Shri Yamuna Prasad Peshwa, JODHPUR V. DCIT, JODHPUR

ITA 416/JODH/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54392 (ITAT-JODHPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 29-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Section: 40A(3); 28

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR (BEFORE SHRI R.K. GUPTA AND SHRI .N.L. KALR A ) ITA NO.416/JU/2009 ASSESSMENT YEAR : 2006-07 PAN: AASPP 2963 P SHRI YAMUNA PRASAD PESHWA VS. THE DCIT ANAND BHAWAN, CHOPASANI ROAD CIRCLE- 3 JODHPUR JODHPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MAHENDRA GARGIEYA DEPARTMENT BY: SHRI G.R KOKANI DATE OF HEARING: 29-11-2011 DATE OF PRONOUNCEMENT: 09-12-2011 ORDER PER N.L. KALRA, AM:- THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD.CIT(A), JODHPUR DATED 12-05-2009 FOR THE ASSESSMENT YEAR 2006-07. 2.1 FIRST GROUND OF APPEAL IS GENERAL IN NATURE AND WILL THEREFORE, STAND DISPOSED OFF IN VIEW OF THE FINDINGS RECORDED AGAINST OTHER GROUNDS OF APPEAL. 3.1 SECOND GROUND OF ASSESSEE IS THAT THE LD. CIT(A ) HAS ERRED IN CONFIRMING THE DISALLOWANCE U/S 40(A)(3) OF INCOME TAX ACT AMOUNTI NG TO RS. 19,84,000/-. 3.2 BRIEF FACTS ARE THAT THE ASSESSEE IN THE RELEVA NT YEAR DERIVED INCOME FROM WHOLESALE TRADING OF CEMENT, HIRING OF MARRIAGE HAL L, PURCHASE AND SALE OF PLOTS AND COMMISSION FROM J K LAXMI CEMENT THROUGH HIS PROPRI ETORSHIP CONCERN M/S VINAYAK TRADERS. THE AO NOTED THAT ON PERUSAL OF THE BALANC E SHEET OF THE ASSESSEE AS ON 31.03.2006 AND OTHER DETAILS FURNISHED BY HIM FROM TIME TO TIME IT WAS SEEN THAT HE HAD 2 GIVEN ADVANCE OF RS. 1 CRORE TO ONE SHRI JETHMAL S/ O RAMA KISHORE IN LIEU OF PURCHASE OF 33 BIGHA 15 BISWA AND 5 BIGHA & 12 BISWA LAND AT KH ASRA NO.60, 33 BARNI THIRD VILLAGE CHOPASNI TEHSIL & DISTT. JODHPUR ON VARIOUS DATES D URING THIS YEAR 2006. HOWEVER THE DEAL COULD NOT BE MATERIALIZED AND WAS CANCELLED ON 30.04.2006. AS PER ASSESSES SUBMISSION, THE SAID AMOUNT OF RS. 1 CRORE TOWARDS PURCHASE OF LAND WAS ONLY PAID AS ADVANCE AND SINCE THE DEAL COULD NOT MATERIALIZED, THE ENTIRE AMOUNT OF RS. 1 CRORE WAS RECEIVED BACK IN THE NEXT FINANCIAL YEAR (I.E. A.Y. 2007-08). THE AO GAVE THE DATE WISE DETAILS OF THE PAYMENTS SUCH AS ADVANCE IN LIEU OF PURCHASE OF LAND (BY WAY OF BANK DRAFT DATED 21.04.2006). THE ASSESSEE SUBMITTED DETAILED REPLIES REPRODUCED IN THE ASSESSMENT ORDER. THE AO HOWEVER, ALLEGED THAT SINCE THE ASSES SEE WAS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF LAND, THE PAYMENT MADE TOWARDS ADVANCE SHOULD BE TREATED AS PAYMENT MADE TOWARDS PURCHASE OF LAND. MOREOVER, TH E ASSESSEE NEVER PRODUCED INITIAL COPY OF AGREEMENT OF PURCHASE BEFORE HER DESPITE RE PEATED REMINDERS AND THUS, WAS EMPHASIZING ONLY A HYPOTHETICAL SITUATION OF NON-PA SSING OF TITLE. HE FURTHER ALLEGED THAT ON PERUSAL OF THE AGREEMENT OF CANCELLATION OF DEAL IT WAS SEEN THAT THE AGREEMENT OF PURCHASE OF LAND WOULD HAVE STIPULATED CERTAIN COND ITIONS TO BE FULFILLED IN THE WAKE OF WHICH THE DEAL STOOD CANCELLED. THUS, THE ASSESSEE WRONGLY PRESENTED IN THE ACCOUNTS. FURTHER, RS. 1 CRORE WAS NOT A PALTRY AMOUNT TO BE JUST PASSED ON AS AN ADVANCE. MOREOVER, SUBSEQUENT TO THE CANCELLATION OF AGREEME NT THE LAND WAS PURCHASED BY ONE SHRI PRAVEEN R/O ANAND BHAWAN, WHICH IS THE RESIDEN TIAL ADDRESS OF THE ASSESSEE ALSO. THE SAID LAND WAS RE-PURCHASED BY THE ASSESSEE FROM SHRI PRAVEEN IN THE CAPACITY OF PARTNER OF M/S VINAYAK DEVELOPERS & COLONIZERS. THI S CLEARS THE FACT THAT THE ASSESSEE HAD TO CANCEL THE INITIAL AGREEMENT DUE TO SOME LEG AL EMBARGO UNDER SOME OTHER 3 LEGISLATIONS OF THE STATE GOVERNMENT. THUS, THE CAN CELLATION AGREEMENT WAS NOTHING BUT A SELF-SUPPORTING STATEMENT. HENCE, SHE CONCLUDED THA T THE CLAIM OF THE ASSESSEE THAT THE PAYMENT MADE IN CASH WAS ADVANCE WAS, NOT TENABLE. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF PURCHASE AND SALE OF PLOTS AND THUS, TH E PAYMENT WAS COVERED WITHIN THE PROVISION OF SEC.40(A) (3). CONSEQUENTLY, SHE DISAL LOWED 20% OF THE EXPENDITURE MADE IN CASH IN EXCESS OF RS. 20,000/- AMOUNTING TO R S. 19,84,000/-.THE AO ALSO TOOK AN ALTERNATIVE ARGUMENT BY RELYING ON THE CASE OF THE KEJRIWAL IRON STORES V/S CIT(1998) 169 ITR 12 (RAJ.) AND SAJOWANLAL JAISWAL V/S CIT 103 IT R 706 (ORISSA) IF, THE ASSESSEES ARGUMENT OF THE SAME BE TREATED AS ADVANCE IS ACCEP TED. 3.3 IN THE FIRST APPEAL, THE LD. CIT(A) HELD AS UND ER:- I HAVE GIVEN CAREFUL THOUGHT TO THE ELABORATE SUBM ISSIONS MADE BY THE APPELLANT. I FIND THAT THE APPELLANT HAS FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT OF ASSERTIONS AND CLAIMS MADE BY HIM BEFORE THE ASS ESSING OFFICER AS WELL AS DURING THE APPELLATE PROCEEDING, MORE PARTICULARLY AS REGARDS THE CLAIM THAT THE POSSESSION OF THE LAND HAD NOT PASSED TO HIM. I FIN D THAT THE ASSESSING OFFICER HAS RIGHTLY POINTED OUT THAT THE CLAIM WHETHER THE POSS ESSION OF LAND HAD PASSED TO THE ASSESSEE AND WHETHER THE TRANSACTION OF PURCHASE HA D MATERIALIZED REMAINS UNVERIFIABLE IN THE ABSENCE OF AGREEMENT OF PURCHAS E BECAUSE IN ABSENCE OF THIS AGREEMENT, THE TERMS AND CONDITIONS OF THE AGREEMEN T AS ALSO THE RIGHTS PASSED ON AND RELINQUISHED BY THE SELLER AS WELL AS CONDITION S TO BE FULFILLED PRIOR TO COMPLETION OF TRANSACTIONS CANNOT BE ASCERTAINED. O BVIOUSLY, THE ONUS LIES ON THE ASSESSEE TO ESTABLISH WITH EVIDENCE THAT THE TRANSA CTION ULTIMATELY DID NOT MATERIALIZE DESPITE PAYMENT HAVING BEEN MADE, AS SU CH CLAIM HAS BEEN MADE BY HIM AND IT IS SETTLED LAW THAT THE CLAIMANT HAS TO ESTABLISH THE TRUTHFULNESS OF ITS CLAIM. IN THE INSTANT CASE, IT IS APPARENT THAT WHI LE THE ASSESSEE IS VEHEMENT IN CLAIMING THAT THE TRANSACTION OF PURCHASE DID NOT M ATERIALIZE BUT HAS FAILED TO PRODUCE ANY EVIDENCE WHATSOEVER IN SUPPORT OF SUCH CLAIM. THE RULE OF PREPONDERANCE OF PROBABILITY IN COMMERCIAL TRANSACT ION ESTABLISHES THAT THE 4 ASSESSEE HAVING MADE THE FULL PAYMENT (FOR IT IS NE VER THE CLAIM OF THE ASSESSEE THAT FULL CONSIDERATION HAD NOT PASSED ON) OVER A P ROLONGED PERIOD STARTING FROM 30.07.2005 TO 14.02.2006, THE TRANSACTION OF PURCH ASE HAD MATERIALIZED ON PAYMENT OF FULL CONSIDERATION OF THE PRICE OF THE L AND. THIS INFERENCE CAN ONLY BE NEGATIVED BY ANY EVIDENCE TO THE CONTRARY WHICH THE ASSESSEE HAS FAILED TO PRODUCE DESPITE REQUIREMENT BY THE ASSESSING OFFICE R. EVEN IF FOR ARGUMENT SAKE, IT IS ACCEPTED THAT THE PAYMENT MADE BY THE ASSESSE E WAS AN ADVANCE TOWARDS PURCHASE OF STOCK IN TRADE, YET, IT TANTAMOUNT TO E XPENDITURE WITHIN THE MEANING OF SEC. 40A(3) AS HAS BEEN HELD BY HONBLE HIGH COURT OF GUJARAT IN THE CASE OF NATHALAL JETHALAL VS. CIT (199 ITR 757 GUJ.) IN WHI CH IT HAS BEEN HELD THAT THE CONTENTION OF THE ASSESSEE.THAT THE AFORESAID PAYM ENT WAS MADE TO THE AFORESAID TWO PARTIES TOWARDS ADVANCE PAYMENT FOR PURCHASE OF STOCK IN TRADE STANDS DIRECTLY ANSWERED BY THE AFORESAID OBSERVATION OF THE SUPREME COURT. I THEREFORE, HOLD THAT THE CONCLUSION OF THE ASSESSING OFFICER T HAT THE ASSESSEE HAD PURCHASED THE LAND BY PAYING THE SUM OF RS.1 CRORE IN CASH TO SH. JETHMAL IS WELL FOUNDED ON THE BASIS OF CORRECT APPRECIATION OF RELEVANT FACTS AND EVIDENCES. AS IT HAS BEEN HELD THAT THE PAYMENT HAS BEEN MADE FOR PURCHASE OF LAND BEING ADMITTEDLY STOCK IN TRADE OF THE ASSESSEE, THE PAYMENT HAVING BEEN M ADE IN CASH, THE PAYMENT OF RS.1 CRORE IS COVERED BY THE PROVISIONS OF SEC. 40( A)(3). THUS, THE ASSESSING OFFICER HAS RIGHTLY MADE ADDITION OF THE SUM OF RS. 19,84,000/- WHICH IS CONFIRMED. AS REGARDS THE APPELLANTS CONTENTION THAT NEITHER ANY EXPENSES ON THIS TRANSACTION HAS BEEN CLAIMED IN THE P &L ACCOUNT NO R ANY TRANSACTION RELATED TO THE TRADING HAS BEEN AFFECTED AND IT HAS NOT BEEN S HOWN IN THE TRADING ACCOUNT BECAUSE NO PURCHASE HAS BEEN MADE, IT IS WELL SETTL ED THAT THE VALUE OF STOCK IN TRADE HAS TO BE TAKEN INTO ACCOUNT WHILE DETERMININ G THE GROSS PROFIT U/S 28 ON THE PRINCIPLES OF COMMERCIAL ACCOUNTING, AS HAS BEEN HE LD BY THE HONBLE APEX COURT IN THE CASE OF ATTAR SINGH GURMUKH SINGH VS. ITO (1 91 ITR 667). AS IT HAS BEEN HELD AS DISCUSSED ABOVE THAT THE TRANSACTION ENTERE D INTO BY THE ASSESSEE BY MAKING PAYMENT OF RS.1 CRORE IS NOTHING BUT PURCHAS E OF LAND BEING STOCK IN TRADE, THE ASSESSEE BY NOT SHOWING THE SAID AMOUNT IN ITS P &L ACCOUNT HAS 5 APPARENTLY VIOLATED THE PRINCIPLES OF COMMERCIAL AC COUNTING, AS HAS BEEN SETTLED BY THE HONBLE APEX COURT IN THE CASE OF ATTAR SING H GURMUKH SINGH, SUPRA. IN THE LIGHT OF THE DECISION OF THE HONBLE APEX COURT , IT HAS TO BE HELD THAT THE ASSESSING OFFICER HAS RIGHTLY DRAWN THE P & L ACCOU NT AS MENTIONED IN THE ASSESSMENT ORDER FROM WHICH IT IS CLEAR THAT THE EX PENDITURE ON PURCHASE OF LAND HAS BEEN DEBITED IN THE ACCOUNTS OF THE ASSESSEE. U NDER THESE CIRCUMSTANCES, THE PAYMENT MADE BY THE ASSESSEE IS COVERED BY THE PROV ISIONS OF SEC. 40A(3). THE APPELLANT HAS ALSO MADE AN ELABORATE LIST OF JU DICIAL DECISIONS NUMBERING TO 54 SUCH ORDERS ON WHICH RELIANCE HAS B EEN PLACED BUT BEYOND LISTING THE CITATIONS OF SUCH JUDGMENTS, NO WORD HA S BEEN UTTERED TO EXPLAIN HOW THESE JUDGMENTS GO TO ADVANCE THE CAUSE OF THE ASSE SSEE. I, THEREFORE, HOLD THAT THE PAYMENT OF RS.1 CRORE M ADE BY THE ASSESSEE IS COVERED BY THE PROVISIONS OF SEC. 40A(3) OF THE I.T . ACT, 1961. IN VIEW OF THE ABOVE DISCUSSION, THE APPEAL ON THIS GROUND IS NOT ALLOWED. 3.4 BEFORE US, THE LD. AR HAS FILED THE FOLLOWING SUBM ISSIONS : 2.1 THE ONLY DISPUTE APPEARS TO BE ON THE FACTS WHETHER THE ASSESSEE PAID `1 CRORE IN CONSIDERATION OF THE PURC HASE OF THE SUBJECTED PROPERTY OR IT WAS A MERE ADVANCE. IN OTHER WORDS W HETHER IT WAS A CASE OF PURCHASE/SALE OF IMMOVABLE PROPERTY OR CANCELLATION OF TRANSACTION. THE AUTHORITIES BELOW HOWEVER, PRESUMED THE FORMER AND THEREFORE INVOKED SEC. 40A(3) ON THE SAID PAYMENT. IT IS NOT DENIED BY ANY OF THE AUTHORITIES BELOW TH AT WHAT THE APPELLANT PAID WAS ONLY AN ADVANCE TO PURCHASE THE LAND FROM SHRI JETHMAL, THE SELLER HOWEVER, IT IS AN ESTABLISHED F ACT ON RECORD THAT NO SALE COULD FINALLY TAKE PLACE IN ABSENCE OF THE POSSESSI ON OF THE LAND AND REGISTRATION THEREOF IN FAVOUR OF THE ASSESSEE UNDER THE PROVISIONS OF TRANSFER OF PROPERTY ACT, 1882 R/W REGISTRATION ACT , 1908, WITHOUT WHICH THE ASSESSEE COULD NOT HAVE BEEN A LEGAL OWNER AND THEREFORE, THERE WAS NO PURCHASES MADE AS SUCH. ALSO IT IS NOT SHOWN THAT U NDER THE PROVISIONS OF SALES OF GOODS ACT, THE TRANSACTION OF PURCHASE BY THE APPELLANT AND THE SALES BY THE SELLER SHRI JETHMAL STOOD COMPLETED. T HEREFORE, NO BODY COULD HAVE LEGALLY OR OTHERWISE SAID THAT THE SUBJECTED A MOUNT WAS PAID TOWARDS THE PURCHASE. 6 IN ANY CASE NOTABLY, BY REFERRING TO THE CANCELLATI ON AGREEMENT ( PB 68), THE AO ALSO AGREED THAT THE PAYMENT OF SUBJECT ED ADVANCE WAS TOWARDS PURCHASE OF LAND, WHICH COULD NOT MATERIALI ZE IN PARA 1.2 PAGE 2. 2.2 THIS CONTENTION WAS REJECTED SIMPLY ON THE GROUND THAT THE ONUS WAS ON THE ASSESSEE TO PROVE WITH EVIDENCE WHI CH IT FAILED BY NOT FILING AGREEMENT TO SALE. BOTH THE AUTHORITIES HOWE VER, STRANGELY FAILED TO JUDICIOUSLY APPRECIATE THAT AFTER THE CANCELLATION OF THE EARLIER TRANSACTION BETWEEN THE APPELLANT AND SHRI JETHMAL, THE SAME VE RY LAND WAS ULTIMATELY SOLD TO A THIRD BUYER SHRI PRAVEEN S/O SHRI OMARAM THROUGH A REGISTERED SALE DEED (PB 88-94) AND SHRI PRAVEEN AGAIN SOLD TO M/S VINAYAK DEVELOPERS AND COLONIZERS, A PARTNERSHIP FIRM (PB 9 5-99 ) . THE AO REJECTED THIS FACT ON MERE SUSPICION THAT TH E NEW BUYER M/S VINAYAK DEVELOPERS AND COLONIZERS WAS A FIRM IN WHICH THE ASSESSEE WAS A PARTNER BUT IGNORING THE LEGAL IMPLICATION TH EREOF AS ALSO IGNORING THE VERY FACT THAT UNDER THE IT ACT ITSELF A FIRM I S AN ABSOLUTELY DIFFERENT PERSON U/S 2(31) OF THE ACT. THE REGISTERED AGREEME NTS ( PB 88-91) CLEARLY MENTIONED IN PARA 4 THAT POSSESSION OF THE LAND HAS BEEN HANDED OVER TO THE NEW BUYER. IN PARA 5 (PB 91) AND IN PARA 7 (PB 98) IT IS MADE CLEAR THAT THE SAID LAND WAS NOT SOLD TO ANY OTHER PERSON . THE AO AND LD. CIT(A) IGNORED WITH THIS ASPECT. 2.3.1 SECONDLY, IT IS NOT DENIED THAT THE ENTIRE TRANSAC TION WAS CANCELLED VIDE A SEPARATE CANCELLATION AGREEMENT DA TED 29.04.2006 (PB 68) WHICH IS VALIDLY EXECUTED AGREEMENT AND WAS BIN DING UPON THE PARTIES. THE EXISTENCE, VALIDITY AND THE GENUINENESS OF THE SAID CANCELLATION AGREEMENT HAS NOT BEEN DENIED NOR HAVE THE LEGAL IM PLIGATIONS FLOWING THEREFORE, BEEN JUDICIOUSLY CONSIDERED . AS PER THE PROVISIONS OF TRANSFER OF PROPERTY ACT, 1882, THE LAW IS ESTABLISHED IN AS MUCH AS U/S 53A THE BUYER ASSESSEE WAS NEITHER PERFORMED NOR WAS WILLIN G TO PERFORM HIS PART OF THE CONTRACT THEREFORE, IT WAS NEITHER A COMPLET ED CONTRACT FOR SALE NOR EVEN A CASE OF PART PERFORMANCE. ON THE CONTRARY AS PER PROVISION TO SEC.53A, THE RIGHT OF A TRANSFEREE FOR A FULL CONSI DERATION (HERE SHRI PRAVEEN) HAVING NO NOTICE OF THE EARLIER CONTRACT/P ART PERFORMANCE, SHALL NOT BE AFFECTED. 2.3.2 THE REASON BEHIND THE CANCELLATION OF THE AGREEMEN T WAS EXPLAINED BEFORE THE AO THAT SINCE THE LAND WAS BELONGS TO THE SCHEDULE CASTE CANDIDATE AND THE REGISTRATION AS PER THE LAW CANNO T BE MADE IN THE NAME OF PERSON OTHER THAN THE MEMBER OF SCHEDUL E CASTES/TRIBE, THEREFORE, THE AGREEMENT HAS NOT BE MADE MATERIALIZ ED BECAUSE AS IT HAS COME TO THE NOTICE OF THE ASSESSEE AFTER THE AGREEMENT AND 7 OBTAINING THE LEGAL ADVICE THAT THE AGREEMENT IS IL LEGAL AND THE MONEY CANNOT BE RECOVERED BACK. THEREFORE, THE AGRE EMENT WAS CANCELLED AND THE COPY OF THE CANCELLATION OF THE A GREEMENT HAS BEEN ENCLOSED WITH THE SUBMISSION MADE HEREIN BEFOR E. THERE IS NO ANY WRONG DEPICTION OF FACTS BY THE ASSESSSEE, THEREFORE, THE PROCEEDINGS OF THE NOTICE MAY KINDLY BE DROPPED LOOKING THE FOLLOWING LEGAL POSITION: (I) THAT THE AGREEMENT WITH A PERSON OF A SCHEDULE CASE S OR TRIBE CANNOT BE ENFORCEABLE IF THE AGREEMENT IS MAD E WITH A PERSON OTHER THEN A PERSON BELONGING TO THAT SCHEDU LE CASE/SCHEDULE TRIBE. (II) FOR PERFORMANCE OF THE CONTRACT IS ESSENTIAL CONDIT ION AS REGARDS THE PURCHASES OF THE GOODS OR PROPERTIES. PERFORMANCE OF A CONTRACT TAKES PLACE WHEN THE PART IES TO CONTRACT FULFILL THEIR OBLIGATION ARISING THE CONTR ACT WITHIN THE TIME AND MANNER PRESCRIBED AND IN THE CASE OF IMMOVABLE PROPERTY THE AGREEMENT OR THE PURCHASES IS COMPLETE WHEN THE TIT LED IS TRANSFER TO THE PURCHASES AND I.E. ONLY AFTER THE REGISTRATI ON OF THE DOCUMENT IN THE REGISTRATION DEPARTMENT. SINCE THE REGISTRAT ION COULD NOT TAKE PLACE BECAUSE IT HAS COME IN THE NOTICE OF THE ASSESSEE THAT THE PERSON SHRI JETH MAL BINAWARA IS BY CASTE DHOBHI AN D BELONGS TO SCHEDULE CAST AND THE AGREEMENT CANNOT BE PERFORMED BEING FORBIDDEN BY LAW, THEREFORE, THE AMOUNT OF RS. 1 CR ORE HAS BEEN RECEIVED BACK THROUGH DD IN THE SUBSEQUENT FINANCIA L YEAR. (III) THERE ARE THREE STAGES IN THE PERFORMANCE OF A CONT RACT OF SALE OF GOODS BY THE SELLER VIZ. (A) TRANSFER OF PROPERTY IN THE GOODS. (B) TRANSFER OF POSSESSION OF THE GOODS (I.E. DELIVERY) , AND (C) THE PASSING OF THE RISK. TRANSFER OF PROPERTY IN GOODS FROM THE SELLER TO TH E BUYER IS THE MAIN OBJECT OF A CONTRACT OF SALE, THE TERM (PR OPERTY IN GOODS) MUST BE DISTINGUISHED FROM POSSESSION OF THE GOODS PROPERTY IN GOODS MEANS THE OWNERSHIP OF THE GOODS WHEREAS POS SESSION OF THE GOODS REFERS TO THE CUSTODY OR CONTROL OF THE G OODS. SINCE THE POSSESSION OF THE GOODS HAS NOT BEEN TRA NSFERRED, TITLE OF THE GOODS HAS ALSO NOT BEEN TRANSFERRED AN D THE DELIVER HAS ALSO NOT MADE EITHER IN PART OF IN FULL, THEREFORE, THE SAME PAYMENT MADE CANNOT BE TREATED AS PURCHASES. 8 2.3.3 THERE WAS ONE MORE REASON THAT THE BUYER DID NOT F IND ANY ENTRY FROM KHASRA NO.59 HENCE ALSO, CANCELLED THE D EAL BY MUTUAL CONSENT. HOWEVER, THERE DOES NOT APPEAR ANY REBUTTAL OF THES E REASONS. 2.4 EVEN ASSUMING THE APPELLANT FAILED TO FILE AGREEME NT TO SALE, THE CONTENTS OF THE CANCELLATION AGREEMENT DULY SIG NED BY BOTH THE EARLIER PARTIES FULLY EVIDENCED THE FACT OF MAKING PAYMENT OF ADVANCE ON 14.02.2006 WHICH COULD NOT MATERIALIZE. 2.4.1 IT IS WRONG TO SAY THAT THE ONUS WAS UPON THE ASSES SEE TO PROVE THAT THE TRANSACTION COULD NOT MATERIALIZE DE SPITE PAYMENT. IN AS MUCH AS SEC. 40A(3) ESSENTIALLY REQUIRE THE AO TO E STABLISH THAT THE ASSESSEE REALLY INCURRED AN EXPENDITURE. THE INCURRENCE OF EXPENDITURE IN THIS CASE, COULD HAPPEN ONLY WHEN THE SUBJECTED PRO PERTY WAS PURCHASED I.E. GOT TRANSFERRED IN THE NAME OF THE BUYER. THE ASSESSEE MADE NO CLAIM BY DEBITING ANY SUCH EXPENDITURE IN ITS AUDITED TRA DING & P&L A/C (PB 59-60) HENCE, THERE WAS NO QUESTION OF MAKING DISALLOWANC E NOW. THE AO HOWEVER TOTALLY FAILED TO BRING ANY EVIDENCE TO PROVE THAT THE ASSET WAS TRANSFERRED IN THE NAME OF THE ASSESS EE BUYER. IN ATTAR SINGH GURMUKH SINGH RELIED BY AO THE INCURRENCE OF EXPEND ITURE HAS BEEN CONSIDERED WITH REFERENCE TO COMPLETED TRANSACTION ONLY. HENCE, THE SAME DO NOT HELP THE ASSESSEE. HENCE, THE ONUS WAS UPON THE AO. WHAT IS APPARENT IS REAL ONUS NOT DISCHARGED: IT IS A SETTLED LAW THAT WHAT IS APPARENT IS REAL UNLESS CONTROVERTED. THE ONUS LAY UPON THE PERSON, WHO ALLEGES THAT WHAT IS APPARENT IS NOT RE AL. KINDLY REFER CIT (CENTRAL) V/S DAULAT RAM RAWATMULL (1973) 87 ITR 34 9 (SC), FOLLOWED RE CENTLY IN CIT V/S BEDI & CO. PVT. LTD. (1998) 230 I TR 580 (SC). IN THE PRESENT CASE, WHAT WAS APPARENT WAS THAT THE ADVANC E PAID WAS RECEIVED BACK, TRANSACTION CANCELLED HENCE THERE WAS NO PURC HASE. THE PROPERTY STOOD SOLD TO THIRD PARTIES. 2.4.2 IT CAN NOT BE DENIED THAT THE COMPLETE NAME A ND ADDRESS OF THE SELLER SHRI JETHMAL (PB 88 ) WAS MENTIONED ON THE REGISTERED SALE DEED. YET HOWEVER, THE AO CHOSE NOT TO MAKE ANY ENQUIRY F ROM HIM. ALTHOUGH SHRI JETHMAL EXPIRED HOWEVER, EVEN AFTER HIS DEATH, REQUIRED INQUIRY COULD BE MADE FROM THE SUCCESSOR/S. 2.4.3 ALSO THERE WERE VALID REASONS BEHIND INABILITY OF THE ASSESSEE IN PRODUCING THE INITIAL OF THE AGREEMENT DATED 14. 02.06 WAS THAT AT THE TIME OF RECEIPT OF THE REFUND OF THE ADVANCE, THE S ELLER HAD TAKEN BACK THE ORIGINAL AGREEMENT (AND UNDERSTOOD TO HAVE BEEN DES TROYED) WHICH WAS HIS LEGAL RIGHT AS THE TRANSACTION STOOD CANCELLED. IT IS AS PER HUMAN PROBABILITY THAT BASED ON THE ORIGINAL AGREEMENT THE BUYER COUL D HAVE MISUSED THE SAME. UNFORTUNATELY THEREAFTER, SHRI JETHMAL, THE S ELLER HAS ALSO EXPIRED. 9 2.4.4 THE AUTHORITIES BELOW HAVE LAID UNWARRANTED STRESS ON THE NON AVAILABILITY OF THE INITIAL AGREEMENT TO SALE W HICH WAS NOT POSSIBLE TO BE PRODUCED. STILL HOWEVER, THE SUBSEQUENT AGREEMEN TS, OTHER EVIDENCE, FACTS AND CIRCUMSTANCES ARE SUFFICIENT TO SUPPORT T HE ASSESSEES CONTENTION. 2.4.5 NO SUIT OF SPECIFIC PERFORMANCE IS REPORTED FROM T HE SELLER AGAINST THE ASSESSEE. ABSENCE OF AGREEMENT TO SALE S (PURCHASE) IS IN FAVOUR OF ASSESSEE. 2.5 THE ALLEGATION OF THE CIT(A) THAT THE RULE OF PREPONDERANCE OF PROBABILITY IN COMMERCIAL TRANSACTION ESTABLISHES T HAT THE ASSESSEE HAVING MADE THE FULL PAYMENT OVER A PROLONGED PERIOD START ING FROM 30.07.2005 TO 14.02.2006, THE TRANSACTION OF PURCHASE HAD MATE RIALIZED ON PAYMENT OF FULL CONSIDERATION OF THE PRICE OF THE LAND, IS NOT CORRECT. THE LD. CIT(A) HAS CLEARLY PRESUMED THE FACTS WHICH ARE COMPLETELY WRONG IN AS MUCH AS THE SAID LAND WAS SO LD FOR TOTAL CONSIDERATION OF RS. 5,33,20,000/- TO SHRI PRAVEEN THEREFORE, TO PRESUME THAT ONLY `1 CRORE WAS THE FULL SALE CONSIDERATION WAS AGAINST FACTS AND WITHOUT EVIDENCE. THIS CLEARLY PROVES THAT THIS WAS ONLY AN ADVANCE AND IT WAS NOT THEN CASE OF THE AO ALSO THAT THE ENTIRE SU M WAS PAID BUT STILL TRANSACTION DID NOT MATERIALIZE. 2.5.1 AT THE SAME TIME HOWEVER THE LD. CIT(A) IGNORED TH E VITAL FACTS THAT THE PRAVIN S/O SHRI OMARAM, WHO PURCHASE D THE LAND FROM SHRI JETHMAL FOR `5.33 CRORE ON 21.05.2007, FURTHER SOLD THE SAME TO M/S VINAYAK DEVELOPERS AND COLONIZERS FOR `6.68 CRORE ( PB 97), WITH A SUBSTANTIAL DIFFERENCE OF `1.35 CRORE. SHRI PRAVEEN MEGHWAL IS A SCHEDULED CASTE AND NOT RELATED TO THE ASSESSEE REMOTELY WHO IS A BRAHMIN. THE DEPARTMENT HAS INITIATED SOME ENQUIRY IN HIS CA SE WHICH ARE STATED TO BE PENDING. HOWEVER, IT MAY BE CLARIFIED THAT EXCEPT 2-3 LACS OUT OF `1.35 CRORE WAS NOTHING BUT THE COST OF DEVELOPM ENT INCURRED BY SHRI PRAVEEN. SIMILARLY, THE DEPARTMENT HAS INITIATED SOME ENQUIR Y IN THE CASE OF SHRI JETHMAL, CASE WHICH ARE STATED TO BE PENDING. 2.5.2 THE ADMITTED FACT OF THE REFUND OF THE ADVANCE IS ALSO A CASE OF HUMAN PROBABILITY SUPPORTING THE CONTENTION OF T HE ASSESSEE. 3.1 COLORABLE DEVICE: MCDOWELL NOT UNIVERSALLY APPLICAB LE: THE LD. AO HAS ALSO APPLIED MCDOWELL & CO. LTD. 154 ITR 148 (SC), HOWEVER, MUCH WATER HAS FLOWN THEREAFTER AND IT HAS BEEN REP EATEDLY HELD BY THE COURTS THAT EVERY ATTEMPT OF REDUCTION OF TAX LIABI LITY CANT BE SAID TO BE AN 10 ATTEMPT OF TAX EVASION AND HENCE, CANT BE COVERED BY MCDOWELL & CO. LTD. (SUPRA). KINDLY REFER M. V. VALLIAPPAN & OTHE RS V/S ITO 170 ITR 238 (MAD.), CWT V/S ARVIND NAROTTAM 173 ITR 479 (SC ) AND BANYAN & BERI CO. 222 ITR 831 (GUJ.). THEREFORE, THE LD. AO SHOULD NOT HAVE CONFINED ITSELF TO MC DOWELL (SUPRA). OTHERWISE, A LSO THE FACTS OF THIS CASE ARE NOT SUCH, TO HAVE SUCH AN ALLEGATION. THE AO AT PG 13 HAS REFERRED TO A DECISION IN THE C ASE OF KEJRIWAL IRON STORE AND SAJOWANLAL JAISWAL HOWEVER, THE SAME IS DISTINGUISHABLE IN AS MUCH AS THERE THE DECISION WAS GIVEN IN THE CONT EXT OF THE ADMITTED FACT OF COMPLETED TRANSACTIONS OF THE PURCHASES AND SALE S BETWEEN THE PARTIES. THE ADVANCE PAID BY THE BUYER ASSESSEE WAS ADJUSTED TOWARDS THE FINAL SALE CONSIDERATION. WHEREAS IN THIS CASE, ADMITTEDL Y TRANSACTIONS COULD NOT MATERIALIZE AND THE ADVANCE PAID WAS REFUNDED BACK. 3.2 THE ALLEGATION OF THE AO (AT PAGE 9) THAT ULTIMATEL Y THE ASSESSEE PURCHASED THE SUBJECTED LAND, WHICH IS A M ISCONCEPTION OF LAW IN AS MUCH AS ADMITTEDLY THE LAND WAS FIRSTLY, SOLD TO SHRI PRAVEEN AND THEREAFTER, HE SOLD TO M/S VINAYAK DEVELOPERS & COL ONIZERS, WHICH IS A PARTNERSHIP FIRM CONSISTING OF TWO PARTNERS AND IS AN INDEPENDENT ENTITY. FURTHER SHRI PRAVEEN DID NOT SALE THE LAND AS IT IS BUT DIVIDED THE SAME INTO VARIOUS PLOTS (PB 95-98). THE SAID FIRM IS A SEPARA TE ASSESSEE AND HAS SHOWN THIS LAND IN ITS BALANCE SHEET AS ON 31.03.08 . ALSO KINDLY REFER PARA 2.2 OF THIS W/S. MOREOVER, PRAVEEN PERMANENTLY RESI DED IN A VILLAGE MIYASANI POST OFFICE BANAR TEHSIL LUNEE DISTRICT JO DHPUR. 3.5 THE LD. AR HAS RELIED UPON THE DECISION OF ITAT COCHIN BENCH IN THE CASE OF ACIT VS HOTEL HARBOUR VIEW 44 DTR 41. 3.6 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. 3.7 WE HAVE HEARD BOTH THE PARTIES. THE REVENUE AUT HORITY HAS MENTIONED THAT ASSESSEE HS NOT PRODUCED THE COPY OF THE AGREEMENT SO AS TO ENABLE THE REVENUE AUTHORITY TO VERIFY THE CONTENTIONS OF THE ASSESSEE. THE IMMO VABLE PROPERTIES WERE PURCHASED BY THE FIRM AND DURING THE PARTNERSHIP, THE PARTNER CA NNOT HAVE EXCLUSIVE RIGHT OVER THE ASSETS OF THE FIRM. THE DISALLOWANCE U/S 40(A)( 3) CAN BE MADE WHERE THE ASSESSEE INCURS ANY EXPENDITURE. IN THE INSTANT CASE, THE ASSESSEE HAS NOT CLAIMED THE EXPENDITURE IN RESPECT OF PURCHASE OF LAND. THE REVENUE HAS NOT C OLLECTED ANY MATERIAL TO SUGGEST THAT 11 WHAT IS APPARENT IS NOT REAL. THE ASSESSEE HAS FI LED THE COPY OF THE CANCELLATION OF THE SALE AGREEMENT BY THE ASSESSEE WITH SHRI JETH MAL. THE AO HAS NOT EXAMINED SHRI JETH MAL TO SHOW THAT WHAT IS APPARENT IS NOT REAL. THE ASSESSEE HAS GIVEN THE REASONS AS TO WHY THE AGREEMENT WAS CANCELLED. WE THEREFORE, FEEL THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 19.84 LACS 4.1 THE THIRD GROUND OF ASSESSEE IS THAT THE LD. CI T(A) HAS ERRED IN CONFIRMING THE ADDITION ON ACCOUNT OF DIVERSION OF INTEREST BEARIN G FUNDS AMOUNTING TO RS. 2,43,177/- 4.2 THE AO IN HIS ORDER HAS NOTICED THAT THE ASSESS EE HAS NOT CHARGED INTEREST ON ADVANCES/ LOANS TO THIRD PERSONS. THE AMOUNT ADVANC ED ARE TO THE EXTENT OF RS. 48,68,657/-. ON SUCH ADVANCES, THE INTEREST WOULD H AVE BEEN TO THE EXTENT OF RS. 2,43,177/-. THE AO ACCORDINGLY HELD THAT INTEREST E XPENDITURE TO THE TUNE OF RS. 2,43,177/- IS HELD TO BE EXPENDED FOR NON-BUSINESS PURPOSES AND DISALLOWED THE SAME. 4.3 THE LD.CIT(A) HAS HELD AS UNDER:- I FIND THAT THE APPELLANT HAS MADE GENERAL SUBMISS IONS BUT HAS FAILED TO PRODUCE ANY MATERIAL AND EVIDENCE TO ESTABLISH THAT THE SUMS/LOANS WERE ADVANCED FOR BUSINESS PURPOSE A ND WERE OUT OF ITS FUND. THE FACT THAT THE ASSESSEE HAD TAKEN S UBSTANTIAL AMOUNT OF LOAN ON WHICH INTEREST WAS BEING PAID ALSO REMAI NS UNDISPUTED. IN THIS SET OF FACTS AND CIRCUMSTANCES, THE RATIO O F THE DECISION IN THE CASE OF ABHISHEK INDUSTRIES LTD. VS CIT (286 IT R 1 P & H) SQUARELY APPLIES. THE ACTION OF THE ASSESSING OFFIC ER IS THEREFORE, UPHELD. THE DISALLOWANCE OF RS.2,43,177/- IS CONFIR MED. THE APPEAL ON THIS GROUND FAILS AND IS NOT ALLOWED. 4.4 BEFORE US, THE LD. AR HAS SUBMITTED AS UNDER:- 1. NO NEXUS ESTABLISHED: THE LAW IS SETTLED THAT IN SUCH CASES IT IS ALWAYS FOR THE AO TO HAVE ESTABLISHED A PHYSICAL NE XUS BETWEEN THE INTEREST BEARING FUNDS AND THE INTEREST FREE ADVANC ES SO MADE, WHICH CONDITION HAS NOT BEEN FULFILLED IN THE PRESENT CAS E. ON THE CONTRARY THE 12 SUBJECTED INTEREST FREE ADVANCES WERE OUT OF THE IN TEREST FREE FUNDS AS EVIDENCED FROM THE AUDITED B/S (PB 61) WHERE IN THE ASSESSEE WAS HAVING CAPITAL OF `56,23,976/- APART FROM INTEREST FREE AD VANCES AS AGAINST THE INTEREST FREE ADVANCES OF `48.69 LACS ONLY. UNLESS THIS IS DONE NO CHARGING OF NOTIONAL INCOME IS PERMISSIBLE NOR ANY DISALLOWANCE COULD HAVE AT ALL BEEN MADE. K INDLY REFER CIT V/S HOTEL SAVERA (1999) 239 ITR 795 (MAD.), SHREE DIGVI JAY CEMENT CO. LTD. V/S CIT (1982) 138 ITR 45 (GUJ), GANESH CHAWALA V/S ITO (2008) 9 DTR 162 (JP), GUJARAT NARMADA VALLEY FERTILIZERS CO. LT D. V/S DCIT (2001) 73 TTJ 787 (AHD) AND CIT V/S TIN BOX CO. (2003) 260 IT R 637 (DEL ). KINDLY REFER CIT V/S RADICO KHAITAN LTD. (2005) 274 ITR 354 (ALL.) WHICH SUPPORT ON THIS ASPECT. THEREFORE, THE DECISION IN ABHISHEK INDUSTRIES IS CLEARLY DISTINGUISHABLE ON FACT AS EL ABORATED IN THE W/S CIT(A). 2. COVERED MATTER : THIS ISSUE IS DIRECTLY BY A RECENT ITAT ORDER IN RAM KISHAN VERMA IN ITA NO.960/JP/2010 FOR A.Y.2005 -06 VIDE ORDER DATED 08.07.2011 HOLDING THAT: 10.4 WE HAVE HEARD BOTH THE PARTIES. THE ASSESSEE IS HAVING SUFFICIENT CAPITAL. IF THERE ARE MIXED FUNDS THAT NON-INTEREST BEARING FUNDS ARE TO BE CONSIDERED AS UTILIZED FOR NON- INTEREST BEARING ADVANCES. IT IS THE ASSESSEE WHO HAS TO TAK E A BUSINESS DECISIONS. FEES IS GENERALLY RECEIVED AT THE BEGINN ING AND SURPLUS ARE USED FOR MAKING FIXED DEPOSITS AS RECEIPTS ARE IN ADVANCES WHILE EXPENSES ARE SPREAD OUT THROUGHOUT THE YEAR. SINCE INTEREST FREE ADVANCES ARE LESS THAN THE CAPITAL AND THE AO HAS NOT BROUGHT ON RECORD ANY NEXUS OF INTEREST BEARING LOANS USED THE AO COULD NOT HAVE DISALLOWED THE INTEREST. THERE IS NO ONUS ON THE ASSESSEE TO ESTABLISH THAT INTEREST FREE ADVANCES ARE OUT OF INTEREST BEARING ADVANCES IF NON-INTEREST BERAING FUNDS ARE MORE. RE LIANCE IS PLACED ON THE DECISION OF THE HONBLE BOMBAY HIGH C OURT IN THE CASE OF CIT V/S RELIANCE UTILITIES AND POWER LTD. 3 13 ITR 340 AND HONBLE DELHI HIGH COURT IN THE CASE OF CIT V/S BHA RTI TELEVENTURE LTD. 2010-TIOL-51-HC-DEL. THERE IS NO P ROVISION IN THE ACT WHICH MAY COMPEL AN ASSESSEE TO EARN INCOME . 11.1. THE ASSESSEE IN THE CROSS OBJECTION IS AGGRIE VED AGAINST CONFIRMING OF ADDITION. 11.2 AFTER CONSIDERING THE FACTS AS ABOVE, WE FEEL THAT THE AO WAS NOT JUSTIFIED IN MAKING ANY DISALLOWANCE. HE NCE, DISALLOWANCE IS DELETED. 13 3. PAST HISTORY/LATER YEARS: NOTABLY IN THE PAST AL SO THE APPELLANT HAS BEEN MAKING SUCH CLAIM AND THE SAME STOOD ALLOW ED .THE FACTS AND CIRCUMSTANCES BEING SAME, THERE APPEARS NO SPECIAL REASON TO TAKE A DEPARTURE. SIMILARLY IN THE LATER YEARS ALSO THE AP PELLANT CONTINUES MAKING PAYMENTS BUT NO DISALLOWANCES IS REPORTED. KINDLY REFER CIT V/S SRIDEV ENTERPRISES (1991) 192 ITR 165 (KAR). 4.5 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. 4.6 WE HAVE HEARD BOTH THE PARTIES. DURING THE COUR SE OF PROCEEDINGS BEFORE US, THE LD. AR HAS SUBMITTED THAT THE AO HAS NOTIONALLY CHA RGED THE INTEREST AND INCLUDED IN THE INCOME. HOWEVER, IT IS NOTICED FROM THE ORDER OF TH E AO THAT HE HAS DISALLOWED THE EXPENDITURE DEBITED UNDER THE HEAD INTEREST. THE BA LANCE SHEET IS AVAILABLE AT PAGE 61 OF THE PAPER BOOK FILED BY THE LD. AR . THE CAPITAL AC COUNT AT THE END OF THE PREVIOUS YEAR IS TO THE EXTENT OF RS. 56,23,976/-. THE INTEREST BEAR ING ADVANCES UNDER CONSIDERATION ARE TO THE EXTENT OF RS. 48,68,657/- . THERE ARE INVESTMEN T IN SHARES TO THE EXTENT OF RS. 6,49,450/-. HENCE, THE AMOUNT ADVANCES WITHOUT INTE REST AND INCLUDING INVESTMENT IN SHARES IS LES THAN THE CAPITAL OF THE ASSESSEE. THE REFORE, FOLLOWING THE DECISION OF ITAT JAIPUR BENCH IN THE CASE OF ACIT VS SHRI RAM KISHAN VERMA (ITA NO. 960/JP/2010 DATED 8-07-2011), WE HOLD THAT THE LD.CIT(A) WAS NO T JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 2,43,177/-. IT WILL BE USEFUL TO REPRODUCE P ARA 10.4 FROM THE ORDER OF THE TRIBUNAL IN THE CASE OF ACIT VS SHRI RAM KISHAN VERMA (SUPRA ). 10.4 WE HAVE HEARD BOTH THE PARTIES. THE ASSESSEE IS HAVING SUFFICIENT CAPITAL. IF THERE ARE MIXED FUNDS THAT NON-INTEREST BEARING FUNDS ARE TO BE CONSIDERED AS UTILIZED FOR NON- INTEREST BEARING ADVANCES. IT IS THE ASSESSEE WHO HAS TO TAK E A BUSINESS DECISIONS. FEES IS GENERALLY RECEIVED AT THE BEGINN ING AND SURPLUS ARE USED FOR MAKING FIXED DEPOSITS AS RECEIPTS ARE IN ADVANCES WHILE EXPENSES ARE SPREAD OUT THROUGHOUT THE YEAR. SINCE INTEREST FREE ADVANCES ARE LESS THAN THE CAPITAL AND THE AO HAS NOT BROUGHT ON RECORD ANY NEXUS OF INTEREST BEARING LOANS USED THE AO COULD 14 NOT HAVE DISALLOWED THE INTEREST. THERE IS NO ONUS ON THE ASSESSEE TO ESTABLISH THAT INTEREST FREE ADVANCES ARE OUT OF INTEREST BEARING ADVANCES IF NON-INTEREST BERAING FUNDS ARE MORE. RE LIANCE IS PLACED ON THE DECISION OF THE HONBLE BOMBAY HIGH C OURT IN THE CASE OF CIT V/S RELIANCE UTILITIES AND POWER LTD. 3 13 ITR 340 AND HONBLE DELHI HIGH COURT IN THE CASE OF CIT V/S BHA RTI TELEVENTURE LTD. 2010-TIOL-51-HC-DEL. THERE IS NO P ROVISION IN THE ACT WHICH MAY COMPEL AN ASSESSEE TO EARN INCOME . 4.7 IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE C ASE, THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 5.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 5. HENCE, THE SAME IS DISMISSED BEING NO T PRESSED. 6.1 THE GROUND NO. 6 OF THE ASSESSEE IS PERTAINING TO CHARGING OF INTEREST U/S 234B, 234C, AND 234D WHICH ARE MANDATORY AND CONSEQUENTIA L IN NATURE. 7.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 0 9-12-2011 SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JODHPUR DATED: 09/12/2011 MISHRA COPY TO: 1. SHRI YAMUNA PRASAD PESHWA 2. THE DCIT, CIRCLE- 3, JODHPUR 3.THE LD. CIT (A) BY ORDER 4.THE CIT 5.THE D/R 6.THE GUARD FILE (ITA NO.416/JU/09) A.R.. ITAT: JODHPUR 15