BAYER PHARMACEUTICALS P.LTD, MUMBAI V. ACIT CIR 15(3), MUMBAI

ITA 3745/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1886 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-02-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 10-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR SINGH
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Wrong claim; Revised return
• Section: 143(3); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO.3745/MUM/2013 (ASSESSMENT YEAR 2004-05) BAYER PHARMACEUTICALS PVT. LTD. (SUCCESSOR TO BAYER POLYCHEM INDIA LTD.), BAYER HOUSE, CENTRAL AVENUE, HIRANANDANI ESTATE, THANE (W) -400607 PAN: AABCB 3852F ...... APPELLANT VS. THE ASSTT. COMMISSIONER OF INCOME TAX 10(3), AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400020. .... RESPONDENT ITA NO.5100/MUM/2013 (ASSESSMENT YEAR 2004-05) THE DY. COMMISSIONER OF INCOME TAX 10(3), AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400020. .... APPELLA NT VS. M/S. BAYER PHARMACEUTICALS PVT. LTD., MUMBAI. PAN: AACCB 2271M ...RESPONDENT ITA NO.4788/MUM/2013 (ASSESSMENT YEAR 2004-05) BAYER PHARMACEUTICALS PVT. LTD. (SUCCESSOR TO BAYER POLYCHEM INDIA LTD.), BAYER HOUSE, CENTRAL AVENUE, HIRANANDANI ESTATE, THANE (W) -400607 PAN: AABCB 3852F .... APPEL LANT VS. 2 ITA NO.3745,4788&5100/MUM/2013 (ASSESSMENT YEAR 2004-05) THE ASSTT. COMMISSIONER OF INCOME TAX 10(3), AAYKAR BHAVAN,M.K.ROAD, MUMBAI 400020. .... RESPONDENT ASSESSEE BY : SHRI MAYUR KISNADWALA REVENUE BY : SHRI PRADEEP KUMAR SINGH DATE OF HEARING : 20 /10/2016 DATE OF PRONOUNCEMENT : 25/11/2016 ORDER PER G.S.PANNU,A.M: THE CAPTIONED ARE THREE APPEALS, WHICH RELATE TO TH E SAME ASSESSEE INVOLVING CERTAIN COMMON ISSUES, THEREFORE, THEY HA VE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED F OR THE SAKE OF CONVENIENCE AND BREVITY. 2. FIRST WE MAY TAKE UP THE APPEAL IN ITA NO.3745/ MUM/2013, WHICH IS DIRECTED AGAINST AN ORDER PASSED BY CIT( A)-22, MUMBAI DATED 25/02/2013, WHICH IN TURN, ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 14/12/2006. THE ASSESSEE HAS RAISED FOLLOW ING GROUNDS OF APPEAL:- AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER (A .O) AS CONFIRMED BY COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)], YOUR APPELLANT PR EFERS AN APPEAL AGAINST THE SAME ON FOLLOWING GROUNDS, WHICH, IT IS PRAYED, MAY BE C ONSIDERED WITHOUT PREJUDICE TO ONE ANOTHER. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE CIT(A) ERRED IN CONFIRMING THE ASSESSMENT ORDER, WHICH HAS BEEN PAS SED IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND HENCE, IS BAD IN LAW. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE CIT(A) ERRED IN CONFIRMING THE AO'S STAND OF NOT ACCEPTING OF 3RD R EVISED RETURN FILED U/S. 139(5) OF THE INCOME TAX, 1961. 3 ITA NO.3745,4788&5100/MUM/2013 (ASSESSMENT YEAR 2004-05) 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE AO'S STAND OF NOT CONSIDERING THE RE CTIFICATION OF ERROR CARRIED OUT IN THE COMPUTATION OF TOTAL INCOME ALONG WITH 3RD REVI SED RETURN, ON ACCOUNT OF PROVISION FOR LEAVE ENCASHMENT. 3. IN BRIEF, THE CONTROVERSY IN THIS APPEAL CAN BE UNDERSTOOD AS FOLLOWS. IN THIS CASE, ASSESSEE COMPANY ORIGINALLY FILED ITS RE TURN OF INCOME ON 01/11/2004 DECLARING A TOTAL INCOME OF RS.3,55,79,908/-, WHICH WAS DULY ACCOMPANIED BY THE STATEMENT SHOWING COMPUTATION OF TOTAL INCOME, PROFIT AND LOSS ACCOUNT, BALANCE SHEET AS AT 31/03/2004 AND OTHER SCHEDULES FORMING PART OF THE BALANCE SHEET AND AUDIT REPORT REQUIRED TO BE FILED IN TERMS OF SECTION 44AB OF THE ACT. SUBSEQUENTLY, THE ASSESSEE FILED A REVISE D RETURN ON 09/08/2005 DECLARING A TOTAL INCOME OF RS.5,37,81,184/-, WHIC H WAS ALSO AGAIN REVISED ON 24/08/2005 DECLARING TOTAL INCOME OF RS.5,83,45,984 /- ON ACCOUNT OF CERTAIN WRONG CLAIM OF DEPRECIATION MADE IN THE EARLIER RE VISED RETURN. ON 13/10/2005, ASSESSEE FILED A THIRD REVISED RETURN DECLARING AN INCOME OF RS.3,87,76,433/- CORRECTING THE EXCESS ADD-BACK MAD E EARLIER ON ACCOUNT OF UNPAID PROVISION FOR LEAVE ENCASHMENT. THE ASSESS ING OFFICER HAS FINALIZED THE ASSESSMENT UNDER SECTION 143(3) DATED 14/12/200 6, WHEREBY THE TOTAL INCOME HAS BEEN ASSESSED AT RS.5,83,71,664/- AFTER MAKING AN ADDITION OF RS.25,680/- TO THE INCOME OF RS.5,83,45,984/- DECLA RED BY THE ASSESSEE IN THE SECOND REVISED RETURN FILED ON 24/08/2005. OSTENS IBLY, THE ASSESSING OFFICER DID NOT TAKE COGNIZANCE OF THE THIRD REVISED RETURN FILED BY THE ASSESSEE ON 13/10/2005, WHEREIN THE TOTAL INCOME WAS SCALED DOW N TO RS.3,87,76,433/-. 3.1 BEFORE THE ASSESSING OFFICER, ASSESSEE POINTED OUT THAT THE INCOME OF RS.5,83,45,984/- DECLARED IN THE SECOND REVISED RET URN WAS REQUIRED TO BE CORRECTED BECAUSE INADVERTENTLY, THE UNPAID PROVISI ON FOR LEAVE ENCASHMENT 4 ITA NO.3745,4788&5100/MUM/2013 (ASSESSMENT YEAR 2004-05) WAS REPORTED AT RS.2,14,35,533/- INSTEAD OF CORRECT FIGURE OF RS.18,64,982/-, THEREBY RESULTING EXCESS ADD-BACK TO THE INCOME OF A SUM OF RS.1,95,69,551/-. THE CLAIM OF THE ASSESSEE WAS THAT THE CORRECT INCO ME COMPUTABLE WAS RS.3,82,76,433/- INSTEAD OF RS.5,83,45,984/- DECLAR ED IN THE SECOND REVISED RETURN AND, HENCE, THE FILING OF THE THIRD REVISED RETURN ON 13/10/2205. THE ASSESSING OFFICER DID NOT ACCEPT THE PLEA OF THE AS SESSEE ON THE GROUND THAT IN THE TAX AUDIT REPORT FILED UNDER SECTION 44AB OF TH E ACT THE AMOUNT REPORTED ON ACCOUNT OF UNPAID PROVISION FOR LEAVE ENCASHMENT WAS RS.2,14,35,533/-. IN VIEW OF THE SAID REASON, THE ASSESSING OFFICER DID NOT TAKE INTO CONSIDERATION THE INCOME DETERMINED IN THE THIRD REVISED RETURN F ILED ON 13/10/2005. 4. IN APPEAL BEFORE CIT(A), ASSESSEE POINTED OUT T HAT THE ACTION OF THE ASSESSING OFFICER WAS ERRONEOUS IN LAW AND ON FACTS BECAUSE THIRD REVISED RETURN FILED ON 13/10/2005 WAS WITHIN THE PERIOD P RESCRIBED UNDER SECTION 139(5) OF THE ACT AND THAT THE REVISION WAS BASED O N JUSTIFIABLE GROUND. THE CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSIN G OFFICER AND AFTER CONSIDERING THE REMAND REPORT AND THE SUBMISSIONS O F ASSESSEE, HE HAS PROCEEDED TO AFFIRM THE STAND OF THE ASSESSING OFFI CER. THE CIT(A) IN HER CONCLUDING DISCUSSION RECORDS AS UNDER:- SO EVEN IF THE 3 RD REVISED RETURN IS ACCEPTED WHICH IS PERMISSIBLE AS IT IS FILED WITHIN TIME, THE CLAIM MADE BY THE APPELLANT IN THE 3 RD REVISED RETURN CANNOT BE GRANTED BECAUSE IT IS NOT DONE PROPERTY WITHOUT THE SUBMISSION OF THE AUDITORS REPORT OR NOTE. IN THE INSTANT CASE, THE APPELLANT SHOULD HAVE SUBMITTED THE NOTE OF THE AUDITOR WITH THE 3 RD REVISED RETURN TO MAKE IT A COMPLETE AND PROPER REVISED RETURN. HENCE, THIS GR OUND OF APPEAL IS DISMISSED. 5. AGAINST THE AFORESAID DECISION OF THE CIT(A), AS SESSEE IS IN FURTHER APPEAL BEFORE US. BEFORE US, THE SOLITARY GRIEVANCE OF TH E ASSESSEE IS THAT THE CIT(A) 5 ITA NO.3745,4788&5100/MUM/2013 (ASSESSMENT YEAR 2004-05) HAS WRONGLY CONFIRMED THE STAND OF THE ASSESSING OF FICER OF NOT CONSIDERING THE THIRD REVISED RETURN FILED UNDER SECTION 139(5) OF THE ACT AND FURTHER THAT THE ERROR POINTED OUT BY THE ASSESSEE IN THE COMPUT ATION OF TOTAL INCOME IN THE SECOND REVISED RETURN ON ACCOUNT OF EXCESS ADD- BACK OF UNPAID PROVISION FOR LEAVE ENCASHMENT HAS BEEN REJECTED WITHOUT ANY JUSTIFIABLE REASON. 6. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE HAS PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW BY POINTING OUT THAT THE MISTAKE IN THE SECOND REVISED RETURN CLAIMED BY THE ASSESSEE WAS INADMISSIBLE IN VIEW OF THE CONTENTS OF THE AUDIT REPORT FILED U NDER SECTION 44AB OF THE ACT. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. SECTION 139(5) OF THE ACT PERMITS AN ASSESSEE TO FILE A REVISED RETUR N OF INCOME IF HE DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YE AR OR BEFORE THE COMPLETION OF ASSESSMENT , WHICHEVER IS EARLIER. IN THE PRESENT CASE, IT IS NOT THE CASE OF THE REVENUE THAT THE THIRD REVISED RETU RN FILED BY THE ASSESSEE ON 13/10/2005 WAS BEYOND THE PERIOD STIPULATED IN SECT ION 139(5) OF THE ACT. IN OUR CONSIDERED OPINION, IF THE ORIGINAL RETURN FIL ED BY THE ASSESSEE UNDER SECTION 139(1) OF THE ACT IS WITHIN THE PRESCRIBED PERIOD, AND THE REVISED RETURN HAS BEEN FILED WITHIN THE PERIOD PRESCRIBED IN SECTION 139(5) OF THE ACT, THEN THE ASSESSING OFFICER IS BOUND TO TAKE COGNIZA NCE OF THAT RETURN AS IF IT HAS BEEN ORIGINALLY FILED UNDER SECTION 139(1) OF THE A CT. NO DOUBT, REVISION OF A RETURN IS PRESCRIBED UNDER SECTION 139(5) OF THE ACT IN CASES WHERE ASSESSEE DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT IN THE ORIGINAL RETURN. SO HOWEVER, WHETHER OR NOT THERE IS AN OMIS SION OR A WRONG STATEMENT 6 ITA NO.3745,4788&5100/MUM/2013 (ASSESSMENT YEAR 2004-05) IN THE ORIGINAL RETURN CAN ONLY BE VERIFIED BY THE ASSESSING OFFICER AFTER HE TAKES INTO CONSIDERATION THE REVISED RETURN SO FILE D. IN THE PRESENT CASE, THE DISCUSSION BY THE ASSESSING OFFICER IN PARA-5 OF TH E ASSESSMENT ORDER AND THE COMPUTATION OF TOTAL INCOME IN PARA-6 REVEAL A SOME WHAT CONTRADICTORY APPROACH. WHILE IN PARA-6 OF THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS REFUSED TO TAKE COGNIZANCE OF THE THIRD REVISED RET URN FILED ON 13/10/2005 WHILE COMPUTING THE TOTAL INCOME WHEREAS IN PARA-5 HE HAS REJECTED THE PLEA OF THE ASSESSEE THAT THERE WAS ANY EXCESS ADD-BACK OF UNPAID PROVISION FOR LEAVE ENCASHMENT IN SECOND REVISED RETURN FILED O N 24/08/2005. OSTENSIBLY, THE APPROACH OF THE ASSESSING OFFICER IN PARA-5 TO EXAMINE THE EFFICACY OF THE ADJUSTMENT MADE TO THE TOTAL INCOME IN THE THIRD RE VISED RETURN CAN BE JUSTIFIED ONLY IF HE WAS TO TAKE COGNIZANCE OF THE SAME, WHICH CLEARLY HE DID NOT DO, AS REFLECTED IN PARA-6 OF THE ASSESSMENT ORDER. MOREOVER, THE APPROACH OF THE CIT(A) IS ALSO UNTENABLE BECAUSE SHE HAS PROCE EDED TO REJECT THE CLAIM OF THE ASSESSEE IN THE THIRD REVISED RETURN MERELY IN THE ABSENCE OF ANY NOTE OF THE AUDITOR WITH REGARD TO THE ERROR/OMISSION SOUGH T TO BE CORRECTED BY THE ASSESSEE IN THIRD REVISED RETURN. THE APPROACH OF THE CIT(A), IN OUR CONSIDERED OPINION, IS HYPER-TECHNICAL AND IN FACT IS DEHORS THE FACT-SITUATION, WHICH ASSESSEE HAS BEEN CONSISTENTLY TRYING TO PUT-FORTH REGARDING THE EXCESS ADD- BACK TO THE TOTAL INCOME MADE IN THE SECOND REVISED RETURN ON ACCOUNT OF UNPAID PROVISION FOR EARNED LEAVE. THE CLAIM OF TH E ASSESSEE HAS BEEN COUNTERED BY THE LOWER AUTHORITIES ON THE GROUND TH AT THE TAX AUDIT REPORT FURNISHED BY THE AUDITOR UNDER SECTION 44AB OF THE ACT REFLECTED THE UNPAID PROVISION FOR LEAVE ENCASHMENT AT RS.2,14,35,533/- AND NOT RS.18,65,982/- CLAIMED BY THE ASSESSEE. IN OUR CONSIDERED OPINION , THE CLAIM MADE BY THE ASSESSEE OUGHT TO HAVE BEEN EXAMINED ON MERIT AND N OT SHUT-OUT IN A 7 ITA NO.3745,4788&5100/MUM/2013 (ASSESSMENT YEAR 2004-05) SUPERFICIAL MANNER. OBVIOUSLY, THE CLAIM OF THE AS SESSEE IS BASED ON THE FACT THAT THERE IS AN ERROR IN THE REPORTING OF THE UNPA ID PROVISION FOR LEAVE ENCASHMENT IN THE AUDIT REPORT BUT THE CLAIM HAS BE EN REJECTED WITHOUT SUBJECTING IT TO ANY KIND OF VERIFICATION. UNDER T HESE CIRCUMSTANCES AND CONSIDERING THAT THE REVISED RETURN FILED ON 13/10/ 2005 WAS WITHIN THE PERIOD PRESCRIBED UNDER SECTION 139(5) OF THE ACT AND THA T THE ORIGINAL RETURN WAS FILED WITHIN THE PERIOD PRESCRIBED UNDER SECTION 13 9(1) OF THE ACT, THE ASSESSING OFFICER WAS BOUND TO TAKE COGNIZANCE OF T HE REVISED RETURN FILED ON 13/10/2005 AND CONSIDER THE PLEA OF THE ASSESSEE ON MERITS HAVING REGARD TO THE MATERIAL SOUGHT TO BE RELIED UPON BY THE ASSESS EE BEFORE HIM. ON THE FAILURE OF THE LOWER AUTHORITIES TO DO SO, WE DEEM IT FIT AND PROPER TO SET-ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OF FICER TO TAKE COGNIZANCE OF THE THIRD REVISED RETURN FILED ON 13/10/2005 AND CO NSIDER THE PLEA OF THE ASSESSEE RELATING TO THE UNPAID PROVISION OF LEAVE ENCASHMENT ON MERITS HAVING REGARD TO THE MATERIAL THAT THE ASSESSEE SEE K TO RELY BEFORE HIM. NEEDLESS TO MENTION, THE ASSESSING OFFICER SHALL AL LOW THE ASSESSEE A REASONABLY OPPORTUNITY OF BEING HEARD AND ONLY THER EAFTER SHALL PASS AN ORDER AFRESH ON THE AFORESAID LIMITED ASPECT, AS PER LAW. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED, AS ABOVE. 8. NOW WE MAY TAKE UP THE CROSS-APPEAL IN ITA NO.4 788/MUM/2013 AND ITA NO.5100/MUM/2013 WHICH ARE DIRECTED AGAINST AN ORDER PASSED BY CIT(A)-22, MUMBAI DATED 08/04/2013, WHICH IN TURN, ARISE OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3 ) R.W.S. 263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 24/12/20 06. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AS WELL AS REVENUE READ AS U NDER:- 8 ITA NO.3745,4788&5100/MUM/2013 (ASSESSMENT YEAR 2004-05) ASSESSEES GROUNDS OF APPEAL:- AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER (A .O) AS CONFIRMED BY COMMISSION OF INCOME TAX(APPEALS) [CIT(A)], YOUR AP PELLANT PREFERS AN APPEAL AGAINST THE SAME ON FOLLOWING GROUNDS, WHICH , IT IS PRAYED, MAY BE CONSIDERED WITHOUT PREJUDICE TO ONE ANOTHER. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT(A) ERRED IN CONFIRMING THE ADDITION UNDER SECTION. 145A OF RS.1 ,34,88,803/- MADE BY THE A.O. REVENUES GROUNDS OF APPEAL:- 1. 'ON THE FACT AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE AO TO COMPUTE INCOME AS PER 3RD REVISED RETURN WITHOUT CONSIDERING THE FACT THAT AO PROVED THAT 3R D REVISED RETURN WAS INVALID AS THE SIGNATURE OF THE DIRECTOR ON THE TAX AUDIT REPORT WAS IMPROPER' 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A)ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE WITHOUT CONSIDE RING THE PENDENCY OF ASSESSEE'S APPEAL IN REGARD TO ORDER U/S 263 FOR TH E A.Y UNDER CONSIDERATION'. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, VARY, OMIT OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF APPEAL. 9. FIRST, WE MAY TAKE UP THE APPEAL OF THE REVENUE, WHEREIN THE ONLY GRIEVANCE IS THAT THE CIT(A) HAS ERRED IN DIRECTIN G THAT THE THIRD REVISED RETURN FILED BY THE ASSESSEE ON 13/10/2005 BE TAKEN INTO C ONSIDERATION BY THE ASSESSING OFFICER WHILE COMPUTING THE TOTAL INCOME. THIS ASPECT OF THE CONTROVERSY HAS ALREADY BEEN ADJUDICATED BY US IN I TA NO.3745/MUM/2013, WHEREIN WE HAVE UPHELD THE PLEA OF THE ASSESSEE TH AT THE ASSESSING OFFICER OUGHT TO HAVE TAKEN COGNIZANCE OF THE THIRD REVISED RETURN FILED ON 13/10/2005. IN VIEW OF OUR DECISION IN THE APPEAL OF THE ASSESSEE IN ITA NO.3745/MUM/2013, THE STAND OF THE REVENUE IN THE P RESENT APPEAL IS LIABLE TO BE DISMISSED. WE HOLD SO. RESULTANTLY, THE APP EAL OF THE REVENUE IS DISMISSED. 9 ITA NO.3745,4788&5100/MUM/2013 (ASSESSMENT YEAR 2004-05) 10. IN THE APPEAL OF ASSESSEE, THE DISPUTE ARISES FROM AN ADDITION OF RS.1,34,88,803/- MADE BY THE ASSESSING OFFICER ON A CCOUNT OF ADJUSTMENT UNDER SECTION 145A OF THE ACT IN AN ASSESSMENT FINA LIZED AS A CONSEQUENCE OF AN ORDER PASSED BY THE CIT-10,MUMBAI UNDER SECTION 263 OF THE ACT DATED 16/3/2009. 11. AT THE TIME OF HEARING, LD. REPRESENTATIVE FOR THE ASSESSEE POINT OUT THAT THE TOTAL INCOME ADOPTED BY THE ASSESSING OFFICER I N THE IMPUGNED ORDER IN ORDER TO GIVE EFFECT TO THE ORDER OF THE CIT UNDER SECTION 263 IS RS.5,83,71,664/-, WHICH WAS COMPUTED IN THE ASSESSM ENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT DATED 14/12/2016. IT IS POINTED OUT THAT THE DETERMINATION OF TOTAL INCOME IN THE ORDER PASSED U NDER SECTION 143(3) OF THE ACT DATED 14/12/2006 WAS AFTER IGNORING THE REVISED RETURN FILED ON 13/10/2005. THE SAID DISPUTE HAS BEEN CONSIDERED B Y US IN EARLIER PARAS WHILE DEALING WITH THE APPEAL IN ITA NO.3745/MUM/2013 THE LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IF ASSESSEE WERE TO SUCCEED IN THE EARLIER APPEAL, THE DISPUTE IN THE PRESENT APPEAL WOULD BE RENDERED INFRUCTUOUS AS THE COMPUTABLE TOTAL INCOME WOULD STAND REDUCED AND ASSESSEE WOULD HAVE NO GRIEVANCE LEFT. WE HAVE UPHELD THE PLEA OF TH E ASSESSEE IN PRINCIPLE IN THE APPEAL IN ITA NO.3745/MUM/2013 AND ALSO IN THE CRO SS-APPEAL BY THE REVENUE IN ITA NO.5100/MUM/2013 THAT THE ASSESSING OFFICER IS TO TAKE COGNISANCE OF THE THIRD REVISED RETURN FILED ON 13/10/2015. IN T HIS APPEAL, THE MATTER RELATING TO DETERMINATION OF TOTAL INCOME IS BEING REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY, THE ASSESSING OFFI CER WOULD CONSIDER AFRESH THE ISSUE RELATING TO THE ADDITION UNDER SECTION 145A O F THE ACT OF RS.1,34,88,803/- 10 ITA NO.3745,4788&5100/MUM/2013 (ASSESSMENT YEAR 2004-05) IN THE ENSURING PROCEEDINGS AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE, AS PER LAW. ACCORDINGLY, FOR STATISTICAL PURPOS ES THE APPEAL OF THE ASSESSEE IN ITA NO.4788/MUM/2013 IS ALSO ALLOWED, AS ABOVE. 12. IN THE RESULT, WHEREAS THE APPEALS OF THE ASSES SEE ARE ALLOWED, THAT OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/2016 SD/- SD/- (AMARJIT SINGH) (G.S.PANNU) JUDICIAL MEMBER ACCOCUNTANT MEMBER MUMBAI, DATED 25/11/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI