DAMYANTI C. VORA, MUMBAI V. ITO 23(2)-2, MUMBAI

ITA 5590/MUM/2010

• Counselvise Citation: 559019914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 22-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 09-07-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O A MAO
• Assessee Lawyers: J V CHHABRIA
• Keywords: Deemed owner of house property; Opportunity of being heard; Deemed to accrue or arise in india

Judgement Text

1 ITA 5590/ M/2010, SMT. DAMYANTI C. VORA. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D BEFORE SHRI R.K. PANDA, A.M. AND SHRI VIJAY PAL RAO , J.M. ITA NO. 5590/MUM/2010 ASSESSMENT YEAR 2006-07 SMT. DAMYANTI C. VORA, 601/602, GAURAV PLAZA, RRT ROAD, MULUND (W), MUMBAI 400080. PAN AACPV8009 VS. INCOME TAX OFFICER 23(2), MUMBAI. APPELLANT RESPONDENT APPELLANT BY SHRI J.V. CHHABRIA RESPONDENT BY SHRI O.A. MAO DATE OF HEARING 22.11.2011 DATE OF PRONOUNCEMENT 30.11.2011 ORDER PER R.K. PANDA A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DT. 03.05.2010 OF THE CIT(A)- 33 MUMBAI RELATING TO A.Y. 2006-07. 2. GROUNDS OF APPEAL 1 & 2 READ AS UNDER:- 1. THAT O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, BOTH THE LOWER AUTHORITIES ERR ED IN TREATING FLAT NO. 601/602 AS TWO SEPARATE FLATS THO UGH IT IS ONE AND CONSEQUENTLY ERRED IN WORKING OUT THE NOTIONAL INCOME FROM ONE HOUSE AT RS. 2,52,000/-. 2. THAT O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, BOTH THE LOWER AUTHORITIES ERR ED IN ARRIVING AT THE CONCLUSION THAT THE APPELLANT OWNS 3 FLATS WHICH IN FACT ARE ONLY 2 FLATS AND THE VALUE OF THE 2 2 ITA 5590/ M/2010, SMT. DAMYANTI C. VORA. FLATS APPEAR IN THE BALANCE SHEET WHICH HAS BEEN TREATED AS THE THIRD FLAT BY THE LOWER AUTHORITIES. 3. FACTS OF THE CASE IN BRIEF ARE THAT DURING THE C OURSE OF ASSESSMENT PROCEEDINGS THE A.O. NOTED THAT THE ASSESSEE IS OWN ING 3 OWNERSHIP FLATS. ONE FLAT PREMISES OF RS. 21,24,855/- IS APPEARING IN TH E BALANCE SHEET AND TWO OWNERSHIP FLATS BEING FLAT NO. 601& 602 IN GAURAV P LAZA. IN THE ABSENCE OF SPECIFIC CHOICE OF THE ASSESSEE THE A.O. TREATED TH E FLAT PREMISES OTHER THAN GAURAV PLAZA AS SELF OCCUPIED PROPERTY AND CONSIDER ED THE TWO FLATS IN GAURAV PLAZA FOR DEEMED INCOME FROM HOUSE PROPERTY. HE NOT ED THAT THE TOTAL SQUARE FEET AREA OF THESE FLATS IS 1164 SQ. FT. CARPET ARE A AND THE FLAT IS SITUATED IN A POSH LOCALITY OF MULUND. HE THEREFORE DEPUTED OFFI CE INSPECTOR TO FURNISH THE REPORT ON RENT RECEIVABLE FOR THESE FLATS WHO REPOR TED THAT THE RENT RECEIVABLE FOR EACH FLAT IS RS. 15,000/- TO RS. 20,000/- PER M ONTH. THE A.O. CONSIDERED RS. 30,000/- PER MONTH AS REASONABLE RENT RECEIVABL E FOR ABOVE FLATS I.E. RS. 3,60,000/- PER ANNUM AND ACCORDINGLY COMPUTED THE I NCOME FROM HOUSE PROPERTY AFTER ALLOWING DEDUCTION U/S 24 AND MADE A N ADDITION OF RS. 2,52,000/-. 3.1 BEFORE THE LD. CIT(A) IT WAS SUBMITTED THAT THE TWO FLATS IN QUESTION ARE SELF OCCUPIED AND THEREFORE THE QUESTION OF TAXING NOTIONAL RENT DOES NOT ARISE. VARIOUS DETAILS WERE FILED BEFORE THE LD. CIT(A) TO SHOW THAT APART FROM THESE TWO FLATS THE ASSESSEE DOES NOT OWN ANY OTHER PREMI SES. THE LD. CIT(A) CALLED FOR AS REMAND REPORT FROM THE A.O. THE A.O. REPORT ED THAT AS PER THE AGREEMENT DTD. 12.9.2001 FOR PERMANENT ALTERNATIVE ACCOMMODATION ON OWNERSHIP BASIS, THE ASSESEE HAS RECEIVED TWO FLATS IN GAURAV PLAZA I.E. FLAT NO. 601 AND 602 IN LIEU OF SURRENDERING OF TENANTED ROO MS NO. 8,9 AND 10 IN POPAT NIWAS. FURTHER, THE ASSESSEE HAS TAKEN LOAN OF RS. 25,00,000/- FROM CORPORATION BANK AND THE SAME WAS UTILISED FOR FLAT NO. 601 AND 602 IN GAURAV PLAZA. ON FURTHER VERIFICATION THROUGH WARD INSPECTOR IT IS REVEALED THAT 3 ITA 5590/ M/2010, SMT. DAMYANTI C. VORA. THE BUILDER HAD MADE SEPARATE AGREEMENT FOR SEPARAT E FLATS IN RESPECT OF OTHER BUYERS IN THE BUILDING BUT IN THE CASE OF THE ASSES SEE, ONLY ONE AGREEMENT WAS MADE FOR FLAT NO. 601 & 602. FURTHER, THE ASSESSEE HAS ALSO MADE ALTERATION FOR KEEPING ONLY ONE ENTRANCE FOR BOTH THE FLATS. IN VIEW OF THE ABOVE, IT CAN BE CONCLUDED THAT ASSESSEE HAS TWO FLATS IN GAURAV PLA ZA AND THEREFORE SHOULD HAVE OFFERED DEEMED RENT FOR TAXATION IN RESPECT OF ONE FLAT. 3.2 THE LD. CIT(A) CONFRONTED THE ASSESSEE WITH THE REMAND REPORT OBTAINED FROM THE A.O. THE ASSESSEE SUBMITTED THAT THE BUIL DER HAS ENTERED INTO ONE SINGLE AGREEMENT FOR FLAT NO. 601 & 602 WHICH WAS G IVEN TO THE ASSESSEE IN LIEU OF THE OLD TENANTED PREMISES BEING ROOM NO. 8, 9, & 10 IN POPAT NIWAS. FURTHER, THERE IS ONLY ONE ENTRANCE FOR THE TWO FLA TS WHICH ABUNDANTLY PROVE THAT BOTH THE PREMISES ARE USED AS SINGLE UNIT HAVI NG COMMON KITCHEN. IT WAS FURTHER SUBMITTED THAT THE INFORMATION IN RESPECT O F FLAT NO. 601 & 602 IN GAURAV PLAZA WAS GATHERED FROM THE BALANCE SHEET IT SELF AND THERE IS NO QUESTION OF CONCEALING ANY INCOME IN RESPECT OF THE OTHER FLAT. IT WAS ACCORDINGLY SUBMITTED THAT NOTIONAL INCOME ADDED BY THE A.O. SHOULD BE DELETED. 3.3 HOWEVER, THE LD. CIT(A) WAS NOT CONVINCED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. ACCORDING TO HER NO AREA MAP HAS BEE N SUBMITTED TO SHOW THAT THE UNITS WERE TO BE CONSIDERED AS SINGLE UNIT. AC CORDING TO HER THE ASSESSEE SHOULD HAVE OFFERED INCOME FROM ONE FLAT FOR TAXATI ON IN KEEPING WITH THE PROVISIONS OF INCOME-TAX ACT. SHE DIRECTED THE A.O. TO CALCULATE THE INCOME FROM HOUSE PROPERTY OF THE ASSESSEE KEEPING IN VIEW THE PROVISIONS OF INCOME- TAX ACT. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A ), THE AASESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE WAS A TENANT IN ROOM NO. 8,9 & 10 AT POPAT NIWAS. THE DEVELOPER UND ERTOOK THE REDEVELOPMENT 4 ITA 5590/ M/2010, SMT. DAMYANTI C. VORA. OF THE PROPERTY AND OFFERED TWO FLATS I.E. FLAT NO. 601 & 602 AT GAURAV PLAZA. BOTH THE FLATS ARE ADJACENT TO EACH OTHER AND THERE IS ONLY ONE COMMON ENTRANCE FOR BOTH THE FLATS WHERE THE FAMILY MEMBER S ARE STAYING. HE SUBMITTED THAT THE BUILDER HAS MADE ONE SINGLE AGREEMENT FOR SALE. THE WARD INSPECTOR WHO INSPECTED THE PREMISES ALSO CONFIRMED THAT THE ASSESSEE HAS MADE ALTERATION AND THERE IS ONLY ONE ENTRANCE FOR BOTH THE FLATS. REFERRING TO THE DECISION OF THE TRIBUNAL IN THE CASE OF PREM PRAKAS H BHUTANI VS. ACIT REPORTED IN [2007]110 TTJ 440 (DEL) HE SUBMITTED THAT IN THE SAID CASE THE ASSESSEE WHO ACQUIRED THREE FLATS OUT OF CAPITAL GAIN AND USED T HEM FOR RESIDENCE OF HIS FAMILY WAS ENTITLED TO EXEMPTION U/S. 54 IN RESPECT OF ALL THE THREE FLATS. HE SUBMITTED THAT SINCE THE ASSESSEE IN THE INSTANT CA SE HAS OCCUPIED BOTH THE FLATS HAVING COMMON ENTRANCE AND COMMON KITCHEN, TH EREFORE, THERE SHOULD NOT BE ANY ADDITION ON ACCOUNT OF NOTIONAL RENT. S O FAR AS THE FINDING OF THE A.O. THAT THE ASSESSEE IS OWNING THREE FLATS, HE SU BMITTED THAT THE SAME IS INCORRECT AND THE ASSESSEE IS THE OWNER OF FLAT NO. 601 & 602 AT GAURAV PLAZA. 5. THE LD. D.R., ON THE OTHER HAND, SUPPORTED THE O RDER OF THE LD. CIT(A). 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PURSUED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. FROM THE VARIOUS DETAILS FU RNISHED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AS WELL AS APPELL ATE PROCEEDINGS AND FROM THE REMAND REPORT, WE FIND THE ASSESSEE IS OWNER OF TWO FLATS NO. 601 & 602 AT GAURAV PLAZA. NOTHING IS COMING OUT OF THE ORDERS OF THE A.O. AND CIT(A) THAT THE ASSESSEE OWNS ANOTHER PREMISES OTHER THAN THE A BOVE TWO FLATS. NOW COMING TO THE QUESTION OF TREATING ONE FLAT AS SELF OCCUPIED AND THE OTHER FLAT AS DEEMED LET OUT FOR CALCULATING NOTIONAL RENT WE FIN D IT WAS THE SUBMISSION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES THAT BOTH THE FLATS ARE SELF OCCUPIED HAVING ONLY ONE COMMON ENTRANCE AND COMMON KITCHEN. EVEN THE WARD INSPECTOR IN HIS REPORT HAD ALSO SUBMITTED THAT THE ASSESSEE HAD MADE 5 ITA 5590/ M/2010, SMT. DAMYANTI C. VORA. ALTERATION AFTER OBTAINING THE FLATS AND THERE IS O NLY ONE ENTRANCE FOR BOTH THE FLATS. WE FIND THERE IS SUFFICIENT FORCE IN THE SU BMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT BOTH THE FLATS ARE USED AS A SING LE UNIT HOUSE PROPERTY FOR RESIDENTIAL PURPOSES OF THE FAMILY MEMBERS. THE OB SERVATION OF THE LD. CIT(A) THAT NO AREA MAP HAS BEEN SUBMITTED TO SHOW THAT TH E UNITS WERE TO BE CONSIDERED AS SINGLE ONE IN OUR OPINION IS UN-CALLE D AFTER THE REPORT OF THE WARD INSPECTOR COMMUNICATED TO THE CIT(A) BY THE A.O. IN THE REMAND REPORT. WE, THEREFORE, HOLD THAT THE ASSESSEE, WHO IS THE OWNER OF FLAT NO. 601 & 602 AT GAURAV PLAZA HAS OCCUPIED BOTH THE FLATS AS A SINGL E UNIT FOR THE PURPOSE OF RESIDENCE OF HIS FAMILY MEMBERS AND THEREFORE NO NO TIONAL RENT CAN BE BROUGHT TO TAX. IN THIS VIEW OF THE MATTER WE SET ASIDE TH E ORDER OF THE LD. CIT(A) AND GROUNDS OF APPEAL NO. 1 & 2 BY THE ASSESSEE ARE ALL OWED. 7. GROUND OF APPEAL NO. 3 BY THE ASSESSEE READS AS UNDER:- THE LEARNED CIT(A) ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE WRONGLY CONFIRMED THE DISALLOWANCE OF 30% OF RENT AMOUNTING TO RS. 3,77,000/- RECEIVED FOR OFFICE THOUGH THE LEARNED A SSESSING OFFICER IN HIS REMAND REPORT ACCEPTED THE EXPLANATION OFFERED BY THE APPELLANT. 7.1. AFTER HEARING BOTH THE SIDES WE FIND THE ASSES SEE HAS SHOWN RENTAL RECEIPT OF RS. 3,77,000/- FROM 22 PERSONS FOR USING TABLE SPACE GIVEN TO THEM IN OFFICE NO. 207, ARIHANT BUILDING, AHMEDABAD STRE ET, KARNAC BUNDER, MUMBAI. SINCE THE RENT RECEIPTS ARE IN RESPECT OF T HE USE OF TABLE SPACE GIVEN, THE ASSESSEE HAS SHOWN THE SAME UNDER THE HEAD INC OME FROM OTHER SOURCES. HOWEVER, THE A.O. REJECTED THE CLAIM OF DEDUCTION O F 30% REPAIRS AND MAINTENANCE CHARGES AMOUNTING TO RS. 1,13,100/-. 7.2 BEFORE THE LD. CIT(A) IT WAS SUBMITTED THAT DED UCTION U/S 24 SHOULD HAVE BEEN ALLOWED. HOWEVER, THE CIT(A) REJECTED THE ABOV E CONTENTION OF THE ASSESSEE. ACCORDING TO HER WHAT THE ASSESSEE HAS R ENTED OUT IS TABLE SPACE IN OFFICE BUILDING AND HAS OFFERED THE RENT RECEIVED F OR TAXATION UNDER THE HEAD 6 ITA 5590/ M/2010, SMT. DAMYANTI C. VORA. INCOME FROM OTHER SOURCES. THEREFORE ANY INCOME THAT IS RECEIVED ON RENTING OUT AMENITY IN A PROPERTY IS LIABLE TO BE TAXED UND ER INCOME FROM HOUSE PROPERTY. ACCORDINGLY, THE DISALLOWANCE MADE BY T HE A.O. WAS UPHELD BY THE LD. CIT(A). AGGRIEVED WITH SUCH ORDER OF THE LD. CI T(A), THE ASSESSEE IS IN APPEAL BEFORE US. 7.3 AFTER HEARING BOTH THE SIDES WE FIND THE MATTER NEEDS TO BE ADJUDICATED AFRESH AT THE LEVEL OF THE A.O. THE RENT AGREEMENT IN THE INSTANT CASE APPEARS TO HAVE NOT BEEN EXAMINED BY THE LOWER AUTHORITIES WHI CH IS VITAL BEFORE COMING TO ANY CONCLUSION. WE, THEREFORE, RESTORE THE MATTER TO THE FILE OF THE A.O. WITH A DIRECTION TO ADJUDICATE THE ISSUE AFRESH KEEPING IN MIND THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SHAMBHU INVESTMENT REP ORTED IN 263 ITR 143. WE HOLD AND DIRECT ACCORDINGLY. THIS GROUND BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 8. GROUND NO. 4 BY THE ASSESSEE READS AS UNDER:- THAT THE LEARNED CIT(A) WRONGLY CONFIRMED THE ADDIT ION OF RS. 1,38,334/- AS INTEREST PAID TO THE BANK FOR THE LOA N OF RS. 25,00,000/- TAKEN FOR FLAT NO. 601/602 TOWARDS CONS TRUCTION I.E. TILING OF FLOOR AND WALLS. 8.1 FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSE E CLAIMED INTEREST ON HOUSING LOAN TO THE EXTENT OF RS. 1,38,334/-. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS THE A.O. ASKED THE ASSESSEE TO SHOW THE NEXUS OF RENT RECEIVED AND THE CLAIM OF INTEREST ON HOUSING LOAN. IN ABSENCE OF ANY EVIDENCE FURNISHED BY THE ASSESSEE AND REJECTING THE UNSATISFACTORY EXPLA NATION GIVEN BY THE ASSESSEE THE A.O. DISALLOWED THE CLAIM OF DEDUCTION OF INTER EST AMOUNTING TO RS. 1,38,334/-. 7 ITA 5590/ M/2010, SMT. DAMYANTI C. VORA. 8.2 IN APPEAL THE LD. CIT(A) CONFIRMED THE ACTION O F THE A.O. BY HOLDING AS UNDER:- SIMILARLY GROUND NO. 4 IS IN RESPECT OF DISALLOWANC E OF INTEREST PAID ON LOAN SAID TO HAVE BEEN TAKEN FOR PURCHASE OF HOU SE PROPERTY. I FIND THAT THE ASSESSING OFFICER HAS INVESTIGATED THIS IS SUE IN DETAILS AND HAS COME TO THE CONCLUSION THAT THE LOAN HAS BEEN T AKEN FROM CORPORATION AND ORIENTAL BANK OF COMMERCE FROM ASSE SSMENT YEAR 2002-03 ONWARDS ON WHICH THE INTEREST HAS BEEN PAID AND CLAIMED AS DEDUCTION. THE APPELLANT HAS NOT BEEN ABLE TO PROV E THAT THIS LOAN HAS BEEN TAKEN FOR PURCHASE OF HOUSE PROPERTY AGAINST W HICH INCOME HAS BEEN DECLARED UNDER THE HEAD INCOME FROM HOUSE PROP ERTY. THE ASSESSING OFFICER FURTHER GOES TO SAY THAT INTEREST ON HOUSING LOAN WAS FIRST TIME CLAIMED IN ASSESSMENT YEAR 2002-03 WHICH WOULD MAKE IT OBVIOUS THAT THE LOAN WAS TAKEN IN THAT YEAR BUT TH E SAID PROPERTY AS DECLARED BY THE APPELLANT HAS BEEN PURCHASED WAY BA CK IN 1998. BALANCE SHEET FIGURES OF THE APPELLANT ALSO DO NOT SHOW THE UTILIZATION OF HOUSING LOAN OF RS. 25 LACS. THE APPELLANT HAS NOT BEEN ABLE TO ESTABLISH THAT THE LOAN HAS BEEN IN RESPECT OF HOUS E PROPERTY FROM WHERE THE APPELLANT HAS RECEIVED RENTAL INCOME OF R S. 377000/- FROM 22 PERSONS AND CLAIMED AS INCOME FROM OTHER SOURCES . IN VIEW OF THIS THE ASSESSING OFFICER HAS DISALLOWED THE LOAN. THE REMAND REPORT OF THE ASSESSING OFFICER IS SILENT ON THIS ISSUE AND I FIND THAT THE APPELLANT IS NOW DURING THE APPELLATE PROCEEDINGS S TATED THAT THE LOAN OF RS. 25 LACS WAS TAKEN FROM ORIENTAL BANK OF COMM ERCE FOR FLOORING AND ELECTRICAL FITTINGS OF FLAT PURCHASED IN GAURAV PLAZA. NO DOCUMENTARY EVIDENCE TO SUBSTANTIATE THIS STATEMENT HAS BEEN SUBMITTED. I ALSO FIND THAT THE APPELLANT HAS CHAN GED HER STATEMENT FROM WHAT WAS GIVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS WITHOUT EXPLANATION. IN VIEW OF THIS, I AM NOT INC LINED TO INTERFERE WITH THE ACTION OF THE ASSESSING OFFICER. THE DISALLOWA NCE MADE BY THE ASSESSING OFFICER IS CONFIRMED. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE AS SESSEE IS IN APPEAL BEFORE US. 8.2 WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PURSUED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THE ONLY DISPUTE IN THE IMP UGNED GROUND IS REGARDING THE ALLOWABILITY OF THE INTEREST TO THE EXTENT OF R S. 1,38,334/-. WE FIND THE A.O. DISALLOWED THE INTEREST ON THE GROUND THAT THE ASSE SSEE COULD NOT FURNISH ANY SATISFACTORY EVIDENCE TO SHOW THAT THE INTEREST ON LOAN HAS BEEN UTILIZED FOR THE PURPOSE OF PREMISES GIVEN ON RENT. WE FIND BEFORE THE LD. CIT(A) THE ASSESSEE HAS STATED THAT THE ABOVE LOAN HAS BEEN UTILIZED FO R THE PROPERTIES BEING FLAT NO. 8 ITA 5590/ M/2010, SMT. DAMYANTI C. VORA. 601/602 AT GAURAV PLAZA. WE FIND THE LD. CIT(A) ALS O REJECTED THE CLAIM ON THE GROUND THAT NO DOCUMENTARY EVIDENCE ARE GIVEN TO PR OVE THAT THE LOAN OF RS. 25 LACS TAKEN FROM ORIENTAL BANK OF COMMERCE FOR FLOOR ING AND ELECTRICAL FITTINGS OF FLAT PURCHASED IN GAURAV PLAZA. WE FIND THE ASSESSE E IS NOT CONSISTENT IN HER STAND. AT ONE POINT SHE SAYS THE INTEREST HAS TO B E DEDUCTED FROM THE RENTAL INCOME. AT ANOTHER POINT SHE CLAIMS THE LOAN HAS BE EN UTILIZED FOR THE RESIDENTIAL ACCOMMODATION. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTERESTS OF JUSTICE WE DEEM IT PROPER TO RE STORE THE MATTER BACK TO THE FILE OF THE A.O. WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO EXPLAIN THE CASE. THE A.O. SHALL DECIDE THE ISSUE AFRESH AND I N ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 30.11.2011. SD/- SD/- (VIJAY PAL RAO (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 30.11.2011. RK 9 ITA 5590/ M/2010, SMT. DAMYANTI C. VORA. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 33, MUMBAI 4. THE CIT 23, MUMBAI 5. THE DR BENCH, D 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI