M/s. Sarjan Realities Limited, Ahmedabad v. The ACIT.,Cicle-8,, Ahmedabad

ITA 1368/AHD/2008 | 2005-2006
Pronouncement Date: 21-01-2011 | Result: Partly Allowed

Appeal Details

RSA Number 136820514 RSA 2008
Assessee PAN AAACE3472H
Bench Ahmedabad
Appeal Number ITA 1368/AHD/2008
Duration Of Justice 2 year(s) 9 month(s) 5 day(s)
Appellant M/s. Sarjan Realities Limited, Ahmedabad
Respondent The ACIT.,Cicle-8,, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 21-01-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 21-01-2011
Date Of Final Hearing 12-01-2011
Next Hearing Date 12-01-2011
Assessment Year 2005-2006
Appeal Filed On 16-04-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER ITA NO.1368 & 1629/AHD/2008 ASSESSMENT YEAR:2005-06 DATE OF HEARING:13.1.11 DRAFTED:17.1.11 M/S. SARJAN REALITIES LIMITED SUZLON HOUSE 5 SHRIMALI SOCIETY NAVRANGPURA AHMEDABAD PAN NO.AAACE3472H ACIT (OSD) CIRCLE-8 4 TH FLOOR AJANTA COMMISSION. CENTRE A WING ASHRAM ROAD AHMEDABAD V/S . V/S . ACIT CIRCLE-8 AHMEDABAD SARJAN REALITIES LTD. SUZLON 05 SHRIMALI SOCIETY NR. SHRI KRISHNA COMPLEX NAVRANGPURA AHMEDABAD (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI TUSHAR P HEMANI AR REVENUE BY:- SHRI RAJDEEP SINGH SR-DR O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THESE CROSS APPEALS BY ASSESSEE AND REVENUE ARE AR ISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-X IV AHMEDABAD IN APPEAL NO CIT(A)-XIV/C.8/278/2007-08 DATED 03-03-20 08. THE ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 2 ASSESSMENT WAS FRAMED BY ACIT (OSD) CIRCLE-8 AHME DABAD U/S143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED T O AS THE ACT) VIDE HIS ORDER DATED 27-12-2007 FOR THE ASSESSMENT YEAR 200 5-06. FIRST WE WILL TAKE UP ASSESSEES APPEAL IN ITA NO.1 368/AHD/2008. 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) IN CONFIRMING THE ACTION OF ASSESSING OFFICE R NOT REDUCING THE CONDITIONAL ADDITION BUT ADDED IN COMPUTATION OF IN COME. FOR THIS ASSESSEE HAS RAISED THE FOLLOWING GROUND NO.1 & 2 :- 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ACTION OF AO IN NOT REDUCING THE CONDITIONAL AD DITIONAL AMOUNT OF RS.362.50 LACS ADDED IN THE COMPUTATION OF INCOM E TO COVER ANY ERRORS OMISSIONS DISCREPANCIES ETC. MADE IN REFER ENCE TO THE ALL INDIA SURVEY ACTION AS DETAILED IN THE LETTER DTD. 12-12-2006 OF THE APPELLANT ON FAILING TO IDENTIFY ANY SUCH SHORT CO MINGS IN THE ANNUAL AUDITED ACCOUNTS FILED WITH THE RETURN OF IN COME. 2. ALTERNATIVELY AND WITHOUT PREJUDICE IF ANY OF T HE AMOUNT OF ADDITION / DISALLOWANCE IS CONFIRMED THE BENEFIT O F TELESCOPING MAY BE GRANTED AGAINST THE CONDITIONAL ADDITIONAL AMOUN T ADDED IN THE COMPUTATION OF INCOME REFERRED TO HEREIN ABOVE. 3. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SH. TUSHAR HEMANI STATED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOU R OF ASSESSEE IN ASSESSEES OWN CASE IN ITA NO.3762/AHD/2008 VIDE ORDER DATED 17-04- 2009 FOR ASSESSMENT YEAR 2006-07 ON EXACTLY IDENTIC AL FACTS WHEREIN TRIBUNAL HELD AS UNDER:- 11.WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE TH ROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE HAVE ALSO PERUSED THE CASE RECORDS INCLUDING THE ASSESSMENT ORDER AS WELL AS THE ORDER OF CIT(A). WE HAVE ALSO PERUSED THE ASSESSEES PAP ER BOOK CONTAINING PAGES-1 TO 24 AND ALSO CONSIDERED THE CA SE LAWS RELIED ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 3 ON BY BOTH THE SIDES. WE FIND FROM THE RECORDS THAT THE ASSESSEE- COMPANY WAS SUBJECTED TO SURVEY ACTION U/S.133A OF THE ACT ON 05-04-2006. DURING THE COURSE OF SURVEY ACTION TH E DEPARTMENT FOUND MANY DOCUMENTS BOOKS OF ACCOUNT RECORDS ON ELECTRONIC MEDIA AND OTHER MATERIALS WHICH WERE IMPOUNDED. T HERE WAS NOT A SINGLE PIECE OF INCRIMINATING PAPER OR DOCUMENT O R EVIDENCE OF ANY NATURE WERE FOUND WHICH SUGGESTS THAT UNACCOUN TED / UNDISCLOSED INCOME REMAINS HIDDEN OR NOT LIKELY TO BE DISCLOSED TO THE DEPARTMENT. THE ASSESSEE DISCLOSED ADDITIONAL INCOME OF RS.7 CRORES WITH THE CONDITION THAT THE ASSESSEE DO NT WANT TO ENGAGE IN LONG DRAWN PROTECTED LITIGATION AND WANT TO BUY MENTAL PEACE AND TO MAINTAIN CORDIAL RELATION WITH THE DEP ARTMENT AND ALSO TO COVER ANY LIKELY ERRORS OMISSIONS DISALLO WANCES CLAIMS ETC. THE ASSESSEES INTENTION CAN BE INFERRED FROM THE LETTER DATED 29-02-2008 AND THE RELEVANT TEXT IS REPRODUCED IN PARA-5 PAGE-4 TO 6 OF THIS ORDER. EVEN THE AO COULD NOT FIND OUT ANY DISCREPANCY IN THE IMPOUNDED BOOKS OF ACCOUNT LOOSE PAPER DOC UMENTS REGISTERS RECORDS ON ELECTRONIC MEDIA SUCH AS CD HARD DISK FLOPPY DISK ETC. THE AO HAS ACCEPTED THE VOLUNTARY DISCLOSURE WITHOUT POINTING OUT ANY MISTAKE IN THE IMPOUNDED D OCUMENTS. SPECIFICALLY THERE IS NO INCOME FOR WHICH THE ASSES SEE HAS MADE VOLUNTARY DISCLOSURE AND THE DEPARTMENT ALSO COULD NOT POINT OUT ANY DISCREPANCY IN THE BOOKS OF ACCOUNT AND THE IMP OUNDED MATERIALS. THE VOLUNTARY DISCLOSURE WAS MADE DURIN G THE COURSE OF POST-SURVEY PROCEEDINGS WHEN THE ASSESSEE-COMPA NY FILED LETTERS DATED 21-06-2006 AND 19-06-2006 EVEN THOUG H THE ASSESSEE WAS NOT SUPPLIED THE COPIES OF IMPOUNDED M ATERIALS TILL THE FINALIZATION OF ASSESSMENT. EVEN THE ASSESSEE V IDE LETTER DATED 12-12-2006 REQUIRED THE DEPARTMENT TO PROVIDE PHOTO COPIES OF IMPOUNDED MATERIALS BUT THE IMPOUNDED MATERIAL WAS NOT SUPPLIED AND DISCLOSURE WAS TAKEN FROM THE ASSESSEE-COMPANY. WHATEVER MAY BE THE CASE THE FIRST CRUCIAL QUESTION BEFORE US IS TO DECIDE AS TO WHETHER THE DISCLOSURE CAN BE SUSTAINED SIMPLY O N THE BASIS OF STATEMENT RECORDED AT THE TIME OF SURVEY. THIS QUES TION HAS BEEN ANSWERED BY THE HON'BLE KERALA HIGH COURT IN THE CA SE OF PAUL MATHEWS AND SONS V. CIT (2003) 263 ITR 101 108 (KE L) AS UNDER:- WE FIND THAT SUCH A POWER TO EXAMINE A PERSON ON O ATH IS SPECIFICALLY CONFERRED ON THE AUTHORIZED OFFICER ON LY UNDER SECTION 132(4) OF THE INCOME-TAX ACT IN THE COURSE OF ANY SEARCH OR SEIZURE. THUS THE INCOME-TAX ACT WHENEV ER IT THOUGHT FIT AND NECESSARY TO CONFER SUCH POWER TO E XAMINE A PERSON ON OATH THE SAME HAS BEEN EXPRESSLY PROVIDE D ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 4 WHEREAS SECTION 133A DOES NOT EMPOWER ANY INCOME-TA X OFFICER TO EXAMINE ANY PERSON ON OATH. THUS IN CONTRADISTINCTION TO THE POWER UNDER SECTION 133A SECTION 132(4) OF THE INCOME-TAX ENABLES THE AUTHORIZED OFF ICER TO EXAMINE A PERSON ON OATH AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMINATION CAN ALSO BE USED IN EVIDENCE UNDER THE INCOME-TAX ACT. ON THE OTHER HAN D WHATEVER STATEMENT IS RECORDED UNDER SECTION 133A O F THE INCOME-TAX ACT. IT IS NOT GIVEN ANY EVIDENTIARY VAL UE OBVIOUSLY FOR THE REASON THAT THE OFFICER IS NOT AU THORIZED TO ADMINISTER OATH AND TO TAKE ANY SWORN STATEMENT WHI CH ALONE HAS EVIDENTIARY VALUE AS CONTEMPLATED UNDER L AW. THEREFORE THERE IS MUCH FORCE IN THE ARGUMENT OF L EANED COUNSEL FOR THE APPELLANT THAT THE STATEMENT ELICIT ED DURING THE SURVEY OPERATION HAS NO EVIDENTIARY VALUE AND T HE INCOME-TAX OFFICER WAS WELL AWARE OF THIS. SIMILARLY THE HON'BLE MADRAS HIGH COURT IN THE CAS E OF CIT V. S. KHADER KHAN SON 2008) 300 ITR 157 (MAD) HAS REITE RATED THE SAME VIEW BY HOLDING THAT SECTION 133A DOES NOT EMP OWER ANY INCOME TAX AUTHORITY TO EXAMINE ANY PERSON ON OATH AND HENCE SUCH STATEMENT HAS NO EVIDENTIARY VALUE AND ANY ADM ISSION MADE IN SUCH STATEMENT CANNOT BY ITSELF BE MADE THE BA SIS FOR ADDITION. THE DEPARTMENT IS ALSO NOT OBLIVIOUS OF THE PRACTIC E BY WHICH THE REVENUE AUTHORITIES OBTAIN UNDUE CONFESSION FROM TH E ASSESSEE DURING SEARCH OR SURVEY PROCEEDINGS. SIMILARLY TH E CBDT VIDE CIRCULAR DATED 10 TH MARCH 2003 HAS CATEGORICALLY STATED THAT THE MATERIALS COLLECTED AND THE STATEMENT OBTAINED U/S. 133A OF THE ACT WOULD NOT AUTOMATICALLY BIND UPON THE ASSESSEE. AC CORDINGLY GOING BY THE VERDICT OF ABOVE HIGH COURTS AND THE P OSITION REAFFIRMED BY THE CBDT THROUGH ITS CIRCULAR IT BEC OMES CLEAR THAT NO ADDITION CAN BE MADE ON THE BASIS OF STATEMENT R ECORDED AT THE TIME OF SURVEY WITHOUT CO-RELATING THE UNDISCLOSED INCOME WITH THE MATERIAL GATHERED VIS--VIS THE STATEMENTS. 12. THE SECOND QUESTION BEFORE US IS WHETHER THE A SSESSEE- COMPANY IS ENTITLED TO CLAIM REFUND ON ITS OWN DECL ARED AMOUNT OF DISCLOSURE AND TAXES PAID THEREON. WE FIND THAT TH E CIT(A) REJECTED THE ABOVE APPEAL ON THE GROUND THAT THE AS SESSEE- COMPANY ITSELF HAS MADE DISCLOSURE IN THE RETURN OF INCOME AND PAID TAXES THEREON AND ACCORDINGLY IT WAS HELD THAT THE ASSESSEE WAS NOT ENTITLED TO RAISE THIS ISSUE. WE FIND THAT LD. DR AS WELL AS THE CIT(A) HAS RELIED ON THE DECISION OF HON'BLE APE X COURT IN THE ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 5 CASE OF SHELLY PRODUCTS AND ANOTHER (SUPRA). THE H ON'BLE APEX COURT HAS VERY CATEGORICALLY HELD THAT IN CASE IF T HE ASSESSEE HAS BY MISTAKE OR INADVERTENCE OR ON ACCOUNT OF IGNORAN CE INCLUDED IN HIS INCOME ANY AMOUNT WHICH IS EXEMPT FROM PAYMENT OF INCOME- TAX OR IS NOT INCOME WITHIN THE CONTEMPLATION OF L AW HE MAY LIKEWISE BRING THIS TO THE NOTICE OF THE AUTHORITY AND WHICH IF SATISFIED MAY GRANT RELIEF AND REFUND THE TAX PAID IN EXCESS IF ANY. THE HON'BLE APEX COURT AT PAGE 382 HELD AS UNDER:- WE CANNOT LOSE SIGHT OF THE FACT THAT THE FAILURE OR INABILITY OF THE REVENUE TO FRAME A FRESH ASSESSMENT SHOULD NOT PLACE THE ASSESSEE IN A MORE DISADVANTAGEOUS POSITION THA N IN WHAT HE WOULD HAVE BEEN IF A FRESH ASSESSMENT WAS M ADE. IN A CASE WHERE AN ASSESSEE CHOOSES TO DEPOSIT BY W AY OF ABUNDANT CAUTION ADVANCE TAX OR SELF-ASSESSMENT TAX WHICH IS IN EXCESS OF HIS LIABILITY ON THE BASIS OF THE R ETURN FURNISHED OR THERE IS ANY ARITHMETICAL ERROR OR INACCURACY I T IS OPEN TO HIM TO CLAIM REFUND OF THE EXCESS TAX PAID IN THE C OURSE OF THE ASSESSMENT PROCEEDING. HE CAN CERTAINLY MAKE S UCH A CLAIM ALSO BEFORE THE CONCERNED AUTHORITY CALCULATI NG THE REFUND. SIMILARLY IF HE HAS BY MISTAKE OR INADVERT ENCE OR ON ACCOUNT OF IGNORANCE INCLUDED IN HIS INCOME ANY AM OUNT WHICH IS EXEMPTED FROM PAYMENT OF INCOME-TAX OR IS NOT INCOME WITHIN THE CONTEMPLATION OF LAW HE MAY LIKE WISE BRING THIS TO THE NOTICE OF THE ASSESSING AUTHORITY WHICH IF SATISFIED MAY GRANT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS IF ANY. SUCH MATTERS CAN BE BROUGHT TO THE NOTICE OF THE CONCERNED AUTHORITY IN A CASE WHEN REFUND IS DU E AND PAYABLE AND THE AUTHORITY CONCERNED ON BEING SATI SFIED SHALL GRANT APPROPRIATE RELIEF. IN CASES GOVERNED B Y SECTION 240 OF THE ACT AN OBLIGATION IS CAST UPON THE REVE NUE TO REFUND THE AMOUNT TO THE ASSESSEE WITHOUT HIS HAVIN G TO MAKE ANY CLAIM IN THAT BEHALF. IN APPROPRIATE CASE S THEREFORE IT IS OPEN TO THE ASSESSEE TO BRING FACT S TO THE NOTICE OF THE CONCERNED AUTHORITY ON THE BASIS OF T HE RETURN FURNISHED WHICH MAY HAVE A BEARING ON THE QUANTUM OF THE REFUND SUCH AS THOSE THE ASSESSEE COULD HAVE URGED UNDER SECTION 237 OF THE ACT. THE CONCERNED AUTHORITY FO R THE LIMITED PURPOSE OF CALCULATING THE AMOUNT TO BE REF UNDED UNDER SECTION 240 OF THE ACT MAY TAKE ALL SUCH FAC TS INTO CONSIDERATION AND CALCULATE THE AMOUNT TO BE REFUND ED. SO VIEWED AN ASSESSEE WILL NOT BE PLACED IN A MORE ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 6 DISADVANTAGEOUS POSITION THAN WHAT HE WOULD HAVE BE EN HAD AN ASSESSMENT BEEN MADE IN ACCORDANCE WITH LAW. 13. FURTHER THE RELIANCE PLACED BY THE LD DR ON THE CASE LAW OF HON'BLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD . (SUPRA) WHEREIN THE COURT DISMISS THE APPEAL MAKING IT CLEA R THAT THE DECISION WAS RESTRICTED TO THE POWER OF THE ASSESSI NG AUTHORITY TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN A RE VISED RETURN AND DOES NOT IMPINGE ON THE POWERS OF APPELLATE TRIBUNA L U/S.254 OF THE ACT. THE APEX COURT HELD AS UNDER:- THE DECISION IN QUESTION IS THAT THE POWER OF THE TRIBUNAL UNDER SECTION 254 OF THE INCOME-TAX ACT 1961 IS T O ENTERTAIN OF THE FIRST TIME A POINT OF LAW PROVIDED THE FACT ON THE BASIS OF WHICH THE ISSUE OF LAW CAN BE RAISED BEFORE THE TRIBUNAL. THE DECISION DOES NOT IN ANY WAY RELATE TO THE OWNE R OF THE ASSESSING OFFICER TO ENTERTAIN A CLAIM FOR DEDUCTIO N OTHERWISE THAN BY FILING A REVISED RETURN. IN THE CIRCUMSTAN CES OF THE CASE WE DISMISS THE CIVIL APPEAL. HOWEVER WE MAKE IT CLEAR THAT THE ISSUE IN THIS CASE IS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND DOES NOT IMPINGE ON THE POW ER OF THE INCOME-TAX APPELLATE TRIBUNAL UNDER SECTION 254 OF THE INCOME-TAX ACT 1961. THERE SHALL BE NO ORDER AS TO COSTS. 14. ON THE OTHER HAND THE RELIANCE PLACED BY THE L D. COUNSEL FOR THE ASSESSEE SHRI HEMANI ON THE CASE LAW OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF BALMUKUND ACHARYA V. CIT IN ITA NO.217/2001 DATED 19-12-2008 WHEREIN THE COURT HAS CONSIDERED THE SIMILAR ISSUE ON THE GIVEN FACTS IN PARA-6 AS UNDER:- 6. THE CIT(A) REJECTED ABOVE APPEAL ON THE FIRST G ROUND HOLDING NO APPEAL LIES UNDER SECTION 246(1) (A) AGA INST AN INTIMATION SENT UNDER SECTION 143 (1) (A) OF THE AC T SINCE NO ADJUSTMENT HAD BEEN MADE BY THE ASSESSING AUTHORITY (A.O) AND THAT THE ASSESSEE HAD ON HIS OWN DECLARED THE S UBJECT AMOUNT AS CAPITAL GAINS AND PAID TAXES THEREON. IT WAS THUS HELD THAT THE APPELLANT WAS NOT ENTITLED TO R AISE THE ISSUE WHICH WAS NOT THE SUBJECT MATTER OF ADJUSTMEN T AND THAT THE SUBJECT QUESTION TO BE RAISED IN THE APPEA L DID NOT ARISE FROM THE ORDER PASSED BY THE AO. THE CIT(A) F URTHER HELD THAT ON THE PRETEXT OF CHALLENGING THE LEVY OF INTEREST UNDER SECTION 234 OF THE ACT THE OTHER ISSUES ON M ERITS ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 7 COULD NOT BE ALLOWED TO BE RAISED AT APPELLATE STAG E. HE THUS REFUSED TO ENTERTAIN THE GROUND OF TAXABILITY OF CAPITAL GAINS IN RESPECT OF AN ASSESSMENT COMPLETED UNDER S ECTION 143 (1)((A) OF THE ACT. IN THE RESULT THE APPEAL W AS DISMISSED. AND ON THESE FACTS THE HON'BLE BOMBAY HIGH COURT HE LD AS UNDER:- 25. HAVING HEARD BOTH PARTIES TWO POINTS OF VIEW ARISE BEFORE US WITH THE SUPPORT OF THE VARIOUS CASES DEC IDED BY THIS COURT AS WELL AS VARIOUS OTHER HIGH COURTS. TH E QUESTION AT ISSUE IS REGARDING RIGHT OF APPEAL. IT IS TRUE THAT THERE IS NO INHERENT RIGHT OR APPEAL TO ANY ASSESSEE AND IT HAS TO BE SPELT OUT FROM THE WORDS OF THE STATUTE IF ANY PR OVING FOR AN APPEAL. BUT IT IS AN EQUALLY WELL SETTLED PROPOSIT ION OF LAW THAT IF THERE IS A PROVISION CONFERRING A RIGHT OF APPEAL IT SHOULD BE READ IN A REASONABLE PRACTICAL AND LIBER AL MANNER. 26. HAVING SAID SO LET US TURN TO THE PROVISIONS H OLDING THE FIELD APPLICABLE TO THE RELEVANT ASSESSMENT YEAR (Q UOTED SUPRA). 27. SECTION 143(1) WITH EXPLANATION WOULD BE APPLIC ABLE TO THE CASE IN HAND SINCE THE ASSESSMENT YEAR IN QUES TION IS 1995-96. THE EXPLANATION WHICH WAS ON THE STATUTE UPTO 1.6.1999 TILL ITS OMISSION BY THE FINANCE ACT 1999 IF READ IN THE LIGHT OF CLAUSE 37 AND THE MEMO EXPLAINING THE PROVISION IN FINANCE BILL 1994 EXTRACTED HEREINABOVE WOULD UNEQUIVOCALLY GO TO SHOW THAT THE INTIMATION SENT T O THE ASSESSEE UNDER SUB SECTION (1) OR SUB SECTION 1(B) WAS DEEMED TO BE AN ORDER FOR THE PURPOSES OF SECTION 2 46 AND 265. SECTION 264 DEALS WITH APPEALABLE ORDERS. IF THIS BE SO THEN THE APPEAL AGAINST INTIMATION SENT RELATING TO THE ASSESSMENT FOR THE ASSESSMENT YEAR 1995-96 WAS VERY MUCH MAINTAINABLE IN VIEW OF THE EXPLANATION TILL I TS DELETION WITH EFFECT FROM 1.6.1999. THIS VIEW OF OURS IS IN CONSONANCE WITH THE VIEW TAKEN BY THE DIVISION BENCH OF THIS C OURT (PANAJI BENCH) IN THE CASE OF C.I.T. V. ANDERSON MA RINE AND SONS PVT. LTD. (2004) 266 ITR 694. WE DO NOT PROPOS E TO ADDRESS THE QUESTION RELATING TO THE EFFECT OF DELE TION OF THE EXPLANATION W.E.F. 1.6.1999 ON THE RIGHT OF APPEAL VIS--VIS INTIMATION UNDER SECTION 143 (1) OF THE ACT SINCE IT DOES NOT ARISE IN THE FACTS AND CIRCUMSTANCES OF THE CASE IN HAND. ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 8 28. IN VIEW OF THE ABOVE WE ARE OF THE CONSIDERED VIEW THAT SO LONG AS THE SUBJECT EXPLANATION WAS ON THE STATU TE BOOK THE APPEAL WAS VERY MUCH MAINTAINABLE AGAINST THE S UBJECT INTIMATION UNDER SECTION 143(1) OF THE ACT. IN THIS VIEW OF OURS IT IS NOT NECESSARY TO CONSIDER THE SUBMISSIO N ADVANCED BY MR CHATTERJEE LEADING TO THE INTERPRETA TION OF THE SECTION 246 OF THE ACT. JUDICIAL AUTHORITIES A RE CONSISTENT THAT WHERE THE LANGUAGE OF THE STATUTE IS PLAIN AND UNAMBIGUOUS AND ADMITS ONLY ONE INTERPRETATION THE RE DOES NOT ARISE A NEED FOR INTERPRETATION. 29. IN BHAVNAGAR UNIVERSITY VS. PALITANA SUGAR MILL (P) LTD. (AIR 2003 SC 511) THE SUPREME COURT REITERATED THE RULES RELATING TO THE INTERPRETATION OF STATUES AND HELD THAT RECOURSE TO CONSTRUCTION OR INTERPRETATION OF THE STATUTE AR ISES ONLY WHEN THERE IS AN AMBIGUITY OBSCURITY OR INCONSIST ENCY THEREIN OR OTHERWISE. THE BASIC PRINCIPLE OF CONST RUCTION OF STATUTES IS THAT IT SHOULD BE READ AS A WHOLE THEN CHAPTER BY CHAPTER SECTION BY SECTION AND WORD BY WORD. TRUE MEANING OF A PROVISION OF LAW HAS TO BE DETERMINED ON THE B ASIS OF THE CLEAR LANGUAGE WITH DUE REGARD TO THE SCHEME OF THE LAW. NO WORDS SHALL BE ADDED ALTERED OR MODIFIED UNLESS IT BECOMES NECESSARY TO DO SO TO PREVENT THE PROVISION BECOMIN G UNINTELLIGIBLE ABSURD UNREASONABLE UNWORKABLE OR TOTALLY IRRECONCILABLE WITH THE REST OF THE STATUTE. 30. IT IS A PRESUMPTION OF INTERPRETATION OF STATUT E THAT THE LEGISLATURE INSERTED EVERY WORD AND EXPRESSION IN T HE STATUTE FOR A DEFINITE PURPOSE AND WHILE INTERPRETING A ST ATUTE NO WORD CAN BE REJECTED AS BEING INAPPOSITE OR SURPLUS AGE (MITHILESH SINGH VS. UNION OF INDIA (AIR 2003 SC 11 45). WHERE THE LANGUAGE OF THE STATUTE IS CLEAR AND UNAM BIGUOUS NOTHING CAN BE READ INTO IT BY IMPLICATION AND THE INTENTION OF THE LEGISLATURE HAS TO BE GATHERED FROM THE LANGUAG E USED. (DAYAL SINGH VS. UNION OF INDIA) AIR 2003 SC 1140). 31. HAVING SAID SO WE MUST OBSERVE THAT THE APEX C OURT AND THE VARIOUS HIGH COURTS HAVE RULED THAT THE AUT HORITIES UNDER THE ACT ARE UNDER AN OBLIGATION TO ACT IN ACC ORDANCE WITH LAW. TAX CAN BE COLLECTED ONLY AS PROVIDED UND ER THE ACT. IF ANY ASSESSEE UNDER A MISTAKE MISCONCEPTIO NS OR ON NOT BEING PROPERLY INSTRUCTED IS OVER ASSESSED THE AUTHORITIES UNDER THE AC ARE REQUIRED TO ASSIST HIM AND ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 9 ENSURE THAT ONLY LEGITIMATE TAXES DUE ARE COLLECTED (SEE S.R. KOSTI V. CIT (GUJ) (2005) 276 ITR 165 C.P.A. YOOSU F V. I.T.O. (1970) 77 ITR 237 CIT V. BHARAT GENERAL REI NSURANCE CO. LTD. (1971) 81 ITR 303 CIT(A) VS. ARCHANA R. D HANWATE (1982) 136 ITR 355 (BOM). 32. IF PARTICULAR LEVY IS NOT PERMITTED UNDER THE A CT TAX CANNOT BE LEVIED APPLYING THE DOCTRINE OF ESTOPPEL. (SEE DY. COMMISSIONER OF SALES TAX VS. SREENI PRINTERS (1987 ) 67 SC 279. 33. THIS COURT IN THE CASE OF NIRMALA L. MEHTA V. A . BALASUBRAMANIAM C.I.T. (2004) 269 ITR 1 HAS HELD T HAT THERE CANNOT BE ANY ESTOPPEL AGAINST THE STATUTE. A RTICLE 265 OF THE CONSTITUTION OF INDIA IN UNMISTAKABLE TERMS PROVIDES THAT NO TAX SHALL BE LEVIED OR COLLECTED EXCEPT BY AUTHORITY OF LAW. ACQUIESCENCE CANNOT TAKE AWAY FROM A PARTY THE RELIEF THAT HE IS ENTITLED TO WHERE THE TAX IS LEVIED OR C OLLECTED WITHOUT AUTHORITY OF LAW. IN THE CASE ON HAND IT W AS OBLIGATORY ON THE PART OF THE ASSESSING OFFICER TO APPLY HIM MIND TO THE FACTS DISCLOSED IN THE RETURN AND ASSES S THE ASSESSEE KEEPING IN MIND THE LAW HOLDING THE FIELD. 34. ONE MORE ASPECT NEEDS TO BE TOUCHED WHILE DISPO SING OF THIS APPEAL. THE CIT(A) ENTERTAINED APPEAL IN PART AND REJECTED IN PART. IF THE APPEAL WAS NO MAINTAINABLE IT WAS NOT MAINTAINABLE AT ALL. IT CANNOT BE SAID THAT FOR A PARTICULAR GROUND AN APPEAL IS MAINTAINABLE AND FOR ANOTHER IT IS NOT. ONCE THE APPEAL IS FILED AND ENTERTAINED THEN ALL GROUNDS CAN BE RAISED BY THE APPELLANT REQUIRING CONSIDERAT ION. IF THE REVENUE WAS OF THE VIEW THAT AN APPEAL ITSELF WAS N OT MAINTAINABLE BEFORE CIT(A) IN THAT EVENT THE ORDE R OF THE CIT(A) ALLOWING APPEAL IN PART WAS BAD ORDER AND TH AT PART OF THE ORDER OUGHT TO HAVE BEEN CHALLENGED BY THE REVE NUE. THE REVENUE DID NOT CHALLENGE THE SAID ORDER BELIEV ING MAINTAINABILITY OF THE APPEAL. THE REVENUE AT THIS STAGE CANNOT BE ALLOWED TO CONTEND OTHERWISE. THEY CANNOT BE ALLOWED TO BLOW HOT AND COLD. THUS TAKING AN OVER ALL VIEW OF THE MATER AND FOR THE REASONS RECORDED WE ARE OF T HE CONSIDERED VIEW THAT THE APPEAL PREFERRED BY THE AS SESSEE WAS VERY MUCH MAINTAINABLE. ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 10 WE FURTHER FIND THAT THE HON'BLE APEX COURT WHILE D EALING WITH THE POWERS OF THE APPELLATE AUTHORITIES IN THE CASE OF JUTE CORPORATION OF INDIA LTD. V. CIT (1991) 187 ITR 688 (SC) OBSER VED AS UNDER:- AN APPELLANT AUTHORITY HAS ALL THE POWERS WHICH TH E ORIGINAL AUTHORITY MAY HAVE IN DECIDING THE QUESTION BEFORE IT SUBJECT TO THE RESTRICTIONS OR LIMITATIONS IF ANY PRESCRI BED BY THE STATUTORY PROVISIONS. IN THE ABSENCE OF ANY STATUTO RY PROVISION THE APPELLATE AUTHORITY IS VESTED WITH A LL THE PLENARY POWERS WHICH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. THERE IS NO GOOD REASON TO JUSTIFY CURT AILMENT OF THE POWER OF THE APPELLATE ASSISTANT COMMISSIONER I N ENTERTAINING AN ADDITIONAL GROUND RAISED BY THE ASS ESSEE IN SEEKING MODIFICATION OF THE ORDER OF ASSESSMENT PAS SED BY THE INCOME-TAX OFFICER. THIS COURT FURTHER OBSERVED THAT THERE MAY BE SEVERAL FACTORS JUSTIFYING THE RAISING OF A NEW PLEA IN AN APPEAL AND EACH CASE HAS TO BE CONSIDERED ON ITS OWN FACTS. THE APPELLATE ASSISTANT COMMISSIONER MUST BE SATISFIED THAT THE GROUND RAISED WAS BONA FIDE AND THAT THE SAME COULD NOT HAVE BEEN RAISED EARLIER FOR GOOD RE ASONS. THE APPELLATE ASSISTANT COMMISSIONER SHOULD EXERCIS E HIS DISCRETION IN PERMITTING OR NOT PERMITTING THE ASSE SSEE TO RAISE AN ADDITIONAL GROUND IN ACCORDANCE WITH LAW A ND REASON. THE SAME OBSERVATIONS WOULD APPLY TO APPEAL S BEFORE THE TRIBUNAL ALSO. 15. IN VIEW OF THE ABOVE FACTS AND CASE LAWS REFERR ED BY BOTH THE SIDES AND DISCUSSED ABOVE WE FIND THAT THE ASSESSE E-COMPANY WAS SUBJECTED TO SURVEY ACTION U/S.133A OF THE ACT ON 05-04-2006 AND DURING THE COURSE OF SURVEY ACTION THE DEPARTM ENT FOUND MANY DOCUMENTS BOOKS OF ACCOUNT RECORDS ON ELECTR ONIC MEDIA AND OTHER MATERIALS WHICH WERE IMPOUNDED. THERE W AS NOT A SINGLE PIECE OF INCRIMINATING PAPER OR DOCUMENT OR EVIDENCE OF ANY NATURE WERE FOUND WHICH SUGGESTS THAT UNACCOUNTED / UNDISCLOSED INCOME REMAINS HIDDEN OR NOT LIKELY TO BE DISCLOSED TO THE DEPARTMENT. THE ASSESSEE DISCLOSED ADDITIONAL INCO ME OF RS.7 CRORES WITH THE CONDITION THAT THE ASSESSEE DONT W ANT TO ENGAGE IN LONG DRAWN PROTECTED LITIGATION AND WANT TO BUY MEN TAL PEACE AND TO MAINTAIN CORDIAL RELATION WITH THE DEPARTMENT AN D ALSO TO COVER ANY LIKELY ERRORS OMISSIONS DISALLOWANCES CLAIMS ETC. EVEN THE AO COULD NOT FIND OUT ANY DISCREPANCY IN THE IMPOUN DED BOOKS OF ACCOUNT LOOSE PAPER DOCUMENTS REGISTERS RECORDS ON ELECTRONIC ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 11 MEDIA SUCH AS CD HARD DISK FLOPPY DISK ETC. THE A O HAS ACCEPTED THE VOLUNTARY DISCLOSURE WITHOUT POINTING OUT ANY MISTAKE IN THE IMPOUNDED DOCUMENTS. SPECIFICALLY THERE IS NO INCOME FOR WHICH THE ASSESSEE HAS MADE VOLUNTARY DISCLOSURE AN D THE DEPARTMENT ALSO COULD NOT POINT OUT ANY DISCREPANCY IN THE BOOKS OF ACCOUNT AND THE IMPOUNDED MATERIALS. THE VOLUNTA RY DISCLOSURE WAS MADE DURING THE COURSE OF POST-SURVEY PROCEEDIN GS WHEN THE ASSESSEE-COMPANY FILED LETTERS DATED 21-06-2006 AND 19-06-2006 EVEN THOUGH THE ASSESSEE WAS NOT SUPPLIED THE COPIE S OF IMPOUNDED MATERIALS TILL THE FINALIZATION OF ASSESS MENT. EVEN THE ASSESSEE VIDE LETTER DATED 12-12-2006 REQUIRED THE DEPARTMENT TO PROVIDE PHOTO COPIES OF IMPOUNDED MATERIALS BUT THE IMPOUNDED MATERIAL WAS NOT SUPPLIED AND DISCLOSURE WAS TAKEN FROM THE ASSESSEE-COMPANY. FROM THE ASSESSMENT ORDER IT IS V ERY CLEAR THAT THE VERY BASIS OF ACCEPTANCE OF DISCLOSURE WAS THAT THE ASSESSEE HAS MADE DISCLOSURE VIDE LETTER DATED 19 TH JUNE AND 21 ST JUNE 2006 AND PAID TAXES ACCORDINGLY. THERE IS NO DISCUSSION IN THE ASSESSMENT ORDER ABOUT THE INCRIMINATING MATERI ALS FOUND AND IMPOUNDED DURING THE COURSE OF SURVEY WHICH INDICA TE THAT THERE IS UNDISCLOSED OR UNACCOUNTED INCOME EMERGING OUT OF T HE SAME. IN THE ABSENCE OF THE SAME THE ASSESSEE HAS SPECIFICA LLY RETRACTED THE VOLUNTARY DISCLOSURE DURING THE COURSE OF ASSES SMENT PROCEEDINGS VIDE LETTER DATED 29 TH FEBRUARY AND 17 TH MARCH 2008. THE HON'BLE APEX COURT IN THE CASE OF SHELLY PRODUCT S (SUPRA) HAS VERY CATEGORICALLY RECORDED A FINDING THAT SIMILAR LY IF HE HAS BY MISTAKE OR INADVERTENCE OR ON ACCOUNT OF IGNORANCE INCLUDED IN HIS INCOME ANY AMOUNT WHICH IS EXEMPTED FROM PAYMENT OF INCOME- TAX OR IS NOT INCOME WITHIN THE CONTEMPLATION OF L AW HE MY LIKEWISE BRING THIS TO THE NOTICE OF THE ASSESSING AUTHORITY WHICH IF SATISFIED MAY GRANT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS IF ANY. SUCH MATTERS CAN BE BROUGHT TO THE NOTICE OF THE CONCERNED AUTHORITY IN A CASE WHEN REFUND IS DUE AND PAYABLE AND THE AUTHORITY CONCERNED ON BEING SATISFIED SHALL GRAN T APPROPRIATE RELIEF. IN THE PRESENT CASE ALSO THE ASSESSEE HAS SPECIFICALLY REQUIRED THE ASSESSING OFFICER AND THE CIT(A) DURI NG THE COURSE OF PROCEEDINGS BEFORE THE RESPECTIVE AUTHORITIES THAT THERE IS NO UNACCOUNTED OR UNDISCLOSED INCOME FOUND DURING THE COURSE OF SURVEY OR FROM THE IMPOUNDED MATERIAL AND THE SURRE NDER WAS SUBJECT TO THE CONDITION THAT THE DISCLOSURE IS MAD E TO COVER ANY ERRORS OMISSIONS DISCREPANCY THAT MAY BE FOUND IN ANY MANNER BASED ON ANY ENTRIES NOTES SCRIBBLING NOTINGS ET C. IN THE BOOKS OF ACCOUNT OTHER DOCUMENTS LOOSE PAPERS TRANSACT IONS ETC. FORMING PART OF IMPOUNDED MATERIALS OR IDENTIFIED F ROM ANY OTHER ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 12 SOURCE RECORDS ETC. IN THE HANDS OF THE COMPANY O R ANY OTHER ASSOCIATED CONCERN / PERSON ETC. THE ASSESSEE HAS V ERY CATEGORICALLY MADE THESE DISCLOSURES VIDE LETTER DA TED 19 TH JUNE 2006 STATING THAT THE ABOVE DISCLOSURE MAY KINDLY BE CONSIDERED ON LOGICAL AND JUDICIAL INTERPRETATION OF THE DEFIN ITION OF INCOME UNDER THE ACT AND AS PER THE NORMALLY ACCEPTED INT ERPRETED IMPLEMENTED AND UNDERSTOOD PRINCIPALS OF INCOME IN COMMERCIAL PARLANCE AS ALSO BASED ON THE JUDICIAL PRONOUNCEMEN TS OF VARIOUS AUTHORITIES ON THE SUBJECT-MATTER. IT MAY BE CLARIF IED THAT THE ABOVE REFERRED DISCLOSURE IS MADE WITH THE CONDITION THAT NO PENALTY PROCEEDINGS SHALL BE INITIATED. IN VIEW OF THE AB OVE FACTS AND CIRCUMSTANCES NOW IT IS TO BE DISCUSSED IS WHETHE R THE ADMISSION MADE BY THE ASSESSEE-COMPANY IN THE GIVEN FACTS AND CIRCUMSTANCES BINDS THE ASSESSEE OR NOT. WE FIND T HAT THE HON'BLE APEX COURT HAS OCCASIONED TO DEAL WITH THE ISSUE OF ADMISSION IN THE CASE OF CHIKKAM KOTESWARA RAO V. CHIKKAM SUBARA O AIR (1971) (SC) 1542 WHEREIN THE HON'BLE APEX COURT HAS STATED THAT AN ADMISSION HOWEVER BIND THE PERSON MAKING IT ON LY IN SO FAR AS FACTS ARE CONCERNED BUT AN ADMISSION IS NOT THE CON CLUSIVE PROOF OF THE MATTER ADMITTED THOUGH IT MAY IN CERTAIN CIRC UMSTANCES OPERATE AS ESTOPPEL. BUT IN SUCH CASES THERE SHOU LD BE NO DOUBT OR AMBIGUITY ABOUT THE ALLEGED ADMISSION. HOWEVER AN ADMISSION OR ACQUIESCENCE ON THE PART OF THE ASSESSEE CANNOT BE THE FOUNDATION OF ASSESSMENT WHERE THE INCOME IS RETUR NED UNDER AN ERRONEOUS IMPRESSION OR MISCONCEPTION OF LAW. IT I S ALWAYS OPEN TO THE ASSESSEE TO DEMONSTRATE AND SATISFIED THE AU THORITY CONCERN THAT A PARTICULAR INCOME WAS NOT TAXABLE IN HIS HAN D AND THAT IT WAS RETURNED UNDER ERRONEOUS IMPRESSION. IN THE PRESEN T CASE BEFORE US THE ASSESSEE HAS PROVED THAT THE DISCLOSURE MAD E WAS NEITHER THE UNDISCLOSED / UNACCOUNTED INCOME OF THE ASSESSE E-COMPANY AND EVEN NOT A SINGLE PIECE OF INCRIMINATING PAPER OR DOCUMENT OR EVIDENCE OF ANY NATURE WERE FOUND FROM THE IMPOUNDE D MATERIALS. EVEN THE AO HAS MADE ADDITION JUST ON THE BASIS STA TEMENT RECORDED DURING THE POST SURVEY PROCEEDINGS U/S.133 A OF THE ACT. THERE IS NO IOTA OF EVIDENCE WHICH SUGGEST THAT TH ERE IS UNACCOUNTED / UNDISCLOSED INCOME EMERGING OUT OF TH E INCRIMINATING DOCUMENTS IMPOUNDED DURING THE COURSE OF SURVEY. THERE IS NOTHING ON RECORD WHICH COULD CO-RELATE SU CH ADDITIONAL INCOME / DISCLOSURE OFFERED BY THE ASSESSEE-COMPANY DURING THE COURSE OF SURVEY WITH ANY OTHER DISCREPANCY. ON THE SE FACTS AND CIRCUMSTANCES WE ALLOW THE CLAIM OF THE ASSESSEE. ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 13 16. THE FACTS BEING EXACTLY IDENTICAL IN ITA NO.3762/AHD/2008 IN THE CASE OF SARJAN REALITIES LIMITED (EXCEPT THE Q UANTUM) TAKING A CONSISTENT VIEW WE ALLOW THE CLAIM OF THE ASSESSEE IN THIS APPEAL ALSO. ON THE OTHER HAND THE LD SR-DR FAIRLY CONCEDED THE POSITION THAT THIS ISSUE IS SQUARELY COVERED BY THE TRIBUNALS DECISIO N CITED (SUPRA) BUT THE REVENUE HAS PREFERRED APPEAL BEFORE HONBLE JURISDI CTIONAL HIGH COURT AND THE MATTER IS PENDING. 4. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE ORDERS OF THE LOWER AUTHORITIES THAT THIS ISSUE HAS ALREADY BEEN ADJUDI CATED EXACTLY ON SIMILAR FACTS IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2006-07 AND PART OF DISCLOSURE FALLS IN THIS ASSESSMENT YEAR. A S WE HAVE ALREADY ALLOWED THE ISSUE IN ASSESSMENT YEAR 2006-07 TAKIN G A CONSISTENT VIEW WE ALLOW THE CLAIM OF ASSESSEE AND THIS ISSUE OF AS SESSEES APPEAL IS ALLOWED. 5. REST OF THE GROUNDS ARE REGARDING INITIATION OF PENALTY PROCEEDINGS U/S.271(1) OF THE ACT AND CHARGING OF INTEREST U/S .234B OF THE ACT. THE GROUND REGARDING INITIATION OF PENALTY PROCEEDING I S PREMATURE HENCE DISMISSED. CHARGING OF INTEREST U/S.234B IS CONSEQU ENTIAL NEEDS NO ADJUDICATION. NOW COMING TO REVENUES APPEAL IN ITA NO.1629/AHD/2 009. ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 14 6. THE FIRST ISSUE IN THIS APPEAL OF REVENUE IS AGA INST THE ORDER OF CIT(A) IN DIRECTING ASSESSING OFFICER TO ALLOW DEDU CTION U/S 43B ON PF AND ESI. FOR THIS REVENUE HAS RAISED THE FOLLOWING GROUND NO.1 :- 1. THE LD. COMMISSIONER OF INCOME-TAX(A)-XIV AHME DABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSIN G OFFICER TO GIVE RELIEF OF RS.42 964/- UNDER SECTION 43B OF THE ACT IN RESPECT OF THE EMPLOYEES P.F. & ESI AS THE SAME FALLS SUNDER SECTI ON 36(1)(VA) OF THE ACT. 7. WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FA VOUR OF THE ASSESSEE AS THE PAYMENTS OF THESE CONTRIBUTION ARE MADE WITHIN THE DUE DATE OF FILLING OF RETURN OF INCOME AS NOTED BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER AND HONBLE DELHI HIGH COURT IN TH E CASE OF CIT V. P.M. ELECTRONICS LTD. (2008) 220 CTR 635 (DEL) WHEREIN THE ISSUE HAS BEEN DISCUSSED IN PARA-4 AS UNDER:- 4. ON 27 TH NOV. 1998 THE ASSESSEE HAD FILED A RETURN OF INCO ME DECLARING A LOSS OF RS.8 92 888. ON 11 TH MAY 1999 THE RETURN WAS PROCESSED UNDER S. 143(1)(A) OF THE ACT. THE CASE O F THE ASSESSEE WAS SELECTED FOR SCRUTINY. ACCORDINGLY A NOTICE DT . 27 TH SEPT. 1999 UNDER S. 143(2) OF THE ACT WAS ISSUED TO THE ASSESS EE. IN RESPONSE TO THE NOTICE AND ON EXAMINATION OF THE DETAILS SUB MITTED BY THE ASSESSEE WITH RESPECT TO PROVIDENT FUND PAYMENTS MA DE BOTH ON ACCOUNT OF EMPLOYERS AND EMPLOYEES SHARE REVEALED THAT PAYMENTS IN THE SUM OF RS.17 94 042 WERE LATE AS PE R THE PROVISIONS OF S. 36(1)(VA) R.W S. 2(24)(X) AND S. 4 3B. CONSEQUENTLY THE AO DISALLOWED THE DEDUCTION AND A DDED A SUM OF RS.17 94 042 TOWARDS EPF CONTRIBUTION. AND SUBSEQUENTLY DECIDE THIS ISSUE IN PARA-10 TO 14 OF HON'BLE DELHI HIGH COURT WHICH READ AS UNDER:- 10. IN VIEW OF THE ABOVE IT IS QUITE EVIDENT THAT THE SPECIAL LEAVE PETITION WAS DISMISSED BY A SPEAKING ORDER AND WHIL E DOING SO THE SUPREME COURT HAD NOTICED THE FACT THAT THE MATTER IN APPEAL BEFORE IT PERTAINS TO A PERIOD PRIOR TO THE AMENDME NT BROUGHT ABOUT IN S. 43B OF THE ACT. THE AFORESAID POSITION AS REG ARDS THE STATE OF THE LAW FOR A PERIOD PRIOR TO THE AMENDMENT TO S. 4 3B HAS BEEN NOTICED BY A DIVISION BENCH OF THIS COURT IN DHARMENDRA SHARMA ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 15 (SUPRA). APPLYING THE RATIO OF THE DECISION OF THE SUPREME COURT IN VINAY CEMENT (SUPRA) A DIVISION BENCH OF THIS COURT DISMISSED T HE APPEALS OF THE REVENUE. IN THE PASSING WE MAY ALSO NOTE THAT A DIVISION BENCH OF THE MADRAS HIGH COURT IN THE CASE OF CIT VS. NEXUS COMPUTER (P) LTD. BY A JUDGMENT DT. 19 TH AUG. 2008 PASSED IN TAX CASE (APPEAL) NO.1192/2008 [REPORTED AT (2008) 219 CTR (MAD.) 54 ED.] DISCUSSED THE IMPACT OF BO TH THE DISMISSAL OF THE SPECIAL LEAVE PETITION IN THE CASE OF GEORGE WILLIAMSON (ASSAM) LTD. (SUPRA) AND VINAY CEMENT (SUPRA) AS WELL AS A CONTRARY VIEW OF THE DIVISION BENCH OF ITS OWN COURT IN SYNERGY FINANCIAL EXCHANGE (SUPRA). THE DIVISION BENCH OF THE MADRAS HIGH COURT HAS EXPLAINED THE EFFECT OF THE D ISMISSAL OF A SPECIAL LEAVE PETITION BY A SPEAKING ORDER BY RELYI NG UPON THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF KUNHAYAMMED & ORS.VS. STATE OF KERALA & ANR. (2000) 162 CTR (SC) 97: 119 STC 505 AT P. 526 IN PARA 40 AND NOTED THE FOLLOWING OB SERVATIONS : IF THE ORDER REFUSING LEAVE TO APPEAL IS A SPEAKIN G ORDER I.E. GIVES REASONS FOR REFUSING THE GRANT OF LEAVE THEN THE ORDER HAS TWO IMPLICATIONS. FIRSTLY THE STATEMENT OF LAW CONTAINED IN THE ORDER IS A DECLARATION OF LAW BY THE SUPREME COURT WITHIN THE MEANING OF ART. 141 OF THE CONSTITUTION. SECONDLY OTHER THAN THE DECLARATION OF LAW WHATEVER IS STAT ED IN THE ORDER ARE THE FINDINGS RECORDED BY THE SUPREME COUR T WHICH WOULD BIND THE PARTIES THERETO AND ALSO THE COURT. TRIBUNAL OR AUTHORITY IN ANY PROCEEDINGS SUBSEQUENT THERETO BY WAY OF JUDICIAL DISCIPLINE THE SUPREME COURT BEING THE AP EX COURT OF THE COUNTRY. BUT THIS DOES NOT AMOUNT TO SAYING THAT THE ORDER OF THE COURT. TRIBUNAL OR AUTHORITY BELOW HAS STOOD MERGED IN THE ORDER OF THE SUPREME COURT REJECTING SPECIAL LEAVE PETITION OR THAT THE ORDER OF THE SUPREME COU RT IS THE ONLY ORDER BINDING AS RES JUDICATA IN SUBSEQUENT PROCEEDINGS BETWEEN THE PARTIES. 11. UPON NOTING THE OBSERVATIONS OF THE SUPREME COU RT IN KUNHAYAMMED & ORS. (SUPRA) THE DIVISION BENCH OF THE MADRAS HIGH COURT IN THE CASE OF NEXUS COMPUTER (P) LTD. (SUPRA) CAME TO THE CONCLUSION THAT THE VIEW TAKEN BY THE SUPREM E COURT IN VINAY CEMENT (SUPRA) WOULD BIND THE HIGH COURT AS IT WAS LAW DECLARED BY THE SUPREME COURT UNDER ART. 141 OF THE CONSTITUTION. 12. WE ARE IN RESPECTFUL AGREEMENT WITH THE REASONI NG OF THE MADRAS HIGH COURT IN NEXUS COMPUTER (P) LTD. (SUPRA). JUDICIAL DISCIPLINE REQUIRES US TO FOLLOW THE VIEW OF THE SU PREME COURT IN ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 16 VINAY CEMENT (SUPRA) AS ALSO THE VIEW OF THE DIVISION BENCH OF THIS COURT IN DHARMENDRA SHARMA (SUPRA). 13. IN THESE CIRCUMSTANCES WE RESPECTFULLY DISAGRE E WITH THE APPROACH ADOPTED BY A DIVISION BENCH OF THE BOMBAY HIGH COURT IN PAMWI TISSUES LTD. (SUPRA). 14. IN THESE CIRCUMSTANCES INDICATED ABOVE WE ARE OF THE OPINION THAT NO SUBSTANTIAL QUESTION OF LAW ARISES FOR OUR CONSIDERATION IN THE PRESENT APPEAL. THE APPEAL IS THUS DISMISSED. 8. WE FIND THAT THE HON'BLE DELHI HIGH COURT IN THE CASE OF P.M. ELECTRONICS LTD. (SUPRA) HAS DECIDED THIS ISSUE OF PAYMENT OF EMPLOY EES CONTRIBUTION TOWARDS PROVIDENT FUND AFTER CONSIDERI NG THE DECISION OF HON'BLE APEX COURT IN THE CASE OF VINAY CEMENT (SUPRA) AND ALSO DISTINGUISHED THE CASE LAW REFERRED BY THE LD. DR O F BOMBAY HIGH COURT IN PAMWI TISSUES LTD. (SUPRA) . ACCORDINGLY FOLLOWING DELHI HIGH COURT IN P.M. ELECTRONICS LTD. (SUPRA) WE ALLOW THE CLAIM OF THE ASSESSEE. ACCORDINGLY THIS ISSUE OF THE REVENUES APPEAL IS D ISMISSED. 9. THE NEXT ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) IN DELETING THE DISALLOWANCE OF RS.57.04 LAK H MADE BY ASSESSING OFFICER ON ACCOUNT OF LAND SURVEY EXPENDITURE. FOR THIS REVENUE HAS RAISED THE FOLLOWING GROUND NO.2 :- 2. THE LD. COMMISSIONER OF INCOME-TAX (A)-XIV AHM EDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWA NCE OF RS.57 04 000/- ON ACCOUNT OF LAND SURVEY EXPENDITUR E. 10. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE STAT ED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF ASSESSEE BY THE DECIS ION OF THE JURISDICTIONAL HIGH COURT IN TAX APPEAL NO.703 OF 2009 DATED 02-08-2009 IN THE CASE OF CIT V. SARJANA REALITIES LTD. I.E. IN ASSESSEES OWN CASE WHEREIN THE HONBLE JURISDICTIONAL HIGH COURT HAS H ELD THAT WHETHER ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 17 EXPENSES INCURRED ON SURVEY OF SUITABLE LAND USED A S STOCK-IN-TRADE FOR SALE TO CUSTOMERS INSTALLING WINDMILL IS REVENUE EX PENDITURE. HONBLE HIGH COURT CONSIDERED THE FACT THAT THE ASSESSEE DE ALS IN THE BUSINESS OF LAND RELATED TO WINDMILL AND PURCHASES LAND ON W HICH THE WINDFALL COULD BE INSTALLED. AFTER PURCHASING THE LAND THE ASSESSEE DEVELOPS THE LAND AND SELLS IT TO PERSONS WHO PURCHASES WINDMILL . THE ASSESSING OFFICER FRAMED ASSESSMENT U/S 143(3) OF THE ACT DIS ALLOWING AN AMOUNT OF RS.21 45 823/- TOWARDS CLAIM OF SURVEY EXPENSES TREATING IT AS CAPITAL IN NATURE. ACCORDING TO ASSESSING OFFICER SINCE ALL THE LANDS WHICH WERE SURVEYED WERE NOT PURCHASED THE EXPENDITURE WAS NO T RELEVANT TO PURCHASE OF LAND BUT IT WAS EXPENDITURE CARRIED OUT FOR SURVEY OF LANDS WHICH WERE NOT EVEN PURCHASED AND AS SUCH WAS CAPIT AL IN NATURE AND ACCORDINGLY DISALLOWED THE CLAIM OF EXPENSES OF RS. 21 45 823/-. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE CIT(A) AND CIT(A) DELETED BOTH THE DISALLOWANCES. AGGRIEVED REVENUE CAME IN APPEAL BEFORE TRIBUNAL AND TRIBUNAL DISMISSED THE APPEAL. NOW RE VENUE PREFERRED APPEAL BEFORE HONBLE JURISDICTIONAL HIGH COURT AND ARGUED THE LANDS WERE SURVEYED PRIOR TO PURCHASE. ALL THE LANDS THAT WERE SURVEYED WERE NOT PURCHASED AND SURVEY EXPENSES HAVING BEEN INCUR RED IN RELATION TO A STAGE PRIOR TO PURCHASE OF LAND WERE CLEARLY CAPITA L IN NATURE. HONBLE JURISDICTIONAL HIGH COURT HAS OBSERVED:- ++ THE COMMISSIONER (APPEALS) UPON APPRECIATION OF THE EVIDENCE ON RECORD FOUND THAT THE ASSESSEE WAS PURC HASING LAND WHICH WAS PART OF ITS STOCK IN TRADE; THAT ANY EXPE NDITURE INCURRED FOR PURCHASE OF SUCH LAND WAS A REVENUE EXPENDITURE IRRESPECTIVE OF THE FACT THAT THE LAND WHICH WAS FOUND SUITABLE WAS PURCHASED AND THAT WHICH WAS NOT FOUND SUITABLE WAS NOT PURCH ASED. ACCORDING TO COMMISSIONER (APPEALS) THE ULTIMATE S UITABILITY WOULD NOT CHANGE THE CHARACTER OF THE EXPENDITURE A ND THE SAME WOULD REMAIN REVENUE EXPENDITURE. THE TRIBUNAL IN T HE IMPUGNED ORDER HAS CONCURRED WITH THE FINDINGS RECORDED BY C OMMISSIONER (APPEALS) AND HAS FOUND THAT CONSIDERING THE NATURE OF THE ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 18 BUSINESS CARRIED ON BY THE ASSESSEE NAMELY PURCHAS ING OF LAND WHICH IS SUITABLE FOR WINDMILL THE CLAIM OF SURVEY EXPENSES PRIOR TO THE PURCHASE OF LAND WAS VERY MUCH ESSENTIAL FOR TH E PURPOSE OF BUSINESS AND WAS A REVENUE EXPENDITURE; ++ THE ASSESSEE IS IN THE BUSINESS OF PURCHASING LA ND SUITABLE FOR SETTING UP WINDMILLS. THE LANDS PURCHASED BY THE AS SESSEE FORM PART OF ITS STOCK IN TRADE. FOR THE PURPOSE OF DECI DING THE SUITABILITY OF THE LAND FOR THE PURPOSE OF WINDMILL THE SURVEY IS CONDUCTED. IN THE CIRCUMSTANCES CONSIDERING THE NATURE OF THE AS SESSEES BUSINESS CONDUCTING SURVEY OF THE LAND FOR THE PUR POSE OF DECIDING ITS SUITABILITY IS AN INTEGRAL PART OF ITS BUSINESS AND AS SUCH HAS RIGHTLY BEEN HELD TO BE A REVENUE EXPENDITURE. 11. WE FIND THAT LD. COUNSEL FOR THE ASSESSEE CONTE NDED THAT THE LAND PURCHASE WAS PART OF ITS STOCK-IN-TRADE AND WAS REF LECTED AS SUCH IN THE BOOKS OF ACCOUNT. THE EXPENDITURE INCURRED FOR SURV EY OF LAND TO DETERMINE THE SUITABILITY WAS THEREFORE THE REVENUE EXPENDITURE AS THE SAME RELATES TO PURCHASE OF LAND WHICH WAS PART OF THE STOCK-IN-TRADE. ACCORDINGLY WE ARE OF THE VIEW THAT ISSUE IS SQUAR ELY COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF HONBLE JURISDICTION AL HIGH COURT IN ASSESSEES OWN CASE (SUPRA). RESPECTFULLY FOLLOWING THE SAME WE UPHOLD THE ORDER OF CIT(A) AND THIS ISSUE OF REVENU ES APPEAL IS DISMISSED. 12. THE NEXT ISSUE IN THIS APPEAL OF REVENUE IS AGA INST THE ORDER OF CIT(A) IN DELETING THE ADDITION OF RS.34 09 400/- MADE BY ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE IN VALUATION OF L AND BY TREATING THE SAME AS UNEXPLAINED INVESTMENT. FOR THIS REVENUE HAS RA ISED THE FOLLOWING GROUND NO.3 :- 3. THE LD. COMMISSIONER OF INCOME-TAX(A)-XIV AHME DABAD HAS ERRED IN LAW AND ON FACTS IN DELETING RS.34 09 400/ - BEING THE DIFFERENCE IN VALUATION OF LAND TREATED AS UNEXPLA INED INVESTMENT. ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 19 13. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT DURING THE COURSE OF SURVEY ACTION AT THE ASSESSEES PREMISES ONE INTER OFFICE MEMO WAS FOUND WHEREIN ESTIMATED STAMP DUTY ON THE PURCHASE OF LAND WAS NARRATED WHICH WAS PURCHASED DURING THE YEAR U NDER CONSIDERATION. THE ASSESSEE PURCHASED THE LAND ADMEASURING 18.227 HECTARES @ RS.55 993/- PER HECTARE. THE REGISTRATION AUTHORITY FOR THE PURPOSES OF LEVYING STAMP DUTY ADOPTED THE VALUE OF RS.2 43 04 6/- PER HECTARE AND ASSESSING OFFICER THEREFORE REACHED TO A CONCLUSION THAT THE DIFFERENCE BETWEEN THE TWO FIGURES OF VALUATION VIZ. RS.1 87 0 53/- BE ADDED AS UNEXPLAINED INVESTMENT OF THE ASSESSEE IN THE PURCH ASE OF LAND AND ADDED RS.34 09 400/- U/S.69 OF THE ACT. AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A). THE CIT(A) DELETED THE ADDITI ON BY GIVING FOLLOWING FINDINGS IN PARA-4.3 OF HIS APPELLATE ORDER:- 4.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND TH E SUBMISSIONS. I AGREE WITH THE APPELLANTS VIEWS. AFTER THE INTRODU CTION OF SEC. 50C OF INCOME TAX ACT THE MARKET VALUE AS PER THE STAM P DUTY PAYABLE HAS TO BE TAKEN ONLY FOR CALCULATION OF CAPITAL GAI N ON SALE CONSIDERATION IN THE HANDS OF THE PURCHASER AND THE ADDITION CANNOT BE MADE U/S.69 OF THE ACT AS IT IS A DEEMIN G SECTION AND IT IS TO BE APPLIED ONLY FOR THE CAPITAL GAIN AND NOT FOR ANY OTHER PURPOSE. IN THE PAPERS FUND DURING THE SURVEY IT I S NOT WRITTEN THAT PRICE ACTUALLY PAID BY THE ASSESSEE IS THE MARKET V ALUE IN THE PAPER ONLY IT WAS WRITTEN THAT THIS MARKET VALUE IS ONLY FOR STAMP DUTY AND HENCE NO SUCH PAPER WAS FOUND SHOWING THAT THE ASSESSEE HAS PAID THE MARKET VALUE TO THE SELLER. T HEREFORE IT CANNOT BE ESTABLISHED BY THE AO THAT THE APPELLANT HAS ACTUALLY PAID THE EXCESS AMOUNT. BY FOLLOWING THE DECISION O F HON. GUJARAT HIGH COURT IN THE CASE OF MOHIT MARRKETING LTD. V. DCIT (TAX APPEAL NO.157 OF 2000) AS CITED BY THE APPELLANT A ND OTHER DECISIONS CITED ABOVE THE APPELLANT IS ALLOWED REL IEF ON THIS POINT AND THE ADDITION MADE ON THIS COUNT IS DELETED. AGGRIEVED REVENUE CAME IN APPEAL BEFORE THE TRIBUN AL. ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 20 14. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE ON THE GIVEN FACTS THAT THE PROVISIONS OF SECTION 50C OF THE ACT WILL APPLY TO SELLER ONLY AND NOT TO THE PURCHASER. HERE IN THE PRESENT CASE THE ASSES SEE IS A PURCHASER. THIS ISSUE HAS BEEN DECIDED BY THIS TRIBUNAL CONSIS TENTLY HAS HELD IN THE CASE OF M/S.JALARAM & CO. V. ITO WARD-2 NAVSARI IN ITA NO.3964/AHD/2008 VIDE ORDER DATED 24-07-2009 FOR ASSESSMENT YEAR 2005-06 WHEREIN THE TRIBUNAL HELD IN PARA-7 & 8 :- 7. IN THE PRESENT CASE SECTION 50C CREATES A LEGA L FICTION FOR TAXING CAPITAL GAINS IN THE HANDS OF THE SELLER AND IT CANNOT BE EXTENDED FOR TAXING THE DIFFERENCE BETWEEN APPARENT CONSIDERATION AND VALUATION DONE BY STAMP VALUATION AUTHORITIES A S UNDISCLOSED INVESTMENT U/S.69. IN FACT SECTION 69 ITSELF IS A LEGAL FICTION WHEREBY INVESTMENT INTO AN ASSET IS TREATED AS INCO ME IF IT IS NOT DISCLOSED IN THE REGULAR BOOKS OF ACCOUNT. NO FURTH ER LEGAL FICTION FROM ELSEWHERE IN THE STATUTE CAN BE BORROWED TO EX TEND THE FIELD OF SECTION 69. IT IS FOR THE LEGISLATURE TO INTRODU CE LEGAL FICTION TO OVERCOME DIFFICULTY IN TAXING CERTAIN RECEIPTS OR E XPENDITURE WHICH OTHERWISE WAS NOT POSSIBLE UNDER NORMAL PROVISIONS OF THE ACT. IT IS WITH THIS PURPOSE THAT WHEN IT WAS FOUND DIFFICULT TO PREVENT TAX EVASION BY UNDERSTATING APPARENT SALE CONSIDERATION AS COMPARED TO THE VALUATION MADE BY STAMP VALUATION AUTHORITIE S FOR THE PURPOSES OF LEVYING STAMP DUTY THEN IT WAS THOUGHT NECESSARY TO INTRODUCE SECTION 50C FOR SUBSTITUTING APPARENT SAL E CONSIDERATION BY VALUATION DONE BY STAMP VALUATION AUTHORITIES. T HIS FICTION CANNOT BE EXTENDED ANY FURTHER AND THEREFORE CANN OT BE INVOKED BY ASSESSING OFFICER TO TAX THE DIFFERENCE IN THE H ANDS OF THE PURCHASER. 8. HONBLE MADRAS HIGH COURT IN CGT V. R. DAMODARAN (2001) 247 ITR 698 HELD THAT STAMP VALUATION AUTHORITIES HAVE THEIR OWN METHOD OF EVALUATING THE PROPERTY. MERELY BECAUSE F OR THE PURPOSE OF STAMP DUTY PROPERTY IS VALUED AT HIGHER COST I T CANNOT BE SAID THAT ASSESSEE HAS MADE MORE PAYMENT THAN WHAT IS ST ATED IN THE SALE DEED. HONBLE ALLAHABAD HIGH COURT IN DINESH KUMAR MITTAL V. ITO (1992) 193 ITR 770 (ALL.) QUASHED THE ORDER OF AUT HORITIES BELOW WHEREIN HALF OF THE DIFFERENCE BETWEEN THE A MOUNT PAID AND THE VALUE FOR PURPOSES OF STAMP DUTY WAS ADDED AS I NCOME OF THE ASSESSEE BY THE ASSESSING OFFICER. IT IS HELD THAT THERE IS NO RULE OF ITA NO.1368 &1629/AHD/2008 A.Y 2005-06 M/S. SARJAN REALITIES LTD. V. ACIT CIR-8 ABD PAGE 21 LAW TO THE EFFECT THAT THE VALUE DETERMINED FOR THE PURPOSES OF STAMP DUTY IS THE ACTUAL CONSIDERATION PASSED BETWE EN THE PARTIES TO THE SALE. I.T.A.T SMC AHMEDABAD IN ITANO.4120/AHD/2008 IN NISHABEN AMINBHAI MITHANI DELETE4D THE ADDITION MADE U/S.69 ON ACCOUNT OF DIFFERENCE BETWEEN APPARENT CONSIDERATI ON AND VALUATION DONE BY STAMP VALUATION AUTHORITIES AFTER FOLLOWING VARIOUS AUTHORITIES AS REFERRED TO ABOVE. AS THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE WE UPHOLD THE ORDER OF CIT(A) ON THIS ISSUE AND REVENUES APPEAL IS DISMIS SED. 15. IN THE RESULT APPEAL OF ASSESSEE IS ALLOWED PARTLY AND THAT OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 21/01/2011 SD/- SD/- (N.S.SAINI) (MA HAVIR SINGH) ACCOUNTANT MEMBER JU DICIAL MEMBER AHMEDABAD DATED : 21/01/2011 *DKP COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-XIV AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD