LATE NIRMAL A SETH, MUMBAI V. DCIT CEN CIR 13, MUMBAI

ITA 188/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8249 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: H
• Next Hearing Date: 24-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 08-01-2015
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Keywords: Capital asset; Business income
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) I.T.A. NOS.187 & 188/MUM/2015 (ASSESSMENT YEAR 2010-11) SHRI ASHOK M SETH 304/B, PRATIKSHA TOWER, R.S. NIMKAR MARG, MUMBAI-4 VS DCIT, CENT.CIR.13,MUMBAI PAN NO. AACPB5967B ( APPELLANT) (RESPONDENT) LATE NIRMALA A SETH SHOP NO.9, 13 TH KHETWADI BACK ROAD MUMBAI-4 VS DCIT, CENT.CIR.13,MUMBAI PAN NO. AMZPS2711H ( APPELLANT) (RESPONDENT) APPELLANTS BY SHRI NARESH KUMAR RESPONDENT BY SHRI M.C. OMI NINGSHEN DATE OF HEARING : 24-01-2017 DATE OF ORDER : 15 -02-2017 O R D E R PER ASHWANI TANEJA, AM :- THESE APPEALS PERTAIN TO DIFFERENT ASSESSEES INVOL VING COMMON ISSUE, THEREFORE, THESE WERE HEARD TOGETHER AND BEING DISP OSED OF BY THIS COMMON ORDER. 2. FIRST, WE SHALL TAKE UP APPEAL IN THE CASE OF SHR I ASHOK M SETH FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INC OME-TAX (APPEALS)-37, 2 ITA 187 & 188/MUM/2015 MUMBAI AGAINST THE ASSESSMENT ORDER DATED 20-03-201 3 U/S 143(3) OF THE ACT FOR AY. 2010-11 ON THE FOLLOWING GROUNDS:- 1. THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN CONFIRMING THE MADE BY THE LEARNED ASSESSI NG OFFICER WITH REGARDS TO THE ADDITION OF LONG TERM CAPITAL G AINS OF RS.40,00,000/- BY ALLEGING SALE OF PROPERTY ALONGWI TH CO-OWNER NIRMALA SETH DURING F.Y. 2009-10 BASED ON AGREEMENT REGISTERED AND PART PAYMENT RECEIVED AGAINST SUCH AGREEMENT INSTEA D OF THE BEING ACCRUED ON HANDING OVER OF THE POSSESSION OF SAID F LAT BEING HANDED OVER IN F.Y. 2011-12 TO THE CONCERNED BUYER AND BAS ED ON WHICH CAPITAL GAIN HAS BEEN OFFERED FOR TAX IN A.Y. 2012- 13 BY THE APPELLANT. IT IS THEREFORE SUBMITTED THAT THE HON'BLE COMMISSI ONER OF INCOME TAX (APPEAL) HAS ERRED IN CONFIRMING THE TAXING OF SUCH LONG TERM CAPITAL GAIN WITHOUT CONSIDERING FACTS AND CIRCUMST ANCES OF THE CASE AND IT IS THEREFORE PRAYED THAT SUCH ADDITION SHOULD BE DELETED. ACCORDINGLY, NECESSARY DIRECTION SHOULD BE GIVEN IN THIS REGARD. 2. THE HON'BLE COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN CONFIRMING THE TAXING OF RENTAL INCOME TO THE EXTENT OF RS.2,40,000/- AS INCOME FROM OTHER SOURCES INSTEAD OF INCOME FROM HOUSE PROPERTY. IT IS SUBMITTED THAT SUCH RENTAL IN COME HAS AROSE FROM THE FLAT GIVEN ON RENT AND ACCORDINGLY, AS PER LAW, THE INCOME FROM SUCH HOUSE PROPERTY SHOULD BE TAXED AS INCOME FROM HOUSE PROPERTY ONLY. ACCORDINGLY, NECESSARY DIRECTION SHO ULD BE GIVEN IN THIS REGARD. WITHOUT PREJUDICE, IF SUCH INCOME HAS BEEN TAXED AS INCOME FROM OTHER SOURCES THAN MAINTENANCE CHARGES AND OTHER AL LIED EXPENSES INCURRED OF RS.1,59,600/- IN RELATION TO SUCH PROPE RTY HAS TO BE ALLOWED U/S 57 (III) OF INCOME TAX ACT, 1961. 3. THE SOLITARY ISSUE INVOLVED IN THIS APPEAL IS WITH REGARD TO DETERMINATION OF THE YEAR OF TAXABILITY OF THE CAPITAL GAINS AR ISING ON SALE OF RESIDENTIAL FLAT. AS PER THE ASSESSEE, THE SALE OF THE FLAT WAS COMPL ETED IN AY 2012-13, AND THEREFORE CAPITAL GAIN WAS OFFERED TO TAX IN SAID Y EAR. HOWEVER, AS PER THE AO, THE SALE OF THE FLAT WAS DONE IN IMPUGNED ASSESSMEN T YEAR, I.E. AY 2010-11 3 ITA 187 & 188/MUM/2015 THEREFORE HE BROUGHT TO TAX THE AMOUNT OF CAPITAL G AIN IN THE YEAR BEFORE US I.E. AY 2010-11. 4. THE BRIEF BACKGROUND OF THE FACTS OF THE CASE IS TH AT ASSESSEE WAS CO- OWNER ALONG WITH HIS WIFE, SMT. NIMALA SETH OF A RE SIDENTIAL FLAT, VIZ. FLAT 2201, EARTH CASTLE, V.P. ROAD, MUMBAI. THE ASSESSEE ALON G WITH HIS WIFE ENTERED INTO AGREEMENT, FOR SALE OF THE SAID FLAT WITH SHRI JAYW ANT HASTIMAL SHAH AND MRS. SAPNA J SHAH. THE ASSESSEE RECEIVED ADVANCE OF RS. 40 LAKHS TOWARDS HIS SHARE AGAINST THE TOTAL SALE CONSIDERATION OF RS. 85 LAKH S. THE SALE AGREEMENT WAS ALSO REGISTERED DURING THE YEAR. HOWEVER, POSSESSI ON OF THE FLAT WAS GIVEN IN AY 2011-12 AND OTHER FORMALITIES WERE COMPLETED IN AY 2011-12, THEREFORE, ASSESSEE OFFERED TO TAX THE RESULTANT CAPITAL GAIN IN AY 2011-12. ON THE OTHER HAND, AO WAS OF THE OPINION THAT SINCE AGREEMENT WA S REGISTERED IN THE FINANCIAL YEAR 2009-10, THEREFORE, SALE WAS COMPLET E AND RESULTANT GAIN SHOULD BE ASSESSED IN AY 2010-11 ITSELF. BEING AGGRIEVED, ASSESSEE FILED APPEAL BEFORE LD. CIT(A) WHEREIN DETAILED SUBMISSIONS WERE FILED. IT WAS EXPLAINED THAT ALL THE INGREDIENTS OF SALE WERE NOT COMPLETED; THEREFORE T HE SALE OF THE FLAT WAS NOT COMPLETE IN THE YEAR BEFORE US. IT WAS FURTHER SUB MITTED THAT IN ANY CASE, CAPITAL GAIN HAS ALREADY BEEN OFFERED TO TAX IN AY 2012-13 AND ULTIMATELY THERE IS NO REVENUE LEAKAGE AS DUE TAX HAS ALREADY BEEN P AID. BUT LD. CIT(A) WAS NOT IN AGREEMENT WITH THE CONTENTION OF THE ASSESSEE. IT WAS OBSERVED BY HIM THAT SUBSTANTIAL AMOUNT OF CONSIDERATION WAS RECEIVED DU RING THE YEAR AND THERE WAS NOTHING IN THE SALE AGREEMENT TO INFER ANY PART PERFORMANCE OR CONDITIONALITY IN RESPECT OF SAID AGREEMENT. IT WA S ALSO OBSERVED THAT THE NO OBJECTION CERTIFICATE ISSUED BY THE SOCIETY HAD NO BEARING ON THE COMPLETION OF THE TRANSACTION OR OTHERWISE. THEREFORE, HE END ORSED THE OPINION OF THE AO AND HELD THAT SALE WAS COMPLETE DURING THE YEAR; TH EREFORE RESULTANT CAPITAL 4 ITA 187 & 188/MUM/2015 GAIN IS ASSESSABLE TO TAX IN THE YEAR BEFORE US. STILL BEING AGGRIEVED, ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL. 5. DURING THE COURSE OF HEARING BEFORE US, LD. COUNSEL OF THE ASSESSEE MADE DETAILED ARGUMENTS. IT WAS FIRSTLY ARGUED BY HIM T HAT THERE ARE FOLLOWING THREE CONDITIONS TO BE FULFILLED BEFORE IT COULD BE SAID THAT TRANSACTION OF SALE OF IMMOVABLE PROPERTY IS COMPLETE:- (1) THERE SHOULD BE PASSING ON OF THE SALE CONSIDERATIO N; (2) HANDING OVER OF THE POSSESSION BY THE SELLER TO THE BUYER; AND (3) THERE SHOULD BE CONVEYANCE DEED, WHICH SHOULD BE RE GISTERED. IT WAS SUBMITTED THAT ALL THE CONDITIONS ARE CUMULA TIVE AND ALL OF THEM MUST BE FULFILLED BEFORE A TRANSACTION OF SALE OF PROPERTY COULD BE SAID TO BE COMPLETE. HE PLACED RELIANCE UPON THE JUDGEMENT OF HON'BLE PA TNA HIGH COURT IN THE CASE OF RAJ RANI DEVI RAMNA VS CIT 210 ITR 1032 (PAT) WH EREIN IT WAS HELD THAT TRUE TEST FOR COMPLETION OF SALE IS THE INTENTION OF THE PARTIES AND REGISTRATION IS ONLY A PRIMA FACIE PROOF OF AN INTENTION OF TRANSFER, BU T IT IS NO PROOF OF AN OPERATIVE TRANSFER IF THERE WAS A CONDITION PRECEDENT AS TO T HE PAYMENT OF CONSIDERATION OR DELIVERY OF THE DEED. HE ALSO RELIED UPON THE J UDGEMENT OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CALCUTTA ELECTRIC SUPPLY CORPORATATION LTD VS CIT 19 ITR 406 (CAL) FOR THE PURPOSE OF EXPLAINING THE MEA NING OF THE WORD SALE. HE TOOK US THROUGH VARIOUS PAGES OF THE PAPER BOOK TO SHOW THAT NEITHER THE POSSESSION WAS GIVEN IN THE YEAR BEFORE US NOR FULL CONSIDERATION WAS RECEIVED NOR ANY NO OBJECTION CERTIFICATE FROM THE SOCIETY W AS RECEIVED AND THERE WERE OTHER FORMALITIES PENDING COMPLETION BEFORE THE BUY ER COULD HAVE HAD PROPER LEGAL TITLE AND ABSOLUTE OWNERSHIP OF THE FLAT. 6. PER CONTRA, THE LD. DR RELIED UPON THE ORDERS OF TH E LOWER AUTHORITIES. IT WAS SUBMITTED BY HIM THAT LD. CIT(A) HAS ANALYSED I N DETAIL ALL THE ASPECTS BEFORE REACHING TO THE CONCLUSION THAT SALE WAS COM PLETED IN THE YEAR UNDER 5 ITA 187 & 188/MUM/2015 CONSIDERATION. THEREFORE, RESULTANT CAPITAL GAIN H AS RIGHTLY BEEN ASSESSED BY THE AO IN THE IMPUGNED YEAR. THEREFORE, HIS ORDER SHOULD BE UPHELD AND APPEAL OF THE ASSESSEE SHOULD BE DISMISSED. 7. WE HAVE GONE THROUGH THE ORDERS PASSED BY THE LOWER AUTHORITIES, SUBMISSIONS MADE BY BOTH THE SIDES AS WELL AS DOCUM ENTS PLACED BEFORE US. THE ISSUE BEFORE US IS WITH REGARD TO THE DETERMINA TION OF POINT OF TIME WHEN THE SALE OF FLAT CAN BE SAID TO HAVE BEEN COMPLETED . IF THE SALE WAS NOT COMPLETE DURING THE YEAR AS CLAIMED BY THE ASSESSEE , THEN AO HAD WRONGLY HELD THAT THE CAPITAL GAIN WAS TAXABLE IN THE IMPUG NED YEAR, AND VICE-VERSA . IN THIS REGARD, WE HAVE ANALYSED THE FACTS OF THE CASE . LD. COUNSEL HAS SUBMITTED BEFORE US CHRONOLOGY OF EVENTS WHICH READS AS UNDER :- S.NO. DESCRIPTION DATE PAPER BOOK REFERENCE 1 DATE OF PURCHASE OF FLAT 13/06/2008 - 2 ADVANCE OF RS. 40,00,000 RECEIVED BY EACH CO- OWNER AGAINST THE SALE OF FLAT 28/05/2009 18 TO 23 3 NOC APPLIED TO THE SOCIETY 02/07/2009 35 4 SALES AGREEMENT REGISTERED 03/07/2009 24 TO 39 5 BALANCE SALE PROCEEDS RECEIVED 16/06/2011 18 TO 2 3 6 POSSESSION GIVEN 26/06/2011 17 7 BUYERS WRITE TO THE SOCIETY FOR TRANSFER OF THE FLAT JUNE 2011 16 8 MAINTENANCE CHARGES OF RS.77,344/- PAID ON 01/08/2011 13 TO 14 8. WE HAVE GONE THROUGH THE DOCUMENTS SHOWN TO US BY THE LD. COUNSEL. UNDOUBTEDLY, THE ASSESSEE HAD RECEIVED DURING THE Y EAR ADVANCE WHICH CONSTITUTED SUBSTANTIAL PART OF TOTAL SALES CONSIDE RATION. IT IS ALSO TRUE THAT THE ASSESSEE HAD EXECUTED THE SALE AGREEMENT DURING THE YEAR ON 03-07-2009 AND THE SAME WAS REGISTERED ALSO. HOWEVER, THIS FACT I S ALSO ON RECORD AND NOT 6 ITA 187 & 188/MUM/2015 DISPUTED BY THE REVENUE THAT THE POSSESSION OF THE FLAT WAS NOT YET HANDED OVER AND FEW OTHER LEGAL FORMALITIES FOR TRANSFERRI NG THE FLAT IN THE NAME OF THE ASSESSEE WERE STILL PENDING FOR EXECUTION. AS PER DETAILS AVAILABLE, OUT OF TOTAL CONSIDERATION OF RS .85 LACS, A SUM OF RS. 80 LACS WAS BY RECEIVED BY ASSESSEE AND HIS WIFE (BEING CO-OWNER) ON 28-05-2009. HOWEV ER, THE BALANCE AMOUNT OF RS.5 LACS WAS RECEIVED ON 16-06-2011 (I.E. IN AY. 2 012-13). THE ASSESSEE HAS ALSO DRAWN OUR ATTENTION UPON THE RECEIPTS ISSUED B Y THE EARTH CASTLE RESIDENCY CO-OPERATIVE HOUSING SOCIETY LTD DATED 01 -08-2011 CONFIRMING THAT MAINTENANCE CHARGES OF THE FLAT FOR THE PERIOD OCTO BER, 2010 TO JUNE, 2011 AMOUNTING TO RAS.77,344 WAS PAID BY THE ASSESSEE. OUR ATTENTION WAS DRAWN ON THE BANK STATEMENT OF THE ASSESSEE INDICATING PA YMENT OF AFORESAID MAINTENANCE CHARGES OF RS.77,344 BY THE ASSESSEE. FURTHER, OUR ATTENTION WAS DRAWN ON THE POSSESSION LETTER WHEREIN SHAH FAMILY (I.E. BUYERS) CONFIRMED THAT POSSESSION WAS OBTAINED BY THEM FROM THE ASSES SEE ON 26 TH DAY OF JUNE, 2011. FURTHER, OUR ATTENTION WAS ALSO DRAWN ON THE LETTER WRITTEN BY SHAH FAMILY TO THE SOCIETY FOR TRANSFERRING THE SAID FLA T IN THEIR NAMES AND ALSO CLARIFYING IN THE SAID LETTER THAT FROM THIS DATE O NWARDS, I.E. JUNE, 2011 MAINTENANCE CHARGES SHALL BE BORNE BY THE SHAH FAMI LY AND NOT BY THE ASSESSEE. 9. THUS, THE DOCUMENTS ON RECORD DULY ESTABLISH THAT D URING THIS PERIOD, I.E. BETWEEN THE DATE OF REGISTRATION OF SALE AGREEMENT ON 03-07-2009 AND TILL THE DATE OF HANDING OVER OF POSSESSION ON 26 TH JUNE, 2011, THE FLAT WAS IN THE EXCLUSIVE POSSESSION, ENJOYMENT AND CUSTODY OF ASSE SSEE ONLY. THOUGH SALE AGREEMENT WAS EXECUTED AND REGISTERED, BUT NEITHER COMPLETE CONSIDERATION WAS RECEIVED BY THE ASSESSEE NOR DID ALL THE LEGAL FORMALITIES WERE COMPLETE. FURTHER, THE OBLIGATION ABOUT THE MAINTENANCE OF TH E PROPERTY WAS ALSO 7 ITA 187 & 188/MUM/2015 RETAINED BY THE ASSESSEE TILL THE FLAT WAS TRANSFER RED BY THE SOCIETY IN THE NAME OF THE PURCHASERS. 10. THUS, OVERALL FACTS OF THE CASE INDICATE THAT SALE COULD NOT HAVE BEEN SAID TO BE COMPLETED IN ABSOLUTE TERMS IN THE YEAR 2009. FOR COMPLETION OF SALE IN ABSOLUTE TERMS, FULFILMENT OF ALL THE THREE CONDITI ONS MENTIONED ABOVE ARE MUST, I.E. EXECUTION OF REGISTRATION OF CONVEYANCE DEED, HANDING OVER OF POSSESSION AND PAYMENT OF FULL CONSIDERATION. IN T HE CASE BEFORE US, ONLY FIRST CONDITION WAS COMPLETED AND THE REMAINING TWO CONDI TIONS WERE STILL PENDING TO BE EXECUTED AND WERE NOT COMPLETED IN THE IMPUGN ED YEAR. IN ADDITION TO THAT, ALL THE LEGAL FORMALITIES FOR AFFECTING THE T RANSFER OF THE PROPERTY IN THE NAME OF PURCHASER WERE ALSO NOT COMPLIED WITH AND T HE SAME WERE COMPLETED ONLY AFTER PAYMENT OF MAINTENANCE CHARGES BY THE AS SESSEE TO THE SAID SOCIETY. THE SAID FLAT CAME INTO FULL AND EXCLUSIVE CONTROL OF THE NEW PURCHASER ONLY AFTER WHEN THE POSSESSION OF THE SAME WAS HANDED OV ER TO THEM BY THE ASSESSEE ON 26-06-2011. THUS, THE SAID FLAT WAS AV AILABLE FOR ENJOYMENT BY THE PURCHASER ONLY AFTER THE SAID DATE. THUS, TAKING I NTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, THE SALE OF THE FLAT CAN NOT BE SAID TO BE COMPLETED IN THE YEAR BEFORE US. IN THIS REGARD OUR VIEW FIN DS SUPPORT FROM THE JUDGMENT RELIED UPON BY LD. COUNSEL OF THE ASSESSEE OF HON'BLE PATNA HIGH COURT IN THE CASE OF RAJ RANI DEVI RAMNA (SUPRA) WHEREIN THEIR LORDSHIPS OPINED AS UNDER:- THE PROPERTIES DO NOT NECESSARILY PASS AS SOON AS T HE INSTRUMENT IS REGISTERED, FOR THE TRUE TEST IS THE INTENTION OF T HE PARTIES. REGISTRATION IS PRIMA FACIE PROOF OF AN INTENTION T O TRANSFER, BUT IT IS NO PROOF OF AN OPERATIVE TRANSFER IF THERE IS A CONDITION PRECEDENT AS TO THE PAYMENT OF CONSIDERATION OR DELIVERY OF THE DEED. THUS THE SELLER MAY RETAIN THE DEED PENDING PAYMENT OF PRICE AND, IN THAT CASE, THERE IS NO TRANSFER UNTIL THE PRICE IS PAID AND THE DEED IS DELIVERED. IN THE PRESENT CASE, FROM THE STATEMENT OF CASE ITSELF AS DRAWN UP BY THE TRIBUNAL, IT IS APPARENT THAT THE P ARTIES HAD CLEARLY INTENDED THAT DESPITE THE EXECUTION AND REGISTRATIO N OF SALE DEEDS, 8 ITA 187 & 188/MUM/2015 TRANSFER BY WAY OF SALE WILL BECOME EFFECTIVE ONLY ON PAYMENT OF THE ENTIRE CONSIDERATION AMOUNT AND IN THIS BACKGROUND OF FACTS, !T HAS TO BE HELD THAT THERE WAS NO TRANSFER OF LAND COVERED BY THE THREE SALE DEEDS IN QUESTION DURING THE PERIOD UNDER CONSIDERA TION MAKING THE ASSESSEE LIABLE FOR CAPITAL GAINS TAX UNDER S. 45-N ITAI CHANDRA GAVASKAR VS. SMT. CHAMPAKIATA DEBI (1919) 29 CL-7 2 50, PANCHOO SAHU VS. JANKU MANDAR AIR 1952 PAT 263 AND SHIVA NARAYAN SAT, VS. BAIDYA NATH PRASAD TIWARY AIR 1973 PAT 386 RELIED ON. 11. THUS, IF WE ANALYSE ALL THE DOCUMENTS AND FACTS OF THIS CASE AND BASED UPON THE SAME GATHER THE INTENTION OF THE PARTIES, WE FIND THAT THE SUBSTANCE OF THE TRANSACTION SHOW THAT SALE WAS NOT INTENDED TO BE COMPLETED IN THE YEAR BEFORE US. THEREFORE, THE RESULTANT GAIN ARISING O N THE SALE OF THE FLAT CONCLUDED IN THE SUBSEQUENT YEAR COULD NOT HAVE BEE N BROUGHT TO TAX IN THE IMPUGNED YEAR. FURTHER, IN ANY CASE, THE TAXABLE A MOUNT OF CAPITAL GAIN HAS ALREADY BEEN OFFERED TO TAX BY THE ASSESSEE IN THE ASSESSMENT YEAR 2012-13 AND HAS BEEN ACCEPTED AS SUCH BY THE REVENUE AS PER THE INFORMATION PROVIDED TO US. UNDER THESE CIRCUMSTANCES, IT WOULD NOT BE JUSTIFIED TO ADOPT A HYPER TECHNICAL APPROACH AND TAX THE SAME IN THIS YEAR AL SO WHICH WILL LEAD TO DOUBLE TAXATION AND AVOIDABLE HARDSHIP TO THE ASSESSEE. T HEREFORE, KEEPING IN VIEW THE PECULIAR FACTS AND CIRCUMSTANCES OF THIS CASE A ND IN THE INTEREST OF JUSTICE AND ALL FAIRNESS WE DIRECT THE AO TO DELETE THE ADD ITION. AS A RESULT, GROUND 1 IS ALLOWED. 12. NO ARGUMENTS WERE MADE WITH REGARD TO GROUNDS 2 & 3 , THEREFORE, THESE ARE DISMISSED. 13. NOW WE SHALL TAKE APPEAL IN THE CASE OF MRS NIRMALA A SETH, L/H SHRI ASHOK M SETH. ISSUES INVOLVED IN THIS CASE ARE IDENTICAL. THE A SSESSEE IS CO- OWNER OF THE FLAT WHICH WAS SOLD TO SHRI JAYWANT HA STIMAL SHAH AND MRS. SAPNA J SHAH. THEREFORE, FOLLOWING OUR ORDER IN THE CASE OF ASHOK M SETH, GROUND 1 OF THE ASSESSEE IS ALLOWED AND GROUNDS 2 & 3 ARE DI SMISSED. 9 ITA 187 & 188/MUM/2015 14. IN THE RESULT, BOTH THE APPEALS ARE PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CONCL USION OF THE HEARING. SD/- SD/- (D.T. GARASIA) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 15 TH FEBRUARY, 2017 PATEL/PS COPY TO: 1. THE APPELLANTS 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE , H-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES