ZODIAC CLOTHING COMPANY LTD, MUMBAI V. DCIT 7(3), MUMBAI

ITA 1739/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2128 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 13-07-2015
• Assessment Year: 1997-1998
• Appeal Filed On: 13-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tangible material; Difference of opinion; Reason to believe; Change of opinion
• Section: 143(3); 147; 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.1739/MUM/2012 ASSESSMENT YEAR: 1997-98 M/S ZODIAC CLOTHING COMPANY LTD. 10/76 OFF HAINES RD. WORLI, MUMBAI -400018 / VS. D CIT 7 ( 3 ) AAYAKAR BHAVAN. M. K. RD. MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AAACZ0151A / ASSESSEE BY M S. VASANTI PATEL (AR) / REVENUE BY SHRI SATYAJIT MANDAL (DR) / DATE OF HEARING : 29/10/2015 / DATE OF ORDER: 30/11/2015 / O R D E R PER ASHWANI TANEJA (ACCOUNTANT MEMBER): THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-1 8, MUMBAI {(LD. CIT(A)}, DATED 16.12.2011 FOR THE ASSE SSMENT YEAR 1997-98, DECIDED AGAINST THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER (IN SHORT AO) U/S 143(3) RE AD WITH SECTION 254 OF THE ACT, ON THE FOLLOWING GROUNDS: ZODIAC CLOTHING CO. LTD. 2 THE LD. CIT(A) ERRED IN CONFIRMING THE REOPENING O F THE ASSESSMENT U/S.147 OF THE INCOME TAX ACT 1961. THE LD. CIT(A) ERRED IN CONFIRMING THE EXCLUSION OF DUTY DRAWBACK AMOUNTING TO RS.1,17,05,577/- WHILE COMPUT ING THE DEDUCTION U/S.80IA OF THE INCOME TAX ACT, 1961. 2 . DURING THE COURSE OF HEARING, MS. VASANTI PATEL, LD COUNSEL ON BEHALF OF THE ASSESSEE AND SHRI SATYAJIT MANDAL DEPARTMENTAL REPRESENTATIVE (LD DR) ON BEHALF OF TH E REVENUE, ARGUED THE CASE. 3. GROUND NO.1: IN THIS GROUND THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN CONFIRMING THE REOPENIN G OF THE ASSESSMENT U/S 147 OF THE INCOME TAX ACT 1961. 3.1. IN THIS CASE, THE BRIEF FACTS ARE THAT THE ORIGINA L ASSESSMENT FOR THE ABOVE ASSESSMENT YEAR WAS COMPLE TED U/S 143(3) ON 01.02.2000. SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED BY ISSUING NOTICE U/S 148 DATED 06.11.2000 AND THEREAFTER ASSESSMENT WAS FRAMED ON 26.02.2001 U/S 143 R.W.S. 147. THIS ASSESSMENT ORDER WAS CHALLENGED BY THE ASSESSEE AND THE APPEAL REACHED UP TO THE TRIBUNAL. THE TRIBUNAL VIDE ITS ORDER IN ITA NO.3118 & 3119/MUM/2 003 DATED 09.02.2007 RESTORED THE ASSESSMENT BACK TO TH E FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER FOLLOWING TH E DIRECTIONS OF HONBLE SUPREME COURT GIVEN IN THE CASE OF G.K.N . DRIVESHAFTS 259 ITR 19 (SC) BY FURNISHING REASONS FOR REOPENING THE CASE AND MEETING ALL THE OBJECTIONS A S MAY BE RAISED BY THE ASSESSEE, AND ALSO TO DEAL WITH ALL T HE ISSUES WITH RESPECT TO REOPENING U/S 147. ZODIAC CLOTHING CO. LTD. 3 3.2. ACCORDINGLY, RE-ASSESSMENT ORDER WAS FRAMED BY TH E AO IN THE SECOND ROUND VIDE ORDER PASSED U/S 143(3) R. W.S. 254 OF THE ACT, DATED 02.12.2007, WHEREIN IT WAS MENTIONED THAT COPY OF REASONS RECORDED WAS PROVIDED TO THE ASSE SSEE. IN THIS ASSESSMENT ORDER ALL THE ADDITIONS WERE REPEAT ED, AS WERE MADE IN ASSESSMENT ORDER PASSED IN FIRST ROUND. THE ASSESSEE CHALLENGED THIS ORDER BEFORE THE LD. CIT(A). IN THE APPEAL ORDER, REOPENING AS WELL AS ADDITIONS ON THE MERITS WERE UPHELD BY LD. CIT(A). 3.3. BEING AGGRIEVED, THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. LD. COUNSEL HAS VEHEMENTLY ARGUED HER CASE ON THE OPENING AS WELL AS ON THE MERITS OF THE CASE. W ITH RESPECT TO REOPENING, IT HAS BEEN ARGUED BY HER THAT REOPEN ING HAS BEEN DONE BY THE AO WITHOUT FOLLOWING THE DIRECTION S OF THE HONBLE TRIBUNAL AS WERE GIVEN IN THE FIRST ROUND A ND WITHOUT FOLLOWING MANDATE OF THE LAW. IN THIS REGARD, SHE D REW OUR ATTENTION ON THE COPY OF REASONS RECORDED AS WELL AS ON THE ASSESSMENT ORDER, TO POINT OUT VARIOUS LAPSES AND F ALLACIES COMMITTED BY THE AO. HER ARGUMENTS CAN BE SUMMARISE D AS UNDER:- (I) THE TRIBUNAL HAD GIVEN SPECIFIC AND CLEAR DIREC TION TO THE AO TO FURNISH THE COPY OF THE REASONS AND TO MEET ALL THE OBJECTIONS OF THE ASSESSEE BY WAY OF SPEAKING ORDER , BUT THE AO FAILED TO DISPOSE OF AND MEET THE OBJECTIONS FIL ED BY THE ASSESSEE AND PROCEEDED WITH THE FRAMING OF THE REAS SESSMENT ORDER WITHOUT FOLLOWING THE PROCEDURE AS PRESCRIBED BY HONBLE SUPREME COURT. ZODIAC CLOTHING CO. LTD. 4 (II) IT HAS BEEN FURTHER SUBMITTED THAT THE REASON S ARE BASED UPON CHANGE OF THE OPINION OF THE AO. THE AO HAS RE LIED UPON, IN THE REASONS RECORDED, THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF STERLING FOODS LTD. 237 ITR 57 9 WHICH WAS ALWAYS AVAILABLE WITH THE AO AT THE TIME OF FRA MING OF THE ORIGINAL ASSESSMENT ORDER U/S 143(3), AND THEREFORE , THERE WAS NO CHANGE IN FACTS AND NO FRESH MATERIAL HAD COME I NTO THE POSSESSION OF THE AO, AND THEREFORE, REASONS HAVE BEEN RECORDED CONTRARY TO THE PROVISIONS OF LAW, AS REQU ISITE CONDITIONS FOR REGARDING REASONS WERE NOT PRESENT . IT HAS BEEN FURTHER SUBMITTED THAT THIS ISSUE WAS EXAMINED IN DETAILED BY THE AO WHILE PASSING ORIGINAL ORDER U/S 143(3). THEREFORE, IT CANNOT BE SAID TO BE A CASE OF ESCAPE MENT INCOME, IN AS MUCH AS, A CONSCIOUS DECISION WAS TAK EN BY THE AO WHILE ACCEPTING THE CLAIM OF THE ASSESSEE IN THE ASSESSMENT ORDER PASSED U/S 143(3) ORIGINALLY. (III) IT HAS BEEN ALSO SUBMITTED THAT BY REOPENING THE CASE OF THIS YEAR, THE REVENUE HAS ADOPTED CONTRARY STAND. IT WAS FURTHER SUBMITTED THAT IN THE OTHER YEARS, THE TRIB UNAL HAS ACCEPTED THE CLAIM OF THE ASSESSEE ON MERITS. IT WA S THUS SUBMITTED BY HER THAT THIS KIND OF APPROACH OF THE AO OF TAKING DIFFERENT VIEW IN DIFFERENT YEARS SHALL LEAD TO A CHAOTIC SITUATION CAUSING UNDUE HARDSHIP TO THE ASSESSEE. IT WAS REQUESTED THAT IN VIEW OF THE ABOVE SUBMISSI ONS, REOPENING BEING ILLEGAL IN THE EYES OF LAW, NEEDS T O BE QUASHED. RELIANCE HAS BEEN PLACED ON FEW JUDGMENTS IN SUPPOR T OF HER CLAIM WHICH WE SHALL DEAL WITH IN OUR FINDINGS. ZODIAC CLOTHING CO. LTD. 5 3.4. ON THE OTHER HAND, LD. DR HAS SUPPORTED THE ORDERS OF LOWER AUTHORITIES AND SUBMITTED THAT REASONS RECO RDED ARE IN ACCORDANCE WITH LAW AND NEED TO BE UPHELD. BUT IN R ESPONSE TO THE QUERY FROM THE BENCH HE WAS NOT ABLE TO SHOW FROM THE ASSESSMENT ORDER WHETHER THE OBJECTIONS FILED BY TH E ASSESSEE WAS DISPOSED OF BY THE AO BY PASSING A SPEAKING ORD ER. 3.5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY EXAMI NED THE SUBMISSIONS, AND ALSO GONE THROUGH THE ORDERS O F LOWER AUTHORITIES, MATERIAL PLACED BEFORE US FOR OUR CONS IDERATION AND JUDGMENTS RELIED UPON BEFORE US. IN OUR CONSIDE RED VIEW REOPENING OF THE ASSESSMENT IS NOT SUSTAINABLE, AS THE REASONS RECORDED ARE INVALID IN THE EYES OF LAW O N THE FOLLOWING GROUNDS. (I) THIS IS SECOND ROUND OF PROCEEDINGS. IN THE FIRST ROUND, WHEN THE MATTER HAD REACHED BEFORE THE TRIBUNAL, IT WAS SENT BACK TO THE AO FOR FURNISHING REASONS BY THE AO T O THE ASSESSEE AND FOR MEETING THE OBJECTIONS OF THE ASSE SSEE UPON THE REASONS, BY PASSING SPEAKING ORDER. IT IS NOT ED THAT THE FACTS ON RECORD REVEAL THAT THE AO FAILED TO DISPOS E THE OBJECTIONS OF THE ASSESSEE, MUCH LESS BY PASSING A SPEAKING ORDER. THE LAW WAS CLARIFIED WAY BACK BY HONBLE S UPREME COURT IN THE CASE OF G.K.N. DRIVESHAFTS (SUPRA) THAT IT IS MANDATORY FOR THE AO TO FOLLOW THE PROCEDURE OF FUR NISHING THE REASONS AND MEETING OBJECTIONS BY PASSING SPEAKIN G ORDER. THE JUDGMENT OF HONBLE SUPREME COURT HAS BEEN FOLL OWED TIME AND AGAIN BY VARIOUS COURTS. IT IS NOTED THAT HONBLE BOMBAY HIGH COURT HAS FOLLOWED THE SAID JUDGMENT IN THE ZODIAC CLOTHING CO. LTD. 6 CASE OF TRENDS ELECTRONICS IN ITA NO. 1867/ 2013 DATED 16.09.2015, FOLLOWING IT EARLIER DECISIONS IN THE C ASE OF VIDESH SANCHAR NIGAM LTD 340 ITR 66, AND HELD THAT LAW LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF G.K.N. DRIVESHAFTS, SUPRA IS CLEAR AND MANDATORY AND IT IS TO BE STRICTLY FOLLOWED BY THE AO BEFORE FRAMING THE REAS SESSMENT ORDER. IT HAS BEEN HELD THAT POWERS GIVEN TO AO FOR REOPENING OF A COMPLETED ASSESSMENT UNDER THE INCOME TAX ACT, IS AN EXCEPTIONAL POWER AND WHENEVER REVENUE SEEKS TO EXE RCISE SUCH POWER, IT MUST STRICTLY COMPLY WITH ALL THE RE QUISITE CONDITIONS. NO CONTRARY JUDGMENT HAS BEEN BROUGHT T O OUR NOTICE BY THE REVENUE. THUS, WE FIND THAT THE FRAMI NG OF THE REASSESSMENT ORDER IS ILLEGAL ON THIS GROUND ITSELF . (II) LD. COUNSEL HAS SUBMITTED THAT THE REASONS WERE RECORDED IN ABSENCE OF ANY FRESH TANGIBLE MATERIAL, AND THESE WERE BASED UPON THE CHANGE OF THE OPINION OF THE AO . COPY OF REASONS RECORDED HAS BEEN ENCLOSED AS PB 30 FILED BY THE ASSESSEE, AND REPRODUCED HEREUNDER FOR THE SAKE OF READY REFERENCE:- M/S ZODIAC CLOTHING CO.LTD. ASSESSMENT YEAR 1997-98 THE ASSESSEE HAS FILED THE RETURN OF INCOME DECLARI NG TOTAL INCOME OF RS.95,43,994/- ON 28.11.1996. IN THE SAID RETURN OF INCOME, THE ASSESSEE HAS CLAIMED DEDUCTIO N U/S.80IA TO THE EXTENT OF RS.77,79,455/-. THE TOTAL INCOME OF THE ASSESSEE FOR A.Y.1996-97 WA S ASSESSED U/S 143(3) OF THE ACT, VIDE ORDER DATED 01.02.2000 AT RS.1,43,44,000/-, WHEREIN THE DEDUCTI ON U/S.80IA WAS ALLOWED AT RS.82,37,354/-. ZODIAC CLOTHING CO. LTD. 7 THE DEDUCTION U/S.80IA HAS BEEN CLAIMED IN RESPECT OF YELHANKA BRANCH OF THE ASSESSEE-COMPANY. A PERUSAL OF THE INCOME FIGURES OF THIS UNIT SHOWS OTHER INCOME OF RS.12144736/- WHICH CONSISTS OF DUTY DRAW BACK AMOU NT TO RS.11705577/-. THE ASSESSEE HAS INCLUDED THIS AM OUNT FOR CLAIMING DEDUCTION U/S.80IA. DUTY DRAW BACK IN THE CASE OF THE ASSESSEE IS NOT D ERIVED FROM THE INDUSTRIAL UNIT. IT ARISES OUT OF THE POLI CY OF THE GOVERNMENT OF INDIA TO ALLOW SUCH DUTY DRAWBACK TO THE ASSESSEE. THUS, IT IS ONLY ATTRIBUTABLE TO THE INDU STRIAL UNIT AND NOT DERIVED FROM THE INDUSTRIAL UNIT. THE SUPREME COURT IN THE CASE OF M/S. STERLING FOOD LTD. REPORTED IN 237 ITR 579 HELD THAT THE INCOME FROM S ALE OF IMPORT LICENSE AVAILABLE TO THE ASSESSEE IN LIEU OF THE EXPORTS MADE AROSE OUT OF THE POLICY OF THE GOVERNM ENT OF INDIA AND NOT FROM THE INDUSTRIAL UNIT. THE COURT F URTHER WENT AHEAD AND STATED THAT THE INCOME FOR SUCH SALE OF IMPORT LICENSES WOULD NOT BE INCOME DERIVED FROM TH E INDUSTRIAL UNIT AND BENEFITS U/S.80HH WOULD NOT BE AVAILABLE ON THE SAME. FOLLOWING THE SAME LOGIC, IT CANNOT BE SAID THAT TH E EXCISE DUTY DRAWBACK WHICH IS AVAILABLE TO THE ASSESSEE IS DERIVED FROM THE INDUSTRIAL UNIT. IT IS CLEARLY DER IVED FROM THE POLICY OF THE GOVERNMENT OF INDIA WHEREIN THE GOVERNMENT HAS DECIDED TO COMPENSATE THE EXPORTER F ROM THE EXCISE DUTY PAID BY HIM. THUS, THE EXCISE DUTY DRAWBACK AVAILABLE TO THE ASSESSEE THROUGH WOULD BE ATTRIBUTABLE TO THE INDUSTRIAL UNIT, IS CERTAINLY N OT DERIVED FROM THE INDUSTRIAL UNIT. IN VIEW OF THE ABOVE, THI S INCOME SHALL NOT FORM PART OF THE INCOME ELIGIBLE FOR DEDU CTION U/S 80IA BECAUSE DEDUCTION U/S 80IA IS AVAILABLE ONLY I N RESPECT OF PROFITS DERIVED FROM THE INDUSTRIAL UNIT . THUS, IT IS CLEAR THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IN SO FAR AS THE INCOME HAS BEEN DEDUCTE D BY EXCESS CLAIM OF DEDUCTION U/S 80IA. THE INCOME ESCA PING ASSESSMENT BECAUSE OF EXCESS CLAIM OF DEDUCTION IS MORE THAN RS.25,000/- AS REQUIRED BY THE PROVISIONS OF S ECTION 149(I)(B)(II) OF THE ACT. ZODIAC CLOTHING CO. LTD. 8 IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IN THIS CA SE, THEREFORE, ISSUED NOTICE U/S.148 OF THE ACT. SD/- RAVINDRA KUMAR DATED. 06.1.2000 JCIT, SPL. RANGE-53, MUMBAI 3.6. IT IS NOTED THAT THE AFORESAID REASONS HAVE BEEN RECORDED ON 06.11.2000. THE JUDGMENT OF HONBLE SUP REME COURT IN THE CASE OF STERLING FOODS (SUPRA) WAS AVA ILABLE AT THAT TIME AS IT WAS DATED 15.04.1999 AND AFTER CONS IDERING THIS JUDGMENT ONLY, CLAIM OF THE ASSESSEE WAS ACCEP TED IN THE ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. IT IS FURTHER NOTED FROM THE MATERIAL PLACED BEFORE US TH AT COMPLETE PARTICULARS WERE FURNISHED BY THE ASSESSEE IN ITS R ETURN AND IN THE ORIGINAL ASSESSMENT PROCEEDINGS WITH RESPECT TO THE CLAIM OF DUTY DRAWBACK. OUR ATTENTION HAS BEEN DRAWN TO V ARIOUS QUERIES RAISED BY THE AO AND ITS REPLY GIVEN BY THE ASSESSEE WITH RESPECT TO ELIGIBILITY OF THE ASSESSEE TO CLAI M OF DEDUCTION U/S 80IA ON THE AMOUNT OF DUTY DRAWBACK. THE CLAIM WAS MADE BY THE ASSESSEE ON THE BASIS OF AUDIT REPORT I N WHICH PARTICULARS WERE GIVEN SHOWING COMPUTATION OF THE D EDUCTION AND COMPLIANCE OF VARIOUS CONDITIONS AS PRESCRIBED IN THE ACT WITH RESPECT TO DEDUCTION U/S 80IA. THUS, WE FIND T HAT THE REASONS HAVE BEEN RECORDED ON THE BASIS OF CHANGE OF OPINION OF THE AO, WHICH IS NOT PERMITTED UNDER THE LAW. 3.7. IT IS FURTHER NOTED THAT REASONS HAVE BEEN RECORD ED IN ABSENCE OF ANY FRESH TANGIBLE MATERIAL COMING INTO THE POSSESSION OF THE AO BEFORE RECORDING THE REASONS . IN THIS ZODIAC CLOTHING CO. LTD. 9 REGARD WE PLACE OUR RELIANCE ON THE JUDGMENT OF HON BLE BOMBAY HIGH COURT IN THE CASE OF BOMBAY STOCK EXCHANGE LTD. (WRIT PETITION NO.2468 DT. 12.06.2014) (89 CCH 118) , HONBLE BOMBAY HIGH COURT OBSERVED AS UNDER: 5. IT IS PERTINENT TO NOTE THAT RESPONDENT NO.1 HA S NOT SET OUT IN THE REASONS WHICH FACT OR OTHER MATERIAL WAS NOT DISCLOSED BY THE PETITIONER THAT LED TO INCOME ESCA PING ASSESSMENT. IN FACT, ON GOING THROUGH THE REASONS, WE FIND THAT RESPONDENT NO.1 HAS COME TO THE CONCLUSION/BEL IEF THAT INCOME HAD ESCAPED ASSESSMENT ON THE BASIS OF THE MATERIAL ALREADY BEFORE HIM AND NO NEW TANGIBLE MATERIAL HAS BEEN RELIED UPON BY RESPONDENT NO.1 TO COME TO THE SAID CONCLUSION/BELIEF. THIS IS CLEAR F ROM THE USE OF THE WORDS ON PERUSAL OF THE RECORDS IT IS NOTICED........, FURTHER PERUSAL OF STATEMENT 2 E NCLOSED WITH THE COMPUTATION OF INCOME SHOWS....... AND I T IS FURTHER NOTICED...... IN THE IMPUGNED NOTICE. 3.6. RECENTLY, HONBLE DELHI HIGH COURT IN THE CASE OF PRINCIPLE CIT VS. TUPPERWARE INDIA PVT. LTD. IN ITS ORDER DATED 10.08.2015 (ITA NO.415/2015 GOT AN OCCASION T O ANALYSE LATEST POSITION OF LAW AVAILABLE ON THIS IS SUE AND IT WAS HELD THAT IT WAS MANDATORY FOR THE AO TO HAVE IN IT S POSSESSION FRESH TANGIBLE MATERIAL BEFORE REOPENING OF THE CASE. SIMILAR VIEW HAS BEEN FOLLOWED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF MADHUKAR KHOSLA VS. ACIT 367 ITR 165 (DELHI) . THERE ARE MANY OTHER JUDGMENTS COMING FROM MANY ZODIAC CLOTHING CO. LTD. 10 COURTS OF THE COUNTRY UPHOLDING THE SAME VIEW WHICH CANNOT BE MENTIONED HERE FOR THE SAKE OF BREVITY. 3.7. IT IS FURTHER TO BE MENTIONED HERE THAT THE VALIDI TY OF THE REASONS HAVE TO BE EXAMINED ON THE BASIS OF THE P ERUSAL OF THE REASONS ONLY AND ON THE BASIS OF MATERIAL AVA ILABLE WITH THE AO AND AS REFERRED TO IN THE REASONS AT THE T IME OF RECORDING OF REASONS ONLY. NO SUBSEQUENT DEVELOPM ENT OR MATERIAL GATHERED (THEREAFTER) CAN BE USED TO EXAMI NE AND UPHOLD THE VALIDITY OF REASONS RECORDED. 3.8. WE FIND, ON THE BASIS OF THE PERUSAL OF THE AFORES AID REASONS THAT REQUISITE CONDITIONS FOR RECORDING T HE REASONS WERE ABSENT, AS HAS BEEN DISCUSSED IN DETAIL ABOVE, AND FIND THAT THE IMPUGNED REASONS ARE CONTRARY TO THE CLE AR POSITION OF LAW, AND CANNOT BE UPHELD. THEREFORE, THE REOPEN ING IS INVALID ON THIS GROUND ALSO. 3.9. IT IS FURTHER NOTED BY US THAT IN PREVIOUS AND SUB SEQUENT YEARS, THE ASSESSEE HAS BEEN ALLOWED RELIEF BY THE TRIBUNAL BY GRANTING DEDUCTION U/S 80IA ON THE AMOUNT OF DUTY D RAWBACK AS PER DETAILS GIVEN BELOW:- A.YS. ITA NO. ORDER DATE 1994-95 2870/M/13 4.05.2007 1996-97 3117/M/13 4.05.2007 1998-99 981/M/01 16.09.2005 1999-00 3307/M/2004 22.11.2007 THUS, IT IS NOTED THAT THE ASSESSEE HAS BEEN PROVID ED RELIEF BY THE TRIBUNAL, CONSISTENTLY, IN ALL THE PREVIOUS AND SUBSEQUENT ZODIAC CLOTHING CO. LTD. 11 YEARS. UNDER THESE CIRCUMSTANCES, WE FAIL TO UNDERS TAND HOW IT WAS POSSIBLE FOR THE LD. AO TO MAKE A BELIEF THA T INCOME OF THE ASSESSEE HAS ESCAPED FROM ASSESSMENT, AND THAT TOO WITHOUT COMPLYING WITH THE MANDATORY CONDITIONS AS HAVE BEEN DISCUSSED IN DETAIL IN ABOVE PARAS. THUS, VIE WED FROM THIS ANGLE ALSO, THE REOPENING WAS NOT JUSTIFIED IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. 3.10. IN OUR CONSIDERED VIEW, THE IMPUGNED REOPENING HAS CAUSED UNDUE HARDSHIP TO THE ASSESSEE, AND THE SAME IS NOT SUSTAINABLE IN THE EYES OF LAW AND FACTS OF THE CAS E, AND THEREFORE SAME IS HELD AS INVALID AND IMPUGNED ASSE SSMENT ORDER IS HEREBY QUASHED. THUS, GROUND NO.1 PERTAINI NG TO REOPENING IS ALLOWED. 3.11. SINCE APPEAL OF THE ASSESSEE HAS BEEN ALLOWED ON T HE JURISDICTIONAL GROUND, WE REFRAIN OURSELVES FROM AD JUDICATING THE GROUNDS ON MERITS. 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER, 2015. SD/- (SAKTIJIT DEY ) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER MUMBAI; DATED : 30/11/2015 CTX? P.S/. .. ZODIAC CLOTHING CO. LTD. 12 # $%&'&($ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !'# / THE RESPONDENT. 3. $# $# % ( ) / THE CIT, MUMBAI. 4. $# $# % / CIT(A)- , MUMBAI 5. ()*# ! + , $# # + - , / DR, ITAT, MUMBAI 6. *. / / GUARD FILE. / BY ORDER, '#( ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI