Dy. CIT, Circle-1, Jalgaon V. Smt. Taradevi Ratanlal Bafna, Jalgaon

ITA 904/PUN/2013

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9524 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 13-10-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA CIT DRS
• Keywords: Sale consideration of property below Jantri Value; Depreciation; Business expenditure; Rectification of order; Search and seizure; Opportunity of being heard; Principle of natural justice; Earning of tax free income; Fair market value; Valuation report
• Section: 50C; 37; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.732/PUN/2013 / ASSESSMENT YEAR : 2009-10 SMT. TARADEVI RATANLAL BAFNA, PROP. OF R.C. BAFNA JEWELLERS, 91, SUBHASH CHOWK, JALGAON 425 001 PAN : AADPB9424E . /APPELLANT VS. JCIT, RANGE-1, JALGAON . / RESPONDENT . / ITA NO.904/PUN/2013 / ASSESSMENT YEAR : 2009-10 DCIT, CIRCLE-1, JALGAON . /APPELLANT VS. SMT. TARADEVI RATANLAL BAFNA, PROP. OF R.C. BAFNA JEWELLERS, 91, SUBHASH CHOWK, JALGAON 425 001 PAN : AADPB9424E . / RESPONDENT . / ITA NO.447/PUN/2015 / ASSESSMENT YEAR : 2009-10 SMT. TARADEVI RATANLAL BAFNA, PROP. OF R.C. BAFNA JEWELLERS, 91, SUBHASH CHOWK, JALGAON 425 001 PAN : AADPB9424E . /APPELLANT VS. JCIT, RANGE-1, JALGAON/ CIT(A)-2, NASHIK . / RESPONDENT ASSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SHRI RAJEEV KUMAR & SHRI MUKESH JHA, CIT DRS / DATE OF HEARING : 10.11.2017 / DATE OF PRONOUNCEMENT: 09.01.2018 ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 2 / ORDER PER D. KARUNAKARA RAO, AM : THERE ARE 3 APPEALS UNDER CONSIDERATION. THERE ARE CROSS APPEALS FOR THE A.Y. 2009-10 AND THEY ARE ITA NOS. 732/PUN/2013 AND 904/PUN/2013. THESE APPEALS ARE FILED BY THE ASSES SEE AND THE REVENUE AGAINST THE ORDER OF CIT(A)-II, NASHIK DAT ED 26-02-2013. FURTHER, THERE IS ANOTHER APPEAL FILED BY THE ASSES SEE VIDE ITA NO.447/PUN/2015 FOR THE SAME ASSESSMENT YEAR AND TH E SAME HAS GENESIS IN THE RECTIFICATION ORDER PASSED U/S.154 O F THE I.T. ACT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNER IN M/S. BAFNA BUILDERS AND LAND DEVELOPERS, JALGAON. ASSES SEE IS ENGAGED IN THE BUSINESS OF TRADING ACTIVITY IN GOLD AND BULLIO N & ORNAMENTS, DIAMOND AND DIAMOND ORNAMENTS. ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.30,11,75,820/-. ASSES SMENT WAS COMPLETED U/S.143(3) OF THE ACT DETERMINING THE ASS ESSED INCOME AT RS.36,07,76,280/-. NUMBER OF ADDITIONS WERE MADE B Y THE AO AND THE DETAILS IN SUMMARY ARE GIVEN IN PAGE 17 OF THE ASSE SSMENT ORDER. 3. AGGRIEVED WITH THE SAID ADDITIONS, ASSESSEE FILE D AN APPEAL BEFORE THE CIT(A)-II, NASHIK. AT THE END OF THE FIRST APP ELLATE PROCEEDINGS, CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. SUBSEQUENTLY, THE CIT(A) ALSO FOUND APPARENT MISTAKE IN HIS ORDER AND THEREFORE, HE INVOKED THE PROVISIONS OF SECTION 154 OF THE ACT AN D RECTIFIED HIS ORDER VIDE RECTIFICATION ORDER DATED 13-01-2015 AFTER FOL LOWING DUE PROCESS OF LAW AND AFTER GIVING OPPORTUNITY TO THE ASSESSEE. AGGRIEVED WITH THE RELIEF GRANTED BY THE CIT(A), THE REVENUE IS IN APP EAL BEFORE US VIDE ITA NO.904/PUN/2013. FURTHER, AGGRIEVED WITH THE ADDIT IONS CONFIRMED BY THE CIT(A) THE ASSESSEE IS IN APPEAL VIDE ITA NO.73 2/PUN/2013. ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 3 FURTHER, AGGRIEVED WITH THE DECISION OF THE CIT(A) IN ASSUMING JURISDICTION U/S.154 OF THE ACT, THE ASSESSEE FILED ANOTHER APPEAL ITA NO.447/PUN/2015 REQUESTING FOR CANCELLING THE SAID RECTIFICATION ORDER. WE SHALL NOW TAKE UP THE APPEAL-WISE ADJUDI CATION IN THE FOLLOWING PARAGRAPH. ITA NO.904/PUN/2013 (BY REVENUE A.Y.2009-10) ITA NO.732/PUN/2013 (BY ASSESSEE A.Y.2009-10) ITA NO.447/PUN/2015 (BY ASSESSEE A.Y. 2009-10) 4. IN CONNECTION WITH THE CROSS APPEALS IN GENERAL AND THE ASSESSEES APPEAL IN PARTICULAR, LD. COUNSEL FOR TH E ASSESSEE FILED A CHART GIVING THE DETAILS OF THE GROUNDS RAISED ORIG INALLY IN THE APPEAL AS WELL AS THE ADDITIONAL GROUNDS RAISED DURING THE CO URSE OF THE PROCEEDINGS BEFORE THE TRIBUNAL. THE ISSUES, THE I SSUE-WISE ARGUMENTS OF THE PARTIES AND THE DECISION OF THE TRIBUNAL ON EACH OF THEM, ARE GIVEN IN THE FOLLOWING PARAGRAPHS. 5. THE FIRST ISSUE RAISED BY THE ASSESSEE RELATES T O THE DISALLOWANCE OF INTEREST OF RS.49,23,531/-. IT HAS TWO SEGMEN TS NAMELY (1) THE DISALLOWANCE OF INTEREST OF RS.8,10,106/- RELATING TO THE DIVERSION OF FUNDS FOR NON-BUSINESS PURPOSES; AND (2) THE DISALL OWANCE OF AN AMOUNT OF RS.41,13,425/- U/S.36(1)(III) OF THE ACT. 6. THE FACTS RELATING TO THE DISALLOWANCE INCLUDE T HAT THE ASSESSEE DEBITED INTEREST EXPENDITURE AS WELL AS CREDITED TH E INTEREST INCOME EARNED BY HER. THE AO DISALLOWED THE INTEREST EXPE NDITURE OF RS.49,23,531/- AND ADDED TO THE INCOME RETURNED BY THE ASSESSEE. IN THIS REGARD, THE ASSESSEES ARGUMENT INCLUDES THAT THE SAID INTEREST CONSTITUTES AN ALLOWABLE EXPENDITURE U/S.37 OF THE ACT. AO HELD THAT THE CLAIM OF THE ASSESSEE IS NOT ALLOWABLE AS THE S AME CONSTITUTE DIVERSION OF FUNDS FOR NON-BUSINESS PURPOSES. FURT HER, IN CONNECTION WITH THE CLAIM OF OTHER PART OF INTEREST, AO INVOKE D THE PROVISIONS OF ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 4 SECTION 36(1)(III) OF THE ACT FOR DENYING THE CLAIM OF THE ASSESSEE. IT IS THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE TH AT THE LOWER AUTHORITIES ERRED IN RELYING ON THE PROVISIONS OF S ECTION 36(1)(III) FOR DENYING THE CLAIM AS THE ADVANCES RECEIVED ARE FOR BUSINESS PURPOSES AND THEREFORE, THE INTEREST CLAIMED IF ANY IS ALLOW ABLE U/S.37 OF THE ACT. LD. COUNSEL FOR THE ASSESSEE FILED THE WRITTEN SUBM ISSIONS MENTIONING THE FOLLOWING : THE AO HAS MADE THE ADDITION ON THE GROUND OF DIV ERSION OF FUNDS FOR NON BUSINESS PURPOSE AND U/S.36(1)(III) OF THE I.T. ACT, 1961. THE APPELLANT HAD FILED HER EXPLANATION BEFORE LD.CIT(A ) VIDE PAGE NOS. 55 TO 69 OF PAPER BOOK WHICH HAS BEEN QUIETLY IGNORED BY THE LD.CIT(A) WHO HAS DRAWN ERRONEOUS CONCLUSIONS OF HIS OWN. BASICA LLY ALL THE ADVANCES WERE FOR BUSINESS CONSIDERATIONS, I.E. ADVANCES WER E GIVEN DURING THE COURSE OF CARRYING ON THE BUSINESS ON WHICH NO INTE REST WAS CHARGED. THE LD. AO MADE THE DISALLOWANCE ON ACCOUNT OF DIVE RSION OF FUNDS FOR NON BUSINESS PURPOSES AND ALSO U/S. 36(1)(III) OF T HE I.T. ACT, 1961 AND LD.CIT(A) MADE THE DISALLOWANCE ONLY U/S.36(1)(III) WHICH IS INCORRECT AND IF AT ALL THE DISALLOWANCE WAS TO BE MADE IT SHOULD HAVE BEEN MADE U/S.37. THE APPELLANT MOST RESPECTFULLY SUBMITS TH AT THE MATTER CANNOT BE RESTORED TO THE LOWER AUTHORITIES TO ASCERTAIN THE APPLICABILITY OF PROVISIONS OF SECTION 37 OF THE I.T. ACT, 1961 AND RELIANCE IS PLACED ON THREE HIGH COURT DECISIONS SUBMITTED IN THE CASE OF BAFNA BUILDERS AND DEVELOPERS WHICH IS SIMULTANEOUSLY HEARD. 7. FROM THE ABOVE, IT IS THE SUBMISSION OF THE ASSE SSEES COUNSEL THAT THE ISSUE MAY BE RESTORED TO THE FILE OF THE A O AND THE SAME WILL BE IN TUNE WITH THE DECISION OF THE TRIBUNAL IN THE CA SE OF M/S. BAFNA BUILDERS AND LAND DEVELOPERS - ITA NOS. 706/PUN/201 3 AND ITA NO.162/PUN/2015 & ITA NO.902/PUN/2013 ORDER DATED 3 0-10-2017 WHERE GROUND NO.3 WAS ALREADY REMANDED TO THE FILE OF THE AO FOR FRESH ADJUDICATION AS PER THE DISCUSSION GIVEN IN PARA 17 OF THE SAID ORDER OF THE TRIBUNAL (SUPRA). IN THE REMAND PROCEEDINGS, A O WAS DIRECTED TO GRANT REASONABLE OPPORTUNITY TO THE ASSESSEE. 8. LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORD ERS OF THE AO AND THE CIT(A). ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 5 9. AFTER HEARING BOTH THE SIDES, WE ARE OF THE VIEW THAT THIS GROUND SHOULD REVISIT TO THE FILE OF THE AO. THEREFORE, G ROUND NO.1 IN ITS ENTIRETY, IS REMANDED TO THE FILE OF THE AO FOR FRE SH ADJUDICATION. ACCORDINGLY, GROUND NO.1 IS ALLOWED FOR STATISTICAL PURPOSES. 10. THE SECOND ISSUE RAISED VIDE GROUND NO.2 RELATES TO DISALLOWANCE OF INTEREST OF 17,41,441/- U/S.14A R. W. RULE 8D OF THE I.T. RULES. ON THIS ISSUE ALSO, LD. COUNSEL FOR T HE ASSESSEE SUBMITTED IN THE WRITTEN SUBMISSIONS THAT THIS ISSUE ALSO NEE DS TO REVISIT TO THE FILE OF THE AO SUBMITTING THE FOLLOWING ARGUMENTS : 1. THE LD.CIT(A) HAS FAILED TO PROPERLY ANALYSE TH E FACTS IN PROPER PERSPECTIVE AND HIS CONCLUSIONS DRAWN ON PAGE NO.47 & 48 OF THE IMPUGNED ORDER ARE ERRONEOUS AND HENCE DESERVE TO B E REJECTED. 2. BOTH THE LOWER AUTHORITIES HAVE FAILED TO APPREC IATE THAT THE APPELLANT HAD SURPLUS FUNDS OF HER OWN AND THEREFOR E A PRESUMPTION ARISES THAT THE INVESTMENTS WERE MADE OUT OF OWN FU NDS. THE APPELLANT THEREFORE REQUESTS THAT THE ISSUE MAY PLEASE BE RESTORED TO THE FILE OF THE LD. AO IN THE LIGHT OF THE DEVELOPED LEGAL POSITION IN TH IS RESPECT WITH A DIRECTION THAT THE DISALLOWANCE SHOULD NOT EXCEED THE EXEMPT INCOME. 11. LD. DR FOR THE REVENUE RELIED HEAVILY ON THE OR DERS OF THE AO AND THE CIT(A). 12. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS EXCESS FUNDS WHICH WERE INVESTED IN TH E SHARES WHICH YIELDED DIVIDEND INCOME AND THE INTEREST CLAIMED BY THE ASSESSEE IS NOTHING TO DO WITH THE INVESTMENTS MADE BY HIM IN T HE EXEMPT INCOME YIELDING INVESTMENTS. FOR EXAMINING THE CLAIM OF T HE ASSESSEE AS WELL AS APPLYING THE CORRECT LAW ON THIS ISSUE, LD. COUN SEL DESIRES THAT THE MATTER SHOULD BE RESTORED TO THE FILE OF THE AO. 13. ON HEARING BOTH THE PARTIES AND ALSO IN TUNE WI TH OUR FINDING ON AN IDENTICAL ISSUE RAISED IN GROUND NO.3 OF THE APP EAL ADJUDICATED BY US IN THE CASE OF M/S.BAFNA BUILDERS AND LAND DEVEL OPERS, WE ARE OF ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 6 THE OPINION THAT THIS SHOULD ALSO RE-VISIT TO THE F ILE OF THE AO WITH IDENTICAL DIRECTIONS. ACCORDINGLY, GROUND NO.2 RAI SED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 14. GROUND NO.3 RELATES TO THE ADDITION OF RS.63,75 ,000/- MADE U/S.69B OF THE ACT. BACKGROUND FACTS OF THIS ISSUE INCLUDE THAT CHHORIYA GROUP WAS SEARCHED U/S.132 OF THE ACT. SE ARCH RESULTED IN SEIZURE OF A DOCUMENT INVOLVING SHRI RATANLAL C. BA FNA FOR THE A.Y. 2009-10. ACCORDING TO THE SAID DOCUMENT, THE ASSES SEE PURCHASED SHIRDI PLOTS AMOUNTING TO RS.1,13,75,000/-. HOWEVE R, ON VERIFICATION OF THE RECORDS, IT WAS NOTICED THAT AN AMOUNT OF RS .50 LAKHS ONLY WAS REFLECTED IN THE BOOKS OF THE ASSESSEE. CONSIDERIN G THE FACT THERE WAS SETTLEMENT OF LOAN BETWEEN CHHORIYA GROUP AND SHRI RATANLAL C. BAFNA. THE DIFFERENTIAL AMOUNT OF RS.63,75,000/- WAS ADDED IN HER HANDS AND HER HUSBAND HANDS U/S.69B OF THE ACT. IN THIS REGA RD, ASSESSEE FURNISHED THE FOLLOWING ARGUMENTS/OBJECTIONS TO THE DECISION OF THE LOWER AUTHORITIES : 1. THE TRANSACTION WAS A DISTRESS SALE ENTERED INT O BY THE APPELLANT AFTER THE SEARCH AND SEIZURE ACTION ON THE SAID GRO UP. 2. MR. RATANLAL C. BAFNA IN HIS CASE HAS CHALLENGED THE ADDITION. 3. THE ADDITION HAS BEEN MADE ON PRESUMPTIONS AND S URMISES WITHOUT GIVING AN OPPORTUNITY TO THE APPELLANT TO C ROSS EXAMINE THE AUTHOR OF THE DOCUMENT FROM CHHORIYA GROUP. 4. THERE IS NO EVIDENCE WITH THE DEPARTMENT THAT TH E APPELLANT HAS PAID THE AMOUNT TO HER HUSBAND. 5. ONCE THE AMOUNT IS ADDED IN THE HANDS OF THE HUS BAND OF THE APPELLANT THE SAME AMOUNT CANNOT BE ADDED IN THE HA NDS OF THE APPELLANT AS THEN IT WOULD BE A CASE OF DOUBLE ADDI TION. 15. FURTHER, LD. AR SUBMITTED BEFORE US, MAKING ADD ITION OF THE SAME AMOUNT IN THE CASES OF THE ASSESSEE AS WELL AS HER HUSBAND, IS UNSUSTAINABLE IN LAW. FURTHER, REFERRING TO THE VI OLATION OF PRINCIPLES OF NATURAL JUSTICE, LD. AR SUBMITTED THAT THE SAID SEI ZED PAPER WAS NEVER ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 7 SUPPLIED TO THE ASSESSEE AND THE OPPORTUNITY WAS AL SO NOT GRANTED BY THE AO BEFORE ANY ADDITION IS MADE. FURNISHING A C OPY TO HER HUSBAND DURING THE COURSE OF HIS ASSESSMENT PROCEEDINGS DOE S NOT CURE THE LEGAL DEFECT. IT IS THE PRAYER OF THE LD. COUNSEL BEFORE US THAT THIS ISSUE SHOULD ALSO REVISIT TO THE FILE OF THE AO FOR PROPE R ADJUDICATION FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 16. ON HEARING BOTH THE PARTIES, WHERE THE LD. DR FOR T HE REVENUE RELIED HEAVILY ON THE ORDERS OF THE AO AND THE CIT( A), WE FIND PRIMA- FACIE, MISTAKE IN TAXING THE SAME AMOUNT BOTH IN TH E ASSESSEES CASE AND HER HUSBANDS CASE. FURTHER, SUPPLYING THE COP Y OF THE DOCUMENT TO THE ASSESSEE IS HER LEGITIMATE RIGHT BEFORE ANY ADDITION IS MADE IN HER HANDS RELYING ON THE SAID DOCUMENT. THEREFORE, AO IS DIRECTED TO SUPPLY THE SAME AND ALSO CROSS EXAMINATION IF ANY B EFORE MAKING ANY ADDITION IN HER CASE AND IN THE REMAND PROCEEDINGS. ACCORDINGLY, AS REQUESTED, THE ISSUE IS RESTORED TO THE FILE OF THE AO FOR FRESH ADJUDICATION. AO IS DIRECTED TO GRANT REASONABLE O PPORTUNITY OF BEING TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGL Y, GROUND NO.3 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. 17. GROUND NO.4 BY THE ASSESSEE RELATES TO THE ADDI TION OF RS.1,67,54,510/-. BACKGROUND FACTS OF THIS ISSUE IN CLUDES THAT ASSESSEE IS A CO-OWNER OF A PROPERTY WHICH WAS GIVE N TO M/S. BAFNA BUILDERS AND LAND DEVELOPERS. AS PER THE AO, ASSES SEE HAS 1/5 TH SHARE IN THE SAID PROPERTY ALONG WITH OTHER 4 MEMBE RS. VALUE OF THE PROPERTY AS PER THE STAMP DUTY PURPOSES IS AROUND R S.13.38 CRORES (ROUNDED OFF). HOWEVER, AS PER RECORDS, HER SHARE OF SALE CONSIDERATION OF THE PROPERTY IS AROUND RS.1 CRORE IN EQUAL PROPO RTION. THIS PROPERTY WAS REFERRED TO THE VALUATION DURING THE REMAND PRO CEEDINGS. HOWEVER, THERE WAS DELAY IN RECEIPT OF THE SAID DVOS REPORT BY THE AO AND THE ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 8 ASSESSMENT WAS COMPLETED CONSIDERING THE ASSESSEES SHARE OF CONSIDERATION AT RS.2,67,54,510/- OUT OF RS.13.38 C RORES. AFTER REDUCING THE ACCOUNTED PORTION OF RS.1 CRORE, THE A O PROCEEDED TO MAKE ADDITION OF THE BALANCE AMOUNT OF RS.1,67,54,5 10/- U/S.50C OF THE ACT (RS.2,67,54,510 RS.1,00,00,000/-). 18. DURING THE FIRST APPELLATE PROCEEDINGS, THE CIT (A) RECEIVED THE SAID VALUATION REPORT OF THE DVO AND FOUND THE DVO S VALUE IS MUCH LESS THAN THE SAID FIGURE OF RS.13.38 CRORES. CONS IDERING THE OBJECTIONS RAISED BY THE ASSESSEE BEFORE THE CIT(A), THE MATTE R WAS ONCE AGAIN REFERRED TO THE DVO. AS PER THE VALUATION SUBMITTED BY THE DVO, THE PROPERTY VALUE WAS CONCLUSIVELY DETERMINED AT RS.6, 72,51,553/- AGAINST THE SUB REGISTRARS PRICE OF RS.13.38 CRORE S. LD.CIT(A) CONSIDERED THE DVOS FINAL REPORT WHICH REITERATED THE FIGURE OF RS.6,72,51,553/- AND, AS PER THE DISCUSSION GIVEN I N PARA NO.7.2.2 OF HIS ORDER, THE CIT(A) DELETED THE ENTIRE ADDITION M ADE BY THE AO IN THE ASSESSMENT. THE SAID PARA IS RELEVANT AND THE RELE VANT LINES ARE EXTRACTED AS UNDER : 7.2.2. . . . . . . . .IN VIEW OF THE LEGAL POSITIO N AND DECISIONS OF THE VARIOUS COURTS, AO WAS NOT JUSTIFIED IN TAKING THE VALUE AS CERTAINED BY STAMP DUTY VALUATION OFFICER AS FMV OF THE PROPERTY. AO WAS REQUIRED TO ADOPT THE DVOS VALUATION AS FMV. HOWEVER, SINCE IT WAS NOT AVAILABLE AT THE TIME OF FINALIZATION OF THE ASSESSMENT PROCEEDINGS ON 21-12-2011, AO SHOULD HAVE TAKEN THE NECESSARY REMEDIAL ACTION POS T ASSESSMENT ORDER. THE AO SEEMS TO BE UNDER A MISTAKEN BELIEF THAT THE DVOS VALUATION IS NOT BINDING ON THE AO. IN MY CONSIDERED OPINION TH IS VIEW IS TOTALLY IN DISREGARD TO THE PROVISIONS OF SEC.50C THAT THE AO HAS SUPPLIED IN THE CASE OF THE APPELLANT. IN VIEW OF THE ABOVE ADDITI ON OF RS.1,67,54,510/- IS NOT LEGALLY SUSTAINABLE AND HENCE DELETED, I FIND THAT ON SIMILAR FACTS IN THE CASE OF SHRI RAHUL BAFNA, THE MATTER H AS BEEN DECIDED IN FAVOUR OF THE APPELLANT VIDE ME APPEAL ORDER NO.NSK /CIT(A)- II/390/11/12, DT.31-12-2012. 19. SUBSEQUENTLY, THE CIT(A) AMENDED HIS ORDER AND CONCLUSIONS ARE GIVEN IN PARA 7.2.2 OF HIS ORDER. CIT(A) INVOKED TH E PROVISIONS OF SECTION 154 OF THE ACT AND RECTIFIED HIS ORDER VIDE HIS ORD ER DATED 13-01-2015 RESTRICTING THE ADDITION TO RS.34,50,311/- ONLY AGA INST THE ORIGINAL ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 9 ADDITION OF RS.1,67,54,510/- (SUPRA). IN THIS ORDE R, THE CIT(A) CONSIDERED THE DVOS FIGURE OF RS.6,72,51,553/- AND DISTRIBUTED THE SAME AMONG THE 5 CO-OWNERS OF THE PROPERTY AND DETE RMINED THE SHARE OF EACH CO-OWNER AT RS.1,34,50,311/-, AFTER GIVING CREDIT TO THE ACCOUNTED CONSIDERATION OF RS.1 CRORE, THE BALANCE TO BE TAXED U/S.50C OF THE ACT, IS DETERMINED AT RS.34,50,311/- (RS.6,7 2,51,553/5 = RS.134,50,311/- - RS.1,34,50,311 RS. 1 CRORE = RS .34,50,311/-) 20. AGGRIEVED WITH THE SAID ADDITION OF RS.34,50,31 1/- AFTER RECTIFICATION AS WELL AS AGGRIEVED WITH THE ORIGINA L ADDITION OF RS.1,67,54,510/-, IN TOTO, THE ASSESSEE HAS RAISED THE SAID GROUND NO.4 AS WELL AS 3 OTHER GROUNDS VIDE ITA NO.447/PUN /2015 (RELATING TO PROCEEDINGS U/S.154 OF THE ACT. IN THIS APPEAL ASSESSEE RAISED THE OBJECTIONS AGAIN ST RECTIFICATION DONE BY THE CIT(A) AND DEMANDED CANCELLATION OF THE SAME. HOWEVER, DURING THE ASSESSMENT PROCEEDINGS BEFORE US, LD. CO UNSEL FOR THE ASSESSEE FAIRLY SUBMITTED THAT THESE ISSUES GETS CO VERED BY THE ADJUDICATION OF THE TRIBUNAL IF ANY IN THE PRESENT APPEAL VIDE GROUND NOS. 4 TO 6 RAISED IN THE MAIN APPEAL OF THE ASSESS EE. ACCORDINGLY, THE SAID APPEAL NO.447/PUN/2015 IS DISMISSED. WE SHALL DEAL WITH ALL THESE GROUNDS IN A COMPOSITE MANNER IN THE NEXT PARAGRAPH ALONG WITH CROSS APPEALS. 21. IN THIS REGARD, RELATING TO ADDITION U/S.50C OF THE ACT R.W.S. 154 OF THE ACT, LD. COUNSEL FOR THE ASSESSEE FILED THE FOLLOWING WRITTEN SUBMISSIONS : 1. THOUGH THE DEVELOPMENT AGREEMENT WAS REGISTERED ON 02-04-2008, IN FACT THE POSSESSION OF THE PROPERTY WAS GIVEN ON 01-08-2007. REFER PAGE NOS. 46 & 47 OF PAPER BOOK FILED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT FILE D A REPLY DT. 20-12-2011 AS TO WHY THE IMPUGNED ADDITION BE N OT MADE AND THE SAID REPLY HAS BEEN REPRODUCED BY THE LEARNED AO. I N HIS IMPUGNED ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 10 ASSESSMENT ORDER. BUT THE LEARNED AO MECHANICALLY MADE THE ADDITION. HOWEVER BOTH THE LOWER AUTHORITIES HAVE HELD THAT T HE VALUE OF THE PROPERTY AS ON 02-04-2008 HAD TO BE CONSIDERED FOR MAKING ADDITION U/S.50C OF THE I.T. ACT, 1961 AND ACCORDINGLY THE A DDITION HAS BEEN MADE. 2. THE PLANS WERE SUBMITTED TO NASHIK MUNICIPAL COR PORATION ON 28-12-2007. 3. AL L THE WORKS REGARDING DEVELOPMENT OF LANDS WERE IMME DIATE L Y STARTE D AFTER 0 1-08-2007. 4. THE STA M P D U TY OF RS.3,94,500 . 00 WAS PAID ON 28-12-2007 . BUT T H E DOCUMENT COULD NOT BE EXECUTED DUE TO SOME DIFFICUL TIES. 5. THE DOCUMENT WAS FINALLY EXECUTED ON 02-04-2008 WHEN ADDITIONA L STAMP DUTY OF RS.9 , 37,300.00 WAS PAID AS THE STAMP DUTY VA L UATION RATES SHOT UP. THE DVO HAS ALSO TAKEN NOTE OF THIS FACT I N HIS REPORT. 6. THE HON.ANDHRA PRADESH HIGH COURT AT HYDERABAD IN ITA NO.501 OF 2013 IN THE CASE OF CIT VS SHRI S.VENKAT REDDY HAS HELD THAT TRANSFER IS COMPLETE UNDER IT. ACT 1961, AS SOON AS THE POSSESS ION OF THE PROPERTY IS GIVEN AND THE REGISTRATION OF THE DOCUMENT IS A MER E FORMALITY AND HAS HELD THAT MARKET VALUE AS ON THE DATE OF POSSESSION IS T O BE TAKEN [COPY OF DECISION ALONG WITH DECISION OF HON. ITAT FILED HER EWITH] THEREFORE THE VALUE OF THE PROPERTIES ON 1-08-2007 BE CONSIDERED. 7. THE APPELLANT SUBMITS THAT THERE IS A CALCULATION MISTAKE COMMITTED BY THE LEARNED C.I.T.[A] WHILE DIRECTING IN HIS ORDER PASSED U/S 154 OF THE IT. ACT TO TAKE 1/5 VALUE OF THE PROPERT Y I.E. 1/5 OF RS.6,72,51,553.00 WHICH INCLUDES RS.1,07,41,941.00 BEING THE VALUATION OF SEPARATE PROPERTIES OF MR.RAHUL BAFNA THUS THE VALU ATION OF THE PROPERTY HELD JOINTLY BY THE APPELLANT WITH THREE OTHERS WORKS OU T TO RS.5,65,09,612.00 AND THE VALUATION OF 1/4 SHARE OF THE APPELLANT WORKS OUT TO RS.1,41,27,403.00. THEREFORE IF AT ALL ANY ADDITION IS TO BE MADE IT W OULD BE OF RS.41,27,403.00. 22. FURTHER, BRINGING OUR ATTENTION TO VARIOUS ADDITION AL GROUNDS (NO. 1 & 2) RAISED BEFORE US, LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT THESE GROUNDS ALSO HAVE NEXUS TO GROUND NO.4 DISCUS SED ABOVE. WHILE ADDITIONAL GROUND NO.1 DEALS WITH APPLICABILITY OF PROVISIONS OF SECTION 45(3) OF THE ACT QUA THE SECTION 50C OF THE ACT, THE ADDITIONAL GROUND NO.2 DEALS WITH THE NATURE OF THE PROPERTY IF THE S AME CONSTITUTES STOCK IN TRADE, IN WHICH CASE THE PROVISIONS OF SECTION 5 0C HAS NO APPLICATION IN THE RELEVANT ASSESSMENT YEAR. 23. BEFORE US, LD. COUNSEL FOR THE ASSESSEE ARGUED THAT PROVISIONS OF SECTION 45(3) OF THE ACT OVERRIDES THE PROVISIONS O F SECTION 50C OF THE ACT AND THEY ARE NOT MUTUALLY EXCLUSIVE. FAIRLY ME NTIONING THAT WHOLE ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 11 OF THESE ISSUES NEEDS TO REVISIT TO THE FILE OF THE AO FOR COMPREHENSIVE ADJUDICATION OF THE VARIOUS ASPECTS OF THE ISSUES R AISED IN GROUNDS AS WELL AS IN THE ADDITIONAL GROUNDS, LD. COUNSEL SUBM ITTED THAT PROVISIONS OF SECTION 50C OF THE ACT HAVE NO APPLIC ATION TO THIS PROPERTY, WHICH HAS BECOME THE STOCK-IN-TRADE OF TH E FIRM TO THE EXTENT THE PARTNER TRANSFERRED HER SHARE OF PROPERTY IN WH ICH ASSESSEE IS A PARTNER. FURTHER, LD. AR ALSO IDENTIFIED CERTAIN B ONAFIDE MISTAKES OCCURRED IN THE RECTIFICATION ORDER PASSED BY THE C IT(A) U/S.154 OF THE ACT AND SUBMITTED THAT ADDITION, IF ANY, SHOULD BE RESTRICTED TO ONLY RS.43,27,403/- AND NOT RS.34,50,311/-. IN THIS REG ARD, LD. AR BROUGHT OUR ATTENTION TO THE WRITTEN SUBMISSION IN ITEM NO.7 EXTRACTED IN PARA 21 ABOVE. 24. PER CONTRA, LD. DR FOR THE REVENUE RELIED HEAVI LY ON THE ORDERS OF THE AO AND THE CIT(A) AND SUBMITTED THAT LOWER AUTH ORITIES HAVE RIGHTLY APPLIED THE PROVISIONS OF SECTION 50C OF TH E ACT AS THE ASSET TRANSFERRED BY THE PARTNER DOES NOT CONSTITUTE STOC K IN TRADE IN THE HANDS OF THE ASSESSEE OR THE FIRM. REFERRING TO TH E ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE PROVISIONS OF SECTION 45(3) OF THE ACT OVERRIDES THE PROVISIONS OF SECTION 50C OF THE ACT, LD. DR RELIED ON THE DECISION OF THE LUCKNOW BENCH OF THE TRIBUNAL I N THE CASE OF CARLTON HOTEL PVT. LTD. VS. ACIT IN ORDER DATED 14- 11-2008. 25. ON HEARING BOTH THE SIDES, WE FIND THE ISSUES R AISED IN GROUND NO.4/ADDITIONAL GROUND NOS. 4, 5 & 6 REQUIRES FRESH CONSIDERATION AND COMPREHENSIVE ADJUDICATION BY THE LOWER AUTHORITIES . WE FIND THE DVOS REPORT WAS NOT AVAILABLE WHEN THE ASSESSMENT WAS ORIGINALLY FINALIZED VIDE AOS ORDER DATED 21-12-2011. AO REL IED HEAVILY ON THE SUB REGISTRAR OFFICE PRICE OF THE PROPERTY RATHER T HAN THE FAIR MARKET VALUE AS DETERMINED BY THE DVO. CIT(A) DELETED THE ENTIRE PENALTY ON ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 12 TECHNICAL GROUNDS AS PER THE DISCUSSION GIVEN IN PA RA 7.2.2 OF HIS ORDER. HOWEVER, HE RECTIFIED HIS ORDER AND ADOPTED AN EXPERTS FIGURE OF RS.6,72,51,553/-. THE SAID AMOUNT WAS DIVIDED EQUA LLY AMONG THE 5 CO-OWNERS BEFORE CONFIRMING THE AMOUNT OF RS.34,50, 311/- IN THE ASSESSEES HANDS. ASSESSEES COUNSEL HAS NOT ONLY QUESTIONED HIS COMPUTATION AND THE DIVISION OF PROPERTY QUA MR.RAHUL BAFNA ANOTHER CO-OWNER OF THE OTHER PROPERTIES. IT IS THE COUNSE LS ARGUMENT THAT THE FAIR MARKET VALUE OF RS.6,72,51,533/- IS REQUIRED T O BE ADJUSTED TO ARRIVE AT A FIGURE OF RS.5,65,09,612/- AFTER EXCLUD ING THE FIGURE OF RS.1,07,41,941/- (THE VALUE OF THE PROPERTY SOLD BY MR. RAHUL BAFNA). AO NEEDS TO VERIFY THESE CALCULATIONS AND THE OWNER SHIP OF THE PROPERTIES. IN THAT CASE ADJUSTED FIGURE OF RS.5,6 5,09,612/- IS REQUIRED TO BE ADJUSTED AMONG 4 CO-OWNERS ONLY. IN THAT CAS E, ASSESSEE SHARE COMES TO RS.1,41,27,403/-. AFTER GIVING CREDIT TO THE ACCOUNTED SUM OF RS.1 CRORE IN THE BOOKS OF ACCOUNT, THE BALANCE REQ UIRED TO BE ADDED IS RS.43,27,403/- AND NOT THE LESSER AMOUNT OF RS.34,5 0,311/-, AS ADOPTED BY THE CIT(A) IN HIS ORDER. TO THAT EXTENT OF RS. 6,77,092/-, (RS.41,27,403 RS.34,50,311), THERE IS LOSS TO THE REVENUE. FURTHER, WE FIND THE DECISION OF THE ANDHRA PRADESH HIGH COU RT IN THE CASE OF CIT VS. S. VENKAT REDDY VIDE ITA NO.501/2013 WAS NO T CONSIDERED WHICH IS RELEVANT FOR THE PROPOSITION THAT DATE OF POSSESSION OF PROPERTY PREVAILS OVER THE DATE OF REGISTRATION OF PROPERTY FOR THE PURPOSE OF DETERMINATION OF THE MARKET VALUE. AS PER THE LD. COUNSEL FOR THE ASSESSEE, THE DATE FOR DETERMINING THE VALUE OF THE PROPERTY REQUIRED TO BE CONSIDERED IS 01-08-2007. CONSIDERING THE LARGE NUMBER OF ISSUES AND THE ARGUMENTS RAISED BY THE LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE VIEW THAT THERE IS A NEED FOR BRINGING OUT T HE FACTS RELATING TO THE OWNERSHIP OF THE PROPERTY, REQUIREMENT OF EXCLUSION OF RS.1,07,41,941/- OF MR. RAHUL BAFNA, THE DATE OF RE GISTRATION OF ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 13 PROPERTY VS. THE DATE OF POSSESSION OF THE PROPERTY QUA THE APPLICABILITY OF JUDGMENT OF HONBLE ANDHRA PRADESH HIGH COURT (S UPRA), WHETHER THE PROPERTY TRANSFERRED BY THE PARTNER TO THE FIRM CONSTITUTES STOCK IN TRADE OR OTHERWISE ETC. 26. ON HEARING BOTH THE PARTIES ON THIS ISSUE, IN T HE REMAND PROCEEDINGS, WE DIRECT THE AO TO EXAMINE ALL THE AB OVE REFERRED ASPECTS OF THE ISSUE AND DECIDE THE REQUIREMENT OF MAKING A DDITION IN THE HANDS OF THE ASSESSEE U/S.50C OF THE ACT. AO SHALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN CONNE CTION WITH THE SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, GROUND NO. 4 AND THE ADDITIONAL GROUNDS RAISED IN HIS CHART (GROUND NOS. 5 AND 6) ARE ADMITTED AND ALLOWED FOR STATISTICAL PURPOSES. 27. GROUND 3 RAISED BY THE ASSESSEE AT ISSUE NO.7 O F HIS CHART WAS NOT PRESSED. ACCORDINGLY, THE SAID GROUND IS DISMI SSED AS NOT PRESSED. 28. ADDITIONAL GROUND NO.4 RAISED AT ISSUE NO.8 OF HIS CHART DEALS WITH DIRECTION GIVEN BY THE CIT(A) TO THE AO TO TAK E FOLLOW UP ACTION, IF ANY, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2 8(IV) OF THE ACT. CIT(A) NOTICED THAT THE ASSESSEE PURCHASED COMMERCI AL PROPERTY FROM HER FIRM AT THE RATE OF SALE PRICE/SQ.FT., WHICH IS LESSER THAN THE MARKET RATE. ACCORDING TO CIT(A), THE DIFFERENCE IN THE S AID RATE CONSTITUTES A TAXABLE BENEFIT U/S.28(IV) OF THE ACT. THEREFORE, THE CIT(A) GAVE THE SAID DIRECTION TO THE AO. 29. IN THIS REGARD, RELEVANT FACTS ARE THAT THE ASS ESSEE PURCHASED COMMERCIAL PROPERTY/SHOPS FROM M/S. BAFNA BUILDERS AND LAND DEVELOPERS, THE FIRM IN WHICH THE ASSESSEE IS A PAR TNER. THIS ISSUE WAS DISCUSSED AT LENGTH IN CONNECTION WITH GROUND NO.1 OF THE REVENUES ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 14 APPEAL FOR THE A.Y. 2009-10 VIDE ITA NO.902/PUN/201 3. IT IS THE ALLEGATION OF THE REVENUE THAT THE FIRM CONFERRED B ENEFIT TO THE EXTENT OF RS.2,44,62,169/-. AO INVOKED THE PROVISIONS OF SEC TION 28(IV) OF THE ACT ON THE FIRM. CIT(A), IN THE CASE OF THE FIRM, DELETED THE ADDITION HOLDING THAT THERE IS SUSTAINABLE REASONS FOR THE F IRM FOR SELLING THE PROPERTY AT LOWER SALE PRICE TO MS. TARADEVI RATANL AL BAFNA, THE PRESENT ASSESSEE. SOME OF THE REASONS INCLUDE THE PAYMENT OF ADVANCE OF RS.5 CRORES TO THE FIRM BY MS. TARADEVI RATANLAL BAFNA W ELL BEFORE THE COMMENCEMENT OF THE CONSTRUCTION APART FROM MANY OT HER REASONS. IN ANY CASE, THE PROVISIONS OF SECTION 28(IV) OF THE A CT APPLIES ON THE RECIPIENTS BENEFITTED AND NOT THE FIRM-GIVER. ACCO RDINGLY, THE CIT(A) DELETED THE ADDITION AND THE REVENUE WAS IN APPEAL ON THIS RELIEF. THIS ISSUE WAS DEALT BY THE TRIBUNAL IN PARA NOS. 20 TO 24 OF THE SAID TRIBUNALS ORDER IN THE CASE OF THE M/S. BAFNA BUIL DERS AND LAND DEVELOPERS (SUPRA). THE TRIBUNAL CONFIRMED THE SAI D DECISION OF THE CIT(A) HOLDING THAT 24 THEREFORE, THE PROVISIONS OF SECTION 28(IV) I S NOT RELEVANT TO THIS ISSUE. THE SAID PROVISIONS ARE RELEVANT, WHEN THE BENEFIT IS ACCRUED TO THE ASSESSEE AND NOT IN A CASE LIKE THE PRESENT ONE WHERE THE ASSESSEE IS A SELLER AND THE DISCOUNT IS ALLOWED TO THE PART NER OF THE FIRM. ACCORDINGLY, WE ARE OF THE VIEW THAT THE DECISION O F CIT(A) IS PLAUSIBLE VIEW TAKEN BY HIM AND IT DOES NOT REQUIRE ANY INTER FERENCE. ACCORDINGLY, GROUND NO.1 AND 2 RAISED BY THE REVENUE ARE DISMISS ED. 30. THEREFORE, THE ISSUE OF APPLICABILITY OF SECTIO N 28(IV) OF THE ACT IS REQUIRED TO BE ANALYSED AT LENGTH IN THE CASE OF TH E PRESENT ASSESSEE, THE BENEFICIARY OF THE BENEFIT. 31. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT THE PROVISIONS OF SECTION 28(IV) ARE NOT APPLICABLE TO THE ASSESSEE WHO HAPPENED TO PURCHASE PART OF THE CONSTRUCTED AREA W HICH CONSTITUTED STOCK IN TRADE. HE ALSO MADE VARIOUS ARGUMENTS IN SUPPORT OF THE SAID CLAIM. IN THE CHART SUBMITTED BY LD. COUNSEL FOR T HE ASSESSEE HE ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 15 SUBMITTED THAT THE SAID PURCHASE TRANSACSTION CONST ITUTES THE TRANSACTION OF WITHDRAWAL OF THE STOCK IN TRADE AT COST PRICE AND THE SAME OUTSIDE THE SCOPE AND AMBIT OF PROVISIONS OF S ECTION 28(IV) OF THE ACT. 32. PER CONTRA, LD. DR FILED THE WRITTEN SUBMISSION S WHICH READ AS UNDER : 4. IN OUR CASE, THE AO HAS TAXED IT UNDER SECTION 2 8(IV) I . E. PERQUISITE OR BENEFIT ACCRUED TO ASSESSEE IN EXERCISE OF DOING BU SINESS. HERE, THE ASSESSEE GOT SHOPS AT CONCESSIONAL RATE AS SHE IS A 60% PART NER OF THE FIRM. SO IT IS CLEARLY A BENEFIT AS PER SECTION 28(IV). THE AO HAS SPELT OUT IN THE DETAIL THE BENEFIT ACCRUED TO ASSESSEE BY COMPARING THE SALE O F SHOPS TO OTHER UNRELATED PARTIES. 5. DURING THE COURSE OF HEARING, THE LD. AR ALSO TO OK THE PLEA THAT ASSESSEE HAD GIVEN RS 5 CRORES AS ADVANCE TO THE FIRM. HOWEV ER, IT WAS NOT CLEAR FOR WHAT PURPOSE THE ADVANCE WAS GIVEN . AS IT IS CLEAR FROM THE BOOKS OF ACCOUNTS OF ASSESSEE, THERE ARE MANY LAYERS OF TRAN SACTIONS BETWEEN THE ASSESSEE AND THE FIRM. FOR WANT OF CLARITY, THE ADV ANCE OF RS. 5 CRORES TO FIRM CANNOT BE LINKED WITH THE TRANSACTION OF SHOPS AT C ONCESSIONAL PRICE. BENEFIT ACCRUED TO THE ASSESSEE STANDS UNDISPUTED. 33. WE HEARD BOTH THE SIDES ON THE ISSUE OF APPLICA BILITY OF SECTION 28(IV) OF THE ACT. WE FIND THIS ISSUE REQUIRES REMA NDING TO THE FILE OF AO FOR FRESH CONSIDERATION BOTH ON FACTS AS WELL AS TH E LAW. AO IS DIRECTED TO PASS A SPEAKING ORDER ON THE ISSUE IF THE BENEFI TS ARE ACTUALLY FLOWN TO THE ASSESSEE. IF THE ANSWER IS YES, THEY FALL WITHIN THE SCOPE OF SECTION 28(IV) OF THE ACT. AO SHALL ALSO ADJUDICAT E EACH AND EVERY ARGUMENT RAISED BEFORE HIM ON THIS ISSUE BY THE COU NSEL BY PASSING A SPEAKING ORDER ACCEPTING OR REJECTING THE ARGUMENTS OF THE ASSESSEE. FURTHER, ON THE ISSUE OF GIVING DIRECTION BY THE CI T(A), WE FIND THE REQUIREMENT OF GOING INTO THE BACKGROUND FACTS OF T HE SAID DIRECTION. FOR THIS, WE PERUSED THE RELEVANT TEXT OF THE DIREC TION FROM THE ORDER OF THE CIT(A). ON PERUSAL OF THE SAME, WE FIND THE SA ID DIRECTION IS ABSOLUTELY SUPERFLUOUS AND UNWARRANTED AS MENTIONED IN PARA ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 16 NO.6.5.5 AT PAGE 44 OF THE ORDER OF CIT(A) AND THE RELEVANT LINES CONTAINING THE DIRECTION IS EXTRACTED HERE ASUNDER : 6.5.5 . . . . . . . . . . . THE AO IS HOWEVER DIRE CTED TO TAKE THE FOLLOW UP ACTION IF ANY, IN THIS REGARD IN THE YEAR WHEN SALE DEED IS REGISTERED IN FAVOUR OF SMT. TARADEVI BAFNA. THE ABOVE DIRECTION OF THE CIT(A) HAS A BACKGROUND AND THE SAME IS EVIDENT IN THE PRECEDING LINES OF THE SAID PARA NO.6.5.5. WE DISCUSSED THE RELEVANT FACTS IN THE PRECEDING PARAG RAPHS OF THIS ORDER. WE HAVE ALSO CONSIDERED THE WRITTEN SUBMISSIONS FIL ED BY THE LD. COUNSEL FOR THE ASSESSEE VIDE LETTER DATED 13-11-20 17 (PARA NO.4). TO BRIEF THE SAME, THIS IS A CASE WHERE THE ASSESSEE P URCHASED COMMERCIAL PREMISES FOR A LESSER CONSIDERATION QUA THE FAIR MA RKET VALUE OF THE SAME. ORIGINALLY, THE AO TAXED THE DIFFERENTIAL CO ST U/S.28(IV) OF THE ACT IN THE HANDS OF THE FIRM WHO SOLD THE COMMERCIAL PR EMISES TO THE ASSESSEE. THE ASSESSEE HAS 60% SHAREHOLDER IN THE SAID FIRM BY NAME M/S. BAFNA BUILDERS AND LAND DEVELOPERS. IT IS THE FINDING OF THE CIT(A) THAT THE ASSESSEE GOT THE BENEFIT TO THE TUN E OF RS.2,44,62,169/-. IT IS THE FINDING OF THE TRIBUNAL AS WELL AS THE CI T(A) THAT THE SAID AMOUNT IS NOT TAXABLE IN THE HANDS OF THE FIRM. IN THE BACKGROUND OF THESE FACTS, THE CIT(A) HAVE G IVEN THE ABOVE DIRECTION, WHICH IN OUR VIEW IS CONSEQUENTIAL COMME NT OF THE CIT(A) EVEN IF THE SAID DIRECTION IS ABSENT IN THE SAID PA RAGRAPH, THE AUTHORITIES BELOW WOULD ANYWAY INITIATE THE CONSEQU ENTIAL PROCEEDINGS. FROM THAT POINT OF VIEW, WE ARE OF THE VIEW THAT TH E DIRECTION GIVEN BY THE CIT(A) DOES NOT WARRANT ANY AMENDMENT. THEREFO RE, THE ARGUMENT OF THE ASSESSEES COUNSEL EXTRACTED ABOVE IN THIS R EGARD ARE RELEVANT WHEN CONSEQUENTIAL EFFECT IF ANY, IS TO BE GIVEN IN THE COURSE OF THE PROCEEDINGS BEFORE THE AO. THEREFORE, WE ARE OF TH E OPINION THAT THE IMPUGNED DIRECTION PER SE IS CONSEQUENTIAL. THEREF ORE, THE ADDITIONAL ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 17 GROUND NO.4 OF THE APPEAL RAISED BY THE ASSESSEE IS ADMITTED AND DISMISSED. 34. IN THE RESULT, ITA NO.447/PUN/2015 FILED BY THE ASSESSEE IS DISMISSED AND ITA NO.732/PUN/2013 FILED BY THE ASSE SSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.904/PUN/2013 A.Y. 2009 - 10 35. GROUNDS RAISED BY THE REVENUE ARE AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A)-II, NASHIK ERRED IN GRANTING THE RELIEF O F RS.7,87,262/- AS AGAINST ADDITION MADE OF RS.10,87,262/- ON ACCOUNT OF VEHICLE EXPENSES AND DELETED THE ADDITION OF RS.1,00,000/- ON ACCOUN T OF SHOP EXPENSES. THESE ADDITIONS IS MADE BY ASSESSING OFFICER AFTER TAKING INTO CONSIDERATION THE FACTUAL POSITION. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A)-II, NASHIK ERRED IN DELETING THE ADDITION MADE BY AO ON ACCOUNT OF BOXES OF RS.15,00,000/-. THE ADDITIONS IS MADE BY ASSESSING OFFICER AFTER TAKING INTO CONSIDERATION THAT BOXES/BAG HAVE CLEAR CUT NE XUS WITH SALES. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A)-II, NASHIK ERRED IN DELETING THE ADDITION MADE BY AO ON ACCOUNT OF KAVI SAMELAN EXPENSES OF RS.2,15,675/-. THE ADDITIONS I S MADE BY ASSESSING OFFICER AFTER TAKING INTO CONSIDERATION T HAT ORGANIZATION OF SUCH FUNCTION IS A PERSONAL PRIDE AND TO SHOW THE STATUS IN SOCIETY AND NOT FOR BUSINESS PURPOSE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A)-II, NASHIK ERRED IN DELETING ADDITION ON ACCOUNT OF BUS INESS PROFIT U/S.28(IV) OF RS.2,44,62,169/-. THE ADDITIONS IS MADE BY ASSE SSING OFFICER AFTER TAKING CONSIDERATION THAT FIRM HAS SOLD TWO SHOPS T O ITS PARTNER FOR THE PRICE LESS THAN MARKET PRICE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A)-II, NASHIK ERRED IN DELETING ADDITION OF RS.2,55,550/- MADE BY THE AO U/S.40A(2)(B). THE ADDITIONS IS MADE BY ASSESSING OFFICER FOR INCREASE IN SALARY & BONUS AS COMPARED TO LAST YEAR. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D.CIT(A)-II, NASHIK ERRED IN GRANTING THE RELIEF OF RS.10,41,440/- ON A CCOUNT OF DISALLOWANCE U/S.14A R.W.R 8D. THE ADDITIONS IS MADE BY ASSESSI NG OFFICER AFTER CONSIDERING THE DIVERTED BORROWED FUNDS AND GIVEN I NTEREST FREE ADVANCES. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D.CIT(A)-II, NASHIK ERRED IN DELETING OF RS.1,67,54,510/- MADE BY AO U/ S.50C OF ACT. THE ADDITIONS IS MADE BY ASSESSING OFFICER AFTER TAKING OUT THE BASE OF STAMP DUTY VALUATION IN VIEW OF PROVISIONS OF SECTI ON 50C OF THE I.T. ACT, 1961. ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 18 36. GROUND NO.1 RAISED BY THE REVENUE RELATES TO GR ANTING RELIEF OF RS.7,87,262/- AGAINST ADDITION OF RS.10,87,262/- ON ACCOUNT OF VEHICLE EXPENSES. THIS GROUND RAISES THE ISSUE ON DELETION OF ADDITION OF RS.1 LAKH SHOP EXPENSES. 37. RELEVANT FACTS ARE DISCUSSED IN PARA 5 OF THE A SSESSMENT ORDER. ASSESSEE OWNS 11 CARS. 6 CARS OUT OF THEM ARE SHOWN AS FIXED ASSETS IN THE YEAR UNDER CONSIDERATION. CONSIDERING ABSENCE OF MAINTENANCE OF LOG BOOKS OF EACH VEHICLE AND ALSO CONSIDERING THE FACT THAT THE VEHICLES ARE HELD IN THE NAME OF SMT. TARADEVI BAFNA, THE AO REJECTED THE CLAIM OF THE ASSESSEE. AO COMMENTED BY STATING THAT THES E LUXURY VEHICLES ARE UTILIZED BY THE ASSESSEE AND THE FAMILY MEMBERS FOR PURPOSES MORE THAN THE BUSINESS USE. IN THE ABSENCE OF DETAILS, THE AO HELD AS UNDER: 5. . . . . . THE COST OF VEHICLES AND VARIETY OF VEHICLES SHOWN BY THE ASSESSEE CLEARLY SHOWS THAT THESE ARE LUXURY VEHICL ES AND THEREFORE ITS USE BY THE ASSESSEE AND BY HER FAMILY MEMBERS ARE M ORE THAN THE BUSINESS USE. HOWEVER, IN ABSENCE OF DETAILS FOR BU SINESS AND PERSONAL PURPOSES, THE ACTUAL USE CANNOT BE WORKED OUT VEHIC LE WISE. THEREFORE, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, I DISALLOW 50% OF EXPENSES INCLUDING DRIVERS SALARY AND DEPRE CIATION FOR PERSONAL USE AND ALLOW 50% FOR BUSINESS USE. AO WORKED OUT 50% DISALLOWANCE AT RS.9,95,788/-. F URTHER, AO ALSO DISALLOWED ANOTHER AMOUNT OF RS.91,474/- DEBIT ED TO THE PROFIT AND LOSS ACCOUNT. 38. CIT(A) GRANTED RELIEF TO THE TUNE OF RS.7,87,26 2/- AS PER THE DISCUSSION GIVEN IN PARA PARA NO.6.2.2 OF HIS ORDER HOLDING THAT THE DISALLOWANCE IS ON THE HIGHER SIDE. RELEVANT DISCU SSION IS EXTRACTED HERE AS UNDER : 6.2.2 . . . . . AO HAS MADE 50% DISALLOWANCE OF RS .19,91,576/- CLAIMED BY THE APPELLANT ON VEHICLE EXPENSES, DRIVERS SALA RY AND DEPRECIATION. IN MY CONSIDERED VIEW 50% DISALLOWANCE IS ON A VERY HIGHER SIDE. THE SAME IS RESTRICTED TO RS.3,00,000/- ROUGHLY 15% OF THE TOTAL EXPENSES. ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 19 39. CONSIDERING THE ABOVE REASONING GIVEN BY THE CI T(A), WE ARE OF THE VIEW THAT THE ORDER OF THE CIT(A) IS FAIR AND R EASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, RELEVA NT PART OF GROUND NO.1 BY THE REVENUE IS DISMISSED. 40. SO FAR AS THE DISALLOWANCE OF RS.1 LAKH ON ACCO UNT OF SHOP EXPENSES, WE FIND THE CIT(A) VIDE DISCUSSION GIVEN IN PARA NO.6.2.2 HELD AS UNDER: 6.2.2. . . . . .AS REGARDS DISALLOWANCES ON ACCOUN T OF PERSONAL USE AND SHOP EXPENSES, THERE IS NO DISPUTE THAT TEA/COFFEE/ COLD DRINKS ARE FREQUENTLY SERVED TO THE CUSTOMERS IN A JEWELLERY S HOW ROOM. I DONT THINK THAT THE APPELLANT WOULD CLAIM BOGUS EXPENSES ON TEA/COFFEE/COLD DRINKS. I THEREFORE, DELETE THE ADDITION OF RS.1 L AC MADE BY THE AO IN THIS REGARD. 41. THEREFORE, THE FINDING GIVEN BY THE CIT(A) DELE TING THE ADDITION OF RS.1 LAKH MADE BY THE AO IS FAIR AND REASONABLE AN D DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, THIS PART OF GROUND NO.1 BY THE REVENUE IS ALSO DISMISSED. 42. GROUND NO.2 RAISED BY THE REVENUE RELATES TO TH E ADDITION OF RS.15 LAKHS ON ACCOUNT OF BOXES, I.E. THE PACKING M ATERIAL. RELEVANT DISCUSSION IS GIVEN IN PARA NOS. 6.3 AND 6.3.1 OF T HE CIT(A)S ORDER. ASSESSEE DEBITED THE SAID EXPENSES ON ACCOUNT OF CO NSUMPTION OF BOXES, I.E. PACKING MATERIAL GIVEN TO THE CUSTOMERS ON EXTRA SALES OF GOLD ITEMS IN JALGAON BRANCH. ASSESSEE MADE CLAIM OF EXPENSES ON ACCOUNT OF PURCHASE OF PACKING MATERIAL AMOUNTING T O RS.21,75,879/- AND RS.5,88,189/- FOR AURANGABAD AND JALGAON BRANCH ES RESPECTIVELY ON THIS ACCOUNT OF PACKING MATERIAL. AO DISALLOWED RS.15 LAKHS OUT OF THE SAME ON ADHOC BASIS-CUM-ESTIMATIONS. ON THESE FACTS, CIT(A) HELD THAT EXERCISE OF DISALLOWANCE IS PURELY OUT OF SURM ISES AND DOUBT. THE ADDITION MADE BY THE AO DOES NOT HAVE ANY CORROBORA TIVE EVIDENCE. RELEVANT LINES FROM THE ORDER OF CIT(A) IS EXTRACTE D HERE ASUNDER : ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 20 6.3.1. . . . . . .CARRY BAGS ARE GIVEN LIBERALLY F OR PUBLICITY AND I AM OF THE CONSIDERED VIEW THAT THE APPELLANT WITH THIS SOCIAL AND ECONOMIC STANDING WILL NOT INDULGE IN INFLATING THE EXPENSES THROUGH BOGUS BOXES ACCOUNT. UNLESS SOME CORROBORATIVE EVIDENCE IS BRO UGHT ON RECORD SHOWING THAT THE APPELLANT HAS MADE BOGUS PAYMENT O N ACCOUNT OF ANY EXPENSE CLAIMED BY HER IN THE P&L A/C, NO ADDITION, SIMPLY ON ASSUMPTION OR THEORETICAL/CLASSROOM EXERCISE, CAN B E MADE. ANY ADDITION MERELY ON THE BASIS OF THEORETICAL EXERCIS E WILL NOT STAND TO THE TEST OF THE LEGAL SCRUTINY. IN VIEW OF THE ABOVE, I AM OF THE CONSIDERED OPINION THAT THE ADDITION OF RS.15 LAC MADE BY THE AO WITHOUT ANY CORROBORATIVE EVIDENCE IS NOT JUSTIFIED. THE SAME IS DELETED. 43. FROM THE ABOVE, IT IS A FACT THAT AO COULD NEIT HER BRING ANY CORROBORATIVE EVIDENCE THAT THE ASSESSEE HAS MADE B OGUS PAYMENTS NOR PROVE THE EXPENSES TO BE UNTRUE. THEREFORE, WE UPH OLD THE DECISION OF THE CIT(A) ON THIS ISSUE. 44. GROUND NO.3 RAISED BY THE REVENUE RELATES TO TH E DISALLOWANCE OF RS.2,15,673/- ON ACCOUNT OF KAVI SAMMELAN EXPENSES. RELEVANT FACTS INCLUDE THAT THE AO DISALLOWED THE SAID CLAIM OF EX PENSES HOLDING THE SAME AS NON BUSINESS EXPENDITURE. ASSESSEE HOLDS T HAT THE EXPENDITURE INCURRED ON HASYA KAVI SAMMELAN CONSTIT UTES AN ADVERTISEMENT FOR HER BUSINESS. CONSIDERING THE FA CT THAT THE ASSESSEE FAILED TO ESTABLISH THE NEXUS, THE AO DISALLOWED TH E SAID EXPENDITURE, IN THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) APPR ECIATED THE ASSESSEES CLAIM THAT THE SAME CONSTITUTES ADVERTIS EMENT EXPENDITURE. FURTHER, HE ELABORATED THE FACT THAT THE SAID FUNCT IONS ARE HELD TO BE PAYMENT AND NOT IN THE RESIDENTIAL PREMISES OF THE ASSESSEE AND THEREFORE ADVERTISEMENT VALUE OF THE SAID EXPENDITU RE WAS APPRECIATED AND THE ADDITION WAS DELETED BY THE CIT(A). RELEVA NT LINES FROM THE ORDER OF CIT(A) ARE EXTRACTED HERE ASUNDER : 6.4.1. . . . .THE FACT HOWEVER, REMAINS THAT THE F UNCTION WAS ORGANIZED BASICALLY FOR THE PURPOSE OF ADVERTISEMENT OF HER B USINESS. IT WAS A PUBLIC FUNCTION AND NOT SOMETHING WHICH WAS CONFINE D TO FOUR WALL OF HER RESIDENCE. IN VIEW OF THE ABOVE, I AM OF THE CONSI DERED OPINION THAT THE EXPENDITURE ON HASYA KAVI SAMMELAN WAS IN THE NATUR E OF BUSINESS EXPENDITURE AND AO WAS NOT JUSTIFIED IN DISALLOWING THE SAME. THE ADDITION OF RS.2,15,675/- IS DELETED. ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 21 45. THE ABOVE VIEW OF THE CIT(A) IS ONE PLAUSIBLE V IEW. THEREFORE THE ORDER OF CIT(A) HOLDING THE EXPENSES AS INCOME EXPE NSES AND CONSEQUENTLY DELETING THE EXPENSES INCURRED BY THE ASSESSEE ON HAYSA KAVI SAMMELAN DOES NOT WARRANT ANY INTERFERENCE FRO M OUR SIDE. ACCORDINGLY, GROUND NO.3 RAISED BY THE REVENUE IS D ISMISSED. 46. GROUND NO.4 BY THE REVENUE RELATES TO RELIEF GR ANTED BY THE CIT(A) IN CONNECTION WITH THE ARGUMENTS REVOLVING A ROUND THE APPLICABILITY OF PROVISIONS OF SECTION 28(IV) QUA A DDITION OF RS.2,44,62,169/-. THIS AMOUNT CONSTITUTES TAXABLE AS A BENEFIT IN THE HANDS OF THE ASSESSEE. THIS ISSUE WAS DEALT WHILE DEALING WITH GROUND NO.4 AND THE RELATED ADDITIONAL GROUND NO.4 OF THE APPEAL OF THE ASSESSEE. ACCORDINGLY, GROUND NO.4 RAISED BY THE R EVENUE IS ALSO REMANDED TO THE FILE OF AO FOR FRESH ADJUDICATION A S PER THE DIRECTION GIVEN BY US IN THE SAID APPEAL OF THE ASSESSEE. AC CORDINGLY, GROUND NO.4 RAISED BY THE REVENUE IS ALLOWED FOR STATISTIC AL PURPOSES. 47. GROUND NO.5 RELATES TO THE DELETION OF ADDITION OF RS.2,55,550/- U/S.40A(2)(B) OF THE ACT. THIS AMOUNT WAS CLAIMED AS PAYMENT OF SALARY AND BONUS TO THE EMPLOYEES. THE SAME CONSTI TUTES AN EXTRA AMOUNT PAID IN THIS YEAR QUA THE LAST YEARS CLAIM. 48. ON HEARING BOTH THE SIDES, WE FIND THE AO IS DU TY BOUND TO PROVE THE SALARY AND BONUS PAID TO THE EMPLOYEES AS UNREA SONABLE. CIT(A) HAS RIGHTLY HELD THAT THE ADDITION MADE THE AO IS O NLY ON ESTIMATE BASIS AND WITHOUT DISCHARGING THE ONUS. IN THIS VIE W OF THE MATTER, THE DECISION OF THE CIT(A) NEEDS TO BE APPROVED AND IN FAVOUR OF THE ASSESSEE. ACCORDINGLY GROUND NO.5 RAISED BY THE REV ENUE IS DISMISSED. ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 22 49. GROUND NO.6 BY THE REVENUE RELATES TO RELIEF OF RS.10,44,440/- ON ACCOUNT OF DISALLOWANCE U/S.14A R.W. RULE 8D OF THE ACT. THIS GROUND IS CONNECTED TO GROUND NO.2 OF THE ASSESSEE S APPEAL IN ITA NO.732/PUN/2013. WE HAVE REMANDED THIS ISSUE TO TH E FILE OF AO FOR FRESH ADJUDICATION. CONSEQUENTLY, THIS ISSUE BEING COMMON IN LAW SHOULD ALSO BE RE-EXAMINED BY THE AO AFTER CONSIDER ING THE ASSESSEES CLAIM AS WELL AS SETTLED LEGAL PROPOSITIONS ON THE ISSUE THAT THE DISALLOWANCE IS UNCALLED FOR WHEN ASSESSEE HAS EXCE SS INTEREST FREE FUNDS. AO IS DIRECTED TO APPLY RELEVANT BINDING JU DGMENTS ON THE ISSUE AFTER GRANTING REASONABLE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. ACCORDINGLY, GROUND NO.6 RAISED BY THE REVENUE IS A LLOWED FOR STATISTICAL PURPOSES. 50. GROUND NO.7 BY THE REVENUE PERTAINS TO DELETION OF ADDITION OF RS.1,67,54,510/- INVOLVING THE PROVISIONS OF SECTIO N 50C OF THE ACT. INFACT, THIS ISSUE SHARES WITH THE FACTS RELATING T O GROUND NO.4 OF THE ASSESSEES APPEAL AND ALSO THE ISSUES RAISED BY THE ASSESSEE IN THE APPEAL ITA NO.447/PUN/2015 IN CONNECTION WITH THE R ECTIFICATION ORDER PASSED U/S.154 OF THE ACT. 51. AS PER THE DISCUSSION GIVEN IN PARA NOS.21 TO 2 6 OF THIS ORDER ABOVE, WE ARE OF THE OPINION THAT THIS GROUND BY TH E REVENUE SHOULD ALSO BE REMANDED TO THE FILE OF AO WITH IDENTICAL D IRECTIONS GIVEN IN PARA NO.26 AND OTHERS. ACCORDINGLY, GROUND NO.7 BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 52. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.732 & 904/PUN/2013 & ITA NO.447/PUN/2015 SMT. TARADEVI RATANLAL BAFNA 23 53. TO SUM UP, ITA NO.447/PUN/2015 FILED BY THE ASS ESSEE IS DISMISSED AND THE CROSS APPEALS FILED BY THE ASSESS EE AND THE REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. OR DER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH DAY OF JANUARY, 2018. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 09 TH JANUARY, 2018. / COPY OF THE ORDER FORWARDED TO : BY ORDER // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE THE APPELLANT THE RESPONDENT THE CIT(A) - 2 , NASHIK CIT - 2 , NASHIK % , , A BENCH PUNE; / GUARD FILE.