DILIP MANHAR PAREKH, MUMBAI V. DCIT 21(3), MUMBAI

ITA 6169/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4292 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 21-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAILASH GAIKWAD
• Assessee Lawyers: DR K SHIVARAM
• Keywords: Capital asset; Question of law; Cost of acquisition; Revised return
• Section: 143(3); 54F; 2(14); 147; 148; 54

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 6169 /MUM/2013 ( / ASSESSMENT YEAR : 2007-08) SHRI DILIP MANHAR PAREKH, NATIONAL PLASTIC, NATIONAL HOUSE, OPP ANSA A BLDG., SAKI VIHAR ROAD, CHANDIVALI, MUMBAI 400 072. / V. THE DY. COMMISSIONER OF INCOME TAX 21(3), MUMBAI. ./ PAN : AFFP4206B ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY DR. K. SHIVARAM REVENUE BY : SHRI KAILASH GAIKWAD( D.R.) / DATE OF HEARING : 28-01-2016 / DATE OF PRONOUNCEMENT : 15-04-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 6169/MUM/2013, IS DIRECTED AGAINST THE ORDER DATED 30-08-2013 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 32, MUMBAI (HEREINAFTER CA LLED THE CIT(A) ), FOR THE ASSESSMENT YEAR 2007-08, , THE APPELLATE PROCEEDING S BEFORE THE CIT(A) ARISING FROM THE ASSESSMENT ORDER DATED 23-12-2010 PASSED BY THE LEARNED ASSESSING OFFICER(HEREINAFTER CALLED THE AO) U/S 143(3) READ WITH SECTION 147 OF THE INCOME TAX ACT,1961(HEREINAFTER CALLED THE ACT). ITA 6169/MUM/2013 2 2. THE GROUNDS RAISED BY THE ASSESSEE IN THE MEMO O F APPEAL FILED WITH THE TRIBUNAL READ AS UNDER:- 1. THE LEARNED CIT (A) ERRED IN NOT FOLLOWING THE J UDGMENT OF THE HON'BLE BOMBAY HIGH COURT DELIVERED IN THE CASE OF C O-OWNER MRS. CHHAYA PAREKH AFTER THE DECISION OF HON'BLE ITAT IN ASSESSEE OWN CASE, IN RESPECT OF THE SAME TRANSACTION WHEREIN IT WAS HELD THAT DEMOLITION OF ASSET BY ASSESSEE VOLUNTARILY WOULD NOT AMOUNT TO TR ANSFER UNDER THE INCOME-TAX ACT, 1961 AND HENCE DENIAL OF EXEMPTION U /S.54F IS BAD IN LAW. 2. THE LEARNED CIT (A) ERRED IN CONCLUDING THAT THE PURCHASE OF BUNGALOW WAS SYMBOLIC AND NOT REAL AS THE SAME WAS N OT OCCUPIED BY ASSESSEE AFTER PURCHASE THOUGH THE APPELLANT HAD FILED ALL THE RELEVANT DOCUMENTS TO SHOW THAT THE BUNGALOW WAS IN A HABITABLE C ONDITION AND ALSO FILED AFFIDAVIT EXPLAINING THE REASON FOR NOT OCC UPYING THE BUNGALOW AND THE REASON FOR DEMOLISHING IT FOR RECON STRUCTION AND THAT FOR CLAIMING EXEMPTION U/S.54F ASSESSEE CAN BE OWNER OF MORE THAN ONE RESIDENTIAL HOUSE AT THE TIME OF PURCHASE OF NEW RESIDENTIAL HOUSE AND DENIAL OF EXEMPTION U/S.54F IS BAD IN LAW. SECTION 54F(3) 3. WITHOUT PREJUDICED TO THE ABOVE, THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE DENIAL OF EXEMPTION CAN BE DONE ONLY IN THE YEAR OF DEMOLITION OF THE ASSET IN ACCORDANCE WITH SECTION 54 F(3) AND NOT IN THE YEAR UNDER CONSIDERATION. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN OF INCOME WITH REVENUE ON 26-10-2007 DECLARING TOTAL INCOME O F RS.25,39,550/- , WHICH RETURN OF INCOME WAS REVISED ON 22-07-2009 BY THE A SSESSEE BY FILING REVISED RETURN OF INCOME WHEREBY INCOME RETURNED WAS REVISE D TO RS.25,49,475/- . THE NOTICE U/S 148 OF THE ACT WAS ISSUED TO THE ASS ESSEE ON 03-11-2009 WHICH WAS DULY SERVED ON THE ASSESSEE, AFTER RECORD ING REASONS FOR RE-OPENING OF THE ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT. T HE ASSESSEE FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 IN PURSUANCE OF NOTICE U/S 148 OF THE ACT, DECLARING THE SAME INCOME OF RS.25,49,475/ - AS WAS DECLARED EARLIER VIDE REVISED RETURN FILED ON 22-07-2009. ITA 6169/MUM/2013 3 THE A.O. DURING THE COURSE OF RE-ASSESSMENT PROCEED INGS OBSERVED THAT DURING THE ACCOUNTING PERIOD RELEVANT FOR THE ASSES SMENT YEAR 2007-08, THE SHOP NO. 6 AND GARAGE NO. 6A STANDING IN THE NAME O F M/S. PAREKH BROTHERS IN THE BUILDING SHOWN AS TIRUPATI SHOPPING COMPLEX, BHULABHAI DESAI ROAD, MUMBAI -400026 IS SOLD VIDE AGREEMENT DATED 01-09-2 006 FOR A CONSIDERATION OF RS. 5,40,00,000/-. IT WAS OBSERVED BY THE AO FRO M THE PURCHASE AND SALE AGREEMENTS THAT THE OWNER OF THESE PREMISES WAS M/S . PAREKH BROTHERS, A CO- OWNERSHIP CONCERN (CO-OWNERS BEING THE ASSESSEE AND SMT. CHHAYA B. PAREKH, THE ASSESSEES SISTER IN-LAW) WHICH PURCHAS ED THE SAID BUILDING ON 28-08-1981 FROM M/S. GOWANI BUILDERS PVT. LTD. . HO WEVER, THE ASSESSEE HAS CLAIMED EXEMPTION U/S. 54F OF THE ACT FROM CAPITAL GAINS TREATING THE HALF OF THE SALE PROCEEDS, AND HIS OWN SHARE BEING RS. 2,70 ,00,000/- INVESTED IN JUHU BUNGALOW (NEW ASSET), PURCHASED JOINTLY WITH S MT. CHHAYA B. PAREKH, WHO ALSO INVESTED SHARE BEING RS. 2,70,00,000/- I N THE SAID JUHU BUNGALOW (NEW ASSET). THERE IS NO MENTION OF M/S PA REKH BROTHERS ON THE AGREEMENT DRAWN FOR PURCHASE OF THE JUHU BUNGALOW. THE A.O. OBSERVED THAT THE ASSESSEE HAS INTENTIONALLY TREATED THE OWNERSHI P OF THE SHOP AND GARAGE AT TIRUPATI SHOPPING COMPLEX OF HIS OWN REPLACING T HE OWNERSHIP OF ASSOCIATION OF PERSONS(AOP) I.E. M/S. PAREKH BROTHE RS. IT HAS BEEN EVIDENTLY DONE TO CLAIM THE EXEMPTION U/S. 54F OF THE ACT WHI CH ARE AVAILABLE ONLY TO HUF AND INDIVIDUAL ASSESSEES. SINCE NO EXEMPTION U/ S. 54F OF THE ACT IS AVAILABLE TO ASSOCIATION OF PERSONS(AOP), THE ASSES SEE AND HIS ASSOCIATE SISTER-IN-LAW HAVE MADE THE CASE IN INDIVIDUAL CAPA CITY TO AVAIL THE BENEFIT NOT LEGALLY AVAILABLE TO THEM . THE A.O. OBSERVED THAT THOUGH THE AGREEMENT MADE FOR NEW BUNGALOW AT JUHU HAS BEEN PURCHASED WITHIN ONE YEAR BUT INVESTMENTS OUT OF THE SALE PROCEEDS OF SHOP AND GA RAGE IS SHOWN IN INDIVIDUAL CAPACITY OF BOTH ASSOCIATES I.E. ASSESSE E AND SMT. CHHAYA PAREKH, WHICH ACTUALLY BELONGED TO M/S. PAREKH BROTHERS, AN ASSOCIATION OF PERSONS(AOP). SINCE EXEMPTION U/S. 54F OF THE ACT C ANNOT BE CONSIDERED IN ITA 6169/MUM/2013 4 THE HANDS OF M/S. PAREKH BROTHERS, THE CLAIM IS MAD E IN CASE OF INDIVIDUALS. THE AGREEMENTS AND SEVERAL DOCUMENTS MENTIONED EARL IER EVIDENTLY CERTIFY THAT THE PROPERTIES (SHOP AND GARAGE) OWNERSHIP NEV ER STOOD IN NAME OF INDIVIDUAL CAPACITY OF THE ASSESSEE AND HIS SISTER- IN-LAW MRS, CHHAYA B. PAREKH. HENCE THE EXEMPTION U/S. 54F OF THE ACT WAS DENIED TO THE ASSESSEE. THE ASSESSEE SUBMITTED THAT HE HAD FULFILLED ALL TH E CONDITIONS FOR CLAIMING EXEMPTION U/S 54F OF THE ACT WHICH WAS FURNISHED BE FORE THE AO AS REPRODUCED HEREUNDER:- NOTE ABOUT FULFILLMENT OF CONDITIONS U/S 54F: I, MR. DILIP M. PAREKH HAS SATISFIED THE FOLLOWING C ONDITIONS FOR BEING ELIGIBLE U/S 54F. 1. THE ASSESSEE MUST BE AN INDIVIDUAL AND I AM AN INDIV IDUAL ASSESSEE. 2. THE ASSET TRANSFERRED IN SHOP NO. 06 AND GARAGE NO. 06-A OF TIRUPATI APARTMENT (HEREIN AFTER REFERRED TO AS THE PR EMISES) AND NOT ANY RESIDENTIAL HOUSE. 3. THE ASSET (THE SAID PREMISES) TRANSFERRED IS A LONG T ERM ASSET AS THE SAME WAS PURCHASED ON 25-08-2001 AND WAS SOLD ON 01 -09-2006 (I.E. AFTER A PERIOD OF 36 MONTHS) 4. I HAVE PURCHASED A RESIDENTIAL HOUSE I.E. JUHU BUNGA LOW (50% SHARE) VIDE AGREEMENT DATED 22-04-2006 WITHIN ONE Y EAR PRIOR TO THE DATE OF SALE ON 01-09-2006. 5. I HAVE INVESTED RS. 346,54,320/- IN THE NEW ASSET (J UHU BUNGALOW) WHICH IS MORE THAN THE GROSS CONSIDERATION OF RS. 2 ,70,00,000/- RECEIVED ON SALE OF THE SAID PREMISES. 6. I DO NOT OWN ANY OTHER RESIDENTIAL HOUSE ON THE DATE O F TRANSFER OF THE SAID PREMISES (I.E. 01-09-2006) 7. I HAVE NEITHER PURCHASED NOR CONSTRUCTED ANY OTHER RES IDENTIAL HOUSE AFTER THE DATE OF TRANSFER I.E. AFTER 01-09-200 6. 8. THE INCOME FROM THE SAID PREMISES WAS CHARGEABLE TO INCOME TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND THE TAX WAS PAID ACCORDINGLY. ITA 6169/MUM/2013 5 I HAVE SATISFIED ALL THE ABOVE CONDITIONS OF U/S. 54 F, HENCE I AM FULLY ENTITLED TO THE DEDUCTION AND ACCORDINGLY MY CLAIM HAS TO BE ACCEPTED.' THE A.O., HOWEVER, REJECTED THE CONTENTIONS OF THE ASSESSEE AND HELD THAT THE ASSESSEE WAS NOT THE OWNER OF THE SHOP AND GARAGE S OLD IN TIRUPATI APARTMENT IN INDIVIDUAL CAPACITY BUT THE OWNERSHIP RIGHT WAS WITH M/S. PAREKH BROTHERS. THE CLAIM OF THE ASSESSEE IS IN HI S INDIVIDUAL CAPACITY IS ERRONEOUS. FURTHER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2007-08 IN THE CASE OF MRS. CHHAYA B. PAREKH, THE OTHER CO- OWNER OF M/S. PAREKH BROTHERS, THE SPOT INQUIRIES H AD ALSO BEEN CONDUCTED AND IT WAS ASCERTAINED AND FOUND THAT THE JUHU BUNG ALOW(NEW ASSET) HAS BEEN DEMOLISHED AFTER PURCHASE BUT WITHIN 2 YEARS O F THE PURCHASE WHILE THE REQUIREMENT OF THE ACT IS THAT THE NEW RESIDENTIAL ASSET SHOULD NOT BE TRANSFERRED WITHIN 3 YEARS AND ALSO THE ASSESSEE HA S NOT CONSTRUCTED NEW BUNGALOW TILL DATE. THUS, THE AO REJECTED THE CLAIM OF THE ASSESSEE U/S 54F OF THE ACT ON THE GROUNDS THAT WHILE THE CAPITAL GAINS ARE ASSESSABLE IN THE HANDS OF THE ASSESSEE AND MRS. CHHAYA B PAREKH AS T HE ASSOCIATION OF PERSON STOOD DISSOLVED AS THE PROPERTIES (SHOP AND GARAGE) AT TIRUPATI APARTMENTS WAS DIVIDED IN THE INDIVIDUAL CAPACITY AFTER SALE O F THE SAME AND ASSOCIATION OF PERSON(AOP) STOOD DISSOLVED BUT THE INVESTMENT O F SALE CONSIDERATION OF THE SAID PREMISES OF ASSOCIATION OF PERSON DOES NOT QUA LIFY FOR EXEMPTION IN INDIVIDUAL HANDS OF THE ASSESSEE AND MRS. CHHAYA B PAREKH AND ALSO THE NEW ASSET HAS BEEN DEMOLISHED AND NO CONSTRUCTION HAS B EEN DONE WITHIN 3 YEARS AND HENCE EXEMPTION CLAIMED U/S 54F OF THE ACT WAS DENIED BY THE AO , VIDE RE-ASSESSMENT ORDERS DATED 23.12.2010 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE ACT. 4. AGGRIEVED BY THE RE-ASSESSMENT ORDERS DATED 23.1 2.2010 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE ACT., THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE CIT(A) WHICH WAS ALLOWED BY THE CIT(A) IN THE FIRST ROUND OF LITIGATION VIDE ITA 6169/MUM/2013 6 ORDERS DATED 04-07-2011 BY HOLDING THAT THE TRIBUNA L, MUMBAI HAS IN ASSESSEES OWN CASE IN EARLIER YEARS HAS HELD THAT THE SAID PROPERTY WAS HELD ON CO-OWNERSHIP BASIS AND NOT AS AN AOP AND THE AO HAS ASSESSED RENTAL INCOME IN THE HANDS OF THE ASSESSEE , THERE IS NO R EASON TO CHANGE THE SETTLED POSITION. THE CAPITAL GAINS ARE HELD TO BE CHARGEAB LE TO TAX IN THE HANDS OF THE ASSESSEE BY THE AO AND HENCE THE ASSESSEE WILL BE E NTITLED FOR DEDUCTION U/S.54F OF THE ACT ON ACQUISITION OF NEW ASSET IN T HE INDIVIDUAL NAME OF THE ASSESSEE. THE CIT(A) ALSO NOTED THAT IN THE CASE OF OTHER CO-OWNER MRS. CHHAYA B PAREKH, THE CIT(A) HAS HELD THAT THE INCOM E FROM CAPITAL GAIN SHALL BE CHARGEABLE TO TAX IN THE HANDS OF MRS. CHHAYA B PAREKH AND SHE WILL BE ENTITLED FOR DEDUCTION U/S. 54F OF THE ACT. WITH RE SPECT TO DEMOLITION OF THE NEW ASSET JUHU BUNGALOW WITHIN 2 YEARS, THE CIT(A) HELD THAT SINCE IN THE YEAR UNDER CONSIDERATION THERE WAS NO SUCH DEMOLITI ON, HENCE THE ASSESSEE WILL BE ENTITLED FOR DEDUCTION U/S.54F OF THE ACT A ND THE AO SHALL BE ENTITLED TO TAKE UP APPROPRIATE ACTION FOR VERIFYING WHETHER THERE IS ANY VIOLATION U/S. 54F(3) OF THE ACT IN THE YEAR OF DEMOLITION OF SUPE RSTRUCTURE OF THE JUHU BUNGALOW( NEW ASSET). THE MATTER WENT TO THE TRIBUNAL , MUMBAI IN THE FIR ST ROUND OF LITIGATION WHEREBY THE REVENUE FILED APPEAL AGAINST THE ORDERS OF THE CIT(A) DATED 04- 07-2011 AND THE ASSESSEE FILED CROSS OBJECTIONS IN ITA NO. 6596/MUM/2011 AND CO NO. 37/MUM/2012 RESPECTIVELY , VIDE ORDERS DATED 30-01-2013 HAD SET ASIDE THE ISSUES TO THE FILE OF THE CIT(A) FOR DE-NOVO CONSIDERATION OF THE MATTER BOTH WITH RESPECT TO REVENUE APPEAL AND THE CO FILED BY THE ASSESSEE. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE T HE TRIBUNAL, THE ASSESSEE RELIED UPON THE ORDER OF THE TRIBUNAL,MUMBAI IN THE CASE OF SMT. CHHAYA B. PAREKH IN ITA NO. 4954/MUM/2010 DATED 16.5.2012. TH E TRIBUNAL VIDE ITS ORDER IN ITA NO. 6596/MUM/2011 HAD OBSERVED THAT TH E JUDGMENT OF HONBLE APEX COURT IN THE CASE OF VANIA SILK MILLS (P) LTD. , (1991)191 ITR 647(SC) WAS OVERRULED BY THE THREE MEMBER BENCH OF HONBLE APEX COURT IN THE CASE ITA 6169/MUM/2013 7 OF MRS. GRACE COLLIS AND OTHERS, (2001)248 ITR 323( SC) , WHEREAS IN THE CASE OF THE CO-OWNER MRS. CHHAYA B. PAREKH , THE TRIBUNA L HAD FOLLOWED THE DECISION IN THE CASE OF VANIA SILK MILLS (P) LTD. W HEREIN IT WAS HELD THAT THE EXTINGUISHMENT OF RIGHT ON ACCOUNT OF DESTRUCTION O R LOSS OF ASSET DOES NOT AMOUNT TO TRANSFER. THE TRIBUNAL SUBSEQUENTLY CONSIDERED THE DECISIONS IN THE CASE OF NEELAMALAI AGRO INDUSTRIES LTD. V. CIT , (2003)259 ITR 651 (MA D. HC) RELIED UPON BY THE ASSESSEE AND IN THE CASE OF CIT V. PRADEEP KUMAR (2 006)153 TAXMAN 138 [MAD. HC) RELIED UPON BY THE REVENUE AND OBSERVED T HAT THE ISSUE HINGES AROUND THE MEANING OF EXPRESSION 'TRANSFER' 'PROVID ED IN SECTION 2(47) OF THE ACT. THE TRIBUNAL OBSERVED THAT EXPRESSION 'EXTING UISHMENT OF ANY RIGHT THEREIN' WAS THE SUBJECT MATTER OF CONSIDERATION BY THE HON'BLE SUPREME COURT IN THE CASE OF MRS. GRACE COLLIS (SUPRA) WHER EIN THEIR LORDSHIPS WERE CONCERNED WITH THE EXPRESSION 'EXTINGUISHMENT' IN T HE CONTEXT OF AMALGAMATING COMPANY BY THE ORDER OF THE COURT. THE TRIBUNAL FURTHER AFTER CONSIDERING DECISION OF HONBLE APEX COURT IN THE C ASE OF VANIA SILK MILLS PVT. LTD. (SUPRA) AS WELL AS THE LATER DECISION OF HONB LE MADRAS HIGH COURT IN THE CASE OF NEELAMALAI AGRO INDUSTRIES LTD. (SUPRA) ARR IVED AT THAT 'ANY EXTINGUISHMENT ON ACCOUNT OF ACT OF THE ASSESSEE WO ULD AMOUNT TO TRANSFER' AND THE ONLY EXCEPTION PROVIDED THEREIN WAS THE EXT INGUISHMENT ON ACCOUNT OF ACT OF GOD SUCH AS DESTRUCTION OF THE CAPITAL AS SET IN A FIRE, COMPLETE LOSS IN THE CASE OF SINKING OF A VESSEL OF THE ASSESSEE ETC . THE TRIBUNAL OBSERVED THAT IN THE INSTANT CASE, IT WAS NOT IN DISPUTE THAT THE DEMOLITION OF THE BUILDING TOOK PLACE AT THE BEHEST OF THE ASSESSEE AND IT WAS NOT AN ACT OF GOD IN WHICH EVENT, IT HAD TO BE SAID THAT DEMOLITION OF HOUSE W OULD FALL WITHIN THE DEFINITION OF 'TRANSFER'. THE TRIBUNAL FURTHER OBSE RVED THAT THIS ASPECT WAS NOT PROPERLY ANALYSED BY THE TRIBUNAL IN THE CASE OF CO -OWNER MRS. CHHAYA B. PAREKH SINCE THE SUBSEQUENT DECISION OF HON'BLE SUP REME COURT IN THE CASE OF MRS. GRACE COLLIS (SUPRA) WAS NOT BROUGHT TO THE NOTICE OF THE CO-ORDINATE ITA 6169/MUM/2013 8 BENCH. AS THE CIT(A) HAD ALSO NO OCCASION TO CONSID ER THE SAME, THE MATTER WAS SET ASIDE TO THE FILE OF THE CIT(A) WITH THE DI RECTION TO CONSIDER THE MATTER IN ACCORDANCE WITH LAW IN THE LIGHT OF THE TRIBUNAL S ABOVE OBSERVATION. IN DENOVO- PROCEEDINGS BEFORE THE CIT(A), THE ASSES SEE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE JUDGMENT OF HONBL E JURISDICTIONAL BOMBAY HIGH COURT DATED 24.1.2013 IN ITA(L) NO. 1583 OF 20 12 IN THE CASE OF CO- OWNER SMT. CHHAYA B. PAREKH WHEREIN THE HONBLE BOM BAY HIGH COURT HAS HELD THAT DEMOLITION WOULD NOT AMOUNT TO TRANSFER A ND HENCE THE ASSESSEE WAS ELIGIBLE TO CLAIM EXEMPTION U/S 54F OF THE ACT (COPY OF THE JUDGMENT PLACED IN PAPER BOOK PAGE NO. 177 TO 180). IT WAS S UBMITTED BY THE ASSESSEE THAT THE DEMOLITION OF THE STRUCTURE FOR RENOVATION WOULD NOT CONSTITUTE A TRANSFER AS ALL RIGHTS, TITLE AND INTEREST IN THE P ROPERTY CONTINUE TO BE WITH THE ASSESSEE RELYING UPON DECISION OF HONBLE SUPREME C OURT IN THE CASE OF VANIA SILK MILLS PRIVATE LIMITED (SUPRA). IT WAS SUBMITTE D THAT EXTINGUISHMENT OF ANY RIGHT IN THE CAPITAL ASSET ARISING OUT OF EXTIN GUISHMENT OF ASSET DOES NOT AMOUNT TO EXTINGUISHMENT OF RIGHTS . IT WAS SUBMI TTED THAT THE ASSESSEE HOLDS RIGHT TO OCCUPY, RIGHT TO RECONSTRUCT, RIGHT TO LEASE, RIGHT TO RENOVATE ETC, EVEN AFTER DEMOLITION OF JUHU BUNGALOW(NEW ASSET). THE ASSESSEE ALSO SUBMITTED THAT THE DECISION OF HONBLE APEX COURT I N THE CASE OF CIT V. MRS GRACE COLLIS (2001) 248 ITR 323(SC) WAS EXPLAINED I N THE CASE OF NEELAMALAI AGRO INDUSTRIES LTD. V. CIT (2003) 259 ITR 651(MAD. HC). THUS, IT WAS SUBMITTED THAT DEMOLITION OF AN ASSET DOES NOT AMOU NT TO TRANSFER AS THERE IS NO TRANSFEREE NOR THERE IS ANY CONSIDERATION. THE ASSESSEE SUBMITTED THAT THE CIT(A) IN THE FIRST ROUND OF LITIGATION HELD THAT T HERE WAS VIOLATION OF SECTION 54F(3) OF THE ACT ON DEMOLITION OF THE BUNGALOW AS ASSESSEE WAS NOT THE OWNER OF THE RESIDENTIAL HOUSE FOR A PERIOD OF THRE E YEARS AS THE RESIDENTIAL HOUSE WAS DEMOLISHED. THE ASSESSEE CONTENDED THAT THE INTERPRETATION ADOPTED BY THE CIT(A) IN FIRST ROUND OF LITIGATION WAS NOT CORRECT AS THE ASSESSEE HAS PURCHASED THE BUNGALOW WITH RIGHT TO L EASE HOLD PROPERTY AND ITA 6169/MUM/2013 9 EVEN AFTER DEMOLITION , THE SAID RIGHT WAS NOT TRAN SFERRED . THE ASSESSEE SUBMITTED THAT THE PURCHASE OF BUNGALOW CANNOT BE S AID TO BE SYMBOLIC AS AGREEMENT CLEARLY STATES THAT CONSIDERATION WAS PAI D FOR PURCHASE OF BUNGALOW AND FURTHER THE SAME WAS DEMOLISHED IN DEC EMBER, 2008 I.E. ONLY FOUR MONTHS BEFORE THE COMPLETION OF THREE YEARS FR OM THE DATE OF PURCHASE. IT WAS CONTENDED THAT THE FINDING OF THE TRIBUNAL THAT IF THE DEMOLITION WAS VOLUNTARY IT WILL AMOUNT TO TRANSFER IS CONTRARY TO THE LAW LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF THE CO-OWN ER MRS. CHHAYA B PAREKH , WHEREIN IT HAS BEEN HELD THAT DEMOLITION W ILL NOT AMOUNT TO TRANSFER. IT WAS FURTHER SUBMITTED THAT THE DECISION OF THE H ONBLE BOMBAY HIGH COURT IN THE CASE OF THE CO-OWNER MRS. CHHAYA B PAREKH WA S NOT AVAILABLE AT THE TIME OF HEARING BEFORE THE TRIBUNAL AND THE DECISIO N OF THE HONBLE BOMBAY HIGH COURT WHICH IS A JURISDICTIONAL HIGH COURT IS BINDING ON THE TAX- AUTHORITIES AND HENCE IT MAY BE HELD THAT DEMOLITIO N WILL NOT AMOUNT TO TRANSFER. WITHOUT PREJUDICE, IT WAS SUBMITTED THAT THERE IS NO REQUIREMENT TO RECONSTRUCT THE BUNGALOW WITHIN 3 YEARS AS (A) THER E IS NO TRANSFER IN THE FIRST PLACE (B) THE ENTIRE NET CONSIDERATION FROM THE SAL E OF ORIGINAL ASSET IS LESS THAN THE PURCHASE COST OF RIGHT IN LAND AND BUNGALO W THEREON AND (C) EVEN OTHERWISE THERE IS NO REQUIREMENT TO COMPLETE THE C ONSTRUCTION WITHIN THREE YEARS . THE ASSESSEE PLACED RELIANCE ON THE DECISI ON OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V. SARDARMAL KOTHARI AND A NR. (2008) 302 ITR 286 (MAD). THE ASSESSEE SUBMITTED THAT NO INDEPENDENT D UE DILIGENCE WAS DONE AND THE ASSESSEE AND HIS FAMILY MEMBERS VISITED THE SITE AND WERE SATISFIED THAT BUNGALOW WAS CAPABLE OF BEING USED AND OCCUPIE D . THE ASSESSEE SUBMITTED THAT NO NOTICE /DOCUMENT SUGGESTING INTER IOR REPAIRS, DEMOLITION WAS RECEIVED AT THE TIME OF /SUBSEQUENT TO PURCHASE . THE ASSESSEE SUBMITTED THE COPY OF THE SURVEY REPORT CONDUCTED BY THE LOCA L AUTHORITY BEFORE GRANT OF PERMISSION FOR REDEVELOPMENT. THE SURVEY REPORT CLE ARLY INDICATED THAT THE BUNGALOW WAS DEMOLISHED IN DECEMBER 2008 AND BEFORE THAT THE SAME REPRESENTED A HOUSE WHICH ESTABLISHES THAT THE BUNG ALOW WAS DEMOLISHED 2 ITA 6169/MUM/2013 10 YEARS AND 8 MONTHS AFTER PURCHASE BY THE ASSESSEE . THE ASSESSEE REFERRED TO THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CA SE OF NEELAMALAI AGRO INDUSTRIES LTD. (SUPRA) WHEREIN IT WAS HELD THAT TH E DECISION IN THE CASE OF MRS. GRACE COLLIS (SUPRA) IS NOT APPLICABLE TO DEMO LITION OF ASSET, HENCE THERE WAS NO NEED FOR THE HONBLE BOMBAY HIGH COURT IN TH E CASE OF CO-OWNER SMT. CHHYA PAREKH TO CONSIDER THE DECISION OF MRS. GRACE COLLIS (SUPRA). THE ASSESSEE FURTHER SUBMITTED THAT THE TRIBUNAL HAS PR IMA FACIE GIVEN A FINDING THAT VOLUNTARY DEMOLITION WOULD AMOUNT TO TRANSFER. THE ASSESSEE CONTENDED THAT THE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF MRS CHHAYA B PAREKH IS THE ONLY DECISION ON THE POINT OF VOLUNTA RY DEMOLITION WHICH BEING DECISION OF JURISDICTIONAL HIGH COURT IS BINDING ON THE TAX-AUTHORITIES. THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE REJECTED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S. 54F OF THE ACT AND HELD THAT THE SAID JUHU BUNGALOW(NEW ASSET) AFTER BEING ACQUIRED BY TH E ASSESSEE WAS NEVER OCCUPIED BY THE ASSESSEE AND IT WAS A SYMBOLIC PUR CHASE OF RESIDENTIAL PROPERTY AND NO DEDUCTION U/S 54F OF THE ACT CAN B E ALLOWED AS IT IS NOT A REAL PURCHASE OF RESIDENTIAL HOUSE PROPERTY. FURT HER, IT WAS HELD THAT DEMOLITION OF THE BUNGALOW TOOK PLACE AT THE BEHEST OF THE ASSESSEE AND IT IS NOT AN ACT OF GOD AND HENCE DEMOLITION OF THE BUNGA LOW WITHIN THREE YEARS AMOUNT TO TRANSFER IN VIEW OF DECISION OF HONBLE S UPREME COURT IN THE CASE OF GRACE COLLIS (SUPRA) AND ACCORDINGLY THE ASSESSE E IS NOT ENTITLED FOR DEDUCTION U/S. 54F OF THE ACT. THE DECISION IN THE CASE OF CO-OWNER SMT. CHHAYA B. PAREKH BY THE HONBLE HIGH COURT HAS BEEN DONE WITHOUT CONSIDERATION OF THE LATER DECISION OF THE HON'BLE APEX COURT IN THE CASE OF GRACE COLLIS AND OTHERS (SUPRA) WHEREIN THE DECISIO N IN THE CASE OF VANIA SILK MILLS PVT. LTD. (SUPRA) HAS BEEN OVERRULED BY THE T HREE MEMBER BENCH OF HON'BLE APEX COURT IN GRACE COLLIS(SUPRA). ACCORDIN GLY IN THE HUMBLE VIEW OF THE CIT(A) THE DECISION OF-HONBLE BOMBAY HIGH COUR T IN THE CASE OF CO-OWNER SMT. CHHAYA B. PAREKH WOULD NOT HAVE BINDING PRECED ENCE IN DECIDING THE ITA 6169/MUM/2013 11 CASE ON HAND. THE CIT(A) HELD THAT SINCE THERE WAS ONLY SYMBOLIC PURCHASE OF PROPERTY AND NOT REAL PURCHASE OF PROPERTY, DEDU CTION U/S 54F OF THE ACT SHALL NOT BE ALLOWABLE, THE QUESTION OF TRANSFER ON ACCOUNT OF DEMOLITION WOULD NOT ARISE AND IS ACADEMIC ESPECIALLY IN THE Y EAR UNDER CONSIDERATION. THUS, PROVISIONS OF SECTION 54F(3) OF THE ACT WILL BE APPLICABLE ONLY IN THE ASSESSMENT YEAR 2009-10 AS THE BUNGALOW WAS DEMOLIS HED IN DECEMBER 2008.THE CIT(A) PARTLY ALLOWED THE APPEAL OF THE AS SESSEE AS SET OUT ABOVE VIDE ORDERS DATED 30-08-2013. 5. AGGRIEVED BY THE ORDERS DATED 30-8-2013 OF THE C IT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS BEEN DENIED THE DEDUCTION U/S 54F OF THE ACT. THE ASSESS EE HAS DULY PURCHASED AND MADE INVESTMENT IN THE RESIDENTIAL BUNGALOW AT JUHU(NEW ASSET) ALONG WITH CO-OWNER SMT. CHHAYA B. PAREKH. THE SAID BUNG ALOW WAS DEMOLISHED FOR THE PURPOSES OF REDEVELOPMENT. THE HONBLE BOM BAY HIGH COURT IN THE CASE OF CO-OWNER SMT. CHHAYA B PAREKH IN INCOME TAX APPEAL NO. 1583 OF 2012 VIDE JUDGMENT DATED 24 TH JANUARY, 2013 HAD HELD THAT DEMOLITION OF RESIDENTIAL BUNGALOW WILL NOT TANTAMOUNT TO TRANSFE R AND HENCE THE SAME WILL NOT BE HIT BY PROVISIONS OF SECTION 54F(3) OF THE A CT. FURTHER, IN THE CASE OF MRS CHHAYA B PAREKH WHO WAS CO-OWNER WITH THE ASSES SEE OF THE PROPERTIES (SHOP AND GARAGE ) AT TIRPUATI SHOPPING COMPLEXT ON THE SALE OF WHICH CAPITAL GAINS HAD ARISEN TO BOTH THE ASSESSEE AND MRS CHHA YA B PAREKH , THE REVENUE HAS NOT CHALLENGED THE ENTITLEMENT OF MRS C HHAYA B PAREKH TO DEDUCTION U/S 54F OF THE ACT ON THE PURCHASE OF JUH U BUNGALOW PROPERTY(NEW ASSET) , THEN ON THE PRINCIPLES OF PA RITY, THE ASSESSEE SHOULD ALSO BE ALLOWED TO BE ENTITLED FOR DEDUCTION U/S.54 F OF THE ACT AS THE ASSESSEE HAD ALSO MADE INVESTMENT IN THE SAME RESIDENTIAL B UNGALOW AT JUHU ALONG WITH MS. CHHAYA B PAREKH WHO ALSO INVESTED IN THE S AID JUHU BUNGALOW AND ITA 6169/MUM/2013 12 HER CLAIM OF DEDUCTION U/S. 54F WAS ALLOWED BY THE REVENUE AND IT WAS NOT CHALLENGED BEFORE THE HONBLE BOMBAY HIGH COURT ON THE GROUND THAT INVESTMENT IN JUHU BUNGALOW TANTAMOUNT TO SYMBOLIC PURCHASE OF RESIDENTIAL PROPERTY AND NOT REAL PURCHASE OF THE RESIDENTIAL PROPERTY. THE DECISION OF THE HONBLE BOMBAY HIGH COURT WAS AVAIL ABLE BEFORE THE CIT(A) AT THE TIME OF ADJUDICATION OF THE APPEAL IN THE CASE OF THE ASSESSEE. THE CIT(A) REFUSED TO CONSIDER AND FOLLOW THE SAID DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF MRS. CHHAYA B. PAREKH ON IDENTICAL F ACTS WITH RESPECT TO SAME TRANSACTION OF SALE OF PROPERTY (SHOP AND GARAGE) A T TIRUPATI SHOPPING COMPLEX, WHERE-IN THE ASSESSEE WAS CO-OWNER WITH SA ID MRS CHHAYA B. PAREKH AS WELL WITH RESPECT TO PURCHASE OF JUHU BUN GALOW(NEW ASSET) WHICH WAS ALSO JOINTLY PURCHASED BY THE ASSESSEE ALONG WI TH THE SAID MRS. CHHAYA B PAREKH AND THEREAFTER THE SAID BUNGALOW WAS DEMOL ISHED AFTER 2 YEARS AND 8 MONTHS AFTER ITS ACQUISITION BY THE ASSESSEE AND SAID MRS CHHAYA B. PAREKH WHO IS SISTER-IN-LAW OF THE ASSESSEE. 7. THE LD. D.R. SUBMITTED THAT THE DESTRUCTION OF A SSET WAS INVOLUNTARY DUE TO FIRE IN THE CASE OF VANIYA SILK MILLS PRIVAT E LIMITED(SUPRA) WHILE IN THE CASE OF THE ASSESSEE IT WAS A VOLUNTARY ACT OF DEMO LITION OF THE BUNGALOW. THERE WAS A TRANSFER OF ASSET HENCE IT IS AN EXTING UISHMENT OF RIGHT OF THE ASSESSEE IN THE BUNGALOW.THE CIT(A) HAS GIVEN A FIN DING THAT IT WAS DUE TO INTERVENTION OF THE ASSESSEE THAT THE JUHU BUNGALOW (NEW ASSET) WAS DEMOLISHED PRIOR TO COMPLETION OF THREE YEARS FROM THE DATE OF ACQUISITION WHICH HAS VIOLATED PROVISIONS OF SECTION 54F(3) OF THE ACT. THE LD. DR ALSO TRIED TO DISTINGUISH THE CASE OF THE ASSESSEE WITH THAT OF MRS. CHHAYA B PAREKH WHICH WAS ADJUDICATED BY HONBLE BOMBAY HIGH COURT. 8. THE LD. AR SUBMITTED IN REJOINDER THAT JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF MRS. CHHAYA B PAREKH HAS NOT B EEN FOLLOWED BY CIT(A) DESPITE BEING BROUGHT TO THE NOTICE OF THE CIT(A). THE FACTS IN THE CASE OF MRS ITA 6169/MUM/2013 13 CHHAYA B PAREKH AND OF THE ASSESSEE ARE IDENTICAL A ND HENCE THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF MRS CHHAYA B PAREKH NEED TO BE FOLLOWED IN THE CASE OF THE ASSESSEE AND RELIEF NEE D TO BE GIVEN TO THE ASSESSEE ON THE SAME LINES. 9. WE HAVE CONSIDERED THE RIVAL CONTENTION AND ALSO PERUSED THE MATERIAL INCLUDING THE CASE LAWS CITED BY BOTH THE SIDES. W E HAVE OBSERVED THAT THE ASSESSEE IS CO-OWNER OF THE PREMISES BEING SHOP NO. 6 AND GARAGE NO. 6A STANDING IN THE NAME OF M/S PAREKH BROTHERS IN THE BUILDING KNOWS AS TIRUPATI SHOPPING COMPLEX, BHULABHAI DESAI ROAD, MU MBAI-400026 WHICH WAS ACQUIRED BY THE ASSESSEE ALONG WITH HIS SISTER- IN-LAW, MRS CHHAYA B. PAREKH AND WAS HELD TO BE OWNED ON CO-OWNERSHIP BAS IS BY THE TRIBUNAL. THE SAME HAS BEEN SOLD AND THE ASSESSEE HAS ACQUIRE D THE RESIDENTIAL BUNGALOW(NEW ASSET) AT JUHU ALONG WITH HIS SISTER-I N-LAW MRS. CHHAYA B. PAREKH. THE CIT(A) DENIED THE BENEFIT TO THE ASSES SEE DUE TO THE FACT THAT THE BUNGALOW WHICH WAS PURCHASED HAS BEEN DEMOLISHED WI THIN A PERIOD OF THREE YEARS HENCE THE CONDITION LAID DOWN IN SECTION 54F( 3) OF THE ACT HAVE BEEN VIOLATED. HOWEVER, THE HONBLE BOMBAY HIGH COURT I N THE CASE OF MRS.CHHAYA B. PAREKH HAS REFUSED TO ADMIT THE QUEST ION OF LAW REFERRED BY THE REVENUE AND DISMISSED THE APPEAL OF THE REVENUE BY APPROVING THE DECISION OF THE TRIBUNAL IN THE CASE OF MRS CHHAYA B PAREKH WHERE-IN IT WAS HELD BY HONBLE BOMBAY HIGH COURT THAT DEMOLITION O F BUNGALOW WILL NOT TANTAMOUNT TO TRANSFER. WHILE DISMISSING THE SAID A PPEAL OF THE REVENUE, HONBLE BOMBAY HIGH COURT HAS CLEARLY NOTED IN THE JUDGMENT THAT REVENUE IS NOT DISPUTING THE ENTITLEMENT OF MRS CHHAYA B PA REKH U/S.54F OF THE ACT ON THE PURCHASE OF BUNGALOW PROPERTY(NEW ASSET). TH E FACTS IN THE CASE OF THE ASSESSEE ARE IDENTICAL TO THE FACTS IN THE CASE OF MRS CHHAYA B. PAREKH AS THE TRANSACTIONS WITH RESPECT TO THE SALE AND PURCHASE OF THE IMPUGNED PROPERTIES ARE SAME WHERE BOTH, THE ASSESSEE AND MR S CHHAYA B PAREKH ARE CO-OWNERS. THE JUDGMENT OF HONBLE BOMBAY HIGH COUR T IN THE CASE OF MRS. ITA 6169/MUM/2013 14 CHHAYA B. PAREKH AS REPORTED IN 2013 TAXPUB(DT) 1 390 (BOM-HC) : (2013) 051 (I) ITCL 0292 WHEREBY THE HONBLE BOMBAY HIGH C OURT DISMISSED THE APPEAL OF THE REVENUE AND APPROVING THE ORDERS OF T HE TRIBUNAL DISMISSING THE APPEAL OF THE REVENUE IN THE CASE OF MRS CHHAYA B PAREKH IS REPRODUCED HEREUNDER: IN THIS APPEAL BY THE REVENUE, THE FOLLOWING QUEST ION OF LAW HAS BEEN PROPOSED FOR OUR CONSIDERATION. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS CORRECT IN CONFIRMING THE ORDER OF CIT (A) ALLOWING THE ASSESSEES CLAIM OF EXEMPTION U/S 54F OF THE ACT EVE N THOUGH THE JUHU BUNGALOW WHICH THE ASSESSEE HAD PURCHASED AS CO-OWN ER HAD BEEN DEMOLISHED MUCH BEFORE COMPLETING 3 YEARS OF PURCHA SE AND NO NEW BUNGALOW WAS CONSTRUCTED THEREBY VIOLATING THE COND ITION U/S 54F(3) OF THE ACT THAT THE NEW PROPERTY SHOULD NOT BE TRANSFE RRED WITHIN A PERIOD OF THREE YEARS AND ALSO IGNORING THAT THE FACTS IN THE SUPREME COURT CASE OF VANIA SILK MILLS P. LTD. V. CIT (1991) 191 ITR 647 (SC) WERE CLEARLY DISTINGUISHABLE FROM THE FACTS OF THIS CASE? 2. THE BASIC DISPUTE BETWEEN THE PARTIES IS WHETHER T HE RESPONDENT- ASSESSEE IS ENTITLED TO BENEFIT OF SECTION 54E OF T HE INCOME TAX ACT, 1961 (THE ACT) WHEN THE ASSET IS DEMOLISHED WITHIN A PER IOD OF THREE YEARS FROM ITS PURCHASE. 3. THE REVENUE DOES NOT DISPUTE THE ENTITLEMENT OF\ TH E RESPONDENT- ASSESSEE UNDER SECTION 54F OF THE ACT ON THE PURCHA SE OF THE BUNGALOW PROPERTY. HOWEVER, THE GRIEVANCE OF THE REVENUE IS THAT AS THE RESPONDENT HAD DEMOLISHED THE BUNGALOW WITHIN 3 YEARS OF ITS P URCHASE, THE SAME WOULD AMOUNT TO TRANSFER AND WOULD BE HIT BY SECTIO N 54F(3) OF THE ACT. CONSEQUENTLY, IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR ITA 6169/MUM/2013 15 UNDER CONSIDERATION THE CAPITAL GAIN TAX WOULD BE P AYABLE ON THE AMOUNTS NOT CHARGED DUE TO THE BENEFIT AVAILED OF S ECTION 54F OF THE ACT AS HELD BY THE ASSESSING OFFICER IN HIS ORDER DATED 30-10-2009. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) (THE CIT (A) BY HIS ORDER DATED 18-03-2010 FALLOWED THE APPEAL OF THE RESPOND ENT-ASSESS. THE CIT(A) HELD THAT THE DEMOLITION OF THE STRUCTURE WO ULD NOT CONSTITUTE A TRANSFER OF THE ASSETS IN TERMS OF SECTION 54(3) OF THE ACT. BEING AGGRIEVED THE REVENUE CARRIED THE MATTER IN APPEAL TO THE TRI BUNAL. BY ORDER DATED 16-05-2012, THE TRIBUNAL DISMISSED THE 'APPEAL OF T HE REVENUE BY PLACING RELIANCE UPON HE DECISION OF THE APEX COURT IN THE MATTER OF VANIA SILK MILLS P. LTD. V. CIT (1991) 191 ITR 647 (SC). IN TH E ABOVE CASE, THE APEX COURT HAS HELD THAT WHEN AN ASSET IS DESTROYED, THE RE IS NO QUESTION OF TRANSFER TAKING PLACE UNDER THE ACT. THE APEX COURT HELD THAT IN TERMS OF THE ACT THAT THE WORDS EXTINGUISHMENT OF ANY RIGHT IN SECTION 2(47) OF THE ACT, DOES NOT INCLUDE AN EXTINGUISHMENT OF RIGHT ON ACCOUNT OF DESTRUCTION. IT HAS TO BE AN EXTINGUISHMENT OF RIGH T ON ACCOUNT OF TRANSFER. THUS, A DESTRUCTION OF ASSETS WHEN NOT ON ACCOUNT O F ANY TRANSFER WOULD NOT BE HIT BY SECTION 54F (3) OF THE ACT. 5. COUNSEL FOR THE REVENUE SEEKS TO DISTINGUISH THE D ECISION OF THE APEX COURT IN VANIA SILK MILLS P. LTD. (SUPRA) THAT THE DESTRUCTION IN THAT CASE TOOK PLACE BECAUSE OF FIRE AND HENCE IT WAS INVOLUN TARY THIS DISTINCTION IS OF NO CONSEQUENCE. IN OUR VIEW OF THE DECISION OF T HE APEX COURT IN VANIA SILK MILLS (SUPRA) WOULD SQUARELY APPLY TO THE FACT S OF THE PRESENT CASE. 6. IN VIEW OF THE ABOVE, WE SEE NO REASON TO ENTERTAI N THE PROPOSED QUESTION OF LAW. ACCORDINGLY, THE APPEAL IS DISMISS ED WITH NO ORDER AS TO COSTS. ITA 6169/MUM/2013 16 THE FACTS IN THE CASE OF THE ASSESSEE IS IDENTICAL TO THE FACTS IN THE CASE OF MRS. CHHAYA B. PAREKH AND HENCE THE ASSESSEE CANNOT BE DENIED THE ENTITLEMENT TO DEDUCTION U/S. 54F OF THE ACT ON THE PURCHASE OF SAME JUHU BUNGALOW PROPERTY(NEW ASSET) ON PRETEXT THAT THE SA ME WAS SYMBOLIC PURCHASE OF RESIDENTIAL PROPERTY AND NOT THE REAL PURCHASE OF RESIDENTIAL PROPERTY ON THE ALLEGATION THAT THE SAME WAS NEVER OCCUPIED AFTER ITS ACQUISITION BY THE ASSESSEE AND THE SAID CO-OWNER M RS CHHAYA B. PAREKH TILL DEMOLITION OF THE SAID BUNGALOW AFTER 2 YEARS 8 MON THS OF ITS ACQUISITION. THE CIT(A) IS BOUND TO FOLLOW THE DECISION OF THE HONB LE BOMBAY HIGH COURT IN THE CASE OF THE ASSESSEES SISTER-IN-LAW MRS CHHAYA B PAREKH AS THE FACTS ARE IDENTICAL IN THE CASE OF THE ASSESSEE TO THAT OF TH E ASSESSEES SISTER-IN-LAW MRS CHHAYA B. PAREKH CASE, WHEREBY HONBLE BOMBAY HIGH COURT HAS REFUSED TO ADMIT THE QUESTION OF LAW REFERRED BY THE REVENUE A ND INSTEAD APPROVED THE ORDERS OF THE TRIBUNAL DISMISSING THE REVENUE APPEA L IN THE CASE OF MRS. CHHAYA B PAREKH. WHEN THE MUMBAI-TRIBUNAL SET ASIDE THE ISSUES TO THE FILE OF THE CIT(A) IN ASSESSEES OWN CASE IN FIRST ROUND OF LITIGATION VIDE ITS ORDERS DATED 30-01-2013 IN ITA NO. 6596/MUM/2011 AND CO NO . 37/MUM/2012 , IT DID NOT HAD THE BENEFIT OF JUDGMENT OF HONBLE B OMBAY HIGH COURT IN THE CASE OF MRS CHHAYA B PAREKH WHICH JUDGMENT IN ITA(L ) NO.1583 OF 2012 WAS PRONOUNCED ON 24-01-2013 , WHILE HEARING BY THE MUM BAI-TRIBUNAL IN THE AFORE-STATED APPEAL AND CO STOOD CONCLUDED ON 11-0 1-2013 I.E. PRIOR TO THE PRONOUNCEMENT OF JUDGMENT OF THE HONBLE BOMBAY HIG H COURT IN THE CASE OF MRS CHHAYA B. PAREKH(SUPRA). THE CIT(A) WHILE REND ERING ITS ORDER ON 30-08- 2013 CLEARLY HAD THE BENEFIT OF AFORE-STATED JUDGME NT OF HONBLE BOMBAY HIGH COURT PRONOUNCED ON 24-01-2013 IN THE CASE OF MRS C HHAYA B. PAREKH AND THE CIT(A) FELL INTO AN ERROR BY MAKING AN ATTEMPT TO DISTINGUISH THE JUDGMENT OF HONBLE BOMBAY HIGH COURT BY HOLDING THAT JUDGME NT OF HONBLE APEX COURT IN THE CASE OF GRACE COLLINS(SUPRA) WAS NOT B ROUGHT TO THE NOTICE OF HONBLE BOMBAY HIGH COURT WHILE JUDGMENT OF VANIA S ILK MILLS LIMITED(SUPRA) WAS BROUGHT TO THE NOTICE OF HONBLE BOMBAY HIGH CO URT, WHICH JUDGMENT OF ITA 6169/MUM/2013 17 VANIA SILK MILLS STOOD OVERRULED BY HONBLE SUPREME COURT BY THREE MEMBER BENCH OF HONBLE SUPREME COURT IN THE CASE OF GRACE COLLIS(SUPRA). THE JUDGMENT OF HONBLE SUPREME COURT IN GRACE COLLIS H AS BEEN CONSIDERED AND DISTINGUISHED BY HONBLE MADRAS HIGH COURT IN THE C ASE OF NEELAMALAI AGRO INDUSTRIES LIMITED(SUPRA) WHEREBY IT HAS HELD BY TH E HONBLE MADRAS HIGH COURT THAT THE LAW LAID DOWN IN VANIA SILK MILLS (P.) LTD.S C ASE (SUPRA), THAT EXTINGUISHMENT OF RIGHTS IN A CAPITAL ASSET AS A NE CESSARY CONSEQUENCE OF DESTRUCTION OF THE ASSET DOES NOT AMOUNT TO TRANSFE R, HAS NOT BEEN OVERRULED BY THE APEX COURT IN THE CASE OF MRS. GRACE COLLIS (SU PRA) , AS UNDER : 6. THAT THE BUILDING WAS COMPLETELY DESTROYED IN THE FIRE IS UNDISPUTED. THE CAPITAL ASSET THUS WAS NOT IN EXISTENCE WHEN TH E ASSESSEE RECEIVED THE COMPENSATION. THE ASSET WAS NOT AVAILABLE FOR B EING OWNED, USED OR ENJOYED BY ANYONE. 7. CAPITAL ASSET IS DEFINED IN SECTION 2(14) OF THE ACT. IT IS DEFINED AS MEANING PROPERTY OF ANY KIND HELD BY AN ASSESSEE WH ETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION. THE DEFI NITION OF TRANSFER IN SECTION 2(47) OF THE ACT AS IT STOOD AT THE COMMENC EMENT OF THE YEAR 1976-77 READ THUS : 'TRANSFER', IN RELATION TO A CAPITAL ASSET, INCLUDE S, (I )THE SALE, EXCHANGE OR RELINQUISHMENT OF THE ASS ET; OR (II)THE EXTINGUISHMENT OF ANY RIGHTS THEREIN; OR (III)THE COMPULSORY ACQUISITION THEREOF UNDER ANY L AW. THE MODES OF TRANSFER MENTIONED IN THIS DEFINITION ARE : SALE, EXCHANGE, COMPULSORY ACQUISITION, RELINQUISHMENT OF THE ASSET , AND EXTINGUISHMENT OF ANY RIGHTS IN THE CAPITAL ASSET. THE DEFINITION IS AN INCLUSIVE DEFINITION, ITA 6169/MUM/2013 18 AND MODES OF TRANSFER OTHER THAN THOSE REFERRED TO IN THE DEFINITION ARE ALSO CAPABLE OF BEING INCLUDED IN THIS DEFINITION. ALL THE MODES MENTIONED IN THE DEFINITION APPEAR TO HAVE ONE THING IN COMMO N VIZ., THAT THE CAPITAL ASSET WOULD CONTINUE TO EXIST AFTER THE TRANSFER BY ANYONE OF THOSE MODES. 8. CAPITAL GAINS IS DEALT WITH IN CHAPTER IV OF THE ACT IN SECTIONS 45 TO 55A. SECTION 45 OF THE ACT REFERS TO PROFITS OR GAI NS ARISING FROM THE TRANSFER OF A CAPITAL ASSET. THE SECTION WHICH BRIN GS THE CAPITAL GAINS TO CHARGE OF TAX IS SECTION 45. WHAT IS TO BE TAXED IS THE PROFIT OR THE GAIN ARISING FROM THE TRANSFER OF A CAPITAL ASSET. THI S ALSO IMPLIES THE CONTINUED AVAILABILITY OF THE ASSET EVEN AFTER THE TRANSFER. THE EXTENT OF THE GAIN IS TO BE ASCERTAINED WITH REFERENCE TO THE COST OF ACQUISITION OF THE ASSET. THE CONTINUED AVAILABILITY OF THE ASSET EVEN AFTER THE TRANSFER, THOUGH NOT STATED IN SO MANY WORDS, IS CLEARLY IMPL ICIT IN THE DEFINITION OF TRANSFER, AS ALSO IN THE CHARGING SECTION. 9. WHEN A THING IS DESTROYED BY FIRE OR WHEN A SHIP S INKS INTO THE SEA, THE CAPITAL ASSET IS NO LONGER AVAILABLE FOR BEING OWNED, USED OR ENJOYED BY ANYONE INCLUDING THE ASSESSEE. WITH THE DESTRUCT ION OF THE ASSET, THE RIGHTS OF THE ASSESSEE IN THAT ASSET ALSO WOULD BE DESTROYED. THE DESTRUCTION OF SUCH RIGHTS IN AN ASSET CONSEQUENT U PON THE ASSETS CEASING TO EXIST IS A SITUATION WHICH IS NOT CONTEMPLATED E ITHER IN THE DEFINITION OF TRANSFER, OR IN THE CHARGING SECTION. 10. THE SUPREME COURT IN THE CASE OF VANIA SILK MILLS (P.) LTD. V. CIT [1991] 191 ITR 647 1 DEALT WITH A CASE WHERE THE ASSESSEES MACHINERIES HAD BEEN DESTROYED IN A FIRE AND FOR WH ICH IT HAD RECEIVED ITA 6169/MUM/2013 19 THE AMOUNT PAYABLE BY THE INSURER WHO HAD INSURED T HOSE MACHINERIES AGAINST THE RISK OF FIRE. THE COURT IN THAT CASE HE LD THUS: 'WHEN AN ASSET IS DESTROYED THERE IS NO QUESTION OF TRANSFERRING IT TO OTHERS. THE DESTRUCTION OR LOSS OF THE ASSET, NO DO UBT, BRINGS ABOUT THE DESTRUCTION OF THE RIGHT OF THE OWNER OR POSSESSOR OF THE ASSET, IN IT. BUT IT IS NOT ON ACCOUNT OF TRANSFER. IT IS ON ACCO UNT OF THE DISAPPEARANCE OF THE ASSET. THE EXTINGUISHMENT OF R IGHT IN THE ASSET ON ACCOUNT OF EXTINGUISHMENT OF THE ASSET ITSELF IS NOT A TRANSFER OF THE RIGHT BUT ITS DESTRUCTION. BY NO STRETCH OF IMAGINA TION CAN THE DESTRUCTION OF THE RIGHT ON ACCOUNT OF THE DESTRUCT ION OF THE ASSET BE EQUATED WITH THE EXTINGUISHMENT OF RIGHT ON ACCOUNT OF ITS TRANSFER.' THUS, THE COURT HELD THAT THE DESTRUCTION OF THE AS SET WHICH, AS A CONSEQUENCE BRINGS ABOUT THE EXTINGUISHMENT OF RIGH TS IN THAT ASSET, CANNOT BE EQUATED WITH THE EXTINGUISHMENT OF RIGHTS OF THE ASSESEE ON THE TRANSFER OF THE ASSET. 11. THIS COURT IN THE CASE OF SMT. AGNES CORERA V. CIT [2001] 249 ITR 317 2 DEALT WITH A CASE WHERE THE BOAT OWNED BY THE ASSE SSEE AND WHICH HAD BEEN INSURED AGAINST LOSS, SANK IN THE SEA. THE COURT HELD THAT THE AMOUNT RECEIVED BY THE ASSESSEE FROM THE INSURER WH O HAD INSURED THE BOAT AGAINST SUCH LOSS WAS NOT TAXABLE BY TREATING PART OF THE AMOUNT RECEIVED FROM THE INSURER AS CAPITAL GAIN. WHILE DOING SO, T HE COURT RELIED UPON THE OBSERVATION OF THE APEX COURT IN THE CASE OF VANIA SILK MILLS (P.) LTD. (SUPRA) THAT, ITA 6169/MUM/2013 20 'WHATEVER THE MODE BY WHICH THE TRANSFER WAS BROUGH T ABOUT, THE EXISTENCE OF THE ASSET DURING THE PROCESS OF TRANSF ER WAS A PRECONDITION. UNLESS THE ASSET EXISTED IN FACT, THERE COULD NOT B E A TRANSFER OF IT.' 12. LEARNED COUNSEL FOR THE REVENUE, HOWEVER, CONTENDE D THAT THE LAW DECLARED BY THE APEX COURT IN THE CASE OF VANIA SIL K MILLS (P.) LTD. (SUPRA) IS NO LONGER GOOD LAW, AND THAT THAT DECISION HAS BEEN BOTH EXPRESSLY AND IMPLIDELY BEEN OVERRULED BY A THREE-JUDGE BENCH IN THE CASE OF CIT V. MRS. GRACE COLLIS [2001] 248 ITR 323 1 . IN THE CASE OF MRS. GRACE COLLIS (SUPRA), THE COURT WAS CONCERNED WITH THE QUESTION AS TO WHE THER THERE IS A TRANSFER OF THE SHARES WHEN THE AMALGAMATION OF THE COMPANY WHOSE SHARES ARE HELD BY THE ASSESSEE IS ORDERED BY THE COURT WITH A NOTHER COMPANY. THE COURT HELD THAT THE RIGHTS OF THE ASSESSEE IN THE C APITAL ASSET, VIZ., THE SHARES IN THE AMALGAMATING COMPANY STOOD EXTINGUISH ED UPON THE AMALGAMATION OF THE AMALGAMATING COMPANY WITH THE A MALGAMATED COMPANY AND THAT, 'THERE WAS, THEREFORE, A TRANSFER OF THE SHARES IN THE AMALGAMATING COMPANY WITHIN THE MEANING OF SECTION 2(47). IT WAS , THEREFORE, A TRANSACTION TO WHICH SECTION 47(VII) APPLIED AND, C ONSEQUENTLY, THE COST TO THE ASSESSEES OF THE ACQUISITION OF THE SHA RES OF THE AMALGAMATED COMPANY HAD TO BE DETERMINED IN ACCORDA NCE WITH THE PROVISIONS OF SECTION 49(2), THAT IS TO SAY, THE CO ST WAS DEEMED TO BE THE COST OF ACQUISITION BY THE ASSESSEES ON THEIR S HARES IN THE AMALGAMATING COMPANY.' 13. ON THE AMALGAMATION OF ONE COMPANY WITH ANOTHER, T HE ASSETS AND LIABILITIES OF THE AMALGAMATING COMPANY ARE TAKEN O VER BY THE AMALGAMATED COMPANY. THOSE ASSETS AND LIABILITIES DO NOT CEASE TO EXIST WHEN ITA 6169/MUM/2013 21 AMALGAMATION TAKES PLACE. THEY CONTINUE TO EXIST. T HE OWNERSHIP OF THOSE ASSETS STAND TRANSFERRED TO THE AMALGAMATED COMPANY . 14. THE RIGHTS OF THE SHAREHOLDER IN THE SHARES HELD B Y HIM OR HER IN THE AMALGAMATING COMPANY WHICH HAD OWNED THE ASSETS, AR E REPLACED BY THE RIGHTS GIVEN TO SUCH SHAREHOLDERS IN THE SHARES OF THE AMALGAMATED COMPANY WHICH TAKES OVER THE ASSETS AND LIABILITIES OF THE AMALGAMATING COMPANY. SHARES IN THE AMALGAMATED COMPANY ARE ALLO TTED TO THE SHAREHOLDER OF THE AMALGAMATING COMPANY, AS THE CON SIDERATION FOR THE TRANSFER OF THE ASSETS OF THE AMALGAMATING COMPANY, THE RATIO BEING DETERMINED WITH REFERENCE TO THE VALUE OF THE RESPE CTIVE SHARES WHICH IS DEPENDENT UPON THE VALUE OF THE ASSETS AND PROSPECT S OF THE COMPANY. DESPITE THE EXTINGUISHMENT OF THE RIGHTS IN THE SHA RES OF THE AMALGAMATING COMPANY ON ITS DISSOLUTION, THE ASSETS WHICH GAVE V ALUE TO THOSE SHARES PRIOR TO AMALGAMATION CONTINUE TO EXIST, NOW UNDER THE OWNERSHIP OF THE AMALGAMATED COMPANY, AND MAY PROVIDE ADDED VALUE TO THE SHARES OF THAT COMPANY. 15. THE EXTINGUISHMENT OF RIGHTS IN THE CAPITAL ASSET REFERRED TO IN THE DEFINITION OF TRANSFER IN SECTION 2(47) OF THE AC T, THEREFORE, WOULD CLEARLY APPLY TO A CASE WHERE THE RIGHTS IN THE SHARES IN T HE AMALGAMATING COMPANY ARE EXTINGUISHED ON AMALGAMATION TO BE REPL ACED BY SHARES IN THE AMALGAMATED COMPANY, WHICH AFTER AMALGAMATION IS TH E OWNER OF THE ASSETS TRANSFERRED TO IT AS A CONSEQUENCE OF THE AM ALGAMATION, AND WHICH WILL THEREAFTER HAVE THE OWNERSHIP, USE AND BENEFIT OF THOSE ASSETS. 16. THE CASE OF AMALGAMATION OF COMPANIES AND THE EXTI NGUISHMENT OF RIGHTS OF THE SHAREHOLDER IN THE AMALGAMATING COMPA NY IS NO WAY ITA 6169/MUM/2013 22 COMPARABLE TO THE DESTRUCTION OF THE ASSETS WHICH A S A CONSEQUENCE BRINGS ABOUT THE EXTINGUISHMENT OF THE RIGHTS OF THE ASSES SEE-OWNER IN SUCH ASSETS. 17. IN THE CASE OF MRS. GRACE COLLIS (SUPRA), AT PAGE 330 OF THE REPORTS, THE COURT NOTICED THE SUBMISSION MADE BY COUNSEL FOR TH E REVENUE THUS: 'LEARNED COUNSEL FOR THE REVENUE SUBMITTED THAT HAV ING HELD THAT THE PAYMENT IN SETTLEMENT OF THE INSURANCE CLAIM WAS NO T IN CONSIDERATION OF THE TRANSFER TO THE INSURER OF THE DAMAGED MACHI NERY AND THAT, THEREFORE, THERE WAS NO TRANSFER WITHIN THE MEANING OF SECTION 45, IT WAS UNNECESSARY FOR THIS COURT IN VANIA SILK MILLS (P.) LTD.S CASE [1991] 191 ITR 647 TO GO ON TO CONSIDER THE DEFINITION IN SECTION 2(4 7) AND THE MEANING TO BE ATTACHED TO THE EXPRESSION E XTINGUISHMENT OF ANY RIGHTS THEREIN. IN HIS SUBMISSION, THE DECISIO N IN VANIA SILK MILLS (P.) LTD.S CASE [1991] 191 ITR 647 WAS TO THIS EXTENT ORBITER DICTA'. IT IS ONLY TO THE EXTENT OF THAT ORBITER DICTA, THA T THE DECISION RENDERED IN THE CASE OF MRS. GRACE COLLIS (SUPRA) CAN BE SAID TO BE AT VARIANCE WITH THE DECISION RENDERED IN THE CASE OF VANIA SILK MILLS ( P.) LTD. (SUPRA). IN THE CASE OF MRS. GRACE COLLIS (SUPRA), THE COURT CONSIDERED THE TERMS EXTINGUISHMENT OF ANY RIGHTS THEREIN AND THE DEFINITION OF TRANS FER IN SECTION 2(47) OF THE ACT. THE COURT DID NOT APPROVE LIMITING THE EFFECT OF THE WORDS EXTINGUISHMENT OF ANY RIGHTS THEREIN IN THE DEFIN ITION OF TRANSFER IN SECTION 2(47) OF THE INCOME-TAX ACT, TO EXTINGUISHMENT ON A CCOUNT OF TRANSFER. THE COURT HELD, ITA 6169/MUM/2013 23 'AS WE READ IT, THEREFORE, THE EXPRESSION DOES INCL UDE THE EXTINGUISHMENT OF RIGHTS IN A CAPITAL ASSET INDEPENDENT OF AND OTH ERWISE THAN ON ACCOUNT OF TRANSFER.' 18. IN THE CASE OF MRS. GRACE COLLIS (SUPRA), THE COUR T DID NOT HAVE OCCASION TO GO INTO THE QUESTION AS TO WHETHER THE DESTRUCTI ON OF A CAPITAL ASSET WHICH AS A CONSEQUENCE BRINGS ABOUT THE EXTINGUISHMENT OF THE RIGHTS OF THE ASSESSEE-OWNER IN SUCH ASSET, WOULD AMOUNT TO TRANS FER. THE COURT DID NOT HOLD THAT VANIA SILK MILLS (P.) LTD.S CASE (SUPRA) WAS WRONGLY DECIDED, OR THAT THE DEFINITION OF TRANSFER IN SECTION 2(47), PARTICULARLY, THE USE OF THE WORDS EXTINGUISHMENT OF ANY RIGHTS THEREIN WOULD COVER CASES OF DESTRUCTION OF THE CAPITAL ASSET. CASES SUCH AS THE DESTRUCTION OF THE CAPITAL ASSET IN A FIRE, OR ITS COMPLETE LOSS AS IN THE CAS E OF SINKING OF A VESSEL IN THE SEA, CANNOT BE REGARDED AS HAVING BEEN BROUGHT WITH IN THE FOLD OF DEFINITION OF TRANSFER IN SECTION 2(47), BY REASON OF WHAT H AS BEEN SAID AND LAID DOWN IN THE CASE OF MRS. GRACE COLLIS (SUPRA). 19. IT IS WELL-SETTLED THAT THE WORDS AND EXPRESSION U SED IN A JUDGMENT ARE NOT TO BE READ AS STATUTORY PROVISIONS. SITUATIONS WHICH DID NOT ARISE FOR CONSIDERATION AND WERE, IN FACT, NOT CONSIDERED ARE NOT TO BE REGARDED AS HAVING BEEN CONSIDERED. IT IS SIGNIFICANT THAT THE ARGUMENT ADVANCED FOR THE REVENUE BEFORE THE COURT IN THE CASE OF MRS. GRACE COLLIS (SUPRA) WAS NOT THAT THE CASE OF VANIA SILK MILLS (P.) LTD. (SUPRA) WAS WRONGLY DECIDED. ON THE OTHER HAND, THE ARGUMENT BEFORE THE COURT WAS T HAT THOUGH THAT DECISION ON FACTS WAS CORRECT, CERTAIN OBSERVATIONS WHICH WE RE NOT NECESSARY FOR THE CASE AND WHICH THE REVENUE CONSIDERED TO BE ERRONEO US HAD BEEN MADE, AND WERE REQUIRED TO BE OVERRULED. ITA 6169/MUM/2013 24 20. THE LAW LAID DOWN IN VANIA SILK MILLS (P.) LTD. S CASE (SUPRA), THAT EXTINGUISHMENT OF RIGHTS IN A CAPITAL ASSET AS A NECESSARY CONSEQUENCE OF DESTRUCTION OF THE ASSET DOES NOT AM OUNT TO TRANSFER, HAS NOT BEEN OVERRULED BY THE APEX COURT IN THE CAS E OF MRS. GRACE COLLIS (SUPRA). 21. OUR ANSWER TO THE QUESTION REFERRED IS, THEREFORE, IN THE NEGATIVE, IN FAVOUR OF THE ASSESSEE, AND AGAINST THE REVENUE. JUDICIAL DISCIPLINE AND RULE OF LAW DEMAND AND REQU IRES THAT LOWER JUDICIAL AUTHORITIES SHOULD AND MUST FOLLOW THE DECISIONS/JU DGMENT OF HIGHER JUDICIAL AUTHORITIES ON IDENTICAL FACTS. THUS, THE CIT(A) WA S BOUND BY LAW TO FOLLOW THE JURISDICTIONAL HIGH COURT JUDGMENT IN THE CASE OF M RS CHHAYA B. PAREKH(SUPRA) . IN OUR CONSIDERED VIEW THAT THIS IN STANT CASE IS SQUARELY COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COUR T IN THE CASE OF MRS CHHAYA B. PAREKH(SUPRA) AND HENCE THE ASSESSEE IS E NTITLED FOR HIS CLAIM OF DEDUCTION U/S 54 F OF THE ACT AS CLAIMED IN THE RET URN OF INCOME FILED WITH THE REVENUE. WE ORDER ACCORDINGLY. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA N0. 6169/MUM/2013 FOR THE ASSESSMENT YEAR 2007-08 IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH APRIL, 2016. # $% &' 15-04-2016. ( ) SD/- SD/- (AMIT SHUKLA) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 15-04-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS ITA 6169/MUM/2013 25 !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI D BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI