Shri Prembhai Kanjibhai Tandel, Nani Daman V. The Income Tax Officer, Daman Ward, Daman

ITA 192/AHD/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0730 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-08-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 27-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SURESH K KABRA
• Keywords: Unexplained investment; Value adopted by valuation officer; Capital asset; Salary income; Principle of natural justice; Cost of acquisition; Fair market value; Tax effect
• Section: 133A; 133(6); 131; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ ITA.NO.192/AHD/2016 / ASSTT. YEAR: 2012-2013 SHRI PREMBHAI KANJIBHAI TANDEL H.NO.11-38 FAKIR JIVA SHERI NANI DAMAN PAN : AFJPT 2102 C VS ITO, DAMAN WARD DAMAN. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI SURESH K. KABRA, AR REVENUE BY : SHRI JAMES KURIAN, AR / DATE OF HEARING : 03/08/2016 / DATE OF PRONOUNCEMENT: 30/08/2016 $%/ O R D E R PER RAJPAL YADAV, ACCOUNTANT MEMBER AGGRIEVED WITH THE ORDER OF THE LD.CIT(A), VALSAD D ATED 4.1.2016 PASSED FOR THE ASSTT.YEAR 2012-13, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 2. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH THE RULE 8 OF THE INCOME TAX (APPELLATE TRIBUNAL) R ULES, 1963 - THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NATURE. IN BRIEF, HIS GRIEVANCE REVOLVES AROUND ONE MAJOR ISSUE WHICH RELATES TO DETERMINATI ON OF CAPITAL GAIN ON TRANSFER OF LAND. IN THE FIRST FOLD OF GRIEVANCE, THE ASSESSEE HAS PLEADED THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING LONG TERM CAP ITAL GAIN AT RS.33,46,640/- AS AGAINST CAPITAL LOSS OF RS.52,50,759/- DISCLOSED BY THE ASSESSEE. ITA NO.192/AHD/2016 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL. HE DERIVES SALARY INCOME FROM M/S.DHARMESH DISTILLERY, DAMAN. HE HAS FILED HIS RETURN OF INCOME ON 31.3.2013 DECLARING TOTAL INCOME AT RS .11,18,670/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT A ND NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE AO THAT THE ASSESSEE HAS SHOWN L ONG TERM CAPITAL LOSS OF RS.52,50,759/-. THE ASSESSEE HAD SOLD TWO PIECE OF LAND COMPRISED AT SURVEY NOS.165/1 AND 165/2 WITHIN THE REVENUE STATE OF VIL LAGE DABHEL, NANI DAMAN. SALE DEED WAS EXECUTED ON 21.10.2011. TOTA L AREA SOLD BY THE ASSESSEE IS OF 8800 SQ.METERS. HE SOLD THIS LAND A T THE RATE OF 1887.50 PER SQ.METER TO M/S.ALKEM LABORATORIES. THE ASSESSEE HAS SHOWN SALE CONSIDERATION AT RS.1,66,10,000/-. WHILE COMPUTING LONG TERM CAPITAL GAIN, THE ASSESSEE HAS ADOPTED COST OF ACQUISITION OF THE PROPERTY AT RS.316/- PER SQ.METER AS ON 1.4.1981. THE LD.AO WAS NOT SATISFI ED WITH THE CALCULATION OF LONG TERM CAPITAL LOSS AT RS.52,50,759/-. THEREFOR E, IN ORDER TO COLLECT CORRECT FAIR MARKET VALUE AS ON 1.4.1981, HE ISSUED NOTICE UNDER SECTION 133(6) OF THE INCOME TAX ACT, 1961 TO CIVIL REGISTRAR-CUM-SUB-REG ISTRAR, MOTI DAMAN ON 30.9.2014 AND REQUESTED HIM TO FURNISH AVERAGE FAIR MARKET VALUE PER SQ.METER OF THE ABOVE LOCATION AS ON 1.4.1981. ACCORDING TO THE AO, SUB-REGISTRAR HAS TRANSMITTED INFORMATION, AND ACCORDING TO THAT INFO RMATION, AVERAGE RATE WAS OF RS.2/- PER SQ.METER. THE LD.AO ACCORDINGLY CALC ULATED LONG TERM CAPITAL GAIN AT RS.1,64,71,840/-. WHEN THE AO HAS CONFRONT ED THE ASSESSEE AS TO WHY THIS CALCULATION SHOULD NOT BE ADOPTED, THE ASSESSE E FILED OBJECTIONS. THE AO HAS NOTICED THOSE OBJECTIONS ON PAGE NO.4 AND 5 OF THE IMPUGNED ORDER. THE ASSESSEE CONTENDED THAT CIVIL SUB-REGISTRAR FAILED TO CONSIDER THE NATURE OF LAND BEFORE ADOPTING AVERAGE RATE. HE HAS ALSO NOT TRANSMITTED INFORMATION WITH REGARD TO INDUSTRIAL LAND SOLD BY THE ASSESSEE IN VILLAGE DABHEL. INFORMATION RELATES TO AGRICULTURE LAND OF A DIFFER ENT REVENUE AREA. THE LD.AO ITA NO.192/AHD/2016 3 HAS MADE REFERENCE TO VALUATION OFFICER UNDER SECTI ON 55A OF THE INCOME TAX ACT. BUT BEFORE THE DVO COULD GIVE HIS REPORT, HE PASSED ASSESSMENT ORDER WITH A CONDITION THAT SINCE ASSESSMENT PROCEEDING I S GOING TO BE TIME BARRED, THE CAPITAL GAIN COMPUTATION WILL BE CHANGED SUBJEC T TO REPORT OF THE DVO. IN THIS WAY, THE LD.AO HAS MADE ADDITION OF RS.1,64,71 ,840/- IN THE CAPITAL GAIN. 4. ON APPEAL, THE LD.CIT(A) HAS IN PRINCIPAL CONCUR RED WITH THE WORKING MADE BY THE AO FOR ADOPTING THE COST OF ACQUISITION AS ON 1.4.1981. THE ASSESSEE HAS WORKED OUT THE RATE OF RS.316/- PER SQ .METER ON THE BASIS OF RATE DETERMINED BY THE DEPUTY SECRETARY, REVENUE DEPARTM ENT VIDE ORDER DATED 23.3.2012, WHEREBY, FAIR MARKET VALUE OF THE PROPER TIES HAVE BEEN SPECIFIED FOR DIFFERENT AREAS OF UNION TERRITORY, DAMAN. THE ASSESSEE HAS ADOPTED RATE AS ON 1.4.1981 BY TAKING REVERSE INDEXATION COST ON THE BASIS OF THIS ORDER. ACCORDING TO THE LD.CIT(A), THE ASSESSEE HAS SOLD L AND ON 21.10.2011. ON THAT DATE, THE ORDER OF THE DEPUTY SECRETARY, REVEN UE DEPARTMENT WAS NOT AVAILABLE WITH THE ASSESSEE FOR DETERMINING COST OF ACQUISITION AS ON 1.4.1981 BY TAKING A REVERSE INDEXATION. AS FAR AS THE RATE ADOPTED BY THE AO, THE LD.CIT(A) HAS OBSERVED THAT THE REPORT OF THE DVO H AS COME. THE AO HAS PASSED ORDER UNDER SECTION 154 AND RECTIFIED THE AS SESSMENT. THE ASSESSEE DID NOT CHALLENGE DVOS REPORT IN THE PROCEEDINGS TAKEN UP UNDER SECTION 154 BY THE AO, THEREFORE, HE IS PRECLUDED TO RAISE ANY OBJ ECTION ON THE DVOS REPORT IN THE FIRST APPELLATE STAGE. THE LD.DVO HAS DETER MINED THE COST OF ACQUISITION AS ON 1.4.1981 AT THE RATE OF RS.192/- PER SQ.METER AS AGAINST RS.2/- ADOPTED BY THE REVENUE DEPARTMENT. THE LD.C IT(A) IN THIS WAY, UPHELD THE COMPUTATION OF LONG TERM CAPITAL GAIN AT RS.35,46,640/-. 5. DISSATISFIED WITH THE ORDER OF THE LD.CIT(A), TH E ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD.COUNSEL FOR THE ASSE SSEE WHILE IMPUGNING THE ORDERS OF THE REVENUE AUTHORITIES HAS CONTENDED THA T THE ASSESSEE HAS FILED HIS ITA NO.192/AHD/2016 4 RETURN OF INCOME ON 31.3.2013. HE WAS REQUIRED TO COMPUTE THE CAPITAL GAIN ON THIS DATE. WHILE COMPUTING THE CAPITAL GAIN, TH E ORDER OF THE DEPUTY SECRETARY, REVENUE DEPARTMENT WAS VERY MUCH AVAILAB LE, AND THE ASSESSEE HAS ADOPTED THE COST OF ACQUISITION BY TAKING REVER SE INDEXATION FROM THE ORDER OF THE REVENUE SECRETARY, WHO HAS DETERMINED THE FAIR MARKET VALUE OF THE PROPERTY FOR THE PURPOSE OF STAMP DUTY. NO ONE HAS DISPUTED THOSE RATES. THEREFORE, THE LD.CIT(A) OUGHT TO HAVE NOT REJECTED THIS CONTENTION OF THE ASSESSEE. WITH REGARD TO DVOS REPORT, HE CONTENDE D THAT THIS ASPECT HAS BEEN CONSIDERED BY THE HONBLE JURISDICTIONAL HIGH COURT IN LARGE NUMBER DECISIONS, AND IT HAS BEEN PROPOUNDED THAT THE AO H AS NO POWER TO MAKE REFERENCE TO THE DVO FOR THE TRANSACTIONS WHICH HAV E BEEN EXECUTED BEFORE 1.7.2012. HE RELIED UPON THE DECISIONS OF THE HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. GAURANGINIBEN S. SHODHAN INLD. VS. CIT, 45 TAXMANN.COM 356 (GUJ) AND CIT VS. MANULABEN M. UNA DKAT, 55 TAXMANN.COM 62 (GUJ). WHILE TAKING US THROUGH SECT ION 55A, AS IT WAS APPLICABLE ON THE DATE OF SALE TRANSACTION, HE CONT ENDED THAT REFERENCE UNDER SECTION 55A(A) CAN BE MADE TO THE DVO, IF THE AO IS OF THE OPINION THAT VALUE SO CLAIMED BY THE ASSESSEE IS LESS THAN ITS FAIR MA RKET VALUE. THE AO WAS NOT POSSESSING ANY MATERIAL TO SAY THAT THE VALUE ADOPT ED BY THE ASSESSEE AS COST OF ACQUISITION WAS LESS THAN FAIR MARKET VALUE, RAT HER, THE AO WAS OF THE VIEW THAT IT IS ON THE HIGHER SIDE. IN SUCH SITUATION, THERE CANNOT BE ANY REFERENCE TO THE DVO. ONCE THE ASSESSEE WAS IN APPEAL BEFORE T HE LD.CIT(A) AND CHALLENGED THE VERY REFERENCE TO THE DVO, THEN, IT WAS NOT NECESSARY FOR THE ASSESSEE TO RAISE OBJECTIONS IN THE PROCEEDINGS UND ER SECTION 154. APART FROM THIS, THE LD.CIT(A) FAILED TO TAKE NOTE THAT SCOPE OF PROCEEDINGS UNDER SECTION 154 IS VERY LIMITED. THE AO HAS TO RECTIFY HIS ORD ER AS PER HIS FINDING IN THE ASSESSMENT ORDER, WHICH WAS SUBJECT TO DVOS REPORT . THE ASSESSMENT ORDER WAS ALREADY CHALLENGED BEFORE THE LD.CIT(A). THE L D.CIT(A) OUGHT TO HAVE DECIDED THIS ASPECT ON MERIT INSTEAD OF SIDELINING IT ON THE GROUND THAT THE ITA NO.192/AHD/2016 5 ASSESSEE HAD NOT RAISED ANY OBJECTION TO THE DVOS REPORT. THE LD.DR ON THE OTHER HAND RELIED UPON THE ORDER OF THE LD.AO. 6. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. WE FIND THAT THE ISSUE WHETHER A REFERE NCE CAN BE MADE TO THE DVO UNDER SECTION 55A FOR ASCERTAINING THE FAIR MARKET VALUE AS ON 1.4.1981 HAS BEEN CONSIDERED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE ABOVE TWO JUDGMENTS. RELEVANT DISCUSSION MADE BY THE HONBLE HIGH COURT IN THE CASE OF CIT VS. GAURANGINIBEN S. SHODHAN (SUPRA) READS A S UNDER: 15. COMING TO THE QUESTION OF REFERENCE TO DVO FOR ASCERTAINING THE FAIR MARKET VALUE AS ON 1.4.1981 ALSO, WE FIND THAT SUCH REFERENCE WAS NOT COMPETENT. WE HAVE NOTICED THAT PRIOR TO THE AM ENDMENT IN SECTION 55A WITH EFFECT FROM 1.7.2012 IN A CASE, THE VALUE OF THE ASSET CLAIMED BY THE ASSESSEE IS IN ACCORDANCE WITH THE ESTIMATE MADE BY THE REGISTERED VALUER, IF THE ASSESSING OFFICER WAS OF THE OPINION THAT THE VALUE SO CLAIMED WAS LESS THAN ITS FAIR MARKET VALU E AS ON 1.4.1981. IT WOULD NOT BE THE CASE OF THE ASSESSING OFFICER THAT THE VALUE OF THE ASSET SHOWN AS ON 1.4.1981 WAS LESS THAN THE FAIR M ARKET VALUE. SUCH CLAUSE, THEREFORE, AS IT STOOD AT THE RELEVANT TIME , HAD NO APPLICATION TO THE VALUATION AS ON 1.4.1981. WE ARE CONSCIOUS THAT WITH EFFECT FROM 1.7.2012, THE EXPRESSION NOW USED IN CLAUSE (A) OF SECTION 55A IS IS AT VARIANCE WITH ITS FAIR MARKET VALUE. THE SITUATION MAY, THEREFORE, BE DIFFERENT AFTER 1.7.2012. WE ARE, HOWEVER, CONCERNE D WITH THE PERIOD PRIOR THERETO. CLAUSE (B) OF SECTION 55A IS IN TWO PARTS AND PERMITS A REFERENCE TO DVO IF THE ASSESSING OFFICER IS OF THE OPINION THAT (I) THE FAIR MARKET VALUE OF THE ASSET EXCEEDS THE VALUE OF THE ASSET SO CLAIMED BY THE ASSESSEE BY MORE THAN SUCH PERCENTAGE OF THE VALUE OF THE ASSET SO CLAIMED OR BY MORE THAN SUCH AMOUNT AS MAY BE PR ESCRIBED IN THIS BEHALF; OR (II) THAT HAVING REGARD TO THE NATURE OF THE ASSET AND OTHER RELEVANT CIRCUMSTANCES, IT IS NECESSARY SO TO DO. S UB-CLAUSE(I) OF CLAUSE (B) ALSO FOR THE SAME REASONS RECORDED ABOVE, WOULD HAVE NO BEARING ON THE FAIR MARKET VALUE AS ON 1.4.1981. THE ASSESS ING OFFICER HAD NOT RESORTED TO SUB-CLAUSE(II) OF CLAUSE (B). IN ANY CA SE, CLAUSE(B) WOULD APPLY WHERE CLAUSE(A) DOES NOT APPLY SINCE IT START S WITH THE EXPRESSION IN ANY OTHER CASE. IN OTHER WORDS IF ASSESSEE HAS RELIED UPON A REGISTERED VALUERS REPORT, ASSESSING OFFICER CAN P ROCEED ONLY UNDER CLAUSE (A) AND CLAUSE(B) WOULD NOT BE APPLICABLE. ITA NO.192/AHD/2016 6 16. IN THE PRESENT CASE, ADMITTEDLY THE ASSESSEE HA D RELIED ON THE ESTIMATE MADE BY THE REGISTERED VALUER FOR THE PURP OSE OF SUPPORTING ITS VALUE OF THE ASSET. ANY SUCH SITUATION WOULD BE GOVERNED BY CLAUSE (A) OF SECTION 55A OF THE ACT AND THE ASSESSING OFF ICER COULD NOT HAVE RESORTED TO CLAUSE (B) THEREOF AS HELD BY THE DIVIS ION BENCH OF THIS COURT IN THE CASE OF HIRABEN JAYANTILAL SHAH VS. IN COME-TAX OFFICER AND ANOTHER REPORTED IN [2009] 310 ITR 31(GUJ).IN T HE SAID DECISION, IT WAS HELD AND OBSERVED AS UNDER:- 10. UNDER CLAUSE(A) OF SEC. 55A OF THE ACT UNDER T HE ASSESSING OFFICER IS ENTITLED TO MAKE THE REFERENCE TO THE VA LUATION OFFICER IN A CASE WHERE THE VALUE OF THE ASSET AS CLAIMED B Y THE ASSESSEE IS IN ACCORDANCE WITH THE ESTIMATE MADE BY THE REGI STERED VALUER, IF THE ASSESSING OFFICER IS OF THE OPINION THAT THE VALUE SO CLAIMED IS LESS THAN THE FAIR MARKET VALUE. IN ANY OTHER CASE, AS PROVIDED UNDER CLAUSE(B) OF SEC. 55A OF THE ACT, TH E ASSESSING OFFICER HAS TO RECORD AN OPINION THAT (I) THE FAIR MARKET VALUE OF THE ASSET EXCEEDS THE VALUE OF THE ASSET AS CLAIMED BY THE ASSESSEE BY MORE THAN SUCH PERCENTAGE OR BY MORE TH AN SUCH AN AMOUNT AS MAY BE PRESCRIBED; OR (II) HAVING REGARD TO THE NATURE OF THE ASSET AND OTHER RELEVANT CIRCUMSTANCES, IT I S NECESSARY TO MAKE SUCH A REFERENCE. 17. IN THE RESULT, WE SEE NO REASON TO INTERFERE. H OWEVER, WE HAVE GIVEN OUR INDEPENDENT REASONS AND SHOULD NOT BE SEEN TO H AVE CONFIRMED THE REASONINGS ADOPTED BY THE TRIBUNAL IN THE IMPUGNED JUDGMENT. TAX APPEAL IS DISMISSED. 7. SIMILARLY, IN THE CASE OF MANJULABEN M. UNADKAT (SUPRA), THE HONBLE HIGH COURT HAS MADE THE FOLLOWING OBSERVATIONS: 5. WE HAVE HEARD LEARNED ADVOCATES FOR BOTH THE PAR TIES AND PERUSED THE MATERIAL ON RECORD. WHILE DECIDING THE APPEAL, THE TRIBUNAL IN PARAGRAPH NO.6 OF ITS ORDER OBSERVED AS UNDER:- 6. WE HAVE DULY CONSIDERED THE RIVAL CON TENTIONS. A REFERENCE TO THE VALUATION OFFICER IS TO BE MADE UNDER SECTION 55A OF THE ACT. CLAUSE(A) OF SECTION 55A HAS A BEARING ON MAKING SUCH A REFERENCE. IT READS AS UND ER: 55.A. WITH A VIEW TO ASCERTAINING THE FAIR MARKI ET VALUE OF A CAPITAL ASSET FOR THE PURPOSES OF THIS CHAPTER, THE ASSESSING ITA NO.192/AHD/2016 7 OFFICER MAY REFER THE VALUATION OF CAPITA L ASSET TO A VALUATION OFFICER: (A) IN A CASE WHERE THE VALUE OF TH E ASSET AS CLAIMED BY THE ASSESSEE IS IN ACCORDANCE WITH THE ESTIMATE MADE BY A REGISTERED VALUER, IF THE ASSESSING OFFICER IS OF OPINION THAT THE VALUE SO C LAIMED IS LESS THAN ITS FAIR MARKET VALUE; THE PROVISION SPECIFICALLY PROVIDES THAT IF THE ASS ESSING OFFICER IS OF THE OPINION THAT THE VALUE DISCLOSED BY THE ASSESSEE IS LESS THAN THE FAIR MARKET VALUE ONLY, THEN HE CAN MAKE A REFERENCE TO THE DVO. NOW THE MOOT QUESTION IS AS TO HOW THE OPINION IS TO BE FOR MED BY THE ASSESSING OFFICER. WHETHER THIS OPINION IS SUBJECTIVE OR GUID ED BY SOME JUDICIOUS ACTIONS. THE FORMATION OF OPINION SHOULD HAVE RATIO NAL CONNECTION WITH THE MATERIAL BROUGHT ON RECORD. IT SHOULD NOT BE BA SED ON EXTRANEOUS OR IRRELEVANT REASONS. IN THE PRESENT CASE, THE ASSESS ING OFFICER BEFORE MAKING A REFERENCE TO THE VALUATION OFFICER HAS NOT BROUGHT ANYTHING ON THE RECORD INDICATING THAT THE ASSESSEE HAS DISC LOSED LESSER SALE PRICE. THERE IS NOTHING ON THE RECORD WHICH CAN SUG GEST TO IGNORE THE REPORT OF THE REGISTERED VALUER AND TO ADOPT THE RE PORT OF THE VALUATION OFFICER. BOTH THESE PERSONS ARE TECHNICAL PERSONS A ND BEFORE ACCEPTING THE EVIDENCE OF AN EXPERT, THERE SHOULD BE CORROBOR ATION OF SOME OTHER MATERIAL. TAKING INTO CONSIDERATION THE OVERALL FAC TS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE OPINION THAT THE ID. ASS ESSING OFFICER OUGHT TO HAVE NOT MADE A REFERENCE TO THE DVO FOR DETERMINAT ION OF THE FAIR MARKET VALUE OF THE PROPERTY IN DISPUTE. THE REPORT OF THE DVO ALONE IS NOT SUFFICIENT FOR ESTIMATING THE CAPITAL GAINS AT RS. 12,28,9077-.' 6. IN VIEW OF THE ABOVE, WE ARE IN COMPLETE AGREEME NT WITH THE VIEW TAKEN BY THE TRIBUNAL. THE TRIBUNAL HAS GIVEN COGEN T AND CONVINCING REASONS IN ARRIVING AT THE CONCLUSION. THEREFORE, T HE PRESENT APPEAL IS DISMISSED. ACCORDINGLY, THE QUESTION POSED IN THIS APPEAL IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 8. IN THE LIGHT OF THE ABOVE, IF WE EXCLUDE THE DVO S REPORT, THERE IS NO OTHER EVIDENCE AVAILABLE WITH THE AO, EXCEPT THE CA LCULATION SUBMITTED BY THE ASSESSEE BASED ON AN EXERCISE OF REVERSE INDEXATION FROM THE ORDER OF THE DEPUTY SECRETARY, REVENUE DETERMINING FAIR MARKET V ALUE OF THE LAND IN THIS AREA. OTHER EVIDENCE COLLECTED BY THE AO FROM SUB- REGISTRAR WAS NOT ITA NO.192/AHD/2016 8 CONSIDERED BY THE AO HIMSELF, BECAUSE, THE DVO HAS REPORTED VALUE OF THIS PROPERTY AT RS.192/- PER SQ.YARD. VALUE CONSIDERED BY THE AO AT RS.2/- PER SQ.YARD WAS NOT SUPPORTED BY ANY CORROBORATIVE EVID ENCE. THE ASSESSEE HAS POINTED OUT THAT THE RATES CONSIDERED BY THE AO WER E NOT OF SIMILAR LAND. THESE WERE FOR AGRICULTURE LAND HAVING DIFFERENT GE OGRAPHICAL LOCATIONS, WHEREAS THE LAND SOLD BY THE ASSESSEE WAS OF AN IND USTRIAL LAND. THEREFORE, THE CALCULATIONS MADE BY THE ASSESSEE DESERVE TO BE ACCEPTED. WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES ON THIS ISSUE AND DIRECT THE AO TO TAKE FIGURE OF LONG TERM CAPITAL LOSS OF RS.52,50,759/-. THIS FIGURE WOULD BE SUBJECT TO OUR FINDING HEREINBELOW ON THE SECOND AS PECT DISPUTED IN THIS APPEAL. 9. IN THE NEXT FOLD OF GRIEVANCE, THE ASSESSEE HAS PLEADED THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF R S.1,92,06,000/-. 10. BRIEF FACTS OF THE CASE ARE THAT A SURVEY ACTIO N WAS CARRIED OUT UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 AT THE PRE MISES OF M/S.ALKEM LABORATORIES ON 6.3.2014. ACCORDING TO THE AO, DUR ING THE COURSE OF SURVEY A LOOSE PAPER INVENORISED AS PAGE NO.21 OF ANNEXURE A /3 WAS FOUND AND IMPOUNDED. A PERUSAL OF THIS PAGE WOULD INDICATE T HAT IT CONTAINS SURVEY NUMBERS OF LAND SOLD BY THE ASSESSEE, AREA, CASH PA YMENT AND PAYMENT BY CHEQUE. ON THE BASIS OF THESE NOTING FOUND IN THIS PAGE, THE LD.AO FORMED AN OPINION THAT THE ASSESSEE HAS RECEIVED A SUM OF RS. 1,92,06,000/- AS ON-MONEY, OVER AND ABOVE, THE AMOUNTS STATED IN THE SALE DEED . THE LD.AO HAS CALLED UPON THE ASSESSEE AND CONFRONTED HIM. HE RECORDED STATEMENT OF THE ASSESSEE UNDER SECTION 131 OF THE ACT. THE LD.AO FURTHER OB SERVED THAT ONE COMPONENT OF THE CASH PAYMENT WAS OF RS.50.00 LAKHS .THIS PAY MENT WAS ALLEGED TO HAVE BEEN RECEIVED BY THE ASSESSEE IN THE MONTH OF AUGUS T, 2011 AND THE ASSESSEE HAS MADE DEPOSITS OF RS.50 LAKHS IN CASH IN GOA STA TE CO-OP. BANK. ARMED ITA NO.192/AHD/2016 9 WITH THESE TWO INFORMATION, THE LD.AO HAS CONFRONTE D THE ASSESSEE AS TO WHY HE FAILED TO DISCLOSE THIS ON-MONEY IN THE TOTAL SA LE CONSIDERATION OF THE LAND. THE ASSESSEE HAS CONTENDED THAT HE WAS HAVING A BUN GALOW SITUATED AT PLOT NO.17, ADMEASURING 625 SQ.METERS WHICH BEARS HOUSE NO.711/41 SITUATED AT PORVORIM WITHIN AREA OF SOCORRO VILLAGE, NORTH GOA. THE ASSESSEE HAD SOLD THIS BUNGALOW VIDE SALE AGREEMENT DATED 1.8.2011. IT WAS SOLD TO NINE PERSONS AND AGREEMENT WAS DULY NOTARIZED. THE ASSESSEE HAS RECEIVED INITIAL PAYMENT IN CASH, AND OUT OF THAT, RS.50 LAKHS WERE DEPOSITE D. THE LD.AO HAS CALLED FOR ALL NINE VENDEES. OUT OF NINE PERSONS, FIVE PERSON S APPEARED BEFORE HIM, WHOSE STATEMENTS WERE RECORDED BY THE AO UNDER SECT ION 131 OF THE ACT. THE AO HAS OBSERVED THAT THESE PERSONS WERE NOT HAVING DOCUMENTARY EVIDENCE, SUCH AS, BANK STATEMENTS, SOURCE OF INCOME ETC. IN THEIR POSSESSION TO ESTABLISH THAT THEY HAVE GIVEN CASH TO THE ASSESSEE. THEREFO RE, THE AO DID NOT ACCEPT THAT HE HAS RECEIVED RS.50 LAKHS FROM NINE PERSONS TOWARDS SALE OF BUNGALOWS. WHEN THE ASSESSEE ASKED FOR CROSS-EXAMI NATION OF PRINCIPAL OFFICER OF M/S.ALKEM LABORATORIES, THE AO HAS OBSER VED THAT HE HAS ISSUED SUMMONS AND HANDED OVER THESE SUMMONS TO THE ASSESS EE WITH DIRECTION THAT THE ASSESSEE SHOULD PRODUCE THE VENDEE. ACCORDING TO THE AO, THE ASSESSEE FAILED TO PRODUCE THE VENDEE, THEREFORE, NO CROSS-E XAMINATION COULD BE PROVIDED TO THE ASSESSEE OF THE VENDEE. ACCORDINGL Y, THE LD.AO MADE ADDITION OF RS.1,92,06,000/- IN THE TOTAL INCOME OF THE ASSESSEE. 11. APPEAL TO THE LD.CIT(A) DID NOT BRING ANY RELIE F TO THE ASSESSEE. THE LD.COUNSEL FOR THE ASSESSEE, WHILE IMPUGNING THE OR DER OF THE REVENUE AUTHORITIES HAS CONTENDED THAT THE SALE DEED WAS EX ECUTED ON 21.10.2011. SURVEY ON THE VENDEE WAS CARRIED OUT 6.3.2014 I.E. ALMOST AFTER TWO-AND-HALF YEARS. WHO WROTE THIS LOOSE PAPER WAS NOT DISCERNI BLE. WHETHER ENTRIES IN THE PAPER WERE PUT TO THE AUTHOR AND EXPLANATION WA S SOUGHT ? WHAT IS THE OBJECT OF THESE ENTRIES ? THE VENDEE HAS NOT ALLEG ED THAT IT HAS MADE PAYMENT ITA NO.192/AHD/2016 10 OF ON-MONEY TO THE ASSESSEE. THE AO HAS REJECTED E XPLANATION OF THE ASSESSEE ABOUT THE AVAILABILITY OF RS.50 LAKHS FROM SALE OF BUNGALOW AT GOA ON THE GROUND THAT VENDEES WHO APPEARED BEFORE HIM HAD NOT BROUGHT DOCUMENTARY EVIDENCE, SUCH AS BANK STATEMENT, SOURCE OF INCOME ETC. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT WITNESSES WERE NOT CALL ED UPON TO BRING BANK STATEMENTS, SOURCE OF INCOME ETC. THEIR ROLE WAS T O DEMONSTRATE WHETHER THEY HAVE ENTERED INTO AN AGREEMENT WITH ASSESSEE FOR PU RCHASE OF BUNGALOW OR NOT. IF THEY FAILED TO SHOW THE SOURCE, THEN THAT COULD BE EXAMINED IN THEIR CASES. HOW THIS REASONING OF THE AO WOULD FALSIFY THE CLAIM OF THE ASSESSEE, IS NOT DISCERNIBLE. THE LD.COUNSEL FOR THE ASSESSE E FURTHER CONTENDED THAT NO DOUBT ON PAGE NO.21 ENTRIES ARE AVAILABLE, BUT WHO WROTE THESE ON THIS PAGES AND WHAT WAS THE INTENTION, IT HAS NOT BEEN PROVED BY THE AO. HE COULD NOT SEEK EXPLANATION OF THE ASSESSEE ON A PAGE WHICH WA S NOT WRITTEN BY THE ASSESSEE OR NOT POSSESSED BY THE ASSESSEE. IT CAN ONLY BE A CORROBORATIVE PIECE OF EVIDENCE AGAINST THE ASSESSEE IN THE HANDS OF TH E AO, BUT ONUS WAS NOT UPON THE ASSESSEE TO DISPROVE THIS PAGE. IT IS THE AO WHO HAS TO PROVE THIS PAGE FIRST AGAINST THE ASSESSEE, AND ONLY THEREAFTE R, EXPLANATION OF THE ASSESSEE COULD BE SOUGHT. IN THIS WAY, THE LD.COUNSEL FOR T HE ASSESSEE PRAYED THAT ADDITION MADE BY THE AO ON ACCOUNT OF RECEIPT OF ON -MONEY BE DELETED. 12. ON THE OTHER HAND, THE LD.DR CONTENDED THAT PER USAL OF THIS PAGE WOULD MAKE IT CLEAR THAT THE ASSESSEE HAS RECEIVED ON-MON EY. THE PAGE HAS BEEN WRITTEN IN METHODOLOGICAL MANNER, WHICH DISCLOSES S URVEY NUMBERS, RATES ON WHICH THE LAND WAS SOLD AND COMPONENT OF MONEY - IN CASH AS WELL AS BY CHEQUE. SOME OF THE ENTRIES DULY TALLIED WITH ACTU AL HAPPENING OF INCIDENCES. IN SUCH SITUATION, PAGE OUGHT TO BE READ IN EVIDENC E FOR CHARGING THE ASSESSEE WITH LIABILITY. ITA NO.192/AHD/2016 11 13. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND G ONE THROUGH THE RECORD CAREFULLY. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE ASSESSEE WAS OWNER AND IN POSSESSION OF SURVEY NO.165/1 AND 165/ 2. LAND ADMEASURING 880 SQ.METERS SOLD BY THE ASSESSEE VIDE REGISTERED SALE DEED DATED 21.10.2011. THE ASSESSEE HAS DISCLOSED TOTAL SALE CONSIDERATION AT RS.1,66,10,000/-. DEPARTMENT WAS ABLE TO LAY ITS HAND ON A LOOSE PAPE R AT THE PREMISES OF THE VENDEES DURING SURVEY OPERATION. THIS PAGE DOES DI SCLOSE DETAILS OF LAND, AREA, RATE AT WHICH LAND WAS SOLD, CASH COMPONENT. DATES MENTIONED IN THIS PAGE ARE 01.08.2001 AND 31.8.2011. THE LD.AO OBSER VED THAT THERE WAS SOME ERROR IN MENTIONING OF FIRST DATE. ASSESSEE SOUGHT TO CROSS-EXAMINE PERSON WHO HAS AUTHORED THIS PAGE. THE LD.AO DID NOT MAKE EFFORTS EVEN TO KNOW WHO HAS AUTHORED THIS PAGE. HE TOOK THE PAGE AS GO SPEL TRUTH. THERE IS NO DISPUTE WITH REGARD TO THE PROPOSITION THAT WHOSOEV ER FOUND IN POSSESSION OF AN INCRIMINATING MATERIAL, THEN, ONUS WAS UPON HIM TO EXPLAIN THE MATERIAL. THAT IS, THE PAGE WAS FOUND FROM THE PREMISES OF TH E VENDEE AND IT IS THE VENDEE WHO HAS TO FIRST EXPLAIN THE NATURE OF WRITI NG IN THE PAGE. IT IS THE VENDEE WHO HAS TO EXPLAIN WHETHER ANY ON-MONEY WAS PAID OR NOT. WHEN WE FACED WITH THIS SITUATION DURING THE COURSE OF HEAR ING AND APPRAISED OURSELVES ABOUT THE FACT THAT IT WAS A STAY GRANTED APPEAL, I N WHICH STAY WAS GOING TO EXPIRE ON 10.9.2016, WE HAVE DIRECTED THE LD.DR TO PLACE ON RECORD THE FOLLOWING INFORMATION: 03-08-2016 PRESENT: ASSESSEE BY-SHRI SURESH K. KABRA, AR REVENUE BY - SHRI JAMES KURIAN, SR.DR IT IS A STAY GRANTED APPEAL, AND THE STAY IS GOING TO EXPIRE ON 11TH SEPTEMBER, 2016. THERE ARE TWO ISSUES INVOLVED IN T HIS APPEAL VIZ. DETERMINATION OF LONG TERM CAPITAL GAIN/LOSS, AND A DDITION OF RS.1.92 CRORES ALLEGED TO HAVE BEEN RECEIVED BY THE ASSESSE E AS ON-MONEY ON SALE OF LAND. ITA NO.192/AHD/2016 12 2. DURING THE COURSE OF HEARING, IT EMERGES OUT THA T AT THE PREMISES OF VENDEE, A SURVEY WAS CARRIED OUT IN WHICH A DOCUMEN T WAS RECOVERED EXHIBITING PAYMENT OF ON-MONEY. THE DOCUMENT HAS BE EN REPRODUCED ON PAGE NO.9 OF THE ASSESSMENT ORDER. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE MADE A PRAYER FOR CROSS-E XAMINATION OF AUTHOR OF THIS PAGE OR ANY REPRESENTATIVE OF THE VE NDEE. THIS PRAYER WAS NOT ACCEDED TO BY THE AO. 3. WE HAVE HEARD THIS APPEAL, BUT WE WANT THE FOLLO WING INFORMATION FROM THE DEPARTMENT: I) WHETHER ANY REPRESENTATIVE OF THE VENDEE, WHI LE EXPLAINING THIS PAPER DURING THE COURSE OF SURVEY, MADE ANY DISCLOS URE ABOUT PAYMENT OF ANY MONEY TO THE ASSESSEE. II) WHETHER ANY INQUIRY IS MADE IN THE CASE OF VEND EE OR ANY ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT ETC. WAS MADE IN VENDEE'S CASE. THE ID.DR IS DIRECTED TO COLLECT THIS INFORMATION A ND FURNISH TO THE BENCH CLERK WITHIN 15 DAYS. COPY OF THIS ORDER BE S UPPLIED TO THE ID.DR FOR COMPLIANCE. 14. BUT NO INFORMATION HAS BEEN PLACED BY THE DEPAR TMENT BEFORE THE TRIBUNAL. IT IS NOT ASCERTAINABLE WHETHER VENDEE H AS ALLEGED THAT ON-MONEY WAS PAID TO THE ASSESSEE. THE DEPARTMENT IS EXPECT ING THE ASSESSEE TO PROVE NEGATIVE I.E. HE HAS NOT RECEIVED ON-MONEY. TO OUR MIND, FIRST PROPOSITION IS THAT THE LD.AO SHOULD PROVE THAT THE ASSESSEE HAS R ECEIVED ON-MONEY. ONE LOOSE PAPER FOUND AT THE PREMISES OF A THIRD PARTY, AUTHORED BY A THIRD PARTY, COULD NOT BE CONSIDERED AS A SUFFICIENT EVIDENCE TO ACCEPT THAT ASSESSEE HAS RECEIVED ON-MONEY. THIS PIECE OF EVIDENCE CAN BE A CORROBORATIVE PIECE OF EVIDENCE FOR CONFRONTING THE ASSESSEE, BUT IT IS NO T A CONCLUSIVE PROOF. THE ASSESSEE HAS SPECIFICALLY ASKED FOR AN OPPORTUNITY TO CROSS-EXAMINE PRINCIPAL OFFICER OF THE VENDEE COMPANY. BUT NO SUCH OPPORTU NITY WAS GRANTED TO THE ASSESSEE. HONBLE SUPREME COURT IN RECENT DECISION PASSED IN THE CASE OF M/S.ANDAMAN TIMBER INDUSTRIES VS. COMM. OF CENTRAL EXCISE IN CIVIL APPEAL NO.4228 OF 2006 HAS DEALT WITH SUCH SITUATIO N AND THE HONBLE COURT ITA NO.192/AHD/2016 13 HAS OBSERVED THAT IF STATEMENT OF A WITNESS IS BEIN G USED BY AN AUTHORITY WITHOUT GIVING AN OPPORTUNITY TO CROSS-EXAMINE TO T HE AFFECTED PERSON, THEN IMPUGNED ORDER COULD BE A NULLITY. THE OBSERVATION OF THE HONBLE SUPREME COURT IN THIS CONNECTION READS AS UNDER: . ACCORDING TO US, NOT ALLOWING THE ASSESSEE TO CROSS -EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY INASMUCH AS IT AMOUNT ED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. IT IS TO BE BORNE IN MIND THAT THE ORDER OF THE COMMISSIONER WAS BASED UPON THE STATEMENTS GIVEN BY THE AFORESAID TWO WITNESSES. EVEN WHEN THE ASSESSEE DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANTED TO CROSS-EXAMINE, THE ADJUDIC ATING AUTHORITY DID NOT GRANT THIS OPPORTUNITY TO THE ASSESSEE. IT WOULD BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUD ICATING AUTHORITY HE HAS SPECIFICALLY MENTIONED THAT SUCH AN OPPORTUN ITY WAS SOUGHT BY THE ASSESSEE. HOWEVER, NO SUCH OPPORTUNITY WAS GRAN TED AND THE AFORESAID PLEA IS NOT EVEN DEALT WITH BY THE ADJUDI CATING AUTHORITY. AS FAR AS THE TRIBUNAL IS CONCERNED, WE FIND THAT REJE CTION OF THIS PLEA IS TOTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATED T HAT CROSS- EXAMINATION OF THE SAID DEALERS COULD NOT HAVE BROU GHT OUT ANY MATERIAL WHICH WOULD NOT BE IN POSSESSION OF THE AP PELLANT THEMSELVES TO EXPLAIN AS TO WHY THEIR EX-FACTORY PRICES REMAIN STATIC. IT WAS NOT FOR THE TRIBUNAL TO HAVE GUESS WORK AS TO FOR WHAT PURP OSES THE APPELLANT WANTED TO CROSS-EXAMINE THOSE DEALERS AND WHAT EXTR ACTION THE APPELLANT WANTED FROM THEM. 15. IN THE PRESENT CASE ALSO, THE ASSESSEE HAD MADE A PRAYER THAT LET HE BE GIVEN AN OPPORTUNITY TO CROSS-EXAMINE THE PERSON WH O HAS WRITTEN THIS PAGE OR WHO HAS ALLEGED THAT ON-MONEY WAS PAID TO HIM. NO SUCH OPPORTUNITY WAS GIVEN TO THE ASSESSEE BY THE DEPARTMENT. AS FAR AS THE OTHER CORROBORATIVE CIRCUMSTANCES REFERRED BY THE AO IN THE ASSESSMENT ORDER I.E. DEPOSITS OF RS.50 LAKHS IN GOA STATE COOPERATIVE BANK IS CONCER NED, STAND OF THE ASSESSEE WAS THAT HE HAS AGREED TO SELL A BUNGALOW OWNED BY HIM IN GOA. THERE WERE ITA NO.192/AHD/2016 14 NINE PERSONS WHO HAVE ENTERED INTO AN AGREEMENT WIT H HIM. THE ASSESSEE HAS PRODUCED FIVE VENDEES OUT OF NINE. THE ASSESSEE HA S PRODUCED NOTARY WHO HAS NOTARIZED THE AGREEMENT. THE AO DID NOT RELY U PON THE STATEMENT OF THE VENDEE ON THE GROUND THAT THEY WERE NOT POSSESSING COPY OF BANK STATEMENT OR EVIDENCES EXHIBITING THE SOURCE OF INCOME. IN OUR OPINION, THEIR ROLE AS WITNESS WAS TO DEPOSE WHETHER THEY HAVE ENTERED INT O AN AGREEMENT WITH THE ASSESSEE FOR PURCHASE OF BUNGALOW OR NOT. THEY CON FIRMED THIS TRANSACTION. THE AO COULD NOT FOUND FAULT IN THEIR STATEMENT WIT H REGARD TO THIS DEPOSITION. IF THEY DO NOT HAVE THE SOURCE OF PAYMENTS MADE TO THE ASSESSEE, AT THE TIME WHEN APPEARED BEFORE THE AO, THEN THAT CANNOT BE GR OUND TO JUST IGNORE THEIR EVIDENCE. IN THAT CASE, NOTICE CAN BE ISSUED IN TH EIR CASES AND IT COULD BE EXAMINED IN THEIR CASES. THESE TWO ASPECTS ARE TOT ALLY DIFFERENT TO EACH OTHER. THEREFORE, IN OUR OPINION, THE LD.AO WAS NOT JUSTIF IED IN REJECTING THE CONFIRMATIONS GIVEN BY THESE PERSONS. IT IS ALSO T O BE SEEN AS TO WHY THE ASSESSEE WOULD TAKE MONEY FROM DAMAN TO GOA FOR DEP OSING THE MONEY IN THE GOA STATE COOPERATIVE BANK. THE DEPOSITS COULD BE THERE, BECAUSE BUNGALOW WAS SITUATED IN GOA. NO DOUBT THERE IS NO NEGATIVE EQUITY IN LAW, I.E. IF NO ACTION WAS TAKEN IN THE CASES OF VENDEE, IT DOES NOT MEAN THAT THE ASSESSEE COULD ALSO BE ABSOLVED, BUT HAD ANY ACTION WAS TAKEN AGAINST THE VENDEE IN WHOSE PREMISES EVIDENCE OF PAYMENT OF ON- MONEY WAS ALLEGEDLY FOUND, THE CASE OF THE DEPARTMENT WOULD BE ON STRON GER FOOTING. IN SPITE OF INQUIRY ABOUT THE STATUS OF ACTION TAKEN AGAINST TH E VENDEE, THE DEPARTMENT FAILED TO UPDATE THE TRIBUNAL IN THIS ASPECT. THERE FORE, IN OUR OPINION, THE AO FAILED TO BRING CONCLUSIVE EVIDENCE ON RECORD TO SA Y THAT THE ASSESSEE HAS RECEIVED ON-MONEY. IT IS ALSO PERTINENT TO MENTION THAT AO HAS MADE AN ADDITION OF RS.1,92,06,000/- IN THE TOTAL INCOME OF THE ASSESSEE. TO OUR MIND, THE AO HAS ERRED IN MAKING A SEPARATE ADDITION. AT THE MOST, IT COULD BE PART OF TOTAL SALE CONSIDERATION, AND THE CAPITAL GAIN O UGHT TO BE COMPUTED ON THE BASIS OF TAKING THIS AMOUNT. A THOUGHT STRUCK TO O UR MIND THAT LET IT BE ITA NO.192/AHD/2016 15 INQUIRED AGAIN AT THE LEVEL OF AO, BUT WHEN WE APPR AISED OURSELVES ABOUT THE ULTIMATE TAX EFFECT ON THIS EXERCISE, THEN IT REVEA LED THAT EVEN IF FOR ARGUMENT SAKE THIS AMOUNT IS ADDED, THEN, LONG TERM CAPITAL GAIN ON IT WILL BE ROUGHLY RS.38 LACS. IT WILL BE SET OFF AGAINST THE LTC LOS S ACCEPTED AT RS.52,50,759/-. THE ASSESSEE IS A SALARIED PERSON. NO CARRY FORWAR D OF LOSS WOULD AFFECT HIM. THUS, IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF TH E VIEW THAT ADDITION OF RS. 1,92,06,000/- IS NOT SUSTAINABLE IN THE CASE OF THE ASSESSEE, BECAUSE AO FAILED TO BRING CONCLUSIVE EVIDENCE ON RECORD. WE ALLOW T HIS GROUND OF APPEAL, AND DELETE THIS ADDITION. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE COURT ON 30 TH AUGUST, 2016 AT AHMEDABAD. SD/- SD/- (ANIL CHATURVEDI) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER