ITO, Pune V. Shri Rasiklal Manikchand Dhariwal Foundation, Pune

ITA 253/PUN/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3216 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 08-02-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE
• Assessee Lawyers: J D MISTRI
• Keywords: Capital asset; Charitable institution
• Section: 12A; 12; 154; 11; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRAKUMAR YADAV AND SHRI D. KARUNAKARA RAO ITA NO. 253/PN/08 (ASST. YEAR 2003-04) ITO, WARD 6(2), PUNE .... APPELLANT VS. SHRI RASIKLAL MANIKCHAND DHARIWAL FOUNDATION, MANIKCHAND HOUSE, PLOT NO. 100-101 D. KENNEDY ROAD, BEHIND HOTEL MERIDIEN, PUNE 411001 PAN NO. AAATR1106J . RESPONDENT ITA NO. 903/PN/09 (ASST. YEAR 2003-04) SHRI RASIKLAL MANIKCHAND DHARIWAL FOUNDATION, MANIKCHAND HOUSE, PLOT NO. 100-101 D. KENNEDY ROAD, BEHIND HOTEL MERIDIEN, PUNE 411001 PAN NO. AAATR1106J .... APPELLANT VS. ACIT, CIRCLE-6, PUNE . RESPONDENT ASSESSEE BY : SHRI J.D. MISTRI REVENUE BY : SHRI ABHAY DAMLE ORDER PER D. KARUNAKARA RAO AM THESE ARE THE CROSS APPEALS FILED BY BOTH THE PARTIES AGAINST THE ORDER OF CIT(A)-II, PUNE DATED 22-08-2008. ITA NO. 253/PN/08 & 903/PN/09 A.Y 2003-04 PAGE 2 OF 8 ITA NO. 253/PN/08 THIS IS THE APPEAL FILED BY THE REVENUE AND THE GROU NDS RAISED ARE AS UNDER:- 1. THE ORDER OF THE LEARNED CIT(APPEALS) IS CONTRA RY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT(APPEALS) GROSSLY ERRED IN DELETI NG THE ADDITION OF RS. 86,73,396/- BEING THE SHORTFALL VIS--VIS 85% O F THE TOTAL RECEIPTS WHICH THE ASSESSEE TRUST WAS REQUIRED TO EX PEND ON ITS OBJECTS, BUT DID NOT DO SO. 3. THE LEARNED CIT(APPEALS) GROSSLY ERRED IN DELETI NG THE ABOVE ADDITION BY HOLDING THAT CONTRARY TO THE STAND TAKE N BY THE ASSESSING OFFICER, THE DONATION OF RS. 2,56,00,000/ - RECEIVED FROM THE DONOR WITH A SPECIFIC DIRECTION FOR USE OF SUCH DONATIONS FOR THE PURPOSE OF CONSTRUCTION OF BUILDING SHOULD BE TAKEN AS A CONTRIBUTION TO THE CORPUS OF THE ASSESSEE TRUST AN D, THEREFORE, THE SAID DONATION WOULD NOT COME INTO THE COMPUTATION O F INCOME FROM PROPERTY HELD UNDER TRUST AS PER SECTION 11. 4. THE LEARNED CIT(APPEALS) GROSSLY ERRED FAILING T O APPRECIATE THAT DIRECTION FOR A CAPITAL PROJECT IS NOT EQUIVALENT T O CORPUS AND, THEREFORE, THE CONTRIBUTIONS WITH SUCH A DIRECTION HAD BEEN CORRECTLY EXCLUDED BY THE ASSESSING OFFICER FROM TH E COMPUTATION OF INCOME U/S. 11. 5. THE LEARNED CIT(APPEALS) GROSSLY ERRED IN FAILIN G TO APPRECIATE THAT CORPUS IS IN THE NATURE OF CAPITAL WHICH IS NOT MEA NT TO BE EXPENDED AS SUCH AND ONLY THE ACCRETIONS TO WHICH A RE TO BE EXPENDED; AND, AS IN THE CASE OF THE ASSESSEE TRUST THE ENTIRE CONTRIBUTION OF RS. 2,56,00,000/- HAD BEEN DIRECTED TO BE FULLY EXPENDED FOR THE CONSTRUCTION OF BUILDING, THE SAME WOULD NOT QUALIFY TO BE TREATED AS CORPUS. 6. THE CIT(A) GROSSLY ERRED IN FAILING TO APPRECIAT E THAT IN THE LIGHT OF THE SPECIFIC DIRECTION OF THE DONOR THAT THE CONTRI BUTION SHOULD BE UTILIZED FOR CONSTRUCTION OF BUILDING, THE REFERENC E MADE BY HIM TO CORPUS IN THE LETTER IN WHICH SUCH A SPECIFIC DIREC TION WAS GIVEN BECAME REDUNDANT AND, THEREFORE, SUCH REFERENCE OUG HT NOT TO HAVE BEEN TAKEN COGNIZANCE OF. 7. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF THE HEARING, THE ORDER OF THE LEARNED CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. ITA NO. 253/PN/08 & 903/PN/09 A.Y 2003-04 PAGE 3 OF 8 2. RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS A TRUST UNDER BPT ACT REGISTERED AS CHARITABLE ORGANIZATION AND IS ALSO REGIST ERED U/S. 12A OF THE INCOME-TAX ACT, 1961. THE INCOME WAS CLAIMED AS EXE MPT U/S. 11 R.W.S. 2(15) OF THE INCOME-TAX ACT, 1961. THE EXCESS OF INCOME O VER EXPENDITURE WAS SHOWN AT RS. 2,01,56,490/- AND 15% THEREOF AT RS. 30,23,47 4/- WAS CLAIMED ACCUMULATION U/S. 11(1)(A) OF THE INCOME-TAX ACT, 1 961. DURING THE ASSESSMENT, IT WAS NOTICED THAT THE ASSESSEE RECEIVED AN AMOUNT OF RS. 2,56,00,000/- TO THE BUILDING FUND OUT OF WHICH RS. 2,51,00,000/- WERE RECEIVED IN THE LAST WEEK OF MARCH, 2003. THE SAID DONATIONS RECEIVED WAS NOT SHOW N IN THE INCOME & EXPENDITURE ACCOUNT OF THE TRUST AND IT WAS SHOWN IN THE EARMARKED FUND IN THE BALANCE SHEET. AS THERE IS NO CONCEPT OF EARMARKED FUND IN THE INCOME-TAX ACT AND ONLY DONATIONS MADE WITH A SPECIFIC DIRECTIO N THAT THOSE SHALL FORM PART OF THE CORPUS FALLING U/S. 11(1)(D) OF THE ACT ARE NO T CONSIDERED INCOME, THE ASSESSING OFFICER HELD THAT THE AMOUNT OF RS. 2,56,0 0,000/- WAS NOT PART OF THE CORPUS OF THE TRUST. ACCORDINGLY, SAID AMOUNT WAS BROUG HT TO TAX. THE SUMMARIZED REASONS AS GIVEN IN PARA 3.4 READ AS FOLLOWS. 3.4. IN THE ASSESSMENT ORDER, THE AO TREATED THE D ONATIONS AS INCOME OF THE APPELLANT. THE AO MADE OBSERVATIONS TO THE F OLLOWING EFFECT: I) SUMS GIVEN AS VOLUNTARY DONATION FOR CONSTRUCTIO N OF THE BUILDING CANNOT BE REGARDED AS DONATION TO CORPUS. II) THE AMOUNTS SPENT ON CONSTRUCTION OF THE HOSPIT AL BUILDING ARE UTILIZED FROM PAST ACCUMULATIONS AND NOT OUT OF THE DONATIONS OF RS. 2.56 CRORES. III) THE MERE FACT THAT IN THE ACCOUNTS THE SUM OF RS. 2.56 CRORES IS TRANSFERRED TO THE BUILDING FUND CANNOT MEAN THAT T HE DONATION HAS BEEN APPLIED. IV) THE APPELLANT DID NOT EXERCISE THE OPTION OF FI LING A NOTICE IN FORM NO. 10 FOR ACCUMULATION OF INCOME. 3. DURING THE FIRST APPELLATE PROCEEDINGS, ASSESSEE MA DE VARIOUS SUBMISSIONS WHICH WERE CONSIDERED BY THE CIT(A) AND G AVE A RELIEF TO THE ASSESSEE AS PER THE DISCUSSION GIVEN IN PARA 3.11 & 3 .12 OF THE ORDER AS FOLLOWS:- 3.11 I HAVE GONE THROUGH THE FACTS OF THE CASE. FROM THE SAMPLE COPY OF THE LETTER ISSUED BY THE DONOR AND REPRODUCED IN THE SU BMISSIONS MADE BY THE APPELLANT IT IS CLEAR THAT THE AMOUNT OF RS. 5 L AKHS GIVEN BY R.M. DHARIWAL HUF ON 26.10.2002 WAS ON ACCOUNT OF BUILDIN G FUND AS CORPUS TO BE UTILIZED BY THE TRUST FOR THE CONSTRUCTION OF A NY BUILDING AS MAY BE REQUIRED. THE OTHER AMOUNTS RECEIVED FROM R.M. DHARIWAL HUF AND DHARIWAL INDUSTRIES LTD. WERE ALS9 FOR THE BUILDING FUN D AS CORPUS AS STATED ABOVE THE I.T. ACT DOES NOT RECOGNIZE ANY EA RMARKED FUND AND, THEREFORE, THE ASSESSING OFFICER CAME THE CONCLUSION T HAT IN CASE A PARTICULAR AMOUNT WAS NOT CREDITED TO THE CORPUS DIREC TLY IT MUST ROUTE ITA NO. 253/PN/08 & 903/PN/09 A.Y 2003-04 PAGE 4 OF 8 THROUGH INCOME AND EXPENDITURE ACCOUNT. IT IS UNDISPU TED FROM THE LETTER REFERRED ABOVE THAT THE DONATION WAS MADE TO THE CORPUS BUT IT WAS FURTHER SPECIFIED BY THE DONOR THAT IT SHOULD BE USED FOR THE PURPOSE OF CONSTRUCTION OF ANY BUILDING WHICH MAY BE REQUIRED TO SUPPORT THE OBJECTS OF THE TRUST. IT IS FOR THE PURPOSE OF GIVING EFFECT T O THE DESIRE OF THE DONOR THAT IN THE CORPUS FUND ITSELF A BUILDING FUND WAS EARMARKED AS EARMARKED FUND OUT OF WHICH THE EXPENDITURE WAS IN CURRED FOR THE PURPOSE OF CONSTRUCTING HOSPITAL BUILDING, SCHOOL BUI LDING, HOSTEL BUILDING AND ALSO FOR THE PURCHASE OF LAND FOR SHIRUR HOSPITAL. IN MY CONSIDERED VIEW, WHERE A SPECIFIC DIRECTION IS GIVEN BY THE DONO R THAT THE CONTRIBUTION WOULD FORM PART OF THE CORPUS OF THE TRUST EVEN THOUGH A FURTHER SPECIFIC DIRECTION IS GIVEN THAT SUCH AMOUNT BE EXPENDED FOR A NY SPECIFIC PURPOSE WHICH IN THIS CASE WAS CONSTRUCTION OF BUILDINGS TO FURTHER THE OBJECTS OF THE TRUST, IT CANNOT BE HELD THAT THERE WAS NO DIRECTI ON THAT THE AMOUNT SHOULD FORM PART OF THE CORPUS. IT CAN ALSO NOT BE INT ERPRETED AS A DIRECTION FOR A CAPITAL PROJECT NOT EQUIVALENT TO ONE FOR THE CORPUS. IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT THE CORPUS HAS BEEN USED FOR THE PURPOSES OF CONSTRUCTION OF THE ABOVE REFERRED HOSPITALS , SCHOOL BUILDINGS AND HOSTELS ETC. FOR THE ASSESSING OFFICER HERSELF AG REES THAT SINCE THE AMOUNT OF RS. 2,51,00,000/- HAD BEEN RECEIVED AT TH E FAG END OF MARCH, 2003 THE AMOUNT COULD NOT BE APPLIED FOR THE CONSTRU CTION OF THE ABOVE REFERRED BUILDINGS BUT COULD BE EXPENDED ONLY FROM COMM ON POOL OF FUNDS AVAILABLE WITH THE TRUST. IT IS ALSO NOT THE CASE OF THE ASSESSING OFFICER THAT THE AMOUNT WAS NOT APPLIED FOR THE OBJECTS OF THE TRU ST IN THE NEXT YEAR. IN VIEW OF THE ABOVE, THE CONTENTION OF THE ASSESSING OFFICER THAT THE AMOUNT RECEIVED WAS NOT PART OF THE CORPUS OF T HE TRUST BEING NOT CORRECT . GROUND OF APPEAL NO. 1 & FIRST PART OF GROUND OF APP EAL NO. 2 ARE ALLOWED. 3.12 AS THE DONATIONS ARE HELD TO BE FOR THE PURPOSE O F CORPUS OF THE TRUST, THE ALTERNATIVE GROUND OF APPEAL THAT THE ASSES SING OFFICER HAD ERRED IN NOT CONSIDERING THE EARLIER ACCUMULATION APPLI CATIONS WHICH WERE ON RECORD AND WHICH SHOULD HAVE BEEN SET OFF AGAINST THE INCOME COMPUTED BECOME INFRASTRUCTURE AND, THEREFORE, DISMISSED. 4. AGGRIEVED WITH THE ABOVE DECISION OF THE CIT(A), THE REVENUE FILED THE PRESENT APPEAL. DURING THE PROCEEDINGS, LD DR RELIED ON THE ORDER OF THE AO AND HE IS ALSO CRITICAL OF THE ORDER OF THE CIT(A) IN GRANT ING RELIEF TO THE ASSESSEE. IN THIS REGARD, LD. DR RELIED ON THE MADHYA PRADESH HIGH COURT JUDGMENT IN THE CASE OF KHEMRAJ NEMICHAND SHRISHRIMAL CHARITABLE TRUST V S. CIT (MP) [1998] 231 ITR 43 FOR THE PROPOSITION THAT, DONATIONS GIVEN TO T HE TRUST FOR SPECIFIC PURPOSE OF ORGANIZING A RALLY OF AGRICULTURISTS WERE NOT ENTITL ED FOR EXEMPTION. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE MADE VARIOUS SUBMISSIONS IN SUPPORT OF THE ORDER OF THE CIT(A) AND FURTHER RELIED ON VARIOUS JUD ICIAL PRONOUNCEMENTS FOR THE PROPOSITION THAT THE DONATION MADE TO THE BUILDI NG FUND, WHICH WAS FINALLY SPENT ON THE BUILDING, THE CAPITAL ASSET, OF THE TRU ST CONSTITUTES THE DONATION TO THE CORPUS OF THE TRUST AND THEREFORE, THE SAID DONATIO NS ARE EXEMPT FROM TAX. FURTHER, HE MENTIONED THAT THE MADHYA PRADESH HIGH COU RT JUDGMENT RELIED ITA NO. 253/PN/08 & 903/PN/09 A.Y 2003-04 PAGE 5 OF 8 UPON BY THE DR IS ON DIFFERENT FACTS, WHICH ARE DISTI NGUISHABLE FROM THE FACTS OF THIS CASE. FURTHER, IN SUPPORT OF THE ARGUMENTS OF THE COUNSEL, VARIOUS CITATION WERE MENTIONED BY THE COUNSEL AND THE DETAILS WILL D ISCUSSED IN THE SUBSEQUENT PARAGRAPHS. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ORDERS OF THE REVENUE. FURTHER, WE HAVE GONE THROUGH THE MATERIAL PLACED ON REC ORD AS WELL AS VARIOUS CITATIONS SUBMITTED BEFORE US. THE GIST OF THE CERTAI N CITATIONS SUBMITTED ARE AS FOLLOWS:- A) TRUSTEE OF KILACHAND DEVCHAND FOUNDATION VS. CIT , HIGH COURT OF BOMBAY (1988) 172 ITR 382 (BOM) FOR THE PROPOSITION THAT VOLUNTARY DONATION MADE EXPRESSLY TO THE CAPITAL OR CORPUS OF A TRUST DOES NOT FALL UNDER THE PURVIEW OF SUB-S. (2) OF S. 12 AND SUCH DONATIONS CANNOT BE D EEMED TO BE INCOME FROM PROPERTY UNDER S. 11 ITO NOT JUSTIFIED IN BRINGING THE AMOUNT OF DONATIONS TO TAX. B) CIT VS. NAGI REDDI CHARITIES IN THE MADRAS HIGH C OURT (2000) 241 ITR 431 FOR THE PROPOSITION THAT MONIES RECEIVED BY TRUST UNDER ASSIGNMENT DIRECTED SPECIFICALLY TO BE HELD AS DONATIONS FORMING PART O F CORPUS FOR CONSTRUCTION OF HOSPITAL TRUST DID NOT DO BUSINESS OF FILM DISTRI BUTION SPECIFIC DIRECTION THAT MONIES SHALL FORM PART OF CORPUS- MONIES RECEIVED F ROM DISTRIBUTORS UNDER ASSIGNMENT NOT INCOME OF TRUST. C) SHRI VASU PUJIYA JAIN DERASAR PEDHI VS. ITO, ITAT J AIPUR BENCH (1991) 39 TTJ (JP) 337 FOR THE PROPOSITION THAT BEING CORPUS DONATIONS, THEY COULD NOT BE TREATED AS PART OF INCOME AS PER S. 2(24)(IIA) R/WS . 12. D) ST. ANNS HOME FOR THE AGED VS. ITO, ITAT BANGALO RE BENCH, (1980) 10 TTJ (BANG) 144 FOR THE PROPOSITION THAT VOLUNTARY CONTRIBUTIONS RECEIVED WITH SPECIFIC DIRECTIONS THAT PURPOSE OF DONATION WAS CONSTRUCTION OF BUILDING FOR CHARITABLE USE ITO HOLDING THAT DONATIONS WERE I NCOME AS THEY WERE NOT FOR CORPUS OF TRUST AAC UPHELD ITOS ORDER AFORES AID DIRECTIONS OF DONORS AMOUNTED TO DONATIONS FOR CORPUS OF TRUST AND, THER EFORE, WERE NOT INCOME ASSESSEES CLAIM FOR EXEMPTION OF INCOME ADMITTED . ITA NO. 253/PN/08 & 903/PN/09 A.Y 2003-04 PAGE 6 OF 8 ON BEHALF OF THE REVENUE, THE LD. DEPTL. REP. SUP PORTED THE ORDERS OF THE LOWER AUTHORITIES. HE SUBMITTED THAT THE VOLUNTARY CONTRI BUTIONS MADE BY THE DONORS CANNOT BE SAID TO BE TOWARDS THE CORPUS OF THE ASSE SSEE-INSTITUTION. HE ADDED THAT THE CONTRIBUTIONS MADE FOR THE CONSTRUCTION OF THE BUILDING COULD NOT BE DESCRIBED AS CONTRIBUTION TOWARDS THE CORPUS. HE, T HEREFORE, URGED THAT THE VOLUNTARY DONATIONS MADE WOULD FALL WITHIN THE TERM INCOME UNDER S. 12 OF THE I T ACT, 1961. HE, THEREFORE, URGED THAT THE ORDER OF THE ACC SHOULD BE CONFIRMED. E) ITO VS. SATYA KABIR SAHABANI GADI , ITAT, AHMEDA BAD A BENCH (1994) 50 TTJ (AHD.) 501 FOR THE PROPOSITION THAT , CHARITABLE TRUST- VOLUNTARY CONTRIBUTIONS TOWARDS CORPUS CONTRIBUTIONS TO TRU ST SPECIFICALLY TOWARDS BUILDING FUND AND KAYAMI FUND BOTH FUNDS FORM CORPUS OF THE TRUST CONTRIBUTION IS TOWARDS CORPUS OF THE TRUST AND THE REFORE NOT INCOME FOR PURPOSES OF S. 12. DONATIONS MADE SPECIFICALLY TOWARDS CORPU S OF THE TRUST DO NOT CONSTITUTE ITS INCOME FOR PURPOSES OF S. 12. 6. IN ADDITION TO THE ABOVE, THE COUNSEL READ OUT T HE TEXT OF THE LETTERS PLACED AT PAGES 76 ONWARDS OF THE PAPER BOOK WRITTEN B Y THE DONOR IN CONNECTION WITH THE IMPUGNED DONATIONS. IN VIEW OF THE IMPORTANCE, RELEVANT EXTRACTS OF THE SAME IS REPRODUCED AS UNDER. GIVEN THIS DONATION AS CORPUS FOR BUILDING FUND TO BE UTILIZED BY THE TRUST FOR CONSTRUCTION OF ANY BUILDING AS MAY BE REQUIRED TO SUPPORT THE OBJECTS OF THE TRUST . 7. FROM THE LANGUAGE USED BY THE DONORS, IT IS EVIDEN T THAT THE DONORS MENTIONED THE REQUISITE EXPRESSIONS I.E. CORPUS AND BUILDING FUND AND TO SUPPORT THE OBJECTS OF THE TRUST . WE HAVE ALSO PERUSED PAPER BOOK AND FOUND THAT THE EARMARKED FUND IS FINALLY FOUND A WAY IN TO THE CORPUS ACCOUNT OF THE TRUST. THEREFORE, WHEN THE DONOR USED THE EXPRESSIONS I.E. CORPUS AND THE BUILDING FUND IN THE COVERING LETTER, WHEN THE DONATI ONS WERE INDEED USED FOR THE PURPOSE IT IS MEANT AS INDICATED BY THE DONORS, WHEN THESE INVESTMENTS FINALLY FOUND WAY IN TO THE CORPUS OF THE TRUST IN THE SUBSEQ UENT YEARS, WHEN THERE ARE PLETHORA OF DECISIONS AS NARRATED ABOVE IN FAVOUR OF T HE ASSESSEE, IN OUR CONSIDERED OPINION, THE SAME DONATIONS CANNOT CONSTI TUTE THE TAXABLE INCOME OF THE TRUST IN VIEW OF THE PROVISIONS OF SECTION 11 OF THE ACT. THEREFORE, ORDER OF ITA NO. 253/PN/08 & 903/PN/09 A.Y 2003-04 PAGE 7 OF 8 THE CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORDI NGLY APPEAL OF THE REVENUE IS DISMISSED . 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . ITA NO. 903/PN/09 9. THIS IS A CROSS APPEAL FILED BY THE ASSESSEE AND THE GROUNDS RAISED IN THIS APPEAL ARE AS UNDER:- 1. THE COMMISSIONER OF INCOME-TAX (A)-II ERRED IN DISMISSING THE APPEAL AGAINST THE ORDER DISMISSING THE APPELLANTS APPLICATION UNDER SECTION 154 OF THE INCOME-TAX ACT, 1961. 2. THE CIT(A) ERRED IN HOLDING THAT THE APPELLANT D OES NOT HAVE A RIGHT UNDER THE LAW TO APPLY FOR ACCUMULATION UNDER SECTION 11(2) IN THE COURSE OF THE ASSESSMENT PROCEEDINGS AND THAT SUCH AN APPLICATION CAN BE MADE ONLY BEFORE THE TIME ALLOWED UNDER SECTION 139 (1). 3. THE CIT(A) ERRED IN HOLDING THAT THE APPLICATION UNDER SECTION 154 RAISED A DEBATABLE ISSUE AND THAT THEREFORE THE ASS ESSING OFFICER WAS JUSTIFIED IN REJECTING THE APPLICATION. 4. THE CIT(A) OUGHT TO HAVE INDEPENDENTLY ADJUDICAT ED UPON THE MERITS OF THE APPEAL FILED BEFORE HIM AGAINST THE O RDER UNDER SECTION 154 OF THE ACT. 10. DURING THE PROCEEDINGS BEFORE US, LD. COUNSEL FOR T HE ASSESSEE DOES NOT PRESS THIS APPEAL IF THE APPEAL OF THE REVENUE IS DIS MISSED. WE ACCORDINGLY DISMISSED AS NOT PRESSED IN VIEW OF OUR DECISION OF D ISMISSAL IN THE REVENUES APPEAL. ACCORDINGLY, THIS APPEAL OF THE ASSESSEE I S DISMISSED AS NOT PRESSED. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED AND THAT OF THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER, 2010. SD/- SD/- (SHAILENDRAKUMAR YADAV) (D.KARUNAKAR A RAO) JUDICIAL MEMBER ACCOUNTANT MEMBE R PUNE DATED THE 28 TH OCTOBER, 2010 R ITA NO. 253/PN/08 & 903/PN/09 A.Y 2003-04 PAGE 8 OF 8 COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEE 2. ITO, WARD 6(2), PUNE / ACIT, CIRCLE-6, PUNE 3. CIT(A)-II, PUNE 4. CIT-III, PUNE 5. D.R. ITAT A BENCH BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE