M/s. Aamrapali Buildtech Pvt Ltd., Lucknow V. DCIT, Lucknow

ITA 208/LKW/2011

• Counselvise Citation: 20823714 RSA 2011
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 21-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Assessee Lawyers: M P MISHRA; SHAILENDRA MISHRA
• Keywords: Value adopted by valuation officer; Valuation report; Reason to believe
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B - BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NO.208(LKW.)/2011 A.Y.: 2005-06 M/S.AAMRAPALI BUILDTECH (P.) LTD., VS. THE DY.CIT, RANGE IV, 569/K/20/1, SNEH NAGAR, LUCKNOW. ALAMBAGH, LUCKNOW. PAN AAGCA6842F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.P.MISHRA, ADVOCATE & SHRI SHAILENDRA MISHRA, ADVOCATE RESPONDENT BY : SHRI P.K.BAJAJ, SR.D.R. DATE OF HEARING :18.8.2011 DATE OF PRONOUNCEMENT : 18.8.2011 O R D E R PER H.L.KARWA, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A)-II, LUCKNOW DATED 7.1.2011 RELATING TO THE ASSESSMENT YEAR 2005- 06. 2. IN THIS CASE, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. THAT THE LEARNED C.I.T.(APPEALS) HAS ERRED IN LAW AND ON FACTS IN FAILING TO QUASH THE ILLEGAL ASSESSMENT ORDER DATED 16-12- 2009 PASSED U/S 143(3) OF THE I.T.ACT,1961 BY THE ASSESSING 2 OFFICER, WHICH WAS BAD IN LAW SINCE NO RETURN IN RESPONSE TO NOTICE U/S 148 OF THE I.T. ACT, 1961, WAS FILED BY THE ASSESSEE. 2. THAT THE LEARNED C.I.T.(APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION U/S 147/148 OF THE I.T.1961, WHICH WAS SOLELY BASED ON THE DVO'S REPORT. 3. THAT THE LEARNED C.I.T.(APPEALS) HAS ERRED IN LAW AND ON FACTS IN FAILING TO APPRECIATE THAT THERE IS NO PROVISION IN THE INCOME- TAX ACT,1961 FOR FRAMING ASSESSMENT PROVISIONALLY AND REOPENING U/S 147 ON RECEIPT OF REPORT FROM DVO . 4. THAT THE LEARNED C.I.T.( APPEALS) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ILLEGAL ADDITION OF RS.32,15,470/- WHICH WAS MADE BY THE A.O. WITHOUT EXAMINING THE AUDITED BOOKS OF ACCOUNT AND VOUCHERS MAINTAINED BY THE ASSEESEE IN RESPECT OF THE INVESTMENT MADE IN THE CONSTRUCTION OF THE BUILDING WHICH WAS COMPLETED IN A.Y.1997-98 AND DULY CONSIDERED IN THE RELEVANT ASSESSMENT ORDER U/S 143(3) OF THE I.T.ACT, 1961 DATED 14-03-2000 AND ONLY SOME ADDITIONAL WORK WAS DONE THEREAFTER. 5. THAT THE APPELLANT CRAVES PERMISSION FOR AMENDING THE AFORESAID GROUNDS OF APPEAL AND/OR RAISING FRESH GROUNDS OF APPEAL. 3. FIRSTLY, WE WILL DECIDE GROUNDS NO.2 AND 3 OF THE APPEAL, WHICH GO TO THE ROOT OF THE MATTER. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 31.10.2005 DECLARING TOTAL INCOME AT RS.27,640. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961(IN SHORT THE ACT) ON 28.12.2007 AT THE TOTAL INCOME OF RS.17,60,525 PROVISIONALLY WITH THE REMARKS THE PROPERTY PERTAINING TO THE ASSESSEE SITUATED AT THE PREMISES AT HOTEL ADHARSHILA AND 3 DHARATAL RESTAURANT AT VIP ROAD, SNEH NAGAR, LUCKNOW HAS BEEN REFERRED U/S 142A OF THE I.T.ACT TO THE DVO, KANPUR FOR VALUATION OF THE SAID PROPERTY. ASSESSEE IN ITS VALUATION REPORT HAS VALUED THE SAID PROPERTY AS ON 31.3.2005 AT RS.57,37,144. THE VALUATION REPORT OF THE DEPARTMENTAL VALUATION OFFICER HAS YET NOT BEEN RECEIVED. HENCE, THIS ASSESSMENT IS FRAMED PROVISIONALLY AND WOULD BE RE-ASSESSED AFTER THE RECEIPT OF THE VALUATION REPORT FROM DVO, KANPUR. THE REPORT OF THE DVO DATED 26.11.2008 WAS RECEIVED ON 1.12.2008. AS THERE WAS DIFFERENCE OF RS.32,15,470 IN THE COST OF CONSTRUCTION, THE ASSESSMENT WAS RE-OPENED UNDER SECTION 147 BY ISSUANCE OF NOTICE UNDER SECTION 148 ON 27.3.2009 REQUIRING THE ASSESSEE TO FURNISH THE RETURN OF INCOME WITHIN 30 DAYS FROM THE SERVICE OF THE NOTICE. NOTICES UNDER SECTION 143(2)/142(1) WERE ALSO ISSUED TO THE ASSESSEE. THE ASSESSMENT WAS COMPLETED ON 16.12.2009 AT THE TOTAL INCOME OF RS.34,15,180 BY ADDING OF RS.32,15,470. 5. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A). HOWEVER, THE LD.CIT(A) VIDE HIS ORDER DATED 7.1.2011 DISMISSED THE APPEAL OF THE ASSESSEE, AND HENCE, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. BEFORE US SHRI M.P.MISHRA, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD MAINTAINED REGULAR BOOKS OF ACCOUNT IN WHICH THE INVESTMENT MADE IN THE CONSTRUCTION OF HOTEL AND RESTAURANT BUILDING HAD BEEN FULLY RECORDED. IT WAS ALSO SUBMITTED BY SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE THAT MOST OF THE CONSTRUCTION WORK WAS COMPLETED BY THE END OF FINANCIAL YEAR 1996-97 AND THE INVESTMENT MADE WAS DISCLOSED AND VALUATION REPORT FURNISHED BY THE 4 ASSESSEE HAS BEEN DULY CONSIDERED BY THE AO WHILE MAKING THE ASSESSMENT FOR ASSESSMENT YEAR 1997-98 UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 24.3.2000. IT WAS ALSO SUBMITTED BY SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE THAT DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION (I.E. FINANCIAL YEAR 2004-2005) FINISHING, FLOORING ETC. AND PARTITION WORK IN SOME WALLS HAS BEEN DONE, IN WHICH TOTAL EXPENDITURE OF RS.11,05,430 ONLY HAS BEEN MADE AS PER BOOKS OF ACCOUNT. SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2005-06, THE ASSESSEE HAS FURNISHED THE VALUATION REPORT IN WHICH THE TOTAL INVESTMENT IN CONSTRUCTION OF HOTEL ADHARSHILA AND DHARATAL RESTAURANT WAS VALUED AT RS.57,37,144 AS ON 31.3.2005. THE AFORESAID VALUATION REPORT HAS BEEN DULY CONSIDERED BY THE AO WHILE PASSING THE ORIGINAL ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT DATED 28.12.2007, BUT IN THE MEANTIME, THE AO HAS ARBITRARILY MADE REFERENCE UNDER SECTION 142A OF THE ACT TO THE DISTRICT VALUATION OFFICER, KANPUR VIDE LETTER DATED 20.3.2007. THE DVO HAS INSPECTED THE PROPERTY ON 4.11.2007 AND FURNISHED THE REQUISITE REPORT DATED 26.11.2008, WHICH HAS BEEN RECEIVED BY THE AO ON 1.12.2008. SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON RECEIPT OF THE AFOREMENTIONED VALUATION REPORT FROM THE DVO ON 1.12.2008, THE AO HAS MECHANICALLY ISSUED NOTICE UNDER SECTION 148 OF THE ACT. IN THIS REGARD, SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO HAS NOT APPLIED HER OWN MIND TO THE FACTS OF THE CASE AND HAS NOT RECORDED HER OWN REASON. IT IS ALSO SUBMITTED BY SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE THAT THE AO PASSED THE ASSESSMENT ORDER ON 16.12.2009 AND COMPUTED THE TOTAL INCOME OF THE ASSESSEE AS UNDER : 5 INCOME AS PER ORDER U/S 251/143(3) RS.1,99,714 ADDITION AS DISCUSSED IN PARA 4 ABOVE RS.32,15,470 RS.34,15,184 OR RS.35,15,180 6.1 SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ABOVE ORDER OF THE AO WAS CHALLENGED IN APPEAL BEFORE THE LD.CIT(A) AND THE LD.CIT(A) VIDE IMPUGNED ORDER DATED 7.1.2011 DISMISSED THE APPEAL OF THE ASSESSEE. 6.2 SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURING THE COURSE ORF ASSESSMENT PROCEEDINGS, THE ASSESSEE FILED A LETTER ALONGWITH THE DETAILS OF CONSTRUCTION AND IN THE LAST SENTENCE OF THE AFORESAID LETTER IT WAS SUBMITTED THAT THERE ARE NUMEROUS JUDGMENTS IN WHICH IT IS HELD THAT NO CASE SHALL BE REOPENED U/S 147/148 ON THE BASIS OF VALUATION REPORT ONLY. RELIANCE WAS PLACED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. DHARIYA CONSTRUCTION CO. (2010) 328 ITR 515(SC). SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE POINTED THAT THE AFORESAID JUDGMENT OF THE HON'BLE SUPREME COURT HAS BEEN FOLLOWED BY THE I.T.A.T.,B-BENCH, LUCKNOW IN THE CASE OF PAWAN KUMAR AGARWAL VS. ITO, RANGE IV(1), LUCKNOW (ITA NO.16(LKW)/2011). RELYING ON THE ABOVE DECISION OF THE TRIBUNAL, SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REASONS RECORDED WOULD REVEAL THAT THE INSTANT CASE IS COVERED BY THE AFOREMENTIONED DECISION SINCE THE AO HAS NOT APPLIED HER MIND TO THE FACTS OF THE CASE AND HAS ISSUED NOTICE U/S 148 OF THE ACT, SOLELY ON THE BASIS OF DVOS REPORT. SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ABOVE DECISIONS ARE SQUARELY APPLICABLE TO THE 6 FACTS OF THE PRESENT CASE AND THEREFORE, THE IMPUGNED ASSESSMENT ORDER MAY BE QUASHED. 6.3 AS REGARDS GROUND NO.3, SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO PROVISION IN THE INCOME-TAX ACT FOR FRAMING THE ASSESSMENT PROVISIONALLY AND RE-OPENING UNDER SECTION 147 ON RECEIPT OF REPORT FROM THE DVO. SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT PRESENTLY THERE IS NO MENTION OF PROVISIONAL ASSESSMENT IN THE INCOME-TAX ACT,1961 AND SECTION 141 OF THE ACT EMPOWERING THE INCOME-TAX OFFICER TO MAKE IN A SUMMARY MANNER, A PROVISIONAL ASSESSMENT OF THE TAX PAYABLE BY THE ASSESSEE ON THE BASIS OF HIS RETURN AND THE ACCOUNTS AND DOCUMENTS, IF ANY, ACCOMPANYING IT, HAS BEEN OMITTED BY THE TAXATION LAS (AMENDMENT) ACT, 1970 WITH EFFECT FROM 1.4.1971. IN VIEW OF THE ABOVE, SHRI M.P.MISHRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE RE-ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER OF THE LD.CIT(A) ARE LIABLE TO BE ANNULLED. 7. SHRI P.K.BAJAJ, LD.SR.D.R. HEAVILY RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALSO PERUSED THE MATERIALS AVAILABLE ON RECORD. REASONS FOR RE-OPENING THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2005-06 READ AS UNDER : THE ASSESSMENT IN THIS CASE WAS MADE U/S 143(3) ON 28-12-2007 FOR A.Y.2005-06 AT AN INCOME OF RS.17,60,525. DURING THE ASSESSMENT PROCEEDINGS THE PROPERLY PERTAINING TO THE ASSESSEE SITUATED AT THE PREMISES AT HOTEL ADHARSHILA AND DHARATAL RESTAURANT AT VIP ROAD, 7 SNEH NAGAR, LUCKNOW WAS REFERRED UNDER SECTION 142A OF I.T.ACT TO THE DISTT, VALUATION OFFICER, KANPUR ROAD FOR VALUATION OF THE SAID PROPERTY AS THE ASSESSEE IN ITS VALUATION REPORT HAS VALUED THE SAID PROPERTY AS ON 31-03-2005 AT RS.57,37,144/-. THE VALUATION REPORT OF THE DVO WAS NOT RECEIVED AT THE TIME OF FRAMING ASSESSMENT . HENCE, THE ASSESSMENT WAS MADE PROVISIONALLY BY MAKING ON OFFICE NOTE THAT- 'THE ASSESSMENT HAS BEEN PROVISIONALLY PASSED AS THE VALUATION REPORT OF THE PROPERTY HAS NOT BEEN RECEIVED FROM THE D.V.O KANPUR IN SPITE OF SEVERAL REMINDERS. HOWEVER, IT MAY BE REASSESSED IF ANY DIFFERENCE IS DETECTED BETWEEN VALUATION REPORT OF D.V.O & OF THE ASSESSEE.' NOW, THE DISTT. VALUATION OFFICER VIDE HIS LETTER F.NO.1283/DVO/ITD/KNP/08-09/221 DTD.26-11-2008 HAS GIVEN HIS REPORT AND VALUED THE COST OF CONSTRUCTION AT RS.2,24,25,100 WHILE THE ASSESSEE HAS VALUED THE COST OF CONSTRUCTION SHOWN IN ITS VALUATION REPORT AS ON 31-03-2005 AT RS.57,37,144 WHICH RESULTED A HUGE DIFFERENCE I.E. L,66,87,855. YEARWISE BREAKUP OF CONSTRUCTION INVESTMENT DECLARED BY ASSESSEE VIS-A-VIS ESTIMATED COST OF CONSTRUCTION BY DVO IS AS FOLLOWS- FINANCIAL YEAR DECLARED INVESTMENT BY THE ASSESSEE ESTIMATED COST OF CONSTRUCTION 1 2 3 1998-99 RS.46,31,715 RS.1,81,04,200 99-2000 - 2000-01 - - 2001-02 - - 2002-03 - - 2003-04 - - 2004-05 RS.11,05,430 RS.43,20,900 RS.57,37,145 RS.2,24,25,100 AS PER DVO REPORT COST OF CONSTRUCTION FOR A.Y.2005-06 WAS AT RS.43,20,900 WHEREAS ASSESSEE HAD SHOWN COST OF CONSTRUCTION ONLY AT RS.11,05,430 WHICH RESULTED IN DIFFERENCE OF RS.32,15,470/-. ASSESSEE HAS NOT FURNISHED ANY MATERIAL TO SUBSTANTIATE ITS COST OF CONSTRUCTION . IN VIEW OF 8 THIS, I HAVE REASON TO BELIEVE THAT INCOME OF RS.32,15,470/- HAVE ESCAPED ASSESSMENT AND IT IS FIT CASE FOR ISSUE OF NOTICE U/S 148. ENCL: CASE RECORDS IN ONE VOLUME. SD. PUJA RAJ ASSTT. COMMISSIONER OF INCOME-TAX, RANGE-IV, LUCKNOW. 8.1 IN OUR OPINION, RE-OPENING OF ASSESSMENT ON THE BASIS OF REPORT OF THE VALUATION OFFICER DETERMINING COST OF CONSTRUCTO0IN AT A FIGURE HIGHER THAN THAT WHICH WAS DISCLOSED BY THE ASSESSEE IS NOT JUSTIFIED. IN THE CASE OF ACIT VS. DHARIYA CONSTRUCTION CO.(2010) 328 ITR 515(SC) HELD AS UNDER : HAVING EXAMINED THE RECORD, WE FIND THAT IN THIS CASE, THE DEPARTMENT SOUGHT REOPENING OF THE ASSESSMENT BASED ON THE OPINION GIVEN BY THE DISTRICT VALUATION OFFICER (DVO). THE OPINION OF THE DVO PER SE IS NOT AN INFORMATION FOR THE PURPOSES OF REOPENING ASSESSMENT UNDER SECTION 147 OF THE INCOME-TAX ACT, 1961. THE ASSESSING OFFICER HAS TO APPLY HIS MIND TO THE INFORMATION, IF ANY, COLLECTED AND MUST FORM A BELIEF THEREON. IN THE CIRCUMSTANCES, THERE IS NO MERIT IN THE CIVIL APPEAL. THE DEPARTMENT WAS NOT ENTITLED TO REOPEN THE ASSESSMENT. CIVIL APPEAL IS, ACCORDINGLY, DISMISSED. NO ORDER AS TO COSTS. 8.2 FROM THE REASONS RECORDED BY THE AO FOR REOPENING, IT IS AMPLY CLEAR THAT THE AO HAS NOT APPLIED HER MIND. THE NOTICE UNDER SECTION 148 WAS ISSUED SOLELY ON THE BASIS OF THE REPORT OF THE DVO. IN OUR VIEW, THE OPINION OF THE DVO PER SE IS NOT AN INFORMATION FOR THE PURPOSES OF REOPENING ASSESSMENT UNDER SECTION 147 OF THE ACT. IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF DHARIYA CONSTRUCTION CO.(SUPRA), RE- ASSESSMENT FRAMED BY THE AO DESERVES TO BE ANNULLED BECAUSE THE RATIO LAID 9 DOWN BY THE HON'BLE SUPREME COURT IN THE ABOVE CASE IS SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN THE INSTANT CASE, THE AO HAS RE- OPENED THE ASSESSMENT SOLELY ON THE BASIS OF THE REPORT OF THE DVO. NO OTHER MATERIAL WAS AVAILABLE WITH THE AO TO DRAW A CONCLUSION THAT THE ASSESSEE HAS SHOWN LESSER VALUE OF CONSTRUCTION. IT IS ALSO SETTLED LAW THAT REPORT OF THE VALUATION OFFICER IS AN INFORMATION AND IT MAY CREATE SUSPICION AND DOUBT. THUS, RE-ASSESSMENT MADE SOLELY ON THE BASIS OF THE DVOS REPORT IS NOT TENABLE IN LAW. 8.3 EVEN THE REFERENCE MADE BY THE AO TO THE DVO IS NOT VALID, BECAUSE THE AO HAS NOT REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE IN WHICH THE INVESTMENT MADE IN THE CONSTRUCTION OF HOTEL AND RESTAURANT BUILDING HAS BEEN DULY RECORDED. IN THE INSTANT CASE, IT IS CLEAR THAT MOST OF THE CONSTRUCTION WORK WAS COMPLETED BY THE END OF FINANCIAL YEAR 1996-97 AND THE INVESTMENT MADE WAS DISCLOSED AND VALUATION REPORT FURNISHED BY THE ASSESSEE HAS BEEN DULY CONSIDERED BY THE AO WHILE MAKING THE ASSESSMENT FOR ASSESSMENT YEAR 1997-98 UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 24.3.2000. WE ALSO FIND THAT DURING THE PREVIOUS YEAR UNDER CONSIDERATION (I.E. 2004-05) FINISHING, FLOORING ETC. AND PARTITION WORK OF SOME WALLS WAS DONE IN WHICH TOTAL EXPENDITURE OF RS.11,05,430 ONLY HAS BEEN MADE AS PER BOOKS OF ACCOUNT. IN SUPPORT OF THIS INVESTMENT, THE ASSESSEE HAS FURNISHED THE VALUATION REPORT IN WHICH THE TOTAL INVESTMENT IN CONSTRUCTION OF HOTEL ADHARSHILA AND DHARATAL RESTAURANT WAS VALUED AT RS.57,37,144 AS ON 31.3.2005. THE AFORESAID VALUATION REPORT HAS BEEN DULY CONSIDERED BY THE AO WHILE PASSING THE ORIGINAL ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT DATED 28.12.2007. IN OUR OPINION, EVEN THE REFERENCE TO THE DVO WAS INVALID WITHOUT REJECTING THE BOOKS OF ACCOUNT 10 REGULARLY MAINTAINED BY THE ASSESSEE WITH REGARD TO INVESTMENT MADE IN THE CONSTRUCTION OF HOTEL AND RESTAURANT BUILDING. THE VIEW EXPRESSED BY US IS DULY SUPPORTED BY THE RECENT DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF SARGAM CINEMA VS. CIT (2010) 328 ITR 513 (S.C.). VIEWED FROM ANY ANGLE, THE ASSESSMENT ORDER AS WELL AS THE IMPUGNED ORDER OF THE LD.CIT(A) ARE NOT TENABLE, AND WE, THEREFORE, SET ASIDE THE ORDER OF THE LD.CIT(A) AND ALSO ANNUL THE RE-ASSESSMENT ORDER DATED 16.12.2009 FRAMED BY THE AO. 8.4 SINCE WE HAVE SET ASIDE THE ORDER OF THE LD.CIT(A) AND ALSO ANNULLED THE RE-ASSESSMENT ORDER, WE TO NOT THINK IT NECESSARY TO DECIDE THE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE. 9. IN THE RESULT, THE APPEAL IS ALLOWED IN THE TERMS AS INDICATED ABOVE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 18.8.2011. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT AUGUST 18TH , 2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.