LALITA AGARWAL, BHARATPUR V. DCIT, BHARATPUR

ITA 167/JPR/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5475 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 23-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAILASH MANAGAL JCIT DHK
• Keywords: Reopening of assessment; Share purchase agreement; Opportunity of being heard; Principle of natural justice; Additional evidence; Tangible material; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 142(1); 10B; 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE:SHRI T.R. MEENA,AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 167/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 SMT. LALITA AGARWAL W/O LATE SHRI PRABHU DAYAL AGARWAL, NEW MANDI, BHARATPUR CUKE VS. THE DCIT CIRCLE- BHARATPUR BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABGPA 7377 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJENDRA AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANAGAL, JCIT LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01/01/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 12/02/2016 VKNS'K@ ORDER PER LALIET KUMAR, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 12-12-2014 FOR THE ASSESSMENT YEAR 2005-06 RAISING THEREIN FOLLOWING GROUNDS. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D. CIT(A) HAS ERRED IN:- ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 2 (I) HOLDING THAT AO HAD RIGHTLY INITIATED THE PROC EEDINGS U/S 147/148 OF THE ACT (II) REJECTING THE ADDITIONAL EVIDENCE FILED BY T HE APPELLANT (III) HOLDING THAT THE AO WAS JUSTIFIED IN MAKING AN ADDITION OF RS. 8,60,784/- ON ACCOUNT OF LONG TERM CAPITAL GAIN AND CONFIRMING THE SAME. 2.1 AS REGARDS GROUND NO. 1 TO 3 OF THE ASSESSEE, B RIEF FACTS OF THE CASE ARE THAT ORIGINAL ASSESSMENT WAS COMPLETED ON A TOT AL INCOME OF RS. 14,66,870/- U/S 143(3) VIDE ORDER DATED 26-12-2008. THE AO SUBSEQUENTLY VIDE ITS ASSESSMENT ORDER DATED 18-03- 2013 OBSERVED THAT THE ASSESSEE HAD NOT FILED ANY EVIDENCE REGARDING N UMBER OF SHARES PURCHASED, RATE AT WHICH SHARES PURCHASED, S.NO. O F SHARE CERTIFICATES, PURCHASE/ SALE INVOICE OF SHARES, NAME OF BROKER TH ROUGH WHICH SHARES WERE PURCHASED. THE AO OBSERVED THAT THE ASSESSEE H AD NOT DISCLOSED INVESTMENT OF RS. 22,560/- IN THE BALANCE SHEET AS ON 31-03-2004. THE AO IN THIS WAY OBSERVED THAT THE ASSESSEE HAD NOT D ISCLOSED INCOME TO THE EXTENT OF RS. 8,60,784/- IN HIS RETURN AND THEREFOR E, ESCAPEMENT OF INCOME TO THE EXTENT WAS DETECTED. THE ASSESSMENT WAS REOP ENED U/S 148 ON 30- 03-2012 AFTER RECORDING REASONS AND NOTICE WAS ISSU ED TO THE ASSESSEE FOR WHICH THE AO FILED REPLY DATED 30-04-2012 INDICATIN G THAT THE RETURN ALREADY FILED ON 29-06-2005 MAY BE TREATED IN COMPL IANCE TO NOTICE U/S ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 3 148 ISSUED TO THE ASSESSEE AND THE REASONS RECORDED U/S 147 OF THE ACT HAD ALSO BEEN INTIMATED VIDE LETTER DATED 13-06-2012. T HE AO SENT THE NOTICES TO THE ASSESSEE ON 7-08-2012 U/S 143(2) AND DATED 1 3-02-2013 U/S 142(1) BUT THE LD. AR OF THE ASSESSEE REITERATED THE SAME FACTS AS WERE MADE IN THE EARLIER ASSESSMENT. THE AO OBSERVED THAT THE AS SESSEE DID NOT FURNISH THE DETAILS OF SALE OF SHARES, PURCHASE SALE INVOIC ES OF SHARES, S.NO. OF SHARES CERTIFICATES AND FOR WANT OF THESE DETAILS, IT WAS NOT POSSIBLE FOR THE AO TO DEDUCE THE EXACT TRANSACTIONS IN VARIOUS EQUITIES FOR WHICH THE ASSESSEE CLAIMED LONG TERM CAPITAL GAIN OF RS. 8,60 ,784/-. THE AO THUS HELD THAT ASSESSEE'S CLAIM OF EXEMPTION U/S 10(38) OF THE ACT OF LONG TERM CAPITAL GAIN ON SALE OF SHARES AMOUNT TO RS. 8 ,60,784/- WAS NOT CORRECT. THE AO IN THE ABSENCE OF DETAILS AND EVIDE NCES DISALLOWED THE EXEMPTION SO CLAIMED BY THE ASSESSEE U/S 10(38) AN D ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S 69A OF THE ACT. 2.2 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ORDER OF THE AO BY OBSERVING AS U NDER:- 4.5 I HAVE PERUSED THE ASSESSMENT ORDER, REMAND R EPORT OF THE AO, SUBMISSIONS ALONGWITH THE JUDICIAL CITATION S GIVEN THEREIN AND CROSS REPLY OF THE APPELLANT AND FIND THAT REASSESSMENT PROCEEDINGS U/S 147/148 OF THE I.T. AC T HAVE BEEN INITIATED BASED ON THE FACT THAT NO DETAILS IN THE FORM OF COPY OF BILLS FOR PURCHASE AND SALES OF SHARES, CO PY OF BANK STATEMENTS, COPY OF SHARE CERTIFICATES, PAYMENT OF STT BY THE BROKER, LISTING OF SHARES ETC. WERE FILED BY THE AP PELLANT IN THE ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 4 COURSE OF THEIR REASSESSMENT PROCEEDINGS TO SUBSTAN TIATE ITS CLAIM OF LONG TERM CAPITAL GAINS EARNED ON SALE OF SHARES BEING EXEMPT FROM TAX U/S 10(38) OF THE I.T. ACT. I T IS ALSO NOTED THAT REASONS HAVE BEEN DULY RECORDED BY THE A O AND AN OPPORTUNITY OF BEING HEARD HAS BEEN GIVEN TO THE APPELLANT BEFORE INITIATING THE REASSESSMENT PROCEEDINGS. REA SSESSMENT PROCEEDINGS WERE STARTED AFTER CONSIDERING THE OBJE CTION RAISED BY THE APPELLANT AND ON THE BASIS OF MATERIA L AVAILABLE ON RECORD. THE AO HAS DISCHARGED THE DUTY WHICH LAY UPON HIM BEFORE INITIATING THE ASSESSMENT PROCEEDINGS. 4.6 HOWEVER, THE CASE LAWS RELIED UPON BY THE APPELLANT DOES NOT HAVE APPLICABILITY TO THE FACTS OF THE PRESENT CASE. THE FUNCTION OF THE ASSESSING OFFICER IS TO ADMINISTER THE STATUTE WITH SOLICITUDE FOR THE PUBL IC EXCHEQUER WITH AN IN-BUILT IDEA OF FAIRNESS TO TAXP AYER (ASSTT.CIT VS. RAJESH JHAVERI STOCK BROKERS (P) LTD . [2007] 291 ITR 500 (SC). IN DETERMINING WHETHER COMMENCEME NT OF REASSESSMENT PROCEEDING IS VALID, THE COURT HAS ONLY TO SEE WHETHER THERE IS PRIMA FACIE SOME MATERIAL ON T HE BASIS OF WHICH THE DEPARTMENT OPENED THE CASE. THE SUFFI CIENCY OR CORRECTNESS OF THE MATERIAL IS NOT A THING TO BE CONSIDERED AT THIS STAGE AS HELD BY THE SUPREME COURT IN THE C ASE OF RAYMOND WOOLLEN MILLS LTD. VS. ITO [1999] 236 ITR 3 4 (SC), GREAT ARTS (P) LTD. VS. ITO, [2002] 257 ITR 6 39 (DEL.). THE ASSESSEE CANNOT CHALLENGE THE SUFFICIEN CY OF BELIEF TOTAL INCOME VS. LAKHMANI MEWAL DAS [1976] 103 ITR 437 (SC). 4.7 THUS, IN VIEW OF THESE FACTS, I HOLD THAT AO HA S RIGHTLY INITIATED THE PROCEEDINGS U/S 147/148 OF TH E I.T. ACT. 2.3 THE LD. CIT(A) FURTHER UPHELD THE ADDITION OF R S. 8,60,784/- ON ACCOUNT OF LONG TERM CAPITAL GAINS BY OBSERVING A S UNDER:- 5.5 I HAVE PERUSED THE ASSESSMENT ORDER, REMAND REPORT OF THE AO, SUBMISSIONS INCLUDING JUDICIAL CI TATIONS AND CROSS REPLY OF THE APPELLANT AND FIND THAT AN A DDITION OF RS. 8,60,784/- HAS BEEN MADE ON ACCOUNT OF LONG TE RM ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 5 CAPITAL GAINS CLAIMED AS EXEMPT U/S 10(38) OF THE I .T. ACT. AO HAS MADE THE ADDITION IN THE COURSE OF RE-ASSESS MENT PROCEEDINGS ON THE GROUND THAT THE APPELLANT HAD FA ILED TO FILE ANY EVIDENCE WITH REGARD TO THE SALE AND PURCH ASE OF SHARES, PAYMENT OF STT, COPY OF BANK ACCOUNT, SOURC E OF INVESTMENT LISTING OF SHARES ETC. IN THE COURSE OF EARLIER RE- ASSESSMENT PROCEEDINGS. 5.6 THE APPELLANT HAS STATED THAT COPY OF BILLS FOR PURCHASE AND SALE OF SHARES HAVE BEEN FILED AND COP Y OF BANK STATEMENT SHOWING RECEIPT OF SALE CONSIDERATION ON SALE OF SHARES HAS BEEN FILED IN THE COURSE OF APPELLATE PR OCEEDINGS AND THEREFORE, NO ADDITION CAN BE MADE 5.7 HAVING CONSIDERING THE MATERIAL AVAILABLE ON RECORD, I FIND THAT NO SUCH EVIDENCE WAS FILED BEFO RE THE AO IN THE COURSE OF RE-ASSESSMENT PROCEEDINGS AND THE AO IN HIS ORDER HAS CLEARLY STATED THIS FACT. THE APPELLANT H AS NOT FILED AN APPLICATION UNDER RULE46A OF THE I.T. RULES FOR SEEKING THE PERMISSION FOR FILING OF ADDITIONAL EVIDENCE IN THE COURSE OF PRESENT PROCEEDINGS. THE APPELLANT HAS RATHER ST ATED THAT THIS EVIDENCE WAS FILED BEFORE THE AO IN THE COURSE OF EARLIER RE-ASSESSMENT PROCEEDINGS. I HAVE EXAMINED THE CASE RECORDS AND DO NOT FIND ANY REPLY ENCLOSING THE ABOVE MENTI ONED DETAILS BEING FILED BY THE APPELLANT ON RECORD. ACC ORDINGLY, I REJECT THE ADDITIONAL EVIDENCE FILED BY THE APPELLA NT. 5.8 IN VIEW OF THE ABOVE DISCUSSION, I HOLD THAT AO WAS JUSTIFIED IN MAKING AN ADDITION OF RS. 8,60,784 /- ON ACCOUNT OF LONG TERM CAPITAL GAIN AND CONFIRM THE SAME. 2.4 DURING THE COURSE OF HEARING, THE LD. AR REITER ATED THE SAME ARGUMENTS AS MADE IN THE WRITTEN SUBMISSION HEREUND ER FILED BEFORE THE LD. CIT(A) TO QUASH THE REOPENING OF ASSESSMENT U/ S 147. GROUND NO.1 ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 6 ALL THE FACTS & CIRCUMSTANCES STATED AT THE TIME OF RECORDING REASONS FOR RE-OPENING ARE AVAILABLE BEFORE THE LD. AO AT THE TIME OF COMPLETION OF ASSESSMENT PROCEEDINGS U/S 143(3) VIDE ORDER DT.26.12.2008 (PB-1) ITSELF IN REGARD TO PROCEEDING S INTIATED U/S 147 AFTER RECORDING REASONS (PB-2) AND ISSUING NOTI CE U/S 148 DT.22.08.2007 (PB-3) AND AFTER MAKING DETAILED QUER RIES AND ENQUIRIES VIDE LETTER NO.518 DT.30.10.2008 (PB-4) O F THE LD.AO. REASONS RECORDED AT BOTH THE TIMES ARE THE SAME AND IDENTICAL AND THE INCOME ESCAPED RS.860784/- STATED IN BOTH THE R EASONS RECORDED U/S 148 ARE THE SAME AND NO NEW FACT OR CI RCUMSTANCE ARISES AFTER COMPLETION OF THE ASSESSMENT, HENCE IT IS ONLY CHANGE OF OPINION AND FOR CHANGE OF OPINION ANY COMPLETED ASS ESSMENT CANNOT BE RE-OPENED, HENCE RE-OPENING MADE IS ILLEG AL, UNJUSTIFIED AND AGAINST NATURAL JUSTICE, THEREFORE THE SAME WAS NEEDED TO BE QUASHED IMMEDIATELY. IN REASONS RECORDED U/S 148(2) ON DT.30.03.2012 (PB -5) THE LD.AO HAS STATED IN PARA 2 THAT ON GOING THROUGH THE ASS ESSMENT RECORDS IT IS NOTICED THAT THE ASSESSEE HAD NOT FIL ED ANY EVIDENCE REGARDING NO. OF SHARES PURCHASED, RATE AT WHICH SH ARES PURCHASED, S.NO. OF SHARE CERTIFICATES, PURCHASES/S ALES INVOICES OF SHARES, NAME OF BROKER THROUGH WHICH SHARES WERE PU RCHASED. ON PERUSAL OF THE ASSESSMENT ORDER PASSED U/S 143(3 ) DT.26.12.2008 (PB-1), IT IS EVIDENT THAT THE LD.AO HAS SPECIFICALLY STATED THAT WRITTEN REPLY WAS RECEIVED, RETURN AS FILED HAS BEEN CONSIDERED AND AFTER CONSIDERATION OF INCOME AS DEC LARED IS HEREBY ACCEPTED. KEEPING IN VIEW OF THE ABOVE STATEMENTS IN THE ASSE SSMENT ORDER ITSELF REASONS RECORDED ON 30.03.2012 FOR RE-OPENIN G ARE ABSOULUTELY WRONG AS THE DETAILED REPLIES WERE FURN ISHED AND ALL THE DETAILS REQUIRED VIDE YOUR LETTER REF.NO.DCIT/C IR/BPR/2008- 09/518 DT.30.10.2008 (PB-4) WERE FURNISHED VIDE OUR WRITTEN REPLY ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 7 AND THE SAME WERE CONSIDERED. THE LD.AO AGAIN VIDE LETTER REF.NO.DCIT/CIR/BPR/2012-13/619 DT.13.02.2013 (PB-6 ) HAS ISSUED THE ALMOST SIMILAR QUESTIONARE AS DT.30.10.2 008 (PB-4) DUE TO GOD KNOWN REASONS. WHEN ALL THE DETAILS AND FACTS WERE CONSIDERED WHIL E PASSING THE ASSESSMENT ORDER DT.26.12.2008 (PB-1) THERE IS NO R EASONS TO RE- OPEN THE CASE AGAIN AND AGAIN ON THE SAME REASONS. THIS CASE WAS RE-OPENED BY ISSUING NOTICE U/S 148 DT.22.08.2007 A ND ASSESSED ON THE RETURNED INCOME AND AGAIN ON THE SAME FACTS AND CIRCUMSTANCES THE SAME HAS BEEN RE-OPENED BY ISSUIN G NOTICE U/S 148 DT.30.03.2012 WHICH IS UNJUSTIFIED AND BAD LAW AND NEEDS TO BE QUASHED, IT HAS CREATED UNWARRANTED HARRESSMENT TO THE ASSESSEE . DURING THE COURSE OF ORIGINAL RE-ASSESSMENT PROCEED INGS THE ASSESSEE HAS FURNISHED THE FOLLOWINGS:- 1. PHOTOCOPY OF BANK PASS BOOK FROM WHICH TRANSACTI ONS OF SHARES OF M/S SUNSHINE & BESTY WERE MADE (PB-7 TO 9 ); 2. PHOTOCOPIES OF BILL & DIFFERENCE STATEMENT AND CONTRACT NOTE OF M/S P.K.AGRAWAL & CO., MEMBER OF THE CALCUTTA STOCK EXCHANGE ASSOCIATION LTD. 2-B, GRANT LANE, 4 TH FLOOR, ROOM NO.65, CALCUTTA-700 012 (PB-10 TO 13) IN SUPPORT OF SALES AND PURCHASES OF SHARES. 3. SHARES IN KAYVEEA FOR RS.22,560/- WERE PURCHASED ON 02.05.2003 OUT OF MONEY AVAILABLE WITH THE ASSESSEE IN HER PERSONAL EFFECTS ACCUMULATED OUT OF PAST SAVINGS. 4. PHOTOCOPIES OF CONTRACT NOTES IN SUPPORT OF PURC HASES AND SALES OF 3000 NOS. SHARE OF KAYVEEA (PB-12 & 13 ). FURTHER ALL THE DETAILS AND FACTS OF THE SALES AND PURCHASES OF SHARES WERE SUBMITTED IN THE ORIGINAL RETURN OF INC OME AS EVIDENT FROM THE ORIGINAL COMPUTATION OF INCOME (PB-14 TO 1 5) AND REVISED COMPUTATION OF INCOME (PB-16 TO 17) SUBMITTED ALONG WITH THE ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 8 RETURN OF INCOME IN RESPONSE TO NOTICE U/S 148. NO FACT WAS ESCAPED BY THE ASSESSEE. COMPLETE DETAILS SALES AND PURCHASES OF RELEVANT SH ARES IN REGARD TO EXEMPTED INCOME OF LONG TERM CAPITAL GAIN ON SHA RES U/S 10(38) WERE GIVEN IN DETAIL IN THESE COMPUTATIONS OF INCOM E, WHICH WERE CONSIDERED VERY WELL BY THE LD.AO AT THE TIME OF CO MPLETING THE ORIGINAL ASSESSMENT U/S 143(3) VIDE ORDER DT.26.12. 2008 (PB-1). IT IS ALSO SURPRISING THAT THE LD.AO CONCEALED THE FACT OF PREVIOUS RE-OPENING OF THE ASSESSMENT VIDE ISSUING NOTICE U/S 148 DT.22.08.07 AND NO WHERE STATED THIS MATERIAL AND I MPORTANT FACT IN THE ORDER UNDER APPEAL, WHICH IS REFLECTING THE HAR ASSING AND ARBITRARY ATTITUDE OF THE LD.AO. ALL THESE FACTS AND SUBMISSIONS WERE CONSIDERED AT THE TIME OF PASSING ASSESSMENT ORDER ON 26.12.2008 (PB-1) BY TH E THAN LD.AO AT THE TIME OF COMPLETION OF THE ORIGINAL RE-ASSESS MENT U/S 143(3). IT IS ALSO VERY WORTHWHILE TO MENTION HERE THAT AS EVIDENT FROM THE FIRST PARA AT PAGE NO.1 OF THE ORDER UNDER APPEAL T HE LD.AO HAD NOT DISPUTED THE SALE OF SHARES DURING THE A.Y.2005 -06 BUT DISPUTED THE INVESTMENT OF RS.22560/- OF PURCHASING THE SHAR ES IN THE BALANCE SHEET AS AT 31.03.2004, WHILE THIS FACT IS NOT RELEVANT TO THE A.Y. CONCERNED I.E., 2005-06 IN ANY WAY. IF ANY INVESTMENT HAD NOT SHOWN IN THE BALANCE SHEE T AS AT 31.03.2004 I.E., A.Y.2004-05 THE CASE FOR THE ASSES SMENT YEAR 2005-06 CANNOT BE RE-OPENED IN ANY WAY AND THESE EN QUIRIES CAN ONLY BE MADE IN THE A.Y.2004-05. FURTHER THE LD.AO AT FIRST PARA AT PAGE NO.1 OF THE ORDER UNDER APPEAL HAS STATED THAT THE ASSESSEE HAS NOT DISCLOS ED INCOME TO THE EXTENT OF RS.8,60,784/- IN HIS RETURN OF INCOME, WH ILE AS EVIDENT FROM PB-14 & PB-15 THIS INCOME OF RS.8,60,784/- HAS BEEN VERY CLEARLY SHOWN AND EXEMPTION U/S 10(38) OF THE I.T.A CT,1961 HAS ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 9 BEEN CLAIMED AN ALLOWED BY THE LD. AO VIDE ASSESSME NT ORDER PASSED U/S 143(3) DT.26.12.2008 (PB-1). HENCE KEEPING IN VIEW OF THE ABOVE THERE IS NO UNDE R ASSESSMENT OF INCOME AND NO INCOME HAS ESCAPED. THE LD.AO EXAMINED IN DEPTH ALL THE FACTS AND CIRCU MSTANCES AT THE TIME OF COMPLETING THE ASSESSMENT U/S 143(3) TO HIS UTMOST SATISFACTION AND AFTER CONSIDERING THEM COMPLETED T HE ASSESSMENT PROCEEDINGS U/S 143(3). ALL THE FACTS & CIRCUMSTANCES STATED AT THE TIME OF RECORDING REASONS FOR RE-OPENING THE ASSESSMENT WERE AVAILABL E BEFORE THE LD.AO AT THE TIME OF COMPLETION OF ASSESSMENT U/S 1 43(3) ITSELF AND NO NEW FACT OR CIRCUMSTANCE ARISES AFTER COMPLETION OF THE ASSESSMENT, HENCE IT IS DUE TO CHANGE OF OPINION OF THE LD. AO ONLY AND HE RE-OPENED THE ASSESSMENT STATING THAT DEDUCT ION OF REPAIRS AND ELECTRICITY BILL OF DOMESTIC USE WERE WRONGLY A LLOWED. RELIANCE HAS BEEN PLACED ON THE FOLLOWING LANDMARK JUDGEMENTS:- IN THIS CASE, THERE IS NOTHING NEW WHICH HAS COME T O THE NOTICE OF REVENUE. THE ACCOUNTS HAD BEEN FURNISHED BY THE PET ITIONER WHEN CALLED UPON. THEREAFTER, THE ASSESSMENT WAS COMPLET ED U/S 143(3). NOW A MERE RELOOK, THE OFFICER HAS COME TO THE CONC LUSION THAT THE INCOME HAS ESCAPED ASSESSMENT AND HE IS OF COURSE J USTIFIED IN HIS ANALYSIS. IN OUR VIEW, THIS IS NOT SOMETHING WHICH IS PERMISSIBLE UNDER THE PROVISO TO SECTION 147 WHICH SPEAKS ABOUT A FAILURE ON THE PART OF THE ASSESSEE TO MAKE A PROPER RETURN. R EJECTION OF OBJECTIONS OF THE ASSESSEE TO THE REOPENING OF THE ASSESSMENT BY THE AO IS CLEARLY A CHANGE OF OPINION. IN THE CIRCUMSTA NCES, WE ARE OF THE VIEW THAT THE ORDER OF REOPENING THE ASSESSMENT WAS NOT MAINTAINABLE. ACIT & OTHERS V. ICICI SECURITIES PRI MARY DEARLERSHIP LTD. (2012) 348 ITR 299 (SC) WHEN THERE WAS NO FINDING THAT ASSESSEE DID NOT DIS CLOSE FULLY AND TRULY ANY MATERIAL FACT NECESSARY FOR MAKING ASSESS MENT, NO ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 10 REASSESSMENT PROCEEDINGS SHOULD BE INITIATED. THE A CIT CIRCLE-3, JODHPUR V. M/S AZTEC SHIVA HANDICRAFTS & ARTS P.LTD ., JODHPUR- ITAT, JODHPUR 49 TAXWORLD 65. THERE WAS NOTHING IN THE REASONS RECORDED TO SHOW T HAT ANY TANGIBLE MATERIAL HAD COME INTO THE POSSESSION OF T HE AO SUBSEQUENT TO THE ISSUE OF INTIMATION U/S 143(1), T HE NOTICE REFLECTED AN ARBITRARY EXERCISE OF THE POWER CONFERRED U/S 14 7, HENCE THE RE- ASSESSMENT PROCEEDINGS ARE INVALID. CIT V.ORIENT CR AFT LTD.(2013) 354 ITR 536 (DELHI HC) TRIBUNAL SET ASIDE THE RE-ASSESSMENT PROCEEDINGS HO LDING THAT SAID PROCEEDINGS WERE BASED ON MERE CHANGE OF OPINION. I T WAS HELD THAT SINCE ASSESSEES CLAIM OF EXEMPTION U/S 10B WA S SCRUTINIZED BY AO IN DETAIL IN ORIGINAL ASSESSMENT, TRIBUNAL WAS J USTIFIED IN SETTING ASIDE THE ASSESSMENT PROCEEDING. CIT V.FAG BEARING INDIA LTD. 215 TAXMAN 387 (GUJRAT HC) AO COMPLETED THE ASSESSMENT U/S 143(3). SUBSEQUENTL Y, AUDIT PARTY EXAMINED THE ASSESSMENT ORDER AND RAISED OBJECTIONS TO THE EFFECT THAT THERE WAS IRREGULAR ALLOWANCE OF SOME EXPS. BY AO INVOKING SHORT LEVY OF TAX UPON THE ASSESSEE. THEREUPON AO I SSUED NOTICE U/S 148 SEEKING TO REOPEN THE ASSESSMENT. THERE WAS NO MATERIAL TO SHOW THAT AO HAD ANY INDEPENDENT APPLICATION OF MIN D. ACCORDINGLY, IT WAS HELD THAT THE NOTICE OF REOPENI NG WAS INVALID FOR AO HAVING NOT FORMED HIS INDEPENDENT BELIEF. TH EREFORE, IMPUGNED NOTICE OF REOPENING WAS LIABLE TO BE QUASH ED. JAGAT JAYANTILAL PARIKH V. DCIT 215 TAXMAN 444 (GUJRAT HC ). WHERE AO IN SCRUTINY ASSESSMENT HAD THOROUGHLY AND FULLY SCRUTINIZED THE ASSESSEES CLAIM AND PARTIALLY DISA LLOWED THE SAME, POWER OF REOPENING WAS NOT AVAILABLE AS IT AMOUNTED TO CHANGE OF OPINION. TRANSWIND INFRASTRUCTURE P.LTD. V. ITO 215 TAXMAN 111 (GUJRAT HC) KEEPING IN VIEW OF THE ABOVE DETAILED SUBMISSIONS A ND LANDMARK JUDGEMENTS OF THE APEX COURT AS WELL AS HIGH COURTS AND TRIBUNALS, ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 11 NOW IT IS VERY MUCH CLEAR THAT THE LD.AO ERRED IN R E-OPENING THE ASSESSMENT U/S 147, WHICH NEEDS TO BE QUASHED IN TH IS APPEAL. 2.5 FURTHER THE LD. AR OF THE ASSESSEE FILED FOLLOW ING GROUND-WISE WRITTEN SUBMISSION BEFORE US PRAYING THEREIN TO ALL OW THE APPEAL OF THE ASSESSEE. GROUND NO. 1 THE LD.CIT(A) HOLD THAT THE AO HAD RIGHTLY INITIATE D THE PROCEEDINGS U/S 147/148 OF THE ACT, ALLEGING THAT NO DETAIL IN THE FORM OF COPY OF BILLS FOR PURCHASES AND SALE S OF SHARES, COPY OF BANK STATEMENTS, COPY OF SHARE CERTIFICATES , PAYMENT OF STT BY THE BROKER, LISTING OF THE SHARES ETC. WE RE FILLED BY THE APPELLANT IN THE COURSE OF EALIER RE-ASSESSMENT PROCEEDINGS WHILE IN FACTS ALL THESE DETAILS CONTA INING PB-7 TO 17 WERE ALREADY FILLED BEFORE COMPLETION OF ORIG INAL RE- ASSESSMENT PROCEEDINGS ALREADY COMPLETED VIDE ORDER U/S 143(3) DT.26.12.2008 (PB-1) AND ALL THESE WERE AVAI LABLE AT THE TIME OF COMPLETION OF THE RE-ASSESSMENT PROCEED INGS SUBJECT TO THIS APPEAL. GROUND NO.2- AS STATED IN 1 ABOVE SINCE ALL THE PAPERS/ DOCUMENT S/ DETAILS CONTAINING PB-7 TO 17 WERE ALREADY FILLED BEFORE CO MPLETION OF ORIGINAL RE-ASSESSMENT PROCEEDINGS ALREADY COMPL ETED VIDE ORDER U/S 143(3) DT.26.12.2008 (PB-1) AND ALL THESE WERE AVAILABLE AT THE TIME OF COMPLETION OF THE RE- ASSESSMENT PROCEEDINGS SUBJECT TO THIS APPEAL NO APPLICATION U NDER RULE 46A OF THE IT RULES SEEKING THE PERMISSION FOR FILI NG OF ADDITIONAL EVIDENCE WAS MADE. HENCE WHEN NO APPLICA TION UNDER 46A WAS MADE BEFORE THE LD.CIT(A), THE APPEAL LATED AUTHORITY HAS ERRED IN REJECTING THE SO CALLED ADDI TIONAL ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 12 EVIDENCE WHILE IN FACT THERE WAS NO ADDITIONAL EVID ENCE. ALL THE ENTIRE EVIDENCES VERY WELL AVAILABLE BEFORE THE LD.AO BEFORE COMPLETION OF ORIGINAL RE-ASSESSMENT PROCEED INGS ALREADY COMPLETED VIDE ORDER U/S 143(3) DT.26.12.20 08 (PB- 1). GROUND NO.3- SINCE THE ASSESSEE HAD ALREADY SHOWN THE ENTIRE INC OME OF LONG TERM CAPITAL GAIN ON SALES OF SHARES OF RS.860 784/- IN THE RETURNS OF INCOME ITSELF AND CLAIMED THE DEDUCT ION U/S 10(38) WHICH WERE WELL ACCEPTED AND ALLOWED BY THE LD.AO VIDE HIS ORDER U/S 143(3). ALL THE TRANSACTIONS OF SALES AND PURCHASES ARE EVIDENCED FROM THE BANK STATEMENT AS WELL AS CONTRACT NOTES AND BILL & DIFF.STATEMENTS ISSUED BY THE MEMBER OF THE STOCK EXCHANGE AND NO ADVERSE OBSERVA TION HAS BEEN MADE BY THE LD.AO THE DISALLOWANCE OF EXEM PTION U/S 10(38) OF RS.8,60,784/- IN UNJUSTIFIED AND NEED S TO BE DELETED. RELIANCE HAS BEEN PLACED ON THE JUDGEMENT OF HONLE JODHPUR BENCH OF ITAT IN THE CASE OF ACIT V. SMT.BI NDU BOHRA & RAJENDRA KUMAR BOHRA 48 TAX WORLD 40 (2012) WHEREIN THE HONLE ITAT CONFIRMED THE FINDING OF TH E CIT(A) RELYING ON THE ORDER OF HONLE RAJASTHAN HIGHCOURT IN THE CASE OF CIT V.PUSHPA MALPANI 49 DTR (RAJ.) 312 WHER EIN THE CIT(A) HELD THAT SINCE ASSESSEE HAS FURNISHED A LL THE REQUIRED DOCUMENTS LIKE CONTRACT NOTE, PURCHASES BI LL, SALES BILL, DMAT A/C, A/C PAYEE PAYMENT DETAILS ETC. & TH ERE WAS NO IOTA OF EVIDENCE WHETHER DIRECT OR INDIRECT TO P ROVE THAT ANY CASH FROM UNACCOUNTED MONEY HAD FLOWN FROM THE ASSESSEE TO THE SELLER, THE TRANSACTION IS OF LTCG & NOT OF INCOME FROM OTHER SOURCES. THE LD.CIT(A) HAS NOT CONSIDERED SUBMISSIONS OF THE ASSESSEE AND ONLY REJECTED THE APPLICATION UNDER RU LE 46A ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 13 WHILE NO SUCH APPLICATION WAS MOVED BY THE APPELLAN T AND HAS NOT GIVEN THE DECISION OF THE MERITS ARGUED AND AVAILABLE BEFORE HIM. 2.6 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 2.7 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AS REGARDS GROUND NO. 1 OF THE ASSESSEE, IT EMERGES FROM RECORDS THAT THE REASONS RECORDED AT THE TIME OF ORIGINAL RE- ASSESSMENT PROCEEDINGS WERE COMPLETED VIDE ORDER P ASSED U/S 143(3) DATED 26.12.2008 (PB-1) AND THE RE-ASSESSMENT PRO CEEDINGS INITIATED VIDE ISSUING OF NOTICE U/S 148 DATED 30.03.2012 ARE THE SAME. ALL THE FACTS STATED AT THE TIME OF RECORDING REASONS FOR RE-OPEN ING THE ASSESSMENT WERE AVAILABLE BEFORE THE AO AT THE TIME OF COMPLETION O F ASSESSMENT U/S 143(3) ITSELF AND NO NEW FACT OR CIRCUMSTANCE ARISE S AFTER COMPLETION OF THE ASSESSMENT. THEREFORE, IT IS DUE TO CHANGE OF O PINION OF THE AO. IN THIS CASE, THERE IS NOTHING NEW WHICH HAS COME TO T HE NOTICE OF REVENUE. ALL THE COMPLETED DETAILS AND EVIDENCES OF THE TRAN SACTIONS MADE HAD BEEN FURNISHED BY THE ASSESSEE WHEN CALLED FOR. THE REAFTER, THE ASSESSMENT WAS COMPLETED U/S 143(3). HENCE, WE ARE OF THE VIEW THAT THE AO HAD WRONGLY RE-OPENED THE CASE AT THE SECOND TIM E WHEN ON THE SIMILAR AND IDENTICAL REASONS THE RE-OPENING PROCEE DINGS WERE ALREADY COMPLETED. THUS, RE-OPENING PROCEEDINGS WERE UNJUST IFIED AND THIS ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 14 GROUND NO. 1 OF THE ASSESSEE IS ALLOWED. AS REGA RDS GROUND NO. 2, IT EMERGES FROM THE RECORDS THAT ALL THE DESIRED DOCUM ENTS CONTAINING PAPER BOOK PAGES 7 TO 17 WERE ALREADY FILED BEFORE COMPLE TION OF ORIGINAL ASSESSMENT PROCEEDINGS WHICH WAS COMPLETED VIDE ORD ER DATED 26-12- 2008 U/S 143(3) OF THE ACT AND THESE DETAILS WERE A VAILABLE DURING REASSESSMENT PROCEEDINGS ALSO. THERE WAS NO APPLICA TION MOVED ON BEHALF OF THE ASSESSEE FOR SEEKING PERMISSION FOR F ILING ADDITIONAL EVIDENCE UNDER RULE 46A BEFORE THE LD. CIT(A). THUS , IN VIEW OF ABOVE, THE GROUND NO. 2 OF THE ASSESSEE IS ALLOWED. AS REGARDS NO.3, IT EMERGES FROM RECORD THAT THE SINCE THE ASSESSEE HA D ALREADY SHOWN THE ENTIRE INCOME OF LONG TERM CAPITAL GAIN ON SALES OF SHARES OF RS.8,60,784/- IN THE RETURNS OF INCOME ITSELF AND C LAIMED THE DEDUCTION U/S 10(38) WHICH WERE WELL ACCEPTED BY THE AO VIDE HIS ORDER U/S 143(3). ALL THE TRANSACTIONS OF SALES AND PURCHASES ARE EVIDENC ED FROM THE BANK STATEMENT AS WELL AS CONTRACT NOTES AND BILL & DIFF . STATEMENTS ISSUED BY THE MEMBER OF THE STOCK EXCHANGE AND NO ADVERSE OBS ERVATION HAS BEEN MADE BY THE AO. THUS THE DISALLOWANCE OF EXEMPTION U/S 10(38) OF RS.8,60,784/- IS NOT JUSTIFIED WHICH IS DELETED. IN VIEW THEREOF, GROUND NO. 3 OF THE ASSESSEE IS ALLOWED. ITA NO. 167//JP/2015 SMT. LALITA AGARWAL VS. DCIT, CIRCLE- BHARATPUR . 15 6.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/02/2016 . SD/- SD/- (T.R. MEENA) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/02/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. LALITA AGARWAL, BHARATPUR 2. IZR;FKHZ@ THE RESPONDENT- THE DCIT, CIRCLE- BHARATPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), JAIPUR 3. VK;DJ VK;QDR@ CIT, JAIPUR 4. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 5. XKMZ QKBZY@ GUARD FILE (ITA NO.167/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR