PER VIKAS AWASTHY, JM : These cross appeals by the assessee and Revenue are against the order of Commissioner of Income Tax (Appeals)-II, Nashik dated 28-03-2007 for the assessment year 2003-04.

2. In appeal, the assessee has assailed the findings of Commissioner of Income Tax (Appeals) on two grounds which are as under :

1.

In the facts and circumstances of the case Learned Commissioner of Income Tax, Appeals-II, Nashik erred in dismissing the additional ground of appeal i.e. in not declaring the assessment order passed u/s. 143(3) r.w.s. 147 as bad in law and void ab initio.

2. In the facts and circumstances of the case Learned Commissioner of Income Tax, Appeals-II, Nashik erred in not allowing the payment of Rs.10,00,000/- made to Hutment Dwellers for vacating the premises and thereby rejecting the claim for reduction of index cost for improvement.

3. The Department on the other hand has impugned the findings of Commissioner of Income Tax (Appeals) primarily on the single issue in treating the income from sale of land as Long Term Capital Gain as against business income assessed by the Assessing Officer. The grounds raised by Revenue in appeal are as under :

1. On the facts and in the circumstances of the case, the learned CIT(A) erred in treating the under the head Long Term Capital Gains as against the adventure in the nature of trade assessed by A.O.

2. On the facts and in the circumstances of the case, the learned CIT(A) erred in treating the addition made on account of adventure in nature of trade as presumption. In para 10 of the AOs order it is very clear that assessee before entering into this transaction and after that also was ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 having series of transactions which proves that assessee was indulging in such adventure in nature of trade since long.

3. On the facts and in the circumstances of the case, the decision of the ITAT, Bombay G Bench in the case of ITO Vs. Sitaram Chamaria (6 SOT

594) may not be made applicable in this case.

4. Shri Sunil Ganoo appearing on behalf of the assessee submitted that the reassessment proceedings initiated against the assessee are bad in law as the notice u/s. 148 was issued in the name of a dead person. The ld. AR submitted that Mr. Sitaram Anandram Baheti filed his return of income for the assessment year 2003-04 on 30-09-2003 declaring taxable income of `21,88,284/-. Notice u/s. 148 was issued in the name of Mr. Sitaram Anandram Baheti on 08-11-2004 which was served on Smt. Ujjawala S. Baheti, wife of Mr. Sitaram Anandram Baheti. The appellant in response to the notice u/s. 148 intimated the Assessing Officer vide letter dated 14-01-2005 regarding the death of her husband Mr. Sitaram Anandram Baheti and also requested the Assessing Officer to give reasons for issuing notice u/s. 148 of the Act. The appellant further requested the Assessing Officer to treat the return already filed as return of income in response to notice u/s. 148 of the Act. The Assessing Officer considering Smt. Ujjawala S. Baheti as the legal representative of Mr. Sitaram Anandram Baheti, continued with the reassessment proceedings without issuing fresh notice u/s. 148 of the Act. The ld. AR contended that the initiation of reassessment proceedings in the present case are void ab initio as no assessment can be made on a dead person. The LR of deceased Mr. Sitaram Anandram Baheti had informed the Assessing Officer about his death after issuance of notice u/s. 148 of the Act, despite that the ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 Assessing Officer chose to continue with the assessment proceedings without issuing fresh notice on the LR u/s. 148 of the Act. The Assessing Officer had sufficient time available with him for issuing notice u/s. 148 on the LR even when appeal was pending before the Commissioner of Income Tax (Appeals). Since, the reassessment proceedings were completed on the basis of notice issued in the name of a dead person, the same are null and void. The first appellate authority has erred in upholding the validity of assessment proceedings by observing that the appellant participated in the assessment proceedings. Even if the appellant has participated and co-operated in assessment proceedings, it does not confer jurisdiction to Assessing Officer to make assessment on dead person. The ld. AR of the assessee asserted that it is a well settled law that neither consent nor waiver can confer jurisdiction upon a court. A defect of jurisdiction strikes at the very authority of the court to pass any decree and such defect cannot be cured even by the consent of the parties. The ld. AR contended that where the order has been passed by the court without jurisdiction it is obligation of the appellate court to set aside the order under appeal. The ld. AR in support of his submissions placed reliance on the following decisions : i. Harshad Chiman Lal Modi Vs. DLF Universal Ltd. & Another, AIR 2005 SC 4449; ii. State of Gujarat Vs. Rajesh Kumar Chimanlal Barot & Another, AIR 1996 SC 2264; iii. Vipin Walia Vs. Income Tax Officer, 67 taxmann.com 56 (Delhi); iv. Braham Parkash Vs. Income Tax Officer, 275 ITR 242 (Del); v. Spice Infotainment Ltd. Vs. Commissioner of Income Tax, 247 CTR 500 (Del); ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 vi. Mrs. Veena Vij Vs. Income Tax Officer in ITA No. 1299/Del/2012 for assessment year 2002-03 decided on 09-02-2015; vii. Shri Avinash V. Vyas Vs. Income Tax Officer in ITA Nos. 3538 & 3539/Mum/10 for assessment years 2004-05 and 2005-06 decided on 20-07-2011.

4.1 The ld. AR further submitted that a perusal of reasons for reopening which are available at page 85 of the paper book would show that reassessment proceedings have been initiated without their being any fresh material available for reopening. The Assessing Officer has invoked the provisions of section 147 merely to verify the transactions. There is no allegation against the assessee that the assessee has not truly and fairly given the details or the assessee has suppressed the income by unfair means. The ld. AR contended that there are catena of judgments which have held that reassessment proceedings cannot be initiated in the absence of any fresh and tangible material in the possession of Assessing Officer. The ld. AR in support of his submissions placed reliance on the decision of Bombay High Court in the case of Commissioner of Income Tax Vs. Smt. Maniben Valji Shah reported as 283 ITR 453 (Bom).

4.2 On merits the ld. AR of the assessee contended, that the assessee along with one Shri Narayan S. Khadake purchased plot of land which was encroached by unauthorized occupants. The land was purchased by the assessee and Shri Narayan S. Khadake in the year 1995 for a consideration of `3,60,395/-. The vendor of the land had already filed suit against illegal occupants of the land in Civil Court at Jalgaon. A sum of `10 lakhs was paid to various unauthorized occupants of the ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 land in out of Court settlement to get the land vacated. Thereafter, in the period relevant to the assessment year under appeal, the land was sold for `40 lakhs. The assessee in his return of income declared Long Term Capital Gain of `22 lakhs from the sale of land. The Assessing Officer in reassessment proceedings rejected the claim of the assessee with respect to expenditure incurred for getting the land vacated. The assessee had furnished the list of persons to whom payments were made before the authorities below. The unauthorized occupants were not ready to vacate the land till the payment is received by them in cash. The assessee was constrained to make payment in cash to the encroachers of the land. The ld. AR further submitted that the fact that land was encroached by slum dwellers is clearly evident from the perusal of purchase deed. It is also an undisputed fact that civil suit was pending before Civil Court, Jalgaon for evicting of illegal occupants of land. The suit was withdrawn on 01-03-2001 after the assessee had entered into settlement with the encroachers. The ld. AR submitted that the encroachers moved out of the land after receiving the amount from assessee and it was very difficult for the assessee to trace them as they were slum dwellers and had no permanent place of stay. The ld. AR vehemently opposed the findings of Commissioner of Income Tax (Appeals) in rejecting the claim of assessee.

5. Per contra Shri S.K. Rastogi representing the Department vehemently supported the order of Assessing Officer in disallowing the expenditure claimed by the assessee towards payment of compensation to the alleged encroachers of land and further disallowed by the Commissioner of Income Tax (Appeals). The ld. DR submitted that the assessee in his return of income had declared total income of ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 `22,30,284/- including agriculture income of `42,000/-. The original assessment was made in the case of the assessee on 29-12-2003 u/s. 143(1) of the Act. Thereafter, notice u/s. 148 was issued on 08-11-2004. The notice was duly served on the assessee i.e. LR of Mr. Sitaram Anandram Baheti. At the time of issuance of notice u/s. 148, it was not in the knowledge of Assessing Officer that Mr. Sitaram Anandram Baheti had died. In response to the notice issued u/s. 148 of the Act, the wife of the assessee informed about the death of Mr. Sitaram Anandram Baheti. The LR of the deceased not only accepted the notice but requested the Assessing Officer to treat the return already file as return in response to notice u/s. 148 and even sought reasons for reopening. Thereafter, the Assessing Officer issued notices u/s. 143(2)/142(1) in the name of LR of Mr. Sitaram Anandram Baheti i.e. the present assessee. The present assessee after the demise of her husband stepped into the shoes of her husband and being his legal representative participated in the assessment proceedings. The present assessee even filed revised return of income on 14-02-2005 declaring income of `23,81,102/- and also paid self assessment tax of `38,420/-. The Assessing Officer issued notice u/s. 143(2) on 26-03-2005 after revised return of income was filed by Smt. Ujjawala S. Baheti. All the notices were issued in the name of LR of the deceased Mr. Sitaram Anandram Baheti. The assessment order was also passed in the name of LR, i.e. Smt. Ujjawala S. Baheti. No objection whatsoever was raised by the assessee before the Assessing Officer regarding issuance of notice u/s. 148 on the dead person. Once, the Assessing Officer came to know about the death of Mr. Sitaram Anandram Baheti all notices were issued in the name of LR. Sufficient opportunity of hearing was given to the assessee. The assessee participated in the assessment ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 proceedings throughout. Therefore, no prejudice is caused to the assessee.

5.1 The ld. DR submitted that the decision rendered by the Mumbai Bench of the Tribunal in the case of Shri Avinash V Vyas Vs. Income Tax Officer (supra) is distinguishable as in the said case Assessing Officer made assessment in the name of dead person. Whereas, in the present case, the assessment was made by Assessing Officer in the name of LR of the deceased Mr. Sitaram Anandram Baheti. The ld. DR contended that even the decision in the case of Vipin Walia Vs. Income Tax Officer (supra) on which the ld. AR has placed reliance is not applicable. The facts in both the cases are distinguishable. The ld. DR in support of his submissions placed reliance on the judgment of Honble Madhya Pradesh High Court in the case of Kaushalaya Bai Vs. ACIT reported as 238 ITR 1008 . The ld. DR contended that in the said case the Honble Madhya Pradesh High Court has held that since the widow of the deceased had already participated in the proceedings, notwithstanding the fact that notice was issued in the name of dead person, the defect in the notice stood automatically cured. The ld. DR further in support of his submissions placed reliance on the following decisions : i. Commissioner of Income Tax Vs. Sumantbhai C. Munshaw, 128 ITR 142 (Guj); ii. Hemedra Ranchhoddas Merchant Vs. DIT, 351 ITR 206 (Bom);

5.2 The ld. DR submitted that the Department in appeal has assailed the findings of first appellate authority in holding the income from sale of land as Long Term Capital Gain. The facts of the case show that the ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 assessee had purchased plot of land for the purpose of earning profit and not as investment. The plot was purchased with encroachments in

1995. Majority of the encroachments were removed in 1999. Thereafter, the plot was sold in 2002 after it was free from unauthorized occupants. This clearly shows that the plot was purchased with the intention of earning huge profit after removing encroachers. The land transaction is clearly adventure in the nature of trade. Apart from the land in question, the assessee had made investment in other immovable assets as well.

6. Controverting the submissions of the ld. DR, the ld. AR submitted that in the case of Kaushlya Bai Vs. ACIT (supra), the Honble High Court has not considered the earlier judgment of Honble Madhya Pradesh High Court in the case of Khialdas And Sons Vs. Commissioner of Income Tax reported as 225 ITR 960 (MP), which is in favour of the assessee.

6.1 With regard to the appeal by Department, the ld. AR supported the findings of Commissioner of Income Tax (Appeals). The ld. AR reiterated the submissions which were made before the first appellate authority. The ld. AR contended that the assessee was Advocate by profession and was not dealing in property. The assessee made investment in properties including the land in question. The assessee did not sell any of the properties between 1985 to 2002. Merely for the reason that the assessee had made investment in immovable assets, it would be wrong to hold that the assessee was dealing in property. The ld. AR prayed for dismissing the appeal instituted by the Department. ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04

7. We have heard the submissions made by the representatives of rival sides and have perused the orders of the authorities below. The first issue raised by the assessee in appeal is with respect to validity of assessment proceedings against the dead person. The contention of the assessee is that notice u/s. 148 dated 08-11-2004 was issued in the name of Mr. Sitaram Anandram Baheti, who had died on 11-03-2004. The present assessee who is wife of Mr. Sitaram Anandram Baheti and his LR had informed about the death or Mr. Baheti to Assessing Officer immediately on the receipt of notice issued u/s. 148 of the Act. The Assessing Officer proceeded with the assessment without issuing fresh notice in the name of LR of the deceased. We observe that at the time of issuance of notice u/s. 148 it was not in the knowledge of Assessing Officer that Mr. Sitaram Anandram Baheti had died. After this fact came to the knowledge of Assessing Officer, the subsequent notices issued by the Assessing Officer u/s. 143(2)/142(1) of the Act were in the name of present assessee/appellant, the LR of Mr. Sitaram Anandram Baheti. The appellant thereafter participated in the assessment proceedings without raising any objection, whatsoever and even filed revised return of income. The Assessing Officer passed the assessment order in the name of present assessee i.e. LR of Late Mr. Sitaram Anandram Baheti.

8. The ld. AR of the assessee has placed reliance on the decisions in the case of Shri Avinash V. Vyas Vs. Income Tax Officer (supra), Veena Vij Vs. ITO (supra) and Vipin Walia Vs. Income Tax Officer (supra) to say that assessment made on the dead person is null and void. There is absolutely no doubt about this proposition. However, we find that facts in the cases on which the ld. AR of the assessee has placed ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 reliance are at variance from the facts of the case in hand. In the case of Avinash V. Vyas (supra) notice u/s. 148 was issued on a dead person, the LR of the deceased informed the Assessing Officer regarding the demise of assessee, despite that the Assessing Officer issued notice u/s. 143(2) in the name of dead person and proceeded on to make assessment in the name of dead person.

8.1 In the case of Veena Vij Vs. ITO (supra), the assessee Ashok Kumar Vij filed return of income for assessment year 2002-03 on 09- 09-2002. Shri Ashok Kumar Vij died on 11-02-2006. The LR of Shri Ashok Kumar Vij filed return of income for assessment year 2006-07 on 31-10-2006. The Assessing Officer issued notice u/s. 148 for assessment year 2002-03 on 24-03-2009 in the name of Ashok Kumar Vij. In reply to notice Shri S.C. Jain, CA again informed Assessing Officer on 14-05-2009 regarding death of Ashok Kumar Vij. The Assessing Officer was aware of the fact that Ashok Kumar Vij had died yet the Assessing Officer erred in issuing notice u/s. 148 in the name of dead person.

8.2 In the case of Vipin Walia Vs. Income Tax Officer (supra), a notice u/s. 148 was issued in the name of Shri Inder Pal Singh Walia. The notice was returned un-served with endorsement Addressee expired. Shri Inder Pal Singh Walia had died on 14-03-2015. Thereafter, the Assessing Officer issued letter to Shri Vipin Walia on 15-06-2015 to continue with the reassessment proceedings. The petitioner objected to same as no notice under the Act was received by him and the proceeding u/s. 148 had by then were barred by limitation. However, the Assessing Officer insisted to continue with proceeding u/s. ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 147/148 of the Act on the premise that notice u/s. 148 issued on 27-03-2015 was valid. The petitioner approached the Honble Delhi High Court in Writ Petition. The Honble High Court in the facts of the case quashed the notice dated 27-03-2015 and the proceeding arising therefrom. It is a trite law that no assessment can be made on the dead person and the notice of assessment/reassessment also suffers from defect if issued in the name of dead person. As per the provisions of section 159 of the Act, the Assessing Officer has to bring on record LRs of the deceased before proceeding with the assessment / reassessment proceedings. The Courts have repeatedly held that assessment framed in the name of dead person/non-existing entity is not merely a procedural irregularity that can be cured by invoking the provisions of section 292B of the Act, but are void.

9. In the facts of the present case, we are of considered view that the Assessing Officer regularized the assessment by issuing subsequent notices in the name of LR of the deceased. The records show that the Assessing Officer had brought on record LR of the deceased Mr. Sitaram Anandram Baheti. Thus, the case laws on which the ld. AR have placed reliance are distinguishable on facts. In all the aforesaid cases, the Assessing Officer erred in proceeding with assessment / issuing notices in the name of dead person even after having knowledge of the death of the assessee. Thus, the assessments made were rightly held to be null and void. In our opinion, the case laws from which the assessee is trying to draw strength does not support the cause of assessee. For the aforesaid reasons we reject the objection of the assessee qua validity of reassessment proceedings. ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04

9.1 Another objection raised by assessee against reassessment proceeding is that no fresh material was available with Assessing Officer for invoking the provisions of section 148/147 of the Act. The ld. DR has contended that initially assessment was framed u/s. 143(1) of the Act, therefore, the Assessing Officer had no occasion to make any enquiries in respect of information furnished by the assessee in the return of income. We find merit in the submissions of the ld. DR. The Assessing Officer can apply his mind and form an opinion in respect of return of income in proceedings u/s. 143(3) of the Act. In the facts of the case we find no merit in the objection raised by the assessee against reassessment proceedings. Accordingly, ground No. 1 raised in the appeal by the assessee is dismissed.

10. In ground No. 2 of the appeal, the assessee has assailed the findings of Commissioner of Income Tax (Appeals) in confirming the disallowance of `10,00,000/- i.e. the payment made to hutment dwellers for vacating the land. The document on record reveal that the land purchased by the assessee in 1995 was encroached by slum dwellers. The vendor of the land had filed suit against illegal occupants of the land in the Civil Court at Jalgaon. This fact has been recorded by the Assessing Officer in his order. It is also an undisputed fact that the civil suit against the illegal occupants of the land was subsequently withdrawn as the assessee had entered into out of court settlement with the encroachers of the land. Ostensibly, `10,00,000/- was paid in cash to the illegal occupants of the land for vacating the land. The fact that the land was illegally encroached by the hutment dwellers at the time of purchase and the same was subsequently vacated has not been disputed by the ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 Department. It is a well known fact that the illegal occupants of the property would not move out of the property unless they are compensated for vacating the property or there is order from the court against them. The assessee find it convenient to get the land vacated by paying compensation to the encroachers rather than getting involved in the rigors of court proceedings which may linger on for years. In so far as mode of payment of compensation is concerned, we find merit in the submissions of the ld. AR that the slum dwellers would move out of land only if cash payment is made to them. The illegal occupants of land may not even have bank accounts. Even if they have, they may not even trust or wait for encashment of cheques after vacating the land. The owners of the land have to take immediate possession of the land after making cash payments to illegal occupants.

11. The authorities below have disallowed the cash payments made to unauthorized occupants of the land primarily for the reasons : (i) the assessee has not produced the persons to whom payments were made; (ii) there are discrepancies in the list of persons to whom payments are made; and (iii) there is no formal agreement with the slum dwellers. Against the objection regarding non-production of hutment dwellers to whom payments were made, it has been contended that after vacating the land, the hutment dwellers settled at different places. These unauthorized occupants do not have permanent place of stay and they move from one place to another till the time they get place to settle down. Moreover, the dwellers were not personally known to the assessee. In such circumstances it is not prudent to expect from the assessee to produce the illegal occupants of land to whom payments ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 were made. In so far as second objection is concerned the assessee has furnished a copy of title of civil suit filed in the Civil Court, Jalgaon. A perusal of same shows that the suit was filed against 19 defendants, if the assessee has included the name of some more persons in the list of unauthorized occupants to whom the payments have allegedly been made and the same are not verifiable, the Assessing Officer could have made reasonable disallowance rather than rejecting the claim of assessee in toto. The third objection is that there is no formal agreement with the slum dwellers. The Assessing Officer has observed that the receipts produced by the assessee are cyclostyled bearing only name and amount. We are of the considered view that when payments are made to encroachers/illegal occupants for vacating the land no formal agreement is required to be executed. The prime object of the owner of land is to seek the possession of land and ensure that land is free from encumbrances and encroachments. The assessee has produced receipts signed by some of the persons to whom payments have been made. The objection of the Department that receipts are on cyclostyled paper and lacks information is unwarranted. When the possession of land is retrieved from unauthorized occupants especially when they are hutment dwellers against some payment the details such as area occupied by each one of them is not relevant. Thus, the objections raised by the Department in disallowing the entire payment made to encroachers for vacating the land are not justified.

12. The assessee had jointly purchased the land with Shri Narayan S. Khadake, though the assessee had major share in the land. As per assessee own admission, the assessee has paid `7.80 lakhs out of `10.00 lakhs paid to encroachers. The remaining sum of `2.20 lakhs ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 was contributed by Shri Narayan S. Khadake. Taking into consideration the entirety of facts we are of considered opinion that no disallowance on account of payment of compensation is called for. Accordingly, ground No. 2 in the appeal by assessee is allowed.

13. In the result, the appeal of the assessee is partly accepted in the aforesaid terms.

14. The Department in appeal has assailed the findings of Commissioner of Income Tax (Appeals) in treating the profit from sale of land as Long Term Capital Gain as against the business income claimed by the Assessing Officer. The Commissioner of Income Tax (Appeals) has reversed the findings of Assessing Officer by observing as under : 11. The A.O. mainly relied on the presumption that the assessee purchased the disputed nature of property with an intention of making profit, therefore, held it as adventure in the nature of trade. The A.O. was unable to give any basis for coming to such conclusion in the assessment order. The A.O. relied on the decision of CIT vs. Prabhu Dayal-82 ITR 804 and also the decision of CIT vs. Minal Ramesh Chandra- 167 ITR 507. The assessee purchased the property in the year 1995 and sold the same in the year 2002, i.e. after a gap of more than 6 years. The assessee was an Advocate and the real estate was not his business and therefore, the conclusion drawn by the A.O. that the assessee had purchased the plot for making a profit is baseless. Adventure in the nature of trade depends upon various facts and circumstances of the case. The burden is on the revenue to prove that the particular transaction is in the nature of adventure of trade. In the instant case the A.O. came to the conclusion based on wrong presumption without assessment year basis. The assessee purchased various properties for investment and sold this particular plot after a period of 6 years and does not have features of trade. It is also very difficult to establish that the assessee purchased property ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 with an intention of making profit. Thus the conduct of the assessee also does not show that the transaction is in the nature of adventure in trade. The assessee is able to argue that the property was sold for repaying the bank loan and the co-owner was wanting to build a house. Hence, the sale is making profit. As already discussed above, the assessee was an Advocate and sale and purchase of lands is not incidental to his profession. Even the character of the transaction does not prove that it is in the nature of adventure of trade and the transaction does not have any similarity of a transaction of business, because there was no sale of land transactions since 1985 to 2002 by the assessee. Therefore, it is difficult to believe that there were series of transactions to hold this particular transaction as adventure in the nature of trade. In a recent decision the I TAT , Bombay G Bench in the case of ITO vs. Sitaram Chamaria (6 SOT 594) concluded that even development of lands into building sites with a view to realize the best price without anything more is consistent that the realization of capital investment and the surplus received by the assessee will not be trading or business profit.

11.1 In view of the foregoing discussion and the totality of the facts and circumstances of the case, it is difficult to establish that the transaction amounts to adventure in the nature of trade. Therefore, the treatment given by the A.O. is incorrect and he is directed to assess the transaction under the head, "Long Term Capital Gains".

15. The documents on record show that the assessee has not indulged in sale-purchase of land/property. The assessee has purchased some properties over period of time starting from 1985 onwards. Except from the land in question the Revenue has not been able to show that the assessee has sold any other property or was dealing in land/property. The ld. DR has not been able to controvert the findings of the first appellate authority. In our opinion the findings of Commissioner of Income Tax (Appeals) are well reasoned and justified. We concur with the same. No other issue has been raised by ITA Nos. 632 & 821/PN/2007, A.Y. 2003-04 the Department in appeal. Accordingly, the appeal of the Revenue is dismissed.

16. In the result, the appeal of the assessee is partly allowed and the appeal of the Revenue is dismissed. Order pronounced on Friday, the 19 th day of August, 2016. Sd/- Sd/- (. . / R.K. Panda) (! " / Vikas Awasthy) " / ACCOUNTANT MEMBER $% " / JUDICIAL MEMBER / Pune; & / Dated : 19 th August, 2016 RK + ,$." /" / Copy of the Order forwarded to :

1.  / The Appellant. 2.  / The Respondent.

3. () / The CIT(A)-II, Nashik

4. / The CIT-II, Nashik

5. ! %%,,  ,, 0, / DR, ITAT, A Bench, Pune.

6. 2 / Guard File. //! % // True Copy// / BY ORDER, % , / Private Secretary,  ,, / ITAT, Pune