KAMALA BROTHERS, MUMBAI V. ITO 24(2)(1), MUMBAI

ITA 1139/MUM/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4381 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 02-12-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 07-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI D R KAMALA BROTHERS
• Keywords: Sale consideration of property below Jantri Value; Charitable institution; Cost of acquisition; Sham transactions
• Section: 143(3); 50C

Judgement Text

, , I, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI , , , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.1139/MUM/2011 ASSESSMENT YEAR: 2003-04 KAMALA BROTHERS , KUBER CHAMBER, CTS 141-A, NEXT TO COD, DUTT MANDIR ROAD, MALAD (E) MUMBAI -400097 / VS. ITO 24 ( 2 )( 1 ) C-13 BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI (ASSESSEE ) (RE VENUE) P.A. NO. AAAFK0111D ITA NO.1334/MUM/2011 ASSESSMENT YEAR: 2003-04 ITO 24(2)(1) C-13 BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI / VS. KAMALA BROTHERS, KUBER CHAMBER, CTS 141- A, NEXT TO COD, DUTT MANDIR ROAD, MALAD (E) MUMBAI -400097 (REVENUE) (RESPONDENT) P.A. NO. AAAFK0111D C.O. NO.180/MUM/2013 (ARISING OUT OF ITA NO.1334/MUM/2011) ASSESSMENT YEAR: 2003-04 KAMALA BROTHERS 2 KAMALA BROTHERS, KUBER CHAMBER, CTS 141-A, NEXT TO COD, DUTT MANDIR ROAD, MALAD (E) MUMBAI -400097 / VS. ITO 24(2)(1) C-13 BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI (REVENUE ) (RESPONDENT) P.A. NO. AAAFK0111D ITA NO.1140/MUM/2011 ASSESSMENT YEAR: 2006-07 KAMALA BROTHERS, KUBER CHAMBER, CTS 141-A, NEXT TO COD, DUTT MANDIR ROAD, MALAD (E) MUMBAI -400097 / VS. ACIT RG 24(2) C-13 BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI (ASSESSEE ) (REVENUE) P.A. NO. AAAFK0111D ITA NO.1335/MUM/2011 ASSESSMENT YEAR: 2006-07 ACIT RG 24(2) R.NO.606 6 TH FLOOR, BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI-400051 / VS. KAMALA BROTHERS, KUBER CHAMBER, CTS 141- A, NEXT TO COD, DUTT MANDIR ROAD, MALAD (E) MUMBAI -400097 (REVENUE) (RESPONDENT) P.A. NO. AAAFK0111D C.O. NO.181/MUM/2013 (ARISING OUT OF ITA NO.1335/MUM/2011) ASSESSMENT YEAR: 2006-07 KAMALA BROTHERS, KUBER CHAMBER, CTS 141-A, NEXT TO COD, DUTT MANDIR ROAD, MALAD (E) MUMBAI -400097 / VS. ITO 24(2)(1) C-13 BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI KAMALA BROTHERS 3 (REVENUE ) (RESPONDENT) P.A. NO. AAAFK0 111D ITA NO.1160/MUM/2011 ASSESSMENT YEAR: 2007-08 KAMALA BROTHERS, KUBER CHAMBER, CTS 141-A, NEXT TO COD, DUTT MANDIR ROAD, MALAD (E) MUMBAI -400097 / VS. ITO 24(2)(1) C-13 BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI (ASSESSEE ) (REVENUE) P.A. N O. AAAFK0111D ITA NO.1336/MUM/2011 ASSESSMENT YEAR: 2007-08 ITO 24(2)(1) C-13 BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI / VS. KAMALA BROTHERS, KUBER CHAMBER, CTS 141- A, NEXT TO COD, DUTT MANDIR ROAD, MALAD (E) MUMBAI -400097 (REVENUE) (RESPONDEN T) P.A. NO. AAAFK0111D C.O. NO.182/MUM/2013 (ARISING OUT OF ITA NO.1336/MUM/2011) ASSESSMENT YEAR: 2006-07 KAMALA BROTHERS, KUBER CHAMBER, CTS 141-A, NEXT TO COD, DUTT MANDIR ROAD, MALAD (E) MUMBAI -400097 / VS. ITO 24(2)(1) C-13 BANDRA KURLA COMPLEX, BANDRA(E) MUMBAI APPELLANT BY DR. K. SHIVRAM SHRI DEVANG SHAH MRS. NEELAM JADHAV (AR) REVENUE BY SHRI B. YADAGIRI ( D R) KAMALA BROTHERS 4 / DATE OF HEARING : 02/12/2015 / DATE OF ORDER: 8/01/2016 / O R D E R PER BENCH: THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AND REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF IN COME TAX (APPEALS), MUMBAI {(IN SHORT CIT(A)}, FOR THE ASS ESSMENT YEARS 2003-04, 2006-07 AND 2007-08 DECIDED AGAINST THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER (I N SHORT AO) U/S 143(3) OF THE ACT. 2. DURING THE COURSE OF HEARING, ARGUMENTS WERE MADE BY SHRI DR. K. SHIVRAM, SHRI DEVANG SHAH & MRS. NEELAM JADH AV, AUTHORISED REPRESENTATIVE (AR) ON BEHALF OF THE ASS ESSEE AND BY SHRI B. YADAGIRI, DEPARTMENTAL REPRESENTATIVE (D R) ON BEHALF OF THE REVENUE. FIRST WE TAKE UP ITA NO.1139/MUM/2011 FOR A.Y. 2003 - 04. 3.GROUND NO.1: IN THIS GROUND THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN HOLDING THAT LEASE OF I MMOVABLE PROPERTY WAS GOVERNED BY SECTION 2(47) OF THE ACT A ND IN KAMALA BROTHERS 5 HOLDING THAT SEC.50C WOULD BE APPLICABLE ON THE TRA NSACTIONS OF LEASE DONE BY THE ASSESSEE. 3.1. DURING THE COURSE OF HEARING LD. COUNSEL HAS STATE D THAT ON THIS ISSUE THE ASSESSEE IS SATISFIED WITH THE DE CISION OF HONBLE LD. CIT(A). THUS, WITHOUT GOING INTO THE CO NTROVERSY THAT WHETHER A LEASE TRANSACTIONS WOULD BE COVERED U/S 50C, THIS GROUND IS DISMISSED. 4. GROUND NO.2: IN THIS GROUND THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN CONFIRMING THE ESTIMATE MADE BY THE AO OF LEASE RENT AT RS.13,74,353/- AS AGAINST THE A CTUAL AMOUNT RECEIVED BY THE ASSESSEE. 4.1. THE BRIEF FACTS ARE THAT THE ASSESSEE IS PARTNERSH IP FIRM WHICH WAS FORMED FOR THE PURPOSE OF DEVELOPING AND CONSTRUCTING THE BUILDING AT MALAD, MUMBAI. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE FIRM HAD SHOWN LE ASE RENT FROM THE SHRADHA GYANPEETH TRUST FOR CONSIDERATION OF RS.251/- AND 125/- FOR THE PORTION OF LAND GIVEN ON LEASE TO THE SEND ENTITY BEARING NO. 141B AND 141C RESPECTIV ELY, IN PURSUANCE TO THE LEASE DEED DATED 18.10.2002 ENTERE D WITH THE SAID ENTITY FOR A PERIOD OF 99 YEARS. THE SAID TRANSACTION WAS TREATED AS TRANSFER COVERED U/S 2(47) BY THE AO. THE AO ALSO ESTIMATED THE LEASE RENT RECEIVED BY THE ASSES SEE. 4.2. THE ASSESSEE CHALLENGED ALL THE ACTIONS OF AO BEFO RE LD. CIT(A). IT WAS INTER ALIA HELD BY LD. CIT(A) THAT V ALUE OF KAMALA BROTHERS 6 CONSIDERATION WAS TO BE TAKEN AS THE VALUE AS WAS A DOPTED BY THE STAMP VALUATION OFFICER. HOWEVER, LD. CIT(A) AL SO ESTIMATED THE LEASE RENT ON THE BASIS OF FAIR MARKE T VALUE IN SUBSTITUTION OF THE LEASE RENT ACTUALLY RECEIVED BY THE ASSESSEE. 4.3. BEING AGGRIEVED, THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL CHALLENGING THE ORDER OF LD. CIT(A). 4.4. DURING THE COURSE OF HEARING, IT HAS BEEN ARGUED B Y THE LD. COUNSEL THAT ONCE IT HAS BEEN ACCEPTED BY THE L D. CIT(A) THAT STAMP VALUE ASSESSED BY STAMP VALUATION OFFICE R WAS TO BE ADOPTED AS FULL VALUE OF CONSIDERATION ON DEEMED BASIS, AS PER LAW, AS THERE WAS NO SCOPE OF SUBSTITUTION OF A NY OTHER ESTIMATED VALUE UNDER THE LAW. IT WAS ALSO SUBMITTE D THAT EVEN OTHERWISE, IMPUGNED LAND WAS RESERVED FOR THE SCHOO L BUILDING AND THEREFORE THE LEASE RENTALS COULD NOT HAVE BEEN PRESUMED ON THE BASIS OF MARKET RATES. RELIANCE HAS BEEN PLA CED ON THE JUDGMENT OF JODHPUR BENCH OF ITAT IN THE CASE OF LA KE PALACE HOTELS & MOTELS LTD. 83 TTJ 1031 WHICH WAS LATER CO NFIRMED BY HONBLE RAJASTHAN HIGH COURT REPORTED AT 321 ITR 165, FOR THE PROPOSITION THAT THERE IS NO PROVISION UNDER TH E LAW TO TAX NOTIONAL AMOUNT OF LEASE RENT ON DEEMED OR PRESUMPT IVE BASIS. 4.5. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT IMPUG NED TRANSACTION IS A TRANSACTION OF SALE, WHICH HAS BEE N DISGUISED AS A LEASE TRANSACTION. IT WAS ALSO SUBMITTED THAT LOWER AUTHORITIES HAVE RIGHTLY TREATED THE TRANSACTION AS TRANSACTIONS KAMALA BROTHERS 7 OF SALE. IT WAS FURTHER SUBMITTED THAT SINCE THE LE ASE RENTALS WERE TOO LOW, THEREFORE, LEASE INCOME HAS BEEN RIGH TLY ESTIMATED AT AN APPROPRIATE HIGHER VALUE BY THE LOW ER AUTHORITIES. 4.6. WE HAVE GONE THROUGH THE SUBMISSIONS MADE BY BOTH THE SIDES AND ORDERS OF THE LOWER AUTHORITIES. IT IS NO TED BY US THAT LD. CIT(A) HAS HELD, AFTER RECORDING DETAILED FINDI NGS IN HIS ORDER, THAT AMOUNT OF CONSIDERATION WAS TO BE DETER MINED AS PER THE VALUE AS ASSESSED BY STAMP VALUATION OFFICE R. THE RELEVANT FINDINGS FROM THE ORDER OF LD. CIT(A) ARE REPRODUCED BELOW: FROM THE ABOVE, IT IS AGAIN CLEAR THAT OUT OF THE TOTAL STAMP DUTY PAID BY THE APPELLANT TO THE TUNE OF RS.3,420/- FIRST RS.1250/- PERTAINS TO THE VALUE OF RS.2,50,000/- AND THE REST OF RS.2,170/- IS 3% OF T HE VALUE OF RS.72,233.33 AND IN THIS WAY THE TOTAL VAL UE TO ARRIVE AT THE STAMP DUTY OF RS.3,420/- ADOPTED BY T HE STAMP VALUATION AUTHORITY IS RS.3,22,334/- ONLY. IT IS A CONSCIOUS DECISION OF THE PARLIAMENT WHILE INSERTIN G THE PROVISIONS OF SC.50C THROUGH FINANCE ACT 2002 W.E.F . 1/4/2003 THAT THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF STATE GOVERNMENT I.E. STAMP VALUATION AUTHORITY FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER WOULD BE DEEMED TO BE THE FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUING AS A RE SULT OF SUCH TRANSFER FOR THE PURPOSES OF SECTION 48 UNLESS KAMALA BROTHERS 8 THAT VALUATION IS DISPUTED IN ANY APPEAL OR REVISIO N BEFORE THE HIGHER AUTHORITIES THAN THE STAMP VALUAT ION AUTHORITY, COURT OR HIGH COURT. SINCE THE VALUE ADO PTED BY THE STAMP DUTY AUTHORITY TO THE TUNE OF RS.3,22,334 /- FOR ARRIVING AT STAMP DUTY RS.1250/- PLUS 3% OF THE VALUE EXCESS OVER RS 250,000/- OF THE TOTAL VAL UE IS NOT CHALLENGED OR DISPUTED IN ANY APPEAL OR REVISIO N BEFORE ANY AUTHORITY UNDER THE BOMBAY STAMP ACT 195 8 OR COURT OR HIGH COURT, THE VALUE OF THE IMPUGNED L AND FOR THE PURPOSES OF STAMP VALUATION IS FREEZED WITH THE AMOUNT OF RS.3,22,333/- AND BECOMES FINAL AND INTER AND IT BECOMES THE FULL VALUE OF CONSIDERATION FOR THE PURPOSES OF SEC. 48 BY VIRTUE OF THE PROVISIONS OF SEC.50C. THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT THIS VALUATIO N HAS BEEN REVISED BY ANY AUTHORITY U/S 53A OF THE BOMBAY STAMP ACT 1958 TOO. THUS, I DO NOT FIND ANY MERIT I N THE PART OF GROUND OF THE APPELLANT THAT ASSESSING OFFI CER HAS ERRED IN NOT REFERRING IT TO DISTRICT VALUATION OFFICER (DVO) FOR VALUING THE SAME AS THE VALUE OF THE LAND ON WHICH STAMP DUTY IS PAID AND THE RATES OF STAMP DUT Y IN THE INSTANT CASE ARE NOT CHALLENGED BY ANY PERSO N BEFORE ANY COURT OF LAW OR ANY APPELLATE AUTHORITY UNDER THE STATE LEGISLATURE. THEREFORE, I FIND THAT THE VALUE OF THE IMPUGNED LAND ADOPTED BY THE STAMP VALUATION AUTHORITY AT RS.3,22,334/- ON WHICH STAMP DUTY OF RS.3,420/- IS PAID BECOMES FINAL AND CANNOT BE TINKERED WITH. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO RE-COMPUTE THE CAP ITAL KAMALA BROTHERS 9 GAINS BY TAKING THE FULL VALUE OF CONSIDERATION OF THE ASSET UNDER TRANSFER TO BE RS.3,22,334/- . HOWEVER, SINCE THIS DEEMED VALUE U/S 50 C IS NOT THE ACTUAL VALUE OF THE IMPUGNED LAND AS THERE IS NO TRANSFER OF ABSOLU TE TITLE OF THE LAND TO LESSEE AND THE OWNERSHIP IS RE TAINED BY THE APPELLANT, THERE IS NO QUESTION OF ALLOWING ANY COST OR INDEXED COST OF ACQUISITION ALONG WITH OTHE R EXPENSES SUCH AS COST OF IMPROVEMENT OR THE EXPENSE S INCURRED IN RELATION TO SUCH TRANSFER AGAINST THE S AME WHILE COMPUTING THE CAPITAL GAINS WITHIN THE MEANIN G OF SEC. 49 OF THE IT ACT, 1961 EXCEPT THE STAMP DUT Y PAID TO THE TUNE OF RS. 3,420/-ACCORDINGLY, THIS GROUND IS PARTLY ALLOWED. 4.7. FROM THE ABOVE FINDINGS, IT IS CLEAR THAT FULL VAL UE OF CONSIDERATION OF THE IMPUGNED ASSET HAS BEEN DETERM INED AT RS. 3,22,334/- BASED UPON VALUE AS WAS ASSESSED BY THE STAMP VALUATION AUTHORITY. THE ACTION OF LD. CIT(A) HAS BEEN ACCEPTED BY THE ASSESSEE. UNDER THESE CIRCUMSTANCES , ONCE THE AMOUNT OF SALES CONSIDERATION HAS BEEN DETERMIN ED KEEPING IN VIEW PARTICULAR PROVISIONS OF LAW WHICH WERE APPLICABLE IN A GIVEN SITUATION, THEN NO FURTHER QU ESTION ARISES OF ESTIMATING THE VALUE OF CONSIDERATION ONCE AGAIN . THUS, IN OUR VIEW, THE ACTION OF LD. CIT(A) IN ESTIMATING LE ASE RENT WAS NOT ONLY SELF-CONTRADICTORY BUT ALSO BEYOND THE PRO VISIONS OF LAW. KAMALA BROTHERS 10 4.8. IT IS FURTHER NOTED BY US THAT IMPUGNED PLOT OF LA ND WAS UNDER RESERVATION, AND THUS, THE ONLY UTILITY FOR T HE ASSESSEE FOR THIS PLOT WAS THAT IT COULD HAVE BEEN USED FOR DEVELOPMENT AND CONSTRUCTION OF SCHOOL BUILDING. THE ASSESSEE F IRM WAS NOT ABLE TO CONSTRUCT THE SCHOOL BUILDING AND DEVELOP P LAY GROUND UPON THE SAID LAND. THE PARTNERS OF THE ASSESSEE FI RM FELT THAT THEY DID NOT HAVE REQUISITE EXPERIENCE TO RUN AN ED UCATIONAL INSTITUTE OR SCHOOL AND THEY FOUND IT APPROPRIATE F OR A CHARITABLE TRUST TO DO THIS JOB. UNDER THESE CIRCUM STANCES, THE ASSESSEE FIRM GAVE SAID LAND TO CHARITABLE TRUST TH AT COULD RUN SCHOOL EFFECTIVELY. IT IS FURTHER NOTED THAT THE SA ID LEASE WAS APPROVED BY THE BMC AND MAHARASHTRA GOVERNMENT. THE PROPERTY RECORDS WERE STILL IN THE NAME OF THE ASSE SSEE FIRM, INDICATING THAT THE ASSESSEE FIRM DID NOT TRANSFER FULL-FLEDGED RIGHTS AND INTEREST IN THE SAID LAND TO THE LESSEE. DETAILED DISCUSSION IN THIS REGARD HAS BEEN MADE BY US AT PA RA 7.1. OF THIS ORDER, WHICH SHOULD READ HERE ALSO. THUS, KEEP ING IN VIEW THESE FACTS ALSO, WE FIND THAT ESTIMATION OF LEASE RENT IN SUBSTITUTION OF ACTUAL LEASE RENT RECEIVED BY THE A SSESSEE WAS NOT JUSTIFIED IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. 4.9. THUS, TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUM STANCES OF THE CASE AND THE JUDGMENTS IN THE CASE OF LAKE P ALACE HOTELS & MOTELS LTD. (SUPRA) AND ALSO KEEPING IN VI EW THE DECISION OF LD. CIT(A) IN DETERMINING THE FULL VALU E OF CONSIDERATION OF THE ASSET AT RS.3,22,334/-, WE FIN D THAT ACTION OF THE LD. AO IN ESTIMATING THE LEASE RENT AT RS.13 ,74,353/- KAMALA BROTHERS 11 WAS SELF CONTRADICTORY AND UNJUSTIFIED, AND THEREFO RE THE SAME IS REVERSED. GROUND NO.2 OF ASSESSEES APPEAL IS AL LOWED. 5. GROUND NO.3: THIS GROUND IS GENERAL AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. CROSS OBJECTION NO.180/MUM/2013 FOR A.Y. 2003-04 6. IN THE CROSS OBJECTIONS, THE ASSESSEE HAS CHALLENG ED THE ACTION OF LD. CIT(A) IN ASSESSING THE LEASE RENTAL AS INCOME FROM HOUSE PROPERTY U/S 22 OF THE ACT. 6.1. SINCE, WE HAVE HELD IN OUR ORDER WHILE DECIDING TH E APPEAL OF THE ASSESSEE THAT AO WAS NOT JUSTIFIED IN ESTIMA TING LEASE RENTAL OF THE ASSESSEE AND ACTION OF LD. AO IN THIS REGARD HAS BEEN REVERSED BY US AND ACTION OF LD. CIT(A) IN ADO PTING FULL VALUE OF CONSIDERATION AT RS.3,22,334/- FOR THE PUR POSE OF COMPUTATION OF CAPITAL GAINS HAS BEEN UPHELD, AND T HEREFORE, WE FIND THERE IS NO GRIEVANCE LEFT TO BE ADDRESSED, AS HAS BEEN RAISED IN ITS CROSS OBJECTION BY THE ASSESSEE. THE SAME IS TREATED AS INFRUCTUOUS AND DISMISSED AS SUCH. ITA NO. 1334/MUM/2011 REVENUES APPEAL FOR A.Y. 200 3- 04: 7. GROUND NO.1: IN THIS GROUND, THE REVENUE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN HOLDING THE LEASE TRANS ACTIONS ENTERED INTO BY THE ASSESSEE WITH SHRADHA GYANPEETH TRUST AS KAMALA BROTHERS 12 A GENUINE TRANSACTION AND NOT A SHAM TRANSACTIONS A S WAS HELD BY THE AO. 7.1. IN THIS REGARD, WE HAVE HEARD BOTH THE PARTIES. IT IS NOTED BY US THAT LD. CIT(A) HAS RECORDED DETAILED FINDING S FOR HOLDING THAT IMPUGNED TRANSACTION WAS A TRANSACTIONS OF LEA SE ONLY. TAKING INTO ACCOUNT FACTS ON RECORD, IT HAS BEEN NO TED BY THE LD. CIT(A) THAT LEASE DEED IS PROPERLY REGISTERED A ND STAMP DUTY WAS PAID AS PER BOMBAY STAMP ACT, 1958. THE LE ASE DEED WAS APPROVED BY BMC AND STATE GOVERNMENT AUTHORITIE S. THE TITLE OF THE PROPERTY CONTINUED TO REMAIN IN THE NA ME OF THE ASSESSEE. NOTHING HAS BEEN BROUGHT BEFORE US TO NEG ATE THE DETAILED FINDINGS OF THE LD. CIT(A). THE TRANSACTIO NS CANNOT BE HELD TO BE SHAM MERELY ON THE BASIS OF SOME DOUBTS AND APPREHENSIONS. DULY REGISTERED DOCUMENTS CANNOT BE BRUSHED ASIDE OR REWRITTEN BY THE REVENUE AUTHORITIES THAT TOO WITHOUT BRINGING ANY CONTRARY MATERIAL ON RECORD. IT IS FUR THER NOTED THAT AS PER TERMS OF THE LEASE DEED, IF ANY ADDITIO NAL TDS/FSI IS ALLOWED BY THE GOVERNMENT ON THE SAID LAND, THEN , THE SAME SHALL BE WITHIN THE EXCLUSIVE RIGHT AND OWNERSHIP O F THE LESSER ASSESSEE. ALL THESE FACTS INDICATE THAT THE ABSOLUT E TITLE HAS NOT YET BEEN TRANSFERRED BY THE ASSESSEE TO THE LESSEE. THUS, TAKING INTO ACCOUNT ALL THE FACTS OF THE CASE, MATE RIAL PLACED BEFORE US FOR OUR CONSIDERATION AND DETAILED AND WE LL REASONED FINDINGS OF LD. CIT(A), WE FIND THAT NO INTERFERENC E IS CALLED FOR IN THE ORDER OF LD. CIT(A) AND SAME IS UPHELD ON TH IS ISSUE. GROUND NO.1 OF REVENUES APPEAL IS DISMISSED. KAMALA BROTHERS 13 8. GROUND NO.2: IN THIS GROUND, THE REVENUE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN DIRECTING THE AO TO ADO PT THE MARKET VALUE OF THE PROPERTY AT RS.3,22,334/- ON THE BASIS OF STAMP VALUE OF THE LEASE DEED AS WAS ASSESSED BY THE STAM P VALUATION AUTHORITY AS PER BOMBAY STAMP DUTY ACT, 1 958. 8.1. DURING THE COURSE OF HEARING, IT HAS BEEN ARGUED B Y THE LD. DR THAT VALUE FOR TRANSFER OF IMMOVABLE PROPERT Y IF THE SAME IS TRANSFERRED BY WAY OF SALE IS DIFFERENT FRO M THE VALUE IF SAME IS TRANSFERRED BY WAY OF LEASE. HE SUBMITTED T HAT AS PER SECTION 50C, VALUE OF SALES CONSIDERATION SHOULD BE ADOPTED AS IF THE TRANSFER IS BY WAY OF SALE. 8.2. WE HAVE GONE THROUGH THESE SUBMISSIONS MADE BEFORE US AND PROVISIONS OF LAW AS CONTAINED IN SECTION 50C I N THIS REGARD. WE DO NOT FIND FORCE IN THE ARGUMENTS MADE BY THE LD. DR ON THIS ISSUE. WE HAVE ALREADY HELD THAT THE IMP UGNED TRANSACTION IS A TRANSACTION OF LEASE, EXECUTED THR OUGH A LEASE DEED DULY REGISTERED WITH THE CONCERNED AUTHORITIES AFTER PAYMENT OF STAMP DUTY AS DETERMINED BY THE STAMP VA LUATION AUTHORITY ACCORDING TO BOMBAY STAMP ACT, 1958. IN T HE EARLIER PART OF THIS ORDER, IT HAS BEEN MENTIONED THAT THE ASSESSEE HAS ACCEPTED THE ACTION OF THE AO IN HOLDING THAT IMPUG NED LEASE TRANSACTION WOULD BE COVERED UNDER THE PROVISIONS O F SECTION 50C. THUS, WE HAVE REFRAINED OURSELVES FROM GOING I NTO THE CONTROVERSY THAT WHETHER A LEASE TRANSACTION WOULD BE COVERED UNDER SECTION 50C OR NOT. IN THE AFORESAID FACTS, THE LIMITED QUESTION TO BE DECIDED BY US HERE IS THAT WHETHER F ULL VALUE OF KAMALA BROTHERS 14 CONSIDERATION WITHIN THE MEANING OF SECTION 50C SHA LL BE THE VALUE ADOPTED BY THE STAMP AUTHORITIES FOR THE LEAS E DEED AS REGISTERED OR THE VALUE THAT WOULD HAVE BEEN ADOPTE D BY THE STAMP AUTHORITIES IF THE SAME WOULD HAVE BEEN REGIS TERED AS SALE DEED, AS IF IT WAS A CASE OF TRANSFER BY WAY OF SALE. AS PER THE AO, THE VALUE SHOULD BE ADOPTED AS IF IT WA S A CASE OF TRANSFER BY WAY OF SALE, WHEREAS AS PER THE LD. C IT(A), THE VALUE WOULD BE THAT AS HAS BEEN ACTUALLY ADOPTED FO R THE LEASE DEED ACTUALLY REGISTERED. IN OUR CONSIDERED VIEW, T HE PROVISIONS OF SECTION 50C ARE CLEAR. IT LAYS DOWN THAT THE VAL UE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY SHALL BE DEEMED TO BE FULL VALUE OF CONSIDERATION IN A GIVEN CASE. SEC TION 50C CREATES A DEEMING FICTION. LAW IS WELL SETTLED THAT SCOPE OF DEEMING FICTION CANNOT BE EXTENDED BEYOND WHAT HAS BEEN MENTIONED CLEARLY IN THE LAW. DEEMING PROVISIONS HA VE TO BE CONSTRUED STRICTLY AND APPLIED LITERALLY. IT IS FUR THER NOTED BY US THAT THE WORD ASSESSABLE HAS BEEN ADDED IN SEC TION 50C BY FINANCE ACT 2009, W.E.F. 01.10.2009. THIS WORD H AS BEEN ADDED TO TAKE CARE OF THOSE SITUATIONS, WHERE NO DE ED WHATSOEVER, IS REGISTERED BY THE PARTIES, TO EVADE THE TAXES. WITH A VIEW TO TAKE CARE OF SUCH KIND OF SITUATIONS , IT WAS PRESCRIBED BY THE LEGISLATURE THAT IF NO DEED IS RE GISTERED BY THE PARTIES, THEN IN SUCH A CASE IF THE DEED WOULD HAVE BEEN REGISTERED THEN WHATEVER VALUE WOULD HAVE BEEN ADOP TED, THE SAME SHALL BE ADOPTED U/S 50C. BUT IN THE CASE BEFO RE US, LEASE DEED HAS BEEN REGISTERED ON WHICH STAMP VALUA TION OFFICER HAS ASSESSED THE VALUE FOR THE PURPOSE OF A SCERTAINING AMOUNT OF STAMP DUTY PAYABLE AND THEREFORE THE SAME VALUE KAMALA BROTHERS 15 SHOULD BE ADOPTED IN THE CASE BEFORE US. THE CLEAR MANDATE OF THE LAW IS THAT THE VALUE ADOPTED OR ASSESSED BY TH E STAMP VALUATION AUTHORITY SHALL BE ADOPTED FOR DETERMININ G FULL VALUE OF CONSIDERATION. EVEN, OTHERWISE THE WORD ASSESSA BLE HAS BEEN ADDED W.E.F. 01.10.2009, AND THE CASE BEFORE U S PERTAINS TO A.Y. 2003-04 I.E. PRIOR TO 01.10.2009 AND THEREF ORE ONLY PRE- AMENDED LAW SHALL BE APPLIED IN THE CASE BEFORE US. 8.3. THUS, KEEPING IN VIEW THE FACTS OF THE CASE AND TH E CLEAR POSITION OF LAW BEFORE US, WE FIND THAT ACTION OF L D. CIT(A) IN ADOPTING THE VALUE AS ADOPTED BY THE STAMP VALUATIO N AUTHORITY UNDER THE BOMBAY STAMP ACT 1958, FOR THE PURPOSE OF DETERMINING FULL VALUE OF CONSIDERATION IS JUSTI FIED, AND THE SAME IS UPHELD. GROUND NO. 2 OF REVENUES APPEAL IS DISMISSED. 9. GROUND NO.3: THIS GROUND IS GENERAL DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION, AND THEREFORE DISMISSED. ITA NO. 1140/MUM/2011 ASSESSEES APPEAL FOR A.Y. 20 06- 07: 10. THE GROUNDS RAISED AND ISSUES ARISING IN THIS APPE AL ARE IDENTICAL TO A.Y. 2003-04. NO DISTINCTION HAS BEEN MADE OUT BY EITHER PARTY BEFORE US. THUS, AO IS DIRECTED TO FOL LOW OUR ORDER FOR A.Y. 2003-04 HERE ALSO. KAMALA BROTHERS 16 11. THE ASSESSEE HAS RAISED ADDITIONAL GROUND WHICH IS REPRODUCED AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF AO IN ASSESSING THE SALES PROCEEDS FROM RESIDENTIAL HOUSING PROJECT (ALLEGED TO BE RECEIVED AS DONATION) IN AY 2006-07, IGNORING THE FACT THE APPELLANT WAS FOLLOWING PROJECT COMPLETION METHOD, OF ACCOUNTING IN RESPECT OF THE SAID RESIDENTIAL HOUSI NG PROJECT, WHICH WAS ONLY COMPLETED IN DECEMBER 2006, AND HENCE THE INCOME ARISING FROM THE PROJECT ACCRUED ONLY IN A.Y. 2007 - 2008 I.E. SUBSEQUENT YE AR AND NOT IN THE IMPUGNED YEAR. HENCE, THE ADDITION OF RS,62,39,236/- MAY BE DELETED. WITHOUT PREJUDICE TO ABOVE, ASSESSEE HAS UNDERTAKEN HOUSING PROJECT WHICH IS THE ELIGIBLE FO R DEDUCTION U/S 80-IB(10) AND HENCE, IF THE AMOUNT OF RS.62,39,236/- IS HELD TO BE TAXABLE IN THE IMPUGNED YEAR I.E. A.Y. 2006 - 2007, THEN THE CONSEQUENTIAL DEDUCTION U/S 80-IB(10) MAY BE GRANTE D. 11.1. DURING THE COURSE OF HEARING, IT WAS ARGUED BY THE LD. COUNSEL THAT THE AFORESAID GROUND IS PURELY LEGAL A ND CAN BE DECIDED ON THE BASIS OF FACTS ALREADY ON RECORD. NO SERIOUS OBJECTIONS WERE RAISED BY THE LD. DR FOR ADMISSION OF THE LEGAL GROUND. KAMALA BROTHERS 17 11.2. IT IS NOTED BY US THAT THE GROUND RAISED BY THE AS SESSEE IS PURELY LEGAL AND CAN BE DECIDED ON THE BASIS OF FACTS ON RECORDS OF THE LOWER AUTHORITIES. THEREFORE, KEEPIN G IN VIEW THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NT PC 229 ITR 383, THIS GROUND IS ADMITTED. IT IS NOTED BY US THAT THERE IS NO ADJUDICATION OR APPLICATION OF MIND BY THE LOWER AUTHORITIES ON THIS ISSUE. THEREFORE, IN THE INTEREST OF JUSTIC E AND FAIR PLAY, WE SEND THIS ISSUE BACK TO THE FILE OF THE AO FOR D ECIDING THE SAME IN ACCORDANCE WITH LAW AND FACTS. THE AO SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE BEF ORE DECIDING THIS ISSUE. THE ASSESSEE SHALL ALSO EXTEND REQUISITE COOPERATION TO THE AO BY FURNISHING REQUIRED DETAIL S AND DOCUMENTS, AS MAY BE REQUIRED BY THE AO AND AS MAY BE CONSIDERED APPROPRIATE BY IT, AS PER LAW AND FACTS. THUS, THIS GROUND IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1335/MUM/2011 REVENUES APPEAL AND C.O. NO.181/MUM/2013 FOR AY 2006-07: 12. THE GROUNDS RAISED AND ISSUES ARISING IN THIS APPE AL AND CO ARE IDENTICAL TO A.Y. 2003-04. NO DISTINCTION HA S BEEN MADE OUT BY EITHER PARTY BEFORE US. THUS, AO IS DIR ECTED TO FOLLOW OUR ORDER FOR A.Y. 2003-04 HERE ALSO. ASSESSEES APPEAL IN ITA NO.1160/MUM/2011 & CO NO.182/MUM/2013 FOR A.Y. 2007-08: KAMALA BROTHERS 18 13. IT IS NOTED THAT GROUNDS RAISED IN ASSESSEES APPE AL AND CROSS OBJECTION FILED BY IT ARE IDENTICAL TO THE GR OUNDS RAISED FOR A.Y. 2003-04. THE AO IS DIRECTED TO FOLLOW OUR ORDER FOR A.Y. 2003-04 HERE ALSO. 14. THE ASSESSEE HAS RAISED ADDITIONAL GROUND AS UNDER : WITHOUT PREJUDICE TO ABOVE, ASSESSEE HAS UNDERTAKE N HOUSING PROJECT WHICH IS THE ELIGIBLE FOR DEDUCTION U/S 80IB(10) AND HENCE, IF THE AMOUNT OF RS.62,39,236/- IS HELD TO BE TAXABLE IN THE IMPUGNED YEAR I.E. A.Y. 2 007-08 (AS PER THE PROJECT COMPLETION METHOD), THEN THE CONSEQUENTIAL DEDUCTION U/S 80-IB(10) MAY BE GRANTE D. 15. THE ADDITIONAL GROUND RAISED IS IDENTICAL TO THE G ROUND RAISED IN A.Y. 2006-07, THEREFORE, FOLLOWING OUR OR DER FOR A.Y. 2006-07, THIS GROUND IS ADMITTED AND SENT BACK TO T HE AO FOR AFRESH ADJUDICATION WITH THE SAME DIRECTIONS AS ARE GIVEN ABOVE IN OUR ORDER. ADDITIONAL GROUND IS PARTLY ALL OWED FOR STATISTICAL PURPOSES. ITA NO.1336/MUM/2011 REVENUES APPEAL FOR A.Y. 2007 - 08: 16. GROUND NO.1: IN THIS GROUND, THE REVENUE HAS CHALLENGED THE ACTION OF LD. AO IN ALLOWING THE CLAIM OF DEDUC TION U/S 80- IB(10). KAMALA BROTHERS 19 16.1. DURING THE COURSE OF HEARING, IT HAS BEEN SUBMITTE D BY THE LD. DR THAT ASSESSEE DID NOT FULLY COMPLY WITH T HE REQUIREMENTS OF SECTION 80-IB(10) AND THEREFORE, IT WAS NOT ELIGIBLE FOR CLAIMING THE DEDUCTION AND LD. CIT(A) HAS WRONGLY ALLOWED THE SAME. IT HAS BEEN SUBMITTED THAT THE PR OJECT OF THE ASSESSEE WAS NOT HAVING SUFFICIENT MINIMUM AREAS TH AT WAS REQUIRED FOR THE ELIGIBILITY FOR CLAIMING DEDUCTION U/S. 80- IB(10). HE HAS RELIED BEFORE US ORDER OF THE AO, WH EREIN REASONING HAS BEEN GIVEN BY THE LD. AO FOR DENYING THE BENEFIT OF DEDUCTION U/S 80-IB(10) TO THE ASSESSEE. 16.2. ON THE OTHER HAND, LD. COUNSEL OF THE ASSESSEE HAS DRAWN OUR ATTENTION TO VARIOUS DOCUMENTS FILED IN T HE PAPER BOOK TO DEMONSTRATE THAT FACTS WERE NOT PROPERLY AP PRECIATED BY THE AO AND BENEFIT OF DEDUCTION WAS DENIED UNDER SOME CONFUSION AND WRONG UNDERSTANDING OF FACTS. HE HAS RELIED UPON THE ORDER OF LD. CIT(A) AND DETAILED FINDINGS CONTAINED THEREIN AND REQUESTED FOR UPHOLDING THE ORDER OF LD . CIT(A) ON THIS ISSUE. 16.3. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE ORDERS OF LOWER AUTHORITIES. IT IS NOTED BY US THAT LD. CIT(A) HAS GONE THROUGH ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND HAS EXAMINED ALL THE DOCUMENTARY EVIDENCES, AND THEREAFTER ONLY HE HAS RECORDED DETAILED FINDINGS W ITH PROPER REASONING FOR ALLOWING THE CLAIM OF THE ASSESSEE AN D REVERSING THE ACTION OF LD. AO. THE CIT(A) HAS MET EACH AND E VERY ADVERSE OBSERVATION OF THE AO WITH PROPER REASONING . IT WAS KAMALA BROTHERS 20 OBSERVED BY THE LD. AO IN THE ASSESSMENT ORDER THAT THE ASSESSEE DID NOT FULFILL FIRST CONDITION AS PRESCRI BED U/S 80- IB(10) (A) OF THE ACT, AS IT HAD COMMENCED DEVELOPM ENT AND CONSTRUCTION OF THE PROJECT PRIOR TO 1 ST OCTOBER 1998, AS THE LAND WAS PURCHASED ON 2 ND MAY 1996 AND SUBSTANTIAL DEVELOPMENT EXPENSES WERE INCURRED DURING THE F.Y. 1996-97. THE LD. CIT(A) ANALYSED THESE OBSERVATIONS AND FOUND THAT REQUISITE PLANS WERE APPROVED BY MCGB ON 15 TH MARCH 2002. IT IS WELL KNOWN FACT THAT NO PROJECT CAN BE STARTE D WITHOUT REQUISITE APPROVAL. UNDER THESE CIRCUMSTANCES, IT H AS BEEN HELD BY THE LD. CIT(A) THAT IT CANNOT BE INFERRED THAT HOUSING PROJECT WAS COMMENCED PRIOR TO 1 ST OCTOBER 1998. DURING THE COURSE OF HEARING BEFORE US, LD. COUNSEL HAS DRAWN OUR ATTENTION TO THE COMMENCEMENT CERTIFICATE EXHIBITED IN THE PAPER BOOK SHOWING THAT THE SAME WAS GRANTED BY THE LOCAL AUTHORITY ON 15.03.2002 AND A SEPARATE NOTICE WAS G IVEN TO BMC THEREAFTER ONLY. IT HAS BEEN FURTHER SHOWN TO U S THAT THE LAND WAS EARLIER AN AGRICULTURAL LAND, WHICH WAS GO T CONVERTED TO NON-AGRICULTURAL LAND, VIDE PERMISSION DATED 15 TH SEPTEMBER 2001. THUS, DEVELOPMENT AND CONSTRUCTIONS WORK WAS NOT PERMISSIBLE UNLESS SUCH CONVERSION WAS DONE. IT HAS BEEN FURTHER SHOWN TO US THAT DEVELOPMENT/CONSTRUCTION E XPENSES WERE INCURRED FROM A.Y. 2002-03 ON WORDS. IT IS FUR THER SHOWN THAT PAYMENT TO BMC OR PROPERTY TAX OR ARCHITECT FE E ETC. HAVE BEEN INCURRED ONLY AFTER THE COMMENCEMENT, DEVELOPM ENT AND CONSTRUCTION OF THE PROJECT. WE FIND THAT FINDINGS RECORDED BY THE LD. CIT(A) ARE IN ACCORDANCE WITH LAW AND FACTS ON THIS ISSUE. OUR VIEW FINDS SUPPORT FROM THE DECISIONS OF THE KAMALA BROTHERS 21 TRIBUNAL IN THE CASE OF SMT. MANJU GUPTA VS. ACIT 1 34 ITD 503 (MUM) AND NIRMITI CONSTRUCTIONS V. DCIT 4 SOT 3 83 (PUNE). 16.4. OTHER OBJECTION OF THE LD. AO WAS THAT HOUSING PRO JECT WAS CONSTRUCTED ON PLOT OF LAND ADMEASURING 3,200 S Q. METERS, AND THUS, NOT MEETING THE STIPULATED MINIMU M AREAS OF ONE ACRE AS PRESCRIBED U/S 80-IB(10)(B) OF THE A CT. IT IS NOTED BY US THAT LD. CIT(A) HAS MET THIS OBJECTION OF THE AO ON THE BASIS OF FINDINGS RECORDED BY HIM IN HIS ORDER. DURING THE COURSE OF HEARING BEFORE US IT HAS BEEN SUBMITTED T HAT THE REQUIREMENT OF THE LAW IS THAT PROJECT SHOULD BE ON THE SIZE OF PLOT OF LAND OF MINIMUM ONE ACRE, AND HERE THE AREA PROJECT MEANS PROJECT AS PROVED BY THE LOCAL AUTHORITY. IT WAS SHOWN TO US ON THE BASIS OF THE DOCUMENT ENCLOSED IN THE PAPER BOOK THAT ENTIRE PLOT ADMEASURING 8612.40 SQ. MTS. WAS A PPROVED BY THE LOCAL AUTHORITY AS HOUSING PROJECT, AND CO MMENCEMENT CERTIFICATE WAS ISSUED IN RESPECT OF THE ENTIRE PLO T. IT WAS FURTHER SHOWN TO US THAT PLOT WAS SUB-DIVIDED BY BM C AND SOME PORTION OUT OF THE TOTAL LAND WAS SEGREGATED F OR THE PURPOSE OF COMMON AMENITIES IN TERMS OF RULES AND REGULATIONS OF A LOCAL BODY. IT WAS SUBMITTED THAT WHEN A PORTION HAS BEEN EARMARKED AS PER THE MANDATE OF TH E LAW FOR THE PURPOSE OF COMMON AMENITIES THEN THAT PORTION O F LAND SHOULD ALSO TO BE CONSIDERED AS PART OF THE PROJECT . IT HAS BEEN FURTHER SUBMITTED THAT LIMITS ON THE EXTENT OF COMM ERCIAL AREA OF HOUSING PROJECT WAS INSERTED W.E.F. 01.04.2005 A ND DOES NOT APPLY TO PROJECTS APPROVED BEFORE THAT DATE, AND SI NCE PROJECT KAMALA BROTHERS 22 OF THE ASSESSEE WAS APPROVED PRIOR TO 01.04.2005, T HEREFORE, THESE RESTRICTIONS WERE NOT APPLICABLE ON THE CASE OF THE ASSESSEE. IT IS NOTED THAT RELIANCE IN THIS REGARD HAS BEEN RIGHTLY PLACED ON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. HAPPY HOME ENTERPRISE 372 ITR 1 (BOM) WHICH HAS BEEN AFFIRMED BY THE SUPREME COURT IN A SUBSEQUENT JUDGMENT IN THE CASE OF CIT VS SARKAR BUILDERS 375 ITR 392. THESE JUDGMENTS APPLY ON THE FACTS OF THE CASE BEFORE US. 16.5. IT IS FURTHER NOTED BY US THAT LD. CIT(A) HAS OBSE RVED THAT IT WAS WRONGLY PRESUMED BY THE AO THAT CONSTRU CTION AND DEVELOPMENT ACTIVITY WAS CARRIED OUT ON A PLOT WHIC H WAS LESS THAN ONE ACRE. IT HAS ALSO BEEN HELD BY HIM THAT HO USING PROJECT WAS CONSOLIDATED PROJECT THAT WAS APPROVED THROUGH SINGLE APPROVAL FOR THE WHOLE PLOT CONSISTING OF PO RTION SUCH AS 141A, 141B, 141C & 141D. WE FIND THAT FINDINGS GIVE N BY THE LD. CIT(A), ARE LEGALLY CORRECT. OUR VIEW FINDS SUP PORT FROM THE DECISION OF THE TRIBUNAL IN THE CASE OF SIGMA CONST RUCTION VS. ITO 59 SOT 83( HYD) WHEREIN IT HAS BEEN HELD THAT W HERE A PORTION OF PLOT AREA WAS EARMARKED FOR LAYING ROADS , SAME SHOULD BE CONSIDERED AS PART OF HOUSING PROJECT IN ORDER TO DETERMINE THE PRESCRIBED LIMIT U/S 80IB. SIMILAR VI EW HAS BEEN TAKEN IN THE CASE OF BUNTY BUILDERS VS ITO 127 ITD 286 (PUNE) AND HAWARE ENGINEERS & BUILDERS P. LTD. V. ACIT 46 SOT 27 (MUM)(URO). THUS, KEEPING IN VIEW THE FACTS, THE DO CUMENTARY EVIDENCES BROUGHT BEFORE US, UN-ASSAILED FACTUAL FI NDINGS OF LD. CIT(A) AND AFORESAID JUDGMENTS PLACED BEFORE US , WE FIND KAMALA BROTHERS 23 THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT(A) AND THEREFORE SAME IS UPHELD, AND THEREFORE GROUND NO. 1 OF REVENUES APPEALS IS DISMISSED. 17. GROUND NO.2: THIS GROUND DEALS WITH ACTION OF LD. CIT(A) IN DIRECTING TO TAKE ALV OF RS.13,74,353/-. IT HAS ALREADY BEEN HELD BY US WHILE ADJUDICATING THE APPEAL OF THE ASS ESSEE THAT IT WAS NOT PERMISSIBLE UNDER THE LAW TO MAKE ESTIMATE OF LEASE RENT IN THE GIVEN FACT OF THIS CASE AND THE ADDITIO N MADE BY THE AO IN THIS REGARDS WAS DELETED IN FULL, AND THEREFO RE, THIS ISSUE RAISED BY THE REVENUE BECOMES ACADEMIC IN NATURE, A ND THEREFORE, GROUND NO.2 OF REVENUES APPEAL IS DISMI SSED. 18. GROUND NO3: THIS GROUND IS GENERAL AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION, THEREFORE DISMISSED. 19. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISM ISSED, AND ASSESSEES APPEAL AS WELL AS AND CO FILED BY TH E ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JANUARY, 2016. SD/- (SANJAY GARG ) SD/- (ASHWANI TANEJA) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER MUMBAI; ' DATED : 8/01/2016 CTX? P.S/. .. KAMALA BROTHERS 24 #$%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. $ %& / THE ASSESSEE 2. '(%& / THE RESPONDENT. 3. ) ) * ( $ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -. ' /0 , ) $ /01 , / DR, ITAT, MUMBAI 6. 2 3 / GUARD FILE. / BY ORDER, ( -$ ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI