EXCELLENT SHARES & FINANCE SERVICES PVT. LTD. (FORMERLY KNOWN AS PASHUPATI SHARES & FINANCE SERVICES PVT. LTD.), MUMBAI V. ITO 13 (1)(3), MUMBAI

ITA 7002/MUM/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7678 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUM; SANJAY SETHI DR ITA NO
• Keywords: Reopening of assessment; Transactions in derivatives; Reason to believe; Set aside
• Section: 147; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE S HRI SAKTIJIT DEY (J M ) ITA NO. 7002/MUM/2018 ASSESSMENT Y EAR: 2009 - 10 ITA NO. 7004/MUM/2018 ASSESSMENT Y EAR: 2011 - 12 M/S EXCELLENT SHARES & FINANCE SERVICES PVT. LTD., (FORMERLY K NOWN AS PASHUPATI SHARES & FINANCE SERVICES PVT. LTD.), 601, KRISHNA UTSAV, KHANDELWAL LEYOUT, EVERSHINE NAGAR, MALAD (W), MUBMAI - 400064 PAN: AADCP0465C VS. THE INCOME TAX OFFICER 13(1)(3), ROOM NO. 225, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 4000 20 (APPELLANT) (RESPONDENT) & ITA NO. 7005/MUM/2018 ASSESSMENT YEAR: 2009 - 10 M/S PASHUPATI DERIVATIVES & COMMODITIES PVT. LTD. (FORMERLY KNOWN AS PASHUPATI STOCK & COMMODITIES PVT. LTD.), 806, 8 TH FLOOR, DLH PARK, S.V. ROAD, NEAR MTNL EXCHANGE, GOR EGAON (W), MUMBAI 400062 PAN: AADCP8027G VS. THE INCOME TAX OFFICER 13(1)(3), ROOM NO. 225, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAKESH JOSHI (AR) REVENUE BY : SHRI SANJAY SETHI (DR ) 2 ITA NO. 7002 , 7004 & 7005 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 & 2011 - 12 DATE OF HEARING: 14/12 /2020 DATE OF PRONOUNCEMENT: 18 / 01 /202 1 O R D E R PER SAKTIJIT DEY , JM CA PTIONED APPEALS BY TWO DIFFERENT ASSESSEE S ARISE OUT OF THREE SEPARATE ORDERS , ALL DATED 21.08.2018 , OF LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) 21, MUMBAI FOR THE A SSESSMENT Y EARS 2009 - 10 AND 2011 - 12. 2. IN GROUND NO. 1, OF ALL THESE APPEALS THE ASSESSEE HAS CHALLENGED THE VALIDITY OF REOPENING OF ASSESSMENT U/S 147 OF THE ACT. 3 . BRIEFLY THE FACTS WHICH ARE COMMON IN ALL THESE APPEALS ARE , THE ASSESSEE S ARE RESIDENT COMPANIES AND ARE DEALING I N SHARES AND SECURITIES IN BOTH DE RIVATIVE AND FORWARD AND OPTION (F & O) SEGMENT S . FOR THE ASSESSMENT YEAR S UNDER DISPUTE THE ASSESSE E S, IN REGULAR COURSE , H AVE FILED THE RETU RN OF INCOME AS PER SECTION 139 (1) OF THE ACT. RETURN S FILED BY THE ASSESSEE S W ERE INITIALLY PROCESSED U/S 143 (1) OF THE ACT. SUBSEQUENTLY, THE ASSESSING OFFICER VIDE LETTER DATED 11.03.2 016 RECEIVED INFORMATION FROM DD IT (INV.), AHMEDABA D THAT CERTAIN ASSESSEES WERE EN GAGED IN TAX EVASION THROUGH CLIENT CODE M ODIFICATION AND THE ASSESSEE IS ONE OF THEM . O N THE BASIS OF SUCH INFORMATION ASSESSING OFFICER REOPENED THE ASSESSMENTS U/S 147 OF THE ACT. ULTIMATELY , THE ASSESSING OFFICER COMPLE TED THE ASSESSMENT S U/S 143 (3) R.W.S. 147 OF THE ACT MAKING ADDITION OF VARIOUS AMOUNTS AND ALSO COMPUTED COMMISSION INCOME AT 2%. ACCORDINGLY, THE ADDITIONS WERE MADE AT THE HANDS OF THE ASSESSEE. THOUGH, THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER S BEF ORE LEARNED COMMISSIONER (APPEALS) BOTH ON THE VALIDITY OF REOPENING OF ASSESSMENT U/S 147 OF THE ACT AS WELL AS MERITS OF THE ADDITIONS. FUR THER, THE LEARNED COMMISSIONER (APPEALS) DID NOT FIND MERIT IN THE GROUNDS RAISED. ACCORDINGLY, HE DISMISS ED THE AP PEALS FILED BY THE ASSESSEE. 4. THE LEARNED COUN SEL FOR THE ASSESSEE DRAWING MY ATTENTION TO THE REASONS RECORDED BY THE ASSESSING OFFICER ON 05.07.2016 FOR REOPENING T HE ASSESSMENT SUBMITTED THAT ONLY ON THE BASIS OF CERTAIN INFORMATION RECEIVED 3 ITA NO. 7002 , 7004 & 7005 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 & 2011 - 12 FROM T H E INVESTIGATION WING, AHMEDABAD, THE ASSESSING OFFICER HAS MECHANICALLY REOPENED THE ASSESSMENT U/S 147 OF THE ACT . H E SUBMITTED , THERE WAS NO INFORMATION AVAILABLE WITH THE A SSESSING OFFICER REGARDING ANY CLIENT CODE MODIFICATION BY THE ASSESSEE. HE SUBM ITTED , NEITHER IN THE REASONS RECORDED FOR REOPENING OF ASSESSMENT NOR IN THE ASSESSMENT ORDE R, THE ASSESSING OFFICER HAS POINTED OUT EVEN A SINGLE INSTANCE OF CLIENT CODE M ODIFICATION BY THE ASSESSEE. HE SUBMITTED , WITHOUT MAKING ANY INDEPENDENT ENQUIRY O R APPLICATION OF MIND, THE ASSESSING OFFICER REOPEN ED THE ASSESSMENT M ERELY ON THE BASIS OF LETTER RECEIVED FROM THE DGIT (INV.) . H E SUBMITTED , WHILE CONSIDERING IDENTICAL ISSUE IN ASSESSEES OWN CASE IN ASSESSMET YEAR 2010 - 11, A DIVISION BENCH OF THE TRIB UNAL HAS HELD THE INITIATION OF PROCEEDINGS U/S147 OF THE ACT TO BE INVALID . T O DEMONSTRATE THAT THE REASONS ON THE BASIS OF WHICH THE ASSESSMENT WAS REOPENED IN AY 2010 - 11 AND IN THE IMPUGNED ASSESSMENT YEARS ARE IDENTICAL, THE LEARNED COUN SEL FOR THE AS SESSEE TOOK US THROUGH THE DISCUSSIONS MADE BY THE TRIBUNAL IN THE APPEAL ORDER PASSED FOR A SSESSMENT Y EAR 2010 - 11. THUS , HE SUBMITTED , THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE. 5. THE LEARNED DEPARTMENTAL REPR ESENTATIVE , THOUGH , AGREED THAT THE IDENTICAL ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN A SSESSMENT Y EAR 2010 - 11, HOWEVER , HE SUBMITTED THAT DEPARTMENT M IGHT HAVE FILED APPEAL AGAINST THE DECISION OF THE HONBLE JURISDICTIONAL HIGH CO URT RELIED UPON BY THE TRIBUNAL. 6. I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, REOPENING OF ASSESSMENT IN ALL THESE CASES ARE ON THE BASIS OF INFORMATION RECEIVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD INDULGED IN CLIENT CODE M ODIFICA TION FROM WHICH IT HAS PROVIDED FICTITIOUS LOSS TO DIFFERENT CLIENT S AS WELL AS FICTITIOUS PROFIT TO OTHER CLIENTS. THE REASONS RECORDED BY THE ASSESSING OFFICER FOR REOPENING THE ASSESSMENT S, WHICH ARE COMMON IN ALL THESE Y EARS , ARE AS UNDER: - IN THIS CASE INFORMATION HAS BEEN RECEIVED FROM D DIT (INV.) UNIT - 1 (3), 4 ITA NO. 7002 , 7004 & 7005 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 & 2011 - 12 AHMEDABAD, THROUGH EMAIL DATED 11.03 . 2016 THAT FICTITIOUS PROFITS AND LOSSES WERE CREATED BY SOME BROKERS BY MISUSING THE CLIENT CODE MODIFICATION FACILITY IN F& O SEGMENT ON NSF DURING THE FY. 2008 - 09. THE BROKERS WERE ALLEGED TO B E INDULGING IN TRANSFERRING THE FICTITIOUS LOSSES TO DIFFERENT CLIENTS TO REDUCE THEIR TAX LIABILITY AND ALSO FICTITIOUS PROFIT TO OTHER CLIENTS. AS PER THE INFORMATION RECEIVED BY THE D DIT (INV ), AHMEDABAD FROM NSF, CLIENT CODE MODIFICATION (CCM) DATA FOR . A.Y. 2009 - 10 AND THE CCM TRANSACTIONS RECEIVED FROM NSF WERE FURTHER ANALYZED AND THE MAPPING OF DATA WAS DONE TO ASCERTA I N THE EXACT AMOUNT OF FICTITIOUS PROFIT/LOSSES IN EACH CASE. O N DETAILED ANALYSTS BY THE D DIT (INV.), UNIT - 1(3), AHMEDABAD, IT WAS ESTABLISHED THAT THE BROKERS HAS MISUSED CLIENT CODE MODIFICA TION FACILITY AND CREATED NON - GENUINE LOSSES AND PROFITS. THESE LOSSES AND PROFITS WERE GIVEN TO DIFFERENT CLIENTS/BENEFICIARI ES ACCORDING TO THEIR REQUIREMENT. THE CLIENTS HAVE TAKEN FICTITIOUS LOSSES TO SET OFF AGAINST THEIR PROFITS WITH A VIEW TO REDUCE THEIR TAX LIABILITY. SOME OF THE CLIENT HAVE CONFIRMED THAT TH EY HOVE MISUSED THE FACILITY OF CLIENT CODE MODIFICATION IN ORD ER TO CREATE FICTITIOUS LOSSES/PROFITS. THEY HAVE COMMITTED THAT THEY HAVE RECEIVED COMMISSION AT THE ROTE VARYING FROM 0.5 % TO 2% ON THE AMOUNT OF LOSES/PROFITS FOR TRANSFERRING SUCH LOSSES/PROFITS TO THEIR CLIENT. THE NAME OF THE BROKER IS PASHUPATI CAPI TAL SERVICES PVT . LTD. THIS CCM DATA IS RELATING TO THE BENEFICIARIES IN WHOSE ACCOUNT MORE THAN RS, 1,00,000/ , - LOSSES/PROFITS HAVE BEEN GENERA RED THROUGH CCM. IN THIS - CASE. 'SSESSEE HAS EXECUTED THE TRANSACTION DURING THE FY 2008 - 09. AS PER TH E INFORMAT ION RECEIVED, ASSESSEE COMPANY IS ONE OF THE BENEFICIARIES AND CREATE FICTITIOUS PROFIT/LASS AMOUNTS TO PS. 29,02 , 696/ - IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX AMOUNTING TO RS. 29,02,696/ - HAS ESCAPED ASSESSMENT, BY THE REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSED FULLY AND TRULY TILL MATERIAL FACTS WITHIN THE MEANING OF PROVISION OF SECTION 147 OF THE IT. ACT, 1961. THEREFORE, THE ASSESSMENT IS REOPENED AND ISSUED NOTICE C/S 148 OF THE IT. ACT. 7. PERU SAL OF THE REASONS RECORDED CLEARLY INDICATE THAT THE REOPENING OF ASSESSMENT S IS ON THE BA SIS OF A LETTER RECEIVED FROM DD IT (INV.), AH MEDABAD, WHEREIN , IT IS ALLEGED THAT SOME BROKERS ARE MISUSING THE CLIENT CODE M ODIFICATION FACILITIES TO BENEFIT THEI R CLIENTS AND IN THE PROCESS RECEIVED 5 ITA NO. 7002 , 7004 & 7005 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 & 2011 - 12 COMMISSION VARYING BETWEEN 0.5% TO 2% OF THE AMOUNT OF LOSS/PROFIT TRANSFER RED TO THE RESPECTIVE CLIENTS. IT IS NOTICED , ON THE BASIS OF IDENTICAL REASONING IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2010 - 11 , ASSESSM ENT WAS REOPENED U/S 147 OF THE ACT. THE TRIBUNAL WHILE DECIDING THE ISSUE IN ITA NO. 7003/MUM/2018 DATED 28.02.2020, FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN CASE OF M/S CORONATION AGRO INDUSTRIES LTD. VS. DCIT WRIT PETITION NO. 2627 OF 2016 , HELD THE REOPE NING OF ASSESSMENT AS INVALID AND ACCORDINGLY , QUASHED THE ASSESSMENT ORDER S. T HE RELEVANT OBSERVATIONS OF THE BENCH IS REPRODUCED HEREUNDER FOR BETTER APPRECIATION: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATE RIAL ON RECORD INCLUDING THE CASES RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE AND THE AUTHORITIES BELOW IN THE LIGHT OF THE RIVAL CONTENTIONS. THE REASONS RECORDED FOR REOPENING THE ASSESSMENT READ AS UNDER: INFORMATION HAS BEEN RECEIVED FROM DIT (IN TELL. & CR. INV.), MUMBAI, VIDE LETTER NO. DIT (I & CI)/CCM/2014 - 15 DATED 27.02.2015 THAT FICTITIOUS PROFITS AND LOSSES WERE CREATED BY SOME BROKERS BY MISUSING THE CLIENT CODE MODIFICATION FACILITY IN F&O SEGMENT ON NSE DURING MARCH, 2010. THE BROKERS WE RE ALLEGED TO BE INDULGING IN TRANSFERRING THE FICTITIOUS LOSSES TO DIFFERENT CLIENTS TO REDUCE THEIR TAX LIABILITY AND ALSO FICTITIOUS PROFIT TO OTHER CLIENTS. AS PER THE INFORMATION RECEIVED BY THE DIT (I&CI), MUMBAI FROM NSE, CLIENT CODE MODIFICATION (C CM) DATA FOR F.Y. 2009 - 10, AND THE CCM TRANSACTIONS RECEIVED FROM NSE WERE FURTHER ANALYSED AND THE MAPPING OF DATA WAS DONE TO ASCERTAIN THE EXACT AMOUNT OF FICTITIOUS PROFITS/LOSSES IN EACH CASE. ON DETAILED ANALYSIS BY THE DIT (I & CI), MUMBAI, IT WAS E STABLISHED THAT THE BROKERS HAS MISUSED CLIENT CODE MODIFICATION FACILITY AND CREATED NON - GENUINE LOSSES AND PROFITS. THESE LOSSES AND PROFITS WERE GIVEN TO DIFFERENT CLIENTS/BENEFICIARIES ACCORDING TO THEIR REQUIREMENT. THE CLIENTS HAVE TAKEN FICTITIOUS L OSSES TO SET OFF AGAINST THEIR PROFITS WITH A VIEW TO REDUCE THEIR TAX LIABILITY. SOME OF THE CLIENT HAVE CONFIRMED THAT THEY HAVE MISUSED THE FACILITY OF CLIENT CODE MODIFICATION IN ORDER TO CREATE FICTITIOUS LOSSES/PROFITS. THEY HAVE ADMITTED THAT THEY H AVE RECEIVED COMMISSION AT THE RATE VARYING FROM 0.5% UPTO 2% ON THE 6 ITA NO. 7002 , 7004 & 7005 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 & 2011 - 12 AMOUNT OF LOSSES/PROFITS FOR TRANSFERRING SUCH LOSSES/PROFITS TO THEIR CLIENT. THE NAMES OF SUCH BROKERS ARE I) TRANSGLOBAL SECURITIES LTD. II) CROSSEAS CAPITAL SERVICES PVT. LTD. III) I NDIANIVESH SECURITIES PVT. LTD. AND IV) ANUGRAH STOCK & BROKING PVT. LTD. THIS CCM DATA ARE RELATING TO THE BENEFICIARIES IN WHOSE ACCOUNT MORE THAN RS. 25 LACS LOSSES/PROFITS HAVE BEEN GENERATED THROUGH CCM. IN THIS CASE, ASSESSEE HAS EXECUTED THE TRANSA CTION DURING THE F.Y. 2009 - 10. AS PER THE INFORMATION RECEIVED, ASSESSEE COMPANY IS ONE OF THE BENEFICIARIES AND CREATE FICTITIOUS PROFIT/LOSS AMOUNTS TO RS. 1,12,08,455/ - . ASSESSEE HAS MODIFIED 2,58,47,552 QUANTITY OF SHARES AND THE VALUE OF SHARES MODIFI ED AS PER THE INFORMATION WAS TO THE TUNE O F RS. 2,23,01,04,598/ - RESULTING INTO LOSS OF RS. 1,12,08,485/ - DUE TO CLIENT CODE MODIFICATION. 7. AS POINTED OUT BY THE LD. COUNSEL, IN THE CASE OF M/S CORONATION AGRO INDUSTRIES LTD. VS. DCI T (SUPRA), THE HONBLE BOMBAY HIGH COURT HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE AND HELD THE NOTICE ISSUED U/S 148 OF THE ACT LACKS REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT HOLDING AS UNDER: - 2. THIS PE TITION CHALLENGES NOTICE DATED 31 ST MARCH, 2016 ISSUED UNDER SECTION 148 OF THE INCOME TAX ACT, 1961. THE IMPUGNED NOTICE SEEKS TO REOPEN THE ASSESSMENT FOR ASSESSMENT YEAR 2009 - 10. THE REGULAR ASSESSMENT PROCEEDINGS WERE COMPLETED ON 28 TH DECEMBER, 2011 U NDER SECTION 143 (3) OF THE ACT. 3. THE REASONS IN SUPPORT OF THE IMPUGNED NOTICE RELIES UPON THE INFORMATION RECEIVED FROM THE PRINCIPAL DIRECTOR OF INCOME TAX THAT THE PETITIONER HAS BENEFITTED FROM A CLIENT CODE MODIFICATION BY WHICH A PROFIT OF RS. 22. 50 LAKHS WAS SHIFTED OUT BY THE PETITIONERS BROKER RESULTING IN REDUCTION OF THE PETITIONERS TAXABLE INCOME. THE ONLY BASIS FOR FORMING THE BELIEF IS THE REPORT FROM THE PRINCIPAL DIRECTOR OF INCOME TAX AND THE APPLICATION OF MIND TO THE REPORT OF THE AS SESSING OFFICER ALONG WITH THE RECORD AVAILABLE WITH HIM. THIS INFORMATION AND APPLICATION OF MIND HAS LED THE ASSESSING OFFICER TO FORM A REASONABLE BELIEF THAT THERE IS NOT ONLY AN ESCAPEMENT OF INCOME BUT THERE HAS BEEN FAILURE TO TRULY AND FULLY DISCLO SE ALL MATERIAL FACTS AND INFORMATION AS THE MODUS OPERANDI OF SHIFTING PROFITS WAS NOT KNOWN TO THE REVENUE AS 7 ITA NO. 7002 , 7004 & 7005 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 & 2011 - 12 NOT DISCLOSED BY THE PETITIONER WHEN THE ASSESSING OFFICER PASSED THE ORDER IN REGULAR ASSESSMENT PROCEEDINGS. 4. WE NOTE THAT THE REASONS IN SU PPORT OF THE IMPUGNED NOTICE ACCEPT THE FACT THAT AS A MATTER OF REGULAR BUSINESS PRACTICE, A BROKER IN THE STOCK EXCHANGE MAKES MODIFICATIONS IN THE CLIENT CODE ON SALE AND/ OR PURCHASE OF ANY SECURITIES, AFTER THE TRADING IS OVER SO AS TO RECTIFY ANY ERR OR WHICH MAY HAVE OCCURRED WHILE PUNCHING THE ORDERS. THE REASONS DO NOT INDICATE THE BASIS FOR THE ASSESSING OFFICER TO COME TO REASONS DO NOT INDICATE THE BASIS FOR THE ASSESSING OFFICER TO COME TO REASONABLE BELIEF THAT THERE HAS BEEN ANY ESCAPEMENT OF INCOME ON THE GROUND THAT THE MODIFICATIONS DONE IN THE CLIENT CODE WAS NOT ON ACCOUNT OF A GENUINE ERROR, ORIGINALLY OCCURRED WHILE PUNCHING THE TRADE. THE MATERIAL AVAILABLE IS THAT THERE IS A CLIENT CODE MODIFICATION DONE BY THE ASSESSEES BROKER BUT TH ERE IS NO LINK FROM THERE TO CONCLUDE THAT IT WAS DONE TO ESCAPE ASSESSMENT OF A PART OF ITS INCOME. PRIMA FACIE, THIS APPEARS TO BE A CASE OF REASON TO SUSPECT AND NOT REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. 5. IN THE ABOV E VIEW, PRIMA FACIE, WE ARE OF THE VIEW THAT THE IMPUGNED NOTICE IS WITHOUT JURISDICTION AS IT LACKS REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. 8. THE LEGAL GROUND RAISED BY THE ASSESSEE IS COVERED BY THE RATIO LAID DOWN BY TH E HONBLE HIGH COURT DISCUSSED ABOVE. AS PER THE LAW LAID DOWN BY THE HONBLE COURT, THE MATERIAL AVAILABLE WITH THE AO WAS NOT SUFFICIENT TO FORM A BELIEF THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. HENCE, RESPECTFULLY FOLLOWING THE RATIO LAID D OWN BY THE HONBLE COURT, WE HOLD THAT THE NOTICE ISSUED BY THE AO IS BAD IN LAW. SINCE WE HAVE HELD THE NOTICE ISSUED BY THE AO AS WITHOUT JURISDICTION, THE APPELLATE PROCEEDINGS HAS ALSO BECOME BAD IN LAW. HENCE, WE ALLOW THIS GROUND OF APPEAL OF THE ASS ESSEE AND SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 8. P ERUSAL OF THE REASONS RECORDE D FOR REOPENING OF ASSESSMENT REPRODUCED IN THE ORDER PASSE D BY THE TRIBUNAL MAKES IT VERY MUCH CLEAR THAT THE REASONS RECORDED ARE IDENTICAL TO THE REA SONS RECORDED BY THE ASSESSING 8 ITA NO. 7002 , 7004 & 7005 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 & 2011 - 12 OFFICER IN CASE OF THE PRESENT ASSESSEE S. ONLY FACTUAL DIFFERENCE IS , IN A SSESSMENT Y EAR 2010 - 11 THE ASSESSING OFFICER HAD REFERRED TO INFORMATION RECEIVED FROM DIT (INTEL L ) . , MUMBAI VIDE LETTER DATED 27.02.2015 , WHEREAS , IN THE PRESENT CASE HE HAS REFERRED TO LETTER DATED 11.03.2016 RECEIVED FROM D D IT (INV.), AHMEDABAD . E XCEPT , THE AFORESAID FACTUAL DIFFERENCE THERE IS NO OTHER DIFFERENCE IN THE REASONS RECORDED. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE DIVISION BENCH OF THE TRIBUNAL , WHICH IS BINDING, I HOLD THAT THE REOPENING OF ASSESSMENT S IN ALL THESE CASES UNDER APPEAL ARE INVALID. ACCORDINGLY, THE ASSESSMENT ORDERS ARE QUASHED . CONSEQUENTLY, THE IMPUGNED ORDER S OF LEARNED COMMISSIONER ( APPEALS ) ARE SET ASID E. IN VIEW OF MY DECISION O N THE LEGAL ISSUE, THE GROUNDS RAISED ON MERITS HAVE BECOME INFRUCTUOUS , HENCE, ARE NOT REQUIRED TO BE ADJUDICATED. IN THE RESULT, APPEAL S FILED BY THE ASSESSEE S ARE ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN T HE OPEN COURT ON 18 TH JANUARY, 2021 . SD/ - ( SAKTIJIT DEY ) JUDICIAL MEMBER MUMBAI ; DATED: 18 / 01 /202 1 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A ) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . 9 ITA NO. 7002 , 7004 & 7005 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 & 2011 - 12 / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI