MANISH CHHABRA, MUMBAI V. ACIT CIR 20(2), MUMBAI

ITA 2046/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48973 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 25-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 12-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Business income; Salary income; Opportunity of being heard
• Section: 10(10AA); 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND R.K.PANDA (A.M ) ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) MR.MANISH CHHABRA C/O N.VARMA & ASSOCIATES 56-B MITTAL TOWER, 210, NARIMAN POINT MUMBAI-400021. PAN: AABPC0432F ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 20(2), PIRAMAL CHAMBERS, MUMBAI APPELLANT V/S RESPONDENT APPELLANT BY : SHRI K.GOPAL AND JITENDRA SINGH RESPONDENT BY : SHRI R.K.GUPTA. O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 3.12.2009 PASSED BY THE LEA RNED COMMISSIONER OF INCOME TAX (A) FOR THE ASSESSMENT YEAR 2005-06. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE AN INDIVIDUAL DERIVES INCOME FROM SALARY, HOUSE PRO PERTY, BUSINESS INCOME AS PARTNER IN THE FIRMS, CAPITAL GA IN AND INCOME FROM OTHER SOURCES. THE RETURN WAS FILED D ECLARING TOTAL INCOME OF RS.49,84,640/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO INTERALIA OBSERVED T HAT THE ASSESSEE IN FORM NO.16 ATTACHED WITH THE RETURN OF INCOME ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 2 2 FROM M/S HYGENIC RESEARCH INSTITUTE CLAIMED AN EX EMPTION OF RS.6,50,000/- UNDER SECTION 10 OF THE INCOME TAX ACT, 1961 ( THE ACT). THE ASSESSEE WAS ASKED TO EXPLA IN AS TO HOW THE EXEMPTION OF RS.6,50,000/- HAS BEEN CLAIME D FROM THE INCOME SALARY. IN RESPONSE, IT WAS SUBMITTED B Y THE ASSESSEE THAT THE ASSESSEE HAS RESIGNED AS CEO OF M/S HYGENIC RESEARCH INSTITUTE WITH EFFECT FROM 31.12. 2004. THEREAFTER, THE ASSESSEE WAS ADMITTED A PARTNER IN THE SAME FIRM M/S HYGENIC RESEARCH INSTITUTE W.E.F. 1.1.200 5 IN THE CAPACITY AS KARTA OF KAILASH CHABRA HUF VIDE PAR TNERSHIP DEED DATED 14.3.2005. THE ASSESSEE ON RESIGNATION HAS RECEIVED GRATUITY AND LEAVE ENCASHMENT AMOUNTING TO RS.6,50,000/- I.E. RS.3,00,000/- AS LEAVE ENCASHMEN T AND FURTHER RS.3,50,000/- AS GRATUITY, WHICH WAS CLAIM ED EXEMPTED UNDER SECTION 10(10AA)(II) AND UNDER SECTI ON 10(10)(III) OF THE ACT , RESPECTIVELY. IN THE AS SESSMENT THE AO HAS OBSERVED THAT AS PER THE PROVISIONS OF SECTI ON 10(10AA)(II) AND SECTION 10(10)(III) THE EXEMPTION IS AVAILABLE ONLY ON RETIREMENT AND NOT ON RESIGNATION. IT WAS FURTHER OBSERVED THAT AS PER THE ASSESSEES LETTER DATED 2 3.10.2007 HE HAS RESIGNED AS CEO OF M/S HYGENIC RESEARCH I NSTITUTE, WHICH CANNOT BE TERMED AS RETIREMENT. FOR THIS PR OPOSITION, THE AO HAS RELIED ON THE ORDER OF THE TRIBUNAL I N THE CASE OF ITO V/S CAPT.S.S.DHILLON REPORTED IN 27 TTJ 156, WHEREIN ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 3 3 IT HAS BEEN OBSERVED THAT THE TERM RETIREMENT WHEN READ WITH SUPERANNUATION HAS A CLEAR MEANING THAT A PER SON RETIRES AFTER COMPLETION A PERIOD OF SERVICE WHICH ENTITLES HIM TO CERTAIN RETIREMENT BENEFITS LIKE PENSION, GR ATUITY ETC. THE SECTION, HOWEVER ENVISAGES RETIREMENT OTHER THA N THE SUPERANNUATION. HOWEVER, IT IS NOT THE SAME THAT AS RESIGNATION FROM THE CONTRACT SERVICE FIT IN THE W ORDS RETIREMENTS OTHERWISE THAN ON SUPERANNUATION, BECAU SE RESIGNATION AND RETIREMENT ARE NOT THE SAME THING. ACCORDINGLY, THE TRIBUNAL HAS HELD THAT THE APPELL ANT IN THAT CASE, IS NOT ELIGIBLE FOR EXEMPTION UNDER SECTION 1 0(AA) (I) OR (II) OF THE ACT. THE AO HAS ALSO DISTINGUISHED TH E CASE LAWS CITED BY THE AR OF THE ASSESSEE IN THE CASE OF CI T V/S D.P.MALHOTRA (229 ITR 394) AND CIT V/S R.J.SHAHNEY (159 ITR 160) ON THE GROUND THAT THE FACTS OF THE TWO DE CISIONS ARE DIFFERENT. HE HAS ALSO NEGATED THE CONTENTION OF THE ASSESSEE REGARDING THE APPLICATION OF BOARDS NOTI FICATION DATED 19.6.1973. ULTIMATELY, THE AO HAS HELD THAT THE ASSESSEE HIMSELF HAS AGREED THAT HE HAS CONTINUED WITH THE SAME JOB PROFILE IN WHICH HE WAS WORKING PRIOR TO H IS RESIGNATION. THEREFORE, ACCORDING TO THE AO, THE ENTIRE ARRANGEMENT IS MERELY A PLOY TO EVADE THE TAX. HE HAS FURTHER HELD THAT EXEMPTION UNDER SECTION 10(10) A ND 10(AA) ARE AVAILABLE ONLY IN CASE OF RETIREMENT OR TERMINA TION OF ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 4 4 EMPLOYMENT. SINCE THE ASSESSEES JOB PROFILE HAS N OT CHANGED AND HE HAS CONTINUED WITHOUT ANY BREAK IN THE SAME FIRM WORKING UNDER SAME CAPACITY THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION AS CLAIMED. ACCORDINGLY, T HE EXEMPTION CLAIMED WAS DISALLOWED. 3. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (A) WHILE AGREEING WITH THE VIEWS OF THE AO IN MAKI NG THE DISALLOWANCE MADE BY HIM ALSO RELIED ON THE DECISI ON OF THE HONBLE SUPREME COURT IN THE CASE OF MCDOWELL AND CO. LTD. V/S CTO 154 ITR 148(SC) FOR THE PROPOSITION TH AT THE ENTIRE ARRANGEMENT MADE BY THE APPELLANT IS ONLY T O REDUCE HIS TAX LIABILITY WHICH IS A COLOURABLE DEVICE AND HENCE, HE CONFIRMED THE DISALLOWANCE MADE BY THE AO. 4. BEING AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN GROUND NOS.1.1 TO 1.3, S USTENANCE OF DISALLOWANCE OF RS.6,50,000/- MADE BY THE AO. 5. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE WHILE REITERATING THE SAME SUBMISSIONS AS SUBMITTED BEFORE THE AO AND THE LEARNED COMMISSION ER OF INCOME TAX(A) STRONGLY RELIED ON THE DECISION OF T HE HONBLE ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 5 5 JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S D .P.MALHOTRA (1998) 229 ITR 394 (BOM), WHEREIN IT HAS BEEN HELD THAT THE WORD RETIRE UNDER SECTION 10(10AA) OF THE ACT IS OF WIDE IMPORT AND INCLUDES RETIREMENT BY RESIGNATION THU S LEAVE ENCASHMENT ON RESIGNATION IS THEREFORE ELIGIBLE FOR EXEMPTION UNDER SECTION 10(10AA). HE, THEREFORE, SUBMITS THAT THE FACTS OF THE ASSESSEES CASE ARE SIMILAR TO THE CASE DECI DED BY THE HON. JURISDICTIONAL HIGH COURT, THEREFORE FOLLOWING THE SAME THE EXEMPTION OF RS.6,50,000/- AS CLAIMED BY THE ASSESSEE BE ALLOWED IN FULL. WITH REGARD TO THE DECISION IN THE CASE OF MCDOWELL AND CO. LTD. (SUPRA) RELIED ON BY THE LEA RNED COMMISSIONER OF INCOME TAX (A), HE SUBMITS THAT IN VIEW OF THE ABOVE DECISION (SUPRA), THE RELIANCE PLACED BY THE LEARNED COMMISSIONER OF INCOME TAX (A) IN THE CASE OF MCDOWELL AND CO. LTD. (SUPRA) IS NOT APPLICABLE. 6. ON THE OTHER HAND, THE LEARNED DR SUPPORTS THE ORDER OF THE AO AND THE LEARNED COMMISSIONER OF INCOME TA X (A). 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS THERE IS NO DISPUTE THAT THE ASSESSEE WAS IN SERVICE WITH M/ S HYGENIC RESEARCH INSTITUTE SINCE 1 ST JULY, 1991 AND HAS RESIGNED ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 6 6 FROM THE FIRM ON 31.12.2004 AND AS RETIREMENT BENEF ITS THE ASSESSEE RECEIVED RS.3,00,000/- AS LEAVE ENCASHMENT WHICH HE CLAIMED AS EXEMPT UNDER SECTION 10(10AA)(II) OF THE ACT AND ALSO RECEIVED GRATUITY OF RS.3,50,000/- AND CL AIMED AS EXEMPT UNDER SECTION 10(10)(III) OF THE ACT. HOWEV ER, THE AO DISALLOWED THE SAME ON THE GROUND THAT AS PER TH E ASSESSEES LETTER DATED 23.10.2007, THE ASSESSEE HA S RESIGNED AS CEO OF M/S HYGENIC RESEARCH INSTITUTE WHICH CANNOT BE TERMED AS RETIREMENT AND FOR THIS PROPOS ITION, THE RELIANCE WAS ALSO PLACED BY THE AO IN THE CASE OF CAPT.S.S.DHILLON (SUPRA). PER CONTRA, THE CASE OF THE ASSESSEE IS THAT IN VIEW OF THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF D.P.MALHOT RA (SUPRA) THE WORD RETIRE UNDER SECTION 10(10AA) IS OF WI DE IMPORT AND INCLUDES RETIREMENT BY RESIGNATION, THEREFORE FOLLOWING THE SAME THE LEAVE ENCASHMENT AND GRATUITY ON RESI GNATION ARE ALLOWABLE AS EXEMPTION UNDER SECTION 10(10AA) (II) AND UNDER SECTION 10(10)(III) OF THE ACT. 8. IN D.P.MALHOTRA (SUPRA) THE ISSUE BEFORE THEIR L ORDSHIPS WAS AS UNDER : 'WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN LAW IN UPHOLDING THE DECISION OF THE CIT(A) ALLOWING DEDUCTION UNDER S. 10(10AA) OF THE IT ACT, 1961 EVEN THOUGH THE ASSESSEE RESIGNED FROM THE EMPLOYMENT AS PER THE ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 7 7 SALARY CERTIFICATE ISSUED BY THE EMPLOYER, VIZ., SH IPPING CORPORATION OF INDIA LTD. ?' IT HAS BEEN HELD AS UNDER : 6. THUS BOTH 'RETIREMENT' AND 'RESIGNATION' RESULT IN THE CONCLUSION OF THE SERVICE CAREER. IN FACT RESIGNATI ON FROM SERVICE IS ALSO ONE OF THE MODES OF RETIREMENT FROM SERVICE. R ESIGNATION IS A VOLUNTARY ACT OF THE EMPLOYEE TO RETIRE FROM SERVIC E. ONCE AN EMPLOYEE RESIGNS, HIS SERVICE STAND TERMINATED FROM THE DATE ON WHICH HIS LETTER OF RESIGNATION IS ACCEPTED BY THE APPROPRIATE AUTHORITY, UNLESS THERE IS ANY LAW OR STATUTORY RUL E GOVERNING THE CONDITIONS OF SERVICE TO THE CONTRARY. IN OTHER WOR DS, ON ACCEPTANCE OF RESIGNATION, THE EMPLOYEE STANDS RETIRED FROM SE RVICE. THE WORD 'RETIREMENT' HAS NOT BEEN USED IN CL. (10AA) IN THE RESTRICTED SENSE TO MEAN 'RETIREMENT ON SUPERANNUATION'. ON THE OTHE R HAND, IT IS CLEAR FROM THE LANGUAGE OF CL. (10AA) ITSELF THAT I T HAS BEEN USED IN THE WIDEST POSSIBLE TERMS TO MEAN AND INCLUDE ALL C ASES OF RETIREMENT, WHETHER ON SUPERANNUATION OR OTHERWISE. WHAT IS RELEVANT IS 'RETIREMENT' - HOW IT TOOK PLACE IS IMM ATERIAL FOR THE PURPOSE OF THIS CLAUSE. IT IS, THEREFORE, CLEAR THA T IF ON RETIREMENT, EVEN ON RESIGNATION BY THE EMPLOYEE, AN EMPLOYEE GE TS BY WAY OF LEAVE ENCASHMENT ANY AMOUNT, S. 10(10AA) WOULD APPL Y AND THE ASSESSEE WILL BE ENTITLED TO THE BENEFIT OF THE SAI D CLAUSE TO THE EXTENT MENTIONED THEREIN. 7. WE ARE SUPPORTED OF OUR ABOVE OPINION BY THE DEC ISION OF THE MADRAS HIGH COURT IN CIT VS. R. J. SHAHNEY (1986) 1 59 ITR 160 (MAD) : TC 32R.558. IN THAT CASE ALSO THE ASSESSEE HAD RESIGNED AND RETIRED FROM EMPLOYMENT. THE CONTENTION OF THE REVENUE WAS THAT SINCE THE WORDS 'WHETHER ON SUPERANNUATION OR OTHERWISE' QUALIFIED RETIREMENT, UNLESS IT WAS A CASE OF RETIR EMENT FROM SERVICE ON ATTAINING A PARTICULAR AGE, OR SOME OTHER REASON , A CASE OF RESIGNATION WOULD NOT TAKE IN. REPELLING THIS CONTE NTION OF THE REVENUE, THE MADRAS HIGH COURT HELD : ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 8 8 'THE RETIREMENT MAY BE OF VARIOUS KINDS. IT MAY BE ON SUPERANNUATION OR VOLUNTARY. IF THERE IS ANY VOLUNT ARY RETIREMENT FROM SERVICE, WE ARE SATISFIED THAT THE PROVISIONS OF S. 10(10AA) WOULD APPLY.' 8. IN VIEW OF THE ABOVE, WE ANSWER THE QUESTION REF ERRED TO US IN THE AFFIRMATIVE AND IN FAVOUR OF THE ASSESSEE. 9. IN CIT V/S WALFORT SHARE AND STOCK BROKERS P.L TD. (2009) 310 ITR 421(BOM) IT HAS BEEN OBSERVED AND HE LD AS UNDER (PAGE 443): . STRONG RELIANCE WAS PLACED BY THE COUNSEL FOR THE R EVENUE ON THE DECISION OF THE APEX COURT IN THE CASE OF MCDOW ELL & CO.(1985) 154 ITR 148 IN SUPPORT OF HIS NTENTION THAT THE TRANSACTION IN QUESTION WAS A COLOURABLE TRANSACTION ENTERED INTO SOLELY FOR THE PURPOSE OF CREATING ARTIFICIAL LOSS AND THEREBY RED UCE THE TAX LIABILITY. THAT DECISION HAS NO RELEVANCE TO THE FACTS OF THE PRESENT CASE. IN THAT CASE THE ASSESSEE THEREIN WAS LIABLE TO PAY TH E EXCISE DUTY ON THE TOTAL SALE CONSIDERATION. HOWEVER, BY AN AMICAB LE DEVICE, THE ASSESSEE THEREIN MADE THE BUYER TO PAY EXCISE DUTY. SINCE THE BUYER WAS NOT LIABLE TO PAY EXCISE DUTY, IT WAS EVI DENT THAT THE AMOUNT OF EXCISE DUTY PAID BY THE BUYER TO THE DEPA RTMENT WAS NOTHING BUT THE SALE PRICE LIABLE TO BE INCLUDED IN THE SALE CONSIDERATION. IN THAT CONTEXT, IT WAS HELD THAT TH E TRANSACTION WAS A COLOURABLE DEVICE. IN THE PRESENT CASE, NONE OF THE TRANSACTIONS ARE FOUND TO VIOLATE ANY OF THE LEGAL PROVISIONS. THERE FORE, THE DECISION OF THE APEX COURT IN THE CASE OF MCDOWELL & CO. LTD . DOES NOT SUPPORT THE CASE OF THE REVENUE. IT IS PERTINENT TO NOTE THAT THE APEX COURT IN THE CASE OF AZADI BACHAO ANDOLAN (2003) 263 ITR 706 HAS HELD THAT EVE RY TRANSACTION OR ARRANGEMENT WHICH IS PERFECTLY PERMI SSIBLE IN LAW, BUT HAS THE EFFECT OF REDUCING THE TAX BURDEN OF THE AS SESSEE CANNOT BE TREATED AS ILLEGITIMATE AND IGNORED. IN THE PRESENT CASE, THE ASSESSEE HAS DEMONSTRATED THAT THE UNITS WERE PURCH ASED FOR EARNING DIVIDEND INCOME AND THAT THE SALE OF THE UN ITS IMMEDIATELY AFTER RECEIVING THE DIVIDEND WAS A COMMERCIAL DECIS ION TAKEN BY THE ASSESSEE. EVEN THE MAJORITY DECISION IN THE CASE OF GRIFFITHS (1965) 58 ITR 328 (PC) SUPPORTS THE CASE OF THE ASSESSEE T HAT THE TRANSACTION IN QUESTION WAS A TRADING TRANSACTION A ND IN THE ABSENCE OF ANY ALLEGATION THAT IT WAS A SHAM TRANSA CTION, THE ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 9 9 ASSESSEE WAS ENTITLED TO CLAIM SET OFF OF THE LOSS IRRESPECTIVE OF THE FISCAL IMPACT. THE MINORITY VIEW IN GRIFFITHS CASE WHICH WAS FOLLOWED IN FINSBURRY SECURITIES (1966) 43 TC 591(HL) AND LU PTON (1971) 47 TC 580 (HL) WOULD MAKE NO DIFFERENCE, BECAUSE, THE FACTS IN THOSE CASES ARE WHOLLY DISTINGUISHABLE. THE DECISION OF T HE APEX COURT IN THE CASE OF C.C.E. V/S. MODI ALKALIES & CHEMICALS L TD. REPORTED IN 171 E.L.T. 155 IS ALSO DISTINGUISHABLE ON FACTS BEC AUSE, IN THAT CASE, THE FINDING RECORDED WAS THAT BOTH THE ENTITI ES WERE INTER DEPENDENT AND THERE WAS COMMON FINANCIAL MANAGEMENT . IN THE PRESENT CASE, ADMITTEDLY MUTUAL FUND AND THE ASSESS EE ARE TWO INDEPENDENT AND WHOLLY UNCONNECTED ENTITIES. 10. IN THE PRESENT CASE MERELY BECAUSE THE ASSESS EE HAS JOINED THE SAID FIRM AS PARTNER IN THE CAPACITY OF KARTA OF HUF W.E.F. 1.1.2005 AFTER RESIGNING AS CEO FROM M /S HYGENIC RESEARCH INSTITUTE ON 31.12.2004 DOES NOT MEAN THAT THERE IS A COLOURABLE DEVICE AS THE EXEMPTIO N OF RETIREMENT BENEFITS I.E. LEAVE ENCASHMENT AND GRA TUITY WAS CLAIMED BY THE ASSESSEE UNDER THE RELEVANT PROVI SIONS OF THE ACT, SUPPORTED BY THE DECISION OF THE HON. JU RISDICTIONAL HIGH COURT IN THE CASE OF D.P.MALHOTRA (SUPRA) AND MOREOVER IT IS NOT THE CASE OF THE REVENUE THAT THE FIRM IS NOT A GENUINE FIRM OR THE ASSESSEES HUF IS BOGUS OR T HE ASSESSEE EVEN AFTER RESIGNATION IS WORKING AS CEO O F THE FIRM. THIS BEING SO, WE ARE OF THE VIEW THAT THE L EARNED COMMISSIONER OF INCOME TAX (A) HAS ERRED IN APPLYIN G THE DECISION IN THE CASE OF MCDOWELL AND CO. LTD. (SUP RA). IN THIS VIEW OF THE MATTER AND IN THE ABSENCE OF ANY DISTINGUISHING FEATURE OR CONTRARY DECISION PLACED ON RECORD BY THE REVENUE, WE RESPECTFULLY FOLLOWING THE DECIS ION OF THE ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 10 10 HONBLE JURISDICTIONAL HIGH COURT (SUPRA) HOLD THA T SINCE THE ASSESSEE HAS RESIGNED FROM M/S HYGENIC RESEARCH I NSTITUTE ON 31.12.2004, THE ASSESSEE IS ENTITLED TO THE EXE MPTION OF LEAVE ENCASHMENT UNDER SECTION 10(10AA)(II) AND GRA TUITY UNDER SECTION 10(10)(III) OF THE ACT. HOWEVER, IN THE ABSENCE OF ANY CALCULATION AND THE LIMIT AS PROVIDE D BY THE CENTRAL GOVERNMENT BY NOTIFICATION IN THE OFFICI AL GAZETTE AS MENTIONED IN THE RESPECTIVE SUB-SECTIONS, WE ARE OF THE VIEW THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE AO TO EXAMINE THE SAME AFRESH IN THE LIGHT OF OUR DIRECTI ONS GIVEN HEREINABOVE AND ACCORDING TO LAW AFTER PROVIDING R EASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GR OUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, PARTLY ALLOWE D FOR STATISTICAL PURPOSE. 11. GROUND NOS.2 AND 3 ARE AGAINST THE LEVY OF INTE REST UNDER SECTIONS 234A AND 234B. 12. AFTER HEARING THE RIVAL PARTIES AND PERUSING TH E MATERIAL AVAILABLE ON RECORD AND KEEPING IN VIEW THE SUBMISS IONS OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE CONSE QUENTIAL RELIEF BE ALLOWED TO THE ASSESSEE IN RESPECT OF LEV Y OF INTEREST UNDER SECTIONS 234A AND 234B, WE HOLD AND ORDER ACCORDINGLY. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE PARTLY ALLOWED. ITA NO.2046/MUM/2010 (ASSESSMENT YEAR: 2005-06) 11 11 13. IN THE RESULT, THE ASSESSEES APPEAL STANDS PA RTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH MAY , 2011 SD SD (R.K.PANDA) (D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEM BER MUMBAI, DATED 27TH MAY, 2011 SRL:24511 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILED. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI