MAHARSHATRA STATE POWER GENERATION CO. LTD, MUMBAI V. ADDL CIT RG 10(1), MUMBAI

ITA 2043/MUM/2011

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6993 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 11-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY KUMAR LD
• Assessee Lawyers: NEERAJ SETH LD
• Keywords: Reopening of assessment; Period of limitation; Question of law; Procedural lapse; Reassessment proceedings; Set aside
• Section: 143(3); 147; 148; 263

Judgement Text

ITA NO.2043/MUM/201 MAHARASHTRA STATE POWER GENERATION CO. LTD. ASSESSMENT YEAR :2007-08 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.2043/MUM/2011 ( / ASSESSMENT YEAR:2007-08 ) MAHARASHTRA STATE POWER GENERATION CO. LTD. PLOT NO. G-9, PRAKASHGAD, 2 ND FLOOR, ANANT KANEKAR MARG STATION ROAD, BANDRA (EAST) MUMBAI-400 051. / VS. THE ADDL. CIT - RA N GE - 10(1) AAYKAR BHAVAN MAHARSHI KARVE ROAD MUMBAI-400 020. ! ./ ! ./PAN/GIR NO. AAECM-2935-R ( '# /APPELLANT ) : ( $%'# / RESPONDENT ) ASSESSEE BY : SHRI NEERAJ SETH - LD.AR REVEN UE BY : SHRI AJAY KUMAR-LD.CIT-DR / DATE OF HEARING : 29/07/2019 / DATE OF PRONOUNCEMENT : 31/07/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2007-08 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-21, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO.CIT(A)-21/IT/661/2009-10 DATED 20/12/2010 ON VARIOUS GROUNDS OF APPEAL. BY WAY OF GROUND NO.1, THE ASSES SEE HAS ITA NO.2043/MUM/201 MAHARASHTRA STATE POWER GENERATION CO. LTD. ASSESSMENT YEAR :2007-08 2 CHALLENGED THE VALIDITY OF REASSESSMENT PROCEEDINGS . THE GROUND READ AS UNDER: - 1.RE.: VALIDITY OF RE-ASSESSMENT PROCEEDINGS: 1.1 THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS E RRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN RE-OPENING THE APPELLANT'S ASS ESSMENT U/S. 148 OF THE INCOME- TAX ACT, 1961. 1.2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACT S AND CIRCUMSTANCES OF ITS CASE AND THE LAW PREVAILING ON THE SUBJECT THE IMPUGNED RE-O PENING U/S. 148 WAS IN EXCESS OF JURISDICTION AND WAS ALSO OTHERWISE BAD IN LAW AND THE COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE HELD AS SUCH. 1.3 THE APPELLANT SUBMITS THAT THE PROCEEDINGS U/S. 148 OF THE ACT WERE NOT IN ACCORDANCE WITH LAW AND CONSEQUENTLY OUGHT TO BE ST RUCK DOWN. 2.1 THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [AR], AT THE OUTSET, SUBMITTED THAT THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST REOPENING THE ASSESSMENT WERE NEVER DISPOSED-OFF BY LD. ASSESSING OFFICER AS MANDATED BY THE DECISION OF HONBLE SUPR EME COURT IN GKN DRIVESHAFTS (INDIA) LTD. V/S ITO [259 ITR 19] AND THEREFORE, THE REASSESSMENT PROCEEDINGS STOOD VITIATED IN THE EYES OF LAW. RELIANCE HAS BEEN PLACED ON THE DECISION OF JURISDICTIONAL H ONBLE BOMBAY HIGH COURT RENDERED IN KSS PETRON PRIVATE LIMITED V/S ACIT [ITA NO. 224 OF 2014 DATED 03/10/2016] TO SUBMIT THAT THE MATTER COULD ALSO NOT BE RESTORED BACK TO THE FILE OF LD. AO TO PASS ORDER O N OBJECTIONS RAISED BY THE ASSESSEE. 2.2 ON THE OTHER HAND, LD. CIT-DR RELIED ON PARA 3. 3(A) OF THE IMPUGNED ORDER WHICH WOULD READ AS UNDER: - 3.3(A) THE APPELLANTS FIRST OBJECTION IS THAT THE AO DID NOT DISPOSE-OFF OBJECTIONS RAISED BY IT IN RESPECT OF RE-OPENING OF THE ASSESS MENT PROCEEDINGS. ON THIS ISSUE THE APPELLANT HAS RELIED ON VARIOUS CASE-LAWS. I HA VE CONSIDERED THE FACTS OF THE CASE AND DECISIONS RELIED ON BY THE APPELLANT. THOU GH AS PER DECISIONS OF THE HON'BLE SUPREME COURT AND OTHER DECISIONS, IT WAS O BLIGATORY ON THE PART OF THE AO TO FIRST DISPOSE-OFF, BY PASSING A SPEAKING ORDER, APPELLANTS OBJECTIONS RAISED AGAINST REOPENING OF THE ASSESSMENT. HOWEVER, THE A SSESSING OFFICERS ACTION OF NOT ITA NO.2043/MUM/201 MAHARASHTRA STATE POWER GENERATION CO. LTD. ASSESSMENT YEAR :2007-08 3 DISPOSING OFF APPELLANTS OBJECTIONS WAS A PROCEDUR AL IRREGULARITY ONLY WHICH DID NOT AFFECT THE LEGALITY OF THE ASSESSMENT ORDER PASSED. IN THE ABOVE DECISIONS RELIED UPON BY THE APPELLANT, THE ASSESSMENT ORDER PASSED WAS NOT HELD TO BE INVALID ON ACCOUNT OF NOT DISPOSING OFF THE ASSESSEES OBJECTI ONS RAISED AGAINST RE-OPENING OF THE ASSESSMENT. IN THOSE CASES THE ASSESSMENT ORDER WAS SET ASIDE TO THE FILE OF THE AO FOR FIRST DISPOSING OFF THE OBJECTIONS BY PASSIN G A SPEAKING ORDER AND THEN FRAME ASSESSMENT ORDER. THEREFORE, ON ACCOUNT OF THIS IRR EGULARITY, THE ASSESSMENT ORDER PASSED BY THE AO CANNOT BE HELD TO BE INVALID. AS P ER EXISTING PROVISIONS OF THE ACT, THE UNDERSIGNED HAS NO POWER TO SET ASIDE THE ASSES SMENT ORDER PASSED BY THE AO. THEREFORE, APPELLANTS OBJECTIONS/ARGUMENTS ON THIS ISSUE ARE NOT ACCEPTABLE. IN THE ABOVE BACKGROUND, LD. CIT-DR PLEADED FOR RES TORATION OF MATTER BACK TO THE FILE OF LD. AO FOR DISPOSAL OF ASSESSEE S OBJECTION AGAINST REASSESSMENT PROCEEDINGS. HOWEVER, THE FACT THAT TH E ASSESSEE HAD RAISED OBJECTIONS AGAINST THE REOPENING OF THE ASSE SSMENT AND THE SAME WAS NOT DISPOSED-OFF BY LD. AO, REMAIN UNCONTROVERT ED. NOTHING ON RECORD WOULD ESTABLISH THAT THE ASSESSEES OBJECTIO NS AGAINST REOPENING OF ASSESSMENT WERE EVER CONSIDERED AND REJECTED BY LD. AO AT ANY POINT OF TIME, DURING REASSESSMENT PROCEEDINGS. 3. AFTER DUE CONSIDERATION OF FACTUAL MATRIX, WE FI ND THAT THE BINDING JUDICIAL PRECEDENT IN THE SHAPE OF CITED DECISION O F HONBLE BOMBAY HIGH COURT SQUARELY APPLIES TO THE FACT OF THE CASE. THE RELEVANT OBSERVATION OF HONBLE COURT, FOR EASE OF REFERENCE, COULD BE E XTRACTED IN THE FOLLOWING MANNER: - 8. WE NOTE THAT ONCE THE IMPUGNED ORDER FINDS THE A SSESSMENT ORDER IS WITHOUT JURISDICTION AS THE LAW LAID DOWN BY THE APEX COURT IN GKN DRIVESHAFTS (SUPRA) HAS NOT BEEN FOLLOWED, THEN THERE IS NO REASON TO RESTO RE THE ISSUE TO THE ASSESSING OFFICER TO PASS A FURTHER/FRESH ORDER. IF THIS IS P ERMITTED, IT WOULD GIVE A LICENCE TO THE ASSESSING OFFICER TO PASS ORDERS ON REOPENING NOTIC E, WITHOUT JURISDICTION (WITHOUT COMPLIANCE OF THE LAW IN ACCORDANCE WITH THE PROCED URE), YET THE ONLY CONSEQUENCE, WOULD BE THAT IN APPEAL, IT WOULD BE RESTORED TO TH E ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER FOLLOWING THE DUE PROCEDURE. THI S WOULD LEAD TO UNNECESSARY HARASSMENT OF THE ASSESSEE BY REVIVING STALE/ OLD M ATTERS. 9. IN FACT, TO ENSURE THAT REOPENING NOTICES ARE D ISPOSED OF, EXPEDITIOUSLY THE PARLIAMENT ITSELF HAS PROVIDED IN SECTION 153(2) OF THE ACT A PERIOD OF LIMITATION WITHIN WHICH THE ASSESSING OFFICER MUST PASS AN ORD ER ON THE NOTICE OF REOPENING ITA NO.2043/MUM/201 MAHARASHTRA STATE POWER GENERATION CO. LTD. ASSESSMENT YEAR :2007-08 4 I.E. WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE WAS ISSUED. IN FACT, SECTION 153 (2A) OF THE ACT AS IN FORCE AT THE RELEVANT TIME ITSELF PROVIDES THAT AN ORDER OF FRESH ASSESSMENT, CONSEQUENT TO THE ORD ER OF TRIBUNAL UNDER SECTION 254 OF THE ACT, WOULD HAVE TO BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 254 OF THE ACT, WAS PASSED BY THE TRIBUNAL AND RECEIVED BY THE COMMISSIONER OF INCOME TAX. 10. THE DIRECTOR OF THE APPELLANT HAS FILED AN AFF IDAVIT DATED 19 TH SEPTEMBER, 2006. IN THE AFFIDAVIT, IT IS STATED THAT CONSEQUEN T TO THE IMPUGNED ORDER OF THE TRIBUNAL DATED 14 TH AUGUST, 2013, THE ASSESSING OFFICER HAS NOT PASSED ANY ORDER OF REASSESSMENT. TIME WAS GRANTED ON THE LAST OCCASION TO ENABLE THE RESPONDENT TO RESPOND TO THE AFFIDAVIT DATED 19 TH SEPTEMBER, 2006 OF THE DIRECTOR OF THE APPELLANT COMPANY. THE RESPONDENT IS UNABLE TO DISPUTE THE FA CTS STATED IN THE AFFIDAVIT DATED 19TH SEPTEMBER, 2016 FILED BY THE DIRECTOR OF THE APPELLANT COMPANY. THE TIME TO PASS A ORDER ON THE NOTICE DATED 28TH MARCH , 2008, EVEN CONSEQUENT TO THE IMPUGNED ORDER OF THE TRIBUNAL, HAS LAPSED . 11 . THEREFORE, ON THE ABOVE FACTS AND LAW, THE SUBSTANT IAL QUESTION OF LAW IS ANSWERED IN THE NEGATIVE I.E. IN FAVOUR OF THE APPE LLANT-ASSESSEE AND AGAINST THE RESPONDENT-REVENUE. THIS DECISION HAS SUBSEQUENTLY BEEN FOLLOWED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN NUMBER OF CASES, FEW OF WHICH CO ULD BE TABULATED AS FOLLOWS: - 1. DCIT M/S. NATIONAL BANK FOR AGRICULTURE AND RURA L DEVELOPMENT [ITA NO.4964/MUM/2014 (A.Y.2004-05) DATED 28/10/201 6] 2. BALDEV RAMRATAN SHARMA VS. ACIT [ITA NO.1909/MUM/2017 (A.Y.2009-10) DATED 28/08/201 8] 3. DCIT V/S FIRSTSOURCE SOLUTIONS LTD. [ITA NOS. 3985-86/MUM/2016 DATED 22/05/2019] 4. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN DCIT V/S FIRSTSOURCE SOLUTIONS LTD. [SUPRA] , AFTER CONSIDERING THE CONTRARY CASE-LAWS AS CITED BY THE REVENUE, HAS CONCLUDED THE MATTER IN THE FOL LOWING MANNER: - 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDISPUTED FACTUAL POSITION, AS CULLED OUT FROM THE MATERIAL ON RECORD, CLEARLY REVEALS THAT IN THE COURSE OF REASSESSMENT PROCEED INGS, THOUGH, THE ASSESSEE HAD RAISED OBJECTIONS CHALLENGING THE VALIDITY OF REOP ENING OF ASSESSMENTS UNDER SECTION 147 OF THE ACT, HOWEVER, THE ASSESSING OFFI CER HAS NOT DISPOSED OF THE OBJECTIONS INDEPENDENTLY BY WAY OF SEPARATE ORDERS BEFORE COMPLETION OF ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) R/W 147 OF THE ACT. THE HON'BLE SUPREME COURT IN GKN DRIVESHAFTS INDIA LTD. (SUPRA) HAS HELD THAT BEFORE COMPLETION OF THE ASSESSMENT, THE ASSESSING OFFICER IS DUTY BOUND TO DISPOSE OF THE OBJECTIONS OF THE ASSESSEE SEPARATELY. THEREFORE, T HE ASSESSING OFFICER IN THE ITA NO.2043/MUM/201 MAHARASHTRA STATE POWER GENERATION CO. LTD. ASSESSMENT YEAR :2007-08 5 INSTANT APPEAL HAS NOT FOLLOWED THE DUE JUDICIAL PR OCESS WHILE DEALING WITH THE OBJECTIONS OF THE ASSESSEE. FOR THAT REASON, THE IM PUGNED ASSESSMENT ORDERS ARE LEGALLY UNSUSTAINABLE. NOW THE ISSUE WHICH ARISES I S, WHETHER IN SUCH CIRCUMSTANCES, THE REASSESSMENT ORDERS PASSED HAVE TO BE QUASHED AS VOID AB INITIO OR THEY ARE TO BE RESTORED BACK TO THE ASSES SING OFFICER FOR ENABLING HIM TO DISPOSE OF THE OBJECTIONS OF THE ASSESSEE AND PASS FRESH ASSESSMENT ORDERS. IN OUR VIEW, THE ISSUE IS NO MORE RES INTEGRA IN VIEW OF T HE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN KSS PETRON PVT. LTD. ( SUPRA), WHEREIN, THE HON'BLE JURISDICTIONAL HIGH COURT HAS HELD THAT IF THE REA SSESSMENT ORDER IS PASSED WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY THE ASSESSEE, THEY HAVE TO BE QUASHED AND NO SECOND OPPORTUNITY CAN BE GIVEN TO THE ASSESSING OF FICER TO PASS FRESH ASSESSMENT ORDERS AFTER DISPOSING OF THE OBJECTIONS OF THE ASS ESSEE. THE SAME VIEW HAS BEEN EXPRESSED BY THE COORDINATE BENCH IN THE DECISIONS CITED BY THE LEARNED SR. COUNSEL FOR THE ASSESSEE. UPON CAREFUL READING OF T HE DECISION OF THE HON'BLE SUPREME COURT IN LARSEN TOUBRO LTD. V/S STATE OF JH ARKHAND & ORS., IN CIVIL APPEAL NO.5390/2007, CITED BY LEARNED DEPARTMENTAL REPRESE NTATIVE, WE FIND IT TO BE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE, AS THE SAID DECISION IS NOT ON THE ISSUE OF VALIDITY OF RE ASSESSMENT ORDER ON ACCOUNT OF NON DISPOSAL OF OBJECTION RAISED BY THE ASSESSEE. IT IS RELEVANT TO OBSERVE, POST CONCL USION OF HEARING OF THE APPEAL, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED A NOTE CITING CERTAIN DECISIONS IN SUPPORT OF THE PROPOSITION THAT NON DISPOSAL OF OBJECTION IS A PROCEDURAL IRREGULARITY, HENCE, THE ASSESSMENT ORDER SHOULD BE SET ASIDE FOR ENABLING THE ASSESSING OFFICER TO DISPOSE OF THE OBJECTIONS AND PASS A FRESH ASSESSMENT ORDER. THE FIRST DECISION RELIED UPON BY THE LEARNED DEPAR TMENTAL REPRESENTATIVE IS, HOME FINDERS HOUSING LTD. V/S ITO, [2018] 94 TAXMANN.COM 84 (SC). THIS IS A MATTER ARISING OUT OF A JUDGMENT DELIVERED BY THE HONBLE MADRAS HIGH COURT HOLDING THAT NONDISPOSAL OF OBJECTION BEFORE COMPLETION OF ASSE SSMENT IS A PROCEDURAL IRREGULARITY WHICH CAN BE CURED BY SETTING ASIDE TH E ASSESSMENT ORDER TO THE ASSESSING OFFICER FOR DISPOSING OF ASSESSEES OBJEC TION AND THEREAFTER COMPLETING THE ASSESSMENT. AGAINST THE AFORESAID DECISION OF T HE HONBLE MADRAS HIGH COURT, THE ASSESSEE FILED A SPECIAL LEAVE PETITION (SLP) B EFORE THE HON'BLE SUPREME COURT. THE HON'BLE SUPREME COURT IN THE DECISION CI TED SUPRA, DISMISSED THE SLP IN LIMINE WITHOUT LAYING DOWN ANY RATIO. THE ORDER PAS SED BY THE HONBLE SUPREME COURT IS AS UNDER:- THE SPECIAL LEAVE PETITION IS DISMISSED. PENDING APPLICATION STANDS DISPOSED OF. 8. IT IS A FAIRLY WELL SETTLED LEGAL POSITION THAT DISMISSAL OF SLP IN LIMINE AT THE STAGE OF ADMISSION WITHOUT A SPEAKING OR REASONED ORDER D OES NOT CONSTITUTE A BINDING PRECEDENT UNDER ARTICLE141 OF THE CONSTITUTION OF INDIA. THIS PRINCIPLE HAS BEEN WELL PROPOUNDED IN CASE OF KUNHAYAMMED VS. STATE OF KERA LA 2001(129) ELT 11 (S.C.). AFORESAID VIEW WAS AGAIN AFFIRMED BY THE HONBLE SU PREME COURT IN CASE OF KHODAY DISTILLERIES LTD. VS. SHREE MAHADESHWARA SAHAKARA S AKKARE KARKHANE LTD. WHILE DISPOSING OF CIVIL APPEAL NO.2432 OF 2019 IN JUDGME NT DATED. 01.03.2019. THEREFORE, IT CANNOT BE SAID THAT IN THE AFORESAID DECISION, T HE HON'BLE SUPREME COURT HAS LAID DOWN THE PROPOSITION THAT NONDISPOSAL OF OBJECTION S AGAINST THE VALIDITY OF PROCEEDINGS INITIATED UNDER SECTION 147 OF THE ACT IS A PROCEDURAL IRREGULARITY WHICH ITA NO.2043/MUM/201 MAHARASHTRA STATE POWER GENERATION CO. LTD. ASSESSMENT YEAR :2007-08 6 CAN BE CURED IF THE ASSESSING OFFICER IS GIVEN AN O PPORTUNITY TO DISPOSE OF THE OBJECTIONS OF THE ASSESSEE AND THEREAFTER COMPLETE THE ASSESSMENT. MOREOVER, THE DECISION OF THE HON'BLE SUPREME COURT IN GKN DRIVES HAFTS INDIA LTD. (SUPRA) HAS NOT BEEN OVERRULED AND STILL HOLDS THE FIELD. THE NEXT DECISION CITED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE IS OF THE HON'BLE JURIS DICTIONAL HIGH COURT IN NTUC INCOME INSURANCE COOPERATIVE LTD. V/S DDIT, [2013] 33 TAXMANN.COM 255 (BOM.). ON A CAREFUL READING OF THE AFORESAID DECISION, IT IS EVIDENT THAT THE FACTS ON THE BASIS OF WHICH THE HON'BLE JURISDICTIONAL HIGH COUR T RESTORED BACK THE ISSUE TO THE ASSESSING OFFICER TO REFRAME ASSESSMENT DE NOVO IS COMPLETELY DIFFERENT FROM THE PRESENT APPEAL. IN THE CASE BEFORE THE HON'BLE JURI SDICTIONAL HIGH COURT, THE ASSESSING OFFICER HAD NOT ONLY COMMUNICATED THE REA SONS FOR REOPENING, BUT, BY A SEPARATE COMMUNICATION HAD INTIMATED THE ASSESSEE T HAT ALL CONDITIONS LAID DOWN IN GKN DRIVESHAFTS INDIA LTD. HAS BEEN MET. ADMITTEDLY , THE ASSESSEE DID NOT CHALLENGE THE AFORESAID DECISION OF ASSESSING OFFIC ER. SUBSEQUENTLY, THE REASSESSMENT ORDER WAS SUBJECTED TO THE PROCEEDINGS UNDER SECTION 263 OF THE ACT. IN OF REVISION PROCEEDING THE ASSESSEE CONTENDED TH AT DUE TO LACK OF OPPORTUNITY VARIOUS DOCUMENTS/EVIDENCES COULD NOT BE PRODUCED B EFORE THE ASSESSING OFFICER. CONSIDERING THE AFORESAID SUBMISSION OF THE ASSESSE E, THE COMMISSIONER SET ASIDE THE ASSESSMENT ORDER WITH A DIRECTION TO FRAME DE N OVO ASSESSMENT. DURING THE FRESH ASSESSMENT PROCEEDING ASSESSEE PLEADED THAT T HE OBJECTION AGAINST REOPENING OF ASSESSMENT SHOULD BE DISPOSED OF FIRST . IN THE AFORESAID FACTUAL CONTEXT, THE HON'BLE JURISDICTIONAL HIGH COURT DID NOT ENTERTAIN ASSESSEES PLEA. HOWEVER, THE HON'BLE JURISDICTIONAL HIGH COURT IN K SS PETRON PVT. LTD. (SUPRA), IN NO UNCERTAIN TERMS, HAS HELD THAT IF THE ASSESSING OFF ICER BEFORE COMPLETION OF ASSESSMENT HAS NOT DISPOSED OF THE OBJECTION, THE A SSESSMENT ORDER CANNOT BE RESTORED BACK TO THE ASSESSING OFFICER FOR FRAMING ASSESSMENT DE NOVO AFTER DISPOSAL OF THE OBJECTIONS OF THE ASSESSEE. THOUGH, THE HON'BLE MADRAS HIGH COURT IN CASE OF HOME FINDERS HOUSING LTD. REFERRED TO EA RLIER AS WELL AS THE HON'BLE GUJARAT HIGH COURT IN MGM EXPORTS V/S DCIT, [2010] 323 ITR 33 (GUJ.) AND PCIT V/S SAGAR DEVELOPERS, [2016] 72 TAXMANN.COM 321 (GUJ.) HAVE HELD CONTRARY VIEW, HOWEVER, WE ARE BOUND BY THE DECISION OF THE HON'BL E JURISDICTIONAL HIGH COURT IN KSS PETRON PVT. LTD. (SUPRA). 9. IN VIEW OF THE AFORESAID, WE DO NOT FIND ANY INF IRMITY IN THE ORDERS PASSED BY LEARNED COMMISSIONER (APPEALS) IN HOLDING THE ASSES SMENT ORDERS PASSED TO BE LEGALLY UNSUSTAINABLE. ACCORDINGLY, GROUNDS RAISED IN BOTH THE APPEALS ARE DISMISSED. RESPECTFULLY FOLLOWING THE CITED BINDING JUDICIAL P RECEDENTS, THE ACTION OF LD. FIRST APPELLATE AUTHORITY IN UPHOLDING THE REAS SESSMENT PROCEEDINGS, COULD NOT BE SAID TO BE IN ACCORDANCE WITH LAW. THE REFORE, WE QUASH THE REASSESSMENT ORDER DATED 29/12/2009 PASSED BY LD. A SSESSING OFFICER. IN VIEW OF THE SAME, DEALING INTO THE MERITS OF THE CASE BECOME MERELY ITA NO.2043/MUM/201 MAHARASHTRA STATE POWER GENERATION CO. LTD. ASSESSMENT YEAR :2007-08 7 ACADEMIC IN NATURE AND THEREFORE, WE REFRAIN FROM D EALING THE SAME. GROUND NO. 1 STANDS ALLOWED WHICH MAKES OTHER GROUN DS OF APPEAL INFRUCTUOUS. 5. THE APPEAL STANDS ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 2019. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 31/07/2019 SR.PS, JAISY VARGHESE $%&'(' / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%'# / THE RESPONDENT 3. , ( ) / THE CIT(A) 4. , / CIT CONCERNED 5. -. $'/ , / , / DR, ITAT, MUMBAI 6. .012 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.