Mrs. Shubhra Agarwal, Agra V. Dy. C.I.T., Circle-4(1), Agra

ITA 322/AGR/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9999 (ITAT-AGRA)
• Duration Of Justice: 3 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-08-2014
• Assessment Year: 2000-2001
• Appeal Filed On: 12-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P K SEHGAL
• Keywords: Reopening of assessment; Reason to believe
• Section: 147; 131; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBE R AND MRS. ANNAPURNA MEHROTRA, ACCOUNT ANT MEMBER ITA NO. 322/AGRA/2012 ASSTT. YEAR : 2000-01 MRS. SUBHRA AGARWAL, VS. D.C.I.T., CIRCLE 4(1) , W/O MR. ASHOK KUMAR AGARWAL, AGRA. C/O M/S. KAMLA NAGAR, SERVICE STATION, F-1, PROFESSOR COLONY, KAMLA NAGAR, AGRA. [PAN: AAKPA 3021 B] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.K. SEHGAL, ADVOCATE RESPONDENT BY : SHRI WASEEM ARSHAD, SR. DR DATE OF HEARING : 27.01.2016 DATE OF PRONOUNCEMENT : 02.02.2016 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER: THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(A)- II, AGRA DATED 29.03.2012 FOR THE ASSESSMEN T YEAR 2000-01. 2. IN THIS APPEAL, THE ASSESSEE CHALLENGED THE REOP ENING OF ASSESSMENT U/S. 147 OF THE IT ACT AND ADDITION OF RS.41,31,432/- MA DE ON ACCOUNT OF UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT NO. 5060 IN SBI, KAMLA NAGAR, AGRA. ITA NO.322/AGRA/2012 2 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT IN THIS CASE A COMPLAINT WAS RECEIVED BY THE DEPARTMENT THAT THE ASSESSEE SMT. S UBHRA AGARWAL OWNED AN ILLEGAL BANK ACCOUNT NO. SB 5060 IN THE NAME OF SU SHNA AT STATE BANK OF INDIA, KAMLA NAGAR, AGRA. THE COMPLAINANT ATTACHED COPIES OF TWO ACCOUNT PAYEE CHEQUES BEARING NO.689797 DATED 12.03.2000 FO R RS.5 LACS AND 689798 DATED 07.03.2000 FOR RS.10 LACS ISSUED FROM THE BAN K ACCOUNT NO. 5060 SIGNED AS SUSHNA. THE COMPLAINANT ALSO ENCLOSED COPIES O F FOUR ACCOUNT PAYEE CHEQUES DRAWN ON SBI, LOHAMANDI, AGRA BEARING NO. 6 61375 DATED 08.02.2000 FOR RS.2 LACS, CHEQUE NO.611376 DATED 10 .02.2000 FOR RS.2 LACS, CHEQUE NO. 661378 DATED 11.02.2000 FOR RS.1 LAC AND CHEQUE NO. 661379 DATED 11.02.2000 FOR RS.5,00,000/- SIGNED BY S AGA RWAL. THE AO, HAVING REASON TO BELIEVE THAT INCOME TO THE TUNE OF RS.25 LACS HAS ESCAPED ASSESSMENT. THEN THE INCOME-TAX OFFICER 4(4) INITIA TED PROCEEDINGS U/S. 147 OF THE IT ACT AGAINST THE ASSESSEE SMT. SUBHRA AGAR WAL FOR THE ASSESSMENT YEAR 2000-01 AND ISSUED NOTICE U/S. 148. THE AO COMPLETE D THE ASSESSMENT ON 31.12.2007 ON TOTAL INCOME OF RS.25,94,370/- AS AGA INST RETURNED INCOME OF RS.94,366/-. 4. THE LD. CIT-II, AGRA, AFTER EXAMINING THE RECORD OF THIS ASSESSMENT FOUND THAT THE ORDER DATED 31.12.2007 WAS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE ITA NO.322/AGRA/2012 3 INTEREST OF REVENUE AND SET ASIDE THE ORDER OF THE AO U/S. 263 OF THE IT ACT VIDE ORDER DATED 04.12.2009 AND DIRECTED TO MAKE AS SESSMENT AFRESH. 5. IN VIEW OF THE ORDER U/S. 263 OF THE ACT, PRESEN T PROCEEDINGS WERE CONDUCTED BY THE AO. THE ASSESSEE RAISED OBJECTION WITH REGARD TO REOPENING OF ASSESSMENT U/S. 147 OF THE ACT. THE OBJECTION OF THE ASSESSEE WAS REJECTED BECAUSE THE ASSESSEE CLAIMED IN THE PROCEEDINGS U/S . 263 OF THE IT ACT THAT ORDER PASSED BY THE AO WAS A REASONED ORDER. IT WAS ALSO NOTED THAT SIMILAR OBJECTION WAS RAISED IN THE EARLIER PROCEEDINGS AND OBJECTIONS HAVE ALREADY BEEN DEALT WITH. THEREFORE, SAME CANNOT BE RAISED I N THE PRESENT PROCEEDINGS. 6. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDIN GS NOTED THAT THE ASSESSEE EXPLAINED THAT SB ACCOUNT NO. 5060 WITH ST ATE BANK OF INDIA, KAMLA NAGAR, AGRA DOES NOT BELONG TO HER. IN ORDER TO VER IFY THE CLAIM OF ASSESSEE, THE MATTER WAS REFERRED TO HAND WRITING EXPERT SHRI RAJ KUMAR SHROTIYA WHO AFTER COMPARING THE HAND WRITING AVAILABLE ON SUMMONS DAT ED 13.12.2010 (PB 220) WITH THE DOCUMENTS ACQUIRED FROM STATE BANK OF INDI A, KAMLA NAGAR, AGRA, FURNISHED A DETAILED REPORT DATED 20.12.2010 (PB-19 0) AND REPORTED THAT THE SIGNATURE AVAILABLE ON THE CHEQUES WERE ACTUALLY PU T BY SMT. SUBHRA AGARWAL. THE REPORT WAS CONFRONTED TO THE ASSESSEE WHILE EXA MINING HER ON OATH AND ITA NO.322/AGRA/2012 4 SHE WAS ASKED TO COMMENT ON THE CONTENTS OF THE HAN D WRITING EXPERT REPORT, TO WHICH THE ASSESSEE EXPLAINED THAT THE SIGNATURE OF SUSHNA DOES NOT BELONG TO HER AND SHE HAS NOT OPENED OR OPERATED ANY BANK ACCOUNT NO. 5060 WITH SBI, KAMLA NAGAR, AGRA. IT WAS EXPLAINED THAT SHE H AS NO CONCERN WITH THIS BANK ACCOUNT. THE ASSESSEE ALSO ENGAGED TWO EXPERTS , NAMELY SHRI O.P. TANEJA AND SHRI ROOPAK KASHYAP WHO HAD FILED THEIR REPORTS IN FAVOUR OF THE ASSESSEE ON 30.12.2010 (PB 221 AND 197). THESE EXPERTS ALSO DESIRED TO CROSS EXAMINE SHRI RAJ KUMAR SHROTIYA, THE HAND WRITING EXPERT, A PPOINTED BY THE DEPARTMENT. THEREFORE, AN OPPORTUNITY OF CROSS EXAM INATION WAS EXTENDED TO THE BOTH THE EXPERTS, APPOINTED BY ASSESSEE. THE SU M AND SUBSTANCE OF THE CROSS EXAMINATION REVEALED THAT THE REPORT FURNISHE D BY SHRI RAJ KUMAR SHROTIYA WAS CORRECT AND THE AO BELIEVED THE SAME. THE AO NOTED THAT THE ASSESSEE OPERATED THE BANK ACCOUNT NO. 5060 WITH SB I IN THE FAKE NAME OF SUSHNA AND HAS CREDITED RS.41,31,432/- ON DIFFERENT DATES IN THIS BANK ACCOUNT DURING THE FINANCIAL YEAR RELEVANT TO ASSES SMENT YEAR UNDER APPEAL. 7. THE AO NOTED THAT SINCE THE ASSESSEE HAS NOT FUR NISHED ANY EXPLANATION WITH REGARD TO THE CREDIT OF RS.41,31,432/- IN THIS BANK ACCOUNT, THEREFORE, THESE DEPOSITS MADE BY THE ASSESSEE ARE FROM UNDISC LOSED SOURCES AND THE SAME IS LIABLE TO BE ADDED U/S. 69/69A OF THE IT AC T. THE THEORY OF PEAK WAS ITA NO.322/AGRA/2012 5 REJECTED BECAUSE THE MONEY HAS NOT BEEN CIRCULATED BY WAY OF WITHDRAWALS AND DEPOSITS OF ANY BUSINESS ACTIVITIES. 8. THE AO ALSO CONSIDERED THE DEPOSIT IN ANOTHER BA NK ACCOUNT NO. 6831 MAINTAINED WITH STATE BANK OF INDIA, LOHAMANDI, AGR A. REFERENCE WAS ALSO MADE TO THE ACCOUNT OPENING FORM OF CANARA BANK ACC OUNT NO. 16129 IN THE NAME OF SUSHNA WHICH HAS BEEN OPERATED AND MAINTAIN ED BY THE ASSESSEE AND THE ADDRESS GIVEN AT OPENING FORM AS E-291, KAMLA N GAR, AGRA WAS ALSO NOT FOUND PERTAINING TO SUSHNA. THE AO, THEREFORE, NOTE D THAT THERE WAS NOBODY BY THE NAME OF SUSHNA AND THE BANK ACCOUNT IN QUEST ION HAS BEEN OPERATED BY THE ASSESSEE WHICH IS PROHIBITED BY LAW AND THEN IT WAS CONCLUDED THAT THE ADDITION OF RS. 41,31,432/- SHALL HAVE TO BE MADE I N THE HANDS OF ASSESSEE WHICH WAS MADE VIDE ASSESSMENT ORDER DATED 30.12.20 10 U/S.143(3)/147/263 OF THE IT ACT. 9. THE ASSESSEE CHALLENGED THE ADDITION AND REOPENI NG OF ASSESSMENT BEFORE THE LD. CIT(A). BOTH THE CONTENTIONS OF THE ASSESSEE WERE REJECTED. THE LD. CIT(A) NOTED THAT THE PRESENT PROCEEDINGS HAVE BEEN INITIATED BECAUSE OF THE ORDER PASSED U/S. 263 OF THE ACT, THEREFORE, TH E AO IS BOUND TO FOLLOW THE ORDER. THE ISSUE OF REOPENING CANNOT BE AGITATED IN THE PRESENT APPEAL ITA NO.322/AGRA/2012 6 BECAUSE REOPENING WAS DONE IN THE ORIGINAL PROCEEDI NGS. AS REGARDS MERIT OF THE CASE, THE LD. CIT(A) NOTED THAT THE PERUSAL WIT H NAKED EYES SHOWS THAT HAND WRITING AVAILABLE ON SUMMONS DATED 13.12.2010 TALLIES WITH THE DOCUMENTS COLLECTED FROM STATE BANK OF INDIA, KAMLA NAGAR, AGRA. ACCORDINGLY, THE APPEAL WAS DISMISSED. 10. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH T HE ORDERS OF THE AUTHORITIES BELOW. THE AO MADE ADDITION OF RS.41,31 ,432/- IN THE HANDS OF THE ASSESSEE BECAUSE THE SB ACCOUNT NO. 5060 WITH STATE BANK OF INDIA, KAMLA NAGAR, AGRA WAS FOUND TO BE OPERATED BY THE ASSESSE E. THE ASSESSEE, HOWEVER, DENIED MAINTENANCE OF ANY SUCH BANK ACCOUNT OR HAVI NG OPERATED THE SAME. THE AO APPOINTED HAND WRITING EXPERT SHRI RAJ KUMAR SHROTIYA WHO HAS GIVEN HIS REPORT DATED 28.12.2010 (PB-190) AND HAS COMPAR ED HAND WRITING AVAILABLE ON SUMMON DATED 13.12.2010. COPY OF SUMMO N DATED 13.12.2010 IS FILED AT PAGE 220 OF THE PAPER BOOK, IN WHICH SIGNA TURE OF THE ASSESSEE ARE THERE IN TOKEN OF RECEIPT OF NOTICE. THE SIGNATURE OF THE ASSESSEE ARE IN THE NAME OF SUBHRA AGARWAL. HOWEVER, THE HAND WRITING EXPERT SHRI RAJ KUMAR SHROTIYA COMPARED THE SIGNATURE OF THE ASSESSEE WIT H THAT OF SUSHNA WHICH APPEARS TO BE IN HINDI OR EVEN IF THE SAME ARE IN E NGLISH WHERE IS A QUESTION OF ITA NO.322/AGRA/2012 7 COMPARISON OF THE SAME SIGNATURE TO THAT OF THE SIG NATURE OF THE ASSESSEE? IT IS NOT CLARIFIED WHY THE DEPARTMENT HAS NOT REFERRED T HE MATTER TO THE GOVERNMENT AGENCY FOR OBTAINING THE REPORT OF HAND WRITING EXPERT IN THIS REGARD. IT IS ALSO NOT EXPLAINED WHY THE PRIVATE HA ND WRITING EXPERT WAS ENGAGED AND WHO HAS AUTHORIZED FOR THE SAME ON BEHA LF OF THE REVENUE DEPARTMENT. THE ASSESSEE ON RECEIPT OF THE REPORT W AS EXAMINED BY THE AO ON OATH, IN WHICH SHE HAS DENIED TO HAVE MAINTAINED AN Y SUCH BANK ACCOUNT IN QUESTION AND ALSO DENIED HER SIGNATURE ON ANY CHEQU E. SHE HAS ALSO DENIED OPERATING ANY BANK ACCOUNT IN THE NAME OF SUSHNA. T HE ASSESSEE ALSO ENGAGED TWO EXPERTS NAMELY SHRI O.P. TANEJA ND ROOPAK KASHY AP WHO HAVE FILED THEIR REPORTS ON 30.12.2010 (PB-221 AND 197) WHICH SUPPOR T THE CASE OF THE ASSESSEE THAT THE SIGNATURE IN QUESTION DOES NOT TA LLY WITH THE ADMITTED SIGNATURE OF THE ASSESSEE. THESE REPORTS ALSO SUGGE ST THAT THE SIGNATURE OF ASSESSEE IN ENGLISH WERE COMPARED WITH HINDI WORD SUSHNA. EXCEPT THESE MATERIALS ON RECORD, THE AO HAS NOT BROUGHT ANY OTH ER MATERIAL ON RECORD TO PROVE THAT THE ASSESSEE MAINTAINED THE BANK ACCOUNT IN QUESTION WITH SBI, AGRA. 11. THE RECORDS REVEAL THAT THE AO AT THE ORIGINAL ASSESSMENT STAGE U/S. 147 OF THE ACT RECORDED THE STATEMENT OF SHRI KVS CHAHA R, BRANCH MANAGER, SBI, ITA NO.322/AGRA/2012 8 KAMLA NAGAR, AGRA U/S. 131 OF THE ACT ON 20.12.2007 (PB-47), IN WHICH HE HAS EXPLAINED THAT THE BANK ACCOUNT OPENING FORM IS NOT AVAILABLE WHICH IS BEING SEARCHED AND THE SAME COULD NOT BE PRODUCED BEFORE THE AO. HE HAS SHOWN HIS INABILITY TO PRODUCE BANK OPENING FORM OF THIS BANK ACCOUNT NO. 5060 BECAUSE THE SAME IS NOT AVAILABLE. HE WAS NOT ABLE TO EXPLAIN ANY REASON FOR THE SAME AND ALSO EXPLAINED THAT THIS ACCOUNT IS CL OSED ON 29.11.1999. NO RECORD IN THE COMPUTER IS ALSO AVAILABLE. IT WAS EX PLAINED IN HIS STATEMENT THAT THIS ACCOUNT WAS OPENED ON 07.12.1998 AND AT THAT T IME BRANCH MANAGER WAS SURESH CHAND AGARWAL WHO HAD ALREADY RETIRED. NO MA TERIAL WAS PRODUCED BY THE BRANCH MANAGER TO PROVE THAT SAID ACCOUNT WAS O PENED BY THE ASSESSEE SMT. SUBHRA AGARWAL. COPY OF STATEMENT OF SURESH CH AND AGARWAL RECORDED BY THE AO ON 22.12.2007 U/S. 131 IS FILED AT PAGE 50 O F THE PAPER BOOK IN WHICH HE HAS EXPLAINED THE PROCEDURE FOR OPENING OF NEW B ANK ACCOUNT AND EXPLAINED IN STATEMENT THAT FOR OPENING THE BANK AC COUNT, PHOTOGRAPH OF THE ACCOUNT HOLDER, HIS RESIDENTIAL ADDRESS PROOF AND I DENTITY LIKE RATION CARD ETC. SHALL HAVE TO BE OBTAINED AND NEW BANK ACCOUNT IS T O BE INTRODUCED BY ANOTHER BANK ACCOUNT HOLDER OF THE SAME BANK AND TH EREAFTER AFTER VERIFICATION OF THE DOCUMENTS, NEW BANK ACCOUNT IS OPENED AFTER VERIFYING THE IDENTITY OF THE ACCOUNT HOLDER. HE HAS EXPLAINED TH AT SB ACCOUNT NO. 5060 WAS OPENED IN THE NAME OF SMT. SUSHNA AND SHOWN HIS INA BILITY TO PRODUCE ANY ITA NO.322/AGRA/2012 9 DOCUMENT TO PROVE THE OPENING OF THE SAID BANK ACCO UNT AND NO ACCOUNT OPENING FORM ETC. WERE PRODUCED BEFORE HIM. HE HAS EXPLAINED THAT AFTER VERIFYING ALL THE THINGS, NEW BANK ACCOUNT IS OPENE D IN THIS CASE. HIS FURTHER STATEMENT WAS ALSO RECORDED ON 27.12.2007 (PB-53) I N WHICH HE HAS EXPLAINED THAT HE CAN CERTAINLY SAY THAT IT WAS NOT A BENAMI ACCOUNT. THE STATEMENT OF ASSESSEE WAS ALSO RECORDED IN WHICH SH E HAS DENIED OPENING OF ANY SUCH BANK ACCOUNT. THE CERTIFICATE OF THE BANK DATED 25.07.2007 (PB-46) IS FILED IN THE PAPER BOOK IN WHICH THE BRANCH MANA GER OF STATE BANK OF INDIA, KAMLA NAGAR, AGRA HAS REPORTED THAT ACCOUNT NO. 506 0 HAS NO CONCERN WITH THE ASSESSEE SMT. SUBHRA AGARWAL. NO OTHER DETAILS WERE EXPLAINED TO THE ASSESSEE BECAUSE THE ACCOUNT IN QUESTION PERTAINED TO SOME OTHER ACCOUNT HOLDER. IT MAY ALSO BE NOTED HERE THAT WHEN THE MAT TER WAS TAKEN FOR HEARING BY THE LD. CIT(A), THE ASSESSEE FILED DETAILED SUBM ISSIONS (PB-1) IN WHICH THE ASSESSEE AT PAGE 17 OF THE EXPLANATION CONTENDED TH AT IF REPORTS OF THE HAND WRITING EXPERT FILED BY THE ASSESSEE ARE NOT RELIED UPON, THE ASSESSEE REQUESTED THE LD. CIT(A) THAT MATTER MAY BE REFERRE D TO GOVT. EXAMINER TO EXAMINE THE HAND WRITING IN THE MATTER TO VERIFY TH E CORRECTNESS OF THE SIGNATURE OF ASSESSEE. HOWEVER, NO STEPS HAVE BEEN TAKEN BY THE LD. CIT(A) EVEN TO REFER TO THE GOVT. HAND WRITING EXPERT FOR OBTAINING THE REPORT IN THIS REGARD WHETHER THE ASSESSEE HAS OPENED THE BANK ACC OUNT IN QUESTION OR NOT. ITA NO.322/AGRA/2012 10 12. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTA NCES, MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THE REVENUE HAS FAILED TO B RING COGENT EVIDENCE ON RECORD TO CONNECT THE ASSESSEE WITH THE BANK ACCOUN T NO. 5060 MAINTAINED WITH SBI, AGRA. IT IS EXPLAINED BY THE BRANCH MANAG ER IN STATEMENT ON OATH BEFORE THE AO THAT FOR OPENING OF NEW BANK ACCOUNT, PHOTOGRAPH OF THE NEW ACCOUNT HOLDER, HIS IDENTITY PROOF ALONG WITH RESID ENTIAL PROOF ARE TAKEN ON RECORD AND THE SAME HAVE BEEN VERIFIED. NEW ACCOUNT HAS TO BE INTRODUCED BY THE EXISTING ACCOUNT HOLDER OF THE SAME BANK. HOWEV ER, NONE OF THE ABOVE EVIDENCES HAVE BEEN BROUGHT ON RECORD TO PROVE THAT THE ASSESSEE HAS OPENED THE BANK ACCOUNT IN QUESTION IN SBI, KAMLA NAGAR, A GRA. EVEN THE ACCOUNT OPENING FORM AND SPECIMEN SIGNATURE OF THE ASSESSEE AVAILABLE WITH THE BANK HAVE ALSO NOT BEEN BROUGHT ON RECORD. THEREFORE, NO THING IS AVAILABLE ON RECORD TO CONNECT THE ASSESSEE WITH THE OPENING OF NEW BANK ACCOUNT NO. 5060 OR OPERATING THE SAME UNDER THE SIGNATURE OF A SSESSEE. THE HAND WRITING EXPERT ENGAGED BY THE AO HAS COMPARED THE SIGNATURE OF THE ASSESSEE WITH THE SUMMON DATED 13.12.2010 WHICH IS HIGHLY DOUBTFUL AN D COULD NOT BE GIVEN ANY CREDENCE. WHEN TWO DIFFERENT REPORTS OF HAND WR ITING EXPERTS WERE AVAILABLE ON RECORD, I.E., ONE ENGAGED BY THE AO AN D TWO ENGAGED BY THE ASSESSEE AND WHEN BOTH GAVE DIFFERENT VERSIONS, IT WOULD HAVE BEEN BETTER TO ITA NO.322/AGRA/2012 11 REFER THE MATTER TO THE GOVERNMENT HAND WRITING EXP ERT FOR EXAMINING THE CORRECTNESS OF THE MATTER. DESPITE REQUEST MADE BY THE ASSESSEE IN THIS REGARD BEFORE THE LD. CIT(A), NO STEPS HAVE BEEN TAKEN TO VERIFY THE HAND WRITING OF THE ASSESSEE. SINCE THE RELEVANT DOCUMENTS FOR OPEN ING OF NEW BANK ACCOUNT HAVE NOT BEEN BROUGHT ON RECORD AND NO COMPARISON H AS BEEN MADE WITH THE SAME, THEREFORE, THE AO HAS FAILED TO BRING SUFFICI ENT EVIDENCE ON RECORD TO JUSTIFY THE FINDINGS THAT THE ASSESSEE OPENED THE S AID BANK ACCOUNT UNDER HER SIGNATURE. CONSIDERING THE ABOVE, IT IS CLEAR THAT THERE IS DOUBT IN THE VERSION OF THE REVENUE DEPARTMENT TO PROVE THAT THE ASSESSE E HAS OPENED THE BANK ACCOUNT IN QUESTION. THEREFORE, NO LIABILITY CAN BE PUT UP ON ASSESSEE FOR DEPOSITS MADE IN THIS BANK ACCOUNT OF RS.41,31,432/ -. WE, THEREFORE, DO NOT FIND ANY JUSTIFICATION TO SUSTAIN THE ORDERS OF THE AUTHORITIES BELOW IN MAKING ADDITION OF RS.41,31,432/-. WE ACCORDINGLY SET ASID E THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDITION OF RS.41, 31,432/-. 13. THE ISSUE OF REOPENING OF ASSESSMENT IS NO MORE RELEVANT SINCE WE HAVE DELETED THE ADDITION ON MERITS. HOWEVER, IT MAY BE NOTED THAT REOPENING OF ASSESSMENT WAS MADE IN THE ORIGINAL ASSESSMENT PROC EEDINGS U/S. 143(3)/147 WHICH HAVE BEEN COMPLETED BY THE AO ON 31.12.2007. THEREFORE, REOPENING OF ASSESSMENT COULD BE CHALLENGED IN THE EARLIER PROCE EDINGS. SINCE THE PRESENT ITA NO.322/AGRA/2012 12 PROCEEDINGS ARISE OUT OF THE ORDER PASSED BY THE LD . CIT, AGRA U/S. 263 OF THE IT ACT, THEREFORE, SUCH AN ISSUE CANNOT BE AGITATED IN THE PRESENT PROCEEDINGS. THIS ISSUE IS LEFT FOR ACADEMIC DISCUSSION AND NEED NO FURTHER ADJUDICATION. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/02/16. SD/- SD/- (ANNAPURNA MEHROTRA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 02/02/16 *AKS/- COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR