Shri Bindiya Ahuja, New Delhi V. ITO, New Delhi

ITA 3895/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7120 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 08-11-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 04-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KR SHARMA
• Keywords: Gift; Business income; Question of law; Tangible material; Accommodation entries; Reason to believe; Reassessment proceedings
• Section: 143(3); 147; 68; 148; 12; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC-3 : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NOS. 3895/DEL/2016 ASSESSMENT YEAR: 2003-04 MS. BINDIYA AHUJA, VS. ITO, WARD 19(2), G-78, ASHOK VIHAR, NEW DELHI PHASE-I, DELHI (PAN: AAQPA4356F) (APPELLANT) (RESPONDENT) ITA NOS. 3868/DEL/2016 ASSESSMENT YEAR: 2003-04 SH. VIPIN AHUJA, VS. ITO, WARD 19(2), G-78, ASHOK VIHAR, NEW DELHI PHASE-I, DELHI (PAN: ADQPA7352N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SALIL AGGARWAL, ADV. & SH. SHAILESH GUPTA, CA REVENUE BY : SH. ANIL KR. SHARMA, SR. DR ORDER PER H.S. SIDHU, J.M. THE SEPARATE ASSESSEES HAVE FILED THEIR RESPECTIVE APPEALS AGAINST THE SEPARATE ORDERS BOTH DATED 12.4.2016 OF THE LD. CIT(A)- 12, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2003-0 4. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON AND IDE NTICAL, HENCE, THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPO SED OF BY THIS 2 CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE, BY DEALING WITH ITA NO. 3895/DEL/2016 (AY 2003-04). 2. THE GROUNDS RAISED IN ITA NO. 3895/DEL/2016 (AY 2003-04) READ AS UNDER:- 1. THAT THE ORDER PASSED BY THE HON'BLE CIT(A) IS BAD IN LAW, WRONG ON FACTS AND AGAINST THE PRINCIPLES OF N ATURAL JUSTICE. 2(A) THAT THE PROCEEDINGS INITIATED UNDER SECTION 1 47 OF THE INCOME TAX AC 1961 ARE VOID-AB-INITIO AND THE R E- ASSESSMENT IS BAD IN LAW. THE ASSESSMENT U/S 147 HA S BEEN COMPLETED ON WHOLLY ERRONEOUS INTERPRETATION O F SECTION 147 OF THE INCOME TAX ACT. THE CONDITIONS PRECEDENT IMPERATIVE FOR THE ISSUANCE OF A NOTICE U /S 147 OF THE INCOME TAX ACT WERE WHOLLY CONSPICUOUS BY TH EIR ABSENCE IN THE FACTS AND CIRCUMSTANCES OF THIS CASE AND AS A CONSEQUENCE THEREOF, ALL IMMINENT PROCEEDINGS AND THE ASSESSMENT ORDER ARE WHOLLY ILLEGAL, WITHOUT TH E AUTHORITY OF LAW, NULL AND VOID. (B) THE HON'BLE CIT(A) HAS FAILED TO CONSIDER THE F ACT THAT THE LEARNED ASSESSING OFFICER HAS EXERCISED HIS POW ERS UNDER SECTION 147 OF THE INCOME TAX ACT ON MERE SURMISES AND SUSPICIONS AND ON WHOLLY UNREASONABLE AND SPECULATIVE PREMISES AND HE HAD NO REASON TO BELIEV E THAT INCOME CHARGEABLE TO TAX FOR THE AFORESAID REL EVANT YEAR HAS ESCAPED ASSESSMENT EITHER BY REASON OF THE APPELLANT COMPANY FAILING TO MAKE A RETURN U/S 139 OF THE INCOME TAX ACT OR BY ITS FAILURE BY OMISSION OR FAILURE TO DISCLOSE, FULLY AND TRULY, ALL THE MATERIAL FACT S NECESSARY FOR SUCH AN ASSESSMENT. 3 (C) THE HON'BLE CIT(A) HAS FAILED TO APPRECIATE TH AT THE NOTICE U/S 148 OF THE INCOME TAX ACT WAS NOT SERVED UPON ON THE APPELLANT WITHIN THE STIPULATED TIME LI MIT AND THEREFORE THE ASSESSMENT IS INVALID, NULL AND VOID- AB- INITIO. 3(A) THE HON'BLE CIT(A) HAS ERRED BOTH IN LAW AND I N FACTS IN CONFIRMING THE ADDITION OF RS. 4 LACS MADE BY THE LD. AO U/S 68 OF THE INCOME TAX ACT IN RESPECT OF G IFT RECEIVED BY HIM FROM SMT. RENU MAINI 3(B) THE HON'B LE CIT(A) HAS CONFIRMED THE ADDITION OF RS.4 LACS WITH OUT APPRECIATING THE FACT THAT THE APPELLANT DURING THE COURSE OF ASSESSMENT AND APPELLATE PROCEEDINGS HAD FILED C OPY OF DECLARATION OF GIFT BY THE DONOR ALONGWITH HER A FFIDAVIT, BANK STATEMENT OF THE DONOR AND THE ACKNOWLEDGMENT OF INCOME TAX RETURN OF THE DONOR AND THEREFORE THE ID ENTITY OF THE DONOR, GENUINENESS OF THE TRANSACTION AND TH E CREDITWORTHINESS OF THE DONOR STANDS PROVED AND THEREFORE THE QUESTION OF MAKING AN ADDITION IN RES PECT OF GIFT RECEIVED DOES NOT ARISE AT ALL. 4. THE HON'BLE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.1000/- BEING ALLEGED PAYMENT OF COMMISSION @ 0.25% ON THE GIFT RECEIVED WITHOUT HAV ING ANY EVIDENCE IN THIS REGARD AND THE ADDITION HAS BE EN MADE MERELY ON CONJECTURES AND SURMISES. 5. THE HON'BLE CIT(A) WHILE COMPUTING THE ADDITION OF RS. 4 LACS U/S 68 OF THE INCOME TAX ACT HAS FAILED TO APPRECIATE THE FACT THAT AS THE APPELLANT IS NOT HA VING ANY BUSINESS INCOME DURING THE YEAR THEREFORE HE WA S NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNTS AND THER EFORE THE PROVISION OF SECTION 68 ARE NOT APPLICABLE TO T HE APPELLANT AND, THEREFORE THE ADDITION HAS BEEN WRON GLY MADE. 4 THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, MO DIFY OR FOREGO ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. THE GROUNDS RAISED IN ITA NO 3868/DEL/2016 (AY 2 003-04) READ AS UNDER:- 1. THAT THE ORDER PASSED BY THE HON'BLE CIT(A) IS BAD IN LAW, WRONG ON FACTS AND AGAINST THE PRINCIPLES OF N ATURAL JUSTICE. 2(A) THAT THE PROCEEDINGS INITIATED UNDER SECTION 1 47 OF THE INCOME TAX AC 1961 ARE VOID-AB-INITIO AND THE R E- ASSESSMENT IS BAD IN LAW. THE ASSESSMENT U/S 147 HA S BEEN COMPLETED ON WHOLLY ERRONEOUS INTERPRETATION O F SECTION 147 OF THE INCOME TAX ACT. THE CONDITIONS PRECEDENT IMPERATIVE FOR THE ISSUANCE OF A NOTICE U /S 147 OF THE INCOME TAX ACT WERE WHOLLY CONSPICUOUS BY TH EIR ABSENCE IN THE FACTS AND CIRCUMSTANCES OF THIS CASE AND AS A CONSEQUENCE THEREOF, ALL IMMINENT PROCEEDINGS AND THE ASSESSMENT ORDER ARE WHOLLY ILLEGAL, WITHOUT TH E AUTHORITY OF LAW, NULL AND VOID. (B) THE HON'BLE CIT(A) HAS FAILED TO CONSIDER THE F ACT THAT THE LEARNED ASSESSING OFFICER HAS EXERCISED HIS POW ERS UNDER SECTION 147 OF THE INCOME TAX ACT ON MERE SURMISES AND SUSPICIONS AND ON WHOLLY UNREASONABLE AND SPECULATIVE PREMISES AND HE HAD NO REASON TO BELIEV E THAT INCOME CHARGEABLE TO TAX FOR THE AFORESAID REL EVANT YEAR HAS ESCAPED ASSESSMENT EITHER BY REASON OF THE APPELLANT COMPANY FAILING TO MAKE A RETURN U/S 139 OF THE INCOME TAX ACT OR BY ITS FAILURE BY OMISSION OR FAILURE TO DISCLOSE, FULLY AND TRULY, ALL THE MATERIAL FACT S NECESSARY FOR SUCH AN ASSESSMENT. 5 (C) THE HON'BLE CIT(A) HAS FAILED TO APPRECIATE TH AT THE NOTICE U/S 148 OF THE INCOME TAX ACT WAS NOT SERVED UPON ON THE APPELLANT WITHIN THE STIPULATED TIME LI MIT AND THEREFORE THE ASSESSMENT IS INVALID, NULL AND VOID- AB- INITIO. 3(A) THE HON'BLE CIT(A) HAS ERRED BOTH IN LAW AND I N FACTS IN CONFIRMING THE ADDITION OF RS. 4 LACS MADE BY THE LD. AO U/S 68 OF THE INCOME TAX ACT IN RESPECT OF G IFT RECEIVED BY HIM FROM SMT. RENU MAINI 3(B) THE HON'B LE CIT(A) HAS CONFIRMED THE ADDITION OF RS.4 LACS WITH OUT APPRECIATING THE FACT THAT THE APPELLANT DURING THE COURSE OF ASSESSMENT AND APPELLATE PROCEEDINGS HAD FILED C OPY OF DECLARATION OF GIFT BY THE DONOR ALONGWITH HER A FFIDAVIT, BANK STATEMENT OF THE DONOR AND THE ACKNOWLEDGMENT OF INCOME TAX RETURN OF THE DONOR AND THEREFORE THE ID ENTITY OF THE DONOR, GENUINENESS OF THE TRANSACTION AND TH E CREDITWORTHINESS OF THE DONOR STANDS PROVED AND THEREFORE THE QUESTION OF MAKING AN ADDITION IN RES PECT OF GIFT RECEIVED DOES NOT ARISE AT ALL. 4. THE HON'BLE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.1000/- BEING ALLEGED PAYMENT OF COMMISSION @ 0.25% ON THE GIFT RECEIVED WITHOUT HAV ING ANY EVIDENCE IN THIS REGARD AND THE ADDITION HAS BE EN MADE MERELY ON CONJECTURES AND SURMISES. 5. THE HON'BLE CIT(A) WHILE COMPUTING THE ADDITION OF RS. 4 LACS U/S 68 OF THE INCOME TAX ACT HAS FAILED TO APPRECIATE THE FACT THAT AS THE APPELLANT IS NOT HA VING ANY BUSINESS INCOME DURING THE YEAR THEREFORE HE WA S NOT REQUIRED TO MAINTAIN BOOKS OF ACCOUNTS AND THER EFORE THE PROVISION OF SECTION 68 ARE NOT APPLICABLE TO T HE APPELLANT AND, THEREFORE THE ADDITION HAS BEEN WRON GLY MADE. 6 THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, MO DIFY OR FOREGO ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED ITS RETURN OF INCOME ON 26.9.2003 DECLARING INCOME OF RS. 1,31 ,770/- WHICH WAS SUBSEQUENTLY PROCESSED U/S. 143(1) OF THE I.T. ACT, 1961. AO RECEIVED THE INFORMATION FROM THE DIRECTORATE OF I NCOME TAX (INV.), NEW DELHI THAT THE ASSESSEE HAD TAKEN BOGUS ACCOMMO DATION ENTRY AMOUNTING TO RS. 4,00,600/- DURING THE FINANCIAL YE AR UNDER CONSIDERATION. ACCORDINGLY, PROCEEDINGS U/S. 147 OF THE ACT WERE INITIATED AND A NOTICE U/S. 148 OF THE I.T. ACT DAT ED 14.3.2007 WAS ISSUED AND SERVED UPON THE ASSESSEE AND IN RESPONSE TO THE SAME, ASSESSEES COUNSEL ATTENDED THE PROCEEDINGS AND FIL ED THE DOCUMENTS. THEREAFTER, THE AO MADE THE ADDITION OF RS. 4,00,000/- BEING THE UNEXPLAINED GIFT AND COMPL ETED THE ASSESSMENT AT RS. 5,32,770/- VIDE HIS ORDER DATED 17.2.2017 PASSED U/S. 143(3)/147 OF THE I.T. ACT, 1961. 5. AGAINST THE ORDER OF THE LD. AO, ASSESSEE APPEAL ED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 12.4.2016 HAS DISMISSED THE APPEAL OF THE ASSESSEEE AND AFFIRMED THE ACTION OF THE AO ON THE LEGAL ISSUE I.E. REOPENING OF THE CASE U/S. 147/148 OF THE I.T. ACT, 1961 AS WELL AS ON MERITS. 6. AGGRIEVED WITH THE AFORESAID ORDER OF THE LD. C IT(A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7 7. LD. COUNSEL OF THE ASSESSEE HAS FILED THE TWO PA PER BOOKS ONE IS CONTAINING PAGES 1 TO 40 ATTACHING THEREWITH TH E COPY OF RETURN OF INCOME FOR AY 2003-04; COPY OF REPLY TO AO DATED 25 .10.2007; COPY OF REASONS RECORDED PROVIDED BY AO; COPY OF REPLY TO AO DATED 19.11.2007 ALONGWITH ANNEXURES; COPY OF WRITTEN SUB MISSION FILED BEFORE CIT(A); COPY OF REMAND REPORT DATED 20.1.201 0 AND COPY OF REJOINDER FILED BEFORE THE CIT(A). HE STATED THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE AO IN ASSUMIN G JURISDICTION U/S. 147 AND THAT TOO WITHOUT COMPLYING WITH THE MANDATO RY CONDITIONS AS PRESCRIBED UNDER SECTION 147 TO 151 OF THE I.T. ACT , 1961 AND THE REASONS RECORDED ARE INVALID AND CONTRARY TO LAW AN D FACTS AND THERE IS NO SATISFACTION AS PER LAW U/S. 151 OF THE ACT. HHE FURTHER DRAW OUR ATTENTION TOWARDS THE COPY OF REASONS FOR REOPE NING THE CASE U/S. 148 AND STATED THAT NO PROPER REASONS WERE RECORDED ; NO NEXUS BETWEEN THE MATERIALS RELIED UPON AND THE BELIEF FO RMED FOR ESCAPEMENT OF INCOME; NO APPLICATION OF MIND; NO PR OPER SATISFACTION WAS RECORDED BEFORE ISSUE OF NOTICE U/S. 148; NO IN DEPENDENT CONCLUSION THAT THERE WAS ESCAPEMENT OF INCOME. I T WAS FURTHER STATED THAT THE CASE WAS REOPENED ONLY ON THE BASIS OF INVESTIGATION WING INFORMATION WHICH SUFFERS WITH SERIOUS DEBILIT Y AND LACKS DEFINITENESS, WITHOUT DESCRIBING THE BASIC ASPECTS OF ALLEGED TRANSACTION AND IN THE ABSENCE OF THE SAME, WHOLE ACTION OF THE AO GETS VITIATED. TO SUPPORT HIS CONTENTION HE SUBM ITTED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASS ESSEE BY THE ITAT 8 DECISION DATED 09.1.2015 IN THE CASE OF G&G PHARMA INDIA LIMITED VS. ITO PASSED IN ITA NO. 3149/DEL/2013 (AY 2003-04 ) IN WHICH THE JUDICIAL MEMBER IS THE AUTHOR. HE FURTHER STATED THAT THE ABOVE DECISION OF THE ITAT DATED 9.1.2015 HAS BEEN UPHELD BY THE HONBLE JURISDICTIONAL HIGH COURT IN ITS DECISION DATED 08. 10.2015 IN ITA NO. 545/2015 IN THE CASE OF PR. CIT-4 VS. G&G PHARMA IN DIA LTD. IN VIEW OF THE ABOVE, HE REQUESTED THAT BY FOLLOWING THE AF ORESAID PRECEDENTS THE REASSESSMENT PROCEEDINGS OF THE AO MAY BE QUAS HED BY ACCEPTING THE APPEAL FILED BY THE ASSESSEE. 8. ON THE CONTRARY, LD.DR RELIED UPON THE ORDER PAS SED BY THE AUTHORITIES BELOW AND STATED THAT THE AO HAS PROPER LY RECORDED THE REASONS FOR REOPENING BY DUE APPLICATION OF MIND, H ENCE, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 9. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AND THE CASE LAW CITED BY THE ASSESSEE S COUNSEL ON THE ISSUE IN DISPUTE. IN MY VIEW, IT IS VERY M UCH NECESSARY TO REPRODUCE THE REASONS RECORDED BY THE AO BEFORE IS SUE OF NOTICE TO THE ASSESSEE U/S. 148 OF THE I.T. ACT, 1961 WHIC H IS REPRODUCED HEREUNDER:- SMT. BINDIYA AHUJA, G-78, ASHOK VIHAR, PHASE-I, DELHI 9 IN THIS CASE AN INFORMATION IS RECEIVED FROM THE O/ O THE DI (INV.-I, ARA CENTRE, JHANDEWALAN EXTENSION, NEW DEL HI VIDE OFFICE LETTER NO. DIT(INV)/I/2006-07/AE/1543 DATED 5.2.20 07 SMT. BINDIYA AHUJA HAS TAKEN BOGUS ACCOMMODATION ENTRIES FROM THE FOLLOWING PARTIES IN LIEU OF UNACCOUNTED MONEY PAID BY THE ABOVE NAMED ASSESSEE. AS PER ANNEXURE ENCLOSED WITH THE ABOVE LETTER DIT( INV. UNIT- I), NEW DELHI DATED 5.2.2007 THE DETAIL OF TRANSACT ION MADE BY THE ABOVE ASSESSEE IS AS UNDER:- DATE AMOUNT CHEQUE NO. NAME OF THE PARTY 400600 00874601 RENU MAINI 400600 00874501 RENU MAINI (SBI INDORE) THE RELEVANT ASSESSMENT YEAR INVOLVED IS 2003-04. IN VIEW THE ABOVE FACTS, I AM SATISFIED THAT SMT. BINDIYA AHUJA, R/O ASHOK VIHAR, PHASE-I, NEW DELHI HAS CONCEALED H IS INCOME RS. 8,01,200/- FOR TAXATION. SINCE THE AOUNT INCOME WHI CH HAS ESCAPED ASSESSMENT MORE THAN 100000/-, THEREFORE, NOTICE U/ S. 148 OF THE I.T. ACT, 1961 MAY BE ISSUED. SD/- (NAND LAL) INCOME TAX OFFICER, WARD 19(2), NEW DELHI 10 10. AFTER GOING THROUGH THE REASONS RECORDED BY THE AO, AS AFORESAID, I AM OF THE VIEW THAT AO HAS NOT APPLIE D HIS MIND SO AS TO COME TO AN INDEPENDENT CONCLUSION THAT HE HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED DURING THE YEAR. IN MY VIEW THE REASONS ARE VAGUE AND ARE NOT BASED ON ANY TANGIBLE MATERIAL AS WELL AS ARE NOT ACCEPTABLE IN THE EYES OF LAW. THE AO HAS MECHANICALLY ISSUED NOTICE U/S. 148 OF THE ACT, ON THE BASIS OF INFORMATION ALLEGEDLY RECEIVED BY HIM FROM THE DIRE CTORATE OF INCOME TAX (INVESTIGATION), NEW DELHI. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE A ND THE CASE LAW APPLICABLE IN THE CASE OF THE ASSESSEE, I AM OF TH E CONSIDERED VIEW THAT THE REOPENING IN THE CASE OF THE ASSESSEE FOR THE ASSTT. YEAR IN DISPUTE IS BAD IN LAW AND DESERVES TO BE QUASHED . MY VIEW IS SUPPORTED BY THE FOLLOWING JUDGMENT/DECISION:- PR. CIT VS. G&G PHARMA INDIA LTD. IN ITA NO. 545/2015 DATED 8.10.2015 OF THE DELHI HIGH COURT WHEREIN THE HONBLE COURT HAS ADJUDICATED THE ISSUE AS UNDER:- 12. IN THE PRESENT CASE, AFTER SETTING OUT FOUR EN TRIES, STATED TO HAVE BEEN RECEIVED BY THE ASSESSEE ON A S INGLE DATE I.E. 10TH FEBRUARY 2003, FROM FOUR ENTITIES WH ICH WERE TERMED AS ACCOMMODATION ENTRIES, WHICH INFORMATION WAS GIVEN TO HIM BY THE DIRECTORATE OF INVESTIGATION, THE AO STATED: 'I HAVE ALSO PERUSED VARIOUS MATERIALS AND REPORT FROM INVESTIGATION WING AND ON THAT BASIS IT IS EVIDENT THAT THE ASSESSEE COMPANY HAS INTRODUCED ITS OWN UNACCOUNTED MONEY IN ITS BANK ACCOUNT BY WAY OF ABOVE ACCOMMODATION ENTRIES.' THE ABOVE CONCLUSION IS UNHELPFUL IN UNDERSTANDING WHET HER 11 THE AO APPLIED HIS MIND TO THE MATERIALS THAT HE TA LKS ABOUT PARTICULARLY SINCE HE DID NOT DESCRIBE WHAT T HOSE MATERIALS WERE. ONCE THE DATE ON WHICH THE SO CALLE D ACCOMMODATION ENTRIES WERE PROVIDED IS KNOWN, IT WO ULD NOT HAVE BEEN DIFFICULT FOR THE AO, IF HE HAD IN FA CT UNDERTAKEN THE EXERCISE, TO MAKE A REFERENCE TO THE MANNER IN WHICH THOSE VERY ENTRIES WERE PROVIDED IN THE ACCOUNTS OF THE ASSESSEE, WHICH MUST HAVE BEEN TEND ERED ALONG WITH THE RETURN, WHICH WAS FILED ON 14TH NOVE MBER 2004 AND WAS PROCESSED UNDER SECTION 143(3) OF THE ACT. WITHOUT FORMING A PRIMA FACIE OPINION, ON THE BASIS OF SUCH MATERIAL, IT WAS NOT POSSIBLE FOR THE AO TO HA VE SIMPLY CONCLUDED: 'IT IS EVIDENT THAT THE ASSESSEE COMPANY HAS INTRODUCED ITS OWN UNACCOUNTED MONEY IN ITS BAN K BY WAY OF ACCOMMODATION ENTRIES'. IN THE CONSIDERED VI EW OF THE COURT, IN LIGHT OF THE LAW EXPLAINED WITH SUFFI CIENT CLARITY BY THE SUPREME COURT IN THE DECISIONS DISCU SSED HEREINBEFORE, THE BASIC REQUIREMENT THAT THE AO MUS T APPLY HIS MIND TO THE MATERIALS IN ORDER TO HAVE RE ASONS TO BELIEVE THAT THE INCOME OF THE ASSESSEE ESCAPED ASSESSMENT IS MISSING IN THE PRESENT CASE. 13. MR. SAWHNEY TOOK THE COURT THROUGH THE ORDER OF THE CIT(A) TO SHOW HOW THE CIT (A) DISCUSSED THE MATERI ALS PRODUCED DURING THE HEARING OF THE APPEAL. THE COUR T WOULD LIKE TO OBSERVE THAT THIS IS IN THE NATURE OF A POST MORTEM EXERCISE AFTER THE EVENT OF REOPENING OF THE ASSESSMENT HAS TAKEN PLACE. WHILE THE CIT MAY HAVE PROCEEDED ON THE BASIS THAT THE REOPENING OF THE ASSESSMENT WAS VALID, THIS DOES NOT SATISFY THE REQUIREMENT OF LAW THAT PRIOR TO THE REOPENING OF T HE ASSESSMENT, THE AO HAS TO, APPLYING HIS MIND TO THE MATERIALS, CONCLUDE THAT HE HAS REASON TO BELIEVE T HAT INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. UNLE SS 12 THAT BASIC JURISDICTIONAL REQUIREMENT IS SATISFIED A POST MORTEM EXERCISE OF ANALYSING MATERIALS PRODUCED SUBSEQUENT TO THE REOPENING WILL NOT RESCUE AN INHE RENTLY DEFECTIVE REOPENING ORDER FROM INVALIDITY . 14. IN THE CIRCUMSTANCES, THE CONCLUSION REACHED BY THE ITAT CANNOT BE SAID TO BE ERRONEOUS. NO SUBSTANTIAL QUESTION OF LAW ARISES. 15. THE APPEAL IS DISMISSED. 11. IN VIEW OF ABOVE, I AM OF THE CONSIDERED VIEW T HAT THE AFORESAID ISSUE IN DISPUTE IS EXACTLY THE SIMILAR A ND IDENTICAL TO THE ISSUE INVOLVED IN THE PRESENT APPEAL AND IS SQU ARELY COVERED BY THE AFORESAID DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF G&G PHARMA (SUPRA). HENCE, RESPECTFULLY FO LLOWING THE ABOVE PRECEDENT IN THE CASE OF PR. CIT-4 VS. G&G PH ARMA INDIA LTD. (SUPRA) I DECIDE THE LEGAL ISSUE IN DISPUTE IN FAVOR OF THE ASSESSEE AND AGAINST THE REVENUE AND ACCORDINGLY QU ASH THE REASSESSMENT PROCEEDINGS AND ALLOW THE LEGAL ISSUE. SINCE I HAVE ALREADY QUASHED THE REASSESSMENT PROCEEDINGS, AS AF ORESAID, THE OTHER ISSUES ARE NOT BEING DEALT WITH BEING ACADEMI C IN NATURE. 12. AS FAR AS ITA NO. 3868/DEL/2016 (AY 2003-04) IS CONCERNED, FOLLOWING THE CONSISTENT VIEW AS TAKEN I N ITA NO. 3895/DEL/2016 (AY 2003-04), AS AFORESAID, THE ITA N O. 3868/DEL/2016 (AY 2003-04)- TITLE SH. VIPIN AHUJA V S. ITO FILED BY THE ASSESSEE ALSO STAND ALLOWED. 13 13. IN THE RESULT, BOTH THE ASSESSEES APPEALS ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 03-1-2017. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 03-1-2017 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI. 14