INTELENET GLOBAL SERVICES PRIVATE LIMITED ,MUMBAI vs. ASSISTANT COMMISSIONER OF INCOME TAX 12(2), MUMBAI

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 1 ITA No. 5844/Mum/2018 – A.Y 2009-10

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “C” MUMBAI BEFORE SHRI M. BALAGANESH (ACCOUNTANT MEMBER) AND SHRI RAVISH SOOD (JUDICIAL MEMBER) ITA No. 5844/MUM/2018 (Assessment Year: 2009-10)

M/s Intelenet Global Services Pvt. ACIT – 12(2), 145, Aaykar Ltd; Intelenet Towers, Plot CST No. Vs. Bhawan, Maharshi Karve Marg, 1406-A/28, Mindspace, Malad (W), Mumbai – 400 020 Mumbai – 400 090.

PAN No. AAACI7387P (Assessee) (Revenue) Assessee by : Shri S.K Tyagi, A.R Revenue by : Shri V. Sreekar, CIT D.R Date of Hearing : 24/02/2021 Date of pronouncement : 24/05/2021

ORDER PER RAVISH SOOD, J.M: The present appeal filed by the assessee is directed against the order passed by the CIT(A)-20, Mumbai, dated 30.05.2018, which in turn arises from the order passed by the A.O under Sec. 154 of the Income Tax Act, 1961 (for short „Act‟) dated 16.09.2017 for A.Y. 2009-10. The assessee has assailed the impugned order on the following grounds of appeal before us:

“1. The learned Id. CIT(A) erred in not cancelling the order passed by the Assessing Officer (AO), under section 154 of the Income-Tax Act, 1961 (the Act), for the AY 2009-10, dt. 16.9.2017, wherein the order passed under section 143(3) r.w.s. 147 of the Act, dt.23.3.2015, has been rectified.

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 2 ITA No. 5844/Mum/2018 – A.Y 2009-10 2. The Id CIT(A) failed to appreciate that when, vide his appellate order, dt.29.12.2017, he had held the aforesaid order under section 143(3), r.w.s.147, dt.23.3.2015, as bad in law, automatically the aforesaid reassessment »order stood cancelled and therefore, the impugned order under section 154 of the Act, dt. 16.9.2017, could not survive. 3. The Id CIT(A) failed to appreciate that the aforesaid ground was specifically raised before the CIT(A), vide appellant's written submissions, dt.22.5.2018, wherein, vide paragraph (II) of the submissions, it was clearly pointed out that as, vide paragraph 5.4.4 of the appellate order, dt.29.12.2017, it was held by the CIT(A) that the reopening of the assessment was bad in law, obviously the aforesaid reassessment order stood quashed/cancelled and therefore, the CIT(A) ought to have cancelled the impugned order under section 154 of the Act, as the reassessment order which was rectified vide the impugned order under section 154 of the Act, stood quashed / cancelled. 4. The CIT(A) failed to appreciate that the appeal against the impugned rectification order under section 154 of the Act, was filed on 27.10.2017, whereas the aforesaid appellate order for the AY 2009-10 was passed on 29.12.2017 and in view of this reason the ground that the aforesaid reassessment order already stood cancelled and accordingly, the impugned order under section 154 of the Act could not survive; could not be raised. 5. The Id CIT(A) failed to appreciate that when, vide his appellate order, dt.29.12.2017, against the reassessment order under section 143(3) r.w.s. 147 of the Act, for the AY 2009-10, he had allowed ground No. 4 of the appellant regarding addition of Rs.32,21,48,679/-, under section 68 of the Act, the same could not be added by the AO in the computation of income, in the impugned order under section 154 of the Act. 6. The Id. CIT(A) grossly erred in not cancelling the impugned order of rectification on the ground that the issue involved therein was a highly debatable one, which was not apparent on the face of the record and therefore, on this ground itself, the impugned order under section 154 of the Act, was liable to be quashed / cancelled. 7. All the aforesaid grounds of appeal are without prejudice to one another. 8. The appellant craves leave to add, alter, amend, modify or delete any or all the aforesaid grounds of appeal.” 2. Briefly stated, the assessee company which is engaged in the business of providing Information Technology Enabled Services (ITeS) had e-filed its return of income for A.Y 2009-10 on 29.09.2009, declaring a total income of Rs. Nil (after claiming deduction/exemption u/s 10A of Rs. 86,76,33,213/- and set-off of unabsorbed depreciation of Rs. 5,96,34,955/- from its gross total income of Rs. 92,72,68,168/-). The return of income was initially processed as such u/s 143(1) of the Act. Subsequently, assessment was framed by the A.O u/s 143(3) r.w.s

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 3 ITA No. 5844/Mum/2018 – A.Y 2009-10 144C(1), dated 28.01.2014 determining the assessee‟s total income under the normal provisions at Rs. 5,55,96,771/- (after set-off of unabsorbed depreciation of Rs. 11,49,85,610/-) and the „book profit‟ u/s 115JB at Rs. 90,99,78,259/-. Since the tax payable as per income assessed was worked out at Rs. Nil, therefore, the assessee was saddled with tax liability on its „book profit‟ determined u/s 115JB. Thereafter, on the basis of information received by the A.O from the Investigation wing of the department that the assessee company during the year under consideration had received share premium of Rs. 32,21,48,67,940/-, its case was reopened under Sec. 147 of the Act. Notice u/s 148 of the Act was issued on 27.03.2014 and duly served upon the assessee. In compliance thereto, it was submitted by the assessee that its original return filed on 29.09.2009 be treated as a return filed in response to the above mentioned notice. The aforesaid request of the assessee was accepted by the A.O and notices u/ss. 143(2)/142(1) were thereafter issued by him. 3. During the course of the reassessment proceedings, it was observed by the A.O that as per the information received from the investigation wing of the department the assessee company during the year under consideration was in receipt of share premium of Rs. 32,21,48,67,940/-. Although it was the claim of the assessee that the amount of share premium was shown in the securities premium account in the reserves and surplus of its balance sheet for the year in question, it was observed by the A.O that the said issue was neither discussed by the A.O in the assessment order nor in the order sheet notings. As the assessee failed to place on record any material to prove the nature and source of the share premium received during the year, the A.O, thus, considered the amount of Rs. 32,21,48,679/- as an unexplained cash credit u/s 68 of the Act. Vide his order passed under Sec. 143(3) r.w.s 147, dated 23.03.2015 the A.O added the share premium of Rs. 32,21,48,679/- to the assessee‟s „book profit‟ u/s 115JB of Rs. 90,99,78,259/- (as was determined in the assessment framed

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 4 ITA No. 5844/Mum/2018 – A.Y 2009-10 u/s 143(3) r.w.s 144C(1), dated 28.01.2014) and worked out the same at Rs. 123,21,26,938/-. 4. Aggrieved, the assessee assailed the reassessment order passed by the A.O under Sec. 143(3) r.w.s 147, dated 23.03.2015 before the CIT(A). It was observed by the CIT(A) that original assessment was framed by the A.O vide his order passed under Sec. 143(3) r.w.s 144C(1), dated 28.01.2014. It was further observed by him that the case of the assessee was reopened on 23.03.2015 i.e after expiry of a period of more than 4 years from the end of the relevant assessment year. It was observed by the CIT(A) that the case of the assessee was reopened on the basis of the information received from the Investigation wing that the assessee was in receipt of share premium of Rs. 32,21,48,679/-. On a perusal of the records it was observed by the CIT(A) that the receipt of share premium was duly disclosed by the assessee in “Schedule 2” of its balance sheet. On being confronted the A.O could not rebut the fact that the amount of share premium of Rs. 32,21,48,679/- was disclosed by the assessee in its financial statements. In the backdrop of the aforesaid facts, the CIT(A) being of the view that as there was no failure on the part of the assessee to disclose fully and truly all material facts as regards the share premium received by it as was necessary for its assessment, therefore, its case could not have been reopened after expiry of a period of more than 4 years from the end of the relevant assessment year. Accordingly, the CIT(A) on the basis of his aforesaid observations vide his order dated 29.12.2017 held the reopening of the assessee‟s case as bad in law. 5. In the mean time, the A.O after the culmination of the reassessment passed an order of rectification under Sec. 154, dated 16.09.2017. Reassessment order passed by the A.O under Sec. 143(3) r.w.s 147, dated 23.03.2015 was rectified by the A.O on two issues, viz. (i). that the set-off of unabsorbed depreciation of Rs. 11,49,85,610/- was wrongly allowed by the A.O

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 5 ITA No. 5844/Mum/2018 – A.Y 2009-10 vide his order passed under Sec. 143(3) r.w.s 144C(1), dated 28.01.2014 as the assessee had no unabsorbed depreciation left for set-off for A.Y 2008-09; and (ii). that the addition u/s 68 of share premium of Rs. 32,21,48,679/- was incorrectly made by the A.O while framing the assessment under Sec. 143(3) r.w.s 147, dated 23.03.2015 to the „book profit‟ u/s 115JB in place of the income under the normal provisions of the Act. On the basis of his aforesaid observations the A.O vide his order passed under Sec. 154, dated 16.09.2017 determined the income of the assessee under the normal provisions of the Act at Rs. 49,27,31,060/- and „book profit‟ under Sec. 115JB at Rs. 90,99,78,259/-, as under:

Amount (Rs.) Income under normal provisions determined u/s 143(3) r.w.s 17,05,82,381/- 144C(1), dated 28.01.2014 before allowing set-off of unabsorbed depreciation as the assessee had no unabsorbed depreciation left for set-off for A.Y 2008-09. Add : Disallowance u/s 68 32,21,48,679/- Total income as pr normal provisions 49,27,31,060/- Tax @33.99% 16,74,79,287/- Book Profit u/s 115JB 90,99,78,259/- Tax @10% 9,09,97,826/-

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 6 ITA No. 5844/Mum/2018 – A.Y 2009-10 record rectifiable u/s 154 of the Act. As regards the support drawn by the assessee from the fact that the impugned addition of Rs. 32,21,48,679/- made by the A.O u/s 68 was deleted by the CIT(A) while disposing off its appeal against the reassessment order vide his order dated 29.12.2017, the same did not find favour with the first appellate authority. It was observed by the CIT(A) that as the unexplained cash credit u/s 68 of Rs. 32,21,48,679/- was added by the A.O to the assessee‟s „book profit‟ u/s 115JB, therefore, it was in the said context that he had observed that no such adjustment was permissible for determining the „book profit‟ within the meaning of Sec. 115JB of the Act. It was observed that while disposing off the quantum appeal against the reassessment order the CIT(A) had not commented on the merits of the addition of Rs. 32,21,48,679/- that was made by the A.O u/s 68 of the Act. Further, the claim of the assessee that as the reassessment order passed by the A.O u/s 143(3) r.w.s 147, dated 23.03.2015 had been quashed by the CIT(A) as void ab initio, therefore, the rectification of such non-existent order was beyond comprehension, did not find favour with the CIT(A) and was held by him to be an irrelevant contention. As regards the objection of the assessee with respect to withdrawal of its claim for set-off of the brought forward depreciation by the A.O vide his order passed u/s 154, dated 16.09.2017, the CIT(A) directed the A.O to ascertain the assessee‟s claim of brought forward unabsorbed depreciation and allow set-off of the same as per law while computing its total income. It was, further observed by the CIT(A) that in case the assessee‟s claim for brought forward depreciation (as was claimed by the assessee vide its letter dated 14.09.2017) was not admissible, then, the A.O shall in his order give reasons as to why the said claim was not admissible. On the basis of his aforesaid observations the appeal of the assessee was partly allowed. 7. The assesse being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The Ld. Authorised representative (for short “A.R”) for

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 7 ITA No. 5844/Mum/2018 – A.Y 2009-10 the assessee assailed the assumption of jurisdiction by the A.O under Sec. 154 on two fold grounds, viz. (i). that as the mistakes, if any, in the order passed by the A.O were not apparent from record, the same, thus, could not have been brought within the realm of rectification u/s 154 of the Act; and (ii). that as the reassessment order passed by the A.O under Sec. 143(3) r.w.s 147, dated 23.03.2015 had been quashed by the CIT(A) vide his order dated 29.12.2017, therefore, rectification of such non-existent order was beyond comprehension. 8. Per Contra, the ld. Departmental Representative (for short “D.R”) relied on the orders of the lower authorities. 9. We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. Admittedly, it is only where an order passed by an A.O is found to be suffering from a mistake which is glaring, apparent, patent and obvious from record that the same renders it amenable for rectification. As held by the Hon’ble Supreme Court in the case of T.S Balaram, Income Tax Officer Vs. Volkart Brothers & Ors. (1971) 82 ITR 50 (SC) a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. It was observed by the Hon‟ble Apex Court that a decision on a debatable point of law is not a mistake apparent from the record. We shall in the backdrop of the aforesaid settled position of law deal with the grievance of the assessee that the A.O in the present case had traversed beyond the scope of the jurisdiction that was vested with him under Sec. 154 of the Act. 10. We shall first deal with the addition of the share premium of Rs. 32,21,48,679/- that was made by the A.O under Sec. 68 to the income of the

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 8 ITA No. 5844/Mum/2018 – A.Y 2009-10 assessee under the normal provisions of the Act vide his order passed u/s 154, dated 16.09.2017. As observed by us hereinabove, the A.O while framing the reassessment u/s 143(3) r.w.147, dated 23.03.2015 had held the share premium of Rs. 32,21,48,679/- as an unexplained cash credit within the meaning of Sec. 68 of the Act. However, the A.O instead of adding the unexplained cash credit of Rs. 32,21,48,679/- to the income of the assessee under the normal provisions of the Act had wrongly made an addition of the same to the assessee‟s „book profit‟ u/s 115JB of the Act. On appeal against the reassessment order, the CIT(A) inter alia observed that the addition of the aforesaid unexplained cash credit u/s 68 could not have been made to the „book profit‟ u/s 115JB of the Act. As the A.O had inadvertently while framing the reassessment vide his order passed u/s 143(3) r.w.s 147, dated 23.03.2015 added the unexplained cash credit of Rs. 32,21,48,679/- to the „book profit‟ u/s 115JB of the Act instead of adding the same to the income of the assessee under the normal provisions of the Act, therefore, he vide his order passed u/s 154, dated 16.09.2017 rectified the said mistake. In sum and substance, the A.O vide his order passed u/s 154, dated 16.09.2017 rectified his aforesaid mistake and added to the assessee‟s income under the normal provisions the amount share premium that was held by him as an unexplained cash credit u/s 68 while framing the reassessment, and at the same time reduced the said addition that was erroneously made by him to the „book profit‟ u/s 115JB of the Act. 11. We have given a thoughtful consideration to the issue in question and concur with the view taken by the CIT(A) that as the omission on the part of the A.O to add the unexplained cash credit u/s 68 of Rs. 32,21,48,679/- to the assessee‟s income under the normal provisions of the Act and instead wrongly adding the same to the „book profit‟ of the assessee u/s 115JB of the Act was a mistake which was glaring, apparent, patent and obvious from record, the A.O, thus had rightly rectified the same by invoking the powers vested with him u/s

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 9 ITA No. 5844/Mum/2018 – A.Y 2009-10 154 of the Act. We are unable to comprehend as to on what basis it is claimed by the ld. A.R that the issue in question being a debatable one would fall beyond the realm of the jurisdiction vested with the A.O u/s 154 of the Act. Be that as it may, in our considered view as the A.O remaining well within the scope of his jurisdiction had rectified the aforesaid mistake, thus, principally he cannot be held to have traversed beyond the scope of the jurisdiction that was vested with him u/s 154 of the Act. As regards the withdrawal of the set-off of the brought forward unabsorbed depreciation that was earlier allowed by the A.O vide his assessment framed u/s 143(3) r.w.s 144C(1), dated 28.01.2014, it transpires, that the A.O observing that as the set-off of unabsorbed depreciation of Rs. 11,49,85,610/- was wrongly allowed by him vide his order passed under Sec. 143(3) r.w.s 144C(1), dated 28.01.2014 as the assessee had no unabsorbed depreciation left for set-off for A.Y 2008-09, therefore, he had rectified the said mistake and vide his order passed u/s 154, dated 16.09.2017 withdrawn the set- off of the brought forward unabsorbed depreciation. In our considered view, as the allowing of set-off of unabsorbed depreciation by the A.O while framing the assessment under Sec. 143(3) r.w.s 144C(1), dated 28.01.2014 suffered from a mistake borne from the records which was glaring, apparent, patent and obvious from record, the same, thus, was amenable for rectification by the A.O u/s 154 of the Act. Be that as it may, we find that the CIT(A) while disposing off the assessee‟s appeal against the order passed by the A.O u/s 154, dated 16.09.2017 had directed him to ascertain the assessee‟s claim of brought forward unabsorbed depreciation and allow set-off of the same as per law while computing its total income. It was further observed by the CIT(A) that in case the assessee‟s claim for brought forward depreciation (as was claimed by the assessee vide its letter dated 14.09.2017) was not admissible, then, the A.O shall in his order give reasons as to why the said claim was not admissible. In our considered view, the CIT(A) had in all fairness directed the A.O to ascertain the assessee‟s claim of brought forward unabsorbed depreciation and allow set-off of

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 10 ITA No. 5844/Mum/2018 – A.Y 2009-10 the same as per law while computing its total income. Apart from that, the A.O had been directed to give reasons in case the assessee‟s claim for brought forward depreciation is not found to be admissible by him. We, thus, find no infirmity in the aforesaid view of the CIT(A) who in context of the aforesaid issue in question had rightly upheld the exercise of jurisdiction by the A.O u/s 154 of the Act, subject to certain verifications of facts. In the backdrop of our aforesaid observations, we are of a strong conviction that the claim of the ld. A.R that the A.O had exceeded his jurisdiction and rectified the aforesaid issues which were not free from debate and involved a long drawn process of reasoning is devoid and bereft of any substance and does not merit acceptance. The Ground of appeal No. 6 is dismissed. 12. We shall now deal with the claim of the ld. A.R that as the reassessment order passed by the A.O u/s 143(3) r.w.s 147, dated 23.03.2015 was thereafter quashed by the CIT(A) by treating the same as void ab initio, therefore, no rectification of the said non-existent order could have been carried out. We would not hesitate to observe that the aforesaid claim of the ld. A.R at the first blush appeared to be very convincing, but then, we are afraid the same having two facets cannot be accepted in toto. Admittedly, the reassessment order passed by the A.O u/s 143(3) r.w.s 147, dated 23.03.2015 was quashed by the CIT(A), vide his order dated 29.12.2017. We may herein observe that the reassessment order was quashed by the CIT(A) for invalid assumption of jurisdiction by the A.O u/s 147 of the Act and the addition u/s 68 of unexplained cash credit of Rs. 32,21,48,679/- was not commented upon by him on merits. At this stage, it would be relevant to point out that the aforesaid reassessment order was preceded by an original assessment that was framed by the A.O vide his order passed u/s 143(3) r.w.s 144C(1), dated 28.01.2014. 13. It is in the backdrop of the aforesaid facts that we shall deal with the grievance of the assessee that now when the order passed by the A.O u/s 143(3)

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 11 ITA No. 5844/Mum/2018 – A.Y 2009-10 r.w.s 147, dated 23.03.2015 had been quashed by the CIT(A), therefore, no rectification order w.r.t such reassessment order that had ceased to exist could have been passed. As observed by us hereinabove, the case of the assessee was reopened u/s 147 of the Act on the basis of the information received by the A.O from the Investigation wing of the department that the assessee during the year in question was in receipt of share premium of Rs. 32,21,48,679/-. Accordingly, the set-off of unabsorbed depreciation of Rs. 11,49,85,610/- that was allowed by the A.O vide his order passed under Sec. 143(3) r.w.s 144C(1), dated 28.01.2014, not being the issue on the basis of which the case of the assessee was reopened, therefore, cannot be held to have merged in the reassessment order. Our aforesaid view is fortified by the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Alagendran Finance Ltd. (2007) 293 ITR 1 (SC). In its aforesaid order, it was observed by the Hon‟ble Apex Court that in respect of an issue which was not a subject matter of reassessment, limitation under Sec. 263(2) would run from the date of original assessment as there was no question of application of doctrine of merger in such a case. Also, a similar view had been taken by the Hon’ble High Court of Bombay in the case of Ashoka Buildcom Ltd. vs. ACIT & Anr. (2010) 325 ITR 574 (Bom). We, thus, in the backdrop of the aforesaid settled position of law are of the considered view that though the reassessment order passed by the A.O u/s 143(3) r.w.s 147, dated 23.03.2015 was quashed by the CIT(A) vide his order dated 29.12.2017 by treating the same as void ab initio, however, the original assessment order passed under Sec. 143(3) r.w.s 144C(1), dated 28.01.2014 wherein the set-off of unabsorbed depreciation of Rs. 11,49,85,610/- was allowed by the A.O therein continued to subsist and did hold the ground. In other words, the issue pertaining to allowing of set-off of unabsorbed depreciation of Rs. 11,49,85,610/- by the A.O found its roots in the original assessment order passed by the A.O u/s 143(3) r.w.s 144C(1), dated 28.01.2014 and the same was not effaced pursuant to the quashing of the reassessment order passed by the A.O

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 12 ITA No. 5844/Mum/2018 – A.Y 2009-10 u/s 143(3) r.w.s 147, dated 23.03.2015. We, thus, are of the considered view that as the issue pertaining to allowing of set-off of unabsorbed depreciation of Rs. 11,49,85,610/- by him vide the assessment order passed u/s 143(3) r.w.s 144C(1), dated 28.01.2014 had not merged in the reassessment order, the A.O, thus, was well within his jurisdiction in rectifying the mistake as regards allowing of set-off of unabsorbed depreciation of Rs. 11,49,85,610/- vide his order passed under Sec. 143(3) r.w.s 144C(1), dated 28.01.2014 as the assessee had no unabsorbed depreciation left for set-off for A.Y 2008-09. Accordingly, we uphold the order passed by the A.O to the extent he had rectified his mistake as regards allowing of set-off of unabsorbed depreciation of Rs. 11,49,85,610/- vide his original assessment order passed u/s 143(3) r.w.s 144C(1), dated 28.01.2014. However, we may herein observe that the directions given by the CIT(A) to the A.O, viz. (i). to ascertain the assessee‟s claim of brought forward unabsorbed depreciation and allow set-off of the same as per law while computing the assessee‟s total income; and (ii). to give reasons in case if the assessee‟s claim for brought forward depreciation is not found to be admissible by him, are not being disturbed by us. The Grounds of appeal No(s). 1 to 4 to the extent relatable to the aforesaid issue in question are dismissed in terms of our aforesaid observations. 14. We shall now deal with the addition of the share premium of Rs. 32,21,48,679/- that was added by the A.O vide his order passed u/s 154, dated 16.09.2017 as an unexplained cash credit within the meaning of Sec. 68 to the assessee‟s income computed under the normal provisions of the Act. As observed by us hereinabove, original assessment was framed by the A.O vide his order passed under Sec. 143(3) r.w.s 144C(1), dated 28.01.2014. Subsequently, on the basis of information shared by the Investigation wing of the department with the A.O that the assessee company had during the year under consideration received share premium of Rs. 32,21,48,679/-, its case was

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 13 ITA No. 5844/Mum/2018 – A.Y 2009-10 reopened under Sec. 147 of the Act. In the absence of a plausible explanation as regards the nature and source of the share premium the same was treated by the A.O as an unexplained cash credit within the meaning of Sec. 68 of the Act. In sum and substance, the genesis of the addition of share premium of Rs. 32,21,48,679/- as an unexplained cash credit within the meaning of Sec. 68 was the reassessment order that was passed by the A.O under Sec. 143(3) r.w.s 147, dated 23.03.2015. As is discernible from the records, the reassessment order passed by the A.O u/s 143(3) r.w.s 147, dated 23.03.2015 was quashed by the CIT(A), vide his order dated 29.12.2017 on the ground of invalid assumption of jurisdiction by the A.O for reopening the assessee‟s case under Sec. 147 of the Act. Accordingly, on the date on which the A.O had passed the rectification order u/s 154, dated 16.09.2017 the reassessment order passed by the A.O u/s 143(3) r.w.s 147, dated 23.03.2015 was in existence and did hold the ground. However, as the reassessment order passed by the A.O under Sec. 143(3) r.w.s 147, dated 23.03.2015 pursuant to the order passed by the CIT(A), dated 29.12.2017 was quashed and thus effaced, therefore, in our considered view the rectification order passed by the A.O u/s 154, dated 16.09.2017 subsequent to such quashing of the reassessment order by the CIT(A), to the extent germane to the addition of share premium of Rs. 32,21,48,679/- as an unexplained cash credit under Sec.68 to the assessee‟s income under the normal provisions of the Act could not have survived on a standalone basis. To sum up, now when the reassessment order on the basis of which the share premium of Rs. 32,21,48,679/- was treated by the A.O for the very first time as an unexplained cash credit within the meaning of Sec. 68 of the Act was quashed by the CIT(A) vide his order dated 29.12.2017, thus, the order of rectification passed u/s 154, dated 16.09.2017 to the extent relatable to the aforesaid issue in question, as a corollary thereto, could not have subsequent to quashing of such reassessment order survived and have an existence on a standalone basis. At this juncture, we may herein observe that if the rectification in question i.e addition of the share

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 14 ITA No. 5844/Mum/2018 – A.Y 2009-10 premium that was treated as an unexplained cash credit by the A.O u/s 68 vide his reassessment order passed under Sec. 143(3) r.w.s 147, dated 23.03.2015 to the income of the assessee determined under the normal provisions is sustained, then, the same would result to supplementing the original assessment order that was passed by him u/s 143(3) r.w.s 144C(1) with an addition that was never made by the A.O, which we are afraid is absolutely not as per the mandate of law. In other words, if the rectification order passed by the A.O u/s 154, dated 16.09.2017 qua the addition of share premium of Rs. 32,21,48,679/- to the income of the assessee determined under the normal provisions is sustained, then, it would result to a blatant traversing or in fact invalid assumption of jurisdiction on the part of the A.O resulting to an enhancement of the assessment originally framed by him vide his order passed u/s 143(3) r.w.s 144C(1), dated 28.01.2014, which we are afraid is not in conformity with the express provisions of law. We, thus, in terms of our aforesaid deliberations are of the considered view that the rectification order passed by the A.O u/s 154, dated 16.09.2017 qua the addition u/s 68 of the share premium of Rs. 32,21,48,679/- to the income of the assessee determined under the normal provisions cannot be sustained and is liable to be vacated. Before parting, we may herein observe, that if the order passed by the CIT(A), dated 29.12.2017 quashing the reassessment order passed by the A.O under Sec. 143(3) r.w.s 147, dated 23.03.2015 is at any stage reversed on an appeal by the revenue, then, the addition made by the A.O qua the addition of the share premium of Rs. 32,21,48,679/- as an unexplained cash credit u/s 68 to the income of the assessee determined under the normal provisions of the Act, vide his order passed u/s 154, dated 16.09.2017 shall stand restored. The Grounds of appeal No(s). 1 to 4 to the extent relatable to the aforesaid issue in question and Ground of appeal No. 5 are allowed in terms of our aforesaid observations.

Intelenet Global Services Pvt. Ltd. Vs. CIT 12(2), Mumbai 15 ITA No. 5844/Mum/2018 – A.Y 2009-10 15. The Grounds of appeal No(s). 7 and 8 being general are dismissed as not pressed. 16. The appeal of the assessee is partly allowed in terms of our aforesaid observations.

Order pronounced in the open court on 24.05.2021

Sd/- Sd/- (M. Balaganesh) (Ravish Sood) ACCOUNTANT MEMBER JUDICIAL MEMBER Place : Mumbai Date: 24.05.2021 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, //True Copy// (Sr. Private Secretary) ITAT, Mumbai.