ACIT, New Delhi V. Sh Arvind Khanna, New Delhi

ITA 1703/DEL/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4218 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 05-05-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 11-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift; Search and seizure; Opportunity of being heard; Fair market value; Difference of opinion; Valuation report; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 1 OF 12 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 1702/DEL/2012 ASSESSMENT YEAR: 2007-08 ACIT CENT. CIRCLE 5, NEW DELHI. VS ARVIND KHANNA 2, SHANTI FARMS, CHANDANHOLA, MEHRAULI, NEW DELHI. AAIPK9007F (APPELLANT) (RESPONDENT) ITA NO. 1703/DEL/2012 ASSESSMENT YEAR: 2004-05 ACIT CENT. CIRCLE 5, NEW DELHI. VS ARVIND KHANNA 2, SHANTI FARMS, CHANDANHOLA, MEHRAULI, NEW DELHI. AAIPK9007F (APPELLANT) (RESPONDENT) & CROSS OBJECTION NO. 205/DEL/2012 (IN ITA NO. 1703/DEL/2012) ASSESSMENT YEAR 2004-05 ARVIND KHANNA 2, SHANTI FARMS, CHANDANHOLA, MEHRAULI, NEW DELHI. AAIPK9007F VS ACIT CENT. CIRCLE 5, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SARABJEET SINGH, DR RESPONDENT BY : SH. SAHIL AGARWAL, ADV. & SH. SHAILESH GUPTA, CA ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 2 OF 12 DATE OF HEARING : 05.05.2016 DATE OF PRONOUNCEMENT : 05.08.2016 ORDER PER SUDHANSHU SRIVASTAVA, J.M. ITA NO. 1702/DEL/2012 HAS BEEN PREFERRED BY THE DE PARTMENT AGAINST THE ORDER DATED 31/01/2012 PASSED BY THE LD . COMMISSIONER OF INCOME TAX (APPEALS)-XXXI, NEW DELHI FOR AY 2007-08 . ITA NO. 1703/DEL/2012 HAS BEEN PREFERRED BY THE DEPARTMENT AGAINST THE ORDER DATED 31/01/2012 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXI, NEW DELHI FOR AY 2004-05, WHEREAS T HE CO NO. 205/DEL/2012 HAS BEEN PREFERRED BY THE ASSESSEE IN AY 2004-05. SINCE ALL THESE APPEALS WERE HEARD TOGETHER THEY ARE BEIN G DISPOSED OF THROUGH THIS COMMON ORDER. 2. ITA NO. 1703/DEL/2012 & CO NO. 205/DEL/2012 : ORIGINAL RETURN FOR AY 2004-05 WAS FILED ON 01/11/2 004 DECLARING NET INCOME OF RS. 2,637,860/-. SUBSEQUENTLY, A NOTICE U/S 148 WAS ISSUED ON 11/12/2006 AND THE INCOME WAS ASSESSED AT RS. 18 ,102,210/- AFTER MAKING AN ADDITION ON ACCOUNT OF GIFTS RECEIVED AMO UNTING TO RS. ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 3 OF 12 15,464,351/- FROM SHRI VIPIN KHANNA AS UNEXPLAINED INVESTMENT. AGGRIEVED, THE ASSESSEE CHALLENGED THE ADDITIONS BE FORE THE LD. CIT (APPEALS) ON MERITS AND ALSO CHALLENGED THE VALIDIT Y OF THE INITIATION OF REASSESSMENT PROCEEDINGS. THE LD. CIT (APPEALS) DI SMISSED THE ASSESSEES PLEA ON THE LEGAL ISSUE OF THE VALIDITY OF REASSESSMENT PROCEEDINGS BUT DELETED THE ADDITION ON MERITS. ON FURTHER APPEAL BY THE DEPARTMENT BEFORE THE ITAT, THE ITAT UPHELD THE ACTION OF THE LD. CIT (APPEALS). ON STILL FURTHER APPEAL BY THE DEPA RTMENT BEFORE THE HONBLE DELHI HIGH COURT, THE MATTER WAS REMITTED B ACK TO THE LD. CIT (APPEALS) VIDE ORDER DATED 15/04/2015 FOR THE LIMIT ED PURPOSE OF EXAMINING/VERIFYING THE DOCUMENTS RELIED UPON BY TH E ASSESSEE TO PROVE THE VALIDITY OF THE GIFTS RECEIVED. 3. MEANWHILE, THE AO ISSUED ANOTHER NOTICE U/S 148 AFTER RECORDING THE FOLLOWING REASONS: 2. ON PERUSAL OF RECORDS, IT IS OBSERVED THAT SH. ARVIND KHANNA HAS RECEIVED RS. 4,71,56,251/- AS GIFT FROM HIS FATHER SH. VIPIN KHANNA IN HIS STANDARD CHARTED BANK SB AC COUNT NO. 52210021264 FROM ABROAD. BUT, IN THE ASSESSMENT ORD ER U/S 148/143(3) DATED 31.12.2007 THERE IS ADDITION OF RS . ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 4 OF 12 1,54,64,351/- WAS MADE ON ACCOUNT OF UNEXPLAINED GI FTS RECEIVED. THE BALANCE AMOUNT OF RS. 3,16,91,900/- R EMAINED UNEXPLAINED AND SAME HAD TO BE ADDED IN THE ASSESSE D INCOME, WHICH HAS ESCAPED ASSESSMENT. 3. FURTHER, DURING THE ASSESSMENT FOR THE A.Y. 2006 -07, IT IS NOTICED THAT THE ASSESSEE FILED A DECLARATION THAT THE ENTIRE CONSIDERATION OF RS. 8,24,83,333/- FOR PURCHASE OF 83987 EQUITY SHARE OF M/S TROJAN DEVELOPERS P. LTD. WAS PROVIDED BY ME AS GIFT TO MY WIFE MRS. SHAGUN KHANNA AND HE FURTHER FILED THE PAYMENT SCHEDULE OF THE PAYMENTS MADE TO GYAN ENTER PRISES P. LTD., ASHA BURMAN AND AMIT BURMAN AS SALE CONSIDERA TION FOR PURCHASING THE SHARES OF TROJAN DEVELOPER P. LTD. TO DETERMINE THE CORRECT VALUE OF THE PROPERTY WHIC H WAS THE ONLY OWNED ASSET OF THE M/S TROJAN DEVELOPERS P. LT D, A REFERENCE WAS SENT TO THE VALUATION OFFICER U/S 55A OF THE I T. ACT, SUBSEQUENT TO THE ISSUE OF THE NOTICE U/S 148 DT. 24.09.2007. AN ORDER U/S 55A OF THE IT. ACT, 1961 READ WITH, SE CTION 16A(5) OF THE WEALTH TAX ACT, 1957 WAS RECEIVED WHICH INDI CATED THAT THE FAIR MARKET VALUE ON THE DATE OF THE TRANSFER ( I.E. 30.10.2003) WAS DETERMINED AT RS: 9,87,08,000/-. TH EREFORE IT BECAME APPARENT THAT A CONCERN THAT HAD ASSETS WORT H NET ASSET VALUE AT RS. 9,87,08,000/- WOULD NOT BE TRANSFERRED FOR ANY SUM BELOW THIS AMOUNT AND THIS GAVE RISE TO THE BELIEF THAT BESIDES THE AMOUNT SHOWN AS PAID BY THE PURCHASE PARTY, A S UM OF RS. 1,62,08,000/- WAS ALSO PAID AS ON MONEY, OVER AND A BOVE THE DECLARED VALUE OF THE SHARES. ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 5 OF 12 THEREFORE, THE DIFFERENCE BETWEEN SALE PRICE DISCLO SED AND PRICE DETERMINED BY VALUER IS ADDED TO THE INCOME OF THE ASSESSEE IN THE PROPORTION OF PAYMENT MADE AS PER PAYMENT SCHED ULE. THE ASSESSEE MADE PAYMENT IN DIFFERENT F.Y. AS BELOW: - 8,24,83,333/- THE RATIO OF PAYMENT MADE BY THE ASSESSEE DURING DI FFERENT F.YS IS WORKED OUT AS 40:100:475:210 = 8:20:95:42 AS PER THIS RATIO THE UNDISCLOSED AMOUNT OF INVESTMENT FOR THE A.Y. 2 004-05 COMES TO RS. 9,87,08,000RS. 8,25,00,000= 1,62,08,0 00 X 8/165=RS.7,85,842. THEREFORE, AS ALREADY MENTIONED THAT SH. ARVIND KHA NNA PAID THE TOTAL SALE CONSIDERATION ON BEHALF OF SMT. SHAG UN KHANNA FOR PURCHASE OF M/S TROJAN DEVELOPERS P LTD. THEREF ORE, AN AMOUNT OF RS. 7,85,8421/- IS ESCAPED INCOME OF SHRI ARVIND KHANNA FOR A.Y. 04-05 AND WHICH WAS NOT EARLIER BRO UGHT TO TAX. 4. THE ASSESSEE OBJECTED TO THE REOPENING. HOWEVER, HIS OBJECTIONS WERE NOT ACCEPTED AND AN ADDITION OF RS. 31,691,900/- WA S MADE ON ACCOUNT OF GIFTS RECEIVED AND ANOTHER ADDITION OF RS. 785,842/- WAS MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT AND THE NET TAXABLE INCOME W AS WORKED OUT AT RS. 50,579,590/-. F .Y. AMOUNT 2003 - 04 40,00,000/ - 2004 - 05 1,00,00,000/ - 2005 - 06 4,74,83,333/ - 2006 - 07 2.10,00,000/ - ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 6 OF 12 5. THE ASSESSEE PREFERRED FURTHER APPEAL BEFORE THE LD. CIT (APPEALS) CHALLENGING THE LEGALITY OF THE REASSESSMENT PROCEE DINGS AS WELL AS ON MERITS. THE LD. CIT (APPEALS) DISMISSED THE ASSESSEES LEGA L GROUND CHALLENGING THE INITIATION OF REASSESSMENT PROCEEDINGS. HOWEVER, O N MERITS THE ADDITIONS WERE DELETED. NOW THE DEPARTMENT HAS CHALLENGED THE IMP UGNED ACTION OF THE LD. CIT (APPEALS) IN DELETING THE ADDITION OF RS. 31,69 1,000/- AND RS. 785,842/- AND THE ASSESSEE HAS CHALLENGED THE UPHOLDING OF IN ITIATION OF REASSESSMENT PROCEEDINGS U/S 147/148 OF THE ACT THROUGH THE CO. AS THE OUTCOME OF THE CO WILL DETERMINE THE OUTCOME OF THE DEPARTMENTAL APPE AL ALSO, WE FIRST PROCEED TO ADJUDICATE ON THE CO OF THE ASSESSEE. 6. THE LD. AR SUBMITTED THAT THERE WAS NO FRESH MAT ERIAL BEFORE THE AO SO AS TO ENTITLE HIM WITH THE JURISDICTION TO RE-OPEN THE ASSESSMENT FOR A SECOND TIME. IT WAS SUBMITTED THAT ALL FACTS IN RELATION TO RECE IPT OF RS. 47,156,521/- AS GIFTS RECEIVED WAS ON RECORD AT THE TIME OF THE ORIGINAL ASSESSMENT PROCEEDINGS AND HAD BEEN DULY CONSIDERED IN THE ASSESSMENT ITSELF. NO NEW FACTS OR MATERIAL HAD COME INTO POSSESSION OF THE DEPARTMENT SUBSEQUENT T O THE PASSING OF THE ORIGINAL ASSESSMENT ORDER. IT WAS SUBMITTED THAT TH E AO HAD, AFTER CONSIDERING THE MATERIAL ON RECORD, MADE AN ADDITION OF RS. 15, 464,251/- IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND, THEREFORE, PROCEEDING T O REASSESS THE BALANCE ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 7 OF 12 AMOUNT OF GIFTS IN A SECOND ROUND OF RE-ASSESSMENT WAS NOT LEGALLY TENABLE. IT WAS FURTHER UNDERLINED THAT THE ADDITION OF RS. 15, 464,251/ -WAS SUBSEQUENTLY DELETED BY THE LD. CIT (A) ON MERITS. THE LD. AR AL SO SUBMITTED THAT OBJECTIONS RAISED BY THE ASSESSEE AGAINST THE REASS ESSMENT PROCEEDINGS WERE ALSO NOT DISPOSED OF BY THE AO THROUGH A SPEAKING O RDER AND HENCE THE REASSESSMENT PROCEEDINGS DESERVE TO BE QUASHED. IT WAS FURTHER SUBMITTED THAT THE SECOND ADDITION OF RS. 785,842/- MADE ON THE BA SIS OF VALUATION REPORT HAS BEEN DELETED BY THE LD. CIT (A) IN AY 06-07 AND THI S ORDER OF THE LD. CIT (A) HAS BEEN UPHELD BY THE ITAT. 7. THE LD. DR EMPHATICALLY SUPPORTED THE ORDER OF T HE AO AND SUBMITTED THAT REASSESSMENT PROCEEDINGS HAD BEEN INITIATED RIGHTLY . 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. A PERUSAL OF THE REASONS RECORDED BY THE AO CLEARLY S HOWS THAT THE ASSESSMENT ORIGINALLY COMPLETED U/S 143(3) OF THE ACT WERE REO PENED BY HIM WITHOUT ANY NEW MATERIAL OR INFORMATION WHICH COULD BE SAID TO HAVE COME INTO HIS POSSESSION AFTER THE COMPLETION OF THE ORIGINAL ASS ESSMENT. IT IS VERY MUCH CLEAR THAT THE ASSESSMENT WAS REOPENED ON THE BASIS OF FRESH APPLICATION OF MIND TO THE SAME MATERIAL WHICH WAS AVAILABLE EVEN AT THE TIME OF ORIGINAL ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 8 OF 12 ASSESSMENT. IT IS AMPLY CLEAR ON THE FACTS OF THE CASE THAT THE INITIATION OF REASSESSMENT PROCEEDINGS WAS BASED ON A MERE CHANGE OF OPINION OF THE AO WHICH IS NOT PERMISSIBLE IN LAW. WHEN A REGULAR AS SESSMENT IS PASSED IN TERMS OF PROVISIONS OF SECTION 143(3), PRESUMPTION CAN BE RAISED THAT SUCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND BY THE AO AN D SUBSEQUENT TO THAT THERE LIES NOTHING IN THE MOUTH OF THE AO TO SAY THAT SUC H AN ORDER WAS PASSED WITHOUT APPLICATION OF MIND AND THUS TO CONFER JURI SDICTION UPON HIM TO REOPEN THE PROCEEDINGS. IT IS A WELL SETTLED LAW THAT POW ER U/S 147 OF THE ACT CANNOT BE USED TO REVIEW AN EARLIER ORDER. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD., 256 ITR 1 HAS HEL D AS UNDER: WHEN A REGULAR ASSESSMENT IS PASSED IN TERMS OF SU B-SECTION (3) OF SEC. 143, A PRESUMPTION CAN BE RAISED THAT SUCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND. SUCH A PRESUMPTION CAN BE RAISED IN TERMS OF CLAUSE (E) OF SEC. 114 OF THE INDIAN EVIDE NCE ACT, 1872 THAT SUCH AN ACT HAS BEEN REGULARLY PERFORMED. IF IT BE HELD THAT AN ORDER WHICH HAS BEEN PASSED PURPORTEDLY WITHOUT APPLICATI ON OF MIND WOULD ITSELF CONFIRM JURISDICTION UPON THE AO TO RE OPEN THE PROCEEDINGS WITHOUT ANYTHING FURTHER, THE SAME WOUL D AMOUNT TO GIVING A PREMIUM TO AN AUTHORITY EXERCISING QUASI J UDICIAL FUNCTION TO TAKE BENEFIT OF ITS OWN WORKING. HENCE IT IS CL EAR THAT SEC. 147 OF THE ACT DOES NOT POSTULATE CONFERMENT OF POWER UPON THE AO TO REINITIATE REASSESSMENT PROCEEDINGS UPON A MERE CHA NGE OF OPINION WHICH IS NOT PERMISSIBLE. ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 9 OF 12 9. THE HONBLE APEX COURT AFFIRMED THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF KELVINATOR OF INDIA LTD. (SUPRA) IN ITS DECISION IN CIT VS. KELVINATOR OF INDIA LTD., 320 ITR 561 (SC). T HE HONBLE APEX COURT HELD AS UNDER: HOWEVER, ONE NEEDS TO GIVE SCHEMATIC INTERPRETATIO N TO THE WORDS REASON TO BELIEF FAILING WHICH, WE ARE AFRAID, SECT ION 147 WOULD GIVE ARBITRARY POWERS TO THE ASSESSING OFFICER THROUGH R EOPENING ASSESSMENTS ON THE BASIS OF MERE CHANGE OF OPINION, WHICH CANNOT BE PER SE REASON TO REOPEN. WE MUST ALSO KEEP IN MIND THE CONCEPTUAL DIFFERENCE BETWEEN POWER TO REVIEW AND POWER TO REA SSESS. THE AO HAS NO POWER TO REVIEW; HE HAS THE POWER TO REASSES S. BUT REASSESSMENT HAS TO BE BASED ON FULFILLMENT OF PRE- CONDITIONS AND IF THE CONCEPT OF CHANGE OF OPINION IS REMOVED, AS CON TENDED ON BEHALF OF THE DEPARTMENT, THEN, IN THE GARB OF REOPENING O F ASSESSMENT, REVIEW WOULD TAKE PLACE. ONE MUST BEAT THE CONCEPT OF CHANGE OF OPINION AS AN INBUILT TEST TO CHECK ABUSE OF POWER BY THE AO. 10. THE HONBLE SUPREME COURT IN ITO VS. LAKHMANI M EWALDAS 103 ITR 437 (SC) LAID DOWN THE FOLLOWING PRINCIPLES: A) THE POWERS OF THE AO TO REOPEN AN ASSESSMENT, THOU GH WIDE, ARE NOT PLENARY; B) THE WORDS OF THE STATUTE ARE REASON TO BELIEVE AND NOT REASON TO SUSPECT; C) THE REOPENING OF AN ASSESSMENT AFTER THE LAPSE OF M ANY YEARS IS A SERIOUS MATTER. SINCE THE FINALITY OF A JUDICIAL O R QUASI JUDICIAL PROCEEDINGS ARE SOUGHT TO BE DISTURBED, IT IS ESSEN TIAL THAT BEFORE TAKING ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 10 OF 12 ACTION OF REOPEN THE ASSESSMENT, THE REQUIREMENTS O F THE LAW SHOULD BE SATISFIED; D) THE REASONS TO BELIEVE MUST HAVE A MATERIAL BEARING ON THE QUESTION ON ESCAPEMENT OF INCOME. IT DOES NOT MEAN A PURELY SU BJECTIVE SATISFACTION OF THE ASSESSING AUTHORITIES; THE REASON BE HELD IN GOOD FAITH AND CANNOT MERELY BE A PRETENCE; E) THE REASONS TO BELIEVE MUST HAVE A RATIONAL CONNECT ION WITH OR RELEVANT BEARING ON THE FORMATION OF THE BELIEF. RATIONAL C ONNECTION POSTULATES THAT THERE MUST BE A DIRECT NEXUS OR LIVE LINK BETW EEN THE MATERIAL GIVING TO THE NOTICE OF THE AO AND THE FORMATION IS BELIEV ED REGARDING ESCAPEMENT OF INCOME. F) THE FACT THAT THE WORDS DEFINITE INFORMATION WHICH WERE THERE IN SEC. 34 OF THE ACT 1922 BEFORE 1948, ARE NOT THERE IN SEC. 147 OF THE1961 ACT, WOULD NOT LEAD TO THE CONCLUSION THAT ACTION CAN NO W BE TAKEN FOR REOPENING AN ASSESSMENT EVEN IF THE INFORMATION IS WHOLLY VAGUE, INDEFINITE, FARFETCHED OR REMOTE. 11. HAVING REGARD TO THE FACTS OF THE CASE IN THE I NSTANT CO BEFORE US AS WELL AS THE JUDICIAL PRONOUNCEMENTS AS DISCUSSED AFORESA ID, WE HAVE NO HESITATION IN HOLDING THAT FROM THE REASONS RECORDED IT IS VERY M UCH CLEAR THAT THERE WAS NO FRESH MATERIAL AVAILABLE WITH THE AO WHEN HE REOPEN ED THE ASSESSMENT WHICH WAS ORIGINALLY COMPLETED U/S 143(3). IT IS VERY MU CH A CHANGE OF OPINION BY THE AO AND HIS ACTION IS NOT LEGALLY TENABLE. THE ISSUE OF GIFTS WAS CONSIDERED BY THE AO AT LENGTH AND AN ADDITION WAS MADE WHICH WAS SUBSEQUENTLY DELETED BY THE LD. CIT (A). THEREAFTER, THE AO AGAIN PROCEE DED TO REASSESS THE GIFTED ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 11 OF 12 AMOUNT ON THE SAME SET OF FACTS AND RECORDS WHICH W ERE ALREADY BEFORE HIM. AS FAR AS THE ADDITION ON ACCOUNT OF DIFFERENCE IN VAL UATION IS CONCERNED, IT IS SEEN THAT THE AO PROCEEDED TO ISSUE THE NOTICE FOR REASS ESSMENT WITHOUT HAVING ANY PROOF WHATSOEVER ON RECORD TO ESTABLISH THAT SOME A MOUNT OVER AND ABOVE THE DISCLOSED AMOUNT WAS PAID BY THE ASSESSEE FOR PURCH ASE OF SHARES. THUS, THE AO PROCEEDED ONLY ON A REASON TO SUSPECT RATHER THA N ON A REASON TO BELIEVE. HENCE, WE HAVE NO HESITATION IN HOLDING THAT THE RE ASSESSMENT PROCEEDINGS CANNOT BE SUSTAINED AND WE QUASH THE SAME. 12. IN VIEW OF OUR FINDINGS IN THE CO, THE DEPARTME NTAL APPEAL ITA NO. 1703/DEL/2013 IS NOT MAINTAINABLE AND THE SAME IS D ISMISSED. 13. IN THE FINAL RESULT, THE CO OF THE ASSESSEE IS ALLOWED AND THE APPEAL OF THE DEPARTMENT IS DISMISSED. 14. ITA 1702/DEL/2012 IN THIS APPEAL, THE DEPARTMENT HAS AGITATED THE DEL ETION OF ADDITION MADE U/S 69A FOR RS. 26,476,472/- BY THE LD. CIT (A) VIDE OR DER DATED 31.01.2012 FOR AY 2007-08. ITA NOS. 1702, 1703/D/12 & CO 205/D/12 PAGE 12 OF 12 15. AT THE OUTSET, BOTH THE PARTIES AGREED THAT THE MATTER SHOULD BE RESTORED TO THE FILE OF THE LD. CIT (A) FOR FRESH ADJUDICATION. HENCE, WE RESTORE THE ISSUE TO THE FILE OF THE LD. CIT (A) FOR FRESH ADJUDICATION AFTER PROVIDING THE ASSESSEE A DUE OPPORTUNITY OF BEING HEARD. THE GROUND OF APPEA L IS ALLOWED. 16. IN THE FINAL RESULT, THE APPEAL OF THE DEPARTME NT IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/08/2016 SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SR IVASTAVA) VICE PRESIDENT JUDICIAL ME MBER DATED: 05/08/2016 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. 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