REKHA BAROT, MUMBAI V. DCIT CEN CIR 23, MUMBAI

ITA 2888/MUM/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1555 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 02-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 12-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K B SHUKLA
• Keywords: Search and seizure; Opportunity of being heard; Rule of consistency; Fair market value; Notional interest
• Section: 153A; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH , JM AND SHRI RAJESH KUMAR, AM ./ I .T.A. NO S . 2883/MUM/2011 ( / ASSESSMENT YEA R : 2006 - 07 ) SHRI RAJEN DRA BAROT, 601, SHRI AMBA SHANTI CHAMBERS, OPP. HOTEL LEELA, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI 400 059 . / VS. DCIT, CENTRAL CIRCLE 23, R.NO. 409, AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 400020. ./ PAN : AENPB9154P ( / APP ELLANT) .. ( / RESPONDENT ) ./ I .T.A. NO S . 2965/MUM/2011 ( / ASSESSMENT YEA R : 2006 - 07 ) DCIT, CENTRAL CIRCLE 23, R.NO. 409, AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 20. / VS. SHRI RAJENDRA BAROT, OPP. HOTEL LEELA, ANDHER I KURLA ROAD, ANDHERI (E), MUMBAI 400 059. ./ PAN : AENPB9154P ( / APPELLANT) .. ( / RESPONDENT ) ./ I .T.A. NO S . 2887 AND 2888/MUM/2011 ( / ASSESSMENT YEA RS : 2006 - 07 AND 2007 - 08 ) MRS.REKHA BAR OT, 601, SHRI AMBA SHANTI CHAMBERS, OPP. HOTEL LEELA, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI 400 059 . / VS. DCIT, CENTRAL CIRCLE 23, R.NO. 409, AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 400020. ./ PAN : AENPB 5677H ( / APPELLANT) .. ( / RESPONDENT ) I .T.A. NOS. 2887/MUM/2011 AND OTHER THREE APPEALS 2 / ASSESSEE BY : SHRI ANUJ KISHNADWALA / REVENUE BY : SHRI K B SHUKLA / DATE OF HEARING : 26.10. 201 6 / DATE OF PRONOUNCEMENT : 20. 12. 201 6 / O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER : THESE ARE FOUR APPEALS FILED BY THE RESPECTIVE PARTIES. THESE APPEALS ARE DIRECTED AGAINST THE SEPARATE ORDER S DATED 25.1.2011 PASSED BY THE LD.CIT(A) - 40 , MUMBAI . SINCE ISSUE INVOLVED IN ALL THESE APPEALS ARE COMMON, THEREFORE, FOR THE SAKE OF CONVENIENCE, THESE APPEALS WERE CLUBBED TOGETHER, HEARD TOGETHER AND ARE BEING DECIDED BY THIS COMMON ORDER. I .T.A. NOS.2965/MUM/2011 THE GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE AS UNDER : 1.( A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) FAILED TO APPRECIATE THAT THE ANNUAL VALUE HAS OFFERED BY THE ASSESSEE WAS GROSSLY UNDERSTATED AND THE ASSESSING OFFICER WAS JUSTIFIED IN DETERMINING FAIR MARKET VALUE IN TERMS OF SECTION 23(1)(A) BY ADDING NOTIONAL INTEREST @ 7% ON INTEREST - FREE DEPOSIT OF RS. 1,20,50,000/ - . (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DELETING THE ADDITION MADE AT RS. 8,43,500/ - BEING NOTIONAL INT EREST WHICH COULD FORM A PART OF ANNUAL LETTING VALUE OF THE PROPERTY IN TERMS OF SECTION 23(1)(A) OF THE ACT. 2. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND THE MAIN SOURCE OF INCOME OF THE ASSESSEE ARE SALARY IN COME, INCOME FROM HOUSE PROPERTY , LONG TERM CAPITAL GAINS AND INCOME FROM OTHER I .T.A. NOS. 2887/MUM/2011 AND OTHER THREE APPEALS 3 SOURCES. A SEARCH AND SEIZURE ACTION WAS CONDUCTED U/S 132 OF THE ACT ON 19.7.2007 AT THE PREMISES OF BAROT GROUP UNDER WHICH THE ASSESSEE WAS ALSO COVERED. SOME BOOKS OF AC COUNTS AND DOCUMENTS WERE FOUND AND SEIZED. A NOTICE U/S 153A OF THE ACT WAS ISSUED ON THE ASSESSEE ON 27.2.2008 WHICH WAS COMPLIED WITH BY THE ASSESSEE BY THE BY FILING RETURN OF INCOME DATED 17.3.2008 DECLARING A TOTAL INCOME OF RS.17,41,160/ - . THERE AFTER, NOTICE UNDER SECTION 143 (2 ) DATED 12.08.2008 WAS ISSUED AND SERVED UPON THE ASSESSEE ON 22.08.2008. DURING THE ASSESSMENT PROCEEDINGS, AO NOTICED THAT THE ASSESSEE HAD GIVEN HIS PROPERTY BEING SHRI AMBA SHANTI CHAMBER PROPERTY ON RENT OF RS.9 LAKHS AND ALSO RECEIVED INTEREST FREE REFUNDABLE DEPOSIT OF RS. 1,20,50,000/ - . THE AO NOTED THAT THE ASSESSEE HAS RECEIVED INTEREST FREE DEPOSIT IN LIEU OF LETTING OUT OF THE PROPERTY . THE AO OBSERVED THAT T HE ASSESSEE DELIBERATELY REDUCE D THE RENT OF THE P ROPERTY BY RECEIVING A VERY HUGE INTEREST FREE SECURITY DEPOSIT AND ESTIMATED ANNUAL LETTING VALUE OF THE PROPERTY AT RS.17,43,500/ - WHICH WAS CALCULATED BY ADDING 7% INTEREST ON THE INTEREST FREE SECURITY DEPOSITS OF RS.1,20,50,000/ - TO THE ACTUAL RENT RECEIVED. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A),WHO IN TURN ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING AND HOLDING AS UNDER : 9.16 CONSIDERING THE ABOVE SUBMISSION AND RESPECTFULLY FOLLOWING THE DECISIO N OF THE JURISDICTIONAL TRIBUNAL AND HIGH COURT, IT IS HELD THAT THE ADDITION CANNOT BE MADE IN RESPECT OF NOTIONAL INTEREST UNDER THE HEAD INCOME FROM HOUSE PROPERTY. IN VIEW OF THIS, ADDITION ON ACCOUNT OF NOTIONAL INTEREST OF RS.8,43,500/ - FROM A Y 2002 - 03 TO AY 2007 - 08 AND ADDITION OF RS.50,43,500/ - IN AY 2008 - 09 IS DIRECTED TO BE DELETED . THE AO WILL ALSO REDUCE THE PERMISSIBLE DEDUCTION U/S 24(A) BY I .T.A. NOS. 2887/MUM/2011 AND OTHER THREE APPEALS 4 T AKING THE REVISED ANNUAL VALUE OF PROPERTY. THIS GROUND OF APPEAL IS, ACCORDINGLY ALLOWED AGGRIEVED BY THE ORDER OF LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL. 3 . AT THE OUTSET, THE LD.AR SUBMITTED BEFORE US A COPY OF DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.2966/MUM/2011 (2007 - 08) DA TED 12.10.2015 AND CONTENDED THAT AN IDENTICAL ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE AND PRESENT ASSESSMENT YEAR ALSO STANDS COVERED BY THE ABOVE MENTIONED DECISION OF THE TRIBUNAL. THE LD. DR COULD NOT CONTROVERT THE CONTE NTION OF THE LD.AR AND ALSO COULD NOT FILE ANY MATERIAL CONTRARY TO THE SUBMISSIONS OF THE LD.AR. 4. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW AND DECISION OF THE TRIBU NAL RELIED UPON BY THE ASSESSEE. WE FIND FROM THE ORDER OF THE TRIBUNAL, THE ISSUE RAISED BY THE ASSESSEE STANDS COVERED IN FAVOUR OF THE ASSESSEE . F OR THE SAKE OF READY REFERENCE AND BREVITY, WE REPRODUCE OPERATIVE PART OF THE ORDER AS UNDER : 21. WE H EARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISIONS RELIED ON BY THE LD COUNSEL FOR THE ASSESSEE AND ALSO THE RELEVANT MATERIAL PLACED ON RECORD. THE ISSUE INVOLVED IN THE PRESENT APPEAL RELATES TO THE CO RRECTNESS OF THE ALV OF THE PROPERTY, WHICH WAS RENTED OUT . AO CONSIDERED THE RENTAL ADVANCE AND THE NOTIONAL INTEREST THEREON FOR ARRIVING AT THE ALV. THIS IS THE MATTER OF DISPUTE BETWEEN THE BOTH THE PARTIES BEFORE THE FIRST APPELLATE AUTHORITY AS W ELL AS THE TRIBUNAL. IDENTICAL ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE BY ITS VARIOUS DECISIONS MENTIONED ABOVE. ON PERUSAL OF THE CITED DECISIONS OF THE TRIBUNAL (SUPRA), WE FIND THE DECISION OF THE TRIBUNAL IN THE CASE I .T.A. NOS. 2887/MUM/2011 AND OTHER THREE APPEALS 5 OF M/S. GAGAN TRADING CO. LTD VS. ITO IN ITA NO.5288 & 5468/M/2012 (AY 2009 - 2010), DATED 29.7.2015, WHEREIN ONE OF US (AM) IS A PARTY TO THE SAID ORDER OF THE TRIBUNAL, IS RELEVANT HERE SINCE THE IDENTICAL ISSUE WAS DECIDED BY THE TRIBUNAL. THEREFORE, FOR THE SAKE OF COMPLETENESS OF THIS ORDER, WE FIND IT RELEVANT TO EXTRACT THE RELEVANT PORTIONS OF THE SAID ORDER OF THE TRIBUNAL (SUPRA) DATED 29.7.2015 WHICH IS AS UNDER: 5. ................. WHEREIN THE SAID QUESTIONS WERE ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAI NST THE REVENUE BY RELYING ON THE BOMBAY HIGH COURT JUDGMENT IN THE CASE OF CIT VS. TIP TOP TYPOGRAPHY [2014] 48 TAXMANN.COM 191 (BOMBAY). FURTHER, ............... AN IDENTICAL ISSUES WERE RAISED IN THE SAID APPEAL AND THE SAME WERE AGAIN DECIDED IN FAVOU R OF THE ASSESSEE VIDE ORDER DATED 29.1.2014 IN ITA NOS.6104 AND 6578/M/2011 AND THE CONTENTS OF PARA 6 OF THE SAID TRIBUNALS ORDER ARE RELEVANT IN THIS REGARD, WHICH READ AS UNDER: 6. ......................... IN OUR OPINION, THE SIMILAR ISSUE AS INVO LVED IN THE PRESENT CASE THUS, HAS BEEN DECIDED BY THE COORDINATE BENCH OF THIS TRIBUNAL IN FAVOUR OF THE ASSESSEE IN THE CASE OF RECLAMATION REALITY INDIA PVT LTD (SUPRA) AND SINCE THE SAID DECISION HAS BEEN RENDERED BY THE TRIBUNAL RELYING ON AND FOLLOWI NG THE JUDGMENTS OF HONBLE APEX COURT AND THE HONBLE JURISDICTIONAL HIGH COURT, WE ARE OF THE VIEW THAT THE JUDICIAL PROPRIETY AND JUDICIAL DISCIPLINE REQUIRE US TO FOLLOW THE SAME. ACCORDINGLY, RESPECTFULLY FOLLOWING THE SAID JUDICIAL PRONOUNCEMENT, WE MODIFY THE IMPUGNED ORDER OF THE LD CIT (A) ON THIS ISSUE AND DIRECT THE AO TO ACCEPT THE INCOME FROM HOUSE PROPERTY DECLARED BY THE ASSESSEE ADOPTING THE MUNICIPAL RATABLE VALUE AS ANNUAL LETTING VALUE OF ITS PROPERTY. GROUND NO.1 OF THE ASSESSEES APPE AL IS ACCORDINGLY ALLOWED WHEREAS THE SOLITARY GROUND RAISED IN THE REVENUES APPEALS IS DISMISSED. RESPECTFULLY, FOLLOWING THE FINDINGS OF THE COORDINATE BENCH, REVENUES APPEAL IS DISMISSED AND ASSESSEES APPEAL IS ALLOWED. I .T.A. NOS. 2887/MUM/2011 AND OTHER THREE APPEALS 6 6. THUS, IT IS A DECIDED I SSUE THAT AO IS PREVENTED IN THIS CASE AND PROPERTY FROM DISTURBING THE ALV QUA THE (I) CONSIDERING THE NOTIONAL INTEREST ON DEPOSIT AND (II) NOT CONSIDERING THE MUNICIPAL RATABLE VALUE - BASED - ALV OF THE PROPERTY. IN THIS YEAR, AO HAS NOT GARNERED ANY INCR IMINATING MATERIAL AGAINST THE ASSESSEES CLAIM RELATING TO ALV OF THE PROPERTY IN QUESTION. AFTER CONSIDERING THE ABOVE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE ARGUMENTS OF THE LD DR FOR THE REVENUE, WHO ESSENTIALLY ARGUED FOR SETTING ASIDE THE APPEAL TO THE FILE OF THE AO, WE FIND THE NEED FOR DISMISSING THE ARGUMENTS OF THE LD DR. ............. 22. IN THE PRESENT CASE, AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO DEMONSTRATE THAT THE ACTUAL RENT CHARGED BY THE ASSESSEE IS LESS THAN THE FAIR MARKET VALUE OR THE INTEREST FREE SECURITY DEPOSIT HAS AFFECTED THE RENT CHARGED BY THE ASSESSEE. WE CANNOT SUPPORT THE MODE OF ADDITIONS MADE BY THE AO ON ESTIMATE BASIS IN THE ABSENCE OF ANY EVIDENCE ON RECORD. CONSIDERING THE SAME, RESPECTFULLY FOLLOWING TH E ABOVE CITED DECISIONS OF THE TRIBUNAL (SUPRA) AND ALSO FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE OPINION THAT THE DECISION TAKEN BY THE CIT (A) IN DELETING THE ADDITION MADE BY THE AO IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERF ERENCE. ACCORDINGLY, GROUNDS RAISED BY THE REVENUE IN BOTH THE APPEALS ARE DISMISSED. 5. FROM THE ABOVE FACTS, WE FIND THAT THE THE CASE OF THE ASSESSEE IS IDENTICAL AS TO THAT DECIDED BY THE COORDINATE BENCH IN ASSESSEES OWN CASE (SUPRA). THEREFORE , RESPECTFULLY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH OF THE TRIBUNAL, WE DISMISS THE APPEAL OF THE REVENUE . I .T.A. NOS.2887/MUM/2011 6. DURING THE COURSE OF HEARING, THE LD.AR DID NOT PRESS GROUND NO.1, HENCE DISMISSED AS NOT PRESSED. I .T.A. NOS. 2887/MUM/2011 AND OTHER THREE APPEALS 7 7. THE ISSUE RAISED IN THE GROUND NO.2 RELATES TO UPHOLDING THE ORDER OF AO BY THE LD. CIT(A) QUA THE ADDITION OF RS.19 LAKHS MADE UNDER SECTION 2(22)(E) OF THE ACT ON ACCOUNT OF ADVANCES GIVEN BY M/S IDEAL TOLL ROAD INVESTMENTS AND CORPORATION PVT LTD. (ITRIOL) IN WHICH THE ASSESSEE HOLDS 22.23% AND THE ASSESSEE IS THE MOST BENEFICIAL SHARE HOLDER IN THE COMPANY NAMELY M/S BHARAT INFRASTRUCTURE AND ENGINEERING PVT LTD.(BIEPL) IN WHICH THE ASSESSEE HOLDS 17.33% OF THE VOTING POWERS AND THE ISSUE RA ISED IN SECOND LIMB OF GROUND IS WITHOUT PREJUDICE TO THE FIRST ONE THAT THE LD. CIT(A) ERRED IN NOT CONSIDERING THE SUBMISSIONS OF THE ASSESSEE THAT THE AMOUNT OF RS.19 LAKHS WAS RECEIVED FROM ITRIOL IS IN THE NATURE OF INTER CORPORATE DEPOSIT AND N OT IN THE NATURE OF LOAN OR ADVANCES THEREBY ERRED IN MAKING ADDITION U/S 2(22)(E) OF THE ACT. 8 . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT THE ASSESSEE WAS THE BENEFICIA L OWNER IN BIEPL AND DURING THE YEAR UNDER CONSIDERATI ON THE SAID COMPANY RECEIVED A LOAN OF RS.19 LAKHS FROM M/S ITRIOL IN WHICH THE ASSESSEE WAS ALSO BENEFICIAL OWNER AND THEREFORE, THE AO FURTHER NOTED THAT AS PER THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT THE SAME HAS BEEN TAXED UNDER THE HEAD DEE MED INCOME IN THE HANDS OF THE BIEPL ON SUBSTANTIVE BASIS . THE AO ALSO MADE ADDITION ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE UNDER SECTION 22(2)(E) OF THE ACT AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE I .T.A. NOS. 2887/MUM/2011 AND OTHER THREE APPEALS 8 AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AND HOLDING AS UNDER : 8.5 I HAVE CAREFULLY CONSIDERED THE ISSUE. FOR A.Y. 2006 - 07, NO SPECIFIC SUBMISSIONS /REPLY IS FIL ED BY M/S.BIEL DURING THE ASSESSMENT PROCEEDINGS AS WELL AS DURING THE APPELLATE PROCEEDINGS IN THIS REGARD. IN VIEW OF THIS, ADDITION MADE BY THE AO IS HEREBY CONFIRMED IN THE HANDS OF THE APPELLANT FOR A.Y. 2006 - 07. 8.6 SO FAR AS 'THE' OTHER YEARS A RE CONCERNED, THE APPELLANT'S CONTENTION HAS BEE N THAT T HE MONEY TRANSACTED IS IN RESPECT OF PURCHASE OF PROPERTY AND, THEREFORE, IT DO. PARTAKE THE CHARACTER OF LOAN OR DEPOSIT AND SECTION 2(22)(E) IS NOT ATTRACTED. THE LD. AR CLAIMED THAT MADUVAN PROJEC T, THE DEVELOPMENT COULD NOT PROCEED FURTHER DUE TO COURT LITIGATIONS. IN THIS CASE, COPY OF LETTER SHOWING FLAT BOOKED WAS FILED DURING THE ASSESSMENT PROCEEDINGS. THE AMOUNT IN QUESTION HAS BEEN BORROWED IN 2006 AND THE SAME HAVE BEEN RETURNED IN 2007 WITH INTEREST. IT IS DIFFICULT TO APPRECIATE HOW A FUND PAID TO M/S.BIEL IN 2006 HAD TO BE REPAID BY BIEL IN 2007 ON ACCOUNT OF LITIGATION. THE SUBSISTING RELATION BETWEEN THE COMPANY AND THE APPELLANT IS SUCH WHERE THE PROBABILITY OF ENTERING INTO SUCH A CONTRACT WITHOUT ANY INTENTION OF BUYING OF FLAT IS VERY HIGH. THEREFORE, IN MY CONSIDERED OPINION; THERE IS SUBSTANTIAL MERIT IN THE AO'S CONTENTION THAT THE BOGEY OF ALLOTMENT OF FLAT HAS BEEN MERELY CREATED TO ESCAPE 'THE PROVISIONS OF SECTION 2(22)( E) OF THE IT ACT . IN VIEW OF THIS, THE CONTENTION OF THE APPELLANT IS NOT ACCEPTED AND ADDITION OF RS.25,00,000/ - MADE BY THE AO IS CONFIRMED IN THE HANDS THE APPELLANT . THE SAID AMOUNT CANNOT BE SAI D TO HAVE BEEN UTILIZED FOR PURCHASE OF THE FLAT. SINCE THE SAID ADDITION IS DELETED, IN THE HANDS OF M/S. BIEL, IN VIEW OF THE DECISION OF THE JURISDICTIONAL HIGH COURT, ADDITION IS CONFIRMED IN THE HANDS OF THE APPELLANT ON SUBSTANTIVE BASIS, THOUGH THE ADDITION WAS MADE ON PROTECTIVE BASIS IN THIS CASE BY T H E LD.AO. THIS GROUND OF APPEAL IS DECIDED AGAINST THE APPELLANT 9 . WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED BEFORE US INCLUDING THE ORDERS OF AUTHORITIES BELOW ON THE ISSUE. WE FIND THAT THE ADDITION UNDER SECTI ON 2(22)(E) OF THE ACT OF RS.19 LAKHS HAS BEEN MADE IN THE HANDS OF THE ASSESSEE ON THE PROTECTIVE BASIS, WHEREAS THE ADDITION WAS MA D E IN THE HANDS OF M/S.BIE P L ON SUBSTANTIVE I .T.A. NOS. 2887/MUM/2011 AND OTHER THREE APPEALS 9 BASIS. WE FIND FROM THE ORDER OF THE LD. CIT(A) THAT JURISDICTIONAL TR IBUNAL DELETED THE ADDITION MADE ON SUBSTANTIVE BASIS IN THE HANDS OF M/S.BIE P L . THE LD. AR ARGUED BEFORE US THAT SINCE SUBSTANTIVE ADDITION MADE IN THE HANDS OF M/S.BIE P L HAS BEEN DELETED BY CO - ORDINATE BENCH AND THEREFORE THE ADDITION MADE ON P ROTECTIVE BASIS DESERVED TO BE DELETED AND THE MATTER IS TO BE EXAMINED AT THE END OF THE AO FOR DEN O VO ASSESSMENT OF THE CASE. WE ARE FULLY IN AGREEMENT WITH THE SUBMISSIONS OF THE LD. AR THAT SINCE SUBSTANTIVE ADDITION HAS BEEN DELETED IN THE HANDS OF M/S.BIE P L AND THUS, THE PROTECTIVE ADDITION BE SET ASIDE AND THE MATTER BE RESTORED TO THE FILE OF THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND RESTORE THIS MATTER TO THE FILE FOR AO FOR FRESH EXAMINATION OF THE MATTER AND DECIDE T HE SAME IN ACCORDANCE WITH LAW AFTER BEING PROVID ING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. I .T.A. NO.2888/MUM/2011 & I .T.A. NOS.2883/MUM/2011 10. THE ISSUE S RAISED IN TH ESE APPEAL ARE IDENTICAL TO THAT AS DECIDED BY US IN ITA NO.2887/MUM/2011 EXCEPT FIGURES , A ND THEREFORE, OUR DECISION IN ITA NO.2887/MUM/2011 WOULD , MUTATIS MUTANDIS , APPLY TO TH ESE APPEAL S AS WELL. THE ISSUE IN THESE APPEALS ARE RESTORED BACK TO AO TO MAKE DE - NOVO A SSESSMENT AFTER HEARING THE ASSESSEE AND HE IS DIRECTED ACCORDINGLY. I .T.A. NOS. 2887/MUM/2011 AND OTHER THREE APPEALS 10 11. IN THE RESULT , THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 2006 - 07 IS DISMISSED AND REMAINING APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNC ED IN THE OPEN COURT ON 20TH DEC,201 6 . SD SD ( MAHAVIR SINGH ) ( RAJESH KUMAR ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 20. 12. 2016 SRL,SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP ELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, TRUE COPY / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI