ITO, Jaipur V. M/S BIHARI LAL HOLA RAM, Jaipur

ITA 98/JPR/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7785 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-07-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 30-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Loose papers; Opportunity of being heard; Tangible material; Difference of opinion; Assessment record; Change of opinion; Reassessment proceedings
• Section: 143(3); 133A; 147; 148; 69

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) I.T.A. NO. 98/JP/2012 ASSTT. YEAR- 2005-06 PAN NO. AAEFB 3499 A THE I.T.O. M/S BIHARI LAL HOLA RAM, WARD 1(1), JAIPUR. VRS. 75, GOPAL JI KA RASTA, JOHARI BAZAR, JAIPUR. (APPELLANT) (RESPONDENT) DEPARTMENT BY :- SHRI RAJESH OJHA ASSESSEE BY :- SHRI P.C. PARWAL. DATE OF HEARING : 11/09/2014 DATE OF PRONOUNCEMENT : 26/09/2014 O R D E R PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 15/11/2011 OF THE LEARNED C.I.T.(A)-I, JAIPUR FOR TH E A.Y. 2005-06. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LEARNED CIT(A) IS JUSTIFIED IN:- 1. QUASHING THE RE-ASSESSMENT PROCEEDINGS U/S 147/1 48 BY ADMITTING THE ADDITIONAL GROUND OF APPEAL WITHOUT PR OVIDING AN OPPORTUNITY OF BEING HEARD TO THE A.O AND FURTHE R HOLDING THAT THE RE-ASSESSMENT PROCEEDINGS CONSTITU TES CHANGE OF OPINION DESPITE THE FACT THAT THERE IS NO EVIDENCE TO SHOW THAT THE A.O. HAS SPECIFICALLY CONS IDERED ANNEXURE-7, ANNEXURE-8, ANNEXURE-23 WHILE FRAMING TH E ORIGINAL ASSESSMENT ORDER ON 28/12/2007. ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 2 2. DELETING THE ADDITION OF RS. 1,40,64,604/- REPR ESENTING THE UNRECORDED SALES TO M/S KAMLESH & CO. HOLDING THAT G.P. AT THE RATE OF 19% OF RS. 26,72,275/- ON ACCOUNT OF TH ESE SALES IS TREATED AS HAVING BEEN INVESTED IN STOCK WH ICH WAS FOUND AND SURRENDERED DURING THE NEXT YEAR. 3. DELETING THE ADDITION OF RS. 91,84,116/- MADE BY THE A.O. ON ACCOUNT OF THE ENTRIES APPEARING ON APPROVAL MEM O ANNEXURE-23 (PAGES 101 TO 142 IMPOUNDED DURING THE COURSE OF SURVEY U/S 133A, HOLDING THAT THE GROSS P ROFIT ALONE SHOULD BE WORKED OUT FOR THE PURPOSE OF TAXATI ON. 4. GIVING A DIRECTION TO ALLOW SET OFF OF THE INCOME WORKED OUT ON THE BASIS OF GROSS PROFIT OUT OF THE UNRECORDED SALES TO M/S KAMLESH & CO. AND UNRECORDED SALES OF GOODS REF LECTED ON APPROVAL MEMOS SL. NO. 101 TO 142 (ANNEXURE-23) AGAINST THE INCOME ALREADY TAXED IN THE CASE OF M/S BIHARI LAL HOLA RAM IN A.Y. 2006-07 DESPITE THE FOLLOWING F ACTS WHICH ARE APPARENT FROM THE ORDER OF THE CIT(A). A) THE COMBINED UNRECORDED SALES AGGREGATES TO RS. 2,32,48,720/-. GROSS PROFIT OUT OF SUCH UNRECORDED SALES WORKED OUT BY THE LEARNED CIT(A) COMES TO RS. 44,17, 257/-. THUS, EXCLUDING THE GROSS PROFIT SO WORKED OUT, THE N ET UNEXPLAINED INVESTMENT AVAILABLE WITH THE ASSESSEE C OMES RS. 1,88,31,463/- WHEREAS THE UNEXPLAINED STOCK SURRENDERED BY THE ASSESSEE WAS ONLY RS. 1.38 CRORES . B) NO CONSOLIDATED WORKING OF UNRECORDED PURCHASES/SALES TRANSACTIONS OF THE GOODS COVERED I N ALL THE APPROVAL MEMOS AND OTHER ANNEXURES IMPOUNDED FROM T HE VARIOUS PREMISES OF THE GROUP CONCERNS AND THE BIFU RCATION OF THE SAME INTO UNDISCLOSED INVESTMENT AND UNDISCL OSED INCOME THEREON WAS COMPLIED BY EITHER THE ASSESSEE O R THE LEARNED CIT(A) SO AS TO ARRIVE AT THE UNRECORDED FU ND ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 3 AVAILABLE WITH THE ASSESSEE FOR INVESTMENT IN THE UNEXPLAINED STOCK WHICH WAS EVENTUALLY SURRENDERED I N A.Y. 2006-07 AT RS. 1.38 CRORES. 2. THE FIRST GROUND OF APPEAL IS AGAINST QUASHING TH E REASSESSMENT PROCEEDINGS U/S 147/148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT) WITHOUT PROVIDING AN OPPORTUNIT Y OF BEING HEARD AND ON CHANGE OF OPINION. THE ASSESSEE HAD SHOWN INCOME FROM BUSINESS AND OTHER SOURCE. A SURVEY U/S 133A OF THE ACT WAS C ARRIED OUT ON 18/5/2005. THE CASE FOR A.Y. 2006-07 WAS ASSESSED U/S 143(3) OF THE ACT ON 28/12/2008. IT HAS BEEN OBSERVED THAT SOME A NNEXURES WERE IMPOUNDED IN CONSEQUENCES TO THE SURVEY CONDUCTED A ND THE SAME WERE NOT VERIFIED FROM AUDITED ACCOUNTS OF THE ASSESSEE FIRM. ANNEXURES- 22,23 AND 24 SHOWED GOODS SENT FOR APPROVAL, WHICH WER E NOT VERIFIABLE FROM THE BOOKS OF ACCOUNT. ANNEXURE-7 PAGE NOS. 49 AND 50 WERE ORIGINAL SALE BILL DATED 07/12/2004 AND 20/11/2004, ANNEXURE-8 PAGE NO. 36 REPRESENTS ADVANCE TO VARIOUS PERSONS AT RS. 3,83,300/- FOR THE PERIOD 09/9/2004 TO 19/3/2005, ANNEXURE-8 PAGE NO. 30 AND 31 IS RUNNING ACCOUNT OF M/S KAMLESH & CO. SHOWED RECEIPT OF RS. 1,40,64,604/-. A-53 FOUND FROM THE BUSINESS PREMISE S OF KHUSHBOO JEWELLERS IS A PETTY CASH BOOK FOR F.Y. 2004-05 AND 2005-06 REPRESENT ENTRIES FOR RS. 1,48,039/- FOR A.Y. 2005-06. ON THI S GROUND, THE LEARNED ASSESSING OFFICER REOPENED THE CASE U/S 147 READ WIT H SECTION 148 OF ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 4 THE ACT. THE ASSESSEE RAISED OBJECTION AGAINST THE NOTICE U/S 148 OF THE ACT, WHICH WERE CONSIDERED BY THE ASSESSING OFFICER A ND DISPOSED OFF. IT WAS SUBMITTED BY THE ASSESSEE THAT ANNEXURE-53 BELON GED TO SMT. CHANCHAL LAKHI, WHICH WAS NOT CONVINCING TO THE ASSE SSING OFFICER AND HE CONCLUDED THAT NOTICE U/S 148 OF THE ACT IS A VA LID NOTICE. THE LEARNED ASSESSING OFFICER GAVE REASONABLE OPPORTUNITY OF BE ING HEARD DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON IMPOUNDED DOCUM ENTS, WHICH WAS REPLIED BY THE ASSESSEE VIDE LETTER DATED 16/12/201 0. AFTER CONSIDERING THE ASSESSEES REPLY, IT HAS BEEN HELD BY THE LEARN ED ASSESSING OFFICER THAT THESE TRANSACTIONS ON THESE PAPERS REPRESENT A PPROVAL MEMOS OF GOODS SENT TO SHOW ROOM FOR EXHIBITION OR MARKETING TO OTHER PLACES. THESE APPROVAL MEMOS WERE PREPARED FOR CARRYING GOODS TO OTHER PLACES. THE GOODS SO GIVEN ON APPROVAL MEMOS ARE RET URNED BACK AND IF SOME GOODS WERE SOLD, SALE INVOICES WERE ISSUED SEPAR ATELY, WHICH ARE FORMING PART OF REGULAR BOOKS OF ACCOUNT OF THE FIR M, WHICH WAS NOT FOUND TENABLE TO THE ASSESSING OFFICER ON THE GROUN D THAT THESE ARE BOND APPROVAL MEMOS REPRESENTING GOODS REMOVED FROM BUSINESS PREMISES. THE ASSESSEE HAD NOT SUBMITTED ANY DOCUMEN TARY EVIDENCE TO PROVE THAT GOODS SO GIVEN ON APPROVAL MEMOS WERE ENT ERED IN REGULAR BOOKS OF ACCOUNT OR WHEN IT WAS RECEIVED BACK AND WHE N IT WAS SOLD. THE APPELLANT DID NOT MENTION ANYTHING REGARDING DAT E OF EXHIBITION, ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 5 PLACE OF EXHIBITION, MANNER OF EXHIBITION AND EXPEN SE INCURRED IN THIS REGARD TO PROVE THAT THE GOODS WERE REMOVED FROM SHO W ROOM FOR DISPLAYING IN THE EXHIBITION. SO THE LEARNED ASSESS ING OFFICER FOUND THIS SUBMISSION AFTER THOUGHT. HE TREATED THIS STOCK LYI NG OUTSIDE THE BUSINESS PREMISES AS UNDISCLOSED STOCK AND ADDITION OF RS. 91,84,116/- WAS MADE ON ACCOUNT OF ANNEXURE-23 AND 24. AS PER AN NEXURE-53, ADDITION OF RS. 1,48,039/- WAS MADE U/S 69 OF THE AC T. FURTHER AS PER ANNEXURE-8, PAGE NOS. 30 AND 31, THERE WAS AN ACCOUN T FROM KAMLESH & CO. ON WHICH TOTAL SALE TRANSACTIONS WERE SHOWN A T RS. 1,40,64,604/- HAS NOT BEEN RECORDED IN THE REGULAR BOOKS OF ACCOU NT, THUS HE MADE UNEXPLAINED INCOME U/S 69 OF THE ACT IN THE INCOME OF THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED ASSE SSING OFFICER, THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A), W HO HAD ALLOWED THE APPEAL BY OBSERVING AS UNDER:- 4.3 I HAVE CAREFULLY PERUSED THE ORDER OF THE A.O . AND THE SUBMISSIONS OF THE AR. REGARDING THE ACCOUNT MAINTA INED BY THE ASSESSEE WITH M/S KAMLESH & CO. A CATEGORICAL FINDING HAS BEEN GIVEN BY THE LEARNED CIT(A) VIDE O RDER DATED 29/03/2010, NO. 497/BKN/2008-09 IN THE CASE O F THE ASSESSEE FOR A.Y. 2006-07 WHEREIN HE HAS HELD ON PAG E 15 OF HIS ORDER THAT I FIND THAT THIS PAPER IS A LEDG ER ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M/S KAMLESH & CO.. THE OPENING BALANCE IN THIS ACCOUNT IS RS. 17,29,320/-. RATHER ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 6 THE CONTENTION OF THE AR THAT THIS AMOUNT WAS AVAILA BLE WITH THE ASSESSEE AS A SOURCE FOR MAKING INVESTMENT IN T HE STOCK, WHICH IS FOUND IN EXCESS, APPEARS TO BE CORRE CT. WITH THESE REMARKS THE LEARNED CIT(A) HAS DELETED THE AD DITION. THE A.O. HAS NOWHERE REBUTTED THIS FINDING OF THE LE ARNED CIT(A). ON PERUSAL OF THE ACCOUNT, IT APPEARS TO BE RELATED TO THE UNACCOUNTED SALES BY THE ASSESSEE TO M/S KAM LESH & CO.. AS PER PAGE 30 OF ANNEXURE A-8, IT IS SEEN THA T THE ASSESSEE RECEIVED RS. 1,40,64,604/- DURING THE YEAR . IF THE G.P. RATE IS TAKEN @ 19% IN THIS SALE THEN IT RESULT S INTO GROSS PROFIT OF RS. 26,72,275/-. THE PLEA OF THE AS SESSEE IS THAT REASONABLE G.P. RATE ON THIS UNACCOUNTED SALES BE TAKEN AND THE AMOUNT BE TREATED TO HAVE BEEN INVEST ED IN EXCESS STOCK WHICH WAS SURRENDERED IN THE NEXT A.Y.. THIS SUBMISSION OF THE APPELLANT HAS BEEN ACCEPTED BY TH E LEARNED CIT(A) IN HIS CASE AS DISCUSSED ABOVE AND H AS BEEN FURTHER UPHELD BY THE DECISION OF HONBLE ITAT ORDER NO. 827/JP/2010 DATED 16/09/2011. THEREFORE, IT IS HELD THAT NO ADDITION IS TO BE MAD E ON ACCOUNT OF THESE TRANSACTIONS AS PER PAGES 30 AND 3 1 OF ANNEXURE A-8 DURING THIS YEAR. THIS A/C IS TO BE TRE ATED AS SALES MADE BY THE APPELLANT TO M/S KAMLESH & CO.. T HE G.P. AT THE RATE OF 19% OF RS. 26,72,275/- ON ACCOUNT OF THESE SALES IS TREATED AS HAVING BEEN INVESTED IN STOCK WH ICH WAS FOUND AND SURRENDERED DURING THE NEXT YEAR. THIS FIN DING IS FURTHER REITERATED BY THE FACT THAT NO EVIDENCE WAS FOUND DURING THE SURVEY OR SUBSEQUENTLY DURING THE ASSESS MENT PROCEEDINGS, THAT THESE SALE PROCEEDS HAD BEEN DIVE RTED FOR ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 7 PERSONAL CONSUMPTION OR ANY OTHER CAPITAL INVESTMEN T BY THE PARTNERS OF THE ASSESSEE FIRM. THEREFORE, THE IM PUGNED ADDITION OF RS. 1,40,64,604/- MADE BY THE A.O. IS D ELETED. 5.3 I HAVE PERUSED THE ORDER OF THE A.O., SUBMISSIO NS OF THE A.R. AND THE ASSESSMENT RECORD. IN THE PAPER BOOK F ROM PAGE 47 TO 87 THE AR HAS FILED DETAILS OF GOODS SEN T ON APPROVAL OR TAKEN FOR APPROVAL AND BROUGHT BACK BY THE PARTNER OR STAFF. THE DATES OF SENDING THESE ITEMS FOR APPROVAL ARE FROM 07/5/2004 TO 17/2/2005 WHILE THE D ATE OF SURVEY IS 18/8/2005. THE ASSESSEE WAS NOT MAINTAINING ANY STOCK REGISTER SO IT IS NOT POSSIBLE TO VERIFY THE AMOUNT OF GOODS BROUGHT BACK BY THE PARTNER AS CLAIMED OF RS. 45,85,804/- OR SOLD TO OTHER PARTIES OF RS. 45,98,3 11/-. HOWEVER, THERE DOES APPEAR TO BE SOME RATIONAL IN TH E SUBMISSION OF THE AR THAT THE GOODS COULD NOT HAVE BEEN LYING WITH THIRD PARTIES ON APPROVAL FOR 6 MONTHS. S INCE THE LAST DATE ON THE APPROVAL MEMO IS 17/2/2005 AND THE DATE OF SURVEY WAS 18/8/2005. IF THE ENTIRE AMOUNT OF STO CK IS TAKEN AS HAVING BEEN RETURNED THEN IT WOULD HAVE BE EN PART OF EXCESS STOCK FOUND AT THE TIME OF SURVEY ON 18/5 /2005. THE EXCESS STOCK SURRENDERED BY THE ASSESSEE ON 18/8 /2005 WAS RS. 1,38 CRORES WHICH IS MORE THAN THE AMOUNT RECORDED IN THE SLIPS. IF IT IS TAKEN THAT ENTIRE G OODS WERE SOLD THEN G.P. WOULD HAVE TO BE CALCULATED ON THESE SALES AND A SET OFF BE GIVEN AGAINST INVESTMENT IN EXCESS STOCK FOUND AT THE TIME OF SURVEY, BECAUSE NO EVIDENCE WAS FOUND AT THE TIME OF SURVEY, BECAUSE NO EVIDENCE WAS FOUND AT THE ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 8 TIME OF SURVEY OR DURING THE SUBSEQUENT ASSESSMENT PROCEEDINGS THAT THE SALE PROCEEDS WERE BEING DIVERT ED BY THE PARTNERS OF THE ASSESSEE FIRM FOR PERSONAL CONS UMPTION OR ANY OTHER INVESTMENTS. PURSUANT TO THE FINDING O F THE HONBLE ITAT IN THE ASSESSEES CASE FOR A.Y. 2006-07 IF THE G.P. DURING THIS YEAR IS CALCULATED @ 19% ON TOTAL S ALES OF RS. 91,84,116/- THEN UNRECORDED SALE PROCEEDS COME TO RS. 17,44,982/-. THE SET OFF IS DIRECTED TO BE GIVEN AG AINST EXCESS STOCK SURRENDERED BY THE APPELLANT IN THE NE XT A.Y. IN VIEW OF THE ABOVE DISCUSSION, THE IMPUGNED ADDITI ON OF RS. 91,84,116/- IS DELETED. 6.3 I HAVE CAREFULLY PERUSED THE ORDER OF THE A.O. AND THE SUBMISSIONS OF THE AR. THE ANNEXURE-A-53 IS A CASH B OOKS AND PAPER BOOK PAGES 50 TO 54 AND 59 TO 63 PERTAIN TO THIS ASSESSMENT YEAR. THE CASH BOOK SHOWS RECEIPTS AND PAYMENTS MADE DURING THE YEAR FROM 07/1/2005 TO 30/3/2005. THE BALANCE AS ON 30/3/2005 TRANSFERRED TO NEXT FINANCIAL YEAR ON 01/4/2005 HAS BEEN SHOWN AT RS. 4, 039/-. HOWEVER, DURING THE ASSESSMENT PROCEEDINGS AND AT TH E TIME OF REOPENING OF THE ASSESSMENT, IT WAS NOTED BY THE A.O. THAT THIS CASE BOOK WAS FOUND AT THE PREMISES O F M/S KHUSHBOO JEWELLERS, NO EFFORT HAS BEEN MADE TO VERIF Y WHETHER THE TRANSACTIONS RECORDED IN THIS PETTY CASH BOOK WERE REFLECTED IN THE REGULAR BOOKS OF ACCOUNT OF M/ S KHUSHBOO JEWELLERS BY THE A.O. AT THE TIME OF FINALI ZING THE ORDER U/S 143(3). ON PERUSAL OF THE SUBMISSIONS FIL ED IN THE RELATED CASE OF M/S LAKHI GEMS FOR A.Y. 2005-06, IT IS SEEN ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 9 THAT SMT. CHANCHAL LAKHI DUR9NG THE ASSESSMENT PROCEEDINGS FOR A.Y. 2005-06 HAS ADMITTED THAT THIS PETTY CASH BOOKS PERTAINS TO HER CONCERN AND IT WAS MAINTA INED BY THE STAFF IN WHICH TRANSACTIONS WERE RECORDED FOR VARIOUS RECEIPTS AND PAYMENTS. CONSIDERING THAT THIS CASH B OOK PERTAINED TO M/S KHUSHBOO JEWELLERS AND THE ENTRIES HAVE BEEN VERIFIED FROM ITS REGULAR BOOKS OF ACCOUNT FOR A.Y. 2005-06 DURING ASSESSMENT PROCEEDINGS THERE IS NO JUSTIFICATION IN MAKING ANY ADDITION TO THE INCOME OF THE APPELLANT ON THE BASIS OF THIS ANNEXURE. THEREFORE, THE IMPUGNED ADDITION OF RS. 1,48,039/- IS DELETED. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. 5. THE LEARNED D.R. SUPPORTED THE ORDER OF THE ASSES SING OFFICER AND ARGUED THAT WHATEVER EVIDENCE FOUND DURING THE COURS E OF SURVEY U/S 133A OF THE ACT, WHICH WAS LATER ON IMPOUNDED, HAD NO T BEEN CONSIDERED BY THE LEARNED ASSESSING OFFICER IN ORI GINAL ORDER DATED 28/12/2007. THEREFORE, THE SAME MAY BE CONFIRMED. 6. AT THE OUTSET, THE LEARNED AR FOR THE ASSESSEE S UBMITTED THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 28/12/2007 I.E. AFTER THE DATE OF SURVEY. THE ORIGINAL ASSESSME NT PROCEEDINGS, THE ASSESSEE VIDE LETTER DATED 07/12/2007 EXPLAINED EAC H ANNEXURE IMPOUNDED IN SURVEY FROM THE PREMISES OF THE ASSESS EE AND M/S KHUSHBOO JEWELLERS. THEREAFTER, THE ASSESSING OFFICER VIDE LET TER DATED 20/12/2007 ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 10 SPECIFICALLY ASKED EXPLANATION IN RESPECT OF CERTAI N SPECIFIC PAPERS IN THE IMPOUNDED ANNEXURES. THIS WAS REPLIED BY THE ASSESSEE VIDE LETTER DATED 23/12/2007. THE LEARNED ASSESSING OFFICER FURTHER E XAMINED THE BOOKS OF ACCOUNT AND LOOSE PAPERS FOUND IN SURVEY, COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT AND MADE ADDITION OF RS. 7,59,442 /-. IN THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT, THE LEARN ED ASSESSING OFFICER HAD REFERRED TO SIX ANNEXURES. ALL THESE ANNEXURES HAVE BEEN ENQUIRED INTO AND CONSIDERED BY THE ASSESSING OFFICER WHILE F RAMING THE ORIGINAL ASSESSMENT AS EVIDENT FROM THE ASSESSMENT ORDER. TH EREFORE, REOPENING OF THE ASSESSMENT ON THE BASIS OF THOSE VERY PAPERS ON THE GROUND THAT THEY WERE NOT CONSIDERED IN COURSE OF ASSESSMENT PROCEEDI NGS U/S 143(3) OF THE ACT IS FACTUALLY INCORRECT. HENCE, THE REASSESS MENT PROCEEDINGS INITIATED BY THE ASSESSING OFFICER IS BAD IN LAW AND DESERVE TO BE QUASHED. IT IS FURTHER ARGUED THAT SECOND THOUGHT ON THE SAM E MATERIAL AND OMISSION TO DRAW THE CORRECT LEGAL PRESUMPTION DURIN G THE ORIGINAL ASSESSMENT DO NOT WARRANT THE INITIATION OF THE PROC EEDING U/S 147 OF THE ACT. HE RELIED UPON THE DECISION OF THE HON'BLE SUP REME COURT IN THE CASE OF ITO VS. NAWAB MEER BARKAT ALI KHAN BAHADUR 97 ITR 239. HE FURTHER RELIED UPON THE DECISION OF HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF SIRPUR PAPERS LIMITED VS. ITO 114 ITR 404 WHEREIN FRESH LITIGATION ON THE GROUND OF NEW VIEWS OR NEW VERSION CANNOT BE PER MITTED. IT IS SETTLED ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 11 LAW THAT ACTION U/S 147 OF THE ACT CANNOT BE TAKEN O N THE BASIS OF REASONS TO SUSPECT OR ON CHANGE OF OPINION FOR WHICH HE REL IED UPON THE DECISION IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. 320 ITR 561 (SC) AND ASIAN PAINT LTD. VS. DCIT 2008 TIOL 698 (MUM HC) AND CANNO T TAKEN ADVANTAGE OF HIS OWN WRONG DOING THROUGH REOPENING THE CASE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN TH IS CASE, IT IS EVIDENT THAT LEARNED ASSESSING OFFICER IN ORIGINAL ASSESSME NT HAD MADE SPECIFIC QUERY ON ANNEXURES- 7,8,22,23 AND 24 AND SPECIFIC R EPLY WAS FILED BY THE ASSESSEE IN ORIGINAL ASSESSMENT, WHICH HAS BEEN CON SIDERED BY THE ASSESSING OFFICER. AFTER CONSIDERING THE REPLY, A D ETAILED ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER. AS PER LAW, THE LEA RNED ASSESSING OFFICER IS NOT AUTHORIZED TO ISSUE NOTICE U/S 147 O F THE ACT ON REASON TO SUSPECT OR ON CHANGE OF OPINION. EVEN ANY WRONG DOIN G OF THE ASSESSING OFFICER CANNOT BE REMITTED THROUGH SECTION 147 OF T HE ACT AS RELIED UPON BY THE LEARNED AR. IN THIS CASE, ONLY CHANGE OF OPI NION IS THERE AND THERE IS NO TANGIBLE MATERIAL BEFORE THE ASSESSING OFFICER TO COME TO THE CONCLUSION THAT THERE WAS ESCAPEMENT OF INCOME FROM ASSESSMENT. THUS, THE FIRST GROUND OF APPEAL OF REVENUE IS DISMI SSED. 8. GROUNDS NO. 2 TO 4 OF THE APPEAL ARE AGAINST VAR IOUS ADDITIONS MADE BY THE ASSESSING OFFICER, WHICH WAS PARTLY CONFI RMED BY THE ITA 98/JP/2012 ITO VS. BIHARI LAL HOLA RAM 12 LEARNED CIT(A), ARE NOT REQUIRED TO ADJUDICATE AS N OTICE U/S 148 OF THE ACT IS HELD BAD IN LAW IN GROUND NO. 1. THEREFORE, WE DO NOT REQUIRE TO DECIDE THE APPEAL ON MERIT. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 26/09/2014. SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 26 TH SEPTEMBER, 2014 * RANJAN COPY FORWARDED TO :- 1. THE ITO, WARD 1(1), JAIPUR. 2. M/S BIHARI LAL HOLA RAM, JAIPUR. 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NO. 98/JP/2012) BY ORDER, AR ITAT JAIPUR.