ITO,Ward-56(4), Kolkata, Kolkata V. M/s. Nopany & Sons, Kolkata

ITA 1258/KOL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4679 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 05-05-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 30-08-2012
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: S K TULSIYAN
• Keywords: Reopening of assessment; Unexplained cash credit; Audit objection; Tangible material; Difference of opinion; Validity of assessment; Change of opinion
• Section: 143(3); 147; 68; 148

Judgement Text

I.T.A. NO. 1258/KOL./2012 ASSESSMENT YEAR: 2004-2005 & C.O. NO. 91/KOL/2012 (IN ITA NO. 1258/KOL/2012) ASSESSMENT YEAR: 2004-2005 PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1258/KOL/ 2012 ASSESSMENT YEAR: 2004-2005 INCOME TAX OFFICER,................................ ............................APPELLANT WARD-56(4), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 -VS.- M/S. NOPANY & SONS,................................ .........................RESPONDENT 3, PRETORIA STREET, KOLKATA-700 071 [PAN : AACFN 5493 N] & C.O. NO. 91/KOL/2012 (ARISING OUT OF ITA NO. 1258/KOL/2012) ASSESSMENT YEAR : 2004-2005 M/S. NOPANY & SONS,................................ .........................CROSS OBJECTOR 3, PRETORIA STREET, KOLKATA-700 071 [PAN : AACFN 5493 N] -VS.- INCOME TAX OFFICER,................................ ............................RESPONDENT WARD-56(4), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 APPEARANCES BY: SHRI NIRAJ KUMAR, CIT, D.R., FOR THE DEPARTMENT SHRI S.K. TULSIYAN, ADVOCATE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : MAY 05, 2016 DATE OF PRONOUNCING THE ORDER : JUNE 15, 2016 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), CENTRAL-I, KO LKATA DATED I.T.A. NO. 1258/KOL./2012 ASSESSMENT YEAR: 2004-2005 & C.O. NO. 91/KOL/2012 (IN ITA NO. 1258/KOL/2012) ASSESSMENT YEAR: 2004-2005 PAGE 2 OF 9 14.06.2012 FOR THE ASSESSMENT YEAR 2004-05 AND THE SAME IS BEING DISPOSED OF ALONG WITH CROSS OBJECTION FILED BY THE ASSESSEE BEING C.O. NO. 91/KOL/2012. 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM, WHICH IS ENGAGED IN THE BUSINESS OF DEALING IN SHARES. THE R ETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 01.11.2 004 DECLARING A LOSS OF RS.24,747/-. IN THE ASSESSMENT ORIGINALLY COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 12.12.2006, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.98,090/-. THEREAFTER THE SAID ASSESSMENT WAS REOPENED BY THE ASSESSING OFFICER AN D AFTER RECORDING THE REASONS FOR DOING THE SAME, A NOTICE UNDER SECTION 148 WAS ISSUED BY HIM TO THE ASSESSEE. IN PURSUANCE OF THE SAID NOTICE IS SUED UNDER SECTION 148, THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTI ON 147 WAS COMPLETED BY THE ASSESSING OFFICER VIDE AN ORDER DA TED 08.12.2008 COMPUTING THE TOTAL INCOME OF THE ASSESSEE AT RS.22 .07 CRORES AFTER MAKING ADDITIONS OF RS.3.61 CRORES AND RS.18.45 CRO RES ON ACCOUNT OF SALE PROCEEDS OF SHARES OF M/S. SHRUTI SPINNERS LTD. TRE ATING THE SAME AS UNEXPLAINED CASH CREDITS UNDER SECTION 68 AND DIFFE RENCE IN SALE CONSIDERATION OF SHARES RESPECTIVELY. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3) READ WITH SECTION 147, AN APPEAL WAS PREFERR ED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) CHALLENGING THE VALIDIT Y OF THE SAID ASSESSMENT AS WELL AS DISPUTING BOTH THE ADDITIONS MADE THEREIN AGGREGATING TO RS.22.06 CRORES. AFTER CONSIDERING T HE SUBMISSIONS MADE BY THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE O N RECORD, THE LD. CIT(APPEALS) DELETED BOTH THE ADDITIONS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) READ WITH SECTION 147 AFTER PASSING A DETAILED ORDER DISCUSSING ALL THE RELEVANT ASPECTS OF THE CASE. KE EPING IN VIEW THE I.T.A. NO. 1258/KOL./2012 ASSESSMENT YEAR: 2004-2005 & C.O. NO. 91/KOL/2012 (IN ITA NO. 1258/KOL/2012) ASSESSMENT YEAR: 2004-2005 PAGE 3 OF 9 DELETION BY HIM OF THE ENTIRE ADDITION MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) READ WITH SECTION 147, THE LD. CIT(APPEALS) DID NOT CONSIDER IT NECESSARY TO ADJUDICATE UPON THE ISSUES RAISED BY THE ASSESSEE CHALLENGING THE VALID ITY OF THE SAID ASSESSMENT. AGGRIEVED BY THE ORDER OF THE LD. CIT(A PPEALS), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL DISPU TING THE DELETION BY THE LD. CIT(APPEALS) OF THE ADDITIONS MADE BY THE A SSESSING OFFICER IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) READ WITH SECTION 147 WHILE THE ASSESSEE HAS FILED ITS CROSS OBJECTION RAISING THE ISSUE OF VALIDITY OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 143(3) READ WITH SECTION 147. 4. AS THE ISSUE INVOLVED IN THE CROSS OBJECTION FIL ED BY THE ASSESSEE RELATING TO THE VALIDITY OF ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 143(3) READ WITH SECTION 147 IS A PRELIMINA RY ISSUE WHICH GOES TO THE ROOT OF THE MATTER, THE LD. REPRESENTATIVES OF BOTH THE SIDES HAVE ADVANCED THEIR ARGUMENTS ON THE SAME SEEKING THE BE NCH TO DECIDE THE SAME FIRST. IN THIS REGARD, THE LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE REASONS RECORDED BY THE ASSESSING OFFICER FOR REOPENING THE ASSESSMENT AS GIVEN AT PAGE NO. 51 OF THE PAPER BOOK TO POINT OUT THAT THE ASSESSMENT ORIGINALLY COMPLETED BY THE ASSESSIN G OFFICER UNDER SECTION 143(3) WAS REOPENED BY HIM ON THE BASIS OF THE SAME RECORDS AS WAS AVAILABLE BEFORE HIM WHILE COMPLETING THE ASSES SMENT ORIGINALLY UNDER SECTION 143(3). HE CONTENDED THAT THERE WAS N O NEW FACT OR NEW MATERIAL THAT HAD COME TO THE POSSESSION OF THE ASS ESSING OFFICER AFTER COMPLETING THE ASSESSMENT ORIGINALLY UNDER SECTION 143(3), WHICH FORMED THE BASIS OF REOPENING AND THUS THE REOPENING OF AS SESSMENT BY THE ASSESSING OFFICER WAS CLEARLY BASED ON A MERE CHANG E OF OPINION. RELIANCE WAS PLACED BY HIM ON THE DECISION OF THE HONBLE SU PREME COURT IN THE CASE OF HONBLE SUPREME COURT IN THE CASE OF CIT V S.- KELVINATOR OF INDIA LIMITED REPORTED IN 320 ITR 561, THE HONBLE CALCUT TA HIGH COURT IN THE I.T.A. NO. 1258/KOL./2012 ASSESSMENT YEAR: 2004-2005 & C.O. NO. 91/KOL/2012 (IN ITA NO. 1258/KOL/2012) ASSESSMENT YEAR: 2004-2005 PAGE 4 OF 9 CASE OF DEBASHIS MOULIK VS.- ACIT REPORTED IN 370 ITR 660 AND THE HONBLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS .- TUPPERWARE INDIA (P) LIMITED REPORTED IN 236 TAXMAN 494 TO CONTEND THAT THE REOPENING OF ASSESSMENT ORIGINALLY MADE UNDER SECTION 143(3) BY THE ASSESSING OFFICER WITHOUT THERE BEING ANY NEW TANGIBLE MATERIAL COMIN G TO HIS POSSESSION WAS BASED ON MERE CHANGE OF OPINION, WHICH IS NOT P ERMISSIBLE IN LAW. HE CONTENDED THAT THE ASSESSMENT COMPLETED BY THE ASSE SSING OFFICER UNDER SECTION 143(3) READ WITH SECTION 147 THUS IS BAD IN LAW AND THE SAME IS LIABLE TO BE CANCELLED. 5. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THE ASSESSMENT ORIGINALLY COMPLETED UNDER SECTION 143(3) IN THIS C ASE WAS REOPENED ON THE BASIS OF OBJECTIONS RAISED BY THE AUDIT PARTY. IN THIS REGARD, HE INVITED OUR ATTENTION TO GROUND NO. 4 RAISED BY THE ASSESSE E IN THE APPEAL FILED BEFORE THE LD. CIT(APPEALS) AND SUBMITTED THAT THE FACT THAT THE ASSESSMENT WAS REOPENED BY THE ASSESSING OFFICER ON THE BASIS OF SOME OBJECTIONS RAISED BY THE REVENUE AUDIT IS ACCEPTED BY THE ASSESSEE HIMSELF. HE CONTENDED THAT THE NEW TANGIBLE MATERI AL IN THE FORM OF AUDIT OBJECTIONS THUS WAS THERE AND SINCE THE ASSESSMENT COMPLETED UNDER SECTION 143(3) WAS REOPENED BY THE ASSESSING OFFICE R ON THE BASIS OF THIS NEW MATERIAL COMING TO HIS POSSESSION, IT WAS NOT A CASE OF REOPENING OF ASSESSMENT MADE BY THE ASSESSING OFFICER MERELY ON THE BASIS OF CHANGE OF OPINION AS ALLEGED BY THE LD. COUNSEL FOR THE AS SESSEE. RELIANCE WAS ALSO PLACED BY THE LD. D.R. ON THE DECISION OF THE HONB LE SUPREME COURT IN THE CASE OF CIT VS.- PVS BEEDIES PVT. LTD. REPORTED IN 237 ITR 13, WHEREIN THE REOPENING ON THE BASIS OF FACTUAL MISTAKE POINT ED OUT BY THE AUDIT PARTY WAS HELD TO BE VALID. 6. IN THE REJOINDER, THE LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT THERE IS NO REFERENCE TO ANY AUDIT OBJECTION MADE B Y THE ASSESSING OFFICER IN THE REASONS RECORDED FOR REOPENING AND THE LD. D .R., THEREFORE, CANNOT I.T.A. NO. 1258/KOL./2012 ASSESSMENT YEAR: 2004-2005 & C.O. NO. 91/KOL/2012 (IN ITA NO. 1258/KOL/2012) ASSESSMENT YEAR: 2004-2005 PAGE 5 OF 9 EXPAND THE SCOPE OF REASONS RECORDED BY THE ASSESSI NG OFFICER BY SUBMITTING THAT THERE WAS NEW TANGIBLE MATERIAL IN THE FORM OF AUDIT OBJECTIONS ON THE BASIS OF WHICH THE ASSESSMENT WAS REOPENED BY THE ASSESSING OFFICER. HE ALSO INVITED OUR ATTENTION TO THE GROUND NO. 4 RAISED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(APPEALS) AND SUBMITTED THAT THE ASSESSMENT WAS PRESUMABLY TAKEN BY THE ASSESSEE AS REOPENED ON THE BASIS OF SOME OBJECTIONS RAISED BY THE REVENUE AUDIT AS THE ASSESSEE WAS NOT PRIVY TO THE RELEVANT RECORD. HE CONTENDED THAT THE LD. D.R., HOWEVER, IS PRIVY TO ENTIRE INFORMATION A ND RECORD AND HE CANNOT RAISE AN ARGUMENT ON THE BASIS OF ASSESSEES PRESUM PTION WITHOUT BRINGING ANYTHING ON RECORD TO SHOW THAT THERE WAS SUCH AUDIT OBJECTION BY THE REVENUE AUDIT AND THE SAME FORMED THE BASIS OF REOPENING. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN ORDER TO APPRECIATE THE STAND TAKEN BY BOTH THE SIDES ON THE PRELIMINARY ISSUE RA ISED IN THIS CASE REGARDING THE VALIDITY OF REOPENING OF ASSESSMENT B Y THE ASSESSING OFFICER, IT IS RELEVANT TO REFER TO THE REASONS REC ORDED BY THE ASSESSING OFFICER FOR REOPENING THE ASSESSMENT, WHICH ARE AS UNDER:- CLOSER SCRUTINY OF THE AFFAIRS DISCLOSED IN THE AS SESSEES CASE AS WELL AS OTHER EVIDENCES INDICATE THAT THE A SSESSEE HAS SHOWN SALE OF SHARES OF SHRUTI SPINNERS LIMITED TO M/S. SHRUTY LTD. WHERE AS THE RECORD OF SHRUTY LTD. FOR THE AY 2004-05 AS WELL AS 2003-04 & 2005-06 DO NOT SHOW AN Y SALE TRANSACTION. THEREFORE, IT IS CLEAR THAT ASSES SEE HAS WRONGLY CLAIMED SALE OF SHARES AND GOT THE CREDIT F OR COST OF SUCH SHARES, HENCE IT IS CLEAR THAT ACTUAL COST OF SHARES HAS BEEN WRONGLY ALLOWED ELSE THE ENTIRE SALE CONSIDERATION AS CLAIMED, SHOULD HAVE BEEN ASSESSEE S INCOME U/S 68 OF THE I.T. ACT, 1961. ISSUING NOTICE U/S 148 TO RE-ASSESS THE INCOME U/S 147. 8. A PERUSAL OF THE REASONS RECORDED BY THE ASSESSI NG OFFICER CLEARLY SHOWS THAT THE ASSESSMENT ORIGINALLY COMPLETED BY H IM UNDER SECTION 143(3) WAS REOPENED ON THE BASIS OF THE SAME RECORD S AS WAS AVAILABLE I.T.A. NO. 1258/KOL./2012 ASSESSMENT YEAR: 2004-2005 & C.O. NO. 91/KOL/2012 (IN ITA NO. 1258/KOL/2012) ASSESSMENT YEAR: 2004-2005 PAGE 6 OF 9 BEFORE HIM WHILE COMPLETING THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) AND THERE WAS NO NEW TANGIBLE MATERIAL THAT HAD COME TO HIS POSSESSION ON THE BASIS OF WHICH ASSESSMENT WAS REO PENED BY HIM. AT THE TIME OF HEARING BEFORE US, THE LD. D.R. HAS CONTEND ED THAT THE ASSESSMENT WAS REOPENED BY THE ASSESSING OFFICER ON THE BASIS OF OBJECTIONS RAISED BY THE REVENUE AUDIT AND, THEREFORE, THERE WAS A TA NGIBLE MATERIAL IN THE FORM OF SUCH AUDIT OBJECTION, WHICH FORMED THE BASI S OF REOPENING. TO SUPPORT AND SUBSTANTIATE THIS CONTENTION, THE LD. D .R. HAS RELIED ON GROUND NO. 4 RAISED BY THE ASSESSEE IN ITS APPEAL F ILED BEFORE THE LD. CIT(APPEALS), WHICH READS AS UNDER:- 4. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES, THE PRESENT ORDER OF THE AO AND INIT IATION OF PROCEEDINGS U/S 147 WAS SIMPLY A CHANGE OF OPINI ON AND PRESUMABLY ON THE BASIS OF SOME OBJECTIONS RAIS ED BY THE REVENUE AUDIT, WHICH IS NOT PERMISSIBLE UNDE R LAW. 9. AS IS EVIDENT FROM GROUND NO. 4 RAISED BY THE AS SESSEE BEFORE THE LD. CIT(APPEALS), THE VALIDITY OF INITIATION OF PRO CEEDING UNDER SECTION 147 WAS CHALLENGED BY THE ASSESSEE, INTER ALIA, ON THE GROUND THAT THE SAME WAS BASED ON A MERE CHANGE OF OPINION AND WHIL E SUPPORTING ITS CASE ON THIS ISSUE, IT WAS FURTHER SUBMITTED BY THE ASSESSEE THAT SUCH INITIATION PRESUMABLY ON THE BASIS OF SOME OBJECTIO NS RAISED BY THE REVENUE AUDIT WAS NOT PERMISSIBLE UNDER LAW. THIS S TAND THUS WAS TAKEN BY THE ASSESSEE ON PRESUMPTION THAT THE REOPENING W AS BASED ON SOME OBJECTIONS RAISED BY THE REVENUE AUDIT AND IT WAS A PPARENTLY BECAUSE THE ASSESSEE WAS NOT PRIVY TO THE RELEVANT INFORMATION AND RECORD AS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE. IN O UR OPINION, IT, THEREFORE, CANNOT BE SAID MERELY ON THE BASIS OF GR OUND NO. 4 RAISED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) THAT THE R EOPENING WAS MADE BY THE ASSESSING OFFICER ON THE BASIS OF SOME AUDIT OB JECTIONS, ESPECIALLY WHEN THERE IS NOTHING BROUGHT ON RECORD BY THE LD. D.R. BEFORE US TO SHOW THAT THERE WAS SUCH AUDIT OBJECTION ACTUALLY RAISED BY THE REVENUE AUDIT I.T.A. NO. 1258/KOL./2012 ASSESSMENT YEAR: 2004-2005 & C.O. NO. 91/KOL/2012 (IN ITA NO. 1258/KOL/2012) ASSESSMENT YEAR: 2004-2005 PAGE 7 OF 9 AND THE REOPENING WAS MADE ON THE BASIS OF THE SAME . IT IS ALSO PERTINENT TO NOTE HERE THAT THERE IS NO MENTION OF SUCH AUDIT OBJECTIONS EVEN IN THE REASONS RECORDED BY THE ASSESSING OFFICER FOR REOPE NING THE ASSESSMENT. AS RIGHTLY CONTENDED BY THE LD. COUNSEL FOR THE ASS ESSEE IN THIS REGARD, THE VALIDITY OF REOPENING HAS TO BE JUDGED ON THE BASIS OF THE REASONS RECORDED AND THE INFORMATION OR MATERIAL REFERRED T O THEREIN AND IT IS NOT PERMISSIBLE TO EXTEND THE SCOPE OF REASONS BY RELYI NG ON SOME EXTERIOR MATERIAL, WHICH DOES NOT FIND MENTION IN THE REASON S RECORDED BY THE ASSESSING OFFICER. 10. IN THE CASE OF CIT VS.- KELVINATOR OF INDIA LI MITED (SUPRA), THE HONBLE SUPREME COURT HAS HELD THAT THE CONCEPT OF CHANGE OF OPINION MUST BE TREATED AS AN IN-BUILT TEST TO CHECK THE US E OF POWER AND HENCE THE ASSESSING OFFICER EVEN AFTER THE AMENDMENTS MAD E IN THE RELEVANT PROVISIONS FROM APRIL 1, 1989 HAS THE POWER TO REO PEN AN ASSESSMENT PROVIDED THERE IS TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT THERE WAS ESCAPEMENT OF INCOME FROM ASSESSMENT. IN THE CA SE OF DEBASHIS MOULIK VS.- ACIT (SUPRA), ALL INFORMATION, DOCUMEN TS AND OTHER RECORDS RELATING TO THE ASSESSEE FOR THE RELEVANT ASSESSMEN T YEAR WERE PLACED BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) AND THE ASSESSMENT COMPLETED UNDER S ECTION 143(3) WAS SOUGHT TO BE REOPENED BY THE ASSESSING OFFICER ON T HE BASIS OF NEW FACTS DISCOVERED FROM THE EXISTING RECORDS AND IN THESE F ACTS AND CIRCUMSTANCES OF THAT CASE, IT WAS HELD BY THE HONBLE CALCUTTA H IGH COURT THAT THE REASSESSMENT WAS REOPENED BY THE ASSESSING OFFICER MERELY ON THE BASIS OF CHANGE OF OPINION, WHICH WAS NOT PERMISSIBLE IN LAW. 11. AS ALREADY NOTED BY US, THERE WAS NO NEW MATERI AL THAT HAD COME TO THE POSSESSION OF THE ASSESSING OFFICER AND SINCE T HE ASSESSMENT ORIGINALLY COMPLETED UNDER SECTION 143(3) WAS REOPE NED BY HIM ON THE BASIS OF THE SAME MATERIAL, WHICH WAS AVAILABLE AT THE TIME OF COMPLETION I.T.A. NO. 1258/KOL./2012 ASSESSMENT YEAR: 2004-2005 & C.O. NO. 91/KOL/2012 (IN ITA NO. 1258/KOL/2012) ASSESSMENT YEAR: 2004-2005 PAGE 8 OF 9 OF ORIGINAL ASSESSMENT UNDER SECTION 143(3), WE ARE OF THE VIEW THAT THE REOPENING OF ASSESSMENT MADE BY THE ASSESSING OFFIC ER MERELY ON THE BASIS OF CHANGE OF OPINION WAS BAD IN LAW. THE ASSE SSMENT COMPLETED BY THE ASSESSING OFFICER UNDER SECTION 143(3) READ WIT H SECTION 147 IN PURSUANCE THEREOF THUS IS INVALID AND THE SAME IS L IABLE TO BE CANCELLED. WE ORDER ACCORDINGLY AND ALLOW THE RELEVANT GROUNDS ORIGINALLY RAISED IN THE CROSS OBJECTION OF THE ASSESSEE. 12. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFO RE THE TRIBUNAL, THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND IN ITS CRO SS OBJECTION RAISING A LEGAL ISSUE THAT THERE BEING NO ADDITION MADE BY TH E ASSESSING OFFICER IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) READ WITH SECTION 147 ON THE ISSUES RAISED IN THE REASONS RECORDED WHILE REO PENING THE ASSESSMENT, THE OTHER ADDITIONS MADE BY HIM ON THE ISSUES WHICH DID NOT FIND PLACE IN THE REASONS RECORDED ARE NOT SUSTAINABLE. KEEPING I N VIEW THE DECISION ALREADY RENDERED BY US ON THE PRELIMINARY ISSUE CAN CELLING THE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECT ION 143(3) READ WITH SECTION 147 HOLDING THE SAME TO BE ILLEGAL, THE ISS UE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND TAKEN IN THE CROS S OBJECTION AS WELL AS THE OTHER ISSUES RAISED BY THE REVENUE IN ITS APPEA L CHALLENGING THE DELETION BY THE LD. CIT(APPEALS) OF THE ADDITIONS M ADE BY THE ASSESSING OFFICER IN THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 147 HAVE BECOME INFRUCTUOUS OR ACADEMIC. WE, THEREFORE, DO NOT CONSIDER IT NECESSARY OR EXPEDIENT TO DECIDE THE SAME ON MERIT. 13. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED, WHILE THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 15, 2016 . SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 15 TH DAY OF JUNE, 2016 I.T.A. NO. 1258/KOL./2012 ASSESSMENT YEAR: 2004-2005 & C.O. NO. 91/KOL/2012 (IN ITA NO. 1258/KOL/2012) ASSESSMENT YEAR: 2004-2005 PAGE 9 OF 9 COPIES TO : (1) INCOME TAX OFFICER, WARD-56(4), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 (2) M/S. NOPANY & SONS, 3, PRETORIA STREET, KOLKATA-700 071 (3) COMMISSIONER OF INCOME-TAX (APPEALS), CENTRAL- 1, KOLKATA, (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.