Deputy Commissioner of Income Tax- 1, Kanpur V. M/s. Unique International, Kanpur

ITA 625/LKW/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1949 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 10-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Tangible material; Difference of opinion; Competent authority; Change of opinion; Set aside
• Section: 40A(3); 143(3); 113; 13; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 625/LKW/2018 ASSESSMENT YEAR: 2010 - 11 DCIT - 1 KANPUR V. M/S UNIQUE INTERNATIONAL 980-D, WAJIDPUR JAJMAU, KANPUR TAN/PAN: AAFU3756D (APPELLANT) (RESPONDENT) C.O . NO.19/LKW/2019 [IN ITA NO.625/LKW/2018] ASSESSMENT YEAR: 2010 - 11 M/S UNIQUE INTERNATIONAL 980-D, WAJIDPUR JAJMAU, KANPUR V. DCIT - 1 KANPUR TAN/PAN: AAFU3756D ( CROSS - OBJECTOR ) (RESPONDENT) DEPARTMENT BY: SHRI AJAY KUMAR, D.R. ASSESSEE BY: SHRI ABHINAV MEHROTRA, ADVOCATE DATE OF HEARING: 06 02 20 20 DATE OF PRONOUNCEMENT: 20 0 3 20 20 O R D E R PER A.D. JAIN, V.P.: THIS IS REVENUES APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-I, KANPUR, DATED 1/6/2018 FOR ASSESSMENT YEAR 2010-11, TAKING THE FOLLOWING GROUNDS: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-I, KANPUR HAS ERRED IN LAW AND ON FACTS IN REVOKING THE PROVISION IN SECTION 40A (3) OF THE INCOME TAX ACT. 1961 ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 2 OF 14 READ WITH RULE 6 DD(K) OF THE INCOME TAX RULES 1962 IN THE PRESENT CASE AND DELETING THE ADDITION OF RS.1,74,43,105/- WITHOUT APPRECIATING THE FACT THAT THE SAID ADDITION WAS BASED ON THE MATERIAL EVIDENCE FOUND. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)- I, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE SAID ADDITION OF RS.1,74,43,105/- IGNORING THE FACT AND MATERIAL ON RECORD. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)- I, KANPUR HAS ERRED IN LAW AS WELL ON FACTS IN DELETING THE DISALLOWANCE OF RS.1,74,43,105/- U/S. 40 A (3) OF THE I.T. ACT, 1961 IGNORING THE FACT THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS/AUTHENTICITY OF PAYMENTS OF RS.1,74,43,105/- CLAIMED TO HAVE BEEN MADE TO VARIOUS PURCHASE PARTIES AS THE PERSONS PRODUCED BY THE ASSESSEE FOR VERIFICATION OF THE PAYMENT AND WHOSE STATEMENTS WERE RECORDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WERE NOT HAVING ANY PAN AND THAT THEY WERE NOT MAINTAINING ANY ACCOUNT WHICH COULD INDICATE SUCH PAYMENTS BY THE ASSESSEE WHOLLY AND EXCLUSIVELY FOR BUSINESS PURPOSES. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)- I, KANPUR ERRONEOUS IN LAW AND ON FACTS, BE VACATED AND THE ORDER DATED 28.12.2017 PASSED U/S 147/143(3) OF INCOME TAX ACT, 1961 BY THE ASSESSING OFFICER BE RESTORED. 5. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-L KANPUR HAS ERRED ON LAW AND FACTS IN NOT APPRECIATING THE FACT AND CIRCUMSTANCES OF THE CASE, WHICH HAS BEEN BROUGHT OUT IN DETAIL BY THE AO DURING THE ASSESSMENT PROCEEDINGS AS WELL AS IN HIS ORDER. ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 3 OF 14 2. THE ASSESSEE HAS ALSO FILED CROSS OBJECTIONS. SINCE CROSS OBJECTION NO.2 RAISES A LEGAL ISSUE GOING TO THE ROOT OF THE MATTER, WE ARE TAKING UP THE CROSS OBJECTION FIRST. THE GROUNDS OF CROSS OBJECTION ARE REPRODUCED HEREUNDER: 1. BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE AUTHORITIES BELOW HAVE MANIFESTLY ERRED IN LAW IN APPROVING AN ILLEGAL AND A NON-CAT ASSESSMENT ORDER SINCE THE ASSESSING OFFICER DID NOT ACQUIRE ANY VALID JURISDICTION WHILE REOPENING THE ASSESSMENT. THE AUTHORITIES BELOW HAVE GROSSLY ERRED IN (AILING TO APPRECIATE THAT THE REOPENING OF ASSESSMENT IS PATENTLY ILLEGAL AND BAD IN LAW; THE CASE OF THE ASSESSEE HAS BEEN REOPENED BEYOND A PERIOD OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND REGULAR ASSESSMENT FOR SUCH YEAR HAD ALREADY TAKEN PLACE. THERE IS NO FINDING OR OBSERVATION THAT THE RESTRICTIVE COVENANT CONTAINED IN THE PROVISO OF SECTION 147, I.E. FAILURE ON THE PART OF THE ASSESSEE TO FULLY AND TRULY DISCLOSE ALL PARTICULARS, STOOD COMPLIED WITH BY THE REVENUE BEFORE REOPENING THE ASSESSMENT. HENCE THE ORDERS BELOW DESERVE TO BE SET- ASIDE AND QUASHED. 2. BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE AUTHORITIES BELOW HAVE MANIFESTLY ERRED IN LAW IN APPROVING AN ILLEGAL AND A NON-CAT ASSESSMENT ORDER SINCE THE ASSESSING OFFICER DID NOT ACQUIRE ANY VALID JURISDICTION WHILE REOPENING THE ASSESSMENT AS THE SANCTION OBTAINED FOR REOPENING OF ASSESSMENT IS BASED ON WRONG AND INCORRECT FACTS. IT IS AVERTED IN THE PRO-FORMA SEEKING SANCTION OF THE APPROPRIATE AUTHORITY THAT IT IS FIRST TIME FOR WHICH ASSESSMENT IS PROPOSED, WHICH TACT IS CONTRARY TO RECORD. FURTHER THE AVERMENT THAT NO ASSESSMENT HAS BEEN MADE IS CONTRARY TO RECORD. ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 4 OF 14 REGULAR ASSESSMENT WAS MADE VIDE ORDER DT. 19.02.2013. HENCE THE ORDERS BELOW DESERVE TO BE SET- ASIDE AND QUASHED. 3. BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE AUTHORITIES BELOW HAVE MANIFESTLY ERRED IN LAW IN APPROVING AN ILLEGAL AND A NON-CAT ASSESSMENT ORDER SINCE THE ASSESSING OFFICER DID NOT ACQUIRE ANY VALID JURISDICTION WHILE REOPENING THE ASSESSMENT AS THE REASONS RECORDED FOR REOPENING THE ASSESSMENT ARE BASED ON PURE CHANGE OF OPINION AND FURTHER DO NOT LEAD TO THE FORMATION OF BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THERE IS NO FRESH TANGIBLE MATERIAL COMING TO THE POSSESSION OF REVENUE WARRANTING REOPENING OF ASSESSMENT. IT IS A CASE SIMPLICITOR OF CHANGE OF OPINION BASED ON THE RECORD OF ASSESSMENT AND SUCH REOPENING OF ASSESSMENT IS PROHIBITED UNDER LAW AND HENCE THE ASSESSMENT ORDER DESERVES TO BE QUASHED AND SET-ASIDE. HENCE THE ORDERS BELOW DESERVE TO BE SET-ASIDE AND QUASHED. 4. BECAUSE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE AUTHORITIES BELOW NAVE MANIFESTLY ERRED IN LAW IN APPROVING AN ILLEGAL AND A NON-EST ASSESSMENT ORDER SINCE THE ASSESSING OFFICER DID NOT ACQUIRE ANY VALID JURISDICTION WHILE REOPENING THE ASSESSMENT SINCE THE SANCTION ACCORDED BY THE COMPETENT AUTHORITY UNDER SECTION 151 OF THE INCOME TAX ACT, HAS BEEN DONE IS A PURE MECHANICAL MANNER AND THE SAME IS PROHIBITED UNDER LAW. MERELY WRITING THE WORD 'YES DO NOT MEET THE REQUIREMENTS OF LAW. HENCE THE ORDERS BELOW DESERVE TO BE SET-ASIDE AND QUASHED. 5. THE HUMBLE ASSESSEE PRAYS FOR BEING GRANTED THE LIBERTY TO RAISE/PRESS ALL/ANY OF THE ABOVE OR ANY OTHER GROUND ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 5 OF 14 OF OBJECTION, WITH THE PRIOR APPROVAL OF THE HON'BLE BENCH. 3. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE GROUNDS TAKEN BY THE ASSESSEE IN THE CROSS OBJECTION ARE LEGAL IN NATURE, GOING TO THE ROOT OF THE MATTER. ARGUING GROUND NO.2 FIRST, HE STATES THAT THE SANCTION FOR REOPENING OF THE COMPLETED ASSESSMENT BEING BASED ON WRONG AND INCORRECT FACTS, THE ASSESSMENT ORDER PASSED PURSUANT TO SUCH SANCTION, IS AN INVALID ORDER, LIABLE TO BE REVERSED/VACATED. IN THIS REGARD, IT HAS BEEN CONTENDED THAT IN THE PROFORMA SEEKING SANCTION OF THE APPROPRIATE AUTHORITY, IT HAS BEEN MENTIONED THAT IT IS FOR THE FIRST TIME THAT THE ASSESSMENT WAS PROPOSED TO BE MADE. IT HAS BEEN CONTENDED THAT THIS IS CONTRARY TO THE RECORD, SINCE A REGULAR ASSESSMENT ORDER STOOD PASSED UNDER SECTION 143(3) OF THE ACT, VIDE ORDER DATED 19/2/2013, A COPY WHEREOF HAS BEEN PLACED AT PAGES 5 TO 10 OF THE ASSESSEES PAPER BOOK. IT HAS BEEN CONTENDED THAT THEREFORE, THE AVERMENT THAT NO ASSESSMENT HAD EARLIER BEEN MADE, IS ALSO CONTRARY TO THE RECORD. IN THIS REGARD, OUR ATTENTION HAS BEEN DRAWN TO APB:4, WHICH IS A COPY OF THE FORM FOR RECORDING REASONS FOR INITIATING PROCEEDINGS UNDER SECTION 148 OF THE ACT, FOR OBTAINING APPROVAL OF THE APPROPRIATE/COMPETENT AUTHORITY. IT HAS BEEN AVERRED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE RELEVANT ITEMS IN THIS FORM/PROFORMA ARE ITEMS NO.8 AND 9. HE SUBMITS THAT IN ITEM NO.8, THE ASSESSING OFFICER HAS REPLIED IN THE AFFIRMATIVE, TO THE QUESTION AS TO WHETHER THE ASSESSMENT IS PROPOSED TO BE MADE FOR THE FIRST TIME. HE STATES THAT IN RESPONSE TO THE QUESTION AT ITEM NO.9, WHEREBY, IF THE ASSESSMENT IS NOT PROPOSED TO BE MADE FOR THE FIRST TIME, CERTAIN DETAILS, MENTIONED AT ITEMS NO. 9(A) AND 9(B) WERE REQUIRED TO BE FILED, THE ASSESSING OFFICER HAS STATED ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 6 OF 14 N.A., REAFFIRMING THE ANSWER TO THE QUESTION AT ITEM NO.8. AS AGAINST THIS, THE LD. COUNSEL FOR THE ASSESSEE HAS TAKEN US TO PAGES 5 TO 10 OF THE ASSESSEES PAPER BOOK, WHICH IS A COPY OF THE ASSESSMENT ORDER, DATED 19/2/2013, PASSED IN THE ASSESSEES CASE, FOR THE YEAR UNDER CONSIDERATION, I.E., 2010-11, WHEREBY, THE ASSESSMENT WAS COMPLETED AS A SCRUTINY ASSESSMENT, UNDER SECTION 143(3) OF THE ACT, AT A TOTAL INCOME OF RS.65,11,390/-, AS AGAINST THE INCOME RETURNED AT RS.54,90,900/-. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS SOUGHT TO PLACE RELIANCE ON THE FOLLOWING CASE LAWS: 1. ITO VS. TECH SPAN INDIA (P.) LTD., 92 TAXMANN.COM 361 (SC). 2. ATTAR SINGH GURMUKH SINGH VS. ITO, 59 TAXMAN 11 (SC). 3. R.C. GOEL VS. CIT, 29 TAXMANN.COM 406 (DELHI). 4. SMT. ARUNA RANI VS. ITO, 82 TAXMANN.COM 391 (JAIPUR TRIB.)(TM). 5. PRINCIPAL CIT VS. L&T LTD., 113 TAXMANN.COM 48(SC). 6. PRINCIPAL CIT VS. LIGHT CARTS P. LTD., 404 ITR 574(ALLD) 7. M/S SUNIL KUMAR RASTOGI, HUF, VS. ITO IN WRITE TAX NO.658 OF 2017. 8. RAKESH KUMAR VS. ACIT IN ITA NO.102/ASR/2014. 5. ON THE STRENGTH OF THE ABOVE, THE LD. COUNSEL FOR THE ASSESSEE HAS REQUESTED THE ASSESSMENT ORDER DATED 28/12/2017, PASSED UNDER SECTION 147 OF THE ACT, TO BE DECLARED AS NULL AND VOID. ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 7 OF 14 6. ON THE OTHER HAND, THE LD. D.R. HAS PLACED STRONG RELIANCE ON THE SANCTION OBTAINED. CONTENDING THAT THE SANCTION WAS VALIDLY OBTAINED, HE HAS SUBMITTED THAT THE ASSESSMENT ORDER DATED 28/12/2017, PASSED UNDER SECTION 147 OF THE ACT DOES NOT SUFFER FROM ANY INFIRMITY WHATSOEVER AND THAT THE CROSS OBJECTION RAISED IN THIS REQUIRES TO BE REJECTED OUTRIGHT, BEING SHORN OF MERIT. HE HAS PLACED ON RECORD A LETTER/COMMUNICATION DATED 18/10/2019, WHICH IS A LETTER ADDRESSED BY THE ASSESSING OFFICER TO THE LD. D.R. THE LD. D.R. HAS ALSO REITERATED THE CONTENTS OF THIS LETTER OF THE ASSESSING OFFICER. THE ASSESSING OFFICER, IN THIS LETTER, HAS STATED THAT: 1.THE AO WITH THE APPROVAL OF HIGHER AUTHORITY IS NOT ACCEPTABLE. THE ASSESSMENT WAS REOPENED WITHIN STATUTORY PERIOD PROVIDED IN PROVISION OF SEC. 147/148 OF I. T. ACT. FURTHER THE ASSESSMENT WAS REOPENED IN VIEW OF FACT THAT THE ASSESSEE HAD CONCEALED THE FACT THAT HE MADE THE PAYMENTS EXCEEDING RS.20,000/- THROUGH BEARER CHEQUES IN VIOLATION OF PROVISION OF SEC 40A(3) OF I.T. ACT, 1961, THIS FACT WAS CONCEALED WHILE FURNISHING THE ORIGINAL RETURN FILED BY ASSESSEE ALONGWITH THE AUDIT REPORT IN 3CD FORM IN WHICH THE AUDITOR HAD CERTIFIED CLEARLY IN COLUMN NO. 21(D) THAT NO PAYMENT BY THE ASSESSEE HAD BEEN DONE BY ANY MODE OTHER THAN THROUGH CROSS CHEQUE/DRAFT EXCEEDING RS.20,000. HENCE THE TRUE FACTS REGARDING PAYMENTS IN VIOLATION OF PROVISIONS OF SECTION 40A(3) WAS CONCEALED AND HENCE THE PROCESSING U/S 147 WERE RIGHTLY AND WAS LEGALLY TAKEN IN ACCORDANCE WITH LAW. THE OBJECTION AS RAISED BY THE ASSESSEE DESERVED TO BE REJECTED AND SET ASIDE. 2. THE OBJECTION AS RAISED BY THE ASSESSEE REGARDING LEGALITY OF ACTION TAKEN U/S 147 IS NOT ACCEPTABLE. HOWEVER, THERE WAS A FACTUAL MISTAKE WHILE FILING FORMAT AS IN COLUMN 8 YES IN PLACE OF NO WAS TYPED. THIS WAS A TYPOGRAPHICAL & CLERICALCAL MISTAKE. HOWEVER THIS TYPOGRAPHICAL MISTAKE DOES NOT EFFECT THE LEGALITY OF THE ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 8 OF 14 ACTION AND ALSO CAN'T JUSTIFY THE FACT THAT THE ASSESSEE HAD TRIED TO MISLEAD THE DEPARTMENT BY GIVING WRONG FACTS AT THE TIME OF FURNISHING HIS ORIGINAL RETURN AS WELL DURING ENTIRE ASSESSMENT PROCEEDING BY CONTENDING THAT NO PAYMENTS EXCEEDING RS.20,000 WERE MADE BY ANY MODE OTHER THAN CROSS CHEQUE/DRAFT. HENCE CONTENTION OF ASSESSEE DESERVE TO BE REJECTED. 3. THE CONTENTION OF ASSESSEE THAT IT WAS PURELY CASE OF CHANGE OF OPINION OF AO IS WRONG & GROSSLY INCORRECT. THE ASSESSEE HAD CONCEALED THE FACTS REGARDING MAKING PAYMENT EXCEEDING RS.20,000 THROUGH BEARER CHEQUES WHICH WAS WRONGLY CERTIFY BY AUDITOR OF ASSESSEE IN AUDIT REPORT IN 3CD FORM. THESE FACTS WERE NEVER BROUGHT TO NOTICE OF AO DURING THE ORIGINAL ASSESSMENT PROCEEDINGS FOR WHICH THERE IS NO GROUND OF CASE FOR ANY OPINION FORMED DURING ORIGINAL ASSESSMENT PROCEEDINGS OR CHANGING THEM SUBSEQUENTLY. AS SUCH CROSS OBJECTION RAISED BY THE ASSESSEE IS NOT ACCEPTABLE & SHOULD BE REJECTED. 4. THE CONTENTION OF ASSESSEE THAT IT WAS MECHANICAL APPROVAL GIVEN BY HIGHER AUTHORITIES TO THE AO FOR REOPENING OF CASE U/S 147 AS WRONG AND MISLEADING. THE AO HAD GIVEN DETAILED REASON IN HIS PROPOSAL FOR REOPENING OF CASE U/S 147 AND THE HIGHER AUTHORITIES GAVE THEIR APPROVAL FOR REOPENING OF CASE U/S 147 ONLY AFTER EXAMINING THESE FACTS BROUGHT BEFORE THEM BY THE AO AND ALSO AFTER EXAMINING CASE RECORDS. HENCE THE CROSS OBJECTION RAISED BY THE ASSESSEE THAT IS MECHANICAL APPROACH IS BIASED AND SHOULD BE REJECTED. 5. IT NEEDS NO COMMENTS. 7. HEARD. THE ISSUE UP FOR CONSIDERATION IS THAT WHEN A SCRUTINY ASSESSMENT ORDER (APB:5-10) UNDER SECTION 143(3) OF THE ACT STOOD ALREADY PASSED ON 19/2/2013, WHETHER THE ASSESSMENT ORDER DATED 28/12/2017, PASSED UNDER SECTION 147 OF THE ACT, CONSEQUENT UPON THE PROCEEDINGS INITIATED UNDER SECTION ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 9 OF 14 147/148 OF THE ACT TO OBTAIN APPROVAL BY THE APPROPRIATE AUTHORITY ON WRONG ASSERTION OF A NON-EXISTENT FACT THAT THE ASSESSMENT ORDER WAS PROPOSED TO BE MADE FOR THE FIRST TIME, IS NOT AN INVALID ORDER. 8. FOR READY REFERENCE, THE FIRST AND LAST PAGES OF THE ASSESSMENT ORDER DATED 19/2/2013, PASSED UNDER SECTION 143(3) OF THE ACT, ARE BEING SCANNED AND REPRODUCED HEREUNDER. THESE ARE AT PAGES 5 AND 10, RESPECTIVELY, OF THE ASSESSEES PAPER BOOK: PAGE 5: ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 10 OF 14 PAGE 10: 9. THE FORM FOR RECORDING REASONS FOR INITIATING PROCEEDINGS UNDER SECTION 147 OF THE ACT FOR TAKING APPROVAL OF THE COMPETENT AUTHORITY (APB:4) IS SCANNED AND REPRODUCED AS UNDER: ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 11 OF 14 10. IT WAS IN PURSUANCE OF THE ABOVE APPROVAL THAT THE PROCEEDINGS UNDER SECTION 147 OF THE ACT WERE INITIATED AGAINST ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 12 OF 14 THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, BY ISSUANCE OF NOTICE (APB:1) DATED 31/3/2017 UNDER SECTION 148 OF THE ACT. 11. THE ORIGINAL ASSESSMENT ORDER DATED 19/2/2013, PASSED UNDER SECTION 143(3) OF THE ACT, IS PATENT ON RECORD. THIS HAS NOT BEEN DISPUTED. REMARKABLY, EVEN IN THE LETTER DATED 18/10/2019, ADDRESSED BY THE ASSESSING OFFICER TO THE LD. D.R., THE ASSESSING OFFICER DOES NOT REFUTE THE FACTUM OF THE SAID ORDER HAVING BEEN PASSED. THIS, DESPITE THE FACT THAT, IN PARA 1, THE ASSESSING OFFICER HIMSELF STATES THAT ..THE ASSESSMENT WAS REOPENED WITHIN STATUTORY PERIOD PROVIDED IN PROVISION OF SECTION 147/148 OF I.T. ACT. AND THAT.. FURTHER THE ASSESSMENT WAS REOPENED .. . 12. THE ASSESSING OFFICER HAS GONE ON A TANGENT RATHER THAN ADDRESSING THE ISSUE. HE STATES THAT THE ASSESSMENT WAS REOPENED IN VIEW OF THE FACT THAT THE FACTUM OF THE ASSESSEE HAVING MADE PAYMENTS EXCEEDING RS.20,000/- THROUGH BEARER CHEQUES IN VIOLATION OF THE PROVISIONS OF SECTION 40A(3) OF THE ACT, HAD BEEN CONCEALED BY THE ASSESSEE WHILE FILING THE RETURN OF INCOME. 13. THE ASSESSING OFFICER HAS FURTHER STATED THAT THE RETURN FILED BY THE ASSESSEE WAS ACCOMPANIED BY THE AUDIT REPORT IN FORM 3CD; THAT IN THIS AUDIT REPORT, THE AUDITOR HAD WRONGLY CERTIFIED THAT NO PAYMENT IN EXCESS OF RS.20,000/- HAD BEEN MADE BY THE ASSESSEE OTHERWISE THAN THROUGH CROSSED CHEQUE/DRAFT. 14. THE ASSESSING OFFICER HAS ALSO STATED THAT PERHAPS THE RECITAL YES IN ITEM NO.8 OF THE FORM FOR OBTAINING APPROVAL OF THE COMPETENT AUTHORITY, WAS A FACTUAL MISTAKE WHILE FILLING THE FORM, AND YES WAS ERRONEOUSLY TYPED IN PLACE OF NO, AND THAT ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 13 OF 14 THIS WAS A TYPOGRAPHICAL AND CLERICAL MISTAKE, WHICH DOES NOT AFFECT THE LEGALITY OF THE ACTION UNDER SECTION 147 OF THE ACT . 15. THE ASSESSING OFFICER HAS THEN STATED THAT THE CONCERNED ASSESSING OFFICER HAD GIVEN DETAILED REASONS IN HIS PROPOSAL FOR THE REOPENING OF THE CASE UNDER SECTION 147 OF THE ACT AND THE COMPETENT AUTHORITY HAD GIVEN THEIR APPROVAL FOR SUCH REOPENING ONLY AFTER EXAMINING THE FACTS BROUGHT BEFORE HIM BY THE ASSESSING OFFICER AND ALSO AFTER EXAMINING THE CASE RECORDS. 16. THE QUESTION IS AS TO WHETHER INDEED THERE WAS A MISTAKE IN FILLING OUT THE ANSWER TO ITEM NO.8 IN THE FORM FOR OBTAINING THE APPROVAL. THIS ARGUMENT, AT THE VERY THRESHOLD, IS UNPALATABLE, TO SAY THE LAST. IT GOES WITHOUT SAYING THAT OBTAINING OF APPROVAL FOR REOPENING OF A COMPLETED ASSESSMENT IS A VERY SERIOUS MATTER. THE ASSESSING OFFICER, IN HIS CAPACITY AS SUCH, IS EXPECTED TO GIVE SUCH DETAILS ONLY AFTER CONSULTING THE RECORD. IF HE DOES NOT DO SO, THE RECITAL CANNOT BE GIVEN THE GO-BY UNDER THE PRETEXT OF IT BEING A MERE TYPOGRAPHICAL ERROR. THIS, MOREOVER, ALSO STANDS CONFIRMED FROM THE FACT THAT ITEM NO.8 REQUIRES THE ASSESSING OFFICER TO STATE WHETHER THE ASSESSMENT IS PROPOSED TO BE MADE FOR THE FIRST TIME. THE ANSWER THERETO, I.E., YES, HAS BEEN STATED TO BE A TYPOGRAPHICAL ERROR. MEANING THEREBY, THAT IT WAS AN UNCONSCIOUS ENTRY. HOWEVER, THIS GETS BELIED FROM THE RESPONSE TO ITEM NO.9. ITEM NO.9 STATES IF THE ANSWER TO ITEM NO.8 IS IN THE NEGATIVE, PLEASE STATE. THE ANSWER TO THIS ITEM NO.9 IS N.A. THIS ITSELF EVINCES THAT THE ASSESSING OFFICER, WHILE REPLYING TO ITEM NO.9, WAS FULLY CONSCIOUS OF THE ANSWER GIVEN BY HIM TO ITEM NO.8, I.E., YES. ITA NO.625/LKW/2018 & S.A. NO.19/LKW/2019 PAGE 14 OF 14 17. IT REQUIRES TO BE MENTIONED HERE THAT THE ACT OF GRANT OF APPROVAL PER SE IS NOT IN QUESTION BEFORE US AND, THEREFORE, WE WOULD NOT LIKE TO ENTER ANY COMMENT THEREON. 18. IN VIEW OF THE ABOVE, FINDING MERIT IN GROUND NO.2 OF THE CROSS OBJECTIONS RAISED BY THE ASSESSEE, THE SAME IS ACCEPTED. FOR THE PRECEDING DETAILED DISCUSSION, THE ASSESSMENT ORDER DATED 28/12/2017, PASSED UNDER SECTION 147 OF THE ACT, IS CANCELLED AS INVALID. CONSEQUENTLY, NOTHING FURTHER SURVIVES FOR ADJUDICATION, NOR WAS ANYTHING ELSE ARGUED. THEREFORE, THE CROSS OBJECTION IS ALLOWED AND THE APPEAL OF THE DEPARTMENT IS DISMISSED. 19. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED AND THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/03/2020. SD/ - SD/ - [T. S. KAPOOR] VICE PRESIDENT ACCOUNTANT MEM BER [A. D. JAIN] DATED:20/03/2020 JJ:1902 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSISTANT REGISTRAR