GANGA DEV ELOPERS, MUMBAI V. DCIT CEN CIR 31, MUMBAI

ITA 6771/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92550 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Assessee
• Bench Allotted: G
• Next Hearing Date: 29-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-11-2012
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: J P BAIRARGRA
• Section: 15

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL G , BENCH MUMBAI . . , , BEFORE : SHRI R.C.SHARMA, AM & SHRI VIJAY PAL RAO , JM ./ ITA NO. 6179 / MUM/20 1 1 ( / ASSESSMENT YEAR : 20 0 8 - 09 ) ACIT.CC 31, CENTRAL RANGE - 7, MUMBAI VS. M/S GANGA DEVELOPERS, LAALASIS, PLOT NO.219, 11 TH ROAD, CHEMBUR, MUMBAI - 71 ./ ./ PAN/GIR NO. : A A AFG 8230 C ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO. 808/ MUM/20 11 ( / ASSESSMENT YEAR :2005 - 06 ) D CIT.CC 31, CENTRAL RANGE - 7, MUMBAI VS. M/S GANGA DEVELOPERS, LAALASIS, PLOT NO.219, 11 TH ROAD, CHEMBUR, MUMBAI - 71 ./ ./ PAN/GIR NO. : AAAFG 8230 C ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO S . 920&921/ MUM/20 11 ( / ASSESSMENT YEARS :2006 - 07 & 2007 - 08 ) DCIT.CC 31, CENTRAL RANGE - 7, MUMBAI VS. M/S GANGA DEVELOPE RS, LAALASIS, PLOT NO.219, 11 TH ROAD, CHEMBUR, MUMBAI - 71 ./ ./ PAN/GIR NO. : AAAFG 8230 C ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO S . 1632/ MUM/20 11 ( / ASSESSMENT YEARS :2005 - 06 ) M/ S GANGA DEVELOPERS, LAALASIS, PLOT NO.219, 11 TH ROAD, CHEMBUR, MUMBAI - 71 VS. DCIT.CC 31, CENTRAL RANGE - 7, MUMBAI ./ ./ PAN/GIR NO. : AAAFG 8230 C ( / APPELLANT ) .. ( / RESPONDENT ) ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 2 AND ./ ITA NO S . 6771/ MUM /20 12 ( / ASSESSMENT YEARS :200 9 - 10 ) M/S GANGA DEVELOPERS, LAALASIS, PLOT NO.219, 11 TH ROAD, CHEMBUR, MUMBAI - 400071 VS. A CIT.CC 31, CENTRAL RANGE - 7, MUMBAI ./ ./ PAN/GIR NO. : AAAFG 8230 C ( / APPELLANT ) .. ( / RESPONDENT ) AND ./ ITA NO S . 2195&4478/ MUM/20 1 3 ( / ASSESSMENT YEARS :200 5 - 06 & 2010 - 11 ) M/S GANGA DEVELOPERS, LAALASIS, PLOT NO.219, 11 TH ROAD, CHEMBUR, MUMBAI - 400071 VS. ACIT.CC 31, CENTRAL RANGE - 7, MUMBAI ./ ./ PAN/GIR NO. : AAAFG 8230 C ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI LOVE KUMAR /ASSESSEE BY : SHRI J.P.BAIRARGRA / DATE OF HEARING : 29 / 0 4 /201 5 / DATE OF PRONOUNCEMENT : 15/05 / 2015 / O R D E R PER R.C.SHARMA ( A .M.) : TH ESE ARE THE CROSS APPEALS FILED BY THE REVENUE AND ASSESSEE AGAINST THE ORDER OF CIT(A) , FOR THE ASSESSMENT YEAR S 20 0 5 - 06 TO 2010 - 2011 , IN THE MATTER OF ORDER PASSED U/S.143(3) /271(1)(C) OF THE I.T.ACT. 2. COMMON GRIEVANCE OF THE REVENUE IN ALL THE YEARS RELATES TO CIT(A)S ACTION FOR ALLOWING ASSESSEES CLAIM FOR DEDUCTION U/S.80IB(10). ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 3 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND REC ORD PERUSED. FACTS IN BRIEF A RE THAT T HE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT AND CONSTRUCTION. DURING THE YEAR UNDER CONSIDERATION THE PROJECT GANGA TOWER II IS CONSTRUCTED ON CTS NO.1565/7 - 9 & 641 SUB PLOT A OF ATUR PARK AT VILL AGE BORLA, CHEMBUR AND AREA OF THE PLOT IS 4194.33 SQ.MTRS. THE COMMENCEMENT CERTIFICATE FOR THE SAID PROJECT WAS RECEIVED ON 11 TH JUNE, 2001 AND THE SAID PROJECT WAS COMPLETED IN THE FINANCIAL YEAR 2004 RELEVANT TO ASSESSMENT YEAR 2005 - 06 AND OCCUPATION C ERTIFICATE WAS RECEIVED ON 5 TH NOVEMBER 2004. A CHART OF THE PREMISES CONSTRUCTED WAS ALSO FILED BEFORE THE AO DURING THE COURSE OF THE PROCEEDINGS IN WHICH IT WAS CLAIMED THAT THE BUILT UP AREA OF EACH FLAT IS NOT MORE THAN 1000 SQ.FT. IN THE COURSE OF AS SESSMENT THE AO ALSO RAISED QUERY WITH REGARD TO THE AREA OF THE 16TH FLOOR . IT WAS EXPLAINED TO THE AO THAT THE ASSESSEE FIRM HAD CONSTRUCTED THE PROJECT 'GANGA TOWER - II' AS PER PLAN APPROVED FROM THE MCGM AND HAVE CONSTRUCTED TWO FLATS ON THE 16TH FLOOR AND THAT THE BUILT - UP AREA OF THE FLAT NO.1602 WAS 921 SQ.FT. AND THAT OF FLAT NO. 1603 WAS 958 SQ.FT. THE ARCHITECT'S CERTIFICATE OF THE BUILT - UP AREA OF THESE FLATS AND COPY OF AGREEMENT OF SALE OF THE SAID PREMISES WAS ALSO FILED DURING THE COURSE OF TH E ASSESSMENT PROCEEDINGS. IN THIS REGARD, THE AO OBSERVED THAT THE GANGA TOWER - II IS A 16 STORY BUILDING COMPRI SING OF 61 FLATS. ON VERIFICATION OF DETAILS SUBMITTED, IT WAS NOTICED BY HI M THAT THE BUILDING HAS GOT ONLY TW O FLATS ON 16TT1 FLOOR. AS PER THE ARCHITECT'S PLAN FILED ALONG WITH THE RET URN ', THE TOTAL BUILT UP' AREA OF THE 16TH FLOOR INCLUDING THAT OF THE BALCONY AND PROJECTIONS BUT ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 4 EXCLUDING COMMON AREAS COMES TO 2255,82 SQ.FT. ACCORDINGLY, THE BUILT UP AREA OF FLAT NO.1603 EXCEEDS 1000 SQ.FT. A S PER DEFINITION OF 'BUILT UP AREA GIVEN IN SEC.80 I B(14)(A), BUILT UP AREA MEANS 'THE IN NER MEASUREMENT OF THE RESIDENTIAL UNITS AT THE FLOOR LEVEL, INCLUDING THE PROJECTIONS AND BALCONIES AS INCREASED BY THE THICKNESS OF THE WALLS BUT DOES NOT INCLUDE TH E COMMON AREAS SHARED WITH OTHER RESIDENTIAL UNITS'. THE BIFURCATION OF THE AREA GIVEN IN THE APPROVE D PLAN CLEARLY INDICATES THE BALCONY AREA AT 377.03 SQ.FT. SIMILARLY, THE NET BUILT UP AREA AS PER THE PLAN IS 1878.79 SQ. FT. THIS TOGETHER WITH BALCONY A REA EXCEEDS IT LIMIT PRESCRIBED U/S.80IB(10). DURING THE COURSE OF ASSESSMENT THE APPELLANT WAS ASKED TO SHOW WHY THE DEDUCTION U/S.80IB SHOULD NOT BE DISALLOWED SINCE THE CONDITIO N RELATED TO THE BUILT UP AREA OF THE RESIDENTIAL UNIT STIPULATED IN THE SA ID SECTION IS NOT FULFILLED THIS CASE. THE ASSESSEE FILED EXPLANATION VIDE LETTER DATED 27 - 12 - 2007 AS UNDER : - DURING THE COURSE OF ASSESSMENT PROCEEDINGS, YOUR HONOUR HAS RAISED THE QUERY REGARDING CLAIM OF DEDUCTION U/S.80IB OF I.T. ACT FOR PROJECT GANG A TOWER II. THE CONSTRUCTION OF THE PROJECT GANGA TOWER II IS CONSTRUCTED ON CTS NO.1565/7 - 9 & 641 SUB PLOT A OF ATUR PARK AT VILLAGE BORLA, CHEMBUR AND AREA OF THE PLOT IS 4194.33 SQ.MTRS. THE COMMENCEMENT CERTIFICATE WAS RECEIVED ON 11 TH JUNE 2001 AND THE CONSTRUCTION OF THE PROJECT STARTED. THE CONSTRUCTION OF THE PROJECT COMPLETED IN F. Y. 2004 AND OCCUPATION CERTIFICATED RECEIVED ON 5 TH NOVEMBER 2004. THE BUILT - UP AREA OF THE PREMISES IS NOT MORE THAN 1000 SQ.FT. FOR WHICH WE ARE EN CLO SING HEREWITH THE CHART OF PREMISES. TO FULFILL THE CONDITION FOR CLAIM U/S.80 I B SUB SEC. 10 OF I . T. ACT P ROVIDE THE FOLLOWING CONDITIONS : ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 5 SUCH UNDERTAKING HAS COMMENCED ON COMMENCES DEVELOPMENT AND CONSIDERATION OF THE HOUSING PROJECT ON OR AFTER 1 ST DAY OF OCTOB ER 1998. THE PROJECT ON THE SIZE OF A PLOT OF LAND WHICH HAS MINIMUM AREA OF ONE ACRE. THE RESIDENTIAL UNIT HAS A MAXIMUM L IMIT UP ARE OF ONE THOUSAND SQ.F T. THE ABOVE ALL CONDITION ARE FULFILLE D IN OUR PROJECT GANGA TOWER II CONSTRUCTED & COMPLETED AND CLAIM THE DEDUCTION U/S. 80I B OF I . T. ACT AND SUBMITTED THE CERTIFICATE OF AUDITOR UNDER RULE 10CCB ALONGWITH THE RETURN OF INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, YOUR HONOUR HAS ASKED TO EXPLAIN THE AREA OF THE 16TH FLOOR . IN THIS C ONNECTION IT IS SUBMITTE D THAT WE HAVE CONSTRUCTED THE PROJECT GANGA TOWER II AS PER PLAN APPROVED FROM THE NMMC AND HAVE CONSTRUCTED TWO FLATS ON 16 TH FLOOR. THE BUILT - UP AREA OF THE FLAT L602 IS 921 SQ. F T AND AREA OF FLAT 1603 IS 958 SQ. FT. WE ARE ENCLO SING HEREWITH THE ARCHITECT CERTIFICATE OF THE BUI LT UP AREA AND AGREEMENT OF SALE OF THE PREMISES. IN VIEW OF THE ABOVE, THE CLAIM OF DEDUCTION LT/S.801B IN OUR PROJE CT FULFILL ALL THE CONDITION PROVIDED IN THE ACT. 4. H OWEVER, THE EXPLANATION REGARDI NG THE BUILT - UP AREA OF 16TH FLOOR FL A TS WAS NOT FOUND TO BE ACCEPTABLE BY THE AO. THE AO OBSERVED THAT THE ASSESSEE HAD SOLD THE FLAT NO.1602 HAVING AREA OF 921 SQ.FT. ON 21/10/2003 FOR A CONSIDERATION OF RS.23,67,750/ - WH ICH MEANS THE AVERAGE RATE IS RS . 3201/ - PER SQ.FT. THERE IS NO JUSTIFICATION F OR SUCH WIDE VARIATION IN THE SELLING PRICE OVER A PERIOD OF THREE TO FOUR MONTHS, THAT ALSO THE PRICE FAL LING BY ALMOST RS.700 / - PER SQ. FT. SUCH A SCENARIO HAS NOT HAPPENED IN THE REAL ESTATE MARKET IN MUMBAI D URING THE PERIOD UNDER C ONSIDERATION. FROM THIS OBSERVA TION, THE AO CONC LUDED THAT THE SALE CONSIDERATION OF FLAT NO.1603 INCLUDES THE TERRACE AREA ON THE.16 FLOOR WHICH IS MEANT FOR THE EXCLUSIVE USE OF THE PURCHASE R OF FLAT N O .1603 . THE ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 6 AO ALSO OBSERVED THAT IN THE AGREEME NT IN CLAUSE J , IT IS MENTIONED THAT THE AREA MENTIONED IN THE AGREEMENT INCLUDES THE BUILT UP AREA INCLUDING AREA OF THE BALCONIES WHERE APPLICABLE AND, WITH ADJOINING TERRACE IF APPLICABLE. AS PER THE AO T HIS INDICATES ASSESSEE'S INTEN TION TO SELL THE ADJOINING TERRACE FOR THE EXCLUSIVE USE OF THE PURCHASER. AS PER THE AO T HE TERRACE IN A PROJECT IS INCLUDED IN THE DEFINITION OF THE BUILT OF AREA. THUS, THE BUILT - UP AREA IN RESPECT OF THIS FLAT EXCEEDS 1000 SQ.FT. T HE ARCHITECTS CERTIF ICATE ONLY CERTIFIES THE ADMEASURED AREA OF THE FLAT AND NOT THE BUILT OF AREA AS PER THE DEFINITION GIVEN IN SEC.80IB(14) OF THE I.T.ACT. IN THE LIGHT OF THESE OBSERVATIONS THE CLAIM OF DEDUCTION U/S.80IB IN RESPECT OF THE PROFIT FROM GANGA TOWER II WAS DISALLOWED. 5 . BY THE IMPUGNED ORDER THE CIT(A) DIRECTED THE AO TO ALLOW THE CLAIM OF DEDUCTION U/S.80IB IN RESPECT OF ALL THE FLATS EXCEPT FLAT NO.1602 & 1603 AT 16 TH FLOOR. THE CIT(A) ALSO OBSERVED THAT IN ALL THE YEARS SIZE OF FLAT SOLD WAS LESS THAN 1 000 SQ.FT., EXCEPT THE TWO FLATS SOLD IN A.Y.2005 - 06. THE PRECISE OBSERVATION OF THE CIT(A) WAS AS UNDER : - 4.3.2 THE FIRST ISSUE IS THAT WHILE WORKING OUT THE BUILT - UP AREA OF TWO FLATS ON THE 16TH FLOOR, NO / THE TERRACE AREA HAS TO BE TREATED. THIS ISS UE IS CLEARLY LINKED TO THE TERRACE RIGHT. IT IS STATED BY THE LEARNED ASSESSING OFFICER THAT IN CLAUSE J OF THE AGREEMENT, IT IS MENTIONED THAT BUILT UP AREA INCLUDES AREA OF BALCONIES AND ADJOINING TERRACE AREA WHEREVER APPLICABLE. THIS STIPULATION CLEAR LY GIVES THE BUYER OF THE FLAT AT 16TH FLOOR AN EXCLUSIVE RIGHT TO ENJOY THE TERRACE, AND, THEREFORE, BUILT - UP AREA HAS TO ACCOUNT FOR THE TERRACE RIGHTS. IF THE AGREEMENT HAD CLEARLY MENTIONED THAT TERRACE RIGHTS WOULD BE EQUALLY ENJOYED BY ALL THE RESIDE NTS OF ALL FL OORS, THE SITUATION WOULD HAVE BEEN DIFFERENT AND APPELLANT'S CLAIM WOULD HAVE BEEN ACCEPTABLE. THAT NOT BEING THE CASE, IT IS REASONABLE TO HOLD THAT SINCE THE APPELLANT HAS NOT CHALLENGED ASSESSING OFFICER'S FINDING WITH REFERENCE TO CLAUSE J OF THE AGREEMENT ASSIGNING TERRACE RIGHTS TO THE BUYERS OF 16 TH FLOOR FLAT THE TERRACE RIGHTS HAVE TO BE INCLUDED IN THE CALCULATION OF BUILT - UP AREA OF 16 TH FLOOR FLAT. ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 7 THE LEARNED ASSESSING OFFICER'S CONCLUSION, TO THIS EXTENT, IS UPHELD. 4.3.3. HO WEVER, THERE IS CONSIDERABLE FORCE IN THE APPELLANT'S ARGUMENT THAT NON- ALLOWANCE OF DEDUCTION U/S.80IB 'HAS TO BE RESTRICTED TO THE PROPORTION OF THE FLATS WHOSE AREA EXCEED 1000 SQ. FT. THE ID. AR'S RELIANCE ON THE ITAT, MUMBAI'S FINDING IN SAROJ SALES O RGANIZATION V/ S INCOME TAX OFFICER ITAT, MUMBAI 'E' BE NCH VIDE NO 115 TTJ (MUMBAI) 48 5: (2008) 3 DTR 494 'AND ACIT V/ S SHET H DEVELOPERS (P) LTD., ITAT ' G ' BENCH, MUMBAI VIDE' APPEAL NO. 33 SOT 277 (MUM) ARE CLEARLY APPLICABLE TO THE FACTS OF THE CASE. IT I S ALSO A FACT THAT ACTUAL 'BUILT - UP AREA OF NONE OF THE FLATS EXCEED 1000 SQ. FT. AND BUILT - UP AREA FOR 16TH FLOOR FLAT S ARE ONLY TECHNICALLY AND MARGINALLY HIGH ER THAN 1000 SQ. FT. 6. AGAINST THE ABOVE ORDER OF CIT(A), ASSESSEE IS IN APPEAL BEFORE US IN RESPECT OF DISALLOWANCE OF CLAIM OF DEDUCTION U/S.80IB(10) IN RESPECT OF FLAT NO.1602&1603, WHEREAS REVENUE IS IN APPEAL BEFORE US AGAINST DELETING DISALLOWANCE OF CLAIM U/S.80IB(10) IN RESPECT OF REMAINING FLATS. 7 . WE HAVE CONSIDERED RIVAL CONTENTIONS A ND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND FOUND THAT ASSESSEE HAS CLAIMED DEDUCTION U/S.80IB FOR THE ASSESSMENT YEAR 2005 - 06 TO 2008 - 09 IN RESPECT OF PROJECT GANGA TOWER - II. THE AO HAS DECLINED CLAIM OF DEDUCTION U/S.80IB IN THE A.Y .2005 - 06 ON THE PLEA THAT TOTAL AREA OF 16 TH FLOOR IS 2255.82 SQ.FT. COMPRISING OF FOLLOWING BIFURCATION : - FLAT NO.1602 921 SQ.FT. FLAT NO.1603 958 SQ.FT. TERRACE 377 SQ.FT. ----------- TOTAL AREA 2256 SQ.FT. THE AO HELD THAT 377.03 SQ.FT. IS THE BALCONY AREA AND NOT TERRACE AREA AND, THEREFORE, AS PER THE DEFINITION OF THE BUILT - UP AREA GIVEN IN SEC.80IB(14)(A) W.E.F.01.04.2005, THE BUILT - UP AREA INCLUDES PROJECTIONS ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 8 AND BALCONIES AND, THEREFORE, THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S.8 0 - IB(10) ON THIS PROJECT. THEREAFTER THE AO HAS GIVEN A FINDING THAT THE SALE PRICE OF THE FLAT NO.1602 SOLD ON 21.10.2003 IS LESS THAN THE SALE PRICE OF THE FLAT NO.1603 WHICH HAS BEEN SOLD ON 26 - 6 - 2003 AND, THEREFORE, IT IS PRESUMED THAT THE TERRACE ON T HE 16 TH FLOOR IS SOLD TO FLAT NO.1603. HE ALSO RELIED ON THE CLAUSE NO.(J) OF THE AGREEMENT, WHICH IS A PRINTED AGREEMENT, WHICH MENTIONS THAT BUILT - UP AREA INCLUDES AREA OF BALCONY WHEREVER APPLICABLE AND AREA OF TERRACE, IF APPLICABLE. THE AO ALSO OBSERV ED THAT TERRACE, BEING A PROJECTION, IS INCLUDED IN THE DEFINITION OF BUILT - UP AREA W.E.F.1 - 4 - 2005, ACCORDINGLY, HE DISALLOWED THE ENTIRE DEDUCTION CL AIMED BY THE ASSESSEE U/S.80IB IN THE A.Y.2005 - 06. IN THE A.Y.2006 - 07 TO 2008 - 09, THE AO DECLINED DEDUCTIO N ON THE PLEA THAT FLATS OF GANGA TOWER WERE SOLD IN SUBSEQUENT YEARS AND SINCE CLAIM WAS DECLINED IN A.Y.2005 - 06, THE AO DISALLOWED THE CLAIM IN THE SUBSEQUENT YEARS ALSO. 8 . BY THE IMPUGNED ORDER THE CIT(A) AFTER FOLLOWING THE DECISION OF SAROJ SALES ORG ANISATION, SETH BUILDERS PVT. LTD. AND HIRANNANDANI AKRUTI JV, HELD THAT ASSESSEE IS ELIGIBLE FOR CLAIM OF DEDUCTION U/S.80IB ON ALL FL ATS EXCEPT FLAT NO.1602 & 1603 , IN ALL THE YEARS UNDER CONSIDERATION. 9 . WE FOUND THAT ALL THE CONDITIONS FOR CLAIMING DE DUCTION U/S.80IB HAS BEEN FULFILLED AND THE CIT(A) HAS DENIED THE CLAIM IN RESPECT OF FLAT NO.1602 & 1603 ON THE PLEA THAT THEIR AREA WAS MORE THAN 1000 SQ.FT. WE HAD VERIFIED THE COPIES OF THE RELEVANT PAGES OF THE AGREEMENT FOR SALE IN RESPECT OF FLAT NO .1602 IS AT PAGE NO.3 TO 21 OF PAPER BOOK NO.1 WHEREIN ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 9 THE AREA IS MENTIONED AT PAGE NO.9 AND THE RELEVANT CLAUSE NO.(J) RELIED ON BY AO AND LD.CIT(A) IS AS UNDER : - FLAT 1602 ADMEASURING 921 SQ.FT. BUILT UP (INCLUDING AREA OF BALCONIES WHERE APPLICABLE) (WITH THE ADJOINING TERRACE IF APPLICABLE) ON THE 16 TH FLOOR IN THE SAID BUILDING BEING CONSTRUCTED ON THE SAID PROPERTY AND ALSO CAR PARKING SPACE ADMEASURING (NIL. SQ.FT. THEREABOUT). 10. ON PAGE NO.20, THE PLAN OF THE FLAT IS ALSO ATTACHED WITH THE AG REEMENT WHICH SHOWS THAT TERRACE IS SEPARATE AND NOT ATTACHED WITH THE FLAT AND THAT HAS NOT MARKED AS THE AREA SOLD. FOR FLAT NO.1603, SIMILAR CLAUSE (J) IS ON PAGE NO.28 AND THE SIMILAR PLAN ATTACHED WITH THE AGREEMENT IS ALSO AT PAGE NO.39 WHICH ALSO IN DICATES THAT AREA OF THE TERRACE IS NOT SOLD TO THE FLAT OWNER AND FURTHER FROM THE PLAN IT IS CLEAR THAT TERRACE IS NOT OPENABLE FROM THE FLAT WHILE THE WAY TO THE TERRACE IS FROM THE PASSAGE OF THE 16 TH FLOOR. 11 . WE HAD ALSO VERIFIED THE SANCTIONED PLAN OF THE BUILDING PLACED AT PAGE 2 OF THE PAPER BOOK FROM WHICH IT IS ALSO CLEAR THAT FLAT NO.1602 AND 1603 ARE SEPARATE AND THE TERRACE IS NOT OPENABLE FROM INSIDE OF ANY FLAT AND ACCESS TO THE TERRACE IS FROM THE STAIRCASE AND PASSAGE OF THE 16 TH FLOOR. THE TERRACE IS NOT PART OF THE BUILT - UP AREA, THOUGH BALCONY IS PART OF THE BUILT - UP AREA; TERRACE IS A COMMON AREA SHARED WITH THE OTHER RESIDENTIAL AREAS, AND ACCORDINGLY, THE FINDING OF THE AO AND CIT(A) MERELY RELYING ON THE HIGHER SALE PRICE OF FLAT NO.1603, THAT THE TERRACE HAS BEEN EXCLUSIVELY GIVEN TO FLAT NO.1603 IS NOT CORRECT AS, FROM THE AGREEMENT AND THE PLAN AND THE CERTIFICATE OF THE ARCHITECT, IT IS CLEAR THAT TERRACE IS NEITHER ATTACHED WITH THE FLAT NOR THIS HAS BEEN GIVEN TO FLAT ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 10 NO.1603 FOR EXCLUSIVE USE AND IT IS FOR THE USE OF ALL THE MEMBERS. FURTHERMORE, THE AMENDED PROVISION WITH REGARD TO CALCULATING THE AREA OF FLAT IS NOT APPLICABLE IN RESPECT OF THE PROJECTS APPROVED AND STARTED PRIOR TO 01.04.2005 AND IT IS VERY CLEAR THAT THE COMMENCEMENT CERTIFICATE FOR THE PROJECT WAS ISSUED ON 11 - 6 - 2001 WHEN THE CONSTRUCTION WAS START E D AND IT WAS COMPLETED ON 5.11.2004. 12 . IN VIEW OF THE ABOVE DISCUSSION AND RESPECTFULLY FOLLOWING THE PROPOSITION OF LAW LAID DOWN IN THE CASE OF SAROJ SALE S CORP., 115 TTJ 485, SETH DEVELOPERS, 33 SOT 277, HIRANANDANI AKRUTI JV, 39 SOT 498, MANAN CORP. 255 CTR (GUJ) 415, ANRIYA PROJECT MANAGEMENT SERVICES PVT. LTD. 209 TAXMAN 1 (KAR) AND CHD DEVE LOPERS LTD., 43 TAXMANN.COM 249 AND THE DECISION OF THE ITAT IN THE CASE OF HAWARE CONSTRUCTION PVT. LTD., ITA NO.5601/M/2009, ORDER DATED 5 - 8 - 2011, WE DIRECT THE AO TO ALLOW ASSESSEES CLAIM OF DEDUCTION U/S.80IB IN RESPECT OF ALL THE 61 FLATS IN GANGA TOWER II. 13 . IN THE RESULT, GROUND TAKEN BY THE REVENUE IN ASSE SSMENT YEARS 2005 - 06 TO 2008 - 2009 ARE DISMISSED, WHEREAS THE GROUND TAKEN BY THE ASSESSEE IN ASSESSMENT YEAR 2005 - 06 IN REGARD TO DECLINE OF CLAIM OF DEDUCTION U/S.80IB(10) IN RESPECT OF FLAT NO.1602 & 1603 ON 16 TH FLOOR OF GANGA TOWER II IS ALLOWED. 14 . I N THE ASSESSMENT YEARS 2006 - 07 TO 2008 - 09, THE REVENUE HAS TAKEN A GROUND WITH REGARD TO DISALLOWANCE U/S.40A(2) . 15 . WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT THE AO HAS DISCUSSED THE ISSUE IN PARA 6 OF HIS ORDER FOR A.Y.2006 - 07. THE ASSESSEE ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 11 I S ONE OF THE GROUP CONCERNS OF KUKREJA BUILDERS. ALL THE CONCERNS OF KUKREJ A BUILDERS ARE CARRYING ON THEIR BUSINESS FROM THE PREMISES AT LAL ASHISH, CHEMBUR . THE SAME IS MAINTAINED BY M/S KUKREJA SERVICES PVT. LTD. WHICH INCUR ALL THE EXPENSES FOR MAINTEN ANCE OF THE BUILDING LIKE RENT, ELECTRICITY, SECURITY, GARDENING, COMPUTER, ACCOUNTANT AND OTHER MISC. EXPENSES. IN LIEU OF THAT, ALL THE GROUP COMPANIES MAKE THE PAYMENT UNDER THE HEAD BUSINESS CENTRE FACILITY AND ADMINISTRATION CHARGES. THIS IS GOING ON FOR LAST NUMBER OF YEARS. WE FOUND THAT NO DISALLOWANCE U/S.40A(2) MADE IN THE ASSESSMENT YEAR 2005 - 06, IN RESPECT OF DISALLOWANCE MADE IN THE ASSESSMENT YEAR 2006 - 07, 2008 - 09, WERE DELETED BY THE CIT(A) AFTER FOLLOWING THE DECISION OF TRIBUNAL IN THE C ASE OF GROUP CONCERN . THE FINDING RECORDED BY THE CIT(A) IN THE ASSESSMENT YEAR 2006 - 07 WHILE DELETING THE DISALLOWANCE U/S.40A(2) READ S AS UNDER : - 3.7 I HAVE CAREFULLY CONSIDERED THE ISSUE. IT IS A FACT THAT THE ISSUE OF SISTER CONCERN VIZ. M/S. KUKREJ A SERVICES P. LTD. PROVIDING BUSINESS CENTRE FACILITY AND ADMINISTRATIVE FACILITY CAME UP FOR CONSIDERATION BEFORE THE HON'BLE ITAT IN THE CASE OF THE APPELLANT'S OTHER SISTER CONCERN VIZ. M/S. TOIARARN & CO. FOR A.Y.2000 - 01 IN WHICH IT WAS HELD THAT IT IS VERY APPARENT FROM THE FACTS NARRATED THAT THE ENTIRE OFFICE IS HIRED AND MAINTAINED BY M/S. KUKREJA SERVICES PVT LTD. AND THE GROUP CONCERN REIMBURSE THE EXPENSES TO THIS COMPANY IN THE PROPORTION OF THE AREA AND THE FACILITIES AVAILED BY THEM. IN ANY CA SE, THE MATTER HAS ALREADY TRAVELLED UPTO ITAT WHO HAVE HELD THAT SUCH REIMBURSED EXPENSES IS RIGHTLY CLAIMED BY THE GROUP CONCERNS LIKE M/S. TOLARAM & CO. AND M/S. VAZIRANI LAND DEVELOPERS PVT. LTD. DIFFERENT YARDSTICK CANNOT BE APPROVED IN THE APPELLANT' S CASE UNLESS IT IS PROVED THAT DISPROPORTIONATE CLAIM OUT OF EXPENSES INCURRED BY M/S. KUKREJA SERVICES PVT. LTD. IS BEING CLAIMED BY THE APPELLANT. THAT NOT BEING THE CASE, THE ISSUE IN QUESTION IS SQUARELY COVERED BY HON'BLE ITAT'S DECISION IN THE CASE OF APPELLANT'S SISTER, CONCERN CITED SUPRA, ACCORDINGLY, THIS GROUND OF APPEA L IS DECIDED IN FAVOUR OF THE APPELLANT. ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 12 1 6 . WE HAVE CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE FINDINGS RECORDED BY THE CIT(A) AND FOUND THAT THE ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN FOLLOWING GROUP CASES IN FAVOUR OF THE ASSESSEE: - I) M/S TOLARAM & CO. ITA NO .2960/MUM/2004 , ORDER DTD .27 - 10 - 2004 (AY 2000 - 01) ; II) M/S VAZIRANI LAND DEVELOPERS PVT. LTD., ITA NO .5113&5114/MUM/2002, DATED 7 - 11 - 2006 (AY:1998 - 99 & 1999 - 200 0) ; III) IN THE RECENT DECISION OF TRIBUNAL DATED 8 - 5 - 2013 IN THE CASE OF GROUP CONCERN MOTIRAM TOLARAM ITA NOS.1219&2040/MUM/2010 (AY2006 - 07 & 2007 - 2008) DATED 8 - 5 - 2013; AND IV) THE ORDER OF THE TRIBUNAL DATED 24 - 12 - 2013 IN THE CASE OF GROUP COMPANY MOTI RAM TOLARAM ITA NO.3683/MUM82012 FOR A.Y.2008 - 09. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN GROUP CASES OF THE ASSESSEE VIS - - VIS THE FINDING RECORDED BY THE CIT(A), WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) WITH REGARD T O DELETION OF DISALLOWANCE MADE U/S.40A(2). 1 7 . IN THE ASSESSMENT YEAR 2008 - 09, THE DEPARTMENT IS AGGRIEVED FOR DISTRIBUTION OF PROPORTIONATE INDIRECT EXPENSES ON THE BASIS OF WORK - IN - PROGRESS IN PLACE OF PROFIT OF EACH YEAR. 1 8 . WE HAVE CONSIDERED RIVAL C ONTENTIONS AND FOUND THAT WHILE COMPUTING THE PROFIT OF ELIGIBLE PROJECT, THE AO HAS ALLOCATED INDIRECT COST ON THE BASIS OF PROPORTIONATE SALE OF EACH YEAR. BY THE IMPUGNED ORDER THE CIT(A) RELOCATED SUCH INDIRECT COST ON THE BASIS OF WORK IN PROGRESS IN EACH YEAR. T HE CIT(A) HAS FOLLOWED THE ORDER OF THE TRIBUNAL FOR A.Y.2001 - 02 AND GIVEN THE FINDING IN LAST PARA OF THE ORDER WHICH READS AS UNDER : - ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 13 5.7 I HAVE CAREFULLY CONSIDERED THE ISSUE. IT IS A FACT THAT THE APPELLANT IS ENGAGED IN VARIOUS ACTIVITIE S SUCH AS CONSTRUCTION ACTIVITIES AND OPERATION OF HOTEL. THERE CAN BE A CASE WHERE INDIRECT EXPENSES NEED TO BE APPORTIONED IN A RATIO OTHER THAN THE RESPECTIVE TURNOVERS. HOWEVER, THE MOST NATURAL PRESUMPTION OF APPLYING THE INDIRECT EXPENSES WOULD BE IN PROPORTIONATE IN THE RESPECTIVE TURNOVERS/WIPS. APPLYING INDIRECT EXPENSES IN PROPORTION TO RESPECTIVE PROFITS WOULD AMOUNT TO ATTRIBUTING NIL AMOUNT TO ACTIVITIES WHICH YIELD LOSS OR NO PROFIT. THEREFORE, THE RATIO OF THE JUDGMENT BY THE LTAT IN THE APPE LLANT'S OWN CASE FOR A.Y. 2001 - 02 HAS TO BE APPLIED IN ALL CASES EXCEPT THE ONES IN WHICH SUCH APPORTIONMENT YIELDS ABSURD OR UNREALISTIC RESULTS. THE LD.AO HAS MADE NO CASE IN THE ASSESSMENT ORDER TO HOLD THAT APPORTIONMENT OF INDIRECT EXPENSES IN THE RAT IO OF RESPECTIVE PROFITS WOULD BE LOGICALLY MORE SOUND. THEREFORE, RESPECTFULLY FOLLOWING THE SAID RATIO OF THE ITAT, THE ID.AO IS DIRECTED TO APPORTION THE INDIRECT EXPENSES IN THE R ATIO OF RESPECTIVE WIPS OF DIFFERENT ACTIVITIES OF THE APPELLANT, AS CLAI MED BY THE APPELLANT. THIS GROUND OF APPEAL IS, ACCORDINGLY, ALLOWED. 19. AS THE ISSUE IS COVERED BY THE TRIBUNAL IN ASSESSES OWN CASE IN THE ASSESSMENT YEAR 2001 - 02, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR ALLOCATING INDIRECT COST ON TH E BASIS OF WORK - IN - PROGRESS IN EACH YEAR IN PLACE OF PROPORTIONATE SALE OF EACH YEAR AS DONE BY THE AO. 20 . IN THE ASSESSMENT YEAR 2009 - 10 THE ASSESSEE IS AGGRIEVED FOR DISALLOWANCE OF RS. 7,13,083/ - U/S.40A(2)(B). THE ISSUE HAS ALREADY BEEN DECIDED IN THE ASSESSMENT YEAR 2006 - 07, 2007 - 08 AND 2008 - 09, HEREINABOVE, THEREFORE, ON THE SAME REASONING, WE DO NOT FIND ANY MERIT FOR THE DISALLOWANCE OF RS. 7,13,083/ - MADE U/S.40A(2)(B) OF THE ACT. 21 . THE ASSESSEE IS ALSO AGGRIEVED FOR DISALLOWANCE OF INTEREST OF RS .2.39 CRORES IN THE A.Y.2009 - 2010 . THE DISALLOWANCE HAS BEEN MADE BY THE AO ON THE PLEA THAT THE ASSESSEE HAS GIVEN INTEREST FREE LOAN TO SISTER CONCERNS FROM THE LOAN TAKEN FROM BANK ON WHICH INTEREST IS PAID AND THUS HE DISALLOWED THE INTEREST PAID TO BA NK. THE AO OBSERVED THAT ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 14 ASSESSEE HAS DEBITED FINANCIAL CHARGES OF RS.2.39 CRORES DURING THE YEAR AS AGAINST FINANCIAL CHARGES OF RS.1.12 LAKHS IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR. THE AO ALSO OBSERVED THAT IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR 2008 - 09 UNSECURED LOAN WAS RS.7.98 CRORES WHICH HAS INCREASED TO RS.20.34 CRORES AS ON 31.3.2009 I.E. DURING THE YEAR UNDER CONSIDERATION. AO ALSO OBSERVED THAT ALL THESE LOANS AND ADVANCES WERE GIVEN INTEREST FREE . B Y OBSERVING THAT ASSESSEE HAS SANC TIONED INTEREST BEARING LOAN OF RS.20 CRORES FROM THE AXIS BANK FOR ACQUISITION OF FIXED ASSETS, THE ASSETS IN THE GROUP CONCERN AND REPAYMENT OF UNSECURED LOANS ETC. WHEREAS ASSESSEE HAS USED THE FUNDS FOR ADVANCING INTEREST FREE FUNDS TO THE SISTER CONC ERN , THEREFORE, DEDUCTION ON ACCOUNT OF INTEREST ON LOANS TAKEN FROM BANK CANNOT BE ALLOWED . THE AO ALSO OBSERVED THAT NO NEW ASSETS HAVE BEEN PURCHASED DURING THE YEAR NOR ANY UNSECURED LOANS WERE REPAID. THE AO ALSO DISREGARDED ASSESSEES CONTENTION REG ARDING AVAILABILITY OF INTEREST FREE FUNDS. THE LD.CIT(A) HAS DISCUSSED THE ISSUE IN PARA 4 OF HIS ORDER. THE CIT(A) HAS INCORPORATED THE CASH FLOW OF THE ASSESSEE FIRM IN PARA 4.3 FROM WHICH IT IS CLEAR THAT THE ASSESSEE FIRM IS HAVING INTEREST FREE FUND S OF RS.42.40 CRORES IN WHICH THE MAJOR BALANCE IS LYING IN PARTNERS CAPITAL ON WHICH NO INTEREST IS PAID OF RS.30.09 CRORES AND UNSECURED LOAN FROM SISTER CONCERNS OF RS. 8.01 CRORES. AS PER CASH - FLOW STATEMENT AS AGAINST THE INTEREST FREE FUNDS AVAILABLE OF RS.42.40 CRORES, THE ASSESSEE HAS GIVEN INTEREST FREE LOANS TO SISTER CONCERNS OF RS.20.34 CRORES ONLY. AS PER ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 15 LD. AR T HESE FACTS ARE VERIFIABLE FROM THE BALANCE SHEET OF THE FIRM AS ON 31 ST MARCH, 2009 FOR A.Y.2009 - 2010. 22 . WE HAVE CONSIDERED RIVAL C ONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RELIANCE UTILITIES & POWER LTD, 313 ITR 340 AND HONBLE ALLAHABAD HIGH COURT IN THE CASE OF PREM HEAVY ENGINEERING WORKS P. LTD., 285 ITR 55 4 HAVE HELD THAT WHERE INTEREST FREE LOANS TO SISTER CONCERNS WERE GIVEN FROM THE INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE, NO DISALLOWANCE ON ACCOUNT OF INTEREST SHOULD BE MADE. IN THE FOLLOWING JUDGMENTS IT HAS BEEN HELD THAT IF THE INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE ARE FAR MORE THAN THE INTEREST FREE ADVANCES MADE TO SUBSIDIARY COMPANIES THEN PRESUMPTION SHOULD BE THAT INTEREST FREE ADVANCES ARE GIVEN OUT OF THE INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE. I) RELIANCE UTILITIES & POWER LTD., 313 ITR 340; II) PREM HEAVY ENGINEERING WORKS PVT. LTD., 285 ITR 554; III) S.P.JAISWAL ESTATES (P) LTD., 140 ITD 19 (KOL.TRIB.THIRD MEMBER) AND IV) BUNGE AGRIBUSINESS (INDIA) (P) LTD., 132 ITD 549. 23. THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1994 - 95 DISMISSED REVENUES APPEAL BY RELYING ON THE FINDING OF CIT(A) TO THE EFFECT THAT ASSESSEE HAD NOT DIVERTED ITS INTEREST BEARING FUNDS FOR ADVANCING INTEREST FREE LOANS TO SISTER CONCERN, BY RELYING ON THE DECISION OF THE HONB LE BOMBAY HIGH COURT IN THE CASE OF BOMBAY SAMACHAR LTD. 74 ITR 723 AND HONBLE KOLKATA HIGH COURT IN THE CASE OF INDIAN EXPLOSIVE LTD. 192 ITR 144. ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 16 24. IN VIEW OF THE ABOVE, WE RESTORE THE MATTER WITH REGARD TO DISALLOWANCE OF INTEREST TO THE FILE OF AO WITH A DIRECTION TO DECID E AFRESH KEEPING IN VIEW THE PROPOSITION OF LAW LAID DOWN BY JURISDICTIONAL HIGH COURT IN THE CASE OF RELIANCE UTILITIES & POWER LTD., WHEREIN IT WAS HELD THAT IN CASE OF AVAILABILITY OF INTEREST FREE FUNDS PRESUMPTION IS THAT THE SAME HAS BEEN UTILIZED FOR ADVANCING INTEREST FREE LOANS , THEREFORE, NO DISALLOWANCE IS TO BE MADE. THE AO IS DIRECTED TO DECIDE THE ISSUE AFTER VERIFYING INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE IN TERMS OF DECISION OF HONBLE JURISDICTIONAL HIGH C OURT AS WELL AS OTHER HIGH COURTS CITED HEREINABOVE. WE DIRECT ACCORDINGLY. 25 . THE AO HAS ALSO DISALLOWED SALES PROMOTION EXPENSES OF RS. 3,97,515/ - IN THE ASSESSMENT YEAR 2009 - 10. THE AO HAS DISCUSSED THE ISSUE IN PARA 8 OF HIS ORDER AND HELD THAT DUR ING THE YEAR THE ASSESSEE HAS INCURRED SALES PROMOTION EXPENSES OF RS.15,90,061/ - AS AGAINST RS.12,96,432/ - INCURRED IN LAST YEAR I.E. AY.2008 - 09 FOR ITS BUSINESS UNIT K - STAR HOTEL. THE AO OBSERVED THAT THESE EXPENS E S ARE INCURRED IN CASH AND IN SELF MADE VOUCHERS. THE AO ALSO OBSERVED THAT THE SALES OF K - STAR HOTELS HAD NOT INCREASED DUR ING THE YEAR ON THE CONTRARY IT HAD DECREASED. THEREFORE, HE DISALLOWED 50% OF THE SALES PROM OTION EXPENSES AMOUNTING TO RS. 7,95,061/ - . BY THE IMPUGNED ORDER THE CIT(A) RES TRICTED THE DISALLOWANCE TO 25% OF THE EXPENSES SO CLAIMED . 26 . WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT THE HOTEL IS SITUATED AT NEW BOMBAY AND THE ASSESSEE HAS PAID CASH TO AUTO RICKSHAW AND TAXI DRIVERS TO GET CUSTOMERS TO THE HOTEL. THESE E XPENSES ITA NOS. 6179 , 808 , 1632 , 920 , 92 1 / 11 & 6771 / 12 &2195 , 4478 / 13 17 ARE GENUINE. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE RESTRICT THE DISALLOWANCE TO THE EXTENT OF 10% OF THE EXPENSES. 27 . IN THE ASSESSMENT YEAR 2005 - 06, THE AO HAS ALSO LEVIED PENALTY U/S.271(1)(C) FOR DECLINE OF C LAIM OF DEDUCTION U/S.80IB(10). AS WE HAVE ALREADY ALLOWED ASSESSEES CLAIM OF DEDUCTION U/S.80IB(10) ON ITS ENTIRE PROJECT, THE PENALTY IMPOSED FOR THE DISALLOWANCE OF DEDUCTION U/S.80IB(10) WILL NOT SURVIVE ANY MORE. 28 . IN THE RESULT, APPEAL S OF THE RE VENUE ARE DISMISSED, WHEREAS APPEALS OF THE ASSESSEE ARE ALLOWED IN PART , EXCEPT ITA NO.2915/MUM/ 2013 (AY 2005 - 06) , WHICH IS ALLOWED , IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15/05/ 201 5 . SD/ - SD/ - ( ) ( VIJAY PAL RAO ) ( . . ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 15/05 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//