Modinagar Rolls Ltd., Uttar Pradesh V. Addl. CIT, Ghaziabad

ITA 332/DEL/2015

• Counselvise Citation: 33220114 RSA 2015
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 15-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: O P SAPRA
• Keywords: Bogus Share capital; Tangible material; Difference of opinion; Accommodation entries; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 142(1); 234B; 147; 68; 148

Judgement Text

ITA NO S . 330 TO 332 & 334/ DEL/ 2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO S. 330, 331, 332 & 334/DEL/2015 A.Y RS . : 2007 - 08, 2008 - 09, 2009 - 10 & 2011 - 12 M/S MODINAGAR ROLLS LTD., C/O M/S SS GUPTA & CO, 165, SARDHANA ROAD, B.C. LINES, MEERUT CANTT - 250001 (PAN: AABCM0137C) VS. ADDL. COMMISSIONER OF INCOME TAX, RANGE - 1, GHAZIABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. OP SAPRA, ADV. & SH. PANKAJ GUPTA, CA DEPARTMENT BY : SH. P. DAM KANUNJNA, SR. DR DATE OF HEARING : 13 - 05 - 201 5 DATE OF ORDER : 2 9 - 05 - 201 5 ORDER PER BENCH ASSESSEE HAS FILED TH ESE APPEAL S AGAINST THE SEPARATE O RDER S PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) , GHAZIABAD P ERTAINING TO ASSESSMENT YEAR S 2007 - 08, 2008 - 09, 2009 - 10 & 2011 - 12. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON AND IDENTICAL, WE ARE THEREFORE, PROCEEDING TO DISPOSE OF THESE APPEALS BY PASSING T HIS CONSOLIDATED ORDER , BY DEALING WITH THE ITA NO. 330/DEL/2015 (A.Y. 2007 - 08) FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED IN THE ASSESSMENT YEAR 2007 - 08 ARE REPRODUCED HEREUNDER: - 1. THAT THE LEARNED ADDITIONAL COMMISSIONER OF INCOME TAX, RANG E - 1, GHAZIABAD HAS ERRED IN LAW BY ITA NO S . 330 TO 332 & 334/ DEL/ 2015 2 MAKING AN ADDITION OF RS. 1,50,00,000/ - TO THE INCOME OF THE ASSESSEE'S COMPANY BEING ISSUED CAPITAL U/S 68 OF THE INCOME TAX ACT, 1961. 2. THAT THE LEARNED A.O. HAS ERRED IN LAW AND FACTS OF THE CASE I N NOT CONSIDERING THE VARIOUS DETAILS, PLEADINGS AND WRITTEN SUBMISSIONS MADE FROM TIME TO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. THAT THE INTEREST AS CHARGED UNDER SECTION 234B AND 234C IS ILLEGAL ON VARIOUS FACTUAL AND LEGAL GROUNDS. 4. THAT TH E DEMAND OF RS. 91,38,760/ - CREATED, PURSUANT TO THIS ASSESSMENT WHICH IS A DISPUTED DEMAND, BE KINDLY STAYED TILL DISPOSAL OF THE APPEAL. 5. THAT THE SEVERAL OBSERVATIONS AS MADE AND INFERENCES DRAWN ARE UNTENABLE, INCORRECT, UNWARRANTED AND UNCALLED FOR . 6. THAT THE APPELLANT MAY TAKE ANY OTHER GROUND OR GROUNDS AT THE TIME OF HEARING OF APPEAL WITH THE KIND PERMISSION OF THE LEARNED I.T.A.T. 3. THE GROUNDS RAISED IN THE ASSESSMENT YEAR 2008 - 09 ARE REPRODUCED HEREUNDER: - 1. THAT THE LEARNED ADDITIONA L COMMISSIONER OF INCOME TAX, RANGE - 1, GHAZIABAD HAS ERRED IN LAW BY MAKING AN ADDITION OF RS. 1,50,00,000/ - TO THE INCOME OF THE ASSESSEE'S COMPANY BEING ISSUED CAPITAL U/S 68 OF THE INCOME TAX ACT, 1961. 2. THAT THE LEARNED A.O. HAS ERRED IN LAW AND FAC TS OF THE CASE IS NOT CONSIDERING THE VARIOUS DETAILS, PLEADINGS ITA NO S . 330 TO 332 & 334/ DEL/ 2015 3 AND WRITTEN SUBMISSIONS MADE FROM TIME TO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. THAT THE INTEREST AS CHARGED UNDER SECTION 234B AND 234C IS ILLEGAL ON VARIOUS FACTUAL AND LEGAL GRO UNDS. 4. THAT THE DEMAND OF RS. 88 , 51,260 / - CREATED, PURSUANT TO THIS ASSESSMENT WHICH IS A DISPUTED DEMAND, BE KINDLY STAYED TILL DISPOSAL OF THE APPEAL. 5. THAT THE SEVERAL OBSERVATIONS AS MADE AND INFERENCES DRAWN ARE UNTENABLE, INCORRECT, UNWARRANTED AND UNCALLED FOR. 6. THAT THE APPELLANT MAY TAKE ANY OTHER GROUND OR GROUNDS AT THE TIME OF HEARING OF APPEAL WITH THE KIND PERMISSION OF THE LEARNED I.T.A.T. 4. THE GROUNDS RAISED IN THE ASSESSMENT YEAR 2009 - 10 ARE REPRODUCED HEREUNDER: - 1. THAT THE LEARNED ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE - 1, GHAZIABAD HAS ERRED IN LAW BY MAKING AN ADDITION OF RS. 2 , 30 ,00,000/ - TO THE INCOME OF THE ASSESSEE'S COMPANY BEING ISSUED CAPITAL U/S 68 OF THE INCOME TAX ACT, 1961. 2. THAT THE LEARNED A.O. HAS ERR ED IN LAW AND FACTS OF THE CASE IS NOT CONSIDERING THE VARIOUS DETAILS, PLEADINGS AND WRITTEN SUBMISSIONS MADE FROM TIME TO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. THAT THE INTEREST AS CHARGED UNDER SECTION 234B AND 234C IS ILLEGAL ON VARIOUS FACTUAL AND LEGAL GROUNDS. ITA NO S . 330 TO 332 & 334/ DEL/ 2015 4 4. THAT THE DEMAND OF RS. 1 , 22 , 93420/ - CREATED, PURSUANT TO THIS ASSESSMENT WHICH IS A DISPUTED DEMAND, BE KINDLY STAYED TILL DISPOSAL OF THE APPEAL. 5. THAT THE SEVERAL OBSERVATIONS AS MADE AND INFERENCES DRAWN ARE UNTENABLE, INCORRECT, UNWARRANTED AND UNCALLED FOR. 6. THAT THE APPELLANT MAY TAKE ANY OTHER GROUND OR GROUNDS AT THE TIME OF HEARING OF APPEAL WITH THE KIND PERMISSION OF THE LEARNED I.T .A.T. 5. THE GROUNDS RAISED IN THE ASSESSMENT YEAR 2011 - 12 ARE REPRODUCED HEREUNDER: - 1. THAT THE LEARNED ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE - 1, GHAZIABAD HAS ERRED IN LAW BY MAKING AN ADDITION OF RS. 2 , 0 0,00,000/ - TO THE INCOME OF THE ASSESSEE 'S COMPANY BEING ISSUED CAPITAL U/S 68 OF THE INCOME TAX ACT, 1961. 2. THAT THE LEARNED A.O. HAS ERRED IN LAW AND FACTS OF THE CASE IS NOT CONSIDERING THE VARIOUS DETAILS, PLEADINGS AND WRITTEN SUBMISSIONS MADE FROM TIME TO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. THAT THE INTEREST AS CHARGED UNDER SECTION 234B AND 234C IS ILLEGAL ON VARIOUS FACTUAL AND LEGAL GROUNDS. 4. THAT THE DEMAND OF RS. 1 , 22 , 93,420/ - C REATED, PURSUANT TO THIS ASSESSMENT WHICH IS A DISPUTED DEMAND, BE KINDLY STAYED TILL DISPOSAL OF THE APPEAL. ITA NO S . 330 TO 332 & 334/ DEL/ 2015 5 5. THAT THE SEVERAL OBSERVATIONS AS MADE AND INFERENCES DRAWN ARE UNTENABLE, INCORRECT, UNWARRANTED AND UNCALLED FOR. 6. THAT THE APPELLANT MAY TAKE ANY OTHER GROUND OR GROUNDS AT THE TIME OF HEARING OF APPEAL WITH THE KIND PERMISSION OF THE LEARNED I.T.A.T. 6. THE BRIEF FACTS OF THE CAS E ARE THAT THIS CASE HAS BEEN SELECTED FOR SCRUTINY ON THE INFORMATION RECEIVED FROM DIT(INV.) - II, DELHI REGARD ING ACCOMMODATION ENTRIES PROVIDED BY SHRI SURENDRA KUMAR JAIN GROUP OF CASES TO VARIOUS BENEFICIARY COMPANIES AND OTHER. ACCORDINGLY, AFTER OBTAINING APPROVAL FOR ISSUANCE OF NOTICE U/S. 148 READ WITH SECTION 147 OF THE I.T. ACT, 1961, A NOTICE U/S. 148 DATED 25.3.2013 WAS ISSUED AND SERVED UPON THE ASSESSEE FIXING THE DATE FOR COMPLIANCE WITHIN 15 DAYS FROM THE DATE OF SERVICE OF NOTICE. SUBSEQUENTLY NOTICE U/S. 142(1) DATED 4.10.2014 ALONGWITH QUESTIONNAIRE WAS ALSO I SSUED BY THE AO REQUIRING VARI OUS DETAILS AND INFORMATION AS CONSIDERED NECESSARY FOR SCRUTINY OF THE CASE. IN COMPLIANCE TO THE SE NOTICES ASSESSEE S COUNSEL SH. RAMIT KAKKAR, ADVOCATE ATTENDED THE PROCEEDINGS FROM TIME TO TIME. HE REQUESTED FOR SUPPLY OF REASONS RECORDED BEFORE ISS UANCE OF NOTICE U/S. 148 WHICH WERE DULY SUPPLIED TO HIM. THE ASSESSEE IS A LIMITED COMPANY SPECIALIZING IN THE LINE OF MANUFACTURING ROLLS FOR VARIOUS INDUSTRIES. THE MAIN SUPPLY TO THE CUSTOMERS BY THE COMPANY INCLUDE PAPER, STEEL, TEXTILE, VINYL, LAM INATES, PACKAGING, ASBESTOS SHEET MANUFACTURERS, LEATHER, ALUMINUM AND COOPER FOILS, COATING PLANTS AND POLY FILMS, RELATED INDUSTRIES. AS PER AO THE ASSESSEE COMPANY HAS FAILED TO PROVE EXISTENCE OF THIRD PARTY AND ABILITY TO ADVANCE MONEY AS BOOKS OF A CCOUNT OF SAID COMPANIES HAVE NOT BEEN PRODUCED AND WHAT BUSINESS ACTIVITY THEY ARE CONDUCTING HAS NOT BEEN PROVED . T HE INVESTIGATION WING OF THIS DEPARTMENT HAS ITA NO S . 330 TO 332 & 334/ DEL/ 2015 6 ESTABLISHED THAT THE SAID COMPANIES ARE DUMMY/ PAPER COMPANIES USED BY SHRI SURENDERA KUMAR JA IN AND SHRI VIRENDRA KUMAR JA I N AS A CONDUIT TO PROVIDE ACCOMMODATION ENTRIES TO BENEFICIARIES THROUGH RTGS/CHEQUES/PO/DD IN LIEU OF CASH AND CHARGING COMMISSION FROM THEM. AO IS OF THE VIEW THAT THE ASSESSEE HAS TAKEN ACCOMMODATION ENTRIES FROM DUMMY FIRM S/ PAPER COMPANIES. THEREFORE, AN ADDITION OF RS. 1,50,00,000/ - ON ACCOUNT OF BOGUS ENTRIES, TREATING IT AS UNEXPLAINED SHARE APPLICATION MONEY, U/S. 68 IS BEING MADE T O THE INCOME OF THE ASSESSEE AND COMPLETED THE ASSESSMENT AT A TOTAL INCOME OF RS. 1,77, 41,068 U/S. 147/143(3) OF THE I.T. ACT VIDE HIS ORDER DATED 20.2.2014. 7 . AGAINST THE ORDER OF THE LD. AO, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 13 .11.201 4 HAS DISMISSED THE APPEAL OF THE ASSESSEE. 8 . AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 9. THE AFORESAID CASE CAME UP FOR HEARING BEFORE THE BENCH MANY TIMES AND ADJOURNED ON ONE AND ANOTHER PRETEXT. DURING THE PENDENCY OF THE APPEAL, THE ASSESEE S COUNSEL FILED AN ADDITIONAL GROUNDS OF APPEAL. THE CONTENTS OF THE ADDITIONAL GROUND ARE REPRODUCED AS UNDER: - PERMISSION IS HEREBY CARVED TO RAISE THE FOLLOWING GROUND OF APPEAL: ON FACTS AND UNDER THE LAW, NOTICE U/S. 148 ISSUED BY THE LD. AO I N THIS CASE IS ARBITRARY, UNJUST, ILLEGAL AND CONSEQUENTLY, THE IMPUGNED ASSESSMENT ORDER PASSED U/S. 147 BY THE LD. AO IS LIABLE TO BE QUASHED. ITA NO S . 330 TO 332 & 334/ DEL/ 2015 7 THE ABOVE ADDITIONAL GROUND OF APPEAL WAS NOT RAISED BEFORE THE LD. CIT(A) BY ASSESSEE S COUNSEL THROUGH OVE RSIGHT. THOUGH THE ISSUE OF NOTICE U/S. 148 OF THE I.T. ACT BY THE LD. AO ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING IS WHOLLY UNJUSTIFIED AND ILLEGAL. A CERTIFICATE OF THE COUNSEL WHO HAD PREPARED AND FILED THE APPEAL BEFORE THE LD. C I T (A) SH. PANKAJ GUPTA IS REPRODUCED BELOW: - TO WHOM IT MAY CONCERN THIS IS TO CERTIFY AND CONFIRM THAT I HAD PREPARED THE GROUNDS OF APPEAL IN THE APPEALS OF M/S MODINAGAR ROLLS LTD., MODINAGAR FOR THE ASSESSMENT YEARS 2007 - 08, 2008 - 09 AND 2009 - 10 FILED BEFORE THE LD. CIT(A), GHAZIABAD. IT WAS THROUGH OVERSIGHT THAT I DID NOT RAISE THE ADDITIONAL GROUND OF APPEAL AS MENTIONED IN THE ACCOMPANYING APPLICATION THOUGH OBJECTIONS TO THE ISSUE OF NOTICE U/S. 148/147 WERE DULY FILED BEFORE THE AO. F OR S.S. GUPTA & CO. CHARTERED ACCOUNTANTS SD/ - PARTNER PLACE: MEERUT DATE: 18/03/2015 THE APPELLANT RELIES ON THE FOLLOWING CASE LAWS ON THE ADMISSION OF ADDITIONAL GROUND OF APPEAL BY THE ITAT : - 229 ITR 383 NATIONAL THERM AL POWER CORPN. CO. LTD. VS CIT [SC] ITA NO S . 330 TO 332 & 334/ DEL/ 2015 8 - 30 ITD, INDO JAVA & CO. VS. IAC (DELHI ITAT, SPECIAL BENCH) - 193 ITR 624 CIT VS. KERALA STATE COOP. MARKETING FEDERATION LTD. (KERALA HIGH COURT) - 194 ITR 448 INVENTORS INDUSTRIAL CORPORATION LTD. VS. CIT (BOMBAY HIG H COURT) - 198 ITR 3 TAYLOR INSTRUMENT CO. (INDIA) LTD. CIT (DELHI HIGH COURT) - 200 ITR 275 CIT VS. MAHALAKSHMI SUGAR MILLS CO. (DELHI HIGH COURT) IT IS PRAYED THAT THE ABOVE ADDITIONAL GROUND MAY KINDLY BE ENTERTAINED AND DISPOSED OF ON MERITS AFTER HEARING THE APPELLANT S COUNSEL. 10. AT THE TIME OF HEARING I.E. ON 13.5.2015, LD. COUNSEL OF THE ASSESSEE REQUESTED THAT BEFORE PROCEEDING ON MERIT IN THE CASE OF THE ASSESSEE, FIRST THE ADDITIONAL GROUND RAISED BY THE ASSESSEE MAY BE CONSIDERED AND DECIDED. 11. LD. DR ALTHOUGH OBJECTED TO THE REQUEST OF THE ASSESSEE S COUNSEL , BUT COULD NOT CONTROVERT THE FACTUAL MATRIX NARRATED BY THE LD. COUNSEL FOR THE ASSESSEE. 12. WE HAVE HEARD BOTH PARTIES ON THE ADMISSION OF ADDITIONAL GROUND S , AS AFORESAID. AFTER GOING THROUGH THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE ON ADMISSION OF ADDITIONAL GROUNDS IN WHICH THE LD. COUNSEL OF THE ASSESSEE HAS CITED VARIOUS DECISIONS ON THE LEGAL ISSUES RAISED BY THE ASSESSEE, WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE, THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE MENTIONED IN PARA NO. 9 AT PAGE NO. 6 - 7 OF THIS ORDER ARE PURELY LEGAL ITA NO S . 330 TO 332 & 334/ DEL/ 2015 9 AND DO NOT REQU IRE FRESH FACTS WHICH IS TO BE INVESTIGATED AND GO TO THE ROOT OF THE MATTER. IN THE INTEREST OF JUSTICE, WE ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE, IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT OF INDIA IN THE CASE OF NTPC LIMITED 229 ITR 383 AND PROCEED TO DECIDE THE ADDITIONAL GROUND FIRST. 13. LD. COUNSEL OF THE ASSESSEE STATED THAT ON THE FACTS AND UNDER THE LAW, NOTICE U/S. 148 ISSUED BY THE AO IN THIS CASE IS ARBITRARY, UNJUST, ILLEGAL AND CONSEQUENTLY, THE IMPUGNED ASSESS MENT ORDER PASSED U/S. 147 BY THE AO IS LIABLE TO BE QUASHED. IN SUPPORT OF HIS CONTENTION ASSESSEE S COUNSEL FILED THE WRITTEN SYNOPSIS. FOR THE SAKE OF CONVENIENCE, WE ARE REPRODUCING HEREWITH THE WRITTEN SYNOPSIS FILED BY THE ASSESSEE AS UNDER: - SYNOPSIS WITH REGARD TO ADDITIONAL GROUND OF APPEAL AGAINST THE VALIDITY AND LEGALITY OF REASSESSMENT ORDER PASSED U/S 147/148 OF LT. ACT 1. THE A O HAD RECORDED HIS REASONS FOR ISSUING NOTICE U/S 147 OF IT. ACT AS PER COPY PLACED AT PAGE 41 OF THE PAPER BOOK. 2. THE APPELLANT HAD FILED ITS OBJECTIONS AGAINST THE ISSUE OF NOTICE U/S 148, COPY PLACED AT PAGES 42 - 49 OF THE PAPER BOOK. 3. THE A O HAD NO T PASSED ANY ORDER ON THE OBJECTIONS RAISED BY THE ASSESSEE AND CONSEQUENTLY THE IMPUGNED R:EASSESSMENT ORDER AS PASSED U/S 147/148 IS ILLEGAL AND VOID AB - INITIO. APPELLANT RELIES ON THE DECISION OF HON'BLE APEX COURT IN THE CASE OF GKN DRIVESHAFTS(LNDIA) LTD. VS. INCOME - TAX OFFICER AND OTHERS - 259 ITR 19 (SC) IN WHICH IT WAS HELD THAT THE A O HAD TO DISPOSE OF THE OBJECTIONS, IF FILED, BY ITA NO S . 330 TO 332 & 334/ DEL/ 2015 10 PASSING A SPEAKING ORDER BEFORE PROCEEDING WITH THE ASSESSMENTS FOR THOSE YEARS. FAILURE TO PASS SUCH AN ORDER HAS VIT IATED THE IMPUGNED REASSESSMENT ORDER ULS 147/148 OF THE I. T. ACT WHICH DESERVES TO BECANCELLED/QUASHED/ANNULLED. 4. THE IMPUGNED REASSESSMENT IS ALSO ILLEGAL BECAUSE IN THE REASONS RECORDED, THERE W AS NO SPECIFIC ALLEGATION THAT THE APPELLANT HAD FAILED TO TRULY DISCLOSE ANY MATERIAL FACTS AT THE T IME OF ASSESSMENT AND CONSEQUENTLY, THE I MPU G NED REASSESSMENT PROCEEDINGS ARE ILLEGAL AND WITHOUT JURISDICTION. RE LIANCE IS PLACED ON DELHI H.C. JUDGMENT IN 357 ITR 24 CIT VS. SUREN INTERNATIONAL P LTD. 5. RE LIANCE IS ALSO PLACED ON THE FOLLOWING CASE LAWS: - 357 ITR 646, CIT VS. VINIYAS FINANCE & INVESTMENT P LTD (DELHI H.C.), IN WHICH IT WAS HELD THAT IN THE REASONS FOR THE NOTICE ULS 147, THERE WAS NO MENTION OF THE ASSESSEE NOT HAVING MADE A FULL AND TRU E DISCLOSURE OF THE MATERIAL FACTS NECESSARY FOR ASSESSMENT. - 357 ITR 330 CIT VS. INSECTICIDES INDIA LTD. (DELHI H.C.) - 338 ITR 51, SIGNATURE HOTELS PVT. LTD. VS. ITO (DELHI H.C.). IN THIS CASE, IT WAS HELD THAT THE REASSESSMENT PROCEEDINGS INITIATED ON THE BASIS OF INFORMATION RECEIVED FROM THE DIT (INV) THAT THE PETITIONER HAD ITA NO S . 330 TO 332 & 334/ DEL/ 2015 11 INTRODUCED MONEY AMOUNTING TO RS.5 LACS FROM A CO. S WAS NOTHING BUT AN ACCOMMODATION ENTRY AND THE ASSESSEE WAS A BENEFICIARY. THE REASONS DID NOT SATISFY THE REQUIREMENT OF SECTION 148 OF THE LT. ACT. THE AO DID NOT APPLY HIS OWN MIND TO THE INFORMATION AND EXAMINE THE BASIS AND MATERIAL OF THE INFORMATION. THE REASSESSMENT PROCEEDINGS WERE NOT VALID AND WERE LIABLE TO BE QUASHED. 6. THERE IS YET ANOTHER ASPECT OF THE MATTE R. IN THE REASONS RECORDED, COPY PLACED AT PAGE 41 OF THE PAPER BOOK, THE ID. AO HAD ISSUED NOTICE ULS 148 BY MAKING THE FOLLOWING OBSERVATIONS: 'THE ASSESSEE OF THIS RANGE, M/S MODI NAGAR ROLLS UD. HAS TAKEN ENTRIES FROM THE CONCERN ENTRY PROVIDER SHRI SURENDER KUMAR JAIN GROUP OF CASES. DURING THE YEAR UNDER CONSIDERATION MLS MODI NAGAR ROLLS LTD. HAS TAKEN AN ENTRY OF RS.1,45,OO,000 / - FROM HILL RIDGE INVESTMENT LTD. NISHA HOLDINGS LTD . AND SHALINI HOLDINGS LTD. BY CHECK THROUGH UTI, HDFC AND AXIS BANK THROUGH SHRI PANKAJ OF MEERUT. I HAVE VERIFIED THE RECORD. IT IS PERTINENT TO MENTION HERE THAT IN A.Y. 2010 - 11 ASSESSMENT OF ABOVE REFERRED COM PANY M / S MODI NAGAR ROLLS LTD. WAS PASSED BY THE UNDERSIGNED. ON ENQUIRY MADE BY UNDERSIGNED AND NON FURNISHING OF COMPLETE DETAIL OF CAPACITY, CREDIT WORTHINESS AND GENUINENESS COULD NOT BE PROVED AND ADDITION OF ULS 68 WAS MADE IN CASE OF ENTRY RECEIVE FROM MLS SHALINI HOLDINGS AND MLS APOORVA LEASING FINANCE & INVESTMENT PVT. LTD. MLS SHALINI HOLDINGS FINDS NAME IN THE LIST OF ENT RY ITA NO S . 330 TO 332 & 334/ DEL/ 2015 12 PROVIDER . HENCE, I HAVE REASON TO BELIEVE THAT THE SHARE APPLICATION MONEY TAKEN BY COMPANY IS NOTHING BUT THEIR OWN UNAC COUNTED MONEY INTRODUCE BY WAY OF BOGUS SHARE APPLICATION MONEY. HENCE, I HAVE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT'. FROM THE ABOVE, IT IS EVIDENT THAT THE ID. AO HAD ISSUED NOTICE ULS 148 IN RESPECT OF THE SHARE APPLICATION MONEY OF MLS SHALINI HOLDINGS LTD. WHICH HAD INVESTED SHARE APPLICATION OF RS.25,OO,000 / - ONLY AND THEREFORE, THE ID. AO WAS NOT JUSTIFIED IN MAKING ADDITIONS OF RS.1,50,00,000 / - BY ADDING THE SHARE APPLICATION MONEY PROVIDED BY THE OTHER TWO LIMITED COS. BESIDES S/SH. ADITYA GUPTA AND ASHISH GUPTA. 7. MOREOVER, THE REASONS HAVE BEEN RECORDED ON THE BASIS OF MERE CHANGE OF OPINION BECAUSE THE ID. AO HAD DULY EXAMINED THE SHARE CAPITAL PROVIDED BY ALL THE THREE LIMITED COS. AND ALSO BY S/SH. ADITYA GUPTA AND ASHISH GUPT A BY PROPER APPLICATION OF HIS MIND IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS WHICH STANDS PROVED FROM THE FOLLOWING: A) COPIES OF THE ORDER SHEET ENTRY DATED 27/10/2009, ATTACHED AS ANNEXURE I TO THESE SYNOPSIS, RELEVANT PORTION OF WHICH IS REPROD UCED BELOW AT PAGES 6 - 7 'ATTEND SH. PANKAJ GUPTA CA. HE FILES ASKED DETAILS. PLEASE FILE THE FOLLOWING DETAILS: ITA NO S . 330 TO 332 & 334/ DEL/ 2015 13 (I) COMPLETE DETAILS OF RECEIPTS OF SHARE APPLICATION MONEY, GIVING NAMES AND COMPLETE ADDRESSES, PAN, WARD / CIRCLE OF THE INVESTOR. FILE CONFIRMATIONS, COPY OF BANK ALC AND THEIR ITR. B) COPIES OF ORDER SHEET ENTRY DATED 04/11/2009, ATTACHED AS ANNEXURE I TO THESE SYNOPSIS, RELEVANT PORTIO N OF WHICH IS REPRODUCED BELOW AT PAGES 7 - 8 'ATTEND SH. PANKAJ GUPTA CA . HE FILES THE DETAILS C) COPY OF THE COVERING LETTER FILED BEFORE THE AO TO THE ABOVE ORDER SHEET ENTRY ATTACHED AS ANNEXURE 11 TO THESE SYNOPSIS, RELEVANT PORTION OF WHICH IS REPRODUCED BELOW: AT PAGE 10. (I) COMPLETE DETAIL OF SHARE APPLICATION MONEY AS ALLOTTED IS ENCLOSED WITH FORM NO. 2 AND BOARD RESOLUTION, NAME AND ADDRESSES OF ALLOTTEES AND COPY OF CHALLANS FROM PAGES NO. 544 TO PAGE NO. 549. COPY OF FORM NO. 2 AS FILED WITH ROC IS PLACED AT PAGES 96 - 100 OF THE PAPER BOOK. (II) COMPLETE COPIES OF SHARE APPLICATION MONEY, BOARD RESOLUTIONS, COPY OF BANK CERTIFICATES, CONFIRMATION LETTER WITH COPY OF INCORPORATION CERTIFICATE AND INCOME - T AX ACKNOWLEDGEMENT ARE ENCLOSED FROM PAGE NO. 504 - 543'. COPIES OF THE SHARE APPLICATIONS FORMS, BANK ST ATEMENTS, BALANCE SHEETS ETC. ARE PLACED AT PAGES 101 - 176 OF THE PAPER BOOK. ITA NO S . 330 TO 332 & 334/ DEL/ 2015 14 THEREFORE, THE IMPUGNED REASSESSMENT PROCEEDINGS INITIATED ARE ILLEGAL FOR WHICH, RELIANCE IS PLACED ON THE FOLLOWING CASE LAWS: - 360 ITR 380, NTPC LTD. VS. DY. CIT DATED 07/03/ 2013 (DELHI H.C.), HEAD NOTES ARE REPRODUCED BELOW: 'THE ISSUE OF CHANGE OF OPINION IS EQUALLY RELEVANT FOR MATTERS IN WHICH THE REOPENING IS SOUGHT TO BE DONE BEYOND FOUR YEARS, AS IT IS TO CASES WHERE THE REOPENING IS WITHIN FOUR YEARS OF THE END OF THE RELEVANT ASSESSMENT YEAR. HELD, ALLOWING THE PETITIONS, THAT NOTICES ISSUED UNDER SECTION 148 OF THE INCOME - TAX ACT, 1961, SEEKING TO REOPEN THE CONCLUDED ASSESSMENTS UNDER SECTION 147 PERTAINING TO THE ASSESSMENT YEARS 1999 - 2000, 2001 - 02, 2002 - 03 AND 20 03 - 04 WERE NOT VALID'. - 363 ITR 603, NOT SYSTEMS AND ANOTHER VS. ITO DATED 04/12/2012 (BOMBAY HIGH COURT ), I N WHICH AT PAGE 611 & 612, IT WAS HELD AS UNDER: 'THEREFORE, THE IMPUGNED NOTICE AND THE REASONS IN SUPPORT THEREOF CLEARLY INDICATES THAT IT HAS BEEN ISSUED MERELY ON THE BASIS OF CHANGE OF OPINION AND WOULD AMOUNT TO A REVIEW OF THE ASSESSMENT ORDER DATED 11 / 12/2003. FURTHER, THE REASONS FOR REOPENING AS COMMUNICATED BY THE PETITIONER IS NOT ON THE BASIS OF ANY T ANGIBLE MATERIA L BUT MERELY ON VE RIFICATION OF THE MATE RIAL AND PRIMARY FACTS ALREADY ON RECORD THAT THE ASSESSING OFFICER HAS DULY CONSIDERED WHILE PASSING THE ORDER DATED 11 / 12 / 2003 FOR ASSESSMENT ITA NO S . 330 TO 332 & 334/ DEL/ 2015 15 YEAR 2007 - 08. THERE IS NO FRESH TANGIBLE MATERIAL WHICH WOULD WARRANT TAKING A VIEW DIFFE RENT FROM THE ONE TAKEN DURING THE REGULAR ASSESSMENT PROCEEDINGS. IN FACT EVEN THE ORDER DATED 15 / 10/2012 DISPOSING OF THE OBJECTIONS CLEARLY RECORDS THAT RADIOGRAPHY CHARGES AND LABOR CHARGE S WERE MADE TO VARIOUS PERSONS LIKE SENIOR TECHNICIANS, SENIOR R ADIOGRAPHER AND JR. TECHNICIANS ETC. FROM THE CHART SUBMITTED IN THE REGULAR ASSESSMENT PROCEEDING LEADING TO ORDER DATED 11 / 12/2009. THEREFORE, IT IS VERY CLEAR THAT IMPUGNED NOTICE FOR REASSESSING THE ASSESSMENT YEAR 2007 - 08 HAS BEEN ISSUED MERELY ON CHA NGE OF OPINION AND IN FACT SEEKS TO REVIEW THE ASSESSMENT WHICH IS ALREADY COMPLETED. .. IN VIEW OF THE ABOVE, WE FIND THAT THE IMPUGNED NOTICE DATED 28 / 3 / 2012 IS BAD IN LAW AS THE SAME HAS BEEN ISSUED MERELY ON ACCOUNT OF CHANGE OF OPINION AND AMOUNTS TO REVIEW OF ASSESSMENT ORDER DATED 11 / 12/2009. IN THE CIRCUMSTANCES, THE PETITION IS ALLOWED AND THE NOTICE DATED 28 / 3 / 2012 ISSUED UNDER SECTION 148 OF THE ACT IS QUASHED AND SET ASIDE'. - 362 ITR 72, SIDHI VINAYAK TRANSPORT VS. ACIT DATED 22 / 04/ 2013 (GUJARAT HIGH COURT), HEAD NOTES ARE REPRODUCED BELOW: 'HELD, ALL OWING THE PETITION, THAT THIS WAS NOT A CASE WHERE THE' ASSESSING OFFICER, WHILE FRAMING THE ORIGINAL SCRUTINY ASSESSMENT, DID NOT EXAMINE THE ASSESSEE'S CLAIM TO DEDUCTION. HE WAS ACTU ALLY ITA NO S . 330 TO 332 & 334/ DEL/ 2015 16 CONSCIOUS OF SUCH A CLAIM AND WAS ALSO OF THE OPINION THAT THE ENTIRE CLAIM WAS NOT REQUIRED TO BE GRANTED. HE CALLED FOR AN EXPLANATION OF THE ASSESSEE AND AFTER TAKING INTO CONSIDE R ATION THE EXPLANATION, MADE DISALLOWANCE TO THE EXTENT HE WAS CONVIN CED IT WAS NECESSARY. IF, IN THE PROCESS, HE MADE A LEGAL ERROR, THE SUCCEEDING ASSESSING OFFICER COULD NOT CORRECT SUCH AN ERROR, THROUGH THE PROCESS OF REOPENING OF THE ASSESSMENT. THE NOTICE WAS NOT VALID'. THE ABOVE CASE LAWS APPLY TO THE FACTS OF APP ELLANT'S CASE ALSO BECAUSE AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS, THE AMOUNTS RECEIVED FROM THE SHAREHOLDER COS. WERE DULY EXAMINED AND ACCEPTED BY THE A O BY PROPER APPLICATION OF MIND. IN VIEW OF THE ABOVE FACTS AND THE LEGAL POSITION, THE REASSESSMENT PROCEEDINGS INITIATED U/S 147/148 ARE ILLEGAL AND IT IS, THEREFORE, PRAYED THAT THE SAME MAY KINDLY BE QUASHED/ANNULLED. 14. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY THE LD. CIT(A). HE STATED THAT ASSESSEE HAS NOT FILED AN Y EVIDENCE REGARDING ITS FILING THE OBJECTIONS BEFORE THE AO ON THE ISSUANCE OF NOTICE U/S. 148 OF THE I.T. ACT. SECONDLY, HE STATED THAT THE AO SHOULD HAVE DECIDE THE OBJECTIONS IF ANY, BUT ON THIS ACCOUNT ASSESSMENT CANNOT BE DECLARED VOID AB INITIO. I N SUPPORT OF HIS CONTENTION, HE RELIED UPON THE DIVISION BENCH DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. NOVA PROMOTERS AND FINLEASE (P) LTD. (2012) 342 ITR 169 (DEL). ITA NO S . 330 TO 332 & 334/ DEL/ 2015 17 15. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS, SPECIALLY THE PAPER BOOK FILED BY THE ASSESSEE, ORDERS OF THE REVENUE AUTHORITIES , WRITTEN SUBMISSIONS FILED BY THE LD. COUNSEL OF THE ASESSEE. AS REGARDS THE EFFECTIVE GROUND IN THIS APPEAL RELATING TO REASSESSMENT PROCEEDINGS U/S. 148 OF THE I.T. ACT I S CONCERNED, WE ARE OF THE VIEW THAT THE AO HAS ISSUED NOTICE U/S. 148 OF THE I.T. ACT, AFTER RECORDING THE FOLLOWING REASONS WHICH IS AT PAGE 41 OF THE PAPER BOOK. REASONS FOR THE BELIEF THAT INCOME HAS ESCAPED ASSESSMENT INFORMATION RECEIVED FROM D IT(INV.) - II, ARA CENTRE JHANDEWALAN EXTN., NEW DELHI LETTER F.NO.DIT(INV.) - II/U/S.148/2012 - 13/240, DATED 15.03.2013 REGARDING ACCOMMODATION ENTRIES PROVIDED BY SHRI SURENDRA KUMAR LAIN GROUP OF CASES TO VARIOUS BENEFICIARY COMPANIES & OTHERS. THE ASSESS EE OF THIS RANGE. M/S. MODI NAGAR ROLLS LTD. HAS TAKEN ENTRIES FROM THE CONCERN ENTRY PROVIDER SHRI SURENDRA KUMAR JAIN GROUP OF CASES. DURING THE YEAR UNDER CONSIDERATION M/S MODI NAGAR ROLLS LTD. HAS TAKEN AN ENTRY OF RS. 1,45,00,000/ - FROM HILLRIDGE IN VESTMENT LTD.,NISHA HOLDING LTD AND SHALINI HOLDINGS LTD. BY CHECK THROUGH UTI, HDFC AND AXIS BANK THROUGH SHRI PANKAJ OF MEERUT. I HAVE VERIFIED THE RECORD. IT IS PERTINENT TO MENTION HERE THAT IN A.Y. 2010 - 11 ASSESSMENT OF ABOVE REFERRED COMPANY M/S. MOD I NAGAR ROLLS LTD. WAS PASSED BY THE UNDERSIGNED, ON ENQUIRY MADE BY UNDERSIGNED ITA NO S . 330 TO 332 & 334/ DEL/ 2015 18 AND NON FURNISHING OF COMPLETE DETAIL THE CAPACITY, CREDITWORTHINESS AND GENUINENESS COULD NOT BE PROVED AND ADDITION OF ULS 68 WAS MADE IN CASE OF ENTRY RECEIVED FROM M/S. SH ALINI HOLDING AND MI S , APOORVA LEASING FINANCE & INVESTMENT PVT. LTD . M /S SHALINI HOLDING FINDS NAME I N THE LIST OF ENTRY PROVIDER. HENCE, I HAVE REASON TO BELIEVE THAT THE SHARE APPLICATION MONEY TAKEN BY COMPANY IS NOTHING BUT THEIR OWN UNACCOUNTED MONEY INTRODUCE BY WAY OF BOGUS SHARE APPLICATION MONEY. HENCE, I HAVE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. 25.03.2013 SD/ - (RADHEY SHYAM) ADDL. COMMISSION ER OF INCOME - TAX, RANGE - I. GHAZIABAD.. 1 5.1 AFTER EXAMINING THE PAPER BOOK FILED BY THE ASSESSEE ALONGWITH WRITTEN SUBMISSIONS, WE FIND THAT THE ASSESSEE HAS ALSO FILED ITS OBJECTIONS DATED 22.1.2014 TO THE AO ON THE ISSUANCE OF NOTICE U/S. 148 OF TH E I.T. ACT COPY OF WHICH IS PLACED AT PAGE 42 OF THE PAPER BOOK, THOSE WERE NOT DECIDED BY THE AO TILL THE COMPLETION OF THE ASSESSMENT. IN OUR VIEW, THIS IS CONTRARY TO THE PRESCRIBED LAW AND THE ASSESSMENT COMPLETED BY THE AO IS VOID AB INITIO AND DE SERVE TO BE QUASHED AND ACCORDINGLY, WE QUASH THE ASSESSMENT. OUR VIEW IS SUPPORTED BY THE JUDGMENT OF THE HON BLE APEX COURT IN THE CASE OF GKN DRIVESHAFTS(LNDIA) LTD. VS. INCOME - TAX OFFICER AND OTHERS - 259 ITR 19 (SC) IN WHICH IT WAS HELD THAT THE A O HAD TO DISPOSE OF THE OBJECTIONS, IF FILED, BY PASSING A SPEAKING ORDER BEFORE PROCEEDING WITH THE ASSESSMENTS FOR THOSE YEARS. ITA NO S . 330 TO 332 & 334/ DEL/ 2015 19 FAILURE TO PASS SUCH AN ORDER HAS VITIATED THE IMPUGNED REASSESSMENT ORDER ULS 147/148 OF THE I.T. ACT WHICH DESERVES TO BE A NNULLED /QUASHED. 15.2 LD. COUNSEL FOR THE ASSESSEE ARGUED THAT THE AO REOPENED THE ASSESSMENT OF THE ASSESSEE ON THE BASIS OF THE EVIDENCE ALREADY ON RECORD WITH THE AO WHICH THE ASSESSEE HAS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS MEANING TH EREBY AO HAS NOT BROUGHT ANY FRESH EVIDENCE WHICH WAS NOT ON RECORD OR IN OTHER WORDS, NO FRESH EVIDENCE WAS AVAILABLE WITH THE AO FOR REOPENING THE ASSESSMENT IN DISPUTE. HE REQUESTED THAT ASSESSMENT IN DISPUTE MAY BE CANCELLED, BECAUSE THE AO HAS WRONGLY REOPENED THE CASE OF THE ASSESSEE BY ISSUING THE NOTICE U/S. 148 OF THE I.T. ACT WITHOUT ANY FRESH EVIDENCE AND SIMILARLY THE LD CIT(A) HAS ALSO UPHELD THE INVALID ASSESSMENT BY PASSING THE IMPUGNED ORDER WHICH DESERVES TO BE CANCELLED. HE ALSO FILED THE SYNOPSIS, AS MENTIONED ABOVE IN WHICH HE HAS RAISED VARIOUS ISSUES FOR DECLARING THE ASSESSMENT ORDER INVALID AND ALSO MENTIONED VARIOUS DECISIONS RENDERED BY THE HON BLE SUPREME COURT OF INDIA, HON BLE HIGH COURT OF INDIA AND THE TRIBUNAL. LD. COUNSEL OF THE ASSESSEE FURTHER REQUESTED THAT THE NOTICE U/S. 148 IS ILLEGAL AND ASSESSMENT MAY BE CANCELLED. 15.3 AFTER PERUSING THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE ALONGWITH VARIOUS DECISIONS RENDERED BY THE HON BLE SUPREME COURT OF INDIA AND THE HON BLE HIGH COURT ON THE ISSUE IN DISPUTE. WE HAVE PERUSED THE ORDER SHEET OF THE AO AND WE FIND THAT WHILE RECORDING THE REASONS BY THE AO, THE AO HAS MENTIONED THE NAMES OF THREE FIRMS NAMELY HILLRIDGE INVESTMENT LTD; NISHA HOLDINGS LTD AND SHALINI HOLDINGS LTD. AND STATED THAT THE AO HAD ISSUED NOTICE U/S ITA NO S . 330 TO 332 & 334/ DEL/ 2015 20 148 IN RESPECT OF THE SHARE APPLICATION MONEY OF M/S SHALINI HOLDINGS LTD. WE ALSO FIND THAT VIDE THE ORDER SHEET ENTRY 27.10.2009 AND 4.11.2009, THE AO CALLED THE DETAILS OF THREE PARTIES AND IN RESPONSE THERETO THE ASSESSEE FILED COMPLETE DETAILS OF SHARE APPLICATION MONEY AS ALLOTTED, BOARD RESOLUTIO N, NAME AND ADDRESS OF ALLOTTEES AND COPY OF CHALLANS, COPY OF FORM NO. 2 AS FILED WITH ROC, COPY OF BANK CERTIFICATE, CONFIRMATION LETTER WITH COPY OF INCORPORATION CERTIFICATE AND INCOME TAX ACKNOWELDGEMENT, BALANCE SHEETS ETC. BEFORE THE AO., THE AO EXAMINED THE SAME AND COMPLETED THE ASSESSMENT U/S. 143(3) OF THE I.T. ACT, MEANING THEREBY THE AO HAS EXAMINED ALL THE DETAILS, CREDITWORTHINESS OF THE TRANSACTIONS AND IDENTITY OF THE CREDITOR, HENCE, IN VIEW OF THE ABOVE, THE REASSESSMENT PROCEEDINGS I NITIATED U/S. 147/148 ARE ILLEGAL AND IS LIABLE TO BE QUASHED. OUR VIEW IS SUPPORTED BY THE FOLLOWING JUDGMENTS / DECISIONS VIZ. : - - HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SIGNATURE HOTELS P. LTD. VS. INCOME TAX OFFICER [2011] 338 ITR 0051 WHE REIN THE HON BLE HIGH COURT HAS HELD MATTER AS UNDER: - HELD, ALLOWING THE PETITION, THAT THE REASSESSMENT PROCEEDING WERE INITIATED ON THE BASIS OF INFORMATION RECEIVED FROM THE DIRECTOR OF INCOME TAX (INVESTIGATION) THAT THE PETITIONER HAD INTRODUCED MONEY AMOUNTING TO RS. 5 LACS DURING THE FINANCIAL YEAR 2 002 - 03 AS ITA NO S . 330 TO 332 & 334/ DEL/ 2015 21 STATED IN THE ANNEXURE. ACCORDING TO THE INFORMATION, THE AMOUNT RECEIVED FROM A COMPANY, S, WAS NOTHING BUT AN ACCOMMODATION ENTRY AND THE ASSESEE WAS THE BENEFICIARY. THE REASONS DID NOT SATISFY THE REQUIREMENTS OF SECTION 147 OF THE ACT. TH ERE WAS NO REFERENCE TO ANY DOCUMENT OR STATEMENT, EXCEPT THE ANNEXURE. THE ANNEXURE COULD NOT BE REGARDED AS A MATERIAL OR EVIDENCE THAT PRIMA FACIE SHOWED OR ESTABLISHED NEXUS OR LINK WHICH DISCLOSED ESCAPEMENT OF INCOME. THE ANNEXURE WAS NOT A POINT ER AND DID NOT INDICATE ESCAPEMENT OF INCOME. FURTHER, THE ASSESSING OFFICER DID NOT APPLY HIS OWN MIND TO THE INFORMATION AND EXAMINE THE BASIS AND MATERIAL OF THE INFORMATION. THERE WAS NO DISPUTE THAT THE COMPANY, S, HAD A PAID - UP CAPITAL OF RS. 90 LA KHS AND WAS INCORPORATED ON JANUARY 4, 1989, AND WAS ALSO ALLOTTED A PERMANENT ACCOUNT NUMBER IN SEPTEMBER, 2001. THUS, IT COULD NOT BE HELD TO BE A FICTITIOUS PERSON. THE REASSESSMENT PROCEEDINGS WERE NOT VALID AND WERE LIABLE TO BE QUASHED. - 357 ITR 646, CIT VS. VINIYAS FINANCE & INVESTMENT P LTD (DELHI H.C.), IN WHICH IT WAS HELD THAT IN THE REASONS FOR THE NOTICE ULS 147, THERE WAS NO MENTION OF THE ASSESSEE NOT HAVING MADE A FULL AND TRUE DISCLOSURE OF THE MATERIAL FACTS NECESSARY FOR ASSESSME NT. ITA NO S . 330 TO 332 & 334/ DEL/ 2015 22 - 362 ITR 72, SIDHI VINAYAK TRANSPORT VS. ACIT DATED 22104/2013 (GUJARAT HIGH COURT), HEAD NOTES ARE REPRODUCED BELOW: 'HELD, ALLOWING THE PETITION, THAT THIS WAS NOT A CASE WHERE THE' ASSESSING OFFICER, WHILE FRAMING THE ORIGINAL SCRUTINY ASSES SMENT, DID NOT EXAMINE THE ASSESSEE'S CLAIM TO DEDUCTION. HE WAS ACTUALLY CONSCIOUS OF SUCH A CLAIM AND WAS ALSO OF THE OPINION THAT THE ENTIRE CLAIM WAS NOT REQUIRED TO BE GRANTED. HE CALLED FOR AN EXPLANATION OF THE ASSESSEE AND AFTER TAKING INTO CONSIDE RATION THE EXPLANATION, MADE DISALLOWANCE TO THE EXTENT HE WAS CONVINCED IT WAS NECESSARY. IF, IN THE PROCESS, HE MADE A LEGAL ERROR, THE SUCCEEDING ASSESSING OFFICER COULD NOT CORRECT SUCH AN ERROR, THROUGH THE PROCESS OF REOPENING OF THE ASSESSMENT. THE NOTICE WAS NOT VALID - 360 ITR 380 NTPC LTD, VS. DCIT DATED 7.3.2013 (DELHI HC) (SUPRA). HELD, ALLOWING THE PETITIONS, THAT NOTICES ISSUED UNDER SECTION 148 OF THE INCOME - TAX ACT, 1961, SEEKING TO REOPEN THE CONCLUDED ASSESSMENTS UNDER SECTION 147 PERTAININ G TO THE ASSESSMENT YEARS 1999 - 2000, 2001 - 02, 2002 - 03 AND 2003 - 04 WERE NOT VALID. - 363 ITR 603 NDT SYSTEMS AND ANOTHER VS ITO DATED 4.12.2001 (BOMBAY HIGH COURT) (SUPRA). ITA NO S . 330 TO 332 & 334/ DEL/ 2015 23 'THEREFORE, THE IMPUGNED NOTICE AND THE REASONS IN SUPPORT THEREOF CLEARLY INDICATES THAT IT HAS BEEN ISSUED MERELY ON THE BASIS OF CHANGE OF OPINION AND WOULD AMOUNT TO A REVIEW OF THE ASSESSMENT ORDER DATED 11/12/2003. FURTHER, THE REASONS FOR REOPENING AS COMMUNICATED BY THE PETITIONER IS NOT ON THE BASIS OF ANY TANGIBLE MATERIAL BUT MERELY ON VERIFICATION OF THE MATERIAL AND PRIMARY FACTS ALREADY ON RECORD THAT THE ASSESSING OFFICER HAS DULY CONSIDERED WHILE PASSING THE ORDER DATED 11/12/2003 FOR ASSE SSMENT YEAR 2007 - 08. THERE IS NO FRESH TANGIBLE MATERIAL WHICH WOULD WARRANT TAKING A VIEW DIFFERENT FROM THE ONE TAKEN DURING THE REGULAR ASSESSMENT PROCEEDINGS. IN FACT EVEN THE ORDER DATED 15/10/2012 DISPOSING OF THE OBJECTIONS CLEARLY RECORDS THAT RADI OGRAPHY CHARGES AND LABOR CHARGES WERE MADE TO VARIOUS PERSONS LIKE SENIOR TECHNICIANS, SENIOR RADIOGRAPHER AND JR. TECHNICIANS ETC. FROM THE CHART SUBMITTED IN THE REGULAR ASSESSMENT PROCEEDING LEADING TO ORDER DATED 11/12/2009. THEREFORE, IT IS VERY CLEA R THAT IMPUGNED NOTICE FOR REASSESSING THE ASSESSMENT YEAR 2007 - 08 HAS BEEN ISSUED MERELY ON CHANGE OF OPINION AND IN FACT SEEKS TO REVIEW THE ASSESSMENT WHICH IS ALREADY COMPLETED. .. IN VIEW OF THE ABOVE, WE FIND THAT THE IMPUGNED NOTICE DATED 28/3/2012 IS BAD IN ITA NO S . 330 TO 332 & 334/ DEL/ 2015 24 LAW AS THE SAME HAS BEEN ISSUED MERELY ON ACCOUNT OF CHANGE OF OPINION AND AMOUNTS TO REVIEW OF ASSESSMENT ORDER DATED 11/12/2009. IN THE CIRCUMSTANCES, THE PETITION IS ALLOWE D AND THE NOTICE DATED 28/3/2012 ISSUED UNDER SECTION 148 OF THE ACT IS QUASHED AND SET ASIDE'. 16. IN VIEW OF ABOVE, WE ARE OF THE CONSIDERED VIEW THAT ABOVE ISSUE IS EXACTLY THE SIMILAR TO THE ISSUE INVOLVED IN THE PRESENT APPEAL AND SQUARELY COVERE D BY THE AFORESAID DECISION S OF THE DIFFERENT HON BLE HIGH COURT S . HENCE, RESPECTFULLY FOLLOWING THE ABOVE PRECEDENT S , WE DECIDE THE LEGAL ISSUE IN DISPUTE IN FAVO U R OF THE ASSESSEE AND AGAINST THE REVENUE AND ACCORDINGLY QUASH THE REASSESSMENT PROCEEDIN GS. THE OTHER ISSUES ARE NOT DEALT WITH AS THE SAME HAVE BECOME ACADEMIC IN NATURE. 17. THE LEGAL ISSUE IN DISPUTE IN THE OTHER 3 APPEALS (ITA NO. 331 - 332 & 334/DEL/2015 (A.YRS. 2008 - 9, 2009 - 10 & 2011 - 12) IS IDENTICAL TO ITA NO. 330/DEL/2015 (AY 2 007 - 08), AS ADMITTED BY BOTH THE PARTIES . SINCE WE HAVE DECIDED TH E ISSUE IN DISPUTE I.E. RELATING TO ISSUANCE OF NOTICE U/S. 148 OF THE I.T. ACT IN FAVOR OF THE ASSESSEE AND QUASHED THE ASSESSMENT, IN ITA NO. 330/DEL/2015 (A.Y. 2007 - 08) , FOLLOWING THE SAME REASONING AS AFORESAID, WE QUASH THE ASSESSMENT IN THE OTHER 03 APPEALS I.E. ITA NO. 331, 332 & ITA NO S . 330 TO 332 & 334/ DEL/ 2015 25 334/DEL/2015 (AYRS. 2008 - 09, 2009 - 10 & 2011 - 12 ALSO AND DECIDE THE ISSUE RELATING ISSUANCE OF NOTICE U/S. 148 IN FAVOR OF THE ASSESSEE. 1 8 . IN THE RESULT, ALL THE FOUR APPEAL S FILED BY THE ASSESSEE STAND ALLOWED . ORDER PRONOUNCED IN THE O PEN C OURT ON 2 9 /05 /20 1 5 . S D / - S D / - [ N.K. SAINI] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 2 9 / 05 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES