DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-6(3)(1), MUMBAI V. IDBI FEDERAL LIFE INSURANCE COMPANY PRIVATE LIMITED , MUMBAI

ITA 5290/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6153 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 14-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AWUNGSHI GIMSON
• Keywords: Reopening of assessment; Business income; Audit objection; Tangible material; Difference of opinion; Tax effect; Reason to believe; Change of opinion; Reassessment proceedings; Borrowed satisfaction
• Section: 147

Judgement Text

, ,, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER & SHRI RAM LAL NEGI, JUDICIAL MEMBER ./ ITA NO.5290/MUM/2017 ( / ASSESSMENT YEAR :2008-2009) DCIT, 6(3)(1), MUMBAI VS. IDBI FEDERAL LIFE INSURANCE COMPANY PRIVATE LIMITED, 1 ST FLOOR, TRADEVIEW, OASIS COMPLEX, KAMALA CITY, P.B.MARG, LOWER PAREL(WEST), MUMBAI- 400013 ./PAN NO. : AABCI 6227 M ( /APPELLANT ) .. ( / RESPONDENT ) AND CROSS OBJECTION NO.334/MUM/2018 (ARISING OUT OF ITA NO.5290/MUM/2017) ( / ASSESSMENT YEAR :2008-2009) IDBI FEDERAL LIFE INSURANCE COMPANY PRIVATE LIMITED, 1 ST FLOOR, TRADEVIEW, OASIS COMPLEX, KAMALA CITY, P.B.MARG, LOWER PAREL(WEST), MUMBAI- 400013 VS. DCIT, 6(3)(1), MUMBAI ./PAN NO. : AABCI 6227 M ( /APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI AWUNGSHI GIMSON, DR /ASSESSEE BY : MS. AARTI VISSANJI, AR / DATE OF HEARING : 09/01/2019 /DATE OF PRONOUNCEMENT 15/01/2019 / O R D E R PER RAJESH KUMAR, AM : THIS APPEAL BY REVENUE ARISES OUT OF THE ORDER OF T HE CIT(A) 12, MUMBAI, DATED 05.05.2017, WHICH IN TURN HAS ARISEN OUT OF THE ORDER ITA NO.5290/17 & CO NO.334/18 2 PASSED BY THE ASSESSING OFFICER U/S. 143(3)/147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) RELATIN G TO A.Y. 2008-2009. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION. 2. FIRST, WE SHALL DECIDE THE CROSS OBJECTION OF TH E ASSESSEE I.E. CO NO.334/MUM/2018, WHEREIN THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS :- THE RESPONDENT SUBMITS THE FOLLOWING CROSS-OBJECTIO NS ARE INDEPENDENT, SEPARATE / ALTERNATIVE AND WITHOUT PRE JUDICE TO ONE ANOTHER: 1. REOPENING OF THE ASSESSMENT IS BAD IN LAW ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-12, MU MBAI ['CIT(A)'] ERRED IN HOLDING THAT ALL THE PRE-CONDIT IONS NECESSARY FOR ASSUMING JURISDICTION UNDER SECTION 147 OF THE INCO ME-TAX ACT, 1961, HAD BEEN SATISFIED. 2. REOPENING OF THE ASSESSMENT BASED ON AN AUDIT OB JECTION WITHOUT PREJUDICE TO GROUND 1 ABOVE, ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C IT(A) OUGHT TO HAVE HELD THAT THE REOPENING OF THE ASSESSMENT BASE D ON AN AUDIT OBJECTION IS BAD IN LAW. 3. REOPENING OF THE ASSESSMENT BASED ON A CHANGE OF OPINION WITHOUT PREJUDICE TO GROUND 1 ABOVE, ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C IT(A) OUGHT TO HAVE HELD THAT THE REOPENING OF THE ASSESSMENT BASE D ON A MERE CHANGE OF OPINION IS BAD IN LAW. THE RESPONDENT CRAVES LEAVE TO ADD TO OR ALTER, BY DELETION, SUBSTITUTION OR OTHERWISE, ANY OR ALL OF THE ABOVE GROUNDS OF CROSS- OBJECTIONS AT OR BEFORE THE HEARING OF THE APPEAL. 3. IN THE CROSS OBJECTION THE ASSESSEE HAS CHALLENG ED THE ORDER OF CIT(A) ON THE GROUND THAT THE CIT(A) HAS ERRED IN H OLDING THAT REOPENING HAS RIGHTLY BEEN DONE U/S.147 OF THE ACT. THE ASSES SEE HAS ALSO TAKEN ITA NO.5290/17 & CO NO.334/18 3 WITHOUT PREJUDICE GROUND THAT THE CASE OF THE ASSES SEE WAS REOPENED ON THE BASIS OF AUDIT OBJECTION WHICH IS BAD IN LAW AN D, THEREFORE, THE REASSESSMENT PROCEEDINGS ARE BAD IN LAW AND SECOND WITHOUT PREJUDICE GROUND TAKEN BY THE ASSESSEE IS THAT THE REOPENING IS MERE CHANGE OF OPINION WHICH IS NOT SUSTAINABLE UNDER LAW. 4. FACTS IN BRIEF ARE THAT THE ASSESSEE FILED RETUR N OF INCOME ON 30.09.2008 DECLARING LOSS OF RS.25,58,76,750/-. THE ASSESSMENT U/S.143(3) OF THE ACT WAS COMPLETED ON 28.12.2010 A SSESSING THE LOSS AT RS.13,70,06,276/-. THEREAFTER THE CASE OF THE ASSES SEE WAS REOPENED U/S.147 OF THE ACT BY ISSUING THE NOTICE U/S.148 OF THE ACT DATED 28.02.2013 THE ASSESSEE IN THE RETURN OF INCOME FIL ED BEFORE THE AUTHORITIES APPENDED NOTE-4 IN WHICH IT IS STATED T HAT THE DEFICIT OF RS.25,56,77,300/- WAS DETERMINED IN ACCORDANCE WIT H SECTION 44 READ WITH RULE 2 OF FIRST SCHEDULE TO THE ACT AFTER CON SIDERING THE EXPENSES OF RS.12,77,50,343/- INCURRED PRIOR TO DATE OF REGISTR ATION I.E. DECEMBER 19, 2007 WITH IRDA. THE AO ON THE BASIS OF SAID NOTE RE CORDED THE REASONS WHICH ARE REPRODUCED AS UNDER :- REASON FOR REOPENING IDBI FEDERAL LIFE INSURANCE CO. LTD. A.Y.2008-09 'IN THE INSTANT CASE, THE ASSESSEE HAS OFFERED THE TOTAL INCOME AS INCOME FROM INSURANCE BUSINESS ONLY. HOWEVER, WHILE ASSESSMENT, THE ASSESSING OFFICER HAD MENTIONED IN POINT NO. 18 OF THE ASSESSMENT ORDER, THAT THE INCOME FROM POLICY HOLDE R ACCOUNT SHALL BE COMPUTED AS INSURANCE INCOME U/S 44 OF IT ACT AN D INCOME FROM SHARE HOLDER ACCOUNT IS COMPUTED AS PER NORMAL PROV ISION OF THE ACT. FURTHER, IT WAS NOTICED THAT THE ASSESSEE HAD MENTIONED AGAINST THE POINT 4 OF NTOES TO COMPUTATION THAT TH E INCOME HAS BEEN COMPUTED AFTER THE CONSIDERING EXPENSES AMOUNT OF RS.12,77,50,343/- INCURRED PRIOR TO DATE OF REGISTR ATION (I. E. ITA NO.5290/17 & CO NO.334/18 4 DECEMBER 19,2007) WITH IRDA. SINCE, THE EXPENDITURE WAS INCURRED PRIOR TO THE COMMENCEMENT OF BUSINESS, THE SAME SHOULD HAVE BEEN AMORTIZED AND AILOWED RS. 2,55,50,068/- A S DEDUCTION OF AN AMOUNT EQUAL TO ONE-FIFTH OF RS.12,77,50,343/ - FOR EACH OF THE FIVE SUCCESSIVE PREVIOUS YEARS AS PER SECTION 350 O F THE IT ACT. HOWEVER, DURING THE ASSESSMENT THE ASSESSING OFFICE R HAD NOT AMORTIZED AND ALLOWED THE WHOLE EXPENDITURE. THIS H AD RESULTED IN UNDER ASSESSMENT OF INCOME OF RS.10,22,00,275/- AND CONSEQUENT ALLOWANCE OF CARRY FORWARD OF LOSS TO THAT EXTENT. THE NOTIONAL TAX EFFECT ON THIS ACCOUNT WORKS OUT TO RS.3,47,37,873/ - ' IN VIEW OF THE ABOVE FACTS CASE IS REOPENED U / S 1 47 OF THE ACT. SD/- (SARAVANA KUMARAN), DCIT CIR.6(1), MUMBAI THEREAFTER THE AO COMPLETED THE ASSESSMENT VIDE ORD ER DATED 29.12.2013 PASSED U/S.143(3) R.W.S.147 OF THE ACT B Y DISALLOWING THE EXPENSES U/S.35D OF THE ACT TO THE TUNE OF RS.10,22 ,00,275/-, BESIDES MAKING OTHER ALLOWANCE BY ALLOWING ONLY 1/5 TH OF THE SAID EXPENSES. 5. THE ASSESSEE CHALLENGED THE REOPENING PROCEEDIN GS BEFORE THE CIT(A), WHO DISMISSED THE TECHNICAL ISSUE RAISED BY THE ASSESSEE IN A VERY CRYPTIC MANNER BY OBSERVING AND HOLDING AS UND ER :- 5. GROUND OF APPEAL 05.1 TO 5 REOPENING OF ASSESSMENT IS NOT BAD IN LAW SINCE ALL THE NECESSARY PRECONDITIONS TOR ISSUING NOTICE U/S.148 HAVE BEEN SATISFIED. NOTICE WAS ISSUED BY THE A.O. ON THE FACT THAT APPARENTLY THERE WAS CONCEALMENT OF INCOME BY THE APPELLANT COMPANY. GRO UND OF APPEAL NOS.1 TO 5 ARE DISMISSED. 6. LD. AR VEHEMENTLY SUBMITTED BEFORE US THAT THE A SSESSMENT WAS REOPENED ON THE BASIS OF AUDIT OBJECTION WHICH IS N OT PERMISSIBLE UNDER LAW. LD.AR DREW OUR ATTENTION TO THE AUDIT OBJECTIO N, A COPY OF WHICH IS FILED AT PAGE 1 TITLED AS INCORRECT COMPUTATION OF BUSINESS INCOME AND SUBMITTED THAT IN PARA NO.3 OF THE SAID AUDIT OBJEC TION IT IS STATED THAT IT WAS NOTICED FROM THE POINT NO.4 OF NOTES IN THE CO MPUTATION OF INCOME ITA NO.5290/17 & CO NO.334/18 5 THAT INCOME HAS BEEN COMPUTED AFTER TAKING INTO CON SIDERATION THE AMOUNT OF RS.12,77,50,343/- INCURRED PRIOR TO DATE OF REGISTRATION AFTER DECEMBER, 19, 2007 WITH IRDA AND SINCE THE EXPENDIT URE WAS INCURRED PRIOR TO THE COMMENCEMENT OF BUSINESS SAME SHOULD B E AMORTIZED TO THE TUNE OF RS.2,55,50,068/- AS DEDUCTION EQUAL TO 1/5 TH OF RS.12,77,50,343/- FOR EACH OF THE SUCCESSIVE FIVE PREVIOUS YEARS AS P ER SECTION 35DOF THE ACT. IT IS ALSO STATED IN THE SAID OBJECTION DURING THE ASSESSMENT PROCEEDINGS THE AO HAVE NOT AMORTIZED AND ALLOWED T HE WHOLE EXPENDITURE WHICH HAS RESULTED INTO UNDER ASSESSMEN T OF INCOME OF RS.10,22,00,275/- AND CONSEQUENT ALLOWANCE OF CARRY FORWARD OF LOSS TO THAT EXTENT ON WHICH A TAX EFFECT WORKED OUT TO RS. 3,47,37,873/-. LD. AR ALSO SUBMITTED THAT ON PERUSAL OF THE REASONS RECOR DED BY THE AO CLEARLY SHOWS THAT THERE IS VERBATIM REPETITION OF AUDIT OB JECTION IN THE REASONS RECORDED AND THERE IS NO APPLICATION OF MIND ON THE PART OF AO BUT IN FACT THE AO HAS BORROWED SATISFACTION AND THE LD. AR FU RTHER ARGUED THAT THE AO HAS NOWHERE RECORDED OR STATED IN THE REASON REC ORDED THAT HE HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSME NT AND, THEREFORE, REOPENING ON THE BASIS OF AUDIT OBJECTION IS WITHOU T APPLICATION OF MIND AS ISSUING NOTICE U/S.148 OF THE ACT IN A MECHANICAL MANNER IS BAD IN LAW AND, THEREFORE, REASSESSMENT PROCEEDINGS SHOULD BE ANNULLED AND QUASHED. 7. IN DEFENCE OF HER ARGUMENT, LD. AR RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF XEROX MODICORP LTD. VS. DCIT, [2013] 350 ITR 308 (DELHI). LD.AR ALSO SUBMITTED THAT THE FACT S OF CLAIM OF EXPENSES ITA NO.5290/17 & CO NO.334/18 6 AGAINST THE INCOME HAS DULY BEEN STATED IN PARA 4 O F THE COMPUTATION OF TOTAL INCOME AND IT WAS ALSO BEFORE THE AO AT THE T IME OF ASSESSMENT PROCEEDINGS WHICH CULMINATED U/S.143(3) OF THE ACT, AND, THUS, THE AO HAS ACCEPTED THE CLAIM OF ASSESSEE AFTER DUE APPLIC ATION OF MIND. EVEN ON THIS COUNT, THE REASSESSMENT PROCEEDINGS ARE BAD IN LAW AS THE SAME ARE BASED UPON THE CHANGE OF OPINION WHICH IS NOT P ERMISSIBLE UNDER LAW. FINALLY, LD. AR SUBMITTED THAT THE REASSESSMENT PRO CEEDINGS MAY KINDLY BE QUASHED IN VIEW OF THE ABOVE STATED FACTS AND PO SITION OF LAW. 9. PER CONTRA , LD. DR BEFORE THE BENCH SUBMITTED THAT THE CASE O F THE ASSESSEE WAS REOPENED WITHIN FOUR YEARS FROM THE EN D OF RELEVANT ASSESSMENT YEAR AND, THEREFORE, IF THE INCOME HAS E SCAPED ASSESSMENT EVEN OTHERWISE THAN AT THE MISTAKE OF THE ASSESSEE THE SAME IS VALIDLY REOPENED BY THE AO. LD.DR WHILE VEHEMENTLY COUNTERI NG THE ARGUMENTS OF THE LD. AR, SUBMITTED THAT THE REOPENING CANNOT BE STATED TO BE BAD JUST FOR THE REASON THAT REOPENING IS DONE ON THE BASIS OF AUDIT OBJECTION OF THE AUDIT PARTY. LD.DR RELIED ON THE DECISIONS OF HONB LE SUPREME COURT IN THE CASE OF CIT VS. P.V.S.BEEDIES (P) LTD. (1999) 1 03 TAXMAN 294 (SC). LD.DR FURTHER SUBMITTED THAT IN THE INSTANT CASE TH E REOPENING OF ASSESSMENT PROCEEDINGS U/S.147(B) OF THE ACT ON TH E BASIS OF FACTUAL INFORMATION GIVEN BY THE INTERNAL AUDIT PARTY WAS H ELD TO BE RIGHT AND, THEREFORE, THE CROSS OBJECTION FILED BY THE ASSESSE E ON THIS GROUND DESERVES TO BE DISMISSED. ON THE ISSUE OF REOPENING ON THE BASIS OF MATERIAL ALREADY AVAILABLE BEFORE THE AO, LD. DR SU BMITTED THAT THE SAID INFORMATION WAS CLEARLY OVERLOOKED BY THE AO WHILE FRAMING THE ITA NO.5290/17 & CO NO.334/18 7 ASSESSMENT U/S.143(3) OF THE ACT AND, THEREFORE, RE ASSESSMENT WAS RIGHTLY REOPENED AS INCOME HAS ESCAPED ASSESSMENT D UE TO EXCESSIVE CLAIM OF PREOPERATIVE EXPENSES TO THE EXTENT OF RS. 4/5 TH WHICH APPROXIMATELY COMES TO RS.10,22,00,275/-. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD INCLUDING THE DECISI ONS CITED BY THE RIVAL PARTIES. IN ORDER TO ADJUDICATE THE WHOLE ISSUE, WE WOULD LIKE TO REITERATE THE FACTS OF THE CASE IN THE FOLLOWING PARAGRAPHS. 11. THE UNDISPUTED FACTS ARE THAT THERE WAS AN AUDI T OBJECTION BY THE AUDIT PARTY IN WHICH IT HAS BEEN CLEARLY STATED THA T THE ASSESSEE HAS CLAIMED EXCESS DEDUCTION TO THE TUNE OF RS.10,22,00 ,275/-. THE VERBATIM OF AUDIT OBJECTION IS REPRODUCED AS UNDER :- IN THE INSTANT CASE, THE ASSESSEE HAD OFFERED THE T OTAL INCOME AS INCOME FROM INSURANCE BUSINESS ONLY. HOWEVER, WHILE ASSESSMENT, THE ASSESSING OFFICER HAD MENTIONED IN POINT NO. 18 OF THE ASSESSMENT ORDER, THAT THE INCOME FROM POLICY HOLDE R ACCOUNT SHALL BE COMPUTED AS INSURANCE INCOME U/S 44 OF IT ACT AN D INCOME FROM SHARE HOLDER ACCOUNT IS COMPUTED AS PER NORMAL PROV ISION OF THE ACT. FURTHER, IT WAS NOTICED THAT THE ASSESSEE HAD MENTIONED AGAINST THE POINT 4 OF NTOES TO COMPUTATION THAT TH E INCOME HAS BEEN COMPUTED AFTER THE CONSIDERING EXPENSES AMOUNT OF RS.12,77,50,343/- INCURRED PRIOR TO DATE OF REGISTR ATION (I. E. DECEMBER 19,2007) WITH IRDA. SINCE, THE EXPENDITURE WAS INCURRED PRIOR TO THE COMMENCEMENT OF BUSINESS, THE SAME SHOULD HAVE BEEN AMORTIZED AND AILOWED RS. 2,55,50,068/- A S DEDUCTION OF AN AMOUNT EQUAL TO ONE-FIFTH OF RS.12,77,50,343/ - FOR EACH OF THE FIVE SUCCESSIVE PREVIOUS YEARS AS PER SECTION 350 O F THE IT ACT. HOWEVER, DURING THE ASSESSMENT THE ASSESSING OFFICE R HAD NOT AMORTIZED AND ALLOWED THE WHOLE EXPENDITURE. THIS H AD RESULTED IN UNDER ASSESSMENT OF INCOME OF RS.10,22,00,275/- AND CONSEQUENT ALLOWANCE OF CARRY FORWARD OF LOSS TO THAT EXTENT. THE NOTIONAL TAX EFFECT ON THIS ACCOUNT WORKS OUT TO RS.3,47,37,873/ - ' IT IS CLEAR FROM THE REASONS RECORDED BY THE AUDIT PARTY THAT PARA 3 HAS BEEN REPRODUCED VERBATIM AND BASED ON THAT THE ASSESSMENT HAS ITA NO.5290/17 & CO NO.334/18 8 BEEN REOPENED U/S.147 OF THE ACT AS IS CLEAR FROM T HE CONJOINT READING OF AUDIT OBJECTION AND REASONING RECORDED FOR REOPENIN G OF THE ASSESSMENT IN THE FOREGOING PARAS. THUS, IT IS ABUNDANTLY CLE AR THAT THE ASSESSMENT WAS REOPENED ON THE BASIS OF AUDIT OBJECTION BY AUD IT PARTY AND THERE IS NO APPLICATION OF MIND BY THE AO ON THIS ISSUE. WE FIND MERIT IN THE ARGUMENTS OF LD. AR THAT THE THERE IS NO SATISFACTI ON BY THE AO AND THERE IS NO APPLICATION OF MIND AND THE NOTICE HAS BEEN I SSUED IN A MECHANICAL MANNER, TAKING THE AUDIT OBJECTION VERBATIM IN THE REASONS RECORDED BY THE AO FOR REOPENING THE ASSESSMENT. THE AO HAS ACT ED UPON THE BORROWED SATISFACTION OF THE AUDIT PARTY, THE CASE OF THE ASSESSEE IS SUPPORTED BY THE DECISION OF HON'BLE DELHI HIGH COU RT IN THE CASE OF XEROX MODICORP LTD.(SUPRA) IN WHICH IT HAS BEEN HEL D THAT OPINION BY THE AUDIT PARTY CANNOT CONSTITUTE A TANGIBLE MATERIAL A ND REASSESSMENT WAS HELD TO BE NOT VALID. THE HELD PORTION OF THE HONB LE HIGH COURT IS REPRODUCED AS UNDER :- HELD, ALLOWING THE PETITIONS, (0 THAT THE ASSESSIN G AUTHORITY CANNOT KEEP IMPROVING HIS CASE FROM TIME TO TIME AND THAT THE REASSESSMENT PROCEEDINGS HAVE TO STAND OR FALL ON T HE BASIS OF WHAT WAS STATED IN THE REASONS RECORDED UNDER SECTI ON 148(2) OF THE INCOME-TAX ACT, 1961, AND NOTHING MORE. NO FAIL URE TO FURNISH FULL AND TRUE PARTICULARS RELATING TO THE ROYALTY P AYMENTS, INCLUDING THE FAILURE TO FILE THE RELEVANT AGREEMENTS, HAD BE EN ALLEGED IN THE REASONS RECORDED. IF ANYTHING, THE REASONS ARE AN A DMISSION THAT IT WAS THE ASSESSING OFFICER WHO DID NOT DRAW THE INFE RENCE THAT THE ROYALTY PAYMENTS WERE CAPITAL IN NATURE. IT WAS FOR HIM TO DRAW THE APPROPRIATE INFERENCE AND NOT FOR THE ASSESSEE TO T ELL HIM WHAT INFERENCE OF FACT OR LAW SHOULD BE DRAWN FROM THE P RIMARY FACTS FURNISHED. THEREFORE, THE REASSESSMENT NOTICES AFTE R FOUR YEARS FROM THE END OF THE ASSESSMENT YEARS 2002-03 AND 20 03-04 WERE QUASHED AS ALSO THE CONSEQUENT PROCEEDINGS. ITA NO.5290/17 & CO NO.334/18 9 IN THE CASE OF CIT VS. P.V.S.BEEDIES (P) LTD. (SUPR A), THE HONBLE SUPREME COURT HELD THAT THE REOPENING ON THE BASIS OF FACTUAL INFORMATION BY THE AUDIT PARTY WAS VALID WHEREAS IN THE PRESENT CASE BEFORE US THE ISSUE INVOLVED IS A LEGAL ISSUE AND NOT A FACTUAL M ISTAKE. WE ARE, THEREFORE, NOT IN AGREEMENT WITH THE CONCLUSION DRA WN BY THE CIT(A) AND THE ORDER PASSED BY THE CIT(A) CANNOT BE SUSTAINED ON THIS ISSUE. FINALLY, AFTER CONSIDERING THE FACTS OF THE CASE AND FACTUAL MATRIX, WE ARE OF THE VIEW THAT THE REOPENING OF THE ASSESSMENT IS NOT VA LID AS PER LAW AND IS HEREBY QUASHED. 12. SINCE WE HAVE DECIDED THE CROSS OBJECTION OF TH E ASSESSEE IN FAVOUR OF THE ASSESSEE, THEREFORE, THE APPEAL OF TH E REVENUE IS RENDERED INFRUCTUOUS AND THE SAME IS DISMISSED. 13. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED, WHEREAS THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/01/2019. SD/- (RAM LAL NEGI) SD/- (RAJESH KUMAR) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 15/01/2019 . . /PRAKASH KUMAR MISHRA , SR.PS. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, 1. / THE APPELLANT- 2. / THE RESPONDENT- 3. ( ) / THE CIT(A), MUMBAI 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY// ITA NO.5290/17 & CO NO.334/18 10 ( ASSISTANT REGISTRAR ) , / ITAT, MUMBAI