Amrit Corp. Ltd., Ghaziabad V. Addl. CIT, Ghaziabad

ITA 2159/DEL/2012

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4175 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 07-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R C DANDY
• Assessee Lawyers: ROHIT JAIN; TEJASVI JAIN
• Keywords: Capital asset; Fair market value; Valuation report; Reassessment proceedings
• Section: 45(2)

Judgement Text

1 ITA NO. 2159/DEL/2013 & ORS IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEM BER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER ITA NO. 2159/DEL/201 2 ( A.Y 2009-10) AMRIT CORP. LTD. AMRIT NAGAR G. T. ROAD GHAZIABAD AAFCA7387Q (APPELLANT) VS ADDL. CIT RANGE-2 GHAZIABAD (RESPONDENT) ITA NO. 5027/DEL/201 3 ( A.Y 2009-10) ITA NO. 5028/DEL/201 3 ( A.Y 2007-08) ITA NO. 5026/DEL/201 3 ( A.Y 2008-09) DCIT CENTRAL CIRCLE GHAZIABAD (APPELLANT) VS AMRIT CORP. LTD. FORMERLY KNOWN AS AMRIT BANSAPATI CO. LTD. A-95 SECTOR-65, NOIDA AAFCA7387Q (RESPONDENT) APPELLANT BY SH. ROHIT JAIN, ADV & MS. TEJASVI JAIN, CA RESPONDENT BY SH. R. C. DANDY, SR. DR ORDER PER SUCHITRA KAMBLE JM THESE ARE FOUR APPEALS FILED BY THE REVENUE AND ASS ESSEE FOR VARIOUS ASSESSMENT YEARS. DATE OF HEARING 27.09.2017 DATE OF PRONOUNCEMENT 04.10.2017 2 ITA NO. 2159/DEL/2013 & ORS 2. ITA NO. 2159/DEL/2012 (A.Y. 2009-10) WAS FILED B Y THE ASSESSEE AGAINST THE ORDER DATED 30.04.2012 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), GHAZIABAD WHE REIN THE ASSESSEE IS CHALLENGING THE ACTION OF THE ASSESSING OFFICER IN HOLDING THAT THE ASSESSEE HAD CONVERTED THE IMPUGNED INDUST RIAL LAND INTO STOCK-IN-TRADE DURING FINANCIAL YEAR 2002-03 THEREB Y ATTRACTING THE PROVISIONS OF SECTION 45(2) OF THE ACT IN THAT YEAR AS AGAINST THE ASSESSEES CLAIM THAT CONVERSION TOOK PLACE IN THE FINANCIAL YEAR 2006-07. THE ASSESSEE IS ALSO CHALLENGING THE ACTIO N OF THE CIT(A) IN DIRECTING THE ASSESSING OFFICER TO ADOPT FAIR MARKE T VALUE AS ON 1.4.1981 AT RS.100/- SQ. YARD AS AGAINST RS.190/- P ER SQ. YARD ADOPTED BY THE ASSESSEE FOR THE PURPOSE OF COMPUTAT ION OF CAPITAL GAINS. 3. THE LD. AR SUBMITTED THAT THESE ISSUES ARE DECID ED IN FAVOUR OF THE ASSESSEE VIDE ORDER DATED 06.06.2017 PASSED BY ITAT, NEW DELHI IN ASSESSEES OWN CASE BEING ITA NOS. 1789 & 2163/DEL/2011 FOR A.Y. 2007-08 AND ITA NOS. 4579 & 5337/DEL/2011 FOR A.Y. 2008-09. 4. THE LD. DR RELIED UPON THE LOWER AUTHORITIES ORD ERS. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. THE ITAT FOR A.Y. 2007-08 & 2008-09 HELD AS UNDER:- 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PE RUSED THE RELEVANT MATERIAL ON RECORD. THE FIRST ISSUE THAT ARISES FO R CONSIDERATION IS WHETHER THE INDUSTRIAL LAND HELD BY THE ASSESSEE WAS CONVERTED INTO STOCK-IN-TRADE ON 1 ST APRIL 2002 (AS HELD BY THE ASSESSING OFFICER) OR ON 1 ST APRIL 2006 (AS 3 ITA NO. 2159/DEL/2013 & ORS CONTENDED BY THE ASSESSEE). IN THIS REGARD, THE FO LLOWING FACTS REMAIN UNDISPUTED:- 1. THE ASSESSEE WAS HOLDING INDUSTRIAL LAND SINCE THE YEAR 1940-41 AND IT HOUSED GHAZIABAD VANASPATI UNIT OF THE ASSESSEE. T HUS, THE LAND WAS INITIALLY NOT ACQUIRED FOR SALE BUT WAS HELD AS A C APITAL ASSET. 2. THE SALE OF INDUSTRIAL LAND WAS PART OF THE REHABIL ITATION SCHEME FRAMED BY THE BIFR AND THE SALE CONSIDERATION WAS TO BE USED TO FUND THE COST OF REHABILITATION SCHEME AND REPAYMENT OF LOAN. 3. EVEN FOR YEAR ENDING 31.03.2004, 2005 AND 2006, THE LAND SOLD BY THE ASSESSEE WAS BEING SHOWN UNDER CAPITAL ASSETS IN TH E SCHEDULE OF FIXED ASSETS. 4. THE WEALTH TAX RETURNS FILED BY THE ASSESSEE FOR AS SESSMENT YEARS 2003- 04 TO 2006-07 SHOW THAT THE LAND AT GHAZIABAD WAS S HOWN AS A TAXABLE ASSET AND WEALTH TAX WAS PAID THEREON. 5. THE OBJECT CLAUSE OF THE MEMORANDUM OF ASSOCIATION WAS AMENDED IN SEPTEMBER, 2005 TO INCLUDE REAL ESTATE AS ONE OF TH E MAIN OBJECTS. 6. IN AUDITED FINANCIAL STATEMENT 2007-08, THE ASSESSE E, FOR THE FIRST TIME, SHOWED THE FINANCIAL RESULTS SEPARATELY FOR REAL ES TATE. 5.1 THESE ABOVE FACTS DEMONSTRATE THAT THE INDUST RIAL LAND WAS HELD AS CAPITAL ASSET TILL ASSESSMENT YEAR 2006-07 AND T HE INDUSTRIAL LAND WAS CONVERTED INTO STOCK-IN-TRADE IN THE FINANCIAL YEAR 2006-07 AND NOT 2002-03 AS HELD BY THE ASSESSING OFFICER. FURTHER, THE HON BLE ALLAHABAD HIGH COURT IN ASSESSEES OWN CASE IN TAX WRIT NOS. 47 TO 50 OF 2010 IN THE CASE OF AMRIT CORPORATION LTD. VS ACIT REPORTED IN 275 CTR 174 (A LL) HAS ALSO HELD IN ASSESSEES FAVOUR BY IMPLIEDLY HOLDING THAT THE TRA NSFER FOR THE PURPOSE OF CAPITAL GAINS DID NOT TAKE PLACE IN THE YEAR 2002-0 3. ALTHOUGH THIS JUDGMENT OF THE HONBLE ALLAHABAD HIGH COURT WAS RENDERED IN RESPECT OF VALIDITY OF REASSESSMENT PROCEEDINGS, THE HONBLE HIGH COURT DI D HOLD IN PARA 33 AND 34 OF THE ORDER AS UNDER:- 33. SECTION 45(2), AS REFERRED HEREINABOVE, PROVIDE S THE PROFIT OR GAIN ARISING FROM THE TRANSFER BY WAY OF CONVERSION BY T HE OWNER OF THE CAPITAL ASSET INTO, OR ITS TREATMENT BY HIM AS, STOCK-IN- T RADE OF A BUSINESS CARRIED ON BY HIM SHALL BE CHARGEABLE TO INCOME TAX AS HIS INCOME OF THE PREVIOUS YEAR IN WHICH SUCH STOCK- IN- TRADE IS SOLD OR OTHE RWISE TRANSFERRED BY HIM AND, FOR THE PURPOSES OF SECTION 48, THE FAIR MARKE T VALUE OF THE ASSET ON THE DATE OF SUCH CONVERSION OR TREATMENT SHALL BE D EEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF 4 ITA NO. 2159/DEL/2013 & ORS THE CAPITAL ASSET. 34. SECTION 45(2) IS APPLICABLE IN A SITUATION WHE RE THERE IS A TRANSFER BY WAY OF CONVERSION BY THE OWNER OF A CAPITAL ASSET I NTO STOCK-IN-TRADE OF A BUSINESS OR OWNER HAS TREATED SUCH CAPITAL ASSET AS STOCK-N-TRADE OF A BUSINESS. TO MAKE THE PROVISION APPLICATION, THERE MUST BE A POSITIVE ACT ON THE PART OF THE OWNER OF THE CAPITAL ASSET TO TR ANSFER THE ASSET BY WAY OF CONVERSION INTO STOCK-IN-TRADE OR TREATING SUCH CAP ITAL ASSET AS STOCK-IN- TRADE OF A BUSINESS. IN THE ABSENCE OF SUCH A POSIT IVE ACT ON THE PART OF THE OWNER OF THE CAPITAL ASSET, THE PROVISION OF SECTIO N 45(2) DOES NOT APPLY. IN THE PRESENT CASE, IT IS NOT THE CASE OF THE REVENUE THAT THE OWNER HAS TRANSFERRED, BY WAY OF CONVERSION OF THE CAPITAL AS SET, CONVERTED THE CAPITAL ASSET INTO STOCK-IN-TRADE OR HAS TREATED SUCH CAPIT AL ASSET AS STOCK-IN-TRADE OF A BUSINESS. THERE IS NO SUCH MATERIAL IN THIS RE GARD ON RECORD. THE ASSESSING AUTHORITY, WHILE INITIATING THE PROCEEDIN G, UNDER SECTION 148, READ WITH SECTION 147, HAS INFERRED SUCH CONVERSION OF CAPITAL ASSET INTO THE STOCK-IN-TRADE AND APPLIED THE PROVISION OF SEC TION 45 (2), WHICH IS WHOLLY ERRONEOUS. 5.2 THIS ADJUDICATION BY THE HONBLE HIGH COURT GOE S IN FAVOUR OF THE ASSESSEE THAT THERE WAS NO CONVERSION OF THE CAPITA L ASSET TO STOCK-IN-TRADE IN FINANCIAL YEAR 2002-03 AS HAS BEEN CONTENDED BY THE DEPARTMENT AND THAT THE PROVISIONS OF SECTION 45(2) WILL APPLY ONLY IN A SITUATION WHERE THERE IS A TRANSFER BY WAY OF CONVERSION BY THE OWNER OF THE C APITAL ASSET INTO STOCK-IN- TRADE BY A POSITIVE ACT ON THE PART OF THE OWNER OF THE CAPITAL ASSET AND THAT IN ABSENCE OF SUCH A POSITIVE ACT ON THE PART OF THE O WNER OF THE CAPITAL ASSET, THE PROVISIONS OF SECTION 45(2) WILL NOT APPLY. TH E HONBLE HIGH COURT ALSO CONCLUDED THAT IN THE PRESENT CASE, IT WAS NOT THE CASE OF THE ASSESSEE THAT THE OWNER HAD TRANSFERRED, BY WAY OF CONVERSION OF THE CAPITAL ASSET, CONVERTED THE CAPITAL ASSET INTO STOCK-IN-TRADE OR HAD TREATED SUCH CAPITAL ASSET AS STOCK-IN-TRADE OF THE BUSINESS. THUS, THE HONBLE HIGH COURT HAS ADJUDICATED THAT THE LAND WAS A LONG TERM CAPITAL A SSET IN THE HANDS OF THE ASSESSEE DURING THE FINANCIAL YEARS 2002-03 TO 2005 -06 AND THAT THERE WAS NO CONVERSION OF CAPITAL ASSET INTO STOCK-IN-TRADE UNDER THE PROVISIONS OF SECTION 45(2) OF THE ACT DURING SUCH PERIOD AS CONT EMPLATED BY THE REVENUE. 5.4 THEREFORE, ON COUNT ALSO, THERE CAN BE NO QUEST ION OF THE VERY SAME LAND BEING TREATED AS HAVING BEEN CONVERTED INTO ST OCK-IN-TRADE IN FINANCIAL YEAR 2002-03, AS CONTENDED BY THE DEPARTMENT, FOR T HE PURPOSE OF COMPUTATION OF CAPITAL GAINS DURING THE YEAR UNDER CONSIDERATION. 5 ITA NO. 2159/DEL/2013 & ORS 5.5 FURTHER, THE HONBLE COURT HAS ALSO RECOGNIZED THE FACT THAT IN ORDER TO ATTRACT PROVISIONS OF SECTION 45(2) OF THE ACT, THERE MUST BE SOME POSITIVE ACT ON THE PART OF THE OWNER OF THE CAPITAL ASSET TO TR ANSFER THE ASSET BY WAY OF CONVERSION INTO STOCK-IN-TRADE OR TREATING SUCH CAP ITAL ASSET AS STOCK-IN-TRADE OF THE BUSINESS. IT IS AMPLY CLEAR THAT IN ABSENCE OF A POSITIVE ACT ON THE PART OF THE OWNER OF THE CAPITAL ASSET, THE PROVISIONS O F SECTION 45(2) WILL NOT APPLY. 5.6 IT IS UNDISPUTED THAT THERE WAS NO ACT ON THE P ART OF THE ASSESSEE TO CONVERT SUCH LAND INTO STOCK-IN-TRADE DURING THE FI NANCIAL YEARS 2002-03 TO 2005-06 AND THE LAND WAS SHOWN AS CAPITAL ASSET SIN CE THE BEGINNING IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. IT WAS ONLY IN FINANCIAL YEAR 2000-01 THAT THE ASSESSEE HAD SOUGHT PERMISSION FOR CONVERTING T HE SAID LAND FROM INDUSTRIAL TO RESIDENTIAL BUT THIS DOES NOT IMPLY T HAT THE ASSESSEE HAD CONVERTED THE LAND INTO STOCK-IN-TRADE DURING THE F INANCIAL YEAR 2000-01. WE FIND MERIT IN THE CONTENTION OF THE ASSESSEE THAT T HE LAND WAS CONVERTED FROM CAPITAL ASSET TO STOCK-IN-TRADE ONLY DURING THE YEA R UNDER CONSIDERATION I.E. FY 2006-07 AND NOT ANY TIME BEFORE THAT, BECAUSE THE L ANGUAGE OF SECTION 45(2) OF THE ACT PROVIDES THAT CAPITAL ASSET HELD BY THE OWNER IS CONVERTED BY HIM INTO STOCK-IN-TRADE OR CAPITAL ASSET IS TREATED AS STOCK-IN-TRADE BY THE OWNER AND IN BOTH THE SITUATIONS, THE EMPHASIS IS ON THE TREATMENT GIVEN BY THE OWNER OF THE CAPITAL ASSET. THUS, TILL THE TIME TH E OWNER HIMSELF EITHER CONVERTS THE CAPITAL ASSET INTO STOCK-IN-TRADE, THE PROVISIONS OF SECTION 45(2) OF THE ACT WILL NOT BE ATTRACTED. THUS, WHAT IS PROVI DED IS THAT ONLY POSITIVE ACT/CONDUCT OF THE OWNER ASSESSEE IN APPLYING/TREAT ING A CAPITAL ASSET INTO STOCK-IN-TRADE IS RELEVANT TO DETERMINE THE APPLICA BILITY OF SECTION 45(2) OF THE ACT AND NOTHING ELSE AND THIS ASPECT HAS BEEN APPRO VED BY THE HONBLE HIGH COURT IN THE ASSESSEES CASE REFERRED TO ABOVE. 5.6 WE ALSO AGREE WITH THE ASSESSEES CONTENTION TH AT SINCE THE ASSESSEE HAD APPLIED FOR OBTAINING PERMISSION FROM THE GHAZIABAD DEVELOPMENT AUTHORITY (GDA), GHAZIABAD FOR CONVERSI ON OF INDUSTRIAL LAND INTO RESIDENTIAL LAND DURING FINANCIAL YEAR 2002-03, THE LAND CANNOT BE TREATED AS CONVERTED IN THE FINANCIAL YEAR 2002-03 AS IN TERMS OF SECTION 45(2) OF THE ACT, THE CONVERSION TAKES PLACE ONLY BY THE VOLUNTARY AC T OF THE ASSESSEE FOR SUCH CONVERSION AND A MERE ACT OF SEEKING PERMISSION FOR CONVERSION OF LAND USE WILL NOT COME WITHIN THE DEFINITION OF TRANSFER. 5.7 THEREFORE, ON AN OVERALL CONSIDERATION OF THE F ACTS, WE HOLD THAT THE INDUSTRIAL LAND WAS HELD AS CAPITAL ASSET TILL ASSE SSMENT YEAR 2007-08 AND THE SAME WAS CONVERTED INTO STOCK-IN-TRADE ONLY IN THE FINANCIAL YEAR 2006-07 6 ITA NO. 2159/DEL/2013 & ORS AND NOT IN ASSESSMENT YEAR 2003-04 AS CONTENDED BY THE DEPARTMENT. ACCORDINGLY, GROUND NOS. 1, 1.1 AND 1.2 IN ASSESSEE S APPEAL FOR ASSESSMENT YEAR 2007-08 AND GROUND NOS. 1, 1.1 AND 1.2 FOR ASS ESSMENT YEAR 2008-09 STAND ALLOWED. 5.8 THE SECOND ISSUE ARISING FOR OUR CONSIDERATION IS THE DETERMINATION OF FAIR MARKET VALUE OF THE LAND ON 1 ST APRIL, 1981. THE ASSESSEE HAD CLAIMED FAIR MARKET VALUE AT RS. 190/- PER SQ YARD. THE AS SESSEE HAD RELIED ON THE VALUATION REPORT OF A REGISTERED VALUER IN ARRIVING AT THE FAIR MARKET VALUE. HOWEVER, THE ASSESSING OFFICER HAD REJECTED THE VAL UATION REPORT AND HAD ADOPTED THE FAIR MARKET VALUE OF LAND AT RS. 20/- P ER SQ YARD AS INTIMATED BY UPSIDC FILED IN PURSUANCE OF NOTICE U/S SECTION 133 (6) OF THE ACT. ON APPEAL, THE LD. CIT (A) DETERMINED THE FAIR MARKET VALUE AT RS. 100/- PER SQ YD ACCORDING TO THE EXISTING CIRCLE RATE AND NOW DEPAR TMENT IS CONTESTING THE VALUATION AT RS. 100/- PER SQ. YARD IN PLACE OF RS. 20/- PER SQ. YARD WHEREAS THE ASSESSEE IS CHALLENGING THE VALUATION OF FAIR M ARKET VALUE AT RS. 100/- PER SQ YD INSTEAD OF RS. 190/- AS CLAIMED BY THE AS SESSEE. 5.9 IT IS SEEN THAT THE ASSESSEE WANTED TO ADOPT TH E FAIR MARKET VALUE @RS. 190/- PER SQ YD BASED ON THE FACT THAT OUT OF THE TOTAL LAND MEASURING 77,638 SQ YARDS, THE SALEABLE LAND AREA WAS ONLY 46 ,232 SQ YARDS IN TERMS OF CLAUSE (IV) OF THE AGREEMENT MADE BETWEEN THE AS SESSEE AND THE GDA VIDE AGREEMENT DATED 3 RD AUGUST 2002 WHEREIN CERTAIN AREA WAS TO BE TRANSFE RRED FROM THE ASSESSEE TO THE GDA FREE OF COST. THE REL EVANT CLAUSE (IV) READS AS UNDER:- THAT THE FIRST PARTY SHALL TRANSFER OWNERSHIP OF P ARKS, ROADS, PAVEMENTS, DRAINS, WATER SUPPLY SYSTEM AND PUBLIC UTILITY SERV ICES, IF ANY, AND THE LAND UNDERNEATH WITHOUT CONSIDERATION OF MONEY IN FAVOUR OF THE AUTHORITY OR AS DIRECTED BY THE PARTY. 5.10 IT IS THE ASSESSEES CONTENTION THAT SINCE THE SALEABLE AREA OF LAND WAS LESS, THE FAIR MARKET VALUE OF THE SALEABLE POR TION HAD TO BE APPROPRIATELY INCREASED SO AS TO DETERMINE THE TRUE FAIR MARKET VALUE FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS. THE ASSES SEES CLAIM IS DULY SUPPORTED BY THE REPORT OF THE REGISTERED VALUER. HOWEVER, THE DEPARTMENT DID NOT ACCEPT THE ASSESSEES COMPUTATION OF FAIR M ARKET VALUE AT AN INCREASED VALUE SO AS TO FACTOR THE DECREASE IN THE SALEABLE AREA. THE ASSESSING OFFICER ADOPTED VALUE OF RS. 20/- PER SQ YD WHICH THE LD. CIT (A) HIMSELF HAS REJECTED ON THE GROUND THAT THE VALUE O F RS. 20/- PER SQ YD AS INTIMATED BY THE UPSIDC WAS NOT APPLICABLE TO THE A SSESSEES CASE AS THE 7 ITA NO. 2159/DEL/2013 & ORS ASSESSEES LAND DID NOT FALL UNDER THE UPSIDC AREA. WE FIND NO REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT (A) IN T HIS REGARD AS THIS FINDING IS DULY SUPPORTED BY LETTER FROM THE UPSIDC DATED 17.1 2.2009 ADDRESSED TO THE ACIT, GHAZIABAD WHICH MENTIONS THAT THE ASSESSEES LAND DID NOT COME UNDER THE JURISDICTION OF THE UPSIDC. THUS, THE SOL E GROUND IN DEPARTMENTS APPEALS IN BOTH THE YEARS STANDS DISMISSED. THUS, THE ISSUES CONTESTED IN THIS APPEAL ARE IDENT ICAL AND ARE ALREADY DECIDED BY THE ITAT IN FAVOUR OF THE ASSESS EE. THEREFORE ITA NO. 2159/DEL/2012 FOR A.Y. 2009-10 IS ALLOWED. 6. IN RESULT, ITA NO. 2159/DEL/2012 APPEAL FILED BY THE ASSESSEE IS ALLOWED. 7. NOW WE TAKE UP THE OTHER THREE APPEALS BEING IT A NOS. 5026, 5027& 5028/DEL/2013 FOR A.Y. 2008-09, 2009-10 AND 2 007-08 RESPECTIVELY. THESE APPEALS ARE FILED BY THE REVENU E AGAINST THE ORDERS DATED 12.06.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), GHAZIABAD. 8. THE ISSUE IN THESE APPEALS ARE RELATED TO DELETI ON OF PENALTY U/S 271(1)(C) OF THE INCOME-TAX ACT, 1961. 9. THE LD. AR SUBMITTED THAT THE QUANTUM APPEAL FOR THE ASSESSMENT YEAR 2007-08 OF THE ASSESSEE HAS BEEN DE CIDED IN FAVOUR OF THE ASSESSEE BY ITAT ORDER DATED 6 TH JUNE, 2017. THEREFORE, THE PENALTY DOES NOT SUSTAIN. IN LIGHT O F THIS, THE LD. AR REQUESTED THAT THE APPEALS OF THE REVENUE BE DISMIS SED. 8 ITA NO. 2159/DEL/2013 & ORS 10. THE LD. DR COULD NOT CONTROVERT THE ORDER OF TH E ITAT IN QUANTUM APPEAL. THE LD. DR RELIED UPON THE PENALTY ORDER PASSED BY THE ASSESSING OFFICER. 11. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ITAT VIDE ORDER DATED 6 TH JUNE 2017 HAS CATEGORICALLY GIVEN A DETAILED FINDING FOR ASSESSME NT YEAR 2007-08 AND 2008-09. ALL THE ISSUES ARE ALLOWED. THE PENA LTY IS LEVIED ON THE ISSUES WHICH WERE ALLOWED BY THE ITAT. THEREFO RE, NOTHING SURVIVES IN THE PENALTY APPEALS BEFORE US. THEREFO RE, THE PRESENT APPEALS ARE DISMISSED. 12. IN RESULT, ITA NOS. 5026, 5027 AND 5028/DEL/201 3 FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04TH OCTOBE R, 2017 . SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 04/10/2017 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 9 ITA NO. 2159/DEL/2013 & ORS ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 28/09/2017 PS 2. DRAFT PLACED BEFORE AUTHOR 29/09/2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 4.10.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 4 .10.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.