Jayanta Khanra, JCIT for the Petitioner. S.K. Tulsiyan, Adv. & Puja Somani, AR for the Respondent.

This appeal preferred by the revenue is against the order of Ld. CIT(A)-5, Kolkata dated 21.01.2019 for Assessment Year 2008-09.

2. The grounds of appeal raised by the revenue are as under:

“1. The Ld. CIT(A) has erred in law in deleting the reopening assessment u/s. 147 of the I. T. Act made by the AO. The original Assessment was completed u/s. 143(3) and more than 4 years had elapsed for passing the order. As per first proviso to section 148 of the I. T. Act, the reopening u/s. 147 could be made if the escapement of income was on account of failure of the assessee to disclose fully and truly all material facts necessary for the assessment for that assessment year.

2. The Ld. CIT(A) has erred in law in deleting the reopening assessment u/s. 147 of the I. T. Act without issuing a notice u/s. 143(2) as the assessee has not filed a Return in response to his notice u/s. 148 of the Act. The revenue has sought to rely on Madras High Court judgment reported at 294 ITR 233 (Areva T & D India Ltd. vs. ACIT where the view taken was that non- issuance of a notice under section 143(2) of the Act, will not make the reassessment null & void in law, which is validly initiated u/s. 148 of the Act.

3. The Ld. CIT(A) has erred in law in deleting the reopening assessment u/s. 147 of the I. T. Act as notice u/s. 148 was issued after taking necessary approval from ld. Pr. CIT-1, Kolkata. Since the assessee did not file return in response to notice u/s. 148, notice u/s. 143(2) was not issued although notices u/s. 142(1) were duly issued along with questionnaire.

4. The Ld. CIT(A) has erred in law in deleting the addition of Rs.48,16,666/- as the disallowance of excess expenditure claim by the assessee.

5. The appellant craves the leave to make addition, alteration, or modification etc. of the grounds either before the appellate proceedings, or in the course of appellate proceedings.”

3. From a perusal of the grounds of appeal nos. 1, 2 and 3 it is noted that they are legal issues raised by the revenue which were decided in favour of the assessee by the Ld. CIT(A). First of all, we will decide ground nos. 2 and 3. The revenue by preferring these grounds of appeal have challenged the action of the Ld. CIT(A) in finding fault with the AO in not issuing the notice u/s. 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”), and consequently holding the action of AO to frame re-assessment itself bad in law. According to the revenue, when the assessment for AY 2008-09 was reopened u/s. 147 of the Act by issuing notice u/s. 148 of the Act calling from the assessee the return to be filed, the assessee did not file the return of income and, therefore, the AO had proceeded to frame the assessment u/s. 143(3) of the Act, without issuing notice u/s 143(2) of the Act, which action of AO, according to revenue, is valid.

4. Brief facts relevant to this legal issue as it can be discerned from a perusal of the assessment order is that the assessee had file electronically its return of income for AY 2008-09 on 25.09.2009 reflecting total income of Rs.217,07,87,536/-. According to the AO, during the course of hearing, assessee submitted a revised return of income on 18.05.2010 declaring total income of Rs.211,03,84,852/- which was accepted by the AO. Later, scrutiny was made and the original assessment was framed u/s. 143(3) of the Act on 20.07.2010 at an income of Rs.214,17,73,182/-. Thereafter, notice u/s. 148 of the Act was issued on 19.03.2015 after taking approval of Ld. Pr. CIT, Kolkata-1 and the notice was served upon the assessee on 20.03.2015. Pursuant to which the assessee submitted a letter on 26.03.2015 requesting the AO to treat the original return as return u/s. 148 of the Act.

The AO noticed that since the assessee did not file return in response to notice u/s. 148 of the Act, notice u/s. 143(2) of the Act was not issued. And thereafter, he observed that he had issued notice u/s. 142(1) of the Act with the questionnaire etc. which was served upon the Chief Manager, Taxation etc. And the reassessment was framed u/s. 147/143(3) of the Act on 28.03.2016 making an addition of Rs.48,16,666/-. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) wherein the assessee challenged the reassessment order on the ground that the AO could not have validly framed the re-assessment u/s. 147/143(3) of the Act without issuing notice u/s. 143(2) of the Act and raised inter-alia other legal issues before the First Appellate Authority. The Ld. CIT(A) decided the legal issues in favour of the assessee by finding legal infirmity with the action of the AO on the following three counts, viz;-.

i) That the AO has not disposed of the objection raised by the assessee against the reasons given for reopening the case by passing a speaking order for that refer to the decision of the Hon’ble Supreme Court in the case of GKN Driveshafts (India) Ltd. (2003) 259 ITR 19.

ii) No notice was issued u/s. 143(2) of the Act before completing the assessment u/s. 143(3) of the Act.

iii) Since original assessment was completed u/s. 143(3) of the Act and admittedly more than four years had elapsed, the assessment could have been opened only if the additional condition precedent as laid down in the first proviso to section 147 of the Act namely, that the assessee had failed to disclose fully and truly all material facts necessary for assessment of that assessment year.

5. From a perusal of the aforesaid action of Ld. CIT(A), we note that though the Ld. CIT(A) has found fault with the reassessment order dated 28.03.2016 on three counts/legal issues, still the revenue has challenged before us only on two grounds and not on all the three legal issues/grounds. Therefore, by not challenging the impugned order of Ld. CIT(A) on the first legal infirmity found by the Ld CIT(A), the impugned order of Ld. CIT(A) will survive even if Revenue succeeds in reversing the decision of the Ld. CIT(A) on other two grounds. So the whole exercise of adjudicating the action of Ld CIT(A) is academic in nature.

6. However, for completeness, we would like to adjudicate the ground nos. 2 and 3 which we have taken up first. In this regard, it is settled law that in order to frame the scrutiny assessment u/s. 143(3) of the Act, the issuance of notice u/s. 143(2) of the Act is mandatory as held by the Hon’ble Supreme Court in ACIT Vs. Hotel Blue Moon 321 ITR 328 which decision was reiterated by the Hon’ble jurisdictional High Court of Calcutta in the case of M/s. Oberoi Hotels Pvt. Ltd. 409 ITR 132, wherein the Hon’ble High Court observed in this respect as under:

“This is not a case where the Assessing Officer says that a notice had been issued and there is a contradiction thereof by the assessee. It is evident that the assessee carried the objection before the Commissioner (Appeals) and the Commissioner brushed aside the objection on the ground that it was a technicality without addressing the issue or applying his mind to such aspect of the matter. Further, it is evident from the order impugned passed by the Appellate Tribunal that no notice under section 143(2) had, in fact, been issued in this case. In such a situation, where a notice that is mandatorily required to be issued is found not to have been issued, section 292BB has no manner of operation. The two substantial questions of law are answered accordingly. If the time for issuance of the notice under section 143 (2) has expired or the time for completing the re-assessment proceedings under section 153(2) has run out, the failure to issue such notice under section 143(2) would result in the entire proceedings, including any order of assessment, to be quashed. Section 292BB does not dispense with the issuance of any notice that is mandated to be issued under the Act, but merely cures the defect of service of such notice if an objection in such regard is not taken before the completion of the assessment or re assessment.”

7. In a similar case as that of the assessee before us, the Hon’ble Kerala High Court in the case of Travancore Diagnostics (P) Ltd. Vs. ACIT (2016) 74 taxmann.com 239 (Kerala HC) took note of the fact [like in the present assessee’s case], that assessee (Travancore Diagnostics (P) Ltd.) informed the AO that the return originally filed could be treated as the return filed pursuant to the notice u/s. 148 of the Act and thereafter, no notice u/s. 143(2) of the Act was issued by the AO to the assessee [similar to what happened in this present assessee’s case) wherein the Hon’ble High Court held that before framing the reassessment order u/s. 147/143(3) of the Act, the issuance of notice u/s. 143(2) of the Act is mandatory and an omission to do so is a defect which is not curable and an action of AO not to issue such a notice goes to the root of the jurisdiction of an AO to frame valid assessment order.

The relevant observation of the Hon’ble High Court reads as under:

“The issue that requires consideration is the contention of the assessee that before making an assessment under section 143(3) read with section 147, they ought to have been given a statutory notice under section 143(2) of the Act. [Para 28]

It is indubitable from section 143(2) that the Assessing Officer shall serve on the assessee a notice specifying the particulars of such claim of loss, exemption, deduction, allowance or relief made in the return, if he has reason to believe that all such are inadmissible. The notice is also to direct the assessee to produce or cause to be produced any evidence or particulars specified therein or on which the assessee may rely. A notice under section 143(2) is the hypostasis on which any proceedings under section 143(3) or a re-assessment under section 147 (if the time for regular assessment is not over) will have to be rested on.

In the absence of a notice under section 143(2), it is obvious that no further proceedings can be continued for assessment under section 143 and without such a notice the Assessing Officer could not assume jurisdiction and that this defect cannot be cured subsequently, since it is not a procedural defect, but it is the defect that goes to the root of the jurisdiction. [Para 30]

It is virtually admitted by the revenue that no notice under section 143(2) had been issued. It is settled position of law that omission on the part of the Assessing Officer under section 143 (2) cannot be a procedural irregularity and that the same is not curable and that therefore, the requirement of notice under section 143(2) cannot be dispensed with. This emphatic statement of law, in the absence of issuance of a notice under section 143(2) by the revenue, would, therefore, inure to the benefit of the assessee, even though as noticed above, the contention of assessee that it was not aware of the proceedings under section 143 for the assessment year 2009-10 cannot be accepted. However, when the statute makes it imperative that notice under section 143(2) is to be issued, the omission or failure would then hit at the root of the jurisdiction. [Para 32]

The extended question then is whether even if the assessee is deemed to have participated in the proceedings under section 143, even without the Assessing Officer having issued the mandatory notice, would the revenue be entitled to the benefit provided under section 292BB of the Act. Section 292BB creates an estoppel against the assessee in claiming that no notice has been served on him, if he has participated in the proceedings. However, the said section does not in any manner grant any privilege to the Assessing Officer in dispensing with the issuance of a notice under section 143 (2) of the Act. Since the jurisdiction under section 143 is founded on the issuance of a notice under section 143(2), the Assessing Officer could have assumed jurisdiction only after issuing a notice under section 143(2). Even the participation of the assessee would not provide the benefit under section 292BB to the revenue. The requirement that a notice be issued is mandatory and the Assessing Officer has no other option but to issue the notice before commencing the jurisdiction. [Para 33]

The only benefit that section 292BB obtains to the Assessing Officer is that after the issuance of such notice the assessee appears and participates in the proceedings, then he shall not he heard, subject to the proviso to the said section, that he had not been properly served with notice. There is no hesitation in holding that the Assessing Officer can claim and avail the benefit under section 292BB and the assessee will be burdened by the rigour of estoppel contained therein only after a notice under section 143(2) had been validly issued. When it is virtually admitted that no such notice had been issued, the Assessing Officer loses even the authority to enter into the jurisdiction under section 143 and the participation or otherwise of the assessee would be of no avail. [Para 34]

It is rather distressing that on account of this omission and non-compliance of mandatory and imperative provisions, the assessee would now be entitled to reliefs which they otherwise would not have been able to obtain. Therefore, in the absence of a section 143(2) notice, proceedings of assessment initiated, conducted and completed for the year 2009-10 would have to fail." (Emphasis given by us)

8. In the light of the ratio decidendi of the case laws (supra), the contention of the Revenue that since the assessee did not file return of income pursuant to notice u/s. 148 of the Act, the AO was justified in not issuing notice under sub-section (2) of section 143 of the Act cannot be countenanced, since assessee pursuant to the section 148 notice has replied to the AO to treat the original return filed by it, as return pursuant to notice under section 148 of the Act, which fact has been admitted/acknowledged by the AO in the first paragraph of the impugned re-assessment order dated 28.03.2016.Therefore, the AO was not justified in not issuing notice u/s 143(2) 0f the Act before framing reassessment order u/s 147/143(3) of the Act, therefore we find no merit in the contention of the revenue.

9. The revenue has cited the decision of Hon’ble Madras High Court in Areva T & D India Ltd. Vs. ACIT (2007) 165 Taxman 123 (Mad) to support their ground on this legal issue. However, in the light of the Hon’ble Supreme Court’s decision in the case of Hotel Blue Moon (supra) as well as Hon’ble jurisdictional High Court decision in the case of Oberoi Hotels Pvt. Ltd. (supra), we are bound by the decisions of the Hon’ble Supreme Court and jurisdictional High Court, therefore, we are not further going into the merit of this contention of the revenue. Therefore, respectfully following the ratio of the case laws cited supra, we find no merit in the contention of the revenue and, therefore, we confirm the action of Ld CIT(A) on this legal issue and consequently, the ground nos. 2 and 3 of revenue stand dismissed.

10. Coming to the ground no. 1 raised by the revenue that the Ld. CIT(A) erred in deciding that since the original assessment was completed u/s. 143(3) of the Act and more than four years have elapsed after passing the order, the additional condition precedent as prescribed in first proviso to section 147 of the Act i.e. failure of the assessee to disclose fully and truly all material facts necessary for the assessment for the assessment year should have been spelled out by the AO in the reasons recorded and failure to do so, the AO would not get jurisdiction to reopen the assessment. For adjudication of this legal issue, we need to reproduce the reasons recorded by AO for reopening which is discernible from page 14 of paper book is as under:

“Sub: Reason for reopen u/s 147 of the I.T. Act in the case of M/s Peerless General Finance & Investment Co. (P) Ltd. A.Y.2008-09.

As per your requirement I am furnishing the reason for reopen u/s 147 of the I.T.Act of the above mentioned case as per below.

"In Profit and Loss account for the F. Y.2007-08 relating to A. Y.2008-09 the assessee has shown an amount of Rs.2255. 9 lacs under the head Miscellaneous income. The said Miscellaneous income comprises among other things services charges received from Max New York life Insurance corporation Ltd. (MNYL). The assessee received gross service charges of Rs.205577150/- from MNYL etc. and reimbursed service tax of Rs. 12548378 to MNYL. But while confirming against notice u/s. 133(6). MNYL stated that it has received only Rs. 7731712/- as service tax from the assessee for the F. Y. 2007-08. Thus Rs. 4816666 [Rs. 12548378 - Rs. 7731712] was required to he added back to the income of the assessee ."

11. It is noted from a perusal of the aforesaid reasons recorded by AO that the issue on which he intends to reopen the assessment of AY 2008-09 was in respect of miscellaneous income the assessee had received from M/s. Max New York Life Insurance Corporation Ltd. (hereinafter referred to M/s. MNYL). In this regard, it was also brought to our notice by the Ld. AR Shri S. K. Tulsiyan, Advocate that the aforesaid discrepancy in the matter of receipt of service charges from M/s. MNYL had already been questioned by the predecessor AO (due to Audit query raised dated 26.05.2011) and the same had been duly explained/reconciled by the assessee vide its letter dated 09.06.2011 which was filed before the then AO. The Ld AR drew our attention to the copy of the audit objection which is found placed at page 17 of paper book which is noted to be verbatim the same as that of the reasons recorded by the AO to re-open. In the reply letter dated 09.06.2011, the assessee had explained that the said discrepancy had occurred solely on account of different accounting method followed by the assessee and M/s. MNYL. The accounts of the assessee were maintained on mercantile basis and the accounts of the M/s. MNYL were maintained on receipt basis. Further, it was brought to the notice of AO that some of the cheques issued by the assessee towards the end of FY 2007-08 (AY 2008-09 relevant year) were actually received/en-cashed and accounted for by M/s. MNYL in the immediately next FY i.e. FY 2008-09. Like, one cheque pertaining to FY 2006-07 issued by the assessee company was received/encashed by M/s. MNYL in FY 2007-08 and was therefore, accounted in FY 2007-08 (AY 2008-09), being the relevant assessment year. According to Ld AR, a reconciliation statement was also prepared to explain the said discrepancy. As such, according to Ld. AR, the alleged discrepancy of Rs.48,16,666/- was on account of different method of accounting followed by the assessee and M/s. MNYL and was duly explained/reconciled and according to him, the then AO accepted the reconciliation since no action was initiated against the assessee after receiving reply of 09.06.2011; and further it was pointed out to us by the Ld AR that thereafter 3 years and 9 months i.e. on 19.03.2015, only notice u/s. 148 of the Act was issued by the new incumbent AO on the very same issue, so according to Ld AR it can be seen that it was not a case where the assessee had failed to disclose truly and fully all material facts necessary for assessment on this issue for that year.

12. It is admitted in this case, the original assessment of the assessee for AY 2008-09 was framed u/s. 143(3) of the Act on 20.07.2010 and the AO by issuing notice u/s. 148 of the Act on 19.03.2015 was an event after four years from the end of the relevant assessment year, so the first proviso to section 147 of the Act will come into play and consequently no action can be taken by the AO under section 147, unless any income chargeable to tax has escaped assessment for such assessment year by reasons of failure on the part of theassessee to disclose all material facts necessary for its assessment for that assessment year.

The Ld. CIT(A) has found that AO failed to satisfy this condition precedent while recording the reasons in the assessee’s case before re-opening the scrutiny assessment and allowed the legal issue in assessee’s favour. Now revenue is before us challenging this action of Ld. CIT(A). We note that this legal issue raised before us is no longer res integra, when admittedly the fact is that the original assessment has been completed u/s. 143(3) of the Act and four years have elapsed from the end of the relevant assessment year, therefore, as discussed (supra) the first proviso to section 147 of the Act will come into play and the condition precedent stated therein has to be fulfilled by AO for validly assume jurisdiction to reopen the completed assessment. The Ld. AR submitted that where an assessee had filed a return of income and thereafter the assessment was completed either under Section 143(3) or under Section 147 of the Act, then in such case no notice under Section 147 of the Act could have been issued beyond four years from expiry of relevant assessment year, unless the AO demonstrates in the recorded reasons that income had escaped assessment as a consequence of assessee’s failure to disclose truly and fully all facts necessary for his assessment. According to the Ld. AR, in the present case, all the relevant information and details concerning the issue i.e. primary facts were made available at the time of original assessment and therefore it was not a case that the assessee had failed to disclose truly and fully all material facts necessary for assessment for that year and in that view of the matter, the AO could not have validly reopened the assessment for AY 2009-10 after the expiry of four years. In support of his contention, the Ld. AR relied on the decision of the Hon’ble Supreme Court in the case of New Delhi Television Ltd [NDTV] Vs DCIT (116 taxmann.com 151). He further submitted that even the reasons as recorded by the AO did not contain any averment to the effect that income had escaped assessment as a consequence of assessee’s failure to disclose truly and fully all facts necessary for his assessment. According to the Ld. AR therefore, the AO’s action of re-opening the assessment completed u/s. 143(3) after four years, deserves to be struck down for not satisfying the condition precedent set out in the first proviso to Section 147 of the Act. The Ld. DR could not controvert the fact that the assessment was reopened after four years from the end of relevant assessment year and that the original assessment was framed u/s. 143(3) of the Act and, therefore, it was not his case that first proviso to section 147 was not applicable to this case.

13. Before we advert further, let us first look into the well settled principles regarding reopening of assessments completed u/s 143(3) of the Act, beyond four years. In this regard, it is first pertinent to examine the relevant provision of the Act i.e., Section 147 of the Act which reads as under:

“147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or re-compute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) :

Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year:[Emphasis given by us]”

14. We note that the Hon’ble Supreme Court in the case of M/s. Calcutta Discount Co Ltd (41 ITR 191) has held that, both the conditions, (i) the Income-tax Officer having reason to believe that there has been under-assessment and (ii) his having reason to believe that such under- assessment has resulted from nondisclosure of material facts, must co-exist before the Income-tax Officer has jurisdiction to start proceedings after the expiry of four years. We further note that the Hon’ble Supreme Court in the case of M/s. Ganga Saran &Sons Pvt. Ltd Vs. ITO reported in 131 ITR 1 (SC) held that, the expression “ reason to believe” occurring in Section 147 is stronger than the expression “is satisfied” and this legal requirement has to be met in the reasons recorded before re-opening. The Hon’ble Apex Court held that it has to be kept in mind that if an assessment (original assessment) has been made u/s. 143(3), the proviso to Sec. 147 further mandates that no action shall be taken under Section 147 after the expiry of 4 years from the end of the relevant assessment year unless there is failure on the part of the assessee to disclose fully and truly all facts necessary for his assessment for that assessment year.

15. It is well settled that the reasons as recorded for reopening the assessment, are to be examined on a standalone basis. Nothing can be added to the reasons recorded, nor anything be deleted from the reasons recorded. The Hon’ble Bombay High Court, in the case of Hindustan Lever Ltd. vs. R.B. Wadkar [(2004) 268 ITR 332], has, inter alia, observed that

"..It is needless to mention that the reasons are required to be read as they were recorded by the AO. No substitution or deletion is permissible. No inference can be allowed to be drawn on the basis of reasons not recorded. It is for the AO to disclose and open his mind through the reasons recorded by him. He has to speak through the reasons." Their Lordships further added that "The reasons recorded should be self-explanatory and should not keep the assessee guessing for reasons. Reasons provide link between conclusion and the evidence....".The Hon’ble Court further held that, “He must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment. The reasons recorded by the Assessing Officer cannot be supplemented by filing affidavit or making oral submission, otherwise, the reasons which were lacking in the material particulars would get supplemented, by the time the matter reaches to the Court, on the strength of affidavit or oral submissions advanced. ”Therefore, the reasons are to be examined only as they were recorded by the competent officer before the issue of the notice.

16. In the present case it is noted from a perusal of the reasons recorded by AO that the issue on which he intends to reopen the assessment of AY 2008-09 was verbatim the same as raised by the Audit as early as on 26 May 2011, which was in respect of miscellaneous income the assessee had received from M/s. Max New York Life Insurance Corporation Ltd. (hereinafter referred to M/s. MNYL). However, in the reasons recorded (supra), we note that there is no mention or allegation about the assessee’s failure to disclose truly and fully disclosure of all material facts necessary for the assessment on this issue. Moreover we note that this precise issue was raised by the AO in May 2011, pursuant to which assessee replied vide letter dated 09.06.2011, wherein the assessee had explained that the said discrepancy had occurred solely on account of different accounting method followed by the assessee and M/s. MNYL. The accounts of the assessee were maintained on mercantile basis and the accounts of the M/s. MNYL were maintained on receipt basis. Reconciliation statement was also prepared by the assessee and filed before the then AO to explain the said discrepancy, and thereafter no further proceedings were initiated against the assessee on this issue and only after 3 years and 9 months i.e. on 19.03.2015, only notice u/s. 148 of the Act was issued by the new incumbent AO on the very same issue, so it cannot be said in this factual back ground that all necessary facts were not before the AO on the very same issue before/when he recorded his reason to re-open [in the year 2015]the completed scrutiny assessment framed as early as on 20.07.2010.

17. In the light of the aforesaid facts and circumstances, we note that in this case original assessment was completed under Section 143(3) of the Act and such concluded assessment when sought to be reopened beyond four years, it is not only necessary for the AO to form reasonable belief that income had escaped assessment as envisaged in Section 147 of the Act but additionally he has to show that such escapement occurred as a result or consequence of assessee’s failure to disclose truly and fully all facts necessary for assessment. It is to be kept in mind that the AO after obtaining information and documents from the assessee cannot supplement/supplant his conclusion about assessee’s failure to disclose truly and fully material facts, if the recorded reasons do not refer to such failure. In the circumstances, where the AO initiates the reassessment proceedings beyond four years from the end of the relevant assessment year, then the AO is duty bound to demonstrate in his reasons recorded prior to issue of notice, the failure on the assessee’s part to truly and fully disclose all material facts in the course of original assessment, which in this case, the AO has not made even a whisper to that effect, therefore, the essential condition precedent as stipulated in first proviso to section 147 of the Act has not been satisfied, therefore, the AO could not have usurped the jurisdiction without satisfying the same, therefore, we find no infirmity in the order of Ld. CIT(A) on this issue also, so we confirm the impugned action of Ld CIT(A) on this legal issue and so revenue’s ground no. 1 fails. Consequently the action of AO to re-open the assessment is without jurisdiction and therefore, the action of AO is null in the eyes of law.

18. In the light of the above, ground number 1, 2 and 3 of the Revenue stands dismissed. Therefore ground number 4, is academic in nature and ground number is general in nature, so both grounds dismissed

19. In the result, the appeal of Revenue is dismissed.

Order is pronounced in the open court on 3rd December, 2020.