DCIT, CIR-8(2), KOLKATA, Kolkata V. Shri Sanjay Budhia, Kolkata

ITA 1451/KOL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7543 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 08-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RABIN CHOUDHURY
• Assessee Lawyers: V K JAIN; A BANERJEE
• Keywords: Reopening of assessment; Search and seizure; Deemed to accrue or arise in india; Tangible material; Difference of opinion; Deemed dividend; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 142(1); 2(22)(e); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI S. S. GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.1451/KOL/2015 ( / ASSESSMENT YEAR: 2006-07) DCIT, CIRCLE-8(2), KOLKATA AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. VS. SHRI SANJAY BUDHIA 3C, CAMAC STREET, KOLKATA 700 016. ./ ./PAN/GIR NO.: AEMPB 2422 D (APPELLANT) .. (RESPONDENT) CROSS OBJECTION NO.41/KOL/2016 ( / ASSESSMENT YEAR: 2006-07) SHRI SANJAY BUDHIA 3C, CAMAC STREET, KOLKATA 700 016. VS. DCIT, CIRCLE-8(2), KOLKATA AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ./ ./PAN/GIR NO.: AEMPB 2422 D (APPELLANT) .. (RESPONDENT) APPELLANT BY :SHRI RABIN CHOUDHURY , ADDL. CIT, SR. DR RESPONDENT BY : SHRI A. BANERJEE, AD VOCATE & V.K. JAIN, FCA / DATE OF HEARING : 27/11/2018 /DATE OF PRONOUNCEMENT : 16/01/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THEREVENUE, AND CROSS OBJECTION FILED BY THE ASSESSEE,PERTAINING TO ASSESSMENT YEAR 2006-07,ARE DIRECTED AGAINST AN ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)-20, KOLKATA IN APPEAL NO.707/CIT(A)-20/CC-1(2)/14-15 DATED 23.09.2015, WH ICH IN TURN ARISES OUT OF AN SHRI SANJAY BUDHIA ITA NO.1451/KOL/2015 ASSESSMENT YEAR: 2007-08 P PP PA AA AG GG GE EE E | || | 2 22 2 ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/ S 147/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ), DATED 31.03.2014. 2. THE CROSS OBJECTION FILED BY THE ASSESSEE IN CO. NO.41/KOL/2016, FOR ASSESSMENT YEAR 2006-07, IS BARRED BY LIMITATION BY 157 DAYS. THE ASSESSEE HAS MOVED A PETITION REQUESTING THE BENCH TO CONDONE TH E DELAY.WE HEARD THE PARTY ON THIS PRELIMINARY ISSUE. HAVING REGARD TO THE REASON S GIVEN IN THE PETITION, WE CONDONE THE DELAY AND ADMIT THE CROSS OBJECTIONS FO R HEARING. 3. THE GRIEVANCES RAISED BY THE REVENUE ARE AS FOLL OWS: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.2,00,00,000/- MADE BY T HE ASSESSING OFFICER IN THE ORDER PASSED U/S 143(3)/147 OF THE INCOME TAX ACT, 1961 ON 31.03 .2004 ON ACCOUNT OF DEEMED DIVIDEND AS PER SECTION 2(22)(E) OF THE INCOME TAX ACT, 1961 . 2.THAT, THE APPELLANT RESERVES THE RIGHT TO AMEND, ALTER OR ADD TO ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. THE BRIEF FACTS QUA THE ISSUE ARE THAT DURING TH E ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER EXAMINED THE BALANCE SHEET OF THE ASSESSEE FOR THE YEAR ENDED 31 ST MARCH,2006, AND OBSERVED THAT THE ASSESSEE HAD TAKE N AN ADVANCE, AMOUNTING TO RS. 2,00,00,000/- FROM 'M/S PATTON INTERNATIONAL LT D, DURING THE FY 2005-06 RELEVANT TO THE AY 2006-07.FROM THE ASSESSMENT RECO RD OF PATTON INTERNATIONAL LTD,IT WAS NOTED BY THE AO THAT THE ASSESSEE WAS OW NER OF 20.34% OF PAID UP EQUITY SHARES OF THAT COMPANY BY HOLDING 18,36,440 SHARES OUT OF 90,28,216 PAID UP EQUITY SHARES. BESIDES, M/S PATTON INTERNATIONAL LTD, HAD BEEN A CLOSELY HELD COMPANY,WHOSE NATURE OF BUSINESS WAS MANUFACTURING AND EXPORT IN THE FY 2005- 06. BESIDES, IT WASNOTED BY AO FROM THE BALANCE SHE ET OF PATTON INTERNATIONAL LTD, AS ON 31-03-2006, THAT AS ON THAT DATE IT HAD RS.38 ,37,82,331/- OF ACCUMULATED PROFITS AND AS ON 31-03-2005 ACCUMULATED PROFIT WAS RS.16,56,62,369/-.THEREFORE, LD AO CONCLUDED THAT THE ADVANCE OF RS.2,00,00,000/ - GIVEN TO SRI SANJAY BUDHIA, SATISFIED ALL THE NECESSARY CONDITIONS FOR ATTRACTI NG THE PROVISIONS OF SECTION 2(22)(E) OF THE INCOME TAX ACT,1961 AND SHOULD HAVE BEEN ASSESSED AS DEEMED DIVIDEND IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE ACT. THEREFORE, THE AO HAD SHRI SANJAY BUDHIA ITA NO.1451/KOL/2015 ASSESSMENT YEAR: 2007-08 P PP PA AA AG GG GE EE E | || | 3 33 3 REASON TO BELIEVE THAT TAXABLE INCOME HAD ESCAPED A SSESSMENT IN THE CASE OF THE ASSESSEE TO THE EXTENT OF RS. 2,00,00,000/- AND NOT ICE U/S 148 WAS ISSUED TO THE ASSESSEE. IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, THE A SSESSEE REPLIED TO THE AO THAT THE RETURN OF INCOME FILEDU/S 139 ON 19-06-2006 MAY BE TREATED AS RETURN FILED U/S 148 OF THE IT ACT,1961. SUBSEQUENTLY, THE NOTICES U/S 1 43(2)AND 142(1) WITH SPECIFIC REQUISITION WERE ISSUED AND SERVED ON 12.09.2013, U PON THE ASSESSEE AND THEREAFTER ON REQUEST FROM THE ASSESSEE THE REASON FOR ISSUE O F THE NOTICE U/S 148 ALSO WAS PROVIDED TO THE ASSESSEE. IN RESPONSE TO THE ABOVE NOTICES, THE ASSESSEE APPE ARED ON DIFFERENT DATES AND SUBMITTED EXPLANATIONS, DETAILS AND EXPLAINED THAT PROVISIONS OF SECTION 2(22)(E) WILL NOT BE ATTRACTED TO THE ABOVEMENTIONED TRANSAC TION AND SUBMITTED THE WRITTEN SUBMISSION WHICH IS GIVEN BELOW: THAT PATTON INTERNATIONAL LTD WAS ENJOYING CREDIT FACILITY LIMIT OF RS. 14.5 CRORE WITH STATE BANK OF MYSORE, SHAKESPEARE SARANI BRANC H,KOLKATA AND ON 10-06- 2005 APPLIED FOR ENHANCEMENT OF CREDIT LIMIT TO RS. 25 CRORES AND THE BANK ASKED FOR PERSONAL GUARANTEE OF DIRECTORS FOR SUCH ENHANC EMENT VIDE LETTER DATED 17-08- 2005. SINCE GIVING PERSONAL GUARANTEE WOULD BLOCK T HE LIQUIDITY OF ASSETS OWNED BY THE DIRECTORS.,THEREFORE, THE COMPANY PATTON INT ERNATIONAL LTD, PASSED A RESOLUTION ON 10-06-2005 AGREEING TO GRANT LOAN OF UP TO RS. 2 CRORES TO DIRECTORS STANDING GUARANTEE IN CASE OF THEIR FUTURE REQUIREM ENT. ON 28-09-2005, SUCH PERSONAL GUARANTEE WAS GIVEN BY BOTH DIRECTORS, SANJAY BUDHIA& H P BUDHIA AND THE CONDITION OF PERSONAL GU ARANTEE WAS THAT GUARANTORS COULD NOT DISPOSE OF THEIR ASSETS WITHOU T PRIOR APPROVAL OF BANK. THEREFORE, THE ASSESSEE SUBMITTED BEFORE THE AO THA T AFORESAID ADVANCE OF RS. 2,00,00,000/- WAS NOT GIVEN FREE, AND THERE IS A VA LID CONSIDERATION IN THE FORM OF PERSONAL GUARANTEE. HOWEVER, ASSESSING OFFICER REJE CTED THE CONTENTION OF THE ASSESSEE AND HELD THAT THE AFORESAID ADVANCE OF RS. 2,00,00,000/- EXTENDED BY M/S PATTON INTERNATIONAL LTD. TO SHRI SANJAY BUDHIA, WA S NOT MADE IN ORDINARY COURSE OF BUSINESS. THEREFORE, THIS ADVANCE OF RS. 2, 00,0 0,000/- FALLS UNDER THE SCOPE OF SHRI SANJAY BUDHIA ITA NO.1451/KOL/2015 ASSESSMENT YEAR: 2007-08 P PP PA AA AG GG GE EE E | || | 4 44 4 LOANS AND ADVANCES AS DEFINED U/S 2(22)(E) OF THE I.T. ACT,1961 AND IS THEREFORE TAXED AS DEEMED DIVIDEND IN THE HAND OF THE ASSESSE E, SHRI SANJAY BUDHIA. 4. AGGRIEVED BY THE STAND TAKEN BY THE ASSESSING OF FICER THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO HAS DELETED THE AD DITION MADE BY THE ASSESSING OFFICER. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 5. BEFORE US, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD CIT(A) HAD PASSED THE REASONED ORDER AFTER CONSIDERING ALL FACTS OF THE A SSESSEE THEREFORE, HIS ORDER SHOULD BE SUSTAINED. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER , WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR T HE SAKE OF BREVITY. 6. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIV AL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, WE NOTE THAT THE ASSE SSEE IS HAVING 20.34% SHARES IN THE COMPANY, M/S PATTON INTERNATIONAL LTD. DURING T HE YEAR UNDER CONSIDERATION THIS COMPANY WANTED TO INCREASE ITS CREDIT FACILITY LIMIT FROM 14.5 CRORE TO 25 CRORES. THE COMPANY APPROACHED THE STATE BANK OF MY SORE FOR THE SAME. THE BANK AGREED TO INCREASE THE CREDIT FACILITY ON THE CONDI TION THAT ITS DIRECTORS WOULD HAVE TO GIVE PERSONAL GUARANTEE FOR THE SAME. THE ASSESS EE BEING A DIRECTOR OF THE COMPANY GAVE HIS PERSONAL GUARANTEE ON THE GROUND T HAT IN CASE DIRECTORS NEEDED ANY MONEY IN FUTURE THEN THEY COULD TAKE ADVANCE UP TO RS. 2 CRORE FROM THE COMPANY AS AND WHEN REQUIRED. A BOARD RESOLUTION FO R THE SAME WAS PASSED ON 10.06.20005. DURING THE YEAR, THE ASSESSEE TOOK AN ADVANCE OF RS. 2 CRORE AND LATER ON PAID IT BACK WITH INTEREST TO THE COMPANY AS PE R HIS ENTITLEMENT (ACCORDING TO THE BOARDS RESOLUTION OF THE COMPANY). THE AO TREA TED THIS ADVANCE AS DEEMED INCOME AND MADE AN ADDITION OF THE SAME.WE NOTE THA T ASSESSEE SUBMITTED A COPY OF THE AGREEMENT BETWEEN THE COMPANY AND THE BANK S HOWING PERSONAL GUARANTEE OF THE ASSESSEE FOR THE INCREASE OF THE CREDIT FACI LITY OF THE COMPANY. IN PERSONAL GUARANTEE, A LIST OF ALL MOVABLE AND IMMOVABLE ASSE TS OF THE ASSESSEE WAS GIVEN TO THE BANK WHICH COULD NOT BE DISPOSED OFF BY THE ASS ESSEE AS AND WHEN REQUIRED, THEREFORE THE BOARD OF DIRECTORS OF THE COMPANY PAS SED A RESOLUTION OF GIVING SHRI SANJAY BUDHIA ITA NO.1451/KOL/2015 ASSESSMENT YEAR: 2007-08 P PP PA AA AG GG GE EE E | || | 5 55 5 ADVANCE TO THE ASSESSEE, (VIDE BOARD RESOLUTION IN PAPER BOOK PAGE NO.33). WE NOTE THAT LD DR DID NOT CONTROVERT THIS FACTUAL POS ITION, EXPLAINED BY THE COUNSEL FOR THE ASSESSEE. 7. WE NOTE THAT THE ASSESSEE SUBMITTED A COPY OF AG REEMENT IN FORM NO. 22 DATED 17.08.2005 OF AGREEMENT FOR HYPOTHECATION AND GUAR ANTEE (HYPOTHECATION OF GOODS, MACHINERY, BOOKS DEBTS AND OTHER ASSETS) BET WEEN THE STATE OF BANK OF MYSORE AND ASSESSEE, A DIRECTOR OF THE COMPANY, (PB .34-67). ACCORDING TO THIS AGREEMENT BETWEEN THE ASSESSEE AND THE BANK,(BECAUS E OF THE PERSONAL GUARANTEE GIVEN BY THE ASSESSEE), AS PER CLAUSE 8 OF THE AGRE EMENT THAT ALL THE SAID GOODS AND ALL SALE REALIZATION AND INSURANCE PROCEEDS THEREO F AND ALL DOCUMENTS UNDER THIS SCRUTINY SHALL ALWAYS BE KEPT DISTINGUISHABLE AND H ELD AS THE BANKS EXCLUSIVE PROPERTY SPECIALLY APPROPRIATED TO THIS SECURITY TO BE DEALT WITH ONLY UNDER THE DIRECTIONS OF THE BANK AND THE BORROWER SHALL NOT C REATE ANY MORTGAGE CHARGE LIEN OR ENCUMBRANCE UPON OR OVER THE SAME OR ANY PART TH EREOF EXCEPT TO THE BANK NOR SUFFER ANY SUCH MORTGAGE CHARGE LIEN OR ENCUMBRANCE TO AFFECT THE SAME OR ANY PART THEREOF NOR DO OR ALLOW ANYTHING THAT MAY PREJ UDICE THIS SECURITY. THEREFORE, IT IS ABUNDANTLY CLEAR FROM THE ABOVE THAT THE ASSESSE E HAD TO MORTGAGE ALL HIS ASSETS TO THE BANK IN ORDER TO INCREASE THE CREDIT FACILIT Y OF THE COMPANY AND THEREFORE, ADVANCE TAKEN BY THE ASSESSEE SHOULD NOT BE TREATED AS DEEMED DIVIDEND. FOR THAT WE RELY ON THE JUDGMENT OF THE JURISDICTIONAL KOLKA TA HIGH COURT IN THE CASE OF PRADIP KUMAR MALHOTRA VS. COMMISSIONER OF INCOME TA X [2011] 338 ITR 538 (CAL) ON SIMILAR IDENTICAL FACTS. IN THIS CASE THE HON`BLE KOLKATA HIGH COURT HAS HELD THAT FOR RETAINING THE BENEFIT OF LOAN AVAILE D OF FROM THE BANK, IF DECISION IS TAKEN TO GIVE ADVANCE TO THE ASSESSEE, SUCH DECISIO N WAS NOT TO GIVE GRATUITOUS ADVANCE TO ITS SHAREHOLDER BUT TO PROTECT THE BUSIN ESS INTEREST OF THE COMPANY. THAT IS, IF SUCH LOAN OR ADVANCE IS GIVEN TO SUCH SHARE HOLDER AS A CONSEQUENCE OF ANY FURTHER CONSIDERATION WHICH IS BENEFICIAL TO THE CO MPANY RECEIVED FROM SUCH A SHAREHOLDER, IN SUCH CASE, SUCH ADVANCE OR LOAN CAN NOT BE SAID TO A DEEMED DIVIDEND WITHIN THE MEANING OF THE ACT. SHRI SANJAY BUDHIA ITA NO.1451/KOL/2015 ASSESSMENT YEAR: 2007-08 P PP PA AA AG GG GE EE E | || | 6 66 6 THEREFORE, CONSIDERING THE ENTIRETY OF FACTS AND CI RCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE RATIO DECIDED BY THE HON BLE KOLKATA HIGH COURT IN THE CASE OF PRADIP KUMAR MALHOTRA (SUPRA) ON IDENTICAL FACTS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD CIT(A).THAT BEING SO, WE DECLINE TO INTERFERE WITH THE ORDER OF ID. C.I T.(A) DELETING THE AFORESAID ADDIT ION. HIS ORDER ON THIS ADDITION IS, THEREFORE, UPHELD AND THE GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 8. NOW WE DEAL WITH ASSESSEE`S CROSS OBJECTION NO.4 1/KOL/2016, FOR A.Y. 2006- 07. THE ASSESSEE IN HIS CROSS OBJECTIONS, HAS CHALL ENGED THE VALIDITY OF REOPENING OF ASSESSMENT UNDER SECTIONS 147/148 OF THE ACT. 9. THE LD COUNSEL FOR THE ASSESSEE BEGINS BY POINTI NG OUT THAT IN ASSESSEE`S CASE UNDER CONSIDERATION THE REASSESSMENT U/S 147/148 WA S INITIATED BY THE AO WITHOUT ANY TANGIBLE MATERIAL. THE LD COUNSEL FURTHER POINT ED OUT THAT REASSESSMENT IN THE ASSESSEE`S CASE IS AMOUNTED TO REVIEW OF ORIGINAL O RDER OF THE AO AND IT IS BASED ON CHANGE ON OPINION. BESIDES, IN REASSESSMENT PROC EEDINGS, THE AO DID NOT PASS ANY ORDER ON OBJECTION FILED BY THE ASSESSEE, THERE FORE, THE REASSESSMENT PROCEEDINGS ARE ITSELF BAD IN LAW AND SHOULD BE QUA SHED. 10.ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HA S PRIMARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER. 11. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, WE NOTE THAT THE REAS SESSMENT PROCEEDINGS WERE INITIATED BY AO AFTER FOUR YEARS WITHOUT BRINGING A ND TANGIBLE MATERIAL ON RECORD. THE ISSUE ON WHICH THE REASSESSMENT PROCEEDINGS WER E INITIATED BY AO WAS ALREADY EXISTED DURING THE ORIGINAL ASSESSMENT (VID E PB 22 TO 25). LOAN INTEREST WAS PAID BY ASSESSEE AND THE SAID INTEREST WAS CLAI MED AND DURING THE ORIGINAL ASSESSMENT THE SAME WAS DISALLOWED BY AO WHILE PASS ING THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) OF THE ACT.WE NOTE THAT IN THE ASSESSEE`S CASE UNDER CONSIDERATION THE REASSESSMENT PROCEEDINGS WAS BASE D ON REVIEW OF THE SAME SET OF FACTS/DETAILS WHICH WERE ALREADY ON RECORD BEFOR E AO AT THE TIME OF COMPLETION SHRI SANJAY BUDHIA ITA NO.1451/KOL/2015 ASSESSMENT YEAR: 2007-08 P PP PA AA AG GG GE EE E | || | 7 77 7 OF ORIGINAL ASSESSMENT UNDER SECTION 143(3) OF THE ACT.THE AO HAS MERELY REVIEWED THE SAME SET OF DOCUMENTS AND CONCLUDED TH AT THAT THERE WAS ESCAPEMENT OF TAX WHICH IS NOT TENABLE. IT IS WELL SETTLED THA T THE AO CANNOT REOPEN A CONCLUDED ASSESSMENT MERELY ON REVIEWING THE DOCUME NTS WHICH ARE ALREADY FILED BEFORE THE AO DURING THE ORIGINAL ASSESSMENT. FOR T HAT WE RELY ON THE LANDMARK JUDGMENT DELIVERED BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT -VS.- KELVINATOR OF INDIA (2010) 320 ITR 561 (SC), WHEREI N BY AFFIRMING THE DECISION OF THE FULL BENCH OF THE DELHI HIGH COURT, IT WAS HELD AS FOLLOWS: '6. .... THEREFORE, POST 1 ST APRIL, 1989, POWER TO REOPEN IS MUCH WIDER. HOWEVE R, ONE NEEDS TO GIVE A SCHEMATIC INTERPRETATION TO THE WOR DS 'REASON TO BELIEVE' FAILING WHICH, WE ARE AFRAID SECTION 147 WOULD GIVE ARBITRARY POWE RS TO THE AO TO REOPEN ASSESSMENTS ON THE BASIS OF 'MERE CHANGE OF OPINION', WHICH CAN NOT BE PER SE REASON TO REOPEN. WE MUST ALSO KEEP IN, MIND THE CONCEPTUAL DIFFERENCE B ETWEEN POWER TO REVIEW AND POWER TO REASSESS. THE AO HAS NO POWER TO REVIEW; HE HAS THE POWER TO REASSESS. BUT REASSESSMENT HAS TO BE BASED ON FULFILLMENT OF CERTAIN PRE-CONDI TION AND IF THE CONCEPT OF 'CHANGE OF OPINION' IS REMOVED, AS CONTENDED ON BEHALF OF THE DEPARTMENT, THEN, IN THE GARB OF REOPENING THE ASSESSMENT, REVIEW WOULD TAKE PLACE. ONE MUST TREAT THE CONCEPT OF 'CHANGE OF OPINION' AS AN IN-BUILT TEST TO CHECK AB USE OF POWER BY THE AO. HENCE, AFTER 1ST APRIL, 1989, AO HAS POWER TO REOPEN, PROVIDED T HERE IS TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT THERE IS ESCAPEMENT OF INCOM E FROM ASSESSMENT. REASONS MUST HAVE A LINK WITH THE FORMATION OF THE BELIEF........ HENCE, BASED ON THE ABOVE FINDINGS, THE REASSESSMEN T PROCEEDINGS SHALL NOT BE SUSTAINABLE IN THE EYES OF LAW, AND THEREFORE WE AL LOW THE CROSS OBJECTION FILED BY THE ASSESSEE. WE FURTHER QUOTE SECTION 147 1 ST PROVISO TO CONCLUDE THAT THE REVENUE HAS NOT MADE OUT A CASE OF THE ASSESSEE HAV ING NOT FULLY AND TRULY DISCLOSED ALL PARTICULARS AT THE FIRST INSTANCE AS PER HINDUSTHAN LEVER LTD. VS. R.B. WADKER [2004] 268 ITR 331 (BOM) 12.IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED AND CROSS OBJECTIONS FILED BY THE ASSESSEE ARE ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.01.2019 . SD/- ( S. S. GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 16 /01/2019 ( RS, SR.PS ) SHRI SANJAY BUDHIA ITA NO.1451/KOL/2015 ASSESSMENT YEAR: 2007-08 P PP PA AA AG GG GE EE E | || | 8 88 8 / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. /THE APPELLANT- DCIT, CIRCLE-8(2), KOLKATA 2. ! / THE RESPONDENT- SHRI SANJAY BUDHIA 3. ' ( ) / THE CIT(A), 4. ' / CIT 5. #$% &&'( , '( , / DR, ITAT, KOLKATA 6. %)*+ / GUARD FILE. !# &