M/s. Dynasty Housing & Land Development Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 3106/DEL/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6731 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-02-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Question of law; Tangible material; Accommodation entries; Reason to believe; Reassessment proceedings
• Section: 143(3); 234B; 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 3106/DEL/2013 ASSESSMENT YEAR: 2005-06 M/S DYNASTY HOUSING & LAND VS. ITO, WARD 10(5), DEVELOPMENT PVT. LTD., NEW DELHI B-6/1, SOUTH PATEL NAGAR, NEW DELHI 110 008 (PAN: AAACD4517G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SALIL AGARWAL, ADV. & SH. SHAILESH GUPTA, ADV. REVENUE BY : SH. ANIL KUMAR SHARMA, SR. DR ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 18.2.2013 OF THE LD. CIT(A)-XIII, NEW DELHI PERTA INING TO ASSESSMENT YEAR 2005-06 AND RAISED THE FOLLOWING GR OUNDS:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS GROSSLY ERRED BOTH IN LAW AND ON FACTS IN SUSTA INING AN ASSESSMENT UNDER SECTION 143(3)/147 OF THE ACT A T AN INCOME OF RS.14, 44, 800/- AS AGAINST RETURNED LOSS OF 55, 200/-. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING TH E INITIATION 2 OF PROCEEDINGS UNDER SECTION 147 OF THE ACT AND, FU RTHER COMPLETION OF ASSESSMENT UNDER SECTION 143(3)/147 O F THE ACT WITHOUT SATISFYING THE STATUTORY PRE-CONDITIONS FOR INITIATION OF THE PROCEEDINGS AND, COMPLETION OF AS SESSMENT UNDER THE ACT. 3 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN SUSTAINING THE INITIATION OF PROCEEDINGS U/S 147 OF THE ACT ON THE BASIS OF INFORMATION RECEIVED FROM OIT (INVESTIGATION) MECHA NICALLY AND WITHOUT INDEPENDENT APPLICATION OF MIND. 3.1 THAT FURTHER, THE REASONS RECORDED WERE MERE RE ASONS TO SUSPECT AND WERE JUST TO MAKE FISHING AND ROVING EN QUIRIES, AS NO INDEPENDENT ENQUIRY WAS CONDUCTED BY THE ASSESSI NG OFFICER BEFORE ISSUING SUCH NOTICE UNDER SECTION 148 AND AS SUCH THE PROCEEDING INITIATED UNDER SECTION 148 WAS A MERE P RETENCE. 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN MAKING AN ADDITION RS.15,00, 000/- AS ALLEGED ACCOMMODATION ENTRY RECE IVED FROM SH. SK GUPTA, AND HELD TO BE UNEXPLAINED CASH CREDI T U/S. 68 OF THE ACT. 4.1 THAT IN DOING SO, THE LD. CIT(A) HAS COMPLETELY IGNORED AND OVERLOOKED ALL THE NECESSARY DOCUMENTS WHICH WE RE FILED BEFORE BOTH AO AND CIT(A), EXPLAINING THE FACT THA T THE APPELLANT COMPANY HAS SOLD ITS SHAREHOLDING IN M/S ALLIANCE B UILDCON INDIA 3 LTD. TO M/S PASSION CHIT COMPANY PVT. LTD. WHICH WA S DULY REFLECTED IN THE APPELLANT COMPANYS FINANCIAL STAT EMENTS. 4.2 THAT FURTHER THE LEARNED COMMISSIONER OF LEARN ED INCOME TAX (APPEALS) IGNORED THE BASIC FACT THAT NO AMOUNT WAS EVER RECEIVED FROM SH. S.K. GUPTA (THE ALLEGED ACCOMMODA TION ENTRY OPERATOR), RATHER RS. 15,00,000/- WAS RECEIVED FROM MIS PASSION CHITS COMPANY PVT. LTD. AND THAT TOO AGAINST SALE O F SHAREHOLDING IN MIS ALLIANCE BUILDCON INDIA LTD. AND ALL NECESSA RY DETAILS REGARDING THE SAID TRANSACTIONS WERE FILED BEFORE L EARNED ITO, WHICH WERE TOTALLY IGNORED BY THE LEARNED ITO WITHO UT CONDUCTING ANY FURTHER ENQUIRY, THUS, ADDITION SO MADE BY LEAR NED ITO AND SUSTAINED BY CIT (A) WAS CLEARLY BASED ON SUSPICION S AND SURMISES AND IS LIABLE TO BE DELETED AS SUCH. 5. THAT THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACTS BY IGNORING THE FACT THAT THERE COULD BE NO DOUBLE TAX ATION OF THE SAME SUM ONCE AS SALE CONSIDERATION ON SALE OF SHAR ES OF M/S ALLIANCE BUILDCON INDIA LTD. TO M/S PASSION CHITS C OMPANY PRIVATE LIMITED AND AGAIN AS UNDISCLOSED INCOME RECEIVED FR OM M/S PASSION CHITS COMPANY PRIVATE LIMITED. THIS ADDITI ON IS IN DISREGARD OF THE JUDGMENT OF APEX COURT IN THE CAS E OF LAXMIPAT SINGHANIA VS. CIT REPORTED IN 72 ITR 291 AND THEREF ORE, UNSUSTAINABLE. 6 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAS IGNORED THE BASIC FACT THAT THE LEARNED ITO SOLELY BASED HIS ORDER 4 ON STATEMENT MADE BY SH. D.N. TANEJA ON 07.01.2009 WHEREIN HE SURRENDERED RS. 6.23 CRORES, WHEREIN HE SPECIFIC ALLY SURRENDERED RS. 15,00, 000/- ON BEHALF OF APPELLAN T COMPANY, IGNORING AND OVERLOOKING THE BASIC FACT THAT SH. D. N. TANEJA WAS NEVER A DIRECTOR IN THE APPELLANT COMPANY AND NOR H E HAD ANY SHAREHOLDING IN THE APPELLANT COMPANY, AND THUS, TH E SURRENDER MADE BY HIM ON BEHALF OF APPELLANT COMPANY CANNOT B E RELIED UPON, AS HE IS NOT AWARE OF THE FACTS OF THE APPELL ANT COMPANY. 7. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS FURTHER RELIED ON A GENERAL STATEMENT OF SH. S.K.GU PTA DATED 05.01.2009, WHEREIN NO . WHERE HE MENTIONED THAT HE HAS GIVEN ACCOMMODATION ENTRIES TO APPELLANT COMPANY AND NO W HERE HE HAD MENTIONED THAT HE HAS RECEIVED CASH IN LIEU OF CHEQUES ISSUED BY M/S PASSION CHITS COMPANY PVT. LTD. TO AP PELLANT COMPANY. HIS STATEMENT IS GENERAL IN NATURE AND CAN NOT BE RELIED UPON AND ADDITION MADE ON HIS STATEMENT IS TOTALLY BASED ON IRRELEVANT CONSIDERATIONS, CONJECTURES AND SURMISES AND AS SUCH IS LIABLE TO BE DELETED AS SUCH. 8. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED IN LAW AND ON FACTS IN MAKING ADDITIONS IN TH E HANDS OF ASSESSEE COMPANY, WITHOUT GIVING ANY FAIR AND PROPE R OPPORTUNITY OF BEING HEARD TO THE APPELLANT COMPANY . THEREBY, VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 5 9. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS FURTHER ERRED BY SUSTAINING OF LEVY OF INTEREST ULS 234B OF THE ACT, WHICH IS NOT LEVIABLE ON THE FACTS OF THE APPELLANT COMPANY. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT OF PRO PERTIES. THE ASSESSEE FILED ITS RETURN OF INCOME FOR AY 2005-06 ON 30.11.2015 DECLARING A LOSS OF RS.55,200/-. SUBSEQUENTLY, INFO RMATION WAS RECEIVED FROM THE DCIT, CENTRAL CIRCLE-18, NEW DELH I VIDE LETTER DATED 18.2.2011 THAT THE ASSESSEE COMPANY IS BENEFI CIARY OF ACCOMMODATION ENTRY AND HAS RECEIVED ACCOMMODATION ENTRIES OF RS. 15 LACS VIDE ENTRY DATED 09.7.2014. THIS FACT WAS ADMITTED BY SH. SK GUPTA DURING THE SURVEY PROCEEDINGS CARRIED OUT IN HIS CASE BY THE INVESTIGATION WING ON 20.11.2007 IN WHICH HE HAD ADMITTED THAT THE WAS PROVIDING ACCOMMODATION ENTRIES TO VAR IOUS PERSONS THROUGH A NUMBER OF CONCERNS/ COMPANIES CONTROLLED BY HIM. HER ALSO CONFESSED THAT VARIOUS COMPANIES CONTROLLED BY HIM DO NOT HAVE ANY BUSINESS ACTIVITIES AND ARE USED ONLY TO ISSUE ACCOMMODATION ENTRIES. IN VIEW OF THE RECEIPT OF THE ABOVE INFORM ATION THE ASSESSMENT WAS REOPENED U/S. 148 OF THE I.T. ACT AF TER RECORDING REASONS AND NOTICE WAS ISSUED ON 28.3.2011. IN TH E ASSESSMENT ORDER PASSED BY THE AO THE ACCOMMODATION ENTRY OF R S. 15 LACS RECEIVED FROM SH. SK GUPTA HAS BEEN ADDED AS UNEXPL AINED INCOME OF THE ASSESSEE AND ASSESSMENT WAS COMPLETED VIDE HIS ORDER DATED 6 23.12.2011 BY ASSESSING THE INCOME OF THE ASSESSEE AT RS. 44,84,982/- U/S. 147/143(3) OF THE I.T. ACT, 1961. 3. AGAINST THE ASSESSMENT ORDER, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A) WHO VIDE HIS IMPUGNED ORDER DA TED 18.2.2013 HAS DISMISSED THE APPEAL OF THE ASSESSEE. 4. AGGRIEVED WITH THE AFORESAID ORDER OF THE LD. C IT(A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESS EE HAS STATED THAT ALTHOUGH THE ASSESSEE HAS RAISED SO MANY GROU NDS BUT HE HAS ONLY PRESSED THE GROUND NO. 2 I.E. LEGAL GROUND WHI CH IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ITAT DEC ISION DATED 09.01.2015 IN THE CASE OF G&G PHARMA INDIA LIMITED VS. ITO PASSED IN ITA NO. 3149/DEL/2013 (AY 2003-04) IN WHICH THE JUDICIAL MEMBER IS THE AUTHOR. HE FURTHER STATED THAT THE ABOVE DECISION OF THE ITAT DATED 09.01.2015 HAS BEEN UPHELD BY THE HO NBLE JURISDICTIONAL HIGH COURT IN ITS DECISION DATED 08. 10.2015 IN ITA NO. 545/2015 IN THE CASE OF PR. CIT-4 VS. G&G PHARMA IN DIA LTD. IN THIS REGARD, HE FILED THE COPIES OF THE AFORESAID DECISI ONS BEFORE THE TRIBUNAL. IN VIEW OF THE ABOVE, HE REQUESTED THAT BY FOLLOWING THE AFORESAID PRECEDENTS THE REASSESSMEN T PROCEEDINGS OF THE AO MAY BE QUASHED BY ACCEPTING THE APPEAL FILED BY THE ASSESSEE. 6. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER PA SSED BY THE AUTHORITIES BELOW AND STATED THAT THE AO HAS PROPER LY RECORDED THE 7 REASONS FOR REOPENING BY DUE APPLICATION OF MIND, H ENCE, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AND THE CASE LAW CITED BY THE ASSESSEE S COUNSEL ON THE ISSUE IN DISPUTE. WE ARE OF THE VIEW, IT IS VE RY MUCH NECESSARY TO REPRODUCE THE REASONS RECORDED BY THE AO BEFORE ISSUE OF NOTICE TO THE ASSESSEE U/S. 148 OF THE I.T . ACT, 1961 WHICH IS REPRODUCED HEREUNDER:- 'INFORMATION HAS BEEN RECEIVED FROM THE DEPUTY COMM ISSIONER OF INCOME TAX (CENTRAL CIRCLE-TS, NEW DELHI, VIDE LETT ER F. NO. DCIT/CC-18/2010-11/593 DATED 18.02.2011, THAT THE A BOVE NAMED ASSESSEE COMPANY IS THE BENEFICIARY OF ACCOMM ODATION ENTRIES AS PER DETAILS GIVEN HEREUNDER- NAME OF THE ASSESSEE AMOUNT OF ENTRY DATE OF ENTRY DYNASTY HOUSING & LAND DEVELOPMENT PRIVATE LIMITED 15,00,000 09.07.2004 IN THE ABOVE CONTEXT, STATEMENTS HAVE BEEN RECORDED BY THE DIRECTORATE OF INCOME TAX INVESTIGATION (WING), NEW DELHI OF THE ENTRY PROVIDER SH. SK GUPTA DURING THE COURSE OF S URVEY PROCEEDINGS ON 5.1.2009 WHO HAVE CONFESSED IN HIS S TATEMENTS GIVEN BEFORE THE WING, THAT HE IS ENGAGED IN THE BU SINESS OF 8 PROVIDING ACCOMMODATION ENTRIES TO THE NEEDY PERSON S AGAINST COMMISSION RECEIVED FROM THEM. THE ENTRY PROVIDER H AVE CONFESSED THAT : I) THEY GIVE LOANS AND ADVANCES AND SHARE APPLICAT ION CAPITAL THROUGH CHEQUES AFTER RECEIVING OF CASH FRO M THEM AND TAKE A PREMIUM AS THOSE CHEQUES. ( ANSWER TO QUESTION NO 7) II) THAT TANEJA GROUP OF COMPANIES IS ONE OF THE COMP ANIES TO WHOM ACCOMMODATION ENTRY HAS BEEN PROVIDED. III) THEIR MAIN WORK IS OF PROVIDING ACCOMMODATIO N ENTRIES. IV) THEY PROVIDES ENTRY TO ANY PERSON/FIRM/COMPAN Y AGAINST CASH RECEIVED FROM THE CONCERNED PERSON/FIRM/COMPANY WHICH IS DEPOSITED BY HIM IN T HE VARIOUS BANK ACCOUNTS OPERATED BY HIM THROUGH VARIO US PERSONS, IN VARIOUS NAMES, AND AGAINST THE CASH SO RECEIVED, CHEQUE/DD/OR PAY ORDER IS ISSUED FROM THE SAID ACCO UNTS IN THE NAME OF THE PARTY AGAINST COMMISSION. V) DURING THE STATEMENT BEING RECORDED THE DEPARTME NT HAD SHOWN THE PRINT OUT OF LOAN ACCOUNT OBTAINED FR OM THE COMPUTER OF SH. S.K GUPTA WHEREIN AT PAGE NUMBE R 925 THERE IS CLEAR ACCOUNT OF RS. 15,00,000/- AS CH EQUE 9 GIVEN TO THE ASSESSEE COMPANY. ALSO IN THE ACCOUNT IT IS SEEN THAT CASH HAS BEEN RECEIVED ON VARIOUS DATES BEFORE THIS. VI) ALSO IN THE STATEMENT RECORDED OF SH. D. N. TA NEJA, THE MAIN CONTROLLING PERSON OF TANEJA GROUP OF COMPANIE S IT HAS BEEN ACCEPTED BY HIM THAT THE ASSESSEE COMPANY 'WAS ITS GROUP COMPANY AND THAT IT HAS RECEIVED ENT RIES ON CASH TO CHEQUES AND HAS ALSO OFFERED IT AS TAX O N THESE RECEIPTS. VII) IN VIEW OF THE ABOVE FACTS, THE SURROUNDING CIRCUMSTANCES PROVE ITSELF THE NATURE OF ENTRIES AN D ARE SUFFICIENT REASONS TO MAKE BELIEF OF THE UNDERSIGNE D THAT THE INCOME TO AT LEAST THE ABOVE AMOUNT OF RS. 15,00,000/- HAS ESCAPED ASSESSMENT FOR A. Y. 2005-06. IN VIEW OF THE TOTALITY OF FACTS AND CIRCUMSTANCES BROUGHT OUT BY THE SPECIFIC INFORMATION PROVIDED BY DIT (INV.), NEW DELHI, AND ALSO FURTHER SUPPORTED BY THE CIRCUM STANTIAL EVIDENCE THAT THE ENTRY OPERATOR IS A PROFESSIONAL NAME LENDER, I HAVE REASONS TO BELIEVE THAT THE ASSESSEE COMPANY HAS ACCEPTED ACCOMMODATION ENTRIES WHICH ARE OF 'MO RE THAN 10 RS. 1 LAKH SO AS TO-EVADE INCOME TAX ON ITS REAL IN COME FOR THE CONCERNED ASSESSMENT YEARS, WHICH HAVE ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. THE ASSESSEE HAS FILED ITS RETURN FOR A. Y. 2005-06 VIDE ACKNOWLEDGEMENT NO. 582 ON 21.11.2005 AT A LOSS OF RS. 55,200/- AND AS PER THE RECORDS AVAILABLE THE CASE HAS NOT BEEN ASSESSED U/S. 143(3) OF THE ACT. IN SUCH EVENT UALITY APPROVAL VIDE PROVISIONS OF SECTION 149(1)(B) READ WITH SECTION 151(2) OF THE IT ACT, 1961 IS SOUGHT TO ISSUE NOTIC E U/S 148 OF THE INCOME TAX ACT 1961 FOR THE A. Y. 2005-06. 8. AFTER GOING THROUGH THE REASONS RECORDED BY THE AO, AS AFORESAID, WE ARE OF THE VIEW THAT AO HAS NOT APPLI ED HIS MIND SO AS TO COME TO AN INDEPENDENT CONCLUSION THAT HE HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED DURING THE YEAR. IN OUR CONSIDERED VIEW THE REASONS ARE VAGUE AND ARE NOT B ASED ON ANY TANGIBLE MATERIAL AS WELL AS ARE NOT ACCEPTABLE IN THE EYES OF LAW. THE AO HAS MECHANICALLY ISSUED NOTICE U/S. 148 OF T HE I.T. ACT, 1961 ON THE BASIS OF INFORMATION ALLEGEDLY RECEIVED BY HIM FROM THE DIRECTORATE OF INCOME TAX (INV.), NEW DELHI. K EEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE CASE LAW APPLICABLE IN THE CASE OF THE ASSESSEE, WE ARE OF THE CONSIDERED VIEW THAT THE REOPENING IN THE CASE OF T HE ASSESSEE FOR 11 THE ASSTT. YEAR IN DISPUTE IS BAD IN LAW AND DESERV ES TO BE QUASHED. OUR VIEW IS FULLY SUPPORTED BY THE FOLLOW ING JUDGMENT/DECISION:- PR. CIT VS. G&G PHARMA INDIA LTD. IN ITA NO. 545/2015 DATED 8.10.2015 OF THE DELHI HIGH COURT WHEREIN THE HONBLE COURT HAS ADJUDICATED THE ISSUE AS UNDER:- 12. IN THE PRESENT CASE, AFTER SETTING OUT FOUR EN TRIES, STATED TO HAVE BEEN RECEIVED BY THE ASSESSEE ON A S INGLE DATE I.E. 10TH FEBRUARY 2003, FROM FOUR ENTITIES WH ICH WERE TERMED AS ACCOMMODATION ENTRIES, WHICH INFORMATION WAS GIVEN TO HIM BY THE DIRECTORATE OF INVESTIGATION, THE AO STATED: 'I HAVE ALSO PERUSED VARIOUS MATERIALS AND REPORT FROM INVESTIGATION WING AND ON THAT BASIS IT IS EVIDENT THAT THE ASSESSEE COMPANY HAS INTRODUCED ITS OWN UNACCOUNTED MONEY IN ITS BANK ACCOUNT BY WAY OF ABOVE ACCOMMODATION ENTRIES.' THE ABOVE CONCLUSION IS UNHELPFUL IN UNDERSTANDING WHET HER THE AO APPLIED HIS MIND TO THE MATERIALS THAT HE TA LKS ABOUT PARTICULARLY SINCE HE DID NOT DESCRIBE WHAT T HOSE MATERIALS WERE. ONCE THE DATE ON WHICH THE SO CALLE D ACCOMMODATION ENTRIES WERE PROVIDED IS KNOWN, IT WO ULD NOT HAVE BEEN DIFFICULT FOR THE AO, IF HE HAD IN FA CT UNDERTAKEN THE EXERCISE, TO MAKE A REFERENCE TO THE 12 MANNER IN WHICH THOSE VERY ENTRIES WERE PROVIDED IN THE ACCOUNTS OF THE ASSESSEE, WHICH MUST HAVE BEEN TEND ERED ALONG WITH THE RETURN, WHICH WAS FILED ON 14TH NOVE MBER 2004 AND WAS PROCESSED UNDER SECTION 143(3) OF THE ACT. WITHOUT FORMING A PRIMA FACIE OPINION, ON THE BASIS OF SUCH MATERIAL, IT WAS NOT POSSIBLE FOR THE AO TO HA VE SIMPLY CONCLUDED: 'IT IS EVIDENT THAT THE ASSESSEE COMPANY HAS INTRODUCED ITS OWN UNACCOUNTED MONEY IN ITS BAN K BY WAY OF ACCOMMODATION ENTRIES'. IN THE CONSIDERED VI EW OF THE COURT, IN LIGHT OF THE LAW EXPLAINED WITH SUFFI CIENT CLARITY BY THE SUPREME COURT IN THE DECISIONS DISCU SSED HEREINBEFORE, THE BASIC REQUIREMENT THAT THE AO MUS T APPLY HIS MIND TO THE MATERIALS IN ORDER TO HAVE RE ASONS TO BELIEVE THAT THE INCOME OF THE ASSESSEE ESCAPED ASSESSMENT IS MISSING IN THE PRESENT CASE. 13. MR. SAWHNEY TOOK THE COURT THROUGH THE ORDER OF THE CIT(A) TO SHOW HOW THE CIT (A) DISCUSSED THE MATERI ALS PRODUCED DURING THE HEARING OF THE APPEAL. THE COUR T WOULD LIKE TO OBSERVE THAT THIS IS IN THE NATURE OF A POST MORTEM EXERCISE AFTER THE EVENT OF REOPENING OF THE ASSESSMENT HAS TAKEN PLACE. WHILE THE CIT MAY HAVE PROCEEDED ON THE BASIS THAT THE REOPENING OF THE ASSESSMENT WAS VALID, THIS DOES NOT SATISFY THE REQUIREMENT OF LAW THAT PRIOR TO THE REOPENING OF T HE ASSESSMENT, THE AO HAS TO, APPLYING HIS MIND TO THE 13 MATERIALS, CONCLUDE THAT HE HAS REASON TO BELIEVE T HAT INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. UNLE SS THAT BASIC JURISDICTIONAL REQUIREMENT IS SATISFIED A POST MORTEM EXERCISE OF ANALYSING MATERIALS PRODUCED SUBSEQUENT TO THE REOPENING WILL NOT RESCUE AN INHE RENTLY DEFECTIVE REOPENING ORDER FROM INVALIDITY . 14. IN THE CIRCUMSTANCES, THE CONCLUSION REACHED BY THE ITAT CANNOT BE SAID TO BE ERRONEOUS. NO SUBSTANTIAL QUESTION OF LAW ARISES. 15. THE APPEAL IS DISMISSED. 9. IN VIEW OF ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE AFORESAID ISSUE IN DISPUTE IS EXACTLY THE SIMILAR A ND IDENTICAL TO THE ISSUE INVOLVED IN THE PRESENT APPEAL AND IS SQU ARELY COVERED BY THE AFORESAID DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF G&G PHARMA (SUPRA). HENCE, RESPECTFULLY FO LLOWING THE ABOVE PRECEDENT IN THE CASE OF PR. CIT-4 VS. G&G PH ARMA INDIA LTD. (SUPRA) WE DECIDE THE LEGAL ISSUE IN DISPUTE I N FAVOR OF THE ASSESSEE AND AGAINST THE REVENUE AND ACCORDINGLY QU ASH THE REASSESSMENT PROCEEDINGS AND ALLOW THE LEGAL ISSUE. SINCE WE HAVE ALREADY QUASHED THE REASSESSMENT PROCEEDINGS, AS AFORESAID, 14 THE OTHER ISSUES ARE NOT BEING DEALT WITH BEING ACA DEMIC IN NATURE. 10. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 10-02-2017. SD/- SD/- (L.P. SAHU) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10-02-2017 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.