Sunil Kanahaiyalal Gidwani,, Sangli v. Assistant Commissioner of Income-tax, Circle - 2,, Sangli

ITA 302/PUN/2019 | 2005-2006
Pronouncement Date: 01-11-2019 | Result: Allowed

Appeal Details

RSA Number 30224514 RSA 2019
Assessee PAN AFDPG9973Q
Bench Pune
Appeal Number ITA 302/PUN/2019
Duration Of Justice 8 month(s) 8 day(s)
Appellant Sunil Kanahaiyalal Gidwani,, Sangli
Respondent Assistant Commissioner of Income-tax, Circle - 2,, Sangli
Appeal Type Income Tax Appeal
Pronouncement Date 01-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 01-11-2019
Date Of Final Hearing 04-09-2019
Next Hearing Date 04-09-2019
Last Hearing Date 04-09-2019
First Hearing Date 28-03-2019
Assessment Year 2005-2006
Appeal Filed On 21-02-2019
Judgment Text
] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC PUNE BEFORE SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER . / ITA NOS.302 TO 304/PUN/2019 / ASSESSMENT YEARS : 2005-06 TO 2007-08 SUNIL K A NAHAIYALAL GIDWANI PLOT NO.302 ASHIRWAD BUNGLOW SHIVAJI PARK SAHYADRI NAGAR SANGLI. PAN : AFDPG9973Q. . / APPELLANT V/S THE ASST.COMMISSIONER OF INCOME TAX CIRCLE 2 SANGLI. . / RESPONDENT ASSESSEE BY : SHRI SUNIL GANOO. REVENUE BY : SHRI RAJEEV MATHUR. / ORDER PER ANIL CHATURVEDI AM : 1. THESE APPEALS FILED BY THE ASSESSEE ARE EMANATING OUT OF THE CONSOLIDATED ORDER OF COMMISSIONER OF INCOME TAX (A) 1 K OLHAPUR DATED 27.11.2018 FOR THE ASSESSMENT YEARS 2005-06 TO 2007-08. 2. BEFORE ME AT THE OUTSET BOTH THE PARTIES SUBMITTED THAT THOUGH THE APPEALS ARE FOR THREE DIFFERENT ASSESSMENT YEARS BUT THE FACTS AND ISSUES INVOLVED IN ALL THE THREE APPEALS ARE IDENTICAL EXCEPT FOR T HE ASSESSMENT YEARS AND THE AMOUNTS INVOLVED AND THEREFORE THE SUBMISSIONS M ADE BY THEM WHILE ARGUING ONE APPEAL WOULD BE EQUALLY APPLICABLE TO THE OTHE R APPEALS ALSO AND THUS ALL THE THREE APPEALS CAN BE HEARD TOGETHER. IN V IEW OF THE AFORESAID SUBMISSIONS OF BOTH THE PARTIES I FOR THE SAKE OF CONVENIE NCE PROCEED TO / DATE OF HEARING : 10.10.2019 / DATE OF PRONOUNCEMENT: 01.11.2019 2 DISPOSE OF ALL THE THREE APPEALS BY A CONSOLIDATED ORDER BUT HOWEVER PROCEED WITH NARRATING THE FACTS FOR ASSESSMENT YEAR 2 005-06 IN ITA NO.302/PUN/2019. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RE CORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL STATED TO BE HAVING INCOME FROM BUSINESS. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y 2005-06 ON 27. 10.2006 DECLARING TOTAL INCOME OF RS.9 13 090/-. THE RETURN OF INCOME WAS INITIA LLY PROCESSED U/S 143(1) OF THE ACT. THEREAFTER THE CASE WAS REOPENED BY ISSUING NOTICE U/S 148 OF THE ACT DATED 19.03.2012 WHICH WAS SERVED O N THE ASSESSEE ON 21.03.2012. IN RESPONSE TO NOTICE U/S 148 OF THE ACT THE ASSESSE E VIDE LETTER DATED 19.04.2012 SUBMITTED THAT THE RETURN OF INCOME FILE D BY HIM ON 27.10.2005 BE TREATED AS RETURN OF INCOME IN RESPONSE T O NOTICE U/S 148 OF THE ACT. THE CASE WAS THEREAFTER TAKEN UP FOR SCRUTINY AND CONSEQUENTLY THE ASSESSMENT WAS FRAMED U/S 143(3) R.W.S 147 OF THE ACT VIDE ORDER DATED 19.03.2013 AND THE TOTAL INCOME WAS DETERMINED AT RS. 15 13 090/-. AGGRIEVED BY THE ORDER OF AO ASSESSEE CARRIED THE MATT ER BEFORE LD.CIT(A) WHO VIDE CONSOLIDATED ORDER FOR A.YS. 2005-06 TO 2007-08 DATED 27.11.2018 (IN APPEAL NO. SLI/219/13-14) GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A) THE ASSESSEE IS NOW IN APPEAL AND HAS RAISED THE FOLLOWING GROUNDS : 1. LEARNED A.O. HAS ERRED IN FACT AND IN LAW IN UPHOLD ING THE REOPENING OF THE ASSESSMENT WITHOUT APPRAISING THAT THERE IS NO VALID SATISFACTION / APPROVAL FOR REOPENING AND REASON RECORDED ARE ARBITRARY. 2. LEARNED CIT (A) HAS ERRED IN FACT AND IN LAW IN CONFIRMING ADDITION U/S.68 OF RS.350000/- IN RESPECT OF LOAN GIVEN BY T HE APPELLANT TO GAJANAN KOLI IN SPITE OF THE FACT THAT THE LOAN IS GIVEN OUT OF TAX PAID INCOME AND DISCLOSED INCOME AND ADDITION AMOUNTS TO DOUBLE ' TAXATION. 3 3. LEARNED CIT (A) HAS ERRED IN FACT AND IN LAW IN CONFIRMING THE VIEW OF THE AO IN TREATING GENUINE BUSINESS INCOME OF THE A PPELLANT OF RS 6 99 960 AS INCOME FROM OTHER SOURCE WITHOUT ANY CO NTRARY EVIDENCE. 4. SIMILAR GROUNDS HAVE BEEN RAISED BY THE ASSESSEE IN I TA NOS.303 & 304/PUN/2019 FOR A.YS. 2006-07 AND 2007-08 RESPECTIVELY. 5. BEFORE ME THE LD AR IN THE 1 ST GROUND OF APPEAL IS CHALLENGING THE VALIDITY OF THE IMPUGNED REASSESSMENT ORDER. 5.1. LD.A.R. SUBMITS THAT THE ORIGINAL RETURN OF INCOME FOR AY 2005-06 WAS FILED BY THE ASSESSEE ON 27.10.2005 AND IT WAS INITIALLY PROC ESSED U/S 143(1) OF THE ACT. THEREAFTER THE NOTICE U/S 148 DATED 19.3.201 2 WAS ISSUED AND SERVED ON THE ASSESSEE ON 21.03.2012. HE SUBMITTED THA T ON RECEIPT OF NOTICE U/S 148 OF THE ACT THE ASSESSEE BEFORE AO HAD RAISE D OBJECTIONS AGAINST THE REOPENING OF THE ASSESSMENT. THE AO VIDE ORDER DATED 15 .02.2013 HAD DISPOSED OF THE OBJECTIONS TO THE REOPENING RAISED BY T HE ASSESSEE BY REJECTING THE OBJECTIONS OF ASSESSEE. UNDISPUTEDLY THE NOTICE U/S 148 OF THE ACT IS ISSUED BEYOND THE PERIOD OF 4 YEARS FROM THE DATE OF AS SESSMENT YEAR IN QUESTION. HE POINTING TO THE COPY OF THE REASONS RECORDE D FOR REOPENING THE ASSESSMENT (A COPY OF WHICH IS PLACED AT PAGE 10 OF THE PAPER BOOK) SUBMITTED THAT THE ALLEGED REASONS ARE ADVANCING OF INTER EST FREE LOANS WITHOUT OBTAINING ANY SECURITY BY THE ASSESSEE TO MR. GA JANAN KOLI WITH WHOM THE ASSESSEE DOES NOT HAVE ANY BUSINESS RELATION. ACCORDING TO THE AO THE SOURCES OF THE AFORESAID INVESTMENT IS NOT PROVED . HE SUBMITTED THAT SIMILAR ARE THE REASONS RECORDED FOR RE-OPENING IN A.Y. 200 6-07 AND 2007-08. HE SUBMITTED THAT IN THE REASONS RECORDED FOR REOPENING THE ASSESSMENT THERE IS NO INDICATION AS TO HOW INCOME OF THE ASSESSEE C HARGEABLE TO TAX HAS ESCAPED ASSESSMENT. HE SUBMITTED THAT FROM THE REASONS RECORDED IT APPEARS THAT THE AO MERELY ON THE BASIS OF SUSPICION AND FOR FURT HER VERIFICATION OF THE 4 TRANSACTION HAS RESORTED TO THE REOPENING. HE SUBMITTED THAT VARIOUS HIGH COURTS HAVE HELD THAT FOR MAKING ROVING/FISHING INQUIRY OR FO R THE PURPOSE OF INVESTIGATION AND WITHOUT THERE BEING A SPECIFIC FINDING OF TH E ESCAPEMENT OF INCOME REOPENING OF ASSESSMENT IS NOT PERMISSIBLE. HE THERE FORE SUBMITTED THAT IN THE PRESENT CASES THERE IS NO REASONABLE BELIEF B Y THE AO OF THE INCOME ESCAPING ASSESSMENT BEFORE ISSUING NOTICE U/S 148 OF THE ACT AND THEREFORE THE REOPENING SHOULD BE HELD TO BE INVALID. HE FU RTHER SUBMITTED THAT THE LOANS GIVEN BY THE ASSESSEE TO SHRI GAJANAN K OLI ARE REFLECTED IN THE BALANCE SHEET OF THE ASSESSEE WHICH WAS FILED BY THE ASSE SSEE ALONG WITH THE ORIGINAL RETURN OF INCOME AND IN SUPPORT OF WHICH HE POINTE D TO THE COPY OF THE BALANCE SHEET PLACED IN THE PAPER BOOK. HE THEREAFTE R SUBMITTED THAT THERE IS NO EVIDENCE OF ESCAPEMENT OF INCOME AND THAT FOR MERE VERIFICATION REASSESSMENT PROCEEDINGS CANNOT BE INITIATED. HE THEREFOR E SUBMITTED THAT THE REASSESSMENT BE HELD TO BE INVALID. HE THEREAFTER S UBMITTED THAT FOR IDENTICAL REASONS THE REOPENING WAS RESORTED BY THE DEP ARTMENT IN THE CASE OF THE FAMILY MEMBERS OF THE ASSESSEE VIZ SHRI KAILASH GIDW ANI SHRI SUNIL GIDWANI AND SHRI AMIT GIDWANI. WHEN THE MATTER IN THEIR CASE S WAS CARRIED BEFORE THE TRIBUNAL THE CO-ORDINATE BENCH OF THE TRIBUNAL VIDE ORDER DATED 11.09.2019 STRUCK DOWN THE INITIATION OF RE-ASSESSMENTS IN THEIR CASES. IN SUPPORT OF HIS AFORESAID CONTENTIONS HE POINTED TO THE OR DER OF THE TRIBUNAL AND ALSO POINTED TO THE RELEVANT PARAS THEREIN WHERE TH E REASONS FOR REOPENING IN THOSE CASES ARE NOTED. HE THEREFORE SUBMITT ED THAT SINCE THE FACTS & CIRCUMSTANCES OF THE PRESENT CASE ARE IDENTICAL T O THAT OF HIS FAMILY MEMBERS THEN FOR THIS REASON ALSO FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH OF THE TRIBUNAL THE REASSESSMENT IN THE CASE OF T HE ASSESSEE FOR ALL THE THREE YEARS BE HELD TO BE INVALID. 5 6. LD DR ON THE OTHER HAND SUBMITTED THAT IN THE PRES ENT CASE ASSESSEE HAD FILED THE RETURN OF INCOME FOR A.Y 2005-06 ON 27.10.2005 DECLARING TOTAL INCOME OF RS.9 13 090/- AND THE SAME WAS PROCESSED U/S 1 43(1) OF THE ACT WITHOUT SCRUTINY. SUBSEQUENTLY AS NOTED BY THE AO IN THE REASON S RECORDED IT WAS FOUND THAT ASSESSEE HAD ADVANCED INTEREST FREE UNS ECURED LOAN TO SHRI GAJANAN KOLI WITH WHOM THE ASSESSEE HAS NO RELATIONSHIP OF ANY NATURE WHATSOEVER. HE SUBMITTED THAT ADVANCING OF UNSECURED INT EREST FREE LOAN TO AN UNRELATED PERSON WAS AGAINST THE NORMAL ACTION OF A N ORMAL BUSINESSMAN. HE SUBMITTED THAT IN SUCH A SITUATION THE SOURCE OF SUC H ADVANCING OF LOAN NEEDS VERIFICATION MORE SO WHEN THE ORIGINAL RETURN OF INC OME WAS SUMMARILY ACCEPTED U/S 143(1) OF THE ACT AND THE AO HAD A REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND T HE AO HAD RIGHTLY REOPENED THE ASSESSMENT IN EXERCISE OF POWER U/S 147/1 48 OF THE I.T ACT. HE THEREFORE SUBMITTED THAT THE AO HAS RIGHTLY ISSUED THE NOTICE U/S 148 OF THE ACT AND THE LD.CIT(A) HAS ALSO RIGHTLY UPHELD THE PROCEE DINGS INITIATED U/S 148 OF THE ACT. HE THUS SUPPORTED THE ORDER OF LOWER AUTHORITIES. 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MA TERIAL ON RECORD ON THE PRELIMINARY ISSUE OF RE-OPENING THE ASSESSMENT. TH E ASSESSEE IN THE PRESENT GROUND IS CHALLENGING THE VALIDITY OF THE REASSESSM ENT PROCEEDINGS U/S 147/148 OF THE ACT. THE LAW ON RE-OPENING OF AN ASS ESSMENT UNDER THE ACT IS FAIRLY SETTLED. THE ASSESSING OFFICER CAN RE-OPEN AN ASSESSMENT ONLY IN ACCORDANCE WITH THE EXPRESS PROVISIONS PROVIDED IN SECTIO N 147/148 OF THE ACT. IT IS ONLY ON THE ASSESSING OFFICER STRICTLY SATISFYING THE PROVISIONS OF SECTION 147 OF THE ACT THAT HE ACQUIRES JURISDICTION TO R E-OPEN AN ASSESSMENT. SECTION 147 OF THE ACT CLOTHES THE ASSESSING OFFICER WITH J URISDICTION TO REOPEN AN ASSESSMENT ON SATISFACTION OF THE FOLLOWING: (A) TH E ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT (B) INCOME CHARGE ABLE TO TAX HAS 6 ESCAPED THE ASSESSMENT AND (C) IN CASES WHERE THE ASS ESSMENT SOUGHT TO BE REOPENED IS BEYOND THE PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR THEN AN ADDITIONAL CONDITION IS TO BE SAT ISFIED VIZ: THERE MUST BE FAILURE ON THE PART OF THE ASSESSEE TO FULLY AND TRULY DISCLOSE ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. THE REQUIREMENT IN THE FIRST PROVISO TO SECTION 147 OF THERE HAVING TO BE A FAILURE ON THE PA RT OF THE ASSESSEE 'TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS' DOES NOT AT ALL A PPLY WHERE THE INITIAL RETURN HAS BEEN PROCESSED UNDER SECTION 143(1) OF THE ACT. 8. IN THE PRESENT CASE IT IS REQUIRED TO BE NOTED THAT BY THE IMPUGNED NOTICE THE ASSESSMENT FOR AY 2005-06 IS SOUGHT TO BE R EOPENED IN EXERCISE OF POWER UNDER SECTION 147 OF THE I.T ACT. THE REASONS RE CORDED TO REOPEN THE ASSESSMENT ARE AS UNDER : ACCORDING TO INFORMATION GATHERED FROM INFORMED SO URCES LOCAL ENQUIRIES AND MEDIA REPORTS IT HAS COME TO BE KNOWN THAT SHR I KARIHAIYALAL GIDWANI OWNS THREE FLATS ONE IN HIS NAME AND TWO IN THE NAMES OF HIS TWO SONS - KAILASH AND AMIT IN .THE AD ARSHA HOUSING SOCIETY. AGAIN ONE FLAT IS LEARNED TO BE BOOKED IN THE NAME OF SHRI GAJANAN S. KOLI WHERE APPARENTLY IT IS BELIEVED TH AT SHRI SUNIL K. GIDWANI SON OF KANHIYALAL GIDWANI HAS LENT FINANC E TO PURCHASE THE SAME. ALL PAYMENTS FOR THE SAME WERE APPARENTLY MA DE THROUGH GIDWANI FAMILY'S VARIOUS BANK ACCOUNTS IN WHICH APP ARENTLY CASH AMOUNTS WERE DEPOSITED AND THE SAME WERE TRANSFERRE D INTO THE ACCOUNTS OF GIDWANI'S WIFE SON AND DAUGHTER-IN-LAW IN HDFC BANK AT WORLI. THEREAFTER THE SAID AMOUNTS WERE APPARENTLY TRANSFERRED INTO THE ACCOUNT OF MS. JAY MAHARASHTRA CPL HFDC BANK WORL I IN WHICH GIDWARIIS SONS ARE DIRECTORS FOR. MAKING PAYMENTS T OWARDS COST OF THE FLATS. ON VERIFICATION IT IS SEEN THAT SHRI SUNIL GIDWANI THE ASSESSEE IS ASSESSED TO INCOME-TAX AND THAT HE HAS ADVANCED IN TEREST-FREE LOANS TO THE EXTENT OF RS 51.3 LAKHS TO SHRI GAJANAN KOLI FOR PURCHASE OF FLAT IN ADARSHA COOP. HOUSING SOCIETY MUMBAI PAYMENTS AS UNDER :- S.NO DATE AMT (RS.) 1 15.07.2004 50 000 2 15.09.2004 3 00 000 3 27.10.2005 9 75 000 4 06.07.2006 5 00 000 5 07.08.2007 5 00 000 6 25.10.2007 10 71 000 7 19.03.2008 5 70 000 8 12.02.2009 11 65 000 51 31 000 7 THE LOAN ADVANCED TO SHRI KOLI IS INTEREST-FREE LOA N AND THERE ARE NO BUSINESS CONNECTION I RELATION BETWEEN SHRI SUNIL G IDWANI AND SHRI GAJANAN KOLI. NO SECURITY OF ANY KIND AGAINST THE L OAN FROM SHRI GAJANAN KOLI IS OBTAINED. IN VIEW OF THE ABOVE AND ON VERIFICATION OF RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2005-06 ALONG WITH ITS ENC LOSURES IT IS REVEALED THAT - (I) DURING THE YEAR UNDER CONSIDERATION THE ASSES SEE HAS GIVEN RS.3 50 000/- TO SHRI GAJANAN S. KOLI TOWARDS INVES TMENT IN ADARSHA CHS THE GENUINENESS OF THE SOURCES OF THIS INVESTMENT IS NOT PROVED. THEREFORE IN VIEW OF THE ABOVE I HAVE REASONS TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX TO THE EXTENT OF RS 350 000 HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 14 7 OF THE I.T. ACT 1961. THUS AS PER THE REASONS NOTED HEREINABOVE THE REASON S RECORDED BY THE AO IS ON THE BASIS OF VERIFICATION OF THE RETURN OF INCOME FILED B Y THE ASSESSEE ALONGWITH WITH THE ENCLOSURES. ACCORDING TO THE AO IT SHO WS THAT ASSESSEE HAS GIVEN LOAN TO SHRI GAJANAN KOLI FOR INVESTMENT IN ADAS RSH CHS THE GENUINENESS OF THE SOURCE OF INVESTMENTS IS NOT PROVED A ND THUS HE HAS REASON TO BELIEVE THAT INCOME CHARGEABLE TO THE EXTENT OF LOAN GIVEN HAS ESCAPED ASSESSMENT. 9. SO FAR AS THE PROPOSITION OF THE LD DR TO THE EFFECT TH AT WHEN A RETURN OF INCOME IS PROCESSED U/S 143(1) OF THE ACT THE REVENUE HAS GREATED LATITUDE IN REOPENING AN ASSESSMENT IS CONCERNED I FULLY AGREE ONLY TO THAT EXTENT WITH THE AFORESAID PROPOSITION BUT AT THE SAME TIM E VARIOUS HIGH COURTS HAVE HELD THAT EVEN IN SUCH CASES WHERE RETUR N OF INCOME IS PROCESSED U/S 143(1) OF THE ACT THE REOPENING OF AN ASS ESSMENT CAN ONLY BE DONE IF THERE IS REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. HERE IT WOULD BE RELEVANT TO REFER TO THE O BSERVATIONS OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ORIENT CRAFT LTD R EPORTED IN [2013] 29 TAXMANN.COM 392 (DELHI) WHEREIN THE HONBLE HIGH COURT HAS OBSERVED THAT THE EXPRESSION REASON TO BELIEVE CANNOT HAVE TWO DIFFERENT STAND ARDS OR SETS OF MEANING ONE APPLICABLE WHERE THE ASSESSMENT WAS EARLIER MADE U/S 8 143(3) OF THE ACT AND THE OTHER APPLICABLE WHERE AN INTIMAT ION WAS EARLIER ISSUED U/S 143(1) OF THE ACT. IT OBSERVED THAT IT IS OPEN TO THE ASSESSEE TO CONTEND THAT NOTWITHSTANDING THAT THE ARGUMENT OF CHA NGE OF OPINION IS NOT AVAILABLE TO HIM IT WOULD STILL BE OPEN TO HIM TO CONTEST THE RE-OPENING ON THE GROUND THAT THERE WAS EITHER NO REASON TO BELIEVE OR T HAT THE ALLEGED REASON TO BELIEVE IS NOT RELEVANT FOR THE FORMATION OF THE BELIEF THAT IN COME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IT FURTHER OBSERVED THAT IN DOING SO IT IS FURTHER OPEN TO THE ASSESSEE TO CHALLENGE THE REASONS RECORDE D U/S 148(2) OF THE ACT ON THE GROUND THAT THEY DO NOT MEET THE STANDARDS S ET IN VARIOUS JUDICIAL PRONOUNCEMENTS. 10. I ALSO FIND THAT VARIOUS HIGH COURTS HAVE HELD THAT FOR A MERE VERIFICATION OF THE CLAIM THE POWER OF REOPENING OF ASSESSMEN T COULD NOT BE EXERCISED. THE HIGH COURTS HAVE ALSO HELD THAT THE AO UN DER THE GUISE OF POWER TO REOPEN AN ASSESSMENT CANNOT SEEK TO UNDERT AKE A FISHING OR ROVING INQUIRY AND SEEK TO VERIFY THE CLAIMS AS IF IT WERE A SCRU TINY ASSESSMENT. HERE THE REFERENCE COULD BE MADE TO THE DECISION OF HONBLE G UJARAT HIGH COURT IN THE CASE OF INDUCTOTHERM (INDIA) P LTD VS. M GOPALAN DCI T REPORTED IN (2013) 356 ITR 481 (GUJ) WHEREIN IT HAS BEEN OBSERVED BY HONBLE HIGH COURT THAT FOR A MERE VERIFICATION OF THE CLAIM THE POWER OF REOP ENING OF ASSESSMENT COULD NOT BE EXERCISED. IT FURTHER OBSERVED THAT THE AS SESSING OFFICER UNDER THE GUISE OF POWER TO REOPEN AN ASSESSMENT CANNOT SEE K TO UNDERTAKE A FISHING OR ROVING INQUIRY AND SEEK TO VERIFY THE CLAIMS AS IF IT WERE A SCRUTINY ASSESSMENT. 11. WHEN THE FACTS OF THE PRESENT CASE IS SEEN IN THE LIGH T OF THE DECISIONS CITED HEREINABOVE I AM OF THE VIEW THAT THE REOPENING IS SOUGHT BY THE AO ON THE BASIS OF THE RETURN OF INCOME FILED BY THE ASSESSEE AN D IS FOR THE PURPOSE OF VERIFICATION OF THE ISSUE AND IS NOT BASED ON ANY TANGIBLE MATERIAL. 9 12. I FURTHER FIND THAT IDENTICAL REASONS WERE RECORDED B Y THE AO FOR REOPENING THE ASSESSMENTS IN THE CASE OF SHRI KILASH KANI YALAL GIDWANI SHRI SUNIL KANHAIYALAL GIDWANI AND SHRI SUNIL KANHIYALAL GIDWANI. WHE N THE REOPENING WAS CHALLENGED BEFORE THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THEIR CASES THE TRIBUNAL VIDE ORDER DATED 11.09.2019 (IT A NO769/PUN/2014) HELD THAT THE AO WAS NOT JUSTIFIED IN TAKING RECOURSE TO THE PROVISIONS OF SEC. 147 OF THE ACT AND IT STUCK DOWN THE INITIATION OF ASSESS MENT PROCEEDINGS AND THE CONSEQUENTIAL ASSESSMENT ORDER PASSED U/S 147 OF THE ACT. 13. CONSIDERING THE TOTALITY OF THE AFORESAID FACTS I AM OF THE VIEW THAT AO IN THE PRESENT CASE WAS NOT JUSTIFIED IN TAKING RECOURSE TO THE PROVISIONS OF S. 147 OF THE ACT AND THEREFORE THE INITIATION OF REASSESSMEN T PROCEEDINGS ARE NOT IN ACCORDANCE WITH LAW. I THEREFORE SET ASIDE THE INITIA TION OF REASSESSMENT PROCEEDINGS AND THE CONSEQUENTIAL ASSESSMENT ORDER. THUS THE GROUNDS OF THE ASSESSEE IN ITA NO.302/PUN/2019 FOR A.Y. 2005-0 6 IS ALLOWED. 14. AS FAR AS THE ISSUE INVOLVED IN ITA NOS.303 AND 304/PU N/2019 FOR A.YS. 2006-07 AND 2007-08 ARE CONCERNED BEFORE ME SINCE BOTH THE PARTIES HAVE SUBMITTED THAT THE ISSUE IN ALL THE THREE YEARS AR E IDENTICAL EXCEPT FOR THE ASSESSMENT YEARS AND THE AMOUNTS INVOLVED AND IN VIEW OF THE AFORESAID SUBMISSION OF BOTH THE PARTIES AND FOR THE REASONS STAT ED HEREIN WHILE DECIDING THE ISSUE FOR A.Y 2005-06 IN ITA NO.302/PUN/2019 AND FOR SIMILAR REASON I SET ASIDE THE REASSESSMENT PROCEEDINGS AND THE CONSEQUENTIAL ORDERS IN BOTH THE YEARS. THUS THE GROUNDS OF ASSESSEE IN ITA NOS.303 & 304/PUN/2019 FOR A.YS. 2006-07 AND 2007-08 RESPECT IVELY ARE ALLOWED. 10 15. SINCE I HAVE HELD THE REASSESSMENT TO BE NOT VALID T HE GROUNDS RAISED ON MERITS HAVE BEEN RENDERED AS ACADEMIC AND THEREFORE REQUIRE NO ADJUDICATION. THUS ALL THE THREE APPEALS OF THE ASSESSEE ARE ALLOW ED. 16. IN THE RESULT ALL THE APPEALS OF ASSESSEE ARE ALLO WED. ORDER PRONOUNCED ON 1 ST DAY OF NOVEMBER 2019. /- SD/- ( ANIL CHATURVEDI ) ' / ACCOUNTANT MEMBER PUNE; DATED : 1 ST NOVEMBER 2019. YAMINI #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-1 KOLHAPUR. PR. CIT-1 KOLHAPUR. '#$ %%&' ) &' *+ / DR ITAT SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // 012%3&4 / SR. PRIVATE SECRETARY ) &' / ITAT PUNE.