JAI GLASS WORKS, MUMBAI V. DCIT 22(1), MUMBAI

ITA 982/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2114 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: I
• Next Hearing Date: 02-11-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 03-02-2011
• Court: TRIBUNAL
• Assessee Lawyers: N B GAN DHI
• Keywords: Depreciation; Wrong claim; Bad and doubtful debts; Reason to believe
• Section: 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH MUMBAI BEFORE SHRI R.C.SHARMA , A M & SHRI AMARJIT SINGH , J M ./ ITA NO . 982 / MUM/20 1 1 & ITA NO.2206/MUM/2014 ( / ASSESSMEN T YEAR : 20 0 4 - 20 05 ) M/S JAI GLASS WORKS, 201, PAREKH MARKET, M.G.ROAD, GHATKOPAR (E), MUMBAI - 400077 VS. DCIT - 22(1), MUMBAI ./ ./ PAN/GIR NO. : A A CFJ 3683 Q ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA N O .1518/MUM/2014 ( / ASSESSMENT YEAR :2004 - 2005 ) DCIT - 22(1), MUMBAI VS. M/S JAI GLASS WORKS, 201, PAREKH MARKET, M.G.ROAD, GHATKOPAR (E), MUMBAI - 400077 ./ ./ PAN/GIR NO. : A ACFJ 3683 Q ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI N.B.GANDHI /REVENUE BY : SHRI ABHISHEK SHARMA / DATE OF HEARING : 02 / 11 / 2015 / DATE OF PRONOUNCEMENT 30/11 /2015 / O R D E R P ER R.C.SHARMA (A.M) : THE ASSESSEE HAS FILED ITA NO.982/MUM/2011 (AY 2004 - 05) AGAINST THE ORDER OF CIT(A), IN THE MATTER OF ORDER P ASSED U/S.143(3) OF THE I.T.ACT, WHEREAS ITA NO.1518/MUM/2014 AND ITA NO.2206/MUM/2014 ARE DIRECTED BY BOTH THE REVENUE AND AS SESSEE AGAINST THE ORDER OF CIT(A), ITA NO S . 982/11, 1518 & 2206/14 2 FOR THE ASSESSMENT YEAR 2004 - 05, IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE ACT. ITA NO. 982/MUM/2011(BY THE ASSESSEE FOR A.Y.2004 - 05) 2 . THE FACTS OF THE APPEAL BEFORE US AND THE ADDITIONAL GROUNDS AND THE MAJORITY OF REGULAR GROUNDS OF APPEAL AS PER APPEAL MEMO FORM 36 FOR A.Y.2004 - 05 ARE SIMILAR AND IDENTICAL TO THAT OF AY 2006 - 07. 3 . RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FACTS IN BRIEF ARE THAT IN THIS CASE, RETURN OF INCOME DECLARING INCOME AT RS.12,09,990/ - WAS FILED ON 01.11.2004 . THE RETURN WAS DULY PROCESSED U/S.143(1) OF THE ACT. SUBSEQUENTLY THE CASE WAS REOPENED BY ISSUE OF NOTICE U/S.148 OF THE ACT DATED 23.06.2008 AFTER DULY RECORDING THE REASONS FOR REOPENING THE ASSESSMENT (THE CLAIM OF KEYMAN INSURANCE AMOUNTING TO RS.25,00,000/ - WAS TO BE DISALLOWED AS DECIDED IN THE ASSESSMENT FOR THE A.Y.2005 - 06). IN RESPONSE, RETURN OF INCOME DECLARING TOTAL INCOME OF RS.37,09,990/ - WAS FILED ON 17.07.2008, WHEREIN KEYMAN INSURANCE PREM IUM PAID OF RS.25,00,000/ - WAS OFFERED FOR TAXATION. T HE ASSESSMENT WAS COMPLETED U/S.147 R.W.S143(3) OF THE ACT DETERMINING THE TOTAL INCOME AT RS.58,68,250/ - . IN THE RE - ASSESSMENT ORDER SO FRAMED NO ADDITION WAS MADE WITH RESPECT TO KEYMAN INSURANCE OF R S.25 LAKHS. HOWEVER, THE AO HAS MADE OTHER ADDITIONS ON ACCOUNT OF PURCHASES, COMMISSION EXPENDITURE, FOREIGN TRAVEL EXPENDITURE ETC. THE ASSESSEE CHALLENGED THE REASSESSMENT SO FRAMED U/S.143(3) R.W.S.147 ON THE PLEA THAT NO ADDITION WAS MADE WITH REFEREN CE TO THE DISALLOWANCE OF KEYMAN INSURANCE PREMIUM, WHICH WAS THE ONLY REASO N FOR REOPENING THE ITA NO S . 982/11, 1518 & 2206/14 3 ASSESSMENT, THEREFORE, REASSESSMENT ORDER DO NOT SURVIVE. THE CONTENTION OF LD. AR WAS THAT THE ASSESSEE HAD VOLUNTARILY WITHDRAWN THE CLAIM OF KEYMAN INSURANCE PREMIUM ON 28.3.2008 I.E. PRIOR TO ISSUE OF NOTICE U/S.148 DATED 23.6.2008. IT WAS FURTHER SUBMITTED THAT EVEN IN THE RETURN OF INCOME SO FILED IN RESPONSE TO NOTICE U/S.148 THE ASSESSEE HAD DECLARED TOTAL INCOME OF RS.37,09,990/ - WHEREIN KEYMAN INSURANCE PAID OF RS.25 LAKHS WAS OFFERED FOR TAXATION. 4 . BY THE IMPUGNED ORDER THE CIT(A) CONFIRMED THE ACTION OF THE AO AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5 . AT THE OUTSET, IT WAS CONTENDED BY LD. AR THAT THE ASSESSEE HAD FILED APPEAL BEFORE THE TRIBUNAL I.E. ITA NO.2557/MUM/2013 FOR AY 2006 - 07, WHEREIN THE ADDITIONAL GROUNDS OF APPEAL ARE IDENTICAL TO THE ADDITION GROUNDS OF APPEAL FOR AY 2004 - 05. THE TRIBUNAL VIDE ITS ORDER DATED 30 - 9 - 2015, PASSED IN ITA NO.2557/MUM/2013 FOR THE A.Y.2006 - 07 HAS ALLOWED ASSESSEES APPEAL AFTER HAVING DETAILED OBSERVATIONS IN PARA 15 OF ITS ORDER. THUS, THE APPEAL FILED BY THE ASSESSEE IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, PERUSED TH E RECORD CAREFULLY AND GONE THROUGH THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.2557/MUM/2013, FOR A.Y.2006 - 07, WHEREIN THE RE ASSESSMENT ORDER SO FRAMED WAS HELD TO BE NOT SUSTAINABLE BECAUSE NO ADDITION WAS MADE ON ACCOUNT OF KEYMAN INSURAN CE PREMIUM . THE PRECISE OBSERVATION OF THE TRIBUNAL WAS AS UNDER : - ITA NO S . 982/11, 1518 & 2206/14 4 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULLY. SECTION 147 OF THE ACT EMPOWERS THE ASSESSING OFFICER TO ASSESS OR RE - ASSESS ANY INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESS MENT, SUBJECT TO THE CONDITIONS PRESCRIBED THEREIN. NOTABLY, SECTION 147 OF THE ACT ALSO EMPOWERS THE ASSESSING OFFICER TO ASSESS OR RE - ASSESS ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN TH E COURSE OF ASSESSMENT PROCEEDINGS INITIATED UNDER THE SECTION. IN THIS CONTEXT, IT WOULD ALSO BE RELEVANT TO NOTICE THE EXPLANATION (III) INSERTED BY THE FINANCE ACT (2) W.R.E.F 1.4.1989, WHICH ENVISAGES THAT THOUGH THE NOTICE ISSUED U/S 148 CONTAINING T HE REASONS FOR REOPENING DOES NOT CONTAIN A REFERENCE TO A PARTICULAR ISSUE WITH REFERENCE TO WHICH INCOME HAD ESCAPED ASSESSMENT, THE ASSESSING OFFICER MAY ASSESS OR RE - ASSESS THE INCOME IN RESPECT OF ANY ISSUE WHICH HAS ESCAPED ASSESSMENT WHEN SUCH ISSUE COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDING UNDER THIS SECTION. THE POWER OF THE ASSESSING OFFICER TO ASSESS OR RE - ASSESS THE INCOME IN RESPECT OF ANY ISSUE WHICH HAS ESCAPED ASSESSMENT WHEN SUCH ISSUE COMES TO HIS NOTICE SUBSEQUENTL Y IN THE COURSE OF THE PROCEEDINGS AND THE SAME WAS NOT CONTAINED IN THE NOTICE OUTLINING THE REASONS FOR REOPENING, WAS A SUBJECT - MATTER OF CONSIDERATION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE JET AIRWAYS (SUPRA). THE HONBLE HIGH COURT CONSIDERED THE EFFECT OF THE AMENDMENT MADE TO SECTION 147 OF THE ACT BY WAY OF INSERTION OF EXPLANATION (III) W.E.F 1.4.1989 AND HELD THAT THE ASSESSING OFFICER CAN ALSO ASSESS OTHER INCOMES NOT REFERRED TO IN THE NOTICE OF RE - ASSESSMENT BUT ONLY IF THE INCOME REFE RRED TO IN THE NOTICE OF RE - ASSESSMENT HAS BEEN SUBJECT TO ASSESSMENT. THE FOLLOWING DISCUSSION IN THE HEAD NOTE OF THE JUDGMENT IS RELEVANT IN THIS REGARD: - SECTION 147 HAS THIS EFFECT THAT THE ASSESSING OFFICER HAS TO ASSESS OR REASSESS THE INCOME ('SU CH INCOME') WHICH ESCAPED ASSESSMENT AND WHICH WAS THE BASIS OF THE FORMATION OF BELIEF AND IF HE DOES SO, HE CAN ALSO ASSESS OR REASSESS ANY OTHER INCOME WHICH HAS ESCAPED ASSESSMENT AND WHICH, COMES TO HIS NOTICE DURING THE COURSE OF THE PROCEEDINGS. HOW EVER, IF AFTER ISSUING A NOTICE UNDER SECTION 148, HE ACCEPTED THE CONTENTION OF THE ASSESSEE AND HOLDS THAT THE INCOME WHICH HE HAS INITIALLY FORMED A REASON TO BELIEVE HAD ESCAPED ASSESSMENT, HAS AS A MATTER OF FACT NOT ESCAPED ASSESSMENT, IT IS NOT OPEN TO HIM INDEPENDENTLY TO ASSESS SOME OTHER INCOME. IF HE INTENDS TO DO SO, A FRESH NOTICE UNDER SECTION 148 WOULD BE NECESSARY, THE LEGALITY OF WHICH WOULD BE TESTED IN THE EVENT OF A CHALLENGE BY THE ASSESSED. 13. IN THE INSTANT CASE, THE PLEA OF THE AS SESSEE IS THAT THE ADDITIONS MADE IN THE IMPUGNED ASSESSMENT ON ACCOUNT OF FOLLOWING ITEMS NAMELY, (I) RS. 11,54,017/ - OUT OF EXPENDITURE ON COMMISSION PAID; (II) RS. 1,26,126/ - BAD DEBTS; (III) RS. 1,67,162/ - OUT OF FOREIGN TRAVEL EXPENSES; (IV) RS. 1,0 0,000/ - OUT OF THE TOTAL ITA NO S . 982/11, 1518 & 2206/14 5 TRAVELLING EXPENSES OF RS. 9,13,311/ - ; (V) RS. 64,638/ - OUT OF THE TRANSPORT CHARGES; (VI) RS. 10,00,000/ - ON ACCOUNT OF INTEREST RELATING TO THE LOANS ADVANCED; (VII) RS. 46,871/ - OUT OF DEPRECIATION CLAIMED; (VIII) RS. 70,389/ - OUT OF THE TELEPHONE EXPENSES; AND, (IX) RS. 86,496/ - OUT OF MOTOR CAR EXPENSES AND DEPRECIATION, COULD HAVE BEEN MADE ONLY IN CASE THE INCOME REFERRED TO IN THE NOTICE OF REASSESSMENT I.E. PAYMENT OF KEYMAN INSURANCE PREMIUM OF RS. 25,00,000/ - HAS BEEN A SSESSED. ACCORDING TO THE APPELLANT, THE KEYMAN INSURANCE PREMIUM PAID OF RS. 25,00,000/ - WAS OFFERED TO TAX BY THE ASSESSEE VOLUNTARILY PRIOR TO THE INITIATION OF PROCEEDINGS U/S 147 /148 OF THE ACT BY PAYING THE REQUISITE TAX AND INTEREST ON 27.03.2008 ITSELF. THUS, THE SAME COULD NOT BE CONSTRUED AS AN INCOME WHICH HAS BEEN ASSESSED BY THE ASSESSING OFFICER IN THE IMPUGNED ASSESSMENT ORDER DATED 29.12.2008. 14. ANOTHER ASPECT WHICH IS CENTRAL TO THE CONTROVERSY BEFORE US IS THAT UNDER SECTION 147/148 OF THE ACT, THE ASSESSING OFFICER GETS JURISDICTION TO ASSESS OR RE - ASSESS THE INCOME WHICH HAS ESCAPED ASSESSMENT ONLY AFTER COMPLYING WITH THE REQUIREMENTS OF SUB - SECTION (2) OF SECTION 148, WHICH PRESCRIBES THAT THE ASSESSING OFFICER OUGHT TO RECORD H IS REASONS FOR INITIATION OF PROCEEDINGS U/S 147/148 OF THE ACT. THE QUESTION IS AS TO WHETHER THE REQUIREMENTS OF SUB - SECTION (2) OF SECTION 148 OF THE ACT, HAS TO BE COMPLIED WITH EVEN WHERE THE ASSESSING OFFICER SEEKS TO ASSESS OR RE - ASSESS AN ESCAP ED INCOME WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF PROCEEDINGS WHICH WERE INITIATED UNDER SECTION 147/148 ON SOME OTHER GROUNDS. IN OTHER WORDS, IN CASE WHERE THE PROCEEDINGS ARE ALREADY INITIATED U/S 147 OF THE ACT, THEN IN RESPECT OF THE ITEMS STATED IN THE REASONS RECORDED, IT WOULD NOT BE NECESSARY TO RECORD ANY FURTHER REASONS CONTEMPLATED IN SECTION 148(2) BUT IN RESPECT OF THE ITEMS WHICH COME TO HIS NOTICE SUBSEQUENTLY, IS IT NECESSARY THAT HE SHOULD RECORD THE REASONS CONTEMPLATED UNDER SUB - SECTION (2) OF SECTION 148 OF THE ACT TO ASSESS OR REASSESS SUCH INCOMES? THE AFORESAID CONTROVERSY HAS BEEN CONSIDERED BY THE HONBLE KERALA HIGH COURT IN THE CASE OF TRAVANCORE CEMENTS LTD. (SUPRA) AND THE FOLLOWING DISCUSSION IN THE ORDER OF HONBLE KERALA HIGH COURT IS RELEVANT: - 9. SECTION 148 DEALS WITH ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMENT. IT STATES THAT BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147, THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME OR THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RE LEVANT ASSESSMENT YEAR, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED. SUB - SECTION (2) OF SECTION 148 STATES THAT THE ASSESSING OFFICER SHALL BEFORE DOING SO RECORD HIS REASONS FO R ISSUING SUCH NOTICE. RECORDING OF REASONS BEFORE ISSUING NOTICE IS A MANDATORY REQUIREMENT. ITA NO S . 982/11, 1518 & 2206/14 6 ASSESSING OFFICER IS ALSO EMPOWERED UNDER SECTION 147 TO ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT A ND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER SECTION 147. ASSESSING OFFICER GETS JURISDICTION UNDER SECTION 148 TO ASSESS OR REASSESS THE INCOME WHICH HAS ESCAPED ASSESSMENT ONLY AFTER SUB - SECTION (2) OF SECTION 148 IS C OMPLIED WITH. THE QUESTION IS WHETHER SUB - SECTION (2) OF SECTION 148 HAS TO BE COMPLIED WITH IF ANY OTHER INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, OR WHICH COMES TO HIS KNOWLEDGE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS. IN OTHER WORDS, WHEN P ROCEEDINGS ARE ALREADY ON IN RESPECT OF ONE ITEM IN RESPECT OF THE INCOME FOR WHICH HE HAD ALREADY RECORDED REASONS IS IT NECESSARY THAT HE SHOULD RECORD REASONS FOR ASSESSING OR REASSESSING ANY OF THE ITEMS WHICH ARE TOTALLY UNCONNECTED WITH THE PROCEEDIN GS ALREADY INITIATED. SUPPOSE UNDER TWO HEADS, INCOME HAS ESCAPED ASSESSMENT AND THOSE TWO HEADS ARE INTERLINKED AND CONNECTED, THE PROCEEDINGS INITIATED OR NOTICE ALREADY ISSUED UNDER SUB - SECTION (2) OF SECTION 148 WOULD BE SUFFICIENT IF THE ESCAPED INCOM E ON THE SECOND HEAD COMES TO THE KNOWLEDGE OF THE OFFICER IN THE COURSE OF THE PROCEEDINGS. BUT IF BOTH THE ITEMS ARE UNCONNECTED AND TOTALLY ALIEN THEN THE ASSESSING AUTHORITY HAS TO FOLLOW SUB - SECTION (2) OF SECTION 148 WITH REGARD TO THE ESCAPED INCOME WHICH COMES TO HIS KNOWLEDGE DURING THE COURSE OF THE PROCEEDINGS. THE EXPRESSION SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153 IN SECTION 147 LENDS SUPPORT TO THE ABOVE VIEW. 15. BY APPLYING THE AFORESAID PRINCIPLE LAID DOWN BY THE HONBLE COURT W E MAY NOW EXAMINE THE ISSUE AS TO WHETHER IN THE INSTANT CASE, THE ASSESSING OFFICER HAS CORRECTLY ASSUMED JURISDICTION TO ASSESS THE NINE ITEMS OF INCOME TOTALING TO RS. 26,34,935/ - , NOTED BY US EARLIER. QUITE CLEARLY, ALL THE AFORESAID NINE ITEMS, WHIC H WE HAVE DETAILED EARLIER, ARE UNCONNECTED WITH THE ISSUE WHICH FORMED THE BASIS FOR INITIATION OF PROCEEDINGS U/S 148 OF THE ACT. PERTINENTLY, THE PROCEEDINGS WERE INITIATED TO BRING TO TAX THE PAYMENT OF KEYMAN INSURANCE PREMIUM OF RS. 25,00,000/ - . MORE OVER, IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT DURING THE COURSE OF IMPUGNED ASSESSMENT PROCEEDINGS, HE HAS COME ACROSS ANY MATERIAL RELATING TO THE AFORESAID NINE ITEMS WHICH SUGGESTED THAT ANY ESCAPEMENT OF INCOME WITHIN THE MEANING OF SECTION 1 47 OF THE ACT. UNDER THESE CIRCUMSTANCES, WE ARE IN AGREEMENT WITH THE ASSERTIONS PUT FORTH BY THE ASSESSEE THAT THE AFORESAID INCOMES HAVE BEEN SOUGHT TO BE ASSESSED BASED ON FISHING AND ROVING ENQUIRIES IN MATTERS, WHICH WERE UNCONNECTED WITH THE ORIGIN AL ISSUE ON THE BASIS OF WHICH PROCEEDINGS U/S 147 WERE INITIATED. FACTUALLY SPEAKING, IN THE ENTIRE ASSESSMENT ORDER, THERE IS NO ALLEGATION MUCH LESS ANY FINDING BY THE ASSESSING OFFICER THAT THE NINE ITEMS OF INCOME REPRESENT ANY ESCAPEMENT OR UNDER ASS ESSMENT OF INCOME WITHIN THE MEANING OF SECTION 147/148 OF THE ITA NO S . 982/11, 1518 & 2206/14 7 ACT. THEREFORE, IN OUR VIEW, THE ASSESSING OFFICER WAS CLEARLY DENUDED OF A VALID JURISDICTION TO ASSESS THE INCOMES ON ACCOUNT OF NINE ITEMS, NAMELY, (I) RS. 11,54,017/ - OUT OF EXPENDITURE O N COMMISSION PAID; (II) RS. 1,26,126/ - OUT OF BAD DEBTS; (III) RS. 1,67,162/ - OUT OF FOREIGN TRAVEL EXPENSES; (IV) RS. 1,00,000/ - OUT OF THE TOTAL TRAVELLING EXPENSES OF RS. 9,13,311/ - ; (V) RS. 64,638/ - OUT OF THE TRANSPORT CHARGES; (VI) RS. 10,00,000/ - O N ACCOUNT OF INTEREST RELATING TO THE LOANS ADVANCED; (VII) RS. 46,871/ - OUT OF DEPRECIATION CLAIMED; (VIII) RS. 70,389/ - OUT OF THE TELEPHONE EXPENSES; AND, (IX) RS. 86,496/ - OUT OF MOTOR CAR EXPENSES AND DEPRECIATION IN THE IMPUGNED ASSESSMENT. RETURN OF INCOME FILED BY THE ASSESSEE QUA THE AFORESAID ITEMS OF INCOME HAD ALREADY BECOME FINAL AND THAT FINALITY CANNOT BE DISTURBED IN A PROCEEDING U/S 147 OF THE ACT, IN THE ABSENCE OF ANY MATERIAL ON RECORD TO SUGGEST ESCAPEMENT OF INCOME. THEREFORE, WE CO NCLUDE BY HOLDING THAT THE INCOME OF RS. 26,24,935/ - ASSESSED BY THE ASSESSING OFFICER IN RELATION TO THE AFORESAID NINE ITEMS IN THE IMPUGNED PROCEEDINGS IS BEREFT OF JURISDICTION AND IS HEREBY DIRECTED TO BE DELETED. THUS, ASSESSEE SUCCEEDS ON THE ADDIT IONAL GROUNDS AS ABOVE. 7. IN THE INSTANT ASSESSMENT YEAR 2004 - 05 UNDER CONSIDERATION THE ASSESSMENT WAS REOPENED ON THE PLEA THAT CLAIM OF DEDUCTION OF KEYMAN INSURANCE WAS NOT CORRECT. HOWEVER, IN THE REASSESSMENT NO ADDITION WAS MADE ON ACCOUNT OF KEY MAN INSURANCE PREMIUM. THE ITAT J BENCH IN ASSESSEES OWN CASE FOR A.Y.2006 - 07 VIDE ORDER DATED 30 - 9 - 2015 AS REPRODUCED ABOVE HELD THAT REASSESSMENT ORDER SO PASSED WITHOUT MAKING ANY ADDITION ON ACCOUNT OF KEYMAN INSURANCE PREMIUM, WHEN THE REOPENING WA S SOLELY ON THE GROUND OF WRONG CLAIM OF KEYMAN INSURANCE PREMIUM. 8 . AS THE FACTS AND CIRCUMSTANCES DURING THE YEAR UNDER CONSIDERATION ARE EXACTLY SAME, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE, WE DO NOT FIND ANY MERIT FO R REOPENING OF THE ASSESSMENT. ITA NO S . 982/11, 1518 & 2206/14 8 ITA NO. 1518 & 2206/MUM/2014(AY:2004 - 05) 9 . THESE CROSS APPEALS HAVE BEEN FILED BY THE REVENUE AND ASSESSEE FOR THE A.Y.2004 - 05, IN THE MATTER OF IMPOSITION OF PENALTY U/S.271(1)(C) OF THE ACT. THE APPEAL FILED BY THE ASSES SEE I.E. ITA NO. 1518/MUM/2014 IS BARRED BY 22 DAYS. 10 . THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY. WE HAVE GONE THROUGH THE CONDONATION APPLICATION AND FOUND THAT THE ASSESSEE HAS MENTIONED SUFFICIENT REASONS FOR DELAY OF 22 DAYS IN FILING APPEAL. HENCE, WE ALLOW THE APPLICATION OF THE ASSESSEE AND CONDONE THE DELAY OF 22 DAYS IN FILING THE APPEAL. 1 1 . AS DISCUSSED ABOVE, IN ITA NO.982/MUM/2011, THE AO HAS MADE ADDITION AFTER REOPENING THE ASSESSMENT U/S.147 OF THE ACT. THE AO HAS ALS O LEVIED PENALTY FOR THE ADDITION SO MADE, PART OF WHICH WAS DELETED BY THE CIT(A). AS WE HAVE ALREADY QUASHED THE REOPENING OF THE ASSESSMENT AND CONSEQUENTIAL ASSESSMENT SO MADE, THE PENALTY LEVIED FOR THE ADDITION SO MADE BY THE AO U/S.143(3)/147 OF THE ACT HAS NO LEGS TO STAND. 1 2 . IN THE RESULT, APPEAL OF THE ASSESSEE I.E. ITA NO.982/MUM/2011 & ITA NO. 2206/MUM/2014 ARE ALLOWED, WHEREAS APPEAL OF THE OF THE REVENUE I.E. ITA NO.1518/MUM/2014 IS DISMISSED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 30/11 / 201 5 . SD/ - SD/ - ( AMARJIT SINGH ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 30/11 /201 5 . . /PKM , . / PS ITA NO S . 982/11, 1518 & 2206/14 9 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//