M/s Rollatainers Ltd, New Delhi v. ACIT, New Delhi

CO 298/DEL/2009 | 2002-2003
Pronouncement Date: 05-02-2010 | Result: Allowed

Appeal Details

RSA Number 29820123 RSA 2009
Assessee PAN AAACR0344K
Bench Delhi
Appeal Number CO 298/DEL/2009
Duration Of Justice 5 month(s) 4 day(s)
Appellant M/s Rollatainers Ltd, New Delhi
Respondent ACIT, New Delhi
Appeal Type Cross Objection
Pronouncement Date 05-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 05-02-2010
Date Of Final Hearing 01-02-2010
Next Hearing Date 01-02-2010
Assessment Year 2002-2003
Appeal Filed On 31-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA VICE PRESIDENT AND SHRI I.P. BANSAL JUDICIAL MEMBER ITA NO. 709/DEL/2009 ASSESSMENT YEAR: 2002-03 ACIT CIRCLE 15(1) NEW DELHI. VS. ROLLATAINERS LTD. LOWER GROUND FLOOR LOTUS TOWER NEW FRIENDS COLONY MADHURA ROAD NEW DELHI. PAN NO. AAACR0344K (APPELLANT) (RESPONDENT) & CROSS OBJECTION NO. 298/DEL/09 (IN ITA NO. 709/DEL/09) ASSESSMENT YEAR: 2002-03 ROLLATAINERS LTD. LOWER GROUND FLOOR LOTUS TOWER NEW FRIENDS COLONY MADHURA ROAD NEW DELHI. PAN NO. AAACR0344K VS. ACIT CIRCLE 15(1) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. H.K. LAL SR. DR RESPONDENT BY: SH. AJAY VOHRA ADV. SH. GAURAV JAIN FCA & SH. AVDH ESH BANSAL ACA O R D E R PER I.P. BANSAL J.M. THE APPEAL IS FILED BY THE REVENUE AND CROSS OBJE CTION BY THE ASSESSEE. BOTH OF THEM ARE DIRECTED AGAINST THE OR DER OF CIT(A) DATED 12.11.08 FOR A.Y. 2002-03. GROUNDS OF APPEAL READ AS UNDER: - 2 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS . 1 67 20 315/- MADE BY THE AO U/S 41(1) ON THE ACCOUNT OF WAIVER O F INTEREST BY THE FINANCIAL INSTITUTION. 2. THE APPELLANT CRAVES TO BE ALLOWED TO AMEND DEL ETE OR ADD ANY OTHER GROUNDS OF APPEAL. GROUNDS OF CROSS OBJECTION READ AS UNDER: - 1. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE CIT(A) ERRED IN LAW IN NOT QUASHING THE ASSESSMENT ORDER D ATED 4.10.07 PASSED BY THE AO U/S 147 OF THE INCOME TAX ACT 196 1 (THE ACT) DESPITE HOLDING THAT THE SAME WAS INITIATED ON THE BASIS OF CHANGE OF OPINION WHICH IS IMPERMISSIBLE AND BEYON D JURISDICTION UNDER THE SECTION. 1.1 THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NO T HOLDING THAT REASSESSMENT ORDER U/S 147 IF THE ACT WAS BEYOND JU RISDICTION AS THE SAME WAS INITIATED ON THE BASIS OF AUDIT OBJECTIONS/OBSERVATIONS WITHOUT ANY INDEPENDENT SAT ISFACTION REACHED BY THE AO. THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND OR VARY FROM THE AFORESAID GROUNDS OF APPEAL BEFORE OR AT THE TIME O F HEARING. 2. CROSS OBJECTION ARE BELATEDLY FILED BY 68 DAYS. AN APPLICATION DATED 31 ST AUGUST 2009 IS ON RECORD PRAYING THE CONDONATION OF DELAY. IT IS SUBMITTED IN THE APPLICATION THAT ASSESSEE IS A PUBLIC LIMITED COMPANY. THE APPEAL WAS FILED BY THE REVENUE AGAINST THE ORD ER OF CIT(A) DATED 12.11.08. THE APPEAL FILED BY THE REVENUE WAS INTI MATED TO THE ASSESSEE ON 25 TH APRIL 2009 AT ITS CORPORATE OFFICE ADDRESS AND TH E NOTICE WAS SERVED FROM THE CORPORATE OFFICE TO CONC ERNED PERSON 3 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 HANDLING THE TAX MATTER ON 7 TH MAY 2009 AFTER INADVERTENT DELAY. THE TIME OF FILE CROSS OBJECTION EXPIRED ON 24 TH MAY 2009 AND THE PRESENT CROSS OBJECTIONS WERE FILED ON 31 ST AUGUST 2009. IT IS SUBMITTED IN THE APPLICATION THAT CIT(A) HAS DELETED THE ADDITION ON MERIT AND ON THE ISSUE OF INVALIDITY OF REASSESSMENT PROCEEDINGS HE HAS HELD REASSESSMENT WAS DONE MERELY ON THE BASIS OF CHANGE OF OPINION WHICH IS IMPERMISSIBLE AND BEYOND JURISDICTION BUT CIT(A) DID NOT QUASH THE ASSESSMENT. IT IS SUBMITTED THAT THE GROUND RAISED IN CROSS OBJECTION IS PURELY A LEGAL GROUND AND ALL THE FACTS ARE AVAILAB LE ON RECORD. IT IS SUBMITTED IN THE APPLICATION THAT ACCORDING TO DECI SION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISI TION VS. MST KATIJI & OTHERS 167 ITR 471 THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUI NG EXPRESSION SUFFICIENT CAUSE THE PRINCIPLE OF ADVANCING SUBS TANTIAL JUSTICE IS OF PRIME IMPORTANCE AND THUS IT HAS BEEN PLEADED THAT DELAY SHOULD BE CONDONE. 3. AT THE TIME OF HEARING LD. AR AFTER REFERRING T HE CONTENTS OF THE CONDONATION APPLICATION PLEADED THAT SINCE CIT(A) H AS DENIED TO GIVE HIS VERSION REGARDING INVALIDITY OF REASSESSMENT PROCEE DINGS ON THE GROUND THAT THE SAME IS ACADEMIC AS THE ADDITION HAS BEEN DELETED ON MERITS BUT AT THE SAME TIME HE HAS RECORDED A FINDING THAT THE REASSESSMENT IS BASED ON CHANGE OF OPINION. HE SUBMITTED THAT AC CORDING TO THE LATEST DECISION RENDERED BY HONBLE SUPREME COURT IN THE C ASE OF CIT VS. 4 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 KELVINATOR OF INDIA (DECISION DATED 18.1.2010) IN C IVIL APPEAL NOS. 2009 TO 2011 OF 2003 THE REASSESSMENT COULD NOT BE BASE D ON MERE CHANGE OF OPINION. HE HAS PLACED BEFORE US A COPY OF THE SAID ORDER. IT WAS PLEADED THAT EVEN IF THE CROSS OBJECTION OF THE ASS ESSEE ARE TO BE NOT ADMITTED ON GROUND OF SUFFICIENT REASONS EVEN THEN ASSESSEE CAN SUPPORT THE ORDER OF CIT(A) UNDER RULE 27 OF I.T. R ULES 1962 THEREFORE ALSO THE GROUND REGARDING INVALIDITY IS REQUIRED TO BE ADJUDICATED. 4. ON THE OTHER HAND LD. DR OPPOSED THE SUBMISSION OF THE ASSESSEE REGARDING CONDONATION OF DELAY. 5. THE FACTS RELATING TO THE GROUND RAISED BY REVEN UE BRIEFLY STATED ARE AS UNDER: - RETURN OF INCOME FOR A.Y. 2002-03 WAS FILED BY THE ASSESSEE ON 31 ST OCTOBER 2002 AT A NET LOSS OF RS. 12 85 38 352/-. ASSESSMENT U/S 143(3) WAS COMPLETED ON 28.03.05 AT NIL INCOME. TH EREAFTER REASSESSMENT PROCEEDINGS WERE INITIATED BY ISSUE OF NOTICE U/S 148 ON 30.03.07. IN THE REASSESSMENT PROCEEDING THE ASSE SSEE WAS ASKED TO EXPLAIN AS TO WHY INTEREST AMOUNTING TO RS. 1 67 20 315/- WAIVED DURING A SCHEME OF RESTRUCTURING PROPOSAL SHOULD NOT BE AD DED TO THE INCOME OF THE ASSESSEE U/S 41(1) OF I.T. ACT 1961 (ACT). IT WAS SUBMITTED THAT COMPANY HAD TO PAY INTEREST OF RS. 2 29 83 138/- TO THE FINANCIAL INSTITUTION. THE TOTAL EXPENDITURE ON INTEREST TO FINANCIAL INSTITUTION WAS A SUM OF RS. 3 04 92 049/-. DURING THE YEAR UNDER TH E SCHEME OF 5 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 RESTRUCTURING FINANCIAL INSTITUTION HAD WAIVED A SU M OF RS. 1 67 20 315/- OUT OF OUTSTANDING INTEREST DUE TO THEM. IT WAS SU BMITTED THAT NO DEDUCTION IN EARLIER YEAR ON ACCOUNT OF THAT INTERE ST WAS ALLOWED THEREFORE NO ADDITION COULD BE MADE U/S 41(1) OF T HE ACT. IT WAS SUBMITTED THAT IN THE PRECEDING RETURNS ASSESSEE HA D DISALLOWED THE UNDER MENTIONED MOUNT OF INTEREST DUE TO FINANCIAL INSTITUTION: - A.Y. AMOUNT 2000-01 38635825 2001-02 36255738 2002-03 30492049 105383612 6. REFERENCE WAS MADE TO ANNEXURE II SUBMITTED WITH TAX AUDIT REPORT TO SUBSTANTIATE THE CLAIM BUT AO DID NOT ACC EPT SUCH SUBMISSION ON THE GROUND THAT ASSESSEE COULD NOT PRODUCED COPY OF LEDGER OF INTEREST ON FINANCIAL INSTITUTION FOR ASSESSMENT YE ARS 2000-01 & 2001-02 SHOWING CLEARLY AS TO HOW MUCH INTEREST LIABILITY O N ACCOUNT OF INTEREST ON FINANCIAL INSTITUTION ACCRUED TO THE ASSESSEE FOR A LL THE RELEVANT YEARS AND HOW MUCH AMOUNT WAS ADDED BACK BY THE ASSESSEE U/S 43B OF THE ACT IN THOSE YEARS BEING UNPAID AMOUNT. ACCORDING TO A O THE BURDEN WAS ON THE ASSESSEE AND IN ABSENCE OF DETAILS FILED BY THE ASSESSEE HE ADDED THE SAID SUM TO THE INCOME OF THE ASSESSEE U/ S 41(1) OF THE ACT. THE SUBMISSIONS MADE BEFORE AO WERE REITERATED BY T HE ASSESSEE BEFORE CIT(A). YEAR WISE DETAILS OF AMOUNT ACCRUED TO BE PAID AMOUNT PAID AND AMOUNT DISALLOWED IN THE COMPUTATION OF IN COME WAS SUBMITTED ALONGWITH HISTORY. FOR THE SAKE OF CONVENIENCE THE HISTORY AS DESCRIBED IN THE ORDER OF CIT(A) WAS AS UNDER: - 6 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 IN THIS REGARD HISTORY OF INTEREST EXPENSE PAYABL E TO FINANCIAL INSTITUTIONS AND DISALLOWANCE MADE IN EAR LIER YEAR IS SUMMARIZED HEREUNDER: IT IS THE RESPECTFUL SUBMISSION OF THE APPELLANT TH AT THERE WAS NO OUTSTANDING LIABILITY ON ACCOUNT OF INTEREST PAY ABLE TO FINANCIAL INSTITUTION AS ON 1 ST APRIL 1999 AS IS EVIDENT FROM ANNEXURE XIV TO TAX AUDIT REPORT FOR THAT YEAR 1999 -2000 AGAINST WHICH AN AMOUNT OF RS. 1 29 70 745/- WAS PA ID DURING THAT YEAR ITSELF. THE BALANCE UNPAID AMOUNT OF RS. 3 86 35 825/- WAS REFLECTED UNDER ANNEXURE XV OF TH E TAX AUDIT REPORT AND WAS DISALLOWED UNDER SEC. 43B OF T HE ACT IN THE RETURN OF INCOME FOR THAT YEAR. IN THE IMMEDIATELY SUCCEEDING PREVIOUS YEAR 2000-01 OUT OF THE AFORESAID UNPAID AMOUNT OF RS. 3 86 35 825/- TH E APPELLANT PAID AN AMOUNT OF RS. 3 16 10 140/- FOR W HICH DEDUCTION U/S 43B WAS CLAIMED IN THAT YEAR WHILE S USTAINING A BALANCE DISALLOWANCE OF RS. 70 25 685/-. DURING THE PREVIOUS YEAR 2000-01 THE APPELLANT INC URRED INTEREST EXPENSE OF RS. 3 77 58 506/- AN AMOUNT OF RS. 15 02 770/- W3AS PAID BEFORE THE DUE DATE OF THE FI LING OF RETURN FOR THAT YEAR. THE BALANCE AMOUNT OF RS. 3 62 55 736/- REMAINED UNPAID AS AT THE END OF 31.3 .2001. THE BALANCE UNPAID AMOUNT OF RS. 3 62 55 736/- WAS DISALLOWED U/S 43B OF THE ACT IN THE RETURN OF INCO ME FOR THAT YEAR. IN VIEW OF THE ABOVE THE TOTAL AMOUNT UNPAID AS ON 1.4.2001 AMOUNTING TO RS. 4 32 81 421/- (RS. 70 25 685 UNP AID FOR THE YEAR ENDING 31.3.2000 + RS. 3 62 55 736 UNPAI D FOR YEARS ENDING 31.3.01) STOOD DISALLOWED U/S 43B OF T HE ACT IN THE RETURN OF INCOME FOR THE ASSESSMENT YEARS 2000- 01 AND 2001-02 RESPECTIVELY. IT IS THE RESPECTFUL SUBMISSION OF THE APPELLANT TH AT THE AFORESAID AMOUNT OF RS. 4 32 81 421/- WAS REPORTED BY THE AUDITOR IN ANNEXURE XI OF TAX AUDIT REPORT FOR THE RELEVANT 7 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 PREVIOUS YEAR AGAINST THE COLUMN/QUERY-LIABILITY P RE-EXISTING ON FIRST DAY OF PREVIOUS YEAR. OUT OF THE AFORESA ID AMOUNT OF RS. 4 32 81 421/- THE FINANCIAL INSTITUTIONS WAIVE D OFF INTEREST AMOUNTING TO RS. 1 67 20 315/- UNDER THE DEBT RESTRUCTURING PROPOSAL WHICH WAS REDUCED FROM THE I NTEREST EXPENSE FOR THE RELEVANT YEAR. SINCE THE AMOUNT ST OOD CREDITED TO PROFIT AND LOSS ACCOUNT IT WAS NECESSA RY TO REDUCE THE AMOUNT WHILE COMPUTING TAXABLE INCOME AS SEC. 41(1) WOULD NOT BE INVOKED FOR SUCH AMOUNT. IT IS THE RESPECTFUL SUBMISSION OF THE APPELLANT TH AT THE ABOVE CLEARLY ESTABLISHES THAT INTEREST WAIVED OFF DURING THE RELEVANT PREVIOUS YEAR AMOUNTING TO RS. 1 67 20 31 5/- WAS OUT OF THE INTEREST AMOUNTS DISALLOWED IN THE EARLI ER YEAR FOR WHICH NO DEDUCTION WAS CLAIMED IN THOSE YEARS AND CONSEQUENTLY NO ADDITION WAS CALLED FOR IN THE IMPU GNED ASSESSMENT YEAR. IN VIEW OF THE ABOVE IT IS RESPECTFULLY SUBMITTED THAT THE ALLEGATION OF THE AO THAT THE APPELLANT HAD FAILED TO ESTABLISH THE DISALLOWANCE OF THE SAID AMOUNT IN THE EARLIER YEAR IS NOT WELL FOUNDED AND THEREFORE THE ADDITION MADE U/S 41(1) OF THE ACT IS LIABLE TO BE DELETED. 7. CONSIDERING THE ABOVE MENTIONED SUBMISSIONS AND GOING THROUGH THE DETAILS FURNISHED BY THE ASSESSEE LD. CIT(A) HA S DELETED THE ADDITION ON MERITS WITH THE FOLLOWING OBSERVATIONS: - I HAVE GONE THROUGH THE ASSESSMENT ORDER AND SUBMI SSIONS MADE BY THE ASSESSEE. IT APPEARS THAT LD. AO HAS M IS- APPRECIATED THE FACTS. THE ASSESSEE HAS SUBMITTED BEFORE LD. AO ALL THE FACTS AND DOCUMENTS SHOWING ADDITION S MADE IN EARLIER YEARS ON ACCOUNT OF NON-PAYMENT OF INTER EST. PAGES NO. 44 TO 56 OF PAPER BOOK CLEARLY SHOWS THAT INTEREST DEBITED TO PROFIT AND LOSS ACCOUNT IN EARLIER YEARS HAS BEEN 8 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 DISALLOWED U/S 43B OF THE ACT IN THE RETURN OF INCO ME OF RESPECTIVE PREVIOUS YEARS ON ACCOUNT OF NON-PAYMENT OF INTEREST. AN AMOUNT OF RS. 43281421 WAS REPORTED B Y THE AUDITOR IN ANNEXURE XI OF TAX AUDIT REPORT FOR THE PREVIOUS YEAR 2001-02 AS INTEREST LIABILITY PRE EXISTING ON FIRST DAY OF PREVIOUS YEAR. OUT OF THE ABOVE PRE-EXISTED INTERE ST LIABILITY OF RS. 43281421 THE FINANCIAL INSTITUTIONS HAS WAI VED OFF INTEREST AMOUNTING TO RS. 16720315 UNDER THE DEBT RESTRUCTURING PROPOSAL WHICH WAS CREDITED TO PROFIT AND LOSS ACCOUNT BY REDUCING THE INTEREST EXPENSES. THEREFO RE TO SSET OFF CREDIT OF RS. 16720315 THE ASSESSEE HAS R IGHTLY CLAIMED RS. 16720315 AS A DEDUCTION IN THE COMPUTAT ION OF INCOME. IN VIEW OF THE ABOVE FACTS THE ADDITION OF RS. 167201315 MADE BY LD. AO IS HEREBY DELETED. 8. SO AS IT RELATES TO INVALIDITY OF REASSESSMENT P ROCEEDINGS IT WAS THE CASE OF THE ASSESSEE THAT DURING THE ORIGINAL A SSESSMENT PROCEEDINGS THE AO HAS EXAMINED ALL THE DETAILS AN D HE DID NOT MAKE ANY ADDITION. REFERENCE WAS MADE TO THE DOCUMENTAR Y EVIDENCE PRODUCED BY THE ASSESSEE BEFORE AO IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND REFERENCE INTER-ALIA WAS MADE TO TH E DECISIONS OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KEL VINATOR OF INDIA 256 ITR 1 (DEL.) (FB) AND CIT VS. EICHER LTD. 294 ITR 3 10 (DEL). UPON THE SUBMISSIONS THE FINDINGS OF LD. CIT(A) ARE AS UNDER : - IN VIEW OF THE ABOVE SAID SUBMISSION I HAVE OBSERV ED THAT BOTH THE ISSUES VIZ. (I) WAIVER OF INTEREST LIABIL ITY OF RS. 1 67 20 315 PERTAINING TO EARLIER YEAR AND (II) PRO VISION FOR GRATUITY AND SUPERANNUATION FUND HAVE BEEN DISCUSS ED DURING THE PROCEEDINGS OF ORIGINAL ASSESSMENT AND I T IS THESE SUBMISSIONS AND INFORMATION WHICH LED THE AO TO RE- OPEN 9 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 THE CASE AND NO OTHER ADDITIONAL INFORMATION HAS BE EN FURNISHED DURING THE IMPUGNED ASSESSMENT. THE AFOR ESAID SHOWS THAT THE IMPUGNED PROCEEDINGS WERE INITIATED ON THE BASIS OF CHANGE OF OPINION OF THE ASSESSING OFFICER FORMED AT THE TIME OF ORIGINAL ASSESSMENT BY RE-VISITING/RE- EXAMINING THE SAME INFORMATION/DETAILS. RE-ASSESSMENT PROCEE DINGS INITIATED ON THE BASIS OF CHANGE OF OPINION IS BAD IN LAW AS HAS BEEN REPEATED ENUNCIATED BY SEVERAL COURTS RELI ED UPON BY THE ASSESSEE. HOWEVER AS NO ADDITIONS ARE SUST AINED ON THE MERITS OF THE CASE THE ISSUE OF ASSUMPTION OF JURISDICTION OF ASSESSMENT U/S 147 OF THE ACT IS PURELY ACADEMIC IN NATURE WHICH DOES NOT REQUIRE SPECIFIC ADJUDICATION . 9. LD. DR RELIED ON THE ORDER OF AO AND PLEADED THA T IN ABSENCE OF DETAILS AO DID NOT HAVE ANY OPTION EXCEPT TO ADD TH E SAID AMOUNT TO THE INCOME OF ASSESSEE AS ASSESSEE FAILED TO PROVE THAT THE AMOUNT IN EARLIER YEARS WAS DISALLOWED U/S 43B. THUS HE PLE ADED THAT ADDITION HAS WRONGLY BEEN DELETED BY CIT(A) AND HIS ORDER ON THIS ISSUE SHOULD BE SET ASIDE AND THAT OF AO BE RESTORED. 10. ON THE ISSUE OF INVALIDITY OF REASSESSMENT PROC EEDINGS HE SUBMITTED THAT CIT(A) DID NOT ADJUDICATE THIS ISSUE AND ASSESSEE ALSO DID NOT FILE ANY APPEAL. IF AT ALL IF THIS ISSUE IS BE ING CONSIDERED BY THE TRIBUNAL THEN THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF CIT(A) FOR RECORDING THE FINDINGS AS HE HAS STATED THAT IT IS ACADEMIC. 11. ON THE OTHER HAND IT WAS SUBMITTED BY LD. AR T HAT LD. CIT(A) AFTER GOING THROUGH THE DETAILS HAS CLEARLY RECORDED A FI NDING THAT 10 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 REASSESSMENT PROCEEDINGS ARE BASED ON CHANGE OF OP INION. DESPITE RECORDING SUCH FINDINGS HE DID NOT ADJUDICATE ON TH E GROUND THAT THE ISSUE IS ACADEMIC AS THE ADDITION HAS BEEN DELETED ON MERITS. HE SUBMITTED THAT THIS ISSUE IS NOT ACADEMIC. AFTER H AVING RECORDED A FINDING THAT ASSESSMENT IS BASED ON CHANGE OF OPIN ION LD. CIT(A) SHOULD HAVE DECIDED THE ISSUE REGARDING INVALIDITY OF REASSESSMENT AS THE SAME ACCORDING TO WELL ESTABLISHED LAW IF REAS SESSMENT PROCEEDINGS ARE BASED ON CHANGE OF OPINION THEN THE REASSESSM ENT PROCEEDING CANNOT BE HELD VALID. 12. ON MERITS RELYING ON THE CONTENTION RAISED BEFO RE CIT(A) AND AO AND FINDINGS RECORDED BY CIT(A) IT WAS SUBMITTED B Y LD. AR THAT ADDITION HAS RIGHTLY BEEN DELETED AND ORDER OF CIT(A) ON THA T ACCOUNT SHOULD BE UPHELD. 13. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. WE HAVE OBSERVED THAT A FTER GOING THROUGH THE SUBMISSIONS OF THE ASSESSEE AND AFTER PERUSING THE DOCUMENTS PLACED BY ASSESSEE IN THE PAPER BOOK LD. CIT(A) HA S COME TO A CONCLUSION THAT THE ISSUE REGARDING LIABILITY OF RS . 1 60 20 315/- WAS CONSIDERED BY THE AO IN THE ORIGINAL ASSESSMENT PRO CEEDING AND AFTER GOING THROUGH ALL THESE DETAILS LD. CIT(A) HAS OBSE RVED THAT THE REASSESSMENT PROCEEDINGS ARE BASED ON MERE CHANGE OF OPINION. IN OUR OPINION AFTER HAVING RECORDED THAT THE REASSESS MENT WAS BASED ON CHANGE OF OPINION LD. CIT(A) SHOULD HAVE HELD TH AT REASSESSMENT 11 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 PROCEEDINGS WERE INVALID AS THE SAME WOULD BE IN AC CORDANCE WITH THE DECISIONS OF HONBLE JURISDICTIONAL HIGH COURT AS W ELL AS HONBLE APEX COURT IN THE FOLLOWING CASES: - 1. CIT VS. KELVINATOR OF INDIA (DEL) (SUPRA) 2. CIT VS. EICHER LTD. (DEL) (SUPRA) 3. CIT VS. KELVINATOR OF INDIA LTD. (SC) (SUPRA) NO MATERIAL HAS BEEN BROUGHT ON RECORD TO CONTROVER T THE FINDINGS OF LD. CIT(A) THAT THE REASSESSMENT PROCEEDINGS ARE BASED ON CHANGE OF OPINION. THEREFORE WE HOLD THAT REASSESSMENT PRO CEEDINGS IN THE PRESENT CASE ARE BAD IN LAW AND OUR SUCH CONCLUSION IS SUPPORTED BY ABOVE MENTIONED THREE DECISIONS. 14. NOW COMING TO THE MERITS IN OUR OPINION WHERE THE CONTENTION OF THE ASSESSEE COULD BE VERIFIED FROM THE ASSESSMSENT RECORDS LYING WITH AO THE CONTENTION CANNOT BE REJECTED WITHOUT VERIF YING THE SAME FROM THE RECORD MERELY ON THE GROUND THAT THE BURDEN WAS ON THE ASSESSEE. THEREFORE THE AO WAS WRONG IN MAKING THE ADDITION BY MERELY STATING THAT BURDEN IS ON ASSESSEE PARTICULARLY WHEN THE FI GURE SUBMITTED BY THE ASSESSEE AND CONTENTION RELATING THERETO COULD BE V ERIFIED FROM THE ASSESSMENT RECORD LYING WITH THE DEPARTMENT. ON TH E BASIS OF THOSE DOCUMENTS LD. CIT(A) HAS COME TO A CONCLUSION THAT IN EARLIER YEARS THE SAID AMOUNT WAS DISALLOWED U/S 43B HENCE THE CONDI TIONS LAID DOWN TO ADD CERTAIN AMOUNT U/S 41(1) WERE NOT FULFILLED. T HEREFORE NO SUCH ADDITION COULD BE MADE. THE FIGURES HAVE BEEN DESC RIBED IN THE ABOVE PART OF THIS ORDER WHICH CLEARLY SHOWS THAT IN EAR LIER YEARS THE SAID 12 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 AMOUNT WAS NOT ALLOWED TO THE ASSESSEE AS A DEDUCTI ON. THEREFORE ON MERITS ALSO LD. CIT(A) IS RIGHT IN HOLDING THAT NO SUCH ADDITION COULD BE MADE U/S 41(1) OF THE ACT. THE DEPARTMENT HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SUGGEST THAT SUCH FINDINGS OF LD. CIT( A) WHICH ARE FINDINGS OF FACT ARE CONTRARY TO THE RECORD. THEREFORE WE DECLINE TO INTERFERE IN THE DELETION MADE BY CIT(A) ON MERITS. 15. AS ON LEGAL ISSUE WE HAVE HELD THAT REASSESSME NT PROCEEDINGS WERE NOT VALID AND THIS GROUND COULD EVEN BE ADJUDI CATED AS CONTENDED BY LD. AR UNDER RULE 27 OF INCOME TAX APPELLATE TR IBUNAL RULES 1963. THEREFORE IT WILL NOT BE PROPER TO DECLINE THE CON DONATION FILED REQUEST OF THE ASSESSEE FOR FILING CROSS OBJECTIONS. THE REQU EST OF ASSESSEE FOR CONDONATION OF DELAY IS ACCEPTED AND CROSS OBJECTIO NS AS PER DISCUSSION IN THE ABOVE MENTIONED PART OF THIS ORDER ARE ALLOW ED. 16. IN VIEW OF ABOVE DISCUSSION DEPARTMENTAL APPEA L IS DISMISSED AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.02.2010 (G.E. VEERABHADRAPPA) VICE PRESIDENT (I.P. BANSAL) JUDICIAL MEMBER DATED: .. *KAVITA 13 ITA NO. 709/DEL/2009 & CO NO. 298/DEL/09 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR