ITO 13(3)(2), MUMBAI V. JAYANTILAL M. CHOTHANI, MUMBAI

ITA 8977/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78652 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 01-04-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 23-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS; O P SINGH
• Keywords: Sale consideration of property below Jantri Value; Business income; Additional evidence; Date of conversion; Corroborative evidences; Valuation report
• Section: 45(2); 50C; 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI . . , . , ! BEFORE SHRI I.P. BANSAL, JM AND RAJENDRA, AM ./ I.T.A. NO.483/MUM/2011 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2007-08 SHRI JAYANTILAL N. CHOTHANI, PROP. OF M/S. DILIPKUMAR JAYANTILAL & CO. P-3, APMC MARKET-II, PHASE II, TURBHE, NAVI MUMBAI 400 703 ' ' ' ' / VS. THE INCOME TAX OFFICER 13(3)(2), MUMBAI. $ ./ % ./ PAN/GIR NO. : AAAPC 5015D ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) ./ I.T.A. NO.8977/MUM/2010 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2007-08 THE INCOME TAX OFFICER 13(3)(2), MUMBAI. ' ' ' ' / VS. SHRI JAYANTILAL N. CHOTHANI, PROP. OF M/S. DILIPKUMAR JAYANTILAL & CO. P-3, APMC MARKET-II, PHASE II, TURBHE, NAVI MUMBAI 400 703 $ ./ % ./ PAN/GIR NO. : AAAPC 5015D ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) ASSESSEE BY SHRI K.SHIVRAM REVENUE BY : S/SHRI PITAMBAR DAS & O.P.SINGH ' ) *+ / DATE OF HEARING : 01/042014 ,-# ) *+ / DATE OF PRONOUNCEMENT : 01/04/2014 . / O R D E R ./ I.T.A. NO.483/MUM/2011& ITA NO.8977/MUM/2010 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2007-08 2 PER I.P.BANSAL,J.M: THESE ARE CROSS APPEALS AND ARE DIRECTED AGAINST O RDER PASSED BY LD. CIT(A)-24 MUMBAI DATED 29/10/2010 FOR ASSESSMENT YE AR 2007-08. THE GROUNDS OF APPEAL READ AS UNDER: GROUNDS OF ASSESSEES APPEAL IN ITA NO.483/MUM/201 1: 1. THE LD. CIT (A) ERRED IN TREATING THE ENTIRE AMO UNT OF RS. 43,15,332/- AS BUSINESS INCOME, INSTEAD OF BIFURCATING THE SAME AS CAPITAL GAINS BEING PLOT HELD AS INVESTMENT UPTO, 2003, AND BUSINESS INCOME BEING PR OFIT ARISING FROM SALE OF FLATS THEREON. 2. THE CIT (A) FAILED TO APPRECIATE THE FACT THAT A PPLICATION FOR CONSTRUCTION OF BUILDING OVER THE PLOT WAS MADE IN THE YEAR 2003 ON LY, WHEN THE ASSET WAS CONVERTED INTO BUSINESS ASSET, HENCE THE PLOT MAY B E TREATED AS LONG TERM ASSET FROM 1995 TO 2003 AS PER SECTION 45(2). 3. WITHOUT PREJUDICE TO ABOVE, THE LEARNED CIT (A) ERRED IN NOT GIVING ANY FINDING ON ADDITIONAL EVIDENCE FILED, BEING A VALUATION REPORT VALUING OF THE PLOT AS ON 2003, ACQUIRED AFTER THE DATE OF ASSESSMENT ORDER. 4. ON MERITS THE APPELLANT DENIES ITS LIABILITY TO LEVY OF PENAL INTEREST U/S 234A, 234B, 234C. GROUNDS OF REVENUES APPEAL IN ITA NO.8977/MUM/2010 : (1) (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A ERRED IN DELETING THE ADDITION OF RS.21,08,230/- BE ING THE DIFFERENCE BETWEEN SALE OF FLATS DURING THE YEAR. II) THE LD. CIT(A) FAILED TO APPRECIATE THAT THE RE AL ESTATE MARKET WAS NOT SO VOLATILE THAT THE RATES WOULD VARY TO AN EXTENT OF 50% TO 100% HIGHER OF THE LOWEST RATES FOR THE SAME KIND OF FLAT WITH SAME AREA ON THE SAM E LOCATION WITHIN A SPAN OF FOUR TO TEN MONTHS BY THE ASSESSEE. (III) THE LD.CIT(A), FURTHER FAILED TO APPRECIATE T HAT THE ASSESSEE HAD NOT PROVED THIS HUGE VARIATION IN SELLING PRICE IN THE SAME BUILDIN G HAVING THE SAME AREA AND AMENITIES WITH ANY SUPPORTING EVIDENCE ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, ERRED IN NOT APPRECIATING THE FACT THAT THE ASSESSEE CHANGED THE METHOD OF ACCOUNTING IN THIS YEAR WHICH IS DIFFEREN T FROM THAT FOLLOWED IN THE EARLIER YEAR. (IV) THE LD CIT(A) ERRED IN ALSO REFERRING TO SECTI ON 50C AS THE ASSESSEE IS A BUILDER SELLING FLATS AS BUSINESS ACTIVITY. (2) THE APPELLANT PRAYS THAT THE ORDER OF THE CIT( A) ON THE ABOVE GROUND(S) BE SET ASIDE AND THAT OF THE ASSESSMENT OFFICER BE RESTORE D ./ I.T.A. NO.483/MUM/2011& ITA NO.8977/MUM/2010 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2007-08 3 2. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUS INESS OF GRAIN, PULSES MERCHANT AND COMMISSION AGENT. HE WAS ALLOTTED A P LOT BY CIDCO ON 23/11/1995 FOR A CONSIDERATION OF RS.3.00 LACS. FO R THE FIRST TIME, AN AMOUNT OF RS.12,40,359/- WAS DEBITED TO THE ACCOUNT OF THE SAID PLOT ON 15/09/2003, THUS MAKING THE BALANCE UNDER THE HEAD PLOT AT VAS HI AT RS.14,12,557/- AND FURTHER ADDITIONS WERE MADE TO MAKE THE CLOSING BAL ANCE OF THE SAID PLOT AS AT THE END OF THE RELEVANT PREVIOUS YEAR AT A SUM OF RS.60 ,65,332.50. IT WAS FURTHER NOTICED THAT THE SAID PLOT WAS DEVELOPED BY THE AS SESSEE AND THE SAID AMOUNT OF RS.60,65,332/- WAS SHOWN AS WORK-IN-PROGRESS AS ON 31/03/2007. IT WAS ALSO NOTICED THAT ASSESSEE HAD RECEIVED ADVANCES AGAINST THE SALE OF FLATS CONSTRUCTED ON THE SAID PLOT AMOUNTING TO RS.1,17,50,000/-. HO WEVER, NO INCOME WHATSOEVER WAS SHOWN BY THE ASSESSEE. IT IS IN THESE CIRCUMST ANCES THE AO ASSESSED THE DIFFERENCE BETWEEN THE TWO I.E. RS.1,17,50,000/- AN D RS. 60,65,332/- AS UNDISCLOSED PROFITS FROM THE BUSINESS. THE ADDITIO N WAS CALCULATED AT RS.43,15,332/-, WHICH IS THE SUBJECT MATTER OF GROU NDS NO.1, 2 & 3 FILED BY THE ASSESSEE. 2.1 IN DEPARTMENTAL APPEAL THE DELETION OF INCOME O F RS.21,08,230/- IS AGITATED. THE ASSESSEE HAS CONSTRUCTED TOTAL SEVEN FLATS AGAINST WHICH AFOREMENTIONED AMOUNTS OF ADVANCES WERE RECEIVED. IT WAS FOUND BY THE AO THAT THERE WAS HUGE VARIATION IN THE SALE PRICES OF FLA TS AND HE REQUIRED THE ASSESSEE TO EXPLAIN THE SAME. IN ABSENCE OF ANY EXPLANATION COMING FROM THE ASSESSEE THE AO CALCULATED AN AMOUNT OF RS.21,08,230/-, WHICH WA S ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF UNACCOUNTED SALE. THE C ALCULATION OF AO IS AS UNDER: S.NO. NAME & ADDRESS OF THE PARTIES. DATE OF REGISTRATION AREA (SQ.FT) AGREEMENT AMOUNT (RS.) RATE PER SQ.FT. ESTIMATED SALE UNACCOUNTED SALE VALUE (RS.) 1. SUNIL H. PANCHAL 10.02.06 935 20,00,000 2139 2. AJAY HARIBHAI PANCHAL 13.06.06 935 17,00,000 1818 @ 2139 RS.20,00,000 3,00,000 3. MRS. SUJATHA R. SHETTY, MR.RAGHU K. SHETTY 13.06.06 935 11,00,000 1176 @2139 9,00,000 4. SUNIL H. PANCHAL & 12.07.06 935 20,00,000 2139 ./ I.T.A. NO.483/MUM/2011& ITA NO.8977/MUM/2010 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2007-08 4 SANJAY H. PANCHAL 5. DR.SHANKAR DAS 25.09.06 935 20,00,000 2139 6. MRS. ARCHANA A. BAHETI, MR.NARENDRA BAHETI 22.12.06 785 14,00,000 1783 @16,79,115 2,79,115 7. ILARAMAN A. NAICKER, MRS. PREMLATHA I, NAICKER 22.12.06 785 10,50,000 1337 @ 2139 RS.16,79,115 6,29,115 TOTAL UNACCOUNTED SALE 21,08,230/- 2.2 THE ASSESSEE AGITATED BOTH THE ADDITIONS BEFOR E LD. CIT(A). THE ASSESSEE ALSO SUBMITTED SOME ADDITIONAL EVIDENCES BEFOR E LD. CIT(A) AND IT WAS THE ALTERNATIVE CONTENTION OF THE ASSESSEE THAT THE PL OT WAS ALLOTTED BY CIDCO TO THE ASSESSEE FOR RESIDENTIAL PURPOSES AND ONLY IN THE Y EAR 2003 THE ASSESSEE APPLIED FOR COMMENCEMENT CERTIFICATE AS THE ASSESSEE WANTED TO DEVELOP THE SAME. ACCORDING TO ASSESSEE WHEN IT APPLIED FOR COMMENCEM ENT OF CONSTRUCTION ACTIVITY FOR THE PURPOSE OF DEVELOPMENT OF THE LAND, THEN I T IS TO BE PRESUMED THAT HE HAS CONVERTED HIS INVESTMENT IN STOCK-IN-TRADE. THUS A CCORDING TO THE ASSESSEE THE PROFIT EARNED BY THE ASSESSEE HAS TO BE ASSESSED U NDER TWO HEADS. FIRST, ON THE DATE OF CONVERSION OF INVESTMENT INTO STOCK-IN-TRA DE ON WHICH THE CAPITAL GAIN SHOULD BE WORKED OUT ACCORDING TO THE PROVISIONS O F SECTION 45(2) OF THE INCOME TAX ACT, 1961(THE ACT) AND TO BE TAXED IN THE YEAR UNDER CONSIDERATION AND SECONDLY; REST OF THE PROFIT SHOULD BE ASSESSED UND ER THE HEAD PROFITS AND GAINS FROM BUSINESS OR PROFESSION. TO FURTHER SUPPORT I TS CASE THE ASSESSEE HAD ALSO FILED CERTAIN ADDITIONAL EVIDENCES BEFORE LD. CIT( A) AND THIS FACT IS MENTIONED IN PARA 2.1 OF THE ORDER OF LD. CIT(A). HOWEVER, LD. CIT(A) DID NOT ADJUDICATE ON THE ISSUE OF FILING OF ADDITIONAL EVIDENCES BY TH E ASSESSEE AND HAS COME TO A CONCLUSION THAT THE ACTIVITIES CARRIED ON BY THE AS SESSEE WERE IN THE NATURE OF BUSINESS. THEREFORE, LD. CIT(A) HAS HELD THAT THE GAIN HAS RIGHTLY BEEN ASSESSED BY THE AO UNDER THE HEAD PROFITS AND GAINS OF BUSIN ESS OR PROFESSION. 2.3 ON THE SECOND ISSUE LD. CIT(A) HAS OBSERVED THA T THE AO HAS MADE THE ADDITION ON THE BASIS OF DIFFERENT RATES TAKEN BY T HE ASSESSEE FOR EFFECTING SALE OF ./ I.T.A. NO.483/MUM/2011& ITA NO.8977/MUM/2010 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2007-08 5 FLATS. THERE WAS NO OTHER INFORMATION OR ALLEGATIO N AVAILABLE WITH THE AO TO MAKE SUCH ADDITION. IN ABSENCE OF CORRESPONDING EVIDEN CE/MATERIAL IN THE POSSESSION OF AO THAT IN REALITY ASSESSEE HAD RECEIVED MORE MO NEY THAN WHAT HAS BEEN DISCLOSED IN RESPECT OF SALE OF FLATS, THE ADDITIO N COULD NOT BE SUSTAINED. THUS THE ADDITION OF RS.21,08,332/- IS DELETED. 2.4 AS IT CAN BE SEEN FROM THE GROUNDS OF APPEAL FI LED BY THE ASSESSEE THE GRIEVANCE OF THE ASSESSEE IS ONLY THAT ENTIRE AMOUN T OF RS.43,15,332/- COULD NOT BE ASSESSED UNDER THE HEAD PROFITS AND GAINS OF BU SINESS OR PROFESSION AND THE SAME IS REQUIRED TO BE BIFURCATED INTO TWO HEADS, A ND UNDER THE PROVISIONS OF SECTION 45(2) OF THE ACT THE CAPITAL GAIN SHOULD BE COMPUTED IN RESPECT OF VALUE OF PLOT WHEN IT WAS CONVERTED FROM INVESTMENT TO ST OCK-IN-TRADE AND THE OTHER PART OF THE INCOME ONLY SHOULD BE ASSESSED UNDER TH E HEAD INCOME FROM PROFITS AND GAINS OF BUSINESS OR PROFESSION. IT IS ALSO THE GRIEVANCE OF THE ASSESSEE THAT LD. CIT(A) HAS ERRED IN NOT ADJUDICA TING THE ISSUE REGARDING ADDITIONAL EVIDENCES FILED IN THIS REGARD. 2.5 IN DEPARTMENTAL APPEAL THE DEPARTMENT IS AGITAT ING THE DELETION OF RS.21,08,332/-. 3. AFTER NARRATING THE FACTS REFERRING TO THE PROVI SIONS OF SECTION 45(2) IT WAS SUBMITTED BY LD. AR THAT SINCE THE PLOT WAS ALLOTTE D TO THE ASSESSEE BY CIDCO FOR RESIDENTIAL PURPOSES ONLY, THE SAME WAS AN INVESTME NT IN THE HANDS OF THE ASSESSEE. THE ASSESSEE APPLIED FOR COMMENCEMENT CE RTIFICATE ON 18/10/2013 WHICH IS THE DATE TO BE TAKEN AS CONVERSION OF INV ESTMENT INTO STOCK-IN-TRADE. HE SUBMITTED THAT CERTIFICATE OF COMMENCEMENT WAS O BTAINED BY THE ASSESSEE FROM CIDCO ON 20/11/2003 AND THUS ASSESSEE COMMENCE D THE ACTIVITY OF BUSINESS AS DEVELOPMENT OF THE PLOT AND MADE CONSTR UCTIONS EXPENSES WHICH WERE SHOWN AS WORK-IN-PROGRESS. THE OCCUPANCY CERT IFICATE WAS OBTAINED ON 24/6/2005 AND FLATS CONSTRUCTED ON THE PLOT WERE SO LD. THUS IT WAS PLEADED BY LD. AR THAT THE INCOME EARNED BY THE ASSESSEE SHOUL D BE BIFURCATED INTO TWO HEADS. LD. AR FAIRLY ADMITTED SUCH CONTENTION WAS NEVER RAISED BEFORE AO. ./ I.T.A. NO.483/MUM/2011& ITA NO.8977/MUM/2010 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2007-08 6 HOWEVER, HE SUBMITTED THAT THESE CONTENTIONS FOR TH E FIRST TIME WERE RAISED BEFORE LD. CIT(A) AND CERTAIN ADDITIONAL EVIDENCES WERE AL SO SUBMITTED WHICH HAVE NOT BEEN ADJUDICATED BY LD. CIT(A). HE SUBMITTED THAT HE HAS NO OBJECTION IF THE MATTER IS RESTORED BACK TO THE FILE OF AO WITH A DI RECTION TO CONSIDER ALL THESE SUBMISSIONS OF THE ASSESSEE AND RE-ADJUDICATE THE M ATTER. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY AO AND LD. CIT(A). HE SUBMITTED THAT ENTIRE INCOME HAS RIGHTL Y BEEN ASSESSED BY AO UNDER THE HEAD INCOME FROM PROFITS AND GAINS OF BUSINESS OR PROFESSION. HE SUBMITTED THAT ASSESSEE COULD NOT PROVE THAT WHEN THE SO CAL LED INVESTMENT WAS CONVERTED INTO STOCK-IN-TRADE. LD. DR SUBMITTED THAT THE ASS ESSEE HAD PURCHASED THIS PLOT LONG BACK IN 1995 WITH AN INTENTION TO DEVELOP THE SAME AND, THEREFORE, THE ORDER OF LD. CIT(A) IN THIS REGARD SHOULD BE UPHELD AND A PPEAL FILED BY THE ASSESSEE SHOULD BE DISMISSED. 4.1 COMING TO DEPARTMENTAL APPEAL IT WAS SUBMITTED BY LD. DR THAT THE TABLE SHOWING THE PARTICULARS REGARDING SALE OF ALL THE SEVEN FLATS CLEARLY DEPICTS THAT THERE WAS VAST DIFFERENCE IN THE RATE OF SALE EVE N WHEN BOTH THE FLATS WERE SOLD ON SAME DATE. REFERRING TO THE TABLE WHICH HAS ALR EADY BEEN DESCRIBED IN THE ABOVE PART OF THIS ORDER, IT WAS SUBMITTED BY LD. D R THAT SIMILAR FLAT WAS SOLD FOR RS.17.00 LACS AND OTHER FLAT WAS SOLD AT RS.11.00 L ACS. HE SUBMITTED THAT ON THESE VARIATION OF PRICES, THE AO WAS REQUIRED THE ASSESSEE TO JUSTIFY THE SALE RATES AND ASSESSEE DID NOT FILE ANY REPLY TO SUBSTA NTIATE SUCH CONTENTION, LD. DR REFERRED TO THE OBSERVATION OF AO IN PARA 14 OF THE ASSESSMENT ORDER, WHEREIN IT HAS BEEN CLEARLY WRITTEN THAT ASSESSEE DID NOT RESP OND TO THE QUERY OF THE AO. THUS IT WAS PLEADED BY LD. DR THAT ADDITION HAS WRO NGLY BEEN DELETED BY LD. CIT(A). HE SUBMITTED THAT WHEN AO REQUIRE THE ASSE SSEE TO EXPLAIN THE SAME AND ASSESSEE DID NOT SUBMIT EXPLANATION, IT PREVENTED T HE AO TO MAKE ANY INVESTIGATION. THEREFORE, THE AO WAS JUSTIFIED IN MAKING THE ADDITION AND LD. CIT(A) HAS WRONGLY DELETED THE SAME. 5. ON THE OTHER HAND, IT WAS SUBMITTED BY LD. AR TH AT IN ABSENCE OF ANY EVIDENCE, SIMPLY ON THE BASIS OF VARIATION IN THE S ALE RATES, THE ADDITION COULD NOT ./ I.T.A. NO.483/MUM/2011& ITA NO.8977/MUM/2010 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2007-08 7 BE MADE. WHEN THE ATTENTION OF LD. A.R WAS DRAWN TO THE OBSERVATION OF AO IN PARA-14, HE SUBMITTED THAT EVEN IF DETAILS WERE FU RNISHED BEFORE AO, THE AO COULD NOT MAKE ANY ADDITION AS THERE IS NO ENABLI NG PROVISION FOR HIM TO DO SO. HOWEVER, HE SUBMITTED THAT SINCE FIRST ISSUE IS GO ING BACK TO THE FILE OF AO, THIS ISSUE MAY ALSO BE RESTORED BACK. 6. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. SO FAR AS IT RELATES TO THE ISSUE RAI SED BY THE ASSESSEE IN HIS APPEAL, WE FOUND THAT THOUGH THE ASSESSEE IS NOT AGITATING THE ASSESSABILITY OF THE PROFITS AND GAINS EARNED FROM THE ACTIVITY OF DEVELOPMENT O F THE PLOT IN THE YEAR UNDER CONSIDERATION BUT THE ONLY OBJECTION OF THE ASSESSE E IS BIFURCATION OF THIS INCOME INTO TWO PARTS. ADMITTEDLY, THIS GROUND WAS NOT TA KEN BY THE ASSESSEE BEFORE AO. HOWEVER, SUCH PLEA WAS TAKEN BEFORE LD. CIT(A) ONLY . CERTAIN ADDITIONAL EVIDENCES WERE ALSO FILED WHICH HAVE NOT BEEN SPECI FICALLY ADJUDICATED BY LD. CIT(A). IN THIS VIEW OF THE SITUATION, WE ARE OF T HE OPINION THAT SO FAR AS IT RELATES TO ISSUES RAISED BY THE ASSESSEE IN COMMON GROUNDS NO.1,2 & 3 OF HIS APPEAL SHOULD BE RESTORED BACK TO THE FILE OF AO FOR DENOV O CONSIDERATION AS PER PROVISIONS OF LAW. AFTER GIVING THE ASSESSEE A REAS ONABLE OPPORTUNITY OF HEARING AND PLACING ALL THE EVIDENCES ON RECORD, THE ISSUE WILL BE RE-ADJUDICATED BY THE AO AS PER PROVISIONS OF LAW. WE DIRECT ACCORDINGLY . GROUND NO.1, 2 & 3 FILED BY THE ASSESSEE ARE CONSIDERED TO BE ALLOWED FOR STAT ISTICAL PURPOSES IN THE MANNER AFORESAID. 6.1 SO FAR AS IT RELATES TO GROUND NO.4 WHICH IS RE GARDING LEVY OF INTEREST UNDER SECTION 234A, 234B AND 234C OF THE ACT, THOUGH NO A RGUMENTS WERE SUBMITTED BY THE LD. AR BUT THESE LEVIES ARE CONSEQUENTIAL AND AO SHOULD RE-CALCULATE THESE INTERESTS AFTER GIVING EFFECT TO THIS ORDER OF THE TRIBUNAL. THIS GROUND IS ALSO CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPO SES. 6.2 NOW COMING TO DEPARTMENTAL APPEAL, IT HAS BEEN DESCRIBED IN THE ASSESSMENT ORDER THAT IN RESPONSE TO QUERY RAISED B Y THE AO THE ASSESSEE DID NOT FILE ANY RESPONSE. LD. CIT(A) HAS DELETED THIS ADD ITION SIMPLY ON THE GROUND THAT ./ I.T.A. NO.483/MUM/2011& ITA NO.8977/MUM/2010 ( ' ' ' ' # # # # / ASSESSMENT YEAR : 2007-08 8 THERE IS NO ADVERSE MATERIAL ON RECORD TO ENABLE TH E AO TO MAKE THIS ADDITION. IN OUR CONSIDERED OPINION THESE FINDINGS OF LD. CIT(A ) ARE CONTRARY TO THE OBSERVATIONS OF AO ACCORDING TO WHICH DETAILS WERE NOT FILED BY THE ASSESSEE IN RESPONSE TO QUERY RELATING TO THIS ISSUE. THE ASSE SSEE IS UNDER AN OBLIGATION TO FURNISH THE DETAILS IF THESE ARE REQUIRED BY THE AO . IN ABSENCE OF DETAILS FORTHCOMING FROM THE ASSESSEE THE AO IS ENTITLED TO TAKE AN ADVERSE VIEW WHICH HAS BEEN TAKEN. ACCORDINGLY, WE ARE OF THE OPINION THAT IT WILL MEET THE INTEREST OF JUSTICE IF THIS ISSUE ALSO BE RESTORED BACK TO THE FILE OF AO FOR RE-ADJUDICATION AS PER LAW AFTER GIVING THE ASSESSEE A REASONABLE O PPORTUNITY OF HEARING AND PLACING ALL THE MATERIAL ON RECORD. THEREFORE, THE APPEAL FILED BY THE REVENUE IS ALSO CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPO SES. 7. IN THE RESULT, BOTH THE APPEALS ARE CONSIDERED T O BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 01/04/2014 . . ) ,-# / 0'1 01/04/2014 - ) 2 SD/- SD/- (RAJENDRA) . . (I.P.BANSAL) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 0' DATED 01/04/2014 . ' . .VM , SR. PS . . . . ) )) ) '*3 '*3 '*3 '*3 43#* 43#* 43#* 43#* / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT. 3. 5 ( ) / THE CIT(A)- 4. 5 / CIT 5. 362 '*' , , / DR, ITAT, MUMBAI 6. 27 8 / GUARD FILE. .' .' .' .' / BY ORDER, (3* '* //TRUE COPY// 9 99 9 / : : : : (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI