THE NAVBHARAT REFRIGERATION & INDUSTRIES LTD, MUMBAI V. DCIT (OSD) CIR 7, MUMBAI

ITA 136/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101224 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-04-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 04-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SATISH R MODY SHRI N P SINGH
• Keywords: Search and seizure; Opportunity of being heard; Bad and doubtful debts; Difference of opinion; Change of opinion
• Section: 147; 148; 132; 15; 143(3); 153A

Judgement Text

1 , INCOME TAX APPELLATE TRIBUNAL,MUMBAI B BENCH , ,, , !'# , ,, , $ BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SAKTIJIT DEY,JUDICIAL MEMBER /.ITA NO.136/MUM/2013, % & /ASSESSMENT YEAR-2003-04 /.ITA NO.1-37/MUM/2013, % & /ASSESSMENT YEAR-2004-05 /.ITA NO.147/MUM/2013, % & /ASSESSMENT YEAR-2005-06 /.ITA NO.148/MUM/2013, % & /ASSESSMENT YEAR-2006-07 /.ITA NO.149/MUM/2013, % & /ASSESSMENT YEAR-2007-08 /.ITA NO.150/MUM/2013, % & /ASSESSMENT YEAR-2008-09 /.ITA NO.151/MUM/2013, % & /ASSESSMENT YEAR-2009-10 THE NAVBHARAT REFRIGERATION & INDUSTRIES LTD.SIMPLEX REALTY LTD., KESHVRAO KHAYADE MARG SANT GADGE MAHARAJ CHOWK BYCULLA(W),MUMBAI-400 011. PAN: AAACT 6217 D VS THE DCIT-(OSD-1),C.R.-7 4 TH FLOOR AAYAKAR BHAVAN, M.K. MARG NEW MARINE LINES MUMBAI-400 020. ( / APPELLANT) ( / RESPONDENT) %'# /ASSESSEE BY : SHRI SATISH R. MODY / REVENUE BY : SHRI N.P. SINGH-CIT-DR / DATE OF HEARING : 01-10 -2015 / DATE OF PRONOUNCEMENT : 01 -10-2015 , 1961 1961 1961 1961 254 254 254 254( (( (1 11 1) )) ) )*# ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER BENCH: CHALLENGING THE ORDER OF THE CIT(A)-40, MUMBAI,THE ASSESSEE HAS FILED APPEALS FOR THE ABOVE MENTIONED SEVEN AY.S.,RAISING VARIOUS GROUNDS OF AP PEAL.AS THE GROUNDS OF APPEAL ARE ALMOST SIMILAR,SO,FOR THE SAKE OF CONVENIENCE WE AR E ADJUDICATING ALL THE APPEALS BY A SINGLE ORDER. ITA NO.147/MUM/2010 A.Y.:2005-06: 1.FORWARDING AND DELIVERY CHARGES : A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE HON'BLE CIT (APPEALS) ERRED IN UPHOLDING THE DISALLOWANCE OF FORWARDING A ND DELIVERY CHARGES OF RS.1,50,0001- MADE ON ADHOC BASIS OUT OF THE TOTAL EXPENSES OF RS .11,00,542/- ON THE GROUND THAT SINCE THE EXPENDITURE WAS INCURRED IN CASH, IT WAS NOT FULLY VERIFIABLE. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE HON'BLE CIT (APPEALS) ERRED IN NOT CONSIDERING THE FACT THAT THE DISALLOW ANCE AMOUNTS TO CHANGE OF OPINION AS THE ASSESSING OFFICER U/S 143(3) HAD ALREADY DISALLOWED RS.1,00,0001-. 2. REPAIRS & MAINTENANCE EXPENSES : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE HON'BLE CIT (APPEALS) ERRED IN UPHOLDI NG THE DISALLOWANCE MADE ON ADHOC BASIS TO THE EXTENT OF 20% OF EXPENSES OF RS.2,37,2511- INC URRED AT FARUKHABAD FACTORY FOR COLD STORAGE REPAIRS AND MAINTENANCE ON THE GROUND THAT SINCE THE EXPENDITURE WAS INCURRED IN CASH, IT WAS NOT VERIFIABLE TO BE WHOLLY AND EXCLUS IVELY FOR THE PURPOSE OF THE BUSINESS. 3. BAD DEBTS - RS. 5,05,584/- : (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE HON'BLE CIT (APPEALS) ERRED IN UPHOLDING THE DISALLOWANCE OF BAD DEBTS OF RS.5,05,584/- ON THE GROUND THAT INTEREST ACCRUED WAS ASSESSABLE AS 'INCOME FROM OTHER SOURCE S'. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE HON'BLE CIT (APPEALS) ERRED IN NOT CONSIDERING THE FACT THAT THE DETAILS OF BAD DEBTS HAD BEEN CONSIDERED AND ALLOWED NAVBHARAT GROUP/136/M/13 2 EARLIER IN THE ASSESSMENT U/S 143(3). THE DISALLOWA NCE OF THE SAME WITHOUT ANY NEW FACTS AMOUNTS TO CHANGE OF OPINION. 4. THE ABOVE GROUNDS ARE INDEPENDENT AND WITHOUT PR EJUDICE TO ONE ANOTHER. THE ASSESSEE HAS ALSO FILED FOLLOWING ADDITIONAL G ROUNDS FOR THE SAME YEAR 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO IN MAKING ADDITION / DISALLOWING EXPENDITURE UNDER SECTION 153A OF THE ACT WITHOUT APPRECIATING THE FACT THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH REGARDING THE ADDITIONS MADE I N THE ASSESSMENT ORDER BY THE AO, HENCE ADDITIONS IN THE ASSESSMENT ORDER PASSED U/S 153A OF THE ACT ARE NOT JUSTIFIED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE CIT(A) OUGHT TO HAVE HELD THAT THE ASSESSMENT ORDER UNDER SECTION 153A IS NON EST AND NOT IN ACCORDANCE WITH LAW AND OUGHT TO HAVE SET ASIDE THE ASSESSMENT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE CIT(A) OUGHT TO HAVE HELD THAT THE ASSESSING OFFICER HAD NOT COMPLIED WITH TH E PROVISIONS OF SECTION 1530 OF THE ACT AND HENCE THE ASSESSMENT UNDER SECTION 153A OF THE ACT IS BAD IN LAW. AS STATED EARLIER,GROUNDS OF APPEAL FILED BY THE AS SESSEE ARE ALMOST IDENTICAL TO THE GROUNDS OF AY.S 2003-04TO 2009-10. THE ONLY DIFFERENCE IS T HE AMOUNTS INVOLVED.SIMILARLY,THE ADDITIONAL GROUNDS ARE ALSO SIMILAR.FIRST,WE WOULD TAKE THE APPEAL FOR THE AY.2005-06. BRIEF FACTS: (A.Y.2005-06): 2. A SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT WAS CONDUCTED ON 16.10.2008 IN THE GROUP CASES.THE OFFICE /RESIDENTIAL PREMISES OF THE COMPANY AND ITS DIRECTORS/CONNECTED PERSONS WERE ALSO COVERED.THE ASSESSEE COMPANY IS E NGAGED IN THE BUSINESS OF ICE MANUFACTURING AND RUNNING OF COLD STORAGE.CONSEQUEN T UPON THE SEARCH AND SEIZURE ACTION U/S.132, PROCEEDINGS U/S.153A WERE INITIATED.THE AO COMPLETED THE ASSESSMENT ON 31.12. 2010 U/S.143(3) R.W.S.153A OF THE ACT DETERMINING T HE INCOME OF THE ASSESSEE AT RS.21.44 LACS AGAINST THE RETURNED INCOME OF RS.7.95 LACS.TH E AO HAD PASSED THE ORDER AFTER OBTAINING THE APPROVAL OF ADDL CIT,C.R.-7 MUMBAI,VI DE HIS LETTER DATED 31/12/ 2010. CHALLENGING THE ORDER OF THE AO,IT FILED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA),WHO PARTLY ALLOWED THE APPEAL. 3. AS STATED EARLIER THE ASSESSEE HAD RAISED ADDITIONA L GROUNDS FOR ALL THE AYS. INCLUDING THE AY.UNDER APPEAL.THE ADDITIONAL GROUNDS DEAL WITH A JURISDICTIONAL ISSUE,THEREFORE, WE WOULD DEAL WITH THE ADDITIONAL GROUNDS FIRST.IN THE ADDITIONAL GROUNDS, IT HAS BEEN ARGUED THAT THE ORDER PASSED BY THE AO WAS BAD IN LAW. DURING THE COURSE OF HEARING BEFORE US, THE AUTHORI SED REPRESENTATIVE(AR) STATED THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH REGARDING THE ADDITIONS MADE IN THE ASSESSMENT ORDER, THAT THE ADDITIONS WERE NOT JUSTI FIED, THAT THE ORDER PASSED BY THE AO WAS NON-EST, THAT THE AO HAD NOT COMPLIED WITH THE SECT ION 153D OF THE ACT, THAT IN THE CASE OF SMT.SHREELEKHA DAMANI (ITA NO/4061/MUM/2012 AY 2007 -08 DT. 19.8.2015) THE TRIBUNAL HAD DELIBERATED UPON THE SIMILAR ADDITIONA L GROUND OF APPEAL AND HAD ALLOWED THE APPEAL FILED BY THE ASSESSEE,THAT THE APPROVALS OF THE ADDITIONAL CIT IN BOTH THE CASES WERE SIMILARLY WORDED.HE REFERRED TO THE APPROVALS GRANT ED BY THE ADDL. CIT ON 31.12.2010 WHEREIN THE ADDITIONAL CIT HAD OBSERVED AS UNDER : AS PER THIS OFFICE LETTER DATED 20/12/2010, THE A SSESSING OFFICERS WERE ASKED TO SUBMIT THE DRAFT ORDERS FOR APPROVAL U/S. 153D ON OR BEFORE 24 /12/2010.HOWEVER, THIS DRAFT ORDER HAS BEEN SUBMITTED ON 31/12/2010.HENCE, THERE IS MUCH T IME LEFT TO ANALISE THE ISSUES OF DRAFT ORDER ON MERIT.THEREFORE, THE DRAFT ORDER IS BEING APPROV ED S IT IS SUBMITTED. 2. APPROVAL TO THE ABOVE SAID DRAFT ORDER IS GRANTE D U/S. 153D OF THE I.T. ACT, 1961. HE ALSO RELIED UPON THE CASE OF ALL CARGO GLOBAL LO GISTICS LTD. DELIVERED BY THE HON'BLE BOMBAY HIGH COURT DATED 21/04/2015(372 ITR ..)DEPARTMETNAL REPRESENTATIVE (DR) STATED THAT THE FACTS OF NAVBHARAT GROUP/136/M/13 3 THE CASE UNDER CONSIDERATION ARE DIFFERENT FROM SMT . SHREELEKHA DAMANI (SUPRA), THAT THE ADDITIONS IN THE CASE WERE MADE ON THE BASIS OF SEIZED MATERI AL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT IN THE CASE OF SMT. SHREELEKHA DAMANI (SUPRA) THE ASSESSEE HAD RAISED FOLLOWING ADDITIONAL GROUNDS: 1.ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) OUGHT TO HAVE HELD THAT THE AO HAD NOT COMPLIED WITH THE PROVISIONS OF SEC. 153D OF THE ACT AND HENCE THE ASSESSMENT UNDER SECTION 153A OF THE ACT IS BAD IN LAW. 2.ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW THE CIT(A) OUGHT TO HAVE HELD THE ASSESSMENT ORDER U/S. 153A IS NON EST AND NOT IN AC CORDANCE WITH LAW AND OUGHT TO HAVE SET ASIDE THE ASSESSMENT. IF WE COMPARE THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE IN THE PRESENT APPEAL, WE FIND THAT THERE IS NO DIFFERENCE IN THE ADDITIONAL GROUN DS RAISED IN BOTH THE APPEALS.WE FIND THAT THE TRIBUNAL HAD DEALT THE ISSUE AS UNDER : 5.BRIEFLY STATED THE FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT WAS CARRIED OUT ON 16.10.2008 AND ON SUBSEQUENT DAT ES ON SIMPLEX GROUP OF COMPANIES AND ITS ASSOCIATES. THE OFFICE/RESIDENTIAL PREMISES OF THE COMPANY AND ITS DIRECTORS/CONNECTED PERSONS WERE ALSO COVERED. SIMPLEX GROUP IS ENGAGE D IN THE BUSINESS OF REALITY, PAPER, TEXTILE AND FINANCE. ON THE BASIS OF THE INCRIMINA TING DOCUMENTS/BOOKS OF ACCOUNT FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERATION, ASSESSMENT WAS MADE U/S. 143(3) OF THE ACT R.W. SEC. 153A AND AS PER THE ENDORSEMENT ON PA GE-11 OF THE ASSESSMENT ORDER THIS ORDER IS PASSED WITH THE PRIOR APPROVAL OF THE ADDL. COMM ISSIONER OF INCOME TAX, CENTRAL RANGE-7, MUMBAI. 6.THE ADDITIONAL GROUND RAISED BEFORE US IS AGAINST THIS ENDORSEMENT IN THE ASSESSMENT ORDER AS THE CLAIM IS THAT THE ASSESSING OFFICER HAS NOT COMPLIED WITH THE PROVISIONS OF SEC. 153D AND HENCE THE ASSESSMENT MADE U/S. 153A OF THE ACT IS BAD IN LAW. 7.AT THE VERY OUTSET, THE LD. DEPARTMENTAL REPRESEN TATIVE FURNISHED THE COPY OF THE APPROVAL GIVEN BY ADDL. COMMISSIONER OF INCOME TAX, CENTRAL RANGE-7, MUMBAI WHICH IS ALSO FILED BY THE ASSESSEE IN THE PAPER BOOK AND THE SAME IS EXHI BITED AT PAGE-1 OF THE PAPER BOOK. 8.THE LD. SENIOR ADVOCATE, SHRI JAHANGIR MISTRY VEH EMENTLY SUBMITTED THAT THE SO CALLED APPROVAL BROUGHT ON RECORD CANNOT BE CONSIDERED AS AN APPROVAL WITHIN THE FRAME WORK OF THE PROVISIONS OF SEC. 153D OF THE ACT. THE LD. SR . COUNSEL CONTINUED TO ARGUE THAT THE APPROVAL GRANTED BY THE ADDL CIT IS DEVOID OF APPLI CATION OF MIND AND BY ANY STRETCH OF IMAGINATION THE ORDER MADE U/S. 143(3) R.W. SEC. 15 3A OF THE ACT CANNOT BE SAID TO BE MADE AFTER RECEIVING THE APPROVAL AS PER THE PROVISIONS OF SEC. 153D OF THE ACT. THE ENTIRE ARGUMENTS/SUBMISSIONS OF LD. SHRI MISTRY REVOLVED A ROUND THIS APPROVAL LETTER DATED 31.12.2010. 9.PER CONTRA, DEFENDING THE ASSESSMENT ORDER, THE L D. DEPARTMENTAL REPRESENTATIVE STATED THAT THE AO HAS MADE THE ASSESSMENT ORDER AFTER GET TING THE APPROVAL FROM THE RANGE ADDL. CIT AND THEREFORE THE MANDATE OF SEC. 153D OF THE A CT HAS BEEN FULFILLED AND THERE IS NO ERROR IN LAW AND THE ASSESSMENT IS TO BE UPHELD. IT IS T HE SAY OF THE LD. DR THAT THE ISSUES RAISED VIDE ADDITIONAL GROUND REQUIRE INTERPRETATION AND T HEREFORE THE TRIBUNAL SHOULD NOT TAKE ANY INTERPRETATION WHICH WOULD DEFEAT THE PROVISIONS OF THE LAW. 10.WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL CONTENTIONS. WE HAVE ALSO GONE THROUGH THE APPROVAL OF THE ADDL CIT, CENTRAL RANGE -7, MUMBAI CAREFULLY. THE SAID APPROVAL READ AS UNDER: NO. ADDL CIT/CENT. RG-7/APPROVAL 153D/2010-11/366 DT. 31.12.2010 TO: THE DCIT (OSD)-1, MUMBAI SUB: APPROVAL U/S. 153D OF DRAFT ORDER U/S. 143(3) R.W.S. 153A IN THE CASE OF SMT. SHREELEKHA NANDAN DAMANI FOR A.Y. 2007-08 REG. REF: NO. DCIT (OSD)-1/CR-7/APPR/2010-11 DT. 31.212. 2010 NAVBHARAT GROUP/136/M/13 4 . AS PER THIS OFFICE LETTER DATED 20.12.2010, THE AS SESSING OFFICERS WERE ASKED TO SUBMIT THE DRAFT ORDERS FOR APPROVAL U/S. 153D ON OR BEFORE 24 .12.2010. HOWEVER, THIS DRAFT ORDER HAS BEEN SUBMITTED ON 31.12.2010. HENCE THERE IS NO MU CH TIME LEFT TO ANALISE THE ISSUES OF DRAFT ORDER ON MERIT. THEREFORE, THE DRAFT ORDER IS BEIN G APPROVED AS IT IS SUBMITTED. APPROVAL TO THE ABOVE SAID DRAFT ORDER IS GRANTED U /S. 153D OF THE I.T. ACT, 1961. 11.THE CONTENTS OF THIS APPROVAL ARE RES IPSA LOQU ITER IN AS MUCH AS THE LANGUAGE IS SPEAKING FOR ITSELF. THE ADDL CIT SAYS THAT THE DR AFT ORDER WAS PLACED BEFORE HIM ON 31.12.2010. HE FURTHER SAYS THAT THERE WAS NO MUCH TIME LEFT TO ANALYZE THE ISSUE OF DRAFT ORDER ON MERIT, THEREFORE, THE SAID ORDER IS APPROV ED AS IT IS. THE APPROVAL IS ALSO DATED 31.12.2010. 11.1.THE ISSUE WHICH WE HAVE TO DECIDE IS CAN THIS APPROVAL BE TREATED AS FULFILLING THE MANDATE OF THE PROVISIONS OF SEC. 153D OF THE ACT V IS--VIS THE LEGISLATIVE INTENT OF INSERTING THE SAID SECTION IN THE STATUTE. SEC. 153D READ AS UNDER: NO ORDER OF ASSESSMENT OR REASSESSMENT SHALL BE PA SSED BY AN ASSESSING OFFICER BELOW THE RANK OF JOINT COMMISSIONER IN RES PECT OF EACH ASSESSMENT YEAR REFERRED TO IN CLAUSE (B) OF SECTION 153A OR THE AS SESSMENT YEAR REFERRED TO IN CLAUSE (B) OF SUB-SECTION (1) OF SECTION 153B, EXCEPT WITH THE PRIOR APPROVAL OF THE JOINT COMMISSIONER. PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY WHERE THE ASSESSMENT OR REASSESSMENT ORDER, AS THE CASE MAY B E, IS REQUIRED TO BE PASSED BY THE ASSESSING OFFICER WITH THE PRIOR APPROVAL OF THE CO MMISSIONER UNDER SUB-SECTION (12) OF SECTION 144BA. 11.2. THE LEGISLATIVE INTENT CAN BE GATHERED FROM T HE CBDT CIRCULAR NO. 3 OF 2008 DATED 12.3.2008 WHICH READ AS UNDER: 50. ASSESSMENT OF SEARCH CASES ORDERS OF ASSESSMEN T AND REASSESSMENT TO BE APPROVED BY THE JOINT COMMISSIONER. 50.1 THE EXISTING PROVISIONS OF MAKING ASSESSMENT A ND REASSESSMENT IN CASES WHERE SEARCH HAS BEEN CONDUCTED UNDER SECTION 132 OR REQU ISITION IS MADE UNDER SECTION 132A. DOES NOT PROVIDE FOR ANY APPROVAL FOR SUCH AS SESSMENT. 50.2 A NEW SECTION 153D HAS BEEN INSERTED TO PROVID E THAT NO ORDER OF ASSESSMENT OR REASSESSMENT SHALL BE PASSED BY AN ASSESSING OFFICE R BELOW THE RANK OF JOINT COMMISSIONER EXCEPT WITH THE PREVIOUS APPROVAL OF T HE JOINT COMMISSIONER. SUCH PROVISION HAS BEEN MADE APPLICABLE TO ORDERS OF ASS ESSMENT OR REASSESSMENT PASSED UNDER CLAUSE (B) OF SECTION 153A IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSME NT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDER SECTION 132 OR REQUISITION IS MADE UNDER SECTION 132A. THE PROVISION HAS ALSO BEEN MADE APPL ICABLE TO ORDERS OF ASSESSMENT PASSED UNDER CLAUSE (B) OF SECTION 153B IN RESPECT OF THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SEARCH IS CONDUCTED UNDE R SECTION 132 OR REQUISITIONED IS MADE UNDER SECTION 132A. 50.3 APPLICABILITY- THESE AMENDMENTS WILL TAKE EF FECT FROM THE 1ST DAY OF JUNE, 2007. 11.3.THE LEGISLATIVE INTENT IS CLEAR INASMUCH AS PR IOR TO THE INSERTION OF SEC.153D, THERE WAS NO PROVISION FOR TAKING APPROVAL IN CASES OF ASSESS MENT AND REASSESSMENT IN CASES WHERE SEARCH HAS BEEN CONDUCTED. THUS, THE LEGISLATURE W ANTED THE ASSESSMENTS/REASSESSMENTS OF SEARCH AND SEIZURE CASES SHOULD BE MADE WITH THE PR IOR APPROVAL OF SUPERIOR AUTHORITIES WHICH ALSO MEANS THAT THE SUPERIOR AUTHORITIES SHOU LD APPLY THEIR MINDS ON THE MATERIALS ON THE BASIS OF WHICH THE OFFICER IS MAKING THE ASSESS MENT AND AFTER DUE APPLICATION OF MIND AND ON THE BASIS OF SEIZED MATERIALS, THE SUPERIOR AUTH ORITIS HAVE TO APPROVE THE ASSESSMENT ORDER. 11.4. THE QUESTION BEFORE US IS HAS THIS BEEN DON E IN THE PRESENT CASE. THE LANGUAGE OF THE APPROVAL LETTER SAYS NO. LET US NOW CONSIDER SOME ANALOGOUS PROVISION IN THE ACT. SEC. 142(2A): 142(2A) IF, AT ANY STAGE OF THE PROCEEDINGS BEFORE HIM, THE ASSESSING OFFICER, HAVING REGARD TO THE NATURE AND COMPLEXITY OF THE ACCOUNTS, VOLUME OF THE NAVBHARAT GROUP/136/M/13 5 ACCOUNTS, DOUBTS ABOUT THE CORRECTNESS OF THE ACCOU NTS, MULTIPLICITY OF TRANSACTIONS IN THE ACCOUNTS OR SPECIALISED NATURE OF BUSINESS ACTI VITY OF THE ASSESSEE, AND THE INTERESTS OF THE REVENUE, IS OF THE OPINION THAT IT IS NECESSARY SO TO DO, HE MAY, WITH THE PREVIOUS APPROVAL OF THE CHIEF COMMISSIONER OR CHIE F COMMISSIONER OR COMMISSIONER, DIRECT THE ASSESSEE TO GET THE ACCOUN TS AUDITED BY AN ACCOUNTANT, AS DEFINED IN THE EXPLANATION BELOW SUB-SECTION (2) OF SECTION 288, NOMINATED BY THE COMMISSIONER IN THIS BEHALF AND TO FURNISH A REPORT OF SUCH AUDIT IN THE PRESCRIBED FORM DULY SIGNED AND VERIFIED BY SUCH ACCOUNTANT AN D SETTING FORTH SUCH PARTICULARS AS MAY BE PRESCRIBED AND SUCH OTHER PARTICULARS AS THE ASSESSING OFFICER MAY REQUIRE. IN THIS SECTION ALSO THE AO MAY DIRECT THE ASSESSEE TO GET THE ACCOUNTS AUDITED BY AN ACCOUNTANT WITH THE PREVIOUS APPROVAL OF THE PRINCI PAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER. THIS PROVISION HAS BEEN ELABORATELY CONSIDERED BY THE HONBLE SUPREME COURT IN THE CASE OF SAHARA INDIA VS CIT 169 TAX MAN 328 WHEREIN AT PARA-6, THE HONBLE SUPREME COURT OBSERVED AS UNDER: A BARE PERUSAL OF THE PROVISIONS OF SUB-SECTION (2 A) OF THE ACT WOULD SHOW THAT THE OPINION OF THE ASSESSING OFFICER THAT IT I S NECESSARY TO GET THE ACCOUNTS OF ASSESSEE AUDITED BY AN ACCOUNTANT HAS TO BE FORMED ONLY BY HAVING REGARD TO: (I) THE NATURE AND COMPLEXITY OF THE ACCOUNTS OF THE ASSESS EE; AND (II) THE INTERESTS OF THE REVENUE. THE WORD 'AND' SIGNIFIES CONJUNCTION AND N OT DISJUNCTION. IN OTHER WORDS, THE TWIN CONDITIONS OF 'NATURE AND COMPLEXITY OF TH E ACCOUNTS' AND 'THE INTERESTS OF THE REVENUE' ARE THE PREREQUISITES FOR EXERCISE OF POWER UNDER SECTION 142(2A) OF THE ACT. UNDOUBTEDLY, THE OBJECT BEHIND ENACTING THE SA ID PROVISION IS TO ASSIST THE ASSESSING OFFICER IN FRAMING A CORRECT AND PROPER A SSESSMENT BASED ON THE ACCOUNTS MAINTAINED BY THE ASSESSEE AND WHEN HE FINDS THE AC COUNTS OF THE ASSESSEE TO BE COMPLEX, IN ORDER TO PROTECT THE INTERESTS OF THE R EVENUE, RECOURSE TO THE SAID PROVISION CAN BE HAD. THE WORD 'COMPLEXITY' USED IN SECTION 1 42(2A) IS NOT DEFINED OR EXPLAINED IN THE ACT. AS OBSERVED IN SWADESHI COTTO N MILLS CO. LTD. V. CIT [1988] 171 ITR 634 1 (ALL.), IT IS A NEBULOUS WORD. ITS DI CTIONARY MEANING IS: 'THE STATE OR QUALITY OF BEING INTRICATE OR COMPLEX OR THAT IS DI FFICULT TO UNDERSTAND. HOWEVER, ALL THAT IS DIFFICULT TO UNDERSTAND SHOULD NOT BE REGAR DED AS COMPLEX. WHAT IS COMPLEX TO ONE MAY BE SIMPLE TO ANOTHER. IT DEPENDS UPON ONES LEVEL OF UNDERSTANDING OR COMPREHENSION. SOMETIMES, WHAT APPEARS TO BE COMPLE X ON THE FACE OF IT, MAY NOT BE REALLY SO IF ONE TRIES TO UNDERSTAND IT CAREFULLY.' THUS, BEFORE DUBBING THE ACCOUNTS TO BE COMPLEX OR DIFFICULT TO UNDERSTAND, THERE HAS TO BE A GENUINE AND HONEST ATTEMPT ON THE PART OF THE ASSESSING OFFICER TO UNDERSTAND ACC OUNTS MAINTAINED BY THE ASSESSEE; APPRECIATE THE ENTRIES MADE THEREIN AND IN THE EVEN T OF ANY DOUBT, SEEK EXPLANATION FROM THE ASSESSEE. BUT OPINION REQUIRED TO BE FORME D BY THE ASSESSING OFFICER FOR EXERCISE OF POWER UNDER THE SAID PROVISION MUST BE BASED ON OBJECTIVE CRITERIA AND NOT ON THE BASIS OF SUBJECTIVE SATISFACTION. THERE IS N O GAINSAYING THAT RECOURSE TO THE SAID PROVISION CANNOT BE HAD BY THE ASSESSING OFFICER ME RELY TO SHIFT HIS RESPONSIBILITY OF SCRUTINIZING THE ACCOUNTS OF AN ASSESSEE AND PASS O N THE BUCK TO THE SPECIAL AUDITOR. SIMILARLY, THE REQUIREMENT OF PREVIOUS APPROVAL OF THE CHIEF COMMISSIONER OR THE COMMISSIONER IN TERMS OF THE SAID PROVISION BEING A N INBUILT PROTECTION AGAINST ANY ARBITRARY OR UNJUST EXERCISE OF POWER BY THE ASSESS ING OFFICER, CASTS A VERY HEAVY DUTY ON THE SAID HIGH RANKING AUTHORITY TO SEE TO I T THAT THE REQUIREMENT OF THE PREVIOUS APPROVAL, ENVISAGED IN THE SECTION IS NOT TURNED INTO AN EMPTY RITUAL. NEEDLESS TO EMPHASISE THAT BEFORE GRANTING APPROVAL , THE CHIEF COMMISSIONER OR THE COMMISSIONER, AS THE CASE MAY BE, MUST HAVE BEFORE HIM THE MATERIAL ON THE BASIS WHEREOF AN OPINION IN THIS BEHALF HAS BEEN FORMED B Y THE ASSESSING OFFICER. THE APPROVAL MUST REFLECT THE APPLICATION OF MIND TO TH E FACTS OF THE CASE. 11.5.THUS, EVEN THE HONBLE SUPREME COURT HAS CLEAR LY LAID DOWN THAT THE APPROVAL MUST REFLECT THE APPLICATION OF MIND TO THE FACTS OF THE CASE. NAVBHARAT GROUP/136/M/13 6 11.6.SIMILARLY, THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF PEERLESS GENERAL FINANCE & INVESTMENT CO. LTD. VS DCIT 236 ITR 671 HAS MADE TH E FOLLOWING OBSERVATIONS WHICH ARE PERTINENT TO THE FACTS OF THE CASE IN HAND BEFORE U S. THE FACTUAL MATRIX OF THE MATTER CLEARLY SHOWS THA T A PROPOSAL WAS MADE ON MARCH 10, 1998, AND NO PRIOR APPROVAL THEREFORE WAS GRANT ED BY THE CHIEF COMMISSIONER OF INCOME-TAX BUT MERELY ONE G. P. AGARWAL WAS NOMINAT ED. AN ARGUMENT HAS BEEN ADVANCED TO THE EFFECT THAT BY MAKING SUCH A NOMINATION, APPROVAL WILL BE DEEMED TO HAVE BEEN GRANTED. THE A NSWER TO THE SAID CONTENTION MUST BE RENDERED IN THE NEGATIVE. THE CHIEF COMMISS IONER OF INCOME-TAX BEFORE GRANTING SUCH APPROVAL MUST HAVE BEFORE HIM THE MAT ERIALS ON THE BASIS WHEREOF AN OPINION HAD BEEN FORMED. A PRIOR APPROVAL CAN BE GR ANTED ONLY WHEN THE MATERIALS FOR APPOINTMENT OF THE EXTRAORDINARY PROCEDURE IS R EQUIRED TO BE TAKEN BY THE ASSESSING OFFICER. THE ASSESSING OFFICER, THEREFORE , WAS REQUIRED TO PLACE ALL MATERIALS BEFORE THE COMMISSIONER OF INCOME-TAX OR THE CHIEF COMMISSIONER OF INCOME- TAX, AS THE CASE MAY BE, TO SHOW THAT HE IN TENDS TO TAKE RECOURSE TO THE SAID PROVISION HAVING REGARD TO THE NATURE AND COMPLEXIT Y OF THE ACCOUNTS OF THE ASSESSEE AND THE INTERESTS OF THE REVENUE. NO SUCH MATERIALS HAD BEEN PLACED BEFORE THE CHIEF COMMISSIONER OF INCOME-TAX. IT FURTHER APPEARS THAT EVEN NO PREVIOUS APPROVAL W AS SOUGHT FOR BUT MERELY A PROPOSAL WAS PLACED FOR PERUSAL OF THE CHIEF COMMIS SIONER OF INCOME-TAX AND FOR APPOINTMENT OF A SPECIAL AUDITOR. THE CHIEF COMMISS IONER OF INCOME-TAX, THEREFORE, DID NOT APPLY HIS MIND AT ALL AS REGARDS THE PRE-RE QUISITE FOR GRANT OF PREVIOUS APPROVAL AND MECHANICALLY APPOINTED SRI G. P. AGARW AL, AS A SPECIAL AUDITOR. THE SAID ORDER DEPICTS A TOTAL NON-APPLICATION OF MIND ON THE PART OF THE ASSESSING OFFICER AS ALSO THE CHIEF COMMISSIONER OF INCOME-TAX. 11.7. ANOTHER SECTION RELEVANT TO THE FACTS IN ISSUE IS SEC. 158BG WHICH READ AS UNDER: THE ORDER OF ASSESSMENT FOR THE BLOCK PERIOD SHALL BE PASSED BY AN ASSESSING OFFICER NOT BELOW THE RANK OF AN ASSISTANT COMMISSI ONER OR DEPUTY COMMISSIONER OR AN ASSISTANT DIRECTOR OR DEPUTY DIRECTOR, AS THE CA SE MAY BE: PROVIDED THAT NO SUCH ORDER SHALL BE PASSED WITHOUT THE PREVIOUS APPROVAL OF-- (A) THE COMMISSIONER OR THE DIRECTOR, AS THE CASE M AY BE, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OT HER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION 132A, AFTER THE 30TH DA Y OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY, 1997; (B) THE JOINT COMMISSIONER OR THE JOINT DIRECTOR, A S THE CASE MAY BE, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BOOKS OF ACCO UNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION 132A, ON OR AFTER THE 1 ST DAY OF JANUARY, 1997. 11.8. IN THIS SECTION ALSO IT IS PROVIDED THAT T HE ORDER CANNOT BE PASSED WITHOUT THE PREVIOUS APPROVAL. THIS SECTION WAS THOROUGHLY SCRUTINIZED BY THE TRIBUNAL MADRAS BENCH IN THE CASE OF KIRTILAL KALIDAS & CO. VS DCIT 67 ITD 573, AT P ARA-41 OF ITS ORDER THE OBSERVATIONS OF THE TRIBUNAL ARE AS UNDER: IN THESE CASES, THE COMMISSIONER HAS PASSED AN ORD ER GRANTING APPROVAL UNDER SECTION 158BG OF THE ACT THROUGH A SINGLE ORDER PAS SED ON 31-3-1997 WITHOUT GIVING ANY REASON WHATSOEVER. AS WE HAVE RECORDED ELSEWHER E ABOVE, THE DRAFT ASSESSMENT ORDERS OF THE BLOCK PERIOD IN ALL THESE CASES WERE MADE ON 31-3-1997 AND ON THE VERY SAME DAY, I.E., ON 31-3-1997 THE COMMISSIONER GRANT S APPROVAL AND THAT TOO WITHOUT GIVING OR RECORDING ANY REASONS WHATSOEVER. THE APP ROVAL ORDER DOES NOT DISCLOSE THE POINTS WHICH WERE CONSIDERED BY THE COMMISSIONER AN D THE REASONS FOR ACCEPTING THEM. IN OUR VIEW, THIS IS TOTALLY AN UNSATISFACTOR Y METHOD OF GRANTING APPROVAL IN EXERCISE OF JUDICIAL POWER VESTED IN THE COMMISSION ER. 11.9.THIS DECISION OF THE TRIBUNAL WAS CONSIDERED B Y ALLAHABAD BENCH OF THE TRIBUNAL IN THE CASE OF VERMA ROADWAYS VS ACIT 75 ITD 183 WHEREIN ALSO THE ASSESSEE- APPELLANT HAS CHALLENGED THE VALIDITY OF APPROVAL TO THE ASSESSM ENT ORDER ACCORDED BY THE CIT KANPUR. THE TRIBUNAL AT PARA-47 HAS HELD AS UNDER: NAVBHARAT GROUP/136/M/13 7 COMING TO THE ASPECT OF THE APPLICATION OF MIND, W HILE GRANTING APPROVAL, WE ARE OF THE VIEW THAT REQUIREMENT OF APPROVAL PRE-SUPPOSES A PROPER AND THOROUGH SCRUTINY AND APPLICATION OF MIND. IN THE CASE OF KIRTILAL K ALIDAS & CO. (SUPRA), THE I.T.A.T MADRAS BENCH A HAS OBSERVED THAT THE FUNCTION T O BE PERFORMED BY THE COMMISSIONER IN GRANTING PREVIOUS APPROVAL REQUIRES AN ENQUIRY AND JUDICIAL APPROACH ON THE ENTIRE FACTS, MATERIALS AND EVIDENC E. IT HAS BEEN FURTHER OBSERVED THAT IN LAW WHERE ANY ACT OR FUNCTION REQUIRES APPL ICATION OF MIND AND JUDICIAL DIKSCRETION OR APPROACH BY ANY AUTHORITY, IT PARTAK ES AND ASSUMES THE CHARACTER AND STATUS OF A JUDICIAL OR AT LEAST QUASI-JUDICIAL ACT , PARTICULARLY BECAUSE THEIR ACT, FUNCTION, IS LIKELY TO AFFECT THE RIGHTS OF AFFECTE D PER SONS. 11.10.SIMILARLY, U/S. 151 OF THE ACT IT IS PROVIDED THAT NO NOTICE SHALL BE ISSUED U/S. 148 UNLESS THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSI ONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER IS SATISFIED THAT IT IS A FIT CASE FO R THE ISSUE OF SUCH NOTICE. THE SANCTION UNDER THIS SECTION WAS CONSIDERED BY THE TRIBUNAL, MUMBAI BENCH IN THE CASE OF SHRI AMARLAL BAJAJ IN ITA NO. 611/M/2004 WHEREIN AT PARA-8, THE TRIBUN AL HAS CONSIDERED THE DECISION OF THE HONBLE HIGH COURT OF DELHI BENCH IN THE CASE OF UN ITED ELECTRICAL CO. 258 ITR 317 WHICH READ AS UNDER: HONBLE DELHI HIGH COURT IN THE CASE OF UNITED ELEC TRICAL CO. PVT. LTD. VS CIT 258 ITR 317 HAS HELD THAT THE PROVISO TO SUB-SECTION ( 1) OF SECTION151OF THE ACT PROVIDES THAT AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, NOTICE UNDER SECTION 148 SHALL NOT BE ISSUED UNLESS THE CH IEF COMMISSIONER OR THE COMMISSIONER, AS THE CASE MAY BE, IS SATISFIED, ON THE REASONS RECORDED BY THE ASSESSING OFFICER CONCERNED, THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE. THESE ARE SOME IN-BUILTS SAFEGUARDS TO PREVENT ARBITRARY EXER CISE OF POWER BY AN 7 ITA NOS.534 & 611/M/04 ASSESSING OFFICER TO FIDDLE WITH THE COM PLETED ASSESSMENT. THE HONBLE HIGH COURT FURTHER OBSERVED THAT WHAT DISTURBS US MORE IS THAT EVEN THE ADDITIONAL COMMISSIONER HAS ACCORDED HIS APPROVAL FOR ACTION U NDER SECTION 147 MECHANICALLY. WE FEEL THAT IF THE ADDITIONAL COMMISSIONER HAD CAR ED TO GO THROUGH THE STATEMENT OF THE SAID PARTIES, PERHAPS HE WOULD NOT HAVE GRANTED HIS APPROVAL, WHICH WAS MANDATORY IN TERMS OF THE PROVISO TO SUB-SECTION (1 ) OF SECTION 151 OF THE ACT AS THE ACTION UNDER SECTION 147 WAS BEING INITIATED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE POWER VEST ED IN THE COMMISSIONER TO GRANT OR NOT TO GRANT APPROVAL IS COUPLED WITH A DUTY. TH E COMMISSIONER IS REQUIRED TO APPLY HIS MIND TO THE PROPOSAL PUT UP TO HIM FOR AP PROVAL IN THE LIGHT OF THE MATERIAL RELIED UPON BY THE ASSESSING OFFICER. THE SAID POWE R CANNOT BE EXERCISED CASUALLY AND IN A ROUTINE MANNER. WE ARE CONSTRAINED TO OBSE RVE THAT IN THE PRESENT CASE THERE HAS BEEN NO APPLICATION OF MIND BY THE ADDITIONAL C OMMISSIONER BEFORE GRANTING THE APPROVAL. 12.COMING TO THE FACTS OF THE CASE IN HAND IN THE L IGHT OF THE ANALYTICAL DISCUSSION HEREINABOVE AND AS MENTIONED ELSEWHERE, THE ADDL. C OMMISSIONER HAS SHOWED HIS INABILITY TO ANALYZE THE ISSUES OF DRAFT ORDER ON MERIT CLEARLY STATING THAT NO MUCH TIME IS LEFT, INASMUCH AS THE DRAFT ORDER WAS PLACED BEFORE HIM ON 31.12.2 010 AND THE APPROVAL WAS GRANTED ON THE VERY SAME DAY. CONSIDERING THE FACTUAL MATRIX OF THE APPROVAL LETTER, WE HAVE NO HESITATION TO HOLD THAT THE APPROVAL GRANTED BY THE ADDL. COMM ISSIONER IS DEVOID OF ANY APPLICATION OF MIND, IS MECHANICAL AND WITHOUT CONSIDERING THE MA TERIALS ON RECORD. IN OUR CONSIDERED OPINION, THE POWER VESTED IN THE JOINT COMMISSIONER /ADDL COMMISSIONER TO GRANT OR NOT TO GRANT APPROVAL IS COUPLED WITH A DUTY. THE ADDL CO MMISSIONER/JOINT COMMISSIONER IS REQUIRED TO APPLY HIS MIND TO THE PROPOSALS PUT UP TO HIM FOR APPROVAL IN THE LIGHT OF THE MATERIAL RELIED UPON BY THE AO. THE SAID POWER CAN NOT BE EXERCISED CASUALLY AND IN A ROUTINE MANNER. WE ARE CONSTRAINED TO OBSERVE THA T IN THE PRESENT CASE, THERE HAS BEEN NO APPLICATION OF MIND BY THE ADDL. COMMISSIONER BEFO RE GRANTING THE APPROVAL. THEREFORE, WE HAVE NO HESITATION TO HOLD THAT THE ASSESSMENT ORDE R MADE U/S. 143(3) OF THE ACT R.W. SEC. 153A OF THE ACT IS BAD IN LAW AND DESERVES TO BE AN NULLED. THE ADDITIONAL GROUND OF APPEAL IS ALLOWED. NAVBHARAT GROUP/136/M/13 8 13.THE LD. DEPARTMENTAL REPRESENTATIVE HAS STRONGLY RELIED UPON THE DECISION OF THE TRIBUNAL MUMBAI BENCH IN THE CASE OF RAFIQUE ABDUL HAMID KO KANI VS DCIT 113 TAXMAN 37, HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF RISH ABCHAND BHANSALI VS DCIT 136 TAXMAN 579 AND HONBLE HIGH COURT OF MADRAS IN THE CASE OF SAKTHIVEL BANKERS VS ASSTT. COMMISSIONER 124 TAXMAN 227. 13.1.WE HAVE CAREFULLY PERUSED THE DECISIONS PLACED ON RECORD BY THE LD. DR. WE FIND THAT ALL THE DECISIONS RELIED UPON BY THE LD. DR ARE MISPLAC ED INASMUCH AS ALL THESE DECISIONS RELATE TO THE ISSUE WHETHER THE JOINT CIT/CIT HAS TO GIVE AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE GRANTING THE APPROVAL. THIS IS NOT THE ISSUE BEFORE US AS THE LD. COUNSEL HAS NEVER ARGUED THAT THE ASSESSEE WAS NOT GIVEN ANY OP PORTUNITY OF BEING HEARD. THESE DECISIONS THEREFORE WOULD NOT DO ANY GOOD TO THE REVENUE. 14.SINCE WE HAVE ANNULLED THE ASSESSMENT ORDER, WE DO NOT FIND IT NECESSARY TO DECIDE THE ISSUES RAISED ON MERITS OF THE CASE. 15.BEFORE PARTING WITH THE ISSUES, THERE WAS A APPR EHENSION IN OUR MIND AS TO WHAT WILL HAPPEN IN SEARCH CASES IF THE ORDER IS ANNULLED AS DONE IN THE PRESENT CASE. OUR APPREHENSION IS ANSWERED BY THE PROVISIONS OF SEC. 153A(2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF ASSESS MENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN ANNULLED IN APPEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTION ( 1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHI CH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SECTION (1), SHALL STAND REVIVED WIT H EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE COMMISSIONER: THUS THE AO IS AT LIBERTY TO TAKE ANY COURSE OF AC TION AS PER THE PROVISIONS OF THE LAW. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. RESPECTFULLY FOLLOWING THE ABOVE WE ALLOW THE APPEA L FILED BY THE ASSESSEE.AS STATED IN PARAGRAPH NO.15 OF THE ABOVE ORDER OF THE TRIBUNAL, THE AO WOULD BE AT LIBERTY TO TAKE ANY ACTION AS PER THE PROVISIONS OF LAW. ITA NOS.136-137/MUM/2013 A.Y.03-02 AND 04-05 AND ITA NO.148-51/MUM/2013 A.YS.06-07 TO 09-10: THE FACTS AND CIRCUMSTANCES OF OTHER AYS INVOLVED A RE SAME AS AY 2005-06.THEREFORE, FOLLOWING THE ORDER OF THAT AY, WE ALLOW THE APPEAL OF THE ASSESSEE FOR ALL AYS. AS A RESULT APPEALS FILED BY THE ASSESSEE STAND AL LOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST OCTOBER,2015. 01. ,2015 SD/- SD/- ( !'# / SAKTIJIT DEY) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /MUMBAI, /DATE: 01. 1 0. 2015 . . . .. . JV.SR.PS. +# ,&# / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ $ & , 4. THE CONCERNED CIT / $ & 5. DR A BENCH, ITAT, MUMBAI / ') , , . . . 6. GUARD FILE/ (, //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.