Sri. TARUNSINGH R RATHI, MUMBAI V. ITO Wd. 18(3)(4), MUMBAI

ITA 1246/MUM/2006

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7998 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Next Hearing Date: 14-03-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 20-02-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMEET KUMAR SR DR PER R K
• Keywords: Income from undisclosed sources; Principle of natural justice; Initiation of penalty proceedings

Judgement Text

1 ITA NO.1246/MUM/2006 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI J JJ J BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE BEFORE BEFORE BEFORE SHRI D MANMOHAN, VP & SHRI D MANMOHAN, VP & SHRI D MANMOHAN, VP & SHRI D MANMOHAN, VP & SHRI R K PANDA, AM SHRI R K PANDA, AM SHRI R K PANDA, AM SHRI R K PANDA, AM ITA NO. ITA NO. ITA NO. ITA NO. 1246/MUM/2006 1246/MUM/2006 1246/MUM/2006 1246/MUM/2006 (ASST YEAR (ASST YEAR (ASST YEAR (ASST YEAR 2002 2002 2002 2002- -- -03 0303 03) )) ) SHRI TARUNSINGH R RATHI 505 B WING PANCHATANTA III OFF YARI ROAD ANDHERI (W) MUMBAI 58 VS THE INCOME TAX WARD 18(3)(4), MUMBAI ( (( (APPELLANT APPELLANT APPELLANT APPELLANT) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO.ADHPRP 3169F ADHPRP 3169F ADHPRP 3169F ADHPRP 3169F AS SESSEE BY SHRI SATISH R MODY REVENUE BY S HRI SUMEET KUMAR, SR DR PER R K PANDA, AM PER R K PANDA, AM PER R K PANDA, AM PER R K PANDA, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 4.1.2006 OF THE CIT(A)-XXVIII, MUMBAI RELATING TO A SSESSMENT YEAR 2002-03. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNAL FOR NO N APPEARANCE. SUBSEQUENTLY, THE TRIBUNAL, VIDE ORDER DATED 9.7.2010 RECALLED IT S EARLIER ORDER. HENCE, THIS IS A RECALLED MATTER. 2 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSE E IS A FASHION DESIGNER AND FILED HIS RETURN OF INCOME ON 31.3.2003 DECLARING A TOTAL INCOME OF RS. 1,52,327/-. DESPITE NUMBER OF OPPORTUNITIES GI VEN BY THE ASSESSING OFFICER, THE ASSESSEE NEVER BOTHERED TO ATTEND BEFORE HIM. EVEN AFTER INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(B) ALSO, THE ASSESSE E NEVER BOTHERED TO APPEAR BEFORE HIM. THEREFORE, THE ASSESSING OFFICER ISSUE D SHOW CAUSE NOTICE INTIMATING THE PROPOSED DISALLOWANCE IN ABSENCE OF SUPPORTING DOCUMENTARY EVIDENCES AND 2 ITA NO.1246/MUM/2006 ALSO ASKED THE ASSESSEE TO APPEAR BEFORE HIM. THE REAFTER, THE ASSESSEE, THROUGH HIS AUTHORISED REPRESENTATIVE, APPEARED BEF ORE THE ASSESSING OFFICER BUT NOT PRODUCED ANY DOCUMENTARY EVIDENCES AND ASKE D FOR ADJOURNMENT. SUBSEQUENTLY, ON THE BASIS OF THE COPY OF BANK ACCO UNT FILED BEFORE HIM, THE ASSESSING OFFICER NOTED THAT AS AGAINST THE TOTAL D EPOSIT OF RS. 1,194,300/- IN VARIOUS BANK ACCOUNTS, THE ASSES SEE HAS SHOWN THE TOTAL RECEIPT OF RS. 4,57,800/- ONLY. HE, THEREFORE, ASK ED THE ASSESSEE TO EXPLAIN AS TO WHY THE DIFFERENCE AMOUNT OF RS. 7,36,500/- SHOULD NOT BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. HE, ALSO ASKED THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNT, VOUCHERS FOR EXPENSES, CASH FLOW STATEMENT ETC. IT WAS FURTHER INTIMATED TO THE ASSESSEE THAT IN CASE OF NON COMPL IANCE, THE CASE WILL BE FINALISED ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD AND NO ADJOURNMENT WILL BE ALLOWED. IN RESPONSE TO SUCH NOTICE BY THE ASSE SSING OFFICER, IT WAS SUBMITTED THAT THE DETAILS ARE NOT AVAILABLE AND REQUESTED FO R ADJOURNMENT. KEEPING IN MIND THE PRINCIPLE OF NATURAL JUSTICE, THE ASSESSI NG OFFICER GRANTED ADJOURNMENT. FINALLY, THE ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER ON 28.1.2005 AND PRODUCED CERTAIN DETAILS ALONG WITH CASH BOOK. 2.1 ON EXAMINATION OF THE CASH BOOK, THE ASSESSING OFFICER NOTED THAT AS AGAINST RECEIPT OF CASH ON ACCOUNT OF PROFESSIONAL FEE OF RS. 7,86,260/-, THE ASSESSEE HAS DISCLOSED PROFESSIONAL RECEIPT OF RS. 4,57,800/- IN HIS TWO PROPRIETARY CONCERNS. IN ABSENCE OF ANY SATISFACT ORY EXPLANATION, THE ASSESSING OFFICER ADDED THE DIFFERENCE OF RS. 3,28,460/- HOL DING THAT THE SAME IS NOTHING BUT THE INCOME WHICH HAS NOT BEEN OFFERED BY THE A SSESSEE FOR TAXATION. SIMILARLY, HE NOTED FROM BANK STATEMENTS THAT PROFE SSIONAL FEE OF RS. 3,080/- ON 31.5.2001, RS. 50,000/- ON 30.8.2001 AND RS. 70,000 /- ON 9.3.2002 AGGREGATING TO RS. 1,23,080/- RECEIVED BY CHEQUE HAVE NOT BEEN OFFERED BY THE ASSESSEE FOR 3 ITA NO.1246/MUM/2006 TAXATION. TOTAL OF CASH DISCREPANCY AND CHEQUE DIS CREPANCY COMES TO RS. 4,51,540/-. IN ABSENCE OF ANY SATISFACTORY EXPLANA TION FROM THE ASSESSEE, THE ASSESSING OFFICER MADE THE ADDITION OF RS. 4,51,540 /-. THE ASSESSING OFFICER FURTHER ADDED AN AMOUNT OF RS. 50,000/- ON THE G ROUND THAT THE ASSESSEE IS RECEIVING PROFESSIONAL RECEIPTS IN CASH AND MIGHT N OT HAVE DISCLOSED THE ENTIRE CASH RECEIPTS. SINCE THE ASSESSEE DID NOT GIVE ANY OBJECTION TO THE PROPOSED ADDITION, THE ASSESSING OFFICER MADE THE ADDITION O F RS. 50,000/-BEING PROBABLE CASH RECEIPT. SIMILARLY, IN ABSENCE OF PROPER CLARI FICATION BY THE ASSESSEE, THE ASSESSING OFFICER MADE ADDITION OF RS. 1,22,241/- O N ACCOUNT OF DRAWINGS OF RS. 72,241/- NOT REFLECTED IN THE BOOKS AND PROBABLE PERSONAL ELEMENTS INVOLVED IN THE OTHER EXPENSE AMOUNTING TO RS. 50,000/-. 2.2 FROM THE VERIFICATION OF THE BILLS AND VOUCHER S ON ACCOUNT OF VARIOUS EXPENSES CLAIMED IN THE P&L ACCOUNT, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD INCURRED EXPENSES BY CHEQUE AMOUNTING TO RS. 2,92,666/- AND IN CASH RS. 1,65,242/- I.E. RS. 4,59,908/-. ON GOING THROUGH THE P&L ACCOUNT SUBMITTED BY THE ASSESSEE, THE ASSESSING OFFICER NO TED THAT THE ASSESSEE HAD CLAIMED EXPENSES IN BOTH THE FIRMS I.E. RS. 71,136/ - IN M/S RAJNANDINI ENTERTAINMENTS AND RS. 2,34,338/ IN M/S RAJNANDHINI FASHIONS BOTH TOTALLING TO RS. 3,05,474/-. ACCORDING TO THE ASSESSING OFFICER , IT CLEARLY INDICATES THAT THE ASSESSEE HAD SPENT RS. 1,54,434/- IN ADDITION TO TH E EXPENSES STATED IN THE P&L ACCOUNT. IN ABSENCE OF ANY SATISFACTORY EXPLANATIO N FROM THE ASSESSEE, HE MADE THE ABOVE ADDITION. 2.3 BEFORE THE CIT(A), DESPITE GIVING MORE THAN TEN OPPORTUNITIES, THE ASSESSEE DID NOT BOTHER TO FURNISH FURTHER DETAILS AND SOUGHT ADJOURNMENTS ON SOME PRETEXT OR OTHER. THEREFORE, THE CIT(A) DECID ED THE ISSUE ON MERIT ON THE 4 ITA NO.1246/MUM/2006 BASIS OF THE MATERIAL AVAILABLE ON RECORD AND CONFI RMED THE VARIOUS ADDITIONS MADE BY THE ASSESSING OFFICER INCLUDING THE EX-PART E ASSESSMENT. 3 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSES SEE IS IN APPEAL HERE BEFORE US WITH THE FOLLOWING GROUNDS: I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THAT THE LD CIT(A) XXVII, MUMBAI ERRED IN HAVING CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN HAVING ADDITION MADE FOR THE D IFFERENCE IN CASH DEPOSITED IN THE BANK AND GROSS RECEIPTS AS PER PRO FIT & LOSS ACCOUNT AMOUNTING TO RS. 4,51,540/- WITHOUT APPRECIATING TH E FACTS OF THE CASE AND IN LAW. II) THE LD CIT(A) ERRED IN HAVING CONFIRMED THE ACT ION OF THE ASSESSING OFFICER IN HAVING ADDING RS. 50,000/- ON AD-HOC BAS IS TO PROFESSIONAL RECEIPTS ASSUMING THAT THE ASSESSEE IS IN HABIT OF RECEIVING THE PROFESSIONAL FEES IN CASH. III) THAT THE CIT(A) ERRED IN HAVING CONFIRMED THE ACTION OF THE ASSESSING OFFICER IN HAVING DISALLOWING RS. 50,000/- ON AD-HO C BASIS OUT OF TRAVELLING, TELEPHONE AND MISCELLANEOUS EXPENSES. IV) THAT THE CIT(A) ERRED IN HAVING CONFIRMED THE A CTION OF THE ASSESSING OFFICER IN HAVING ADDING RS. 72,241/- TOWARDS DRAWI NGS WITHOUT APPRECIATING THE FACTS OF THE CASE AND IN LAW. V) THAT THE LD CIT(A) ERRED IN HAVING CONFIRMED TH E ACTION OF THE ASSESSING OFFICER IN HAVING DISALLOWING RS. 1,54,434/- TOWARD S VARIOUS EXPENSES WITHOUT APPRECIATING THE FACTS OF THE CASE AND IN L AW. VI) THAT IN VIEW OF THE ABOVE SAID REASONS THE ORDE R OF THE CIT(A) IS ARBITRARY, UNWARRANTED AND BEYOND THE SCOPE OF ESTA BLISHED RULES, THE SAME SHOULD BE QUASHED AND YOUR APPELLANT BE GIVEN SUCH RELIEF OR RELIEFS AS PRAYED FOR. VII) THAT THE APPELLANT CRAVES THE LEAVE TO ADD, AM END OR MODIFY OR SUBTRACT ANY GROUNDS OF APPEAL AT ANY STAGE OF HEAR ING. 4 WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY BOTH THE PARTIES AND PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE WAS VERY CASUAL IN HIS A PPROACH AND WAS LEAST BOTHERED TO APPEAR BEFORE THE ASSESSING OFFICER OR BEFORE THE CIT(A). THE CONDUCT OF THE ASSESSEE HAS ALREADY BEEN MENTIONED IN THE EARLIER PARAGRAPHS. 5 ITA NO.1246/MUM/2006 EVEN BEFORE THE TRIBUNAL ALSO THE APPEAL WAS EARLIE R DISMISSED FOR NON PROSECUTION. THEREFORE, WE DO NOT FIND ANY MERIT IN THE ARGUMENTS OF THE LD COUNSEL FOR THE ASSESSEE FOR SETTING ASIDE THE MATT ER. ACCORDINGLY, WE PROCEED TO DECIDE THE ISSUE ON MERIT AFTER HEARING BOTH THE SIDES. 5 IN GROUNDS OF APPEAL 1, THE ASSESSEE HAS CHALLEN GED THE ADDITION OF RS. 4,51,540/- BEING THE DIFFERENCE OF AMOUNT DISCL OSED IN THE P&L ACCOUNT AND THE AMOUNT AS PER THE CASH BOOK AND BANK STATEMENT. 6 IT IS THE SUBMISSION OF THE LD COUNSEL FOR THE AS SESSEE THAT THERE IS SOME TOTALLING ERROR AND THE TOTAL CASH RECEIPT IS ACTUA LLY RS. 7,07,360/- AND NOT RS. 7,86,260/-. WE THEREFORE DIRECT THE ASSESSING OFFIC ER TO VERIFY THE ABOVE CONTENTION OF THE LD COUNSEL FOR THE ASSESSEE AND I N CASE THERE IS SOME TOTALLING ERROR, THE ASSESSING OFFICER SHALL SUBSTITUTE THE C ORRECT AMOUNT AND GIVE APPROPRIATE RELIEF ON ACCOUNT OF DISCREPANCY IN THE CASH RECEIPT. 7 SO FAR AS THE DISCREPANCY IN THE BANK RECEIPTS, T HE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE ARE SOME CONTRA ENTRI ES AND THE LOAN GIVEN EARLIER TO THE WIFE OF THE ASSESSEE HAS BEEN RECEIVED BACK DURING THE YEAR AND CREDITED IN THE BANK ACCOUNT. THUS, ACCORDING TO THE LD COUN SEL, HAS BEEN TREATED AS PROFESSIONAL RECEIPT BY THE ASSESSING OFFICER, WHIC H IS NOT CORRECT. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO VERIFY THE ABOVE CO NTENTION OF THE LD COUNSEL FOR THE ASSESSEE AND AFTER SATISFACTION GIVE APPROPRIAT E RELIEF, IF ANY. THE GROUNDS OF APPEAL NO.1 IS ACCORDINGLY ALLOWED FOR STATISTIC AL PURPOSE. 8 GROUNDS OF APPEAL NO.2 RELATES TO ADDITION OF RS. 50,000/- ON ADHOC BASIS TO PROFESSIONAL RECEIPTS. 6 ITA NO.1246/MUM/2006 9 AFTER HEARING BOTH THE PARTIES, WE FIND THE ASSE SSING OFFICER DISALLOWED AN AMOUNT OF RS. 50,000/- ON AD-HOC BASIS ON THE GROUN D THAT THE ASSESSEE IS RECEIVING SOME PROFESSIONAL RECEIPTS IN CASH AND HE MIGHT NOT HAVE ACCOUNTED THE ENTIRE CASH RECEIPT. HOWEVER, IN ABSENCE OF ANY POSITIVE EVIDENCE, SUCH ADDITION ON ADHOC BASIS, IN OUR CONSIDERED OPINION IS NOT JUSTIFIED. IT IS THE SETTLED PROPOSITION OF LAW THAT PRESUMPTIONS AND SU RMISES, HOWEVER, STRONG MAY BE CANNOT BE BASIS FOR ADDITION IN ABSENCE OF ANY P OSITIVE EVIDENCE (DHAKESWARI COTTON MILLS LTD VS CIT - 26 ITR 775). MERELY B ECAUSE THE ASSESSEE IS RECEIVING A PART OF HIS PROFESSIONAL RECEIPTS IN CASH, THERE CANNOT BE ANY ADDITION ON ADHOC BASIS IN ABSENCE OF ANY POSITIVE MATERIAL. WE, THE REFORE, SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING O FFICER TO DELETE THE DISALLOWANCE OF RS 50,000/-. 10 GROUNDS OF APPEAL NO.3 RELATES TO DISALLOWANCE O F RS. 50,000/- ON ADHOC BASIS OUT OF TRAVELLING, TELEPHONE AND MISCELLANEOU S EXPENSES. 11 ADMITTEDLY, THE ASSESSEE DID NOT FURNISH THE FUL L DETAILS OF VARIOUS EXPENSES. IT IS THE SETTLED PROPOSITION OF LAW FO R THAT CLAIMING ANY EXPENSES AS DEDUCTION, THE ONUS IS ALWAYS ON THE ASSESSEE TO S UBSTANTIATE WITH EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFICER THAT THE SAME HAS BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. IN T HE INSTANT CASE, THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS CAST ON IT. THEREF ORE, THE DISALLOWANCE OF VARIOUS EXPENSES ON ADHOC BASIS, IN OUR OPINION IS JUSTIFIE D. HOWEVER, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE DISALLOWANCE OF R S. 50,000/- APPEARS TO BE ON THE HIGHER SIDE. WE THEREFORE, RESTRICT SUCH DISALLOWAN CE TO RS. 25,000/-. THIS GROUND OF THE ASSESSEE, IS ACCORDINGLY PARTLY ALLOWED. 7 ITA NO.1246/MUM/2006 12 GROUNDS OF APPEAL NO.4 RELATES TO DISALLOWANCE O F RS. 72,241/- TOWARDS DRAWINGS. 12.1 THE ASSESSING OFFICER MADE THE DISALLOWANCE ON ACCOUNT OF PERSONAL DRAWINGS ON THE GROUND THAT WHILE EXPLAINING THE CA SH DEPOSITS IN THE BANK ACCOUNT THE ASSESSEE HAD TAKEN BENEFIT OF SUCH CAS H WITHDRAWALS AND TREATED THE SAME AS CASH DEPOSIT. HE, THEREFORE, MADE THE ADDITION OF RS. 72,241/-. IT IS THE SUBMISSION OF THE LD COUNSEL FOR THE ASSESSEE T HAT SINCE PART OF THE CASH RECEIPT AND BANK DEPOSITS WHICH ARE NOT ACCOUNTED F OR IS BEING ADDED; THEREFORE, THE SAME SHOULD BE TELESCOPED AND NO FURTHER DISALL OWANCE SHOULD BE MADE. 13 WE FIND SOME FORCE IN THE ABOVE ARGUMENTS OF THE LD COUNSEL FOR THE ASSESSEE. SINCE OUT OF CASH DISCREPANCY OF RS. 3,2 8,460/- ADDED BY THE ASSESSING OFFICER, THERE WILL BE A DIFFERENCE OF A BOUT RS. 80,000/- ON ACCOUNT OF TOTALLING MISTAKE AS CLAIMED BY THE LD COUNSEL FOR THE ASSESSEE AND STILL THERE WILL BE AN ADDITION OF AROUND RS. 2,48,000/- WHICH , IN OUR CONSIDERED OPINION, WILL TAKE CASE OF PERSONAL DRAWINGS. WE THEREFORE, DIRE CT THE ASSESSING OFFICER TO TELESCOPE SUCH DRAWINGS FROM THE UNACCOUNTED INCOME AND ADD ONLY, IF THERE IS ANY DIFFERENCE. THIS GROUND IS ACCORDINGLY ALLOWED FOR STATISTICAL PROPOSE. 14 GROUNDS OF APPEAL NO.5, RELATES TO DISALLOWANCE OF RS. 1,54,434/-. 15 WE FIND, THE ASSESSING OFFICER HAD GIVEN A FINDI NG THAT THE ASSESSEE HAD INCURRED EXPENDITURE OF RS. 4,59,908/- AS PER BILLS AND VOUCHERS IN BOTH THE FIRMS WHEREAS IT HAS SHOWN EXPENDITURE OF RS.71,136/- IN M/S RAJNANDINI ENTERTAINMENTS AND RS. 2,34,338/ IN M/S RAJNANDHINI FASHIONS BOTH TOTALLING TO 8 ITA NO.1246/MUM/2006 RS. 3,05,474/-. THEREFORE, THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT THE ASSESSEE HAS SPENT RS. 1,54,234/- IN ADDITION TO TH E EXPENSES IN THE P&L ACCOUNT FOR WHICH HE MADE ADDITION TO THE TOTAL INCOME OF T HE ASSESSEE. IT IS THE SUBMISSION OF THE LD COUNSEL FOR THE ASSESSEE FOR T ELESCOPING OF THIS EXPENSE. HOWEVER, WE DO NOT FIND ANY FORCE IN THE SUBMISSION OF THE LD COUNSEL FOR THE ASSESSEE. THE ASSESSING OFFICER, IN THE INSTANT CA SE HAS MADE ADDITION TO THE TOTAL INCOME ON ACCOUNT OF DISCREPANCY OF CASH RECE IPTS. THE ADDITION WAS MADE ON THE BASIS OF SUCH TOTALLING ETC. THE ASSESSEE, I N OUR OPINION, CANNOT TAKE BENEFIT OF TELESCOPING ON ACCOUNT OF SUCH EXPENDITU RE WHICH ARE NOT AS PER PROFIT & LOSS ACCOUNT. IN THIS VIEW OF THE MATTER THE GRO UND RAISED BY THE ASSESSEE IS DISMISSED. 16 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 23 RD , DAY OF MAR 2011. SD/- SD/- ( (( ( D MANMOHAN D MANMOHAN D MANMOHAN D MANMOHAN ) )) ) VICE PRESIDENT ( (( ( R K PANDA R K PANDA R K PANDA R K PANDA ) )) ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 23 MAR 2011 RAJ* 9 ITA NO.1246/MUM/2006 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI