The DCIT, Circle-5,, Ahmedabad v. Shri Hiren K.Patel, Ahmedabad

ITA 2959/AHD/2010 | 2004-2005
Pronouncement Date: 25-10-2013 | Result: Partly Allowed

Appeal Details

RSA Number 295920514 RSA 2010
Assessee PAN AGGPP2907H
Bench Ahmedabad
Appeal Number ITA 2959/AHD/2010
Duration Of Justice 2 year(s) 11 month(s) 26 day(s)
Appellant The DCIT, Circle-5,, Ahmedabad
Respondent Shri Hiren K.Patel, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 25-10-2013
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 25-10-2013
Date Of Final Hearing 24-09-2015
Next Hearing Date 24-09-2015
Assessment Year 2004-2005
Appeal Filed On 29-10-2010
Judgment Text
ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI D.K. TYAGI J.M. & SHRI ANIL CHATURVE DI A.M.) I.T. A. NO.2959 /AHD/2010 & CO.NO.333/AHD/2010 (ASSESSMENT YEAR: 2004-05) THE D.C.I.T. CIRCLE-5 AHMEDABAD ( APPELLANT) VS. SHRI HIREN K.PATEL 2 ND FLOOR C.U. SHAH CHAMBERS ASHRAM ROAD ASHRAM ROAD AHMEDABAD 380 009 (RESPONDENT) SHRI HIREN K.PATEL 2 ND FLOOR C.U. SHAH CHAMBERS ASHRAM ROAD ASHRAM ROAD AHMEDABAD 380 009 ( APPELLANT) VS. THE D.C.I.T. CIRCLE-5 AHMEDABAD (RESPONDENT) PAN: AGGPP2907 H APPELLANT BY : SHRI O.P. BATHEJA SR. D.R . RESPONDENT BY : SHRI S.N. SOPARKAR.A.R. ( )/ ORDER DATE OF HEARING : 18-09-20 13 DATE OF PRONOUNCEMENT : 25-10-2013 PER SHRI ANIL CHATURVEDI A.M. 1. THESE CROSS APPEALS ARE FILED BY THE REVENUE AND TH E ASSESSEE AGAINST THE ORDER OF CIT(A)-XI AHMEDABAD DATED 02.08.2010 FOR A.Y. 2004-05. ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 2 2. THE FACTS AS CULLED OUT FROM THE LOWER AUTHORITIES ARE AS UNDER: 3. ASSESSEE IS AN INDIVIDUAL WHO IS A DIRECTOR IN NIRM A LTD. AND OTHER COMPANIES OF NIRMA GROUP. HE FILED HIS RETURN OF IN COME FOR A.Y. 2004- 05 ON 21.10.2004 DECLARING TOTAL INCOME OF RS. 81 3 7 035/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 144 READ WITH SECTION 143(3) OF THE ACT VID E ORDER DATED 15.12.2006 AND THE TOTAL INCOME WAS DETERMINED AT R S. 1 00 51 190/-. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER ASSESS EE CARRIED THE MATTER BEFORE CIT(A). CIT(A) VIDE ORDER DATED 02.08.2010 G RANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER O F CIT(A) THE REVENUE IS NOW IN APPEAL BEFORE US AND THE ASSESSEE HAS FILED A CO. 4. THE GROUNDS RAISED BY THE REVENUE READS AS UNDER: 1. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING USE OF CASH SYSTEM INSTEAD OF MERCANTILE SYSTEM AS METHOD OF ACCOUNTING. 2. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF LON G TERM CAPITAL LOSSES OF RS. 34 03 192/-. 3. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE ON ACCOUNT OF ACCRUED INTEREST ON BONDS OF REC LTD. AMOUNTING TO RS. 49 17 994/-. 4. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN TREATING SHORT-TERM CAPITAL GAIN OF RS. 23 80 028/- ON TRANS FER OF DDES OF NIRMA LTD. AS LONG-TERM CAPITAL GAIN OF RS. 1 88 79 ; 125/- AS OFFERED IN THE RETURN OF INCOME . 5. THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW AND ON FACTS IN DELETION OF ADDITION OF RS. 4 52 667/- MADE UNDER THE HEAD I NCOME FROM HOUSE PROPERTY. 1 ST GROUND IS WITH RESPECT TO METHOD OF ACCOUNTING FOL LOWED BY THE ASSESSEE ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 3 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSESS ING OFFICER NOTICED THAT ASSESSEE HAD FOLLOWED CASH METHOD OF ACCOUNTIN G. HE ALSO NOTED THAT FOR A.Y. 02-03 & 03-04 IN THE BLOCK ASSESSMENT ORDER DATED 28.10.2003 THE ASSESSING OFFICER HAD CONSIDERED TH E MERCANTILE SYSTEM OF ACCOUNTING IN THE CASE OF ASSESSEE. HE ACCORDING LY FOLLOWED THE MERCANTILE SYSTEM. AGGRIEVED BY THE ORDER OF ASSESS ING OFFICER ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT FOL LOWING THE DECISION OF AHMEDABAD TRIBUNAL IN THE CASE OF RAKESHBHAI PAT EL AND THE DECISION OF HIS PREDECESSOR IN ASSESSEES CASE FOR A.Y. 2005 -06 HELD THAT THE METHOD OF ACCOUNTING TO BE ON CASH BASIS. HE ACCORD INGLY ALLOWED THE APPEAL OF THE ASSESSEE. 6. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER THE RE VENUE IS NOW IN APPEAL BEFORE US. 7. BEFORE US AT THE OUTSET THE LD. A.R. SUBMITTED TH AT IN ASSESSEES OWN CASE FOR A.Y. 02-03 IN ITA NO. 1252/AHD/2006 AND FO R A.Y. 03-04 IN ITA NO. 1082/AHD/2010 VIDE ORDER DATED 15.02.2013 O N IDENTICAL FACTS THE ISSUE HAS BEEN DECIDED IN ASSESSEES FAVOUR. HE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID ORDER. HE THEREFORE SUBMI TTED THAT THE ISSUE BE DECIDED IN FAVOUR OF ASSESSEE. THE LD. D.R. ON THE OTHER HAND RELIED ON THE ORDER OF ASSESSING OFFICER. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT FOR A.Y. 03-04 IN ITA NO. 1082/AHD/201 0 ON IDENTICAL ISSUE BEFORE THE CO-ORDINATE BENCH OF TRIBUNAL THE TRIBUNAL DECIDED THE ISSUE IN FAVOUR OF ASSESSEE BY HOLDING AS UNDER:- ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 4 4.2.2 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PER USED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. ADMITTEDLY THIS ISSUE WAS RAISED BY THE ASSESSEE BEFORE LD. CIT(A) THAT THE ASSESSEE IS FOLLOWING CASH METHOD OF ACCOUNTING AND THE A.O. IS NOT CORRECT IN HOLDING T HAT THE ASSESSEE IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNT. THIS ISSUE WAS NOT D ECIDED BY LD. CIT(A). UNDER THESE FACTS GENERALLY WE RESTORE BACK THE ISSUE TO THE FILE OF LD. CIT(A) FOR A DECISION ON SUCH UNDECIDED GROUND BUT CONSIDERING THESE FACTS T HAT THE RELEVANT MATERIAL IS AVAILABLE ON RECORD BEFORE US BEING THE AUDITED BAL ANCE SHEET AND P & L ACCOUNT AS WELL AS COMPUTATION OF INCOME FILED BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME AND THE ORDER PASSED BY THE A.O. IS NOT A SPEAKING ORDER REGARDING METHOD OF ACCOUNTING BEING FOLLOWED BY THE ASSESSEE WE FEEL IT PROPER THAT WE SHOULD DECIDE THIS ASPECT OF THE MATTER IN THE FACTS OF THE PRESE NT CASE. WE THEREFORE PROCEED TO DECIDE THIS ISSUE AFTER EXAMINING THE COMPUTATION O F INCOME AND THE AUDITED ACCOUNTS MADE AVAILABLE BEFORE US. IN THE COMPUTATION OF INC OME IT IS SPECIFICALLY STATED BY THE ASSESSEE AS PER NOTE THAT ASSESSEE IS FOLLOWING CAS H METHOD OF ACCOUNTING. THIS WAS SUBMITTED BY THE ASSESSEE BEFORE THE A.O. AS PER TH E SUBMISSIONS DATED 08.11.2005 ALSO AS HAS BEEN REPRODUCED BY THE A.O. IN PARA 5.1 ON PAGE 3 OF THE ASSESSMENT ORDER. THEREAFTER IN PARA 5.13 OF THE ASSESSMENT O RDER IT IS STATED BY THE A.O. THAT THE METHOD OF ACCOUNTING IN RESPECT OF DDES HAS BEE N DEFINED BY CBDT U/S 145(2) OF THE INCOME TAX ACT 1961 AND AS PER THE PROVIS IONS OF SECTION 145(2) READ WITH CIRCULAR NO.2 OF 2002 THE ASSESSEE IS NOT ALLOWED TO RETURN THE INCOME FROM DDBS/NCD ON CASH BASIS. HENCE AS PER THIS FINDI NG OF THE A.O. IN PARA 5.13 OF THE ASSESSMENT ORDER IT IS SEEN THAT THIS IS NOT A CAS E OF THE A.O. THAT ASSESSEE IS NOT FOLLOWING CASH SYSTEM OF ACCOUNTING AND IS FOLLOWIN G MERCANTILE METHOD OF ACCOUNT BUT THE CASE OF THE A.O. IS THIS THAT IN RESPECT OF DECLARING INCOME FROM DDBS/NCD THERE IS A RESTRICTION ON THE ASSESSEE AS PER CIRCU LAR NO.2 OF 2002 AND SECTION 145(2) OF THE INCOME TAX ACT 1961 THAT THE SAME CANNOT BE DECLARED ON CASH BASIS. WE ARE NOT SATISFIED WITH THIS CONTENTION OF THE A.O. BEC AUSE AS PER THE PROVISIONS OF SECITON 145(2) OF THE ACT THE CENTRAL GOVERNMENT MAY NOTIF Y IN THE OFFICIAL GAZETTE FROM TIME TO TIME THE ACCOUNTING STANDARDS TO BE FOLLOWED B Y ANY CLASS OF THE ASSESSEES AND IN RESPECT OF ANY CLASS OF THE INCOME BUT THIS BOARD'S CIRCULAR NO.2 OF 2002 DOES NOT AMOUNT TO ANY ACCOUNTING STANDARD NOTIFIED BY THE C ENTRAL GOVERNMENT IN THE OFFICIAL GAZETTE AND THEREFORE THERE IS NO MERIT IN THIS CO NTENTION OF THE A.O. THAT AS PER THE PROVISIONS OF SECTION 145(2) OF THE INCOME TAX ACT 1961 READ WITH CIRCULAR NO.2 OF 2002 THE ASSESSEE CANNOT RETURN THE INCOME FROM DD BS/NCD ON CASH BASIS. FROM THE AUDITED ACCOUNTS AND COMPUTATION OF INCOME FILE D BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME COPIES OF WHICH ARE MADE AVAILABL E TO US ALSO WE FIND THAT THE METHOD OF ACCOUNTING BEING FOLLOWED BY THE ASSESSEE IS CASH AND NOT MERCANTILE. AS PER SUB-SECTION (1) OF SECTION 145 THE ASSESSEE CA N FOLLOW EITHER CASH OR MERCANTILE SYSTEM OF ACCOUNTING REGULARLY IN RESPECT OF DETERM INATION OF INCOME CHARGEABLE UNDER THE HEAD 'PROFITS & GAINS OF THE BUSINESS AND PROFESSION' OR 'INCOME FROM OTHER SOURCES' AND THEREFORE THE ASSESSEE CAN VERY MUCH FOLLOW CASH METHOD OF ACCOUNTING FOR THE PURPOSE OF DECLARING INCOME IN RESPECT OF D DBS/NCD IF THE ASSESSEE IS REGULARLY FOLLOWING CASH METHOD OF ACCOUNTING. NO B OARD'S CIRCULAR CAN OVERRIDE THE PROVISIONS OF THE ACT AND SINCE THE BOARD'S CIRCULA R IS NOT AN ACCOUNTING STANDARD NOTIFIED BY THE CENTRAL GOVERNMENT IN THE OFFICIAL GAZETTE AS REQUIRED U/S 145(2) OF ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 5 THE INCOME TAX ACT 1961 TO MAKE OUT AN EXCEPTION I N RESPECT OF SECTION 145(1) WE DO NOT FIND ANY MERIT IN THIS CONTENTION OF THE A.O. T HAT EVEN IF THE ASSESSEE IS FOLLOWING CASH METHOD OF ACCOUNTING THE ASSESSEE IS BOUND TO FOLLOW MERCANTILE METHOD OF ACCOUNTING FOR THE PURPOSE OF DECLARING INCOME FROM DDBS/NCD. HENCE WE HOLD THAT THE ASSESSEE IS FOLLOWING CASH METHOD OF ACCOU NTING IN THE FACTS OF THE PRESENT CASE IN THE PRESENT YEAR AND ACCORDINGLY GROUND NO .5 OF THE ASSESSEE IS ALLOWED. SINCE THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESS EE AND WE HAVE HELD THAT THE ASSESSEE IS FOLLOWING CASH METHOD OF ACCOUNTING RE MAINING GROUNDS NO.2 3 & 4 ARE ALSO TO BE ALLOWED BECAUSE THE INCOME OF THE ASSESS EE CANNOT BE ASSESSED ON THE BASIS OF HYBRID METHOD OF ACCOUNTING BY FOLLOWING MERCANT ILE METHOD FOR ASSESSING INCOME IN RESPECT OF DDBS/NCD AND THE REMAINING INCOME ON THE BASIS OF CASH METHOD OF ACCOUNTING. HENCE GROUNDS NO.2 3 & 4 ARE ALSO ALL OWED 9. SINCE UNDISPUTEDLY THE FACTS OF THE CASE IN THE YEA R UNDER APPEAL ARE IDENTICAL TO THAT OF A.Y. 03-04 AND SINCE NO CONTRA RY MATERIAL HAS BEEN BROUGHT BEFORE US WE RESPECTFULLY FOLLOWING THE OR DER OF CO-ORDINATE BENCH DISMISS THIS GROUND OF REVENUE. 2 ND GROUND IS WITH RESPECT TO DISALLOWANCE OF LONG TER M CAPITAL LOSS OF RS. 34 03 192/-. 10. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSESS ING OFFICER NOTICED THAT ASSESSEE HAS INCURRED LONG TERM CAPITAL LOSS O F RS. 34 03 192/- WHICH HAD BEEN ADJUSTED AGAINST THE LONG TERM CAPITAL GAI NS. HE ALSO NOTICED THAT THE LOSS WAS ON ACCOUNT OF SALE OF MAKARBA LAN D. THE ASSESSEE WAS ASKED TO SUBMIT THE DETAILS OF THE LAND SOLD. IN T HE ABSENCE OF ANY DETAILS. ASSESSING OFFICER WAS OF THE VIEW THAT THE BUYER AN D SELLER OF MAKARBA LAND ARE BROTHERS AND THE ENTIRE SET OF TRANSACTION WAS NOTHING BUT ARTIFICIAL CONSTRUCT IN THE GARB OF LEGITIMATE TRAN SACTION WITH AN ULTIMATE OBJECTIVE OF REDUCING THE TAX INCIDENCE. HE ACCORDI NGLY DISALLOWED THE CAPITAL LOSS ON SALE OF MAKARBA LAND. ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 6 11. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER ASSESS EE CARRIED THE MATTER BEFORE CIT(A). CIT(A) DECIDED THE ISSUE IN FAVOUR O F THE ASSESSEE BY HOLDING AS UNDER:- 4.1 IT WAS CONTENDED BY THE LD. A.R. THE SIMILAR IS SUE WAS DECIDED IN FAVOUR OF APPELLANTS BROTHER SHRI RAKESHBHAI K PATEL VIDE PA RA 5.1.2 OF MY PREDECESSORS ORDER IN APPEAL NO. CIT(A)-XI/262/06-07 DATED 13.03 .2008 FOR A.Y. 2004-05. IT IS SEEN THAT ONE PIECE OF THE LAND WAS SOLD BY SHRI RA KESHBHAI PATEL. FACTS REMAINING THE SAME FOLLOWING MY PREDECESSORS ORDER MENTIONE D ABOVE THE DISALLOWANCE OF LONG TERM CAPITAL LOSS IS DELETED. THIS GROUND OF APPEAL IS ALLOWED. 12. AGGRIEVED BY THE ORDER OF CIT(A) REVENUE IS NOW IN APPEAL BEFORE US. 13. BEFORE US THE LEARNED D.R. SUBMITTED THAT THE ASSE SSEE DID NOT FURNISH ANY DETAILS OF CAPITAL LOSS BEFORE THE A.O. AND THE REFORE THE ASSESSING OFFICER WAS FULLY JUSTIFIED IN DISALLOWING THE LOSS . HE THUS SUPPORTED THE ORDER OF A.O. THE LD. A.R. ON THE OTHER HAND SUBMIT TED THAT ON IDENTICAL FACTS IN THE CASE OF RAKESHBHAI PATEL THE BROTHER OF THE ASSESSEE THE HON. TRIBUNAL VIDE ORDER DATED 3.10.2008 FOR A.Y. 0 4-05 HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE. HE THEREFORE SUBMITTE D THAT FOLLOWING THE AFORESAID ORDER OF TRIBUNAL IN THE ASSESSEES BROTH ERS CASE THE ISSUE BE DECIDED IN FAVOUR OF ASSESSEE. 14. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. FROM THE ASSESSMENT ORDER PASSED BY THE ASSESSING O FFICER WE FIND THAT THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF SA LE OF LAND BUT SINCE THERE WAS NO COMPLIANCE BY THE ASSESSEE A.O. DISAL LOWED THE CLAIM OF LOSS. WE FURTHER FIND THAT CIT(A) HAS DECIDED THE ISSUE BY FOLLOWING THE ORDER OF CIT(A) IN RAKESHBHAI PATELS CASE. WE FURT HER FIND THAT THE ORDER OF CIT(A) IS VERY CRYPTIC. WE FIND THAT THE C O-ORDINATE BENCH OF ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 7 TRIBUNAL IN ITA NO. 1084/AHD/2008 IN THE CASE OF RA KESHBHAI PATEL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLD ING AS UNDER:- 13 GROUND NO.6 IN THE REVENUE'S APPEAL RELATES TO DELE TION OF THE ADDITION AMOUNTING TO RS.54 76 171/- ON ACCOUNT OF DISALLOWA NCE OF LONG TERM CAPITAL GAIN. THE FACTS RELATING TO THIS GROUND ARE THAT THE AO NOTED THAT THE ASSESSEE HAS EARNED LONG TERM CAPITAL GAIN OF RS. 1 33 09 111/- ARRIVED AT AFTER EXCLUDING THE LONG T ERM CAPITAL LOSS OF RS.54 76 171/- INCURRED ON THE SALE OF MAKARBA LAND . THE AO ASKED THE ASSESSEE TO SUBMIT THE FOLLOWING DETAILS.: (I) DETAILED LOCATION OF THE LAND ON WHICH LT CL HAS BEEN COMPUTED. (II) NAME ADDRESS AND PAN OF THE PARTY FROM WHOM T HE LAND HAD BEEN ACQUIRED IN 1993-94 ALONG WITH COPY OF PURCHASE LAN D. (III) NAME ADDRESS AND PAN OF THE PARTY TO WHOM TH E SAID LAND HAD BEEN SOLD ALONG WITH COPY OF SALE DEED. (IV) MARKET VALUE OF THE SAID LAND AS ON 31.03.2003 ALONG WITH COPY OF THE VALUATION REPORT. (V) YOU ARE ALSO REQUIRED TO REFLECT THE ABOVE TRAN SACTION IN YOUR BANK STATEMENT AND THE USE TO WHICH THE SAME CONSIDERATI ON HAS BEEN PUT TO. SIMILAR DETAILS WERE ASKED FOR DURING THE COURSE O F ASSESSMENT PROCEEDINGS OF SHRI H K PATEL ASSESSEE'S BROTHER R ELATING TO THE SIMILAR ISSUE. THE AO ALSO NOTED THAT THE COPY OF THE SALE DEED WAS FILED AND THE LAND WAS SOLD BY THE ASSESSEE TO SHRI H K PATEL AND IN BOTH THE TRANSACTIONS THE PARTY OF THE ONE SIDE AND THE PART Y OF THE SECOND SIDE HAD BEEN EITHER THE ASSESSEE OR THE ASSESSEE'S BROTHER SHRI H K PATEL. ALL THE COMPLETE DETAILS TO VERIFY THE CAPITAL LOSS WERE NO T FILED. THE AO THEREFORE ON THE BASIS OF THESE FACTS THAT THE BUYER AND THE SELLER OF MAKARBA LAND ARE BROTHERS TOOK AN INFERENCE AGAINST THE ASSESSE E AND DISALLOWED THE LONG TERM CAPITAL LOSS. BEFORE THE CIT(A) THE ASSE SSEE SUBMITTED THE FOLLOWING DETAILS: 'LAND PLOT IS SITUATED AT S.G. ROAD MAKARBA VILLAG E TALUKA CITY DIST. AHMEDABAD. THE LAND WAS PURCHASED FROM FOL LOWING SIX PERSONS. 1 SHRI SHANTILAL BUDARBHAI 2 SHRI RAJESHBAHI SHANTILAL 3 SHRI VASANTBHAI SHANTILAL 4 SHRI GAUTAMBHAI SHANTILAL 5 SHRI VINODBHAI SHANTILAL 6 SHRI MAHASUKHBHAI SHANTILAL THE ADDRESS OF THE PERSONS WERE MENTIONED IN THE PU RCHASE DEEDS WHICH ARE ENCLOSED HEREWITH. LAND PLOT WAS SOLD TO MY BRO THER SHRI HIRENBHAI K PATEL. HIS ADDRESS IS NIRMA HOUSE ASHRAM ROAD AHM EDABAD. THE COPY OF THE SALE DEED IS ENCLOSED ANNEXURE-EI. HE IS ASS ESSED TO INCOME-TAX AT PAN: AGGPP2907H BY ACIT CIRCLE 5 AHMEDABAD WHERE I AM ASSESSED. MARKET VALUE OF THE SAID LAND PLOT AS ON 31-3-03 IS @ RS.9 00 000 IS BASED ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 8 ON THE JANTRI ISSUED BY STATE GOVERNMENT. COPY ENCL OSED - MARKED ANNEXURE-F. THE CONSIDERATION IS PASSED BY ACCOUNT PAYEE CHEQUE.' THE CIT(A) DELETED THE DISALLOWANCE BY OBSERVING AS UNDER: '5.1.2IT MAY BE SEEN THAT THE LONG TERM CAPITAL LOS S HAS BEEN WORKED OUT TAKING THE SALE PRICE AS PER THE JANTRI VALUATION W HICH IS THE RECOGNIZED VALUATION OF THE STATE GOVT. THEREFORE THE LONG TE RM CAPITAL LOSS AS SUCH WORKED OUT CANNOT BE DISPUTED UNLESS IT IS ESTABLIS HED THAT THE APPELLANT HAD RECEIVED AMOUNT HIGHER THAN SALE PRICE DISCLOSE D. THEREFORE IN VIEW OF THE FACT THAT NO EVIDENCE IS AVAILABLE THAT THE APPELLANT HAD RECEIVED HIGHER VALUE THAN WHAT IS DISCLOSED THE CONTENTION OF THE APPELLANT ARE ACCEPTED. ACCORDINGLY THIS GROUND OF APPEAL IS ALL OWED. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBM ISSIONS ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. IT IS NOT DENIE D THAT THE LAND WAS SOLD AS PER JANTRI PRICE AND THE SALE CONSIDERATION RECE IVED BY THE ASSESSEE WAS NOT BELOW THE JANTRI VALUATION. EVEN NO MATERIAL WA S BROUGHT ON RECORD WHICH MAY PROVE THAT THE ASSESSEE HAS RECEIVED THE CONSIDERATION MUCH MORE THAN THE SALE PRICE DISCLOSED. MERELY THE LAND HAS BEEN SOLD DOES NOT MEAN THAT THE SALE IS NOT GENUINE WHEN THE SALE CON SIDERATION IS NOT LESS THAN THE JANTRI VALUATION. UNDER THESE FACTS AND CI RCUMSTANCE IN OUR OPINION THE CIT(A) IS JUSTIFIED IN DELETING THE AD DITION. THUS THIS GROUND STANDS DISMISSED. 15. BEFORE US IT HAS BEEN SUBMITTED THAT THE FACTS OF THE CASE ARE IDENTICAL OF THAT OF CASE OF SHRI RAKESHBHAI PATEL. HOWEVER WE FIND THAT IN CASE OF SHRI RAKESHBHAI PATEL THE ASSESSEE HAD SUBMITTED T HAT THE LAND WAS SOLD BY HIM TO HIS BROTHER SHRI HIRENBHAI PATEL I.E. THE PRESENT ASSESSEE. HOWEVER IN THE PRESENT CASE THE ASSESSING OFFICER HAS NOTED THAT THE CAPITAL GAIN IS ON ACCOUNT OF SALE OF LAND BY ASSES SEE. THUS IT CAN BE SEEN THAT IN CASE OF SHRI RAKESH PATEL (THE BROTHER OF A SSESSEE) THE SALE OF LAND WAS TO BROTHER (I.E. SHRI HIREN PATEL THE PRE SENT ASSESSEE) BUT IN THE PRESENT CASE THE SALE OF LAND BY ASSESSEE WAS STAT ED TO BE TO HIS BROTHER SHRI RAKESH PATEL. WE THEREFORE FIND THAT THE FACTS OF THE CASE ARE NOT IDENTICAL TO THAT OF SHRI RAKESHBHAI PATEL. FURTHE R NO DETAILS ARE AVAILABLE ON RECORD WITH RESPECT TO THE LAND LIKE DATE OF PUR CHASE ITS PURCHASE PRICE ITS SALE PRICE AND OTHER RELEVANT DETAILS REQUIRED FOR THE PURPOSE OF ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 9 COMPUTATION OF CAPITAL GAIN. FURTHER THERE IS NO FI NDING ON THESE ASPECTS EITHER BY A.O. OR CIT(A) . WE THEREFORE FEEL THAT I N THE INTEREST OF JUSTICE THE MATTER NEEDS BE DECIDED AFRESH BY THE A.O. WE T HEREFORE REMIT THIS ISSUE TO THE FILE OF A.O. TO DECIDE THE ISSUE AFRES H IN ACCORDANCE WITH LAW AND AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESS EE. THE ASSESSEE IS ALSO DIRECTED TO SUBMIT THE NECESSARY DETAILS CALLE D FOR BY THE A.O. PROMPTLY AND WITHIN 15 DAYS FROM THE DATE OF ORDER AND WITHOUT WAITING FOR NOTICE FROM THE A.O. THE A.O. SHALL THEREAFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE DECIDE THE ISSUE IN ACCORDANCE WITH LAW. IN CASE NO INSUFFICIENT DETAILS ARE SUBMITTED BY THE ASSESSEE THE A.O. WILL BE FREE TO PROCEED ON THE BASIS OF MATERI AL AVAILABLE WITH HIM. THUS THIS GROUND OF REVENUE IS ALLOWED FOR STATISTI CAL PURPOSES. GROUND NO. 3 IS WITH RESPECT TO INTEREST ON BOND S OF REC LIMITED AMOUNTING TO RS. 49 17 994/-. 16. FROM THE DETAILS FILED BY THE ASSESSEE A.O. NOTICE D THAT ASSESSEE HAD INVESTED IN BONDS OF RURAL ELECTRIFICATION CORPORAT ION IN FINANCIAL YEAR 02-03 THE ISSUE PRICE OF WHICH WAS 4 20 20 000/-. HE ALSO NOTICED THAT THE MATURITY DATE OF THE BONDS WAS 13.09.2007 AND T HE MATURITY VALUE WAS RS. 5 78 82 550/-. THE A.O. WAS OF THE VIEW THAT T HE ASSESSEE SHOULD HAVE CONSIDERED THE INTEREST ACCRUED ON THE BONDS A S INCOME IRRESPECTIVE OF THE METHOD OF ACCOUNTING FOLLOWED BY IT. ASSESS EE INTERALIA SUBMITTED THAT SINCE HE WAS FOLLOWING CASH SYSTEM AND THEREFO RE WAS NOT LIABLE TO BE TAXED IN RESPECT OF INTEREST NOT RECEIVED BY HIM . A.O. DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND THEREAFTER HE WO RKED OUT THE INCOME AS PER CIRCULAR NO. 2 OF CBDT DATED 15.02.2002 AND COMPUTED THE ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 10 INTEREST INCOME AT RS. 49 17 994/-. AGGRIEVED BY T HE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) D ELETED THE ADDITION BY HOLDING AS UNDER:- 5. THE FOURTH GROUND OF APPEAL IS REGARDING THE AD DITION MADE BY THE A.O. OF RS. 49 17 994/- BEING THE ACCRUED INTEREST ON R.E.C BO NDS. AS SEEN FROM THE ASSESSMENT ORDER SIMILAR ISSUE AROSE IN THE A.Y. 2003-04 AND T HE A.O. FOLLOWED THE ASSESSMENT ORDER FOR THE SAID ASSESSMENT YEAR. DURING THE COUR SE OF HEARING IT WAS CONTENDED BY THE LD. A.R. THAT THIS ISSUE WAS DECIDED IN FAVOUR OF THE APPELLANT FOR THE A.Y. 2005- 06. VIDE PARA 3.2 OF THE SAID ORDER DATED 3/2/2009 IN APPEAL NO. CIT(A)XI/620/JAN- 08/07-08 THE ADDITION MADE ON ACCOUNT OF ACCRUED IN TEREST WAS DELETED BY MY PREDECESSOR. WHILE DELETING THE ADDITION MY PREDECE SSOR RELIED ON THE TRIBUNAL'S ORDER DATED 02/11/07 IN ITA NO. 1850/AHD/2007 IN TH E CASE OF KISAN DISCRETIONARY FAMILY TRUST FOR A.Y. 2003-04. SIMILARLY IN THE CAS E OF APPELLANT'S BROTHER SHRI RAKESHBHAI K. PATEL FOR A.Y. 2004-05 VIDE PARA 6.1 .3 OF THE ORDER DTD. 13/03/2008 IN APPEAL NO. CIT(A)-XI/262/06-07 MY PREDECESSOR ALLO WED IDENTICAL GROUND OF APPEAL. FURTHER IN VIEW OF THE FINDING THAT THE METHOD OF ACCOUNTING FOLLOWED BY THE APPELLANT IS CASH METHOD NO ADDITION IS WARRANTED ON THE BASIS OF ACCRUAL OF INTEREST. ACCORDINGLY THE ADDITION IS DELETED. THIS GROUND O F APPEAL IS ALLOWED. 17. AGGRIEVED BY THE ORDER OF CIT(A) REVENUE IS NOW IN APPEAL BEFORE US. 18. BEFORE US THE LD. D.R. RELIED ON THE ORDER OF A.O. ON THE OTHER HAND THE LD. A.R. SUBMITTED THAT ON IDENTICAL ISSUE THE MATT ER HAS BEEN DECIDED BY THE TRIBUNAL IN ASSESSEES FAVOUR IN A.Y. 03-04. H E PLACED ON RECORD THE COPY OF THE ORDER CONSOLIDATED ORDER IN ITA NO. 108 2/A/2010 ( A.Y. 03- 04) & ITA NO. 3133/A/2003(FOR A.Y. 03-04) DATED 21. 06.2013. HE THEREFORE SUBMITTED THAT SINCE THE FACTS OF THE CAS E UNDER APPEAL ARE IDENTICAL TO THAT OF EARLIER YEAR SIMILAR VIEW BE TAKEN AND THE ISSUE BE DECIDED IN ASSESSEES FAVOUR. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN ITA NO. 3133/A/2007 THE ASSESSEE H AS RAISED THE GROUND WITH RESPECT TO BONDS OF REC LIMITED. THE ISSUE WAS DECIDED IN FAVOUR ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 11 OF THE ASSESSEE BY THE CO-ORDINATE BENCH OF TRIBUNA L VIDE ORDER DATED 21.06.2013 BY HOLDING AS UNDER:- 4.2.1 IT WAS SUBMITTED BY THE LD. A.R. THAT GROUND NO.5 SHOULD BE DECIDED FIRST AS PER WHICH IT IS THE CLAIM OF THE ASSESSEE THAT THE ASS ESSEE IS FOLLOWING CASH SYSTEM OF ACCOUNTING. HE SUBMITTED THAT ALTHOUGH THIS ISSUE I S NOT DECIDED BY LD. CIT(A) AND THEREFORE THIS MAY BE AN ARGUMENT THAT THIS ISSUE SHOULD GO BACK TO THE FILE OF LD. CIT(A) FOR A DECISION BUT SINCE ALL OTHER ISSUES AS PER GROUNDS NO.2 3 & 4 ARE DEPENDING ON THE DECISION ON THIS ASPECT AND THE RE LEVANT FACTS BEINGS THE AUDITED BALANCE SHEET AND P & L ACCOUNT ETC. ARE BEING FURN ISHED THIS ISSUE MAY BE DECIDED HERE ITSELF. HE ALSO SUBMITTED THAT AS PER THE COMP UTATION OF THE TOTAL INCOME FILED BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME WHICH IS MADE AVAILABLE BEFORE THE BENCH IT IS SUBMITTED BY THE ASSESSEE ON PAGE 2 OF THE COMPUTATION THAT THE ASSESSEE IS FOLLOWING CASH METHOD OF ACCOUNTING. HE ALSO SUB MITTED THAT AS PER THE BALANCE SHEET AND P & L ACCOUNT OF THE ASSESSEE MADE AVAIL ABLE BEFORE THE BENCH IT CANNOT BE SEEN THAT THE ASSESSEE IS MAINTAINING ITS ACCOUN TS ON CASH BASIS AND NOT ON MERCANTILE BASIS. HE SUBMITTED THAT MERELY BECAUS E IN ASSESSMENT YEAR 2001-02 NO APPEAL WAS FILED BY THE ASSESSEE AGAINST THE ASSESS MENT ORDER AS PER WHICH THE A.O. HELD THAT THE ASSESSEE IS FOLLOWING MERCANTILE SYST EM OF ACCOUNTING IT CANNOT BE ACCEPTED THAT THE ASSESSEE IS IN FACT FOLLOWING MER CANTILE SYSTEM OF ACCOUNTING IN THAT YEAR I.E. ASSESSMENT YEAR 2001-02 BECAUSE IN SPITE OF HOLDING THAT THE ASSESSEE IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING THE RETU RN OF INCOME WAS ACCEPTED BY THE A.O. AND THEREFORE NO APPEAL WAS FILED IN THAT YE AR. HE ALSO SUBMITTED THAT IN ASSESSMENT YEAR 1999-2000 AND 2000-01 ALSO THE RET URN OF INCOME WAS ACCEPTED BY THE A.O. BY WAY OF INTIMATION U/S 143(1). REGARDING THE ASSESSMENT FOR THE ASSESSMENT YEARS 1995-96 TO 1998-99 IT WAS SUBMITT ED THAT IN THOSE YEARS THE ASSESSMENT WAS MADE BY THE A.O. BY HOLDING THA T THE ASSESSEE IS FOLLOWING MERCANTILE METHOD OF ACCOUNTING BUT SINCE THERE WAS NO ADDITION AND THE RETURN OF INCOME WAS ACCEPTED NO APPEAL WAS FILED. HE SUBM ITTED THAT UNDER THESE FACTS THIS ISSUE SHOULD BE DECIDED ON THE BASI S OF COMPUTATION OF INCOME AUDITED P & L ACCOUNT AND BALANCE SHEET OF THE PRESENT YEAR. HE ALSO SUBMITTED THAT IF IT IS HELD AND DECIDED THAT THE ASSESSEE IS FOLLOWING CAS H SYSTEM OF ACCOUNTING THEN GROUNDS 2 3 & 4 ARE TO BE ALLOWED IN FAVOUR OF THE ASSESSEE BECAUSE THESE ADDITIONS WERE MADE BY THE A.O. ON THE BASIS THAT THE ASSESSE E IS FOLLOWING MERCANTILE METHOD OF ACCOUNTING AND IF IT IS ACCEPTED THAT THE ASSESS EE IS FOLLOWING CASH METHOD OF ACCOUNTING THEN THESE ADDITIONS CANNOT BE MADE. L D. D.R. SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 4.2.2 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PER USED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. ADMITTEDLY THIS ISSUE WAS RAISED BY THE ASSESSEE BEFORE LD. CIT(A) THAT THE ASSESSEE IS FOLLOWING CASH METHOD OF ACCOUNTING AND THE A.O. IS NOT CORRECT IN HOLDING T HAT THE ASSESSEE IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNT. THIS ISSUE WAS NOT D ECIDED BY LD. CIT(A). UNDER THESE FACTS GENERALLY WE RESTORE BACK THE ISSUE TO THE FILE OF LD. CIT(A) FOR A DECISION ON SUCH UNDECIDED GROUND BUT CONSIDERING THESE FACTS T HAT THE RELEVANT MATERIAL IS AVAILABLE ON RECORD BEFORE US BEING THE AUDITED BAL ANCE SHEET AND P & L ACCOUNT AS WELL AS COMPUTATION OF INCOME FILED BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 12 AND THE ORDER PASSED BY THE A.O. IS NOT A SPEAKING ORDER REGARDING METHOD OF ACCOUNTING BEING FOLLOWED BY THE ASSESSEE WE FEEL IT PROPER THAT WE SHOULD DECIDE THIS ASPECT OF THE MATTER IN THE FACTS OF THE PRESE NT CASE. WE THEREFORE PROCEED TO DECIDE THIS ISSUE AFTER EXAMINING THE COMPUTATION O F INCOME AND THE AUDITED ACCOUNTS MADE AVAILABLE BEFORE US. IN THE COMPUTATION OF INC OME IT IS SPECIFICALLY STATED BY THE ASSESSEE AS PER NOTE THAT ASSESSEE IS FOLLOWING CAS H METHOD OF ACCOUNTING. THIS WAS SUBMITTED BY THE ASSESSEE BEFORE THE A.O. AS PER TH E SUBMISSIONS DATED 08.11.2005 ALSO AS HAS BEEN REPRODUCED BY THE A.O. IN PARA 5.1 ON PAGE 3 OF THE ASSESSMENT ORDER. THEREAFTER IN PARA 5.13 OF THE ASSESSMENT O RDER IT IS STATED BY THE A.O. THAT THE METHOD OF ACCOUNTING IN RESPECT OF DDES HAS BEE N DEFINED BY CBDT U/S 145(2) OF THE INCOME TAX ACT 1961 AND AS PER THE PROVIS IONS OF SECTION 145(2) READ WITH CIRCULAR NO.2 OF 2002 THE ASSESSEE IS NOT ALLOWED TO RETURN THE INCOME FROM DDBS/NCD ON CASH BASIS. HENCE AS PER THIS FINDING OF THE A.O. IN PARA 5.13 OF THE ASSESSMENT ORDER IT IS SEEN THAT THIS IS NOT A CAS E OF THE A.O. THAT ASSESSEE IS NOT FOLLOWING CASH SYSTEM OF ACCOUNTING AND IS FOLLOWIN G MERCANTILE METHOD OF ACCOUNT BUT THE CASE OF THE A.O. IS THIS THAT IN RESPECT OF DECLARING INCOME FROM DDBS/NCD THERE IS A RESTRICTION ON THE ASSESSEE AS PER CIRCU LAR NO.2 OF 2002 AND SECTION 145(2) OF THE INCOME TAX ACT 1961 THAT THE SAME CANNOT BE DECLARED ON CASH BASIS. WE ARE NOT SATISFIED WITH THIS CONTENTION OF THE A.O. BEC AUSE AS PER THE PROVISIONS OF SECITON 145(2) OF THE ACT THE CENTRAL GOVERNMENT MAY NOTIF Y IN THE OFFICIAL GAZETTE FROM TIME TO TIME THE ACCOUNTING STANDARDS TO BE FOLLOWED BY ANY CLASS OF THE ASSESSEES AND IN RESPECT OF ANY CLASS OF THE INCOME BUT THIS BOARD'S CIRCULAR NO.2 OF 2002 DOES NOT AMOUNT TO ANY ACCOUNTING STANDARD NOTIFIED BY THE C ENTRAL GOVERNMENT IN THE OFFICIAL GAZETTE AND THEREFORE THERE IS NO MERIT IN THIS CO NTENTION OF THE A.O. THAT AS PER THE PROVISIONS OF SECTION 145(2) OF THE INCOME TAX ACT 1961 READ WITH CIRCULAR NO.2 OF 2002 THE ASSESSEE CANNOT RETURN THE INCOME FROM DD BS/NCD ON CASH BASIS. FROM THE AUDITED ACCOUNTS AND COMPUTATION OF INCOME FILE D BY THE ASSESSEE ALONG WITH THE RETURN OF INCOME COPIES OF WHICH ARE MADE AVAILABL E TO US ALSO WE FIND THAT THE METHOD OF ACCOUNTING BEING FOLLOWED BY THE ASSESSEE IS CASH AND NOT MERCANTILE. AS PER SUB-SECTION (1) OF SECTION 145 THE ASSESSEE CA N FOLLOW EITHER CASH OR MERCANTILE SYSTEM OF ACCOUNTING REGULARLY IN RESPECT OF DETERM INATION OF INCOME CHARGEABLE UNDER THE HEAD 'PROFITS & GAINS OF THE BUSINESS AND PROFESSION' OR 'INCOME FROM OTHER SOURCES' AND THEREFORE THE ASSESSEE CAN VERY MUCH FOLLOW CASH METHOD OF ACCOUNTING FOR THE PURPOSE OF DECLARING INCOME IN RESPECT OF D DBS/NCD IF THE ASSESSEE IS REGULARLY FOLLOWING CASH METHOD OF ACCOUNTING. NO BOARD'S CIRCULAR CAN OVERRIDE THE PROVISIONS OF THE ACT AND SINCE THE BOARD'S CIRCULA R IS NOT AN ACCOUNTING STANDARD NOTIFIED BY THE CENTRAL GOVERNMENT IN THE OFFICIAL GAZETTE AS REQUIRED U/S 145(2) OF THE INCOME TAX ACT 1961 TO MAKE OUT AN EXCEPTION I N RESPECT OF SECTION 145(1) WE DO NOT FIND ANY MERIT IN THIS CONTENTION OF THE A.O. T HAT EVEN IF THE ASSESSEE IS FOLLOWING CASH METHOD OF ACCOUNTING THE ASSESSEE IS BOUND TO FOLLOW MERCANTILE METHOD OF ACCOUNTING FOR THE PURPOSE OF DECLARING INCOME FROM DDBS/NCD. HENCE WE HOLD THAT THE ASSESSEE IS FOLLOWING CASH METHOD OF ACCOU NTING \ IN THE FACTS OF THE PRESENT CASE IN THE PRESENT YEAR AND ACCORDINGLY GROUND NO .5 OF THE ASSESSEE IS ALLOWED. SINCE THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESS EE AND WE HAVE HELD THAT THE ASSESSEE IS FOLLOWING CASH METHOD OF ACCOUNTING RE MAINING GROUNDS NO.2 3 & 4 ARE ALSO TO BE ALLOWED BECAUSE THE INCOME OF THE ASSESS EE CANNOT BE ASSESSED ON THE BASIS ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 13 OF HYBRID METHOD OF ACCOUNTING BY FOLLOWING MERCANT ILE METHOD FOR ASSESSING INCOME IN RESPECT OF DDBS/NCD AND THE REMAINING INCOME ON THE BASIS OF CASH METHOD OF ACCOUNTING. HENCE GROUNDS NO.2 3 & 4 ARE ALLOWED. 20. BEFORE US THE REVENUE COULD NOT CONTROVERT THE SUB MISSIONS OF LD. A.R. NOR HAS BROUGHT ANY CONTRARY MATERIAL ON RECORD. FU RTHER THE FACTS OF THE CASE IN THE YEAR UNDER APPEAL ARE ALSO IDENTICAL TO THAT OF EARLIER YEARS. IN VIEW OF THE AFORESAID FACTS RESPECTFULLY FOLLOWING THE ORDER OF CO- ORDINATE BENCH WE DECIDE THE ISSUE IN FAVOUR OF AS SESSEE. THUS THIS GROUND OF REVENUE IS DISMISSED. GROUND NO. 4 IS WITH RESPECT TO CONSIDERING THE PROFIT ON TRANSFER OF DDBS OF NIRMA LTD. 21. ASSESSING OFFICER NOTICED THAT ASSESSEE HAD SOLD IN VESTMENTS IN 1250 DDBS OF NIRMA LTD FOR A SALE CONSIDERATION OF RS. 1 4 38 79 125/- AND HAD OFFERED THE LONG TERM CAPITAL GAIN OF RS. 1 88 79 125/-. ASSESSING OFFICER NOTED THAT IN ASSESSEES OWN CASE FOR A.Y. 03-04 DISCOUNTED VALUE OF THE DDBS AS ON 31.03.2003 WAS COMPUTED AT RS. 14 19 94 972/- AND THE MATURITY VALUE OF THESE DDBS WAS RS. 14 43 75 000/-. HE ACCORDINGLY CONSIDERED THE DIFFERENCE OF RS. 23 80 028/-(14 43 75 000/- - 14 19 94 972/-) AS SHORT TERM CAPITAL GAINS. AGGRIE VED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CI T(A) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER :- 6.2 IT WAS CONTENDED BY THE A.R. THAT IN THE CASE OF APPELLANT'S BROTHER SHRI RAKESHBHAI PATEL FOR THE A.Y. 2004-05 ON SIMILAR F ACTS MY PREDECESSOR VIDE PARA 7.1.3 HELD THAT THE LONG TERM CAPITAL GAINS WERE RI GHTLY OFFERED AND DELETED THE ADDITION MADE ON ACCOUNT OF SHORT TERM CAPITAL GAIN S. WHILE COMING TO THE SAID FINDINGS RELIANCE WAS PLACED BY HIM ON THE TRIBUNAL 'S ORDER DATED 02/11/2007 IN THE CASE OF KISAN DISCRETIONARY FAMILY TRUST IN ITA NO. 1850/AHD/2007 FOR A.Y. 2003-04. THE CONTENTION OF THE LD. A.R. IS FOUND TO BE CORRE CT AND THEREFORE FOLLOWING THE SAID ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 14 ORDERS THE A.O IS DIRECTED TO ACCEPT THE LONG TERM CAPITAL GAIN RETURNED BY THE APPELLANT OF RS. 1 88 79 125/-DELETE THE SHORT TERM CAPITAL GAIN ASSESSED OF RS. 23 80 028/-. 22. AGGRIEVED BY THE ORDER OF CIT(A) REVENUE IS NOW IN APPEAL BEFORE US. 23. BEFORE US THE LEARNED D.R. RELIED ON THE ORDER OF A.O. ON THE OTHER HAND THE LEARNED A.R. SUBMITTED THAT ON IDENTICAL FACTS IN THE ASSESSEES OWN CASE FOR A.Y. 02-03 THE ISSUE HAS BEEN DECIDED IN FAVOUR OF ASSESSEE BY HON. TRIBUNAL. HE THEREFORE SUBMITTED THAT SIMILAR VIEW BE CONSIDERED IN THE PRESENT CASE ALSO. 24. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN THE ASSESSEES OWN CASE FOR A.Y. 02 -03 IN ITA NO. 1252/AHD/2006 ON IDENTICAL ISSUE THE ISSUE HAS BEE N DECIDED IN FAVOUR OF ASSESSEE BY THE CO-ORDINATE BENCH OF TRIBUNAL BY HO LDING AS UNDER:- 8. TREATING OF LTCD OF RS. 3 01 35 849/- ON SALES OF 1 391 DDB OF NIRMA LIMITED AS STCG AND NOT-ALLOWING OF DEDUCTION U/S 54EC ON LTCG OF RS. 3.01 CRORES (GROUND NOS. 5 AND 6): THE FACTS RELATING TO THESE GROUNDS ARE THAT THE AS SESSEE SOLD THE BALANCE 1391 DDBS ON 19.03.2002 AT A CONSIDERATION OF RS. 6 98 9 5 209/- @ 1 12 139/- PER BOND. THE LEARNED A.O. CONSIDERED THE INCOME GENER ATED FROM THE SALE OF 155 DDBS SERIES- A OF NIRMA LIMITED WHICH WERE PURCHASED FROM NIRAV DISCRETIONARY FAMILY TRUST AS STCG WHICH COMES TO R S. 1 89 31 545/-. FURTHER IT WAS OBSERVED BY THE AO THAT OUT OF THES E 155 DDBS THE ASSESSEE PURCHASED 87 DDBS ON 5.11.2000 AT RS.89 L7 500/- AN D THE BALANCE OF 68 DDBS WERE PURCHASED ON 28.2.2001 AT RS.72 42 000/- . THEREFORE THE AO COMPUTED THE STCG ON THE SAME AT RS.27 72 045/-. FURTHER IT WAS NOTICED THAT THE ASSESSEE SOLD 1236 DDBS AT RS. 15 09 63 804/- WHICH WERE PURCHASED AT RS. 12 36 00 000/-. THE AO HAD THEREFORE COMPUTED STCG ON THE SAME AT RS.2 73 63 804/- THEREBY AGGREG ATING THE COMPUTATION OF STCG TO RS.3 01 35 849/-. SINCE THE INCOME OF ASS ESSEE EARNED FROM SALE OF AFORESAID DDBS BY THE AO AGAINST THE CLAIM OF LTCG THE AO DISALLOWED THE ASSESSEE'S CLAIM OF DEDUCTION U/S 54EC OF THE ACT A MOUNTING TO RS. 4 20 20 200/- (REFER: PARAS 5.9 TO 5.11 OF THE ASST. ORDER). 8.1 AGGRIEVED THE ASSESSEE TOOK UP THE ISSUES WITH THE CIT (A) FOR RELIEF. THE LEARNED CIT (A) HOWEVER UPHELD THE STAND OF THE A O BY OBSERVING THUS: ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 15 '(ON PAGE 11) THE APPELLANT'S SUBMISSIONS HAVE BEEN CONSIDERED BY ME.THIS ISSUE IS COVERED BY THE APPELLATE ORDER NO. CIT(A)- I/CC1(1)35/05-06 MATED 2.3.06 IN THE CASE OF KARSANBHAI PATEL(HUF) FOR AY 2002-03 AND HARSIDDH SPECIFIC FAMILY TRUST NO. CIT (A)-I/CC-1(1)46/05-06 DATED 7/3/06 FOR AY 2002-03. HENCE CONSIDERING THE ABOVE FACT GROUND OF APPEAL NO.4 (B) IS DISMISSED. GROUND OF APPEAL NO.4(C) RELATES TO DENIAL OF DEDUC TION UNDER SECTION54EQ BY THE AO. SINCE AO'S ACTION REGARDING TAX TREATMEN T OF THE TRANSACTION IN DDBS HAS BEEN UPHELD THERE IS NO QUESTION OF ALLOW ING DEDUCTION UNDER SECTION 54EC. HENCE GROUNDOF'APPEALNO.4(C) IS DISM ISSED.' 8.2 BEFORE US THE LEARNED AR SUBMITTED IN SHORT THAT THESE ISSUES ARE COVERED IN FAVOUR OF THE ASSESSEE BY THE FINDINGS OF THE EA RLIER BENCH OF THIS TRIBUNAL IN THE CASE OF KARSANBHAI KHODIDAS PATEL [HUF] V. A CIT (SUPRA). IT WAS THEREFORE PLEADED THAT THE ISSUE REQUIRES TO BE DE CIDED IN FAVOUR OF THE ASSESSEE. 8.2.1 HOWEVER THE LEARNED D.R. SUPPORTED THE STAND OF THE AUTHORITIES BELOW. 8.3 WE HAVE CAREFULLY CONSIDERED RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT MATERIALS ON CASE RECORD. 8.3.1 AT THE OUTSET WE WOULD LIKE TO REITERATE THA T THESE ISSUES HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSEE WHILE ADJUDICATIN G THE GROUND NOS. 2 AND 3 RAISED IN FAVOUR OF THE ASSESSEE BY FOLLOWING THE F INDINGS OF THE EARLIER BENCH OF THIS TRIBUNAL IN THE CASE OF KARSANBHAI KH ODIDAS PATEL (HUF) SUPRA. SINCE THE FACTS AND CIRCUMSTANCES OF THE CA SE AND THE ISSUES INVOLVED IN THESE GROUNDS BEING IDENTICAL THE A.O. IS DIREC TED TO TREAT THE INCOME OF THE ASSESSEE ARISING OUT OF SALE OF 1391 DDBS BY TH E ASSESSEE AS LTCG AND CONSEQUENTLY TO ALLOW THE ASSESSEES CLAIM OF DEDU CTION OF RS. 4 20 20 000/- U/S. 54EC OF THE ACT. IT IS ORDERED ACCORDINGLY. 25. SINCE THE ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE CO-ORDINATE BENCH OF TRIBUNAL IN EARLIER YEARS AND SINCE THE REVENUE COULD NOT BRING ANY MATERIAL ON RECORD IN ITS SUPPO RT OR COULD CONTROVERT THE SUBMISSION OF A.R. WE FOLLOWING THE DECISION O F THE CO-ORDINATE BENCH OF TRIBUNAL DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. THUS THIS GROUND OF REVENUE IS DISMISSED. ADDITION OF RS. 4 52 667/- UNDER THE HEAD INCOME FROM HOUSE PROPERTY. ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 16 26. ON PERUSING THE DETAILS FILED BY THE ASSESSEE ASSE SSING OFFICER NOTICED THAT ASSESSEE WAS OWNING IMMOVABLE PROPERTIES NAMEL Y NIRMA HOUSE NIMA HOUSE AND FARM HOUSE . THE ASSESSEE WAS ASKED TO FURNISH ITS EXPLANATION AS TO WHY NO INCOME FROM HOUSE PROPERTY HAS BEEN OFFERED FOR TAX. IN THE ABSENCE OF ANY INFORMATION OR SUBMI SSIONS BY THE ASSESSEE. A.O. NOTICED THAT NIMA HOUSE WAS REFLECT ED AS ASSET IN THE BALANCE SHEET OF SHRI KARSANBHAI PATEL AND SHRI RAK ESH K PATEL ASSESSEES FATHER AND BROTHER RESPECTIVELY. HE THE REAFTER CONSIDERING THE AREA MONTHLY RENT FETCHING CAPACITY DETERMINED THE ANNUAL VALUE OF PROPERTY TO BE RS. 19.5 LACS. HE THEREAFTER CONSID ERED 1/3 RD SHARE IN THE PROPERTY TO BE OF ASSESSEE AND THEREAFTER PROCEEDED TO DETERMINE THE VALUE OF NIMA HOUSE ON THE BASIS OF ANNUAL VALUE. HE ACCORDINGLY CONSIDERED THE SHARE OF ASSESSEE IN NIMA HOUSE TO B E AT RS. 6 50 000/- AND AFTER GRANTING OF DEDUCTION UNDER SECTION 24(A) AT 30% DETERMINED THE INCOME FROM HOUSE PROPERTY TO BE AT RS. 4 55 00 0/- AND ADDED THE SAME TO THE INCOME. AGGRIEVED BY THE ORDER OF ASSES SING OFFICER ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) G RANTED SUBSTANTIAL RELIEF TO THE ASSESSEE BY HOLDING AS UNDER:- 7.1 DURING THE COURSE OF APPEAL PROCEEDINGS IT IS SUBM ITTED BY THE A.R. OF THE APPELLANT THAT VALUATION IS TOO EXORBITANT AND EXCE SSIVE. HE SUBMITTED THAT THE VALUATION MADE BY AHMEDABAD URBAN DEVELOPMENT AUTHO RITY (AUDA) WHEREIN THE AMOUNT PAYABLE IS WORKED OUT FOR RS. 800 FOR F. Y. 2003-04. THE VALUE DETERMINED BY STATUTORY AUTHORITY SHOULD BE CONSIDE RED AFTER CAPITALIZING THE SAME @ 8% WHICH IS A PREVAILING INTEREST RATE . 7.2 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A. R. OF THE APPELLANT AND THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESS ING ORDER. A.O OBSERVED THAT AS PER INFORMATION GATHERED RENT-FETCHING CAPACITY OF THE PROPERTY IS RS. 20 PER SQ.FT. HOWEVER THE BASIS OF SUCH INFORMATION IS NO T MENTIONED. A.R'S CONTENTION THAT THE VALUATION MADE BY THE LOCAL AUTHORITY I.E. AUDA SHOULD BE TAKEN AS THE BASE IS TENABLE. I HOLD THAT THE RS.800 SHOULD BE C APITALIZED @ 8% WHICH COMES TO RS.L0 000. THE INCOME IN THE HANDS OF APPELLANT BEING CO-OWNER SHOULD BE WORKED OUT AFTER TAKING THE ANNUAL VALUE OF RS.10 0 00 P.A. THE INCOME WOULD BE AS UNDER: ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 17 VALUE IN THE CASE OF APPELLANT BEING 1/3 RD OWNER RS. 3 333 LESS: DEDUCTION U/S. 24 @ 30% RS. 1 000 BALANCE INCOME RS. 2 333 HENCE ADDITION OF RS. 2 333/- IS SUSTAINED AND THE BALANCE ADDITION OF RS. 4 52 667/- IS DELETED. THIS GROUND OF APPEAL IS PA RTLY ALLOWED. 27. AGGRIEVED BY THE ORDER OF CIT(A) REVENUE IS NOW IN APPEAL BEFORE US. 28. BEFORE US THE LD. D.R. SUBMITTED THAT IN THE ABSENC E OF ANY DETAILS SUBMITTED BY THE ASSESSEE THE A.O. WAS LEFT WITH N O OTHER OPTIONS BUT TO DETERMINE THE INCOME FROM HOUSE PROPERTY ON THE BAS IS OF MATERIAL ON RECORD. HE THUS SUPPORTED THE ORDER OF A.O. 29. THE LD. A.R. ON THE OTHER HAND SUBMITTED THAT ON ID ENTICAL FACTS IN THE CASE OF RAKESHBHAI PATEL THE BROTHER OF ASSESSEE THE HON. ITAT VIDE ITS ORDER DATED 03.10.2008 FOR A.Y. 04-05 HAD SET ASID E THE ISSUE TO THE FILE OF CIT(A) FOR VERIFICATION. HE FURTHER SUBMITTED TH AT CIT(A) AFTER VERIFICATION OF THE DETAILS HAS DELETED THE ADDITIO N AND FURTHER SUBMITTED THAT DEPARTMENT HAS NOT FILED APPEAL BEFORE HON. IT AT CHALLENGING THE ORDER OF CIT(A). HE THEREFORE SUBMITTED THAT SINCE THE FACTS OF THE CASE ARE IDENTICAL TO THAT OF RAKESHBHAI PATEL SIMILAR VIEW BE TAKEN IN THE CASE OF ASSESSEE AND THE ADDITION MADE BY THE A.O. BE DE LETED. 30. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT CIT(A) VIDE ORDER DATED 20.10.2010 FOR A.Y. 04-05 IN THE CASE OF RAKESHBHAI PATEL THE BROTHER OF THE ASSESS EE HAD DECIDED THE ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 18 ISSUE BY FOLLOWING THE ORDER IN THE CASE OF ASSESSE E. THE RELEVANT FINDING OF CIT(A) READS AS UNDER:- 5.2 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A.R. OF THE APPELLANT AND THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESS MENT ORDER. SIMILAR ISSUE AROSE IN THE CASE OF SHRI HIREN K. PATEL ONE OF TH E CO-OWNERS OF THE SAID PROPERTY. THE SAME HAS ALREADY BEEN DECIDED BY ME VIDE ORDER IN APPEAL NO. CIT(A)-XI/270/2006-07 DATED 02.08.2010 WHEREIN IT WAS HELD BY ME AS UNDER:- '7.2. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A. R. OF THE APPELLANT AND THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE AS SESSMENT ORDER. A. O. OBSERVED THAT AS PER INFORMATION GATHERED RENT-FETCHING CAP ACITY OF THE PROPERTY IS RS. 20 PER SQ.FT. HOWEVER THE BASIS OF SUCH INFORMATION I S NOT MENTIONED. A.R.'S CONTENTION THAT THE VALUATION MADE BY THE LOCAL AUT HORITY I.E. AUDA SHOULD BE TAKEN AS THE BASE IS TENABLE. I HOLD THAT THE RS. 8 00 SHOULD BE CAPITALIZED @ 8% WHICH COMES TO RS. 10 000. THE INCOME IN THE HANDS OF APPELLANT BEING CO- OWNER SHOULD BE WORKED OUT AFTER TAKING THE ANNUAL VALUE OF RS. 10 000/- P.A. THE INCOME WOULD BE AS UNDER :- VALUE IN THE CASE OF APPELLANT BEING 1/3 RD OWNER. RS. 3 333 LESS. DEDUCTION U/S. 24 @ 30% RS. 1 000 BALANCE INCOME. RS. 2 333 HENCE ADDITION OF RS. 2 333 IS SUSTAINED AND THE B ALANCE ADDITION OF RS. 4 52 667/- IS DELETED. THIS GROUND OF APPEAL IS PA RTLY ALLOWED. SINCE THE ISSUE IN THE INSTANT CASE IS IDENTICAL TO THAT OF THE ABOVE CASE THE ADDITION OF RS. 2 333/- IS SUSTAINED AND THE BALANC E ADDITION OF RS. 4 52 661/- IS DELETED. THE A.O. IS DIRECTED ACCORDINGLY. THIS G ROUND OF APPEAL IS PARTLY ALLOWED. ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 19 31. THE AFORESAID ORDER OF CIT(A) WAS CONFIRMED BY TRIB UNAL IN ITA NO. 1804/AHD/2008 (ORDER DATED 3.10.2008) IN THE CASE O F SHRI RAKESHBHAI PATEL BY HOLDING AS UNDER:- 10. GROUND NO. 4 IN THE REVENUES APPEAL AND GROUN D NO. 2 IN THE CROSS OBJECTION FILED BY THE ASSESSEE RELATES TO THE RENTAL INCOME AMOUNTING TO RS. 4 55 000/-. THE A.O. MADE THE ADDITION OF RS. 4 55 000/- UNDER THE HEAD INCOME FROM HOUSE PROPERTY BY ESTIMATING THE ANNUAL LETTING VALUE OF THE PROPERTY AT RS. 6 50 000/- AS PER VALUATION MADE BY THE LOCAL AUTHORITY. WHEN THE MATTER WENT BEFORE THE CIT(A) THE CIT(A) HELD THAT IN THE ABSENCE OF ANY SUBSTANT IVE ADDITION THE ESTIMATED ADDITION ON HOUSE PROPERTY INCOME CANNOT BE ACCEPTED AND TH EREFORE HE DIRECTED THE A.O. TO VERIFY THE CORRECT RENTAL INCOME AND DECIDE THIS IS SUE ACCORDINGLY. 11. AFTER HEARING BOTH THE PARTIES AND CAREFULLY C ONSIDERING THE SUBMISSIONS MADE BY THEM WE ARE OF THE VIEW THAT NO INTERFERENCE IS CA LLED FOR IN THE ORDER OF THE CIT(A) AS NEITHER OF THE PARTIES HAS PRODUCED ANY SUBSTANT IVE EVIDENCE SHOWING THE CORRECT RENTAL INCOME EARNED BY THE ASSESSEE. UNDER THESE C IRCUMSTANCES WE DO NOT HAVE ANY ALTERNATIVE EXCEPT TO CONFIRM THE ORDER OF THE CIT( A). WE ACCORDINGLY CONFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE. THUS THIS GROUN D STANDS DISMISSED. 32. FROM THE ABOVE ORDER OF CO-ORDINATE BENCH IT IS SE EN THAT IN THE CASE OF RAKESHBHAI PATEL LD. CIT(A) HAD FOLLOWED THE ORDER IN THE CASE OF THE PRESENT ASSESSEE FOR A.Y. 04-05. THE PRESENT APPEAL OF THE ASSESSEE BEFORE US IS WITH RESPECT TO A.Y. 04-05. BEFORE US THUS IT CANNOT BE SAID THAT ISSUE IS COVERED IN ASSESSEES FAVOUR BY THE D ECISION OF TRIBUNAL IN THE CASE OF RAKESHBHAI PATEL. WE FURTHER FIND THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE A.O. THE NECESSARY DE TAILS WITH RESPECT TO THE IMPUGNED HOUSE PROPERTY WAS NOT FURNISHED BY TH E ASSESSEE AND THEREFORE THE A.O. PROCEEDED TO DECIDE THE MATTER O N THE BASIS OF MATERIAL AVAILABLE WITH HIM. WE ARE THEREFORE OF THE VIEW TH AT THE ASSESSING OFFICER BE GRANTED ONE MORE OPPORTUNITY TO DECIDE T HE ISSUE AFRESH AFTER ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 20 CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE RELEVANT MATERIAL. WE THEREFORE REMIT THE ISSUE TO THE FILE OF ASSESSI NG OFFICER TO DECIDE THE ISSUE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO SUBMIT PROMPTLY THE DETAILS CALLED FOR BY THE A.O. FOR ADJUDICATION OF ISSUE SU O MOTU WITHIN 15 DAYS FROM THE DATE OF ORDER AND WITHOUT WAITING FOR THE NOTICE FROM THE A.O. THE A.O. SHALL AFTER CONSIDERING THE SUBMISSIONS MA DE BY THE ASSESSEE DECIDE THE ISSUE IN ACCORDANCE WITH LAW. IN CASE NO DETAILS ARE SUBMITTED BY THE ASSESSEE THE A.O. SHALL BE FREE TO PROCEED AND DECIDE THE ISSUE ON THE BASIS OF MATERIAL AVAILABLE WITH HIM . THUS THIS GROUND OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 33. IN THE RESULT THE APPEAL OF THE REVENUE IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. 34. NOW WE TAKE UP ASSESSEES CO. THE ONLY EFFECTIVE G ROUND RAISED IN C.O. READS AS UNDER:- 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E RESPONDENTS CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS GROSSLY ER RED IN DIRECTING ASSESSING OFFICER TO ASSESS LONG TERM CAPITAL GAIN RS. 1 88 7 9 125/- AND DELETE SHORT TERM CAPITAL GAIN RS. 23 80 028/- IN RESPECT OF DDBS OF NIRMA LIMITED. 35. BOTH THE PARTIES BEFORE US SUBMITTED THAT THE PRESE NT GROUND OF THE C.O. IS CONNECTED WITH GROUND NO. 4 OF DEPARTMENTS APPEAL. SINCE GROUND NO. 4 OF DEPARTMENTS APPEAL HAS BEEN DISMISSED AND DEC IDED IN FAVOUR OF THE ASSESSEE THE PRESENT C.O. OF THE ASSESSEE DOES NOT SURVIVE. THUS THE C.O. IS DISMISSED. ITA NO 2959/A/10 & CO. NO. 333/A/10 . A.Y. 2004- 05 21 36. IN THE RESULT THE APPEAL OF REVENUE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES AND C.O. OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 25 -10 - 2013. SD/- SD/- (D.K. TYAGI) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT A HMEDABAD