ITO 19(2)(4), MUMBAI V. NIRMALA A DEORAH, MUMBAI

ITA 5533/MUM/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62167 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 08-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHWIN KUMAR MODI
• Assessee Lawyers: T P BAIRAGRA
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE PRESIDENT AND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NOS. 5578 & 5532 AND 5579 &5533/MUM/2010 ASSESSMENT YEAR : 2005-06 & 2006-07 DY. COMMISSIONER OF INCOME-TAX-19(2), APPELLANT ROOM NO. 315, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400 012. VS. SHRI ASHOK KUMAR DEORAH, RESPONDENT (PAN AAFPD9803) NIRMAL A. DEORAH (AAAPD9804F) 702, LOVE DALE APARTMENTS ROYAL LANE, JUHU TARA ROAD, SANTACRUZ (W), MUMBAI 400 049 APPELLANT BY : MR. ASHWIN KUMAR MODI RESPONDENT BY : MR. T.P. BAIRAGRA DATE OF HEARING : 27/03/2012 DATE OF PRONOUNCEMENT : 17 /04/2012 ORDER PER V. DURGA RAO, J.M.: THESE ARE THE APPEALS FILED BY THE REVENUE PERTAI NING TO TWO ASSESSEES(HUSBAND & WIFE) ARE DIRECTED AGAINST THE ORDERS OF THE CIT(A) FOR THE ASSESSMENT YEARS 2005-06 & 2006-07. SINCE IDENTICAL FACTS AND ISSUES ARE INVOLVED IN THESE APPEALS, THE Y WERE HEARD TOGETHER, AND, THEREFORE, A COMMON ORDER IS PASSED FOR THE SAKE OF CONVENIENCE. 5578 & 5532 AND 5579 & 5533/MUM/10 ASHOKKUMAR DEORAH NIRMALA A. DEORAH 2 2. SINCE THE GROUNDS RAISED BY THE REVENUE ARE COMM ON IN ALL THE APPEALS, EXCEPT THE AMOUNTS, THE GROUNDS FROM ITA NO. 5578/MUM/10 ARE R EPRODUCED BELOW:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DIRECTING TO TREAT THE SHORT TE RM CAPITAL GAIN OF RS. 14,50,041/- AS STC GAIN INSTEAD OF BUSINESS INCOME MADE BY THE AO IN HIS ASSESSMENT ORDER, IGNORING THE FACT THAT:- A) THE ASSESSEE HAS DEPLOYED BORROWED FUND WITH THE AN INTENTION OF EARNING PROFIT OF SUCH FUNDS AND THERE WAS NO INTEN TION OF THE ASSESSEE TO APPRECIATE THE INVESTMENT SO MADE DURING THE YEAR. B) THE ASSESSEE HAD NO INTENTION TO HOLD HIS SHARES IN ORDER TO EARN REGULAR INCOME OUT OF SUCH PURCHASES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS FAILED TO APPRECIATE THE IN DEPTH ANALYSIS MADE BY THE AO BEFORE TREATING THE GAINS AS BUSINESS INCOME AND THAT CIRCULAR NO. 4 OF 2007 HAS TO BE TAKEN INTO CONSIDERATION TO DECIDE WHETHER THE GAINS ARE TO BE TREATED AS SUCH OR AS BUSINESS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE TRANSACTION IS SHOWN WHETHER BY HIMSELF OR THROUGH HIS AGENT HAS TO BE TREATED AS ASSESSEES O WN TRANSACTION AND THE MOTIVE BEHIND SUCH TRANSACTION WAS TO EARN MAXIMUM PROFIT AND NOT INVESTMENT. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE AO BE RESTORED. 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO HAD OBSERVED THAT THE ASSESSEE HAD BORROWED FUNDS FROM L&T FINANCE LTD. OF RS. 65,75,985/- FOR THE INVESTMENT IN IPO OF TAT A CONSULTANCY SERVICES AND AN AMOUNT OF RS. 89,60,000/- FROM BIRL A GLOBAL FOR INVESTMENT IN IPO OF NTPC. FURTHER, THE AO OBSERVED THAT OUT OF TOTAL 'SHORT TERM CAPITAL GAIN' OFFERED BY THE ASSESSEE M ORE THAN 50% OF THE TRANSACTIONS OF PURCHASE AND SALE OF SHARES FOR A P ERIOD OF LESS THAN 4 MONTHS. THE AO ASKED THE ASSESSEE AS TO WHY THE INC OME DECLARED 5578 & 5532 AND 5579 & 5533/MUM/10 ASHOKKUMAR DEORAH NIRMALA A. DEORAH 3 UNDER THE HEAD 'SHORT TERM CAPITAL GAIN' ON SALE OF SHARES SHOULD NOT BE ASSESSED AS BUSINESS INCOME. IN REPLY, THE ASSES SEE SUBMITTED THAT SHARES WERE PURCHASED AS IN INVESTMENT AND THE SAME WERE SHOWN IN THE BOOKS OF ACCOUNT ALSO AS AN INVESTMENT. AFTER C ONSIDERING THE SUBMISSION OF THE ASSESSEE, THE AO HELD THAT THE TR ANSACTIONS ENTERED INTO BY THE ASSESSEE CANNOT BE TREATED AS INCOME OR LOSS UNDER THE HEAD 'CAPITAL GAINS'. ACCORDINGLY, THE AO TREATED THE TRANSACTIONS OF THE SHARES HELD BY THE ASSESSEE AS TRADING IN SHARE S AND INCOME SHOWN BY THE ASSESSEE UNDER THE HEAD 'SHORT TERM CA PITAL GAIN' AT RS. 14,50,011/- HAD BEEN ASSESSED AS 'INCOME FROM BUSIN ESS'. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE CARRIED THE MA TTER IN APPEAL BEFORE THE CIT(A). 3. BEFORE THE CIT(A), IT WAS SUBMITTED THAT THE ASS ESSEE HAD INVESTED IN SHARES AND THE SAME WAS SHOWN AS INVEST MENT IN ITS BOOKS OF ACCOUNT. IT WAS ALSO SUBMITTED THAT FOR AY 2004-05 THE SAME TRANSACTIONS HAD BEEN ACCEPTED BY THE DEPARTMENT AS 'CAPITAL GAIN'. BEFORE THE CIT(A), THE ASSESSEE RELIED UPON FEW CAS ES DECIDED BY THE ITAT INCLUDING THE DECISION OF THE ITAT, MUMBAI BEN CHES IN THE CASE OF GOPAL PUROHIT VS. JCIT. THE LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, HELD THAT THE THE PROF IT EARNED ON THE SALE OF SHARES INVESTED THROUGH IPO'S, ON WHICH, HU GE LOANS HAD BEEN TAKEN BY THE ASSESSEE WERE TO BE TREATED AS BUSINES S ONLY. THEREFORE, THE AMOUNT OF PROFIT ARISING ON SALE OF SHARES PURC HASED OTHERWISE THAN THROUGH IPO WERE TREATED AS 'SHORT TERM CAPITA L GAIN. AGAINST THE ORDER OF THE CIT(A), THE REVENUE CAME IN APPEA LS BEFORE THE TRIBUNAL. 5578 & 5532 AND 5579 & 5533/MUM/10 ASHOKKUMAR DEORAH NIRMALA A. DEORAH 4 4. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN AY 2004-05 AND 2006-07, THE DEPARTMENT HAS ACCEP TED THE TRANSACTIONS OF SALE AND PURCHASE HELD BY THE ASSES SEE AS INVESTOR. RELYING ON THE DECISION OF GOPAL PUROHIT VS. JCIT, [2009] 20 DTR(MUM) 99, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THA T CONSISTENCY HAS TO BE FOLLOWED. HE ALSO RELIED ON V ARIOUS DECISIONS OF THE TRIBUNAL IN SUPPORT OF ASSESSEE'S CASE, WHICH A RE AS UNDER:- 1. ACIT VS. NAISHADH V. VACHHARAJANI, ITA NO. 6429/MUM /09, ORDER DT. 25 TH FEBRUARY, 2011. 2. DCIT VS. M/S SMK SHARES & STOCK BROKING, ITA NO. 799/MUM/09, ORDER DT. 24/11/10. 3. SHRI VINOD K. NEVATIA VS. ACIT, ITA NO. 6556/MUM/09 , ORDER DATED 03/12/10. 4. SHANTILAL M. JAIN VS. ACIT, ITA NO. 2690/MUM/10, OR DER DATED 27 TH DAY OF APRIL, 2011. 5. SUNIL KUMAR GANERIWAL VS. DCIT, ITA NO. 4276/MUM/08 . 5. ON THE OTHER HAND, THE LEARNED DR CONTENDED THAT THE LD. CIT(A) FAILED TO APPRECIATE THE IN DEPTH ANALYSIS MADE BY THE AO BEFORE TREATING GAINS AS BUSINESS INCOME AND THAT CIRUCLAR NO. 4 OF 2007 HAS TO BE TAKEN INTO CONSIDERATION TO DECIDE WHETHER TH E GAINS ARE TO BE TREATED AS SUCH OR AS BUSINESS. HE FURTHER CONTENDE D THAT ALSO FAILED TO APPRECIATE THE FACT THAT THE TRANSACTION IS SHOW N WHETHER BY HIMSELF OR THROUGH HIS AGENT HAS TO BE TREATED AS A SSESSEE'S OWN TRANSACTION AND THE MOTIVE BEHIND SUCH TRANSACTION WAS TO EARN MAXIMUM PROFIT AND NOT INVESTMENT. 5578 & 5532 AND 5579 & 5533/MUM/10 ASHOKKUMAR DEORAH NIRMALA A. DEORAH 5 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES. THE ISSUE AS TO WHETHER THE PROFIT ON SALE OF SHARES CONSTITUTES BU SINESS INCOME OF THE ASSESSEE OR CAPITAL GAINS DEPENDS ON WHETHER TH E SAID SHARES WERE PURCHASED AND HELD BY THE ASSESSEE AS INVESTMENT OR STOCK IN TRADE. IN ORDER TO ASCERTAIN AS TO WHETHER THE SHARES WERE PURCHASED BY THE ASSESSEE AS INVESTMENT OR STOCK IN TRADE, THE MOST RELEVANT ASPECT THAT IS TO BE SEEN IS THE INTENTION OF THE ASSESSEE BEHIND PURCHASING AND HOLDING THE SHARES AND SUCH INTENTION HAS TO BE GATHERED FROM THE FACTS OF THE CASE INCLUDING THE CONDUCT OF THE ASSESSEE. THE TREATMENT GIVEN BY THE ASSESSEE TO THE SHARES IN IT S BOOKS OF ACCOUNT AND ACCEPTANCE OF THE SAME BY THE REVENUE IN THE EA RLIER YEARS IS ONLY ONE OF SUCH ASPECTS WHICH IS ALSO TO BE TAKEN INTO CONSIDERATION FOR DECIDING THIS ISSUE. IT IS OBSERVED THAT THE AO IN ASSESSMENT ORDER ACCEPTED THE LONG TERM CAPITAL LOSS FOR THE PERIOD FROM 01/04/2004 TO 30/09/2004 OF RS. 19,929/- AND LONG TERM CAPITAL GA IN FOR THE PERIOD FROM 01/10/2004 TO 31/03/05 (EXEMPT U/S 10(38) OF T HE ACT) OF RS. 2,44,338/-. THE AO HAS TREATED THE 'SHORT TERM CAPI TAL GAIN' OF THE ASSESSEE AS BUSINESS INCOME AMOUNTING TO RS. 14,50, 041/-. IT APPEARS FROM THE ORDER OF THE AO THAT THE AO HAS NO T PROPERLY UNDERSTOOD THE ISSUE BEFORE HIM WHETHER THE ASSESSE E IS AN INVESTOR OR A TRADER, AS IN CERTAIN TRANSACTIONS, THE AO TRE ATED THE ASSESSEE AS INVESTOR AND IN CERTAIN TRANSACTIONS TREATED THE AS SESSEE AS A TRADER. EVEN THE CIT(A) ALSO WITHOUT EXAMINING THE ISSUE PR OPERLY AND THE TRANSACTIONS HELD BY THE ASSESSEE IN SHARES TREATED AS 'SHORT TERM CAPITAL GAIN' AND IN THE INVESTMENTS MADE BY THE AS SESSEE THROUGH IPO TREATED AS BUSINESS INCOME. WE ARE, THEREFORE, OF THE OPINION THAT BOTH THE AUTHORITIES BELOW WERE NOT PROPERLY DECIDE D THE ISSUE 5578 & 5532 AND 5579 & 5533/MUM/10 ASHOKKUMAR DEORAH NIRMALA A. DEORAH 6 WHETHER THE ASSESSEE IS AN INVESTOR OR TRADER. IN T HIS CONTEXT, THE ITAT, MUMBAI BENCHES IN THE CASE OF DHANALAXMI COTE X LTD. IN ITA NO. 4579/MUM/10, ORDER DATED 23/12/2011 FOLLOWING T HE DECISION OF THE LUCKNOW BENCH OF TRIBUNAL IN THE CASE OF SARANA TH INFRASTRUCTURE (P.) LTD. VS. ACIT, 120 TTJ (LUCKNOW) 216, HELD AS UNDER:- 11. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE ISSUE AS TO WHETHER THE PROFIT ON SALE OF SHARES CONSTITUTES BUSINESS I NCOME OF THE ASSESSEE OR CAPITAL GAINS DEPENDS ON WHETHER THE SA ID SHARES WERE PURCHASED AND HELD BY THE ASSESSEE AS INVESTME NT OR STOCK IN TRADE. IN ORDER TO ASCERTAIN AS TO WHETHER THE S HARES WERE PURCHASED BY THE ASSESSEE AS INVESTMENT OR STOCK IN TRADE, THE MOST RELEVANT ASPECT THAT IS TO BE SEEN IS THE INTE NTION OF THE ASSESSEE BEHIND PURCHASING AND HOLDING THE SHARES A ND SUCH INTENTION HAS TO BE GATHERED FROM THE FACTS OF THE CASE INCLUDING THE CONDUCT OF THE ASSESSEE. THE TREATMENT GIVEN BY THE ASSESSEE TO THE SHARES IN ITS BOOKS OF ACCOUNT AND ACCEPTANC E OF THE SAME BY THE REVENUE IN THE EARLIER YEARS IS ONLY ONE OF SUCH ASPECTS WHICH IS ALSO TO BE TAKEN INTO CONSIDERATION FOR DE CIDING THIS ISSUE. HOWEVER, THAT IS NOT THE ONLY CRITERIA WHICH CAN BE ADOPTED AS A CONCLUSIVE TEST AND IT HAS TO BE TAKEN INTO CO NSIDERATION ALONG WITH OTHER CRITERIA TO ASCERTAIN THE EXACT IN TENTION OF THE ASSESSEE TO PURCHASE AND HOLD THE SHARES. IN THE CA SE OF SARNATH INFRASTRUCTURE (P).LTD. VS. ACIT REPORTED IN 120 TT J (LUCKNOW) 216, THE COORDINATE BENCH OF THIS TRIBUNAL AFTER TA KING INTO CONSIDERATION THE VARIOUS JUDICIAL PRONOUNCEMENTS O N THIS ISSUE AS WELL AS THE RELEVANT CIRCULAR ISSUED BY THE BOAR D, HAS LAID DOWN THE FOLLOWING PRINCIPLES/CRITERIAS WHICH CAN B E APPLIED TO THE FACTS OF THE CASE TO FIND OUT WHETHER THE TRANS ACTIONS IN SHARES ARE IN THE NATURE OF TRADE OR ARE MERELY FOR THE INVESTMENT PURPOSES : (1) WHAT IS THE INTENTION OF THE ASSESSEE AT THE T IME OF PURCHASE OF THE SHARES (OR ANY OTHER ITEM). THIS CAN BE FOUN D OUT FROM THE TREATMENT IT GIVES TO SUCH PURCHASE IN ITS BOOKS OF ACCOUNT. WHETHER IT IS TREATED AS STOCK-IN-TRADE OR INVESTME NT? WHETHER SHOWN IN OPENING/CLOSING STOCK OR SHOWN SEPARATELY AS INVESTMENT OR NON-TRADING ASSET? (2) WHETHER ASSESS EE HAS BORROWED MONEY TO PURCHASE AND PAID INTEREST THEREO N. NORMALLY, 5578 & 5532 AND 5579 & 5533/MUM/10 ASHOKKUMAR DEORAH NIRMALA A. DEORAH 7 MONEY IS BORROWED TO PURCHASE GOODS FOR THE PURPOSE OF TRADE AND NOT FOR INVESTING IN AN ASSET FOR RETAINING. (3 ) WHAT IS THE FREQUENCY OF SUCH PURCHASES AND DISPOSAL IN THAT PA RTICULAR ITEM? IF PURCHASE AND SALE ARE FREQUENT, OR THERE ARE SUB STANTIAL TRANSACTIONS IN THAT ITEM, IT WOULD INDICATE TRADE. HABITUAL DEALING IN THAT PARTICULAR ITEM IS INDICATIVE OF IN TENTION OF TRADE. SIMILARLY, RATIO BETWEEN THE PURCHASES AND SALES AN D THE HOLDINGS MAY SHOW WHETHER THE ASSESSEE IS TRADING O R INVESTING (HIGH TRANSACTIONS AND LOW HOLDINGS INDICATE TRADE WHEREAS LOW TRANSACTIONS AND HIGH HOLDINGS INDICATE INVESTMENT) : (4) WHETHER PURCHASE AND SALE IS FOR REALIZING PROFIT OR PURCHA SES ARE MADE FOR RETENTION AND APPRECIATION IN ITS VALUE. FORMER WILL INDICATE INTENTION OF TRADE AND LATTER, AN INVESTMENT. IN TH E CASE OF SHARES WHETHER INTENTION WAS TO ENJOY DIVIDEND AND NOT MER ELY EARN PROFIT ON SALE AND PURCHASE OF SHARES. A COMMERCIAL MOTIVE IS AN ESSENTIAL INGREDIENT OF TRADE. (5) HOW THE VALUE OF THE ITEMS HAS BEEN TAKEN IN THE BALANCE SHEET? IF THE ITEMS IN QU ESTION ARE VALUED AT COST, IT WOULD INDICATE THAT THEY ARE INV ESTMENTS OR WHERE THEY ARE VALUED AT COST OR MARKET VALUE OR NE T REALIZABLE VALUE (WHICHEVER IS LESS), IT WILL INDICATE THAT IT EMS IN QUESTION ARE TREATED AS STOCK-IN-TRADE. (6) HOW THE COMPANY (ASSESSEE) IS AUTHORIZED IN MEMORANDUM OF ASSOCIATION/ARTICLE OF ASSOCIATION? WHETHER FOR TRADE OR FOR INVESTMENT? IF AUTHORIZED ONLY FOR TRADE, THEN WHETHER THERE ARE SEPARATE RESOLUTIONS OF THE BOARD OF DIRECTORS TO CARRY OUT INVESTMENTS IN THAT COMMODIT Y? AND VICE VERSA. (7) IT IS FOR THE ASSESSEE TO ADDUCE EVIDENC E TO SHOW THAT HIS HOLDING IS FOR INVESTMENT OR FOR TRADING AND W HAT DISTINCTION HE HAS KEPT IN THE RECORDS OR OTHERWISE, BETWEEN TW O TYPES OF HOLDINGS. IF THE ASSESSEE IS ABLE TO DISCHARGE THE PRIMARY ONUS AND COULD PRIMA FACIE SHOW THAT PARTICULAR ITEM IS HELD AS INVESTMENT FOR SAY, STOCK-IN-TRADE), THEN ONUS WOUL D SHIFT TO REVENUE TO PROVE THAT APPARENT IS NOT REAL. (8) THE MERE FACT OF CREDIT OF SALE PROCEEDS OF SHARES (OR FOR THAT MATT ER ANY OTHER ITEM IN QUESTION) IN A PARTICULAR ACCOUNT OR NOT SO MUCH FREQUENCY OF SALE AND PURCHASE WILL ALONE WILL NOT BE SUFFICI ENT TO SAY THAT ASSESSEE WAS HOLDING THE SHARES FOR THE ITEMS IN QU ESTION) FOR INVESTMENT. (9) ONE HAS TO FIND OUT WHAT ARE THE LE GAL REQUISITES FOR DEALING AS A TRADER IN THE ITEMS IN QUESTION AN D WHETHER THE ASSESSEE IS COMPLYING WITH THEM. WHETHER IT IS THE ARGUMENT OF THE ASSESSEE THAT IT IS VIOLATING THOSE LEGAL REQUI REMENTS, IF IT IS CLAIMED THAT IT IS DEALING AS A TRADER IN THAT ITEM ? WHETHER IT HAD 5578 & 5532 AND 5579 & 5533/MUM/10 ASHOKKUMAR DEORAH NIRMALA A. DEORAH 8 SUCH AN INTENTION (TO CARRY ON ILLEGAL BUSINESS IN THAT ITEM SINCE BEGINNING OR WHEN PURCHASES WERE MADE? (10) IT IS P ERMISSIBLE AS PER CBDTS CIRCULAR NO. 4 OF 2007 OF 15 TH JUNE, 2007 THAT AN ASSESSEE CAN HAVE BOTH PORTFOLIOS, ONE FOR TRADING AND OTHER FOR INVESTMENT PROVIDED IT MAINTAINING SEPARATE ACCOUNT FOR EACH TYPE, THERE ARE DISTINCTIVE FEATURES FOR BOTH AND T HERE IS NO INTERMINGLING OF HOLDINGS IN THE TWO PORTFOLIOS. (1 1) NOT ONE OR TWO FACTORS OUT OF ABOVE ALONE WILL BE SUFFICIENT TO CO ME TO A DEFINITE CONCLUSION BUT THE CUMULATIVE EFFECT OF SEVERAL FAC TORS HAS TO BE SEEN. 12. A PERUSAL OF THE ORDERS PASSED BY THE LOWER AUT HORITIES IN THE PRESENT CASE SHOWS THAT NEITHER THE AO NOR THE LEARNED CIT(APPEALS) HAS DONE THE EXERCISE TO FIND OUT THE EXACT NATURE OF SHARE TRANSACTIONS CARRIED ON BY THE ASSESSEE IN A PROPER MANNER BY APPLYING THE RELEVANT CRITERIA/PRINCIPLES TO THE FACTS OF THE CASE. WE, THEREFORE, DEEM IT FIT AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE AND RESTORE THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE SAME AFRESH AFTER APPLYING THE PRINCI PLES/CRITERIA LAID DOWN BY THE LUCKNOW BENCH OF THE TRIBUNAL IN T HE CASE OF SARNATH INFRASTRUCTURE (SUPRA) TO THE FACTS OF THE CASE. NEEDLESS TO OBSERVE THAT THE AO SHALL AFFORD PROPER AND SUFF ICIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THUS, T HIS GROUND IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 7. SINCE THE ISSUE UNDER CONSIDERATION IS MATERIALL Y IDENTICAL TO THE ONE DECIDED BY THE TRIBUNAL IN THE CASE OF DHAN A LAXMI COTEX LTD. (SUPRA), WE RESTORE THE ISSUE TO THE FILE OF T HE AO WITH A DIRECTION TO DECIDE THE ISSUE AFRESH FOLLOWING THE SAID DECIS ION OF THE TRIBUNAL AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING T O THE ASSESSEE. THUS, THE GROUNDS RAISED BY THE REVENUE IN ALL THE APPEALS UNDER CONSIDERATION ARE TREATED AS ALLOWED FOR STATISTICA L PURPOSES. 5578 & 5532 AND 5579 & 5533/MUM/10 ASHOKKUMAR DEORAH NIRMALA A. DEORAH 9 14. IN THE RESULT, ALL THE APPEALS FILED BY THE R EVENUE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 17-04-2012 SD/- SD/- (G.E. VEERABHADRAPPA) ( V. DURGA RAO) PRESIDENT JUDICIAL MEMBER MUMBAI, DATED: 17 TH APRIL, 2012 KV COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, A BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI.