CHANDRA FINANCIAL SERVICES P.LTD,MUMBAI vs. ASST CIT 2(1)(1), MUMBAI

PAN No. AABFA1353R (Assessee) (Revenue) Assessee by : Shri Neelkanth Khandelwal, A.R Revenue by : Shri R.K. Sahu, D.R Date of Hearing : 24/08/2021 Date of pronouncement : 18/11/2021 ORDER PER RAVISH SOOD, J.M: The present appeal filed by the assessee is directed against the order passed by the CIT(A)-4, Mumbai, dated 03.01.2017, which in turn arises from the order passed by the A.O u/s 144 r.w.s 147 of the Income Tax Act, 1961 (for short „Act‟) dated 20.03.2015 for A.Y. 2009-10. The assessee has assailed the impugned order on the following grounds before us:

“The Assistant Commissioner of Income-tax 2(1)(1), Mumbai (hereinafter referred to as the Assessing Officer) erred in issuing notice under section 148 of the Act.

2. The Commissioner of Income-tax (Appeals) - 4, Mumbai (hereinafter referred to as the CIT(A)) erred in upholding the action of the Assessing Officer in upholding the action of the Assessing Officer in making an addition of a sum of Rs.17,00,00,000 being amounts received as share application money on the ground that the appellants failed to prove the nature and genuineness of the share capital and creditworthiness of the share applicants thereby treating the said sums as unexplained cash credit under section 68 of the Act.

2 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1)

The appellants contend that on the facts and in the circumstances of the case and in law, the CIT(A) ought not to have upheld the action of the Assessing Officer in making the impugned addition inasmuch as the monies do not belong to the appellants and the provisions of section 68 are not applicable to the facts of the case.

3. The CIT(A) erred in upholding the action of the Assessing Officer in treating business loss of Rs.9,09,65,476 as speculation loss by invoking the provisions of Explanation to section 73. The appellants contend that on the facts and in the circumstances of the case and in law, the CIT(A) ought not to have upheld the action of the Assessing Officer inasmuch as the Assessing Officer has fallen in error in treating the business loss as speculation loss by invoking the provisions of Explanation to section 73.

4. The CIT(A) erred in upholding the action of the Assessing Officer in charging interest Rs.5,64,279, Rs 4,06,28,111 and Rs.3,23,607 under sections 234A, 234B and 234D of the Act. The appellants contend that the CIT(A) ought not to have upheld the action of Assessing Officer in charging interest under sections 234A, 234B and 234D inasmuch as - (a) the Assessing Officer has not given an opportunity to the appellants before charging the said interest as required by the principles of nature justice, (b) the charging of interest is not in accordance with law. The appellants crave leave to add to, alter and/or amend the aforestated grounds of appeal

.”

2. Briefly stated, the assessee company which is engaged in the business of trading and investment in shares and derivatives had e-filed its return of income for A.Y 2009-10 on 30.09.2009, declaring an income of Rs.nil (after claiming loss of Rs.9,23,62,408/-). Original assessment was framed by the A.O vide his order passed u/s 143(3) of the Act, dated 29.12.2011.

3 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1) to the aforesaid notice. The request of the assessee was accepted by the A.O who thereafter issued notice u/s 143(2), dated 11.09.2014. Also, the A.O vide his letter dated 23.07.2014 made available to the assessee a copy of the reasons to believe on the basis of which its case was reopened under Sec. 147 of the Act. As the assessee had failed to comply with the notices that were issued to him U/ss. 143(2)/142(1) of the Act, therefore, the A.O was constrained to proceed with and frame the assessment u/s 144 of the Act. However, the assessee at the fag end of the assessment proceedings i.e on 13.03.2015 had filed with the A.O its written submissions.

(a) M/s Jay Investtrade Private Ltd. (b) M/s Shanti Financial Services Private Ltd. (c) M/s HSM Financial Services Private Ltd. (d) M/s Kundan Leasing and Finvest Private Ltd.

It was observed by the A.O that the assessee company had claimed to have allotted shares to the aforementioned share subscribers, as under:

Sr. No. Name of the Address of the Number of Amount received share subscribers Share Subscribers shares Allotted as share application money (in Rs.) 1 M/s Jay 21, Modi Street, 1,30,000 1,30,00,000/- Achal Building, 3rd Investtrade Private Ltd. Floor, Fort, Mumbai 400001 2 M/s Shanti 21, Modi Street, 8,00,000 8,00,00,000/- Achal Building, 3rd Financial Services Private Floor, Fort, Ltd. Mumbai 400001 3 M/s HSM 21, Modi Street, 2,00,000 2,00,00,000/- Achal Building, 3rd Financial Services Private Floor, Fort,

4 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1)

Ltd. Mumbai 400001 4 M/s Kundan 21, Modi Street, 5,70,000/- 5,70,00,000/- Achal Building, 3rd Leasing and Finvest Private Floor, Fort, Ltd. Mumbai 400001 Total 17,00,00,000/- It was noticed by the A.O that not only the address of the assessee and the aforementioned share subscribers was the same, but even some of the directors in the aforesaid companies were common. It was further observed by the A.O that as per the „Notes‟ to the financial statements the assessee company was restrained from accessing the securities market and was prohibited by SEBI from directly or indirectly buying/selling or dealing in securities market. On a further perusal of the records, it was gathered by the A.O that SEBI vide its order passed under Sec. 11 and 11B of the Securities and Exchange Board of India Act, 1992, dated June 4th, 2009 in the case of the Venture Business Advisors Pvt. Ltd. (VBAPL) had held, that the assessee and all the companies to whom the assessee had claimed to have allotted shares had indulged into fraudulent and deceptive practice of creating false and misleading appearance of share transactions in market and off market routes. It was further observed by the A.O that by another order dated August 20, 2014 the SEBI had restrained VBAPL for a period of 10 years. In the backdrop of the aforesaid facts, it was observed by the A.O that the assessee as well as the other companies to whom shares were claimed to have been allotted were involved in dubious trade practices and there was a clear linkage between these companies with the purpose of making false transactions. It was further noticed by the A.O that a perusal of the investment schedule of the assessee company revealed that it had invested in the companies from which it had received money for share application. Also, it was observed by him that the investment schedule of the other companies revealed that they too had made investments in each other as well as in the assessee company. The aforesaid factual position was culled out by the A.O in the assessment order as under:

5 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1)

Sr. No. Name of the No. of shares Amount company invested (in Rs.) 1. Chandra 93500 preference shares of Shanti Financial 9,25,00,000/- Financial Services P. ltd. Services Pvt. Ltd. 576000 preference shares of Jay Investrade 5,76,00,000 P. Ld.

3. Shanti Financial 8,00,000 preference shares of Chandra 8,00,00,000/- Services Pvt. Financial Services P. Ltd. Ltd. 1,50,000 preference shares of jay Investrade 1,50,00,000/- P. Ltd.

Backed by his aforesaid observations the A.O was of the view that there was a circular flow of money in the form of investments wherein the same company was investing in and allotting its preference shares to other companies. Apart from the aforesaid, it was gathered by the A.O that all the aforementioned companies (including the assessee company) had suffered huge losses during the year under consideration, as under:

Sr. No. Name of the company Returned income for A.Y. 2009-10 (In Rs.) 1 Chandra Financial Services P. Ltd. Loss of Rs. 9,23,62,408/- 2 Jay Investrade Pvt. Ltd. Loss of Rs.3,41,58,259/- 3 Shanti Financial Services Pvt. Ltd. Loss of Rs.3,24,28,420/- 4 HSM Financial Services Pvt. Ltd. Loss of Rs.15,67,30,248/- In the backdrop of the aforesaid facts, the A.O held a conviction that now when the aforementioned companies were incurring huge losses, therefore, it could safely be gathered that they were in no financial position to pay such huge share capital/premium to the assessee which itself was a huge loss making company. It was also noticed by the A.O that the assessee had not supported the high share premium received from the aforesaid share allotees on the basis of any valuation report. Also, it was observed by the A.O that the assessee company despite specific directions had not submitted a copy of the board resolution to support its 6 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1) aforesaid transactions. In the totality of the aforesaid facts, the A.O drawing support from the judgment of the Hon‟ble High Court of Bombay in the case of Major Metals Ltd. Vs. U.O.I & Ors (2013) 359 ITR 450 (Bom) concluded that the ratio laid down by the Hon‟ble High Court in its aforesaid judgment squarely covered the facts and circumstances of the case of the assesse before him. On the basis of the aforesaid facts, the A.O was of the view that the assessee had failed to provide any credible evidence in support of the nature and genuineness of the share capital and creditworthiness of the share applicants. Also, the A.O observed that the assessee could not substantiate the huge premium that was charged on the shares allotted to the aforementioned companies. It was observed by the A.O that the cross-investments between the assessee and the so called investor companies to whom shares were claimed to have been allotted further supported the ingenuineness of the transactions in question. Backed by the aforesaid facts the A.O stamped the receipt of share capital and share premium of Rs.17 crores as an unexplained credit u/s 68 of the Act.

7 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1) observations the A.O vide his order passed u/s 144 r.w.s 147, dated 20.03.2015 assessed the income of the assessee company at Rs.17 crores.

A.O that the assessee‟s income chargeable to tax had escaped assessment. Apart from that, it was submitted by the ld. A.R that even otherwise the A.O had embarked upon the reassessment proceedings only on the basis of a change of opinion as against that as was arrived at by his predecessor while framing the original assessment. Elaborating on his aforesaid contention, it was submitted by the ld. A.R that the issue pertaining to receipt of share premium by the assessee company which had formed the very basis for reopening of the assessee‟s case was duly considered by the A.O in the course of the original assessment proceedings which had culminated into an order under Sec. 143(3), dated 29.12.2011. In order to fortify his aforesaid contention the ld. A.R had drawn our attention to the “Annexure” to notice u/s 142(1), dated 10.02.2011, wherein at Serial No. 17 and Serial No. 20 the A.O had, inter alia, raised queries pertaining to the increase in share capital a/w details as regards the names and addresses of the shareholders who were having more than 10% of shares and their shareholding pattern, income tax credentials etc. Our attention was drawn by the ld. A.R to the reply dated 02.11.2011 that was filed by the assessee in compliance to the aforesaid notice issued u/s 142(1) of the Act, wherein at Serial Nos. 9 & 11 the assessee had furnished an „Explanatory note‟ as regards the increase in share capital a/w the details as regards the shareholders. Backed by his aforesaid contentions the ld. A.R had assailed the validity of the reopening of the concluded assessment of the assessee company for two fold reasons, viz. (i) that the case of the assessee was reopened in the absence of any material/information on the basis of which the A.O could have formed a bonafide belief that the income of the assessee chargeable to tax had escaped assessment; and (ii) that the reopening of the assessee‟s case was even otherwise not sustainable as the same was merely backed by a change of opinion of the A.O as against that as was held by his predecessor while framing the regular assessment vide order passed u/s 143(3), dated 29.12.2011 qua the issue of receipt of share premium by the assessee company.

9 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1)

the jurisdiction assumed by the A.O u/s 147 of the Act before the lower authorities, therefore, it could not be permitted to now raise the same for the very first time in the course of the present appellate proceedings. Insofar the aforesaid objection of the ld. D.R is concerned, we are unable to persuade ourselves to accept the same. As noticed by us hereinabove, the ld. D.R in order to drive home his claim that the assessee having not challenged the validity of the jurisdiction assumed by the A.O u/s 147 of the Act, thus, could not be allowed to raise its objection qua the same in the course of the appellate proceedings had relied on the judgment of the Hon‟ble High Court of Madras in the case of Hanon Automotive Systems India (P.) Ltd. Vs. DCIT, Circle-2(2) (2019) 101 taxmann.com 514 (Madras). In our considered view, the support drawn by the ld. D.R on the aforesaid judicial pronouncement is misconceived and in fact misplaced in context of the facts involved in the case of the assessee before us. On a perusal of the aforesaid judgment, we find that the issue before the Hon‟ble High Court was as to whether or not the assessee without raising its objections before the lower authorities to the reasons to believe on the basis of which its case had been reopened could be permitted to question the reopening of its case by filing a writ petition before the Hon‟ble High Court ? Answering the said issue, it was observed by the Hon‟ble High Court that as the assessee had not raised objections before the A.O qua the reasons on the basis of which its case was reopened u/s 147, it would, thus, not be entitled to question the said reopening by filing a writ petition. In the backdrop of the aforesaid facts and the issue involved in the aforesaid case before the Hon‟ble High Court, we are of the considered view that the same in no way can be construed as laying down a broad proposition, as canvassed by the Ld. D.R, that an assessee cannot be allowed to assail the validity of the reassessment proceedings for the very first time in the course of the appellate proceedings. On the contrary, we are of the considered view that as the adjudication of the assessee‟s claim that the A.O had wrongly assumed jurisdiction and framed the assessment u/s 147 of the Act is 11 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1) based on the facts available on record, therefore, we find no reason as to why the same cannot be raised, though, for the first time in the course of the proceedings before us. Our aforesaid view is fortified by the judgment of the Hon‟ble Supreme Court in the case of National Thermal Power Co. Ltd. Vs. CIT (1998) 229 ITR 383 (SC). Also support is drawn from the judgment of the Hon‟ble High Court of Bombay in the case of CIT, Central 1, Mumbai Vs. Pruthvi Brokers and Shareholders (2012) 23 taxmann.com 23 (Bom). In its aforesaid order, the Hon‟ble High Court had observed that as an assessee is entitled to raise the additional ground not merely in terms of legal submissions, but also additional claims not made in the return filed by it. Backed by the aforesaid position of law, we are unable to persuade ourselves to subscribe to the claim of the ld. D.R that the assessee‟s challenge to the validity of the jurisdiction assumed by the A.O u/s 147 of the Act does not merit admission.

12 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1)

As is discernible from the aforesaid, the case of the assessee was reopened by the A.O, for the reason, that as per him the share premium of Rs.15.30 crores received by the assessee had remained unexplained in light of the decision of the Hon‟ble High Court of Bombay in the case of Major Metals Ltd. vs. UOI 207 taxman.com 185 (Bom). However, we find that there is no whisper by the A.O in the reasons of any such material and/or information that had formed a basis for him to arrive at a bonafide belief that the share premium received by the assessee company had remained unexplained. In our considered view, as per the mandate of law, the A.O for reopening of a concluded assessment is required to have before him reasons which had formed a basis for him to arrive at a bonafide belief that the income of the assessee chargeable to tax for the year under consideration had escaped assessment. Our aforesaid view is fortified by the judgment of the Hon‟ble Apex Court in the case of ACIT Vs. Rejesh Jhaveri Stock Brokers Pvt. Ltd. (2007) 291 ITR 500 (SC). In its aforesaid order, it was, inter alia, observed by the Hon‟ble Apex Court that a notice for reopening of an assessment u/s 147 of the Act could only be justified if the A.O has reasons to believe that the income of the assessee chargeable to tax had escaped assessment. On a perusal of the aforesaid reasons to believe on the basis of which the concluded assessment of the assessee before us had been reopened, we find that the same do not indicate any basis for forming of a belief by the A.O that the share premium received by the assessee company was unexplained and, thus, the income of the assessee chargeable to tax had escaped assessment. In the backdrop of the aforesaid facts, we are of a strong conviction that in the absence of any tangible material before the A.O to come to a conclusion that the income of the assessee chargeable to tax had escaped assessment, there was no justification on his part to have reopened the case of the assessee u/s 147 of the Act. Backed by our aforesaid observations, we are of the considered view that de hors any tangible material and/or information which could have formed a basis for the A.O to form a bonafide belief that the income

13 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1) of the assessee chargeable to tax had escaped assessment, the concluded assessment of the assessee could not have been validly reopened by him u/s 147 of the Act.

opinion that the additions to the share capital of the assessee company was in order. Backed by the aforesaid facts, we find substance in the claim of the ld. A.R that the reassessment proceedings had been initiated by the A.O not on the basis of any fresh tangible material or any new information which had came to his notice subsequent to the culmination of the original assessment proceedings, but on the basis of the same set of facts as were there before his predecessor at the time of framing of the regular assessment u/s 143(3) dated 29.12.2011. On a careful perusal of the reasons recorded by the A.O, we are of a strong conviction that in the garb of reopening the case of the assessee he had on the basis of the same set of facts as were available on record and had been deliberated upon by his predecessor at the time of framing of the original assessment tried to substitute his view as against that of his predecessor. In fact, we are unable to comprehend as to what new „material‟ or „information‟ had came to the notice of the A.O after the framing of the original assessment, which would have justified the reopening of its case. As can safely be gathered from a perusal of the reasons to believe, we are of the considered view that the A.O holding a conviction that his predecessor while framing the regular assessment was in error in accepting the share premium received by the assessee company, which as per him was unexplained, had thus with the sole objective of substituting his view as against that of his predecessor, therein, sought to reopen the case of the assessee company. We are afraid that such a substitution of a view of a successor A.O cannot form a justifiable basis for reopening the case of an assessee. Our aforesaid view is fortified by the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Kelvinator of India (2010) 320 ITR 561 (SC), wherein the Hon‟ble Apex Court had observed that merely on the basis of a „change of opinion‟ the case of an assessee cannot be reopened and had held as under:-

“On going through the changes, quoted above, made to s. 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, reopening could be done

15 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1) under above two conditions and fulfilment of the said conditions alone conferred jurisdiction on the AO to make a back assessment, but in s. 147 of the Act (w.e.f. 1st April, 1989), they are given a go by and only one condition has remained, viz., that where the AO has reason to believe that income has escaped assessment, confers jurisdiction to reopen the assessment. Therefore, post 1st April, 1989, power to reopen is much wider. However, one needs to give a schematic interpretation to the words "reason to believe" failing which, we are afraid, s. 147 would give arbitrary powers to the AO to reopen assessments on the basis of "mere change of opinion", which cannot be per se reason to reopen. We must also keep in mind the conceptual difference between power to review and power to reassess. The AO has no power to review; he has the power to reassess. But reassessment has to be based on fulfilment of certain pre-condition and if the concept of "change of opinion" is removed, as contended on behalf of the Department, then, in the garb of reopening the assessment, review would take place. One must treat the concept of "change of opinion" as an in-built test to check abuse of power by the AO. Hence, after 1st April, 1989, AO has power to reopen, provided there is "tangible material" to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. Our view gets support from the changes made to s. 147 of the Act, as quoted hereinabove. Under the Direct Tax Laws (Amendment) Act, 1987, Parliament not only deleted the words "reason to believe" but also inserted the word "opinion" in s. 147 of the Act. However, on receipt of representations from the companies against omission of the words "reason to believe", Parliament re-introduced the said expression and deleted the word "opinion" on the ground that it would vest arbitrary powers in the AO. We quote hereinbelow the relevant portion of Circular No. 549, dt. 31st Oct., 1989 [(1990) 82 CTR (St) 1], which reads as follows : "7.2 Amendment made by the Amending Act, 1989, to re-introduce the expression „reason to believe‟ in s. 147.—A number of representations were received against the omission of the words „reason to believe‟ from s. 147 and their substitution by the „opinion‟ of the AO. It was pointed out that the meaning of the expression, „reason to believe‟ had been explained in a number of Court rulings in the past and was well settled and its omission from s. 147 would give arbitrary powers to the AO to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended s. 147 to reintroduce the expression „has reason to believe‟ in place of the words „for reasons to be recorded by him in writing, is of the opinion‟. Other provisions of the new s. 147, however, remain the same.” Further, following the judgment of the „Full bench‟ of the Hon‟ble High Court of Delhi in the case of Kelvinator of India (supra), which had been upheld by the Hon‟ble Apex Court, the Hon’ble High Court of Bombay in the case of Asteroids Trading & Investment P. Ltd. Vs. DCIT (2009) 308 ITR 190 (Bom), had held, that an A.O is precluded from assuming jurisdiction to initiate

16 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1) reassessment proceedings on the basis of a „Change of opinion‟, observing as under:

“8. Perusal of the record shows that the petitioner had made full disclosure necessary for claiming deduction under s. 80M. The AO after applying his mind to the relevant records had made a specific order allowing the deduction. A perusal of the record shows that now respondent No. 1 proposes to reopen the assessment because according to him deduction under s. 80M was wrongly allowed, and, therefore, he was of the opinion that the income has escaped assessment. Though, in the notice respondent No. 1 has used the phrase "reason to believe", admittedly between the date of the order of assessment sought to be reopened and the date of forming of opinion by respondent No. 1, nothing new has happened and there is no change of law, no new material has come on record, no information has been received. It is merely a fresh application of mind by the same officer to the same set of facts. Thus, it is a case of mere change of opinion, which, in our opinion, does not provide jurisdiction to respondent No. 1 to initiate proceedings under s. 148 of the Act. It can now be taken as a settled law, because of a series of judgments of various High Courts and the Supreme Court, which have been referred to in the judgment of the Full Bench of the Delhi High Court in the case of Kelvinator of India Ltd. (supra) referred to above, that under s. 147 assessment cannot be reopened on a mere change of opinion.” We further find that the Hon’ble High Court of Bombay in the case of Asian Paints Ltd. Vs. DCIT (2008) 308 ITR 195 (Bom), had observed, that as no new information/material was received by the A.O, therefore, the fresh application of mind by him to the same set of facts and material which were available on record at the time of framing of the assessment but had inadvertently remained omitted to be considered would tantamount to review of order, which is not permissible as per law. The Hon‟ble High Court while concluding as hereinabove had held as under:-

“10. It is further to be seen that the legislature has not conferred power on the AO to review its own order. Therefore, the power under s. 147 cannot be used to review the order. In the present case, though the AO has used the phrase "reason to believe", admittedly between the date of the order of assessment sought to be reopened and the date of formation of opinion by the AO, nothing new has happened, therefore, no new material has come on record, no new information has been received; it is merely a fresh application of mind by the same AO to the same set of facts and the reason that has been given is that the some material which was available on record while assessment order was made was inadvertently excluded from consideration. This will, in our opinion, amount to opening of the assessment merely because there is change of opinion. The Full Bench of the Delhi High Court in its judgment in the case of Kelvinator (supra)

17 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1) referred to above, has taken a clear view that reopening of assessment under s. 147 merely because there is a change of opinion cannot be allowed. In our opinion, therefore, in the present case also, it was not permissible for respondent No. 1 to issue notice under s. 148”. Further, the Hon’ble High Court of Bombay in the case of ICICI Prudential Life Insurance Co. Ltd. Vs. ACIT (2010) 325 ITR 471 (Bom), relying on the judgment of the Hon‟ble Supreme Court in the case of Kelvinator of India (supra), had held as under:

18 Chandra Financial Services Pvt. Ltd. Vs. ACIT-2(1)(1)

Consequently, it is evident that there is an absence of tangible material before the AO”. Also, the Hon‟ble High Court of jurisdiction in the case of Aventis Pharma Ltd. Vs. Asst. CIT (2010) 323 ITR 570 (Bom), reiterating its aforesaid view that reassessment proceedings cannot be permitted on the basis of a „Change of opinion‟ had held as under:-

“There is merit in the submission which has been urged on behalf of the assessee that there was no tangible material before the AO on the basis of which the assessment could have been reopened and what is sought to be done is to propose a reassessment on the basis of a mere change of opinion. This, in view of the settled position of law is impermissible. No tangible material is shown on the basis of which the assessment is sought to be reopened. In the absence of tangible material, what the AO has done while reopening the assessment is only to change the opinion which was formed earlier on the allowability of the deduction. The power to reopen an assessment is conditional on the formation of a reason to believe that income chargeable to tax has escaped assessment. The power is not akin to a review. The existence of tangible material is necessary to ensure against an arbitrary exercise of power. There is no tangible material in the present case.

liable to be struck down. Resultantly, the Ground of appeal No. 1 is allowed in terms of our aforesaid observations.

Order pronounced in the open court on 18.11.2021