B.J. DEVELOPMENT CORPORATION, MUMBAI V. ACIT 24(1), MUMBAI

ITSSA 27/MUM/2010

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8503 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 01-08-2012
• Assessment Year: misc
• Appeal Filed On: 25-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S C TIWARI; NATASHA MANGAT
• Keywords: Search and seizure; Period of limitation; Block assessment; Documents seized
• Section: 131; 132; 15; 143(3)

Judgement Text

, IN THE INCOME TAX APPELLA TE TRIBUNAL I BENCH, MUMBAI , . . , . . BEFORE SHRI VIJAYPAL RAO, JM & SHRI NARENDRA KUMAR BILLAIYA, AM ( ) ./ IT(SS) NO.27/MUM/2010 ( BLOCK PERIOD: 01-04-1996 TO 21-01-2003 ) M/S B. J. DEVELOPMENT CORPORATION , 1, VANASHREE, 37, MARVE ROAD, MALAD (W), MUMBAI-400 064 VS. ACIT-24(1), MUMBAI-20 ./ ./ PAN NO. AAAFB 0856 H ( / APPELLANT ) : ( / RESPONDENT ) /ASSESSEE BY : MR. S.C.TIWARI & MS. NATASHA MANGAT REVENUE BY : MR. VIJAY KUMAR JAISWAL / DATE OF HEARING : 1 ST AUGUST, 2012 / DATE OF PRONOUNCEMENT : 26 TH SEPT, 2012 / O R D E R PER VIJAY PAL RAO (J.M.) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 20-12-2009 OF CIT(A)-34, MUMBAI ARISING FROM BLOCK ASSESSMENT UNDER SECTION 158BD FOR THE BLOCK PERIOD 1-4-1996 TO 21-1-2003. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1) A) THE LD. CIT(A) ERRED IN CONFIRMING THE OR DER OF A.O. U/S 158BD R.W.S. 158BC OF THE ACT. B) THE LD. CIT(A) FURTHER ERRED IN IGNORING SUBMISSIONS OF THE APPELLANT THAT : I) THE ORDER OF A.O. PASSED U/S 15 8BD R.W.S. 158BC IS BARRED BY LIMITATION AS PROVIDED U/S 158BE. II) THE A.O. HAS PASSED THE ORDER WITHOUT RECORDING A SATISFACTION AS REQUIRED UNDER THE ACT. IT(SS) NO :27/10 2 C) THE LD. CIT(A) ERRED IN CO NFIRMING THE ORDER OF A.O. IN CONSIDERING ` .1,28,12,145/- AS UNDISCLOSED INCOME FOR BLOCK ASSESSMENT PERIOD U/S 143(3) R.W.S. 158BD OF THE ACT. D) THE LD. CIT(A) ERRED IN NOT C ONSIDERING THE ALTERNATIVE CLAIM OF THE APPELLANT THAT ADDITION OF UNDISCLOSED INCOME BE RESTRICTED TO ` .21,53,375/- (BEING 50% OF ` .43,10,750/-) AS DECLARED B CO-DEVELOPER RUSTOMJEE LANDMARK CONSTRUCTIONS PVT. LTD. 2. THE APPELLANT PRAYS THAT : A) THE ORDER PASSED BY THE A.O. BE ANNULLED AS THE SAME IS BARRED BY LIMITATION U/S 158BE AND IS WITHOUT RECORDING OF SATISFACTION AS REQUIRED UNDER THE ACT. B) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION OF ` .1,28,12,145/- AS UNDISCLOSED INCOME IS UNWARRANTED AND UNJUSTIFIED AND HENCE BE DELETED. 3. WITHOUT PREJUDICE TO THE ABOV E, THE APPELLANT PRAYS THAT UNDISCLOSED INCOME BE CONSIDERED AT ` .21,53,375/- (BEING 50% OF ` .43,10,750/-) AS DECLARED BY CO-DEVELOPER RUSTOMJEE LANDMARK CONSTRUCTIONS PVT. LTD. 2. A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 WAS CONDUCTED ON 21-1-2003 AT THE RESIDENTIAL AND BUSINESS PREMISES OF M/S KEYSTONE REALTORS PVT. LTD.. M/S RUSTOMJEE LANDMARK CONSTRUCTION PVT. LTD. (HEREINAFTER CALLED AS RLCPL) IS ONE OF THE GROUP COMPANIES OF KEYSTONE GROUP ENGAGED IN THE DEALING OF REAL ESTATES. IN CASE OF RLCPL, BLO CK ASSESSMENT U/S.143(3) R.W.S. 158BD HAS BEEN COMPLETED ON 31.03.2005 BY DCIT CENTRAL CIRCLE 10, MUMBAI. DURING THE COURSE OF SEAR CH, CERTAIN EVIDENCES WERE FOUND AND SEIZED FROM THE OFFICE OF RLCPL WHICH INDICATES THAT ON-MONEY WAS RECEIVED ON SALE OF FLATS IN TWO PROJECTS, NAMELY, RUSTOMJEE HERITAGE AND RUSTOMJEE ADARSH REGAL, WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNTS. IN THE BLOCK AS SESSMENT ORDER OF RLCPL, IT WAS HELD BY THE ASSESSING OFFICER T HAT THESE TWO PROJECTS, NAMELY, RUSTOMJEE HERITAGE AND RUSTOMJEE ADARSH REGAL, UNDERTAKEN BY IT(SS) NO :27/10 3 RLCPL AND B.J. DEVELOPMENT CORPORATION (ASSESSEE BEFORE US) UNDER CO-DEVELOPMENT/JOINT VENTURE. WHILE COMPLETING THE BLOCK ASSESSMENT IN THE CASE OF RLCPL, THE ASSESSING OFFICER HAS WORKED OUT THE AMOUNT OF ON-MONEY RECEIPT ON THE BASI S OF SEIZED MATERIAL INDICATING CHARGING ON-MONEY ON SALE OF FLATS IN THESE TWO PROJECTS AT ` .1,42,38,300/- REGARDING RUSTOMJEE HERITAGE AND ` .1,13,85,990/- REGARDING RUSTOMJEE ADARSH REGAL PROJECT, TOTAL AMOUNTING TO ` .2,56,24,290/-. SINCE THESE TWO PR OJECTS WERE UNDERTAKEN BY RLCPL AND BJ DEVELOPMENT CORPORATI ON (ASSESSEE BEFORE US) UNDER CO- DEVELOPMENT/JOINT VENTURE, THE ASSESSING OFFICER IN THE CASE OF RLCPL TAXED ONLY 50% OF THE SAID AMOUNT BEING ON-MONEY RECEIPT IN THE HAND OF RLCPL. 3. IN PURSUANCE TO THE BLOCK ASSESSMENT IN THE CASE OF RLCPL COMPLETED UNDER SECTION 143(3) READ WITH SECTION 158BD, THE ASSESSING OFFICER IN THE CASE OF ASSESSEE BEFORE US, RECEIVED A LETTER DATED 31-3-2005 FROM DCIT CENTRAL CI RCLE 30, MUMBAI. ON THE BASIS OF INFORMATION RECEIVED VIDE SAID CONFIDENTIAL LETTER DATED 31-3-2005, THE PROCEEDINGS UNDER SECTION 158BC WERE INITIATED BY ISSUING A NOTICE UNDER SECTION 158BD ON 10-5-2005. THE BLOCK ASSESSMENT IN THE CASE OF ASSESSEE BEFORE US WAS COMPLETED WHEREBY AN ADDITION OF ` .1,28,12,145/- BEING 50% OF THE ALLEGED ON-MONEY RECEIVED IN RESPECT OF RUSTOMJEE HERITAGE PROJECT AND ADARSH REGAL PROJECT WAS MADE VIDE ORDER DATED 31-5-2007. THE ASSESSEE CARRIED THE MATTER IT(SS) NO :27/10 4 UPTO THIS TRIBUNAL. SINCE THE ASSESSEE RAISED ADDITIONAL GROUNDS CHALLENGING THE VALIDITY OF ORDER PASSED UNDER SECTION 158BD R.W.S. 158BC FOR WANT OF INHERENT JURISDICTION OF THE ASSESSING OFFICER, THIS TRIBUNAL VIDE ITS ORDER DATED 2-9-2008 REMITTED THE MATTER BACK TO THE FILE OF THE CIT(A) WITH THE DI RECTION TO DECIDE THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE AS WELL AS OR IGINAL GROUNDS AFRESH ON MERITS IN ACCORDANCE WITH LAW. CONSEQUENTLY, THE CIT(A) HAS PASSED THE IMPUGNED ORDER, WHEREBY REJECTED THE ADDITIONAL GROUNDS REGARDING VALIDITY OF BLOCK ASSESSMENT PASSED UNDER SECTION 158BD AS WELL AS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ON-MONEY RECEIPT. 4. THIS IS THE SECOND ROUND OF LIT IGATION. THE LEARNED AR OF THE ASSESSEE HAS SUBMITTED THAT THE REQUIREMENTS OF THE PROVISION OF SECTION158BD HAVE NOT BEEN COMPLIED WITH IN THE CASE OF THE ASSESSEE AS THE PROCEEDINGS HAVE BEEN INITIATED IN PURSUANT TO THE BLOCK ASSESSMENT ORDER PASSED UNDER SECTION 158BD ON 31-3-2005 IN CASE OF RLCPL, WHEREIN ONLY THE 50% OF THE ON-MONEY RECEIPT WAS TAXED IN THE HANDS OF THE RLCPL. LEARNED AR OF THE ASSESSEE HAS CONTENDED THAT THE PROCEEDINGS UNDER SECTION 158BD CAN BE INITIATED ONLY WHEN THE ASSESSING OFFICER OF T HE SEARCH PARTY IS SATISFIED THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON OTHER THAN SUCH PERSON THEN THE BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAD BEEN HANDED OVER TO T HE ASSESSING OFFICER, HAVING IT(SS) NO :27/10 5 JURISDICTION OVER SUCH OTHER PERSON. HE HAS POINTED OUT THAT IN THIS CASE, THE ASSESSING OFFICER OF THE SEARCH PARTY I.E. KEYSTONE REALTOR PVT. LTD. WAS NEITHER SATISFIED NOR HANDED OVER ANY RECORD/MATERIAL BELONGING TO THE ASSESSEE OR SHOWING ANY UNDISCLOSED INCOME BELONGING TO THE ASSESSEE TO THE A SSESSING OFFICER HAVIN G JURISDICTION OVER THE ASSESSEE. THUS, THE MANDATOR Y CONDITION IS THE SATISFACTION OF THE ASSESSING OFFICER OF SEARCH PARTY AND HANDING OVER OF THE RECORD TO THE ASSESSING OFFICER HAVING JURI SDICTION OVER OTHER PERSON AND NOT THE SATISFACTION OF ANY OTHER ASSESS ING OFFICER. HE HAS RELIED UPON THE DECISION OF HONBLE SUPREM E COURT IN THE CASE OF MANISH MAHESHWARI V. ASST. COMMISSIONER OF INCOME-TAX, REPORTED IN 289 ITR 341 AND SUBMITTED THAT THE HONBLE APEX COURT HAS HELD THAT THE PRE-REQUISITE CONDITIONS FOR UNDERTAKING A BLOCK ASSESSMENT UNDER SECTION 158BD ARE :- I) SATISFACTION MUST BE RECORDED BY THE ASSESSING OFFICER THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 OF THE ACT; II) THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAS BEEN HANDED OVER TO THE ASSESSING OFFICER HAVING JURI SDICTION OVER SUCH OTHER PERSONS AND; III) THE ASSESSING OFFICER HAS PROCEEDED UNDER SECTION 158BC AGAINST SUCH PERSONS. 4.1 LEARNED AR HAS SUBMITTED THAT AS HELD BY THE HONBLE SUPREME COURT, THESE CONDITIONS PRECEDENT FO R INVOKING THE PROVISIONS OF SECTION 158BD, THUS, ARE REQUIRED TO BE SATISFIED BEFORE THE PROVISIONS OF CHAPTER XIV-B ARE APPLIED IN RELATION TO ANY PERSON OTHER THAN THE IT(SS) NO :27/10 6 PERSON WHOSE PREMISES HAD BEEN S EARCHED OR WHOSE DOCUMENTS AND OTHER ASSETS HAD BEEN REQUISITIONED UNDER S.132A OF THE ACT. LEARNED AR HAS FURTHER SUBMITTED THAT EVEN WHEN THE NOTICE UNDER SECTION 158BC R.W.S.158BD WAS ISSUED ON 10-5-2005, THE ASSESSING OFFICER WAS NOT IN RECEIPT OF ANY MATERIAL, RECORD OR BOOKS OF ACCOUNTS OR ANY SUCH MATERIAL DISCLOSING ANY UNDISCLOSED INCOME BELONGING TO THE ASSESSEE. LEARNED AR HAS REFERRED THE LETTER DATED 31-3-2005 OF DCIT, CENTRAL CIRCLE 30 MUMBAI, WH ICH WAS RECEIVED BY THE ASSESSING OFFICER-ACIT-24(1), MUMBAI ON 3 RD MAY, 2005 AND SUBMITTED THAT ON 10 TH MAY, 2005, WHEN THE NOTICE UNDER SECTION 158BC R.W.S.158BD ISSUED BY THE ASSESSING OFFICER IN TH E CASE OF ASSESSEE EXCEPT THE LETTER DATED 31-3-2005, NO OTHER MA TERIAL WAS RECEIVED BY THE ASSESSING OFFICER. HE HAS REFERRED THE ORDER SHEET DATED 10-5-2005 AND POINTED OUT THAT EXCEPT THE SAID LETTER DATED 31-3-2005, NO OTHER MATERIAL WAS RECEIVED BY THE ASSESSING OFFICER BEFORE ISSUING THE NOTICE UNDER SECTION 158BD. LEARNED AR THEN REFERRED THE LETTER DATED 21-6-2005 WRITTEN BY THE ASSESSING OFFICER OF THE ASSESSEE TO THE DCIT, CENTRAL CIRCLE-10, MUMBAI A SKING FOR COPIES OF THE STATEMENTS RECORDED AND DOCUMENTS FOUND IN THE C OURSE OF SEARCH WHICH MAY BE RELEVANT TO THE ASSESSEE FOR FILING THE RETURN. EVEN IT WAS REQUESTED TO FURNISH COPY OF THE BLOCK ASSESSMENT ORDER IN THE CASE OF RLCPL, SINCE THE BASIS OF COMPUTATION OF THE ASSESSEES SHARE CAN BE ASCERTAINED FROM THE SAID ASSESS MENT ORDER. THE LEARNED AR HAS FURTHER POINTED OUT THAT VIDE LETTER DATED 17-10-2005, THE ASSESSING IT(SS) NO :27/10 7 OFFICER AGAIN REQUESTED FOR DOCUMENTS IN CONNECTION WITH THE PROCEEDINGS UNDER SECTION 158BD IN CASE OF THE ASSESSEE AS REQUISITE INFORMATION AND RECORD WAS NOT YET RECEIVED. LEARNED AR OF THE ASSESSEE HAS VEHEMENTLY CONTENDED THAT THE NOTICE UNDER SECTION 158BD WAS ISSUED BY THE ASSESSIN G OFFICER WITHOUT ANY RELEVANT MATERIAL OR RECORD RECEIVED FROM THE CONCERNED ASSESSING OFFICER. WHEN THE ASSESSING OFFICER WAS NOT HAVING THE RELEVANT MATERIAL ON THE BASIS OF WHICH THE PROC EEDINGS UNDER SECTION 158BD COULD BE INITIATED, THE NOTICE ISSUED UNDER SECTION 158BD WAS WITHOUT ANY JURISDICTION. THUS, THERE IS A CLEAR VIOLATION OF THE CONDITIONS AS PRESCRIBED UNDER SECTION 158BD OF THE ACT BEFORE INVOKING JURISDICTION BY THE ASSESSING OFFICER. LEARNED AR HAS ALSO SUBMITTED THAT FIRSTLY, THERE WAS NO SATISFACTION BY THE ASSE SSING OFFICE OF THE PERSON WITH RESPECT TO WHOM SEARCH WA S MADE AND SECONDLY, THERE WAS NO HANDING OVER OF ANY MATERIAL, DOC UMENT OR SEIZED ASSET BY THE ASSESSING OFFICER OF SUCH PERSON TO THE ASSESSING OFFICER OF THE ASSESSEE. THEREFORE, THE CONDITIONS PRESCRIBED UNDER SECTION 158BD ARE NOT COMPLIED WITH. 5 . THE NEXT LIMB OF THE ARGUMENT OF THE LEARNED AR IS THAT THE NOTICE UNDER SECTION 158BD IS BARRED BY LIMITATION. HE HAS REFERRED SECTION 158BE(2) AND SUBMITTED THAT THE LIMITATION FOR COMPLETION OF BLOCK ASSESSMENT IN THE CASE OF OTHER PERSON REFERRED TO IN SECTION 158BD, SHALL BE TWO YEARS FROM THE END OF THE MONTH IN WHICH THE IT(SS) NO :27/10 8 NOTICE UNDER THIS CHAPTER WAS SERVED ON SUCH OTHER PERSON IN RESPECT OF SEARCH INITIATED OR BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ANY ASSET ARE REQUISITIONED. THE LEARNED AR HAS THEN SUBMITTED THAT THE NOTICE UNDER SECTION 158BD CAN BE ISSUED ONLY DURING THE ASSESSMENT PROCEEDINGS OF THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 AND NOT ON THE BASIS OF THE ASSESSMENT OF SOME OTHER PERSON. HE HAS AGAIN REFERRED THE LETTER DATED 31-3- 2005 RECEIVED BY THE ASSESSING O FFICER ON 3-5-2005 AND SUBMITTED THAT THE SAID COMMUNICATION ITSELF IS AFTER THE EXPIRY OF TWO YEARS FROM THE NOTICE UNDER SECTION 158BD ISSUED IN THE CASE OF RLCPL ON 2-2- 2005. LEARNED AR HAS THEN SUBMITTED THAT THE NOTICE ISSUED ON 10-5- 2005 IS BEYOND THE PERIOD OF LIMITATION AS HELD BY THE SPECIAL BENCH OF THIS TRIBUNAL (DELHI) IN THE CASE OF MANOJ AGGARWAL VS. DEPUTY COMMISSIONER OF INCOME TAX, REPORTED IN 113 ITD 377 , THAT THE TIME LIMIT FOR ISSUING THE NOTICE UNDER SECTION 158BD SHALL BE AS THE SET OUT UNDER SECTION 158BE. THUS, T HE LEARNED AR HAS SUBMITTED THAT THE NOTICE UNDER SECTION 158BD ISSUED AFTER THE EXPIRY OF TWO YEARS FROM THE ASSESSMENT IN THE CASE OF SEARCHED PERSON IS BARRED BY LIMITATION. IN SUPPORT OF HIS CONT ENTIONS, LEARNED AR HAS RELIED UPON THE FOLLOWING DECISIONS :- I) MANISH MAHESHWARI V. ACIT & ANR. , 289 ITR 341 (SC); II) MANOJ AGGARWAL V. DY.CIT , 113 ITD 377(DEL)(SB); II) SUKH RAM VS. ACIT , 99ITD 417(DEL); IV) CIT V. TIRUPATI OIL CORPORATION , 248 ITR 194(BOM) V) CIT V. R.M. PATEL (HUF) , 298 ITR 274 (MAD) IT(SS) NO :27/10 9 VI) J.K.SYNTHETICS LTD. & ORS. V. CBDT & ORS ., 83 ITR 335(SC) VII) ITO & ORS. V. EASTERN SCALES (P) LD., 115 ITR 323 (CAL); VIII) GORDHANDAS DESAI (P) LTD. V. V.B.KULKARNI, ITO & ORS. , 129 ITR 495(BOM); AND IX) MANGE RAM MITTAL V. ACIT , 103 ITD 389 (DEL) (SB). 6. PER CONTRA , LEARNED DR HAS SUBMITTED THAT THE ASSESSING OFFICER, WHO HAS COMPLETED THE A SSESSMENT IN THE CASE OF M/S KEYSTONE AND M/S RLCPL ON 31-3-2005 SENT A CONFIDENTIAL LETTER DATED 31-3-2005 TO THE ASSESSING OFFICER OF THE ASSESSEE. IN THIS LETTER, THE ASSESSING OFFICER INDI CATED ABOUT INCRIMINATING DOCUMENTS SEIZED SHOWING RECEIPTS OF ON-MONEY ON SALE OF FLATS, WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNTS. THE ASSESSING OFFICER HAS ALSO POINTED OUT THAT 50% ON-MONEY TO BE TAXED IN THE HAND OF ASSESSEE BECAUSE IT WAS A CO-DEVELOPER WITH RLCPL. THUS, THE LEARNED DR HAS SUBMITTED THAT THE CONDITIONS PRECEDENT FOR INVOKING THE PROVISION UNDER SECTION 158BD AS LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI( SUPRA) ARE SATISFIED BECAUSE THE SATISFACTION HAS BEEN RECORDED BY THE DCIT, CENTRAL CIRCLE-10, MUMBAI THAT CERTAIN UNDISCLOSED INCOME BELONGING TO THE ASSESSEE WAS FOUND ON THE BASIS OF SEIZED MATERIAL. THE RECORD AND BOOKS OF ACCOUNTS WERE HANDED OVER TO THE A SSESSING OFFICER. HE HAS FURTHER CONTENDED THAT THERE IS NO MANDATORY REQUIREMENT UNDER THE ACT FOR HADING OVER THE SEIZED MATERIAL, BOO KS OF ACCOUNTS AND ETC., E PRIOR TO OR SIMULTANEOUS WITH THE RECORDI NG OF FINDING THAT UNDISCLOSED INCOME IT(SS) NO :27/10 10 BELONGING TO A PERSON OTHER THAN THE SEARCHED PERSON. AS REGARDS, THE DECISION OF SPECIAL BENCH IN THE CASE OF MANOJ AGGARWAL (SUPRA), LEARNED DR HAS SUBMITTED THAT THE PR OVISION OF INCOME TAX ARE TO BE CONSTRUED/INTERPRETED STRICTLY AND NOT HING CAN BE READ INTO THE PLAIN LANGUAGE OF THE SECTION, OTHERWISE IT WOULD DEFEAT THE PURPOSE AND INTEND OF THE LEGISLATIVE. IN SUPPOR T OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF THE HONBLE P UNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. OM PRAKASH & SONS, REPORTED IN 242 CTR 47 AND SUBMITTED THAT THE DELAY IN I SSUANCE OF NOTICE UNDER SECTION 158BD AFTER TWO YEARS OF ASSESSMENT OF THE SEARCHED PERSON WAS HELD TO BE NEITHER UN-REASONABLE NOR VITIATING THE ASSESSMENT. THUS, THE LEARNED DR HAS SUBMITTED THAT THE DECIS ION OF THE HONBLE PUNJAB AND HARYANA HIGH COURT IS BINDING WHEN THERE IS NO CONTRARY DECISION OF THE JURISDICTIONAL HIGH COURT. HE HAS FURTHER SUBMITTED THAT THE DECISIONS RELIED BY THE LEARNED AR OF THE ASSESSEE ARE NOT APPLICABLE IN THE FACTS AND CIRCUMSTANCES OF T HE CASE IN HAND. HE HAS REFERRED THE DECISION IN THE CASE OF SUKH RAM V. ACIT, RE PORTED IN 99 ITD 417 (DEL) AND SUBMITTED THAT IN THE SAID CASE WHEN THE PHOTOCOPIES OF DIARIES FORWARDED BY THE REVENUE SECRETARY TO THE IT DEPARTMENT WAS HELD AS COULD NOT BE USED FOR COMPUTING UNDISCLOSED INCOME BECAUSE THOSE DIARIES HAD BEEN FOUND BY CBI IN SEARCH AND WERE NOT REQUISITIONED BY THE IT DEPARTMENT. LEARNED DR HAS RELIED UPON THE ORDER OF THE ASSESSING OF FICER AS WELL AS CIT(A). IT(SS) NO :27/10 11 7 . WE HAVE CONSIDERED THE RIVAL S UBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DIS PUTE REGARDING THE FACTS THAT SEARCH AS WELL AS SURVEY WAS CARRIED OUT IN THE CASE OF KEYSTONE REALTORS PVT. LTD. ON 21-1-2003. CONSEQUENT LY, A NOTICE UNDER SECTION 158BD WAS ISSUED ON 2-2-2005 IN THE CASE OF RLCPL AND THE BLOCK ASSESSMENT WAS COMPLETED ON 31-3-2005. THEREAFTER THE ASSESSING OFFICER HAVING JURISDICTION OVER THE ASSESSEE BEFORE US RECEIVED A LETTER ON 3-5-2005 SENT BY THE ASSESS ING OFFICER, WHO HAS COMPLETED THE BLOCK ASSESSMENT IN THE CASE OF RLCPL. ON THE BASIS OF SAID LETTER, THE ASSESSING OFFICER HAS MADE A NOTE IN THE ORDERSHEET DATED 10-5-2005 AS UNDER :- 10.5.2005 ORDER SHEET NAME OF THE CASE : M/S B J DEVELOPMENT CORPORATION AS PER CONFIDENTIAL LETTER NO.DCCC-10/INFOR/2005-06 DT. 31.3.2005 RECEIVED IN THIS OFFICE ON 31.5.2005 THERE WAS A SEARCH AND SEIZURE ACTION C ONDUCTED ON 21.3.2003 AT THE RESIDENTIAL AND BUSINESS PREMISES OF M/S. KEYSTONE REALTORS PVT. LTD. M/S RUSTOMJEE LANDMARK CONS TRUCTION PVT. LTD. (RLC) IS ONE OF THE GROUP COMPANIES. THE BLOCK ASSESSMENT IN THE CASE OF RLC WAS COMPLETED U/S.143(3) R.W.S.158BD ON 31.3.2005. DURING THE COURSE OF SURVEY ACTION IT CAME TO LIGHT THAT RLC WAS TAKING ON MONEY ON SALES OF FLATS WHICH WAS NOT RECORDED IN THE BOOKS OF ACCOUNTS. THE PROJECTS CONCERNED BEING RUSTOMJEE HERITAGE AND RUSTOMJEE ADARSH REGAL. SINCE THERE WAS CO.DEVELOPMENT AGREEMENT WITH RLC WITH M/S.B J DEVELOPERS CORPORATION THE ABOVE INTIMATION D.31.3.2005 HAS BEEN MADE TO THIS OFFICE BY DCIT CENTRAL CIR-30, MUMBAI. AS PER THE SAID INTIMATION THE TOTAL ON MONEY RECEIVED DURING THE BLOCK PERIOD AMOUNTS TO ` .25625290/-. THE ASSESSEES SHARE BEING 50% OF THE SAME I.E. ` .12812145 HAS BEEN TREATED AS UNDISCLOSED INCOME IN THE HANDS OF CO-DEVELOPERS NAMELY M/S. B J DEVELOPMENT CORPORATION. IT(SS) NO :27/10 12 IN VIEW OF THE ABOVE, PROVISI ONS OF SEC.158BD ARE INVOKED IN THE CASE OF THE ASSESSEE. ACCORDINGLY, NOTICE U/S 158 BD IS BEING ISSUED. SD/- DCIT 24(1), MUMBAI 10/5/2005 NOTICE U/S 158BC R.W.S.158BD ISSUED. 7.1 IT IS CLEAR THAT DURING THE COURSE OF SURVEY ACTION, IT CAME TO THE LIGHT THAT RLCPL WAS TAKING ON-MONEY ON SALE OF FLATS, WHICH WAS NOT RECORDED IN THE BOOKS OF ACCOUNTS. THUS, THE MATERIAL FOUND DURING THE SEARCH AND SURVEY ACTION AS PER THE REVENUE REVEALS THAT M/S RLCPL WAS TAKING ON-MONEY ON SALE OF FLATS IN THE PROJECTS NAMELY, RUSTOMJEE HERITAGE AND RUSTOMJEE ADARSH REGAL. IT IS THE CASE OF THE ASSESSING OFFICER, WHO HAS COMPLETED THE BLOCK ASSESSMENT IN THE CASE OF RLCPL THAT SEIZED MATERIAL SHOWS T HE RECEIPT OF ON-MONEY BY RLCPL. ONLY DURING THE ASSESSMENT PROCEEDINGS M/S RLCPL CAME OUT WITH A PLEA THAT THESE TWO PROJECTS WE RE UNDERTAKEN BY RLCPL AND BJ DEVELOPER CORPORATION UNDER CO-DEVEL OPMENT/JOINT VENTURE. IN SUPPORT OF ITS CONTENTION, RLCPL PRO DUCED AN AGREEMENT DATED 19-5-2000. THE ASSESSING OFFICER, WHO HAS CO MPLETED THE BLOCK ASSESSMENT IN THE CASE OF RLCPL ACCEPTED THE CONTENTION OF THE RLCPL AND TAXED ONLY 50% OF THE TOTAL ON-MONEY AS WO RKED OUT BY THE ASSESSING OFFICER AT ` .2,56,24,290/- AND ACCORDINGLY SENT THE LETTER DATED 31-3-2005 TO THE ASSESSING OFFICER OF THE ASSE SSEE BEFORE US. THUS, AS PER THE MATERIAL ON RECORD, IT IS EVIDENT THAT THE SATISFACTION WAS FORMED BY THE ASSESSING OFFICER THAT THE UNDISCLOSED INCOME BEING THE ON-MONEY IT(SS) NO :27/10 13 RECEIPT AND NOT RECORDED IN THE BOOKS OF ACCOUNTS BELONGS TO THE ASSESSEE, ONLY DURING THE ASSESSMENT PROCEEDINGS UNDER SECTION 158 BD IN THE CASE OF RLCPL AND NOT IN THE CASE OF KEYSTONE REALTORS PVT. LTD. WITH RESPECT TO WHOM THE SEARCH WAS MADE UNDER SECTION 132. THE CONDITION PRECEDENT FOR INVOKING THE BLOCK ASSESSMENT UNDER SECTION 158BD IS THE SATISFACTION RE CORDED BY THE ASSESSING OFFICER, WHO SEIZED OF THE MATTER AGAINST THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132. WE QUOTE SECTION 158BD AS UNDER :- 158BD. WHERE THE ASSESSING OFFICER IS SATISFIED THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS WERE REQUISITIONED UNDER SECTION 132A , THEN, THE BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND THAT ASSESSING OFFICER SHALL PROCEED [UNDER SECTION 158BC ] AGAINST SUCH OTHER PERSON AND THE PROVISIONS OF THIS CHAPTER SHALL APPLY ACCORDINGLY. 8. THE HONBLE SUPREME COURT IN THE CASE OF MANISH MAHESHWARI (SUPRA), HAS OBSERVED IN PARAS 7 & 13 AS UNDER :- 7. THE CONDITION PRECEDENT FOR INVOKING A BLOCK ASSESSMENT IS THAT A SEARCH HAS BEEN CONDUCTED UNDER SECTION 132, OR DOCUMENTS OR ASSETS HAVE BE EN REQUISITIONED UNDER SECTION 132A. THE SAID PROVISION WOULD APPLY IN THE CASE OF ANY PERSON IN RESPECT OF WHOM SEARCH HAS BEEN CARRIED OUT UNDER SECTION 132A OR DOCUMENTS OR ASSETS HAVE BEEN REQUI SITIONED UNDER SECTION 132A. SECTION 158BD, HOWEVER, PROVIDES FOR TAKING RECOURSE TO A BLOCK ASSESSMENT IN TERMS OF SECTION 158BC IN RESPECT OF ANY OTHER PERSON, TH E CONDITIONS PRECEDENT WHEREFOR ARE : (I) SATISFACTION MUST BE RECORDED BY THE ASSESSING OFFICER THAT ANY UNDISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 OF THE ACT ; (II) THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAD BEEN HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON ; IT(SS) NO :27/10 14 AND (III) THE ASSESSING OFFICER HAS PROCEEDED UNDER SECTION 158BC AGAINST SUCH OTHER PERSON. X X X X X X X 13. A LARGE NUMBER OF DECISIONS OF VARIOUS HIGH COURTS HAVE BEEN CITED AT THE BAR. WE WOULD, AT THE OUTSET, REFER TO A DECISION OF THE GUJARAT HIGH COURT IN KHANDUBHAI VASANJI DESAI V. DEPUTY CIT [1999] 236 ITR 73. THEREIN, IT WAS CLEARLY HELD (PAGE 85) THIS PROVISION INDICATES T HAT WHERE THE ASSESSING OFFICER WHO IS SEIZED OF THE MATTER AND HAS JURISDICTION OVER THE PERSON OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE UNDER SECTION 132 OR WHOSE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR ANY ASSETS WERE REQUISITIONED UNDER SECTION 132A, HE SHALL PROCEED AGAINST SUCH OTHER PERSON AS PER THE PROVISIONS OF C HAPTER XIV-B WHICH WOULD MEAN THAT ON SUCH SATISFACTION BEING REACHED THAT ANY UNDISCLOSED INCOME BELONGS TO SUCH OTHER PERSON, HE MUST PROCEED TO SERVE A NOTICE TO SUCH OTHER PERSON AS PER THE PROVISIONS OF SECTION 158BC OF THE ACT. IF THE ASSESSING OFFICER WHO IS SEIZED OF THE MATTER AGAINST THE RAIDED PERSON REACHES SUCH SATISF ACTION THAT ANY UNDISCLOSED INCOME BELONGS TO SUCH OT HER PERSON OVER WHOM HE HAS NO JURISDICTION, THEN, IN THAT EVENT, HE HAS TO TRANSMIT THE MATERIAL TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON AND IN SUCH CASES THE ASSESSING OFFICER WHO HAS JURISDICTION WILL PROC EED AGAINST SUCH OTHER PERSON BY ISSUING THE REQUISITE NOTICE CONTEMPLATED BY SECTION 158BC OF THE ACT. 8.1 IT IS SETTLED AS HELD BY THE HONBLE SUPREME COURT THAT CONDITIONS PRECEDENT FOR INVOKING THE PROVISIONS OF SECTION 158BD ARE REQUIRED TO BE SATISFIED BEFORE THE PR OVISIONS OF THE SAID CHAPTER ARE APPLIED IN RELATION TO ANY PERSON OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE OR BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ANY OTHER ASSET WERE REQUISITIONED UNDER SECTION 132A. SECTION 158BD STIPULATES THAT THE SATISFACTION THAT ANY UNDISCLOSED INCOME BELONGING TO ANY PERSON OTHER T HAN THE SEARCHED PERSON SHOULD BE BASED ON THE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ANY ASSET WERE IT(SS) NO :27/10 15 REQUISITIONED OR SEIZED AND THEN THE SAID RELEVANT MATERIAL AND RECORD SO SEIZED OR REQUISITIONED SHALL BE HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON. THUS, THE REQUIREMENT AND THE MANDATORY CONDITIONS FOR INVOKING THE PROVISIONS OF SECTION 158BD ARE THE SATISFA CTION MUST BE RECORDED BY THE ASSESSING OFFICER, THE BOOKS OF ACCOUNTS AND OTHER DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED HAD BEEN HANDED OVER TO THE ASSESSING OFFICER HAVING JURISDICTION OVER SUCH OTHER PERSON. IN THE CASE IN HAND THE SATISFACTION OF THE ASSESSING OFFICER, WHO HAS COMPLETED THE ASSESSMENT IN THE CASE OF RLCPL IS NOT BASED ON THE SEIZED MATERIAL, BOOKS OF ACCOUNTS OR OTHER DOCUMENTS OR ASSET BEING REQUISITIONED UNDER SECTION 132A BUT THE SATISFACTION IS BASED ON THE AGREEMENT, WHICH WAS PRODUCED BY THE RLCPL DURING THE ASSESSMENT PROCEEDINGS AND THE STATEMENT MADE DURING THE ASSESSMENT PROCEEDINGS UNDER SECTION 131, THEREFORE, THE MATERIAL ON THE BASIS OF WHICH THE SATISFACTION WAS RECOR DED THAT 50% OF THE ON-MONEY BELONGS TO ASSESSEE IS NEITHER SEIZED MATERIAL NOR THE REQUISITIONED RECORD UNDER SECTION 132A. EVEN OTHERWISE IT IS MANIFEST AND APPARENT THAT THE ASSESSING OFFICER COULD NOT FORM SATISFACTION ON THE BASIS OF SEIZED MATERIAL THAT THE ASSESSEE BEFORE US HAS RECEIVED ON-MONEY ON SALES OF FLATS, THAT IS WHY THE PROCEEDINGS UNDER SECTION 158BD WERE INITIATED ONLY AGAINST RLCPL. THE INITIATION OF PROCEEDINGS UNDER SECTION 158BD AGAINST RLCPL AND NOT AGAINST THE ASSESSEE ON THE BASIS OF SEIZED MATERIAL ITSELF S HOWS THAT NOTHING INCRIMINATING WAS IT(SS) NO :27/10 16 FOUND AND SEIZED OR REQUISITIONED DURIN G THE SEARCH AND SEIZURE ACTION SHOWING UNDISCLOSED INCOME BELONGS TO ASSESSEE. IT IS ONLY ON THE BASIS OF THE AGREEMENT PRODUCED DURING THE ASSESSMENT PROCEEDINGS AND STATEMENT RECORDED BY THE ASSESSING OFFICER UNDER SECTION 131 DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FORMED THE OPINION THAT A PART OF THE ON-MONEY RECEIVED BY RLCPL BELONGS TO THE ASSESSEE BEFORE US AND TO BE TAXED. IT IS A CLEAR CASE OF LACK OF SATISFACTION RECORDED BY THE ASSESS ING OFFICER ON THE BASIS OF SEIZED MATERIAL OR REQUISITIONED MATERIAL, BOOKS OF ACCOUNTS OR ASSET. THE PROCEEDINGS UNDER SECTION 158BD CANNOT BE INITIATED ON THE BASIS OF ANY MATERIAL, DOCUMENT, ASSET, WHICH WERE NOT SEIZED OR REQUISITIONED UNDER SECTION 132A. FURTHER IT IS EVI DENT AND MANIFEST FROM THE RECORD, THAT THE RELEVANT MATERIAL AND DOC UMENTS WERE NOT HANDED OVER TO THE ASSESSING OFFICER BEFORE INITIATI ON OF THE PROCEEDINGS UNDER SECTION 158BD. IN THIS ASPECT, IT IS PERTINENT TO REFER THE LETTER DATED 1-6-2005 OF THE ASSESSING OFFICER, WHICH IS AS UNDER :- NO.DCIT.24(1)/B.J.DEV./2005-06 OFFICE OF THE DY. COMMISSIONER OF INCOME-TAX 24(1), 5 TH FLOOR, C-13, PRATYAKSHAKAR BHAWAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI TEL : [phone] DATE : 21 ST JUNE 2005 CONFIDENTIAL TO, THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-10, 8 TH FLOOR, OLD CGO BUILDING ANNEX. M.K.ROAD, MUMBAI-20. SIR, IT(SS) NO :27/10 17 SUB: INFORMATION IN THE CASE OF M/S B.J.DEVELOPERS FOR ISSUE OF NOTICE U/S. 158BD OF THE INCOME-TAX ACT. REF.: LETTER NO.DCC.10/INFOR/2005-06, DATED 31.3.2005 KINDLY REFER TO THE ABOVE. IN THIS CONNECTION THIS IS TO INFORM YOU THAT NOTICE U/S. 158BD OF THE INCOME-TAX ACT HAS AL READY BEEN ISSUED ON THE BASIS OF INFORMATION SENT BY YOU VIDE YO UR ABOVE MENTIONED CONFIDENTIAL LETTER. THE ASSESSEE HAS ASKED FOR COPIES OF STATEMENTS, RECORDS AND DOCUMENTS FOUND IN THE COUR SE OF SEARCH WHICH MAY BE RELEVANT TO THE ASSESSEE FOR FILI NG THE RETURN. I, THEREFORE, REQUEST YOU TO FURNISH THE SAME TO THIS OFFICE SINCE THE SAME WILL ALSO BE REQUIRED IN THE COURSE OF ASSE SSMENT PROCEEDINGS. BESIDES, YOU ARE REQUESTED TO FURNISH COPY OF T HE BLOCK ASSESSMENT ORDER IN THE CASE OF M/S. RUSTOMJEE LANDMARK CONSTRUCTION P. LTD.(RLC) SINCE THE BASIS OF COMPUTATION OF ASSE SSEES SHARE CAN BE ASCERTAINED FROM THE ASSESSMENT ORDER. YOU ARE ALSO REQUESTED TO FU RNISH ANY OTHER INFORMATION WHICH YOU FEEL WOULD HELP IN FR AMING THE BLOCK ASSESSMENT ORDER U/S.158BD OF THE ACT. YOURS FAITHFULLY, SD/- (R.B.SITLANI) DY. COMMISSIONER OF INCOME-TAX 24(1), MUMBAI 8.2 IT IS CLEAR FROM THE LETTER THAT THE ASSESSING OFFICER WAS NOT HANDED OVER THE RELEVANT RECORD AND DOCUMENTS ON THE BASIS OF WHICH THE PROCEEDINGS COULD HAVE BEEN IN ITIATED AND ASSESSMENT UNDER SECTION 158BD COULD BE FRAMED. THE ASSESSING OFFICER FURTHER WROTE A LETTER DATED 17-10-2005 REQUESTING THE A SSESSING OFFICER TO FURNISH THE RELEVANT DOCUMENTS, WHICH IS AS UNDER :- ADDITIONAL COMISSIONR OF INCOME-TAX 24(1) , 5 TH FLOOR, C-13, PRATYAKSHAKAR BH AWAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI-50. ------------------------------------------------------------------------------ ------------ NO.ADDL.CIT.24(1)BJ.DEVELOPER S/05-06 DATE:17 TH OCTOBER,2005 TO, THE ADDITIONAL COMMISSI ONER OF INCOME-TAX, CENTRAL RANGE-2, 8 TH FLOOR, OLD CGO BUILDING ANNEX. M.K.ROAD, MUMBAI-400020. IT(SS) NO :27/10 18 SIR, SUB: INFORMATION IN THE CASE OF M/S B.J.DEVELOPERS FOR ISSUE OF NOTICE U/S. 158BD OF THE INCOME-TAX ACT, 1961. THE DCIT. 24(1) VIDE LETTE R DATED 21.6. 2005 HAD MADE A REQUEST TO DCIT, CENTRAL CIRCLE 10 TO FORWARD CERTAIN DOCUMENTS IN CONNECTION WITH THE INCOME TAX PR OCEEDINGS U/S.158BD IN THE CASE OF M/S B.J.DEVELOPERS. HOWEVER, DESPITE SEVERAL VISITS BY THE INSPECTOR, SMT. DEOLAPURE, THE SAID INFORMATION HAS NOT BEEN RECEIVED YET. I, THEREFORE, REQUEST YOU TO KI NDLY DIRECT THE DCIT, CENTRAL CIRCLE 10 TO HANDOVER THE DESIRED IN FORMATION, WITHOUT ANY FURTHER DELAYED. THANKING YOU, YOURS FAITHFULLY, SD/- (G.KI.DHALL) ADDITIONAL COMMISSIONER OF INCOME-TAX RANGE 24(1), MUMBAI COPY TO: 1.CIT (C)-I, MUMBAI 2.CIT.24, MUMBAI 3.DCIT.CENTRAL CIRCLE 10, MUMBAI 4.DCIT. 24(1), MUMBAI. 9. ALL THESE RECORDS INDICATE WITHOUT ANY AMBIGUITY OR DOUBT THAT WHEN THE PROCEEDINGS UNDER SECTION 158BD WERE INITIATED THE ASSESSING OFFICER OF THE ASSESSEE BE FORE US DID NOT RECEIVE RELEVANT RECORD/DOCUMENTS. HENCE, AS OBSERVE D BY THE HONBLE SUPREME COURT IN THE CASE OF MANISH MAHAESHWAR I(SUPRA), THE CONDITIONS PRECEDENT FOR INVOKING THE PROVISIONS OF SECTION 158BD ARE REQUIRED TO BE SATISFIED BEFORE THE PROVISIONS OF TH IS CHAPTER ARE APPLYING IN RELATION TO ANY PERSON OTHER THAN THE PERSON SEARCHED BUT THE SAME ARE NOT FULFILLED OR COMPLIED WITH IN THE CASE OF THE ASSESSEE. ACCORDINGLY, THE INITIATION OF PROCEEDINGS UNDER SECTION 158BD WITHOUT FULFILLING THE CONDITIONS PRECEDENT FOR INVOKING THE SA ID PROVISION ARE CONTRARY TO THE IT(SS) NO :27/10 19 PROVISIONS OF LAW AND, THEREFORE, T HE BLOCK ASSESSMENT ON THE BASIS OF SAID PROCEEDINGS IS ILLEGAL AND LIABLE TO BE SET ASIDE. ACCORDINGLY, WE SET ASIDE THE BLOCK ASSESSMENT FRAMED UNDER SECTION 158BD R.W.S.143(3) AS VOID AB INITIO. SINCE WE HAVE SET ASIDE THE BLOCK ASSESSMENT AS VOID AB INITIO, THEREFORE, WE DO NOT PURPOSE TO GO INTO THE MERITS OF THE CASE. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH SEPT., 2012 . 26 TH SEPT.,2012 SD/- SD/- ( ) ( ) ( NARENDER KUMAR BILLAIYA) ( VIJAY PAL RAO) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED 26 TH / SEPT. /2012 . . / PKM . . . /PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI