ALBRIGHT & WILSON CHEMICALS INDIA LTD, MUMBAI V. ADDL CIT CIR 6(1), MUMBAI

ITA 1222/MUM/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3526 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 23-02-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HARIGOVIND SINGH
• Keywords: Opportunity of being heard; Revenue expenditure; Capital expenditure; Set aside
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI RAJENDRA SINGH,(AM) ITA NO.1222/MUM/2009 ASSESSMENT YEAR : 2005-06 ALBRIGHT & WILSON CHEMICALS INDIA LIMITED PHEONIX HOUSE, A WING 462, 4 TH FLOOR SENAPATI BAPAT MARG LOWER PAREL MUMBAI-400 013. ..( APPELLANT ) P.A. NO. (AAACA 3841 L) VS. ADDL. COMMISSIONER OF INCOME TAX CIRCLE 6(1) MUMBAI. ..( RESPONDENT ) ITA NO.843/MUM/2009 ASSESSMENT YEAR : 2005-06 ADDL. COMMISSIONER OF INCOME TAX CIRCLE 6(1) MUMBAI. ..( APPELLANT ) VS. ALBRIGHT & WILSON CHEMICALS INDIA LIMITED MUMBAI-400 013. ..( RESPONDENT ) ASSESSEE BY : SHRI YOGESH THAR DEPARTMENT BY : SHRI HA RI GOVIND SINGH O R D E R PER D.K. AGARWAL (JM). THESE CROSS APPEALS BY THE ASSESSEE AND REVENUE ARE DIRECTED AGAINST THE ORDER DATED 15.12.2008 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2005-06. SINCE ISSUES INVOLVED ARE COMMON, BOTH ITA NO.1222 & 843/M/09 A.Y:05-06 2 THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER FOR T HE SAKE OF CONVENIENCE. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE COM PANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING, SALE, PROCESSING , TRADING OF CHEMICALS AND AGENCY COMMISSION, FILED RETURN DECLARING TOT AL INCOME OF RS.10,00,40,515/-. DURING THE COURSE OF ASSESSMENT IN WAS INTERALIA OBSERVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS INCURRED AN EXPENDITURE OF RS.1.70 LACS ON ERECTION AND COMMISSIONING OF BUCKET ELEVATOR. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE SAME SHOULD NOT BE TREATED AS CAPITAL EXPENDITURE. IT WAS EXPLAINED BY THE ASSESSEE THAT THE EXPENDITURE WAS INCURRED FOR REP LACEMENT OF EXISTING BUCKET ELEVATOR AND NO NEW BUCKET ELEVATOR HA S BEEN INSTALLED. ACCORDING TO THE ASSESSING OFFICER THE EXPLANA TION OF THE ASSESSEE ENDORSES THE FACT THAT THIS IS A CAPITAL EXPENDITU RE AND HENCE, HE DISALLOWED THE SAME AND ADDED TO THE INCOME OF THE ASSESSEE. APART FROM THIS, IT WAS ALSO OBSERVED BY THE ASSE SSING OFFICER THAT THE ASSESSEE FOLLOWS EXCLUSIVE SYSTEM OF ACCOUNTI NG AND HAD VALUED ITS INVENTORY AS ON 31.3.2005 EXCLUSIVE OF TAXES DUTIES ETC. PAID OR INCURRED ON SUCH CLOSING STOCK. ACCORDING TO TH E ASSESSING OFFICER THE PROVISIONS OF SEC.145A OF THE I.T. ACT, 1961 (THE ACT), ARE MANDATORY AND THE ASSESSEE IS REQUIRED TO TAKE INTO CONSID ERATION ALL THE TAXES AND DUTIES ETC. WHILE SHOWING SALES, PURCHASES A ND INVENTORY. THE ASSESSING OFFICER AFTER RELYING ON THE D ECISION IN MELMOULD CORPORATION 202 ITR 789(BOM.), CIT VS. MOP EDS INDIA LTD. 173 ITR 347(AP) AND TRIVEDI ENGG. WORKS LTD. VS. CIT 167 ITR 742(ALL.) MADE THE FOLLOWING ADJUSTMENTS IN THE CLOSI NG STOCK:- ITA NO.1222 & 843/M/09 A.Y:05-06 3 (A) (1) EXCISE DUTY/VAT INCURRED OR PAID ON SALES 26,97,56 ,636 (2) EXCISE DUTY/VAT ON CLOSING STOCK OF RAW MATERIAL, STORES AND SPARES, FUEL ITEMS, PACKING MATERIAL, ETC. 58,83,222 (3) EXCISE DUTY /VAT PAID ON RAW MATERIALS/OTHER MATERIAL CONSUMED FORMING PART OF W.I.P. 5,97,612 (4) EXCISE DUTY/VAT ON CLOSING STOCK OF FINISHED GOODS OR TRADING GOODS AS THE CASE MAY BE 90,82,315 TOTAL (A) SUM O F ABOVE 28,53,09,785 (B) (1) EXCISE DUTY/VAT ON OPENING STOCK OF RAW MATERIAL/WORK-IN-PROGRESS/OTHER MATERIALS (ADJUSTMENT IN OPENING STOCK RAW MATERIAL, ETC. IS NOT CONSIDERED BECAUSE THE ASSESSEE HAS NOT FOLLOWED 145A FOR VALUATION OF INVENTORY IN ASSESSMENT YEAR 2004-05 AND MADE THE ADJUSTMENT PRESCRIBED IN THE ACT). NIL (2) EXCISE DUTY/VAT INCURRED ON PURCHASE OF RAW MATERIAL/TRADING GOODS/STORES AND PACKING MATERIAL ON PURCHASE OF RAW MATERIAL ETC. 16,53,22,328 (3) PAYMENT OF EXCISE DUTY/VAT PAID IN CASH. 10,30,57,6 57 (4) LIABILITY PROVIDED FOR EXCISE DUTY ON FINISHED GOO DS. 71,64,981 (5) ANY AMOUNT OF EXCISE DUTY/VAT AVAILED AS CREDIT ON PURCHASE OF CAPITAL ITEM OR CREDIT AVAILED FOR SERVICE TAX PAID ON INPUT SERVICES. 8,77,880 TOTAL (B) SUM OF ABOVE 27,64,22,846 ADJUSTMENT IN CLOSING STOCK AS PER SECTION 145A (A-B) 88,86,939 ACCORDINGLY HE MADE AN ADDITION OF RS.88,86,939/- ON T HE VALUATION OF CLOSING STOCK. THE ASSESSING OFFICER AFTER MAKING SOME OTH ER DISALLOWANCE COMPLETED THE ASSESSMENT AT AN INCOME OF RS.10,97,14,100/-, VIDE ORDER DATED 28.12.2007 PASSE D U/S.143(3) OF THE ACT. 3. ON APPEAL, THE LD. CIT(A) ON THE ISSUE OF DISALLO WANCE OF REPAIRS AND MAINTENANCE EXPENSES RS.1,70,000/- OBSERVED THAT TH E BUCKET ELEVATOR IS A PLANT ITSELF WHICH IS WORN OUT AND HAD BE EN REPLACED WITH A NEW ELEVATOR, THEREFORE, IT IS REQUIRED TO BE TRE ATED AS CAPITAL EXPENDITURE AND NOT REPAIRS. THE LD. CIT(A) WHILE H OLDING THAT THE DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE AR E FACTUALLY DIFFERENT CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. ITA NO.1222 & 843/M/09 A.Y:05-06 4 4. WITH REGARD TO THE ADDITION OF RS.88,86,939/- U/S. 145A , THE LD. CIT(A) OBSERVED THAT THE ASSESSING OFFICER WHILE MAKING T HE ADJUSTMENT HAS NOT ALLOWED AN ADJUSTMENT IN THE OPEN ING STOCK OR PURCHASES. THE ELEMENT OF CENTRAL EXCISE DUTY SHOULD NOT BE THE SOURCE OF PROFIT IN THE HANDS OF THE ASSESSEE, THEREFORE, WHERE EXCLUSIVE METHOD IS FOLLOWED THEN THE MODVAT ELEMENT W HICH IS REQUIRED TO BE ADDED IN THE CLOSING STOCK IS THE SAME AS THE MODVAT CREDIT YET TO BE AVAILED ON ACCOUNT OF PURCHASES SHOWN THE BALANCE SHEET, NO ADDITION ON ACCOUNT OF APPLICABILITY OF SEC.145 A COULD BE MADE. HOWEVER, IF MODVAT ELEMENT TO BE INCLUDED IN THE CLOSING STOCK IS MORE THAN THE MODVAT BALANCE AVAILABLE IN THE MODV AT CREDIT ACCOUNT OCCURRING IN THE ASSET SIDE OF THE BALANCE SHEET, TH E BALANCE IS REQUIRED TO BE ADDED. HE, THEREFORE, DIRECTED THE ASSE SSING OFFICER TO VERIFY THESE FACTS AND MAKE ADDITION ONLY IF THERE IS A DIFFERENCE BETWEEN THE AFORESAID TWO FIGURES. 5. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE AND REVENUE BOTH ARE IN APPEAL BEFORE US. ITA NO.1222/MUM /2009 (ASSESSEE'S APPEAL): 6. GROUND NO.I IS AGAINST THE SUSTENANCE OF DISALLOWANCE O F REPAIR AND MAINTENANCE EXPENSES RS.1,70,000/-. 7. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE WHILE REITERATING THE SAME SUBMISSIONS AS SUBMITTED BEFORE THE ASSESSING OFFICER AND THE LD. CIT(A) REFERS COPY OF BILL AND THE ASSESSEE'S EXPLANATION APPEARING AT PAGE-42-43 OF ASSESSEE'S PAPER BOOK STATING AS UNDER :- ITA NO.1222 & 843/M/09 A.Y:05-06 5 REPAIRS OF RS .1,70,000/- WAS UNDERTAKEN OF BUCKET ELEVATOR IN THE ASSESSMENT YEAR 2005-06 (FINANCIAL YEAR 2004-05) AND IN THE ACCOUNTS IT WAS MENTIONED AS ERECTION, COMMISSIONING OF BUCKET ELEVATOR-A FOR WH ICH EXPLANATION IS AS UNDER : IN AMBERNATH PLANT, ROCK PHOSPHATE (IN POWDER FOR M) IS A RAW MATERIAL WHICH IS USED TO PREPARE SODIUM TRI POLY PHOSPHATE (STPP) IS FIRST UNLOADED AT GROUND A ND THEN IN BUCKET ELEVATOR. THESE BUCKET ELEVATORS A RE MADE OF IRON WHICH ARE FITTED WITH CASTING (BELT) W HICH ROTATES UP & DOWN, CARRIES ROCK PHOSPHATE FROM GROU ND LEVEL AND STORED IN SILOS (STORAGE TANK) WHICH IS 80 FT. HIGH FROM GROUND LEVEL. ROCK PHOSPHATE CONTAINS PHOSPHORIC ACID WHICH REACT S WITH IRON IN NORMAL COURSE WHEN IT IS TAKEN FROM GR OUND TO SILOS, HENCE BUCKET ELEVATOR BECOMES EROSIVE DU E TO WHICH THERE IS A LEAKAGE, BREAKDOWNS ETC. AND HENCE NEEDS TO BE REPLACED. THE SAID EXPENDITURE INCURRED IS TOWARDS REPAIRS AN D MAINTENANCE ARE IN NATURE OF CURRENT REPAIRS. SUCH EXPENDITURE INCURRED HAS NOT RESULTED IN BRINGING I NTO EXISTENCE ANY NEW ASSET NOR HAS ANY PERMANENT OR ENDURING BENEFIT. IN THE LIGHT OF THE ABOVE HE SUBMITS THAT THE ABOVE E XPENDITURE INCURRED BY THE ASSESSEE IS IN THE NATURE OF CURRENT REPAI RS THEREFORE, THE SAME MAY BE ALLOWED AS REVENUE EXPENDITURE. 8. ON THE OTHER HAND THE LD. DR WHILE RELYING ON TH E ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A) ALSO RELIED ON THE D ECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. SARVANA SP INNING MILLS P. LTD.(2007) 293 ITR 201 (SC) WHEREIN IT HAS BEEN HEL D THAT THE REPLACEMENT OF WORN-OUT RING FRAMES IS NOT CURRENT REP AIRS U/S.31(I) OF THE ACT. HE THEREFORE, SUBMITS THAT THE DISALLOWANCE MAD E BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) BE UPHEL D. ITA NO.1222 & 843/M/09 A.Y:05-06 6 9. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THERE IS NO DISPUTE THAT THE ASSESSEE HAS FILED COPY OF BILL ALONG WI TH NOTE ON REPAIRS OF BUCKET ELEVATOR BEFORE THE ASSESSING OFFICER AN D THE LD. CIT(A) APPEARING AT PAGE 42-43 OF ASSESSEE'S PAPER BOOK TO SHOW THAT THE OLD BUCKET ELEVATOR BECAME EROSIVE DUE TO W HICH THERE IS A LEAKAGE/BREAKDOWN ETC. AND HENCE, NEEDS TO BE REPLACED. THEREFORE, THE EXPENDITURE INCURRED ON BUCKET ELEVATOR IS TOWARDS REPAIRS AND MAINTENANCE AND NOT RESULTED IN BRINGING INTO EXISTENCE ANY NEW ASSETS NOR HAS ANY PERMANENT OR ENDURING BENEFIT. HOWE VER, THE ASSESSING OFFICER AND THE LD. CIT(A) WITHOUT GIVING ANY FINDING ON THE WORKING OF MACHINERY AND PROCESS OF USE AND REPLACEMENT OF BUCKET ELEVATOR HAVE HELD THAT IT IS IN THE NATURE OF CAPIT AL EXPENDITURE. 10. IN SARVANA SPINNING MILLS P. LTD. SUPRA, IT HAS B EEN OBSERVED AND HELD (HEADNOTE):- DURING THE PREVIOUS YEARS RELEVANT TO THE ASSESSME NT YEARS 1993-94 AND 1994-95, THE ASSESSEE, A TEXTILE MILL ENGAGED IN THE MANUFACTURE OF YARN, SPENT CERTAIN AMOUNTS FOR REPLACEMENT OF RING FRAMES WHICH HAD WO RN OUT. IT CLAIMED DEDUCTION OF THE AMOUNTS SPENT FOR REPLACEMENT UNDER SECTION 31(I) OF THE INCOME-TAX A CT, 1961, AS CURRENT REPAIRS. ACCORDING TO THE ASSESSEE THE WHOLE TEXTILE MILL WAS A PLANT AND THE RING FRAME S WERE ONE OF THE 25 MACHINES WHICH CONSTITUTED ONE SINGLE PROCESS AND, THEREFORE, REPLACEMENT OF THE FRAMES H AD TO BE TREATED ONLY AS A REPLACEMENT OF OLD PARTS WHICH HAD BECOME DERELICT AND NOT REPLACEMENT OF A MACHINE. T HE ASSESSING OFFICER HELD THAT BY THE REPLACEMENT THE ASSESSEE HAD OBTAINED AN ENDURING BENEFIT AND THE EXPENDITURE INCURRED CONSTITUTED CAPITAL EXPENDITUR E AND NOT CURRENT REPAIRS. ON APPEAL THE COMMISSIONER (APPEALS) HELD THAT THE REPLACEMENT OF THE RING FRA MES CONSTITUTED AN INTEGRAL PART OF THE PRODUCTION SYST EM IN A TEXTILE MILL AND, THEREFORE, REPLACEMENT OF AN ITEM COULD ITA NO.1222 & 843/M/09 A.Y:05-06 7 NOT BE REGARDED AS INSTALLATION OF A SEPARATE MACHI NE AND ALLOWED THE EXPENDITURE AS REVENUE EXPENDITURE. THE APPELLATE TRIBUNAL AFFIRMED THE DECISION OF THE COMMISSIONER (APPEALS). ON A REFERENCE, THE HIGH COU RT AFFIRMED THE DECISION OF THE APPELLATE TRIBUNAL. PL ACING RELIANCE ON THE REPORT OF THE SOUTH INDIA TEXTILE R ESEARCH ASSOCIATION, THE HIGH COURT HELD THAT THE PROCESS OF CONVERTING FIBRE TO YARN WAS ONE CONTINUOUS INTERLI NKED PROCESS ; THAT THE RING FRAMES COULD NOT WORK INDEPENDENTLY AND COULD WORK ONLY AS A PART OF THE SPINNING UNIT, AND THAT THE EXPENDITURE WAS DEDUCTI BLE UNDER SECTION 31(I). ON APPEAL TO THE SUPREME COURT : HELD, REVERSING THE DECISION OF THE HIGH COURT, (I) THAT THE MANUFACTURING PROCESS IN THE TEXTILE MILL WAS NOT O NE CONTINUOUS INTEGRATED PROCESS ; (II) THAT TO DECIDE THE APPLICABILITY OF SECTION 31 (I) THE TEST WAS NOT WHETHER THE EXPENDITURE WAS REVENUE OR CAPI TAL IN NATURE, BUT WHETHER THE EXPENDITURE WAS CURRENT REPAIRS. THE BASIC TEST WAS TO FIND OUT WHETHER EXPENDITURE WAS INCURRED TO PRESERVE AND MAINTAIN AN ALREADY EXISTING ASSET, AND THE EXPENDITURE MUST NO T BE TO BRING A NEW ASSET INTO EXISTENCE OR TO OBTAIN NE W ADVANTAGE. (III) THAT EACH MACHINE INCLUDING THE RING FRAME WA S AN INDEPENDENT AND SEPARATE MACHINE CAPABLE OF INDEPENDENT AND SPECIFIC FUNCTION AND, THEREFORE, T HE EXPENDITURE INCURRED FOR REPLACEMENT THEREOF WOULD NOT COME WITHIN THE MEANING OF CURRENT REPAIRS. THE REPLACEMENT OF THE RING FRAME CONSTITUTED SUBSTITUT ION OF AN OLD ASSET BY A NEW ASSET, AND, THEREFORE, THE EXPENDITURE INCURRED BY THE ASSESSEE DID NOT FALL W ITHIN THE MEANING OF CURRENT REPAIRS IN SECTION 31(I). UNDER SECTION 31(I) THE DEDUCTION ADMISSIBLE IS ONL Y FOR CURRENT REPAIRS. THEREFORE, THE QUESTION AS TO WHET HER THE EXPENDITURE INCURRED BY THE ASSESSEE CONCEPTUALLY I S REVENUE OR CAPITAL IN NATURE IS NOT RELEVANT FOR DE CIDING THE QUESTION WHETHER SUCH EXPENDITURE COMES WITHIN THE ETYMOLOGICAL MEANING OF THE EXPRESSION CURRENT REP AIRS. IN OTHER WORDS, EVEN IF THE EXPENDITURE IS REVENUE IN NATURE, IT MAY NOT FALL IN THE CONNOTATION OF CURR ENT REPAIRS. 11. SINCE THE ISSUE HAS NOT BEEN EXAMINED IN THE LIGHT OF THE RATIO LAID DOWN BY THE HONBLE APEX COURT SUPRA, THEREFORE , WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE MATTER SHOULD GO BACK TO THE ITA NO.1222 & 843/M/09 A.Y:05-06 8 FILE OF THE ASSESSING OFFICER AND ACCORDINGLY WE SET ASIDE T HE ORDERS PASSED BY THE REVENUE AUTHORITIES ON THIS ACCOUNT AND SEN D BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER WHO SHALL DECI DE THE SAME AFRESH IN THE LIGHT OF THE PRINCIPLES LAID DOWN BY TH E HONBLE APEX COURT IN THE ABOVE CASE AND ACCORDING TO LAW AFTER PRO VIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 12. GROUND NO.II AND III ARE AGAINST THE ADJUSTMENT IN THE VALUE OF OPENING STOCK U/S.145A. 13. AT THE TIME OF HEARING BOTH PARTIES HAVE AGREED THAT IN VIEW OF THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS. MAHALAXMI GLASS WORKS PVT. LTD. (2009) 318 ITR 116(BOM.) AND THE ORDER OF THE TRIBUNAL IN HAWKINS COOKERS LTD. VS. ITO (2008) 14 DR ( MUMBAI) (TRIB.) 206 THE ISSUE MAY BE SET ASIDE TO THE FILE OF T HE ASSESSING OFFICER. 14. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE R IVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. UNDER T HE PROVISIONS OF SECTION 145A OF THE ACT, ADJUSTMENTS ON ACCOUNT OF MODVAT ARE REQUIRED TO BE MADE IN RESPECT OF PURCHASES, SALES AND INV ENTORY IN THE CLOSING STOCK. WE FIND THAT RECENTLY THE HONBLE JURI SDICTIONAL HIGH COURT IN CIT VS. MAHALAXMI GLASS WORKS PVT. LTD. (2009) 318 ITR 116(BOM.) WHILE AGREEING WITH THE REASONING AND FI NDING GIVEN BY THE HONBLE DELHI HIGH COURT IN CIT VS. MAHAVIR ALUMINIU M LTD. (2008) 297 ITR 77(DEL.) THAT TO GIVE EFFECT TO SECTION 145A, IF THERE IS ANY ITA NO.1222 & 843/M/09 A.Y:05-06 9 CHANGE IN THE CLOSING STOCK AT THE END OF THE YEAR THE N THERE MUST NECESSARILY BE A CORRESPONDING ADJUSTMENT MADE IN THE OPE NING STOCK OF THAT YEAR AND THIS WOULD NOT AMOUNT TO GIVE DOUBL E BENEFIT TO THE ASSESSEE AND WOULD BE NECESSARY TO COMPUTE THE TRUE AND CORR ECT PROFIT FOR THE PURPOSE OF ASSESSMENT, UPHELD THE ORDER OF THE TRIBUNAL IN DIRECTING THE ASSESSING OFFICER TO MAKE NECESSARY CORRESPO NDING ADJUSTMENT IN THE OPENING STOCK OF NEXT YEAR. IN TH E ABSENCE OF ANY DISTINGUISHING FEATURE BROUGHT ON RECORD BY THE PARTIE S WE RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT SUPRA, SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WHO SH ALL DECIDE THE SAME AFRESH IN THE LIGHT OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT AND ACCORDING TO LAW AFTER PROVIDING A REASO NABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE PARTLY ALLOWED FOR STATISTICAL PUR POSES. ITA NO.843/MUM/2009 (REVENUES APPEAL): 15. GROUND NO.1 AND 2 ARE AGAINST THE DIRECTION OF TH E LD. CIT(A) WHILE WORKING OUT ADDITION U/S.145A. 16. AT THE TIME OF HEARING BOTH PARTIES HAVE AGREED THAT IN VIEW OF THE PLEA TAKEN IN GROUND NO.2 AND 3 IN ASSESSEE'S APPEA L, THE ISSUE MAY BE DECIDED ACCORDINGLY. 17. AFTER HEARING THE RIVAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD AND KEEPING IN VIEW OF OUR FINDI NG RECORDED IN PARA -14 OF THIS ORDER WE DIRECT THE ASSESSING OFFICER TO FOLL OW OUR DIRECTION RECORDED THEREIN AND DECIDE THE ISSUE ACCORDINGLY AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THE GROUNDS ITA NO.1222 & 843/M/09 A.Y:05-06 10 TAKEN BY THE REVENUE ARE, THEREFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 18. IN THE RESULT, BOTH THE APPEALS ARE PARTLY ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.12.2010. SD/- SD/- (RAJENDRA SINGH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 22.12.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.