ITO 3(2)(4), MUMBAI vs. OMEGA INVESTMENT & PROPERTIES LTD., MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI ABY T. VARKEY, JM AND SHRI S RIFAUR RAHMAN, AM आयकरअपीलसं/ I.T.A. No.868/Mum/2016 (निर्धारणवर्ा / Assessment Year: 2007-08) Income Tax Officer 3(2) (4) बिधम/ M/s. Omega Investment & Room No. 673,6th Floor, Properties Ltd Vs. 32-B, Jolly Maker Chambers Aayakar Bhavan, M.K. Road, No.2 Nariman Point, Mumbai- Mumbai- 400020. 400021. स्थधयीलेखधसं./जीआइआरसं./PAN/GIR No. : AAACO0978L (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) Assessee by: Mr. Rakesh Joshi Revenue by: Mr. Asif Karmani, Sr. AR सुनवाईकीतारीख / Date of Hearing: 27/10/2022 घोषणाकीतारीख /Date of Pronouncement: 14/12/2022 आदेश / O R D E R PER ABY T. VARKEY, JM:

This is an appeal preferred by the Revenue against the order of the Ld.CIT(A)-8 Mumbai dated 30.11.2015 for AY 2007-08.

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties Court by order dated 07 June 2022 adjudicated and disposed off of both the assessee’s appeal against the order of this Tribunal (DB) order dated 09.04.2018 (Income Tax Appeal No. 127 of 2021) & the writ petition No. 1217 of 2020 filed by assessee against the third member (Tribunal order dated 13.11.2019). And while disposing of the assessee’s appeal and writ petition (supra), their Lordship was pleased to quash the order passed by the Tribunal in ITA No. 868/M/2016 dated 09 April 2018 (passed by the (DB) of this Tribunal); and restored the same (appeal) back to the file of this Tribunal for deciding the appeal on its merits in the light of the observations made in the High Court order. Therefore, it would be gainful to reproduce the order of the Hon’ble High Court dated 07 June 2022 which is as under:- The Appeal and Writ Petition are connected and have been argued together, and by consent, they are taken up for disposal by this common order. 2. The Appellant/Petitioner is referred to as Assessee, and the Respondents in the Appeal and Petition are referred to as Revenue. 3. The Assessee had undertaken a Slum Rehabilitation Project at Parel, Mumbai, namely “Kingston Tower". According to the Assessee, the project was initially approved by the Slum Rehabilitation Authority on 7 October 2002. However, due to issues regarding FSI, the Assessee filed an amended plan, which was approved subsequently, and a Letter of Intent for approval was issued on 16 April 2004 and an amended intimation of approval for the project was issued on 4 June 2004 The Assessee had filed a return of income for the assessment year 2007-08, declaring a total income of Rs.22050/-.

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties The Assessee had claimed deduction under Section 80-1B(10) of the Income Tax Act. 1961 (for short, the Act") of Rs.20533831/-. The assessment for 2007-08 was completed on 15 May 2009, and the deduction under particular provisions was granted. After that, the case for the assessment year 2007 2008 was reopened under Section 148 of the Act vide notice dated 17 December 2012 and an order was passed by the Assessment Officer on 7 March 2014, against which the Assessee filed an Appeal before the Commissioner of Income Tax (Appeals). Mumbai, which was allowed by the Commissioner of Income Tax (Appeals) by order dated 30 November 2015. The Revenue filed an Appeal before the Income Tax Appellate Tribunal, which was allowed by the impugned order dated 9 April 2018. After the order was passed on 9 April 2018, the Assessee filed an application for Rectification on 17 April 2018 under Section 254 (2) of the Act. This Rectification Application was rejected by order dated 29 November 2019. 4. Assessee has filed the Income Tax Appeal No. 127 of 2021, and against the order rejecting the Rectification Application dated 29 November 2019, the Assessee has filed Writ Petition No. 1217 of 2020.

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties was eligible for deduction in view of the said provisions of the Income Tax Act. 1961."

