UNIQUE STAR DEVELOPERS,MUMBAI vs. DCIT CC 47, MUMBAI

सुनवाई की तारीख /Date of Hearing : 15.2.2017 घोषणा की तारीख /Date of Pronouncement : 11.5.2017 आदेश / O R D E R PER RAJESH KUMAR, A. M: This is an appeal filed by the assessee against the order dated 27.12.2013 passed by the ld.CIT(A)-38, Mumbai for the assessment year 2008-09. 2. The various grounds taken by the assessee are as under :

―1.a) On the facts and in the circumstances of the case and in law the learned CIT(A) erred in confirming .the Assessment Order framed U/S 153A of the Income Tax Act, 1961 even though there was no legal and proper search in as much as no appellant specific panchanama was drawn and no incriminating material pertaining to the appellant was found and seized.

2 b) On the facts and in the circumstances of the case and in law the learned CIT(A) erred in holding that the panchnama drawn in the name of Shri Harshad Doshi evidenced search even in the case of the appellant even though no incriminating material pertaining to the appellant was either found or seized in the premises searched.

c) On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the contention of Assessing Officer that the commencement certificate is not in the name of the appellant discarding the fact that the Commencement Certificate No. MB/MNPINR/2600105-06 dated 27.01.2006 was issued in the name of "M/s Shanti Star Builders and Others" and the clarification issued by Mira Bhayander Mahanagarpalika under Right to Information Act(RTI Act) vide their letter dated 22.10.2010 clearly stated that the Commencement Certificate No.MB/MNPINR/2600105-06 dated 27.01.2006 was given to Mls. Shantistar Builders and Harshad P. Doshi jointly confirming the term "others" representing Mr. Harshad P. Doshi who is one of the members of assessee AOP. d) On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the contention of Assessing Officer that the project was not commenced by the appellant within the prescribed time as laid down under the Income Tax Act. Discarding the clarification given by the local authority vide their letter dated 21.04.2011 in response to our application under Right to Information Act that as per their record no permission I approval is given to Mr. H. P. Doshi for construction of any building in sector no. 1 of shantinagar project prior to the one given vide Commencement Certificate No.MB/MNPINR/2600105-06 dated 27.01.2006. 3.0n the facts and in the circumstances of the cases, the CIT(A) erred in confirming the contention of Assessing Officer to levying interest uls234B and 234C.‖

5. The issue raised in the ground no.1 is against the confirmation of assessment order by the ld.CIT(A) as framed by the AO under section 143(3) r.w.s.153A of the Act despite the fact that there was no valid, legal and proper search conducted on the assessee because no specific panchanama was drawn 9 and no incriminating material relating to the assessee was found and seized from the premises searched. The assessee has also challenged the order of the ld.CIT(A) upholding the order of the AO on the ground that panchanama drawn in the name of Shri Harshad P Doshi which was the proof of search even in the case of assessee even when no incriminating material was either found or seized in the premises searched. The ld. AR vehemently submitted before us that the assessment order in question was void ab-initio and bad in law as the assessment has been framed under section 153A of the Act even though no search was actually conducted in the case of the appellant. The ld. Counsel submitted that the prescribed conditions as laid down for assumption of jurisdiction u/s 153A of the Act were not satisfied and the therefore the assessment framed under section 143(3) r.w.s. 153A of the Act was without valid jurisdiction and should be quashed. The ld. AR while referring to the provisions of section 153A of the Act and section 132(1) of the Act submitted before the Bench that there were specific circumstances as mentioned in clauses (a) to (c) of section 132(1) of the Act in which the prescribed authority is empowered to issue warrant authorizing the conduct of search. The ld. AR argued that as per the provisions of section 153A(1)(a), the AO is empowered to issue notice within the prescribed period in the cases where search has been initiated and the said section is only procedural/machinery conclusion. Whereas the provisions of section 153A(1)( b) provides for assessment or re-assessment 10 the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted u/s 132 of the Act or requisition is made u/s 132A of the Act. While referring to the provisions of section 153B, the ld. AR argued that the authorization of warrant shall be deemed to be executed consequent upon search as recorded in the last panchanama drawn in relation to a person in whose case warrant of authorization is issued. The ld. AR submitted that the panchanama has to be drawn in relation to the persons on which the search was conducted whereas in the case of the assessee there was no panchanama executed and premises of the assessee were not searched. Therefore, there was no search conducted and panchanama drawn as the proof of conduct of the search which was vital. Finally the ld.AR stressed upon the fact that the search has to be carried out in the case of the assessee in order to fame the assessment under section 153A of the Act and conjoint reading of section 153A of the Act and 153B of the Act adequately clarify that assessment for preceding six assessment years were permissible to be framed only when there was a search conducted. In defense of his arguments the ld.AR also placed reliance on a serious of decisions namely (i) Hon’ble Karnataka High Court in the case of ITO V/s Wipro Finance Ltd reported in 323 ITR 467 (Kar), (ii) M/s Harsh Deep Construction V/s DCIT in ITA Nos.1941 and 1942 /Mum/2014(AY-2008-09) dated 11.5.2016,(iii)Special Bench of the Delhi Tribunal in the case of Promain Ltd V/s DCIT reported in (2006)95 11 ITD 489 (SB)(iv) J M Trading Corporation V/s ACIT (2008) 20 SOT 489 and (v) Delhi Bench of the Tribunal in the case of Sarvamangalam Builders and Developers Pvt ltd V/s ACIT in ITA No.115 to 117/Del/2011. In the Special Bench decision, the ld. AR highlighted that it is not only initiation of search which was required to be proved by warrant of search authorizing search but the AO has to prove that the search has actually been carried out in respect of the said persons through Panchanama in order to justify the notice issued for assessment under search proceedings. The ld. AR argued that search at the residence of member of assessee AOP would certainly not fulfill the prescribed conditions to authorize the search assessment under 153A of the Act in the case of assessee AOP and it was absolutely clear that no panchanama has been drawn which means that no search has taken place to provide legal basis for search assessment under section 153A of the Act. It would be contrary to the provisions of law to assume that once the warrant has been signed there is initiation of search for setting in motion the proceedings u/s 153A of the Act. The ld. AR further argued that the FAA was grossly wrong in holding that where the warrant issued in the name of the assessee and panchanama was drawn with the name of the assessee being mentioned and stated in the said panchanama there would be execution of search justifying the action u/s 153A of the Act. The ld. AR further contended that the FAA has failed to appreciate the issue from the legal perspective by overlooking and ignoring the fact that no search was 12 conducted at the business premises of the assessee at Shradha Residency, Borivali (W). The ld. Counsel submitted that it would be inconceivable that that the business premises of the assessee would be spared from proceedings u/s 132(1) of the Act in search proceedings. Finally, the ld.AR while summing up his arguments submitted that there was no conduct of search on the business premises of the assessee, no documents were seized and no incriminating documents were found and seized in the premises belonging to the member of assessee AOP and not the assessee and no specific panchanama was drawn corroborating the fact that search was actually conducted in the assessee’s premises and therefore the proceedings under section 153A of the Act were totally unsustainable invalid and consequently has to be quashed. In defense of his arguments, the ld. AR relied on a series of decisions namely J M Trading Corporation V/s ACIT reported in (2008) 20 SOT 489 (ITAT, Mum), Dr.Mansukh Kanjibhai Shah V/s ACIT reported in (2012) 18 ITR 80) (Ahd) and Sarvamangalam Builders and Developers Pvt ltd V/s ACIT in ITA No.115 to 117/Del/2011. The ld. AR submitted that in the case of Sarvamangalam Builders and Developers Pvt ltd(supra) it has been held by the Hon’ble High Court that no assessment under section 153A of the Act can be made where the residential premises of the assessee is not subject to search, no documents were seized from the premises searched and no panchanama were drawn in the name of the assessee. The ld. AR also distinguished the decision relied upon by 13 rebuttal the ld.CIT(A) in the case of CIT V/s Devesh Singh reported in 76 DTR 403(All) by submitting that in the panchanama was drawn though jointly in the name of all the parties, but in the present case search was not conducted at all and no panchanama was drawn. The ld. AR also distinguished the decision of the Hon’ble High Court in the case of MDLR Resorts Pvt Ltd V/s CIT and ors (2014) 316 ITR 407 (Del) by submitting that in that case there was no dispute as to conduct of search and seizure operation and assessee was subject to search, non preparation of panchanama in the name of the assessee and the documents were seized relating to the assessee and were mentioned in the annexure to the panchanama whereas in the present case no search had taken place and no material incriminating or otherwise was found or seized from the premises subjected to the search. The ld. AR submitted that when the name of the assessee has not mentioned in the panchanama and no material was seized with regard to the assessee it was not omission on the part of the search party to mention its name but a clear proof of the facts that no search had taken place. The ld. AR also submitted that provisions of section 153A of the Act inserted by the Finance Act in the year 2003 and in the explanatory note issued by the departmental circular No.7 of 2003 dated 5.9.2003 the scope of provisions in para 65.4 were explained which states that the AO shall issue notice to a person on whom a search was conducted to furnish return of income in respect of six assessment years immediately preceding the assessment year relevant to 14 ITA No.1077/M/2014 the previous year in which the search was conducted under section 132 of the Act or requisition was made under section 132A of the Act. Subsequently, the amendment was brought by Finance Act, 2008 and the circular No.1/2009 dated 27.3.2009 again reiterated that the provisions of section 153 of the Act came into operation where the search is conducted under section 132 of the Act or books of account or other documents or any assets are requisitioned under the provisions of section 132A. Thus the ld. AR submitted that the provisions of section 153A comes into operation only where search is conducted and panchanama is drawn up consequent to search. Accordingly, the ld.AR submitted that when no search is conducted and no panchanama is drawn which has exactly happened in the present case, the assessment as framed under section 153A was without jurisdiction , invalid and deserved to be quashed.

Finally, the ld. DR prayed before the Bench that in view of the foregoing facts the appeal of the assessee raising technical issue should be dismissed by upholding the order of the FAA.

“153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall— (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years [and for the relevant assessment year or years] referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made 17 153B. (1) Notwithstanding anything contained in section 153, the Assessing Officer shall make an order of assessment or reassessment,— (a) in respect of each assessment year falling within six assessment years referred to in clause (b) of sub-section (1) of section 153A, within a period of twenty-one months from the end of the financial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed; (b) in respect of the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A, within a period of twenty-one months from the end of the financial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed :

(2) The authorisation referred to in clause (a) and clause (b) of sub-section (1) shall be deemed to have been executed,— (a) in the case of search, on the conclusion of search as recorded in the last panchnama drawn in relation to any person in whose case the warrant of authorisation has been issued; or (b) in the case of requisition under section 132A, on the actual receipt of the books of account or other documents or assets by the Authorised Officer.

Section 132(1) 132. (1) Where the Principal Director General or Director General or Principal Director or Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or Additional Director or Additional Commissioner or Joint Director or Joint Commissioner in consequence of information in his possession, has reason to believe that— (a) any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922 (11 of 1922), or under sub-section (1) of section 131 of this Act, or a notice under sub-section (4) of section 22 of the Indian Income-tax Act, 1922, or under sub-section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, or 18 (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be, disclosed for the purposes of the Indian Income-tax Act, 1922 (11 of 1922), or this Act (hereinafter in this section referred to as the undisclosed income or property),

“ Having held that the Tribunal cannot adjudicate upon the action of the DI/CIT under section 132(1), the next question is whether the Tribunal can examine the validity of any aspect of the search, i.e., from commencement till completion thereof. As already pointed out, the scheme of Chapter XIV- B requires the Assessing Officer to examine such aspects at three stages. The first stage is when the Assessing Officer has to issue notice under section 158BC. At this stage, he is required to satisfy himself that search has been initiated and carried out in the case of an assessee on whom such notice is to be served. In this connection he should see the authorization issued under section 132(1) and the panchanama prepared by the search party so as to satisfy himself that search was initiated and carried out in the case of the person on whom notice under section 158BC is to be served. In this connection he should see the authorization issued under section 132(1) and the panchanama prepared by the search party so as to satisfy himself that search was initiated and carried out in the case of the person on whom notice under section 158BC is to be served. The scope of examination is very limited, i.e., to ascertain that search operation was carried out in the case of such person and nothing more. If the Assessing Officer does not satisfy himself in this regard, then the assessee has the right to object to the validity of the assessment before the appellate authority on the ground that no search was initiated/conducted in the case of the appellant‖.

21 Thus, it is clear from the above judgment that search at the residence of the members of the appellant AOP would not fulfill the prescribed conditions to authorise search and the assessment order u/s 153A of the Act. It is therefore, very clear that where no panchanama has been drawn it can be presumed that no search has taken place to provide a legal basis for search and consequent assessment under section 153A of the Act and it would be totally illegal to assume that once the warrant has been signed there is initiation of proceedings u/s 153A of the Act. We, therefore are not in agreement with the conclusion drawn by the ld. CIT(A) that once the warrant issued in the name of the assessee and panchanama was drawn though the assessee’s name was not there in the panchnama, there was a proper execution of search justifying the action u/s 153A of the Act. In this case, we find that premises of the assessee are at Shraddha Residncy, Chandavarkar road, Borivali (W), Mumbai-400092. It is very surprising that according to the AO and FAA, the search was conducted on the assessee but the business premises of the assessee were spared from proceedings u/s 132(1) of the Act and even no incriminating material was found and seized from the premises of members of AOP assessee. We, therefore, are of the view that in view of the fact that there was no search conducted in the premises of the assessee and no punchnama was drawn up, the assessment proceedings u/s 153A of the Act were without valid jurisdiction. The case of the assessee also find support from the decision in the case of J M Trading 22 Corporation(supra) in which , the co-ordinate Bench of the Tribunal has held as under : ―Held :Section 132 provides the acts and deeds to be carried out by the search team at the premises of the assessee. The conduct of search includes acts, deeds and things enumerated under section 132 which an authorized officer is bound to carry out in order to complete the process of search. Search is an invasion of privacy of the assessee and all proceedings connected with search need to be carried out within the framework of the provisions of the Act. In case of non-compliance to the provisions of the Act by the Authorised Officer, such searches are invalid and illegal. In the instant case, no search was conducted against the assessee as the premises occupied by the assessee were not entered upon and searched by the Authorised Officer. Mere search of the premises owned by the assessee but rented to another concern does not by any implication prove the conduct of search against the assessee in view of the fact that the assessee was not available at the address searched upon. Mere mentioning of name in the panchanama does not lead to the conclusion that a valid search was conducted against the assessee. In the totality of circumstances, where no search had been conducted against the assessee there was no merit in the issue of notice under section 153A under which the jurisdictional area of operation is six assessment years immediately preceding the assessment year relevant to the previous year in which search was conducted. In case, no search is conducted against a person, the period of operation to which the provisions of section 153A would apply, cannot be determined and the invoking of provisions of section 153A is baseless. Though the provisions of section 158BC are not applicable to searches conducted after 31-5-2003, but the provisions of section 132 are continuing on the statute implying thereby that the provisions of section 153A are only applicable in case valid search is conducted against the assessee under section 132. Accordingly, the assessments made against the assessee under the provisions of section 143(3) read with section 153A were to be declared as null and void and the AO is directed to cancel the same‖ The appeal filed by the department before the jurisdictional High Court against the finding of the Tribunal was also dismissed by the Hon’ble Bombay High Court and the Special Leave Petition filed before the Hon’ble Apex Court stood 23 ITA No.1077/M/2014 dismissed which confirms the fact that the search has to be conducted in the business premises occupied by the assessee in order to initiate assessment proceedings u/s 153A of the Act. In the case of Dr. Mansukh Kanjibhai Shah V/s CIT (supra), The Tribunal  held as under :

―The warrant of authorization being issued in the name of the trust and the assessee, being the Managing Trustee of the Trust, but no search operation was conducted in premises of assessee and in the warrant of authorization The address of the place to be searched is not the address of the assessee-individual, no panchanama is also drawn in pursuance of the warrant of authorization in the case of the assessee, no documents were seized or impounded as such from the assessee, no documents were sized or impounded as such during he course of search from the assessee, he AO was not justified in initiating proceedings or assuming valid jurisdiction under section 153A against the assessee‖ In the case of Sarvamangalam Builders and Developers Pvt ltd (supra), it  has b been held by the Delhi Tribunal as under : ―Held : 13. In view of the above discussion, we hold that since no search was conducted on the premises of the assessee and the search conduced was conducted on a premises not owned by the assessee, the proceedings u/s 153A of the Act are invalid and bad in law, Accordingly, the orders of the authorities below are set aside quashed‖

is allowed.

11. In the second ground which is without prejudice to ground no 1, the assessee has challenged the confirmation of disallowance of claim of deduction of Rs.6,84,62,992/- under section 80IB(10) of the Income Tax Act on the ground that necessary approvals as required by the assessee u/s 80IB(10) of the Act were never obtained from the designated authorities by the assessee.

12. The brief facts and chronology of events are as under: a. In terms of agreement for development dated 11.10.1998 between M/s Shanti Builders and Shri Harshad Rai Poonamchand Doshi, development 26 ITA No.1077/M/2014 rights were transferred on certain plots in favour of late Mr. Doshi for a consideration of Rs. 30 Lacs. The plots under consideration bearing different survey numbers admeasured 2,19,287 sq. yards. b. In terms of development agreement dated 12/09/2000 entered into between M/s Shanti Star Builders and late Mr. Harshad Doshi, it was stated that the development granted to Mr. Doshi in terms of agreement of 1998 were not available for construction of projects for certain reasons. In its place the builder had made available the plot bearing survey No.131(old survey no.745) and 100 (old survey No.746) admeasuring 2,91,655 sq.feet for construction of building. This plot was located in sector

1. The builder thereafter executed a Power of Attorney in favour of Mr. Harshad P Doshi to enable him to obtain various permissions from government department for purposes of construction of residential project. c. Another Power of Attorney was executed in favour of Mr. Harshad P Doshi and his wife Madhuben Doshi by the landlords of the plot of land of which Mls Shanti Star Builder were the developers. Mr. Harshad Doshi had acquired development rights from M/s Shanti Star Builders. d. In April 2006, a Joint Venture was created cornpnsmg of Mr. Harshad Doshi, Mr.Chandrakant Doshi & Mr. Hemal Doshi to execute the project as Mr. Harshad Doshi who had acquired the development rights was 27 handicapped and was not in a position to move about and attend the affairs of construction and co-ordination with various departments by himself. The assessee along with Mls Shanti Star Builders has applied for sanction of construction plan as per the details furnished before the Commissioner, Bhayander Municipal Corporation and the commencement certificate was granted accepting assessee's request. e. The appellant had constructed a housing project on the plot of land where the approvals are received and have completed the project as per the specifications and have received Occupancy Certificate for the said project. The same was also certified by the Architects namely M/s Avinash Mhatre & Associates.

13 The ld AO rejected the appellant claim u/s 80IB(10) by citing the followings reasons:- a. The assessee did not receive any legal sanction from the local authority and the project was not started legally. It has been stated by the AO that firstly the commencement certificate dated 27.01.06 was in the name of "Shanti Star Builders and Others" and secondly the commencement certificate was applied on 04.01.06 and on the date of its issue the appellant AOP was not in existence. c. Shree Harshad P. Doshi member of AOP acquired the right of development through the power of attorney and he was not exclusive owner of land on which the project was developed. The claim of approval on the basis of certificate from local authority cannot be accepted. d. In response to inquiry letter issued, M/s Shanti Star Developers had accepted that certain development right were transferred in sector no.1 vide agreement dated 12.09.2000 to Mr. Harshad Doshi however as per the AO there was however no transfer of ownership of land. e. The completion certificate dated 01.10.2007 did not mention the name of the assessee or its AOP members. f. As per the AO M/s Shanti Star Developers was eligible for claiming deduction U/S 80IB(10) of the Act but they had not preferred such claim. g. In the Commencement Certificate dated 27.01.2006 it was mentioned in para 4 that the plot of land cannot be sub divided without the prior approval of Municipal Corporation. The documents on record did not evidence any approval granted by Municipal Corporation to the appellant. h. The Commencement Certificate refers to approval of original plan in Nov 97. Accordingly the claim of the appellant disqualified as the benefit was available only for those projects which commenced construction after 01.10.98 .

―a) the housing project should be approved before 31.03.2008 by a local authority; b). the construction of the project should commence after 01.10.1998; c). the construction should be completed before 31.03.2008 where the approval was received before 01.04.2004 and within 4 years from the end of the financial year in which the housing project is approved by the local authority on or after 01.04.2004 and before 31st Day of March, 2005; d). where the housing project is approved on or after 15t day of April, 2005 the project should be completed within 5 years from the end of the financial year in which the housing project is approved; e). the project should be on a plot of land having minimum area of 1 acre; f). the residential unit in the project has a maximum built area of 1000 square feet where the residential unit is situated in Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; g). the built up area of the shops and other commercial establishment included in the housing project does not exceed the prescribed percentage or the prescribed limit of the built up area.‖ The project under consideration was approved on 27.1.2006 and the project was completed as per the occupancy certificate issued on 1.10.2007. The total area constructed and completed of building was 12439.70 Square mtr. which is equivalent to 133901 sq.ft which is more than 1 acre and the built up area of each completed flat in the said project was not more than 1000 sq. ft. The above facts have been confirmed by M/s Avinash Mhatre & Associates , architect by issuing the certificate to this effect. In our opinion the having considered the facts of the case of the assessee in the light of the provisions of the act and ratio laid in the various decisions relied by the ld AR we hold the assessee has satisfied all the conditions of section 80(IB)(10) of the Act as developer and is entitled to deduction under the said section while coming to this conclusion, we 34 extract relevant observations of the Ahmedabad Bench of the Tribunal in the case of Radhe Developers and others (supra) as under : "A bare reading of the provision ofs.80-IB (l 0), as they stood in the year under consideration, shows that the requirements for claiming deduction for housing project are that (i) there must be an undertaking developing and building housing project (U) such housing project is approved by local the authority (iii) the development and construction of housing project has commenced on or after J day of October, 1998; (iv) the housing project is on a size of a plot of land which has minimum area of one acre; and (v) the residential unit developed and built has a built up area of 1,000 sq. ft . if it is situated in Delhi and Mumbai or within 25 kms of municipal limit of these cities and J,500 sq. ft. at any other places. There is no other condition, which is to be complied by an assessee for claiming deduction on profits of the housing project. The contention of the Revenue authorities that to claim deduction under s. 80IB(lO), there is a condition precedent that the assessee must be owner of the land on which housing project is constructed has no face. There is no such condition as appearing in the provisions of the section. It might be true that the land belongs to the person who has entered into an agreement with the assessee to develop and build housing project but on a perusal of the agreement it is evident that the development and building work has been carried out by the assessee in pursuance of a tripartite agreement and it is not by the landowners. Therefore, the mere fact that the Landlord and the undertaking developing and building housing project, are two different entities would not make any difference. The deduction would be eligible to the person who is developing and building housing project and not to mere owner thereof."

The facts of the case of the assessee are squarely covered by the ratio laid down in the above decisiuon. We , therefore ,respectfully following the above decision of the Tribunal, we allow this ground of appeal. Therefore, on this issue also the assessee succeeds.