1. As these appeals of revenue involve common grounds, these were heard together and are being disposed of by this composite order for the sake of convenience.
2. We are taking up ITA Nos. 1965 to 1968 /Ahd./1987 for assessment years 1973-74 to 1976-77 for disposal at the first instance. The common ground of these appeals reads as under:- The learned CIT (Appeals) has erred in law and on facts in cancelling the reassessment orders passed by the IAC (A).
3. Relevant facts giving rise to these appeals are that assessee-company is said to be an industrial company engaged in the business of publishing newspapers and magazines. The assessee-company had been claiming that it was a company in which public are substantially interested and was being assessed as such by the department for so many years. During the course of assessment proceedings for assessment year 1982-83 the Assessing Officer (hereinafter referred to as the AO) found that more than 50 per cent shares of the assessee-company were held by the family of Shri Shantilal A. Shah and his two sons and control over the affairs of the company was with less than five persons of that family. These facts came on record from the enquiries made by the Assessing Officer who recorded the statement of Ratilal Khushaldas, one of the directors of the assessee-company who stated that the company was managed by Shantilal A. Shah, his daughter-in-law, Smt. Smrutiben and Bahubah Shah, his son. Not only this, Shantilal A. Shah vide letter dated 30-5-1985 admitted to have control over the management of the assessee-company and even prayed vide letter dated 13-8-1985 that matter be referred to the Settlement Commission. Further said Shantilal A. Shah vide letter dated 17-10-1985 agreed that company may be treated as closely-held company for assessment year 1982-83. The Assessing Officer on the basis of above referred to materials had reasons to believe that assessee had omitted/ failed to furnish details relevant for Section 2(18) of the Act and it has resulted into the assessment at lower rate of tax for assessment years 1969-70 to 1981 -82 and accordingly notice under Section 147(a) read with Section 148 of the IT Act, 1961 (hereinafter referred to as the Act) was issued for reopening of the assessment relating to assessment years 1969-70 to 1976-77 after obtaining the due approval from CBDT. This notice dated 25-2-1986 was served upon the assessee. The notice under Section 147(a) read with Section 148 for assessment years 1977-78 to 1980-81 after obtaining the necessary approval from CIT, Gujarat-I, Ahmedabad was issued on 27-1-1986 which was served on the assessee-company on 31-1-1986. For assessment year 1981-82 the notice for reopening was issued on 27-1-1986 and was served upon the assessee. Undisputedly the assessee-company filed return of income in response to notice under Section 148 for all the assessment years 1969-70 to 1980-81 on 30-3-1986.
4. During the reassessment proceedings it was observed by Assessing Officer that assessee company had shown its status in returns of income as that of a closely-held company for assessment years 1969-70 to 1981-82 and accordingly Assessing Officer passed common order for all these assessment years 1969-70 to 1981-82 at the same total income as was computed in the original assessment but the said income was to be treated income belonging to closely-held company as well as subject to all the taxes payable as such. However, the assessee preferred appeals before CIT (Appeals) and the assessment order(s) were challenged on legal as well as factual grounds. The first plea from the assessee-company was that Assessing Officer based his orders on the so-called admission allegedly made by Directors in the correspondence and returns of income. The contents of each of the letter dated 30-9-1985,17-10-1985 and 9-12-1985 were explained by the assessee separately with the very purposes that those admissions were relating to assessment year 1982-83 and Assessing Officer was not justified in using the same for assessment years 1969-70 to 1981-82. The next plea was that the very notice issued under Section 147 (a) read with Section 148 was invalid as the same was hit by the provisions of Section 149(1)(a)(ii) of the Act as alleged escaped income was not Rs. 50,000 or more in any of the assessment years. On merit also it was contended that Assessing Officer has not brought anything on record to prove that assessee-company was closely-held company in assessment years 1969-70 to 1981-82. The learned CIT (Appeals) after considering all the facts, dealt with the legal plea raised before him and concluded that primary condition laid under Section 149(1)(a)(ii) of the Act was not satisfied as in none of the assessments for assessment years 1969-70 to 1976-77 the escaped income was of Rs. 50,000 or more and after placing reliance on the case law concluded that notice under Section 148 of the Act is invalid and further admissions of the assessee were treated as without substance in view of the decisions of Hon'ble Jurisdictional High Court in the case of P. V. Doshi v. CIT [1978] 113 ITR 22 (Guj.) and other cases of Hon'ble Supreme Court. Accordingly, he allowed ail the appeals for assessment years 1969-70 to 1976-77.
5. Against this consolidated order of Id. CIT (Appeals) dated 27-3-1987 relating to assessment years 1969-70 to 1976-77 only four appeals relating to assessment years 1973-74 to 1976-77 have been filed before us and nothing has come on record as to what happened to the order of Id. CIT (Appeals) relating to assessment years 1969-70 to 1972-73.
6. The learned D.R. placing reliance on the order(s) of Assessing Officer has also filed written submissions in which the same facts have been reiterated which have come in the assessment orders. Reliance has been placed on the letters dated 30-9-1985, 17-10-1985 and 9-12-1985 from assessee in which admissions were there to the effect that control over the management of the assessee-company was admitted to be that of Shantilal A. Shah, that matter was sought to be referred to Settlement Commission and assessee agreed that it was a closely-held company for assessment year 1982-83 and there was no objection to the reopening past assessments. On the basis of these correspondence it was contended by the Id. D.R. what more was required for Assessing Officer to proceed in framing the assessment order(s) of earlier years when assessee itself admitted that it had not objection to the reopening of past assessment and to the status that assessee-company was a closely-held company. In this connection reference to the case of Mahendra Kumar Agrawalla v. ITO [1976] 103 ITR 688 was made in which their Lordships of Patna High Court allegedly observed that assessee cannot challenge any order in appeal where the notice of reopening of the assessment was acted upon by the assessee even though the said notice was invalidly served. It was submitted by the Id. D.R. that in the case in hand notice under Section 148 was duly served and acted upon by the assessee as much as it filed returns in pursuance to notice under Section 148 of the Act and agreed to pay taxes due treating the assessee a closely-held company.
7. The next point agitated by the learned D.R. is that approach of the Id. CIT (Appeals) by invoking the provisions of Section 149(1)(a)(ii) to treat the notice as invalid was not justified in view of the fact that provisions of Section 147 are self-explanatory as Explanation 1(b) provides that where such income has been assessed at too low a rate that shall also be treated where income chargeable to tax has escaped assessment. The learned D.R. by way of example has tried to give out the difference that no doubt Rs. 50,000 or more was not involved as per the provisions of Section 149(1)(a)(ii) but the facts remain that if the income has been assessed at low rate the difference in the amount of tax payable may be quite substantive though approximately income chargeable to tax escaped assessment may not be Rs. 50,000 or more. In the end the Id. D.R. has placed reliance on decision of the Tribunal Ahmedabad Bench 'B' in the case of ITO v. Saurashtra Cement & Chemical Industries Ltd. [1986] 18 ITD 414 in which the facts were alike and the Bench concluded that expression "escaped assessment" as defined in Explanation 1 to Section 147 of the Act, has to be given the same meaning while construing the provisions of Sections 148 to 151 of the Act as aforesaid. Giving out the scheme of the Act for reassessment it was pointed out that Section 147 deals with the nature of income which may amounts to escaped assessment and Section 148 deals with the issue of notice for the purpose of assessment, reassessment or recomputation while Section 149 lays down time limit for the issue of notice, Section 151 deals with the sanction of CBDT and CIT for issue of notice, Bench held that these sections, therefore, form part of the scheme of reassessment and the expression "escaped assessment" should be used as defined in Explanation 1 to Section 147 of the Act and that will include income assessed at too low a rate. The Tribunal accordingly disapproved the action of Id. CIT (Appeals) for treating the reassessment as unwarranted because in that case CIT (Appeals) held that there was no escapement of income exceeding Rs. 50,000 and as such, action could not the taken under the provisions of Section 149(1)(a)(zt) and Section 147(z). The Id. D.R. on the basis of this case law challenged the correctness of the order of Id. CIT (Appeals) before us in which he has held the order of ITO of reopening the assessment as invalid on account of non-fulfilment of mandatory conditions stated under Section 149(1)(a)() as in this case the income is assessed at low rate and it is to be treated as "escaped assessment" in view of Section 147(a) Explanation (!)(&) of the Act.
8. The Id. D.R. also relied upon the decision of Punjab and Haryana High Court in the case of Oriental Carpet Mfg. (India) Ltd. v. ITO [1987] 168 ITR 296, the case of K.T. Ahammed Kutty Haji & Bros. v.Agrl. ITO [1979] 117 ITR 209 (Ker.) and that of Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 688 (SC).
9. As against it, the learned counsel for assessee has relied upon the order of Id. CIT (Appeals) and filed written submissions also. The first plea from the side of learned counsel for assessee is that in this case there was lack of jurisdiction for reopening the assessment as in view of the provisions of Section 149(1)(a)(ii), the income chargeable to tax which allegedly has escaped assessment was not Rs. 50,000 or more which is condition precedent and if that was not a case.
Assessing Officer was not justified in initiating the reopening proceedings. It was further contended that provisions of Section 147 to Section 151 deal also with the jurisdictions of Assessing Officer so far as reassessment proceedings are concerned and those jurisdictional clauses are to be treated as mandatory because they go to the root of the matter and if any of the condition remains unfulfilled, the very jurisdiction goes. It was contended further that Hon'ble Gujarat High Court in the case of P.V. Doshi (supra) has dealt this very issue that conditions laid down in the provisions of Sections 147 to 149" are mandatory and the same cannot be waived, acquiesced nor principle of estoppel can be invoked. Meeting the arguments of the Id. D.R. that assessee itself has admitted before Assessing Officer that assessee-company was to the treated as closely-held company instead of widely-held company and further raising no objection for reopening of the assessment from assessment year 1969-70 onwards, the learned counsel for assessee pointed out that the judgment of the case of P. V.Doshi(supra) is reply to the same as even consent given by the assessee for reopening of the assessment will not confer jurisdiction on the Assessing Officer if there was initially lack of jurisdiction on account of some provisions of law. He was referring to the provisions of Section 149(1)(a)(ii) in which income chargeable to tax which has escaped assessment should be Rs. 50,000 and according to him in the case in hand undisputedly the assessee had been assessed on the same income as it was assessed in the original assessments relating to assessment years 1969-70 onwards. He further pointed out that view of the IT AT Ahmedabad Bench in the case of Saurashtra Cement & Chemical Industries Ltd. (supra) relied upon by the Id. D.R. was not based on correct interpretation of the provisions of Act. Referring to para 6.3 of the Order, the learned counsel pointed out that the Tribunal has treated the provisions of Sections 147, 149 and 151 as machinery sections which is contradictory to the view of Jurisdictional High Court in the case of P. V. Doshi (supra) in which provisions contained in this section as well as Section 149 of the Act were held to be concerning to the very jurisdiction and were treated as mandatory. He further pointed out that in the case of assessee, department has itself conceded to this legal position that is why out of 8 years involved in the order of CIT (Appeals), four appeals relating to assessment years 1973-74 to 1976-77 alone have been filed and there is no appeal for assessment years 1969-70 to 1972-73.
10. After considering the submissions adduced by the learned representatives of the parties and going through the material on record, the facts which are not in dispute may be summed up. The assessee-company was being assessed as a company in which public were substantially interested as claimed. However, in assessment year 1982-83 when assessment proceedings were in progress, the Assessing Officer questioned the status of assessee and in the correspondence which took place between the Assessing Officer and the assessee, the assessee admitted that it may be treated as closely-held company. The Assessing Officer issued notice under Section 147(a) read with Section 148 of the Act for assessment years 1969-70 to 1976-77 after obtaining due approval from CBDT and another notice for assessment years 1977-78 to 1980-81 after approval of CIT, Gujarat-I, Ahmedabad and for assessment year 1981-82, from his own side.
11. The first plea from the side of assessee is that action of reopening proceedings is unwarranted as issuance of notice is against the provisions of Section 149(1)(a)(ii). Before dealing with these specific provisions, it will be in the fitness of things to give out the relevant provisions of Sections 147, 148, 149 & 151 of the Act, with which we are concerned and the same deal with the reassessment proceedings. Section as it was existing in the years under consideration reads as follows:- (a) the ITO has reason to believe that, by reason of omission or failure on the part of an assessee to make a return under Section 139 for any assessment year to the ITO or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or (b) notwithstanding that there has been no omission or failure as mentioned in Clause (a) on the part of the assessee, the ITO has in consequence of information in his possession reason to believe that 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 or recompute the loss or depreciation allowance, as the case may be, for the assessment year.
Explanation 1: For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely :- (c) where such income has been made the subject of excessive relief under this Act or under the Indian Income-tax Act, 1922 (1 of 1922); or (d) where excessive loss or depreciation allowance has been computed.
After that provisions of Section 148 relate to issuance of notice and what is expected from the Assessing Officer before issue of notice and for its issuance reads as follows :- 148. Issue of notice where income has escaped assessment :- (1) Before making the assessment, reassessment or recomputation under Section 147 the ITO shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under Sub-section (2) of Section 139; and on the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section.
(2) The ITO shall, before issuing any notice under this section, record his reasons for doing so.
The provisions with which we are concerned in the case in hand and which lay down bar for issuance of notice under Section 148 of the Act is Section 149(1) and that reads as under:- (i) for the relevant assessment year, if eight years have elapsed from the end of that year, unless the case falls under Sub-clause (ii); (ii) for the relevant assessment year, where eight years but not more than sixteen years have elapsed from the end of that year, unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to rupees fifty thousand or more for that year.
(b) in cases falling under Clause (b) of Section 147 at any time after the expiry of four years from the end of the relevant assessment year.
The contention of the assessee before CIT (Appeals) and before us is that unless the income chargeable to tax which has escaped assessment amounts to Rs. 50,000 or more, no notice under Section 148 shall be issued in the cases falling under Clause (a) of Section 147 beyond 8 years. The contention is that these provisions are creating a mandatory fetter on the jurisdiction of Assessing Officer and the Legislature was wise enough to impose such fetter and if escaped income chargeable to tax is in any way not as prescribed in the said section then jurisdiction of Assessing Officer goes away.
12. The first plea from the side of revenue is that legal questions relating to validity of notice or lack of jurisdiction cannot be raised at this stage as assessee before Assessing Officer has submitted itself to the jurisdiction of Assessing Officer by filing the return of income in pursuance of the notice under Section 147(a) read with Section 148 and in those returns of income the assessee has shown itself to be closely-held company and even in correspondence took place between the Assessing Officer and assessee and it was admitted by the assessee that it has no objection for reopening of earlier assessment(s) and paying the taxes according to law.
13. The pleas raised from the side of revenue and the contention of learned counsel for assessee are entirely covered in the decision of Jurisdictional High Court in the case of P. V Doshi (supra). Briefly stated the facts of that case were that in original assessment relating to assessment year 1960-61, the assessment was completed on 2-12-1961 and in assessment year 1961-62 the ITO noticed that assessee had sold gold worth Rs. 19,421. He issued notice on 3-9-1963 for reassessment and assessee filed return of income on 3-10-1963. During assessment proceedings assessee took the plea that notice of reassessment was not valid and also relied upon the affidavit of one person so far as merit was concerned. The ITO framed the assessment order against which appeal came before AAC but contention about the validity of notice was given up and on merits the AAC dismissed the appeal against which the matter came up before the Tribunal and the Tribunal remanded the matter for limited purposes that the department shall give an opportunity to cross-examine the person who filed affidavit in the reassessment proceedings and relied by assessee. In the second inning the assessee raised legal plea of validity of the proceedings along with question of merit. The AAC did find force in the legal plea and concluded that ITO was not justified in reopening the assessment under Section 147 of the Act as he did not record any reason. The Tribunal reversed the view.
According to the Tribunal, the legal question no doubt was going to the root of the jurisdiction but the same was given up by assessee in the first inning before AAC as well as before Tribunal and that matter became final as Tribunal remanded the matter for limited purposes.
Their Lordships discussed the law on the point.
14. Their Lordships referred to the decision of Gujarat High Court in the case of Kasturbhai Lalbhai v. R.K. Malhotra, ITO [1971] 80 ITR 188 in which implications of provisions of Section 147 of the Act were referred to by observing that ITO was empowered under that section to disturb the finality of the assessment already made and to assess or reassess the income of assessee and that action of ITO was bound to result in considerable anxiety and harassment to the assessee that is why the Legislature has imposed certain conditions subject to which alone the ITO can reopen the assessment. Their Lordships further observed that Legislature has imposed certain fetters on the jurisdiction of the authority reopening the proceedings and those fetters are contained in Sections 147 and 148 read with Section 151.
The validity of notice was treated as one of the fundamental conditions attached to the jurisdiction of ITO by Hon'ble Supreme Court in the case of CIT v. Kurban Hussain Ibrahimji Mithiborwala [1971]82 ITR 821.
In support of waiver of such mandatory provisions contained in Sections 147 to 151 of the Act their Lordships laid down that there could be no waiver relating to fetters attached with jurisdiction of an authority for the simple reason that in such cases, jurisdiction could not be conferred on the authority by mere consent without conditions precedent for the exercise of jurisdiction being fulfilled. In other words it was held that provisions which confer jurisdiction for assessment and reassessment would never be waived nor created by consent.
15. If we apply the above ratio of their Lordships to the facts in hand then if assessee makes an admission, submitting itself to the jurisdiction of an authority which otherwise lacks then such conferring of jurisdiction is unwarranted nor objection to the lack of jurisdiction can be treated as stood waived by mere submissions of the assessee. The result shall be that plea of the Id. D.R. that assessee has complied with the notice issued under Section 147(a) read with Section 148 by filing of returns of income showing status as closely-held company and consented to reopening the earlier assessments and to pay due taxes on the returns, became forceless in view of the decision of Hon'ble Jurisdictional High Court as if otherwise the jurisdiction is lacking then these acts of the assessee merely will not be sufficient to confer the jurisdiction on the authority.
16. Coming to the other aspect of the matter relating to the merits of legal plea raised by the assessee before CIT (Appeals) and before us about the jurisdiction of the Assessing Officer for reopening the assessment relating to assessment years 1969-70 to 1976-77 which were relating to the period of 8 years to 16 years from the last date of assessment year in which proceedings for reassessments were started, we have to find out as to whether requirements of Section 149(1)(a)(ii) are fulfilled in the case in hand or not.
17. It is an undisputed fact that even in reassessment proceedings the assessee has been assessed on the same taxable income at which it was assessed in the earlier years. The only difference is that of rate. The contention of the learned D.R. is that no doubt income chargeable to tax which escaped assessment is not Rs. 50,000 but in this case the difference in the payment of tax will be quite substantial and the words "escaped assessment" should not be read merely connected word to Rs. 50,000 as has been used in Section 149(1)(a)(zi) but in conjunction with explanation attached to Section 147(a), Explanation (I) of the Act in which words "escaped assessment" has been defined. Reference to the decision of the Tribunal is also made.
17a. This contention of the learned D.R. is not well founded because the provisions of Section 149(1)(a)(ii) are to be construed strictly and to be treated as mandatory as per the view of the jurisdictional High Court in the case of P. V. Doshi (supra). If it is so then the words used in Section 149(1)(a)(ii) are "the income chargeable to tax which has escaped assessment amounts to or is levied to amounts of Rs. 50,000 or more." Here we may point out that words "income" is used and that too which is chargeable to tax and for limit it should be not less than Rs. 50,000. If the words are construed in the spirit used in this provision then income alone and not tax payable, should be Rs. 50,000 or more which escaped assessment and in case escapement of tax would have been made one of the basis for proceedings in such type of cases the Legislature could have added those words also. Here the important aspect to be kept in mind is that provisions of Section 149 deals with the time limit in which reopening can be permitted and is certainly subject to provisions of Section 151 as is required under Section 149(2). Section 149(1)(a)() deals with those periods where 8 years but not more than 16 years have elapsed from the end of that assessment year in which reopening is proposed. It means that more than 8 years have already passed to the assessment year which is being sought to be reopened and in such cases naturally the assessee has to undergo mental agony and put to hardships in case his assessment order is going to be disturbed. It is due to this, the Legislature imposed stringent condition that income chargeable to tax which has escaped assessment should be not less than Rs. 50,000. In other words petty matters should not be reopened to cause harassment to assessee but the fact remains that the Legislature has not laid down any criteria for amount of tax payable but criteria is that of income chargeable to tax in reopening of assessment for more than 8 years to 16 years. If we apply this criteria then naturally the income remained unchanged in reopening of all those assessments and thus no justification for reopening of those assessments because the same were strictly prohibited by the provisions of Section 149(1)(a)(ii). Further, if there was no jurisdiction then no notice should be issued as prohibited under Section 149(1). If notice is issued, it will be invalid.
18. On the basis of what has been discussed above, the cumulative effect shall be that on the basis of facts of the case of assessee relating to assessment years 1969-70 to 1976-77, the escaped income chargeable to tax was not of Rs. 50,000 or more as is required under Section 149(1)(a)(ii) and Assessing Officer was not having jurisdiction to proceed with the matter. The necessary consequence shall be that no notice under Section 147(1) read with Section 148 could be issued and if such notice was issued then it is to be treated as invalid. The proceedings based on the issuance of invalid notice, shall be treated invalid and reassessment order framed, shall have to be held as invalid. We are of the definite conclusion that Id. CIT (Appeals) correctly decided the said issue in favour of the assessee on the basis of above legal position which is getting support from the decision of Jurisdictional High Court as well as from other case laws. We do not find any force in this common ground of four appeals of revenue and they are dismissed.
19. The remaining five appeals of the revenue are ITA Nos. 2062 to 2066/ Ahd./87 for assessment years 1977-78 to 1981-82 involving the common grounds which are as under:- 1(a) The Id. CIT (Appeals) has erred in law and on facts in directing the IAC (Appeals) to treat the assessee as being a company in which the public are substantially interested.
1(b) The Id. CIT (Appeals) further erred in allowing the assessee's claim of status as a company in which the public are substantially interested ignoring the fact that the return of income was filed showing the status as a Private Ltd. Co. and it was never claimed otherwise before the IAC (Appeals) -1.
1(c) The Id. CIT (Appeals) acted in contravention of Rule-46A of the IT Rules, 1962 by entertaining fresh evidence about details of shares holdings of the group controlling the affairs of the company.
He should have given an opportunity to the IAC (Appeals) to examine such fresh evidence.
1(d) The Id. CIT (Appeals) erred in holding that the affairs of the company were controlled by more than five persons, disregarding the fact that the shares carrying more than fifty one percent of its total voting power were held by five or less persons.
The facts are alike as to earlier appeals, as Assessing Officer has assessed the assessee for assessment years 1977-78 to 1981-82, as in the earlier assessment years 1969-70 to 1976-77 on the basis of alleged admission of assessee in appeal, the assessee took the same legal pleas as were taken by assessee in relation to assessment year 1969-70 to assessment year 1976-77 about invalidity of notice and proceedings but those pleas were decided against the assessee by CIT (Appeals)- V, Ahmedabad, vide his consolidated order dated 13-4-1986. However, as assessee also challenged the reassessment on merit, the Id. CIT (Appeals) entertained the evidence of the assessee relating to its contention about its status as industrial company and about shares holding position for assessment years 1977-78 to 1981-82 and also the evidence relating to constitution of Board of Directors of the company for each assessment year and after examining these newly admitted evidence concluded that the assessee-company was a company in which public were substantially interested for these five years. The revenue has come in appeals.
20. Coming to the facts as have come on record, it is apparent from the assessment orders relating to assessment year 1977-78 to assessment year 1981-82 that assessee did not contest the status rather admitted that it has no objection to reopening of reassessment and even expressed its desire to pay the taxes due if that assessee is treated as closely-held company. However, the assessee took somersault before CIT (Appeals) in appeals where the assessee raised not only legal plea but filed documentary evidence also. In view of all these, the Id. D.R.contended that as the evidence in support of legal pleas as well as factual position was filed before the CIT (Appeals) by assessee, the Assessing Officer was not having any opportunity to examine the said evidence nor CIT (Appeals) gave opportunity to the Assessing Officer to go through the same and to submit his comments. Accordingly, the Id.
D.R. requested that the matter may be restored back to the Assessing Officer who can examine the evidence relating to share holding position of different shareholders in each of the assessment year as well as position of Board of Directors etc. The learned counsel for the assessee has also mentioned that he has no objection in restoring the matter back, as admittedly the evidence being relied upon by the assessee for determining its status was filed by it for the first time before CIT (Appeals).
21. In view of the above position, we are restoring the matter to Assessing Officer for deciding the status of the assessee as "closely held company" or "widely-held company" in view of the evidence and pleas raised before the Id. CIT (Appeals) and the Assessing Officer will decide the matter after providing an opportunity to the assessee.
However, it is made clear that validity of the reopening proceedings were not involved in these years as in the assessment years 1969-70 to 1976-77 that is why assessee has not challenged the order of CIT (Appeals) on this point by filing cross-appeals and the matter reached at finality.
22. The result is that the ITA Nos. 1965 to 1968/Ahd./87 of revenue are dismissed and the ITA Nos. 2062 to 2066/Ahd./87 are allowed for statistical purposes.