Amal Sheth, Cuttack V. ITO, Cuttack

ITA 163/CTK/2012

• Counselvise Citation: 16322114 RSA 2012
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 27-02-2012
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Assessee Lawyers: D K SETHK SETH ARS
• Keywords: Gift; Opportunity of being heard
• Section: 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM, AND SHRI K.S.S.PRASAD RAO, JM ITA NO. 163/CTK/2012 (ASSESSMENT YEAR 2006 - 07) AMAL SHETH, NAYA SARAK, CUTACK 753 002 PAN: AGCPS 2147 J VERSUS INCOME - TAX OFFICER, WARD 2(3), CUTTACK. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI D.K.SETH/K.SETH, ARS FOR THE RESPONDENT SHRI A.BHATTACHARJEE, DR DATE OF HEARING : 15.03.2012 DATE OF PRONOUNCEMENT : 02.04.2012 ORDER SHRI K.S.S.PRASAD RAO, JM : THIS APP EAL IS FILED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) DT.31.1.2012 FOR THE ASSESSMENT YEAR 2006 - 07 IN THE CASE OF THE ASSESSEE. 2. THE ASSESSEE HAS PLEADED THE FOLLOWING ISSUES IN ITS GROUNDS OF APPEAL. 1. FOR THAT THE ADDITION OF 24,94,994 AS MADE UNDER HEAD INCOME FROM OTHER SOURCES IS UNWARRANTED AND UNJUSTIFIED . THE RECEIPT OF GIFT CLAIMED AS EXEMPT U/S.56 OF THE INCOME TAX ACT. SHOULD NOT HAVE BEEN TREATED AS TAXABLE FOR THE SAME WAS RECEIVED FROM THE PATERNAL UNCLE OF THE A PPELLANT. 2. FOR THAT THE LEARNED COMMISSIONER IS NOT JUSTIFIED TO RE - CONFIRM THE ASSESSMENT AND DISMISS THE APPEAL. 3. FOR THAT THE LEARNED COMMISSIONER FAILED TO APPRECIATE THE FACTS AND EVIDENCES FURNISHED EARLIER AND ACCORDINGLY THE DECISION OF THE L EARNED COMMISSIONER IS IMPROPER AND UNJUSTIFIED . 4. FOR THAT THE FACT OF GIFT RECEIVED FROM PATERNAL UNCLE KIRIT SHETH SHOULD HAVE BEEN ACCEPTED AS GENUINE AND PROPER. 3. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAISED IN THE APPEAL AND THEIR LE GAL IMPLICATIONS. 4. ON CAREFUL CONSIDERATION OF THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL AND ANALYZING THE SAME IN THE LIGHT OF THE SUBMISSIONS OF BOTH THE PARTIES, THE UNDISPUTED FACTS RELATING TO THE ISSUES ARE THAT ORIGINAL THE ASSESSMENT ITA NO.163/CTK/2012 2 ORDER WAS PASSED ON 13.12.2008 AGAINST WHICH THE ASSESSEE FILED FIRST APPEAL BEFORE THE CIT(A), WHICH WAS DISPOSED BY THE CIT(A) BY UPHOLDING THE ORDER OF THE ASSESSING OFFICER VIDE HIS ORDER DT.28.2009. AGGRIEVED BY THIS ORDER, THE ASSESSEE CAME UP IN APPEAL BEFORE THE TRIBUNAL AND IN ITA NO.240/CTK/2009 ORDER DT.11.2.2010 THE TRIBUNAL RESTORED THE MATTER TO THE LEARNED CIT(A) WITH A DIRECT TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO ESTABLISH WHETHER GIFT HAS BEEN GIVEN BY SRI KIRIT KUMAR SHETH OR SHRI SANGAM SHETH TO THE SATISFACTION OF THE DEPARTMENT OF COURSE BY AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE SAME N ACCORDANCE WITH LAW. IN PARA 7 OF THAT ORDER, IT WAS OBSERVED BY THE TRIBUNAL THAT THE ONLY DISPUTE IS THAT INITIAL LY IT WAS STATED THAT THE GIFT WAS GIVEN BY MR. SANGAM SHETH, WHO STAYS AT ABU DHABI (UAE). LATER ON IT WAS STATED THAT THE AMOUNT WAS REMITTED BY SANGAM SHETH UPON INSTRUCTION OF HIS FATHER KIRIT KUMAR SHETH WHO STAYS AT CUTTACK. IN SUPPORT OF IT AN AFFID AVIT WAS FILED BY KIRIT KUMAR SHETH THAT THE AMOUNT WAS GIVEN BY HIS SON UPON HIS INSTRUCTION. THIS FACT IS ALSO NOT DISPUTED. THE DEPARTMENT HA DOUBTED THE CREDITWORTHINESS OF SHRI SANGAM SHETH AND SHIFTING OF STAND, WHEREAS THE LEARNED CIT(A) HA OBSERVE D IN HIS FIRST ORDER THAT THE CAPACITY OF KIRIT KUMAR SETH TO HAVE GIVEN THE GIFT COULD NOT BE PROVED AND CAPACITY OF SANGAM SHETH TO HAVE ADVANCED SUCH GIFT WAS ALSO NOT PROVED. BASING ON THE ORDER OF THIS TRIBUNAL, THE LEARNED CIT(A) HAS STARTED RECONSI DERING THE CLAIM OF GIFT OF 24,94,994 IN QUESTION. IN PARA 3 OF THE IMPUGNED ORDER, THE LEARNED CIT(A) HAS OBSERVED THAT THE ASSESSEE HAS NOT COMPLIED THE FIRST NOTICE OF HEARING THOUGH REPRESENTED THROUGH HIS AUTHORIZED REPRESENTATIVE. THEREAFTER SECOND NOTICE WAS ISSUED AND IN RES PONSE TO THE SAME, THE AR OF THE ASSESSEE APPEARED BEFORE AND FILED AN AFFIDAVIT DT.26.12.2008 OF KIRIT KUMAR SETH WHICH WAS ALSO FILED BEFORE THE ASSESSING OFFICER. THEREAFTER I N PARA 4 OF THE IMPUGNED ORDER, THE ITA NO.163/CTK/2012 3 LEARNED CIT(A) OBSERVED THAT THE ASSESSEE COULD NOT PRODUCE EVIDENCE TO ESTABLISH THE CAPACITY OF THE DONOR KIRIT KUMAR SETH OR SANGAM SHETH AND SINCE THE SUBMISSIONS MADE BY THE AR OF THE ASSESSEE BEFORE HIM IS THE SAME WHICH WAS BEFORE HIS PREDECESSOR, HE CONFIRMED THE ADDITION MADE BY THE ASSE SSING OFFICER U/S.56 OF THE I.T.ACT AND DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THIS ORDER, THE ASSESSEE HAS COME IN APPEAL BEFORE THE TRIBUNAL. 5. DURING THE COURSE OF HEARING, THE LEARNED AR OF THE ASSESSEE HAS BROUGHT OUR ATTENTION TO THE AFF IDAVIT DT.26.12.2008 OF KIRIT KUMAR SETH WHEREIN HE HAS CATEGORICALLY STATED THAT THE ASSESSEE IS HIS NEPHEW I.E., SON OF HIS ELDER BROTHER LATE SRI SUSHIL KUMAR SHETH AND HE INTENDED TO GIVE A GIFT OF A CONSIDERABLE AMOUNT TO HIS SAID NEPHEW AND ACCORDING LY HE ASKED HIS SON SANGAM SHETH TO SEND A SUM OF 25 LAKH S APPROXIMATELY TO HIS SAID NEPHEW AT CUTTACK. THAT UPON HIS INSTRUCTION HIS SON SANGAM TRANSFERRED A SUM OF 24,94,994 TO HIS SAID NEPHEW FROM DUBAI. THE MONEY WAS DIRECTLY TRANSFERRED TO HIS NEPHE W (ASSESSEE) AS HE DID NOT HAVE ANY BANK ACCOUNT AND NOT ASSESSED TO I.T. AS HE IS FULLY PASSING A RETIRED LIFE. AS SUCH, IT IS HE AND ONLY HIMSELF HAD MADE THE GIFT AS HIS SON DOES NOT HAVE ANY DIRECT RELATIONSHIP WITH THE ASSESSEE. HIS SON IS STRAYING AT DUBAI SINCE LAST 15 YEARS AND HAD NEVER MET AMAL DURING LAST SO MANY YEARS. BUT THE ASSESSING OFFICER HAS REJECTED THIS AFFIDAVIT ON THE GROUND THAT FRESH REASONS GIVEN IN THE AFFIDAVIT FILED SUBSEQUENTLY CANNOT BE CONSIDERED BY IGNORING THE DECISION OF HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF KAKARLA KRISHNAMURTHY V. CIT (216 ITR 206). THE LEARNED AR OF THE ASSESSEE FURTHER SUBMITTED THAT THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) HAVE NOT PROPERLY APPRECIATED THIS DECISION IN ITS RIGHT PERCEPTIVE. THE DECISION SAYS THAT FRESH REASON GIVEN IN THE AFFIDAVIT FILED SUBSEQUENTLY CANNOT BE CONSIDERED BUT IT SHOULD BE TAKEN ITA NO.163/CTK/2012 4 ONLY TAKING INTO ACCOUNT THE FACTS AND CIRCUMSTANCES OF THE CASE, WHICH ARE ENTIRELY DIFFERENT FROM THE FACTS AND CIRCUMS TANCES OF THE PRESENT CASE. HE FURTHER SUBMITTED THAT HONBLE SUPREME COURT HAS HELD IN THE CASE OF CIT V. T I & M SALES LTD (166 ITR 93)THAT WHEN THE CONTENTS OF AFFIDAVIT ARE NOT DISPUTED BY ASSESSING OFFICER NOR THE ASSESSING OFFICER REFUSED TO ADMIT TH E AFFIDAVIT, THE AFFIDAVIT HAS TO BE ACCEPTED. HE FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS WRONGLY TREATED THE TRANSFEROR NAMELY SANGAM SHETH AS THE DONOR BUT ACTUALLY THE DONOR IS KIRIT KUMAR SETH , FATHER OF SAID SANGAM SHETH. THUS BY WAY OF CONF USION THE ASSESSING OFFICER HAS COME TO THE CONCLUSION THAT THE ASSESSEE HAS NOT ESTABLISHED THE CLAIM OF GIFT DURING THE ASSESSMENT PROCEEDINGS. FURTHER HE CONTENDED THAT WHETHER THE SAID KIRIT KUMAR SETH OR SANGAM SHETH ARE RELATIVES OR NOT IS TO BE ADJU DICATED. THEN HE REFERRED TO THE MEANING GIVEN TO THE WORD RELATIVE IN S ECTION 56(2)(V) . HE BROUGHT OUR ATTENTION TO THE EXPLANATION ATTACHED TO THE SAID SECTION WHICH STATES THAT FOR THE PURPOSE FOR THE PURPOSES OF THIS CLAUSE, RELATIVE MEANS (I)SPO USE OF THE INDIVIDUAL; (II)BROTHER OR SISTER OF THE INDIVIDUAL; (III)BROTHER OR SISTER OF THE SPOUSE OF THE INDIVIDUAL; (IV) BROTHER OR SISTER OF EITHER OF THE PARENTS OF THE INDIVIDUAL; (V)ANY LINEAL ASCENDANT OR DESCENDANT OF THE INDIVIDUAL; (VI) ANY LINEAL ASCENDANT OR DESCENDANT OF THE SPOUSE OF THE INDIVIDUAL; AND (VII) SPOUSE OF THE PERSON REFERRED TO IN CLAUSES (II) TO (VI). THIS CLEARLY INDICATES THAT THE SAID KIRIT KUMAR SETH IS THE BROTHER OF THE FATHER OF THE ASSESSEE AND SO HE SQUARELY COMES UNDER CLAUSE (IV) I.E., BROTHER OR SISTER OF EITHER OF THE PARENTS OF THE INDIVIDUAL. HENCE, THE ASSESSEE HAS RIGHTLY CLAIMED THE EXEMPTION BUT THE DEPARTMENT HAS NOT PROPERLY APPRECIATED THE ASSERTIONS OF THE ASSESSEE. THEREFORE UNDER THESE FACTS AND CIR CUMSTANCES OF THE CASE, THE LEARNED AR OF THE ASSESSEE SOUGHT FOR SETTING ASIDE THE IMPUGNED ADDITION MADE IN THE HANDS OF THE ASSESSEE. ITA NO.163/CTK/2012 5 6. CONTRARY TO THIS, THE LEARNED DR HAS VEHEMENTLY ARGUED SUPPORTING THE ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES CONTENDING INTER ALIA THAT THE CLAIM OF THE ASSESSEE THAT THE GIFT WAS GIVEN BY KIRIT KUMAR SETH CANNOT BE COUNTENANCED AS THE ASSESSEE ORIGINALLY HAD RECEIVED THE MONEY AS GIFT FROM SANGAM SHETH WHO HAS REMITTED THE CASH FROM ABU DHABI TO THE ASSESSEE AT CUTTACK BY WAY OF DD ON 13.10.2005. HAVING BEEN CONFRONTED BY THE ASSESSING OFFICER, THE ASSESSEE HAS INVENTED THE THEORY OF GIFT HAVING BEEN SPONSORED BY HIS UNCLE I.E., FATHERS BROTHER NAMELY KIRIT KUMAR SETH IN ORDER TO HAVE THE ADVANTAGE OF CLAUSE (IV ) GIVEN IN EXPLANATION OF SECTION 56(2)(VI). SUCH A CONTRADICTORY CLAIM MADE BY THE ASSESSEE IS NOT TO BE CONSIDERED AS PER THE DECISION OF HONBLE ANDHRA PRADESH HIGH COURT WHICH WAS RELIED ON BY THE ASSESSING OFFICER WAS CONFIRMED BY THE LEARNED CIT(A). THEREFORE, UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE, THE IMPUGNED ORDER IS NOT INFIRMED ANY WAY REQUIRING INTERFERENCE. ACCORDINGLY HE SOUGHT FOR UPHOLDING THE SAME BY DISMISSING THE APPEAL OF THE ASSESSEE. 7. ON CAREFUL ANALYSIS OF THE ORDERS OF TH E DEPARTMENTAL AUTHORITIES, IT IS FOUND THAT THE ORIGINALLY THE ASSESSMENT ORDER WA S DONE BY MAKING ADDITION OF 24 ,94,994 U/S.56(2)(V) OF THE I.T.ACT AND IT IS CONFIRMED BY THE LEARNED CIT(A)BUT THIS TRIBUNAL HAS RESTORED THE SAME FOR DE NOVO CONSIDERATIO N BY THE CIT(A) BY A SPECIFIC DIRECTION DIRECTING THE CIT(A) TO GIVE THE ASSESSEE ONE MORE OPPORTUNITY IN ORDER TO ESTABLISH WHETHER THE GIFT HAS BEEN GIVEN BY KIRIT KUMAR SETH OR SANGAM SETH TO THE SATISFACTION OF THE DEPARTMENT. THEREFORE, THIS TRIBUNAL HAS GIVEN OPPORTUNITY TO THE ASSESSEE TO CONFORM TO A STAND WHETHER THE IMPUGNED GIFT IS GIVEN BY KIRIT KUMAR SETH OR S ANGAM SETH AND ESTABLISH THE SAME BY PRODUCING NECESSARY EVIDENCE. BUT THE LEARNED CIT(A) HAS GIVEN OPPORTUNITY TO THE ASSESSEE AND THE ASSESSEE HAS FILED COPY OF THE AFFIDAVIT DT.26.12.2008 OF KIRIT KUMAR SETH WHICH WAS ALSO FILED BEFORE ITA NO.163/CTK/2012 6 THE ASSESSING OFFICER. THE LEARNED CIT(A) HAS REJECTED THIS AFFIDAVIT BY OBSERVING THAT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE TO ESTABLISH THE CAPAC ITY OF THE DONOR KIRIT KUMAR SETH OR SANGAM SHETH BEFORE HIS PREDECESSOR. THUS OBSERVING, HE CAME TO CONCLUSION THAT THE ASSESSEE HAS FAILED TO FURNISH EVIDENCE FOR THE GIFT OF 24 ,94,994 WAS GIVEN BY KIRIT KUMAR SETH OR SANGAM SHETH AND ACCORDINGLY HE CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. BY PASSING THE IMPUGNED ORDER, IN OUR CONSIDERED VIEW, THE LEARNED CIT(A) HAS NOT PROPERLY UNDERSTOOD THE DIRECTION GIVEN BY T HE TRIBUNAL. THE TRIBUNAL HAS DIRECTED THE CIT(A) TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO ESTABLISH WHETHER GIFT HAS BEEN GIVEN BY KIRIT KUMAR SETH OR SANGAM SHETH TO THE SATISFACTION OF THE DEPARTMENT. THEREFORE, IRRESPECTIVE OF THE STAND BEFORE T HE ASSESSING OFFICER ORIGINALLY THE ASSESSEE HAS FILED AN AFFIDAVIT DT.26.12.2008 OF KIRIT KUMAR SETH WHICH WAS ALSO FILED BEFORE THE ASSESSING OFFICER. THE CONTENTS OF THE SAID AFFIDAVIT AS EXTRACTED BY THE ASSESSING OFFICER IN PARAGRAPH 2.9 OF HIS ORDER DT.30.12.2008 IS QUOTED HERE UNDER : 1. THAT SRI AMAL SHETH IS MY NEPHEW I.E. SON OF MY ELDER BROTHER LATE SRI SUSHIL KUMAR SHETH. 2. THAT I INTENDED TO GIVE A GIFT OF A CONSIDERABLE AMOUNT TO MY SAID NEPHEW AND ACCORDINGLY I ASKED MY SON SANGAM SHETH TO SEND A SUM OF RS.25 TAKH APPROXIMATELY TO MY SAID NEPHEW AT CUTTACK. 3. THAT UPON MY INSTRUCTION MY SON SANGAM TRANSFERRED A SUM OF 24,94,994 TO MY SAID NEPHEW FROM DUBAI. THE MONEY WAS DIRECTLY TRANSFERRED TO MY NEPHEW AMAL AS I DO NOT HAVE ANY BANK ACCOUNT AND I AM NOT ASSESSED TO I. T. AS I AM FULLY PASSING A RETIRED LIFE. XX XX XX XX 5. THAT AS SUCH IT IS ME AND ONLY MYSELF THAT HAS MADE THIS GIFT AS MY SON DOES NOT HAVE ANY DIRECT RELATIONSHIP WITH AMAL. MY SON IS STAYING AT DUBAI SINCE LAST 15 YEARS AND HAS NEVER MET AMAL DURING LAST SO MANY YEARS . ITA NO.163/CTK/2012 7 FROM THE SAID AFFIDAVIT, IT IS CLEAR THAT TH E ASSESSEE HAS CHOSEN THE STAND THAT HIS UNCLE KIRIT KUMAR SETH ONLY HAS GIVEN THE GIFT SINCE THE SAID KIRIT KUMAR SETH HAD NO SUFFICIENT MONEY AND HENCE ASKED HIS SON SANGAM SHETH WHO WAS STAYING AT ABU DHABI SINCE LAST 15 YEARS TO SEND A SUM OF 25 LAKHS AS GIFT TO THE ASSESSEE BUT THE ASSESSING OFFICER HAVING ADMITTED THE AFFIDAVIT HE CANNOT IGNORE IT ON FLIMSY GROUNDS. HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF KAKARLA KRISHNAMURTHY V. CIT (216 ITR 206) HAS HELD THAT I.T.PROCEEDINGS/AFFID VIT/VALIDITY OF THE ORDER TO BE JUDGED AND FRESH REASONS GIVEN IN AFFIDAVIT FILED SUBSEQUENTLY CANNOT BE CONSIDERED. THIS CLEARLY IMPLIES THAT VALIDITY OF THE ORDER TO BE JUDGED BY GOING THROUGH THE REASONS MENTIONED IN THE SAID ORDER AND FRESH REASON GIVE N IN THE AFFIDAVIT FILED SUBSEQUENTLY CANNOT BE CONSIDERED. BUT HERE IN THE PRESENT CASE, THE ASSESSEE HAS TAKEN ONE OF THE STAND S WHICH WAS ALSO TAKEN BEFORE THE ASSESSING OFFICER I.E., ONE AFFIDAVIT FROM KIRIT KUMAR SETH AND ONE AFFIDAVIT FROM SANGAM SHETH BOTH WERE FILED BEFORE THE ASSESSING OFFICER IN THE ORIGINAL PROCEEDINGS AND WHEN THE MATTER WAS REMANDED TO THE CIT(A) BY THE TRIBUNAL FOR GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE TO ESTABLISH THE FACT OF GIFT GIVEN EITHER BY KIRIT KUMAR SETH OR SANGAM SHETH,THE ASSESSEE HAS TAKEN THE STAND THAT THE GIFT HAD BEEN GIVEN BY KIRIT KUMAR SETH ONLY BUT AT THE DIRECTION OF KIRIT KUMAR SETH THE AMOUNT WAS SENT BY SANGAM SHETH, SON OF KIRIT KUMAR SETH. THIS IS ESTABLISHED BY FILING AFFIDAVIT OF KIRIT KUMAR SETH AND THERE IS NO MATERIAL BROUGHT OUT BY THE DEPARTMENT TO CONTROVERT THE CONTENTS OF THE AFFIDAVIT MORE SO WHEN THE AFFIDAVITS GENUINENITY WA S NOT DOUBTED BY THE DEPARTMENT, AS THIS IS FILED EVEN AT THE TIME OF ORIGINAL ASSES SMENT, AS CAN BE SEEN FROM PARA 2.9 OF THE ASSESSMENT ORDER DT.30.12.2008. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS PROVED HIS CONTENTION THAT THE GIFT IS FROM HIS UNCLE KIRIT KUMAR SETH BY ITA NO.163/CTK/2012 8 ADVISING HIS SON SANGAM SHETH TO SEND THE CA SH TO THE ASSESSEE AS GIFT . SANGAM SHETH HAS SENT THE CASH IN PURSUANCE TO THE DIRECTION OF HIS FATHER KIRIT KUMAR SETH. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE SHRI KIRIT KUMAR SETH BEING THE BROTHER OF THE FATHER OF THE ASSESSEE CLEARLY FALLS IN THE PURVIEW OF CLAUSE (IV) I.E., BROTHER OR SISTER OF EITHER OF THE PARENTS OF THE INDIVIDUAL , OF THE EXPLANATION APPENDED TO CLAUSE (V) OF SUB - SECTION (2) OF SECTION 56 OF THE I.T.ACT. THEREFORE, THE SAID SUM IS NOT AT ALL TAXABLE AS INCOME FROM OTHER SOU RCES. HENCE, WE DIRECT THE DELETION OF THE ADDITION OF 24,94,994 MADE U/S.56(2)(V) OF THE I.T.ACT BY ALLOWING THE APPEAL OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. S D/ - S D/ - (K.K.GUPTA) ACCOUNTANT MEMBER (K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 02.04.2012 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: AMAL SHETH, NAYA SARAK, CUTACK 753 002 2. THE RESPONDENT: INCOME - TAX OFFI CER, WARD 2(3), CUTTACK. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.