Debottor Trust Estate of Rammohan Mullick, Kolkata V. ITO, Ward - 43(4), Kolkata, Kolkata

ITA 217/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9613 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-12-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 15-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PINAKI MUKHERJEE JCITSRDR
• Assessee Lawyers: B CHAKRABORTY
• Keywords: Rectification of order; Tangible material; Reason to believe
• Section: 12A; 147; 148; 263; 154; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI A.T.VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 215 - 218 / KOL / 2016 ASSESSMENT YEARS :2001-02 TO 2004-05 DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK KOLKATA, 39, JATINDRA MOHAN AVENUE, KOLKATA-700 005 [ PAN NO.AAATD 5679 A ] V/S . INCOME TAX OFFICER, WARD-43(4), 3, GOVERNMENT PLACE, GROUND FLOOR, KOLKATA-700 001 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI B. CHAKRABORTY, AR /BY REVENUE SHRI PINAKI MUKHERJEE, JCIT-SR-DR /DATE OF HEARING 08-12-2016 ! /DATE OF PRONOUNCEMENT 11-01-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THESE FOUR APPEALS BY SAME ASSESSEE ARE AGAINST TH E DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-13, KOLKATA BY EVEN DATED I.E. 30.11.2015. ASSESSMENTS WERE FRAMED BY ITO WARD-43( 4), KOLKATA U/S 143(3)/147) OF THE INCOME TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS THE ACT) VIDE THEIR ORDERS DATED 30.12.2008, 31.12.2009 FOR ASSESSMENT YEARS 2001-02 TO 2004-05 RESPECTIVELY. ITA NO.215-18/KOL/2016 A.YS. 01-02 TO 04-0 5 DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK VS. ITO WD-43(4) KOL. PAGE 2 SHRI B. CHAKRABORTY, LD. AUTHORIZED REPRESENTATIVE APPEARED ON BEHALF OF ASSESSEE AND SHRI PINAKI MAKHERJEE, LD. DEPARTMENTA L REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. 2. ALL THE APPEALS ARE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. FIRST WE TAKE UP ITA NO.215/KOL/2016 FOR AY 2001-02 . 3. THE FIRST ISSUE RAISED BY THE ASSESSEE IN THIS A PPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF AO BY HOLDING THE ASSESSMENT UNDER SECTION 147 OF THE ACT AS VALID. 4. AT THE OUTSET THE LD. AR APPEARING FOR ASSESSEE HAS CHALLENGED THE ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT ON THE GR OUND THAT THE CONDITIONS FOR INITIATING PROCEEDINGS UNDER THE ACT HAVE NOT B EEN COMPLIED WITH. THE LD. AR BEFORE US SUBMITTED THAT PROCEEDINGS UNDER SECTI ON WERE INITIATED ON ACCOUNT OF TWO REASONS AS DISCUSSED BELOW : 1. THE AO OBSERVED THAT THE ASSESSEE HAS CLAIMED EX EMPTION UNDER SECTION 11 OF THE ACT WITHOUT HAVING VALID REGISTRA TION UNDER SECTION 12A OF THE ACT. 2. THE AO ALSO OBSERVED THAT THE ASSESSEE HAS CLAIM ED PERSONAL EXPENSES AGAINST THE INCOME OF OTHER SOURCES WHICH ARE NOT ALLOWABLE UNDER SECTION 57 OF THE ACT. HOWEVER IT WAS SUBMITTED THAT THE TRUST IS NOT REGI STERED UNDER SECTION 12A OF THE ACT AND CONSEQUENTLY THERE IS NO QUESTION FOR C LAIMING THE EXEMPTION UNDER SECTION 11 OF THE ACT. THEREFORE THE OBSERVAT ION OF THE AO FOR REOPENING THE CASE U/S 147 OF THE ACT THAT THE ASSESSEE HAS C LAIMED EXEMPTION U/S 11 OF THE ACT IS BASED ON HIS SURMISE, CONJECTURE. ACCORD INGLY, THE ASSESSMENT IS LIABLE TO BE QUASHED. SIMILARLY, THE AO INITIATED T HE PROCEEDINGS U/S 147 OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS CLAIMED PER SONAL EXPENSES AGAINST THE INCOME OF OTHER SOURCES WHICH ARE NOT ALLOWABLE U/S57 OF THE ACT. ITA NO.215-18/KOL/2016 A.YS. 01-02 TO 04-0 5 DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK VS. ITO WD-43(4) KOL. PAGE 3 HOWEVER THE FACT IS THAT NO EXPENDITURE OF WHATSOEV ER WAS CLAIMED BY THE ASSESSEE IN ITS INCOME TAX RETURN. THE ASSESSEE HAS JUST SHOWN THE TDS DEDUCTED IN THE NAME OF THE ASSESSEE IN ITS RETURN WHICH IS PLACED ON PAGE 60 OF THE PAPER BOOK WITH SOLE PURPOSE OF CLAIMING THE REFUND OF THE TDS. EVEN THE INCOME CORRESPONDING TO TDS WAS NOT SHOWN IN TH E INCOME TAX RETURN FILED BY THE ASSESSEE. IN THIS REGARD THE LD. AR FURTHER SUBMITTED THAT THE INCOME CORRESPONDING TO TDS WAS DULY SHOWN IN THE HANDS OF 9 DEITIES/IDOLS RETURN WHICH ARE PLACED ON PAGES 51 TO 69 OF THE PAPER BOO K. ON THE OTHER HAND THE LD. DR VEHEMENTLY SUPPORTED T HE ORDER OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS WELL SETTLED IN LAW THAT REASONS, AS RECORDED FOR REOPENING THE REASSESSMENT, ARE TO BE EXAMINED ON A STANDALONE BASIS. NOTHING CAN NEITHER BE ADDED TO THE REASONS SO RECO RDED NOR ANYTHING CAN BE DELETED FROM THE REASONS SO RECORDED. THE HON'BLE B OMBAY HIGH COURT, IN THE CASE OF HINDUSTAN LEVER LTD. VS. R.B. WADKAR [(2004 ) 268 ITR 332], HAS, INTER ALIA, OBSERVED THAT : '..........IT IS NEEDLESS TO MENTION THAT THE REASO NS ARE REQUIRED TO BE READ AS THEY WERE RECORDED BY THE AO. NO SUBSTITUTION OR DE LETION IS PERMISSIBLE. NO ADDITIONS CAN BE MADE TO THOSE REASONS. NO INFERENC E CAN BE ALLOWED TO BE DRAWN ON THE BASIS OF REASONS NOT RECORDED. IT IS F OR THE AO TO DISCLOSE AND OPEN HIS MIND THROUGH THE REASONS RECORDED BY HIM. HE HAS TO SPEAK THROUGH THE REASONS.' THEIR LORDSHIPS ADDED THAT 'THE REASO NS RECORDED SHOULD BE SELF-EXPLANATORY AND SHOULD NOT KEEP THE ASSESSEE G UESSING FOR REASONS. REASONS PROVIDE LINK BETWEEN CONCLUSION AND THE EVI DENCE....'. THEREFORE, THE REASONS ARE TO BE EXAMINED ONLY ON T HE BASIS OF THE REASONS AS RECORDED. 6 THE NEXT IMPORTANT POINT IS THAT EVEN THOUGH REAS ONS, AS RECORDED, MAY NOT NECESSARILY PROVE ESCAPEMENT OF INCOME AT THE S TAGE OF RECORDING THE REASONS, SUCH REASONS MUST POINT OUT TO AN INCOME E SCAPING ASSESSMENT AND NOT MERELY NEED OF AN INQUIRY WHICH MAY RESULT IN D ETECTION OF AN INCOME ITA NO.215-18/KOL/2016 A.YS. 01-02 TO 04-0 5 DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK VS. ITO WD-43(4) KOL. PAGE 4 ESCAPING ASSESSMENT. UNDOUBTEDLY, AT THE STAGE OF R ECORDING THE REASONS FOR REOPENING THE ASSESSMENT ALL THAT IS NECESSARY IS T HE FORMATION OF PRIMA FACIE BELIEF THAT AN INCOME HAS ESCAPED THE ASSESSMENT AN D IT IS NOT NECESSARY THAT THE FACT OF INCOME HAVING ESCAPED ASSESSMENT IS PRO VED TO THE HILT. WHAT IS, HOWEVER, NECESSARY IS THAT THERE MUST BE SOMETHING WHICH INDICATES, EVEN IF NOT ESTABLISHES, THE ESCAPEMENT OF INCOME FROM ASSE SSMENT. IT IS ONLY ON THIS BASIS THAT THE ASSESSING OFFICER CAN FORM THE BELIE F THAT AN INCOME HAS ESCAPED ASSESSMENT. MERELY BECAUSE SOME FURTHER INV ESTIGATIONS HAVE NOT BEEN CARRIED OUT, WHICH, IF MADE, COULD HAVE LED TO DETECTION TO AN INCOME ESCAPING ASSESSMENT, CANNOT BE REASON ENOUGH TO HOL D THE VIEW THAT INCOME HAS ESCAPED ASSESSMENT. IT IS ALSO IMPORTANT TO BEA R IN MIND THE SUBTLE BUT IMPORTANT DISTINCTION BETWEEN FACTORS WHICH INDICAT E AN INCOME ESCAPING THE ASSESSMENTS AND THE FACTORS WHICH INDICATE A LEGITI MATE SUSPICION ABOUT INCOME ESCAPING THE ASSESSMENT. THE FORMER CATEGORY CONSISTS OF THE FACTS WHICH, IF ESTABLISHED TO BE CORRECT, WILL HAVE A CA USE AND EFFECT RELATIONSHIP WITH THE INCOME ESCAPING THE ASSESSMENT. THE LATTER CATEGORY CONSISTS OF THE FACTS, WHICH, IF ESTABLISHED TO BE CORRECT, COULD L EGITIMATELY LEAD TO FURTHER INQUIRIES WHICH MAY LEAD TO DETECTION OF AN INCOME WHICH HAS ESCAPED ASSESSMENT. THERE HAS TO BE SOME KIND OF A CAUSE AN D EFFECT RELATIONSHIP BETWEEN REASONS RECORDED AND THE INCOME ESCAPING AS SESSMENT. 6.1 WHILE DEALING WITH THIS ASPECT OF THE MATTER, I T IS USEFUL TO BEAR IN MIND THE OBSERVATIONS MADE BY HON'BLE SUPREME COURT IN T HE CASE OF ITO VS LAKHMANI MEWAL DAS [(1976) 103 ITR 437] THAT, '......THE REASONS FOR THE FORMATION OF THE BELIEF MUST HAVE RATIONAL CONNECTION WITH OR RELEVANT BEARING ON THE FORMATION OF THE BE LIEF. RATIONAL CONNECTION POSTULATES THAT THERE MUST BE A DIRECT NEXUS OR LIV E LINK BETWEEN THE MATERIAL COMING TO THE NOTICE OF THE ITO AND THE FORMATION O F THIS BELIEF THAT THERE HAS BEEN ESCAPEMENT OF THE INCOME OF THE ASSESSEE FROM ASSESSMENT IN THE PARTICULAR YEAR BECAUSE OF HIS FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. IT IS NO DOUBT TRUE THAT THE COURT CANNOT GO INTO SUFFICIENCY OR ADEQUACY OF THE MATERIAL AND SUBSTITUTE ITS OWN OPINION FOR THAT OF THE ITO ON THE POINT AS TO WHETHER ACTION SHOULD BE INITIATED FOR REOPEN ING ASSESSMENT. AT THE SAME TIME WE HAVE TO BEAR IN MIND THAT IT IS NOT AN Y AND EVERY MATERIAL, HOWSOEVER VAGUE AND INDEFINITE OR DISTANT, REMOTE A ND FARFETCHED, WHICH ITA NO.215-18/KOL/2016 A.YS. 01-02 TO 04-0 5 DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK VS. ITO WD-43(4) KOL. PAGE 5 WOULD WARRANT THE FORMATION OF THE BELIEF RELATING TO ESCAPEMENT OF THE INCOME OF THE ASSESSEE FROM ASSESSMENT.' 6.2 SIMILARLY IN CIT VS. KELVINATOR OF INDIA LTD REPORTED IN 320 ITR 561, THE FULL BENCH OF HON'BLE SUPREME COURT HELD AS UNDER : - 'IT IS A WELL SETTLED PRINCIPLE OF INTERPRETATION O F STATUTE THAT THE ENTIRE STATUTE SHOULD BE READ AS A WHOLE AND THE SAME HAS TO BE CO NSIDERED THEREAFTER CHAPTER BY CHAPTER AND THEN SECTION BY SECTION AND ULTIMATELY WORD BY WORD. IT IS NOT IN DISPUTE THAT THE ASSESSING OFFICER DOES N OT HAVE ANY JURISDICTION TO REVIEW HIS OWN ORDER. HIS JURISDICTION IS CONFINED ONLY TO RECTIFICATION OF MISTAKES AS CONTAINED IN SECTION 154 OF THE ACT. TH E POWER OF RECTIFICATION OF MISTAKE CONFERRED UPON THE INCOME-TAX OFFICER IS CI RCUMSCRIBED BY THE PROVISIONS OF SECTION 154 OF THE ACT. THE SAID POWE R CAN BE EXERCISED WHEN THE MISTAKE IS APPARENT. EVEN A MISTAKE CANNOT BE R ECTIFIED WHERE IT MAY BE A MERE POSSIBLE VIEW OR WHERE THE ISSUES ARE DEBATABL E. EVEN THE INCOME-TAX APPELLATE TRIBUNAL HAS LIMITED JURISDICTION UNDER S ECTION 254(2) OF THE ACT. THUS WHEN THE ASSESSING OFFICER OR TRIBUNAL HAS CON SIDERED THE MATTER IN DETAIL AND THE VIEW TAKEN IS A POSSIBLE VIEW THE OR DER CANNOT BE CHANGED BY WAY OF EXERCISING THE JURISDICTION OF RECTIFICATION OF MISTAKE. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT WHAT CANNOT BE DONE DIRECTLY CANNOT BE DONE INDIRECTLY. IF THE INCOME-TAX OFFICER DOES NOT POSSESS THE POWER O F REVIEW, HE CANNOT BE PERMITTED TO ACHIEVE THE SAID OBJECT BY TAKING RECO URSE TO INITIATING A PROCEEDING OF REASSESSMENT OR BY WAY OF RECTIFICATI ON OF MISTAKE. IN A CASE OF THIS NATURE THE REVENUE IS NOT WITHOUT REMEDY. SECT ION 263 OF THE ACT EMPOWERS THE COMMISSIONER TO REVIEW AN ORDER WHICH IS PREJUDICIAL TO THE REVENUE. IN BAWA ABHAI SINGH'S CASE [2002] 253 ITR 83 (DELHI ), A DIVISION BENCH OF HONBLE DELHI HIGH COURT CLEARLY HELD THAT : 'THE CRUCIAL EXPRESSION IS ' REASON TO BELIEVE '. THE EXPRESSION PREDICATES THAT THE ASSESSING OFFICER MUST HOLD A BELIEF . . . BY THE EXISTENCE OF REASONS FOR HOLDING SUCH A BELIEF. IN OTHER WORDS, IT CONTE MPLATES EXISTENCE OF REASONS ON WHICH THE BELIEF IS FOUNDED AND NOT MERELY A BEL IEF IN THE EXISTENCE OF REASONS INDUCING THE BELIEF. SUCH A BELIEF MAY NOT BE BASED MERELY ON REASONS BUT IT MUST BE FOUNDED ON INFORMATION. AS W AS OBSERVED IN GANGA SARAN AND SONS P. LTD. V. ITO [1981] 130 ITR 1 (SC) , THE EXPRESSION 'REASON TO BELIEVE' IS STRONGER THAN THE EXPRESSION 'IS SAT ISFIED'. THE BELIEF ENTERTAINED BY THE ASSESSING OFFICER SHOULD NOT BE IRRATIONAL A ND ARBITRARY. TO PUT IT DIFFERENTLY, IT MUST BE REASONABLE AND MUST BE BASE D ON REASONS WHICH ARE MATERIAL. IN S.NARAYANAPPA V. CIT [1967] 63 ITR 219 , IT WAS NOTED BY THE APEX COURT THAT THE EXPRESSION 'REASON TO BELIEVE' IN SECTION 147 DOES NOT MEAN PURELY A SUBJECTIVE SATISFACTION ON THE PART O F THE ASSESSING OFFICER, THE BELIEF MUST BE HELD IN GOOD FAITH ; IT CANNOT BE ME RELY A PRETENCE. IT IS OPEN TO THE COURT TO EXAMINE WHETHER THE REASONS FOR THE BE LIEF HAVE A RATIONAL NEXUS OR A RELEVANT BEARING TO THE FORMATION OF THE BELIE F AND ARE NOT EXTRANEOUS OR IRRELEVANT FOR THE PURPOSE OF THE SECTION. TO THAT LIMITED EXTENT, THE ACTION OF ITA NO.215-18/KOL/2016 A.YS. 01-02 TO 04-0 5 DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK VS. ITO WD-43(4) KOL. PAGE 6 THE ASSESSING OFFICER IN INITIATING PROCEEDINGS UND ER SECTION 147CAN BE CHALLENGED IN A COURT OF LAW.' 6.3 WE ARE THEREFORE OF THE OPINION THAT SECTION 14 7 OF THE ACT DOES NOT POSTULATE CONFERMENT OF POWER UPON THE ASSESSING OF FICER TO INITIATE REASSESSMENT PROCEEDING UPON HIS MERE CHANGE OF OPI NION. IT IS NECESSARY TO EXAMINE WHETHER THERE WAS ANY 'REASON TO BELIEVE' T O HAVE HAD SUCH AN EXERCISE. THE TERM 'REASON TO BELIEVE' CANNOT BE CO NSIDERED OR EVALUATED IN A WATER TIGHT COMPARTMENT AND SCOPE AND APPLICABILITY MAY VARY FROM CASE TO CASE, DEPENDING UPON THE FACTS AND CIRCUMSTANCES. T HE POWER UNDER SECTIONS 147 / 148 COMES INTO EXISTENCE IF HE HAD REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. FORMATION OF REASON TO BELIEVE THAT INCOME ESCAPED ASSESSMENT HAS TO BE THAT OF A PRUDENT PERSON. THE REASONS FOR SUCH BELIEF HAVE TO BE RECORDED IN WRITING ON THE BASIS OF MATE RIAL IN THE POSSESSION OF AO. WHILE THE WORDS 'REASON TO BELIEVE' ARE WIDE IN THEIR IMPORT, IT CANNOT INCLUDE A MERE SUSPICION OR IPSE DIXIT OF THE AO. T HE BELIEF OF THE AO SHOULD LEAD HIM TO FORM AN HONEST AND REASONABLE OPINION B ASED ON REASONABLE GROUNDS. THE REASONABILITY OF THE GROUNDS WHICH LED TO THE FORMATION OF BELIEF WARRANTING REOPENING IS TESTED FROM THE POINT OF VI EW WHETHER OR NOT THEY ARE GERMANE TO THE FORMATION OF BELIEF THAT INCOME ESCA PED ASSESSMENT AND AFTER 4 YEARS, AN ADDITIONAL SAFEGUARD OR CONDITION THAT ESCAPEMENT OF INCOME WAS DUE TO FAULT OF THE ASSESSEE, IN NOT FULLY AND TRUL Y DISCLOSING THE MATERIAL FACTS AT THE TIME OF ORIGINAL ASSESSMENT. THE HON'BLE SUP REME COURT ENDORSING THE FULL BENCH DECISION OF THE HON'BLE DELHI HIGH COURT IN CIT VS. KELVINATOR OF INDIA LTD. -HELD IN ITS ORDER REPORTED IN 320 ITR 5 61, '.....THAT ASSESSING OFFICER HAS POWER TO REOPEN, P ROVIDED THERE IS 'TANGIBLE MATERIAL' TO COME TO THE CONCLUSION THAT THERE IS E SCAPEMENT OF INCOME FROM ASSESSMENT. REASONS MUST HAVE LINK WITH THE FORMATI ON OF BELIEF.' THEREFORE, IF THE FRESH TANGIBLE MATERIAL WHICH THE AO HAS IN HIS POSSESSION IS RELEVANT TO HAVE NEXUS TO THE FORMATION OF BELIEF T HEN, OF COURSE, THE AO WOULD HAVE THE NECESSARY JURISDICTION TO TAKE ACTION UNDE R THE ACT. WHAT IS REQUIRED TO BE EXAMINED IS NOT THE ADEQUACY OR SUFFICIENCY O F THE GROUNDS BUT THE ITA NO.215-18/KOL/2016 A.YS. 01-02 TO 04-0 5 DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK VS. ITO WD-43(4) KOL. PAGE 7 EXISTENCE OF BELIEF. IN OUR VIEW, ALL THAT ONE HAS TO EXAMINE IS THAT WHETHER THERE WAS SOME MATERIAL WHICH, GAVE RISE TO PRIMA F ACIE VIEW IF THAT INCOME HAS ESCAPED ASSESSMENT AND THE BELIEF WAS FORMED IN GOOD FAITH OR WAS IT MERE PRETENCE FOR INITIATING ACTION U/S 147/148 OF THE ACT. 7. NOW LET US LOOK INTO THE FACTS PERTAINING TO THE ASSESSEE COMPANY FOR AY 2001- 02 TO EXAMINE THE LEGAL GROUNDS RAISED BY THE ASSESSEE IN THE LIGHT OF REASONS TO BELIEVE RECORDED BY THE AO IN HIS ASS ESSMENT ORDER WHICH READS AS UNDER : IT IS SEE THAT THE ASSESSEE HAS CLAIMED EXEMPTION U/S. 11 OF THE IT ACT 1961 BUT THE TRUST IS NOT REGISTERED U/S. 12A OF TH E IT ACT, 1961, THE INCOME DERIVED FROM THE TRUST IS USED FOR PRIVATE R ELIGIOUS PURPOSE WHICH DOES NOT ENSURE FOR THE BENEFIT OF THE PUBLIC. IT IS ALSO SEEN THAT THE ASSESSEE DERIVES INCOME FR OM RENT AND INTEREST FROM FD FROM BANKS BUT THE EXPENSE CLAIMED ARE PURE LY PERSONAL IN NATURE AND DEDUCTION ARE NOT AS PER SECTION 57 OF T HE IT ACT IN THE CASE OF INCOME FROM OTHER SOURCES. PAGE 4 OF AO ORDER ON PERUSAL OF THE REASONS TO BELIEVE WE FIND THAT T HE CASE WAS REOPENED UNDER SECTION 147 OF THE ACT ON ACCOUNT OF TWO REAS ONS. FIRSTLY THE ASSESSEE CLAIMED EXEMPTION UNDER SECTION 11 OF THE ACT WITHO UT HAVING REGISTRATION U/S 12A OF THE ACT. SECONDLY ASSESSEE HAS CLAIMED PERSO NAL EXPENSES AGAINST THE INCOME OF OTHER SOURCES WHICH ARE NOT ALLOWABLE UNDER SECTION 57 OF THE ACT. HOWEVER, ON PERUSAL OF INCOME TAX RETURN WE FI ND THE FACT IS THAT THE ASSESSEE IS NOT REGISTERED U/S 12A OF THE ACT AND N O EXEMPTION U/S 11 OF THE ACT WAS CLAIMED. SIMILARLY, WE FIND THAT NO EXPENSE AGAINST THE INCOME OF OTHER SOURCES WAS CLAIMED BY THE ASSESSEE AND CONSE QUENTLY NO QUESTION OF CLAIMING PERSONAL EXPENSE ARISES. THE FACT AS EMERG ED FROM THE RECORDS IS THAT ASSESSEE HAS JUST SHOWN THE TDS DEDUCTED IN TH E NAME OF THE ASSESSEE IN ITS RETURN WHICH IS PLACED ON PAGE 60 OF THE PAP ER BOOK WITH SOLE PURPOSE OF CLAIMING THE REFUND OF THE TDS. THE ASSESSEE HAS NO T EVEN SHOWN INCOME ITA NO.215-18/KOL/2016 A.YS. 01-02 TO 04-0 5 DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK VS. ITO WD-43(4) KOL. PAGE 8 CORRESPONDING TO TDS IN THE INCOME TAX RETURN. IN T HIS REGARD WE FIND THAT THE INCOME CORRESPONDING TO TDS WAS DULY SHOWN IN THE H ANDS OF 9 DEITIES/IDOLS RETURN WHICH ARE PLACED ON PAGES 51 TO 69 OF THE PA PER BOOK. 7.1 THUS IT CLEAR THAT IN THE REASONS RECORDED, THE RE IS NO LIVE LINK BETWEEN THE REASONS TO BELIEVE AND INCOME ESCAPEMENT ASSESS MENT. WE ARE AWARE THAT THE REASON RECORDED TO RE-OPEN HAS TO BE SEEN ON A STANDALONE BASIS WHICH TRIGGERED TO REOPEN THE CASE UNDER SECTION 14 7 OF THE ACT. IN THE LIGHT OF THE ABOVE WE ARE OF THE OPINION THAT IT CANNOT BE C ONCLUDED THAT AO WAS NOT HAVING SUFFICIENT INFORMATION AT THE TIME OF INITIA TING ACTION U/S 147 FOR FORMING REASON FOR ESCAPEMENT OF INCOME. IN THE LIGHT OF TH E ABOVE, WE HOLD THAT THERE WAS NO FRESH TANGIBLE MATERIAL AVAILABLE FOR THE FO UNDATION ON WHICH THE AO HAS MADE UP HIS MIND TO REOPEN THE CASE UNDER SECTI ON 147 OF THE ACT. ACCORDINGLY WE FIND FORCE IN THE CONTENTION OF THE LD. AR THAT THERE WAS NO SHRED OF EVIDENCE IN THE HANDS OF THE AO WHILE REOP ENING THE CASE WHICH CAN BE TERMED AS A NEW TANGIBLE MATERIAL AND LINK TO BA SE A REASON TO BELIEVE ESCAPEMENT OF INCOME. THEREFORE, THE ENTIRE REOPENI NG IS VITIATED ON THIS COUNT. IN THE ABSENCE OF THE SAID JURISDICTIONAL FA CT RENDERS THE REOPENING 'CORAM NON JUDICE' AND THE ASSESSMENT 'NULL' IN THE EYES OF LAW. 7.2 WE ALSO FIND THAT THE AO IS UNDER OBLIGATION TO DISPOSE OF THE OBJECTION RAISED BY THE ASSESSEE FOR THE REOPENING OF THE CAS E UNDER SECTION 147 OF THE ACT BY WAY OF SPEAKING ORDER IN TERMS OF THE HONBL E SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD V. INCOME TAX OFFICER (2003) 259 ITR 19 (SC). BUT WE FIND THAT THE AO FAILED TO PASS A SPEA KING ORDER ON THE OBJECTIONS RAISED BY THE ASSESSEE TO THE REOPENING OF THE ASSE SSMENT. THE AO ASSUMED JURISDICTION IN THE INSTANT CASE ON WRONG ASSUMPTIO N OF FACTS. IN VIEW OF ABOVE, WE ARE OF THE VIEW THAT AO HAS ER RONEOUSLY USURPED JURISDICTION WHICH LAW DOES NOT PERMIT HIM TO DO ON THE REASONS GIVEN ABOVE, SO THE ENTIRE ACTION OF AO IS AB-INITIO VOID AND IS QUASHED. ITA NO.215-18/KOL/2016 A.YS. 01-02 TO 04-0 5 DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK VS. ITO WD-43(4) KOL. PAGE 9 8. AS WE HAVE HELD THAT THE ASSESSMENT FRAMED U/S 1 47 OF THE ACT IS NOT SUSTAINABLE, THEREFORE WERE NOT INCLINED TO ADJUDI CATE OTHER GROUNDS OF APPEAL ON MERITS AS THEY BECOME ACADEMIC AND INFRUCTUOUS A ND WE DISMISS THE SAME AS HAVING BECOME INFRUCTUOUS. 9. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 10. NOW COMING TO THE REMAINING APPEALS FILED BY TH E ASSESSEE IN ITA NO.216-218/KOL/2016 FOR AYS 2002-03 TO 2004-05. SINCE COMMON GROUNDS ARE INVOLVED IN ALL THESE APPEALS, BOTH THE PARTIES AGREED WHATEVER VIEW TAKEN IN THE ABOVE APPEAL (ITA NO.215/KOL/2016) OF ASSESS EE MAY BE TAKEN IN THESE APPEALS OF ASSESSEE ALSO, WE HOLD ACCORDINGLY. 11. IN THE RESULT, FOUR APPEALS OF ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT 11/ 01/2017 SD/- SD/- (#$) () (A.T.VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S &'(- 11 / 01 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-DEBOTTOR TRUST ESTATE OF RAMMOHAN MULLICK , 39, JATINDRA MOHAN AVENUE, KOLKATA-7 00 005 2. /REVENUE-ITO, WARD-43(4), 3, GOVERNMENT PLACE, GROU ND FLOOR, KOLKATA-01 3.'0'12 3 / CONCERNED CIT KOLKATA 4. 3- / CIT (A) KOLKATA 5.6 78$$12, 12!, / DR, ITAT, KOLKATA 6.8;<=> / GUARD FILE. BY ORDER/ , /TRUE COPY/ /' 12!,