PRAKASH SHANTILAL PAREKH, MUMBAI V. ITO 19(2)(4), MUMBAI

ITA 4625/MUM/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8180 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 07-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DISSATISFIED
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Capital asset; Tangible material; Fair market value; Reason to believe
• Section: 50C; 2(14); 142(1); 234B; 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI JH FOT; IKY JKO U;KF;D LNL; JH FOT; IKY JKO U;KF;D LNL; JH FOT; IKY JKO U;KF;D LNL; JH FOT; IKY JKO U;KF;D LNL; ,OA ,OA ,OA ,OA JH JH JH JH UJSUNZ DQEKJ FCYYS;K UJSUNZ DQEKJ FCYYS;K UJSUNZ DQEKJ FCYYS;K UJSUNZ DQEKJ FCYYS;K] YS[KK LNL; DS LE{K ] YS[KK LNL; DS LE{K ] YS[KK LNL; DS LE{K ] YS[KK LNL; DS LE{K BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER VK;DJ VIHY LA[;K / ITA NO.4625/MUM/2014 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR: - 2005-06 MR. PRAKASH SHANTILAL PAREKH 903, 9 TH FLOOR, KAMLESHWARI-II, TPS-II, TAGORE ROAD, SANTACRUZ, (WEST) MUMBAI - 400054. VS.` THE INCOME TAX OFFICER - 19(2)(4) PIRAMAL CHAMBERS, LALBAUG, MUMBAI. PAN:- AACPP2967P APPELLANT RESPONDENT ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 13.05.2014 OF CIT(A) FOR THE A.Y. 2005-06. THE ASSESSEE HAS RA ISED FOLLOWING GROUNDS IN THIS APPEAL:- 1. BEING AGGRIEVED AND DISSATISFIED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL)-30, MUMBAI IN APPEAL NO.CIT(A) -30ILTO-19(2)(4)/IT- 46/13-14 CIT-(APPEAL)) DATED SO' MAY 2014 FOR ASSES SMENT YEAR 2005-2006, THE APPELLANT APPROACHED THIS HON'BLE AUTHORITY THE REBY CHALLENGING THE ASSESSEE BY / FU/KKZFJRH DH VKSJ LS FU/KKZFJRH DH VKSJ LS FU/KKZFJRH DH VKSJ LS FU/KKZFJRH DH VKSJ LS SHRI SANJIV M. SHAH REVENUE BY/ JKTLO DH VKSJ LS JKTLO DH VKSJ LS JKTLO DH VKSJ LS JKTLO DH VKSJ LS SMT. PARMINDER DATE OF HEARING 02.09.2014 DATE OF PRONOUNCEMENT 19.09.2014 MR. PRAKASH SHANTILAL PAREKH 2 | P A G E VALIDITY OF THE SAID ORDER, ON THE FOLLOWING AMONGS T THE OTHER GROUNDS WHICH ARE WITHOUT PREJUDICE TO ONE ANOTHER:- A. THE LEARNED CIT (APPEAL) ERRED IN CONFIRMING THE ORDER OF THE LEARNED ASSESSING OFFICER ITO - 19(2)(4), MUMBAI PA SSED U/S.144 R.W.S.147 OF THE INCOME TAX ACT, 1961 (THE ACT) DATE D 20TH MARCH 2013; B. THE LEARNED CIT (APPEAL) ERRED IN CONFIRMING THE T OTAL INCOME OF THE APPELLANT AT RS.49,91 ,250/-; C. THE LEARNED CIT (APPEAL) ERRED IN CONFIRMING THE C APITAL GAIN ARISING ON SALE OF RESIDENTIAL FLAT IN ROSHNI APARTMENT IN THE ASSESSMENT YEAR 2005-2006 AS SHORT TERM CAPITAL GAIN AGAINST OFFERE D BY THE ASSESSEE IN THE ASSESSMENT YEAR 2008-2009 AS LONG TERM CAPITAL GAIN; D. THE LEARNED CIT (APPEAL) FURTHER ERRED IN HOLDING THAT THE DATE OF ALLOTMENT IS THE DATE WHEN THE RIGHT OF CONVEYANCE GETS VESTED BY AGREEMENT DATED 21ST OCTOBER 2004 WHICH IS 'CAPITAL ASSET' UNDER SECTION 2(14) OF THE ACT. HENCE, THE GAIN ARISING O N THE SALE OF THE SAID PROPERTY IS TO BE CONSIDERED AS SHORT TERM CAPITAL G AIN AND RIGHTLY ASSESSED IN ASSESSMENT YEAR 2005- 2006 AS AGAINST O FFERED BY THE APPELLANT IN ASSESSMENT YEAR 2008-2009; E. THE LEARNED CIT (APPEAL) FURTHER ERRED IN FOLLOWIN G THE DECISION OF THE BOMBAY HIGH COURT IN CASE OF CIT VS TATA TELE SERV ICES LIMITED (122 ITR 594) AND VARIOUS OTHER DECISIONS CITED IN P ARA 4.4.3 AT PAGE 18 OF THE APPELLATE ORDER; F. THE LEARNED CIT (APPEAL) ERRED IN ASSESSING THE CA PITAL GAIN ARISING OUT OF THE SALE OF THE RESIDENTIAL FLAT IN ROSHNI A PARTMENT BASED ON THE FAIR MARKET VALUE ARRIVED AT RS.1,59,00,000/- BY OV O UNDER SECTION 55A R. W. SECTION 50C OF THE ACT AND ERRED IN ASSESSING THE SAID CAPITAL GAIN AS THE SHORT TERM CAPITAL GAIN AT RS.47,30,850/-; G. THE LEARNED CIT (APPEAL) FURTHER ERRED IN CONFIRMING THE LEVY OF INTEREST UNDER SECTIONS 234A AND 234B OF THE ACT. MR. PRAKASH SHANTILAL PAREKH 3 | P A G E 2. GROUND NO. 1 (A) IS REGARDING VALIDITY OF RE-O PENING OF ASSESSMENT. IN THIS CASE THE ASSESSEE HAD NOT FILED RETURN OF INCOME FO R THE ASSESSMENT YEAR UNDER CONSIDERATION. ON THE BASIS OF INFORMATION FROM ANN UAL INFORMATION REPORT FROM NON-FILERS, THE ASSESSING OFFICER FOUND THAT THE AS SESSEE HAD SOLD/PURCHASED IMMOVABLE PROPERTY VALUED AT RS. 1.55 CRORES. THE A SSESSING OFFICER ISSUED A LETTER DATED 19.03.2012 TO THE ASSESSEE TO FURNISH THE DETAILS OF RETURN OF INCOME FOR THE A.Y. 2005-06 ALONG WITH SOURCES OF INVESTME NT/EXPENDITURE WITH SUPPORTING DOCUMENTARY EVIDENCES. THE ASSESSEE DID NOT RESPOND TO THE LETTER ISSUED BY THE ASSESSING OFFICER. ACCORDINGLY THE AS SESSING OFFICER ISSUED A NOTICE U/S 148 DATED 30.03.2012 BY RECORDING THE REASONS THAT IT HAD REASON TO BELIEVE THAT INCOME OF THE ASSESSEE CHARGEABLE TO TAX OF RS . 1.55 CRORE HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE INCOME TAX ACT DUE TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FUL LY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT. IN RESPONSE THE ASSESSEE VIDE ITS LETTER DATED 19.05.2012 STATED THAT THE RETURN IS UNDER PREPARAT ION AND REQUESTED FOR EXTENSION OF TIME FOR FILING THE RETURN OF INCOME BY 20 DAYS. SINCE THE ASSESSEE DID NOT FILE THE RETURN OF INCOME WITHIN 20 DAYS TI ME AS REQUESTED, THE ASSESSING OFFICER FRAMED ASSESSMENT U/S 144 R.W.S 147 AND THE REBY ASSESSED THE TOTAL INCOME AT RS. 49,91,250/- INCLUSIVE OF SHORT TERM CAPITAL GAIN OF RS. 47,30,850,/- FROM SALE OF IMMOVABLE PROPERTY. THE ASSESSEE CHALL ENGED THE ACTION OF ASSESSING OFFICER BEFORE CIT(A), INCLUDING THE VALIDITY OF AS SESSMENT. THE OBJECTION OF THE ASSESSEE AGAINST THE RE-OPENING OF THE ASSESSMENT H AS BEEN DISMISSED BY THE CIT(A). MR. PRAKASH SHANTILAL PAREKH 4 | P A G E 3. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE CIT(A) IN PARA 2.3.1 AND 2. 3.2 AS UNDER:- 2.3.1. THE APPELLANTS WRITTEN SUBMISSION :- 1. THE AO ISSUED NOTICE U/S.148 DATED 30.03.2012. THER EAFTER, NOTICE 142(1) DATED 28.06.2012 WAS ISSUED ALONGWITH THE REASONS FOR REOPENING. IN THE REASONS, AO MENTIONED THAT HE HAS REASON TO BELIEVE THAT THE INCOME CHARGEABLE TO TAX OF RS.1,55,00,000/- HAS ESCAPED A SSESSMENT [ COPY OF THE REASONS ENCLOSED (PAGES NO. 51 TO 4). A PERUSAL OF THE REASONS WOULD REVEAL THAT THOUGHT IT HAS BEEN STATED THAT THE AO HAD FORM ED BELIEF OF ESCAPEMENT OF INCOME ON ACCOUNT OF NON-FILING OF THE RETURN OF INCOME, THE AO HAS COMPLETELY IGNORED THE FACT THAT THE CAPITAL GAIN O N APPELLANT'S SHARE OUT OF SALE OF THE SAID IMMOVABLE PROPERTY WAS ALREADY OFF ERED FOR TAX IN THE A. Y. 2008-09. THUS, THERE IS NO QUESTION OF ESCAPEMENT OF INCOME AS ALLEGED BY THE LEARNED AO. HENCE, IT IS SUBMITTED THAT THE REASONS RECORDED U/ S.148 WERE NOT IN ACCORDANCE WITH THE LAW. 2. IN VIEW OF ABOVE, IT IS RESPECTFULLY SUBMITTED TH AT THE REOPENING OF ASSESSMENT IS NOT VALID IN LAW. 2.3.2 THE APPELLANT, VIDE WRITTEN SUBMISSIONS DTD. 12. 05.14 ON THE ABOVE GROUND OF APPEAL HAS FURTHER STATED AS UNDER: 1. 'ROSHNI CO-OPERATIVE HOUSING SOCIETY HAD ENTERED INTO AN AGREEMENT WITH CONTRACTOR SAPPHIRE LAND DEVELOPMENT PRIVATE LIMITE D ON 5TH APRIL 2004 FOR THE RECONSTRUCTION OF THE ENTIRE BUILDING AND ACCOR DINGLY ALL THE MEMBERS OF THE SAID SOCIETY HAD PASSED RESOLUTION ON 2ND NOVEMB ER 2003 TO DEMOLISH THE EXISTING BUILDING AND CONSTRUCT A NEW BUILDING IN WHICH ALL THE EXISTING MEMBERS WILL BE ALLOTTED THE FLATS EQUAL TO THE ARE A WHICH THEY WERE HOLDING AND OCCUPYING AND IN ADDITION THERETO ALSO THE PROP ORTIONATE FURTHER AREA BY UTILIZING TOR IN RESPECT OF THE PROPERTY AS RECEIVIN G LAND AT AGREED LUMPSUM CONSTRUCTION COST AT RS.1200/- PER SQ. FT. (BUILT-UP ) OF THE CONSTRUCTED AREA I.E. RS.251/- FOR LABOUR AND SERVICES AND RS.949/- TOWARD S REIMBURSEMENT OF COST OF CONSTRUCTION MATERIALS. IN ADDITION TOR COST OF RS.1500/- PER SQ. FT. WAS TO BE PAID BY THE MEMBERS TO THE CONTRACTORS. C OPY OF THE CONSTRUCTION CONTRACT IS ENCLOSED (PAGES NO.1 TO 14). THE ASSESS EE AND HIS BROTHER MR. KISHORE PAREKH HAD PAID THE ENTIRE PROPORTIONATE AMO UNT FOR THE TOR / FSI TO THE CONTRACTOR AND HAD PAID THE CONSTRUCTION COS TS AS AND WHEN DEMANDED BY THE CONTRACTOR. THE ASSESSEE AND HIS BROTHER MR. KISHORE PAREKH WITH THE PERMISSION OF THE SOCIETY,OMBINE FLATS, THEY HAVE B EEN ALLOTTED FLAT NOS. 1101 AND 1201, ADMEASURING 3100 SQ. FT. SALEABLE AREA ALO NGWITH THE ATTACHED MR. PRAKASH SHANTILAL PAREKH 5 | P A G E TERRACE ON THE 12 TH FLOOR ADMEASURING 250 SQ. FT. CARPET AREA AND TWO CAR PARKING SPACES BEARING NOS. 7 AND 8 IN THE STILT PO RTION OF THE SAID NEW BUILDING. 2. THE ASSESSEE DECLARED THE LONG TERM CAPITAL GAIN ON THE SALE OF SHARE IN THE FLAT IN ROSHNI APARTMENT 'IN THE ASSESSMENT YEAR 200 8-2009 AND PAID THE TAXON IT @20% AGGREGATING TO RS.1,75,979/-. COPY OF THE ACKNOWLEDGMENT OF RETURN ALONGWITH THE COMPUTATION OF INCOME FOR A. Y .2008-09 IS ENCLOSED (PAGES NO.33 TO 40) 3. THE ASSESSMENT FOR A. Y.2005-06 WAS REOPENED UNDE R SECTION 147 OF THE ACT BASED ON AIR INFORMATION REGARDING SALE OF FLAT IN ROSHNI APARTMENT IN VIEW OF THE NON-FILING OF INCOME TAX RETURN FOR THE PREV IOUS YEAR RELEVANT TO ASSESSMENT YEAR 2005-2006. COPY OF THE RETURN OF INCO ME FILED IN PURSUANT TO NOTICE ULS.148 IS ANNEXED HEREWITH (PAGES NO.41 TO 50) THE LEARNED AO ASSESSED THE CAPITAL GAIN ON THE IMPUGNED TRANSACTI ON AS SHORT TERM CAPITAL GAIN OF RS.47,30,850/- IN THE ASSESSMENT YEAR 2005-20 06 AND PASSED THE ASSESSMENT ORDER UNDER SECTION 144 R.W. SECTION 147 OF THE ACT DATED 20TH MARCH 2013 ASSESSING THE INCOME OF THE APPELLANT AT RS.49,91,250/- RESULTING INTO HARSH GROSS INCOME TAX DEMAND OF RS.32,32,/- ( INCL. INTEREST ULS.234A RS.47,931/- AND 2348 RS.15,33, 792/-). THE IMPUGNED APPEAL BEFORE YOUR HONOUR IS AGAINST THE ASSESSMENT OF SHORT TERM CAPI TAL GAIN BY THE LEARNED AO IN THE ORDER ULS.144 R.W. SEC.147 OF THE I. T.ACT , 1961 IN THE A. Y.2005-06 IGNORING THE FACT THAT SAID INCOME IS ALREADY OFFER ED AS LONG TERM CAPITAL GAIN IN A. Y. 2008-09. 4. THE ONLY OBJECTION OF THE ASSESSEE AGAINST THE R E-OPENING IS THAT THE ASSESSEE HAS OFFERED CAPITAL GAIN FROM THE SALE OF IMMOVABLE PROPERTY IN THE A.Y 2008-09. 5. ON THE OTHER HAND, THE LD. DR HAS RELIED UPON TH E ORDERS OF AUTHORITIES BELOW AND SUBMITTED THAT WHEN THERE IS NO RETURN OF INCOME FILED BY THE ASSESSEE EITHER PRIOR TO THE NOTICE U/S 148 OR SUBSEQUENT TO THE NOTICE U/S 148 THEN THE ASSESSEE CANNOT RAISE ANY OBJECTION AGAINST THE RE- ASSESSMENT BASED ON THE INFORMATION AND MATERIAL RECEIVED BY THE ASSESSING OFFICER FROM AIR INFORMATION. MR. PRAKASH SHANTILAL PAREKH 6 | P A G E 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE ASSESSEE HAS N OT FILED ANY RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. THE AS SESSING OFFICER RECEIVED INFORMATION REGARDING PURCHASE AND SALE OF IMMOVABL E PROPERTY BY THE ASSESSEE. THE ASSESSEE HAS NOT DISPUTED THE TRANSACTIONS OF S ALE AND PURCHASE OF THE IMMOVABLE PROPERTY IN QUESTION. WE FURTHER NOTE THA T THE ASSESSING OFFICER ISSUE NOTICE U/S 148 AFTER TAKING THE NECESSARY APPROVAL OF ASSISTANT COMMISSIONER OF INCOME TAX, AS WELL AS RECORDING THE REASONS TO BEL IEVE THAT THE INCOME OF THE ASSESSEE CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE QUESTION OF TAXABILITY OF THE INCOME DURING THE YEAR UNDER CONSIDERATION IS A SUBJECT MATTER OF EXAMINATION AND INVESTIGATION. WHAT IS REQUIRED AT THE STAGE OF REOPENING IS PRIMA FACIE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IN THIS CASE THE DOCUMENTS OF SALE HAS BEEN EXECUTED D URING THE YEAR UNDER CONSIDERATION, THEREFORE, THE ASSESSING OFFICER HAD A TANGIBLE MATERIAL AND INFORMATION TO BELIEVE THAT THE INCOME CHARGEABLE T O TAX TO THE EXTENT OF SALE CONSIDERATION HAS ESCAPED ASSESSMENT AS THE ASSESSE E HAS FAILED TO DISCLOSE TRULY AND FULLY ALL MATERIAL FACTS NECESSARY FOR ASSESSME NT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. SINCE THE ASSESSEE HAS NOT FIL ED ANY RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DESPITE HAVING ENTERED INTO SALE AGREEMENT FOR THE FLAT IN QUESTION, THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER HAD VALID AND COGENT REASON AND TANGIBLE MATERIAL TO BE LIEVE THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY REASONS OF FAILURE ON THE PART OF THE ASSESSEE TO FURNISH TRULY AND FULLY ALL MATERIAL FA CTS NECESSARY FOR ASSESSMENT. ACCORDINGLY, WE DO NOT FIND ANY MERIT OR SUBSTANCE IN THE OBJECTION OF THE ASSESSEE AGAINST THE VALIDITY OF RE-OPENING OF ASSE SSMENT. MR. PRAKASH SHANTILAL PAREKH 7 | P A G E GROUND NO. 1 (B) TO (E). 7. THE ASSESSEE PURCHASED FLAT NO. 3 IN ROSHNI COOP ERATIVE HOUSING SOCIETY, PLOT NO. 380, 15 TH ROAD, BANDRA (W), MUMBAI VIDE AGREEMENT DATED 08-0 9-2003. THE SAID SOCIETY BUILDING COMPRISING OF GROUND PLUS 2 UPPER FLOORS CONSISTING OF 12 FLATS. SUBSEQUENTLY THE SOCIETY VIDE ITS GENERAL BODY MEETING HELD ON 02 ND NOVEMBER 2003, DECIDED TO REDEVELOP THE SAID PROPER TY BY CONSTRUCTING A NEW BUILDING BY USING AND CONSUMING THE FULL DEVELOPMEN T POTENTIAL OF THE SAID PROPERTY I.E. FSI AND TRANSFERABLE DEVELOPMENT RI GHTS (TDR). IT WAS RESOLVED THAT EACH OF EXISTING MEMBER ENTITLED TO A FLAT IN THE NEW BUILDING OF THE ACTUAL AREA PRESENTLY OCCUPITED BY THEM AND IN ADDITION TH ERETO FURTHER AREA EQUIVALENT TO THE PROPORTIONATE SHARE OF THE MEMBER IN THE T DR. ACCORDINGLY, THE SOCIETY UNDER THE RE-DEVELOPMENT PLAN ALLOTED A FLAT IN THE NEW BUILDING TO THE ASSESSEE TO BE DEVELOPED BY SAPPHIRE LAND DEVELOPERS PVT. LTD. THE REDEVELOPMENT WAS APPROVED UNDER THE URBAN LAND CEILING ACT VIDE ORDE R DATED 30.12.2003. THE COMMENCEMENT CERTIFICATE WAS ISSUED ON 8.06.2004. T HE ASSESSEE ALONG WITH HIS BROTHER MR. KISHORE S. PAREKH WHO ALSO OWNED A FLAT NO. 9 IN THE SAID SOCIETY ENTERED INTO AN AGREEMENT DATED 21 ST OCTOBER 2004 TO SALE THEIR RESPECTIVE FLATS IN THE NEW BUILDING AGAINST THE CONSIDERATION OF RS. 1 .55 CRORE. THE ASSESSING OFFICER ASSESSED THE GAIN ARISING FROM PURCHASE AND SALE O F THE FLAT IN THE ROSHNI COOPERATIVE HOUSING SOCIETY BY THE ASSESSEE AS SHOR T TERM CAPITAL GAIN BASED ON THE SALE AGREEMENT DATED 21.10.2004. THE ASSESSEE C HALLENGED THE ASSESSMENT OF SHORT TERM CAPITAL GAIN BY THE ASSESSING OFFICER ON THE GROUND THAT THE TRANSACTION OF SALE OF FLAT WAS NOT COMPLETED DURIN G THE YEAR UNDER CONSIDERATION AS THE POSSESSION WAS HANDED OVER ONLY AFTER CONST RUCTION OF THE NEW BUILDING MR. PRAKASH SHANTILAL PAREKH 8 | P A G E AND, THEREFORE, THE LONG TERM CAPITAL GAIN HAS ARIS EN FROM THE TRANSACTION OF SALE OF FLAT WHICH HAS BEEN OFFERED BY THE ASSESSEE FOR THE A.Y. 2008-09. 8. THE CIT(A) DID NOT AGREE WITH THE CONTENTION OF THE ASSESSEE. IT WAS OBSERVED BY CIT(A) THAT AS PER THE TERMS OF THE SAL E AGREEMENT DATED 21 ST OCTOEBR 2004, THE ASSESSEE WAS TO HAND OVER THE POSSESSION OF THE PROPERTY WHICH HAD TO TAKE PLACE ON OCCURRENCE OF CONSTRUCTION OF THE FLA T BY 10.09.2005 AND ON RECEIPT OF BALANE AMOUNT OF SALE PRICE. CIT(A) NOTED THAT T HESE CONDITIONS DO NOT AFFECT THE TRANSFER OF RIGHTS IN THE PROPERTY BY THE ASSES SEE AND HIS BROTHER. IN SUPPORT OF ITS FINDING, THE CIT(A) HAS RELIED UPON THE DECI SION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. TATA TELESERVICES LTD. [1980] 122 ITR 594 (BOM). HENCE THE CIT(A) HELD THAT THE AGREEMENT DATED 21 ST OCTOBER 2004 GIVES THE PURCHASER RIGHT TO TAKE CONVEYANCE OF THE PROPERTY MENTIONED THEREIN SO THAT IT BECOMES AN ASSET U/S 2(14) OF THE ACT. 9. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS SUBMITTED THAT THE INGREDIENTS OF SECTION 2(47)(V) R.W.S 53A OF THE TRANSFER OF PROPERTY ACT ARE NOT SATISFIED IN ASSESSEES CASE IN AS MUCH AS POSSESSION OF THE FLAT IN QUESTION HAS NOT BEEN GIVEN IN THE ASSESSMENT YEAR UNDER CON SIDERATION BUT IT WAS GIVEN IN THE ASSESSMENT YEAR 2008-09 (APRIL 2007). THUS THE LD. AUTHORIZED REPRESENTATIVE HAS SUBMITTED THAT NO TAXABLE EVENT EMANATED IN THE YEAR UNDER CONSIDERATION. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF HONBLE HIGH COURT IN THE CASE OF ZUARI ESTATE 271 ITR 269 (BOM) . THE LD. AUTHORIZED REPRESENTATIVE HAS REFERRED VARIOUS CLAU SES OF THE AGREEMENT AND SUBMITTED THAT AS PER THE CONDITION OF AGREEMENT, T HE ASSESSEE/VENDORS TO ENSURE THE CONSTRUCTION OF THE SAID BUILDING IS AND WILL B E CARRIED OUT AND COMPLETED AS PER THE SANCTIONED PLAN. THE VENDORS SHALL BE RESPO NSIBLE FOR ENSURING THAT THERE MR. PRAKASH SHANTILAL PAREKH 9 | P A G E SHOULD BE NO BREACH OF ANY RULE OR REGULATION OF TH E CONSTRUCTION BY THE CONTRACTOR WHILE CONSTRUCTING THE BUILDING. HE HAS FURTHER SUBMITTED THAT AS PER THE CLAUSE 10 OF AGREEMENT IT IS AGREED THAT THE VE NDORS UPON FULL PAYMENT, HAVING BEEN MADE BY THE PURCHASER, SHALL SIGN, EXECUTE AND DELIVER ALL NECESSARY APPLICATIONS, PAPERS AND WRITING TO BE MADE TO THE SAID SOCIETY FOR ACCEPTING AND RECOGNIZING THE PURCHASER AS MEMBER OF THE SOCIETY. IT WAS ALSO AGREED UPON BETWEEN THE PARTIES THAT TILL THE FULL PAYMENT IS M ADE BY THE PURCHASER TO THE VENDORS, THE PURCHASER SHALL NOT BE ENTITLED TO DEM AND AND/OR REQUIRE THE VENDORS TO SIGN, EXECUTE AND DELIVER TO THE PURCHAS ER THE APPLICATION AND OTHER WRITINGS FOR TRANSFER OF THE VENDORS MEMBERSHIP IN THE SAID SOCIETY. THUS THE LD. AUTHORIZED REPRESENTATIVE HAS SUBMITTED THAT THE TR ANSACTION OF TRANSFER WAS NOT COMPLETED DURING THE YEAR AS IT WAS SUBJECTED TO FU LFILLMENT OF VARIOUS CONDITIONS INCLUDING THE FULL PAYMENT TO BE MADE BY THE PURCH ASER AND CERTAIN DOCUMENTS HAS TO BE SIGNED OR EXECUTED BY THE ASSESSEE IN ORD ER TO TRANSFER THE OWNERSHIP AND MEMBERSHIP OF THIS SOCIETY IN FAVOUR OF THE PUR CHASER. WITHOUT COMPLIANCE OF THESE NECESSARY EXECUTION OF DOCUMENTS AND APPLICAT ION, THE PURCHASER COULD NOT GET THE MEMBERSHIP OF THE SOCIETY AND TRANSFER OF THE SHARES OF THE SOCIETY IN FAVOUR OF THE PURCHASER. HE HAS FURTHER POINTED OUT THAT UPTO THE HANDING OVER OF THE POSSESSION OF THE PREMISES, THE VENDOR SHALL BO RNE AND PAY ALL TAXES DUE AND CHARGES IN RESPECT OF THE SAID PREMISES. THEREFORE , THE OWNERSHIP OF THE PREMISE WAS NOT TRANSFERRED IN THE YEAR UNDER CONSIDERATION AND IT WAS TRANSFERRED ONLY ON THE HANDING OVER OF THE POSSESSION OF THE FLAT A ND AFTER RECEIPT OF FULL CONSIDERATION. HE HAS REFERRED THE POSSESSION CERTI FICATE ISSUED BY THE LOCAL AUTHORITY AND SUBMITTED THAT ONLY ON 29.07.2008, TH E OCCUPANCY CERTIFICATE WAS GRANTED BY THE LOCAL AUTHORITY. THE LD. AUTHORIZED REPRESENTATIVE HAS FURTHER SUBMITTED THAT REVENUE HAS ACCEPTED THE LONG TERM C APITAL GAIN OFFERED BY THE MR. PRAKASH SHANTILAL PAREKH 10 | P A G E BROTHER OF THE ASSESSEE FOR THE A.Y. 2008-09 REGARD ING THE FLAT TRANSFERRED UNDER THE SAID AGREEMENT. THEREFORE, THE REVENUE CANNOT T AKE A CONTRARY VIEW IN THE CASE OF THE ASSESSEE IN RESPECT OF THE TRANSFER OF FLAT VIDE SAME AGREEMENT. EVEN OTHERWISE ONLY PART CONSIDERATION WAS RECEIVED IN T HE YEAR UNDER CONSIDERATION AND OCCUPANCY CERTIFICATE WAS ISSUED ON 29.07.2008, THEREFORE, THE TRANSACTION OF TRANSFER OF THE IMMOVABLE PROPERTY HAS NOT COMPLETE D DURING THE YEAR. HE HAS CONTENDED THAT CIT(A) HAS MISPLACED THE RELIANCE ON DECISION IN THE CASE OF CIT V. TATA TELESERVICES LTD. (SUPRA) AND THEREBY ATTEMPTE D TO RE-WRITE THE AGREEMENT BY HOLDING THAT WHAT IS TRANSFERRED IS THE RIGHT TO OBTAIN THE CONVEYANCE WHEREAS THE SUBJECT MATTER OF THE SALE IS FLAT IN THE ROSHN I COOPERATIVE SOCIETY INVOLVING BUNDLE OF RIGHTS AND REVENUE CANNOT PICK, CHOOSE A ND ISOLATE ONE OF THESE INTEGRATED AND INEXTRICABLY CONNECTED RIGHTS IN THE CAPITAL ASSET. THE ASSESSEE WAS HAVING ONLY OWNERSHIP OF THE FLAT IN THE SOCIETY AN D WHAT WAS AGREED TO TRANSFER IS THE FLAT AND NOT THE RIGHT TO OBTAIN CONVEYANCE. TH E INGREDIENTS AND CONDITIONS OF SECTION 2(14)(V) OF THE INCOME TAX ACT R.W.S 53A OF THE TRANSFER OF PROPERTY ACT., HAVE NOT BEEN FULFILLED, THEREFORE, THERE IS NOT TR ANSFER OF CAPITAL ASSET DURING THE YEAR UNDER CONSIDERATION SPECIFICALLY WHEN THE ASSE SSEE HAS NOT RECEIVED THE FULL CONSIDERATION AND THE POSSESSION OF THE FLAT WAS TO BE HANDED OVER ON RECEIPT OF FULL CONSIDERATION ON A FUTURE DATE. 10. ON THE OTHER HAND, THE LD. DR HAS RELID UPON TH E ORDERS OF AUTHORITIES BELOW AND SUBMITTED THAT WHAT HAS BEEN TRANSFERRED BY TH E ASSESSEE, IS THE RIGHT TO OBTAIN FLAT IN THE SOCIETY UNDERGOING CONSTRUCTION AND, THEREFORE, BY WAY OF AGREEMENT DATED 21 ST OCTOBER 2004, THE ASSESSEE TRANSFERRED THE SAID RI GHT IN FAVOUR OF THE PURCHASER. SHE HAS RELIED UPON THE DE CISION IN THE CASE OF TATA TELESERVICES LTD., AND SUBMITTED THAT THE HONBLE H IGH COURT HAS HELD THAT THE MR. PRAKASH SHANTILAL PAREKH 11 | P A G E WORD PROPERTY USED IN SECTION 2(14) OF THE INCOME TAX ACT IS A WORD OF WIDEST AMPLITUDE AND THE DEFINITION AS RE-EMPHASIZED THIS BY USE OF WORDS OF ANY KIND. THUS ANY RIGHT WHICH CAN BE CALLED PROPERTY WILL BE INCLUDED IN THE DEFINITION OF CAPITAL ASSET. THE LD. DR HAS FURTHER SUBMITTED T HAT CIT(A) HAS SUPPORTED HIS FINDINGS BY VARIOUS DECISIONS AS MENTIONED IN PAGE 18 OF THE IMPUGNED ORDER INCLUDING THE DECISION OF HONBLE JURISDICTIONAL HI GH COURT IN THE CASE OF CIT VS. STERLING INVESTMENT CORPORATION LTD ( 123 ITR 441), DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. JINDAS PARCHAND GANDHI (279 ITR 552) AND THE DECISION OF HONBLE ANDHRA PRADESH HIGH CO URT IN THE CASE OF M. SYAMALA RAO V. CIT ( 234 ITR 140). 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND RE LEVANT MATERIAL ON RECORD. THE QUESTION ARISES FOR OUR CONSIDERATION AND ADJUD ICATION IS WHETHER THE CAPITAL ASSET IN RELATION TO THE FLAT TO BE CONSTRUCTED IN THE ROSHNI COOPERATIVE HOUSING SOCIETY WAS TRANSFERRED BY THE ASSESSEE VIDE AGREE MENT DATED 21.10.2004 OR THE TRANSACTION OF TRANSFER WAS COMPLETED ONLY ON COMPL ETION OF CONSTRUCTION AND HANDING OVER THE POSSESSION OF THE SAID FLAT TO THE PURCHASER AND RECEIPT OF BALANCE SALE CONSIDERATION. THE ASSESSEE PURCHASED A FLAT NO. 3 IN THE ROSHNI COOPERATIVE HOUSING SOCIETY VIDE AGREEMENT DATED 8. 09.2003. SUBSEQUENTLY, THE SOCIETY DECIDED TO REDEVELOP THE BUILDING AND ALLOT TED CONSTRUCTED AREA IN THE REDEVELOPED BUILDING IN PROPORTIONATE TO THE SHARE OF EACH MEMBER PRESENTLY OCCUPIED. THE ASSESSEE AND HIS BROTHER WERE ACCORDI NGLY ENTITLED TO A FLAT EACH IN THE NEW BUILDING OF THE SOCIETY. VIDE AGREEMENT D ATED 21.10.2004, THE ASSESSEE ALONG WITH HIS BROTHER AGREED TO SELL THE RESPECTIV E FLATS IN THE SAID SOCIETY TO BE CONSTRUCTED AGAINST THE CONSIDERATION OF RS. 1.55 CRORE IN WHICH ASSESSEES SHARE MR. PRAKASH SHANTILAL PAREKH 12 | P A G E COMES TO RS. 77.50 LACS. AS PER THE TERMS OF AGREEM ENT, THE CONSIDERATION WAS TO BE PAID IN PARTS AND AT VARIOUS STAGES OF THE CONST RUCTION. 12. AS REGARDS THE SALE OF CAPITAL ASSET BEING FLAT IN THE SOCIETY, THE SAME WAS AFFECTED BY THE AGREEMENT DATED 21 ST OCTOBER 2004 BECAUSE NEITHER THERE WAS ANY EXPRESS OR IMPLIED INTENTION OF THE PARTIES TO EXEC UTE ANY SEPARATE TITLE DEED EXCEPT THE SAID AGREEMENT FOR TRANSFER OF THE TITL E OF THE FLAT IN QUESTION. THEREFORE, WHEN THERE WAS NO SUBSEQUENT TRANSFER OR INTENTION TO EXECUTE ANY TRANSFER DEED IN RESPECT OF THE FLAT IN QUESTION T HEN THE PARTIES ACCEPTED AND UNDERSTOOD THE TRANSFER OF THE FLAT BY WAY OF THE S AID AGREEMENT DATED 21.10.2004. CERTAIN TERMS AND CONDITIONS REQUIRED T O BE FULFILLED TO GIVE EFFECT TO THE SAID AGREEMENT AND TO ENFORCE THE RESPECTIVE R IGHTS OF THE PARTIES. IT IS TO BE NOTED THAT IT WAS NOT OPEN TO THE PARTIES OF THE AG REEMENT NOT TO TRANSFER THE CAPITAL ASSET IN THE SHAPE OF THE FLAT TO BE CONSTR UCTED IN THE SOCIETY. THE RIGHTS AND OBLIGATIONS IN THE AGREEMENT ARE UNAMBIGUOUS TH AT THE ASSESSEE IS ENTITLED TO RECEIVE THE FULL SALE CONSIDERATION AS AGREED BETWE EN THE PARTIES AND THE PURCHASER IS ENTITLED TO GET ALL OTHER REQUISITE DO CUMENTS TO BE SIGNED BY THE ASSESSEE FOR TRANSFER OF MEMBERSHIP IN THE SOCIETY. APART FROM THESE RESPECTIVE RIGHTS AND OBLIGATIONS OF RECEIPT OF FULL CONSIDERA TION AND MEMBERSHIP IN THE SOCIETY, THERE WAS NO DISCRETION OR OPTION WITH THE PARTIES TO REFUSE TO SALE OR PURCHASE AS THE CASE MAY BE, THE CAPITAL ASSET IN Q UESTION. THE LD. AUTHORIZED REPRESENTATIVE HAS GIVEN MUCH EMPHASIS TO THE CLAU SES OF THE AGREEMENT WHEREIN THE ASSESSEE WAS UNDER OBLIGATION TO ENSURE THE CONSTRUCTION OF THE BUILDING AS PER BUILDING BY LAWS/RULES AND THE PURC HASER WAS UNDER OBLIGATION TO PAY THE BALANCE SALE CONSIDERATION ON SATISFACTION OF SUCH OBLIGATION ON THE PART OF THE ASSESSEE. AS WE HAVE ALREADY NOTED THAT THESE T ERMS AND CONDITIONS CREATING MR. PRAKASH SHANTILAL PAREKH 13 | P A G E RIGHT AND OBLIGATION OF THE RESPECTIVE PARTIES ARE ONLY FOR PROPER ENFORCEMENT OF THE AGREEMENTS AND ARE NOT THE ESSENCE OF THE AGREE MENT RESULTING CANCELLATION OF TRANSACTION OF TRANSFER. THERE IS NO CLAUSE IN THE AGREEMENT GIVING RIGHT TO ANY PARTY TO RESCIND OR CANCEL THE AGREEMENT ON BREACH OF ANY TERM AND CONDITION, THEREFORE, THE REMEDY WITH THE PARTIES ARE ONLY TO ENFORCE THE RESPECTIVE RIGHTS AND OBLIGATION OF THE PARTIES ENUMERATED IN THE AGR EEMENT. THUS THE LANGUAGE AND CONTOURS OF THE AGREEMENT IN QUESTION MAKE IT C LEAR THAT THE PARTIES INTENDED TO TRANSFER THE CAPITAL ASSET IN QUESTION THROUGH T HE SAID AGREEMENT AND AGAINST THE SALE CONSIDERATION STIPULATED THEREIN. 13. IT IS PERTINENT TO NOTE THAT ON THE DATE OF AGR EEMENT THERE WAS NO PHYSICAL FLAT IN EXISTENCE BUT THE SUBJECT MATTER OF TRANSFE R UNDER THE AGREEMENT BEING A FLAT TO BE CONSTRUCTED IN THE NEW BUILDING IN THE R E-DEVELOPMENT PLAN OF THE SOCIETY. THE CONSTRUCTION OF THE NEW BUILDING WAS COMMENCED VIDE COMMENCEMENT CERTIFICATE DATED 08.06.2004 AND, THER EFORE, AT THE TIME OF THIS AGREEMENT DATED 21.10.2004, THE CAPITAL ASSET OWNED BY THE ASSESSEE WAS ONLY IS RIGHT TO GET A FLAT IN THE NEW BUILDING TO BE CONST RUCTED. IN SUCH A SITUATION WHAT ASSESSEE INTENDED TO SALE/TRANSFER AND PURCHASER IN TENDED TO PURCHASE WAS A FLAT TO BE CONSTRUCTED IN THE NEW BUILDING AND, THEREFOR E, THERE WAS NO QUESTION OF HANDING OVER OF THE POSSESSION WHEN THERE WAS NO PH YSICAL EXISTENCE OF ANY FLAT OR STRUCTURE. ACCORDINGLY, THE DISCHARGE OF RESPEC TIVE OBLIGATION ON A FUTURE DATE BY THE RESPECTIVE PARTIES DOES NOT AFFECT THE TRANS FER OF CAPITAL ASSET VIDE AGREEMENT DATED 21 ST OCTOBER 2004. SINCE THE FLAT WAS NOT IN PHYSICAL E XISTENCE, THEREFORE, FOR DECIDING THE ISSUE OF TRANSFER OF C APITAL ASSET IN QUESTION THE DEEMING PROVISIONS AS CONTAINED UNDER CLAUSE (V) OF SECTION 2(47) CANNOT BE APPLIED IN THIS CASE. THE CAPITAL ASSET FOR THE PU RPOSE OF SECTION 48 OF THE INCOME MR. PRAKASH SHANTILAL PAREKH 14 | P A G E TAX ACT INCLUDES ANY RIGHT IN THE ASSET. THERE IS N O DENIAL THAT THE RIGHT TO ACQUIRE FLAT IS A CAPITAL ASSET AND, THEREFORE, THE PROFIT ON TRANSFER OF SUCH RIGHT WILL BE ASSESSED AS CAPITAL GAIN. IN THE CASE IN HAND, THE ASSESSEE ACQUIRED THE FLAT IN THE SOCIETY ON 8.09.2003 AND TRANSFERRED ALL RIGHTS IN THE SAID FLAT INCLUDING THE RIGHT TO ACQUIRE THE NEWLY CONSTRUCTED FLAT VIDE AGREEMEN T DATED 21.10.2004, THEREFORE, THE CAPITAL ASSET HAS BEEN TRANSFERRED BY THE ASSES SEE WITHIN THE PERIOD OF 36 MONTHS FROM THE DATE OF PURCHASE AND HENCE THE PROF IT/GAIN ON SAID ASSET WILL BE SHORT TERM CAPITAL GAIN AND NOT LONG TERM CAPITAL G AIN. THE DEFERMENT IN PAYMENT OF SALE CONSIDERATION FOR THE REASON OF ENF ORCEMENT OF THE TERMS AND CONDITIONS OF THE AGREEMENT AND RIGHT OF THE PARTIE S IS NOT MATERIAL WHEN THERE WAS NO SUBSEQUENT TRANSFER OF TITLE EITHER INTENDED OR ACTUALLY TAKEN PLACE. IN VIEW OF THE ABOVE DISCUSSION AND FACTS AND CIRCUMST ANCES OF THE CASE WE HOLD THAT THE TRANSACTION OF TRANSFER OF CAPITAL ASSET IN QUE STION WAS COMPLETED VIDE AGREEMENT DATED 21.10.2004. 14. AS REGARDS THE CASE OF THE BROTHER OF THE ASSES SEE, WE NOTE THAT THE CAPITAL GAIN OFFERED BY THE BROTHER OF THE ASSESSEE FOR THE A.Y. 2008-09 HAS NOT BEEN EXAMINED IN THE SCRUTINY ASSESSMENT BUT THE RETURN HAS BEEN ACKNOWLEDGED U/S 143(1), THEREFORE, IT IS NOT THE CASE WHERE IN THE CASE OF THE BROTHER OF THE ASSESSEE WAS EXAMINED FOR THE A.Y. 2005-06 AND ACCE PTED THE CLAIM THAT NO CAPITAL GAIN AROSE IN THE SAID ASSESSMENT YEAR. IN FACT, THERE WAS NO RETURN OF INCOME FILED BY THE ASSESSEE AS WELL AS NO ORDER OF ASSESSMENT IN THE CASE OF THE BROTHER OF THE ASSESSEE, THEREFORE, MERE OFFERING O F THE CAPITAL GAIN FOR THE A.Y. 2008-09 BY THE BROTHER OF THE ASSESSEE WILL HAVE NO BEARING OR IMPACT ON THE ASSESSMENT IN THE CASE OF THE ASSESSEE FOR THE A.Y. 2005-06. THE LD. AUTHORIZED REPRESENTATIVE HAS RELIED UPON THE VARIOUS DECISION S ON THE POINT OF DEEMED MR. PRAKASH SHANTILAL PAREKH 15 | P A G E TRANSFER U/S 2(47)(V), WE FIND THAT THOSE DECISIONS ARE NOT APPLICABLE IN THE PECULIAR FACTS OF THE CASE IN HAND. THEREFORE, WE U PHOLD THE ORDER OF THE AUTHORITIES BELOW ON THIS ISSUE. GROUND NO. 1(F) REGARDING APPLICABILITY OF SECTION 50C OF INCOME TAX ACT. 15. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ISSUED A SHOW-CAUSE NOTICE FOR TAKING FULL VALUE CONSIDERATION IN TERMS OF SECTION 50C OF THE INCOME TAX ACT. THE ASSESSEE SUB MITTED THAT THE CASE MAY BE REFERRED TO VALUATION OFFICER U/S 50C OF THE ACT. C ONSEQUENTLY, THE ASSESSING OFFICER MADE A REFERENCE TO THE DVO U/S 55A OF THE INCOME TAX ACT FOR ASCERTAINING THE VALUE OF ASSET. THE DVO VALUED THE PROPERTY AT RS. 1.59 CRORE WHICH HAS BEEN ADOPTED BY THE ASSESSING OFFICER FOR THE PURPOSE OF COMPUTATION OF SHORT TERM CAPITAL GAIN. THE LD. AUTHORIZED REPR ESENTATIVE OF THE ASSESSEE HAS SUBMITTED THAT SECTION 50C IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE. WE FIND THAT THE SALE AGREEMENT OF THE FLAT IS SUBJECTED TO VALUATION FOR THE PURPOSE OF STAMP DUTY PAYMENT. THE STAMP DUTY AUTHORITY HAD VA LUED THE PROPERTY AT 2,57,79,461/- AGAINST THE SALE CONSIDERATION SHOWN IN THE AGREEMENT AT RS. 1.55 CRORE. THEREFORE, WHEN THE AGREEMENT ITSELF IS SUBJ ECTED TO STAMP DUTY AND VALUATION OF THE CAPITAL ASSET BEING TRANSFER THEN THE VALUE DETERMINED BY THE DVO AT THE REQUEST OF THE ASSESSEE IS JUSTIFIED AT RS. 1.59 CRORE. SECTION 50C IS APPLICABLE IN THE CASE BECAUSE THE AGREEMENT ITSELF IS SUBJECTED TO VALUATION UNDER STAMP DUTY VALUATION AUTHORITY. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE OBJECTION OF THE ASSESSEE REGARDING APPLICABILITY O F SECTION 50C. MR. PRAKASH SHANTILAL PAREKH 16 | P A G E GROUND NO. 1(G) IS REGARDING LEVY OF INTEREST U/S 2 34A AND 234B. 16. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LEVY OF INTEREST U/S 234A A ND 234B IS MANDATORY AND CONSEQUENTIAL AND NO SEPARATE FINDING IN THIS REGAR D IS REQUIRED. 17. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT TODAY I.E 19- 9-2014 SD/- SD/- ( N.K. BILLAIYA ) (VIJAY PAL RAO) (ACCOUNTANT MEMBER/ YS[KK LNL; YS[KK LNL; YS[KK LNL; YS[KK LNL; ) (JUDICIAL MEMBER/ U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; ) MUMBAI DATED 19-9 -2014 SKS SR. P.S, COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI 0BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI