ALAKA RAGHUNATH NADKARNI, MUMBAI V. ITO 18(2)(1), MUMBAI

ITA 4465/MUM/2009

• Counselvise Citation: 446519914 RSA 2009
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 27-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D B BAPAT
• Keywords: Depreciation; Cost of acquisition; Fair market value; Valuation report
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI, J. SUDHAKAR REDDY, ACCOUNTANT MEMBER A ND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 4465/MUM./2009 (ASSESSMENT YEAR : 2006-07 ) DATE OF HEARING: 21.3.2011 MRS. ALKA RAGHUNATH NADKARNI 42, BEACH TOWERS, P. BALU MARG PRABHADEVI, MUMBAI 400 025 PAN AAGPN7269N .. APPELLANT V/S INCOME TAX OFFICER WARD-18(2)(1), PIRAMAL CHAMBER LALBAUG, PAREL, MUMBAI 400 012 .... RESPONDENT ITA NO. 4481/MUM./2009 (ASSESSMENT YEAR : 2006-07 ) INCOME TAX OFFICER WARD-18(2)(1), PIRAMAL CHAMBER LALBAUG, PAREL, MUMBAI 400 012 .. APPELLANT V/S SMT. ALKA RAGHUNATH NADKARNI 42, BEACH TOWERS, P. BALU MARG PRABHADEVI, MUMBAI 400 025 PAN AAGPN7269N .... RESPONDENT ASSESSEE BY : MR. D.B. BAPAT REVENUE BY : MR. JAGDISH MRS. ALKA RAGHUNATH NADKARNI ITA NO.4465/MUM./2009 ITA NO.4481/MUM./2009 2 O R D E R PER J. SUDHAKAR REDDY, A.M. THESE CROSS APPEALS ARE DIRECTED AGAINST THE IMPUGN ED ORDER DATED 25 TH MARCH 2009, PASSED BY THE COMMISSIONER (APPEALS)-X VIII, FOR ASSESSMENT YEAR 2006-07. 2. FIRST WE TAKE UP ASSESSEES APPEAL IN ITA NO.4465/M UM./2009. THE SOLE ISSUE FOR OUR CONSIDERATION IS WHETHER THE FAI R MARKET VALUE OF THE PROPERTY AS ON 1 ST APRIL 1981, IS ` 18,50,000, AS CLAIMED BY THE ASSESSEE OR ` 10,00,000, AS DETERMINED BY THE ASSESSING OFFICER, FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS ON SALE OF RESIDENTIAL FLAT. 3. THE FACTS OF THE CASE ARE BROUGHT OUT AT PARA-2/PAG ES-1 AND 2 OF THE COMMISSIONER (APPEALS)S ORDER AND THE SAME IS EXTR ACTED BELOW FOR READY REFERENCE:- 2. FACTS OF THE CASE ARE THE ASSESSEE SOLD AN IMM OVABLE PROPERTY IN WHICH SHE IS 50% SHARE HOLDER. THE DETA ILS OF THE PROPERTY SOLD IS AS UNDER:- DESCRIPTION OF THE PROPERTY SALE PRICE INDEXED CAPITAL GAINS AS PER ASSESSEE FLAT NO.9, JAYANT MAHAL, D ROAD, CHURCHGATE, MUMBAI 400 020 1,58,00,000 63,08,000 (ASSESSEES SHARE ` 31,54,000 THE SAID PROPERTY WAS BEQUEATHED ON 4.7.2001 BY VIR TUE OF WILL MADE BY MS. KUMUDINI KASHINATH MITRA IN APRIL 1989. THE PROPERTY WAS ACQUIRED BY THE TESTATOR IN OCTOBER 1960, BY BECOMI NG THE MEMBER OF THE SAID SOCIETY. WHILE WORKING OUT CAPITAL GAIN THE APPELLANT TOOK C OST OF ACQUISITION AT ` 18,50,000, WHEREAS THE A.O. DETERMINED COST OF ACQ UISITION AS ON 1.4.1981 AT ` 10 LACS. A.O. TOOK COST OF ACQUISITION AT ` 10 LAKHS ON THE BASIS OF INFORMATION COLLECTED FROM M/S. JAYANT MAH AL CO. OPERATIVE SOCIETY LTD. IN RESPECT OF SALE INSTANCES OF THE SA LE TRANSACTION OF SIMILAR UNITS IN THE SAME BUILDING. DETAILS OF THE SAME ARE AS UNDER:- MRS. ALKA RAGHUNATH NADKARNI ITA NO.4465/MUM./2009 ITA NO.4481/MUM./2009 3 FLAT NO. AREA AS PER SALE DEED DATE OF EXECUTION VALUE OF TRANSACTION F-18 1100 02.07.1984 10,62,000 F-22 1100 25.08.1992 64,25,000 F-7 1100 23.02.1993 65,00,000 F-7 1100 19.07.1998 1,25,00,000 F-17 1100 16.08.1999 10,00,000 OUT OF THE ABOVE FIVE INSTANCES, ONLY FIRST INSTANC E I.E., SALE OF FLAT NO.F-18, IS CLOSER TO THE DATE OF 1.4.1981 T HEREFORE, THE A.O. TOOK FAIR MARKET VALUE OF THE PROPERTY AT ` 10 LACS FOR THE PURPOSE OF COMPUTING LONG TERM CAPITAL GAIN OF THE SAID PROPERTY. APPELLANTS MAIN STAND HAS BEEN THAT : (A) THE AGREEMENT DATED 23.7.1984 BETWEEN SMT. NAND INI J. SHAH AND SMT. BHARTI MAHENDRA SINGH, IN RESPECT OF FLAT NO.F-18 SHOWS THE SALES CONSIDERATION AS ` 10,62,000. THIS IS ONLY THE RECORDED SALES PRICE AS PER AGREEMENT AND NOT NECES SARILY THE FAIR MARKET VALUE OF THE PROPERTY. (B) IN THE CASE OF THE ASSESSEE, THE SALE PRICE OF THE FLAT IN THE YEAR 2005-06 WAS ` 1,58,00,000 WHEREAS THE STAMP DUTY AUTHORITIES HAVE VALUED THE SAME AT ` 1,45,00,000. BASED ON THE COST INFLATION INDEX FOR THAT YEAR, WHICH WAS 497, THE VALUE OF THE PROPERTY AS 1.4.1981 WHERE THE BASE INDEX IS 100 WO RKS OUT AS UNDER:- 100 ----- X 1,45,00,000 = ` 29,18,000 497 WHEREAS ASSESSEE HAS CLAIMED FAIR MARKET VALUE AT ` 18,50,000. THEREFORE, THERE IS NO OVER VALUATION OF THE COST O F ACQUISITION AS ON 1.4.1981. THE ASSESSING OFFICER REJECTED THESE CONTENTIONS O F THE ASSESSEE AND HELD THAT THE FAIR MARKET VALUE AS ON 1 ST APRIL 1981, SHOULD BE TAKEN AT ` 10,00,000. FURTHER, HE HELD THAT THE DATE OF ACQUIS ITION IS 4 TH JULY 2001, AND NOT DATE OF ACQUISITION OF THE PREVIOUS OWNER. ON A PPEAL, THE COMMISSIONER (APPEALS), ON THE ISSUE OF DATE OF ACQUISITION, HEL D IN FAVOUR OF THE ASSESSEE. MRS. ALKA RAGHUNATH NADKARNI ITA NO.4465/MUM./2009 ITA NO.4481/MUM./2009 4 ON THE ISSUE OF FAIR MARKET VALUE AS ON 1 ST APRIL 1981, HE UPHELD THE ORDER OF THE ASSESSING OFFICER. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. IN REVENUES APPEAL IN ITA NO.4481/MUM./2009, THE S OLE ISSUE IS WHETHER, THE COMMISSIONER (APPEALS) WAS RIGHT IN HO LDING THAT THE PERIOD OF HOLDING OF THE PREVIOUS OWNER SHOULD BE CONSIDERED FOR THE PURPOSE OF INDEXATION WHILE COMPUTING CAPITAL GAINS. 5. LEARNED COUNSEL, MR. D.P. BAPAT, APPEARING ON BEHAL F OF THE ASSESSEE, FILED A PAPER BOOK RUNNING INTO 49 PAGES AND SUBMIT ED THAT THE ASSESSEES VALUATION OF THE PROPERTY AS ON 1 ST APRIL 1981 OF ` 18,50,00,000 IS SUPPORTED BY A REPORT OF A REGISTERED VALUER. HE DREW THE ATT ENTION OF THE BENCH TO PAGES-1 TO 14 OF THE PAPER BOOK WHICH IS A REPORT F ROM MANDAR M. RISBUD, ARCHITECT AND VALUER & SURVEYOR AND POINTED OUT THA T THE ARCHITECT HAS TAKEN THE CARPET AREA OF THE FLAT AT 1,100 SQ.FT. AS PER THE SOCITYS RECORDS WHICH CORRESPONDED TO A BUILT UP AREA OF 1,320 SQ.FT. HE POINTS OUT THAT THE VALUER HAS STATED THAT FOR SIMILAR FLATS, THE MARKET VALUE IN THE LOCALITY WAS ABOUT ` 1,600 TO ` 1,700 PER SQ.FT. OF BUILT UP AREA IN THE YEAR 1981 . THE VALUER RELIED UPON THE PUBLICATIONS OF ACCOMMODATION TIMES AND INDIAN VALUERS DIRECTORY & REFERENCE BOOK AND ON ENQUIRE WITH THE RESIDENTS AND IN THE LOCAL MARKET. AFTER DEPRECIATION, THE VALUER CONSID ERED THE RATE AT ` 1,400 PER SQ.FT. AS REASONABLE. HE FURTHER ARGUED THAT TH ERE WERE SALE INSTANCES IN A NEAR-BY SOCIETY I.E., A FLAT IN GOVIND MAHAL, WHI CH IS AT PAGE-27 OF THE ASSESSEES PAPER BOOK, WHEREIN THE SALE PRICE WAS ` 7,00,224 AND THAT THIS SALE PRICE SHOULD BE CONSIDERED AS A INDICATIVE FAC TOR OF THE MARKET VALUE. HE FURTHER REFERRED TO THE CIRCULAR OF THE TOWN PLANNI NG AND VALUATION DEPARTMENT, JT. DIRECTOR, TOWN PLANNING VALUATION, PUNE, ON THE ISSUE OF MARKET VALUE OF DOCUMENTS EXECUTED BEFORE 1 ST MARCH 1981, AND AFTER CONSIDERATION OF VARIOUS FACTORS, THE I.G. OF REGIS TRATION AND CONTROLLER OF STAMPS, PREPARED A READY RECKNOR, WHEREIN THE MARKE T VALUE FOR THE YEAR 1981 WAS TAKEN @ 40% OF THE MARKET VALUE OF THE YEA R 1989. HE ALSO REFERRED TO PAGE-33 OF THE PAPER BOOK AND POINTED O UT THAT THE STAMP DUTY IS MRS. ALKA RAGHUNATH NADKARNI ITA NO.4465/MUM./2009 ITA NO.4481/MUM./2009 5 REQUIRED TO BE PAID BASED ON BUILT UP AREA ONLY AND NOT ON CARPET AREA OR SUPER BUILT AREA. THEREAFTER, HE REFERRED TO PAGE-3 6 OF THE PAPER BOOK WHEREIN THE MARKET VALUE OF THE PROPERTY WAS FIXED AT ` 3,800 PER SQ.FT. AND ARGUED THAT 40% OF THIS RATE WOULD WORK OUT TO ` 1,520 PER SQ.FT., WHICH IS THE GOVERNMENT FIXED RATE AND WHEREAS, THE FAIR MAR KET VALUE SHOWN BY THE ASSESSEE WAS ` 1,400 PER SQ.FT. HE ALSO RELIED ON CERTAIN COMMENT ARIES IN SUPPORT OF HIS ARGUMENTS. HE ALSO RELIED ON THE PUB LISHED MARKET VALUES OF IMMOVABLE PROPERTY IN MUMBAI AS ON 1 ST APRIL 1981, WHICH IS AT PAGES-46 AND 48 OF THE PAPER BOOK, WHEREIN AT PAGE-47, THE V ALUE GIVEN, IS AS FOLLOWS:- 8-R ROAD: NETAJI SUBHASHCHANDRA ROAD FROM TATA THEATRE (NCFA) TO BOUNDARY OF A-WARD 800 SQ.FT. ` 1,400 P.SQ.FT. 6. LEARNED COUNSEL FURTHER FILED INSTANCES OF SALE IN THE YEAR 1984 TO SUPPORT THE VALUATION MADE BY THE VALUER. HE FURTHE R CONTENDED THAT DURING THE EARLY 1980S, IT WAS COMMON PRACTICE THAT THE AS SESSEE DID NOT REPORT THE FULL VALUE WHILE TRANSFERRING PROPERTIES AND THIS P REVALENT PRACTICE HAS TO BE TAKEN INTO CONSIDERATION WHILE DETERMINING FAIR MAR KET VALUE. FOR THIS PURPOSE, HE RELIED ON THE DECISION OF MUMBAI BENCH OF THIS TRIBUNAL IN KUMAR K. CHHABRIA V/S ITO, ITA NO.5347/MUM./2008, VIDE OR DER DATED 30 TH MARCH 2010, REPORTED AS 2010-TIOL-277-ITAT-MUM. ON THE AG REEMENT OF SALE DATED 2 ND JULY 1984, RELIED UPON BY THE ASSESSING OFFICER, T HE LEARNED COUNSEL SUBMITTED A COPY OF THE SAME AND POINTED OU T THAT THIS IS AN UNREGISTERED DOCUMENT ON A ` 5 STAMP PAPER AND CANNOT BE RELIED UPON AND THAT THE VALUE THEREIN IS LESSER THAN THE FAIR MARK ET VALUE FIXED BY THE GOVERNMENT FOR THAT YEAR. THE SUM AND SUBSTANCE OF ASSESSEES SUBMISSION IS THAT THE VALUATION MADE BY THE QUALIFIED VALUER IS PROPER AND THE SAME SHOULD BE ACCEPTED FOR THE PURPOSE OF COMPUTATION O F CAPITAL GAINS AND THAT THE VALUATION BY AN EXPERT SHOULD PREVAIL WHEN THER E IS NO CONTRARY EXPERT OPINION. MRS. ALKA RAGHUNATH NADKARNI ITA NO.4465/MUM./2009 ITA NO.4481/MUM./2009 6 7. LEARNED DEPARTMENTAL REPRESENTATIVE, MR. JAGDISH, O N THE OTHER HAND, SUBMITS THAT THE ASSESSING OFFICER HAS TAKEN A COMP ARABLE INSTANCES OF SALE IN THE VERY SAME SOCIETY AND DETERMINED THE VALUE A S ON 1 ST APRIL 1981. HE SUBMITS THAT NOTICE UNDER SECTION 133(6) OF THE ACT WAS ISSUED TO THE GOVERNING BODY OF JAYANT COOPERATIVE SOCIETY AND TH E SOCIETY, VIDE LETTER DATED 25 TH NOVEMBER 2008, PROVIDED THE INSTANCES OF SALE TRAN SACTIONS OF SIMILAR UNITS IN THE SAID BUILDING. HE SUBMITS THAT AS THE DATE 2 ND JULY 1984 WAS CLOSEST TO THE DATE 1 ST APRIL 1981, THIS WAS TAKEN AS THE FAIR MARKET VALUE. HE CONTENDED THAT FAIR MARKET VALUE CAN BE D ETERMINED BASED ON ACTUAL INSTANCES ONLY. HE REFERRED TO THE VARIOUS R EASONS GIVEN BY THE ASSESSING OFFICER AND SUBMITS THAT THE SAME HAVE BE EN RIGHTLY ACCEPTED BY THE COMMISSIONER (APPEALS). 8. NOW, COMING TO THE REVENUES APPEAL IN ITA NO. 4481 /MUM./2009, BOTH THE PARTIES AGREE THAT THE ISSUE STANDS COVERE D IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF MUMBAI SPECIAL BENCH OF THE TRIBUNAL IN DCIT V/S MANJULA J. SHAH, (2009) 319 ITR (AT) 417 (SB) (MUM.). 9. RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDERATION OF THE FACTS & CIRCUMSTANCES OF THE CASE AND A PERUSAL OF THE PAPE RS ON RECORD, ORDERS OF THE AUTHORITIES BELOW, AND THE CASE LAWS CITED BEFO RE US, WE FIND THAT THE ASSESSEE HAS NOT SUBMITTED ANY VALUATION REPORT BEF ORE THE ASSESSING OFFICER. BEFORE THE COMMISSIONER (APPEALS), THE ASS ESSEE CLAIMS TO HAVE PRODUCED THE SAID VALUATION REPORT BUT THE COMMISSI ONER (APPEALS) HAS NOT COMMENTED ON THE SAME. THE ASSESSING OFFICER RELIED UPON AN UNREGISTERED AGREEMENT OF SALE DATED 23 RD JULY 1984 BETWEEN SMT. NANDINI JYOTINDRA SHAH, AND SMT. BHARTI MAHENDRA SINGH. THE FAIR MARK ET VALUE FIXED AS ON 1 ST APRIL 1984, AT SUB-REGISTRAR OFFICE, HAS NOT BEEN R EFERRED TO IN THIS UNREGISTERED AGREEMENT OF SALE. AS COMPARED TO THAT , ON 25 TH AUGUST 1992, PROPERTY IN THE SAME PREMISES WERE SOLD AT ` 64,25,000, AND THE RATE PER SQ.FT. WAS ` 4,867. THE ISSUE IS, WHETHER UNREGISTERED DOCUMENT S LOOSELY WRITTEN ON A ` 5 STAMP PAPER, BETWEEN THE PARTIES CAN BE TAKEN AS A MRS. ALKA RAGHUNATH NADKARNI ITA NO.4465/MUM./2009 ITA NO.4481/MUM./2009 7 COMPARABLE SALE INSTANCES? NO FACTORS ARE MENTIONED IN THIS DOCUMENT. IT IS WELL SETTLED LAW THAT IMMOVABLE PROPERTY CAN BE TRA NSFERRED OR CONVEYED ONLY THROUGH A REGISTERED SALE DEED. THUS, IN OUR C ONSIDERED OPINION, THE COMPARABLE SALE INSTANCES ADOPTED BY THE ASSESSING OFFICER I.E., UNREGISTERED SALE AGREEMENT DATED 2 ND JULY 1984, CANNOT BE TAKEN AS A COMPARABLE AS OF NO FAIR MARKET VALUE AS PER GOVERNMENT REGISTER KEP T WITH THE SUB-REGISTRAR IS GIVEN; (B) PROPERTY IS CONVEYED BY WAY OF THIS U NREGISTERED SALE AGREEMENT; AND (C) THE RATE IS MUCH LESS THAN THE R ATE MENTIONED IN THE VALUATION GUIDANCE REPORT OF THE GOVERNMENT OF MAHA RASHTRA. 10. COMING TO THE OTHER COMPARABLE SALE INSTANCES IN TH E YEAR 1992, THE PRICE PER SQ.FT. BUILT UP WAS ` 4,867 PER SQ.FT. AND IN THE YEAR 1993, IT WAS ` 4,924 PER SQ.FT., ETC. IN THE CIRCULAR ISSUED BY TO WN PLANNING AND VALUATION DEPARTMENT, IT IS STATED AS FOLLOWS:- CIRCULAR AS PER THE CIRCULAR ISSUED BY THE HONBLE INSPECTOR GENERAL OF REGISTRATION AND CONTROLLER OF STAMPS, PUNE, VIDE H IS LETTER DATED 10 TH AND 14 TH AUGUST 1989, BEARING NO.5, VALUATION/PK 257/6516-6 616, NECESSARY INSTRUCTIONS ARE GIVEN TO FIND OUT WHETHE R THE DOCUMENTS EXECUTED AFTER 1981 ARE AS PER THE MARKET VALUE OR NOT. HOW THE SAME CAN BE VARIFIED FROM THE READY RECKNOR OF 1989. THI S INSTRUCTION IS ABOUT THE MARKET VALUE FOR THE YEAR 1981 ONLY. ON 2 6.9.1989, UNDER THE CHAIRMANSHIP OF HONBLE INSPECTOR GENERAL OF RE GISTRATION AND CONTROLLER OF STAMPS A MEETING OF ALL THE COMPETENT AUTHORITIES OF PUNE WAS CONDUCTED TO RESOLVE THE ISSUE OF DETERMIN ATION OF MARKET VALUE FOR THE YEAR 1981 TO 1989. IN THIS RESPECT, I T WAS DECIDED TO TAKE THE READY RECKNOR VALUE OF 1989 AS A BASE VALUE AND DETERMINE THE OTHER YEARS VALUATION ON THE BASIS OF APPLIED PERCE NTAGE OF RESPECTIVE YEARS. YEAR % OF THE AMOUNT YEAR % OF THE AMOUNT 1981 40% 1982 45% 1983 50% 1984 55% 1985 60% 1986 70% 1987 80% 1988 90% 1989 100% - - - - SD/- (G.L. MADAME) JT. DIRECTOR TOWN PLANNING, VALUATION, PUNE MRS. ALKA RAGHUNATH NADKARNI ITA NO.4465/MUM./2009 ITA NO.4481/MUM./2009 8 APPLYING THE CIRCULAR TO THE SALE INSTANCES, THE M ARKET VALUE AS ON 1 ST APRIL 1981, CAN BE ARRIVED AT AS FOLLOWS:- WORKING OF FAIR MARKET VALUE AS ON 1 ST APRIL 1981 BY REVERSE INDEXATION SALE DATE AREA SQ.FT. CARPET AREA SQ.FT. BUILT-UP CONSIDE- RATION ( ` ) PRICE PER SQ.FT. BUILT UP ( ` ) REVERSE INDEX DERIVED FMV AS ON 1.4.1981 ( ` /SQ.FT.) 25.8.1992 1100 1320 6425000 4867 100/223 2183 23.2.1993 1100 1320 6500000 4924 100/223 2208 19.7.1998 1100 1320 12500000 9470 100/351 2698 16.8.1999 1100 1320 10000000 7576 100/389 1947 23.7.2004 (SOLD BY ASSESSEE) 1100 1320 15800000 11970 100/480 2494 THIS DEMONSTRATES THAT THE VALUATION GIVEN BY THE ASSESSEE IS FAIR AND HIGHLY REASONABLE. THE METHODOLOGY SPECIFIED BY THE AUTHORITY CONCERNED IN THE CIRCULAR HAS TO BE ACCEPTED. EVEN GOING BY THE MARKET VALUE GIVEN BY THE STAMP DUTY READY RECKNOR FOR THE YEAR 1990 I.E., ` 3,800 PER SQ.FT., ON EXTRAPOLATION, THE MARKET VALUE FOR THE YEAR 1984 W OULD WORK OUT TO ` 2,090 AND WHEREAS THE SALE INSTANCE SHOWS THE MARKET VALU E AT ` 805 PER SQ.FT. THIS DOES NOT APPEAR TO BE CORRECT. THE FAIR MARKET VALUE AS ON 1 ST APRIL 1981, STATED BY THE ASSESSEE IS SUPPORTED BY A REPO RT OF AN EXPERT AND WHEREAS THE ASSESSING OFFICER HAS NO EXPERT OPINION TO NEGATE THIS REPORT. ON THIS FACTUAL MATRIX, IN VIEW OF THE ABOVE DISCUS SION, WE ARE OF THE CONSIDERED VIEW THAT THE FAIR MARKET VALUATION DISC LOSED BY THE ASSESSEE AS ON 1 ST APRIL 1981, HAS TO BE UPHELD. HENCE, WE SET ASIDE THE ORDER OF THE COMMISSIONER (APPEALS) AND DELETE THE ADDITION MADE WHILE COMPUTING CAPITAL GAINS BY THE ASSESSING OFFICER AS UPHELD BY THE COMMISSIONER (APPEALS). MRS. ALKA RAGHUNATH NADKARNI ITA NO.4465/MUM./2009 ITA NO.4481/MUM./2009 9 11. COMING TO THE REVENUES APPEAL, BOTH THE PARTIES AG REE BEFORE US THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF MUMBAI SPECIAL BENCH IN DCIT V/S MA NJULA J. SHAH, (2009) 318 ITR (AT) 417 (SB) (MUM.), AND RESPECTFULLY FOLL OWING THE SAME, WE DISMISS THE GROUND RAISED BY THE REVENUE. 12. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED AND REV ENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH MAY 2011. SD/- R.S. PADVEKAR JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 20 TH MAY 2011. COPY TO : (1) THE ASSESSEE (2) THE RESPONDENT (3) THE CIT(A), MUMBAI, CONCERNED (4) THE CIT, MUMBAI CITY CONCERNED (5) THE DR, A BENCH, ITAT, MUMBAI TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI