GITANJALI INFRATECH LTD, MUMBAI V. ACIT CEN CIR 2, MUMBAI

ITA 1366/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0557 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 27-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 11-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y K BHASKARDR
• Assessee Lawyers: K GOPAL MS NEHA PARANJPE
• Keywords: Business income; Depreciation; Search and seizure; Document seized; Rule of consistency; Competent authority; Documents seized; Reassessment proceedings
• Section: 143(3)

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -GBENCH MUMBAI , . . , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND C. N. PRASAD,JUDICIAL MEMBER ./I.T.A./1366/MUM/2016, /AY.: 2008-09 ./I.T.A./3486/MUM/2016, /AY.: 2010-11 ./I.T.A./3487/MUM/2016, /AY.: 2011-12 M/S. GITANJALI INFRATECH LTD. A-1, 7TH FLOOR, LAXMI TOWER, G BLOCK BANDRA KURLA COMPLEX, BANDRA EAST MUMBAI-400 051. PAN:AACCG 7677 G VS. ACIT, CENTRAL CIRCLE-1(2), 9TH FLOOR, OLD CGO BUILDING, MK ROAD MUMBAI-400 020. ( /APPELLANT) ( / RESPONDENT) / REVENUE BY: SHRI Y.K. BHASKAR-DR /ASSESSEE BY: SHRI K. GOPAL/MS.NEHA PARANJPE / DATE OF HEARING: 15/11/2017 / DATE OF PRONOUNCEMENT: 07/02/2018 , / PER RAJENDRA A.M. - CHALLENGING THE ORDER DATED 28/4/2016 OF THE CIT(A )- 47,MUMBAI,THE ASSESSEE HAS FILED PRESENT APPEALS FOR THE ABOVE MENTIONED AY.S (AY.S) .THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF RESIDENTIAL/COMMERCIAL BUILDINGS.DETAILS OF FILING OF RETURNS, RETURNED INCOMES,ASSESSMENT DATES ETC., CAN BE SUMM ARISED AS UNDER: A.Y. ROI FILED ON RETURNED INCOME ASSESSMENT DT. AS SESSED INCOME 2008-09 3.12.2013 RS.6,41,16,960/- 20/03/2014 RS.6. 46 CRORES 2010-11 30/11/12 RS.75,91,149/- 20/03/2014 RS.7.77 LAKHS 2011-12 30/11/2012 RS.31,54,224/- 20/03/2014 RS.17. 68 LAKHS 2. VIDE ITS APPLICATIONS,DTD.07/09/2017,THE ASSESSEE H AS REQUESTED FOR ADMITTING THAT ADDITIONAL GROUND FILED BY IT FOR ALL THE THREE AY. S.IT WAS STATED IN THE APPLICATIONS THAT ADDITIONAL GROUNDS WERE OF LEGAL NATURE AND THAT TH EY WENT TO THE ROOT OF THE MATTER.BEFORE US,THE AUTHORISED REPRESENTATIVE MADE THE SAME SUBM ISSIONS THAT ARE PART OF THE APPLICATIONS.THE DEPARTMENTAL REPRESENTATIVE(DR)LEF T THE ISSUE TO THE DISCRETION OF THE BENCH. WE HAVE GONE THROUGH THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE AND FIND THAT THE SAME ARE OF LEGAL NATURE AND GO TO THE VERY ROOT OF THE MATTER.IN THE ADDITIONAL GROUND THE ASSESSEE HAD CHALLENGED THE ACTION TAKEN BY THE AO U/S. 153C C OF THE ACT.THEREFORE,WE ADMIT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE FOR ALL T HE THREE YEARS. THE ADDITIONAL GROUNDS READ 1366/M/16;3486-87/M/16- M/S. GITANJALI INFRATECH LTD. 2 AS UNDER: 1. THE NOTICE DATED 22.10.2012 ISSUED UNDER SECTIO N 153C AND THE SUBSEQUENT ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S 153C ARE BA D IN LAW AS THE MATERIAL SEIZED DURING THE COURSE OF SEARCH DOES NOT REVEAL ANY UNDISCLOSE D INCOME OF THE APPELLANT. THUS, THE ASSESSMENT PROCEEDINGS UNDER SECTION 153C OF THE AC T IS VOID AB INITIO AND THE SAME MAY BE QUASHED. 2. IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOU ND DURING THE COURSE OF SEARCH AGAINST THE APPELLANT THE ASSESSMENT ORDER FRAMED UNDER SECTION 143(3) R.W.S 153C IS BEYOND JURISDICTION. HENCE, THE SAME MAY BE QUASHED. 3. THE LD.A.O. IS NOT JUSTIFIED IN MAKING ADDITIONS AND DISALLOWANCES DEHORS OF THE SEIZED MATERIAL WHILE CONDUCTING ASSESSMENT PURSUANT TO NO TICE UNDER SECTION 153C IS NOT AT ALL JUSTIFIED AND THE SAME MAY BE DELETED. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY OF THE ABOVE GROUNDS OF APPEAL. 3. BEFORE PROCEEDINGS FURTHER,WE WOULD LIKE TO TAKE NO TE OF THE BRIEF FACTS OF THE MATTERS BEFORE US.ASSESSEE-COMPAY IS PART OF GITANJALI GROU P.A SEARCH ACTION U/S.132 (1) AND SURVEY ACTION U/S.133A OF THE ACT WERE INITIATED IN THE GR OUP CASES ON 29 /11/2011.DURING THE PROCEEDINGS,SEIZED MATERIAL BELONGING TO THE ASSESS EE WAS FOUND AND ACCORDINGLY PROCEEDINGS U/S.153C WERE INITIATED.THE ASSESSING OFFICERS (AO. S)COMPLETED THE SCRUTINY ASSESSMENTS, AS STATED IN THE FIRST PARAGRAPH OF OUR ORDER.THEY DIS ALLOWED THE EXPENSES UNDER THE HEADS PERSONNEL EXPENSES,OFFICE EXPENSES,DEPRECIATION, BA NK CHARGES AND INTEREST ETC.,COMPRISING BUSINESS LOSS. 4. DURING THE APPELLATE PROCEEDINGS FOR THE AY. 2011-1 2, THE FIRST APPELLATE AUTHORITY (FAA) OBSERVED THAT THE ASSESSEE HAD SHOWN OTHER INCOME A T RS. 1.19 CRORES,THAT IT HAD CLAIMED EXPENSES AGAINST THE SAID INCOME DECLARING LOSS OF RS. 31.54 LAKHS, THAT THE AO HAD EXAMINED THE ELIGIBILITY OF EXPENSES U/S.57 (III) OF THE ACT , THAT HE HAD OBSERVED THAT VARIOUS EXPENSES CLAIMED BY THE ASSESSEE HAD RESULTED IN BUSINESS LO SS, THAT THE AO HAD GIVEN A FINDING THAT ASSESSEE HAD NOT SHOWN ANY BUSINESS INCOME DURING T HE YEAR, THAT THE ASSESSEE HAD SUBMITTED THAT EXPENSES WERE INCURRED FOR THE PURPOSE OF GENE RAL DAY-TO-DAY OPERATIONS AND CONDUCT OF THE BUSINESS, THAT IT WAS ALSO CONTENDED THAT THE E XPENSES WERE MAINLY FOR ADMISSION TO STAFF AND THE HEAD OFFICE, THAT THE AO HAD NOTED THAT THE ASSESSEE HAD MADE INVESTMENT IN VARIOUS PROJECTS, THAT HE WAS OF THE OPINION THAT ASSESSEE SHOULD HAVE CAPITALISED THE EXPENSES AND SHOULD HAVE ADDED THE SAME TO THE COST OF THE RESPE CTIVE PROJECTS, THAT THE AO HAD HELD THAT EXPENSES DEBITED TO THE P&L ACCOUNT WERE OF THE NAT URE OF CAPITAL WORK IN PROGRESS, THAT THE ASSESSEE HAD SIGNED THESE AGREEMENTS FOR COMMERCIAL SPACES AND HAD PAID FURTHER ADVANCES RELATABLE TO THE SAID PROJECTS THAT THE DEVELOPMENT BUSINESS OF THE ASSESSEE HAD COMMENCED DURING THE YEAR UNDER APPEAL, THAT IT HAD NOT RETUR NED ANY INCOME, THAT THE AO WAS JUSTIFIED IN HOLDING THAT THE EXPENSES DEBITED TO THE P&L ACCOUN T SHOULD HAVE BEEN CAPITALISED. REFERRING 1366/M/16;3486-87/M/16- M/S. GITANJALI INFRATECH LTD. 3 TO THE CASE OF VARDHAMAN DEVELOPERS LTD.(55 TAXMANN .COM 370), RELIED UPON BY THE ASSESSEE, THE FAA HELD THAT THE BUSINESS OF THE ASSESSEE HAD COMMENCED, THAT IT HAD INCURRED SIMILAR EXPENSES TO THOSE DISCUSSED IN THE ORDER OF VARDHAM AN DEVELOPERS LTD. (SUPRA). RELYING UPON HER ORDER FOR THE AY. 2012-13, SHE UPHELD THE DISALLOWANCE TO THE EXTENT OF 50%. FOR THE OTHER TWO AY.S ALSO SIMILAR DISALLOWANCE WAS UP HELD. 4.1. WITH REGARD TO ORDER OF THE THEN FAA FOR THE AY. 20 09-10, SHE OBSERVED THAT PRINCIPLES OF RES JUDICATA DID NOT APPLY TO INCOME TAX PROCEEDING S. THE OBSERVATIONS WERE MADE BY DECIDING THE APPEAL FOR AY. 2008-09. 4.2. BEFORE US, THE AR STATED THAT DURING THE SEARCH PRO CEEDINGS CERTAIN PAPERS WERE SEIZED,THAT THE SEIZED MATERIAL HAD BEEN PLACED ON RECORD, THAT AS A CONSEQUENT TO THE SEARCH ACTION THE ASSESSEE WAS SERVED WITH THE NOTICE U/S. 153C,ON 22/10/2012,THAT THE AO HAD MADE DIS-ALLOWANCE OF EXPENSES U/S.37(1) OF THE ACT, THA T THE ACTION OF THE AO IN ISSUING THE NOTICE U/S.153C WAS WITHOUT JURISDICTION, THAT NO INCRIMIN ATING MATERIAL WAS FOUND OR SEIZED DURING THE SEARCH PROCEEDINGS FOR ANY OF THE AY.S, THAT PA GES 92-96, SEIZED DURING THE SEARCH, WERE SOME EXTRACTS OF LEDGER ACCOUNTS WHICH PERTAIN TO T HE AY. 2012-13 AND NOT FOR ANY OF THE AY.S, THAT THE OTHER MATERIALS SEIZED DURING THE SE ARCH PROCEEDINGS WERE OF GENERAL NATURE, THAT THE SEIZED MATERIAL WAS NOT INCRIMINATING IN N ATURE AS IT DID NOT REVEAL ANY DISCLOSED INCOME OF THE ASSESSEE,THAT IN ABSENCE OF ANY INCRI MINATING MATERIAL RELEVANT TO THE ABOVE- MENTIONED THREE AY.S THERE WAS NO VALID SATISFACTIO N TO THE EFFECT THAT UNDISCLOSED INCOME BELONGED TO THE ASSESSEE,THAT THE AO HAD MADE NO AD DITION ON THE BASIS OF SEIZED MATERIAL, THAT WHILE FINALISING THE ASSESSMENT HE DISALLOWED THE CLAIM OF EXPENDITURE U/S.37 (1) OF THE ACT,THAT THE DISALLOWANCE MADE BY THE AO AND ALL TH E AY.S WAS BASED ON REGULAR BOOKS OF ACCOUNTS, THAT THE SAME DID NOT HAVE ANY NEXUS WITH THE SEIZED MATERIAL, THAT THE ASSESSMENT PROCEEDINGS U/S.153C OF THE ACT WERE BAD IN LAW. HE RELIED UPON THE CASE OF SINHGAD TECHNICAL EDUCATION SOCIETY (378 ITR 84) OF THE HON ORABLE BOMBAY HIGH COURT THAT WAS LATER ON CONFIRMED BY THE HONORABLE SUPREME COURT ( 397 ITR 344). HE FURTHER CONTENDED THAT THE RETURN FOR THE AY. 20 08-09 WAS PROCESSED AND ACCEPTED U/S.143 (1)OF THE ACT,THAT NO ASSESSMENT WAS PENDING WHEN T HE AO PASSED THE ORDER U/S.153C, THAT THE ORDER PASSED BY HIM WAS BAD IN LAW. HE RELIED U PON THE CASES OF CONTINENTAL WARE - HOUSING CORPORATION (374 ITR 645), LAVNYA LAND PRIV ATE LTD. (397 ITR 246), NIKKI DRUGS AND CHEMICALS PRIVATE LTD. (386 ITR 680) AND GURIND ER SINGH BAWA (386 ITR 483).WITH REGARD TO AY.S 2010-11 AND 2011-12,HE STATED THAT R ETURNS WERE FILED ON 20/09/2010 AND 27/09/2011 RESPECTIVELY, THAT THE SAME WERE PROCESS ED AND ACCEPTED U/S.143 (1) OF THE ACT.IT 1366/M/16;3486-87/M/16- M/S. GITANJALI INFRATECH LTD. 4 WAS FURTHER ARGUED THAT THE FAA,WHILE DECIDING THE APPEAL FOR THE AY. 2009-10 DID NOT CONFIRM THE ADDITIONS MADE BY THE AO UNDER THE SAME HEADS.THE DEPARTMENTAL REPRESENTA - TIVE(DR)SUPPORTED THE ORDER OF THE AO AND STATED TH AT DOCUMENTS BELONGED TO THE ASSESSEE,THAT THE AO HAD RIGHTLY MADE THE DISALLOWA CE. 4.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT SEARCH AND SEIZURE PROCEEDINGS/SURVEY ACTIONS WERE CARRIED OUT IN THE GROUP CASES ON 29/11/ 2011,THAT CERTAIN DOCUMENTS WERE SEIZED PERTAINING TO THE ASSESSEE, THAT THE AO COMPLETED ASSESSMENT U/S.153C FOR THE ABOVE-MENTIONED THREE A Y.S, THAT HE MADE DISALLOWANCE OF THE CLAIMS OF EXPENDITURE U/S.37 (1) OF THE ACT, THAT B ASICALLY HE DISALLOWED THE BUSINESS LOSSES FOR THE ABOVE-MENTIONED THREE YEARS, THAT WHILE COM PLETING THE ASSESSMENT HE DID NOT REFER TO ANY OF THE SEIZED DOCUMENTS,THAT THE SEIZED MATERIA L ALSO PERTAINED TO THE AY. 2012-13 AND NOT TO ANY OF THE AY.S UNDER CONSIDERATION,THAT THE SEIZED DOCUMENTS, WHEREIN THE NAME OF THE ASSESSEE IS MENTIONED, WERE EXTRACT OF THE LEDG ER ACCOUNTS,THAT THE AO HAD NOT MENTIONED ANYWHERE IN HIS ASSESSMENT ORDER IS AS TO HOW THE L EDGER ACCOUNTS REPRESENTED THE UN- DISCLOSED INCOME OF THE ASSESSEE.HERE, WE WOULD LIK E TO REPRODUCE THE PROVISIONS OF SECTION 153C OF THE ACT AND SAME READS AS UNDER: (1)NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 1 39, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153C, WHERE THE ASSESSING O FFICER IS SATISFIED THAT, (A) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ART ICLE OR THING, SEIZED OR REQUISITIONED, BELONGS TO ; OR (B) ANY BOOKS OF ACCOUNT OR DOCUMENTS, SEIZED OR REQUIS ITIONED, PERTAINS OR PERTAIN TO, OR ANY INFORMATION CONTAINED THEREIN, RELATES TO,A PERSON OTHER THAN THE PERSON REFERRED TO IN SECTION 153CA, THEN, THE BOOKS OF ACCOUNT OR DOCUMENTS OR A SSETS, SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDI CTION OVER SUCH OTHER PERSON SHALL BE INSERTED. THAT ASSESSING OFFICER SHALL PROCEED AGAINST EACH S UCH OTHER PERSON AND ISSUE SUCH OTHER PERSON NOTICE AND ASSESS OR REASSESS INCOME OF SUCH OTHER PERSON IN ACCORDANCE WITH THE PROVISIONS OF SECTION 153CA A PERUSAL OF THE ABOVE SECTION CLEARLY SHOWS THAT T HERE SHOULD BE SOME RELATION BETWEEN THE SEIZED MATERIAL AND THE ASSESSED INCOME WHERE SPECI AL PROCEDURE HAS TO BE FOLLOWED U/S.153C OF THE ACT.THE SECTION WAS INTRODUCED TO COVER THE OTHER PERSONS,WHERE INCRIMINATING DOCUMENTS/ASSETS WERE SEIZED DURING THE SEARCH AND SEIZURE PROCEEDINGS OF THE MAIN PERSON. IT IS NOT UNCOMMON THAT DURING ACTIONS CARRIED OUT U/S.132 (1) OF THE ACT, CERTAIN PAPERS/ DOCUMENTS/BOOKS OF ACCOUNTS/ASSETS BELONGING TO THE PERSONS,OTHER THAN THE PERSON SEARCHED, ARE FOUND.IF THE SEIZED DOCUMENTS/ASSETS REPRESENT THE UNDISCLOSED INCOME OF THE OTHER PERSON THEN THE INCRIMINATING MATERIAL, INCLUDING THE ASSE TS ARE TRANSFERRED TO THE AO HAVING JURISDIC -TION OVER THAT OTHER PERSON.BUT THE BASIC AND FORE MOST THING IS THE DOCUMENTS/ ASSET SHOULD BE INCRIMINATING. IF THE DOCUMENTS/ASSETS DO NOT RE PRESENT THE UNDISCLOSED INCOME OF THE OTHER 1366/M/16;3486-87/M/16- M/S. GITANJALI INFRATECH LTD. 5 PERSON, THEN THERE WOULD BE NO JUSTIFICATION FOR PA SSING ORDER U/S.153C.HERE,WOULD LIKE TO REFER TO THE CASE OF THE HONBLE APEX COURT.THE FAC TS OF THE CASE WERE THAT THE ASSESSEE WAS AN EDUCATIONAL INSTITUTION REGISTERED U/S.12AA OF T HE ACT SINCE THE AY. 1994-95,THAT ON THE BASIS OF DOCUMENTS SEIZED DURING SEARCH AND SEIZURE OPERATIONS CARRIED OUT ON THE PRESIDENT OF THE ASSESSEE-SOCIETY AND HIS WIFE ON 20/07/2005, A SATISFACTION NOTE WAS RECORDED ON 18/ 04/ 2007 TO THE EFFECT THAT THE ASSESSEE-TRUST COULD NO T BE CONSIDERED A GENUINE TRUST, THAT IT WAS RECEIVING EXTRA MONEY OVER AND ABOVE THE FEE FIXED BY THE COMPETENT AUTHORITY, THAT IT WAS NOT ADHERING TO THE OBJECT OF PROVIDING EDUCATION T O THE MASSES AND THE MANAGING TRUSTEES WERE USING THE ASSESSEES TRUST FOR THEIR OWN BENEF IT.ACCORDINGLY,NOTICE U/S.153CC OF THE ACT WAS ISSUED ON 18/04/2007 FOR THE AY.S 2000-01 TO 20 05-06 AND U/S.143(2) FOR AY. 2006-07. REASSESSMENT PROCEEDINGS WERE TAKEN FOR THE AY. 199 9-2000.ON THE GROUND THAT THE ACTIVITIES OF THE TRUST WERE NOT GENUINE AND WERE N OT BEING CARRIED OUT IN ACCORDANCE WITH THE TRUST DEED,REGISTRATION OF THE TRUST WAS CANCELLED U/S.12AA(3) OF THE ACT, THE ASSESSEE WAS TREATED AS AN ASSOCIATION OF PERSONS, A SPECIAL AUD IT U/S.142(2A) OF THE ACT WAS CONDUCTED AND ON THE BASIS OF THE SPECIAL AUDIT REPORT, TAXABLE I NCOMES FOR THE AY.S 1999-2000 TO 2006-07 WERE WORKED OUT BY A COMMON ORDER.THE FAA UPHELD TH E ORDER OF THE AO,HOLDING THAT THE ASSESSEE WAS NOT ELIGIBLE FOR EXEMPTION U/S.11 OF T HE ACT AND, THAT THEREFORE, DONATIONS RECEIVED WERE RIGHTLY TREATED AS INCOME.IN THE APPE AL BEFORE THE APPELLATE TRIBUNAL, THE ASSESSEE RAISED AN ADDITIONAL GROUND QUESTIONING TH E VALIDITY OF THE NOTICE U/S.153CC OF THE ACT ON THE GROUND THAT SATISFACTION WAS NOT PROPERL Y RECORDED AND THAT THE NOTICE U/S.153CC WAS TIME-BARRED IN RESPECT OF AY.S 2000-01 TO 2003- 04. THE APPELLATE TRIBUNAL ALLOWED THE APPEAL ON THE ADDITIONAL GROUND AND QUASHED THE NOT ICE. THE ORDER OF THE TRIBUNAL WAS UPHELD BY THE HIGH COURT.THE APPEAL FILED BY THE DEPARTMEN T BEFORE THE HONBLE APEX COURT WAS DECIDED AS FOLLOW: ..THE TRIBUNAL PERMITTED THE ASSESSEE TO RAISE TH E ADDITIONAL GROUND ON THE GROUND THAT IT WAS A JURISDICTIONAL ISSUE TAKEN UP ON THE BASIS OF FACTS ALREADY ON RECORD, THAT U/S.153CC OF THE ACT, INCRIMINATING MATERIAL WHICH WAS SEIZED HA D TO PERTAIN TO THE AY.S IN QUESTION, AND THAT THE DOCUMENTS WHICH WERE SEIZED DID NOT ESTABLISH ANY C O-RELATION, DOCUMENT-WISE, WITH THESE FOUR AY.S (EMPHASIS BY US) . THE TRIBUNAL FOUND THAT THE MATERIAL DISCLOSED IN THE SATISFACTION NOTE BELONGED TO AY. 2004-05 OR THEREA FTER. THE TRIBUNAL RIGHTLY PERMITTED THIS ADDITIONAL GROUND TO BE RAISED AND CORRECTLY DEALT WITH THE GROUND ON THE MERITS AS WELL. THE HIGH COURT WAS RIGHT IN AFFIRMING THIS VIEW OF THE TRIBUNAL. WE HAVE GONE THROUGH THE DOCUMENTS SEIZED BY THE DE PARTMENT AUTHORITIES DURING THE SEARCH PROCEEDINGS.WE FIND THAT THE DOCUMENTS DO NOT DISCL OSE ANY UNDISCLOSED INCOME ON PART OF THE ASSESSEE FOR ANY OF THE ABOVE AY.S .THE AO HAD DISALLOWED BUSINESS LOSSES AND THAT CLEARLY PROVE THAT SEIZED DOCUMENTS WERE OF NO RELE VANCE FOR THE AO TO MAKE THE DISALLOWANCE.WE ALLOW THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE FOR ALL THE THREE AY.S 1366/M/16;3486-87/M/16- M/S. GITANJALI INFRATECH LTD. 6 AND DECIDE THE SAME IN ITS FAVOUR.THUS,THE ASSESSME NT ORDERS PASSED BY THE AO.S FAIL ON THE TOUCH-STONE OF JURISDICTIONAL VALIDITY FOR AY.2008- 09,2010-11 AND 2011-12.THE CASES RELIED UPON BY THE ASSESSEE,BEFORE US,ALSO SUPPORT THE VIE WS TAKEN BY US.THEREFORE,WE HOLD THAT THE ORDERS PASSED BY THE AO.S AND CONFIRMED BY THE FAA ARE NOT VALID EITHER ON JURISDICTIONAL QUESTION OR ON MERITS.SO,REVERING THE ORDERS OF THE FAA,WE ALLOW THE APPEALS FILED BY THE ASSESSEE-COMPANY. BEFORE CONCLUDING WE WILL LIKE TO MENTION THAT PRIN CIPLES OF RES JUDICATA DO NOT APPLY TO INCOME TAX PROCEEDINGS,BUT IT IS EQUALLY TRUE THAT RULE OF CONSISTENCY IS APPLICABLE TO INCOME TAX MATTERS.IN THE CASE OF INTERNATIONAL TRACTORS L TD.( 397 ITR 696)THE HONBLE DELHI HIGH COURT HAS HELD THAT DEDUCTIONS ALLOWED IN THE EARLI ER ASSESSMENT YEARS SHOULD NOT BE WITHDRAWN UNLESS THE CIRCUMSTANCES HAVE CHANGED. IN THE MATTER OF ZAZSONS EXPORT LTD.( 397 ITR 400),THE ALLAHABAD HIGH COURT HAS HELD AS FOLLO WS: IN ORDER TO MAINTAIN CONSISTENCY, A VIEW, WHICH HAD BEEN ACCEPTED IN AN EARLIER ORDER OUGHT NOT TO BE DISTURBED UNLESS THERE WAS ANY MATERIAL T O JUSTIFY THE DEPARTMENT TO TAKE A DIFFERENT VIEW OF THE MATTER. IN RESPECT OF THE EARLIER ASSES SMENT YEAR, 2005-06, THE DEPARTMENT HAD ACCEPTED THE DECISION OF THE APPELLATE TRIBUNAL THA T THE TRADE AMOUNT DUE TO THE TRADE CREDITORS IN THE BOOKS OF ACCOUNT OF THE ASSESSEE C OULD NOT BE ADDED TO THE INCOME OF THE ASSESSEE. THERE WAS NOTHING ON RECORD TO SHOW THAT ANY APPEAL HAD BEEN FILED BY THE DEPARTMENT AGAINST THAT ORDER, WHICH HAD BECOME CON CLUSIVE. THE HONBLE DELHI HIGH COURT IN THE MATTER OF GALIL EO NEDERLAND BV,(367ITR319), HAS HELD AS UNDER: DECISION ON AN ISSUE OR QUESTION TAKEN IN EARLIER YEARS THOUGH NOT BINDING SHOULD BE FOLLOWED AND NOT IGNORED UNLESS THERE ARE GOOD AND SUFFICIENT REASONS TO TAKE A DIFFERENT VIEW. SAID PRINCIPLE IS BASED UPON RULES OF CERTAINTY AND THAT A DECISION TAKEN AFTER DUE APPLICATION OF MIND SHOULD BE FOLLOWED CONSISTENTLY AS THIS LEA D TO CERTAINTY, UNLESS THERE ARE VALID AND GOOD REASONS FOR DEVIATING AND NOT ACCEPTING EARLIE R DECISION. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GOPAL PUROHIT(336ITR287)HAS HELD THAT THAT THERE SHOULD BE UNIFORMITY IN TREATMENT AND WHEN F ACTS AND CIRCUMSTANCES FOR DIFFERENT YEARS WERE IDENTICAL PARTICULARLY IN THE CASE OF THE SAME ASSESSEE.WHILE UPHOLDING THE PRINCIPLES OF RES JUDICATA THE FAA HAS NOT DEMONSTRATED AS TO HOW THE FACTS OF AY.2009-10 WERE DIFFERENT FROM THE FACTS OF OTHER THREE AY.S.-ESPECIALLY OF A Y. 2008-09.THIS ONE MORE REASON TO REVERSE THE ORDER OF THE FAA. AS A RESULT,ALL THE TH REE APPEALS FILED BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCE D IN THE OPEN COURT ON 07 TH FEBRUARY,2018. 07 2018 SD/- SD/- ( . . / C.N.PRASAD ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 07.02.2018. JV.SR.PS. 1366/M/16;3486-87/M/16- M/S. GITANJALI INFRATECH LTD. 7 / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR G BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.