I.N.Harikrishnan, CHENNAI V. CIT, CHENNAI

ITA 367/CHNY/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4439 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 06-07-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 20-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: OMKARESHWAR CHIDRA
• Assessee Lawyers: N DEVANATHAN
• Keywords: Capital asset; Set aside; Capital Gains
• Section: 271(1)(c); 143(3); 54F; 119(2)(b); 191; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH D CHENNAI (BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER A ND SHRI GEORGE MATHAN, JUDICIAL MEMBER) .. I.T.A. NO.2257/MDS/2008 & 367/MDS/2009 ASSESSMENT YEAR : 2006-07 SHRI I.N. HARI KRISHNA, 7/2, CHINNA THAMBI MUDALI STREET, CHENNAI. PAN : AAYPH7055A (APPELLANT) V. THE INCOME-TAX OFFICER, WARD-X(4), CHENNAI. (RESPONDENT) APPELLANT BY : SHRI N. DEVANATHAN RESPONDENT BY : SHRI OMKARESHWAR CHIDRA, CIT- DR O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : ITA NO. 2257/MDS/2008 IS AN APPEAL FILED BY THE ASS ESSEE AGAINST THE ORDER OF THE LEARNED CIT-IX, CHENNAI PASSED UNDER S ECTION 263 OF THE INCOME- TAX ACT, 1961 IN C. NO. 12/CIT-IX/263/08-09 DATED 1 7/21-10-2008 FOR THE ASSESSMENT YEAR 2006-07. ITA NO. 367/MDS/2009 IS A N APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT IX, CHENNAI PASSED U/S271(1)(C) OF THE ACT IN C. NO.CIT-IX/271(1)(C)/08-09 DATED 19 -01-2009 FOR THE ASSESSMENT YEAR 2006-07. ITA NO.2257/MDS/08 & 367/MDS/09 2 2. SHRI N. DEVANATHAN, ADVOCATE REPRESENTED ON BEHA LF OF THE ASSESSEE AND SHRI OMKARESHWAR CHIDRA, LEARNED CIT-DR REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LEARNED AUTHORIZED REPRE SENTATIVE THAT THE ASSESSEE IS AN INDIVIDUAL WHO HAD SOLD HIS PROPERTY BEING OF VACANT LAND BEARING PLOT NO.176 ON 11-8-2005 FOR A CONSIDERATION OF RS. 8,58,000/-. IT WAS THE SUBMISSION THAT THE ASSESSEE WAS 50% OWNER IN THE P ROPERTY SOLD. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD SUBSEQUENTLY PURCH ASED ANOTHER PROPERTY ON 5-10-2005 FOR A CONSIDERATION OF RS. 4,50,000/- AND INCLUDING THE REGISTRATION CHARGES THE COST CAME TO RS. 5,50,000/-. IT WAS TH E SUBMISSION THAT THE ASSESSEE HAD ENTERED INTO A BUILDING CONSTRUCTION A GREEMENT ON 23.6.2006 WITH ONE SHRI V. GIRI FOR THE PURPOSE OF CONSTRUCTION OF A RESIDENTIAL BUILDING ADMEASURING 1500 S.FT. ON THE LAND PURCHASED. THE ASSESSEE HAD PAID AN AMOUNT OF RS. 50,000/- N SIGNING THE SAID CONSTRUCT ION AGREEMENT AND A FURTHER AMOUNT OF RS 1,00,000/- ON 28.6.2006, AN AMOUNT OF RS. 2,00,000/- ON 24.7.2006 AND AN AMOUNT OF RS. 1,00,000/- ON 16-8-2 006 TO THE CONTRACTOR. IT WAS THE SUBMISSION THAT WHEN THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006-07 THE ASSESSEE HAD CLAIMED TH E BENEFIT OF DEDUCTION U/S. 54F OF THE ACT INSOFAR AS THE ASSESSEE HAD INVESTED THE WHOLE OF THE SALE CONSIDERATION RECEIVED ON SALE OF THE PLOT IN THE A CQUISITION OF ANOTHER PLOT OF LAND AND THE CONSTRUCTION OF A RESIDENTIAL HOUSE TH EREON. IT WAS THE SUBMISSION ITA NO.2257/MDS/08 & 367/MDS/09 3 THAT THE ASSESSMENT IN THE ASSESSEES CASE WAS COMP LETED U/S. 143(3) ON 8-5- 2008 AFTER SCRUTINIZING THE ASSESSEES BOOKS AS ALS O THE COPIES OF THE VOUCHERS AND PURCHASE AND SALE DEEDS IN RESPECT OF THE LAND. IT WAS THE SUBMISSION THAT SUBSEQUENTLY THE LEARNED CIT-IX, CHENNAI HAD ISSUED A SHOW CAUSE NOTICE U/S. 263 ON 1.9.2008 I.E. WITHIN 4 MONTHS OF THE COMPLET ION OF THE ASSESSMENT U/S. 143(3) WHERE THE LEARNED CIT WAS OF THE VIEW THAT T HE CLAIM OF DEDUCTION U/S 54F WAS PRIMA FACIE NOT IN ORDER AND THAT THE EVIDE NCES IN RELATION TO THE RESIDENTIAL BUILDING CONSTRUCTED HAVE NOT BEEN LOOK ED INTO BY THE AO AND WAS NOT ON RECORD IN THE RETURN FILED BY THE ASSESSEE. THE ASSESSEE HAD REPLIED TO THE SHOW CAUSE NOTICE WHEREIN THE ASSESSEE HAD EXPLAINE D THAT A PLOT HAD BEEN PURCHASED ON 5.10.2005 FOR RS. 5,50,000/- AND NEARL Y 4,50,000/- HAD ALSO BEEN GIVEN TO THE BUILDING CONTRACTOR FOR THE CONSTRUCTI ON OF A RESIDENTIAL HOUSE. IT WAS THE SUBMISSION THAT THE LEARNED CIT WITHOUT APPRECI ATING THE CONTENTION OF THE ASSESSEE HAD HELD THAT THE AO HAD ALLOWED THE DEDUC TION U/S. 54F WRONGLY CLAIMED BY THE ASSESSEE AS UPTO THE DATE OF FILING OF THE RETURN FOR THE ASSESSMENT YEAR 2006-07 THE ASSESSEE HAD NOT DEPOSI TED THE SALE CONSIDERATION RELATING TO THE CAPITAL GAINS IN THE NOTIFIED BANK ACCOUNT NOR SUCH SALE CONSIDERATION HAD BEEN UTILIZED FOR THE CONSTRUCTIO N OF A NEW RESIDENTIAL HOUSE WITHIN THREE YEARS FROM THE DATE OF SALE OF THE CAP ITAL ASSET BEING THE PLOT OF LAND. ITA NO.2257/MDS/08 & 367/MDS/09 4 4. IT WAS SUBMITTED BY THE LEARNED AUTHORIZED REPRE SENTATIVE THAT THE ASSESSEE HAD INVESTED IN THE PURCHASE OF THE PLOT A ND THE ASSESSEE HAD ALSO PAID NEARLY RS. 4.5 LAKHS TO THE CONTRACTOR FOR THE CONS TRUCTION OF THE RESIDENTIAL HOUSE BEFORE THE DUE DATE OF FILING THE RETURN AND CONSEQUENTLY FOR THE ASSESSMENT YEAR 2006-07 THE ASSESSEE WAS ENTITLED T O THE CLAIM OF DEDUCTION U/S. 54F. IT WAS ALSO FAIRLY AGREED BY THE LEARNED AUTHORIZED REPRESENTATIVE THAT EVEN TILL TODAY THE ASSESSEE HAS NOT BEEN ABLE TO C ONSTRUCT THE RESIDENTIAL HOUSE ON THE SAID LAND DUE TO THE REASON THAT THERE ARE D ISPUTES WITH THE CONTRACTOR. IT WAS THE SUBMISSION THAT THE PLAN FOR THE CONSTRUCTI ON OF THE RESIDENTIAL HOUSE HAS BEEN APPROVED ONLY ON 1-7-2009. IT WAS THE SUB MISSION THAT THE AO HAD IN THE COURSE OF ASSESSMENT PROCEEDINGS VERIFIED THE U TILIZATION OF THE SALE CONSIDERATION AND HAD ALLOWED THE CLAIM OF DEDUCTIO N UNDER SECTION 54F. IT WAS THE SUBMISSION THAT IT WAS BASICALLY FOR THE REASON THAT TILL THE ORDER U/S. 263 WAS PASSED BY THE LEARNED CIT THE ASSESSEE HAD NOT CONS TRUCTED THE RESIDENTIAL HOUSE ON THE PLOT PURCHASED THE CIT HAS DENIED THE ASSESSEE THE CLAIM OF DEDUCTION U/S. 54F FOR THE ASST. YEAR 2006-07. IT WAS THE SUBMISSION THAT THE LEARNED CIT HAD FALLEN INTO ERROR IN DENYING THE AS SESSEE THE DEDUCTION U/S. 54F ESPECIALLY WHEN THE ASSESSEE HAD 3 YEARS TIME FROM THE ASSESSMENT YEAR 2006- 07 TO CONSTRUCT THE RESIDENTIAL HOUSE. IT WAS THE SUBMISSION THAT THE ASSESSEE HAS MOVED AN APPLICATION BEFORE THE CBDT UNDER SECT ION 119(2)(B) EXPLAINING THE REASON FOR THE FAILURE ON THE PART OF THE ASSES SEE TO CONSTRUCT THE RESIDENTIAL ITA NO.2257/MDS/08 & 367/MDS/09 5 HOUSE WITHIN THE SPECIFIED PERIOD OF 3 YEARS AND RE QUESTING FOR EXTENSION OF TIME. IT WAS THE SUBMISSION THAT THIS PETITION HAS NOT BE EN DISPOSED OF. THE LEARNED AUTHORIZED REPRESENTATIVE RELIED ON THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT V. BHAGAT SHYAM AND CO. R EPORTED IN 188 ITR 608 (ALL.) WHEREIN THE HONBLE HIGH COURT HAD HELD THAT THE CI T MUST APPLY HIS MIND TO THE MATERIAL PLACED BEFORE HIM AND SATISFY HIMSELF THAT IT IS A CASE WHERE HE OUGHT TO EXERCISE HIS REVISIONAL POWERS. HE FURTHER RELIED UPON THE DECISION OF THE ITAT, MADRAS BENCH B IN THE CASE OF M.A.C. KHALEELI V. DY.CIT REPORTED IN 48 ITD 191 WHEREIN IT HAS BEEN HELD THAT DEPOSITING OF THE REC EIPTS ATTRIBUTABLE TO THE CONVEYANCE OF THE LAND, IN HOUSING DIVISION OF THE ASSESSEES BUILDING CONSTRUCTION BUSINESS TO BE UTILIZED FOR THE CONSTR UCTION OF A RESIDENTIAL HOUSE, AMOUNTED TO UTILIZATION OF CONSIDERATION FOR CONSTR UCTION OF A RESIDENTIAL HOUSE WITHIN THE MEANING OF SEC. 54F. IT WAS THE SUBMISS ION THAT IN THE CASE OF M.A.C. KHALEELI THE DEPOSIT HAD BEEN MADE IN A FAMILY CONC ERN WHICH WAS DOING THE BUSINESS OF CONSTRUCTION AND STILL THE ASSESSEE WAS ENTITLED TO THE DEDUCTION UNDER SECTION 54F WHEREAS IN THE ASSESSEES CASE TH E MONEY HAD BEEN PAID TO A CONTRACTOR FOR THE PURPOSE OF CONSTRUCTING A RESIDE NTIAL HOUSE AND THE CONTRACTOR WAS ALSO IN NO WAY RELATED TO THE ASSESSEE. HE FU RTHER DREW OUR ATTENTION TO THE BANK ACCOUNT OF THE ASSESSEE IN IDBI BANK TO SH OW THAT THE AMOUNTS HAD BEEN WITHDRAWN IN CASH FOR PAYMENT TO THE CONTRACTO R ON THE SPECIFIED DATES. HE ALSO DREW OUR ATTENTION TO THE VOUCHERS ISSUED BY T HE CONTRACTOR FOR HAVING ITA NO.2257/MDS/08 & 367/MDS/09 6 RECEIVED THE MONEY AS ALSO THE COPY OF THE BUILDING CONSTRUCTION AGREEMENT ENTERED INTO BY THE ASSESSEE WITH THE CONTRACTOR. IT WAS THUS SUBMITTED THAT THE CLAIM OF DEDUCTION U/S 54F WAS RIGHTLY ALLOWED BY T HE AO IN THE SCRUTINY ASSESSMENT AFTER CONSIDERING ALL THE EVIDENCES AND THE ORDER PASSED BY THE LEARNED AO U/S. 143(3) ON 8.5.2008 ACCEPTING THE CL AIM OF THE ASSESSEE U/S. 54F WAS NOT ERRONEOUS OR PREJUDICIAL TO THE INTERESTS O F THE REVENUE. 5. IN REPLY THE LEARNED CIT-DR SUBMITTED THAT NONE OF THE DETAILS WAS PRODUCED BEFORE THE AO. NEITHER THE COPY OF THE CO NSTRUCTION AGREEMENT NOR THE PROOF OF THE PAYMENT TO THE CONTRACTOR HAD BEEN PRO DUCED BEFORE THE AO. IT WAS THE SUBMISSION THAT THE SO-CALLED BUILDING CONS TRUCTION AGREEMENT THE VOUCHERS ISSUED BY THE SO-CALLED CONTRACTOR SHRI V. GIRI WAS AN AFTERTHOUGHT. IT WAS ALSO SUBMITTED THAT EVEN THE PLAN FOR THE CONST RUCTION OF THE HOUSE HAD BEEN APPROVED ONLY IN JULY, 2009 WHICH SHOWS THAT T HE ASSESSEE HAS NOT CONSTRUCTED THE RESIDENTIAL HOUSE. IT WAS FURTHER S UBMITTED THAT THE CASH WITHDRAWALS FROM THE BANK ACCOUNT HAD NOT BEEN SHOW N TO HAVE BEEN USED FOR PAYING THE CONTRACTOR. IT WAS THE SUBMISSION THAT AS THE ASSESSEE HAD NOT INVESTED THE CAPITAL GAINS IN THE SPECIFIED BANK AC COUNT NOR HAD UTILIZED THE FUNDS FOR THE CONSTRUCTION OF THE NEW RESIDENTIAL HOUSE W ITHIN 3 YEARS FROM THE DATE OF SALE OF THE CAPITAL ASSET, THE BENEFIT OF DEDUCTION U/S. 54F WAS NOT AVAILABLE TO THE ASSESSEE. IT WAS THE SUBMISSION THAT THE LEARN ED CIT WAS RIGHT IN INVOKING HIS POWER U/S. 263 AS THE GRANT OF DEDUCTION U/S. 5 4F FOR THE ASSESSMENT YEAR ITA NO.2257/MDS/08 & 367/MDS/09 7 2006-07 WAS ERRONEOUS AND PREJUDICIAL TO THE INTERE STS OF THE REVENUE. HE VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED CIT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ORDER OF THE LEARNED CIT PASSED UNDER SECTION 263, MORE SPECIFIC ALLY AT PAGE 3 PARA 4 OF HIS ORDER, SHOWS THAT THE LEARNED CIT WAS WELL AWARE TH AT THE ASSESSEE WAS REQUIRED TO CONSTRUCT A NEW RESIDENTIAL HOUSE BEFOR E 11-08-2008. ONE SHOULD KEEP IN MIND HERE THAT THE ASSESSMENT YEAR BEING DE ALT WITH IS ASSESSMENT YEAR 2006-07. THE TIME LIMIT FOR THE EXPIRY OF THE CLAI M U/S. 54F FALLS WITHIN THE ASSESSMENT YEAR 2009-10. THE PROVISIONS OF SECTION 54F GRANT THE ASSESSEE THE BENEFIT OF DEDUCTION U/S 54F IN THE YEAR IN WHICH T HE CAPITAL ASSET IS SOLD SUBJECT TO THE COMPLIANCE OF CERTAIN CONDITIONS. THE CONDI TIONS ARE PROVIDED IN SECTION 54F (4). SEC. 54F IS AVAILABLE TO THE ASSESSEE IF THE ASSESSEE HAS EITHER INVESTED THE QUANTUM OF CAPITAL GAINS IN THE PURCHASE OF A R ESIDENTIAL HOUSE ONE YEAR BEFORE THE DATE OF THE TRANSFER OF THE CAPITAL ASSE T BEING THE ORIGINAL ASSET OR HAS UTILIZED THE AMOUNT FOR THE PURCHASE OF ANOTHER RES IDENTIAL HOUSE WITHIN 2 YEARS FROM THE DATE OF TRANSFER OF THE ORIGINAL ASSET OR HAS WITHIN A PERIOD OF 3 YEARS AFTER THAT DATE CONSTRUCTED A RESIDENTIAL HOUSE. I F THE ASSESSEE HAS VIOLATED ANY OF THOSE CONDITIONS, THEN THE EXEMPTION UNDER SECTI ON 54F WOULD NOT BE AVAILABLE IN THE YEAR OF TRANSFER OF THE ORIGINAL A SSET ITSELF. BUT IF THE ASSESSEE HAS COMPLIED WITH ANY PART OF THE SAID PROVISION AN D HE HAS NOT BEEN ABLE TO ITA NO.2257/MDS/08 & 367/MDS/09 8 FULFIL THE CONDITIONS PROVIDED IN RESPECT OF THE PU RCHASE OR CONSTRUCTION OF THE RESIDENTIAL HOUSE WITHIN THE SPECIFIED PERIOD OF 2 YEARS OR 3 YEARS, AS THE CASE MAY BE, THEN THE CAPITAL GAINS IS CHARGEABLE U/S. 4 5 AS THE INCOME OF THE PREVIOUS YEAR IN WHICH THE PERIOD OF 2 YEARS OR 3 Y EARS AS THE CASE MAY BE FROM THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET EXPI RES. THIS IS AS PER THE PROVISO TO SECTION 54F. IN THE PRESENT CASE THE ASSESSEE HAS S OLD THE ORIGINAL ASSET ON 11.8.2005 FOR A CONSIDERATION OF RS. 8,58,000/-. T HE ASSESSEE HAS PURCHASED ANOTHER PLOT OF LAND ON 5.10.2005 FOR A CONSIDERATI ON OF RS. 5,50,000/-. THE REVENUE HAS NOT BEEN ABLE TO PROVE THAT THE PAYMENT TO THE CONTRACTOR IS A SHAM NOR HAS THE LEARNED CIT VERIFIED THE SAME WITH THE CONTRACTOR. THEREFORE PRIMA FACIE THE CLAIM OF THE ASSESSEE THAT HE HAS PAID AN AMOU NT OF RS. 3,50,000/- TO THE CONTRACTOR BEFORE THE DUE DATE OF FILING THE RETURN AND ANOTHER SUM OF RS.1,00,000/- AFTER THE DUE DATE OF FILING T HE RETURN, THUS TOTALING TO RS. 4,50,000/-, WOULD HAVE TO BE ACCEPTED AS GENUINE. THUS THE ASSESSEE HAS UTILIZED RS. 9 LAKHS FOR THE PURPOSE OF PURCHASE OF THE LAND AND THE CONSTRUCTION OF A RESIDENTIAL HOUSE THEREON BEFORE THE DUE DATE OF FILING THE RETURN FOR THE ASSESSMENT YEAR 2006-07. THUS THE ASSESSEE HAS COM PLIED WITH ALL THE NECESSARY REQUIREMENTS PROVIDED UNDER SECTION54F FO R BEING ELIGIBLE FOR MAKING THE SAID CLAIM. IF AT ALL THERE HAS BEEN A VIOLATI ON, SUCH VIOLATION CAN BE CONSIDERED ONLY IN THE YEAR OF THE VIOLATION AS PRO VIDED IN THE PROVISO TO SECTION 54F(4). THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/ S. 54F CANNOT BE DENIED FOR ITA NO.2257/MDS/08 & 367/MDS/09 9 THE ASSESSMENT YEAR 2006-07 SPECIFICALLY IN VIEW OF THE PROVISIONS OF SECTION 54F(4) AND THE PROVISO THEREOF. IN THE CIRCUMSTANC ES, WE ARE OF THE VIEW THAT THE ORDER OF THE LEARNED CIT IS UNSUSTAINABLE IN LA W AND THE SAME IS SET ASIDE. 7. EVEN OTHERWISE A PERUSAL OF THE ASSESSMENT ORDER PASSED BY THE ASSESSING AUTHORITY ON 8.5.2008 CLEARLY SHOWS THAT THE AO HAS DISCUSSED THE ISSUE OF CAPITAL GAINS AND HAS ALSO VERIFIED THE DETAILS PRO DUCED THEREON WHICH INCLUDED COPIES OF THE VOUCHERS AND PURCHASE AND SALE DEEDS. THUS IT IS ONLY AFTER VERIFYING ALL THE DETAILS THAT THE AO HAS COMPLETED THE ASSESSMENT U/S. 143(3) AND HAS ALLOWED THE ASSESSEE THE CLAIM OF DEDUCTION U/S. 54F. THIS ACTION OF ALLOWING THE DEDUCTION U/S. 54F IS AS PER THE PROVI SIONS OF THE ACT AND NO ERROR CAN BE FOUND WITH THE ACTION OF THE AO IN GRANTING THE ASSESSEE EXEMPTION U/S. 54F OF THE ACT. IN THE CIRCUMSTANCES, IT WOULD HAV E TO BE HELD THAT THE REVISION U/S. 263 AS DONE BY THE LEARNED CIT IS ONLY ON A DI FFERENCE OF OPINION AND WHICH OPINION WE ARE OF THE VIEW IS UNSUSTAINABLE AS PER THE PROVISIONS OF THE ACT, MORE SPECIFICALLY THE PROVISIONS OF SECTION 54F ITS ELF. IN THE CIRCUMSTANCES ON THIS GROUND ALSO THE ORDER OF THE LEARNED CIT U/S. 263 IS UNSUSTAINABLE AND IS LIABLE TO BE QUASHED AND WE DO SO. 8. AS WE HAVE ALREADY QUASHED THE ORDER PASSED BY T HE LEARNED CIT U/S. 263 AND AS IT IS NOTICED THAT THE APPEAL IN ITA NO. 367 /MDS/2009 IS AGAINST THE ORDER OF THE LEARNED CIT LEVYING PENALTY U/S. 271(21)(C) ON ACCOUNT OF THE WITHDRAWAL OF THE EXEMPTION U/S. 54F FOR THE ASSESSMENT YEAR 2 006-07 THE VERY FOUNDATION ITA NO.2257/MDS/08 & 367/MDS/09 10 FOR THE LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT F ALLS TO THE GROUND AND CONSEQUENTLY THE ORDER PASSED BY THE LEARNED CIT LE VYING PENALTY U/S. 271(1)(C) OF THE ACT IS QUASHED. IN THE CIRCUMSTANCES, BOT H THE APPEALS OF THE ASSESSEE ARE ALLOWED. 9. THE ORDER WAS PRONOUNCED IN THE COURT ON 16-07-2 010. SD/- SD/- (ABRAHAM P. GEORGE) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 16 TH JULY, 2010. H. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE