The ITO, Ward-5(2), Baroda v. Shri Natubhai S Patel, Baroda

ITA 793/AHD/2002 | 1995-1996
Pronouncement Date: 28-12-2010 | Result: Dismissed

Appeal Details

RSA Number 79320514 RSA 2002
Assessee PAN ADAPP0657P
Bench Ahmedabad
Appeal Number ITA 793/AHD/2002
Duration Of Justice 8 year(s) 8 month(s) 27 day(s)
Appellant The ITO, Ward-5(2), Baroda
Respondent Shri Natubhai S Patel, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 28-12-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 30-04-2007
Date Of Final Hearing 16-12-2010
Next Hearing Date 16-12-2010
Assessment Year 1995-1996
Appeal Filed On 01-04-2002
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABA D (BEFORE HON'BLE SHRI G.D. AGRAWAL V.P.(AZ) & HON BLE SHRI T.K. SHARMA J.M. ) I.T.A. NO. 383/AHD./2002 ASSESSMENT YEAR : 1995-1996 INCOME TAX OFFICER WARD-5(2) BARODA -VS.- RAJESHBHAI N. PATEL (HUF) BARODA (APPELLANT) (RESPOND ENT) & I.T.A. NO. 2757/AHD/2002 ASSESSMENT YEAR : 1995-1996 ASSISTANT COMMISSIONER OF INCOME TAX -VS.- SH RI RAJESH NATUBHAI PATEL BARODA CIRCLE-5 BARODA (PAN : ADAPP 0657 P) (APPELLANT) (RESPONDENT) & I.T.A. NO. 792/AHD./2002 ASSESSMENT YEAR : 1995-1996 INCOME TAX OFFICER WARD-5(2) BARODA -VS.- ARVIND P. AMIN (HUF) BARODA (PAN : AABHA 3558 A) (APPELLANT) (RESPONDENT) & I.T.A. NO. 793/AHD./2002 ASSESSMENT YEAR : 1995-1996 INCOME TAX OFFICER WARD-5(2) BARODA -VS.- SHRI NATUBHAI S. PATEL BARODA (APPELLANT) (RESPONDENT) & I.T.A. NO. 2754/AHD/2002 ASSESSMENT YEAR : 1995-1996 INCOME TAX OFFICER WARD-5(2) BARODA VS.- SHRI N ATUBHAI S. PATEL (HUF) BARODA (PAN : AADHP 3484 J) (APPELLANT) (RESPONDENT) & I.T.A. NO. 794/AHD./2002 ASSESSMENT YEAR : 1995-1996 INCOME TAX OFFICER WARD-5(2) BARODA -VS.- MUKUN DBHAI M. PATEL (HUF) BARODA (PAN : AABHP 5361 C) (APPELLANT) (RESPONDENT) & 2 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 I.T.A. NOS. 2752/AHD./2002 ASSESSMENT YEAR : 1995-1996 INCOME TAX OFFICER WARD-5(2) BARODA -VS.- SMT. SAVITABEN M. PATEL (DECEASED) BARODA (THROUGH L/H & LR MUKUNDBHAI M. PATEL) (APPELLANT) (R ESPONDENT) & I.T.A. NO. 2753/AHD/2002 ASSESSMENT YEAR : 1995-1995 INCOME TAX OFFICER WARD-5(2) BARODA -VS.- SMT . SAVITABEN M. PATEL BARODA (PAN : ABLPP 8890 K) (APPELLANT) (RESPONDENT) & I.T.A. NO. 2755/AHD./2002 ASSESSMENT YEAR : 1995-1996 INCOME TAX OFFICER WARD-5(2) BARODA -VS.- SHRI MANUBHAI M. PATEL (HUF) BARODA (PAN : AADHP 3485 K) (APPELLANT) (RESPONDENT) & I.T.A. NO. 2756/AHD./2002 ASSESSMENT YEAR : 1995-1996 INCOME TAX OFFICER WARD-5(2) BARODA -VS.- SMT. CHANCHALBEN S. PATEL BARODA (PAN : ABLPP 8890 K) (APPELLANT) (RESPONDENT) & I.T.A. NO. 2758/AHD./2002 ASSESSMENT YEAR : 1995-1996 ASSISTANT COMMISSIONER OF INCOME TAX -VS.- SMT. NEETABEN M. PATEL BARODA CIRCLE-5 BARODA (PAN : ACXPP 5254 E) (APPELLANT) (RESPONDENT) & I.T.A. NO. 2759/AHD./2002 ASSESSMENT YEAR : 1995-1996 ASSISTANT COMMISSIONER OF INCOME TAX -VS.- SHRI BABUBHAI S. PATEL BARODA CIRCLE-5 BARODA (PAN : ACZPP 3942 P) (APPELLANT) (RESPONDENT) 3 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 APPELLANT BY : SHRI K. MADHUSUDAN SR. D.R. RESPONDENT BY : SHRI S.N. SOPARKAR O R D E R PER BENCH : THESE APPEALS FILED BY THE REVENUE ARE AGAINST TWE LVE DIFFERENT ORDERS OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-V BARODA FOR ALL THE ASSESSMENT YEARS 1995-96 IN RESPECT OF FOLLOWING ASSESSEES :- NAME OF THE ASSESSEE DATE OF THE ORDER OF CIT(A.) RAJESHBHAI N. PATEL (HUF) BARODA 18.12.2001 SHRI RAJESH NATUBHAI PATEL BARODA 11.06.2002 ARVIND P. AMIN (HUF) BARODA 29.01.2002 SHRI NATUBHAI S. PATEL BARODA 07.01.2002 SHRI NATUBHAI S. PATEL (HUF) BARODA 11.06.2002 MUKUNDBHAI M. PATEL (HUF) BARODA 07.01.2002 SMT. SAVITABEN M. PATEL BARODA (THROUGH L/H & LR MUKUNDBHAI M. PATEL) 11.06.2002 SMT. SAVITABEN M. PATEL 11.06.2002 SHRI MANUBHAI M. PATEL (HUF) BARODA 11.06.2002 SMT. CHANCHALBEN S. PATEL BARODA 11.06.2002 SMT. NEETABEN M. PATEL BARODA 11.06.2002 SHRI BABUBHAI S. PATEL BARODA 11.06.2002 2. THE ONLY GROUND RAISED BY THE REVENUE IN ITS APP EAL IN THE CASE OF MUKUNDBHAI M. PATEL (HUF) IS AS UNDER :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A.) ERRED IN DELETING THE ADDITION OF RS.30 90 719/- ON PROTECTIVE BASIS MADE ON ACCOUNT OF SHORT-TERM CAPITAL GAINS IN RESPECT OF L AND GIVEN ON LEASE TO ICICI BY THE ASSESSEE AND 11 OTHER PERSONS. WHEN LE ASE DEED DEPOSIT AGREEMENT AND POWER OF ATTORNEY ARE ANALYZED HARMON IOUSLY IT IS EVIDENT THAT THE ASSESSEE HAS TRANSFERRED VARIOUS RIGHTS TO THE LEASE TO EMPOW3REING THEM TO DO ANYTHING WHATSOEVER FOR THE DEVELOPMENT AND CONSTRUCTION ON THE PREMISES AS THE LESSOR4S COULD DO THEMSELVES. THE A BOVE RIGHTS TRANSFERRED BY THE ASSESSEE DIRECTLY FLAW FROM THE OWNERSHIP OF THE LAND AND HENCE 4 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 TRANSACTION UNDER CONSIDERATION IS A TRANSFER OF A CAPITAL ASSET THUS CHARGEABLE TO CAPITAL GAIN:. 2.1. THE GROUND OF APPEAL IN RESPECT OF OTHER ASSES SEES IS IDENTICAL WITH THAT IN THE CASE OF MUKUNDBHAI M. PATEL (HUF) EXCEPT THE DIFFERENCE IN FIGURES. 3. BRIEF FACTS RELATING TO CONTROVERSY INVOLVED IN THESE 12 APPEALS ARE THAT A SEARCH OPERATION UNDER SECTION 132 WAS CARRIED OUT IN THE CASE OF MU KUNDBHAI M. PATEL GROUP ON 29.11.1994. CERTAIN TRANSACTIONS WERE NOTICED RELATING TO GOPA LBHAI PROPERTY ADMEASURING 12000 SQ.MTRS. PERTAINING TO 16 PERSONS INCLUDING SHRI MUKUNDBHAI M. PATEL (HUF). ALL THE OTHER 15 PERSONS WERE CLOSE RELATIVES OF SHRI MUKUNDBHAI M. PATEL O R WERE HUFS OF THEIR RELATIVES. OUT OF THESE PERSONS 12 PERSONS HAD GIVEN THE PROPERTY ON LEASE TO ICICI DURING THE ASSESSMENT YEAR 1995- 96. THE DETAILS OF CONSIDERATION ARE AS UNDER :- SL. NO. PLOT NO. NAME OF HOLDER PLOT AREA (IN SQ.MT.) INTEREST- FREE DEPOSIT LEASE RENT P.M. LEASE DEED DATED 1. 1B MUKUND M. PATEL HUF 750 40 LACS 3700 21.04.1994 2. 2A SAVITABEN N. PATEL 750 40 LACS 3700 21.04.1994 3. 2B NEETABEN M. PATEL 750 40 LACS 3700 21.04.1994 4. 3B NATUBHAI S. PATEL HUF 750 40 LACS 3700 21.04.1994 5. 5A RAJESH N. PATEL HUF 750 40 LACS 3700 17.10.1994 6. 5B RAJESH N. PATEL 750 40 LACS 3700 17.10.1994 7. 6A ARVIND P. AMIN HUF 750 40 LACS 3700 17.10.1994 8. 6B BABUBHAI S. PATEL 750 40 LACS 3700 17.10.1994 9. 7A NATUBHAI S. PATEL 750 40 LACS 3700 21.04.1994 10. 7B CHANCHALBEN S. PATEL 750 40 LACS 3700 21.04.1994 11. 8A SAVITABEN M. PATEL 750 40 LACS 3700 21.04.1994 12. 8B MANUBHAI N. PATEL HUF 691 37 LACS 3500 21.04.1994 5 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 ON THE BASIS OF FINDINGS AS MENTIONED IN THE ASSESS MENT ORDER IN THE CASE OF MUKUNDBHAI M. PATEL AND FURTHER FOLLOWING THE DECISION OF THE HON 'BLE SUPREME COURT IN THE CASE OF A.R. KRISHNAMURTHY VS.- CIT 176 ITR 417 (SC) THE ASSES SING OFFICER HELD THAT THE 12 PLOTS GIVEN ON LEASE TO ICICI AMOUNTS TO TRANSFER AND ATTRACT S SHORT-TERM CAPITAL GAIN. IN THE CASE OF SHRI MUKUNDBHAI M. PATEL (INDIVIDUAL) THE CAPITAL GAIN WAS BROUGHT TO TAX TREATING HIM AS OWNER OF ALL THE ABOVE PLOTS. IN APPEAL IT WAS HELD BY LEAR NED COMMISSIONER OF INCOME TAX(APPEALS) VIDE ORDER IN APPEAL NO. CAB/III-145/1998-99 DATED 30.03.1999 THAT THE PLOT HOLDERS WERE NOT BENAMIDAR OF SHRI MUKUNDBHAI M. PATEL AND CAPITAL G AIN TAXED IN THE HANDS OF SHRI MUKUNDBHAI M. PATEL (INDIVIDUAL) WAS DIRECTED TO BE DELETED. A GAINST THIS ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) THE DEPARTMENT FILED AN APPEAL . HOWEVER BASED ON THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)S ORDER IN ORD ER TO PROTECT THE INTEREST OF THE REVENUE THE QUESTION OF TAXABILITY OF THE LEASE TRANSACTION WAS CONSIDERED BY ASSESSING OFFICER IN THE HANDS OF 12 LEASEHOLDERS ON PROTECTIVE BASIS. THE ASSESSING OFFICER ISSUED THE NOTICE UNDER SECTION 148 TO ALL THE TWELVE ASSESSEES AND FINALIZ ED THE ASSESSMENT UNDER SECTION 147 OF THE ACT AND COMPUTED THE CAPITAL GAIN AS UNDER :- NAME OF THE ASSESSEE COMPUTATION OF CAPITAL GAIN RAJESHBHAI N. PATEL (HUF) BARODA RS.31 21 835/- SHRI RAJESH NATUBHAI PATEL BARODA RS.31 24 345/- ARVIND P. AMIN (HUF) BARODA RS.31 24 345/- SHRI NATUBHAI S. PATEL BARODA RS.31 21 239/- SHRI NATUBHAI S. PATEL (HUF) BARODA RS.31 24 345/- MUKUNDBHAI M. PATEL (HUF) BARODA RS.30 90 719/- SMT. SAVITABEN M. PATEL BARODA (THROUGH L/H & LR MUKUNDBHAI M. PATEL) RS.31 24 345/- SMT. SAVITABEN M. PATEL RS.31 24 345/- SHRI MANUBHAI M. PATEL (HUF) BARODA RS.28 14 345/- SMT. CHANCHALBEN S. PATEL BARODA RS.31 24 345/- SMT. NEETABEN M. PATEL BARODA RS.31 24 345/- SHRI BABUBHAI S. PATEL BARODA RS.31 24 345/- AGAINST THE AFORESAID ORDER THE ASSESSEE PREFERRED AN APPEAL. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN THE CASE OF MUKUNDBHAI M. PA TEL VIDE ORDER DATED 07.01.2002 DISCUSSED 6 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 THE ISSUE INVOLVED AT LENGTH AND HELD THAT ASSESSIN G OFFICER IS NOT JUSTIFIED IN HOLDING THAT TRANSACTION ENTERED BETWEEN THE ASSESSEE AND ICICI IS A TRANSACTION ATTRACTING CAPITAL GAIN TAX. HE ACCORDINGLY DIRECTED THE ASSESSING OFFICER TO DELET E THE ADDITION MADE OF RS.31 24 345/- TO THE INCOME IN THE CASE OF MUKUNDBHAI M. PATEL. IN ALL T HE OTHER ELEVEN CASES THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOLLOWING THE D ECISION DATED 07.01.2002 OF MUKUNDBHAI M. PATEL HUF DIRECTED THE ASSESSING OFFICER TO DELE TE THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF CAPITAL GAIN. AGGRIEVED WITH THE ORDER O F LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN RESPECT OF ALL THE 12 ASSESSEES TH E REVENUE IS IN APPEALS BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US ON BEHALF OF R EVENUE SHRI K. MADHUSUDAN LD. SR. D.R. APPEARED AND TOOK US THROUGH THE REASONING GIVEN BY THE ASSESSING OFFICER IN THE CASE OF MUKUNDBHAI M. PATEL (HUF) AND CONTENDED THAT IN THI S CASE THE ASSESSING OFFICER HAS EXAMINED THE LEASE DEED DATED 21.04.1994 FOR 8 PLOTS AND LEA SE DEED DATED 17.11.1994 FOR 4 PLOTS AS WELL AS DEPOSIT AGREEMENTS AND POWER OF ATTORNEY . THE STAT EMENT OF SHRI R. VENKATRAGHAVAN DEPUTY MANAGER ICICI LTD. DATED 18.01.1995 TOOK THE VIEW THAT ALL THE 12 ASSESSEES HAVE TRANSFERRED THE PLOTS TO ICICI LTD. AND THEREFORE LIABLE FOR C APITAL GAIN. THE LD. D.R. FURTHER POINTED OUT THAT THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT TH ERE WAS A DEAL THAT THE ASSESSEE AND OTHERS WILL SELL THE LAND IN QUESTION TO ICICI FOR A PARTICULAR CONSIDERATION. LATER FOR WHATEVER REASONS THE DEAL WAS CONVERTED INTO A LEASE TRANSACTION. HE POI NTED OUT THAT THERE WAS NOT MUCH TIME GAP BETWEEN THE SAID SALE OFFER AND LEASE DEALS. THE LE ASE DEAL WAS FOR THE SAME CONSIDERATION AS AGREED FOR IN THE SALE OFFER EXCEPT THAT 90% WAS PA YABLE ON THE DAY OF LEASE AND THE BALANCE AS ALLEGED RENT. HE FURTHER DREW OUR ATTENTION TO THE RELEVANT TERMS OF LEASE DEED EXTRACTED BY THE ASSESSING OFFICER ON PAGE NOS. 4 7 8 AND CONCLUSI ONS DRAWN BY THE ASSESSING OFFICER ON APGES 9 10 AND 11 OF THE ASSESSMENT ORDER. IT WAS ALSO P OINTED OUT THAT IT IS WORTH MENTIONING THAT AS PER THE TERMS OF THE LEASE DEED AND ALLEGED DEPOSIT AGREEMENT THE ICICI WAS ABSOLUTE OWNER OF THE STRUCTURE AND CANCEL/ LEASE/ SUB-LET THE SAME W ITHOUT LIMIT ON THE PERIOD. THE LESSEE (ICICI) HAS ABSOLUTE OPTION TO RENEW THE LEASE AT SAME TERM S AND CONDITIONS AND LESSORS SHALL GRANT RENEWAL. THE LD. D.R. CONTENDED THAT IN OTHER WORDS THE LESSOR (ASSESSEE) HAS NO OPTION. IT WAS FURTHER SUBMITTED THAT SUCH RENEWAL SHALL CONTAIN A COVENANT FOR FURTHER RENEWAL. THE POA GIVEN BY THE ASSESSEE TO ICICI HAS A CLAUSE THAT THE ICIC I CAN APPOINT IRREVOCABLE POWER OF ATTORNEY. HE POINTED OUT THAT THE ASSESSEES HAVE GIVEN THE PO SSESSION OF THE LANDS AND ALSO DEPOSITED THE 7 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 TITLE DOCUMENTS TO THE ICICI. THEREFORE THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE REVERSED AND THAT OF ASSESSING OFFI CER LEVYING THE SHORT-TERM CAPITAL GAIN BE RESTORED. 5. SHRI S.N. SOPARKAR LD. COUNSEL APPEARING ON BEH ALF OF THE ASSESSEE AT THE OUTSET POINTED OUT THAT THE ASSESSEE IN THE CASE OF MUKUNDBHAI M. PATEL (HUF) HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE. THE SAID APPLICAT ION READS AS UNDER :- APPELLANT CRAVES LEAVE TO PLACE THE FOLLOWING ADDI TIONAL EVIDENCE ON RECORD OF THIS HON'BLE TRIBUNAL. 1. SURRENDER DEED OF PLOT OF LAND BY ICICI LTD. 2. INDEX CERTIFYING THE REGISTRATION OF SURRENDER DEED . THE APPELLANT RESPECTFULLY SUBMITS THAT AT THE TIME OF THE ASSESSMENT PROCEEDINGS THE ABOVEMENTIONED DOCUMENTS WERE NOT AVAILABLE FOR PRODUCTION. THE ADDITIONAL EVIDENCES ARE HEREBY PLACED ON RECOR D OF THIS HON'BLE TRIBUNAL IN ORDER TO HELP IT APPRECIATE THE CONTROV ERSY IN A BETTER AND PROPER MANNER AND FURTHER THE EVIDENCES PROPOSED TO BE PLACED BEFORE THIS HON'BLE ITAT ARE IMPORTANT AND DECISIVE EVIDEN CES IN DETERMINING THE CONTROVERSY IN JUST AND EQUITABLE MANNER. THE APPELLANT THEREFORE PRAYS TO THIS HON'BLE ITA T TO ALLOW IT TO PLACE THESE EVIDENCES ON ITS RECORD AND PRAYS THE HON'BLE ITAT TO CONSIDER THIS EVIDENCE WHILE DECIDING THE APPEAL. 5.1. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT BOTH THE AFORESAID DOCUMENTS WERE NOT AVAILABLE WHEN LEARNED COMMISSIONER OF INCOME TAX(A PPEALS) PASSED THE IMPUGNED ORDER THEREFORE BOTH THESE DOCUMENTS BE ADMITTED. THE LD . COUNSEL OF THE ASSESSEE ALSO PRODUCED THE DECISION DATED 31.10.2005 OF ITAT C BENCH IN ITA NO. 3489/AHD/1997 FOR THE ASSESSMENT YEAR 1994-95 IN THE CASE OF SHRI MUKUNDBHAI M. PATE L WHEREIN TRIBUNAL HAS UPHELD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WHEREI N HE HELD THAT SHRI MUKUNDBHAI M. PATEL IS NOT BENAMIDAR OF OTHER ASSESSEES. 5.2. THE LD. COUNSEL OF THE ASSESSEE ALSO SUBMITTED THAT THERE IS NO TRANSFER MUCH LESS TRANSFER FOR A CONSIDERATION THEREFORE THERE CAN BE NO CAPI TAL GAIN. IN SUPPORT OF THIS RELIANCE IS PLACED ON THE JUDGMENT OF THE HON'BLE RAJASTHAN HIGH COURT RE PORTED IN 321 ITR 165 (RAJ.) ADDL. CIT 8 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 VS.- LAKE PALACE HOTELS & MOTELS LTD. WHICH CONFIR MED 83 TTJ 1031 (JODH.) WHERE EVEN IN RELATION TO LEASE FOR 72 YEARS IT WAS FOUND THAT IN ABSENCE OF ANY PREMIUM NO CAPITAL GAIN TAX WOULD BE PAYABLE. 5.3. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMIT TED THAT LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS LEGALLY AND FACTUALLY CORRECT IN D ELETING THE CAPITAL GAIN TAX LEVIED BY THE ASSESSING OFFICER BECAUSE FOR LEVY OF CAPITAL GAINS TAX IT IS NECESSARY THAT THERE IS A CONSIDERATION. IN SUPPORT OF THIS RELIANCE IS PL ACED ON THE FOLLOWING DECISIONS :- (I) CIT BANGALORE VS.- B.C. SRINIVASA SETTY REPOR TED IN 128 ITR 294 (SC); (II)SUNIL SIDDHARTHBHAI VS.- CIT AHMEDABAD REPO RTED IN 156 ITR 509 (SC). IT WAS ALSO SUBMITTED THAT REFUNDABLE SECURITY DEPO SIT IS NOT A CONSIDERATION AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF SIDDHESHWAR SA HAKARI SAKHAR KARKHANA LTD. VS.- CIT & OTHERS REPORTED IN 270 ITR 1 (SC) AND BY THE HON'BL E MADRAS HIGH COURT IN THE CASE OF CIT VS.- MADURAI SOFT DRINKS PVT. LTD. REPORTED IN 276 ITR 607 (MAD.). IT WAS ALSO SUBMITTED THAT THE HON'BLE KERALA HIGH COURT IN THE CASE OF CIT VS.- TRAVANCORE RUBBER & TEA CO. LTD. REPORTED IN 190 ITR 508 (KER.) HELD THAT EARNEST MONEY DEPOS IT IS NOT TO BE TREATED AS AN ADVANCE. 5.4. WITH REGARD TO TAX PLANNING THEORY OF THE DEPA RTMENT THE LD. COUNSEL OF THE ASSESSEE POINTED OUT THAT IT IS FACTUALLY INCORRECT BUT EVE N IF IT IS PRESUMED THAT IT WERE TRUE THAT BY ITSE LF WILL NOT MAKE THE TRANSACTION TAXABLE. IN SUPPORT O F THIS RELIANCE WAS PLACED ON THE JUDGMENT OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF BANYA N AND BERRY VS.- CIT REPORTED IN 222 ITR 831 (GUJ.) WHICH IS CONFIRMED BY THE HON'BLE SUPRE ME COURT IN THE CASE OF UNION OF INDIA & ANOTHER VS.- AZADI BACHAO ANDOLAN & ANOTHER REPORT ED IN 263 ITR 706 (SC). THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE LEARNED COMMISSI ONER OF INCOME TAX (APPEALS) IN THE CASE OF MUKUNDBHAI M. PATEL (HUF) HAS GIVEN DETAILED REASON ING WHICH HAS BEEN FOLLOWED IN THE OTHER RELEVANT CASES THEREFORE THE VIEW TAKEN BY THE LE ARNED COMMISSIONER OF INCOME TAX(APPEALS) DELETING THE SHORT-TERM CAPITAL GAIN LEVIED BY THE ASSESSING OFFICER BE UPHELD. 6. AFTER HEARING BOTH THE SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IN THE CASE OF MUKUNDBHAI M. PATEL (HUF) TH E LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN PARA 4.18 ON PAGE 9 IN HIS ORDER A FTER CONSIDERING THE AMENDED DEFINITION OF 9 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 TRANSFER AND CONSIDERING THE PROVISIONS OF SECTION 2(47) OF THE INCOME TAX ACT 1961 TOOK THE VIEW THAT LEASE DEED IN RESPECT OF ALL THE CASES IS FOR A PERIOD OF 9 YEARS ONLY. THE POWER OF ATTORNEY DID NOT AUTHORIZE ICICI THE MOST IMPORTAN T POWER THE RIGHT TO SELL THE PLOT OR DEAL WITH THE LAND AS THE OWNER. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ALSO OBSERVED THAT ASSESSING OFFICER HAS TAXED THE RENTAL INCOME OF RS .40 700/- IN THE HANDS OF THE ASSESSEE. THEREFORE ON THE ONE HAND THE ASSESSING OFFICER I S TAXING THE INCOME TREATING THE ASSESSEE AS OWNER AND ON THE OTHER HAND HE IS TREATING THE DEP OSIT AS HAVING BEEN RECEIVED IN LIEU OF SALE CONSIDERATION MORE PARTICULARLY WHEN THE SAME WAS O NLY 90% OF MARKET VALUE. HE ALSO RECORDED THE DEPOSIT AS REFUNDABLE AND NOT IN THE FORM OF PR EMIUM. THE LEASE WAS FOR THE PERIOD OF 9 YEARS WHICH CANNOT BE SAID TO BE A LONGER PERIOD LEASE. O N THIS BASIS HE DELETED THE ADDITION MADE OF RS.30 90 719/- ON ACCOUNT OF SHORT-TERM CAPITAL GAI N. THE RELEVANT OBSERVATIONS OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ARE CONTAINED IN PARA 4.17 TO 4.19 ON PAGES 16 TO 21 OF THE IMPUGNED ORDER IN THE CASE OF MUKUNDBHAI M. PAT EL (HUF) WHICH ARE AS UNDER :- 4.17. I HAVE CONSIDERED THE SUBMISSION MADE BY TH E LEARNED COUNSEL AS WELL AS ARGUMENTS ADVANCED BY HIM. THE ASSESSMENT IS BASED ON THE INTERPRETATION OF THE WORD TRANSFER' IN THE I.T. ACT 1961 UNDER THE I. T. ACT THERE ARE THREE DIFFERENT PROVISIONS NAMELY SECTIONS 2(14) 2(47) AND 269UA WHICH AFFECT THE 'TRANSFER OF A CAPITAL ASSET' AND MAKE A TRANSFER' SUCH THAT CAPI TAL GAINS MAY BE LEVIED IF THERE IS A PROFIT ARISING UPON THE TRANSFER. SECTION 2(14) D EFINES 'CAPITAL ASSET' TO BE A 'PROPERTY OF ANY KIND HELD BY AN ASSESSEE WHETHER OR NOT CONNECTED WITH HIS BUSINESS OR PROFESSION'. SECTION 2(47) DEFINES 'TRANSFER' IN RELATION TO THE CAPITAL ASSETS AND STATES THAT 'TRANSFER IN RELATION TO CAPITAL ASSET INCLUDES - (I) THE SALE EXCHANGE OR RELINQUISHMENT OF THE ASS ET OR (II) THE EXTINGUISHMENT OF ANY RIGHTS THEREIN OR (III) THE COMPULSORY ACQUISITION THERE OF UNDER ANY LAW OR (IV) IN A CASE WHERE THE ASSET IS CONVERTED BY THE OWNER THEREOF INTO OR TREATED BY HIM AS STOCK-IN-TRADE OF A BUSINESS CARR IED ON BY NUN SUCH CONVERSION OR TREATMENT (V) ANY TRANSACTION INVOLVING THE ALLOWING OF THE P OSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A O F THE TRANSFER OF PROPERTY ACT 1882 (4 OF 1882); OR (VI) ANY TRANSACTION (WHETHER BY WAY OF BECOMIN G A MEMBER OF OR ACQUIRING SHARES IN CO-OPERATIVE SOCIETY COMPANY OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT OR ANY ARRANGEME NT OR IN ANY OTHER 10 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 MANNER WHATSOEVER) WHICH HAS THE EFFECT OF TRANSFER RING OR ENABLING THE ENJOYMENT OF ANY IMMOVABLE PROPERTY: CONSIDERING THE VARIOUS DEVICES WHICH THE TAX EVADE RS ARE APPLYING THE LEGISLATURE AMENDED THE DEFINITION OF TRANSFER BY INSERTING CLA USES (V) AND (VI) TO CLAUSE (47) OF SECTION 2. (WITH EFFECT FROM 1-4-1988). IN THE MEMO RANDUM EXPLAINING THE PROVISIONS IN THE FINANCE BILL 1987 CLAUSE 27 READS AS FOLLOW S: 'SIMPLIFICATION AND RATIONALISATION OF PROVISIONS ENLARGING THE MEANING OF 'OWNER OF HOUSE PROPERTY: - UNDER THE EXISTING PROVISIONS OF SECTION 22 OF THE INCOME-TAX ACT ANY INCOME FROM HOUSE PROPERTY IS CHARGEABLE TO TAX ONLY IN THE HAN DS OF LEGAL OWNER. AS PER SECTION 27 OF THE INCOME TAX ACT CERTAIN PERSONS WHO ARE N OT OTHERWISE LEGAL OWNERS ARE DEEMED TO BE THE OWNERS FOR THE PURPOSE OF THESE PR OVISIONS. UNDER THE TRANSFER OF PROPERTY ACT THE TRANSFER OF OWNERSHIP CAN BE EFFECTED ONLY BY MEANS OF A REGISTERED INSTRUMENT. HOWEVER IN RECEN T TIMES VARIOUS OTHER DEVISES ARE SOUGHT TO HE EMPLOYED FOR TRANSFERRING ONE'S OWNERS HIP IN PROPERTY. AS A RESULT THERE ARE SITUATIONS IN WHICH THE ACTUAL OWNER SAY OF A N APARTMENT IN A MULI-STOREYED BUILDING OR A HOLDER OF A POWER OF ATTORNEY IS NOT THE LEGAL OWNER OF A PROPERTY. IN SOME CASES PENDING RESOLUTION OF DISPUTES THE LEG AL AS WELL AS THE BENEFICIAL OWNER ARE ASSESSED TO TAX IN RESPECT OF THE SAME INCOME. AS A MEASURE OF RATIONALISATION THE BILL SEEKS TO ENLARGE FURTHER THE MEANING OF THE EXPRESSION 'OWNER OF HOUSE PROPERTY GIVEN IN CLAUS E (III) OF SECTION 27 BY PROVIDING THAT A PERSON WHO COMES TO HAVE CONTROL OVER THE PR OPERTY BY VIRTUE OF SUCH TRANSACTIONS AS ARC REFERRED TO IN CLAUSE (F) OF SE CTION 269UA WILL ALSO HE DEEMED TO BE THE OWNER OF THE PROPERTY. THE AMENDMENT ALSO SEEKS TO ENLARGE THE APPLICABIL ITY OF THIS CLAUSE TO A MEMBER OF A COMPANY OR OTHER AS SOCIATION OF PERSONS. CORRESPONDING AMENDMENTS HAVE ALSO BEEN PROPOSED IN REGARD TO THE DEFINITION OF 'TRANSFER' IN SECTION 2(47) OF THE INCOME TAX ACT SECTION 2(M) OF THE WEALTH -TAX ACT DEFINING 'NET WEALTH' AND SECTION 2(XII) OF THE GIF T-TAX ACT DEFINING 'GIFT. 'THESE AMENDMENTS WILL TAKE EFFECT FROM APRIL 1 19 88 AND ACCORDINGLY APPLY IN RELATION TO THE ASSESSMENT YEAR 1988-89 AND SUBSEQUENT YEARS.' THE RELEVANT CLAUSES REFERRED TO IN THE MEMORANDUM EXPLAINING THE FINANCE BILL READ AS UNDER : CLAUSE 3(G) READS AS UNDER : '....SUB CLAUSE (G) OF THIS CLAUSE SEEKS TO INSERT TWO NEW SUB-CLAUSES IN CLAUSE (47) OF THIS SECTION WHICH DEALS WITH THE DEFINITION OF THE EXPRESSION 'TRANSFER'. SUB-CLAUSE (V) REFERS TO ANY TRANSACTION INVOLVING THE ALLOWIN G OF THE POSSESSION OF ANY IMMOVABLE PROPERLY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER O F PROPERTY ACT 1882 TO BE A TRANSFER WHILE SUB-CLAUSE (VI) INCLUDES ANY TRANSA CTION WHICH HAT THE EFFECT OF TRANSFERRING OR ENABLING THE ENJOYMENT OF ANY IMMOV ABLE PROPERTY ALSO AS A TRANSFER. 11 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 THE EXPRESSION 'IMMOVABLE PROPERTY' OCCURRING IN T HESE TWO NEW SUB-CLAUSES WILL HAVE THE SAME MEANING AS IN CLAUSE (D) OF SECTION 2 69UA OF THE ACT. THESE AMENDMENTS [OTHER THAN AMENDMENT BY SUB-CLAUS E (D)] TAKE EFFECT FROM 1ST APRIL 1988 AND WILL ACCORDINGLY APPLY IN RELATI ON TO THE ASSESSMENT YEAR 1988-89 AND SUBSEQUENT YEARS....... ' CLAUSE (6) READS AS UNDER : '...........CLAUSE 6 SEEKS TO AMEND SECTION 27 OF T HE INCOME-TAX ACT WHICH DEFINES 'OWNER OF HOUSE PROPERTY '. THE AMENDMENT SEEKS TO ENLARGE THE MEANING OF 'OWNE R OF BUILDING' GIVEN IN CLAUSE (III) BY PROVIDING THAT A PERSON WHO COMES TO HAVE CONTROL OVER THE PROPERTY BY VIRTUE OF THE TRANSACTIONS AS ARE REFERRED TO IN CLAUSE (F ) OF SUB-SECTION (2) OF SECTION 269UA MIL ALSO BE DEEMED TO BE THE OWNER OF THE PR OPERTY. THE AMENDMENT ALSO SEEKS TO ENLARGE THE APPLICABILITY OF THIS CLAUSE T O A COMPANY OR OTHER ASSOCIATION OF PERSONS. THIS AMENDMENT WILL TAKE EFFECT FROM 1ST APRIL 198 8 AND WILL ACCORDINGLY APPLY IN RELATION TO THE ASSESSMENT YEAR 1988-89 AND SUBSEQU ENT YEARS.....' AFTER THE ABOVE AMENDMENT THE OBSERVATIONS OF THE SUPREME COURT IN CIT V. PODAR CEMENT PVT LTD.[ 226 ITR 625 AT PAGE 653] ARE RELEV ANT: '.. ... FROM THE MEMORANDUM EXPLAINING THE FINANCE BILL 1987 [1987] 165 ITR (ST.) 161 IT IS CRYSTAL CLEAR THAT THE AMENDMENT W AS INTENDED TO SUPPLY AN OBVIOUS OMISSION OR TO CLEAR UP DOUBTS AS TO THE MEANING OF THE WORD 'OWNER' IN SECTION 22 OF ME ACT. ..........THE SETTLED POSITION THAT UNDER THE COMMO N LAW 'OWNER' MEANS A PERSON WHO HAS GOT VALID TITLE LEGALLY CONVEYED TO HIM AFTER COMPLYING WITH THE REQUIREMENTS OF LAW SUCH AS THE 'TRANSFER OF PROPERTY ACT REGISTRA TION ACT ETC. BUT M THE CONTEXT OF SECTION 22 OF THE INCOME-FAX ACT HAVING REGARD TO THE GROUND REALITIES AND FURTHER HAVING REGARD TO THE OBJECT OF THE INCOME-T AX ACT NAMELY 'TO TAX THE INCOME ' WE ARE OF THE VIEW 'OWNER' IS A PERSON W HO IS ENTITLED TO RECEIVE INCOME FROM THE PROPERTY M HIS OWN RIGHT.....' 4.18 AFTER CONSIDERING THE AMENDED DEFINITION OF T RANSFER IT IS NOW NECESSARY TO CONSIDER THE PROVISIONS OF SECTION 45 OF THE ACT. SECTION 45 PROVIDES THAT ANY PROFIT OR GAIN ARISING FROM THE T RANSFER OF A CAPITAL ASSET EFFECTED IN THE PREVIOUS YEAR SHALL BE CHARGEABLE T O TAX UNDER THE HEAD CAPITAL GAIN. THEREFORE IN RELATION TO EVERY TRA NSACTION OF A TRANSFER OF CAPITAL ASSET THE QUESTION WILL HAVE TO BE DECID ED AS TO IN WHICH PREVIOUS YEAR THE TRANSACTION WAS EFFECTED. IN OTHER WORDS THE EXPRESSION EFFECTED IN THE CONTEXT IN WHICH IT IS USED WOULD MEAN THE P REVIOUS YEAR IN WHICH THE TRANSFER OF THE ASSET BECAME COMPLETE OR OPERATIVE IN THE SENSE OF THE TITLE OF THE TRANSFEROR BEING EXTINGUISHED AND THE TITL E OF THE TRANSFEREE BEING CREATED. 12 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 CONSIDERING THE ABOVE I AM OF THE OPINION THAT TH E LEASE DEED IN THE CASE OF THE APPELLANT IS FOR A PERIOD OF 9 YEAR S ONLY. THE POWER OF ATTORNEY DID NOT AUTHORIZE ICICI THE MOST IMPORTAN T POWER THE RIGHT TO SELL THE PLOT OR DEAL WITH THE LAND AS THE OWNER. I N THE DEPOSIT AGREEMENT AS AN ALTERNATIVE TO THE RECOURSE TO PENAL INTEREST AN D LEGAL PROCEEDINGS FOR RECOVERY OF THE SECURITY DEPOSIT THE AGREEMENT PRO VIDED AS UNDER :- THE LESSEE MAY EXERCISE THE OPTION TO HAVE THE SAI D LEASE RENEWED FOR A FURTHER PERIOD OF 90 YEARS SUBJECT HOWEVER TO THE SAID SECURITY DEPOSIT BEING CONTINUED TO BE SO DEPOSITED FREE OF INTEREST WITH THE LESSORS AS STIPULATED HEREIN P ROVIDED THAT PENDING THE EXECUTION OF THE SAID RENEWED LEASE TH E LESSORS SHALL ALLOW THE LESSEE TO CONTINUE TO HOLD THE DEMI SED PREMISES AT THE SAME RENT AND ON THE TERMS AND CONDITIONS CO NTAINED IN THE SAID LEASE AND THAT THE LESSORS HEREBY AGREE AN D UNDERTAKE AND COVENANT WITH THE LESSEE THAT THE LESSORS SHALL NOT EXERCISE THEIR POWER TO REENTER THE DEMISED PREMISES AS PROV IDED UNDER CLAUSE 4 OF THE SAID LEASE BUT ALLOW THE LESSEE TO CONTINUE TO HOLD THE DEMISED PREMISES AT THE RENT AND ON THE TE RMS AND CONDITIONS CONTAINED IN THE SAID LEASE UNTIL THE AI D RENEWED LEASE IS EXECUTED. FROM THE ABOVE CLAUSE TO DEPOSIT AGREEMENT IT CANNO T BE CONCLUDED THAT THE APPELLANT HAD EXERCISE ITS OPTION OR HAD INTENTION TO GIVE THE PROPERTY UNDER CONSIDERATION ON LEASE FOR A PERIOD OF 90 YEARS OR FOR A LONGER PERIOD. THE RENEWAL CLAUSE WAS ONLY FOR THE SAFETY OF DEPOSIT A S AN ALTERNATIVE. CONSIDERING THE SAME I AM OF THE VIEW THAT ON THE EXPIRY OF 9 YEARS IF THE ALTERNATIVE OPTION WOULD HAVE BEEN EXERCISED BY THE APPELLANT (I.E. THE PROPERTY WOULD HAVE BEEN GIVEN ON LEASE OF 90 YEARS ) THE A.O. COULD HAVE BEEN TAXED THE SAME. IN THE PRESENT CASE THERE WAS ONLY AN ALTERNATE OPTION WHICH WAS NEVER EXERCISED OR DEEMED TO HAVE BEEN EX ERCISED. THE LEASE AGREEMENT WAS ALSO DECIDED TO BE CANCELLED BY THE I CICI AS PER LETTER DATED 1.3.2001 AND OUT OF 12 PARTIES WHO WERE THE PARTIES FOR THE SAID LEASE THE ICICI HAS SURRENDERED PLOTS TO 8 PARTIES BY A SEPAR ATE DEED OF SURRENDER EXECUTED ON 3.3.2001 AND THEY HAD SOLD THE PLOTS TO ANOTHER PARTY- INOX LEISURE LTD. ON 27.7.2001 AFTER OBTAINING CERTIFICA TE U/S. 269UL(3) FROM THE HON'BLE APPROPRIATE AUTHORITY AHMEDABAD DATED 18.5 .2001. THUS IN MY VIEW THE A.O. ERRED IN HOLDING THAT THE TRANSACTIO N ENTERED BETWEEN THE APPELLANT AND THE ICICI WAS A TRANSACTION ATTRACTIN G CAPITAL GAIN TAX. 4.19. IT IS ALSO OBSERVED THAT THE A.O. HAD TAXED T HE RENT INCOME OF RS.40 700/- IN THE HANDS OF APPELLANT. IF THE APPEL LANT IS SAID TO HAVE TRANSFERRED THE PROPERTY THE A.O. WOULD NOT HAVE TA XED THE SAME AS RENTAL INCOME. ON THE ONE HAND THE A.O. IS TAXING THE INC OME TREATING THE APPELLANT AS OWNER IT WOULD BE IMPROPER TO TAX ON THE OTHER HAND THE DEPOSIT AS HAVING BEEN RECEIVED IN LIEU OF SALE CON SIDERATION MORE 13 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 PARTICULARLY WHEN THE SAME WAS ONLY 90% OF MARKET V ALUE. THE DEPOSIT WAS REFUNDABLE AND NOT IN THE FORM OF PREMIUM. THE LEAS E WAS FOR THE PERIOD OF 9 YEARS WHICH CANNOT BE SAID TO BE A LONGER PERIOD LE ASE. THE POWER OF ATTORNEY GIVEN WAS ONLY TO DO GENERAL ACT AND NOT A UTHORIZE THE ICICI THE RIGHT TO SELL OR DEAL WITH THE PROPERTY. IN VIEW OF THE ABOVE THE A.O. WAS NOT JUSTIFIED IN MAKING ADDITION TREATING THE LEASE AS TRANSFER. THE ADDITION MADE OF RS.30 90 719/- IS THEREFORE DELETED. 7. IN THE REMAINING 11 CASES THE LEARNED COMMISSIO NER OF INCOME TAX(APPEALS) HAS MERELY FOLLOWED HIS ORDER IN THE CASE OF MUKUNDBHAI M. PATEL (HUF). IT IS PERTINENT TO NOTE THAT AFTER THE TERMINATION OF LEASE IN CASE OF EIGHT PER SONS (OUT OF 12 PERSONS WHO WERE THE PARTIES FOR LEASE DEED) THE DEMISED LAND WAS SOLD TO ANOTHER P ARTY FOR WHICH THE SAID PARTIES HAD OBTAINED THE NECESSARY PERMISSIONS AND APPROVALS FROM THE IN COME TAX DEPARTMENT AND PROVIDED THEM TO THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEED INGS. A CERTIFICATE UNDER SECTION 269UL(3) WAS ALSO OBTAINED FROM APPROPRIATE AUTHORITY AHMED ABAD DATED 18.05.2001. ON THIS BASIS BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) IT WAS ARGUED THAT ASSESSING OFFICER WAS INCORRECT IN MENTIONING THAT :- THUS THE SECURITY DEPOSIT WAS THE CONSIDERATION FOR THE TRANSFER OF CAPITAL ASSET. NOW THAT THE SECURITY DEPOSIT HAS BE EN REFUNDED ON THE HAPPENING OF CERTAIN UNFORESEEN CIRCUMSTANCES HAS NO BEARING ON THE TAXABILITY IN THE HANDS OF THE ASSESSEE FOR A.Y. 19 95-96 AS HAS BEEN BROUGHT OUT IN PARA 6.1 ABOVE. 8. AFTER CONSIDERING THE EACH AND EVERY CONTENTION OF THE ASSESSING OFFICER IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME T AX(APPEALS) TOOK THE VIEW THAT THERE IS NO TRANSFER WITHIN THE MEANING OF SECTION 2(47) OF THE INCOME TAX ACT 1961. IN OUR OPINION THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS GIV EN COGENT REASON FOR DELETING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT O F SHORT-TERM CAPITAL GAIN. WE THEREFORE INCLINE TO UPHOLD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN RESPECT OF ALL THE ASSESSEES. 9. IN THE RESULT ALL THE APPEALS FILED BY THE REVE NUE ARE DISMISSED THE ORDER WAS PRONOUNCED IN THE COURT ON 28.12.201 0 SD/- SD/- (G.D. AGRAWAL) (T.K. SHARMA ) VICE-PRESIDENT (AZ) JUDICIAL MEMBER DATED : 28/ 12/ 2010 14 ITA NOS. 383 275 7 792 793 2754 794 2752-2753 2755-2756 2758-27 59/AHD/2002 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A.) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGIS TRAR ITAT AHMEDABAD LAHA/SR.P.S.