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties 10. In the Rectification Application, the Assessee sought to point out that in respect of the assessment year 2009-10, the decision of the Tribunal holding in favour of the Assessee, but the view of the Tribunal for the assessment year 2009-10 (ITA No 997 M/2013) was approved by this Court by dismissing the appeal filed by the Revenue ITA No. 159 of 2015 by the order dated 25 July 2017. The Assessee also sought to point out that the decision of the Tribunal in the case of Bhavya Constructions Vs. ACIT, this Court, by order dated 30 January 2020 in Income Tax Appeal No. 1009 of 2017. had set aside the same and remanded the matter to the Tribunal for a fresh hearing. However, the Tribunal did not consider the Rectification Application and dismissed the same. 11. The Assessee contends that if the Tribunal wanted to differ from the earlier view, the matter ought to have been referred to the Larger Bench. The Assessee contends that the date of approval of the project referred to in the earlier order was not a mistake or oversight but it was a specific finding on the issue and simpliciter taking a different view was improper on the part of the Tribunal. The Assessee also contends that when the fact that the orders of Tribunal for the assessment years 2009-10 and 2010-11 were confirmed by this Court was pointed out, it ought to have been taken into consideration, and the Application for Rectification was without an reasons erroneously rejected. Apart from this position, the learned Counsel for the Assessee has also placed on record a copy of the order passed by this Court in Income Tax Appeal No. 265 of 2017 in respect of the Assessee's own case for the assessment year 2010-11 The learned Counsel for the Revenue supported both the impugned orders.

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties 12. The Tribunal has proceeded on the premise that there was an error in the orders passed by the Tribunal for the assessment years 2009-10 and 2010-11 in respect of the Assessee's case, which goes to the root of the matter and therefore, the Tribunal is entitled to take a different view. However, the fact that the orders passed by the Tribunal for the assessment years 2009-10 and 2010-11 were challenged by the Revenue by filing appeals in this Court, and they were dismissed, confirming the findings rendered therein was the material aspect which ought to have been considered by the Tribunal. If it was missed out when the Tribunal passed the order impugned dated 9 April 2018, when it was sought to be placed on record through Rectification Application, at that time, the Tribunal should have considered the implications of the order. The order passed by this Court in respect of the assessment year 2010 2011 has been rendered thereafter on 9 April 2018. Even the order setting aside the decision in the case of Bhavya Construction Co, and remanded the proceedings to the Tribunal was rendered on 30 January 2020. 13. Therefore, on the aspect of what will be the relevant date in the facts of the Assessee's case, the orders passed by this Court dismissing the Revenue's Appeals would be relevant, and the implication of the same ought to be considered by the Tribunal before deciding whether the Assessee is entitled to the benefit of provisions under Section 80- IB(10) of the Act in respect of the relevant assessment year. In these circumstances, we are of the opinion that the impugned order passed by the Tribunal dated 9 April 2018 is required to be quashed and set aside. The Appeal filed by the Revenue being ITA No. 868/ Mum/2016 is required to be restored and considered on its own merits in the light of observations made in this order and after considering 6

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties the documents/orders sought to be placed on record through Rectification Application. The question framed stands answered accordingly. 14. The impugned order passed by the Tribunal dated 9 April 2018 is quashed and set aside, and the appeal being ITA No 868/Mum/2016 is restored to the file. The Tribunal will decide the Appeal afresh on its own merits in the light of observations made in this order and in the light of documents sought to be placed on record by the Assessee in his Miscellaneous Application dated 17 April 2018. 15. Appeal and Writ Petition are disposed of in the above terms. 16. In the light of the disposal of this Appeal by the above order, the impugned order rejecting the Rectification Application does not survive.[Emphasis given by us] 3. In the light of their Lordship’s order dated 07 June 2022 (supra), the earlier orders of this Tribunal in this appeal stands quashed and since the appeal (ITA. No. 868/Mum/2016) has been restored to the file of this Tribunal, with the direction to decide the same on merits (denovo) and as per the observations made by their Lordship’s, we are taking up the appeal of Revenue afresh for adjudication.

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties 2. "On the facts and circumstances of the case the Ld.CIT (A) erred in ignoring the fact that there was no change of opinion as the matter was not examined in the proceedings u/s 143(3) of I.T. Act and the material on record proved that there was escapement of income as such the claim of assessee for the deduction u/s 80IB (10) was allowed without examination." 3. "Whether on the facts of the case and in law the Ld. CIT (A) was right in allowing the claim of the assessee of deduction u/s 80IB(10) of Rs.2,05,33,831/- in respect of Slum Rehabilitation Project (SRA) ignoring the fact that project was approved prior to 1.04.2004 and was not eligible for deduction u/s 80IB(10) as per the notification of CBDT no.67 dated 03.08.2010 read with corrigendum vide notification no.2 of 2011. 4. "The appellant prays that the order of CIT (A) on the above ground be set aside and that of the Assessing Officer be restored." 5. "The appellant craves leave to amend or alter any ground or add a new ground which may be necessary."

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties a slum development project [the Kingston Towers at Paral ], the assessee claimed deduction u/s 80IB (10) of the Act and filed Return of income (ROI) declaring total income of Rs. 22,053/- [after claiming deduction u/s 80 IB(10) of the Act of Rs. 2,05,55,884/-] and offered Minimum Alternate Tax u/s 115JB of the Act on book-profit of Rs 3,77,85,596/-; and the AO completed the original scrutiny assessment u/s 143(3) of the Act for relevant AY. 2007-08 vide order dated 15.05.2009, by accepting the ROI i.e, the AO allowed the claim of the deduction claimed by the assessee u/s 80 IB(10) of the Act after examining the same. Later in the assessee’s assessment for subsequent year i.e. AY 2009-10, the 8 AO disallowed the deduction u/s 80IB(10) of the Act on the reason that, as per the CBDT notification only slum projects which are approved on or after 1st April 2004 was only eligible for deduction u/s 80 IB(10) of the Act and since the assessee’s project (slum development) was initially approved on 07.10.2002, the assessee was not entitled to the ibid deduction. 9. Taking a cue from the action of AO in assessee’s case for AY 2009-10 (disallowing the deduction u/s 80 IB(10) of the Act), the AO issued notice u/s 148 of the Act dated 17.12.2012 (refer page 1 PB-II) proposing re-opening of the assessment of this relevant assessment year i.e. AY. 2007-08; and pursuant to the notice, the assessee requested AO to provide the “reasons for re-opening” which was given to the assessee (refer page 3 PB-II). It is noted that the AO served the copy of “reasons recorded to re-open’ the assessment on 30.10.2013, and the assessee objected to the re-opening (refer letter placed at page 5 to 13 PB-II) which

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties was disposed by AO vide latter dated 27.12.2013 (refer page 14-15 PB-II);and thereafter the AO after hearing the assessee passed the re-assessment order dated 07.03.2014 u/s 147 read 143(3) of the Act, wherein the AO was pleased to disallow the deduction claimed by assessee u/s 80 IB(10) of the Act to the tune of Rs. 2,05,33,831/-. 10. Aggrieved by the action of AO, the assessee preferred an appeal before the Ld.CIT(A) wherein it challenged the action of AO to have re-opened the assessment for AY 2007-08, u/s 147 of the Act as well as on merits. The Ld.CIT(A) vide the impugned order dated 30th Nov 2015 was pleased to allow both the legal ground as well as the grounds raised on merits. 11. Aggrieved by the impugned action of Ld.CIT(A), the Revenue is before us raising the grounds of appeal (supra) on both legal grounds as well as on merits. 12. Since the Revenue has assailed the action of Ld.CIT(A) to have held the AO’s action to re-open the assessment for AY. 2007-08 itself without jurisdiction, we need to adjudicate the legal issue pertaining to AO’s jurisdiction to have re- opened the assessment. For that we have to examine whether the AO had satisfied the essential condition precedent as required u/s 147 of the Act, to validily re-open the assessment for AY 2007-08. 13. We have heard both the parties and perused the records. Since the Revenue has challenged the Ld.CIT(A)’s impugned action of holding the re-opening of assessment itself bad in law, let us look into the settled position of law regarding re-opening u/s 147 of the Act.The concept of assessment is governed by the time-

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties barring rule; and an assessee acquires a right as to the finality of proceedings. Quietus of the completed assessments can be disturbed only when there is information or evidence regarding undisclosed income or AO had information in his possession showing escapement of income as stipulated u/s 147 of the Act. As per Section 147 of the Act, if the AO had to re-open the assessment, then AO has to record the reason to reopen the assessment, wherein he should record the “reason to believe, escapement of income”. It is settled principle of law that reason to believe postulates a foundation based an information and belief based on reason. After a foundation based on information is there, still, there must be some reason which should warrant the holding of a belief that income chargeable to tax has escaped assessment. In other words, before the AO issues notice u/s 148 of the Act, he must have recorded the reason to believe escapement of income. It is no doubt true that this Tribunal cannot go into the sufficiency or adequacy of the material and substitute its own opinion for that of the AO on the point as to whether action should be initiated for re-opening the assessment. At the same time, we have to bear in mind that it is not any and every material, howsoever vague and indefinite or distant or remote and far-fetched, which would warrant the formation of belief relating to escapement of income. It is well settled in law that reasons as recorded by AO for re-opening the assessment, are to be examined on a stand- alone basis. Neither anything can be added to the reasons so recorded, nor can anything be deleted from the reason so recorded. The Hon’ble Bombay High Court in the case of Hindustan Lever Ltd. (2004) 268 ITR 332 (Bom) has inter alia observed that “……it is needless to mention that the reasons are required to be read

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties as they were recorded by the AO. No substitution or deletion is permissible. No additions can be made to those reasons. No inference can be allowed to be drawn on the basis of reasons not recorded by him. He has to speak through the reasons”. Their Lordship added “The reasons recorded should be self-explanatory and should not keep the assessee guessing for reason. Reason provide link between conclusion and the evidence…”. Therefore, the Ld. DR’s contention before us that while examining the legal validity of the re-opening of assessment, we not only have to consider the reasons recorded by AO to re-open the assessment, but also consider the AO’s action of handing over the transaction data of hawala purchases [received from the DGIT(Inv.), Mumbai and copy of AIR (ITS) data], cannot be accepted as held by the jurisdictional High Court that while examining the jurisdiction of AO to have re-opened the assessment, we have to only consider the reasons recorded by the AO on a stand-alone basis and adjudicate as to whether AO has satisfied in the reasons recorded, the condition precedent i.e, reason to believe escapement of income) to validly reopen the assessment.

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties a minimum alternate tax u/s 115JB of the Act on book profit of Rs.3,77,85,596/-. The assessee has claimed deduction u/s 801B(10) of I.T. Act amounting to Rs.2,05,33,831 in respect of profit derived from development of residential building at Parel in the name and style of "Kingston Towers". The assessment was completed u/s 143(3) of the I.T. Act on 15/05/2009 accepting the Return of Income of the assessee. In this case, assessment for A.Y. 2009-10 was taken up for scrutiny. During the course of assessment proceedings, the A.O observed that the assessee had claimed deduction u/s 801B(10) amounting to Rs. 1,03,79,815 in respect of profit derived from development of residential building at Parel in the name and style of "Kingston Towers". This project is said to be approved by Slum Rehabilitation Authority of Maharashtra state. On perusal of Auditor's report, it was observed that it had completed 67% of the project at Parel as on 31.03.2009. As per clause (a) to section 80 IB (10) of Income Tax Act, where a housing project had been approved by the local authority on or before 1" day of April 2004, it should have completed construction of the project on or before 31" March 2008. The construction project of the assessee company at Parel was approved by Slum Rehabilitation Authorities on 7 October 2002 and the Commencement Certificate was issued on 31/03/2003. Thus, the project was approved prior to 1st day of April 2004. As per Notification of CBDT No. 67 dated 03/08/2010 read with Corrigendum vide Notification No. 2 of 2011 of the Board, the project of the assessee company did not fall within the period of approval mentioned in the said notification dated 3rd August 2010.

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties As such, the AO held that the assessee company had not satisfied condition laid down in clause (a) to section 80 IB (10) of I.T. Act and disallowed the claim of deduction u/s 80 IB (10) amounting to Rs. 1,03,79,815/- The assessee company has claimed deduction u/s 80 IB (10) in respect of the same project at Parel for the A.Y.2007-08 also. Since it is held that the assessee had not satisfied conditions laid down in A.Y. 2009-10, the conditions are not satisfied for this year also as the project has not been completed before 31.03.2008. Hence, the claim of deduction u/s 80 IB(10) for A.Y.2007-08 amounting to Rs.2,05,33,831/- is incorrect and needs to be withdrawn. In view of the above, have reason to believe that income chargeable to tax has escaped assessment. Hence, the assessment for A.Y. 2007-08 is hereby reopened u/s. 147 of the IT. Act in the case of the assessee".

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties completed before 31.03.2008. And since the AO for subsequent AY 2009-10 held that the assessee got the initial approval on 7th Oct 2002, for the assessee’s project at Parel (Kingston Tower) was not eligible for deduction u/s 80IB(10) of the Act because it got approval before 1st day of April 2004 and also because the project has not been completed before 31.03.2008, the AO was of the opinion that for the relevant assessment year i.e, AY 2007-08, the assessee’s project at Parel (Kingston Tower) was not eligible for deduction u/s 80IB(10) of the Act. So we find that the foundation on the basis of which the AO resorted to re-opening the assessment for the relevant AY 2007-08 was due to the subsequent action of AO for assessment year 2009-10 wherein he disallowed the deduction claimed by the assessee u/s 80IB (10) of the Act on two (2) counts that is (i) the assessee’s project at Parel (Kingston Tower) was approved before 1st day of April 2004 and that (ii) the project has not been completed before 31.03.2008 and therefore he had reason to believe escapement of income for AY 2007-08. 16. Before we proceed further to adjudicate the legal issue regarding jurisdiction of AO to re-open the assessment of the relevant AY 2007-08 on the basis of assessment framed for AY 2009-10, it is crucial to take note of an important fact i.e, subsequent development about the fate of Appeal by assessee for AY 2009-10. We note that the assessee being aggrieved with the action of AO disallowing the deduction u/s 80IB (10) of the Act for the project at ‘Kingston Tower’ at Parel for AY 2009-10 had preferred an appeal before the Ld.CIT(A), who was pleased to allow the appeal in favor of assessee and thus allowed the deduction u/s 80IB (10)

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties of the Act wherein the Ld CIT(A) negated both the reason given by AO to disallow the deduction [which has been reproduced by the Tribunal (infra) while up-holding the action of Ld CIT(A)]. 17. Further, we note that the Revenue challenged the action of Ld.CIT(A) [for AY 2009-10], which was dismissed by this Tribunal vide order dated 05.08.2014 (ITA No. 997/M/2013) wherein the Tribunal confirmed the action of Ld.CIT(A) by holding as under:- In this appeal, Revenue raised the following grounds which read as under: “Whether on the facts and in the circumstances of the case and in law, the Ld CIT (A) justified in allowing deduction under section 801B (10) of the Income Tax Act of Rs. 1,03,79,815/- in respect of profit derived from development of residential building by holding that assessee is covered by proviso to clause (a) and (b) of section 8018 (10) without appreciating the fact that the project was approved by the Slum Rehabilitation Authority on 7.10.2002 which did not fall within the period of approval as per Board's Notification No.2 of 2011.” 2. “Whether on the facts and in the circumstances of the case and in law the Ld CIT (A) was justified in holding that revised project and plan of the assessee was approved cause (a) and clause (b) of section 801B (10) of the Act and as such rigors of clause (a) and clause (b) would not be applicable to the project of the assessee without appreciating the fact that as per Explanation 1 to clause (a) of section 801B(10) of the Act where approval in respect of the housing project had been obtained more than once, such project

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties shall be deemed to have been approved on the date on which the building was approved by the local authority for the first time." 3. During the proceedings before us, at the outset, Shri Rakesh Joshi, Ld Counsel for the assessee brought our attention to the above mentioned grounds and mentioned that the only issue raised before the Tribunal relates to the allowability of deduction u/s 801B (10) when the project in question is cleared after approval of the Slum Rehabilitation Authority. It is the claim of the assessee that the due dates for completion of project provided under subsection-10 of section 801B are not applicable to the project like this in view of the immunity provided under proviso to clause (a) &(b) of the said sub-section 10. It was demonstrated before us that the CIT (A) examined the said provisions read with the notification issued by the CBDT in this regard and allowed the claim of the assessee. 4. On the other hand, Ld DR relied on the orders of the Revenue Authorities. 5. We have heard both the parties and perused the orders of the Revenue Authorities as well as the relevant material placed before us. After hearing both the parties and on perusal of the (A)'s order, we find the CIT (A) has given the finding categorically by holding that the project in question is a Slump Rehabilitation Project and the time limit provided in the statute will not be applicable to the assessee in view of the proviso to section 80IB(10). The contents of para 6.1 of the impugned order are relevant and the same reads as under:- "6.1. Therefore, from the proviso below clause (b) of sub-section 80IB(10), it is clear that if any project is declared within the scheme framed by Central Government or Statement from Slum Rehabilitation/redevelopment, then rigors of clause (a) and clause

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties (b) will not apply to such projects. There is no denial of the fact that the project of the assessee has been approved as Slum Rehabilitation Project by Slum Rehabilitation) Authority of Maharahtra State and the approval has been given on 4.6.2004, therefore, it is clearly covered by the proviso below clause (b) of sub- section 80IB(10), whereas, any other restriction for date of start and completion put by any notification or instruction etc cannot override the Act of Parliament. Hence, considering any such notification and holding such project out of the applicability of the proviso below clause (b) of sub-section 80IB(10) by the AO is not correct. The assessee has correctly relied on the decision of the Hon'ble ITAT in the case of Asha Kashiprasad Ringshia (supra), which is directly on the same issue and relevant portion as reproduced by the assessee in its submissions is again reproduced below. "Thus, rigors of the conditions enumerated in clauses (a) and (b) of section 80IB, has been relaxed by the legislature to achieve certain socio-economic object and, therefore, proviso to section 80IB should be given a liberal interpretation so as to not to defeat a genuine claim for deduction by a developer who undertakes to develop a housing project in a slum area under the scheme approved by the Central or State Govt. The CBDT which had issued the notification after more than five years of the amendment, has put a time limit of those housing projects which has been approved by the local authority on / or after 1 April, 2004. Such a time limit can defeat the basic purpose of the proviso for which it was enacted as in the said proviso, the limit provided

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties in clause (a) of section 80IB(10) has not been specifically made applicable, therefore, such a time limit cannot be imposed by way of subordinate legislation. Such notification can only clarity the statutory provisions and not override them or restrict the operation of the main enactment. Therefore, in our considered opinion, the time limit of approval on/or after 1 April, 2004 will not be applicable in the case of the proviso to section 80IB(10)." 6. Considering the above, we are of the opinion that the CIT (A) has rightly adjudicated the issue under consideration and we find no infirmity in the order of the CIT (A). Therefore, the order of the CIT (A) is fair and reasonable and it does not call for any interference. Accordingly, grounds raised by the Revenue are dismissed.[Emphasis given by us]

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties notified. The assessee has submitted the project and the plan dated 28.04.2004 and the same was approved by the Rehabilitation Authority on 04.06.2004, the same is filed on record. The Tribunal has also considered the said aspect, so also proviso to Section 80IB(10) of the Act and has correctly passed the order. The judgment of the Tribunal cannot be faulted with. 5. In view of the above facts and circumstances, no interference is called for. The appellant is dismissed. No costs.”

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties structure falls. In the case of Badarinath Vs. Tamilnadu AIR 2000 (SC) 3243 SC the Hon’ble Supreme Court has held that once the basis of proceeding is gone, all consequential order and acts would fall on the ground automatically which is applicable to judicial and quasi-judicial proceedings. 21. Therefore we find the AO’s action of re-opening the original completed assessment for AY. 2007-08 on an issue which was enquired by the AO in the first round u/s 143(3) of the Act dated 15.05.2009 was without jurisdiction & therefore the Ld.CIT(A) has rightly held the action of AO to have re-opened the assessment as bad in law which is upheld on this reason (supra) also. 22. Since we upheld the action of Ld.CIT(A) quashing the re-assessment order dated 07.03.2014, we dismiss the appeal of the Revenue. 23. And since we have upheld the action of Ld.CIT(A) on the legal ground, we are not inclined to decide the merits being academic. 24. In the result, the appeal filed by the revenue stands dismissed. Order pronounced in the open court on this 14/12/2022.

Sd/- Sd/- (S. RIFAUR RAHMAN) (ABY T. VARKEY) JUDICIAL MEMBER ACCOUNTANT MEMBER मुंबई Mumbai; दिनांकDated : 14/12/2022. Shubham Lohar,

ITA NO.868/MUM/2016 AY 2007-08 M/s Omega Investment and Properties आदेशकीप्रनिनलनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकरआयुक्त(अपील) / The CIT(A)- 4. आयकरआयुक्त / CIT 5. दवभागीयप्रदतदनदि, आयकरअपीलीयअदिकरण, मुंबई / DR, ITAT, Mumbai 6. गार्डफाईल / Guard file. आदेशधिुसधर/ BY ORDER, सत्यादपतप्रदत //True Copy// उि/सहधयकिंजीकधर /(Dy./Asstt. Registrar) आयकरअिीलीयअनर्करण, मुंबई / ITAT, Mumbai