DCIT, Bellary V. M/s Sri. Chakravarthy Enterprises, Bellary

ITA 1051/BANG/2012

• Counselvise Citation: 105121114 RSA 2012
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-06-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 17-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: K G ACHARYA
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER I.T.A. NO. 1051 /BANG/20 1 2 (ASSESSMENT YEAR : 2006-07) DY. COMMISSIONER OF INCOME TAX, CIRCLE-1, BELLARY. VS. SRI CHAKRAVARTHY ENTERPRISES, NO.117, WARD NO.VI, ANANTHAPUR RAOD, BELLARY. PAN AADFS 8980J APPELLANT RESPONDENT. APPELLANT BY : DR. P.V. PRADEEP KUMAR. RESPONDENT BY : SHRI K.G.ACHARYA. DATE OF HEARING : 9.7.2013. DATE OF PRONOUNCEMENT : 6.9.2013. O R D E R PER SHRI JASON P. BOAZ, A.M. : THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME TAX (APPEALS), HUBLI DT.30.5.2012 FOR ASSESS MENT YEAR 2009-10. 2. THE FACTS OF THE CASE, IN BRIEF, ARE AS UNDER : 2.1 THE ASSESSEE, ENGAGED IN THE BUSINESS OF RETAIL TRADE IN INDIA MADE FOREIGN LIQUOR (IMFL) FILED ITS RETURN OF INCOME FOR ASSESSMENT YE AR 2009-10 ON 16.9.2009 DECLARING INCOME OF RS.99,74,110. THE RETURN WAS PROCESSED U NDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS 'THE ACT') AND THE CASE WAS SUBSEQUENTLY TAKEN UP FOR SCRUTINY. IN THE COURSE OF ASSESSMENT PROCEEDI NGS, THE ASSESSING OFFICER OBSERVED THAT THE EXCISE LICENSES USED BY THE ASSESSEE FOR S ELLING IMFL WERE IN THE NAMES OF THE 2 ITA NO. 1051/BANG/12 PARTNERS AND NOT IN THE NAME OF THE ASSESSEE. IT W AS ALSO FOUND THAT THE ASSESSEE DID NOT POSSESS ANY PERMISSION GRANTED BY THE EXCISE DEPART MENT FOR CARRYING ON THE TRADE IN IMFL IN THE NAME OF THE PARTNERSHIP FIRM. IN TERMS OF THE KARNATAKA STATE EXCISE ACT, NO PERSON IS ALLOWED TO SELL IMFL WITHOUT OBTAINING LICENSE AND PERMIT FROM THE STATE EXCISE DEPARTMENT. SINCE THE ASSESSEE DID NOT POSS ESS THE LICENSE OR PERMIT IN ITS NAME AND WAS CARRYING OUT ITS BUSINESS OF DEALING IN I MFL ON THE BASIS OF LICENSES ISSUED IN THE NAMES OF THE PARTNERS, THE ASSESSING OFFICER TREATE D THE ASSESSEE AS AN AOP AND ASSESSED IT AS SUCH. IN THIS VIEW OF THE MATTER, T HE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY AN ORDER UNDER SECTION 143(3) OF THE ACT ON 23.12.2011 DETERMINING THE INCOME OF THE ASSESSEE AT RS.1,33,68,262 AS AGAINST RS.99,74,110 DECLARED IN THE NATURE OF INCOME DUE TO THE FOLLOWING ADDITIONS / DISALLOWANC ES : I) DISALLOWANCE OF INTEREST AND REMUNERATION PAID T O PARTNERS : RS.17,05,883. II) DISALLOWANCE ON ACCOUNT OF BOTTLE BREAKAGES : RS.15,93,348. III) DISALLOWANCE OF AUDIT FEE UNDER SECTION 40(A)( IA) : RS.95,225. 2.2.1 AGGRIEVED BY THE ORDER OF ASSESSMENT FOR ASSE SSMENT YEAR 2009-10, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT, HUBLI RAISING V ARIOUS GROUNDS. THE CONTENTIONS RAISED BY THE ASSESSEE BEFORE THE CIT(APPEALS) WERE AS UND ER : I) THE ASSESSEE WAS FORMED AS A PARTNERSHIP FIRM A ND IT COMMENCED ITS BUSINESS ACTIVITIES OF DEALING IN IMFL AFTER OBTAINING RETAIL VENDING L ICENSES IN THE NAMES OF ITS PARTNERS. THE LICENSES WERE EXPLOITED AS THEY BELONGED TO THE FIR M AND THE PROFIT EARNED / LOSS SUFFERED HAS BEEN REFLECTED IN THE HANDS OF THE FIRM. II) THIS POSITION HAS BEEN ACCEPTED BY THE DEPARTM ENT FOR MORE THAN 20 YEARS. 3 ITA NO. 1051/BANG/12 III) IN TERMS OF THE PROVISIONS OF SECTION 184 OF T HE ACT, ONCE A FIRM IS ASSESSED AS SUCH FOR ANY ASSESSMENT YEAR, IT SHALL BE ASSESSED IN TH E SAME CAPACITY FOR EVERY SUBSEQUENT YEAR IF THERE IS NO CHANGE IN THE CONSTITUTION OF T HE FIRM OR IN THE SHARE OF PARTNERS. IV) IN TERMS OF THE PROVISIONS OF SECTION 184(5) O F THE ACT, THE FIRM CAN BE ASSESSED AS AN AOP AND THE REMUNERATION AND INTEREST TO PARTNERS C AN BE DISALLOWED ONLY IF THERE IS A FAILURE ON THE PART OF THE FIRM, OF THE NATURE MEN TIONED IN SECTION 144 OF THE ACT. V) THERE ARE JUDICIAL DECISIONS WHEREIN IT IS HELD THAT A FIRM OPERATING ON PERMITS OF ITS PARTNERS SHOULD BE ASSESSED AS A FIRM AND NOT AS AN AOP. VI) THE DECISION OF THE HON'BLE JURISDICTIONAL HIG H COURT OF KARNATAKA IN THE CASE OF S.B. PANNALKAR & CO., JAMAKHANDI (ITA NO.24/2007 DT.2.11 .2010) REPORTED IN 344 ITR 232 (KAR) SQUARELY APPLIES TO THE ASSESSEE'S CASE. 2.2.2 THE LEARNED CIT(APPEALS) ON CONSIDERATION OF THE FACTS OF THE CASE AND THE JUDICIAL DECISIONS CITED HELD THAT THE STATUS OF THE ASSESSE E HAS TO BE CONSIDERED AND ASSESSED AS A FIRM AND NOT AN AOP AS HELD BY THE ASSESSING OFFI CER. THE OPERATIVE PORTION OF THE LEARNED CIT(APPEALS)S ORDER DT.30.5.2012 AT PAGE 8 IS AS UNDER : I HAVE GONE THROUGH THE FACTS OF THE CASE, CONTE NTS OF THE ASSESSMENT ORDER AND ASSESSEE'S WRITTEN SUBMISSIONS. THE HON'BLE JU RISDICTION HIGH COURT OF KARNATAKA IN THE CASE OF CIT (APPEALS) & ANOTHER V S. S.V. PANNALKAR & CO. (344 ITR 232), IT IS MENTIONED LEGALITY OF FIRM LIQUO R BUSINESS LICENSE OBTAINED IN NAME OF A PARTNER WITH INTENT SPECIFIED IN PARTNERS HIP DEED THAT IT WOULD BE A PARTNERSHIP ASSET BUSINESS AND FIRM LEGAL REMUN ERATION TO PARTNERS AND INTEREST ON CAPITAL DEDUCTIBLE INCOME TAX ACT 196 1. IN THE JUDGMENT THE HON'BLE HIGH COURT DISMISSING THE APPEAL, THAT IT WAS CLEAR THAT THERE WAS NO STATUTORY PROVISION PROHIBITING THE FORMATION OF A PARTNERSHIP BY A LICENSE HOLDER. THE LICENSEE DID NOT CONTRIBUTE THE LICENS E AS A CAPITAL CONTRIBUTION TO THE PARTNERSHIP ASSETS. ON THE CONTRARY, THE LICEN SE, FROM THE INCEPTION WAS TREATED AS A PARTNERSHIP ASSET BY EXPRESS WORDS IN THE PARTNERSHIP DEED. THE BUSINESS WAS LEGAL AND THE FIRM WAS ENTITLED TO THE DEDUCTION. 4 ITA NO. 1051/BANG/12 IN VIEW OF THE FACTS DISCUSSED ABOVE THE STATUS OF THE ASSESSEE HAS CONSIDERED AS A FIRM AND NOT AOP. ASSESSEE'S GROUN D APPEAL IS ALLOWED. ON THE OTHER TWO ISSUES RAISED; THE DISALLOWANCE OF RS.95,225 UNDER SECTION 40(A)(IA) OF THE ACT WAS SUSTAINED IN TOTO BY THE L EARNED CIT(APPEALS) AND THE ASSESSEE WAS ALLOWED PARTIAL RELIEF OF 50% OF THE DISALLOWAN CE MADE BY THE ASSESSING OFFICER IN RESPECT OF EXPENSES CLAIMED ON ACCOUNT OF THE BREAK AGE OF BOTTLES. 3. AGGRIEVED BY THE ORDER OF THE CIT(APPEALS), HUBL I DT.30.5.2012 FOR ASSESSMENT YEAR 2009-10, REVENUE IS IN APPEAL BEFORE US RAISI NG THE FOLLOWING GROUNDS : 1. THE ORDER OF THE CIT (APPEALS) IS OPPOSED TO L AW AND FACTS OF THE CASE. 2. THE LEARNED CIT (APPEALS) ERRED IN DELETING THE ADDITIONS OF RS.17,05,583 ADDED IN THE ASSESSMENT BEING DISALLOWANCE INTEREST & REMUNERATION PAID THE PARTNERS. 3. THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECI ATED THE FACTS NARRATED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT THE PARTNERSHIP CANNOT BE ASSESSED AS FIRM AS SUCH UNDER SECTION 184 OF INCOM E TAX ACT. 4. THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRE CIATED THE FACT THAT THE DECISION OF THE HON'BLE HIGH COURT OF KARNATAKA, GU LBARGA CIRCUIT BENCH RELIED UPON BY THE CIT (APPEALS) IN THE CASE OF M/S. S.B. PANNALKAR & CO., JAMAKHANDI WAS NOT ACCEPTED BY THE DEPARTMENT AND FURTHER APP EAL IS NOT PREFERRED DUE TO LOWER MONETARY LIMIT AS NARRATED BY THE ASSESSIN G OFFICER IN THE ASSESSMENT ORDER. 5. THE LEARNED CIT (APPEALS) ERRED IN DELETING TH E ADDITIONS OF RS.15,93,347 ADDED IN THE ASSESSMENT BEING DISALLOWANCE OF BOTT LE BREAKAGES. 6. THE LEARNED CIT (APPEALS) OUGHT TO HAVE DIS MISSED THE ASSESSEE CLAIM OF BOTTLE BREAKAGE EXPENDITURE AS THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE FOR BREAKAGES OF BOTTLES NEITHER BEFORE A.O. NOR CIT (A PPEALS). 7. FOR THESE AND OTHER GROUNDS THAT MAYBE URGED AT THE TIME OF HEARING IT IS PRAYED THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 8. THE APPELLATE CRAVES, LEAVES TO ADD, TO ALTE R, TO AMEND OR DELETE ANY OF THE GROUND ON OR BEFORE HEARING OF APPEAL. 4. THE GROUNDS RAISED AT S.NOS.1, 7 & 8 ARE GENERAL IN NATURE AND NOT BEING URGED BEFORE US, NO ADJUDICATION IS CALLED FOR THEREON. 5 ITA NO. 1051/BANG/12 5.1 IN THE GROUNDS RAISED AT S.NOS.2 TO 4, REVENUE CHALLENGES THE ACTION OF THE LEARNED CIT(APPEALS) IN FOLLOWING THE DECISION OF THE HON'B LE JURISDICTIONAL HIGH COURT IN THE CASE OF S.B. PANNALKAR & CO. (SUPRA) AND HOLDING THAT, I N THE FACTS OF THE CASE, THE ASSESSEE PARTNERSHIP FIRM CANNOT BE ASSESSED AS AN AOP AND T HEREBY DELETING THE DISALLOWANCE OF INTEREST AND REMUNERATION TO PARTNERS MADE BY THE A SSESSING OFFICER IN THE ORDER OF ASSESSMENT. IT IS SUBMITTED BY THE LEARNED DEPARTME NTAL REPRESENTATIVE THAT THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF M/S. PANNELKAR & CO. (SUPRA) OUGHT NOT TO HAVE BEEN FOLLOWED BY THE LEARNED CIT(APPEALS) AS THIS D ECISION HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND THAT FURTHER APPEAL IN THE MATTER TO THE HON'BLE APEX COURT WAS NOT FILED ONLY DUE TO THE MONETARY LIMIT INVOLVED. THE LEARNED DEPARTMENTAL REPRESENTATIVE PRAYED FOR THE REVERSAL OF THE ORDER OF THE LEARNED CIT(APPEALS) ON THIS ISSUE AND RESTORATION OF THE ASSESSING OFFICERS FINDING IN T HE MATTER. 5.2 PER CONTRA, THE LEARNED AUTHORISED REPRESENTATI VE STRONGLY SUPPORTED THE ORDER OF THE LEARNED CIT(APPEALS) ON THIS ISSUE. IT WAS FUR THER SUBMITTED THAT SINCE THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THE HON'BLE HIGH COURT IN THE CASE OF M/S. PANNALKAR & CO. (SUPRA), REVENUES APPEAL O N THIS ISSUE WAS LIABLE TO BE DISMISSED. 5.3.1 WE HAVE HEARD BOTH PARTIES AND PERUSED AND CA REFULLY CONSIDERED THE MATERIAL ON RECORD. ON APPRECIATION THEREOF, WE FIND SUBSTANTI AL MERIT IN THE CONTENTIONS OF THE ASSESSEE, BOTH ON FACTS AND IN LAW, AS HAS BEEN HEL D BY THE LEARNED CIT(APPEALS). ADMITTEDLY, THE ASSESSEE WAS FORMED AS A FIRM AND T HEREAFTER THE BUSINESS ACTIVITIES OF DEALING IN IMFL WERE COMMENCED AFTER OBTAINING LICE NSES AND PERMITS IN THE NAMES OF ITS PARTNERS. IT IS NOT THE CASE THAT THE LICENSES WERE OBTAINED AND EXPLOITED BY THE PARTNERS 6 ITA NO. 1051/BANG/12 BEFORE THE FORMATION OF THE ASSESSEE FIRM. NOR DO THE FACTS ON RECORD INDICATE THAT SOME PERSONS HOLDING LICENSES AND PERMITS WERE BROUGHT I N AS PARTNERS. IT IS ALSO NOT IN DISPUTE THAT SINCE INCEPTION ITSELF, THE LICENSE WAS TREATE D AS A PARTNERSHIP ASSET BY EXPRESS PROVISIONS OF THE PARTNERSHIP DEED. 5.3.2 THE ONLY GROUND ON WHICH THE ASSESSING OFFICE R HAS TREATED THE ASSESSEE AS AN AOP WAS THAT THE LICENSES WERE NOT IN THE NAME OF T HE ASSESSEE BUT WERE IN THE NAMES OF THE PARTNERS. ON THE SAME SET OF FACTS, THE HON'BL E JURISDICTIONAL HIGH COURT OF KARNATAKA IN THE CASE OF M/S. S.B. PANNALKAR & CO. (SUPRA) HAS HELD THAT THERE WAS NO STATUTORY PROVISIONS PROHIBITING THE FORMATION OF A PARTNERSHIP FIRM BY A LICENSE HOLDER. THAT THE DEPARTMENT DOES NOT ACCEPT THE AFORESAID D ECISION OF THE HON'BLE HIGH COURT DECISION IN THE CASE OF M/S. S.B. PANNALKAR & CO. (SUPRA) CANNOT BE A REASON FOR NOT FOLLOWING THE SAID DECISION. IT IS A WELL SETTLED PRINCIPLE THAT THE DECISION OF THE HON'BLE HIGH COURT, PARTICULARLY OF THE JURISDICTIONAL HIGH COURT, IS BINDING ON ALL JUDICIAL AUTHORITIES BELOW. IN THIS VIEW OF THE MATTER, THE ACTION OF THE LEARNED CIT(APPEALS) IN PLACING RELIANCE ON AND FOLLOWING THE AFORESAID DEC ISION IN THE CASE OF M/S. S.B. PANNALKAR & CO. (SUPRA) IS IN ORDER AND WE HAVE NO HESITATION I N UPHOLDING THE DECISION OF THE LEARNED CIT(APPEALS) ON THIS ISSUE. WE, THEREFORE, DISMISS GROUND NO.4 RAISED BY REVENUE. 5.3.3 IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS BEEN ASSESSED IN THE STATUS OF A FIRM FOR SEVERAL YEARS. THEREFORE, IN ACCORDANCE WITH T HE PROVISIONS OF SECTION 184 OF THE ACT, THE ASSESSEE SHALL BE ASSESSED IN THE SAME CAPACITY , UNLESS THERE IS A CHANGE IN THE CONSTITUTION OF THE FIRM. THE ASSESSING OFFICER IN THE ORDER OF ASSESSMENT HAS OBSERVED THAT THERE HAS BEEN A CHANGE IN THE PARTNERSHIP DEE D OF THE FIRM IN THE PERIOD UNDER 7 ITA NO. 1051/BANG/12 CONSIDERATION. THIS OBSERVATION OF THE ASSESSING O FFICER WAS DISPUTED BY THE ASSESSEE BEFORE US. IT WAS SUBMITTED BY THE LEARNED AUTHORI SED REPRESENTATIVE THAT THERE WAS NEITHER A CHANGE IN THE CONSTITUTION OF THE FIRM NO R IN THE SHARES OF THE PARTNERS AND THEREFORE THE ASSESSEE IS LIABLE TO BE ASSESSED AS A FIRM ONLY IN THE PERIOD UNDER CONSIDERATION. IT WAS ALSO SUBMITTED BY THE LEARNE D AUTHORISED REPRESENTATIVE THAT THERE HAS BEEN NO DEFAULTS AS MENTIONED IN SECTION 144 OF THE ACT FOR THE ASSESSING OFFICER TO INVOKE THE PROVISIONS OF SECTION 184(5) OF THE ACT. IN THE ABOVE FACTUAL VIEW OF THE MATTER, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO BASIS FOR THE ASSESSING OFFICER TO INVOKE THE PROVISIONS OF SECTION 184 OF THE ACT TO DISALLOW THE REMUNERATION AND INTEREST PAID TO THE PARTNERS BY THE ASSESSEE FIRM. FURTHER, AS HELD BY THE HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF M/S. S.B. PANNALK AR & CO. (SUPRA), THE BUSINESS OF THE ASSESSEE IS LEGAL AND HENCE THE ASSESSEE FIRM IS EN TITLED TO DEDUCTION ON ACCOUNT OF REMUNERATION AND INTEREST PAID TO PARTNERS. WE, TH EREFORE, UPHOLD THE DECISION OF THE LEARNED CIT(APPEALS) IN DELETING THE DISALLOWANCE OF RS.17,05,583 MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INTEREST AND REMUNERATION PAI D TO THE PARTNERS BY THE ASSESSEE FIRM. WE, THEREFORE, DISMISS GROUND NOS.2 AND 3 RA ISED BY REVENUE. 6.1 IN THE GROUNDS RAISED AT S.NOS.5 & 6 , REVENUE CHALLENGES THE ACTION OF THE LEARNED CIT(APPEALS) IN DELETING 50% OF THE DISALLOWANCE O F RS.15,93,347 MADE BY THE ASSESSING OFFICER IN RESPECT OF BOTTLE BREAKAGES. IT IS THE CONTENTION OF REVENUE THAT THIS ACTION OF THE LEARNED CIT(APPEALS) IN DELETING THE DISALLOWAN CE WAS ERRONEOUS SINCE THE ASSESSEE HAD NOT BROUGHT ON RECORD ANY EVIDENCE FOR THE OCCU RRENCE OF THE SAID BREAKAGES. 8 ITA NO. 1051/BANG/12 6.2 IN THE ORDER OF ASSESSMENT, THE ASSESSING OFFIC ER DISALLOWED THE ENTIRE CLAIM OF EXPENDITURE ON ACCOUNT OF BOTTLE BREAKAGES AMOUNTIN G TO RS.15,93,347 FOR THE REASON THAT SINCE NO DETAILS WERE FURNISHED IN THIS REGARD AND THE STOCK REGISTERS AND COPIES OF REPORTS SUBMITTED TO THE EXCISE DEPARTMENT WERE NOT FURNISHED FOR VERIFICATION; THERE WAS NO EVIDENCE ON RECORD TO SUPPORT THE ASSESSEE'S CLAIM FOR ALLOWING THIS EXPENDITURE. ON APPEAL, THE LEARNED CIT(APPEALS) ON APPRAISAL OF THE FACTS OF THE CASE AND THE BUSINESS OF THE ASSESSEE OBSERVED THAT SUCH BOTTLE BREAKAGES IS QUITE COMMON IN LIQUOR TRADE AND ALLOWED 50% OF THE EXPENSES CLAIMED. 6.3 WE HAVE HEARD BOTH THE LEARNED DEPARTMENTAL REP RESENTATIVE AND THE LEARNED AUTHORISED REPRESENTATIVE AND CAREFULLY PERUSED AND CONSIDERED THE MATERIAL ON RECORD. ADMITTEDLY, THE ASSESSEE HAS NOT PRODUCED THE EVIDE NCE CALLED FOR BY THE ASSESSING OFFICER TO SUPPORT ITS CLAIM OF EXPENDITURE TOWARDS BOTTLE BREAKAGES. AS RIGHTLY OBSERVED BY THE LEARNED CIT(APPEALS) BOTTLE BREAKAG ES IS A NORMAL OCCURRENCE IN THE LIQUOR BUSINESS OF WHICH THE ASSESSEE IS A PART. IT HAS ALSO BEEN OBSERVED BY THE LEARNED CIT(APPEALS) THAT THE ASSESSEE MAINTAINS 12 IMFL RE TAIL OUTLETS AT DIFFERENT PLACES IN BELLARY DISTRICT AND HAS BEEN CLAIMING SUCH EXPENDI TURE ON BOTTLE BREAKAGES IN THE EARLIER ASSESSMENT PERIODS ALSO. FOR ASSESSMENT YEAR 2008- 09, THE ASSESSEE CLAIMED BOTTLE BREAKAGE EXPENSES OF RS.8,43,534 ON A TURNOVER OF R S.23.17 CRORES, WHILE IN THE YEAR UNDER CONSIDERATION THE ASSESSEE CLAIMED BOTTLE BRE AKAGE EXPENDITURE OF RS.15,93,342 ON A TOTAL TURNOVER OF RS.33.83 CRORES. ON AN APPRECI ATION OF THE TOTAL FACTS AND CIRCUMSTANCES OF THE CASE ON THIS ISSUE, WE ARE OF THE VIEW THAT THE DECISION OF THE LEARNED CIT(APPEALS) TO ALLOW 50% OF THE TOTAL CLAI M OF BOTTLE BREAKAGE OF RS.15,93,342 9 ITA NO. 1051/BANG/12 AND DISALLOWING 50% THEREOF, APPEARS TO BE A FAIR E STIMATION AND WE, THEREFORE, UPHOLD THIS DECISION OF THE LEARNED CIT(APPEALS). GROUNDS RAISED BY REVENUE AT S.NO.5 ARE ACCORDINGLY DISMISSED. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH SEPT., 2013. SD/- SD/- (N.V. VASUDEVAN) (JASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMB ER *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, - B BENCH. 6. GUARD FILE. (TRUE COPY ) BY ORDE R ASST. REGISTRAR, ITAT, BANGALORE .