Dominion Investment Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 34/DEL/2013

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2566 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 03-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Unexplained investment; Opportunity of being heard; Question of law; Assessment record; Right to appeal
• Section: 292BB; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SH. AMIT SHUKLA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA NO. 34/DEL/2013 : ASSTT. YEAR : 2002-03 DOMINION INVESTMENT PVT. LTD., C/O O.P. SAPRA & ASSOCIATES, ADV., C-763, NEW FRIENDS COLONY, NEW DELHI-110025 VS INCOME TAX OFFICER, WARD-10(4), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A AACD3199A ASSESSEE BY : SH. SATISH AGGARWAL, CA REVENUE BY : SH. AVIKAL MANU, SR. DR DATE OF HEARING: 11.11.2020 DATE OF PRONOUNCEMENT: 27.11.2020 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-XVIII, NEW DELHI, DATED 09.10.2012. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: 1. THAT THE LD. AO HAD ERRED ON FACTS AND UNDER TH E LAW WITHOUT BRINGING ANY CONCLUSIVE EVIDENCE ON RECORD IN MAKING AN ADDITION OF RS. 17,76,209/- ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT U/S 69 OF I.T. ACT ON THE GROUND THAT SUCH AMOUNT WAS ALLEGEDLY PAID IN CASH OUTSIDE ITS BOOKS OF ACCOUNT S TO M/S V.K. TOURS & TRANSPORT. 2. THAT THE LD. CIT(A) HAD NO JURISDICTION TO MAKE ENHANCEMENT OF ADDITION FROM RS.17,76,209/- TO RS.49,02,000/- RESULTING IN ENHANCED ADDITION OF RS.31,25,791/- ON ACCOUNT OF ALLEGED PURCHASE OF ITA NO. 34/DEL/2013 DO MINION INVESTMENT PVT. LTD. 2 VEHICLE WITHOUT GIVING A NOTICE/REASONABLE OPPORTUN ITY OF BEING HEARD TO THE APPELLANT FOR MAKING SUCH ENHANCEMENT AS PROVIDED U/S 251(2) OF I.T. ACT AND CONSEQUENTLY, THE ENHANCED ADDITION OF RS.31,25,791/- AS MADE BEING WHOLLY ILLEGAL, DESERV ES TO BE DELETED. 3. THAT WITHOUT PREJUDICE TO ABOVE, ADDITION OF RS. 17,76,209/- AS MADE BY THE AO BEING WHOLLY UNJUST, ARBITRARY AND UNTENABLE, OUGHT TO HAVE BEEN DELETED BY THE LD. CIT(A) AND THERE WAS ALSO NO JUSTIFICATI ON ON THE PART OF LD. CIT(A) BOTH ON FACTS AND UNDER T HE LAW IN ENHANCING THE ABOVE ADDITION OF RS.17,76,209/- TO RS.49,02,000/- RESULTING IN ENHANCED ADDITION OF RS.31,25,791/- ON ACCOUNT OF ALLEGED PURCHASE OF VEHICLE WITHOUT BRINGING ANY CONCLUSIVE EVIDENCE ON RECORD TO SUPPORT THE ADDITI ON AS MADE. AT ANY RATE, WITHOUT PREJUDICE, THE ADDITI ON AS MADE IS VERY EXCESSIVE. 4. THAT THE LD. AO HAD ERRED ON FACTS AND UNDER THE LAW WITHOUT BRINGING ANY CONCLUSIVE EVIDENCE ON RECORD TO PROVE CESSATION OF LIABILITIES U/S 41 OF I.T. ACT AND IN MAKING ADDITIONS OF RS.86,41,464/- IN RESPECT M/S KOTAK SECURITIES AND RS.2,85,05,964/- I N RESPECT OF M/S OMEX INVESTMENT & FINANCE LTD. 5. THAT THE LD. CIT(A) HAD NO JURISDICTION TO MAKE ENHANCEMENT OF ADDITION FROM RS.86,41,464/- TO RS.93,98,872/- RESULTING IN ENHANCED ADDITION OF RS.7,57,408/- IN RESPECT OF M/S KOTAK SECURITIES AN D FROM RS.2,85,05,964/- TO RS.4,87,83,959/- RESULTING IN ENHANCED ADDITION OF RS.2,02,77,995/- IN RESPECT OF OMEX INVESTMENT & FINANCE LTD. ON ACCOUNT OF CESSATION OF LIABILITIES U/S 41 OF I.T. ACT WITHOUT GIVING A NOTICE/REASONABLE OPPORTUNITY OF BEING HEA RD TO THE APPELLANT FOR MAKING SUCH ENHANCEMENT AS PROVIDED U/S 251(2) OF I.T. ACT AND CONSEQUENTLY TH E ENHANCED ADDITION OF RS.2,10,35,403/- (RS.7,57,408 + RS.2,02,77,995) AS MADE BEING WHOLLY ILLEGAL BOTH ON FACTS AND LAW, DESERVES TO BE DELETED. 6. THAT WITHOUT PREJUDICE TO ABOVE, ADDITION OF RS.3,71,47,428/- AS MADE BY THE AO BEING WHOLLY ITA NO. 34/DEL/2013 DO MINION INVESTMENT PVT. LTD. 3 UNJUST, ARBITRARY AND UNTENABLE, OUGHT TO HAVE BEEN DELETED BY THE LD. CIT(A) AND THERE WAS ALSO NO JUSTIFICATION ON THE PART OF LD. CIT(A) BOTH ON FAC TS AND UNDER THE LAW IN ENHANCING THE ABOVE ADDITION FROM RS.3,71,47,428/- TO RS.5,81,82,831/- RESULTING IN ENHANCED ADDITION OF RS. 2,10,35,403/-ON ACCOUNT OF CESSATION OF LIABILITIES U/S 41 OF I.T. ACT WITH OUT BRINGING ANY CONCLUSIVE EVIDENCE ON RECORD TO SUPPO RT THE ADDITION AS MADE. AT ANY RATE, WITHOUT PREJUDIC E, THE ADDITION AS MADE IS VERY EXCESSIVE. VARIOUS OBSERVATIONS MADE BY THE CIT(A) IN THE APPELLATE ORDER ARE EITHER INCORRECT OR ARE UNTENAB LE. THE SUBMISSIONS MADE SUPPORTED BY DOCUMENTARY EVIDENCE HAD EITHER BEEN IGNORED OR HAD NOT BEEN APPRECIATED PROPERLY. 7. THAT WITHOUT PREJUDICE TO ABOVE GROUNDS, THE TOT AL INCOME AS ASSESSED AT RS.6,26,02,713/- AFTER GIVING EFFECT TO CIT(A) ORDER AND THE INCOME-TAX DEMAND CREATED THEREON AT RS.5,19,61,820/- VIDE ORDER U/S 250/143(3)/148 DATED 26/11/2012 IS ARBITRARY, UNJUS T AND AT ANY RATE, WITHOUT PREJUDICE, VERY EXCESSIVE. 8. THAT THE LEVY OF INTEREST U/S 234 VIDE INCOME-TA X COMPUTATION FORM DATED 26/11/2012 AT RS. 2,96,12,650/- IS WHOLLY UNJUST AND ILLEGAL. AT ANY RATE, WITHOUT PREJUDICE, THE LEVY OF SUCH INTEREST IS VERY EXCESSIVE. 3. THE ASSESSEE HAS FILED ADDITIONAL GROUNDS BEFORE THE TRIBUNAL ON 26.11.2018 AND REQUESTED FOR ADMISSION OF THE SAME. THE ADDITIONAL GROUNDS READ AS UNDER: 1. THE REOPENING OF ASSESSMENT IS ILLEGAL, BAD IN LAW AND THE ASSESSMENT ORDER PASSED PURSUANT TO SUCH ILLEGAL ASSUMPTION OF JURISDICTION IS VOID AB-INITI O WHICH DESERVES TO BE QUASHED. 4. DURING THE HEARING FOR THE ADMISSION OF THE ADDI TIONAL GROUND, THE LD. DR OPPOSED FOR ADMISSION OF ADDITIO NAL GROUND ITA NO. 34/DEL/2013 DO MINION INVESTMENT PVT. LTD. 4 ARGUING THAT THIS IS NOT THE TIME TO RAISE SUCH GRO UNDS AS THE AO AND LD. CIT (A) HAVE NOT BEEN CONFRONTED WITH AN Y SUCH OBJECTION AND RAISING OF THE TECHNICAL GROUND AT TH IS JUNCTURE CANNOT BE ADMITTED. 5. THE LD. AR ARGUED THAT THE GROUND RAISED BEING A LEGAL GROUND AND GOES TO THE ROOT OF THE MATTER, THE SAME MAY BE ADMITTED. HE PLACED RELIANCE ON THE ORDER IN THE CA SE OF NATIONAL THERMAL POWER CO. LTD. VS COMMISSIONER OF INCOME TAX ON 4 DECEMBER, 1996, (229 ITR 383), THE ADDITIO NAL GROUND FILED BY THE ASSESSEE IS ACCEPTED. THE RELEVANT POR TION OF THE JUDGMENT IS AS UNDER: UNDER SECTION 254 OF THE INCOME-TAX ACT, THE APPELL ATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THE REON AS IT THINKS FIT. THE POWER OF THE TRIBUNAL IN DEAL ING WITH APPEALS IS THUS EXPRESSED IN THE WIDEST POSSIBLE TE RMS. THE PURPOSE OF THE ASSESSMENT PROCEEDINGS BEFORE TH E TAXING AUTHORITIES IS TO ASSESS CORRECTLY THE TAX L IABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. IF, FOR EXAMPLE , AS A RESULT OF A JUDICIAL DECISION GIVEN WHILE THE APPEA L IS PENDING BEFORE THE TRIBUNAL, IT IS FOUND THAT A NON -TAXABLE ITEM IS TAXED OR A PERMISSIBLE DEDUCTION IS DENIED, WE DO NOT SEE ANY REASON WHY THE ASSESSEE SHOULD BE PREVE NTED FROM RAISING THAT QUESTION BEFORE THE TRIBUNAL FOR THE FIRST TIME, SO LONG AS THE RELEVANT FACTS ARE ON RECORD I N RESPECT OF THAT ITEM. WE DO NOT SEE ANY REASON TO R ESTRICT THE POWER OF THE TRIBUNAL UNDER SECTION 254 ONLY TO DECIDE THE GROUNDS WHICH ARISE FROM THE ORDER OF TH E COMMISSIONER OF INCOME-TAX (APPEALS). BOTH THE ASSE SSEE AS WELL AS THE DEPARTMENT HAVE A RIGHT TO FILE AN APPEAL/CROSS-OBJECTIONS BEFORE THE TRIBUNAL. WE FAI L TO SEE WHY THE TRIBUNAL SHOULD BE PREVENTED FROM CONSIDERING QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS ALTHOUGH NOT RAISED EARLIER. 6. IN THE CASE OF JUTE CORPORATION OF INDIA LTD. V. C.I.T. THIS COURT, WHILE DEALING WITH THE POWERS OF THE AP PELLATE ASSISTANT COMMISSIONER OBSERVED THAT AN APPELLATE AUTHORITY HAS ALL THE POWERS WHICH THE ORIGINAL AUT HORITY MAY HAVE IN DECIDING THE QUESTION BEFORE IT SUBJECT TO THE ITA NO. 34/DEL/2013 DO MINION INVESTMENT PVT. LTD. 5 RESTRICTIONS OR LIMITATIONS, IF ANY, PRESCRIBED BY THE STATUTORY PROVISIONS. IN THE ABSENCE OF ANY STATUTO RY PROVISION, THE APPELLATE AUTHORITY IS VESTED WITH A LL THE PLENARY POWERS WHICH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. THERE IS NO GOOD REASON TO JUSTIFY CURTAILMENT OF THE POWER OF THE APPELLATE ASSISTANT COMMISSIONER IN ENTERTAINING AN ADDITIONAL GROUND R AISED BY THE ASSESSEE IN SEEKING MODIFICATION OF THE ORDE R OF ASSESSMENT PASSED BY THE INCOME-TAX OFFICER. THIS C OURT FURTHER OBSERVED THAT THERE MAY BE SEVERAL FACTORS JUSTIFYING THE RAISING OF A NEW PLEA IN AN APPEAL A ND EACH CASE HAS TO BE CONSIDERED ON ITS OWN FACTS. THE APP ELLATE ASSISTANT COMMISSIONER MUST BE SATISFIED THAT THE G ROUND RAISED WAS BONA FIDE AND THAT THE SAME COULD NOT HA VE BEEN RAISED EARLIER FOR GOOD REASONS. THE APPELLATE ASSISTANT COMMISSIONER SHOULD EXERCISE HIS DISCRETI ON IN PERMITTING OR NOT PERMITTING THE ASSESSEE TO RAISE AN ADDITIONAL GROUND IN ACCORDANCE WITH LAW AND REASON . THE SAME OBSERVATIONS WOULD APPLY TO APPEALS BEFORE THE TRIBUNAL ALSO. 7. THE VIEW THAT THE TRIBUNAL IS CONFINED ONLY TO I SSUES ARISING OUT OF THE APPEAL BEFORE THE COMMISSIONER O F INCOME-TAX (APPEALS) TAKES TOO NARROW A VIEW OF THE POWERS OF THE APPELLATE TRIBUNAL [VIDE, E.G., C.I.T , V. ANAND PRASAD (DELHI), C.I.T. V. KARAMCHANDPREMCHAND P. LTD. AND C.I.T. V. CELLULOSE PRODUCTS OF INDIA LTD. UNDOUBTEDLY, THE TRIBUNAL WILL HAVE THE DISCRETION TO ALLOW OR NOT ALLOW A NEW GROUND TO BE RAISED. BUT WHERE T HE TRIBUNAL IS ONLY REQUIRED TO CONSIDER A QUESTION OF LAW ARISING FROM THE FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS WE FAIL TO SEE WHY SUCH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO COR RECTLY ASSESS THE TAX LIABILITY OF AN ASSESSEE. 8. THE REFRAMED QUESTION, THEREFORE, IS ANSWERED IN THE AFFIRMATIVE, I.E., THE TRIBUNAL HAS JURISDICTION TO EXAMINE A QUESTION OF LAW WHICH ARISES FROM THE FACTS AS FO UND BY THE AUTHORITIES BELOW AND HAVING A BEARING ON THE T AX LIABILITY OF THE ASSESSEE. WE REMAND THE PROCEEDING S TO THE TRIBUNAL FOR CONSIDERATION OF THE NEW GROUNDS R AISED BY THE ASSESSEE ON THE MERITS. 6. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT OF THE HONBLE APEX COURT, THE ADDITIONAL GROUNDS TAKEN UP BY THE ASSESSEE ARE HEREBY ADMITTED. THE MATTER IS TAKEN UP FOR ADJ UDICATION. ITA NO. 34/DEL/2013 DO MINION INVESTMENT PVT. LTD. 6 7. AT THE OUTSET, THE LD. AR ARGUED THAT THE ASSESS EE HAS NOT BEEN PROVIDED WITH THE COPY OF THE REASONS RECORDED WHIL E ISSUING THE NOTICE U/S 148 OF THE INCOME TAX ACT, 1961. THE LD. AR PRODUCE D THE LETTER DATED 28.08.2018 REQUESTING THE ITO, WARD 7(4), FOR THE C OPY OF REASONS RECORDED FOR REOPENING OF THE ASSESSMENT IN THE CAS E OF THE ASSESSEE. THE SCANNED COPY OF THE LETTER OF THE ASSESSEE IS AS UN DER: THE INCOME TAX OFFICER, WARD-7(4), C.R. BUILDING, NEW DELHI-110002 REF: CASE ITAT APPEAL 627/239/18 DAT ED 28.08.2018 SUB: REQUEST FOR FURNISHING COPY OF REASONS RECORDE D IN WRITING FOR REOPENING THE ASSESSMENT OF M/S DOMINIO N INVESTMENT (P) LTD. FOR THE ASSESSMENT YEAR 2002-03 , ITA NO. 34/DEL/2013. DEAR SIR, WE ON BEHALF AND INSTRUCTIONS OF OUR CLIENT ABOVE N AMED IN THE CAPTIONED MATTER REQUEST YOUR HONOUR TO FURNISH US A COPY OF THE REASONS RECORDED IN WRITING FOR REOPENING THE A SSESSMENT FOR THE ABOVE ASSESSMENT YEAR. THE ITAT HEARING IN THE ABOVE CASE IS FIXED FOR 06. 09.2018 IN VIEW OF WHICH THE SAME MAY BE FURNISHED AT EARLIEST . A POWER OF ATTORNEY IN OUR FAVOUR IS ENCLOSED. WE MAY BE INTIMATED THE REQUISITE COPYING FEE TO EN ABLE US TO DEPOSIT THE FEE. THANKING YOU, YOURS FAITHFULLY SD/- (SATISH AGGARWAL) ITA NO. 34/DEL/2013 DO MINION INVESTMENT PVT. LTD. 7 8. THE ITO WARD 7(4) VIDE LETTER DATED 10.06.2019 F URNISHED HIS REPLY SAYING THAT THE ASSESSMENT RECORD IS PRESENTLY NOT TRACEABLE. THE SCANNED COPY OF THE REPLY OF THE ITO IS AS UNDER: OFFICE OF THE CENTRAL PUBLIC INFORMATION OFFICER, INCOME TAX OFFICER WARD 7(4), NEW DELHI, ROM NO. 41 3-F, 4 TH FLOOR, C.R. BUILDING, I.P. ESTATE, NEW DELHI-110002 F.NO. ITO/WARD-7(4)/CPIO/TRI/2019-20 DATE: 10.06.2019 NAME OF THE APPLICANT SH. SATINDER PAL SINGH DATE OF RECEIPT OF APPLICATION 16.05.2019 DATE OF ORDER 10.06.2019 ORDER UNDER SECTION 7(1) OF THE RIGHT TO INFORMATIO N ACT, 2005 KINDLY REFER TO YOUR APPLICATION UNDER THE RTI ACT, 2005 DATED 14.05.2019. YU HAVE REQUESTED VIDE ABOVE RTI APPLICATION FOR PR OVIDING COPY OF REASONS RECORDED IN WRITING FOR REOPENING OF ASSESS MENT OF M/S DOMINION INVESTMENT (P) LTD. A.Y. 2002-03 WHICH IS REQUIRED BY YOU TO PRESENT CASE OF M/S DOMINION INVESTMENT (P) LTD. FOR A.Y. 2002-03 BEFORE THE INCOME TAX APPELLATE TRIBUNAL, D ELHI. IN THIS REGARD, IT IS STATED THAT THE ASSESSMENT RE CORD OF M/S DOMINION INVESTMENT (P) LTD. PAN: AAACD3199A FOR A. Y. 2002-03 IS PRESENTLY NOT TRACEABLE. AS THE DOCUMENTS REQUES TED BY YOU ARE PART OF THE ASSESSMENT RECORD WHICH IS NOT TRACEABL E, THIS OFFICE IS UNABLE TO PROVIDE YOU THE COPY O REASONS RECORDED F OR REOPENING OF ASSESSMENT IN THE CASE. IF AGGRIEVED, THE APPLICANT, WITHIN 30 DAYS FROM TH E RECEIPT OF THIS ORDER, MAY PREFER APPEAL AGAINST THIS ORDER BEFORE THE ADDL. COMMISSIONER OF INCOME TAX. RANGE-7, ROOM NO. 407, 4 TH FLOOR, CENTRAL REVENUE BUILDING, I.P. ESTATE, NEW DELHI. SD/- (N.S. MEENA) CPIO, INCOME TAX OFFICER, WARD-7(4), NEW DELHI. ITA NO. 34/DEL/2013 DO MINION INVESTMENT PVT. LTD. 8 9. THE LD. DR SUBMITTED HIS WRITTEN REPLY WHICH IS A S UNDER: THIS APPEAL HAS BEEN MADE BY THE ASSESSEE AGAINST T HE ID. CIT(A) ORDER DATED 09/10/2012 IN APPEAL NO. 42/10-11 CONFI RMING VARIOUS ADDITIONS AND ALSO ENHANCEMENT IN ONE GROUND. THE ASSESSEE HAS TAKEN MAINLY 7 GROUNDS OF APPEAL A GAINST THE LD. CIT(A) ORDER. THE ID.CIT(A) WHILE DEALING WITH VARI OUS GROUNDS TAKEN BEFORE HIM DURING APPEALLATE PROCEEDINGS BY THE ASS ESSEE, HAS ELABORATELY DISCUSSED THE ISSUES AND HAS CONSIDERED THE CONTENTION OF THE ASSESSING OFFICER AS WELL AS HIS OWN VIEWS. THE ORDER OF LD. CIT(A) IS RELIED UPON FOR THESE MAIN 7 GROUNDS OF APPEAL. FURTHER, ADDITIONAL GROUND HAS BEEN TAKEN BEFORE THE HONBLE ITAT WITH REGARD TO THE REOPENING OF THE ASSESSMENT PROCEEDINGS. IN THIS RE GARD, FOLLOWING SUBMISSIONS OF REVENUE MAY KINDLY BE CONSIDERED. ADDITIONAL GROUND BY ASSESSEE BEFORE HONBLE ITAT: THE REOPENING OF ASSESSMENT IS ILLEGAL, BAD IN LAW AND THE ASSESSMENT ORDER PASSED PURSUANT TO SUCH ILLEGAL ASSUMPTION OF JURISDICTION IS VOID- AB-INITIO WHICH DESERVES TO BE QUASHED. REVENUES ARGUMENT ON THE ABOVE ISSUE: FROM THE PERUSAL OF ASSESSMENT ORDER, IT IS NOTED T HAT THE ASSESSEE COMPANY HAS NOT RAISED ANY OBJECTION REGARDING THE ASSUMPTION OF JURISDICTION BEFORE THE ASSESSING OFFICER BEFORE CO MPLETION OF ASSESSMENT PROCEEDINGS. ON THIS ISSUE REFERENCE IS DRAWN TO SECTION 292BB OF INCOME TAX ACT, 1961 WHICH STATES AS FOLLO WS: 'WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING O R CO-OPERATED IN ANY ENQUIRY RELATING TO AN ASSESSMENT OR REASSESSME NT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVE D UPON HIM IN ITA NO. 34/DEL/2013 DO MINION INVESTMENT PVT. LTD. 9 TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR ENQUIRY UNDER THIS ACT THAT THE NOTICE WAS (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER: PROVIDED THAT NOTING CONTAINED IN THIS SECTION SHAL L APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPL ETION OF SUCH ASSESSMENT OR REASSESSMENT. 2. IT IS FURTHER STATED THAT THE ASSESSEE COMPANY H AS NOT RAISED THE ABOVE GROUND BEFORE LD. CIT(A) DURING THE APPELLATE PROCEEDINGS. REGARDING THE SUBMISSION OF ASSESSMENT FOLDER, IT H AS BEEN STATED BY THE AO THAT THE ASSESSMENT RECORD IS PRESENTLY NOT TRACEABLE AS THE ASSESSMENT RECORD PERTAINS TO PRIOR RESTRUCTURING P ERIOD. 10. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PER USED THE MATERIAL AVAILABLE ON RECORD. 11. DURING THE HEARING PROCEEDINGS, THE REVENUE HAS BEEN ASKED WHETHER THEY WOULD IN A POSITION TO FURNISH THE REA SONS RECORDED EVEN AT THIS JUNCTURE FOR WHICH THE REPLY RECEIVED HAS BEEN IN NEGATIVE. HAVING GONE THROUGH THE FACTUM OF THE CASE, WE HEREBY ALLO W THE APPEAL OF THE ASSESSEE AS THE REASONS RECORDED FOR REOPENING HAVE NOT BEEN FURNISHED TO THE ASSESSEE OR PRODUCED BEFORE THE TRIBUNAL WIT H A LIBERTY TO THE REVENUE TO APPROACH THE TRIBUNAL WHENEVER THE REASO NS ARE TRACED AND MADE AVAILABLE. ITA NO. 34/DEL/2013 DO MINION INVESTMENT PVT. LTD. 10 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/11/2020. SD/- SD/- (AMIT SHUKLA) (DR. B . R. R. KUMAR) JUDICIAL MEMBER ACCOUNTA NT MEMBER DATED: 27/11/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR