DCIT, New Delhi V. M/s. A.K. Capital Services Ltd., New Delhi

ITA 5485/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4198 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 09-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Keywords: Bogus purchase; Bogus Share capital; Search and seizure; Tangible material; Difference of opinion; Accommodation entries; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 142(1); 133(6); 147; 131; 148; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A , NEW DELHI BEFORE SH. AMIT SHUKLA , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 5485 /DE L/ 2014 ASSESSMENT YEAR: 2007 - 08 DCIT, CENTRAL CIRCLE - 2, NEW DELHI VS. M/S. A.K. CAPITAL SERVICES LTD., FLAT NO. N, SAGAR APARTMENT, 6, TILAK MARG, NEW DELHI PAN : AAACA1069L ( APPELLANT ) (RESPONDENT) APPELLANT BY SH. APARNA KARAN, CIT(DR) RESPONDENT BY SH. VED JAIN, ADV. DATE OF HEARING 20.12.2017 DATE OF PRONOUNCEMENT 03.01.2018 ORDER PER O.P. KANT , A. M. : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORDER DATED 11/07/2014 PASSED BY THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - III, NEW DELHI [IN SHORT THE LD. CIT - (A) ] FOR ASSESSMENT YEAR 2007 - 08 RAISING FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING RE - OPENING WAS BASED ON CHANGE OF OPINION , WHEREAS THE CASEWAS ACTUALLY RE - OPENED ON THE ABSSI OF INDEPENDENT INFORMATION IN THE FORM OF ENQUIRY REPORT OF THE INVESTIGATION WING, SUGGESTING THAT PAYMENT TO M/S. MARUTI PAPERS LTD. WAS BOGUS. 2. THE ORDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENEABLE ON FACTS AND IN LAW. 2 ITA NO. 5485/DEL/2014 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 2. B RIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE FILED REGULAR RETURN OF INCOME ON 30/11/200 7 DECLARING TOTAL INCOME OF RS. 12,14,30,611/ - . CONSEQUENT TO THE SEARCH AND SEIZURE A CTION UNDER SECTION 132 OF THE I NCOM E - TAX ACT, 1961 (IN SHORT THE ACT ), ASSESSMENT UNDER SECTION 153A/143(3) OF THE ACT WAS COMPLETED ON 26/12/200 9 ASSESSING TOTAL INCOME AT RS. 14,16,64,407/ - . IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER MADE ONE OF TH E DISALLOWANCE AMOUNTING TO RS. 9 7,15,872/ - FOR BOGUS SUB - ARRANGER FEE AGAINST FOLLOWING PARTIES: M/S. SHEVIN CAPITAL PRIVATE LIMITED RS.22,78,472 M/S. RISHI AUTOMATION RS. 8,41,800 M/S. SINGHAL GALVANIZING INDUSTRIES RS.31,42,700 M/S. VISHAL METAL CASTINGS PRIVATE LTD. RS.28,06,000 M/S. ASHIKA CAPITAL RS. 84,100 M/S. KARNI PROJECTS PRIVATE LIMITED RS. 2,81,400 M/S. RAJ NIKITA BUILDERS PRIVATE LTD. RS. 2,81,400 TOTAL RS.97,15,872 3. O N FURTHER APPEAL BY THE ASSESSEE, THE COMMISSIONER OF INCOME T AX (APPEALS) - I, NEW DELHI , ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITIONS INCLUDING THE ADDITION FOR BOGUS SUB ARRANGER FEE. 4. SUBSEQUENT TO THAT , CASE OF THE ASSESSEE WAS REOPENED UNDER SECTION 147 OF THE ACT AFTER RECORDING REASONS TO BELIEVE THAT INCOME ESCAPED AS SESSMENT AND NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 28/03/2012 AND SERVED UPON THE ASSESSEE. IN RESPONSE , THE ASSESSEE FILED RETURN OF INCOME ON 25/04/2012. THEREAFTER, NOTICE S UNDER SECTION 143(2) AND 142(1) OF THE ACT WERE ISSUED BY THE ASSESSING OFFICER. THE CASE WAS THEN TRANSFERRED TO THE ANOTHER ASSESSING OFFICER UNDER THE CHARGE OF COMMISSIONER OF INCOME - TAX (CENTRAL) - I, NEW DELHI, 3 ITA NO. 5485/DEL/2014 WHO AGAIN ISSUED FRESH NOTICE UNDER SECT ION 143(2) ACT DATED 15/01/2013 AND COMMENCED THE ASSESSMENT PROCEEDING. THE ASSESSMENT WAS FINALLY COMPLETED ON 04/03/2013 DISALLOWING SUB - A RRANGER FEE OF RS. 68,99,954 / - PAID BY THE A SSESSEE TO M/S MARUTI P APERS LTD. IN THE IMPUGNED ASSESSMENT ORDER, THE LD. ASSESSING OFFICER HAS NOTIC ED THAT SUB - ARRANGER FEE DEBITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE COMPANY WAS A SORT OF ACCOMMODATION ENTRY JUST TO REDUCE THE PROFIT. THE LD. ASSESSING OFFICER BROUGHT TO THE NOTICE OF THE ASSESSEE ENQUIRIES CARRIED O UT BY THE I NVESTIGATION W ING OF INCOME T AX DEPARTMENT , MEERUT (UP) AND STATEMENT OF D IRECTOR/AUTHORISED SIGNATORY OF M/S MARUTI P APERS LTD. THE ASSESSEE FURNISHED DETAILS OF TRANSACTION, COPIE S OF INVOICE, COPIES OF MANDATE AND OTHER DOCUMENTS RELATED TO T HE TRANSACTION AND SUBMITTED T HAT THE ARRANGER FEE PAID TO M/ S . MARUTI P APERS LTD . WAS GENUINELY PAID FOR SERVICES RENDERED BY THEM. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND OBSERVED THAT PAYMENT MADE TO M / S . MARUTI P APERS LT D . OF RS. 68,99,954/ - WAS NOTHING BUT AN ACCOMMODATI ON ENTRY FOR THE MUTUAL BENEFIT , WHICH HAS REDUCED THE PROFIT OF THE ASSESSEE C OMPANY TO THAT EXTENT WHEREAS M/ S . MARUTI P APERS LTD . WHICH WAS SUFFERING LOSSES IN ITS REGULAR BUSINESS ACTIVITY , SAVED ITS C APITAL GOING IN NEGATIVE FIGURE. IN VIEW OF THE OBSERVATIONS, THE ASSESSING O FFICER MADE DISALLOWANCE OF RS. 68,99,954/ - . 4.1 BEFORE THE LD. CIT - ( A ) , THE ASSESSEE CHALLENGED THE VALIDITY OF THE REASSESSMENT PROCEEDINGS AND SUBMITTED THAT ISSUE OF SUB - ARRANGER FEE WAS ALREADY EXAMINED IN EARLIER ASSESSMENT PROCEEDINGS U/S 153A/143(3) OF THE ACT AND REOPENING WAS BASED ONLY ON THE MERE CHANGE OF OPINION . THE ASSESSEE SUBMITTED BEFORE THE LD. CIT - ( A ) THAT IN ASSESSMENT YEAR 2006 - 07, THE ASSESSMENT WAS R EOPENED ON THE BASIS OF THE RECONCILIATION OF AMOUNT OF SUB - ARRANGER FEE PAID RECORDED IN THE 4 ITA NO. 5485/DEL/2014 BOOKS OF ACCOUNTS OF THE ASSESSEE AND SUB - ARRANGER FEE RECEIVED RECORDED IN THE BOOKS OF ACCOUNTS OF M/S MARUTI P APERS LTD. THE ASSESSEE FURTHER SUBMITTED THAT IN THE YEAR UNDER CONSIDERATION , ALSO THE ASSESSMENT HAS BEEN REOPENED ON IDENTICAL GROUNDS. THE LEARNED CIT - ( A ) FOLLOWING HIS FINDING FOR THE ASSESSMENT YEAR 2006 - 07, HELD THE REASSESSMENT UNDER SECTION 147 OF THE ACT AS INVALID. THE RELEVANT FINDING OF THE LEARNED CIT - ( A ) ON THE VALIDITY OF THE REASSESSMENT IS REPRODUCED AS UNDER: SINCE IN THE YEAR UNDER CONSIDERATION ALSO THE SAME FACTS ARE THERE ARE SAME SUBMISSIONS HAVE BEEN MADE AS WERE MADE DURING THE APPELLATE PROCEEDINGS FOR ASSESSMENT YEAR 2006 - 07 THEREFORE, RELYING ON MY ORDER DATED 11.06.2014 FOR ASSESSMENT YEAR 2006 - 07, I HOLD THAT IN THE YEAR UNDER CONSIDERA TION ALSO THE REASONS RECORDED ARE BAD IN LAW AND BASED ON CHANGE OF OPINION AND THERE IS NOTHING ON RECORD TO SUGGEST THAT REOPENING UNDER SECTION 147 OF THE ACT IS VALID. IN THE ABSENCE OF ALL THESE, IN MY HUMBLE VIEW THE REOPENING UNDER SECTION 147 OF THE ACT CANNOT BE SUSTAINED. 5. BEFORE US, THE LD. CIT(DR) SUPPORTING THE GROUNDS FILED A WRITTEN SUBMISSION, CONTENTS OF WHICH ARE REPRODUCED AS UNDER: IN THE ABOVE CASE, IT IS HUMBLY SUBMITTED THAT FOLLOWING DECISIONS MAY KINDLY BE CONSIDERED: 1 . R.K. MALHOTRA ITO VS KASTURBHAI LALBHAI, SUPREME COURT, 1977, 109 ITR 537 (SC) THE INTIMATION WHICH THE INCOME - TAX OFFICER RECEIVED FROM THE AUDIT DEPARTMENT WOULD CONSTITUTE 'INFORMATION' WITHIN THE MEANING OF SECTION 147(B). 2. DEVI ELECTRONICS PVT LTD VS ITO, BOMBAY HIGH COURT, 2016, 2017 - TIOL - 92 - HC - MUM - IT 5 ITA NO. 5485/DEL/2014 THE LIKELIHOOD OF A DIFFERENT VIEW WHEN MATERIALS EXIST OF FORMING A REASONABLE BELIEF OF ESCAPED INCOME, WILL NOT DEBAR THE AO FROM EXERCISING HIS JURISDICTION TO ASSESS THE ASSESSEE ON REOPENI NG NOTICE. 3. AMSA INDIA PVT LTD VS CIT, DELHI HIGH COURT, 2017, 2017 - TIOL - 603 - HC - DEL - IT THE DEPARTMENT CAN REASSESS THE RETURNS FURNISHED BY THE ASSESSEE IF THE AO HAS A REASON TO BELIEVE THAT THE FACTS HAVE A PROXIMATE LINK WITH THE ASSESSEE'S CONCEALE D INCOME. 4. PCIT VS PARAMOUNT COMMUNICATION (P.) LTD., DELHI HIGH COURT, 2017, 79 TAXMANN.COM 409 (DELHI) INFORMATION REGARDING BOGUS PURCHASE BY ASSESSEE RECEIVED BY DRI FROM CCE WHICH WAS PASSED ON TO REVENUE AUTHORITIES WAS 'TANGIBLE MATERIAL OUTSIDE RECORD' TO INITIATE VALID REASSESSMENT PROCEEDINGS. 5. ANKIT FINANCIAL SERVICES LTD. VS DCIT, GUJARAT HIGH COURT, 2016, 78 TAXMANN.COM 58 WHERE MATERIAL RECOVERED IN SEARCH OF ANOTHER PERSON INDICATED THAT ASSESSEE HAD RECEIVED BOGUS SHARE APPLICATIONS THROUGH ACCOMMODATION ENTRIES, SINCE ASSESSEE WAS BENEFICIARY, INITIATION OF RE - OPENING WAS JUSTIFIED. 6. AASPAS MULTIMEDIA LTD. VS DCIT, GUJARAT HIGH COURT, 2017, 83 TAXMANN.COM 82 WHERE REASSESSMENT WAS MADE ON BASIS OF INFORMATION RECEIVED FROM PRINCI PAL DIT (INVESTIGATION) THAT ASSESSEE WAS BENEFICIARY OF ACCOMMODATION ENTRIES BY WAY OF SHARE APPLICATION PROVIDED BY A THIRD PARTY, SAME WAS JUSTIFIED. 6. O N THE CONTRARY, LD. COUNSEL OF THE ASSESSEE FILED A PAPER BOOK CONTAINING PAGES 1 TO 433 AND SUB MITTED THAT THE TRIBUNAL IN ITA NO. 4719/DEL/2014 FOR ASSESSMENT YEAR 2006 - 07 UPHELD THE ORDER OF THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) HOLDING THAT ASSESSMENT WAS REOPENED ONLY ON THE MERE CHANGE OF OPINION. HE REFERRED TO THE REASONS RECORDED FOR THE YEAR UNDER CONSIDERATION, AVAILABLE ON PAGE 186 TO 187 OF THE PAPER BOOK AND SUBMITTED THAT REASONS RECORDED IN THE YEAR UNDER 6 ITA NO. 5485/DEL/2014 CONSIDERATION ARE IDENTICAL TO THE REASONS RECORDED FOR THE ASSESSMENT YEAR 2006 - 07 . ACCORDINGLY , H E SUBMITTED THAT APPEAL OF THE R EVENUE MIGHT BE DISMISSED. 7. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE R EVENUE IN ITS GROUNDS HAS CHALLENGED THAT THE ASSESSMENT WAS REOPENED ON THE BASIS OF INDEPENDENT INFORMATION IN THE FORM OF ENQUIRY REPORT OF INVESTIGATION W ING SUGGESTING THE PAYMENT TO M/ S . MARUTI P APERS LTD . WAS BOGUS . WE HAVE PERUSED THE COPY OF REASONS RECORDED BY THE ASSESSING OFFICER, AVAILABLE IN THE PAPER BOOK FILED BY THE ASSESSEE AT PAGE 186 TO 187. FOR THE PURPOSE OF CLARITY , THE SAID REASONS RECORDED BY THE ASSESSING OFFICER ARE REPRODUCED AS UNDER: IN THIS CASE ASSESSMENT U/S 153A/143(3) OF I.T. ACT, 1961 WAS COMPLETED ON 26 .12.2009 AT AN TOTAL INCOME OF RS.14,16,64,407/ - AS AGAINST RETURNED INCOME OF RS.12,14,30,611/ - FILED ON 13.11.2007. THE ASSESSEE COMPANY M/S. A.K. CAPITAL SERVICED LTD. HAS DEBITED A SUM OF RS.7,21,42,282/ - ON ACCOUNT OF SUB - ARRANGERS FEES/COMMISSION IN HIS BOOKS OF ACCOUNT FOR THE PERIOD 01.04.2006 TO 31.03.2007 RELEVANT TO T HE A.Y. 2007 - 08 OUT OF WHICH A SUM OF RS.68,99,954/ - RELATES TO M/S. MARUTI PAPERS LTD. WHEREAS THE SUB - ARRANGERS FEES/COMMISSION ACCOUNT IN THE BOOKS OF MARUTI PAPERS LTD., SHAMLI FOR THE PERIOD 1.4.2006 31.3.2007 SHOWS THAT M/S. MARUTI PAQPERS LTD. HA S CREDITED THE AMOUNT OF RS.68,47,500/ - ON DIFFERENT DATES IN ITS BOOKS OF ACCOUNT IN RESPECT OF M/S. MARUTI PAPERS LTD., SHAMLI DURING THE PERIOD 1.4.2006 TO 31.3.2007 AS UNDER: S. NO. DATE AMOUNTS 1. 31.07.2006 41,47,500 2. 3.8.2006 14,00,000 3. 31.1.2007 6,00,000 TOTAL 68,47,500 7 ITA NO. 5485/DEL/2014 THUS, THE ASSESSEE COMPA NY HAS DEBITED EXCESS AMOUNT OF RS.52,454/ - (RS.68,99,954 - 68,47,500) OF SUB - ARRANGERS/COMMISSION DURING THE PERIOD OF 1.4.2006 TO 31.3.2007 RELEVANT TO A.Y. 2007 - 08/ IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT THE INCOME OF RS.52,454/ - ON ACCOUNT OF EXCESS AMOUNT OF SUB - ARRANGERS FEES/COMMISSION DEBITED IN ASSESS EE S BOOKS OF ACCOUNT HAS ESCAPED ASSESSMENT ON ACCOUNT OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT . STATEMENT ON OATH OF S HRI RAJESHWAR BANSAL S/O LATE SHRI JAGDISH PRASAD PRESENTLY RESI DING AT HOSPITAL ROAD, SHAMLI, U.P. AGE 61 YEARS RECORDED U/S 131 ON 21.12.2010 IN RESPONSE TO SUMMON ISSUED. 8. FROM THE ABOVE REASONS RECORDED, WE DO NOT FIND ANYWHERE THAT THESE REASONS WERE RECORDED ON THE BASIS OF ENQUIRY REPORT OF INVESTIGATION W I NG S UGGESTING THAT THE PAYMENT TO M/S MARUTI P APERS LTD . WAS BOGUS. THOUGH IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS M ENTIONED THE ENQUIRY REPORT OF INVESTIGATION W ING, MEERUT (UP) FOR MAKING ADDITIONS, BUT IT HAS NOT BEEN MADE BASIS FOR REOPENING OF THE ASSESSMENT AND THE ASSESSMENT HAS BEEN REOPENED MERELY ON ACCOUNT OF THE DIFFERENCE OF THE AMOUNT RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AS WELL AS IN BOOKS OF ACCOUNTS OF THE M/S MARUTI P APERS LTD . ONLY. THE ASSESSEE IN ITS BOOKS OF ACC OUN TS RECORDED ARRANGER FEE OF RS. 68,99,954/ - WHEREAS M/ S . MARUTI P APERS LTD . CREDITED AN AMOUNT OF RS. 68,47,500/ - . ACCORDING TO THE ASSES SING OFFICER THIS AMOUNT OF RS. 52,454 (RS.68, 99, 954 - RS.68,47,500) HAS BEEN DEBITED IN EXCESS BY THE ASSESSEE. THE LEARNED COUNSEL OF THE ASSESSEE EXPLAINED BEFORE US THAT THIS DIFFERENCE WAS DUE TO CHANGE IN ACCOUNTING OF SERVICE TAX. ACCORDING TO HIM, THE ASSESSEE FOLLOWED INCLUSIVE METHOD IN RESPEC T OF THE SERVICE TAX, WHEREAS M/ S . MARUTI P APER LTD FOLLOWED EXCLUSI VE 8 ITA NO. 5485/DEL/2014 METHOD OF SERVICE TAX AND THEREFORE , SAID PARTY HAS NOT SHOWN AMOUNT OF SERVICE TAX IN THE PROFIT & LOSS ACCOUNT . THE LD. COUNSEL DRAWN OUR ATTENTION TO PAGE 52 TO 68 OF THE PAPER BOOK AND SUBMITTED THAT ALL INFORMATION IN RESPECT OF SUB - ARRANGER FEE, I NCLUDING THE FEE PAID TO M/ S MARUTI P APERS LTD . WAS ALREADY SUBMITTED BEFORE THE ASSESSING OFFICER I N PROCEEDINGS UNDER SECTION 15 3A/143(3) OF THE ACT AND NO ADVERSE INFE RENCE WAS DRAWN IN RESPECT OF M/ S MARUTI P APERS LTD. THE LD. CIT ( DR ) COULD NOT CONTRO VERT THIS FACT THAT SAID INFORMATION WAS ALREADY AVAILABLE WITH THE ASSESSING OFFICER. IN OUR OPINION, WHEN THE INFORMATION WAS ALREADY AVAILABLE BEFORE THE ASSESSING OFFICER IN RESPECT OF A RRANGER FEE PAID TO M/S MARUTI P APERS LTD . , REOPENING THE ASSESSME NT ON THE BASIS OF THE SAME INFORMATION CERTAINLY AMOUNT TO CHANGE OF OPINION. WE MAY LIKE TO EMPHASIZE HERE THAT IN THE REASONS RECORDED THERE IS NO MENTION OF ANY ADDITIONAL INFOR MATION RECEIVED IN RESPECT OF M/ S MARUTI P APER LTD. THE DECISIONS RELIED UP ON BY THE LEARNED CIT (DR) ARE NOT RELEVANT IN THE FACTS OF THE INSTANT CASE. 8.1 IN IDENTICAL SET OF CIRCUMSTANCES, THE TRIBUNAL (SUPRA) IN ASSESSMENT YEAR 2006 - 07 HAS ALREADY HELD THE REASSESSMENT PROCEEDING AS INVALID. THE RELEVANT FINDING OF THE TRIBUNAL IS REPRODUCED AS UNDER 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND LD. CIT(A) AND THE PAPERBOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ORIGINAL RETURN IN THE INSTANT CASE WAS FILED ON 22.11.2006 WHICH WAS PROCESSED U/S 143(1) ACCEPTING THE RETURNED INCOME OF RS. 9,01,89,011/ - . SUBSEQUENTLY, A SEARCH WAS CONDUCTED AT THE PREMISES OF THE A SSESSEE ON 26.04,2007 AND THE ASSESSMENT ORDER WAS PASSED U/S 153A/143(3) ON 29.12.2009, DETERMINING THE TOTAL INCOME AT RS. 11,04,06,510/ - . FROM THE DETAILS FURNISHED BY THE ASSESSEE IN THE PAPER BOOK, WE FIND THE AO DURING THE COURSE OF PROCEEDING U/S 15 3A/143(3) HAD CALLED FOR VARIOUS DETAILS FROM THE ASSESSEE INCLUDING THE ISSUE OF SUB ARRANGER FEE PAID. WE FIND ON THE BASIS OF 9 ITA NO. 5485/DEL/2014 THE VARIOUS DETAILS FILED BY THE ASSESSEE, THE AO HAD ALSO ISSUED NOTICE U/S 133(6) TO VARIOUS PARTIES TO WHOM THE SUB ARRANGER FEE WAS PAID. WE FIND AFTER CONSIDERING THE REPLY RECEIVED FROM THE VARIOUS PARTIES THE AO HAD MADE ADDITION OF RS. 1,75,68,084/ - ON ACCOUNT OF SUB ARRANGER FEE PAID TO FOUR PARTIES. WE FIND FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE THAT M/S MARU TI PAPER LTD., HAD ISSUED THE FOLLOWING INVOICES TO THE ASSESSEE WHICH WAS AVAILABLE BEFORE THE AO, A FACT RECORDED BY LA. CIT(A) AND NOT CONTROVERTED BY THE REVENUE. S.NO . DATE OF ISSUE OF INVOICE AMOUNT (IN RS.) SERVICE TAX (IN RS.) TOTAL (IN RS.) 1 12.01.2006 25,15,500 2,56,581 27,72,081 2. 01.02.2006 8,50,000 86,700 9,36,700 3. 10.02.2006 16,50,000 1,68,300 18,18,300 4. 12.02.2006 10,20,000 1,04,040 11,24,040 5. 27.02.2006 9,80,000 99,960 10,79,960 6. 02.03.2006 43,70,000 4,45,740 48,15,740 7. 04.03.2006 80,000 8,160 88 , 160 TOTAL 1,14,65,500 11,69,481 1,26,34,981 7. THUS, A PERUSAL OF THE REASONS RECORDED BY THE AO SHOWS THAT THE DIFFERENCE OF RS. 11,69,481 / - HAS BEEN PAID IN EXCESS WHICH HAS ESCAPED ASSESSMENT WHEREAS THE DIFFERENCE IS NOTHING BUT SERVICE TAX CHARGED BY M/S MARUTI PAPER LTD. EVEN THOUGH THESE DETAILS WERE AVAILABLE BEFORE THE AO, WE FIND THE AO WITHOUT APPLYING HIS MIND PROPERLY HAS REOPENE D THE ASSESSMENT BY RECORDING REASONS. WE THEREFORE, FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) IN HOLDING THAT THE ASSESSEE HAD DISCLOSED ALL THE FACTS IN THE ORIGINAL ASSESSMENT AND AO CANNOT REOPEN THE ASSESSMENT IN ABSENCE OF ANY CHANGE IN THE MATERI AL FACTS. 7.1 SO FAR AS GROUNDS RAISED BY THE REVENUE ARE CONCERNED, IT HAS BEEN MENTIONED THAT THE REOPENING WAS MADE ON THE BASIS OF INDEPENDENT INFORMATION IN THE FORM OF ENQUIRY REPORT OF INVESTIGATION WING SUGGESTING THAT PAYMENT TO M/S MARUTI PAPER LTD., WAS BOGUS. HOWEVER, REASONS RECORDED SHOWS THAT THERE WAS ESCAPEMENT OF INCOME TO THE - TUNE OF RS. 11,69,481/ - . AS MENTIONED EARLIER, THE ABOVE AMOUNT IS NOTHING BUT THE SERVICE TAX CHARGED BY M/S MARUTI PAPER LTD. SINCE, ALL THE - MATERIAL FACTS NECES SARY FOR COMPLETION OF 10 ITA NO. 5485/DEL/2014 ASSESSMENT WERE AVAILABLE IN THE PROCEEDINGS U/S 153A/143(3) PROCEEDINGS, THEREFORE - , IN ABSENCE OF ANY TANGIBLE MATERIAL AVAILABLE BEFORE HIM, THE AO, IN OUR OPINION, CANNOT REOPEN THE ASSESSMENT ON THE BASIS OF SAME SET OF FACTS. R EOPENING IN THE INSTANT CASE IS NOTHING BUT BASED ON MERE CHANGE OF OPINION ON THE SAME SET OF FACTS WHICH IS NOT PERMISSIBLE UNDER LAW. THE VARIOUS DECISIONS RELIED UPON BY CIT(A) FULLY SUPPORT THE CASE OF THE ASSESSEE. IN VIEW OF OUR ABOVE DISCUSSION AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE AGAINST THE FINDINGS GIVEN BY CIT(A), WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) QUASHING THE REASSESSMENT PROCEEDINGS. THE GROUNDS RAISED BY THE REVENUE ARE THEREFORE, DISMISSED. 9. THUS, R ESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL (SUPRA), WE UPHOLD THE FINDING OF THE LD. CIT - ( A ) ON THE ISSUE IN DISPUTE. ACCORDINGLY GROUND OF THE APPEAL IS DISMISSED. 10. IN THE RESULT , APPEAL OF TH E R EVENUE IS DISMISSED. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 3 R D J A N . , 201 7 . S D / - S D / - ( AMIT SHUKLA ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 R D J A N U A R Y , 201 7 . RK / - (D.T.D) COPY FORWARDED TO: APPELLANT RESPONDENT CIT CIT(A) DR ASST. REGISTRAR, ITAT, NEW DELHI