The ITO, Ward-2(4), Baroda V. M/s. Paramukh Associates, Baroda

ITA 1299/AHD/2005

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1785 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-12-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 05-05-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M C PANDIT
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.1299/AHD/2005 ASSESSMENT YEAR:2001-02 DRAFTED:17.12.09 INCOME TAX OFFICER, WARD-2(4), 2 ND FLOOR, AAYKAR BHAVAN, RACE COURSE CIRCLE, BARODA V/S . M/S. PRAMUKH ASSOCIATES, 2 KALYAN SOCIETY, AKOTA ROAD, BARODA, PAN NO.AAEFP683A (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI M.C. PANDIT, SR.DR RESPONDENT BY:- URVASHI SHODHAN, AR DATE OF ORDER RESERVED: 08/12/2009 O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE IS ARISING OUT OF THE O RDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-V, BARODA IN APPEAL NO.CAB/III /V-34/04-05 DATED 09-02-2005. THE ASSESSMENT WAS FRAMED BY THE INCOME TAX OFFICER , WARD-2(4), BARODA U/S.143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 31-03-2004 FOR THE ASSESSMENT YEAR 2001 -02. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FAIR LY STATED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THIS TRIBUNAL I N THE CASE OF M/S. RADHYA DEVELOPERS & OTRS. IN ITA NO.2482/AHD/2006 AND OTHERS DATED 29-06-2007. WE REFERRED TO THE FOLLOWING PARAS OF THE TRIBUNAL, WH EREIN THE TRIBUNAL HAS CONSIDERED THE ISSUE IN GREAT DETAIL THE ELIGIBILITY U/S.80IB( 10) BY FOLLOWING OBSERVATIONS:- 32 IN THESE CIRCUMSTANCES, IN OUR OPINION, THE ASS ESSEE IS ENTITLED TO DEDUCTION U/S. 80IB(10) AS IT HAD DEVELOPED AND BUI LT THE HOUSING PROJECT; IT HAD STARTED CONSTRUCTION AFTER 1 ST DAY OF APRIL 1998; THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF ONE ACRE AND THE MAXIMUM BUILT UP AREA OF THE RESIDENTIAL UNITS ARE NOT MORE THAN 1500 SQ. FT., THE PROPERTY BEING SITUATED IN BARODA, A CITY OTHER THAN DELHI A ND MUMBAI. ITA NO.1299/AHD/2005 A.Y. 2001-02 ITO WD-2(4) BARODA V. M/S. PRAMUKH ASSOCIATES PAGE 2 FURTHER, HE REFERRED TO THE VARIOUS PARAS OF THE TR IBUNALS ORDER AND STATED THAT THE TRIBUNAL HAS CONSIDERED VARIOUS CASES LAWS AND PERT INENT OBSERVATIONS READ AS UNDER:- 43 IN VIEW OF DECISION OF THE SUPREME COURT IN THE CASE OF MYSORE MINERALS LTD.(SUPRA), WHEREIN THE TERM OWNED IN S ECTION 32 HAS BEEN GIVEN A WIDER MEANING BY HOLDING THAT IF AN ASSESSE E WAS IN POSSESSION OF A PROPERTY AND HAD ACQUIRED DOMINION OVER IT TO THE EXCLUSION OF OTHERS, HE WOULD BE ENTITLED DEPRECIAT ION U/S.32 IRRESPECTIVE OF THE LEGAL TITLE. IN THE PRESENT CAS E THE DEVELOPMENT AGREEMENT AND AGREEMENT TO SALE THE UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS AND CLAIMING DEDUCTION OF PROFITS FROM SUCH HOUSING PROJECT, THERE IS, DEFINITELY, A DOMINION O F THE DEVELOPER OVER THE LAND TO THE EXCLUSION OF OTHERS INASMUCH AS POS SESSION OF THE LAND IS GIVEN TO THE DEVELOPER BY THE LAND-OWNERS TO CAR RY OUT THE CONSTRUCTION ACTIVITY OF THE HOUSING PROJECT. THE A SSESSEE-DEVELOPER HAS COMPLIED WITH ALL THE CONDITIONS AS PROVIDED U/ S.80-IB (10) OF THE ACT, SO AS TO CLAIM DEDUCTION. THE ASSESSEE HAS ALS O PASSED ON THE PART CONSIDERATION FOR ACQUIRING THE LAND THROUGH A N AGREEMENT TO SALE AND IN VIEW OF THE PROVISIONS OF SECTION 2(47 ) READ WITH SECTION 53-A OF THE TRANSFER OF PROPERTY ACT, 1882, THE ASS ESSEE HAS COMPLETELY PERFORMED HIS PART OF THE CONTRACT AND D EVELOPED THE HOUSING PROJECT AND TRANSFERRED THE FLATS/TENEMENTS TO THE BUYERS IN VIEW OF AGREEMENT TO SALE AS WELL AS DEVELOPMENT AGREEMENT. IT SHOWS THAT THE ASSESSEE WAS IN FULL POSSESSION OF T HE LAND FOR THE DEVELOPMENT OF HOUSING PROJECT AND HAS CARRIED OUT ALL THE ACTIVITIES OF A COMPLETE HOUSING PROJECT BY TAKING ALL RISKS ASSO CIATED WITH THIS BUSINESS. THE ASSESSEE IS ENGAGED IN COMPLETE INFR ASTRUCTURE INCLUDING ENGAGING ARCHITECTS, STRUCTURAL CONSULTAN TS, DESIGNING AND PLANNING OF THE HOUSING SCHEMES, PAYMENT OF DEVELOP MENT CHARGES, OBTAINING NECESSARY PERMISSIONS, ON BEHALF OF THE L AND OWNERS, GOT THE PLANS APPROVED, HIRING OF MACHINERY AND EQUIPMENTS, HIRING ENGINEERS, APPOINTING CONTRACTORS, ETC. 44 AS DISCUSSED ABOVE AND IN VIEW OF THE CASE-LAW OF THE SUPREME COURT IN THE CASE OF MYSORE MINERALS LTD (SUPRA), W HEREIN IT HAS BEEN CATEGORICALLY OBSERVED AS REGARDS TO OWNERSHIP THAT ANYONE IN POSSESSION OF PROPERTY IN HIS OWN TITLE EXERCISING SUCH DOMINION OVER THE PROPERTY AS WOULD ENABLE OTHERS BEING EXCLUDED THERE FROM AND HAVING THE RIGHT TO USE AND OCCUPY THE PROPERTY AND /OR TO ENJOY ITS USUFRUCT IN HIS OWN RIGHT WOULD BE THE OWNER OF THE BUILDINGS THOUGH A FORMAL DEED OF TITLE MIGHT NOT HAVE BEEN EXECUTED A ND REGISTERED AS CONTEMPLATED BY THE TRANSFER OF PROPERTY ACT, THE R EGISTRATION ACT, ETC. IN THE PRESENT CASE BEFORE US, BY VIRTUE OF AGREEM ENT TO SALE AND DEVELOPMENT AGREEMENT, THE ASSESSEE HAS ACQUIRED DOMINION OVER THE LAND TO THE EXCLUSION OF OTHERS AND HE HAS COMP LETED THE PROJECT IN TERMS AND CONDITIONS LAID DOWN U/S.80-IB(10) OF THE ACT, TO CLAIM DEDUCTION ON THE PROFIT DERIVED FROM CONSTRUCTION AND DEVELOPMENT OF RESIDENTIAL HOUSING PROJECT. THERE IS NO EXPLICIT C ONDITION ENUMERATED IN SECTION 80-IB(10) OF THE ACT AS REGARDS TO REQUIRE MENT OF OWNERSHIP FOR ITA NO.1299/AHD/2005 A.Y. 2001-02 ITO WD-2(4) BARODA V. M/S. PRAMUKH ASSOCIATES PAGE 3 THE CLAIM OF DEDUCTION. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LEGAL PROPOSITION LAID DOWN BY THE SUPREME COURT IN THE CASE OF MYSORE MINERALS LTD.(SUPRA), WE HOLD TH AT THE ASSESSEE IS ENTITLED FOR CLAIM OF DEDUCTION ON THE PROFIT DERIV ED FROM CONSTRUCTION AND DEVELOPMENT OF RESIDENTIAL HOUSING PROJECT. IN VIEW OF THE ABOVE, THE LD. COUNSEL FOR THE ASSES SEE CONTENDED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAI NST THE REVENUE. 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE SUBMITTED THE RATIO LAID DOWN IN THE CASE OF RADHE DEVELOPERS AND OTHERS IS NOT APPLICABLE TO THE FACTS OF THE IMPUGNED CASE. THE SALIENT FEATURES OF THE FACT AS EXISTED IN THE CASE OF RADHE DEVELOPERSS DECISIONS ARE AS UNDER:- 1. THERE WAS AN AGREEMENT TO SALE IN FAVOUR OF ASSE SSEE DEVELOPER AND POSSESSION WAS GIVEN BY THE LAND OWNER. SALE CO NSIDERATION WAS ALSO PAID. 2. ALL APPROVALS / PERMISSIONS WERE OBTAINED BY POW ER OF ATTORNEY OF LAND OWNER I.E. ASSESSEE. 3. RIGHT TO TAKE / PERUSE ALL GOVT. / QUASI GOVT. P ROCEEDINGS RESTED WITH THE ASSESSEE DEVELOPER BY AN AGREEMENT. 4. FOR ALL THESE BUNDLES OF RIGHTS THE ASSESSEE DEV ELOPER HAD PAID CONSIDERATION TO LAND OWNER AND OBTAINED ALL RIGHTS INCLUDING OWNERSHIP RIGHTS FURTHER THE LD. DR DRAWN OUR ATTENTION TO THE FINDI NGS OF THE ITAT ORDER IN PARA-18 , WHICH IS THE FOUNDATION OF THE DECISION AND WHICH R EADS AS UNDER:- . FROM THE CLAUSES OF THE DEVELOPMENT AND CONST RUCTION AGREEMENTS AS WELL A AGREEMENT FOR SALE, BOTH DATED 18.05.2000 , EXTRACTED ABOVE WE OBSERVE THAT THESE TWO AGREEMENTS EFFECTIVELY TRANS FER TO THE ASSESSEE-FIRM ALL THE RIGHTS OF DEVELOPMENT AND CONSTRUCTION AND TO DEAL WITH THE LAND FOR CONSIDERATION PAYABLE WITHIN A STIPULATED TIME; THA T THE ASSESSEE HAD BEEN PUT IN POSSESSION OF THE LAND OF THE TERMS AND COND ITIONS AS MENTIONED IN THESE TWO AGREEMENTS; THAT THE ASSESSEE-FIRM HA ALS O PAID CONSIDERATION OF RS.56 LACS DURING THE TWO F.YRS. I.E. 2000-01 AND 2 01-02; THAT THE ASSESSEE- FIRM HAS TO OBTAIN NECESSARY APPROVALS FROM THE LOC AL AUTHORITIES; I.E., BMC ON BEHALF OF THE LAND OWNERS AND ALL THE EXPENSES FOR SUCH PURPOSES ARE TO BE INCURRED BY THE ASSESSEE; THAT THE ASSESSEE-FIRM HA S ENGAGED THE FIRM OF ARCHITECT AND ALSO INCURRED EXPENSES TOWARDS THE CH ARGES PAYABLE TO CORPORATION, ETC., FOR OBTAINING THE APPROVALS; THA T EVEN FROM THE BOOKS OF ACCOUNT, IT IS NOTICED THAT FOR OBTAINING THE APPRO VAL, THE ASSESSEE-FIRM HAS PAID THE DEVELOPMENT CHARGES TO VARIOUS REGULATING AGENCIES I.E. AUDA, BMC AND GEB (GUJARAT ELECTRICITY BOARD), ETC. AND THAT THESE EXPENSES ARE INCURRED BY THE ASSESSEE-FIRM AND THE ASSESSING OFF ICER HAS BROUGHT OUT THE COMPLETE DETAILS YEAR-WISE IN HIS ASSESSMENT ORDERS AT PAGE NO.5 READING AS UNDER:- .. ITA NO.1299/AHD/2005 A.Y. 2001-02 ITO WD-2(4) BARODA V. M/S. PRAMUKH ASSOCIATES PAGE 4 THE LD. DR FURTHER STATED THAT THE DECISION IMPARTE D IN THE CASE OF RADHE DEVELOPERS IS BASED ON FACTS DISCUSSED IN THAT CASE. NEEDLES S TO SAY THAT THE APEX COURT TIME AND AGAIN HAD HELD THAT A RATIO BECOMES A BINDING PRECEDENT IN THE CONTEXT OF GIVEN FACTS, NOT IN ISOLATION OF ACTS. T HE FACTS OF THE IMPUGNED APPEAL ARE NOT SIMILAR WITH THE FACTS OF THE SAID CASE DISCUSS ED AS ABOVE. ON THE CONTRARY, IT LEADS ADVERSE INFERENCE AGAINST THE ASSESSEE AND DE SERVES REJECTION OF ASSESSEES CLAIM U/S.80IB ON THE FACTS OF THE CASE OF RADHE DEVELOPERS ETC. THE LD. DR ALSO REFERRED TO THE PRINCIPALS LAID DOWN IN THE RECENT CASE OF HON'BLE APEX COURT IN THE CASE OF FAQIR CHAND GULATI V. UPPAL AGENCIES PVT. LTD. & A NR. ( CIVIL APPEAL NO.3302 OF 2005 ) DATED 10-07-2008 AND STATED THAT THE FOLLOWING IS SUES WERE RAISED:- I) A DEVELOPMENT AGREEMENT IS ONE WHERE THE LAND-HO LDER PROVIDES THE LAND. THE BUILDER PUTS UP A BUILDING. THEREAFTER, THE LAND OWNER AND BUILDER SHARE THE CONSTRUCTED AREA. THE BUILDER DELIVERS TH E OWNERS SHARE TO THE LAND-HOLDER AND RETAINS THE BUILDERS SHARE. THE LAND-HOLDER SELLS / TRANSFERS UNDIVIDED SHARE/S IN THE LAND CORRESPONDING TO THE BUILDERS SHARE OF THE BUILDING TO THE BUILDER OR HIS NOMINEES. THE LAND- HOLDER WILL HAVE NO SAY OR CONTROL IN THE CONSTRUCTION OF HAVE ANY SAY AS TO W HOM AND AT WHAT COST THE BUILDERS SHARE OF APARTMENTS ARE TO BE DEALT WITH OR DISPOSED OF. SUCH AN AGREEMENT IS NOT A JOINT VENTURE IN THE LEGAL SEN SE. IT IS A CONTRACT FOR SERVICES. II) ON THE OTHER HAND, AN AGREEMENT BETWEEN THE OWN ER OF A LAND AND A BUILDER, FOR CONSTRUCTION OF APARTMENTS AND SALE OF THOSE OF APARTMENTS SO AS TO SHARE THE PROFITS IN A PARTICULAR RATIO MAY BE A JOINT VENTURE, IF THE AGREEMENT DISCLOSES AN INTENT THAT BOTH PARTIES SHA LL EXERCISE JOINT CONTROL OVER THE CONSTRUCTION / DEVELOPMENT AND BE ACCOUNTA BLE TO EACH OTHER FOR THEIR RESPECTIVE ACTS WITH REFERENCE TO THE PROJECT . III) THE TITLE OF THE DOCUMENTS IS NOT DETERMINATIV E OF THE NATURE AND CHARACTER OF THE DOCUMENT, THOUGH THE NAME MAY USUA LLY GIVE SOME INDICATION OF THE NATURE OF THE DOCUMENT. THE USE OF THE WORDS JOINT VENTURE OR COLLABORATION IN THE AGREEMENT WILL NOT MAKE THE TRANSACTION A JOINT VENTURE, IF THERE ARE NO PROVISIONS FOR SHARED CONTROL AND L OSSES. IN VIEW OF THESE ARGUMENTS, THE LD. DR STATED THAT NEITHER THE ASSESSING OFFICER NOR THE CIT(A) HAS GONE INTO THE AGREEMENTS AND BUILDER S DEVELOPMENT AGREEMENT, FROM WHERE IT CAN BE INFERRED THAT THE ASSESSEE IS A DEVELOPER OR A CONTRACTOR. ACCORDINGLY, HE REQUESTED THE BENCH TO SET ASIDE TH E ISSUE FOR VERIFICATION OF DIFFERENT AGREEMENTS AND DOCUMENTS IN THE LIGHT OF THE JUDGME NT OF HON'BLE APEX COURT IN THE CASE OF FAQIR CHAND GULATI (SUPRA). ITA NO.1299/AHD/2005 A.Y. 2001-02 ITO WD-2(4) BARODA V. M/S. PRAMUKH ASSOCIATES PAGE 5 4. WE HAVE HEARD THE LD. DR AND GONE THROUGH THE FA CTS AND CIRCUMSTANCES OF THE CASE. WE HAVE ALSO PERUSED THE CASE LAWS CI TED BY BOTH THE SIDES AND ALSO GONE THROUGH THE ASSESSMENT ORDER AS WELL AS THE OR DER OF CITIA). IT IS NOTICED FROM THE ORDERS OF THE LOWER AUTHORITIES THAT THEY HAVE NOT GONE INTO THE BUILDER AGREEMENT OR JOINT VENTURE AGREEMENTS. THEY HAVE NOT ASCERTA INED WHETHER THE ASSESSEE IS A DEVELOPER OR A CONTRACTOR. IN THE ABSENCE OF THESE FINDINGS, WE ARE OF THE VIEW THAT THE ISSUE NEEDS RE-VERIFICATION IN THE LIGHT OF HON 'BLE APEX COURT JUDGMENT IN THE CASE OF FAQIR CHAND GULATI (SUPRA). SIMILARLY, THE AHMEDABAD TRIBUNAL IN ANO THER CASES HAVE ALSO LAID DOWN CERTAIN PRINCIPLES IN THE LIGHT OF HON'BLE APEX COURT JUDGMENT IN THE CASE OF FAQIR CHAND GULATI (SUPRA) AND A.O IS ALSO REQUEST TO CONSIDER THE CASE LAW OF THIS TRIBUNAL IN THE CASE OF ITO & OTRS. V.SHAKTI CORPORATION BARODA AND OTRS. IN ITA NO.1503/AHD/2008 DATED 07-11-2008. THE TRIBUNAL IN THESE CASES HAS HELD AS UNDER:- 16.THE FACTS INVOLVED IN THE CASE OF THE ASSESSEE ARE SIMILAR TO THE FACTS IN THE CASE OF RADHE DEVELOPERS (SUPRA) A ND ACCORDINGLY WE ARE OF THE VIEW THAT THE ASSESSEE HA S ACQUIRED THE DOMINANT OVER THE LAND AND HAS DEVELOPED THE HOUSIN G PROJECT BY INCURRING ALL THE EXPENSES AND TAKING ALL THE RISKS INVOLVED THEREIN. WE MAY MENTION HERE THAT, IN OUR OPINION, THE DECISION IN THE CASE OF RADHE DEVELOPERS (SUPRA) WILL NOT APPLY IN A CASE WHERE THE ASSESSEE HAS ENTERED INTO THE AGREEMENT F OR A FIXED REMUNERATION MERELY AS A CONTRACTOR TO CONSTRUCT OR DEVELOP THE HOUSING PROJECT ON BEHALF OF THE LANDOWNER. THE AGR EEMENT ENTERED INTO IN THAT CASE WILL NOT ENTITLE THE DEVE LOPER TO HAVE THE DOMINANT CONTROL OVER THE PROJECT AND ALL THE RISKS INVOLVED THEREIN WILL VEST WITH THE LANDOWNER ONLY. THE INTE REST OF THE DEVELOPER WILL BE RESTRICTED ONLY FOR THE FIXED REM UNERATION FOR WHICH HE WOULD BE RENDERING THE SERVICES. THE DECIS ION IN THE CASE OF RADHE DEVELOPERS (SUPRA) HAS NOT DEALT WITH SUCH SITUATION. THE PROPOSITION OF LAW LAID DOWN IN THE CASE OF RADHE DEVELOPERS CANNOT BE APPLIED UNIVERSALLY WITHOUT LO OKING INTO THE DEVELOPMENT AGREEMENT ENTERED INTO BY THE DEVELOPER ALONG WITH THE LANDOWNER. IN THE CASE OF SHAKTI CORPORATION SI NCE THE ASSESSEE HAS FILED COPY OF THE DEVELOPMENT AGREEMEN T AND CRUX OF THE AGREEMENT IS THAT THE ASSESSEE HAS PURCHASED THE LAND AND HAS DEVELOPED THE HOUSING PROJECT AT ITS OWN, T HEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE WILL BE ENTITLED FOR THE DEDUCTION U/S 80IB(10). THE DECISION OF THE HON'BLE SUPREME C OURT IN THE CASE OF FAQIR CHAND GULATI (SUPRA) WILL NOT ASSIST THE REVENUE, AS THE AGREEMENT IS NOT SHARING OF THE CONSTRUCTED ARE A. IN OTHER CASES THE COPY OF AGREEMENT SINCE HAS NOT BEEN SUBM ITTED BEFORE US, IF SUBMITTED , THE TERMS AND CONDITIONS OF THE AGREEMENT WERE ITA NO.1299/AHD/2005 A.Y. 2001-02 ITO WD-2(4) BARODA V. M/S. PRAMUKH ASSOCIATES PAGE 6 NOT SPECIFICALLY ARGUED BEFORE AND PLACED BEFORE US , WE THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY TO BOTH TH E PARTIES SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE ALL OTHER APPEA LS TO THE FILE OF THE AO WITH THE DIRECTION THAT THE AO SHALL LOOK IN TO THE AGREEMENT ENTERED INTO BY EACH OF THE ASSESSEES WIT H THE LANDOWNER AND DECIDE WHETHER THE ASSESSEE HAS IN FA CT PURCHASED THE LAND FOR A FIXED CONSIDERATION FROM T HE LANDOWNER AND HAS DEVELOPED THE HOUSING PROJECT AT ITS OWN CO ST AND RISKS INVOLVED IN THE PROJECT. IN CASE THE AO FINDS THAT PRACTICALLY THE LAND HAS BEEN BOUGHT BY THE DEVELOPER AND DEVELOPER HAS ALL DOMINANT CONTROL OVER THE PROJECT AND HAS DEVELOPED THE LAND AT HIS OWN COST AND RISKS, THE AO SHOULD ALLOW THE DED UCTION TO THE ASSESSEE U/S 80IB(10). IN CASE THE AO FINDS THAT TH E DEVELOPER HAS ACTED ON BEHALF OF THE LANDOWNER AND HAS GOT TH E FIXED CONSIDERATION FROM THE LANDOWNER FOR THE DEVELOPMEN T OF THE HOUSING PROJECTS, THE ASSESSEE SHOULD NOT BE ALLOWE D DEDUCTION U/S 80IB(10) TO THE ASSESSEE. 5. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE SET ASIDE THIS APPEAL TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION THAT HE WILL CONSIDER THE PRINCIPLES LAID DOWN BY THE HON'BLE APEX COURT IN THE CASE OF FAQIR CHAND GULATI (SUPRA) AS WELL AS BY THIS TRIBUNAL IN THE CASE OF SHAKTI CORPORATION BARODA (SUPRA) AND DECIDE THIS ISSUE AFRESH IN ACCORDANCE WITH LAW AND IN THE LIGH TS OF FACTS AND CIRCUMSTANCES OF THE CASE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 18/12/2009 SD/- SD/- (N.S.SAINI) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED : 18/12/2009 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- V, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD