ITO, Bulandshahr V. Sri Vijendra Kumar, Bulandshahr

ITA 1202/DEL/2009

• Counselvise Citation: 120220114 RSA 2009
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 07-07-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 30-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DR B R R KUMAR
• Keywords: Capital asset; Gift; Period of limitation; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings; Borrowed satisfaction; Set aside
• Section: 133A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I NEW DELHI DELHI BENCH: I NEW DELHI DELHI BENCH: I NEW DELHI DELHI BENCH: I NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI B.K. HALDAR, ACCOUNTANT MEMBER SHRI B.K. HALDAR, ACCOUNTANT MEMBER SHRI B.K. HALDAR, ACCOUNTANT MEMBER SHRI B.K. HALDAR, ACCOUNTANT MEMBER I.T.A NO. 1202/DEL/09 I.T.A NO. 1202/DEL/09 I.T.A NO. 1202/DEL/09 I.T.A NO. 1202/DEL/09 ASSTT. YEAR 1999 ASSTT. YEAR 1999 ASSTT. YEAR 1999 ASSTT. YEAR 1999- -- -2000 2000 2000 2000 ITO ITOITO ITO WARD WARD WARD WARD- -- -4, 4,4, 4, BULANDSHAHR BULANDSHAHR BULANDSHAHR BULANDSHAHR VS. VS. VS. VS. VIJENDRA KUMAR, VIJENDRA KUMAR, VIJENDRA KUMAR, VIJENDRA KUMAR, S/O SHRI K S/O SHRI K S/O SHRI K S/O SHRI KALLU MAL ALLU MAL ALLU MAL ALLU MAL C/O M/S. MOHAN DAIRY, C/O M/S. MOHAN DAIRY, C/O M/S. MOHAN DAIRY, C/O M/S. MOHAN DAIRY, SIYANA ROAD, SIYANA ROAD, SIYANA ROAD, SIYANA ROAD, BULANDSHAHR. BULANDSHAHR. BULANDSHAHR. BULANDSHAHR. (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) APPELLANT BY: DR. B.R.R.KUMAR, SR. DR. APPELLANT BY: DR. B.R.R.KUMAR, SR. DR. APPELLANT BY: DR. B.R.R.KUMAR, SR. DR. APPELLANT BY: DR. B.R.R.KUMAR, SR. DR. RESPONDENT BY: SHRI RAJ KUMAR, CA RESPONDENT BY: SHRI RAJ KUMAR, CA RESPONDENT BY: SHRI RAJ KUMAR, CA RESPONDENT BY: SHRI RAJ KUMAR, CA ORDER ORDER ORDER ORDER PER DIVA SINGH, JM: PER DIVA SINGH, JM: PER DIVA SINGH, JM: PER DIVA SINGH, JM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 4.2.2009 OF CIT MEERUT PERTAINING TO 1999-2000 ASST T. YEAR. 2. THE DEPARTMENT IS IN APPEAL ON THE FOLLOWING GRO UNDS :- WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME-TAX (APPEALS), HAS ERRED IN NOT CONSIDERING THE MERITS OF THE CASE AND HOLDING THAT INITIATION OF PROCEEDINGS UNDER SECTION 147 ARE INVALID? WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN H OLDING THAT THE INFORMATION ABOUT THE BOGUS NATURE OF A PARTICULAR GIFT FURNISHED BY THE DONORS ITO WOULD NOT CONSTITUTE A VALID BASIS FOR FORMATION OF BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE DECISION OF ANOTHER CIT(A) OR A NON-JURISDICTIONAL BENCH OF THE ITAT WAS BINDING ON THE LD. CIT(A). 3. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE HAD RETURNED THE TAXABLE INCOME OF RS. 89,940/- AS PER HIS RETUR N FILED ON 12.1.2000. ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 2 THE ASSESSMENT WAS REOPENED U/S 147 VIDE LETTER DAT ED 8.12.2006 SUBMITTED THROUGH HIS LD. AR. THE ASSESSEE CONTENDE D THAT THE NOTICE ISSUED U/S 148 DATED 28.3.2006 WAS NEVER SERVED UPO N THE ASSESSEE. HE ALSO STATED THEREIN THAT THE RETURN WHICH ALREADY STOOD FILED ON 12.1.2000 MAY BE CONSIDERED TO BE SUFFICIENT COMPLIANCE. 3.1. THE AO ACCORDINGLY FRAMED AN ASSESSMENT TAKIN G NOTE OF THE FACT THAT ASSESSEE IS SHOWING INCOME FROM INTEREST CAPIT AL AS PARTNER FROM M/S. MOHAN DAIRY OF RS. 88,123; AND INCOME FROM OTHER SO URCES OF RS. 9,644. HE CONSIDERED THAT THE ASSESSEE HAS RECEIVED GIFTS OF RS. 15 LAKHS. HE OBSERVED THAT FROM M/S. AMIT TRADE CORPORATION M/S. BHARGAVA ENTERPRISES; M/S. SHANTI ENTERPRISES;M/S SHANTI ENT ERPRISES THE ASSESSEE HAD RECEIVED GIFTS OF RS. 5 LACS, RS. 5 LACS, RS. 1 LAC, RS. 4 LACS RESPECTFULLY,. 3.2 THUS RS. 15 LAKHS WERE ADDED TO THE INCOME OF T HE ASSESSEE TAKING NOTE OF THE FACT THAT THE DONOR IN FACT WAS THE REP RESENTATIVE ASSESSEE SHRI D.K. AGARWAL WHO WAS SUBJECT TO SURVEY U/S 133 A WHO HAD ALLEGEDLY ARRANGED GIFTS FOR WHICH COMMISSION WAS RECEIVED BY HIM. 3.3. THE REOPENING WAS CHALLENGED ON THE GROUND THA T THE AO HAD NOT EXERCISED HIS INDEPENDENT MIND AND HAS ACTED MERELY ON THE ACT THAT SOME INFORMATION WAS RECEIVED FROM A DIFFERENT AO WHICH WAS ACCEPTED WITHOUT APPLICATION OF MIND. IT WAS ASSAILED ON THE GROUND OF BEING A BORROWED SATISFACTION. 4. AGGRIEVED BY THIS ACTION, THE ASSESSEE WENT IN A PPEAL BEFORE THE FIRST APPELLATE AUTHORITY BEFORE WHOM THE ASSESSEE AGAIN CHALLENGED THE REOPENING ON THE GROUND THAT IT WAS BASED ON BOR ROWED SATISFACTION. ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 3 4.1 IT WAS ALSO AGITATED THAT THE AO HAS ACTED ON T HE BASIS OF RECEIPT OF LETTER DATED 22.3.2006 FROM THE INCOME TAX OFFICER 4 (1) AGRA ON 28.3.2006 THROUGH FAX. IT WAS AGITATED THAT THIS RE PRODUCED VERBATIM THE REASONS RECORDED ON THE VERY SAME DATE. IT WAS FURT HER CONTENDED THAT ON THE VERY SAME DAY PROPOSAL WAS ALSO SENT TO THE ADD ITIONAL COMMISSIONER OF INCOME TAX. 4.2. APART FROM AGITATING THAT THE AO HAS ACTED MEC HANICALLY AND COMPLETED THE ENTIRE EXERCISE ON THE VERY SAME DATE ON WHICH HE RECEIVED A FAX IT WAS ALSO ASSAILED ON THE FOLLOWIN G GROUND AS PER PARA 7 OF THE IMPUGNED ORDER : 7. IT WAS FURTHER CLAIMED BY THE APPELLANT THAT THE LETTER DATED 22.3.2006 DID NOT ACCOMPANY ANY EVIDENCE, RE FERENCE OF WHICH HAS BEEN MADE IN THE REASONS RECORDED. THE ASSESSING OFFICER THEREFORE ACCEPTED THE LETTER DAT ED 22.3.2006 AS GOSPEL TRUTH AND WITHOUT APPLYING HIS OWN MIND TO THE CONTENTS OF THE LETTER DATED 22.3.2006 FOUND IT MOST CONVENIENT TO ISSUE NOTICE TO THE ASSESSEE. APPELLA NT SUBMITS THAT THERE MAY BE NO DISPUTE THAT LETTER DATED 22.3 .2006 COULD BE A SOURCE OF INFORMATION, BUT IT CANNOT BE APPRECIATED THAT MERELY ON THE STRENGTH OF LETTER WITHOUT VERIF YING THE AUTHENTICITY OR CORRECTNESS OF THE CONTENTS MENTION ED THEREIN BY THE ITO 4(1), AGRA AND WITHOUT HIMSELF HAVING A LOOK OVER THE MATERIAL, THE REFERENCE OF WHICH WAS MENTIONED IN THE SAID LETTER THE LEARNED ASSESSING OFFICER ONLY ON THE BA SIS OF BORROWED SATISFACTION ISSUED THE NOTICE DISTURBI NG THE FINALITY OF THE ASSESSMENT WHICH ALREADY STANDS CON CLUDED ON ACCOUNT OF NON-ISSUANCE OF NOTICE UNDER SECTION 143 (2) WITHIN THE PROVIDED PERIOD OF LIMITATION. 4.3 RELIANCE WAS PLACED UPON THE FOLLOWING CASES FO R THE PROPOSITION THAT THE EXERCISE OF THE AO MUST CONTAIN THE INGRED IENTS OF A DEFINITE APPLICATION OF MIND SO AS TO FORM AN INDEPENDENT BE LIEF: A) ANANT KUMAR SOANIA VS. CIT REPORTED IN (1998) 2 32 ITR 533 (GAU.) B) MADAN LAL JINDAL VS. ITO REPORTED IN (1973) 92 ITR 546 (CAL.) C) MRS. VINITA JAIN VS. ITO REPORTED IN (2007) 158 TAXMAN 167 (DEL.) (MAG.) ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 4 4.4. IT WAS FURTHER SUBMITTED BEFORE THE CIT(A) THA T THE ORDER OF THE ITAT IN THE CASE OF VINITA JAIN WHICH WAS CHALLENGED BY THE REVENUE BEFORE THE HONBLE DELHI HIGH COURT WAS CONFIRMED AS REPORTED IN 299 ITR 383 (DELHI.) IT WAS CONTENDED THAT THE RE-OPENING THERE IN HAD BEEN DONE ON THE BASIS OF THE DDIT (INVESTIGATION) BELIEF THAT T HE TRANSACTION OF CAPITAL GAIN WAS BOGUS. THE HONBLE HIGH COURT HELD THEREIN THAT THE AO DID NOT VERIFY THE CORRECTNESS OF THE INFORMATION RECEIVED AND SIMPLY ACCEPTED THE CORRECTNESS OF THE INFORMATION. 4.5. IN THE CONTEXT OF THESE FACTS AND POSITION OF LAW IT WAS SUBMITTED THAT THE REASONS RECORDED IN THE PRESENT CASE IS NO THING BUT THE COPY OF REPORT AS RECEIVED FROM ITO 4 (1), AGRA WHO WAS OF THE OPINION THAT THE TRANSACTION IS NON-GENUINE. THE ASSESSING OFFICER I SSUED THE NOTICE WITHOUT THERE BEING ANY SATISFACTION OF HIS OWN, ON THE BORROWED SATISFACTION FROM THE ITO 4(1), AGRA WITHOUT THERE BEING ANY RELATABLE MATERIAL AND WITHOUT VERIFYING THE CORRECTNESS OF T HE INFORMATION RECEIVED HE ISSUED NOTICE ACCEPTING THE REPORT BY ITO 4(1), AS GOSPEL TRUTH AGAINST THE ASSESSEE, WHICH ACTION IT WAS STATED IS CLEARLY HIT BY THE AFORESAID AUTHORITIES. 4.6 THE ACTION WAS ASSAILED AS BEING ILLEGAL AND WI THOUT AUTHORITY OF LAW AND THEREFORE, THE CONSEQUENT ASSESSMENT IT WAS AGI TATED WAS WITHOUT JURISDICTION AS SUCH LIABLE TO BE QUASHED. 4.7. AS PER PAGE 5 OF THE IMPUGNED ORDER RELIANCE W AS FURTHER PLACED UPON THE DECISION OF HONBLE ALLAHABAD HIGH COURT I N THE CASE OF INDRA PRASTHA CHEMICALS (P) LTD. VS. CIT (2004) 271 ITR 1 13 (ALL.) WHEREIN THE NOTICE U/S 148 WAS ISSUED BY THE ASSESSING OFFICER ON THE BASIS OF REPORT SUBMITTED BY INSPECTOR OF INCOME TAX. IT WAS SUBMIT TED THAT THE HONBLE HIGH COURT QUASHED THE NOTICE HOLDING THAT IN THE R EPORT OF THE INSPECTOR ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 5 THERE WAS NO RELEVANT MATERIAL TO POINT OUT THAT A NY INCOME HAS ESCAPED ASSESSMENT. 4.8 RELIANCE WAS ALSO PLACED ON THE JUDGMENT OF THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS.SMT. PARAM JEET KAUR REPORTED IN (2008) 168 TAXMAN 39 (P &H) WHEREIN THE NOTICE U/S 148 WAS ISSUED BY THE AO ON THE BASIS OF INFORMATION RECEIVED FROM TH E SURVEY CIRCLE THAT THE ASSESSEE HAS GOT PREPARED A DRAFT WHICH WAS NOT ACCOUNTED FOR IN ITS BOOKS OF ACCOUNTS. IT WAS SUBMITTED THAT ON BEING C HALLENGED THE HONBLE H.C. HELD AS UNDER: - IN THE INSTANT CASE, IT WAS UNDISPUTED THAT THE AS SESSING OFFICER HAD INITIATED REASSESSMENT PROCEEDINGS ON THE BASIS OF INFORMATION RECEIVED FROM THE SURVEY CIRCLE THAT THE ASSESSEE H AD GOT PREPARED A DEMAND DRAFT WHICH WAS NOT ACCOUNTED FOR IN THE B OOKS OF ACCOUNT OF THE ASSESSEE. BUT THE ASSESSING OFFICER HAS NOT EXAMINED AND CORROBORATED THE INFORMATION RECEIVED FROM THE SURV EY CIRCLE BEFORE RECORDING HIS OWN SATISFACTION OF ESCAPED INCOME AN D INITIATING REASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER HA D, THUS, ACTED ONLY ON THE BASIS OF SUSPICION AND IT COULD NOT BE SAID THAT THE SAME WAS BASED ON BELIEF THAT THE INCOME CHARGEABLE TO T AX HAD ESCAPED ASSESSMENT. THE ASSESSING OFFICER HAS TO ACT ON THE BASIS OF REASON TO BELIEF AND NOT ON REASONS TO SUSPECT. THE TRI BUNAL HAD, THUS, RIGHTLY CONCLUDED THAT THE ASSESSING OFFICER HAD FA ILED TO INCORPORATE THE MATERIAL AND HIS SATISFACTION FOR REOPENING THE ASSESSMENT AND THEREFORE, THE ISSUANCE OF NOTICE UNDER SECTION 148 FOR REASSESSMENT PROCEEDINGS WAS NOT VALID. 4.9 THE ACTION OF THE AO WAS ALSO ASSAILED AS PER THE PARA 15 OF THE IMPUGNED ORDER ON THE FOLLOWING REASONING :- 15. IT WAS VEHEMENTLY SUBMITTED BY THE APPELLANT TH AT THE REASONS HAVE BEEN RECORDED IN A CYCLOSTYLED MANNER. IT CANNOT BE A CO-INCIDENCE THAT ALMOST ALL THE ASSESSING OFFICER COULD HAVE ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 6 RECORDED IDENTICAL REASONS. REASONS AS RECORDED IN THE PRESENT CASE ARE ON RECORDS. ASSESSEE FURNISHED A COLUMNAR CHART DEMONSTRATING THAT ITO WARD-4 AND ITO WARD-1, HAVE RECORDED REASO NS WHICH ARE SIMILARLY WORDED. IT IS THEREFORE, PROVED THAT REAS ONS HAVE BEEN RECORDED IN A MECHANICAL MANNER WITHOUT INDEPENDENT APPLICATION OF MIND BY THE ASSESSING OFFICER. 4.10 PAGES 6-9 OF THE IMPUGNED ORDER CONTAINS THE T ABULAR FORM OF REASONS RECORDED BY THE AO ON THE VERY SAME DATE. 4.11 THE CONTENTION WAS ALSO PUT FORTH ON BEHALF O F THE ASSESSEE THAT FORMATION OF THE REQUIRED BELIEF BY THE AO IS A CON DITION PRECEDENT FOR THE ISSUANCE OF NOTICE AND WITHOUT FORMATION OF SUCH BELIEF THE AO CAN NOT HAVE JURISDICTION TO INITIATE PROCEEDINGS U/S 147. THE FULFILLMENT OF THIS CONDITION IT WAS CONTENDED WAS NOT A MERE FORMALITY BUT IT WAS A MANDATORY REQUIREMENT. IT WAS SUBMITTED THAT ANY FA ILURE TO FULFILL THE CONDITION WOULD VITIATE THE ENTIRE PROCEEDINGS. 4.12 AS PER PARA 16 AND 17 FOLLOWING OBJECTIONS WER E ALSO POSED BY THE ASSESSEE :- 16. ON THE BASIS OF ABOVE, IT WAS SUBMITTED BY THE APPELLANT THAT REASONS RECORDED ARE BASED ON BORROWED SATISFACTIO N FROM ITO 4 (1), AGRA, RECORDED IN A CYCLOSTYLED MANNER WITHOUT APPLICATION OF INDEPENDENT MIND AND ON THESE REASONS IT CANNOT BE PRESUMED THAT THE ASSESSING OFFICER RECORDING THE SATISFACTION AN D ISSUING THE NOTICE HAD ANY BELIEF OF THERE OWN. IT CANNOT BE AT TRIBUTED TO ANY CO- INCIDENCE AND IT FULLY PROVES THE ASSESSEES CASE T HAT THE REASONS AS RECORDED BY THE ASSESSING OFFICER LACKS APPLICATION OF MIND, LACKS SATISFACTION OF HIS OWN AND CANNOT FORM VALID BASIS FOR INITIATION OF PROCEEDING UNDER SECTION 148 AGAINST THE ASSESSEE. 17. ASSESSEE FURTHER SUBMITTED THAT UNDER SECTION 1 47 OF THE ACT THE PROCEEDINGS CAN BE INITIATED ONLY IF THE AO HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSES SMENT FOR ANY ASSESSMENT YEAR. THE QUESTION WHETHER THE AO HAD RE ASONS TO BELIEVE IS NOT A QUESTION OF LIMITATION ONLY BUT IS A QUESTION OF JURISDICTION, A VITAL THING WHICH WHEN QUESTIONED N EEDS TO BE EXAMINED BY THE APPELLATE AUTHORITIES. ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 7 4.13 THE ASSESSEE PLACED HEAVY RELIANCE ON THE FOLL OWING JUDGMENTS AS PER PAGES 10 TO 12 OF THE IMPUGNED ORDER :- I) GANGA SARAN & SONS (P) LTD. VS. ITO (1981) 130 ITR 1 (SC) II) ITO VS. LAKHMANI MEWAL DAS (1976) 103 ITR 437 ( SC) III) GANGA PRASAD MAHESHSWARI & OTHERS VS. CIT REPO RTED AT 139 ITR 1043 (ALL.) IV) ARJUN SINGH VS. DIRECTOR OF INCOME TAX REPORTED IN 246 ITR 363 (M.P) 4.14. RELYING ON THE PRINCIPLES LAID DOWN IN THE AB OVE JUDGMENTS IT WAS CONTENDED AS UNDER VIDE PARA 23: 23. IT WAS THUS SUBMITTED BY THE APPELLANT THAT TH E REASONS RECORDED MAY BE EXAMINED IN THE LIGHT OF ABOVE GUI DING PRINCIPLES AS EVOLVED BY THE VARIOUS COURTS. ASSESS EE SUBMITTED THAT HE WISHES TO DEMONSTRATE THE RELEVAN CY OF THE REASONS RECORDED QUA THE FACTS ON RECORDS. ASSESSE E FURTHER SUBMITTED THAT ASSESSEE DOES NOT INTENDS TO CHALLEN GE THE SUFFICIENCY OF THE REASONS AS RECORDED BY THE ITO B UT AS HELD BY VARIOUS COURTS THE RELEVANCY OF THE REASONS RECO RDED ARE OPEN CAN CERTAINLY BE QUESTIONED AND ARE OPEN FOR J UDICIAL SCRUTINY. THUS, THE REASONS RECORDED MAY KINDLY BE EXAMINED IN THE LIGHT OF DECISIONS REFERRED ABOVE. 4.15. AT PAGE 12 TO 16 PARA-WISE COMMENTS ADDUCING THE REASONS RECORDED MADE BY THE ASSESSEE AGAIN IN A TABULAR FO RM ARE FOUND REPRODUCED. 4.16. RELIANCE BEFORE THE CIT(A) WAS FURTHER PLACED UPON THE ORDERS OF THE AGRA BENCH VIDE ORDERS DATED 23.5.08 AND 20.6.2008 IN ITA NOS. 171,173, 174 AND 175 ALONGWITH CO NO. 24, 26, 25 AND 50 WHER EIN THE ISSUE FOR CONSIDERATION INVOLVED WAS IDENTICAL AS THERE ALSO THE RE-OPENING WAS BASED ON THE SAME INFORMATION PERTAINING TO GIFT RE CEIVED FROM SAME TO SAME SHRI D.K. AGARWAL. 4.17. RELIANCE WAS ALSO PLACED UPON THE ORDER DATED 19.5.08 OF THE AGRA BENCH IN ITA NO. 484/AGR/2007 WHEREIN THE NOTICE U/ S 148 OF THE ACT WAS FOUND TO BE BASED ON NO VALID REASONS IN THE CASE O F SAME KIND OF GIFTS. ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 8 4.18. RELIANCE WAS ALSO PLACED UPON YET ANOTHER ORD ER DATED 28.7.2007 OF AGRA BENCH IN ITA NO. 468/AGRA/2008 AND 469/AGRA/20 08 FOR ASSTT. YEAR 1999-2000 WHEREIN THE REASSESSMENT PROCEEDINGS WERE QUASHED. THE FACTS WERE ALSO STATED TO BE IDENTICAL. IT WAS SUB MITTED THAT THEREIN ALSO THERE WAS THE ALLEGATION THAT GIFTS RECEIVED FORM S HRI D.K. AGGARWAL IS A MERE ACCOMMODATION ENTRY BASED ON THE VERY SAME INF ORMATION.. 4.19. RELIANCE WAS ALSO PLACED UPON THE CASE OF AGA RWAL WAREHOUSING LEASING LTD. VS. CIT 124 TAXMAN 440 (M.P) WHEREIN T HE HONBLE HIGH COURT HELD THAT THE CIT(A) NOT ONLY COMMITTED JUDICIAL IM PROPRIETY BUT ALSO ERRED IN LAW IN RESPECT TO FOLLOW THE ORDER OF THE TRIBU NAL. IT WAS EMPHASIZED THAT THEIR LORDSHIPS HAVE HOLD THEM THAT EVEN WHERE THE AO MIGHT HAVE SOME RESERVATION ABOUT THE CORRECTNESS OF THE DECIS ION OF THE TRIBUNAL HE HAD TO FOLLOW. 4.20. IN THE CONTEXT OF THE SAME PROPOSITION NAMELY THAT THE PRINCIPLES OF THE JUDICIAL DISCIPLINE REQUIRED THAT THE ORDER OF THE HIGHER APPELLATE AUTHORITIES SHOULD BE FOLLOWED UNRESERVEDLY BY THE SUBORDINATE AUTHORITIES, RELIANCE WAS PLACED UPON THE JUDGMENT OF SUPREME COURT IN THE CASE OF UNION OF INDIA VS. KAMLAKSHI FINANCE CO RPN. LTD. (1992) AIR S.C.711. 4.21. IN LINE WITH THE SAME PROPOSITION RELIANCE WA S PLACED ON THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF K.N. AGARWAL VS. CIT REPORTED IN 189 ITR 769 (ALL). FOR READY REFERE NCE RELEVANT EXTRACT OF THE OBSERVATION IS REPRODUCE HEREUNDER :- INDEED, THE ORDERS OF THE TRIBUNAL AND THE HIGH CO URT ARE BINDING UPON THE ASSESSING OFFICER AND SINCE HE ACT S IN A QUASI-JUDICIAL CAPACITY, THE DISCIPLINE OF SUCH FUN CTIONING DEMANDS THAT HE SHOULD FOLLOW THE DECISION OF THE T RIBUNAL OR THE HIGH COURT, AS THE CASE MAY BE. HE CANNOT IGNOR E IT MERELY ON THE GROUND THAT THE TRIBUNALS ORDER IS T HE SUBJECT MATTER OF REVISION IN THE HIGH COURT OR THAT THE HI GH COURTS ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 9 DECISION IS UNDER APPEAL BEFORE THE SUPREME COURT. PERMITTING HIM TO TAKE SUCH A VIEW WOULD INTRODUCE JUDICIAL IN DISCIPLINE, WHICH IS NOT CALLED FOR EVEN IN SUCH CASES. IT WOUL D LEAD TO A CHAOTIC SITUATION. TRUE IT IS THAT THE DILEMMA OF T HE REVENUE IS ALSO REAL AND SUBSTANTIAL IN SUCH CASES, BUT SUCH A SITUATION CANNOT BE PROVIDED FOR BY JUDICIAL INTERPRETATION B Y COURTS, BUT ONLY BY AN APPROPRIATE AGENCY . 4.22. VIDE GROUND NO. 2 BEFORE THE CIT(A) THE ASSES SEE AGITATED THAT NOTICE U/S 148 WAS NEVER SERVED ON THE ASSESSEE. TH E SAID ISSUE IS ADDRESSED VIDE PARA 31 OF THE IMPUGNED ORDER. 4.23. ARGUMENTS ON FACTS AND LAW IN REG ARD TO GROUND NO. 2 ARE FOUND DISCUSSED IN PARA 32 TO 34 AT PAGES 18 TO 21 OF THE IMPUGNED ORDER. 4.24. IT WAS SUBMITTED THAT THE AO DISPOSED THE A SSESSEES OBJECTION IN REGARD TO THE SERVICE OF NOTICE HOLDING THAT THE NO TICE WAS SERVED BY NOTICE SERVER ON SMT. MEENAKASHI AGARWAL ON 30.6.20 06 AND BY SPEED POST ON 29.3.2006 ON 18/33 MOTI BAGH, BULANDSHAHR. IT WAS ASSAILED ON THE GROUND THAT THE POSTAL ADDRESS TO WHICH NOTICE WAS SENT WAS THE WRONG ADDRESS AS THE POSTAL ADDRESS OF THE ASSESSEE IS VIJENDRA KUMAR, C/O M/S. MOHAN DAIRY, SIYANA ROAD, BULANDSHAHAR. IT WAS STATED THAT THE ASSESSEE HAS ALWAYS BEEN FILING ITS RETURN OF INCOM E FROM THE SAID ADDRESS. FURTHER IT WAS SUBMITTED THAT THE RESIDENT IAL ADDRESS OF THE ASSESSEE IS 18/37 MOTI BAGH, BULANDSHAR AND NOT 18/ 33, MOTI BAGH, BULANDSHAHAR. 4.25. IT WAS HIS SUBMISSION THAT SINCE THE ASSESSEE HAS DENIED THE RECEIPT OF SERVICE OF NOTICE U/S 148. ACCORDINGLY IT WAS IN CUMBENT UPON THE AO TO SHOW THAT NOTICE WAS PROPERLY SERVED UPON THE ASSES SEE OR HIS APPOINTED AGENTS. IT WAS SUBMITTED THAT THE SAID EXERCISE WAS NOT DONE. PRIOR TO SERVICE OF NOTICE THE AO WAS REQUIRED TO RECORD THE REQUISITE SATISFACTION THAT THE NOTICE COULD OTHERWISE NOT BE SERVED ON TH E ASSESSEE IN PERSON OR ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 10 THE ASSESSEE IS AVOIDING SERVICE OF NOTICE. IT WAS HIS OBJECTION THAT NO SUCH SATISFACTION HAS BEEN RECORDED. NO EVIDENCE HA S BEEN SHOWN THAT THE ASSESSEE AVOIDED SERVICE OF NOTICE OR PRIOR TO SERVICE OF NOTICE REASONABLE AND DILIGENT EFFORTS WERE MADE TO SERVE NOTICE UPON THE ASSESSEE. THE AO AS PER RECORD DIRECTLY SERVED THE NOTICE ON A PERSON WHOM HE READILY FOUND AVAILABLE. THIS WAS STATED TO BE IN CONTRAVENTION TO THE REQUIREMENTS OF LAW. FOR THE SAID PURPOSE. RELI ANCE WAS PLACED UPON THE ORDER OF THE AGRA BENCH IN THE CASE OF PAL SING H GULATI VS ITO 1(3) . THE SAID ORDER WAS RELIED UPON FOR THE PROPOSITION THAT HEREIN THE ITAT HAD QUASHED THE NOTICE U/S 148 SERVED ON THE WIFE OF TH E ASSESSEE. THE FACT WAS STATED TO BE IDENTICAL. THE RELEVANT FINDING RE LIED UPON BY THE ASSESSEE IS FOUND AND REPRODUCED PAGES 19 TO 21 OF THE IMPUGNED ORDER. 4.26. IN REGARD TO THE ALLEGED SERVICE THROUGH SPEE D POST IT WAS HIS SUBMISSION THAT THE PRESUMPTION THAT THE SAME IS SE RVED UPON THE ASSESSEE SINCE IT HAS NOT COME BACK CAN OPERATE, AG AINST THE ASSESSEE ONLY WHEN THE NOTICE HAS BEEN SENT TO THE CORRECT A DDRESS. SINCE THE ADDRESS HAS NOT BEEN CORRECTLY MENTIONED AS IT IS N EITHER THE ADDRESS WHICH IS MENTIONED IN THE ASSESSEES INCOME TAX RET URN WHICH IS AVAILABLE WITH THE DEPARTMENT AND NOR IS IT THE CORRECT RESID ENTIAL OF THE ASSESSEE AND IS IN FACT A DIFFERENT ADDRESS. THUS IT WAS ARG UED THAT THE PRESUMPTION CANNOT OPERATE IN FAVOUR OF THE DEPARTMENT. IT WAS SUBMITTED THAT NO EVIDENCE HAS BEEN BROUGHT BY THE DEPARTMENT TO SHOW WHO HAS RECEIVED THE NOTICE OF THE SPEED POST AND THE ASSESSEE IS P REPARED TO FILE AN AFFIDAVIT IN THIS REGARD IF SO DESIRED. ACCORDINGLY , IT WAS CONTENDED THAT THE ASSTT. ORDER MADE WITHOUT A VALID SERVICE OF NO TICE U/S 148 WAS STATED TO BE VOID AB INITIO ON THE BASIS OF THE FOLLOWING JUDGMENTS : (I) VENKAT NAICKEN TRUST VS. ITO (2000)242 ITR 141 (MAD.) (II) JAGANNATH PRASAD & ORS. VS. CIT & ORS. (1977) 110 ITR 27 (ALL.) (III) CIT VS. SATYA NARAIN PODDAR (1973) 89 ITR 136 (ALL.) ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 11 (IV) KUNJ BEHARI VS. ITO (1983) 139 ITR 73 (P & H) (V) GAJENDRA KUMAR BANTHIA VS. UOI (1996) 222 ITR 6 32 (CAL.) (VI) M.O. THOMAS VS. CIT(1963) 47 ITR 775 (KER.) (VII) WHIRLPOOL INDIA HOLDINGS LT.D VS. DDIT (2004) 1 SOT 165 (DEL.) (VIII) WORLD WIDE EXPORTS (P) LTD. VS. ITO (2004) 9 1 ITD 519 (DEL.) (IX) CIT VS. RAJESH KUMAR SHARMA (2008) 214 CTR (DE L.) 547 4.27. THEREAFTER VIDE PARAS 35 TO 67 AND THE PAGES 22 TO 34 THE ASSESSEE ADVANCED VARIOUS ARGUMENTS ON MERIT. IT WAS CONTEND ED THAT THE FACTS AVAILABLE ON RECORD WERE NOT CONSIDERED BY THE AO I N THE CORRECT PERSPECTIVE IN LINE WITH THE SETTLED LEGAL PRINCIPL ES. THE JUDGMENTS RELIED UPON BY THE AO ON MERIT WERE DISCUSSED AT LENGTH A ND THE APPLICABILITY OF THESE IN THE FACTS WAS ADDRESSED. JUDGMENTS OF VARI OUS HIGH COURTS AND THE APEX COURT WERE RELIED UPON AT LENGTH IN ORDER TO CONTEND THAT THE ADDITIONS HAVE BEEN MADE DEHORSE THE FACTS AS SUCH THE ADDITION DESERVES TO BE DELETED IN THE EVENTUALITY THE ASSES SEE DOES NOT SUCCEED ON THE GROUNDS OF JURISDICTION. 5. CONSIDERING THE SUBMISSIONS THE CIT (A) PROCEED TO QUASH THE PROCEEDINGS VIDE PARA 69 TO 74 FOUND AT PAGES 35 TO 38 OF THE IMPUGNED. THE CIT(A) HELD THAT THE REOPENING HAS BEEN BASED O N THE REASONS FORWARDED BY ITO WARD 4 (1) AGRA BY ITO WARD 4 BULL ANDSHAR IT HAS BEEN HELD BY HIM THAT THERE IS NO APPLICATION OF MIND BY THE AO AS THERE WERE NO DETAILS OR INFORMATION WHICH COULD PRIME FACIE ESTABLISH THE NON GENUINENESS OF THE GIFTS. THE AO WAS HELD TO HAVE I NITIATED PROCEEDINGS ON THE BASIS OF VAGUE AND SKETCHY INFORMATION SUPPL IED TO HIM BY ITO 4 (1) AGRA. IN ORDER TO COME TO THE CONCLUSION HE RELIED UPON THE JUDGMENT OF THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CI T VS. SMT. PARAMJEET KAUR CITED SUPRA RELIANCE IS ALSO PLACED UPON THE O RDER IN THE CASE OF MRS. VINITA JAIN VS ITO (2007) 158 TAXMAN 167(DEL)(MAG.) WHICH WAS APPROVED ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 12 AND UPHELD BY THE DELHI HIGH COURT AS FOUND REPORT ED IN (2008) 299 ITR 383 (DELHI). RELIANCE WAS FURTHER PLACED UPON THE I TAT, AGRA BENCH DECISIONS IN ITA NO. 171/173/174/175/AGRA/2008 FOR A.Y. 1999-2000 AND C.O. NO. 24/26/25/50/AGRA/2008 IN WHICH CASES THE I TAT QUASHED THE REASSESSMENT PROCEEDINGS WHEREIN THE ISSUE INVOLVED WAS FOUND TO BE SIMILAR AND THE REASONS RECORDED WERE CONSIDERED TO BE IDENTICAL. 5.1. ACCORDINGLY IN VIEW OF THE AFOREMENTIONED FACT UAL AND LEGAL POSITION HE CONCLUDED AS UNDER :- 73. IN THE LIGHT OF ABOVE DISCUSSION, IT IS EVIDE NT THAT REASONS AS RECORDED IN THE INSTANT CASE IS NOTHING BUT THE COPY OF REPORT AS RECEIVED FROM ITO 4(1), AGRA WHO WAS OF T HE OPINION THAT THE TRANSACTION IS NON-GENUINE. THE ASSESSING OFFICER ISSUED THE NOTICE WITHOUT THERE BEING ANY SATISFACT ION OF HIS OWN, ON THE BORROWED SATISFACTION FROM THE ITO 4 (1), AGRA WITHOUT THERE BEING ANY RELIABLE MATERIAL AND WITHO UT VERIFYING THE CORRECTNESS OF THE INFORMATION RECEIVED AND ISS UED NOTICE ACCEPTING THE REPORT BY ITO 4 (1), AS GOSPEL TRUTH AGAINST THE ASSESSEE, WHICH ACTION IS CLEARLY HIT BY THE AFORES AID AUTHORITIES. I AM ALSO PERSUADED BY THE DECISION TA KEN BY MY COUNTER PART CIT(A)-II, AGRA. IN THE FOLLOWING CASE S THE LEARNED CIT(A)-II, AGRA HAD QUASHED THE REASSESSMENT PROCEE DINGS, COPIES AVAILABLE ON RECORDS : (A) PREETI AGARWAL VS. ITO 4(3), AGRA DATED 24.10.2 008 (B) MAHESH CHAND AGARWAL VS. ITO 4 (2), AGRA DATED 24.10.2008 (C) MEERA RANI VS. ITO 4(2), AGRA DATED 24.10.2008 (D) MEENU RANI MITTAL VS. ITO 5 (2), FIROZABAD DATE D 22.10.2008 (E) RAJ KUMAR MITTAL VS. ITO 5 (3), FIROZABAD DATED 23.10.2008 (F) KUSUM KUMARI MITTAL VS. ITO 5(2), FIROZABD DATE D 23.10.2008 (G) KUNAL MITTAL VS. ITO 5(3), FIROZABAD DATED 22. 10.2008 (H) RAM NIWAS MITTAL VS. ITO 5(3), FIROZABAD DATED 23.10.2008 THE DECISION OF MINE WOULD BE IN CONFORMITY WITH TH E VIEW TAKEN BY THE HONBLE ITAT, AGRA BENCH, AGRA AND WITH DECISIO NS AS HELD BY THE HONBLE APEX COURT IN THE CASE OF UNION OF INDI A VS. KAMALAKSHI FINANCE CORPN. LTD. (SUPRA) AND BY THE HONBLE ALLA HABAD HIGH COURT ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 13 IN K.N.AGARWAL VS. CIT (SUPRA) IS BINDING ON APPELL ATE AUTHORITIES. THEREFORE, IN THE TOTALITY OF FACTS AND CIRCUMSTANC ES OF THE CASE AS DETAILED OUT ABOVE AND IN VIEW OF THE LEGAL POSITIO N THE ACTION OF THE ASSESSING OFFICER IN ISSUING NOTICE UNDER SECTION 1 48 ON THE BASIS OF REASONS AS RECORDED BY HIM IS DECLARED WITHOUT AUTH ORITY OF LAW AND THEREFORE, THE CONSEQUENT ASSESSMENT IS VOID-AB-INI TIO WITHOUT JURISDICTION AND LIABLE TO BE QUASHED. 74. APPELLANT HAS ALSO FILED SUBMISSION ON MERITS. HOWEVER, AFTER HAVING HELD THAT THE REASONS RECORDED IN THIS CASE ARE NOT VALID AND ON WHICH ACTION UNDER SECTION 148 COULD NOT HAVE BE EN TAKEN, THERE IS NO NEED TO DECIDE OTHER GROUNDS TAKEN ON MERITS IN VIEW OF THE DECISIONS OF HONBLE CALCUTTA HIGH COURT IN THE CAS E OF RAWATMAL HARAKCHAND VS. CIT (1981) 129 ITR 346 (CAL.) AND HO NBLE ITAT (S.B.). NAGPUR SPECIAL BENCH IN THE CASE OF RAHUL K UMAR BAJAJ VS. ITO (1999) 69 ITD 1 (NAG.) (S.B.) 6. AGGRIEVED BY THIS FINDING THE REVENUE IS IN APPE AL BEFORE THE TRIBUNAL. 7. LD. DR PLACES RELIANCE UPON THE ASSESSMENT ORDER . HE FURTHER PLACES HEAVY RELIANCE UPON THE FOLLOWING JUDGEMENTS :- 1. PRAFUL CHUNILAL PATEN VS. M.J. MAKWANA/ACIIT REP ORTED IN 236 ITR 832 2. H.A. NANJI & CO. VS. ITO, AWADH DISTRICT PART (2 ), CALCUTTA REPORTED IN 120 ITR 593 (CALCUTTA) 3. ACIT VS. RAJESH JHAVERI STOCK BROKERS (P) LTD. R EPORTED IN 291 ITR 500 (SC) 4. PHOOL CHAND BAJRANG LAL AND ANOTHER VS. ITO REPORTED IN 203 ITR 456 (SC) 7.1 ON THE BASIS OF THESE IT WAS HIS CONTENTION THA T FOR THE FORMATION OF BELIEF SOME INFORMATION IS SUFFICIENT AND NO PRELIM INARY INQUIRY IS REQUIRED TO BE MADE BY THE AO. IN THE FACTS OF THE PRESENT C ASE THE AO HAS RIGHTLY REOPENED THE PROCEEDINGS BY WAY OF RECORDING HIS RE ASONS IN WRITING AND SATISFACTION IS OF THE AO CONCERNED. THE SAME HAS B EEN ARRIVED AT ON THE BASIS OF INFORMATION IN HIS POSSESSION THAT THE GIF TS ARE NOT GENUINE AS ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 14 SUCH THE ACTION OF THE AO IS VERY MUCH WITHIN THE R EQUIREMENTS OF THE ACT AND THE SETTLED LEGAL PRINCIPLES. 8. THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE ON THE OTHER HAND RELIED UPON THE IMPUGNED ORDER. 8.1. THE VARIOUS JUDGEMENTS RELIED UPON BY THE ASSE SSEE BEFORE THE CIT(A) WERE ALSO HEAVILY RELIED UPON. IT WAS SUBMIT TED THAT THESE ARE DISCUSSED AT LENGTH IN THE IMPUGNED ORDER AND ASSE SSEE IS PLACING HEAVY RELIANCE ON THEM. HEAVY RELIANCE WAS PLACED UPON TH E SUBMISSIONS ADVANCED BEFORE THE CIT(A) WHICH ARE ALSO DISCUSSED AT LENGTH IN THE IMPUGNED ORDER. INVITING ATTENTION TO THE SAME IT WAS REITERATED THAT IT IS A FACT ON RECORD THAT THE REOPENING WAS DONE PURELY ON THE BASIS OF LETTER DATED 22.3.2006 RECEIVED FROM ITO WARD 4(1) ON 28.3 .2006 BY FAX. FOR THIS ASSERTION ATTENTION WAS INVITED TO PAPER BOOK 2 SO AS TO CONTEND THAT THE LETTER MENTIONED THAT ONE SHRI D.K. AGARWAL CRE ATED CERTAIN TRUSTS AND HAS GIVEN GIFTS, DONATIONS ETC. TO DONEES HAVING NO RELATIONSHIP WITH THE TRUST. 8.2. APART FROM THE ARGUMENTS ADVANCED BEFORE THE C IT(A) ON THE BASIS OF WHICH THE PROCEEDINGS WERE QUASHED IT WAS SUBMIT TED THAT THE ASSESSEE WOULD FURTHER WANT TO SUPPORT THE IMPUGNED ORDER ON CERTAIN OTHER FACTS WHICH ARE AVAILABLE ON RECORD. 8.3 THE ASSESSMENT ORDER WAS ASSAILED ON THE GROUND THAT THERE ARE VARIOUS OTHER SHORTCOMINGS IN THE REASONS RECORDED WHICH WOULD SHOW THAT THE REOPENING HAS BEEN DONE IN A MECHANICAL BA SIS. IT WAS CONTENDED THAT IT WAS A CASE OF COMPLETE NON APPLICATION OF M IND ON THE PART OF THE AO. REFERRING TO THE REASONS RECORDED IT WAS SUBMIT TED THAT THE REOPENING WAS DONE AS PER THE DEPARTMENT ON ACCOUNT OF THE A LLEGED BOGUS TRANSACTIONS OF GIFTS FROM FOUR TRUSTS AMOUNTING TO RS. 20 LACS AS WOULD BE EVIDENT FROM THE PAGE 2 WHICH CONTAINS A COPY OF TH E REASONS RECORDED. FOR READY REFERENCE THESE DETAILS ARE REPRODUCED HE REUNDER :- ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 15 GIFT AMOUNT CH/DD NO. DATE NAME & ADDRESS OF THE DONOR RS.5,00,000/- 307084 20.01.1999 FROM M/S. MAH ESH TRUST, 31/87 LOHAR GALI, AGRA RS.5,00,000/- DD 21.01.1999 M/S. SMT. MEERA AGARWAL FAMILY TRUST, AGRA RS.1,00,000/- DD861978 21.1.1999 M/S.GYANENDRA AGA RWAL (P)FAMILY TRUST,AGRA 138929 RS.4,00,000/- DD8619825 23.01.1999 M/S. DO- RS.5,00,000/- 307064 20.01.1999 M/S. DINESH K AGARWAL(P) FLY(SP.)TRUST,AGRA RS.20,00,000/- 8.4. INVITING ATTENTION TO THE ASSESSMENT ORDER IT WAS SUBMITTED THAT ADDITION HAS BEEN MADE ON THE OTHER HAND ON ACCOUNT OF BOGUS GIFTS OF RS. 15 LACS AS OPPOSED TO THE REASON RECORDED WHICH TAL KS OF BOGUS GIFTS OF RS. 20 LACS. 8.5 ADDRESSING THE AO U/S 147 VIS A VIS THE REASONS RECORDED IT WAS FURTHER SUBMITTED THAT NONE OF THE TRUSTS MENTIONED BY AO ARE THE ONES FROM WHOM GIFTS HAVE BEEN RECEIVED AS WOULD BE EVID ENT FROM PAGE 3 AND 4 OF THE ASSTT. ORDER. THE DETAILS AS PER ASSESSMEN T ORDER ARE AS UNDER :- AS PE AS PE AS PE AS PER ASSTT. ORDER, R ASSTT. ORDER, R ASSTT. ORDER, R ASSTT. ORDER, AMOUNT (RS.) AMOUNT (RS.) AMOUNT (RS.) AMOUNT (RS.) TRUST NAME TRUST NAME TRUST NAME TRUST NAME 50000/- AMIT TRADE CORPN. (TRUST) 100000/- SHANTI ENTPP. (TRUST) 400000/- -DO- 500000/- BHARGAVA ENTPP. (TRUST) 1500000/ 1500000/ 1500000/ 1500000/- -- - TOTAL TOTAL TOTAL TOTAL WHEREAS AS PER THE REASONS RECORDED THE FACTS ARE A S UNDER :- AS PER REASONS RECORDED AS PER REASONS RECORDED AS PER REASONS RECORDED AS PER REASONS RECORDED AMOUNT (RS.) TRUST NAME AMOUNT (RS.) TRUST NAME AMOUNT (RS.) TRUST NAME AMOUNT (RS.) TRUST NAME ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 16 500000/- MAHESH TRUST 500000/- MEERA AGARWAL FAMILY TRUST 100000/- GYANEDRA AGARWAL (P) FAMILY TRUST 400000/- -DO- 500000/- DINESH K AGARWAL (P) FLY (SP) TRUST 2000000/- TOTAL 8.6. ACCORDINGLY IT WAS HIS SUBMISSION THAT A PERUS AL OF THE AO VIS A VIS THE REASONS RECORDED WOULD SHOW THE BARE FACT THAT NOT ONLY THE DONOR TRUSTS WERE ENTIRELY DIFFERENT BUT EVEN THE DEMAND DRAFT CHEQUE NOS. WERE ENTIRELY DIFFERENT . THIS FACT IT WAS ARGUED FURTHE R SUPPORTS THE IMPUGNED ORDER AND THE FINDING THEREIN THAT HOW BLINDLY AND MECHANICALLY THE AO HAS PROCEEDED TO REOPEN THE CONCLUDED ASSESSMENT. I T WAS HIS SUBMISSION THAT THERE WAS NO APPLICATION OF MIND OF THE AO. TH E ARGUMENT ADVANCED BEFORE THE CIT(A) THAT THE FAXED INFORMATION OF ITO AGRA WAS ACCOMPANIED WITH NO DETAILS ON WHICH THE AO COULD HAVE APPLIED HIS MIND WAS REITERATED. IT WAS ARGUED THAT THERE WAS NO MATERIA L BEFORE THE AO TO DISBELIEVE THE ASSESSEE AND TREAT THE INFORMATION O F A DIFFERENT ITO AS SACROSANCT AND CORRECT AS A GOSPEL TRUTH. 8.7. REITERATING AGAIN THE ARGUMENTS ADVANCED BEFOR E THE CIT (A) WHICH HAVE BEEN ACCEPTED IN THE IMPUGNED ORDER IT WAS HIS SUBMISSION THAT THE FAX ADMITTEDLY WAS RECEIVED BY THE CONCERNED ITO ON 28 TH MARCH, 2006 ON THE BASIS OF IT REASONS WERE RECORDED IN A MECHANI CAL MANNER ON THE VERY SAME DATE; AND EVEN THE APPROVAL OF THE ADDITIONAL COMMISSIONER WAS OBTAINED AGAIN ON THE VERY SAME DATE AND AS THOUGH THIS WAS NOT ENOUGH THE NOTICE WAS ALSO PREPARED ON 28 TH MARCH, 2006 AS IS EVIDENT FROM PAPER BOOK PAGE I. THE FACTS REMAINED THAT IN ORDER TO R EOPEN THE ASSESSMENT ADMITTEDLY THE AO DID NOT CALL FOR OR EXAMINE ANY D OCUMENTS WHATSOEVER SO, AS TO, CROSS-CHECK ON WHAT BASIS WAS THE MAT ERIAL EXAMINED BY THE AO OF AGRA. THE AO SITTING AT BULLANDSHAR IT WAS EM PHASISED RELIED BLINDLY ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 17 ON THE INFORMATION OF AO AGRA WITHOUT CARING TO EXA MINE A SINGLE DOCUMENT. IT WAS HIS CONTENTION THAT THE CIT(A) HA S HELD THAT THE AO HAS PROCEEDED ON BORROWED SATISFACTION AND NOTHING HAS BEEN PLACED ON RECORD BY THE DEPARTMENT TO SHOW THAT THERE WAS ANY MATERIAL BEFORE THE CONCERNED OFFICER TO HOLD THAT INCOME HAD ESCAPED A SSESSMENT. IT WAS EMPHASISED THAT SINCE NO DOCUMENTS EITHER ACCOMPAN IED THE FAX INFORMATION AND ADMITTEDLY NO INDEPENDENT INQUIRY T O FORM THE PRIME FACIE BELIEF THAT INCOME HAS ESCAPED WAS DONE BY THE CONC ERNED AO. IN FACT IT WAS CONTENDED THAT THE AO DID NOT EVEN HAVE THOSE D OCUMENTS ON THE BASIS OF WHICH ITO AGRA SENT THE FAX TO THE CONCE RNED AO. THUS THE IMPUGNED ORDER WAS SUPPORTED ON THE GROUND THAT THE CONCERNED AO DID NOT EVEN EXAMINE THE CORRECTNESS OF THE INFORMATION . FOR THE SAID ASSERTION REFERENCE WAS AGAIN MADE TO THE AMOUNTS A ND THE NAME OF THE TRUST MENTIONED IN THE REASONS RECORDED AND HOW THE Y DO NOT TALLY EITHER IN THE TOTAL AMOUNT OR IN THE NAMES OF THE DONOR TR UST WITH THE TRUSTS MENTIONED IN THE ASSESSMENT ORDER. IT WAS ARGUED TH AT SINCE THERE WAS NO APPLICATION OF MIND BY THE CONCERNED AO AS HE HAS P ROCEEDED ON BORROWED SATISFACTION NO INDEPENDENT INQUIRY WAS DO NE AND THERE WAS NO MATERIAL BEFORE HIM IN ORDER TO COME TO THE CONCLUS ION TO FORM A PRIME FACIE BELIEF THE PROCEEDINGS HAVE BEEN RIGHTLY QUAS HED. IT WAS ALSO REITERATED THAT THE MANNER IN WHICH THE ENTIRE EXE RCISE OF SUCH A SOLEMN NATURE IS DONE IN A MECHANICAL BASIS ENTIRELY IN A DAY SHOWS HOW CARELESSLY THE AO HAS PROCEEDED. IT WAS EMPHASISED THAT THERE IS NO COMPATIBILITY IN THE REASONS RECORDED AND THE CASES EXAMINED IN THE REASSESSMENT PROCEEDINGS AS NEITHER THE NAMES OF TH E DONORS NOR THE TOTAL AMOUNT MATCHES WITH THE REASONS RECORDED VIS A VIS THE ASSESSMENT ORDER. IT WAS SUBMITTED BY HIM THAT THE REASONS ARE NON EST. 8.8. INVITING ATTENTION TO SECTION 147 IT WAS CONTE NDED THAT SECTION 147 MANDATES THAT OTHER INCOME CAN BE CHARGED TO TAX ON LY ALONGWITH THE INCOME FOR WHICH REASONS ARE RECORDED AND IF THE IN COME MENTIONED IN THE ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 18 REASONS IS NOT RELEVANT OR IS NOT CONCEALED INCOME THEN NO OTHER INCOME CAN BE TAXED. IT WAS CONTENDED THAT ONCE THE AO COM ES TO THE CONCLUSION THAT INCOME IN RESPECT OF WHICH HE HAS ISSUED NOTIC E WAS FOUND EXPLAINED HIS JURISDICTION COMES TO A STOP AND HE CANNOT TAX ANY OTHER INCOME WHICH COMES TO HIS KNOWLEDGE SUBSEQUENTLY AFTER THE ISSU ANCE OF THE NOTICE AND THUS WHEN THE INCOME MENTIONED IN THE REASONS IS NO T FOUND AS ESCAPED INCOME NO OTHER INCOME CAN BE ASSESSED U/S 148 FOR THE SAID PROPOSITION RELIANCE WAS PLACED UPON ITO VS LAKSHAY EXIM PVT. LTD. 131 TTJ (DEL) 621. 8.9. IN THE CONTEXT OF THE PRINCIPLE SETTLED IN ITO VS. LAKSHAY EXIM RELIANCE WAS PLACED ON THE FOLLOWING JUDICIAL PRONO UNCEMENTS :- AUTHORITIES :- CIT VS. JET AIRWAYS INDIA LTD.331 ITR (BOM) 236 CIT VS. SHRI RAM SINGH 217 CTR (RAJ.) 345 MANOJ SURGICAL INDUSTRIES (2010)42 DTR (INDORE)(TRI B.)81 CIT VS. DR. DEVENDRA GUPTA 220 CTR (RAJ.) 629 CIT VS. ATLAS CYCLES INDUSTRIES 180 ITR 319 (P &H) CHHAGAN LAL URF VIDHYA SAGAR GUPTA (08) 12 DTR (JOD .)(TRIB.) 497 CIT VS. RAJ FINLEASE LTD. 220 CTR (MAD.) 306 8.10. WITHOUT PREJUDICE TO THE ARGUMENTS ADVANCED I T WAS FURTHER CONTENDED THAT THERE WAS NO APPLICATION OF MIND BY THE AO TO INITIATE PROCEEDINGS U/S 147 AND THERE WERE NO SATISFACTION OF CONCEALMENT RECORDED BY THE AO IN THE REASONS RECORDED. 8.11. AGAIN INVITING ATTENTION TO THE REQUIREMENTS AS SPELT OUT IN SECTION 147 IT WAS HIS SUBMISSION THAT THE AO SHOULD HAVE R EASONS TO BELIEVE AND THE REASON TO BELIEVE CAN BE FORMED ONLY WHEN THERE IS SOME MATERIAL BEFORE THE AO WHICH MAY SUGGEST SOME ESCAPED INCOME AND A FAX LETTER OF A DIFFERENT ITO CANNOT LEAD TO REASON TO BELIEVE OF THE CONCERNED AO. ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 19 THE CONCERNED AO AS PER SETTLED LEGAL PRINCIPLES H AS TO DO SOME EXERCISE INDEPENDENTLY ON THE INFORMATION TO CROSS CHECK ITS CORRECTNESS. SINCE ADMITTEDLY THE ASSESSEE DID NOT RECEIVE ANY GIFT FR OM THE ALLEGED DONORS AS MENTIONED IN THE REASONS RECORDED. THIS ITSELF A PPROVED THE FACT THAT THE AO HAS NOT APPLIED HIS MIND AT ALL AND HAS MERE LY PROCEEDED ON BORROWED SATISFACTION TREATING THE INFORMATION OF A DIFFERENT AO TO BE THE GOSPEL TRUTH. RELIANCE IN SUPPORT OF THE SAID PROPO SITION WAS PLACED UPON THE FOLLOWING JUDGMENTS . CIT VS. SFIL STOCK BROKING LTD. 233 CTR (DEL.)69 SARTHAK SECURITIES CO. (P) LTD. 329 ITR 110 (DEL.) TEJ PRATAP SINGH 116 ITD 388 (DEL.) CIT VS. SMT. PARAMJIT KAUR 311 ITR 38 8.12. THE IMPUGNED ORDER WAS ALSO ASSAILED ON THE G ROUND THAT IN THE FACTS OF THE PRESENT CASE THERE WAS NO NOTICE SERVE D UPON THE ASSESSEE. HEAVY EMPHASIS WAS LAID ON THE FACT THAT OFTEN THIS ARGUMENT IS ADVANCED AT THE LAST STAGE BY THE ASSESSEE. HOWEVER IN THE FACTS OF THE PRESENT CASE IT WAS SUBMITTED THAT THE ASSESSEE HAS ASSAILE D THE ACTION OF THE AO RIGHT FROM THE BEGINNING. INVITING ATTENTION TO THE ASSESSMENT ORDER IT WAS SUBMITTED THAT THIS OBJECTION IS POSED BY THE ASSE SSEE BEFORE THE AO AND THIS FACT IS FOUND DISCUSSED IN THE ASSESSMENT ORDE R ITSELF AND THE AO HOWEVER HAS TWISTED THE REPLY GIVEN. COPY OF REPLY DATED 23/11/2006 SUBMITTED TO THE AO WHICH IS PLACED AT PAGE 3 OF TH E PAPER BOOK ADDRESSES THIS FACT. ATTENTION WAS INVITED TO PAGE 18 OF THE IMPUGNED ORDER WHEREIN VIDE PARA 31 ONWARDS THE ASSESSEE HAS AGITATED THIS ISSUE SPECIFICALLY. INVITING ATTENTION OF THE BENCH TO TH IS CONSISTENT GRIEVANCE OF THE ASSESSEE ON RECORD IT WAS RE-ITERATED THAT IN R EGARD TO THE NOTICE ALLEGEDLY SENT BY POST, IS ADDRESSED AS PER RECORD TO THE WRONG ADDRESS AND THE SERVICE OF NOTICE ON SMT.MEENAKSHI AGGARWA L IS ON A PERSON NOT AUTHORISED BY THE ASSESSEE AS SUCH ON A WRONG PERSO N. INVITING ATTENTION TO PAGE 3 WHICH IS A LETTER ADDRESSED TO THE AO DAT ED 23.11.2006. IT WAS ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 20 SUBMITTED THAT THE ASSESSEE AT THE OPENING SENTEN CE ITSELF STATES THAT THAT NO NOTICE U/S 148 HAS BEEN SERVED UPON THE ASS ESSEE AS SUCH NO RETURN IN COMPLIANCE TO THE SAID NOTICE WAS FILED. INVITING ATTENTION TO SAID LETTER IT WAS SUBMITTED THAT IT WAS STATED THAT AT THE END OF THE LETTER THAT THE PROCEEDINGS ARE INVALID AND VOID AB INITIO AS N O NOTICE U/S 148 HAS BEEN SERVED UPON THE ASSESSEE. 8.13 IT WAS HIS VEHEMENT STAND THAT RIGHT FROM THE BEGINNING THE ASSESSEE HAS BEEN CONSISTENTLY DISPUTING THE SERVIC E OF NOTICE. THE SERVICE OF NOTICE ON ANY RELATIVE BY THE NAME OF ME ENAKSHI AGGARWAL IT WAS CONTENDED CANNOT BE CONSIDERED TO BE A VALID S ERVICE IN TERMS OF SECTION 282 OF THE INCOME TAX ACT. THE NOTICE IT WA S SUBMITTED HAD TO BE SERVED ON THE ASSESSEE AND NOT ON SOME LADY MENTION ED AS MINAKSHI AGARWAL. IT WAS CONTENDED THAT SHE IS NOT AN AUTHOR IZED AGENT OF THE ASSESSEE AND THE FACT REMAINS ASSESSEE HAS NEVER RE CEIVED SUCH NOTICE. THE SAID ACTION WAS STATED TO BE BAD IN LAW AS PER THE JUDGMENT OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. RAJESH KU MAR SHARMA 311 ITR 235 (DEL) WHEREIN THE COURT WAS SEIZED OF AN IDENTICAL ISSUE. IN THE FACTS OF THAT CASE NOTICE WAS RECEIVED BY PERSON OTHER THAN THE ASSESSEE AND THERE WAS NO MATERIAL ON RECORD TO SHOW THAT THE SA ID PERSON WAS THE AUTHORISED PERSON AND SINCE THE ASSESSEE DISPUTED T HAT THERE WAS NO RECEIPT OF NOTICE. THE HIGH COURT WAS OF THE VIEW T HAT THE ONUS WAS PLACED ON THE REVENUE TO PROVE DEEMED RECEIPT. IN REGARD TO THE NOTICE SENT THROUGH POST THEREIN THE ADDRESS WAS FOUND TO BE IN COMPLETE AND IN FACT A WRONG ADDRESS. AS SUCH THE IMPUGNED ORDER WAS SUPPO RTED ON THIS GROUND TOO AS IT WAS THE ARGUMENT OF THE LD. AR THAT THESE GRIEVANCES OF THE ASSESSEE ARE AVAILABLE ON RECORD AND STAND UNREBUTT ED. ADMITTEDLY THE ADDRESS MENTIONED IN THE POSTAL ADDRESS IS NOT THE CORRECT ADDRESS OF THE ASSESSEE. AT THE COST OF RE-ITERATION IT WAS POINTE D OUT THAT IT IS NEITHER THE ADDRESS FROM WHICH RETURNS ARE FILED NOR IS IT THE CORRECT RESIDENTIAL ADDRESS. IT WAS FURTHER STATED THAT THE ASSTT. OR DER ITSELF HAS BEEN FRAMED ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 21 MENTIONING THIS ADDRESS AND ALL OTHER NOTICES SENT TO THE ADDRESS OVER THE YEARS HAVE ALWAYS BEEN RECEIVED BY THE ASSESSEE. TH E PRESUMPTION OF SERVICE CANNOT OPERATE IN FAVOUR OF THE AO SINCE T HE ADDRESS MENTIONED IS ADMITTEDLY A WRONG ADDRESS. IN THE FACE OF THE A SSESSEES STAND THE ONUS WAS UPON THE DEPARTMENT TO PROVE SERVICE BY PR ODUCING COGENT MATERIAL WHICH MAY INCLUDE THE AD OR SERVICE REPORT FROM THE POSTAL AUTHORITIES WHICH IS NOT AVAILABLE. RELIANCE WAS P LACED UPON CIT VS. LAXMI NARAIN 168 TAXMAN 128 (P & H). FOR THE CONTEN TION THAT IF SERVICE BY REGISTERED POST IS DENIED THEN THE ONUS SHIFTS T O THE DEPARTMENT TO PROVE THE SERVICE BY PRODUCING THE POSTAL RECORDS. THUS THE REGISTERED POST SERVICES AS PER SETTLED LEGAL PROPOSITION REMA INS UNPROVED. 8.14. ACCORDINGLY IT WAS HIS CONTENTION THAT THE I MPUGNED ORDER DESERVES TO BE UPHELD. 8.15. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAS A RGUED THE APPEAL AT LENGTH BEFORE THE CIT(A) EVEN ON MERIT AND THE CIT (A) HAS RECORDED THE ARGUMENTS ON RECORD. AS SUCH HEAVY RELIANCE WAS PLA CED UPON THEM IN THE EVENTUALITY THE DEPARTMENT SUCCEEDS IN ITS GROUNDS. 9. LD. DR ON THE OTHER HAND IN REGARD TO THE RESIDE NTIAL ADDRESS CONTENDED THAT IN A SMALL PLACE LIKE BULLANDSHAHAR MENTIONING OF THE ADDRESS AS 18/37 OR 18/33 IS NOT A MAJOR FLAW AND P RESUMABLY THE LETTER WOULD HAVE BEEN RECEIVED BY THE ASSESSEE AS IT HAS NOT BEEN SENT BACK UNSERVED FOR THE DEPARTMENT. IN REGARD TO ADDRESSIN G THE LETTER TO M/S. MOHAN DAIRY, THE ONLY OCCUPANTS WOULD PRESUMABLY BE COWS AND BUFFALLOWS AS SUCH THE DEPARTMENT MAY HAVE CONSIDER ED IT PRUDENT TO SEND THE NOTICE TO THE RESIDENTIAL ADDRESS BY THE P OST . IT WAS ALSO HIS SUBMISSION THAT THE AO HAS PROCEEDED ON HIS OWN SAT ISFACTION AND THE ASSTT. ORDER DESERVES TO BE UPHELD AND THE IMPUGNED ORDER IT WAS REQUESTED MAY BE SET ASIDE. ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 22 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE JUDGMENTS RELIED UPON BY T HE PARTIES BEFORE THE BENCH AND THE ORDERS OF THE CO-ORDINATE BENCHES REL IED UPON BEFORE THE CIT(A) AND BEFORE US BY THE LD. AR AS WELL AS THE L D. DR HAVE BEEN TAKEN INTO CONSIDERATION. 10.1. ON CONSIDERATION OF THE FACTS AND ARGUMENTS T HEREON ALONGWITH THE LEGAL PRINCIPLES CANVASSED BEFORE US BY THE PARTIES BEFORE THE BENCH THE UNDISPUTED FACTS WHICH REMAIN ON RECORD ARE THAT TH E INFORMATION OF ITO AGRA WARD 4(1) WAS RECEIVED BY FAX BY THE CONCERNED ASSESSING OFFICER ON THE VERY DAY ON WHICH HE RECORDED HIS REASONS, OBTA INED THE NECESSARY APPROVALS AND ISSUED NOTICE. IT IS ALSO AN UNDISPUT ED FACT ON RECORD THAT THE REASONS RECORDED ARE VERBATIM WITH THE FAXED IN FORMATION. IT IS ALSO A MATTER OF RECORD THAT NONE OF THE DONOR TRUSTS ARE THE TRUST FROM WHOM THE ASSESSEE HAS RECEIVED GIFTS. IT IS ALSO A MATTE R OF RECORD THAT QUA THE INFORMATION RECEIVED AND REASONS RECORDED THE GIFTS WERE ALLEGEDLY OF RS. 20 LAKHS WHEREAS THE ASSESSMENT ORDER WOULD SHOW TH AT THEY ARE OF RS. 15 LAKH. THESE ARE SOME OF THE FACTS ON THE BASIS O F WHICH IT HAS BEEN CANVASSED THAT THE REASONS RECORDED ARE BASED ON BO RROWED SATISFACTION, THE AO HAS PROCEEDED IN HASTE AND ACTED MECHANICAL LY AS ADMITTEDLY THE SPECIFIC FACTS NAMELY DONOR TRUSTS, AMOUNTS, WERE A LL WRONG. IT IS SEEN THAT ON FACTS THE DEPARTMENT HAS NOT REBUTTED THE ASSESS EES STAND. THE DEPARTMENT HAS RELIED UPON CASE LAW TO CANVASS THAT ONCE THE REASONS ARE RECORDED ON THE INFORMATION RECEIVED, THE ACTION OF RE-OPENING IS JUSTIFIED. NO DOUBT SUFFICIENCY OF REASON CANNOT BE AGITATED H OWEVER THE FIRST HURDLE THAT THE FORMATION OF BELIEF IS OF THE CONCERNED AO AND NOT OF SOME OTHER AO HAS TO BE MET. THE BLIND ACCEPTANCE IN HASTE THE VIEW OF ANOTHER AO HAS NOT BEEN REBUTTED BY ANY COGENT FACT OR ARGUMEN T AND TO OUR MIND CASE LAW CANNOT ADDRESS THE ISSUE. A PERUSAL OF THE FINDING OF THE CIT(A) REPRODUCED IN THE EARLIER PART OF THIS OR DER WOULD SHOW THAT APPELLATE AUTHORITY HAS HELD THAT THE REASONS RECORDED IS NOTHING BUT A COPY OF INFORMATION AS RECEIVED ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 23 FROM ITO 4(1) AGRA WHO WAS OF THE OPINION THAT THE TRANSACTION IS NON- GENUINE. THE CIT(A) HAS COME TO THE CONCLUSION THAT THE AO HAS PROCEEDED ON BORROWED SATISFACTION. THE AO HAS BE EN HELD TO HAVE PROCEEDED IN ISSUING NOTICE ACCEPTING THE REPORT OF ITO 4 (1) AS GOSPEL TRUTH WITHOUT VERIFYING THE CORRECTNESS OF THE INFO RMATION RECEIVED. THE CIT(A) HAS FURTHER TAKEN INTO CONSIDERATION THE ORD ER DATED 23 RD MAY, 2008 IN ITA NO. 171TO 175 / AGRA / 2006 ALONGWITH CO. NO . 24 / 25 / AND 50 THE AGRA /2008 SO AS TO CONCLUDE THAT THE ISSUE IS COV ERED. A PERUSAL OF THE ABOVE MENTIONED ORDER DATED 23 RD MAY, 2008 PLACED AT PAGES 2 TO 10 OF THE PAPER BOOK SHOWS THAT THE CO-ORDINATE BENCH CO NSIDERED THE CASES OF THREE DIFFERENT ASSESSEES NAMELY VIPIN KUMAR AGGARW AL, SUNIL KUMAR AGGARWAL AND ANIL KUMAR AGGARWAL WHEREIN THE ISSUE FOR CONSIDERATION WAS THE SATISFACTION OF THE AO BASED ON INFORMATION FROM AO AGRA OF BOGUS GIFTS FOR TRUSTS CREATED BY SHRI D.K. AGARWAL ON THE BASIS OF SURVEY U/S 133A CONDUCTED ON 22.4.2001 AT THE PREMISES OF SHRI P.K. AGGARWAL. THE CO-ORDINATE BENCH DISMISSED THE DEPARTMENTAL AP PEAL WHEREIN THE ADDITION HAD BEEN DELETED ON MERIT AND CONSIDERING THE ASSESSEES CROSS OBJECTION WHEREIN THE CIT(A) HAD UPHELD THE PROCEED INGS U/S 147 THE CO- ORDINATE BENCH RELYING UPON CIT VS. ANITA JAIN AND VINITA JAINS CASE REPORTED IN 299 ITR 383 HELD THAT THE ISSUE IS COV ERED BY THE PRINCIPLE SET DOWN IN THE SAID JUDGMENT IN AS MUCH THE AO ACCEPTE D WITHOUT VERIFYING THE CORRECTNESS OF THE INFORMATION RECEIVED BY HIM IN A MECHANICAL MANNER. THE CO-ORDIANTE BENCH HAS ALSO RELIED UPON INDRA PRASTHA CHEMICALS (P) LTD. VS. CIT 271 ITR 113 (ALL). IN VI EW OF THE PECULIAR FACTS AND CIRCUMSTANCES AS THEY STAND WE ARE OF THE CONSI DERED VIEW THAT THE DEPARTMENTAL APPEAL DOES NOT HAVE ANY MERIT. BEING SATISFIED WITH THE REASONING AND CONCLUSION ARRIVED AT BY THE CIT(A) A ND CONSIDERING THE SAME IN THE LIGHT OF THE SETTLED LEGAL PRINCIPLE TH E SAME IS UPHELD. IN THE FACTS OF THE PRESENT CASE THE ASSESSEE HAS FURTHER FORTIFIED THE FINDING ARRIVED AT IN THE IMPUGNED ORDER BY THE UNREBUTTED ARGUMENTS ADVANCED NAMELY THAT THE AO HAS MECHANICALLY PROCEEDED WITH OUT VERIFYING THE ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 24 CORRECTNESS OF THE INFORMATION GIVEN AS NOT ONLY T HE NAME OF THE DONORS AS PER THE REASONS RECORDED BASED ON THE INFORMATIO N GIVEN IS INCORRECT BUT EVEN THE AMOUNTS QUA THE FACTS IN THE ASSESSEE S ORDER WHEN COMPARED WITH THE REASONS RECORDED IS COMPLETELY WR ONG. 10.2 BEFORE PARTING WE WOULD LIKE TO DISCUSS THE CA SE LAW RELIED UPON BY THE LD. SR. DR WHICH HAS BEEN TAKEN INTO CONSIDERAT ION BY US. 10.3 ON A CAREFUL CONSIDERATION OF THE PRINCIPLES L AID DOWN BY THE COURTS IN THE FACTS BEFORE THEM IT IS SEEN THAT IN THE FA CTS OF THE PRESENT CASE THEY DO NOT STRENGTHEN THE CASE OF DEPARTMENT IN AN Y MANNER. NOTWITHSTANDING THE FACT THAT EACH CASE PROCEEDS ON FACTS ENTIRELY PECULIAR TO ITS OWN. IT IS SEEN THAT THE PRINCIPLES LAID DOWN THEREIN CANNOT HAVE A BLANKET APPLICATION . WE CONSIDER IT APPROPR IATE TO DISCUSS THEM SEPARATELY. IT IS SEEN THAT THE LD. DR HAS HEAVILY RELIED UPON PRAFUL CHUNILAL PATEL VS. M.J. MAKWANA/ACIIT, H.A. NANJI & CO. VS. ITO, ACIT VS. RAJESH JHAVERI STOCK BROTHERS (P) LTD., PHOOL CHAND BAJRANG LAL AND ANOTHER VS. ITO (CITIED SUPRA) FOR THE PROPOSITION THAT FOR THE FORMATION OF BELIEF SOME INFORMATION IS NECESSARY AND NO PRELIMI NARY INQUIRY IS REQUIRED TO BE MADE AND AS LONG AS REASONS ARE RECO RDED; THE SATISFACTION OF THE AO ON THE BASIS OF INFORMATION AVAILABLE WI TH HIM WILL TANTAMOUNT TO FULFILLING THE REQUIREMENTS OF LAW. 10.4 H.A. NANJI & CO. VS. ITO, CALCUTTA ( CITED SU PRA ) H.A. NANJI & CO. VS. ITO, CALCUTTA ( CITED SUPRA ) H.A. NANJI & CO. VS. ITO, CALCUTTA ( CITED SUPRA ) H.A. NANJI & CO. VS. ITO, CALCUTTA ( CITED SUPRA ) :- IT IS SEEN THAT THE FACTS AVAILABLE ON RECORD WERE THAT AFTER THE DEDUC TIONS CLAIMED BY THE ASSESSEE ON ACCOUNT OF INTEREST PAID ON HUNDI LOANS WERE ACCEPTED AS GENUINE IN THE ORIGINAL ASSESSMENTS SUBSEQUENTLY TH E ITO RECEIVED A CIRCULAR FROM THE SPECIAL INVESTIGATION DEPARTMENT. THE SAID CIRCULAR GAVE THE LIST OF BOGUS CREDITORS WHICH INCLUDED THE ALLE GED CREDITORS OF THE ASSESSEE. THE INITIATION OF REASSESSMENT PROCEEDING S WAS HELD TO BE A VALID ACTION. THEIR LORDSHIPS HELD THAT IT COULD NO T BE SAID THAT THE DISCOVERY OF CREDITORS OF THE ASSESSEE AS BOGUS CRE DITORS WAS AN ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 25 INFERENTIAL FACT BASED ON THE SAME MATERIALS WHICH THE ASSESSEE DISCLOSED AS PRIMARY FACTS. ON A READING OF THE RECORDED REAS ONS IT BECAME OBVIOUS THAT A COMPARISON OF THE NAMES OF THE BOGUS CREDITO RS WITH THE LIST OF THOSE SHOWN BY THE ASSESSEE WAS MADE BY THE ITO WHI CH WAS THE INVESTIGATION CONTEMPLATED BY THE CIRCULAR AND WHEN SUCH NAMES DISCLOSED BY THE ASSESSEE WERE FOUND IN THE LIST TH E ITO STRAIGHTWAY RECORDED HIS PRIME FACIE POSITIVE BELIEF THAT INCOM E HAD ESCAPED ASSESSMENT. IN THE FACTS OF THE PRESENT CASE AS HAS BEEN SUCCESSFULLY DEMONSTRATED BY THE ASSESSEE THAT THE NAMES OF THE DONORS TRUSTS IN THE INFORMATION FOUND HAS BEEN VERBATIM RECORDED IN THE REASONS AND THE ASSESSEE HAS NEVER RECEIVED GIFTS FROM THOSE DONOR TRUSTS. MOREOVER AS PER THE REASONS RECORDED THE ASSESSEE WAS SUPPOSED TO HAVE RECEIVED GIFTS BY WAY OF SPECIFIC CHEQUES AND DDS AMOUNTING TO RS. 20 LACS AND ON A PERUSAL OF THE ASSESSMENT ORDER PAGE 3 IT IS SEEN THAT THE GIFTS WERE RECEIVED OF RS. 15 LACS. IN THIS BACKGROUND THE ARG UMENT OF THE ASSESSEE RELYING UPON THE ORDER OF THE COORDINATE BENCH AT A GRA THAT AO HAS PROCEEDED ON BORROWED SATISFACTION AS NO EFFORT W AS MADE WHATSOEVER TO ATLEAST TO CROSS CHECK THE NAMES OF THE DONOR AN D THE AMOUNT OF GIFTS RECEIVED BY THE ASSESSEE. THE FACT THAT THESE WERE BOGUS GIFTS OR GENUINE GIFTS WOULD BE AN INFERENCE WHICH COULD BE DRAWN ON LY AFTER THE BASIC FACT THAT THE DONOR TRUSTS WERE SAME AND THE AMOUNT CONS IDERED TO HAVE BEEN RECEIVED BY THE ASSESSEE AS PER REASONS RECORDED AN D ASSESSMENT ORDER WERE SAME THE SAME. THE BLIND BELIEF WHICH THE AO P LACED ON THE CORRECTNESS OF THE INFORMATION RECEIVED IS APPARENT . HAD HE MADE SOME EFFORTS TO CROSS CHECK THE CORRECTNESS OF THE INFO RMATION THEN HE WOULD HAVE SEEN THAT NOT ONLY DONOR TRUSTS WERE DIFFERENT BUT THE AMOUNTS WERE DIFFERENT. 10.5. IT IS SEEN THAT NONE OF THE DECISIONS RELIED UPON BY THE DEPARTMENT LAY DOWN THE PROPOSITION THAT INFORMATION RECEIVE D FROM ANOTHER AO EVEN ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 26 IF INCORRECT SHOULD BE BLINDLY ACCEPTED AND ASSESSE E SHOULD BE SUBJECTED TO REOPENING OF THE PROCEEDINGS. THE AO EXERCISING THE POWERS VESTED IN HIM BY THE STATUTE IS NECESSARILY PRESUMED TO ACT IN AN UNBIASED MANNER ON THE RECEIPT OF INFORMATION IN ORDER TO FORM A BELIEF THAT INCOME HAS ESCAPED ASSESSMENT. THE HASTE IN WHICH RIGHT FROM T HE RECEIPT OF THE INFORMATION TO THE ISSUANCE OF NOTICE LEADS US AGRE E WITH THE CONCLUSION OF THE CIT(A) THAT THE AO HAS ACTED ON BORROWED SATIS FACTION. THE FACT THAT THE ENTIRE EXERCISE HAS BEEN COMPLETED WITHIN THE D AY SHOWS THAT THE POWER VESTED IN THE AO HAS BEEN MECHANICALLY EXERCI SED. IN THE FACTS OF THE PRESENT CASE WE FIND OURSELVES IN AGREEMENT WIT H THE FINDING OF THE CIT(A) IN AS MUCH AS THAT THE CONCERNED AO HAS PROC EEDED ON BORROWED SATISFACTION IN A MECHANICAL MANNER AND NOT EVEN CA RING TO MAKE A BARE MINIMUM EFFORT TO CROSS CHECK THE VERACITY OF THE I NFORMATION RECEIVED. AS SUCH THE DECISION OF THE HONBLE CALCUTTA HIGH COUR T IN THE FACTS OF THE PRESENT CASE DOES NOT HELP THE DEPARTMENT IN ANY MA NNER. 10.6 RELIANCE HAS ALSO BEEN PLACED UPON BY THE LD. SR. DR ON THE JUDGMENT OF THE APEX COURT IN THE CASE OF PHOOL CHA ND BAJRANG LAL AND PHOOL CHAND BAJRANG LAL AND PHOOL CHAND BAJRANG LAL AND PHOOL CHAND BAJRANG LAL AND ANOTHER VS. ITO (CITED SUPRA). A ANOTHER VS. ITO (CITED SUPRA). A ANOTHER VS. ITO (CITED SUPRA). A ANOTHER VS. ITO (CITED SUPRA). A PERUSAL OF THE FAC TS AS HAVE BEEN TAKEN INTO CONSIDERATION BY THE HONBLE APEX COURT WOULD SHOW THAT IN THE FACTS OF THAT CASE THE ASSESSEE CLAIMED THAT CASH LOAN HA D BEEN TAKEN FROM A SPECIFIC CALCUTTA COMPANY WHICH HAD BEEN ACCEPTED A S GENUINE BY THE AO. SUBSEQUENTLY INFORMATION FROM THE AO OF THE COM PANY AT CALCUTTA CAME INTO THE POSSESSION OF THE CONCERNED AO ACCOR DING TO WHICH THE MANAGING DIRECTOR OF THE CALCUTTA COMPANY HAD CONFE SSED THAT THE COMPANY HAD NOT ADVANCED ANY LOAN TO ANY PERSON DUR ING THE PERIOD COVERING THE DATE OF CASH LOAN. SINCE THE SUBSEQUEN T INFORMATION WAS DEFINITE, SPECIFIC AND RELIABLE NOTICE FOR REASSESS MENT WAS HELD TO BE VALID. THE ARGUMENT THAT IT WAS A MERE CHANGE OF OPINION W AS NOT ACCEPTED. WHEN CONTRASTED WITH THE FACTS OF THE PRESENT CASE THE RECORD WOULD SHOW THAT THE INFORMATION OF THE DIFFERENT AO WAS SUFFER ING FROM INACCURACIES ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 27 AND WRONG FACTS WHICH HAVE BEEN BLINDLY ACCEPTED BY THE CONCERNED AO AS OBSERVED NOT ONLY THE BASIC NAMES OF THE DONORS ARE ENTIRELY DIFFERENT EVEN THE AMOUNTS RECEIVED AS GIFTS IS DIFFERENT. TH E FACT THAT THE ENTIRE EXERCISE FROM RECEIVING THE INFORMATION ON ISSUANCE OF NOTICE IS COMPLETED IN A DAY SUPPORTS THE STAND OF THE CIT(A) THAT THE AO HAS PROCEEDED ON BORROWED SATISFACTION IN HASTE AND MECHANICALLY AND THE PRESENT CASE CANNOT BE GUIDED BY THE PRINCIPLE LAID DOWN BY THE APEX COURT WHEREIN IN THE ORIGINAL ASSESSMENT THE CLAIM HAD BEEN ALLOWED WHICH WAS SOUGHT TO BE SET ASIDE ON THE BASIS OF SPECIFIC DEFINITE AND RELIABLE INFORMATION.IN THE FACTS OF PHOOL CHAND IT IS SEEN THAT THE CONCERNE D AO HAD FORMED HIS INDEPENDENT BELIEF THAT INCOME HAD ESCAPED ASSESSME NT. THE CONCERNED AO HAVING ENTERTAINED THE DOUBTS ABOUT GENUINENESS OF LOANS TRANSACTIONS ADDRESSED A LETTER TO THE ITO CALCUTTA ON MAY 19, 1970 INQUIRING IF THE CALCUTTA COMPANY WAS WITHIN ITS JU RISDICTION AND TO GATHER CERTAIN INFORMATION FROM THE CASE RECORDS OF A SPEC IFIC COMPANY. THE ITO CALCUTTA REPLIED ON JULY 7, 1970 STATING THAT THE C ONCERNED MD HAS CONFIRMED THAT THE SOCALLED COMPANY IS A DUMMY CONC ERN AND THE POSITION HAD BEEN ACCEPTED BY THE SAID COMPANY IN THE ASSESSMENT OF THE COMPANY OVER 1962-63, 1963-64 AND 1964-65. IT W AS INFORMED THAT TRANSACTIONS WITH THIS CONCERN WERE NOT GENUINE AND THE CONCERNED ITO STATED THAT HE COULD FURNISH FURTHER INFORMATION OF ANY TRANSACTION IF IT WAS SO REQUIRED. ON THE RECEIPT OF THIS COMMUNICATI ON NOTICE WAS ISSUED TO THE ASSESSEE ON 26 TH AUGUST 1971. IT IS SEEN THAT THERE WAS SUFFICIENT MATERIAL BEFORE THE AO FOR THE FORMATION OF HIS BEL IEF AND HE HAD NOT PROCEEDED IN UNDUE HASTE ACCEPTING AS GOSPEL TRUTH THE INFORMATION FROM ANOTHER AO. THE CONCERNED AO HAS ACTED AND PROCEEDE D DILIGENTLY AND NOT FORMED AN OPINION IN UNDUE HASTE. WHEREAS IN TH E FACTS OF THE PRESENT CASE THE INFORMATION RECEIVED BY FAX HAS BEEN FOUND TO BE INACCURATE AND WRONG AS IT CONTAINED WRONG NAMES OF THE DONORS MEN TIONING WRONG AMOUNTS OF THE GIFTS WERE STATED TO GIVEN. HAD THE CONCE RNED AO APPLIED HIS MIND ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 28 HIS MIND THE GLARING MISTAKES WOULD HAVE BEEN NOTIC ED. HAVING PROCEEDED MECHANICALLY ON BORROWED SATISFACTION THE ACTIONS C ANNOT BE UPHELD. AS SUCH THE PRINCIPLE LAID DOWN THEREIN ON FACTS IS NO T OF MUCH HELP TO THE REVENUE AS THERE THE TIME TAKEN ATTENTION TO DETAIL AND THE EFFORTS TO CROSS-CHECK THE VERACITY CANNOT BE COMPARED TO THE HASTY EXERCISE IN THE PRESENT PROCEEDINGS. 10.7. SIMILARLY IN JUDGMENT OF THE GUJARAT HIGH COU RT IN THE CASE OF PRAFUL PRAFUL PRAFUL PRAFUL CHUNILAL PATEL VS. M.J. MAKWANA/ACIIT, CHUNILAL PATEL VS. M.J. MAKWANA/ACIIT, CHUNILAL PATEL VS. M.J. MAKWANA/ACIIT, CHUNILAL PATEL VS. M.J. MAKWANA/ACIIT, (C ITED SUPRA) IT IS SEEN THAT THEREIN THE CONVERSION OF CAPITAL ASSET INTO STOCK-IN-TRADE AND TRANSFER, THEREOF BY PARTNER TO FIRM IN THE EARLIER YEARS LED THE AO TO FORM THE BELIEF THAT INCOME CHARGEABLE TO TAX IN THE FORM OF CAPITAL GAI NS IN RESPECT OF THE TRANSFER WHICH TOOK PLACE IN THE EARLIER YEAR HAD E SCAPED ASSESSMENT AND THE INITIATION OF PROCEEDINGS U/S 147 WERE HELD TOB E VALIDLY INITIATED. IN THE FACTS OF THE CASE THE PRINCIPLE IS OF NO HELP TO TH E REVENUE AS HEREIN THE ENTIRE ACTION HAS BEEN BASED ON FAXED RECEIPT OF IN FORMATION OF A DIFFERENT AO WHOSE VERACITY HAS BEEN BLINDLY AND MECHANICALLY ACCEPTED AS CORRECT AND TRUE CONTRARY TO WHAT THE RECORD SHOWS. THE ENT IRE EXERCISE HAVING BEEN COMPLETED IN A SINGLE DAY LEADS US FOR THE CO NCLUSION THAT THE IMPUGNED ORDER RELYING UPON THE ORDER OF THE COORDI NATE BENCH IN THE FACTS AS THEY STAND HAS TOBE UPHELD. IN THIS BACKGR OUND NOTHING HAS BEEN PLACED BY THE DEPARTMENT TO CANVASS A CONTRARY VIEW EXCEPT RELYING ON THE PRINCIPLES LAID DOWN IN DIFFERENT JUDGMENTS WHI CH PROCEED ON FACTS PECULIAR TO THEIR OWN . IN THE FACTS OF THE GUJARAT HIGH COURT IN THE CASE OF PRAFUL CHUNILAL PATEL VS. M.J. MAKWANA/ACIIT, IT IS SEEN THAT THE AO WHILE MAKING THE ASSESSMENT FOR THE ASSESSMENT YEAR 1993- 94 RECORDED HIS REASONS IN WRITING HOLDING THAT INCOME IN 1991-92 A SSESSMENT YEAR HAD ESCAPED ASSESSMENT. BY VIRTUE OF THE FACT THAT INCO ME CHARGEABLE TO TAX IN THE FORM OF CAPITAL GAINS IN RESPECT OF TRANSFER WAS NOT TAKEN INTO CONSIDERATION. IN VIEW OF THE FACT THAT THE PROPER TY WAS CONVERTED FROM CAPITAL ASSETS TO STOCK IN TRADE AND SUBSEQUENTLY T HE PROPERTY WAS SOLD TO ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 29 THE FIRM AND THE CAPITAL GAIN ARISING FROM THE TRAN SFER TO THE PARTNERSHIP FIRM HAD NOT BEEN SUBJECTED TO TAX. AS SUCH IN THA T BACKGROUND THEIR LORDSHIPS OF THE HIGH COURT HAD AN OCCASION TO FORM THE VIEW THAT THE CONCERNED ITO HAD REASONS TO BELIEVE THAT INCOME HA D ESCAPED ASSESSMENT. AS SUCH THE VIEW FORMED IN THE FACTS OF THAT CASE WAS OF THE CONCERNED AO. WHEREAS IN THE PRESENT PROCEEDINGS IT HAS BEEN EFFECTIVELY DEMONSTRATED BY THE CIT(A) IN THE IMPUGNED ORDER TH AT THE AO PROCEEDED ON BORROWED SATISFACTION. 10.8. RELIANCE HAS ALSO BEEN PLACED ON ACIT VS. RA JESH JHAVERI STOCK ACIT VS. RAJESH JHAVERI STOCK ACIT VS. RAJESH JHAVERI STOCK ACIT VS. RAJESH JHAVERI STOCK BROKERS (P) LTD. BROKERS (P) LTD. BROKERS (P) LTD. BROKERS (P) LTD. WHEREIN IT WAS CANVASSED THAT IT W AS A CHANGE OF OPINION. IN VIEW OF THE FACT THAT INTIMATION U/S 143(1)(A) WAS CONSIDERED TO BE NOT AN ASSESSMENT AND WAS DEEMED TO BE A NOTICE OF DEMA ND U/S 156. THEIR LORDSHIPS HELD THAT THERE BEING NO ASSESSMENT QUEST ION OF CHANGE OF OPINION DOES NOT ARISE. AS SUCH THE PRINCIPLE LAID DOWN THEREIN DOES NOT ADVANCE THE CASE OF THE REVENUE. IN THE PRESENT CAS E THE IMPUGNED ORDER HAS QUASHED THE RE-ASSESSMENT NOT ON THE GROUND OF CHANGE OF OPINION BUT ON THE GROUND THAT THE CONCERNED AO HAS PROCEED ED ON BORROWED SATISFACTION, NON-APPLICATION OF MIND AND POWER OF REOPENING EXERCISE EXERCISING MECHANICALLY AMONGST OTHERS. 10.9 THE FACT THAT NOTICE WAS NOT SERVED ON THE COR RECT PERSON AND THE FACT THAT NOTICE BY POST WAS NOT SENT TO THE CORREC T ADDRESS ALSO REMAINING UNREBUTTED ON RECORD. FATUOUS ARGUMENT ADVANCED BY THE SR. DR THAT AT THE ADDRESS AS PER RETURN THE ONLY LIKELY OCCUPANT S WOULD BE COWS AND BUFFALOES AS SUCH IS OF HELP TO THE DEPARTMENT AS I T MERELY ADDRESSES THE FACT THAT NO ATTEMPT WAS MADE TO SERVE NOTICE TO TH E ADDRESS AVAILABLE ON THE RETURN. SIMILARLY THE ARGUMENT THAT NOTICE WOUL D HAVE BEEN RECEIVED DESPITE A WRONG ADDRESS IN A SMALL PLACE LIKE BULAN DSHAHAR ALSO DOES NOT INSPIRE ANY CONFIDENCE AND IT DEFINITELY CANNOT BE SAID TO BE A REBUTTAL OF THE CONSISTENT UNREBUTTED STAND OF THE ASSESSEE THA T THE NOTICE WAS NEVER SERVED UPON THE ASSESSEE. IN REGARD TO NOTICE ON SO ME MINAKSHI AGARWAL ITA NO. 1202/DEL/09 ASSTT. YEAR 1999-2000 30 AGAIN IN THE FACE OF CONSISTENT STAND OF THE ASSESS EE RIGHT FROM THE STAGE OF AO THAT HE HAS NOT RECEIVED THE NOTICE AND SHE W AS NOT THE AUTHORIZED PERSON OF THE ASSESSEE A REBUTTAL BY THE DEPARTMENT ON RECORD IS NOT AVAILABLE. THE CASE LAW RELIED UPON THE ASSESSEE ON THE ISSUE NAMELY CIT V. RAJESH KUMAR SHARMA 311 ITR 235 (DELHI) AND CIT V. LAXMI NARAIN 168 TAXMAN 128 (P&H) FURTHER FORTIFY THE ACTION OF THE CIT(A) THOUGH ON A DIFFERENT GROUND. 11. ACCORDINGLY FOR THE REASONS GIVEN HEREINABOVE T HE DEPARTMENTAL APPEAL IS DISMISSED. 12. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. 13. THE SAID ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH AUGUST, 2011. SD/- SD/- [B.K. HALDAR] [B.K. HALDAR] [B.K. HALDAR] [B.K. HALDAR] [DIVA SINGH] [DIVA SINGH] [DIVA SINGH] [DIVA SINGH] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED: 19.8.2011 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT