MUNIWAR ABAD CHRTIABLE TRUST, MUMBAI V. ASST CIT (E) 2(1), MUMBAI

ITA 784/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9877 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 09-06-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 05-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY SINGH
• Assessee Lawyers: MANISH K K ANTH
• Keywords: Reopening of assessment; Capital asset; Depreciation; Charitable institution; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148; 263; 11

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -GBENCH MUMBAI , , , BEFORE S/SHRI RAJENDRA,ACCOUNTANT MEMBER AND RAM LAL NEGI,JUDICIAL MEMBER ./I.T.A./784-85/MUM/2015, /ASSESSMENT YEAR: 2004-05 & 2005-06 M/S. MUNIWAR ABAD CHARITABLE TRUST 405A/407, JOLLY BHAVAN NO.1 10, NEW MARINE LINES,MUMBAI-400 020. PAN:AAATM 0140 K VS. ASST. CIT, EXEMPTION -2 (1) 6TH FLOOR, PIRAMAL CHAMBERS LALBAUG, PAREL MUMBAI-400 012. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI SANJAY SINGH-CIT-DR ASSESSEE BY: S/SHRI PORUS KAKA & MANISH K. KANTH / DATE OF HEARING: 16.06.2017 / DATE OF PRONOUNCEMENT: 06.09.2017 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) / PER RAJENDRA, AM - CHALLENGING THE ORDERS,DATED 18/12/2014,OF THE CIT( A)-1 MUMBAI THE ASSESSEE HAS FILED THE PRESENT APPEALS FOR THE ABOVE MENTIONED TWO ASSESSM ENT YEARS (AYS.). ASSESSEE-IS A CHARITABLE TRUST.DETAILS OF FILING OF RETURNS OF IN COME RETURNED INCOMES, ASSESSED INCOMES, ETC., CAN BE SUMMARIZED AS UNDER :- A.Y. ROI FILED ON RETURNED INCOME ASSESSMENT DT. AS SESSED INCOME 2004-05 30/11/2006 NIL 27/12/2011 RS7.80 CRORES 2005-06 28/12/2007 NIL 27/12/2011 RS.11.62 CRORES ITA/784/MUM/2015-AY.2004-05: 2. FIRST EFFECTIVE GROUND OF APPEAL(G.S OA-4) IS ABOU T REOPENING THE ASSESSMENT U/S. 147 OF THE ACT AFTER A LAPSE OF 4 YEARS FROM THE END OF AS SESSMENT YEAR.ASSESSEE,A CHARITABLE-TRUST, FILED ITS ROI ON 31/10/2004,RETURNING NIL INCOME.TH E ASSESSING OFFICER (AO) COMPLETED THE ASSESSMENT U/S.143(3). LATER ON,HE ISSUED A NOTICE U/S. 148 OF THE ACT ON 28/3/2011,AS HE WAS OF THE OPINION THAT TAXABLE INCOME HAD ESCAPED ASSESSMENT.IN RESPONSE T O THE SAID NOTICE, THE ASSESSEE VIDE ITS LETTER,DT.31/3/2011,REQUESTED AO TO CONSIDER THE OR IGINAL RETURN AS RETURN FILED IN RESPONSE TO THE NOTICE.ON THE REQUEST OF THE ASSESSEE,HE COMMUN ICATED THE REASONS OF RE-OPENING.THE ASSESSEE FILED OBJECTION IN THAT REGARD AND CHALLEN GED THE REOPENING.AS PER THE AO OBJECTIONS RAISED BY THE ASSESSEE WERE REJECTED BY HIM,VIDE OR DER,DT.15/12/2011.DURING THE REASSESSMENT PROCEEDINGS,THE AO OBSERVED THAT THE ASSESSEE HAD S OLD A PLOT OF LAND,THAT IT HAD RECEIVED SALE CONSIDERATION OF RS.7.80 CRORES,THAT IT HAD FAILED TO INVEST THE SALE CONSIDERATION OF THE IMMOVABLE PROPERTY AS PER THE PROVISIONS OF SECTION 11(5) OF THE ACT.HE HELD THAT IT WAS NOT ENTITLED TO GET BENEFIT OF ACCUMULATION AS PER THE SUB CLAUSE(B) OF SECTION 11 (2) OF THE ACT.AS 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 2 A RESULT,SALE CONSIDERATION OF RS.7.80 CRORES,RECE IVED BY THE ASSESSEE,WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE FOR THE YEAR UNDER APPEAL. 3. AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREFE RRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA).BEFORE HIM,IT WAS ARGUED T HAT THE REOPENING OF ASSESSMENT U/S. 147 WAS BAD IN LAW AND ILLEGAL,THAT THERE WAS NO FA ILURE ON PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS.IT RELIED UPON C ERTAIN CASE LAWS AND ALSO CHALLENGED THE QUANTUM OF ADDITION. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE A ND THE RE-ASSESSMENT ORDER OF THE AO,THE FAA UPHELD THE REOPENING OF THE ASSESSMENT AND HELD HELD THAT VARIOUS ESSENTIAL AND MATERIAL FACTS REGARDING THE NATURE AND MODE OF CAPITAL ASSE TS HELD BY THE TRUST AND SOLD OUT DURING THE YEAR WERE NOT FULLY DISCLOSED,THAT THE AO HAD ALSO NOT VERIFIED AND EXAMINED THE MODE AND NATURE OF ACQUISITION OF CAPITAL ASSETS HELD BY IT, THAT IT HAD NOT PROVIDED THE FULL DETAILS, THAT IT HAD NOT PLACED ON RECORD THE NECESSARY DETAILS A ND DOCUMENTS WHICH COULD LEAD TO THE CONCLUSION THAT THERE WERE MATERIAL DISCREPANCIES I N RECEIPT OF SALE CONSIDERATION AND THE ALLEGED FIXED DEPOSITS PURCHASED BY THE ASSESSEE, T HAT THE RECORD OF CASH AND BANK BALANCES, REFLECTING COMMON POOL OF FUNDS WAS NOT SUFFICIENT TO SEGREGATE THE AMOUNTS AND DATES OF FIXED DEPOSITS AS REQUIRED FOR MAKING CLAIM OF EXEM PTION U/S.11(1A)OF THE ACT,THAT THE CLAIM OF FIXED DEPOSITS, CLASSIFIED AND RECORDED IN THE BALANCE SHEET UNDER THE HEAD CASH AND BANK BALANCES WAS INCOMPLETE DISCLOSURE, THAT IT WA S MISLEADING ACCOUNTING, THAT THERE WAS NO FULL AND TRUE DISCLOSURE BY THE ASSESSEE ON THE ISSUE OF SALE AND ACQUISITION AND SUBSEQUENT COMPLIANCE OR CONDITION IN THE CONTEXT OF CAPITAL A SSETS. HE REFERRED TO THE CASES OF GIRILAL & CO.(300ITR); CHANDRIKA EDUCATION TRUST (224ITR);VAR DHMAN SPNG & GENERAL MILLS LTD.; SOUTH INDIA CORPORATION AGENCIES PVT.LTD.(147CTR) A ND DISMISSED THE GROUND RAISED BY THE ASSESSEE WITH REGARD TO VALIDITY OF REOPENING.HE U PHELD THE ADDITION ON MERITS ALSO. 4. BEFORE US,THE AUTHORISED REPRESENTATIVE(AR)CONTENDE D THAT IN THE ORIGINAL RETURN OF INCOME THE ASSESSEE HAD FURNISHED DETAILS ABOUT THE CAPITAL GAINS AND OF THE FIXED DEPOSITS, THAT IN THE NOTE TO THE COMPUTATION OF INCOME IT HA D SPECIFICALLY MENTIONED THAT IT HAD SOLD DEVELOPMENT RIGHTS OF IMMOVABLE PROPERTIES AT MUMBA I FOR AN AMOUNT OF RS.7.80 CRORES VIDE AGREEMENT FOR SALE,DATED 26/11/2002 READ WITH DEVEL OPMENT AGREEMENT DATED 30/12/ 2003, THAT THE AO WAS INFORMED ABOUT THE INVESTMENT MADE BY IT IN BANK FIXED DEPOSITS, THAT IT HAD MENTIONED THE FACT THAT ENTIRE SALE CONSIDERATION W AS INVESTED IN ANOTHER THE CAPITAL ASSET I.E. THE BANK FIXED DEPOSIT,THAT DETAILS OF SALE CONSIDE RATION AND FIXED DEPOSITS MADE FOR EXEMP- TION FROM CAPITAL GAINS WERE ENCLOSED ALONG WITH TH E COMPUTATION OF INCOME FOR THE YEAR 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 3 UNDER CONSIDERATION,THAT THE AO HAD MADE FURTHER EN QUIRIES ABOUT THE SALE OF DEVELOP-MENT RIGHTS,THAT IT HAD FURNISHED THE SANCTION LETTER OF THE CHARITY COMMISSIONER FOR SALE OF THE PROPERTY,THAT THE AO HAD MADE ENQUIRIES ABOUT THE N AMES AND ADDRESSES OF THE PARTNERS OF THE PURCHASER,THAT IT HAD FILED EXTRACT OF BANK STATEME NT FOR PAYMENT RECEIVED FROM VALENTINE DEVELOPERS LTD.(VDL)ALONG WITH THE BANK BOOK GIVING DETAILS NARRATION OF ALL RECEIPTS AND PAYMENTS,THAT AFTER CONSIDERING THE DETAILS FILED B Y THE ASSESSEE THE AO HAD PASSED THE ORDER U/S.143 (3)OF THE ACT, THAT THERE WAS NO FAILURE ON PART OF THE ASSESSEE TO DISCLOSE THE MATERIAL FACTS,THAT ASSESSEE HAD AGREED FOR ASSIGNMENT OF TH E DEVELOPMENT RIGHTS IN THE PART PROPERTY AT MUMBAI TO VDL SUBJECT TO THE SANCTION OF THE CHARIT Y COMMISSIONER, THAT AFTER GETTING THE SANCTION ON 17/03/2003 IT ENTERED INTO A DEVELOPMEN T AGREEMENT ON 24/12/2003, THAT OUT OF RS.7.80 CRORES THE SUM OF RS. 2 CRORES WAS RECEIVED DURING THE PREVIOUS YEAR RELEVANT TO AY. 2003-04,THAT RS.5.80 CRORES WERE RECEIVED IN THE PR EVIOUS YEAR RELEVANT TO THE AY. 2004-05, THAT IT HAD FURNISHED CHART GIVING DETAILS OF BANK FIXED DEPOSITS AND MUTUAL FUNDS,THAT THE AO WAS AWARE OF THE FACT THAT IT HAD RECEIVED RS. 7.80 CRORES ON ASSIGNMENT OF DEVELOPMENT RIGHTS,THAT THE AMOUNTS REMAINED INVESTED FOR PERIO DS GREATER THAN SIX MONTHS IN ALL CASES, INCLUDING RENEWALS,THAT WITHDRAWAL WAS OUT OF EARLI ER FIXED DEPOSITS UNCONNECTED WITH THE SALES,THAT AFTER CONSIDERING ALL THESE FACTS THE AO HAD COMPUTED THE INCOME OF THE ASSESSEE AT RUPEES NIL AND HAD ALLOWED THE BENEFITS OF SECTION 11 (1A) OF THE ACT.HE FURTHER ARGUED THAT THE REASONS FOR REOPENING SHOWED TOTAL NON-APPLICAT ION OF MIND BY THE AO, THAT SAME REASONS WERE GIVEN FOR A CONSOLIDATED BLOCK OF TWO YEARS,TH E REASONS WERE BASED ON ERRONEOUS INFERENCES DRAWN FROM THE FACTS ALREADY DISCLOSE DU RING THE ORIGINAL ASSESSMENT,THAT THE OBJECTIONS TO REOPENING WERE REJECTED BY WAY OF A N ON-SPEAKING ORDER,THAT THE REASSESSMENT ORDER DID NOT DEAL WITH ANY OF THE SUBMISSIONS/ OBJ ECTIONS RAISED BY THE ASSESSEE,THAT NOTICE OF REOPENING AND THE REASONS RECORDED WERE NOT BASED O N ANY FRESH TANGIBLE MATERIAL WHICH WERE NOT ON RECORD THAT IT WAS A CASE OF CHANGE OF OPINI ON, THAT WHILE REOPENING THE ASSESSMENT THE AO HAD NOT RELIED UPON ANY FRESH TANGIBLE MATERIAL. HE RELIED UPON THE CASES OF JASHAN TEXTILE MILLS (284 ITR 542),GERMAN REMEDIES LTD (28 7 ITR 494),TALATI & PANTHEKY (362 ITR 362),ARONI COMMERCIALS (362 ITR 403),DENA BANK (76 TAXMANN.COM 279), ICICI HOME FINANCE CO.LTD. (210 TAXMAN 67).HE FURTHER ARGUED T HAT INVESTMENT IN FIXED DEPOSIT WAS SUFFICIENT TO CLAIM EXEMPTION U/S.11(1A) OF THE ACT ,THAT NO INCOME LIABLE TO TAX HAD ESCAPED ASSESSMENT.HE REFERRED TO CASE OF HINDUSTAN WELFARE TRUSTS (206 ITR 138) AND EAST INDIA CHARITABLE TRUSTS(206 ITR 152). 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 4 4.1. THE DEPARTMENTAL REPRESENTATIVE (DR) ARGUED THAT SO ME OF THE FDS WERE INVESTED FOR SHORT PERIODS AND SOME WERE EVEN WITHDRAWN PRIOR TO MATURITY,THAT THE NET CONSIDERATION WAS NOT UTILISED FULLY IN ACQUIRING ANOTHER CAPITAL ASS ET AND THAT ASSESSEE WAS ENTITLED TO CLAIM EXEMPTION, THAT THE AO DID NOT EXAMINE THE ASPECT O F ELIGIBILITY OF EXEMPTION OF CAPITAL GAINS IN THE ORIGINAL ASSESSMENT,THAT HE HAD NOT FORMED A NY OPINION, THAT THE RECONCILIATION CHART SHOWING AMOUNTS RECEIVED PRIOR TO AY. 2004-05 AND T HE USE OF FUNDS FOR MUTUAL FUND WAS GIVEN ONLY IN THE REASSESSMENT PROCEEDINGS, THAT FU RNISHING OF DETAILS WERE MENTIONED IN THE RETURN OF INCOME WOULD NOT TANTAMOUNT TO FULL AND C OMPLETE DISCLOSURE FACTS, THAT FOR REOPENING A COMPLETED ASSESSMENT WHAT WAS TO BE SEE N WAS THE ESCAPEMENT OF INCOME, THAT AN ACTION U/S.147 OF THE ACT WAS POSSIBLE DESPITE C OMPLETE DISCLOSURE OF MATERIAL FACTS,THAT THE AO COULD FORM REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT BY EXAMINING THE VERY DOCUMENTS,THAT REASSESSMENT CAN BE INITIATED I F TAXABLE INCOME HAS ESCAPED TAXATION DUE TO OVERSIGHT OR INADVERTENCE OR A MISTAKE COMMITTED BY THE AO DURING THE ORIGINAL ASSESS - MENT PROCEEDINGS,THAT THERE WAS NO NEED FOR GETTING INFORMATION FROM EXTERNAL SOURCES, THAT FOR ISSUING NOTICE U/S.148 INFORMATION COULD BE OBT AINED FROM THE RETURN OF INCOME.HE REFERRED TO THE CASES OF PRAFUL CHUNILAL PATEL(236 ITR 832),STOCK EXCHANGE (227ITR906), RAJESH JAUHARI STOCKBROKERS PRIVATE LIMITED(291 ITR 500),ZUARI REAL ESTATE DEVELOPMENT AND INVESTMENT COMPANY LTD.(373 ITR 661). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.AS THE ASSESSEE HAD CHALLENGED THE VALIDITY OF RE-OPENING,SO,WE WOULD L IKE TO DEAL WITH THE SAID ISSUE.FIRST OF ALL WE WOULD LIKE TO REFER TO THE REASONS RECORDED BY T HE AO FOR REOPENING THE ASSESSMENT AND SAME READ AS UNDER: IN THIS CASE THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR AY 2004-05 ON 31.10.2004 DISCLOSING TOT AL INCOME AT RS.NIL.THE ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT ON 30.11.2006 ASSESSING THE TOTAL INCOME AT RS. NIL. ON PERUSAL OF THE RECORDS IT IS NOTICED THAT THE IM MOVABLE PROPERTY OF THE ASSESSEE TRUST AT YERWADA (PUNE) BEING PLOT NO.L & PLOT NO.4 FORMING PART OF FINAL PLOT NO.88 WERE SOLD TO M/S.DELTA ENTERPRISES FOR RS.1162.00 LAKH VIDE DEVELOPMENT AGREEMENT DATE D 31.01.2004 READ WITH MEMORANDUM OF COMPLETION OF TRANSACTION DATED 11.05.2004. THE ASS ESSEE TRUST STATED THAT AN ENTIRE AMOUNT OF RS.1193.78 LAKHS WAS INVESTED WITH FIXED DEPOSIT IN DEVELOPMENT CREDIT BANK LIMITED (DCBL). EXAMINATION OF THE FIXED DEPOSIT ACCOUNT REVEALS TH AT THE ENTIRE AMOUNT IS NOT INVESTED IN THE SAID BANK AS DETAILED BELOW: A.Y. 2001-02 2002-03 2003-04 2004-05 2005-06 FIXED DEPOSIT WITH DCBL 62,00,000/- 1,18,24,504/- 8,34,25,000/- 23,08,30,47 4/- 22,10,67,627/- INCREASE - 56,24,504/- 7,16,00,496/- 14,74,05,475/- (-)97,62,848/- FURTHER EXAMINATION REVEALS THAT DURING FINANCIAL Y EAR RELEVANT TO AY 2004-05, THE ASSESSEE TRUST HAS INVESTED AN AMOUNT OF RS.780.00 LAKH RECEIVED ON AC COUNT OF SALE OF DEVELOPMENT RIGHTS OF BANDIVALI PROPERTY VIDE AGREEMENT FOR SALE DTD. 26.11.2002 RE AD WITH DEVELOPMENT 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 5 AGREEMENT DTD. 30.12.2003. IF BOTH AMOUNTS OF RS.19 73.78 LAKHS (1193.78 +780 LAKH) ARE CONSIDERED FOR THE PURPOSE OF INVESTMENT IN FIXED DEPOSIT THEN THE AMOUNT OF FD WILL BE INCREASED TO RS.2808.03 LAKH AS COMPARED TO .FD AMOUNT OF RS.834.25 LAKH SH OWN IN 2003-04. HOWEVER, THE FD AMOUNT SHOWN IN THE A.Y.2005-06 WAS RS.2210.68IAKH. THUS, THERE IS A DIFFERENCE OF RS.5,97,35,3731- WHICH IS REMAINED TO BE INVESTED IN FD THEREFORE THE ASSESSE E TRUST IS NOT ENTITLED FOR THE EXEMPTION. FURTHER, AMOUNT INVESTED IN FD WERE FOR THE SHORT P ERIOD OF 90-180 DAYS UNDER SHORT TERM DEPOSIT. AFTER MATURITY, MANY FOR HAS NOT BEEN REINVESTED AN D SOME FOR'S HAS ALSO BEEN WITHDRAWN AS PREMATURE CLOSING. THE DEPOSIT FOR THE PERIOD OF NO T LESS THAN 3 YEARS KEPT WITH SBI OR ANY SUBSIDIARY BANK OR ANY NATIONALIZED BANK AS PER PROVISION OF I . T.ACT IS NOT ALLOWABLE FOR EXEMPTION. THUS, INVESTMENT PATTERN AS PER SECTION 11 (5) OF THE I. T.ACT APPLIED BY THE TRUST IS NOT CORRECT AND EXEMP TION AS CLAIMED BY THE TRUST IS NOT ALLOWABLE. WITHOUT PREJUDICE TO THE ABOVE, UNDER THE PROVISION OF SECTION 11(LA) OF THE I. T.ACT, WHERE CAPITAL A SSET BEING PROPERTY HELD UNDER TRUST WHOLLY FOR CHARITAB LE/RELIGIOUS PURPOSES IS TRANSFERRED AND THE WHOLE OR ANY PART OF THE NET CONSIDERATION IS UTILIZED FO R ACQUIRING ANOTHER CAPITAL ASSET BEING PROPERTY TO BE SO HELD THEN CAPITAL GAIN ARISING FROM THE TRANSFER SHALL BE DEEMED TO HAVE BEEN APPLIED TO CHARITABLE/RELIGIOUS PURPOSES. SINCE THE NET CONSID ERATION HAVE NOT BEEN UTILIZED BY THE ASSESSEE FOR ANOTHER CAPITAL ASSET BEING PROPERTY, THEREFORE, EX EMPTION CLAIMED BY THE ASSESSEE IS NOT CORRECT. IN VIEW OF THE ABOVE, ASSESSEE IS NOT ENTITLED FOR EXEMPTION ON THE SALE CONSIDERATION OF BANDIVILI (MUMBAI)/YERAWADA (PUNE )[FOR 05-06] PROPERTY. HOWE VER IN THE ASSESSMENT ORDER THE ASSESSEE'S SAID CLAIM OF THE EXEMPTION HAS BEEN ALLOWED AND THEREBY UNDUE EXEMPTION WAS ALLOWED TO THE ASSESSEE. THUS INCOME OF THE ASSESSEE HAS ESCAPED THE ASSESSM ENT IN VIEW OF THE CLAUSE (C)(IV) OF EXPLANATION 2 TO PROVISO TO SEC 147 OF THE ACT WHICH READS AS UND ER:- EXPLANATION 2. - FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHER E INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, NA MELY:- (C) WHERE AN ASSESSMENT HAS BEEN MADE, BUT- (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR AN Y OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED.] IN VIEW OF THE FORGOING I HAVE REASON TO BELIEVE TH AT THE INCOME OF THE ASSESSEE HAS ESCAPED THE ASSESSMENT FOR A. Y. 2004-05. THE ASSESSEE HAS FAIL ED TO PROVIDE THE INFORMATION IN THE RETURN SUCH AS PERIOD OF INVESTMENT IN FD AND OTHER DETAILS. THERE FORE THE CAUSE OF ESCAPEMENT OF INCOME WITHIN THE MEANING OF SECTION 147 OF INCOME TAX ACT, 1961, IS FAILURE ON THE PART OF THE ASSESSEE TO MAKE FULL A ND TRUE DISCLOSURE OF MATERIAL FACTS AS FAR AS THE ABO VE ISSUE IS CONCERNED. THE SANCTION U/S.151(1) OF THE INCOME TAX ACT, 1961 , IS SOLICITED FOR ISSUANCE OF NOTICE U/S.148 OF TH E ACT, FROM THE DIT (EXEMPTION) AS THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION HAS BEEN FINALIZED U/S.143(3) OF THE INCOME TAX ACT, AND A PERIOD OF F OUR YEARS HAVE LAPSED FROM THE END, OF THE RELEVANT ASSESSMENT YEAR. ' 5.1. THE POWER TO REOPEN AN ASSESSMENT U/S.147 OF THE AC T IS IN THE NATURE OF AN EXCEPTION TO THE GENERAL PRINCIPLE THAT AN ASSESSMENT ORDER ONCE MADE WOULD BE FINAL.THE EFFECT OF REOPEN- ING IS TO PARTLY VACATE OR SET ASIDE THE ORIGINAL O RDER OF ASSESSENT AND TO SUBSTITUTE IT.NO DOUBT, ESCAPEMENT OF INCOME INCLUDES BOTH NON-ASSESSMENT/U NDERASSESSMENT,BUT IT IS MANDATED BY THE PROVISIONS OF THE ACT THAT REASONS TO BELIEVE M UST NECESSARILY SHOW,INDICATE AND COMMUNI -CATE WHY AND FOR WHAT GROUNDS/CAUSE ANY INCOME HAS ESCAPED ASSESSMENT. REASONS RECORDED MUST BE GERMANE,PERTINENT AND DISCLOSE A PRIMA FACI E BELIEF THAT INCOME HAS ESCAPED ASSESS - MENT.THE RELEVANCE OF REASON HAS TO BE ESTABLISHED. SO,IF THE REASONS DO NOT SHOW ANY NEXUS OR CONNECTION WITH THE ALLEGATION OF UNDERASSESSMEN T THEY FALL IN THE REALM OF SUSPICION, SURMISE AND CONJECTURE.IT IS SAID THAT REASONS TO B ELIEVE MUST HAVE A RATIONAL CONNECTION AND SHOULD BE RELEVANT FOR THE FORMATION OF A BELIEF RE GARDING ESCAPEMENT OF INCOME AND SHOULD 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 6 NOT BE EXTRANEOUS OR IRRELEVANT,OTHERWISE THEY WILL BE CONSIDERED AS INVALID SINCE THEY DO NOT MEET THE STATUTORY PREREQUISITES.THE POLICY OF LAW IS THAT THERE SHOULD BE FINALITY IN ALL LEGAL PROCEEDINGS.THUS, STALE OR IRRELEVANT ISSUES SHOULD NOT AND CANNOT BE A GROUND TO REACTIVATE CLOSED AND CONCLUDED PROCEEDINGS.FORMATION OF RATIO NAL BELIEF THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT IS A CONDITION PRECEDENT FOR VALIDLY INITIATING REASSESSMENT PROCEED - INGS.IN SHORT,THE VALIDITY OF THE REASSESSMENT PROC EED -INGS HAS TO BE TESTED ON THE BASIS OF THE UNDERLYING REASONING STATED AND RECORDED FOR OPENIN G OF THE REASSESSMENT. 5.2. IN GKN DRIVESHAFTS (INDIA)LTD.(259 ITR 19),THE HON BLE SUPREME COURT HAS LAID DOWN THAT WHEN A NOTICE U/S.148 OF THE ACT,IS ISSUED, TH E PROPER COURSE OF ACTION FOR THE NOTICEE IS TO FILE A RETURN AND IF HE SO DESIRES,TO SEEK REASONS FOR ISSUING NOTICES.THE AO IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME.ON RECEIPT OF THE REASONS,THE NOTICEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE AO IS BOUND TO DISPOSE OF THE OBJECTIONS BY PASSING A SPEAKING ORDER. EXPLANATION 1 TO SECTION 147 LAYS DOWN THAT MERE PRODUCTION OF THE BOOKS OF ACCOUNT OR OTHER EVIDENCE FROM WHICH THE A O COULD,WITH DUE DILIGENCE, HAVE DISCOVERED CERTAIN FACTS WOULD NOT AMOUNT TO DISCLO SURE WITHIN THE MEANING OF THE PROVISION. EXPLANATION 2 TO SECTION 147 ENUMERATES THE CASES W HERE IT WOULD BE PRESUMED THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT.AS PER THE HONBLE COURTS ASSESSEES ARE DUTY BOUND TO DISCLOSE PRIMARY FACTS NECESSARY FOR ASSESSMENT. IF THEY DISCLOSE PRIMARY FACTS,IT IS FOR THE AO TO MAKE THE NECESSARY ENQUIRIES AND DRAW PROPER INFERENCES AS TO WHETHER THE INCOME RETURNED IS CORRECT OR NOT.THE TERM FAILURE ON TH E PART OF THE ASSESSEE IS NOT RESTRICTED TO THE INCOME-TAX RETURN AND THE COLUMNS OF THE RETURN OR THE TAX AUDIT REPORT.THE EXPRESSION FAILURE TO FULLY AND TRULY DISCLOSE MATERIAL FACTS ALSO RELATES TO THE STAGE OF THE ASSESSMENT PROCEEDINGS AND THERE CAN BE OMISSION AND FAILURE O N THE PART OF THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS.(376 ITR 131). 5.3. IT IS THE DUTY OF THE AO TO MAKE AN ENQUIRY AND IF HE DID NOT MAKE AN ENQUIRY,IT IS A CASE OF OVERSIGHT AND IT COULD NOT BE SAID THAT THE INCO ME CHARGEABLE TO TAX HAD ESCAPED ASSESS- MENT BY REASON OF THE OMISSION OR FAILURE ON THE PA RT OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS.HONBLE ALLAHABAD HIGH COURT,IN THE CASE OF CHOKANI BROTHERS (367 ITR 230)HAS HELD AS UNDER: AS PER THE PROVISIONS OF THE ACT AN AO IS ENTITLED TO RE-ASSESS AN INCOME ON THE GROUND THAT OWING TO SOME MISTAKE IN THE FIRST ASSESSMENT INCOM E HAS ESCAPED ASSESSMENT.BUT INCOME CANNOT BE HELD TO HAVE ESCAPED ASSESSMENT MERELY ON THE IPSE DIXIT OF THE AO.IT IS FOR HIM TO ESTABLISH TO HIS OWN SATISFACTION ON THE ASSESSMENT AND SUBSEQUENTLY BEFORE ANY APPELLATE TRIBUNAL THAT INCOME HAS ESCAPED ASSESSMENT; IT IS NOT FOR THE ASSESSEE TO PROVE THAT THE ORIGINAL ASSESSMENT WAS RIGHT AND THAT NO INCOME HA S ESCAPED ASSESSMENT. 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 7 EVEN IN CASES WHERE THE AO HAS MADE A MISTAKE OR HA S MADE AN ERROR IN ASSESSING THE INCOME OF AN ASSESSEE,RECOURSE TO SECTION 147 OF THE ACT I S NOT AVAILABLE AND THE APPROPRIATE COURSE WOULD BE FOR THE COMMISSIONER TO PASS AN ORDER U/S. 263 OF THE ACT, IF HE FINDS THAT THE ASSESSMENT ORDER IS ERRONEOUS INASMUCH AS ITS IS PR EJUDICIAL TO THE INTEREST OF THE DEPARTMENT. (383 ITR 197) 5.4. AS PER SETTLED PRINCIPLES OF TAXATION-LAW,WHEN A NO TICE FOR REASSESSMENT IS CHALLENGED,THE BURDEN IS ON THE REVENUE TO ESTABLISH THAT THE JURI SDICTIONAL REQUIREMENT STANDS SATISFIED.SO FAR AS REASON TO BELIEVE ON THE PART OF THE AO IS C ONCERNED,AT THE STAGE OF ISSUING THE NOTICE ONLY A PRIMA FACIE AND NOT A CONCLUSIVE CASE OF INC OME ESCAPING ASSESSMENT SHOULD BE ESTABLISHED TO TURN DOWN A CHALLENGE TO THE REOPENI NG NOTICE. 5.5. NOW,WE WOULD LIKE TO REFER TO SOME OF THE CASES THA T DEAL WITH REOPENING.FIRST,WE ARE REFERRING TO THE CASE OF NITISH SURENDRABHAI(387 IT R 99) OF HONBLE GUJARAT HIGH COURT.IN THAT MATTER THE HONBLE COURT HAS HELD AS FOLLOW: ..IN THE NOTICE FOR REASSESSMENT THE REASONS STAR TED WITH NARRATION ON VERIFICATION OF THE CASE RECORD . (EMPHASIS BY US) . . THUS,THE CONCLUSIONS OF THE ASSESSING OFFICER WERE BASED ON VERIFICATION OF THE CASE RECORD.IN OTHER WORDS, THE RE WAS NO MATERIAL OUTSIDE THE ASSESSMENT PROCEEDINGS WHICH ENABLED THE ASSESSING OFFICER TO CONCLUDE THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THIS ELEMENT WOULD BE CRUCI AL SINCE NOTICE FOR REOPENING HAD BEEN ISSUED BEYOND A PERIOD OF FOUR YEARS FROM THE END O F THE ASSESSMENT YEAR.QUITE APART FROM THE ASSESSEE'S PLACING FULL MATERIAL AT THE DISPOSAL OF THE ASSESSING OFFICER,THE CLAIM WAS ALSO EXAMINED BY THE ASSESSING OFFICER DURING THE ASSESS MENT PROCEEDINGS.HAVING ACCEPTED THE CLAIM IN LAW,BUT HAVING MADE PARTIAL DISALLOWANCE C ONSIDERING THE FACTS, IT WAS THEREAFTER NOT OPEN TO THE ASSESSING OFFICER TO ISSUE NOTICE FOR R EOPENING, THAT TOO,WITHOUT ANY ADDITIONAL MATERIAL WHICH WOULD SUGGEST THAT THE ASSESSEE HAD MADE A FALSE DECLARATION OR PROVIDED INACCURATE PARTICULARS. WE WOULD ALSO LIKE TO REFER TO THE CASE OF UNITED S HIPPERS (371 ITR 441).IN THAT MATTER THE AO HAD PASSED AN ASSESSMENT ORDER U/S.143(3).IN THE COURSE OF THE ASSESSMENT PROCEEDINGS,HE CALLED UPON THE ASSESSEE TO SUBMIT A BRIEF NOTE ON THE NATURE OF ITS BUSINESS.THE ASSESSEE HAD CATEGORICALLY DISCLOSED THE NATURE OF ITS BUSINESS ACTIVITY AS BEING ENGAGED IN SHIPPING OPERATIONS.THE ASSESSEE IN VARIOUS DOCUMENTS,AS SOU GHT BY THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS,HAD DISCLOSED THE NATURE OF ITS ACTIVITY TO BE OPERATION OF SHIPS. ON THE BASIS OF THIS MATERIAL IT HAD MADE A CLAIM FOR DEDUCTION U/S.33AC JUSTIFYING ITS CLAIM BEING ENGAGED IN SHIPPING OPERATIONS. CLAIM WAS SUP PORTED BY THE MATERIAL MADE AVAILABLE TO THE AO.HE RECORDED AN OPINION THAT THE ASSESSEE WAS ENGAGED IN SHIPPING OPERATIONS SO AS TO MAKE IT ELIGIBLE FOR DEDUCTION U/S. 33AC OF THE ACT .LATER ON,HE ISSUED A NOTICE TO THE ASSESSEE U/S.148 OF THE ACT AS HE WAS OF THE OPINION THAT TA XABLE INCOME HAD ESCAPED ASSESSMENT.A 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 8 WRIT PETITION,CHALLENGING THE REOPENING WAS FILED B Y THE ASSESSEE BEFORE THE HONBLE HIGH COURT. QUASHING THE RE-OPENING HONBLE BOMBAY HIGH COURT HELD AS UNDER: WHEN AN ASSESSMENT IS SOUGHT TO BE REOPENED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, THE PROVISO TO SECTIO N 147 OF THE INCOME-TAX ACT, 1961, STIPULATES A REQUIREMENT THAT THERE MUST A FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSE SSMENT OF INCOME FOR THAT YEAR. THIS IS THE PRIMARY AND THE JURISDICTIONAL REQUIREMENT BEING TH E MANDATE OF THE PROVISO TO THE PROVISIONS OF SECTION 147 . .THE REOPENING OF THE ASSESSME NT WAS BAD IN LAW AS THERE WAS NO REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THIS WAS SO AS THE ENTIRE EXERCISE FOR REOPENING OF THE ASSESSMENT EMA NATED FROM A CHANGE OF OPINION. THE NOTICE WAS ISSUED U/S. 148 BY THE AO AFTER THE EXPI RY OF A PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE REASONS AS RECORD ED BY THE AO, TO REOPEN THE ASSESSMENT, EVEN WHEN THEY WERE READ IN ITS ENTIRETY DID NOT IN DICATE THAT THE ASSESSEE HAD NOT DISCLOSED FULLY AND TRULY ALL THE MATERIAL FACTS. THEREFORE, EX FACIE ON THIS GROUND ALONE THE NOTICE COULD BE SAID TO LACKING IN ITS FOUNDATION FOR ANY FURTHE R ENFORCEMENTTHE REOPENING NOTICE WAS ISSUED BY THE AO ON THE BASIS OF THE LETTER OF THE COMMISSIONER (APPEALS), WHEREIN HE HAD EXTRACTED THE VERY INFORMATION AS FURNISHED BY THE ASSESSEE IN REGARD TO THE NATURE OF ITS BUSINESS IN SHIPPING. THIS DISCLOSURE WAS IN FACT I DENTICAL TO THE DISCLOSURE AS MADE BY THE ASSESSEE IN RESPONSE TO THE NOTICE OF THE AO U/S. 1 42(1) WHICH RAISED VARIOUS QUERIES IN THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2000-01. THEREFORE, THE AOS ATTEMPT TO REOPEN THE ASSESSEES ASSESSMENT ON THE ASSESSEE'S OWN DISCLOSURE COULD IN NO MANNER BE TERMED AN APPROPRIATE EXERCISE OF HIS JUR ISDICTION AND AUTHORITY U/S. 147 SO TO REOPEN THE ASSESSMENT BEYOND THE PERIOD OF FOUR YEA RS AS THIS COULD IN NO MANNER BE SAID TO BE ANY FAILURE ON THE PART OF THE ASSESSEE TO DISCL OSE FULLY AND TRULY ALL THE FACTS NECESSARY FOR ASSESSMENT. HENCE, THE NOTICE WAS TO BE QUASHED AND SET ASIDE. 5.6. WHEN A NOTICE FOR REASSESSMENT IS CHALLENGED, THE B URDEN IS ON THE REVENUE TO ESTABLISH THAT THE JURISDICTIONAL REQUIREMENT STANDS SATISFIE D.WE HAVE,IN EARLIER PARAGRAPHS,NOTED DOWN THE PRINCIPLES GOVERNING RE-OPENING OF THE ASSESSME NTS.EVEN IF ONE OF THE NUMEROUS JURISDICTIONAL REQUIREMENTS NECESSARY FOR THE ISSUE OF REOPENING NOTICE IS NOT SATISFIED, THE REOPENING OF AN ASSESSMENT FAILS.THE SUSTAINABILITY OF THE REOPENING NOTICE WOULD BE TESTED ONLY ON THE BASIS OF THE REASONS RECORDED AT THE TI ME OF ISSUING THE NOTICE. 6. AFTER CONSIDERING THE PRINCIPLES GOVERNING THE REOP ENING,NOW,WE WOULD LIKE TO CONSIDER THE FACTS OF THE CASE UNDER APPEAL.WE FIND THAT THE AO HAS NOT REFERRED TO ANY MATERIAL, OTHER THAN WHAT WAS EXAMINED IN THE INITIAL ROUND OF ASSESSMEN T PROCEEDINGS,FOR FORMING HIS BELIEF THAT THE ASSESSEES INCOME HAD ESCAPED ASSESSMENT.THE AO S BELIEF WAS BASED SOLELY ON THE BASIS OF MATERIAL ALREADY EXAMINED BY HIM DURING THE FIRS T ROUND OF ASSESSMENT PROCEEDINGS.THE NOTICE ISSUED U/S.148 STARTS WITH FOLLOWING SENTENC E: ON PERUSAL OF THE RECORDS IT IS NOTICED THAT IT CLEARLY SHOWS THAT THE NOTICE WAS NOT ISSUED ON THE BASIS OF NEW TANGIBLE MATERIAL,BUT ON THE REAPPRAISAL OF THE SAME MATERIAL. 6.1. WE FIND THAT THE ASSESSEE HAD FILED DETAILED OBJECT IONS AGAINST RE-OPENING.BUT,THE AO HAD NOT PASSED A SPEAKING OR REASONED ORDER AS TO WHY T HE OBJECTIONS WERE NOT SUSTAINABLE.MERELY 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 9 STATING THAT OBJECTIONS ARE DEVOID OF MERIT IS NOT SUFFICIENT.OBSERVATIONS IN THAT REGARD ARE TO BE SUPPORTED WITH SOLID REASONS. 6.2. WE FIND THAT THE AO HAS NOT ESTABLISHED THE FAILUR E OF THE ASSESSEE TO DISCLOSE TRULY AND FULLY THE MATERIAL FACTS NECESSARY FOR MAKING ORIGI NAL ASSESSMENT.THE FAILURE OF THE ASSESSEE IS NOT ONLY TO BE ALLEGED BUT HAS TO BE DEMONSTRATED B Y POSITIVE EVIDENCES.THE AO HAS USED THE TERMINOLOGY USED IN THE SECTION,BUT HAS NOT EXPLAIN ED AS TO HOW THE ASSESSEE HAD FAILED I.E. WHICH MATERIAL FACTS WERE NOT DISCLOSED.ALL THE FAC TS ABOUT SALE OF DEVELOPMENT RIGHTS AND INVESTMENTS WERE PRODUCED AND DELIBERATED UPON DURI NG THE ORIGINAL ASSESSMENT PROCEEDINGS. 6.3. BESIDES,WE FIND THAT THE ISSUE OF SALE OF DEVELOPME NT RIGHTS AND INVESTMENT OF SALE PROCEEDS IN FORM OF FDR.S WAS DEALT WITH BY THE AO IN GREAT DETAILS IN THE ORIGINAL ASSESSMENT.A PERUSAL OF PAGE NO.S 14 AND 84 OF THE PB. CLEARLY REVEAL THAT THE ASSESSEE HAD FILED VARIOUS DETAILS OF THE TRANSACTION INCLUDING THE DETAILS OF FDR.S ON 02.08.2006 AND 20.09.2006 BEFORE THE AO.AS PER PAGE 3 OF THE PAPER BOOK THE NOTE IN THE COMPUTATION OF INCOME FOR THE YEAR UNDER APPEAL CONTAINED THE DETA ILS ABOUT THE TRANSACTION.THE NOTE READ AS UNDER: WE HAVE SOLD DEVELOPMENT RIGHTS OF IMMOVABLE PROPE RTY BEING BANDIVALI PROPERTY, MUMBAI FOR AN AMOUNT OF RS.7,80,00,000/- VIDE AGREEMENT FO R SALE DATED 26TH NOVEMBER,2002 READ WITH DEVELOPMENT AGREEMENT DATED 30TH DECEMBER,2003 . THE ABOVE PROPERTY WAS PURCHASED ON 27 TH JANUARY, 1976. WE HAVE SPENT FURTHER AMOUNTS FROM T IME TO TIME AND THE PROPORTIONATE COST OF ABOVE PROPERTY IN OUR BOOKS ON 30 TH DECEMBER, 2003 WAS RS. 25, 99, 435/-. WE HAVE INVESTED THE ABOVE SALE CONSIDERATION OF RS.7,80,00 ,000 IN THE BANK FIXED DEPOSITS WITH DEVELOPMENT CREDIT BANK LTD AS PER STATEMENT ATTACH ED,..SINCE THE ENTIRE SALE CONSIDERATION IS INVESTED IN OTHER CAPITAL ASSET BE ING THE BANK FIXED DEPOSIT, THE CAPITAL GAIN IS EXEMPT. PG. 5 OF THE PB CONTAINS THE DETAILS OF DATES OF RE CEIPT OF CONSIDERATION,AMOUNTS DATES OF DEPOSITS AND AMOUNTS INVESTED BY THE ASSESSEE DURIN G THE YEAR UNDER CONSIDERATION.VIDE ITS LETTER,DATED 02/08/2006, THE ASSESSEE HAD FILED DET AILED NOTE ON SALE OF THE PROPERTY (PG.15-16 OF THE PB),ORDER OF THE CHARITY COMMISSIONER SANCTI ONING THE SALE OF PROPERTY,DATED 17/ 03/ 2003(PG.17-38)AND A COPY OF SALE AGREEMENT WITH VDL (PG.39-83 OF THE PB).LATER ON,VIDE ITS LETTER,DATED 20/09/2006,THE ASSESSEE HAD FILED DETA ILS ABOUT NAMES AND ADDRESSES OF THE PARTNERS OF VDL,COPIES OF FIXED DEPOSITS WITH DEVEL OPMENT CREDIT BANK (PG.87-121OF THE PB),A COPY OF BANK BOOK GIVING DETAILED NARRATION O F ALL THE RECEIPTS AND PAYMENTS (PG.128- 161 OF THE PB).IT WAS ALSO EMPHASISED THAT ALL THE DEPOSITS WERE FOR THE TERM EXCEEDING 6 MONTHS INCLUDING RENEWALS.IT IS ALSO FOUND THAT IT HAD DISCLOSED RECEIPT OF COMPENSATION OF RS.31.78 LAKHS FOR ASSIGNING THE DEVELOPMENT RIGHTS IN RESPECT OF AN ADJACENT PLOT ON WHICH THERE WAS A RESERVATION.THE ASSESSEE HAD RENEWED CE RTAIN EARLIER FIXED DEPOSIT AND SAME HAD 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 10 NO CONNECTION WITH THE COMPENSATION RECEIVED ON SAL E OF PLOT OF LAND.AFTER CONSIDERING THE ABOVE SUBMISSIONS OF THE ASSESSEE AND AFTER DELIBE RATING UPON THE DOCUMENTS FURNISHED BY IT,THE AO HAD PASSED SCRUTINY ASSESSMENT.HE HAD FOR MED AN INFORMED OPINION THAT IT WAS ENTITLED TO BENEFIT OF THE PROVISIONS OF SECTION 11 OF THE ACT AND THAT IT HAD MADE INVESTMENT ON SALE OF ONE KIND OF ASSETS IN OTHER ASSETS WITHI N THE STIPULATED TIME AND IN PRESCRIBED MANNER.LATER ON,HE ISSUED A NOTICE U/S.148 OF THE A CT AND HAS REAPPRAISED THE SAME FACTS AND HAS REACHED ON A DIFFERENT CONCLUSION.IN OUR OPINIO N,IT IS A CLEAR CASE OF CHANGE OF OPINION. NOT ONLY THIS,THERE IS NO FAILURE ON PART OF THE AS SESSEE TO DISCLOSE FULLY AND TRULY THE MATERIAL FACTS FOR THE YEAR UNDER APPEAL,AS IT HAD FILED ALL THE DETAILS OF THE IMPUGNED TRANSACTION. CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE,WE ARE OF THE OPINION THAT THERE WAS NO FAILURE ON PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY THE MATERIAL FACTS,SO,THE REASSESSMENT PROCEEDINGS,INITIATED BY THE AO IN ITS CASE UNDER APPEAL,ARE NOT VALID.REVERSING THE ORDER OF THE FAA,WE DECIDE THE FIRST EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. 7. AS WE HAVE HELD THAT THE REASSESSMENT PROCEEDINGS W ERE INVALID,SO,WE ARE NOT DECIDING THE OTHER ISSUES RAISED BY THE ASSESSEE. ITA785/MUM/2015,AY.2005-06: 8. FACTS FOR THE CASE UNDER APPEAL ARE INDETICAL-THE O NLY DIFFERENCE IS THE LOCATION OF PROPERTY SOLD AND THE SALE PRICE RECEIVED.DURING THE YEAR A PLOT OF LAND WAS SOLD IN PUNE FOR RS. 11.93 CRORES.ALL OTHER FACTORS ARE IDENTICAL TO THE FACTS OF EARLIER YEAR.SO,FOLLOWING THAT ORDER,WE DECIDE THE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE AND HOLD THAT THE ORDER PASSED BY THE AO U/S.147 WAS INVALID. AS A RESULT,APPEAL FILED BY THE ASSESSEE FOR BOTH T HE AY.S STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH SEPTEMBER, 2017. 06 , 2017 SD/- S D/- ( / RAM LAL NEGI ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 06.09 .2017. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 784-85/MUM/15- MUNIWAR ABAD CHARITABLE TRUST 11 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR G BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.