DCIT, CHENNAI V. M/s. Golden Shelters Pvt. Ltd., CHENNAI

ITA 2344/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4811 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 12-08-2016
• Court: TRIBUNAL
• Department Lawyers: K N DHANDAPANI
• Assessee Lawyers: S DEEPA
• Keywords: Unexplained cash credit; Income from undisclosed sources; Search and seizure; Charitable institution; Tangible material; Difference of opinion; Capital receipt; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . , ! ' ! # . $% , & ' BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I.T.A.NOS. 2341 TO 2346/MDS/2016 ( / ASSESSMENT YEARS: 2005-06 TO 2007-08, 2010-11& 2011 -12) THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 5(2), CHENNAI VS M/S. GOLDEN SHELTERS PRIVATE LIMITED, RUTLAND TOWERS, IV FLOOR, NO.33, SHAFEE MOHAMMED ROAD, OPP. GREAMS ROAD, CHENNAI 600 006. PAN: AABCG9567C ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI K.N. DHANDAPANI, JCIT /RESPONDENT BY : MS. S. DEEPA, CA /DATE OF HEARING : 03.02.2017 ! /DATE OF PRONOUNCEMENT : 25.04.2017 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST T HE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-6, CHENNAI ALL DATED 08.06.2016 IN ITA NO . 163/CIT(A)-6/2010-11, 284/CIT(A)-6/2014-15, 157/CIT (A)- 6/2009-10, 285/CIT(A)-6/2014-15, 198/CIT(A)-6/2013- 14, 289/CIT(A)-6/2014-15 PASSED U/S.250(6) OF THE ACT. 2 ITA NO.2341 TO 2346/ MDS/2016 2. THE BRIEF FACTS:- THE ASSESSEE IS A PRIVATE LIMI TED COMPANY ENGAGED IN THE ACTIVITY OF PROMOTING PROJEC TS, CONSTRUCTION, INVESTMENT AND MAINTENANCE OF FLATS, PUBLIC RESIDENTIAL COMPLEX, BUILDING CHOULTRIES, DHARMASAL AS, MEDITATION HALLS, OLD AGE HOMES, ORPHANAGES, YOGA, SPIRITUAL C LASSES ETC. IT WAS OBSERVED BY THE LD.AO THAT THE ASSESSEE COMPANY WAS RECEIVING DONATIONS FROM VARIOUS PERSONS TOWARDS IN FRASTRUCTURE DEVELOPMENT, HOWEVER FAILED TO OFFER THE SAME FOR T AXATION. THEREFORE THE ASSESSMENT FOR ALL THE AFORESAID ASSE SSMENT YEARS WERE EITHER TAKEN UP FOR SCRUTINY OR REOPENED AND R EASSESSED. 3.1 THE REVENUE HAS RAISED VARIOUS GROUNDS IN ALL I TS APPEALS IN THE CASE OF THE ASSESSEE; HOWEVER THE CONCISE GR OUNDS ARE FRAMED AND STATED HEREIN BELOW FOR ADJUDICATION. 3.2 ITA NO.2341 OF 2016, ASSESSMENT YEAR 2005-06:- THE ONLY ISSUE RAISED IN THE APPEAL IS THAT THE R EVENUE IS AGGRIEVED BY THE ORDER OF THE LD.CIT(A), WHO HAD FO LLOWED THE LOGIC ADOPTED IN THE ORDER PASSED U/S.143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2006-07 IN THE CASE OF THE ASSESSEE BY 3 ITA NO.2341 TO 2346/ MDS/2016 GRANTING RELIEF OF 25% OF THE ADDITION MADE TOWARDS ANONYMOUS DONATION RECEIVED WHICH WAS NOT OFFERED FOR TAXATIO N. 3.3 ITA NO. 2342 OF 2016, ASSESSMENT YEAR 2006-07: - THE LONE GROUND RAISED BY THE REVENUE THAT, THE L D.CIT(A) HAS ERRONEOUSLY QUASHED THE ORDER OF THE LD.AO ON T HE VALIDITY OF REASSESSMENT. 3.4 ITA NO. 2343 OF 2016, ASSESSMENT YEAR 2007-08:- THE ONLY ISSUE RAISED IN THE APPEAL BY THE REVENU E IS THAT THE LD.CIT(A) HAS ERRONEOUSLY PASSED ORDER U/S.250(6) R.W.S 143(3) OF THE ACT , BY FOLLOWING THE LOGIC ADOPTED IN THE ORDER PASSED U/S.143(3) OF THE ACT FOR THE ASSESSMENT YEA R 2006-07 IN THE CASE OF THE ASSESSEE BY GRANTING RELIEF OF 25% OF THE ADDITION MADE TOWARDS ANONYMOUS DONATION RECEIVED WHICH WAS NOT OFFERED FOR TAXATION. 3.5 ITA NO. 2344 OF 2016, ASSESSMENT YEAR 2007-08:- THE LONE GROUND RAISED BY THE REVENUE THAT THE LD.C IT(A) HAS ERRED IN PASSING ORDER U/S.250(6) R.W.S 143(3) & 147 OF 4 ITA NO.2341 TO 2346/ MDS/2016 THE ACT BY QUASHING THE ORDER OF THE LD.AO ON VALIDITY OF REASSESSMENT. 3.6 ITA NO. 2345 OF 2016, ASSESSMENT YEAR 2010-11:- THE ONLY ISSUE RAISED BY THE REVENUE IS THAT THE LD.CIT(A), HAS ERRED IN DELETING THE ADDITION OF RS.2,57,70,00 0/- BASED ON THE FINDINGS OF THE TRIBUNAL THAT THE FUNDS OF THE TRUSTS WERE ADVANCED TO THE COMPANY FOR CONSTRUCTION OF MEDITAT ION HALL. 3.7 ITA NO. 2346 OF 2016, ASSESSMENT YEAR 2011-12:- THE ONLY ISSUE RAISED BY THE REVENUE IS THAT THE LD.CIT(A), HAS ERRED IN DELETING THE ADDITION OF RS.4,33,55,05 0/- BASED ON THE FINDINGS OF THE TRIBUNAL THAT THE FUNDS OF THE TRUSTS WERE ADVANCED TO THE COMPANY FOR CONSTRUCTION OF MEDITAT ION HALL. 4.1 ITA NO.2341 OF 2016, ASSESSMENT YEAR 2005-06: GRANTING RELIEF OF 25% OF THE ADDITION MADE TOWARDS ANONYMOUS DONATION RECEIVED WHICH WAS NOT OFFERED FOR TAXATIO N . DURING THE COURSE OF REASSESSMENT IT WAS OBSERVED BY THE LD.AO THAT THE ASSESSEE COMPANY HAD RECEIVED LARGE SUM OF MONEY FROM VARIOUS PERSONS AND M/S. ANUGRAHA TRUST FOR 5 ITA NO.2341 TO 2346/ MDS/2016 CONSTRUCTION OF BUILDING. IT WAS EXPLAINED BY THE ASSESSEE THAT THE M/S. ANUGRAHA TRUST ADVANCED LARGE SUM TO THE A SSESSEE COMPANY AND ALSO CANVASED INDIVIDUALS WHO REMITTED DONATIONS TO THE ASSESSEE COMPANY FOR CONSTRUCTION OF A MEDIT ATION HALL. AS REGARDS THE CONTRIBUTION RECEIVED FROM M/S. ANUG RAHA TRUST FOR RS.5,30,00,000/- THERE WAS NO DISPUTE. HOWEVER , THE ASSESSEE COULD NOT GIVE THE DETAILS OF THE INDIVIDU ALS WHO HAD MADE AGGREGATE CONTRIBUTION OF RS.3,34,55,010/- AS DONATION, THEREFORE THE LD.AO TREATED THOSE CONTRIBUTIONS AS UNANIMOUS DONATIONS AND ADDED TO THE INCOME OF THE ASSESSEE. ON APPEAL, THE LD.CIT(A) OBSERVED THAT THE CONTRIBUTIONS WERE RECEIVED BY THE ASSESSEE BOTH BY CASH AS WELL AS BY CHEQUE. IT WAS FURTHER GENERALIZED THAT APPROXIMATELY 25% OF THE CONTRIBUT IONS WERE RECEIVED BY CHEQUE AND 75% WERE RECEIVED BY CASH. D ETAILED FINDING ON THAT REGARD WAS MADE DURING THE COURSE O F THE ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2006 -07. BASED ON THE ABOVE FINDINGS, THE LD.CIT(A) DIRECTED THE LD.AO TO TREAT 25% OF THE DONATION AS GENUINE AND NOT ANO NYMOUS AGGREGATING TO RS.83,63,750/- AND THEREBY DELETE TH E ADDITION TO THAT EXTENT. BALANCE AMOUNT OF ANONYMOUS DONATION O F 6 ITA NO.2341 TO 2346/ MDS/2016 RS.2,50,91,260 WAS CONFIRMED. AGGRIEVED BY THE ORDE R OF THE LD.CIY(A) THE REVENUE IS ON APPEAL BEFORE US. 4.2 THE LD. DR VEHEMENTLY ARGUED BEFORE US THAT THE LOGIC APPLICABLE FOR THE ASSESSMENT YEAR 2006-07 CANNOT B E ADOPTED FOR THE RELEVANT ASSESSMENT YEAR 2005-06 AND THEREF ORE THE ORDER OF THE LD.CIT(A) IS ERRONEOUS AND HENCE IT WA S PLEADED THAT THE SAME MAY BE SET ASIDE. ON THE OTHER SIDE T HE LD.AR ARGUED IN SUPPORT OF THE ORDER OF THE LD.CIT(A) REI TERATING HIS FINDINGS THAT THE ENTIRE DONATION RECEIVED BY THE A SSESSEE FOR ALL THE ABOVE ASSESSMENT YEARS WERE THREAD-BEAR ANALYZE D BY THE LD.CIT(A) AND FOUND THE MODE OF PAYMENT TO BE SIMIL AR. HENCE IT WAS REQUESTED THE ORDER OF THE LD.CIT(A) MAY BE CONFIRMED. 4.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE FACTS OF THE CASE, IT IS APPARENT THAT THE LD.CIT(A) HAS VERIFIED THE MOD E OF PAYMENT FOR ALL THE ASSESSMENT YEARS AND HAD OVERALL COME T O A CONCLUSION THAT APPROXIMATELY 25% OF THE PAYMENTS W ERE RECEIVED BY CHEQUE. THEREFORE HE HELD THAT THE 25% OF THE RECEIPTS CANNOT BE TREATED AS ANONYMOUS DONATIONS B ECAUSE THE 7 ITA NO.2341 TO 2346/ MDS/2016 DONEES WERE EASILY IDENTIFIABLE / TRACEABLE AND ACC ORDINGLY HE DIRECTED THE LD.AO TO DELETE THE ADDITION TO THAT E XTENT. SINCE THE LD.DR OR THE REVENUE HAS NOT BROUGHT OUT ANY MA TERIALS ON RECORD TO NEGATE THE FINDINGS OF THE LD.CIT(A), WE DO NOT FIND IT NECESSARY TO INTERFERE WITH THE ORDER OF THE LD.CIT (A) ON THIS ISSUE. ACCORDINGLY WE HEREBY CONFIRM THE ORDER OF THE LD.CIT(A). HENCE THE ISSUE IS DECIDED AGAINST THE REVENUE. 5.1 ITA NO.2342 OF 2016, ASSESSMENT YEAR 2006-07: QUASHING THE ORDER OF THE LD.AO ON REOPENING: THE APPELLANT HAD FILED ITS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR ON 29.11.2006. THEREAFTER THE ASSE SSMENT WAS COMPLETED U/S.143(3) OF THE ACT VIDE ORDER DATE D 30.12.2008. IN THE ASSESSMENT, THE LD. AO HAD MADE ADDITION OF 74.2% OF THE TOTAL DONATIONS RECEIVED BY HOLDING IT TO BE ANONYMOUS DONATIONS. ACCORDINGLY THE ASSESSEE PAID TAXES IN COMPLIANCE WITH THE ASSESSMENT ORDER. SUBSEQUENTLY THE ASSESSMENT WAS ONCE AGAIN REOPENED U/S.147 OF THE A CT VIDE NOTICE ISSUED U/S.148 OF THE ACT DATED 26.03.2013. THE REASONS FOR REOPENING ARE REPRODUCED HEREIN BELOW FOR REFER ENCE: 8 ITA NO.2341 TO 2346/ MDS/2016 PAGE 3 AN INFORMATION VIDE LETTER IN F.NO.DIT(E) NO.MISC/REOPENING/2012-13/481 DATED 14.03.2013, HAS BEEN RECEIVED FROM DIRECTOR OF INCOME-TAX (EXEMPTIONS), CHENNAI, ABOUT CERTAIN VIOLATIONS IN THE TRANSACTIONS BETWEE N M/S. ANUGRAHA TRUST AND THE ASSESSEE COMPANY, M/S. GOLDE N SHELTERS PVT. LTD. AS PER THE INFORMATION, THE TRU ST M/S. ANUGRAHA TRUST HAD ACTUALLY ACTED AS CONDUITS TO PR OVIDE EXPLANATION TO THE SOURCES OF FUND OF RS.17,03,84,5 56/- WHICH HAS BEEN DIRECTLY CREDITED TO THE RESERVES & SURPLU S OF THE ASSESSEE COMPANY UNDER THE NOMENCLATURE, INFRASTRUC TURE DEVELOPMENT FUND. THE INFRASTRUCTURE DEVELOPMENT FUND WAS TREATED AS A CAPITAL RECEIPT IN THE BOOKS OF TH E COMPANY WHEREAS IN REALITY THE AMOUNTS REPRESENT THE UNACCO UNTED INCOME OF THE ASSESSEE COMPANY, WHEREAS IN THE HAND S OF THE TRUST, THE ABOVE PAYMENT HAS BEEN TREATED AS CONTRI BUTION FOR INFRASTRUCTURE DEVELOPMENT FUND. THE FUND TRANSFER TO THE COMPANY DURING THE COURSE OF SCRUTINY PROCEEDINGS IN THE CASE OF THE TRUST WAS INITIALLY SHOWN AS DONATION TO THE INFRASTRUCTURAL DEVELOPMENT FUND BUT LATER TERMED AS INVESTMENT. THE FACT REMAINED THAT THE F UNDS OF THE TRUST ACTUALLY BELONGED TO THE COMPANY. THE BUILDI NGS WERE ALSO ERECTED ON THE LAND BELONGING TO THE ASSESSEE AND NOT THAT OF THE TRUST. THEREAFTER THE REASSESSMENT WAS COMPLETED VIDE ORDE R U/S.143(3) R.W.S.147 OF THE ACT ON 26.02.2014, WHER EIN THE BALANCE 24.8% OF THE DONATIONS AMOUNTING TO RS.4,39,59,216/- WAS ADDED TO THE INCOME OF THE ASS ESSEE AS ANONYMOUS DONATIONS. ON APPEAL, THE LD.CIT(A) R ELYING ON THE DECISION OF THE HONBLE APEX COURT IN THE CA SE CIT V. 9 ITA NO.2341 TO 2346/ MDS/2016 KELVINATOR OF INDIA LIMITED REPORTED IN 320 ITR 561 QUASHED THE ORDER OF THE LD.AO ON REOPENING. THE RELEVANT PORTION OF THE ORDER OF THE LD.CIT(A) IS REPRODUCED HEREIN BEL OW FOR REFERENCE: 5.4 THE MATTER IS CONSIDERED. MY FINDINGS ON THE VALIDITY OF THE ASSESSMENT PROCEEDINGS ARE AS UNDER: I. THE BASIC PREMISE FOR REOPENING THE PROCEEDINGS HAS BEEN THE ARGUMENT THAT THE APPELLANT COMPANY HAD 'USED' 1/5 ANUGRAHA TRUST AS A CONDUIT IN CHANNELISING ITS OWN UNDISCLOSED MONEY UNDER THE GUISE OF CAPITAL RECEI PTS' AND QUESTIONABLE DONATIONS. THE FACT, AS IT EMERGE S THAT DURING THE IMPUGNED ASSESSMENT YEAR, THE APPELLANT COMPANY HAS NOT RECEIVED ANY DONATION FROM M/S. ANUGRAHA TRUST HENCE, THE BASIC PREMISE FOR REOPENI NG THE PROCEEDINGS COMMENCE ON AN ERRONEOUS PRESUMPTION OF FACTS. IN THE CASE OF ITO VS LALAHMANI MEWAL DAS RE PORTED [1976] 103LTR 437 (SC), THE HON'BLE SUPREME COURT H ELD THAT THE REASONS FOR THE FORMATION OF ,THE BELIEF CONTEMPLATED, BY THE SECTION 147 FOR THE REOPENINGO F THE ASSESSMENT MUST HAVE RATIONAL CONNECTION OR RELEVAN T BEARING ON THE FORMATION OF BELIEF. RATIONAL CONNEC TION POSTULATES THAT THERE MUST BEA DIRECT NEXUS OR LIVE LINK BETWEEN THE MATERIAL COMING TO THE NOTICE OF THE AO AND THE FORMATION OF HIS BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IN THAT PARTICULAR YEAR. I N THE APPELLANTS CASE, AS MENTIONED EARLIER SINCE THE AO HAS PROCEEDED ON AN ERRONEOUS PRESUMPTION OF FACTS, THE RE IS NO QUESTION OF A RATIONAL CONNECTION BETWEEN THE MATERIAL AND THE BELIEF AS POSTULATED BY THE HONBLE SUPREME COURT. II. IN THE ORIGINAL ASSESSMENT, THE ASSESSING OFFICER AFTER APPRECIATION OF FACTS AND CIRCUMSTANCES OF THE CASE , DEEMED IT APPROPRIATE TO DISALLOW APPROXIMATELY 74. 2 10 ITA NO.2341 TO 2346 /MDS/2016 PERCENT OF THE DONATION RECEIVED, GIVING AN ALLOWAN CE FOR THE REMAINING 24.8 PERCENT WHEREIN THE NAME, ADDRES S, PAN AND COMPLETE DETAILS WERE FURNISHED. THIS WAS A CONSCIOUS AND A CONSIDERED DECISION TAKEN BY THE AS SESSING OFFICER IN THE ORIGINAL ASSESSMENT ORDER. IN THE REASSESSMENT PROCEEDINGS, THE AO HAS ADDER THE BALA NCE 24.8 PERCENT (ALLOWED EARLIER) TO THE TOTAL INCOME OF THE APPELLANT ON THE GROUNDS THAT INVESTIGATIONS DONE I N AY 2007-08 CONFIRMS THAT THE ASSESSEE ENGAGED SOME PEOPLE TO PURCHASE DEMAND DRAFTS OUT OF ASSESSEES OWN FUN DS AND THEN RECEIVE THE SAME AS DONATION. IT IS PERTINENT TO NOTE THAT NO VERIFICATION/INVESTIGATION HAS BEEN CARRIED OUT BY ASSESSING OFFICER TO COME TO A FINDING THAT DONATI ONS RECEIVED IN THE IMPUGNED ASSESSMENT YEAR IS APPELLA NTS OWN FUNDS. I AM OF THE CONSIDERED VIEW THAT THE ASS ESSING OFFICER HAS NOT BROUGHT ANY NEW MATERIAL ON RECORD TO WARRANT A DIFFERENT VIEW COMPARED TO THE ONE TAKEN IN THE ORIGINAL ASSESSMENT PROCEEDINGS. THE ACTION OF THE AO IN THE REASSESSMENT PROCEEDINGS TANTAMOUNTS TO A FRES H TAKE ON THE SAME SET OF FACTS AND CIRCUMSTANCES. IT IS S ETTLED LAW BY THE HONBLE SUPREME COURT OF INDIA IN THE CASE O F CIT VS KELVINATOR OF INDIA LIMITED REPORTED IN [2010] 3 20 ITR 561 (SC) THAT REASSESSMENT PROCEEDINGS BASE ON MERE 'CHANGE OF OPINION' IS NOT GOOD IN LAW. IN THE APP ELLANTS CASE NOT ONLY THE REASONS FOR REOPENING ARE FACTUAL LY INCORRECT, BUT ALSO A DIFFERENT OPINION HAS BEEN TA KEN ON THE SAME SET OF FACTS AND CIRCUMSTANCES, WITHOUT ESTABLISHING THE TANGIBLE MATERIAL OR EVIDENCE BASE D ON WHICH A DIFFERENT VIEW IS TAKEN. 5.5 IN VIEW OF THE FACTS, CIRCUMSTANCES, AND J UDICIAL PRECEDENCE DISCUSSED ABOVE, I AM OF THE CONSIDERED VIEW THAT THE REASSESSMENT PROCEEDINGS IN THE APPELLANTS CAS E CANNOT BE SUSTAINED. ACCORDINGLY, THE REASSESSMENT PROCEEDIN GS ARE QUASHED. THE APPELLANTS GROUNDS ON THE VALIDITY O F THE REASSESSMENT PROCEEDINGS ARE ALLOWED. 11 ITA NO.2341 TO 2346 /MDS/2016 5.2 BEFORE US THE LD.DR ARGUED IN SUPPORT OF THE OR DER OF THE LD.AO BY REITERATING THE FINDINGS MADE BY THE L D.AO. WHILE AS THE LD.AR RELIED ON THE ORDER OF THE LD.CI T(A) AND PLEADED FOR UPHOLDING THE SAME. 5.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE MATERIALS AVAILABLE ON RECORD. THE LD.C IT(A) WHILE QUASHING THE ORDER OF THE LD.AO ON REOPENING HAS MADE THE FOLLOWING FINDINGS: I. THE APPELLANT COMPANY HAS NOT RECEIVED ANY DONAT ION FROM M/S. ANUGRAHA TRUST, HENCE THE BASIC PREMISES FOR REOPENING THE ASSESSMENT WAS ERRONEOUS. II. THE ISSUE WITH RESPECT TO ANONYMOUS DONATIONS W AS CAUTIOUSLY AND ELABORATELY CONSIDERED BY THE LD.AO DURING THE COURSE OF ORIGINAL ASSESSMENT PASSED U/S.143(3) OF THE ACT. III. NO INVESTIGATIONS WERE CARRIED OUT BY THE REVE NUE TO ESTABLISH THAT THE FUNDS RECEIVED BY THE ASSESSEE W ERE ITS OWN UNDISCLOSED FUNDS. 12 ITA NO.2341 TO 2346 /MDS/2016 IV. NO FRESH MATERIALS WERE BROUGHT OUT BY THE REVE NUE IN ORDER TO JUSTIFY REOPENING OF THE ASSESSMENT. BEFORE US ALSO THE LD.DR HAS NOT BROUGHT OUT ANY MATERIALS WITH COGENT EVIDENCE TO NEGATE THE FINDIN GS OF THE LD.CIT(A). FURTHER IT IS APPARENT FROM THE FACTS OF THE CASE THAT THE ISSUE OF ANONYMOUS DONATIONS WAS ALREADY CONSIDERED BY THE LD.AO DURING THE COURSE OF ORIGIN AL ASSESSMENT. THEREAFTER NO FRESH MATERIALS HAVE SUR FACED TO PROVE THE FACTS OTHERWISE. IN THIS SITUATION, WE D O NOT FIND IT NECESSARY TO INTERFERE WITH THE ORDER OF THE LD.CIT (A) WHO HAS ONLY JUDICIOUSLY FOLLOWED THE DECISION OF THE H ONBLE APEX COURT WHILE ARRIVING AT HIS DECISION. THUS THIS GR OUND RAISED BY THE REVENUE ALSO FAILS. 6.1 ITA NO.2343 OF 2016, ASSESSMENT YEAR 2007-08: GRANTING RELIEF OF 25% OF THE ADDITION MADE TOWARDS ANONYMOUS DONATION RECEIVED WHICH WAS NOT OFFERED FOR TAXATIO N . THE LD.AO VIDE HIS ORDER PASSED U/S.143(3) OF THE A CT TREATED THE AMOUNT OF RS.11,56,96,492/- RECEIVED BY THE ASSESSEE COMPANY AS ANONYMOUS DONATION. THE ASSESSE E 13 ITA NO.2341 TO 2346 /MDS/2016 COMPANY HAD EXPLAINED THAT THE DONATIONS WERE RECEI VED FROM VARIOUS INDIVIDUALS AND FROM M/S. ANUGRAHA TRUST FO R CONSTRUCTION OF A MEDITATION HALL. HOWEVER, THE LD.AO REJECTED THE CLAIM OF THE ASSESSEE. ON APPEAL, THE LD.CIT(A) AFTER EXAMI NING THE DONATION RECEIVED BY THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR AS WELL AS THE ASSESSMENT YEAR 2006-07 CAME TO A CONCLUSION THAT APPROXIMATELY 24.8% OF THE DONATION S WERE RECEIVED BY CHEQUE/DRAFT BY THE ASSESSEE AND THEREF ORE TO THAT EXTENT VIZ., RS.2,89,24,122/- GRANTED RELIEF TO THE ASSESSEE. 6.2 BEFORE US THE LD.DR DID NOT BRING ANY MATERIALS ON RECORD TO NEGATE THE FINDING OF THE LD.CIT(A). FURTHER ON THE SIMILAR ISSUE APART FROM THE ASSESSMENT YEAR 2006-07 FOR TH E ASSESSMENT YEAR 2005-06 ALSO THE FACTS WERE IDENTIC AL AND THE LD.CIT(A) HAD GRANTED RELIEF TO THE ASSESSEE TO THE EXTENT OF 25% OF THE DONATION RECEIVED. HENCE WE DO NOT HAVE ANY REASON TO INTERFERE WITH THE ORDER OF THE LD.CIT(A) FOR THE R ELEVANT ASSESSMENT YEAR 2007-08. HENCE THE GROUND RAISED BY THE REVENUE FAILS. 14 ITA NO.2341 TO 2346 /MDS/2016 7.1 ITA NO.2344 OF 2016, ASSESSMENT YEAR 2007-08: QUASHING THE ORDER OF THE LD.AO ON REOPENING: THE APPELLANT HAD FILED ITS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR ON 28.10.2007. THEREAFTER THE ASSE SSMENT WAS COMPLETED U/S.143(3) OF THE ACT VIDE ORDER DATE D 31.12.2009, WHEREIN THE LD.AO MADE ADDITION OF RS.11,56,96,490/- BY HOLDING IT TO BE ANONYMOUS DON ATION. HOWEVER, THE DONATION GIVEN BY M/S. ANUGRAHA TRUST FOR RS.1,10,00,000/- AND SHRI P.NARAYANAN RS.25,00,000/ - IS ACCEPTED TO BE GENUINE DONATIONS. SUBSEQUENTLY THE LD.AO REOPENED THE ASSESSMENT VIA NOTICE U/S.147 R.W.S.14 8 OF THE ACT DATED 26.03.2013. THE REASONS FOR REOPENING ARE RE PRODUCED HEREIN BELOW FOR REFERENCE: PAGE 3: AN INFORMATION VIDE LETTER IN F.NO.DIT(E) NO.MISC/REOPENING/2012-13/481 DATED 14.03.2013 HAS BEEN RECEIVED FROM THE DIRECTOR OF INCOME TAX (EXEMPTION S), CHENNAI, ABOUT CERTAIN VIOLATIONS IN THE TRANSACTIO NS BETWEEN M/S. ANUGRAHA TRUST AND THE ASSESSEE COMPANY, M/S. GOLDEN SHELTERS PVT. LTD. AS PER THE INFORMATION, THE TRUS T M/S. ANUGRAHA TRUST HAD ACTUALLY ACTED AS CONDUIT TO PRO VIDE EXPLANATION TO THE SOURCES OF FUND OF RS.12,92,96,4 92/- WHICH HAS BEEN DIRECTLY CREDITED TO THE RESERVES & SURPLU S OF THE ASSESSEE COMPANY UNDER THE NOMENCLATURE, INFRASTRUC TURE DEVELOPMENT FUND. THE INFRASTRUCTURE FUND WAS TR EATED AS CAPITAL RECEIPT IN THE BOOKS OF THE COMPANY WHEREAS IN REALITY THE AMOUNTS REPRESENT THE UNACCOUNTED INCOME OF THE ASSESSEE 15 ITA NO.2341 TO 2346 /MDS/2016 COMPANY, WHEREAS IN THE HANDS OF THE TRUST, THE ABO VE PAYMENT HAS BEEN TREATED AS CONTRIBUTION FOR INFRASTRUCTURE DEVELOPMENT FUND. THEREAFTER THE ASSESSMENT WAS REFRAMED WHEREIN THE LD.AO ADDED BACK THE SUM OF RS.1,10,00,000/- RECEIV ED FROM M/S. ANUGRAHA CHARITABLE TRUST AS UNEXPLAINED CREDI T IN THE HANDS OF THE APPELLANT BY TREATING THE SAME AS ASSE SSEES OWN UNACCOUNTED INCOME ROUTED THROUGH THE INDIVIDUAL DO NORS AND THE TRUST. ON APPEAL, THE LD.CIT(A) QUASHED THE RE OPENING PROCEEDINGS BY OBSERVING AS UNDER: PARA 6 : THE MATTER IS CONSIDERED. MY FINDINGS ON THE VALIDITY OF THE REASSESSMENT PROCEEDINGS ARE AS UND ER: I. THE BASIC PREMISE FOR REOPENING THE PROCEEDINGS APP EARS TO BE THE COMMUNICATION FOR DIT(EXEMPTIONS) THAT TH E TRUST, M/S. ANUGRAHA TRUST, WAS USED AS A CONDUIT BY THE APPELLANT IN CHANNELIZING ITS OWN UNDISCLOSED M ONEY UNDER THE GUISE OF INFRASTRUCTURE DEVELOPMENT FUND THROUGH QUESTIONABLE DONATIONS. IN THE REASSESSMEN T PROCEEDINGS THE ASSESSING OFFICER PLACE SOLE RELIAN CE ON THIS COMMUNICATION TO ADD THE IMPUGNED SUM OF RS.1,10,00,000/- RECEIVED FROM M/S. ANUGRAHA TRUST TO THE TOTAL INCOME OF THE APPELLANT. NO EVIDENCE/ENQ UIRY, ETC HAS BEEN MADE BY THE ASSESSING OFFICER IN ORDER TO VERIFY/CORROBORATE THE COMMUNICATION RECEIVED FROM THE DIRECTORATE OF EXEMPTIONS. II. THE LD.CHENNAI TRIBUNAL IN ITS ORDER IN THE CASE OF M/S. ANUGRAHA TRUST IN ITA NO.2068, 2069, 2070 & 16 ITA NO.2341 TO 2346 /MDS/2016 2071/MDS/2014 HAS HELD THAT THE FUNDS OF THE TRUST WERE ADVANCED TO M/S. PRAJIT FOUNDATIONS PRIVATE LIMITED AND THE APPELLANT COMPANY FOR THE CONSTRUCTION OF MEDIT ATION HALL AT VARADALAPALAM MANDAL, CHITOOR DISTRICT, AND HRA PRADESH. IN VIEW OF THIS CONCLUSION OF THE LD. CHE NNAI TRIBUNAL, BEING THE HIGHEST FACT FINDING BODY, THE DONATIONS RECEIVED FROM M/S. ANUGRAHA TRUST CANNOT BE TREATED AS UNEXPLAINED CREDIT OF THE APPELLANT COMP ANY. III. IN ANY CASE, THE ISSUE OF TAXABILITY OF THE IMPUGNE D DONATIONS WAS EXAMINED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT PROCEEDINGS. THE FINDING OF TH E ASSESSING OFFICER ON PAGE-4 OF THE ORDER UNDER SECT ION 143(3) OF THE ACT DATED 31.12.2009 IS REPRODUCED AS UNDER: I. THE ASSESSEE ALSO CLAIMED THAT THEY HAVE RECEIVED RS.1,10,00,000/- FROM M/S. ANUGRAHA, A TRUST. THE ENTIRE RECEIPTS ARE IN CASH. THE ASSESSEE ALSO FIL ED A CONFIRMATION LETTER FROM SHRI T. NARAYANAN, COMMISSIONER OF INCOME-TAX (APPEALS)-6, CHENNAI THAT HE HAS PAID DONATION OF RS.25,00,000/- FOR THE PURPOSE OF CONSTRUCTION OF A BUILDING. IN BOTH THE SE CASES, THE SOURCE OF THE DONATION AND THE INTENTION OF THE DONE HAVE BEEN DEMONSTRATED BY THE ASSESSEE COMPANY. IN VIEW OF THIS, AN AMOUNT OF RS.11,56,96,492/- BEING THE SUM OF DONATIONS OVER AND ABOVE THE TWO RECEIPTS SUPRA, ARE CHARGEABLE TO TAX. IV. IN THE REASSESSMENT ORDER, THE ASSESSING OFFICER HA S ADMITTED THAT THE ISSUE HAD BEEN EXAMINED IN THE OR IGINAL ASSESSMENT PROCEEDINGS, AND THE SAME WAS ACCEPTED IN GOOD FAITH. I AM UNABLE TO BE PERSUADED BY THIS ARGUMENT. IT IS UNDER SECTION 143(1) THAT THE DETA ILS OF INCOME AND EXPENDITURE FURNISHED BY THE TAX PAYERS ARE ACCEPTED IN GOOD FAITH. UNDER THE PROCEEDINGS UNDE R 17 ITA NO.2341 TO 2346 /MDS/2016 SECTION 143(3) OF THE ACT, SCRUTINY AND VERIFICATIO N OF THE DETAILS FILED ARE MADE, AND NECESSARY VARIATIONS TO THE TOTAL INCOME AS PER LAW ARE MADE BY THE AO. IN THE PRESENT CASE, THE AO IN THE ORIGINAL ASSESSMENT PROCEEDINGS HAS GIVEN A CLEAR FINDING THAT THE SOU RCE AND THE INTENTION OF THE DONE HAVE BEEN DEMONSTRATE D BY THE ASSESSEE COMPANY. HENCE, THIS IS NOT A CASE OF ACCEPTANCE OUT OF GOOD FAITH AS CONTENDED IN THE IMPUGNED REASSESSMENT ORDER. ON THE CONTRARY, THIS IS A CLEAR CASE OF THE IMPUGNED REASSESSMENT ORDER. ON THE CONTRARY, THIS IS A CLEAR CASE OF ARRIVING AT A CON CLUSION AFTER PROPER VERIFICATION OF FACTS AND DUE APPLICAT ION OF MIND. IT MUST NOT BE MENTIONED HERE THAT THE AO H AS NOT BROUGHT IN ANY NEW FACTS RELATING TO SUPPRESSION OF INCOME BY THE APPELLANT COMPANY. THE ENTIRE DETAIL S OF THE CAPITAL RECEIPTS WERE ALREADY AVAILABLE TO THE AO UNDER THE ORIGINAL PROCEEDINGS. THE RELIANCE OF TH E AO ON THE COMMUNICATION OF THE DIRECTORATE OF EXEMPTIO NS ALSO BECOMES IRRELEVANT IN VIEW OF THE CLEAR FINDIN G OF LD. CHENNAI TRIBUNAL ON THE FUNDS OF M/S. ANUGRAHA TRUS T. V. I AM THEREFORE OF THE CONSIDERED VIEW THAT THE PRES ENT REASSESSMENT PROCEEDINGS ARE NOTHING BUT A MERE CHA NGE OF OPINION ON THE SAME SET OF FACTS. THE AO HAS RE OPENED THE ASSESSMENT PROCEEDINGS ON ACCOUNT OF SUPPOSED FAILURE ON THE PART OF THE APPELLANTTO FULLY AND TR ULY DISCLOSE THE MATERIAL FACTS THAT HAVE LED TO THE ESCAPEMENT OF INCOME FROM TAX. THE AO, IN THE REASSESSMENT ORDER HAS NOT ESTABLISHED WHICH MATERI AL FACT HAD NOT BEEN FULLY AND TRULY DISCLOSED. I AM OF THE VIEW THAT THE REASSESSMENT PROCEEDINGS ARE NOTHING BUT A RE-APPRECIATION OF THE SAME MATERIAL ON RECORD. TH E HONBLE SUPREME COURT IN THE CASE OF CIT VS KELVINATOR OF INDIA LIMITED REPORTED IN[2010] 320 ITR 561 HELD AS UNDER: 18 ITA NO.2341 TO 2346 /MDS/2016 PRIOR TO DIRECT TAX LAWS (AMENDMENT) ACT, 1987, RE - OPENING COULD BE DONE UNDER ABOVE TWO CONDITIONS AN D FULFILLMENT OF THE SAID CONDITIONS ALONE CONFERRED JURISDICTION ON THE ASSESSING OFFICER TO MAKE A BACK ASSESSMENT, BUT IN SECTION 147 OF THE ACT [WITH EFFECT FROM 1 ST APRIL, 1989], THEY ARE GIVEN A GO-BY AND ONLY ONE CONDITION HAS REMAIN ED, VIZ., THAT WHERE THE ASSESSING OFFICER HAS REASON TO BELI EVE THAT INCOME HAS ESCAPED ASSESSMENT, CONFERS JURISDICTION TO RE- OPEN THE ASSESSMENT. THEREFORE, POST-1 ST APRIL, 1989, POWER TO RE-OPEN IS MUCH WIDER. HOWEVER, ONE NEEDS TO GI VE A SCHEMATIC INTERPRETATION TO THE WORDS REASON TO BE LIEVE FAILING WHICH, WE ARE AFRAID, SECTION 147 WOULD GIV E ARBITRARY POWERS TO THE ASSESSING OFFICER TO RE-OPEN ASSESSME NTS ON THE BASIS OF MERE CHANGE OF OPINION, WHICH CANNOT BE PER SE REASON TO RE-OPEN. WE MUST ALSO KEEP IN MIND TH E CONCEPTUAL DIFFERENCE BETWEEN POWER TO REVIEW AND P OWER TO REASSESS. THE ASSESSING OFFICER HAS NO POWER TO RE VIEW HE HAS THE POWER TO RE-ASSESS. THE REASSESSMENT HAS T O BE BASED ON FULFILLMENT OF CERTAIN PRE-CONDITION AND I F THE CONCEPT OF CHANGE OF OPINION IS REMOVED, AS CONTE NDED ON BEHALF OF THE DEPARTMENT, THEN, IN THE GARB OF RE-O PENING THE ASSESSMENT, REVIEW WOULD TAKE PLACE. ONE MUST TREAT THE CONCEPT OF CHANGE OF OPINION AS AN IN-BUILT T EST TO CHECK ABUSE OF POWER BY THE ASSESSING OFFICER. HEN CE AFTER 1 ST APRIL, 1989 ASSESSING OFFICER HAS POWER TO RE-OPEN , PROVIDED THERE IS TANGIBLE MATERIAL TO COME TO TH E CONCLUSION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT. REASONS MUST HAVE A LIVE LINK WITH THE FORMATION OF THE BELIEF. UNDER THE DIRECT TAX LAWS (AMENDMENT) ACT, 1987, PARLIAMENT NOT ONLY DELETED THE WORDS REASON TO BELIEVE BUT ALSO INSERTED THE WOR D OPINION IN SECTION 147 OF THE ACT. HOWEVER, ON R ECEIPT OF REPRESENTATIONS FROM THE COMPANIES AGAINST OMISSION OF THE WORDS REASON TO BELIEVE, PARLIAMENT RE-INTRODUCED THE SAID EXPRESSION AND DELETED THE WORD OPINION ON THE GR OUND THAT IT WOULD VEST ARBITRARY POWERS IN THE ASSESSIN G OFFICER ARE THEREFORE DISMISSED. THE RATIO OF THE ABOVE DECISION OF HONBLE SUPREME COURT IS SQUARELY APPLICABLE TO THE FACTS OF THE APPELLANTS CASE. 19 ITA NO.2341 TO 2346 /MDS/2016 ACCORDINGLY, I HOLD THE REASSESSMENT PROCEEDINGS TO BE INVALID, AS IT IS NOTHING BUT A CHANGE OF OPINION ON AN ISSU E WHERE THE AO HAD GIVEN A CLEAR FINDING IN THE ORIGINAL ASSESS MENT ORDER. HENCE, THE REASSESSMENT PROCEEDINGS STANDS QUASHED. 7.2 AFTER HEARING BOTH SIDES, WE FIND MERIT IN THE ORDER OF THE LD.CIT(A) BECAUSE OF THE FOLLOWING REASONS: I. THE CLAIM OF THE REVENUE THAT THE FUND RECEIVED BY THE ASSESSEE COMPANY FROM M/S. ANUGRAHA CHARITABLE TRUS T IS ACTUALLY THE ASSESSEES OWN FUNDS IS NOT PROVED WITH ANY COGENT EVIDENCE. II. NO ENQUIRY OR EVIDENCE WAS GATHERED ON THIS REG ARD BY THE REVENUE TO CORROBORATE WITH THE COMMUNICATION RECEIVED FROM THE DIRECTORATE OF EXEMPTIONS. III. THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ANUGRAHA TRUST IN ITA NO.2068, 2069, 2070 & 2071/MDS/2014 HAS HELD THE CONTRIBUTION MADE BY M/S. ANUGRAHA CHARITABLE TRUST TO BE GENUINE. IV. IN THE ORIGINAL ASSESSMENT PROCEEDINGS U/S.143( 3) OF THE ACT, THIS ISSUE OF DONATION RECEIVED FROM M/S. ANUG RAHA TRUST FOR RS.1,10,00,000/- WAS CONSIDERED BY THE LD .AO AND NO ADDITIONS WERE MADE. 20 ITA NO.2341 TO 2346 /MDS/2016 FROM THE ABOVE IT IS CLEAR THAT THE LD.CIT(A) HAS R IGHTLY FOLLOWED THE DECISION OF THE HONBLE APEX COURT IN THE CASE CIT V. KELVINATOR INDIA LIMITED REPORTED IN 320 ITR 561 AND QUASHED THE ORDER OF THE LD.AO ON REOPENING BECAUSE IN THE CASE OF THE ASSESSEE THE ASSESSMENT WAS REOPENED BASED ON CHANG E OF OPINION. THEREFORE, WE DO NOT FIND IT NECESSARY TO INTERFERE WITH THE ORDER OF THE LD.CIT(A). ACCORDINGLY THE REVENU E FAILS ON THIS GROUND. 8.1 ITA NO.2345 & 2346 OF 2016, ASSESSMENT YEARS 2010- 11 & 2011-12 : DELETING THE ADDITION OF RS.2,57,70,000/- AND RS.4,33,55,050/- FOR THE ASSESSMENT YEARS 2010-11 & 2011-12 RESPECTIVELY BEING THE DONATION RECEIVED FROM M/S. ANUGRAHA CHARITABLE TRUST FOR CONSTRUCTION OF MEDITATION HAL L, BY HOLDING THE GENUINENESS, IDENTITY AND CREDITWORTHINESS OF M/S. ANUGRAHA CHARITABLE TRUST TO BE IN ORDER: DURING BOTH THESE RELEVANT ASSESSMENT YEARS, THE ASSESSEE COMPANY HAD RECEIVED DONATIONS BY WAY OF C ASH FROM M/S. ANUGRAHA CHARITABLE TRUST IN ORDER TO CONSTRUC T A MEDITATION HALL. THE LD.A.O OPINED THAT THE DONATION RECEIVED BY THE ASSESSEE COMPANY WAS THE UNEXPLAINED INCOME OF THE ASSESSEE 21 ITA NO.2341 TO 2346 /MDS/2016 COMPANY AND THEREFORE MADE ADDITION OF THE AFORESAI D AMOUNT U/S. 68 OF THE ACT. ON APPEAL THE LD.CIT(A) RELYING IN THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL CAME TO A CONCLUSION THAT THE GENUINENESS, IDENTITY AND CREDI TWORTHINESS OF M/S. ANUGRAHA CHARITABLE TRUST IS IN ORDER AND GRAN TED RELIEF TO THE ASSESSEE BY OBSERVING AS UNDER: PARA 6 & 6.1 OF THE ORDER OF THE CIT(A) FOR BOTH TH E ASSESSMENT YEARS 6. THE MATTER IS CONSIDERED. IN SUPPORT OF ITS CLAIM, THE APPELLANT HAS FILED COPY OF CONSOLIDATED ORDER OF L D. CHENNAI TRIBUNAL IN ITA NO.2063, 2064, 2065, 2066 & 2067/MD S/2014 IN THE CASE OF NACHIPUR EDUCATIONAL TRUST, AND ITA NO. 2068, 2069, 2070 & 2071/MDS/2014 AND ITA NO.2173/MDS/2012 IN TH E CASE OF M/S. ANUGRAHA TRUST. IN ITS ORDER, THE LD. CHEN NAI TRIBUNAL HAS GIVEN A FINDING OF FACT IN SO FAR AS SOURCE, GE NUINENESS AND CREDIT WORTHINESS OF THE TWO TRUSTS, M/S. ANUGRAHA AND M/S. NACHIPUR EDUCATIONAL TRUST IS CONCERNED. THE RELEV ANT PORTION OF THE FINDING OF LD. CHENNAI TRIBUNAL IS REPRODUCE D AS UNDER: WE HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTHO RITIES AND MATERIAL AVAILABLE ON RECORD. THE FUNDS OF THE TRU STS WERE ADVANCED TO TWO COMPANIES NAMELY, M/S. PRAJIT FOUND ATION PVT. LTD., AND M/S. GOLDEN SHELTERS PVT. LTD., FOR CONST RUCTION OF MEDITATION HALL AT VARADAPALAM MANDAL, CHITOOR DIST RICT, ANDHRA PRADESH 6.1 IN VIEW OF THE FACT THAT THE GENUINENESS, IDENT ITY AND CREDIT WORTHINESS OF M/S. ANUGRAHA TRUST HAS BEEN A CCEPTED BY THE LD. CHENNAI TRIBUNAL, THE ADDITION MADE BY THE AO TREATING THE RECEIPT FROM THE TRUST AS UNEXPLAINED INCOME OF THE APPELLANT COMPANY CANNOT BE SUSTAINED. ACCORDINGLY, I DIRECT THE AO TO 22 ITA NO.2341 TO 2346 /MDS/2016 DELETE THE ADDITION OF RS.2,25,70,000/- (AY 2010-11 ) / RS.4,33,55,050/- (AY 2011-12) ON ACCOUNT OF RECEIPT FROM M/S. ANUGRAHA TRUST. THIS GROUND, IS THEREFORE, ALLOWED . SINCE THE LD.CIT(A) HAS ARRIVED AT HIS DECISION O NLY BASED ON THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNA L SUPRA, WE DO NOT FIND IT NECESSARY TO INTERFERE WITH HIS ORDE R AS WE FIND IT TO BE APPROPRIATE. THEREFORE THIS GROUND RAISED BY TH E REVENUE IN BOTH THE APPEALS IS HELD IN FAVOUR OF THE ASSESSEE. 9. IN THE RESULT ALL THE ABOVE MENTIONED APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON THE 25 TH APRIL, 2017. SD/- SD/- ( ! ' ! # . $% ) ( . ) ( DUVVURU RL REDDY ) ( A. MOHAN ALANKAMONY ) ' #$ /JUDICIAL MEMBER #$ / ACCOUNTANT MEMBER %' /CHENNAI, &# /DATED 25 TH APRIL, 2017 JR # () *) /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. - ( )/CIT(A) 4. - /CIT 5. )./ 0 /DR 6. /1 /GF