ITO 7(1)-3, MUMBAI V. M/S. PARVESH CONSTRUCTION P.LTD., MUMBAI

ITA 2690/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48870 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 18-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 27-04-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R S RAWAL
• Assessee Lawyers: A K GHOSH
• Keywords: Share purchase agreement; Additional evidence; Corroborative evidences
• Section: 131; 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, C, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND RAJENDRA SINGH ( A.M ) ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) INCOME TAX OFFICER 7(1)(3), R.NO.665, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400020 M/S PARVESH CONSTRUCTION P.LTD., 5 TH FLOOR, MILITA APARTMENT, MATHAR PAKHADI ROAD, MAZGAON, MUMBAI-400010 PAN:AACCP8801D APPELLANT V/S RESPONDENT APPELLANT BY : SHRI R.S.RAWAL RESPONDENT BY : SHRI A.K.GHOSH O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 25.2.2009 PASSED BY THE LEA RNED COMMISSIONER OF INCOME TAX (A) FOR THE ASSESSMENT Y EAR 2003-04 TAKING FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) HAS ERRED IN CONCLUDING THA T THE ASSESSEE HAS PURCHASED 101800 SHARES OF M/S BRIJ LAXMI LEASING AND FINANCE LTD FROM SHRI J.K.CHATURVEDI ON 30.06.2001 AND THEREFORE, DIRECTI NG THE AO TO TREAT THE GAIN ARISING OUT OF SALE OF TH ESE SHARES AS LONG TERM CAPITAL GAIN DISREGARDING THE F ACT THAT SHRI J.K.CHATURVEDI HAS CATEGORICALLY DENIED HAVING SOLD ANY SHARES TO THE ASSESSEE COMPANY IN HIS STATEMENT RECORDED ON OATH. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) ERRED IN ENTERTAINING AN ADDITIONAL EVIDENCE IN THE FORM OF PRINT OUT FROM T HE ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 2 WEBSITE OF THE BOMBAY STOCK EXCHANGE PRODUCED BY T HE ASSESSEE AS A PROOF OF HAVING PURCHASED THE SHARES FROM SHRI J.K.CHATURVEDI ON IN CONTRAVENTION OF RULE 46A WHICH WAS NOT MADE AVAILABLE TO THE AO FOR EXAMINATION DURING ASSESSMENT PROCEEDINGS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) HAS ERRED IN ACCEPTING THE ASSESSEES PLEA THAT THE STATEMENT ON OATH GIVEN BY SHRI J.K.CHATURVEDI IS FALSE WITHOUT APPRECIATING THE FACTS AND CIRCUMSTANTIAL EVIDENCE CONCERNING THE IS SUES INVOLVED IN THE CASE WHICH HAS BEEN DISCUSSED IN D ETAIL IN THE ASSESSMENT ORDER. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT( A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO RESTORED. THE APPELLANT CRAVES LEAVE TO AMEND OR AL TER ANY GROUND OR ADD A NEW GROUND THAT MAY BE NECESSAR Y 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE- COMPANY IS IN THE BUSINESS OF DEALING IN DEVELOPM ENT OF PROPERTIES, FILED RETURN DECLARING INCOME OF RS.1,0 0,49,560/-. DURING THE COURSE OF ASSESSMENT THE AO OBSERVED TH AT THE ASSESSEE-COMPANY HAD PURCHASED 101800 SHARES OF M/S BRIJ LAXMI LEASING AND FINANCE LTD. (IN SHORT BLFL) IN APRIL/MAY, 2001 AND THE SAID SHARES WERE SOLD IN AU GUST 2002 FOR A TOTAL CONSIDERATION OF RS.1,02,65,332/ - AND ACCORDINGLY THE ASSESSEE OFFERED LONG TERM CAPIT AL GAINS OF RS.98,50,853/- (SALE CONSIDERATION RS.1,02,65,33 2/- - BROKERAGE CHARGES RS.4,258/- = RS.1,02,61,073/- - P URCHASE COST RS.4,10,222/-). TO VERIFY THE PURCHASES OF TH E ABOVE SHARES, THE AO ISSUED A LETTER DATED 20.10.2005 TO M/S BRIJ LAXMI LEASING AND FINANCE LTD., 203, STERLING CEN TRE, R.C.DUTT ROAD, ALKAPURI, BARODA, GUJARAT 399005 CALLING ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 3 FOR CERTAIN INFORMATION UNDER SECTION 133(6) OF T HE INCOME TAX ACT, 1961( THE ACT). THE SAID LETTER WAS R ETURNED BY THE POSTAL AUTHORITY WITH THE REMARK LEFT. HOWE VER, THE LETTER WAS SERVED ON THE SAID COMPANY I.E. BLFL AT THEIR MUMBAI OFFICE AS PER THE ADDRESS PROVIDED BY THE AS SESSEE. IN RESPONSE, TO THE SAID LETTER, THE INFORMATION CA LLED FOR UNDER SECTION 133 (6) OF THE ACT WAS FURNISHED BY THE SAID COMPANY VIDE LETTER DATED NIL, FILED IN THE OFFICE ON 23.11.2005. THE AO FURTHER OBSERVED THAT AS PER TH E INFORMATION RECEIVED FROM THE ABOVE COMPANY IT IS R EVEALED THAT THE SHARES IN QUESTION WERE TRANSFERRED IN THE NAME OF THE ASSESSEE-COMPANY FROM ONE SHRI J.K.CHATURVEDI, 24, SUVAMAPURI SOCIETY, CHIKUWADI, BARODA. THE AO REFE RRED THE MATTER TO THE INCOME TAX AUTHORITIES AT BARODA TO VERIFY THE PURCHASES ALLEGEDLY MADE BY THE ASSESSEE-COMPAN Y FROM SHRI J.K.CHATURVEDI, BARODA. THE INCOME TAX AUTHOR ITIES, BARODA EXAMINED SHRI J.K.CHATURVEDI UNDER SECTION 131 OF THE ACT. HE DENIED TO HAVE SOLD THE SHARES OF BLFL DURING FINANCIAL YEAR 2001-02 OR FINANCIAL YEAR 2002-03. THE RELEVANT PORTION OF THE QUESTIONS AND ANSWERS ARE REPRODUCED BELOW: Q.3 HAVE MADE ANY SALES TRANSACTIONS OF SHARE OF BRIJLAXMI LEASING AND FINANCE CO.LTD DURING THE YEAR 2001-02? ANS. AS PER THE BALANCE SHEET FURNISHED BEFORE YOUR OFFICE, NO TRANSACTION OF SHARE OF M/S BRIJLAXMI LEASING AND FINANCE CO. DURING ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 4 THE YEAR 2001-02 Q.4 DO YOU HAVE ANY TRANSACTIONS WITH M/S PARVESH CONST. (P) LTD, ADD, P-705, MARUTI PARADISE, PLOT NO.92-95, SECTOR 15, BELAPUR, NEW MUMBAI DURING FY 2001- 02 AND FY 2002-03? ANS AS PER KNOWLEDGE THERE ARE NO SUCH TRANSACTIONS DURING THE FYS 2001-02 AND 2002-03 IN VIEW OF THE ABOVE, THE AO ISSUED A SHOW CAUSE LETTER TO THE ASSESSEE INTERALIA STATING ABOVE MENTIONED FAC TS THAT THE ASSESSEES CLAIM OF PURCHASING THE ABOVEMENTIONED SHARES OF BLFL DURING A.Y.2002-03 HAS BEEN DISAPPROVED BY THE STATEMENT ON OATH OF SHRI J.K.CHATURVEDI BECAUSE H E DENIED TO HAVE SOLD THESE SHARES DURING THE PERIOD. THE C OPY OF THE STATEMENT ON OATH WAS ALSO SENT TO THE ASSESSEE. T HEREFORE, THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE EN TIRE SALE CONSIDERATION OF RS.98,50,853/- SHOULD NOT BE TREA TED AS THE INCOME FROM SHORT TERM CAPITAL GAIN AND THE CASE WAS FIXED FOR HEARING ON 14.3.2006. IT WAS ALSO MADE CLEAR BY THE AO THAT NO ADJOURNMENT IS POSSIBLE DUE TO LIMITATION O F TIME UNDER SECTION 153 OF THE ACT. HOWEVER, THE ASSESS EE SOUGHT ADJOURNMENT ON THE GROUND THAT THEY HAVE REFERRED THE MATTER TO THEIR COUNSEL WHICH WAS DENIED BY THE AO AND ACCORDINGLY, THE AO HELD THAT THE SHARES 101800 OF BLFL ALLEGEDLY PURCHASED BY THE ASSESSEE-COMPANY IS NOT PROVED AND HENCE HE TREATED THE ENTIRE GAIN OF RS.98,50,85 4/- AS SHORT TERM CAPITAL GAIN AND THEREBY COMPLETED THE ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 5 ASSESSMENT AT AN INCOME OF RS.1,04,49,560/- VIDE O RDER DATED 20.3.2006 PASSED UNDER SECTION 143(3) OF THE ACT. 3. ON APPEAL, BEFORE THE LEARNED COMMISSIONER OF IN COME TAX (A), THE ASSESSEE SUBMITTED AS UNDER (PAGES 3, 4 AND 5 OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A):- 1.7 ON THE OTHER HAND, THE APPELLANT SUBMITTED BE FORE THE CIT(A) THAT - 1. THE BUYING WAS DONE THROUGH M/S K.K.FINTRADE LTD UNDER PHYSICAL FORM UNDER CONTRACT NO.F04/000 & F07/000. THE CONTRACT NOTES WERE DULY ATTESTED BY M/S K K FINTRADE LTD. THE PHYSICAL SHARE CERTIFICATES ALONG WITH THE TRANSFER FORM DULY COMPLETED IN ALL RESPEC TS WERE LODGED WITH THE COMPANY M/S BRIJLAXMI LEASING AND FINANCIAL LTD FOR RECORDING THE TRANSFER. THE SAI D INVESTMENT IS APPEARING AS INVESTMENT IN SHARES IN THE APPELLANTS AUDITED BALANCE SHEET AS ON 31.3. 2002. THE INCOME TAX RETURNS FOR A.Y.2002-03 COVERED TH ESE TRANSACTIONS AND THE SAME WERE ASSESSED ACCORDINGLY . 2. THE SHARE CERTIFICATE FOR 1,01,800 SHARES DULY TRANSFERRED IN THE NAME OF APPELLANT COMPANY WERE RECEIVED FROM M/S BRIJLAXMI LEASING AND FINANCIAL LTD UNDER THEIR LETTER NO. BRIJ/TR/069/006939 DATED 30.6.2001. THE SAID LETTER WAS ENCLOSED FOR THE RE ADY REFERENCE. 3. M/S BRIJLAXMI LEASING & FINANCE LTD., THE SAID COMPANY HAD DIRECTLY WRITTEN TO THE AO CONFIRMING THE SAID TRANSACTION. THE SAID LETTER WAS ALSO ENCLOS ED FOR READY REFERENCE. THE SAID COMPANY ALSO SUBMITTED A FURTHER LETTER OF CONFIRMATION ABOUT THE TRANSACTIO N. THE SAID LETTER WAS ENCLOSED FOR READY REFERENCE. 4. THE APPELLANT HAD LODGED 1,01,800 SHARES FOR DEMATERIALIZATION WITH THEIR BANKERS, THE UNITED WESTERN BANK LTD VIDE ACKNOWLEDGEMENT RECEIPT DRF NO/CDS/5513 DATED 12.8.2002. THE SAID LETTER WAS ENCLOSED FOR READY REFERENCE. 5. IT SOLD THE SAID SHARES ON BOMBAY STOCK EXCHANGE THROUGH M/S SPS SHARES BROKERS PVT. LTD A S UNDER :- ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 6 DATE OF SALE CONTRACT NOTE NO.. NO.OF SHARES SOLD 29.08.2002 GMB/9 25,000 04.09.2002 GNB/13 76,800 THE SAID CONTRACT NOTES WERE ENCLOSED FOR READY REFERENCE. 1.8. THE APPELLANT RECEIVED THE SALE CONSIDERATION FROM M/S SPS SHARE BROKERS PVT. LTD. AND THE SA ME HAD BEEN SUITABLY RECORDED IN ITS COMPUTATION OF I NCOME. 1.9. TO PROVE THE GENUINENESS OF THE TRANSACTION O F SALE OF SHARES, THE APPELLANT CLAIMED TO HAVE TAKE N UP THE MATTER WITH M/S SPS SHARES BROKERS PVT LTD. IT SUBMITTED THE FOLLOWING :- A) CONTRACT NOTES ISSUED BY M/S SPS SHARE BROKERS PVT LTD. FOR THE SALE OF SHARES OF BOMBAY STOCK EXCHANGE (BSE). B) PRINT OUT OF STOCK PRICES AS PUBLICISED BY BOMBAY STOCK EXCHANGE OF THE SHARE OF M/S BRIJLAXMI LEASING & FINANCE LTD. FOR THE YEAR 2002-2003. C) PRINTOUT OF STOCK PRICES AS PUBLICIZED BY BOMBAY STOCK EXCHANGE OF THE SHARES OF M/S BRIJLAXMI LEASING & FINANCE LTD FOR THE MONTH OF AUGUST 2002.. D) PRINTOUT OF STOCK PRICES AS PUBLICISED BY BOMBAY STOCK EXCHANGE OF THE SHARE OF M/S BRIJLAXMI LEASING & FINANCE LTD. FOR THE MONTH OF SEPTEMBER 2002. E) CONTRACT NOTES ISSUED BY THE PURCHASING BROKER M/S K.K.FINTRADE LTD. 1.10. THE APPELLANT CERTIFIED THAT ALL THE ABOVE SA ID DOCUMENTS WERE SUBMITTED BEFORE THE AO DURING THE COURSE OF THE REGULAR ASSESSMENT PROCEEDINGS. ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 7 1.11 THE APPELLANT FURTHER SUBMITTED THAT THE AO HA D BLINDLY RELIED ON THE FALSE STATEMENT OF SRI J.K.CH ATURVEDI IN A PREJUDICIAL MANNER WITHOUT GIVING TO THE APPE LLANT AN OPPORTUNITY FOR CROSS EXAMINATION OF SRI J.K.CHATURVEDI. IT WAS STATED THAT THE AO HURRIED LY FINALIZED THE ASSESSMENT. 1.12. IT WAS ALSO STATED THAT THE AO HAD NOT MAD E ANY CHANGE TO THE RETURNED INCOME. THE ONLY POINT O F APPEAL WAS THE TREATMENT GIVEN TO CAPITAL GAINS BY THE AO. THE INCOME TAX ACT AND THE CIRCULAR ISSUED CL EARLY STATE THAT THE DATE OF BROKERS NOTE SHOULD BE CONSIDERED AS THE DATE OF ACQUISITION IF THE TRAN SACTION IS COMPLETED BY WAY OF PHYSICAL DELIVERY OF SHARES . IN THE GIVEN CASE, ALL THE FURTHER FORMALITIES OF DE LIVERY, REGISTRATION OF TRANSFER, DEMATERIALISATION AND SA LE HAVE BEEN COMPLETED IN ENTIRELY. AS SUCH THE RELEVANT DA TE FOR DETERMINING THE DATE OF ACQUISITION IS CONCLUSIVELY THE DATE OF THE BROKERS NOTE. THE AO SHOULD CONSIDER THE TOTAL PERIOD OF HOLDING FROM THE DATE OF BROKERS NOTE FOR PURCHASE TILL THE DATE OF BROKERS NOTE FOR SALE. THIS PERIOD OF HOLDING ACTUALLY EXCEEDED 12 MONTHS AND A S SUCH THE CAPITAL GAINS RESULTING FROM THE SALE OF SHARES HAD TO BE ASSESSED AS LONG TERM CAPITAL GAINS, EVE N IF THE DATE OF RECORDING THE PURCHASE IN THE TRANSFER REGISTER I.E. 30.06.2001 IS CONSIDERED, ALONG WITH THE DATE OF RECORDING SALE IN THE TRANSFER REGISTER I.E . AT 29.08.2002 AND 30.08.2002, THE PERIOD OF HOLDING EXCEEDS 12 MONTHS AND AS SUCH THE CAPITAL GAINS RESULTANT FROM THE SALE OF SHARES WOULD BE LONG TE RM CAPITAL GAINS AND ASSESSED ACCORDINGLY 4. THE LEARNED COMMISSIONER OF INCOME TAX (A) CALL ED FOR A REMAND REPORT FROM THE AO. IN THE REMAND REP ORT, THE AO HAS STATED AS UNDER (PAGE 6 OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A) :- 1.15 THE ITO HAD STATED THEREIN THAT THE COPIES OF SHARES CERTIFICATES IN PHYSICAL FORM HAD NOT BEEN FURNISHED DURING ASSESSMENT PROCEEDINGS. K K FINT RADE LTD HAD ISSUED THE CONTRACT NOTE IN THE CAPACITY O F A MEMBER OF M.P.STOCK EXCHANGE INDORE WHO WAS ITSEL F STATED TO HAVE A CONTRACTUAL ARRANGEMENT IN THE YEA R 2001 WITH M/S MAHESHWARI INVESTMENT AND FINANCE SERVICES (INDORE) PVT. LTD IN SUPPORT OF WHICH A ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 8 CONFIRMATION LETTER HAD BEEN FILED WHICH WAS SIGNE D BY M/S MAHESHWARI INVESTMENT, AN EVIDENCE WHICH WAS NO T FOUND RELIABLE BY THE AO 1.16 THE ITO HAD REFERRED TO THE CONFIRMATION LETTE R FROM M/S BRIJLAXIM LEASING AND FINANCE LTD ADDRESSE D TO THE AO CONFIRMATION THE TRANSACTION OF SHARES. SINC E SRI J.K.CHATURVEDI WAS HOLDING THESE SHARES OF M/S BRIJLAXMI LEASING AND FINANCE LTD BEFORE THE TRAN SFER AND HIS ADDRESS WAS OF BARODA, A LETTER WAS WRITTE N BY AO TO THE ADDL. DIT (INV) BARODA FOR ENQUIRY IN RE SPECT OF SUCH SALE OF SHARES OF BLFPL, DURING WHICH SRI J.K.CHATURVEDI U/S 131 HAD DENIED OF ANY SUCH TRANSACTION TO THE APPELLANT. ACCORDING TO THE ITO , THERE WAS NO FORCE IN THE APPELLANTS ARGUMENTS. THESE S HARES WERE NEVER SHOWN AS PURCHASED THROUGH BANK AS NO CORRESPONDING PAYMENTS FOR SUCH PURCHASE HAD BEEN SHOWN. EVEN THE SHARES HAD BEEN DEMATERIALISED IN T HE MONTH OF AUGUST 2002 DURING WHICH THE SALES HAD TA KEN PLACE. THEREFORE THERE WAS NO MERIT IN THE APPELLA NTS CASE. THUS, THE CROSS EXAMINATION OPPORTUNITY WAS NOT NECESSARY TO BE GIVEN TO THE APPELLANT FOR EXAMININ G SRI J.K.CHATURVEDI 5. IN THE REJOINDER, THE ASSESSEE HAS EXPLAINED AS UNDER (PAGES 7 TO 12 OF CIT(A)S ORDER : 1.18 THE AO HAD NOTED THAT THE APPELLANT COMPANY FAILED TO PRODUCE THE SHARE CERTIFICATES IN PHYSICA L FORM FOR VERIFICATION BY THE AO. IN THIS REGARD IT WAS EXPLAINED BY THE APPELLANT THAT THESE CERTIFICATES IN THE PHY SICAL FORM HAD BEEN GIVEN TO THE BANK TO GET THE SAME DEMATERIALIZED, IN SUPPORT OF WHICH A COPY OF THE ACKNOWLEDGEMENT FROM THE BANK WAS GIVEN TO THE AO WHICH IS REPRODUCED HEREUNDER: - ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 9 DATED 12 AUG 2002 WE HEREBY ACKNOWLEDGE THE RECEIPT OF CERTIFICATES/ ORIGINAL OPTION LETTER, IN RESPECT OF THE FOLLOWING SECURITIES FOR DEMATERIALIZATION SUBJECT TO VERIFIC ATION. ACCOUNT NO. 1302610000003110 SOLE/FIRST HOLDER NAME PARVESH CONSTRUCTION PVT. LTD. NAME OF THE COMPANY BRIJLAXMI LEASING & FINANCE LTD. TYPE OF SECURITY EQUITY ISIN INE 957E01015 NO. OF SECURITIES 101800 NO. OF CERTIFICATES 1018 RECEIVED THE UNITED WESTERN BANK, PANVEL SINCE THE SHARES IN QUESTION HAD BEEN SURRENDERED T O THE BANK, THE APPELLANT WAS UNABLE TO PRODUCE THE SAME BEFORE THE AO. 1.19 THE NEXT ALLEGATION BY THE AO WAS THAT K.K.FINTRADE LTD THROUGH WHICH THE APPELLANT CLAIME D TO HAVE PURCHASED THE SHARES, WAS NOT REGISTERED WITH THE STOCK EXCHANGE BECAUSE THE REGISTRATION NUMBER QUO TED WAS THAT OF MAHESHWARI INVESTMENT AND FINANCE SERVICE (INDORE) PVT. LTD. THE CONFIRMATION LETTE R SIGNED BY M/S MAHESHWARI INVESTMENT WAS ONLY IN A SIMPLE LETTER FORM WHICH SHOWED THAT THEY HAD A CONTRACTUA L ARRANGEMENT WITH M.S K.K.FINTRADE LTD. FOR DEALING ON THEIR BEHALF IN THE PURCHASE AND SALES OF SHARES, A N ACT WHICH WAS LEGALLY VALID, MORE SO WHEN THE CONFIRMAT ION LETTER FROM M/S MAHESHWARI INVESTMENT AND FINANCE SERVICE (INDORE) PVT. LTD. HAD BEEN PRODUCED BEFORE THE AO. HOWEVER, THE AO DID NOT ACCEPT THE SAME AS RELIABLE. THIS CONFIRMATION LETTER FROM M/S K.K.FI NTRADE LTD. STATED AS BELOW:-. WE HAVE PURCHASED ON ACCOUNT OF M/S PARVESH CONSTRUCTION PVT. LTD 101800 SHARES OF M/S BRIJLAXMI LEASING AND FINANCE LTD. THE TRANSACTION DETAILS ARE AS UNDER : ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 10 DATE CONTRACT NOTE NO. NO.OF SHARES OF BRIJLAXMI LEASING & FINANCE LTD. 16.4.2001 FO4/000 25,000 10.5.2001 FO7/000 76,800 TOTAL 101800 WE HAD A CONTRACTUAL ARRANGEMENT IN THE YEAR 2001 WITH M/S MAHESHWARI INVETMENT & FINANCIAL SERVICES (INDORE)PVT LTD WHO ARE REGISTERED WITH M P STOCK EXCHANGE LTD.AS A MEMBER AND WERE HOLDING SEBI REGISTRATION NO. INBO70612433. WE ARE ENCLOSING A COPY OF THE SAID ARRANGEMENT FOR YOUR READY REFERENCE. 1.20 FURTHER, A CONFIRMATION FROM M/S PRAMOD GARG & ASSOCIATES, CA, WAS ALSO PRODUCED WHICH IS AS BELO W: I HEREBY CONFIRM THAT M/S K.K.FINTRADE LTD. IS COMPANY REGISTERED IN THE STATE OF MADHYA PRADESH UNDER THE COMPANIES ACT, 1956 BEARING REGISTRATION NO.10-10250 OF 12-12-1995. I ALSO CONFIRM THAT M/S K.K.FINTRADE LTD IS ASSESSED TO INCOME TAX UNDER THE JURISDICTION OF INDORE AND IS ALLOTTED PAN IS AAFFK1354E. ON THE BASIS OF BOOKS OF ACCOUNTS MAINTAINED BY COMPANY, I CONFIRM THAT THE CONTRACT NOTES NO.F04/000 DATED 16-4-2001 AND NO F07/000 DATED 10-5-2001 ISSUED IN THE NAME OF M/S PARVESH CONSTRUCTION PRIVATE LTD ARE ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS OF THE COMPANY. ON THE BASIS OF INFORMATION GIVEN BY THE BOARD OF DIRECTORS OF TH E COMPANY, I FURTHER CONFIRM THAT M/S K.K.FINTRADE L TD WAS OPERATING IN MADHYA PRADESH STOCK EXCHANGE UNDER THE FINANCIAL/ARRANGEMENT WITH M/S MAHESHWARI INVESTMENT & FINANCIAL SERVICES ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 11 (INDORE) PVT. LTD. UNDER SEBI REGISTRATION NO.INBO70612433 1.21 THE AO HAD STATED THAT THE BALANCE SHEET OF S RI J.K.CHATURVEDI DID NOT REFLECT THE TRANSFER OF SHAR ES TO THE APPELLANT. IN THIS CONNECTION IT WAS EXPLAINED THAT THE APPELLANT WAS NOT PROVIDED WITH ANY COPY OF ANY BALANCE SHEET OF SRI J.K.CHATURVEDI, IF ANY, AVAIL ABLE WITH THE AO AND THEREFORE IT WAS NOT IN A POSITION TO OFFER ITS COUNTER COMMENT. HOWEVER, THE APPELLANT HAS FURNISHED OTHER DIRECT DOCUMENTARY EVIDENCES TO PRO VE THAT SRI J.K.CHATURVEDIS STATEMENT WAS FALSE. THE SAME WILL BE DISCUSSED AGAIN THE SUBSEQUENT PARAS OF THI S ORDER. 1.22 THE AO HAD COMMENTED THAT SINCE SRI J.K.CHATURVEDI, M.D. OF BRIJLAXMI LEASING AND FIN ANCE LTD, HAD DENIED OF ANY SUCH TRANSFER OF SHARES BY HIM TO THE APPELLANT COMPANY, THE APPELLANTS CASE BECOMES FURTHER WEAKER. 1.23. AGAINST THIS THE APPELLANT FURNISHED THE CONFIRMATION LETTER FROM THE COMPANY ITSELF M/S BRI JLAXMI LEASING AND FINANCE LTD TO CONFIRM THAT THESE SHARE S AMOUNTING 1,01,800 WERE PURCHASED BY THE APPELLANT COMPANY ON 30.6.2001 AND SOLD BY THE APPELLANT COMPANY ON 29/30-08-2002. THIS CONFIRMATION LETTER WAS SENT TO THE ITO DIRECTLY BY BRIJLAXMI LEASING AND FINANCE LTD, WHICH IS REPREODUCED HEREUNDER:- TO THE INCOME TAX OFFICER WE GIVE HEREUNDER THE TRANSACTION AS RECORDED IN OUR COMPANIES STATUTORY RECORD. NAME OF THE SHAREHOLDER :-M/S PARVESH CONSTRUCTIO N PVT.LTD P-502,MARUT I PARADISE, PLOT NO.92 TO 95 SECTOR- 15, CBD, BELAPU R, NEW MUMBAI. ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 12 SHAREHOLDER FOLIO NO. :- 006939 TOTAL SHAREHOLDING :- 101800 DATE OF RECORDING PURCHASE:-30.06.2001 DATE OF RECODING SALE :-29.08.2002 & 30.08.2002 FOR BRIJLAXIMI LEASING & FINANCE LTD. SD/- DIRECTOR/AUTHORISED SIGNATORY 1.24 THE AO HAD FURTHER STATED THAT THE APPELLANT H AD NEVER RAISED THE QUESTION OF CROSS EXAMINING SRI J.K.CHATURVEDI DURING THE COURSE OF REGULAR ASSESSM ENT. 1.25. DENYING THIS OBSERVATION OF THE AO, THE APPEL LANT FURNISHED A COPY OF THE LETTER ADDRESSED TO THE AO AS BELOW: TO THE INCOME TAX OFFICER 7(1)(3), WE WOULD BE OBLIGED IF YOU WOULD FIX UP A HEARING A T YOUR OFFICE BY SUMMONING MR. J.K.CHATURVEDI FOR CROSS EXAMINATION ALONG WITH THE NECESSARY DOCUMENTS. YOURS SINCERELY, FOR PARVESH CONSTRUCTION PVT.LTD SD/- AUTHORISED SIGNATORY 1.26. THE AOS NEXT ALLEGATION WAS THAT THE APPELLA NT HAD CLAIMED THE PURCHASE PRICE OF THOSE SHARES @ RS.4.00 ONLY WHEREAS THEY WERE SOLD AFTER A YEAR @ RS.100.83, WHICH WAS UNBELIEVABLE WHICH MIGHT HAVE BEEN PURCHASED IN PHYSICAL FORM BACK DATED AS PENN Y STOCK AND DEMATERIALISED ONLY AT THE TIME OF SALE THROUGH THE MODUS OPERANDI TO TREAT THE SALE AS LON G TERM CAPITAL GAIN. 1.27 THE APPELLANT STRONGLY OBJECTED TO SUCH OBSERVATION BY THE AO WHICH WAS STATED TO HAVE BEE N ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 13 MADE WITHOUT ANY EVIDENCES OR SUPPORTING. THE APPELLANT FURNISHED A PRINT OUT OF BOMBAY STOCK EXCHANGE WEBSITE DETAILS OF STOCK PRICES, WHICH W AS AVAILABLE TO ANY MEMBER OF PUBLIC ON SUCH OPEN WEBS ITE, REFLECTING THE STOCK PRICES AS BELOW:- STOCK PRICES SCRIP CODE : 532113 COMPANY NAME : BRIJLAXLEAS FOR THE PERIOD : APRIL 2002 TO MARCH 2003 DATE OPEN (RS.) HIGH (RS.) NO OF SHARES APRIL 2002 82.90 88.10 46700 AUGUST 2002 98.25 101.85 679100 MARCH 2003 108.65 110.50 156296 THIS PROVED THAT THE APPELLANT WAS INCAPABLE OF MANIPULATING THE STOCK PRICE OF A LISTED COMPANY L IKE BRIJLAXMI LEASING AND FINANCE LTD WHICH HAVE VARIE D IN THE RANGE OF RS.82.90 AND RS.110.50 IN A SPAN OF ONE YEAR-APRIL 2002 TO MARCH 2003. UNFORTUNATELY THE WEBSITE INFORMATION WAS NOT AVAILABLE FOR THE EARL IER PERIOD AND THEREFORE THEY COULD BE COMMENTED UPON. THIS ALSO SHOWS THAT IT IS NOT A CASE OF SOLITARY P URCHASE OR SOLITARY SALE BECAUSE EVEN BEFORE THE TRANSACTI ON OF SUCH PURCHASES AND THE TRANSACTION OF SUCH SALES OF THE SHARES OF THIS COMPANY BY THE APPELLANT, STILL CONSIDERABLE NUMBER OF SHARES WERE HELD BY THIS LIS TED COMPANY, A VERY REMARKABLE FEATURE PRESENT IN THIS CASE AND DISTINGUISHING THE SAME FROM THOSE IN THE CASE OF PENNY STOCK. 1.28. THE AO HAS ALLEGED FOR THE EXISTENCE OF THE SHARES IN THE DEMATERIALIZED FORM AS WELL AS PHYSIC AL FORM, IT WAS STATED THAT SRI J.K.CHATURVEDI WAS HO LDING THESE SHARES IN PHYSICAL FORM AS WELL AS DEMATERIA LISED FROM AS BELOW AND THERE WAS NO BAR IN HOLDING THE SHARES IN EITHER FORM. IT IS ONLY AT THE TIME OF TRANSFER THAT SUCH SHARES HAVE TO BE DEMATERIALISED. IN T HIS CONNECTION, THE FOLLOWING STATEMENT WAS GIVEN:- ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 14 SHAREHOLDING PATTERN BRIJLAXMI LEASING & FINANCE LTD SHAREHOLDING OF PROMOTER AND PROMOTER GROUP TOTAL NO. OF SHARES TOTAL NO. OF SHARES HELD IN DEMATERIALISED FORM (I) INDIAN 3472770 1780420 1.29 THE AOS NEXT ALLEGATION WAS THAT THE PURCHASE PRICE HAS NOT PASSED THROUGH THE BANKING CHANNELS. THE APPELLANT EXPLAINED THAT THE SHARES ARE NEVER PURCH ASED FROM THE SELLER DIRECTLY. IT IS ALWAYS DONE THROUG H THE BROKER WITH WHOM THERE IS A RUNNING ACCOUNT AND PERIODICAL PAYMENTS ARE MADE ON NET BASIS . 6. THE LEARNED COMMISSIONER OF INCOME TAX (A) AFTER CONSIDERING THE ASSESSEES SUBMISSIONS, REMAND REP ORT AND THE REJOINDER OF THE ASSESSEE OBSERVED THAT IN THIS CASE, THE AO WAS ASKED TO ISSUE SUMMON TO SHRI J.K.CHATURVEDI FOR CROSS-EXAMINATION AND ACCORDINGLY, THE AO WROTE A LETTER DATED 22.7.2008 TO SHRI J.K.CHATURVEDI TO APPEAR BEFORE HIM. IN RESPONSE, SHRI J.K.CHATURVEDI VIDE HIS LE TTER DATED 4.8.2008 SOUGHT TIME DUE TO PRE-OCCUPATION AND TO ENABLE HIM TO COLLECT THE REQUIRED INFORMATION. THE LEARNE D COMMISSIONER OF INCOME TAX (A) FURTHER OBSERVED TH AT NEITHER SHRI J.K.CHATURVEDI APPEARED NOR MADE ANY SUBMISSIONS EVEN AFTER A LAPSE OF MORE THAN SIX MON THS. THE LEARNED COMMISSIONER OF INCOME TAX(A) FURTHER OBSER VED THAT SINCE THE APPEAL IS AN OLD APPEAL HAVING HIGH DEMAND, THEREFORE, HE DECIDED TO PROCEED WITH ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND TO DECIDE THE APPEAL ON MER ITS. THE ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 15 LEARNED COMMISSIONER OF INCOME TAX (A) AFTER CONSID ERING THE MATERIAL AVAILABLE ON RECORD AND KEEPING IN VIE W THE CONFIRMATION BY THE UNITED WESTERN BANK LTD. DATED 14.03.2006, COPY OF BANKS STATEMENT OF ACCOUNT, C OPIES OF DOCUMENTS SUBMITTED BEFORE THE AO, ANALYSIS OF THE STATEMENT OF SHRI J.K.CHATURVEDI, PRINTOUT RECEIVE D FROM BOMBAY STOCK EXCHANGE WEBSITE SHOWING THE CHANGE IN SHAREHOLDING PATTERN OF SHRI J.K.CHATURVEDI AND M/S BRIJ LAXMI LEASING AND FINANCE LTD BETWEEN 1.4.2001 TO 1.7.2001 AND THE COPY OF EXTRACT OF TRANSFER REGIST ER SHOWING THE TRANSFER OF 101800 SHARES IN THE ASSESSEES NAM E FILED BY THE ASSESSEE, HELD VIDE PARAGRAPHS 1.45 AND 1. 46 OF HIS ORDER THAT THE GAIN ARISING OUT OF SALE OF THE SE SHARES IS A LONG TERM CAPITAL GAIN AS UNDER : 1.45 THE AOS CONCLUSION THAT NO ACTUAL PURCHASE W AS MADE ON 30.6.2001 BY THE APPELLANT FROM SRI J.K.CHATURVEDI IN THE LIGHT OF SOLITARY REASON BASE D ON SRI CHATURVEDIS STATEMENT, GETS PROVED OTHERWISE IN VIEW OF THE ABOVE MENTIONED DOCUMENTS, OBSERVATIONS AND FINDINGS. IT HAD ALREADY BEEN CERTIFIED BY THE APPELLANT THAT ALL THESE EVIDENCES WERE DULY FURNI SHED TO THE AO AND THEREFORE NON OF THE EVIDENCES WERE NEW AS ON DATE, ESPECIALLY WHEN SUCH DOCUMENTS HAD BEEN AGAIN SENT TO THE AO AT LEAST TWICE BY MY PREDECESS OR (CIT(A) FOR VERIFICATION AND REPORT. 1.46 THEREFORE, SINCE THE DATE OF PURCHASE AND THE DATE OF SALE BEING 30-06-2001 AND 29/30-08-2002 RESPECTIVELY, AS SHOWN BY THE APPELLANT GET ESTABL ISHED, THE AO IS DIRECTED TO TREAT THE GAIN ARISING OUT OF SALE OF THESE SHARES AS LONG TERM CAPITAL GAINS (INSTEAD OF SHORT TERM CAPITAL GAINS TAKEN BY HIM). ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 16 7. AT THE TIME OF HEARING, THE LEARNED D.R. SUBMITS THAT FOR THE REASONS AS DISCUSSED IN THE ASSESSMENT ORDER, THE LEARNED COMMISSIONER OF INCOME TAX (A) WAS NOT JU STIFIED IN ENTERTAINING ADDITIONAL EVIDENCE IN THE FORM OF PRINTOUT FROM THE WEBSITE OF THE BOMBAY STOCK EXCHANGE IN CONTRAVENTION OF RULE 46A AND IN HOLDING THAT THE GAIN ARISING OUT OF SALE OF THESE SHARES AS LONG TERM C APITAL GAIN INSTEAD OF SHORT TERM CAPITAL GAIN ASSESSED BY TH E AO. HE, THEREFORE, SUBMITS THAT THE ORDER PASSED BY THE AO BE RESTORED. 8. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT IN VIEW OF THE DOCUMENTARY EV IDENCE SUBMITTED BY THE ASSESSEE BEFORE THE AO AND THE LE ARNED COMMISSIONER OF INCOME TAX (A), THE LEARNED COMMISS IONER OF INCOME TAX (A) WAS FULLY JUSTIFIED IN DIRECTING THE AO TO TREAT THE GAIN ARISEN OUT OF THE SHARES AS LONG T ERM CAPITAL GAIN INSTEAD OF SHORT TERM CAPITAL GAIN. HE, TH EREFORE, SUBMITS THAT THE ORDER PASSED BY THE LEARNED COMMIS SIONER OF INCOME TAX (A) BE UPHELD. 9. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE O N RECORD. WE FIND THAT THE CLAIM OF THE ASSESSEE IS THAT THE ASSESSEE HAS PURCHASED SHARES OF M/S BRIJ LAXMI LEASING AND FINANCE ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 17 LTD. 50,000 ON 16.4.2001 FOR RS.1,96,250/- AND 518 00 SHARES ON 10.5.2001 FOR RS.2,13,970/- AGGREGATING T O RS.4,10,220/- AND THE SAID 25000 SHARES WERE SOLD ON 29.8.2002 FOR RS.25,09,750/- AND 76800 SHARES WERE SOLD ON 30.8.2002 FOR RS.77,55,582/- TOTALLING TO RS.1,02, 65,332/- AND AFTER DEDUCTING THE BROKERAGE ON SALE OF SHARE S RS.4,258/- IT HAS SHOWN THE GAIN OF RS.98,50,853/- AS LONG TERM CAPITAL GAIN. PER CONTRA, THE CLAIM OF THE REVENUE IS THAT ON THE BASIS OF THE STATEMENT OF SHRI J.K.CH ATURVEDI, THESE SHARES WERE NOT PURCHASED DURING THE FINANCI AL YEAR 2001-02 AND HENCE THE AO TREATED THE ENTIRE GAIN O F RS.98,50,853/- AS SHORT TERM CAPITAL GAIN. WE FU RTHER FIND THAT BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (A) THE ASSESSEE HAS FILED HIS WRITTEN SUBMISSIONS ALONG WI TH THE COPY OF DOCUMENTARY EVIDENCE FILED BEFORE THE AO A ND ALSO FILED DETAILED ANALYSIS OF THE STATEMENT OF SHRI C HATURVEDI. APART FROM THIS, THE ASSESSEE HAS ALSO FILED AN EXT RACT OF TRANSFER REGISTER OF M/S BRIJ LAXMI LEASING AND FI NANCE LTD. AND OTHER SUPPORTING EVIDENCE. THE LEARNED COMMIS SIONER OF INCOME TAX (A), AFTER CONSIDERING THE ASSESSEE S SUBMISSIONS, REMAND REPORT OF THE AO AND THE DOCUM ENTARY EVIDENCE FILED BEFORE HIM WHILE OBSERVING THAT AL L THESE EVIDENCES WERE DULY FURNISHED TO THE AO AND AGAIN SENT TO THE AO AT LEAST TWICE FOR VERIFICATION, HAS HELD THAT THE GAIN ARISEN OUT OF SALE OF SHARES IS A LONG TERM CAPITA L GAIN ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 18 INSTEAD OF SHORT TERM CAPITAL GAIN ASSESSED BY TH E AO. AT THE TIME OF HEARING THE LEARNED D.R. HAS NOT PLACED ANY CONTRARY MATERIAL AGAINST THE OBSERVATIONS AND FIN DINGS OF THE LEARNED COMMISSIONER OF INCOME TAX (A). AT THIS STAGE, AT THE COST OF REPETITION, WE CONSIDER IT NECESSA RY TO REPRODUCE THE CONFIRMATION LETTER OF THE COMPANY M /S BRIJ LAXMI LEASING AND FINANCE LTD, WRITTEN TO THE A O CONFIRMING THAT THE TRANSACTION OF IMPUGNED SHARE S WAS RECORDED IN THEIR STATUTORY RECORDS OF THE COMPAN Y AS UNDER: TO THE INCOME TAX OFFICER WE GIVE HEREUNDER THE TRANSACTION AS RECORDED IN OUR COMPANIES STATUTORY RECORD. NAME OF THE SHAREHOLDER :-M/S PARVESH CONSTRUCTIO N PVT.LTD P-502,MARUT I PARADISE, PLOT NO.92 TO 95 SECTOR- 15, CBD, BELAPU R, NEW MUMBAI. SHAREHOLDER FOLIO NO. :- 006939 TOTAL SHAREHOLDING :- 101800 DATE OF RECORDING PURCHASE:-30.06.2001 DATE OF RECODING SALE :-29.08.2002 & 30.08.2002 FOR BRIJLAXIMI LEASING & FINANCE LTD. SD/- DIRECTOR/AUTHORISED SIGNATORY ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 19 IN THE ABSENCE OF ANY CONTRARY MATERIAL TO SHOW TH AT SUCH STATUTORY RECORD MAINTAINED BY THE COMPANY M/S BRI J LAXMI LEASING AND FINANCE LTD IS FALSE OR UNTRUE OR TH ERE IS NO SUCH CONFIRMATION, WE ARE OF THE VIEW THAT THE AO WAS NOT JUSTIFIED IN NOT RELYING ON THE SAID STATUTORY REC ORD MAINTAINED M/S BRIJ LAXMI LEASING AND FINANCE LTD . SINCE, AS PER THE COMPANYS RECORD 101800 SHARES WERE REGI STERED IN THE NAME OF THE ASSESSEE COMPANY ON 30.6.2001 AN D THE SAME WERE ALSO SHOWN BY THE ASSESSEE COMPANY IN THE AUDITED BALANCE SHEET AS ON 31.3.2002 AS INVESTMENT IN SHARES AND KEEPING IN VIEW OTHER SUPPORTING DOCUMEN TARY EVIDENCES FILED BY THE ASSESSEE WE ARE OF THE VIEW THAT THE AO MERELY ON THE BASIS OF STATEMENT OF SHRI J.K.CH ATURVEDI, NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE, WAS NOT JUSTIFIED IN HOLDING THAT THE SHARE WERE NOT PURCH ASED IN FINANCIAL YEAR 2001-02 AND IN TREATING THE SAME AS SHORT TERM CAPITAL GAIN BY ACCEPTING THE COST OF PURCHAS E OF 101800 SHARES FOR RS.4,10,220/- AS SHOWN BY THE A SSESSEE. IN THIS VIEW OF THE MATTER WE ARE OF THE VIEW THAT THE LEARNED COMMISSIONER OF INCOME TAX(A) WAS FULLY JUSTIFIED I N HOLDING THAT THE DATE OF PURCHASE AND DATE OF SALE OF SHARE S ARE 30.06.2001 AND 29/30.8.2002 RESPECTIVELY AND IN DIR ECTING THE AO TO TREAT THE GAIN ARISING OUT OF SALE OF TH ESE SHARES AS LONG TERM CAPITAL GAINS. THE GROUNDS RAISED BY THE REVENUE ARE, THEREFORE, REJECTED. ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 20 10. SINCE THE ASSESSEE HAS NOT DISPUTED THE FINDI NG OF THE LEARNED COMMISSIONER OF INCOME TAX (A) OF PURCHASE OF SHARES AS ON 30.6.2001 AND IN THE ABSENCE OF ANY MA TERIAL TO SHOW THE MARKET PRICE OF SHARES AS ON 30.6.2001, TH EREFORE FOR THIS LIMITED ISSUE TO VERIFY THE PURCHASE PRICE AS ON 30.6.2001 WE CONSIDER IT FAIR AND REASONABLE THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE AO AND ACCORDING LY, WE SEND BACK THE MATTER TO THE FILE OF THE AO TO ASCER TAIN THE PURCHASE PRICE OF 101800 SHARES AS ON 30.6.2001 AN D WORK OUT THE LONG TERM CAPITAL GAIN ON THE SALE OF 101 800 SHARES AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 11. IN THE RESULT, REVENUES APPEAL STANDS PARTLY A LLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 25TH MAY,201 1 SD SD (RAJENDRA SINGH ) (D.K.A GARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 25 TH MAY, 2011 SRL:20511 ITA NO.2690/MUM/2009 (ASSESSMENT YEAR: 2003-04) 21 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILED. TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI