NUSLI N WADIA, MUMBAI V. ADDL CIT RG 2(1), MUMBAI

ITA 3122/MUM/2010

• Counselvise Citation: 312219914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 20-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 21-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUBACHAN RAM
• Assessee Lawyers: M D INAMDAR; MR S E DASTUR AW MR NIRAJ SETH
• Keywords: Capital asset; Business income; Question of law
• Section: 11A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO.3119/MUM./2010 (ASSESSMENT YEARS : 2005-06 ) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-2(1), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBAI 400 020 .. APPELLANT V/S MR. NUSLI N. WADIA NEVILLE HOUSE, J.N. HEREDIA MARG BALLARD ESTATE, MUMBAI 400 001 PAN AAAPW0990M .... RESPONDENT ITA NO. 3122/MUM./2010 (ASSESSMENT YEAR : 2005-06 ) MR. NUSLI N. WADIA NEVILLE HOUSE, J.N. HEREDIA MARG BALLARD ESTATE, MUMBAI 400 001 PAN AAAPW0990M .. APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-2(1), AAYAKAR BHAVAN 101, M.K. ROAD, MUMBAI 400 020 .... RESPONDENT REVENUE BY : MR. SUBACHAN RAM ASSESSEE BY : MR. MR. S.E. DASTUR A/W MR. NIRAJ SETH & MR. M.D. INAMDAR DATE OF HEARING 22.7.2011 DATE OF ORDER 30.8.2011 MR. NUSLI N. WADIA ITA NO.3119/MUM./2010 ITA NO.3122/MUM./2010 2 O R D E R PER J. SUDHAKAR REDDY, A.M. CROSS APPEALS IN ITA NO.3119/MUM./2010, PREFERRED B Y THE REVENUE AND ITA NO.3122/MUM./2010, PREFERRED BY THE ASSESSE E, FOR ASSESSMENT YEAR 2004-05, ARE DIRECTED AGAINST THE IMPUGNED ORD ER DATED 22 ND FEBRUARY 2010, PASSED BY THE COMMISSIONER (APPEALS)-IV, MUMB AI. 2. GROUNDS RAISED BY THE REVENUE, READ AS FOLLOWS:- 1. THE ORDER OF THE LEARNED CIT(A) IS OPPOSED TO LA W AND FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN TREATING RECEIPT OF ` 26,99,76,000 RECEIVED ON TRANSFER OF LAND AS NON-TAXABLE WITHOUT APPRECIA TING THE FACT THAT THE ASSESSEE IS NOT THE RESIDUARY LEGATEE OF LATE SHRI E.F. DINSHAW AND THE CONTROL, MANAGEMENT AND OWNERSHIP OF THE PR OPERTIES CONSISTING OF THE ESTATE OF SHRI E.F. DINSHAW VESTS TOTALLY WITH THE ASSESSEE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) OUGHT TO HAVE TREATED THE RECEIP TS EITHER AS SHORT TERM CAPITAL GAIN OR ADVENTURE IN THE NATURE OF TRA DE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) IN HOLDING THAT THE TRANSACTIONS OF PURCHASE AND SALE OF SHARES / UNITS OF MUTUAL FUNDS INCLUDING PM S TRANSACTIONS, ARE CAPITAL GAINS RELYING ON THE DECISION OF SHRI JANAK S. RANGWALA V/S ACIT, ITA NO.1163/MUM./2004) AND THE ACIT V/S SHRI MOTILAL OSWAL, ITA NO.3860, 3861, 3862 & 3863/MUM./2001). THE NATU RE OF ACTIVITY OF THE ASSESSEE, TURNOVER INVOLVED IN THE PURCHASE AND SALE OF SHARES AND THE SHORT DURATION OF HOLDING PERIOD SHOWED THA T THE SAID ACTIVITY CONSTITUTES AN ADVENTURE IN THE NATURE OF TRADE AND NOT AN INVESTMENT ACTIVITY. 3. GROUNDS RAISED BY THE REVENUE, READ AS FOLLOWS:- 1. THE COMMISSIONER (APPEALS) ERRED IN NOT ADJUDICA TING THE ALTERNATIVE PLEA OF THE APPELLANT THAT AS THE AMOUN TS RECEIVED BY THE APPELLANT COULD NOT HAVE BEEN DISTRIBUTED BY THE ES TATE OF MR. E.F. MR. NUSLI N. WADIA ITA NO.3119/MUM./2010 ITA NO.3122/MUM./2010 3 DINSHAW, THE QUESTION OF ANY AMOUNT BEING TAXED IN THE HANDS OF THE APPELLANT DOES NOT ARISE. 2. THE COMMISSIONER (APPEALS) ERRED IN NOT GIVING A SPECIFIC FINDING THAT THE DISTRIBUTION MADE BY THE ADMINISTR ATOR TO THE APPELLANT WAS FORM THE MONIES RECEIVED AS ADVANCES TOWARDS TH E FUTURE SALE OF PROPERTIES AND THE SUBJECT MATTER OF TRANSFER UNDER THE INDENTURE DATED 26 TH SEPTEMBER 2001, WAS THE RIGHT TITLE AND INTEREST IN, TO HAND OVER THE PROCESS OF THE SALE AND/OR DISPOSAL OF THE CORPUS OF THE ESTATE OF MR. E.F. DINSHAW, IN INDIA TO THE EXTENT TO WHIC H THE SAME CONSISTS OF IMMOVABLE PROPERTIES AND ACCORDINGLY TO THE EXT ENT THE SOURCE OF THE RECEIPTS WERE ADVANCES, THE SAME OUGHT TO BE EX CLUDED IN COMPUTING THE QUANTUM BY THE APPELLANT IN TERMS OF THE INDENTURE. 4. BEFORE US, MR. S.E. DASTUR, LEARNED SR. ADVOCATE, A PPEARED ON BEHALF OF THE ASSESSEE. MR. SUBACHAN RAM, DEPARTMENTAL REP RESENTATIVE, APPEARED ON BEHALF OF THE REVENUE. 5. BOTH THE PARTIES SUBMIT BEFORE THE BENCH THAT GROUN DS NO.2 AND 3 OF REVENUES APPEAL STAND COVERED BY THE DECISION OF T HIS BENCH OF THE TRIBUNAL IN ITA NO.4573 AND 4424/MUM./2008, ORDER DATED 15 TH JULY 2011, IN ASSESSEES OWN CASE. ON A QUERY FROM THE BENCH, BOT H THE PARTIES SUBMITTED THAT THE FACTS, THE ORDER OF THE ASSESSING OFFICER, THE ORDER OF THE COMMISSIONER (APPEALS) AS WELL AS THE ARGUMENTS OF BOTH THE PARTIES ARE IDENTICAL IN BOTH THE YEARS AND, HENCE, THE SAME DE CISION SHOULD BE FOLLOWED. IT WAS SUBMITTED THAT THE FINDINGS OF THE FIRST APP ELLATE AUTHORITY ON THIS ISSUE WAS UPHELD BY THE TRIBUNAL. LEARNED SR. ADVOC ATE FOR THE ASSESSEE, SUBMITS THAT ONCE THE TRIBUNAL ORDER IS FOLLOWED, T HE ASSESSEES APPEAL NEED NOT BE ADJUDICATED AS IT WOULD BE AN ACADEMIC EXERC ISE. IN VIEW OF THE MUTUALLY AGREED POSITION, WE RESPECTFULLY FOLLOWING THE ORDER 15 TH JULY 2001, PASSED BY A CO-ORDINATE BENCH OF THIS TRIBUNAL IN A SSESSEES OWN CASE CITED SUPRA AND DISMISS GROUNDS NO.2 AND 3 RAISED BY THE REVENUE. 6. KEEPING IN VIEW OUR DECISION IN REVENUES APPEAL VI DE GROUNDS NO.2 AND 3 ABOVE AND THE SUBMISSION OF THE LD. SR. COUNS EL, WE ALSO DISMISS GROUNDS NO.1 AND 2 RAISED BY THE ASSESSEE. MR. NUSLI N. WADIA ITA NO.3119/MUM./2010 ITA NO.3122/MUM./2010 4 7. THIS LEAVES US WITH GROUND NO.4 OF THE REVENUES AP PEAL. THE ISSUE IN QUESTION IS, WHETHER THE ASSESSEES INCOME ON SALE OF SHARES AND UNITS OF MUTUAL FUNDS, IS TO BE TAXED UNDER THE HEAD CAPITAL GAINS OR UNDER THE HEAD INCOME FROM BUSINESS . THE FACTS ARE BROUGHT OUT AT PARAS-66 AND 68 / PAGES-41 AND 42 OF THE COMMISSIONER (APPEALS)S O RDER WHICH IS EXTRACTED BELOW:- 66. THE FACTS OF THE CASE ARE AS FOLLOWS:- DURING THE YEAR UNDER CONSIDERATION, THE APPELLANT OFFERED THE FOLLOWING INCOME UNDER THE HEAD CAPITAL GAINS IN HI S RETURN OF INCOME. S.NO. PARTICULARS OF INCOME AMOUNT ( ` ) 1. LONG TERM CAPITAL GAIN ON UNITS OF MUTUAL FUNDS EXEMPT U/S 10(38) 45,54,272 2. SHORT TERM CAPITAL GAIN ON SHARES U/S 111A 36,72 ,682 3. SHORT TERM CAPITAL GAIN IN SHARES THROUGH PMS U/S 111A 58,91,164 4. SHORT TERM CAPITAL GAIN IN UNITS IN MUTUAL FUNDS U/S 111A 115,63,269 5. SHORT TERM CAPITAL GAIN ON SHARES & MUTUAL FUNDS U/S OTHER THAN SEC. 11A 59,77,686 LESS: B/F SHORT TERM CAPITAL LOSS SET-OFF 45,17,23 6 BALANCE 14,60,450 6. SHORT TERM CAPITAL GAIN IN DEBENTURES 1,500 THE APPELLANT IS AN INDUSTRIALIST OF REPUTE AND IS THE CHAIRMAN OF THE BOMBAY DYEING & MFG. CO. LTD. BESIDES BEING THE CHA IRMAN OF BRITANNIA INDUSTRIES LTD. AND ALSO HOLDS DIRECTORSH IPS IN VARIOUS GROUP COMPANIES AND OTHER REPUTED COMPANIES. HIS TIME IS DEVOTED TO LOOK AFTER THE VARIOUS BUSINESS INTERESTS IN THESE COMPA NIES AND ATTENDING TO BOARD MEETINGS OF COMPANIES, ANNUAL GENERAL MEET INGS, ETC. DURING THE YEAR THE APPELLANT FROM TIME TO TIME HAD SURPLU S FUNDS AND AFTER MEETING HIS EXPENSES HE DEPLOYED THE SAME IN MAKING INVESTMENTS DURING THE PREVIOUS YEAR UNDER ASSESSMENT IN SHARES , UNITS, ETC., INCLUDING UNDER PMS SCHEMES. APPELLANT HAS MADE INVESTMENTS IN VARIOUS SHARES ON 11 OCCASIONS DURING THE YEAR. HE HAD ALSO APPLIED IN INITIAL PUB LIC OFFERINGS OF COMPANIES DURING THE YEAR. APPELLANT HAS TRANSACTED IN SALES OF MR. NUSLI N. WADIA ITA NO.3119/MUM./2010 ITA NO.3122/MUM./2010 5 INVESTMENTS ON 8 OCCASIONS DURING THE YEAR IN SHARE S OF 11 COMPANIES AGAINST A TOTAL OF 55 COMPANIES IN WHOSE SHARES INV ESTMENT WAS MADE DURING THE YEAR. THE PERCENTAGE OF SHARES SOLD (AT COST) TO SHARES PURCHASED (AT COST) DURING THE YEAR WAS AT 13.33%. 67. AS REGARDS INVESTMENT IN MUTUAL FUND UNITS, THE APPELLANT HAD MADE INVESTMENTS IN BASICALLY 2 CATEGORIES OF MUTUA L FUND UNITS I.E., EQUITY ORIENTED AND LIQUID NATURE OF FUNDS. 68. THE APPELLANT DURING THE YEAR ALSO INVESTED ` 5 CRORES EACH IN 3 PMS SCHEMES, OF DSP MERILL LYNCH, HDFC AND KOTAK SE CURITIES, WITH THE OBJECTIVE OF RETURN BY WAY OF DIVIDEND, CAPITAL GROWTH / APPRECIATION. ALL THE SAID 3 SCHEMES ARE DISCRETIO NARY I.E., TO SAY THAT THE APPELLANT HAS NOT WITHDRAWN ANY FUNDS FROM THE SAID SCHEMES IN THE YEAR UNDER ASSESSMENT. 8. LEARNED DEPARTMENTAL REPRESENTATIVES ARGUMENT IS T HAT THE ASSESSEES INVESTMENT ARE TO BE CONSIDERED AS ADVEN TURE IN THE NATURE OF TRADE AND PROFIT FROM SALE OF SECURITIES SHOULD BE CONSIDERED AS BUSINESS INCOME ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS . HE REFERRED TO PAGE-23 OF THE ASSESSMENT ORDER AND POINTS OUT THAT THE ASSESSEE HAD PURCHASED 17 SHARES AND SOLD 11 SHARES ON HIS OWN I .E., WITHOUT REFERENCE TO PORTFOLIO MANAGERS. HE FURTHER SUBMITS THAT THROUGH DSP MERRIL LYNCH FUND MANAGED PMS, SHARES WERE SOLD 47 TIMES AND THAT IN KOTAL PMS SHARES WERE SOLD 17 TIMES. HE SUBMITS THAT FREQUENCY OF THE TRA NSACTIONS, QUANTUM OF INVESTMENT, POINT OUT TO THE FACT THAT THE ASSESSEE HAS INDULGED IN TRADE AND THE PROFIT SHOULD BE ASSESSED UNDER THE HEAD INCOME FROM BUSINESS . HE RELIED ON NUMBER OF CASE LAWS. 9. LEARNED SR. COUNSEL, ON THE OTHER HAND, RELIED ON T HE FINDINGS OF THE COMMISSIONER (APPEALS) AND POINTS OUT THAT THE ASSE SSEE HAD NO BORROWINGS AND HE TRANSACTED ONLY ON EIGHT OCCASIONS DURING TH E YEAR THAT TOO IN THE SHARES OF 11 COMPANIES AS AGAINST 55 COMPANIES IN W HICH INVESTMENTS WERE MADE. IT WAS POINTED OUT THAT INVESTMENTS IN MUTUAL FUNDS ARE BASICALLY IN 2 CATEGORIES I.E., (A) EQUITY ORIENTED MUTUAL FUND AN D (B) LIQUIDATED FUNDS. HE SUBMITS THAT THE OBJECTIVES OR MOTIVE FOR INVESTING IN LIQUID FUNDS WAS ONLY, TEMPORARY PLACEMENT OF FUNDS AKIN TO PLACING THE MO NEY IN FIXED DEPOSIT FOR MR. NUSLI N. WADIA ITA NO.3119/MUM./2010 ITA NO.3122/MUM./2010 6 SHORT TENURE AND, AS SUCH, UNITS OFFERED ARE FOR MO RE OR LESS FIXED RETURNS BASED ON SHORT TERM INTEREST RATES, TILL SUCH TIME A PROPER PORTFOLIO OF INVESTMENT IS IDENTIFIED. HIS SUBMISSIONS ARE THAT THE ASSESSING OFFICER HAS COMMITTED A MISTAKE IN CONSIDERING THE TRANSACTIONS IN THE LIQUID FUNDS AS PART OF THE REDEMPTIONS. HE SUBMITS THAT ONLY 11 RE DEMPTIONS ARE OF EQUITY FUNDS AND OUT OF THESE 11, TWO ARE LONG TERM FUNDS. HE SUBMITS THAT THERE IS NO PROOF OF THE ASSESSEE REGULARLY DEALING IN UNITS OF MUTUAL FUNDS. REFERRING TO THE LARGE NUMBER OF PURCHASES MADE BY THE ASSESS EE, HE SUBMITS THAT THIS CLEARLY INDICATES THE INTENTION OF THE ASSESSEE TO PARK HIS FUNDS IN SHARES FOR EARNING DIVIDEND AND FOR CAPITAL APPRECIATION THERE FROM. HE SUBMITS THAT LARGE AMOUNTS WERE INVESTED AND THERE WAS NO TURNOV ER AT ALL. HE RELIED ON NUMBER OF CASE LAWS AND DISTINGUISHED CASE LAWS REL IED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. 10. RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND ON PERUSAL OF THE PAP ERS ON RECORD, AS WELL AS THE CASE LAWS CITED BEFORE US, WE FIND THAT THIS IS A FACTUAL MATTER AND REFERENCE TO NUMEROUS CASE LAWS BY BOTH THE PARTIES IS NOT REQUIRED. THIS IS A CASE WHERE THE ASSESSEE HAS INVESTED LARGE AMOUNT O F MONEY BOTH IN SHARES, AS WELL AS IN MUTUAL FUNDS. THE INVESTMENTS WERE MADE MOSTLY THROUGH PORTFOLIO MANAGERS. THE FIRST APPELLATE AUT HORITYS FINDING OF FACT IS THAT, THE ASSESSEE HAS TRANSACTED SALES ON HIS OWN, ONLY ON EIGHT OCCASIONS DURING THE YEAR. IN CONTRAST, THE ASSESSEE HAD INVE STED IN 55 COMPANIES DURING THE YEAR. THESE FIGURES, BY NO STRETCH OF IM AGINATION, WOULD LEAD US TO A CONCLUSION THAT THE ASSESSEE IS NOT THE INVESTOR BUT A TRADER IN SHARES. THERE IS HARDLY ANY TURNOVER DONE BY THE ASSESSEE I N THESE SHARES. THE OTHER PERTINENT POINT TO BE NOTED IS THAT THE ASSESSEE HA S BEEN DISCLOSING THIS ITEM AS INVESTMENTS IN THE ACCOUNTS YEAR-AFTER-YEAR. AND THIS HAS BEEN ACCEPTED BY THE REVENUE. IT IS NOT A CASE OF THE REVENUE THA T THE ASSESSEE IS VALUING THE INVESTMENTS AT COST OR MARKET PRICE WHICHEVER I S LOWER. THE ASSESSEE HAS NOT BORROWED ANY FUNDS FOR MAKING THESE INVESTMENTS . MOST OF THE INVESTMENTS WERE MADE THROUGH THREE PORTFOLIO MANAG EMENT SCHEMES. THE MR. NUSLI N. WADIA ITA NO.3119/MUM./2010 ITA NO.3122/MUM./2010 7 TRIBUNAL IN ARA TRADING AND INVESTMENT P. LTD., ITA NO.499/PN./2008, PUNE BENCH B, ORDER DATED 31 ST AUGUST 2009, HELD AS FOLLOWS:- 25. IN THE BACKDROP OF ABOVE DECISIONS, THE FACTS O F THE CASE INDICATE THAT IT WAS AN ACTIVITY OF WEALTH MAXIMIZA TION RATHER THAN PROFIT MAXIMIZATION. TO ARRIVE AT THE RIGHT CONCLUS ION IN SUCH TYPE OF CASES AND CONSIDERING THE PECULIARITY OF THE FACTS WE HAVE TO TAKE SHELTER OF A LANDMARK JUDGMENT IN THE CASE OF H. HO LCK LARSEN, 160 ITR 67 (SC) (SUPRA) WHEREIN THE OBSERVATION WAS THA T THE HIGH COURT MADE A MISTAKE IN OBSERVING WHETHER TRANSACTION OF SALE AND PURCHASE OF SHARES WERE TRADING ACTIVITY OR WHETHER THOSE WE RE IN THE NATURE OF INVESTMENT. THE COURT HAS SAID THAT SUCH A QUESTION WAS NOT QUESTION OF LAW BUT MIXED QUESTION OF LAW AND FACT. THEREFOR E, ON DUE CONSIDERATION OF THE RELEVANT FACTS, THE RESULT WAS THAT THE ASSESSEE WAS A PRUDENT INVESTOR AND NOT OF A PLUNGER IN THE WATERS OF TRADE. THE INTENTION OF THE ASSESSEE WAS CONSIDERED AS THAT OF NURSING OF THE INVESTMENT. 26. BEFORE WE CONCLUDE SIGNIFICANT FACT DOES NEED S OME DELIBERATION AND THAT IS ABOUT THE METHOD OF VALUATION OF STOCK OF SHARES REFLECTED IN THE BALANCE SHEET. THE ADMITTED POSITION IS THAT THE ASSESSEE HAS NOT ADOPTED THE METHOD OF VALUATION AS BEING GENERA LLY ADOPTED BY A BUSINESS CONCERN. A BUSINESS ASSET IS VALUED AT THE COST OR MARKET PRICE WHICHEVER IS LESS BUT IN THE APPLICANT CASE I T WAS NOT SO. THE APPELLANT HAD NOT ADOPTED THIS PREVALENT METHOD. RA THER THE ASSESSEE HAD OPTED TO VALUE THE SHARES HOLDING AT COST PRICE ONLY. SINCE IT WAS NOT, THEN THE LAW SUBSCRIBED TO TREAT SUCH AN ASSET AS AN INVESTMENT, GENERALLY BEING VALUED BY AN INVESTOR. 27. TO CONCLUDE, THE CIRCUMSTANCES AND THE PLETHORA OF PRCEDENTS UNMISTAKABLY POINTS OUT THAT THE ASSESSEE WAS NOT D IRECTLY INVOLVED IN THE TRADING ACTIVITY. THEREFORE, ITS HOLDING WAS NO THING BUT AN INVESTMENT. WHAT IS DECISIVE IS THE CONDUCT AND THE INTENTION OF AN INVESTOR WHICH HAS BEEN ESTABLISHED IN THE PRESENT APPEAL THAT THE APPELLANT HAD SIMPLY ACTED IN THE FASHION TO MAXIMI ZE THE VALUE OF ITS WEALTH HOLDING, IN THE SHAPE OF SHARES. SUCH AN ACT IVITY CANNOT BE HELD A PROFIT MAKING ACTIVITY OF A BUSINESS CONCERN BUT SAFELY IT CAN BE HOLD AS A PROFIT SOCKING ACTIVITY OF AN INVESTOR. RESULT ANTLY, OUR VIEW GOES IN FAVOUR OF THE ASSESSEE, THUS THE GROUNDS ARE ALLOWE D. 11. IN THE INSTANT CASE, FROM THE FACTS, IT IS CLEAR TH AT THE ASSESSEE, AT THE TIME OF PURCHASE OF SHARES, HAD NO INTENTION OF DOI NG BUSINESS. THE INTENTION, AT THE TIME OF PURCHASE OF SHARES, IS TH AT OF AN INVESTOR. NO BORROWED FUNDS WERE USED AND THERE WAS NO SUBSEQUEN T PURCHASE AND SALE OF SHARES. THUS, ON THESE FACTUAL MATRIX, WE UPHOLD THE FINDINGS OF THE COMMISSIONER (APPEALS) THAT THE INCOME IN QUESTION SHOULD BE ASSESSED MR. NUSLI N. WADIA ITA NO.3119/MUM./2010 ITA NO.3122/MUM./2010 8 UNDER THE HEAD CAPITAL GAINS AND NOT UNDER THE HEAD INCOME FROM BUSINESS . THUS, THIS GROUND RAISED BY THE REVENUE IS DISMIS SED. 12. IN THE RESULT, REVENUES APPEAL IS DISMISSED. 13. TO SUM UP, IN THE RESULT, APPEAL BY THE ASSESSEE AS WELL AS APPEAL BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.8.2011 SD/- D.K. AGARWAL JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 30.8.2011 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, F BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI MR. NUSLI N. WADIA ITA NO.3119/MUM./2010 ITA NO.3122/MUM./2010 9 DATE INITIAL 1. DRAFT DICTATED ON 9.7.2011 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 10.7.2011 TO 25.8.2011 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 26.8.2011 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 26.8.2011 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 26.8.2011 SR.PS/PS 6. DATE OF PRONOUNCEMENT 30.8.2011 SR.PS 7. FILE SENT TO THE BENCH CLERK 30.8.2011 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER