Rajendra Kumar Agrawal, Kolkata V. ITO, Ward - 36(1), Kolkata , Kolkata

ITA 592/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8245 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 26-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C J SINGH
• Assessee Lawyers: A K TIBREWAL
• Keywords: Reopening of assessment; Transactions in derivatives; Competent authority; Reason to believe; Reassessment proceedings
• Section: 143(1); 147; 148

Judgement Text

1 ITA NO. 592/KOL/2019 SHRI RAJENDRA KUMAR AGRAWAL, AY 2010-11 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 592/KOL/2019 ASSESSMENT YEAR: 2010-11 SHRI RAJENDRA KUMAR AGRAWAL (PAN: ADCPA 9872 H) VS. ITO, WARD 36(1), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 25.06.2019 DATE OF PRONOUNCEMENT 17.07.2019 FOR THE APPELLANT SHRI A.K. TIBREWAL, FCA & SHRI AM IT AGARWAL, ADVOCATE FOR THE RESPONDENT SHRI C.J. SINGH, ADDL. CIT, DR ORDER PER SHRI A. T. VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A) 10, KOLKATA DATED 28.05.2019 FOR ASSESSMENT YEAR 2010-1 1. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST TH E ACTION OF THE LD. CIT(A) IN UPHOLDING THE ACTION OF THE AO TO REOPEN THE ASSESS MENT OF ASSESSEE THOUGH THE REASONS RECORDED BY AO TO REOPEN THE ASSESSMENT WHICH WAS F URNISHED TO THE ASSESSEE DID NOT HAVE ANY LINK OR NEXUS WITH THE ESCAPEMENT OF INCOME FOR AY 2010-11 WHEREAS THE REASONS RECORDED RELATED TO ESCAPEMENT OF INCOME IN THE MON TH OF MARCH, 2009 WHICH PERTAINS TO AY 2009-10 AND NOT AY 2010-11. 3. BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE HAD FILED ITS ORIGINAL RETURN OF INCOME FOR AY 2010-11 ON 16.09.2010 DECLARING AN INCOME OF RS. 6,96,350/-. THE ORIGINAL RETURN WAS PROCESSED UNDER 143(1) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) ON 29.04.2011. THEREAFTER, THE AO TOOK NOTE OF AN I NFORMATION ABOUT A BENEFICIARY CLIENT 2 ITA NO. 592/KOL/2019 SHRI RAJENDRA KUMAR AGRAWAL, AY 2010-11 WHO HAVE TAKEN LOSSES AND SHIFTED OUT PROFITS DURIN G FY 2008-09 TO 2011-12 WHICH WAS RECEIVED IN HIS OFFICE AND PERUSAL OF THE INFORMATI ON REVEALED DURING AY 2010-11, THE ASSESSEE HAS SHIFTED OUT PROFITS ON DERIVATIVES TRA DING TO THE TUNE OF RS. 18,79,691/- BY WAY OF MODIFICATION OF CLIENT CODE THROUGH NATIONAL STO CK EXCHANGE WHICH WAS DETECTED IN THE COURSE OF INVESTIGATION CARRIED OUT BY ADIT (INV.), AHMEDABAD. THUS, ACCORDING TO THE AO FROM THE AFORESAID INFORMATION, HE HAD REASON TO BE LIEVE ESCAPEMENT OF INCOME TO THE TUNE OF RS. 18,79,691/- AND PROPOSED TO REOPEN THE ASSES SMENT OF THE ASSESSEE FOR AY 2010-11 AND ISSUED NOTICE U/S 148 OF THE ACT DATED 28.03.20 17 AND THEREAFTER, HE MADE REASSESSMENT ORDER DATED 28.12.2017 AND DISALLOWED RS. 18,79,691 /-. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) RAISING THE VERY SAME LEGAL ISSUE WHICH WAS REPELLED BY THE LD. CIT(A) BY OBSERVING AS UNDER: 1. I HAVE CAREFULLY EXAMINED THE VARIOUS ISSUES RAI SED BY THE APPELLANT IN THE GROUNDS TAKEN ABOVE. I HAVE ALSO CAREFULLY CONSIDERED THE ACTION OF THE LD. A.O. IN MAKING THE IMPUGNED ADDITION OF RS.18,79,691/- TO THE RETUNED INCOME OF THE ASSESSEE-INDIVIDUAL. 2. THE GROUNDS RELATING TO THE CHALLENGE OF THE REO PENING OF THE MATTER ARE TAKEN UP FIRST FOR ADJUDICATION. I HAVE CAREFULLY EXAMINED THE REASONS RECORDED BY THE LD. A.O. IN REOPENING THE ASSESSMENT FOR THE YEAR 2010-11, AS WELL AS THE SUB MISSIONS OF THE APPELLANT IN THE MATTER, CHALLENGING THE REOPENING. I FIND THAT IN THIS CASE THE REOPENING HAS BEEN DONE BY THE LD. A.O. ON THE BASIS OF RECEIPT OF CERTAIN INFORMATION BY H IM FROM THE INVESTIGATION WING AT AHMADABAD. IN THIS CASE, AS HAS ALSO BEEN SUBMITTED BY THE APPELLANT, ONLY PROCESSING U/S 143(1) OF THE INCOME TAX ACT, 1961 HAD BEEN DONE EA RLIER AND THERE HAD BEEN NO SCRUTINY OF THE RETURN. THAT BY ITSELF, IN MY CONSIDERED VIEW DOES NOT PRECLUDE THE MATTER FROM BEING REOPENED BY THE LD. AO, AS HE HAS DULY OBTAINED THE NECESSAR Y PERMISSION FROM THE COMPETENT AUTHORITY. IT IS ALSO SEEN THAT THE LD. AO HAS SUPPLIED THE RE ASONS FOR REOPENING TO THE APPELLANT DURING THE COURSE OF THE SCRUTINY. IT IS SEEN THAT THE LD, AO HAS DULY RECORDED THAT AFTER VERIFICATION OF THE OFFICE RECORD, AND ON THE BASIS OF CERTAIN INFORMAT ION RECEIVED FROM THE INVESTIGATION WING AT AHMEDABAD, IT CAME TO THE LIGHT THAT THE ASSESSEE D URING THE FINANCIAL YEAR 2008-09 HAD AVAILED OF CONTAIN DUBIOUS ENTRIES AMOUNTING TO RS. 18,79,6 91/- FROM THE BROKER, M/S. MILLENNIUM STOCK BROKING PVT. LTD., AND HAS AVAILED CERTAIN ENTRIES CREATED BY THE BROKER BY USE OF CLIENT CODE MODIFICATION (CCM) . THE LD. AO HAS ALSO RECORDED THAT THE ABOVE INFOR MATION, PRIMA FACIE, INDICATED THAT THE ASSESSEE HAD ENTERED INTO ACCOMM ODATION ENTRIES THROUGH FRAUDULENT PURCHASE / SALE OF CERTAIN SCRIPTS BY CLIENT CODE M ODIFICATION, SO THAT THERE WOULD BE FICTITIOUS LOSSES / PROFITS. ACCORDINGLY, NOTICE UNDER SECTION 148 WAS SERVED ON THE ASSESSEE BY THE LD. AO WITH THE 'REASON TO BELIEVE' THAT ITS INCOME TO THE EXTENT OF RS. 37,57,789/- FOR THE ASSESSMENT YEAR 2009-10 . DURING THE APPEAL PROCEEDINGS ALSO, THE APPELLANT HAS RAISED SEVERAL POINTS, INTER-ALIA CHALLENGING THE REASSESSMENT PROCEEDINGS ON GROUNDS THAT THE AO HAD NOT ACTED IN THE 'BELIEF', BUT ON MERE 'SATISFACTION', AND THAT THERE HAD BEEN NO APPLICATION OF MIND BY THE LD. AO, AND THAT THE REASSESSMENT PROCEEDINGS WERE VOID AB INITIO, AS THE REASONS FOR REOPENING OF THE CASE HAD NOT BEEN SUPPLIED IN TIME TO THE AP PELLANT. THIS HOWEVER, I FIND TO BE WITHOUT ANY SUBSTANCE, AS I FIND THAT THE LD. AO HAD OBSERVED E ACH AND EVERY GUIDELINE RELATING TO THE 3 ITA NO. 592/KOL/2019 SHRI RAJENDRA KUMAR AGRAWAL, AY 2010-11 PROCEDURE FOR REOPENING OF THE CASE AT HAND. IN THI S MATTER, THE FOLLOWING JUDICIAL PRECEDENTS ELUCIDATE THE PRINCIPLE INVOLVED. AS REGARDS, THE M UCH DEBATED EXPRESSION 'HAS REASON TO BELIEVE', THE SAME HAS BEEN HELD TO HAVE MUCH LARGE R AND WIDER THAN IS SATISFIED. THE HONBLE COURTS HAVE HELD THAT THESE REASONS AS RECO RDED BY THE ASSESSING OFFICER MUST HAVE A PROXIMATE AND LIVE LINK WITH THE INFORMATION OF B ELIEF. THIS I FIND TO BE TRUE IN THE CASE AT HAND. INFORMATION FOR REOPENING HAS BEEN EXPLAINE D IN DETAIL BY SEVERAL JUDICIAL PRONOUNCEMENTS. INFORMATION MAY COME FROM EXTERNAL SOURCES OR EVEN FROM MATERIALS ALREADY ON RECORD OR MAY BE DERIVED FROM THE DISCOVERY OF N EW AND IMPORTANT MATTER OR FRESH FACTS WORD INFORMATION WOULD ALSO INCLUDE TRUE AND CORR ECT STATE OF LAW DERIVED FROM RELEVANT JUDICIAL DECISIONS EITHER OF THE I.T. AUTHORITIES O R COURTS OF LAW WHETHER THE GROUND ON WHICH THE ORIGINAL ASSESSMENT IS BASED IS HELD TO BE ERRO NEOUS BY SUPREME COURT IN SOME OTHER CASE, THAT WILL ALSO AMOUNT TO A FRESH INFORMATION WHICH COMES INTO EXISTENCE SUBSEQUENT TO THE ORIGINAL ASSESSMENT TAXPAYER WOULD NOT BE ALLOWED TO TAKE ADVANTAGE OF AN OVERSIGHT OR MISTAKE COMMITTED BY THE TAXING AUTHORITY [KALYANJI MAVJI & CO. VS CIT (SC) 102 ITR 287]. 8. IN VIEW OF THE ABOVE, I FIND THAT THE AO HAD RIG HTLY REOPENED THE ASSESSMENT, AFTER OBSERVING ALL THE PROCEDURES AND LEGAL REQUIREMENTS, ON THE B ASIS OF PRIMA FACIE INFORMATION AVAILABLE WITH HIM. THE ACTION OF THE LD. AO IN SUCH MATTERS IS THEREFORE UPHELD, AND THE GROUND TAKEN BY THE APPELLANT-COMPANY IN THESE MATTERS STAND DISMIS SED.[EMPHASIS GIVEN BY US ] 4. AGGRIEVED BY THE AFORESAID DECISION OF THE LD. C IT(A), THE ASSESSEE IS BEFORE US. THE LD. AR ASSAILING THE ORDER OF THE LD. CIT(A) DREW O UR ATTENTION TO THE DIFFERENT REASONS FURNISHED BY THE AO IN-ORDER TO RE-OPEN THE ASSESSM ENT TO THE ASSESSEE. OUR ATTENTION WAS DRAWN TO PAGE NO 4 TO 5 WHICH IS A LETTER WRITTEN B Y THE AO DATED 02.05.2017 WHEREIN HE HAS FORWARDED THE REASONS WHICH IS PLACED AT PAGE 5 OF THE PAPER BOOK. THEREAFTER THE LD. AR DREW OUR ATTENTION TO PAGE 6 & 7 OF THE PAPER BOOK WHICH IS ANOTHER LETTER WRITTEN BY THE AO DATED 18.05.2017 GIVING THE REASONS PLACED AT PA GE 7 OF THE PAPER BOOK. ACCORDING TO THE LD. AR, THOUGH CERTAIN LINES ARE NOT THERE IN R EASONS GIVEN IN PAGE 7 COMPARED WITH REASONS GIVEN AT PAGE NO 5, THE SUBSTANCE OF THE RE ASONS IS ABOUT SOME BROKERS BY MISUSING CLIENT CODE MODIFICATION (CCM) FACILITY IN THE F & O SEGMENT OF NSE DURING MARCH 2009 WHICH ACCORDING TO AO THE BENEFICIARY LIKE ASSESSEE CREATED FICTITIOUS PROFITS AND LOSS AND SHIFTED THE SAME TO THEIR CLIENTS AS PER THE REQUIR EMENT AND EARNED COMMISSION. SO, ACCORDING TO THE LD. AR, THE FACTS STATED IN THE RE ASONS RECORDED REVEALS OF SOME WRONG DOING WHICH HAPPENED IN NSE DURING MARCH, 2009 WHIC H MEANS THE FACTUAL ASPECT ON WHICH THE AO FINDS INCOME ESCAPING ASSESSMENT RELAT ES TO THE FACTS PERTAINING TO MARCH 2009 WHICH UNDISPUTEDLY FALL IN AY 2009-10 AND NOT THAT OF AY 2010-11, WHICH IS THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION. IN OR DER TO APPRECIATE THE FACTS THE REASONS 4 ITA NO. 592/KOL/2019 SHRI RAJENDRA KUMAR AGRAWAL, AY 2010-11 RECORDED AND FORWARDED BY THE AO VIDE COVERING LETT ER DATED 02.05.2017 AND 18.05.2017 WHICH ARE PLACED AT PAGE 5 AND 7 OF THE PAPER BOOK IS REPRODUCED BELOW: REASONS RECORDED AT PAGE 5 WHICH WAS FORWARDED BY A O VIDE LETTER DATED 02.05.2012 IN THE INSTANT CASE, THE RETURN OF INCOME SUBMITTED BY THE ASSESSEE FOR THE AY 2010-11 ON 16.09.2010, DECLARING TOTAL INCOME OF RS. 6,96,348/ -. INFORMATION HAS BEEN RECEIVED FROM PR. DIT(INV), AH MEDABAD VIDE HIS LETTER BEARING NO. PDIT(INV.)/AHD/CCM/DISSEMINATION/15-16 DATED 08.03. 2016 AS FORWARDED BY THE ACIT.HG-5, KOLKATA DATED 18.03.2016 THAT SOME BROKERS BY MISUS ING CLIENT CODE MODIFICATION (CCM) FACILITY IN F&O SEGMENT ON NSE DURING MARCH, 2009 CREATED FICTITIOUS PROFIT AND LOSSES AND SHIFTED THE SAME TO THEIR CLIENTS AS PER THE REQUIR EMENT AND EARNED COMMISSION. THE CLIENTS HAVE TAKEN FICTITIOUS LOSSES TO SET OFF AGAINST THEIR PR OFITS WITH A VIEW TO REDUCE THEIR TAX LIABILITIES. SOME OF THE CLIENTS ALSO TOOK FICTITIOUS PROFIT TO COVER UP THEIR UNDISCLOSED INCOME OR TO SET OFF THIS PROFIT AGAINST HUGE LOSSES. THE DETAILS OF SUC H CCM TRANSACTIONS HAVE BEEN PROVIDED IN A CD. ON PERUSAL OF THE CD IT IS FOUND THAT THE ASSES SEE HAS MADE NET REDUCTION IN INCOME DUE TO CCM IS RS. 18,79,691/- THROUGH HIS BROKER MILLENNIU M STOCK BROKING PVT. LTD. IT IS NOT CLEAR FROM THE RETURN WHETHER ASSESSEE HA S SHIFTED OUT GENUINE PROFIT THROUGH THE ABOVE NAMED BROKER NAMELY MILLENNIUM STOCK BROKING PVT. L TD. BY USING THE DEVICE OF CCM OR NOT. BUT AS PER INFORMATION RECEIVED FROM PD IT (INV.), AHMEDABAD THE ASSESSEE HAS SHIFTED OUT HIS ORIGINAL PROFIT THROUGH THE PROCESS OF CCM WITH THE ACTIVE CONNIVANCE OF THE BROKER AS STATED ABOVE. IN VIEW OF THE ABOVE FINDINGS, I HAVE REASON TO BEL IEVE THAT THE INCOME OF RS. 18,79,691/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 14 7 OF THE I.T. ACT, 1961. SINCE FOUR YEARS, BUT NOT MORE THAN SIX YEARS, HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THE INCOME CHARGEABLE TO TAX WH ICH HAS ESCAPED ASSESSMENT AMOUNTS TO OR IS LIKELY TO AMOUNT TO ONE LAKH RUPEES OR MORE FOR THAT YEAR, THE PROPOSAL FOR ISSUE OF NOTICE U/S 148 OF THE ACT FOR THE AY 2010-11 IS HEREBY SUB MITTED FOR YOUR KIND CONSIDERATION AND DUE SANCTION U/S 151 OF THE ACT FOR ISSUE OF SUCH NOTIC E ON SATISFACTION OF THE PR. CIT-12, KOLKATA.[EMPHASIS GIVEN BY US ] REASONS RECORDED AT PAGE 7 WHICH WAS FORWARDED BY A O VIDE LETTER DATED 18.05.2017 AFTER DETAILS INVESTIGATION OF TRADE LEDGER IT REV EALED THAT SOME BROKERS BY MISUSING CLIENT CODE MODIFICATION (CCM) FACILITY IN F&O SEGMENT ON NSE D URING MARCH 2009 CREATED FICTITIOUS PROFIT AND LOSSES AND SHIFTED THE SAME TO THEIR CLIENTS AS PER THE REQUIREMENT AND EARNED COMMISSION. THE CLIENTS HAVE TAKEN FICTITIOUS LOSSES TO SET OFF AGA INST THEIR PROFITS WITH A VIEW TO REDUCE THEIR TAX LIABILITIES. SOME OF THE CLIENTS ALSO TOOK FICTITIO US PROFIT TO COVER UP THEIR UNDISCLOSED INCOME OR T O SET OFF THIS PROFIT AGAINST HUGE LOSSES. THE DETAILS OF SUCH CCM TRANSACTIONS HAVE BEEN PROVIDED IN A CD. ON PERUSAL OF THE CD IT IS FOUND THAT THE ASSESSEE HAS MADE NET REDUCTION IN INCOME DUE TO CCM IS RS. 18,79,691/- THROUGH HIS BROKER MILLENNIUM STOCK BRO KING PVT. LTD. I IS NOT CLEAR FROM THE RETURN WHETHER ASSESSEE HAS SHIFTED OUT GENUINE PROFIT THROUGH THE ABOVE NAMED BROKER NAMELY MILLENNIUM STOCK BROKING PVT. LTD. BY USING THE DEVICE OF CCM OR NOT. BUT AS PER INFORMATION RECEIVED FROM PDIT(INV.) AHMEDABAD THE ASSESSEE HAS SHIFTED OUT HIS ORIGINAL PROFIT 5 ITA NO. 592/KOL/2019 SHRI RAJENDRA KUMAR AGRAWAL, AY 2010-11 THROUGH THE PROCESS OF CCM WITH THE ACTIVE CONNIVAN CE OF THE BROKER AS STATED ABOVE. [EMPHASIS GIVEN BY US ] 5. FROM A PERUSAL OF THE AFORESAID REASONS RECORDED , WE UNDERSTAND THAT FOR AY 2010- 11, THE ASSESSEE HAS DECLARED TOTAL INCOME OF RS. 6 ,96,348/-. THE AO GOT INFORMATION FROM THE PR. DIT(INV.), AHMEDABAD VIDE HIS LETTER BEARIN G NO PDIT (INV.)/AHD/CCM/DISSEMINATION/15-16 DATED 08.03.2016 AS FORWARDED BY THE ACIT-HQ-5, KOL DATED 18.03.2016 THAT SOME BROKERS BY MISUSING CLIENT CORD MODIFICATION (CCM) FACILITY IN F & O SEGMENT ON NSE DURING MARCH, 2009 CREATED FICTITIOUS PROFITS AND LOSSES WHICH WAS SHIFTED TO THEIR CLIENTS AS PER REQUIREM ENT AND EARNED COMMISSION. FURTHER THAT THE DETAILS OF SUCH CCM TRANSACTION HAVE BEEN PROVI DED IN A CD. BY PERUSING THE SAME, THE AO FOUND THAT THE ASSESSEE HAD MADE NET REDUCTION I N INCOME DUE TO CCM TO THE TUNE OF RS. 18,79,691/- THROUGH HIS BROKER M/S. MILLENIUM STOCK BROKING PVT. LTD. FURTHER THE AO NOTED THAT IT IS NOT CLEAR FROM THE RETURN WHETHER THE ASSESSEE HAS SHIFTED OUT GENUINE PROFIT THROUGH ABOVE NAMED BROKER USING THE DEVICE OF CCM OR NOT. BUT AS PER THE INFORMATION RECEIVED FROM PDIT(INV.), AHMEDABAD, THE ASSESSEE H AS SHIFTED OUT THE ORIGINAL PROFIT THROUGH THE PROCESS OF CCM WITH THE ACTIVE CONNIVAN CE OF THE BROKER AND THEREFORE, HE HAD REASON TO BELIEVE THAT THE INCOME OF RS. 18,79,691/ - AS ESCAPED ASSESSMENT. SO WE NOTE THAT BASED ON THE INFORMATION FROM THE INVESTIGATION WIN G AHMEDABAD, THE AO RECEIVED AN INFORMATION THAT ASSESSEES BROKER BY MISUSING THE CLIENT CODE MODIFICATION FACILITY IN F & O SEGMENT ON NSE DURING MARCH, 2009 CREATED FICTITI OUS PROFITS AND LOSSES TO THE ASSESSEE WHICH FACT ACCORDING TO AO IS NOT CLEAR FROM THE RE TURN THOUGH IT HAS BEEN FOUND AS PER THE INFORMATION FROM PDIT INFORMATION. SO FROM THE REAS ONS RECORDED, WE NOTE THAT AO STATES ABOUT CERTAIN FACTUAL INCIDENT WHICH HAPPENED DURIN G MARCH, 2009 WHICH RESULTED IN ESCAPEMENT OF INCOME AND HAS NOTHING TO DO WITH THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. AY 2010-11. THEREFORE, WE FIND FORCE IN THE AR GUMENT OF THE LD. AR THAT FOR SOME INCIDENT WHICH HAPPENED IN MARCH, 2009 AS PER THE I NFORMATION OF THE INVESTIGATION WING OF AHMEDABAD, THE ASSESSMENT FOR AY 2010-11 CANNOT BE REOPENED. THEREFORE, ASSESSEE SUCCEEDS. WE ALSO NOTE THAT THE LD. CIT(A) THOUGH H AS ACCEPTED [SUPRA] THAT THE FACTUAL INCIDENT FOR WHICH RE-OPENING WAS RESORTED BY AO DO ES NOT PERTAIN TO THE FINANCIAL YEAR UNDER CONSIDERATION HOWEVER HAS WRONGLY STATED IN T HE IMPUGNED ORDER OF AN AMOUNT OF RS. 6 ITA NO. 592/KOL/2019 SHRI RAJENDRA KUMAR AGRAWAL, AY 2010-11 37,57,789/- WHICH DOES NOT EMANATE FROM THE RE-ASSE SSMENT ORDER WHICH GOES ON TO SHOW THAT LD. CIT(A) HAS NOT APPLIED HIS MIND TO THE FAC TS OF THE CASE QUA THIS ASSESSMENT YEAR AND EVEN THIS FIGURE ACCORDING TO THE LD. AR IS NOT PERTAINING TO THE AY 2009-10, FOR THIS PROPOSITION, WE RELY ON THE ORDER OF THE HONBLE SU PREME COURT IN CIT VS. KURBAN HUSSAIN IBRAIMJI MITHI BORWALA (1971) 82 ITR 921 (SC) AND T HE DECISION OF HONBLE BOMBAY HIGH COURT IN HINDUSTAN LEVERS LTD. (SUPRA) WHEREIN THE HONBLE HIGH COURT HELD THAT THE REASONS RECORDED BY THE AO TO REOPEN HAS TO BE CONS IDERED ON A STAND-ALONE BASIS AND NO ADDITION/DELETION OR ASSUMPTION OF FACTS CAN BE MAD E WHILE TESTING THE VALIDITY OF THE REASON RECORDED BEFORE REOPENING OF ASSESSMENT U/S. 147 OF THE ACT. SO THEREFORE, WE ALLOW APPEAL OF THE ASSESSEE ON THIS LEGAL ISSUE AND THEREFORE, NOT INCLINED TO ADJUDICATE THE OTHER GROUNDS/ISSUES RAISED BY ASSESSEE ON MERITS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17TH JULY, 2 019 SD/- SD/- (DR. A. L. SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17TH JULY, 2019 BISWAJIT (SR. PS) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT SHRI RAJENDRA KUMAR AGRAWAL, R.NO. 27, 4 TH FLOOR, 1, R.N. MUKHERJEE ROAD, KOLKATA 700 001. 2 RESPONDENT ITO, WARD-36(1), KOLKATA. 3 4 5 CIT(A) , KOLKATA. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR/H.O.O. ITAT, KOLKATA BENCHES