The ACIT-5(1), Indore V. M/s. Sharp Infrastructure Pvt. Ltd., Indore

MA 28/Ind/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0296 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 15-07-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY MEHTA
• Keywords: Revision of order; Depreciation; Audit objection; Assessment record; Tax effect; Reassessment proceedings
• Section: 143(3); 80IA; 254(2); 22; 147; 148; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER THROUGH VIRTUAL HEARING MA NO.28/IND/2020 ASSESSMENT YEAR 2007-08 A CIT 5 ( 1), INDORE / VS. M/S SHARP INFRASTRUCTURE PVT. LTD, 302, MORYA ARCADE, OLD PALASIA, INDORE ( REVENUE ) ( APPELLANT ) P.A. NO. AA ICS1226R APPELLANT BY SHRI SANJAY MEHTA, C.A REVENUE BY S HRI HARSHIT BARI , SR. DR DATE OF HEARING: 11.12.2020 DATE OF PRONOUNCEMENT: 28.12.2020 / O R D E R PER KUL BHARAT, J.M: THE REVENUE BY THIS MISCELLANEOUS APPLICATION NO.28/IND/2020 IN ITA NO.349/IND/2017 HAS SOUGHT RE CALLING OF THE ORDER DATED 22.10.2019 FOR THE ASSESSMENT YEAR 2007-08. SHARP INFRASTRUCTURE PVT. LTD M.A.NO.2/IND/2020 2 2. LD. DEPARTMENTAL REPRESENTATIVE REITERATED HIS S UBMISSIONS AS MADE IN HIS APPLICATION. THE CONTENTS OF THE APPLI CATION ARE REPRODUCED AS UNDER:- 1. THE BRIEF FACTS OF THE CASE ARE AS UNDER:- IN THIS CASE ORIGINAL ASSESSMENT U/S 143(3) WAS COMPLETED ON 19.11.2009. THEREAFTER, THE CASE WAS REOPENED U/S 147 OF THE LT . ACT, 1961 ON THE BASIS OF AUDIT OBJECTION RAISED BY REVENUE AUDIT PA RTY, WHERE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT AND R E- ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S 147 WAS COMPLETED ON 25.02.2015 AT THE ASSESSED INCOME OF RS.86,05,920/- . ADDITIONS WERE MADE IN THE FOLLOWING GROUNDS- A) DISALLOWED U/S 80IA OF RS. 79,53,563/- B) DISALLOWED DEPRECIATION OF RS. 3,52,694/- 2. AGGRIEVED ASSESSEE FILED APPEAL BEFORE THE CIT(A ) AGAINST THE ADDITIONS MADE BY THE AO. THE CIT(A) ALLOWED THE APPELLANTS A PPEAL AND QUASHED THE REASSESSMENT PROCEEDINGS. 3. THEREAFTER, THE REVENUE FILED APPEAL BEFORE HON' BLE ITAT, LNDORE AGAINST THE DECISION OF THE CIT(A). THE REVENUE FIL ED APPEAL CHALLENGING THE DECISION OF CIT(A) BEFORE HON'BLE ITAT, INDORE WITH THE STRONG GROUNDS BUT THE SAME COULD NOT BE CONSIDERED IN PUR SUANCE THE MONITORY LIMIT OF TAX. THE TAX EFFECT IN THIS CASE OF RS. 27,95,886/- . 4. THE HON'BLE ITAT BENCH, INDORE VIDE COMBINED ORD ER DATED 22.08.2019 BEARING ITA NO. 379/INDL2017 (MLS N.T. THOMAS MEMORIAL EDUCATIONAL & DEVELOPMENT SOCIETY, INDORE) & OTHERS (M/S SHARP INFRASTRUCTURE PVT LTD, INDORE) DISMISSED THE APPEA L OF THE DEPARTMENT IN VIEW OF CIRCULAR NO. 03, OF 2018 DATED 11.07.2018 A ND SUBSEQUENT AMENDMENT DATED 20.08.2018 AND 08.08.2019 ON LOW TA X EFFECT WITHOUT CONSIDERING THE MERITS OF THE CASE. 6. ON GOING THROUGH THE ORDER REFERRED TO ABOVE, IT APPEARS THAT THE REVENUE'S APPEALS HAVE BEEN DISMISSED ON THE GROUND OF MONETARY LIMIT. IN THIS REGARD, YOUR KIND ATTENTION IS INVITED TO T HE PARA NO. 10(C) OF CBDT CIRCULAR NO. 03/2018 DATED 11/07/2018 AND AMENDED W.E.F. 20.08.2018 AS UNDER:- SHARP INFRASTRUCTURE PVT. LTD M.A.NO.2/IND/2020 3 10. ADVERSE JUDGMENTS RELATING TO THE FOLLOWING IS SUES SHOULD BE CONTESTED ON MERITS NOTWITHSTANDING THAT THE TAX E FFECT ENTAILED IS LESS THAN THE MONETARY LIMITS SPECIFIED IN PARA 3 ABOVE OR THERE IS NO TAX EFFECT: (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PROVI SIONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR (B) WHERE BOARDS ORDER, NOTIFICATION, INSTRUCTION OR CIRCULAR HAS BEEN HELD TO BE ILLEGAL OR UNTRA VIRES, OR (C) WHERE REVENUE AUDIT OBJECTION IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT, OR (D) WHERE THE ADDITION RELATES TO UNDISCLOSED FORE IGN ASSETS/BANK ACCOUNTS. THIS CASE WAS REOPENED U/S 147 OF THE LT ACT, 1961 ON THE BASIS OF AUDIT OBJECTI ON WHERE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE D EPARTMENT AND HENCE, THE CASE IS EXEMPTED FROM MONETARY LIMIT S SPECIFIED IN PARA 3 OF CBDT CIRCULAR NO. 03/2018 DATED 11107/2018 AND AMENDED W.E.F. 20.08.2018. THEREFORE, HON'BLE ITAT, INDORE IS HUMB LY REQUESTED TO DECIDE THE APPEAL AFTER CONSIDERING THE MERITS OF T HE CASE. 3. LD. COUNSEL FOR THE ASSESSEE OPPOSED THE SUBMISS IONS AND REITERATED THE OBJECTIONS WHICH IS REPRODUCED AS UN DER:- WITH REFERENCE TO THE ABOVE, IT IS HEREBY STATED TH AT THE MISCELLANEOUS APPLICATION FILED BY THE PETITIONERS IS NOT BASED ON THE FACTS AND IS HIGHLY OBJECTIONABLE IN VIEW OF THE FO LLOWING. 1. THE MA IS FILED AGAINST THE ORDER OF HON'BLE TRIBUN AL IN ITA NO. 379/1ND/2017 DATED 22/08/2019 FOR AY 2007-08 IN CASE OF SHARP INFRASTRUCTURE PRIVATE LIMITED, WHICH WAS PASSED TO DECIDE THE BUNCH OF APPEALS BY DEPARTMENT, WHERE THE TAX EFFECT WAS BEL OW RS. 50.00 LACS. THE ABOVE ORDER WAS PASSED TO GIVE EFFECT TO THE CS DT'S CIRCULAR NO. 03/2018 AND SUBSEQUENT AMENDMENT THERETO DT. 8 TH AUGUST 2019. 2. THE CASE OF RESPONDENT IS SQUARELY COVERED BY ABOVE CIRCULAR AND HON'BLE TRIBUNAL WAS FULLY AWARE OF THE EXCEPTIONS IN THE ABOVE CIRCULAR AND THERE WERE NO EXCEPTIONS APPLICABLE ON THE ABOV E CASE, THEREFORE THE HON'BLE TRIBUNAL HAS RIGHTLY DECIDED THE APPEAL BY REJECTING THE APPEAL OF DEPARTMENT SINCE DISPUTED TAX DEMAND WAS BELOW RS. 50.00 LACS IN THE ABOVE CASE AND IS NOT HIT BY ANY EXCEPTIONS. SHARP INFRASTRUCTURE PVT. LTD M.A.NO.2/IND/2020 4 3. THE AO HAS CLAIMED IN THE MA THAT THE ORIGINAL ASSE SSMENT ULS 143(3) WAS COMPLETED ON 19/11/2009. THEREAFTER THE CASE WAS REOPENED ULS 147 OF THE LT. ACT, 1961 ON THE BASIS OF THE AUDIT OBJECTION RAISED BY THE REVENUE AUDIT PARTY, WHERE THE AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT AND RE-ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S 147 WAS COMPLETED ON 25/02/2015 AND THEREFORE THE CASE FALLS UNDER THE AMBIT OF EXCEPTION ENUMERATED IN THE CSDT CIRCULAR NO. 03/2018 DT. 11/07/2018 UNDER CLAUSE 10(C) I.E. WHERE THE REVENUE AUDIT OBJECTION IS THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. 4. THE LEARNED A.O HAS ALREADY DENIED IN PROCEEDINGS B EFORE HIGH COURT THAT THE CASE WAS REOPENED ON THE BASIS OF AUDIT OB JECTED RAISED BY REVENUE AUDIT/INTERNAL AUDIT PARTY. 4.1. PLEASE REFER TO THE REPLY FILED BY THE AO. WIT H AFFIDAVIT ON OATH DT. 30106/2015 IN HON'BLE HIGH COURT ON 04/07/2015 IN THE PETITION OF APPELLANT IN THE SAME PROCEEDINGS, A RELEVANT EXTRA CT THEREOF IS REPRODUCED HERE. 4. DENIED. A SHOW CAUSE DATED 22.01.2013 WAS ISSUED TO THE ASSESSEE ON THE BASIS OF SCRUTINY OF ASSESSMENT R ECORDS AND THERE IS NO REFERENCE OF ANY OBJECTION RAISED BY THE REV ENUE AUDIT PARTY. COPY OF THE SAID SHOW CAUSE LETTER IS ATTACHED A ND MARKED AS ANNEXURE-R/2. THUS, THE CONTENTION RAISED BY THE A SSESSEE THAT THE SHOW CAUSE ISSUED BY THE AO WAS BASED ON THE O BJECTION RAISED BY RAP AND THIS FACT IS ACCEPTED BY THE A. O, IS FACTUALLY NOT CORRECT. THEREFORE, THE RELIANCE BY THE ASSESSEE ON VARIOUS JUDGEMENTS IS OF NO RELEVANCE IN THIS CASE. IN THE ABOVE REPLY CLAUSE NO. 4 ON PAGE 2, AO. HAS CLEARLY DENIED THAT SHOW CAUSE DT. 22/01/2013 WAS BASED ON ANY AUDIT OBJECTION. HE ALSO ACCEPTED THAT THE ABOVE IS TRUE SINCE THERE IS NO R EFERENCE OF AN OBJECTION RAISED BY THE REVENUE AUDIT PARTY. IT MAY BE NOTED THAT THE AUDIT WAS ALREADY COMPLETED IN 2011, AND IF THE SHOW CAUS E NOTICE DT. 22/01/2013 WAS NOT BASED ON AUDIT OBJECTIONS ACCEPTED BY THE A O., ALL THE SUBSEQUENT PROCEEDINGS CAN SAFELY BE ASSUME D AS NOT BASED ON AUDIT OBJECTIONS INCLUDING THE REOPENING OF THE CAS E IN MARCH 2014. DESPITE OF ABOVE GIVEN ON OATH IN PROCEEDINGS BEFOR E JURISDICTIONAL BENCH OF HIGH COURT WHERE IT WAS ADMITTED THAT SHOW CAUS E NOTICE GIVEN TO APPELLANT WAS NOT BASED ON AUDIT OBJECTION AND THE BASIS OF GIVING SHOW CAUSE NOTICE WAS BASED SCRUTINY OF ASSESSMENT RECOR DS. NOW IN THIS MISCELLANEOUS APPLICATION THE APPELLANT I.E. THE DE PARTMENT IS CLAIMING IN MA THAT THE CASE WAS REOPENED ON THE BA SIS OF AUDIT OBJECTIONS RAISED BY REVENUE AUDIT PARTY, WHICH IS CONTRARY TO AFFIDAVIT AND STATEMENT GIVEN BEFORE HON'BLE HIGH COURT. THEREFORE EITHER THE AFFIDAVIT FILED BY THE AO. IS FALSE OR THE CLAIM IN THE SHARP INFRASTRUCTURE PVT. LTD M.A.NO.2/IND/2020 5 M.A IS FALSE, AS BOTH ARE CONTRARY TO EACH OTHER AN D ONLY ONE OF THE ABOVE CAN BE ACCEPTED. IN CASE M.A IS ACCEPTED, IT WILL D EFEAT THE PURPOSE OF SECTION 254(2) AND THERE WILL BE A NO END TO THE L ITIGATIONS WHICH ARE PROPOSED TO BE REDUCED BY WAY OF RELAXATION IN CSDT 'S CIRCULAR 3/2018. IT IS ALSO CLEAR THAT RESORTING TO THE EXCEPTION CL AUSE 10(C) IS AN AFTERTHOUGHT OF THE AO., AND IS NOT BASED ON THE AC TUAL FACTS OF THE CASE. 5. IT'S THE ASSESSE WHO HAD OBJECTED TO THE REOPENING OF THE CASE ON THE BASIS OF AUDIT OBJECTIONS, IN ABSENCE OF ANY NEW IN FORMATION I DOCUMENT HAVING SHOWN TO BE RECEIVED BY THE A.O. SUT THE AO. HAS IN FACT NEVER ACCEPTED IN PAST THAT REASSESSMENT PROCEEDINGS HAVE BEEN INITIATED ON THE BASIS OF AUDIT OBJECTIONS, WHICH IS EVIDENT IN ALL THE NOTICES, ORDERS AND PROCEEDINGS. 6. THE CLAIM OF THE DEPARTMENT IN MA, THAT THE CASE WA S RE-OPENED ON THE BASIS OF THE AUDIT OBJECTIONS IS ALSO CONTRARY TO A LL THE PROCEEDINGS BEFORE AND DURING THE ASSESSMENT U/S 143(3) R.W.S 147 AS T HERE IS NO REFERENCE OF ANY AUDIT OBJECTIONS IN ANY OF ITS, NOTICES, OR ORDERS PARTICULARLY DETAILED IN 6.1 TO 6.3 BELOW:- 6.1 SHOW CAUSE NOTICE ISSUED ON 22ND JANUARY 2013 B EFORE ISSUE OF NOTICE U/S 148 (COPY ENCLOSED) A.O HAD IN PAST ALSO ISSUED A SHOW CAUSE NOTICE IN JANUARY 2013, I.E. BEFORE ISSUE OF NOTICE U/S 148, WHICH IS AS B ELOW. OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX 1(2), INDORE F.NO.ACIT-1(2)/IND/AUDIT/2012-13/ JANUA RY 22, 2013 TO SHARP INFRASTRUCTURE PVT LTD, 302 MORYA ARACE, OLD PALASIA, INDORE SUB: SHOWCAUSE NOTICE UNDER INCOME TAX ACT, 1961 A.Y. 2007-08 REG SHARP INFRASTRUCTURE PVT. LTD M.A.NO.2/IND/2020 6 PLEASE REFER TO THE ASSESSMENT COMPLETED U/S 143(3 ) ON 19.11.2009 IN YOUR CASE. ON SCRUTINY OF THE ASSESSMENT RECORDS, IT IS OBSERVED THAT YOU HAVE CLAIMED DEDUCTION OF RS.79,92,473/- U/S 80IA AND ALLOWED R S.79,53,563/-. HOWEVER, IT IS OBSERVED THAT YOU HAVE WORKED AS SPECIAL PROJECT VEH ICLE (SPV) OF M/S NILA BHARAT ENGINEERING LTD AND BOT WORK DONE BY YOU WAS NOT A NEW INFRASTRUCTURE FACILITY AND CARRIED OUT WORK AS SPV. HENCE YOU HAVE NOT FULFILL ED THE CONDITIONS OF 80IA TO AVAIL DEDUCTION. HENCE THIS HAS RESULTED IN UNDER ASSESS MENT OF INCOME OF RS.79,53,562/-. FURTHER IT IS NOTICED THAT YOU HAVE PURCHASED A HYD RAULIC EXCAVATOR ON 26.09.2006 AND IT PASSED COMMERCIAL CHECK POST, KHAWAUN ON 02.10.2 006. THEREFORE, IT MUST HAVE BEEN PUT USE ONLY AFTER 02.10.2006, BUT YOU HAVE CL AIMED DEPRECIATION @15% OF RS.7,05,386/- (ON COST RS.47,02,576) WHICH WAS ALLO WABLE @7.5%. THEREFORE, THE ALLOWABLE DEPRECIATION WORKS OUT TO RS.3,52,692/- AND THERE HAS BEEN AN UNDER ASSESSMENT OF INCOME TO THAT EXTENT. YOU ARE THEREF ORE REQUESTED TO SHOWCAUSE AS TO WHY THE SAID AMOUNTS BE ADDED TO THE INCOME. YOU MA Y FILE YOUR WRITTEN REPLY/ SUBMISSIONS WITHIN 7 DAYS OF THE RECEIPT OF THIS NO TICE, FAILING WHICH NECESSARY ACTION SHALL BE TAKEN BY THIS OFFICE. SD/- (G.P. SINGH) ASST. COMMISSIONER OF INCOME TAX 1(2), INDORE THE ABOVE SHOW CAUSE NOTICE WAS ISSUED ON 22 ND JAN 2013, I.E. BEFORE MORE THAN A YEAR OF ISSUE OF NOTICE U/S 148 FOR SAM E CASE. HERE ALSO WORDINGS ARE THAT 'ON SCRUTINY OF ASSESSMENT RECORDS, IT IS OBSERVED' I.E. THERE IS NO REFERENCE OF AUDIT OBJECTION. FURTHER THE ABOVE NOTICE ITSELF WAS NON-JURISDICTIONAL AS THERE IS NO REFERENCE OF ANY SECTION PENDING PROCEEDINGS IN THE ABOVE NOTICE AND THERE WERE ACTU ALLY NO PENDING PROCEEDINGS ON THE DATE OF NOTICE I.E. 22/01/2013 FOR AY 2007- 08. HOWEVER IT SIGNIFIES THAT THE A.O. WAS NOT SATISFIE D THAT INCOME HAD ESCAPED ASSESSMENT, IF HE WOULD HAVE BEEN SATISFIED ABOUT IT, HE WOULD HAVE INITIATED REASSESSMENT PROCEEDINGS INSTEAD OF INQUIRY BY WAY OF A SHOW CAUSE NOTICE. MOREOVER THE APPELLANT HAD FILED SUBMISSION ON 4TH FEB 2013 (COPY ENCLOSED) IN RESPONSE TO THE ABOVE NOTICE, HOWEVER WITHOUT DISPOSAL OF THE ABOVE REPLY, A FRESH NOTICE U/S 148 WAS ISSUED AFTER MORE THAN ONE YEAR IN MARCH 2014 GIVING SAME SET OF ARGUMENTS AS APPEARING IN THE SHOW CAUSE NOTICE. 6.2 THE REASONS RECORDED IN SATISFACTION FOR INITIATION OF REASSESSMENT PROCEEDINGS U/S 147 AS EXTRACTED BELOW SHARP INFRASTRUCTURE PVT. LTD M.A.NO.2/IND/2020 7 HERE THE A.O. HAS MENTIONED ALL THE REASONS AS REVEALED FROM ASSESSMENT RECORDS AND HERE IS THERE IS NO REFERENC E OF AUDIT OBJECTION. 6.3 ASSESSMENT ORDER U/S 143(3) R.W.S 147 (COPY ENCLOSE D) AS CAN BE SEEN THAT THERE IS NO REFERENCE OF AUDIT OBJECTIONS ANYWHERE IN THE ORDER PASSED UNDER SECTION 143(3) R.W.S 147 ALS O. THEREFORE IT IS CLEAR THAT THERE WAS NO REFERENCE O F ANY AUDIT OBJECTIONS IN THE ANY PROCEEDINGS FROM SHOW CAUSE IN JANUARY 2013 TO ASSESSMENT ORDER U/S 143(3) R.W.S 147 PASSED ON 20/02/2015. 7. THE ORIGINAL ASSESSMENT U/S 143(3) WAS COMPLETED IN NOVEMBER 2009, AND THEREFORE THE REVENUE AUDIT SHOULD HAVE BEEN CO MPLETED FOR ABOVE PROCEEDINGS AT THE MOST BY MARCH 2011, THEREFORE AL SO IT IS NOT CLEAR THAT, IF THE AUDIT OBJECTIONS WERE ACCEPTED BY DEPA RTMENT. 7.1. WHY NOTICE U/S 148 WAS ISSUED IN MARCH 2014 I.E. AFTER 3 YEARS FRO M COMPLETION OF AUDIT. 7.2. WHY A SHOW CAUSE NOTICE W AS ISSUED IN THE JANUARY 2013, INSTEAD OF NOTICE U/S 148, OR NOTICE OF REVISION U/S 263. ISSUE OF SHOW CAUSE NOTICE ITSELF IS EVIDENCE OF TH AT EITHER THERE WERE NO SHARP INFRASTRUCTURE PVT. LTD M.A.NO.2/IND/2020 8 AUDIT OBJECTIONS, OR SAME WERE NOT ACCEPTED BY THE DEPARTMENT TILL JANUARY 2013. 7.3. MOREOVER IF DEPARTMENT IS OF VIEW THAT THE ORD ER IS ERRONEOUS, THE CORRECT REMEDY IS REVISION OF ORDER U/S 263 OF THE ACT AND NOT REASSESSMENT PROCEEDINGS U/S 147 WHICH IS APPLICABL E ONLY ON RECEIPT OF FRESH INFORMATION WHICH WAS NOT ON RECORDS AT THE T IME OF ORIGINAL ASSESSMENT PROCEEDINGS. FROM THE ABOVE IT IS CLEAR THAT EITHER THERE WAS NO AUDIT OBJECTION OR, EVEN IF THERE WERE ANY AUDIT OBJECTIONS, SAME WERE NOT ACCEPTED BY THE DEPARTMENT. SIR MERELY EXISTENCE OF AUDIT OBJECTION S IS NOT SUFFICIENT, IT SHOULD BE ACCEPTED BY THE DEPARTMENT AND PROVED THA T IT WERE ACCEPTED, WHICH IS NOT DONE BY THE DEPARTMENT. EMPHASIS SUPPL IED ON WORD ACCEPTED SINCE EXCEPTION IN CLAUSE 10(C) OF CIRCULA R 3/2018 WHICH IS RESORTED BY THE DEPARTMENT AS THE BASIS OF MA, CLEA RLY STATES THAT 'WHERE THE REVENUE AUDIT OBIECTIONS IN THE CASE HAS BEEN ACCEPTED BY THE DEPARTMENT. THEREFORE THE ABOVE CONDITION IS NOT FULFILLED IN THE PRESENT CASE. 8. FROM THE ABOVE IT IS CLEAR THAT THE FACT OF 'REOPEN ING OF THE CASE ON THE BASIS OF AUDIT OBJECTION WHICH ARE ACCEPTED BY DEPA RTMENT' IS MATTER OF DISPUTE AND ARGUMENTS, SUBMISSION OF FURTHER EVIDEN CES, AND NOT A MISTAKE APPARENT FROM RECORDS. THE M. A U/S 254(2) CAN BE ENTERTAINED ONLY AGAINST MISTAKES APPARENT ON RECORDS AND NOT O N THE BASIS OF ANY MATTER WHICH IS DISPUTABLE. THE FACT OF CASE BEING REOPENED ON THE BASIS OF AUD IT OBJECTION IS SUBJECT MATTER OF ARGUMENTS PRODUCTION OF FURTHER EVIDENCES AND NOT APPARENT FROM RECORDS, THEREFORE RECALLING THE ORDER ON THE BASIS OF A DISPUTABLE MATTER WILL AMOUNT TO REVIEW OF THE ORDER, WHICH IS NOT PERMISSIBLE U /S 254(2). THERE IS NOTHING IN THE ASSESSMENT ORDER, N OTICE U /S 148, OR REASSESSMENT PROCEEDINGS, THROUGH WHICH HON'BLE ITA T COULD HAVE KNOWN THAT THERE IS AN AUDIT OBJECTION AND THEREFOR E THE THERE IS NO APPARENT MISTAKE IN THE ORDER AND THEREFORE THE M.A APPLICATION IS LIABLE TO BE REJECTED. 4. LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CONTRO VERT THE FACT THAT BEFORE HON'BLE HIGH COURT OF MADHYA PRADESH IT WAS STATED ON BEHALF OF THE REVENUE THAT THE ASSESSMENT WAS NOT R E-OPENED ON THE BASIS OF AUDIT OBJECTION. HENCE, THE REVENUE H AS CONTRARY SHARP INFRASTRUCTURE PVT. LTD M.A.NO.2/IND/2020 9 STAND. WE THEREFORE DISMISS THE MISCELLANEOUS APPLI CATION OF REVENUE. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28.12.2 020 SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED : 28/12/2020 /DEV COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE