VIDHYA, CHENNAI V. ITO, NCW - 9, CHENNAI

ITA 2222/CHNY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3313 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 31-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Share purchase agreement; Opportunity of being heard; Principle of natural justice; Wrong claim; Set aside; Capital Gains; Bogus
• Section: 12; 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , , $ BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER /. I.T.A. NO.2222/CHNY/2019 / ASSESSMENT YEAR : 2015-16 S MT. VIDHYA, NO. 704, B-BLOCK, 1088, POONAMALLEE HIGH ROAD, VEPERY, CHENNAI 600 007. [PAN: ACFPV 9837R] VS. THE INCOME TAX OFFICER , NON-CORPORATE WARD-9(5), CHENNAI. ( / APPELLANT) ( %&' /RESPONDENT ) '( / APPELLANT BY : SHRI. D. ANAND, ADVOCATE %&'( / RESPONDENT BY : SHRI. A R V SREENIVASAN, JCIT ( /DATE OF HEARING : 18.12.2019 ( /DATE OF PRONOUNCEMENT : 04.03.2020 / O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER : THE ASSESSEE FILED THIS APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-10, CHENNAI, IN ITA NO. 73/ 17-18/CIT(A)- 10 DATED 27.06.2019 FOR THE ASSESSMENT YEAR 2015-16 . :-2-: ITA NO.2222/CHNY/2019 2. SMT VIDHYA, THE ASSESSEE, AN INDIVIDUAL FILED H ER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2015-16 ON 29.09. 2015 ADMITTING A TOTAL INCOME OF RS. 3,04,810/-.DURING A SSESSMENT YEAR 2015-16, THE ASSESSEE CLAIMED EXEMPTION FROM THE SA LE OF SHARES OF M/S ESSAR INDIA LTD U/S. 10(38). DURING THE ASSESSMENT PROCEEDINGS, THE A O CONSIDERED THE ASSESSEES EXPL ANATION, MATERIAL ETC AND ALSO THE REPORT RECEIVED FROM THE INVESTIGATION CARRIED OUT BY THE INVESTIGATION WING, KOLKATTA WH ICH HAD REVEALED THAT LARGE SCALE MANIPULATION HAD BEEN/BEING DONE I N MARKET PRICE OF SHARES OF CERTAIN COMPANIES LISTED IN THE BOMBAY STOCK EXCHANGE BY A GROUP OF PERSONS ACTING AS A SYNDICAT E IN ORDER TO PROVIDE ENTRIES OF TAX EXEMPT LONG TERM CAPITAL GAI NS TO A LARGE NUMBER OF PERSONS (BENEFICIARIES) IN LIEU OF UNACCO UNTED CASH ETC .ACCORDING TO THE REPORT, THE SCRIP OF M/S. M/S ESSAR INDIA LTD IS A PENNY STOCK. BASED ON THEM , THE AO COMPLETED THE ASSESSMENT UNDER SECTION 143(3) TREATING THE ENTIRE SALE CONS IDERATION AS AN UNEXPLAINED CASH CREDIT AND ADDED IT TO THE RETURN ED INCOME. AGGRIEVED ON SUCH ORDER, THE ASSESSEE FILED AN APPE AL BEFORE THE CIT(A). THE LDCIT(A) DISMISSED THE ASSESSEES APPEA L. AGGRIEVED AGAINST THAT ORDER, THE ASSESSEE FILED THIS APPEAL . :-3-: ITA NO.2222/CHNY/2019 3. IT WAS SUBMITTED BY LD. A.R THAT THE ISSUE IN THIS APPEAL WAS AGAINST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION MADE BY LD. ASSESSING OFFICER IN TREATING THE PURCHASE A ND SALE OF SHARES BY THE ASSESSEE, AS PENNY STOCK TRANSACTIONS. ON TH E ISSUE U/S 10(38), THE LD. AR SUBMITTED ON THE LINES OF GRO UNDS OF APPEAL AND RELIED ON THE ORDER OF THIS TRIBUNAL IN THE CAS E OF MR SUNIL KUMAR LALWANI VS ITO & OTHERS, NON CORPORATE CIRCL E 9(4), CHENNAI IN ITA NO 659 & 660/ CHNY/2018 DT. 09.01.2 019. PER CONTRA, THE LD DR SUBMITTED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 10 (38) BUT SHE HAS NOT PROVED THE GE NUINENESS, THEREFORE, REITERATING THE FACTS AND CIRCUMSTANCES OF THIS CASE FROM THE ORDERS OF THE LOWER AUTHORITIES AND RELYING ON THIS TRIBUNAL DECISION IN THE CASE OF SHRI HEERACHAND KANUNGA, FO R ASSESSMENT YEARS 2010-11 & 2011-12 IN ITA NOS. 2786 & 2787/MDS /2017 DATED 03.05.2018, THE LD. DR PLEADED THAT THIS APPEAL BE DECIDED ACCORDINGLY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ON TH E ISSUE OF EXEMPTION CLAIM U/S 10(38), IT IS NOTICED THAT THE ASSESSEE HAS NOT BEEN GIVEN A FAIR OPPORTUNITY TO PROVE THE GENUINEN ESS BUT THE ASSESSMENT HAS BEEN MADE BASED, PRIMARILY, ON THE E VIDENCES :-4-: ITA NO.2222/CHNY/2019 COLLECTED BY THE REVENUE IN THE COURSE OF THE INVES TIGATION CONDUCTED BY THEM ON BROKERS / SHARE BROKING ENTITI ES ETC. THIS IS NOT PERMISSIBLE. THIS BEING SO, IN THE INTERESTS OF NATURAL JUSTICE, THE ISSUE OF THE GENUINENESS OF THE TRANSACTIONS REQU IRE RE- ADJUDICATION. SINCE, THE RIGHT TO EXEMPTION MUST BE ESTABLISHED BY THOSE WHO SEEK IT, THE ONUS THEREFORE LIES ON THE A SSESSEE. IN ORDER TO CLAIM THE EXEMPTION FROM PAYMENT OF INCOME TAX, THE ASSESSEE HAD TO PUT BEFORE THE INCOME TAX AUTHORITIES PROPER MATERIALS WHICH WOULD ENABLE THEM TO COME TO A CONCLUSION. (35 ITR 312 (SC)).THUS, THE AO MUST KEEP IN MIND THAT THE ONUS OF PROVING THE EXEMPTION RESTS ON THE ASSESSEE. IF THE AO DOES HAV E ANY EVIDENCE TO THE CONTRARY, IT IS TO BE PUT TO THE ASSESSEE FO R HIS REBUTTAL. THE INTERNAL COMMUNICATIONS OF THE REVENUE ARE EVIDENCE S FOR DRAWING AN OPINION ON POSSIBLE WRONG CLAIMS BUT THEY ARE NO T THE FINAL EVIDENCE. THE RELEVANT PORTION OF THE ORDER OF THIS TRIBUNAL IN THE CASE OF MR. SUNIL KUMAR LALWANIVS ITO & OTHERS, NO N CORPORATE CIRCLE 9(4), CHENNAI IN ITA NO 659 & 660/ CHNY/201 8 DT. 09.01.2019 IS EXTRACTED AS UNDER: 5. PER CONTRA, ID. A.R SUBMITTED THAT THE HON 'BLE DELHI HIGH COURT IN THE CASE OF PR.CIT VS. M/S.LAXMAN INDUSTRIAL RESOURCES LTD., IN ITA N'O.169/2017, C.M.APPL.7385/2017 VIDE ORDER DATED 14.03.2017 HAS HELD THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ID. A.R ALSO PLACED BEFORE US THE DECISION OF THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI ARAVINDNANDLAL. KHATRI VS. INCOME TAX OFFICER, IN ITA NO.2035/CHNY/2038 FOR ASSESSMENT YEAR 2011-12 :-5-: ITA NO.2222/CHNY/2019 VIDE ORDER DATED 03.12.2018 WHEREIN THE CO-ORDINATE BENCH OF THIS TRIBUNAL HAS HELD AS FOLLOWS:- '5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTED LY, THE A.O RECEIVED INFORMATION FROM INVESTIGATION WING OF THE DEPARTME NT AT KOLKATA WITH REGARD TO INVESTMENT OF THE ASSESSEE IN PENNY STOCK COMPANY, NAMELY, M/S. CONCRETE CREDIT LIMITED. THE ASSESSEE ALSO ADM ITTEDLY SOLD THE SAID SHARES AND CLAIMED EXEMPTION UNDER SECTION 10(38) O F THE ACT DURING THE YEAR WIDER CONSIDERATION. THEREFORE,, THE ASSESSING OFFICER HAS NOT DISPUTED THE SOURCE FOR INVESTMENT. THE ASSESSING O FFICER DISALLOWED THE CLAIM OF EXEMPTION ON THE GROUND THAT THE INVESTMEN T WAS IN A PENNY STOCK COMPANY. FROM THE MATERIAL AVAILABLE ON RECOR D IT APPEARS THAT A COPY OF INFORMATION SAID TO BE RECEIVED FROM THE IN VESTIGATION WING OF THE DEPARTMENT AT KOLKATA WAS NOT FURNISHED TO THE ASSE SSEE. IT IS NOT BROUGHT ON RECORD THE RELATIONSHIP OF THE ASSESSEE WITH THE PROMOTERS OF M/S CONCRETE CREDIT LIMITED. IT IS ALSO NOT BROUGHT ON RECORD THE ROLE OF THE ASSESSEE IN PROMOTING THE COMPANY, NAMELY, M/S CONC RETE CREDIT LIMITED, ISSUE OF PUBLIC SHARES, INFLATION OF PRICE OF SHARES, ETC. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER. A CCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE A.O SHALL BRING ON RECORD THE ROLE OF THE ASSESSEE IN PROMOTING THE CO MPANY AND RELATIONSHIP OF THE ASSESSEE WITH OTHER PROMOTERS, ROLE OF THE ASSESSEE IN INFLATING THE PRICE OF SHARES, ETC.. THE ASSESSING OFFICER SHALL ALSO FURNISH A COPY OF THE REPORT SAID TO BE RECEIVED FROM THE I NVESTIGATION WING OF THE DEPARTMENT AT KOLKATA TO THE ASSESSEE AND THEREAFTE R DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASO NABLE OPPORTUNITY TO THE ASSESSEE.' 5. FURTHER, PERUSAL OF ASSESSEES CASE SHOWS THAT IT IS SIMILAR TO THE FACTS IN THE CASE OF SHRI HEERACHAN D KANUNGA, A DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL MADE FOR ASSESSMENT YEARS 2010-11 & 2011-12 IN ITA NOS. 2786 & 2787/MDS/2017 DATED 03.05.2018 . THE RELEVANT PORTI ONS FROM THAT ORDER IS EXTRACTED AS UNDER :- :-6-: ITA NO.2222/CHNY/2019 9. A PERUSAL OF THE FACTS IN THE PRESENT CASE ADMI TTEDLY GIVEN ROOM FOR SUSPICION. HOWEVER, ASSESSMENTS ARE NOT T O BE DONE ON THE BASIS OF MERE SUSPICION. IT HAS TO BE SUPPORTED BY FACTS AND THE FACTS ARE UNFORTUNATELY NOT FORTHCOMING IN THE ASSE SSMENT ORDER, IN THE ORDER OF THE LD.CIT(A) NOR FROM THE SIDE OF THE ASSESSEE. THE MAIN FOUNDATION OF THE ASSESSMENT IN THE PRESENT CA SE IS THE STATEMENT OF ONE SHRI ASHOK KUMAR KAYAN WHO HAS ADM ITTED TO HAVE PROVIDED BOGUS LONG TERM CAPITAL GAINS TO HIS CLIENTS. THE SAID SHRI ASHOK KUMAR KAYAN ALSO ALLEGEDLY SEEMS TO HAVE PROVIDED THE ASSESSEES NAME AND PAN AS ONE OF THE BENEFICIARIES. HOWEVER, THIS STATEMENT GIVEN BY SH RI ASHOK KUMAR KAYAN CANNOT BE THE FOUNDATION FOR THE PURPOSE OF A SSESSMENT IN SO FAR AS SHRI ASHOK KUMAR KAYAN HAS NOT BEEN PROVI DED TO THE ASSESSEE FOR CROSS-EXAMINATION. IN THE ABSENCE OF OPPORTUNITY OF CROSS-EXAMINATION, THE STATEMENT REMAINS MERE INFOR MATION AND SUCH INFORMATION CANNOT BE FOUNDATION FOR ASSESSMEN T. 10. ADMITTEDLY, THE ASSESSEE HAS CLAIMED TO HAVE PU RCHASED 15000 SHARES FROM M/S.BPL @ RS.20/- PER SHARE TOTAL ING INTO RS.3,00,000/-. THE ASSESSEE CLAIMS TO HAVE PAID CAS H FOR THE PURCHASE OF THESE SHARES. THE PRIMARY QUESTION WOU LD BE AS TO WHERE THE PURCHASE WAS DONE? IF THE PURCHASE HAS BE EN DONE IN KOLKATA, HOW WAS THE CASH TRANSFERRED? WHEN DID THE ASSESSEE RECEIVED THE SHARE CERTIFICATES AND THE SHARE TRANS FER FORMS? HOW DID THE ASSESSEE OVERCOME THE PROVISIONS OF SEC.40A (3)? WAS THERE ADEQUATE CASH AVAILABILITY IN THE BOOKS OF TH E ASSESSEE ON 24.04.2008? DID THE ASSESSEE TRAVELLED TO KOLKATA? HOW WAS THE TRANSACTION DONE? WHO APPLIED FOR THE DEMATING OF THE SHARES? WHEN WERE THEY DEMATED? WHEN WERE THE SHARES TRANS FERRED TO THE DEMAT ACCOUNT OF THE ASSESSEE? TO WHOM WERE THE SHARES SOLD DURING THE ASSESSMENT YEARS 2010-11 & 2011-12? WHEN WERE THE CHEQUES RECEIVED BY THE ASSESSEE? FROM WH OM DID THE ASSESSEE RECEIVED THE CHEQUES? WAS THERE ANY CASH D EPOSIT IMMEDIATELY PRIOR TO THE ISSUING OF THE CHEQUE FROM THE BANK ACCOUNT OF THE PURCHASER OF THE SHARES OF THE ASSES SEE? 11. A PERUSAL OF THE ASSESSMENT ORDER AT PARA NO.7. 1 SHOWS THAT IN THE WRITTEN SUBMISSIONS, THE ASSESSEE STATE S THAT HE HAS PURCHASED 15000 SHARES OF M/S.BPL FROM M/S.ABPL, KO LKATA. HOWEVER, IN PARA NO.8.3, IT IS MENTIONED THAT THE A SSESSEE IN GOOD FAITH HAS PURCHASED THE SHARES OF M/S.BPL FROM A SU B-BROKER IN HIS FRIENDS CIRCLE. WHAT IS THE TRUE NATURE OF THE TRA NSACTION? FROM WHOM DID THE ASSESSEE ACTUALLY PURCHASE THE SHARES? DID THE ASSESSEE TAKE POSSESSION OF THE SHARES IN ITS PHYSI CAL FORM? IN PARA NO.8.1 OF THE ASSESSMENT ORDER, IT IS MENTIONE D THAT THE ASSESSEE IS AN INVESTOR AND HAS BEEN REGULARLY TRAD ING IN SHARES. IF THIS IS SO, DOES THE DEMAT ACCOUNT SHOW SUCH TRA NSACTIONS BEING :-7-: ITA NO.2222/CHNY/2019 DONE BY THE ASSESSEE OR IS THIS THE ONLY ONE OF TRA NSACTION. THUS, CLEARLY THE FACTS REQUIRED FOR ADJUDICATING THE APP EALS ARE NOT FORTHCOMING. THERE IS NO EVIDENCE WHATSOEVER TO SH OW THAT THE ASSESSEE HAS HELD THE SHARES FOR MORE THAN 12 MONTH S. THIS IS BECAUSE ASSUMING THAT THE DEMAT HAS BEEN DONE AND T HE SHARES OF M/S.BPL HAS COME INTO THE ASSESSEESDEMAT ACCOUN T AND HAS IMMEDIATELY FLOWN OUT. THEN THE FACTUM OF THE POSS ESSION OF THE SHARES FOR MORE THAN 12 MONTHS HAVE TO BE PROVED BY THE ASSESSEE. THIS IS ALSO NOT FORTHCOMING. IN REPLY TO A SPECIFIC QUERY, AS THE DATE OF THE DEMAT OF SHARES, IT WAS S UBMITTED BY THE LD.AR THAT THE DEMAT WAS DONE ON VARIOUS DATES. TH EN THE QUESTION RISES AS TO WHY THERE IS SO MUCH OF DIFFER ENCE IN THE DATES OF DEMATING WHEN 15000 SHARES HAVE BEEN PURCHASED T OGETHER ON 24.04.2008. NO DETAILS IN RESPECT OF M/S.BPL COMPA NY IS KNOWN, WHAT IS THE PRODUCT OF THE COMPANY WHICH HAD LEAD T O THE SHARE VALUE OF THE COMPANY TO GO UP FROM RS.20/- TO RS.35 2/- IN A PERIOD OF TWO YEARS. THIS WOULD CLEARLY BE A CASE WHERE TH E SHARE VALUE OF THE COMPANY WAS HITTING THE CIRCUIT BREAKER OF T HE STOCK EXCHANGE ON A DAILY BASIS AND OBVIOUSLY IT WOULD HA VE DRAWN ATTENTION. THIS BEING SO, AS THE FACTS ARE NOT COM ING OUT OF THE ASSESSMENT ORDER NOR THE ORDER OF THE LD.CIT(A) NOR FROM THE SIDE OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE ISSUES IN THIS APPEAL MUST BE RESTORED TO THE FILE OF THE AO FOR RE-ADJUD ICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBST ANTIATE ITS CASE AND WE DO SO. 12. THE STATEMENT RECORDED BY THE REVENUE FROM SHRI ASHOK KUMAR KAYAN CANNOT BE USED AS AN EVIDENCE AGAINST T HE ASSESSEE IN SO FAR AS THE STATEMENT HAS NOT BEEN GI VEN TO THE ASSESSEE NOR HAS SHRI ASHOK KUMAR KAYAN BEEN PROVID ED TO THE ASSESSEE FOR CROSS-EXAMINATION. HOWEVER, THE ASSES SEE SHALL PROVE THE TRANSACTION OF THE LONG TERM CAPITAL GAIN S IN RESPECT OF WHICH THE ASSESSEE HAS CLAIMED THE EXEMPTION U/S.10 (38) BY PROVIDING ALL SUCH EVIDENCES AS REQUIRED BY THE AO TO SUBSTANTIATE THE CLAIM AS ALSO BY PRODUCING THE PERSONS THROUGH WHOM THE ASSESSEE HAS UNDERTAKEN THE TRANSACTION OF THE PURC HASE AND SALE OF THE SHARES WHICH WOULD INCLUDE THE SUB-BROKER, F RIEND AND THE BROKER THROUGH WHOM THE TRANSACTION HAS BEEN DONE, BEFORE THE AO FOR EXAMINATION. 13. IN THE RESULT, THE APPEALS FILED BY THE ASSESS EE IN ITA NOS.2786 & 2787/CHNY/2017 ARE PARTLY ALLOWED FOR ST ATISTICAL PURPOSES. :-8-: ITA NO.2222/CHNY/2019 6. RESPECTFULLY FOLLOWING THE ABOVE ORDERS, ON THE FACTS AND CIRCUMSTANCES OF THIS CASE, WE DEEM IT FIT TO REM IT THE ISSUES OF EXEMPTION CLAIM IN THIS APPEAL BACK TO THE FILE OF THE A.O. FOR RE- ADJUDICATION ON THE LINES INDICATED ABOVE. THEREFOR E, THE A O SHALL REQUIRE THE ASSESSEE; TO ESTABLISH WHO, WITH WHOM , HOW AND IN WHAT CIRCUMSTANCES THE IMPUGNED TRANSACTIONS WERE C ARRIED OUT ETC., TO PROVE THAT THE IMPUGNED TRANSACTIONS ARE A CTUAL, GENUINE ETC. THE ASSESSEE SHALL COMPLY WITH THE A.OS REQ UIREMENTS AS PER LAW. THE ASSESSING OFFICER SHALL ALSO BRING ON RE CORD THE ROLE OF THE ASSESSEE IN PROMOTING THE COMPANY AND RELATIONSHIP OF THE ASSESSEE WITH OTHER PROMOTERS, ROLE OF THE ASSESSEE IN INFLATING THE PRICE OF SHARES, ETC. AS HAD BEEN HELD BY THE CO-OR DINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI ARAVIND NANDIAL K HATRI VS. I.T.O REFERRED TO SUPRA. THE ASSESSING OFFICER SHALL KEEP IN MIND THE DIRECTIONS OF THE HON'BLE DELHI HIGH COURT IN THE C ASE OF PR. CIT VS M/S. LAXMAN INDUSTRIAL RESOURCES LTD., REFERRED TO SUPRA WHEN RE- ADJUDICATING THE ISSUE. ON APPRECIATION OF ALL THE ABOVE ASPECTS, THE AO WOULD DECIDE THE MATTER IN ACCORDANCE WITH LAW. THE A O IS ALSO FREE TO CONDUCT APPROPRIATE ENQUIRY AS DEEMED FIT, BUT SHALL FURNISH ADEQUATE OPPORTUNITY TO THE ASSESSEE ON THE MATERIAL ETC. TO BE USED AGAINST IT AND DECIDE THE MATTER IN ACCO RDANCE WITH LAW. :-9-: ITA NO.2222/CHNY/2019 THUS, THE ISSUES OF EXEMPTION CLAIM U/S 10(38) ARE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE ASSESSEES APPEAL IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON WEDNESDAY, 04 TH MARCH, 2020 AT CHENNAI. SD/- ( ) (GEORGE MATHAN) ! /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) ! /ACCOUNTANT MEMBER /CHENNAI, 0 /DATED: 04 TH MARCH, 2020 JPV (%2343 /COPY TO: 1. ' / APPELLANT 2. %&' /RESPONDENT 3. 5 ) ( /CIT(A) 4. 5 /CIT 5. 3% /DR 6. /GF