ABS INDUSTRIAL VERIFICATION (INDIA) P. LTD, NAVI MUMBAI V. ITO 2(1)(1), MUMBAI

CO 45/MUM/2010

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8250 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-01-2013
• Appeal Filed By: Assessee
• Bench Allotted: L
• Next Hearing Date: 09-01-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 26-02-2010
• Court: TRIBUNAL
• Assessee Lawyers: P J PARDIWALLA
• Keywords: Business income; Transfer pricing; Double taxation relief; Advance ruling
• Section: 143(3); 37(1); 37

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES L MUMBAI , / BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER /AND , ! SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 4923/MUM/2009 ASSESSMENT YEAR 2006-07 I.T.O. 2(1)(1), AAYAKAR BHAVAN, ROOM NO. 561, 5 TH FLOOR, MUMBAI 400 020. VS. M/S. ABS INDUSTRIAL VERIFICATION INDIA PVT. LTD., 3 RD FLOOR, CITY ICE BUILDING, 298 PERIAN NARIMAN STREET, FORT, MUMBAI 400 001. PAN: AAACA 4632 R C.O. NO. 45/MUM/2010 ASSESSMENT YEAR 2006-07 M/S. ABS INDUSTRIAL VERIFICATION INDIA PVT. LTD., 3 RD FLOOR, CITY ICE BUILDING, 298 PERIAN NARIMAN STREET, FORT, MUMBAI 400 001. PAN: AAACA 4632 R VS. I.T.O. 2(1)(1), AAYAKAR BHAVAN, ROOM NO. 561, 5 TH FLOOR, MUMBAI 400 020. ( '# / APPELLANT ) ( $%'# / RESPONDENT ) REVENUE BY : MS. NEERAJA PRADHAN ASSESSEE BY : SHRI P.J. PARDIWALLA & '(! / DATE OF HEARING : 09-01-2013 )*+ & '(! / DATE OF PRONOUNCEMENT : 16-01-2013 / O R D E R PER RAJENDRA, AM ASSESSING OFFICER (AO) AS WELL AS THE ASSESSEE-COMP ANY HAS FILED APPEAL/CROSS-OBJECTION AGAINST THE ORDER DT. 16-06- 2009 OF THE CIT(A)-III, MUMBAI. ITA NO. 4923/M/2009 C.O. NO. 45/M/2010 M/S. ABS INDUSTRIAL VERIFICATION INDIA P. LTD 2 GROUNDS OF APPEAL FILED BY THE AO READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN ALLOWING RELIEF TO THE ASSESSEE TO THE EXTENT IMPUG NED IN THE GROUNDS ENUMERATED BELOW:- 1. THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.47,56,655/- BEING SURVEYOR FEE PAID TO ABS GROUP OF COMPANIES ON WHICH TDS WAS NOT DEDUCTE D FOR WHICH A.O. HAD RIGHTLY INVOKED THE PROVISIONS OF SEC. 40(A)(IA). 2.THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 44,61,705/- MADE BY THE A.O. BY DISALLOWING EXPENSES U/S.37(1) AS THE ASSESSEE COUL D NOT PROVE THE GENUINESS OF THE TRANSACTIONS. 3.THE LD. CIT (A) ERRED IN DELETING THE ADDITION OF RS. 23,73,681/- WHICH WAS SHOWN AS PAYABLE TO THE CREDITORS VIZ: ABS GROUP OF COMPANIE S TOWARDS INSPECTION SERVICES WHICH WERE NON VERIFIABLE AND UNCONFIRMED. 4. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO RESTORED . GROUNDS OF CROSS OBJECTIONS FILED BY THE ASSESSEE-C OMPANY READS AS UNDER: 1. IN THE EVENT THE STAND OF THE ASSESSING OFFICER (AO) OF DISALLOWING SURVEYOR FEES OF RS.4,756,655 PERTAINING TO ABS GROUP COMPANIES UNDE R SECTION 40(A)(I) (MENTIONED INCORRECTLY IN THE AO S ORDER AS UNDER SECTION 40( A)(IA)) IS UPHELD, THE RESPONDENTS SUBMIT THE FOLLOWING:- I)THE AO BE DIRECTED TO DELETE THE ADDITION OF AN A MOUNT OF RS.4,461,705 BEING SURVEYOR FEES PAID / PAYABLE TO ABS GROUP COMPANIES UNDER SECTION 37(1), SINCE THIS AMOUNT HAS ALREADY BEEN INCLUDED IN THE DISALLOWANCE MADE UNDER SECTION 40(A)(I) OF RS.4,75 6,655 (RS.4,461,705 + RS.294,950). II)THE AO BE DIRECTED TO DELETE THE ADDITION OF AN AMOUNT OF RS.2,373,681 PAYABLE TO ABS GROUP COMPANIES TOWARDS INSPECTION S ERVICES, UNDER SECTION 41(1), SINCE THIS AMOUNT HAS ALREADY BEEN INCLUDED IN THE DISALLOWANCE UNDER SECTION 40(A)(I) OF RS.4,756,655. THE RESPONDENTS PRAY THAT THE AO BE SUITABLY DIRECT ED IN THIS REGARD. 2. IN THE EVENT THE STAND OF THE AO OF DISALLOWING SURVEYOR FEES OF RS.4,461,705 PAID / PAYABLE TO ABS GROUP COMPANIES UNDER SECTION 37(1) IS UPHELD, THE AO BE DIRECTED TO DELETE THE ADDITION OF AN AMOUNT OF RS.2,373,681, PAYABLE TO ABS GROUP COMPANIES TOWARDS INSPECTION SERVICES UNDER SECTION 41(1), SINCE THIS AMOUNT HAS ALREADY BEEN INCLUDED IN THE DISALLOWANCE UNDER SECTION 3 7(1) OF RS.4,461,705. THE RESPONDENTS PRAY THAT THE AO BE SUITABLY DIRECT ED IN THIS REGARD. THE RESPONDENTS CRAVE LEAVE TO ADD, TO AMEND ALTER, VARY, OMIT OR SUBSTITUTE THE ABOVE GROUND OF CROSS OBJECTION OR ADD A NEW GROUND OR GR OUNDS AT ANY TIME BEFORE OR AT THE TIME OF HEARING, AS THEY MAY BE ADVISED. ITA NO. 4923/M/2009 C.O. NO. 45/M/2010 M/S. ABS INDUSTRIAL VERIFICATION INDIA P. LTD 3 2. ASSESSEE-COMPANY, ENGAGED IN THE BUSINESS OF INSPEC TION AND CERTIFICATION WORK, FILED ITS E-RETURN OF INCOME ON 01-11-2006 DE CLARING TOTAL INCOME AT RS. 7.45 LAKHS. ASSESSING OFFICER (AO) COMPLETED THE ASSES SMENT U/S. 143(3) OF THE INCOME- TAX ACT, 1961(ACT) ON 24-12-2008 DETERMINING TOTAL INCOME AT RS. 1.57 CRORES. 3. DURING THE ASSESSMENT PROCEEDINGS, AO FOUND THAT AS SESSEE HAD RECEIVED SURVEYOR FEE AMOUNTING TO RS. 83,27,343/-.HE FURTHE R FOUND THAT OUT OF THE SAID AMOUNT, TDS HAD BEEN DEDUCTED FOR RS. 35.7 LAKHS. S CRUTINY OF THE RECORDS REVEALED THAT THE BALANCE AMOUNT REPRESENTED REIMBURSEMENT O F EXPENSES TO SURVEYOR (RS. 2.94 LAKHS) AND SURVEYOR FEE PAID TO ABS GROUP OF COMPAN IES (RS. 44.61 LAKHS). HE FURTHER OBSERVED THAT THE ASSESSEE HAD PAID THE SUR VEYOR CHARGES/FEES IN FOREIGN CURRENCY AMOUNTING TO RS. 27.27 LAKHS. AO WAS OF T HE OPINION THAT PAYMENTS TO GROUP COMPANIES WAS COVERED UNDER PROVISIONS OF SEC TION 195 OF THE ACT. HE MADE A SPECIFIC QUERY TO THE ASSESSEE-COMPANY AS TO WHY TH E TDS WAS NOT DEDUCTED ON REIMBURSEMENT AND PAYMENTS MADE TO THE GROUP CONCER NS? AS PER THE AO, ASSESSEE DID NOT OFFER ANY EXPLANATION FOR RS. 47.56 LAKHS ( 44.61 LAKHS + 2.94 LAKHS). HE FURTHER DIRECTED THE ASSESSEE TO SUBMIT DETAILS OF TRANSACTIONS WITH GROUP/ASSOCIATE CONCERNS WITH JUSTIFICATION. AS PER THE AO, ASSESS EE DID NOT SUBMIT ANY DETAILS IN THIS REGARD OR ANY JUSTIFICATION/REASONABLENESS OF ANY P AYMENT MADE TO THE GROUP CONCERNS THAT WERE COVERED U/S. 40A(2)(B) OF THE ACT. AFTER CONSIDERING THE PARA 18 OF THE TAX AUDIT REPORT, HE HELD THAT ASSESSEE DID NOT FURNISH THE NAME AND ADDRESSES, AMOUNTS PAID/PAYABLE TO THE PERSONS COVERED UNDER THE PROVI SIONS OF SECTION 40A(2)(B) OF THE ACT, THAT THE ASSESSEE DID NOT FURNISH THE NATURE O F SERVICE AVAILED/BASIS OF DETERMINATION OF AMOUNT PAYABLE/REASONABLENESS OF A MOUNT PAID IN COMPARISON TO MARKET RATES OR ARMS LENGTH PRICES, THAT IT HAD NOT MAINTAINED THE RELEVANT REPORT FOR TRANSACTIONS PROVIDED U/S. 40A(2)(B) OF THE ACT, TH AT THE ASSESSEE HAD NOT PROVIDED ANY EVIDENCE TO PROVE THAT THE EXPENSES WERE RELATABLE TO CONDUCT THE BUSINESS WITHIN THE MEANING OF SECTION 37 OF THE ACT. SO THE ENTIRE EX PENDITURE; AMOUNTING TO RS. 44.61 LAKHS CLAIMED TO HAVE BEEN MADE TO ABS GROUP CONCER NS UNDER THE HEAD SURVEYOR FEE WAS DIS-ALLOWED BY HIM BY INVOKING THE PROVISI ONS OF SECTION 37(1) OF THE ACT. AO ALSO FOUND THAT IN THE BOOKS OF ACCOUNTS, ASSESS EE-COMPANY HAD SHOWN ABS GROUP OF COMPANIES AS CREDITORS FOR RS. 23.73 LAKHS TOWARDS INSPECTION SERVICES. HE HELD THAT DETAILS ABOUT OUTSTANDING CREDITORS WERE NOT VERIFIABLE. FINALLY, HE HELD THAT OUTSTANDING CREDIT OF RS. 23.73 LAKHS SHOULD BE TRE ATED AS INCOME OF THE ASSESSEE WITHIN THE MEANING OF SECTION 41(1) OF THE ACT. 3.1 ASSESSEE-COMPANY PREFERRED AN APPEAL BEFORE THE FI RST APPELLATE AUTHORITY (FAA). AFTER CONSIDERING THE SUBMISSIONS OF THE AS SESSEE, HE HELD THAT THE ISSUE OF DIS-ALLOWANCE/ADDITION MADE BY THE AO PERTAINING TO ABS GROUP OF COMPANIES SHOULD BE DEALT JOINTLY. HE HELD THAT AO HAD PICKE D UP ONE SET OF TRANSACTIONS FROM THREE DIFFERENT ANGLES AND HAD DEALT WITH THESE THR EE ITEMS IN THREE DIFFERENT FASHIONS, THAT HE TACKLED THE SAME ISSUE FROM THREE DIFFERENT MANNERS AND MADE THREE INDEPENDENT ADDITIONS, THAT THE ACTION OF THE AO WA S NOT JUSTIFIED AT ALL, THAT AO SHOULD HAVE MADE ONE ADDITION AND SHOULD HAVE GIVEN DIFFERENT REASONS FOR MAKING THE SAID ADDITION. WITH REGARD TO ADDITION MADE BY THE AO OF AN AMOUNT OF RS. 23.73 LAKHS, BEING THE AMOUNT APPEARING IN BALANCE SHEET AS LIABILITY AND PAYABLE TO ABS GROUP OF COMPANIES, HE HELD THAT AO WAS SILENT AS H OW PROVISIONS OF SECTION 41(1) OF THE ACT WERE APPLICABLE CONSIDERING THE FACTS OF THE CASE, THAT IT WAS NOT THE CASE OF ITA NO. 4923/M/2009 C.O. NO. 45/M/2010 M/S. ABS INDUSTRIAL VERIFICATION INDIA P. LTD 4 THE AO THAT LIABILITY HAS CEASED TO EXIST/THERE HAD BEEN ANY REMISSION OF LIABILITY, THAT AO HAD MADE NO EFFORTS TO VERIFY THE LIABILITY. FI NALLY, HE HELD THAT ADDITION MADE BY THE AO U/S. 41(1) WAS UN-CALLED FOR AND HENCE LIABL E TO BE DELETED. DEALING WITH THE ADDITION AMOUNTING TO RS. 44.61 LA KHS MADE BY THE AO U/S. 37(1) OF THE ACT, HE HELD THAT WHILE MAKING THE DIS -ALLOWANCE, AO HAD COMPLETELY MISSED THE FACT THAT THE AMOUNT IN CONSIDERATION WA S ALREADY DIS-ALLOWED FOR NON- DEDUCTION OF TDS, THAT AO HIMSELF HAD MENTIONED THE JUSTIFICATION OF THE EXPENSES INCURRED BY THE ASSESSEE-COMPANY, THAT AO HAD TOTAL LY MISSED THE LINKAGE BETWEEN THE EXPENSES INCURRED AND NATURE OF ACTIVITIES CARRIED OUT BY THE ASSESSEE-COMPANY. FINALLY, HE DELETED THE DIS-ALLOWANCE MADE BY THE A O U/S. 37(1) OF THE ACT. 3.2 WITH REGARD TO NON-DEDUCTING TDS AND INVOKING OF SE CTION 40(A)(IA) OF THE ACT, FAA HELD THAT ISSUE ON DEDUCTIBILITY OF TDS WA S NOT LOOKED INTO BY THE AO. AO HAD NOT GONE THROUGH THE PROVISIONS OF DOUBLE TAXAT ION AVOIDANCE AGREEMENT (DTAA) OF THE COUNTRIES CONCERNED. ANALYZING THE P ROVISIONS OF DTAA WITH UNITED STATES OF AMERICA, HE HELD THAT THE NATURE OF SERVI CES OBTAINED BY THE ASSESSEE- COMPANY FROM ABS GROUP OF COMPANIES WAS QUALITY ASS URANCE, THAT ABS GROUP OF COMPANIES WAS SURVEYING ON BEHALF OF THE APPELLANT - THE QUALITY/SPECIFICATION OF THE MACHINERY, THAT SUCH SERVICES WERE IN THE NATURE OF TECHNICAL SERVICES IN TERMS OF ARTICLE 12 OF THE INDO-US TREATY. RELYING UPON THE ORDER OF THE ITAT, DELHI DELIVERED IN THE CASE OF NQA QUALITY SYSTEMS REGIST RAR LTD., [2 SOT 249 (DELHI)] AND AUTHORITY FOR ADVANCE RULINGS (AAR) INTERTEK T ESTING SERVICES INDIA P. LTD., [307 ITR 418 (AAR)] HE HELD THAT THE CASE WAS SQUAR ELY APPLICABLE TO THE FACTS OF THE CASE UNDER CONSIDERATION. 3.3 FINALLY, HE HELD THAT AS FAR AS PAYMENTS MADE TO TH E GROUP COMPANIES IN USA WERE CONCERNED, THE APPELLANT WAS NOT OBLIZED TO DE DUCT TAX AT SOURCE. SIMILARLY, HE HELD THAT PAYMENT MADE TO SINGAPORE COMPANY WAS ALS O COVERED BY THE JUDGMENTS OF NQA QUALITY SYSTEMS REGISTRAR LTD., [2 SOT 249 (DEL HI)] AND INTERTEK TESTING SERVICES INDIA P. LTD., (SUPRA). DISCUSSING LAST S ET OF PAYMENTS MADE TO THE GROUP COMPANIES IN UAE, HE HELD THAT THE CLAUSE RELATED T O THE PROVISIONS OF TECHNICAL SERVICES WAS NOT EXISTANT IN THE DTA OF UAE, THAT T HE ENTIRE PAYMENT WOULD FALL UNDER THE HEAD BUSINESS INCOME, THAT APPELLANT WA S NOT OBLIGED TO DEDUCT TAX AT SOURCE. DECIDING THE GROUND NOS. 2, 3 & 4 IN FAVOU R OF THE ASSESSEE-COMPANY, HE DELETED THE ADDITION/DIS-ALLOWANCE MADE BY THE AO. 4. BEFORE US, DEPARTMENTAL REPRESENTATIVE (DR) ADMITTE D THAT AO HAS ADDED THE SAME AMOUNTS ON DIFFERENT ACCOUNTS AS MENTIONED BY THE FAA, THAT THERE WAS SOME MISTAKE ON THE PART OF THE AO TO ADD THE SAME AMOUN TS ON THREE ACCOUNTS. SHE SUBMITTED THAT FAA HAD NOT VERIFIED THE SERVICES RE NDERED BY THE GROUP OF COMPANIES, THAT FAA HAD DECIDED THE ISSUE RELYING UPON THE ORD ERS OF NQA QUALITY SYSTEMS REGISTRAR LTD., AND INTERTEK TESTING SERVICES INDIA P. LTD., (SUPRA), THAT THE FACTS OF THE CASE UNDER CONSIDERATION WERE DIFFERENT OF THOSE CA SES, THAT ASSESSEE HAD NOT PRODUCED ANY CONTRACT/AGREEMENT DURING ASSESSMENT PROCEEDING S. SHE REFERRED TO PG NOS. 5,7,9,26 & 27 OF PAPER BOOK AND SUBMITTED THAT THER E WAS MIS-MATCHING OF FIGURES, THAT ASSESSEE HAD TRAINED EMPLOYEES, THAT SERVICES WERE MADE AVAILABLE IN INDIA, THAT ITA NO. 4923/M/2009 C.O. NO. 45/M/2010 M/S. ABS INDUSTRIAL VERIFICATION INDIA P. LTD 5 ISSUE OF FEES FOR TECHNICAL SERVICES WAS NOT DECIDE D BY THE FAA, THAT REIMBURSEMENT ISSUE DISCUSSED BY THE AO WAS ALSO NOT ADJUDICATED UPON BY THE FAA. SHE RELIED UPON THE CASES OF INTERNATIONAL HOTEL LICENSING COM PANY [288 ITR 534 (AAR)], INTERTEK TESTING SERVICES INDIA P. LTD., [307 ITR 418 (AAR)], M/S. VAN OORD ACZ MARINE CONTRACTORS BV VS. THE ASST. DIRECTOR OF INC OME-TAX (ITA NO. 1733(MDS)/2011 AY.2003-04) [23 TAXMAN.COM 146 CHENN AI] AND DANFOSS INDUSTRIES P. LTD., [268 ITR 1 (AAR)]. IT WAS SUBMITTED THAT ASSESSEE-COMPANY HAD RECEIVED RS. 83.27 LAKHS AS SURVEYOR FEES DURING THE YEAR UNDER CONSIDERATION, THAT TAX WAS DEDUCTED AT SOURCES FOR RS. 35.70 LAKHS, NO TAX WAS DEDUCTED FOR RS. 47.56 LAKHS, OUT OF RS. 47.56 LAKHS, RS. 2.94 LAKHS WERE CLAIMED BY THE ASSESSEE AS REIMBURSEMENT AND BALANCE RS. 44.61 LAKHS WERE CLAIMED AS SURVEY OR FEE TO GROUP COMPANIES. 5. AUTHORISED REPRESENTATIVE (AR) ADMITTED THAT AO HAD NOT GIVEN ANY FINDING THAT INCOME WAS CHARGEABLE, THAT ASSESSEE WAS NOT M AKING AVAILABLE ANY DATA AND KNOWLEDGE ETC., THAT IT WAS GIVING EFFECT BACK TO THE CUSTOMERS, THAT PROVISIONS OF TDS WERE NOT APPLICABLE IN THE CASE OF THE COMPANY. HE SUPPORTED THE ORDER OF THE FAA. HE RELIED UPON THE CASES OF GUY CARPENTER & C O. LTD., [ 20 TAXMANN.COM 807 (DELHI] DELIVERED BY THE HIGH COURT OF DELHI, DE BE ERS INDIA MINERALS P. LTD., [21 TAXMANN.COM 214 (KAR)] DELIVERED BY HIGH COURT OF K ARNATAKA, NQA QUALITY SYSTEMS REGISTRAR LTD., [2 SOT 249 (DELHI)] (SUPRA ) AAR NOS. 886 TO 911, 913 TO 924, 927, 929 AND 930 OF 2010 IN THE CASE OF XYZ DE LIVERED BY AAR ON 19-03-2012 6. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING TH E MATERIAL AVAILABLE ON RECORD, WE ARE OF THE OPINION THAT THE MATER NEEDS FURTHER VERIFICATION. THE TAXABILITY OF THE AMOUNT-IN-QUESTION HAS NOT BEEN PROPERLY EXA MINED BY THE AO. FAA HAS ALSO NOT DEALT THE SUBJECT IN PROPER PERSPECTIVE. WE AGR EE WITH THE FAA THAT AO HAD MADE A MISTAKE IN ADDING THE SAME AMOUNT ON THREE DIFFER ENT ACCOUNTS WHILE DETERMINING THE TAX LIABILITY OF THE ASSESSEE. IN SUCH A CASE, IT WAS EXPECTED FROM THE FAA THAT HE WOULD EXAMINE THE CASE PROPERLY AND GIVE A FINDING BASED ON THE AVAILABLE MATERIAL AND AS PER LAW. WE FIND THAT HE HAS SOLELY RELIED UPON THE TWO CASES FOR DECIDING THE ISSUE WITHOUT REFERRING TO ANY OF THE PAPERS THAT W ERE FILED BEFORE HIM FOR THE FIRST TIME. HE DID NOT CALL FOR ANY REPORT FROM THE AO I N THIS REGARD. HE HAS NOWHERE MENTIONED AS HOW THE FACTS EMERGING OUT OF THE PAPE R FILED BEFORE HIM WERE IDENTICAL TO THE FACTS OF THE CASE RELIED UPON BY HIM FOR DEC IDING THE ISSUE. DURING THE HEARING BEFORE US, ASSESSEE WAS SPECIFICALLY DIRECTED TO FI LE A CERTIFICATE SUBMITTED WITH THE PAPER BOOK IN ACCORDANCE WITH THE PROVISIONS OF RUL E 18(3) OF THE ITAT RULES,1963. VIDE ITS LETTER DT. 10-01-2013, ASSESSEE CERTIFIED THAT ITEMS AT SR. NOS. 1 TO 4 (PG. NOS. 1 TO 136) WERE NOT SUBMITTED BEFORE THE AO. THE AO IN HIS ORDER HAS ALSO MENTIONED THAT DETAILS CALLED FOR WERE NOT SUPPLIED BY THE AS SESSEE. IN THESE CIRCUMSTANCE WE FIND FORCE IN THE ARGUMENTS OF THE DR THAT MATTER N EEDS FURTHER VERIFICATION. DR HAS RIGHTLY POINTED OUT THAT AT LEAST IN THE CASE OF IM PARTING OF TRAINING ISSUE OF MAKING AVAILABLE WAS NOT LOOKED INTO BY THE FAA. WE FIND T HAT WHILE DECIDING THE ISSUE, FAA HAS NOT DISCUSSED ANYTHING ABOUT THE OTHER PAPERS SUBMITTED BEFORE HIM, AS STATED EARLIER. SO IN THE INTEREST OF JUSTICE, WE FIND IT FIT TO REMIT BACK THE MATTER TO THE FILE OF THE FAA TO PASS A FRESH ADJUDICATION ORDER AFTER AF FORDING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. HE MAY CALL FOR A REMAND REPORT FROM THE AO, IF HE NEEDS THE SAME. GROUND NOS.1 TO 4 FILED BY THE AO ARE PA RTLY ALLOWED. APPEAL FILED BY THE AO STANDS PARTLY ALLOWED. ITA NO. 4923/M/2009 C.O. NO. 45/M/2010 M/S. ABS INDUSTRIAL VERIFICATION INDIA P. LTD 6 7. WITH REGARD TO CROSS-OBJECTION, WE DO NOT WANT TO P ASS ANY ORDER AS THE MATTER IS BEING SENT BACK TO THE FILE OF THE FAA. GROUND NOS.1 & 2 ARE DISPOSED-OFF FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JANUARY, 2013. & )*+ ! , - 16 TH JANUARY, 2013 * & . / SD/- SD/- ( / D.K. AGARWAL) ( / RAJENDRA) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER MUMBAI, DATE: 16 TH JANUARY, 2013 TNMM & && & $'0 $'0 $'0 $'0 0+' 0+' 0+' 0+' / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR L BENCH, ITAT, MUMBAI 6. GUARD FILE %0' $' //TRUE COPY// / BY ORDER, 1 11 1 / 2 2 2 2 DY./ASST. REGISTRAR , / ITAT, MUMBAI