DCIT CIR. - 21(2), MUMBAI v. M/s. SUYASH CHEMICALS, MUMBAI

ITA 3007/MUM/2007 | 2000-2001
Pronouncement Date: 29-01-2010 | Result: Dismissed

Appeal Details

RSA Number 300719914 RSA 2007
Assessee PAN AAAFS6340M
Bench Mumbai
Appeal Number ITA 3007/MUM/2007
Duration Of Justice 2 year(s) 9 month(s) 10 day(s)
Appellant DCIT CIR. - 21(2), MUMBAI
Respondent M/s. SUYASH CHEMICALS, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 29-01-2010
Date Of Final Hearing 08-12-2009
Next Hearing Date 08-12-2009
Assessment Year 2000-2001
Appeal Filed On 18-04-2007
Judgment Text
INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E BEFORE R.K.PANDA ACCOUNTANT MEMBER AND SHRI V.DURGA RAO JUDICIAL MEMBER ITA NOS.3007 3008 3009(MUM)/2007 (ASSESSMENT YEARS: 2000-01 2001-02 & 2003-04) DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE 21(2) MUMBAI. APPELLANT VS. M/S.SUYASH CHEMICALS 109-D MAHENDRA INDL. ESTATE 3 RD FLOOR ROAD NO.29 MUMBAI-400 022. PAN AAAFS 6340M RESPONDENT C.O.NO. 255(MUM)/2007 (IN ITA NOS.3009(MUM)/2007) (ASSESSMENT YEARS: 2003-04) AND CROSS OBJN.NOS.67(MUM)/2009 & 254(MUM)/2007 (IN ITA NOS.3007 & 3008(MUM)/2007) (ASSESSMENT YEARS: 2000-01 AND 2001-02) M/S.SUYASH CHEMICALS MUMBAI. CROSS OBJECTOR VS. DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE 21(2) MUMBAI. RESPONDENT REVENUE BY : SHRI KESHAV SAXENA. ASSESSEE BY : SHRI VIJAY MEHTA. O R D E R PER V.DURGA RAO JM: ALL THESE APPEALS FILED BY THE REVENUE AND THE CROS S OBJECTIONS BY THE ASSESSEE ARE DIRECTED AGAINST THE CONSOLIDATED ITA 3007 TO 3009/MUM/2007 PAGE 2 OF 12 ORDER OF THE CIT(APPEALS) DATED 6-2-2007 FOR ASSESS MENT YEARS 2000-01 2001-02 & 2003-04. AS COMMON POINTS ARE I NVOLVED ALL THESE CASES WERE HEARD TOGETHER AND A CONSOLIDA TED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE. 2. ITA NO.3009(MUM)/2007 (ASSESSMENT YEAR 2003-04): THE REVENUE HAS RAISED THE FOLLOWING GROUND OF APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN DIRECTING THE AO TO ALLOW DEDUCTION U/S 80HHC WITHOUT REDUCING THE DEDUCTION U/S 80IB OF THE IT ACT. 2(I) BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN MANUFACTURING BULK DRUGS AND CHEMICALS AT ITS FA CTORY IN MIDC TARAPURE. THE ASSESSEE CLAIMED DEDUCTION U/SS.80IA AND 80HHC(1) OF THE INCOME-TAX ACT 1961 [HEREINAFTER R EFERRED TO AS THE ACT] AS A SUPPORTING MANUFACTURER ON THE BASIS OF DISCLAIMER CERTIFICATE ISSUED BY M/S.AARTI DRUGS LT D. THE AO WAS OF THE OPINION THAT DEDUCTION U/S 80IA HAS TO BE GI VEN ONLY AFTER ALLOWING DEDUCTION U/S 80HHC ON A PRIORITY BASIS AN D IT SHOULD BE ALLOWED ON THE REMAINDER AMOUNT OF PROFIT OF THE BU SINESS. ON APPEAL THE CIT(APPEALS) DIRECTED THE AO TO COMPUTE DEDUCTIONS U/S 80HHC AND 80IA SEPARATELY ON STAND ALONE BASIS. BEING AGGRIEVED REVENUE IS IN APPEAL BEFORE US. 2(II) AT THE TIME OF HEARING BOTH SIDES AGREED THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED IN FAVOUR OF REVENUE BY THE DECISION OF THE ITAT DELHI C SPEC IAL BENCH IN ITA 3007 TO 3009/MUM/2007 PAGE 3 OF 12 THE CASE OF ACIT VS. HINDUSTAN MINT & AGRO PRODUCTS PVT. LTD. REPORTED IN (2009)(119 ITD 107). 2(III) WE HEARD BOTH SIDES AND PERUSED MATERIAL ON RECORD. IN THE CASE OF HINDUSTAN MINT & AGRO PRODUCTS PVT. LTD. (SUPRA) ITAT DELHI C SPECIAL BENCH HAD OCCASION TO CONSI DER A SIMILAR QUESTION AND HAVE CONCLUDED THAT: 37. WE ACCORDINGLY HOLD THAT DEDUCTION TO BE ALLOWED UNDER ANY OTHER PROVISIONS OF CHAPTER VI-A WITH THE HEAD C IS TO BE REDUCED BY AMOUNT OF DEDUCTION ALLOWED UNDER SECTION 80IB/80IA OF THE ACT. WE ANSWER THE QUESTION REFERRED TO THE SPECIAL BENCH IN THE AFFIRMATIVE I.E. IN FAVOUR OF THE REVENUE. 2(IV) RESPECTFULLY FOLLOWING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE ABOVE MENTIONED CASE WE SET ASIDE THE ORDER OF THE CIT(APPEALS) ON THIS ISSUE AND RES TORE THE MATTER TO THE AO TO FOLLOW THE AFORESAID DECISION O F THE SPECIAL BENCH AND PASS FRESH ORDER IN ACCORDANCE WITH LAW A FTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2(V) IN THE RESULT THE APPEAL FILED BY THE REVENU E IS ALLOWED. 3. C.O.NO.255/MUM/2009 (ASSESSMENT YEAR: 2003-04): GROUND NO.1 IS GENERAL IN NATURE AND DOES NOT REQUI RE ADJUDICATION. GROUND NOS.3 RELATING TO DISALLOWANCE OF MISCELLANEOUS EXPENSES AND GROUND NO.4 RELATING TO INCLUSION OF SALE OF SCRAP OF TURNOVER FOR COMPUTING DEDUCTION U /S 80HHC ITA 3007 TO 3009/MUM/2007 PAGE 4 OF 12 WERE NOT PRESSED BY THE LEARNED COUNSEL FOR ASSESSE E AT THE TIME OF HEARING. HENCE THE SAME ARE DISMISSED AS NOT P RESSED. 3(I) GROUND NO.2 RELATES TO DISALLOWANCE OF COMMISS ION OF RS.1 00 000/-. THE AO NOTICED THAT ALMOST HALF OF I TS SALES OF ITS MANUFACTURED DRUGS ARE MADE TO SISTER CONCERN M/S.A ARTI DRUGS LTD. FOR ONWARD EXPORT TO VARIOUS OVERSEAS CLIENTS . THE ASSESSEE ALSO PURCHASED BULK OF RAW MATERIAL AS WELL AS TRAD ING ITEMS FROM M/S.AARTI DRUGS LTD. (SISTER CONCERN). THE ASSESS EE HAD PAID SALES COMMISSION OF RS.23 09 263/- TO ITS SISTER CO NCERN M/S.AARTI DRUGS LTD. THE AO WAS OF THE OPINION THA T THE ASSESSEE IS NOT FOLLOWING ANY CONSISTENT OR UNIFORM PATTERN FOR MAKING COMMISSION PAYMENT WHICH RANGES FROM 2 TO 5% AND SOME TIMES THE COMMISSION HAS BEEN PAID AT A FLAT R ATE ON THE TOTAL AMOUNT OF SALE IRRESPECTIVE OF QUANTUM OF GOO DS SOLD. SO THE AO DISALLOWED RS.1 LAKH OUT OF RS.23 09 263/-ON AN ESTIMATE BASIS TREATING THE SAME AS EXCESSIVE AND UNREASONAB LE PAYMENT OF COMMISSION TO A SISTER CONCERN U/S 40A(2) OF THE IT ACT. ON APPEAL THE CIT(APPEALS) CONFIRMED THE ADDITION. BE ING AGGRIEVED ASSESSEE IS IN CROSS OBJECTIONS. 3(II) THE LEARNED COUNSEL FOR ASSESSEE SUBMITTED TH AT ALL THE DETAILS WITH REGARD TO PAYMENT OF COMMISSION HA VE BEEN FILED BEFORE THE AO AND THE AO WITHOUT CONSIDERING THE M ATERIAL FILED BY THE ASSESSEE DISALLOWED RS.1 LAKH ON ESTIMATE B ASIS. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESENTATIVE SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW. ITA 3007 TO 3009/MUM/2007 PAGE 5 OF 12 3(III) WE HAVE HEARD BOTH SIDES AND PERUSED MATERIA L ON RECORD. WE ARE OF THE OPINION THAT IN THE INTEREST S OF JUSTICE THE MATTER SHOULD GO BACK TO THE AO FOR FRESH ADJUDICAT ION. THEREFORE WE REMIT THE MATTER TO THE AO AND DIRECT HIM TO CONSIDER ALL THE MATERIAL FURNISHED BEFORE HIM AND PASS FRESH ORDERS IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THA T THE ASSESSEE SHALL BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 3(IV) IN THE RESULT CROSS OBJECTIONS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 4. C.O. NOS.67(MUM)/2009 & 254(MUM)/2007 (ASSESSMENT YEARS: 2000-01 & 2001-02) : IT IS SEEN FROM RECORDS THAT THERE IS A DELAY OF 30 DAYS IN FILING CROSS OBJECTIONS FOR THE ASSESSMENT YEAR 2000-01. THE ASSESSEE HAS F ILED AN AFFIDAVIT STATING THAT IT HAD RECEIVED FROM NO.36 F OR ASSESSMENT YEARS 2001-02 AND 2003-04 AND NOT FOR ASSESSMENT YE AR 2000- 01 AND WAS IN THE PROCESS OF OBTAINING FORM NO.36. IT IS ALSO STATED THAT THE ASSESSEE HAD CLOSED ITS BUSINESS AN D CURRENTLY THERE ARE NO EMPLOYEES. THE ASSESSEE HAD FURTHER S TATED THAT THE DELAY IN FILING WAS DUE TO OVERSIGHT AND ONLY W HEN IT WAS REFERRED TO THE TAX CONSULTANT HE POINTED OUT THAT CROSS OBJECTION FOR ASSESSMENT YEAR 2001-01 WAS NOT FILED WHEREIN THE ISSUE IS SAME AS IN ASSESSMENT YEAR 2001-02 AND 200 3-04. WE ARE SATISFIED THAT THERE IS A REASONABLE CAUSE FOR NOT FILING THE CROSS OBJECTIONS IN TIME. HENCE WE CONDONE THE DEL AY AND ADMIT THE CROSS OBJECTIONS FOR ASSESSMENT YEAR 2001-01. ITA 3007 TO 3009/MUM/2007 PAGE 6 OF 12 4(I) THE ONLY COMMON GROUND RAISED IN THE CROSS OBJECTIONS FOR ASSESSMENT YEARS 2000-01 AND 2001-02 IS THAT THE CIT(APPEALS) IS NOT JUSTIFIED IN UPHOLDING THE VALI DITY OF THE REASSESSMENT PROCEEDINGS. BRIEF FACTS OF THE CASE ARE THE ORIGINAL ASSESSMENT U/S 143(3) OF THE ACT FOR THE A SSESSMENT YEAR 2000-01 WAS COMPLETED ON 28-10-2002 DETERMININ G THE TOTAL INCOME OF THE ASSESSEE AT RS.16 79 726/- AFTE R ALLOWING DEDUCTIONS U/S 80HHC AND 80IA OF RS.1 95 03 214/- A ND RS.27 50 506/- RESPECTIVELY. SUBSEQUENTLY THE ORIGI NAL ASSESSMENT WAS REOPENED U/S 147 BY ISSUE OF NOTICE U/S 148 OF THE ACT ON 4-1-2005. THE REASONS FOR REOPENING ARE THAT DEDUCTIONS 80HHC AND 80IA HAVE BEEN GIVEN SIMULTANE OUSLY FROM THE SAME AMOUNT OF BUSINESS PROFITS AS PER THE ASSESSEES CLAIM INSTEAD OF FIRST REDUCING THE PROFIT OF THE B USINESS BY THE QUANTUM OF DEDUCTION GRANTED UNDER SUB-SECTION (9) OF SECTION 80HHC BEFORE GRANTING DEDUCTION U/S 80IA ON THE BAL ANCE AMOUNT OF BUSINESS PROFIT. THIS HAS ESCAPED THE AT TENTION OF THE AO WHILE FRAMING THE ASSESSMENT ORDER LEADING TO DI SALLOWANCE OF EXCESS DEDUCTION UNDER CHAPTER VIA OF THE ACT TO THE EXTENT OF RS.16 42 948/- AND RESULTING IN SHORT LEVY OF TAX O F RS.6.5 LAKHS. IN RESPONSE TO NOTICE ISSUED BY THE AO THE ASSESSE E EXPLAINED THAT THE CLAIM MADE BY IT IS BONA FIDE AND INVOKING OF THE PROVISIONS OF SECTION 147 IS NOT WARRANTED. THE AO DID NOT AGREE WITH THE CONTENTIONS OF THE ASSESSEE. HE REOPENED THE ASSESSMENT AND PASSED RE-ASSESSMENT ORDER. SIMILAR LY FOR ASSESSMENT YEAR 2001-02 ASSESSMENT WHICH WAS COMPL ETED U/S ITA 3007 TO 3009/MUM/2007 PAGE 7 OF 12 143(3) OF THE ACT WAS REOPENED AND RE-ASSESSMENT O RDER PASSED. 4(II) THE ASSESSEE CARRIED THE MATTER IN APPEAL BEF ORE THE CIT(APPEALS) BEFORE WHOM IT WAS SUBMITTED THAT THE AO HAS ALREADY TAKEN A STAND AND HE CANNOT INVOKE RE-ASSES SMENT PROCEEDINGS TO MODIFY HIS STAND WHICH WOULD AMOUNT TO CHANGE OF OPINION. THIS IS NOT PERMISSIBLE UNDER THE ACT. HOWEVER THE CIT(APPEALS) UPHELD THE REOPENING OF ASSESSMENT BY OBSERVING THAT THE AO HAS NOT CONSIDERED THE ISSUE OF ALLOWAN CE OF DEDUCTION U/S 80HHC AND 80IA IN THE ORIGINAL ASSESS MENT. 4(III) BEING AGGRIEVED ASSESSEE IS IN CROSS OBJECT IONS FOR ASSESSMENT YEARS 2000-01 AND 2001-02. LEARNED COUNS EL FOR ASSESSEE SUBMITTED THAT THE ORIGINAL ASSESSMENT WAS MADE U/S 143(3) OF THE ACT. THE ASSESSEE HAD SUBMITTED ALL THE DETAILS REGARDING ITS CLAIM OF DEDUCTION U/S 80HHC AND 80IA . IN THIS CONNECTION THE LEARNED COUNSEL FOR ASSESSEE DREW O UR ATTENTION TO THE PAPER BOOK CONTAINING THE COMPUTATION OF INC OME FILED BY HIM. THE AO AFTER CONSIDERING ALL THE MATERIAL ALL OWED THE CLAIM OF THE ASSESSEE. LEARNED COUNSEL FOR ASSESSEE FURT HER SUBMITTED THAT THE REOPENING OF ASSESSMENT CANNOT BE DONE SUB SEQUENTLY ON THE GROUND THAT THE AO HAS NOT APPLIED HIS MIND AT THE TIME OF MAKING ORIGINAL ASSESSMENT. NO NEW MATERIAL OR I NFORMATION HAS COME TO THE NOTICE OF THE AO. THE AO AFTER FO RMING OPINION ALLOWED THE CLAIM OF THE ASSESSEE. CHANGING OF OPI NION ON SAME SET OF FACTS IS NOT PERMISSIBLE UNDER THE ACT. ONC E ASSESSMENT IS COMPLETED U/S 143(3) IT IS DEEMED THAT THE AO HAS APPLIED HIS ITA 3007 TO 3009/MUM/2007 PAGE 8 OF 12 MIND AND ALLOWED THE CLAIM OF THE ASSESSEE. LEARNE D COUNSEL FOR ASSESSEE RELIED ON THE JUDGMENT OF THE JURISDICTION AL HIGH COURT IN THE CASE OF ASIAN PAINTS LTD. VS. DCIT(2009)(306 ITR 195). 4(IV) ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT AT THE TIME OF ORIGIN AL ASSESSMENT THERE WAS NO APPLICATION OF MIND. ONCE THE AO HAS NOT APPLIED HIS MIND IT IS OPEN FOR HIM TO FORM OPINION AND RE OPEN THE ASSESSMENT. HE SUPPORTED THE ORDERS OF THE AUTHORI TIES BELOW. 5 WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MATE RIAL ON RECORD. WE FIND THAT NO NEW FACTS OR INFORMATIO N HAS COME TO THE NOTICE OF THE AO AFTER THE COMPLETION OF ASSESS MENT U/S 143(3) OF THE ACT. THEREFORE ONCE THE AO PASSED TH E ASSESSMENT ORDER U/S 143(3) IT IS DEEMED THAT THE AO HAS ALREA DY APPLIED HIS MIND AND AFTER FORMING THE OPINION THE CLAIM OF THE ASSESSEE IS ALLOWED. IT CANNOT BE SAID THAT THE AO HAS NOT APPL IED HIS MIND. IN THE CASE OF ASIAN PAINTS LTD. (SUPRA) THE JURISDICTIONAL HIGH COURT OBSERVED AS UNDER: . . . . .THE QUESTION IS CAN RESPONDENT NO. 1 TA KE RECOURSE TO THE PROVISION OF S. 147 FOR HIS OWN FAI LURE TO APPLY HIS MIND TO THE MATERIAL WHICH ACCORDING TO HIM IS RELEVANT AND WHICH WAS AVAILABLE ON RECORD. WE FIND THAT THIS SITUATION HAS BEEN CONSIDERED BY THE FULL BENCH OF THE DELHI HIGH COURT IN ITS JUDGMENT IN TH E CASE OF CIT VS. KELVINATOR OF INDIA LTD. (2002) 174 CTR (DEL)(FB) 617 : (2002) 256 ITR 1 (DEL)(FB) AND THE FULL BENCH HAS OBSERVED THUS : ITA 3007 TO 3009/MUM/2007 PAGE 9 OF 12 'THE SAID SUBMISSION IS FALLACIOUS. AN ORDER OF ASSESSMENT CAN BE PASSED EITHER IN TERMS OF SUB- S. (1) OF S. 143 OR SUB-S. (3) OF S. 143. WHEN A REGULAR ORDER OF ASSESSMENT IS PASSED IN TERMS OF THE SAID SUB-S. (3) OF S. 143 A PRESUMPTION CAN BE RAISED THAT SUCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND. IT IS WELL KNOWN THAT A PRESUMPTION CAN ALSO BE RAISED TO THE EFFECT THAT IN TERMS OF CL. (E) OF S. 114 OF THE INDIAN EVIDENC E ACT JUDICIAL AND OFFICIAL ACTS HAVE BEEN REGULARLY PERFORMED. IF IT BE HELD THAT AN ORDER WHICH HAS BEEN PASSED PURPORTEDLY WITHOUT APPLICATION OF MIND WOULD ITSELF CONFER JURISDICTION UPON THE AO TO REOPEN THE PROCEEDING WITHOUT ANYTHING FURTHER THE SAME WOULD AMOUNT TO GIVING A PREMIUM TO AN AUTHORITY EXERCISING QUASI-JUDICIAL FUNCTION TO TAKE BENEFIT OF ITS OWN WRONG.' 9. IT IS CLEAR FROM THE OBSERVATIONS MADE ABOVE THAT THE FULL BENCH OF THE DELHI HIGH COURT HAS TAK EN A VIEW THAT IN A SITUATION WHERE ACCORDING TO THE AO HE FAILED TO APPLY HIS MIND TO THE RELEVANT MATERIAL I N MAKING THE ASSESSMENT ORDER HE CANNOT TAKE ADVANTAGE OF HIS OWN WRONG AND REOPEN THE ASSESSMENT BY TAKING RECOURSE TO THE PROVISIONS OF S. 147. WE FIND OURSELF IN RESPECTFUL AGREEMENT WITH T HE VIEW TAKEN BY THE FULL BENCH OF THE DELHI HIGH COUR T. 10. IT IS FURTHER TO BE SEEN THAT THE LEGISLATURE HAS NOT CONFERRED POWER ON THE AO TO REVIEW ITS OWN ORDER. THEREFORE THE POWER UNDER S. 147 CANNOT BE USED TO REVIEW THE ORDER. IN THE PRESENT CASE THOU GH THE AO HAS USED THE PHRASE 'REASON TO BELIEVE' ADMITTEDLY BETWEEN THE DATE OF THE ORDER OF ASSESSMENT SOUGHT TO BE REOPENED AND THE DATE OF ITA 3007 TO 3009/MUM/2007 PAGE 10 OF 12 FORMATION OF OPINION BY THE AO NOTHING NEW HAS HAPPENED THEREFORE NO NEW MATERIAL HAS COME ON RECORD NO NEW INFORMATION HAS BEEN RECEIVED; IT IS MERELY A FRESH APPLICATION OF MIND BY THE SAME AO T O THE SAME SET OF FACTS AND THE REASON THAT HAS BEEN GIVEN IS THAT THE SOME MATERIAL WHICH WAS AVAILABLE ON RECORD WHILE ASSESSMENT ORDER WAS MADE WAS INADVERTENTLY EXCLUDED FROM CONSIDERATION. THIS WIL L IN OUR OPINION AMOUNT TO OPENING OF THE ASSESSMENT MERELY BECAUSE THERE IS CHANGE OF OPINION. THE FULL BENCH OF THE DELHI HIGH COURT IN ITS JUDGMENT IN TH E CASE OF KELVINATOR (SUPRA) REFERRED TO ABOVE HAS T AKEN A CLEAR VIEW THAT REOPENING OF ASSESSMENT UNDER S. 147 MERELY BECAUSE THERE IS A CHANGE OF OPINION CANNOT BE ALLOWED. IN OUR OPINION THEREFORE IN TH E PRESENT CASE ALSO IT WAS NOT PERMISSIBLE FOR RESPONDENT NO.1 TO ISSUE NOTICE UNDER SECTION 148. THE RATIO LAID DOWN BY THE JURISDICTIONAL HIGH COUR T IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE. IN OUR OPINIO N IN THE PRESENT CASE ALSO IT WAS NOT POSSIBLE FOR THE AO TO ISSUE N OTICE U/S 148. THEREFORE RESPECTFULLY FOLLOWING THE JUDGMENT OF T HE JURISDICTIONAL HIGH COURT IN THE ABOVEMENTIONED CAS E WE HOLD THAT THE AO IS NOT JUSTIFIED IN REOPENING THE ASSES SMENTS FOR ASSESSMENT YEARS 2000-01 AND 2001-02 AND THE CIT(AP PEALS) IS NOT JUSTIFIED IN UPHOLDING THE RE-ASSESSMENT ORDER. THEREFORE WE QUASH THE RE-ASSESSMENT ORDERS PASSED FOR ASSESSMEN T YEARS 2000-01 AND 2001-02. 6. IN THE RESULT THE CROSS OBJECTIONS ARE ALLOWED . ITA 3007 TO 3009/MUM/2007 PAGE 11 OF 12 7. ITA NOS.3007 & 3008(MUM)2007 (ASSESSMENT YEARS: 2000-01 AND 2001-02): THE REVENUE HAS RAISED THE FOLLOWING COMMON AND MATERIAL GROUND OF APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN DIRECTING THE AO TO ALLOW DEDUCTION U/S 80HHC WITHOUT REDUCING THE DEDUCTION U/S 80IB OF THE IT ACT. FACTS IN REGARD TO THE ABOVE GROUND HAVE ALREADY BE EN MENTIONED IN PARA.2 WHILE DEALING WITH REVENUES AP PEAL FOR ASSESSMENT YEAR 2003-04. WHILE THE REVENUE HAS COM E IN APPEAL WITH THE ABOVEMENTIONED GROUND FOR ASSESSMEN T YEARS 2000-01 AND 2001-02 THE ASSESSEE HAS FILED CROSS OB JECTIONS CHALLENGING THE VALIDITY OF RE-ASSESSMENT PROCEEDIN GS U/S 147. WHILE DEALING WITH THE CROSS OBJECTIONS WE HAVE HEL D THAT THE REOPENING OF ASSESSMENTS U/S 147 FOR ASSESSMENT YEA RS 2000-01 AND 2001-02 ARE INVALID AND ACCORDINGLY QUASHED THE REASSESSMENT ORDERS AND THE CIT(APPEALS) ORDER. HE NCE THE APPEALS FILED BY THE REVENUE DO NOT SURVIVE AND ARE ACCORDINGLY DISMISSED. 8. IN THE RESULT THE APPEALS FILED BY THE REVENUE ARE DISMISSED. PRONOUNCED IN OPEN COURT ON 29TH JANUARY 2010. SD/- SD/- (R.K.PANDA) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI : DATED : 29TH JANUARY 2010. EKS* TRUE COPY ITA 3007 TO 3009/MUM/2007 PAGE 12 OF 12 COPY TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. CIT- CONCERNED 4. CIT(A)- CONCERNED 5. DEPARTMENTAL REPRESENTATIVE E BENCH BY ORDER ASST REGISTRAR ITAT MUMBAI