Appeal details
Counselvise Citation
[2017] 130 COUNSELVISE.COM (IT) 6484 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 4 month(s) 3 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
09-03-2017
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Next Hearing Date
23-01-2017
Assessment Year
2003-2004
Appeal Filed On
05-11-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 6017 & 6018/DEL/2014 ASSESSMENT YEAR: 2003-04 MEENAKSHI OVERSEAS (P) LTD. VS. ITO, WARD-6(3), C/O KAPIL GOEL, ADV. NEW DELHI F-26/124, SECTOR-7, CR BUILDING, ROHINI, NEW DELHI DELHI 110 085 (PAN: AAACM6576E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. KAPIL GOEL, ADV. REVENUE BY : SH. S.K. JAIN, SR. DR ORDER THE ASSESSEE HAS FILED THESE APPEALS AGAINST THE S EPARATE ORDERS DATED 23.9.2014 & 29.9.2014 OF THE LD. CIT(A )-IX, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2003-04. 2. THE GROUNDS RAISED IN ITA NO. 6017/DEL/2014 READ AS UNDER:- VALIDITY OF SERVICE OF NOTICE BY SUBSTITUTED MODE / AFFIXTURE ETC. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, LD. CIT(A) ERRED IN NOT APPRECIATING THAT SERVICE OF NOTICE BY SUBSTITUTED PROCESS (THROUGH AFFIXTURE) IN INSTANT CASE IS TOTA LLY INVALID AND FURTHER THERE IS NO VALID SERVICE OF 2 JURISDICTIONAL REOPENING NOTICE SO AS TO CONFER JURISDICTION U/S. 148 OF THE ACT. VALIDITY OF REOPENING AND REASONS RECORDED U/S 148 OF THE ACT 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, LEARNED CIT-A ERRED IN NOT QUASHING THE INSTANT REOPENING ACTION OF LD AO' WHICH IS MADE ON BASIS OF VAGUE AND SCANTY REASONS IN ABRUPT MANNER WITHOUT TANGIBLE MATERIAL ON RECORD AND LACKING RATIONAL CONNECTION WHICH IS MUST FOR ANY VALID REOPENING ACTION. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, LEARNED CIT-A ERRED IN NOT QUASHING THE INSTANT IMPETUOUS REOPENING ACTION OF LD AO WHERE IN REASONS (REFER STATEMENT OF FACTS BEFORE CIT-A) FIGURE OF RS 10,75,000 IS MENTIONED AS INCOME ESCAPING ASSESSMENT WHERE AS IN UNDERLYING ORDERS THREE DIFFERENT FIGURES OF RS 15,75,000 AND RS 21,75,000 AND RS 2168500 IS MENTIONED WHICH REFLECTS TOTAL NON APPLICATION OF MIND AT ALL STAGE S AS FOUR DIFFERENT FIGURES ARE MENTIONED FOR INCOME TO BE ASSESSED. (REFER PAGES 9 TO 11,24 OF CIT-A ORDER). 3 (THIS IS GLOSSED OVER AND IGNORED BY LD CIT-A TO SUIT HIS PREDETERMINED OPINION. ) 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, LEARNED CIT-A ERRED IN NOT QUASHING THE INSTANT IMPETUOUS REOPENING ACTION OF LD AO WHERE NOTHING IS STATED FOR DISTINCTIVE NATURE OF TRANSACTION TILL END AS TRANSACTION FOR SALE OF SHA RES ARE CONFLUENCE WITH TRANSACTION OF SHARE APPLICATIO N MONEY AND THERE IS NO ADVERSARIAL STATEMENT/ INCRIMINATING MATERIAL BROUGHT ON RECORD AT ANY STAGE TO CONNECT THE SAME TO ASSESSEE'S CASE . (REFER AOS & CIT-A'S ORDER). ADDITION OF RS. 21,68,500 CONFIRMED ON BASIS OF CONJECTURES AND SURMISES WITHOUT INDEPENDENT MEANINGFUL ENQUIRY 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT-A ERRED IN UPHOLDING THE ADDITION OF RS. 21,68,500 (RS 40000 ON A/ C OF SALE OF SHARES TO ONE M/ S ARUN FINVEST (P) LTD AND REST FROM SHARE APPLICATION MONEY RECD FROM OTHER PARTIES) ON BASIS OF PERVERSE FINDINGS (NEITHER THE CASE OF LD AO IN IMPUGNED ORDER NOR 4 THE CASE OF LD AO IN REMAND REPORT REPRODUCED IN CIT-A ORDER) IN GLARING NON APPRECIATION OF THE FAC T THAT THERE IS NO MEANINGFUL ENQUIRY AT ANY STAGE BY LD AO. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT-A ERRED IN UPHOLDING THE ADDITION OF RS 21,68,500 ON BASIS OF MERETRICIOUS FINDINGS WHICH ARE STRONGLY CONTESTED AND REPUDIATED AT PARA 7.3.1, 7.3.2,7.3.3 AND 7.3.5 . 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT-A ERRED IN UPHOLDING THE ADDITION OF RS 21,68,500 ON BASIS OF UNCONFRONTED AND UNFOUNDED NEW REASONING WHICH IS NOT BORNE OUT FROM RECORDS IN STRANGULATION OF PRINCIPLES OF NATURAL JUSTICE. ALTERNATE CLAIM OF SET OFF OF BROUGHT FORWARD BUSINESS LOSS AGAINST BUSINESS INCOME ASSESSED 8. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT-A ERRED IN NOT DIRECTING THE LD AO TO VERIFY FROM RECORDS AND A FORTIORI, ALLOW THE CARRY FORWARD BUSINESS LOSS AGAINST ASSESSED BUSINESS INCOME. 5 THAT THE APPELLANT CRAVES LEAVE TO ADD, TO, AMEND, MODIFY, RESCIND, SUPPLEMENT OR ALTER ANY OF THE GROUNDS STATED HEREIN ABOVE, EITHER BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 3. THE GROUNDS RAISED IN ITA NO. 6018/DEL/2014 REA D AS UNDER:- CONFIRMATION OF PENALTY U/S. 271(1)(C) OF THE ACT O N NON APPEARANCE / EXPARTE BASIS (RS. 800,219/-) 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) ERRED IN CONFIRMING THE PENALTY LEVIED BY AO U/S. 271(1)(C) OF THE ACT, AT PARA 5.3.2, 5.3.3. (PAGE 5, 6) WITHOUT LOOKING TO THE SKELETON PENALTY ORDER WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) ERRED IN CONFIRMING THE PENALTY LEVIED BY AO IN GROSS NON APPRECIATION OF I) AMBIVALENT / NON SPECIFIC PENALTY CHARGE (II) VAGUE PENALTY NOTICES (III) MERE ASSESSMENT AND ADDITION IS BASIS OF PENALTY U/S. 271(1)(C) OF THE ACT (IV) THERE IS VALID DEFENSE AVAILABLE TO APPELLANT ETC. THAT THE APPELLANT CRAVES LEAVE TO ADD, TO, AMEND, MODIFY, RESCIND, SUPPLEMENT OR ALTER 6 ANY OF THE GROUNDS STATED HEREIN ABOVE, EITHER BEFORE OR AT THE TIME OF HEARING OF THIS APPEAL. 4. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CAS E THAT ASSESSMENT WAS MADE U/S. 144/147 OF THE I.T. ACT, 1 961 ON 18.12.2007. AN INFORMATION IN THIS CASE WAS AVAILA BLE THAT CERTAIN PERSONS ARE ENGAGED IN PROVIDING ACCOMMODATION EN TRIES TO THE VARIOUS PERSONS. FOLLOWING THIS THE STATEMENT OF SUCH PERSONS PROVIDING ACCOMMODATION ENTRIES HAS BEEN RECORDED O N OATH BY THE INVESTIGATION WING OF THE INCOME TAX DEPARTMENT, NE W DELHI. THE INVESTIGATION WING AFTER COMPLETING THE INVESTIGATI ON ANALYZED THE INFORMATION COLLECTED BY THEM FROM VARIOUS SOURCES INCLUDING BANKS AND SUCH ENTRY OPERATORS. IN THE LIGHT OF THESE OBS ERVATIONS THE CASE OF M/S MEENAKSHI OVERSEAS PVT. LTD. WAS REOPENED AN D NOTICE U/S. 148 WAS ISSUED TO THE ASSESSEE FOR AY 2003-04 AFTE R RECORDING THE REASONS. THE ASSESSEE COMPANY IS ENGAGED IN THE BUS INESS OF INVESTMENT. THE RETURN OF INCOME FOR THE AY 2003-0 4 WAS FILED ON 12.11.2003 DECLARING AN INCOME OF RS. 3,140/-. THE SAME WAS PROCESSED U/S. 143(1) OF THE ACT. THE ASSESSMENT W AS REOPENED U/S. 147 OF THE ACT ON THE BASIS OF INFORMATION RECEIVED FROM INVESTIGATION WING OF THE DEPARTMENT THAT THE APPEL LANT RECEIVED ENTRIES OF RS. 21,75,000/-. THE ASSESSEE DID NOT C OMPLY WITH THE STATUTORY NOTICES. THE AO MADE THE NECESSARY ENQUI RY U/S. 133(6) OF THE ACT. ON THE BASIS OF INFORMATION AVAILABLE T HE AO COMPLETED 7 ASSESSMENT ON 18.12.2007 U/S. 144/147 OF THE ACT WI TH AN ADDITION OF RS. 21,75,000/- U/S. 68 OF THE ACT. SUBSEQUENT LY, THE LD. CIT(A) DISMISSED THE APPEAL FO THE ASSESSEE AS EXPARTE VID E ORDER DATED 11.2.2009 IN DUE TO NON-APPEARANCE. ON AN APPEAL A GAINST THE ORDER OF THE CIT(A), ITAT VIDE ORDER DATED 10.9.200 9 IN ITA NO. 1482/DEL/2009 SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE ENTIRE MATTER BACK TO THE FILE OF THE CIT(A) FOR A FRESH DECISION ON THIS ISSUE. ACCORDINGLY, NOTICE WAS ISSUED TO THE A SSESSEE BY THE LD. CIT(A) ON 20.3.2013. IN RESPONSE THERETO ASSESSEE S AR APPEARED AND MADE WRITTEN AND VERBAL SUBMISSIONS. LD. CIT(A ) SENT THE DOCUMENTS SUBMITTED BY THE ASSESSEE FOR SEEKING REM AND REPORT AND AO VIDE HIS ORDER DATED 28.2.2014 SUBMITTED HIS REM AND REPORT AND COPY THEREOF WAS SENT TO THE ASSESSEE ALONGWITH TH E NOTICE DATED 5.3.2014, BUT NO COMPLIANCE WAS MADE BY THE ASSESSE E. ANOTHER NOTICE WAS SENT ON 19.3.2014 AND IN RESPONSE THERET O ADJOURNMENT APPLICATION WAS FILED ON BEHALF OF THE ASSESSEE. B UT AGAIN ON THE ADJOURNED DATE NO COMPLIANCE WAS MADE. ANOTHER NOT ICE WAS ISSUED ON 3.7.2014 GIVING FINAL OPPORTUNITY OF HEARING ON 18.7.2014. THERE WAS NO COMPLIANCE TO THIS NOTICE AS WELL. THEREAFT ER, THE AR SH. MUKESH KUMAR BANSAL WAS CONTACTED OVER PHONE WHO SU BMITTED A LETTER ON 19.9.2014 STATING THAT HIS FIRM IS NO MOR E LEGAL COUNSEL FOR THE ASSESSEEE. IN THIS SCENARIO THE LD. CIT(A) OBS ERVED THAT HE HAS NO OPTION BUT TO DECIDE THE CASE ON MERIT AND ACCOR DINGLY, THE LD. CIT(A) OBSERVED THAT THE ASSESSEE CLAIMED THAT THE SHARE 8 APPLICATION MONEY RECEIVED IS FOR 19,650 SHARES AT A VALUE OF RS. 17,68,500/-. IT IS CLAIMED THAT THE AMOUNT OF RS. 4 ,00,000/- IS RECEIVED FROM M/S ARUN FINVEST PVT. LTD. AS SALE OF SHARES. HOWEVER, CONSIDERING THE CASH INTRODUCED IN THE BANK ACCOUNT OF M/S ARUN FINVEST PVT. LTD. BEFORE ISSUING THE CHEQUE TO THE ASSESSEE, THE CLAIM OF ASSESSEE CANNOT BE ACCEPTED. THUS, THE TOTAL AM OUNT OF ADDITION U/S. 68 REMAINS RS. 21,68,500/- AND ADDED BACK TO T HE INCOME OF THE ASSESSEE AND ACCORDINGLY, THE APPEAL OF THE ASS ESSEE WAS DISMISSED VIDE ORDER DATED 23.9.2014. 5. AGGRIEVED WITH THE AFORESAID ORDER OF THE LD. CIT(A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL FOR CHALL ENGING THE LEGAL ISSUE RAISED VIDE GROUND NO.1 & 2, AS AFORESAID. 6. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESS EE HAS STATED THAT ALTHOUGH THE ASSESSEE HAS RAISED SO MANY GROU NDS BUT HE HAS ONLY PRESSED THE GROUND NO. 2 I.E. LEGAL GROUND WHI CH IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ITAT DEC ISION DATED 09.01.2015 IN THE CASE OF G&G PHARMA INDIA LIMITED VS. ITO PASSED IN ITA NO. 3149/DEL/2013 (AY 2003-04) IN WHICH THE JUDICIAL MEMBER IS THE AUTHOR. HE FURTHER STATED THAT THE ABOVE DECISION OF THE ITAT DATED 09.01.2015 HAS BEEN UPHELD BY THE HO NBLE JURISDICTIONAL HIGH COURT IN ITS DECISION DATED 08. 10.2015 IN ITA NO. 545/2015 IN THE CASE OF PR. CIT-4 VS. G&G PHARMA IN DIA LTD. IN THIS REGARD, HE FILED THE COPIES OF THE AFORESAID DECISI ONS BEFORE THE TRIBUNAL. IN VIEW OF THE ABOVE, HE REQUESTED THAT BY 9 FOLLOWING THE AFORESAID PRECEDENTS THE REASSESSMEN T PROCEEDINGS OF THE AO MAY BE QUASHED BY ACCEPTING THE APPEAL FILED BY THE ASSESSEE. 7. ON THE CONTRARY, LD. DR RELIED UPON THE ORDER PA SSED BY THE AUTHORITIES BELOW AND STATED THAT THE AO HAS PROPER LY RECORDED THE REASONS FOR REOPENING BY DUE APPLICATION OF MIND, H ENCE, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 8. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES AND THE CASE LAW CITED BY THE ASSESSEE S COUNSEL ON THE ISSUE IN DISPUTE. I AM OF THE VIEW, IT IS VERY MUC H NECESSARY TO REPRODUCE THE REASONS RECORDED BY THE AO BEFORE IS SUE OF NOTICE TO THE ASSESSEE U/S. 148 OF THE I.T. ACT, 1961 WHICH I S REPRODUCED HEREUNDER:- THE DIRECTOR OF INCOME (INVESTIGATION), NEW DELHI, HAD SENT A REPORT IN THE CASE OF BENEFICIARIES AND OPER ATION OF ACCOMMODATION ENTRIES IN DELHI, THE CIT, DELHI-II H AD ENCLOSED THE CD RECEIVED FROM CCIT-II, NEW DELHI, CONTAINING SUPPLEMENTARY LIST OF BENEFICIARIES AND OPERATORS OF ACCOMMODATION ENTRIES IN DELHI. THE LE TTER WAS ACCOMPANIED WITH A DETAILED REPORT. THE PERUSAL OF THE REPORT SHOWS AS PER ANNEXURE ENCLOSED. 10 ON GOING THROUGH THE INFORMATION RECEIVED FROM DIT INVESTIGATION BEING IT HAS BEEN SEEN THAT MEENAKSH I OVERSEAS PVT. LTD. HAS TAKEN ACCOMMODATION ENTRY OF RS. 10,75,000/- THROUGH AS PER LIST ENCLOSED. IN VIEW OF THE ABOVE CREDIBLE INFORMATION RECEIVED FROM THE DIT (INV.), NEW DELHI, I HAVE REASONS TO BELIEV E THAT THE INCOME TO THE EXTENT OF RS. 10,75,000/- HAS ESC APED AS ASSESSMENTS AS PER THE PROVISION OF SECTION 147 OF THE INCOME TAX ACT, 196. I AM ALSO SATISFIED THAT THE CASE OF ASSESSEE FOR THE AY 2003-04 IS A FIT CASE FOR ISSUE OF NOTICE U/S. 1 48 OF THE INCOME TAX ACT, 1961. IF APPROVED NOTICE U/S. 148 OF THE INCOME TAX ACT, 1961 MAY BE ISSUED. SD/- (RAJEEV JAIN) INCOME TAX OFFICER, WARD 6(3), NEW DELHI 9. AFTER GOING THROUGH THE REASONS RECORDED BY THE AO, AS AFORESAID, I AM OF THE VIEW THAT AO HAS NOT APPLIE D HIS MIND SO AS TO COME TO AN INDEPENDENT CONCLUSION THAT HE HAS REASO N TO BELIEVE THAT INCOME HAS ESCAPED DURING THE YEAR. IN MY CON SIDERED VIEW THE 11 REASONS ARE VAGUE AND ARE NOT BASED ON ANY TANGIBLE MATERIAL AS WELL AS ARE NOT ACCEPTABLE IN THE EYES OF LAW. THE AO H AS MECHANICALLY ISSUED NOTICE U/S. 148 OF THE I.T. ACT, 1961 ON THE BASIS OF INFORMATION ALLEGEDLY RECEIVED BY HIM FROM THE DIRE CTORATE OF INCOME TAX (INV.), NEW DELHI. KEEPING IN VIEW OF THE FACT S AND CIRCUMSTANCES OF THE PRESENT CASE AND THE CASE LAW APPLICABLE IN THE CASE OF THE ASSESSEE, I AM OF THE CONSIDERED V IEW THAT THE REOPENING IN THE CASE OF THE ASSESSEE FOR THE ASSTT . YEAR IN DISPUTE IS BAD IN LAW AND DESERVES TO BE QUASHED. MY VIEW IS FULLY SUPPORTED BY THE FOLLOWING JUDGMENT/DECISION:- PR. CIT VS. G&G PHARMA INDIA LTD. IN ITA NO. 545/2015 DATED 8.10.2015 OF THE DELHI HIGH COURT WHEREIN THE HONBLE COURT HAS ADJUDICATED THE ISSUE AS UNDER:- 12. IN THE PRESENT CASE, AFTER SETTING OUT FOUR ENTRIES, STATED TO HAVE BEEN RECEIVED BY THE ASSESSEE ON A SINGLE DATE I.E. 10TH FEBRUARY 2003, FROM FOUR ENTITIES WHICH WERE TERMED AS ACCOMMODATION ENTRIES, WHICH INFORMATION WAS GIVEN TO HIM BY THE DIRECTORATE OF INVESTIGATION, THE AO STATED: 'I HAVE ALSO PERUSED VARIOUS MATERIALS AND REPORT FROM INVESTIGATION WING AND ON THAT BASIS IT IS EVIDENT THAT THE ASSESSEE COMPANY HAS INTRODUCED ITS OWN UNACCOUNTED MONEY IN ITS BANK ACCOUNT BY WAY OF ABOVE ACCOMMODATION ENTRIES.' THE ABOVE CONCLUSION IS UNHELPFUL IN UNDERSTANDING WHETHER THE AO APPLIED HIS MIND TO THE MATERIALS THAT HE TALKS ABOUT 12 PARTICULARLY SINCE HE DID NOT DESCRIBE WHAT THOSE MATERIALS WERE. ONCE THE DATE ON WHICH THE SO CALLED ACCOMMODATION ENTRIES WERE PROVIDED IS KNOWN, IT WOULD NOT HAVE BEEN DIFFICULT FOR THE AO, IF HE HAD IN FACT UNDERTAKEN THE EXERCISE, TO MAKE A REFERENCE TO THE MANNER IN WHICH THOSE VERY ENTRIES WERE PROVIDED IN THE ACCOUNTS OF THE ASSESSEE, WHICH MUST HAVE BEEN TENDERED ALONG WITH THE RETURN, WHICH WAS FILED ON 14TH NOVEMBER 2004 AND WAS PROCESSED UNDER SECTION 143(3) OF THE ACT. WITHOUT FORMING A PRIMA FACIE OPINION, ON THE BASIS OF SUCH MATERIAL, IT WAS NOT POSSIBLE FOR THE AO TO HAVE SIMPLY CONCLUDED: 'IT IS EVIDENT THA T THE ASSESSEE COMPANY HAS INTRODUCED ITS OWN UNACCOUNTED MONEY IN ITS BANK BY WAY OF ACCOMMODATION ENTRIES'. IN THE CONSIDERED VIEW OF THE COURT, IN LIGHT OF THE LAW EXPLAINED WITH SUFFICIENT CLARITY BY THE SUPREME COURT IN THE DECISIONS DISCUSSED HEREINBEFORE, THE BASIC REQUIREMENT THAT THE AO MUST APPLY HIS MIND TO THE MATERIALS IN ORDER TO HAVE REASONS TO BELIEVE THAT THE INCOME OF THE ASSESSEE ESCAPED ASSESSMENT IS MISSING IN THE PRESENT CASE. 13. MR. SAWHNEY TOOK THE COURT THROUGH THE ORDER OF THE CIT(A) TO SHOW HOW THE CIT (A) DISCUSSED THE MATERIALS PRODUCED DURING THE HEARING OF THE APPEAL. THE COURT WOULD LIKE TO OBSERVE THAT THIS I S IN THE NATURE OF A POST MORTEM EXERCISE AFTER THE EVENT OF REOPENING OF THE ASSESSMENT HAS TAKEN PLACE. WHILE THE CIT MAY HAVE PROCEEDED ON THE BASIS THAT THE REOPENING OF THE ASSESSMENT WAS 13 VALID, THIS DOES NOT SATISFY THE REQUIREMENT OF LAW THAT PRIOR TO THE REOPENING OF THE ASSESSMENT, THE AO HAS TO, APPLYING HIS MIND TO THE MATERIALS, CONCLUDE THAT HE HAS REASON TO BELIEVE THAT INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. UNLESS THAT BASIC JURISDICTIONAL REQUIREMENT IS SATISFIED A POST MORTEM EXERCISE OF ANALYSING MATERIALS PRODUCED SUBSEQUENT TO THE REOPENING WILL NOT RESCUE AN INHERENTLY DEFECTIVE REOPENING ORDER FROM INVALIDITY . 14. IN THE CIRCUMSTANCES, THE CONCLUSION REACHED BY THE ITAT CANNOT BE SAID TO BE ERRONEOUS. NO SUBSTANTIAL QUESTION OF LAW ARISES. 15. THE APPEAL IS DISMISSED. 10. IN VIEW OF ABOVE, I AM OF THE CONSIDERED VIEW T HAT THE AFORESAID ISSUE IN DISPUTE IS EXACTLY THE SIMILAR A ND IDENTICAL TO THE ISSUE INVOLVED IN THE PRESENT APPEAL AND IS SQUAREL Y COVERED BY THE AFORESAID DECISION OF THE HONBLE HIGH COURT OF DEL HI IN THE CASE OF G&G PHARMA (SUPRA). HENCE, RESPECTFULLY FOLLOWING THE ABOVE PRECEDENT IN THE CASE OF PR. CIT-4 VS. G&G PHARMA I NDIA LTD. (SUPRA) I DECIDE THE LEGAL ISSUE IN DISPUTE IN FAVOR OF THE ASSESSEE AND AGAINST THE REVENUE AND ACCORDINGLY QUASH THE REASS ESSMENT PROCEEDINGS AND ALLOW THE LEGAL ISSUE. SINCE I HA VE ALREADY QUASHED THE REASSESSMENT PROCEEDINGS, AS AFORESAID, THE OTH ER ISSUES ARE NOT BEING DEALT WITH BEING ACADEMIC IN NATURE. 11. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 14 12. AS REGARDS THE ITA NO. 6018/DEL/2014 (2003-04) IS CONCERNED, SINCE I HAVE ALREADY QUASHED THE REASSESSMENT PROC EEDINGS, THE PENALTY IN DISPUTE DOES NOT SURVIVE, HENCE, THE SAM E IS DELETED AS SUCH. 13. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 09-03-2017. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED : 09-3-2017 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.
Mehul