APNA ORGANICS (P) LTD, MUMBAI V. ASST CIT 8(1),

ITSSA 26/MUM/2012

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 1400 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-05-2015
• Assessment Year: misc
• Appeal Filed On: 20-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Recovery proceedings; Ignorance of law
• Section: 263; 154

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER IT(SS)A NO.26/MUM/2012 BLOCK PERIOD-1989-90 TO 2000-01 M/S APNA ORGANICS (P) LTD. C/O-SHANKARLAL JAIN & ASSOCIATES, CHARTERED ACCOUNTANTS, 12, ENGINEER BUILDING, 265, PRINCESS STREET, MUMBAI-400002 / VS. ACIT-8(1), 2 ND FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( !' # /ASSESSEE) ( $ / REVENUE) PAN. NO. AAACA9654R % $& ' # ( / DATE OF HEARING : 09/12/2015 ' # ( / DATE OF ORDER: 23/12/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 01/08/2012 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND RAISED IN THIS APPEAL PERTAINS TO HOLDI NG THE ORDER PASSED U/S 154 OF THE ACT AS VALID WITHOUT APPRECIA TING THE !' # ! / ASSESSEE BY SHRI S.L. JAIN $ ! / REVENUE BY SHRI B.JAYA KUMAR M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 2 FACT THAT THE NOTICE ISSUED U/S 158BD WAS HELD TO B E INVALID BY THE TRIBUNAL AND FURTHER CONFIRMED BY THE HONBL E HIGH COURT, THEREFORE, IT WAS A DEBATABLE ISSUE WHICH CA NNOT BE RECTIFIED U/S 154 OF THE INCOME TAX ACT,1961(HEREIN AFTER THE ACT). 2. DURING HEARING OF THIS APPEAL, THE LD. COUNSEL F OR THE ASSESSEE, SHRI S.L. JAIN, ADVANCED ARGUMENTS, WHICH IS IDENTICAL TO THE GROUND RAISED BY PLACING RELIANCE UPON THE DECISION FROM HONBLE KARNATAKA HIGH COURT IN K. NA GESH VS ACIT (2015) 57 TAXMAN.COM 439 (KARN.). ON THE OTHER HAND, THE LD. DR, SHRI B.JAYA KUMAR, DEFENDED THE CONCLUS ION ARRIVED AT IN THE IMPUGNED ORDER BY CONTENDING THAT WHILE PASSING THE ORDER U/S 154 OF THE ACT, THE ASSESSING OFFICER DID NOT CONSIDER SECTION 240 OF THE ACT WHICH AMOUNTS T O MISTAKE APPARENT FROM RECORD. THE IMPUGNED ORDER WAS DEFEND ED. 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT A SEARCH ACTION WAS CARRIED OUT AT THE PRE MISES OF SHRI SANTOSH SHRAFF AND SURESH SHRAFF ON 24/08/1998 WHICH WAS CONCLUDED IN 23/10/ 1998 AND INTIMATION WAS ISS UED U/S 158BD BY THE ACIT ON 04/10/2005 AFTER A LONG LAPSE. SUBSEQUENTLY, ASSESSMENT U/S 158BD WAS COMPLETED ON 25/01/2007, ACCEPTING THE UNDISCLOSED INCOME OF RS.22,40,947/-, AS DECLARED BY THE ASSESSEE IN THE BLOCK RETURN. THE ASSESSEE FILED APPEAL BEFORE THE LD. C OMMISSIONER OF INCOME TAX (APPEALS), WHO CONFIRMED THE ACTION O F THE M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 3 ASSESSING OFFICER. THEREAFTER, THE ASSESSEE WENT IN APPEAL BEFORE THE TRIBUNAL, WHEREIN, VIDE ORDER DATED 21/1 2/2011, WHEREIN, FOLLOWING THE DECISION OF THE SPECIAL BENC H IN MANOJ AGRAWAL VS DCIT (133 ITD 377) (DEL.)(SB), AUTO FINA NCE PVT. LTD. 300 ITR 83 (DEL.) AND MANISH MAHESHWARI VS ACI T (289 ITR 341)(SC). THE ASSESSMENT MADE U/S 158BD WAS HEL D TO BE BAD IN LAW AS THE NOTICE ISSUED U/S 158BD WAS BEYON D PRESCRIBED LIMIT AND FURTHER WITHOUT RECORDING THE SATISFACTION BY THE ASSESSING OFFICER, DURING ASSESSMENT OF THE PERSON SEARCHED. WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL, THE LD. ASSESSING OFFICER ON 05/03/2012, ISSUED REFUND OF RS.14,11,796/-. THE LD. ASSESSING OFFICER WAS OF TH E VIEW THAT SINCE THE ASSESSED INCOME CANNOT BE NIL I.E. BELOW THE INCOME OF RS.22,40,947/-, DECLARED BY THE ASSESSEE IN THE BLOCK RETURN, THE ASSESSEE IS NOT ENTITLED FOR REFUND OF RS.14,11,796/-, VOLUNTARILY RETURNED BY THE ASSESSE E, IN VIEW OF THE PROVISION OF SECTION 240 OF THE ACT. THE AS SESSING OFFICER WAS OF THE VIEW THAT THIS IS A MISTAKE APPA RENT FROM RECORD, THEREFORE, HE ISSUED NOTICE U/S 154 DATED 03/05/2012. THE ASSESSEE FILED OBJECTION VIDE LETT ER DATED 07/05/2012 BY EXPLAINING THAT THE PROVISIONS OF SEC TION 240 ARE NOT APPLICABLE AND FURTHER SECTION 237 ENTITLES THE ASSESSEE FOR REFUND. THIS PLEA OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER, WHO RAISED A DEM AND FOR TAX IN THE INCOME RETURNED. M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 4 3.2. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INC OME TAX (APPEALS),THE STAND OF THE ASSESSING OFFICER WA S AFFIRMED, AGAINST WHICH, THE ASSESSEE IS IN FURTHER APPEAL BE FORE THIS TRIBUNAL. 3.3. UNDER THE AFOREMENTIONED FACTS, NOW QUESTION ARISES, WHETHER THE ISSUE IS DEBATABLE AND, IF YES, WHETHER THE LD. ASSESSING OFFICER IS JUSTIFIED TO MAKE RECTIFIC ATION U/S 154 OF THE ACT. BEFORE ADVERTING FURTHER, WE NOTE THAT THE HONBLE APEX COURT IN CIT VS SHELLY PRODUCTS (261 ITR 367)( SC), WHILE DEALING WITH THE PROVISIONS OF SECTION 240 OF THE A CT, HELD THAT TAXES PAID ON VOLUNTARILY FILED IN RETURN OF INCOME WILL NOT BE REFUNDABLE EVEN IF THE ASSESSMENT STAND CANCELED. HOWEVER, THE HONBLE DELHI HIGH COURT IN JANKI EXPORT INTERN ATIONAL VS UNION OF INDIA 193 CTR 730 (DEL.), HELD THAT IN PRO CEEDING U/S 158BD OF THE ACT, THE ASSESSEE MUST BE INFORM ABOUT THE SATISFACTION OF THE ASSESSING OFFICER AND THE ASSES SEE MUST BE GIVEN AN OPPORTUNITY TO OBJECT THE SAME. IT IS NOT EWORTHY THAT ANNULMENT OF ASSESSMENT BY THE TRIBUNAL WAS AFFIRME D BY HONBLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 07/11/2014 (ITA NO.1183 OF 2012), WHEREIN, AGAIN, T HE DECISION FROM HONBLE APEX COURT IN THE CASE OF MAN ISH MAHESHWARI VS ACIT (SUPRA) WAS DISCUSSED TO THE EFF ECT THAT NOTICE ISSUED AFTER A LAPSE OF UNREASONABLE TIME WO ULD RESULT IN ANNULMENT OF PROCEEDINGS. THE HONBLE KARNATAKA HIGH COURT IN A LATEST DECISION DATED 20/04/2015 IN K. N AGESH (SUPRA) DULY DELIBERATED UPON SECTION 240 OF THE AC T R.W.S 139 M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 5 OF THE ACT BY DISCUSSING THE DECISION IN CIT VS SHE LLY PRODUCTS (SUPRA) HELD THAT THE HONBLE APEX COURT, IN THAT C ASE (SHELLY PRODUCTS), WAS CONSIDERING THE CASE OF A VALID RETU RN AND HELD THAT, EVEN IF, TAX IS PAID/FOUND TO BE LESS THAN PA YABLE, NO FURTHER DEMAND CAN BE RAISED FOR RECOVERY OF THE BA LANCE AMOUNT, SINCE THE FRESH ASSESSMENT WAS BARRED BY TI ME. THE HONBLE COURT FURTHER HELD THAT, IF THERE IS NO AUT HORITY WITH THE ASSESSING OFFICER TO PROCEED ON THE INVALID RET URN, THEN WHAT REMAINS THE ORIGINAL RETURN AND THE EXCESS TAX ES PAID BY THE ASSESSEE HAS TO BE REFUNDED TO THE ASSESSEE OTH ERWISE IT WOULD OFFEND ARTICLE-265 OF THE CONSTITUTION. IT IS ALSO NOTED THAT THE HONBLE HIGH COURT ALSO CONSIDERED THE DEC ISION FROM HONBLE JURISDICTIONAL HIGH COURT IN NIRMALA L MEHT A (2004) 269 ITR 1 (BOM.), S.R. KOSHTI VS CIT (2005) 276 ITR 165 (GUJ.), SARAYA SUGAR MILLS LTD. VS ITO (2226 ITR 47 5 (ALL), AJIT JAIN VS UOI 242 ITR 302 (DEL.), NDMC VS KALU RAM AI R 1976 SC 1637 (PARA-13), ETC. AND THEN REACHED TO A PARTI CULAR CONCLUSION. 3.4. CONSIDERING THE SCHEME OF THE ACT, THE WORD R ETURNED, USED IN SECTION 240 OF THE ACT, SHOULD BE UNDERSTOO D AS A RETURN IN TERMS OF SECTION 139 OF THE ACT. IF THE R ETURN FURNISHED BY THE ASSESSEE IS NOT INCONFORMITY WITH SECTION 139, IT CEASES TO BE A RETURN UNDER THE ACT. IT MEA NS THE RETURN MEANS A LEGAL/VALID RETURN. NO TAX SHALL BE LEVIED OR COLLECTED EXCEPT WITH THE AUTHORITY OF LAW AS IS MA NDATED BY ARTICLE 265 OF THE CONSTITUTION OF INDIA. IF THE RE TURN IS ITSELF M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 6 DECLARED TO BE INVALID, SUCH RETURN, DOES NOT EXIST I.E. IT IS VOID AB-INITIO AND NON EST IN THE EYES OF LAW WHICH HAS NO LEGAL SANCTITY. FOR WHATEVER REASONS, IF THE AUTHORITIES WERE BARRED FROM FRAMING THE ASSESSMENT THEN THE DEPARTMENT IS PRECLUDED FROM WITHHOLDING THE TAX/INTEREST PAID BY THE ASSESSEE. EVEN ASSUMING, THE ASSESSEE ADMITTED CERT AIN TAXES IN AN INVALID RETURN, SUCH ADMITTED TAX, CANNOT BE RETAINED BY THE DEPARTMENT UNLESS MANDATED BY LAW. IN THE ABSEN CE OF ANY SUCH PROVISION, WITHHOLDING OF TAXES IN AN INVA LID RETURN/ASSESSMENT, AMOUNTS TO TAX COLLECTED WITHOUT AUTHORITY OF LAW, OFFENDING ARTICLE 265 OF THE CONS TITUTION. IDENTICAL RATIO WAS LAID DOWN BY HONBLE JURISDICTI ONAL HIGH COURT IN NIRMALA L. MEHTA (SUPRA) BY HOLDING THAT T HERE CANNOT BE ANY ESTOPPELS AGAINST THE STATUTE AS ARTI CLE 265 OF THE CONSTITUTION IN UNMISTAKABLE TERMS PROVIDES THA T NO TAX SHALL BE LEVIED OR COLLECTED EXCEPT BY AUTHORITY OF LAW. 3.5. THE SCOPE AND THE EFFECT OF AMENDMENTS MADE B Y THE ACT IN SECTION 240 OF THE ACT HAVE BEEN ELABORA TED IN DEPARTMENTAL CIRCULAR NO.551 DATED 23/01/1990. THE PHRASE OTHER PROCEEDINGS USED IN SECTION 240 IS OF WIDE AMPLITUDE AND WOULD COVER ANY ORDER PASSED IN PROCEEDINGS INC LUDING ORDER U/S 154 (RECTIFICATION PROCEEDINGS) ORDER PAS SED BY HONBLE HIGH COURT /SUPREME COURT U/S 260 (IN REFER ENCE) AND BY THE COMMISSIONER U/S 263 OR U/S 264 OR AN APPLICATION 273A OF THE ACT ATMARAM J HATHIWALA VS ITO (209 ITR 456) (GUJ.). THE RATIO LAID DOWN IN RAMCHANDRA AGRAWAL M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 7 VS CBDT 104 TAXMAN 261 (DEL.), SANDVIK ASIA LTD. VS CIT (280 ITR 643) (SC), K SURESH KAMAT VS ACIT (2010) 322 IT R 581 (KARN.), CHIEF CIT VS SAJAN VERGHIS MATHEW 345 ITR 489 (MAD.), AND HIND SAMACHAR LTD. VS UOI 330 ITR 266 ( P & H) SUPPORTS OUR VIEW. FURTHER THE RATIO LAID DOWN IN A NNAPURNA PHARMA VS DCIT 138 CTR (BOM) 133, CIT VS S.D. MATKA R (1997) 143 CTR (MP) 288, 289, GULABCHAND MOTILAL VS CIT 205 ITR 62 (MP) SUPPORTS OUR VIEW. 3.6. WE ARE CONSCIOUS THAT THE DIFFERENT VIEW IN THE MATTER, I.E., THAN THAT EXPRESSED BY THE HONBLE KA RNATAKA HIGH COURT IN K. NAGESH VS. ACIT [2015] 57 TAXMANN.COM 439 (KAR), RENDERED CONSIDERING THE DECISION IN THE CAS E OF CIT VS. SHELLY PRODUCTS [2003] 261 ITR 367 (SC), IS POSSIBLE, PERHAPS EQUALLY, QUA SECTION 240 OF THE ACT, READING AS UNDER, I.E., THA T THE WORD RETURNED OCCURRING IN PROVISO (B) TO SECTION 240 CONNOTES, AND IS TO BE UNDERSTOOD AS, ADMITTED OR UNDISPUTED: 240. REFUND ON APPEAL, ETC.- WHERE, AS A RESULT OF ANY ORDER PASSED IN APPEAL OR OTHER PROCEEDING UNDER THIS ACT, REFUND OF ANY AMOUNT BECOMES DUE TO THE ASSESSEE, THE ASSESSING OFFICER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, REFUND THE AMOUNT TO THE ASSESSEE WITHOUT HIS HAVIN G TO MAKE ANY CLAIM IN THAT BEHALF: PROVIDED THAT WHERE, BY THE ORDER AFORESAID, (A) AN ASSESSMENT IS SET ASIDE OR CANCELLED AND AN ORDER OF FRESH ASSESSMENT IS DIRECTED TO BE MADE, T HE REFUND, IF ANY, SHALL BECOME DUE ONLY ON THE MAKING OF SUCH FRESH ASSESSMENT; M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 8 (B) THE ASSESSMENT IS ANNULLED, THE REFUND SHALL BECOME DUE ONLY OF THE AMOUNT, IF ANY, OF THE TAX P AID IN EXCESS OF THE TAX CHARGEABLE ON THE TOTAL INCOME RETURNED BY THE ASSESSEE. THIS IS AS THE CHARGE U/S.4 OF THE ACT IS ATTRACTED THE MOMENT THE INCOME ARISES. FILING OF RETURN OF INCOM E, ISSUE OF NOTICE THEREFOR, OR FOR PRODUCING MATERIALS IN SUPP ORT, ETC., ARE ALL A PART OF THE PROCEDURE OF ASSESSMENT. IT IS TH IS PROCEDURE, CULMINATING IN AN ASSESSMENT ORDER, THAT IS RENDERE D INVALID IN LAW WHEN THE ASSESSMENT IS, FOR ANY REASON, ANNU LLED OR HOLD VOID AB INITIO . WHETHER, THEREFORE, THE SAME IS ON ACCOUNT OF A NOTICE ASSUMING JURISDICTION TO FRAME FRESH AS SESSMENT (I.E., U/S.158BD, BASED ON AND IN CONSEQUENCE TO TH E MATERIALS FOUND IN SEARCH), AS, THE INSTANT CASE, O R FOR ANY OTHER REASON, IS OF LITTLE MOMENT. AS EXPLAINED BY THE HONBLE APEX COURT IN SHELLY PRODUCTS (SUPRA), THE LIABILITY TO TAX UNDER THE ACT DOES NOT DEPEND ON ASSESSMENT BEING MADE, B UT ARISES AS SOON AS THE FINANCE ACT PRESCRIBES RATES (OF TAX ) FOR THE ASSESSMENT YEAR. THE PROVISIONS OBLIGING THE PAYMEN T OF ADVANCE-TAX AND SELF-ASSESSMENT TAX, OR EVEN REQUIR ING A PERSON TO DEDUCT TAX AT SOURCE, WERE ACCORDINGLY HE LD AS NOT VIOLATIVE OF ARTICLE 265 OF THE CONSTITUTION OF IND IA (COI). THE ASSESSEE WAS, ACCORDINGLY, NOT ENTITLED TO REFUND T HEREOF IN TERMS OF SECTION 240, I.E., TO THE EXTENT OF TAX CH ARGEABLE ON THE ADMITTED INCOME. THE WHOLE PURPORT OF THE DECISION IS THAT THE CHARG E OF TAX IS ATTRACTED AS AND WHEN THE INCOME ARISES, SO THAT WHERE THE MACHINERY PROCEDURE FOR THE ASSESSMENT OF INCOM E AND, M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 9 CONSEQUENTLY, THE COLLECTION AND RECOVERY OF TAX ON SUCH INCOME, FAILS, THE LIABILITY TO TAX ON THE ADMITTED INCOME OBTAINS, AND IT IS THIS THAT IS SOUGHT TO BE RETAIN ED BY SECTION 240. THE ASSESSEE HAVING CONCEDED INCOME, THE TAX I N ACCORDANCE WITH THE LAW THEREON IS ADMITTED LIABILI TY, WHICH THEREFORE CANNOT BE REFUNDED. NOT ONLY, THUS, IS TH E PROVISION IN HARMONY WITH THE OTHER PROVISIONS OF THE ACT, TH E SAME FORMS PART OF THE LAW, SO THAT THERE IS NO BREACH O F ARTICLE 265 OF THE COI. SECTION 240, FALLING UNDER CHAPTER XIX OF THE ACT SHOULD ACCORDINGLY BE CONSIDERED AS A PROVISION TOW ARDS COLLECTION AND RECOVERY OF TAX. THE APEX COURT WENT ON TO SAY THAT THIS POSITION OBTAINED EVEN PRIOR TO INSERTION OF PROVISO (B) TO SECTION 240 W.E.F. 01.4.1989, AND WHICH WAS THUS ONLY DECLARATORY AND RETROSPECTIVE. THE INCOME PERTAINS TO THE RELEVANT YEAR, AND IS ADMITTED. THE ADMISSION OF INCOME PER A RETURN WHIC H BECOMES INVALID IN LAW FOR THE REASON OF THE NOTICE CALLING THEREFOR BEING OUT OF TIME IS AN ADMISSION NEVERTHE LESS. THE SAME IS IN FACT VOLUNTARY, AND AT A STAGE ANTERIOR TO THE ASSESSMENT BEING DECLARED VOID, OR THE NOTICE BEING HELD AS BAD IN LAW. THE RETURN OF INCOME, IN TERMS OF S. 13 9(1) OF THE ACT, ITSELF BEARS A SOLEMN DECLARATION AFFIRMING AN D VERIFYING THE SAID INCOME, TO THE EFFECT THAT IT IS CORRECT A ND COMPLETE, TRULY STATED, INCLUDING IN RESPECT OF ITS PARTICULA RS, AND IS IN ACCORDANCE WITH THE PROVISION OF THE ACT. IT WOULD BE A DIFFERENT MATTER WHERE THE ASSESSEE HAD CHOSEN TO D EPOSIT, BY WAY OF ABUNDANT CAUTION, ADVANCE TAX OR SELF ASSESS MENT TAX M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 10 IN EXCESS OF THE LIABILITY ON THE BASIS OF THE RETU RN FURNISHED, OR WHERE THE ASSESSEE HAD BY MISTAKE OR INADVERTENC E OR IGNORANCE OF LAW INCLUDED AS HIS INCOME AN AMOUNT W HICH WAS EXEMPT FOR PAYMENT OF TAX OR WAS NOT INCOME WITHIN THE CONTEMPLATION OF LAW. THE REASON IS SIMPLE. INCOME TO THAT EXTENT COULD NEITHER BE SAID TO BE ADMITTED INCOME OR AS CHARGEABLE TO TAX, SO THAT THERE WAS TO THAT EXTENT NO ADMITTED INCOME AND/OR, CORRESPONDINGLY, ADMITTED LIABILITY TO TAX. THIS ADMISSION, COUPLED WITH VERIFICATION, SHOULD THEREF ORE BIND THE RETURNER OF INCOME. THE WORD RETURNED IN S. 240 I S ACCORDINGLY TO BE UNDERSTOOD AS WITH REFERENCE TO I NCOME WHICH IS ADMITTED AND/OR UNDISPUTED. IN OTHER WORDS , EMPHASISES IN PROVISO (B) THEREOF IS ON THE TAX CHARGEABLE ON SUCH INCOME AND NOT THE MANNER IN WHICH IT IS ADMIT TED. WHY, THE ADVANCE TAX OR TDS IS PAID WITHOUT REFERENCE TO THE RETURN OF INCOME, I.E., DURING THE YEAR AS AND WHEN THE IN COME ARISES OR, AS THE CASE MAY BE, STANDS CREDITED OR PAID. TH E LEGISLATURE HAS CHOSEN TO USE THE WORD RETURNED I N S. 240 IN- AS-MUCH AS THE RETURN OF INCOME IS THE ONLY MECHANI SM WHEREBY THE ASSESSEE DISCLOSES HIS INCOME TO THE RE VENUE. 3.7 BE THAT AS IT MAY, THE AMOUNT SOUGHT TO BE DEMA NDED WITH REFERENCE TO S. 240, IS U/S.154, WHICH SECTION COULD ONLY BE INVOKED, AS IS TRITE LAW, WHERE THE MATTER ADMIT S OF NO TWO OPINIONS. THE HONBLE COURT IN K. NAGESH (SUPRA) HAS RENDERED A DIFFERENT VIEW, OUSTING SECTION 154. M/S APNA ORGANICS PVT LTD. IT(SS)A NO.26/MUM/2012 11 4. IN VIEW OF THE FOREGOING, THE ACTION OF THE ASSE SSING OFFICER U/S. 154, IN OUR VIEW, IS NOT SUSTAINABLE I N LAW, AND THE ASSESSEE SUCCEEDS IN RESULT. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE CONCLUSIO N OF THE HEARING ITSELF. SD/- SD/- ( SANJAY ARORA ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER $!# /JUDICIAL MEMBER % & MUMBAI; * DATED : 23/12/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 1 1 % 2# ( , ) / THE CIT, MUMBAI. 4. 1 1 % 2# / CIT(A)- , MUMBAI 5. 4$5 /# , 1 ,( 6 , % & / DR, ITAT, MUMBAI 6. ! 8& / GUARD FILE. ! / BY ORDER, 04,# /# //TRUE COPY// /! (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI