Suren International Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 2941/DEL/2010

• Counselvise Citation: 294120114 RSA 2010
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 08-12-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 11-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRANJAN KAULI
• Assessee Lawyers: NARENDER CHHILLAR
• Keywords: Unexplained cash credit; Principle of natural justice; Difference of opinion; Accommodation entries; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 234B; 147; 131; 68; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI G BENC H BEFORE SHRI RAJPAL YADAV, JM & SHRI A.N. PAHUJA, A M ITA NO.2941/D/2010 ASSESSMENT YEAR:2002-03 SUREN INTERNATIONAL PVT. LTD.,1220, SECTOR-A, POCKET -B, VASANT KUNJ, NEW DELHI-110070 V/S . INCOME TAX OFFICER, WARD- 9 (4),CR BUILDING NEW DELHI-110002 [PAN:AAACS 9008 D] (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI NARENDER CHHILLAR, AR REVENUE BY SHRI NIRANJAN KAULI, DR DATE OF HEARING 08-12-2011 DATE OF PRONOUNCEMENT 23-12-2011 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 11.06.2010 BY THE ASSESSEE AG AINST AN ORDER DATED 25 TH MARCH, 2010 OF THE LEARNED CIT(A)-XII, NEW DELHI, RAISES THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN UPHOLDING THE ACTION OF TH E ASSESSING OFFICER IN INITIATING REASSESSMENT PROCEE DINGS U/S 147/148 OF THE INCOME-TAX ACT, 1961 (THE ACT) WITHOUT APPRECIATING THAT : A) THE ASSESSING OFFICER WAS DUTY BOUND TO FURNISH THE EVIDENCE RELIED UPON HIM FOR INITIATING THE SAI D REASSESSMENT PROCEEDINGS AND /THE FAILURE OF THE ASSESSING OFFICER TO CONFRONT THE APPELLANT WITH SUCH EVIDENCE WAS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND, THEREFORE, BAD IN LAW AND VOID AB-INITIO. B) THE INITIATION OF THE REASSESSMENT PROCEEDINGS WAS BASED ON A MERE CHANGE OF OPINION AND CONSEQUENTLY THE IMPUGNED ORDER DATED 24.12.2009 IS ILLEGAL, BAD IN LAW AND IS LIABLE TO BE QUASHED. I.T.A. NO.2941/D/2010 2 C) THE PROCEEDINGS U/S 147 OF THE ACT WERE INITIATE D WITHOUT THERE BEING REASON TO BELIEVE THAT INCOME OF THE APPELLANT HAD ESCAPED ASSESSMENT AND CONSEQUENTLY, THE IMPUGNED PROCEEDINGS ARE ILLEGAL AND BAD IN LAW. 2. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN CON FIRMING THE ADDITION OF ` ` 4,75,01,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED SHARE APPLICATION MONEY RECEIVED BY THE APPELLANT DURING THE YEAR AS UNEXPLAINED CREDIT U /S 68 OF THE ACT, ALLEGING THAT NO EVIDENCE WERE FILED TO SUBSTANTIATE THE SAID AMOUNT. 2.1 THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN CO NFIRMING THE ACTION OF THE ASSESSING OFFICER IN THIS REGARD WITHOUT CONSIDERING THE CONTEMPORANEOUS EVIDENCE FURNISHED BY THE APPELLANT AND WITHOUT APPRECIATING THAT THE TRANSAC TIONS WERE SUPPORTED BY PROPER DETAILS/DOCUMENTS/VOUCHERS. 2.2 THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN UP HOLDING THE ACTION OF THE ASSESSING OFFICER IN THIS REGARD WITHOUT APPRECIATING THAT OUT OF SHARE APPLICATION MONEY OF ` `4,75,01,000/-, A SUM OF ` ` 3,59,85,000/- WAS, IN FACT, RETURNED TO THE PARTIES FROM WHOM SUCH SHARE APPLIC ATION WAS RECEIVED. 3. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN CON FIRMING THE ADDITION OF `3.46 CRORES MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ALLEGED DISCREPANCY IN THE ST OCK OF GOOD SEIZED BY THE CUSTOM AUTHORITIES. 3.1 THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN H OLDING THAT THE APPELLANT FAILED TO SUBSTANTIATE ITS CLAIM IN THIS REGARD WITHOUT APPRECIATING THAT THE APPELLANT HAD FILED CONTEMPORANEOUS EVIDENCE IN THE FORM OF BILLS OF EN TRY, VOUCHERS, CHALLANS FOR PAYMENT OF CUSTOM DUTY ETC. 3.2 THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN CO NFIRMING THE ACTION OF THE ASSESSING OFFICER IN THIS REGARD WITHOUT APPRECIATING THAT THE APPELLANT HAD OFFERED THE INC OME FROM SALE OF GOODS RECEIVED FROM THE CUSTOM AUTHORITIES IN THE YEAR OF SALE. 4. THAT THE ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN CHARGING INTEREST U/S 234B OF THE ACT. I.T.A. NO.2941/D/2010 3 THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER A NY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. ADVERTING FIRST TO GROUND NO.1 IN THE APPEAL, F ACTS IN BRIEF, AS PER RELEVANT ORDERS ARE THAT RETURN DECLARING INCOME OF ` ` 30,18,779/- FILED ON 31.03.2003 BY THE ASSESSEE, AFTER BEING PROCESSED O N 30.05.2003 U/S 143(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) WAS SELECTED FOR SCRUTINY WITH THE SERVICE OF A NOTICE U/S 143(2) OF THE ACT ISSUED ON 20.10.2003. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER[AO IN SHORT] SPECIFICALLY RAISED A QUERY REGARDING SHARE APPLICA TION MONEY OF ` 4,82,01,100/- VIDE HIS QUESTIONNAIRE DATED 21.11.2003. AFTER TAKI NG A NUMBER OF ADJOURNMENTS, THE ASSESSEE FILED CONFIRMATIONS OF VARIOUS PARTIE S . ON THE BASIS OF ADDRESS PROVIDED BY THE ASSESSEE, SUMMONS U/S 131 OF THE AC T WERE ISSUED TO 25 PARTIES ON TEST CHECK BASIS OUT OF OVER 90 PARTIES. SINC E 15 OF THE SUMMONS ISSUED BY THE AO WERE RETURNED UNSERVED WITH THE REMARKS OF T HE POSTAL AUTHORITIES VIZ. NO SUCH PERSON,NO SUCH ADDRESS ETC., THE ASSESSEE W AS ASKED TO FURNISH THEIR LATEST ADDRESSES. AFTER RECEIPT OF ADDRESSES AS M ENTIONED ON PAGE 3 OF THE ASSESSMENT ORDER, SUMMONS WERE ISSUED AGAIN TO 15 P ARTIES AND INSPECTOR WAS DEPUTED TO SERVE THESE SUMMONS ON SEVEN PARTIES.. O F THE REMAINING 8 PARTIES, WHOSE ADDRESSES WERE SUPPLIED BY THE ASSESSEE , SUM MONS ISSUED TO MRS. NEELU WERE RETURNED UNSERVED WHILE THE REMAINING PA RTIES DID NOT APPEAR. SINCE THE ASSESSEE FAILED TO ESTABLISH IDENTITY AND CREDI TWORTHINESS OF THESE SHARE APPLICANTS AS ALSO GENUINENESS OF THE TRANSACTIONS, THE AO ADDED AN AMOUNT OF ` `42 LACS AS DETAILED ON PAGE 6 TO 10 OF THE ASSESS MENT ORDER IN RESPECT OF NEELAM BATRA( ` 5 LACS); DEEPAK AGARWAL( ` 5 LACS);MRS. NEELU( ` 2LACS);MS. RAJKUMARI( ` 5LACS);MRS. RUKMANI DEVI GUPTA( ` 5LACS); SHRI LEELA DHAR GUPTA( ` 5LACS); SHRI ASHOK KUMAR GUPTA( ` 5LACS); SHRI PRADEEP SINGH( ` 5LACS) AND SHRI MANISH KUMAR GARG( ` 5LACS) OUT OF TOTAL SHARE APPLICATION MONEY OF ` `4,82,01,000/-. ACCORDINGLY, ASSESSMENT WAS COMPLET ED ON AN INCOME OF ` 72,18,779/- VIDE ORDER DATED 30.3.2005 WITH THE AFO RESAID ADDITION OF ` `42 LACS U/S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED SHARE A PPLICATION MONEY. I.T.A. NO.2941/D/2010 4 2.1 ON APPEAL, THE LD. CIT(A) DELETED THE ADDITION TO THE EXTENT OF ` `37, LACS WHILE UPHOLDING THE ADDITION OF ` `5 LACS IN THE NAME OF SMT. NEELAM BATRA. THEREAFTER, THE AO RECEIVED INFORMATION FROM DGIT( INVESTIGATION) THAT THE ASSESSEE COMPANY WAS ONE OF THE BENEFICIARIES OF TH E ENTRY OPERATOR SHRI DEEPAK GUPTA S/O LATE SHRI JN GUPTA, WHO ADMITTED T HAT HE TOOK CASH FROM VARIOUS PARTIES AND GAVE DD/CHEQUE IN LIEU THEREOF. BY CHARGING HIS COMMISSION, THE SAID DD/CHEQUE WAS THEN INTRODUCED BY THE VARI OUS PARTIES AS SHARE CAPITAL OR LOAN. THE REPORT RECEIVED FROM DGIT( INVESTIGATI ON)REVEALED MODUS OPERANDI OF THE ENTRY OPERATOR. SINCE THE ASSESSEE WAS ONE O F THE BENEFICIARY AND WAS STATED TO HAVE OBTAINED ACCOMMODATION ENTRIES IN T HE NAME OF VARIOUS PARTIES TO THE EXTENT OF ` 3,65,80,000/- DURING THE YEAR UNDER CONSIDERATION, AS DETAILED IN REASONS RECORDED ON 12.3.2009, THE AO ISSUED NOTIC E U/S 148 OF THE ACT AFTER GIVING DETAILS OF ACCOMMODATION ENTRIES IN TERMS O F THE FOLLOWING REASONS FOR REOPENING THE ASSESSMENT.: IN THIS CASE INFORMATION HAVE ALSO BEEN RECEIVED T HAT THEIR GOODS HAVE BEEN SEIZED BY DRI AND ALSO PENALTY OF ` ` 2CRORES IS LEVIED BY COMMISSIONER CUSTOMS(ICD) FROM THE ABOVE DETAILS AND THE STATEMENT OF MR. DEE PAK GUPTA WHO HAS ADMITTED THAT HE HAS NOT CARRIED OUT ANY BU SINESS ACTIVITY EXCEPT THAT OF PROVIDING ACCOMMODATION ENTRIES AS D ESCRIBED ABOVE,IT IS SEEN THAT THE ASSESSEE HAS DIVERTED ITS OWN MONEY IN TO BUSINESS BY WAY OF TAKING ACCOMMODATION ENTRIES. TH US THE AMOUNTS STATED IN TABLE ABOVE TAXABLE U/S 68 OF TH E ACT AND HENCE I HAVE REASON TO BELIEVE THAT AN AMOUNT OF RS. 3,65 ,80,000/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 1 47 OF THE IT ACT1961 SINCE 4 YEARS HAVE BEEN ELAPSED, THE ASSESSMENT REC ORD IS BEING SUBMITTED FOR KIND PERUSAL AND APPROVAL OF THE COMM ISSIONER OF INCOME-TAX,DELHI-III,NEW DELHI ACCORDING TO SECTION 151(1) OF THE IT ACT,1961 FOR ISSUANCE OF NOTICE U/S 148 OF THE IT A CT. 2.2 IN THE LIGHT OF AFORESAID REASONS, THE AO ISS UED NOTICE U/S 148 OF THE ACT ON 25 TH MARCH, 2009. IN RESPONSE, THE ASSESSEE REPLIED VI DE LETTER DATED 01.06.2009 ALONG WITH A COPY OF THE ACKNOWLEDGEMENT OF FILING OF RETURN ON 4 TH JUNE, 2009. DURING THE COURSE OF REASSESSMENT PROCEEDINGS, SINC E THE ASSESSEE DID NOT I.T.A. NO.2941/D/2010 5 ESTABLISH IDENTITY OR CREDITWORTHINESS OF THE INVES TORS IN RESPECT OF THE AFORESAID SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE C OMPANY NOR ESTABLISHED GENUINENESS OF THE TRANSACTIONS, THE AO ADDED AN AM OUNT OF ` ` `4,75,01,000/-. U/S 68 OF THE ACT BESIDES ADDING AN AMOUNT OF ` ` `3.46 CRORES ON ACCOUNT OF DISCREPANCY IN VALUATION OF STOCK DETECTED BY THE C USTOM AUTHORITIES. 3. ON APPEAL, THE LEARNED CIT(A) UPHELD THE VALIDI TY OF REOPENING OF THE ASSESSMENT, ACCORDING TO THE LD. DR IN THE FOLL OWING TERMS:- DURING THE COURSE OF APPELLATE PROCEEDINGS, IT HAS BEEN SUBMITTED THAT RETURN OF INCOME DECLARING INCOME OF `RS.30,18 ,779/- WAS FILED ON 31.3.2003 AND NOT ON 29.10.2002 FOR AN INCOME OF `RS.10,74,990/-. THE CLAIM OF THE ASSESSEE HAS BEE N VERIFIED FROM THE PHOTO COPY OF THE SAID RETURN RECEIPT. DURING THE APPELLATE PROCEEDINGS, IT HAS BEEN PLEADED THAT ASSESSING OFF ICER DID NOT GIVE OPPORTUNITY TO CROSS EXAMINE SH. DEEPAK GUPTA, WHO ALLEGEDLY PROVIDED ACCOMMODATION ENTRIES. HOWEVER, THIS CLAIM OF THE ASSESSEE, HOLDS NO SUBSTANCE AS THE ONUS TO EST ABLISH THE IDENTITY, GENUINENESS AND CAPACITY LIES ON THE ASSE SSEE WHICH THE ASSESSEE FAILED TO DISCHARGE. IT IS THE ASSESSEE W HO HAD BUSINESS DEALINGS WITH SH. DEEPAK GUPTA. IN VIEW OF THE GIST OF THE REPORT FORMING THE BASIS OF INVESTIGATION WING AND DETAILED DISCUSSION ON MODUS OPERANDI, THE ASSESSING OFFICER GAVE SEVERAL OPPORTUNITIES TO THE ASSESSEE TO ESTABLISH THE IDENTITY, GENUINENESS AND CAPACITY OF THE SHARE APP LICANTS. THE ASSESSEE HAS ALSO PLEADED THAT AS PER REASONS FOR I SSUE OF NOTICE U/S 148, STATEMENT OF SHRI DEEPAK GUPTA WAS RECORDE D ON 25.09.2004 BY THE INVESTIGATION WING AND THE ASSESS MENT U/S 143(3) WAS COMPLETED ON 31.3.2005 BY DCIT, CIRCLE 9 (1) AND HE HAD CHOSEN NOT TO ACT ON THE REPORT OF THE INVESTIG ATION WING ALREADY IN HIS POSSESSION. HOWEVER, AS ESTABLISHED BY DOCUMENTARY EVIDENCE, THE ASSESSING OFFICER FORMED AN OPINION THAT INCOME HAD ESCAPED ASSESSMENT AND HE FOLLOWED ALL PROCEDURES BEFORE INVOKING THE PROVISIONS OF SECTIO N 147. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A). AT THE OUTSET, THE LD. AR ON BEHALF OF THE ASSESSEE WHILE CARRYING US THROUGH THE IMPUGNED ORDER CONTEN DED THAT THE AO WAS NOT JUSTIFIED IN REOPENING THE ASSESSMENT. IN THIS CONN ECTION, THE LD. AR RELIED UPON I.T.A. NO.2941/D/2010 6 DECISIONS IN HARYANA ACRYLIC MANUFACTURING CO. VS. CIT 308 ITR 38; CIT VS. LOVELY EXPORTS 216 CTR 195 (S.C.); SARTHAK SECURITI ES CO. (P) LTD. VS. I.T.O. 329 ITR 110 (DEL.) & DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF GP INTERNATIONAL LTD. IN ITA NO.618 OF 2009 BESIDES DECISION DATED 21.1.2011 OF THE ITAT DELHI BENCH IN ACIT VS. DI VINE INDIA INFRASTRUCTURE PVT. LTD. IN ITA NO.886/DEL./2010; DECISION DATED 18.2.2 011 OF THE ITAT DELHI BENCH IN ACIT VS. DELHI TELECOM PVT. LTD. IN ITA NO.3117/ DEL./2010; DECISION DATED 12.5.2011 OF THE ITAT DELHI BENCH IN MADHAV TECH ( INDIA) PVT. LTD. IN ITA NO.1312/DEL./2010; DECISION DATED 20.5.2011 OF THE ITAT DELHI BENCH IN DCIT VS. NATRAJ ALBUM INDUSTRIES PVT. LTD. IN ITA NO.103 5/DEL./2009; DECISION DATED 10.6.2011 OF THE ITAT DELHI BENCH IN NAVEL DEAL CA PITAL & MANAGEMENT SERVICES LTD. IN ITA NO.916&917/DEL./10; DECISION D ATED 17.6.2011 OF THE ITAT DELHI BENCH IN ACIT VS. PVS MULTIPLEX (INDIA) PVT. LTD. IN ITA NO.2369/DEL./2010 & DECISION DATED 8.7.2011 OF THE ITAT DELHI BENCH IN ACIT VS. FAIR FINVEST LTD. IN ITA NO. 1794/DEL./2011.ON THE OTHER HAND, THE LD . DR WHILE RELYING UPON THE DECISIONS IN PHOOL CHAND BAJRANG LAL AND ANOTHER VS . ITO & ANOTHER,203 ITR 456 (SUPREME COURT), RAYMOND WOOLLEN MILLS LIMITED. VS. ITO & OTHERS,236 ITR 34(SUPREME COURT) AND S, . NARAYANAPPA AND OTHERS. VS. CIT, 63 ITR219(SC) CONTENDED THAT THE AO WAS JUSTIFIED IN REOPENING TH E ASSESSMENT. TO A QUERY BY THE BENCH, THE LD. DR CARRIED US THROUGH THE FINDI NGS OF THE LD. CIT(A), EXTRACTED IN PARA 3 ABOVE ,UPHOLDING THE REOPENING OF THE AS SESSMENT. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE AS ALSO THE DECISIONS RELIED UPON BY BOTH THE SIDES. AS IS APPARENT FROM THE FACTS NARRATED IN THE IMPUGNED OR DERS AND THE REASONS RECORDED BY THE AO BEFORE REOPENING THE ASS ESSMENT, THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION IN THIS CASE WAS INITIALLY COMPLETED ON 30.3.2005 ON AN INCOME OF ` 72,18,779.DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE AO RAISE D A SPECIFIC QUERY WITH REGARD TO SHARE APPLICATION MONEY OF ` 4,82,01,000/- AND I.T.A. NO.2941/D/2010 7 AFTER NECESSARY ENQUIRIES, ADDED ONLY AN AMOUNT OF ` 42,00,000/- U/S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED SHARE APPLI CATION MONEY. ON APPEAL, THE LD. CIT(A) DELETED THE ADDITION TO T HE EXTENT OF ` 37,00,000/-.THEREAFTER, THE SAID ASSESSMENT HAS BE EN REOPENED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF RELE VANT ASSESSMENT YEAR WITH THE ISSUE OF A NOTICE U/S 148 OF THE ACT ON 25.3.2009. NO OMISSION OR FAILURE ON THE PART OF THE ASSESSEE HA S BEEN ATTRIBUTED IN RELATION TO DISCLOSURE OF MATERIAL FACTS, FULLY AND TRULY, RELATING TO THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION IN THE AFORESAID REASONS RECORDED BY THE AO NOR THE LD. DR ASCRIBED ANY SUCH FAILURE TO THE ASSESSEE, BEFORE US. WE FIND THAT T HE FACTS MENTIONED IN THE AFORESAID REASONS WERE AVAILABLE WITH THE AO EVEN AT THE TIME OF FINALIZING THE INITIAL ASSESSMENT COMPLETED U/S 143(3) OF THE ACT ON 30.3.2005, ESPECIALLY WHEN STATEMENT OF SHRI DEE PAK GUPTA WAS RECORDED AS EARLY AS ON 25.9.2004.THE LD. AR POINTE D OUT THAT AN AMOUNT OF ` 3,59,85,000/- HAD BEEN REFUNDED TO THE APPLICANTS. ON THE BASIS OF SAME MATERIAL, IF THE AO TAKES A DIFFE RENT VIEW SUBSEQUENTLY, AFTER EXPIRY OF 4 YEARS FROM THE END OF THE ASSESSMENT YEAR, THAT WOULD NOT CONFER ANY JURISDIC TION ON THE AO TO ISSUE NOTICE U/S 148 OF THE ACT. THE SCOPE AND EFFE CT OF SECTION 147 AS SUBSTITUTED WITH EFFECT FROM APRIL 1, 1989, AS A LSO SECTIONS 148 TO 152 ARE SUBSTANTIALLY DIFFERENT FROM THE PROVISIONS AS THEY STOOD PRIOR TO SUCH SUBSTITUTION. UNDER THE OLD PROVISION S OF SECTION 147, SEPARATE CLAUSES (A) AND (B) LAID DOWN THE CIRCUMST ANCES UNDER WHICH INCOME ESCAPING ASSESSMENT FOR THE PAST ASSES SMENT YEARS COULD BE ASSESSED OR REASSESSED. TO CONFER JURISDIC TION UNDER SECTION 147(A) TWO CONDITIONS WERE REQUIRED TO BE S ATISFIED- FIRSTLY THE AO MUST HAVE REASON TO BELIEVE THAT INCOME, PRO FITS OR GAINS CHARGEABLE TO INCOME TAX HAVE ESCAPED ASSESSMENT, A ND SECONDLY HE MUST ALSO HAVE REASON TO BELIEVE THAT SUCH ESCAP EMENT OCCURRED DUE TO REASON OF EITHER OMISSION OR FAILU RE ON THE PART OF I.T.A. NO.2941/D/2010 8 THE TAXPAYER TO DISCLOSE FULLY OR TRULY ALL MATERIA L FACTS NECESSARY FOR HIS ASSESSMENT OF THAT YEAR. BOTH THESE CONDITIONS WERE CONDITIONS PRECEDENT TO BE SATISFIED BEFORE THE AO COULD HAVE JURISDICTION TO ISSUE NOTICE UNDER SECTION 148 READ WITH SECTION 14 7(A).BUT UNDER THE SUBSTITUTED SECTION 147, EXISTENCE OF ONLY THE FIRST CONDITION SUFFICES. IN OTHER WORDS IF THE ASSESSING OFFICER F OR WHATEVER REASON HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSES SMENT IT CONFERS JURISDICTION TO REOPEN THE ASSESSMENT. HOWE VER, BOTH THE CONDITIONS MUST BE FULFILLED IF THE CASE FALLS WITH IN THE AMBIT OF THE PROVISO TO SECTION 147. SINCE IN THE CASE UNDER CO NSIDERATION, NOTICE U/S 148 HAD BEEN ISSUED ONLY ON 25.3.2009 TH AT IS AFTER FOUR YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR, APP ARENTLY, THE ISSUE THAT ARISES FOR OUR CONSIDERATION IS AS TO WH ETHER THERE WAS ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOS E MATERIAL FACTS? NO SUCH FAILURE IS EITHER EVIDENT FROM THE IMPUGNE D ORDER OR THE REASONS RECORDED BY THE AO NOR HAS BEEN POINTED OU T BEFORE US BY THE LD. DR. INDISPUTABLY, THE AO CHOSE TO REOPEN TH E ASSESSMENT COMPLETED U/S 143(3) OF THE ACT AFTER RECORDING REA SONS, WHEREIN NO SUCH FAILURE AS HAS BEEN ENVISAGED IN PROVISO TO S EC. 147 OF THE ACT, HAS BEEN ATTRIBUTED TO THE ASSESSEE. IN RAKESH AGGARWAL V. ASST. CIT [1997] 225 ITR 496, HONBLE DELHI HIGH CO URT HELD THAT IN VIEW OF THE PROVISO TO SECTION 147, NOTICE FOR REAS SESSMENT UNDER SECTION 148 WOULD BE ILLEGAL IF ISSUED MORE THAN FO UR YEARS AFTER THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS FAILURE IS ASCRIBED TO THE ASSESSEE IN DISCLOSING FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. HONBLE GUJRAT HIGH COURT WHILE A DJUDICATING A SIMILAR ISSUE HELD IN SHREE THARAD JAIN YUVAK MANDA L V. ITO [2000] 242 ITR 612 AS UNDER: A PERUSAL OF THE AFORESAID PROVISION GOES TO SHOW T HAT UNDER THE PROVISO TO SECTION 147, THE FOUNDATION OF CONFERRIN G JURISDICTION ON THE ASSESSING OFFICER TO ASSESS OR REASSESS THE INC OME FOR ANY ASSESSMENT YEAR BEYOND THE END OF FOUR YEARS FROM T HE END OF I.T.A. NO.2941/D/2010 9 RELEVANT ASSESSMENT YEAR MUST BE OMISSION OR FAILUR E ON THE PART OF AN ASSESSEE TO MAKE A RETURN UNDER SECTION 139 FOR ANY ASSESSMENT YEAR OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FA CTS NECESSARY FOR HIS ASSESSMENT FOR THAT YEAR AND THAT THE INCOME-TAX OF FICER HAS REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ES CAPED ASSESSMENT FOR THAT YEAR. IN THE ABSENCE OF ANY SUC H OMISSION OR FAILURE ON THE PART OF THE ASSESSEE, TAKING ACTION FOR ASSESSMENT OR REASSESSMENT IS NOT PERMISSIBLE FOR ANY YEAR AFTER THE EXPIRY OF FOUR YEARS FROM THE RELEVANT ASSESSMENT YEAR. THE SCOPE OF THE ASSESSEE'S DUTY TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT IN THE CONT EXT OF THE PROVISIONS OF SECTION 34 OF THE INDIAN INCOME-TAX A CT, 1922, HAS BEEN SUCCINCTLY STATED BY THE SUPREME COURT BY THEI R LORDSHIPS IN CALCUTTA DISCOUNT CO. LTD. V. ITO [1961] 41 ITR 191 . THE COURT OBSERVED: 'THERE CAN BE NO DOUBT THAT THE DUTY OF DISCLOSING ALL THE PRIMARY FACTS RELEVANT TO THE DECISION OF THE QUESTION BEFORE THE ASSESSING AUTHORITY LIES ON THE ASSESSEE.' THE COURT FURTHER SAID: 'DOES THE DUTY, HOWEVER, EXTEND BEYOND THE FULL AND TRUTHFUL DISCLOSURE OF ALL PRIMARY FACTS? IN OUR OPINION, THE ANSWER TO TH IS QUESTION MUST BE IN THE NEGATIVE. ONCE ALL THE PRIMARY FACTS ARE BEFORE THE ASSESSING AUTHORITY, HE REQUIRES NO FURTHER ASSISTANCE BY WAY OF DISCLOSURE. IT IS FOR HIM TO DECIDE WHAT INFERENCES OF FACTS CAN BE REASO NABLY DRAWN AND WHAT LEGAL INFERENCES HAVE ULTIMATELY TO BE DRAWN. IT IS NOT FOR SOMEBODY ELSE- FAR LESS THE ASSESSEE-TO TELL THE ASSESSING AUTHORI TY WHAT INFERENCES, WHETHER OF FACTS OR LAW, SHOULD BE DRAWN.' 5.1 AGAIN IN THE CASE OF PATIDAR OIL CAKE INDUSTR IES VS. DCIT, 270 ITR 347(GUJ), HONBLE GUJRAT HIGH COURT HELD IN THE LIGHT OF THE FACT THAT THE ASSESSMENTS H AVE BEEN SOUGHT TO BE REOPENED AFTER A PERIOD OF FOUR YEARS FROM THE E ND OF EACH OF THE ASSESSMENT YEARS IN QUESTION, THE PROVISIONS OF SEC TION 147 OF THE ACT MANDATE THAT THE ASSESSING OFFICER SHALL BE VES TED WITH THE JURISDICTION TO INITIATE REASSESSMENT PROCEEDINGS O NLY IN CASE THERE IS ANY OMISSION OR FAILURE ON THE PART OF THE ASSES SEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR TH E ASSESSMENT FOR THE YEAR UNDER CONSIDERATION AND SUCH FAILURE SHOULD RE SULT IN INCOME CHARGEABLE TO TAX ESCAPING ASSESSMENT. ON A PLAIN R EADING OF THE AFORESAID PROVISIONS AND THE REASONS RECORDED, IT B ECOMES CLEAR THAT THERE CANNOT BE ASCRIBED ANY FAILURE OR OMISSI ON TO THE PETITIONER SO AS TO VEST THE ASSESSING OFFICER WITH JURISDICTION TO REOPEN THE ASSESSMENTS WHICH WERE ALREADY FINALISED . IN THE CIRCUMSTANCES, FOR THE ASSESSMENT YEARS 1986-87, 19 87-88 AND I.T.A. NO.2941/D/2010 10 1988-89 IN THE LIGHT OF THE FACT THAT THE INITIATIO N BY ISSUANCE OF IMPUGNED NOTICES IS BEYOND THE PERIOD OF FOUR YEARS AND THE PREREQUISITE CONDITIONS STIPULATED BY SECTION 147 O F THE ACT ARE NOT FULFILLED, THERE IS NO CASE MADE OUT FOR UPHOLDING THE PROPOSED REASSESSMENT. THE NOTICES FOR ALL THE FOUR YEARS AR E, THEREFORE, BAD IN LAW AND ARE QUASHED AND SET ASIDE. 5.2 IN THE CASE OF DEVIDAYAL ROLLING MILLS & A NOTHER VS. Y.R.SAINI,ACIT,285 ITR 514,HONBLE BOMBAY HIGH COUR T HELD THAT WHERE AN ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT IS SOUGHT TO BE REOPENED BEYOND FOUR YEARS FROM THE END OF RE LEVANT ASSESSMENT YEAR, THE REVENUE MUST ESTABLISH THAT TH ERE WAS FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND T RULY ALL MATERIAL FACTS RELEVANT FOR THE PURPOSES OF THE ASSESSMENT. 5.3 IN THE CASE OF MERCURY TRAVELS LTD. VS. DCIT & ANOTHER,258 ITR 533(CAL.), HONBLE HIGH COURT IN THE LIGHT OF FACTS OF THE CASE CONCLUDED THAT NO INCOME CHARGEABLE TO TAX HAD ESCA PED ASSESSMENT FOR THOSE ASSESSMENT YEARS DUE TO FAILUR E OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR ITS ASSESSMENT. 5.4 IN PRIYANKA CARBON & CHEMICAL INDUSTRIES ( P) LTD. VS. DCIT (2008) 15 DTR (GUJ.) 31, HONBLE HIGH COURT HELD T HAT WHEN FACTUAL DATA WAS AVAILABLE WITH THE AO AT THE TIME OF ASSES SMENT, ON THE SAME VERY MATERIAL, IF THE AO TAKES A DIFFERENT VIE W SUBSEQUENTLY AND THAT TOO AFTER EXPIRY OF FOUR YEARS FROM THE EN D OF THE RELEVANT ASSESSMENT YEAR, THAT WOULD NOT CONFER ANY JURISDIC TION ON THE AO TO ISSUE NOTICE U/S 148 OF THE ACT. SIMILAR VIEW WAS T AKEN IN ACIT VS. JAGDISHBHAI NANUBHAI TEKRAWALA (2008) 12 DTR (GUJ) 270, 5.5 IN VARELI WEAVERS PVT. LTD. VS. DCIT (1999) 240 ITR 77 (GUJ) ALSO NOTICES UNDER SECTION 148 READ WITH SECTION 14 7 OF THE ACT WERE I.T.A. NO.2941/D/2010 11 QUASHED BY THE HONBLE HIGH COURT, THERE BEING NO W HISPER IN THE REASONS RECORDED BY THE AO ABOUT FAILURE ON THE PAR T OF THE ASSESSEE TO DISCLOSE TRULY AND FULLY ALL MATERIAL F ACTS . 5.6 IN CIT VS. DCM LTD.,(2009) 24 DTR(DEL.) 72,H ONBLE JURISDICTIONAL HIGH COURT FOUND THAT THERE WAS NO ALLEGATION IN THE REASONS RECORDED BY THE AO THAT THE ASSESSEE HAD FA ILED TO FILE ITS RETURN OR THAT IT HAD FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS IN ITS RETURN NOR WAS THERE ANY ALLEGATION B Y THE ASSESSING OFFICER THAT THE ASSESSEE HAD FAILED TO DISCLOSE F ULLY AND TRULY ALL MATERIAL FACTS IN ITS RETURN OF INCOME NOR EVEN THE RE WAS ANY ALLEGATION REGARDING ESCAPEMENT OF INCOME. IN THESE CIRCUMSTANCES,HONBLE HIGH COURT UPHELD THAT FINDIN GS OF THE TRIBUNAL THAT NOTICE U/S 148 OF THE ACT ,HAVING BEE N ISSUED AFTER FOUR YEARS, THE REOPENING OF THE ASSESSMENT WAS NOT VALI D. 5.7 IN CIT & ANOTHER VS. FORAMER FRANCE, 264 ITR 566 (SC),HONBLE APEX COURT UPHELD THE ORDER OF THE HON BLE DELHI HIGH COURT IN CONCLUDING THAT WHEN THERE WAS ADMITTEDLY NO FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN OR TO DISCLOS E FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT, TH E PROVISO TO THE NEW SECTION 147 OF THE ACT SQUARELY APPLIED, AND TH E IMPUGNED NOTICES WERE BARRED BY LIMITATION MENTIONED IN THE PROVISO. 5.8 IN SUPREME TRAVELS (P) LTD. VS. DCIT, 182 TAXMAN 216(BOM.), HONBLE BOMBAY HIGH COURT HELD THAT THE ASSESSING OFFICER CAN REOPEN THE ASSESSMENT ONLY IF THE INGRE DIENTS OF SECTION 147 ARE FULFILLED. 5.9 IN GUJARAT CARBON AND INDUSTRIAL LTD. VS. JT. CIT [2008] 307 ITR 271 (GUJ),HONBLE HIGH COURT IN THE ABSENCE OF ANY FAILURE ON PART I.T.A. NO.2941/D/2010 12 OF THE ASSESSEE TO FULLY AND TRULY DISCLOSE ALL MAT ERIAL FACTS RELEVANT FOR THE ASSESSMENT OF THE ASSESSMENT YEAR IN QUESTION, CONC LUDED THAT THE IMPUGNED NOTICE UNDER S. 148 ISSUED BEYOND A PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, IS REQUIRED TO BE QUASHED . 5.10 LIKEWISE IN GUJRAT FLUOROCHEMICALS LTD. VS . DCIT [2009] 319 ITR 282 (GUJ), HONBLE HIGH COURT CONCLUDED THAT THE ASSESSEE HAVING MADE FULL DISCLOSURE OF MATERIAL FACTS IN TH E RETURN WHICH WAS ACCOMPANIED BY SEVERAL ENCLOSURES, ASSESSMENT COULD NOT BE REOPENED BEYOND FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR FOR THE REASON THAT CERTAIN INCOME HAS BEEN WRONGLY ASSESSED UNDER THE HEAD CAPITAL GAINS INSTEAD OF PROFITS AND GAINS OF BUSINESS OR PROFE SSION. 5.11 IN NIKHIL K KOTAK VS. MAHESH KUMAR , AO [2009] 319 ITR 445 (GUJ) ALSO IT WAS HELD THAT IN THE ABSENCE OF ANY A VERMENT OF THE REVENUE THAT THERE WAS ANY OMISSION OR FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS RELEVANT FOR THE ASSES SMENT OF THE ASSESSMENT YEAR IN QUESTION, IMPUGNED NOTICE UNDER S. 148 ISSUED BEYON D A PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IS BAD IN LAW AND WITHOUT JURISDICTION. 5.12 IN CADILA HEALTHCARE LTD. VS. DY. CIT [2010] 41 DTR 145 (GUJ), HONBLE HIGH COURT CONCLUDED THAT IN THE AB SENCE OF ANY AVERMENT IN THE REASONS RECORDED BY THE AO FOR REOP ENING THE ASSESSMENT THAT THE PETITIONER HAS FAILED TO DISCLOSE FULLY AND TRU LY ANY MATERIAL FACT NECESSARY FOR ITS ASSESSMENT FOR THE YEAR UNDER CONSIDERATION OR ANY NEW MATERIAL OR FACTS COMING TO THE NOTICE OF THE AO LEADING TO THE CONCL USION THAT INCOME HAD ESCAPED ASSESSMENT, THE INGREDIENTS OF THE PROVISO TO S. 147 ARE NOT SATISFIED AND, THEREFORE, ENTIRE PROCEEDINGS UNDER S. 147 INI TIATED PURSUANT TO THE IMPUGNED NOTICE AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR WERE WITHOUT JURISDICTION AND CANNO T BE SUSTAINED. I.T.A. NO.2941/D/2010 13 5.13 IN MIHIR TEXTILES LTD. VS. JT. CIT [2010] 4 3 DTR 11 (GUJ),HONBLE HIGH COURT HELD THAT THE PETITIONER HAVING SUBMITTED AUDITED BOOKS OF ACCOUNTS, P&L A/C, AND BALANCE SHE ET ALONG WITH NOTES AND ALSO MADE A SPECIFIC DISCLOSURE IN THE FORM OF A NOTE RE GARDING TRANSFER OF ITS UNDERTAKING, IT CANNOT BE SAID THAT THE PETITIONER IS GUILTY OF NOT MAKING FULL AND TRUE DISCLOSURE AND, THEREFORE, NOTICE UNDER S. 148 ISSUED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IS QUASHED AND SET ASIDE. 5.14 IN HARYANA ACRYLIC MANUFACTURING CO.(SUPRA), RELIED UPON BY THE LD. AR, HONBLE JURISDICTIONAL HIGH COURT, INTE R ALIA, CONCLUDED AS UNDER: 20. IN THE REASONS SUPPLIED TO THE PETITIONER , THERE IS NO WHISPER, WHAT TO SPEAK OF ANY ALLEGATION, THAT THE PETITIONER HAD FA ILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THAT BE CAUSE OF THIS FAILURE THERE HAS BEEN AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX. MERELY HAVING A REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT, IS NOT SUFFICIENT TO REOPEN ASSESSMENTS BEYOND THE FOUR YEAR PERIOD INDICATED A BOVE. THE ESCAPEMENT OF INCOME FROM ASSESSMENT MUST ALSO BE OCCASIONED BY T HE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FACTS, FULLY AND TRULY. THIS IS A NECESSARY CONDITION FOR OVERCOMING THE BAR SET UP BY THE PROV ISO TO SECTION 147. IF THIS CONDITION IS NOT SATISFIED, THE BAR WOULD OPERATE A ND NO ACTION UNDER SECTION 147 COULD BE TAKEN. WE HAVE ALREADY MENTIONED ABOVE THA T THE REASONS SUPPLIED TO THE PETITIONER DOES NOT CONTAIN ANY SUCH ALLEGATION . CONSEQUENTLY, ONE OF THE CONDITIONS PRECEDENT FOR REMOVING THE BAR AGAINST T AKING ACTION AFTER THE SAID FOUR YEAR PERIOD REMAINS UNFULFILLED. IN OUR RECENT DECI SION IN WEL INTERTRADE (P.) LTD.',308 ITR 33(DEL.) WE HAD AGREED WITH THE VIEW TAKEN BY THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF DULI CHAND SINGHA NIA,269 ITR 192 THAT, IN THE ABSENCE OF AN ALLEGATION IN THE REASONS RECORDED TH AT THE ESCAPEMENT OF INCOME HAD OCCURRED BY REASON OF FAILURE ON THE PART OF TH E ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSME NT, ANY ACTION TAKEN BY THE ASSESSING OFFICER UNDER SECTION 147 BEYOND THE FOUR YEAR PERIOD WOULD BE WHOLLY WITHOUT JURISDICTION. REITERATING OUR VIEWPOINT, WE HOLD THAT THE NOTICE DATED 29-3- 2004 UNDER SECTION 148 BASED ON THE RECORDED REASON S AS SUPPLIED TO THE PETITIONER AS WELL AS THE CONSEQUENT ORDER DATED 2- 3-2005 ARE WITHOUT JURISDICTION AS NO ACTION UNDER SECTION 147 COULD BE TAKEN BEYON D THE FOUR YEAR PERIOD IN THE CIRCUMSTANCES NARRATED ABOVE . 6.. IN THE INSTANT CASE, AS IS APPARENT FROM T HE FACTS NARRATED IN THE IMPUGNED ORDERS, THE AO REOPENED THE ASSESSMENT COMPLETED I.T.A. NO.2941/D/2010 14 ON 30.3.2005 U/S 143(3) OF THE ACT MERELY ON THE BA SIS OF FACTS ALREADY AVAILABLE BEFORE HIM AT THE TIME OF ORIGINA L ASSESSMENT PROCEEDINGS. NOT EVEN A WHISPER IS EVIDENT FROM THE REASONS RECORDED OR THE FACTS NARRATED IN THE IMPUGNED ORDE RS AS TO WHETHER OR NOT THERE WAS ANY FAILURE ON THE PART OF THE ASS ESSEE IN DISCLOSING FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HI S ASSESSMENT. WE ARE OF THE OPINION THAT ANY SUCH FAILURE AS IS ENV ISAGED IN THE PROVISO TO SEC. 147 OF THE ACT, IS A MATTER OF FACT ALONE AND THERE CAN BE NO DEEMED FAILURE . IN THESE CIRCUMSTANCES , IN ABSENCE OF ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ITS ASSESSMENT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE NOTICE UNDER SECTION 148 O F THE ACT HAVING BEEN ISSUED AFTER THE EXPIRY OF A PERIOD OF FOUR YE ARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, THE VERY INITIATION O F PROCEEDINGS UNDER SECTION 147 OF THE ACT STANDS VITIATED AND AS SUCH CANNOT BE SUSTAINED, THE INGREDIENTS OF SECTION 147 HAVING NO T BEEN FULFILLED. IN VIEW OF THE FOREGOING, ESPECIALLY IN THE LIGHT O F CONSISTENT VIEW TAKEN IN AFORESAID DECISIONS OF THE HONBLE JURISD ICTIONAL HIGH COURT AND OTHER COURTS, CONSIDERING THE FACTS AND CIRCU MSTANCES OF THE CASE, WE ARE OF THE OPINION THAT THERE IS NOTHING TO SUGGEST THAT ALL THE PRIMARY FACTS WERE NOT DISCLOSED BY THE ASSESSE E AT THE TIME OF ORIGINAL ASSESSMENT NOR ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL THE MATERIAL FACTS HAS BEEN ASCRIBED IN THE CIRCUMSTANCES NARRATED BEFORE US. IT CANNOT BE SAID THAT THE ASSESSEE SUPPRESSED ANY MATERIAL FACTS. IT IS WEL L-SETTLED THAT IF A NOTICE UNDER SECTION 148 OF THE ACT HAS BEEN ISSUED WITHOUT THE JURISDICTIONAL FOUNDATION U/S 147 OF THE ACT BEING AVAILABLE TO THE AO, THE NOTICE AND THE SUBSEQUENT PROCEEDINGS WILL BE WITHOUT JURISDICTION AND THUS, LIABLE TO BE STRUCK DOWN . I N VIEW THEREOF, WE HAVE NO HESITATION IN VACATING FINDINGS OF THE LD. CIT(A) AND QUASH THE REASSESSMENT ORDER .CONSEQUENTLY, GROUND NO. 1 IN THE APPEAL I.T.A. NO.2941/D/2010 15 IS ALLOWED AS A COROLLARY, THE GROUND NOS. 2 TO 4 IN THE APPEAL OF THE ASSESSEE DO NOT SURVIVE FOR OUR ADJUDICATION AND ARE , THER EFORE, TREATED AS INFRUCTUOUS. 7. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFOR E US IN TERMS OF RESIDUARY GROUND IN THE APPEAL, ACCORDINGLY, THIS GROUND IS DISMISSED. 8. NO OTHER PLEA OR ARGUMENT WAS MADE BEFORE US. 9. IN THE RESULT, APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT SD/- SD/- ( RAJPAL YADAV ) (A.N. PA HUJA) JUDICIAL MEMBER ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO :- 1. SUREN INTERNATIONAL PVT. LTD.,1220, SECTOR-A, P OCKET -B, VASANT KUNJ, NEW DELHI 2. INCOME TAX OFFICER, WARD-9 (4), NEW DELHI. 3. CIT (APPEALS)-XII, NEW DELHI 4. THE CIT CONCERNED. 5. THE DR, ITAT,G BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI