M/S. SBI CAPITAL MARKETS LTD., V. THE DY CIT RG-4(2),

ITA 3789/MUM/2004

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3776 (ITAT-MUMBAI)
• Duration Of Justice: 11 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 15-10-2015
• Assessment Year: 1994-1995
• Appeal Filed On: 13-05-2004
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILLIP
• Keywords: Capital asset; Depreciation; Wrong claim; Difference of opinion; Assessment record; Revised return; Change of opinion; Reassessment proceedings
• Section: 143(3); 14A; 80G; 147; 148; 154; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI , , BEFORE SHRI SANJAY ARORA , A M AND SHRI AMIT SHUKLA , J M ./ I.T.A. NO. 3789/MUM/200 4 ( / ASSESSMENT YEAR: 1994 - 95 ) SBI CAPITAL MARKETS LTD. 202, MAKER TOWER E, CUFFE PARADE, MUMBAI - 400 005 / VS. DY. CIT, RANGE - 4(2), MUMBAI ./ ./ PAN/GIR NO. AAA CS 7914 E ( / APPE LLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI NITESH JOSHI / RESPONDENT BY : SHRI NEIL PHILLIP / DATE OF HEARING : 26.11.2015 / DATE OF PRONOUNCEMENT : 24 .02.2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPE ALS) , MUMBAI (CIT(A) FOR SHORT) DATED 11.2.2004 , DISMISSING THE A SSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143 (3) R/W S. 148 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 1994 - 95 VIDE ORDER DATED 31.3.2003. 2 ITA NO. 37 89/MUM/20 0 4 (A.Y. 1994 - 95) SBI CAPITAL MARKETS LTD. VS. DY. CIT 2. PER GROUND 1, THE ASSESSEE CHALLENGES THE REOPENING OF ITS ASSESSMENT, FINALIZED U/S. 143(3) OF THE ACT ON 14/3/1997, VIDE NOTICE U/S. 148 DATED 29/5/2001, I.E., RAISES A JURISDICTIONAL ISSUE. THE REASSESSMENT BEING INITIATED BEYOND FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, THE LD. AUTHORIZED REPRESENTATIVE (AR) WOULD, WITH REFERENCE TO EACH OF THE FOUR RE ASONS RECORDED FOR THE ISSUE OF NOTICE U/S. 148 (PB PGS. 20 - 21), ARGUE THAT THERE HAS BEEN FULL AND TRUE DISCLOSURE OF ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT, WITH THERE BEING ALSO A CONSIDERATION OF THE ASSESSEES CLAIMS, SO THAT THE INITIATION IS BA D IN LAW. THE FOURTH REASON IS TOWARD DISALLOWANCE U/S. 14A (IN VIEW OF THE ASSESSEE EARNING TAX - FREE INCOME AT RS. 786.51 LACS), WHICH, EVEN AS NOTED IN THE (RE)ASSESSMENT ORDER ITSELF, COULD NOT FORM A BASIS FOR REASSESSMENT IN VIEW OF PROVISO TO S. 14A ITSELF. THIS LEAVES US WITH THREE REASONS, AS UNDER: (I) DEDUCTION U/S. 35(1)(II) IS CLAIMED @ 100% AT RS. 2 LACS QUA A DONATION FOR LIKE AMOUNT, WHILE THE SAME IS DEDUCTIBLE U/S. 80 - G, I.E., @ 50% ONLY, SO THAT THERE HAS BEEN AN EXCESS ALLOWANCE BY RS. 1 L AC. (II) THE ASSESSEE HAD CLAIMED 100% DEPRECIATION ON THE FOLLOWING ASSETS; THE PRESCRIBED RATE PER APPENDIX I TO THE ACT BEING 40%, SO THAT THERE HAS BEEN AN EXCESS ALLOWANCE FOR THE BALANCE AMOUNT OF RS. 6 , 05,512/ - : BATTERY OPERATED FORKLIFT - RS. 7,2 2,058/ - FORKLIFT AND BATTERY CHARGER - RS. 2,87,129/ - RS. 10,09,187/ - (III) THE ASSESSEE HAD CLAIMED SET OFF OF LONG - TERM CAPITAL LOSS (RS. 32,87,128/) AGAINST SHORT - TERM CAPITAL GAIN, EVEN AS IT HAS INCOME ASSESSABLE AS LONG - TERM C APITAL GAIN AT RS. 64,96,899/ - FOR THE YEAR, RESULTING IN SHORT ASSESSMENT OF SHORT - TERM CAPITAL GAIN. THE ASSESSEES CONTENTION IS THAT THERE HAS BEEN IN FACT CONSIDERATION OF THE ASSESSEES CLAIMS IN THE ORIGINAL ASSESSMENT PROCEEDINGS, I.E., IT IS A CA SE OF CHANGE OF OPINION, PRECLUDING REASSESSMENT ON THOSE GROUNDS. TOWARD THIS, THE LD. AR WOULD 3 ITA NO. 37 89/MUM/20 0 4 (A.Y. 1994 - 95) SBI CAPITAL MARKETS LTD. VS. DY. CIT TAKE US THROUGH THE ASSESSEES LETTER DATED 20/2/1997 TO THE ASSESSING OFFICER (A.O.) (PB PGS. 26 - 27), WHICH, VIDE SERIAL NOS. 8, 9 & 13 THEREOF, CONTAINS THE FOLLOWING: A) RECEIPT OF DONATION MADE DURING THE YEAR AND CLAIMED AS DEDUCTION ANN. VIII, B) SCHEDULE OF FIXED ASSETS CAPITALIZED DURING THE YEAR AND QUALIFYING FOR 100% DEPRECIATION ANN. IX, C) SUBMISSIONS REGARDING SETTING OFF THE LONG TERM CAPITA L LOSS AGAINST THE SHORT TERM CAPITAL GAINS ANN. XV THE SET OFF OF L ONG - T ERM C APITAL L OSS AGAINST S HORT - T ERM C APITAL G AIN WAS EVEN SUBSEQUENTLY EXPLAINED BY THE ASSESSEE VIDE IT S LETTER D A T ED 10.3.1997 (PB PG. 36) , ANNEXING THE SAME AS ANN - V (PB PG. 3 7) THEREOF. THE ALLOWANCE OF THIS CLAIM WOULD THUS AMOUNT TO A CHANGE OF OPINION. AS REGARDS DISCLOSURE, HE WOULD TAKE U S TO THE ASSESSEES CLAIM, PREFERRED PER ITS ORIGINAL RETURN (PB PGS. 1 - 2), WHICH WAS REVISED BY CLAIMING DEDUCTION ON DONATION U/S . 35 (1)(II) (AS AGAINST U/S . 80G EARLIER) AS WELL AS ADJUSTMENT OF LONG - T ERM C APITAL L OSS AGAINST S HORT - T ERM C APITAL G AINS DESPITE SUFFICIENT INCOME ASSESSABLE AS L ONG - T ERM C APITAL G AINS (PB PGS.3 - 5). QUA THE CLAIM FOR DEPRECIATION, THE SAME WAS ON FORKLIFT, WHICH, AS APPARENT FROM THE REASONS RECORDED, CLEARLY EXHIBIT S THE MACHINERY TO BE AN ELECTRICALLY OPERATED VEHICLE, ELIGIBLE FOR 100% DEPRECIATION UNDER E NTRY III(3)(XIII)(O) OF APPENDIX - I OF THE INCOME TAX RULES, 1962. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. 3. 1 WE SHALL CONSIDER THE ASPECT OF TRUE AND FULL DISCLOSURE FIRST IN - AS - MUCH AS A FINDING AS TO IT BEING NOT SO QUA ANY ONE (OR MORE) OF THE THREE GROUNDS WOULD VALIDATE INITIATION OF REASSESSMENT PROCEEDINGS. THE TRUE AN D FULL DISCLOSURE MAY NOT BE LIMITED TO THE ASSESSEES RETURN; THE SAME BEING SUBJECT TO VERIFICATION, SO THAT THE ASSESSEE COULD FOR THE PURPOSE RELY ON ANY MATERIAL FURNISHED EVEN SUBSEQUENTLY, FORMING PART OF THE ASSESSMENT RECORD. THIS IS SO AS THE REA SON TO BELIEVE IS TO BE FORMED ON THE BASIS OF MATERIAL ON RECORD. WITH REGARD TO THE VEHICLE (FORKLIFT), THE SAME IS STATED TO 4 ITA NO. 37 89/MUM/20 0 4 (A.Y. 1994 - 95) SBI CAPITAL MARKETS LTD. VS. DY. CIT BE BATTERY OPERATED, DEPRECIATION ON WHICH HAS BEEN CLARIFIED TO BE WITH REFERENCE TO A PARTICULAR ENTRY, READING AS (O) ELE CTRICALLY OPERATED VEHICLES INCLUDING BATTERY POWERED OR FUEL - CELL POWERED VEHICLES. THERE IS, ACCORDINGLY, NO BASIS TO STATE OF THIS DISCLOSURE BEING NOT TRUE AND FULL QUA THIS CLAIM . THE ASSESSEES REVISED RETURN (FILED ON 17/8/1995) CLEARLY EXHIBITS A LL THE FACTS, I.E., LONG - TERM CAPITAL LOSS; SHORT - TERM CAPITAL GAIN; AND LONG - TERM CAPITAL GAIN (AT CORRECT AMOUNTS), EVEN AS THE ORIGINAL RETURN DID NOT. WE SAY SO AS WHILE THE ASSESSEE STATES THAT THE SHORT - TERM AND LONG - TERM CAPITAL ASSETS CONSTITUTE TH E SAME SOURCE OF INCOME, THE REVENUE STATES OF THE TWO BEING DIFFERENT, THOUGH FALLING UNDER THE SAME HEAD OF INCOME, I.E., CAPITAL GAINS. THE MANNER OF CLAIM PER THE REVISED RETURN CLEARLY BRINGS OUT BOTH, THE RELEVANT SOURCES AND THE HEADS OF INCOME A GAINST WHICH THE SET OFF COULD BE EXERCISED, BRINGING OUT THE CONSCIOUS DECISION BY THE ASSESSEE IN PREFERRING ADJUSTMENT OF LONG - TERM CAPITAL LOSS AGAINST SHORT - TERM CAPITAL GAIN, AS AGAINST LONG - TERM CAPITAL GAINS. THERE IS NO QUESTION OF DISCLOSURE OF F ACTS IN RELATION TO THIS CLAIM BEING NOT FULL AND TRUE. AS REGARDS THE THIRD GROUND, THE RELEVANT ENTRY IN THE REVISED RETURN (PER WHICH THE DEDUCTION U/S. 35(1)(II) STANDS CLAIMED) CLEARLY STATES OF THE DONATION BEING GIVEN FOR MEDICAL RESEARCH, ELIGIBLE FOR DEDUCTION U/S. 35(1)(II) (AS AGAINST U/S. 80G EARLIER), CLAIM UNDER WHICH STANDS CORRESPONDINGLY REVISED (FOR THE SAME REASON) (PB PGS.3 - 4). THE QUESTION IS WHETHER THE DISCLOSURE IS FULL AND TRUE. IF THE IMPUGNED DONATION IS FOR MEDICAL RESEARCH, WH ICH STANDS NOTIFIED U/S. 35(1)(II), IT SURELY IS. THE ONLY MATERIAL FURNISHED IN THE ASSESSMENT PROCEEDINGS IS RECEIPT OF THE DONATION DATED 04.2.1994 (PB PG. 29), WHICH CLEARLY CERTIFIES IT TO BE ELIGIBLE FOR DEDUCTION U/S. 80G (SPECIFYING THE RELEVANT OR DER NO. AS WELL AS ITS VALIDITY PERIOD). THERE IS NO REFERENCE TO EITHER IT (DONATION) BEING FOR MEDICAL RESEARCH OR AS ELIGIBLE FOR DEDUCTION U/S. 35(1)(II). EVEN IN THE OBJECTIONS (TO THE REASONS RECORDED) RAISED, VIDE ITS LETTER DATED 6.2.2003 (PB 5 ITA NO. 37 89/MUM/20 0 4 (A.Y. 1994 - 95) SBI CAPITAL MARKETS LTD. VS. DY. CIT PGS . 22 - 25), THE ASSESSEE - COMPANY COULD NOT EXHIBIT AS TO HOW THE DISCLOSURE WAS TRUE IN MATERIAL RESPECTS, I.E., OF THE DONATION BEING TOWARD MEDICAL RESEARCH AND, FURTHER, ELIGIBLE FOR DEDUCTION U/S. 35(1)(II), AND FOR WHICH WE HAVE PERUSED THE LETTER DATED 20.2.1997 TO THE AO IN THE ASSESSMENT PROCEEDINGS (PB PGS. 26 - 27), REFERRED TO THEREIN, VIDE WHICH THE RECEIPT U/S. 80G DATED 4.2.1994 (PB PG. 29) WAS FURNISHED. THE TRUTH OF A DISCLOSURE CAN ONLY BE WITH REFERENCE TO THE FACTS BORNE OUT OR EVIDENCED BY THE MATERIAL ON RECORD. THE DISCLOSURE PER THE RETURN IS, IN THE FACTS OF THE CASE, RATHER INCONSISTENT WITH THE MATERIAL ON RECORD. THE HONBLE COURT IN INDIAN HUME PIPE CO. LTD. V. ACIT [2012] 348 ITR 439 (BOM), RELIED UPON BY THE REVENUE, FOLLOWING CIT V. BHANJI LAVJI [1971] 79 ITR 582 (SC), HELD AS UNDER: FULL AND TRUE DISCLOSURES MUST MEAN WHAT THE STATUTE SAYS. THESE DISCLOSURES CANNOT BE GARBLED OR HIDDEN IN THE CREVICES OF THE DOCUMENTARY MATERIAL WHICH HAS BEEN FILED BY THE ASSESSEE WITH THE ASS ESSING OFFICER. THE ASSESSEE MUST ACT WITH CANDOUR AND THE DISCLOSURE MUST BE FULL AND TRUE. A FULL DISCLOSURE IS A DISCLOSURE OF ALL MATERIAL FACTS WHICH DOES NOT CONTAIN ANY HIDDEN MATERIAL OR SUPPRESSION OF FACT. A TRUE DISCLOSURE IS A DISCLOSURE WHI CH IS TRUTHFUL IN ALL RESPECTS. JUST AS THE POWER OF THE REVENUE TO REOPEN AN ASSESSMENT BEYOND A PERIOD OF FOUR YEARS IS RESTRICTED BY THE CONDITIONS PRECEDENT SPELT OUT IN THE PROVISO TO SECTION 147, EQUALLY AN ASSESSEE WHO SEEKS THE BENEFIT OF THE PROV ISO TO SECTION 147 MUST MAKE A FULL AND TRUE DISCLOSURE OF ALL PRIMARY FACTS. THIS, THUS, IS A CASE OF A PATENTLY WRONG (UNTRUE) DISCLOSURE OF FACTS AND, IN ANY CASE, NOT A FULL AND TRUE DISCLOSURE. 3.2 THERE IS, FURTHER, NO WHISPER OF DONATION IN THE B ODY OF THE ASSESSMENT ORDER (DTD. 14.3.1997), EXHIBITING ANY CONSIDERATION OF THE SAID CLAIM AND, CONSEQUENTLY, OF FORMATION OF OPINION BY THE AO IN ITS RESPECT. HOW COULD, ONE WONDERS, A RECEIPT U/S. 80G EVIDENCE THE ASSESSEEES CLAIM U/S. 35(1)(II), WHI CH RATHER EXHIBITS THE UNTRUTHFULNESS OF THE DISCLOSURE, AND OF IT BEING A WRONG CLAIM. THIS IS, IN FACT, THE FOREMOST QUERY WHICH SHOULD HAVE ARISEN, I.E., UPON OBSERVING THE RECEIPT TO BE U/S. 6 ITA NO. 37 89/MUM/20 0 4 (A.Y. 1994 - 95) SBI CAPITAL MARKETS LTD. VS. DY. CIT 80G AS AGAINST THE CLAIM PREFERRED U/S. 35(1)(II). WE OBSERVE NO QUERY BY THE AO IN THIS RESPECT, AND NEITHER HAS ANY BEEN POINTED OUT TO US. THE AO HAS CLEARLY OMITTED TO EXAMINE THE ASSESSEES CLAIM - A QUESTION OR A MATTER OF FACT. THE HONBLE COURT IN EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD. V. ADDL . C IT [2013] 350 ITR 651 (BOM) , RELIED UPON BY THE REVENUE, HAS IN THIS REGARD HELD AS UNDER: TO HOLD THAT THE ASSESSING OFFICER MUST BE DEEMED TO HAVE ACCEPTED WHAT HE HAS PLAINLY OVERLOOKED OR IGNORED IN THE ASSESSMENT ORDER WOULD BE TO STRETCH THE INTERP RETATION OF SECTION 147 TO A POINT WHERE THE PROVISION WOULD CEASE TO HAVE MEANING AND CONTENT. SUCH AN EXERCISE OF EXCISION BY JUDICIAL INTERPRETATION IS IMPERMISSIBLE. EVEN THE LETTER DATED 4.2.1994 BY THE DONOR (RAMAKRISHNA SEVA PRATISHTHAN) ACCOMPAN YING THE RECEIPT U/S. 80G (PB PG. 28), WHICH APPEARS TO HAVE BEEN FURNISHED ALONG - WITH THE LETTER DTD. 6.2.2003 (SUPRA), CLEARLY STATES THE DONATION TO BE TOWARDS HOSPITAL, ELIGIBLE FOR DEDUCTION U/S. 80G. 3.3 THE REVENUES ACTION IN INITIATING REASSESSME NT PROCEEDINGS SHALL THUS SURVIVE ON THE BASIS OF THIS REASON, I.E., QUA DONATION, AND THE ASSESSEE FAILS ON ITS GROUND 1. 4. ON MERITS, GROUND 2 IMPUGNS THE DISALLOWANCE OF CLAIM U/S. 35(1)(II). THE MATERIAL FURNISHED IN THE INSTANT ASSESSMENT PROCEEDI NGS FURTHER CONFIRMS THE ASSESSEES CLAIM AS FACTUALLY INCORRECT. WE HAVE ALREADY NOTED THE LETTER DATED 4.2.1994 SUPRA, PER WHICH THE RECEIPT WAS COMMUNICATED TO THE ASSESSEE, CONFIRMING IT TO BE FOR A HOSPITAL FOR THE RECEPTION AND MEDICAL TREATMENT OF P OOR PATIENTS, ELIGIBLE FOR DEDUCTION U/S. 80G. THE ASSESSEE HAS BEFORE US ALSO RELIED ON A SET OF PAPERS TITLED AN APPEAL (PB PGS. 30 - 34), WHICH LISTS THE VARIOUS PROGRAMS BEING CARRIED OUT BY THE MISSION. THE SAME IS NEITHER QUA THE ASSESSEE OR THE DON ATION BY IT. THE REFERENCE THEREIN TO THE RESEARCH CARRIED OUT BY THE RESEARCH INSTITUTION, DONATIONS TO WHICH ARE ENTITLED TO DEDUCTION U/S. 35(1)(II) (@ 100%), WOULD THEREFORE BE OF NO CONSEQUENCE. IF ANYTHING, IT ONLY ESTABLISHES THE ASSESSEES CLAIM T HERE - UNDER AS DE HORS ANY 7 ITA NO. 37 89/MUM/20 0 4 (A.Y. 1994 - 95) SBI CAPITAL MARKETS LTD. VS. DY. CIT MATERIAL AND/OR WITHOUT BASIS. THE LD. CIT(A) DISCUSSES THIS ISSUE VIDE PARAS 5 TO 8 OF HIS ORDER, RENDERING HIS FINDINGS AT PARA 5, WHICH WE FIND TO BE IN CONFORMITY WITH THE SAID MATERIAL, I.E., THE LETTER DATED 4/2/1994 AND TH E BROCHURE TITLED AN APPEAL ISSUED BY THE DONOR. THE CONTRIBUTION (DONATION) TO ITS RESEARCH INSTITUTION IS IN FACT TO BE MADE TO A DIFFERENT ACCOUNT, WHICH IS ENTITLED TO DEDUCTION U/S. 35(1)(II). WE, IN FACT, ALSO DO NOT OBSERVE ANY EXPLANATION FURNIS HED BY THE ASSESSEE IN THIS REGARD AT ANY STAGE OF THE INSTANT PROCEEDINGS. THE ASSESSEES CLAIM STANDS RIGHTLY DENIED. WE UPHOLD THE IMPUGNED DISALLOWANCE, AND THE ASSESSEE FAILS ON ITS GROUND 2. 5. GROUND 3 : THE ASSESSEE HAS BEEN DENIED SET OFF OF LONG - TERM CAPITAL LOSS AGAINST SHORT - TERM CAPITAL GAIN, FOLLOWING THE DECISION IN RAVINDRAKUMAR K. MARIWALA V. JCIT , REPORTED AT [2003] 86 ITD 35 (MUM) (PG. 9 OF THE IMPUGNED ORDER). HOWEVER, BEFORE WE MAY CONSIDER THE ISSUE ON MERITS, WE NOTE THAT THE AO HAS ALREADY CONSIDERED THIS ASPECT WHILE FRAMING THE IMPUGNED ASSESSMENT. THE CLAIM IS LEGAL, WITH ALL THE MATERIAL FACTS ON RECORD. THOUGH, TRUE, THERE IS NO DISCUSSION IN THE MATTER IN THE BODY OF THE ASSESSMENT ORDER, THE SUBMISSIONS BY THE ASSESSEE BEFOR E THE ASSESSING AUTHORITY VIDE ITS LETTERS DATED 20.2.1997 AND 10.3.1997, WHICH WOULD WITHOUT DOUBT ONLY BE IN RESPONSE TO HIS QUERIES IN THE MATTER, CLEARLY SHOW OF THE SAME HAVING BEEN CONSIDERED. MERELY BECAUSE HE CHOOSES NOT TO DISCUSS THE SAME IN THE ASSESSMENT ORDER WOULD NOT IMPLY THAT THE SAME HAS NOT BEEN CONSIDERED. RATHER, A NON - MENTION WOULD INDICATE HIS SATISFACTION THEREWITH. AT THIS STAGE, WE MAY CONTRAST THIS WITH THE ASSESSEES CLAIM U/S. 35(1)(II), WHICH ELICITED NO QUERY BY THE AO DESPIT E THE RECEIPT FURNISHED BY THE ASSESSEE BEING U/S. 80G, I.E., INCONSISTENT WITH THE CLAIM MADE. FURTHER, THE LAW AS IT STOOD AT THE RELEVANT TIME, DID NOT CARVE OUT ANY SPECIFIC EXCLUSION FOR THE ADJUSTMENT OF LOSS ON A CAPITAL ASSET, OTHER THAN A SHORT - T ERM ASSET, WHERE THERE IS A CAPITAL GAIN ON SUCH OTHER CAPITAL ASSET, I.E., AS CAST BY SEC. 70(3) OF THE ACT AS IT NOW STANDS (I.E., W.E.F. 1.4.2003). THE ASSESSEES VIEW, WHICH FOUND ACCEPTANCE BY THE AO, WAS THUS A PLAUSIBLE VIEW. IN FACT, EVEN IF REGA RDED AS 8 ITA NO. 37 89/MUM/20 0 4 (A.Y. 1994 - 95) SBI CAPITAL MARKETS LTD. VS. DY. CIT MISTAKEN, THE SAME CANNOT BE DISTURBED BEYOND FOUR YEARS, AS CLARIFIED BY THE APEX COURT IN DY. CIT V. SIMPLEX CONCRETE PILES PVT. LTD . [2013] 358 ITR 129 (SC). R EASSESSMENT DOES NOT ENTITLE THE AO TO REVIEW HIS ORDER. ACCORDINGLY, NO ADJUSTMENT TO THE RETURNED INCOME ON THIS SCORE COULD BE MADE. CONSEQUENTLY, THE ASSESSEE SUCCEEDS ON ITS GROUND 3. 6. VIDE GROUND 4, THE ASSESSEE STATES OF THE LD. CIT(A) AS HAVING ERRED IN NOT DECIDING ITSS GROUNDS 5 TO 8 RAISED BEFORE HIM. THOUGH NO SUBMISSIONS WE RE MADE BEFORE US IN THIS REGARD, THERE IS NO EXPRESS CONCESSION FOR NOT PRESSING THE SAME. WE ACCORDINGLY DEAL WITH THE SAME ON MERITS. IN - AS - MUCH AS THE SAID GROUNDS WERE RAISED BEFORE HIM, WHICH WE HAVE FOUND AS A FACT (FROM FORM - 35), THE LD. CIT(A) OUG HT TO HAVE DISPOSED THE SAME. AT THE SAME TIME, IT MAY WELL BE THAT, AS BEFORE US, THE ASSESSEE DID NOT MAKE ANY SUBMISSIONS QUA THE SAME, WHICH COULD ALSO BE FOR THE REASON THAT THE MATTER, AS IT APPEARS, HAD ALSO BEEN SIMULTANEOUSLY TAKEN UP U/S. 154, W ITH THE LD. CIT(A) DIRECTING THE AO TO CONSIDER THE ASSESSEES CLAIM (I.E., IN ACCORDANCE WITH LAW) VIDE HIS ORDER U/S. 154 DTD. 26.8.2003 (PB PG. 49). BE THAT AS IT MAY, WE CONSIDER THE STATED GROUNDS AS OUTSTANDING BEFORE HIM AND, ACCORDINGLY, DIRECT FO R THEIR DISPOSAL, AFTER AFFORDING THE ASSESSEE A REASONABLE OPPORTUNITY TO STATE ITS CASE BEFORE HIM. WE DECIDE ACCORDINGLY. 7. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUAR Y 24 , 201 6 SD/ - SD/ - ( AMIT SHUKLA ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 24 . 02 .201 6 9 ITA NO. 37 89/MUM/20 0 4 (A.Y. 1994 - 95) SBI CAPITAL MARKETS LTD. VS. DY. CIT . . ./ ROSHANI , SR. PS , SRINIVASAN, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI