KAPOOR GLASS INDIA P.LTD, MUMBAI V. DCIT (TDS) , CPC GHAZIABAD, GHAZIABAD

ITA 3677/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5444 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 19-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Earning of tax free income; Cost of acquisition
• Section: 50C; 14A; 133(6); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.3677/M/2017 ASSESSMENT YEAR: 2011-12 ITA NO.3464/M/2016 ASSESSMENT YEAR: 2011-12 DY COMMISSIONER OF INCOME TAX, CIRCLE -3(3)(1), ROOM NO.609, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 VS. M/S. SARTHAK INDUSTRIES LTD., 302, DEVKRUPA BUILDING, 28, RAICHUR STREET, MUMBAI 400 009 PAN: AABCA 3214A (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI MADHUR AGRAWAL, A.R. REVENUE BY : SHRI V. VIDHYADHAR, D.R. DATE OF HEARING : 09.07.2018 DATE OF PRONOUNCEMENT : 25.07.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEALS HAVE BEEN PREFERRED BY THE REV ENUE AGAINST THE TWO DIFFERENT ORDERS BOTH EVEN DATED 26 .02.2016 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREIN AFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2011- 12, ONE IS QUANTUM PROCEEDINGS AND SECOND IS AGAINST THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: '1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 4,80,500/- MA DE BY THE ASSESSING OFFICER ITA NO.3677/M/2017 & ITA NO.3464/M/2016 M/S. SARTHAK INDUSTRIES LTD. 2 UNDER SECTION 14A R.W.R. 8D OF THE INCOME TAX ACT,1 961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT THAT THE AMOUNT O F DISALLOWANCE U/S 14A HAS TO BE COMPUTED AS PER RULE 8D WHEN THE COMPUTAT ION OF THE ASSESSEE WAS NOT FOUND TO BE CORRECT AS HELD IN THE ORDER OF THE HON 'BLE HIGH COURT IN THE CASE OF M/S GODREJ & BOYCE MFG. CO. LTD. 3. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO CONSIDER THE DATE OF P URCHASE AS 15.12.2006 AND TREAT THE CAPITAL GAIN/LOSS ON ACCOU NT OF SALE OF LAND AT ANAND GUJARAT AS LONG TERM CAPITAL GAIN/LOSS AS AGAINST T HE SHORT TERM CAPITAL GAIN TREATED BY THE ASSESSING OFFICER BY CONSIDERING THE DATE OF SALE AS 23.04.2010. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT THAT THE ORDER OF HON'BLE GUJARAT HIGH COURT DATED 15.12.2006 WAS WITH RESPECT TO THE CONF IRMATION OF SALE OF PROPERTY IN FAVOUR OF ASSESSEE FOR CONSIDERATION OF RS 1 CRORE ON COMPLYING WITH THE DIRECTIONS MENTIONED THEREIN, WH ICH MAKES IT CLEAR THAT THE SAID PROPERTY WAS NOT PASSED TO THE ASSESE E ON THE DATE OF HIGH COURT ORDER BUT ON A LATER DATE ON 23-04-2010 AFTER COMPLYING THE DIRECTIONS OF THE ORDER. 5. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GR OUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY.' 3. THE ISSUE RAISED IN GROUND NO.1 IS IN RESPECT OF DELETION OF ADDITION OF RS.4,80,500/- BY LD. CIT(A) AS MADE B Y THE AO UNDER SECTION 14A READ WITH RULE 8D OF THE ACT WHER EAS GROUND NO.2 IS IN SUPPORT OF THE GROUND NO.1. 4. THE FACTS IN BRIEF ARE THAT THE AO OBSERVED DURIN G THE ASSESSMENT PROCEEDINGS THAT ASSESSEE HAS CLAIMED DI VIDEND INCOME OF RS.5,27,989/- AS EXEMPT UNDER SECTION 10(34 ) OF THE ACT AND THE SUO-MOTTO MADE DISALLOWANCE UNDER S ECTION 14A READ WITH RULE 8D AT RS.1,34,729/-. THE AO ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY THE DISALLOW ANCE SHOULD NOT BE WORKED OUT IN TERMS OF SECTION 14A OF THE ACT ITA NO.3677/M/2017 & ITA NO.3464/M/2016 M/S. SARTHAK INDUSTRIES LTD. 3 READ WITH RULE 8D. IN RESPONSE, THE ASSESSEE FILED WRITTEN SUBMISSIONS DATED 09.08.2013 SUBMITTING THAT RS.2,88,203 /- WERE PAID TOWARDS INTEREST ON LOAN TAKEN FOR INVEST MENT IN SHARES AND SUCH INTEREST MAY BE DISALLOWED WHEREAS THE OTHER INTEREST PAID ARE RELATED WITH THE BUSINESS OF THE ASSESSEE AND COULD NOT BE CONSIDERED FOR THE PURPOSE OF DISALLOW ANCE UNDER SECTION 14A OF THE ACT. THE ASSESSEE ALSO SUBMITTE D BEFORE THE AO THAT THE DISALLOWANCE UNDER SECTION 8D(2)(II I) WAS WORKED OUT TO RS.1,32,685/-. THE AO FINALLY WAS NOT SATISFIED WITH THE SUBMISSION OF THE ASSESSEE AND WORKED OUT THE DISALLOWANCE AT RS.6,15,229/- UNDER SECTION 14A READ WITH RULE 8D AND AFTER ALLOWING THE SUO-MOTO DISALLOWANC E OF RS.1,34,729/- MADE A NET ADDITION OF RS.4,80,500/-. 5. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) DELETE D THE DISALLOWANCE BY OBSERVING THAT ASSESSEES OWN FUNDS IN THE FORM OF CAPITAL AND RESERVES WERE MORE THAN THE INV ESTMENTS MADE IN THE SHARES AND THUS FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. HD FC BANK LTD. 366 ITR 505 AND BY OBSERVING THAT AO HAS NOT R ECORDED ANY SUSPICION AND DISMISSED THE CONTENTION OF THE ASSESSEE IN A CLOSER MANNER AND FINALLY THE LD. CIT(A) PARTLY AL LOWED THE APPEAL OF THE ASSESSEE. 6. THE LD. D.R. WHILE RELYING ON THE ORDER OF AO SUB MITTED BEFORE US THAT THE PLEA OF THE ASSESSEE AS ACCEPTED BY LD. CIT(A) WAS NOT BEFORE THE AO AND THEREFORE THE MATT ER SHOULD BE RESTORED TO THE FILE OF THE AO TO EXAMINE THE DE TAILS VIZ. INTEREST FREE OWN FUNDS VIS--VIS THE INVESTMENTS I N SHARES SO ITA NO.3677/M/2017 & ITA NO.3464/M/2016 M/S. SARTHAK INDUSTRIES LTD. 4 THAT THE SAME COULD BE DECIDED DENOVO BASED UPON TH E FACTS OF THE CASE. 7. WHEREAS THE LD. A.R., ON THE OTHER HAND, LAID STRE SS ON THE NON RECORDING OF THE SATISFACTION BY THE AO WHI CH IS MANDATORY REQUIREMENT FOR INVOKING THE PROVISION OF SECTION 14A READ WITH RULE 8D. THE LD. A.R. FURTHER SUBMITTE D THAT THE INTEREST INCOME DURING THE YEAR AS SHOWN IN SCH EDULE J WAS RS.57,83,581/- WHEREAS THE INTEREST ON FINANCE CHARGES WERE TO THE TUNE OF RS.35,76,574/- THUS RESULTING I NTO NET INCOME AT RS.22,07,007/- AND FURTHER CONTENDED THAT WH EN THERE IS A NET POSITIVE INTEREST INCOME NO DISALLOW ANCE OF INTEREST EXPENSES IS REQUIRED TO BE MADE. TO SUPPO RT HIS CONTENTIONS, THE LD. A.R. RELIED ON THE DECISION OF A COUPLE OF DECISIONS NAMELY; CIT VS. JUBILIANT ENTERPRISES PVT. LTD. IN ITA NO.1512 OF 2014 (BOM. HC) AND CIT VS. JIWRAJKA ASSOC IATES PVT. LTD. IN ITA NO.443 OF 2015 (BOM. HC). THE LD. A. R. ALSO VEHEMENTLY PRESSED THAT THE ASSESSEES OWN FUNDS WE RE FAR MORE THAN INVESTMENTS IN THE TAX FREE FUNDS AND THE REFORE THE LD. CIT(A) DIRECTLY RELIED ON THE DECISION OF CIT VS . HDFC BANK LTD. (SUPRA). THUS, FINALLY THE LD. A.R. ARGUED THAT THE ORDER OF LD. CIT(A) IS WELL REASONED AND THEREFORE NEEDS TO BE AFFIRMED. 8. HAVING HEARD BOTH THE SIDES AND PERUSING THE MATE RIAL ON RECORD, WE FIND THAT THE AO HAS NOT RECORDED ANY SAT ISFACTION AT THE TIME OF INVOKING THE PROVISION OF SECTION 14 A READ WITH RULE 8D WHICH IS MANDATORY REQUIREMENT OF LAW. FUR THER, WE FIND THAT ASSESSEES OWN FUNDS WERE FAR MORE THAN T HE ITA NO.3677/M/2017 & ITA NO.3464/M/2016 M/S. SARTHAK INDUSTRIES LTD. 5 INVESTMENTS MADE IN THE SHARES WHICH YIELDED EXEMPT INCOME AND THE LD. CIT(A) HAS RIGHTLY FOLLOWED THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. HD FC BANK LTD. (SUPRA). WE ALSO FIND MERIT IN THE CONTENTION OF T HE LD. A.R. THAT WHERE THE NETTING OF INTEREST INCOME AND INTER EST EXPENSES TURNS OUT TO BE POSITIVE I.E. IF THE INTERE ST INCOME IS MORE THAN THE INTEREST EXPENSES NO DISALLOWANCE UND ER SECTION 14A IS CALLED FOR. THUS, WE FIND NO INFIRM ITY IN THE ORDER OF LD. CIT(A) DELETING THE ADDITION OF RS.4,80 ,500/- AND ACCORDINGLY WE DISMISS GROUND NOS.1 & 2 RAISED BY TH E REVENUE. 9. THE ISSUE RAISED IN GROUND NOS.3 & 4 IS AGAINST TH E ORDER OF LD. CIT(A) DIRECTING THE AO TO CONSIDER THE DATE OF PURCHASE AS 15.12.2006 INSTEAD OF 23.04.2010 THE DATE ON WHICH THE SALE DEED WAS EXECUTED. 10. THE FACTS IN BRIEF ARE THAT THE AO DURING THE C OURSE OF ASSESSMENT PROCEEDINGS OBSERVED THAT ASSESSEE HAS S OLD IMMOVABLE PROPERTY COMPRISING LAND ADMEASURING 24,3 82 SQ. MTS. FOR A CONSIDERATION OF RS.1,00,00,000/-, HOWEVER, A S PER ITS DETAILS SALE CONSIDERATION WAS SHOWN AT RS.1,64, 54,129/-. AFTER CLAIMING THE INDEXED COST OF ACQUISITION AT RS.1,36,99,422/- THE ASSESSEE HAD SHOWN LONG TERM CA PITAL LOSS OF RS.36,99,422/-. ACCORDING TO THE AO, THE SALE CONSIDERATION AS PER SALE DEED DATED 23.04.2010 WAS RS.1,00,00,000/-. THE AO ALSO ISSUED NOTICE UNDER SE CTION 133(6) ON 27.02.2014 TO THE SUB REGISTRAR. HOWEVER, NO REPLY WAS RECEIVED TILL DATE. THE ASSESSEE SUBMITTED BEFO RE THE AO ITA NO.3677/M/2017 & ITA NO.3464/M/2016 M/S. SARTHAK INDUSTRIES LTD. 6 THAT THE SAID AMOUNT WAS ACQUIRED BY THE ASSESSEE D URING THE BIDDING PROCESS BY THE HONBLE GUJARAT HIGH COURT O RDER DATED 15.12.2006 FOR RS.1,00,00,000/- BY FURNISHING A COPY OF THE HONBLE GUJARAT HIGH COURT ORDER CONFIRMING THE ACQ UISITION OF PROPERTY FOR THE SAID CONSIDERATION BY THE ASSESSEE SUBJECT TO THE FULFILLMENT OF OTHER VARIOUS CONDITIONS. THE AS SESSEE SOLD THE SAID LAND AT SAME PRICE AT RS.1,00,00,000/-, THE STAMP VALUE OF WHICH WAS RS.1,64,54,129/-. ACCORDING TO THE AO, THE ASSESSEE HAS SOLD THE PROPERTY AT A PRICE WHICH IS MUCH LOWER THAN THE STAMP VALUE AND ACCORDINGLY REWORKED THE CAPITAL GAIN BY TAKING THE PURCHASE DATE AS 23.04.2 010 AND COST OF ACQUISITION AT RS.1,00,00,000/- AND TAKING TH E SALE CONSIDERATION AT RS.1,64,54,129/- THUS WORKING OUT THE SHORT TERM CAPITAL GAIN AT RS.64,54,129/- AS AGAINST THE LO NG TERM CAPITAL LOSS OF RS.36,99,422/- CALCULATED BY THE ASS ESSEE. 11. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) PART LY ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING AND HOLDING AS UNDER: 5.6 GROUND NO.6 5.6.1 THIS GROUND OF APPEAL PERTAINS TO ADDITION OF RS.64,54,129/- AS SHORT-TERM CAPITAL GAIN. THE ASSESSING OFFICER HAS DISCUSSED THIS ISSUE AT PARA-6 OF HIS ORDER. THE APPELLANT COMPANY HAD MADE FOR ACQUISITION OF LAND AT ANAND, GUJARAT AND THE OFFICIAL LIQUIDATOR OF HIGHE ST BIDDER VIDE ORDER DECLARED OF HONOURABLE GUJARAT HIGH COURT DECLARED IT AS THE HIGHEST BIDDER VIDE ORDER DATED 15/12/2006. THE APPELLANT HAD MADE PAYM ENT FOR THE SAID LAND IN 5 INSTALLMENTS AS PER HIGH COURT ORDER TOTA LLING TO RS.1,00,00000/-. THESE FACTS ARE SUPPORTED BY DOCUM ENTS AVAILABLE ON RECORD. THE IMPUGNED LAND WAS SOLD BY THE APPELLANT FOR RS. 1 CRORE. SALE DEED BETWEEN THE APPELLANT AND RADHE SHYAM DEV ELOPERS SHOWS THAT THE LAND WAS SOLD VIDE SALE DEED DATED 23/04/2010 F OR AN AMOUNT OF RS. 1 CRORE. 5.6.2 AT PARA-6.2 OF HIS ORDER, THE AO HAS STATED T HAT THE APPELLANT HAS PURCHASED THE IMPUGNED LAND FROM THE OFFICIAL LIQUI DATOR AND SOLD IT ON THE SAME DATE NAMELY, 23/04/2010. FROM COPIES OF THE COURT ORDERS ITA NO.3677/M/2017 & ITA NO.3464/M/2016 M/S. SARTHAK INDUSTRIES LTD. 7 AVAILABLE ON RECORD THIS OBSERVATION OF THE AO IS N OT CORRECT. AS PER THE ORDER OF HON'BLE GUJARAT HIGH COURT, THE APPELL ANT HAD TO DEPOSIT 25% OF THE AMOUNT WITHIN ONE MONTH OF CONFIRMATION OF SALE BY THE OFFICIAL LIQUIDATOR AND THE APPELLANT HAS MADE THE 1 ST PAYMENT ON 13/01/2007. THUS, CLEARLY THE IMPUGNED LAND WAS CON VEYED BY THE OFFICIAL LIQUIDATOR TO THE APPELLANT W.E.F. THE DAT E OF THE ORDER OF HON'BLE GUJARAT HIGH COURT, I.E. 15/12/2006. THE DA TE OF SALE AS PER THE SALE DEED IS 23/04/2010. THUS, THE IMPUGNED LAN D WAS HELD BY THE APPELLANT FOR MORE THAN 36 MONTHS AND QUALIFIES AS LONG-TERM CAPITAL ASSET AS PER PROVISIONS OF SECTION (42A) OF INCOME TAX ACT, 1961. 5.6.3 SINCE THE AO HAD REFERRED THE MATTER TO VALUA TION OFFICER UNDER PROVISIONS OF SECTION 50C OF INCOME TAX ACT, 1961 A ND THE SAME HAD NOT BEEN RECEIVED TILL THE DATE OF PASSING ASSESSME NT ORDER UNDER SECTION 143(3), THE AO IS DIRECTED TO RECOMPUTE LON G TERM CAPITAL GAIN/LOSS IN CONSEQUENCE OF THIS ORDER AND CONSIDER ING THE REPORT OF THE VALUATION OFFICER. THIS GROUND OF APPEAL IS PAR TLY ALLOWED. 12. THE LD. D.R. RELIED ON THE ORDERS OF AUTHORITIES BELOW. 13. THE LD. A.R., ON THE OTHER HAND, SUBMITTED THAT T HE SAID PROPERTY WAS PURCHASED BY THE ASSESSEE IN A BID VID E HONBLE GUJARAT HIGH COURT ORDER DATED 15.12.2006. THE LD. A.R. DREW OUR ATTENTION TO THE COPY OF THE HIGH COURT OR DER AS FILED ON PAGE 33 TO 35 OF THE PAPER BOOK WHEREIN THE VARI OUS CONDITIONS AND THE CONSIDERATION FOR WHICH THE PROP ERTY WAS PURCHASED WAS MENTIONED. THE LD. A.R. FURTHER POINTE D OUT THAT THE VALUATION AS PER GIDCO WAS RS.44.11 LAKHS AND THUS THE UPSET/MINIMUM PRICE WAS FIXED AT RS.44 LAKHS AN D THE ASSESSEE PAID THE HIGHEST OF RS.1,00,00,000/- FOR WH ICH THE PAYMENTS WERE MADE FROM 13.01.2007 TO 13.04.2007 AGGREGATING TO RS.1,00,00,000/- AND THUS AS PER THE SA ID COURT ORDER THE PROPERTY ACQUISITION OF THE PROPERT Y DATED BACK TO THE DATE OF THE ORDER ITSELF I.E. 15.12.2006. AS R EGARDS THE CONDITION IN THE HIGH COURT ORDER THAT RS.25 LAKHS SHALL BE PAID WITHIN ONE MONTH FROM THE DATE OF THE ORDER, T HE LD. A.R. ITA NO.3677/M/2017 & ITA NO.3464/M/2016 M/S. SARTHAK INDUSTRIES LTD. 8 SUBMITTED THAT THE MERE POSTPONEMENT OR DEFERMENT I N THE PAYMENT OF CONSIDERATION WOULD NOT CHANGE THE DATE OF ACQUISITION BY THE ASSESSEE. THE LD. A.R. IN DEFENCE OF HIS ARGUMENT RELIED ON A COUPLE OF DECISIONS NAMELY GUR UBAX SINGH VS KARTAR SINGH & OTHERS 254 ITR 112 (SC) AND FORT PROPERTIES PVT. LIMITED 208 ITR 232 (BOM. HC). THE L D. A.R. FINALLY PRAYED BEFORE THE BENCH THAT IN VIEW OF THE SE FACTS THE ORDER OF LD. CIT(A) SHOULD BE AFFIRMED ON THIS ISSUE . 14. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE ACQUIRED THE SAID PROPERTY IN A B ID VIDE HONBLE GUJARAT HIGH COURT ORDER DATED 15.12.2006 W HICH PRESCRIBED VARIOUS CONDITIONS FOR THE CONVEYANCE OF THE LAND IN FAVOUR OF THE ASSESSEE. ONE OF THE CONDITIONS WAS THAT ASSESSEE WAS TO PAY RS.25 LAKHS WITHIN ONE MONTH. H OWEVER, THE SAME WAS PAID BY THE ASSESSEE ON 13.01.2007 AND T HE FULL CONSIDERATION WAS PAID TILL 13.04.2007 AGGREGATING TO RS.1,00,00,000/-. THE RESERVE PRICE FOR THE LAND WAS FIXED BY THE OFFICIAL LIQUIDATOR AT RS.44 LAKHS ON THE BASIS OF VALUATION OF GITCO AT RS.44.11 LAKHS. THE SAID PROPERTY WAS SO LD BY THE ASSESSEE ON 23.04.2010 FOR A CONSIDERATION OF RS.1,00,00,000/- AS AGAINST THE STAMP VALUE OF RS.1,64,54,129/-. THE ASSESSEE INDEXED THE COST AT RS.1,36,99,422/- WHEREAS THE AO CALCULATED THE CAPIT AL GAIN BY TAKING THE SALES CONSIDERATION AT RS.1,64,54,129/ - AND COMPUTED SHORT TERM CAPITAL GAIN OF RS.64,54,129/- WITHOUT ALLOWING THE INDEXATION ON THE GROUND THAT THE LAND WAS A SHORT TERM CAPITAL ASSET. NOW THE ONLY ISSUE BEFORE US IS ITA NO.3677/M/2017 & ITA NO.3464/M/2016 M/S. SARTHAK INDUSTRIES LTD. 9 WHETHER THE ASSESSEE BECAME THE OWNER OF THE PROPER TY ON 15.12.2006 OR ON 23.04.2010. AFTER CONSIDERING ALL TH E FACTS ON RECORD AND GOING THROUGH THE APPELLATE ORDER OF LD. CIT(A), WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS TAKEN A CORRECT VIEW ON MATTER BY TAKING 15.12.2006 AS THE DATE OF ACQUISITION OF THE ASSETS IN TERMS OF HONBLE GUJAR AT HIGH COURT ORDER AND THE DATE OF SALE AS 23.04.2010. TH US LD. CIT(A) HAS CORRECTLY TAKEN A VIEW THAT ASSESSEE HAS HELD THE LAND FOR MORE THAN 36 MONTHS AS PER THE PROVISION O F SECTION 2(42A) OF THE ACT. ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED ON THIS GROUND. ITA NO.3464/M/2016 15. SINCE WE HAVE DISMISSED THE APPEAL OF THE REVEN UE IN QUANTUM APPEAL, THE APPEAL OF THE REVENUE IN ITA NO.3464/M/2016 AGAINST DELETION OF PENALTY BY LD. CI T(A) BECAME INFRUCTUOUS AND IS ACCORDINGLY DISMISSED. 16. IN THE RESULT, BOTH THE APPEALS OF THE REVENUE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25.07.2018. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 25.07.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI ITA NO.3677/M/2017 & ITA NO.3464/M/2016 M/S. SARTHAK INDUSTRIES LTD. 10 THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY /ASSTT. REGISTRAR, ITAT, MUMBAI.