ASIANET NEWS NETWORK P.LTD, MUMBAI V. ACIT 16(1), MUMBAI

CO 72/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2390 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 21-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATISH C HANDRA RAJA RE
• Keywords: Retrospective amendment; Difference of opinion; TDS
• Section: 6; 143(3); 40(a)(ia); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6787/MUM/2016 ASSESSMENT YEAR: 2010 - 11 ACIT - 16(1), ROOM NO. 439, AAYAKAR BHAVAN, M.K. MARG, MUMBAI - 400020. VS. M/S ASIANET NEWS NETWORK P. LTD. 2 ND FLOOR, B WING, JAY CHAMBERS SERVICE ROAD, VILE PARLE (E), MUMBAI - 400057. PAN NO. AAHCA3961A APPELLANT RESPONDENT C.O. NO. 72/MUM/2018 (ITA NO. 6787/MUM/2016) ASSESSMENT YEAR: 2010 - 11 M/S ASIANET NEWS NETWORK P. LTD. 2 ND FLOOR, B WING, JAY CHAMBERS SERVICE ROAD, VILE PARLE (E), MUMBAI - 400057. VS. ACIT - 16(1), ROOM NO. 439, AAYAKARBHAVAN, M.K. MARG, MUMBAI - 400020. PAN NO. AAHCA3961A APPELLANT RESPONDENT ITA NO. 6786/MUM/2016 ASSESSMENT YEAR: 2011 - 12 ACIT - 16(1), ROOM NO. 439, AAYAKARBHAVAN, M.K. MARG, MUMBAI - 400020. VS. M/S ASIANET NEWS NETWORK P. LTD. 2 ND FLOOR, B WING, JAY CHAMBERS SERVICE ROAD, VILE PARLE (E), MUMBAI - 400057. PAN NO. AAHCA3961A APPELLANT RESPONDENT ASIANET NEWS NETWORKS ITA NOS. 6787 & 6786/MUM/2016 & C.O. NO. 72 & 73/M/2018 2 C.O. NO. 73/MUM/2018 ITA NO. 6786/MUM/2016 ASSESSMENT YEAR: 2011 - 12 M/S ASIANET NEWS NETWORK P. LTD. 2 ND FLOOR, B WING, JAY CHAMBERS SERVICE ROAD, VILE PARLE (E), MUMBAI - 400057. VS. ACIT - 16(1), ROOM NO. 439, AAYAKARBHAVAN, M.K. MARG, MUMBAI - 400020. PAN NO. AAHCA3961A APPELLANT RESPONDENT ASSESSEE BY : MR. M.P. LOHIA, AR REVENUE BY : MR. SATISH C HANDRA RAJA RE , DR DATE OF HEARING : 14/12/2018 DATE OF PRONOUNCEMENT : 11/03/2019 ORDER PER N.K. PRADHAN, AM THE CAPTIONED APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 4, MUMBAI [IN SHORT CIT(A) ] AND ARISE OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT 1961 (THE ACT). THE CROSS - OBJEC TIONS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE ASSESSING OFFICER (AO). AS COMMON ISSUES ARE INVOLVED, WE ARE PROCEEDING TO DISPOSE THEM OFF THROUGH A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. WE BEGIN WITH THE AY 2010 - 11. 2. THE G ROUNDS OF APPEAL FILED BY THE REVENUE READ AS UNDER: 1. WHETHER ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING TO DELETE THE DISALLOWANCE U/S. 40(A)(IA) R.W. S 194J IN RESPECT OF 'CARRIAGE FEES/CHANNEL PLACEMENT FEES' AND FAILING TO ASIANET NEWS NETWORKS ITA NOS. 6787 & 6786/MUM/2016 & C.O. NO. 72 & 73/M/2018 3 APPRECIATE THAT THE PAYMENTS MADE FOR USE/RIGHT TO USE OF 'PROCESS ARE 'ROYALTY AS PER EXPLANATION 6 TO SECTION 9(1)(VI) HENCE SUC H PAYMENTS ARE COVERED U/S 194J OF THE INCOME - TAX ACT, 1961, 2. WHETHER ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING TO DELETE THE DISALLOWANCE U/S.40(A)(IA) R.W. S 194J OF 'CARRIAGE FEES/CHANNEL PLACEMENT FEES', WHEREAS THE JURISDICTION AL ITAT, MUMBAI 'L' BE NCH, IN ITS ORDER DATED 28.03.2014 IN THE CASE OF ADIT - (IT) - 2(2), MUMBAI V S. VIACOM 18 MEDIA PVT.LTD. HAS CONFIRMED THAT THE PAYMENTS MADE FOR USE/RIGHT TO USE OF 'PROCESS' ARE 'ROYALTY' IN TERMS OF THE INCOME - TAX ACT, 1961. 3. WHETHER ON THE FACTS, IN THE CI RCUMSTANCES OF THE CASE AND AS PER LAW, THE LD. CIT(A) HAS ERRED IN RELYING ON THE ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS PRASAR BHARTI (292 ITR 580) WITHOUT REALIZING THAT THE SAID DECISION APPLIES TO AN ENTITY MAKING PAYMENTS TO OUTSIDE PRODUCERS FOR MAKING CERTAIN PROGRAMS FOR IT WHEREAS IN THE INSTANT CASE THE PAYMENT WAS MADE BY THE ASSESSEE WHO IS A BROADCASTER TO VARIOUS MSOS OR CABLE OPERATORS FOR PLACING ITS CHANNEL ON A PARTICULAR FREQUENCY/BANDWIDTH. 4. WHETHER ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING TO DELETE THE DISALLOWANCE U/S. 40(A)(IA) PLACING RELIANCE ON THE DECISION OF CALCUTTA HIGH COURT DATED 10.12.2012 IN CIT VS S.K. TEKRIWAL [2014] WITHOUT APPRECIATING THAT THE HON'BLE KERALA HIGH COURT IN ITS JUDGMENT DATED 20.07.20 15 IN THE CASE OF CIT - 1, KOCHI V S PVS MEMORIAL HOSPITAL LTD. [2015] 60 TAXMANN.COM 69 (KERALA) HAS DECIDED THE ISSUE IN FAVOUR OF THE DEPARTMENT AFTER DISCUSSING IN DETAIL THE JUDGMENT IN THE CASE OF CIT VS S.K.TEKRIWAL (SUPRA). 3. BRIEFLY STATED, THE FACTS ARE THAT THE ASSESSEE, AN INDIAN COMPANY, IS ENGAGED INTER ALIA IN THE BUSINESS OF BROADCASTING OF CURRENT AFFAIRS AND NEWS CHANNELS, BEING ASIANET NEWS CHANNEL IN MALAYALAM AND SUVARNA NEWS CHANNEL IN KANNADA. DURING THE AY 2010 - 11, THE AO ASIANET NEWS NETWORKS ITA NOS. 6787 & 6786/MUM/2016 & C.O. NO. 72 & 73/M/2018 4 PASSED AN ORDER U/S 143(3) OF THE ACT BY MAKING ADJUSTMENT ON ACCOUNT, INTER ALIA , DISALLOWANCE U/S 40(A)(IA) IN RESPECT OF CHANNEL PLACEMENT FEES AMOUNTING TO RS.2,62,03,173/ - . THE AO DISALLOWED CH ANNEL PLACEMENT FEES U/S 40(A)(IA) TREATING IT AS PROCESS ROYALTY UNDER EXPLANATION 6 TO SECTION 9(1)(VI), WHICH IS INTRODUCED IN THE ACT FROM 01.04.2012. FURTHER, THE AO HELD THAT DISALLOWANCE U/S 40(A)(IA) IS APPLICABLE IN CASE OF SHORT DEDUCTION OF TAX. 4. AGGRIEVED BY THE AFORESAID ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHO ADJUDICATED THE ISSUE PERTAINING TO DISALLOWANCE OF CHANNEL PLACEMENT FEES IN FAVOUR OF THE ASSESSEE. THE LD. CIT(A) FOLLOWED THE DECISION IN THE CASE OF JAGRAN PRAKASHAN 345 ITR 288 (ALL.) AND THE CBDT CIRCULAR NO. 05/2016 DATED 29.02.2016 FOR THE PROPOSITION THAT THE DISCOUNT GRANTED BY THE ASSESSEE TO THE ADVERTISEMENT AGENCY IS ON ACCOUNT OF THE BULK BUSINESS THAT THE ADVERTISEMENT AGENCY GIVES TO THE TELEVISI ON CHANNEL AND NOT FOR ANY SERVICES THAT IS RENDERED TO THE ASSESSEE BY THE ADVERTISEMENT AGENCY AND THUS THE PROVISIONS OF SECTION 194H ARE NOT ATTRACTED. THE LD. CIT(A) FURTHER HELD THAT WHERE TAX HAS BEEN DEDUCTED AT SOURCE UNDER A PARTICULAR SECTI ON AN D IN THE OPINION OF THE AO , TAX OUGHT TO HAVE BEEN DEDUCTED UNDER A DIFFERENT SECTION, NO DISALLOWANCE ARISES U/S 40(A)(IA) IN VIEW OF THE DECISION IN CIT V. S.K. TEKRIWAL 361 ITR 472 (CAL). ALSO THE LD. CIT(A) OBSERVED THAT PAYMENTS MADE TOWARDS PROGRAMME S PRODUCED FOR BROADCASTING FALL WITHIN THE EXPRESSION WORK AS DEFINED IN EXPLANATION TO SECTION 194C AND IN ASSESSEES OWN CASE, THE TRIBUNAL HAS HELD THAT THE TAX HAS BEEN CORRECTLY DEDUCTED AT SOURCE ON PAYMENTS TO CABLE OPERATORS U/S 194C OF THE ACT. EVEN ON MERITS, THE LD. CIT(A) ASIANET NEWS NETWORKS ITA NOS. 6787 & 6786/MUM/2016 & C.O. NO. 72 & 73/M/2018 5 HELD THAT THE ASSESSEE HAS CORRECTLY DEDUCTED AT SOURCE ON PAYMENTS MADE BOTH FOR PRODUCTION PROGRAMME AND ON CARRIAGE FEES U/S 194C OF THE ACT. WITH THESE OBSERVATIONS, THE LD. CIT(A) DELETED THE DISALLOWANCE OF RS.2,62,03, 173/ - MADE BY THE AO. 5. BEFORE US, THE LD. DR SUBMITS THAT THE ASSESSEE HAS PAID ADVERTISEMENT COMMISSION OF RS.2,60,76,529/ - AND HAS NOT MADE TDS ON THE SAME UNDER THE PROPER SECTION 194J AND THEREFORE, THE AO HAS RIGHTLY MADE THE DISALLOWANCE U/S 40(A)( IA) OF THE ACT. 6. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT THE AO HAS DISALLOWED CHANNEL PLACEMENT FEES U/S 40(A)(IA) TREATING IT AS PROCESS ROYALTY UNDER EXPLANATION 6 TO SECTION 9(1)(VI) WHICH IS INTRODUCED IN THE ACT FROM 01.04. 2012, WITHOUT APPRECIATING THAT THE YEAR UNDER CONSIDERATION IS AY 2010 - 11, WHEREIN ASSESSEE COULD NOT HAVE DEDUCTED TAX U/S 194J ON ACCOUNT OF SUBSEQUENT AMENDMENT IN DEFINITION OF ROYALTY BY EXPLANATION 6 TO SECTION 9(1)(VI) OF THE ACT. IN THIS REGARD, R ELIANCE IS PLACED BY HIM ON THE DECISION IN CIT V. M/S NGC NETWORKS (INDIA) PVT. LTD. (ITA NO. 397 OF 2015) (BOM - HC). FURTHER, IT IS STATED BY HIM THAT SECTION 40(A)(IA ) AND 194J REFERRED TO ROYALTY AS DEFINED IN EXPLANATION 2 AND NOT AS PER EXPLANATION 6 TO SECTION 9(1)(VI) AND HENCE, THE DISALLOWANCE BY THE AO TREATING CHANNEL PLACEMENT FEES AS PROCESS ROYALTY UNDER EXPLANATION 6 TO SECTION 9(1)(VI) IS NOT WARRANTED. I N THIS REGARD, AGAIN RELIANCE IS PLACED BY HIM ON THE DECISION IN NGC INDIA PVT. LTD . (SUPRA). ALSO, THE LD. COUNSEL SUBMITS THAT CHANNEL PLACEMENT FEES IS LIABLE TO WITHHOLDING U/S 194C OF THE ACT UNDER CLAUSE (IV) OF EXPLANATION TO SECTION 194C. IN THIS REGARD RELIANCE IS PLACED BY ASIANET NEWS NETWORKS ITA NOS. 6787 & 6786/MUM/2016 & C.O. NO. 72 & 73/M/2018 6 HIM ON THE DECISION IN UTV ENTERTAINMENT TELEVISION LTD . 399 ITR 443 (BOM). FURTHER, IT IS SUBMITTED BY HIM THAT DISALLOWANCE U/S 40(A)(IA) OF THE ACT IS NOT APPLIC ABLE IN CASE OF SHORT DEDUCTION. RELIANCE IS PLACED BY HIM ON T HE DECISION IN S.K. TEKRIWAL (SUPRA). FINALLY, THE LD. COUNSEL SUBMITS THAT VIDE GROUND NO. 4, THE DEPARTMENT HAS RELIED ON THE DECISION OF THE KERALA HIGH COURT IN THE CASE OF PVS MEMORIAL HOSPITAL LTD. 380 ITR 284. D IFFERING WITH THE VIEW TAKEN BY CALCUT TA HIGH COURT, T HE KERALA HIGH COURT HAS RULED AGAINST THE ASSESSEE AND HELD THAT DISALLOWANCE U/S 40(A)(IA) HAS TO BE MADE WHERE TDS HAS BEEN DEDUCTED UNDER WRONG PROVISIONS. IN THIS REGARD, IT IS SUBMITTED BY HIM THAT IN ABSENCE OF THE DECISION OF THE JU RISDICTION HIGH COURT AND CONTRARY VIEW OF DIFFERENT HIGH COURTS, THE VIEW WHICH IS IN FAVOUR OF THE ASSESSEE, SHALL BE FOLLOWED. FOR SUPPORT, RELIANCE IS PLACED BY HIM ON THE DECISION IN VEGETABLE PRODUCTS LTD . 88 ITR 192 ( SC). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. IN THE CASE OF M/S NGC NETWORKS (INDIA) PVT. LTD. (SUPRA), THE FOLLOWING QUESTIONS OF LAW WERE URGED BEFORE THE HIGH COURT BY THE REVENUE : (A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL IS JUSTIFIED IN HOLDING THAT THE DISALLOWANCE OF CHANNEL PLACEMENT FEE CANNOT BE MADE U/S 40(A)(IA) OF THE I.T. ACT WHEN THE TAX WAS DEDUCTED THEREON U/S 194C INSTEAD OF SEC. 194J OF THE I.T. ACT? (B) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL IS JUSTIFIED IN HOLDING THAT THE DISALLOWANCE OF CHANNEL PLACEMENT FEE IS NOT IN THE NATURE TO BE DEDUCTED U/S 194J OF THE I.T. ACT DESPITE EXPLANATION 6 THERETO INSERTED W. E.F. 01/06/1976? ASIANET NEWS NETWORKS ITA NOS. 6787 & 6786/MUM/2016 & C.O. NO. 72 & 73/M/2018 7 THE HONBLE HIGH COURT HELD THAT: (D) WE FIND THAT VIEW TAKEN BY THE IMPUGNED ORDER DATED 9 TH JULY OF THE TRIBUNAL THAT A PARTY CANNOT BE CALLED UPON TO PERFORM AN IMPOSSIBLE ACT I.E. TO COMPLY WITH A PROVISION NOT IN FORCE AT THE RELEVANT TIME BUT INTRODUCED LATER BY RETROSPECTIVE AMENDMENT. THIS IS IN ACCORD WITH THE VIEW TAKEN BY THIS COURT IN CIT V. CELLO PLAST (2012) 209 TAXMAN 617 - WHEREIN THIS COURT HAS APPLI ED THE LEGAL MAXIM LEX NON COGIT AD IMPOSSIBILIA (LAW DOES NOT COMPEL A MAN TO DO WHAT HE CANNOT POSSIBLY PERFORM. (E) IN THE PRESENT FACTS, THE AMENDMENT BY INTRODUCTION OF EXPLANATION - 6 TO SECTION 9(1)(VI) OF THE ACT TOOK PLACE IN THE YEAR 2012 WITH RET ROSPECTIVE EFFECT FROM 1976. THIS COULD NOT HAVE BEEN CONTEMPLATED BY THE RESPONDENT WHEN HE MADE THE PAYMENT WHICH WAS SUBJECT TO TAX DEDUCTION AT SOURCE U/S 194C OF THE ACT DURING THE SUBJECT ASSESSMENT YEAR, WOULD REQUIRE DEDUCTION U/S 194J OF THE ACT D UE TO SOME FUTURE AMENDMENT WITH RETROSPECTIVE EFFECT. (F) FURTHER, WE ALSO NOTICE THAT UNDER SECTION 40(A)(I) OF THE ACT, UNDER WHICH THE EXPENDITURE HAS BEEN DISALLOWED BY THE REVENUE, MEANING OF ROYALTY AS DEFINED THEREIN, IS THAT AS PROVIDED IN THE EX PLANATION 2 TO SECTION 9(1)(VI) OF THE ACT AND NOT EXPLANATION 6 TO SECTION 9(1)(VI) OF THE ACT. THUS, THE DISALLOWANCE OF EXPENDITURE U/S 40(A)(I) OF THE ACT CAN ONLY BE IF THE PAYMENT IS ROYALTY IN TERMS OF EXPLANATION 2 TO SECTION 9(1)(VI) OF THE ACT. UNDISPUTEDLY, THE PAYMENT MADE FOR CHANNEL PLACEMENT AS A FEE, IS NOT ROYALTY IN TERMS OF EXPLANATION 2 TO SECTION 9(1)(VI) OF THE ACT. THEREFORE, NO DISALLOWANCE OF EXPENDITURE U/S 40(A)(VI) OF THE ACT, C AN BE MADE IN THE PRESENT CASE. 7.1 THUS, IN TH E INSTANT CASE, THE ASSESSEE COULD NOT HAVE DEDUCTED TAX U/S 194J ON ACCOUNT OF SUBSEQUENT AMENDMENT IN DEFINITION OF ROYALTY BY EXPLANATION 6. CONSEQUENTLY, THE DISALLOWANCE BY THE AO BY TREATING ASIANET NEWS NETWORKS ITA NOS. 6787 & 6786/MUM/2016 & C.O. NO. 72 & 73/M/2018 8 CHANNEL PLACEMENT FEES AS PROCESS ROYALTY UNDER EXPLANATION 6 TO 9(1)(VI) IS NOT WARRANTED. 7.2 IN THE CASE OF UTV ENTERTAINMENT LTD . (SUPRA), IT IS HELD BY THE HONBLE BOMBAY HIGH COURT THAT IN CASE OF ASSESSEE CARRYING ON BUSINESS OF BROADCASTING OF TELEVISION CHANNELS, PAYMENTS OF PLACEMENT CHARGES AND SUBLETTING CHARGES WOULD FALL WITHIN THE MEANING OF WORK COVERED IN CLAUSE (IV) OF EXPLANATION TO SECTION 194C, AND THUS, ASSESSEE WAS JUSTIFIED IN DEDUCTING TAX AT SOURCE U/S 194C, WHILE MAKING SAID PAYMENTS. THUS CHANNEL PLACEMENT FEES, AS IN THE INSTANT CASE, IS LIABLE TO WITHHOLDING U/S 194C, TO BE MORE SPECIFIC UNDER CLAUSE (I V) OF EXPLANATION TO SECTION 194C. 7.3 FURTHER, IT IS HELD IN THE CASE OF S.K. TEKRIWAL (SUPRA), BY THE HONBLE CALCUTTA HIGH COURT THAT IF THERE IS ANY SHORTFALL DUE TO ANY DIFFERENCE OF OPINION AS TO TAXABILITY OF ANY ITEM OR NATURE OF PAYMENTS FALLING UNDER VARIOUS TDS PROVISIONS, THE ASSESSEE CAN BE DECLARED TO BE AN ASSESSEE IN DEFAULT U/S 201, BUT NO DISALLOWANCE CAN BE MADE BY INVOKING PROVISIONS OF SECTION 40(A)(IA). HOWEVER, THE HONBLE KERALA HIGH COURT HAS HELD THAT DISALLOWANCE U/S 40(A)(IA) IS TO BE MADE W H ERE TDS HAS BEEN MADE UNDER WRONG PROVISIONS. IN ABSENCE OF DECISION OF JURISDICTION HIGH COURT, IN VIEW OF CONTRARY DECISIONS, ONE HAS TO FOLLOW THE VIEW WHICH IS IN FAVOUR OF THE ASSESSEE AS LAID DOWN IN VEGETABLE PRODUCTS LTD . (SUPRA). ASIANET NEWS NETWORKS ITA NOS. 6787 & 6786/MUM/2016 & C.O. NO. 72 & 73/M/2018 9 8. IN VIEW OF THE ABOVE REASONS, WE UPHOLD THE ORDER OF THE LD. CIT(A) AND DISMISS THE APPEAL FILED BY THE R EVENUE. 9. THE CROSS - OBJECTION RAISED BY THE ASSESSEE IS AGAINST THE ORDER OF THE AO. AS WE HAVE DECIDED THE MATTER BY DISMISSING THE APPEAL FILE D BY THE R EVENUE, THE CROSS - OBJECTION FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. FACTS BEING IDENTICAL, OUR DECISION FOR THE AY 2010 - 11 APPLIES MUTATIS MUTANDIS TO AY 2011 - 12. 10. TO SUM UP, THE APPEALS FILED BY THE R EVENUE AND THE CROSS - OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/03/2019. SD/ - SD/ - ( C.N. PRASAD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 11/03/2019 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI