GIVING LAST OPPORTUNITY TO THE REVENUE. THIS APPEAL DOES NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. IT IS DISMISSED. NO ORDER AS TO COST. 15. THUS UNDER THE TO TALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT CONSIDERING THE SCHEME OF THE STATE GOVERNMENT, THE ASSESSEE IS ENTITLED FOR THE EXEMPTION OF THE SALES - TAX INCENTIVE BEING A CAPITAL RECEIPT IN THE 23 ITA NOS. 1 18 TO 1 24/NAG/2013 HANDS OF THE ASSESSEE AND THAT T HE CLAIM BEING LAWFUL IN NATURE OUGHT TO HAVE BEEN ENTERTAINED BY THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT UNDER SECTION 153A OF I.T. ACT. THEREFORE, GROUND NOS. 2 AND 3 ARE HEREBY DECIDED IN FAVOUR OF THE ASSESSEE. 16. REST OF THE GROUNDS ARE CONSEQUENTIAL IN NATURE PERTAINING TO CHARGE OF INTEREST NEEDS NO ADJUDICATION PRESENTLY. 17. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF JULY, 2015. SD/ - SD/ - ( SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMB ER. JUDICIAL MEMBER NAGPUR, DATED: 31 ST JULY, 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, NAGPUR .