IN INCOME TAX APPELLATE TRIBUNAL BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM ITA Nos.2489 & 2490/PUN/2016 Assessment Years : 2003-04 & 2004-05 ITO, Ward-4, Dhule. Appellant V/s. M/s Shriram Petroleum Industries, C/o. Amit R. Raghuwanshi, Pardeshi Pura, Radha Sadan, Nandurbar-425412 PAN : AAOFS1009H Respondent C.O. Nos.05 & 06/PUN/2019 (Arising out of ITA Nos.2489 & 2490/PUN/2016) Assessment Years : 2003-04 & 2004-05 M/s Shriram Petroleum Industries, C/o. Amit R. Raghuwanshi, Pardeshi Pura, Radha Sadan, Nandurbar-425412 PAN : AAOFS1009H Appellant V/s. ITO, Ward-4, Dhule. Respondent Revenue by : Shri N. Ashok Babu Assessee by : Shri Sanket Joshi Date of Hearing : 21.08.2019 Date of Pronouncement : 05.09.2019 ORDER PER D. KARUNAKARA RAO, AM: There are four appeals under consideration involving assessment years 2003-04 and 2004-05. appeals (2 appeals) in ITA Nos.2489 & 2490/PUN/2016 are filed by Revenue against two 2 ITA Nos.2489 & 2490/PUN/2016 C.O. Nos.05 & 06/PUN/2019 separate orders of CIT(A)-1, Nashik commonly dated 23.08.2016 for Assessment Years 2003-04 and 2004-05 respectively. Cross Objections (2 cross objections) in C.O. Nos.05 & 06/PUN/2019 filed by assessee. Preliminary Issue - Condonation of Delay 2. Before us, at outset, ld. Counsel for assessee submitted that cross objections could not be filed in time and said cross objections are now filed with delay of 40 days. In this regard, ld. Counsel for assessee filed affidavit stating reasons for non- filing cross objections of assessee in time. For sake of completeness, relevant paras of said affidavit are extracted hereunder :- I wish to state that I am practicing Chartered Accountant based in Nashik and I am looking after income tax appellate matters of partnership firm, M/s. Shriram Petroleum Industries, partners of which are based in Nandurbar. I hereby state that Appeal Memo filed by Income Tax Department in Form No.36 before Hon ble ITAT Pune bearing ITA Nos.2489 & 2490/PN/2016 was received at address of M/s. Shriram Petroleum Industries at Nandurbar on 29.11.2008. I wish to state that appeal memo was sent by partner of above firm, Mr. Amit Raghuvanshi to my office at Nashik around third week of December 2018. I further state that I was scheduled to get married on 28th December 2018 and hence, I was on leave from Office during relevant period when Mr. Raghuvanshi sent appeal memo to my office for filing cross objections. I wish to state that after my marriage, I travelled out of India and returned back to India only on 15.01.2019. I hereby state that immediately on returned to India, I travelled to Pune for attending hearings before Hon ble ITAT Pune from 16.01.2019 to 29.01.2019. I further wish to state that on returning back to Nashik Office on 30.01.2019,1 noticed that cross objections against Form No.36 filed by Dept. in case of M/s. Shriram Petroleum Industries had 3 ITA Nos.2489 & 2490/PUN/2016 C.O. Nos.05 & 06/PUN/2019 remained to be filed before Hon ble ITAT Pune. I hereby state that thereafter, Cross Objections in Form No.36A were drafted by me on priority basis and same were sent to partner of M/s. Shriram Petroleum Industries at Nandurbar for obtaining signatures. I wish to state that after obtaining relevant signatures, Memorandum of Cross Objections in Form No.36A was manually filed by myself at Pune on 07/02/2019. I hereby state that in view of above facts, there was delay of 40 days in filing Memo of Cross Objections before Hon ble ITAT Pune. I hereby state that fact that Income Tax Department had preferred appeal before Hon ble ITAT came to my notice on 28.11.2018 after finding out that matter was listed in Cause List before Tribunal. I wish to state that at that time itself, I had advised partner of above firm that we should file cross objections in Form No.36A before Hon ble Tribunal against appeals filed by Income Tax Dept. I further state that in first hearing on 29.11,2018, I had filed adjournment application before Hon ble ITAT wherein it was expressly mentioned that assessee firm wishes to file cross objections against Departmental Appeals and since Form No.36 filed by Dept. was not received by assessee till that date, assessee firm had requested for adjournment. 3. From above narration of facts by Chartered Accountant, we find there is no mala-fide in conduct of assessee in filing Cross Objections late. Considering above reasons given by assessee in affidavit, we find it is fit case for condoning delay of 40 days. After condoning delay, we proceed to adjudicate cross objections of assessee first, in following paragraphs. C.O. Nos.05 & 06/PUN/2019 By Assessee 4. In cross objections, assessee raised legal objection/ground relating to un-sustainability of additions when Assessing Officer failed to make any addition on account of reasons recorded by Assessing Officer while reopening completed 4 ITA Nos.2489 & 2490/PUN/2016 C.O. Nos.05 & 06/PUN/2019 assessment and while assuming jurisdiction u/s 147/148 of Act. In this regard, ld. Counsel brought our attention to reasons and mentioned that issue for which assessments reopened relates to suppression of sales of Rs.2,01,39,410/-. 5. We proceed to extracted relevant reasons mentioned by Assessing Officer in assessment order and same are hereunder :- 1. finding of sale tax department revealed that differential amount of sales-tax @ 16% has been evaded by assessee. 2. assessee has suppressed sales in return of income by Rs.2,01,39,410/-. 6. Further, bringing our attention to details of addition made by Assessing Officer vide contents of para 6 of assessment order, ld. Counsel for assessee submitted that addition made by Assessing Officer relates to GP percentage based addition. There is no reference to such addition in reasons recorded by Assessing Officer. 7. Before us, ld. Counsel for assessee submitted that such reassessment is void ab-initio considering facts and ratio laid down by Hon ble Bombay High Court in case of CIT vs. Jet Airways (I) Ltd., 331 ITR 236 (Bom), copy of which is placed on record. 8. On other hand, ld. DR for Revenue relied heavily on orders of revenue authorities. 5 ITA Nos.2489 & 2490/PUN/2016 C.O. Nos.05 & 06/PUN/2019 9. We heard both sides on this legal issue and perused orders of revenue authorities and also judgement of Hon ble Bombay High Court in case of Jet Airways (I) Ltd. (supra). We proceed to extract ratio of judgement of Hon ble Bombay High Court (supra) as follows :- Reassessment Scope Income in respect of which notice issued not found to be escaped income Once AO accepts that income in respect of which he entertained reason to believe to have escaped assessment, was not in fact escaped income; he has no jurisdiction to reassess other items of income In such situation, Expln. 3 to s. 147 does not come to reserve of AO. 10. Considering above settled nature of issue and undisputed fact that Assessing Officer did not make any addition on account of reasons recorded by him while reopening assessment, we are of opinion that reassessments made by Assessing Officer are to be quashed as null and void. 11. In result, both Cross Objections of assessee for both assessment years are allowed on technical grounds. ITA Nos.2489 & 2490/PUN/2016 By Revenue 12. Considering relief granted to assessee in cross objections and reassessments made by Assessing Officer are quashed, we are of opinion that, adjudication of appeals of Revenue becomes academic exercise only. Therefore, both appeals of Revenue are dismissed as academic. 6 ITA Nos.2489 & 2490/PUN/2016 C.O. Nos.05 & 06/PUN/2019 13. In result, both appeals of Revenue are dismissed. 14. Resultantly, both Cross Objections of assessee are allowed and both appeals of Revenue are dismissed. Order pronounced on 05th day of September, 2019. Sd/- Sd/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER Pune; Dated : 05th September, 2019. Sujeet Copy of Order forwarded to : 1. Appellant. 2. Respondent. 3. CIT(A)-I, Nashik. 4. CCIT, Nashik. 5. DR, ITAT, Bench, Pune. 6. Guard File. BY ORDER, True Copy Senior Private Secretary , ITAT, Pune. ITO, Ward-4, Dhule v. Shriram Petroleum Industrie