KEKI H. GHARDA, MUMBAI V. DCI 9(1), MUMBAI

ITA 2418/MUM/2010

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2674 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-01-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 26-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A RAMACHANDRAN
• Assessee Lawyers: P J PARDIWALLA
• Keywords: Tangible material; Difference of opinion; Deemed dividend; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 142(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.2418/M/2010 ASSESSMENT YEAR: 2004-05 DR. KEKI H. GHARDA, 48 HILL ROAD, BANDRA (W), MUMBAI - 50 PAN: AACPG31533E VS. DEPUTY COMMISSIONER OF INCOME TAX 9(1), M.K. ROAD, AAYAKAR BHAVAN, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ITA NO.6656/M/2013 ASSESSMENT YEAR: 2004-05 DEPUTY COMMISSIONER OF INCOME TAX 9(1), R.NO.223, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 20 VS. DR. KEKI H. GHARDA, 56, JER MANSION, W.P. VARDE ROAD, BANDRA (W), MUMBAI - 400 050 PAN: AACPG31533E (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI P.J. PARDIWALLA, A.R. & MS. VASANTI PATEL, A.R. REVENUE BY : SHRI A. RAMACHANDRAN, D.R. DATE OF HEARING : 16.08.2016 DATE OF PRONOUNCEMENT : 23.09.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: OUT OF THE ABOVE TILTED TWO APPEALS ONE HAS BEEN B Y THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) [(HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 03.03.10 AGITATING THE CONF IRMATION OF QUANTUM ADDITIONS MADE BY THE ASSESSING OFFICER (HEREINAFTE R REFERRED TO AS THE AO) AND THE OTHER BY THE REVENUE AGAINST THE ORDER OF T HE LD. CIT(A) DATED 06.09.13 AGITATING THE DELETION OF THE PENALTY LEVI ED BY THE AO UNDER SECTION ITA NO.2418/M/2010 DR. KEKI H. GHARDA 2 271(1)(C) OF THE ACT. FIRST WE TAKE UP THE ASSESSE ES APPEAL I.E. ITA NO.2418/M/2010. ITA NO.2418/M/2010 (ASSESSEES APPEAL) 2. THE ASSESSEE, IN THIS APPEAL, HAS TAKEN THERE EF FECTIVE GROUNDS OF APPEAL. IN THE FIRST GROUND, THE ASSESSEE HAS CHALLENGED TH E REOPENING OF THE ASSESSMENT BY THE AO UNDER SECTION 147/148 OF THE ACT. IN THE SECOND GROUND, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE AO IN TRE ATING THE COMPENSATION RECEIVED ON ACCOUNT OF RELINQUISHMENT OF TENANCY RI GHTS AS DEEMED DIVIDEND UNDER SECTION 2(22)(E) OF THE ACT AS AGAINST CAPIT AL GAINS OFFERED BY THE ASSESSEE IN HIS RETURN OF INCOME. THE ASSESSEE HAS TAKEN THE THIRD GROUND AGITATING THE ACTION OF THE LD. CIT(A) IN NOT SPECI FICALLY DIRECTING THE AO TO ALLOW DEDUCTION UNDER SECTION 80L OF RS.12,000/-. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSM ENT WAS ORIGINALLY COMPLETED UNDER SECTION 143(3) OF THE ACT. IN THE RETURN OF INCOME AS ORIGINALLY FILED, THE ASSESSEE HAD DECLARED INCOME UNDER THE HEAD CAPITAL GAINS ARISING FROM THE RELINQUISHMENT OF TENANCY R IGHTS. THE SAID INCOME DECLARED UNDER THE HEAD CAPITAL GAINS HAD BEEN AS SESSED AS SUCH IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) DATED 29. 09.06. SUBSEQUENTLY, REASSESSMENT PROCEEDINGS WERE INITIATED BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT. THE REASON RECORDED BY THE AO FOR INITIAT ING REASSESSMENT PROCEEDINGS WERE THAT ON EXAMINATION OF RECORDS, IT WAS OBSERVED THAT THE ASSESSEE NEVER POSSESSED ANY TENANCY RIGHTS. HENCE , THE NOTICE UNDER SECTION 148 WAS ISSUED STATING THAT SUBSTANTIAL REVENUE HAD ESCAPED ASSESSMENT. 4. IN APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE CO NTENDED THAT RELEVANT QUERIES HAD BEEN RAISED BY THE AO REGARDING THE TEN ANCY RIGHTS DURING THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE ACT AND THAT NO NEW INFORMATION HAD COME INTO THE KNOWLEDGE OR POSSESSI ON OF THE AO AND THAT THE REOPENING WAS DONE MERELY ON THE BASIS OF CHANGE OF OPINION. THE LD. CIT(A), HOWEVER, REJECTED THE ABOVE CONTENTION OF T HE ASSESSEE OBSERVING THAT ITA NO.2418/M/2010 DR. KEKI H. GHARDA 3 AS PER THE SCHEME OF THE AMENDED PROVISIONS OF SECT ION 147, THE AO NEED MERELY A REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT PROVIDED THE FOUR YEAR TIME LIMIT HAS NOT EXPIRED. IF THE AO HA S FORMED A PRIMA FACIE OPINION THAT ASSESSEE DID NOT POSSESS TENANCY RIGHT S AT THAT STAGE THAT BELIEF, EVEN ONLY ON ASSUMPTION, WAS SUFFICIENT TO REOPEN T HE ASSESSMENT AND IT WOULD BE SUBSEQUENTLY OPEN TO THE ASSESSEE TO PROVE OR DI SPROVE THE CORRECTNESS OR OTHERWISE OF THE ASSUMPTION. HE, THEREFORE, HELD T HAT AT THE STAGE OF ISSUE OF NOTICE UNDER SECTION 148, THE CORRECTNESS OR SUFFIC IENCY OF THE MATERIAL WAS NOT VERY RELEVANT. HE, THEREFORE, UPHELD THE VALIDITY OF THE REOPENING OF THE ASSESSMENT. BEING AGGRIEVED BY THE ABOVE FINDING O F THE LD. CIT(A), THE ASSESSEE HAS COME IN APPEAL BEFORE US. 5. SO FAR AS THE GROUND REGARDING THE VALIDITY OF R EOPENING OF THE ASSESSMENT IS CONCERNED, THE LD. COUNSEL FOR THE AS SESSEE HAS INVITED OUR ATTENTION TO THE ORIGINAL ASSESSMENT ORDER DATED 2 9.09.06 PASSED BY THE AO UNDER SECTION 143(3) OF THE ACT. THE LD. COUNSEL H AS FURTHER INVITED OUR ATTENTION TO THE COPY OF NOTICE ISSUED UNDER SECTIO N 148 OF THE ACT FOR REOPENING OF THE ASSESSMENT AND FURTHER REASONS REC ORDED BY THE AO FOR REOPENING OF THE ASSESSMENT. THE SAID REASONS FOR THE SAKE OF CONVENIENCE ARE REPRODUCED AS UNDER: ON EXAMINING RECORDS IT IS OBSERVED THAT THE ASSES SEE WAS NOT THE TENANT FOR WHICH IT DISCLOSED LONG TERM CAPITAL GAIN OF RS.3,9 1,80,750/- AS RELINQUISHMENT OF TENANCY RIGHT AS HE DOES NOT POSSESS ANY TENANCY RI GHTS. THEREFORE, SUBSTANTIAL REVENUE HAS ESCAPED ASSESSMENT. THEREFORE, THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR A.Y. 04-05 WITHIN THE MEANING OF SECTION 147 OF THE I.T. ACT, 1961. 6. THE LD. A.R. HAS FURTHER INVITED OUR ATTENTION T O THE LETTER/NOTICE DATED 07.09.06 ISSUED UNDER SECTION 142(1) OF THE INCOME TAX ACT IN RELATION TO THE ORIGINAL ASSESSMENT PROCEEDINGS CARRIED OUT UNDER S ECTION 143(3) OF THE ACT. HE, IN THIS RESPECT, HAS INVITED OUR ATTENTION TO C LAUSE (4) OF THE SAID NOTICE WHEREIN IT HAS BEEN DIRECTED TO THE ASSESSEE BY THE AO TO PRODUCE COPY OF ITA NO.2418/M/2010 DR. KEKI H. GHARDA 4 RELINQUISHMENT OF TENANCY RIGHTS AND EXPLAIN SINCE WHEN THE PROPERTY WAS IN THE POSSESSION OF THE ASSESSEE AS TENANT. THE LD. COUNSEL HAS FURTHER INVITED OUR ATTENTION TO LETTER DATED 26.09.06 VIDE WHICH T HE ASSESSEE HAD EXPLAINED THE NATURE OF TENANCY RIGHTS AND THE AMOUNT OF COMPENSA TION RECEIVED TOWARDS RELINQUISHMENT OF TENANCY RIGHTS. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER INVITED OUR ATTENTION TO PAGE 31 TO 36 OF THE PAPER BOOK WHICH IS THE RECORD RELATING TO THE WEALTH TAX ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 1990-91. HE HAS INVITED OUR ATTENTION TO PAGE 34 I.E. ANNEXU RE A-2 WHICH IS THE COMPUTATION/VALUATION OF IMMOVABLE PROPERTY AS ON 3 1.03.90 WHEREIN THE IMMOVABLE PROPERTY OF GHARDA CHEMICALS LTD. HAS BEE N VALUED AT RS.59,625/-. ON THE RIGHT SIDE THE NAME OF TENANTS WHO HAVE OCCU PIED THE SAID PROPERTY HAS ALSO BEEN MENTIONED WHEREIN THE NAME OF ASSESSEE DR . KEKI H. GHARDA IS DULY MENTIONED, THE AREA OCCUPIED BY HIM HAS BEEN MENTIO NED AS 2634 SQ. FT. AND AGAINST WHICH A RENT OF RS.5664 HAS BEEN SHOWN TO B E RECEIVED AND A SUM OF RS.2126/- HAS BEEN SHOWN AS PAID TOWARD MUNICIPAL T AX. THE LD. COUNSEL, THEREFORE, HAS CONTENDED THAT THE CASE OF THE REVEN UE IS THAT THE STORY ABOUT THE TENANCY RIGHTS OF THE ASSESSEE IN THE PROPERTY IN Q UESTION IS A DEVICE ADOPTED BY THE ASSESSEE IN THE YEAR 1995 WHEN THE LANDLORD/TEN ANT OF THE PROPERTY M/S. GHARDA CHEMICALS LTD. HAD ENTERED INTO REDEVELOPMEN T AGREEMENT OF THE PROPERTY. THAT TO LESSEN THE TAX LIABILITY, THE AS SESSEE COMPANY HAD SHOWN ONE OF ITS DIRECTORS DR. KEKI H. GHARDA AS A TENANT IN SOME PORTION OF THE PROPERTY, FOR WHICH A COMPENSATION ON RELINQUISHMENT OF RIGHT S WAS AGREED TO BE PAID TO THE ASSESSEE DR. KEKI H. GHARDA VIDE AGREEMENT DATE D 01.09.1995. THE LD. COUNSEL, THUS, HAS STRESSED THAT FROM THE RECORDS A BOVE, IT IS VERY MUCH EVIDENT THAT THE AGREEMENT OF 1995 WAS NOT AN AFTERTHOUGHT. THE ASSESSEE WAS SHOWN AS TENANT IN THE WEALTH TAX RETURN OF A.Y. 1990-91 ITSELF. THE LD. COUNSEL HAS FURTHER CONTENDED THAT EVEN WHEN AN ISSUE HAD BEEN EXAMINED BY THE AO AND AFTER GETTING EXPLANATION OF THE ASSESSEE IN THIS R ESPECT, THE AO HAD PASSED THE SCRUTINY ASSESSMENT ORDER UNDER SECTION 143(3) OF T HE ACT, THEN WITHOUT COMING INTO HIS KNOWLEDGE ANY ADDITIONAL FACT OR IN FORMATION, THE SUBSEQUENT ITA NO.2418/M/2010 DR. KEKI H. GHARDA 5 REOPENING BASED ON THE SAME REASON WAS NOTHING BUT THE CHANGE OF OPINION. HE, IN THIS RESPECT, HAS RELIED UPON THE DECISION O F THE HONBLE SUPREME COURT IN THE CASE OF KELVINATOR INDIA LTD. (2010) 228 C TR(SC) 488 AND OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF DIRECT I NFORMATION (P) LTD. VS. ITO (2011) 15 TAXMAN.COM 63 (BOMBAY). ON THE OTHER HAND, THE LD. D.R. HAS STRONGLY RELI ED UPON THE FINDINGS OF THE LOWER AUTHORITIES AND HAS STRESSED THAT THE REO PENING OF THE ASSESSMENT EVEN FROM THE KNOWLEDGE GATHERED FROM THE RECORDS BY THE AO WAS VALID IN THIS CASE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE RECORDS. UNDISPUTEDLY, NO NEW FACT OR INFORMATION HAD COME TO THE KNOWLEDGE OF THE AO TO FORM BELIEF THAT THE INCOME IN THIS CA SE HAD ESCAPED ASSESSMENT. AS NOTED ABOVE, THE AO HAD FORMED THE BELIEF STATIN G THAT ON EXAMINATION OF RECORDS, IT WAS OBSERVED BY HIM THAT THE ASSESSEE W AS NOT THE TENANT FOR WHICH HE HAD DISCLOSED LONG TERM CAPITAL GAINS ON ACCOUNT OF COMPENSATION RECEIVED FOR RELINQUISHMENT OF TENANCY RIGHTS. HOWEVER, IT IS ALSO A FACT ON THE FILE THAT SPECIFIC QUERIES WERE RAISED BY THE AO VIDE LETTER DATED 07.09.06 REGARDING THE TENANCY RIGHTS OF THE ASSESSEE IN THE PROPERTY AND THE ASSESSEE WAS ASKED TO EXPLAIN SINCE WHEN THE PROPERTY WAS IN HIS POSSESSI ON AS TENANT AND ALSO TO PRODUCE THE COPY OF DEED OF RELINQUISHMENT OF TENAN CY RIGHTS. THE ASSESSEE HAS ALSO PROVED ON THE FILE THAT THE FACTUM OF ASSE SSEE BEING TENANT IN THE PROPERTY WAS NOT AN AFTERTHOUGHT VERSION OR A COLOU RABLE DEVICE RATHER IN THE WEALTH TAX RETURN FOR THE ASSESSMENT YEAR 1990-91 I .E. PRIOR TO THE SIGNING OF THE DEED OF RELINQUISHMENT OF RIGHT/DEVELOPMENT RIG HTS IN THE YEAR 1995, THE ASSESSEE WAS VERY MUCH SHOWN AS A TENANT IN THE PRO PERTY IN QUESTION. IT HAS NOT BEEN POINTED OUT BY THE AO IN THE REASONS RECOR DED FOR REOPENING OF THE ASSESSMENT AS TO WHAT NEW FACT OR INFORMATION HAD C OME INTO HIS KNOWLEDGE TO FORM THE BELIEF THAT INCOME OF THE ASSESSEE HAD ESC APED ASSESSMENT. THE AO, DURING THE ORIGINAL SCRUTINY ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE ITA NO.2418/M/2010 DR. KEKI H. GHARDA 6 ACT, HAD THOROUGHLY EXAMINED THE ISSUE, PUT THE QUE RIES TO THE ASSESSEE AND THEREAFTER HAD ALLOWED THE CLAIM OF THE ASSESSEE. WITHOUT ANY NEW FACT OR INFORMATION COMING INTO HIS KNOWLEDGE AND WITHOUT S TATING ANY SPECIFIC REASON MERELY SAYING THAT FROM THE RECORDS IT IS OBSERVED THAT THE ASSESSEE WAS NOT TENANT, IN OUR VIEW, IS NOTHING BUT THE CHANGE OF O PINION ON THE PART OF THE AO. AS PER THE PROVISIONS OF SECTION 147 OF THE ACT, TH E AO IS AUTHORIZED TO REOPEN THE ASSESSMENT PROCEEDINGS, IF HE HAS REASON TO BEL IEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE COURT S OF LAW TIME AND AGAIN HAVE HELD THAT SUCH A REASON TO BELIEVE THAT THE IN COME OF THE ASSESSEE HAS ESCAPED ASSESSMENT SHOULD BE BASED ON SOME TANGIBLE MATERIAL WHICH COMES TO THE KNOWLEDGE OF THE AO. AN ASSESSMENT CANNOT BE RE OPENED UNDER SECTION 147 OF THE ACT ON THE BASIS OF MERE SUSPICION. A PE RUSAL OF THE REASONS RECORDED REVEALS THAT ASSESSMENT HAS BEEN REOPENED ON THE ASSUMPTION THAT ASSESSEE WAS NOT THE TENANT IN THE PROPERTY WITHOUT REFERRING TO ANY SPECIFIC DOCUMENT, EVIDENCE OR INFORMATION. THERE IS NO DIS PUTE TO THE WELL SETTLED PROPOSITION THAT REASON TO BELIEVE MUST HAVE A MATE RIAL BEARING ON THE QUESTION OF ESCAPEMENT OF INCOME. IT DOES NOT MEAN A PURELY SUBJECTIVE SATISFACTION OF THE ASSESSING AUTHORITY, SUCH REASON SHOULD BE HELD IN GOOD FAITH AND CANNOT MERELY BE A PRETENCE. FURTHERMORE, THE REASONS TO B ELIEVE MUST HAVE A RATIONAL CONNECTION WITH OR RELEVANT BEARING ON THE FORMATIO N OF THE BELIEF. RATIONAL CONNECTION POSTULATES THAT THERE MUST BE A DIRECT N EXUS OR LIVE LINK BETWEEN THE MATERIAL COMING TO THE NOTICE OF THE ASSESSING OFFI CER AND THE FORMATION OF BELIEF REGARDING ESCAPEMENT OF INCOME. THE POWERS O F ASSESSING OFFICER TO REOPEN AN ASSESSMENT, THOUGH WIDE, ARE NOT PLENARY. THE WORDS OF THE STATUTE ARE 'REASON TO BELIEVE' AND NOT 'REASON TO SUSPECT' . THERE CAN BE NO MANNER OF DOUBT THAT THE WORDS' REASON TO BELIEVE' SUGGEST TH AT THE BELIEF MUST BE THAT OF AN HONEST AND REASONABLE PERSON BASED UPON REASONAB LE GROUNDS AND THAT THE INCOME-TAX OFFICER MAY ACT ON DIRECT OR CIRCUMSTANT IAL EVIDENCE BUT NOT ON MERE SUSPICION, GOSSIP OR RUMOUR. THE INCOME-TAX OF FICER WOULD BE ACTING WITHOUT JURISDICTION IF THE REASON FOR HIS BELIEF T HAT THE CONDITIONS ARE SATISFIED ITA NO.2418/M/2010 DR. KEKI H. GHARDA 7 DOES NOT EXIST OR IS NOT MATERIAL OR RELEVANT TO TH E BELIEF REQUIRED BY THE SECTION. THE COURT CAN ALWAYS EXAMINE THIS ASPECT THOUGH THE DECLARATION OR SUFFICIENCY OF THE REASONS FOR THE BELIEF CANNOT BE INVESTIGATE D BY THE COURT. THE ENTIRE LAW AS TO WHAT WOULD CONSTITUTE 'REASON TO BELIEVE' HAS BEEN SUMMED UP BY SUPREME COURT IN INCOME TAX OFFICER V LAKHMANI MEWA LDAS (1976) 103 ITR 437. 8. IN THIS CASE, THE ORIGINAL ASSESSMENT U/S 143(3) OF THE ACT HAD ALREADY BECOME FINAL. THE AO THEREFORE WAS PRECLUDED FROM R EVIEW OF THE ASSESSMENT WHICH HAD ALREADY BECOME FINAL. THE ADDITION BY TH E AO IN RESPECT OF COMPENSATION RECEIVED ON RELINQUISHMENT OF TENANCY RIGHTS WAS NOTHING BUT THE REVIEW OF THE ALREADY FINALIZED ASSESSMENT THAT TOO WITHOUT ANY MATERIAL EVIDENCE AVAILABLE TO THE AO TO FORM SUCH A BELIEF IN THIS RESPECT. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD.' HAS HELD THAT WE MUST KEEP IN MIND THE CONCEPTUAL DIFFERENCE BETW EEN POWER TO REVIEW AND POWER TO RE-ASSESS. THE ASSESSING OFFICER HAS NO PO WER TO REVIEW; HE HAS THE POWER TO RE-ASSESS. AS OBSERVED ABOVE, THE REOPENIN G AND REASSESSMENT IN THIS CASE WAS NOTHING, BUT, THE REVIEW U/S 143(3) OF THE ACT IN THE GARB OF THE PROVISIONS OF SECTION 147 OF THE ACT, WHICH WAS NOT PERMISSIBLE IN VIEW OF THE LAW LAID DOWN BY THE HONBLE SUPREME COURT IN THE C ASE OF CIT VS. KELVINATOR OF INDIA LTD. (SUPRA). IDENTICAL VIEW HAS ALSO BEEN TAKEN BY THE HONBLE JURISDICTIONAL BOMBAY HIGH COURT IN THE CAS E OF DIRECT INFORMATION (P) LTD. (SUPRA) AS RELIED UPON BY THE LD. COUNSEL . 9. THE FACTS OF THE CASE IN HAND WHEN SEEN IN THE L IGHT OF THE LEGAL PROPOSITION AS LAID DOWN BY THE HONBLE SUPREME COU RT AND BY THE HONBLE JURISDICTIONAL BOMBAY HIGH COURT AS DISCUSSED ABOVE , THE REOPENING IN THIS CASE IS TO BE HELD AS ILLEGAL AND BAD IN LAW. 10. SINCE WE HAVE HELD THE VERY REOPENING OF THE AS SESSMENT AS BAD IN LAW, HENCE THE CONSEQUENTIAL ADDITIONS MADE BY THE AO HA VE NO LEGS TO STAND. ITA NO.2418/M/2010 DR. KEKI H. GHARDA 8 HENCE, WITHOUT GOING INTO THE MERITS OF THE ADDITIO NS MADE BY THE AO CONSEQUENT TO THE REOPENING OF THE ASSESSMENT, THE APPEAL OF THE ASSESSEE IS ALLOWED ON THE GROUND OF THE VALIDITY OF THE REOPEN ING OF THE ASSESSMENT. 11. NOW COMING TO THE APPEAL OF THE REVENUE I.E. IT A NO.6656/M/2013. ITA NO.6656/M/2013 (REVENUES APPEAL) 12. THE REVENUE HAS COME IN APPEAL AGITATING THE AC TION OF THE LD. CIT(A) IN DELETING THE PENALTY LEVIED BY THE AO RELATING T O THE ADDITIONS MADE BY THE AO PURSUANT TO THE REOPENING OF THE ASSESSMENT. WH ILE DECIDING THE APPEAL OF THE ASSESSEE, SINCE WE HAVE ALREADY HELD THE VERY R EOPENING OF THE ASSESSMENT WAS BAD IN LAW AND ACCORDINGLY DELETED THE CONSEQUE NTIAL ADDITIONS, HENCE UNDER THE CIRCUMSTANCES THERE IS NO REASON LEFT FOR THE SUSTAINING OF THE PENALTY LEVIED IN CONSEQUENCES OF SUCH ADDITIONS MADE PURSU ANT TO THE REOPENING OF THE ASSESSMENT. THE APPEAL OF THE REVENUE HAS, THUS, B ECOME INFRUCTUOUS AND THE SAME IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.09.2016. SD/- SD/- (B.R. BASKARAN) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 23.09.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.