NITIN GANDHI, MUMBAI V. DCIT 22(2), MUMBAI

ITA 2009/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3742 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 26-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Unexplained cash credit; Gift; Period of limitation; Additional evidence; Time period of passing order
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO . 2009/MUM/2012 ASSESSMENT YEAR: 2008-09 SHRI NITIN GANDHI 520, UTSAV, 12 TH ROAD, CHEMBUR MUMBAI- 400 071 PAN: ACGPG 0805 K VS. DCIT 22(2) AAYAKAR BHAVAN, M.K. ROAD MUMBAI. 400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI MOHIT JAIN DATE OF HEARING : 09.04.2013 DATE OF PRONOUNCEMENT : 08.05.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECT AGAINS T THE ORDER OF THE LD. CIT(A) - 33, MUMBAI DATED 31.01.2012 FOR THE A.Y. 2008-09. 2. GROUNDS NO. 1 & 2 RELATE TO THE ADDITION OF RS.1 5,34,000/- MADE BY THE AO TO THE TOTAL INCOME ON ACCOUNT OF UNEXPLAINED CASH CRE DIT/CEASED LIABILITY U/S 28(IV) OF THE INCOME TAX ACT AND THE DIRECTION GIVEN BY THE L D. CIT(A) TO RE-OPEN THE A.Y. 2002-03 AS THE ADDITION WAS NOT SUSTAINABLE IN THE RELEVANT YEAR UNDER CONSIDERATION. 3. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL ENGA GED IN THE BUSINESS OF BUILDER AND DEVELOPER IN THE BALANCE SHEET HAD SHOWN AN UNS ECURED LOAN OF RS.15,34,000/- FROM ONE SHRI SHYAM WANI AS THE SAID LOAN WAS OUTST ANDING SINCE MANY YEARS. HOWEVER, IN THE ASSESSMENT FRAMED U/S 143(3), THE A O TREATED THE IMPUGNED AMOUNT AS UNEXPLAINED CASH CREDITS AND ACCORDINGLY ADDED BACK THE SAME TO THE TOTAL INCOME OF THE ASSESSEE FOR THE FOLLOWING REAS ONS: ITA NO . 2009 /MUM/2012 SHRI NITIN GANDHI ASSESSMENT YEAR: 2008-09 2 (I) THE SAID LOAN HAS NOT BEEN CONFIRMED BY THE CREDITO R. (II) THE IDENTITY OF THE CREDITOR IS ALSO NOT ESTABLISHE D. (III) IN VIEW OF LACK OF ACKNOWLEDGEMENT OF THE SAID LOA N BY THE LOAN CREDITOR, IT IS A CEASED LIABILITY. (IV) THE LOAN UNDER CONSIDERATION IS APPEARING IN THE BO OKS OF ACCOUNTS OF THE ASSESSEE AND HAS CEASED AS A LIABILITY IN VIEW OF NON-SUBMISSION OF CONFIRMATION. (V)THE SAID LOAN WAS BORROWED FOR THE BUSINESS PURP OSES OF THE ASSESSEE. HENCE, IT IS NOTHING BUT A BENEFIT ARISING TO THE A SSESSEE FROM THE BUSINESS AND IS WITHIN THE PURVIEW OF SECTION 28(IV ) OF THE INCOME TAX ACT, 1961. ACCORDINGLY, THE SAID AMOUNT OF RS.15,34 ,000/- IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S 28(IV) OF THE INCO ME TAX ACT, 1961. 4. ON APPEAL, THE LD.CIT(A) DIRECTED THE AO TO RE-O PEN THE A.Y. 2002-03 AS THE ADDITION WAS NOT SUSTAINABLE IN THE RELEVANT YEAR U NDER CONSIDERATION AND THE RELEVANT FINDINGS ARE EXTRACTED HEREUNDER: DURING THE APPELLATE PROCEEDINGS THE APPELLANT HAS FILED A CONFIRMATION LETTER IN THE NAME OF SHRI SHYAM WANI, SINCE THIS WAS NEVE R PRODUCED BEFORE THE AO THE APPELLANT WAS ASKED THE REASON AND PURPOSE O F PRODUCING IT NOW. IT HAS BEEN STATED BY THE APPELLANT THAT HE COULD NOT BE PRODUCED BEFORE THE AO AND HENCE IT IS IN THE NATURE OF ADDITIONAL EVID ENCE. THE SUBMISSION ALSO SAYS THAT THE LOAN WAS TAKEN FROM SHRI SHYAM WANI I N EARLIER YEAR I.E. IN 2002 MEANING THEREBY IT PERTAINS TO A.Y. 2002-03. I N VIEW OF THIS ALSO THERE IS NO GROUND TO ADMIT THE SAME AS ADDITIONAL EVIDENCE IN THE INSTANT APPEAL FOR A.Y. 2008-09 WHERE IT IS REFLECTED AS OPENING BALAN CE IN THE SAME OF SHRI SHYAM WANI. THE APPELLANT HAS ADMITTED THAT THE PER SON IS NOT FILING RETURN OF INCOME AND HENCE DOES NOT HAVE ANY PAN NUMBER. I N VIEW OF THIS THAT THE SAID PERSON DOES NOT HAVE ANY SOURCE OF INOCME AND CONSEQUENTLY NOT FILING ANY RETURN OF INCOME ALSO AND INFACT DOES NOT HAVE ANY PAN: NUMBER THE IDENTITY AS WELL AS CREDITWORTHINESS HAS NOT BEEN P ROVED. ACCORDINGLY AO IS DIRECTED TO REOPEN THE A.Y. 2002-03 WHEN SAME HAS B EEN SHOWN AS RECEIVED FROM THE PERSON IN THE BOOKS OF APPELLANT TO BRING IT TO TAX. AS THE AMOUNT IS ITA NO . 2009 /MUM/2012 SHRI NITIN GANDHI ASSESSMENT YEAR: 2008-09 3 APPEARING AS OPENING BALANCE IN INSTANT A.Y. 2008-0 9 SAME CANNOT BE ADDED HERE AND ACCORDINGLY GROUND NO. 4 IS TREATED ALLOWE D FOR STATISTICAL PURPOSE. AGGRIEVED BY THE IMPUGNED ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 5. BEFORE US THE LD. AR HAS STATED THAT IT IS AN AD MITTED FACT THAT THE IMPUGNED RECEIPT/LOAN PERTAINS TO A.Y. 2002-03 AND THE SAME CANNOT BE TAXED DURING THE YEAR UNDER CONSIDERATION. THE LD. AR HAS ALSO SUBMITTED BEFORE US A WRITTEN SUBMISSION TO SUPPORT THE ANALOGY THAT THE LD.CIT(A) IS NOT CO RRECT IN DIRECTING THE AO TO REOPEN THE ASSESSMENT FOR THE A.Y. 2002-03 WHEN THE SAME IS NOT RELATED TO THE GROUNDS IN ISSUE BEFORE HIM. THE RELEVANT PORTION O F THE WRITTEN SUBMISSION IS REPRODUCED HEREUNDER: I. THE CIT(A) COULD NOT HAVE ISSUED DIRECTION TO TH E ASSESSING OFFICER TO ISSUE NOTICE U/S.148 OF THE ACT AS REOPENING OF THE ASSESSMENT HAS TO BE BASED ON OWN BELIEF OF THE ASSESSING OFFICER AND IT CANNOT B E PURSUANT TO THE DIRECTION OF HIGHER AUTHORITY . BIRESWAR SARKAR V. GIFT-TAX OFFICER [223 ITR 4 04) (CAL)] SHEO NARAIN JAISWAL V ITO [176 ITR 352) (PAT)] CIT V. T.R. RAJAKUMARI [96 ITR 78) (MAD)] IN VIEW OF THIS, DIRECTION OF THE CIT(A) TO REOPEN THE ASSESSMENT IS ILLEGAL. II. THE FINDING IN THE APPELLATE ORDER SHOULD CONFINE TO THE SUBJECT MATTER UNDER CONSIDERATION OF THE APPEAL ONLY. THE FINDIN G SHOULD BE NECESSARY FOR THE DISPOSAL OF GROUND OF APPEAL. * ITO V. MURLIDHAR BHAGWAN DAS [52 ITR 335, 343, 3 85)(SC)] SECTION 31 PRESCRIBES THE MODE OF DISPOSAL BY AN AP PELLATE ASSISTANT COMMISSIONER OF AN APPEAL PREFERRED TO HIM: THE APPEAL BEFORE HI M IS CERTAINLY CONFINED TO AN ASSESSMENT YEAR; AFTER HEARING THE APPEAL, HE CAN E ITHER CONFIRM, REDUCE, ENHANCE OR ANNUAL THE ASSESSMENT; HE CAN SET ASIDE THE ASSESSM ENT AND DIRECT THE INCOME-TAX OFFICER TO MAKE A FRESH ASSESSMENT. THE VARIOUS SUB -SECTIONS OF THAT SECTION DESCRIBE IN DETAIL THE ORDERS OR DIRECTIONS THAT CAN BE MADE OR ISSUED BY HIM IN RESPECT OF VARIOUS MATTERS; BUT NO POWER IS CONFERRED ON HIM T O MAKE AN ORDER OR ISSUE DIRECTIONS IN RESPECT OF AN ASSESSMENT OF A YEAR WH ICH WAS NOT THE SUBJECT MATTER OF THE APPEAL. IT MAY, THEREFORE, BE HELD, ON A CONSTR UCTION OF THE PROVISIONS OF SECTION 31, THAT THE JURISDICTION OF THE APPELLATE ASSISTAN T COMMISSIONER IS STRICTLY CONFINED TO THE ASSESSMENT ORDERS F A PARTICULAR YEAR UNDER APP EAL. (EMPHASIS SUPPLIED). .A FINDING, THEREFORE, CAN BE ONLY THAT WHICH I S NECESSARY FOR THE DISPOSAL OF AN APPEAL IN RESPECT OF AN ASSESSMENT OF A PARTICULAR YEAR. THE APPELLATE ASSISTANT COMMISSIONER MAY HOLD, ON THE EVIDENCE, THAT THE IN COME SHOWN BY THE ASSESSEE IS NOT THE INCOME FOR THE RELEVANT YEAR AND THEREBY EX CLUDE THAT INCOME FROM THE ASSESSMENT OF THE YEAR UNDER APPEAL. THE FINDING IN THAT CONTEXT IS THAT THAT INCOME DOES NOT BELONG TO THE RELEVANT YEAR. HE MAY INCIDE NTALLY FIND THAT THE INCOME BELONGS TO ANOTHER YEAR, BUT THAT IS NOT A FINDING NECESSARY FOR THE DISPOSAL OF AN APPEAL IN RESPECT OF THE YEAR OF ASSESSMENT IN QUES TION ITA NO . 2009 /MUM/2012 SHRI NITIN GANDHI ASSESSMENT YEAR: 2008-09 4 * RAJINDER NATH V. CIT [120 ITR 14, 19) (SC)] THE EXPRESSION FINDING AND DIRECTION ARE LIMIT ED IN MEANING. A FINDING GIVEN IN AN APPEAL, REVISION OR REFERENCE ARISING OUT OF AN ASS ESSMENT 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 PARTICUL AR 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 RENDE R A FINDING IN RESPECT OF A, A FINDING IN RESPECT OF B MAY BE CALLED FOR. FOR INSTANCE, WH ERE THE FACTS SHOW THAT THE INCOME CAN BELONG EITHER TO A OR B AND TO NO ONE ELSE, A F INDING THAT IT BELONGS TO B OR DOES NOT BELONG TO B WOULD BE DETERMINATIVE OF THE ISSUE WHETHER IT CAN BE TAXED AS AS INCOME. A FINDING RESPECTING B IS INTIMATELY INVOLV ED AS A STEP IN THE PROCESS OF REACHING THE ULTIMATE FINDING RESPECTING A. IF, HOWEVER, THE FINDING AS TO AS LIABILITY CAN BE DIRECTLY ARRIVED AT WITHOUT NECESS ITATING A FINDING IN RESPECT OF B, THEN A FINDING MADE IN RESPECT OF B IS AN INC IDENTAL FINDING ONLY. IT IS NOT A FINDING NECESSARY FOR THE DISPOSAL OF THE CAS E PERTAINING TO A. THE SAME PRINCIPLES SEEM TO APPLY WHEN THE QUESTION IS WHETHER THE INCOME UNDER ENQUIRY IS TAXABLE IN THE ASSESSMENT YEAR UND ER CONSIDERATION OR ANY OTHER ASSESSMENT YEAR. AS REGARDS THE EXPRESSION DIRECTION IN S. 153(3) (II) OF THE ACT, IT IS NOW WELL SETTLED THAT IT MUST BE AN EXPRESS DIRECTION NECESSARY FOR THE DISPOSAL OF THE CASE BEFORE THE AUTHORITY OR CO URT IS EMPOWERED TO GIVE WHILE DECIDING THE CASE BEFORE IT (EMPHASIS SUPPLIED). III. WITHOUT PREJUDICE, THE LEARNED CIT(A) OUGHT NOT TO HAVE DIRECTED THE ASSESSING OFFICER TO RE-OPEN ASSESSMENT WHEN THE AS SESSING OFFICER HIMSELF HAD NOT CHOSEN TO RE-OPEN ASSESSMENTS ALTHOUGH ALL FACTS WE RE AVAILABLE BEFORE HIM. * SUN METAL FACTORY (I)(P.) LTD V. ACIT [124 ITD 14 (CHEN)] BLOCK PERIOD FROM 01.04.1990 TO 03.11.2000- WHE THER AN APPELLATE AUTHORITY CAN GIVE FINDINGS AND DIRECTION ONLY IN RESPECT OF YEAR /PERIOD WHICH IS BEFORE THAT AUTHORITY AND NO DIRECTION OR FINDING CAN BE GIVEN IN RESPECT OF OTHER YEARS-HELD, YES- WHETHER, THEREFORE, WHERE CIT(A) WHILE HEARING ASSE SSEES APPEAL RELATING TO BLOCK PERIOD RECORDED A FINDING THAT ADDITION MADE BY A.O . WAS NOT BASED ON EVIDENCE FOUND DURING SEARCH, SAME COULD NOT ENLARGE SCOPE O F APPEAL FOR GIVING DIRECTION TO A.O. TO REOPEN ASSESSMENT FOR A.Y. 1999-2000 PARTIC ULARLY WHEN A.O. HIMSELF HAD NOT CHOSEN FOR REOPENING ASSESSMENT HELD,YES. IV. BY GIVING DIRECTIONS, LEARNED CIT(A) HAS SOUGHT TO ENLARGE THE LIMITATION PERIOD, WHICH IS BEYOND THE POWER OF APPELLATE AUTH ORITY. *RAJINDER NATH V.COMMISSIONER OF INCOME-TAX(120 ITR 14 ,19)(SC) . THE EXPRESSION FINDING AND DIRECTION IN S. 153( 3) (II) OF THE ACT MUST BE ACCORDINGLY CONFINED. S. 153(3)(II) IS NOT A PROVIS ION ENLARGING THE JURISDICTION OF THE AUTHORITY OR COURT. IT IS A PRO VISION WHICH MERELY RAISES THE BAR OF LIMITATION FOR MAKING AN ASSESSMENT ORDER UNDER S. 143 OR S. 144 OR S. 147: ITO V. MURLIDHAR BHAGWAN DAS [1964] 52 I TR 335 (SC) AND N. K.T. SIVALINGAM CHETTIAR V. CIT [1967] 66 ITR 586 ( SC). V. IT APPEARS THAT THE LEARNED CIT(A) BY GIVING DIRECT IONS TO THE ASSESSING OFFICER HAS SOUGHT TO SECURE THE INTEREST OF THE REVENUE AF TER HAVING REALISED THAT NO ADDITION COULD BE MADE IN THE ASSESSMENT YEAR UNDER CONSIDERATION BY GIVING FINDING IN RESPECT OF ASSESSMENT YEAR THAT HAS BEEN CONCLUD ED BY THE ASSESSING OFFICER. IT IS ITA NO . 2009 /MUM/2012 SHRI NITIN GANDHI ASSESSMENT YEAR: 2008-09 5 SUBMITTED THAT THE APPELLATE AUTHORITY IS NOT DUTY BOUND TO ISSUE DIRECTION ONLY FOR THE PURPOSE TO SECURE THE INTEREST OF THE REVENUE. * SUJEER PROPERTIES (AOP) V. ITO [131 ITD 377, 383) ( MUM)] 8. LEARNED DEPARTMENTAL REPR ESENTATIVES REQUEST FOR DIRECTION UNDER SECTION 150 IS ALSO DEVOID OF LEGALLY SUSTAINABLE M ERITS. SECTION 150(1) PROVIDES THAT, NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 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 EFFEC T TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED BY ANY AUTHORITY IN AN Y PROCEEDING UNDER THIS ACT BY WAY OF APPEAL, REFERENCE OR REVISION OR BY A COURT IN ANY PROCEEDING UNDER ANY OTHER LAW. SECTION 150 DOES NOT ENABLE OR REQUIRE AN APPELLATE AUTHORITY TO GIVE ANY DIRECTIONS FOR REOPENING OF ASSESSMENT, BUT IT DEALS WITH A SITUATION IN WHICH A REASSESSMENT IS TO BE INITIATED TO GIVE EFF ECT TO FINDINGS OR DIRECTIONS OF THE APPELLATE AUTHORITY OR THE COURT. THAT IS A CAL TO BE TAKEN BY THE ASSESSING OFFICER AND NOT BY ME. HAVING SAID THAT, LET ME ALSO ADD THAT IN TERMS OF HONBLE SUPREME COURTS JUDGMENT IN THE CA SE OF RAJINDER NATH V. CIT (120 ITR 12), AN APPELLATE AUTHORITYS POWERS TO GIVE FI NDINGS OR DIRECTIONS ARE NOT UNFETTERED SO AS TO GIVE ANY SUCH FINDINGS OR DIREC TIONS AS APPELLATE AUTHORITY DEEMS DESIRABLE ON THE FACTS OF THE CASE, BUT, IN THEIR L ORDSHIPS CONSIDERED OPINION, AN APPELLATE AUTHORITY CAN GIVE ONLY SUCH FINDINGS OR DIRECTIONS AS ARE NECESSARY FOR DISPOSAL OF AN APPEAL. AS I UNDERSTAN D, SCHEME OF THE INCOME TAX ACT, AS VISUALIZED BY HONBLE SUPREME CO URT IN RAJENDER NATHS CASE (SUPRA), DOES NOT PERMIT CONSIDERATIONS OF SAF EGUARDING THE INTERESTS OF REVENUE TO HAVE A ROLE TO PLAY IN MY GIVING SUCH FINDINGS OR DIRECTIONS. TO THE EXTENT SAFEGUARDING OF THESE INTERESTS IS NO T IMPLICIT IN THE SCHEME OF THE INCOME TAX ACT, IT IS NOT FOR ME TO SUPPLEME NT THE SAME EITHER. I AM NOT, THEREFORE, INCLINED TO CONSIDER THE PLEA OF TH E LEARNED DEPARTMENTAL REPRESENTATIVE THAT, WITH A VIEW TO SAFEGUARD THE I NTERESTS OF THE REVENUE, I MUST GIVE A FINDING SO AS TO ENABLE THE ASSESSING OFFICE R TO REOPEN THE ASSESSMENTS OF CO- OWNERS. I HAVE GIVEN SUCH FINDINGS AS, IN MY CONSID ERED VIEW, ARE NECESSARY TO ADJUDICATE ON THIS APPEAL. WHETHER THESE FINDINGS N ECESSITATE OR JUSTIFY REOPENING OF ASSESSMENTS OF CO-OWNERS THAT IS FOR THE ASSESSING OFFICER TO EXAMINE. (EMPHASIS SUPPLIED). ON THE OTHER HAND, THE LD. DR HAS RELIED ON THE ORD ER OF THE LD.CIT(A) IN SUPPORT OF THE REVENUES CASE. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. WE ARE IN AGREEMENT WITH THE FINDING OF THE LD.CIT(A) THAT THE IMPUGNED ADDITION CANNOT BE MADE IN THE RELEVANT YEAR UNDER CONSIDERATION. HOWE VER, WE ARE OF THE VIEW THAT THE DIRECTION OF THE LD.CIT(A) TO REOPEN THE A.Y. 2002- 03 IS NOT JUSTIFIED. FIRST OF ALL, THE CREDIT RECEIVED BY THE ASSESSEE ARE AS UNDER: ITA NO . 2009 /MUM/2012 SHRI NITIN GANDHI ASSESSMENT YEAR: 2008-09 6 DATE BY BANK AMOUNT(RS.) 08.01.2002 BY BANK 1,50,000/- 08.01.2002 BY BANK 5,000/- 01.02.2002 BY BANK 1,50,000/- 11.02.2002 BY BANK 29,000/- 07.05.2002 BY BANK 2,00,000/- 29.05.2002 BY BANK 1,00,000/- 24.04.2003 BY BANK 3,00,000/- 14.08.2004 BY BANK 4,00,000/- 25.08.2004 BY BANK 2,00,000/- TOTAL 15,34,000/- AS CAN BE SEEN FROM THE ABOVE ONLY AN AMOUNT OF RS. 3,84,000/- HAS BEEN RECEIVED IN THE FINANCIAL YEAR RELEVANT FOR A.Y. 2002-03. BA LANCE OF THE AMOUNT HAS BEEN RECEIVED IN LATER YEARS. SO, ISSUING DIRECTION FOR THE A.Y. 2002-03 FOR THE ENTIRE AMOUNT IS NOT FACTUALLY CORRECT. SECONDLY, THE ASSE SSEE FURNISHED CONFIRMATION FROM THE PARTY. THIS ADDITIONAL EVIDENCE HAS BEEN REJECT ED BUT THE CONFIRMATION OF CREDIT COULD HAVE BEEN EXAMINED IN THE YEAR ITSELF WHEN THE PARTY CONFIRMS TH E CREDIT HOW A FINDING CAN BE GIVEN FOR REOPENING IN EARLIER YEAR IS NOT EXPLAINED. THIRDLY, THE AO CAN NOT REOPEN THE A.Y. 2002-03 BY THE TIME BE FINALIZED THE PROCEEDING. HE IS AWARE OF THE CREDIT IN THAT YEAR. SINCE THE LAW PROHIBITS THE REOPENING U/S 147 BEYOND SIX YEARS, THE DIRECTION O F LD.CIT(A) TO REOPEN A.Y.2002- 03 IN FINANCIAL YEAR 2012 IN THE ORDER IS AGAINST T HE PROVISIONS OF LAW AND PRINCIPLES ON THE ISSUE. THERE IS NO FINDING THAT THE AMOUNT W AS UNDISCLOSED. EVEN THE AO ORDER INDICATES THAT IT IS RECEIVED THROUGH BANKING CHANNEL. THAT ITSELF MAY NOT AFFIRM THE GENUINENESS OF THE CREDIT BUT CONFIRMATION FILE D BY ASSESSEE PRIMA FACIE INDICATE THAT THE AMOUNT CAN NOT BE TREATED AS UNEXPLAINED C ASH CREDIT. FURTHER, THE VARIOUS DECISIONS RELIED ON BY THE LD. AR CLEARLY SUGGESTS THAT THE DIRECTION GIVEN BY THE LD.CIT(A) TO REOPEN THE ASSESSMENT FOR THE A.Y. 200 2-03 IS NOT A FINDING NECESSARY FOR THE DISPOSAL OF AN APPEAL IN RESPECT OF THE YEA R OF ASSESSMENT IN QUESTION WHICH IN OUR VIEW IS THE RESULT OF ULTRA VIRES EXERCISE O F JURISDICTION BY THE LD.CIT(A). WHILE WE AGREE WITH THE FINDINGS OF THE LD.CIT(A) THAT TH E IMPUGNED ADDITION CANNOT BE ITA NO . 2009 /MUM/2012 SHRI NITIN GANDHI ASSESSMENT YEAR: 2008-09 7 MADE IN THE RELEVANT YEAR UNDER CONSIDERATION, WE A RE OF THE VIEW THAT THE DIRECTION OF THE LD.CIT(A) TO REOPEN THE A.Y. 2002-03 IS NOT JUSTIFIED AND ACCORDINGLY WE DECIDE THE GROUNDS IN FAVOUR OF THE ASSESSEE. 7. FOR THE ABOVE REASONS, WE DO NOT AGREE WITH THE DECISION GIVEN BY THE LD.CIT(A). ACCORDINGLY THE ORDER OF THE LD.CIT(A) I S MODIFIED. THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08 TH DAY OF MAY, 2013. SD/- SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER (DR. S.T.M. PAVALAN) JUDICIAL MEMBER MUMBAI, DATED: 08.05.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR B BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.