R.C. Nirula & Sons HUF, New Delhi V. ACIT, New Delhi

ITA 6093/DEL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4402 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 17-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 12-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: VINOD KUMAR GARG; ANIL KUMAR CHOPRA
• Keywords: Capital asset; Cost of acquisition; TDS
• Section: 2(14); 147

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH F, NEW DELHI BEFORE : SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NOS. 6093/DEL/2015 & 1028/DEL/2014 ASSESSMENT YEARS: 2008-09 & 2009-10 R.C. NIRULA & SONS HUF, 32, SUNDER NAGAR MARKET, NEW DELHI. PAN: AAAHR6050F (APPELLANT) VS. ACIT, CIRCLE 32(1), NEW DELHI. (RESPONDENT) APPELLANT BY SH. ANIL KUMAR CHOPRA, FCA & SH. VINOD KUMAR GARG, ADVOCATE RESPONDENT BY SH. SURENDER PAL, SR. DR ORDER PER L.P. SAHU, A.M.: THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE LD. CIT(A)-18 & XXVI, NEW DELHI DATED 11.09.2015 AND 17.12.2013 FOR THE ASSESSMENT YEAR 2008-09 & 2009-1 0 RESPECTIVELY. THE GROUNDS RAISED IN BOTH THE APPEALS READ AS UNDER : GROUNDS RAISED IN A.Y. 2008-09: 1. THAT ON FACTS AND IN LAW, LD. COMMISSIONER OF INC OME TAX (APPEALS) [LD.CIT(A)] HAS ERRED IN CONFIRMING THE ASSESSMENT O F CAPITAL GAIN ON TRANSFER OF BOOKING RIGHTS IN IMMOVABLE PROPERTY IN AY 2008-09 AS SHORT TERM CAPITAL GAIN (STCG) (RS. 52,80,000/-) AS AGAINST THE SAME BEING DATE OF HEARING 24.01.2019 DATE OF PRONOUNCEMENT 11.02.2019 ITA NO. 6093/DEL/2015 & 1028/DEL/2014 2 CORRECTLY ASSESSABLE IN AY 2009-10 AS LONG TERM CAPI TAL GAIN (LTCG) (RS.36,29,880/-) AS RETURNED BY THE ASSESSEE. IN AY 2009-10, THE LTCG HAS BEEN ASSESSED ON PROTECTIVE BASIS AND THIS ISSUE IS IN APPEAL BEFORE THE HONBLE ITAT FOR AY 2009-10. 2. THAT THE LD. CIT(A) HAS ERRED IN CONSIDERING THE DATE OF AGREEMENT TO SELL 08.03.2008 AS THE DATE OF TRANSFER ON MERE RECEIPT OF 10% ADVANCE, WHEREAS THE TRANSFER TOOK PLACE IN THE NEXT YEAR ON LY PURSUANT TO COMPLETION OF FULL AND FINAL PAYMENT, ON HANDING OV ER OF ORIGINAL DOCUMENTS AND ON TRANSFER OF BOOKING BY BUILDER IN THE NAME OF THE BUYER I.E. IN AY 2009-10. THERE IS NO TRANSFER OF THE CAPI TAL ASSET INVOLVED IN AY 2008-09. 3. THAT TAXATION OF STCG OF RS.52,80,000/- ON ALLEGE D TRANSFER OF SAID BOOKING RIGHTS IN AY 2008-09 AMOUNTS TO DOUBLE TAXA TION AS THE INCOME INVOLVED IS ALREADY ASSESSED IN AY 2009-10. AS SUCH TOO, THE SAID ADDITION IS LIABLE TO BE DELETED IN TOTO. 4. THAT THE ORDER OF THE LD. CIT(A) IS BASED ON ERRON EOUS VIEWS AND/OR NON-APPRECIATION OF THE FACTS AND LAW INVOLVED WITH OUT PROPERLY CONSIDERING OR APPRECIATING THE MATERIAL AND EXPLAN ATIONS ON RECORD AND IS CONTRARY TO MUCH CASE LAW IN THE APPELLANTS FAV OUR. 5. THAT THE GROUNDS OF APPEAL AS HEREIN ARE WITHOUT PREJUDICE TO EACH OTHER. GROUNDS RAISED IN A.Y. 2009-10: 1. THAT THE AUTHORITIES BELOW ERRED IN INDEXING THE PROPERTIES AT A- 212 AND B-221, FLORENCE MARVEL, GURGAON, SOLD BY TH E ASSESSEE DURING THE PERIOD FROM THE DATE OF PAYMENT OF INSTALLMENT AND NOT DATE OF PURCHASE OF ASSETS, CONTRARY TO THE PROVISION OF SECTION 48 OF THE ACT. 2. THAT THE LEARNED CIT (APPEAL) ERRED IN NOT FOLLOW ING THE ORDER OF ITAT MUMBAI BENCH IN THE CASE OF CHARNBIR SINGH JOLL Y VS. ITO (EIGHT), (REPORTED AS (2006) 5 SOT 89 MUM, WHERE THE HONOURA BLE MEMBERS HELD THAT INDEXATION IS TO BE DONE FROM THE DATE OF PURC HASE OF ASSET AND NOT THE DATE OF PAYMENT OF INSTALLMENT. ITA NO. 6093/DEL/2015 & 1028/DEL/2014 3 3. THE ORDER OF THE AUTHORITIES BELOW BEING CONTRAR Y TO THE FACTS OF THE CASE AND IN LAW THE APPEAL BE ALLOWED. THE ADDITIONAL GROUNDS RAISED BY ASSESSEE IN A.Y. 2 009-10 READ AS UNDER: 1. THAT ON FACTS AND IN LAW, THE LEARNED ASSESSING OFFICER (LD. AO) HAS ERRED IN ASSESSING THE LONG TERM CAPITAL GAI N ON SALE OF RIGHT IN PROPERTY BEARING NO. B-221, FLORENCE MARVEL, GURGAO N IN AY 2009-10 ON PROTECTIVE BASIS RATHER THAN ON SUBSTANTIVE BASIS A S RETURNED BY THE APPELLANT. THE RIGHT IN THE PROPERTY AT B-221 WAS TR ANSFERRED IN THE AY 2009-10 AND AS SUCH, THE SAME IS TAXABLE ON SUBSTAN TIVE BASIS IN AY 2009- 10. 2. THAT THE LD. AO HAS ERRED IN ADDING A SUM OF RS. 90,178/- AS INTEREST INCOME FROM HDFC BANK BASED ON AN ERRONEOU S FORM 26AS. 2. AFTER HEARING BOTH THE SIDES, THE ADDITIONAL GRO UNDS ARE ACCEPTED. WE FIRST TAKE UP THE APPEAL FOR THE ASSESSMENT YEAR 20 09-10 FOR THE SAKE OF CONVENIENCE AND BREVITY. THE ASSESSEE FILED RETURN OF INCOME ON 23.07.2009 DECLARING INCOME AT RS.1,14,04,810/-. THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES WERE ISSUED. AS PER COMPUTATION O F INCOME, THE ASSESSEE HAS SHOWN INCOME FROM HOUSE PROPERTY, CAPITAL GAINS AND OTHER SOURCES. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD SOL D TWO PROPERTIES AND SHOWED LONG TERM CAPITAL GAINS AS UNDER : SL. NO. PARTICULARS SALE DATE SALE CONSIDERATION PURCHASE DATE PURCHASE COST INDEX COST EXE MPTION EXP. GAIN/LOSS 1 FLAT NO.A - 212, GURGAON (OTHER ASSETS. 30.08.2008 15000000 04.04.2005 10614000 12429272 0 150000 2420728 2 FLAT NO. B - 221 GURGAON (OTHER ASSETS) 02.05.2008 13525000 09.04.2005 8775000 10275755 0 120000 3129245 TOTAL 5549973 ITA NO. 6093/DEL/2015 & 1028/DEL/2014 4 FROM THE ABOVE LONG TERM CAPITAL GAINS, THE ASSESSE E HAS SET OFF BROUGHT FORWARD CAPITAL LOSSES OF RS.2,78,385/- SHOWING TAX ABLE LONG TERM CAPITAL GAINS OF RS.52,71,588/-. AS PER COMPUTATION, THE AS SESSEE APPLIED CII OF F.Y. 2005-06 (497) AND F.Y. 2008-09 (582) FOR THE COMPUT ATION OF CAPITAL GAINS IN RESPECT OF PURCHASE AND SALES OF THE CAPITAL ASSETS . THE ASSESSEE WAS ASKED TO FURNISH PROOF OF PAYMENTS. THEN HE SUBMITTED THAT T HE PAYMENTS HAVE BEEN MADE IN INSTALLMENTS IN DIFFERENT FINANCIAL YEARS. THE ASSESSING OFFICER WAS NOT SATISFIED AND CALCULATED THE COST OF ACQUISITIO N WITH INDEXATION ACCORDING TO THE INSTALLMENT PAYMENTS MADE TO THE BUILDER IN RESPECT OF PROPERTY NO. A- 212 AND B-221 SITUATED AT FLORENCE MARVEL GURGAON. THE ASSESSEE SUBMITTED REPLY AND RELIED ON THE DECISION OF MUMBAI BENCH OF ITAT IN THE CASE OF CHARAN VEER SING JOLLY VS. ITO (2006), 5 SOT 89 (MU M). THE ASSESSING OFFICER FURTHER NOTED THAT THE ASSESSEE HAD NOT PURCHASED A NY ASSET BUT HAD GOT ONLY RIGHT TO ACQUIRE BY WAY OF ALLOTMENT THAT TOO WAS S UBJECT TO MAKING TIMELY PAYMENT. THE ASSESSEE HAD MADE PAYMENT OF SUBSTANTI AL PART OF THE ENTIRE COST IN RESPECT OF PROPERTY NO. B-221. IN RESPECT OF PROPERTY NO. A-212, THE ASSESSING OFFICER DETERMINED LONG TERM CAPITAL GAIN OF RS.28,96,991/-. 3. THE ASSESSING OFFICER FURTHER NOTICED THAT ON VE RIFICATION OF THE PROPERTY AT FLAT NO. B-221, FLORENCE MARVEL, GURGAON, THE AS SESSEE HAD MADE AGREEMENT FOR PURCHASE OF VILLA FOR CONSIDERATION OF RS.1.30 CRORES WITH ANSAL BUILDWEL AS PER THE DOCUMENTS EXECUTED WITH ANSAL PROPERTY DATE D 09.04.2005 PLACED AT PAPER BOOK PAGE 26 TO 32 AND THE PAYMENT WAS TO BE MADE IN INSTALLMENTS ON DIFFERENT STAGES OF COMPLETION OF THE SAID PROPERTY . AS PER BUYERS AGREEMENT, THE RIGHT TO ACQUIRE THE CAPITAL ASSET WAS CREATED ON 09.04.2005 BY PROVISIONAL ITA NO. 6093/DEL/2015 & 1028/DEL/2014 5 ALLOTMENT. FURTHER THE ASSESSEE MADE AN AGREEMENT T O SALE ON 08.03.2008 WITH SH. ARDAMAN SINGH FOR SALE CONSIDERATION OF RS .1,57,50,000/- AND RECEIVED RS.15.75 LAKHS, I.E., 10% OF THE TOTAL SAL E CONSIDERATION BY CHEQUE NO. 253992 DATED 03.03.2008. TILL 08.03.2008, THE ASSES SEE HAD MADE PAYMENT TO ANSAL BUILDWEL LTD. TO THE TUNE OF RS.1,03,50,000/- . NOC WAS RECEIVED FOR TRANSFER OF PROPERTY B-221 FROM THE BUILDER ON 02.0 5.2008 IN FAVOUR OF ARADMAN SINGH, WHICH IS PLACED AT PAPER BOOK PAGE 2 5. IN THE IMPUGNED YEAR, THE ASSESSING OFFICER CALCULATED THE LONG TERM CAPI TAL GAIN AFTER REDUCING RS.15.75 LAKHS AS ADVANCE MONEY FROM THE COST OF AC QUISITION AT RS.87,75,000/-. THE OBSERVATIONS MADE BY THE ASSESS ING OFFICER TO ARRIVE AT THE ABOVE CONCLUSIONS ARE AS UNDER : 6(A) I HAVE CONSIDERED THE ARGUMENT OF ASSESSEE AND ALSO FACTS OF THE CASE. THE ASSESSEE HAS RAISED VARIOUS ISSUES. FIRST ARGUMENT IS THAT THE AGREEMENT TO SELL ITSELF DOES NOT CONSTITUTE A TRANSFER BECAUSE AS PE R ASSESSEE, IT IS ONLY AN AGREEMENT TO DO AN ACT AT A FUTURE DATE AND UPON TH E FULFILLMENT OF CERTAIN CONDITIONS BY EITHER PARTY TO THE AGREEMENT. AT THE OUTSET, I WOULD LI POINT OUT THAT THE CAPITAL ASSET IN QUESTION IS NOT AN IMMOVA BLE PROPERTY AND ONLY A RIGHT TO ACQUIRE THE SAME AT A LATER DATE AS ADMITTEDLY B Y THE DATE OF TRANSFER OF THE RIGHT; M/S ANSAL BUILDWELL LTD. HAS NOT COMPLETED T HE CONSTRUCTION OF PROPERTY OR HANDED OVER TO HIM. SINCE, THERE WAS NOTHING IN EXISTENCE OTHER THAN THE RIGHT TO ACQUIRE OR OWN, THE DATE OF TRANSFER CAN ONLY BE A DATE ON WHICH BOTH THE PARTIES MUTUALLY AGREE TO HAND OVER OR CHANGE SUCH RIGHT. IN THIS REGARD, I PLACE RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENT SQ UARELY APPLICABLE ON THE FACTS AND CIRCUMSTANCES ON THE CASE OF THE ASSESSEE . IN ORDER TO ATTRACT SECTION 45, IT SHOULD BE ESTABL ISHED THAT, BY THE TRANSFER, THE TITLE TO THE PROPERLY STANDS PASSED TO THE PURCHASE R. IF WHAT WAS SOLD WAS IMMOVABLE PROPERTY, IT SHOULD FURTHER BE ESTABLISHE D THAT THE SAME WAS ITA NO. 6093/DEL/2015 & 1028/DEL/2014 6 CONVEYED BY A REGISTERED DEED. IT IS THE DATE OF EX ECUTION OF THE REGISTERED DEED, AND NOT THE DATE OF DELIVERY OF POSSESSION, THAT WI LL BE RELEVCNT IN SUCH CIRCUMSTANCES, FOR ON THAT DATE ALONE THE TITLE TO PROPERTY PASSES- CIT V. F.X. PERIERA & SONS (TRAVANCORE)(P) LTD. [1990] 184 ITR 46 1(KER). CAPITAL GAINS TAX IS ATTRACTED THE MOMENT THE ASSES SEE HAS ACQUIRED THE RIGHT TO RECEIVE THE PROFITS AND IT IS NOT NECESSARY THAT TH E ASSESSEE SHOULD HAVE ACTUALLY RECEIVED THE PROFITS. WHAT THE PARTIES DID SUBSEQUE NT TO THE YEAR WILL NOT HAVE ANY BEARING ON THE LIABILITY TO TAX IN RESPECT OF T HAT YEAR. IF IT SUBSEQUENTLY HAPPENS THAT THE MONEY IS NOT ACTUALLY RECEIVED, TH AT WOULD BE A CAPITAL LOSS ARISING IN THE YEAR WHEN THE MONEY BECAME IRRECOVER ABLE - T.V. SUNDARAM IYENGAR A SONS LTD. V. CIT [1959] 37 ITR 26 (MAD.). THERE ARE DIFFERENT SHADES OF MEANING OF THE WORD 'T RANSFER', VIZ, TO MAKE OVER POSSESSION OF TO ANOTHER', A DELIVERY OF TITLE OR P ROPERTY FROM ONE PERSON TO ANOTHER, TO DISPLACE FROM ONE SURFACE TO ANOTHER, R EMOVAL, DISPLACE. DEFINITION OF 'TRANSFER' IN SECTION 2(47) IS AN INCLUSIVE ONE AND DOES NOT EXCLUDE THE CONTEXTUAL OR THE ORDINARY MEANING OF THE WORD 'TRANSFER' - CI T V. NARANG DAIRY PRODUCTS [1996] 85 TAXMAN 375/219 ITR 478 (SC). PERUSAL OF THE ABOVE JUDICIAL PRONOUNCEMENTS CONFIR MS THAT BY ENTERING AN AGREEMENT TO SELL ON 08.03.2008, THE RIGHT IN THE P ROPERTY STANDS TRANSFERRED IN THE HANDS OF BUYER AND THE DATE OF ACTUALLY RECEIVI NG THE ENTIRE CONSIDERATION IS NOT MATERIAL. I AM FURTHER FORTIFIED IN MY VIEW BY THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ALAPATI VENKATARAMIAH V. CIT [1965] 57 ITR 185 (SC), WHEREIN IT WAS HEIA THAT THE DATE OF SALE OR TRANSFER IS THE DATE WHEN THE SALE OR TRANSFER TAKES PLACE, AND FOR THE PURPOSE O F DETERMINING THAT DATE, ENTRIES IN THE ACCOUNT BOOKS ARE IRRELEVANT. ACCORDINGLY, T HE TRANSFER IS COMPLETED BY EXECUTING THE AGREEMENT. 6(B) THE ASSESSEE HAS FURTHER CLAIMED THAT THE TRANS ACTION IS NOT COVERED WITHIN THE MEANING OF WORD 'TRANSFER' AS MENTIONED IN SECT ION 2(47)(V) OF THE INCOME- TAX ACT, 1961 AS THE CAPITAL ASSET WAS NOT AN IMMOV ABLE PROPERTY AND IS ONLY A ITA NO. 6093/DEL/2015 & 1028/DEL/2014 7 RIGHT TO ALLOTMENT OF THE PROPERTY. I WOULD LIKE TO MENTION HERE THAT THE TRANSACTION IS AN RELINQUISHMENT OF THE RIGHT AND A S SUCH THE SAME IS COVERED U/S 2(47)(II) OF THE INCOME-TAX ACT, 1961. INFACT, IF T HE ASSESSEE'S VERSION IS TO B :D UPON, THEN THERE CANNOT BE ANY CAPITAL GAIN TILL TH E TIME THE ASSESSEE RECEIVES THE ENTIRE CONSIDERATION EVEN THOUGH SUCH DATE MAY OCCU R AFTER ANY INDEFINITE PERIOD. THIS VIEW IS SUPPORTED IN THE DECISION OF CI T VS TATA SERVICES LTD. (1980) 122 ITR 594 (BOM) WHEREIN IT WAS HELD THAT 'A CONTRA CT FOR SATE OF LAND IS CAPABLE OF SPECIFIC PERFORMANCE. IT IS ALSO ASSIGNA BLE. A RIGHT TO OBTAIN CONVEYANCE OF IMMOVEABLE 'PROPERTY' IS CLEARLY 'PRO PERTY' AS CONTEMPLATED BY SECTION 2(14)'. THE ASSESSEE'S CLAIM IS, THEREFORE, REJECTED. 6(C) THE ASSESSEE HAS ALSO MADE AN ALTERNATE PLEA CL AIMING THAT IF ONE WERE TO ASSUME THAT AGREEMENT TO SELL BY ITSELF EQUATES TO A TRANSFER OF THE ASSET, THEN IN THE PRESENT PROCEEDING, THERE WILL BE NO CAPITAL GA IN ASSESSABLE IN A.Y. 2009-10 BECAUSE THE TRANSFER HAD ALREADY BEEN TAKEN PLACE I N THE PREVIOUS YEAR RELEVANT TO A.Y. 2008-09. THERE CANNOT BE A DISPUTE THAT THE TRANSACTION SINCE COMPLETED IN F.Y. 2007-08 RELEVANT TO A.Y. 2008-09, THE SHORT TERM CAPITAL GAIN CAN RIGHTLY BE ASSESSED IN THE HANDS OF ASSESSEE IN A.Y. 2008- 09. I WILL ALSO DO THE SAME AND ASSESS THE CAPITAL GAIN ON RELINQUISHMENT OF RIGHT TO ACQUIRE THE PROPERTY AT B- 221 FLORENCE MARVEL IN A.Y. 2009-10 AS LONG TERM CA PITAL GAIN ON PROTECTIVE BASIS AND AS SHORT TERM CAPITAL GAIN IN A.Y.2008-09 ON SUBSTANTIVE BASIS. REMEDIAL PROCEEDING SHALL BE TAKEN UP SEPARATELY. 6(D) THE INDEXATION ON THE AMOUNT OF RS.15,75,000/- REDUCED FROM THE COST OF ACQUISITION U/S 51 OF THE INCOME-TAX ACT, 1961 SHAL L NOT BE ALLOWED. HOWEVER THE AMOUNT WILL BE SET OFF FROM THE AMOUNT PAID BY ASSE SSEE IN THE LAST INSTALLMENT. THUS THE INDEXED COST OF ACQUISITION ON THIS PROPERT Y SHALL BE AS UNDER: ITA NO. 6093/DEL/2015 & 1028/DEL/2014 8 PROPERTY NO. B - 221 FLORENCE MARVEL SI. NO. DATE OF PAYMENT AMOUNT CII FOR THE F.Y. IN WHICH PAYMENT MADE. F.Y. / CII CII FOR THE F.Y. 08 - 09 (ONLY FOR PROTECTIVE ASSESSMENT) IN WHICH RIGHTS ARE SOLD INDEXED COST OF ACQUISITION 1 09.04.2005 13,00,000/ - 2005 - 06 / 497 582 15,22,334/ - 2 06.05.2005 13,00,000/ - 2005 - 06 / 497 582 15,22,334/ - 3 18.02.2006 6,00,000/ - 2005 - 06 / 497 582 7,02,616/ - 4 06.06.2006 13,00,000/ - 2006 - 07 / 519 582 14,57,803/ - 5 22.08.2006 13,00,000/ - 2006 - 07 / 519 582 14,57,803/ - 6 14.10.2006 13,00,000/ - 2006 - 07/ 519 582 14,57,803/ - 7 23.11.2006 6,50,000/ - 2006 - 07 / 519 582 7,28,902/ - 8 27.12.2006 6,50,000/ - 2006 - 07/ 519 582 7,28,902/ - 27.01.2007 ( - ) 13,00,000/ - INDEXATION WITHDRAWN INDEXATION WITHDRAWN 17.09.2007 ( - ) 2,75,000/ - 9 17.09.2007 3,75,000/ - 2007 - 08 / 551 582 3,96,098/ - TOTAL 87,50,000/ - 99,74,595/ - IN VIEW OF THE ABOVE, THE CAPITAL GAIN AS SHOWN BY ASSESSEE AS LONG TERM IS BEING WORKED OUT AS BELOW. SALE CONSIDERATION RS.1,57,50,000/- LESS: COMMISSION PAID TO BROKER RS.1,20,000/- INDEXED COST OF ACQUISITION AS ABOVE RS.99,74,59 5/- TAXABLE LONG TERM CAPITAL GAIN RS.56,55,405/- AS PER ABOVE FINDINGS, AFTER RECORDING THE REASONS FOR REOPENING U/S.147, THE CASE WAS REOPENED FOR THE ASSESSMENT YEAR 2008-09 A ND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE ASSESSING OFFICER ASSESSED THE SHORT TERM CAPITAL GAIN OF RS.52,80,000/- ON SUBSTANTIVE BASIS AFTER RELYING ON MANY CASE LAWS. ITA NO. 6093/DEL/2015 & 1028/DEL/2014 9 4. FURTHER, IN RESPECT OF ASSESSMENT YEAR 2009-10, THE LONG TERM CAPITAL GAIN WAS ASSESSED AT RS.36,29,880/- ON PROTECTIVE B ASIS IN RESPECT OF PROPERTY NO. B-221. THE ASSESSING OFFICER COMPUTED THE LONG TERM CAPITAL GAIN IN RESPECT OF PROPERTY NO. A-212 AT RS.28,96,991/-. 5. FURTHER ON SCRUTINY OF ACCOUNTS, THE ASSESSING O FFICER NOTICED FOR THE ASSESSMENT YEAR 2009-10 THAT THE ASSESSEE HAS SHOWN INTEREST INCOME ON FDR WITH HDFC BANK OF RS.3,78,126/- WHEREAS AS PER INFO RMATION FROM 26AS, WHEREAS AS PER INFORMATION FROM 26AS, IT IS APPEARI NG OF RS.4,68,304/- AND TDS ON INTEREST IS RS.39,765/-. IN THIS REGARD, THE ASSESSEE SUBMITTED THAT HDFC BANK HAS ISSUED FORM NO. 16A, ACCORDING TO WHI CH THE TOTAL AMOUNT OF INTEREST PAID/CREDITED ISRS.3,78,126/- AND CORRESPO NDING TDS IS RS.39,764/- WHICH WAS CLAIMED BY THE ASSESSEE AS TDS CREDIT. AS PER FORM NO. 26AS, THE INTEREST PAID/CREDITED FROM HDFC BANK WAS APPEARING AT RS.4,67,943/-. THE ASSESSEE FURTHER SUBMITTED THAT THE INTEREST HAS BE EN TAKEN AS PER FORM NO. 16A ISSUED BY HDFC BANK AND THE DIFFERENCE REPRESEN TS ACCRUED INTEREST BY THE BANK WHICH IS YET NOT CREDITED TO ITS ACCOUNT A ND WILL BE DULY TAKEN AT THE TIME WHEN THE BANK ACTUALLY CREDITS THE SAME TO THE ACCOUNT. THE AO APPLIED SECTION 199 AND DIFFERENCE OF RS.90,178/- (4,68,304 3,78,126) WAS ADDED BACK TO THE INCOME OF THE ASSESSEE. AGGRIEVED FROM THE ABOVE ORDER, THE ASSESSEE APPEALED BEFORE THE LD. CIT(A) WHO AFTER C ONSIDERING THE SUBMISSIONS OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10, PA RTLY ALLOWED THE APPEAL OF THE ASSESSEE AND IN RESPECT OF ASSESSMENT YEAR 2008 -09, DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED FROM THE ORDER OF THE LD . CIT(A), THE ASSESSEE IS IN APPEALS BEFORE THE ITAT. ITA NO. 6093/DEL/2015 & 1028/DEL/2014 10 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED A WRI TTEN SYNOPSIS WHICH READS AS UNDER : IN SUPPLEMENT TO THE FILINGS AND ORAL SUBMISSIONS B EING MADE ALONG WITH CASE LAW BEING RELIED, THE APPELLANT RESPECTFULLY S UBMITS A BRIEF SYNOPSIS AS UNDER. 1. THE GROUNDS OF APPEAL BEING GROUND NO. 1, 2 & 3 I NVOLVED IN THIS APPEAL ARE AGAINST INCORRECT INDEXATION OF COST OF ACQUISITION OF PROPERTIES B-221 AND A-212, FLORENCE MARVEL, GURGAON WHICH WER E SOLD BY THE APPELLANT DURING THE YEAR. LD. AO ALLOWED INDEXATIO N FROM YEAR TO YEAR BASED ON DATE OF PAYMENT OF INSTALLMENTS RATHER THA N INDEXATION OF TOTAL COST OF PROPERTY FROM THE DATE OF PURCHASE OF RIGHT S IN THE SAID PROPERTIES AS CLAIMED BY THE APPELLANT. DURING THE YEAR THE APPELLANT SOLD HIS BOOKING RIGH TS IN TWO PROPERTIES BOOKED WITH ANSALS AND RETURNED CAPITAL GAIN THEREO N AS LONG TERM CAPITAL GAIN (LTCG). THE APPELLANT INDEXED THE COST O F ACQUISITION ON THE ENTIRE COST FROM THE YEAR OF BOOKING BASED ON THE D ECISION OF HONBLE MUMBAI ITAT IN THE CASE OF CHARANBIR SINGH JOLLY V. ITO [2006] 5 SOT 89 (MUM.) HOWEVER, LD. AO DID NOT ACCEPT THE BASIS OF THE APPELLANT AND COMPUTED THE INDEXED COST BASED ON YEAR TO YEAR AS PER THE DATE OF PAYMENT OF INSTALLMENTS. ON APPEAL BY THE APPELLANT, LD. CIT(A) CONFIRMED THE BASIS OF THE LD. AO ON THE GROUND THAT THERE IS A CONTRARY DECISION OF THE HONBLE DELHI ITAT IN THE CASE OF PRAVEEN GUPTA V. ACIT, [2012] 20 TAX MANN.COM 308 ON THIS ISSUE. NOW THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF NIRMAL KUMAR SETH V. CIT [2012] 17 TAXMANN.COM127 (ALL) HAS COME TO OUR NOTICE WHEREIN IT HAS BEEN HELD THAT THE INDEXATION IS TO BE ALLOWED AS PER PAYMENT SCHEDULE ON YEAR TO YEAR BASIS. WE ARE RESP ECTFULLY MENTIONING THIS JUDGMENT IN ALL FAIRNESS. 2. ADDITIONAL GROUNDS OF APPEAL ITA NO. 6093/DEL/2015 & 1028/DEL/2014 11 ON 2.2.2016, THE APPELLANT FILED BEFORE THE HONBLE BENCH AN APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS. COPY OF THE SA ME WAS ALSO GIVEN TO LD. LD. DT IN THE BENCH. FOLLOWING TWO ADDITIONAL GR OUNDS HAVE BEEN RAISED BY THE APPELLANT: 1. THAT ON FACTS AND IN LAW, THE LEARNED ASSESSING OFFICER (LD. AO) HAS ERRED IN ASSESSING THE LONG TERM CAPITAL GAIN ON SAL E OF RIGHT IN PROPERTY BEARING NO. B-221, FLORENCE MARVEL, GURGAON IN AY 2 009-10 ON PROTECTIVE BASIS RATHER THAN ON SUBSTANTIVE BASIS AS RETURNED BY THE APPELLANT. THE RIGHT IN THE PROPERTY AT B-221 WAS TRANSFERRED IN T HE AY 2009-10 AND AS SUCH, THE SAME IS TAXABLE ON SUBSTANTIVE BASIS IN A Y 2009-10. 2. THAT THE LD. AO HAS ERRED IN ADDING A SUM OF RS. 90,178/- AS INTEREST INCOME FROM HDFC BANK BASED ON AN ERRONEOU S FORM 26AS. THE APPEAL WAS FIRST FIXED FOR HEARING ON 2.2.2016. THE APPEAL WAS FILED BY SOME OTHER COUNSEL AND WE WERE ENGAGED FOR ARGUING THIS MATTER. ON THE FIRST HEARING ITSELF ON OUR NOTICE OF OMISSION OF C ERTAIN GROUNDS OF APPEAL, WE FILED THE APPLICATION FOR ADMISSION OF ADDITIONA L GROUNDS. THE ADDITIONAL GROUND NO. 1 OF THE APPEAL IS A CLARI FICATORY GROUND. THE SECOND ADDITIONAL GROUND OF APPEAL WAS TAKEN BEF ORE THE LD. CIT(A) AND IT ARISES OUT OF THE ORDER OF THE LD. CIT(A) AND THE ASSESSMENT ORDER AND IS NOT A GROUND TAKEN FOR THE FIRST TIME. THE FA CTS RELATING TO THIS GROUND ARE DISCUSSED IN THE ORDER OF THE LD. CIT(A) IN PARA 7 - 7.2 AT PAGES 7 - 9 OF THE CIT(A) ORDER. THE SAID ADDITIONAL GROUNDS ARE ADMISSIBLE, INTER AL IA, IN VIEW OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF N ATIONAL THERMAL POWER COMPANY LTD. V. CIT 229 ITR 383 (SC) AND GOVERNING HI GH COURT OF DELHI IN THE CASE OF TAYLOR INSTRUMENT CO. (I) LTD. V. CI T 198 ITR 3 (DEL.). THERE IS NO PROHIBITION ON THE POWERS OF THE TRIBUNAL TO ENTE RTAIN AN ADDITIONAL GROUND WHICH ACCORDING TO THE TRIBUNAL ARISES IN THE MATTER FOR THE JUST DECISION OF THE CASE AS HELD IN CIT VS JAI PARABOLIC SPRINGS LTD [2008] 172 TAXMAN 258 (DELHI). ITA NO. 6093/DEL/2015 & 1028/DEL/2014 12 3. ADDITIONAL GROUND NO1 RELATES TO ASSESSMENT OF LONG TERM CAPITAL GAIN ON SALE OF RIGHT IN PROPERTY BEARING NO. B-221 , FLORENCE MARVEL, GURGAON IN AY 2009- 10 ON PROTECTIVE BASIS RATHER T HAN ON SUBSTANTIVE BASIS AS RETURNED BY THE APPELLANT. THE RIGHT IN THE PROPERTY AT B-221 WAS TRANSFERRED IN THE AY 2009-10 AND AS SUCH, THE SAME IS TAXABLE ON SUBSTANTIVE BASIS IN AY 2009-10 AS LTCG. LD. AO BASED ON THE AGREEMENT TO SELL DATED 08.03.2 008 HELD THAT THE TRANSFER TOOK PLACE IN AY 20008-09 AND ASSESSED THE CAPITAL GAIN AS STCG IN AY 2008-09 AS PER REASSESSMENT ORDER U/S 143(3)/ 147 DATED 03.03.2014. IN AY 2009-10, HE ASSESSED THE CAPITAL GAIN AS LTCG ON PROTECTIVE BASIS. IT IS SUBMITTED THAT THIS ISSUE IS CONSEQUENTIAL TO THE DECISION IN AY 2008- 09 WHEREIN THE APPELLANT IS DISPUTING THE ASSESSMEN T OF CAPITAL GAIN AS STCG BY THE LD. AO. THE APPEAL OF AY 2008-09 BEING IT A NO. 6093/DEL- 2015 IS ALSO FIXED FOR HEARING BEFORE YOUR HONOURS ALONGWITH THIS APPEAL. THE APPELLANT RELIES UPON ITS SUBMISSIONS IN AY 2008 -09 IN THIS MATTER. 4. ADDITIONAL GROUND NO. 2 RELATES TO ADDITION OF RS. 90,178/- AS ADDITIONAL INTEREST INCOME ON FDRS WITH HDFC BANK B ASED ON ERRONEOUS FORM 26AS. IN COMPUTATION OF INCOME, APPELLANT HAS SHOWN INTER EST INCOME ON FDRS WITH HDFC BANK AT RS. 3,78,126/- AND CLAIMED TDS THE REON AT RS.39,764/- BASED ON TDS CERTIFICATE PROVIDED BY THE BANK. WHERE AS AS PER ITS INFORMATION WITH THE LD. AO, RS. 4,68,304/- HAD BEE N PAID/CREDITED BY THE BANK ON WHICH TDS OF RS.39,764/- HAD BEEN REFLECTED . LD. AO HELD THAT AS PER SECTION 199 OF THE ACT ASSE SSEE SHOULD SHOW INCOME CORRESPONDING TO TDS CLAIMED AND ACCORDINGLY ADDED T HE DIFFERENTIAL AMOUNT OF INTEREST INCOME OF RS. 90,178/- (4,68,304 - 3,78,126) AS ADDITIONAL INTEREST INCOME. THE ASSESSEE WAS UNDER B ONAFIDE BELIEF THAT THE SAID AMOUNT OF INTEREST MAY BE SOME ACCRUED INT EREST NOT YET CREDITED TO APPELLANT. ITA NO. 6093/DEL/2015 & 1028/DEL/2014 13 BEFORE THE LD. CIT(A) THE APPELLANT EXPLAINED THAT THE ADDITION MADE IS AGAINST UNIFORMLY FOLLOWED METHOD OF ACCOUNTING INT EREST INCOME. LD. CIT(A) CONFIRMED THE ADDITION ON THE GROUND THAT THE ASSESSEE IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING AND ACCOR DINGLY INTEREST ACCRUED HAS ALSO TO BE ASSESSED AS INCOME. IT IS SUBMITTED THAT AN INCORRECT ADDITIONAL AMOUNT OF RS. 90,178/- HAS BEEN ADDED TO THE APPELLANTS INCOME AS INTEREST FR OM HDFC BANK BASED ON ERRONEOUS FORM 26AS. THIS AMOUNT OF INTEREST NEIT HER ACCRUED NOR RECEIVED BY THE APPELLANT. AS CONFIRMED BY THE BANK VIDE LETTER DATED 22.10.2014, THE DIFFERENTIAL AMOUNT OF INTEREST OF RS. 90,178/- RELATES TO REVERSAL OF EXCESS INTEREST CREDITED EARLIER BASED ON CONTRACTED RATES, BECAUSE OF PREMATURE PAYMENT OF FDRS DURING THE YEA R. PURSUANT TO REVISED TDS RETURNS FILED BY BANK LATER ON, REVISED CORRECT AMOUNT OF INTEREST OF RS. 3,78,126/-, AS RETURNED BY THE APPE LLANT, HAS BEEN REFLECTED IN REVISED FORM 26AS DATED 18.1.2016. THE APPEAL INVOLVED WAS FILED ON 21.02.2014 WHEREAS THE INCORRECT REPORTING OF INTEREST INCOME BY HDFC BANK WAS INFOR MED TO APPELLANT THEREAFTER VIDE BANK LETTER DATED 22.10.2014 FOLLOW ED BY REVISION OF FORM 26AS THEREAFTER. AS PER REVISED FORM 26AS DATED 18. 1.2016, INTEREST INCOME REFLECTED THEREIN IS 3,78,126/- AS RETURNED BY THE APPELLANT. SUBSEQUENT TO FILING OF THE APPEAL INVOLVED BEFORE HONBLE ITAT ON GAINING KNOWLEDGE OF THE REVISION OF THE FORM 26AS BASED ON REVISED TDS RETURNS FILED BY HDFC BANK, THE APPELLANT ON 2.2.2016 FILED AN APPLICATION FOR ADMISSION OF THIS ADDITIONAL GROUND OF APPEAL DISPU TING THE ASSESSMENT OF ADDITIONAL INTEREST WRONGLY ASSESSED. THIS ADDITION AL GROUND OF APPEAL DESERVES TO BE ADMITTED AND ALLOWED FOR THE REASONS AS PRAYED ABOVE AND AS PER PERMISSIBLE PROVISION OF RULE 11 INCLUDING F OR ARRIVING AT THE CORRECT TAX LIABILITY OF THE APPELLANT. THIS GROUND COULD NOT BE FILED EARLIER IN ABSENCE OF THE KNOWLEDGE OF THE SAID REVISED FOR M. COPY OF LETTER FROM HDFC BANK AND REVISED FORM 26AS ARE ATTACHED AS ANN EXURE- A & B. ITA NO. 6093/DEL/2015 & 1028/DEL/2014 14 THIS ADDITIONAL GROUND OF THE APPEAL MAY BE SENT BAC K FOR VERIFICATION AND ALLOWANCE OR BE ALLOWED AS THE HONBLE BENCH MAY DE EM FIT IN EQUITY AND JUSTICE. 7. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDE R OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE CAPITAL ASSET SOLD BY THE AS SESSEE COMES UNDER THE DEFINITION OF CAPITAL ASSET AND TRANSFER AS PER SEC TION 2(14) AND 2(47). THE HOLDING PERIOD OF THE CAPITAL ASSET WAS LESS THAN 3 6 MONTHS (09.04.2005 TO 08.03.2008). THEREFORE, THE INCOME DIRECTLY COMES U NDER THE PURVIEW OF SECTION SHORT TERM CAPITAL GAIN AND IT WILL BE TAXE D IN THE YEAR OF SALE, I.E., 2008-09. THE ASSESSEE HAS MADE ALTERNATIVE SUBMISSI ONS BEFORE THE ASSESSING OFFICER THAT IF IT IS TAXED IN THE ASSESSMENT YEAR 2008-09, THEN ON THE SAME INCOME IT CANNOT BE TAXED IN THE ASSESSMENT YEAR 20 09-10. THE ASSESSEE HAS SOLD HIS RIGHT OF BOOING IN FAVOUR OF ARDMAN SINGH ON 8 TH MARCH, 2008. ON THE DATE OF AGREEMENT TO SALE, THERE WAS PHYSICAL EXIST ENCE OF THE ASSET EITHER IN THE FORM OF CAPITAL INCOMPLETE ASSET AND OR BYWAY O F PAYMENT IN INSTALLMENT. HE FURTHER SUBMITTED THAT COST OF ACQUISITION CONSI DERED IN DIFFERENT ASSESSMENT YEARS IS ALSO CORRECT. THEREFORE, THE IN DEX COST OF ACQUISITION TAKEN BY THE LOWER AUTHORITIES IS JUSTIFIED. THE INDEX CO ST OF ACQUISITION SHOULD BE CONSIDERED FROM THE DATE OF BOOKING OF THE ASSET. I F THE DATE OF INSTALLMENT FALLS IN DIFFERENT FINANCIAL YEAR, THEN CII WOULD BE APPL IED AS PER FINANCIAL YEAR IN WHICH A PARTICULAR INSTALLMENT HAS BEEN PAID. IN RE SPECT OF ADDITION ON INTEREST AS PER FORM NO. 26AS, THE LOWER AUTHORITIES ARE JUS TIFIED IN MAKING ADDITION. FURTHER, IN RESPECT OF PROTECTIVE AND SUBSTANTIVE A DDITION, THE ASSESSING OFFICER IS JUSTIFIED IN MAKING THESE ADDITIONS. THE CASE LAWS RELIED BY THE ASSESSEE ARE NOT APPLICABLE IN THE PRESENT CASE. ITA NO. 6093/DEL/2015 & 1028/DEL/2014 15 8. AFTER HEARING BOTH THE SIDES AND PERUSING THE EN TIRE MATERIALS AVAILABLE ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW, WE NOTICE FROM THE PAPER BOOK PAGE 23 TO 26 THAT THE ASSESSEE HAS BEEN ALLOT TED PROVISIONALLY FLAT NO. B- 221 IN FLORENCE MARVEL GURGAON ON CERTAIN TERMS AND CONDITIONS AS SET OUT IN THE AGREEMENT AT A APPROXIMATE COST OF RS.1.30 CROR ES. THE PAYMENTS WERE ALSO TO BE MADE IN DIFFERENT STAGES OF COMPLETION I N INSTALLMENTS WHICH FALLS IN DIFFERENT FINANCIAL YEARS. THE ASSESSEE HAD PAID SU BSTANTIAL AMOUNT TO THE TUNE OF RS.1,03,50,000/- UPTO THE DATE OF AGREEMENT TO S ALE DATED 08.03.2008. AS PER THIS AGREEMENT TO SALE, THE ASSESSEE HAS RECEIV ED 10% AS ADVANCED MONEY. THE CONTENTS OF THE RELEVANT PART OF THE AGREEMENT TO SALE ARE AS UNDER : WHEREAS THE FIRST PARTY (M/S. R.C. NARULA & SONS H UF) IS LEGAL ALLOTTEE/OWNER OF VILLA NO. B-221, MEASURING 300 SQ . YARDS. 9. FROM THE ABOVE AGREEMENT, IT IS CLEAR THAT THE A SSESSEE WAS LEGAL OWNER/ALLOTTEE OF THE SAID BOOKING RIGHTS WHICH HAS BEEN TRANSFERRED TO ARDMAN SINGH. AS PER PARA 16 OF THE AGREEMENT MADE WITH THE BUILDER FOR OBTAINING NOC FOR TRANSFER TO OTHER PARTY IS MERE F ORMALITY WHICH HAS BEEN FULFILLED LATER ON 02.05.2008 (PLACED AT PAPER PAGE -25). WE FURTHER NOTICE FROM THE AGREEMENT MADE WITH THE BUILDER THAT THE PAYMEN TS OF VILLA WAS TO BE MADE IN INSTALLMENTS AT DIFFERENT STAGES WHICH WAS FULFILLED BY THE ASSESSEE. THUS, IN OUR CONSIDERED OPINION, THE BOOKING RIGHTS GIVEN BY THE BUILDER TO THE ASSESSEE COME WITHIN THE SCOPE OF CAPITAL ASSET AS PER SECTION 2(14) AND SALE OF SUCH RIGHTS BY THE ASSESSEE IN FAVOUR OF ARDMAN SINGH COME WITHIN THE DEFINITION OF TRANSFER AS CONTEMPLATED U/S. 2(47) O F THE ACT. RELEVANT AGREEMENTS ARE PLACED AT PAGES 26 TO 32 AND 21 TO 2 2 OF THE PAPER BOOK. IN ITA NO. 6093/DEL/2015 & 1028/DEL/2014 16 VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CA SE AND THE FINDINGS RECORDED BY THE LD. CIT(A), THE ASSESSING OFFICER H AS RIGHTLY TREATED THE INCOME FROM SALE OF B-221 AS SHORT TERM CAPITAL GAINS BECA USE THE HOLDING PERIOD WAS LESS THAN 36 MONTHS. 10. IN CASE OF PROPERTY NO. A-212, THE LD. CIT(A) H AS RIGHTLY DECIDED THE ISSUE OF COST OF ACQUISITION BY CONSIDERING THE IND EXATION AS PER INSTALLMENTS PAID IN DIFFERENT FINANCIAL YEARS. IN SUCH VIEW OF THE MATTER, THE ASSESSING OFFICER HAS RIGHTLY MADE ASSESSMENT ON SUBSTANTIVE BASIS IN ASSESSMENT YEAR 2008-09 AND PROTECTIVE ASSESSMENT IN ASSESSMENT YEA R 2009-10 BECAUSE AS WE NOTICE FROM THE FACTS, THAT THE TRANSFER WAS FOR THE SHORT TERM CAPITAL ASSET. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE , THE CASE LAWS RELIED BY THE ASSESSEE ARE NOT APPLICABLE. THEREFORE, THE LD. CIT (A) HAS RIGHTLY DECIDED THE CASE AGAINST THE ASSESSEE. AS A RESULT, THE APPEAL FOR A.Y. 2008-09 IS DISMISSED AND IN APPEAL FOR ASSESSMENT YEAR 2009-10, GROUND N OS. 1 & 2 ARE DISMISSED. 11. THE ASSESSEE HAS ALSO TAKEN ADDITIONAL GROUND I N RESPECT OF ASSESSMENT YEAR 2009-10 AND IN VIEW OF OUR ABOVE FINDINGS, THE ADDITIONAL GROUND NO. 1 ALSO DESERVES TO BE DISMISSED. IN RESPECT OF ADDIT IONAL GROUND NO. 2 REGARDING INTEREST RECEIVED FROM HDFC BANK ON TERM DEPOSIT OF RS.90,178/-, THE ASSESSEE HAS PRODUCED FORM NO. 26AS BEFORE US. IN T HIS FORM, THE TOTAL AMOUNT OF INTEREST PAID/CREDITED IS APPEARING AT RS .3,78,126/- AND TDS DEDUCTED THEREON IS RS.39,764/- WHICH ARE IN AGREEM ENT TO FORM NO. 16A ISSUED BY THE BANK. THE FORM NO. 16A WAS PRODUCED B EFORE THE ASSESSING ITA NO. 6093/DEL/2015 & 1028/DEL/2014 17 OFFICER WHO HAS NOTED DIFFERENCE IN TOTAL AMOUNT OF INTEREST BETWEEN FORM 26AS AND 16A. THEREFORE, THE ASSESSEE HAS RIGHTLY O FFERED INCOME FROM INTEREST RECEIVED FROM HDFC BANK. ACCORDINGLY, THIS GROUND IS ALLOWED. 12. IN THE RESULT, THE APPEAL FOR A.Y. 2008-09 IS D ISMISSED AND THE APPEAL FOR A.Y. 2009-10 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.02.2019. SD/- SD/- (H.S. SIDHU) (L.P. SA HU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11.02.19 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI