M/s BSN Joshi & Sons Ltd, Khurda V. ACIT, Bhubaneswar

ITA 6/CTK/2011

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5782 (ITAT-CUTTACK)
• Duration Of Justice: 8 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 05-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P C SETHI
• Keywords: Reopening of assessment; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings; TDS
• Section: 147; 145; 148; 143(3)

Judgement Text

P A G E 1 | 10 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO .0 6 /CTK/201 1 ASSESSMENT YEAR : 2 00 3 - 2004 M/S. BSN JOSHI & SONS LTD.,JOSHI HOUSE, RAJA BAZAR, JATNI, KHURDA VS. ACIT , CIRCLE 2(1) , BHUBANESWAR PAN/GIR NO. AACCB 0427 B (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.C.SETHI , AR REVENUE BY : SHRI SUBHENDU DUTTA, DR DATE OF HEARING : 07 / 0 8 / 201 9 DATE OF PRONOUNCEMENT : 08 / 0 8 / 201 9 O R D E R PER C.M.GARG,JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 22.10.2010 OF THE CIT(A) - II, BHUBANESWAR FOR THE ASSESSMENT YEAR 200 3 - 04 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ORDER OF THE AO AND CONFIRMED BY THE CIT(A) IS ERRONEOUS, ILLEGAL, ARBITRARY AND CONTRARY TO THE EVIDENCE ON RECORD. 2. THAT, THE LEARNED CIT (A) HAS COMMITTED SERIOUS ERROR IN NOT CONSIDERING THE WRITTEN SUBMISS ION AND THE ARGUMENTS MADE DURING THE COURSE OF APPEAL BY THE APPELLANT AND HAS PASSED THE ORDER IN AN ARBITRARY AND CRYPTIC MANNER WHICH IS CONTRARY TO THE DECISIONS OF THE HON'BLE APEX COURT AND FOR THAT MATTER THE APPELLATE ORDER OF THE CIT (A) AS WELL THE LEARNED ASSESSING OFFICER IS LIABLE TO BE QUASHED AND/OR ANNULLED. ITA NO.0 6 /CTK/2011 ASSESSMENT YEAR : 200 3 - 04 P A G E 2 | 10 3. THAT, THE LEARNED CIT (A) HAS COMMITTED SERIOUS ERROR IN NOT QUASHING THE NOTICE U/S 148 OF THE ACT ALONG WITH ASSESSMENT ORDER AND DEMAND NOTICE WHEN THE APPELLANT HAS DISCLOSED ALL MATERIAL OF FACTS TRULY AND FULLY BEFORE THE LEARNED ASSESSING OFFICER IN THE RETURN OF INCOME & DURING THE COURSE OF ASSESSMENT U/S 143(3) OF THE ACT. 4. THAT, THE LEARNED CIT (A) HAS COMMITTED SERIOUS ERROR BY CONFIRMING THE ADDITION OF RS. 33,50,534/ - AS UNDER DISCLOSING OF RECEIPT WHICH IS CONTRARY TO THE EVIDENCE ON RECORD AND IS LIABLE TO BE DELETED. 3 . GROUND NO.1 OF APPEAL IS GENERAL IN NATURE AND HENCE, REQUIRES NO SEPARATE ADJUDICATION. 4 . IN GROUND NOS.2 & 3, THE ASSESSEE HAS C HALLENGED THE REOPENING OF ASSESSMENT U/S.147 BY ISSUING NOTICE U/S.148 OF THE ACT. 5 . BRIEFLY STATED THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF COAL TRADING AND TRANSPORTATION. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/ S.143(3) OF THE ACT ON 30.3.2006 DETERMINING THE TOTAL INCOME OF RS.97,27,960/ - AND DEMAND OF RS.29,12,835/ - WAS RAISED AND, THEREAFTER, AFTER GIVING APPEAL EFFECT, THE DEMAND WAS REDUCED TO RS.46,613/ - . HOWEVER, THE ASSESSMENT WAS SUBSEQUENTLY REOPENED B Y ISSUANCE OF NOTICE U/S.148 SERVED ON THE ASSESSEE ON 17.3.2009. THE REASONS FOR WHICH THE ASSESSMENT WAS REOPENED WERE STATED TO BE AS FOLLOWS: 1. THE ASSESSEE HAD SHOWN RS.1,47,91,276/ - AS INCOME FROM SUPERVISION AND SERVICE CHARGES WHEREIN AS PER THE TDS CERTIFICATES THE TOTAL RECEIPTS FROM SUPERVISION AND SERVICE CHARGES WAS ITA NO.0 6 /CTK/2011 ASSESSMENT YEAR : 200 3 - 04 P A G E 3 | 10 RS.1,81,50,810/ - . AS THIS WAS NOT CONSIDERED WHILE PASSING EARLIER AS SESSMENT ORDER, THERE WAS AN ESCAPEMENT OF INCOME TO THAT EFFECT. II,. FURTHER, THERE WAS UNDER DISCLOSURE OF CLOSING STOCK OF GRADE - F COAL OF RS.4,04,850/ - IN THE P&L ACCOUNT. 6 . THE ASSESSEE OBJECTED TO THE REASSESSMENT AND SUBMITTED THAT THE SUPERVISI ON CHARGES HAS BEEN RECORDED IN THE BOOKS OF ACCOUNT ON CASH BASIS I.E. ON RECEIPT BASIS, THE DIFFERENCE WAS ONLY DUE TO THE CASH BASIS OF ACCOUNTING FOLLOWED AND THAT THE ASSESSEE HAD FULLY AND TRULY DISCLOSED ALL THE MATERIAL FACTS NECESSARY FOR HIS ASSE SSMENT, AND THAT, ON THE FACTS OF HIS CASE, REASSESSMENT PROCEEDINGS CANNOT BE INITIATED. THE ASSESSING OFFICER, HOWEVER, DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND OBSERVED AS FOLLOWS: 1) THOUGH IT IS CLAIMED BY THE ASSESSEE THAT THE RECEIPTS ON ACCOUNT OF SUPERVISION & SERVICE CHARGES HAVE BEEN ACCOUNTED FOR IN THE BOOKS IN CASH BASIS, NO DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CLAIM WAS PRODUCED BY THE A/R FOR VERIFICATION DURING THIS ASSESSMENT PROCEEDINGS. 2) FROM THE TDS CERTIFICATES SO FUR NISHED ALONG WITH THE RETURN, IT IS SEEN THAT THERE WERE RECEIPTS ON ACCOUNT OF SUPERVISION & SERVICE CHARGES OF RS.1,81,50,810/ - . HOWEVER, RECEIPTS OF RS.1,47,91,276/ - HAVE BEEN CONSIDERED AS INCOME BY THE ASSESSEE BEI NG RECEIVED DURING THE YEAR AND REST RECEIPTS OF RS.33,59,534/ - THOUGH NOT RECEIVED BUT ACCRUED DURING THE YEAR HAVE NOT BEEN CREDITED TO THE P & L A/C. THE CONTROVERSY HERE REVOLVES AROUND CHARGEABILITY OF SUPERVISION & SERVICE CHARGES TO THE TAX WHICH EV EN THOUGH TECHNICALLY ACCRUED AS PER THE MERCANTILE - SYSTEM OF ACCOUNTING BEING FOLLOWED BY THE ASSESSEE, BUT THE SAME WAS NOT ACCOUNTED FOR AS INCOME IN VIEW OF THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE WHEREIN THERE WAS DISPUTE REGARDING ULTIMATE C OLLECTION OF SUCH RECEIPTS. UNDER THE INCOME TAX ACT 1961, INCOME CHARGEABLE TO TAX IS THE INCOME RECEIVED OR DUE TO BE ITA NO.0 6 /CTK/2011 ASSESSMENT YEAR : 200 3 - 04 P A G E 4 | 10 RECEIVED IN INDIA IN THE PREVIOUS YEAR, OR INCOME THAT ACCRUES OR ARISES OR IS DEEMED TO. ACCRUE OR ARISE IN INDIA DURING SUCH YEAR. THE COMPUTATION OF SUCH INCOME IS TO BE MADE IN ACCORDANCE WITH THE METHOD OF ACCOUNTING REGULARLY EMPLOYED BY THE ASSESSEE. NO DOUBT THE INCOME TAX ACT 1961 TAKES INTO ACCOUNT TWO POINTS OF TIME AT WHICH THE LIABILITY TO TAX IS ATTRACTED VIZ., THE ACCRUAL OF INCOME OR ITS RECEIPT; BUT THE SUBSTANCE OF THE MATTER IS THE INCOME. THE PROVISIONS OF SEC. 145 OF THE ACT DETERMINES THE METHOD OF COMPUTING THE TAXABLE INCOME, IT DOES NOT EFFECT THE RANGE OF TAXABLE INCOME OR THE AMBIT OF TAXATION. 3) IT IS NOT UNDERSTOOD WHY THE A.R HAS EXPLAINED ABOUT THE HYBRID SYSTEM OF ACCOUNTING IN HIS SUBMISSION UNLESS THE SAME WAS QUESTIONED EITHER IN THIS ASSESSMENT PROCEEDINGS OR EARLIER. 4) THE CASE LAWS CITED BY THE A.R RELATE TO CASES OF MUCH EARLIER PERIOD AND TH EREAFTER AMENDMENT WAS MADE BY THE TAXATION LAWS (AMENDMENT) ACT TO THE PROVISIONS OF SECTION 145 OF THE I.T. ACT. 5) AS REGARDS DISCLOSURE OF CLOSING STOCK OF GRADE - F COAL OF RS.4,04,850/ - IN THE P&L ACCOUNT, THE A.R WAS ALSO NOT ABLE TO FURNISH ANY SATI SFACTORY EXPLANATION AS WELL AS DOCUMENTARY EVIDENCE IN SUPPORT OF THE SAME. 7 . AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) ALSO REJECTED THE SUBMISSION OF THE ASSESSEE AND UPHELD THE VALIDITY OF REASSESSMENT PROCEEDINGS OBSERVING THAT FROM ASSESSMENT YEAR 1989 - 90 ONWARDS REOPENING CAN BE DONE IF AO HAD REASON TO BELIEVE THAT INCOME ESCAPED ASSESSMENT EVEN THOUGH THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE AND REFER RED TO VARIOUS JUDICIAL PRONOUNCEMENT ON THIS ISSUE. 8 . BEING AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US . ITA NO.0 6 /CTK/2011 ASSESSMENT YEAR : 200 3 - 04 P A G E 5 | 10 9 . LEARNED A.R. SUBMITS THAT THE SUPERVISION CHARGES HA VE BEEN RECORDED IN THE BOOKS OF ACCOUNT ON CASH I.E. ON RECEIPT BASIS AND THE DIFF ERENCE WAS ONLY DUE TO CASH BASIS OF ACCOUNTING FOLLOWED AND THE ACCRUAL BASIS OF ACCOUNTS MAINTAINED BY THE ORGANISATIONS ISSUED TDS CERTIFICATES. HE SUBMITTED THAT AS PER THE BOOKS OF ACCOUNT AND AUDITORS REPORT, THERE WAS NO CLOSING STOCK OF GRADE - F COAL AS ON 31.3.2009 AND THERE IS NO UNDERSTATEMENT OF CLOSING STOCK OF GRADE - F COAL. LEARNED A.R. SUBMITS THAT ONCE ALL THESE DETAILS WERE BEFORE THE ASSESSING OFFICER, AND ON THESE FACTS, HE DECIDED NOT TO MAKE DISALLOWANCE , THE ASSESSING OFFICERS DEC ISION TO INITIATE REASSESSMENT PROCEEDINGS ON THE SAME ISSUE, WITHOUT ANY NEW TANGIBLE MATERIAL BEFORE HIM, IS NOTHING BUT A FRESH APPLICATION OF MIND ON THE SAME FACTS IS NOT PERMISSIBLE UNDER THE SCHEME OF THE INCOME TAX ACT . HE ALSO SUBMITTED THAT RE - O PENING OF ASSESSMENTS PASSED U/S.143(3) AFTER 4 YEARS FROM THE END OF THE ASSESSMENT YEAR CANNOT BE MADE UNLESS INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT. IN THIS CASE ALL THE MATERIAL FACTS WERE AVAILABLE ON RECORD THEREFORE; IT CANNOT BE REOPENED MERELY ON ACCOUNT OF CHANGE OF OPINION . IF THE ORIGINAL ASSESSMENT WAS PASSED AFTER CONSIDERING VARIOUS SUBMISSIONS AND FACTS ON RECORD, ASSESSMENT CANNOT BE REOPENED U/S.147 PARTICULARLY, IF THERE IS NO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESS ARY FOR ASSESSMENTS. HE ITA NO.0 6 /CTK/2011 ASSESSMENT YEAR : 200 3 - 04 P A G E 6 | 10 REFERRED TO THE DECISIO N OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. KELVINATOR INDIA LTD. (2010) 310 ITR 561 (SC). LD A.R. SUBMITTED THAT THE ASSESSMENT YEAR INVOLVED IN THIS APPEAL IS 2002 - 03 AND NOTICE U/S.148 OF THE ACT HA S BEEN ISSUED AND SERVED ON THE ASSESSEE ON 17.3.2009. HE SUBMITTED THAT NOTICE U/S.148 OF THE ACT HAS TO BE ISSUED FROM THE END OF THE RELEVANT ASSESSMENT YEARS AND SINCE THIS HAS NOT BEEN DONE, THE REOPENING OF ASSESSMENT IS BAD IN LAW AND SAME SHOULD B E ANNULLED. 1 0 . REPLYING TO ABOVE, LD D.R. SUPPORTED THE ORDERS OF LOWER AUTHORITIES BELOW. 1 1 . WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD OF THE TRIBUNAL. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KELVINATOR INDIA LTD. (2010) 310 ITR 561 (SC), WHEREIN NEWLY SUBSTITUTED PROVISION OF SECTION 147 OF THE ACT WITH EFFECT FROM 01 .04.1989 IS INTERPRETED BY OBSERVING, THAT SECTION 147 OF THE ACT, AS SUBSTITUTED W.E.F. 01.04.1989 DOES NOT POSTULATES CONFERMENT OF POWER UPON THE ASSESSING OFFICER TO INITIATE REASSESSMENT PROCEEDING UPON HIS MERE CHANGE OF OPINION. FURTHER, IF 'REASON TO BELIEVE' OF THE ASSESSING OFFICER IS FOUNDED ON AN INFORMATION WHICH MIGHT HAVE BEEN RECEIVED BY THE ASSESSING OFFICER AFTER THE COMPLETION OF ASSESSMENT, IT MAY BE A SOUND FOUNDATION FOR EXERCISING THE POWER UNDER SECTION 147 R.W.S. 148 OF THE ACT. IT CANNOT BE ACCEPTED THAT ONLY BECAUSE IN THE ASSESSMENT ORDER, DETAILED REASONS HAVE ITA NO.0 6 /CTK/2011 ASSESSMENT YEAR : 200 3 - 04 P A G E 7 | 10 NOT BEEN RECORDED, AN ANALYSIS OF THE MATERIALS ON THE RECORD BY ITSELF MAY BE JUSTIFYING THE ASSESSING OFFICER TO INITIATE A PROCEEDING U/S. 147 OF THE ACT. WHEN A REGULAR ORDER OF ASSESSMENT IS PASSED U/S 143(3) OF THE ACT, THE PRESUMPTION CAN BE RAISED THAT SUCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND. WE A LSO FIND THAT IN THE PRESENT CASE FROM THE REASONS RECORDED, AS REPRODUCED HEREIN ABOVE, IT IS CLEARLY DISCERNIBLE THAT THERE IS NO ALLEGATION BY THE AO ALLEGING THAT THERE WAS FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT. WE ALSO FIND THE INITIATION OF REASSESSMENT PROCEEDINGS BEYOND THE PRESCRIBED PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, WAS CLEARL Y WITHOUT SUCH ALLEGATION IN THE REASONS IS F ETAL FOR THE REVENUE. 12 . T HIS IS SO, SINCE THE REASSESSMENT PROCEEDINGS ARE COMMENCED UNDER SECTION 147 OF THE ACT, AND THE FIRST PROVISO TO SECTION 147 MANDATES, INTER ALIA, THAT WHERE AN ASSESSMENT UNDER SECTION 143(3) OF THE ACT HAS BEEN MADE, NO ACTION SHALL BE TAKEN UNDER SEC TION 147 OF THE ACT, AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AN D TRULLY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT. IN PRESENT CASE, THE ASSESSMENT YEAR INVOLVED IS 2002 - 03 AND THE NOTICE U/S.148 OF THE ACT HAS BEEN ISSUED ON 17.3.2009, WHICH IS BEYOND FOUR YEARS FROM THE END OF ITA NO.0 6 /CTK/2011 ASSESSMENT YEAR : 200 3 - 04 P A G E 8 | 10 THE RELEVANT ASSESSMENT YEAR. WE ALSO FIND THAT NO TANGIBLE MATERIAL HAS COME TO THE KNOWLEDGE OF THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT U/S.147 OF THE ACT. 13 . AT THIS JUNCTURE, WE ALSO FIND IT APPROPRIATE TO CONSDIER THE APPLICABILITY OF THE RASIO OF THE DECISION OF HON'BLE DE LHI HIGH COURT IN THE CASE OF HARYNA ACRYLIC MANUFACTURING CO. VS CIT & ORS, 308 ITR 38(DEL) AND IN THE CASE OF SABH INFRASTRUCTURE LTD VS ACIT, 398 ITR 198 (DEL) HAS VEHEMENTLY RELIED UPON BY LD A.R. PRESSING INTO WITH REFERENCE TO LEGAL GROUND OF THE ASS ESSEE, WHEREIN, IT HAS BEEN HELD THAT WHEN THE ASSESSING OFFICER INTENDS TO INITIATE REASSESSMENT PROCEEDINGS AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, THEN IT IS INCUMBENT UPON HIM TO BRING ON RECORD AT THE TIME OF RECORDING REASONS ABOUT THE ALLEGATION OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIALS FACTS NECESSARY FOR HIS ASSESSMENT. THE RELEVANT PART OF THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF SABH INFRASTRUCTURE LTD (SUPRA) READS AS FOLLOWS: WHERE ASSESSEE COULD NOT BE SAID TO HAVE FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS THEN ASSUMPTION OF JURISDICTION UNDER SECTIONS 147 AND 148 OF THE ACT WAS ERRONEOUS AND NOTICE ISSUED FOR REASSESSMENT SHOULD BE QUASHED . 14. AS WE HAVE NOTED ABOVE THAT SINCE THE REASSESSMENT PROCEEDINGS HAVE BEEN INITIATED BY THE ASSESSING OFFICER U/S.147 OF THE ACT AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR 2003 - 04 BY ISSUING NOTICE U/S.148 OF THE ACT ON 17.3.2009 , THEN THE MANDATE OF FIRST ITA NO.0 6 /CTK/2011 ASSESSMENT YEAR : 200 3 - 04 P A G E 9 | 10 PROVISO TO SECTION 147 OF THE ACT REQUIRES THAT IN THE REASONS SUCH ALLEGATION SHOULD HAVE BEEN MENTIONED AND CONTAINED THAT THE ASSESSEE HAS FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THA T BECAUSE OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT AND THAT BECAUSE OF THIS FAILURE, THERE HAS BEEN AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX. 15. IN THE PRESENT CASE FROM THE REAS ONS RECORDED BY THE ASSESSING OFFICER WHILE INITIATING REASSESSMENT PROCEEDINGS U/S.147 OF THE ACT AND PRIOR TO ISSUANCE OF NOTICE U/S.148 OF THE ACT, THERE IS NO WHISPER WHAT TO SPEAK OF ANY ALLEGATION THAT THE ASSESSEE HAD FAILED TO DISCLOSE FULLY AND TR ULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT ON THE ISSUES OF SUPERVISION AND SERVICES CHARGES AND DIFFERENCE IN THE FIGURES SHOWN BY IT IN THE RESPECTIVE TDS CERTIFICATE AND ON THE ISSUE OF UNDER DISCLOSURE OF CLOSING STOCK OF GRADE - F COAL. MERELY HAV ING A REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT IS NOT SUFFICIENT TO REOPEN THE ASSESSMENT BEYOND FOUR YEARS PERIOD AS PER FIRST PROVISO TO SECTION 147 OF THE ACT. THE ESCAPEMENT OF INCOME FROM ASSESSMENT MUST ALSO BE OCCASIONED DUE TO THE FAIL URE ON THE PART OF THE ASSESSEE TO DISCLOSE MATERIAL FACTS, FULLY AND TRULY. THIS IS A NECESSARY CONDITION FOR OVERCOMING THE BAR SET UP BY THE PROVISO TO SECTION 147 OF THE ACT AND IF THIS CONDITION IS NOT SATISFIED, THE RIGOUR WOULD OPERATE AGAINST THE A SSESSING OFFICER AND NO ACTION UNDER SECTION 147 COULD BE TAKEN AGAINST THE ASSESSEE. ITA NO.0 6 /CTK/2011 ASSESSMENT YEAR : 200 3 - 04 P A G E 10 | 10 1 6 . IN VIEW OF FOREGOING DISCUSSION AND F ROM THE ABOVE FACTS OF THE CASE AND FOLLOWING THE DECISION S QUOTED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE REASSESSMENT ORDER U/S. 147 R.W.S. 143(3) OF THE ACT IS BAD IN LAW A HENCE, SAME IS QUASHED AND THE GROUND NO. 2 & 3 OF APPEAL OF THE ASSESSEE ARE ALLOWED. 1 7 . SINCE WE HAVE QUASHED THE REASSESSMENT ORD ER U/S.147/ 251/ 143(3) OF THE ACT DATED 31.12.2009 , OTHER GROUND RAISED BY THE ASSESSEE ON MERITS OF THE ADDITIONS HA S BECOME INFRUCTUOUS AND HENCE, NOT ADJUDICATED . 1 8 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 08 / 0 8 /201 9 . S D/ - SD/ - (LAXMI PRASAD SAHU) ( CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 08 / 0 8 /20 9 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : M/S. BSN JOSHI & SONS LTD.,JOSHI HOUSE, RAJA BAZAR, JATNI, KHURDA 2. THE RESPONDENT. ACIT (OSD), RANGE - 2, BHUBANESWAR 3. THE CIT(A) - II , BHUBANESWAR 4. PR.CIT - II , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//