SHRI. RAMKRISHNA HARI DANDEKAR, THANE V. DCIT CIR - 3,

ITA 1290/MUM/2008

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84604 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 12-08-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 21-02-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C N VAZE
• Assessee Lawyers: R N DSOUZA; PREMANAND J
• Keywords: Fair market value; Valuation report; Non compliance; Reassessment proceedings
• Section: 148; 54

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM) . . , , ./I.T.A. NO.1290/MUM/2008 ( / ASSESSMENT YEAR : 2004-05) SHRI RAMKRISHNA HARI DANDEKAR, 1, LAXMI KESHAV APARTMENT DANDEKAR WADI, DR.RAMESH PRADHAN MARG, NEAR NEW ENGLISH SCHOOL, NAUPADA, THANE(W)-400602 MUMBAI / VS. THE DY.COMMISSIONER OF INCOME TAX, CIRCLE -3, THANE, LOWER GROUND FLOOR, VARDAAN, MIDC, WAGLE INDUSTRIAL ESTATE, THANE(W) ( / APPELLANT) .. ( / RESPONDENT) ./I.T.A. NO.1610/MUM/2009 ( / ASSESSMENT YEAR : 2000-01) SHRI RAMKRISHNA HARI DANDEKAR, 1, LAXMI KESHAV APARTMENT DANDEKAR WADI, DR.RAMESH PRADHAN MARG, NEAR NEW ENGLISH SCHOOL, NAUPADA, THANE(W)-400602 MUMBAI / VS. THE DY.COMMISSIONER OF INCOME TAX, CIRCLE -3, THANE, LOWER GROUND FLOOR, VARDAAN, MIDC, WAGLE INDUSTRIAL ESTATE, THANE(W).. ( / APPELLANT) .. ( / RESPONDENT) ./ ./PAN/GIR NO. : AEJPD3767J ./I.T.A. NO.4086/MUM/2009 ( / ASSESSMENT YEAR : 2000-01) THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE -1, THANE, LOWER GROUND FLOOR, VARDAAN, MIDC, WAGLE INDUSTRIAL ESTATE, THANE(W).. / VS. SHRI GOVIND HARI DANDEKAR, 201, LAXMI KESHAV APARTMENT DANDEKAR WADI, 2 ND FLOOR, DANDEKAR WADI, NAUPADA, THANE(W)-400602 MUMBAI ( / APPELLANT) .. ( / RESPONDENT) ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 2 ./I.T.A. NO.4087/MUM/2009 ( / ASSESSMENT YEAR : 2004-05) THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE -1, THANE, LOWER GROUND FLOOR, VARDAAN, MIDC, WAGLE INDUSTRIAL ESTATE, THANE(W).. / VS. SHRI GOVIND HARI DANDEKAR, 201, LAXMI KESHAV APARTMENT DANDEKAR WADI, 2 ND FLOOR, DANDEKAR WADI, NAUPADA, THANE(W)-400602 MUMBAI ( / APPELLANT) .. ( / RESPONDENT) ./ ./PAN/GIR NO. : AEBPD6893D ! / REVENUE BY SHRI C N VAZE ' ! /ASSESSEE BY SHRI R N DSOUZA AND SHRI PREMANAND J # $ ' %& / DATE OF HEARING : 21.10.2014 '( ' %& /DATE OF PRONOUNCEMENT : 31.12.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: ALL THE FOUR APPEALS FILED BY THE RESPECTIVE ASSESS EES ARE DIRECTED AGAINST THE ORDERS PASSED BY LD CIT(A)-I, THANE IN THEIR RE SPECTIVE HANDS AND THEY RELATE TO THE ASSESSMENT YEARS 2001-02 AND 2004-05. ALL TH ESE APPEALS WERE HEARD TOGETHER, SINCE THEY ARISE OUT OF COMMON SET OF FAC TS. ACCORDINGLY, THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. 2. BOTH THE ASSESSEES HEREIN WERE JOINT OWNER OF A PROPERTY AND THEY ENTERED INTO A DEVELOPMENT AGREEMENT WITH M/S NIWAR A CONSTRUCTION AROUND DECEMBER 1999 THROUGH A MEMORANDUM OF UNDERSTANDING (MOU). THE CONSTRUCTION WAS COMPLETED IN THE FINANCIAL YEAR 20 03-04 RELEVANT TO THE ASSESSMENT YEAR 2004-05 AND THE ASSESSEES GOT THEIR SHARE IN THE CONSTRUCTION IN THAT YEAR. HENCE BOTH THE ASSESSEES OFFERED THE CAPITAL GAINS ARISING OUT OF ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 3 DEVELOPMENT AGREEMENT IN THE ASSESSMENT YEAR 2004-0 5, I.E., IN THE YEAR IN WHICH THE ASSESSEES GOT THEIR SHARE. HOWEVER, THE ASSESSING OFFICER HELD THAT THE CAPITAL GAIN IS ASSESSABLE IN THE FINANCIAL YEA R 1999-2000 RELEVANT TO THE ASSESSMENT YEAR 2000-01, I.E., IN THE YEAR IN WHICH MOU WAS SIGNED. THE AO FURTHER NOTICED THAT THE COMPENSATION ORIGINALLY GR ANTED TO THE ASSESSEES WAS ENHANCED SUBSEQUENTLY. ACCORDINGLY, THE AO ASSESSE D THE CAPITAL GAIN ARISING ON ORIGINAL COMPENSATION ON SUBSTANTIVE BASIS IN AS SESSMENT YEAR 2000-01 AND ON PROTECTIVE BASIS IN ASSESSMENT YEAR 2004-05. HO WEVER, THE AO ASSESSED THE CAPITAL GAIN ARISING ON ENHANCED COMPENSATION ON SU BSTANTIVE BASIS IN ASSESSMENT YEAR 2004-05. THE LD CIT(A) ALSO CONFIR MED THE VIEW TAKEN BY THE ASSESSING OFFICER. 3. HENCE THE PRINCIPAL ISSUE URGED BEFORE US RELA TES TO THE DETERMINATION OF THE ASSESSMENT YEAR IN WHICH THE CAPITAL GAINS IS A SSESSABLE. FURTHER THE ASSESSEE IS AGGRIEVED IN RESPECT OF THE FOLLOWING I SSUES ALSO:- (A) DETERMINATION OF THE VALUE OF SALE CONSIDERAT ION. (B) DETERMINATION OF COST AS ON 1.4.1981. (C) DENIAL OF EXEMPTION CLAIMED U/S 54 OF THE ACT . 4 . WE SHALL TAKE UP THE FIRST ISSUE RELATING TO TH E DETERMINATION OF THE ASSESSMENT YEAR IN WHICH THE CAPITAL GAIN SHOULD BE ASSESSED. THE FACTS RELATING THERETO ARE STATED IN BRIEF. THE ASSESSEES HEREIN ENTERED INTO A MEMORANDUM OF UNDERSTANDING DATED NIL (MOU) WITH M/S NIWARA CONSTRUCTION (ON NON-JUDICIAL STAMP PAPER ISSUED ON 07-12-99) FO R DEVELOPMENT OF A PROPERTY LOCATED WITHIN THE THANE MUNICIPAL LIMITS ADMEASURI NG 913.88 SQ. MTS. AT THE TIME OF EXECUTION OF THE MOU, THE ASSESSEES HAVE RE CEIVED AN ADVANCE OF RS.12.00 LAKHS. IT WAS STATED BY THE ASSESSEES THAT THE ADVANCE WAS RECEIVED ON 04.1.2000. HENCE, IT CAN BE REASONABLY CONCLUDED TH AT THE MOU WAS EXECUTED BY THE TIME THE ADVANCE AMOUNT OF RS.12.00 LAKHS WA S RECEIVED, I.E., DURING THE FINANCIAL YEAR 1999-2000 RELEVANT TO THE ASSESSMENT YEAR 2000-01. ACCORDING TO THE MOU, M/S NIWARA CONSTRUCTION (HEREINAFTER DEVE LOPER) SHALL PAY A SUM OF RS.1.00 CRORE TO THE ASSESSEES, ALLOT FOUR RESIDENT IAL FLATS EACH ADMEASURING 800 SQ. FT. OF CARPET AREA, TWO SHOPS EACH ADMEASURING 300 SQ.FT. OF CARPET AREA AND TWO EARMARKED CAR PARKING SPACE EACH ADMEASURING 15 0 SQ.FT IN THE PROPOSED ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 4 BUILDING. THE DEVELOPER ALSO AGREED TO SETTLE WIT H THE TENANTS RESIDING IN THE EXISTING BUILDING. 5. THE DEVELOPER GOT THE PLAN SANCTIONED BY THE TH ANE MUNICIPAL CORPORATION (TMC) ON 26.6.2000 AND OBTAINED COMMENC EMENT CERTIFICATE ALSO ON 15.7.2000. HOWEVER, SUBSEQUENTLY THE TMC DIRECTED THAT THE CONSTRUCTION SHOULD BE RESTRICTED TO GROUND AND TWO FLOORS IN VI EW OF A WRIT PETITION NO.309 OF 2000 FILED IN BOMBAY HIGH COURT. HENCE, THE DEVELO PER ALSO JOINED AS AN INTERVENER IN THE ABOVE SAID WRIT PETITION. AFTER THE DISPOSAL OF THE WRIT PETITION, THE TMC INFORMED THE DEVELOPER, VIDE ITS LETTER DAT ED 19.10.2001, THAT IT CAN CARRY OUT THE CONSTRUCTION AS PER THE ORIGINAL PLAN SANCT IONED ON 26.6.2000. THUS, IT IS SEEN THAT THE COMMENCEMENT OF CONSTRUCTION GOT DELA YED BY ABOUT 15 MONTHS DUE TO LEGAL PROCEEDINGS. 6. DUE TO THE DELAY IN COMPLETION OF THE CONSTRU CTION, THE COMPENSATION PAYABLE TO THE ASSESSEES WAS ENHANCED, I.E., THE AM OUNT PAYABLE TO THEM WAS ENHANCED TO RS.1,52,88,800/- AND FURTHER THE CARPET AREA OF THE SHOPS WAS ALSO ENHANCED TO 780 SQ.FT.. THUS, THE ASSESSEES GOT ADD ITIONAL AMOUNT OF RS.52.88,800/- AND ADDITIONAL CONSTRUCTED AREA OF 1 80 SQ.FT. IT IS AN ADMITTED FACT THAT THE DEVELOPER COMPLETED THE CONSTRUCTION DURIN G THE FINANCIAL YEAR 2003-04 AND HANDED OVER THE POSSESSION OF THE CONSTRUCTED A REAS TO THE ASSESSEES IN THAT YEAR. 7. THE ASSESSEES OFFERED THE CAPITAL GAINS ARISI NG ON ACCOUNT OF THE MOU IN ASSESSMENT YEAR 2004-05. HOWEVER, AS STATED EARLIER , THE ASSESSING OFFICER ASSESSED THE CAPITAL GAINS COMPUTED AS PER THE INIT IAL COMPENSATION IN AY 2000- 01 AND THE CAPITAL GAINS COMPUTED ON ENHANCED AMOUN T IN AY 2004-05. AS STATED EARLIER, THE CAPITAL GAINS ASSESSED IN AY 20 00-01 ON SUBSTANTIVE BASIS WAS ALSO ASSESSED ON PROTECTIVE BASIS IN AY 2004-05 . THE LD CIT(A) ALSO CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 8. THE MAIN CONTENTION OF THE ASSESSEE WAS THAT T HE DEVELOPER DID NOT COMPLY WITH THE TERMS AND CONDITIONS OF THE MOU AND HENCE THE DATE OF MOU ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 5 CANNOT BE CONSIDERED AS DATE OF TRANSFER. TO SUBST ANTIATE THIS CONTENTION, THE ASSESSEE HAS SUBMITTED THE FOLLOWING POINTS:- ( A) THE DEVELOPER DID NOT START THE CONSTRUCTION IM MEDIATELY AS PER THE TERMS OF MOU (B) THE PAYMENTS WERE NOT MADE BY THE DEVELOPER I N ACCORDANCE WITH THE TERMS AGREED UPON. (C) THE ASSESSEES HAD TO SERVE A LEGAL NOTICE TO THE DEVELOPER IN ORDER TO COMPEL HIM TO ADHERE TO THE TERMS AND CONDITIONS OF MOU (D) THE ASSESSEES HAD RETAINED THE RIGHT TO CANCE L THE MOU IN CASE OF BREACH OF TERMS AND CONDITIONS OF MOU (E) THE ASSESSEES HAVE GIVEN THE IRREVOCABLE POWE R OF ATTORNEY FOR A LIMITED PERIOD, I.E., UPTO THE DATE OF COMPLETION O F THE BUILDING. (F) THE DEVELOPER WAS NOT ENTITLED TO SELL HIS SH ARE OF CONSTRUCTED AREA UNTIL THE SHARES OF THE ASSESSEES ARE HANDED OVER T O THEM. (G) ORIGINALLY AGREED TERMS OF COMPENSATION WAS LA TER REVISED, WHICH SHOWS THAT THE MOU HAS NOT BECOME FINAL. ACCORDINGLY IT WAS SUBMITTED THAT THERE WAS UNCERTA INTY ABOUT THE COMPLIANCE OF THE TERMS AND CONDITIONS OF MOU. FURTHER IT WAS SU BMITTED THAT THE DEVELOPERS DID NOT HAVE INDEPENDENT RIGHT TO SELL THEIR SHARE UNLESS AND UNTIL THE ASSESSEES WERE GIVEN POSSESSION OF THEIR SHARE IN CONSTRUCTIO N. ACCORDINGLY IT WAS CONTENDED THAT THE MOU SHOULD NOT BE RELIED UPON TO DETERMINE THE YEAR OF ASSESSING THE CAPITAL GAINS. IT WAS FURTHER SUBMIT TED THAT THE ASSESSEES WERE GIVEN POSSESSION OF THEIR SHARE OF CONSTRUCTED AREA ONLY IN THE FINANCIAL YEAR 2003-04 RELEVANT TO THE ASSESSMENT YEAR AND HENCE T HE CAPITAL GAINS SHOULD BE ASSESSED IN THE ASSESSMENT YEAR 2004-05 ONLY. 9. HOWEVER, WE ARE NOT CONVINCED WITH THE CONTE NTIONS OF THE ASSESSEE. IN OUR VIEW, THE VARIOUS CLAUSES MENTIONED IN MOU RELA TING TO RIGHT OF REVOCATION OF MOU, THE CONDITION THAT THE ASSESSEES SHOULD BE GIV EN POSSESSION OF THE CONSTRUCTED AREAS BEFORE THE SALE OF DEVELOPERS SH ARE, IRREVOCABLE POWER OF ATTORNEY GIVEN TO THE DEVELOPER ONLY UPTO THE COMPL ETION OF CONSTRUCTION ETC., ARE USUAL TERMS AND CONDITIONS WHICH WOULD NORMALLY INC ORPORATED IN THE AGREEMENT IN ORDER TO PROTECT THE RIGHTS OF THE PARTIES. HEN CE, THE SAID CLAUSES CANNOT BE, IN OUR VIEW, TAKEN SUPPORT OF IN ORDER TO CONTEND THAT THERE WAS NO TRANSFER OF THE ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 6 PROPERTY. SIMILARLY, THE DELAY IN PAYMENT OF INSTA LLMENTS AT AGREED TIME SHALL ALSO NOT SUPPORT THE CASE OF THE ASSESSEE, SINCE THE TAX AUTHORITIES HAVE NOTICED THAT THE PROJECT GOT DELAYED DUE TO LEGAL COMPLICATIONS AND HENCE, IT IS NATURAL FOR THE DEVELOPER TO DELAY THE PAYMENT OF INSTALLMENTS. TH OUGH THE ASSESSEES CONTEND THAT THEY HAD TO SERVE LEGAL NOTICE TO THE DEVELOPE R, YET WE NOTICE THAT THE SAID NOTICE WAS DULY ADDRESSED BY THE DEVELOPER AND THE SAME HAS ALSO BEEN ACCEPTED BY THE ASSESSEES. THERE WAS NO RECORD TO SHOW THAT THE ASSESSEE WAS NOT CONVINCED WITH THE REPLY GIVEN BY THE DEVELOPER . FINALLY, THE ASSESSEES HAVE GOT POSSESSION OF THE CONSTRUCTED AREAS AND ALSO RE CEIVED THE AGREED AMOUNT, WHICH SHOWS THAT THE TERMS OF MOU HAS BEEN COMPLIED WITH EVEN THOUGH THERE WAS SOME DELAY. HENCE, IN OUR VIEW, THE TAX AUTHOR ITIES ARE JUSTIFIED IN PLACING DUE RELIANCE ON THE MOU, SINCE IT HAS ULTIMATELY BE EN GIVEN EFFECT TO. 10. WE NOTICE THAT THE LD CIT(A) HAS CONSIDERED A LL THESE POINTS AND ACCORDINGLY HAS RENDERED HIS DECISION. FOR THE SAK E OF CONVENIENCE, WE EXTRACT BELOW THE OPERATIVE PORTION OF THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE:- 5. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE WR ITTEN SUBMISSIONS FILED BY THE APPELLANT DURING THE COURS E OF APPELLATE PROCEEDINGS. AFTER EXAMINING ALL THE RELEVANT FACTS OF THE CASE AND THE LEGAL POSITION ON VARIOUS ISSUES INVOLVED IN THIS A PPEAL, THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT ARE BEING CONSIDERED AND DISPOSED OFF AS UNDER: GROUND OF APPEAL NO -1 IN THE FIRST GROUND OF APPEAL, THE APPELLANT HAS CH ALLENGED THE AO'S ACTION OF TAXING THE LONG TERM CAPITAL GAINS ON TRANSFER O F RESIDENTIAL LAND TO THE DEVELOPER IN THE AY 2000-01 ON SUBSTANTIVE BASIS AN D IN AY 2004-05 ON PROTECTIVE BASIS. THE FACTS HAVE BEEN EXPLAINED HER EINABOVE. THE MAIN ISSUE TO BE DECIDED IN THIS GROUND OF APPEAL IS WHE THER THE MEMORANDUM OF UNDERSTANDING (MOU) DATED NIL ENTERED INTO BY TH E APPELLANT AND M/S NIWARA CONSTRUCTION ( ON THE NON-JUDICIAL STAMP PAP ER ISSUED ON 07/12/99 ) CONFERRED THE DEVELOPMENT RIGHTS UNTO THE DEVELOPER S IN FY 1999-2000 RELEVANT TO AY 2000-01 AND WHETHER THIS TRANSACTION WAS COVERED WITHIN THE PROVISIONS OF SECTION 2(47)(V) OF THE IT ACT R. W.S 53A OF THE TRANSFER OF PROPERTY ACT. ON CLOSE SCRUTINY OF THE VARIOUS PROV ISIONS OF THE MOU ENTERED INTO BY THE APPELLANT AND THE DEVELOPERS, I T BECOMES AMPLY CLEAR THAT THE APPELLANT HAD CONFERRED ALL DEVELOPMENT RI GHTS UNTO THE DEVELOPERS IN RESPECT OF THE PLOT OF LAND IN QUESTION ADMEASUR ING 913.88 SQ MTRS BEARING S NO 7, HISSA NO-2, TIKKA NO-16, CTS NO-40A SITUATED AT RAM ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 7 MARUTI CROSS ROAD, GOKHALE ROAD, NAUPADA, THANE. TH E DEVELOPERS ACQUIRED THE RIGHT TO RELOCATE THE APPELLANT AND OT HER CO-OWNERS TO A TEMPORARY ALTERNATE ACCOMMODATION; TO DEMOLISH THE EXISTING STRUCTURE ; TO PERSUADE THE EXISTING TENANTS FOR PROPOSED DEVELOPM ENT AND TO SHIFT THEM TO ALTERNATE LOCATIONS ; TO APPLY FOR AND GET SANCT ION FOR THE PROJECT FROM TMC; TO IMPLEMENT THE PROJECT WITH ADEQUATE SPEED; TO PAY THE MONETARY CONSIDERATION TO THE APPELLANT AND TO GIVE POSSESSI ON OF THE AGREED FLATS / SHOPS / PARKING SPACES TO THE APPELLANT ETC. AT THE TIME OF ENTERING INTO THE MOU, THE DEVELOPERS PAID A SUM OF RS 12 LAKHS T O THE APPELLANT AND, THEREAFTER, THE POSSESSION OF THE LAND WAS TA KEN OVER BY THE DEVELOPER. FROM PERUSAL OF THE FACTS, I FIND THAT THE DEVELOP ERS, M/S NIWARA CONSTRUCTION DID MAKE EVERY EFFORT TO COMPLY WITH THE PROVISIONS OF THE MOU. THE DEVELOPERS HAD ALL THE GOOD INTENTIONS TO CARRY OUT THE PROJECT WITHIN THE STIPULATED TIME AND THEY INDEED TRIED FOR THE SAME. THE DEVELOPERS GOT THE PLAN OF CONSTRUCTION SANCTIO NED BY TMC ON 26/06/2000, I.E., WITHIN A PERIOD OF SEVEN MONTHS F ROM THE DATE OF MOU. THE COMMENCEMENT CERTIFICATE WAS OBTAINED ON 15/07 /2000 I.E. WITHIN A PERIOD OF LESS THAN ONE MONTH FROM THE DAT E OF APPROVAL OF THE PLAN. THE PROJECT WAS DELAYED ONLY BECAUSE OF THE W RIT PETITION ( NO 349 OF 2000 ) FILED IN THE BOMBAY HIGH COURT AND THE CONSE QUENT ORDER DATED 02/12/2000 OF TMC WITHHOLDING ITS EARLIER SANCTION AS PER PLAN SUBMITTED TO IT. AS A RESULT OF THIS, THE DEVELOPER HAD TO INTER VENE IN THE WRIT PETITION FILED IN THE BOMBAY HIGH COURT AND EVENTUALLY THE DEVELOP ERS WERE ABLE TO GET THE GO AHEAD SIGNAL FROM THE TMC ON 19/10/2001 TO C OMPLETE THE PROJECT AS PER THE ORIGINALLY SANCTIONED PLAN. THIS INTERVE NING PERIOD (FROM 02/12/2000 TO 19/10/2001 ) DELAYED THE IMPLEMENTATI ON OF THE PROJECT BY THE DEVELOPER AND HAD ITS IMPACT ON THE PAYMENT SCH EDULE OF THE CONSIDERATION. IN SPITE OF THIS SERIOUS PROBLEM AND THE FINANCIAL CRISIS RESULTING THEREFROM, THE DEVELOPERS DID THEIR BEST TO PAY SUBSTANTIAL AMOUNT, I.E. MORE THAN 50 % OF THE CONSIDERATION TO THE APPELLANT BY FEBRUARY, 2002. THE APPELLANT WAS ALL THE TIME AWAR E OF THE PROBLEMS BEING FACED BY THE DEVELOPERS. THE APPELLANT HAS CONTESTED THAT THE MOU DID NOT CO NFER ANY 'LEGAL OWNERSHIP' OR ANY 'BENEFICIAL OWNERSHIP' ON THE DEV ELOPERS. IT HAS ALSO BEEN CONTESTED THAT THERE WAS A CLAUSE IN THE MOU W HICH EMPOWERED THE APPELLANT AND OTHER CO-OWNERS TO TERMINATE THE MOU IN THE EVENT OF NON COMPLIANCE OF ITS CLAUSES BY THE DEVELOPERS. IT HAS BEEN ARGUED THAT THIS PARTICULAR CLAUSE IN THE MOU MAKES IT A CONTRACT TH AT IS NOT COVERED UNDER THE PROVISIONS OF SECTION 53A OF THE TRANSFER OF PR OPERTY ACT. I DO NOT AGREE WITH THE ARGUMENTS OF THE APPELLANT ON THIS I SSUE. AFTER ENTERING INTO THE MOU WITH THE DEVELOPERS, THE APPELLANT AND OTHE R CO-OWNERS HAD ENTRUSTED ALL DEVELOPMENT RIGHTS TO THE DEVELOPERS AND IT IS NOT CORRECT TO SAY THAT NO RIGHTS WERE TRANSFERRED TO THE DEVELOPE RS. THE FACT OF ENTRUSTMENT OF ALL DEVELOPMENT RIGHTS UNTO THE DEVE LOPERS HAS BEEN CLEARLY MENTIONED IN CLAUSE 2 OF THE TERMS & CONDIT IONS EMBEDDED IN THE MOU AS THE OWNERS DO HEREBY JOINTLY AND EACH OF TH EM DO HEREBY SEVERALLY GRANT UNTO THE DEVELOPERS ON AS IS WHER E IS BASIS, ALL THE DEVELOPMENT RIGHTS IN RESPECT OF THE SAID PROPERTY. .... ' IN THIS CONTEXT, IT WOULD ALSO BE PERTINENT TO QUOTE A FEW LINES FROM T HE SHOW CAUSE LETTERS ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 8 ISSUED BY THE APPELLANT TO THE DEVELOPERS. THE SHOW CAUSE LETTERS WERE ISSUED BY THE APPELLANT ON 18/02/02 AND ON 24/03/03. IN PARA 1 OF THE LETTER DATED 18/02/02 , IT HAS BEEN WRITTEN AS UNDE R: MY CLIENTS HAVE INSTRUCTED ME TO STATE THAT BY A M EMORANDUM OF UNDERSTANDING EXECUTED IN THE MONTH OF DECEMBER '99 , YOU HAVE ACQUIRED THE RIGHTS OF DEVELOPMENT FROM MY CLIENTS IN RESPECT OF THEIR IMMOVABLE PROPERTY BEING A PIECE AND PARCEL OF LAND ADMEASURING 913.88 SQ. MTRS........... AGAIN IN PARA 1 OF THE LETTER DATED 24/03/03 / IT H AS BEEN WRITTEN AS UNDER: BY AND UNDER A MEMORANDUM OF UNDERSTANDING EXECUTED IN THE MONTH OF DECEMBER '99, MY CLIENT HAD ENTRUSTED UNTO YOU THE RIGHTS OF DEVELOPMENT IN RESPECT OF THEIR IMMOVABLE PROPERTY BEARING S NO 7 ......... FROM THE CONTENTS OF CLAUSE 2 OF TERMS & CONDITIONS OF THE MOU AND THE TWO SHOW CAUSE LETTERS, IT BECOMES CLEAR THAT A LL THE DEVELOPMENT RIGHTS OF THE LAND IN QUESTION WERE ENTRUSTED UPON THE DEVELOPERS BY THE MOU DATED 09/12/99. FURTHER THE DEVELOPERS HAD GIVE N A DETAILED REPLY TO THE APPELLANT'S LETTER DATED 24/03/03.- IN THEIR REPLY DATED 28/03/03, THE DEVELOPERS HAD EXPLAINED THE ISSUES REGARDING T HE IMPLEMENTATION OF THE PROJECT IN GREAT DETAIL. IT WOULD BE RELEVAN T TO QUOTE A FEW LINES FROM THE REPLY DATED 28/03/03 GIVEN TO THE APPELLAN T BY THE DEVELOPERS. WE HAVE AT NO POINT AVOIDED OR SOUGHT TO AVOID ANY OF OUR OBLIGATIONS UNDER THE AFOREMENTIONED MEMORANDUM OF UNDERSTANDIN G AND ARE WANTING TO COMPLY WITH EACH ONE OF THE OBLIGATIONS. IT IS ONLY DUE TO THE SAID DELAY CAUSED IN IMPLEMENTING THE DEVELOPMENT P ROJECT FOR NO FAULT OF OURS AND THE SAID UNWARRANTED LOSS , HARDSHIP AND P REJUDICE CAUSED TO US AND THE SHADOW CAST ON THE DEVELOPMENT PROJECT, THAT WE SOUGHT MORE TIME TO COMPLY WITH OUR OBLIGATIONS UNDER THE SAID MEMORANDUM OF UNDERSTANDING AND YOUR CLIENTS WERE KIND ENOUGH TO AGREE TO THE SAME. WE HAVE AT ALL TIMES APPRISED YOUR CLIENTS OF THE D EVELOPMENTS TAKING PLACE AND YOUR CLIENTS HAVE ALL ALONG BEEN KIND ENO UGH TO ACCOMMODATE US. YOUR CLIENTS ARE FULLY AWARE OF THE STAGE OF T HE CONSTRUCTION AND YOUR CLIENTS CALLING UPON US AT THIS STAGE OF THE DEVELO PMENT PROJECT DESPITE BEING FULLY AWARE OF THE FACTS TO COMPLY WITH THE R EQUISITIONS IS NOT JUSTIFIED. WITH REFERENCE TO YOUR SAID LETTER DATED 24' MARCH, 03, WE HAVE TO STATE THAT OUR CLIENT HAS ALREADY MADE SUBSTANTIAL PAYMENTS OF MORE THAN RUPEES ONE CRORE WHICH HAVE BEEN ACCEPTED BY YOUR C LIENTS. FURTHER, THE TIME TAKEN IN MAKING PAYMENTS HAS BEEN DUE TO CIRCU MSTANCES WHICH YOUR CLIENTS ARE VERY WELL AWARE OF. WE REQUIRE MORE TIM E TILL 15TH JUNE, 2003, TO MAKE PAYMENT OF THE BALANCE OUTSTANDING AMOUNT. THE CONSTRUCTION OF THE BUILDING ON THE SAID PROPERTY IS SUBSTANTIALLY COMP LETED AND WE WILL BE IN A POSITION TO HAND OVER THE POSSESSION OF THE PREMISE S TO BE HANDED OVER TO 0 ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 9 YOUR CLIENTS BY 31 ' MAY, 2003. IT IS NOT CORRECT TO STATE THAT WE HAVE COMMITTED ANY BREACHES AS IS SOUGHT TO BE SUGGESTED OR AT ALL. THE CIRCUMSTANCES IN WHICH THE PROJECT HAS BEEN IMPLEME NTED HAVE BEEN SET OUT HEREINABOVE AND YOUR CLIENTS ARE FULLY AWARE OF THE SAME. THE FACTS AND CIRCUMSTANCES OF THE MATTER DO NOT WARRANT TERM INATION OF THE CONTRACT OR THE INITIATION OF ANY LEGAL PROCEEDINGS AS MENTI ONED IN YOUR SAID LETTER OR OTHERWISE NOR IS THE SAME NECESSARY.' FROM THE FACTS NARRATED IN THE REPLY BY THE DEVELOP ERS, IT IS VERY CLEAR THAT THE INTENTIONS OF THE DEVELOPERS WERE TO IMPLEMENT THE PROJECT WITH REQUIRED SPEED AND TO PAY THE MONETARY CONSIDERATIO N TO THE APPELLANT AS AGREED UPON AND TO GIVE POSSESSION OF THE FLATS / S HOPS / PARKING SPACES ETC TO THE APPELLANT AT AN EARLY DATE. THIS SHOWS THAT THE DEVELOPERS WERE MORE THAN WILLING TO FULFILL ALL THE OBLIGATIO NS ENTRUSTED UPON THEM BY VARIOUS CLAUSES OF THE MOU DATED 09/12/99. THE APPELLANT WAS SATISFIED WITH THE REPLY AS NO FURTHER ACTION A PPEARS TO HAVE BEEN TAKEN BY HIM AGAINST THE DEVELOPERS. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CHATUR BHUJ DWARKADAS KAPADIA VS CIT (2003) 260 ITR 491 (BOMBAY) HAS VERY CLEARLY OBSERVED AS FOLLOWS: U/S 2(47)(V) , ANY TRANSACTION INVOLVING ALLOWING OF POSSESSION TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF THE CON TRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER O F PROPERTY ACT , WOULD COME WITHIN THE AMBIT OF SECTION 2(47)(V). TH AT , IN ORDER TO ATTRACT THE SECTION 53A, THE FOLLOWING CONDITIONS N EED TO BE FULFILLED. THERE SHOULD BE A CONTRACT FOR CONSIDERATION; IT SH OULD BE IN WRITING; IT SHOULD BE SIGNED BY THE TRANSFEROR ; IT SHOULD P ERTAIN TO THE TRANSFER OF IMMOVABLE PROPERTY; THE TRANSFEREE SH OULD HAVE TAKEN POSSESSION OF PROPERTY ; LASTLY TRANSFEREE SHOULD B E READY AND WILLING TO PERFORM THE CONTRACT. THAT EVEN ARRANGEMENTS CONFIRMING PRIVILEGES OF OWNERSHIP, WITHOUT TRANSFE R OF TITLE, COULD FALL U/S 2(47)(V) .' ALL INGREDIENTS OF THE HON'BLE BOMBAY HIGH COURT JU DGMENT ARE FULFILLED IN THIS CASE. THE MOST IMPORTANT INGREDIENT OF THE ABO VE JUDGMENT AND SECTION 2(47)(V) OF THE IT ACT IS THAT THE CONTRACT SHOULD BE OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPE RTY ACT. THE HON'BLE BOMBAY HIGH COURT HAS ANALYZED THIS INGREDIENT AND HAS COME TO THE CONCLUSION THAT THE MOST IMPORTANT THING TO BE SEEN IN THIS CONTEXT IS THE TRANSFEREE'S WILLINGNESS AND READINESS TO PERFORM H IS PART OF THE CONTRACT IN TERMS COVENANTED THERE UNDER. THE WILLINGNESS OF TH E TRANSFEREE HAS TO BE ABSOLUTE, UNCONDITIONAL AND UNQUALIFIED. IN THE INS TANT CASE, AS DISCUSSED ABOVE, THE DEVELOPERS WERE ALWAYS READY AND WILLING TO PERFORM THEIR PART OF THE CONTRACT AND THEIR BONAFIDE IN THIS RESPECT COULD NOT BE DOUBTED EVEN BY THE APPELLANT. THE DEVELOPERS' COMMITMENT T O THE PROJECT WAS ABSOLUTE UNCONDITIONAL AND UNQUALIFIED. THE MINOR D IFFERENCE IN PAYMENT SCHEDULE CREPT IN BECAUSE OF THE WRIT PETITION FILE D IN THE BOMBAY HIGH COURT. THIS SITUATION WAS BEYOND THE CONTROL OF THE DEVELOPERS AND THE CO- OWNERS OF THE LAND WERE AWARE OF THE SITUATION. THI S CANNOT BE TAKEN AS A TOOL TO DOUBT THE INTENTIONS OF THE DEVELOPERS. THE DEVELOPERS HAVE ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 10 COMPLIED WITH ALL THE PROVISIONS OF THE CONTRACT I. E. THE MOU. THIS FACT IS PROVED BY THEIR REPLY DATED 28/03/03 GIVEN TO THE A PPELLANT AND OTHER CO- OWNERS. THE APPELLANT AND THE OTHER CO-OWNERS WERE FULLY SATISFIED WITH THE REPLY GIVEN BY THE DEVELOPERS AS NO FURTHER ACT ION WAS TAKEN AGAINST THE DEVELOPERS BY THE APPELLANT AND OTHER CO-OWNERS AFTER RECEIPT OF THE REPLY. BY FOLLOWING THE DECISION OF THE BOMBAY HIG H COURT IN THE CASE OF CHATURBHUJ DWARKADAS KAPADIA (SUPRA), I FIND THAT T HE MOU DATED 09/12/99 CONFERRED ALL DEVELOPMENT RIGHTS UNTO THE DEVELOPERS AT THE TIME OF SIGNING OF THE MOU AND THE MOU CAN BE CONSIDERED AS A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSF ER OF PROPERTY ACT, 1882 AND AS SUCH THE PROVISIONS OF SECTION 2(47)(V) OF T HE IT ACT, 1961 ARE SQUARELY APPLICABLE IN THIS CASE. SINCE THE TRANSFE R WAS EFFECTED IN THE FY 99-00, THE AO WAS RIGHT IN TAXING THE LONG TERM CAP ITAL GAIN ARISING OUT OF THIS TRANSFER IN THE AY 2000-01. SINCE THE APPELLAN T HAD DISCLOSED THE LTCG IN AY 04-05, THE AO HAS TAXED IT ON PROTECTIVE BASIS IN THE INTEREST OF REVENUE. THE ADDITIONAL CONSIDERATION ACCRUED AN D WAS RECEIVED IN FY 03-04 AND HENCE HAS BEEN CORRECTLY TAXED IN AY 04-0 5. THE CASE LAWS QUOTED BY THE APPELLANT I.E. AJAY KUMAR SAH JAGATI VS ITO 55 LTD 348 (DELHI) AND R DALMIA (DECD) VS CIT 133 ITR 169 (DEL HI) ARE NOT VERY RELEVANT TO THE FACTS OF THE CASE. THE APPELLANT'S GROUND OF APPEAL NO 1 IS THEREFORE, DISMISSED. THE FINDING GIVEN BY THE TAX AUTHORITIES THAT THE A SSESSEE HAD GIVEN POSSESSION OF THE PROPERTY UPON ENTERING INTO THE MOU HAS NOT BEEN CONTROVERTED BY THE ASSESSEE. FURTHER, IT IS A FACT THAT THE ASSESSEES HAVE BEEN RECEIVING THE MONETARY PORTION OF THE CONSIDERATION IN INSTALMENT S AND THE SAID FACT WAS ALSO NOT DENIED BY THE ASSESSEES, THOUGH THE DEVELOPER D ID NOT GIVE THE INSTALMENTS AT THE AGREED POINT OF TIME AT THE AGREED AMOUNT. WE NOTICE THAT THE TAX AUTHORITIES HAVE MADE REFERENCE TO SEC. 2(47)(V) OF THE ACT AND THE ASSESSEES ARE DISPUTING ABOUT THE APPLICABILITY OF THAT SECTI ON TO THEM. HOWEVER, IN VIEW OF THE DECISION OF HONBLE JURISDICTIONAL BOMBAY HIGH COURT RENDERED IN THE CASE OF CHATURBHUJ DWARKADAS KAPADIA (SUPRA), WE ARE INCLIN ED TO REJECT THE SAID CONTENTIONS OF THE ASSESSEE. EVEN OTHERWISE, WE NO TICE THAT THE ASSESSEES CASE WOULD ALSO FALL U/S 2(47)(VI) OF THE ACT. HEN CE, WE ARE OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN ASSESSING THE CAPITAL GAIN IN ASSESSMENT YEAR 2000- 01. 11. SINCE WE HAVE UPHELD THE ASSESSMENT OF CAPIT AL GAIN ARISING ON ORIGINAL CONSIDERATION IN AY 2000-01, WE DIRECT THE ASSESSIN G OFFICER TO DELETE THE PROTECTIVE ASSESSMENT MADE IN THE HANDS OF THE ASSE SSEES IN AY 2004-05. ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 11 12. IN ASSESSMENT YEAR 2000-01, BOTH THE ASSESSE ES HAVE RAISED GROUNDS RELATING TO VALIDITY OF REASSESSMENT PROCEEDINGS ON THE GROUND THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT WITHOUT RECORDI NG REASONS. WE NOTICE FROM THE ORDER OF THE LD CIT(A) THAT THE FIRST APPELLATE AUTHORITY HAS GIVEN A FINDING THAT THE ASSESSING OFFICER HAS EXPLICITLY DISCUSSED ABOU T ASSESSING CAPITAL GAIN IN THE ASSESSMENT ORDER RELATING TO AY 2004-05 AND HAS ALS O RECORDED THE SAME REASONS BEFORE ISSUING NOTICE U/S 148 OF THE ACT FO R AY 2000-01. BEFORE US, THE ASSESSEE COULD NOT PRODUCE ANY MATERIAL TO CONTRADI CT THE FINDINGS GIVEN BY THE LD CIT(A). ACCORDINGLY WE DO NOT FIND ANY MERIT IN THE GROUNDS RELATING TO VALIDITY OF REASSESSMENT AND ACCORDINGLY DISMISS THEM. 13. THE NEXT ISSUE RELATES TO THE DETERMINATION OF SALE CONSIDERATION. WE NOTICE THAT THE ASSESSING OFFICER HAS DETERMINED TH E VALUE OF CONSTRUCTED AREAS ALLOTTED TO THE ASSESSEE BY ADOPTING THE FAIR MARKE T VALUE (FMV) DETERMINED BY THE STAMP AUTHORITY FOR STAMP DUTY PURPOSES. THE SAME WAS ALSO CONFIRMED BY THE LD CIT(A). BEFORE US, THE LD A.R SUBMITTED THA T THE VALUE OF CONSTRUCTED AREA ALLOTTED TO THE ASSESSEES SHOULD BE DETERMINED AS PER THE COST OF CONSTRUCTION OF THE PROPOSED BUILDING. IN SUPPOR T OF THIS PROPOSITION, HE TOOK SUPPORT FROM THE DECISION RENDERED BY HYDERABAD BEN CH OF TRIBUNAL IN THE CASE OF DEPUTY DIRECTOR OF INCOME TAX VS. G.RAGHURAM (2 010) (39 SOT 406). IN THE ABOVE SAID CASE, THE HYDERABAD BENCH HAS HELD THAT THE REAL CONSIDERATION RECEIVED BY THE ASSESSEE IN LIEU OF THE LAND FOREGO NE BY HIM IS ONLY THE COST OF CONSTRUCTION OF PROPOSED BUILDING TO THE EXTENT OF WHICH FALLS TO THE ASSESSEE IN THE ULTIMATELY CONSTRUCTED AREA AND NOT THE MARKET VALUE OF SUCH SHARE OF CONSTRUCTED AREA WHICH MAY BE AVAILABLE AFTER THE C OMPLETION OF CONSTRUCTION. 14. WE AGREE WITH THE VIEW EXPRESSED BY THE HYDE RABAD BENCH OF TRIBUNAL IN THE CASE REFERRED SUPRA. ACCORDINGLY WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE PASSED IN THE HANDS OF BOTH THE ASSESSEES AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO COMPUTE THE SALE CONSIDERATION BY FOLLOWING THE DECISION RENDERED IN THE CASE OF G . RAGHURAM (SUPRA). 15. THE NEXT ISSUE RELATES TO THE DETERMINATION OF FMV OF THE PROPERTY AS ON 1.4.1981. EVEN THOUGH THE ASSESSEE HAS FILED A REP ORT OBTAINED FROM THE ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 12 REGISTERED VALUER, THE AO IGNORED THE SAME AND PROC EEDED TO DETERMINE THE FMV OF THE PROPERTY ON THE BASIS OF INFORMATION OBT AINED FROM THE SUB-REGISTRAR. BEFORE US, THE LD A.R PLACED A NUMBER OF CASE LAWS TO CONTEND THAT THE FMV IS REQUIRED TO BE DETERMINED IN TERMS OF SEC. 55A OF T HE ACT AND HENCE THE AO WAS NOT JUSTIFIED IN REJECTING THE VALUATION REPORT FUR NISHED BY THE ASSESSEE. WE FIND MERIT IN THE SAID CONTENTIONS. WE NOTICE THAT THE AO DID NOT EXAMINE THE VALUATION REPORT OBTAINED BY THE ASSESSEE FROM A RE GISTERED VALUER. IN OUR VIEW, THE AO SHOULD HAVE EXAMINED THE SAME AND SHOULD HAV E GIVEN REASONS FOR NOT ACCEPTING THE SAME. IN THE ABSENCE OF THE SAME, WE ARE OF THE VIEW THAT THIS ISSUE ALSO REQUIRES FRESH EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE PASSED IN THE HANDS OF BOTH THE ASSESSEES AND RESTORE THE SAME TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE SAME AFRESH BY DULY CONSID ERING THE REPORT OF THE REGISTERED VALUER FURNISHED BY THE ASSESSEE. 16. THE NEXT ISSUE RELATES TO THE DEDUCTION CLAI MED U/S 54 OF THE ACT. BOTH THE ASSESSEES CLAIMED EXEMPTION U/S 54 OF THE ACT IN RE SPECT OF THE VALUE OF TWO FLATS EACH OBTAINED BY THEM. ACCORDING TO THE ASSESSEES, BOTH THE FLATS ARE CONTIGUOUS TO EACH OTHER AND SHOULD BE CONSIDERED A S ONE FLAT. HOWEVER, THE AO REJECTED THE SAID CLAIM BY HOLDING THAT THE SAID FLATS DO NOT FALL UNDER THE CATEGORY OF EITHER PURCHASE OR CONSTRUCTION STA TED IN SEC. 54 OF THE ACT. THE LD CIT(A) ALSO CONFIRMED THE SAME. 17. BEFORE US, THE LD A.R PLACED RELIANCE ON THE DECISION RENDERED BY THE CO- ORDINATE BENCH OF TRIBUNAL IN THE CASE OF JATINDER KUMAR MADAN VS. ITO (2012)(21 TAXMANN.COM 316) TO CONTEND THAT THE TAX AUTHORITIES ARE WRONG. WE NOTICE FROM THE SAID DECISION THAT THE CO-ORDINATE BENCH OF TRIBUNAL HAS HELD THAT THE FLATS OBTAINED UNDER DEVELOPMENT AGREEMENT IS E LIGIBLE FOR DEDUCTION U/S 54 OF THE ACT IF THE NEW FLAT HAD BEEN CONSTRUCTED WIT HIN A PERIOD OF 3 YEARS FROM THE DATE OF TRANSFER. THUS, WE NOTICE THAT THE VIEW EN TERTAINED BY THE TAX AUTHORITIES HAVE BEEN REJECTED BY THE TRIBUNAL. HENCE, THIS IS SUE ALSO REQUIRES EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE PASSED IN THE HANDS OF BOTH T HE ASSESSEES AND RESTORE THE ITA. NO1290/MUM/2008 AND OTHER TWO APPEALS 13 SAME TO THE FILE OF THE AO WITH THE DIRECTION TO EX AMINE THE SAME AFRESH BY DULY CONSIDERING THE DECISION RENDERED IN THE CASE OF JA TINDER KUMAR MADAN (SUPRA). THE AO ALSO SHOULD CONSIDER THE CLAIM OF THE ASSESS EE THAT BOTH THE FLATS SHOULD BE CONSIDERED AS SINGLE RESIDENTIAL HOUSE FOR THE P URPOSE OF ALLOWING DEDUCTION U/S 54 OF THE ACT. 18. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSESSEES ARE TREATED AS PARTLY ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 31ST DEC , 2014. '( # )* +, 31ST DEC,2014 ( ' $ - SD SD ( /SANJAY GARG) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ) # $ MUMBAI: 31ST DEC,2014. . . ./ SRL , SR. PS !'#$ %$&' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. # .% ( ) / THE CIT(A)- CONCERNED 4. # .% / CIT CONCERNED 5. /0 %1 , & 1 , ) # $ / DR, ITAT, MUMBAI CONCERNED 6. 2 3$ / GUARD FILE. 4 # / BY ORDER, TRUE COPY 5 (ASSTT. REGISTRAR) & 1 , ) # $ /ITAT, MUMBAI