M/S. VAISHALI DEVELOPERS & BUILDERS, Bhopal V. THE ITO 1(2), Bhopal

ITA 77/IND/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5972 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-12-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 18-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: ASHISH GOYAL SHRI N D PATWA S
• Keywords: Capital asset
• Section: 234B; 80IB

Judgement Text

M/S. VAISHALI DEVELOPERS& BUILDERS VS. ITO-1(2) BHO PAL / I.T.A. NO.77 /IND/2016/A.Y.:11-12 PAGE 1 OF 8 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .. , .. , % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER M/S. VAISHALI DEVELOPERS & BUILDERS , 240 MP NAGAR ZONE-I BHOPAL 462011 VS. ITO 1(2) BHOPAL APPELLANT RESPONDENT PAN: AACFV 7638 P APPELLANT BY SHRI ASHISH GOYAL& SHRI N .D. PATWA ADVOCATES RESPONDENT BY SHRI MOHD. JAVED, SR. DR DATE OF HEARING 14.12.2016 DATE OF PRONOUNCEMENT 12 .01.2017 O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-I, BHOPAL [HEREINAFTER REFERRED TO AS THE CIT (A)] DATED 27.10.2015. THIS APPEAL PERTAINS TO ASSESSMENT YEAR 2011-12 AS AGAINST APPEAL DECIDED IN RESPECT OF ASSESSMENT ORDER DATED 18.03.2014 PASSED U/S. 1 43(3) OF INCOME TAX ACT, 1961(HEREIN AFTER REFERRED TO AS 'THE ACT) BY THE I TO-1(2) BHOPAL [HEREINAFTER REFERRED TO AS THE AO]. THE ASSESSEE HAS TAKEN FOLLOWING GRO UNDS OF APPEAL:- . . /. I.T.A. NO.77/IND/2016 ( ( / ASSESSMENT YEAR:2011-12 M/S. VAISHALI DEVELOPERS& BUILDERS VS. ITO-1(2) BHO PAL / I.T.A. NO.77 /IND/2016/A.Y.:11-12 PAGE 2 OF 8 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE DECISION OF THE LEARNED CIT (A) IS MATERIALLY INCORRECT, BAD ON FACTS, AND UNSUSTAINABLE IN LAW AND HIS FINDING ARE MATERIALLY INCORRECT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE APPELLANT SUBMITS THAT ITS HOUSING PROJECT FULFILL ALL THE CO NDITIONS LAID DOWN IN SECTION 80IB (10) OF THE I.T. ACT AND, THEREFORE, THE INCOM E FROM SUCH PROJECT IS DEDUCTIBLE UNDER THE SAID PROVISIONS. THE LEARNED C IT (A) ERRED AND NOT JUSTIFIED IN HIS FINDING THAT THE APPELLANT IS NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(10) OF THE I.T. ACT AND, THEREFORE, FINDING OF THE LEARNED CIT(A) BE QUASHED AND EXEMPTION AS CLAIMED U/S. 80IB(10) BE K INDLY BE ALLOWED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT (A) ERRED IN AFFIRMING THE VIEW OF THE AO THAT THE APPELLANT HAD ACTED MERELY AS A CONTRACTOR AFTER SELLING THE PLOT AND N OT AS A DEVELOPER. THEREFORE, THE APPELLANT WAS NOT ELIGIBLE FOR CLAIMING DEDUCTI ON U/S. 80IB (10) ON THE PROFITS CLAIMED FROM THIS PROJECT. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT (A) ERRED IN REJECTING CLAIM U/S. 80IB (10) OF THE I.T. ACT, OF THE APPELLANT MENTIONING THAT THE APPELLANT HAS ACTED AS A CONTRA CTOR AND NOT AS A DEVELOPER AND BUILDER, FOR THE ONLY REASON THAT THE APPELLANT HAD NOT REGISTERED THE SALE DEEDS IN FAVOUR OF THE CUSTOMERS FOR THE FULL VALUE OF THE UNITS AS AGREED AMONG THEM. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT (A) ERRED IN HOLDING THE VIEW THAT IT IS EVIDE NTLY CLEAR THAT THE APPELLANT HAD ACTED MERELY AS A CONTRACTOR AFTER SELLING THE PLOT AND NOT AS DEVELOPER. THEREFORE, THE APPELLANT WAS NOT ELIGIBLE FOR DEDUC TION U/S. 80IB(10) OF THE M/S. VAISHALI DEVELOPERS& BUILDERS VS. ITO-1(2) BHO PAL / I.T.A. NO.77 /IND/2016/A.Y.:11-12 PAGE 3 OF 8 ACT ON THE PROFITS DERIVED FROM THE PROJECT, THERE FORE, DISALLOWED THE DEDUCTION CLAIMED U/S. 80IB(10) OF THE I.T. ACT BY THE APPELLANT. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEVY OF INTEREST U/S. 234B IS UNLAWFUL, HENCE, BE CANCELLED . 2. THE GROUND NO. 1 TO GROUND NO. 5 ARE BASICALLY REL ATES TO CONFIRMING OF THE FINDING OF THE AO THAT THE ASSESSEE HAS MERELY ACTED AS CONTRA CTOR AFTER SELLING PLOT AND NOT AS A DEVELOPER, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(10) ON THE PROFITS CLAIMED FOR THE PROJECTS FOR THE REASONS TH AT THE ASSESSEE HAS NOT REGISTERED THE SALE DEEDS IN FAVOUR OF THE CUSTOMERS FOR THE F ULL VALUE OF UNITS AS AGREED AMONG THEM AND NOT FULFILLED THE CONDITIONS OF SECTION 80 IB(10) OF THE ACT. THEREFORE, THESE ARE BEING CONSIDERED TOGETHER AND DECIDED BY COMMON FINDING FOR THE SAKE OF BREVITY AND CONVENIENCE. 3. SUCCINCTLY, FACTS AS CULLED OUT FROM THE ORDERS OF LOWER AUTHORITIES ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSIN ESS OF DEVELOPMENT OF HOUSING PROJECT. THE ASSESSEE HAS FILED RETURN OF INCOME ON 26.09.2011 DECLARING TOTAL INCOME OF RS. NIL AFTER CLAIMING DEDUCTION OF RS. 1,38,06, 905/- U/S. 80IB(10) OF THE ACT IN RESPECT OF PROJECTS NAMED AS VIJAY NAGAR-I AND VIJA Y NAGAR-II AS TABULATED BELOW. NAME OF THE PROJECT VIJAY NAGAR I VIJAY NAGAR II LOCATION OF THE PROJECT VILLAGE HIRDEPUR DAMOH VILLAGE HIRDEPUR DAMOH AREA 6.024 ACRES COLONY LAYOUT /TNCP APPROVAL NO. 1009/TNCP/05 4259/TNCP/07 DATE OF APPROVAL 22.08.2005 28.03.2007 BUILDING PERMISSION/ GRAM PANCHAYAT NIL NIL M/S. VAISHALI DEVELOPERS& BUILDERS VS. ITO-1(2) BHO PAL / I.T.A. NO.77 /IND/2016/A.Y.:11-12 PAGE 4 OF 8 APPROVAL NO. DATE OF APPROVAL 01.05.2006 30.03.2007 COMMENCING YEAR OF THE PROJECT 2005 - 06 2007 - 08 COMPLETION YEAR OF THE PROJECT 2010 - 11 2011 - 12 DATE OF ISSUE OF COMPLETION CERTIFICATE 30.03.2011 22.03.2012 4. THE AO EXAMINED THE CLAIM OF THE ASSESSEE AND FOUND THAT THE ASSESSEE FIRST SOLD THE PLOTS TO THE CUSTOMERS AND THEREAFTER, EXECUTED CON STRUCTION ON THE PLOTS. THE AO ALSO NOTED THAT ENTRIES IN THE BOOKS OF ACCOUNTS HA D ALSO BEEN MADE ACCORDINGLY AND RECEIPTS HAD BEEN BOOKED IN RESPECT OF SALE OF PLOT S AND CONSTRUCTION RECEIPTS. THEREFORE, THE AO STATED THAT FROM ABOVE IT WAS CLE AR THAT THE ASSESSEE HAD MERELY ACTED AS A CONTRACTOR TO THE CUSTOMERS TO WHOM THE LAND WAS SOLD. THE DEDUCTION U/S. 80IB(10) OF THE ACT IS ALLOWABLE ONLY TO AN UN DERTAKING DEVELOPING AND BUILDING HOUSING PROJECT WHEREAS THE ASSESSEE COULD NOT BE T ERMED AS AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECT AS IT HAD M ERELY ACTED AS A CONTRACTOR TO THE CUSTOMERS TO WHOM LAND WAS INDEPENDENTLY SOLD. THE AO ALSO RELIED ON THE DECISION IN THE CASE OF SKY BUILDERS & DEVELOPERS VS. ITO1 ( 1) BHOPAL [2011 14 TAXMANN.COM 78(INDORE-TRIB) IN SUPPORT OF HIS VIEW. THE AO ALSO NOTICED THAT THE INCOME OF THE ASSESSEE ALSO INCLUDED INTEREST INCOME OF RS. 4,25,6 27/- PERTAINING THE INCOME FROM OTHER SOURCE NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(1 0) OF THE ACT. THE AO ALSO NOTED THAT LD. CIT (A) HAS ALSO DISMISSED THE APPEAL OF T HE ASSESSEE FOR A.Y. 2008-09 AND 2009-10 BY CONSOLIDATED ORDER DTD. 24.10.2012 BY HO LDING THAT THE ASSESSEE HAS MERELY ACTED AS A CONTRACTOR AND WAS THUS, NOT ELIG IBLE FOR DEDUCTION U/S. 80IB (10). ACCORDINGLY, THE AO DISALLOWED THE CLAIM OF DEDUCTI ON OF RS. 1,38,06,910/- U/S. 80IB(10) OF THE ACT. M/S. VAISHALI DEVELOPERS& BUILDERS VS. ITO-1(2) BHO PAL / I.T.A. NO.77 /IND/2016/A.Y.:11-12 PAGE 5 OF 8 5. BEING, AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFOR E THE LD. CIT (A). 6. THE LD. CIT (A) APPEAL NOTED THAT THE IDENTICAL IS SUE WAS ALSO THERE IN A.Y. 2008-09 TO A.Y. 2009-10 AND ALSO THE ISSUE WAS CONSIDERED B Y THE CIT(A) IN A.Y. 20101-11 VIDE ORDER DATED 23.12.2014 WHEREIN THE CIT(A) REFE RRED THE DECISION OF SKY BUILDERS & DEVELOPERS VS. ITO 1(1) BHOPAL [2011] 14 TAXMANN.COM 78 (INDORE-TRB) WHEREIN IT WAS HAD THAT WHERE THE ASSESSEE SOLD PLO TS TO RESPECTIVE CUSTOMERS BY REGISTERING SALE DEED AND THEREAFTER, CONSTRUCTED B UILDING AN AGREED PRICE, IT HAD TO BE CONCLUDED THAT THE ASSESSEE MERELY ACTED AS A CO NTRACTOR AND NOT AS A DEVELOPER AND , THEREFORE, NOT ELIGIBLE FOR DEDUCTION U/S. 80 IB(10). AND ALSO IN VIEW OF THESE FACT THAT NO COMPLETION CERTIFICATE HAD BEEN ISSUED TO ASSESSEE BY LOCAL AUTHORITY, IN VIEW OF SUB-CLAUSE (2) OF EXPLANATION TO SECTION 80 IB (10) ASSESSEE`S CLAIM FOR DEDUCTION IS REJECTED. ACCORDINGLY FOLLOWING THE SA ID DECISIONS OF THE LD. CIT (A) FOR A.Y. 2008-09 TO 2010-11 WHEREIN IT WAS HELD THAT TH E ASSESSEE HAS ACTED MERELY AS CONTRACTOR AFTER SELLING THE PLOTS AND NOT AS DEVEL OPER, HELD THAT THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(10 ) OF THE ACT. ACCORDINGLY CONFIRMED THE DISALLOWANCE MADE UNDER SECTION 80IB (10) OF TH E ACT. 7. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THE LAND ADMEASURING 6.024 HECTARES HAS BEEN PURCHASED AND REGISTERED IN THE N AME OF THE ASSESSEE. NOC FOR MORTGAGED OF LAND, RELEASE OF LAND AND THE ASSESSEE OBTAINED PERMISSION FOR DEVELOPMENT / APPROVAL OF COLONY FROM GRAM PANCHAYA T OBTAINED IN THE NAME OF THE ASSESSEE. THE PROJECT COMPLETION CERTIFICATE WAS AL SO GIVEN IN THE NAME OF THE ASSESSEE. THE ASSESSEE HAS ADOPTED THE MODUS OPERAN DI BY WHICH THE ASSESSEE HAS AGREED TO SALE COMPLETE CONSTRUCTED BUNGALOW / FLAT S WITH FIXED BUILT UP AREA FOR THE CONSIDERATION AGREED. THE ADVERTISEMENT IN NAME OF THE PROJECTS TO ENROLL THE CUSTOMERS IN THE PROJECT AND RECEIVED THE BOOKING A MOUNT AGAINST THE SALE OF BUNGALOWS/ FLATS WITH DEFINITE BUILT UP AREA. IN NO NE OF THE CASE, THE ASSESSEE WAS M/S. VAISHALI DEVELOPERS& BUILDERS VS. ITO-1(2) BHO PAL / I.T.A. NO.77 /IND/2016/A.Y.:11-12 PAGE 6 OF 8 GIVEN FIXED PRICE FOR THE EXECUTING WORK. A WORK CO NTRACT WILL BE AWARDED ON A FIXED CONSIDERATION FOR DOING HIS WORK. THUS, THE LEARNED COUNSEL CONTENDED THAT THE ASSESSEE HAS NOT ONLY DONE CONSTRUCTION OF HOUSES B UT ALSO DONE THE CONSTRUCTION OF ROADS, TOOK ELECTRICITY CONNECTION , TOOK HELP OF A RCHITECT , OBTAINED WATER CONNECTION AND CARRY OUT ALL THE ACTIVITIES OF PROJECTS. THERE FORE, THE ASSESSEE IS A DEVELOPER AND BUILDER HENCE, ENTITLED TO DEDUCTION U/S. 80IB (10) OF THE ACT. THE LEARNED COUNSEL SUBMITTED THAT ON SIMILAR FACTS, THE DEDUCTION U/S. 80IB(10) WAS ALLOWED BY THE INDORE BENCH OF TRIBUNAL IN THE CASE OF MAHENDRA BU ILDERS & DEVELOPERS IN I.T.A. NO. 371,372/IND/2012 DTD. 30.07.2015 WHICH IS A DEC ISION AFTER THE SKY BUILDERS & DEVELOPERS VS. ITO 1(1) BHOPAL [2011] 14 TAXMANN.CO M 78 (INDORE-TRB). THEREFORE, IT WAS ARGUED THAT THE ASSESSEE SHOULD BE TREATED AS D EVELOPER AND CONTRACTOR OF THE PROJECT IN THE LIGHT OF DECISION IN THE CASE OF CIT VS. AMLATAS ASSOCIATES [2011] 75 TAXMANN.COM 183(GUJ) FOLLOWING JUDGEMENT IN THE CAS E OF CIT VS. RADHE DEVELOPERS 341 ITR 403 (GUJ) WHEREIN IT WAS HELD THAT THE ASSES SEE HAD, IN PART PERFORMANCE OF THE AGREEMENT TO SELL THE LAND IN QUESTION , WAS GI VEN POSSESSION THEREOF AND HAD ALSO CARRIED OUT THE CONSTRUCTION WORK FOR DEVELOPMENT O F HOUSING PROJECT. THE LEARNED COUNSEL SUBMITTED THAT THE COMBINED READING OF SECT ION 2(47) (V) AND SECTION 53A OF THE TRANSFER OF PROPERTY ACT WOULD LEAD TO A SITUAT ION WHERE THE LAND FOR THE PURPOSE OF INCOME TAX ACT,1961 DEEMED TO HAVE BEEN TRANSFER RED TO THE ASSESSEE. IN THAT VIEW OF MATTER, FOR THE PURPOSE OF INCOME DERIVED FROM S UCH PROPERTY, THE ASSESSEE WOULD BE OWNER OF THE LAND FOR THE PURPOSE OF SAID ACT. I T IS EQUALLY TRUE THAT SUCH TITLE WOULD PASS ONLY UPON EXECUTION OF DULY REGISTERED S ALE DEED. HOWEVER, FOR THE LIMITED PURPOSE OF THESE PROCEEDINGS ONE IS NOT CON CERNED WITH THE QUESTION OF PASSING OF THE TITLE OF THE PROPERTY BUT ONLY EXAMI NING WHETHER FOR THE PURPOSE OF BENEFIT UNDER SECTION 80IB(10), THE ASSESSEE COULD BE CONSIDERED AS THE OWNER OF THE LAND IN QUESTION. FOR THE LIMITED PURPOSE OF DEDUCT ION U/S. 80IB (10), THE ASSESSEE M/S. VAISHALI DEVELOPERS& BUILDERS VS. ITO-1(2) BHO PAL / I.T.A. NO.77 /IND/2016/A.Y.:11-12 PAGE 7 OF 8 HAD SATISFIED THE CONDITION OF OWNERSHIP ALSO EVE N IF IT WAS NECESSARY. THE TRIBUNAL COMMITTED NO ERROR IN HOLDING THAT THE ASSESSEE WAS ENTITLED TO THE BENEFIT U/S. 80IB (10) EVEN WHERE THE TITLE OF THE LANDS HAD NOT PASS ED ON TO THE ASSESSEE AND IN SOME CASES, THE DEVELOPMENT PERMISSION MAY ALSO HAVE BEE N OBTAINED IN THE NAME OF ORIGINAL OWNERS. IT IS NOT EVEN THE CASE OF REVENUE THAT THE OTHER CONDITIONS OF SECTION 80IB WERE NOT JUSTIFIED. THE LEARNED COUNSE L ALSO SUBMITTED THAT THE ASSESSEE HAS BEEN CLAIMING DEDUCTION U/S. 80IB (10) FROM A.Y . 2003-04 AND SAME WAS ALLOWED ONWARDS. THE CLAIM WAS DENIED FOR THE FIRST TIME FROM A.Y. 2007-08 AND THEREAFTER. THE ITAT IN A.Y. 2007-08 TO 2010-11 RES TORED THE MATTER TO THE FILE OF THE AO, SINCE DOCUMENTS OF OWNERSHIP OF LAND, IN WHOSE NAME APPROVAL HAS BEEN OBTAINED WERE NOT BEFORE THE AO /CIT (A) AND TRIBUN AL. HOWEVER, IN PRESENT CASE ALL THE DOCUMENTS WERE AVAILABLE BEFORE THE AO AS WELL AS CIT(A), BUT THEY HAVE BRUSH ASIDE THE SAME BY HOLDING THAT THE CASE IS COVERED BY DECISION OF SKY BUILDERS & DEVELOPERS VS. ITO 1(1) BHOPAL [2011] 14 TAXMANN.COM 78 (INDORE-TRB). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PA RTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT AS PER T HE CLAIM OF LEARNED COUNSEL, THE DETAILS OF OWNERSHIP OF LAND PURCHASED, THE APPROVA L OF SITE PLAN AND COLONY OF OBTAINED IN THE NAME OF THE ASSESSEE, THE PERMISSI ON FOR DEVELOPMENT OF RESIDENTIAL PROJECTS WAS IN THE NAME OF THE ASSESSE E, THE COMPLETION CERTIFICATE ISSUED BY THE CONCERNED AUTHORITIES WAS AVAILABLE B EFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) AND ALSO BEFORE THE ASSESSING OFFICER. HOWEVER, THE LOWER AUTHORITIES BRUSH ASIDE THESE EV IDENCES. THE LEARNED CIT(A) CHOOSE TO FOLLOW THE DECISION OF SKY BUILDERS & DEV ELOPERS VS. ITO 1(1) BHOPAL [2011] 14 TAXMANN.COM 78 (INDORE-TRB) AND CONFIRM T HE SAME BY FOLLOWING THE FINDING AS GIVEN IN EARLIER YEARS. WE ARE ALSO AWAR E TOLD THAT THE SET ASIDE ASSESSMENTS HAVE BEEN REFRAMED BY THE AO BY REPEATI NG THE DISALLOWANCE U/S. M/S. VAISHALI DEVELOPERS& BUILDERS VS. ITO-1(2) BHO PAL / I.T.A. NO.77 /IND/2016/A.Y.:11-12 PAGE 8 OF 8 80IB(10) OF THE ACT. THE ASSESSEE HAS FILED AN APPE AL, WHICH IS PENDING BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) FOR THE DECISI ON. SINCE THE FACTS INVOLVED IN THIS ASSESSMENT YEAR ARE SAME AS IN THE PRECEDIN G ASSESSMENT YEARS 2007-08 TO 2010-11 AND SAME ARE PENDING BEFORE THAT LOWER A UTHORITIES, THEREFORE, IT WOULD BE JUSTIFIABLE TO RESTORE THE MATTER TO THE LD. CIT (A) SINCE THE APPEAL FOR PRECEDING ASSESSMENT YEARS ARE PENDING BEFORE HIM. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE DEEM IT FIT THAT APPEAL F OR THIS YEAR IS ALSO RESTORED TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS) FO R THE DECISION AFTER CONSIDERING ALL THE EVIDENCES AS FILED BY THE ASSES SEE BEFORE HIM. NEVERTHELESS, WE ALSO DIRECT THE LD. CIT (A) TO CONSIDER ALL RELEVAN T FACTS AND NECESSARY EVIDENCES AS FILED BY THE ASSESSEE AND AFTER ANALYZING THE EVIDE NCE IN THE FORM OF OWNERSHIP OF LAND PURCHASED, AFTER ALL TAKEN IN THE NAME OF THE ASSESSEE, COMPLETION CERTIFICATE OBTAINED BY THE ASSESSEE FROM LOCAL AUTHORITY AND D ECIDED ON APPEAL ON MERITS. THE ASSESSEE IS ALLOWED TO PRODUCE ANY FURTHER EVID ENCE IN SUPPORT OF HIS CLAIM BEFORE THE LEARNED CIT (A). IN VIEW OF THAT MATTER, THE APPEAL FOR THIS YEAR IS ALSO SET ASIDE THE FILE OF THE CIT(A) FOR FRESH ADJUDICA TION. THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. 10. THE ORDER PRONOUNCED IN THE OPEN COURT ON 12.01.2 017 (D.T.GARASIA) JUDICIAL MEMBER (O.P.MEENA) ACCOUNTANT MEMBER DATED : 12 TH JANUARY 2016.