SHASHI AGARWAL, MUMBAI V. DCIT CIR 3, THANE

ITA 4949/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8091 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 03-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHADR
• Assessee Lawyers: DR P DANIEL
• Keywords: Reopening of assessment; Depreciation; Rectification of order; Tangible material; Difference of opinion; Assessment record; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148; 144; 2; 139

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.4949/MUM/2016 ASSESSMENT YEAR: 2005-06 SHASHI AGARWAL, 203 DON FAB. ESTATE POKHRAN ROAD NO.1, UPAVAN, THANE, MAHARASHTRA-400606 / VS. DCIT, CIRCLE-3, ASHAR IT PARK, WAGLE INDL. ESTATE, THANE, MAHARASHTRA-400604 / ASSESSEE / REVENUE P.A. NO. AANPA9605J $ % & / ASSESSEE BY DR. P. DANIEL $ % & / REVENUE BY MS. N. HEMALATHA-DR / DATE OF HEARING 18/12/2017 & / DATE OF ORDER: 18/12/2017 & / O R D E R THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 17/06/2016 OF THE LD. FIRST APPELLATE AUTHORITY, TH ANE. THE FIRST GROUND RAISED BY THE ASSESSEE PERTAINS TO REO PENING OF ITA NO.4949/MUM/2016 SHASHI AGARWAL 2 ASSESSMENT U/S 147 R.W.S.148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), WITHOUT THERE BEING NO FAILU RE ON THE PART OF THE ASSESSEE IN DISCLOSING THE MATERIAL FAC TS. 2. DURING HEARING, DR. P. DANIEL, LD. COUNSEL FOR THE ASSESSEE, CONTENDED THAT THE MATERIAL FACTS WERE DU LY DISCLOSED BY THE ASSESSEE AND REOPENING WAS DONE BE YOND A PERIOD OF FOUR YEARS, WHICH IS NOT PERMISSIBLE. IT WAS EXPLAINED THAT THE ASSESSEE FILED THE RETURN OF INC OME ON 29/10/2005 ALONG WITH COPY OF ACCOUNTS, AUDIT REPOR T IN THE PRESCRIBED FORM 3CB AND 3CD AND THE ASSESSMENT WAS COMPLETED ON 31/03/2006 U/S 143(1) OF THE ACT. SUBSEQUENTLY, THE ASSESSMENT WAS COMPLETED U/S 143( 3) OF THE ACT AFTER THOROUGH SCRUTINY ON 15/11/2017 FOR W HICH MY ATTENTION WAS INVITED TO PAGES 62 TO 65 OF THE PAPE R BOOK. IT WAS CONTENDED THAT THEREAFTER NOTICE U/S 154/155 WA S ISSUED FOR RECTIFICATION OF MISTAKE ON 16/06/2009, WHICH WAS DROPPED/LAPSED AND THEREAFTER NOTICE U/S 148 OF THE ACT WAS ISSUED ON 10/02/2012 AFTER A LAPSE OF FOUR YEARS (P AGE-8 OF THE PAPER BOOK). MY ATTENTION WAS ALSO INVITED TO THE REASONS RECORDED (PAGE-9 OF THE PAPER BOOK) BY FURTHER INVI TING MY ITA NO.4949/MUM/2016 SHASHI AGARWAL 3 ATTENTION TO PARA-4 OF THE ASSESSMENT ORDER. IT WAS CONTENDED THAT THE DEPRECIATION ALLOWED TO THE ASSESSEE DURIN G REGULAR ASSESSMENT WAS TO BE WITHDRAWN FOR WHICH REOPENING WAS ISSUED. PLEA WAS ALSO RAISED THAT THERE WAS NO SANC TION OF THE APPROPRIATE AUTHORITY, THEREFORE, FIRST PROVISO TO SECTION 147 OF THE ACT WAS VIOLATED ALONG WITH FIRST PROVISO TO SECTION 151 (1) OF THE ACT, THEREFORE, THE ASSESSMENT IS INVALI D. HOWEVER, IT WAS CONTENDED THAT THE APPEAL OF THE ASSESSEE MAY B E ALLOWED ON JURISDICTIONAL ISSUE ALONE FOR WHICH REL IANCE WAS PLACED UPON THE DECISION FROM HON'BLE JURISDICTIONA L HIGH COURT IN TITANOR COMPONENTS LTD. VS ACIT (2011) 60 DTR (BOM.) 273, ORDER DATED 09/06/2011 AND ANOTHER DECI SION FROM HON'BLE APEX COURT IN CIT VS FORAMER FRANCE (2 64 ITR 566)(SC). HOWEVER, THE LD. DR, MS. N. HEMLATHA, DE FENDED THE REOPENING BY PLACING RELIANCE UPON THE DECISION FROM HON'BLE BOMBAY HIGH COURT IN THE CASE OF DR. AMINS PATHOLOGY LABORATORY VS JCIT (2001) 252 ITR 673 (BO M.). THE LD. COUNSEL FOR THE ASSESSEE, IN REPLY. CONTEND ED THAT THE DECISION CITED BY THE ASSESSEE IS OF LATER DATE I.E . 2011, WHEREAS, THE CASE CITED BY LD. DR IS OF EARLIER DAT E I.E. 2001, THEREFORE, THE CASE CITED BY THE ASSESSEE WILL PREV AIL. ON A ITA NO.4949/MUM/2016 SHASHI AGARWAL 4 QUESTIONING BY THE BENCH WHETHER THE REOPENING WAS MADE BEYOND A PERIOD OF FOUR YEARS, THE LD. DR FAIRLY AG REED THAT IT WAS DONE BEYOND A PERIOD OF FOUR YEARS. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE WAS ENGAGED IN THE BUSINESS O F MANUFACTURING OF CORRUGATED BOXES AND EDUCATION SER VICES, DECLARED INCOME OF RS.3,33,725/- IN HIS RETURN FOR THE IMPUGNED ASSESSMENT YEAR I.E. 2005-06 ON 29/10/2005 . SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS FRAMED U/S 143(3) O F THE ACT ON 15/11/2007 AT AN INCOME OF RS.3,86,690/-. N OTICE U/S 148 OF THE ACT WAS ISSUED ON 10/02/2012 FOR REO PENING THE ASSESSMENT OF ASSESSMENT YEAR 2005-06 AFTER REC ORDING THE REASONS. IN RESPONSE TO THE SAME, THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FILED WRITTEN SUBMISSIONS. THE ASSESSEE VIDE LETTER DATED 24/02/2 012 SUBMITTED RETURN OF INCOME ALONG WITH TAX AUDIT REP ORT BY STATING THAT THE RETURN FILED ON 29/10/2005 MAY BE TREATED TO BE RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF TH E ACT. THE ITA NO.4949/MUM/2016 SHASHI AGARWAL 5 ASSESSEE WAS ALSO PROVIDED REASONS OF REOPENING VID E LETTER DATED 24/05/2012. BEFORE ADVERTING FURTHER, I NOTE THAT ON 16/06/2009, NOTICE U/S 154/155 OF THE ACT WAS ISSUE D TO THE ASSESSEE AS PER WHICH, THE MISTAKE WAS PROPOSED TO BE RECTIFIED, WHEREIN, ALSO, IT HAS BEEN MENTIONED/OBS ERVED (PAGE-7 OF THE PAPER BOOK) AS UNDER:- IN THIS CASE, ASSESSMENT U/S 143(3) FOR ASSESSMENT YEAR 2005-06 WAS COMPLETED ON 15/11/2007 AND DEMAND OF RS.19,329/- WAS RAISED. IN RESPECT OF THREE ESSS PACKAGING, IT IS OBSERVED THAT THE DEPRECIATION CLAIMED ON FIXED ASSET IS RS.7,07,384/ - AND OUT OF THAT RS.6,67,265/- IS IN RESPECT OF PLAN T & MACHINERY AND WEIGHING SCALE. HOWEVER, THE WDV OF THE PLANT & MACHINERY AND WEIGHING SCALE IS NIL AS ON 31/03/2005, THE DEPRECIATION CLAIMED OF RS.6,67,265/- APPEARS TO BE WRONGLY CLAIMED AND NEEDS TO BE DISALLOWED. SIMILARLY, IN RESPECT OF AGARWAL SERVICES, THE DEPRECIATION CLAIMED OF RS.5,63,193, WHICH APPEARS TO BE CLAIMED IN EXCESS TO THE TUNE OF RS.32,785/-, THE SAME NEEDS TO BE DISALLOWED TO THAT EXTENT. 2.2. AS CLAIMED BY THE LD. COUNSEL FOR THE ASSESS EE, NO DECISION WAS TAKEN ON THE NOTICE ISSUED U/S 154/155 OF THE ACT. THEREAFTER, NOTICE U/S 148 OF THE ACT DATED 1 0/02/2012 WAS ISSUED TO THE ASSESSEE (PAGE-8 OF THE PAPER BOO K). AT PAGE-9 OF THE PAPER BOOK, THERE IS MENTION OF REOPE NING OF ASSESSMENT/NOTICE ISSUED U/S 148 (DATED 24/05/2012) AS PER WHICH, IT HAS BEEN MENTIONED THAT AS PER RECORD S OF THIS ITA NO.4949/MUM/2016 SHASHI AGARWAL 6 OFFICE, AND DEPRECIATION IN EXCESS OF RS.32,785/- H AS BEEN CLAIMED. THERE IS NO DISPUTE THAT THE ASSESSEE FILE D THE RETURN ON 29/10/2005 (PAGE-10 OF THE PAPER BOOK) AS IS EVI DENT FROM THE MATERIAL AVAILABLE ON RECORD. AS FAIRLY AD MITTED BY THE LD. DR, THE REOPENING WAS DONE BEYOND A PERIOD OF FOUR YEARS, THEREFORE, IT IS MY BOUNDED DUTY TO ANALYZE SECTION 147 OF THE ACT ALSO, WHICH IS REPRODUCED HEREUNDER:- '147. INCOME ESCAPING ASSESSMENT.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 REASSE SS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH H AS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENT LY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION, OR RE -COMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALL OWANCE, AS THE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERNED (HER EAFTER IN THIS SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS T HE RELEVANT ASSESSMENT YEAR) : PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE R ELEVANT ASSESSMENT YEAR, NO ACTION SHALL BE TAKEN UNDER THI S SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVA NT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAP ED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF TH E FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SEC TION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB- SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATE RIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. EXPLANATION 1.PRODUCTION BEFORE THE ASSESSING OFFI CER OF ACCOUNT BOOKS OR OTHER EVIDENCE FROM WHICH MATERIAL EVIDENC E COULD WITH DUE DILIGENCE HAVE BEEN DISCOVERED BY THE ASSESSING OFFICER WILL NOT NECESSARILY AMOUNT TO DISCLOSURE WITHIN THE MEA NING OF THE FORE GOING PROVISO. EXPLANATION 2.FOR THE PURPOSES OF THIS SECTION, TH E FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, NAMELY : ITA NO.4949/MUM/2016 SHASHI AGARWAL 7 (A) WHERE NO RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE ALTHOUGH HIS TOTAL INCOME OR THE TOTAL INCOME OF AN Y OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DU RING THE PREVIOUS YEAR EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARG EABLE 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 B Y THE ASSESSING OFFICER THAT THE ASSESSEE HAS UNDERSTATED THE INCOME OR HAS CLAIMED EXCESSIVE LOSS, DEDUCTION, ALLOWANCE OR RELIEF IN THE RETURN ; (C) WHERE AN ASSESSMENT HAS BEEN MADE, BUT (I) INCOME CHARGEABLE TO TAX HAS BEEN UNDER ASSESSE D ; OR (II) SUCH INCOME HAS BEEN ASSESSED AT TOO LOW A RAT E ; OR (III) SUCH INCOME HAS BEEN MADE THE SUBJECT OF EXCE SSIVE RELIEF UNDER THIS ACT ; OR (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR AN Y OTHER ALLOW ANCE UNDER THIS ACT HAS BEEN COMPUTED. EXPLANATION 3.FOR THE PURPOSE OF ASSESSMENT OR REA SSESSMENT UNDER THIS SECTION, THE ASSESSING OFFICER MAY ASSES S OR REASSESS THE INCOME IN RESPECT OF ANY ISSUE, WHICH HAS ESCAP ED ASSESSMENT, AND SUCH ISSUE COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION, NOTWITHSTANDING THAT THE REASONS FOR SUCH ISSUE HAVE NOT BEEN INCLUDED IN TH E REASONS RECORDED UNDER SUB- SECTION (2) OF SECTION 148.' 2.3. IF THE AFORESAID PROVISION OF THE ACT IS ANAL YZED, I AM OF THE VIEW THAT FOR REOPENING AN ASSESSMENT MAD E UNDER SECTION 143(3) OF THE ACT, THE FOLLOWING CONDITIONS ARE REQUIRED TO BE SATISFIED : (I) THE ASSESSING OFFICER MUST FORM A TENTATIVE OR PRIMA FACIE OPINION ON THE BASIS OF MATERIAL THAT THERE IS UNDE RASSESSMENT OR ESCAPEMENT OF INCOME ; (II) HE MUST RECORD THE PRIMA FACIE OPINION INTO WR ITING ; ITA NO.4949/MUM/2016 SHASHI AGARWAL 8 (III) THE OPINION FORMED IS SUBJECTIVE BUT THE REAS ONS RECORDED OR THE INFORMATION AVAILABLE ON RECORD MUST SHOW TH AT THE OPINION IS NOT A MERE SUSPICION. (IV) REASONS RECORDED AND/OR THE DOCUMENTS AVAILAB LE ON RECORD MUST SHOW A NEXUS OR THAT IN FACT THEY ARE G ERMANE AND RELEVANT TO THE SUBJECTIVE OPINION FORMED BY THE AS SESSING OFFICER REGARDING ESCAPEMENT OF INCOME. (V) IN CASES WHERE THE FIRST PROVISO APPLIES, THERE IS AN ADDITIONAL REQUIREMENT THAT THERE SHOULD BE FAILURE OR OMISSION ON THE PART OF THE ASSESSEE IN DISCLOSING FULL AND TRUE MATERIAL FACTS. THE EXPLANATION TO THE SECTION STIPULATES TH AT MERE PRODUCTION OF BOOKS OF ACCOUNT OR OTHER DOCUMENTS F ROM WHICH THE ASSESSING OFFICER COULD HAVE, WITH DUE DILIGENC E, INFERRED MATERIAL FACTS, DOES NOT AMOUNT TO 'FULL AND TRUE D ISCLOSURE OF MATERIAL FACTS' (THE PROVISO IS NOT APPLICABLE WHER E REASONS TO BELIEVE FOR ISSUE OF NOTICE ARE RECORDED AND NOTICE IS ISSUED WITHIN FOUR YEARS FROM THE END OF ASSESSMENT YEAR). 2.4. THE TERM AND FACETS OF THE TERM 'CHANGE OF OPINION'. THE EXPRESSION 'CHANGE OF OPINION' POSTUL ATES FORMATION OF OPINION AND THEN A CHANGE THEREOF. IN THE CONTEXT OF SECTION 147 OF THE ACT IT IMPLIES THAT T HE ASSESSING OFFICER SHOULD HAVE FORMED AN OPINION AT THE FIRST INSTANCE, I.E., IN THE PROCEEDINGS UNDER SECTION 143(3) AND N OW BY INITIATION OF THE REASSESSMENT PROCEEDING, THE ASSE SSING OFFICER PROPOSES OR WANTS TO TAKE A DIFFERENT VIEW. 2.5. THE WORD 'OPINION' IS DERIVED FROM THE LATIN WORD 'OPINARI' WHICH MEANS 'TO BELIEVE', 'TO THINK'. THE WORD 'OPINION' AS PER THE BLACK'S LAW DICTIONARY MEANS A STATEMENT BY A JUDGE OR A COURT OF A DECISION REACH ED BY HIM ITA NO.4949/MUM/2016 SHASHI AGARWAL 9 INCORPORATING CAUSE TRIED OR ARGUED BEFORE THEM, EX POUNDING THE LAW AS APPLIED TO THE CASE AND, DETAILING THE R EASONS UPON WHICH THE JUDGMENT IS BASED. ADVANCED LAW LEXICON B Y P. RAMANATHA AIYAR (THIRD EDITION) EXPLAINS THE TERM ' OPINION' TO MEAN 'SOMETHING MORE THAN MERE RETAINING OF GOSS IP OR HEARSAY ; IT MEANS JUDGMENT OR BELIEF, THAT IS, A B ELIEF OR A CONVICTION RESULTING FROM WHAT ONE THINKS ON A PART ICULAR QUESTION . . . AN OPINION IS A CONVICTION BASED ON TESTIMONY . . . THEY ARE AS A RESULT OF READING, EXPERIENCE AND R EFLECTION'. 2.6. IN THE CONTEXT OF ASSESSMENT PROCEEDINGS, IT MEANS FORMATION OF BELIEF BY AN ASSESSING OFFICER R ESULTING FROM WHAT HE THINKS ON A PARTICULAR QUESTION. IT IS A RESULT OF UNDERSTANDING, EXPERIENCE AND REFLECTION TO USE THE WORDS IN LAW LEXICON BY P. RAMANATHA AIYAR. THE QUESTION OF CHANGE OF OPINION ARISE WHEN AN ASSESSING OFFICER FORMS AN OPINION AND DECIDES NOT TO MAKE AN ADDITION OR HOLDS THAT T HE ASSESSEE IS CORRECT AND ACCEPTS HIS POSITION OR STA ND. IN HARI IRON TRADING CO. V. CIT [2003] 263 ITR 437 (P&H), A DIVISION BENCH OF THE HONBLE PUNJAB AND HARYANA HIGH COURT OBSERVED THAT AN ASSESSEE HAS NO CONTROL OVER THE W AY AN ITA NO.4949/MUM/2016 SHASHI AGARWAL 10 ASSESSMENT ORDER IS DRAFTED. IT WAS OBSERVED THAT G ENERALLY, THE ISSUES WHICH ARE ACCEPTED BY THE ASSESSING OFFI CER DO NOT FIND MENTION IN THE ASSESSMENT ORDER AND ONLY SUCH POINTS ARE TAKEN NOTE OF ON WHICH THE ASSESSEE'S EXPLANATI ONS ARE REJECTED AND ADDITIONS/DISALLOWANCES ARE MADE. APP LYING THE PRINCIPLES LAID DOWN BY THE FULL BENCH OF THIS COUR T AS WELL AS THE OBSERVATIONS OF THE PUNJAB AND HARYANA HIGH COU RT, I FIND THAT IF THE ENTIRE MATERIAL HAD BEEN PLACED BY THE ASSESSED BEFORE THE ASSESSING OFFICER AT THE TIME W HEN THE ORIGINAL ASSESSMENT WAS MADE AND THE ASSESSING OFFI CER APPLIED HIS MIND TO THAT MATERIAL AND ACCEPTED THE VIEW CANVASSED BY THE ASSESSEE, THEN MERELY BECAUSE HE D ID EXPRESS THIS IN THE ASSESSMENT ORDER, THAT BY ITSEL F WOULD NOT GIVE HIM A GROUND TO CONCLUDE THAT INCOME HAS ESCAP ED ASSESSMENT AND, THEREFORE, THE ASSESSMENT NEEDED TO BE REOPENED. ON THE OTHER HAND, IF THE ASSESSING OFFIC ER DID NOT APPLY HIS MIND AND COMMITTED A LAPSE, THERE IS NO R EASON WHY THE ASSESSEE SHOULD BE MADE TO SUFFER THE CONSE QUENCES OF THAT LAPSE. ITA NO.4949/MUM/2016 SHASHI AGARWAL 11 2.7. THE HONBLE DELHI HIGH COURT IN CONSOLIDATED PHOTO AND FINVEST LTD. [2006] 281 ITR 394 (DELHI) H ELD AS UNDER: 'IN THE LIGHT OF THE AUTHORITATIVE PRONOUNCEMENTS O F THE SUPREME COURT REFERRED TO ABOVE, WHICH ARE BINDING UPON US AND THE OBSERVATIONS MADE BY THE HIGH COURT OF GUJARAT WITH WHICH WE FIND OURSELVES IN RESPECTFUL AGREEMENT, THE ACTION INITI ATED BY THE ASSESSING OFFICER FOR REOPENING THE ASSESSMENT CANN OT BE SAID TO BE EITHER INCOMPETENT OR OTHERWISE IMPROPER TO CALL FO R INTERFERENCE BY A WRIT COURT. THE ASSESSING OFFICER HAS IN THE REASON ED ORDER PASSED BY HIM INDICATED THE BASIS ON WHICH INCOME EXIGIBLE TO TAX HAD IN HIS OPINION ESCAPED ASSESSMENT. THE ARGUMENT THAT THE P ROPOSED REOPENING OF ASSESSMENT WAS BASED ONLY UPON A CHANG E OF OPINION HAS NOT IMPRESSED US. THE ASSESSMENT ORDER DID NOT ADMITTEDLY ADDRESS ITSELF TO THE QUESTION WHICH THE ASSESSING OFFICER PROPOSES TO EXAMINE IN THE COURSE OF REASSESSMENT PROCEEDING S. THE SUBMISSION OF MR. VOHRA THAT EVEN WHEN THE ORDER OF ASSESSMENT DID NOT RECORD ANY EXPLICIT OPINION ON THE ASPECTS NOW SOUGHT TO BE EXAMINED, IT MUST BE PRESUMED THAT THOSE ASPECTS WE RE PRESENT TO THE MIND OF THE ASSESSING OFFICER AND HAD BEEN HELD IN FAVOUR OF THE ASSESSEE IS TOO FAR-FETCHED A PROPOSITION TO MERIT ACCEPTANCE. THERE MAY INDEED BE A PRESUMPTION THAT THE ASSESSMENT PRO CEEDINGS HAVE BEEN REGULARLY CONDUCTED, BUT THERE CAN BE NO PRESU MPTION THAT EVEN WHEN THE ORDER OF ASSESSMENT IS SILENT, ALL POSSIBL E ANGLES AND ASPECTS OF A CONTROVERSY HAD BEEN EXAMINED AND DETE RMINED BY THE ASSESSING OFFICER. IT IS TRITE THAT A MATTER IN ISS UE CAN BE VALIDLY DETERMINED ONLY UPON APPLICATION OF MIND BY THE AUT HORITY DETERMINING THE SAME. APPLICATION OF MIND IS, IN TU RN, BEST DEMONSTRATED BY DISCLOSURE OF MIND, WHICH IS BEST D ONE BY GIVING REASONS FOR THE VIEW WHICH THE AUTHORITY IS TAKING. IN CASES WHERE THE ORDER PASSED BY A STATUTORY AUTHORITY IS SILENT AS TO THE REASONS FOR THE CONCLUSION IT HAS DRAWN, IT CAN WELL BE SAID TH AT THE AUTHORITY HAS NOT APPLIED ITS MIND TO THE ISSUE BEFORE IT NOR FOR MED ANY OPINION. THE PRINCIPLE THAT A MERE CHANGE OF OPINION CANNOT BE A BASIS FOR REOPENING COMPLETED ASSESSMENTS WOULD BE APPLICABLE ONLY TO SITUATIONS WHERE THE ASSESSING OFFICER HAS APPLIED HIS MIND AND TAKEN A CONSCIOUS DECISION ON A PARTICULAR MATTER I N ISSUE. IT WILL HAVE NO APPLICATION WHERE THE ORDER OF ASSESSMENT DOES N OT ADDRESS ITSELF TO THE ASPECT WHICH IS THE BASIS FOR REOPENING OF T HE ASSESSMENT, AS IS THE POSITION IN THE PRESENT CASE. IT IS IN THAT VIEW INCONSEQUENTIAL WHETHER OR NOT THE MATERIAL NECESSARY FOR TAKING A DECISION WAS AVAILABLE TO THE ASSESSING OFFICER EITHER GENERALLY OR IN THE FORM OF A REPLY TO THE QUESTIONNAIRE SERVED UPON THE ASSESSEE . WHAT IS IMPORTANT IS WHETHER THE ASSESSING OFFICER HAD BASE D ON THE MATERIAL ITA NO.4949/MUM/2016 SHASHI AGARWAL 12 AVAILABLE TO HIM TAKEN A VIEW. IF HE HAD NOT DONE S O, THE PROPOSED REOPENING CANNOT BE ASSAILED ON THE GROUND THAT THE SAME IS BASED ONLY ON A CHANGE OF OPINION.' 2.8. FROM THE FOREGOING DISCUSSION, THE CLEAR POSIT ION EMERGES AS UNDER: (1) REASSESSMENT PROCEEDINGS CAN BE VALIDLY INITIAT ED IN CASE RETURN OF INCOME IS PROCESSED UNDER SECTION 143(1) AND NO SCRUTINY ASSESSMENT IS UNDERTAKEN. IN SUCH CASES THERE IS NO CHANGE OF OPINION. (2) REASSESSMENT PROCEEDINGS WILL BE INVALID IN CAS E THE ASSESSMENT ORDER ITSELF RECORDS THAT THE ISSUE WAS RAISED AND IS DECIDED IN FAVOUR OF THE ASSESSEE. REASSESSMENT PRO CEEDINGS IN THE SAID CASES WILL BE HIT BY THE PRINCIPLE OF 'CHANGE OF OPINION'. (3) REASSESSMENT PROCEEDINGS WILL BE INVALID IN CAS E AN ISSUE OR QUERY IS RAISED AND ANSWERED BY THE ASSESSEE IN ORI GINAL ASSESSMENT PROCEEDINGS BUT THEREAFTER THE ASSESSING OFFICER DOES NOT MAKE ANY ADDITION IN THE ASSESSMENT ORDER. IN S UCH SITUATIONS IT SHOULD BE ACCEPTED THAT THE ISSUE WAS EXAMINED BUT THE ASSESSING OFFICER DID NOT FIND ANY GROUND OR REASON TO MAKE A DDITION OR REJECT THE STAND OF THE ASSESSEE. HE FORMS AN OPINION. THE REASSESSMENT WILL BE INVALID BECAUSE THE ASSESSING OFFICER HAD F ORMED AN OPINION IN THE ORIGINAL ASSESSMENT, THOUGH HE HAD NOT RECOR DED HIS REASONS. 2.9. THUS, WHERE AN ASSESSING OFFICER INCORRECTLY O R ERRONEOUSLY APPLIES LAW OR COMES TO A WRONG CONCLUS ION AND INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, RE SORT TO SECTION 263 OF THE ACT IS AVAILABLE AND SHOULD BE R ESORTED TO. BUT INITIATION OF REASSESSMENT PROCEEDINGS WILL BE INVALID ON THE GROUND OF CHANGE OF OPINION. HERE A DISTINCTIO N HAS TO BE DRAWN BETWEEN ERRONEOUS APPLICATION/INTERPRETATION /UNDERSTANDING OF LAW AND CASES WHERE FRESH OR NEW FACTUAL INFORMATION COMES TO THE KNOWLEDGE OF THE ASSESSING OFFICER ITA NO.4949/MUM/2016 SHASHI AGARWAL 13 SUBSEQUENT TO THE PASSING OF THE ASSESSMENT ORDER. IF NEW FACTS, MATERIAL OR INFORMATION COMES TO THE KNOWLED GE OF THE ASSESSING OFFICER, WHICH WAS NOT ON RECORD AND AVAI LABLE AT THE TIME OF THE ASSESSMENT ORDER, THE PRINCIPLE OF 'CHANGE OF OPINION' WILL NOT APPLY. THE REASON IS THAT 'OPINIO N' IS FORMED ON FACTS. 'OPINION' FORMED OR BASED ON WRONG AND IN CORRECT FACTS OR WHICH ARE BELIED AND UNTRUE DO NOT GET PRO TECTION AND COVER UNDER THE PRINCIPLE OF 'CHANGE OF OPINION '. FACTUAL INFORMATION OR MATERIAL WHICH WAS INCORRECT OR WAS NOT AVAILABLE WITH THE ASSESSING OFFICER AT THE TIME OF ORIGINAL ASSESSMENT WOULD JUSTIFY INITIATION OF REASSESSMENT PROCEEDINGS. THE REQUIREMENT IN SUCH CASES IS THAT THE INFORMATION OR MATERIAL AVAILABLE SHOULD RELATE TO MATERIAL FACTS. THE EXPRESSION 'MATERIAL FACTS' MEANS THOSE FACTS WHICH IF TAKEN INTO ACCOUNT WOULD HAVE AN ADVERSE E FFECT ON THE ASSESSEE BY A HIGHER ASSESSMENT OF INCOME THAN THE ONE ACTUALLY MADE. CORRECT MATERIAL FACTS CAN BE ASCER TAINED FROM THE ASSESSMENT RECORDS ALSO AND IT IS NOT NECE SSARY THAT THE SAME MAY COME FROM A THIRD PERSON OR SOURCE, I. E., FROM SOURCE OTHER THAN THE ASSESSMENT RECORDS. HOWEVER, IN SUCH CASES, THE ONUS WILL BE ON THE REVENUE TO SHOW THAT THE ITA NO.4949/MUM/2016 SHASHI AGARWAL 14 ASSESSEE HAD STATED INCORRECT AND WRONG MATERIAL FA CTS RESULTING IN THE ASSESSING OFFICER PROCEEDING ON TH E BASIS OF FACTS, WHICH ARE INCORRECT AND WRONG. THE REASONS R ECORDED AND THE DOCUMENTS ON RECORD ARE OF PARAMOUNT IMPORT ANCE AND WILL HAVE TO BE EXAMINED TO DETERMINE WHETHER T HE STAND OF THE REVENUE IS CORRECT. A DECISION OF FROM HONB LE DELHI HIGH COURT DATED SEPTEMBER 26, 2011 IN DALMIA P. LT D. V. CIT [2012] 348 ITR 469 (DELHI) AND ANOTHER DECISION FROM HONBLE JURISDICTIONAL HIGH COURT DATED NOVEMBER 8, 2011, IN INDIAN HUME PIPE CO. LTD. V. ASST. CIT [2012] 348 I TR 439 (BOM) ARE TWO SUCH CASES, WHICH THROWS LIGHT ON THE ISSUE. IN THE FIRST CASE, THE ASSESSING OFFICER IN THE ORIGIN AL ASSESSMENT HAD MADE ADDITION OF RS. 19,86,551 UNDER SECTION 40 (1) ON ACCOUNT OF UNCONFIRMED SUNDRY CREDITORS. THE REASSE SSMENT PROCEEDINGS WERE INITIATED AFTER NOTICING THAT UNCO NFIRMED SUNDRY CREDITORS, OF WHICH DETAILS, ETC., WERE NOT FURNISHED, WERE TO THE EXTENT OF RS. 52,84,058 AND NOT RS. 19, 86,551. IN INDIAN HUME PIPE CO. LTD. (SUPRA), AFTER VERIFICATI ON THE CLAIM UNDER SECTION 54EC WAS ALLOWED BUT SUBSEQUENTLY ON EXAMINATION IT TRANSPIRED THAT THE SECOND PROPERTY WAS PURCHASED PRIOR TO THE DATE OF SALE. THE AFORESAID DECISIONS/ ITA NO.4949/MUM/2016 SHASHI AGARWAL 15 FACTS CASES MUST BE DISTINGUISHED FROM CASES WHERE THE MATERIAL FACTS ON RECORD ARE CORRECT BUT THE ASSESS ING OFFICER DID NOT DRAW PROPER LEGAL INFERENCE OR DID NOT APPR ECIATE THE IMPLICATIONS OR DID NOT APPLY THE CORRECT LAW. THE SECOND CATEGORY WILL BE A CASE OF 'CHANGE OF OPINION' AND CANNOT BE REOPENED FOR THE REASON THAT THE ASSESSEE, AS REQUI RED, HAS PLACED ON RECORD PRIMARY FACTUAL MATERIAL BUT ON TH E BASIS OF LEGAL UNDERSTANDING, THE ASSESSING OFFICER HAS TAKE N A PARTICULAR LEGAL VIEW. HOWEVER, AS STATED ABOVE, AN ERRONEOUS DECISION, WHICH IS ALSO PREJUDICIAL TO THE INTEREST S OF THE REVENUE, CAN BE MADE SUBJECT-MATTER OF ADJUDICATION UNDER SECTION 263 OF THE ACT. 2.10. A DIVISION BENCH OF HONBLE DELHI HIGH COUR T IN NEW LIGHT TRADING CO. V. CIT [2002] 256 ITR 391 (DE LHI), REFERRED TO THE DECISION OF THE HONBLE APEX COURT IN CIT V. P. V. S. BEEDIES P. LTD. [1999] 237 ITR 13 (SC) AND MA DE FOLLOWING OBSERVATIONS. (PAGE 392) : 'IN THE CASE OF CIT V. P. V. S. BEEDIES P. LTD. [19 99] 237 ITR 13 (SC), THE APEX COURT HELD THAT THE AUDIT PARTY CAN POINT OUT A FACT, WHICH HAS BEEN OVERLOOKED BY THE INCOME-TAX OFFICER IN THE AS SESSMENT. THOUGH THERE CANNOT BE ANY INTERPRETATION OF LAW BY THE AU DIT PARTY, IT IS ENTITLED TO POINT OUT A FACTUAL ERROR OR OMISSION IN THE ASS ESSMENT AND REOPENING OF A CASE ON THE BASIS OF FACTUAL ERROR OR OMISSION POINTED OUT BY THE AUDIT PARTY IS PERMISSIBLE UNDER LAW. AS THE TRIBUN AL HAS RIGHTLY NOTICED, ITA NO.4949/MUM/2016 SHASHI AGARWAL 16 THIS WAS NOT A CASE OF THE ASSESSING OFFICER MERELY ACTING AT THE BEHEST OF THE AUDIT PARTY OR ON ITS REPORT. IT HAS INDEPEN DENTLY EXAMINED THE MATERIALS COLLECTED BY THE AUDIT PARTY IN ITS REPOR T AND HAS COME TO AN INDEPENDENT CONCLUSION THAT THERE WAS ESCAPEMENT OF INCOME. THE ANSWER TO THE QUESTION IS, THEREFORE, IN THE AFFIRM ATIVE, IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE.' AS RECORDED ABOVE, THE REASONS RECORDED OR THE DOC UMENTS AVAILABLE MUST SHOW NEXUS THAT IN FACT THEY ARE GERMANE AND R ELEVANT TO THE SUBJECTIVE OPINION FORMED BY THE ASSESSING OFFICER REGARDING ESCAPEMENT OF INCOME. AT THE SAME TIME, IT IS NOT T HE REQUIREMENT THAT THE ASSESSING OFFICER SHOULD HAVE FINALLY ASCERTAIN ED ESCAPEMENT OF INCOME BY RECORDING CONCLUSIVE FINDINGS. THE FINAL ASCERTAINMENT TAKES PLACE WHEN THE FINAL OR REASSESSMENT ORDER IS PASSE D. IT IS ENOUGH IF THE ASSESSING OFFICER CAN SHOW TENTATIVELY OR PRIMA FAC IE ON THE BASIS OF THE REASONS RECORDED AND WITH REFERENCE TO THE DOCUMENT S AVAILABLE ON RECORD THAT INCOME HAS ESCAPED ASSESSMENT. THIS TAKES ME TO THE OBSERVATIONS OF THE DELHI HIGH COURT IN KELVINATOR OF INDIA LTD. [2002] 256 ITR 1 (DELHI ) [FB] WHICH READ AS UNDER (PAGE 18): 'THE BOARD IN EXERCISE OF ITS JURISDICTION UNDER TH E AFOREMENTIONED PROVISIONS HAD ISSUED THE CIRCULAR O N OCTOBER 31, 1989. THE SAID CIRCULAR ADMITTEDLY IS BINDING O N THE REVENUE. THE AUTHORITY, THEREFORE, COULD NOT HAVE T AKEN A VIEW, WHICH WOULD RUN COUNTER TO THE MANDATE OF THE SAID CIRCULAR. FROM A PERUSAL OF CLAUSE 7.2 OF THE SAID CIRCULAR IT WOULD APPEAR THAT IN NO UNCERTAIN TERMS IT WAS STATED AS TO UNDER WHAT CIRCUMSTANCES THE AMENDMENTS HAD BEEN CARRIED OUT, I.E., ONLY WITH A VIEW TO ALLAY THE FEARS THAT THE OMISSION OF THE EXPRESSION 'REASON TO BELIEVE' FROM SECTION 147 WOU LD GIVE ARBITRARY POWERS TO THE ASSESSING OFFICER TO REOPEN PAST ASSESSMENT ON MERE CHANGE OF OPINION. IT IS, THEREF ORE, EVIDENT THAT EVEN ACCORDING TO THE CBDT A MERE CHAN GE OF ITA NO.4949/MUM/2016 SHASHI AGARWAL 17 OPINION CANNOT FORM THE BASIS FOR REOPENING A COMPL ETED ASSESSMENT. 2.11. ANOTHER ASPECT OF THE MATTER ALSO CANNOT BE LOST SIGHT OF. A STATUTE CONFERRING AN ARBITRARY POWER M AY BE HELD TO BE ULTRA VIRUS ARTICLE 14 OF THE CONSTITUTION OF INDIA. IF TWO INTERPRETATIONS ARE POSSIBLE, THE INTERPRETATION WH ICH UPHOLDS CONSTITUTIONALITY, IT IS TRITE, SHOULD BE FAVOURED. IN THE EVENT IT IS HELD THAT BY REASON OF SECTION 147 IF THE INC OME-TAX OFFICER EXERCISES ITS JURISDICTION FOR INITIATING A PROCEEDING FOR RE-ASSESSMENT ONLY UPON MERE CHANGE OF OPINION, THE SAME MAY BE HELD TO BE UNCONSTITUTIONAL. I AM, THEREFORE , OF THE OPINION THAT SECTION 147 OF THE ACT DOES NOT POSTUL ATE CONFERMENT OF POWER UPON THE ASSESSING OFFICER TO I NITIATE REASSESSMENT PROCEEDING UPON HIS MERE CHANGE OF OPI NION. 2.12. THE HONBLE APEX COURT THEREAFTER REFERRED T O THE SUBSEQUENT DECISION IN INDIAN AND EASTERN NEWSPAPER SOCIETY V. CIT [1979] 119 ITR 996 (SC) WHEREIN IT W AS OBSERVED THAT SOME OF THE OBSERVATIONS MADE IN KALYA NJI MAVJI (SUPRA) WERE FAR TOO WIDE AND THE STATUTE DID NOT PERMIT REAPPRAISAL OF MATERIAL CONSIDERED BY THE ASSESSING OFFICER ITA NO.4949/MUM/2016 SHASHI AGARWAL 18 DURING THE ORIGINAL ASSESSMENT. THE OBSERVATIONS IN KALYANJI MAVIJI (SUPRA) THAT REOPENING WOULD COVER A CASE 'W HERE INCOME HAS ESCAPED ASSESSMENT DUE TO THE OVERSIGHT, INADVERTENCE OR MISTAKE' WAS TOO BROADLY EXPRESSED AND DID NOT LAY DOWN THE CORRECT LAW. IT WAS CLARIFIED AND OBSERVED AT PAGE 1004 IN INDIAN AND EASTERN NEWSPAPER SOCIETY [ 1979] 119 ITR 996 (SC) AS UNDER : 'NOW, IN THE CASE BEFORE US, THE INCOME-TAX OFFICER HAD, WHEN HE MADE THE ORIGINAL ASSESSMENT, CONSIDERED THE PROVIS IONS OF SECTIONS 9 AND 10. ANY DIFFERENT VIEW TAKEN BY HIM AFTERWARDS ON THE APPLICATION OF THOSE PROVISIONS WOULD AMOUNT TO A CHANGE OF OPI NION ON MATERIAL ALREADY CONSIDERED BY HIM. THE REVENUE CONTENDS THA T IT IS OPEN TO HIM TO DO SO, AND ON THAT BASIS TO REOPEN THE ASSES SMENT UNDER SECTION 147(B). RELIANCE IS PLACED ON KALYANJI MAVJ I AND CO. V. CIT [1976] 102 ITR 287 (SC), WHERE A BENCH OF TWO LEARN ED JUDGES OF THIS COURT OBSERVED THAT A CASE WHERE INCOME HAD ESCAPED ASSESSMENT DUE TO THE 'OVERSIGHT, INADVERTENCE OR MISTAKE' OF THE INCOME-TAX OFFICER MUST FALL WITHIN SECTION 34(1)(B) OF THE IN DIAN INCOME-TAX ACT, 1922. IT APPEARS TO US, WITH RESPECT, THAT THE PROP OSITION IS STATED TOO WIDELY AND TRAVELS FARTHER THAN THE STATUTE WARRANT S IN SO FAR AS IT CAN BE SAID TO LAY DOWN THAT IF, ON REAPPRAISING THE MA TERIAL CONSIDERED BY HIM DURING THE ORIGINAL ASSESSMENT, THE INCOME-TAX OFFICER DISCOVERS THAT HE HAS COMMITTED AN ERROR IN CONSEQUENCE OF WH ICH INCOME HAS ESCAPED ASSESSMENT IT IS OPEN TO HIM TO REOPEN THE ASSESSMENT. IN OUR OPINION, AN ERROR DISCOVERED ON A RECONSIDERATI ON OF THE SAME MATERIAL (AND NO MORE) DOES NOT GIVE HIM THAT POWER . THAT WAS THE VIEW TAKEN BY THIS COURT IN MAHARAJ KUMAR KAMAL SIN GH V. CIT [1959] 35 ITR 1 (SC), CIT V. A. RAMAN AND CO. [1968] 67 IT R 11 (SC) AND BANKIPUR CLUB LTD. V. CIT [1971] 82 ITR 831 (SC), A ND WE DO NOT BELIEVE THAT THE LAW HAS SINCE TAKEN A DIFFERENT CO URSE. ANY OBSERVATIONS IN KALYANJI MAVJI AND CO. V. CIT [1976 ] 102 ITR 287 (SC) SUGGESTING THE CONTRARY DO NOT, WE SAY WITH RESPECT , LAY DOWN THE CORRECT LAW.' 2.13. IN A. L. A. FIRM (SUPRA), THE HONBLE APEX C OURT EXPLAINED THAT THERE WAS NO DIFFERENCE BETWEEN THE ITA NO.4949/MUM/2016 SHASHI AGARWAL 19 OBSERVATIONS OF THE SUPREME COURT IN KALYANJI MAVIJ I [1976] 102 ITR 287 (SC) AND INDIAN AND EASTERN NEWSPAPER S OCIETY CASE [1979] 119 ITR 996 (SC), AS FAR AS PROPOSITION (4) IS CONCERNED. IT WAS HELD THAT (PAGE 297 OF 189 ITR) : 'WE HAVE POINTED OUT EARLIER THAT KALYANJI MAVIJI'S CASE [1976] 102 ITR 287 (SC) OUTLINES FOUR SITUATIONS IN WHICH ACTI ON UNDER SECTION 34(1)(B) CAN BE VALIDLY INITIATED. THE INDIAN EASTE RN NEWSPAPER SOCIETY'S CASE [1979] 119 ITR 996 (SC) HAS ONLY IND ICATED THAT PROPO SITION (2) OUTLINED IN THIS CASE AND EXTRACTE D EARLIER MAY HAVE BEEN SOMEWHAT WIDELY STATED ; IT HAS NOT CAST ANY DOUBT ON THE OTHER THREE PROPOSITIONS SET OUT IN KALYANJI MA VJI'S CASE. THE FACTS OF THE PRESENT CASE SQUARELY FALL WITHIN THE SCOPE OF PROPOSITIONS 2 AND 4 ENUNCIATED IN KALYANJI MAVIJI' S CASE [1976] 102 ITR 287 (SC). PROPOSITION (2) MAY BE BRIEFLY SU MMARIZED AS PERMITTING ACTION EVEN ON A 'MERE CHANGE OF OPINION '. THIS IS WHAT HAS BEEN DOUBTED IN THE INDIAN AND EASTERN NEWSPAPE R SOCIETY CASE [1979] 119 ITR 996 (SC) AND WE SHALL DISCUSS I TS APPLICATION TO THIS CASE A LITTLE LATER. BUT, EVEN LEAVING THIS OUT OF CONSIDERATION, THERE CAN BE NO DOUBT THAT THE PRESE NT CASE IS SQUARELY COVERED BY PROPOSITION (4) SET OUT IN KALY ANJI MAVIJI'S CASE [1976] 102 ITR 287 (SC). THIS PROPOSITION CLEA RLY ENVISAGES A FORMATION OF OPINION BY THE INCOME-TAX OFFICER ON THE BASIS OF MATERIAL ALREADY ON RECORD PROVIDED THE FORMATION O F SUCH OPINION IS CONSEQUENT ON 'INFORMATION' IN THE SHAPE OF SOME LIGHT THROWN ON ASPECTS OF FACTS OR LAW WHICH THE INCOME-TAX OFF ICER HAD NOT EARLIER BEEN CONSCIOUS OF. TO GIVE A COUPLE OF ILLU STRATIONS ; SUPPOSE AN INCOME-TAX OFFICER, IN THE ORIGINAL ASSE SSMENT, WHICH IS A VOLUMINOUS ONE INVOLVING SEVERAL CONTENTIONS, ACCEPTS A PLEA OF THE ASSESSEE IN REGARD TO ONE OF THE ITEMS THAT THE PROFITS REALISED ON THE SALE OF A HOUSE IS A CAPITAL REALIS ATION NOT CHARGEABLE TO TAX. SUBSEQUENTLY, HE FINDS, IN THE F OREST OF PAPERS FILED IN CONNECTION WITH THE ASSESSMENT, SEVERAL IN STANCES OF EARLIER SALES OF HOUSE PROPERTY BY THE ASSESSEE. TH AT WOULD BE A CASE WHERE THE INCOME-TAX OFFICER DERIVES INFORMATI ON FROM THE RECORD ON AN INVESTIGATION OR ENQUIRY INTO FACTS NO T ORIGINALLY UNDERTAKEN. AGAIN, SUPPOSE THE INCOME-TAX OFFICER A CCEPTS THE PLEA OF AN ASSESSEE THAT A PARTICULAR RECEIPT IS NO T INCOME LIABLE TO TAX. BUT, ON FURTHER RESEARCH INTO LAW HE FINDS THA T THERE WAS A DIRECT DECISION HOLDING THAT CATEGORY OF RECEIPT TO BE AN INCOME RECEIPT. HE WOULD BE ENTITLED TO REOPEN THE ASSESSM ENT UNDER SECTION 147(B) BY VIRTUE OF PROPOSITION (4) OF KALY ANJI MAVJI. THE FACT THAT THE DETAILS OF SALES OF HOUSE PROPERTIES WERE ALREADY IN THE FILE OR THAT THE DECISION SUBSEQUENTLY COME ACR OSS BY HIM WAS ITA NO.4949/MUM/2016 SHASHI AGARWAL 20 ALREADY THERE WOULD NOT AFFECT THE POSITION BECAUSE THE INFORMATION THAT SUCH FACTS OR DECISION EXISTED COM ES TO HIM ONLY MUCH LATER. WHAT THEN, IS THE DIFFERENCE BETWEEN THE SITUATIONS ENVISAGED IN PROPOSITIONS (2) AND (4) OF KALYANJI MAVIJI'S CASE [1976] 102 ITR 287 (SC). THE DIFFERENCE, IF ONE KEEPS IN MIND THE TREND OF THE JUDICIAL DECISIONS, IS THIS. PROPOSITION (4) REFERS TO A CASE WHERE THE INCOME- TAX OFFICER INITIATES REASSESSMENT PROC EEDINGS IN THE LIGHT OF 'INFORMATION' OBTAINED BY HIM BY AN INVEST IGATION INTO MATERIAL ALREADY ON RECORD OR BY RESEARCH INTO THE LAW APPLICABLE THERETO WHICH HAS BROUGHT OUT AN ANGLE OR ASPECT TH AT HAD BEEN MISSED EARLIER, FOR E.G., AS IN THE TWO MADRAS DECI SIONS REFERRED TO EARLIER. PROPOSITION (2) NO DOUBT COVERS THIS SITUA TION ALSO BUT IT IS SO WIDELY EXPRESSED AS TO INCLUDE ALSO CASES IN WHI CH THE INCOME-TAX OFFICER, HAVING CONSIDERED ALL THE FACTS AND LAW, ARRIVES AT A PARTICULAR CONCLUSION, BUT REINITIATES PROCEEDINGS BECAUSE, ON A REAPPRAISAL OF THE SAME MATERIAL WHIC H HAD BEEN CONSIDERED EARLIER AND IN THE LIGHT OF THE SAME LEG AL ASPECTS TO WHICH HIS ATTENTION HAD BEEN DRAWN EARLIER, HE COME S TO A CONCLUSION THAT AN ITEM OF INCOME WHICH HE HAD EARL IER CONSCIOUSLY LEFT OUT FROM THE EARLIER ASSESSMENT SH OULD HAVE BEEN BROUGHT TO TAX. IN OTHER WORDS, AS POINTED OUT IN I NDIAN AND EASTERN NEWSPAPER SOCIETY'S CASE [1979] 119 ITR 996 (SC), IT ALSO ROPES IN CASES OF A 'BARE OR MERE CHANGE OF OP INION' WHERE THE INCOME-TAX OFFICER (VERY OFTEN A SUCCESSOR OFFI CER) ATTEMPTS TO REOPEN THE ASSESSMENT BECAUSE THE OPINION FORMED EA RLIER BY HIMSELF (OR, MORE OFTEN, BY A PREDECESSOR INCOME- T AX OFFICER) WAS, IN HIS OPINION, INCORRECT. JUDICIAL DECISIONS HAD CONSISTENTLY HELD THAT THIS COULD NOT BE DONE AND THE INDIAN AND EASTERN NEWSPAPER SOCIETY'S CASE [1979] 119 ITR 996 (SC) HA S WARNED THAT THIS LINE OF CASES CANNOT BE TAKEN TO HAVE BEE N OVERRULED BY KALYANJI MAVJI [1976] 102 ITR 287 (SC). THE SECOND PARAGRAPH FROM THE JUDGMENT IN THE INDIAN AND EASTERN NEWSPAP ER SOCIETY'S CASE [1979] 119 ITR 996 (SC) EARLIER EXTRACTED HAS ALSO REFERENCE ONLY TO THIS SITUATION AND INSISTS UPON THE NECESSI TY OF SOME INFORMATION WHICH MAKE THE INCOME-TAX OFFICER REALI SE THAT HE HAS COMMITTED AN ERROR IN THE EARLIER ASSESSMENT. THIS PARAGRAPH DOES NOT IN ANY WAY AFFECT THE PRINCIPLE ENUMERATED IN THE TWO MADRAS CASES CITED WITH APPROVAL IN ANANDJI HARIDAS 21 STC 326. EVEN MAKING ALLOWANCES FOR THIS LIMITATION PLACED O N THE OBSERVATIONS IN KALYANJI MAVJI, THE POSITION AS SUM MARISED BY THE HIGH COURT IN THE FOLLOWING WORDS REPRESENTS, IN OU R VIEW, THE CORRECT POSITION IN LAW (AT PAGE 629 OF 102 ITR) : THE RESULT OF THESE DECISIONS IS THAT THE STATUTE D OES NOT REQUIRE THAT THE INFORMATION MUST BE EXTRANEOUS TO THE RECO RD. IT IS ENOUGH IF THE MATERIAL, ON THE BASIS OF WHICH THE REASSESS MENT PROCEEDINGS ARE SOUGHT TO BE INITIATED, CAME TO THE NOTICE OF THE ITA NO.4949/MUM/2016 SHASHI AGARWAL 21 INCOME-TAX OFFICER SUBSEQUENT TO THE ORIGINAL ASSES SMENT. IF THE INCOME-TAX OFFICER HAD CONSIDERED AND FORMED AN OPI NION ON THE SAID MATERIAL IN THE ORIGINAL ASSESSMENT ITSELF, TH EN HE WOULD BE POWERLESS TO START THE PROCEEDINGS FOR THE REASSESS MENT. WHERE, HOWEVER, THE INCOME-TAX OFFICER HAD NOT CONSIDERED THE MATERIAL AND SUBSEQUENTLY CAME BY THE MATERIAL FROM THE RECO RD ITSELF, THEN SUCH A CASE WOULD FALL WITHIN THE SCOPE OF SEC TION 147(B) OF THE ACT'.' (EMPHASIS SUPPLIED) THE AFORESAID OBSERVATIONS ARE A COMPLETE ANSWER TO THE ISSUE THAT IF A PARTICULAR SUBJECT-MATTER, ITEM, DE DUCTION OR CLAIM IS NOT EXAMINED BY THE ASSESSING OFFICER, IT WILL NEVERTHELESS BE A CASE OF CHANGE OF OPINION AND T HE REASSESSMENT PROCEEDINGS WILL BE BARRED. 2.14. SO FAR AS, THE RELIANCE BY THE LD. DR UPON T HE DECISION FROM HON'BLE BOMBAY HIGH COURT IN THE CASE OF DR. AMINS PATHOLOGY LABORATORY (SUPRA) IS CONCERNED, T HERE ALSO THE ASSESSMENT WAS FRAMED U/S 143(3) AND SUBSEQUENT LY, THE LD. ASSESSING OFFICER FOUND THAT HE OVERLOOKED AN E NTRY WITH RESPECT TO UNPAID PURCHASES, IN RESPECT OF WHICH, H E WRONGLY GRANTED DEDUCTION. NOTICE U/S 148 WAS ISSUED. HOWE VER, THE HON'BLE HIGH COURT FOUND THAT THERE WAS NO CHANGE O F OPINION. THE LD. COUNSEL FOR THE ASSESSEE, CITED A LATER DECISION DATED 09/06/2011 FROM HON'BLE BOMBAY HIGH COURT ITSELF IN THE CASE OF TITANOR COMPONENTS (SUPRA), W HEREIN, NOTICE U/S 147 WAS QUASHED. THE HON'BLE APEX COURT IN CIT ITA NO.4949/MUM/2016 SHASHI AGARWAL 22 VS FORAMER FRANCE, VIDE ORDER DATED 16/01/2003, WHE RE, THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE THE MATERIAL FACTS, IT WAS HELD THAT THE NOTICE ISS UED BEYOND PRESCRIBED PERIOD CANNOT BE SUSTAINED MERELY ON THE BASIS OF CHANGE OF OPINION. EVEN OTHERWISE, WHEN TWO VIEWS A RE POSSIBLE, THE VIEW, WHICH FAVOURS THE ASSESSEE HAS TO BE PREFERRED. 2.15. I AM CONSCIOUS OF THE FACT THAT THE AFORESA ID OBSERVATIONS HAVE BEEN MADE IN THE CONTEXT OF SECTI ON 147(B) WITH REFERENCE TO THE TERM 'INFORMATION' AND CONCEP TUALLY THERE IS DIFFERENCE IN SCOPE AND AMBIT OF REOPENING PROVISIONS INCORPORATED WITH EFFECT FROM APRIL 1, 1989. HOWEVE R, IT WAS OBSERVED BY THE HONBLE APEX COURT IN KELVINATOR OF INDIA LTD. [2010] 320 ITR 561 (SC) THAT THE AMENDED PROVISIONS ARE WIDER. WHAT IS IMPORTANT AND RELEVANT IS THAT THE P RINCIPLE OF 'CHANGE OF OPINION' WAS EQUALLY APPLICABLE UNDER TH E UN- AMENDED PROVISIONS. THE SUPREME COURT WAS, THEREFOR E, CONSCIOUS OF THE SAID PRINCIPLE, WHEN THE OBSERVATI ONS MENTIONED ABOVE IN A. L. A. FIRM [1991] 189 ITR 285 WERE MADE. ITA NO.4949/MUM/2016 SHASHI AGARWAL 23 2.16. UNDER THE NEW PROVISIONS OF SECTION 147, AN ASSESSMENT CAN BE REOPENED IF THE ASSESSING OFFICER HAS 'REASON TO BELIEVE' THAT INCOME CHARGEABLE TO TAX H AS ESCAPED ASSESSMENT; BUT IF HE WANTS TO DO SO AFTER A PERIOD OF FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR, HE CAN D O SO ONLY IF THE ASSESSEE HAS FALLEN SHORT OF HIS DUTY TO DIS CLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSE SSMENT. IT DOES NOT FOLLOW THAT HE CANNOT REOPEN THE ASSESSMEN T EVEN WITHIN THE PERIOD OF FOUR YEARS AS AFORESAID IF HE HAS REASON TO BELIEVE THAT THE ASSESSEE HAS FAILED TO MAKE THE RE QUISITE DISCLOSURE. ALL THAT THE SECTION SAYS IS THAT IN A CASE WHERE THE ASSESSMENT IS SOUGHT TO BE REOPENED AFTER THE P ERIOD OF FOUR YEARS, THE ONLY REASON AVAILABLE TO THE ASSESS ING OFFICER IS THE NON-DISCLOSURE ON THE PART OF THE ASSESSEE. THE ACT PLACES A GENERAL DUTY ON EVERY ASSESSEE TO FURNISH FULL AND TRUE PARTICULARS ALONG WITH THE RETURN OF INCOME OR IN THE COURSE OF THE ASSESSMENT PROCEEDINGS SO THAT THE AS SESSING OFFICER IS ENABLED TO COMPUTE THE CORRECT AMOUNT OF INCOME ON WHICH THE ASSESSEE SHALL PAY TAX. THE POSITION H AS BEEN FURTHER CLARIFIED BY THE PROVISO ITSELF IN A CASE W HERE ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 144 OF THE ACT OR ITA NO.4949/MUM/2016 SHASHI AGARWAL 24 THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSM ENT YEAR, NO ACTION SHALL BE TAKEN AFTER THE EXPIRY OF FOUR Y EARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH Y EAR BY THE REASON OF FAILURE ON THE PART OF THE ASSESSEE T O MAKE A RETURN U/S 139 OR IN RESPONSE TO A NOTICE ISSUED UN DER SUB- SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DIS CLOSE TRULY AND FULLY ALL MATERIAL FACTS NECESSARY FOR HIS ASSE SSMENT FOR THAT ASSESSMENT YEAR. IT IS ALSO NOTED THAT THE SCO PE OF NEWLY SUBSTITUTED (W.E.F. 01/04/1989) SECTION 147 HAS BEE N ELABORATED IN DEPARTMENT CIRCULAR NUMBER 549 DATED 31 ST OCTOBER, 1989, MEANING THEREBY, ON OR AFTER 01/04/1 989, INITIATION OF REASSESSMENT PROCEEDINGS HAS TO BE GO VERNED BY THE PROVISIONS OF SECTION 147 TO 151 AS SUBSTITUTED (AMENDED) W.E.F. 01/04/1989. STILL, POWER U/S 147 OF THE ACT , THOUGH VERY WIDE BUT NO PLENARY. I AM AWARE THAT HONBLE G UJARAT HIGH COURT IN PRAFUL CHUNILAL PATEL: VASANT CHUNILA L PATEL VS ACIT (1999) 236 ITR 82, 840 (GUJ.) EVEN WENT TO THE EXTENT THAT ACTION UNDER MAIN SECTION 147 IS POSSIBLE IN S PITE OF COMPLETE DISCLOSURE OF MATERIAL FACTS. THE PRIMARY CONDITION OF REASONABLE BELIEF HAVING NEXUS WITH THE MATERIAL ON RECORD ITA NO.4949/MUM/2016 SHASHI AGARWAL 25 IS STILL OPERATIVE. HOWEVER, I AM OF THE VIEW, THA T MERE FRESH APPLICATION OF MIND TO THE SAME SET OF FACTS OR MER E CHANGE OF OPINION DOES NOT CONFER JURISDICTION TO THE ASSESSI NG OFFICER EVEN UNDER THE POST 1989 SECTION 147 OF THE ACT. M Y VIEW FIND SUPPORT FROM THE DECISION FROM HONBLE HIGH CO URTS IN FOLLOWING CASES:- I. JINDAL PHOTO FILMS LTD. VS DCIT (1998) 234 ITR 170 (DEL.), II. GARDEN SILK MILLS PVT. LTD. VS DCIT (1999) 151 CTR (GUJ.) 533, III. GOVIND CHHAPABHAI PATEL VS DCIT 240 ITR 628, 630 (GUJ.), IV. FORAMER VS CIT (2001) 247 ITR 436 (ALL.), AFFIRMED IN CIT VS FORAMER FINANCE (2003) 264 ITR 566, 567 (SC), V. IPICA LABORATORIES VS DCIT (2001) 251 ITR 416 (BOM. ), VI. RITU INVESTMENT PVT. LTD.(2012) 345 ITR 214 (DEL.), VII. KETAN B. MEHTA VS ACIT (2012) 346 ITR 254 (GUJ.), VIII. MS. PRAVEEN P. BHARUCHA VS DCIT (2012) 348 ITR 325 (BOM.), IX. CIT VS USHA INTERNATIONAL LTD. 348 ITR 485 (DEL.), X. AGRICULTURAL PRODUCE MARKET COMMITTEE VS ITO (2013) 355 ITR 348 (GUJ.), ITA NO.4949/MUM/2016 SHASHI AGARWAL 26 XI. B.B.C. WORLD NEWS LTD. VS ASST. DIT (2014) 362 ITR 577 (DEL.). XII. IDENTICAL RATIO WAS LAID DOWN IN CIT VS MALAYALA MANORMA COMPANY LTD. (2002) 253 ITR 378 (KER.) I THINK THIS THREAD RUNS THROUGH THE VARIOUS PROVIS IONS OF THE ACT. BUT EXPLANATION 1 TO THE SECTION CONFIN ES THE DUTY TO THE DISCLOSURE OF ALL PRIMARY AND MATERIAL FACTS NECESSARY FOR THE ASSESSMENT, FULLY AND TRULY. AS TO WHAT ARE MATERIAL OR PRIMARY FACTS WOULD DEPEND UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE AND NO UNIVERSAL FORMULA MAY BE ATTEMPTED. THE LEGAL OR FACTUAL INFERENCES FROM THO SE PRIMARY OR MATERIAL FACTS ARE FOR THE ASSESSING OFFICER TO DRAW IN ORDER TO COMPLETE THE ASSESSMENT AND IT IS NOT FOR THE AS SESSEE TO ADVISE HIM, FOR OBVIOUS REASONS. THE EXPLANATION, H OWEVER, CAUTIONS THE ASSESSEE THAT HE CANNOT REMAIN SMUG WI TH THE BELIEF THAT SINCE HE HAS PRODUCED THE BOOKS OF ACCO UNT BEFORE THE ASSESSING OFFICER FROM WHICH MATERIAL OR EVIDEN CE COULD HAVE BEEN WITH DUE DILIGENCE GATHERED BY HIM, HE HA S DISCHARGED HIS DUTY. IT IS FOR HIM TO POINT OUT THE RELEVANT ENTRIES WHICH ARE MATERIAL, WITHOUT LEAVING THAT EX ERCISE TO THE ASSESSING OFFICER. THE CAVEAT, HOWEVER, IS THAT SUCH ITA NO.4949/MUM/2016 SHASHI AGARWAL 27 PRODUCTION OF BOOKS OF ACCOUNT MAY, IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES, AMOUNT TO FULL AND TRUE DISCLOSU RE ; THIS IS CLEAR FROM THE USE OF THE EXPRESSION 'NOT NECESS ARILY' IN THE EXPLANATION. THUS, THE QUESTION OF FULL AND TRUE DI SCLOSURE OF PRIMARY OR MATERIAL FACTS IS A PURE QUESTION OF FAC T, TO BE DETERMINED ON THE FACTS AND CIRCUMSTANCES OF EACH C ASE. NO GENERAL PRINCIPLE CAN BE LAID DOWN. IT WAS OBSERVED BY THE HONBLE APEX COURT, IN VARIOUS CASES THAT THERE SHO ULD BE SOME 'TANGIBLE MATERIAL' COMING INTO THE POSSESSION OF THE ASSESSING OFFICER IN SUCH CASES TO ENABLE HIM TO RE SORT TO SECTION 147 OF THE ACT. DESPITE BEING A CASE OF FUL L AND TRUE DISCLOSURE, TANGIBLE MATERIAL COMING TO THE POSSESS ION OF THE ASSESSING OFFICER AFTER HE MADE THE ORIGINAL ASSESS MENT UNDER SECTION 143(3), WOULD INFLUENCE THE OPINION, FORMED OR PRESUMED TO HAVE BEEN FORMED EARLIER, BY THE ASSESS ING AUTHORITY; HE CAN WITH JUSTIFICATION CHANGE IT, BUT THAT WOULD NOT BE A CASE OF A 'MERE CHANGE OF OPINION' UNGUIDE D BY NEW FACTS OR CHANGE IN THE LEGAL POSITION. IT WILL BE A CASE OF THE ASSESSING AUTHORITY HAVING 'REASON TO BELIEVE', NOTWITHSTANDING THAT FULL AND TRUE PARTICULARS WERE FURNISHED BY THE ASSESSEE WHICH WERE EXAMINED, OR PRESUMED TO BE ITA NO.4949/MUM/2016 SHASHI AGARWAL 28 EXAMINED, BY HIM. THERE WAS A DIVERGENCE OF OPINIO N AMONGST VARIOUS HIGH COURTS AS TO WHAT CONSTITUTE INFORMATION FOR THE PURPOSES OF SECTION 34(1)(B) OF THE 1922 ACT (WHICH CORRESPONDS TO SECTION 147(B) OF THE 196 1 ACT) THE HONBLE APEX COURT IN CWT VS IMPERIAL TOBACCO COMP ANY LTD. (1966) 61 ITR 461 HAS NOTED SUCH DIVERGENCE OF OPINION ON THE POINT. HONBLE JURISDICTIONAL HIGH COURT IN CIT VS SIR MOHAMMAD YUSUF ISMAIL (1944) 12 ITR 8 (BOM.) HELD T HAT MERE CHANGE OF OPINION ON THE SAME FACTS ARE ON QUE STION OF LAW OR MERE DISCOVERY OF MISTAKE OF LAW IS NOT SUFF ICIENT INFORMATION AND THAT IN ORDER TO SUSTAINED ACTION U /S 34 BY FURTHER HOLDING THAT REASSESSMENT IS NOT PERMISSIBL E. THE HONBLE APEX COURT IN SIMON CARVES LTD. (1976) 105 ITR 212 HELD THAT ERRORLESS LEGALLY CORRECT ORDER CANNOT BE REOPENED, THEREFORE, IT IS SETTLED LAW THAT WITHOUT ANY NEW I NFORMATION AND ON THE BASIS OF MERE CHANGE OF OPINION, REOPENI NG OF ASSESSMENT IS NOT PERMISSIBLE. AS WAS HELD IN CIT V S TTK PRESTIGE LTD. (2010) 322 ITR 390 (KARN.) SLP DISMIS SED IN 2010 322 ITR (ST.) 14 (SC). REFERENCE ALSO MADE TO ASIAN PAINTS LTD. VS DCIT (2009) 308 ITR 195 (BOM.), ANDH RA BANK LTD. VS CIT (1997) 225 ITR 447 (SC). THE OBSERVATIO NS OF THE ITA NO.4949/MUM/2016 SHASHI AGARWAL 29 SUPREME COURT ARE A PROTECTION AGAINST THE ABUSE OF POWER; THEY ALSO PROTECT THE REVENUE WHICH CAN, IN THE LIG HT OF SUBSEQUENT COMING INTO LIGHT OF FACTS OR LAW, REOPE N THE ASSESSMENT. IN THE LIGHT OF THE AFORESAID DISCUSSIO N, SINCE, THERE WAS NO NEW TANGIBLE MATERIAL AVAILABLE WITH T HE ASSESSING OFFICER WHILE RESORTING TO SECTION 147/14 8 OF THE ACT, MORE SPECIFICALLY, WHILE FRAMING ORIGINAL ASSE SSMENT U/S 143(3) OF THE ACT, THERE WAS FULL DISCLOSURE OF MAT ERIAL FACTS BY THE ASSESSEE AND ON THE BASIS OF THOSE FACTS, ASSES SMENT WAS COMPLETED U/S 143(3) OF THE ACT, THEREFORE, IN MY H UMBLE OPINION, THE REASSESSMENT/REOPENING U/S 147 OF THE ACT IS UNJUSTIFIED AS THERE WAS NO FRESH TANGIBLE MATERIAL WITH THE ASSESSING OFFICER, WHILE REOPENING THE ASSESSMENT, THEREFORE, THE REOPENING BEYOND A PERIOD OF FOUR YEARS IS NOT PERMISSIBLE, MORE SPECIFICALLY, WHEN THE MATERIAL F ACTS WERE DISCLOSED BY THE ASSESSEE AND ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT. THUS, THE REOPENING OF ASSESSMEN T IS BAD IN LAW. THIS GROUND OF THE ASSESSEE IS ALLOWED. 3. SINCE, I HAVE DECIDED THE ISSUE OF REOPENING, A FTER EXPIRY OF FOUR YEAR AS BAD IN LAW AND IN FAVOUR OF THE ITA NO.4949/MUM/2016 SHASHI AGARWAL 30 ASSESSEE, THEREFORE, THERE IS NO NEED TO DECIDE THE NEXT GROUND OF THE ASSESSEE WITH RESPECT TO DISALLOWING THE DEPRECIATION. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESEN CE OF LD. REPRESENTATIVE FROM BOTH SIDES AT THE CONCLU SION OF THE HEARING ON 18/12/2017 SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 18/12/2017 F{X~{T? P.S / ! & $ )!*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * / THE CIT, MUMBAI. 4. ) ) * / CIT- , MUMBAI 5. +,- ' , ) '#$ ' / , / DR, ITAT, MUMBAI 6. -0 1$ / GUARD FILE. & / BY ORDER, (+# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI