ITO 17(3)(5), MUMBAI V. VARSHA PRITAM REWARI, MUMBAI

ITA 897/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2116 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 09-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DHIRENDRA SHAH
• Keywords: Earning of tax free income; Tangible material; Tax effect; Reason to believe; Reassessment proceedings
• Section: 143(3); 147; 148; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER ITA NO. 897/MUM/2015 (ASSESSMENT YEAR: 2011-12) INCOME TAX OFFICER 17(3)(5) VS. SMT. VARSHA PRITAM REWARI ROOM NO. 137, 1 ST FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 FLAT NO. 25, CCI CHAMBERS DINSHAW VACHHA ROAD CHURCHGATE, MUMBAI 400020 PAN AADPR9676G APPELLANT RESPONDENT CO NO. 130/MUM/2016 (ASSESSMENT YEAR: 2011-12) SMT. VARSHA PRITAM REWARI VS. INCOME TAX OFFICER 17(3)(5) FLAT NO. 25, CCI CHAMBERS DINSHAW VACHHA ROAD CHURCHGATE, MUMBAI 400020 ROOM NO. 137, 1 ST FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 PAN AADPR9676G CROSS OBJECTOR APPELLANT IN APPEAL APPELLANT BY: SHRI RAVINDER SINDHU RESPONDENT BY: SHRI DHIRENDRA SHAH DATE OF HEARING: 27.10.2016 DATE OF PRONOUNCEMENT: 04.11.2016 O R D E R PER JASON P. BOAZ, A.M. THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDE R OF THE CIT(A)-23, MUMBAI DATED 12.11.2014 FOR A.Y. 2011-12. THE ASSES SEE HAS ALSO PREFERRED A CROSS OBJECTION (CO) IN SUPPORT OF TH E IMPUGNED ORDER OF THE CIT(A). 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER: - 2.1 THE ASSESSEE FILED A RETURN OF INCOME FOR A.Y. 2011-12 ON 28.09.2011 DECLARING TOTAL INCOME OF ` 72,490/-. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (I N SHORT 'THE ACT'). THE CASE WAS SUBSEQUENTLY REOPENED AND THE ASSESSING OF FICER (AO), AFTER ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 2 RECORDING REASONS IN THIS REGARD, ISSUED NOTICE UND ER SECTION 148 OF THE ACT ON 26.03.2013. IN RESPONSE THERETO, THE ASSESSE E FILED A RETURN OF INCOME ON 10.04.2013 DECLARING INCOME AT ` 72,490/-, AS ORIGINALLY RETURNED. THE AO PROVIDED COPY OF THE REASONS RECOR DED FOR REOPENING OF THE ASSESSMENT TO THE ASSESSEE AND AFTER CONSIDERIN G THE ASSESSEES OBJECTIONS THEREON, DISPOSED OFF THE SAME BY ORDER DATED 25.10.2013. THE ASSESSMENT WAS COMPLETED VIDE ORDER DATED 31.02.201 4 WHEREBY THE ASSESSEES INCOME WAS DETERMINED AT ` 4,63,29,530/-. 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT DATED 31.0 3.2014 FOR A.Y. 2011-12, THE ASSESSEE PREFERRED AN APPEAL BEFORE TH E CIT(A)-23, MUMBAI. THE LEARNED CIT(A) ALLOWED THE ASSESSEES APPEAL VI DE THE IMPUGNED ORDER DATED 12.11.2014. REVENUES APPEAL IN ITA NO. 897/MUM/2015 FOR A.Y. 2 011-12 3. AGGRIEVED BY THE ORDER OF THE CIT(A)-23, MUMBAI DAT ED 12.11.2014 FOR A.Y. 2011-12 REVENUE HAS PREFERRED THIS APPEAL RAISING THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN N ULLIFYING THE NOTICE U/S. 148 OF THE INCOME TAX ACT WHICH IS ISSU ED AFTER RECORDING VALID REASONS THAT THE ASSESSEE HAS NOT T RULY AND CORRECTLY DECLARED HERE INCOME. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN D ELETING THE ADDITION OF RS.4,61,89,320/- WHICH HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LONG TERM CAPITAL G AINS CALCULATED BY THE ASSESSING OFFICER TAKING INTO CONSIDERATION THE FACTS AND DOCUMENTS SUBMITTED BY THE ASSESSEE FOR THE DETAILE D REASONS MENTIONED IN THE ASSESSMENT ORDER. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CI T(A) ON THE ABOVE GROUND(S) BE SET ASIDE AND THAT OF THE ASSESSING OF FICER RESTORED. 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 4. GROUND NO. 1 ASSUMPTION OF JURISDICTION UNDER SEC TION 147 OF THE ACT 4.1 IN THIS GROUND, REVENUE ASSAILS THE IMPUGNED O RDER OF THE LEARNED CIT(A) IN HOLDING THAT THE ASSUMPTION OF JURISDICTI ON UNDER SECTION 147 OF THE ACT WAS BAD IN LAW AS IT WAS BASED ON BELIEF TH AT WAS FACTUALLY ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 3 INCORRECT AND CONSEQUENTLY THAT THE NOTICE ISSUED U NDER SECTION 148 OF THE ACT WAS ALSO BAD IN LAW. IT IS CONTENDED THAT THE N OTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ONLY AFTER RECORDING OF VALID REASONS BY THE AO THAT THE ASSESSEE HAD NOT TRULY AND CORRECTLY DECLARED H ER INCOME. THE LEARNED D.R. FOR REVENUE WAS HEARD IN SUPPORT OF THE GROUND AND PLACED RELIANCE ON THE ORDER OF THE AO. 4.2 PER CONTRA, THE LEARNED A.R. OF THE ASSESSEE SU PPORTED THE IMPUGNED ORDER OF THE LEARNED CIT(A) IN HOLDING THAT THE PRO CEEDINGS INITIATED UNDER SECTION 147 OF THE ACT TO BE BAD IN LAW AS THE BASI S FOR ASSUMPTION OF JURISDICTION UNDER SECTION 147 OF THE ACT I.E. THE REASONS RECORDED BY THE AO ON THE BASIS OF WHICH HE FORMED THE BELIEF THAT INCOME OF THE ASSESSEE FOR A.Y. 2011-12 IS NOT TENABLE AS IT IS FACTUALLY NOT CORRECT AND NOT BASED ON ANY TANGIBLE MATERIAL. IT IS CONTENDED THAT IT W AS IN VIEW OF THE ABOVE FINDING THAT THE LEARNED CIT(A) HELD THAT THE NOTIC E ISSUED UNDER SECTION 148 OF THE ACT WAS ALSO BAD IN LAW AND CONSEQUENTLY THAT THE ORDER OF ASSESSMENT FOR A.Y. 2011-12 WAS FRAMED ON THE BASIS OF INCORRECT ASSUMPTION OF JURISDICTION. IT WAS PRAYED THAT IN V IEW OF THE ABOVE, THE FINDING OF THE LEARNED CIT(A) IN THE IMPUGNED ORDER ON THE ISSUE THAT THE AOS ASSUMPTION OF JURISDICTION UNDER SECTION 147 O F THE ACT IS BAD IN LAW IS TO BE UPHELD. 4.3.1 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD. WE FIND THAT THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE RE ASONS RECORDED BY THE AO FOR INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE ACT AND THE MATERIAL ON RECORD, HAS HELD THE ASSUMPTION OF JURI SDICTION OF THE AO UNDER SECTION 147 OF THE ACT TO BE BAD IN LAW AND C ONSEQUENTLY HELD THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT AND THE RESULTANT ORDER OF ASSESSMENT UNDER SECTION 143(3) R.W.S 147 OF THE AC T DATED 31.1.2014 TO BE BAD IN LAW; HOLDING AS UNDER AT PARAS 2.1.2 TO 2 .1.14 OF THE IMPUGNED ORDER: - 2.1.2 I HAVE CONSIDERED THE FACTS OF THE CASE AND T HE SUBMISSIONS MADE BY THE ASSESSEE. I HAVE ALSO PERUSED THE REASO NS RECORDED BY THE ASSESSING OFFICER FOR FORMING THE BELIEF THAT I NCOME OF THE ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 4 ASSESSEE HAS ESCAPED ASSESSMENT U/S 147 OF THE I.T. ACT, 1961. THE SAME IS REPRODUCED HEREINBELOW:- 'THE ASSESSEE, SMT. VARSHA REWARI, FILED RETURN FOR ASST. YEAR 2011-12 BY E-FILING, ACKNOWLEDGEMENT NO.296006771280911, ON 28.09.2011 DECLARING TOTAL I NCOME OF RS.72,4901- ON VERIFICATION OF THE RETURN OF INCOME AND COMPUTATION OF THE INCOME FOR THE ABOVE YEAR REVEALED THAT THE ASS ESSEE HAS CLAIMED SET OFF OF CARRY FORWARD LONG TERM CAPITAL LOSS ON SALE OF EQUITY SHARES ON WHICH STT WAS PAID. THE ASSESSE E HAS CLAIMED SET OFF OF BROUGHT FORWARD LONG TERM CAPITAL LOSS OF A.Y.2010-11 OF RS.11,95,3601- AGAINST THE LONG TERM CAPITAL GAIN ON SALE OF IMMOVABLE PROPERTY BEING LAND AT VI LLAGE: BAKUM. LONG TERM CAPITAL GAIN LOSS ON SALE OF EQUIT Y SHARES WHERE STT HAS BEEN PAID IS EXCEPT INCOME/LOSS UNDER SECTION 10 OF THE INCOME TAX ACT. THEREFORE THE ASSESSEE WA S NOT ENTITLED TO SET OFF LOSS OF RS. 11,95,360/- AGAINST THE LONG TERM CAPITAL GAIN ON SALE OF LAND WHICH IS NOT AN EXEMPT INCOME. FURTHER THE ASSESSEE HAS NOT OFFERED THE LONG TERM CAPITAL GAIN FROM SALE OF LAND AT VILLAGE BAKUM (16512+1651 3). IN THE WORKING OF LONG TERM GAIN ON SALE OF LAND AT VILLAG E DHOKALI THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN OF RS.8,69,20,652/- AND CLAIMED SET OFF BROUGHT FORWAR D LONG TERM CAPITAL LOSS OF RS. 11,95,360/-. NO LONG TERM CAPITAL GAIN ON SALE OF LAND IN HER OWN NAME AT VILLAGE BAK UM HAS SHOWN IN THE WORKING OF LONG TERM CAPITAL GAIN'. IN VIEW OF THE ABOVE, I HAVE REASONS TO BELIEF THAT INCOME OF MORE THAN RS. ONE LAKH HAS ESCAPED ASSESSMENT WITHI N THE MEANING OF CLAUSE (B) TO EXPLANATION 2 TO SECTION 1 47 OF THE INCOME TAX ACT.' 2.1.3 FROM THE ABOVE REASONS RECORDED, IT CAN BE OB SERVED THAT THE TWO ISSUES ON WHICH THE ASSESSMENT HAS BEEN RE-OPENED ARE AS FOLLOWS:- I) THE ASSESSEE HAS CLAIMED SET OFF OF CARRY FORWA RD LONG TERM CAPITAL LOSS ON SALE OF EQUITY SHARES ON WHICH SIT WAS PAID AGAINST THE LONG TERM CAPITAL GAIN OF RS.8,69,20,65 2/-. THIS, IN THE OPINION OF THE ASSESSING OFFICER, COULD NOT BE DONE AS THE LONG TERM CAPITAL LOSS ON THE SALE OF EQUITY SHARES WHICH IS EXEMPT COULD NOT BE SET - OFF AGAINST THE LONG TERM CAPITAL GAINS EARNED DURING THE YEAR. II) THE ASSESSEE HAD NOT OFFERED THE LONG TERM CAPI TAL GAIN FROM SALE OF LAND AT VILLAGE BAKUM. 2.1.4 AS REGARDS THE FIRST REASON FOR RE-OPENING TH E ASSESSMENT, THE ASSESSEE HAS POINTED OUT THAT THE SAID REASON IS CO NTRARY TO THE FACTS AND EVIDENCE ON RECORD. IT HAS BEEN POINTED OUT BY HER THAT IN THE E- FILED RETURN OF INCOME, IN COLUMN 3 OF PART B OF SC HEDULE CG TO THE ITR- ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 5 4 RELATING TO CAPITAL GAINS, FULL VALUE OF CONSIDER ATION HAS BEEN SHOWN AT RS.9,80,75,100/- FROM WHICH THE COST OF ACQUISIT ION AFTER INDEXATION OF RS.1,04,54,448/- AND EXPENDITURE ON T RANSFER HAS BEEN DEDUCTED LEADING TO THE BALANCE OF RS.8,69,20,652/- . ON THIS, DEDUCTION U/S 54 F OF THE ACT HAS BEEN CLAIMED AT R S.9,74,00,000/-. AS A RESULT THE NET BALANCE OF LONG TERM CAPITAL GA INS HAS BEEN DISCLOSED AT ZERO IN COLUMN 3E OF PART B OF SCHEDUL E CG RELATING TO LONG TERM CAPITAL GAINS. THIS FIGURE OF ZERO IN-RES PECT OF LONG TERM CAPITAL GAINS HAS BEEN TAKEN IN PART B - TI COMPUTA TION OF TOTAL INCOME IN COLUMN 4B. IT HAS BEEN FURTHER POINTED OU T THAT IN SCHEDULE CFL - DETAILS OF LOSSES TO BE CARRIED FORWARD TO FU TURE YEARS, THE LONG TERM CAPITAL LOSS OF RS.11,95,360/- FOR THE A.Y. 20 10-11 IS SHOWN TO BE CARRIED FORWARD. HENCE, THE FINDING OF THE ASSES SING OFFICER THAT THE ASSESSEE HAS SET OFF LONG TERM CAPITAL LOSS REL ATING TO SHARES OF RS.11,95,360/- AGAINST THE LONG TERM CAPITAL GAINS ON THE SALE OF THE PROPERTY IN THE A.Y. 2011-12 ON THE BASIS OF WHICH HE HAS FORMED THE BELIEF THAT THE INCOME OF THE ASSESSEE HAS FOR THE YEAR HAS ESCAPED ASSESSMENT IS FACTUALLY NOT CORRECT. THEREFORE, THE REASON GIVEN BY HIM FOR FORMING THE BELIEF IS NOT TENABLE. 2.1.5 I HAVE PERUSED THE ABOVE SUBMISSIONS OF THE A SSESSEE AS WELL AS THE RETURN FOR THE A.Y. 2011-12 FILED BY HER WHI CH HAS BEEN FURNISHED BY HER IN THE COURSE OF THE APPELLATE PRO CEEDINGS AND WHICH IS PLACED AT PAGE NUMBERS 22 TO 41 OF THE PAPER BOO K. ON PERUSAL OF THE SAME, THE CONTENTION OF THE ASSESSEE IS FOUND T O BE CORRECT. IT IS SEEN THAT THE LONG TERM CAPITAL LOSS OF RS.11,95,36 0/- OF THE A.Y. 2010-11 HAS NOT BEEN SET OFF BY THE ASSESSEE IN THE RETURN OF INCOME FILED BY HER. RATHER, THE SAID LOSS OF RS.11,95,360 /- HAS BEEN CARRIED FORWARD TO FUTURE YEARS. HENCE, THE FOUNDATION FOR FORMING THE BELIEF BY THE ASSESSING OFFICER THAT THE INCOME OF THE ASS ESSEE HAS ESCAPED ASSESSMENT FOR THE REASON THAT THE ASSESSEE HAS WRO NGLY CLAIMED SET OFF OF BROUGHT FORWARD LONG TERM CAPITAL LOSS AGAIN ST THE CURRENT YEAR'S LONG TERM CAPITAL GAIN IS NON-EXISTENT. THE REASON GIVEN BY THE A.O. FOR FORMING THE BELIEF THAT INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT BEING FACTUALLY INCORRECT, THE RE-OPENIN G OF THE ASSESSMENT ON THIS REASON CANNOT BE HELD TO BE AS P ER LAW OR VALID. 2.1.6 EVEN OTHERWISE, EVEN IF THE ASSESSEE HAD WRON GLY CLAIMED THE SET OFF OF RS.11,95,360/- FROM THE LONG TERM CAPITA L GAINS DISCLOSED IN THE RETURN OF INCOME, AND IF THIS SET OFF WAS NOT T O BE ALLOWED, THE MISTAKE OR ERROR OF SETTING OFF THE LOSS WOULD BE T AX NEUTRAL SINCE, IN THAT CASE ALSO, THE AMOUNT DEPOSITED IN CAPITAL GAI NS DEPOSIT SCHEME OF RS.9,74,00,000/- WOULD HAVE COVERED THE INCREASE IN THE LONG TERM CAPITAL GAINS. NO RE-OPENING IS PERMISSIBLE BY WAY OF TAKING SHELTER OF ANY REASON RECORDED BY THE ASSESSING OFFICER IF THE TAX EFFECT OF THAT PARTICULAR REASON IS NIL. IT HAS BEEN HELD BY THE H ON'BLE MUMBAI TRIBUNAL IN THE CASE OF GIVAUDAN FLAVOURS INDIA PVT . LTD. VS. DY.C1T IN 1TA NO.2672/MUM/09 DATED 07.03.2011 THAT WHERE T HERE IS A MISTAKE WHICH IS TAX NEUTRAL WHILE COMPUTING THE IN COME, NO REASSESSMENT CAN BE INITIATED AS THE BASIC CONDITIO N OF INCOME ESCAPING ASSESSMENT IS NOT SATISFIED. THE ITAT HELD THAT THE FINDING ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 6 OF INCOME HAVING ESCAPED ASSESSMENT IS A PRECONDITI ON FOR REOPENING THE ASSESSMENT. 2.1.7 AS REGARDS THE SECOND REASON GIVEN BY THE ASS ESSING OFFICER FOR RE-OPENING THE ASSESSMENT, ALL THAT THE ASSESSING O FFICER HAS RECORDED IS THAT THE ASSESSEE HAS NOT OFFERED THE L ONG TERM CAPITAL GAIN FROM SALE OF LAND AT VILLAGE BALKUM (16512 AND 16513). IT HAS BEEN RECORDED BY THE ASSESSING OFFICER THAT IN THE- WORKING OF LONG TERM CAPITAL GAIN AT VILLAGE DHOKALI, THE ASSESSEE HAD LONG TERM CAPITAL GAIN OF RS.8,69,20,652/- AND CLAIMED SET OF F OF BROUGHT FORWARD LONG TERM CAPITAL TOSS OF RS.11,95,360/- AN D THAT NO LONG TERM CAPITAL GAINS ON SALE OF LAND IN HER OWN NAME AT VILLAGE BALKUM WAS SHOWN IN THE WORKING OF LONG TERM CAPITAL GAIN. 2.1.8 THE ABOVE OBSERVATION OF THE ASSESSING OFFICE R IS NOT BASED ON ANY TANGIBLE MATERIAL IN AS MUCH AS THE REASON FOR REACHING THE ABOVE CONCLUSION AND SOURCE FOR THE 'ABOVE CONCLUSION HAS NOT BEEN SPELT OUT. IT HAS ALSO NOT BEEN SPELT OUT BY HIM AS TO WH AT WAS THE INFORMATION IN HIS POSSESSION WHICH GAVE HIM THE RE ASON TO BELIEVE THAT LONG TERM CAPITAL GAIN ON SALE OF LAND IN HER OWN NAME IN VILLAGE BALKUM WAS NOT SHOWN BY THE ASSESSEE IN THE WORKING OF LONG TERM CAPITAL GAINS. IN FACT, IN THE SECOND PARA OF THE R EASONS RECORDED, THE ASSESSING OFFICER HAS HIMSELF STATED THAT 'THE ASSESSEE HAS CLAIMED SET OFF OF BROUGHT FORWARD LONG TERM CAPITAL LOSS OF A. Y. 2010-11 OF RS.11,95,360/- AGAINST LONG TERM GAIN ON SALE OF IM MOVEABLE PROPERTY BEING LAND AT VILLAGE BALKUM.' HENCE, THE ABOVE RECORDING BY THE A.O. CLEARLY SHOWS THAT THE ASSESSING OFFICER WAS AWARE OF THE FACT THAT LONG TERM CAPITAL GAIN ON SALE OF IMMOVABLE PROPERT Y IN VILLAGE BALKUM HAD BEEN DECLARED BY ASSESSEE. THERE IS, THE REFORE, CONTRADICTION IN THE STATEMENTS OF THE ASSESSING OF FICER IN THE REASONS RECORDED BY HIM FOR ENTERTAINING THE BELIEF THAT IN COME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. THERE IS NO MATERIAL BROUGH T ON RECORD IN THE REASONS RECORDED TO EVEN SUGGEST THAT THE ASSES SEE HAD NOT SHOWN LONG TERM CAPITAL GAIN ON SALE OF ANY LAND IN HER OWN NAME AT VILLAGE BALKUM IN THE RETURN OF INCOME FILED BY HER FOR THE A.Y. 2011- 12. RATHER, THERE IS ADMISSION ON PART OF THE ASSES SING OFFICER IN THE REASONS RECORDED ITSELF THAT LONG TERM CAPITAL GAIN S ON SALE OF IMMOVABLE PROPERTY IN VILLAGE BALKUM HAS BEEN DISCL OSED BY THE ASSESSEE IN THE RETURN OF INCOME. IN FACT, IN THE D ISPOSAL OF OBJECTIONS DATED 25/10/2013, THE ASSESSING OFFICER HAS CLEARLY RECORDED IN PARA 5 THAT IN COURSE OF THE ASSESSMENT PROCEEDINGS FOR THE A.Y. 2010-11, THE ASSESSEE HAD FURNISHED COMPUTATION OF INCOME AND WORKING OF LONG TERM CAPITAL GAINS FOR A.Y. 2011-12 . THE WORKING OF CAPITAL GAINS HAS BEEN REPRODUCED IN THE LETTER OF THE A.O. DATED 25/10/2013 DISPOSING THE OBJECTIONS OF THE ASSESSEE WHICH SHOWS THAT THE WORKING OF CAPITAL GAINS IS ONLY WITH RESP ECT TO LAND AT VILLAGE BALKUM. FROM THIS, IT IS CLEAR THAT THE A.O. WAS AW ARE THAT CAPITAL GAINS HAS BEEN OFFERED BY THE ASSESSEE ON SALE OF L AND AT VILLAGE BALKUM. HENCE, TO ENTERTAIN THE BELIEF THAT THE ASS ESSEE HAD NOT DISCLOSED CAPITAL GAINS ON SALE OF LAND AT BALKUM W OULD NOT BE CORRECT IN THE ABSENCE OF THE A.O. BRINGING ON RECORD ANY M ATERIAL WHICH ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 7 WOULD SHOW THAT THE ASSESSEE HAD SOLD ANY OTHER LAN D IN VILLAGE BALKUM WHICH HAD NOT BEEN DISCLOSED IN HER RETURN. FROM THE DEED OF CONVEYANCE OF THE IMPUGNED PROPERTY, IT IS SEEN FRO M CLAUSE 23 THAT VIDE MUTATION ENTRY NO. 3 DATED 04.12.1999 AND PURS UANT TO THE LETTER DATED 09.11.1990 ISSUED BY REVENUE AND FORES T DEPARTMENT BEARING NO.1069/32810, THE SURVEY NO.165 OF VILLAGE BALKTIM (WHERE THE IMMOVABLE PROPERTY IN QUESTION WAS LOCATED) WER E TRANSFERRED TO VILLAGE DHOKALI AND GIVEN NEW SURVEY NUMBERS, VIZ, NEW SURVEY NUMBERS 29/1A, 29/18, 29/2 AND 29/3 OF VILLAGE DHOK ALI, TALUKA THANE. HENCE, THE PROPERTY WHICH WAS SOLD CONTINUED TO BE THE SAME AND THE ASSESSEE DID NOT SELL SEPARATE PROPERTIES I N VILLAGE DHOKALI AND VILLAGE BALKUM. FROM THE LETTER OR THE A.O. DIS POSING THE OBJECTIONS OF THE ASSESSEE, IT CAN BE SEEN THAT THE OBJECTION OF THE A.O. ON PERUSAL OF THE RETURN FILED BY THE ASSESSEE WAS THAT THE DETAILS OF SATE OF LAND AND CERTAIN OTHER DETAILS WHICH HE WOU LD HAVE LIKED TO BE IN THE RETURN OF INCOME WERE NOT MENTIONED. 2.1.9 FROM THE ABOVE FACTS, IT IS CLEAR THAT THE RE ASONS RECORDED BY THE ASSESSING OFFICER WERE NOT BASED ON ANY TANGIBLE MA TERIAL AND THESE WERE BASED ONLY ON HIS SUSPICION. THE REASONS FOR F ORMING THE BELIEF THAT INCOME OF THE ASSESSEE HAD ESCAPED ASSESSMENT WERE BASED ON INCORRECT FACTS AND NOT ON ANY TANGIBLE MATERIAL. T HE ASSESSING OFFICER HAS NOT ESTABLISHED THE LINK BETWEEN THE REASONS AN D FORMATIONS OF BELIEF. FROM THE FACTS ON RECORD, IT IS APPARENT TH AT THE RE-OPENING IS BASED ON 'REASON TO SUSPECT' RATHER THAN ON 'REASON TO BELIEVE'. IN THIS CASE NO SCRUTINY ASSESSMENT U/S 143(3) OF THE I.T. ACT, 1961 WAS MADE. HOWEVER, EVEN THEN, THERE MUST BE 'REASON TO BELIEVE', I.E., 'CAUSE OR JUSTIFICATION' THAT INCOME HAD ESCAPED AS SESSMENT AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF ASST.CI T VS. RAJESH JHAVERI STOCK BROKERS (P.) LTD 291 ITR 500 (SC). TH E HON'BLE COURT FURTHER HELD THAT THE ASSESSING OFFICER IS FREE TO INITIATE PROCEEDINGS U/S 147 SO LONG AS THE INGREDIENTS OF THE SAID SECT ION ARE FULFILLED. 2.1.10 IN THE CASE OF THE COMMISSIONER OF INCOME TA X-V VS ORIENT CRAFT LTD. ON 12 DECEMBER, 2012 ITA NO.555/2012, TH E HON'BLE DELHI HIGH COURT, WHILE DECIDING ON THE ISSUE OF VALIDITY OF RE-OPENING OF AN ASSESSMENT EARLIER COMPLETED U/S 143(1) OF THE IT A CT, 1961, HAS EXAMINED A NUMBER OF JUDGEMENTS OF THE HON'BLE SUPR EME COURT ON THIS ISSUE. SOME OF THE OBSERVATIONS IN THESE JUDGE MENTS HAVE BEEN INCORPORATED BY THE HON'BLE DELHI HIGH COURT IN THE IR JUDGEMENT AS FOLLOWS:- '9. IT WOULD BE APPROPRIATE AT THIS JUNCTURE TO TAK E A BRIEF SURVEY OF A FEW DECISIONS OF THE SUPREME COURT WHICH HAVE INFUSED MEANING AND CONTENT TO THE EXPRESSION 'REASON TO BE LIEVE' APPEARING IN SECTION 147. 10. A CONSTITUTION BENCH OF THE SUPREME COURT IN A. N. LAKSHMAN SHENOY V. ITO (1958) 34 ITR 275, SPEAKING THROUGH S .K. DOS, J HELD THAT AN ASSESSMENT CANNOT BE REOPENED ON THE B ASIS OF A MERE GUESS, GOSSIP OR RUMOUR. THIS WAS IN THE CONTE XT OF THE PRE- 1948 LAW RELATING TO REASSESSMENT UNDER WHICH THE A SSESSING ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 8 OFFICER WAS EMPOWERED TO REOPEN THE ASSESSMENT ON T HE BASIS OF 'DEFINITE INFORMATION'. THOUGH THIS JUDGMENT IS BAS ED ON THE PHRASEOLOGY OF SECTION 34 OF THE 1922 ACT AS IT EXI STED BEFORE 1948 WHICH DID NOT CONTAIN THE EXPRESSION 'REASON T O BELIEVE', THAT PRINCIPLE WAS ADOPTED BY THE SUPREME COURT WHI LE DEALING WITH SECTION 34 OF THE ACT AFTER THE AMENDMENT MADE IN 1948. IN THAT YEAR THE WORDS 'DEFINITE INFORMATION' WERE REP LACED BY THE WORDS 'REASON TO BELIEVE'. WHILE EXPATIATING ON THE NEW WORDS, A THREE-JUDGE BENCH OF THE SUPREME COURT SPEAKING 'TH ROUGH V. RAMASWAMI, J., IN CIT VS S. NARAYANAPPA (1965) 63 1 TR 219 OPINED AS UNDER : - AGAIN THE EXPRESSION 'REASON TO BELIEVE' IN SECTION 34 OF THE INCOME-TAX ACT DOES NOT MEAN A PURELY SUBJECTIVE SA TISFACTION ON THE PART OF THE INCOME-TAX OFFICER. THE BELIEF MUST BE HELD IN GOOD FAITH: IT CANNOT BE MERELY A PRETENCE. TO PUT IT DI FFERENT, IT IS OPEN TO THE COURT TO EXAMINE THE QUESTION WHETHER THE RE ASONS FOR THE BELIEF HAVE A RATIONAL CONNECTION OR A RELEVANT BEA RING TO THE FORMATION OF THE BELIEF AND ARE NOT EXTRANEOUS OR I RRELEVANT TO THE PURPOSE OF THE SECTION. TO THIS LIMITED EXTENT, THE ACTION OF THE INCOME-TAX OFFICER IN STARTING PROCEEDINGS UNDER SE CTION 34 OF THE ACT IS OPEN TO CHALLENGE IN A COURT OF LAW (SEE CAL CUTTA DISCOUNT CO. LTD. V. INCOME-TAX OFFICER, COMPANIES DI-STRICT 1, CALCUTTA).' IN SHEO NATH SINGH VS. APPELLATE ASSISTANT COMMISSI ONER OF INCOME-TAX (1971) 82 I7 - R 147 THE SUPREME COURT (HEGDE J) OBSERVED AS UNDER:- 'THERE CAN BE NO MANNER OF DOUBT THAT THE WORDS 'RE ASON TO BELIEVE SUGGEST THAT THE BELIEF MUST BE THAT OF AN HONEST AND REASONABLE PERSON BASED UPON REASONABLE GROUNDS AND THAT THE INCOME-TAX OFFICER MAY ACT ON DIRECT OR CIRCUMSTANC ES EVIDENCE BUT NOT ON MERE SUSPICION, GOSSIP OR RUMOUR. THE IN COME- TAX OFFICER WOULD BE ACTING WITHOUT JURISDICTION IF THE REASON FOR HIS BELIEF THAT THE CONDITIONS ARE SATISFIED DOES NOT E XIST OR IS NOT MATERIAL OR RELEVANT TO THE BELIEF REQUIRED BY THE SECTION. THE COURT CAN ALWAYS EXAMINE THIS ASPECT THOUGH THE DEC LARATION OR SUFFICIENCY OF THE REASONS FOR THE BELIEF CANNOT BE INVESTIGATED BY THE COURT.' IT WAS FURTHER OBSERVED THAT THE REASONS THEMSELVES CANNOT BE STATED TO BE BELIEFS, WHICH WOULD BE AN OBVIOUS SEL F- CONTRADICTION. 11. THE ENTIRE LAW AS TO WHAT WOULD CONSTITUTE 'REA SON TO BELIEVE' WAS SUMMED UP BY H.R.KHANNA, J, SPEAKING F OR THE SUPREME COURT IN INCOME TAX OFFICER V LAKHMANI MEWA LDAS (1976) 103 ITR 437. THE FOLLOWING PRINCIPLES WERE L AID DOWN:- (A) THE POWERS OF THE ASSESSING OFFICER TO REOPEN A N ASSESSMENT, THOUGH WIDE, ARE NOT PLENARY. (B) THE WORDS OF THE STATUTE ARE 'REASON TO BELIEVE ' AND NOT 'REASON TO SUSPECT'. ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 9 (C) THE REOPENING OF AN ASSESSMENT AFTER THE LAPSE OF MANY YEARS IS A SERIOUS MATTER. SINCE THE FINALITY OF A JUDICI AL OR QUASI- JUDICIAL PROCEEDINGS ARE SOUGHT TO BE DISTURBED, IT IS ESSENTIAL THAT BEFORE TAKING ACTION TO REOPEN THE ASSESSMENT, THE REQUIREMENTS OF THE LAW SHOULD BE SATISFIED. (D) THE REASONS TO BELIEVE MUST HAVE A MATERIAL BEA RING ON THE QUESTION ON ESCAPEMENT OF INCOME. IT DOES NOT MEAN A PURELY SUBJECTIVE SATISFACTION OF THE ASSESSING AUTHORITY; THE REASON BE HELD IN GOOD FAITH AND CANNOT MERELY BE A PRETENCE. (E) THE REASONS TO BELIEVE MUST HAVE A RATIONAL CON NECTION WITH OR RELEVANT BEARING ON THE FORMATION OF THE BELIEF. RA TIONAL CONNECTION POSTULATES THAT THERE MUST BE A DIRECT N EXUS OR LIVE LINK BETWEEN THE MATERIAL COMING TO THE NOTICE OF T HE ASSESSING OFFICER AND THE FORMATION IS BELIEF REGARDING ESCAP EMENT OF INCOME. (F) THE FACT THAT THE WORDS 'DEFINITE INFORMATION' WHICH WERE THERE IN SECTION 34 OF THE ACT OF 1922 BEFORE 1948, ARE N OT THERE IN SECTION 147 OF THE 1961 ACT WOULD NOT LEAD TO THE C ONCLUSION THAT ACTION CAN NOW BE TAKEN FOR REOPENING AN ASSESSMENT EVEN IF THE INFORMATION IS WHOLLY VAGUE, INDEFINITE, FARFETCHED OR REMOTE.' 2.1.11 THE HON'BLE HIGH COURT REFERRING TO THE JUDG EMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF COMMISSIONER O F INCOME TAX VS. KELVINATOR OF INCOME-TAX & ANR. (SUPRA) OBSERVED TH AT IN THE SAID JUDGEMENT, IT HAS BEEN HELD THAT AFTER 1.4.1989 THE ASSESSING OFFICER HAS POWER TO REOPEN PROVIDED THERE IS 'TANGIBLE MAT ERIAL' TO COME TO THE CONCLUSION THAT THERE IS ESCAPEMENT OF INCOME. THIS JUDGMENT HAS LAID EMPHASIS ON TWO MORE ASPECTS: THAT THERE CAN B E NO REVIEW OF AN ASSESSMENT IN THE GUISE OF REOPENING AND THAT A BAR E REVIEW WITHOUT ANY TANGIBLE MATERIAL WOULD AMOUNT TO ABUSE OF THE POWER. 2.1.12 IN THE CASE OF PRASHANT S. JOSHI WRIT PETITI ON NO.2287 OF 2009 DATED 22.02.2010, THE HON'BLE JURISDICTIONAL BOMBAY HIGH COURT HAS HELD THAT THE BASIC POSTULATE WHICH UNDERLINES S. 1 47 IS THE FORMATION OF THE BELIEF BY THE AO THAT INCOME CHARGEABLE TO T AX HAS ESCAPED ASSESSMENT. THE AO MUST HAVE REASON TO BELIEVE THAT SUCH IS THE CASE BEFORE HE PROCEEDS TO ISSUE A NOTICE U/S 147. THE R EASONS WHICH ARE RECORDED BY THE AO FOR REOPENING AN ASSESSMENT ARE THE ONLY REASONS WHICH CAN BE CONSIDERED WHEN THE FORMATION OF THE B ELIEF IS IMPUGNED. THE RECORDING OF REASONS DISTINGUISHES AN OBJECTIVE FROM A SUBJECTIVE EXERCISE OF POWER. THE REQUIREMENT OF RE CORDING REASONS IS A CHECK AGAINST ARBITRARY EXERCISE OF POWER. THE VA LIDITY OF THE REOPENING HAS TO BE DECIDED ON THE BASIS OF THE ' R EASONS RECORDED AND ON THOSE REASONS ALONE. THE REASONS RECORDED WH ILE REOPENING THE ASSESSMENT CANNOT BE ALLOWED TO GROW WITH AGE A ND INGENUITY, BY DEVISING NEW GROUNDS IN REPLIES AND AFFIDAVITS NOT ENVISAGED WHEN THE REASONS FOR REOPENING AN ASSESSMENT WERE RECORD ED. IT HAS FURTHER BEEN HELD THAT THOUGH IN RAJESH JHAVERI 291 ITR 500 (SC) THE SUPREME COURT HELD THAT THE PASSING OF AN INTIMATIO N U/S 143 (1) ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 10 DOES NOT AMOUNT TO AN 'ASSESSMENT' AND IN THE ABSEN CE OF AN ASSESSMENT, THERE WAS NO QUESTION OF A 'CHANGE OF O PINION', THE COURT ALSO HELD THAT THERE MUST BE 'REASON TO BELIEVE' I. E. 'CAUSE OR JUSTIFICATION' THAT INCOME .HAD ESCAPED ASSESSMENT. THERE MUST BE RELEVANT MATERIAL ON WHICH A REASONABLE PERSON COUL D HAVE FORMED A REQUISITE BELIEF EVEN THOUGH THE MATERIAL NEED NOT CONCLUSIVELY PROVE THE ESCAPEMENT. THOUGH EXPLANATION (2) (B) TO S. 14 7 CREATES A DEEMING FICTION OF INCOME HAVING ESCAPED ASSESSMENT IN CASES WHERE AN ASSESSMENT HAS NOT BEEN MADE, THE ACT OF TAKING NOTICE CANNOT BE AT THE ARBITRARY WHIM OR CAPRICE OF THE AO BUT MUST BE BASED ON A REASONABLE FOUNDATION. THOUGH THE SUFFICIENCY OF TH E EVIDENCE OR MATERIAL IS NOT OPEN TO SCRUTINY BY THE COURT, THE EXISTENCE OF THE BELIEF IS THE SINE QUA NON FOR A VALID EXERCISE OF POWER. 2.1.13 AS FOUND HEREINABOVE, THE REASONS RECORDED B Y THE A.O. FOR ENTERTAINING 'THE BELIEF THAT INCOME FOR THE YEAR H AD ESCAPED ASSESSMENT WERE FACTUALLY INCORRECT. SINCE THE FORM ATION OF BELIEF U/S 147 WAS ON INCORRECT FACTS, THE ASSUMPTION OF JURIS DICTION ON THE BASIS OF SUCH BELIEF WAS INCORRECT ASSUMPTION OF JURISDIC TION. CONSEQUENTLY, THE NOTICE ISSUED U/S 148 WAS ALSO BAD IN LAW. HENC E, THE ASSESSMENT FRAMED U/S 143(3)/147 ON THE BASIS OF IN CORRECT ASSUMPTION OF JURISDICTION WAS INVALID. 2.1.14 IN VIEW OF THE AFORESAID REASONS, THE ASSUMP TION OF JURISDICTION BY THE ASSESSING OFFICER U/S 147 IS HELD TO BE BAD IN LAW. THE FIRST EFFECTIVE GROUND OF APPEAL FILED BY THE ASSESSEE IS ALLOWED. 4.3.2 ON AN APPRECIATION OF THE FACTS/DETAILS ON RE CORD, WE CONCUR WITH THE FINDING RENDERED BY THE LEARNED CIT(A). FIRSTLY , WE FIND THAT THE BASIS OF THE AO FOR FORMING THE REASON TO BELIEVE THAT INCOM E OF THE ASSESSEE HAD ESCAPED ASSESSMENT FOR INITIATION OF PROCEEDINGS UN DER SECTION 147 OF THE ACT; I.E. FOR THE REASON THAT THE ASSESSEE HAS WRON GLY CLAIMED SET OFF OF BROUGHT FORWARD LONG TERM CAPITAL LOSS (LTCG) AGA INST THE CURRENT YEARS CAPITAL GAIN (LTCG) IS NON-EXISTENT AND FACTUALLY INCORRECT. THEREFORE, THE INITIATION OF PROCEEDINGS UNDER SECTION 147 OF THE ACT FOR REOPENING THE ASSESSMENT BY THE AO ON THIS FACTUALLY INCORRECT RE ASON IS BAD IN LAW AND CANNOT BE HELD TO BE VALID. FURTHER, IN RESPECT OF THE OTHER REASON GIVEN BY THE AO FOR INITIATION OF REASSESSMENT PROCEEDINGS U NDER SECTION 147 OF THE ACT; I.E. THAT THE ASSESSEE HAS NOT OFFERED LTCG FR OM SALE OF LAND AT VILLAGE BALKUM, WE FIND, WAS NOT BASED ON ANY MATERIAL EVID ENCE OR INFORMATION IN HIS POSSESSION TO THIS EFFECT, NOT HAS ANY REASON B EEN CITED FOR REACHING THE ABOVE CONCLUSION. IN THIS FACTUAL MATRIX OF THE CAS E, WE ARE OF THE CONSIDERED OPINION THAT THERE WAS NO TANGIBLE EVIDE NCE IN THE POSSESSION OF .111 ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 11 THE AO TO FORM THE BASIS FOR INITIATION OF RE-ASSES SMENT PROCEEDINGS UNDER SECTION 147 OF THE ACT. RATHER, IT APPEARS TO US TH AT THE REASONS RECORDED BY THE AO WERE BASED ON SUSPICION AND INCORRECT FAC TS, RATHER THAN ON ANY TANGIBLE MATERIAL EVIDENCE. IN THIS VIEW OF THE MAT TER, SINCE THE BASIS FOR FORMATION OF REASON TO BELIEVE WERE BASED ON INCORR ECT FACTS AND NO TANGIBLE MATERIAL, WE UPHOLD THE DECISION OF THE LE ARNED CIT(A) IN HOLDING THAT THE ASSUMPTION OF JURISDICTION BY THE AO IN TH E CASE ON HAND UNDER SECTION 147 OF THE ACT TO BE BAD IN LAW AND THAT TH E NOTICE UNDER SECTION 148 OF THE ACT ISSUED CONSEQUENTLY AND THE RESULTAN T ORDER OF ASSESSMENT CONCLUDED UNDER SECTION 143 R.W.S. 147 OF THE ACT B ASED ON INCORRECT ASSUMPTION OF JURISDICTION WAS INVALID. ACCORDINGLY , GROUND NO. 1 OF THE REVENUES APPEAL IS DISMISSED. 5. GROUND NO. 2 LONG TERM CAPITAL GAINS 5.1 IN THIS GROUND, REVENUE CHALLENGES THE IMPUGNE D ORDER OF THE LEARNED CIT(A) IN DELETING THE ADDITION OF ` 4,61,89,320/- MADE BY THE AO ON ACCOUNT OF LTCG MADE BY THE AO. WE HAVE HEARD BO TH THE PARTIES IN THE MATTER. IN VIEW OF OUR FINDING AT PARAS 4.3.1 & 4.3.2 OF THIS ORDER (SUPRA) UPHOLDING THE LEARNED CIT(A)S FINDING THAT THE AOS ASSUMPTION OF JURISDICTION UNDER SECTION 147 OF THE ACT IN THE CA SE ON HAND WAS INVALID AND CONSEQUENTLY THE NOTICE ISSUED UNDER SECTION 14 8 OF THE ACT AND RESULTANT ORDER OF ASSESSMENT PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT DATED 31.01.2014 BASED ON WRONG ASSUMPTION OF JURISDICTION WERE ALSO BAD IN LAW AND INVALID, THIS GROUND NO. 2 OF R EVENUES APPEAL BECOMES ACADEMIC IN NATURE AND THEREFORE NO ADJUDICATION TH EREON IS REQUIRED AT THIS JUNCTURE. 6. GROUND NO. 3 & 4 BEING GENERAL IN NATURE, NO ADJUDICATION IS CALLED FOR THEREON. 7. IN THE RESULT REVENUES APPEAL FOR A.Y. 2011-12 IS DISMISSED AS INDICATED ABOVE. 8. ASSESSEES CROSS OBJECTION IN CO NO. 130/MUM/2016 8.1 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS I N THE CO FILED: - ITA NO. 897/MUM/2015 & CO 130/M/16 SMT. VARSHA PRITAM REWARI 12 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) RIGHTLY HELD THAT THE ASSUMPTION OF THE JURISDICTION BY THE ASSESSING OFFICER U/S. 147 OF THE ACT IS BAD IN LAW. 2(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A) RIGHTLY DELETED THE ADDITION OF RS.4 ,61,89,320/- MADE BY THE ASSESSING OFFICER AS BALANCE LONG TERM CAPITAL GAIN RS.4,61,89,320/-. (B) THE LEARNED OFFICER HAS WRONGLY CALCULATED TH E CAPITAL GAIN EARNED BY THE APPELLANT ON SALE OF THE PROPERTY AND THEREBY MADE ADDITION OF RS.4,61,89,320/- WHICH IS ARBITRAR Y AND CONTRARY TO THE FACTS AND EVIDENCE ON RECORD. 3. THE APPELLANT CRAVES LEAVE TO ADD AMEND OR ALTER ALL OR ANY OF THE GROUND OF APPEAL. 8.2 ON A PERUSAL OF THE GROUNDS RAISED IN THE CROSS OBJECTION (SUPRA), IT IS SEEN THAT THEY ARE ALL RAISED IN SUPPORT OF THE IMPUGNED ORDER OF THE LEARNED CIT(A). IN VIEW OF OUR UPHOLDING THE ORDER OF THE LEARNED CIT(A) (SUPRA), THE GROUNDS RAISED IN THIS CO ARE RENDERED INFRUCTUOUS AND ARE, THEREFORE, ACCORDINGLY DISMISSED. 9. IN THE RESULT, THE REVENUES APPEAL FOR A.Y. 2011-1 2 AND ASSESSEES CROSS OBJECTIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH NOVEMBER, 2016. SD/ - SD/ - (SANDEEP GOSAIN) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 4 TH NOVEMBER, 2016 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -23, MUMBAI 4. THE CIT - 12, MUMBAI 5. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.