ACIT 3(2)(1), MUMBAI V. MARSHALL PRODUCE BROKERS P.LTD, MUMBAI

ITA 7488/MUM/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1509 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 20-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA SR AR
• Assessee Lawyers: S E DASTUR
• Keywords: Reopening of assessment; Audit objection; Tangible material; Difference of opinion; Assessment record; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.7488/MUM/2016 ASSESSMENT YEAR : 2009-10 ASST. COMMISSIONER OF INCOME TAX-3(2)(1), MUMBAI VS. M/S. MARSHALL PRODUCE BROKERS CO. LTD., 22/23, JOLLY MAKERS CHAMBERS NO.2, 225, NARIMAN POINT, MUMBAI [PAN : AAACM 7312G] ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI CHAITANYA ANJARIA, SR.AR - CIT, RESPONDENT BY : SHRI S.E. DASTUR & SHRI HARSH KOTHARI DATE OF HEARING : 1 5 - 11 - 201 8 DATE OF PRONOUNCEMENT : 27 - 11 - 201 8 O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER: THE FIRST ISSUE IN THIS APPEAL OF REVENUE IS DIRECT ED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS )-8, MUMBAI, QUASHING THE REOPENING OF ASSESSMENT BY THE AO U/S. 147 READ WITH SECTION 148 OF THE INCOME TAX ACT, 19 61 [HEREIN AFTER REFERRED TO AS ACT]. FOR THIS, REVENUE HAS RAISED THE FOLLOWING GROUND: ITA NO. 7488/MUM/2016 2 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD.CIT(A) IS JUSTIFIED IN QUASHING THE RE-OPENING P ROCEEDINGS U/S. 147 OF THE I.T. ACT, 1961 HOLDING THAT NO PROPER REASONS TO BELIEVE WAS RECORDED OR CONVEYED BY THE ASSESSING OFFICER WITHO UT APPRECIATING THE FACT THAT THE AO WHILE INVOKING THE PROVISIONS OF S ECTION 147 HAD DULY RECORDED REASONS FOR RE-OPENING OF THE ASSESSMENT. 2. BRIEFLY STATED FACTS ARE THAT FOR THE RELEVANT A Y. 2009-10, ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE DECLARING A LOSS OF 1,69,91,155/- ON 28-09-2009. THE ORIGINAL ASSESSME NT WAS COMPLETED U/S. 143(3) OF THE ACT ON 16-12-2011, ACCEPTING THE RETURNED LOSS. THEREAFTER, THE AO ISSUED NOTIC E U/S. 148 OF THE ACT ON 21-03-2014 AND ASSESSMENT WAS RE-OPENED U/S. 147 READ WITH SECTION 148 OF THE ACT. 3. DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY THE DIFF ERENCE AMOUNTING TO 5,17,98,729/- SHOULD NOT BE ADDED TO THE RETURNED INCOME OF THE ASSESSEE AS PER THE INCENTIV E PAID TO THE DIRECTORS, COMMISSION INCOME WORKED OUT AND EARNED BY ASSESSEE-COMPANY AT 19,33,24,196/- AS AGAINST CREDITED IN THE P&L A/C AT 14,15,25,472/-. AO OBSERVED THAT THE ASSESSEE- COMPANY HAS PAID A SUM OF 3,86,64,839/- TO ITS DIRECTOR SHRI S.J. MARSHALL, AS INCENTIVE AND ALSO SALARY OF 1,08,00,000/-. AO NOTED THAT THE DIRECTOR, SHRI S.J. MARSHALL WAS 20% ITA NO. 7488/MUM/2016 3 SHAREHOLDER IN THE ASSESSEE-COMPANY AND THEREFORE, ACCORDING TO HIM, THE INCENTIVE PAID WAS NOT COVERED U/S. 36(1)( II) OF THE ACT. ACCORDING TO AO, SINCE SHRI S.J. MARSHALL, DIRECTOR WHO IS A 20% SHAREHOLDER IN THE ASSESSEE-COMPANY COULD NOT HAVE GOT INCENTIVE PAYMENT IN THE FORM OF DISTRIBUTED PROFIT S OF THE COMPANY AND IT LEADS TO A CONCLUSION THAT 20% OF IN CENTIVE PAID TO HIM IS NOT COVERED U/S. 36(1)(II) OF THE ACT AND HENCE, HE DISALLOWED THE INCENTIVE. AO ALSO OBSERVED THAT TH E ASSESSEE- COMPANY HAS BROUGHT BACK 275 EQUITY SHARES OF 100/- FROM M/S. COOMIE ERUCH DESAI FOR A TOTAL VALUE OF 48,51,000/-. ACCORDING TO AO, THE ASSESSEE-COMPANY HAS PAID THIS MONEY FROM ITS RESERVES AND SURPLUS TO SATISFY THE REQUIR EMENT OF BUYBACK OF SHARES. ACCORDING TO AO THIS IS COLOURA BLE DEVICE AND HENCE HE ALSO TREATED THE AMOUNT OF 48.51 LAKHS AS DIVIDEND AND DISALLOWED. ACCORDINGLY, AO DETERMINED THE TOT AL INCOME VIDE HIS ORDER DT. 30-03-2015 AT 4,25,40,540/-. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). 4. BEFORE THE CIT(A), ASSESSEE FIRST OF ALL CONTEST ED THE RE- OPENING OF ASSESSMENT. IT WAS CONTENDED THAT THE A SSESSMENT WAS RE-OPENED U/S. 147 BY ISSUING NOTICE U/S. 148 ITA NO. 7488/MUM/2016 4 DT. 21-03-2014 WAS OBJECTED BY THE ASSESSEE VIDE LE TTER DT. 20-02-2015, BUT THE ASSESSEE-COMPANY HAS NOT RE CEIVED ANY ORDER, REJECTING THE OBJECTIONS AGAINST THE REOPENI NG OF THE ASSESSMENT. ASSESSEE ALSO CONTENDED BEFORE THE CIT (A) THAT THE REASONS FOR REOPENING OF ASSESSMENT WERE NEITHER CO MMUNICATED TO THE ASSESSEE-COMPANY NOR THESE REASONS HAVE BEEN SPECIFIED IN THE ASSESSMENT ORDER. CIT(A) REMANDED THE CONTE NTION OF ASSESSEE TO THE FILE OF THE AO. AO SENT THE REMAND REPORT VIDE LETTER NO. ACIT-3(2)(1)/REMAND REPORT/2016-17, DATE D 19-08- 2016. THE REMAND REPORT WAS REFERRED TO ASSESSEE FO R ITS COMMENT AND ASSESSEE COMMENTED THAT NO REASONS RECO RDED WERE SUPPLIED TO ASSESSEE AND EVEN THE REMAND REPOR T IS COMPLETELY SILENT ABOUT REOPENING OF ASSESSMENT, WH ICH WAS OBJECTED TO BY THE ASSESSEE. THE CIT(A) AFTER CONS IDERING THAT NO REASONS WERE SUPPLIED TO ASSESSEE AND THE OBJECTION S RAISED REGARDING REOPENING WAS NOT ADJUDICATED. HE QUASHE D THE REOPENING VIDE PARA 7.1.2 TO 7.1.7 AS UNDER: 7.1.2. DURING APPELLATE PROCEEDINGS, THE APPELLANT SUBMITTED WRITTEN SUBMISSION DATED 03/06/2016 WHEREIN IT WAS CONTENDE D THAT THE REASONS FOR REOPENING WERE NOT COMMUNICATED, THAT A SSESSMENT WAS REOPENED ON BASS OF AUDIT OBJECTION AND THAT NO ORD ER WAS PASSED BY THE ASSESSING OFFICER FOR REJECTING OBJECTIONS TO R EOPENING THEASSESSMENT. ITA NO. 7488/MUM/2016 5 7.1.3. IT IS NOTED THAT THE ASSESSING OFFICER HAS N OT MENTIONED THE REASONS FOR REOPENING ASSESSMENT IN THE ASSESSMENT ORDER BUT HAS HE MADE REFERENCE TO HIS LETTER DATED 20/2/2015 MEETIN G OBJECTIONS RAISED BY THE APPELLANT. THEREFORE, TO VERIFY ASSERTIONS M ADE BY THE APPELLANT A REMAND REPORT ON THIS ISSUE WAS CALLED FOR VIDE LET TER DATED 20/06/2016. THE ASSESSING OFFICER SUBMITTED REMAND REPORT VIDE LETTER DATED 19/06/2016. AT PARA 1, THE ASSESSING OFFICER STATED THAT THE APPELLANT DID NOT RAISE ANY OBJECTION TO REOPENING. AT PARA 2, THE ASSESSING OFFICER HAS REPRODUCED ORDER SHEET NOTING S DATED 16/02/2015. WITH REGARD TO THE ASSESSMENT PROCEEDIN GS, THE ORDERSHEET NOTING MENTIONS, '...(U.S. MEHTA, DIRECT OR) WAS ASKED THAT HE HAS ANY OBJECTION IN THE LEAGUE-ASSESSMENT PROCEEDI NGS. HE REPLIED IN NEGATIVE. NOTICE UNDER SECTION 143(1) IS ISSUED. HE IS SHOW CAUSED......'. THEREAFTER, THE ASSESSING OFFICER ASKED THE APPELLA NTTO SHOW CAUSE WHY ADDITIONS REFERRED TO IN THE PRECEDING PARAGRAP H SHOULD NOT BE MADE. 7.1.4 AT PARA 4 OF THE REMAND REPORT, THE ASSESSING OFFICER REFERRED TO APPELLANT'S LETTER DATED NIL FILED IN CONNECTION TH E REOPENING OF ASSESSMENT. THE ASSESSING OFFICER REFERS TO PAGE 2 OF THE LETTER WHICH STATES, 'UPON ENQUIRY WE ARE INFORMED THAT THE ASSE SSMENT HAS BEEN REOPENED YOU TO AUDIT OBJECTION/OBSERVATION WHICH A RE UNDER:.....' ACCORDING TO THE ASSESSING OFFICER,'NOW, AS PER ORD ER SHEET NOTING DATED 16/02/2015, THE ASSESSEE WAS MADE AWARE OF THE ISSU ES, WHICH ARE SAME AS QUOTED BY HIM AS REASONS FOR REOPENING IN T HE LETTER IS QUOTED ABOVE. IN THIS SITUATION IT IS HARD TO UNDERSTAND T HAT HOW ASSESSEE WAS NOT KNOWING THE REASONS FOR REOPENING IF HE HIMSELF IS WRITING THE SAME. 7.1.5 IN THE REMAND REPORT, THE ASSESSING OFFICER F URTHER REFERRED TO APPELLANT'S LETTER DATED 20/02/2015 AND EMPHASISED, 'THAT NOWHERE ASSESSEE HAD OBJECTED THE REOPENING PROCEEDINGS IN HIS LETTER DATED 20 FEBRUARY, 2015.' AT PARA 6 OF THE REMAND REPORT, TH E ASSESSING OFFICER MENTIONS, 'AS PER THE ASSESSMENT ORDER, THE ASSESSE E'S OBJECTION REGARDING REOPENING PROCEEDINGS WAS REJECTED VIDE S PEAKING ORDER DATED 20/02/2015, BUT COPY OF THE SAME IS NOT PRESE NTLY AVAILABLE ON THE FILE. ALSO, IT IS TO BE NOTED THAT NOSPECIFIC L ETTER FROM ASSESSEE FILING THE OBJECTIONS AGAINST REASSESSMENT PROCEEDINGS IS AVAILABLE ON RECORD AND AS PER POINT NO. 2 ABOVE, THE ASSESSEE H AD HIMSELF NOT RAISED ANY OBJECTION TO THE REASSESSMENT PROCEEDIN GS. 7.1.6 THE REPORT OF THE ASSESSING OFFICER WAS FORWA RDED TO THE APPELLANT VIDE LETTER DATED 29/08/2016 FOR COMMENTS. THE APPE LLANT FILED REJOINDER DATED 19/09/2016. THE SAME HAS BEEN EXTRA CTED ABOVE. IN LETTER DATED NIL FILED AT ANNEXURE 8 OF THE REJOIND ER, IT IS NOTED THAT THE ITA NO. 7488/MUM/2016 6 APPELLANT HAD SPECIFICALLY ASKED THE ASSESSING OFFI CER, 'TO GIVE US THE REASONS FOR REOPENING OF THE ABOVE CASE UNDER SECTI ON 148 OF THE TAX ACT, 1961.' THUS, AS PER THE COPY OF LETTER DATED N IL FILED BY THE APPELLANT BEFORE THE ASSESSING OFFICER FORWARDED AL ONG WITH REMAND REPORT AT ANNEXURE A-4, ON 2 ND PAGE, THE APPLICANT HAD SPECIFICALLY STATED, 'DURING OF THE PROCEEDINGS, WE HAD FILED OU R OBJECTIONS TO THE RE- OPENING OF THE ASSESSMENT FOR THE AY 2009-2010 AND REQUEST YOU TO KINDLY DISPOSE OF THE OBJECTIONS BEFORE PASSING AND ORDER U/S. 143(3) OF THE INCOME TAX ACT, 1961.' FURTHER, ON PAGE 3, THE LETTER STATED, WITHOUT PREJUDICE TO THE RIGHTS OF THE COMPANY TO CHALLENGE THE RE-OPENING OF THE ASSESSMENT, WE WISH TO MAKE OUR SUBMISSION ON MERIT IS AS UNDER:........' 7.1.7 FROM A PERUSAL OF THE DOCUMENTS AVAILABLE ON RECORD AND THOSE SUPPLIED BY THE ASSESSING OFFICER WITH THE REMAND R EPORT THE FOLLOWING FACTS BECOME APPARENT: I. THERE IS NO DOCUMENTARY PROOF OF RECORDING OF RE ASON PRIOR TO ISSUING NOTICE U/S 148. II. ON PERUSAL OF ORDER SHEET NOTING DATED 16/02/2 015 REVEALS THAT THE APPELLANT WAS 'SHOW CAUSED' ON THAT DATE AND THUS M ADE AWARE OF THE REASONS FOR REOPENING. HOWEVER, THERE IS NO DOCUMEN TARY EVIDENCE THAT THE ASSESSING OFFICER HAD CONVEYED REASONS FOR REOP ENING TO THE APPELLANT IN RESPONSE TO THE APPELLANTS SPECIFIC RE QUEST. III. THE ASSESSING OFFICER HAS NOT BEEN ABLE TO PRO VIDE ANY EVIDENCE THAT ESTABLISHES THAT THE OBJECTIONS RAISED BY THE APPEL LANT WERE MET. THE REASSESSMENT ORDER REFERS TO A LETTER DATED 20/02/2 015 WHEREBY THE OBJECTIONS WERE REJECTED. HOWEVER, AS PER THE REMAN D REPORT, NO SUCH LETTER IS AVAILABLE ON ASSESSMENT RECORDS. IV. AT NO POINT HAS THE ASSESSING OFFICER DENIED TH E ASSERTION OF THE APPELLANT THAT THE REOPENING WAS DONE ON BASIS OF A UDIT OBJECTION. V. IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDING S, VIDE NOTICE DATED 12/04/2011, THE ASSESSING OFFICER HAD SPECIFICALLY ASKED FOR DETAILS OF SALARIES AND INCENTIVES OF DIRECTORS AND DETAILS OF INCREASE IN SHARE CAPITAL, AMOUNT, MODE OF PAYMENT ETC. THESE QUERIES WERE SPECIFICALLY ANSWERED BY THE APPELLANT VIDE LETTER DATED 16/12/2 011 AND 20/06/2011 WHEREIN COMPLETE DETAILS OF COMMISSION I S PAID TO DIRECTORS/EMPLOYEES AS WELL AS BUYBACK OF SHARES WE RE SUBMITTED. THE ASSESSMENT ORDER UNDER SECTION 143 (3) DATED 16/12/ 2011 WAS PASSED BY THE ASSESSING OFFICER AFTER CONSIDERATION OF THE SE DETAILS. ITA NO. 7488/MUM/2016 7 4.1. FURTHER, THE CIT(A) VIDE PARAS 7.1.9 TO 7.10. HELD AS UNDER: 7.1.9 IN THE INSTANT CASE, THERE IS NO DOCUMENTARY EVIDENCE THAT THE ASSESSING OFFICER HAD RECORDED REASONS PRIOR TO ISS UE OF NOTICE U/S. 148 NOR THAT THE SAME WERE SUPPLIED. IT IS SEEN THAT TH E ASSESSING OFFICER HAD 'MADE AWARE' THE APPELLANT OF THE THREE ISSUES VIDE ORDER SHEET ENTRY DATED 16/02/2015. MORE IMPORTANTLY, IT IS NOT ED THAT THE APPELLANT HAD SUBMITTED WRITTEN OBJECTIONS TO THE A SSESSING OFFICER, HOWEVER, THERE IS NOTHING ON RECORD TO ESTABLISH THAT THESE OBJECTIONS WERE MET BY A SPEAKINGORDER. THE REFERENCE OF SUCH AN ORDER DATED 20/02/2015 MADE IN THE ASSESSMENT ORDER REMAINS UNSUBSTANTIATED AS THERE IS NO SUCH ORDER AVAILABLE ON RECORD. 7.1.10 IT IS WELL ESTABLISHED LAW THAT FOR ARRIVING AT 'REASON TO BELIEVE', THE ASSESSING OFFICER SHOULD HAVE NEW TANGIBLE MATE RIAL IN HIS POSSESSION TO ACQUIRE JURISDICTION U/S. 147/148. AS NOTED ABOVE, IN THE INSTANT CASE, THE ASSESSING OFFICER HAS NOT DENIED THAT THE CASE WAS REOPENED ON BASIS OF AUDIT OBJECTION. HON'BLE BOMBAY HIGH COURT IN ICICI HOME FINANCE (WP 430/2012 DECIDED ON 25.07.20 12) HELD THAT REOPENING SOLELY BASED ON THE REPORT OF AN AUD IT PARTY IS INVALID. 4.2. FINALLY, CIT(A) QUASHED THE RE-ASSESSMENT AS N O REASONS WERE RECORDED BY THE AO AND FOR THIS, HE OBSERVED I N PARA NOS. 7.1.19 TO 7.1.21 AS UNDER: 7.1.19 THE CONTENTION OF THE ASSESSING OFFICER, IN THE REMAND REPORT, THAT THE APPELLANT HAD NEVER OBJECTED TO REOPENING IS NOT SUPPORTED BY THE OBSERVATION OF THE ASSESSING OFFICER IN THE REA SSESSMENT ORDER IN HIS 1 ST PARA STATING, 'ON 20/02/2015 THE ASSESSES OBJECTED THE REOPENING PROCEEDINGS AND VIDE THIS OFFICE LETTER DATED 20/02 /2015 THE OBJECTION OF THE ASSESSEE WAS REJECTED WITH SPEAKING ORDER.' THUS, THERE CAN BE NO DISPUTE THAT THE APPELLANT HAD OBJECTED THE REOP ENING. THE LETTER OF THEAPPELLANT TO THE ASSESSING OFFICER REFERRED TO A BOVE, ALSO INDICATES THAT OBJECTION WAS RAISED. THAT BEING ACCEPTED, IT WAS IMPERATIVE FOR THE ASSESSING OFFICER TO MEET THE OBJECTIONS BY A SPEAK ING ORDER. HOWEVER, THE APPELLANT DID NOT RECEIVE SUCH AN ORDER NOR DOE S THE ASSESSING OFFICER HAVE ANY EVIDENCE ON HIS RECORD. UNDER THE CIRCUMSTANCES, IT ITA NO. 7488/MUM/2016 8 CANNOT BE ASSUMED THAT SUCH AN ORDER WAS ISSUED AND SERVED UPON THE APPELLANT. 7.1.20 ALTHOUGH, IN LIGHT OF THE NUMEROUS DECISIONS OF JURISDICTIONAL COURTS AND HON'BLE SUPREME COURT CITED ABOVE, THE R EOPENING IN THE INSTANT CASE SUFFERS FROM BOTH PROCEDURAL AS WELL A S LEGAL INFIRMITIES, IT CAN BE EXAMINED IF THE ASSESSING OFFICER COULD HAVE REACHED A REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT BASED ON MATERIAL AVAILABLE ON HIS RECORDS FROM ORIGINAL ASSESSMENT P ROCEEDINGS. THIS WILL B DONE IN THE LATER PART OF THIS ORDER WHICH WOULD DISCUSS THE ISSUES WITHOUT PREJUDICE TO THE DECISION UNDER GROUND OF A PPEAL NO. 1. 7.1.21 AS FAR AS THE REOPENING OF THE CASE IS CONCE RNED, I FIND THAT THERE IS NO EVIDENCE OF PROPER 'REASON TO BELIEVE' BEING RECORDED OR CONVEYED BY THE ASSESSING OFFICER. FURTHERMORE, IN REOPENING THE ASSESSMENT, THE ASSESSING OFFICER DID NOT HAVE TANGIBLE MATERIAL. R ATHER, THE ASSESSING OFFICER REOPENED THE ASSESSMENT TO MAKEFISHING ENQU IRIES. MOREOVER, THE ASSESSING OFFICER HAS NOT DENIED THE CONTENTION OF THE APPELLANT THATTHE CASE WAS REOPENED BASED ON AUDIT OBJECTION. THUS, IT CAN BECONCLUDED THAT IT WAS A CHANGE OF OPINION THAT PR OPELLED THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT. THESE S EVERAL CIRCUMSTANCES ARE AGAINST THE RATIO OF COURT DECISI ONS AS CITED ABOVE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF JUDICIAL PRONOUNCEMENTS REFERRED TO ABOVE, THE ACTION OF THE ASSESSING OFFICERIN REOPENING THE ASSESSMENT AND ISSUING NOTICE UNDER S ECTION 148 AND PASSING ASSESSMENTU/S. 143(3)/148 CANNOT BE UPHELD. ACCORDINGLY, THIS GROUND OF APPEAL IS ALLOWED. AGGRIEVED, REVENUE IS IN SECOND APPEAL ON THIS JURI SDICTIONAL ISSUE. 5. BEFORE US, LD. SR. DR COULD NOT SUPPORT OR CONTR ADICT THE FINDINGS OF CIT(A) THAT REASONS WERE RECORDED ARE S UPPLIED TO THE ASSESSEE. 6. ON THE OTHER HAND, LD. SR. COUNSEL SHRI S.E. DAS TUR, SUPPORTED THE ORDER OF CIT(A) AND STATED THAT ONCE THERE IS NO ITA NO. 7488/MUM/2016 9 REASONS RECORDED AVAILABLE IN THE ASSESSMENT RECORD S, IT CAN BE SAFELY PRESUMED THAT NO REASON AT ALL ARE RECORDED. HENCE, HE SUPPORTED THE ORDER OF CIT(A), WHO HAS RIGHTLY QUAS HED THE RE- ASSESSMENT. 7. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO IN HIS REMAND REPORT CLEARLY MENTIONED THAT THE ASSESSEE W AS MADE AWARE OF THE ISSUES ON 16-02-2015 BY WAY OF ORDER S HEET ENTRY AND NO REASONS WHAT-SO-EVER WAS PROVIDED TO ASSESSE E RECORDED FOR ISSUANCE OF NOTICE U/S. 148. THE NOTICE U/S. 1 48 IS DT. 21-03-2014. AO NOTED IN HIS ORDER SHEET ENTRY DT. 16-02-2015 THAT NOW, AS PER ORDER SHEETING NOTING DATED 16/02/2015, THE ASSESSEE WAS MADE AWARE OF THE ISSU ES, WHICH ARE SAME AS QUOTED BY HIM AS REASONS FOR REOPENING IN THE LETTER IS QUOTED ABOVE. IN THIS SITUATION IT IS HARD TO UNDER STAND THAT HOW ASSESSEE WAS NOT KNOWING THE REASONS FOR REOPENING IF HE HIMSELF IS WRITING THE SAME. 7.1. FROM THE ABOVE, IT CAN SAFELY BE PRESUMED THAT THE REASONS ARE NOT AT ALL RECORDED. MOREOVER, BEFORE US NOW, THE REVENUE COULD NOT PRODUCE ANY REASONS DESPITE SPECIFIC ORDE R SHEET ENTRY ITA NO. 7488/MUM/2016 10 NOTING DT. 13-06-2018 THAT REASONS ARE TO BE PRODUC ED BEFORE THE BENCH BUT NOT PRODUCED. THE TRIBUNAL RECORDED THE F OLLOWING ENTRY ON 13-06-2018: IT IS NOTED THAT ON 18-04-2018, THIS APPEAL WAS AD JOURNED AT THE REQUEST OF THE DEPARTMENT. TODAY ALSO LD.DR HAS NO T PRODUCED THE COPY AT THE REASONS RECORDED OR THE ASSESSMENT RECO RD. THE LD.DR IS STATED THAT LAST OPPORTUNITY MAY BE PROVIDED TO THE REVENUE. CONSIDERING THE OBSERVATION MADE IN THE ORDER OF TH E LD.CIT(A) THE LD.DR IS DIRECTED TO PRODUCE THE COPY OF THE REASON S RECORDED OR DISPOSAL AT THE SAME, IF ANY ALONG WITH ASSESSMENT RECORD POSITIVELY ON THE NEXT DATE OF HEARING. THIS IS LAST OPPORTUNITY TO THE DEPT. HEARING IS ADJOURNED TO 19-07-2018. XXXX XXXX AM JM 7.2. IN VIEW OF THE ABOVE, IT CAN SAFELY BE PRESUME D THAT THE REVENUE IS NOT INTERESTED IN PRODUCING THE REASONS RECORDED IF AT ALL AND HENCE, IT SEEMS THAT THE REASONS ARE NOT AT ALL RECORDED FOR ISSUANCE OF NOTICE U/S. 148. HENCE, WE ARE OF THE VIEW THAT THE CIT(A) HAS RIGHTLY QUASHED THE RE-ASSESSMENT PR OCEEDINGS AND WE CONFIRM THE SAME. 8. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH DAY OF NOVEMBER, 2018 SD/- SD/- (RAJESH KUMAR) (MAHA VIR SINGH) ACCOUNTANT MEMBER JUDICI AL MEMBER MUMBAI; DATED: 27 TH NOVEMBER, 2018 TNMM ITA NO. 7488/MUM/2016 11 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A),MUMBAI 4. THE CIT 5. DR, D BENCH, ITAT, MUMBAI BY ORDER, #TRUE COPY # ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI