DIVEN DEMBLA, MUMBAI v. DCIT 7(1), MUMBAI

CO 119/MUM/2013 | 2005-2006
Pronouncement Date: 03-07-2013 | Result: Allowed

Appeal Details

RSA Number 11919923 RSA 2013
Assessee PAN AFFPD0847Q
Bench Mumbai
Appeal Number CO 119/MUM/2013
Duration Of Justice 23 day(s)
Appellant DIVEN DEMBLA, MUMBAI
Respondent DCIT 7(1), MUMBAI
Appeal Type Cross Objection
Pronouncement Date 03-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted Not Allotted
Tribunal Order Date 03-07-2013
Assessment Year 2005-2006
Appeal Filed On 10-06-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI R.S. SYAL ACCOUNTANT MEMBER & SHRI SANJAY GARG JUDICIAL MEMBER ITA NO. 3709 /MUM/2012 ASSESSMENT YEAR: 2005-06 DY. COMMISSIONER OF INCOME TAX-7(1) ROOM NO. 622 M.K. ROAD MUMBAI-400 020 VS. MR. DIVEN DEMBLA 8-A HORMAID VILLA CARMICHAEL ROAD MUMBAI-400 026 PAN: AFFPD0847Q (APPELLANT) (RESPONDENT) AND C.O. NO. 119 /MUM/2013 (ARISING OUT OF ITA NO. 3709/MUM/2012 FOR ASSESSME NT YEAR: 2005-06) MR. DIVEN DEMBLA 8-A HORMAID VILLA CARMICHAEL ROAD MUMBAI-400 026 PAN: AFFPD0847Q VS. DY. COMMISSIONER OF INCOME TAX-7(1) ROOM NO. 622 M.K. ROAD MUMBAI-400 020 (CROSS OBJECTOR) (RESPONDENT) REVENUE BY : MR. O.P. MEENA ASSESSEE BY : ASHOK PURI DATE OF HEARING : 18.06.2013 DATE OF PRONOUNCEMENT : 03.07.2013 O R D E R PER SANJAY GARG JM: WITH THIS COMMON ORDER WE WILL DISPOSE OF APPEAL O F THE REVENUE AS WELL AS CROSS OBJECTIONS OF THE ASSESSEE DIRECTED AGAINST T HE ORDER DATED 13.03.2012 OF THE CIT(A) RELEVANT TO A.Y. 2005-06. 2. REVENUE HAS ASSAILED THE ORDER OF THE CIT(A) AGA INST DELETION OF THE ADDITION OF RS. 7 50 000/- BEING NOTIONAL INTEREST ON THE IN TEREST FREE SECURITY DEPOSIT OF RS. ITA NO. 3709 /MUM/2012 & C.O. NO. 119 /MUM/2013 ( ARISING OUT OF ITA NO. 3709/MUM/2012) THE DY. C.I.T. 7(1) V.MR. DIVEN DEMBLA MUMBAI ASSESSMENT YEAR: 2005-06 2 50 00 000/- INTO THE RENTAL INCOME OF THE ASSESSEE MADE BY THE A.O AND FURTHER AGAINST THE DELETION OF AN AMOUNT OF RS. 6 38 191 A DDED BY THE A.O. INTO THE INCOME OF THE ASSESSEE AS UNEXPLAINED EXPENDITURE. THE ASS ESSEE HAS FILED THE CROSS OBJECTIONS ALLEGING CLERICAL MISTAKE RELATING TO TH E FACTUAL FINDINGS GIVEN BY THE LEARNED CIT(A) WHILE DELETING THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED EXPENDITURE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E AN INDIVIDUAL FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 18 09 690/- . DURING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) OF THE ACT ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD SHOWN RENTAL INCOME OF RS. 3 LAKHS FROM HIS PROPERTY AT PRABHADEVI MUMBAI RENTED OUT TO M/S REITER INDIA PVT. LTD. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE AMOUNT OF RENTAL INCOME HENCE DEPUTED AN INSPECTOR OF INCOME TAX TO ENQUIRE ABOUT THE MARKET RATE OF RENT . THE SAID INSPECTOR SUBMITTED HIS REPORT DATED 19.10.2007 TO THE A.O. WHEREIN H E REPORTED THAT AN AVERAGE RENT OF THE PROPERTY WAS FROM RS. 55 000/- TO RS. 60 000 /- PER MONTH IN THE SAID SOCIETY. THE A.O. CALLED FOR THE REPLY OF THE ASSESSEE AS TO WHY THE RENT OF THE FLAT OF THE ASSESSEE BE NOT ASSESSED AS PER THE REPORT OF THE I NSPECTOR. IN REPLY THE ASSESSEE DISPUTED THE REPORT OF THE A.O. AND FURTHER STATED THAT THE SAID INSPECTOR NEVER VISITED THE LOCALITY RATHER THE REPORT WAS PREPARED BY HIM ON THE BASIS OF SOME TELEPHONIC CONVERSATION WITH SOME REAL ESTATE BROKE R. THE ASSESSEE ALSO REQUESTED FOR GIVING HIM THE OPPORTUNITY TO CROSS EXAMINE THE INSPECTOR ON THIS POINT. HOWEVER THE A.O. REJECTED THE CONTENTION OF THE AS SESSEE AND DETERMINED THE RENTAL VALUE OF THE PROPERTY BY ADDING NOTIONAL INT EREST @ 15% ON THE INTEREST FREE SECURITY DEPOSIT OF RS. 50 LAKHS AMOUNTING OF RS. 7 50 000/-. THE A.O. FURTHER ADDED A SUM OF RS. 6 38 191 INTO THE INCOME OF THE ASSES SEE AS UNEXPLAINED EXPENDITURE BASED ON AIR INFORMATION RELATING TO PURCHASES MADE BY THE ASSESSEE THROUGH THE CREDIT CARDS PERTAINING TO CITY BANK AND STANDARD C HARTERED BANK. 4. BEING AGGRIEVED THE ASSESSEE FILED APPEAL BEFOR E THE CIT(A). DURING THE APPELLATE PROCEEDINGS THE LEARNED CIT(A) CALLED FO R A REMAND REPORT FROM THE A.O. ITA NO. 3709 /MUM/2012 & C.O. NO. 119 /MUM/2013 ( ARISING OUT OF ITA NO. 3709/MUM/2012) THE DY. C.I.T. 7(1) V.MR. DIVEN DEMBLA MUMBAI ASSESSMENT YEAR: 2005-06 3 DIRECTING HIM TO MAKE AVAILABLE THE RELEVANT MATER IAL TO DETERMINE THE MARKET RATE OF RENT OF THE PROPERTY IN QUESTION ON THE DAY ON WHICH IT WAS RENTED TO THE TENANT IN QUESTION AND FURTHER TO MAKE NECESSARY ENQUIRIES IN THIS REGARD FROM THE SOCIETY/NEARBY AREA IN RESPECT OF THE MARKET RATE W HICH THE FLAT COULD HAVE FETCHED AND ALSO TO ALLOW THE ASSESSEE TO CROSS EXAMINE THE INSPECTOR. IT WAS FURTHER DIRECTED TO MAKE NECESSARY ENQUIRIES REGARDING AIR INFORMATION RELATING TO EXPENDITURE OF RS. 6 38 191/- FROM THE CONCERNED BA NKS AND TO MAKE THE NECESSARY INFORMATION AVAILABLE TO THE ASSESSEE AND TO VERIFY THE GENUINENESS OF THE FACTS. THE CONCERNED A.O. INSTEAD OF MAKING ENQUIRIES REGARDIN G THE FAIR/MARKET RENT OF THE PROPERTY AS ON THE DAY OF TENANCY REPORTED IN THE REMAND REPORT DATED 28.02.2011 THAT THE ADDITION WAS NOT MADE ON THE BASIS OF REPO RT OF THE INSPECTOR RATHER THE SAME WAS MADE BY ADDING BACK 15% NOTIONAL INTEREST ON THE INTEREST FREE SECURITY DEPOSIT OF RS. 50 LAKHS. HE THUS REPORTED THAT THE RE WAS NO NECESSITY TO MAKE ANY ENQUIRY REGARDING THE FAIR/MARKET RENT VALUE OF THE PROPERTY OR TO ALLOW THE ASSESSEE AN OPPORTUNITY TO CROSS EXAMINE THE INSPECTOR REGAR DING HIS REPORT. REGARDING ADDITION ON ACCOUNT OF AIR INFORMATION THE A.O. RE PORTED THAT THE INFORMATION WAS CALLED FOR FROM THE CONCERNED BANKS AND THE INFORMA TION TILL DATE WAS NOT RECEIVED; AS AND WHEN THE SAME WOULD BE RECEIVED IT WOULD BE SENT TO THE CIT(A). THE LEARNED CIT(A) WHILE ADJUDICATING ON THE APPE AL OBSERVED THAT THE INCOME ON THE HOUSE PROPERTY WAS TO BE COMPUTED ON THE BASIS OF ANNUAL LETTING VALUE AS PER SECTION 23 OF THE INCOME TAX ACT 196 1. HE FURTHER OBSERVED THAT THE SAID RENTAL VALUE WAS TO BE DETERMINED ON THE BASIS OF MUNICIPAL VALUATION/RATEABLE VALUE ADOPTED BY MUNICIPAL AUTHORITIES OR THE ACTUA L RENT RECEIVED BY THE ASSESSEE WHICHEVER IS HIGHER. HE FURTHER OBSERVED THAT IN TH E CASE IN HAND THE ASSESSING OFFICER HAD TRIED TO DETERMINE THE MARKET RATE OF T HE PROPERTY IN OCTOBER 2007 WHEREAS THE SAME WAS LET OUT FIVE YEARS BACK FROM T HE SAID DATE. EVEN THE BASIS OF ADOPTING THE VALUE BY THE ASSESSING OFFICER WAS A S TATEMENT OF REAL ESTATE BROKER GIVEN ON PHONE TO THE INCOME TAX INSPECTOR. THE REP ORT OF THE INSPECTOR WAS NOT MADE AVAILABLE TO THE ASSESSEE THOUGH IT WAS USED A GAINST HIM. HE FURTHER OBSERVED THAT WHOLE EXERCISE WAS CARRIED OUT IN AN ARBITRARY MANNER. THERE WAS NO MENTIONED ITA NO. 3709 /MUM/2012 & C.O. NO. 119 /MUM/2013 ( ARISING OUT OF ITA NO. 3709/MUM/2012) THE DY. C.I.T. 7(1) V.MR. DIVEN DEMBLA MUMBAI ASSESSMENT YEAR: 2005-06 4 IN THE ASSESSMENT ORDER THAT THE FLAT OWNED BY THE ASSESSEE WOULD FETCH A PARTICULAR RENT IN THE SOCIETY. LEARNED CIT(A) THUS DELETED TH E ADDITION MADE BY THE A.O. OF THE NOTIONAL INTEREST OF RS. 7 50 000/- IN THE INCO ME OF THE ASSESSEE OBSERVING AS UNDER:- 2.4.1. THE DECISION RELIED BY THE ASSESSING OFFICE R IN THE CASE OF FIZZ DRINKS LTD. (95) TTJ 249 (DEL) ARE DISTINGUISHABLE ON FACTS. THE FACTS IN THAT CASE WAS THAT THE AGREED RENT WAS RS. 1 PER MO NTH AND INTEREST FREE SECURITY DEPOSIT WAS OF RS. 1 62 38 000/- TAKEN BY THE OWNER. IT WAS THIS FACTOR WHICH MADE IN THE MIND OF THE TRIBUNAL AS I S EVIDENT FROM ITS OBSERVATIONS IN PARA 8 OF THE ORDER WHERE THEY HAV E HELD ANY FAIR JUDICIAL ADMINISTRATION WOULD NOT ALLOW SUCH THINGS TO HAPPE N. IN THE PRESENT CASE THE APPELLANT HAD OFFERED RENT OF RS. 25 000/ - PER MONTH AND DEPOSITED A SUM OF RS. 50 LAKHS AS INTEREST FREE SE CURITY DEPOSIT. NOTIONAL RENT ON INTEREST FREE SECURITY DEPOSIT/RENT RECEIVE D IN ADVANCE CANNOT BE ADDED IN VIEW OF HONBLE BOMBAY HIGH COURT DECISION IN THE CASE OF J.K. REALTORS (248 ITR 723) AS ALSO AS PER DECISION OF F ULL BENCH OF HONBLE DELHI HIGH COURT IN THE CASE OF MONI KUMAR SUBHA. T O SUM UP THE ASSESSING OFFICER HAS FAILED TO DETERMINE THE FAIR/ REASONABLE RENT EXPECTED TO BE FETCHED BY THE PROPERTY IN A PROPER MANNER. THE APPELLANT HAS OFFERED RS. 25 000/- PER MONTH AS REN TAL INCOME FROM ABOVE PROPERTY. THE NOTIONAL INTEREST ON INTEREST F REE SECURITY CANNOT BE TAKEN AS A DETERMINATIVE FACTOR TO ARRIVE AT FAIR R ENT. THE ADDITION IS THEREFORE DELETED. THIS GROUND OF APPEAL IS ALLOWE D. 5. THE REVENUE IS THUS IN APPEAL BEFORE US. LEAR NED DR BEFORE US HAS SUBMITTED THAT IN THE CASE IN HAND THE INTEREST FR EE SECURITY DEPOSIT WAS ABOUT 200 TIMES OF THE MONTHLY RENT OF THE PROPERTY HENCE TH E ASSESSEE HAS SHOWN A VERY LOW RENT OF THE PROPERTY WHEREAS THE ACTUAL FAIR MARK ET RENT OF THE PROPERTY WAS MUCH MORE. HE JUSTIFIED THE ACTION OF THE A.O. IN ADDING 15% NOTIONAL INTEREST INTO THE RENTAL INCOME OF THE ASSESSEE. ON THE OTHER HAND T HE LEARNED AR BEFORE US HAS RELIED UPON THE AUTHORITY OF THE FULL BENCH OF THE DELHI HIGH COURT STYLED AS CIT V. MONI KUMAR SUBBA (2011) 333 ITR 38 TO SUBMIT THAT NO ADDITION CAN BE MADE OF NOTIONAL INTEREST ON THE INTEREST FREE SECURITY DEP OSIT WHILE DETERMINING THE ANNUAL LETTING VALUE UNDER SECTION 23(1)(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LEAR NED REPRESENTATIVES OF THE PARTIES. THE HONBLE FULL BENCH OF THE DELHI HIGH C OURT IN THE CASE OF MONI KUMAR ITA NO. 3709 /MUM/2012 & C.O. NO. 119 /MUM/2013 ( ARISING OUT OF ITA NO. 3709/MUM/2012) THE DY. C.I.T. 7(1) V.MR. DIVEN DEMBLA MUMBAI ASSESSMENT YEAR: 2005-06 5 SUBBA (SUPRA) HAS HELD THAT SECTION 23 (1)(A) REQU IRES DETERMINATION OF THE FAIR RENT BEING THE SUM FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR. THE AO HAS TO MAKE AN ENQUIRY A S TO WHAT WOULD BE THE POSSIBLE RENT THAT THE PROPERTY MIGHT FETCH. IF HE FINDS THA T THE ACTUAL RENT RECEIVED IS LESS THAN THE FAIR/MARKET RENT BECAUSE THE ASSESSEE HA S RECEIVED ABNORMALLY HIGH INTEREST FREE SECURITY DEPOSIT HE CAN UNDERTAKE NE CESSARY EXERCISE IN THAT BEHALF. FOR DETERMINATION OF FAIR RENT THE ASSESSING OFFIC ER CAN TAKE INTO ACCOUNT VARIOUS FACTORS INCLUDING STANDARD RENT. IF THE STANDARD RE NT IS NOT FIXED THEN THE PROCEDURE PROVIDED UNDER THE RENT CONTROL ACT FOR FIXATION OF STANDARD RENT CAN BE TAKEN INTO CONSIDERATION. HOWEVER THE ALV FIXED BY THE MUNIC IPAL AUTHORITIES CANNOT BE THE SOLE CRITERIA FOR DETERMINING THE FAIR RENT OF THE PROPERTY. THE AO CAN IGNORE THE MUNICIPAL VALUATION IF HE FINDS THAT THE SAME IS NO T BASED ON RELEVANT MATERIAL FOR DETERMINING THE FAIR RENT IN THE MARKET AND THERE IS SUFFICIENT MATERIAL ON RECORD FOR TAKING A DIFFERENT VALUATION. IN DETERMINING TH E REASONABLE/FAIR RENT EXTRANEOUS CIRCUMSTANCES MAY INFLATE/DEFLATE THE FAIR RENT. VARIOUS CIRCUMSTANCES CAN BE TAKEN INTO CONSIDERATION BY THE AO WHILE DETERMINING THE FAIR RENT THOUGH NO PARTICULAR TEST CAN BE LAID DOWN AND IT WOULD DEPEND ON FACTS OF EACH CASE. 7. IN THE CASE IN HAND WE MAY OBSERVE THAT THE LEA RNED CIT(A) WHILE CALLING FOR REMAND REPORT VIDE LETTER DATED 26.07.2010 (COPY PL ACED IN APPEAL PAPER BOOK AT PAGE 10) HAD IN SPECIFIC TERMS DIRECTED THE AO TO C ONDUCT ENQUIRY SO AS TO DETERMINE THE FAIR/MARKET RENT OF THE PROPERTY. EVE N HE HAD DIRECTED THE AO TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE INSPECTOR REGARDING HIS REPORT RELATING TO THE MARKET VALUE. HOWEVER THE AO NEITH ER MADE AVAILABLE THE SAID REPORT TO THE ASSESSEE NOR CONDUCTED ANY ENQUIRY TO DETERM INE THE FAIR/MARKET RENTAL VALUE OF THE PROPERTY. DESPITE DIRECTIONS BY THE CIT(A) HE VIDE LETTER DATED 28.02.2011 (COPY PLACED IN APPEAL PAPER BOOK AT PAGE 11) REPOR TED THAT THERE WAS NO REQUIREMENT TO DO SO. EVEN HE DID NOT ALLOW THE ASS ESSEE TO CROSS EXAMINE THE INSPECTOR. WHEN DESPITE DIRECTIONS BY THE CIT(A) T HE ASSESSING OFFICER DID NOT CHOOSE TO DETERMINE THE FAIR/MARKET RENTAL VALUE OF THE PROPERTY BY MAKING NECESSARY ENQUIRIES THEN IN OUR VIEW THE RENTAL INC OME OFFERED BY THE ASSESSEE IS TO ITA NO. 3709 /MUM/2012 & C.O. NO. 119 /MUM/2013 ( ARISING OUT OF ITA NO. 3709/MUM/2012) THE DY. C.I.T. 7(1) V.MR. DIVEN DEMBLA MUMBAI ASSESSMENT YEAR: 2005-06 6 B E TREATED AS THE FAIR/MARKET RENTAL INCOME OR THE ANNUAL LETTING VALUE OF THE PROPERTY. THE HONBLE FULL BENCH OF THE DELHI HIGH COURT HAS HELD THAT THE NOTIONAL INTEREST ON THE INTEREST FREE SECURITY DEPOSIT CANN OT BE TAKEN AS DETERMINING FACTOR TO ARRIVE AT THE FAIR RENT. IN VIEW OF LAW LAID DOW N BY THE HONBLE DELHI HIGH COURT THE NOTIONAL INTEREST CANNOT BE ADDED BACK TO THE R ENTAL INCOME OF THE ASSESSEE. AT THIS STAGE THE LEARNED DR HAS SUBMITTED THAT TH E MATTER BE REMANDED BACK TO THE AO FOR MAKING NECESSARY ENQUIRIES RELAT ING TO THE FAIR/MARKET RENTAL VALUE OF THE PROPERTY. WE ARE UNABLE TO ACCEPT THIS CONTENTION OF THE LEARNED DR AT THIS STAGE. IN VIEW OF THE FACT THAT DESPITE SPECIF IC DIRECTIONS GIVEN BY THE CIT(A) THE AO DID NOT CHOOSE TO COMPLY THE SAME AND TO MAK E ENQUIRIES REGARDING THE FAIR RENTAL VALUE OF THE PROPERTY THE ASSESSEE CANNOT B E HARASSED BY PROLONGING THE MATTER FURTHER ON THE ISSUE ESPECIALLY WHEN THE A O HIMSELF HAS CHOSEN NOT TO MAKE SUCH ENQUIRY. THE LEARNED AR BEFORE US HAS SUBMITTE D THAT EVEN FOR THE PREVIOUS YEAR AS WELL AS FOR THE SUBSEQUENT YEAR NO OBJECTIO N HAS BEEN RAISED BY THE REVENUE REGARDING THE ANNUAL LETTING VALUE AND THE AMOUNT O F RENTAL INCOME SHOWN BY THE ASSESSEE HAS BEEN ACCEPTED FOR THE SAID YEARS. THER E IS NO EVIDENCE ON THE FILE THAT ANNUAL RENTAL VALUE OF THE PROPERTY WAS HIGHER DURI NG THE RELEVANT YEAR THAN THAT DECLARED BY THE ASSESSEE. IN VIEW OF OUR ABOVE OBSE RVATION WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE REVENUE AND A S SUCH THE FINDINGS OF THE LEARNED CIT(A) ON THIS ISSUE ARE HEREBY UPHELD. SO FAR THE SECOND ISSUE RELATING TO UNEXPLAINED EXP ENDITURE IS CONCERNED THE LEARNED AR HAS SUBMITTED THAT ASSESSEE HAS NOT MADE ANY PURCHASES THROUGH HIS CREDIT CARDS AS HAS BEEN ALLEGED BY THE REVENUE. H E HAS ALSO RELIED UPON CERTAIN BILLS OF CITI BANK AND COPY OF E-MAIL FROM STANDARD CHARTERED BANK TO SUBMIT THAT NO SUCH PURCHASES WERE MADE THROUGH CREDIT CARDS BY TH E ASSESSEE. HOWEVER IT MAY BE OBSERVED THAT IN PARA 3.1 OF HIS ORDER THE LEAR NED CIT(A) HAS MENTIONED ABOUT REMAND REPORT OF THE AO DATED 10.02.2012 VIDE WHIC H IT WAS REPORTED BY THE AO THAT THE LETTERS WERE ISSUED TO THE SAID BANKS WHO IN THEIR REPLY HAD FURNISHED THE STATEMENT OF CREDIT CARDS SHOWING COMPLETE DETAILS OF TRANSACTIONS CARRIED OUT BY THE ASSESSEE BETWEEN APRIL 2004 TO MARCH 2005. ON VER IFICATION OF DETAILS IT WAS FOUND ITA NO. 3709 /MUM/2012 & C.O. NO. 119 /MUM/2013 ( ARISING OUT OF ITA NO. 3709/MUM/2012) THE DY. C.I.T. 7(1) V.MR. DIVEN DEMBLA MUMBAI ASSESSMENT YEAR: 2005-06 7 THAT THE TOTAL TRANSACTION OF RS. 2 47 991/- AND RS . 3 90 200/- HAD BEEN CARRIED OUT BY THE ASSESSEE DURING THE RELEVANT PERIODS. THE AS SESSEE HAS DISPUTED THIS FACTUAL FINDING IN HIS CROSS OBJECTIONS AND HAS STRESSED TH AT NEITHER THERE WAS ANY SUCH REMAND REPORT RECEIVED BY CIT(A) NOR ANY SUCH EXPEN DITURE WAS MADE BY THE ASSESSEE. WE MAY OBSERVE THAT THOUGH THE LEARNED CI T(A) HAS OBSERVED THAT THE TRANSACTIONS AS NOTED ABOVE WERE MADE BY THE ASSESS EE HOWEVER IN CONCLUSION HE HAS DELETED THE ADDITION MADE BY THE AO IN THIS RES PECT. HENCE THE FINDING PORTION OF THE ORDER OF LEARNED CIT(A) IS IN CONTRADICTION TO THE FACTUAL FINDING. SO THE MATTER ON THIS ISSUE IS RESTORED BACK TO THE LEARNED CIT(A ) TO VERIFY AS TO WHETHER THERE WAS ANY MISTAKE WHILE GIVING THE FACTUAL FINDINGS GIVEN IN THIS RESPECT AND TO GIVE HIS FINDINGS AFRESH ON THE ISSUE AFTER GIVING BOTH THE PARTIES OPPORTUNITY OF HEARING. SO IN VIEW OF OUR OBSERVATIONS THE APPEAL OF THE REVE NUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE CROSS OBJECTIONS OF THE ASSESSEE ARE ALSO ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTIONS FILED BY THE ASSE SSEE ARE HEREBY ALSO ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3RD DAY OF JULY 2013. SD/- SD/- (R.S. SYAL) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 03.07.2013. *KKM COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT (A) CONCERNED MUMBAI THE DR D BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.