MRS. SHARDA DINESH PHOTOGRAPHER, MUMBAI V. THE ITO WD 25(3)(4), MUMBAI

ITA 7024/MUM/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1295 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 26-11-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KISHAN VYAS
• Assessee Lawyers: SANJIV M SHAH
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Opportunity of being heard; Additional evidence; Fair market value; Valuation report; Set aside
• Section: 50C; 37

Judgement Text

1 ITA NO.7024/MUM/2007 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI A L GEHLOT, AM & SHRI R S PADVEKAR, J M ITA NO. 7024/MUM/2007 (ASST YEAR 2004-05) SHARAD DINESH PHOTOGRAPHER 703 RAJ VAIBHAV II MAHAVIR NAGAR KANDIVALI (W) MUMBAI 67 VS THE INCOME TAX OFFICER WARD 25(3)(4), MUMBAI (APPELLANT) (RESPONDENT) PAN AAFPP9260J ASSESSEE BY: SHRI SANJIV M SHAH REVENUE BY: SHRI KISHAN VYAS O R D E R PER R S PADVEKAR: IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IM PUGNED ORDER OF THE LD CIT(A)-XXV, MUMBAI FOR THE ASSESSMENT YEAR 2004- 05 DATED 17.9.2007. 2 THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GR OUNDS IN ITS APPEAL. I) UNDER THE FACTS AND THE CIRCUMSTANCES OF THE CASE OF YOUR APPELLANT THE LD AO HAS ERRED IN INVOKING THE PROVISIONS OF SEC. 50C OF THE I T ACT 1961 AND TAKING THE SALE PRICE OF THE RESIDENTIAL P ROPERTY AT RS. 1,03,32,000/- INSTEAD OF AGREED PRICE OF RS. 65 LAC S WITHOUT REFERRING THE VALUE OF THE VALUATION CELL OF THE I T DEPARTMENT WHICH AGAIN CONFIRMED BY THE DL CIT(A) II) THE LD AO HAS ALSO ERRED IN NOT ACCEPTING THE S T L OSS ON SALE OF EQUITY SHARES AT RS.13,64,303/ ALLEGING THAT THESE TRANSAC TIONS WERE SHAM DEALING TO BUY SHORT TERM LOSS WHICH AGAIN CONFIRME D BY THE LD CIT(A). III) THE LD AO ALSO ERRED N NOT ACCEPTING THE S T LOSS O N SALE OF EQUITY SHARES TO BE CARRIED FORWARD ALLEGING THAT THESE TR ANSACTIONS WERE OF SHAM DEALINGS IN NATURE TO BUY SHORT TERM LOSS WHIC H RECONFIRMED BY THE LD CIT(A). THE ITO AND THE CIT(A) DID NOT CONFI RM THE FACT THAT THE 2 ITA NO.7024/MUM/2007 PURCHASE OF SHARES WEE OF OFF THE MARKET WHICH DO N OT REQUIRE TO ROUT THROUGH STOCK EXCHANGE. 3 GROUND NO.1 IS IN RESPECT OF INVOKING PROVISIONS OF SEC. 50C OF THE ACT BY ADOPTING THE SALE CONSIDERATION AT RS. 1,03,32,0 00/- AS AGAINST DECLARED BY THE ASSESSEE AT RS. 65 LACS. 4 THE FACTS, WHICH REVEAL FROM THE RECORDS ARE THAT THE ASSESSEE HAS SHOWN CAPITAL GAIN ON THE SALE OF HOUSE PROPERTY, W HICH WAS CLAIMED TO HAVE BEEN GIVEN AS GIFT FROM HER HUSBAND IN THE YEAR 199 5-96. THE FAIR MARKET VALUE OF THE PROPERTY AS ON 1.4.1981 AS PER PROVISI ONS OF SEC. 55(2) (B) OF THE ACT WAS ADOPTED WHICH WAS TAKEN AT 10.25 LACS AS PE R THE VALUATION REPORT OF THE REGISTERED VALUER. THE ASSESSEE HAS SHOWN TH E SALE CONSIDERATION AT RS.65 LACS BUT STAMP DUTY PAID FOR REGISTRATION OF THE CONVEYANCE, THE VALUE WAS DETERMINED AT RS. 1,03,32,000/- BY THE REGISTRA TION AUTHORITY. THESE FACTS ARE NOT IN DISPUTE. THE AO INVOKED THE PROVI SIONS OF SEC. 50COF THE ACT AND ADOPTED THE SALE CONSIDERATION AT RS. 1,03,32. 000/- IN PLACE OF RS. 65 LACS DECLARED BY THE ASSESSEE AND DETERMINED THE L ONG TERM CAPITAL GAIN AT RS. 55,86,250/-; AFTER GIVING THE BENEFIT OF THE INDEXATION COST OF THE ACQUISITION. THE ASSESSEE CHALLENGED THE ACTION OF THE AO INVOKING THE PROVISIONS OF SEC. 50C BEFORE THE LD. CIT(A) BUT WITHOUT SUCCESS. NOW, THE ASSESSEE IS IN APPEAL HERE BEFORE US. 5 THE LD COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT SECTION 50C IS IDENTICAL WITH THE EARLIER OMITTED SECTION 52(2) OF THE ACT, THOUGH THE PHRASEOLOGY USED BY THE LEGISLATURE IS DIFFERENT. THE LD COUNSEL RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF K P VARGHESE VS ITO (131 ITR 597)(SC) AND SUBMITTED THAT THERE IS NO DIFFERE NCE BETWEEN SEC. 52(2) AND SEC. 50C SO FAR AS THE OBJECTS FOR INTRODUCTION OF SEC. 50C IS CONCERNED. IT IS FURTHER ARGUED THAT NOWHERE THE AO HAS RECORD ED THE FINDING THAT THE 3 ITA NO.7024/MUM/2007 ASSESSEE RECEIVED MORE CONSIDERATION THAN WHAT HAS BEEN SHOWN IN THE AGREEMENT. THE LD COUNSEL ALSO MADE REFERENCE TO T HE WRITTEN SUBMISSIONS MADE BEFORE THE LD CIT(A). HE ALSO RELIED ON THE DE CISION OF THE HONBLE HIGH COURT OF PUNJAB & HARYANA IN THE CASE OF CIT VS. CH ANDNI BHUCHAR (34 DTR 137 (P&H). 5.1 PER CONTRA, THE LD DR ARGUES THAT THE SEC 50C A ND THE ERSTWHILE SEC 52(2) ARE TWO DIFFERENT LEGISLATIVE PROVISIONS; HAV ING THE DIFFERENT OBJECTS. IT IS ARGUED THAT SEC 50C IS IN THE NATURE OF THE DEEM ING PROVISION AND AS PER LANGUAGE USED IN SAID SECTION , IN UNAMBIGUOUS TER MS IT IS PROVIDED THAT IF THE CONSIDERATION DECLARED BY THE ASSESSEE AS RECEI VED OR ACCRUING ON THE TRANSFER OF ANY LAND OR BUILDING IS LESS THAN THE V ALUE ADOPTED OR ASSESSED BY THE STAMP DUTY AUTHORITY FOR THE PURPOSE OF STAM P VALUATION; THEN THE VALUE ADOPTED BY THE STAMP AUTHORITY SHALL BE DEEME D TO BE FULL VALUE OF THE CONSIDERATION FOR THE PURPOSE OF SEC. 48 OF THE ACT . HE FURTHER ARGUES THAT SO FAR AS THE OMITTED SEC. 52(2) IS CONCERNED, THE LANGUAGE OF THE SAID SECTION WAS TOTALLY DIFFERENT AND THE BURDEN WAS ON THE AO TO PROVE THAT THE ASSESSEE HAS UNDERSTATED THE CONSIDERATION. HE, THE REFORE, PLEADED THAT THE PRINCIPLES APPLICABLE TO THE ERSTWHILE SEC. 52(2) C ANNOT BE APPLIED TO SEC. 50C WHICH IS BROUGHT ON STATUTE BOOK BY THE LEGISLA TURE TO CHECK BLACK MONEY. 6 WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIE S AND ALSO ANXIOUSLY CONSIDERED THE ARGUMENTS ADVANCED BY BOTH THE PARTI ES. THERE IS NO DISPUTE ABOUT THE FACT THAT IN THE SALE DEED, THE A SSESSEE HAS DECLARED SALE CONSIDERATION AT RS. 65 LACS AND FOR THE PURPOSE O F PAYMENT OF STAMP DUTY AT THE TIME OF REGISTRATION, THE VALUE IS ADOPTED A T RS. 1,03,32,000/-. 7 SECTION 52(2) WAS OMITTED W.E.F 1.4.1988 READ AS UNDER: 4 ITA NO.7024/MUM/2007 52 . WHERE THE PERSON WHO ACQUIRES A CAPITAL ASSET FRO M AN ASSESSEE IS DIRECTLY OR INDIRECTLY CONNECTED WITH THE ASSESSEE AND THE............................... (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECTION (1), IF IN THE OPINION OF THE INCOME-TAX OFFICER THE FAIR MARKET VALUE OF A CAPITAL ASSET TRANSFERRED BY AN ASSESSEE AS ON THE DATE OF THE TR ANSFER EXCEEDS THE FULL VALUE OF THE CONSIDERATION DECLARED BY THE ASS ESSEE IN RESPECT OF THE TRANSFER OF SUCH CAPITAL ASSET BY AN AMOUNT OF NOT LESS THAN FIFTEEN PER CENT. OF THE VALUE SO DECLARED, THE FULL VALUE OF T HE CONSIDERATION FOR SUCH CAPITAL ASSET SHALL, WITH THE PREVIOUS APPROVA L OF THE INSPECTING ASSISTANT COMMISSIONER, BE TAKEN TO BE ITS FAIR MAR KET VALUE ON THE DATE OF ITS TRANSFER. IN THE CASE OF K P VARGHESE ( SUPRA ), THE HONBLE SUPREME COURT HAS EXAMINED THE TOTAL SCHEME OF SEC. 52(2). AFTER EXA MINING THE RELEVANT CIRCULAR OF THE CBDT AND THE LANGUAGE USED BY THE L EGISLATURE, IT IS HELD THAT THE BURDEN OF SHOWING THAT THERE IS A UNDERSTATEMEN T IN RESPECT OF THE CONSIDERATION DECLARED BY THE ASSESSEE IS ON THE RE VENUE. IT IS FURTHER HELD THAT ONCE IT IS ESTABLISHED BY THE REVENUE THAT TH E CONSIDERATION HAS BEEN UNDERSTATED OR THE ASSESSEE HAS RECEIVED THE SALE C ONSIDERATION MORE THAN WHAT IS DECLARED OR DISCLOSED BY HIM, THEN THE PRO VISIONS OF SEC 52(2) ARE ATTRACTED. SO FAR AS THE SCHEME OF SEC. 52(2) IS CO NCERNED, SAME CANNOT BE EQUATED WITH SEC. 50C, WHICH READS AS UNDER: 50C. SPECIAL PROVISION FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING L AND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRE D TO AS THE STAMP VALUATION AUTHORITY) FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR A SSESSED SHALL, FOR THE PURPOSES OF SECTION 48, BE DEEMED TO BE THE FULL VA LUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF S UCH TRANSFER. (2) WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECT ION (1), WHERE (A) THE ASSESSEE CLAIMS BEFORE ANY ASSESSING OFFICE R THAT THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AU THORITY UNDER SUB-SECTION (1) EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER ; 5 ITA NO.7024/MUM/2007 (B) THE VALUE SO ADOPTED OR ASSESSED BY THE STAMP V ALUATION AUTHORITY UNDER SUB-SECTION (1) HAS NOT BEEN DISPUT ED IN ANY APPEAL OR REVISION OR NO REFERENCE HAS BEEN MADE BE FORE ANY OTHER AUTHORITY, COURT OR THE HIGH COURT, THE ASSESSING OFFICER MAY REFER THE VALUATION OF TH E CAPITAL ASSET TO A VALUATION OFFICER AND WHERE ANY SUCH REFERENCE IS M ADE, THE PROVISIONS OF SUB-SECTIONS (2), (3), (4), (5) AND (6) OF SECTI ON 16A, CLAUSE (I) OF SUB- SECTION (1) AND SUB-SECTIONS (6) AND (7) OF SECTION 23A, SUB-SECTION (5) OF SECTION 24, SECTION 34AA, SECTION 35 AND SECTION 37 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957), SHALL, WITH NECESSARY MODIF ICATIONS, APPLY IN RELATION TO SUCH REFERENCE AS THEY APPLY IN RELATIO N TO A REFERENCE MADE BY THE ASSESSING OFFICER UNDER SUB-SECTION (1) OF S ECTION 16A OF THAT ACT. EXPLANATION.FOR THE PURPOSES OF THIS SECTION, VAL UATION OFFICER SHALL HAVE THE SAME MEANING AS IN CLAUSE (R) OF SECTION 2 OF THE WEALTH-TAX ACT, 1957 (27 OF 1957). (3) SUBJECT TO THE PROVISIONS CONTAINED IN SUB-SECT ION (2), WHERE THE VALUE ASCERTAINED UNDER SUB-SECTION (2) EXCEEDS THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY REFERRED TO IN SUB-SECTION (1), THE VALUE SO ADOPTED OR ASSESSED BY SUCH AUTHORITY SHALL BE TAKEN AS THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACC RUING AS A RESULT OF THE TRANSFER. 7.1 AS PER THE LANGUAGE USED BY THE LEGISLATURE IN SEC. 50C, THE FOLLOWING CONDITIONS NEED TO BE FULFILLED: I) THERE MUST BE TRANSFER OF CAPITAL ASSET WHICH IS LAND OR BUILDING OR BOTH. II) THE CONSIDERATION RECEIVED OR ACCRUED ON THE TR ANSFER IS LESS THAN THE VALUE ADOPTED FOR ASSESSMENT BY THE STAMP VALUA TION AUTHORITY ON WHICH THE STAMP DUTY IS PAID. III) IF THE VALUATION ADOPTED BY THE STAMP VALUATIO N AUTHORITY IS MORE THAN CONSIDERATION DECLARED, THEN SUCH VALUE IS TO BE TREATED AS FULL VALUATION OF CONSIDERATION RECEIVED OR ACCRUED FOR THE PURPOSE OF SEC. 48. 6 ITA NO.7024/MUM/2007 8 IN OUR OPINION, THE LEGISLATIVE SCHEME OF SEC. 52 (2) WHICH IS OMITTED W.E.F 1.4.88 FROM THE ACT AND SEC. 50C IS TOTALLY D IFFERENT. THE GOLDEN RULE OF INTERPRETATION OF STATUTE IS TO GO WITH THE PLAIN M EANING OF THE WORDS USED BY THE LEGISLATURE. THE SUPREME COURT HAS ALREADY EXP LAINED THE OBJECT OF THE OMITTED SECTION 52(2) AND IN OUR HUMBLE OPINION, TH E PRINCIPLE LAID DOWN BY THE SUPREME COURT IN THE CASE OF K P VARGHESE (SUPR A) CANNOT BE APPLIED FOR INTERPRETING THE SECTION 50C, PUTTING THE BURDEN ON THE REVENUE TO ESTABLISH THAT THE ASSESSEE HAS UNDERSTATED THE CONSIDERATION . IT IS WELL SETTLED JUDICIAL PRINCIPLES THAT COURTS ONLY DECLARE AND IN TERPRET STATUTE AND DO NOT LEGISLATE. THE ABOVE PRINCIPLES HAVE BEEN REITERATE D BY THE HONBLE SUPREME COURT IN THE CASE OF PADMASUNDARA RAO VS STATE OF TAMIL NADU (255 ITR 147(SC): THE RIVAL PLEAS REGARDING REWRITING OF STATUTE AND CASUS OMISSUS NEED CAREFUL CONSIDERATION. IT IS WELL SETTLED PRINCIPLE IN LAW THAT THE COURT CANNOT READ ANYTHING INTO A STATUTORY PROVISION WHI CH IS PLAIN AND UNAMBIGUOUS. A STATUTE IS AN EDIT OF THE LEGISLATUR E. THE LANGUAGE EMPLOYED IN A STATUTE IS THE DETERMINATIVE FACTOR O F LEGISLATURE INTENT. THE FIRST AND PRIMARY RULE OF CONSTRUCTION IS THAT THE INTENTION OF THE LEGISLATURE MUST BE FOUND IN THE WORDS USED BY THE LEGISLATURE ITSELF. THE QUESTION IS NOT WHAT MAY BE SUPPOSED AND HAS BE EN INTENDED BUT WHAT HAS BEEN SAID. STATUTES SHOULD BE CONSTRUED N OT AS THEOREMS OF EUCLID. JUDGE LEARNED HAND SAID, BUT WORDS MUST B E CONSTRUED WITH SOME IMAGINATION OF THE PURPOSES WHICH LIE BEHIND T HEM (SEE LENIGH VALLEY COAL CO V YENSAVAGE (218 FR 547). THE VIEW W AS REITERATED IN UNION OF INDIA V FILP TIAGO DE GAMA OF VEDEM VASCO DE GAMA, AIR 1990 SC 981. IN D.R VENKATACHALAM V DEPUTY TRANSPORT COMMISSIONE R, AIR 1977 SC 842, IT WAS OBSERVED THAT COURTS MUST AVOID THE DAN GER OF A PRIORI DETERMINATION OF THE MEANING OF A PROVISION BASED O N THEIR OWN PRE- CONCEIVED NOTIONS OF IDEOLOGICAL STRUCTURE OR SCHEM E INTO WHICH THE PROVISION TO BE INTERPRETED IS SOMEWHAT FITTED. THE Y ARE NOT ENTITLED TO USURP LEGISLATIVE FUNCTION UNDER THE DISGUISE OF IN TERPRETATION. WHILE INTERPRETING A PROVISION THE COURT ONLY INTER PRETS THE LAW AND CANNOT LEGISLATE IT. 8.1 WE ARE, THEREFORE, OF THE OPINION THAT THE AO H AS RIGHTLY INVOKED THE PROVISIONS OF SEC. 50C WITH DUE AUTHORITY OF LAW. NOTHING HAS BEEN BROUGHT 7 ITA NO.7024/MUM/2007 BEFORE US TO SHOW THAT THE ASSESSEE CLAIMED BEFORE THE AO THAT THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY WAS MORE T HAN THE FMV OF THE SAID PROPERTY AND THERE IS NO REASON TO MAKE REFERE NCE TO THE VALUATION OFFICER. FOR THE REASONS GIVEN HEREIN ABOVE, WE CO NFIRM THE ORDER OF THE LD CIT(A) ON THIS ISSUE AND ACCORDINGLY, DISMISS THE G ROUND NO.1 TAKEN BY THE ASSESSEE. 9 NEXT ISSUE IS IN RESPECT OF SHORT TERM CAPITAL LO SS ON THE SALE OF EQUITY SHARES AND THE ASSESSEE HAS TAKEN GROUND NOS 2 & 3 ON THIS ISSUE. 10 THE ASSESSEE HAS CLAIMED SHORT TERM CAPITAL LOSS OF RS. 13,64,302/- ON ONE SCRIPT I.E. SURYADEEP SALT WHICH WAS PURCHAS ED BY THE ASSESSEE ON 2.1.2004 AND SOLD ON 26.3.2004. THE ASSESSEE PRODUC ED THE BROKERS NOTE IN RESPECT OF THE SALE AND PURCHASE OF THE ABOVE SCRIP T. THE AO HAS NOTED THAT THE ASSESSEE HAS SHOWN CREDIT OF SHARES AS ON 25.3. 2004 IN THE D-MAT ACCOUNT BUT THE PURCHASE DEAL OF THE SAID SCRIPT OF 22000 SHARES WAS DATED 2.1.2004. THE AO FURTHER OBSERVED THAT THE ASSESSEE IMMEDIATELY SOLD THE SAID SCRIPT AT VERY LESS PRICE AND CLAIMED HEAVY LO SS. THE AO HAS NOT ACCEPTED THE EXPLANATION OF THE ASSESSEE AND; ACCOR DINGLY HELD THAT IT WAS SHAM TRANSACTION AND TO GET BENEFIT OF THE SHORT TE RM CAPITAL LOSS, IT WAS MADE OFF MARKET TRANSACTION AND NOT ROUTED THROUGH THE BSE. THE ASSESSEE CARRIED THE ISSUE BEFORE THE LD CIT(A), WHO AFTER E XAMINING THE FACTS AND EVIDENCES ON RECORD DIRECTED THE AO TO OBTAIN MARKE T RATE OF THE PURCHASE OF THE SHARES AS ON 25.3.2004 I.E. THE DATE WHEN THE S HARES ACTUALLY BROUGHT ON THE SALE TRANSACTION OF 26.3.204 AND RECALCULATE D THE SHORT TERM CAPITAL GAIN. 10.1 THE LD COUNSEL SUBMITTED THAT THE ASSESSEE HAD FILED ADDITIONAL EVIDENCES WHICH IS AS UNDER: I) DEMAT STATEMENTS OF DRISHIT SECURITIES PVT LTD II) STOCK EXCHANGE QUOTATIONS 8 ITA NO.7024/MUM/2007 11 WE HAVE ALSO HEARD THE LD DR. ADMITTEDLY, THE AD DITIONAL EVIDENCES FILED BY THE ASSESSEE ARE RELEVANT TO THE ISSUE IN RESPECT OF THE SHORT TERM CAPITAL LOSS OF SHARES OF M/S. SURYADEEP SALT PVT LTD. THE ASSESSEE COULD NOT PRODUCE THE SAME BEFORE THE LOWER AUTHORITIES. IN THE INTEREST OF JUSTICE, WE ADMIT THE SAME. 11.1 THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION. THE LD. DR HAS NO OBJECTION. 12 AFTER CONSIDERING THE TOTALITY OF FACTS AND CIRC UMSTANCES OF THE CASE, WE ACCEPT THE PLEA OF THE ASSESSEE AND REMAND THE I SSUE BACK TO THE FILE OF THE AO. ACCORDINGLY, THE ORDER OF THE LD CIT(A) IS SET ASIDE AND REMAND THE MATTER TO THE FILE OF THE AO TO DECIDE THE SAME AFR ESH WITH THE DIRECTION TO DECIDE THE ISSUE DE NOVO AFTER CONSIDERING THE ADDI TIONAL EVIDENCES FILED BY THE ASSESSEE BEFORE US AND AFTER ALLOWING REASONABL E OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 13 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 25 TH , DAY OF JUNE 2010. SD/- SD/- ( A L GEHLOT ) ACCOUNTANT MEMBER (R S PADVEKAR ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 25 TH JUNE 2010 RAJ* 9 ITA NO.7024/MUM/2007 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI