ITD ITD CEM JOINT VENTURE,MUMBAI V. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 5(1), MUMBAI, MUMBAI

ITA 4620/MUM/2024

AI Insights

The case involves multiple appeals by ITD Cementation India Ltd. and ITD ITD Cem Joint Venture against the reassessment orders issued by the Deputy Commissioner of Income-tax, Central Circle 5(1), Mumbai, for the Assessment Years 2015-16, 2016-17, and 2019-20. The primary issues revolved around the legality of the reassessment notices issued under section 148, the applicability of the new regime of reassessment introduced by the Finance Act, 2021, and the treatment of foreseeable losses in the accounts of the assessee. The Tribunal examined the compliance with procedural requirements for reassessment and the substantive issues related to the recognition of foreseeable losses under the applicable accounting standards.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 37542 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Other Referred Cases: Union of India vs. Ashish Agarwal, Union of India and other Vs. Rajeev Bansal, IBIBO Group Pvt. Ltd. vs. ACIT, Panchsheel Colonizers (P.) Ltd. vs. CIT, Taparia Tools Ltd. v. CIT, International Seaport Regime (P) Ltd. vs. DCIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: COORDINATE BENCHES
• Keywords: Set aside; Rule of consistency; Period of limitation; Bogus
• Section: 147; 148; 133(6); 145; 37; 28; 2; 15; 115JB; 37(1); 145(3)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH MUMBAI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER ITA Nos. 4539, 4568 and 4532/MUM/2024 Assessment Years: 2015-16, 2016-17 and 2019-20 ITD Cementation India Ltd., 9th Floor, Prima Bay, Tower-B, Saki Vihar Road, Powai, Mumbai – 400 072 (PAN : AAACT1426A) Vs. Deputy Commissioner of Income-tax, Central Circle 5(1), Mumbai (Appellant) (Respondent) ITA Nos. 5235 and 5234 /MUM/2024 Assessment Years: 2015-16 and 2016-17 Deputy Commissioner of Income-tax, Central Circle 5(1), Mumbai Vs. ITD Cementation India Ltd., 9th Floor, Prima Bay, Tower-B, Saki Vihar Road, Powai, Mumbai – 400 072 (PAN : AAACT1426A) (Appellant) (Respondent) ITA No. 4620/MUM/2024 Assessment Year: 2015-16 ITD ITD Cem Joint Venture, 9th Floor, Prima Bay, Tower-B, Saki Vihar Road, Powai, Mumbai – 400 072 (PAN : AAAJI0262Q) Vs. Deputy Commissioner of Income-tax, Central Circle 5(1), Mumbai (Appellant) (Respondent) 2 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 ITA No. 5232/MUM/2024 Assessment Year: 2015-16 Deputy Commissioner of Income-tax, Central Circle 5(1), Mumbai Vs. ITD ITD Cem Joint Venture, 9th Floor, Prima Bay, Tower-B, Saki Vihar Road, Powai, Mumbai – 400 072 (PAN : AAAJI0262Q) (Appellant) (Respondent) Present for: Assessee : Shri Vijay Mehta, CA Revenue : Shri Amol Kirtane, CIT DR Date of Hearing : 19.12.2024 Date of Pronouncement : 17.03.2025 O R D E R PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: All these captioned five appeals filed by both, assessee and revenue are against the orders of Ld. CIT(A) passed against the assessment orders passed by Assistant Commissioner of Income-tax, Central Circle 5(1), Mumbai. Consolidated details of these appeals are tabulated below: Sr. No. ITA No. Order of CIT(A) Assessment order Assess- ment year Appeal by No. Date Passed by Date Passed u/s. 1. 4539/MUM/2 024 ITBA/APL /S/250/2 024- 25/10670 66854(1) 26.07.20 24 Asst. CIT(A), CC-5(1), Mumbai 31.03.20 23 143(3) 2015- 16 Assessee 2. 5235/Mum/2 024 ITBA/APL /S/250/2 26.07.20 24 Asst. CIT(A), CC-5(1), 31.03.20 23 143(3) 2015- 16 Revenue 3 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 024- 25/10670 66854(1) Mumbai 3. 4568/Mum/2 024 ITBA/APL /S/250/2 024- 25/10670 69387(1) 26.07.20 24 Asst. CIT(A), CC-5(1), Mumbai 31.03.20 23 143(3) 2016- 17 Assessee 4. 5234/Mum/2 024 ITBA/APL /S/250/2 024- 25/10670 69387(1) 26.07.20 24 Asst. CIT(A), CC-5(1), Mumbai 31.03.20 23 143(3) 2016- 17 Revenue 5. 4532/Mum/2 024 ITBA/APL /S/250/2 024- 25/10670 68943(1) 26.07.20 24 Asst. CIT(A), CC-5(1), Mumbai 08.06.20 23 143(3) r.w.s. 147 2019- 20 Assessee 6. 4620/Mum/2 024 ITBA/APL /S/250/2 024- 25/10670 77893(1) 26.07.20 24 Asst. CIT(A), CC-5(1), Mumbai 08.05.20 23 143(3) r.w.s. 147 2015- 16 Assessee 7. 5232/Mum/2 024 ITBA/APL /S/250/2 024- 25/10670 77893(1) 26.07.20 24 Asst. CIT(A), CC-5(1), Mumbai 08.05.20 23 143(3) r.w.s. 147 2015- 16 Revenue 2. Common issues are involved in all these appeals and therefore taken up together by way of passing a consolidated order for the sake of convenience. 3. We first take up appeals for Assessment Year 2015-16, in case of both the assessees, i.e., ITD Cementation India Ltd., and ITD ITD Cem 4 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 Joint Venture, in their respective appeal numbers, for which the facts are drawn from the case of ITD Cementation India Ltd. 3.1. Assessee is engaged in the business of civil, mining, marine and engineering and construction activities by undertaking projects for dams, highways and other infrastructure facilities. It filed its return of income on 30.11.2015 reporting total loss at Rs.178,22,74,671/-. Original scrutiny assessment u/s.143(3) was completed vide order dated 28.06.2017 determining total loss at Rs.177,95,92,670/-. Subsequently, notice u/s. 148 was issued on 20.04.2021. Later, pursuant to the order of Hon'ble Supreme Court in the case of Union of India vs. Ashish Agarwal [2022] 444 ITR 1(SC), it was directed among other things that notice issued u/s.148 shall be deemed to have been issued u/s. 148A as substituted by the Finance Act, 2021 and construed or treated to be the show cause notice in terms of section 148A(b). In view of this direction, the said notice u/s. 148, dated 20.04.2021 was deemed to be a show cause notice u/s. 148A(b) for which another one was issued on 30.05.2022. 3.2. Thereafter, provisions of section 148A(d) were complied with by passing an order, dated 25.07.2022 and issuing a notice u/s.148 of the same date. Assessee has contested by raising a ground that the notice so issued is barred by limitation apart from raising several other grounds to challenge the legality of re-assessment proceedings and notices issued thereafter. At the outset, we find that this issue has been settled in the case of Union of India and other Vs. Rajeev Bansal [2024] 167 taxmann.com 70 (SC). The Hon’ble Supreme Court had referred to the submissions made on behalf of the Revenue vide para 19 which is relevant and the same is reproduced hereunder:- 5 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 “19. Mr N Venkataraman, learned Additional Solicitor General of India, made the following submissions on behalf of the Revenue: a. Parliament enacted TOLA as a free-standing legislation to provide relief and relaxation to both the assessees and the Revenue during the time of COVID- 19. TOLA seeks to relax actions and proceedings that could not be completed or complied with within the original time limits specified under the Income Tax Act, b. Section 149 of the new regime provides three crucial benefits to the assesses: (i) the four-year time limit for all situations has been reduced to three years, (ii) the first proviso to Section 149 ensures that re-assessment for previous assessment years cannot be undertaken beyond six years, and (iii) the monetary threshold of Rupees fifty lakhs will apply to the re- assessment for previous assessment years, c. The relaxations provided under Section 3(1) of TOLA apply \"notwithstanding anything contained in the specified Act.\" Section 3(1), therefore, overrides the time limits for issuing a notice under Section 148 read with Section 149 of the Income Tax Act; d. TOLA does not extend the life of the old regime. It merely provides a relaxation for the completion or compliance of actions following the procedure laid down under the new regime; e. The Finance Act 2021 substituted the old regime for re-assessment with a new regime. The first proviso to Section 149 does not expressly bar the application of TOLA. Section 3 of TOLA applies to the entire Income Tax Act including Sections 149 and 151 of the new regime. Once the first proviso to Section 149(1)(b) is read with TOLA, then all the notices issued between 1 April 2021 and 30 June 2021 pertaining to assessment years 2013-2014, 2014-2015, 2015-2016, 2016-2017 and 2017-2018 will be within the period of limitation as explained in the tabulation below; Assessme nt Year (1) Within 3 Years (2) Expiry of Limitation read with TOLA for (2) (3) Within six Years (4) Expiry of Limitation read with TOLA for (4) (5) 2013- 2014 31.03.2017 TOLA not applicable 31.03.2020 30.06.2021 2014- 2015 31.03.2018 TOLA not applicable 31.03.2021 30.06.2021 2015- 2016 3103.2019 TOLA not applicable 31.03.2022 TOLA not applicable 2016- 2017 31.03.2020 30.06.2021 31.03.2023 TOLA not applicable 2017- 2018 31.03.2021 30.06.2021 31.03.2024 TOLA not applicable 6 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 f. The Revenue concedes that for the assessment year 2015-16, all notices issued on or after 1 April 2021 will have to be dropped as they will not fall for completion during the period prescribed under TOLA; g. Section 2 of TOLA defines \"specified Act\" to mean and include the Income Tax Act. The new regime, which came into effect on 1 April 2021, is now part of the Income Tax Act. Therefore, TOLA continues to apply to the Income Tax Act even after 1 April 2021; and h. Ashish Agarwal (supra) treated Section 148 notices issued by the Revenue between 1 April 2021 and 30 June 2021 as show-cause notices in terms of Section 148A(b). Thereafter, the Revenue issued notices under Section 148 of the new regime between July and August 2022. Invalidation of the Section 148 notices issued under the new regime on the ground that they were issued beyond the time limit specified under the Income Tax Act read with TOLA will completely frustrate the judicial exercise undertaken by this Court in Ashish Agarwal (supra). 3.3. Thus, it can be seen that, one very important fact which has been stated by the Revenue before the Hon’ble Supreme Court in para 19 (f) wherein the Revenue concedes that for the A.Y.2015-16, all notices issued on or after 1 April 2021 will have to be dropped as they will not fall for completion during the period prescribed under TOLA. 3.4. This issue had come up before Hon'ble Delhi High Court in the case of IBIBO Group Pvt. Ltd. vs. ACIT, WP(C)17639 of 2022, dated 13.12.2024 wherein re-assessment action for Assessment Year 2015- 16 was held to be not sustainable. Hon'ble Court quashed the notice issued u/s.148 as well as order passed u/s. 148A(d), dated 23.07.2022 for Assessment Year 2015-16 by following the decision in the case of Rajeev Bansal (supra). 3.5. In the assessee’s case, since the notice issued u/s.148 is dated 25.07.2022, a period of six years expired on 31.03.2022 and is thus barred by limitation. Accordingly, the notice so issued and assessment completed thereafter u/s. 147 is liable to be quashed, in view of the decision of Hon'ble Supreme Court in the case of Rajeev Bansal (supra) 7 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 which was followed by Hon'ble Delhi High Court in the case of IBIBO (supra). These observations and findings apply mutatis mutandis to the appeal in the case of ITD ITD Cem Joint Venture for Assessment Year 2015-16 in ITA No. 4620/Mum/2024 and 5232/Mum/2024. 4. Assessee also raised a legal issue of re-opening of the proceedings being bad in law which have been initiated for Assessment Year 2016- 17 in the case of ITD Cementation India Ltd., in ITA No.4568/Mum/2024. In this case, re-assessment proceedings were initiated by issuing notice u/s.148 dated 20.04.2021, on the reasons to believe recorded as under: \"2. Brief details of information collected/received by the AO: ……………It was noticed from assessment order that the assessing officer had added an amount of Rs. 2, 45, 07,479 as provision for foreseeable losses in the normal income of the assessee but it was not considered for addition to income under MAT.\" 4.1. Based on the above reasons, it is noted that the information available with the ld. Assessing Officer is in respect of addition of provision for foreseeable losses of Rs.2,45,07,479/- to the book profit u/s.115JB. Under the new provisions of section 148 as amended by Finance Act, 2021, ld. Assessing Officer is empowered to issue notice for re-assessment, if there is information with the Assessing Officer, which suggests that the income chargeable to tax has escaped assessment. Furthermore, under the new regime of re-assessment proceedings u/s.148 r.w.s. 147, one of the essential criteria to reopen any assessment proceedings beyond three years, as contemplated u/s. 149 is that escapement of income should be represented in the form of an asset. Explanation to the said section mentions that “asset” shall include immovable property, being land or building or both, shares and 8 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 securities, loans and advances, deposits in bank account. Addition in respect of provision for foreseeable losses for computing book profit u/s.115JB is not in the form of any asset, more particularly, when in the reasons it is mentioned that this was not considered for addition to income under MAT. 4.2. In this respect, we further note that the amount of foreseeable losses is not an item to be added to the book profit under the provisions of section 115JB of the Act, which we shall deal more elaborately while dealing on the merits of the case. Taking into consideration the above facts in juxtaposition, we find that ld. Assessing Officer initiated the re- assessment proceedings on an incorrect perspective of the information for passing order u/s.148A(d) and issuing notice u/s. 148. Taking into account applicable position of law as discussed above, the action of ld. Assessing Officer is not in accordance with the said provisions and therefore is invalid, resulting in making the re-assessment also bad in law. Accordingly, ground raised by the assessee in this respect, is allowed. 5. We also deal with the merits of the case, since it relates to legacy issue travelling since Assessment Year 2004-05 and has a bearing on the appeals for subsequent years. 6. On the merits of the case, we first take up ground no.2 in respect of disallowance made by ld. Assessing Officer u/s. 37(1) for Rs.3,78,68,000/- towards amount debited to the profit and loss account for “Provisions for foreseeable losses” accounted as per Accounting Standard-7 : “Construction contract”, issued by Institute of Chartered Accountants of India (ICAI). 9 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 6.1. It was found that assessee has claimed a sum of ₹4,22,02,468/- on account of foreseeable losses. Assessee was asked about the above losses and their allowability. It was submitted that as the assessee is engaged in construction activity, it has executed projects at various places. In some of the contracts, the total cost exceeds the contract value of the project and thus, it has incurred losses. Assessee relied on Accounting Standard (AS) 7 for accounting of construction contracts prescribed by ICAI and stated that the same is allowable. It was further stated that the co-ordinate Bench in assessee's own case has allowed such losses as deduction. Assessee submitted detail project wise working of such losses. The same was-reproduced-on-page-no.10-of- the-assessment-order. Ld. Assessing Officer held that provision for foreseeable losses is not an expenditure incurred in the year under consideration and these are likely losses and therefore, though it may be required to be provided as per AS 7, but same is not allowable under the Act. Therefore, itwas disallowed. 6.2. This issue was held in favour of the assessee in its own case, for Assessment Year 2004-05 in order passed by Coordinate Bench of ITAT, Mumbai in ITA No.2991/Mum/2011, dated 17.05.2013 which was subsequently followed in later years. However, in appeal for Assessment Year 2016-17, the Coordinate Bench decided on the same issue against the assessee. Subsequently, in the appeal for Assessment Year 2017- 18, this issue was decided in favour of the assessee after considering the order passed against the assessee for Assessment Year 2016-17. 6.3. The Coordinate Bench in its appeal for Assessment Year 2017-18 in ITA No. 2090/Mum/2023, dated 16.05.2024, elaborately dealt with 10 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 the observations and findings given against the assessee in appeal for Assessment Year 2016-17 which are extracted below: 014. The learned Departmental Representative vehemently submitted that though in the case of the assessee for earlier years starting from 2004-05 till 2015-16, the co-ordinate Bench has allowed the claim but for A.Y. 2016-17, the coordinate Bench in ITA No.642/Mum/2023 dated 31st July 2023 has held otherwise. He referred to paragraph no.6 of the order. He submits that the argument of the learned Departmental Representative shows that foreseeable losses have been computed by the assessee on the basis of expenses which were not incurred in the year under consideration but to be incurred in future years for completion of the relevant works contract project. Therefore, it was contended that expenditure is not an ascertained liability for the year under consideration. The learned Departmental Representative further stated that the assessee has not filed any details of expenses which would be incurred in future years and in absence of which, even the estimate was without any foundation or documentary basis. The co-ordinate Bench in paragraph no.6.3, 6.4, held that the claim of the assessee is neither supported by the AS 7 nor allowable under the provisions of the Act, Following the decision of the coordinate Bench in case of L‟Oreal India in ITA No.1198/Mum/2021, claim was rejected. With respect to the earlier decisions of co-ordinate Bench in assessee‟s own case it was held that rule of consistency cannot be a substitute for perpetuating an error. It was further held that the claim of foreseeable losses would be allowable in the year of incurring expenses and not in the year prior to that. It further rejected the contention of the assessee that if the expenses are allowed in the subsequent year without incurring, instead of the year in which the provision is made for foreseeable losses, the coordinate Bench rejected the same stating that unless the expenditure quantified, these arguments cannot be accepted. The co-ordinate bench also did not restore the issue in dispute to the file of the learned Assessing Officer for the reason that there is nothing to verify for this year by ld. AO. Accordingly, the appeal of the Revenue to that extent is allowed. Thus, the learned Departmental Representative submitted that now the issue has been decided by the co-ordinate Bench in favor of the Revenue, all the earlier year decisions in assessee‟s own case are held to be incorrect and therefore, those decisions cannot be followed now. The learned Departmental Representative vehemently submitted that now judicial discipline demands that this order of the co-ordinate Bench that has confirmed disallowance by the learned Assessing Officer should be followed. 015. The learned Authorized Representative vehemently submitted that assessee has been allowed the deduction in all these earlier years. He submits that for A.Y. 2004-05 onwards till A.Y. 2015-16, the assessee is consistently allowed the deduction on the same set of facts. He submits that the assessee is following an Accounting standard and consistent policy of revenue recognition according to which the revenue from constriction contract is always recognized on the basis of Percentage Completion Method (PCM). If it is accepted that the contract will make a loss the estimated loss is immediately provided for in the books of account. This policy is backed by the principles of prudence in accounting. He also referred to page no.92 of the Paper Book wherein on account of 16 contracts, the foreseeable 11 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 losses of ₹4.22 crores were recognized. He explained the chart and the methodology of the provision. He submitted that these losses are neither contingent and nor merely a provision but accounted for on the basis of accepted accounting practices. He referred to the AS 7 issued by the Institute of Chartered Accountants of India on construction contracts and referred to the paragraph no.22 thereof to show that when the outcome of the construction contract can be estimated reliably, then revenue and their expenses thereof should be accounted at the stage of contract activity at the time of reporting date and if there is a loss then it should be recognized as an expense immediately. He further referred to paragraph no.31 of the AS. He also referred to paragraph no.35, wherein it is stated that where the total contract costs will probably exceed the total contract revenue expected loss should be recognized as an expense immediately. He further referred to the fact that these losses are also stated on page no.106 of the paper book. He also referred to the income computation and disclosure standard relating to construction contracts and submitted that it also provides that the contracts which have not been completed up to31st March 2016, shall be recognized as per the method of accounting followed. He further referred to several judicial precedents of the co-ordinate Benches and Hon'ble High Court to support his claim. He submitted that the co-ordinate Bench for A.Y. 2016-17 disagreed with the earlier year‟s orders of the co-ordinate Benches in assessees‟ own case should have referred the matter to the Special Bench if it wishes for any reason to deviate from the same. However, it has been decided against the assessee. He also referred to chart and submitted that the accepted additional cost provided in A.Y. 2017-18 is far less than the additional cost incurred actually by the assessee in subsequent A.Y. 2018-19. To precisely state that the provision of ₹84.52 crores for A.Y. 2017-18 culminated into actual additional cost of ₹119.48 crores thus, excess cost incurred for the provision in A.Y. 2018-19 is ₹34.96 crores. Thus, it is not the case that the claim of the assessee is not supported by robust working or followed by universally accepted account practices and principles. He submits that anyway for this year the decision of coordinate bench which decided issue against the assessee does not apply for the reason that assessee has submitted the various cost which are incurred subsequently by the assessee, which are much higher than the provision and such cost to the extent allowed in this year are not claimed in subsequent year. Therefore, he submits that earlier year decision may be followed, and claim is rightly allowed. He also referred to four volumes of paper books filed. 6.4. After the above detailed consideration, in appeal for Assessment Year 2017-18, the Coordinate Bench gave its observations and findings to distinguish the adverse findings in appeal for Assessment Year 2016- 17 which are extracted below for ready reference: “016. We have carefully considered the rival contentions and perused the orders of lower authorities. We have also considered the various decisions of coordinate benches in case of the assessee wherein identical claim of the assessee is allowed. We have also been informed that revenue is in appeal against that 12 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 decision of the coordinate bench before honorable High court and issue is admitted. We have also considered the decision of coordinate bench in case of assessee itself where in it held that earlier orders of coordinate bench are incorrect and claim of the assessee is not allowable. We find that in AY 2016-17 ITAT in ITA No. 642/MUM/2023 dated 26/07/2023 has confirmed disallowance of claim of the assessee for following reason :- i. Foreseeable loss in expenditure claimed as deduction u/s 37(1) of the Act which is yet to be incurred and not incurred during the year, therefore such expenses are not allowable in this year but allowable in the year in which it is incurred. ii. It followed deduction of coordinate bench in ITA No 1198/ M/2021 in case of Loreal India Limited holding that this is not allowable u/s 37(1) of The Act as unascertained liability, thus AS 7 issued by ICAI is also not allowable [ para no 6.4 where extract from that decision is quoted.] iii. Earlier decision of ITAT are not applicable as those deductions does not record a factual finding that whether such expenditure is ascertained liability [ Para 6.4 of the decision } 017. We find that issue in case of 1198/Mum/2021 in Loreal was disallowance of claim of Provision for expenses. The assessee had made “Provision for outstanding expenses” to the tune of Rs.96,28,68,265/- as per the requirement of mercantile system of accounting and claimed the same as deduction. Since it had not deducted tax at source from the above said provision claimed as deduction, the assessee voluntarily disallowed 30% of the above said claim u/s 40(a)(ia) of the Act. The AO treated the above said provision as „unascertained liability‟ and accordingly took the view that the same is not allowable as deduction. Thus, it was not the case of the deductibility of foreseeable losses but deduction of normal expenses. 018. Foreseeable loss is a claim u/s 28 as it is not a claim of expenses u/s 37 (1) of The Act. It is determined by looking at total revenue generated , less cost of expenses to be incurred for the contract and if there is a profit same is not recognized but if there is a loss , same is recognized as loss in the books as per principle of “prudence” in accounting. It is same method where the closing stock is valued at cost or market value whichever is less, when market value is higher than the actual cost , such profit is ignored and when market value is less than actual cost such losses are recognized immediately in books . This is also based on the principle of prudence in accounting. The prudence principle deviates from conventional accounting as it provides for all possible losses, but does not anticipate profits. It is allowable u/s 28 itself. In this case the assessee has not claimed the expenditure u/s 37 (1) of the Act which is evident from the chart extracted in ITAT order for AY 2016-17 at page no 9 in para no 6.2 of that order. 019. Undisputedly Accounting standard 7 applies to the assessee, in para no 21 it provides that When the outcome of a construction contract can be estimated reliably, contract revenue and contract costs associated with the construction contract should be recognized as revenue and expenses respectively by reference to the stage of completion of the contract activity at the reporting date. An 13 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 expected loss on the construction contract should be recognized as an expense immediately in accordance with paragraph 35. 020. Further in Para no 35 and 36 it provides for „Recognition of Expected Losses‟ stating that When it is probable that total contract costs will exceed total contract revenue, the expected loss should be recognised as an expense immediately. 021. Further this issue is decided in favour of the assessee by coordinate benches since AY 2004-05 and matter is pending before honourable high court, and in immediately subsequent year, assessee has shown that it has incurred higher expenses then the loss claimed in this year. It is not the case of double deduction of expenses in the guise of loss. Off course, if later on the losses which is provided in this year reduces assessee has to apply para no 37 of the As which provides that when the percentage of completion method is applied on a cumulative basis in each accounting period to the current estimates of contract revenue and contract costs. Therefore, the effect of a change in the estimate of contract revenue or contract costs, or the effect of a change in the estimate of the outcome of a contract, is accounted for as a change in accounting estimate (see Accounting Standard (AS) 5, Net Profit or Loss for the Period, Prior Period Items and Changes in Accounting Policies). The changed estimates are used in determination of the amount of revenue and expenses recognized in the statement of profit and loss in the period in which the change is made and in subsequent periods. 022. Determination of profit based on the accounting standard where there is no contrary provision in the Income tax Act , requires to be accepted, as accounting standards are based on sound principle of Accounting and determines real income. 023. Determination of Income as per As-7 „ Construction Contract' is also judicially accepted in Panchsheel Colonizers (P.) Ltd.[2019] 111 taxmann.com 460 (SC) By Honourable Supreme court . 024. In earlier decision of the ITAT in assessee‟s own case are also based on the above concept and we have drawn above analogy also from those decisions and as facts are different from Ay 2016-17, and as the Honourable High court has also admitted the issue on appeal of Revenue in earlier years, we hold that assessee is entitles to expected loss provided in the manner explained by the Accounting Standard 7 “ Construction Contracts‟ Issued by ICAI. Thus, on principle assessee is entitled to the same.” 6.5. Thus, the Coordinate Bench held that per se claim of the assessee towards foreseeable losses is an allowable expenditure. However, it restored the issue before the file of ld. Assessing Officer for the purpose of verification of the claim to quantify it for the purpose of allowing it. 14 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 The direction so given for verification and to arrive at quantification is extracted below: “025. However now the issue of quantification arises, on perusal of orders of lower authorities, we do not find that any of the authorities have examined quantification of the claim of the assessee. Assessee has submitted a chart before us where in the loss is stated to be quantified. However, we do not find any back up documents produced before us, so that we can quantify the same. In absence of such complete information available with us, we restore the issue before the ld. AO to grant deduction on the above issue by verifying the claim of the assessee with supporting documents. Assessee is directed to quantify such claim and substantiate before the ld. AO , he may verify the same and allow the claim in accordance with the law. 026. Accordingly Ground no 2 of the appeal is dismissed and for verification of quantum restored to the file of The Ld. AO. 027. In the result, appeal of the ld. AO is dismissed subject to quantification of loss in Ground 2.” 6.6. Furthermore, we take note of another decision of Coordinate Bench of Chennai in the case of International Seaport Regime (P) Ltd. vs. DCIT [2024] 166 taxmann.com 691(Chennai), which held that provision for expected contract losses computed using Percentage of Completion Method (POCM) is allowable deduction u/s.37(1), if supported by scientific basis and AS-7. 7. The issue before us is on identical fact pattern with no change in applicable law. From the perusal of the impugned assessment order, we note that submissions made by the assessee on this issue are reproduced by the ld. Assessing Officer. It is noted that assessee follows percentage of completion method (PoCM) for the purpose of accounting which has been consistently followed year after year. Thus, following the percentage of completion method, assessee submitted the cumulative revenue recognised and cost incurred upto 31.03.2015 in respect of the loss making projects which is tabulated as under: 15 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 Particulars Amounts (in lacs) Contract Value A 1,53,202.02 Cumulative Cost incurred till 31.03.2015 B 1,51,756.85 Cumulative Revenue recognized 31.03.2015 C 1,37,366.29 Cumulative Loss Recognized till 31.03.2015 B-C 14,390.54 7.1. From the above working, it is observed that total loss recognised till 31.03.2015 is of Rs.14,390.54 lakhs which includes foreseeable loss of Rs.1,003.21 lakhs as per AS-7. Assessee had reported cumulative foreseeable loss till 31.03.2014 amounting to Rs.624.53 lakhs. Thus, the differential amount of Rs. 378.68 lakhs (1,003.21- 624.53) was charged to profit and loss account for the year under consideration as foreseeable loss. In this respect, claim of the assessee is that it has already incurred actual cost on the project which it is not able to recover from its client and hence recognised the same as loss of the project. In terms of requirement of AS-7, this loss is required to be disclosed separately as “foreseeable loss on contract” in the profit and loss account. Accordingly, assessee submitted that this loss is not towards any provision for future cost to be incurred but it is the excess of actual cost incurred over the project revenue. Hence, it is not a provision for any unascertained liability but is the actual cost incurred by the assessee till 31.03.2015. This aspect has been elaborately dealt by the Coordinate Bench in the decision for Assessment Year 2017-18 in para 18 which is already reproduced above. 7.2. It is to be noted that on item of loss or expenditure incidental to business may be deducted in computing profits and gains even if it does 16 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 not fall, within any of sections 30 to 36, , for the tax is on profits and gains computed on ordinary commercial principles. In order to arrive at profits and gains, account must necessarily be taken of all losses incurred by the assessee. Any loss which occurs in carrying on the business and is related to the business operation is entitled to be deducted to arrive at profits and gains of the business u/s.28 of the Act. Section 28 of the Act imposes a charge on the profits or gains of business or profession. The expression \"Profits and gains of business or profession\" is to be understood in its ordinary commercial meaning and the same does not mean total receipts. What is to be brought to tax is the net amount earned by carrying on a profession or a business which necessarily requires deducting expenses and losses incurred in carrying on business or profession. 7.3. We also note that sections 145 and 145A of the Act provides for computation of income under the head 'profits and gains from business or profession' and 'income from other sources' by applying the \"Income Computation and Disclosure Standards (ICDS)'. Since no specific ICDS has been notified for the year under consideration for real estate developers, revenue and cost recognition is governed by the applicable accounting standards. In the matching concept, revenue and income earned during an accounting period is compared with the expenses incurred during the same period. This matching concept has been recognized by the Hon'ble Supreme Court in the case of Taparia Tools Ltd. v. CIT (2015) 55 taxmann.com 361. In view of settled legal position, provisions of section 145 being mandatory in nature, ld. Assessing Officer is bound to assess income of the assessee in accordance with the method of accounting regularly employed except when the case falls in section 145(3) for which the Assessing Officer is required to record 17 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 satisfaction as contemplated in the said section. In the instant case, assessee maintains accounts on mercantile basis by following PoCM. The said method has been consistently employed by the assessee, fact of which is not in dispute. 7.4. On these observations, since the impugned assessment order has already been held to be bad in law on the legal issue, for the purpose of adjudicating on the merit of the case, we respectfully follow the findings arrived at by the Coordinate Bench in assessee’s own case for Assessment Year 2017-18(supra). 7.5. Considering the facts on records, elaborate discussions made above, both on fact and applicable law and respectfully following the decision of Coordinate Bench in assessee’s own case, as well as in the case of International Seaport Regime Pvt. Ltd. (supra), it is held that assessee is entitled to the claim of foreseeable loss provided in accordance with the AS-7, issued by ICAI. Accordingly, disallowance made by the ld. Assessing Officer is deleted. Ground no.2 raised by the assessee is allowed. 7.6. Since the issue involved in appeal for ITD ITD Cem Join Venture in ITA No.4620/Mum/2024 for the same Assessment Year is identical, our observations and findings above, apply mutatis mutandis. Accordingly, disallowance made in this case is also deleted and ground so raised is allowed. 8. We now take up appeal on merits in the case of ITD Cementation India Ltd. for Assessment Year 2016-17 in ITA No.4568/Mum/2024, whereby addition is made on account of provision of foreseeable loss 18 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 u/s. 115JB while computing book profit to calculate Minimum Alternate Tax (MAT). In this respect, facts are that assessee claimed foreseeable loss of Rs.2,45,07,479/- in accordance with AS-7 applicable to the assessee. Re-assessment proceedings were initiated and concluded by adding this amount of foreseeable loss to the book profit u/s. 115JB which was sustained by ld. CIT(A). Contention of the assessee is that claim of foreseeable loss is not an item to be added to the book profit. According to the assessee, any provision for liability is to be added to the book profit u/s.115JB. According to it, foreseeable loss is the loss which assessee has actually incurred and is not a provision for any liability. Further, Section 115JB provides for adding the loss to the book profit which is the loss of subsidiary. This is not so in the case of assessee. We note that clause (c) of Explanation 1 to section 115JB which provides that amount set aside to provisions made for meeting liabilities, other than ascertained liabilities are to be added for computing book profit under the said section. Thus, what can be added is provisions for unascertained liabilities, i.e., liabilities contingent in nature. 8.1. In the present case, ld. Assessing Officer has treated the claim of the assessee towards foreseeable losses as unascertained liability. This issue has already been dealt by us in the above paragraphs while dealing with ground no.2 on the claim of provision for foreseeable losses which has been held to be a deduction of normal expense u/s.28 of the Act. Assessee follows mercantile system of accounting and has made the said claim in terms of generally accepted accounting practices by following the requirements of AS-7, which also has been elaborately discussed above. Accordingly, in the given set of facts and detailed discussions made herein above, we find that provision for foreseeable 19 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 losses cannot be added within the provisions contained in Section 115JB for computing book profit. Accordingly, the addition so made by the ld. Assessing Officer is deleted. Ground raised in this respect is allowed. 9. On merit, we now take up ground no.3 in the case of ITD Cementation India Ltd. for Assessment Year 2015-16 in ITA No.4539/Mum/2024 by the assessee, whereby disallowance sustained by ld. CIT(A) by adopting the rate of 2.5% on account of contingency expenses amounting to Rs.36,90,000/- is challenged. This identical issue is also contested in Assessment Year 2016-17 in ITA No.4568/Mum/2024 and also in the case of ITD ITD Cem Joint Venture for Assessment Year 2015-16 in ITA No.4620/Mum/2024 with varying amounts of disallowance so sustained. 9.1. As a cross appeal, Revenue has also challenged the relief granted by ld. CIT(A) to the extent of 97.5% of these very contingency expenses in all the three aforesaid appeals. The issue is common in all these appeals, both by assessee and Department and therefore, we take up these together by considering facts from ITA No.4539/Mum/2024 for Assessment Year 2015-16 in case of ITD Cementation India Ltd. 10. Brief facts specific to the aforesaid issue are that ld. Assessing Officer made addition disallowing contingency expenses of Rs. 14,76,00,000/-.Ld. CIT(A) restricted the disallowance to 2.5% (on adhoc basis) of the total expenditure which amounts to Rs.36,90,000/-. During the course of survey action carried out on the group on 26.10.2021 where certain MIS reports (CTC reports) were impounded by the Income-tax Authorities. The Cost to Complete Reports (CTC 20 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 reports) were the internal reports prepared by the project head, having no accounting background, to report the progress of the project to the management team of the company. These CTC Reports contain expenditure in the head Contingency expenses which demonstrates the expenses overshot than the budgeted figure for the given period. However, such expenses are recorded under respective heads in the books of accounts and not as contingency expenses. The said exercise of preparing CTC report is carried out periodically by the project head to evaluate progress of the projects and cost variance to ascertain whether cost is as per budget or is overshot and to understand the profitability of the project. The total cost mentioned as per these CTC sheets, which includes the figure of contingency expenses, matches with the total cost of the project as per books of accounts. To demonstrate the same, ld. Counsel for the assessee demonstrated figures relating to Project Pune Satara - Construction of 4/6 laning of Pune Satara Toll Road Project -Package. Total contingency expenses for the year amounted to Rs. 14.76 crores (details are mentioned at Page No. 3 of PB). The contingency expenses relating to Pune Satara project (mentioned at sr no 1 of Page 3 of PB) is Rs. 164.99 lacs. The break of the same is as under: Particulars Amounts (In Lacs) Paper Boom (PB) Page No. Contingency for April 2015 348.30 6 Contingency for April 2014 183.31 8 Incremental Contingency Expense 164.99 10.1. Total expenditure for April 2015 as per CTC sheet is Rs. 21,628.64 lacs and that for April 2014 as per the CTC Sheet is Rs. 15,205.44 lacs which matches with the total figures as per books of 21 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 accounts. The said fact is duly recorded by the ld. Assessing Officer in his assessment order at Page No. 15 second last paragraph, the relevant extract of the same is reproduced below: \"Although the total cost figure in the CTC report matches the total cost figure of the books of account, the cost booked under each head is different in the CTC report and the books of account........... (emphasis supplied by underlining) 10.2. Despite the above factual observation, ld. Assessing Officer concluded that the said contingency expense amounting to Rs. 14,76,00,000/- are not recorded in the books of accounts. Further, ld. CIT(A) restricted the said addition to adhoc 2.5% of the contingency expenses disallowed by the Ld. AO which amounts to Rs. 36,90,000/-. 10.3. Ld. Counsel pointed out that the said issue is covered by the order of Coordinate Bench in case of sister concern of the assessee, i.e., ITD Cem India JV for AY 2016-17 (ITA No. 4556/Mum/2024), 2017-18, 2018-19 and 2022-23 dated 22-10-2024 and in case of ITD ITD Cem JV for AY 2016-17 (ITA No. 4618/Mum/2024) dated 25-10-2024. In these orders, the Coordinate Bench deleted the entire ad hoc addition of 2.5% which was sustained by the ld. CIT(A) based on similar CTC reports relating to respective entities, impounded during the course of survey. Relevant extract of the order passed in case of ITD Cem India JV in ITA No. 4556/Mum/2024, dated 22.10.2024, is reproduced below for ready reference: \"10. The entire addition revolves around the contingency expenditure recorded in the CTC report. As mentioned above, the contingency expenditure is mentioned at the time of preparation of the budget but when the actual figures are known, the same are recorded in the books of accounts. Therefore, it cannot be said that that the contingency figure are not recorded in the books of accounts. In fact, the 22 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 AO himself admitted this fact at par of his order where he has categorically accepted that the total cost figure in the CTC report matches the total cost figure of the books of accounts. 11. Since the figure of contingency has been recorded against the figure of total expenditure incurred, it is illogical to assume that the assessee has booked bogus expenditure and generated cash outflow from it. Moreover, the impounded material shows the expenditure on mercantile basis and no cash expenditure, therefore, the presumption of the AD that the assessee has generated cash out of bogus expenditure is without any basis …… 14. The allegation that the assessee has not followed the Standard Operating Procedure (SOP) is not relevant as long as the impugned expenditure are found recorded in the regular books of account maintained by the assessee. 15. Though the Id. First Appellate Authority has admitted that the entire expenses cannot be disallowed yet, he himself went on to estimate the disallowance which is again not a proper procedure. Once the expenses have been found to be fully recorded in the books of accounts, the same cannot be disallowed only on the whims and surmises of the revenue authorities. 16. Considering in totality the facts of the case in hand in light of the documentary evidence referred during the course of proceedings, we do not find any merit in the impugned additions. We direct the AD to delete the additions from the captioned appeals\" 10.4. It was thus, submitted before us to delete the addition of contingency expenses amounting to Rs. 36,90,000/-. Ld. DR in his arguments stated that expenses recorded by the assessee under the head contingency expenses were bogus expenses to generate cash. In his arguments he stated that Standard Operating Procedure (SOP) was not followed by the assessee in relation to certain expenses and summons u/s. 133(6) of the Act were issued to certain contractors which were not complied. Ld. Counsel submitted that ld. Assessing Officer has not shown any correlation between contingency expenses mentioned in the CTC report and parties to whom 133(6) notices were issued. Neither the addition is made on the basis of parties to whom notices u/s.133(6) were issued. It was also submitted that all necessary documents relating to parties to whom 133(6) were issued by the ld. Assessing Officer were duly submitted by the assessee during 23 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 assessment proceeding and is duly recorded by the ld. Assessing Officer in his assessment order. It was further submitted that non-compliance of SOP which in fact is an internal check of the appellant cannot be the basis for disallowance of expenses incurred and claimed by the assessee. 11. Following the rule of consistency, since there is no change in factual matrix and the issue has already been elaborately dealt by the Coordinate Bench, as reproduced above, respectfully following the same, we delete the addition so sustained by ld. CIT(A). Since the issue has already been held in favour of the assessee in respect of disallowance of contingency expenses as discussed above, ground raised by the Revenue in its appeal, contesting for the balance 97.5% of the same expenses for which relief was granted by ld. CIT(A) is rendered infructuous. Accordingly ground so raised by Revenue is dismissed. Our above observations and findings apply mutatis mutandis to other two appeals in ITA Nos. 4568/Mum/2024 and 5234/Mum/2024 as well as ITA Nos. 4620/Mum/2024 and 5232/Mum/2024. 12. We now take up appeal in the case of ITD Cementation India Ltd., for Assessment Year 2019-20 in ITA No.4532/Mum/2024 by the assessee. In this case also, re-opening proceedings u/s.148 are challenged by the assessee. Facts of the case are that re-assessment proceedings were initiated by issuing notice u/s.148A(b), dated 17.02.2023 for which the reasons of re-opening are stated as under: \"...as AGV consultant has not given any consultancy services to the assessee and therefore expenses claimed by the assessee for consultancy services paid to M/s AGV Consultants is not genuine expenses. Thus, expenses of Rs. 38,25,000/- paid towards Management Consultancy Fee to M/s AGV Consultants is not allowable and taxable in the hands of M/s ITD Cementation India Ltd. for FY 2018-19 and hence income amounting to Rs. 38,25,000/- has escaped assessment in the hands of the assessee... 24 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 (emphasis supplied by underlining) 12.1. From the perusal of the above reasons for re-opening recorded by the ld. Assessing Officer, it is pointed out that the information available is only in respect of addition of management consultancy fees of Rs.38,25,000/- paid to AGV Consultants. Re-assessment proceedings were completed by passing the impugned order, wherein addition of Rs.38,25,000/- was made towards management consultancy fees relating to AGV consultants and making further disallowance claim of deduction u/s.80IA amounting to Rs.148,57,76,785/-. On appeal before ld. CIT(A), addition of Rs.38,25,000/- towards management consultancy fees relating to AGV Consultants was deleted. Disallowance of claim of deduction made u/s.80IA was sustained. Assessee is in appeal before the Tribunal on the disallowance of claim of deduction u/s.80IA, however, Department is not in appeal against the deletion of addition in respect of management consultancy fees related to AGV Consultants. 12.2. On this fact, contention of the assessee is that since the addition made by ld. Assessing Officer based on information which led to re- assessment proceedings for issuing notice u/s. 148A(b) has been deleted by the ld. CIT(A) and Department is not contesting the same before the Tribunal, the said information available with the ld. Assessing Officer stands incorrect for the purpose of passing order u/s.148A(d) and issuing notice u/s.148 thereafter, vitiating the entire re-opening proceedings as well as the assessment order passed thereon. On a specific query by the Bench to this fact, nothing cogent was placed on record to counter the contentions made by the assessee. In the given set of facts and circumstances and nothing contrary brought on record, 25 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 we find that the basis for initiating the re-assessment proceedings was the information on claim of management consultancy fees as an expense relating to AGV Consultants which was held by ld. Assessing Officer as not allowable and taxable in the hands of the assessee. However, the said addition stands deleted by the order of ld. CIT(A) and has attained finality in absence of Department not coming in appeal before the Tribunal. 12.3. We find that in the present facts and circumstances, the legal maxim ‘sublato fundamento cadit opus’ is applicable, meaning thereby – ‘a foundation being removed, the superstructure falls’. Once the basis of a proceeding is gone, the action taken thereon would fall to the ground. Thus, in the absence of such foundation, exercise of reopening the case and making the reassessment stands vitiated. In light of these facts and discussion made above, we are in agreement with the contention made by the assessee and accordingly, hold that the re- opening proceedings stands vitiated, leading the impugned order also as bad in law. 13. On the merits of the case, in respect of claim of deduction u/s. 80IA, it is noted that assessee made a claim of Rs. 192,90,10,840/-. Ld. Assessing Officer disallowed the deduction to the tune of Rs.148,57,76,755/-, alleging the contracts to be awarded by non- government entities. In this respect, at the outset, it was submitted that issue of allowability of claim of deduction u/s.80IA arising out of the same contract has been set aside in assessee’s own case for Assessment Year 2017-18 and 2018-19 by the order passed by Coordinate Bench of ITAT, Mumbai in ITA Nos. 1400/Mum/2023 for Assessment Year 2017- 18, dated 16.05.2024 and 1401/Mum/2023 for Assessment Year 2018- 26 ITA Nos. 4539/Mum/2024 and ors. ITD Cementa\u001bon India Ltd. and ITD ITD Cem Joint Venture, AYs 2015-16, 2016-17 and 2019-20 19, dated 22.02.2024. Since, we have already allowed the ground of the assessee on the legal issue, relating to re-opening proceedings and holding the impugned order as bad in law, issue on the merits of the case are rendered academic and therefore not adjudicated upon. 14. In the result, appeals of both, assessee and revenue are decided as per the table below: Sr. No. ITA No. Assessment Year Appeal by Result of the appeal 1. 4539/MUM/2024 2015-16 Assessee Allowed 2. 4568/MUM/2024 2016-17 Assessee Allowed 3. 4532/MUM/2024 2019-20 Assessee Allowed 4. 5235/MUM/2024 2015-16 Revenue Dismissed 5. 5234/MUM/2024 2016-17 Revenue Dismissed 6. 4620/MUM/2024 2015-16 Assessee Allowed 7. 5232/MUM/2024 2015-16 Revenue Dismissed Order is pronounced in the open court on 17 March, 2025 Sd/- Sd/- (Amit Shukla) (Girish Agrawal) Judicial Member Accountant Member Dated: 17 March, 2025 MP, Sr.P.S. Copy to : 1 The Appellant 2 The Respondent 3 DR, ITAT, Mumbai 4 5 Guard File CIT BY ORDER, (Dy./Asstt.Registrar) ITAT, Mumbai "