DHANRAJ MILLS P.LTD, MUMBAI V. DCIT (OSD II) CR 7, MUMBAI

ITA 3100/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92594 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 30-04-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 23-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Assessee Lawyers: VIJAY C KOTHARI
• Keywords: Reopening of assessment; Audit objection; Initiation of penalty proceedings; Tangible material; Bad and doubtful debts; Difference of opinion; Change of opinion; Revenue expenditure; Reassessment proceedings
• Section: 234B; 147; 148; 144

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , , BEFORE SHRI R.C. SHARMA, ACCOUNTATN MEMBER AND SHRI VIJAYPAL RAO , JUDICIAL MEMBE R . / ITA NO . 3100 / MUM./ 2013 ( / ASSESSMENT YEAR : 200 5 06 ) DHANRAJ MILLS PVT. LTD. C/O R.G. AND SONS PVT. LTD. LAXMINARAYAN MANDIR BAPUBHAI VASHI ROAD VILE PARLE (W), MUMBAI 400 056 PAN AAACD5580D .. / APPELLANT V/S DY. COMMISSIONER OF INCOME TAX OSD II, RANGE 7, MUMBAI .... / RESPONDENT / ASSESSEE BY : S HRI VIJAY C. KOTHARI / REVENUE BY : DR. P. DANIEL / DATE OF HEARING 30.04.2015 / DATE OF ORDER 29.05.2015 / ORDER , / PER VIJAYPAL RAO , JUDICIAL MEMBER TH E PRESENT APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 28 T H FEBRUARY 2013 , PASSED BY THE COMMISSIONER ( APPEALS) 40 , MUMBAI, FOR THE ASSESSMENT YEAR 200 5 06 . THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: DHANRAJ MILLS PVT. LTD. 2 1. THE LEARNED CIT(A) HAS ERRED IN PASSING THE ORDER WITHOUT GIVING PROPER OPPORTUNITY TO THE APPELLANT. 2. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE RE OPENING OF ASSESSMENT U/S 147 FO THE ACT. 3. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF ` 35,25,000 BEING CLAIM OF WRITE OFF OF LOANS AND ADVANCES DUE TO NON RECOVERY OF AMOUNTS. 4. TH E LEARNED CIT(A) HAS ERRED IN CONFIRMING THE INTEREST U/S 234C, 234B AND 234C FO THE ACT. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING THE INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. 2. SINCE THE ASSESSEE HAS RAISED THE ISSUE OF VALIDITY OF R E OPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) , WHICH GOES TO THE ROOT OF THE MATTER, THEREFORE, WE SHALL FIRST PROCEED TO ADJUDICATE GROUND NO.2 OF THE ASSESSEES APPEAL. 3. THE ORIGINAL ASSESSMENT WAS COMPLE TED UNDER SECTION 144 OF THE ACT, ON 31 ST DECEMBER 2007. SUBSEQUENTLY, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT BY ISSUING A NOTICE DATED 22 ND MARCH 2010 UNDER SECTION 148 OF THE ACT. THE ASSESSEE, VIDE ITS LETTER DATED 8 TH APRIL 2010, OBJECTED TO TH E RE OPENING OF THE ASSESSMENT ON THE GROUND THAT THE COMPLETE DETAILS OF WRITING OFF OF THE AMOUNT IS BUSINESS LOSS WERE FILED BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER, IN THE ORIGINAL ASSESSMENT PROCEEDINGS, ACCEPTED THE CLAIM OF THE ASSESS EE AFTER CONSIDERING THE REPLY OF THE ASSESSEE. THEREFORE, THE ASSESSEE TOOK OBJECTION THAT THE RE OPENING IS BASED ON CHANGE OF OPINION WHICH IS NOT SUSTAINABLE IN VIEW OF THE JUDGMENT OF THE HON'BLE DHANRAJ MILLS PVT. LTD. 3 DELHI HIGH COURT IN DCIT V/S KALVINATOR OF INDIA LTD., [ 2002] 75 TTJ 966 (DEL) , WHICH HAS BEEN CONFIRMED BY THE HON'BLE SUPREME COURT. THE ASSESSING OFFICER COMPLETED THE RE ASSESSMENT AND MADE THE DISALLOWANCE ON ACCOUNT OF THE BUSINESS LOSS OF ` 35,25,000. 4. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSIN G OFFICER BEFORE THE LEARNED CIT(A) AND ALSO RAISED THE OBJECTION OF VALIDITY OF RE OPENING OF THE ASSESSMENT BUT COULD NOT SUCCEED. 5. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE COURSE OF ORIGINAL ASSESSMENT, THE ASSESSEE FURNISH ED THE DETAILS OF THE BUSINESS LOSS OF THE AMOUNT OF ` 35,25,000, WRITTEN OFF AS BUSINESS LOSS VIDE ITS LETTER DATED 26 TH DECEMBER 2007. THE LEARNED COUNSEL SUBMITTED THAT IN THIS LETTER, THE ASSESSEE HAS EXPLAINED THE CLAIM OF BUSINESS LOSS AS WELL AS THE LOSS SUFFERED BY THE ASSESSEE FROM INVESTMENT IN SHARES. THE ASSESSING OFFICER, WHILE COMPLETING THE ASSESSMENT ON 31 ST DECEMBER 2007, ALLOWED THE CLAIM OF THE ASSESSEE REGARDING THE BUSINESS LOSS OF ` 35,25,000, BUT DISALLOWED THE CLAIM OF THE LOSS ON AC COUNT OF INVESTMENT IN SHARES. THUS, THE ASSESSING OFFICER, WHILE COMPLETING THE ASSESSMENT UNDER SECTION 144, HAS CONSIDERED THE ISSUE OF DISALLO WANCE OF INVESTMENT WRITTEN OFF A FTER CONSID ERING THE REPLY OF THE ASSESSEE AND NO DISALLOWANCE WAS MADE IN RE SPECT OF ` 35,25,000, CLAIMED AS BUSINESS LOSS AS EXPLAINED BY THE DHANRAJ MILLS PVT. LTD. 4 ASSESSEE IN THE SAME REPLY. THUS, THE ASSESSING OFFICER HAS CONSIDERED THE SAID REPLY OF THE ASSESSEE DATED 26 TH DECEMBER 2007 AND ALLOWED THE CLAIM ON ACCOUNT OF BUSINESS LOSS WRITTEN OFF. SUBSEQUENT RE OPENING IS BASED ON CHANGE OF OPINION AS THERE WAS NO FRESH MATERIAL OR INFORMATION CAME TO THE KNOWLEDGE OF THE ASSESSING OFFICER AFTER COMPLETION OF ASSESSMENT ON 31 ST DECEMBER 2007. IN SUPPORT OF HIS CONTENTION, HE RELIED UPON THE DECISIO N OF THE HON'BLE JURISDICTIONAL HIGH COURT DATED 28 TH JANUARY 2015 IN CIT V/S JET SPEED AUDIO PVT. LTD., [2015] 230 TAXMAN 430 (BOM .). 6. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THIS ISSUE HAS BEEN CONSIDERED BY THE ASSESSING OFFICER AND THE LEARNED COMMISSIONER (APPEALS) FOR THE ASSESSMENT YEAR 2004 05 AND THE DISALLOWANCE HAS BEEN CONFIRMED BY THE LEARNED CIT(A) FOR THE ASSESSMENT YEAR 2004 05, THEREFORE, THE CLAIM OF THE ASSESSEE IS NOT PERMISSIBLE AS IT WAS ALSO DECIDED FOR THE ASSESSMENT YEAR 2004 05. HE HAS FURTHER CONTENDED THAT THE RE OPENING IS WITHIN FOUR YEARS AND, THEREFORE, IT IS NOT HIT BY PROVISO TO SECTION 147 OF THE ACT. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSI ONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 144 ON 31 ST DECEMBER 2007. SUBSEQUENTLY, VIDE NOTICE DATED DHANRAJ MILLS PVT. LTD. 5 22 ND MARCH 2010, UNDER SECTION 148 OF THE ACT, THE ASSESSING OFFICER RE OPENED THE ASSESSMENT BY RECO RDING THE REASONS AS UNDER: IN THIS CASE ORDER U/S 144 WAS PASSED ON 31.12.2007 ON THE ASSESSED INCOME OF ` 17,91,17,060 AGAINST THE RETURNED LOSS OF ` 1,16,29,290. DURING THE VERIFICATION OF CASE RECORDS, IT IS SEEN THAT THE ASSESSEE CLAIMED LOANS WRIT TEN OFF AMOUNTING TO ` 35.25 LAKHS AND DEBITED THE SAME TO THE PROFIT & LOSS ACCOUNT. THIS IS IN THE NATURE OF CAPITAL LOSS AND CANNOT BE TREATED AS REVENUE EXPENDITURE. THIS HAS REMAINED TO BE DISALLOWED. IN VIEW OF THE FACTS AND CIRCUMSTANCES, I HAVE NO REASONS TO BELIEF THAT THE INCOME OF ` 35.25 LAKHS HAS ESCAPED ASSESSMENT AND THIS IS A FIT CASE FOR ISSUE OF NOTICE U/S 148 OF THE ACT . 8. THUS, IT IS CLEAR THAT THE ASSESSING OFFICER HAS RE OPENED THE ASSESSMENT ON THE GROUND THAT THE ASSESSEE CLAIMED L OSS WRITTEN OFF AMOUNTING TO ` 35,25,000, WHICH ACCORDING TO THE ASSESSING OFFICER, AT THE TIME OF RE OPENING, IS IN THE NATURE OF CAPITAL LOSS AND CANNOT BE TREATED AS REVENUE EXPENDITURE. WE FIND THAT AT THE TIME OF PASSING THE ASSESSMENT ORDER DATED 31 S T DECEMBER 2007, THE ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF LOSS ON ACCOUNT OF INVESTMENT IN SHARES AND DISCUSSED THE SAID ISSUE AS UNDER: THE ASSESSEE HAS WRITTEN OFF INVESTMENT OF ` 6000000. HE WAS ASKED TO FILE THE DETAILS. HE HAS FILED THE DE TAILS STATING AS UNDER. FOR THE INVESTMENT WRITTEN OFF HE HAS STATED THAT HE HAD SUFFERED A BUSINESS LOSS OF ` 6000000 COMPANIES HAS FORFEITED THE SHARES ON ACCOUNT OF NON PAYMENT OF ALLOTMENT MONEY. HE HAS FILED THE LIST OF SUCH COMPANIES. HOWEVER, HE HAS NOT FILED ANY OTHER DOCUMENTARY EVIDENCE OR PROOF IN SUPPORT OF HIS CONTENTION. HENCE, THE CONTENTION OF ASSESSEE IS NOT ACCEPTABLE. THE AMOUNT OF ` 6000000 AS WRITTEN OFF IS ADDED BACK TO THE INCOME OF THE ASSESSEE . DHANRAJ MILLS PVT. LTD. 6 9. IT IS APPARENT FROM THE FINDINGS OF THE ASSESSING OFFICER THAT THE ASSESSEE FILED A LIST OF SUCH COMPANIES. IT IS PERTINENT TO NOTE THAT THE LIST OF COMPANIES IN RESPECT OF LOSS ON ACCOUNT OF INVESTMENT IN THE SHARES HAS BEEN ANNEXED BY THE ASSESSEE ALONG WITH LETTER DATED 26 TH DECEMBER 2007 . THE SAID LETTER HAS NOT BEEN DISPUTED BY THE REVENUE. IN THE FIRST PART OF THE SAID LETTER, THE ASSESSEE HAS GIVEN THE EXPLANATION REGARDING THE CLAIM OF BUSINESS LOSS OF ` 35,25,000, WRITTEN OFF. THEREFORE, WHILE COMPLETING THE ASSESSMENT ON 31 ST DECEMB ER 2007, THE ASSESSING OFFICER CONSIDERED THE LETTER DATED 26 TH DECEMBER 2007 AND, THERE A F T E R , THE CLAIM OF THE ASSESSEE IN RESPECT OF THE BUSINESS LOSS OF ` 35,25,000, WAS ALLOWED. AS IT IS CLEAR FROM THE REASONS RECORDED BY THE ASSESSING OFFICER FOR RE O PENING OF THE ASSESSMENT THAT NO FRESH MATERIAL OR INFORMATION CAME TO THE NOTICE / KNOWLEDGE OF THE ASSESSING OFFICER REGARDING THIS CLAIM OF BUSINESS LOSS OF ` 35,25,000, BUT THE ASSESSING OFFICER HAS RE OPENED THE ASSESSMENT ON THE BELIEF THAT THE SAID CLAIM OF BUSINESS LOSS IS NOT ALLOWABLE AS IT IS CAPITAL IN NATURE. HENCE, IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT ANY NEW MATERIAL CAME TO THE KNOWLEDGE SUBSEQUENT TO THE ORDER DATED 31 ST DECEMBER 2007. THEREFORE, THE BELIEF OF THE ASSESSING OFFI CER THAT THE INCOME ASSESSABLE TO TAX AS ESCAPED ASSESSMENT IN RESPECT OF THE CLAIM OF BUSINESS LOSS IS NOT BASED ON ANY TANGIBLE MATERIAL CAME TO THE KNOWLEDGE OF THE DHANRAJ MILLS PVT. LTD. 7 ASSESSING OFFICER SUBSEQUENT TO THE ORIGINAL ASSESSMENT BUT THE SAID BELIEF IS BASED ON THE RECORD ALREADY AVAILABLE WITH THE ASSESSING OFFICER AT THE TIME OF THE ASSESSMENT. IT IS CLEAR THAT THE RE OPENING IS BASED ON CHANGE OF OPINION. THE HON'BLE JURISDICTIONAL HIGH COURT IN JET SPEED AUDIO PVT. LTD. (SUPRA), WHILE CONSIDERING IDENTICAL IS SUE, HAS HELD IN PARA 9 TO 13 AS UNDER: 9. WE FIND THAT THE IMPUGNED ORDER OF THE TRIBUNAL HAS RENDERED A FINDING OF FACT ON THE BASIS OF MATERIAL BEFORE IT, IN PARTICULAR THE FACT THAT DURING ORIGINAL ASSESSMENT PROCEEDINGS A QUERY WAS MADE WITH REGARD TO THE SAME ISSUE WHICH WAS RESPONDED TO BY THE RESPONDENT - ASSESSEE AND ON SATISFACTION OF THE SAME, THE ASSESSING OFFICER HAD PASSED AN ASSESSMENT ORDER. THEREFORE, REOPENING OF ASSESSMENT ON AN ISSUE IN RESPECT OF WHICH A QUERY WAS RAISED AND RESPONDE D TO BY THE ASSESSEE WOULD AMOUNT TO A CHANGE OF OPINION. THE TANGIBLE MATERIAL BEING URGED BEFORE US BY MR.CHHOTARAY, IS THE AUDIT OBJECTIONS RECEIVED BY THE ASSESSING OFFICER. HOWEVER, AS WOULD BE CLEAR FROM THE REASONS REPRODUCED HEREINABOVE, THERE IS N O MENTION OF ANY TANGIBLE MATERIAL IN THE REASONS RECORDED FOR ISSUING REOPENING NOTICE UNDER SECTION 148 OF THE ACT. THUS, WE FIND NO FAULT WITH THE FINDINGS OF THE TRIBUNAL THAT THERE IS NO TANGIBLE MATERIAL MENTIONED IN THE REASONS RECORDED BY THE REVEN UE WHICH WOULD WARRANT A DIFFERENT OPINION BEING TAKEN THEN WHICH WAS TAKEN WHEN THE ORIGINAL ORDER OF ASSESSMENT WAS PASSED. IT IS A SETTLED POSITION IN LAW THAT A REOPENING NOTICE CAN BE SUSTAINED ONLY ON THE BASIS OF GROUNDS MENTIONED IN THE REASONS REC ORDED. IT IS NOT OPEN TO THE REVENUE TO ADD AND/OR SUPPLEMENT LATER THE REASONS RECORDED AT THE TIME OF ISSUING REOPENING NOTICE. 10. MR.CHHOTARAY, LEARNED COUNSEL FOR THE REVENUE URGED ON MERITS OF THE REVENUE'S CASE TO CHARGE RS.1.34 CRORES ALLOWED AS BAD DEBTS, HAS TO BE APPROPRIATELY BROUGHT TO TAX AS CAPITAL LOSS. WE POINTED OUT TO MR.CHHOTARAY, LEARNED COUNSEL FOR THE REVENUE THAT THE SCOPE OF THE PRESENT PROCEEDINGS IS ONLY WITH REGARD TO REOPENING NOTICE UNDER SECTION 148 OF THE ACT AND WE ARE NOT DEALING WITH THE MERITS OF THE ASSESSIBILITY OF THE INCOME ALLEGED TO HAVE ESCAPED ASSESSMENT. ON THIS MR.CHHOTARAY SUBMITTED THAT THE ISSUE WHICH HE SEEKS TO URGE IS THAT MERELY BECAUSE THE ASSESSING OFFICER HAS BEEN CARELESS IN BRINGING TO DHANRAJ MILLS PVT. LTD. 8 TAX A PARTICU LAR AMOUNT WHICH IS CHARGEABLE TO TAX, THE REVENUE SHOULD NOT BE PRECLUDED FROM ISSUING NOTICE UNDER SECTION 148 OF THE ACT. THIS SUBMISSION OF MR.CHHOTARAY OVERLOOKS THE FACTS THAT POWER TO REOPEN IS NOT A POWER TO REVIEW AN ASSESSMENT ORDER. AT THE TIME OF PASSING ASSESSMENT ORDER, IT EXPECTED OF THE ASSESSING OFFICER THAT HE WILL APPLY MIND AND PASS AN ORDER. AN ASSESSMENT ORDER IS NOT A MERE SCRAP OF PAPER. TO ACCEPT THE SUBMISSION OF MR.CHHOTARAY, WOULD MEAN TO NEGATE THE WELL SETTLED POSITION IN LAW AS STATED BY THE SUPREME COURT IN THE CASE CIT VS. KELVINATOR OF INDIA LTD., [(2002) 256 ITR 1 (DELHI)(FB)] THAT THE CONCEPT OF 'CHANGE OF OPINION' BROUGHT IN SO AS TO HAVE IN BUILT TEST TO CHECK ABUSE OF POWER. IN VIEW OF THE ABOVE, WE FIND NO SUBSTANC E IN THE SUBMISSIONS RAISED BY MR.CHHOTARAY. 11. THE DECISIONS CITED BY MR.CHHOTARAY, LEARNED COUNSEL ON BEHALF OF THE REVENUE IN SUPPORT OF HIS SUBMISSIONS THAT OVERSIGHT IN PASSING ASSESSMENT ORDER WILL GIVE ASSESSING OFFICER JURISDICTION TO ISSUE NOTI CE, PLACED HEAVY RELIANCE UPON THE CASE KALYANJI MAVJI & CO. (SUPRA). HOWEVER, ON THE ABOVE ASPECT IT HAS BEEN HELD TO BE NO LONGER GOOD LAW BY THE SUBSEQUENT DECISION OF THE SUPREME COURT IN THE CASE OF INDIAN AND EASTERN NEWSPAPER SOCIETY VS. COMMISSI ONER OF INCOME TAX, NEW DELHI, (119 ITR 996) WHEREIN THE SUPREME COURT HAS OBSERVED THUS: - NOW, IN THE CASE BEFORE US, THE ITO HAD, WHEN HE MADE THE ORIGINAL ASSESSMENT, CONSIDERED THE PROVISIONS OF S.9 AND 10. ANY DIFFERENT VIEW TAKEN BY HIM AFTERWARD S ON THE APPLICATION OF THOSE PROVISIONS WOULD AMOUNT TO A CHANGE OF OPINION ON MATERIAL ALREADY CONSIDERED BY HIM. THE REVENUE CONTENDS THAT IT IS OPEN TO HIM TO DO SO, AND ON THAT BASIS TO REOPEN THE ASSESSMENT UNDER S.147(B). RELIANCE IS PLACED ON KALYA NJI MAVJI & CO. V. CIT (1976) 102 ITR 287 (SC), WHERE A BENCH OF TWO LEARNED JUDGES OF THIS COURT OBSERVED THAT A CASE WHERE INCOME HAD ESCAPED ASSESSMENT DUE TO THE OVERSIGHT, INADVERTENCE OR MISTAKE OF THE ITO MUST FALL WITHIN S.34(1)(B) OF THE INDIAN I.T.ACT,1922. IT APPEARS TO US, WITH RESPECT THAT THE PROPOSITION IS STATED TOO WIDELY AND TRAVELS FARTHER THAN THE STATUTE WARRANTS IN SO FAR AS IT CAN BE SAID TO LAY DOWN THAT IF, ON REAPPRAISING THE MATERIAL CONSIDERED BY HIM DURING THE ORIGINAL ASSESSM ENT, THE ITO DISCOVERS THAT HE HAS COMMITTED AN ERROR IN CONSEQUENCE OF WHICH INCOME HAS ESCAPED ASSESSMENT, IT IS OPEN TO HIM TO REOPEN THE ASSESSMENT. IN OUR OPINION, AN ERROR DHANRAJ MILLS PVT. LTD. 9 DISCOVERED ON A RECONSIDERATION OF THE SAME MATERIAL (AND NO MORE) DOES NOT GI VE HIM THAT POWER. THAT WAS THE VIEW TAKEN BY THIS COURT IN MAHARAJ KUMAR KAMAL SINGH V. CIT (1959)35 ITR 1 (SC), CIT V. A.RAMAN AND CO. (1968)67 ITR 11 (SC) AND BANKIPUR CLUB LTD. V. CIT (1971) 82 ITR 831 (SC) AND WE DO NOT BELIEVE THAT THE LAW HAS SINCE TAKEN A DIFFERENT COURSE. ANY OBSERVATIONS IN KALYANJI MAVJI & CO. V. CIT (1976) 102 ITR 287(SC) SUGGESTING THE CONTRARY DO NOT, WE SAY WITH RESPECT, LAY DOWN THE CORRECT LAW. (EMPHASIS SUPPLIED). 12. THE AFORESAID VIEW ON THE ABOVE PROPORTION HAS BEEN REITERATED BY THE APEX COURT IN A.L.A.FIRM VS COMMISSIONER OF INCOME TAX 183 ITR 285 WHEREIN THE COURT HELD THAT CHANGE OF OPINION WHERE OPINION WAS FORMED EARLIER DOES NOT GIVE THE ASSESSING OFFICER JURISDICTION TO REOPEN AN ASSESSMENT. THE APEX COURT INT ERALIA ON THE ABOVE ISSUE HELD AS UNDER: EVEN MAKING ALLOWANCES FOR THIS LIMITATION PLACED ON THE OBSERVATIONS IN KALYANJI MAVJI (1976) 102 ITR 287 (SC) THE POSITION AS SUMMARISED BY THE HIGH COURT IN THE FOLLOWING WORDS REPRESENTS, IN OUR VIEW THE CORREC T POSITION IN LAW (AT P.620 OF 102 ITR) : THE RESULT OF THESE DECISIONS IS THAT THE STATUTE DOES NOT REQUIRE THAT THE INFORMATION MUST BE EXTRANEOUS TO THE RECORD. IT IS ENOUGH IF THE MATERIAL ON THE BASIS OF WHICH THE REASSESSMENT PROCEEDINGS ARE SOUGHT TO BE INITIATED, CAME TO THE NOTICE OF THE INCOME TAX OFFICER SUBSEQUENT TO THE ORIGINAL ASSESSMENT. IF THE INCOME TAX OFFICER HAD CONSIDERED AND FORMED AN OPINION ON THE SAID MATERIAL IN THE ORIGINAL ASSESSMENT ITSELF THEN HE WOULD BE POWERLESS TO START T HE PROCEEDINGS FOR REASSESSMENT. WHERE, HOWEVER THE INCOME TAX OFFICER HAD NOT CONSIDERED THE MATERIAL AND SUBSEQUENTLY CAME BY THE MATERIAL FROM THE RECORD ITSELF, THE SUCH A CASE WOULD FALL WITHIN THE SCOPE OF SECTION 147 (B) OF THE ACT (EMPHASIS SUPPLI ED). 13. THE DECISION OF DELHI HIGH COURT IN THE CASE NEW LIGHT TRADING CO.(SUPRA) DOES NOT INDICATE WHAT REASONS WERE RECORDED FOR ISSUING NOTICE OF REOPENING THEREIN. IN THE PRESENT CASE THE REASONS AS RECORDED BY THE ASSESSING OFFICER AND REPRODUCED HEREINABOVE CLEARLY INDICATE THAT THERE WAS NO TANGIBLE MATERIAL ADVERTING TO THE REASONS RECORDED FOR ISSUING REOPENING NOTICE. SIMILARLY THE DECISION OF THIS COURT IN THE CASE DR.AMIN'S PATHOLOGY LABORATORY (SUPRA), IT HAS BEEN OBSERVED THAT IF ANY IT EM HAS ESCAPED FROM ASSESSMENT WHICH OTHERWISE IS INCLUDIBLE WITHIN THE ASSESSMENT AND THE ASSESSING OFFICER NOTICES IT SUBSEQUENTLY BY HIS OWN INVESTIGATION OR BY REASON OF SOME INFORMATION RECEIVED BY HIM, ONE CANNOT SAY THAT IT CONSTITUTES CHANGE OF OPI NION. IN THE PRESENT FACTS DURING DHANRAJ MILLS PVT. LTD. 10 ORIGINAL PROCEEDINGS ITSELF THIS ISSUE WAS INVESTIGATED BY THE ASSESSING OFFICER BY RAISING SPECIFIC QUERY WITH REGARD TO BAD DEBTS OF RS.1.35 CRORES. CONSEQUENTLY, THIS IS NOT A CASE WHERE THIS INFORMATION HAS BEEN NOTICE D BY THE ASSESSING OFFICER SUBSEQUENTLY IN THE ASSESSMENT PROCEEDINGS. IN VIEW OF THE ABOVE, IN OUR OPINION, NONE OF THE THREE DECISIONS ARE APPLICABLE IN THE PRESENT FACTS. 10. FOLLOWING THE AFORESAID JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN JE T SPEED AUDIO PVT. LTD. (SUPRA), WE SET ASIDE THE RE OPENING OF THE ASSESSMENT AND CONSEQUENT RE ASSESSMENT. GROUND NO.2, RAISED BY THE ASSESSEE IS ALLOWED. 11. SINCE WE HAVE QUASHED THE RE ASSESSMENT, THEREFORE, THE OTHER GROUNDS, AS RAISED BY THE ASSESSEE, BECOME INFRUCTUOUS AND DO NOT REQUIRE ANY ADJUDICATION. 12. 12. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT O N 29.5.2015 SD/ - . . R.C. SHARMA ACCOUNTANT MEMBER SD/ - , VIKAYPAL RAO JUDICI AL MEMBER MUMBAI, DATED : 29.5.2015 DHANRAJ MILLS PVT. LTD. 11 / COPY OF THE ORDER FORWARDED TO : (1) / THE ASSESSEE; (2) / THE REVENUE; (3) ( ) / THE CIT(A); (4) / THE CIT, MUMBAI CITY CONCERNED; (5) , , / THE DR, ITAT, MUMBAI; (6) / GUARD FILE . / TRUE COPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI