SAATHI BUILDERS P. LTD, MUMBAI V. ITO 9(3)(1), MUMBAI

ITA 3240/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49137 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 24-03-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 15-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: PARAS S SAVLA; DR SHIVRAM
• Keywords: Capital asset; Business income
• Section: 2(14); 234B; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI D. MANMOHAN, V.P. AND SHRI R.K. PANDA, A.M. ITA NO. 3240/MUM /2009 ASSESSMENT YEAR : 2006-07 M/S SAATHI BUILDERS PVT. LTD., 23, SANGEETA, TAGONE ROAD, SANTACRUZ (WEST), MUMBAI-400 054. P.A. NO. AADCS 0341J VS. INCOME TAX OFFICER 9(3)(1), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : DR. SHIVRAM & MR. PARAS S. SAVLA RESPONDENT BY : MS. ASHIMA GUPTA O R D E R PER R.K. PANDA. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 31.3.2009 OF THE CIT(A)- IX, MUMBAI RELATING TO ASS ESSMENT YEAR 2006-07. 2. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNA L FOR WANT OF PROSECUTION. SUBSEQUENTLY, THE TRIBUNAL VIDE ITS O RDER DATED 3 RD SEPTEMBER, 2010 RECALLED ITS EARLIER ORDER. HENCE, THIS IS A R ECALLED MATTER. 3. IN GROUNDS OF APPEAL NO. 1 TO 4, THE ASSESSEE HA S CHALLENGED THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF ` 48,72,230/-MADE BY THE A.O. BY DISALLOWING THE CLAIM OF LONG TERM CAPITAL GAIN. 3.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSE E COMPANY IS CARRYING ON THE BUSINESS AS BUILDERS AND DEVELOPERS. IN THE YE AR 1995, THE ASSESSEE HAD ENTERED INTO AN MOU WITH MR. CREADO & OTHERS, THE A SSIGNORS, FOR THE ACQUISITION OF THEIR RIGHT, TITLE, INTEREST ETC. BE ING SHARE IN THE PROPERTY SITUATED AT JUHU BEARING SURVEY NO. 39, HISSA NO. 3 , NEW CTS NO. 511B & ITA 3240 /M/09, SAATHI BU ILDERS PVT. LTD. 2 511C. AS PER THE MOU THERE WERE ENCUMBRANCES IN TH E SAID PROPERTY AND ALSO MULTIPLE LITIGATION BY VARIOUS PARTIES, WHICH ARE ALSO PENDING. IN THE MEANTIME, THE ASSESSEE ENTERED INTO A PARTNERSHIP I N THE NAME AND STYLE OF M/S SAMARTH SIDDIVINAYAK DEVELOPERS VIDE PARTNERSHI P DATED 6.6.2005. SUBSEQUENTLY, ALL THE LITIGANTS ENTERED INTO A CONS ENT TERM DTD. 11.7.05 PASSED BY THE HONBLE BOMBAY HIGH COURT IN 00CJ SUI T NO. 2270 OF 1992 AND ACCORDINGLY, THE DISPUTE WAS SETTLED. IN ALL, THER E ARE 10 DEFENDANTS WHO ARE PARTY TO THE CONSENT TERM (THE SAID PARTNERSHIP FIR M AS DEFENDANT NO. 10). IN VIEW OF THE CONSENT TERM, THE ASSESSEE HAS TRANSFER RED THE CONSTRUCTION PROJECT (W-I-P) FOR A CONSIDERATION I.E. ` 3,11,12,500/- AS CAPITAL CONTRIBUTION IN THE SAID PARTNERSHIP (CLAUSE 4 OF THE PARTNERS HIP DEED). THE ASSESSEES SHARE OF PROFIT IN THE SAID PARTNERSHIP FIRM IS 38% . 3.2 HOWEVER, ON PERUSAL OF THE P&L ACCOUNT, THE A.O . NOTED THAT THE ASSESSEE HAS CREDITED ONLY AN AMOUNT OF ` 48.72 LAKHS AS CONSIDERATION TOWARDS TRANSFER OF PROJECT. IN THE COMPUTATION OF TOTAL INCOME, THE SAME IS CONSIDERED UNDER THE HEAD CAPITAL GAIN AND ACCORD INGLY THE ASSESSEE CLAIMED LONG TERM CAPITAL LOSS OF ` 1,92,40,449/- THE WORKING OF THE COMPUTATION OF TOTAL INCOME AND CAPITAL GAIN CLAIME D BY THE ASSESSEE IS AS UNDER:- BUSINESS & PROFESSION: AS PER PROFIT & LOSS ACCOUNT - ` 39,10,250 LESS: INCOME CONSIDERED SEPARATELY GAIN ON TRANSFER OF PROJECT - ` 48,72,231/- (-) ` 9,61,981/- ADD: DISALLOWANCE/CONSIDERED SEPARATELY: DISALLOWED U/S 40(A)(IA) - ` 33,672/- (-) ` 9,28,309 BOOK PROFIT AS PER COMPANIES ACT - ` 39,10,250 LONG TERM CAPITAL GAIN: ITA 3240 /M/09, SAATHI BU ILDERS PVT. LTD. 3 SR.NO. PARTICULARS SALE DATE COST DATE SALE VALUE COST VALUE INDEXED COST INDEX GAIN BOOK GAIN 1 WORK-IN PROGRESS 08-06-05 1994-95 3,11,12,500 2,62,40,269 5,03,52,949 497/259 -19240449 48,72,231 3.2 THE A.O. ASKED THE ASSESSEE TO EXPLAIN THE CLAI M OF LONG TERM CAPITAL LOSS ON TRANSFER OF RIGHT IN THE IMMOVABLE PROPERTY AS CAPITAL ASSET IN THE PARTNERSHIP. REJECTING THE VARIOUS EXPLANATIONS GI VEN BY THE ASSESSEE AND DISTINGUISHING THE DECISIONS CITED BEFORE HIM, THE A.O. DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT ` 48,72,230/- AFTER DEDUCTING THE COST OF SALE OF ` 2,62,40,269/- FROM THE SALE CONSIDERATION OF ` 3,11,12,500/-. WHILE DOING SO, THE A.O. NOTED THAT THE ASSESSEE IS CARRYING ON THE BUSINESS AS BUILDERS AND DEVELOPERS AND FOLLOWS THE PROJECT COMPLETION METH OD OF ACCOUNTING. THE AUDITORS IN THEIR REPORT IN FORM 3CD HAS ALSO REPOR TED THAT THE ASSESSEE IS A BUILDER AND DEVELOPER. THE ASSESSEE HAS TREATED TH E IMPUGNED PROPERTY IN QUESTION NOT AS AN INVESTMENT, BUT THE SAME WAS HEL D AS STOCK-IN-TRADE SINCE THE PROPERTY WAS MADE A PART OF THE PROJECT BEING D EVELOPED BY THE ASSESSEE. FURTHER, THE EXPENDITURE INCURRED, IN WHATSOEVER NA TURE, FROM A.Y. 1995-96 HAS BEEN MADE A PART OF THE WORK-IN-PROGRESS AND TH E CLOSING BALANCE FOR THE F.Y. 2004-05 IS SHOWN AT ` 2,75,04,269/-. THE PROPERTY WAS PURCHASED BY THE ASSESSEE WITH A VIEW TO DEVELOP IT AND SALE IT AND NOT TO HOLD IT AS CAPITAL ASSET FOR INVESTMENT. FURTHER, THE PROPERTY WAS TRA NSFERRED TO A FIRM, IN WHICH THE ASSESSEE IS A PARTNER SHARING 38% PROFIT/LOSS. THE SAID FIRM IS ALSO ENGAGED IN THE SAME LINE OF BUSINESS AS THAT OF THE ASSESSEE I.E. BUILDER AND DEVELOPER. THE INTENTION OF THE FIRM INCLUDING THAT OF THE ASSESSEE BEING A PARTNER, TILL DATE, IS TO DEVELOP THE PROPERTY AND NOT TO HOLD THE SAME AS AN INVESTMENT. RELYING ON THE DECISION OF HONBLE PUN JAB & HARYANA HIGH COURT IN THE CASE OF SHRI HARBANS SINGH VS. CIT, REPORTED IN 132 ITR 77 AND THE DECISIONS OF THE HONBLE SUPREME COURT IN THE CASE OF G. VENKATASWAMI NAIDU AND COMPANY VS. CIT REPORTED IN 35 ITR 594 AN D IN THE CASE OF RAJA J. RAMESHWAR RAO V. CIT REPORTED IN [1961] 42 ITR 179 (SC), HE TREATED THE ENTIRE SALE CONSIDERATION AS BUSINESS RECEIPT. ITA 3240 /M/09, SAATHI BU ILDERS PVT. LTD. 4 3.3 BEFORE THE LD. CIT(A), THE ASSESSEE REITERATED THE SAME SUBMISSIONS AS MADE BEFORE THE A.O. IT WAS FURTHER SUBMITTED THAT THE ACT OF INTRODUCING THE PROPERTY INTO THE FIRM BY THE ASSESSEE WAS NOT A VO LUNTARY TRANSACTION BUT A COMPULSIVE ONE UNDER CHANGED CIRCUMSTANCES MOTIVATE D BY NECESSITY AND CONSEQUENTLY THE REAL OBJECT OF INJECTING THE PROPE RTY AS PARTNERS CAPITAL IN THE FIRM WAS TO SHUN A RESULTANT LOSS SITUATION. IT WAS SUBMITTED THAT THE GAINS ARISING FROM INTRODUCTION OF THE PROPERTY IN THE FIRM IS ASSESSABLE AS AN ACCRETION TO CAPITAL AND NOT BUSINESS INCOME. THE PROPERTY ALWAYS REMAINED AS AN INVESTMENT IN THE HANDS OF THE ASSESSEE AND C OULD NOT BE CONVERTED INTO A BUSINESS OPPORTUNITY IN CONNECTION WITH THE ASSESSEES REGULAR BUSINESS OF PROPERTY DEVELOPMENT AND CONSTRUCTION. VARIOUS DECISIONS WERE ALSO BROUGHT TO THE NOTICE OF LD. CIT(A) TO SUBSTAN TIATE ITS CASE. 3.4 HOWEVER, THE LD. CIT(A) WAS ALSO NOT CONVINCED BY THE EXPLANATION GIVEN BY THE ASSESSEE AND UPHELD THE ACTION OF THE A.O. 3.5 AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), TH E ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SAME SUBMISSIONS AS MADE BEFORE THE A.O. AND LD. CIT(A). HE FURTHER SUB MITTED THAT THE ASSET TRANSFERRED WAS RIGHT IN THE AGREEMENT DTD. 6.2.199 5 WHICH IS A CAPITAL ASSET TRANSFERRED TO THE FIRM ON 8.6.2005. REFERRING TO THE MOU DTD. 6.2.1995, COPY OF WHICH IS PLACED AT PAGE 43 TO 58 OF THE PAP ER BOOK, HE DREW THE ATTENTION OF THE BENCH TO PARA 29 AT PAGE 55 AND S UBMITTED THAT THE POSSESSION WAS NEVER ACQUIRED BY THE ASSESSEE. REF ERRING TO THE PROVISIONS OF SECTION 2(14) OF THE ACT WHICH DEFINES THE TERM CAP ITAL ASSET AS PROPERTY OF ANY KIND HELD BY THE ASSESSEE...., HE SUBMITTED TH AT THE WORD PROPERTY USED HAS A WIDE MEANING AND DOES NOT MEAN MERELY A CORPO RAL, TANGIBLE OR PHYSICAL PROPERTY BUT RIGHT, TITLE OR INTEREST IN P ROPERTY AS WELL. IT INCLUDES EVEN LESSER INTEREST THAN FULL OWNERSHIP, SUCH AS A LEASEHOLD INTEREST OR TENANCY RIGHTS AND A RIGHT OF ENJOYMENT AND EXPLOIT ATION. REFERRING TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F A.R. KRISHNAMURTHY & ITA 3240 /M/09, SAATHI BU ILDERS PVT. LTD. 5 ANR. V. CIT REPORTED IN (1989) 176 ITR 417 (SC), HE SUBMITTED THAT IT HAS BEEN HELD BY THE HONBLE COURT THAT RIGHT OF EXCAVA TING OF CLAY WAS ALSO A TRANSFERABLE PROPERTY LIABLE TO CAPITAL GAIN TAX. HE SUBMITTED THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. TATA SERVI CES LTD. (1980) 122 ITR 594 (BOM) HAS HELD THAT RIGHT TO ACQUIRE A PROPERTY UNDER A CONTRACT IS A CAPITAL ASSET AND THE PROFIT ARISING FROM THE ASSIG NMENT OF SUCH RIGHT IS LIABLE FOR CAPITAL GAIN TAX. SIMILARLY, THE HONBLE BOMBA Y HIGH COURT IN THE CASE OF CIT VS. VIJAY FLEXIBLE CONTAINERS (1990) 186 ITR 69 3 (BOM) HAS HELD THAT THE RIGHT TO OBTAIN CONVEYANCE OF IMMOVABLE PROPERTY FA LLS WITHIN THE EXPRESSION PROPERTY OF ANY KIND USED IN SECTION 2(14) AND IS CONSEQUENTLY A CAPITAL ASSET. SINCE THE RIGHT WAS HELD FOR AROUND 10 YEARS , IT IS A LONG TERM CAPITAL ASSET AND THUS INDEXATION BENEFIT IS AVAILABLE AS P ER SECTION 48. HE SUBMITTED THAT THE IMPUGNED TRANSACTION IS NOT IN ANY MANNER COVERED UNDER THE AMBIT OF SECTION 28 TO BE TERMED AS A BUSINESS TRANSACTIO N. ACCORDING TO THE LD. COUNSEL FOR THE ASSESSEE, IT IS A RIGHT IN AN UPC OMING IMMOVABLE PROPERTY WHICH IS BEING TRANSFERRED. RELIYING ON A COUPLE OF DECISIONS INCLUDING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF KE DERNATH JUTE MANUFACTURING CO. LTD. VS. CIT REPORTED IN (1971) 8 2 ITR 363 AND IN THE CASE OF CIT VS. BOKARO STEEL LTD. (1999) 236 ITR 315 (SC ) HE SUBMITTED THAT THE ENTRIES IN THE BOOKS OF ACCOUNT CANNOT DECIDE WHETH ER A RECEIPT IS TAXABLE OR NOT OR WHETHER EXPENSES ARE ALLOWABLE AS DEDUCTION OR NOT. COURTS ARE COMPELLED TO GO BY THE TRUE NATURE OF THE RECEIPTS AND NOT TO GO BY THE ENTRY IN THE BOOKS OF ACCOUNT. HE SUBMITTED THAT THE VAR IOUS DECISIONS RELIED ON BY THE A.O. AND THE LD. CIT(A) ARE DISTINGUISHABLE ON FACTS AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 5. THE LD. D.R., ON THE OTHER HAND, SUPPORTED THE O RDER OF THE LD. CIT(A). REFERRING TO THE COPY OF THE PARTNERSHIP DEED PLACE D AT PAGE 160 TO 176 OF THE PAPER BOOK, HE DREW THE ATTENTION OF THE BENCH TO P AGE 161 AND SUBMITTED THAT SHRI MANISH VALLABH THAKKAR WHO IS DIRECTOR OF THE ASSESSEE COMPANY IS ALSO A PARTNER IN THE FIRM M/S GANESHALAY DEVELOPER S WHICH ALONG WITH THE ASSESSEE COMPANY AND 2 OTHERS ARE PARTNERS IN THE F IRM TO WHICH THE PROPERTY HAS BEEN TRANSFERRED. HE SUBMITTED THAT ALL THE TIM E FROM THE DATE OF ITA 3240 /M/09, SAATHI BU ILDERS PVT. LTD. 6 PURCHASE TILL THE DATE OF TRANSFER, THE INTENTION W AS TO DEVELOP THE PROPERTY. THE DEVELOPMENT EXPENDITURE ARE TREATED AS PART OF THE WORK-IN-PROGRESS. THEREFORE, ANY SURPLUS ON TRANSFER OF THE PROPERTY HAS TO BE TREATED AS BUSINESS INCOME AS AGAINST CAPITAL GAIN TREATED BY THE ASSESSEE. SINCE THE ASSESSEE IS IN THE LINE OF BUSINESS AS BUILDER AND DEVELOPER AND THE PROPERTY WAS TRANSFERRED TO A FIRM ENGAGED IN SIMILAR BUSINE SS ACTIVITY WHERE THE ASSESSEE COMPANY IS ALSO A PARTNER SHARING 38% PROF IT AND LOSS, THE INCOME HAS TO BE TREATED AS BUSINESS INCOME ONLY. HE ACCOR DINGLY SUBMITTED THAT THE ORDER OF THE LD. CIT(A) SHOULD BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE A.O. AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIO US DECISIONS CITED BEFORE US. WE FIND THE ASSESSEE, IN THE INSTANT CASE, IS C ARRYING ON THE BUSINESS AS BUILDERS AND DEVELOPERS AND FOLLOWED THE PROJECT CO MPLETION METHOD OF ACCOUNTING. THE ASSESSEE PURCHASED THE IMPUGNED PRO PERTY WITH THE INTENTION TO DEVELOP AND SALE. WE FIND FROM THE SUB MISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE PROPERTY WAS PURC HASED SUBJECT TO VARIOUS LEGAL PROCEEDINGS, LITIGATION AND ENCUMBRANCES FOR A CONSIDERATION OF ` 2,64,64,000/-. WHEN A PROPERTY ESPECIALLY LAND IS PURCHASED BY AN ASSESSEE WHO IS IN THE LINE OF BUSINESS AS DEVELOPER AND BUI LDER AND WHEN SUCH LAND IS SUBJECT TO MULTIPLE LITIGATION BY VARIOUS PARTIES, THE PURCHASE OF SUCH LAND, IN OUR OPINION, IS FOR THE PURPOSE OF BUSINESS AND NOT FOR THE PURPOSE OF INVESTMENT. A BUSINESSMAN CAN ONLY TAKE THE RISK A ND NOT AN INVESTOR SINCE THE INVESTOR WILL ALWAYS TRY FOR SAFETY OF HIS INVE STMENT. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE PURCH ASED THE PROPERTY WITH MULTIPLE LITIGATION AND ENCUMBRANCES THE SAME WAS F OR THE PURPOSE OF BUSINESS ONLY. WE FIND THE EXPENDITURE INCURRED FOR DEVELOPING THE SAME IN THE PRECEDING PREVIOUS YEARS HAVE BEEN TREATED BY T HE ASSESSEE AS PART OF WORK-IN-PROGRESS. FURTHER, THE PROPERTY WAS TRANSFE RRED TO A FIRM IN WHICH THE ASSESSEE IS A PARTNER SHARING 38% PROFIT/LOSS. NOT ONLY THIS, THE DIRECTOR OF THE COMPANY MR. MANISH VALLABH THAKKAR IS A PARTNER IN THE FIRM M/S GANESHALAYA DEVELOPERS, WHICH IS ALSO A PARTNER IN M/S SAMARTH ITA 3240 /M/09, SAATHI BU ILDERS PVT. LTD. 7 SIDDIVINAYAK DEVELOPERS TO WHICH THE ASSESSEE COMPA NY HAS TRANSFERRED THE PROPERTY AS ITS INITIAL CAPITAL AT ` 3,11,12,500/-. 6.1 WE FIND THE HONBLE SUPREME COURT IN THE CASE O F RAJA J. RAMESHSWAR RAO VS. CIT REPORTED IN (1961) 42 ITR 179 (SC) HAS HELD AS UNDER:- (SHORT NOTES) EVEN A SINGLE VENTURE MAY BE REGARDED AS IN THE NAT URE OF TRADE OR BUSINESS. WHEN A PERSON ACQUIRES LAND WITH A VIEW TO SELLING IT LATER AFTER DEVELOPING IT, HE IS CARRYING ON AN ACT IVITY RESULTING IN PROFIT, AND THE ACTIVITY CAN ONLY BE DESCRIBED AS A BUSINESS VENTURE. WHERE THE PERSON GOES FURTHER AND DIVIDES THE LAND INTO PLOTS , DEVELOP THE AREA TO MAKE IT MORE ATTRACTIVE AND SELLS THE LAND NOT AS A SINGLE UNIT AND AS HE BOUGHT IT, BUT IN PARCELS, HE IS DEALING WITH LAND AS HIS STOCK-IN-TRADE; HE IS CARR YING ON BUSINESS AND MAKING A PROFIT. 6.1 THE VARIOUS DECISIONS CITED BY THE LD. COUNSEL FOR THE ASSESSEE ARE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. SINCE THE ASSESSEE IS ENGAGED IN THE BUSINESS AS A BUILDER AN D DEVELOPER AND SINCE THE LAND WAS PURCHASED WITH A VIEW TO DEVELOP IT AND SI NCE VARIOUS EXPENSES INCURRED FOR DEVELOPING THE LAND ARE TREATED AS PAR T OF WORK-IN-PROGRESS AND SINCE THE PROPERTY HAS BEEN TRANSFERRED TO A FIRM H AVING SIMILAR LINE OF BUSINESS AND SINCE DIRECTOR OF THE ASSESSEE COMPANY IS ALSO A PARTNER IN M/S GANESHALAYA DEVELOPERS, WHICH IN TURN IS A PARTNER IN M/S SAMARTH SIDDIVINAYAK DEVELOPERS ALONG WITH THE ASSESSEE COM PANY & 2 OTHERS, THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT TH E TRANSFER OF WORK-IN- PROGRESS TO THE PARTNERSHIP FIRM CANNOT BE TREATED AS A TRANSFER WITHIN THE MEANING OF SECTION 2(14) OF THE ACT. THE ENTIRE SA LE CONSIDERATION, IN OUR OPINION, HAS TO BE TREATED AS BUSINESS RECEIPTS. W E, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) TREATI NG THE INCOME AS BUSINESS INCOME AND ACCORDINGLY UPHOLD THE SAME. THE GROUND S OF APPEAL NO. 1 TO 4 BY THE ASSESSEE ARE ACCORDINGLY DISMISSED. 7. GROUND NO. 5 BY THE ASSESSEE RELATES TO CHARGING OF INTEREST U/S 234B AND 234C AT ` 2,85,570/- AND ` 16,619/- RESPECTIVELY. ITA 3240 /M/09, SAATHI BU ILDERS PVT. LTD. 8 7.1 AFTER HEARING BOTH THE SIDES, WE ARE OF THE CON SIDERED OPINION THAT CHARGING OF INTEREST U/S 234B AND 234C ARE MANDATOR Y AND CONSEQUENTIAL IN NATURE. ACCORDINGLY, THIS GROUND BY THE ASSESSEE IS DISMISSED. 8. GROUNDS OF APPEAL NO. 6 & 7 BEING GENERAL IN NAT URE ARE DISMISSED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED ON 15.06.2011. SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED : 15.06.2011. COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. (A) IX, MUMBAI 4. CIT IX MUMBAI 5. THE DR, E - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI R.K. ITA 3240 /M/09, SAATHI BU ILDERS PVT. LTD. 9 DATE INITIALS DRAFT DICTATED ON 9.6.11 DRAFT PLACED BEFORE THE AUTHOR 13.6.11 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER AM/JM DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM APPROVED DRAFT COMES TO THE SR. PS KEPT FOR PRONOUNCEMENT ON. FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK DATE ON WHICH FILE GOES TO THE AR DATE OF DISPATCH