S.M. DALVI, MUMBAI v. THE ACIT 23(3), MUMBAI

ITSSA 51/MUM/2008 | misc
Pronouncement Date: 27-08-2010 | Result: Partly Allowed

Appeal Details

RSA Number 5119916 RSA 2008
Assessee PAN AADPD0358H
Bench Mumbai
Appeal Number ITSSA 51/MUM/2008
Duration Of Justice 2 year(s) 3 month(s) 21 day(s)
Appellant S.M. DALVI, MUMBAI
Respondent THE ACIT 23(3), MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 27-08-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 27-08-2010
Date Of Final Hearing 14-05-2010
Next Hearing Date 14-05-2010
Assessment Year misc
Appeal Filed On 06-05-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH MUMBAI. BEFORE S/SHRI S.V.MEHROTRA AM & VIJAY PAL RAO JM I.T(SS)A NO.51/ MUM/2008 BLOCK PERIOD: 1989 TO 1990 TO 1999-2000 SHRI S.M.DALVI V. THE A.C.I.T. 23(3) SHOP NO.16 GROUND FLOOR MULUND SIDDHI 4 TH FLOOR C-10 PRATYAKSHA KAR CO.OP.SOC. PLOT NO.5 R.D. P.-1 MHADA BHAVAN BAN DRA KURLA COMPLEX COLONY MULUND (E) MUMBAI-81. MUMBAI-54. PA NO.AADPD 0358 H (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI M.N.NANDGAONKAR RESPONDENT BY : SHRI D.SONGATE O R D E R PER S.V.MEHROTRA AM THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 18 TH MARCH 2008 OF LD CIT (A)-XXIII MUMBAI FOR THE BLOCK PERIOD: 1989 TO 1990 TO 1999-2000. 2. FACTS IN BRIEF ARE THAT A SEARCH AND SEIZURE OPE RATION WAS CARRIED OUT U/S.132(1) OF THE I.T.ACT 1961 ON 11.6.1998 AT THE RESIDENTIAL PREMI SES OF THE ASSESSEE SITUATED AT ALGUJ RAMBAG LANE 4 KALYAN AND AT THE OFFICE PREMISES AT 18-19 SAI VIHAR SHIVAJIPATH KALYAN(W). NOTICE U/S.158BC WAS ISSUED ON 6.7.1998 AND WAS SERVED ON THE ASSESSEE ON 21.7.1998. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE BLOCK PERIOD ON 2.11.2008 DECLARING TOTAL UNDISCLOSED INCOME AT ` 1 01 33 700/-. THE ASSESSEES MAIN BUSINESS WAS DEALING IN LANDS AND ALSO HE WAS PARTNER OF ALGUJ CHEMICAL INDUSTRIES. ANNEXURES A-4 A-5 AND A-6 OF PANCHANAMA DATED 11.6.98 PERTAINING TO OFFICE PREMISES OF THE ASSESSEE AT 18 -19 SAI VIHAR SHIVAJIPATH KALYAN(W) CONTAINED VOUCHERS FOR PAYMENTS MADE BY THE ASSESSE E TO CERTAIN INDIVIDUALS. THE TOTAL AMOUNT AS MENTIONED IN A-4 A-5 AND A-6 CAME TO ` 15 72 105/- ` 11 67 901/- AND ` 16 63 400/- RESPECTIVELY. THE AO AFTER EXAMINING THESE VOUCHER S FOUND THE CONTENTION OF THE ASSESSEE AS CORRECT WITH REFERENCE TO THE VOUCHERS RECORDED IN REGULAR BOOKS OF ACCOUNT. FURTHER FOR THE 2 BALANCE AMOUNT WHICH REMAINED UNEXPLAINED AND UNAC COUNTED HE INTER ALIA MADE THE FOLLOWING ADDITIONS IN THE ORIGINAL ASSESSMENT. A-4 ; ` 11 395.50 A-5 ; ` 27 901.00 A-6 : ` 37 900.00 ` `` ` 77 196/- HE DID NOT ACCEPT THE ASSESSEES CONTENTION THAT IF ANY ADDITION WAS TO BE MADE ON ACCOUNT OF UNACCOUNTED VOUCHERS FOR EXPENSES THEN HE SHOULD B E ALLOWED CREDIT FOR THE SAME AMOUNT AS EXPENSE HAS BEEN INCURRED OUT OF THIS INCOME AND T HEREFORE THE NET RESULT WOULD BE NIL. HE OBSERVED THAT THIS CONTENTION OF THE ASSESSEE WAS N OT ACCEPTABLE IN VIEW OF THE CLEAR PROVISIONS OF SECTION 69-C OF THE ACT. THE ASSESSEE PREFERRED AP PEAL BEFORE THE CIT (A) AND REITERATED HIS SUBMISSIONS REGARDING ALLOWING OF EXPENSES U/S.37. THE PLEA DID NOT FIND FAVOUR WITH THE CIT (A) WHO INTER ALIA OBSERVED THAT IF THIS DEDUCTI ON WAS ALLOWED THEN SECTION 69-C ITSELF BECOMES REDUNDANT. THE ASSESSEE PREFERRED APPEAL BEFORE TH E TRIBUNAL AND THE TRIBUNAL AFTER TAKING INTO CONSIDERATION THE FACT THAT THE PROVISO TO SECTION 69-C WAS INSERTED BY THE FINANCE (NO.2) ACT. 1998 W.E.F. 1.4.1999 WHICH HAD BEEN HELD TO BE PR OSPECTIVE BY THE TRIBUNAL IN THE CASE OF DGP WINDSOR (INDIA) LTD V. DCIT (2002) 74 TTJ (MUM) 291 HELD THAT ASSESSEES CLAIM UNDER SECTION 37 DESERVED TO BE CONSIDERED AND OBSERVED AS UNDER: THE ASSESSEE WOULD ACCORDINGLY BE ENTITLED TO DEDU CTION OF THE EXPENSES ADDED U/S.69C PROVIDED NEXUS IS ESTABLISHED ON THE BASIS OF SEIZED MATERIALS BETWEEN THE CASH PAYMENTS MADE AND THE LANDS PURCHASED AND SOLD. THE LD COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE WOULD BE ABLE TO ESTABLISH NEXUS BETWEEN THE CASH PAYMENTS AND THE ACTUAL PURCHASE OF LAND. THI S MATTER HAS NOT BEEN LOOKED INTO BY THE LD AO. WE WOULD ACCORDINGLY HOLD THAT THE ASSESSEE WOULD BE ENTITLED TO DEDUCTION OF THE EXPENSES ADDED U/S69C PROVIDED SUCH EXPENSES WERE OTHERWISE ALLOWABLE. THE MATTER IS ACCORDINGLY RES TORED TO THE FILE OF THE AO. THE ASSESSEE SHOULD BE GIVEN GOOD AND SUFFICIENT OP PORTUNITY TO SUBSTANTIATE ITS CLAIM THAT THE CASH PAYMENTS WERE MADE FOR PURCHASE OF LAND WHICH WERE SUBSEQUENTLY SOLD. ASSESSEES CLAIM SHALL BE CONSI DERED IN THE LIGHT OF OTHER PROVISIONS OF THE ACT INCLUDING THE PROVISIONS CONT AINED IN SECTION 40A(3) WHICH PROHIBITS/LIMITS DEDUCTION FOR PAYMENTS MADE IN CAS H. THIS MATTER ACCORDINGLY STANDS RESTORED TO THE FILE OF THE AO SUBJECT TO OU R REMARKS ABOVE. 3. THE AO HAD ALSO NOTED THAT AT PAGE 7 OF ANNEXURE -7 THAT THERE WAS A LETTER DATED 9.7.1994 FROM CHARISHMA SHELTERS PVT LTD. REGARDING INTERE ST FREE LOAN OF ` 50 LAKHS GIVEN BY THE ASSESSEE TO THE SAID COMPANY. HE NOTED THAT THE ASSESSEE HA D PAID INTEREST @ 18% ON THE LOANS RECEIVED BY HIM. THEREFORE BY APPLYING RATE OF INTEREST @ 18% HE DISALLOWED ` .1 29 452/- OUT OF THE INTEREST DEBITED TO PROFIT AND LOSS ACCOUNT. THE A SSESSEES APPEAL ON THIS COUNT WAS DISMISSED BY THE CIT (A). HOWEVER THE TRIBUNAL HAD RESTORED TH IS ISSUE TO THE FILE OF THE AO OBSERVING AS UNDER:- 3 ON CAREFUL CONSIDERATION OF THE FACTS OF THE CASE WE THINK THIS IS A FIT CASE FOR RESTORING THE MATTER TO THE FILE OF THE AO FOR FRES H EXAMINATION IN THE LIGHT OF OUR COMMENTS ABOVE. WE ORDER ACCORDINGLY. THE MATTER I S RESTORED TO THE FILE OF THE AO FOR DETERMINATION DE NOVO. THE ASSESSEE SHALL B E GIVEN GOOD AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 4. DURING THE COURSE OF HEARING THE ASSESSEE HAD T AKEN ADDITIONAL GROUND OF APPEAL REGARDING TELESCOPING OF ` . 3 85 000/- TREATED AS DEEMED INCOME U/S.69-C ON ACCOUNT OF CERTAIN VOUCHERS FOR A.Y. 1997-98 TO 19999-2000 ON ACCOUNT OF ALLEGED CASH RECEIVED BY HIM AGAINST THE SALES COMMISSION OF ` . 1 CRORE DECLARED AND DISCLOSED TO TAX BY THE ASSE SSEE AS UNDISCLOSED INCOME FOR THE ASSESSMENT YEAR 1994-95 AND 1995-96. THE TRIBUNAL NOTICED THAT THE CIT (A) HAD REJECTED THIS REQUEST AS THERE WAS NO EVIDENCE TO S HOW THAT CASH OF ` . 1 CRORE WAS AVAILABLE WITH THE ASSESSEE ON THE DATES WHEN THE CASH PAYMENTS WE RE MADE TO LAND OWNERS. THE TRIBUNAL HAD ADMITTED THIS ADDITIONAL GROUND AND RESTORED THE MA TTER TO THE FILE OF THE AO OBSERVING AS UNDER:- WE HAVE BY OUR ORDER IN PARAGRAPH 37 ABOVE HAVE RES TORED THE MATTER RELATING TO THE ADDITION U/S.69C TO THE FILE OF THE AO FOR F RESH DETERMINATION IN THE LIGHT OF OUR REMARKS. IN THE LIGHT OF THE SAID DIRECTION T HE ASSESSEES REQUEST FOR TELESCOPING OF THE EXPENSES TO AVAILABILITY OF CASH DECLARED IN THE RETURN AS ASSESSEES UNDISCLOSED INCOME ALSO NEEDS TO BE CONS IDERED BY THE AO. WE ACCORDINGLY RESTORE THE MATTER TO THE FILE OF THE A O FOR DETERMINATION AFRESH. THUS ON THE ABOVE THREE COUNTS THE MATTER HAD BEE N RESTORED TO THE FILE OF THE AO. THE AO IN PURSUANCE TO THE ORDER PASSED BY THE TRIBUNAL DATED 28.7.2003 PASSED THE IMPUGNED ORDER DATED 18.5.2007 TITLING HIS ORDER AS UNDER:- ORDER GIVING EFFECT TO THE FINDINGS/DIRECTIONS OF THE HONBLE ITAT BENCH I MUMBAI NO.195//MUMBAI/2002 DT.28.7.2 003. IN THE BACKDROP OF THESE FACTS THE ASSESSEES GROU NDS OF APPEAL ARE AS UNDER:- 1.ON THE FACTS OF THE CASE & IN LAW THE LD ACIT 2 3(3) MUMBAI HAS ERRED IN PASSING THE ORDER ON 18.5.2007 I.E. BEYOND THE PERIOD OF LIMITA TION PROVIDED U/S.153 OF THE ACT. 2. ON THE FACTS OF THE CASE & IN LAW THE LD ACIT 23(3) MUMBAI HAS ERRED IN NOT ALLOWING THE DEDUCTION U/S.37(1) OF ` . 32 92 196/- FROM THE INCOME OF THE BLOCK PERIOD A S DIRECTED BY THE ITAT IN SPITE OF THE FACTS: (A) THAT THE RELIEF WAS ALREADY GRANTED BY THE ITAT AND THAT IT WAS ONLY FOR A VERY LIMITED PURPOSE OF VERIFICATION OF CERTAIN FACTS THAT THE M ATTER WAS RESTORED TO THE FILE OF THE AO. (B) THAT THE ITAT AS THE LAST FACT FINDING AUTHORIT Y DELEGATED A LIMITED ASSIGNMENT TO HIM FOR THE PURPOSE OF GRANTING AND NOT DENYING THE AP PELLANT THE RELEVANT RELIEF. 4 3. ON THE FACTS OF THE CASE & IN LAW THE LD ACIT 2 3(3) MUMBAI HAS ERRED IN NOT ALLOWING THE DEDUCTION OF ` ..3 85 000/- UNDER THE PRINCIPLE OF TELESCOPING FRO M THE INCOME OF THE BLOCK PERIOD AS DIRECTED BY THE ITAT. 4. ON THE FACTS OF THE CASE & IN LAW THE LD ACIT 2 3(3) MUMBAI HAS ERRED IN LEVYING INTEREST U/S.158BFA (1) AT ` . 6 62 923/-. 5. THE FIRST AND SECOND GROUNDS OF APPEAL BEFORE TH E CIT (A) WAS THAT THE ACIT CIRCLE 23(3) MUMBAI ERRED IN PASSING THE ORDER DATED 18.5.2007 I .E. BEYOND THE PERIOD OF LIMITATION PROVIDED U/S.153 OF THE ACT. THE CIT (A) TAKING NOTE OF THE FACT THAT SECTION 153(3)(II) DOES NOT PRESCRIBE ANY TIME LIMIT FOR COMPLETION OF ASSESSMENT IN ORDE R TO GIVE EFFECT TO THE FINDINGS AND DIRECTIONS CONTAINED IN AN ORDER U/S.250 254 260 262 263 264 OR IN AN ORDER OF ANY COURT. DISMISSED THE ASSESSEES GROUND INTER ALIA OBSERVING THAT S INCE THE TRIBUNAL HAD NEITHER SET SIDE NOR HAD CANCELLED THE ENTIRE ORDER THEREFORE THE PROVISIO NS OF SECTION 153(2A) WERE NOT APPLICABLE. 6. LD COUNSEL FOR THE ASSESSEE TOOK US THROUGH THE TRIBUNALS ORDER AND FINDINGS NOTED ABOVE AND SUBMITTED THAT THE TRIBUNAL HAD SET ASIDE THE I SSUE TO THE FILE OF THE AO FOR FRESH CONSIDERATION AND THEREFORE THE LIMITATION AS GIVEN IN SECTION 153(2A) IS APPLICABLE AND THE PROVISIONS OF SECTION 153(3)(II) ARE NOT ATTRACTED. LD COUNSEL S UBMITTED THAT IN ORDER TO ATTRACT THE LIMITATION PRESCRIBED U/S.153(2A) IT IS NOT NECESSARY THAT TH E ENTIRE ASSESSMENT SHOULD HAVE BEEN SET ASIDE BY THE APPELLATE AUTHORITY AND IF ON CERTAIN ISSUES CONSIDERED IN THE ASSESSMENT ORDER THE ASSESSMENT HAS BEEN SET ASIDE THEN THE PROVISIONS O F SECTION 153(2A) WOULD BE APPLICABLE. IN THIS REGARD LD COUNSEL RELIED ON THE FOLLOWING DECISION S: I) POORAN SINGH V ACIT 7 SOT 126 (AGRA) II) W.C.SHAW (P)LTD V ACIT 93 ITD 535(KOLKATA) III) CIT V BHAN TEXTILE (P)LTD. 300 ITR 176 (DEL) 7. LD D.R. SUBMITTED THAT SINCE THE AO WAS REQUIRED TO GIVE EFFECT TO THE FINDINGS/DIRECTIONS OF THE TRIBUNAL THEREFORE THE PROVISIONS OF SECTI ON 153(3)(II) ARE APPLICABLE AND NOT THE PROVISIONS OF SECTION 153(2A) WHICH ARE ATTRACTED ONLY IF THE ASSESSMENT IS SET ASIDE. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE S IDES AND PERUSED THE RECORD OF THE CASE. THE MOOT POINT FOR CONSIDERATION IS WHETHER IN THE BACKDROP OF FACTS NOTED ABOVE THE PROVISIONS OF SECTION 153(2A) ARE APPLICABLE OR THE PROVISIONS OF SECTION 153(3)(II) ARE APPLICABLE. IT IS PERTINENT TO NOTE THAT WHERE AS PROVISIONS OF SECTI ON 153(2A) PRESCRIBES A TIME LIMIT FOR COMPLETION OF ASSESSMENT NO SUCH TIME LIMIT HAS BE EN PRESCRIBED UNDER THE PROVISIONS OF SECTION 153(3)(II). IN ORDER TO DECIDE THIS ISSUE WE HAVE TO EXAMINE THE TRIBUNALS OBSERVATIONS AND THE 5 CONTEXT IN WHICH THEY WERE RENDERED IN ORDER TO ARR IVE AT A PROPER CONCLUSION AS TO WHETHER THE SAME AMOUNTS TO SETTING ASIDE THE ASSESSMENT ORDER AND PASSING A FRESH ASSESSMENT OR IN EFFECT THE TRIBUNAL HAD GIVEN THE FINDINGS/DIRECTIONS AND HAD RESTORED THE MATTER TO THE FILE OF THE AO TO EXAMINE CERTAIN DETAILS IN ORDER TO GIVE EFFECT TO ITS FINDINGS/DIRECTIONS. IN ORDER TO PROPERLY APPRECIATE THE CONTROVERSY WE REPRODUCE HERE-IN-BE LOW THE RELEVANT PROVISIONS OF SECTION 153(2A) AND 153(3)(II) WHICH READ AS UNDER:- SECTION 153(2A) (2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECT IONS (1) AND (2) IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL 1971 AND ANY SUBSEQUENT ASSESSMENT YEAR AN ORDER OF FRESH ASSES SMENT UNDER SECTION 146 OR IN PURSUANCE OF AN ORDER UNDER SECTION 250 SECTION 25 4 SECTION 263 OR SECTION 264 SETTING ASIDE OR CANCELLING AN ASSESSMENT MAY BE M ADE AT ANY TIME BEFORE THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL Y EAR IN WHICH THE ORDER UNDER SECTION 146 CANCELLING THE ASSESSMENT IS PASSED BY THE ASSESSING OFFICER OR THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OR AS THE CASE MAY BE THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE CHIEF COMMISSIONER. SECTION 153(3)(II): (3) THE PROVISIONS OF SUB-SECTIONS (1) AND (2) SHAL L NOT APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS REASSESSMENTS AND RECOMPUTA TIONS WHICH MAY SUBJECT TO THE PROVISIONS OF SUB-SECTION (2A) BE COMPLETED AT ANY TIME - (I) WHERE A FRESH ASSESSMENT IS MADE UNDER SECTION 146; (II) WHERE THE ASSESSMENT REASSESSMENT OR RECOMPUT ATION IS MADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER UNDER SECTIONS 250 254 260 262 263 OR 264 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT; A BARE PERUSAL OF THE ABOVE SECTION WOULD REVEAL TH AT SECTIONS 153(2A) USES THE PHRASE AN ORDER OF FRESH ASSESSMENT WHEREAS SECTION 153(3)(II) USES THE PHRASE ASSESSMENTS REASSESSMENTS AND RE-COMPUTATIONS . FURTHER SECTION 153(2A) USES THE PHRASE SETTING ASIDE OR CANCELLING AN ASSESSMENT WHEREAS SECTION 153(3)(II) USES THE PHRASE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER. 9. IN BLACKS LAW DICTIONARY VIIITH EDITION THE TER M SET ASIDE HAS BEEN DEFINED AS UNDER:- TO ANNUL OR VACATE A JUDGMENT ORDER ETC THE TERM CANCELLATION HAS BEEN DEFINED AS UNDER:- 6 THE ACT OF DEFACING OR OBLITERATING A WRITING WITH THE INTENTION OF RENDERING IT VOID THE TERM SET-ASIDE OR CANCELLATION HAVE BEEN US ED IN THE PHRASE TOGETHER AND THEREFORE THE PRINCIPLES OF EUJESDEM GENERIS APPLIES. THE MEANIN G OF BOTH THE TERMS DERIVE COLOUR FROM EACH OTHER. THUS IN ORDER TO ATTRACT LIMITATION CONTEM PLATED U/S.153(2A) THE ENTIRE ORDER SHOULD HAVE BEEN ANNULLED OR VACATED. FURTHER THE TERM FRESH ASSESSMENT IN SECTION 153(2A) MAKES IT CLEAR THAT WHEN THE ENTIRE ASSESSMENT HAS BEEN SET ASIDE OR CANCELLED THEN ONLY THE LIMITATION LAID DOWN U/S.153(2A) WOULD APPLY BUT WHERE THE APPELLATE AUT HORITY HAS GIVEN CERTAIN FINDINGS AND CONSEQUENT DIRECTIONS TO THE AO TO MAKE THE ASSESSM ENT IN ACCORDANCE THEREWITH THEN THE LIMITATION LAID DOWN U/S.153(3)(II) WOULD APPLY AND NOT THAT GIVEN U/S.153(2A). THE LOGIC IS SIMPLE. IN CASE THE ASSESSMENT HAS BEEN SET ASIDE OR CANCELLED THE ENTIRE DEMAND ALSO CONSEQUENTLY GET CANCELLED BUT WHEN ONLY ON CERTAIN ISSUES THE MATTER IS RESTORED BACK TO THE FILE OF THE AO WITH CERTAIN DIRECTIONS THEN THE ENTIRE D EMAND IS NOT CANCELLED. IN THE FIRST CASE THE DEPARTMENT HAS TO TAKE ACTION WITHIN THE LIMITATION BUT WHEN ONLY THE EFFECT IS TO BE GIVEN TO THE DIRECTIONS OF THE APPELLATE AUTHORITY THEN THE SAME LIMITATION COULD NOT BE PRESCRIBED BECAUSE ORDER PER SE DOES NOT GET OBLITERATED. THIS ASPECT IS FURTHE R CLEAR FROM THE PHRASES USED SUBJECT TO THE PROVISIONS OF SUB-SECTION(2A) OF SECTION 153 . THUS WHEN ASSESSMENT CONTEMPLATED U/S.153(3)(II) RESULTS IN FRESH ASSESSMENT THEN THE LIMITATION AS LAID DOWN U/S.153(2A) WOULD APPLY. THIS WOULD COVER THE CASES WHERE THE ASSESS MENT HAS BEEN SET ASIDE OR CANCELLED ENTIRELY IN ORDER TO GIVE EFFECT TO THE FINDINGS AND CONSEQU ENT DIRECTIONS OF THE APPELLATE AUTHORITY. IN THIS CONTEXT WE MAY ALSO REFER TO THE EXPLANATION (2) A ND EXPLANATION (3) TO SECTION 153 WHICH READ AS UNDER: EXPLANATION 2 : WHERE BY AN ORDER REFERRED TO IN CLAUSE (II) OF SUB-SECTION (3) ANY INCOME IS EXCLUDED FROM THE TOTAL INCOME OF THE ASSESSEE FOR AN ASSESSMENT YEAR THEN AN ASSESSMENT OF SUCH INCOME FOR ANOTHE R ASSESSMENT YEAR SHALL FOR THE PURPOSES OF SECTION 150 AND THIS SECTION BE DE EMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER. EXPLANATION 3 : WHERE BY AN ORDER REFERRED TO IN C LAUSE (II) OF SUB-SECTION (3) ANY INCOME IS EXCLUDED FROM THE TOTAL INCOME OF ONE PERSON AND HELD TO BE THE INCOME OF ANOTHER PERSON THEN AN ASSESSMENT OF SU CH INCOME ON SUCH OTHER PERSON SHALL FOR THE PURPOSES OF SECTION 150 AND T HIS SECTION BE DEEMED TO BE ONE MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER PROVIDED SUCH OTHER PE RSON WAS GIVEN AN OPPORTUNITY OF BEING HEARD BEFORE THE SAID ORDER WAS PASSED. THESE EXPLANATIONS HAVE BEEN SPECIFICALLY INCORPORA TED IN SECTION 153 SO AS TO SAVE THE LIMITATION IN THOSE CASES WHERE IN CONSEQUENCE OF FRESH ASSESS MENT ORDER PASSED IN PURSUANCE TO THE ORDER OF 7 APPELLATE AUTHORITY A PART OF INCOME IS HELD TO BE TAXABLE IN ANOTHER ASSESSMENT YEAR OR IN CASE OF ANOTHER ASSESSEE. SUCH CASES HAVE BEEN BROUGHT WIT HIN THE AMBIT OF SECTION 153(3)(II) TO AVOID ANY TIME BARRING ASSESSMENT. 10. ONE MORE ASPECT WHICH NEEDS TO BE CONSIDERED IS REGARDING THE MEANING OF TERM FINDINGS OR DIRECTIONS AS CONTEMPLATED U/S.153(3) (II). IN THIS REGARD WE MAY REFER TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F ITO V MURLIDHAR BHAGWAN DAS 52 ITR 336 (SC) WHEREIN IT HAS BEEN OBSERVED THAT A FIND ING COULD ONLY BE THAT WHICH WAS NECESSARY FOR THE DISPOSAL OF AN APPEAL IN RESPECT OF AN ASSE SSMENT OF A PARTICULAR YEAR AND A DIRECTION IS GIVEN AFTER RECORDING OF FINDINGS. THERE MAY BE CA SES WHERE APPELLATE AUTHORITY HAS RECORDED FINDINGS OR DIRECTIONS SIMULTANEOUSLY AND THERE MAY BE CASES WHERE ONLY FINDINGS ARE RECORDED BUT DIRECTIONS COULD NOT BE GIVEN BECAUSE WITH REFE RENCE TO THE FINDINGS FACTUAL MATRIX HAD TO BE EXAMINED IN ORDER TO ARRIVE AT A CONCLUSION. IN TH E PRESENT CASE THE FINDING HAS BEEN RECORDED BY THE TRIBUNAL IN THE FIRST ROUND OF PROCEEDINGS THAT THE ASSESSEES CASE U/S.37 IS TO BE CONSIDERED BUT THE TRIBUNAL COULD NOT GIVE ANY DIRECTIONS REGA RDING ALLOWABILITY OF THE ASSESSEES CLAIM BECAUSE THE AO HAD NOT EXAMINED THE ISSUE IN THIS C ONTEXT. THEREFORE THE TRIBUNAL HAD RESTORED THE MATTER TO GIVE EFFECT TO ITS FINDINGS. IN THIS REGARD WE MAY ALSO REFER TO THE DECISION OF VISHAKHAPATNAM BENCH OF THE TRIBUNAL IN THE CASE OF RAGHAVA HEALTH CARE LTD V. DCIT 307 ITR(AT) 133 (VISAKHAPATNAM) WHEREIN ALSO THE TRIB UNAL HAS INTER ALIA TAKEN THE VIEW THAT THE FRESH ASSESSMENT U/S.153(2A)WOULD MEAN A SITUATION WHERE THE EARLIER ASSESSMENT AS A WHOLE IS SET ASIDE OR CANCELLED. WHEN SEVERAL ADDITIONS HAV E BEEN MADE BY THE AO AND THE APPELLATE AUTHORITY SETS ASIDE ONE OR SOME OF THE ISSUES TO T HE FILE OF THE ASSESSING OFFICER THAT SITUATION WOULD NOT GIVE RISE TO A FRESH ASSESSMENT AND IN THAT CASE SECTION 153(3) (II) OF THE ACT WOULD APPLY. IN VIEW OF ABOVE DISCUSSION WE RESPECTFUL LY DO NOT AGREE WITH THE VIEW TAKEN BY THE AGRA BENCH OF THE TRIBUNAL IN THE CASE OF POORAN SI NGH V ACIT (SUPRA). AS FAR AS THE DECISION IN THE CASE OF W.C.SHAW (P)LTD(SUPRA) IS CONCERNED TH E SAME HAS BEEN RENDERED IN ENTIRELY DIFFERENT CONTEXT. THERE THE MAIN ISSUE WAS THAT S INCE NO TIME LIMIT HAS BEEN PRESCRIBED IN CHAPTER XIV-B FOR MAKING FRESH BLOCK ASSESSMENT IN PURSUANCE OF ORDER U/S.250 254 263 OR 264 THE LIMITATION CONTEMPLATED IN SECTION 153 WOU LD APPLY OR NOT. THE VIEW TAKEN BY US IS IN CONFORMITY WITH THE DECISION OF THE HONBLE DELHI H IGH COURT IN THE CASE OF CIT V. BHAN TEXTILES (P)LTD. 300 ITR 176 (DEL) WHEREIN IT HAS BEEN HE LD THAT IN CASE ASSESSMENT IS SET ASIDE THE LIMITATION AS CONTEMPLATED U/S.153(2A) WOULD APPLY. 11. IN VIEW OF ABOVE DISCUSSION GROUND NO.1 RAISE D BY THE ASSESSEE IS DISMISSED. 8 12. APROPOS GROUND NO.2 BRIEF FACTS AS NOTED EARL IER ARE THAT THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO EXPLAIN THE ENTRIES IN DOCUMENT NO.A 4 A5 AND A6 CONTAINING ENTRIES RELATING TO ALLEGED PAYMENTS MADE BY THE ASSESSEE TO CERTAIN L AND OWNERS.. THE ASSESSEES CLAIM U/S.37 WAS DENIED BY THE AO AND THE CIT (A). THE TRIBUNAL HAD RESTORED THE MATTER REQUIRING THE ASSESSEE TO ESTABLISH THE NEXUS ON THE BASIS OF SEIZED MATERIAL BETWEEN CASH PAYMENTS MADE AND LANDS PURCHASED AND SOLD. THE AO HAS OBSERVED THAT THE ASSESSEE WAS ISSUED WITH A NOTICE DATED 20.4.2007 UNDER WHICH HE WAS GIVEN REASONABLE OPPO RTUNITY OF BEING HEARD. THE ASSESSEE FILED HIS WRITTEN REPLY DATED 8.5.2007. HE DID NOT ACCEP T THE ASSESSEES CONTENTION. HE OBSERVED THAT AS PER THE ASSESSEE THE AMOUNT SHOWN IN THE VOUCHE RS PERTAINED TO PAYMENTS MADE TO THE LAND LORDS THE NAMES OF WHOM WERE APPEARING IN THE COPY OF THE DOCUMENTS OF PURCHASE OF LAND. FURTHER IT WAS THE ASSESSEES CONTENTION THAT SURV EY NUMBER OF THE LAND PURCHASED WAS ALSO WRITTEN ON THE VOUCHER STATING THAT THE PAYMENT WAS MADE AGAINST THE LANDS PURCHASED. THE AO DID NOT ACCEPT THE ASSESSEES CONTENTION OBSERVING THAT THE ASSESSEES CONTENTION WAS NOT FULLY AGREEABLE FOR THE FOLLOWING REASONS: I) LARGE NUMBER OF VOUCHERS DO NOT CONTAIN THE DETA ILS OF SURVEY NO. OF LANDS PURCHASED AND PURPOSE OF PAYMENT. II) MANY VOUCHERS HAVE NO CONNECTION WITH THE PARTI ES WHOSE NAMES ARE REFLECTED IN THE COPY OF AGREEMENT OF PURCHASE OF LAND. III) NO CONFIRMATION WAS FURNISHED FROM THE PERSONS TO W HOM PAYMENT WAS MADE. IV) THE ASSESSEE DID NOT PRODUCE EVEN A SINGLE PARTY TO PROVE THE IDENTIFY OF THE PERSONS. THEREFORE IN THE ABSENCE OF ANY CORROBORATIVE EVI DENCE WHICH COULD LEAD TO ESTABLISH THE NEXUS BETWEEN THE PAYMENTS MADE TO PARTIES FOR PURCHASE OF LAND THE ASSESSEES CLAIM WAS HELD TO BE NOT ALLOWABLE. 13. THE CIT (A) OBSERVED IN PARA 27 AS UNDER: IT WAS THE APPELLANTS CLAIM THAT THE ENTRIES IN QUESTION HAD BEEN RELATED TO EXPENDITURE FOR THE PURCHASE OF LAND. AND SINCE THE APPELLANT WAS A DEALER IN LANDS THE ENTIRE EXPENDITURE PAID TO WHOSOEVER HE OR SHE MIGHT HAVE BEEN ONCE THE NAME HAD APPEARED IN THE SEIZED DOCUMENT WAS A S THOUGH AN ALLOWABLE EXPENDITURE. AS THOUGH BY BEING A BUSINESSMAN ENG AGED IN THE DEALINGS OF LANDS THE APPELLANT HAD BEEN PRECLUDED FROM SPENDI NG FOR ANY PERSONAL REASONS. AS THOUGH IN HIS HANDS NO CAPITAL EXPENDITURE COU LD HAVE BEEN MADE. AS THOUGH HE COULD NOT HAVE ADVANCED THE SAID AMOUNTS AS LOANS OR ADVANCES. AS 9 THOUGH HE COULD NOT HAVE MADE ILLEGAL AND DISALLOW ABLE PAYMENTS. THE APPELLANT HAD MADE THE CLAIM OF BUSINESS EXPENDITUR E. HENCE THE ONUS WAS ON HIM TO ESTABLISH THE SAME. 14. LD COUNSEL REFERRED TO MEMORANDUM POSSESSION RE CEIPT CONTAINED AT PAGE 57 ONWARDS AND POINTED OUT THAT THE PERSON FROM WHOM THE ASSE SSEE HAD PURCHASED LANDS FROM LAND OWNERS MENTIONED IN THIS MEMORANDUM AND THEREAFTER THE LAN D WAS SOLD TO GODREJ PROPERTIES AND INVESTMENTS LTD. HE SUBMITTED THAT THE VOUCHERS FO UND IN THE COURSE OF SEARCH PERTAINED TO PAYMENTS MADE TO THOSE PARTIES. HE SUBMITTED THAT ON THE VOUCHERS THE RELEVANT DETAILS ARE AVAILABLE REGARDING SURVEY NO. ETC. FURTHER HE RE FERRED TO PAPER BOOK NOS.2 3 & 4 WHEREIN LIST OF LANDLORD NAMES AS PER MEMORANDUM POSSESSION RECE IPT AND THE CORRESPONDING VOUCHERS DETAILS ARE GIVEN. HE SUBMITTED THAT ALL THESE DETAILS WER E BEFORE THE AO BUT HE HAS NOT CONSIDERED THE SAME. 15. LD D.R. RELIED ON THE ORDER OF THE CIT (A). 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE RECORD OF THE CASE. WE FIND THAT THE AO HIMSELF HAS OBSERVED IN HIS ORDER DATED 18.5.2007 THAT THE CONTENTION OF THE ASSESSEE WAS NOT FULLY AGREEABLE. THUS IT IS CLEAR THAT HE WAS OF THE VIEW THAT ENTIRELY THE ASSESSEES CLAIM WAS NOT ACCEPTABLE. HOWEVER HE HAS MADE THE DISAL LOWANCE OF THE TOTAL SUM. THE AO HAS NOT GIVEN EVEN A SINGLE EXAMPLE OF THE VOUCHERS VIS--V IS THE MEMORANDUM POSSESSION RECEIPT IN ORDER TO DEMONSTRATE THE DISCREPANCIES. THEREFORE WE ARE OF THE OPINION THAT THE MATTER NEEDS TO BE EXAMINED AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE NEXUS BETWEEN THE CASH PAYMENTS MADE TO LANDLORDS AND ENTRIES IN THE VOUCHERS FOUND DURING THE COURSE OF SEARCH. AS FAR AS THE DECISION OF THE HONBLE BOMBAY HIGH C OURT IN ASSESSEES OWN CASE IN RELATION TO PRESENT ASSESSMENT PROCEEDINGS IS CONCERNED THE SA ME PRIMARILY DEAL WITH THE FOLLOWING ISSUES AS WOULD BE EVIDENT FROM PARAS 9 & 10 OF THE SAID JUDG MENT WHICH IS REPRODUCED HEREUNDER: 9. THE TRIBUNAL BY ITS ORDER DATED 28 TH JULY 2003 DELETED CERTAIN ADDITIONS AND REMITTED MATTER BACK TO THE AO FOR VERIFICATION OF EXPENDITU RE ALLOWABLE U/S.37. THE TRIBUNAL HOWEVER CONFIRMED ADDITION OF ` .3 85 196. THE TRIBUNAL RELYING UPON THE DECISION OF THE SUPREME COURT IN CIT V. JAI PRAKASH SINGH (1996) 13 2 CTR (SC) 262 1996) 219 ITR 737 (SC) UPHELD THE JURISDICTION OF THE AO AND HELD THE NOTICE DT.6 TH JULY 1998 AS VALID IN LAW BEING UNDER THE UMBRELLA OF S.292B OF THE AC T AND HELD THAT THE SAID NOTICE WAS FACTUALLY SERVED ON THE NOTICE-APPELLANT. 10. BEING AGGRIEVED BY THE AFORESAID ORDER OF THE TRIBUNAL DT.28 TH JULY 2003 THE APPELLATE JURISDICTION OF THIS COURT UNDER SECTION 260A OF THE ACT IS INVOKED BY THE APPELLANT TO RAISE THE FOLLOWING QUESTIONS SAID TO BE QUESTION OF LAW. 10 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE THE TRIBUNAL WAS RIGHT IN LAW IN TREATING THE LETTER DT.6 TH JULY 1998 AS NOTICE U/S.158BC OF THE ACT? 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS RIGHT IN LAW IN COMING TO THE CONCLUSION THAT PROVISIONS OF SECTION 292B OF THE I.T.ACT WERE APPLICABLE TO THE PRESENT CASE? 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL WAS RIGHT IN LAW IN NOT ALLOWING DEDUCTION UNDER SECTION 37 OF ` .3 85 196/- JUST BECAUSE THE VOUCHERS OF THE SAID EXPENDITURE WERE UNDATED AND DESPITE TH E INCONTROVERTIBLE FACT THAT THE SAID EXPENDITURE RELATED TO THE TRANSACTIONS UNDERTAKING AND CONCLUDED EARLIER.? IN PARA 51 THE HONBLE HIGH COURT HAS OBSERVED AS UNDER:- 51.SO FAR AS THE LAST SUBMISSION MADE BY MR SATHE IN RESPECT OF DISALLOWANCE OF DEDUCTION OF ` .36 77 196 IS CONCERNED DISALLOWANCE IS BASED ON T HE FINDINGS OF FACT BASED ON THE MATERIAL EVIDENCE AVAILABLE ON REORD W HICH WAS APPRECIATED BY THE AUTHORITIES BELOW. THE ADDITIONS WERE CONFIRMED BY THE CIT (A) AS WELL AS BY THE TRIBUNAL. THE CONCURRENT FINDINGS OF FACT ARE RECO RDED BY BOTH THE AUTHORITIES BELOW. THE APPELLANT ON FACTS COULD NOT ESTABLISH THE SAID EXPENDITURE AS BUSINESS EXPENDITURE. SINCE THIS QUESTION REVOLVES AROUND THE APPRECIATIO N OF EVIDENCE THE VIEW TAKEN IS A REASONABLE AND POSSIBLE VIEW WHICH CAN BE SUPPORTED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD IT CAN HARDLY BE SAID TO BE A SUBSTANTIA L QUESTION OF LAW WARRANTING RE- ADJUDICATION BY THIS COURT. THUS THE SAID DECISION WAS RENDERED ONLY WHETHER T HE DISALLOWANCE OF DEDUCTION COULD BE CONSIDERED AS RAISING SUBSTANTIAL QUESTION OF LAW O R NOT. THEREFORE THE FINDINGS OF THE TRIBUNAL IN THE FIRST ROUND REGARDING CONSIDERATION OF ALLOWAB ILITY OF EXPENDITURE U/S.37 IN NO WAY GOT AFFECTED BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT. IN VIEW OF THE ABOVE THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 17. APROPOS GROUND NO.3 BRIEF FACTS ARE THAT THE A SSESSEE HAD RAISED AN ADDITIONAL GROUND BEFORE THE TRIBUNAL SEEKING BENEFIT OF TELESCOPING OF RS 3 85 000/- TREATED AS DEEMED INCOME U/S.69-C ON ACCOUNT OF CERTAIN VOUCHERS FOR THE ASS ESSMENT YEAR 1994-95 AND 1995-96 AGAINST THE UNDISCLOSED INCOME OF THE ASSESSEE ON ACCOUNT OF AL LEGED CASH RECEIVED BY HIM AGAINST THE SALES COMMISSION OF ` ` 1 CRORE DECLARED AND DISCLOSED TO TAX BY THE ASSES SEE AS UNDISCLOSED INCOME FOR THE ASSESSMENT YEAR 1994-95 AND 1995-96. THIS IS SUE WAS RESTORED TO THE FILE OF THE AO. THE AO OBSERVED THAT IN THE ABSENCE OF ANY CORROBORATIV E EVIDENCE THE ASSESSEES PLEA THAT A SUM OF R.3 85 000/- WAS AVAILABLE OUT OF THE ADVANCE OF RS . 1 CRORE WAS NOT ACCEPTABLE. THE CIT (A) CONFIRMED THE ADDITION. 18. HAVING HEARD BOTH THE SIDES WE FIND THAT ADMIT TEDLY ` 1 CRORE CASH WAS DECLARED BY THE ASSESSEE IN THE MONTH OF SEPTEMBER 1996 AS UNDISC LOSED INCOME AND THEREFORE AVAILABILITY OF 11 RS 3 85 000/- OUT OF THE SAME UPTO THE DATE OF SEA RCH ON 11.6.98 COULD NOT BE DOUBTED. IN OUR OPINION THE OUTFLOW CLAIMED IS QUITE SMALL AS COM PARED TO INFLOW. NO MAJOR EXPENSES HAVE BEEN POINTED OUT EITHER IN THE ASSESSMENT ORDER OR IN TH E APPELLATE ORDER TO DOUBT THE VERACITY OF THE ASSESSES CLAIM. THIS GROUND IS ALLOWED. 19. APROPOS GROUND NO.4 BRIEF FACTS ARE THAT VIDE HIS NOTICE DATED 17.9.98 THE AO REQUIRED THE ASSESSEE TO FILE THE BLOCK RETURN FOR THE ASSES SMENT YEARS 1989-90 TO 1999-2000 IMMEDIATELY OTHERWISE PENALTY PROCEEDINGS WERE TO BE INITIATED AGAINST HIM. IN THIS NOTICE THE AO POINTED OUT THAT HE HAD ISSUED NOTICE DT.6.7.98 REQUIRING THE ASSESSEE TO FILE THE RETURN WITHIN 15 DAYS WHICH PERIOD COULD BE EXTENDED ONLY UPTO 45 DAYS. IT WAS POINTED OUT THAT SINCE 71 DAYS HAVE ALREADY BEEN COMPLETED THE ASSESSEE IS REQUIRED TO PAY INT EREST AS WELL AS PENALTY FOR NON FILING OF THE RETURN. THE ASSESSEE IN ITS REPLY DT.28.9.98 POI NTED OUT THAT HE HAD NOT RECEIVED NOTICE DT.6.7.98 BUT ON RECEIPT OF LETTER DT.17.9.98 FILED THE BLOC K RETURN WITHIN 45 DAYS FROM THIS LETTER. IT WAS POINTED OUT THAT THE ASSESSEE WAS REQUIRED TO OBTAI N COPIES OF RECORDS SEIZED DURING THE COURSE OF ACTION U/S.132. HOWEVER INTEREST UNDER SECTION 15 8BFA AMOUNTING TO RS. 6 62 923/- WAS IMPOSED AS PER ORDER DATED 18.5.2007. THE CIT (A) NOTICED THAT THE AO IN HIS ASSESSMENT ORDER DTD.30.6.2000 HAD STATED THAT NOTICE U/S.158BC ON 6 .7.98 WAS SERVED UPON THE ASSESSEE ON 21.7.98 AND THE RETURN WAS FILED ON 2.11.98 DECLARING TOTAL UNDISCLOSED INCOME AT RS 1 01 33 700/-. THE CIT (A) ALSO NOTICED THAT AFTER ITAT HELD THE VALID ITY OF THE ORIGINAL NOTICE U/S.158BC DT.6.7.98 THE ISSUE HAD BEEN AGITATED BEFORE THE HONBLE HIGH COURT AND THE COURT IN THEIR ORDER REPORTED IN 203 CTR 623 HELD AS UNDER:- AT ANY RATE THE NOTICE DATED 6 TH JULY 1998 SUFFERED FROM ONLY TECHNICAL DEFECTS I F ANY AND IN OUR OPINION IT WAS PROTECTED UNDER THE UMBR ELLA OF SECTION 292B OF THE ACT. HE THEREFORE CONCLUDED THAT 45 DAYS WAS TO BE REC KONED WITH REFERENCE TO NOTICE DATED 6.7.98 AND NOT WITH REFERENCE TO REPLY DATED 29.9.98. HE ACCORDINGLY DISMISSED THE ASSESSEES APPEAL. 20. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE RECORD OF THE CASE. THE FIRST DISPUTE IS WHETHER 45 DAYS IS TO BE RECKONED FROM 1 7.9.98 OR FROM 6.7.98. IN HIS REPLY DATED 28.9.98 THE ASSESSEE STATED THAT HE HAD NOT RECEIV ED NOTICE DT.6.7.98 WHEREAS IN THE ASSESSMENT ORDER IT IS CLEARLY STATED THAT THE SAID NOTICE HA D BEEN SERVED ON 21.7.98. THE ASSESSEE HAD CHALLENGED NOTICE DATED 6.7.98 BEFORE THE HONBLE H IGH COURT ALSO AND THEREFORE THE ONUS WAS ON THE ASSESSEE TO ESTABLISH THAT THE NOTICE DATED 6.7.98 WAS NOT SERVED ON 21.7.98 BUT ON SOME OTHER DATE. NO SUCH EVIDENCE HAS BEEN BROUGHT ON R ECORD; THEREFORE 45 DAYS PERIOD IS TO BE RECKONED FROM 6.7.98. HOWEVER THE INTERVENING PER IOD FOR OBTAINING COPIES OF SEIZED RECORD IS TO 12 BE EXCLUDED. THE ASSESSEE HAS NOT GIVEN ANY RELEVA NT DATES WHEN IT APPLIED FOR SEIZED MATERIAL AND WHEN SAME WAS GRANTED. THE AO WILL VERIFY THES E DATES WHILE GIVING EFFECT TO THIS ORDER AND EXCLUDE THIS PERIOD FROM THE COMPUTATION OF INTERES T FOR EVERY MONTH OR PART OF A MONTH. THIS GROUND IS ACCORDINGLY ALLOWED FOR STATISTICAL PUR POSES. 21. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST 2010 SD/- (VIJAY PAL RAO) (JUDICIAL MEMBER) SD/- (S.V. MEHROTRA) (ACCOUNTANT MEMBER) MUMBAI DATED 27 TH AUGUST 2010 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-XXIII MUM BAI 4. COMMISSIONER OF INCOME TAX-23 MUMBAI 5. DEPARTMENTAL REPRESENTATIVE BENCH E MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR ITAT MUMBAI 13