Vadilal Dairy International Ltd., Ahmedabad V. The ACIT., Circle-8, Ahmedabad

ITA 460/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6862 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-03-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 12-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JHA
• Keywords: Reopening of assessment; Capital asset; Business income; Depreciation; Period of limitation; Question of law; Block assessment; Capital receipt; Reason to believe; Reassessment proceedings
• Section: 143(3); 2(14); 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) ITA NO.460/AHD/2009 A. Y.: 1994-95 VADILAL DAIRY INTERNATIONAL LTD., C/O. KANTILAL PATEL & CO., CHARTERED ACCOUNTANTS, 202 PARITOSH, USMANPURA (RIVER SIDE), AHMEDABAD 380 013 VS THE A. C. I. T., CIRCLE-8, AJANTA COMMERCIAL CENTER, ASHRAM ROAD, AHMEDABAD PA NO. AABCV 0520A (APPELLANT) (RESPONDENT) APPELLANT BY SHRI S. N. SOPARKAR, WITH MS. URVASHI SHODHAN, AR RESPONDENT BY SHRI S. K. JHA, SR. DR. O R D E R PER BHAVNESH SAINI: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XI V, AHMEDABAD DATED 26-11-2008 FOR ASSESSMENT YEAR 1994-95, CHALL ENGING REOPENING OF THE ASSESSMENT U/S 147 READ WITH SECTI ON 150(1) OF THE IT ACT AND FURTHER CONFIRMATION OF ADDITION OF RS.8 0,00,000/- HAS BEEN CHALLENGED ON VARIOUS GROUNDS OF APPEAL. 2. THE FACTS OF THE CASE ARE THAT THE ORIGINAL ASSE SSMENT FOR ASSESSMENT YEAR 1992-93 WAS COMPLETED IN THIS CASE ON 31-03-1995 BY MAKING ADDITION OF RS. 80 LACS RECEIVED BY THE A SSESSEE FROM NEUMATIC MARKETING COMPANY IN LIEU OF ALLOWING THAT COMPANY TO MARKET AND SELL ITS PRODUCTS IN CERTAIN STATES. THE LEARNED CIT(A) ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 2 DELETED THE SAID ADDITION BY HOLDING THAT THE RECEI PT DID NOT ACCRUE TO THE ASSESSEE IN ASSESSMENT YEAR 1992-93 AS THE AGRE EMENT CAME INTO FORCE IN ASSESSMENT YEAR 1994-95 AND THAT THE RECEIPT WAS CAPITAL IN NATURE . IN FURTHER APPEAL, THE ITAT HELD THAT THE RECEIPT PERTAINED TO ASSESSMENT YEAR 1994-95 AND NOT TO ASS ESSMENT YEAR 1992-93, BUT THE ITAT DID NOT GIVE ANY FINDING ON THE NATURE OF RECEIPT. EVEN THE HONBLE GUJARAT HIGH COURT HELD THAT THE RECEIPT PERTAINED TO ASSESSMENT YEAR 1994-95. IN VIEW OF TH E FINDING OF THE APPELLATE AUTHORITIES THAT THE RECEIPT PERTAINS TO ASSESSMENT YEAR 1994-95, THE AO ISSUED A NOTICE U/S 148 READ WITH S ECTION 150 OF THE IT ACT TO THE ASSESSEE ON 14-03-2007, AS THE INCOME CHARGEABLE TO TAX FOR ASSESSMENT YEAR 1994-95 HAD ESCAPED ASSESSM ENT. THE ASSESSEE MADE A REQUEST TO BEFORE THE AO TO CANCEL THE NOTICE U/S 148 OF THE IT ACT, ON THE GROUND THAT THERE WAS NO FINDING OR DIRECTION GIVEN BY ANY AUTHORITY IN RELATION TO ASSESSMENT YE AR 1994-95 USING WHICH THE PROVISIONS OF SECTION 150 COULD BE INVOKE D. THE ASSESSEE ALSO REQUESTED FOR A COPY OF THE REASONS RECORDED B Y THE AO. THE AO THEREAFTER ISSUED NOTICE U/S 143(2) OF THE IT ACT A ND ALSO DISPOSED OF THE OBJECTIONS RAISED BY THE ASSESSEE BY OBSERVING THAT THE HONBLE GUJARAT HIGH COURT IN ITS ORDER FOR ASSESSMENT YEAR 1992-93, HAS CATEGORICALLY MENTIONED THAT THE RECEIPT PERTAINED TO ASSESSMENT YEAR 1994-95 AND THIS OBSERVATION OF THE HONBLE HIGH CO URT WAS A FINDING WITHIN THE MEANING OF SECTION 150(1) OF THE IT ACT. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THAT THERE WAS NO FINDING OR DIRECTION IN RESPECT OF TAXABILITY OF INCOME WITH R EFERENCE TO ASSESSMENT YEAR 1994-95 AND THE HONBLE HIGH COURT HAD ONLY AFFIRMED THE FINDING OF THE LEARNED CIT(A) AND ITAT AND FURTHER ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 3 SUBMITTED THAT THE FINDING OF THE LEARNED CIT(A) TH AT THE RECEIPT WAS NEITHER BUSINESS INCOME NOR CHARGEABLE AS CAPITAL G AINS HAS NOT BEEN REVERSED BY ANY APPELLATE AUTHORITIES AND, THE REFORE, THE SAME WOULD PREVAIL IN ASSESSMENT YEAR 1994-95 ALSO. THE AO HOWEVER, DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND OBSER VED THAT THE HONBLE HIGH COURT HAS CATEGORICALLY HELD THAT THE RECEIPT OF RS.80 LACS HAS ACCRUED TO THE ASSESSEE IN ASSESSMENT YEAR 1994-95 AS THE AGREEMENT WITH NEUMATIC MARKETING COMPANY HAS COMME NCED FROM 1-4-1993 AND THE OBSERVATION OF THE HONBLE HIGH CO URT WAS A FINDING WITHIN THE MEANING OF THE PROVISIONS OF SECTION 150 (1) OF THE IT ACT. THE AO RELIED ON THE DECISION OF THE HONBLE SUPREM E COURT IN THE CASE OF CIT VS VENKATESHWARA HATCHERIES 237 ITR 174 WHEREIN IT HAS BEEN HELD THAT THE WORD FINDING HAS NOT BEEN DEFINED IN THE ACT AND ALSO DICTIONARY MEANING OF THE WORD HAS TO BE REFERRED TO . THE AO ALSO RELIED UPON THE DECISION IN THE CASE OF S. P. GUPTA VS PRESIDENT OF INDIA AIR, 1982 (SC) 149 AND CIT VS AJANTA PRODUCTS LTD. 55 ITR 741 WHEREIN IT HAS BEEN EMPHASIZED THAT THE GOLDEN RULE OF INTERPRETATION IS THE LITERAL RULE OF INTERPRETA TION WHICH STATES THAT THE WORDS OF A STATUTE MUST BE GIVEN ITS ORDINARY MEANI NG. THE AO FURTHER OBSERVED THAT IN THE ASSESSEES CASE, AS A RESULT O F THE INQUIRY AND INVESTIGATION BY THE APPELLATE AUTHORITIES, IT WAS ESTABLISHED THAT THE AGREEMENT WITH NEUMATIC MARKETING COMPANY LTD. HAD COMMENCED FROM 1-4-1993 I.E. FROM ASSESSMENT YEAR 1994-95 AND , THEREFORE, THIS CONCLUSION REACHED WAS FINDING WITHIN THE MEANING O F SECTION 150(1) OF THE IT ACT AND, THEREFORE, THE OBJECTION OF THE ASSESSEE THAT THERE WAS NO FINDING IN THE ORDER OF THE HONBLE GUJARAT HIGH COURT WAS REJECTED. ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 4 3. THE ASSESSEE DURING THE COURSE OF APPELLATE PROC EEDINGS BEFORE THE LEARNED CIT (A) ALMOST SUBMITTED THE SAM E ARGUMENTS AS TAKEN DURING THE ASSESSMENT PROCEEDINGS AND SUBMITT ED BY REFERRING TO PARA 8 OF THE CIT(A)S ORDER DATED 24-04-1996 FO R ASSESSMENT YEAR 1992-93 THAT THERE WAS NO FINDING REGARDING THE YEA R OF TAXABILITY OF THE INCOME ARISING ON TRANSFER OF MARKETING RIGHTS AND THE FINDINGS WERE IN RESPECT OF NON-ACCRUAL OF INCOME IN ASSESSM ENT YEAR 1992- 93. IT WAS SUBMITTED BY REFERRING TO PARA 8 OF THE ORDER OF THE ITAT DATED 24-03-2004 THAT THERE WAS NO FINDING REGARDIN G THE YEAR OF TAXABILITY OF THE INCOME ARISING ON TRANSFER OF THE MARKETING RIGHTS AND THE FINDINGS WERE IN RESPECT OF NON-ACCRUAL OF THE INCOME IN ASSESSMENT YEAR 1992-93. SIMILARLY, THERE WAS NO FI NDING IN THE ORDER OF THE HONBLE HIGH COURT. IT WAS SUBMITTED THAT TH ERE WAS NO FINDING IN ANY OF THE APPELLATE ORDERS THAT THE INCOME ON S ALE OF MARKETING RIGHTS WAS TAXABLE IN ASSESSMENT YEAR 1994-95, NOR THERE WAS ANY DIRECTION FOR TAXING THE INCOME ON SALE OF MARKETIN G RIGHTS IN ASSESSMENT YEAR 1994-95. IT WAS FURTHER SUBMITTED T HAT NONE OF THE APPELLATE ORDERS CONTAINED ANY FINDINGS OR DIRECTIO NS FOR ASSESSMENT OF INCOME OF RS. 80 LACS ON TRANSFERRING OF THE MAR KETING RIGHTS IN ASSESSMENT YEAR 1994-95 AND THEREFORE, THE BENEFIT OF UNLIMITED PERIOD FOR ISSUE OF NOTICE U/S 148 BY INVOKING SECT ION 150 WAS NOT AVAILABLE AND THE NOTICE ISSUED BY THE AO WAS TIME BARRED. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE DEPARTMENT HAS EXHAUSTED ALL ATTEMPTS TO TAX THE SA ID INCOME IN ASSESSMENT YEAR 1992-93 UP TO THE HONBLE GUJARAT H IGH COURT AND WHEN THE DEPARTMENT FELT THAT THEY WERE GOING ON TH E WRONG PATH, THE DEPARTMENT FELT THAT THE SAID INCOME SHOULD BE TAXE D IN ASSESSMENT ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 5 YEAR 1994-95 AND THE NOTICE U/S 148 WAS ISSUED THER EAFTER. THE LEARNED COUNSEL FOR THE ASSESSEE IN SUPPORT OF HIS CONTENTION PLACED RELIANCE ON THE DECISION IN THE CASE OF ITO VS MURL IDHAR BHAGWANDAS 52 ITR 335. 4. THE LEARNED CIT(A) CONSIDERING THE SUBMISSIONS O F THE ASSESSEE UPHELD THE REOPENING OF THE ASSESSMENT U/S 147 READ WITH SECTION 150 (1) OF THE IT ACT. HIS FINDINGS ARE REP RODUCED AS UNDER: 4.2 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE A.R. IT IS SEEN THA T THE C.I.T. (APPEALS) DELETED THE ADDITION OF RS. 80 LAKHS MADE FOR A.Y. 1992-93, BY OBSERVING THAT THE SAME DID NOT ACCRUE IN THAT YEAR, CONSIDERING THE F ACT THAT THE AGREEMENT IN THIS RESPECT CAME INTO FORCE IN THE AY. 1994-95 AND, THEREFORE, THE RECEIPT PERTAI NED TO AY 1994-95 . EVEN THOUGH THE I.T.A.T. DID NOT GIVE ANY FINDING WITH REGARD TO THE NATURE OF THIS RECEI PT, WHETHER REVENUE / CAPITAL, IT HAD HELD THAT THE RECEIPT PERTAINED TO A. Y. 1994-95 I AM NOT AGREEABLE TO TH E CONTENTION OF THE AR. THAT THERE WAS NO FINDING TH AT THIS AMOUNT WAS TAXABLE IN AY. 1994-95, AS THE APPELLATE AUTHORITIES HAVE HELD THAT THE RECEIPT OF THIS AMOUNT PERTAINED TO A.Y. 1994-95 AND IT WAS CLEARLY A 'FINDING'. THE CASE LAW AS RELIED UPON BY THE A.R. IS NOT APPLICABLE IN THE APPELLANT'S CASE. 4.3 I RELY ON DECISION OF DCIT VS. SPENCES HOTELS P. LTD. REPORTED IN 289 ITR 145 (KARN) WHEREIN DECISION OF SINGLE JUDGE IN THE SAME CASE REPORTED IN 263 ITR 263 (KARN) WAS SET ASIDE AND IT WAS HELD THAT THE NOTICE ISSUED TO THE ASSESSEE WAS PURSUANT TO THE FINDING OF THE TRIBUNAL REGARDING INCOME THAT HAD ESCAPED ASSESSMENT . THE AR. HAS RELIED UPON THE DECISION OF COURT IN CASE OF ITO VS MURALIDHAR ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 6 BHAGWAN DAS REPORTED IN 52 ITR 355 (SC) TO CONTEND THAT THE INCIDENTAL FINDING OF APPELLATE AUTHORITY THAT THE INCOME BELONGED TO AN YEAR OTHER THAN THE YEAR UNDER APPEAL IS NOT A FINDING NECESSARY FOR DISPOSAL AN APPEAL. THUS A CCORDING TO THE AR, THE FINDING OF THE C.I.T. (APPEALS) AND THE TRIBUNAL THAT INCOME DID NOT ACCRUE IN A.Y. 1992-93 CAN NOT BE CONSTRUED AS A FINDING TO REOPEN ASSESSMENT FOR A.Y. 1994- 95. HOWEVER THE SAME IS NOT ACCEPTABLE IN VIEW OF EXPLANATION 2 TO SECTION 153 OF THE ACT WHICH WAS INSERTED TO SUPERSEDE THE JUDGMENT OF THE SUPREME COURT IN CASE OF ITO V. MURALIDHAR BHAGWAN DAS REPORTED IN 52 ITR 335(SC) AND NKT SIVALINGAM CHETTIAR 66 ITR 586(SC). EXPLANATIONS 2 AND 3 HAVE ENLARGED THE SCOPE OF SECTION 153 OF THE ACT. IN THE CASE OF THE APPELLANT EXPLANATION 2 TO SECTION 153 OF THE ACT IS WHICH READS AS UNDER; EXPLANATION 2.WHERE, BY AN ORDER REFERRED TO IN CLAUSE (II) OF SUB SECTION (3), ANY INCOME IS EXCLUDED FROM THE TOTAL INCOME OF THE ASSESSEE FOR AN ASSESSMENT YEAR, THEN, AN ASSESSMENT OF SUCH INCOME FOR ANOTHER ASSESSMENT YEAR SHALL, FOR THE PURPOSES OF SECTION 150 AND THIS SECTION , BE DEEMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER.' THEREFORE, AS INCOME OF RS.80 LAKHS HAS BEEN EXCLUDED FROM TOTAL INCOME OF THE APPELLANT FOR A.Y . 1992-93 VIDE ORDERS OF THE C. I. T. (A), ITAT AND O RDER OF HIGH COURT, THE ASSESSMENT OF SUCH INCOME IN A.Y . 1994-95 I.E. THE YEAR UNDER CONSIDERATION IS DEEMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDE R IN VIEW OR EXPLANATION 2 TO SECTION 153 OF THE I. T. ACT. ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 7 4.4 IT HAS BEEN HELD IN CIT VS AMY COLABAWALA REPORTED IN 243 ITR 19 (KER) AS UNDER: A BARE READING OF THE QUOTED PORTION AND THE UNDERLINED PORTION AS WELL MAKES IT CLEAR THAT THE OBSERVATIONS MADE, WHICH FORMED THE BASIS FOR TAKIN G ACTION OF REASSESSMENT, HAD DEFINITE BEARING ON THE EARLIER ADJUDICATION. A FINDING CAN BE, AS OBSERV ED BY THE APEX COURT IN ITO V. MURLIDHAR BHAGWAN DAS [1964] 52 ITR 335, ONLY THAT WHICH IS NECESSARY FOR THE DISPOSAL OF AN APPEAL IN RESPECT OF AN ASSESSMENT O F A PARTICULAR YEAR. IN THAT CONTEXT, FINDING IS TH E CONCLUSION WHICH THE PRESCRIBED AUTHORITY/FORUM HAS NECESSARILY TO REACH SO AS TO DISPOSE OF THE APPEAL BEFORE IT. THE EXPRESSION FINDING OR DIRECTION CANNOT BE TREATED AS IN VACUUM. THE WORDS IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING O R DIRECTION HAVE TO BE COLLATED WITH AND CANNOT ENLARGE THE SCOPE OF THE FINDING OR DIRECTION MENTIONED IN THE PROVISION. THE FINDING MUST BE IN RESPECT OF A PARTICULAR PERSON OR PERSONS AND IN RESPECT OF THE PARTICULAR ASSESSMENT YEAR. IT IS TO BE NOTED THAT THE DECISION IN MURLIDHARS CASE [1964] 52 ITR 335 (SC) WAS RENDERED IN RELATION TO SECTION 34 (3) (SECOND PROVISO) OF THE 1922 ACT. THOUGH SECTION 153(3) (II) IS MODELED ON THE LINES OF THE EARLIER PROVISIONS, EXPLANATIONS -2 AND 3 HAVE ENLARGED THE SCOPE. EXPLANATION 2 CREATES A FICTION. EXPLANATION 3 ERODES THE IRON JACKET OF ANY PERSON CONTEMPLATED I N MURLIDHARS CASE [1964] 52 ITR 335 (SC). IT CAN BE A PERSON UNCONNECTED WITH THE APPELLANT. 4.5 IT HAS BEEN HELD IN AMBAJI TRADERS P. LT. VS. I TO REPORTED IN 105 ITR 273 (BOM) WHILE EXPLAINING THE SIGNIFICANCE OF EXPLANATION 2 IN SECTION 153 (3) OF THE ACT AS UNDER; ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 8 THE EFFECT OF SECOND EXPLANATION IS THAT WHERE THE INCOME OF AN ASSESSEE HAS BEEN EXCLUDED FROM ONE ASSESSMENT YEAR AND IT HAS TO BE INCLUDED IN ANOTHER ASSESSMENT YEAR, THIS HAS BEEN FICTIONALLY TREATED FOR THE PURPOSE OF SECTION 150 AS A PROCEEDING IN CONSEQUENT OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER. WHERE SUCH INCOME EXCLUDED FROM ONE YEAR HAS TO BE INCLUDED IN ANOTHER YEAR AND SUCH PROCEEDING IS FICTIONALLY TREATED AS ONE UNDER SECTION 150, THEN THE BAR OF LIMITATION WILL NOT APPLY IN VIEW OF THE EXPRESS PROVISIONS IN SECTION 153(3). 4.6 THE ABOVE VIEW HAS BEEN ALSO HELD IN THE CASE OF ACIT VS. RAJENDRA KUMAR 24 SOT 262 (2008) (DELHI ) WHEREIN IT WAS HELD THAT TRIBUNAL HAD SPECIFICALLY GIVEN DIRECTION THAT AMOUNT OF CAPITAL GAIN WOULD B E TAXABLE DURING ASSESSMENT YEAR 1980-81, HENCE NOTICE OF REASSESSMENT ISSUED BY A. O. WAS SNOT BARRED BY TIME IN AS MUCH AS IT WAS SAVED BY PROVISIONS OF SECTION 150(1) OF THE I. T. ACT. 4.7 IN VIEW OF ABOVE FACTS AND THE CASE LAWS, I HOL D THAT THERE IS NOTHING WRONG IN THE INTERPRETATION O F A. O. ON THE OBSERVATIONS OF APPELLATE AUTHORITIES AND THE ACTION OF REOPENING OF ASSESSMENT U/S 147 BY INVOKING PROVISIONS OF SEC. 150 (1) IS HELD TO BE JUSTIFIED AND NO INTERFERENCE WHATSOEVER IS CALLED FOR. THE GROUND NO.2 IS THEREFORE DISMISSED. 5. IN RESPECT OF GROUND NO.3 THE A. R. HAS SUBMITTED THAT THE POWERS CONFERRED BY SUBSECTION (1) TO THE REVENUE FOR MAKING ASSESSMENT ETC. ARE WITHDRAWN IN A SPECIAL CASE COVERED BY SUBSECTION (2). THIS COVERS A CASE WHERE THE ORDER OF AN ASSESSMENT YEAR IS MADE SUCH ORDER BEING THE SUBJECT MATTER OF AN APPEAL, REFERENCE OR REVISION, THE FINDINGS OR DIRECTION OF WHICH RESULTS IN AN ASSESSMENT ETC. REFERRED TO IN SUBSECTION (1). ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 9 HOWEVER AT THE TIME SUCH ORDER IS MADE THE ASSESSMENT ETC. IN RESPECT OF THAT ASSESSMENT YEAR IS ITSELF TIME BARRED BY VIRTUE OF ANY OTHER PROVISION OF THE ACT. ACCORDING TO THE A. R. IN THE CASE OF THE APPELLANT THE REASSESSMENT OF A. Y. 1994-95 HAS BECOME TIME BARED WHEN THE ORDERS OF HIGH COURT AND ITAT WERE PASSED. 5.1 I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE A. R. CAREFULLY. I FIND THAT THE A. R. HAS REFERRED TO PROVISIONS OF SECTION 150 (2) THOUG H IN GROUNDS OF APPEAL IT HAS BEEN REFERRED TO SECTION 151(2) OF THE I. T. ACT. AS SECTION 151 REFERS TO SANCTION FOR ISSUE OF 148 NOTICE, WHAT THE A. R. IS REFERRING IS TO SECTION 150(2) OF THE I. T. ACT. TH E COURTS HAVE HELD THAT IN CASES COVERED BY SECTION 1 50 IT IS NOT NECESSARY TO OBTAIN SANCTION OF SUPERIOR AUTHORITIES UNDER SECTION 151 OF THE I. T. ACT. SO REFERENCE TO SECTION 151 WOULD NOT BE OF ANY HELP T O THE APPELLANT. FURTHER WHEN THE ASSESSMENT ORDER FO R A. Y. 1992-93 WAS PASSED BY THE A. O. ON 31.3.1995 AND WHEN THE ORDER OF C. I. T. (A) WAS PASSED FOR A . Y. 1992-93 I.E. ON 24.04.1996 THE A. O. HAD TIME TO REOPEN ASSESSMENT IN CASE OF A. Y. 1994-95 AS SIX YEAR TIME LIMIT TO REOPEN THE ASSESSMENT OF A. Y. 1994-95 WAS AVAILABLE TILL 31.03.2001. THEREFORE WH EN SUCH REASSESSMENT COULD HAVE BEEN MADE FOR A. Y. 1994-95 AT THE TIME OF PASSING THE C.I.T. (A)S ORD ER FOR A. Y. 1992-93 I.E. 24.04.1996, WHICH IS THE SUBJECT MATTER OF APPEAL WHEREIN SUCH DIRECTION OR FINDING HAS BEEN GIVEN, PROVISIONS OF SECTION 150 (2) WOULD NOT BE ATTRACTED AND THE TIME LIMIT FOR ISSUE OF NO TICE U/S. 148 WILL NOT APPLY AS PER PROVISIONS OF SECTIO N 150(1) OF THE I. T. ACT. IN VIEW OF ABOVE OBSERVATI ONS, THE GROUND NO.3 IS DISMISSED. THE LEARNED CIT(A) ON MERIT ALSO CONFIRMED THE ADDI TION OF RS.80 LACS HOLDING IT TO BE TRADING RECEIPT AND TAXABLE INCOME UNDER THE ACT. ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 10 5. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND S UBMITTED THAT THE LEARNED CIT(A) IN THE ASSESSMENT YEAR 1992-93 H ELD THAT THE INCOME IS NEITHER ACCRUED NOR RECEIVED BY THE ASSES SEE IN THIS ACCOUNTING YEAR. THE LEARNED COUNSEL FOR THE ASSESS EE, THEREFORE, SUBMITTED THAT THERE IS NO FINDING OR DIRECTION ISS UED BY THE LEARNED CIT(A) FOR MAKING ANY ADDITION IN THE ASSESSMENT YE AR UNDER APPEAL I.E. 1994-95. HE HAS FURTHER SUBMITTED THAT THE LEA RNED CIT(A) SIMILARLY CONSIDERED THE ISSUE WHETHER THE AMOUNT I N QUESTION IS A CAPITAL OR REVENUE RECEIPT AND IN PARA 14 AND 18 OF THE ASSESSMENT ORDER HELD THAT THE RECEIPT IN QUESTION IS NOT A RE VENUE RECEIPT BUT A CAPITAL RECEIPT. HE HAS SUBMITTED THAT THE AO IN TH E REASONS RECORDED U/S 147 OF THE IT ACT (PB-13) THOUGH HAS REPRODUCED PARA 8 OF THE ORDER OF THE LEARNED CIT(A) BUT DID NOT REFER TO TH ESE FINDINGS OF THE LEARNED CIT(A) IN PARA 14 AND 18 IN THE REASONS FOR REOPENING OF THE ASSESSMENT. HE HAS SUBMITTED THAT THE AO IN THE ASS ESSMENT ORDER SPECIFICALLY NOTED THAT THE LEARNED CIT(A) IN THE A SSESSMENT YEAR 1992-93 HELD THAT THE RECEIPT IN QUESTION IS NOT RE VENUE IN NATURE AND IS A CAPITAL RECEIPT. THE LEARNED COUNSEL FOR THE A SSESSEE SUBMITTED THE DEPARTMENTAL APPEAL WAS DISMISSED BY THE TRIBUN AL ON THIS GROUND AND EVEN IN THE ORDER OF THE TRIBUNAL NO FIN DINGS OR DIRECTIONS HAVE BEEN ISSUED FOR TAXABILITY OF THE SAME INCOME IN THE ASSESSMENT YEAR UNDER APPEAL I.E. 1994-95. HE HAS FURTHER SUBM ITTED THAT THE REVENUE HAD RAISED BOTH THE QUESTIONS BEFORE THE HO NBLE GUJARAT HIGH COURT REGARDING ACCRUAL OF INCOME IN THE ASSES SMENT YEAR 1992- 93 AND WHETHER IT WAS CAPITAL RECEIPT BUT THE HONB LE HIGH COURT DISMISSED THE APPEAL OF THE REVENUE HOLDING NO SUBS TANTIAL QUESTION ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 11 OF LAW. HE HAS SUBMITTED THAT NO DIRECTIONS OR FIND INGS HAVE BEEN GIVEN IN THE ORDERS OF THE TRIBUNAL AND THE HONBLE HIGH COURT TO TAX THE SAID INCOME IN THE ASSESSMENT YEAR UNDER APPEAL 1994-95. HE HAS SUBMITTED THAT MERE REMARKS OR OBSERVATIONS IN THE APPELLATE ORDERS WOULD NOT CONSTITUTE FINDINGS OR DIRECTIONS WITHIN THE MEANING OF SECTION 150 OF THE IT ACT. HE HAS FURTHER SUBMITTED THAT THE ISSUE OF, WHETHER RECEIPT IS REVENUE OR CAPITAL, HAS REACHED FINALITY; THEREFORE, NO SIMILAR ADDITION CAN BE MADE IN THE ASSESSMENT Y EAR UNDER APPEAL. HE HAS SUBMITTED THAT REOPENING OF THE ASSE SSMENT IS MADE BY RECORDING REASONS FOR REOPENING OF THE ASSESSMEN T ON 14-3-2007 FOR ASSESSMENT YEAR 1994-95 UNDER APPEAL. THEREFORE , IT IS CLEARLY TIME BARED AS PER THE PROVISIONS OF SECTION 149 OF THE IT ACT BECAUSE REASSESSMENT CAN BE INITIATED WITHIN THE PERIOD OF SIX YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE LEARNE D COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT SINCE THE LEARNED CIT( A) HELD THAT THE RECEIPT IN QUESTION IS CAPITAL RECEIPT, THEREFORE, NO INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE IT ACT AND REOPENING OF THE ASSESSMENT IS BASED ON NON-EXISTING REASONS AND AS SUCH REOPENING OF THE ASSESSMENT IS BAD IN LAW. THE LEARNED COUNSEL RELIED UPON THE FOLLOWING DECISIONS : 1) IN THE CASE OF GANGADHAR BAIJNATH 69 ITR 500 WHE REIN IT HAS BEEN HELD AS UNDER: HELD, THAT THE PROVISO TO SECTION 34(3) DOES NOT ENABLE THE INCOME-TAX OFFICER TO IGNORE THE BAR OF LIMITATION IN RESPECT OF AN ASSESSMENT OF ESCAPED INCOME FOR ANY ASSESSMENT YEAR BUT IT ENABLES HIM TO DO SO ONLY IN RESPECT OF THAT ASSESSMENT YEAR WHICH WAS THE SUBJECT-MATTER ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 12 OF APPEAL OR REVISION IN WHICH THE FINDING OR DIRECTION WAS GIVEN, AND THE REASSESSMENT PROCEEDINGS TAKEN BY THE INCOME-TAX OFFICER, WHICH ACCORDING TO THE TRIBUNAL FELL UNDER SECTION 34(1) (B), WERE ACCORDINGLY BARRED BY LIMITATION. 2) IN THE CASE OF SPENCES HOTELS P. LTD. VS DCIT 26 3 ITR 263 WHEREIN IT HAS BEEN HELD AS UNDER: HELD ACCORDINGLY, THAT SINCE THE PAYMENTS RECEIVED BY THE ASSESSEE IN THE YEAR 1975 WERE TAXED IN THE ASSESSMENT YEAR 1976-77 AND THE FACTS RELATING TO THE AGREEMENT WERE WITHIN THE KNOWLEDGE OF THE ASSESSING OFFICER IN THAT ASSESSMENT YEAR, THE FOUR YEAR PERIOD IN TERMS OF SECTION 147 ENDED ON MARCH 31, 1981, I.E. FOUR YEARS FROM MARCH 31, 1977, AND THE PERIOD OF LIMITATION UNDER SECTION 149 (1) (A) (III) FOR REOPENING THE ASSESSMENT EXPIRED ON MARCH 31, 1987, AND, THEREFORE, THE NOTICE OF REASSESSMENT DATED NOVEMBER 17, 1998 WAS BARRED BY LIMITATION. 3) IN THE CASE OF CIT VS VAIKUNDOM RUBBER CO. LTD. 249 ITR 19 IN WHICH IT WAS HELD AS UNDER: REASSESSMENT LIMITATION EXCLUSION FROM LIMITATION EFFECT OF SECTION 150(2) NO EXCLUSION WHERE REASSESSMENT WAS BARRED AT THE TIME OF ORDER WHICH WAS SUBJECT MATTER OF APPEAL, REFERENCE OR REVISION. 4) IN THE CASE OF LOTUS INVESTMENTS LTD. VS ACIT AN D OTHERS 288 ITR 459 WHEREIN IT WAS HELD AS UNDER: ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 13 ADDITION IN BLOCK ASSESSMENT DELETED ON GROUND OF LACK OF EVIDENCE REMARKS THAT REASSESSMENT PROCEEDING COULD BE TAKEN NOT A FINDING OR DIRECTION WITHIN MEANING OF SECTION 150. 6. ON THE OTHER HAND, THE LEARNED DR RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THOUGH THE REV ENUE CHALLENGED THE ORDER OF THE LEARNED CIT(A) IN HOLDING THE RECE IPT IN QUESTION TO BE CAPITAL RECEIPT BEFORE THE TRIBUNAL BUT SUCH GROUND WAS NOT DECIDED BY THE TRIBUNAL. THEREFORE, THERE IS NO MISTAKE ON THE PART OF THE AO IN REOPENING OF THE ASSESSMENT. HE HAS SUBMITTED TH AT THERE ARE SPECIFIC FINDINGS AND OBSERVATIONS IN THE APPELLATE ORDERS THAT THE AGREEMENT IN QUESTION RENEWED AND CAME INTO OPERATI ON FROM 1-4-1993. THEREFORE, THERE IS A SPECIFIC FINDING T HAT THE RECEIPT THROUGH THIS AGREEMENT WOULD FALL IN THE ASSESSMENT YEAR UNDER APPEAL. THE LEARNED DR, THEREFORE, SUBMITTED THAT S INCE THE INCOME TAXABLE TO TAX HAS ESCAPED ASSESSMENT, THEREFORE, T HE AO CORRECTLY REOPENED THE ASSESSMENT WITH THE AID OF SECTION 150 (1) OF THE IT ACT AND AS SUCH PERIOD OF LIMITATION WOULD BE EXCLUDED AS PROVIDED U/S 149 OF THE IT ACT. THE LEARNED DR HEAVILY RELIED UP ON THE OBSERVATION OF THE LEARNED CIT(A) IN ASSESSMENT YEAR 1992-93 TO SHOW THAT FINDINGS AND DIRECTIONS HAVE BEEN ISSUED THAT INCOM E IS TAXABLE IN THE ASSESSMENT YEAR UNDER APPEAL. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MAT ERIAL ON RECORD. SECTION 147 OF THE IT ACT READS AS UNDER: ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 14 [ INCOME ESCAPING ASSESSMENT. 147. IF THE [ASSESSING] OFFICER [HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153 , ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDING S UNDER THIS SECTION, OR RECOMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS T HE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERNED (HEREAFTER IN THIS SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASSESSMENT YEAR) : PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS FROM TH E END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PAR T OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) O F SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, FOR TH AT ASSESSMENT YEAR: [ PROVIDED FURTHER THAT THE ASSESSING OFFICER MAY ASSESS OR REASSESS SUCH INCOME, OTHER THAN THE INCOME INVO LVING MATTERS WHICH ARE THE SUBJECT MATTERS OF ANY APPEAL , REFERENCE OR REVISION, WHICH IS CHARGEABLE TO TAX A ND HAS ESCAPED ASSESSMENT.] EXPLANATION 1.PRODUCTION BEFORE THE ASSESSING OFFI CER OF ACCOUNT BOOKS OR OTHER EVIDENCE FROM WHICH MATER IAL EVIDENCE COULD WITH DUE DILIGENCE HAVE BEEN DISCOVE RED BY THE ASSESSING OFFICER WILL NOT NECESSARILY AMOUNT TO DISCLOSURE WITHIN THE MEANING OF THE FOREGOING PROV ISO. ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 15 EXPLANATION 2.FOR THE PURPOSES OF THIS SECTION, TH E FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHERE IN COME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, NAMELY: ( A) WHERE NO RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE ALTHOUGH HIS TOTAL INCOME OR THE TOTAL INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE I S ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME-TAX ; (B) WHERE A RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE BUT NO ASSESSMENT HAS BEEN MADE AND IT IS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS UNDERSTATED THE INCOME OR HAS CLAIMED EXCESSIVE LOS S, DEDUCTION, ALLOWANCE OR RELIEF IN THE RETURN ; ( C ) WHERE AN ASSESSMENT HAS BEEN MADE, BUT ( I ) INCOME CHARGEABLE TO TAX HAS BEEN UNDERASSESSED ; OR ( II ) SUCH INCOME HAS BEEN ASSESSED AT TOO LOW A RATE ; OR (III) SUCH INCOME HAS BEEN MADE THE SUBJECT OF EXCESSIVE RELIEF UNDER THIS ACT ; OR ( IV ) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED.] [ EXPLANATION 3.FOR THE PURPOSE OF ASSESSMENT OR REASSESSMENT UNDER THIS SECTION, THE ASSESSING OFFI CER MAY ASSESS OR REASSESS THE INCOME IN RESPECT OF ANY ISSUE, WHICH HAS ESCAPED ASSESSMENT, AND SUCH ISSUE COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF T HE PROCEEDINGS UNDER THIS SECTION, NOTWITHSTANDING THA T THE ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 16 REASONS FOR SUCH ISSUE HAVE NOT BEEN INCLUDED IN TH E REASONS RECORDED UNDER SUB-SECTION (2) OF SECTION 148 . ] 7.1 SECTION 149 OF THE IT ACT READS AS UNDER: TIME LIMIT FOR NOTICE 149. [(1) NO NOTICE UNDER SECTION 148 SHALL BE ISSUED FOR THE RELEVANT ASSESSMENT YEAR, [(A) IF FOUR YEARS HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS THE CASE FALLS UND ER CLAUSE (B); (B) IF FOUR YEARS, BUT NOT MORE THAN SIX YEARS, HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEA R UNLESS THE INCOME CHARGEABLE TO TAX WHICH HAS ESCAP ED ASSESSMENT AMOUNTS TO OR IS LIKELY TO AMOUNT TO ONE LAKH RUPEES OR MORE FOR THAT YEAR.] EXPLANATION.IN DETERMINING INCOME CHARGEABLE TO TA X WHICH HAS ESCAPED ASSESSMENT FOR THE PURPOSES OF TH IS SUB-SECTION, THE PROVISIONS OF EXPLANATION 2 OF SECTION 147 SHALL APPLY AS THEY APPLY FOR THE PURPOSES OF THAT SECTION.] (2) THE PROVISIONS OF SUB-SECTION (1) AS TO THE ISS UE OF NOTICE SHALL BE SUBJECT TO THE PROVISIONS OF SECTION 151 . (3) IF THE PERSON ON WHOM A NOTICE UNDER SECTION 148 IS TO BE SERVED IS A PERSON TREATED AS THE AGENT OF A NON - RESIDENT UNDER SECTION 163 AND THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION TO BE MADE IN PURSUAN CE OF THE NOTICE IS TO BE MADE ON HIM AS THE AGENT OF SUCH NON-RESIDENT, THE NOTICE SHALL NOT BE ISSUED AFTER THE EXPIRY OF A PERIOD OF TWO YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 17 7.2 SECTION 150 OF THE IT ACT READS AS UNDER: PROVISION FOR CASES WHERE ASSESSMENT IS IN PURSUANCE OF AN ORDER ON APPEAL, ETC. 150. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 149 , THE NOTICE UNDER SECTION 148 MAY BE ISSUED AT ANY TIME FOR THE PURPOSE OF MAKING AN ASSESSMENT OR REASSESSMENT OR RECOMPUTATION IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED I N AN ORDER PASSED BY ANY AUTHORITY IN ANY PROCEEDING UNDER THI S ACT BY WAY OF APPEAL, REFERENCE OR REVISION [OR BY A CO URT IN ANY PROCEEDING UNDER ANY OTHER LAW]. (2) THE PROVISIONS OF SUB-SECTION (1) SHALL NOT APP LY IN ANY CASE WHERE ANY SUCH ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS IS REFERRED TO IN THAT SUB-SECTION RELATES TO AN ASSESSMENT YEAR IN RESPECT OF WHICH AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION COULD NOT HAVE BEEN MADE AT THE TIME THE ORDER WHICH WAS THE SUBJECT-MATTER OF THE APPEAL, REFERENCE OR REVISION , AS THE CASE MAY BE, WAS MADE BY REASON OF ANY OTHER PROVIS ION LIMITING THE TIME WITHIN WHICH ANY ACTION FOR ASSES SMENT, REASSESSMENT OR RECOMPUTATION MAY BE TAKEN. 7.3 THE AO RECORDED THE REASONS FOR REOPENING OF TH E ASSESSMENT FOR ASSESSMENT YEAR UNDER APPEAL I.E. 1994-95, COPY OF WHICH IS FILED AT PAGES 13, 14 AND 15 OF THE PAPER BOOK THROUGH WH ICH THE AO REOPENED THE ASSESSMENT BY RECORDING THE REASONS ON 14-3-2007 AND THE SAME READS AS UNDER: ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 18 A.Y.: 1994-95 REASONS RECORDED U/S.147 RWS 150 OF THE ACT, 1961 THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 29/11/1994 DECLARING NIL INCOME AFTER SETTING OFF O F THE BROUGHT FORWARD LOSSES. THE ASSESSMENT WAS COMPLETE D U/S. 143(3) OF THE ACT VIDE ORDER DTD. 31/3/1997 DETERMINING TOTAL INCOME AT RS.1,46,06,440/- 2. IN THIS CASE, ON THE BASIS OF ENTRIES MADE IN TH E BOOKS OF ACCOUNT FOR THE A/C. YEAR RELEVANT TO A. Y . 1992- 93 THE ASSESSEE COMPANY RECEIVED RS.80 LACS FOR THE MARKETING RIGHTS FOR A PERIOD OF 5 YEARS GIVEN TO M /S. NEUMETIC MARKETIING CO. THE SAID AMOUNT WAS BROUGHT TO TAX AS REVENUE RECEIPT IN THE HANDS OF THE ASSESSEE FOR THE A. Y. 1992-93. THE ASSESSEE CONTESTED THE ABOVE ADDITION IN APPEAL BEFORE THE CIT(A). 3. THE CIT(A) DELETED THE ABOVE ADDITION FOR THE REASONS CONTAINED IN PARA 8 OF HIS ORDER AS UNDER: 8. I HAVE CONSIDERED THE FACTS AND GONE THROUGH THE COPIES OF AGREEMENTS. THE AGREEMENT WITH VADILAL ENTERPRISE LTD. MENTIONS THAT THE AGREEMENT FOR THE PERIOD OF THREE YEARS FROM 1.1.1990. IN PARA.2 OF AGREEMENT WITH NEUMATIC MARKETING CO., IT IS MENTIONED THAT THE AGREEMENT SHALL COME INTO FORCE FROM 31.12.92 OR FROM THE DAT E AS MAY BE AGREED BY THE ASSESSEE AND AS REQUESTED BY VADILAL ENTERPRISE LIMITED TO ENABLE T O HANDOVER THE BUSINESS TO NEUMATIC MARKETING CO. AFTER COMPLETION OF ALL LEGAL STATUTORY FORMALITIES AND SHALL REMAIN IN FORCE FOR A PERIOD OF FIVE YEARS FR OM THE EFFECTIVE DATE. IT IS, THEREFORE, CLEAR THAT TH E ASSESSEE WILL RECEIVE RS.80 LACS FOR GIVING THE MARKETING RIGHTS AFTER THE AGREEMENT COMES INTO FORCE AND VADILAL ENTERPRISE LTD. HANDS OVER THE RELEVANT PAPERS AND COMPLETES THE FORMALITIES FOR THE TRANSFER OF BUSINESS TO NEUMATIC MARKETING CO. ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 19 SUBSEQUENTLY, THE AGREEMENT WITH VADILAL ENTERPRISE LTD. WAS TO EXPIRE ON 31.12.92 BUT IT WA S FURTHER EXTENDED FOR A PERIOD OF 3 MONTHS I.E. UP T O 31.3.93. THE AGREEMENT WITH NEUMATIC MARKETING CO., THEREFORE, NEVER CAME INTO OPERATION IN THIS ACCOUNT YEAR. NO INCOME ACCRUED TO THE ASSESSEE FOR SALE OF RIGHTS IN THIS YEAR. I ALSO FIND THAT T HE AGREEMENT WAS RENEWED WITH NEUMATIC MARKETING PVT. LTD. WHICH CAME INTO OPERATION FROM 1.4.93 AND WHICH, IN FACT, TOOK OVER THE BUSINESS FROM VADILAL ENTERPRISE LTD. NO MONEY WAS RECEIVED BY THE ASSESSEE IN THIS YEAR FROM NEUMATIC MARKETING CO., A FIRM. I, THEREFORE, AGREE WITH THE LEARNED AUTHORIZED REPRESENTATIVE THAT THE INCOME HAS NEITHER ACCRUED NOR RECEIVED BY THE ASSESSEE IN THI S ACCOUNTING YEAR. THE ENTRIES MADE IN THE BOOKS ARE NOT CORRECT AND THE DEDUCTION FOR RS.80 LACS SHOULD BE ALLOWED TO THE ASSESSEE AS WRONGLY SHOWN IN THE RETURN. 4. THE ORDER OF THE CIT(A) WAS CHALLENGED BY THE DEPARTMENT BEFORE ITAT. THE ITAT, AHMEDABAD BENCH DECIDED THE APPEAL OF THE DEPARTMENT IN ITA NO.2928/AHD/1996 DTD. 24/3/04, WHEREIN THE FINDING OF THE LEARNED CIT(A) AS ABOVE WAS CONFIRMED. 5. THE DEPARTMENT APPEALED AGAINST THE SAID ORDER O F THE TRIBUNAL IN THE HIGH COURT OF GUJARAT BEING TAX APPEAL NO.380 OF 2005. THE HONBLE HIGH COURT HAS REJECTED THE TAX APPEAL OF THE DEPARTMENT VIDE ITS ORDER DTD. 14/11/05. 6. THE DECISION OF THE APPELLATE AUTHORITIES THAT T HE ASSESSEE HAS NOT RECEIVED THE AMOUNT OF RS.80 LACS IN THE A. Y. 1992-93, THOUGH ENTRY WAS MADE TO THE ABO VE EFFECT HAS BEEN ACCEPTED BY THE DEPARTMENT BY NOT PREFERRING SLP AGAINST THE ORDER OF THE HONBLE HIG H COURT DTD. 14/11/05. ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 20 7. IN VIEW OF THE ABOVE FINDING OF THE APPELLATE AUTHORITIES BASED ON THE DECISION OF THE SUPREME CO URT IN THE CASE OF KEDARNATH JUTE MANUFACTURING CO. LTD. 8 2 ITR 363 AND THE HONBLE GUJARAT HIGH COURT DECISION REP ORTED IN 32 ITR 377, THE INCOME CHARGEABLE TO TAX FOR THE A. Y. 1994-95 AMOUNTING TO RS.80 LACS HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147. I THEREFORE, DIRECT TO ISSUE NOTICE U/S. 148 OF THE A CT RWS 150 OF THE ACT. 7.4 COPY OF THE ORDER OF THE LEARNED CIT(A) IN ASSE SSMENT YEAR 1992-93 HAS BEEN FILED IN THE PAPER BOOK IN WHICH I N PARA 8 THE LEARNED CIT(A) HELD THAT HE AGREED WITH THE AR THAT THE INCOME HAS NEITHER ACCRUED NOR RECEIVED BY THE ASSESSEE IN THI S ACCOUNTING YEAR. SUCH FINDING OF THE LEARNED CIT(A) HAVE BEEN INCORP ORATED BY THE AO IN THE REASONS FOR REOPENING OF THE ASSESSMENT (SUP RA) WHICH WOULD SHOW THAT THE LEARNED CIT(A) HAS NOT GIVEN ANY FIND ING OR DIRECTION THAT THE INCOME IS TAXABLE IN THE ASSESSMENT YEAR U NDER APPEAL I.E. 1994-95. WITH REGARD TO THE ISSUE WHETHER THE SAME RECEIPT IS CAPITAL RECEIPT OR REVENUE RECEIPT, THE LEARNED CIT(A) GAVE THE FINDINGS IN THE SAME ORDER IN PARA 14 AND 18 OF THE APPELLATE ORDE R WHICH READ AS UNDER: 14. REGARDING THE INCOME AS HELD BY THE ASSESSING OFFICER, I FIND THAT THE RECEIPT IS NOT COVERED UND ER THE HEAD BUSINESS INCOME UNDER SECTION 28(2) OF THE A CT. IT IS NOT A RECEIPT IN THE ORDINARY COURSE OF BUSINESS BECAUSE THE SELLING OF RIGHTS IS NOT THE BUSINESS O F THE ASSESSEE AND THE ASSESSEE IS ENGAGED IN MANUFACTURE AND SALE OF PARTICULAR ITEMS. THE SELLING OF TERRIT ORIES IS A CAPITAL ASSET LIKE TENANCY RIGHTS, ROUTE PERMITS, G OODWILL AND CANNOT BE COVERED UNDER THE BUSINESS INCOME. I ALSO FIND THAT THE CONDITION FOR TERMINATION OF RIGHTS, SALE OF BUSINESS, CASH COMPENSATION FOR EXPORT, WILL NOT CO VERED ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 21 SUCH A RECEIPT AS BUSINESS INCOME. IT CAN ONLY BE C OVERED UNDER THE CAPITAL ASSET WHICH IS INTANGIBLE IN NATU RE. 18. IN VIEW OF THE ABOVE DISCUSSION, I FIND THAT TH E ABOVE TRANSFER OF TERRITORIAL RIGHTS, IS NOT COVERE D AS A CAPITAL ASSET UNDER SECTION 2(14) OF THE ACT. IF TH E CONCERN ASSET DOES NOT FALL IN THIS DEFINITION ON THE DATE OF TRANSFER, NO CAPITAL GAIN CAN BE LEVIED. SUCH A FINDING HAS B EEN GIVEN BY THE GUJARAT HIGH COURT IN THE CASE OF MRS. MAMTA NARROTTAMDAS (162 ITR 365) AND THE GUJARAT HI GH COURT IN THE CASE OF JITENDRA RAMNIKLAL (162 ITR 37 1). IN VIEW OF THESE JUDGMENTS, I HOLD THAT THE TRANSACTIO N UNDER CONSIDERATION, IS NOT COVERED AS BUSINESS INCOME OR A CAPITAL ASSET AND NOT CHARGEABLE TO INCOME-TAX. THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE DEDUCTIO N OF RS.80 LACS AS CLAIMED BY THE ASSESSEE. THE LEARNED CIT(A) AFTER GIVING THIS FINDING THAT T HE RECEIPT IS NOT REVENUE IN NATURE AND IS CAPITAL RECEIPT ALSO CONSI DERED WHETHER IT IS TAXABLE AS CAPITAL GAIN AND ULTIMATELY HELD THAT EV EN NO CAPITAL GAIN ARISES ON SUCH A TRANSACTION AND ULTIMATELY IN PARA 18 OF THE APPELLATE ORDER HELD THAT THE TRANSACTIONS UNDER CONSIDERATIO N IS NOT COVERED AS BUSINESS INCOME IT BEING CAPITAL ASSET AND NOT CHAR GEABLE TO INCOME TAX. THE AO WAS, THEREFORE, DIRECTED TO ALLOW DEDUC TION OF RS. 80 LACS AS CLAIMED BY THE ASSESSEE. THE AO IN THE ASSESSMEN T YEAR UNDER APPEAL NOTED THIS FACT THAT THE LEARNED CIT(A) HELD THAT THE RECEIPT IS NOT REVENUE IN NATURE AND IS A CAPITAL RECEIPT. THE LEARNED CIT(A) ALSO NOTED THE SAME FACTS IN THE IMPUGNED ORDER. DE SPITE THE ABOVE FINDINGS OF THE LEARNED CIT(A) THAT THE RECEIPT IN QUESTION IS CAPITAL RECEIPT, THOUGH THE REVENUE PREFERRED APPEAL BEFOR E THE TRIBUNAL IN ASSESSMENT YEAR 1992-93, ACCORDING TO THE LEARNED D R THE TRIBUNAL HAS NOT GIVEN ANY FINDING WHETHER THE RECEIPT IN QU ESTION IS REVENUE ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 22 RECEIPT OR CAPITAL RECEIPT WOULD ESTABLISH THAT THE FINDING OF FACT THAT IT IS CAPITAL RECEIPT HAS REACHED FINALITY. IT WOULD, THEREFORE, PROVE THAT THE DEPARTMENT HAS ACCEPTED THE FINDINGS OF THE LEA RNED CIT(A) THAT THE RECEIPT IN QUESTION IS CAPITAL RECEIPT IN NATUR E. EVEN ON THE END OF THE OPERATIVE PORTION OF THE ORDER OF THE TRIBUNAL, THE TRIBUNAL HAS GIVEN ITS OPINION IN PARA 8 THAT THE AGREEMENT IN Q UESTION COMMENCED FROM 01-04-1993 AND NO RECEIPT EITHER WAS RECEIVED BY THE ASSESSEE OR ACCRUED TO IT DURING THE ACCOUNTING PERIOD RELEVANT TO THIS YEAR. THESE FINDINGS OF THE TRIBUNAL WOULD ALS O SHOW THAT NO FINDING OR DIRECTIONS HAVE BEEN ISSUED THAT SUCH AN INCOME IS TAXABLE IN THE ASSESSMENT YEAR 1994-95 UNDER APPEAL. THE S AME ARE THE FINDINGS OF THE HONBLE GUJARAT HIGH COURT IN WHICH DEPARTMENTAL APPEAL WAS DISMISSED HOLDING THE ABSENCE OF ANY SUB STANTIAL QUESTION OF LAW. IT WAS NOTED BY THE HONBLE GUJARA T HIGH COURT THAT THE AGREEMENT HAD NEVER COME INTO OPERATION IN THE ACCOUNTING YEAR UNDER APPEAL. IT WOULD ALSO SHOW THAT THE HONBLE H IGH COURT HAS NOT GIVEN ANY FINDING OR DIRECTION IN THE ORDER THAT SU CH INCOME IS TAXABLE IN THE ASSESSMENT YEAR UNDER APPEAL (1994-95). WE M AY ALSO NOTE HERE THAT THE REVENUE RAISED TWO QUESTIONS OF LAW B EFORE THE HONBLE HIGH COURT CHALLENGING THE ACCRUAL OF THE RECEIPT I N QUESTION IN THE ASSESSMENT YEAR UNDER APPEAL AND WHETHER THE RECEIP T WAS CAPITAL IN NATURE. IT WOULD SHOW THAT WHEN THE TRIBUNAL AND TH E HONBLE HIGH COURT DISMISSED THE APPEALS OF THE REVENUE, THE ORD ER OF THE LEARNED CIT(A) BECAME FINAL ON FACTS THAT THE RECEIPT IN QU ESTION IS CAPITAL RECEIPT. THE ORDER OF THE LEARNED CIT(A) HAS THUS R EACHED FINALITY BETWEEN BOTH THE PARTIES AND IS BINDING UPON THE RE VENUE DEPARTMENT. CONSIDERING THE ABOVE FACTS, IT IS CLEA R THAT THE REVENUE ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 23 DID NOT TAKE ANY STEPS BEFORE THE TRIBUNAL FOR MAKI NG AMENDMENT IN THE ORDER WITH REGARD TO WHETHER THE RECEIPT IN QUE STION IS REVENUE RECEIPT OR CAPITAL RECEIPT. THE ESSENTIAL PRINCIPLE AS TO THE RULE OF FINALITY OF AN ASSESSMENT IS THAT THE AO CANNOT CHA NGE HIS MOOD AND TRY TO REOPEN THE CLOSED STATE OF AFFAIRS. RULE OF FINALITY IS RULE OF PRUDENCE. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS RAO THAKUR NARAYAN SINGH 56 ITR 234 HELD AS UNDER: FROM A REASSESSMENT FOR THE ASSESSMENT YEAR 1942- 43, MADE IN JULY, 1945, BRINGING TO TAX CERTAIN FOR EST INCOME AND INTEREST INCOME, THE ASSESSEE PREFERRED AN APPEAL TO THE APPELLATE TRIBUNAL OBJECTING TO TH E INCOME-TAX OFFICERS JURISDICTION TO INITIATE REASSESSMENT PROCEEDING IN RESPECT OF THE FOREST INCOME ON THE GROUND THAT HE HAD KNOWLEDGE OF SUCH INCOME WHEN THE ORIGINAL ASSESSMENT WAS MADE. THE APPELLATE TRIBUNAL UPHELD HIS CONTENTION BUT BY MISTAKE SET ASIDE THE ENTIRE REASSESSMENT ORDER AND RESTORED THE ORIGINAL ASSESSMENT ORDER. NO STEPS WERE TAKEN UNDER SECTION 35 TO RECTIFY THE MISTAKE; NOR WAS ANY REFERENCE TO THE HIGH COURT SOUGHT AGAINST THE ORDER OF THE APPELLATE TRIBUNAL. THEREAFTER, IN 1950, THE INCOME-TAX OFFICER INITIAT ED FRESH REASSESSMENT PROCEEDINGS UNDER SECTION 34 WITH RESPECT TO THE INTEREST INCOME AND MADE A FRES H REASSESSMENT ORDER FOR THE YEAR 1942-43, TO INCLUDE THE INTEREST INCOME: HELD, THAT AS THE ORDER OF THE APPELLATE TRIBUNAL BECAME FINAL, THE FINDING OF THE TRIBUNAL, EVEN THO UGH BY MISTAKE, THAT THE OFFICER COULD NOT INITIATE REASSESSMENT PROCEEDINGS IN RESPECT OF THE INTEREST INCOME ALSO, WAS BINDING ON THE INCOME-TAX OFFICER AND HE COULD NOT REOPEN THE ASSESSMENT OVER AGAIN TO INCLUDE THE INTEREST INCOME. ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 24 IT WAS NOT THE INTENTION OF THE LEGISLATURE BY AMENDING SECTION 34(1) IN 1948, TO ENABLE THE INCOM E- TAX OFFICER TO REOPEN FINAL DECISIONS MADE AGAINST THE REVENUE IN RESPECT OF QUESTION IF THAT DIRECTLY ARO SE FOR DECISION IN EARLIER PROCEEDINGS. IF THAT WERE N OT THE LEGAL POSITION IT WOULD RESULT IN PLACING AN UNRESTRICTED POWER OF REVIEW IN THE HANDS OF THE INCOME-TAX OFFICER TO GO BEHIND THE FINDINGS GIVEN BY A HIERARCHY OF TRIBUNALS AND EVEN THOSE OF THE HIG H COURT AND THE SUPREME COURT WITH HIS CHANGING MOODS. 8. CONSIDERING THE ABOVE DISCUSSIONS, IT IS CLEAR T HAT THE FINDING OF FACTS HAVE BECOME FINAL WITH REGARD TO THE RECEIPT IN QUESTION THAT IT IS CAPITAL RECEIPT. THEREFORE, THERE IS NO QUESTION OF THE ASSESSING OFFICER HAVING ANY REASON TO BELIEVE THAT ANY INCOM E, ON THE SAME ISSUE AND SAME FACTS, CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IN THE ASSESSMENT YEAR UNDER APPEAL. THE REOPENING OF THE ASSESSMENT IS INITIATED ON 14-3-2007 FOR ASSESSMENT YEAR 1994- 95 UNDER APPEAL AND ON THAT DAY THE REASSESSMENT PROCEEDINGS HAVE B ECOME TIME BARRED BECAUSE THE SAME HAVE BEEN INITIATED AFTER S IX YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR U/S 149 (1) (B) OF THE IT ACT. THEREFORE, THE PROVISIONS OF SECTION 150(2) OF THE IT ACT WOULD NOT APPLY TO SUCH A SITUATION. FURTHER, THERE WAS NO DI RECTION OR FINDING GIVEN IN ANY OF THE APPELLATE ORDERS FOR ASSESSMENT YEAR 1992-93 THAT SUCH INCOME IS TAXABLE IN THE ASSESSMENT YEAR UNDER APPEAL I.E. 1994-95. MERE REMARKS OR OBSERVATION BY THE AO FROM THE APPELLATE ORDERS CANNOT BE TAKEN AS A FINDING OR DIRECTION OF THE APPELLATE AUTHORITIES WITHIN THE MEANING OF SECTION 150 (1) O F THE IT ACT. THE LEARNED CIT(A) REFERRED TO EXPLANATION (2) TO SECTI ON 153 OF THE IT ACT IN ORDER TO COVER THE CASE U/S 150 (1) OF THE IT AC T. HOWEVER, HE HAS ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 25 FAILED TO NOTE THAT SECTION 153 OF THE IT ACT IS ME ANT FOR TIME LIMIT FOR COMPLETION OF ASSESSMENTS AND REASSESSMENTS, BUT TH E PROVISIONS OF SECTION 149 OF THE IT ACT ARE MEANT FOR TIME LIMIT FOR ISSUING THE NOTICE U/S 148 OF THE IT ACT. BOTH THESE PROVISIONS OPERAT E IN DIFFERENT FIELD I.E. FOR INITIATION OF REASSESSMENT PROCEEDINGS U/S 148 OF THE IT ACT AND TIME LIMIT FOR COMPLETION OF ASSESSMENTS AND RE ASSESSMENTS. WE MAY NOTE HERE THAT DESPITE THE LEARNED CIT(A) HAS G IVEN A SPECIFIC FINDING THAT THE RECEIPT IN QUESTION IS CAPITAL REC EIPT, RELIANCE ON EXPLANATION (2) TO SECTION 153 IS MISPLACED AND SUC H FINDING HAS REACHED FINALITY, THE AO CLEVERLY DID NOT REPRODUCE SUCH FINDINGS OF THE LEARNED CIT(A) IN PARA 14 AND 18 (SUPRA) IN THE REASONS RECORDED U/S 147 OF THE IT ACT. THESE FACTS WOULD SHOW THAT INITIATION OF REASSESSMENT PROCEEDINGS HAVE BEEN DONE ON NON-EXIS TING REASONS OTHERWISE THERE WAS NO REASON FOR THE AO TO NOTE TH AT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IT IS SET TLED LAW THAT NO PROCEEDINGS U/S 147 OF THE IT ACT CAN BE INITIATED IF GROUND FOR THE SAME DISAPPEAR OR INITIATION IS BASED ON NON-EXISTI NG FACTS. WE RELY UPON THE DECISION OF THE HONBLE PUNJAB & HARYANA H IGH COURT IN THE CASE OF ATLAS CYCLE INDUSTRIES 180 ITR 319 AND THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF SHRI RA M SINGH 306 ITR 343. ONCE THE LEARNED CIT(A) HAS GIVEN A FINDING TH AT SUCH A RECEIPT CANNOT BE TAXED BEING CAPITAL RECEIPT AND THE FINDI NG OF FACT HAS REACHED FINALITY, IT WOULD NOT MAKE IT REVENUE RECE IPT IN THE ASSESSMENT YEAR UNDER APPEAL. THEREFORE, REOPENING OF THE ASSESSMENT ON SUCH GROUND WHICH DOES NOT EXIST WOUL D NOT MAKE THE REOPENING OF THE ASSESSMENT VALID IN THE EYE OF LAW . ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 26 9. CONSIDERING THE FACTS AND CIRCUMSTANCES IN THE L IGHT OF THE DECISIONS NOTED ABOVE, WE ARE OF THE VIEW THAT NO F INDING OR DIRECTIONS HAVE BEEN ISSUED IN ASSESSMENT YEAR 1992-93 TO TAX THE SAME INCOME IN THE ASSESSMENT YEAR UNDER APPEAL WHICH IS ALSO INHERENTLY IMPOSSIBLE IN VIEW OF THE FINDINGS THAT IT IS CAPIT AL RECEIPT. THEREFORE, PROVISIONS OF SECTION 150 OF THE IT ACT WOULD NOT A PPLY IN THE CASE OF THE ASSESSEE AND SINCE THE REOPENING OF THE ASSESSM ENT IS MADE AFTER A PERIOD OF SIX YEARS FROM THE END OF THE ASS ESSMENT YEAR AS PER SECTION 149 OF THE IT ACT, THEREFORE, IT IS CLEARLY TIME BARRED. FURTHER, IT IS FINALLY DECIDED BETWEEN THE PARTIES THAT SUCH A RECEIPT IS A CAPITAL RECEIPT; THEREFORE, NO INCOME CHARGEABLE TO TAX WOU LD HAVE ESCAPED ASSESSMENT. CONSIDERING THE ABOVE FINDINGS, WE DO N OT FIND ANY JUSTIFICATION FOR INITIATION OF REASSESSMENT PROCEE DINGS. IN VIEW OF THE ABOVE FINDINGS, WE SET ASIDE THE ORDERS OF THE AUTH ORITIES BELOW AND QUASH THE REASSESSMENT PROCEEDINGS U/S 147 READ WIT H SECTION 150 OF THE IT ACT. RESULTANTLY, NO ADDITION OF RS.80 LA CS CAN BE MADE IN THE HANDS OF THE ASSESSEE. THE ADDITION IS ACCORDIN GLY DELETED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01-04-2011 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 01-04-2011 LAKSHMIKANT/- ITA NO.460/AHD/2009 VADILAL DAIRY INTERNATIONAL LTD. VS ACIT, CIR-8, AH MEDABAD 27 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD