The DCIT, 2(1), v. M/s Turquoise Investment and Finance Pvt. Ltd.,

ITA 374/IND/2007 | 1999-2000
Pronouncement Date: 12-01-2011 | Result: Dismissed

Appeal Details

RSA Number 37422714 RSA 2007
Assessee PAN AABCT5911H
Bench Indore
Appeal Number ITA 374/IND/2007
Duration Of Justice 3 year(s) 7 month(s) 13 day(s)
Appellant The DCIT, 2(1),
Respondent M/s Turquoise Investment and Finance Pvt. Ltd.,
Appeal Type Income Tax Appeal
Pronouncement Date 12-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 12-01-2011
Date Of Final Hearing 12-01-2011
Next Hearing Date 12-01-2011
Assessment Year 1999-2000
Appeal Filed On 30-05-2007
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO.374/IND/2007 A.Y. 1999-00 DY. COMMISSIONER OF INCOME TAX 2(1) UJJAIN APPELLANT VS TURQUOISE INVESTMENTS & FINANCE PRIVATE LIMITED NAGDA PAN AABCT5911H RESPONDENT ITA NO.237/IND/2007 A.Y. 2003-04 TURQUOISE INVESTMENTS & FINANCE PRIVATE LIMITED NAGDA PAN AABCT5911H APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 2(1) UJJAIN RESPONDENT DEPTT. BY : SHRI K.K. SINGH ASSESSEES BY : SHRI YOGESH A.DHAR AND SHRI A.L. JAIN 2 O R D E R PER JOGINDER SINGH JUDICIAL MEMBER THE REVENUE IS IN APPEAL FOR THE ASSESSMENT YEAR 19 99-00 AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) DATED 21 ST MARCH 2007 AND THE ASSESSEE IS IN APPEAL FOR THE ASSESSMENT YEAR 2003-04 AGAINST THE ORDER O F THE LD. FIRST APPELLATE AUTHORITY DATED 16.1.2007. 2. WE SHALL TAKE UP THE APPEAL OF THE REVENUE (ITA NO. 374/IND/07) FIRST WHEREIN THE ONLY GROUND RAISED IS THAT IF THE PRINCIPAL BUSINESS OF THE ASSESSEE IS DEALING IN IN VESTMENT WHETHER INCOME FROM SUCH DEALING IS TO BE ASSESSED UNDER THE HEAD BUSINESS INCOME OR CAPITAL GAINS AND ALSO WHETHER THE INVESTMENT IS TO BE ASSESSED AS BUSINESS INCOME WH ETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN ALLOWING INDEXATION TO THE ASSESSEE ON THE SALE OF INVESTMENTS. 3. DURING HEARING THE LEARNED CIT DR SHRI K.K.SING H RELIED ON THE ASSESSMENT ORDER WHEREAS THE LD. COUNSEL FOR THE ASSESSEE SHRI YOGESH A. DHAR AND SHRI A.L. JAIN SU PPORTED 3 THE IMPUGNED ORDER. THE ASSESSEE HAS ALSO FILED PAP ER BOOK WHICH IS KEPT ON RECORD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE ASSES SEE SOLD CERTAIN SHARES WHICH WERE CLAIMED TO BE INVESTMENT ON WHICH INDEXATION BENEFIT WAS CLAIMED BY THE ASSESSEE IN I TS COMPUTATION OF CAPITAL GAINS. THE LEARNED ASSESSIN G OFFICER TREATED THE SAME AS BUSINESS TRANSACTION AND DENIED THE BENEFIT OF INDEXATION ON THE PLEA THAT SINCE THE SH ARES WERE HELD AS STOCK IN TRADE AND THERE WAS FREQUENCY OF P URCHASE AND SALE THEREFORE IT WAS A BUSINESS INCOME. HOWEVER THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE SAME LE ARNED ASSESSING OFFICER VIDE ORDER DATED 22.12.2006 (A.Y. 2004-05) TREATED IDENTICAL INVESTMENT IN SHARES AS CAPITAL ASSET AND COMPUTED CAPITAL LOSS. IT WAS ALSO POINTED OUT TH AT ASSESSING OFFICER FOR THE ASSESSMENT YEAR 1997-98 2001-02 AN D 2003-04 ALSO TREATED THE INVESTMENT IN SHARES AS INVESTMENT AND NOT STOCK IN TRADE. IT WAS ALSO ASSERTED THAT NO BORROW ING WERE 4 MADE BY THE ASSESSEE TO INVEST IN THESE SHARES AND ABOUT 90% OF THE INVESTMENTS ARE MADE IN GROUP COMPANIES IN O RDER TO HAVE CONTROL OVER SUCH COMPANIES. THIS ASSERTION OF THE ASSESSEE WAS NOT CONTROVERTED BY THE REVENUE. IN TH E IMPUGNED ORDER THERE IS A MENTION THAT THE ENTIRE INVESTMENT IN SHARES WAS A CAPITAL ASSET SHOWN UNDER THE HEAD INV ESTMENT IN THE BALANCE-SHEET OF THE ASSESSEE. THE SAME ASSESSI NG OFFICER VIDE ORDER DATED 22.12.2006 (A.Y. 2004-05) TREATED IDENTICAL INVESTMENT IN SHARES AS CAPITAL ASSET A ND COMPUTED CAPITAL LOSS AND NOW IN THIS ASSESSMENT YEAR HE CANNOT BE PERMITTED TO TAKE A DIFFERENT VIEW. IN VIEW OF THE SE FACTS WE ARE OF THE CONSIDERED OPINION THAT THE LEARNED ASSESSIN G OFFICER WAS NOT JUSTIFIED IN TREATING THESE INVESTMENTS AS STOCK IN TRADE AND DENYING THE BENEFIT OF INDEXATION ESPECIALLY WH EN FOR THE ASSESSMENT YEAR 2003-04 THE SAME ASSESSING OFFICER TOOK A CONTRARY STAND BY TREATING THESE INVESTMENTS IN SHA RES AS INVESTMENT AND NOT STOCK IN TRADE. CONSEQUENTLY WE ARE IN AGREEMENT WITH THE DIRECTION OF THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS) IN DIRECTING TO ALLOW INDEXATI ON BENEFIT. 5 WE ACCORDINGLY UPHOLD THE ORDER OF THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) AS THERE IS NO INFIRMITY IN THE SAME AND DISMISS THE APPEAL OF THE REVENUE. 5. NOW WE SHALL TAKE UP THE APPEAL OF THE ASSESSEE (ITA NO. 237/IND/2007) WHEREIN FIRST GROUND RAISED IS THAT O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW TH E LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFI RMING THE ACTION OF THE ASSESSING OFFICER IN REOPENING THE AS SESSMENT U/S 147 OF THE ACT. AT THE OUTSET THE LEARNED CIT DR CONTENDED THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN THE CASE OF SAMRUDDHI SWASTIK TRADI NG & INVESTMENTS LIMITED V. ACIT DATED 29.10.2010 IN IT A NOS. 634 TO 636/IND/06 AND 613/IND/05. THIS FACTUAL MATRIX W AS CONSENTED TO BE CORRECT BY THE LD. COUNSEL FOR THE ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. IN VIEW OF THE ABOVE ASSERTION WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION OF THE A FORESAID ORDER OF THE TRIBUNAL :- 6 3. SHRI YOGESH JAIN CA APPEARED ON BEHALF OF T HE ASSESSEE. VARIOUS GROUNDS HAVE BEEN TAKEN BY THE AS SESSEE WITH REGARD TO LEGALITY OF REOPENING AND CONSEQUENT ASSESSMENT MADE THEREON HOWEVER DURING THE COURSE OF HEARING LD.AUTHORIZED REPRESENTATIVE PRESSED LEGALI TY OF REOPENING OF ASSESSMENT IN THE ABSENCE OF ANY NEW MATERIAL FOUND BY THE ASSESSING OFFICER. IT WAS CON TENDED BY THE LD.AUTHORIZED REPRESENTATIVE THAT THE ASSESS EE HAS FURNISHED ALL INFORMATION WITH RESPECT OF HIS SOURC E OF INCOME AND ASSESSMENT WAS FRAMED U/S 143(1) THEREA FTER THERE WAS NO ANY ADDITIONAL INFORMATION OR NEW MATE RIAL BEFORE THE AO TO JUSTIFY THE AOS ACTION FOR A REAS ON TO BELIEVE THAT THERE WAS ESCAPEMENT OF INCOME. ON THE OTHER HAND THE LD. CIT DR SUPPORTED THE REOPENING OF ASSESSMENT ON THE BASIS OF DETAILED FINDING RECORDE D BY THE ASSESSING OFFICER AND JUSTIFICATION GIVEN BY THE CI T(A) BOTH ON FACTS AND LAW UPHOLDING THE VALIDITY OF RE OPENING. FROM THE RECORD WE FOUND THAT THE ASSESSEE IS AN INVESTMENT COMPANY OF GRASIM GROUP OF INDUSTRIES. R ETURN WAS FILED AT A LOSS WHICH WAS PROCESSED U/S 143(1) FOR THE RELEVANT ASSESSMENT YEAR UNDER CONSIDERATION AND TH E RETURNED INCOME WAS ACCEPTED. THEREAFTER THE AO RECORDED DETAILED AND SPECIFIC REASONS FOR ISSUE OF NOTICE U/S 148 TO THE EFFECT THAT RENTAL INCOME DECLARED B Y THE ASSESSEE WAS TO BE CHARGED UNDER THE HEAD INCOME F ROM HOUSE PROPERTY AND THE DEPRECIATION CLAIMED ON SUC H PROPERTY WAS NOT ALLOWABLE AS BUSINESS EXPENDITURE AND SUCH EXCESS CLAIM HAS RESULTED IN TO UNDER ASSESSME NT OF INCOME. CONTENTION OF LD.AUTHORIZED REPRESENTATIVE WAS THAT OFFICE PREMISES WERE BEING USED FOR THE PURPOS E OF ASSESSEES BUSINESS HENCE THE QUESTION OF TAKING RENTALS IN RESPECT THEREOF AS INCOME FROM HOUSE PROPERTY DOES NOT ARISE. HE FURTHER CONTENDED THAT THE ASSESSEE IS TH E EXCLUSIVE OWNER OF THESE OFFICE PREMISES AND THE SA ME HAVE BEEN GIVEN ON LEASE AND LICENCE BASIS IN THE NORMAL COURSE OF BUSINESS OF THE ASSESSEE. THE LD.AUTHORIZED REPRESENTATIVE DRAWN OUR ATTENTION TO THE TERMS OF LEASE AND LICECING AGREEMENT AND SUBMITTED THAT LETTING O UT OF PROPERTY WAS NOT MERELY A TRANSACTION OF LETTING OU T BUT THE SAME IS A COMMERCIAL EXPLOITATION OF ITS PROPER TY. AS PER LD.AUTHORIZED REPRESENTATIVE WHEN THE LETTING OUT OF PROPERTY IS FOR COMMERCIAL EXPLOITATION OF THE PROP ERTY THE INCOME THEREOF IS TO BE TAXED UNDER THE HEAD INCOM E FROM 7 BUSINESS AND NOT AS INCOME FROM HOUSE PROPERTY. ACCORDINGLY THERE WAS CORRECT CLAIM OF DEPRECIATIO N ON SUCH BUILDING AS BUSINESS EXPENDITURE. WITH REGARD TO THE VALIDITY OF REOPENING LD.AUTHORIZED REPRESENTATIVE PLACED RELIANCE ON THE DECISION OF I.T.A.T. MUMBAI BENCH IN AIPITA MARKETING (P) LIMITED VS. ITO 21 SOT 302 I N SUPPORT OF PROPOSITION THAT IN ABSENCE OF ANY NEW M ATERIAL THE AO IS NOT EMPOWERED TO REOPEN THE ASSESSMENT WHETHER ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(1)/143(3). LD.AUTHORIZED REPRESENTATIVE FURTHER CONTENDED THAT WHILE HOLDING WHETHER IN A CASE WH ERE ASSESSMENT IS MADE U/S 143(1) AND NOT U/S 143(3) IT IS NOT POSSIBLE TO HOLD VIEW THAT INCOME ESCAPING ASSESSME NT IS ALWAYS JUSTIFIED. AS PER LD.AUTHORIZED REPRESENTATI VE THE TRIBUNAL HAS ELABORATELY DISCUSSED THE PROPOSITION OF LAW LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF R AJESH JHAVERI 291 ITR 500 AND HAVE DISTINGUISHED IT WHIL E COMING TO THE CONCLUSION THAT THERE WAS NO VALID RE OPENING EVEN IF THE ASSESSMENT WAS MADE U/S 143(1). THE LD.AUTHORIZED REPRESENTATIVE ALSO RELIED ON THE DEC ISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF BAPALAL & COMPANY EXPORT 289 ITR 37 IN SUPPORT OF THE PROPO SITION THAT IN THE ABSENCE OF NEW MATERIAL THE AO IS NOT EMPOWERED TO REOPEN AN ASSESSMENT IRRESPECTIVE OF WHETHER IT IS MADE U/S 143(1) OR 143(3). RELIANCE W AS ALSO PLACED ON THE DECISION OF BOMBAY I.T.A.T. IN THE C ASE OF S. VINOD KUMAR & COMPANY IN I.T.A.NO. 3300/MUM/2004 ORDER DATED 3RD JULY 2008 AND DECISION IN CASE OF DRIZZLE MARKETING PRIVATE LIMITED IN I.T.A.NO. 3737/MUM/200 5 ORDER DATED 22 ND JANUARY 2008 WHEREIN IT WAS HELD THAT IN THE ABSENCE OF FRESH MATERIAL HAD COME TO THE NOTIC E OF AO NOTICE U/S 148 COULD NOT BE ISSUED EVEN WHERE ASSES SMENT WAS ORIGINALLY COMPLETED U/S 143(1) OF THE ACT. 4. ON THE OTHER HAND THE LD. CIT DR SHRI R.K. CHAUDHARY APPEARED ON BEHALF OF THE REVENUE AND STRONGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORIT IES WITH REGARD TO THE VALIDITY OF THE REOPENING. RELIANCE W AS PLACED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS PRIVATE LIMITE D (SUPRA) WHEREIN IT WAS HELD THAT IN CASE OF INTIM ATION U/S 143(1) THE AO CAN REOPEN THE ASSESSMENT IF THERE A RE REASONS TO BELIEVE THAT INCOME OF ASSESSEE HAS ESCA PED ASSESSMENT. AS PER THE LD. CIT DR THE ASSESSEE HAS 8 WRONGLY CLAIMED INCOME FROM HOUSE PROPERTY AS INCOM E FROM BUSINESS IN RESPECT OF THE OFFICE PREMISES GIV EN ON LEASE AND LICENCE AGREEMENT ACCORDINGLY CLAIM OF DEPRECIATION UNDER THE BUSINESS HEAD WAS WRONG WHI CH NECESSITATED REOPENING OF ASSESSMENT U/S 147. RELIA NCE WAS ALSO PLACED ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF RAYMOND WOLLENS MILLS LIMITED 236 I TR 34 WHREIN REOPENING OF ASSESSMENT WAS HELD TO BE JUSTI FIED U/S 147(A). 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS CAREFU LLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D ALSO DELIBERATED ON THE CASE LAWS CITED BY THE LD.AUTHOR IZED REPRESENTATIVE DEALT WITH BY LOWER AUTHORITIES IN THEIR RESPECTIVE ORDERS AND ALSO CASE LAWS CITED BY LD. C IT DR IN THE CONTEXT OF FACTUAL MATRIX OF THE CASE. FROM THE RECORD WE FOUND THAT THE ASSESSEE WAS EARNING RENTAL INCOM E IN RESPECT OF BUILDING GIVEN ON LEASE AND LICENCE. THE ASSESSEE WAS CLAIMING SUCH INCOME AS INCOME FROM BUSINESS AND THEREBY CLAIMED THE DEPRECIATION ON SU CH PROPERTY AS BUSINESS EXPENDITURE. THE RETURN SO FIL ED WAS PROCESSED BY THE ASSESSING OFFICER U/S 143(1) THER EAFTER WITHIN THE SPECIFIED LIMIT PRESCRIBED UNDER THE STA TUTE THE AO INITIATED PROCEEDINGS U/S 147 BY ISSUE OF NOTICE U/S 148. REASONS FOR REOPENING WAS ALSO RECORDED. THE C RUX OF THE PROVISIONS OF SEC.143(1) UP TO 31 ST MARCH 1989 WAS THAT AFTER A RETURN OF INCOME WAS FILED THE ASSESSI NG OFFICER COULD MAKE AN ASSESSMENT UNDER SECTION 143( 1) WITHOUT REQUIRING PRESENCE OF THE ASSESSEE OR PRODU CTION BY HIM OF ANY EVIDENCE IN SUPPORT OF THE RETURN. W HERE THE ASSESSEE OBJECTED TO SUCH ASSESSMENT OR WHERE THE O FFICER WAS OF THE OPINION THAT THE ASSESSMENT WAS INCORREC T OR INCOMPLETE OR THE OFFICER DID NOT COMPLETE THE ASSE SSMENT UNDER SECTION 143(1) BUT WANTED TO MAKE AN INQUIRY A NOTICE UNDER SECTION 143(2) WAS REQUIRED TO BE ISSU ED TO THE ASSESSEE REQUIRING HIM TO PRODUCE EVIDENCE IN S UPPORT OF HIS RETURN. AFTER CONSIDERING THE MATERIAL AND EVIDENCE PRODUCED AND AFTER MAKING NECESSARY INQUIRIES THE OFFICER HAD POWER TO MAKE ASSESSMENT UNDER SECTION 143(3). 6. WITH EFFECT FROM 1 ST APRIL 1989 THE PROVISIONS UNDERWENT SUBSTANTIAL AND MATERIAL CHANGES. A NEW SCHEME WAS INTRODUCED AND THE NEW SUBSTITUTED SECTI ON 143(1) PRIOR TO SUBSEQUENT SUBSTITUTION WITH EFFECT FROM 1 ST JUNE 1999 IN CLAUSE(A) A PROVISION WAS MADE THAT W HERE A 9 RETURN WAS FILED UNDER SECTION 139 OR IN RESPONSE T O A NOTICE UNDER SECTION 142(1) AND ANY TAX OR REFUND W AS FOUND DUE ON THE BASIS OF SUCH RETURN AFTER ADJUSTM ENT OF TAX DEDUCTED AT SOURCE ANY ADVANCE TAX OR ANY AMOU NT PAID OTHERWISE BY WAY OF TAX OR INTEREST AN INTIMA TION WAS TO BE SENT U/S 143(1)(A) WITHOUT PREJUDICE TO THE PROVISIONS OF SECTION 143(2) TO THE ASSESSEE SPECIF YING THE SUM SO PAYABLE AND SUCH INTIMATION WAS DEEMED TO BE A NOTICE OF DEMAND ISSUED UNDER SECTION 156. THE FIR ST PROVISO TO SECTION 143(1)(A) ALLOWED THE DEPARTMENT TO MAKE CERTAIN ADJUSTMENTS IN THE INCOME OR LOSS DECL ARED IN THE RETURN. THEY WERE AS FOLLOWS: A) AN ARITHMETICAL ERROR IN THE RETURN ACCOUNTS AND DOCUMENTS ACCOMPANYING IT WERE TO BE RECTIFIED. B) ANY LOSS CARRIED FORWARD DEDUCTIONS ALLOWANCE OR RELIEF WHICH ON THE BASIS OF THE INFORMATION AVAILABLE IN SUCH RETURN ACCOUNTS OR DOCUMENTS WAS PRIMA FACIE ADMISSIBLE BUT WHICH WAS NOT CLAIMED IN THE RETURN WAS TO BE ALLOWED; AND C) ANY LOSS CARRIED FORWARD RELIEF CLAIMED IN THE RET URN WHICH ON THE BASIS OF THE INFORMATION AS AVAILABLE IN SUCH RETURN ACCOUNTS OR DOCUMENTS WERE PRIMA FACIE INADMISSIBLE WAS TO BE DISALLOWED. 7. WHAT WERE PERMISSIBLE UNDER THE FIRST PROVISO TO SE CTION 143(1)(A) TO BE ADJUSTED WERE (I) ONLY APPARENT ARITHMETICAL ERRORS IN THE RETURN ACCOUNTS OR DOCU MENTS ACCOMPANYING THE RETURN (II) LOSS CARRIED FORWARD DEDUCTION ALLOWANCE OR RELIEF WHICH WAS PRIMA FAC IE ADMISSIBLE ON THE BASIS OF INFORMATION AVAILABLE IN THE RETURN BUT NOT CLAIMED IN THE RETURN AND SIMILARLY (III) THOSE CLAIMS WHICH WERE ON THE BASIS OF THE INFORMA TION AVAILABLE IN THE RETURN PRIMA FACIE INADMISSIBLE WERE TO BE RECTIFIED/ALLOWED/DISALLOWED. WHAT WAS PERMISSIB LE FOR CORRECTION OF ERRORS APPARENT ON THE BASIS OF THE DOCUMENTS ACCOMPANYING THE RETURN? THE ASSESSING OFFICER HAD NO AUTHORITY TO MAKE ADJUSTMENTS OR ADJ UDICATE UPON ANY DEBATABLE ISSUE. IN OTHER WORDS THE ASSE SSING OFFICER HAD NO POWER TO GO BEHIND THE RETURN ACCOU NTS OR DOCUMENTS EITHER IN ALLOWING OR IN DISALLOWING DEDU CTION ALLOWANCE OR RELIEF. 10 8. THE PROVISIONS OF SECTION 143(1)(A) ARE WITHOUT PREJUDICE TO THE PROVISIONS OF SECTION 143(2). THO UGH TECHNICALLY THE INTIMATION ISSUED WAS DEEMED TO BE A DEMAND NOTICE ISSUED UNDER SECTION 156 THAT DID NOT PER SE PRECLUDE THE RIGHT OF THE ASSESSING OFFICER TO PROC EED UNDER SECTION 143(2). THAT RIGHT IS RESERVED AND NO T TAKEN AWAY. BETWEEN THE PERIOD FROM 1 ST APRIL 1989 TO 31 ST MARCH 1998 THE SECOND PROVISO TO SECTION 143(1)(A) REQUIRED THAT WHERE ADJUSTMENTS WERE MADE UNDER FIR ST PROVISO TO SECTION 143(1)(A) AN INTIMATION HAD TO BE SENT TO THE ASSESSEE NOTWITHSTANDING THAT NO TAX OR REFU ND WAS DUE FROM HIM AFTER MAKING SUCH ADJUSTMENTS. WITH E FFECT FROM 1 ST APRIL 1998 SECOND PROVISO TO SECTION 143(1)(A) WAS SUBSTITUTED BY THE FINANCE ACT 1997 WHICH WAS OPERATIVE TILL 1 ST JUNE 1999. THE REQUIREMENT WAS THAT INTIMATION WAS TO BE SENT TO THE ASSESSEE WHETHER O R NOT ANY ADJUSTMENTS HAD BEEN MADE UNDER THE FIRST PROVI SO TO SECTION 143(1) AND NOTWITHSTANDING THAT NO TAX OR I NTEREST WAS FOUND DUE FROM THE ASSESSEE CONCERNED. BETWEEN 1 ST APRIL 1998 TO 31 ST MARCH 1999 SENDING OF AN INTIMATION UNDER SECTION 143(1)(A) WAS MANDATORY. THIS POSITI ON CONTINUED TILL ALL THE ASSESSMENT YEARS UNDER CONSI DERATION BEFORE US. 9. THUS LEGISLATIVE INTENT IS VERY CLEAR FROM THE US E OF THE WORD INTIMATION AS SUBSTITUTED FOR ASSESSMENT THE ASSESSING OFFICER IS FREE TO MAKE ANY ADDITION AFTE R GRANT OF OPPORTUNITY TO THE ASSESSEE. BY MAKING ADJUSTME NTS UNDER THE FIRST PROVISO TO SECTION 143(1)(A) NO AD DITION WHICH IS IMPERMISSIBLE BY THE INFORMATION IN THE RE TURN COULD BE MADE BY THE ASSESSING OFFICER. REASON IS THAT UNDER SECTION 143(1)(A) NO OPPORTUNITY IS GRANTED TO THE ASSESSEE AND THE ASSESSING OFFICER PROCEEDS ON HIS OPINION ON THE BASIS OF THE RETURN FILED BY THE ASSESSEE. THE VERY FACT THAT NO OPPORTUNITY OF HEARING BEING GIVEN UND ER SECTION 143(1)(A) INDICATES THAT THE ASSESSING OFFI CER HAS TO PROCEED ACCEPTING THE RETURN AND MAKING THE PERMISSIBLE ADJUSTMENTS ONLY. 10. AS A RESULT OF INSERTION OF EXPLANATION TO SECTION 143 BY THE FINANCE ACT (NO.2) OF 1991 WITH EFFECT FROM 1-10- 1991 AND SUBSEQUENTLY WITH EFFECT FROM 1-6-1994 BY FINANCE ACT 1994 AND ULTIMATELY OMITTED WITH EFFECT FROM 1-6-1999 BY EXPLANATION AS INTRODUCED BY THE FINANC E ACT (NO.2) OF 1999 AN INTIMATION SENT TO THE ASSESSEE UNDER 11 SECTION 143(1)(A) WAS DEEMED TO BE AN ORDER FOR PU RPOSES OF SECTION 246 BETWEEN 1-6-94 TO 31-3-95 AND UNDER SECTION 264 BETWEEN 1-10-1991 AND 31-5-1999. THE EXPRESSIONS INTIMATION AND ASSESSMENT ORDER HAV E BEEN USED AT DIFFERENT PLACES. CONTEXTUAL DIFFERENCE BE TWEEN THE TWO EXPRESSIONS HAS TO BE UNDERSTOOD IN THE CONTEXT OF THE EXPRESSIONS USED. ASSESSMENT IS USED AS MEANING SO ME TIMES THE COMPUTATION OF INCOME SOME TIMES THE DETERMINATION OF THE AMOUNT OF TAX PAYABLE AND SOM E TIMES THE WHOLE PROCEDURE LAID DOWN IN THE ACT FOR IMPOSING LIABILITY UPON THE TAX PAYER. IN THE SCH EME OF THINGS THE INTIMATION UNDER SECTION 143(1)(A) CANNO T BE TREATED TO BE AN ORDER OF ASSESSMENT. THE DISTINCT ION IS ALSO WELL BROUGHT OUT BY THE STATUTORY PROVISIONS A S THEY STOOD AT DIFFERENT POINTS OF TIME. UNDER SECTION 143(1)(A) AS STOOD PRIOR TO 1 ST APRIL 1989 THE ASSESSING OFFICER HAD TO PASS AN ORDER IF HE DECIDED TO ACCEPT THE RETURN BUT UNDER THE AMENDED PROVISIONS THE REQUIREMENT OF PA SSING OF AN ASSESSMENT ORDER HAS BEEN DISPENSED WITH AND INSTEAD AN INTIMATION IS REQUIRED TO BE SENT. 11. THE CENTRAL BOARD OF DIRECT TAXES (CBDT) HAD ISSUE D VARIOUS CIRCULARS IN THIS REGARD EXPLAINING THE PUR POSE BEHIND THE PROVISIONS OF SECTION 143(1)(A) NAMELY TO MINIMIZE THE DEPARTMENTAL WORK IN SCRUTINIZING EACH AND EVERY RETURN AND TO CONCENTRATE ON SELECTIVE SCRUT INY OF RETURNS. 12. UNDER THE FIRST PROVISO TO SECTION 143(1) WITH EFF ECT FROM 1 ST JUNE 1999 EXCEPT AS PROVIDED IN THE PROVISION ITSELF THE ACKNOWLEDGMENT OF THE RETURN SHALL BE D EEMED TO BE INTIMATION UNDER SECTION 143(1) WHERE (A) EITHER NO SUM IS PAYABLE BY THE ASSESSEE OR (B) NO REFUND IS DUE TO HIM. IT IS SIGNIFICANT THAT THE ACKNOWLEDGEMENT IS MOSTL Y DONE BY THE MINISTERIAL STAFF AND NOT BY THE ASSESSING O FFICER. THUS THE INTIMATION DOES NOT HAVE ALL THE CHARACTER ISTICS OF AN ASSESSMENT AS UNDERSTOOD IN THE COMMON PARLANCE OR EVEN DURING TAXING STATUTES. FURTHER THE INTIMATI ON UNDER SECTION 143(1)(A) WAS DEEMED TO BE A NOTICE OF DEM AND UNDER SECTION 156 FOR THE PURPOSE OF MAKING MACHINE RY PROVISIONS RELATING TO RECOVERY OF TAX APPLICABLE. BY SUCH APPLICATION ONLY TAX AMOUNT INDICATED TO BE PAYABLE BY THE INTIMATION BECAME PERMISSIBLE AND NOTHING MORE CAN BE INFERRED FROM THE DEEMING SECTION. 12 13. ON A COMPARISON OF THE PROVISIONS AS IT STOOD BEF ORE THE DIRECT TAX LAWS (AMENDMENT) ACT 1987 AND THE PROVISIONS AS SUBSTITUTED BY THE DIRECT TAX LAWS (AMENDMENT) ACT 1987 IT WOULD BE CLEAR THAT: - THE SCOPE AND EFFECT OF SECTION 147 AS SUBSTITUTED WITH EFFECT FROM 1 ST APRIL 1989 AS ALSO SECTIONS 148 TO 152 ARE SUBSTANTIALLY DIFFERENT FROM THE PROVISIONS AS STOO D PRIOR TO SUCH SUBSTITUTION. 14. UNDER OLD PROVISIONS OF SECTION 147 SEPARATE CLAU SES (A) AND (B) LAID DOWN THE CIRCUMSTANCES UNDER WHICH INCOME ESCAPING ASSESSMENT FOR THE PAST ASSESSMENT YEARS COULD BE ASSESSED OR REASSESSED. TO CONFER JURISDI CTION UNDER SECTION 147(A) TWO CONDITIONS WERE REQUIRED T O BE SATISFIED: FIRSTLY THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT INCOME PROFITS OR GAINS CHARGEABLE TO INCOME- TAXABLE HAVE ESCAPED ASSESSMENT AND SECONDLY HE M UST ALSO HAVE REASON TO BELIEVE THAT SUCH ESCAPEMENT HA S OCCURRED BY REASON OF EITHER OMISSION OR FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY OR TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT OF THAT YEAR. B OTH THESE CONDITIONS ARE CONDITIONS PRECEDENT TO BE SATISFIED BEFORE THE ASSESSING OFFICER COULD HAVE JURISDICTION TO IS SUE NOTICE UNDER SECTION 148 READ WITH SECTION 147(A). BUT UNDER THE SUBSTITUTED NEW SECTION 147 THE EXISTENC E OF ONLY THE FIRST CONDITION WOULD SUFFICE. IN OTHER WORDS IF THE ASSESSING OFFICER FOR WHATEVER REASON HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT IT CONF ERS JURISDICTION TO REOPEN THE ASSESSMENT. IT IS HOWE VER TO BE NOTED THAT BOTH THE CONDITIONS MUST BE FULFILLED I F THE CASE FALLS WITHIN THE AMBIT OF PROVISO TO SECTION 147 AS STOOD AFTER AMENDMENT. 15. THUS AS PER THE AMENDED PROVISIONS OF SEC.147 FOR RE- OPENING OF AN ASSESSMENT THERE SHOULD BE A REASON T O BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR. SUCH REASON T O BELIEVE CAN BE RAISED IN ANY MANNER AND IS NOT QUAL IFIED BY A PRE-CONDITION OF FAITH AND TRUE DISCLOSURE OF MAT ERIAL FACTS BY AN ASSESSEE AS CONTEMPLATED IN PRE-AMENDED SECTION 147(A) AND THE ASSESSING OFFICER CAN UNDER THE AMENDED PROVISIONS LEGITIMATELY RE-OPEN THE ASSESS MENT IN RESPECT OF INCOME WHICH HAD ESCAPED ASSESSMENT. VIEWED IN THAT ANGLE POWER TO RE-ASSESSMENT IS MUC H 13 WIDER UNDER THE AMENDED PROVISIONS AND CAN BE EXERC ISED EVEN AFTER ASSESSEE HAS DISCLOSED FULLY AND TRULY A LL MATERIAL FACTS. REASONS WHICH MAY WEIGH WITH THE ASSESSING OFFICER MAY BE THE RESULT OF HIS OWN INVESTIGATION AND MAY ALSO COME FROM ANY SOURCE THA T HE CONSIDERS RELIABLE. FORMING OF THIS BELIEF IS AN ADMINISTRATIVE DECISION TO BE ARRIVED AT IN JUDICIA L MANNER. THE ASSESSING OFFICER IS REQUIRED TO ACT FAIRLY AND JUDICIOUSLY. HIS BELIEF MUST HAVE SUBSTANCE AND MU ST NOT BE A SHADOW. THERE IS NO DISPUTE TO THE WELL SETTL ED LEGAL PROPOSITION THAT SUCH BELIEF SHOULD BE BONA FIDE AN D SHOULD NOT BE BASED ON VAGUE ARBITRARY AND NON-SPECIFIC INFORMATION. 16. IN THE CASE OF RAJESH JHAVERI (SUPRA) HON'BLE SUP REME COURT CATEGORICALLY DEALT WITH REOPENING OF ASSESSM ENT WITH REGARD TO MODE UNDER WHICH ASSESSMENT HAS BEEN DONE EITHER BY WAY OF THE INTIMATION U/S 143(1) O R BY WAY OF SCRUTINY ASSESSMENT ORDER U/S 143(3). IT WAS OBS ERVED THAT THERE IS A CONTEXTUAL DIFFERENCE BETWEEN THE T WO EXPRESSIONS IN THE CONTEXT THE EXPRESSIONS ARE USED . THE WORD ASSESSMENT IS USED AS MEANING SOMETHING THE COMPUTATION OF INCOME SOMETIMES DETERMINATION OF AMOUNT OF TAX PAYABLE AND SOMETIMES THE WHOLE PROCEDURE LAID DOWN IN THE ACT FOR IMPOSING LIABILI TY UPON THE TAX PAYERS. IT WAS FURTHER OBSERVED THAT IN THE SCHEME OF THINGS THE INTIMATION U/S 143(1)(A) CANNOT BE T REATED TO BE AN ORDER OF ASSESSMENT. THIS DISTINCTION IS ALSO WELL BROUGHT OUT BY THE STATUTORY PROVISIONS AS THEY STO OD AT DIFFERENT POINTS OF TIME PRIOR TO 1 ST APRIL 1989 U/S 143(1)(A) THE AO HAD TO PASS AN ASSESSMENT ORDER I F HE DECIDED TO ACCEPT THE RETURN BUT UNDER THE AMENDED PROVISIONS THE REQUIREMENT OF PASSING OF AN ASSESS MENT ORDER HAS TO BE DISPENSED WITH AND INSTEAD OF IT AN INTIMATION IS REQUIRED TO BE SENT. IT WAS FURTHER E LABORATED THAT UNDER THE FIRST PROVISO TO THE NEWLY SUBSTITUT ED SECTION 143(1) W.E.F. 1 ST JUNE 1999 EXCEPT AS PROVIDED IN THE PROVISION ITSELF ACKNOWLEDGEMENT OF THE RETURN SHA LL BE DEEMED TO BE INTIMATION U/S 143(1) WHERE NO SUM IS PAYABLE BY THE ASSESSEE OR WHERE NO REFUND IS DUE T O HIM. IT WAS CATEGORICALLY OBSERVED THAT ACKNOWLEDGEMENT IS NOT DONE BY THE ASSESSING OFFICER BUT BY THE MINISTERI AL STAFF. UNDER THESE CIRCUMSTANCES IT CANNOT BE SAID THAT T HE ASSESSMENT HAS BEEN MADE BY THE MINISTERIAL STAFF. THE 14 INTIMATION U/S 143(1)(A) IS DEEMED TO BE A NOTICE O F DEMAND U/S 156. FOR THE APPARENT PURPOSE OF MAKING MACHINERY PROVISION RELATING TO RECOVERY OF TAX APP LICABLE. BY SUCH APPLICATION ONLY RECOVERY INDICATED TO BE P AYABLE IN THE INTIMATION BECOMES PERMISSIBLE AND NOTHING M ORE CAN BE INFERRED FROM THE DEEMING PROVISION. THUS T HERE IS NO ASSESSMENT U/S 143(1)(A) OF THE ACT. 17. IT IS CRYSTAL CLEAR FROM THE ABOVE DECISION OF THE HON'BLE SUPREME COURT WHICH IS HAVING BINDING EFFEC T ON US UNDER CONSTITUTION OF INDIA THAT THE PROCESSING OF RETURN U/S 143(1) DOES NOT AMOUNT TO ASSESSMENT ORDER. THEREFORE NEITHER ANY OPINION IS FORMED NOR THERE IS A QUESTION OF CHANGE OF OPINION. SINCE INTIMATION U/S 143(1) IS NOT AN ASSESSMENT THERE IS NO QUESTION OF ANY N EW MATERIAL TO EMPOWER THE AO TO REOPEN THE ASSESSMENT U/S 147 WHEN THERE IS A REASON TO BELIEVE THAT THERE I S ESCAPEMENT OF INCOME. IN THE INSTANT CASE BEFORE US THE RETURN WAS PROCESSED U/S 143(1) AND NO ASSESSMENT W AS FRAMED BY ISSUE OF NOTICE U/S 143(2). UNDER THESE F ACTS AND CIRCUMSTANCES THE PROPOSITION OF LAW LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI IS CLEARLY APPLICABLE. IT IS PERTINENT TO MENTION HERE THAT SECTION 147 AUTHORIZES THE AO TO ASSESS OR REASSESS INCOME CHARGEABLE TO TAX WHEN HE HAS REASON TO BE LIEVE THAT INCOME FOR ANY ASSESSMENT YEAR HAS ESCAPED ASSESSMENT. IN THE INSTANT CASE THE OBSERVATION OF THE AO TO THE EFFECT THAT BY CLAIMING THE RETURNED INCOME UNDER WRONG HEAD THE ASSESSEE HAS CLAIMED EXCESS DEPRECI ATION WHICH IS NOT PERMISSIBLE IN CASE OF INCOME IS ASSES SABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THIS I S A SUFFICIENT REASON TO BELIEVE THAT INCOME OF THE ASS ESSEE HAS ESCAPED ASSESSMENT WHICH IS SUFFICIENT TO EMPOWER THE AO TO REOPEN THE ASSESSMENT BY ISSUE OF NOTICE U/S 148 . HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI HAS FURTHER OBSERVED THAT UNDER THE EARLIER PROVISIONS OF SECTION 147(A) TWO CONDITIONS WERE REQUIRED TO BE SATISFIED FIRSTLY THE AO MUST HAVE REASON TO BELI EVE THAT INCOME PROFITS OR GAINS CHARGEABLE TO TAX HAVE ESC APED ASSESSMENT AND SECONDLY HE MUST ALSO HAVE A REAS ON TO BELIEVE THAT SUCH ESCAPEMENT HAS OCCURRED BY REASON OF EITHER OMISSION OR FAILURE ON THE PART OF THE ASSES SEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RY FOR ASSESSMENT. BOTH THESE CONDITIONS WERE REQUIRED TO BE 15 SATISFIED BEFORE THE AO COULD HAVE JUSTIFICATION TO ISSUE NOTICE U/S 148 READ WITH SECTION 147(A) BUT UNDER THE SUBSTITUTED SECTION 147 EXISTENCE OF ONLY FIRST CO NDITION SUFFICES MEANING THEREBY IF THE AO HAS REASON TO B ELIEVE THAT INCOME HAS ESCAPED ASSESSMENT IT CONFERS THE VALID JURISDICTION TO REOPEN THE ASSESSMENT. IT IS PERTIN ENT TO MENTION HERE THAT BOTH THE CONDITIONS MUST BE FULFI LLED IF THE CASE IS WITHIN THE AMBIT OF PROVISO TO SECTION 147. THUS IF MORE THAN FOUR YEARS HAVE BEEN PASSED AFTE R COMPLETION OF ASSESSMENT U/S 143(3) NO REOPENING C AN BE MADE UNLESS THERE IS A FAILURE ON THE PART OF THE A SSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS IN THE RETURN OF INCOME. IT WAS CONCLUDED BY THE HON'BLE SUPREME COU RT THAT SO LONG AS INGREDIENTS OF SECTION 147 ARE FULF ILLED THE AO IS FREE TO INITIATE PROCEEDINGS U/S 147 AND FAIL URE TO TAKE STEPS U/S 143(3) WILL NOT RENDER THE AO POWERL ESS TO INITIATE REASSESSMENT PROCEEDINGS EVEN WHEN INTIMAT ION U/S 143(1) HAD BEEN ISSUED. 18. IN VIEW OF THE ABOVE DISCUSSION WE DO NOT FIND AN Y INFIRMITY IN THE ORDER OF THE CIT(A) FOR CONFIRMING THE ACTION OF THE AO FOR REOPENING THE ASSESSMENT WHEN THE SAME WAS MADE WITH REFERENCE TO INTIMATION PASSED U /S 143(1). IN THE AFORESAID ORDER AN ELABORATE DISCUSSION HAS BEEN MADE BY THE TRIBUNAL ON THE ISSUE. WE THEREFORE FOLLOWING TH E REASONING CONTAINED IN THE AFORESAID ORDER HOLD THAT THE REOPENING OF ASSESSMENT U/S 147 WAS VALID. ACCORDINGLY THE STAND OF THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS) IS AFFIRMED. THIS GROUND OF TH E ASSESSEE IS THEREFORE DISMISSED. 7. THE NEXT GROUND RAISED PERTAINS TO CARRY FORWARD OF BUSINESS LOSS AND SET OFF AGAINST THE DIVIDEND INCOME. THE LD. C OUNSEL FOR THE ASSESSEE DID NOT PRESS THIS GROUND THEREFORE IT I S DISMISSED AS NOT PRESSED. 16 8. THE NEXT GROUND PERTAINS TO CHARGING OF INTEREST U/S 234B 234C AND 234D OF THE ACT. THE LD. COUNSEL FOR THE ASSES SEE FAIRLY AGREED THAT SO FAR AS CHARGING OF INTEREST U/S 234B AND 234C IS CONCERNED IT IS CONSEQUENTIAL IN NATURE THEREFORE IT IS DECIDED A GAINST THE ASSESSEE. SO FAR AS INTEREST U/S 234D IS CONCERNED THIS ISSU E HAS BEEN DELIBERATED UPON BY THE TRIBUNAL IN THE AFORESAID DATED 29.10. 2010 VIDE PARA 26 AND 27 (PAGE 19). THE SAME IS REPRODUCED HEREUNDER :- 26. THE ASSESSEE HAS ALSO TAKEN GROUND WITH REGARD TO CHARGING OF INTEREST U/S 234D ON EXCESS REFUND DETE RMINED BY REASSESSMENT ORDER U/S 147 OF THE ACT. FOR THIS PURPOSE THE LD.AUTHORIZED REPRESENTATIVE PLACED RELIANCE ON THE DECISION OF THE I.T.A.T. SPECIAL BENCH IN THE CASE OF EKTA PROMOTERS 305 ITR 1 WHICH WAS SUBSEQUENTLY AFFIR MED BY HON'BLE DELHI HIGH COURT WHILE DECIDING THE APPE AL IN THE CASE OF M/S. MITSUBISHI CORPORATION ORDER DATE D AUGUST 30 2010 WHEREIN IT WAS HELD THAT INTEREST U /S 234- D IS NOT CHARGEABLE FOR THE PERIOD PRIOR TO ASSESS MENT YEAR 2004-05. BOTH THE ORDERS WERE ALSO PLACED ON R ECORD. 27. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTI ONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE AO HAS CHARGED INTEREST U/S 234D WHICH HAS BEEN CHALLENGED BY THE ASSESSEE BEFORE THE LD. CIT(A) WH O HAS CONFIRMED THE SAME. THE ISSUE WITH REGARD TO CHARGI NG OF INTEREST U/S 234D FOR THE PERIOD FALLING PRIOR TO ASSESSMENT YEAR 2004-05 IS NO MORE RES INTEGRA IN VIEW OF THE DECISION OF THE I.T.A.T. SPECIAL BENCH IN THE CASE OF EKTA PROMOTERS (SUPRA) WHICH WAS SUBSEQUENTLY AFFIRMED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF MITSUBI SHI CORPORATION VIDE ORDER DATED AUGUST 30 2010. NO CONTRARY DECISION WAS BROUGHT TO OUR NOTICE BY THE DEPARTMENT. ACCORDINGLY RESPECTIVELY FOLLOWING THE DECISION OF I.T.A.T. SPECIAL BENCH WE HOLD THAT NO INTEREST IS CHARGEABLE U/S 234D PRIOR TO THE ASSESSMENT YEAR 2004- 05. AS ALL THE ASSESSMENT YEARS UNDER CONSIDERATION ARE PRIOR TO ASSESSMENT YEAR 2004-05 NO INTEREST IS 17 CHARGEABLE U/S 234D. ACCORDINGLY THIS GROUND OF AP PEAL IS ALLOWED IN ALL THE YEARS UNDER CONSIDERATION. SINCE THE TRIBUNAL HAS ALREADY CONSIDERED THE DECIS ION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF EKTA PROMOTERS (305 ITR 1) AND ALSO HONBLE DELHI HIGH COURT IN THE CASE OF MITSUB ISHI CORPORATION ORDER DATED 30.8.2010 THEREFORE THE LEVY OF INTER EST U/S 234D IS DECIDED IN FAVOUR OF THE ASSESSEE AS THE SAME IS NOT CHARGE ABLE. ACCORDINGLY THIS PART OF THE GROUND IS ALLOWED. 9. THE LAST GROUND PERTAINS TO INTEREST U/S 244A OF THE ACT. THE SAME IS CONSEQUENTIAL IN NATURE. FINALLY THE APPEAL OF THE REVENUE IS DISMISSED AN D THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF L EARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 12 TH JANUARY 2011. (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 12 TH JANUARY 2011 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE DN/- 18