M/S. TRUPTI K. SHAH, MUMBAI V. THE ITO 24(2),

ITA 421/MUM/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8058 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 17-02-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 18-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MALADHI SRIDHARAN
• Assessee Lawyers: N M PORWAL
• Keywords: Unexplained cash credit; Gift; Business income
• Section: 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'J' BENCH, MUMBAI BEFORE SHRI R.V. EASWAR, PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 421/MUM/2008 (ASSESSMENT YEAR: 2004-05) MRS. TRUPTI K. SHAH INCOME TAX OFFICER - 24(2)(4) FLAT NO. 56, SHANKTIKUNJ BANDRA KURLA COMPLEX ANAND ROAD, WALAD (WEST) VS. BANDRA, MUMBAI MUMBAI 400064 PAN - AKEPS 3404 Q APPELLANT RESPONDENT APPELLANT BY: SHRI N.M. PORWAL RESPONDENT BY: SMT. MALADHI SRIDHARAN O R D E R PER B. RAMAKOTAIAH, A.M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A)- XXIV, MUMBAI DATED 13.12.2007. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS); 1. ERRED IN CONFIRMING THE DISALLOWANCE FOR GIFTS RECE IVED OF RS.11,83,302. 2. ERRED IN NOT CONSIDERING THE DETAIL SUBMISSION MADE BY THE APPELLANT 3. BRIEFLY STATED, THE ASSESSEE FILED THE RETURN OF IN COME DECLARING TOTAL INCOME OF ` 1,69,037/- ON 12.08.2004. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE I.T. ACT. SUBSEQUENTLY, THE C ASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) DATED 29.0 8.2005 WAS ISSUED AND SERVED UPON THE ASSESSEE ON 31.08.2005. FURTHER NOT ICES UNDER SECTION 142(1) DATED 23.05.2006 AND 03.10.2006 WERE ISSUED AND DULY SERVED UPON THE ASSESSEE. IN RESPONSE TO THE ABOVE NOTICES, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THE DETAILS. ITA NO. 421/MUM/2008 MRS. TRUPTI K. SHAH 2 DURING THE YEAR IN QUESTION, ASSESSEE RECEIVED TOTA L GIFT OF RS.11,83,302/- FROM THE FOLLOWING PARTIES: 1) KISHORIBHAI (N.R.I.) RS. 7,05,120/- 16-4-2003 2) RAMESH J. SHAH (N.R.I.) RS. 1,09,280/- 18-6-2003 3) NITESH SHAH (N.R.I.) RS. 1,78,826/- 3-9-03 4) JITENDRA SHAH (N.R.I.) RS. 91,136/- 5-9-03 5) RAMESH J. SHAH (N.R.I.) RS. 98,940/- 8-9-03 TOTAL RS.11,83,302/- THE ASSESSING OFFICER WAS OF THE OPINION THAT THE D ONORS WERE NOT RELATED TO THE ASSESSEE, THERE WAS NO REASON OF ANY NATURAL LO VE AND AFFECTION BETWEEN THE DONORS AND THE ASSESSEE AND THERE WAS NO MOTIVE OR OCCASION FOR GIVING THE GIFTS. HE ASKED THE ASSESSEE TO PRODUCE THE DON ORS FOR THEIR EXAMINATION IN ORDER TO ASCERTAIN THEIR IDENTIFY AND NATURE OF TRANSACTIONS. HOWEVER, SHE FAILED TO DO SO. IN VIEW OF THIS, THE A.O. ASSESSED THE GIFTS AS INCOME FORM OTHER SOURCES. 3.2 BEFORE THE CIT(A) THE ASSESSEE SUBMITTED THAT THE DONORS COULD NOT BE PRODUCED BECAUSE THEY WERE NON-RESIDENTS. HOWEVER, THEIR CONFIRMATIONS AND BANK STATEMENTS WERE PRODUCED. IT WAS SUBMITTED THAT A GIFT DOES NOT WARRANT ANY MOTIVE OR OCCASION OR RECIPROCITY AND T HE ASSESSEE ESTABLISHED THE IDENTITY OF THE CREDITORS AND THEIR CREDITWORTH INESS. FURTHER, THE TRANSACTIONS WERE MADE THROUGH CHEQUES. 2.3 THE CIT(A) REJECTED THE SUBMISSION BY HOLDING A S UNDER: - 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND SU BMISSIONS OF LD. A.RS CAREFULLY. THE APPELLANT WAS REQUIRED TO ESTAB LISH THE IDENTITY OF THE DONORS, THEIR FINANCIAL CAPACITY AND GENUINENES S OF GIFT TRANSACTIONS. SHE COULD NOT PRODUCE THE DONORS BEFO RE THE ASSESSING OFFICER AND SO THEIR IDENTITY CANNOT BE SAID TO HAV E BEEN ESTABLISHED. TO JUDGE THE GENUINENESS OF A GIFT TRANSACTION, ONE HAS TO LOOK INTO THE ASPECT OF HUMAN PROBABILITY, RELATIONSHIP OF DO NOR AND DONEE, OCCASION FOR MAKING THE GIFT AND EXISTENCE OF RECIP ROCITY. IN THIS CASE THERE WAS NO RELATIONSHIP BETWEEN THE DONORS AND TH E DONEE, THERE WAS NO OCCASION FOR MAKING THE GIFTS AND THERE WAS NO RECIPROCAL GIFT BY THE APPELLANT. A GIFT IS GIVEN OUT OF NATURAL L OVE AND AFFECTION. NO FACT WAS SHOWN ON THE BASIS OF WHICH ANY KIND OF NA TURAL LOVE AND AFFECTION BETWEEN THE DONORS AND THE DONEE COULD HA VE BEEN CLAIMED. ONLY BECAUSE THE GIFTS WERE RECEIVED IN CHEQUES CAN NOT MAKE THEM GENUINE TRANSACTION. ITA NO. 421/MUM/2008 MRS. TRUPTI K. SHAH 3 HE ALSO DISCUSSED THE JUDICIAL PRINCIPLES IN THE FO LLOWING CASES: - I. CIT VS. P. MOHANKALA 291 ITR 278 (SC) II. JASPAL SINGH VS. CIT 290 ITR 306 (P&H) III. ACIT VS. RAJEEV TANDON 294 ITR (AT) 219 (DEL) HE CONFIRMED THE GIFT HOLDING THAT THE ASSESSEE FAI LED TO PROVE THE GENUINENESS OF THE TRANSACTIONS. THE ASSESSEE IS AG GRIEVED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE DRAWING OUR AT TENTION TO THE SUBMISSIONS AND EVIDENCES FILED BEFORE THE AUTHORIT IES, PLACED IN THE PAPER BOOK, SUBMITTED THAT THE 3 DONORS ARE RELATED AND O NE IS A FRIEND OF HUSBAND. IT WAS HIS SUBMISSION THAT THE ASSESSEE FI LED ALL THE EVIDENCES, RELATIONSHIP, ETC. TO PROVE THE GENUINENESS OF THE GIFTS. HE REFERRED TO THE LETTER DATED 09.10.2006 PLACED AT PAGE 6 OF THE PAP ER BOOK FILED BEFORE THE A.O. IT WAS HIS SUBMISSION THAT THE A.O. ASKED FOR PRODUCTION OF THE DONORS WHICH COULD NOT BE COMPLIED AS THEY RESIDE OUTSIDE INDIA BUT THE PASSPORTS, BANK STATEMENT, CONFIRMATION, ETC. WERE FILED TO PR OVE THE GENUINENESS OF THE GIFT. THE LEARNED A.R. RELIED ON THE FOLLOWING CASE S: I. CIT VS. MAJOJ KUMAR SEKHRI 214 CTR 141 (P&H) II. CIT VS. PADAM SINGH CHOUHAN 215 CTR 303 (RAJ) III. KANCHAN SINGH VS. CIT 221 CTR 456 (ALL) 5. THE LEARNED D.R., HOWEVER, RELIED ON THE ORDERS OF THE A.O. AND THE CIT(A). HE PLACED ON RECORD THE DECISION OF THE HON 'BLE SUPREME COURT IN THE CASE OF CIT VS. P. MOHANKALA 291 ITR 278 AND OT HER CASES RELIED ON BY THE CIT(A). 6. WE HAVE CONSIDERED THE ISSUE OF GENUINENESS OF THE GIFTS AND EXAMINED THE DOCUMENTS PLACED ON RECORD. THE ASSESS EE FILED CONFIRMATIONS, BANK STATEMENTS AND SUPPORTING DOCUMENTS INCLUDING THE RELATIONSHIP AS UNDER VIDE LETTER DATED 09.10.2006: - 1. SHRI RAMESH J. SHAH - RS. 1,09,208/- & RS.98,94 0/- : - THIS DONOR HAS SUBMITTED THE FOLLOWING DOCUMENTS: (A) LETTER OF CONFIRMATION OF GIFT (B) BANK STATEMENT (C) INCOME TAX CHALLANS (D) OTHER SUPPORTING DOCUMENTS ITA NO. 421/MUM/2008 MRS. TRUPTI K. SHAH 4 YOU HAVE STATED IN YOUR NOTICE THAT THERE IS NO IMM EDIATE FAMILY MEMBER RELATIONSHIP EXISTS WITH SHRI RAMESH J. SHAH . WE WOULD LIKE TO INFORM YOU AND STATE THAT THERE IS NO PRECONDITI ON WHICH SHOULD EXIST BETWEEN DONOR AND DONEE TO GIVE THE GIFT. THE ONLY CONSIDERATION WHICH THE INCOME TAX ACT REQUIRES IS OUT OF LOVE AN D AFFECTION. UNDER THE VARIOUS INCOME TAX JUDGEMENTS LOVE AND AFFECTIO N CAN HAPPEN ANYTIME AND ANYWHERE AND AT ALL TIME. THERE IS NO P RECONDITION OF ANY RELATIONSHIP. INSPITE OF THE ABOVE FACT EVEN TH OUGH RELATIONSHIP IS NOT ESSENCE OF GIFT TRANSACTION, WE WOULD LIKE TO I NFORM YOU THAT SHRI RAMESH J. SHAH IS ASSESSEES HUSBANDS ELDEST BROTH ER AND ALSO UNDER HINDU FAMILY ELDEST BROTHER IS CONSIDERED AS IN THE PLACE OF FATHER. SO IN OTHER WORDS HE IS LIKE FATHER IN LAW TO THE ASSESSEE. 2. SHRI JITERNDRA J. SHAH RS.91,136/- : - THIS DONOR HAS SUBMITTED THE FOLLOWING DOCUMENTS: (A) LETTER OF CONFIRMATION OF GIFT (B) BANK STATEMENT (C) INCOME TAX CHALLANS (D) OTHER SUPPORTING DOCUMENTS YOU HAVE STATED IN YOUR NOTICE THAT THERE IS NO IMM EDIATE FAMILY MEMBER RELATIONSHIP EXISTS WITH SHRI JITENDRA J. SH AH. WE WOULD LIKE TO INFORM YOU AND STATE THAT THERE IS NO PRECONDITI ON WHICH SHOULD EXIST BETWEEN DONOR AND DONEE TO GIVE THE GIFT. THE ONLY CONSIDERATION WHICH THE INCOME TAX ACT REQUIRES IS OUT OF LOVE AN D AFFECTION. UNDER THE VARIOUS INCOME TAX JUDGEMENTS LOVE AND AFFECTIO N CAN HAPPEN ANYTIME AND ANYWHERE AND AT ALL TIME. THERE IS NO P RECONDITION OF ANY RELATIONSHIP. INSPITE OF THE ABOVE FACT EVEN TH OUGH RELATIONSHIP IS NOT ESSENCE OF GIFT TRANSACTION, WE WOULD LIKE TO I NFORM YOU THAT SHRI JITENDRA J. SHAH IS ASSESSEES HUSBANDS SECOND ELD EST BROTHER AND ALSO UNDER HINDU FAMILY ELDEST BROTHER IS CONSIDERE D AS IN THE PLACE OF FATHER. SO IN OTHER WORDS HE IS LIKE FATHER IN LAW TO THE ASSESSEE. 3. MR. NILESH V. SHAH 1,78,826/- : - THIS DONOR HAS SUBMITTED THE FOLLOWING DOCUMENTS: (A) LETTER OF CONFIRMATION OF GIFT (B) BANK STATEMENT (C) INCOME TAX CHALLANS (D) OTHER SUPPORTING DOCUMENTS YOU HAVE STATED IN YOUR NOTICE THAT THERE IS NO IMM EDIATE FAMILY MEMBER RELATIONSHIP EXISTS WITH MR. NILESH V. SHAH. WE WOULD LIKE TO INFORM YOU AND STATE THAT THERE IS NO PRECONDITION WHICH SHOULD EXIST BETWEEN DONOR AND DONEE TO GIVE THE GIFT. THE ONLY CONSIDERATION WHICH THE INCOME TAX ACT REQUIRES IS OUT OF LOVE AN D AFFECTION. UNDER THE VARIOUS INCOME TAX JUDGEMENTS LOVE AND AFFECTIO N CAN HAPPEN ANYTIME AND ANYWHERE AND AT ALL TIME. THERE IS NO P RECONDITION OF ANY RELATIONSHIP. INSPITE OF THE ABOVE FACT EVEN TH OUGH RELATIONSHIP IS NOT ESSENCE OF GIFT TRANSACTION, WE WOULD LIKE TO I NFORM YOU THAT MR. NILESH V. SHAH IS ASSESSEES HUSBANDS SISTERS SON (NEPHEW). ITA NO. 421/MUM/2008 MRS. TRUPTI K. SHAH 5 4. MR. KISHOREBHAI RS.7,05,120/- : - THIS DONOR HAS SUBMITTED THE FOLLOWING DOCUMENTS: (A) LETTER OF CONFIRMATION OF GIFT (B) BANK STATEMENT (C) INCOME TAX CHALLANS (D) OTHER SUPPORTING DOCUMENTS YOU HAVE STATED IN YOUR NOTICE THAT THERE IS NO IMM EDIATE FAMILY MEMBER RELATIONSHIP EXISTS WITH MR. KISHOREBHAI. WE WOULD LIKE TO INFORM YOU AND STATE THAT THERE IS NO PRECONDITION WHICH SHOULD EXIST BETWEEN DONOR AND DONEE TO GIVE THE GIFT. THE ONLY CONSIDERATION WHICH THE INCOME TAX ACT REQUIRES IS OUT OF LOVE AN D AFFECTION. UNDER THE VARIOUS INCOME TAX JUDGEMENTS LOVE AND AFFECTIO N CAN HAPPEN ANYTIME AND ANYWHERE AND AT ALL TIME. THERE IS NO P RECONDITION OF ANY RELATIONSHIP. THE ACCOMPANYING DOCUMENTS DO INDICATE THAT THE DON ORS ARE IDENTIFIABLE, THEY HAVE CREDITWORTHINESS AND THE MONIES ARE RECEI VED BY THE ASSESSEE THROUGH REGULAR BANKING CHANNELS. IN OUR VIEW THE O NLY REASON FOR REJECTING THE DOCUMENTS ON RECORD SEEMS TO BE NON-PRODUCTION OF DONORS BEFORE THE A.O. WE ARE UNABLE TO UNDERSTAND HOW THE DONORS, WH O DO NOT RESIDE IN INDIA, CAN BE PRODUCED BEFORE THE A.O. IN THE GIVEN TIME. THE ASSESSEE EVEN VOLUNTEERED TO PRODUCE THEM IF SUMMONS WERE ISSUED DIRECTLY TO THEM WITH TWO MONTHS TIME. THE A.O. DID NOT ACCEPT THIS NOR E NQUIRED ON HIS OWN. A.O. HAS NOT DOUBTED THE TRANSACTIONS EXCEPT STATING THA T THERE IS NO GENUINENESS IN THE GIFT TRANSACTIONS. 7. IN CASE OF CIT VS. PADAM SINGH CHOUHAN 215 CTR 303 (RAJ) ON SIMILAR ISSUE THE HON'BLE RAJASTHAN HIGH COURT HAS EXAMINED THE FACTS AND HELD AS UNDER: - THERE IS NO LEGAL BASIS TO ASSUME, THAT TO RECOGNI ZE THE GIFT TO BE GENUINE, THERE SHOULD BE ANY BLOOD RELATIONSHIP, OR ANY CLOSE RELATIONSHIP, BETWEEN THE DONOR AND THE DONEE. INST ANCES ARE NOT RARE, WHEN EVEN STRANGERS MAKE GIFTS OUT OF VERY MA NY CONSIDERATIONS, INCLUDING ARISING OUT OF LOVE, AFFE CTION AND SENTIMENTS. WHEN THE ASSESSEE HAS PRODUCED THE COPIES OF THE GI FT DEEDS AND THE AFFIDAVITS OF THE DONORS, IN THE ABSENCE OF ANYTHIN G TO SHOW, THAT THE ACT OF THE ASSESSEE IN CLAIMING GIFT, WAS AN ACT BY WAY OF MONEY LAUNDERING, SIMPLY BECAUSE HE HAPPENS TO RECEIVE GI FTS, IT CANNOT BE SAID THAT, THAT IS REQUIRED TO BE ADDED IN HIS INCO ME. ITA NO. 421/MUM/2008 MRS. TRUPTI K. SHAH 6 8. IN THE PRESENT CASE THREE OF THE DONORS WERE BLOOD RELATIONS, HENCE THE RECEIPT OF MONIES CANNOT BE DOUBTED AS THERE WAS BL OOD RELATIONSHIP. IN THE CASE OF MR. KISHOREBHAI THERE IS NO RELATIONSHIP BU T ON THE BASIS OF CONFIRMATIONS, IT CAN NOT BE STATED THAT THE SAID P ERSON IS NOT GENUINE OR HE DOES NOT HAVE CREDITWORTHINESS. 9. AS SEEN FROM THE CONFIRMATIONS, SHRI NILESH SHAH HA S MIGRATED TO LONDON IN 1997 AND TO US AT THE TIME OF CONFIRMATIO N DATED 08.06.2006 HE WAS WORKING WITH PRICEWATERHOUSE COOPERS IN UK & US A AND HAS PAID SUBSTANTIAL AMOUNTS AS TAXES IN BOTH THE COUNTRIES . SO THE CREDITWORTHINESS AND GENUINENESS CANNOT BE DOUBTED. IN THE CASE OF S HRI RAMESH SHAH THE CONFIRMATION DATED 10.06.2006 INDICATES THAT HE STU DIED MECHANICAL ENGINEERING AND IS A GERMAN PASSPORT HOLDER FROM 19 78 AND RESIDES AT STUTTGART, GERMANY AND THE MONEY WAS DONATED FROM H IS SOURCE THROUGH BANK LBBW OF 4,000 EUROS. LIKEWISE SRI JITENDRA SHA H ALSO CONFIRMED VIDE LETTER DATED 19.07.2006 THAT HE GIFTED A SUM OF $2, 000 FROM BANK FUND STAFF CREDIT UNION. HE IS A RESIDENT OF USA FOR THE LAST 30 YEARS AND WORKING WITH THE WORLD BANK. MR. KISHORE SAMTANI IS A RESIDENT O F HONG KONG FOR THE LAST 17 YEARS AS ON 16.06.2006 (DATE OF CONFIRMATION) BE ING AN NRI FOR LAST 23 YEARS AND HAS BUSINESS IN TV PRODUCTS (HK) LTD. HE ALSO FURNISHED HIS BANK DETAILS AND TAX RETURN COPIES LIKE OTHERS. 10. THE LETTERS AND CONFIRMATIONS FILED BY THE ASSESSEE BEFORE THE A.O. AND THE CIT(A) DO INDICATE THAT THE ASSESSEE HAS DISCHA RGED THE PRIMARY ONUS OF ESTABLISHING GENUINENESS OF THE GIFTS RECEIVED AND THE EVIDENCES INDICATE THAT THESE TRANSACTIONS ARE GENUINE. AS THE A.O. RE JECTED ONLY ON THE PRETEXT OF NOT PRODUCING THE DONORS AND OBSERVED THAT THE A SSESSEE HAS NOT HAVING ANY OCCASION TO RECEIVE GIFTS, WE ARE OF THE OPINIO N THAT THESE ARE NOT VALID REASONS TO REJECT THE EVIDENCE ON RECORD. CONSIDERI NG THE EVIDENCE ON RECORD, WE HOLD THAT THE GIFTS RECEIVED CAN BE TAKEN AS GEN UINE GIFTS AND THE RECEIPT OF MONEY CANNOT BE TAKEN AS UNEXPLAINED CASH CREDIT UNDER SECTION 68/69. 11. IN THE COURSE OF APPEAL THE ASSESSEE FILED ADDITION AL GROUNDS AS UNDER:- ITA NO. 421/MUM/2008 MRS. TRUPTI K. SHAH 7 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT IT WAS NOT POSSIBLE FOR THE APPELLANT TO EARN A SUM OF RS.11,83,302/- IN ONE YE AR AND THAT BY NO STRETCH OF IMAGINATION COULD THE APPELLANT BE CREDITED WITH HAVING EARNED A SUM OF RS.11,83,302/- DURING THE CO URSE OF ASSESSMENT YEAR 2004-05 WHEN SHE HAS NOT DONE ANY B USINESS EITHER DURING THE ASSESSMENT YEAR 2004-05 OR DURING THE PRIOR YEARS AS PER THE RETURN OF INCOME ALONGWITH COMPUTA TION OF INCOME FILED WITH THE DEPARTMENT DURING LAST FEW YE ARS. 2. THE LD. CIT(A) ERRED IN NOT APPRECIATING THE COM PLETE ABSENCE OF SOURCE OF THE BUSINESS INCOME EXCEPT THE INTEREST A ND LIAISON INCOME WHICH THE APPELLANT HAS BEEN OFFERING FOR TA XATION FOR THE LAST FEW YEARS AS PER THE RETURN OF INCOME AND THE COMPUTATION OF INCOME FILED WITH THE DEPARTMENT. 3. THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT TH E WORD MAY IN SECTION 68 CANNOT BE INTERPRETED TO MEAN SHALL. T HE APPELLANT RELIED ON THE HON'BLE SUPREME COURT JUDGEMENT IN TH E CASE OF CIT VS. SMT. P.K. NOORJAHAN 237 ITR 570 (SC). 4. THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT WH ERE THE STATUTE PLACES THE BURDEN ON PROOF IN INCOME-TAX CASES ON T HE TAXPAYER, IT IS TO BE UNDERSTOOD, THAT IT IS ONLY THE INITIAL BURDEN. WHEN THE APPELLANT EXPLAINED THE GIFT BY GIVING EVIDENCE OF IDENTITY I.E. NRE BANK STATEMENT AND PASSPORT COPY ALONGWITH THEI R CONFIRMATIONS, THE APPELLANT CAN BE SAID TO HAVE DI SCHARGED HER INITIAL BURDEN. 12. THESE ADDITIONAL GROUNDS ARE IN FACT ALTERNATE SUBM ISSIONS ON THE ISSUE. THESE ARE NOT CONSIDERED AS WE HOLD THAT THE GIFTS ARE GENUINE. IT WAS ALSO NOTICED THAT THE ASSESSEE IS HAVING INCOME UND ER THE HEAD BUSINESS NOT ONLY DURING THE YEAR BUT ALSO IN AN EARLIER YEA R. SO THE CONTENTIONS IN THE ADDITIONAL GROUNDS DOES NOT APPLY TO THE FACTS OF THE CASE, THEREFORE, THE ADDITIONAL GROUNDS ARE REJECTED. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH MARCH 2011. SD/- SD/- (R.V. EASWAR) (B. RAMAKOTAIAH) PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 16 TH MARCH 2011 ITA NO. 421/MUM/2008 MRS. TRUPTI K. SHAH 8 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXIV, MUMBAI 4. THE CIT XXIV, MUMBAI CITY 5. THE DR, J BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.