CHANDIRAM, Kota v. ITO, Kota

ITA 31/JPR/2015 | 2008-2009
Pronouncement Date: 14-10-2016 | Result: Dismissed

Appeal Details

RSA Number 3123114 RSA 2015
Assessee PAN ABIPR6234N
Bench Jaipur
Appeal Number ITA 31/JPR/2015
Duration Of Justice 1 year(s) 9 month(s) 4 day(s)
Appellant CHANDIRAM, Kota
Respondent ITO, Kota
Appeal Type Income Tax Appeal
Pronouncement Date 14-10-2016
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 14-10-2016
Assessment Year 2008-2009
Appeal Filed On 09-01-2015
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHE S JAIPUR JH DQY HKKJR] U;KF;D LNL; OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT JM & SHRI VIKRAM SINGH YA DAV AM VK;DJ VIHY LA- @ ITA NO. 31/JP/2015 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2008-09 SHRI CHANDIRAM PROP.-M/S CHANDI & CO A-20 VALLABH NAGAR KOTA. CUKE VS. INCOME TAX OFFICER WARD 1(1) KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABIPR 6234 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY:SHRI SIDDARTHA RANKA (ADV) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 18/07/2016 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 14/10/2016 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV A.M.: THIS IS THE APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER DATED 23/10/2014 PASSED BY THE LD CIT(A) KOTA FOR THE A. Y. 2008-09. THE EFFECTIVE GROUNDS OF THE ASSESSEES APPEAL ARE AS U NDER:- 1. THAT ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD ASSESSING OFFICER GROSSLY ERRED IN INIT IATING PROCEEDINGS U/S 148 OF THE INCOME-TAX ACT. THAT THE RE WAS NO BASIS TO ISSUE NOTICE U/S 148 AND THE ENTIRE PRO CEEDINGS IS ILLEGAL UNJUSTIFIED AND BAD IN LAW. ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 2 1.1 THAT THE LD. CIT(A) GROSSLY ERRED IN CONFIRMING THE INITIATION OF PROCEEDINGS U/S 148 OF THE ACT BY THE LD ASSESSING OFFICER AND IN REJECTING THE GROUND OF THE ASSESSEE IN A SU MMARY MANNER. 1.2 THAT THE RETURN OF INCOME WAS FILED WITH COMPLE TE DETAILS DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDING S U/S 143(3) OF THE ACT THE BOOKS WERE EXAMINED REPLIES WERE FURNISHED ALL THE ISSUES WERE DISCUSSED AND A REAS ONED AND SPEAKING ORDER WAS PASSED BY THE PREDECESSOR DESPI TE OF THE SUCCESSOR ON THE BASIS OF MERE CHANGE OF OPINION W ITHOUT PROPER APPLICATION OF MIND AND WITHOUT ANY FRESH MA TERIAL REOPENED THE ASSESSMENT WHICH IS ILLEGAL VOID-AB-I NITIO ARBITRARY AND THUS THE REASSESSMENT PROCEEDINGS DES ERVES TO BE QUASHED AND BE HELD AS ILLEGAL. 2. ALL THESE GROUNDS OF THE ASSESSEES APPEAL ARE I NTERLINKED AND AGAINST ISSUANCE OF NOTICE U/S 148 OF THE INCOME TA X ACT 1961 (IN SHORT THE THE ACT) INITIATING THE PROCEEDINGS U/S 148 OF THE ACT AND REOPENING THE ASSESSMENT PROCEEDINGS ORIGINALLY COMPLETED U/S 143(3) OF THE ACT. 2.1 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.3 16 040/- O N 30.09.2008. THE CASE WAS SELECTED FOR SCRUTINY AND THEREFORE THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT ON 1 4.05.2010 AT A TOTAL INCOME OF RS.7 55 353/-. SUBSEQUENTLY IT WAS NOTIC ED BY THE AO THAT THE ASSESSEE HAD RECEIVED A SUM OF RS.91 59 305/- AS AR BITRATION RECEIPTS DURING THE F.Y.2007-08 (AY 2008-09). BUT THE ASSESS EE HAS NOT DISCLOSED ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 3 THESE RECEIPTS IN THE RETURN OF INCOME AS WELL AS B EFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS U/S 143(3 ) OF THE ACT FOR THE YEAR UNDER CONSIDERATION. IT WAS ALSO NOTICED BY TH E ASSESSING OFFICER THAT THE ASSESSEE HAS FAILED TO DEDUCT TDS ON PAYMENTS O F RS. 39 96 030/- THUS THIS AMOUNT WAS NOT ALLOWABLE U/S 40(A)(IA) OF THE I.T. ACT. CONSIDERING THE ABOVE ESCAPEMENT OF INCOME PROCEED INGS U/S 147 OF THE ACT WERE INITIATED AFTER OBTAINING NECESSARY APPROV AL OF COMPETENT AUTHORITY AND NOTICE U/S 148 OF THE I.T. ACT WAS IS SUED ON 29.03.2012 WHICH WAS SERVED ON THE ASSESSEE ON 29.03.2012. 2.2 HERE IT WOULD BE RELEVANT TO NOTE THE REASONS R ECORDED BY THE ASSESSING OFFICER BEFORE THE ISSUANCE OF THE NOTICE U/S 148 OF THE ACT WHICH ARE REPRODUCED AS UNDER: (I) ON GOING THROUGH THE ASSESSMENT RECORDS OF THE ASSESSEE FOR A.Y. 2008-09 IT HAS COME TO NOTICE THAT THE ASSESS EE RECEIVED ARBITRATION RECEIPTS AMOUNTING TO RS. 91 59 305/- DURING THE F. Y. 2007-08 RELEVANT FOR A.Y. 2008-09 WHICH THE ASSESSEE HAS NOT OFFERED FOR TAXATION PURPOSE. (II) THE ASSESSEE HAS NOT DEDUCTED TAX ON PAYMENT OF RS. 39 96 030/- MADE TO DIFFERENT PERSONS FOR TRACTOR H IRE CHARGES COMPRESSOR HOLD CHARGES EXCAVATOR WORK AND PROFESS IONAL FEE. ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 4 (III) ASSESSEE HAS NOT FURNISHED FORM NO. 16A AS E VIDENCE FOR TOTAL RECEIPTS AND TDS. THEREFORE I HAVE REASON TO BELIEVE THAT INCOME TO THE EXTENT MENTIONED ABOVE HAS ESCAPED ASSESSMENT. 3. A COPY OF THE ABOVE REASONS WAS MADE AVAILABLE T O THE ASSESSEE AND AFTER RECEIVING THE OBJECTIONS OF THE ASSESSEE THE ASSESSING OFFICER PASSED AN ORDER DATED 4.01.2013 DISPOSING OFF THE A SSESSEES OBJECTIONS WHEREIN THE ASSESSING OFFICER STATED AS UNDER: THE OBJECTION RAISED BY THE ASSESSEE HAS BEEN EXAM INED BY THE UNDERSIGNED ON THE FACTS OF THE CASE AND AS PER LAW BUT NOT FOUND ACCEPTABLE. ON PERUSAL OF COPY OF BALANCE SHEET IT IS SEEN THAT DURING THE YEAR ASSESSEE HAS RECEIVED ARBITRATION R ECEIPTS OF RS. 91 59 305/- BUT NOT INCLUDED THIS AMOUNT FOR CALCUL ATION OF TOTAL INCOME. THE ASSESSEE HAD SHOWN CURRENT LIABILITIES WHICH INCLUDED AN AMOUNT OF RS. 91 59 305/- AS ARBITRATION RECEIPT S FROM PWD BHARATPUR PWD JHALAWAR PWD BARAN AND PWD SAWAI MADHOPUR. THESE RECEIPTS SHOULD BE INCLUDED IN THE TOTAL INCOME OF THE ASSESSEE BUT THE ASSESSEE HAS NOT INCLUDED T HESE RECEIPTS HENCE ASSESSMENT MADE EARLIER HAS ESCAPED ASSESSMEN T WITHIN THE MEANING OF SECTION 147 OF THE IT ACT AND NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE. SIMILARLY THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE FOR PAYMENT OF HIRE CHARGES BUT NO TD S HAS BEEN DEDUCTED HENCE PROVISION OF SEC. 40(A)(IA) WERE APP LICABLE IN THIS ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 5 CASE. THEREFORE INCOME OF RS. 39 96 030/- HAS ESCA PED ASSESSMENT AND TO ASSESS THIS INCOME NOTICE U/S 148 WAS ISSUED. THE MATTER REQUIRES FURTHER EXAMINATION AND ACTION IN ACCORDANCE WITH THE STATUTORY PROVISIONS THE LAW SHOULD BE AL LOWED TO RUN ITS COURSE. THE ASSESSEE HAS SUPPRESSED SOME RELEVANT F ACT WHICH LEADS TO CONCEALMENT OF INCOME. THE ASSESSEE HAS MI SREPRESENTED THE FACTS IN THE ORIGINAL RETURN OF INCOME BY WAY O F SHOWING ARBITRATION RECEIPTS OF RS. 91 59 305/- AS CONTINGE NT LIABILITIES AFTER RECEIVING THE AMOUNT FROM ARBITRATOR DURING THE YEA R. THEREFORE THERE IS NON DISCLOSURE OF FULL AND TRUE MATERIAL F ACTS BEFORE THE INCOME TAX AUTHORITIES. ASSESSEES OBJECTION STATIN G THAT MERE CHANGE OF OPINION ON THE PART OF ASSESSING OFFICER CANNOT ISSUE NOTICE U/S 148 IS ALSO NOT ACCEPTED IN TERM OF EXPL ANATION 1 TO SECTION 147 AND THE JUDGMENT OF THE DELHI HIGH COUR T IN CONSOLIDATED PHOTO AND FINEST LTD. VS. TAXMAN 41 AN D THE JUDGMENT OF THE HON'BLE SUPREME COURT REPORTED IN S HRI KRISHNA (P) LTD. VS ITO (1990) 221 ITR 538/87 TAXMAN 315. THE ASSESSEE HAVING WRONGLY STATED THAT ABOVE RECEI PT UNDER THE HEAD CONTINGENT LIABILITIES AS THERE WAS NO ACTUA L LIABILITY ON THE PART OF THE ASSESSEE DURING THE YEAR. THE ASSESSEE ALSO VIOLATED THE PROVISION OF SECTION 40(A)(IA) BY NON DEDUCTION OF TAX ON HIRING PAYMENT. THEREFORE THE A.O. HAS REASON TO BELIEVE THAT INCO ME CHANGEABLE TO TAX HAS ESCAPED ASSESSMENT IN VIEW OF THE FAILUR E ON THE PART OF ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 6 THE ASSESSEE TO DISCLOSE TRUE ACT FULL MATERIAL FAC TS AS REQUIRED BY THE PROVISION OF SECTION 147. THE THEN A.O. HAS ISSUED NOTICE U/S 148 BASED ON RE ASONS WHICH ARE RELEVANT AND MATERIAL. IT IS OBLIGATORY TO ASSE SSEE TO DISCLOSE ALL PRIMARY FACTS FULLY AND TRULY DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT IS ASSESSEES DUTY TO DISCLOSE ALL THE PARTICULARS OF HIS INCOME IN THE RETURN OF INCOME. THE REASON RECO RDED IS WELL WITHIN THE PROVISION OF I.T. ACT ACCORDINGLY THE OBJECTION RAISED BY THE ASSESSEE IS HEREBY REJECTED. 4. THE AO THEREAFTER COMPLETED THE ASSESSMENT PROCE EDINGS AND PASSED THE ORDER U/S 147/143(3) DATED 26.12.2013. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER THE ASSESSEE CA RRIED THE MATTER BEFORE THE LD. CIT(A) WHO HAD CONFIRMED THE ACTION OF THE ASSESSING OFFICER BY OBSERVING AS UNDER:- THE AO REOPENED THE ASSESSMENT ON THE GROUND THAT ASSESSEE DID NOT DISCLOSE SUM OF RS. 91 59 305/- RECEIVED AS ARBITRATION AWARD DURING THE F.Y. 2007-08. THE AO ALSO NOTICED THAT ASSESSEE HAD NOT DEDUCTED TDS ON PAYMENT OF RS. 39 96 030/- AND THEREFORE THIS AMOUNT WAS NOT ALLOWABLE U/S 40 (A)(IA) OF THE I.T. ACT. THE ASSESSEE CLAIMED THAT IN REPLY TO AOS NOTICE THE ASSESSEE SUBMITTED THAT DETAILS OF LIABILITIES WERE SHOWN IN SCHEDULE-C OF THE AUDIT REPORT. ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 7 THE ASSESSEE IN ITS WRITTEN REPLY MENTIONED AS UNDE R:- IT WAS EXPLAINED BY THE AUTHORIZED REPRESENTATIVE AT THE AMOUNT OF RS. 91 59 305/ - AS DETAILED IN SCHEDULE-C WAS RECEIVED ON FURNISHING THE BANK GUARANTEE IS ON TR UST WITH THE ASSESSEE SUBJECT TO FINAL JUDGMENT OF THE HONBLE C OURT HENCE NOT INCOME.' HOWEVER NO SUCH REPLY WAS FOUND IN THE WRITTEN SUB MISSIONS MADE BY THE ASSESSEE. COPY OF LETTER SUBMITTED BEFO RE AO IS ENCLOSED AS ANNEXURE-A. THE ASSESSEE FURTHER MENTIONED AS UNDER:- THE FACTUM OF ESCALATION CLAIM DURING PREVIOUS YEA R AMOUNTING TO RS. 91 59 305/- CREDITED ON ESCALATION HEAD FORM ING PART OF ITEM NO. 13 OF FORM NO. 3CD WAS DISCLOSED. I HAVE GONE THROUGH SCHEDULE-C (PLACED AS ANNEXURE- B) AND IT WAS SEEN THAT SUM OF RS. 91 59 305/- WAS SHOWN AS A DVANCES RECEIVED FROM PWD-BHARATPUR PWD- JHALAWAR PWD-BAR AN & PWD-SAWAI MADHOPUR. FROM THE ABOVE IT IS CLEAR THAT THE FACT THAT AMOU NT OF RS. 91 59 305/- WAS RECEIVED AS ARBITRATION RECEIPT WAS NEVER DISCLOSED BEFORE THE ASSESSING OFFICER DURING THE O RIGINAL COURSE OF PROCEEDINGS. THIS FACT CAME TO THE KNOWLEDGE OF A.O. LATER ON. ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 8 THE FACT OF NON-DEDUCTION OF TDS ON PAYMENT OF RS. 39 96 030/- WAS NOT CHALLENGED BY THE AO. THE ASSESSEE CLAIMED THAT THE ASSESSMENT WAS REOPEN ED ON THE BASIS OF AUDIT OBJECTION. I HAVE CALLED FOR THE REC ORDS AND ALSO ALLOWED INSPECTION OF THE SAME TO THE A/R OF THE AS SESSEE. IT WAS SEEN THAT THE ASSESSMENT WAS NOT REOPENED ON TH E BASIS OF AUDIT OBJECTION. CONSIDERING THE ABOVE I AM OF THE OPINION THAT AO HAS RIGHTLY RE-OPENED THE ASSESSMENT U/S 148 OF THE IT ACT. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE US. DURING THE COURSE OF HEARING THE LD AR OF THE ASSESSEE HAS SUBMITTED TH AT THE BOOKS OF ACCOUNTS FOR THE FINANCIAL YEAR ENDING 31/3/2008 WE RE GOT AUDITED AND OUR REFERENCE WAS DRAWN TO ITEM NO. 13 OF TAX AUDIT REPORT (FORM 3CD) WHICH STATED THE FACT: ESCALATION CLAIMS ACCEPTED DURING THE PREVIOUS YEAR AMOUNTING TO RS. 91 59 305/- CREDITED ON ESCAL ATION HEAD. FURTHER OUR REFERENCE WAS DRAWN TO SCHEDULE C SH OWING CURRENT LIABILITIES AS ON 31/03/2008 ATTACHED TO AND FORMIN G PART OF BALANCE-SHEET ANNEXED WITH THE AUDIT REPORT. IN THE COLUMN PARTIC ULARS IT WAS DISCLOSED AS UNDER:- ARBITRATION RECEIPTS FROM X-EN IRRIGATION BUNDI (AS PER LAST BALANCE SHEET) 35 83 798 ADVANCE RECEIVED FROM PWD BHARATPUR 13 47 770 ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 9 PWD JHLR. 37 18 145 PWD BARAN 27 52 375 PWD S. MADHOPUR 13 41 015 91 59 305 FURTHER OUR REFERENCE WAS DRAWN TO THE ASSESSEES L ETTER DATED 13/3/2010 FILED ALONGWITH COPY OF THE TAX AUDIT REPORT COMPU TATION OF INCOME WITH THE ASSESSING OFFICER WHERE IT WAS STATED AS UNDER: PARA 4: THAT DURING THE YEAR UNDER CONSIDERATION D ETAIL OF LIABILITIES OUTSTANDING AT THE END OF THE YEAR IS SHOWN AS PER SCHEDULE C OF THE AUDIT REPORT. THE LD AR SUBMITTED THAT DURING THE COURSE OF ASSES SMENT PROCEEDINGS IT WAS EXPLAINED BY THE AUTHORITIES REPRESENTATIVE THA T THE AMOUNT OF RS. 9 159 305/- AS DETAILED IN SCHEDULE C WAS RECEIVE D ON FURNISHING THE BANK GUARANTEE IS ON TRUST WITH THE ASSESSEE SUBJE CT TO FINAL JUDGMENT OF THE HONBLE COURT HENCE NOT INCOME. FURTHER OUR REFERENCE WAS DRAWN TO THE ASSESSEES R EPLY DATED 11/05/2010 WHEREIN IT WAS SUBMITTED AS UNDER: PARA 4: THAT DURING THE YEAR UNDER CONSIDERATION YOUR ASSE SSEE SHOWING NET INTEREST PROFIT IN P&L A/C. RS. 623 298/-. THIS AMOUNT REPRESENTS INTEREST ON FDR MADE FOR THE PURPOSE OF BANK GUARAN TEE TO RECEIVE THE ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 10 PAYMENT FROM ARBITRATION AWARD HENCE THIS IS PURELY A BUSINESS INCOME AND NOT FOR INVESTMENT AND HENCE THIS INCOME MAY BE TREATED AS BUSINESS INCOME. LD AR SUBMITTED THAT IT WAS EXPLAINED BY THE AUTHOR IZED REPRESENTATIVE THAT THE INTEREST ON FIXED DEPOSIT RECEIPT IS PURELY A BUSIN ESS INCOME AS IT EMANATES OUT OF FDR MADE FOR ISSUANCE OF BANK GUARA NTEES IN COMPLIANCE TO THE ORDER OF HONBLE RAJASTHAN HIGH C OURT AND THE INTEREST RECEIVED IS NOT INCOME FROM OTHER SOURCES. THE LD AR THEREAFTER SUBMITTED THAT THE ORDER OF HO NBLE ITAT IN ITA NO. 1003/JP/2007 FOR THE A.Y. 2004-05 IN ASSESSEES OWN CASE THE IDENTICAL ISSUE WAS INVOLVED AND DECIDED IN FAVOUR OF THE ASS ESSEE. THE ORDER WAS PASSED ON 31/03/08 WHILE ORIGINAL ASSESSMENT ORDER WAS PASSED SUBSEQUENT ON 14/05/10 AND THEREFORE THE FACT OF T HE ISSUE ON ARBITRATION RECEIPTS WAS VERY MUCH IN THE KNOWLEDGE OF AO. THE LD AR OF THE ASSESSEE HAS THEREAFTER TAKEN THE FOLLOWING LEGAL CONTENTIONS: 1. THERE IS NO ALLEGATION THAT THE ASSESSEE DID NOT DISCLOSE TRULY AND CORRECTLY FOR WHICH HE HAS RELIED ON THE FOLLOWING DECISIONS:- ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 11 1. MUNJAL SHOWA LTD. VS. DCIT (W.P.(C) NO. 4753 OF 2011 MAY 14 2012. 2. ITO VS MADNANI ENGINEERING WORKS LTD. (1979) 118 ITR 1 (SC). 3. BERGER PAINTS INDIA LTD. 245 ITR 648. 4. ITO VS LAKSHMI MEWAL DAS (1978) 103 ITR 438 (SC ) 2. THE ASSESSEE APPELLANT HAD DISCLOSED ALL PRIMARY RELEVANT MATERIAL FACTS DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR WHICH HE HAS RELIED ON THE FOLLOWING DECISIONS:- 1. ASSOCIATED STONE INDUSTRIES LTD. 224 ITR 560 (S C). 2. INDO-ADAN SALT MANUFACTURING & TRADING CO. PVT. LTD. VS CIT (1986) 159 ITR 624 (SC). 3. SHREE KRISHNA PVT. LTD. VS. ITO (1996) 221 ITR 538 (SC) 3. ON SAME FACTS WHICH ARE ALREADY AVAILABLE IN THE ORIGINAL ASSESSMENT RECORDS REOPENING CANNOT BE REINITIATED AGAIN FOR WHICH HE HAS RELIED ON THE FOLLOWING DECISIONS:- 1. INDIAN OIL CORPORATION 159 ITR 956 (SC). 2. ICICI HOME FINANCE CO. LTD. VS. ACIT (2012) 25 TAXMANN.COM 241 (BOM) 3. CIT VS FUJITSU OPTEL LTD. (2013) 359 ITR 67 (MP ) 4. COCA COLA EXPORT CORPORATION 231 ITR 200 (SC) 5. ANDHRA BANK LTD. 225 ITR 447 (SC) 6. SAMBHAR SALTS LTD. 262 ITR 675 (RAJ). ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 12 7. NDT SYSTEMS VS ITO WPC NO. 2710 OF 2012 DATED 04/12/2012. 4. ANY LAPSE OVERSIGHT ERROR OR MISTAKE OR INADVE RTENCE ON THE PART OF PREVIOUS ASSESSING OFFICER IS NO VALID REASON TO R EOPEN FOR WHICH HE HAS RELIED ON THE FOLLOWING DECISIONS:- 1. GANESHILAL LALCHAND 154 ITR 274 (RAJ). 2. KUMAR STORES 340 ITR 90 (PAT). 3. IDEA CELLULAR LTD. VS DCIT (2008) 301 ITR 407 ( BOM). 4. ATMA RAM PROPERTIES (P) LTD. VS DCIT (2012) 254 CTR 597 (DEL). 5. CIT VS JET SPEED AUDIO PVT. LTD. (2015) 372 ITR 762 (BOM). 5. TEST OF CHANGE OF OPINION IS AN INGRAINED TEST I N THE REASSESSMENT PROCEEDINGS WHICH HAS BEEN VIOLATED BY THE LD. ASSE SSING OFFICER FOR WHICH HE HAS RELIED ON THE FOLLOWING DECISIONS:- 1. CIT VS KELVINATOR OF INDIA LTD. (2010) 320 ITR 561 AT 564 (SC). 2. STATE OF UTTER PRADESH VS. ARYAVERTH CHAWL UDYO G (2015) 53 TAXMANN.COM 66 (SC). 6. THE ALLEGATION OF THE LD. ASSESSING OFFICER THAT THERE IS NON DISCLOSURE OF FULL AND TRUE MATERIAL FACTS BEFORE T HE INCOME-TAX AUTHORITIES REMAINS UNSUBSTANTIATED IS WITHOUT MATERIAL AND CO NTRARY TO THE MATERIAL ON RECORD WHEN ALL PRIMARY RELEVANT AND MATERIAL F ACTS WERE DULY ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 13 DISCLOSED AND WERE DULY EXAMINED AND CONSIDERED BY THE LD. ASSESSING OFFICER ORIGINALLY ASSESSING. 6.1 THE LD. ASSESSING OFFICER HAS GROSSLY ERRED IN PLACING RELIANCE ON THE JUDGMENT OF THE APEX COURT IN INDO-ADAN SALT MANUFA CTURING & TRADING CO. PVT. LIMITED VS. CIT (1986) 159 ITR 624 (S.C.) WHEREIN THE HONBLE COURT HELD THAT THERE WAS NON-DISCLOSURE OF PRIMARY FACTS AND SUCH A FINDING CANNOT BE CHALLENGED BEING A QUESTION OF FA CT. THE SAID DECISION ON THE CONTRARY SUPPORTS THE CLAI M OF THE ASSESSEE RESPONDENT AS THE HONBLE COURT HAS HELD: 'IT IS WE LL SETTLED THAT THE OBLIGATION OF THE ASSESSEE STOOD TO DISCLOSE ONLY P RIMARY FACTS AND NOT INFERENTIAL FACTS'. 6.2 THE LD. ASSESSING OFFICER HAS GROSSLY ERRED IN PLACING RELIANCE ON THE JUDGMENT OF THE APEX COURT IN SHREE KRISHNA PVT. LTD. V. ITO (1996) 221 ITR 538 WHICH IS COMPLETELY DISTINGUISHABLE ON THE FACTS OF THE CASE OF THE HUMBLE ASSESSEE RESPONDENT. IN THE SAID CASE THE HO NBLE COURT FOUND THAT DISCLOSURE OF LOANS WERE SUBSEQUENTLY DISCOVER ED TO BE FALSE . HENCE IT IS INAPPLICABLE ON THE FACTS OF THE HUMBLE ASSES SEE RESPONDENT. THE HONBLE COURT IN-FACT HAS REITERATED THAT THE A SSESSING OFFICER FOR THE PURPOSE OF DETERMINING THE TAX DUE FROM THE ASSESSE E IS REQUIRED TO KNOW ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 14 ALL FACTS WHICH WOULD HELP HIM IN COMING TO THE SAI D CONCLUSION. MATERIAL FACTS ARE IN THE POSSESSION OF THE ASSESSEE AND TH EREFORE SHOULD BE FULLY AND TRULY DISCLOSED. HOWEVER ONCE THESE ARE DISCLO SED THEN IT IS FOR THE ASSESSING OFFICER/AUTHORITY TO DRAW PROPER LEGAL IN FERENCES AND ASCERTAIN ON CORRECT INTERPRETATION OF THE TAXING ENACTMENT THE PROPER TAX LEVIABLE. 6.3 THE RELIANCE PLACED BY THE LD. ASSESSING OFFICE R ON OTHER DECISIONS OF ORISSA HIGH COURT AND MADRAS HIGH COURT IS MISCO NCEIVED AS THE SAID CASES ARE COMPLETELY DISTINGUISHABLE ON THE FACTS O F THE CASE OF THE HUMBLE ASSESSEE RESPONDENT. 7. AT THE OUTSET THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LOWER AUTHORITIES AND HAS FURTHER HELD THAT THE ASS ESSEES FIRST PLEA THAT IN ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3) DATED 1 4/05/2010 THAT ISSUE OF ARBITRATION RECEIPTS HAS BEEN DULY CONSIDERED BY THE AO THAT PLEA OF THE ASSESSEE IS NOT CORRECT BECAUSE AO NEITHER ASKED ANY QUERY I N HIS NOTICES ISSUED U/S 143(2) DATED 07-09-2009 AND NOTI CE U/S 142(1) DATED 16/12/09 NOR ANY DETAILS HAVE BEEN FURNISHED BY THE ASSESSEE IN HIS REPLIES DATED 12/03/10 08/04/10 & 11/05/10 SUBMITT ED TO THE AO WHICH ARE ENCLOSED ON PAGE NO. 136 TO 150 OF ASSESSEES P APER BOOK. ON PAGE 151 OF ASSESSEES PAPER BOOK ORIGINAL ASSESSMENT O RDER U/S 143(3) DATED ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 15 14/05/2010 IS ENCLOSED AND IN WHICH NOWHERE THE IS SUE OF ARBITRATION RECEIPTS HAVE BEEN DISCUSSED. HE RELIED UPON THE FO LLOWING DECISIONS. I. 102 1TR 287(SC) II. 247 1TR 818 (SC) III. 224 1TR 362 IV. 241 1TR 856 (MAD) V. 48 1TR 314 (MAD) VI. 102 ITR 622 (MAD) IN THE ABOVE DECISIONS IT HAS BEEN HELD THAT WHEN EVER THERE IS NO DISCUSSION ON THE ISSUE IN THE ASSESSMENT ORDER AND NO DETAILS CALLED FOR BY AO OR FILLED BY THE ASSESSEE ON THE ISSUE NO FI NDING EITHER POSITIVE OR NEGATIVE WAS ARRIVED AT DURING THE COURSE OF THE OR IGINAL ASSESSMENT PROCEEDINGS HENCE THERE IS NO QUESTION OF CHANGE O F OPINION. THE FINDINGS OF THE ABOVE DECISIONS ARE EXACTLY APP LICABLE ON THE ASSESSEE'S CASE AND THEREFORE ASSESSEES ABOVE PLE A CANNOT BE ACCEPTED. HE FURTHER SUBMITTED THAT THE ASSESSEES SECOND PL EA THAT THE REOPENING WAS MADE BY AO ON THE BASIS OF INTERNAL A UDIT OBJECTION. ASSESSEE'S THAT PLEA IS ALSO NOT CORRECT IN VIEW OF THE REASONS RECORDED BY THE AO AND SUBMITTED BY THE ASSESSEE ON PAGE NO. 15 7 OF HIS PAPER BOOK IN WHICH NOWHERE AO MENTIONED REGARDING INTERNAL AU DIT OBJECTION. MOREOVER THE CIT(A) IN HIS FINDINGS IN PARA 4.12 O N PAGE 22 OF HIS ORDER ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 16 CLEARLY MENTIONED THAT THE ASSESSEE CLAIMED THAT T HE ASSESSMENT WAS REOPENED ON THE BASIS OF AUDIT OBJECTION I HAVE CA LLED FOR THE RECORDS AND ALSO ALLOWED INSPECTION OF THE SAME TO THE AR OF TH E ASSESSEE. IT WAS SEEN THAT THE ASSESSMENT WAS NOT REOPENED ON THE BASIS O F AUDIT OBJECTION. IN VIEW OF THESE FINDINGS OF CIT(A) ASSESSEE'S PLEA C ANNOT BE ACCEPTED. HE RELIED UPON THE DECISION OF HONBLE SC IN CASE OF P VS BEEDIS (P) LTD. REPORTED IN 237 ITR 13 IN WHICH HON'BLE COURT HAS H ELD THAT THE POSITION OF POINTED OUT THE INTERNAL AUDIT PARTY REOPENING O F THAT BASIS IS VALID. THE SAME VIEW HAS BEEN TAKEN BY JURISDICTIONAL HIGH COU RT OF RAJASTHAN IN ZORASTER & CO. VS CIT REPORTED IN 163 ITR 858. ASSESSEE HAS RELIED UPON SOME OF THE DECISIONS OF HONBLE HIGH COURTS INCLUDING DECISION OF HON'BLE JAIPUR ITAT IN CASE OF M.K. EXIM INDIA LIMITED REPORTED IN 20 TAXMANN.COM 336 BUT THOSE DE CISIONS ARE ON DIFFERENT FACTS AND NOT APPLICABLE ON THE ASSESSEE S CASE. IN THE CASE OF M.K. EXIM INDIA LIMITED THE NOTICE U/S 148 WAS ISSUED ON THE BASIS OF AUDIT OBJECTION. THE AO DID NOT ACCEPT THE AUDIT OBJECTION THOUGH HE PROCEEDED TO ISSUE THE NOTICE U /S 148 OF THE ACT AND ALSO REASSESSMENT WAS DONE ON THE ISSUE OTHER THAN ON WHICH REOPENING WAS DONE AND NARRATING THOSE FACTS CIT(A) QUASHED THE PROCEEDINGS U/S ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 17 148. THE FINDINGS HAVE BEEN GIVEN IN PARA 28 & 29 O F ITS ORDER AND THOSE FACTS ARE NOT IN ASSESSEES CASE. THE ASSESSEE HAS TOOK THE PLEA THAT THE ORDER OF H ONBLE ITAT IN ITA NO. 1003/JP/2007 FOR THE A.Y. 2004-05 IN ASSESS EES OWN CASE THE IDENTICAL ISSUE WAS INVOLVED AND DECIDED IN FAVOUR OF THE ASSESSEE. THE ORDER WAS PASSED ON 31/03/08 WHILE ORIGINAL ASSESSM ENT ORDER WAS PASSED SUBSEQUENT ON 14/05/10 AND THEREFORE THE FA CT OF THE ISSUE ON ARBITRATION RECEIPTS WAS VERY MUCH IN THE KNOWLEDGE OF AO. THIS PLEA CANNOT BE ACCEPTED BECAUSE THE FACTS OF ORDER OF IT AT JAIPUR IN THE ASSESSEES OWN CASE FOR THE A.Y. 2004-05 ARE COMPLE TELY DIFFERENT TO THE FACTS IN A.Y. 2008-09 WHICH ARE CLEAR FROM THE FIN DINGS GIVEN BY THE AO IN PARA 2.3.2 ON PAGE - 8 ON HIS ASSESSMENT ORDER AND HE RAISED THE ISSUE THAT THE EXPENSES RELEVANT TO ARBITRATION CONTRACT RECEIPTS HAVE ALREADY BEEN CLAIMED BY THE ASSESSEE IN EARLIER YEARS BY TR EATING THEM AS CRYSTALISED IN THOSE YEARS WHILE ARBITRATION CONTRA CT RECEIPTS WERE NOT SHOWN IN THOSE RELEVANT YEARS AS HIS INCOME IN THE P&L ACCOUNT AGAINST THE EXPENSES BUT SAME IS TREATED CONTINGENT LIABILI TY AS SHOWN IN THE BALANCE SHEET. THE METHOD APPLIED BY THE ASSESSEE I S COMPLETELY WRONG AND NOT PERMISSIBLE UNDER THE PROVISIONS OF LAW AND THEREFORE AO TREATED THOSE DISPUTED RECEIPTS AS ASSESSEES INCOME FOR TH E A.Y. 2008-09 ON ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 18 ACTUAL RECEIPT BASIS. THOSE FACTS AND ISSUES WERE N OT BEFORE HONBLE ITAT JAIPUR IN A.Y. 2004-05. THEREFORE THE ITAT DECISIO N IN THE ASSESSEES CASE FOR A.Y. 2004-05 IS COMPLETELY ON DIFFERENT FOOTING S AND ASSESSEES RELIANCE UPON THE SAID DECISION OF ITAT JAIPUR IS COMPLETELY MISPLACED. IN VIEW OF THESE FACTS ASSESSEES PLEA CANNOT BE ACCE PTED. 8. AS SECTION 147 OF THE ACT IS REQUIRED TO BE INTERPRETED AND EX AMINED WE DEEM IT APPROPRIATE TO REPRODUCE THE SAID SECTION AS IT EXI ST: 147. INCOME ESCAPING ASSESSMENT - IF THE AO HAS RE ASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR HE MAY SUBJECT TO THE PROVISIONS OF SECTION 148 TO 153 ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHAR GEABLE TO TAX WHICH HAS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTIC E SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION OR RECOMPUTED THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE A S THE CASE MAY BE FOR THE ASSESSMENT YEAR CONCERNED (HEREINAFTER IN T HIS SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASS ESSMENT YEAR). PROVIDED THAT WHERE AN ASSESSMENT UNDER SECTION (3 ) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSM ENT YEAR NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS FROM THE ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 19 END OF THE RELEVANT ASSESSMENT YEAR UNLESS ANY INC OME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETUR N U/S 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB SECTION (1) O F SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FAC TS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. EXPLANATION-1 PRODUCTION BEFORE THE AO OF ACCOUNT BOOKS OR OTHER EVIDENCE FROM WHICH MATERIAL EVIDENCE COULD WITH DU E DILIGENCE HAVE BEEN DISCOVERED BY THE AO WILL NOT NECESSARILY AMOU NT TO DISCLOSURE WITHIN THE MEANING OF THE FOREGOING PROVISO. EXPLANATION-2- FOR THE PURPOSES OF THIS SECTION TH E FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX H AS ESCAPED ASSESSMENT NAMELY (A) WHERE NO RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE ALTHOUGH HIS TOTAL INCOME OR THE TOTAL INCOME OF AN Y OTHER PERSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DU RING THE PREVIOUS YEAR EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME TAX; (B) WHERE A RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE BUT NO ASSESSMENT HAS BEEN MADE AND IT IS NOTICED BY THE A O THAT THE ASSESSEE ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 20 HAS UNDERSTATED THE INCOME OR HAS CLAIMED EXCESSIVE LOSS DEDUCTION ALLOWANCE OR RELIEF IN THE RETURN; (C) WHERE AN ASSESSMENT HAS BEEN MADE BUT (I) INCOME CHARGEABLE TO TAX HAS BEEN UNDERASSESSE D OR (II) SUCH INCOME HAS BEEN ASSESSED AT TOO LOW A RA TE OR (III) SUCH INCOME HAS BEEN MADE THE SUBJECT OR EXC ESSIVE RELIEF UNDER THIS ACT ; OR (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR AN Y OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED EXPLANATION-3 FOR THE PURPOSE OF ASSESSMENT OR RE ASSESSMENT UNDER THIS SECTION THE AO MAY ASSESS OR REASSESS THE INC OME IN RESPECT OF ANY ISSUE WHICH HAS ESCAPED ASSESSMENT SUCH ISSUE CO MES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDINGS UNDER THIS SECTION NOTWITHSTANDING THAT THE REASONS FOR SUCH ISSUE HA VE NOT BEEN INCLUDED IN THE REASONS RECORDED UNDER SUB-SECTION (2) OF SECTI ON 148. 8.1 GIVEN THE CONTENTIONS RAISED BY BOTH THE PARTIE S IT WOULD BE RELEVANT TO EXAMINE THE AMENDMENTS WHICH HAVE BEEN BROUGHT IN THE PROVISIONS OF SECTION 147 OF THE ACT BY THE DIRECT TAX LAWS (AMENDMENT) ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 21 ACT 1987 WITH EFFECT FROM APRIL 1 1989 AND AS AP PLICABLE TO THE FACTS OF THE CASE AND THE POSITION AS IT STOOD PRIOR TO THE AMENDMENT WHICH CONFER JURISDICTION TO THE ASSESSING OFFICER TO REO PEN THE ASSESSMENT. THE HONBLE SUPREME COURT IN ASST. CIT V. RAJESH JHAVERI STOCK BROKERS P. LTD (291 ITR 500) HAS EXPLAINED THE SAME AS UNDER (PAGE 511): THE SCOPE AND EFFECT OF SECTION 147 AS SUBSTITUTED WITH EFFECT FROM APRIL 1 1989 AS ALSO SECTION 148 TO 152 ARE SUBSTANTIAL LY DIFFERENT FROM THE PROVISIONS AS THEY STOOD PRIOR TO SUCH SUBSTITUTION . UNDER THE OLD PROVISIONS OF SECTION 147 SEPARATE CLAUSES (A) AND (B) LAID DOWN THE CIRCUMSTANCES UNDER WHICH INCOME ESCAPING ASSESSMEN T FOR ANY ASSESSMENT YEAR COULD BE ASSESSED OR REASSESSED. T O CONFER JURISDICTION UNDER SECTION 147(A) TWO CONDITIONS WERE REQUIRED TO BE SATISFIED. FIRSTLY THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE T HAT INCOME PROFITS OR GAINS CHARGEABLE TO INCOME TAX HAVE ESCAPED ASSESSM ENT AND SECONDLY HE MUST ALSO HAVE REASON TO BELIEVE THAT SUCH ESCAP EMENT HAS OCCURRED BY REASON OF EITHER OMISSION OR FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY OR TRULY ALL MATERIAL FACTS NECESSAR Y FOR HIS ASSESSMENT OF THAT YEAR. BOTH THESE CONDITIONS WERE CONDITIONS P RECEDENT TO BE SATISFIED BEFORE THE ASSESSING OFFICER COULD HAVE JURISDICTIO N TO ISSUE NOTICE UNDER SECTION 148 READ WITH SECTION 147(A) OF THE ACT. B UT UNDER THE SUBSTITUTED ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 22 SECTION 147 OF THE ACT EXISTENCE OF ONLY THE FIRST CONDITION SUFFICES. IN OTHER WORDS IF THE ASSESSING OFFICER FOR WHATEVER REASON HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT IT CONFE RS JURISDICTION TO REOPEN THE ASSESSMENT IT IS HOWEVER TO BE NOTED THAT BOTH THE CONDITIONS MUST BE FULFILLED IF THE CASE FALLS WITH IN THE AMBIT OF THE PROVISO TO SECTION 147. 8.2 SUBSEQUENTLY THE HONBLE SUPREME COURT IN CIT V KELVINATOR OF INDIA LTD (320 ITR 561) WHILE APPROVING THE DECISION OF THE FULL BENCH OF THE DELHI HIGH COURT IN CIT V KELVINATOR OF INDI A LTD 256 ITR 1 HAS EXPLAINED THE SIGNIFICANCE OF THE AMENDMENTS AND OB SERVED AS UNDER (PAGE 564): 'ON GOING THROUGH THE CHANGES QUOTED ABOVE MADE TO SECTION 147 OF THE ACT WE FIND THAT PRIOR TO THE DIRECT T AX LAWS (AMENDMENT) ACT 1987 REOPENING COULD BE DONE UNDE R THE ABOVE TWO CONDITIONS AND FULFILLMENT OF THE SAID CO NDITIONS ALONE CONFERRED JURISDICTION ON THE ASSESSING OFFICER TO MAKE A BACK ASSESSMENT BUT IN SECTION 147 OF THE ACT (WITH EFF ECT FROM APRIL 1 1989) THEY ARE GIVEN A GO-BY AND ONLY ONE CONDI TION HAS REMAINED VIZ. THAT WHERE THE ASSESSING OFFICER HA S REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT CONFERS JURISDICTION TO REOPEN THE ASSESSMENT. THEREFORE POST-APRIL 1 1989 POWER TO REOPEN IS MUCH WIDER. HOWEVER ONE NEEDS TO GIVE A SCHEMATIC INTERPRETATION TO THE WORDS 'REASON TO BE LIEVE' FAILING ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 23 WHICH WE ARE AFRAID SECTION 147 WOULD GIVE ARBITR ARY POWERS TO THE ASSESSING OFFICER TO REOPEN ASSESSMENTS ON THE BASIS OF 'MERE CHANGE OF OPINION' WHICH CANNOT BE PER SE RE ASON TO REOPEN. WE MUST ALSO KEEP IN MIND THE CONCEPTUAL DI FFERENCE BETWEEN POWER TO REVIEW AND POWER TO REASSESS. THE ASSESSING OFFICER HAS NO POWER TO REVIEW; HE HAS THE POWER TO REASSESS. BUT REASSESSMENT HAS TO BE BASED ON FULFILMENT OF C ERTAIN PRE- CONDITION AND IF THE CONCEPT OF 'CHANGE OF OPINION' IS REMOVED AS CONTENDED ON BEHALF OF THE DEPARTMENT THEN IN THE GARB OF REOPENING THE ASSESSMENT REVIEW WOULD TAKE PLACE. ONE MUST TREAT THE CONCEPT OF 'CHANGE OF OPINION' AS AN IN-B UILT TEST TO CHECK ABUSE OF POWER BY THE ASSESSING OFFICER. HENC E AFTER APRIL 1 1989 THE ASSESSING OFFICER HAS POWER TO REOPEN PROVIDED THERE IS 'TANGIBLE MATERIAL' TO COME TO THE CONCLUS ION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT. REASONS MUST HAVE A LIVE LINK WITH THE FORMATION OF THE BELIEF. OUR VIE W GETS SUPPORT FROM THE CHANGES MADE TO SECTION 147 OF THE ACT AS QUOTED HEREINABOVE. UNDER THE DIRECT TAX LAWS (AMENDMENT) ACT 1987 PARLIAMENT NOT ONLY DELETED THE WORDS 'REASON TO BE LIEVE' BUT ALSO INSERTED THE WORD 'OPINION' IN SECTION 147 OF THE A CT. HOWEVER ON RECEIPT OF REPRESENTATIONS FROM THE COMPANIES AGAIN ST OMISSION OF THE WORDS 'REASON TO BELIEVE' PARLIAMENT RE-INT RODUCED THE SAID EXPRESSION AND DELETED THE WORD 'OPINION' ON T HE GROUND THAT IT WOULD VEST ARBITRARY POWERS IN THE ASSESSIN G OFFICER. 8.3 HERE WE REFER TO THE DECISION OF THE FULL BENCH OF THE HONBLE DELHI HIGH COURT IN CASE OF CIT V. USHA INTERNATIONAL (34 8 ITR 485) WHICH HAS ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 24 CONSIDERED THE DECISION OF THE HONBLE SUPREME COUR T IN CIT V KELVINATOR OF INDIA LTD (320 ITR 561) AND IT WAS OBSERVED AS U NDER (PAGE 502): (24) DISTINCTION BETWEEN DISCLOSURE/DECLARATION OF MATERIAL FACTS MADE BY THE ASSESSEE AND THE EFFECT THERE OF AND THE PRINCI PLE OF CHANGE OF OPINION IS APPARENT AND RECOGNIZED. FAILURE TO MAKE FULL A ND TRUE DISCLOSURE OF MATERIAL FACTS IS A PRECONDITION WHICH SHOULD BE SA TISFIED IF THE REOPENING IS AFTER FOUR YEARS OF THE END OF THE ASSESSMENT Y EAR. THE EXPLANATION STIPULATES THAT MERE PRODUCTION OF BOOKS OF ACCOUNT S AND OTHER DOCUMENTS FROM WHICH THE AO COULD HAVE WITH DUE DI LIGENCE INFERRED FACTS DOES NOT AMOUNT TO FULL AND TRUE DISCLOSURE. THUS IN CASES OF REOPENING AFTER FOUR YEARS AS PER THE PROVISO CONDU CT OF THE ASSESSEE AND DISCLOSURE MADE BY HIM ARE RELEVANT. HOWEVER WHEN THE PROVISO IS NOT APPLICABLE THE SAID PRECONDITION IS NOT APPLICABLE . THIS ADDITIONAL REQUIREMENT IS NOT TO BE SATISFIED WHEN ASSESSMENT PROCEEDINGS ARE INITIATED WITHIN FOUR YEARS OF THE END OF THE ASSES SMENT YEAR. THE SEQUITUR IS THAT WHEN THE PROVISO DOES NOT APPLY THE ASSESS MENT PROCEEDINGS CANNOT BE DECLARED INVALID ON THE GROUND THAT THE F ULL AND TRUE DISCLOSURE OF MATERIAL FACTS WAS MADE. IN SUCH CASES REASSES SMENT PROCEEDINGS CAN BE DECLARED INVALID WHEN THERE IS A CHANGE OF OPINI ON. AS A MATTER OF ABUNDANT CAUTION WE CLARIFY THAT FAILURE TO STATE T RUE AND CORRECT FACTS CAN ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 25 VITIATE AND MAKE THE PRINCIPLE OF CHANGE OF OPINION INAPPLICABLE. THIS DOES NOT REQUIRE REFERENCE TO AND THE PROVISO IS NO T INVOKED. THE DIFFERENCE IS THIS WHEN THE PROVISO APPLIES THE CO NDITION STATED THEREIN MUST BE SATISFIED AND IN OTHER CASES IT IS NOT A P REREQUISITE OR CONDITION PRECEDENT BUT THE DEFENCE /PLEA OF CHANGE OF OPINI ON SHALL NOT BE AVAILABLE AND WILL BE REJECTED. 8.4 THUS FOR REOPENING AN ASSESSMENT MADE U/S 143( 3) OF THE ACT IN TERMS OF THE AMENDED PROVISIONS OF SECTION 147 AS I T EXISTS AND AS EXPLAINED BY THE HONBLE SUPREME COURT THE ASSESSI NG OFFICER MUST HAVE REASON TO BELIEVE THAT THE INCOME HAS ESCAPED ASSES SMENT. THE REASONS MUST HAVE LIVE LINK WITH THE FORMATION OF THE BELIE F THAT INCOME HAS ESCAPED ASSESSMENT BASED ON TANGIBLE MATERIAL AND T HE CONCEPT OF CHANGE OF OPINION IS AN IN-BUILT TEST TO CHECK THE ABUSE OF POWER BY THE ASSESSING OFFICER AS THE ASSESSING OFFICER HAS POWE R TO REASSESS BUT NOT THE POWER TO REVIEW. WHERE THE CONCEPT OF CHANGE O F OPINION IS REMOVED IN THE GARB OF REOPENING OF ASSESSMENT REVIEW WOUL D TAKE PLACE. IN CASES WHERE THE FIRST PROVISO APPLIES THERE IS AN ADDITI ONAL REQUIREMENT THAT THERE SHOULD BE FAILURE OR OMISSION ON THE PART OF THE ASSESSEE IN DISCLOSING FULL AND TRUE MATERIAL FACTS. THE PROVI SO IS HOWEVER NOT APPLICABLE IN THE INSTANT CASE AS REASONS TO BELIEV E FOR ISSUANCE OF NOTICE ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 26 ARE RECORDED AND NOTICE IS ISSUED WITHIN FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR. FURTHER AS HELD BY THE HONBLE DE LHI HIGH COURT WHERE THE PROVISO DOES NOT APPLY THE ASSESSMENT PROCEEDI NGS CANNOT BE DECLARED INVALID ON THE GROUND THAT THE FULL AND TR UE DISCLOSURE OF MATERIAL FACTS WAS MADE AND IN SUCH CASES REASSESSMENT PROC EEDINGS CAN BE DECLARED INVALID WHERE THERE IS A CHANGE OF OPINION . THEREFORE THE CONTENTIONS OF THE LD AR REGARDING DISCLOSURE OF AL L PRIMARY RELEVANT MATERIAL FACTS DURING THE COURSE OF ORIGINAL ASSESS MENT PROCEEDINGS AND CONTENTION OF LD DR REGARDING NON-DISCLOSURE OF FUL L AND TRUE MATERIAL FACTS ARE NOT GERMANE TO THE ISSUE UNDER CONSIDERATION AN D HENCE NOT CONSIDERED AS THE CASE IN HAND IS COVERED BY THE MA IN PROVISION AND NOT THE PROVISO. 8.5 WE NOW REFER TO THE CONTENTION OF LD AR THAT TH E TEST OF CHANGE OF OPINION HAS BEEN VIOLATED BY THE ASSESSING OFFICER AND IN SUPPORT HE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT I N CASE OF KELVINATOR OF INDIA LTD (SUPRA) THE RELEVANT OBSERVATIONS HAVE A LREADY BEEN REPRODUCED IN PARA 8.2 ABOVE. THE HONBLE SUPREME COURT HAD R EJECTED THE SAID APPEAL OF THE REVENUE AGAINST THE DECISION OF FULL BENCH OF HONBLE DELHI HIGH COURT IN CIT VS. KELVINATOR OF INDIA LTD. (20 02) 256 ITR 1 (DEL). SUBSEQUENTLY GIVEN THE CONFLICTING VIEWS EXPRESSED ON THE QUESTION OF ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 27 CHANGE OF OPINION THE DECISION OF HONBLE SUPREM E COURT AS WELL AS THE DECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF KELVINATOR (SUPRA) WAS CONSIDERED AND EXPLAINED IN A LATTER DECISION BY TH E FULL BENCH OF THE HONBLE DELHI HIGH COURT IN CASE OF CIT V. USHA INT ERNATIONAL (348 ITR 485) WHEREIN THE QUESTIONS RAISED FOR CONSIDERATION AND RELEVANT OBSERVATIONS WERE AS UNDER: '(I) WHAT IS MEANT BY THE TERM 'CHANGE OF OPINION' ? (II) WHETHER ASSESSMENT PROCEEDINGS CAN BE VALIDLY REOPENED UNDER SECTION 147 OF THE ACT EVEN WITHIN FOUR YEARS IF AN ASSESSEE HAS FURNISHED FULL AND TRUE PARTICULARS AT THE TIME OF ORIGINAL ASSESSMENT WITH REFERENCE TO INCOME ALLEGED TO HAVE ESCAPED ASSESSM ENT AND WHETHER AND WHEN IN SUCH CASES REOPENING IS VALID OR INVALID ON THE GROUND OF CHANGE OF OPINION ? (III) WHETHER THE BAR OR PROHIBITION UNDER THE PRI NCIPLE 'CHANGE OF OPINION' WILL APPLY EVEN WHEN THE ASSESSING OFFICER HAS NOT ASKED ANY QUESTION OR QUERY WITH RESPECT TO AN ENTRY/NOTE BU T THERE IS EVIDENCE AND MATERIAL TO SHOW THAT THE ASSESSING OFFICER HAD RAI SED QUERIES AND QUESTIONS ON OTHER ASPECTS ? ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 28 (IV) WHETHER AND IN WHAT CIRCUMSTANCES SECTION 114 (E) OF THE EVIDENCE ACT CAN BE APPLIED AND IT CAN BE HELD THAT IT IS A CASE OF CHANGE OF OPINION ?' AND THE RELEVANT OBSERVATIONS ARE AS UNDER: 6. THE QUESTIONS OF LAW AT SERIAL NOS. 1 TO 3 REF ERRED TO THE FULL BENCH ARE INTERCONNECTED. THEY DEAL WITH THE TERM AND FAC ETS OF THE TERM 'CHANGE OF OPINION'. THE EXPRESSION 'CHANGE OF OPIN ION' POSTULATES FORMATION OF OPINION AND THEN A CHANGE THEREOF. IN THE CONTEXT OF SECTION 147 OF THE ACT IT IMPLIES THAT THE ASSESSING OFFICE R SHOULD HAVE FORMED AN OPINION AT THE FIRST INSTANCE I.E. IN THE PROCEED INGS UNDER SECTION 143(3) AND NOW BY INITIATION OF THE REASSESSMENT PROCEEDIN G THE ASSESSING OFFICER PROPOSES OR WANTS TO TAKE A DIFFERENT VIEW. 7. THE WORD 'OPINION' IS DERIVED FROM THE LATIN WO RD 'OPINARI' WHICH MEANS 'TO BELIEVE' 'TO THINK'. THE WORD 'OPINION' AS PER THE BLACK'S LAW DICTIONARY MEANS A STATEMENT BY A JUDGE OR A COURT OF A DECISION REACHED BY HIM INCORPORATING CAUSE TRIED OR ARGUED BEFORE T HEM EXPOUNDING THE LAW AS APPLIED TO THE CASE AND DETAILING THE REASO NS UPON WHICH THE JUDGMENT IS BASED. ADVANCED LAW LEXICON BY P. RAMAN ATHA AIYAR (THIRD EDITION) EXPLAINS THE TERM 'OPINION' TO MEAN 'SOMET HING MORE THAN MERE ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 29 RETAINING OF GOSSIP OR HEARSAY ; IT MEANS JUDGMENT OR BELIEF THAT IS A BELIEF OR A CONVICTION RESULTING FROM WHAT ONE THIN KS ON A PARTICULAR QUESTION . . . AN OPINION IS A CONVICTION BASED ON TESTIMONY . . . THEY ARE AS A RESULT OF READING EXPERIENCE AND REFLECTION'. 8. IN THE CONTEXT OF ASSESSMENT PROCEEDINGS IT ME ANS FORMATION OF BELIEF BY AN ASSESSING OFFICER RESULTING FROM WHAT HE THINKS ON A PARTICULAR QUESTION. IT IS A RESULT OF UNDERSTANDING EXPERIEN CE AND REFLECTION TO USE THE WORDS IN LAW LEXICON BY P. RAMANATHA AIYAR. THE QUESTION OF CHANGE OF OPINION ARISE WHEN AN ASSESSING OFFICER FORMS AN OPINION AND DECIDES NOT TO MAKE AN ADDITION OR HOLDS THAT THE ASSESSEE IS CORRECT AND ACCEPTS HIS POSITION OR STAND. (13) IT IS THEREFORE CLEAR FROM THE AFORESAID POS ITION THAT: (I) REASSESSMENT PROCEEDINGS CAN BE VALIDLY INITI ATED IN CASE RETURN OF INCOME IS PROCESSED UNDER SECTION 143(1) AND NO SCR UTINY ASSESSMENT IS UNDERTAKEN. IN SUCH CASES THERE IS NO CHANGE OF OPI NION. (II) REASSESSMENT PROCEEDING WILL BE INVALID IN CA SE THE ASSESSMENT ORDER ITSELF RECORDS THAT THE ISSUE WAS RAISED AND IS DEC IDED IN FAVOUR OF THE ASSESSEE. REASSESSMENT PROCEEDINGS IN THE SAID CASE S WILL BE HIT BY THE PRINCIPLE OF CHANGE OF OPINION. ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 30 (III) REASSESSMENT PROCEEDINGS WILL BE INVALID IN CASE WHERE THE ISSUE IS RAISED AND ANSWERED BY THE ASSESSEE IN ORIGINAL ASS ESSMENT PROCEEDINGS BUT THEREAFTER THE AO DOES NOT MAKE ANY ADDITION IN THE ASSESSMENT ORDER. IN SUCH SITUATIONS IT SHOULD BE ACCEPTED TH AT THE ISSUE WAS EXAMINED BY THE AO DID NOT FIND ANY GROUND OR REASO N TO MAKE ADDITION OR REJECT THE STAND OF THE ASSESSEE. HE FORMS AN OP INION. THE REASSESSMENT WILL BE INVALID BECAUSE THE AO HAD FOR MED AN OPINION IN THE ORIGINAL ASSESSMENT THOUGH HE HAD NOT RECORDED HI S REASONS. (22) IN THE LAST PARAGRAPH QUOTED ABOVE THE FULL BENCH REJECTED THE SUBMISSION THAT REASSESSMENT PROCEEDINGS WOULD BE JUSTIFIED IF THE ASSESSMENT ORDER IS SILENT OR DOES NOT RECORD REASO NS OR ANALYSIS OF MATERIAL ON RECORD. THIS THE REVENUE HAD PROPOUND ED WOULD SHOW NON- APPLICATION OF MIND BY THE AO. IT WAS HELD THAT TH E SAID SUBMISSION WAS FALLACIOUS. THE FULL BENCH EXPLAINED THAT WHEN AN ASSESSMENT ORDER WAS PASSED UNDER SECTION 143(3) A PRESUMPTION COULD BE RAISED THAT THE ORDER WAS PASSED AFTER APPLICATION OF MIND. REFERENCE WAS MADE TO CLAUSE (E) TO SECTION 114 OF THE INDIAN EVIDENCE ACT 1872. T HE CONTENTION IF ACCEPTED WOULD GIVE PREMIUM TO THE AUTHORITY EXERCI SING QUASI-JUDICIAL FUNCTION TO TAKE BENEFIT OF ITS OWN WRONG I.E. FAI LURE TO DISCUSS OR RECORD REASONS IN THE ASSESSMENT ORDER. THE AFORESAID O BSERVATIONS HAVE BEEN ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 31 MADE IN THE CONTEXT AND FOR EXPLAINING THE PRINCIP LE OF CHANGE OF OPINION. THE SAID PRINCIPLE WOULD APPLY EVEN WHEN THERE IS NO DISCUSSION IN THE ASSESSMENT ORDER BUT WHERE THE AO HAD APPLIE D HIS MIND. A WRONG DECISION WRONG UNDERSTANDING OR LAW OR FAILU RE TO DRAW PROPER INTERFERENCES FROM THE MATERIAL FACTS ALREADY ON RE CORD AND EXAMINED CANNOT BE RECTIFIED OR CORRECTED BY RECOURSE TO R EASSESSMENT PROCEEDINGS. THE ASSESSE IS REQUIRED TO DISCLOSE FULL AND TRUE MATERIAL FACTS AND NEED NOT EXPLAIN AND INTERPRET LAW. LEG AL INFERENCE HAS TO BE DRAWN BY THE AO FROM THE FACTS DISCLOSED. IT IS FO R THE AO TO UNDERSTAND AND APPLY THE LAW. IN SUCH CASES RESORT TO REASSES SMENT PROCEEDINGS IS NOT PERMISSIBLE BUT IN A GIVEN CASE WHERE AN ERRONE OUS ORDER PREJUDICIAL TO THE REVENUE IS PASSED OPTION TO CORRECT THE E RROR IS AVAILABLE UNDER SECTION 263 OF THE ACT. (23) THE SAID OBSERVATIONS DO NOT MEAN THAT EVEN IF THE AO DID NOT EXAMINE A PARTICULAR SUBJECT MATTER ENTRY OR CLAIM /DEDUCTION AND THEREFORE HAD NOT FORMED ANY OPINION IT MUST BE P RESUMED THAT HE MUST HAVE FORMED AN OPINION. THIS IS NOT WHAT WAS ARGUED BY THE ASSESSEE OR HELD AND DECIDED. THERE CANNOT BE DEEMED FORMATIO N OF OPINION EVEN WHEN THE PARTICULAR SUBJECT MATTER ENTRY OR CLAIM/ DEDUCTION IS NOT EXAMINED. ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 32 (25) THUS IF A SUBJECT MATTER ENTRY OR CLAIM/DEDU CTION IS NOT EXAMINED BY AN AO IT CANNOT BE PRESUMED THAT HE MUST HAVE E XAMINED THE CLAIM/ DEDUCTION OR THE ENTRY AND THEREFORE IT IS THE C ASE OF CHANGE OF OPINION. WHEN AT THE FIRST INSTANCE IN THE ORIGIN AL ASSESSMENT PROCEEDINGS NO OPINION IS FORMED THE PRINCIPLE OF CHANGE OF OPINION CANNOT AND DOES NOT APPLY. THERE IS A DIFFERENCE B ETWEEN CHANGE OF OPINION AND FAILURE OR OMISSION OF THE AO TO FORM A N OPINION ON A SUBJECT MATTER ENTRY CLAIM DEDUCTION. WHEN THE AO FAILS TO EXAMINE THE SUBJECT MATTER ENTRY CLAIM OR DEDUCTION HE FORMS NO OPIN ION. IT IS A CASE OF NO OPINION. 8.6 IN THE INSTANT CASE THE MATTER REGARDING TAXAB ILITY OF ARBITRATION RECEIPTS WAS NOT EXAMINED BY THE ASSESSING OFFICER DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. NO QUERY WAS RAIS ED OR ENQUIRY WAS MADE BY THE ASSESSING OFFICER. WE DONOT FIND THAT THE ASSESSEE HAS MADE ANY SUBMISSIONS BEFORE THE ASSESSING OFFICER IN RES PECT OF ARBITRATION PROCEEDINGS AND ARBITRATION RECEIPTS DURING THE YEA R. THE COPY OF ARBITRATION AWARD WAS NOT FILED BEFORE THE ASSESSIN G OFFICER. ONLY DISCLOSURE MADE BY THE ASSESSEE IS IN THE BALANCE S HEET WHERE AN AMOUNT OF RS 91 59 305 HAS BEEN SHOWN AS ADVANCES FROM VAR IOUS PWDS AND REFLECTED UNDER CURRENT LIABILITIES. FURTHER IN T AX AUDIT REPORT IN ITEM NO. ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 33 13 WHICH RELATES TO ITEMS NOT CREDITED IN THE PROFI T/LOSS ACCOUNT IT IS MENTIONED THAT ESCALATION CLAIMS ACCEPTED DURING T HE PREVIOUS YEAR AMOUNTING TO RS 91 59 305 CREDITED ON ESCALATION HE AD. IT IS A CLEAR CASE OF FAILURE OR OMISSION ON THE PART OF THE ASSESSING OFFICER TO EXAMINE THE SUBJECT ESCALATION RECEIPTS WHICH ARE SUBJECT MATTE R OF ARBITRATION PROCEEDINGS. THE ASSESSING OFFICER HAS NOT FORMED A NY OPINION AT FIRST PLACE AND HENCE THE QUESTION OF CHANGE OF OPINION DOESNT ARISE IN THE INSTANT CASE. 8.7 NOW COMING TO THE CONTENTION OF THE LD AR THAT ON THE SAME FACTS WHICH WERE ALREADY AVAILABLE IN THE ORIGINAL ASSESS MENT RECORDS IN TERMS OF DISCLOSURE IN BALANCE SHEET AND TAX AUDIT REPORT REOPENING OF ASSESSMENT CANNOT BE MADE. IN SUPPORT OF HIS CONTE NTION HE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN CASE OF INDIAN OIL CORPORATION (SUPRA) AND COCA COLA EXPORT CORPORAT ION (SUPRA) BESIDES OTHERS. PER CONTRA THE REVENUE HAS RELIED UPON TH E DECISION OF HONBLE SUPREME COURT IN CASE OF KALYANJI MAVIJI (102 ITR 2 87). WE HAVE CAREFULLY GONE THROUGH ALL THESE DECISIONS AND OF T HE VIEW THAT THERE IS NO REQUIREMENT THAT INFORMATION OR FACTS OR MATERIAL M UST BE EXTRANEOUS TO THE RECORDS OF THE ORIGINAL ASSESSMENT. WHERE THE FACTS HAVE BEEN CONSIDERED AND EXAMINED AND AN OPINION HAS BEEN FO RMED IN THE ORIGINAL ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 34 ASSESSMENT PROCEEDINGS THEN IT WOULD BE A CASE OF REAPPRAISAL OF THE SAME FACTS AND MATERIAL AND THE SAME CANNOT FORM TH E BASIS OF REASSESSMENT. WHERE HOWEVER THE FACTS CAME TO THE NOTICE OF THE ASSESSING OFFICER BY AN INVESTIGATION INTO THE MATE RIAL ALREADY ON RECORD OR BY RESEARCH INTO THE LAW APPLICABLE THERETO WHICH B RINGS OUT AN ANGLE OR ASPECT THAT HAS BEEN MISSED EARLIER THE ASSESSING OFFICER WOULD BE WELL WITHIN HIS JURISDICTION TO CARRY OUT THE REASSESSME NT. IN THE INSTANT CASE AS WE HAVE HELD EARLIER IT IS A CLEAR CASE OF FAIL URE OR OMISSION ON THE PART OF THE ASSESSING OFFICER TO EXAMINE THE SUBJECT ESC ALATION RECEIPTS WHICH ARE SUBJECT MATTER OF ARBITRATION PROCEEDINGS. IT I S ONLY SUBSEQUENT TO CLOSURE OF THE ORIGINAL ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THE MATTER RELATING TO TAXABILITY OF ARBITR ATION RECEIPTS WHICH HAS ESCAPED TAXATION AND THEREAFTER PROCEEDED TO ISSUE THE NOTICE FOR REASSESSMENT. IN OUR VIEW IT IS NOT A CASE OF REAP PRAISAL OF MATTER ALREADY ON RECORD AS THE EXISTENCE OF THE MATTER WAS NEITHE R REALIZED NOR ITS IMPLICATION WAS RECOGNIZED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT PROCEEDINGS. 8.8 IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF T HE CASE AND IN LIGHT OF ABOVE DISCUSSIONS WE DO NOT SEE ANY INFIRMITY IN T HE ASSESSING OFFICER IN REOPENING THE ASSESSMENT PROCEEDINGS U/S 147 AND IN ITIATING THE ITA 31/JP/2015_ SHRI CHANDIRAM VS. ITO 35 PROCEEDINGS BY ISSUANCE OF NOTICE U/S 148 OF THE AC T. HENCE THE GROUNDS TAKEN BY THE ASSESSEE ARE DISMISSED. 9. IN THE RESULT THE ASSESSEES APPEAL IS DISMISSE D. 10. IN THIS CASE THE REVENUE HAS ALSO FILED A CROS S APPEAL BEING ITA NO. 11/JP/2015 WHEREIN THE REVENUE HAS CHALLENGED THE ORDER OF THE LD CIT(A) WHERE HE HAS QUASHED THE ADDITIONS ON MERIT S. BUT WE WANT TO HEAR THE REVENUES APPEAL IN DETAIL ON MERIT FOR W HICH THE REGISTRY IS DIRECTED TO POST THE MATTER FOR FRESH HEARING TO GI VE AN OPPORTUNITY TO BOTH THE PARTIES AND TO HEAR T HE ARGUMENTS ON MERITS. ORDER PRONOUNCED IN THE OPEN COURT ON 14.10.2016. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14TH OCTOBER 2016 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI CHANDIRAM KOTA. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO WARD 1(1) KOTA. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 31/JP/2015) VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ@ ASST. REGISTRAR