Smt. Jayaben Bholabhai Patel,, Surat v. The ACIT, Circle-9,, Surat

ITA 3710/AHD/2008 | 2005-2006
Pronouncement Date: 18-02-2010 | Result: Partly Allowed

Appeal Details

RSA Number 371020514 RSA 2008
Assessee PAN AFJPP2200D
Bench Ahmedabad
Appeal Number ITA 3710/AHD/2008
Duration Of Justice 1 year(s) 3 month(s) 3 day(s)
Appellant Smt. Jayaben Bholabhai Patel,, Surat
Respondent The ACIT, Circle-9,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 18-02-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 18-02-2010
Date Of Final Hearing 16-02-2010
Next Hearing Date 16-02-2010
Assessment Year 2005-2006
Appeal Filed On 14-11-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH JM & SHRI A.N. PAHUJA AM S.P. NO.05/AHD/2010 (IN I.T.A. NO.3710/AHD/2008 (ASSESSMENT YEAR 2005-06) & I.T.A. NO.3710/AHD/2008 (ASSESSMENT YEAR 2005-06) SMT. JAYABEN BHOLABHAI PATEL VS ACIT CIRCLE-9 PROP JAY IMPEX SURAT 12 MANINAGAR SOCIETY ASHWANIKUMAR ROAD SURAT [PAN : AFJPP2200D] (APPLICANT / APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RN VEPARI AR RESPONDENT BY: SHRI CK MISHRA DR O R D E R A.N. PAHUJA : THIS APPEAL BY THE ASSESSEE DIRECTED AGAINST AN OR DER DATED 22- 09-2008 OF THE LD. CIT(A)-V SURAT RAISES THE FOLL OWING GROUNDS: (I) REJECTION OF BOOK RESULT:- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING REJECTION OF BOOKS OF ACCOUNTS WHEN A LL COMPLETE RECORDS WHICH ASSESSEE CAN POSSIBLY MAINTAIN WERE MAINTAINED. (II) ESTIMATION OF GROSS PROFIT:- (1) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) ERRED IN CONFIRMING ESTIMATION OF GROSS PROFIT AND CONSEQUENT ADDITION TO THE INCOME WHEN THE REASONS FOR FALL IN GROSS PROFIT WERE FURNISHED AND NOT DEA LT WITH AND ALSO THE DISTINGUISHING FEATURE IN CASE OF THE APPELLANTS BUSINESS OF DEALING IN LOCAL SALES INST EAD OF EXPORT SALES WAS NOT CONSIDERED. SP NO.05 /AHD/2010 ITA NO.3710/AHD/2010 2 (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE GROSS PROFIT ESTIMATION AND CONSEQUENT ADDITION IS REQUIR ED TO BE DELETED. (III) MISCELLANEOUS:- (1) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) OUGHT TO HAVE DELETED INTEREST CHARGED U/S 234B OF THE ACT. (2) THE APPELLANT CRAVES LEAVE TO ADD ALTER OR VAR Y ANY OF THE GROUNDS OF APPEAL. 2. FACTS IN BRIEF AS PER RELEVANT ORDERS ARE THAT RETURN DECLARING INCOME OF RS.5 86 685/- FILED ON 22.10.2005 BY THE ASSESSEE A MANUFACTURER AND TRADER OF DIAMONDS AFTER BEING PROCESSED ON 15.1.2006 U/S 14 3(1) OF THE INCOME-TAX ACT 1961[HEREINAFTER REFERRED TO AS THE ACT] WAS TAKEN UP FOR SCRUTINY WITH THE ISSUE OF NOTICE U/S 143(2) OF THE ACT ON 20.10.2006 . DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER[AO IN SHORT] NOTICED THAT ASSESSEE HAD SHOWN GROSS PROFIT @ 1.20% ON A TURNOV ER OF RS.14 76 63 863/- WHILE THE GROSS PROFIT RATE IN THE EARLIER YEARS WAS AS UNDER: A.Y. TURNOVER (RS.) RATE OF G.P. 2002-03 6 07 77 662 1.47% 2003-04 6 98 50 804 1.38% 2004-05 5 13 19 065 1.38% 2005-06 14 76 63 863 1.20% SINCE GP RATE IN THE YEAR UNDER CONSIDERATION HAD D ECLINED THE AO ASKED THE ASSESSEE TO FURNISH REASONS FOR FALL IN GP RATE ALO NG WITH VALUATION OF OPENING/CLOSING STOCK BASIS OF ITS VALUATION AND Q UALITY WISE STOCK DETAILS ALONG WITH DETAILS OF FORWARD CONTRACT AND CONSEQUENT PRO FIT/LOSS AND QUANTITATIVE ANALYSIS OF FALL IN GROSS PROFIT BESIDES NAME AND A DDRESSES OF THE VENDORS FROM WHOM PURCHASE OF ROUGH DIAMONDS WAS MADE DETAILS O F REJECTION OF ROUGH DIAMOND ALONGWITH ASSORTMENT CHARGES PAID DETAILS OF QUALITY AND QUANTITY OF PRODUCTION OF POLISHED DIAMOND FROM THE ROUGH DIAMO NDS. AFTER PERUSING THE DETAILS FURNISHED BY THE ASSESSEE THE AO FOUND THA T THOUGH THE ASSESSEE MAINTAINED QUANTITATIVE INVENTORY OF CLOSING STOCK ASSESSEE FAILED TO FURNISH SP NO.05 /AHD/2010 ITA NO.3710/AHD/2010 3 QUALITATIVE DETAILS OF CLOSING STOCK AS ALSO QUALIT ATIVE DETAILS OF PRODUCTION AS WELL AS OPENING STOCK OF POLISHED DIAMONDS. IN THE ABSE NCE OF THESE DETAILS THE AO OBSERVED THAT IT WAS NOT POSSIBLE FOR HIM TO ASCERT AIN AS TO WHICH TYPE OF DIAMOND WAS PRODUCED FROM A PARTICULAR LOT NOR THE ASSESSEE COULD ESTABLISH LOT TO LOT CORRELATION AND THEREFORE THE VALUATION OF STOCK W AS NOT VERIFIABLE WHICH ULTIMATELY RESULTED IN FALL IN GROSS PROFIT. AFTER ELABORATELY ANALYZING THE PROCESS OF MANUFACTURING DIAMONDS FROM THE IMPORTED ROUGH D IAMONDS AND PRODUCT VALUATION IN DIAMOND INDUSTRY THE AO FURTHER OBSER VED THAT PRICE OF POLISHED DIAMONDS DEPENDED UPON 4CS I.E CUT COLOUR CLARI TY AND CARAT I.E THE QUALITY OF DIAMONDS PLAYED A MAJOR ROLE IN FIXING THE PRICE. A CCORDINGLY IN ORDER TO VERIFY THE PRODUCTION OF THE DIAMONDS BOTH IN TERMS OF QUA LITY AND QUANTITY THE AO VIDE LETTER DATED 16.11.2007 ASKED THE ASSESSEE TO FURNISH THE FOLLOWING DETAILS: (I) DIAMOND MOVEMENT REGISTER SHOWING RECEIPTS OF ROUGH DIAMOND THEIR ASSORTMENT THEIR DAY TO DAY MOVEMEN T TO JOB WORKERS LOT WISE AND QUALITYWISE AND RECEIPTS FROM JOB WORKERS OF ABOVE DIAMOND ON BASIS OF ABOVE LOT AND QUANTITY REJECTION OF ROUGH DIAMOND YIELD OF EACH LOT; (II) ROUGH DIAMOND MOVEMENT REGISTER OF EACH PROCES S I.E. GHAT TALIA PEHAL MATHALA AND DORIMARU AND PAYMENT MADE FOR EACH OF THESE PROCESS TO VARIOUS WORKERS FACTORY W ISE AND LABOUR REGISTER; (III) ANY FORWARD TRANSACTIONS ENTERED FOR PURCHASE / SALE OF FOREIGN CURRENCY; AS ALSO NECESSARY DETAILS / EVIDENCES TO JUSTIFY I TS CLAIM BESIDES THE INVENTORY OF BOTH OPENING AND CLOSING STOCK TAKEN AND CERTIFIED BY THE MANAGEMENT AS ON 31.3.2005 ALONGWITH DOCUMENTARY EVIDENCES IN SUPPOR T OF BASIS AND PROCESS OF VALUATION AND INFORM AS TO WHETHER SEPARATE RECORDS OF POLISHED DIAMONDS SHOWING THEIR QUALITY (I.E. VARIETY) AND QUANTITY W ISE PRODUCE AND SALES THEREOF WERE MAINTAINED AND IF MAINTAINED TO PRODUCE THEM FOR EXAMINATION. ON PERUSAL OF DETAILS FURNISHED BY THE ASSESSEE THE AO ACCOR DINGLY OBSERVED THAT: SP NO.05 /AHD/2010 ITA NO.3710/AHD/2010 4 (A) THERE WAS GRADUAL FALL IN GROSS PROFIT RATE YE AR AFTER YEAR AS COMPARED TO EARLIER YEARS; (B) THE ASSESSEE HAD FAILED TO SUBMIT THE BASIS AND PROCESS OF VALUATION OF CLOSING STOCK ALONG WITH DOCUMENTARY EVIDENCES WITH RESPECT TO QUALITY AND QUANTITY OF RAW GOODS AND FINISHED GOODS CERTIFICA TE BY THE PARTNERS / MANAGEMENT TO THIS EFFECT AND DETAILED INVENTORY T AKEN ON 31.3.2004 AND 31.3.2005 BY PARTNERS OF THE FIRM; (C) NO PROOF IN SUPPORT OF WAGES PAID TO KARIGARS LIKE LABOUR PAYMENT REGISTER OR LABOUR ATTENDANCE REGISTER HAD BEEN SUBMITTED FO R VERIFICATION NOR THE BASIS OF PAYMENT TO THE WORKERS / KARIGARS @ RS 341/- PER CA RAT . (D) THE ASSESSEE DID NOT SUBMIT THE BASIS FOR NEGO TIATION / PAYMENT OF LABOUR CHARGES AT RS.341/- PER CARAT WHICH WAS HIGHER COM PARED TO MARKET RATE AS M/S JODHANI EXPORT SURAT CLAIMED JOB WORK CHARGES AT RS.265/- PER CARAT AND M/S D NITIN & CO CLAIMED JOB WORK CHARGES ON AN AVERAG E RATE OF RS.190/- PER CARAT. (E) EVEN THE IDENTITY OF STOCK OF ROUGH DIAMONDS GI VEN TO KARIGARS WAS NOT VERIFIABLE VIS--VIS PURCHASE LOT NEITHER THE YIEL D THEREFROM THE ASSESSEE HAVING NOT SUBMITTED THE MOVEMENT OF ROUGH DIAMONDS FROM T HE STAGE OF THEIR ASSORTMENT AND THEN MOVEMENT OF MAKEABLE ROUGH DIAM OND TO DIFFERENT KARGIARS FOR UNDERGOING THE PROCESS OF POLISHING LIKE TABLE GHAT TABLE TALIA ETC. AND YIELD THEREFROM. 2.1 IN VIEW OF THE FOREGOING ESPECIALLY WHEN THE A SSESSEE FAILED TO FURNISH QUALITY WISE DETAILS OF POLISHED DIAMONDS NOR SUBST ANTIATED ITS CLAIM OF RS.341/- PER CARAT TOWARDS LABOUR EXPENDITURE AND DID NOT PR ODUCE PIECE WISE DETAILS OF PRODUCTION VIS--VIS CLAIM OF LABOUR EXPENSES RELY ING UPON DECISIONS IN THE CASE OF BRITISH PAINTS INDIA PVT LTD 188 ITR 44 (SC) AND DCIT VS SAMIR DIAMONDS EXPORT PVT LTD 71 ITD 75 (MUM) THE AO REJECTED BOO K RESULTS HAVING RECOURSE TO PROVISIONS OF SEC. 145 OF THE ACT. AFTER COMPARING THE TRADING RESULTS OF THE ASSESSEE VIS-A-VIS RESULTS OF THE FOLLOWING ASSESS EES: SP NO.05 /AHD/2010 ITA NO.3710/AHD/2010 5 SR.NO NAME OF THE ASSESSEE TURNOVER (IN CRORES) GROSS PROFIT 1. M/S R. VIPUL & CO 8.24 9.1% 2. M/S SEJAL EXPORTS 23.62 7.11% 3. M/S GEM STAR CO. 18.42 7.85% 4. M/S PARVATI GEMS(SISTER CONCERN) 8.13 5.50% THE AO ENHANCED GP RATE BY 4% RESULTING IN AN ADDIT ION OF RS.59 06 555/- . 3. ON APPEAL IN THE ABSENCE OF QUALITY WISE DETAI LS OF DIAMONDS THE LD CIT(A) CONCLUDED THAT QUALITY BEING INHERENTLY LINK ED TO THE BUSINESS OF DIAMONDS PLAYS A MAJOR ROLE IN FIXING THE PRICE O F DIAMONDS AND VALUATION OF STOCK. SINCE THE ASSESSEE ADMITTEDLY DID NOT FURNIS H THESE DETAILS NOR SUBSTANTIATED THE BASIS OF PAYMENT TO LABOUR AND DI D NOT PRODUCE PRIMARY RECORDS RELATING TO LABOUR PAYMENT AND LABOUR ATTENDANCE WH ILE LOTWISE PRODUCTION REMAINING UNVERIFIABLE THE LD. CIT(A) UPHELD THE REJECTION OF BOOKS OF ACCOUNT. AS REGARDS ESTIMATION OF GROSS PROFIT THE LD. CIT( A) CONCLUDED AS UNDER: ON PAGE 11 OF THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS PICKED UP 4 CASES WHERE THE TURNOVER HAS RANGED FROM RS.8.13 CRORES TO RS.23.62 CRORES. THE G.P. DISCLOSED VARI ES FROM 5.50 TO 9.1%. THE APPELLANTS TURNOVER IS RS.14 76 68 868/ -. THERE IS A TREND OF DECREASE IN G.P. AS TURNOVER GOES UP. THU S THE FAIR ESTIMATION OF G.P. IN THE PRESENT CASE WOULD BE BET WEEN 5.50% TO 9.1%. IT IS SEEN FROM THE TABLE THAT M/S. R. VIPUL & CO. HAS SHOWN A G.P. OF 9% ON A TURNOVER OF RS.8.24 CRORES WHILE GEM STAR CO. HAS SHOWN A G.P. RATE OF 7.85% ON A TURNOVER OF 18. 42%. BUT SINCE THE APPELLANTS TURNOVER IS 14.76 CRORE THE ASSESSING OFFICER SHOULD HAVE ESTIMATED BETWEEN 7.85% TO 9.1%. BUT A SSESSING OFFICER HAS ALSO QUOTED ANOTHER INSTANCE WHERE M/S PARVATI GEMS HAS SHOWN A G.P. OF 5.50% ON A TURNOVER OF 8.13%. I HAVE ALSO CAME ACROSS A CASE OF RUCH EXPORTS WHERE A G.P. OF 7.56% HAS BEEN SHOWN ON A TURNOVER OF RS.11.16 CRORES. BY AD OPTING ESTIMATE AT 5.20% IN APPELLANTS CASE AN ADDITION O F 4% HAS BEEN MADE WHICH TO MY MIND IS MOST REASONABLE. IDEALLY THE APPELLANT SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO SHOW CAUSE AS WHY THE ADDITION ON ACCOUNT OF COMPARATIVE G.P. RATES BE NO T BE MADE WHICH IN THIS CASE HAS NOT BEEN DONE. BUT SINCE A SSESSING OFFICER HAS TAKEN LOWER THAN THE MINIMUM G.P. RATES DISCLOS ED SP NO.05 /AHD/2010 ITA NO.3710/AHD/2010 6 BYMENTIONED PARTIES-THE GRIEVANCE DOES NOT SURVIVE EFFECTIVELY. EVEN ON MERIT THE GP DISLOSED BY THE APPELLANT @1.2 0% IS TOO LOW TO BE LEFT UNINTERFERED WITH AND REQUIRES UPWARD RA TIONALIZATION WHICH HAS BEEN DONE BY THE ASSESSING OFFICER MOST R EASONABLY. THE ASSESSING OFFICERS ACTION STANDS UPHELD. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE US AG AINST THE AFORESAID FINDINGS OF THE LD. CIT(A). WHILE CARRYING US THROUGH THE IMPUG NED ORDER THE LD. AR ON BEHALF OF THE ASSESSEE RELIED UPON HIS OWN ORDERS F OR THE PRECEDING ASSESSMENT YEARS AND SUBMITTED THAT THE AO DID NOT GIVE AN OP PORTUNITY TO THE ASSESSEE WHILE ENHANCING THE GROSS PROFIT BY 4% NOR CONFRONT ED THE COMPARABLE CASES. THE SAID CASES CHOSEN BY THE AO WERE OF EXPORTERS W HILE THE ASSESSEE WAS SELLING DIAMONDS IN THE LOCAL MARKET ONLY. INTER AL IA THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE ITAT AHMEDAB AD BENCH B IN THE CASE OF ITO VS M/S B SURESHKUMAR & CO IN ITA NO.2632/AHD/20 03 DATED 19-12-2007.ON THE OTHER HAND THE LD. DR WHILE SUPPORTING THE FI NDINGS OF THE LD. CIT(A) DID NOT THROW LIGHT AS TO WHETHER OR NOT COMPARABLE CASES C HOSEN BY THE AO WERE OF EXPORTERS OR LOCAL MANUFACTURERS AND TRADERS. 6. WE HAVE HEARD BOTH THE PARTIES GONE THROUGH TH E FACTS OF THE CASE AND CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. IT IS T RUE THAT THE ASSESSEE FURNISHED THE QUANTITATIVE PARTICULARS MAINTAINED BY IT BUT AS RIGHTLY POINTED OUT BY THE REVENUE IN DIAMOND TRADE IT IS MORE IMPORTANT TO F URNISH THE PARTICULARS RELATING TO QUALITY OF THE DIAMOND. AS CONCLUDED BY THE LD. CIT(A) AND UNDISPUTEDLY THESE WERE NOT FURNISHED BEFORE THE ASSESSING OFFICER OR THE LD. CIT(A). REJECTION OF BOOK RESULTS CANNOT OBVIOUSLY BE FOR THE SAME REASO NS IN ALL CASES WITHOUT REGARD TO THE NATURE OF THE BUSINESS GOODS DEALT W ITH ETC. IN THE CASE OF DIAMONDS IT IS WELL-KNOWN THAT IT IS A HIGH-VALUE ITEM AND MUCH DEPENDS ON CUT CARAT COLOUR AND CLARITY I.E THE QUALITY OF THE DI AMONDS. THE BEDROCK OF THE ASSESSING OFFICERS REASONING IS THAT THE QUALITY W ISE DETAILS WERE NOT GIVEN. THE LD. CIT(A) HAS GIVEN A CONCURRENT FINDING. IN THE L ETTERS DATED 6.11.2007 16.11.2007& 14-12-2007 THE ASSESSING OF FICER SPECIFICALLY ASKED THE ASSESSEE A QUERY RELATING TO QUALITY OF THE DIA MONDS AND THE BASIS OF SP NO.05 /AHD/2010 ITA NO.3710/AHD/2010 7 VALUATION OF OPENING/CLOSING STOCK. IN VIEW OF THE SPECIFIC QUERY RAISED BY THE ASSESSING OFFICER IT WAS THE DUTY OF THE ASSESSEE T O DEMONSTRATE IT WITH EVIDENCE ALSO LEADING EVIDENCE REGARDING THE QUALI TY OF THE DIAMONDS. IN THESE CIRCUMSTANCES WE ARE SATISFIED THAT THERE EXISTED SUFFICIENT REASONS FOR THE ASSESSING OFFICER TO REJECT THE BOOK RESULTS HAVIN G RECOURSE TO PROVISIONS OF SECTION 145(3) OF THE ACT NOTWITHSTANDING THE ACCE PTANCE OF THE SAME IN THE EARLIER YEARS. WE ARE IN AGREEMENT WITH THE LD. CI T(A) ON THIS ASPECT OF THE MATTER. THEREFORE GROUND NO.I(1) IS DISMISSED 7. AS REGARDS ESTIMATION OF PROFITS AFTER REJECTION OF BOOK RESULTS WE ARE OF THE OPINION THAT IT IS NOT OPEN TO THE AO TO MAKE A NY ADDITION ON ESTIMATE BASIS OR ON PURE GUESS WORK. THE LD. CIT(A) WHILE UPHOL DING THE FINDINGS OF THE AO REGARDING ESTIMATION OF PROFITS ON THE BASIS OF COM PABLE RESULTS IN THE CASE OF FEW OTHER ASSESSES INCLUDING A SISTER CONCERN OBSERVED THAT THE ASSESSEE SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO SHOWCAUSE BEFORE ADOPTING COMPARATIVE GP RATE . THE LD. DR APPEARING BEFORE US DID NOT OPPO SE THE SUBMISSIONS OF THE LD. AR THAT COMPARABLE CASES WERE OF EXPORTERS WHILE TH E ASSESSEE WAS SELLING DIAMONDS ONLY IN THE LOCAL MARKET. THOUGH THE LD. AR PLACED RELIANCE ON DECISION M/S B SURESHKUMAR & CO (SUPRA) BUT THE SA ID DECISION IS ALSO OF AN 100% EXPORTER OF POLISHED DIAMONDS. THUS RELIANCE ON THE SAID DECISION IS TOTALLY MISPLACED. IN THESE CIRCUMSTANCES ESPECIAL LY WHEN THE AO DID NOT CONFRONT THE COMPARABLE CASES CHOSEN BY HIM TO THE ASSESSEE BEFORE ADOPTING GP RATE OF 5.20% WE CONSIDER IT FAIR AND APPROPRI ATE TO SET ASIDE THE ORDER OF THE LD. CIT(A) ON THIS ASPECT AND RESTORE THE MATTE R TO THE FILE OF THE AO FOR DECIDING THE ISSUE RELATING TO APPLICATION OF GP RA TE AFRESH IN ACCORDANCE WITH LAW AFTER ALLOWING SUFFICIENT OPPORTUNITY TO THE A SSESSEE KEEPING IN MIND OUR AFORESAID OBSERVATIONS. WITH THESE DIRECTIONS GROU ND NOS II(1) &(2) IN THE APPEAL ARE DISPOSED OF. 8. GROUND NO. (III)(1) PERTAINS TO CHARGING OF INT EREST U/S 234B OF THE ACT. THE LEVY OF INTEREST U/S 234B OF THE ACT BEING MANDATO RY [COMMISSIONER OF INCOME TAX.VS ANJUM M. H. GHASWALA AND OTHERS 252 ITR 1(SC ) AFFIRMED BY HON'BLE SP NO.05 /AHD/2010 ITA NO.3710/AHD/2010 8 APEX COURT IN THE CASE OF CIT V. HINDUSTAN BULK CAR RIERS [2003] 259 ITR 449 (SC) AND IN THE CASE OF CIT V. SANT RAM MANGAT RAM JEWEL LERS [2003] 264 ITR 564 (SC) ] WHILE NO SUBMISSIONS HAVE BEEN MADE BEFORE US BY THE LD. AR ON BEHALF OF THE ASSESSEE THIS GROUND IS DISMISSED. HOWEVER THE AO MAY ALLOW CONSEQUENTIAL RELIEF IF ANY WHILE GIVING EFFECT T O THIS ORDER. 9. NO ADDITIONAL GROUND HAVING BEEN RAISED IN TER MS OF RESIDUARY GROUND NO. (III)(2) ACCORDINGLY THIS GROUND IS DISMISSED. 10. SINCE APPEAL OF THE ASSESSEE HAS BEEN DISPOSE D OF THERE IS NO REASON TO ACCEPT THE PLEA OF THE ASSESSEE FOR STAY OF DEMAND . 11. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED BUT FOR STATISTICAL PURPOSES WHILE STAY PETITION IS REJECTED. ORDER PRONOUNCED IN THE OPEN COUR ON 18TH FEBRUA RY 2010. SD/- SD/- (MAHAVIR SINGH) (A.N. PAHUJA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD DATED :18 TH FEBRUARY 2010 PK/- COPY TO: 1.THE ASSESSEE 2. ACIT CIRCLE-9 SURAT 3. CIT(A)-V SURAT 4 CIT-III SURAT BY ORDER 5. DR D BENCH DEPUTY REGISTRAR ITAT AHMEDABAD