Umesh Kumar Tyagi, Delhi V. ITO, Ward- 2(1), Ghaziabad

ITA 2978/DEL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8828 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 05-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Bogus purchase; Tangible material; Difference of opinion; Accommodation entries; Competent authority; Reason to believe; Change of opinion; Reassessment proceedings; Set aside; Capital Gains
• Section: 40A(3); 143(3); 143(2); 147; 148; 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 2978/DEL/2019 ASSESSMENT YEAR: 2010-11 UMESH KUMAR TYAGI, VS. ITO, WARD-2(1), C/O KAPIL GOEL, ADV. GHAZIABAD F-26/124, SECTOR-7, ROHINI, DELHI 110 085 (PAN: AFGPT9580F) (ASSESSEE) (RESPONDENT ASSESSEE BY : SHRI KAPIL GOEL, ADVOCATE REVENUE BY : SHRI PRADEEP SINGH GAUTAM, SR. DR. ORDER THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPU GNED ORDER DATED 31.01.2019 PASSED BY THE LD. CIT(A), GHAZIABAD ON T HE FOLLOWING GROUNDS:- 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, ACTION OF AO IN REOPENING OF THE CASE WHICH IS MADE IN VIOLATION OF MANDATORY JURISDICTIONAL CONDITIONS STIPULATED UNDER THE ACT IS BAD IN LAW AND CONSEQUENTLY ALL SUBSEQUENT PROCE EDINGS INCLUDING ORDERS PASSED BY THE AO AND CIT(A) ARE AL SO BAD IN LAW. 1.1 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, AS EVIDENT FROM ASSESSMENT ORDER CONTENTS AS NOWHER E LD AO COMMUNICATED REASONS TO BELIEVE WITH APPROVAL IF ANY IN PRESCRIBED FORMAT TO ASSESSEE PRIOR TO ASSESSMENT B EING COMPLETED WHICH NON SUPPLY MAKES ALL SUBSEQUENT PROCEEDINGS INCLUDING ORDERS PASSED BY LD AO AND LD CIT-A ARE ALSO BAD IN LAW 1.2 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, REOPENING BASED ON PROPERTY SALE INFORMATION AS KNO WN FROM ASSESSMENT ORDER CANNOT GIVE RISE TO VALID REASONS TO BELIEVE FOR INCOME ESCAPING ASSESSMENT SO ENTIRE FOUNDATION IS INVALID AND ALL PROCEEDINGS ARE BAD IN LAW,' 2 1.3 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THERE IS NO COHERENCE IN REOPENING GROUND STATED IN ASSESSMENT ORDER AND ASSESSMENT OF CAPITAL GAINS MA DE FINALLY WHICH MAKES ENTIRE FOUNDATION IS INVALID AN D ALL PROCEEDINGS ARE BAD IN LAW; 1.4 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, SINCE NO VALID NOTICE ULS 143(2) IS ISSUED DURING A SSESSMENT PROCEEDINGS AS EVIDENT FROM ASSESSMENT ORDER ENTIRE ASSESSMENT MADE U/S 143(3)/147 FALTERS AND SO ALL PROCEEDINGS ARE BAD IN LAW; 1.5 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, NOTICE ISSUED U/S 148 DATED 30.03.2017 IS VOID AB I NITIO AND IS WITHOUT VALID JURISDICTION AND AUTHORITY OF LAW AND IT MAKES ALL SUBSEQUENT PROCEEDINGS INCLUDING ORDERS PASSED BY LD A 0 AND ARE ALSO BAD IN LAW, 2. THAT ON FACTS AND 'CIRCUMSTANCES OF THE CASE AND IN LAW, LD CIT-A ERRED IN CONFIRMING THE ADDITION OF RS 48, 14,839 AS LONG TERM CAPITA L GAINS WITHOUT APPRECIATING THAT ASSESSEE HAS NO WHERE SOLD THE PROPERTY IN QUESTION AND HAS SIMPLY REED HIS SHARE IN AMOUNT TO BE OBTAINED BY HIS FATH ER WHICH IS AMOUNT RECD BY WAY OF INHERITANCE/WILL AND IN CONTEMPLATION OR DEATH OF PRAYER (FATHER) AS EXEMP TED U/S 56 FROM TAXATION AND SO CAPITAL GAINS ASSESSED ON A SSESSEE TREATING ASSESSEE AS A CO-SELLER BY LD A OICIT-A IS BASED ON HYPOTHETICAL ASSUMPTION AND IS PERVERSE FINDING AND THEREFORE ALSO FRUSTRATES THE REOPENING MADE ON NON EXISTING AND FACTUALLY INCORRECT REASONS. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD CIT-A ERRED IN CONFIRMING THE ADDITION OF RS 48, 14,839 AS LONG TERM CAPITAL GAINS WITHOUT APPRECIATING THAT N ONE OF THE CONTENTION IS APPRECIATED IN OBJECTIVE MANNER BY LD AO/LD CIT-A AND ENTIRE ADDITION IS MADE AGAINST THE BASIC PRINCIPLES OF LAW. 2. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE ONLY ARGUED THE LEGAL GROUND NO. 1.5 WHICH IS REPRODUCED AGAIN HERE UNDER:- 1.5 THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, NOTICE ISSUED U/S. 148 DATED 30.3.2017 IS VOID AB INITIO AND IS WITHOUT VALID JURISDICTION AND AUTHORITY OF LAW AND IT MAKES ALL SUBSEQUENT PROCEEDINGS INCLUDING 3 ORDERS PASSED BY AO AND LD. CIT(A) ARE ALSO BAD IN LAW. 2.1 IN THIS REGARD, HE DREW MY ATTENTION TOWARDS COLUMN NO. 12 MENTIOEND IN THE COPY OF REASONS RECORDED BY THE AO AND APPR OVAL GRANTED BY THE JCIT, WHEREIN, THE AO HAS ERRED IN ASSUMPTION OF JURISDIC TION U/S. 147/148 OF THE ACT ON THE BASIS OF INVALID AND MECHANICAL APPROVAL AS EVIDENT FROM CURSORY LOOK TO REASONS FORMAT AS MERE ENDORSEMENT IN COLUMN NO. 12 WAS MADE AS YES, I AM SATISFIED THAT IT IS A FIT CASE FOR ISSUE OF NOTICE U/S. 148, WHICH SHOWS THAT LD. JCIT HAS NOT RECORDED PROPER SATISFACTION AFTER DUE APPLICATION OF MIND AND GAVE THE APPROVAL IN A MECHANICAL MANNER. HE FURTHER ST ATED THAT THIS LEGAL GROUND IS SQUARELY COVERED BY THE DECISION OF THE ITAT, SM C, BENCH, NEW DELHI DATED 26.9.2019 IN THE CASE OF KRISHNA PRINT PACK, MEERUT VS. ITO, WARD 1(3), MEERUT DECIDED IN ITA NO. 5135/DEL/2018 RELEVANT T O ASSESSMENT YEAR 2009- 10 AND THEREFORE, HE REQUESTED THAT THE SAME RATIO MAY BE FOLLOWED IN THE PRESENT CASE AND APPEAL OF THE ASSESSEE MAY BE ALLO WED ACCORDINGLY BY QUASHING THE REASSESSMENT PROCEEDINGS. 3. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A) AND ALSO RELIED UPON THE FOLLOWING CASE LAWS AND REQUESTED T HAT THE SAME MAY KINDLY BE CONSIDERED WITH REGARD TO REOPENING OF CASES U/S. 1 47 OF THE I.T. ACT. 1. RAYMOND WOOLLEN MILLS LTD. V. ITO AND OTHERS [2 36 ITR 341 (COPY ENCLOSED) WHERE HONBLE SUPREME COURT HEL D THAT IN DETERMINING WHETHER COMMENCEMENT OF REASSESSMENT PROCEEDINGS WAS VALID IT HAS ONLY TO BE SEEN WHETHE R THERE WAS PRIMA FACIE SOME MATERIAL ON THE BASIS OF WHICH THE DEPARTMENT COULD REOPEN THE CASE. THE SUFFICIENCY O R CORRECTNESS OF THE MATERIAL IS NOT A THING TO BE CO NSIDERED AT THIS STAGE. 2. YUVRAJ V. UNION OF INDIA BOMBAY HIGH COURT [200 91 315 ITR 84 (BOMBAY)/R20091 225 CTR 283 (BOMBAY) POINTS NOT DECIDED WHILE PASSING ASSESSMENT ORDER UNDER SE CTION 143(3) NOT A CASE OF CHANGE OF OPINION. ASSESSMENT REOPENED VALIDLY. 3. DEVI ELECTRONICS PVT LTD VS ITO BOMBAY HIGH COU RT 2017-TIQL-92-HC-MUM- II 4 THE LIKELIHOOD OF A DIFFERENT VIEW WHEN MATERIALS E XIST OF FORMING A REASONABLE BELIEF OF ESCAPED INCOME, WILL NOT DEBAR THE AO FROM EXERCISING HIS JURISDICTION TO AS SESS THE ASSESSEE ON REOPENING NOTICE.. 4. ACORUS UNITECH WIRELESS (P.) LTD. VS ACIT DELHI HIGH COURT T20141 43 TAXMANN.COM 62 (DELHI)/R20141 223 TAXMAN 181 (DELHI)(MAG)/R20141 362 ITR 417 (DELHI) IN TERMS OF SECTION 148, LAW ONLY REQUIRES THAT INFORMATION OR MATERIAL ON WHICH ASSESSING OFFICER RECORDS HIS OR HER SATISFACTION HAS TO BE COMMUNICATED TO ASSESSEE, WITHOUT MANDATING DISCLOSURE OF ANY SPECIFIC DOCUMENT. 5. PCIT, VS PARAMOUNT COMMUNICATION (P.) LTD. DEL HI HIGH COURT [20171 79 TAXMANN.COM 409 (DELHI)/R20171 392 ITR 444 (DELHI) INFORMATION REGARDING BOGUS PURCHASE BY ASSESSEE RECEIVED BY DRI FROM CCE WHICH WAS PASSED ON TO REVENUE AUTHORITIES WAS 'TANGIBLE MATERIAL OUTSIDE RECORD TO INITIATE VALID REASSESSMENT PROCEEDINGS. 6. PARAMOUNT COMMUNICATION (P.) LTD. VS PCIT SUPR EME COURT 2017-TIQL-253- SC-IT SLP OF ASSESSEE DISMISSED. INFORMATION REGARDING BO GUS PURCHASE BY ASSESSEE RECEIVED BY DRI FROM CCE WHICH WAS PASSED ON TO REVENUE AUTHORITIES WAS TANGIBLE MATERIAL OUTSIDE RECORD TO INITIATE VALID REASSESS MENT PROCEEDINGS. 7. AMIT POLYPRINTS (P.) LTD. VS PCIT GUJARAT HIGH COURT T2018L 94 TAXMANN.COM 393 (GUJARAT) WHERE REASSESSMENT PROCEEDINGS WERE INITIATED ON BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING THAT ASSESSEE HAD RECEIVED CERTAIN AMOUNT FROM SHEL L COMPANIES WORKING AS AN ACCOMMODATION ENTRY PROVIDER, REASSESSMENT COULD NOT BE HELD UNJUSTIFIE D. 8. AASPAS MULTIMEDIA LTD. VS PCIT GUJARAT HIGH CO URT T20171 83 TAXMANN.COM 82 (GUJARAT) WHERE REASSESSMENT WAS MADE ON BASIS OF INFORMATION RECEIVED FROM PRINCIPAL DIT (INVESTIGAT ION) THAT ASSESSEE WAS BENEFICIARY OF ACCOMMODATION ENTR IES BY WAY OF SHARE APPLICATION PROVIDED BY A THIRD PAR TY, SAME WAS JUSTIFIED. 9. MURLIBHAI FATANDAS SAWLANI VS ITO GUJARAT HIGH COURT 2016-TIQL-370-HC- AHM-IT IT IS NOT OPEN TO THE ASSESSEE TO OBJECT TO THE REOPENING BY ASKING THE AO TO PRODUCE THE SOURCE FR OM 5 WHERE THE AO HAS GATHERED THE INFORMATION FOR FORMI NG A BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. 10. ANKIT AQROCHEM (P.) LTD. VS JCIT RAJASTHAN HIG H COURT [2018] 89 TAXMANN.COM 45 (RAJASTHAN) WHERE DIT INFORMED THAT ASSESSEE-COMPANY HAD RECEIVED SHARE APPLICATION MONEY FROM SEVERAL ENTIT IES WHICH WERE ONLY ENGAGED IN BUSINESS OF PROVIDING BO GUS ACCOMMODATION ENTRIES TO BENEFICIARY CONCERNS, REASSESSMENT ON BASIS OF SAID INFORMATION WAS JUSTI FIED. 11. RAKESH GUPTA VS CIT P&H HIGH COURT F20181 93 TAXMANN.COM 271 (PUNJAB & HARYANA) WHERE ASSESSING OFFICER RECEIVED INFORMATION FROM PRINCIPLE DIRECTOR OF INCOME TAX (INVESTIGATION) TH AT ASSESSEE HAD RECEIVED BOGUS LOSS FROM HIS BROKER BY CLIENT CODE MODIFICATION, REASSESSMENT ON BASIS OF SAID INFORMATION WAS JUSTIFIED. 12. HOME FINDERS HOUSING LTD. VS. ITO (2018) 94 TAXMANN.COM 84 (SC). SLP DISMISSED AGAINST HIGH COURTS ORDER THAT NON-COMPLIANCE OF DIRECTION OF SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. VS. I TO (2002) 125 TAXMAN 963 THAT ON RECEIPT OF OBJECTION GIVEN BY ASSESSEE TO NOTICE UNDER SECTION 148, ASSESSING OFFICER IS BOUND TO DISPOSE OBJECTIONS BY PASSING A SPEAKING ORDER, WOULD NOT MAKE REASSESSME NT ORDER VOID AB INITIO. 13. BALDEVBAHI BHIKHABHAI PATEL VS. DCIT (GUJARAT H IGH COURT) (2018) 94 TAXMANN.CO, 428(GUJARAT) WHERE REVENUE PRODUCED BUNCH OF DOCUMENTS TO SUGGEST THAT ENTIRE PROPOSAL OF REOPENING OF ASSESS MENT ALONGWITH REASONS RECORDED BY THE ASSESSING OFFICER FOR SAME WERE PLACED BEFORE ADDITIONAL COMMISSIONER WHO , UPON PERUSAL OF SAME, RECORDED HIS SATISFACTION THA T IT WAS A FIT CASE FOR ISSUANCE OF NOTICE FOR REOPENING ASSESSMENT, REASSESSMENT NOTICE ISSUED AGAINST ASSESSEE WAS JUSTIFIED. 6 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, THE IMPUGNED ORDER AS WELL AS THE CASE LAWS RELIED BY BOTH THE PARTIES, COPY OF FORM FOR RECORDING THE REASONS FOR INITIATING PROCEEDINGS U/ S. 147 AND FOR OBTAINING THE APPROVAL OF THE ADDL./JOINT COMMISSIO NER OF INCOME TAX AND ESPECIALLY THE COLUMN NO. 12 WHEREIN, THE LD . JOINT COMMISSIONER OF INCOME TAX WHILE GRANTING APPROVAL FOR ISSUE OF NO TICE U/S. 148 OF THE ACT HAS ONLY MENTIONED YES, I AM SATISFIED THAT IT IS A F IT CASE FOR ISSUE OF NOTICE U/S. 148, WHICH ESTABLISH THAT THE APPROVING AUTHORITY HAS GIVEN APPROVAL TO THE REOPENING OF ASSESSMENT WITHOUT RECORDING SATISFACT ION AND WITHOUT APPLICATION OF MIND, THEREFORE, ON THIS ACCOUNT THE REASSESSMEN T IS NOT SUSTAINABLE IN THE EYES OF LAW AND NEEDS TO BE QUASHED. 4.1 I HAVE ALSO PERUSED THE DECISION REFERRED BY TH E LD. COUNSEL FOR THE ASSESSEE OF THE DECISION OF THE ITAT, SMC, BENCH, N EW DELHI DATED 26.9.2019 IN THE CASE OF KRISHNA PRINT PACK, MEERUT VS. ITO, WA RD 1(3), MEERUT DECIDED IN ITA NO. 5135/DEL/2018 RELEVANT TO ASSESSMENT YEAR 2 009-10 WHEREIN, THE SIMILAR AND IDENTICAL LEGAL ISSUE HAS BEEN ADJUDI CATED AND DECIDED IN FAVOUR OF THE ASSESSEE. FOR THE SAKE OF CONVENIENCE, THE REL EVANT PORTION OF THE FINDINGS OF THE TRIBUNAL ARE REPRODUCED AS UNDER:- 10. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BEL OW. I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND THE ASSESSING OFFICER REOPENED THE ASSESSMENT BY RECORD ING THE FOLLOWING REASONS:- INFORMATION IS RECEIVED AS DISSEMINATED IN THE C ASES OF M/S UFLEX LTD AND M/S MONTAGE ENTERPRISES FOR F. Y. 2007-08 TO 2011-12, WHEREIN THE ABOVE MENTIONED ASS ESSEE IS REPORTEDLY ENGAGED IN FINANCIAL CASH PURCHASES AMOUNTING TO ABOVE RS 11,37,031/- AND THE TRANSACTI ON IS NOT VERIFIABLE AND HENCE, INCOME ABOVE RS 1,00,000/ - HAS ESCAPED ASSESSMENT. THE ASSESSEE HAS NOT FURNISHED 7 DISCLOSED THESE CASH PURCHASES IN RETURN OF INCOME. 2. I HAVE, THEREFORE, REASON TO BELIEVE THAT THE I NCOME OF MORE THAN RS 1 LACS CHARGEABLE TO TAX FOR THE A. Y.2009-10 HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTIO N 147 OF THE INCOME TAX ACT 1961. ISSUE NOTICE U/S 148 FOR THE A.Y. 2009-10. 11. I FIND THE JOINT COMMISSIONER WHO HAS GIVEN APP ROVAL FOR SUCH REOPENING HAS SIMPLY MENTIONED: YES, IT IS A FIT CASE FOR ISSUE OF NOTICE U/S 148 OF THE ACT, 1961. A PERUSAL OF THE APPROVAL GIVEN BY THE JOINT CIT SHOWS THAT HE HAS NOT APPLIE D HIS MIND PROPERLY AND HAS IN A MECHANICAL MANNER WRITTEN: Y ES, IT IS A FIT CASE FOR ISSUE OF NOTICE U/S 148 OF THE ACT, 1961. I FIND THE HON'BLE DELHI HIGH COURT IN THE CASE OF N.C. CABLES LTD. (SUPRA) HAS HELD AS UNDER:- ' REASSESSMENT-ISSUANCE OF NOTICE-SANCTION FOR ISSUE OF NOTICE-ASSESSEE HAD IN ITS RETURN FOR A Y 2001-02 CLAIMED THAT SUM OF RS. 1 CRORE WAS RECEIVED TOWARDS SHARE APPLICATION AMOUNTS AND A FURTHER SUM OF THIRTY FIVE LAKHS WAS CREDITED TO IT AS AN ADVANCE TOWARDS LOAN-ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3)-HOWEVER, PURSUANT TO REASSESSMENT NOTICE, WHICH WAS DROPPED DUE TO TECHNICAL REASONS, AND LATER NOTICE WAS ISSUED AND ASSESSMENTS WERE TAKEN UP AFRESH-AFTER CONSIDERING SUBMISSIONS OF ASSESSEE AND DOCUMENTS PRODUCED IN REASSESSMENT PROCEEDINGS, AO ADDED BACK A SUM OF RS.1,35,00,000-CIT(A) HELD AGAINST ASSESSEE ON 8 LEGALITY OF REASSESSMENT NOTICE BUT ALLOWED ASSESSEE'S APPEAL ON MERITS HOLDING THAT AO DID NOT CONDUCT APPROPRIATE ENQUIRY TO CONCLUDE THAT SHARE INCLUSION AND ADVANCES RECEIVED WERE FROM BOGUS ENTITIES-TRIBUNAL ALLOWED ASSESSEE'S APPEAL ON MERITS-REVENUE APPEALED AGAINST APPELLATE ORDER ON MERITS-ASSESSEE'S CROSS APPEAL WAS ON CORRECTNESS OF REOPENING OF ASSESSMENT- TRIBUNAL UPHELD ASSESSEE'S CROSS-OBJECTIONS AND DISMISSED REVENUE'S APPEAL HOLDING THAT THERE WAS NO PROPER APPLICATION OF MIND BY CONCERNED SANCTIONING AUTHORITY U/S SECTION 151 AS A PRE- CONDITION FOR ISSUING NOTICE U/S 147/148- HELD, SECTION 151 STIPULATES THAT CIT (A), WHO WAS COMPETENT AUTHORITY TO AUTHORIZE REASSESSMENT NOTICE, HAD TO APPLY HIS MIND AND FORM OPINION- MERE APPENDING OF EXPRESSION 'APPROVED' SAYS NOTHING-IT WAS NOT AS IF CIT (A) HAD TO RECORD ELABORATE REASONS FOR AGREEING WITH NOTING PUT UP-AT SAME TIME, SATISFACTION HAD TO BE RECORDED OF GIVEN CASE WHICH COULD BE REFLECTED IN BRIEFEST POSSIBLE MANNER- IN PRESENT CASE, EXERCISE APPEARS TO HAVE BEEN RITUALISTIC AND FORMAL RATHER THAN MEANINGFUL, WHICH WAS RATIONALE FOR SAFEGUARD OF APPROVAL BY HIGHER RANKING OFFICER-REVENUE'S APPEAL DISMISSED.' 12. RESPECTFULLY FOLLOWING THE ABOVE DECISION, I HO LD THAT THE REASSESSMENT PROCEEDINGS INITIATED BY THE ASSESSING OFFICER ARE NOT AS PER LAW AND HAS TO BE QUASHED. 9 13. EVEN OTHERWISE, ALSO I FIND THE REOPENING WAS M ADE ON THE GROUND THAT THE TRANSACTION OF THE ASSESSEE WITH M/ S UFLEX LTD. AND M/S MONTAGE ENTERPRISES ARE NOT VERIFIABLE AND, HEN CE, INCOME ABOVE RS.1 LAKH HAS ESCAPED ASSESSMENT. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT NO SUCH ADDITION HAS BE EN MADE, BUT, THE ADDITION HAS BEEN MADE U/S 40A(3) OF THE IT ACT ON ACCOUNT OF CASH PAYMENTS AND NO ADDITION ON THE VERY BASIS ON WHICH THE ASSESSMENT WAS REOPENED HAS BEEN MADE. IT HAS BEEN HELD IN VARIOUS DECISIONS THAT WHEN THE ASSESSMENT IS REOPE NED ON A PARTICULAR ISSUE AND NO SUCH ADDITION HAS BEEN MADE ON THAT VERY ISSUE, THEN, THE ASSESSING OFFICER CANNOT MAKE OTHE R ADDITIONS WHICH MIGHT HAVE COME TO HIS NOTICE DURING THE COUR SE OF COMPLETION OF SUCH REASSESSMENT. HE HAS TO ISSUE S EPARATE NOTICE. SINCE, IN THE INSTANT CASE, THE ASSESSING OFFICER H AS NOT MADE ANY ADDITION FOR WHICH THE CASE WAS REOPENED, THEREFORE , HE LACKS THE JURISDICTION TO ASSESS SUCH OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTIC E SUBSEQUENTLY IN THE COURSE OF SUCH PROCEEDINGS. TH EREFORE, ON THIS GROUND ALSO, THE ADDITION MADE BY THE ASSESSING OFF ICER AND SUSTAINED BY THE CIT(A) IS NOT JUSTIFIED. I, THERE FORE, SET ASIDE THE ORDER OF THE CIT(A) AND THE GROUNDS RAISED BY THE A SSESSEE ARE ALLOWED. 14. IN THE RESULT, THE APPEAL FILED BY THE AS SESSEE IS ALLOWED. 4.2 SINCE IN THE PRESENT CASE THE APPROVING AUT HORITY HAS GIVEN APPROVAL TO THE REOPENING OF ASSESSMENT IN A MECHANICAL MANNER WITHOUT DUE APPLICATION OF MIND BY MENTIONING ONLY YES, I AM SATISFIED THAT IT IS A FIT CASE FOR ISSU E OF NOTICE U/S. 148 IN COLUMN NO. 12 OF THE FORMAT FOR RECORDING THE REASONS FOR INITIATING PROCEEDINGS U/S. 147 AND FOR OBTAINING THE APPROVAL OF THE ADDL./JCIT COMMISSIONER OF INCOME TAX AND THERE FORE, THE LEGAL ISSUE IN 10 DISPUTE IS SQUARELY COVERED BY THE AFORESAID FINDIN G OF THE TRIBUNAL, HENCE, RESPECTFULLY FOLLOWING THE AFORESAID PRECEDENT I.E. ITAT, SMC, BENCH, NEW DELHI DECISION DATED 26.9.2019 IN THE CASE OF KRISHNA PRI NT PACK, MEERUT VS. ITO, WARD 1(3), MEERUT DECIDED IN ITA NO. 5135/DEL/201 8 RELEVANT TO ASSESSMENT YEAR 2009-10, THE REASSESSMENT IS HEREBY QUASHED AN D ACCORDINGLY THE LEGAL GROUND NO. 1.5 IS ALLOWED. THE JUDICIAL DECISIONS RELIED UPON BY THE LD. SR. DR HAVE BEEN DULY CONSIDERED. IN MY CONSIDERED VIEW, I DO NOT FIND ANY PARITY IN THE FACTS OF THE DECISIONS RELIED UPON WITH THE PEC ULIAR FACTS OF THE CASE IN HAND. SINCE THE ASSESSEE SUCCEEDS ON THIS LEGAL GROUND CHALLENGING THE VALID ITY OF REASSESSMENT PROCEEDINGS, THE ADDITION ON MERIT IS NOT BEING ADJUDICATED BEING ACADEMIC IN NATURE. THE APPEAL FILED BY THE ASSESS EE IS ACCORDINGLY ALLOWED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON 22/11/2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 22/11/2019 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES