Sri. Laxmidas Bapudas Darbar, Bagalkot V. ITO, Bagalkot

ITA 731/BANG/2014

• Counselvise Citation: 73121114 RSA 2014
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 13-08-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 27-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL KUMAR AGARWALA JT
• Keywords: Capital asset; Diversion of income; Cost of acquisition; Fair market value; Valuation report; Capital receipt; Surrender of tenancy right
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ITA NO.731/BANG/2014 ASSESSMENT YEAR : 2006-07 SRI LAXMIDAS BAPUDAS DARBAR, STATION ROAD, BAGALKOT. PAN : ACUPD 6719R VS. THE INCOME TAX OFFICER, WARD 1, BAGALKOT. APPELLANT RESPONDENT APPELLANT BY : SHRI S. PARTHASARATHI, ADVOCATE RESPONDENT BY : SHRI SUNIL KUMAR AGARWALA, JT. CIT(DR) DATE OF HEARING : 13.08.2015 DATE OF PRONOUNCEMENT : 26.08.2015 O R D E R PER N.V. VASUDEVAN, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORD ER DATED 29-3- 2014 OF CIT(A)-BELGAUM, RELATING TO ASSESSMENT YEAR 2006-07. ITA NO. 731/BANG/2014 PAGE 2 OF 22 2. THE ASSESSEE IS AN INDIVIDUAL. FOR AY 2006-07, HE FILED A RETURN OF INCOME DECLARING LOSS FROM BUSINESS AT RS.1,25,611/ -, INCOME FROM HOUSE PROPERTY AT RS.1,51,637/- AND INCOME UNDER THE HEAD LONG TERM CAPITAL GAIN OF RS.49,825. THE TOTAL INCOME DECLARED IN T HE RETURN OF INCOME WAS RS.31,605/-. THE DISPUTE IN THIS APPEAL IS WITH RE GARD TO THE INCOME DECLARED BY THE ASSESSEE UNDER THE HEAD LONG TERM CAPITAL GAIN. 3. PROPERTY BEING VACANT LAND MEASURING 1 ACRE AND 10 GUNTAS IN R.S.NO.87 AND 1 ACRE AND 14 GUNTAS IN R.S.NO.93 RES PECTIVELY IN MARIYAN TIMMASAGAR VILLAGE, TALUKA HUBLI, DISTRICT DHARWAD, HEREINAFTER REFERRED TO AS THE PROPERTY, BELONGED TO GURAPPA CHANNABASAPP A BELAGAVI, AND SANNA IRAPAVA, WHO WERE THE JOINT OWNERS OF THE PRO PERTY. BY A REGISTERED LEASE DEED DATED 1.3.1905 THEY GRANTED ON LEASE FOR A PERIOD OF 99 YEARS THE PROPERTY TO ONE ANANT PARASURAMASA GOANKAR. TH E LESSEES HAD A RIGHT TO CONTINUE THE LEASE ON THE SAME TERMS AND CONDITI ONS. THE LEASE DEED ALSO PROVIDED THAT THE LESSEE CAN ALIENATE THE LEAS EHOLD RIGHTS. BY A REGISTERED SALE DEED DATED 7.12.1907, ANANT PARASUR AMASA GOANKAR SOLD THE LEASEHOLD RIGHTS OVER THE PROPERTY TO ONE RAMDA S S/O. VITTALDAS DARBAR FOR A SUM OF RS.8,500/-. IT IS NOT IN DISPUTE THAT THE ASSESSEE HEREIN SUCCEEDED TO THE PROPERTY AND WAS THE SOLE OWNER OF THE LEASEHOLD RIGHTS OVER THE PROPERTY. 4. A GINNING FACTORY WAS CONSTRUCTED BY THE ASSESSE E OVER THE PROPERTY AND BUSINESS OF GINNING WAS CARRIED ON BY THE ASSES SEE THEREIN. SMT. ITA NO. 731/BANG/2014 PAGE 3 OF 22 MADHUKANTA LAXMIDAS DARBAR WAS THE WIFE OF THE ASSE SSEE. THE ASSESSEE AND HIS WIFE HAD DIFFERENCES AND DECIDED T O LIVE APART. BY AN AGREEMENT TO LIVE APART DATED 4.11.1972 THE ASSESSE E AND HIS WIFE AGREED THAT THE LEASEHOLD RIGHT OVER THE PROPERTY AND THE BUSINESS OF GINNING TOGETHER WITH THE FACTORY BUILDING WILL BE GIVEN TO THE ASSESSEES WIFE. THUS THE GINNING BUSINESS, LEASEHOLD RIGHTS OVER THE PRO PERTY BELONGED TO THE ASSESSEES WIFE. 5. IN THE YEAR 1986, THE SUCCESSORS IN INTEREST OF LESSOR OF THE PROPERTY FILED A PETITION FOR EVICTION OF THE ASSESSEE AND T HE ASSESSEES WIFE FROM THE PROPERTY UNDER THE KARNATAKA RENT CONTROL ACT, 1961. THE HONBLE SUPREME COURT IN CIVIL APPEAL NO.2031 OF 2000 BY IT S JUDGMENT DATED 27.8.2001 HELD THAT THE FIXED TERM LEASE WILL NOT S TAND OBLITERATED BECAUSE OF THE PROVISIONS OF THE KARNATAKA RENT CONTROL ACT , 1961 AND THEREFORE THE PETITION FOR EVICTION WAS LIABLE TO BE DISMISSED. 6. THE ASSESSEE AND HIS WIFE FILED A SUIT BEARING O .S.NO.45/2004 IN THE COURT OF THE II ADDITIONAL CIVIL JUDGE, JUNIOR DIVISION, HUBLI, SEEKING DIRECTION FOR RENEWAL OF THE LEASE FOR A FURTHER PE RIOD OF 99 YEARS AGAINST THE SUCCESSORS IN INTEREST OF LESSOR OF THE PROPERTY. THE PARTIES ULTIMATELY ENTERED INTO A COMPROMISE AND A DECREE IN TERMS OF THE COMPROMISE DATED 27.6.2005 WAS PASSED. THE MAIN TERMS OF THE COMPRO MISE WAS THAT THE ASSESSEE WAS GRANTED PERMANENT LEASE IN RESPECT OF AN AREA OF 42 GUNTAS OF THE PROPERTY TOGETHER WITH BUILDINGS MEASURING A BOUT 11,000 SQ.FT. THE ITA NO. 731/BANG/2014 PAGE 4 OF 22 ASSESSEE WAS TO PAY A SUM OF RS.165.50 PS., AS ANNU AL RENT PAYABLE ON OR BEFORE 31 ST MARCH OF EVERY YEAR. THE ASSESSEE AND HIS WIFE DE LIVERED POSSESSION OF THE REMAINING EXTENT OF THE PROPERTY AND GAVE UP THEIR RIGHT OVER THE SAID AREA OF THE PROPERTY. CLAUSE-11 OF T HE COMPROMISE MEMO PROVIDED THAT THE BUILDING CONSTRUCTED OVER THE ARE A OVER WHICH THE LESSEES GAVE UP THEIR RIGHTS IN FAVOUR OF THE LESSOR SHALL BE REMOVED BY THE LESSEE AT HIS COST. CLAUSE-14 OF THE COMPROMISE MEMO PROV IDED THAT A COMMON WALL DEMARCATING THE PORTION OF THE PROPERTY ALLOTT ED TO THE LESSOR AND LESSEE SHALL BE CONSTRUCTED. THE COST OF CONSTRUCT ION OF THE COMMON WALL WAS TO BE BORNE BY THE PARTIES EQUALLY. 7. THE LESSORS ALSO PAID A SUM OF RS.33,00,000 TO T HE ASSESSEE AND HIS WIFE ON 27.6.2005. THE RECEIPT CUM ACKNOWLEDGE MENT GIVEN BY THE ASSESSEE AND HIS WIFE DATED 27.6.2005 ACKNOWLEDGES THE COMPROMISE MEMO BETWEEN THE PARTIES. IT FURTHER ACKNOWLEDGES THAT THE ASSESSEE AND HIS WIFE WOULD BEAR EXPENSES OF REGISTRATION OF THE COMPROMISE DECREE AND EXPENSES OF DISMANTLING AND REMOVING THE STRUCTURES STANDING THE AREA SURRENDERED TO THE LESSORS. 8. IN THE RETURN OF INCOME FILED BY THE ASSESSEE FO R AY 2006-07, THE RECEIPT OF RS.33 LACS WAS DECLARED BY THE ASSESSEE AS INCOME UNDER THE HEAD LONG TERM CAPITAL GAIN (LTCG) ON SURRENDER O F TENANCY RIGHTS. THE COMPUTATION OF LTCG AS GIVEN BY THE ASSESSEE WA S AS FOLLOWS:- ITA NO. 731/BANG/2014 PAGE 5 OF 22 AMOUNT RECEIVED AS PER RECEIPT-CUM-ACKNOWLEDGEMENT DT 27/06/2005 33,00,000 LESS: DISMANTLING EXPENSES OF STRUCTURE ON LEASEHOLD PROPERTY 5,81,090 --------------- 27,18,910 LESS: REGISTRATION EXPENSES TOWARDS COMPROMISE DECREE STAMP DUTY 7,58,500 REGN. CHARGES 85,475 COMMISSION CHARGES 1,139 MISC EXP. 4,525 ----------- 8,49,639 --------------- INCOME SUBJECT TO LTCG 18,69,271 LESS: COST OF ACQUISITION AS TENANCY RIGHT HENCE VALUE AS ON NIL 1981 AS COMPENSATION RECEIVED INCLUDING RESIDENTIAL STRUCTURE CONSTRUCTED BY LESSEE DURING TENURE OF LEASE, THE LESSEE IS ABSOLUTE OWNER AND HENCE VALUATION OF STRUCTURE AS ON 1981 (AS PER VALUATION REPORT) RS.205120 HENCE INFLATION COST AS PER INDEX 2005/06 497 205120 X 497 1019446 100 ------------ 10,19,446 -------------- 8,49,825 LESS: AMOUNT DEPOSITED IN CAPITAL GAIN A/C IN BANK OF BARODA, HUBLI ON 14/12/2005 (FOR CONSTRUCTION OF RESIDENTIAL HOUSE) 8,00,000 -------------- LONG TERM CAPITAL GAIN 49,825 -------------- ITA NO. 731/BANG/2014 PAGE 6 OF 22 9. IN A NOTE FILED ALONG WITH THE RETURN OF INCOME THE ASSESSEE EXPLAINED THE LITIGATION IN RESPECT OF THE PROPERTY AND CLAIMED THAT THE RECEIPT IN QUESTION WAS ON SURRENDER OF LEASEHOLD R IGHTS WHICH WAS A CAPITAL ASSET AND THEREFORE THE INCOME FROM SUCH TRANSFER O F CAPITAL ASSET IS LIABLE TO TAXED UNDER THE HEAD CAPITAL GAINS. THE NOTE ALSO REFERS TO THE FACT THAT THE ASSESSEES WIFE SMT. MADHUKANTA DARBAR WAS JOINT LESSEE OF THE PROPERTY BY VIRTUE OF THE AGREEMENT TO LIVE APART D ATED 4.11.1972 WHEREBY THE ASSESSEE AND HIS WIFE AGREED THAT THE LEASEHOLD RIGHT OVER THE PROPERTY AND THE BUSINESS OF GINNING TOGETHER WITH THE FACTO RY BUILDING WILL BE GIVEN TO THE ASSESSEES WIFE. THE NOTE FURTHER REFERS TO THE PROVISIONS OF SEC.64(1) OF THE INCOME TAX ACT, 1961 (THE ACT) A ND STATES THAT IT IS THE ASSESSEE WHO IS REQUIRED TO BE ASSESSED TO TAX ON T HE ENTIRE CAPITAL GAIN. WE NEED NOT IN THIS APPEAL DEAL MUCH WITH THE APPLI CABILITY OF SEC.64(1) OF THE ACT BECAUSE EVEN THE REVENUE HAS PROCEEDED TO T AX THE ASSESSEE IN RESPECT OF THE ENTIRE CAPITAL GAIN. 10. THE ASSESSING OFFICER DID NOT ALLOW THE CLAIM O F THE ASSESSEE FOR DEDUCTION A SUM OF RS.5,81,090 WHICH WAS CLAIMED BY THE ASSESSEE TO BE EXPENDITURE IN DEMOLITION OF STRUCTURES OVER THE PR OPERTY SURRENDERED TO THE LESSORS. THE ASSESSING OFFICER ALSO DID NOT ALLOW THE CLAIM OF THE ASSESSEE FOR DEDUCTION ON ACCOUNT OF COST OF ACQUISITION OF THE BUILDING AND INDEXATION ON SUCH COST. THE CLAIM OF THE ASSESSEE FOR DEDUCTION ON THIS ACCOUNT WHICH WAS DISALLOWED BY THE AO WAS A SUM OF RS.10,19,446. ITA NO. 731/BANG/2014 PAGE 7 OF 22 11. AS FAR AS THE CLAIM OF THE ASSESSEE FOR DEDUCT ION OF A SUM OF RS.15,81,090 TOWARDS DISMANTLING EXPENSES OF STRUCT URE OF LEASEHOLD PROPERTY IS CONCERNED, THE AO WAS OF THE VIEW THAT THE AFORESAID EXPENDITURE DOES NOT FALL WITHIN THE PERMISSIBLE DE DUCTION U/S. 48 OF THE ACT. ACCORDING TO THE AO, ONLY COST OF IMPROVEMENT CAN B E ALLOWED AS A DEDUCTION. THE AO WAS ALSO OF THE VIEW THAT THE STR UCTURE IN QUESTION WAS NOT CONSTRUCTED EITHER BY THE ASSESSEE OR HIS WIFE AND THAT DARBAR GINNING FACTORY, HUBLI HAD INCURRED THE EXPENSES. THE AO A LSO REFERRED TO THE STATEMENT OF THE ASSESSEE RECORDED U/S. 131 ON 12.1 1.2008 WHEREIN THE ASSESSEE ADMITTED THAT THE DISMANTLING EXPENSES WER E INCURRED BY HIS WIFE. FOR THE ABOVE REASONS, THE AO DISALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION OF RS.5,81,090. 12. AS FAR AS DEDUCTION OF RS.10,19,446 WHICH WAS T HE INDEXED COST OF ACQUISITION OF THE STRUCTURE CLAIMED AS DEDUCTION B Y THE ASSESSEE IN THE COMPUTATION OF CAPITAL GAIN, THE AO NOTICED THAT VA LUE OF THE STRUCTURE CLAIMED BY THE ASSESSEE AS ON 1.4.1981 WAS RS.2,05, 120. THE VALUATION REPORT IN SUPPORT OF THE CLAIM OF THE ASSESSEE HAD ALSO BEEN FILED. ACCORDING TO THE AO, THERE WAS NO DOCUMENTARY PROOF AVAILABLE WITH THE ASSESSEE TO PROVE THAT CONSTRUCTION WAS MADE BY THE ASSESSEE IN HIS CAPACITY AS LESSEE. THERE WAS NO ASSET SHOWN IN TH E BALANCE SHEET OF THE ASSESSEE IN THE EARLIER YEARS. THE AO ALSO REFERRE D TO THE STATEMENT OF THE ASSESSEE RECORDED U/S. 131 OF THE ACT ON 12.11.2008 , WHEREIN HE ADMITTED THAT INVESTMENT OF RS.2,05,120 ON CONSTRUCTION WAS MADE BY HIS WIFE AND ITA NO. 731/BANG/2014 PAGE 8 OF 22 THAT A SUM OF RS.1,63,555 WAS SPENT BY THE ASSESSEE S WIFE SINCE THE YEAR 1972 AND REFLECTED IN THE BALANCE SHEET OF THE ASSE SSEES WIFES BUSINESS OF GINNING. THE AO ALSO NOTICE THAT EVEN IN THE F. Y. 2006-07, VALUE OF THE FACTORY BUILDING WAS APPEARING IN THE BALANCE SHEET OF ASSESSEES GINNING FACTORY. 13. FOR THE ABOVE REASONS, THE AO DISALLOWED THE CL AIM OF ASSESSEE FOR DEDUCTION OF RS.10,19,446. THE AO ULTIMATELY COMP UTED LTCG AS FOLLOWS:- LONG TERM CAPITAL GAINS AMOUNT RECEIVED AS DECLARED RS.33,00,000 (-) REGN. EXPENSES AS CLAIMED 8,49,639 (-) AMOUNT INVESTED IN CAPITAL GAINS SCHEME & WITHDRAWN AS STATED IN PARA-5 ABOVE 8,00,000 ----------- RS.16,49,639 ----------------- NET CAPITAL GAINS RS.16,50,361 ----------------- 14. AGGRIEVED BY THE ACTION OF THE AO, ASSESSEE PR EFERRED APPEAL BEFORE THE CIT(APPEALS). BEFORE THE CIT(A), A CONT ENTION WAS TAKEN BY THE ASSESSEE THAT SINCE THE LEASEHOLD RIGHTS IN THE PRO PERTY AND THE GINNING FACTORY EXISTING THEREON WAS GIVEN BY THE ASSESSEE TO HIS WIFE UNDER AN AGREEMENT TO LIVE APART DATED 4.11.1972, COMPENSATI ON RECEIVED FOR SURRENDER OF TENANCY RIGHTS SHOULD BE CHARGED ONLY IN THE HANDS OF ASSESSEES WIFE. THE ASSESSEE ALSO POINTED OUT THAT THE ASSESSEES WIFE ITA NO. 731/BANG/2014 PAGE 9 OF 22 WAS ASSESSED TO TAX INDEPENDENTLY IN RESPECT OF INC OME FROM GINNING BUSINESS AND THEREFORE PROVISIONS OF SECTION 64(1) OF THE ACT COULD NOT HAVE BEEN INVOKED BY THE AO TO ASSESSEE CAPITAL GAIN IN QUESTION IN THE HANDS OF THE ASSESSEE. THE PROVISIONS OF SEC.64(1)(IV) W HICH IS RELEVANT FOR THE PRESENT CASE READS THUS: INCOME OF INDIVIDUAL TO INCLUDE INCOME OF SPOUSE, MINOR CHILD, ETC. 64. (1) IN COMPUTING THE TOTAL INCOME OF ANY INDIVIDUAL , THERE SHALL BE INCLUDED ALL SUCH INCOME AS ARISES DIRECTL Y OR INDIRECTLY ( I ) TO (III). ( IV ) SUBJECT TO THE PROVISIONS OF CLAUSE ( I ) OF SECTION 27, TO THE SPOUSE OF SUCH INDIVIDUAL FROM ASSETS TRANSFERRED D IRECTLY OR INDIRECTLY TO THE SPOUSE BY SUCH INDIVIDUAL OTHERWI SE THAN FOR ADEQUATE CONSIDERATION OR IN CONNECTION WITH AN AGR EEMENT TO LIVE APART ; 15. THE ASSESSEE ALSO FURTHER SUBMITTED THAT SINCE THE ASSESSEES WIFE GOT THE LEASEHOLD RIGHTS AND THE GINNING FACTORY UN DER AN AGREEMENT TO LIVE APART/FAMILY ARRANGEMENT FOR HER LIFE AND FOR HER M AINTENANCE, THERE WAS NO COST OF ACQUISITION OF LEASEHOLD RIGHTS BY HER. SIN CE THERE WAS NO COST OF ACQUISITION OF THE LEASEHOLD RIGHTS WHICH WAS THE S UBJECT MATTER OF TRANSFER, IT IS NOT POSSIBLE TO COMPUTE CAPITAL GAIN ON SURRE NDER OF LEASEHOLD RIGHTS IN THE HANDS OF THE ASSESSEES WIFE. IN VIEW OF THE D ECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V. B.C. SRINIVASA SETTY (128 ITR 294 (SC) , WHEREIN IT WAS HELD THAT WHERE THE COST OF ACQUIS ITION CANNOT BE ITA NO. 731/BANG/2014 PAGE 10 OF 22 DETERMINED, THE COMPUTATION OF CAPITAL GAIN U/S. 48 IS NOT POSSIBLE AND THEREFORE THE CHARGE TO TAX U/S. 45 OF THE ACT SHOU LD ALSO FAIL. 16. THE ASSESSEE THUS PLEADED THAT CAPITAL GAIN IN QUESTION CANNOT BE BROUGHT TO TAX EITHER IN THE HANDS OF ASSESSEE OR I N THE HANDS OF HIS WIFE. THE ASSESSEE ALSO PLEADED THAT MERE DECLARATION OF INCOME BY THE ASSESSEE, WHEN THERE WAS NO LIABILITY OR CHARGE TO TAX, CANNOT BE THE BASIS TO BRING THE RECEIPT TO TAX, WHEN IT IS IN LAW NOT TAXABLE. 17. WITHOUT PREJUDICE TO THE ABOVE, THE ASSESSEE AL SO CLAIMED THAT COMPUTATION OF CAPITAL GAIN AS GIVEN BY THE ASSESSE E SHOULD BE ACCEPTED. 18. THE CIT(APPEALS), HOWEVER, ISSUED A NOTICE OF E NHANCEMENT DATED 30.1.2014 TO THE ASSESSEE. ACCORDING TO THE CIT(A) , THE RECEIPT OF RS.33 LAKHS BY THE ASSESSEE WAS NOT PART OF THE COMPROMIS E DECREE FILED BEFORE THE COURT. THE SAID SUM WAS PAID ONLY FOR THE PURPO SE OF DISMANTLING THE STRUCTURE. THE CIT(A) WAS ALSO OF THE VIEW THAT TH ERE WAS NO TRANSFER OF ANY CAPITAL ASSET BY THE ASSESSEE AND THEREFORE PRO VISIONS OF SECTION 45 OF THE ACT DID NOT COME INTO PLAY. ACCORDING TO HIM, THE ENTIRE RECEIPT OF RS.33 LAKHS HAD TO BE ASSESSED AS INCOME FROM OTHER SOUR CES IN THE HANDS OF ASSESSEE AND NO EXPENSES WHATSOEVER CAN BE ALLOWED AGAINST THE SAID RECEIPT, BECAUSE DEDUCTION CLAIMED BY THE ASSESSEE DID NOT FALL WITHIN THE CATEGORY OF EXPENSES INCURRED FOR THE PURPOSE OF EA RNING THE SUM OF RS.33 LAKHS. ITA NO. 731/BANG/2014 PAGE 11 OF 22 19. APART FROM THE ABOVE, THE CIT(APPEALS) WAS OF T HE VIEW THAT THE ASSESSEE GOT ABSOLUTE TITLE TO LAND MEASURING 42 GU NTAS AND BUILDING MEASURING 11,100 SQ.FT. THE FAIR MARKET VALUE (FMV ) OF THIS PROPERTY WAS REPORTED BY THE AO AT A SUM OF RS.84,65,000. THIS V ALUE, ACCORDING TO THE CIT(A), HAD TO BE ASSESSED AS INCOME FROM OTHER SO URCES. THE CIT(A) DID NOT MENTION THE SECTION OF THE ACT UNDER WHICH THE AFORESAID AMOUNT WAS TO BE BROUGHT TO TAX. 20. THE ASSESSEE, IN REPLY TO ENHANCEMENT NOTICE, S UBMITTED THAT THERE WAS RELINQUISHMENT OF LEASEHOLD RIGHTS IN FAVOUR OF LESSORS, WHICH RESULTED IN A TRANSFER OF CAPITAL ASSET GIVING RISE TO CHARG E U/S. 45 OF THE ACT AND THE CONCLUSIONS OF THE CIT(A) TO THE CONTRARY WERE ERRO NEOUS. 21. WITH REGARD TO THE FMV OF THE AREA OF 42 GUNTAS OF LAND AND BUILDING RECEIVED BY THE ASSESSEE, THE ASSESSEE SUBMITTED TH AT WHAT WAS OBTAINED UNDER THE COMPROMISE DECREE WAS ONLY LEASEHOLD RIGH T WHICH THE ASSESSEE ALREADY HAD AND THEREFORE THE ASSESSMENT AS PROPOSE D BY THE CIT(A) IN THE FORM OF ENHANCEMENT CANNOT BE LEGALLY MADE. 22. THE CIT(APPEALS), HOWEVER, WAS OF THE VIEW THAT :- (1) RECEIPT OF RS.33 LAKHS WAS NOT PART OF COMPROMI SE DECREE OF COURT AND THEREFORE WAS NOT A PAYMENT IN CONNECTION WITH TRANSFER OF CAPITAL ASSET WHICH CAN GIVE RISE TO APPLICATION OF PROVISIONS OF SECTION 45 OF THE ACT; THE SAID RECEIPT WAS TO BE A SSESSED UNDER THE ITA NO. 731/BANG/2014 PAGE 12 OF 22 HEAD INCOME FROM OTHER SOURCES. NONE OF THE ITEM S OF DEDUCTION COULD BE ALLOWED BECAUSE THE DEDUCTIONS CLAIMED WER E NOT PERMISSIBLE WHILE COMPUTING INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. (2) FMV OF THE LAND ALLOTTED TO THE ASSESSEE HAD TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES; AND (3) WITH REGARD TO ASSESSMENT OF INCOME IN THE HAND S OF ASSESSEES WIFE, IT WAS HELD THAT BOTH THE ASSESSEE AND HIS W IFE WERE LIVING IN THE SAME PREMISES AND THEREFORE PROVISIONS OF SECTI ON 64 OF THE ACT WERE ATTRACTED AND HENCE ASSESSMENT OF INCOME IN TH E HANDS OF ASSESSEE WAS PROPER. 23. AGGRIEVED BY THE ORDER OF CIT(APPEALS), THE AS SESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. THE MAIN GR IEVANCE PROJECTED BY THE ASSESSEE IN THE GROUNDS OF APPEAL MAY BE SUMMED UP IN THE FORM OF FOLLOWING ISSUES:- (I) WHETHER THE CIT(APPEALS) WAS RIGHT IN COMING TO THE CONCLUSION THAT THERE WAS NO TRANSFER OF LEASEHOLD RIGHTS BY THE AS SESSEE IN FAVOUR OF THE LESSORS? (II) WHETHER RECEIPT OF RS.33 LAKHS BY THE ASSESSEE CANNOT BE ATTRIBUTED TO SUCH TRANSFER (RELINQUISHMENT) OF LEASEHOLD RIGH TS IN FAVOUR OF LESSORS? ITA NO. 731/BANG/2014 PAGE 13 OF 22 (III) WHETHER THE ACTION OF THE CIT(APPEALS) IN BRI NGING TO TAX THE FMV OF 42 GUNTAS OF LAND & BUILDING OBTAINED BY THE ASSESS EE UNDER COMPROMISE DECREE IN THE FORM OF PERPETUAL LEASEHOL D RIGHT UNDER THE HEAD INCOME FROM OTHER SOURCES CAN BE SUSTAIN ED? (IV) WHETHER THE CLAIM OF ASSESSEE FOR COMPUTATION OF CAPITAL GAINS TAX AS MADE IN THE RETURN OF INCOME SHOULD BE ACCEPTED? (V) WHETHER THE ASSESSEE IS NOT LIABLE TO TAX ON TH E CAPITAL GAIN IN QUESTION BY REASON OF THE FAMILY ARRANGEMENT DATED 4.11.1972 AND THEREFORE THE INCOME IN QUESTION WAS RIGHTLY ASSESS ABLE TO TAX ONLY IN THE HANDS OF THE ASSESSEES WIFE? (VI) WHETHER THE CLAIM OF THE ASSESSEE THAT IN THE EVENT OF ASSESSEE NOT BEING ALLOWED DEDUCTION OF A SUM OF RS.10,19,446, W HICH WAS THE INDEXED COST OF ACQUISITION OF THE STRUCTURE, THEN WHETHER ASSESSEE IS ENTITLED TO A DEDUCTION ON ACCOUNT OF COST OF AC QUISITION OF THE LEASEHOLD RIGHTS AS INDEXED WHILE COMPUTING CAPITAL GAIN, ESPECIALLY IN THE LIGHT OF PROVISIONS OF SECTION 48 OF THE ACT ? 24. WE HAVE HEARD THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR ON THE ABOVE ISSUES THAT ARISE FOR CONSIDERATION. THE LEARNED DR RELIED ON THE ORDER OF THE CIT(A). THE LEARNED COUNSEL FOR THE A SSESSEE REITERATED SUBMISSIONS THAT WERE MADE BEFORE CIT(A). ITA NO. 731/BANG/2014 PAGE 14 OF 22 25. WITH A VIEW TO GIVE COITUS TO THE ENTIRE LITIGATION, IN OUR VIEW, IT WOULD BE APPROPRIATE TO UPHOLD THE ASSESSMENT IN THE HAND S OF THE ASSESSEE AND ALSO EXAMINE THE QUESTION AS TO :- (1) WHETHER THE ASSESSMENT OF FMV OF 42 GUNTAS OF L AND TOGETHER WITH BUILDING AS INCOME FROM OTHER SOURCES IN THE HAND S OF ASSESSEE WAS JUSTIFIED? (2) WHETHER THE ASSESSEE WOULD BE RIGHTLY ENTITLED TO CLAIM OF DEMOLITION EXPENSES OF RS.5,91,090? (3) WHETHER THE ASSESSEE SHOULD BE ALLOWED DEDUCTI ON ON ACCOUNT OF COST OF ACQUISITION OF LEASEHOLD RIGHTS? AND (4) WHETHER THE SUM OF RS.33 LAKHS RECEIVED BY THE ASSESSEE WAS TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES OR CAPITAL GAIN? 26. A SUGGESTION WAS PUT TO THE LD. COUNSEL FOR THE ASSESSEE ON THE EXAMINATION OF THE AFORESAID QUESTIONS, TO WHICH TH E LD. COUNSEL FOR THE ASSESSEE DID NOT OBJECT. WE NOW PROCEED TO EXAMINE THE ABOVE ISSUES. 27. FIRSTLY WE TAKE UP THE QUESTION AS TO WHETHER T HE SUM OF RS.33 LAKHS WAS RECEIVED BY THE ASSESSEE WAS ASSESSABLE UNDER T HE HEAD INCOME FROM OTHER SOURCES OR CAPITAL GAIN. ITA NO. 731/BANG/2014 PAGE 15 OF 22 28. UNDER SECTION 45 OF THE ACT, ANY PROFIT OR GAIN ARISING FROM THE TRANSFER OF A CAPITAL ASSET SHALL BE CHARGEABLE TO INCOME TAX UNDER THE HEAD CAPITAL GAINS. U/S. 48 OF THE ACT, THE MODE OF COMP UTING THE CAPITAL GAINS HAS BEEN PRESCRIBED. IT IS LAID DOWN THEREIN THAT CAPITAL GAIN SHALL BE COMPUTED BY DEDUCTING FROM THE FULL VALUE OF THE CO NSIDERATION RECEIVED AS RESULT OF TRANSFER OF CAPITAL ASSET, EXPENDITURE IN CURRED IN CONNECTION WITH SUCH TRANSFER AND THE COST OF ACQUISITION OF THE AS SET AND THE COST OF IMPROVEMENT THERETO. CAPITAL ASSET HAS BEEN DEFINE D IN SEC.2(14) OF THE ACT TO MEAN PROPERTY OF ANY KIND HELD BY AN ASSESSE E, WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION. IN CIT V/S. TATA SERVICES LIMITED 122 ITR 594 (BOM.) IT WAS HELD THAT THE WORD PROPERTY U/S.2(14) IS OF WIDEST AMPLITUDE AND INCLUDES ANY RIGHT WHICH CA N BE INCLUDED IN DEFINITION OF CAPITAL ASSET. IN PONDS (INDIA) LTD. V/S. DCIT 64 ITD 33 (MUM) THE ITAT HAD TO DECIDE A CASE IN WHICH BY AN AGREE MENT DATED 18.04.81, THE ASSESSEE AGREED TO PURCHASE IMMOVABLE PROPERTY FROM K AND TOOK THE POSSESSION. BY ANOTHER AGREEMENT DATED 03.01.1991, THE ASSESSEE GAVE UP HIS RIGHTS ACQUIRED FOR CERTAIN CO NSIDERATION. IT WAS HELD THAT THE COMPENSATION RECEIVED ON GIVING UP RIGHT T O PURCHASE WAS TREATED AS LONG TERM CAPITAL GAIN. IN J.K. KASHYAP V/S. ACIT 302 ITR 255 (DELHI) THE QUESTION BEFORE THE HONBLE DELHI HIGH COURT WA S AS TO WHAT WAS RELINQUISHMENT OF RIGHT IN CAPITAL ASSET U/S.2(14) OF THE ACT. THE ASSESSEE MADE PAYMENT FOR ACQUISITION OF PROPERTY BY AN AGRE EMENT IN 1990. THE TRANSACTION DID NOT MATERIALIZE. HE RELINQUISHED H IS RIGHT IN FAVOUR OF NEW ITA NO. 731/BANG/2014 PAGE 16 OF 22 VENDEE IN 1995. THE CONSIDERATION RECEIVED FOR REL INQUISHMENT OF INTEREST IN PROPERTY WAS HELD TO BE LIABLE TO LONG TERM CAPI TAL GAIN. IN CIT V/S. VIJAY FLEXIBLE CONTAINERS 186 ITR 693(BOM) , IT WAS HELD THAT GIVING UP OF THE RIGHT TO OBTAIN CONVEYANCE OF IMMOVABLE PROPERTY AM OUNTS TO TRANSFER OF A CAPITAL ASSET. SIMILAR RULING WAS ALSO RENDERED IN THE CASE OF CIT V/S. VIMAL LALCHAND MUTHA 187 ITR 613(BOM) . IN THIS CASE, THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR THE SALE OF A FLAT IN NOVEMBER, 1997 AND HAD EXECUTED A FORMAL AGREEMENT IN DECEMBER, 1978. SHE TRANSFERRED HER RIGHT, TITLE AND INTEREST IN THE FLAT BY AN AGREEME NT TO C IN APRIL, 1983. THE QUESTION BEFORE THE HONBLE HIGH COURT WAS AS TO WH ETHER THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE RIGHTS UNDER THE SAID TWO AGREEMENTS OF NOVEMBER, 1977 / DECEMBER, 1978, HAD BEEN HELD FOR MORE THAN 36 MONTHS AND THAT THE GAINS ARISING FROM THE TRANSFER OF HER RIGHTS U NDER THE AGREEMENT IN APRIL, 1983, CONSTITUTED LONG-TERM CAPITAL GAIN. T HE HONBLE HIGH COURT UPHELD THE ORDER OF THE TRIBUNAL. 29. IN CIT VS. SANDHU BROTHERS 273 ITR 1 (SC) , THE HONBLE SUPREME COURT OBSERVED THAT THE TENANCY RIGHT IS A CAPITAL ASSET, THE SURRENDER OF THE TENANCY RIGHT IS A 'TRANSFER' AND THE CONSIDERATION RECEIVED THEREFORE A CAPITAL RECEIPT WITHIN THE MEANING OF SECTION 45 OF THE ACT, HAS NOT BEEN QUESTIONED BEFORE US AND MUST IN ANY EVENT BE TAKEN TO BE CONCLUDED BY THE DECISION OF THIS COURT IN A. GASPER VS. CIT 192 ITR 382 (SC) . ITA NO. 731/BANG/2014 PAGE 17 OF 22 30. IN THE PRESENT CASE, THE APPROACH OF THE CIT(AP PEALS) APPEARS TO BE THAT IN THE COMPROMISE DECREE, THERE IS NO REFERENC E TO THIS SUM OF RS.33 LAKHS. HOWEVER, ON PERUSAL OF THE RECEIPT-CUM-ACKN OWLEDGEMENT DATED 27.6.2005, IT BECOMES CLEAR THAT SUM OF RS.33 LAKHS WAS GIVEN ONLY FOR THE ASSESSEE AND HIS WIFE, GIVING UP THEIR LEASEHOLD IN TEREST IN RESPECT OF A PORTION OF PROPERTY AS DESCRIBED IN THE COMPROMISE MEMO. THE RECEIPT IN QUESTION IS THEREFORE CLEARLY ATTRIBUTABLE TO SURRE NDER OF LEASEHOLD RIGHTS. THE FACT THAT THE COMPROMISE DECREE OF THE COURT DO ES NOT MAKE A REFERENCE TO THE SUM OF RS.33 LACS CANNOT BE THE BA SIS TO CONCLUDE THAT THE SAID PAYMENT WAS NOT FOR SURRENDER OF LEASEHOLD RIG HTS OF THE ASSESSEE OVER PORTION OF THE PROPERTY. THE COMPROMISE MEMO BASED ON WHICH THE HONBLE COURT PASSED THE COMPROMISE DECREE AND THE RECEIPT CUM ACKNOWLEDGMENT FOR THE ASSESSEE HAVING RECEIVED A S UM OF RS.33 LACS ARE BOTH DATED 27.6.2006. THE RECEIPT CUM ACKNOWLEDGEM ENT FOR HAVING RECEIVED A SUM OF RS.33 LACS GIVEN BY THE ASSESSEE TO THE LESSORS RECITE THAT THE SAID SUM IS GIVEN TO MEET THE COST OF REGI STRATION OF THE COMPROMISE DECREE AND EXPENSES FOR DISMANTLING AND REMOVING THE STRUCTURES STANDING ON THE AREA SURRENDERED TO THE LESSORS. ADMITTEDLY, THE COMPROMISE DECREE WAS REGISTERED AND A SUM OF RS.8, 49,639 WAS INCURRED AS STAMP DUTY AND REGISTRATION EXPENSES IN REGISTER ING THE COMPROMISE DECREE. A FURTHER SUM OF RS.5,81,090 HAD ALSO BEEN INCURRED TO DEMOLISH THE STRUCTURE ON THE AREA SURRENDERED TO THE LESSOR S BY THE ASSESSEE. IT MAY BE TRUE THAT THE COMPROMISE DECREE DOES NOT REF ER TO THE PAYMENT OF ITA NO. 731/BANG/2014 PAGE 18 OF 22 THE SUM OF RS.33 LACS AS A PAYMENT FOR SURRENDER OF LEASEHOLD RIGHTS BY THE ASSESSEE, BUT THE CIRCUMSTANCES OF THE CASE CLEARLY SHOW THAT THE SAID PAYMENT WAS TOWARDS SURRENDER OF LEASEHOLD RIGHTS. THE ONLY MODIFICATION IS THAT THE SAID SUM OF RS.33 LACS WAS TO BE TAKEN BY THE ASSESSEE AFTER INCURRING EXPENSES FOR REGISTRATION OF COMPROMISE D ECREE AND EXPENSES OF DEMOLITION OF STRUCTURES. THE SUM OF RS.33 LAKHS I S THEREFORE RIGHTLY ASSESSABLE TO TAX U/S. 45 OF THE ACT AND NOT UNDER THE HEAD INCOME FROM OTHER SOURCES. THE FACT THAT THE COMPROMISE DECREE DOES NOT REFER TO THE PAYMENT OF RS.33 LACS CANNOT BE THE BASIS TO HOLD T HAT THE SAID SUM IS NOT TOWARDS SURRENDER OF LEASEHOLD RIGHTS. THERE WAS N O NECESSITY FOR THE LESSORS TO PAY THE AFORESAID SUM BUT FOR THE ASSESS EE RELINQUISHING LEASEHOLD RIGHTS OVER PART OF THE PROPERTY IN FAVOU R OF THE LESSORS. WE THEREFORE HOLD THAT THE SUM OF RS.33 LACS WAS PAID IN LIEU OF THE ASSESSEE SURRENDERING HIS LEASEHOLD RIGHTS IN FAVOUR OF THE LESSORS SUBJECT TO CERTAIN DIRECTIONS FOR INCURRING OF CERTAIN EXPENSES BY THE ASSESSEE AND THEREFORE THE SAID RECEIPT BY THE ASSESSEE IS ATTRIBUTABLE TO RELEASE OF LEASEHOLD RIGHTS IN FAVOUR OF THE LESSORS. CONSEQUENTLY THE SUM OF RS.33 LACS IS ASSESSABLE TO TAX UNDER THE HEAD CAPITAL GAINS SU BJECT TO THE COMPUTATION PROVISIONS OF SEC.48 OF THE ACT. WE HO LD ACCORDINGLY. 31. AS FAR AS THE ASSESSMENT OF FMV OF 42 GUNTAS OF LAND & BUILDING WHICH WAS GIVEN ON A PERMANENT LEASE TO THE ASSESSE E UNDER THE COMPROMISE DECREE AS INCOME FROM OTHER SOURCES, WE ARE OF THE VIEW THAT THE ASSESSEE WAS ALREADY HAVING LEASEHOLD INTEREST OVER THE SAID AREA OF ITA NO. 731/BANG/2014 PAGE 19 OF 22 THE LAND AND THE COMPROMISE DECREE ONLY REAFFIRMS T HE SAID POSITION. THE ASSESSEE HAS NOT ACQUIRED ANY RIGHT WHATSOEVER OVER THIS PROPERTY BY VIRTUE OF COMPROMISE DECREE. THEREFORE, CONCLUSION OF THE CIT(APPEALS) TO TAX THE FMV OF THIS PROPERTY IS WITHOUT ANY BASIS. EVEN ASSUMING THAT THE ASSESSEE RECEIVED THE PORTION OF THE PROPERTY WITHO UT ANY CONSIDERATION, THE FMV OF THE SAID PROPERTY CANNOT BE BROUGHT TO T AX AS THERE IS NO PROVISION UNDER THE ACT, UNDER WHICH THE SUM IN QUE STION CAN BE BROUGHT TO TAX. U/S. 56(2)(VII) WHICH WAS INSERTED BY THE FIN ANCE ACT, 2009 W.E.F. 1.10.2009, THE FMV OF IMMOVABLE PROPERTY WHICH IS T RANSFERRED WITHOUT CONSIDERATION, CAN BE BROUGHT TO TAX IN THE HANDS O F TRANSFEREE. EVEN ASSUMING THAT THERE WAS A TRANSFER OF LEASEHOLD RIG HTS IN FAVOUR OF THE ASSESSEE BY VIRTUE OF COMPROMISE DECREE, THE PROVIS IONS OF SECTION 56(2)(VII) ARE NOT APPLICABLE FOR THE ASSESSMENT YE AR 2006-07 AND THEREFORE ASSESSMENT DIRECTED BY THE CIT(APPEALS) CANNOT BE S USTAINED AND THE SAME IS HEREBY DELETED. 32. AS FAR AS THE CLAIM OF EXPENSES OF RS.5,81,090 TOWA RDS EXPENSES ON DISMANTLING STRUCTURES OF LEASEHOLD PROPERTY IS CON CERNED, THERE IS NO DISPUTE THAT THESE EXPENSES WERE ACTUALLY INCURRED FOR DISMANTLING OF STRUCTURE, BUT THE VOUCHERS IN SUPPORT OF INCURRING OF THESE EXPENSES SHOWED THAT DARBAR GINNING FACTORY, HUBLI HAD INCUR RED THESE EXPENSES. SEC.48 OF THE ACT, LAYS DOWN THE MODE OF COMPUTATI ON OF CAPITAL GAINS AND THE RELEVANT PORTION OF THE SAID SECTION READS THUS:- ITA NO. 731/BANG/2014 PAGE 20 OF 22 MODE OF COMPUTATION. SEC. 48. THE INCOME CHARGEABLE UNDER THE HEAD 'CAPITAL GAINS' SHALL BE COMPUTED, BY DEDU CTING FROM THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACC RUING AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET THE FOLLOWING AMOUNTS, NAMELY :- ( I ) EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CO NNECTION WITH SUCH TRANSFER; ( II ) THE COST OF ACQUISITION OF THE ASSET AND THE COST OF ANY IMPROVEMENT THERETO: 33. U/S. 48 OF THE ACT, THERE IS NO REQUIREMENT THA T EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH THE TRANS FER, HAS TO BE INCURRED ONLY BY THE ASSESSEE. SINCE THE FACTUM OF EXPENDIT URE HAVING BEEN INCURRED IS NOT DISPUTED AND SINCE, ADMITTEDLY, THI S WAS AN EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH SUCH TRANSFER, THE DEDUCTION CLAIM, IN OUR VIEW, HAD TO BE ALLOWED. W E HOLD AND DIRECT ACCORDINGLY. WE ALSO FIND MERIT IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT SINCE THIS EXPENDITURE WAS SPECIF ICALLY REQUIRED TO BE INCURRED BY THE ASSESSEE UNDER THE RECEIPT CUM ACKN OWLEDGEMENT DATED 27.6.2006, IT CONSTITUTES A DIVERSION OF INCOME AT SOURCE AND CANNOT BE CONSTRUED AS INCOME THAT ACCRUED TO THE ASSESSEE. 34. AS FAR AS DEDUCTION OF RS.10,19,446 BEING THE I NDEXED COST OF ACQUISITION OF THE STRUCTURE IS CONCERNED, WE ARE O F THE VIEW THAT THE SAID CLAIM FOR DEDUCTION IS UNSUSTAINABLE FOR THE REASON THAT THE SUBJECT MATTER ITA NO. 731/BANG/2014 PAGE 21 OF 22 OF TRANSFER BY ASSESSEE IN FAVOUR OF THE LESSORS DI D NOT INCLUDE ANY STRUCTURE AND THEREFORE THE CLAIM WOULD FAIL TO SAT ISFY THE TEST AS LAID DOWN IN SECTION 48(II) OF THE ACT. WE HOLD AND DIRECT A CCORDINGLY. 35. THE LAST CLAIM OF THE ASSESSEE IS THAT IT SHOUL D BE ALLOWED COST OF ACQUISITION OF LEASEHOLD RIGHTS. IN THIS REGARD, I T IS SEEN THAT WHAT WAS SURRENDERED PURSUANT TO THE COMPROMISE DECREE WAS L EASEHOLD RIGHT OF THE ASSESSEE OVER THE PORTION OF THE PROPERTY. THE CAP ITAL ASSET TRANSFERRED WAS A LEASEHOLD RIGHT. EVIDENCE ON RECORD GOES TO SHOW THAT LEASEHOLD RIGHTS HAVE BEEN ACQUIRED BY THE ASSESSEES PREDECE SSORS IN INTEREST IN THE YEAR 1907 I.E., 07.12.1907 BY PAYING A SUM OF RS.8, 500. THE ASSESSEE WOULD THEREFORE BE ENTITLED TO CLAIM DEDUCTION OF C OST OF ACQUISITION OF LEASEHOLD INTEREST AS ON 1.4.1981. THE ASSESSEE WI LL ALSO BE ENTITLED TO BENEFIT OF INDEXATION OF THIS COST UPTO THE DATE OF TRANSFER OF THE LEASEHOLD RIGHTS. THE ASSESSEE HAS NOT QUANTIFIED THIS SUM A ND THEREFORE, IN OUR VIEW, IT WOULD BE JUST AND PROPER TO DIRECT THE ASS ESSEE TO MAKE A CLAIM BEFORE THE AO IN THIS REGARD. THE AO IS DIRECTED T O EXAMINE SUCH A CLAIM AND ALLOW DEDUCTION IN ACCORDANCE WITH LAW. 36. THE OTHER ISSUES RAISED DO NOT REQUIRE ADJUDICA TION, AS ALREADY STATED. ITA NO. 731/BANG/2014 PAGE 22 OF 22 37. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS PA RTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF AUGUST, 2015. SD/- SD/- ( ABRAHAM P. GEORGE ) ( N.V. VASU DEVAN ) ACCOUNTANT MEMBER JUDICIAL M EMBER BANGALORE, DATED, THE 26 TH AUGUST, 2015. /D S/ COPY TO: 1. APPELLANT 2. RESPONDENTS 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR / SENIOR PRIVATE SECRETARY ITAT, BANGALORE.