Dr. Kripal Singh Bakshi, New Delhi V. ITO, New Delhi

ITA 1853/DEL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81898 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 29-10-2014
• Assessment Year: 1990-1991
• Appeal Filed On: 15-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Keywords: Unexplained investment; Depreciation; Charitable institution; Share purchase agreement; Period of limitation; Proportionate interest; Block assessment; Time period of passing order; Reassessment proceedings
• Section: 143(3); 148; 132

Judgement Text

ITA NO. 1 853 /DEL/201 1 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO. 1 853 /DEL/201 1 A.Y. : 1990 - 91 LATE DR. KIRPAL SINGH BAKSHI DECEASED THROUGH L/H DR. SATINDER PAL SINGH BAKSHI, A - 51, NDSE, PART - I, NEW DELHI (PAN/GIR NO. : 270 - K) VS. INCOME TAX OFFICER, WARD 37(2), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. YOGESH JAGIA, ADV. & SH. MANOJ GUPTA, FCA. DEPARTMENT BY : SH. BRR KUMAR, SR. DR O RDER PER H.S. SIDHU, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS - XXVIII), NEW DELHI DATED 14.1.2011 P ERTAINING TO ASSESSMENT YEAR 1990 - 91 ON THE FOLLOWING GROUNDS: - 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A), ERRED IN ISSUING DIRECTIONS UNDER SECTION 150(1) OF THE ACT FOR TAKING NECESSARY ACTION IN THE ASSESSMENT YEAR 1994 - 05. 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN NOT ACCEPTING DECLARTION OF JEWELERY IN QUESTION UNDER KAR VIVAD SAMADHAN SCHEME (KVSS) FILED BY DR. SPS BAKSHI AND ACCEPTANCE THEREOF. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN NOT ADJUDICATING ITA NO. 1 853 /DEL/201 1 2 CHALLENGE TO THE VALIDITY OF PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT. 4. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS. 1 LAKH IN FIXED DEPSOIT AND INTEREST ACCRUE D THEREON IN THE HANDS OF THE APPELLANT. 5. THAT THE APPELLANT CRAVES LEAVE OF THIS HON BLE COURT TO AMEND, ALTER OR ADD THE GROUNDS OF APPEAL BEFORE HEARING 2. THE FACTS OF THE CASE ARE NOT IN DISPUTE BY BOTH THE PARTIES, THEREFORE, NEED NOT REPEATE D HERE FOR THE SAKE OF CONVENIENCE. 3. LD. COUSNEL OF THE ASSESSEE HAS FILED THE A PAPER BOOK CONTAINING THE BRIEF SYNOPSIS IN SUPPORT OF HIS CLAIM, WHICH IS REPRODUCED AS UNDER: - APPELLANT, DR. KRIPAL SINGH BAKSHI, DIED ON 3 RD AUGUST, 1992, COPY OF DEATH CERTIFICATE IS PLACED ON PAGE 36 OF PAPER BOOK OF APPELLANT THEREFORE AS PER SECTION 159 OF INCOME TAX ACT, 1961, HEREIN AFTER REFERRED TO AS ACT , APPELLANT CAN BE ASSESSED UP TO ASST.YEAR 1993 - 94 FOR THE PERIOD 01/04/1992 TO 03/08/1992 THROUGH LEG AL REPRESENTATIVE AS DEFINED UNDER SECTION 2(29) OF ACT AND NOT FOR ANY PERIOD THEREAFTER. BEFORE DEMISE OF APPELLANT, ASSESSMENT FOR AY 1991 - 92 WAS THE LAST ASSESSMENT COMPLETED UNDER SECTION 143(3) BY ORDER DATED 30 TH JUNE, 1992 (PAGE 46 - 47 OF PAPER BOOK). AFTER DEMISE OF APPELLANT REVENUE DEPARTMENT ON 19 TH OCTOBER, 1993, CARRIED OUT OPERATION UNDER SECTION 132(1) OF ACT ON BAKSON GROUP OF COMPANIES, THE COMPANIES MANAGED BY DR. S.P.S BAKSHI, SON OF LATE DR KRIPAL SIN GH BAKSHI WHEREIN FOLLOWING MATERIAL WAS FOUND AND BECAME SUBJECT MATTER OF ASSESSMENT : - A. CASH RS. 1,02,850/ - . B. JEWELLERY RS. 9,75,132/ - C. FIXED DEPOSITS RS. 3,32,958/ - D. SHARE RS. 20,000/ - . BASED ON SEARCH OPERATION CARRIED OUT ON 19.10.1993, REVENUE INITIATED TWO ACTIONS OF ASSESSMENT. U/S 143(2) ON DR S.P.S BAKSHI (SON OF APPELLANT) FOR AY 1994 - 95, RELEVANT TO THE PERIOD OF SEARCH AND ITA NO. 1 853 /DEL/201 1 3 OTHER U/S 148 OF ACT ON LATE KRIPAL SINGH BAKSHI FOR ASSESSMENT YEAR 1990 - 91. CONSEQUENTLY ASSES SMENT OF DR SPS BAKSHI WAS COMPLETED UNDER SECTION 143(3) [REFER PAGE 3 TO 18 OF PAPER BOOK] AND AFTER CONSIDERING MATERIAL FOUND FOLLOWING ADDITIONS WERE MADE: - A. OUT OF CASH FOUND RS. 42,850/ - B. OUT OF FIXED DEPOSITS RS. 1,31,538/ - C. OUT OF JEWELLERY R S. 4,51,750/ - D. PERQUISITE RS. 42,000/ - E. OUT OF SHARE CERTIFICATES RS. 20,000/ - ON APPEAL FILED BY DR S.P.S BAKSHI, CIT (A) BY DETAILED SPEAKING ORDER DATED 28.4.1998 DELETED ADDITION MADE ON ACCOUNT OF JEWELLERY, FIXED DEPOSITS, SHARE CERTIFICATES AN D CASH ETC. (PAGE 19 - 25 OF PAPER BOOK). REVENUE CHALLENGED THE ORDER OF CIT(A) BEFORE ITAT IN ITA 3707/DEL/1998 RAISING FIVE GROUNDS OF APPEAL CHALLENGING RELIEF GRANTED BY CIT(A) OF RS. 32,850/ - ON ACCOUNT OF UNEXPLAINED CASH, RS. 50,000/ - ON ACCOUNT OF U NEXPLAINED INVESTMENT OF FDR, RS. 3,71,505/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT OF JEWELLERY AND RS.36,000/ - PERQUISITE. AS PER THIS APPEAL THE REVENUE DISPUTED ORDER OF CIT(A) TO THE EXTENT OF RELIEF GRANTED OF RS. 4,90,355/ - AND ACCEPTED THE OTHER RELI EF GRANTED.( PAGE ) DURING PENDING APPEAL BEFORE ITAT DR. S.P.S BAKSHI FILED DECLARATION UNDER KAR VIVAD SAMADHAN SCHEME, 1998 ( KVSS) OF THE SUM DISPUTED BY REVENUE OF RS.4,90,355/ - AND SAME WAS ACCEPTED BY REVENUE AND REQUISITE CERTIFICATE IN FORM 3, W HICH IS PLACED ON PAGE 31 OF PAPER BOOK, WAS ISSUED. BASED ON CERTIFICATE ISSUED, ITAT DISMISSED THE APPEAL FILED BY REVENUE BY ORDER DATED 6 TH JANUARY, 2003 (REFER PAGE 32 - 33). WITH DISMISSAL OF APPEAL, ISSUES ARISING OUT OF SEARCH OPERATION CARRIED OUT O N 19.10.1993 ATTAINED FINALITY. BASED ON NOTICE DATED 30.3.1995 ISSUED UNDER SECTION 148 OF ACT FOR AY 1990 - 91 TO LEGAL REPRESENTATIVE OF LATE KRIPAL SINGH BAKSHI REASSESSMENT WAS COMPLETED FOR AY 1990 - 1991 (PAGE 37 - 40 PAPER BOOK) AND AFTER ANALYZING MATE RIAL FOUND IN OPERATION CARRIED OUT UNDER SECTION 132(1) ON 19 TH OCTOBER 1993 FOLLOWING ADDITIONS WERE MADE TO DECLARED INCOME: - A. OUT OF JEWELLERY RS. 6,09,750/ - B. OUT OF FDR RS. 1,00,000/ - C. PROPORTIONATE INTEREST FROM FDR RS. 6,370/ - D. AD HOC ADDITIO N FOR NON PRODUCTION OF CASH BOOK AND PATIENT REGISTER RS. 20,000/ - ITA NO. 1 853 /DEL/201 1 4 REASSESSMENT ORDER PASSED FOR AY 1990 - 91 WAS CHALLENGED BY APPELLANT BEFORE CIT(A) AND BY IMPUGNED ORDER CIT(A) DELETED ADDITION ON ACCOUNT OF JEWELLERY WITH DIRECTION TO TAKE ACTION FO R SAME IN ASSESSMENT YEAR 1994 - 95 IN ACCORDANCE WITH LAW.( PARA 4.18 OF ORDER). FURTHER, CIT(A) CONFIRMED ADDITION OF RS. 1,00,000/ - ON ACCOUNT OF FDR AND INTEREST ACCRUED THEREON. ( PARA 5.3 AND 6 OF ORDER) AND REFUSED TO ACCEPT KVSS BECAUSE KVSS DOES NOT BELONG TO AY 1990 - 91 AND TO LATE DR KRIPAL SINGH BAKSHI. ORDER OF CIT(A) IS CHALLENGED BY REVENUE AS WELL AS BY APPELLANT BY FILING CROSS APPEAL. GRIEVANCE OF REVENUE IS LIMITED TO THE EXTENT THAT DELETION OF JEWELLERY AND DIRECTIONS FOR TAKING ACTION IN AY 1994 - 95 ARE WRONG. APPELLANT CHALLENGED DIRECTIONS FOR TAKING ACTION IN AY 1994 - 95 AND UPHOLDING OF ADDITION OF RS. 1,00.,000/ - OF FDR AND INTEREST ACCRUED THEREON. ISSUE FOR CONSIDERATION 1. WHETHER DIRECTIONS OF CIT(A) DIRECTING TO TAKE ACTION IN ACCORDANCE WITH LAW FOR AY 1994 - 95 FOR JEWELLERY IS CONTRARY TO SECTION 150 OF ACT ? 2. WHETHER SUBJECT MATTER OF ASSESSMENT OF DR KRIPAL SINGH BAKSHI IN AY 1990 - 91 AND OF DR SPS BAKSHI IN AY 1994 - 95 IS SAME AND REVENUE TAXED SAME INCOME TWICE? 3. WHETHER ADDITI ON OF RS. 1,00,000/ - OF FIXED DEPOSIT AND INTEREST DUE THEREON OF APPELLANT IS CORRECT? ARGUMENTS OF APPELLANT AS PER SECTION 159 OF THE ACT, LATE DR. KRIPAL SINGH BAKSHI CAN ONLY BE ASSESSED UP TO DATE OF HIS DEMISE I.E 3.8.1992 (AY 1993 - 94) THROUGH LEGAL REPRESENTATIVE THEREFORE DIRECTIONS OF CIT(A) TO MAKE ADDITION OF JEWELLERY IN AY 1994 - 95 ARE UNSUSTAINABLE IN LAW SO MUCH SO THAT REVENUE ALSO AGITATED THIS ISSUE BY FILING CROSS APPEAL. REVENUE FAILED TO ADDUCE EVEN A IOTA OF EVIDENCE SUGGESTING TH AT MATERIAL FOUND DURING OPERATION UNDER SECTION 132 OF ACT ON 19.10.1993 WAS ACQUIRED OUT OF UNDISCLOSED INCOME OF LATE KRIPAL SINGH BAKSHI IN THE ASST. YEAR 1990 - 91 AND ON THE CONTRARY MATERIAL AVAILABLE ON RECORD DEMONSTRATE BEYOND DOUBT THAT MATERIAL F OUND DURING SEARCH OPERATION BELONG TO OTHER FAMILY MEMBERS OF APPELLANT HEREIN. AS PER PAGE 3,26 & 27 OF THE APPRAISAL REPORT DATED 21 ST MARCH, 1994 FILED BY REVENUE BY LETTER DATED 25 TH JUNE, 2013 READ WITH ASSESSMENT ORDER OF DR. S.P.S BAKSHI FOR AY 199 4 - 95 (PAGE 3 TO 12 PAPER BOOK) AND ORDER PASSED BY CIT(A) ( PAGE ) IT IS CLEAR THAT NONE OF THE MATERIAL FOUND DURING SEARCH PERTAIN TO LATE DR KRIPAL SINGH BAKSHI SAN ASSST. ITA NO. 1 853 /DEL/201 1 5 YEAR 1990 - 91. AS PER ASSESSMENT ORDER PASSED FOR AY 1994 - 95 OF DR SPS BAKSHI M ATERIAL FOUND DURING SEARCH BELONG TO FOLLOWING PERSONS : - PARTICULARS TOTAL AMOUNT BELONG TO BACKSON HOMEO PVT LTD MRS MEHTAB KAUR DR SPS BAKSHI OTHER FAMILY MEMBERS( OTHER THAN APPELLANT) CASH 1,02,850/ - 50,000/ - 10000/ - 42,850/ - FDR 3,32,958/ - NIL 1,91,420/ - 1,31,538/ - 10,000/ - JEWELLERY 9,75,132/ - NIL 1,50,000/ - 4,51,750/ - 3,73,382/ WHEREAS CIT(A) BY DETAILED SPEAKING ORDER DATED 28.4.1998 FOR AY 1994 - 95 IN DR SPS BAKSHI HELD THAT MATERIAL FOUND DURING SEARCH OPERATION ON 19.10.1993 PERTAIN TO FOLLOWING PERSONS. PARTICULAR TOTAL AMOUNT BELONG TO BACKSON HOMEO PVT LTD MRS MEHTAB KAUR DR SPS BAKSHI OTHER FAMILY MEMBERS (OTHER THAN APPELLANT) CASH 1,02,850/ - 50,000/ - 20,000/ - 32,850/ - FDR 3,32,958/ - NIL 3,32,958/ - NIL 10,000/ - JEWELLERY 9,75,132/ - NIL 5,21,866/ - NIL 4,53,266/ - WHEREAS AS PER ASSESSMENT ORDER OF LATE DR KRIPAL SINGH BAKSHI IN ASST YEAR 1990 - 91, MATERIAL FOUND DURING SEARCH OPERATION CARRIED OUT ON 19.10.1993 HAS BEEN HELD BELONGING TO FOLLOWING PERSONS: - PARTICULAR TOTAL AMOUNT LATE DR KRIPAL SINGH BAKSHI MRS MEHTAB KAUR DR SPS BAKSHI OTHER FAMILY MEMBERS ( OTHER THAN APPELLANT) CASH 1,02,850/ - * FDR 3,32,958/ - 1,00,000/ - (ON PROTECTIVE BASIS) NIL 2,32,958/ - JEWELLERY 9,75,132/ - 6,09,750/ - # NIL 3,65,382/ - ITA NO. 1 853 /DEL/201 1 6 * NO ANALYSIS MADE SINCE IT WAS FOUND DURING SEARCH OPERATION CARRIED OUT ON 19.10.1993 PERTAINING TO ASST YEAR 1994 - 95 AND DOES NOT PERTAIN TO AY 1990 - 91. # AS PER AO DUE TO PAUCITY OF TIME, HE COULD NOT VERIFY EXPLANATION GIV EN AND SINCE MRS MEHTAB KAUR WAS NOT HAVING SOURCE OF INCOME THEREFORE JEWELLERY TAXED IN THE HANDS OF LATE DR KRIPAL SINGH BAKSHI ( PG 38 - 39 PAPER BOOK) WHEREAS MRS MEHTAB KAUR WAS ASSESSED TO TAX AND FILED HER RETURNS OF INCOME. ( PAGE 52 - 57 OF PAPER BOO K). CIT (A) IN THE IMPUGNED ORDER DELETED ADDITION OF RS. 6,09,750/ - DURING AY 1990 - 91 AND ISSUED DIRECTIONS U/S 150 TO TAKE ACTION IN ACCORDANCE WITH LAW IN AY 1994 - 95. DIRECTIONS ISSUED U/S 150 ARE NOT MAINTAINABLE EVEN OTHERWISE BECAUSE IT DOES NOT SATISFY PRE REQUISITE CONDITIONS OF SECTION 150 AS HELD BY HON BLE SUPREME COURT IN RAJINDER NATH (120 ITR14) WHICH IS REFERRED IN INTERNAL PARA 4.2 AND 4.3 OF PARA 6 OF THE JUDGMENT OF HON'BLE ITAT MUMBAI IN ITA 8605/MUM/11. COPY ENCLOSED. AS PER JUDGMENT OF HON BLE SUPREME COURT, DIRECTION UNDER SECTION 150 NEED TO BE SPECIFIC AFTER GIVING FINDING BUT IN THE CASE OF APPELLANT NO SUCH FINDING HAS BEEN GIVEN AND ON THE CONTRARY EVEN CIT(A) DELETED ADDITION IN ASST YEAR 1990 - 91 BECAUSE REVENUE MISERABLY FAIL ED TO BRING ON RECORD ANY MATERIAL JUSTIFYING MAKING ADDITION IN AY 1990 - 91 ( REFER PARA 4.17 AND 4.18 OF ORDER) ON THE SECOND ISSUE. IT IS SUBMITTED THAT ABOVE TABLES DEMONSTRATE BEYOND DOUBT THAT MATERIAL FOUND DURING SEARCH OPERATION ON 19.10.1993 WAS T HE ONLY SUBJECT MATTER OF ASSESSMENT IN ASST YEAR 1994 - 95 IN THE CASE OF DR SPS BAKSHI AND IN ASST YEAR 1990 - 91 IN LATE KRIPAL SINGH BAKSHI. IT IS FURTHER CLEAR FROM THE UNDERNOTED TABLE. NATURE OF MATERIAL FOUND AS PER REMAND REPORT AS PER ASSESSMENT ORD ER DR SPS BAKSHI ASSESSMENT YEAR 1994 - 95 AS PER ASSESSMENT ORDER LATE KRIPAL SINGH BAKSHI ASSESSMENT YEAR 1990 - 91 CASH 1,02,850/ - ( PG 3 PAPER BOOK REVENUE ) 1,02,850/ - ( PG 4 PAPER BOOK APPELLANT) 1,02,850/ - ( PG 38 PAPER BOOK APPELLANT) JEWELLERY RS.5,42,205/ - RS.4,32,927/ - TOTAL 9,75,132/ - ( PG 3 PAPER A - 51, NDSE PART - 1, NEW DELHI RS. 5,42,205/ - ( 1,76,823/ - + 3,65,382/ - ) PG 7 PB - APPELLANT A - 51, NDSE PART - 1, NEW DELHI RS. 5,42,205/ - ( 1,76,823/ - + 3,65,382/ - ) PG 38 ITA NO. 1 853 /DEL/201 1 7 BOOK REVENUE) PREMISES WISE DETAIL A - 51 NDSE PART - 1 RS. 5,42,205/ - (1,76,823/ - + 3,65,382/ - ) LOCKER NO 131 SBI RS. 4,32,927/ - ( PG 27 PB OF REVENUE) SBI LOCKER NO 131 RS.4,32,927/ - PG 10 PB - APPELLANT PB - APPELLANT SBI LOCKER NO 131 RS.4,32,927/ - PG 38 PB - APPELLANT FIXED DEPOSITS RS.3,32,958/ - (PG 3 & 26 PB - REVENUE) RS.3,32,958/ - ( PG 5 PB - APPELLANT) RS. 3,32,958/ - (PG 39 PB APPELLANT) TABLES APPENDED HEREINABOVE READ WITH ASSESSMENT ORDERS LEAVE NO ROOM OF DOUBT THAT ASSESSMENT ORDER OF DR. KRIPAL SINGH BAKSHI FOR AY 1990 - 1991 (PAGE 37 - 40), AND ASSESSMENT ORDER OF DR SPS BAKSHI FOR AY 1994 - 95 WERE FRAMED ON MATERIAL FOUND DURING SEARCH OPERATION CARRIED OUT ON 19.10.1993 AND IN VIEW OF TAXING THE INCOME IN THE HAND OF DR SPS BAKSHI WHICH ATTAINED FINALITY BY FILING KVSS, NO ADDITION IS SUSTAINABLE IN THE CASE OF LATE DR KRIPAL SINGH BAKSHI IN EITHER ASST YEAR 1990 - 91 OR 1994 - 95 OR ANY OT HER ASSESSMENT YEAR. CIT(A) IN THE IMPUGNED ORDER HAS NOT ACCEPTED DECLARATION OF K.V.S.S ON THE SOLE GROUND THAT IT DOES NOT PERTAIN TO LATE DR. KRIPAL SINGH BAKSHI AND IGNORED THE FACT THAT INCOME TAXED IN THE HANDS OF LATE KRIPAL SINGH BAKSHI IS NOTHIN G BUT THE INCOME ALREADY TAXED IN THE HANDS OF DR SPS BAKSHI FOR WHICH KVSS WAS FILED AND HENCE RELIANCE PLACED ON KVSS FILED BY DR SPS BAKSHI IS NOT MISPLACED. THE FIXED DEPOSIT OF RS.1,00,000/ - OF WHICH ADDITION HAS BEEN UPHELD BY CIT(A) IN PARA 5.2 AND 5.3 WAS ADMITTEDLY IN THE NAME OF MRS. MEHTAB KAUR W/O LATE DR. KRIPAL SINGH BAKSHI. THIS FDR WAS CONSIDERED BY LD AO IN AY 1994 - 95 IN THE ASSESSMENT OF DR. SPS BAKSHI (ON PAGE 5 OF PAPER BOOK) CONFIRMING THAT IT BELONGS TO MRS. MEHTAB KAUR. SINCE MRS MEH TAB KAUR WAS ASSESSED TO TAX THEREFORE NO ADDITION COULD HAVE BEEN MADE IN THE HANDS OF LATE KRIPAL SINGH BAKSHI. CIT(A) IN PARA 6 OF ORDER OF DR. S.P.S BAKSHI FOR AY 1994 - 95 BY DETAILED SPEAKING ORDER CONFIRMED THAT THIS FDR BELONG TO MRS. MAHTAB KAUR AND SAME HAS BEEN DECLARED BY HER IN HER INCOME TAX RETURN THEREFORE SHE CAN NOT BE TREATED AS BENAMIDAR OF S.P.S BAKSHI. COPY OF CERTIFICATE ISSUED BY BANKER CONFIRMING THAT FIXED DEPOSIT WAS ISSUED IN FAVOUR OF MRS. MEHTAB KAUR OUT OF HER SAVING ACCOUNT IS ANNEXED HEREWITH. ITA NO. 1 853 /DEL/201 1 8 IN CONNECTION WITH APPEAL FILED BY REVENUE, IT IS SUBMITTED THAT SINCE APPEAL OF REVENUE IS WITHIN MONETARY LIMIT PRESCRIBED FOR NOT FILING AN APPEAL THEREFORE SAME DESERVE TO BE DISMISSED ON THIS GROUND ALSO. ARGUMENT OF REVENUE REVENUE RAISED CONTENTION THAT K.V.S.S OF DR. S.P.S BAKSHI FOR AY 1994 - 95 AS PER SCHEME OF K.V.S.S CAN NOT BE ACCEPTED IN THE CASE OF APPELLANT AND CIT APPEAL ERRED IN DIRECTING DELETION OF ADDITION MADE ON ACCOUNT OF UNDISCLOSED JEWELLERY IN AY 1990 - 1991 WITH DI RECTION TO TAKE ACTION IN AY 1994 - 95 IN ACCORDANCE WITH LAW. LD DR REFERRED AND RELIED UPON PARA 4.10 TO 4.18 OF IMPUGNED ORDER PASSED.LD DR ARGUED THAT AS PER PARA 4.17, AO HAS NOT CONTROVERTED ARGUMENT OF APPELLANT THAT ANY ADDITION BASED ON SEARCH OPERA TION DATED 19 TH OCTOBER 1993 COULD HAVE BEEN MADE IN 1994 - 95 ONLY, THEREFORE AO HAS NOT GIVEN ANY CLARIFICATION FOR MAKING ADDITION IN AY 1990 - 1991. APPELLANT IN REJOINDER SUBMITTED THAT IN VIEW OF THEIR ARGUMENTS THAT MATERIAL FOUND DURING SEARCH OPERATIO N CARRIED ON 19.10.1993 BOTH THE ASSESSMENT OF AY 1990 - 91 ( LATE DR KRIPAL SINGH BAKSHI) AND AY 1994 - 95 ( DR SPS BAKSHI) HAVE BEEN FRAMED WHICH ATTAINED FINALITY THEREFORE NOTHING REMAIN TO BE TAXED IN THE HANDS OF LATE DR KRIPAL SINGH BAKSHI. P R A Y E R APPELLANT PRAY THAT IN VIEW OF SPECIFIC PROVISIONS OF SECTION 159 COUPLED WITH THE FACT THAT MATERIAL FOUND DURING SEARCH OPERATION UNDER SECTION 132(1) ON 19 TH OCTOBER 1993, ASSESSMENT HAS ALREADY BEEN COMPLETED AND ATTAINED FINALITY AND NO MATERIAL OF AN Y NATURE IS PLACED ON RECORD BY REVENUE INCLUDING APPRAISAL REPORT SUGGESTING THAT UNDISCLOSED INCOME, IF ANY, RELATED TO THE MATERIAL FOUND BELONGED TO DR. KRIPAL SINGH BAKSHI FOR ANY PERIOD SAN AY 1990 - 1991, THEREFORE DIRECTIONS ISSUED BY CIT(A) UNDER SE CTION 150 ARE LIABLE TO BE ANNULLED AND ADDITION MADE IN AY 1990 - 1991 BE DECLARED NULL AND V OID . 4. LD. DR RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AND SYNOPSIS FILED BY THE ASSESSEE. SO FAR AS G ROUND NO. 1 IS CONCERNED , RELATING TO ISSUING DIRECTIONS U/S. 15 0 (1) BY THE CIT(A) FOR TAKING NECESSARY ACTION IN THE ASSESSMENT YEAR 1994 - 95. WE NOTE THAT LD. CIT(A) IN ITS IMPUGNED ORDER DELETED THE ADDITION OF RS. 6,09,750/ - DURING AY ITA NO. 1 853 /DEL/201 1 9 1990 - 91 AND ISSUED DIRECTIONS U/S. 150 TO TAKE ACTION IN ACCORDANCE WITH LAW IN AY 1994 - 95. DIRECTIONS ISSUED U/S. 150 ARE NOT MAINTAINABLE EVEN OTHERWISE BECAUSE IT DOES NOT SATISFY PRE REQUISITE CONDITIONS OF SECTION 150 AS HELD BY THE HON BLE SUPREME COURT IN RAJINDER NATH (120 ITR 14) WHICH IS REFERRED IN ITAT, MUMBAI ORDER DATED 06.11.2013 PASSED IN ITA NO. 8605/MUM/11 VIDE INTERNAL PARA 4.2 AND 4.3 OF MAIN PARA NO. 6. THE RELEV ANT PORTION IS REPRODUCED HEREUNDER: - 4.2 IT WOULD ALSO BE USEFUL TO REPRODUCE THE PROVISIONS OF SEC. 150 IN ORDER TO EXAMINE THE ISSUE SINCE IT IS THIS SECTION WHICH HAS BEEN INVOKED BY THE AO FOR ISSUING THE NOTICE U/S 148 BEYOND THE LIMITATION PERIOD. '150 (1) NOTWITHSTANDING ANYTHING CON TAINED IN SEC. 149, THE NOTICE UNDER SECTION 148 MAY BE ISSUED AT ANY TIME FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT OR RECOMPUTATION IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED BY ANY AUTHORIT Y IN ANY PROCEEDING UNDER THIS ACT BY WAY OF APPEAL, REFERENCE OR REVISION (OR BY A COURT IN ANY PROCEEDING UNDER ANY OTHER LAW). (2) THE PROVISIONS OF SUB - SECTION (1) SHALL NOT APPLY IN ANY CASE WHERE ANY SUCH ASSESSMENT, REASSESSMENT OR RECOMPUTATION A S IS REFERRED TO IN THAT SUB - SECTION RELATES TO AN ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION COULD NOT ITA NO. 1 853 /DEL/201 1 10 HAVE BEEN MADE AT THE TIME THE ORDER WHICH WAS THE SUBJECT - MATTER AT THE APPEAL, REFERENCE OR REVISION, AS THE CAS E MAY BE, WAS MADE BE REASON OF ANY OTHER PROVISION LIMITING THE TIME WITHIN WHICH ANY ACTION FOR ASSESSMENT, REASSESSMENT OR RECOMPUTATION MAY BE TAKEN. FROM THE ABOVE, IT WOULD BE APPARENT THAT, FOR THE PURPOSE OF SEC. L50, SO AS TO ENABLE THE AO TO IS SUE THE NOTICE U/S 148 AT ANY TIME WITHOUT BEING CURTAILED BY THE TIME LIMIT PRESCRIBED U/S 149, THERE MUST BE SATISFACTION OF EITHER OF THE TWO INGREDIENTS UNDER SUB - SECTION (1) OF SEC. 150. THE FIRST INGREDIENT IS THAT THE REOPENING MUST HAVE BEEN DONE F OR THE PURPOSE OF GIVING EFFECT TO ANY FINDING CONTAINED IN ANY ORDER PASSED BY ANY AUTHORITY IN ANY PROCEEDINGS UNDER THE ACT BY WAY OF APPEAL, REFERENCE OR REVISION OR BY A COURT IN ANY PROCEEDING UNDER ANY OTHER LAW. THE SECOND INGREDIENT IS THAT THE REOPENING MUST HAVE BEEN DONE FOR THE PURPOSE OF GIVING EFFECT TO ANY 'DIRECTION' CONTAINED IN THE ORDER PASSED BY ANY AUTHORITY. 4.3 A 'FINDING' IN THE CONTEXT OF SUB - SECTION (1) OF THE SEC. 150 IS THE CONCLUSION WHICH THE HIGHER AUTHORITY HAS NECESSA RILY TO REACH SO AS TO DISPOSE OF THE APPEAL BEFORE HIM. THE EXPRESSION 'FINDING' OR 'DIRECTION' CANNOT BE TREATED AS IN VACCUM. THE WORDS ''IN CONSEQUENCE OF' OR 'TO GIVE EFFECT TO ANY FINDING OR DIRECTION HAVE TO BE COLLATED WITH AND ITA NO. 1 853 /DEL/201 1 11 CANNOT ENLARGE THE SCOPE OF THE FINDING OR DIRECTION MENTIONED IN THE SAID SUB - SECTION [C.M. RAJGHARIA VS ITO 98 ITR 486, 497 (PAT)]. IN THE CASE OF CIT VS S. GOVINDRAM CHETTIAR [79 ITR 60 (MAD)] IT HAS BEEN HELD THAT EVERY STEP OR REASON TO OBSERVATION INCIDENTAL TO A FINDI NG CANNOT BE MISTAKEN FOR THE FINDING ITSELF. IN THE CASE OF MOHINI THAPAR CHARITABLE TRUST 160 ITR 408, 410, IT HAS BEEN HELD BY THE HON BLE CALCUTTA HIGH COURT THAT THE INTENT, PURPOSE AND IMPORT OF THE FINDING OR DIRECTION IN THE APPELLATE ORDER WILL DE TERMINE THE CHARACTER, SCOPE AND LIMITATIONS OF THE ASSESSMENT PROCEEDINGS TAKEN IN PURSUANCE OF SUCH FINDING OR DIRECTION. THE HON'BLE SUPREME COURT IN THE CASE OF RAJINDER NATH (120 ITR 14) HAS HELD THAT THE OBSERVATION OF THE APPELLATE ASSISTANT COMMISS IONER TO THE EFFECT THAT THE INCOME - TAX OFFICER ''IS FREE TO TAKE ACTION' TO ASSESS THE EXCESS IN THE HANDS OF THE CO - OWNERS COULD NOT BE DESCRIBED AS A 'DIRECTION.' A DIRECTION BY A STATUTORY AUTHORITY IS IN THE NATURE OF AN ORDER REQUIRING POSITIVE COMP LIANCE. WHEN IT IS LEFT TO THE OPTION AND DISCRETION OF THE INCOME - TAX OFFICER WHETHER OR NOT TO TAKE ACTION, IT CANNOT BE DESCRIBED AS A 'DIRECTION.' THE HON'BLE ORISSA HIGH COURT IN THE CASE OF PRAFULLA KUMAR MALLICK (103 ITR 418) HAS HELD, WHILE DECIDIN G IN THE CONTEXT OF EXPLANATION 2 TO SEC. 153 THAT IT IS BUT NATURAL THAT IN ORDER TO INVOKE THE FICTION OF EXPLANATION 2, THE HIGHER AUTHORITY MUST GIVE A PROPER AND DEFINITE FINDING THAT THE IMPUGNED AMOUNT IS OF THE INCOME CHARACTER, BUT IT DOES NOT BEL ONG TO THE YEAR UNDER ITA NO. 1 853 /DEL/201 1 12 APPEAL AND IS, THEREFORE, DELETED. IN RAJINDER NATH (SUPRA), THE HON'BLE SUPREME COURT HAS HELD AS FOLLOWS : - 'THE EXPRESSIONS ''FINDING'' AND 'DIRECTION' ARE LIMITED IN MEANING. A FINDING GIVEN IN AN APPEAL, REVISION OR REFERENCE AR ISING OUT OF AN ASSESSMENT MUST BE A FINDING NECESSARY FOR THE DISPOSAL OF THE PARTICULAR CASE, THAT IS TO SAY, IN RESPECT OF THE PARTICULAR ASSESSEE AND IN RELATION TO THE PARTICULAR ASSESSMENT YEAR. TO BE A NECESSARY FINDING, IT MUST BE DIRECTLY INVOLVED IN THE DISPOSAL OF THE CASE. IT IS POSSIBLE IN CERTAIN CASES THAT IN ORDER TO RENDER A FINDING IN RESPECT OF A, A FINDING IN RESPECT OF B MAY BE CALLED FOR. FOR INSTANCE, WHERE THE FACTS SHOW THAT THE INCOME CAN BELONG EITHER TO A OR B AND TO NO ONE ELSE, A FINDING THAT IT BELONGS TO B OR DOES NOT BELONG TO B WOULD BE DETERMINATIVE OF THE ISSUE WHETHER IT CAN BE TAXED AS A S INCOME. A FINDING RESPECTING B IS INTIMATELY INVOLVED AS A STEP IN THE PROCESS OF REACHING THE ULTIMATE FINDING RESPECTING A IF, HOWE VER, THE FINDING AS TO A S LIABILITY CAN BE DIRECTLY ARRIVED AT WITHOUT NECESSITATING A FINDING IN RESPECT OF B, THEN A FINDING MADE IN RESPECT OF B IS AN INCIDENTAL FINDING ONLY. IT IS NOT A FINDING NECESSARY FOR THE DISPOSAL OF THE CASE PERTAINING TO A. THE SAME PRINCIPLES SEEM TO APPLY WHEN THE QUESTION IS WHETHER THE ITA NO. 1 853 /DEL/201 1 13 INCOME UNDER ENQUIRY IS TAXABLE IN THE ASSESSMENT YEAR UNDER CONSIDERATION OR ANY OTHER ASSESSMENT YEAR. AS REGARDS THE EXPRESSION DIRECTION IN SECTION 153(3)(II) OF THE ACT, IT IS NOW WE LL SETTLED THAT IT MUST BE AN EXPRESS DIRECTION NECESSARY FOR THE DISPOSAL OF THE CASE BEFORE THE AUTHORITY OR COURT. IT MUST ALSO BE A DIRECTION WHICH THE AUTHORITY OR COURT IS EMPOWERED TO GIVE WHILE DECIDING THE CASE BEFORE IT. THE EXPRESSION FINDING AND DIRECTION IN SEC. 153(3)(II) OF THE ACT MUST BE ACCORDINGLY CONFINED. 6. WE FIND THAT AS PER THE AFORESAID JUDGMENT OF THE HON BLE SUPREME COURT, DIRECTION UNDER SECTION 150 NEED TO BE SPECIFIC AFTER GIVING FINDING BUT IN THE CASE OF THE ASSESSEE NO SUCH FINDING HAS BEEN GIVEN AND ON THE CONTRARY EVEN CIT(A) DELETED THE ADDITION IN ASSTT. YEAR 1990 - 91 BECAUSE REVENUE MISERABLY FAILED TO BRING ON RECORD ANY MATERIAL JUSTIFYING MAKING ADDITION IN AY 1990 - 91 WHICH IS REFERRED IN ITAT, MUMBAI ORDER DATED 06.11.2013 PASSED IN ITA NO. 8605/MUM/11 VIDE INTERNAL PARA 4. 7 AND 4. 8 OF MAIN PARA NO. 6. THE RELEVANT PORTION IS REPRODUCED HEREUNDER: - 4.7 IN VIEW OF THE AFORESAID REASONS, I AM OF THE OPINION THAT THE NOTICE U/S 148 COULD NOT HAVE BEEN ISSUE D FOR MAKING AN ASSESSMENT OR REASSESSMENT OR RECOMPUTATION IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE ORDER PASSED BY THE LD. CIT(A) FOR THE A.Y. 2005 - 06 SINCE THERE WAS NO SUCH 'FINDING' OR 'DIRECTION' AS CONTEMP LATED IN SEC.150(1). AS ITA NO. 1 853 /DEL/201 1 14 PER THE PROVISIONS OF SEC. 149(1), NO ASSESSMENT CAN BE REOPENED BEYOND A PERIOD OF 6 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. IN THE PRESENT CASE THE NOTICE U/S 148 WAS ISSUED BEYOND THE PERIOD OF 6 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. HENCE, THE SAID NOTICE WAS BARRED BY LIMITATION AND WAS WITHOUT JURISDICTION. THEREFORE, THE REASSESSMENT COMPLETED BY THE ASSESSING OFFICER WAS WITHOUT JURISDICTION. FOR REACHING THIS CONCLUSION, RELIANCE IS ALSO PLACED ON T HE DECISIONS OF THE HON BLE BOMBAY HIGH COURT IN THE CASES OF LOTUS INVESTMENTS LTD. (288 ITR 459) AND RAKESH N. DUTT (311 ITR 247). 4.8 IN THE CASE OF LOTUS INVESTMENTS LTD. (SUPRA) THE FACTS OF THE CASE WERE THAT CERTAIN DISALLOWANCES WERE MADE BY THE A SSESSING OFFICER IN THE BLOCK ASSESSMENT PROCEEDINGS. ON AN APPEAL FILED BY THE ASSESSEE, THE CIT(A) VIDE HIS ORDER DT.24/12/2004 SET ASIDE THE BLOCK ASSESSMENT ORDER BY HOLDING THAT THE UNDISCLOSED INCOME COMPUTED BY THE AO COULD NOT BE SUSTAINED INTER A LIA ON THE GROUND THAT THERE WAS NO EVIDENCE OR ANY MATERIAL FOUND DURING THE SEARCH PROCEEDINGS ON THE BASIS OF WHICH THE UNDISCLOSED INCOME COULD BE ASSESSED U/S 158BC OF THE ACT. THE CIT(A) HOWEVER OBSERVED THAT THE AO WAS FREE TO LOOK INTO AND CONSIDER THE SAID DISALLOWANCES U/S ITA NO. 1 853 /DEL/201 1 15 148 OF THE I.T. ACT IN THE RELEVANT ASSESSMENT YEARS IN TERMS OF SEE. 150(1) R.W. EXPLANATION 2 TO SEC. 153 OF THE ACT. BASED ON THE ABOVE OBSERVATIONS MADE BY THE CIT(A), THE AO ISSUED THE NOTICES U/S 148 OF THE ACT SO AS TO R EOPEN THE ASSESSMENTS FOR THE A.YRS. 1989 - 90 TO A.Y. 1999 - 2000. IN THE WRIT PETITION FILED BY THE ASSESSEE, THE HON'BLE BOMBAY HIGH COURT, HELD AS FOLLOWS : - 'UNDER S.150 OF THE ACT, IRRESPECTIVE OF THE LIMITATION PRESCRIBED U/S 149, REASSESSMENT PROCEEDI NGS CAN BE INITIATED AT ANY TIME IF THE INITIATION OF REASSESSMENT IS IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN ANY ORDER PASSED BY ANY AUTHORITY UNDER THE ACT BY WAY OF APPEAL, REFERENCE OR REVISION OR BY A COURT IN ANY PROCEEDING UNDER ANY OTHER LAW. WHILE CONSTRUING SIMILAR PROVISIONS CONTAINED IN THE 1922, ACT, THE APEX COURT IN THE CASE OF MURLIDHAR BHAGWAN DAS (SUPRA) HELD THAT THE WORD 'FINDING' CAN BE ONLY THAT WHICH IS NECESSARY FOR THE DISPOSAL OF AN APPEAL IN RE SPECT OF AN ASSESSMENT OF A PARTICULAR YEAR. THE APEX COURT FURTHER HELD THAT THE APPELLATE AUTHORITY MAY INCIDENTALLY FIND THAT THE INCOME BELONGS TO ANOTHER YEAR, BUT THAT IS NOT A FINDING NECESSARY FOR THE ITA NO. 1 853 /DEL/201 1 16 DISPOSAL OF AN APPEAL IN RESPECT OF THE ASSESSM ENT YEAR IN QUESTION. SIMILARLY, THE EXPRESSION 'DIRECTION' HAS BEEN CONSTRUED BY THE APEX COURT TO MEAN A DIRECTION WHICH THE APPELLATE OR REVISIONAL AUTHORITY AS THE CASE MAY BE, IS EMPOWERED TO GIVE UNDER THE SECTIONS MENTIONED THEREIN. IN THE PRESENT C ASE, THE CIT(A) HAS NEITHER GIVEN A FINDING TO THE EFFECT THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT NOR GIVEN ANY DIRECTION TO THE ITO TO INITIATE REASSESSMENT PROCEEDINGS FOR THE BLOCK PERIOD BY ISSUING NOTICES U/S 148 OF THE ACT. THE CLEAR FINDING RECORDED BY THE CIT(A) IS THAT THERE IS NO EVIDENCE OR ANY MATERIAL FOUND DURING THE SEARCH PROCEEDINGS ON THE BASIS OF WHICH UNDISCLOSED INCOME CAN BE COMPUTED U/S 158BC OF THE ACT. THE CIT(A) HAS RECORDED A FINDING (SEE. P. 141 OF THE PETITION) THAT EVEN THE STATEMENTS RECORDED IN THE FORM OF PRELIMINARY OR FINAL STATEMENTS DO NOT SHOW ANY ADMISSION BY MR. STANY SALDANHA (DIRECTOR OF THE ASSESSEE) WHICH CAN BE USED AS A MATERIAL RELATABLE TO ANY EVIDENCE FOUND ON 7TH SEPT., 1998 AS NONE WAS FOUN D ON THAT DATE. IT IS FURTHER HELD THAT THERE IS NOTHING IN THE STATEMENT EXPRESSING ANY DOUBT FOR NON - ITA NO. 1 853 /DEL/201 1 17 GENUINENESS OF THE LOAN TRANSACTION AS ALSO DISALLOWANCE OF DEPRECIATION ON FIXED ASSETS. IN THESE PETITIONS, WE ARE NOT CALLED UPON TO DECIDE THE CORREC TNESS OF THE ABOVE FINDINGS RECORDED BY THE CIT(A). THE ABOVE OBSERVATIONS OF CIT(A) MAY BE ERRONEOUS AND MAY BE SET ASIDE BY THE TRIBUNAL WHILE DISPOSING THE APPEAL FILED BY THE REVENUE. THAT IS A DIFFERENT MATTER. BUT AS THE FINDINGS RECORDED BY THE CIT( A) STAND TODAY, THERE IS NO EVIDENCE OR MATERIAL ON RECORD TO HOLD THAT THE INCOME HAS ESCAPED ASSESSMENT AND THERE IS NO DIRECTION TO THE ITO TO INITIATE REASSESSMENT PROCEEDINGS. THEREFORE, THE CONTENTION OF THE REVENUE THAT THE CIT(A) HAS GIVEN A FINDIN G AND A DIRECTION TO REOPEN THE ASSESSMENTS CANNOT BE ACCEPTED. THE FACT THAT THE CIT(A) IN HIS ORDER DT.24TH DEC., 2004 HAS OBSERVED THAT THE AO IS FREE TO LOOK INTO AND CONSIDER THE DISALLOWANCES U/S 148 OF THE ACT IN THE RELEVANT ASSESSMENT YEARS IN TE RMS OF S. 150(1) R/W EXPLN. 2 TO S. 153 CANNOT BE CONSTRUED TO BE A DIRECTION TO REOPEN THE ASSESSMENTS SO AS TO ISSUE REASSESSMENT NOTICES EVEN AFTER THE EXPIRY OF SIX YEARS FROM THE END OF THE RELEVANT ASSESSMENT VEERS, AS ITA NO. 1 853 /DEL/201 1 18 CONTEMPLATED U/S 150 OF THE ACT . THE ABOVE OBSERVATIONS MADE BY THE CIT(A) CAN AT BEST BE SAID TO BE A SUGGESTION MADE TO THE AO TO CONSIDER AS TO WHETHER SUCH DISALLOWANCES COULD BE MADE BY INITIATING REASSESSMENT PROCEEDINGS. IF THE FINDINGS GIVEN BY THE CIT(A) WERE THAT, THERE IS EVI DENCE ON MATERIAL ON RECORD TO SUGGEST THAT INCOME HAS ESCAPED ASSESSMENT BUT THE SAME CANNOT BE BROUGHT TO TAX IN THE BLOCK ASSESSMENT AND ACCORDINGLY IF ANY DIRECTIONS WERE GIVEN FOR REOPENING OF THE ASSESSMENTS THEN IT WOULD BE A TOTALLY DIFFERENT MATTE R. HOWEVER, IN THE PRESENT CASE, THE CIT(A) HAS GIVEN A CLEAR FINDING THAT THERE IS NO EVIDENCE OR MATERIAL ON RECORD TO SUSTAIN THE ADDITIONS AND, HENCE, THE CIT(A) COULD NOT HAVE GIVEN DIRECTIONS TO THE ITO TO INITIATE REASSESSMENT PROCEEDINGS. THEREFORE , THE CONTENTION OF THE REVENUE THAT THE CIT(A) HAS DIRECTED THE AO TO INITIATE REASSESSMENT PROCEEDINGS CANNOT BE ACCEPTED. AS HELD BY THE APEX COURT IN THE CASE OF RAJINDER NATH (SUPRA), THE OBSERVATIONS OF CIT(A) THAT THE ITO IS FREE TO LOOK AND CONSI DER THE DISALLOWANCES, WOULD SIMPLY MEAN, GIVING AN OPTION AND DISCRETION TO THE ITO TO TAKE OR NOT TO TAKE ACTION AS HE DEEMS FIT AND SUCH AN OBSERVATION CANNOT BE SAID TO BE A 'DIRECTION' GIVEN BY THE CIT(A) AS CONTEMPLATED U/S 150 OF THE ACT. ITA NO. 1 853 /DEL/201 1 19 THE HON BLE BOMBAY HIGH COURT HELD THAT THE CIT(A) HAD NOT GIVEN ANY FINDING OR DIRECTION FOR REOPENING OF THE ASSESSMENTS AND, THEREFORE, THE PROVISIONS OF SEC.150 WERE NOT APPLICABLE, CONSEQUENTLY, THE IMPUGNED NOTICES WHICH ARE TIME BARRED UNDER S.149 OF THE A CT ARE WITHOUT JURISDICTION AND ARE LIABLE TO BE QUASHED AND SET ASIDE. ONCE, IT IS HELD THAT THE CIT(A) HAS NOT GIVEN ANY FINDING OR DIRECTION FOR REOPENING THE ASSESSMENT, THE BENEFIT OF EXPLANATION 2 TO S.153 OF THE ACT WOULD NOT BE AVAILABLE TO THE REV ENUE. 7. IN VIEW OF THE AFORESAID, WE ARE OF THE CONSDIERED OPINION THAT DIRECTIONS ISSUED U/S. 150 ARE NOT MAINTAINABLE, HENCE, WE VACATE THE DIRECTIONS SISSUED BY THE LD. CIT(A) UNDER SECTION 150. HENCE, THIS GROUND OF APPEAL IS ALLOWED IN FAVOR OF THE ASSESSEE. 8. IN SO FAR AS GROUND NO. 2 IS CONCERNED, RELATING TO NOT ACCEPTING DECLARATION OF JEWELLRY IN QUESTION UNDER KAR VIVAD SAMADHAN SCHEME (KVSS) FILED BY DR. SPS BAKSHI AND ACCEPTANCE THEREOF. WE NOTE THAT LD. CIT(A) IN ITS IMPUGNED ORDER HAS NOT AC CEPTED THE DECLARATION OF KVSS ON THE SOLE GROUND THAT IT DOES NOT PERTAIN TO LATE DR. KRIPAL SINGH BAKSHI AND IGNORED THE FACT THAT INCOME TAXED IN THE HADNS OF LATE KRIPAL SINGH BAKSHI IS NOTHING BUT THE INCOME ALREADY TAXED IN THE HANDS OF DR. SPS BAKS HI FOR WHICH KVSS WAS FILED AND HENCE, RELIANCE PLACED ON KVSS FILED BY DR. SPS BAKSHI IS NOT MISPLACED. HENCE, THIS GROUND OF APPEAL IS ALLOWED IN FAVOR OF THE ASSESSEE. 9. IN SO FAR AS GROUND NO. 3 IS CONCERNED, RELATED TO NOT ADJUDICATING CHALL ENGE TO THE VALIDITY OF PROCEEDINGS INITIATED UNDER SECTION 148 OF THE ACT, WE NOTE THAT THIS GROUND OF APPEAL WAS NOT ITA NO. 1 853 /DEL/201 1 20 PRESSED BY THE ASSESSEE, HENCE, THE SAME IS DISMISSED AS NOT PRESSED. 10. IN SO FAR AS GROUJND NO. 4 IS CONCERNED, RELATED UPHOLDING THE ADDITION OF RS. 1 LAKH IN FIXED DEPOSIT AND INTEREST ACCRUED THEREON IN THE HANDS OF THE ASSESSEE. WE NOTE THAT THE FIXED DEPOSIT OF RS. 1 LAKH OF WHICH ADDITION HAS BEEN UPHELD BY CIT(A) IN PARA 5.2 AND 5.3 WAS ADMITTED IN THE NAME OF MRS. MEHTAB KAU R W/O LATE DR. KRIPAL SINGH BAKSHI. THIS FDR WAS CONSIDERED BY THE AO IN ASSTT. YEAR 1994 - 95 IN THE ASSESSMENT OF DR. SPS BAKSHI CONFIRMING THAT IT BELONGS TO MRS. MEHTAB KAUR. SINCE MRS. MEHTAB KAUR WAS ASSESSED TO TAX THEREFORE NO ADDITION COULD HAVE BEE N MADE IN THE HANDS OF LATE KRIPAL SINGH BAKSHI. WE NOTE THAT LD. CIT(A) IN PARA 6 OF ORDER OF DR. SPS BAKSHI FOR A.Y. 1994 - 95 BY DETAILED SPEAKING ORDER CONFIRMED THAT THIS FDR BELONG TO MRS. MAHTAB KAUR AND SAME HAS BEEN DECLARED BY HER IN HER INCOME T AX RETURN THEREFORE SHE CANNOT BE TREATED AS BENAMIDAR OF DR. SPS BAKSHI. IN THIS BEHALF, COPY OF CERTIFICATE ISSUED BY THE BANKER CONFIRMING THAT FIXED DEPOSIT WAS ISUED IN FAVOR OF MRS. MEHTAB KAUR OUT OF HER SAVING ACCOUNT. ACCORDINGLY, THIS GROUND O F APPEAL IS ALLOWED IN FAVOR OF THE ASSESSEE. 11 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE O PEN C OURT ON 30 / 10 /20 1 4 . SD/ - SD/ - [ T.S. KAPOOR ] [ H.S. SIDHU ] ACCOUNTANT M EMBER JUDICIAL MEMBER DATE 30 / 10 /201 4 SRBHATNAGAR COPY FORWARDED TO: - ITA NO. 1 853 /DEL/201 1 21 1.APPELLANT 2.RESPONDENT 3. CIT 4. CIT (A) 5.DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES