Late Shri Atmaram J. Navani through L/H Gangaben A. Navani, Adipur-Kutch V. The Deputy Commissioner of Income Tax, Central Circle-1, RAJKOT-GUJARAT

ITSSA 4/RJT/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8057 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-07-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 11-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LD BHARTI
• Keywords: Unexplained investment; Gift; Additional evidence; Question of law
• Section: 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T(SS)A. NO.04/RJT/2010 (ASSESSMENT YEAR 2004-05) SMT. GANGABEN A NAVANI VS DY.CIT, CENT.CIR.1 L/H OF LATE SHRI AMATMARAM J NAVANI CENT.CIR.I, RA JKOT PLOT NO.406-407, WD.2B ADIPUR, GANDHIDHAM PAN : AATPN1652R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIMAL DESAI RESPONDENT BY: SHRI LD BHARTI DATE OF HEARING : 14-07-2011 DATE OF PRONOUNCEMENT : 26-08-2011 O R D E R PER N.R.S. GANESAN, JM THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A)- IV, AHMEDABAD DATED 30-10-2009 AND PERTAINS TO ASSE SSMENT YEAR 2004- 05. 2. THE FIRST GROUND OF APPEAL PERTAINS TO ADDITION OF RS. 86,593 U/S 68B OF THE ACT. THE FACTS GOVERNING THE ISSUE SPRING F ROM ASSESSMENT YEAR 2001-02. THE ASSESSEE HAD CONSTRUCTED A RESIDENTIAL BUILDING. THE CONSTRUCTION COMMENCED IN THE FY 1999-2000 RELEVANT TO AY 2000-01 AND COMPLETED IN FY 2003-04 RELEVANT TO ASSESSMENT YEAR 2004-05. THE IT(SS)A NO.04/RJT/2010 2 ASSESSEE DECLARED COST OF CONSTRUCTION OF THE RESID ENTIAL BUILDING AT RS.26,46,962 WHEREAS THE DVO VALUED THE COST OF CON STRUCTION AT RS.31,15,700. THE ASSESSING OFFICER HAS APPORTIONE D THE DIFFERENCE TO ASSESSMENT YEARS 2000-01 TO 2004-05 AND MADE THE AD DITION IN ALL THE YEARS. THE IMPUGNED ADDITION OF RS. 86,953 IS THUS MADE. ON APPEAL, THE CIT(A) FOLLOWING HIS ORDERS FOR ASSESSMENT YEARS 20 01-02 AND 2002-03 HAS REJECTED THE GROUND RAISED BY THE ASSESSEE. 4. WE HAVE HEARD SHRI VIMAL DESAI, THE LD.REPRESENT ATIVE FOR THE ASSESSEE AND SHRI LD BHARTI, THE LD.DR. 5. THE CONTENTION OF THE ASSESSEE BEFORE US IS THAT FOR THE ASSESSMENT YEARS 2001-02 AND 2002-03, THE TRIBUNAL HAS RESTORE D THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE I SSUE AFRESH IN THE LIGHT OF OBSERVATIONS MADE AS UNDER, VIDE ORDER DATED 10-02- 2010 IN IT(SS) NO.01-02/RJT/2010: 10. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY BOTH THE PARTIES AND HAVE ALSO GONE THROUGH THE PAP ER BOOK. IT IS OBSERVED FROM THE ORDER OF CIT(A) THAT IN PAR A 3.1 HE HIMSELF STATES THAT THE REPORT RECEIVED BY HIM FROM THE ASSESSING OFFICER IN RESPECT OF THE PAPER BOOK SUBM ITTED BY THE APPELLANT DID NOT ADDRESS THE ISSUES ON MERITS AND IN ABSENCE OF SPECIFIC COMMENTS BY THE ASSESSING OFFIC ER THE STAND TAKEN BY THE APPELLANT HAS TO BE ACCEPTED AND THAT SINCE THERE IS NO SPECIFIC OBJECTION TAKEN BY THE A O IN RELATION TO ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE IT IT(SS)A NO.04/RJT/2010 3 RULES, 1962 HE IS BOUND TO ACCEPT THEM PROVIDED THA T THE CONDITIONS LAID DOWN IN RULE 46A ARE SATISFIED. IN THE SAME BREATH IN PARA 5.6 OF HIS ORDER HE IS DOUBTING THE AVAILABILITY OF THE LETTER DATED 16/12/2008 WHICH WAS ATTACHED AT P G. 55 AND 56 OF THE PAPER BOOK THOUGH THERE WAS NO SPECIFIC O BJECTION TAKEN BY THE LD.AO TO THE SAME. SIMILARLY FOR THE COPIES OF ACCOUNTS IN RESPECT OF CONSTRUCTION COST FOR THE AP PELLANT AS WELL AS HIS WIFE WHICH ARE ATTACHED AT PG. NOS. 16 TO 19, AND 36 TO 49 ALSO THERE WAS NO OBJECTION FROM THE LD.AO . THE APPELLANT HAS ALSO POINTED OUT THROUGH VARIOUS LETT ERS 03/08/2008, 16/12/2008 AND 24/12/2008 WHICH ARE ATT ACHED AT PG.NOS 55 TO 61 OF THE PAPER BOOK HIS CONTENTIONS REGARDING THE ISSUES UNDER CONSIDERATIONS AND HAD ALSO REFERR ED TO PRODUCTION OF RELEVANT RECORDS BEFORE THE LD.AO WHI CH HAS NOT BEEN DISPUTED BY LD.AO IN HIS REPORT TO CIT(A). TH E APPROACH OF THE CIT(A) IS TO STATE THE LEAST VERY UNFAIR. 11. THE FOLLOWING CONTENTIONS OF THE APPELLANT ARE SUPPORTED BY CASE LAWS: NO DEFECT IS FOUND IN THE BOOKS OF ACCOUNT OR IN CO ST AS PER BOOKS. THE DVO HAS ALSO NOT FOUND ANY DEFECT IN THE ACTUAL COST AND HAS SIMPLY ESTIMATED PROBABLE COST BY INFE RIOR METHOD OF VALUATION I.E. PLINTH AREA METHOD WHICH C AN RESULT IN HIGHER VALUATION BY 34%. THE DIFFERENCE IS OF 15% OF THE DVOS ESTIMATE. 12. UNDER THE CIRCUMSTANCES IN MY OPINION, IT WOULD BE FAIR AND JUST TO RESTORE BOTH APPEALS TO THE FILE OF LD. AO TO DECIDE THE ISSUES COVERED IN THE TWO APPEALS AFRESH ON THE BASIS OF THE EVIDENCES LED BY THE APPELLANT IN THE LIGHT OF THE CASE LAWS CITED BY THE APPELLANT IN THE PAPER BOOK. THE AO S HOULD NOT REPEAT THE ADDITION IN CASUAL MANNER. THE AO SHOUL D KEEP IN MIND THAT NO ADDITION CAN BE MADE IF THERE IS NO DE FECT AND MORE PARTICULARLY IF THE DIFFERENCE IS 15% OF DVOS ESTIMATE AS HELD IN THE BINDING DECISION OF THE GUJARAT HIGH CO URT. CONSISTENT WITH THE PRECEDENT, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL DEC IDE THE ISSUE AFRESH IN IT(SS)A NO.04/RJT/2010 4 THE LIGHT OF ABOVE DIRECTIONS OF THE TRIBUNAL ISSUE D VIDE ORDER DATED 10-02- 2010 FOR ASSESSMENT YEARS 2001-02 AND 2002-03 AFTER AFFORDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 6. THE NEXT GROUND OF APPEAL PERTAINS TO ADDITION O F RS.1,10,050 MADE U/S 69 TOWARDS UNEXPLAINED INVESTMENT IN FLAT. IN THE COURSE OF SEARCH PROCEEDINGS THE DEPARTMENTAL AUTHORITIES CAME ACROS S AN AGREEMENT ENTERED INTO WITH ONE SHRI ASHWIN CHUNILAL DUBAL ON STAMP PAPER OF RS.50. THIS DOCUMENT PERTAINED TO PURCHASE OF FLAT NO.S-4, SECOND FLOOR, SHAH AVENUE-2, PLOT NO.213, WARD-12B, GANDHIDHAM AND AN AMOUNT OF RS.1,10,050 WAS SHOWN TO HAVE BEEN PAID. THE AUTHO RITIES BELOW FOUND THAT THE AMOUNT OF RS.1,10,050 PAID TOWARDS PURCHAS E OF THE ABOVE FLAT DID NOT FIND MENTION IN THE BOOKS OF ACCOUNT. THEREFOR E, THE AMOUNT OF RS.1,10,050 WAS ADDED TO THE TOTAL INCOME. THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A) AND CONTENDED THAT THE SO-CALLED AGREEMENT BASED ON WHICH THE ADDITION WAS MADE, WAS A DRAFT AGREEMENT AND IN FACT THE INVESTMENT IN PURCHASE OF FLAT IS ONLY RS.80,000 WH ICH IS RECORDED IN THE BOOKS OF ACCOUNT. IN SUPPORT OF THIS ASSESSEE FILE D COPY OF BALANCE-SHEET AS ON 31-03-2004. HOWEVER, THE CIT(A) WAS NOT IMPR ESSED WITH THE SUBMISSIONS OF THE ASSESSEE. HE FOUND THAT THE AMO UNT OF RS.80,000 APPEARING IN THE BALANCE-SHEET PERTAINS TO PURCHASE OF FLAT NO.3(C) OR 3(G) IT(SS)A NO.04/RJT/2010 5 (COPY NOT CLEAR), PLOT NO.43, WARD-2B, ADIPUR. ACC ORDINGLY HE HELD THAT THE ASSESSING OFFICER WAS RIGHT IN MAKING THE IMPUG NED ADDITION. 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES. BEFORE US, TOO, THE ASSESSEES REPRESENTATIVE SUBMITTED TH AT THE ADDITION MADE BY THE ASSESSING OFFICER HAS NO LEG TO STAND SINCE THE SAME WAS MADE ON THE BASIS OF A DRAFT AGREEMENT WHICH HAS NOT MATERIALIZ ED. THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE HAS MADE INVESTMENT IN FLAT AND ONLY AN AMOUNT OF RS.80,000 WAS PAID TOWARDS PURCHASE OF FLAT WHICH IS DULY REFLECTED IN THE BOO KS OF ACCOUNT MAINTAINED BY THE ASSESSEE. HOWEVER, THE CIT(A), FINDS THAT T HE AMOUNT SHOWN IN BALANCE-SHEET RELATES TO DIFFERENT PROPERTY. THE A MOUNT PAID AS PER THE SEIZED AGREEMENT WAS NOT RECORDED IN THE BOOKS OF A CCOUNT. THEREFORE, IT IS TO BE VERIFIED HOW MANY PROPERTIES WERE PURCHASE D BY THE ASSESSEE. IN THE CIRCUMSTANCES, IN OUR OPINION THE ISSUE NEEDS R E-CONSIDERATION. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES AR E SET ASIDE AND THE ISSUE IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFIC ER FOR RECONSIDERATION. THE ASSESSING OFFICER SHALL RECONSIDER THE ISSUE AF RESH AND DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING A REASONAB LE OPPORTUNITY TO THE ASSESSEE. IT(SS)A NO.04/RJT/2010 6 8. THE LAST GROUND PERTAINS TO ADDITION OF RS.5,60, 000 MADE U/S 68 IN RESPECT OF GIFTS. THE BRIEF FACTS ARE THAT IN THE YEAR OF ACCOUNTING THE ASSESSEE HAS SHOWN TO HAVE RECEIVED GIFTS AGGREGATI NG RS.5,60,000 FROM THE FOLLOWING PERSONS: KOMAL SAMBHWANI RS.1,50,000 DEVRANG NARANG RS.2,00,000 DILIP GYANCHANDANI RS.2,10,000 TOTAL RS.5,60,000 THE ASSESSING OFFICER TREATED THE GIFTS AS INGENUIN E AS, ACCORDING TO HIM, THE CONFIRMATIONS FROM THE DONORS ARE NOT VERIFIABL E AS THE DONORS WERE NOT PRODUCED BEFORE HIM; THE ASSESSEE HAS NOT GIVEN ANY PROOF INDICATING THAT THE GIFT IS FLOWING FROM THE NRE ACCOUNT OR OTHERWI SE; ALL THE GIFTS ARE SHOWN TO HAVE BEEN FROM THE NRE ACCOUNT WHEREAS THE ASSESSEE HAS NEVER GIVEN ANY GIFT TO ANYBODY. ON APPEAL, THE CI T(A) CONFIRMED THE ADDITION. 9. WE HAVE HEARD SHRI VIMAL DESAI, THE LD.REPRESENT ATIVE FOR THE ASSESSEE AND SHRI LD BHARTI, THE LD.DR. 10. WE HAVE HEARD SUBMISSIONS ON EITHER SIDE AND HA VE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE UNDER CONSIDERATION IS WHETHER THE GIFTS AGGREGATING TO RS.5,60,000 RECEIVED BY TH E ASSESSEE FROM THREE IT(SS)A NO.04/RJT/2010 7 ALLEGED DONORS THROUGH NRE ACCOUNT ARE GENUINE GIFT S OR NOT. WE FIND THAT ON AN EXACTLY IDENTICAL ISSUE, THE RAJKOT BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS JAYANTILAL GOVINDJI KUNDALIYA IN ITA NO. 438/RJT/2005 AND OTHERS, VIDE ORDER DATED 24 TH JUNE, 2011, UNDER IDENTICAL SET OF FACTS, HAS HELD AS FOLLOWS: 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND HAVE ALSO PERUSED THE MATERIAL AVAILABLE O N RECORD. ADMITTEDLY, CASH CREDIT WAS FOUND IN THE FORM OF NR I GIFT. THE ASSESSEE CLAIMED THAT THE DONOR IS A FRIEND. ADMIT TEDLY, THE DONOR IS NOT A RELATIVE OF THE ASSESSEE. NORMALLY THERE SHOULD BE AN OCCASION FOR GIVING GIFT BY A PERSON, WHO IS NOT BLOOD RELATIVE. IN CASE OF BLOOD RELATIVE ONE MAY SAY TH AT NO OCCASION IS REQUIRED FOR GIVING GIFT. MOTHER, FATHE R, BROTHER, SISTER MAY GIFT AT ANY TIME TO THEIR CHILDREN / GRA ND CHILDREN, BROTHER, SISTER RESPECTIVELY. BUT THAT IS NOT THE CASE IN RESPECT OF OTHER PERSONS. NORMALLY, THE THIRD PARTIES WOUL D GIFT ON AN OCCASION. SUCH A GIFT IS ALSO NEEDS TO BE RECIPROC ATED APPROPRIATELY. ALL THESE FACTS WOULD DEPENDENT UPON THE FACTS OF EACH CASE. ONE CANNOT LAY DOWN ANY RULE / PRESCR IPTION FOR GIVING / RECEIVING GIFTS. IT IS TO BE ESTABLISHED SATISFACTORILY DEPENDING UPON THE FACTS OF EACH CASE. 18. WE FIND THAT THE APEX COURT IN THE CASE OF P MO HANA KALA (SUPRA) HAD AN OCCASION TO CONSIDER AN IDENTIC AL SET OF FACTS. IN THE CASE BEFORE THE APEX COURT, THE ASSE SSEE RECEIVED FOREIGN GIFT FROM A DONOR. THE PAYMENT WA S MADE THROUGH BANKING CHANNEL AND IT WAS CREDITED IN THE BANK ACCOUNT. THE DONOR IN THE CASE BEFORE APEX COURT C LAIMED THAT HE WAS PAYING TAX IN ENGLAND AND HAD SUFFICIEN T FUNDS FOR GIVING GIFT. THE APEX COURT FOUND THAT THE STATEME NT MADE BY THE DONOR IS A SELF-SERVING STATEMENT AND THERE IS NO MATERIAL EVIDENCE AS REGARDS TO HIS FINANCIAL STATUS. ULTIM ATELY, THE APEX COURT FOUND THAT THE TRANSACTIONS THOUGH APPAR ENT WERE HELD TO BE NOT REAL ONES. MAY BE THE MONEY CAME BY WAY OF BANK CHEQUE AND WAS PAID THROUGH THE PROCESS OF BAN KING IT(SS)A NO.04/RJT/2010 8 TRANSACTION BUT THAT ITSELF IS OF NO CONSEQUENCE. IN FACT, THE APEX COURT OBSERVED ON PAGE 289 OF THE ITR, AS FOLL OWS: RELYING ON THE DECISIONS OF THIS COURT IN BEJOY G OPAL MUKHERJI V. PRATUL CHANDRA GHOSE, AIR 1953 SC 153 A ND ORIENT DISTRIBUTORS V. BANK OF INDIA LTD. AIR 1979 SC 867, SHRI IYER, LEARNED SENIOR COUNSEL CONTENDED THAT THE ISS UE RELATING TO THE PROPRIETY OF THE LEGAL CONCLUSION THAT COULD BE DRAWN ON THE BASIS OF PROVED FACTS GIVES RISE TO A QUESTION OF LAW AND, THEREFORE, THE HIGH COURT IS JUSTIFIED IN INTERFERI NG IN THE MATTER SINCE THE AUTHORITIES BELOW FAILED TO DRAW A PROPER AND LOGICAL INFERENCE FROM THE PROVED FACTS. WE ARE UNABLE TO PERSUADE OURSELVES TO ACCEPT THE SUBMISSIONS. THE FINDINGS OF FACT ARRIVED AT BY THE AUTHORITIES BELOW ARE BASED ON PR OPER APPRECIATION OF THE FACTS AND THE MATERIAL AVAILABL E ON RECORD AND SURROUNDING CIRCUMSTANCES. THE DOUBTFUL NATURE OF THE TRANSACTION AND THE MANNER IN WHICH THE SUMS WERE F OUND CREDITED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE HAVE BEEN DULY TAKEN INTO CONSIDERATION BY THE AUTH ORITIES BELOW. THE TRANSACTIONS THOUGH APPARENT WERE HELD TO BE NOT REAL ONES. MAY BE THE MONEY CAME BY WAY OF BANK CH EQUES AND PAID THROUGH THE PROCESS OF BANKING TRANSACTION BUT THAT ITSELF IS OF NO CONSEQUENCE. IN VIEW OF THE ABOVE MERELY BECAUSE THE TRANSACTION WAS MADE THROUGH BANKING CHANNEL THAT ALONE WILL NOT PR OVE THE GENUINENESS OF THE TRANSACTION. SOMETHING MORE IS REQUIRED TO BE PROVED IN RESPECT OF FOREIGN GIFT. BOTH THE AUTHORITIES BELOW HAD NO OCCASION TO CONSIDER THIS JUDGMENT OF THE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). THE AS SESSEE HAD ALSO NO OCCASION TO EXPLAIN THE CONSEQUENCE OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). THEREFORE, IN OUR OPINION, THE MATTER NEE DS TO BE RECONSIDERED BY THE ASSESSING OFFICER IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA) AFTER GIVING ADEQUATE OPPORTUNITY TO THE AS SESSEE. 19. WE HAVE ALSO GONE THROUGH THE DECISION OF THE M UMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MRS. ASHA HAMP ANNAVAR (SUPRA). IN THE CASE BEFORE THE MUMBAI BENCH OF TH E TRIBUNAL, THE DONOR WAS FOUND TO BE NOT A STRANGER TO THE ASS ESSEE. THE MUMBAI BENCH AFTER EXAMINING THE FACTS OF THE C ASE FOUND THAT THE GENUINENESS OF THE TRANSACTION WAS E STABLISHED IT(SS)A NO.04/RJT/2010 9 BY THE ASSESSEE. ON FURTHER APPEAL BY THE REVENUE BEFORE THE BOMBAY HIGH COURT, THE BOMBAY HIGH COURT FOUND THAT THERE IS ABSOLUTELY NO QUESTION OF LAW ARISE FOR CONSIDER ATION. SIMILARLY, THE APEX COURT REJECTED THE SPECIAL LEAV E PETITION OF THE REVENUE ON THE GROUND THAT THE HIGH COURT FO UND THAT THE GIFT WAS GENUINE AND NO MATERIAL WAS AVAILABLE ON RECORD TO SHOW THAT THE CONFIRMATION WAS NOT CORRECT. THE REFORE, IT IS CLEAR THAT EACH CASE HAS TO BE EXAMINED ON ITS OWN FACTS AND WE HAVE TO FIND OUT THE GENUINENESS OF THE TRANSACT ION. THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL UPHOLD ING THE GENUINENESS OF THE TRANSACTION WAS CONFIRMED BY THE BOMBAY HIGH COURT ON THE GROUND THAT THERE IS NO QUESTION OF LAW. NO LAW WAS LAID DOWN BY THE APEX COURT WHILE REJECTING THE SLP. HOWEVER, IN THE CASE OF P MOHANA KALA (SUPRA), THE HONBLE APEX COURT EXAMINED THE ISSUE IN DEPTH AND CATEGORI CALLY HELD THAT MERELY BECAUSE THE TRANSACTION WAS MADE THROUG H BANKING CHANNEL THAT ALONE WILL NOT ESTABLISH THE G ENUINENESS OF THE TRANSACTION. MOREOVER, BOTH THE AUTHORITIES BELOW, HAVE NOT EXAMINED THE ISSUE OF FOREIGN GIFT IN THE LIGHT OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). THEREFORE, IN OUR OPINION, THE FACTS OF T HE CASE NEED TO BE EXAMINED IN THE LIGHT OF THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). ACCORDINGLY WE SET ASIDE THE ORDERS OF LOWER AUTHOR ITIES AND REMAND BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE ISSUE AFRES H AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW A FTER CONSIDERING THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF P MOHANA KALA (SUPRA). NEEDLESS TO POINT O UT THAT THE ASSESSING OFFICER SHALL GIVE SUFFICIENT OPPORTUNITY TO THE ASSESSEE BEFORE DECIDING THIS ISSUE. 11. SINCE THE FACTS OF THE ISSUE IN HAND ARE IDENTI CAL TO THE CASE ALREADY DECIDED BY THE TRIBUNAL, CONSISTENT WITH THE PRECED ENT, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE AS SESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE IN THE LIGHT OF JUDGMENT OF THE APEX COURT IN THE CASE OF IT(SS)A NO.04/RJT/2010 10 CIT VS P MOHANA KALA (2007) 291 ITR 278 (SC) AFTER AFFORDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26-08-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 26 TH AUGUST, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-IV, AHMEDABAD 4. THE CIT, CENTRAL-II, AHMEDABAD 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT