Akhila Mineral Works, Hyd, Hyderabad V. ITO, Ward-6(2), Hyd, Hyderabad

ITA 700/HYD/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6020 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 06-10-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 16-05-2016
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: V RAGHAVENDRA RAO
• Keywords: Reopening of assessment; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 201(1); 147; 148; 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 700/HYD/2016 ASSESSMENT YEAR: 2005-06 AKHILA MINERAL WORKS, HYDERABAD [PAN: AAEFA2326B] VS INCOME TAX OFFICER, WARD-6(2), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI V. RAGHAVENDRA RAO, AR FOR REVENUE : SHRI K.J. RAO, DR DATE OF HEARING : 21-03-2017 DATE OF PRONOUNCEMENT : 31-03-2017 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-9, HYDERABAD D ATED 23-02-2016. ASSESSEE IS CONTESTING THE ISSUE OF REOPE NING U/S. 147 OF THE INCOME TAX ACT [ACT] AS WELL AS DISALLOWA NCE OF AN AMOUNT OF RS. 12,56,805/- U/S. 40(A)(IA). 2. BRIEFLY STATED, ASSESSEE HEREIN IS A REGISTERED FIR M ENGAGED IN THE BUSINESS OF MINING OF QUARTZ, PROCESSING AND SELL ING IT. FOR THE IMPUGNED ASSESSMENT YEAR, ASSESSMENT U/S. 143(3) WAS COMPLETED ON 09-11-2006 ON A TOTAL INCOME OF RS. 6,32,810/- AS AGAINST INCOME RETURNED OF RS. 1,89,010/-. WHILE MAKING THE ASSESSMENT, ASSESSING OFFICER (AO) MADE AN ADDITION OF RS. 5,08, 490/- BY DISALLOWING 25% OF CERTAIN EXPENDITURE CLAIMED. IT S EEMS ON I.T.A. NO. 700/HYD/2016 AKHILA MINERAL WORKS :- 2 - : 05-08-2010, A NOTICE U/S. 154 WAS ISSUED PROPOSING TO ADD AN AMOUNT OF RS. 11,39,655/- U/S. 40(A)(IA) ON THE GROUN D THAT TAX WAS NOT DEDUCTED ON PAYMENTS TOWARDS QUARTZ STONE EXCAVATI ON. BUT THE NOTICE WAS SERVED ON 12-02-2012, WHICH WAS MO RE THAN FOUR YEARS AND ASSESSEE OBJECTED TO THAT. SUBSEQUENTL Y, AO ISSUED A NOTICE U/S. 148 ON 30-03-2012 WHICH WAS SERVED ON 31-03-2012. THE REASONS RECORDED AS COMMUNICATED TO ASSESSEE ARE THAT AS PER SCHEDULE-2 TO THE P&L A/C THE ASSESSEE HAS DEBI TED RS. 12,56,805/- TOWARDS EXCAVATION OF QUARTZ STONES. T HESE AMOUNTS WERE PAID TO FIVE PERSONS AND WHOSE CASES, THE PAYM ENTS EXCEED RS. 50,000/- WHICH ATTRACTS THE TDS PROVISION. AS ASSESSEE FAILED TO DEDUCT TDS ON SUCH PAYMENT, THE SAME IS TO BE DISAL LOWED INVOKING THE PROVISIONS U/S. 40(A)(IA) OF THE INCOME TAX ACT , 1961. THE AMOUNT OF RS. 12,56,805/- WAS EXCESS RELIEF ALLOWED IN THE ASSESSMENT ORDER PASSED U/S. 143(3) ON 09-11-2006 . ASSESSEE RAISED OBJECTIONS AGAINST THE ASSUMPTION OF JURISDICTI ON AND ISSUANCE OF NOTICE U/S. 148 ON THE GROUND THAT AO DID NOT RECORD THAT THERE WAS A FAILURE ON THE PART OF ASSESSEE TO DISC LOSE FULLY AND TRULY ALL THE MATERIAL FACTS AND RELIED ON THE JURISDI CTIONAL HIGH COURT JUDGMENT TO CONTEND THAT RE-ASSESSMENT PROCEEDINGS WERE INVALID. HOWEVER, AO REJECTED THE OBJECTIONS AND HEL D THAT DILIGENCE WAS REQUIRED TO NOTICE THE ESCAPEMENT THEREFO RE, ASSESSEE FAILED TO DISCLOSE THE MATERIAL FACTS. THE ASSESSMENT WAS COMPLETED BY DISALLOWING RS. 10,62,654/- STATED TO BE PAYMENTS T O FIVE PERSONS. 3. ASSESSEE CONTESTED THE SAME BEFORE THE LD.CIT(A) UN - SUCCESSFULLY. HENCE THE PRESENT APPEAL. THE GROUNDS RAISED BY ASSESSEE ARE AS UNDER: I.T.A. NO. 700/HYD/2016 AKHILA MINERAL WORKS :- 3 - : 1. THE LEARNED CIT(A)-9, HYDERABAD HAS ERRED ON FA CTS AND IN LAW IN DISMISSING THE APPEAL OF THE ASSESSEE. 2. THE LEARNED CIT(A) OUGHT TO HAVE NOTICED THAT IN THE REASONS RECORDED U/S.148(2) OF THE I.T. ACT, THE A.O HAS NOT RECORDE D THAT THE ESCAPEMENT OF INCOME TO TAX WAS BY REASON OF ASSESSEE'S FAILURE T O DISCLOSE MATERIAL FACTS NECESSARY FOR COMPUTATION OF INCOME AND THAT THEREFORE THE ASSESSMENT COMPLETED U/S.143(3) MORE THAN 4 YEARS A FTER THE END OF THE ASSESSMENT YEAR CANNOT BE REOPENED UNDER PROVISO TO SEC. 147 OF THE I.T. ACT. 3. LEARNED CIT(A) FAILED TO SEE THAT THE A.O SOUGHT TO JUSTIFY ON THE GROUND OF NON-DISCLOSURE IN FORM 3CD U/S. 44AB OF THE I.T. ACT EVEN THOUGH THE REASONS RECORDED U/S. 148(2) DID NOT MAKE THAT ALLE GATION. 4. THE ABOVE REASON IS INCONSISTENT WITH THE NOTICE U/S. 154 OF THE I.T. ACT TO RECTIFY THE ASSESSMENT ORDER IN RESPECT OF THE S AME AMOUNTS BUT ONLY DROPPED ON ACCOUNT OF NON-SERVICE OF NOTICE U/S.154 AND NOT ON ANY JURISDICTIONAL GROUNDS. THIS IS CLEARLY STATED IN T HE ASSESSMENT ORDER. 5. THE ASSESSEE DISCLOSED ALL THE PRIMARY FACTS BEF ORE THE ASSESSMENT U/S. 143(3) AND THE ASSESSMENT WAS COMPLETED AFTER OBTAINING SPECIFIC INFORMATION ABOUT THE EXPENDITURE INCURRED IN PAYME NT MADE TO THE IMPUGNED PARTIES ALONG WITH THEIR NAMES. FORM 3CD U /S. 44AB WAS FILED ALONG WITH THE RETURN. THEREFORE A.O & LEARNED CIT (A) ERRED IN CONCLUDING THAT MATERIAL FACTS WERE NOT DISCLOSED. 6. VERY REOPENING U/S. 147 IS BASED ON THE INFORMAT ION ALREADY EXISTING ON THE FILE AND SPECIFICALLY CALLED FOR DURING ASSESSM ENT PROCEEDINGS. THERE IS NO QUESTION OF ANY DILIGENCE REQUIRED (UNDER EXPLAN ATION U/S. 147 OF THE I.T. ACT) TO NOTICE THE FACTS ALREADY ON RECORD. EX PLANATION DOES NOT APPLY TO THE FACTS OF THE CASE. 7. AT ANY RATE DISALLOWANCE U/S. 40(A)(IA) OF THE E XPENSES INCURRED WITHOUT ANY BINDING CONTRACTS BETWEEN THE ASSESSEE AND THE PAYEES IS NEITHER CORRECT NOR JUSTIFIED. 8. FOR THESE AND ANY OTHER GROUNDS THAT MAY BE RAIS ED AT / BEFORE THE TIME OF HEARING, IT IS PRAYED THAT THE REASSESSMENT PROCEEDINGS BE HELD INVALID OR THE DISALLOWANCE BE DELETED. 4. LD. COUNSEL REITERATING THE SUBMISSIONS MADE BEFOR E THE AUTHORITIES SUBMITTED THAT A SCRUTINY ASSESSMENT WAS OR IGINALLY COMPLETED U/S. 143(3) AND ALL THE NECESSARY INFORMA TION HAS BEEN I.T.A. NO. 700/HYD/2016 AKHILA MINERAL WORKS :- 4 - : FILED ON RECORD. MORE OVER FOUR YEARS HAVE PASSED F ROM THE END OF ASSESSMENT YEAR BY THE TIME NOTICE UNDER SECTION 148 WAS ISSUED. THEREFORE, THERE IS NO FAILURE ON THE PART OF ASSESSEE . THE REASONING GIVEN BY THE AO IN THE ASSESSMENT ORDER THAT THE COLUMN IN 3CD FORM HAS NOT BEEN FILLED IS A SUBSEQUENT EXCUS E WHEREAS ORIGINALLY, THE RECORDED REASONS INDICATE THAT SCHEDULE -2 OF ASSESSEE FURNISHED BEFORE THE AO WAS THE BASIS FOR R EOPENING. FURTHER, IT WAS SUBMITTED THAT IN CASE OF ANY TDS FAILURE , PROCEEDINGS U/S. 201(1) SHOULD HAVE BEEN INITIATED RA THER THAN DISALLOWING U/S. 40(A)(IA). IT WAS FURTHER SUBMITTED TH AT THE PROVISIONS OF SECTION 40(A)(IA) CAME ON STATUTE BY THE A SCENT OF THE PRESIDENT ON 10 TH SEPTEMBER, 2004. THEREFORE, THEY ARE NOT APPLICABLE FOR AY. 2005-06, AS HELD BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF PIU GHOSH VS. DCIT AND OTHERS [3 86 ITR 322] (CAL). 5. LD.DR HOWEVER, SUBMITTED THE FACT THAT TDS WAS NOT MA DE HAS NOT BEEN INFORMED AND THERE IS FAILURE ON THE PAR T OF ASSESSEE TO DISCLOSE COMPLETE DETAILS, HENCE, REOPENING WAS PR OPER. HE RELIED ON THE ORDERS OF THE AO AND CIT(A) ON THIS ISSU E. 6. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE DOCUMENTS ON RECORD. AS STATED EARLIER, THERE WAS AN A SSESSMENT ORDER U/S. 143(3) COMPLETED, AFTER DUE VERIFICATION OF THE RETURN AND AO IN THAT ORDER HAS DISALLOWED VARIOUS AMOUNTS. IT SHOWS THAT AO HAS EXAMINED THE DOCUMENTS PLACED ON RECORD. T HE FACT THAT A NOTICE U/S. 154 WAS ISSUED PRIOR TO REOPENING U/S. 147, BELATEDLY AFTER FOUR YEARS, ITSELF INDICATE THAT THE SO CALLED DISALLOWANCE U/S. 40(A)(IA) IS BASED ON THE EVIDENC E AVAILABLE ON I.T.A. NO. 700/HYD/2016 AKHILA MINERAL WORKS :- 5 - : RECORD. THEREFORE, IT CAN BE CONCLUDED THAT THERE IS NO FAILURE ON THE PART OF ASSESSEE IN FURNISHING NECESSARY DETAILS. I AM OF THE OPINION THAT AO HAS RESORTED TO PROCEEDINGS U/S.147, A S ASSESSEE OBJECTED TO PROCEEDINGS U/S. 154 WHICH WERE INITIATED B EYOND FOUR YEARS PERIOD FROM THE DATE OF THE ORDER. THUS, ON THA T PRELIMINARY GROUND ITSELF, THE REOPENING PER SE IS NOT JUSTIFIED. BE THAT AS IT MAY SINCE THE ASSESSMENT WAS REOPENED AFTER THE END OF FOUR YEARS, IT IS INCUMBENT ON THE AO TO RECORD A FINDING THA T THERE IS A FAILURE ON THE PART OF ASSESSEE IN FURNISHING NECESSA RY DETAILS. BUT AS CAN BE SEEN FROM THE REASONS RECORDED- EXTRACTED I N PARA 2 ABOVE, THERE IS NO SUCH FINDING BY THE AO. IN FACT, HE RELIED ON THE SCHEDULE-2 AS WELL AS DETAILS FURNISHED BY ASSESSEE TOWARDS EXCAVATION EXPENDITURE IN THE ORIGINAL SCRUTINY PROCEED INGS. IN VIEW OF THAT, I AM OF THE OPINION THAT REOPENING AFTER THE END OF FOUR YEARS IN CASE OF SCRUTINY U/S. 143(3) WAS COMPLETED IS HIT BY THE PROVISO TO SECTION 147 AND ACCORDINGLY, BAD IN LAW. HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KOHINOOR HA TCHERIES PVT. LTD., VS. DCIT (WP NO. 2148 OF 2015) DT. 16TH AUGUST, 2 016 [(2016) 96 CCH 0140 APHC] HELD AS UNDER: 12. COMING TO THE MERITS OF THE CASE, THE REOPENIN G OF ASSESSMENT HAD HAPPENED IN THIS CASE, ADMITTEDLY AFTER 4 YEARS . THIS IS ALSO A CASE WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTIO N 143 HAD ALREADY BEEN MADE ON 31-12-2010 FOR THE RELEVANT ASSESSMENT YEAR. THEREFORE, BY VIRTUE OF THE PROVISO TO SECTION 147, NO ACTION COU LD HAVE BEEN TAKEN, AFTER THE EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT , BY REASON OF ANY ONE OF THE 3 CONTINGENCIES VIZ., A) FAILURE ON THE PART OF THE ASSESSEE, TO MAKE A RETURN UNDER SECTION 139; B) FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN RESPONSE TO A NOTICE UNDER SECTION 14 2 (1) OR UNDER SECTION 148; AND C) FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSMENT. 13. IT IS NEITHER THE CASE OF THE ASSESSING OFFICER NOR THAT OF THE LEARNED SENIOR STANDING COUNSEL THAT THE PRESENT CA SE WOULD FALL UNDER I.T.A. NO. 700/HYD/2016 AKHILA MINERAL WORKS :- 6 - : THE FIRST OR THE SECOND CONTINGENCY. THE RESPONDENT S ATTEMPT TO BRING THE CASE OF THE WRIT PETITIONER, UNDER THE THIRD CATEGO RY, VIZ., FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR TH E ASSESSMENT. 14. BEFORE TESTING WHETHER THE PETITIONER WAS GUILT Y OF FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR THE ASSESSMENT, WE MUST KEEP IN MIND THE PRESCRIPTION CONTAINED IN EXPLANATION 1 TO SECTION 147. BY THIS EXPLANATION, IT IS MADE CLEAR THAT THE PRODUCTION BEFORE THE ASSESSING OFFICER OF ALL ACCOUNT BOOKS O R OTHER EVIDENCE FROM WHICH MATERIAL EVIDENCE COULD, WITH DUE DILIGENCE, HAVE BEEN DISCOVERED BY THE ASSESSING OFFICER, WILL NOT NECESSARILY AMOU NT TO DISCLOSURE WITHIN THE MEANING OF THE PROVISO. 15. THEREFORE, THE PROVISO AS WELL AS THE EXPLANATI ON 1 TO SECTION 147 MAKE IT OBLIGATORY ON THE PART OF THE ASSESSEE (1) TO MAKE A FULL DISCLOSURE; 2) TO MAKE A TRUE DISCLOSURE AND 3) TO ENSURE THAT SUCH TRUE AND FULL DISCLOSURE IS OF MATERIAL FACTS NECESSARY FOR THE ASSESSMENT. A CLEAR SIGNAL IS SENT TO THE ASSESSEE BY EXPLANATION 1 THAT THE MERE PRODUCTION OF BOOKS OF ACCOUNTS OR OTHER EVIDENCE B EFORE THE ASSESSING OFFICER WILL NOT BE TREATED AS A DISCLOSURE. IN OTH ER WORDS, A DISTINCTION IS SOUGHT TO BE MADE BETWEEN PRODUCTION OF MATERIALS A ND DISCLOSURE OF MATERIALS. 16. SUCH A DISTINCTION BETWEEN A MERE PRODUCTION OF MATERIALS AND A TRUE AND FULL DISCLOSURE OF MATERIALS IS SOUGHT TO BE MAINTAINED ON ACCOUNT OF THE FACT THAT UNDER THE ACT, AN ASSESSING OFFICE R HAS NOW POWER OF REVIEW. THIS IS WHY THE SUPREME COURT CLARIFIED IN COMMISSIONER OF INCOME TAX VS. KELVINATOR INDIA LTD., THAT THOUGH T HE POWER TO REOPEN ASSESSMENT, AFTER THE DIRECT TAX LAWS (AMENDMENT) A CT, 1987 WAS MUCH WIDER, SECTION 147 CANNOT BE TAKEN TO CONFER ARBITR ARY POWERS TO REOPEN ASSESSMENT ON THE BASIS OF MERE CHANGE OF OPINION. 17. THE QUESTION OF CHANGE OF OPINION WOULD ARISE O NLY IF THERE HAD BEEN A FORMATION OF OPINION IN THE FIRST INSTANCE. IT IS NOT NECESSARY THAT UPON MERE PRODUCTION OF MATERIAL EVIDENCE, A FORMAT ION OF OPINION OR THE POSSIBILITY OF FORMATION OF AN OPINION COULD INEVIT ABLY HAPPEN. BUT, ON THE CONTRARY, UPON DISCLOSURE OF MATERIAL FACTS, FULLY AND TRULY, THE ASSESSING OFFICER COULD, NAY, EXPECTED TO, FORM AN OPINION. O NCE AN OPINION IS FORMED OR THE POSSIBILITY OF FORMING AN OPINION IS STEPPED UP, AT THE TIME OF ASSESSMENT, THE ASSESSING OFFICER IS NOT ALLOWED TH EREAFTER, BY LAW, TO TAKE RECOURSE TO SECTION 147. 18. BY MAKING A DISTINCTION BETWEEN A MERE PRODUCTI ON OF NECESSARY MATERIALS AND A TRUE AND FULL DISCLOSURE OF MATERIALS NECESSARY FOR ASSESSMENT, THE STATUTE ENSURES TWO THINGS VIZ. , A) THAT AN OFFICER, WHO HAD ONCE FORMED AN OPINION, DOES NOT SEEK TO CHANGE IT LATER; AND B) THAT AN OFFICER, WHO, DELIBERATELY OR BY HIS NEGLIGENCE, OMITTED TO FORM AN I.T.A. NO. 700/HYD/2016 AKHILA MINERAL WORKS :- 7 - : OPINION, DESPITE BEING MADE AWARE OF THE MATERIAL F ACTS, DO NOT TAKE REFUGE LATTER UNDER SECTION 147 TO COVER UP HIS NEG LIGENCE. 19. A QUESTION MAY ARISE IN THE SECOND CATEGORY OF CASES AS TO WHETHER THE INTERESTS OF THE REVENUE WOULD NOT SUFF ER IN SUCH CASES. BUT THE ANSWER IS NOT TOO DIFFICULT TO FIND OUT. IT IS ONLY TO SAFEGUARD THE INTERESTS OF THE REVENUE IN CASES OF THIS NATURE TH AT AN EXPRESS POWER IS CONFERRED UPON THE COMMISSIONERS UNDER SECTION 263 OF THE ACT. 20. THEREFORE, WHAT IS IMPORTANT IN CASES OF THIS N ATURE WHERE A CHALLENGE IS MADE TO THE REOPENING OF ASSESSMENT, I S TO SEE (1) WHETHER THERE WAS A TRUE AND FULL DISCLOSURE OF ALL MATERIA LS OR (2) WHETHER THERE WAS A MERE PRODUCTION OF MATERIALS. 21. AS POINTED OUT BY THE CONSTITUTION BENCH OF THE SUPREME COURT IN CALCUTTA DISCOUNT CO. LTD., V. INCOME TAX OFFICE R AND ANOTHER , THE DUTY OF THE ASSESSEE STOPS WITH A TRUE AND FULL DISCLOSU RE AND DOES NOT EXTEND TO ASSISTING THE ASSESSING OFFICER WITH THE INFEREN CES THAT COULD BE DRAWN FROM OUT OF WHAT WAS DISCLOSED. 22. EXPLANATION 1, AS POINTED OUT BY THE SUPREME CO URT IN COMMISSIONER OF INCOME TAX, CALCUTTA V. BURLOP DEAL ERS LIMITED, DOES NOT IMPOSE AN ONEROUS OBLIGATION UPON THE ASSESSEE. IT MERELY CLARIFIES WHAT COULD NOT BE TREATED AS TRUE AND FULL DISCLOSURE. 6.1. FOLLOWING THE PRINCIPLES LAID DOWN BY THE HON BLE JURISDICTIONAL HIGH COURT IN THE ABOVE SAID CASE, IT C AN BE CONCLUDED THAT ASSESSEE HAS FURNISHED NECESSARY DETAIL S DURING THE COURSE OF ASSESSMENT ORIGINALLY COMPLETED. AS POI NTED OUT BY THE CONSTITUTION BENCH OF THE SUPREME COURT IN CALCUTTA D ISCOUNT CO. LTD., VS. INCOME TAX OFFICER AND ANOTHER, THE DUT Y OF THE ASSESSEE STOPS WITH A TRUE AND FULL DISCLOSURE AND DO ES NOT EXTEND TO ASSISTING THE AO WITH THE INFERENCES THAT COULD BE DRA WN FROM OUT OF WHAT WAS DISCLOSED. SINCE THE RECORD INDICATES THAT AO TRIED TO MODIFY UNDER THE PROVISIONS OF SECTION 154 AND LAT ER ISSUED NOTICE U/S. 147 AFTER RECORDING REASONS AS EXTRACTED ABOVE, IT CAN BE CONCLUDED THAT THERE IS NO FAILURE ON THE PART OF AS SESSEE IN MAKING NECESSARY DISCLOSURES. THE PROVISO TO SECTIO N 147 WILL I.T.A. NO. 700/HYD/2016 AKHILA MINERAL WORKS :- 8 - : CLEARLY APPLY TO THE FACTS OF THE CASE. ACCORDINGLY, IT IS TO BE HELD THAT THE REOPENING AFTER FOUR YEARS FROM THE END OF TH E ASSESSMENT YEAR, IN AN ASSESSMENT COMPLETED U/S. 143(3) WITHOUT RECORDING THE FAILURE ON THE PART OF ASSESSEE IS BAD IN LAW. TH E GROUNDS PERTAINING TO THIS ARE ALLOWED. 6.2. EVEN THOUGH ASSESSEE HAS CONTESTED THAT DISALLOWANC E U/S. 40(A)(IA) IS NOT TO BE MADE FOR AY. 2005-06, IN VIEW OF THE JUDGMENT OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF PIU GH OSH VS. DCIT AND OTHERS [386 ITR 322] (CAL) (SUPRA), THERE IS NO NEED TO ADJUDICATE THIS ISSUE AS THE VERY BASIS FOR REOPENING IS BAD IN LAW. IN VIEW OF THAT, GROUNDS ARE CONSIDERED ACADEMIC IN N ATURE, WHICH CAN BE ELABORATELY DISCUSSED IN AN APPROPRIATE CASE. GROUNDS PERTAINING TO REOPENING ARE ACCORDINGLY ALLOWED AND TH E ORDER PASSED BY THE AO AND CIT(A) ARE SET ASIDE AND THE ORIG INAL ASSESSMENT ORDER IS RESTORED. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH, 2017 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 31 ST MARCH, 2017 TNMM I.T.A. NO. 700/HYD/2016 AKHILA MINERAL WORKS :- 9 - : COPY TO : 1. AKHILA MINERAL WORKS, 8-4-325, SANAT NAGAR, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-6(2), HYDERABAD. 3. COMMISSIONER OF INCOME TAX(APPEALS)-9, HYDERABAD . 4. THE PR. COMMISSIONER OF INCOME TAX-6, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.