ITO 2(2)(2), MUMBAI V. JDP SHARES & FINANCE P. LTD, MUMBAI

ITA 2487/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8403 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 20-09-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 30-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V KRISHNAMOORTY
• Keywords: Share purchase agreement; Procedural lapse
• Section: 131

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI . . , , ! '#$% , & ' BEFORE S/SHRI DINESH KUMAR AGARW AL, AND N.K. BILLAIYA, AM ./I.T.A. NO.2487/MUM/2010 ( ( ( ( ( / ASSESSMENT YEAR : 2003-04 THE DCIT, CIRCLE-2(2), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. JDP SHARES PVT. LTD., 22, RAJA BAHADUR MANSION, 3 RD FLOOR, MUMBAI SAMACHAR MARG, FORT, MUMBAI-400 001 ) & ./ *+ ./PAN/GIR NO. : AAACJ 1556D ( ), /APPELLANT ) .. ( -.), / RESPONDENT ) ), / / APPELLANT BY: SHRI V. KRISHNAMOORTY -.), 0 / / RESPONDENT BY : SHRI HIRO RAI 0 1& / DATE OF HEARING : 07.11.2012 23( 0 1& / DATE OF PRONOUNCEMENT : 09.11.2012 4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-5, MUMBAI DT. 15.1.2010 PERTAINING TO A.Y. 2 003-04. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING RELIEF TO THE ASSE SSEE TO THE EXTENT IMPUGNED IN THE GROUND ENUMERATED BELOW:- ITA NO. 2487/M/2010 2 1. THE ORDER OF THE CIT(A) IS OPPOSED TO LAW AND FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT CAPITAL LOSS C LAIMED BY THE ASSESSEE AT RS. 78,57,500/- IN THE TRANSACTIONS OF SHARES OF M/S. INSTRUMENT EXPLORER.COM PVT. LTD. WAS A GENU INE LOSS, DESPITE EVIDENCE TO THE CONTRARY GATHERED BY THE REVENUE TO THE EFFECT THAT IT WAS A COLOURABLE TRAN SACTION ENGAGED IN WITH A VIEW TO REDUCE THE TAX LIABILITY. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT TH E TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET A SIDE AND THAT OF THE AO RESTORED. 3. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE RE VENUE IS THAT THE LOSS CLAIMED BY THE ASSESSEE IN THE TRANSACTION OF SHARES OF M/S. INSTRUMENT EXPLORER.COM PVT. LTD. IS NOTHING BUT A SHAM TRANSA CTION BEING OUTCOME OF A COLOURABLE DEVICE WITH A VIEW TO REDUCE TAX LIABILI TY. 4. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT FO R THE YEAR UNDER CONSIDERATION, THE ASSESSEE INVESTED IN THE SHARES OF M/S. INSTRUMENT EXPLORER.COM PVT. LTD. THE TRANSACTION WAS FOR 1,0 0,000 SHARES OF FACE VALUE OF RS. 10/- EACH AT A PREMIUM OF RS. 92.50 PER SHAR E, THUS, AGGREGATING TO RS. 102.50 PER SHARE. OUT OF THE TOTAL PAYMENT TO BE MADE OF RS. 102.50 PER SHARE, THE COMPANY MADE PAYMENT TO THE EXTENT OF RS . 78.50 PER SHARE. THUS THE TOTAL PAYMENT MADE IN RESPECT OF THIS TRAN SACTION OF 1,00,000 SHARES WAS RS. 78,50,000/- ON WHICH A SUM OF RS. 7,500/- WAS SPENT FOR STAMP CHARGES. THUS THE TOTAL COST OF 1,00,000 SHARES CA ME TO RS. 78,57,500/-. AS THE ASSESSEE COMPANY DID NOT PAY THE 6TH AND 7 TH CALL MONEY, THE SHARES WERE FORFEITED BY M/S. INSTRUMENT EXPLORER.COM PVT. LTD. WHICH RESULTED INTO A LOSS OF RS. 78,57,500/- TO THE COMPANY WHICH IT CLA IMED AS A SHORT TERM CAPITAL LOSS. 5. THIS LOSS WAS QUESTIONED BY THE AO DURING THE CO URSE OF THE ASSESSMENT PROCEEDINGS. THE AO ASKED THE ASSED TO EXPLAIN THE NATURE OF TRANSACTION AND ITS GENUINENESS. THE ASSESSEE FILE D A DETAILED REPLY IN ITA NO. 2487/M/2010 3 RESPECT OF THE NATURE OF TRANSACTION AND HOW THE LO SS WAS COMPUTED. THE AO REJECTED THE EXPLANATION OF THE ASSESSEE AND CAME T O THE CONCLUSION THAT THE ASSESSEE KNOWINGLY PURCHASED THE SHARES OF THE COM PANY M/S. INSTRUMENT EXPLORER.COM PVT. LTD. FROM ITS SISTER COMPANY IN O RDER TO REDUCE ITS TAX LIABILITY. THE AO BASED HIS FINDINGS ON THE FOLLOW ING POINTS: 1. THE ASSESSEE CO, PIVOTAL SECURITIES P.LTD., SUNI DHI CONSULTANCY P.LTD. ARE THE GROUP COMPANIES HAVING COMMON OFFICE. WHEN THE POSITION OF INTERNET EXPLORER.COM PI LTD., WAS NOT GOOD THEN WHY SHARES WERE TRANSFERRED WITHIN THE GROUP? THE WHOLE TRANSACTION MANAGED TO REDUCE TAX LIABILITY OF THE GROUP COMPANY. 2. THE ASSESSEE HAS NOT DIRECTLY PURCHASED THE SHAR ES FROM INSTRUMENT EXPLORER.COM. LTD., BANGALORE. ORIGINALLY, 1,76,000 SHARES WERE PURCHASED BY THE PIVOTAL SECURITIES PVT.LTD., (SIST ER CO. OF THE ASSESSEE) ON 1-6-2000. THEN IT WAS SOLD TO SUNIDHI CONSULTANCY SERVICE P.LTD., (ANOTHER SISTER CO. OF THE ASSESSEE ) ON 24.08.2001 AND LATER ON 1,00,000 SHARES WERE PURCHASED BY JDP SHAR ES AND FINANCE P.LTD., ON 11-11-2002. 3. PAYMENTS WERE NOT MADE BY SUNIDHI CONSULTANCY SE RVICE P. LTD., BUT ADJUSTED AGAINST THE DEBIT BALANCE. THE PAYMENT S WERE MADE BY JDP SHARES AND FINANCE P. LTD., TO SUNIDHI CONSULTA NCY SERVICE P.LTD., HOWEVER, IT IS SEEN THAT THERE WAS NO SUFFICIENT BA LANCE IN THE BANK ACCOUNT THE FUNDS WERE ARRANGED BY SUNIDHI CONSULTA NCY SERVICE P. LTD., 4, WHEN THE ASSESSEE CO. AWARE THAT INSTRUMENT EXPLO RER. CORN LTD., WAS IN BAD POSITION THE PROJECT OF THE CO. COULD NO T TAKE OFF SUCCESSFULLY AND DUE TO OVERHEAD -D ADMINISTRATIVE COST, COMPANYS CAPITAL GOT WIPED OFF THEN THE DIRECTOR OF THE JDP SHARES AND FINANCE P LTD., KNOW THAT PURCHASE OF SHARES OF THIS COMPANY IS NOT GOING TO GIVE ANY RETURN AGAINST ITS INVESTMENT, SO THE PURCHASE OF SHARE AND AFTER ONE MONTH MAKING THEM FORFEITED IS JUST TO REDUCE T HE TAX LIABILITY IN THE FINANCIAL YEAR 2002-03. 5. IT IS ALREADY DECIDED BY THE DIRECTOR OF THE GRO UP CO. ABOUT THE NON- PAYMENT OF FURTHER CALL MONEY AND SHARES WILL BE FO RFEITED BY FROM SUNIDHI CONSULITANCY SERVICE P.LTD., A SISTER CONCE RN TO REDUCE THE CURRENT YEARS TAX LIABILITY. ACCORDINGLY, JDP PURC HASED THE SHARES FROM SUNIDHI ON 11-11-2002 AND WITHIN A TIME OF MONTH TH EY ACT ON THEIR DECISION FOR NOT TO PAY FURTHER CALL MONIES. 6. IT IS QUITE SURPRISED TO NOTE THAT WHEN THE CO. K NOWS THAT SHARES WERE FORFEITED THEN SENDING SHARE CERTIFICATES TO T HE CO. IS UNWARRANTED. ITA NO. 2487/M/2010 4 7, WHEN ASSESSEE WAS ASKED TO PRODUCE THE PROOF FOR DISPATCH OF SHARE CERTIFICATES SENT TO THE CO. AT BANGALORE FOR FORFEITURE AND RECEIVED THE SAME BACK FROM THE COMPANY AND PRODUCE DOCUMENTARY EVIDENCE SUCH AS INWARD/OUTWARD REGISTER, POSTAL/CO URIER ACKNOWLEDGEMENT IN SUPPORT OF HIS CLAIM THAT HE HAS SENT CERTIFICATE TO BANGALORE FOR CANCELLATION. HOWEVER, ASSESSEE FAILE D TO PRODUCE ANY DOCUMENTARY EVIDENCE WHATSOEVER THEREFORE IT IS PRO VED THAT ASSESSEE HAS NOT SENT THE CONCERNED SHARE CERTIFICATE TO BAN GALORE. 8. SUNIDHI CONSULTANCY SERVICE P.LTD., HAS NOT MADE ANY PAYMENT TO PIVOTAL SECURITIES P.LTD. FOR PURCHASE OF SHARES. H OWEVER, IT HAS ADJUSTED AGAINST THE DEBIT BA1ANCE. ASSESSEE HAS MA DE THE PAYMENT TO SUNIDHI CONSULTANCY SERVICE P.LTCL, ON 28.10.200 2. IT IS SEEN FROM THE BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH IC ICI BANK, NARIMAN POINT, MUMBAI-21 THAT FUNDS WERE ARRANGED BY THE SU NIDHI CONSULTANCY SERVICE P.LTD., TO JUST COVER UP THIS TRANSACTION. 9. THE PROCEDURE OF TRANSFER OF SHARES WAS NOT FOLL OWED BY THE INSTRUMENT EXPLORER. COM LTD. LIKE OBTAINING OF NOC FROM THE OTHER SHARE HOLDERS BEFORE TRANSFERRING THE SHARES FROM S UNIDHI TO JDP. IT APPEARS THAT THE WHOLE TRANSACTION IS MANAGED AFFAI RS BY THE ASSESSEE AND ITS SISTER CONCERN WITH THE HELP OF INSTRUMENT EXPLORER. COM P.LTD, THE ASSESSEE COMPANY HAS PURCHASED SHARES FROM SUNI DHI ON 11.11.2002 AND IMMEDIATELY AFTER ONE MONTH TIME ASS ESSEE HAS DECIDED NOT TO PAY FURTHER CALL MONIES. IT MEANS THA T DIRECTORS OF THE COMPANY HAD ALREADY IN THEIR MIND THAT THEY ARE NOT GOING TO PAY FURTHER CALL MONIES AND ACCORDINGLY THE SHARES WILL BE FORFEITED. IN THE CASE OF THE ASSESSEE IT IS HAVING SHORT TERM CAPITA L LOSS OF RS14,09,675 AND SHORT TERM CAPITAL GAIN OF RS.97,29,526. AFTER ADJUSTING THEM THERE IS STILL A PROFIT OF RS.83,19,851. TO SET OFF THE A BOVE PROFIT THE ASSESSEE HAS PURCHASED SHARES OF INSTRUMENT EXPLORER.COM FROM ITS SISTER COMPANY SO AS TO REDUCE ITS TAX LIABILITY. THIS COL OURFUL TRANSACTION WAS MADE JUST TO AVOID TAX LIABILITY. 6. CONSIDERING THE ABOVE FACTS THE ASSESSEES CLAIM OF SHORT TERM CAPITAL LOSS ON FORFEITURE OF SHARES WAS REJECTED BY THE AO ACCORDING TO WHOM THE WHOLE TRANSACTION IS NOTHING BUT A SHAM JUST TO ACC OMMODATE THE LOSS WITHIN THE GROUP COMPANY. 7. AGGRIEVED BY THE FINDING OF THE AO THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A). THE ASSESSEE FILED A DETAILED W RITTEN SUBMISSION BEFORE THE CIT(A) WHICH HAS BEEN INCORPORATED AT PAGE 5 PA RA-8 ONWARDS IN THE ORDER OF THE CIT(A). ITA NO. 2487/M/2010 5 8. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS MADE BY THE ASSESSEE, THE LD. CIT(A) HELD THAT THE AO HAS FAILED TO BRING ON RECORD ANY COGENT EVIDENCE TO DEMONSTRATE THAT THE SAID LOSS WAS ARTI FICIAL AND CREATED IN CONNIVANCE WITH THE CONCERNED PARTIES INVOLVED. TH E CIT(A) OBSERVED THAT IN SO FAR AS THE ASSESSEE IS CONCERNED, THE PAYMENTS W ERE MADE BY ACCOUNT PAYEE CHEQUE AND SUCH A FACT HAS NOT BEEN DISPUTED BY THE AO. THE CIT(A) ALSO RUBBISHED THE THEORY OF THE AO THAT THE TRANSA CTION WAS EXECUTED ONLY FOR REDUCING TAX LIABILITY OF THE PARTIES INVOLVED AS THE PARTIES INVOLVED ARE BODY CORPORATE TAXED AT SAME RATE OF TAXATION. CON SIDERING ALL THE FACTS, THE CIT(A) HELD THAT THE AO WAS NOT JUSTIFIED IN DISALL OWING THE CLAIM OF SHORT TERM CAPITAL LOSS AND ACCORDINGLY ALLOWED THE APPE AL OF THE ASSESSEE. 9. REVENUE IS BEFORE US AGAINST THESE FINDINGS OF T HE CIT(A). THE LD. DEPARTMENTAL REPRESENTATIVE REITERATED WHAT HAS BEE N OBSERVED BY THE AO IN HIS ASSESSMENT ORDER. THE LD. COUNSEL FOR THE ASSES SEE RELIED UPON THE WRITTEN SUBMISSION AS EXHIBITED ON PAGE-5 PARA-8 ON WARDS IN THE ORDER OF THE LD. CIT(A). 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE UNDISPUTED FA CT IS THAT THE COMPANY HAS MADE INVESTMENT IN 1,00,000 SHARES OF M/S. INSTRUME NT EXPLORER.COM PVT. LTD. THE SHARES WERE PURCHASED AT A PREMIUM OF RS. 92.50 ON A FACE VALUE OF RS. 10/- PER SHARE. THE ASSESSEE HAS MADE THE PAYM ENT AS UNDER: MONTH OF PAYMENT NATURE OF PAYMENT AMOUNT PAID PE R SHARE APRIL 2000 APPLICATION MONEY RS. 15.00 JULY 2000 1 ST CALL RS. 15.00 OCTOBER 2000 2 ND CALL RS. 12.50 JANUARY 2001 3 RD CALL RS. 12.00 APRIL 2001 4 TH CALL RS. 12.00 JULY 2001 5 TH CALL RS. 12.00 ITA NO. 2487/M/2010 6 THUS THE ASSESSEE COMPANY PAID RS. 78.50 PER SHARE TOWARDS APPLICATION MONEY AND CALL MONEY. IT IS ALSO AN UN DISPUTED FACT THAT THE ASSESSEE COMPANY DID NOT PAY THE 6 TH AND 7 TH CALL MONEY WHICH RESULTED INTO FORFEITURE OF THE SHARES BY M/S. INSTRUMENT EXPLORER .COM PVT. LTD. IT IS ALSO NOT DISPUTED THAT ASSESSEE-COMPANY AND M/S. INSTRUME NT EXPLORER.COM PVT. LTD. ARE NOT EVEN REMOTELY CONNECTED WITH EACH OTHE R. A PERUSAL OF THE SEQUENCE OF EVENTS SHOW THAT THE ASSESSEES GROUP C OMPANIES DECIDED TO INVEST IN 1,76,000 SHARES OF M/S. INSTRUMENT EXPLORE R.COM PVT. LTD. AS THE SURPLUS FUNDS WERE AVAILABLE WITH A GROUP COMPANY C ALLED M/S. PIVOTAL SECURITIES PVT. LTD. THEREFORE, THE PAYMENTS WERE MADE FROM M/S. PIVOTAL SECURITIES PVT. LTD. AS M/S. PIVOTAL SECURITIES PVT . LTD. OWED CERTAIN AMOUNT TO ANOTHER GROUP COMPANY M/S. SUNIDHI CONSULTANCY SERV ICES PVT. LTD, PIVOTAL SECURITIES PVT LTD TRANSFERRED 176000 SHARES OF M/S . INSTRUMENT EXPLORER.COM PVT. LTD. TO SUNIDHI CONSULTANCY SERVICES PVT . THE TRANSACTION WAS DONE THROUGH BOOK ENTRIES AND WAS ADJUSTED AGAINST THE A MOUNT OUTSTANDING IN THE NAME OF M/S. PIVOTAL SECURITIES PVT. LTD IN THE BOO KS OF SUNIDHI CONSULTANCY SERVICES PVT. LTD. THE GROUP THEN DECIDED TO OFF LOAD ONE LAKH SHARES FROM M/S. SUNIDHI CONSULTANCY SERVICES PVT. LTD. TO THE ASSESSEE COMPANY TO IMPROVE THE NET WORTH OF M/S. SUNIDHI CONSULTANCY S ERVICES PVT. LTD. ACCORDINGLY, ONE LAKH SHARES WERE TRANSFERRED BY M/ S. SUNIDHI CONSULTANCY SERVICES PVT. LTD. TO THE ASSESSEE COMPANY, THE PAY MENT OF WHICH WAS MADE SUBSEQUENTLY BY ACCOUNT PAYEE CHEQUE. THE SHARES W ERE TRANSFERRED IN THE NAME OF THE ASSESSEE COMPANY BY M/S. INSTRUMENT EXP LORER.COM PVT. LTD. THE CALL MONEY WAS RAISED BY M/S. INSTRUMENT EXPLOR ER.COM PVT. LTD TO THE ASSESSEE COMPANY WHICH WAS DEFAULTED BY THE ASSESSE E COMPANY AND RESULTED INTO THE FORFEITURE OF ONE LAKH SHARES. 11. IT IS THE SAY OF THE AO THAT THIS TRANSACTION IS NOTHING BUT A SHAM TRANSACTION AND A COLOURABLE DEVICE FOR REDUCING TH E TAX LIABILITY. IT IS ALSO THE SAY OF THE AO THAT ON PURCHASE OF SHARES BY THE ASS ESSEE COMPANY FROM M/S. SUNIDHI CONSULTANCY SERVICES PVT. LTD., WITHIN A PE RIOD OF 4 DAYS THE ASSESSEE DEFAULTED ON THE FORFEITURE NOTICE AND BOOKED A LOS S OF RS. 78,57,500/-. THIS ITA NO. 2487/M/2010 7 FINDINGS OF THE AO APPEARS TO BE INCORRECT AS PER T HE DETAILS AVAILABLE IN THE ASSESSMENT ORDER AS WELL AS THE FIRST APPELLATE ORD ER, THE SHARES WERE PURCHASED BY THE ASSESSEE COMPANY IN APRIL 2002 AND NOT IN NOVEMBER, 2002 AS ALLEGED BY THE AO. FURTHER, THE ALLEGATION OF T HE AO THAT THE TRANSACTION IS NOTHING BUT A SHAM AND A COLOURABLE DEVICE TO REDUC E THE TAX LIABILITY CANNOT ALSO BE ACCEPTED BECAUSE ON BALANCE 76,000 SHARES M /S. SUNIDHI CONSULTANCY SERVICES PVT. LTD., ALSO BOOKED A LOSS WHICH HAS BE EN ACCEPTED BY THE REVENUE IN THE ASSESSMENT PROCEEDINGS OF M/S. SUNID HI CONSULTANCY SERVICES PVT. LTD.,. 12. FROM THE ASSESSMENT ORDER, WE ALSO NOTICED THAT AN ENQUIRY WAS CONDUCTED BY THE DDIT (INV.) UNIT-II(3), BANGALORE I N THE CASE OF M/S. INSTRUMENT EXPLORER.COM PVT. LTD. IN THE SAID ENQUIR Y, WE FIND THAT STATEMENT OF SHRI SWAMINATHAN WAS RECORDED U/S. 131 . EVEN IN THE SURVEY CONDUCTED AT THE OFFICE OF M/S. INSTRUMENT EXPLORER .COM PVT. LTD., BANGALORE, NO INCRIMINATING DOCUMENTS WERE FOUND WHICH COULD L EAD TO THE CONCLUSION THAT THE TRANSACTIONS WERE NOT GENUINE. ON THE CON TRARY, THE COMPANY CONFIRMED THE FORFEITURE OF SHARES MADE BY IT. THE AO HAS OBSERVED CERTAIN PROCEDURAL DISCREPANCIES FOUND AT THE END OF M/S. IN STRUMENT EXPLORER.COM PVT. LTD WHICH CANNOT BE USED AGAINST THE ASSESSEE AS THIS IS COVERED BY THE DOCTRINE OF INDOOR MANAGEMENT BY WHICH A SHARE HOLDER CANNOT BE HELD LIABLE FOR ANY PROCEDURAL LAPSE DONE BY THE COMPAN Y OF WHICH HE IS THE SHARE HOLDER. ONCE THE SHARES ARE TRANSFERRED IN THE NAM E OF THE PERSON, IT IS SAFELY PRESUMED THAT ALL THE NECESSARY FORMALITIES AS PRES CRIBED IN THE ARTICLES OF ASSOCIATION HAVE BEEN FULFILLED BY THE COMPANY. IF SOME LAPSES COME TO THE KNOWLEDGE SUBSEQUENTLY, THE SHARE TRANSFER CANNOT B E SAID TO BE BOGUS. SIMILARLY, IF THERE WERE CERTAIN LAPSES IN THE SHAR E TRANSFER THAT CANNOT BE A REASON TO TREAT THE ENTIRE TRANSACTION AS A SHAM. 13. ALTHOUGH THE AO HAS DOUBTED THE VERY BASIS OF T HE TRANSACTION BUT AT THE SAME TIME HAS NOT BROUGHT ANY COGENT MATERIAL O N RECORD TO SUBSTANTIATE HIS THEORY.IT IS NOT THE CASE OF THE AO THAT THE AS SESSEE HAS RECEIVED THE FORFEITED AMOUNT IN CASH FROM THE COMPANY . AFTER CONSIDERING THE FACTS AND ITA NO. 2487/M/2010 8 THE SEQUENCE OF EVENTS IN TOTALITY, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A) WHICH ARE CONFIRMED. 14. THE COUNSEL FOR THE ASSESSEE RELIED UPON THE F OLLOWING DECISIONS : 1. DY.CIT V/S MAHENDRA M MEHTA 89 TTJ [ MUMBAI ] 1 2. TAINWALA CHEMICALS & PLASTICS INDIA LTD V/S ACIT 59 DTR [ MUMBAI ] 354 3. MISHAPUR INVESTMENTS LTD V/S ITO 8 SOT 532 [ MU MBAI ] 4. CIT V/S PITTY BROTHERS PVT.LTD 120 ITR 709 AS WE HAVE DECIDED THIS APPEAL ON THE FACTS OF THE CASE THEREFORE WE DO NOT PROPOSE TO DWELL INTO THESE JUDICIAL PRONOUN CEMENTS. 15. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 5 16 * 0 7 &5* 0 *1 8$ ORDER PRONOUNCED IN THE OPEN COURT ON 09.11.2012 . 4 0 3( & 7 9 6 9.11.2012 3 0 : SD/- SD/- (DINESH KUMAR AGARWAL) ( N .K. BILLAIYA ) / JUDICIAL MEMBER & / ACCOUNTANT MEMBER MUMBAI; 9 DATED 09.112012 . . ./RJ , SR. PS