M/s Karna International, Ludhiana V. JCIT, Ludhiana

ITA 244/CHANDI/2011

• Counselvise Citation: 24421514 RSA 2011
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-06-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 10-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Tangible material; Difference of opinion; Capital receipt; Reason to believe; Change of opinion
• Section: 147; 148; 2; 143(3); 80HHC; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 244/CHD/2011 ASSESSMENT YEAR: 2002-03 M/S KARNA INTERNATIONAL, V JCIT, RANGE VII, 820/1 DURAGAPURI, LUDHIANA. HAIBOWAL KALAN, LUDHIANA. PAN: ABJPG-9689B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI KUMAR RESPONDENT : SMT. JAISHREE SHARMA DATE OF HEARING : 06.06.2012 DATE OF PRONOUNCEMENT : 21.06.2012 ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 23.12.2010 PASSED BY THE LD . CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (IN SHORT 'TH E ACT'). 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL: 1. THE ORDER PASSED U/S 250(6) OF THE INCOME-TAX ACT,1961 BY THE LD. CIT(A) LUDHIANA IS AGAINST LAW AND FACTS IN THE FILE IN AS MUCH HE WAS NOT JUSTIFIED TO UPHOLD THE ACTION OF THE LD. AO IN INITIATING THE PROCEEDING U/S 148. 2. THAT THE LD. CIT(A) WAS FURTHER NOT JUSTIFIED TO UPHOLD THE ACTION OF THE LD. AO IN ALLOWING DEDUCTION U/S 80 HHC AFTER REDUCING THE CLAIM OF DEDUCTION U/S 80IA. 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN OF INCOME DECLARING AN INCOME OF RS.30,16,25 0/- FOR THE ASSESSMENT YEAR IN QUESTION. THE SAME WAS PROCE SSED U/S 143(1) OF THE ACT. SUBSEQUENTLY, THE CASE WAS R EOPENED TO DISALLOW CLAIM OF DEDUCTION U/S 80IB, ON EXPORT PROFIT AND RE-ASSESSMENT WAS COMPLETED AT NET TAXABLE INCOME O F RS.73,96,316/-. LATER ON, THE AO OBSERVED THAT DED UCTION U/S 80HHC OF THE ACT WAS ALLOWED TO THE ASSESSEE, W ITHOUT REDUCING DEDUCTION AMOUNTING TO RS.44,74,078/-, ALL OWED U/S 80IB OF THE ACT, FROM THE ELIGIBLE PROFIT. THUS , DEDUCTION OF RS.30,22,388/- WAS ALLOWED IN EXCESS. ACCORDING LY, THE AO AGAIN INVOKED THE PROVISIONS OF SECTION 147 R.W. SECTION 148 OF THE ACT. IN RESPONSE, ASSESSEE FILED RETURN OF INCOME, DECLARING NET TAXABLE INCOME OF RS.30,16,250/- AND SUBMITTED BEFORE THE AO THAT DEDUCTION U/S 80IB ATT ACHED TO AN UNDERTAKING WHILE THE DEDUCTION U/S 80HHC ATT ACHED TO AN ASSESSEE. ASSESSEE FURTHER CONTENDED BEFORE AO THAT CORRECT FIGURE OF EXCESS DEDUCTION WAS RS.29,81,626 /- AS AGAINST RS.30,22,388/-, CALCULATED BY HIM. THE SUBM ISSION FILED BY THE ASSESSEE DID NOT FIND FAVOUR WITH THE AO. THEREFORE, THE AO, BY MAKING REFERENCE TO SUB-SECTI ON 9 OF SECTION 80IA OF THE ACT, DISALLOWED EXCESS DEDUCTIO N OF RS.29,81,626/-. THE CIT(A), DISMISSED THE APPEAL OF THE ASSESSEE, CONSIDERING THE RE-ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT AS WELL AS DISALLOWANCE ON ACCOUNT O F EXCESS DEDUCTION CLAIMED U/S 80HHC, WITHOUT REDUCING ALLOW ED DEDUCTION U/S 80IB OF THE ACT, AS VALID. 3 4. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS B EFORE US, LD. 'AR', CONTENDED THAT THE ISSUE OF NOTICE U/ S 148 OF THE ACT IS FOUNDED ON CHANGE OF OPINION AND WITHOUT BRINGING ANY NEW INFORMATION ON RECORD. THE LD. 'A R' REFERRED TO THE DETAILED CHART OF THE EVENTS IN THE CASE, AS APPEARING AT PAGE I OF THE PAPER BOOK. THE LD. 'AR ' STATED THAT ORIGINAL RETURN WAS FILED, ON 31.10.2002, WHIC H WAS PROCESSED ON 23.02.2003 U/S 143(1) OF THE ACT. THE AO INVOKED THE PROVISIONS OF SECTION 147 READ WITH SEC TION 148 OF THE ACT, BY WAY OF ISSUE OF NOTICE, DATED 21.06. 2004 U/S 148 OF THE ACT. THE REASONS RECORDED ARE APPEARING AT PAGE 2 OF THE PAPER BOOK. THE ASSESSMENT WAS FRAMED U/S 143(3) READ WITH SECTION 147 OF THE ACT, ON 25.01.2006, AN D A DISALLOWANCE OF DEDUCTION AMOUNTING TO RS.43,80,066 /- WAS DISALLOWED U/S 80IB OF THE ACT. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A), WHICH WAS DISMISSED ON 08.01.200 7. FURTHER, APPEAL TO TRIBUNAL WAS DISMISSED FOLLOWING LIBERTY INDIA, VIDE ORDER DATED 29.01.2008. THE AO, ISSUED ANOTHER NOTICE U/S 148 OF THE ACT, BY WAY OF RECORDING REAS ONS ON 19.03.2009 (PAGE 6 OF THE PAPER BOOK). IN THE REAS ONS, IT IS STATED THAT ON PERUSAL OF THE RECORD, IT IS NOTICED THAT DEDUCTION U/S 80HHC AT RS.2,35,54,010/- WAS COMPUTE D BY THE AO (AS CLAIMED BY THE ASSESSEE) WITHOUT REDUCIN G THE DEDUCTION OF RS.44,74,078/- ALLOWED U/S 80IB OF THE ACT, FROM ELIGIBLE PROFITS OF THE BUSINESS OF THE FIRM, WHEREAS AS PER PROVISIONS OF SECTION 80IB READ WITH SECTION 80IA(9)/80IB(13) OF THE ACT., DEDUCTION U/S 80HHC H AS TO BE COMPUTED, AFTER REDUCING THE DEDUCTION U/S 81B OF T HE ACT, 4 WHICH COMES TO RS.2,05,31,622/-. THE ASSESSMENT WA S FRAMED, ON 24.11.2009, AGAINST WHICH, APPEAL FILED WITH THE CIT(A), WHICH WAS DISMISSED BY THE CIT(A) VIDE ORDE R DATED 23.12.2000. THIS ORDER IS UNDER APPEAL BEFORE US. THE FACTUAL DETAILS ARE FURNISHED BY THE LD. 'AR' IN TH E FORM OF CHART AT PAGE I OF THE PAPER BOOK, DULY SUPPORTED B Y OTHER RELEVANT DOCUMENTS. 4(I) LD. 'AR' FURTHER STATED THAT FOR THE SECOND TI ME, PROVISIONS OF SECTION 148 WERE INVOKED, AFTER FOUR YEARS AND HENCE, THE CASE FALLS UNDER PROVISO TO SECTION 147 OF THE ACT. IT WAS, FURTHER, ARGUED THAT THE ASSESSEE HAS DISCL OSED FULL AND TRUE PARTICULARS, IN THE RETURN OF INCOME. THER EFORE, THE AO IS NOT COMPETENT TO ISSUE NOTICE, SECOND TIME, U /S 148 OF THE ACT, IN VIEW OF THE PROVISO TO SECTION 147 OF T HE ACT. LD. 'AR' PLACED RELIANCE ON THE DECISION, AS REPORTED I N THE CASE OF CIT V BEAR SHOES (INDIA) (P) LTD. (2010) 45 DTR 181 (MAD). LD. 'AR' ALSO PLACED RELIANCE ON THE DECISI ON IN THE CASE OF CIT V KELVINATOR OF INDIA (2010) 320 ITR 56 1 (S.C) AND IN THE CASE OF ICICI PRUDENTIAL LIFE INSURANCE CO. LTD. V ASSTT.CIT & ANOTHER, 325 ITR 471. LD. 'AR' FURTHER PLACED RELIANCE, ON THE DECISION, IN THE CASE OF ASSTT.CIT V HYCRON (INDIA) (2010) 65 DTR 97 (JD-TRIB) AND ON THE DECIS ION OF THE DELHI HIGH COURT, IN THE CASE OF CIT V RAJ KUMA R MAHAJAN IN ITA NO. 683/2011 DATED 04.01.2012. 4(II) LD. 'AR' , IN RESPECT OF GROUND NO.2, ADMITTE D THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE, BY THE DECIS ION OF THE 5 JURISDICTIONAL HIGH COURT, IN THE CASE OF FRIENDS C ASTING (P) LTD. V CIT (2012) 340 ITR 305 (P&H). 5. LD. 'DR', ON THE OTHER HAND, SUPPORTED THE ORDER OF THE CIT(A) AND CONTENDED THAT IT IS NOT A CASE OF CHANG E OF OPINION. LD. 'DR' PLACED RELIANCE ON THE DECISION IN THE CASE OF TILAK RAJ BEDI V JCIT, 319 ITR 385 (P&H) AND THE DECISION OF THE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. V DCIT & ANOTHER, (2012) 340 IT R 64 (S.C). IT WAS, FURTHER, ARGUED BY LD. 'DR' THAT TH ERE IS NO STATUTORY BAR IN ISSUING NOTICE U/S 148, AS LONG AS , THERE IS SATISFACTION OF STATUTORY CONDITIONS, AS LAID DOWN UNDER THE PROVISION OF SECTION 147 R.W. SECTION 148 OF THE AC T. HENCE, VALIDITY OF THE NOTICE CANNOT BE CHALLENGED. 6. AS FAR AS GROUND NO.2 IS CONCERNED, LD. 'DR' CON TENDED THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY T HE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT, IN THE CASE OF FRIENDS CASTING (P) LTD. 340 ITR 305, AS ADMITTE D BY THE LD. 'AR'. 7. RELIANCE PLACED BY THE ASSESSEE ON SEVERAL CASES IS EXAMINED AND APPRECIATED, IN THE LIGHT OF THE RATIO LAID DOWN THEREIN VIS--VIS WITH THE FACT-SITUATION OF THE PR ESENT CASE. IT IS PERTINENT TO REPRODUCE THE RELEVANT AND OPERA TIVE PART OF SUCH DECISIONS: 1. CIT V KELVINATOR OF INDIA LTD. & ANOTHER 320 ITR 561 (S.C) REASSESSMENT OPINION AND REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT TO BE RECORDED- AFTER AMENDMENT IN 1989 ONLY ONE CONDITION 6 REMAINED, VIZ., THAT REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT HAS TO BE RECORDED IN WRITING-THERE MUST BE TANGIBLE MATERIAL FOR THE FORMATION OF THE BELIEF-INCOME-TAX ACT,1961, S. 147 CBDT CIRCULAR NO. 549 DATED OCTOBER 31,1989. THE CONCEPT OF CHANGE OF OPINION ON THE PART OF THE AO TO REOPEN AN ASSESSMENT DOES NOT STAND OBLITERATED AFTER THE SUBSTITUTION OF SECTION 147 O F THE INCOME-TAX ACT,1961, BY THE DIRECT TAX LAWS (AMENDMENT) ACTS, 1987 AND 1989. AFTER THE AMENDMENT, THE AO HAS TO HAVE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT, BUT THIS DOES NOT IMPLY THAT THE AO CAN REOPEN AN ASSESSMENT ON MERE CHANGE OF OPINION. THE CONCEPT OF CHANGE OF OPINION MUST BE TREATED AS AN IN-BUILT TEST TO CHECK THE ABUSE OF POWER. HENCE AFTER APRIL 1,1989, THE AO HAS POWER TO REOPEN AN ASSESSMENT, PROVIDED THERE IS TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT THERE WAS ESCAPEMENT OF INCOME FROM ASSESSMENT. REASON MUST HAVE A LINK WITH THE FORMATION O THE BELIEF. DECISIONS OF THE DELHI HIGH COURT IN CIT V KELVINATOR OF INDIA LTD. (2002) 256 ITR 1 (FB) AND CIT V. EICHER LTD.(2007) 294 ITR 310 AFFIRMED). 2. MEPCO INDUSTRIES LTD. V CIT & ANOTHER RECTIFICATION OF MISTAKE-POWER SUBSIDY RECEIVED BY ASSESSEE-COMMISSIONER ORIGINALLY HOLDING NOT TAXABLE ON GROUND THAT IT WAS A CAPITAL RECEIPT- SUBSEQUENT RECTIFICATION ON GROUND THAT SUPREME COURT HAD DECIDED THAT SUBSIDY RECEIVED AFTER COMMENCEMENT OF PRODUCTION WAS A REVENUE RECEIPT-RECTIFICATION MADE ONLY ON BASIS OF CHANGE OF OPINION-NOT PERMISSIBLE-INCOME-TAX ACT,1961, S. 154). DEVA METAL POWDERS P.LTD. V COMMISSIONER, TRADE TAX (2007) 10 VST 751 (2008) 2 SCC 439 (S.C) AND COMMISSIONER OF CENTRAL EXCISE CALCUTTA V. A.S.C.U. LTD. (2003) 151 ELT 481 (S.C) RELIED ON. 3. ITAT JODHPUR DECISION IN ACIT V HYCRON INDIA,ITA NO. 305/JD/2009 DATED 16.11.2011 REASSESSMENTCHANGE OF OPINIONABSENCE OF MATERIAL OR RATIONAL BELIEF WHEN THE AO PASSED THE ASSESSMENT ORDER, THERE WERE DECISIONS THAT DEDUCTIONS UNDER SS. 80HHC AND 8Q-IB ARE TO BE SEPARATELY COMPUTEDIF THERE IS A DECISION IN FAVOUR OF THE ASSESSEE THEN THE SAME IS TO BE APPLIED AND THUS THE AO HAS TAKEN ONE OF THE POSSIBLE VIEW-CONCEPT OF 'CHANGE OF OPINION' MUST BE TREATED AS AN IN-BUILT TEST TO CHECK THE ABUSE OF POWERTHERE IS NO TANGIBLE MATERIAL 7 WITH THE AO FOR THE PURPOSE OF INITIATING THE REOPENING OF THE ASSESSMENTCIT(A) WAS JUSTIFIED IN QUASHING THE REOPENING OF THE ASSESSMENT UNDER S. 148 TO REDUCE DEDUCTION UNDER S. 80-LA FROM PROFIT OF THE BUSINESS FOR COMPUTING DEDUCTION UNDER S. 80HHC. WHILE THE AO HAD TAKEN DECISION IN THE ORIGINAL ASSESSMENT BY CONSIDERING THE JUDGMENTS THAT DEDUCTIONS UNDER SS. 80HHC AND 80-IA ARE TO BE SEPARATELY COMPUTED, RE-ASSESSMENT WAS NOT PERMISSIBLE ON CHANGE OF OPINION ON THE GROUND THAT DEDUCTION UNDER S. 80-IA SHOULD HAVE BEEN REDUCED FROM THE PROFIT FOR COMPUTING DEDUCTION UNDER S. 80HHC. 4. CIT V BEAR SHOES (INDIA) (P) LTD. 45 DTR (MAD) 181 REASSESSMENT-FULL AND TRUE DISCLOSURECHANGE OF OPINIONASSESSEE HAD DISCLOSED ALL THE MATERIALS BEFORE THE AO AT THE TIME OF FILING THE RETURN (OR THE RELEV ANT ASSESSMENT YEAR AND CLAIMED DEDUCTION UNDER S. 80HHCAO REOPENED THE ASSESSMENT BY INVOKING THE PROVISIONS OF S. 147 AND SCALED DOWN THE DEDUCTION U NDER S. 80HHCREOPENING FOR SECOND TIME WAS NOT VALIDIT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS N OT DISCLOSED THE RELEVANT I MATERIAL IN THE SAID PROCEED INGS THEREFORE, A JUDGMENT OF THE SUPREME COURT CANNOT BE MADE A GROUND FOR REOPENING THE ASSESSMENT UNDER S. 147 ONCE AGAINFURTHER, NOTICE FOR REOPENING THE ASSESSMENT FOR THE SECOND TIME WAS ISSUED ON 4TH AUG ., 2005, I.E., AFTER EXPIRY OF FOUR YEAR PERIOD ON 31ST MARCH, 2004SINCE THE ASSESSEE HAD DISCLOSED ALL THE MATER IAL FACTS AND FILED THE RETURN WITHIN TIME, THE PROCEEDIN GS INITIATED BY THE AO FOR THE SECOND LIME ARE BARRED BY LIMITATIONEXPLANATION 1 TO PROVISO TO S. 147 IS ALS O NOT APPLICABLE TO THE FACTS OF THE CASE. 5. DELHI HIGH COURT DECISION DATED 04.01.2012 IN CI T V RAJ KUMAR MAHAJAN ITA 683/2011 9. IT IS NOT POSSIBLE TO ACCEPT THE CONTENTION OF THE LEARNED COUNSEL FOR THE REVENUE. WE HAVE QUOTED ABOVE THE QUESTIONNAIRE AND THE REPLY FURNISHED BY THE ASSESSEE. THE QUESTION OF DEDUCTIONS UNDER SECTION 80IA AND 80HHC WERE SPECIFICALLY EXAMINED AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS. THE RESPONDENT- ASSESSEE HAD JUSTIFIED THE CLAIM AND FURNISHED DOCUMENTARY EVIDENCE OR PROOF. THE QUANTIFICATION OF THE CLAIM WAS JUSTIFIED THIS IS A CASE OF CHANGE OF OPINION AND THIS IS NOT PERMISSIBLE AS HELD IN CIT V. KELVINATOR OF INDIA (2010) 320 ITR 561 (SC) 8 AND KELVINATOR OF INDIA V. CIT (2002) 256 ITR 1 (DEL). THE OPINION OF THE ASSESSING OFFICER MAY HAVE BEEN LEGALLY ERRONEOUS BUT THIS CANNOT BE A GROUND FOR INITIATION OF RE-ASSESSMENT PROCEEDINGS. AN ERRONEOUS DECISION WHICH IS PREJUDICIAL TO THE REVENUE CAN BE REVISED BUT THE SAID OPTION WAS NOT EXERCISED. 8. THE ASSESSEE APPELLANT HAS DISCLOSED ALL THE MAT ERIAL AND RELEVANT PARTICULARS, WITHIN THE MEANING OF THE PROVISO TO SECTION 147 OF THE ACT, IN RESPECT OF CLAIM U/S 80IA AND 80HHC OF THE ACT. THE AO INVOKED THE PROVISIONS OF SECTION 147 READ WITH SECTION 148 OF THE ACT, TWICE AND IS EXPECTED, BEING QUASI-JUDICIAL AUTHORITY, TO ADJUDICATE THE I SSUE ON THE BASIS OF RELEVANT MATERIAL AVAILABLE ON RECORD AND IN ACCORDANCE WITH THE RELEVANT PROVISIONS OF THE ACT. THE POWERS OF THE AO, CANNOT BE CONSTRUED AS UNBRIDLED AND PLANNERY FOR THE PURPOSE OF INVOKING THE PROVISIONS OF SECTION 147 READ WITH SECTION 148 OF THE ACT. IT I S ALSO ESTABLISHED PROPOSITION OF LAW THAT ASSESSEE IS NOT OBLIGED TO INSTRUCT THE AO ON QUESTIONS OF LAW. IT IS INCUMBE NT UPON THE AO, TO BE FULLY AWARE OF THE RELEVANT STATUTORY PROVISIONS AND APPLY THE SAME TO THE MATERIAL FACTS, TRULY AND FULLY DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME. IN THE PRESENT CASE, IT IS UNDISPUTED FACT THAT THE FACTS OF THE CASE FALL UNDER THE PROVISIONS OF SECTION 147 OF THE ACT . THE AO, HAS INVOKED THE PROVISIONS OF SECTION 147 READ WITH PROVISO THEREUNDER, WITHOUT FULFILLMENT OF THE STATUTORY CO NDITIONS, AS CONTAINED UNDER THE PROVISO TO SECTION 147 OF TH E ACT. THIS VIEW IS FORTIFIED BY THE DECISION RELIED UPON BY THE LD. COUNSEL OF THE ASSESSEE, IN THE CASE OF CIT V KELVI NATOR INDIA & ANOTHER (SUPRA), CIT V BEAR SHOES (INDIA) ( P) LTD. 9 (SUPRA),CIT V RAJ KUMAR MAHAJAN 683/2011 (SUPRA) AN D THE DECISION OF THE ITAT JODHPUR IN THE CASE OF ACIT V HYCRON INDIA ITA NO. 305/JD/2009 (SUPRA). 9. THE DECISION RELIED UPON BY THE REVENUE IN THE C ASE OF HONDA SIEL POWER PRODUCTS LTD. V DCIT (SUPRA) IS NO T APPLICABLE TO THE FACTS OF THE CASE BEING FACTUALLY DIFFERENT AND DISTINGUISHABLE. SIMILARLY, WE HAVE CAREFULLY PERUSED THE FACTUAL MATRIX OF THE CASE OF THE JURISDICTIONA L HIGH COURT, RELIED UPON BY THE REVENUE, IN THE CASE OF T ILAK RAJ BEDI V JT. CIT (2009) 319 ITR 385 (P&H) AND FOUND T HAT THE CASE IS ON FACTUALLY DIFFERENT FOOTINGS. IN THIS C ASE, THE ACTION OF THE AUTHORITIES WAS UPHELD, IN VIEW OF TH E DIRECT DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF LIBERTY INDIA V CIT (2007) 293 ITR 550 (P&H). IN T HAT CASE, APPLICABILITY OF PROVISO TO SECTION 147 OF THE ACT, HAS NOT BEEN CONSIDERED BY THE HON'BLE JURISDICTIONAL HIGH COURT. ACCORDINGLY, IN VIEW OF THIS, THE RATIO OF THE DECI SION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN TH E PRESENT CASE, THE NOTICE U/S 148 OF THE ACT HAS BEEN ISSUED IN A CASE WHERE ASSESSMENT WAS FRAMED U/S 143/147 AND AL SO AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. 10. HAVING REGARD TO THE ABOVE LEGAL AND FACTUAL DISCUSSIONS, AS ALSO RESPECTFULLY FOLLOWING THE DEC ISIONS RELIED UPON BY THE LD.'AR', WE ARE OF THE CONSIDERE D OPINION THAT THE REVENUE HAS FAILED TO ESTABLISH THE FACTUM OF 10 SATISFACTION OF THE STATUTORY CONDITIONS, AS CONTAI NED IN PROVISO TO SECTION 147 OF THE ACT. IN VIEW OF THIS , FINDINGS OF THE CIT(A) CANNOT BE UPHELD. CONSEQUENTLY, APPEAL O F THE ASSESSEE IS ALLOWED. 11 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JUNE,2012. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21 ST JUNE,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH