THE ACIT CENT CIR-33, MUMBAI V. M/S. LYKA LABS LTD, MUMBAI

ITA 1430/MUM/2008

• Counselvise Citation: 143019914 RSA 2008
• Duration Of Justice: 6 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-08-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 27-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS S PADMAJA
• Assessee Lawyers: JAYESH DADIA
• Keywords: Business income; Notional interest; Capital receipt
• Section: 234B; 14A; 115JB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND VIVEK VARMA, (JM) . . , , ./I.T.A. NO.341/MUM/2008 ( / ASSESSMENT YEAR : 2001-02) LYKA LABS LTD 101 SHIV SHAKTI INDUSTRIAL ESTATE, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI-400059 / VS. ASSTT.COMMISSIONER OF INCOME TAX CIRCLE-33, AYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./I.T.A.NO.843/MUM/2008 ( / ASSESSMENT YEAR : 2001-02) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-33, R NO.4A, AYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 / VS. LYKA LABS LTD 101 SHIV SHAKTI INDUSTRIAL ESTATE, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI-400059 ( / APPELLANT) .. ( / RESPONDENT) ./I.T.A. NO.681/MUM/2008 ( / ASSESSMENT YEAR : 2002-03) LYKA LABS LTD 101 SHIV SHAKTI INDUSTRIAL ESTATE, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI-400059 / VS. ASSTT.COMMISSIONER OF INCOME TAX CIRCLE-33, AYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./I.T.A.NO.1430/MUM/2008 ( / ASSESSMENT YEAR : 2002-03) ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-33, R NO.4A, AYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 / VS. LYKA LABS LTD 101 SHIV SHAKTI INDUSTRIAL ESTATE, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI-400059 ( / APPELLANT) .. ( / RESPONDENT) 341-843-681-1430-1630/M/2008 2 ./I.T.A. NO.1630/MUM/2008 ( / ASSESSMENT YEAR : 2004-05) LYKA LABS LTD 101 SHIV SHAKTI INDUSTRIAL ESTATE, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI-400059 / VS. ASSTT.COMMISSIONER OF INCOME TAX CIRCLE-33, AYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AAACLO820G ' / ASSESSEE BY SHRI JAYESH DADIA # ' /REVENUE BY MRS.S PADMAJA $ % # &' / DATE OF HEARING : 14.08.2014 () # &' /DATE OF PRONOUNCEMENT : 5.11.2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE CROSS APPEALS ARE RELATED TO THE ASSESSMENT YEA RS 2001-02 AND 2002-03. THE ASSESSEE HAS ALSO FILED APPEAL FOR AY 2004-05. 2. WE SHALL TAKE UP THE APPEAL FILED BY THE ASSESSE E FOR AY 2001-02. THE GROUNDS URGED BY THE ASSESSEE ARE RELATED TO THE FO LLOWING ISSUES:- (A) TAXABILITY OF RS.10.00 CRORES RECEIVED ON TRAN SFER OF TECHNICAL KNOW- HOW OF PRODUCTS VIZ., ALEX, FLUCORT & SENSUR. (B) TAXABILITY OF RS.10.00 CRORES RECEIVED ON TRAN SFER OF MARKETING KNOW- HOW OF PRODUCTS VIZ., ALEX, FLUCORT & SENSUR. (C) TAXABIILITY OF RS.3.00 CRORES RECEIVED ON TRAN SFER OF SELF GENERATED TRADE MARK NAMED SENSUR. (D) TAXABILITY OF RS.2.25 CRORES RECEIVED AS NON-C OMPETE FEES RELATING TO THE TRANSFER OF THREE BRANDS REFERRED ABOVE. 341-843-681-1430-1630/M/2008 3 (E) TAXABILITY OF RS.2.75 CRORES RECEIVED ON TRANS FER OF BRAND OF ANIMAL HUSBANDARY DIVISION. (F) TAXABILITY OF RS.2.25 CRORES RECEIVED ON TRAN SFER OF MARKETING KNOW HOW (WRONGLY MENTIONED AS NON-COMPETE FEES IN THE G ROUNDS) RELATING TO THE TRANSFER OF BRAND OF ANIMAL HUSBANDARY DIVISIO N. 3. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSIN ESS OF MANUFACTURER AND SALE OF BULK FORMULATIONS OF PHARMACEUTICAL PRODUCT S. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE TRANSFERRED THE TRADE M ARKS, SELF GENERATED TECHNICAL KNOW-HOW, SELF GENERATED MARKETING KNOW-HOW PERTAIN ING TO THE PRODUCTS NAMED ALEX, FLUCORT AND SENSUR TO M/S GLENMARK. THE AS SESSEE HAD ALSO SOLD TRADE MARKS PURCHASED BY IT EARLIER. THE ASSESSEE OFFERE D THE AMOUNT RECEIVED ON SALE OF PURCHASED TRADE MARKS FOR TAXATION. HOWE VER, THE ASSESSEE CLAIMED THAT THE AMOUNT RECEIVED ON SALE OF SELF GENERATED TECHNICAL KNOW-HOW, SELF GENERATED MARKETING KNOW-HOW, SELF GENERATED TRADE MARK AND NON-COMPETE FEE AS EXEMPT FROM TAXATION, SINCE THE SELF GENERATED A SSETS DO NOT HAVE COST. THE ASSESSEE PLACED RELIANCE ON THE DECISION RENDERED B Y HONBLE SUPREME COURT IN THE CASE OF B.C.SREENIVASA SETTY (128 ITR 294) IN T HIS REGARD. HOWEVER, THE AO DID NOT AGREE WITH THE SUBMISSIONS OF THE ASSESSEE. THE AO TOOK THE VIEW THAT ALL THE RECEIPTS CONSTITUTE REVENUE RECEIPTS IN THE HANDS OF THE ASSESSEE AND ACCORDINGLY ASSESSED THEM AS INCOME OF THE ASSESSE E. IN THE APPELLATE PROCEEDING, THE LD CIT(A) ALSO HELD THAT THE RECEIP TS ARE TAXABLE AS REVENUE/BUSINESS RECEIPTS. AGGREIVED, THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. 4. THE FIRST AND SECOND ISSUE RELATES TO THE TAXA BILITY OF RS.10.00 CRORES EACH RECEIVED ON TRANSFER OF TECHNICAL KNOW-HOW AND MAR KETING KNOW HOW OF ALEX, FLUCORT & SENSUR PRODUCTS. THE LD CIT(A) EXAMINED THE AGREEMENT FOR TRANSFER OF TECHNICAL KNOW-HOW IN RESPECT OF THE ABOVE SAID PRODUCTS AND NOTICED THAT THE ASSESSEE HAS ONLY SHARED THE TECHNICAL KNOW-HOW WIT H M/S GLENMARK AND DID NOT TRANSFER THE RIGHT TO USE TECHNICAL INFORMATION (KNOW-HOW). SIMILARLY, IT WAS SEEN THAT THE ASSESSEE HAD ONLY PARTED WITH THE MAR KETING KNOW-HOW AND DID NOT TRANSFER THE SAME. HENCE, THE LD CIT(A) HELD THAT THE SUM OF RS.20.00 CRORES (RS.10.00 CRORES EACH) RECEIVED ON TRANSFER OF TECH NICAL KNOW-HOW AND MARKETING KNOW-HOW IS TAXABLE AS REVENUE RECEIPTS. 341-843-681-1430-1630/M/2008 4 5. THE LD A.R SUBMITTED THAT THE AMOUNT RECEIVED ON TRANSFER OF TECHNICAL KNOW-HOW AND MARKETING KNOW-HOW ARE CAPITAL RECEIPT S SINCE THE ABOVE SAID ASSETS ARE SELF GENERATED ASSETS IN THE HANDS OF TH E ASSESSEE. HE FURTHER SUBMITTED THAT THE ASSESSEE HAD TRANSFERRED THE SCI ENTIFIC KNOW-HOW AND TRADE MARK OF THE PRODUCT CALLED AMLOPIN DURING THE YEA R RELEVANT TO THE AY 1999- 2000. THE TRIBUNAL, VIDE ITS ORDER DATED 10-01-200 7 PASSED IN ITA NO.778/MUM/2003, HAS HELD THAT THE SAID RECEIPT IS NOT TAXABLE. THE LD A.R, HOWEVER FAIRLY SUBMITTED THAT THE TRIBUNAL IN THE A SSESSEES OWN CASE RELATING TO AY 1998-99 REPORTED IN (2008)(20 SOT 541)(MUM) HAS HELD THAT THE AMOUNT RECEIVED ON TRANSFER OF MARKETING KNOW-HOW IS TAXAB LE. THE LD A.R ALSO PLACED RELIANCE ON THE FOLLOWING CASE LAW TO SUBMITTED THA T THE TRANSFER OF SELF GENERATED ASSETS IS NOT TAXABLE. (A) B.C.SRINIVASA SHETTY (128 ITR 249)(SC) (B) PL. CHEMICALS LTD VS. ACIT (2003)(86 ITD 46)( MAD) (C) BASF INDIA LTD VS. ADDL. CIT (2009)(119 ITD 3 37)(MUM). THE LD A.R SUBMITTED THAT THE DECISIONS RENDERED IN THE CASE OF PL. CHEMICALS AND BASF INDIA LTD (SUPRA) ARE RELATED TO TRANSFER OF MARKETING KNOW-HOW AND IT WAS HELD THAT THE SALE CONSIDERATION THEREOF IS NOT TAXABLE AS IT CONSTITUTES CAPITAL RECEIPT NOT EXIGIBLE TO TAXATION IN THOSE YEARS. T HE LD A.R SUBMITTED THAT THE CONSIDERATION RECEIVED ON TRANSFER OF TECHNICAL KNO W WAS MADE TAXABLE ONLY IN SUBSEQUENT YEARS ONLY. 6. ON THE CONTRARY, THE LD D.R PLACED STRONG RELI ANCE ON THE ORDER OF LD CIT(A) AND SUBMITTED THAT THE ASSESSEE HAS ONLY SHA RED THE TECHNICAL KNOW HOW AND MARKETING KNOW-HOW, BUT DID NOT TRANSFER THEM. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE RECORD. ALL THE CASE LAW RELIED UPON BY THE ASSESSEE RELATED TO THE TRAN SFER OF TECHNICAL KNOW-HOW AND MARKETING KNOW-HOW. HOWEVER, IN THE INSTANT CASE, THE LD CIT(A) HAS GIVEN A CLEAR FINDING, AFTER GOING THROUGH THE TERM S OF AGREEMENT ENTERED BY THE ASSESSEE WITH M/S GLENMARK, THAT THE ASSESSEE HAS O NLY SHARED THE TECHNICAL KNOW-HOW AND MARKETING KNOW-HOW, BUT DID NOT TRANSF ER THEM. IT IS A WELL SETTLED PROPOSITION OF LAW THAT THE CONSIDERATION RECEIVED ON CESSATION OF SOURCE OF 341-843-681-1430-1630/M/2008 5 INCOME SHALL CONSTITUTE CAPITAL RECEIPT. IN THE IN STANT CASE, THE FINDINGS GIVEN BY LD CIT(A) SHOW THAT THERE WAS NO CESSATION OF SOURC E OF INCOME. HENCE THE AMOUNT OF RS.20.00 CRORES RECEIVED ON TRANSFER OF T ECHNICAL KNOW-HOW AND MARKETING KNOW-HOW WAS RELATED TO SHARING OF RELEVA NT INFORMATION ONLY AND HENCE THE SAME IS TAXABLE AS REVENUE RECEIPT IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, WE UPHOLD THE ORDER OF LD CIT(A) ON TH IS ISSUE. 8. THE NEXT ISSUE RELATES TO THE TRANSFER OF SELF GENERATED TRADE MARK NAMED SENSUR. THOUGH THE ASSESSEE CLAIMED THAT THE AMO UNT RECEIVED ON TRANSFER OF SELF GENERATED ASSET IS NOT TAXABLE, BOTH THE TAX A UTHORITIES HELD THAT THE ASSESSEE HAS ONLY TRANSFERRED THE GOOD WILL ONLY IN THE NAME OF TRADE MARK AND ACCORDINGLY HELD THAT THE SAME IS SUBJECT TO CA PITAL GAINS TAX. 9. THE LD A.R PLACED RELIANCE ON THE DECISION OF B OMBAY BENCH OF TRIBUNAL IN THE CASE OF KWALILTY FROZEN FOODS LTD (1 SOT 243) T O SUBMIT THAT THE CONSIDERATION RECEIVED ON TRANSFER OF SELF GENERATE D TRADE MARK IS NOT TAXABLE DURING THE YEAR UNDER CONSIDERATION. HE SUBMITTED THAT THE TRANSFER OF SELF GENERATED TRADE MARK WAS MADE TAXABLE FROM AY 2002- 03 ONLY. 10. HOWEVER, THE LD D.R INVITED OUR ATTENTION TO THE ORDER OF LD CIT(A), WHEREIN THE FIRST APPELLATE AUTHORITY HAD HELD THAT THE ASSESSEE HAS TRANSFERRED TRADE MARK WITH GOOD WILL. FURTHER THE LD CIT(A) N OTICED THAT THE VALUATION OF INTANGIBLE RIGHT HAS BEEN DETERMINED MUTUALLY BETWE EN THE ASSESSEE AND THE BUYER, I.E., THE VALUATION WAS NOT DETERMINED BY AN Y REPUTED CONCERN. FURTHER BIFURCATION BETWEEN THE DIFFERENT INTANGIBLE ASSETS WAS ALSO AGREED MUTUALLY. THE LD CIT(A) NOTICED FROM THE DECISION OF TRIBUNAL RENDERED IN THE CASE OF KWALITY FROZEN FOODS LTD (SUPRA) THAT THE TRADE MAR K IS ONLY ONE OF THE COMPONENTS OF GOOD WILL AND HENCE THE TERM GOOD WI LL ALSO INCLUDES TRADE MARK ALSO. SINCE THE TRANSFER OF SELF GENERATED GO OD WILL WAS TAXABLE DURING THE YEAR UNDER CONSIDERATION, THE LD CIT(A) HELD THAT T HE AMOUNT OF RS.3.00 CRORES RECEIVED ON TRANSFER OF TRADE MARK IS TAXABLE AS GO OD WILL. 11. WE NOTICE THAT THE ASSESSEE HAS NOT CONTROVERT ED THE FINDING GIVEN BY THE LD CIT(A) THAT THE ASSESSEE HAS BIFURCATED THE CONS IDERATION BETWEEN DIFFERENT 341-843-681-1430-1630/M/2008 6 INTANGIBLE ASSETS AS MUTUALLY AGREED BETWEEN THE AS SESSEE AND BUYER AND THE SAME IS NOT SUPPORTED BY ANY CREDIBLE EVIDENCE. HO WEVER, ON A READING OF THE DECISION RENDERED BY THE TRIBUNAL IN THE CASE OF KW ALITY FROZEN FOODS LTD (SUPRA), WE NOTICE THAT THE TRIBUNAL HAS HELD THAT THE TERM GOOD WILL CANNOT BE EXTENDED TO TRADE MARK. HOWEVER, WE HAVE NOTICED E ARLIER THAT THE LD CIT(A) HAS RENDERED HIS DECISION ON THE UNDERSTANDING THAT THE GOOD WILL AND TRADE MARK MAY MEAN ONE AND SAME. THUS, THERE IS CLEAR MISUND ERSTANDING ON THE PART OF LD CIT(A). THE ABOVE SAID AMOUNT OF RS.3.00 CRORES PERTAIN TO TRANSFER FO TRADE MARK WITH GOOD WILL. HENCE THE CONSIDERATIONS PERT AINING TO TRADE MARK AND GOOD WILL HAVE TO BE CONSIDERED SEPARATELY. HOWEV ER, THE ASSESSEE HAS NOT GIVEN ANY BASIS FOR BIFURCATION OF THE CONSIDERATIO N BETWEEN TRADE MARK AND GOOD WILL. UNDER THESE CIRCUMSTANCES, IN ORDER T O PUT THE ISSUE TO REST, WE ARE OF THE VIEW THAT THE CONSIDERATION OF RS.3.00 CRORE S BE DIVIDED BETWEEN THE TRADE MARK AND GOOD WILL IN THE RATIO OF 75% AND 25%. WE HAVE ASSIGNED MORE WEIGHTAGE TO THE TRADE MARK ON THE REASONING THAT T HE TRADE NAME OF THE PRODUCT SENSUR SHALL NORMALLY CARRY MORE WEIGHTAGE IN THE COMMERCIAL CIRCLES. THE LD A.R SUBMITTED THAT THE CONSIDERATION RECEIVED ON SE LF GENERATED TRADE MARK WAS MADE TAXABLE FROM AY 2002-03 ONLY. HENCE THE 75% P ORTION OF RS.3.00 CRORES PERTAINING TO TRADE MARK SHALL NOT BE TAXABLE DURIN G THE YEAR UNDER CONSIDERATION. THE BALANCE AMOUNT PERTAINING TO GOOD WILL SHALL BE TAXABLE AS CAPITAL GAINS. WE ORDER ACCORDINGLY. 12. THE NEXT ISSUE RELATES TO THE TAXABILITY OF RS .2.25 CRORES RECEIVED AS NON- COMPETE FEES RELATING TO THE TRANSFER OF THREE BRAN DS REFERRED ABOVE, VIZ., ALEX, FLUCORT & SENSUR. THE AO HELD THAT THE ABOVE SAID AMOUNT IS TAXABLE AS TRANSFER OF GOOD WILL. THE LD CIT(A) NOTICED THAT THE ASSESSEE HAS RECEIVED THE ABOVE SAID AMOUNT FOR AGREEING TO FOREGO THE RIGHT OF MANUFACTURE OF THE ABOVE SAID THREE PRODUCTS FOR A PERIOD OF THREE YEARS. T HE LD CIT(A) ALSO NOTICED THAT THE RIGHT TO MANUFACTURE IS AN ASSET, THE TRANSFE R OF WHICH IS TAXABLE FROM AY 1998-99. ACCORDINGLY, THE LD CIT(A) HELD THAT THE AGREEMENT TERMED AS NON- COMPETE AGREEMENT OF THE ASSESSEE IS IN FACT AN AG REEMENT PERTAINING TO NOT TO MANUFACTURE, PRODUCE OR PROCESS THE PRODUCTS REFER RED ABOVE. THE LD CIT(A) HELD THAT THE VARIOUS CASE LAWS ARE NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE, SINCE THE ASSESSEE HAS AGREED ONLY TO FOREGO ITS RI GHT TO MANUFACTURE FOR A PERIOD 341-843-681-1430-1630/M/2008 7 OF THREE YEARS AND NOT TO STOP THE BUSINESS. ACCOR DINGLY, THE LD CIT(A) HAS UPHELD THE DECISION OF THE AO. 13. HOWEVER, WE NOTICE THAT THE CO-ORDINATE BENCH OF TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE IN THE ASSESSEES OWN CASE RELAT ING TO AY 1998-99 REPORTED IN (2008)(20 SOT 541). IN THAT YEAR, THE ASSESSEE HAD RECEIVED NON-COMPETE FEE FOR NOT COMPETING WITH THE PURCHASER OF THE MARKETI NG KNOW HOW RELATING TO NITRO GLYCERING BASED FORMULATIONS FOR A PERIOD OF FIVE Y EARS. SINCE THERE WAS LOSS OF SOURCE OF INCOME FROM MARKETING OF NITRO GLYCERINE BASED PRODUCTS FOR A PERIOD OF FIVE YEARS, THE TRIBUNAL HELD THAT IT WAS A CAPI TAL RECEIPT. IN THE INSTANT YEAR, THE ASSESSEE EFFECTIVELY LOST THE SOURCE OF INCOME FOR A PERIOD OF THREE YEARS BY ENTERING INTO NON-COMPETE AGREEMENT. BY AGREEING WITH THE BUYER OF THE BRAND NOT TO MANUFACTURE THE ABOVE SAID THREE PRODUCTS, T HE ASSESSEE, IN EFFECT, HAS AGREED NOT TO COMPETE WITH THE BUYER. IN OUR VIEW, RIGHT TO MANUFACTURE IS DIFFERENT FROM AGREEING NOT TO MANUFACTURE, SINCE IN THE LATER CASE THE RIGHT IS STILL RETAINED WITH THE PARTY. ACCORDINGLY, WE ARE OF THE VIEW THE DECISION RENDERED IN THE ASSESSEES OWN CASE IN AY 1998-99, REFERRED SUPRA, IS APPLICABLE IN THE INSTANT YEAR ALSO AND ACCORDINGLY WE HOLD TH AT THE AMOUNT RECEIVED AS NON- COMPETE FEE IS NOT TAXABLE DURING THE YEAR UNDER CO NSIDERATION. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND DIRECT THE AO NOT TO ASSESS THE NON-COMPETE FEE RECEIVED BY THE ASSESSEE. 14. THE NEXT ISSUE RELATES TO THE TAXABILITY OF RS .5.00 CRORES (RS.2.75 CRORES RECEIVED ON TRANSFER OF TRADE MARK AND RS.2.25 CROR ES RECEIVED ON TRANSFER OF MARKETING RIGHT) OF ANIMAL HUSBANDARY DIVISION TO M /S LYKA EXPORTS LTD. THE AO HELD THAT THE CONSIDERATION OF RS.2.75 CRORES WAS R ECEIVED IN RESPECT OF TRANSFER OF GOOD WILL AND THE CONSIDERATION OF RS.2.25 CRORE S RECEIVED ON TRANSFER OF MARKETING RIGHT IS TAXABLE AS BUSINESS RECEIPT. 15. THE LD CIT(A) HAS NOTICED THAT THE AMOUNT OF R S.2.75 CRORES WAS RECEIVED FOR TRANSFER OF TRADE MARKS WITH GOOD WILL. WHILE CONSIDERING AN IDENTICAL ISSUE IN RESPECT OF TRANSFER OF PRODUCT NAMED SENSUR, WE H AVE HELD THAT THE CONSIDERATION CAN BE BIFURCATED BETWEEN TRADE MARK AND GOOD WILL IN THE RATIO OF 75% AND 25% ON THE REASONING THAT THE TRADE NAME GENERALLY CARRY MORE 341-843-681-1430-1630/M/2008 8 WEIGHT IN TRADE CIRCLES. WE ARE OF THE VIEW THAT T HE SAME RATIO CAN BE APPLIED IN THE INSTANT ISSUE ALSO IN ORDER TO PUT THE DISPUTE AT REST. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) AND DIRECT THE AO TO B IFURCATE THE AMOUNT OF RS.2.75 CRORES BETWEEN TRADE MARK AND GOOD WILL IN THE RATIO OF 75% AND 25% RESPECTIVELY. THE CONSIDERATION RECEIVED ON TRANSF ER OF TRADE MARK SHALL NOT BE TAXABLE DURING THE YEAR UNDER CONSIDERATION AND THE CONSIDERATION RECEIVED ON TRANSFER OF GOOD WILL IS TAXABLE UNDER THE HEAD CA PITAL GAINS. WE ORDER ACCORDINGLY. 16. THE AMOUNT OF RS.2.25 CRORES RECEIVED ON TRANS FER OF MARKETING KNOW-HOW IS TAXABLE, SINCE THE TRIBUNAL IN THE ASSESSEES OW N CASE RELATING TO AY 1998-99 REPORTED IN 20 SOT 541 HAS HELD THAT THE IDENTICAL AMOUNT RECEIVED IN THAT YEAR IS TAXABLE, SINCE THE ASSESSEE HAS ONLY PARTED WITH TH E INFORMATION. SINCE THE FACTS ARE IDENTICAL, WE ALSO HOLD THAT THE AMOUNT OF RS.2 .25 CRORES REFERRED ABOVE IS TAXABLE AS REVENUE RECEIPT. ACCORDINGLY, WE UPHOLD THE ORDER OF LD CIT(A) ON THIS ISSUE. 17. WE SHALL NOW TAKE UP THE APPEAL FILED BY THE RE VENUE, WHEREIN FOLLOWING TWO ISSUES ARE URGED BEFORE US:- (A) DISALLOWANCE OF INTEREST EXPENDITURE U/S 14A OF THE ACT. (B) ASSESSMENT OF NOTIONAL INTEREST ON THE DEPOSI T OF RS.75 LAKHS GIVEN. 18. THE FACTS RELATING TO THE DISALLOWANCE MADE U/ S 14A ARE STATED IN BRIEF. THE AO NOTICED THAT THE ASSESSEE HAD INVESTED A SUM OF RS.1,42,46,850/- IN EQUITY SHARES. THE ASSESSEE HAD BORROWED FUNDS AND PAID INTEREST THEREON. HENCE, BY APPLYING THE PROVISIONS OF SEC. 14A, THE AO DISALLOWED A SUM OF RS.17,56,637/- OUT OF THE INTEREST EXPENDITURE CLAI MED BY THE ASSESSEE. THE LD CIT(A) NOTICED THAT THE ASSESSEE HAD INVESTED RS.1. 25 CRORES DURING THE YEARS RELEVANT TO THE AY 1994-95 AND 1995-96. IN THOSE Y EARS, THE ASSESSEE WAS HAVING OWN FUNDS TO THE TUNE OF RS.25.80 CRORES. F URTHER THE LD CIT(A) NOTICED THAT THE AO HAS FAILED TO ESTABLISH THE NEXUS BETWE EN BORROWED FUNDS AND INVESTMENT. HENCE THE LD CIT(A) DELETED THE ADDITI ON. THE REVENUE IS AGGRIEVED BY THIS DECISION. 341-843-681-1430-1630/M/2008 9 19. THE LD D.R SUBMITTED THAT THE ONUS TO SHOW TH AT THE BORROWED FUNDS WERE NOT USED TO MAKE INVESTMENTS IS PLACED UPON THE ASS ESSEE. HENCE THE LD CIT(A) WAS NOT JUSTIFIED IN FINDING FAULT WITH THE AO. ON THE CONTRARY, THE LD A.R PLACED RELIANCE ON THE DECISION RENDERED BY THE JUR ISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF CIT VS. HDFC BANK IN INCOME TAX APPE AL NO.330 OF 2012 DATED 23-07-2014 TO SUPPORT THE VIEW TAKEN BY LD CIT(A). 20. WE HEARD THE PARTIES ON THIS ISSUE. THE LD CI T(A) HAS NOTICED THAT THE ASSESSEE HAD INVESTED A SUM OF RS.1.25 CRORES IN TH E YEARS RELEVANT TO THE AY 1994-95 AND 1995-96 AND IN THOSE YEARS, THE ASSESSE E HAD OWN FUNDS TO THE TUNE OF RS.25.80 CRORES. THESE FACTUAL FINDINGS HA VE NOT BEEN CONTROVERTED BY THE REVENUE. SINCE THE LD CIT(A) HAS RENDERED HIS DECISION BY CONSIDERING THE FACTS PREVAILING IN THE INSTANT CASE, WE DO NOT FIN D ANY REASON TO INTERFERE WITH HIS DECISION ON THIS ISSUE. 21. THE NEXT ISSUE RELATES TO THE ASSESSMENT OF N OTIONAL INTEREST ON THE DEPOSIT OF RS.75.00 LAKHS GIVEN TOWARDS FLAT TAKEN IN RENT FOR THE RESIDENCE OF THE MANAGING DIRECTOR OF THE ASSESSEE COMPANY. WE NOTI CE THAT THE CO-ORDINATE BENCH OF TRIBUNAL HAS CONSIDERED IDENTICAL ISSUE IN THE ASSESSEES OWN CASE IN ITA NO.2146/MUM/2008 AND ITA NO.2147/MUM/2008 RELAT ING TO THE AY 2003-04 AND 2004-05 AND HAS UPHELD THE ORDER OF THE LD CIT( A) IN DELETING THE NOTIONAL INTEREST ASSESSED IN THOSE YEARS. WE NOTICE THAT T HE TRIBUNAL HAD PLACED RELIANCE ON THE DECISION RENDERED IN EARLIER YEARS IN THE FOLLOWING APPEALS:- (A) ITA NO.223/MUM/2003 DATED 19-01-2006 (B) ITA NOS. 40/MUM/04 & 8172/MUM/2003 DATED 23.1 1.2007 (C) ITA NO.995/2008 DATED 30-03-2009. RESPECTFULLY FOLLOWING THE ABOVE SAID DECISIONS, WE UPHOLD THE ORDER OF LD CIT(A) ON THIS ISSUE. 22. WE SHALL NOW TAKE UP THE APPEAL FILED BY TH E ASSESSEE FOR AY 2002-03, IN WHICH FOLLOWING ISSUES ARE CONTESTED:- A) TAXABILITY OF NON-COMPETE FEE OF RS.10.00 CRORE S (B) TAXABILITY OF RS.7.40 CRORES RECEIVED ON TRANS FER OF SCIENTIFIC KNOW-HOW AND TECHNICAL INFORMATION. 341-843-681-1430-1630/M/2008 10 23. THE FIRST ISSUE RELATES TO THE TAXABILITY OF NON-COMPETE FEE OF RS.10.00 CRORES RECEIVED BY THE ASSESSEE. DURING THE YEAR U NDER CONSIDERATION, THE ASSESSEE COMPANY ALONG WITH M/S USV LTD FORMED A JO INT VENTURE COMPANY NAMED M/S LYKA HETERO HEALTHCARE LIMITED (LHHCL), V IDE AGREEMENT DATED 12.3.2002, THEREBY TRANSFERRING ITS DOMESTIC ACTIVI TIES TO ITS NEWLY FORMED JOINT VENTURE COMPANY. THE ASSESSING OFFICER HAS NOTICED THAT THE ASSESSEE COMPANY HOLDS 49% OF THE TOTAL EQUITY SHARES OF THE NEWLY F ORMED COMPANY. THE ASSESSEE RECEIVED NON-COMPETE FEE OF RS.10.00 CRORES FROM TH E ABOVE SAID COMPANY FOR AGREEING NOT TO COMPETE WITH LHHCL IN THE MARKETING , DISTRIBUTION AND SALE OF 20 REGISTERED AND 36 UNREGISTERED ALLOPATHIC PHARMACEU TICAL FORMULATIONS (HEREINAFTER REFERRED AS PRODUCTS). THE AO ASSES SED THE SAME AS BUSINESS RECEIPTS. THE LD CIT(A) ALSO HELD THAT THE SAME IS ASSESSABLE AS BUSINESS RECEIPTS. 24. WE NOTICE THAT THE LD CIT(A) HAS COME TO THE C ONCLUSION THAT THE AMOUNT OF RS.10.00 CRORES IS TAXABLE AS BUSINESS RECEIPTS ON THE GROUND THAT THE RESTRICTION SHALL APPLY TILL SUCH TIME THE ASSESSEE HOLDS 26% OF THE TOTAL ISSUED AND PAID EQUITY SHARE CAPITAL OF LHHCL. BUT WE HAV E NOTICED THAT THE ASSESSING OFFICER HIMSELF HAS OBSERVED THAT THE ASSESSEE HOLD S 49% OF THE EQUITY CAPITAL OF LHHCL. BEFORE US, THE ASSESSEE HAS PLACED RELIANC E ON THE FOLLOWING CASE LAW:- (A) GULF CHEMICALS PVT LTD (322 ITR 602)(SC) (B) HYDERABAD SPECIAL BENCH DECISION IN THE CASE OF D.V.RAJU (C) KARNATAKA HIGH COURT DECISION REPORTED IN 360 ITR 614. AS PER THE AGREEMENT DATED 12-03-2002, THE NON-COMP ETITION CLAUSE IS APPLICABLE TILL SUCH TIME THE ASSESSEE COMPANY HOLD S 26% OF THE TOTAL ISSUED AND PAID EQUITY SHARE CAPITAL OF LHHCL. HOWEVER, IT IS REQUIRED TO BE SEEN AS TO HOW LONG THE RESTRICTION ON COMPETITION WAS IN FORCE. IN THE IMMEDIATELY PRECEDING YEAR, WE HAVE HELD THAT THE NON-COMPETE FEE RECEIVE D FOR AGREEING NOT TO COMPETE FOR THREE YEARS IS CAPITAL RECEIPT AND HENC E NOT TAXABLE. SINCE THE FACT PERTAINING TO THIS ISSUE HAVE NOT BEEN PROPERLY BRO UGHT OUT, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION. ACCORD INGLY, WE SET ASIDE THIS ISSUE TO THE FILE OF AO WITH THE DIRECTION TO EXAMINE THIS I SSUE AFRESH BY DULY CONSIDERING 341-843-681-1430-1630/M/2008 11 THE CONTENTIONS OF THE ASSESSEE AND THE CASE LAWS C ITED BY IT AND TAKE APPROPRIATE DECISION IN ACCCORDANCE WITH LAW. ACCOR DINGLY THE ORDER OF LD CIT(A) ON THIS ISSUE IS SET ASIDE. 25. THE NEXT ISSUE RELATES TO THE TAXABILITY OF RS .7.40 CRORES RECEIVED ON TRANSFER OF SCIENTIFIC KNOW-HOW AND TECHNICAL INFOR MATION. THE LD CIT(A) HAS GIVEN A FINDING THAT THE ASSESSEE HAS ONLY SHARED T HE INFORMATION AND NOT TRANSFERRED ANY RIGHT TO LHHCL. ACCORDINGLY, THE L D CIT(A) HAS HELD THAT THE ABOVE SAID AMOUNT OF RS.7.40 CRORES IS TAXABLE AS B USINESS RECEIPT. UNDER IDENTICAL SET OF FACTS, WE HAVE UPHELD THE VIEW TAK EN BY THE LD CIT(A) IN THE IMMEDIATELY PRECEDING YEAR. WE HAVE ALSO FOLLOWED THE CO-ORDINATE BENCH DECISION RENDERED FOR AY 1998-99. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE UPHOLD THE VIEW TAKEN BY LD CIT(A) ON THIS ISSUE. 26. WE SHALL NOW TAKE UP THE APPEAL FILED BY THE REVENUE, WHEREIN FOLLOWING ISSUES ARE CONTESTED. (A) DISALLOWANCE OF INTEREST EXPENDITURE U /S 14A OF THE ACT. (B) ASSESSMENT OF NOTIONAL INTEREST ON THE DEPOSIT OF RS.75 LAKHS GIVEN. IDENTICAL ISSUES WERE CONSIDERED BY IS IN AY 2001-0 2 IN THE PRECEDING PARAGRAPHS. WE NOTICE THAT THE FACTS ARE ALSO IDEN TICAL BETWEEN AY 2001-02 AND THE YEAR UNDER CONSIDERATION. HENCE FOLLOWING THE VIEW TAKEN IN AY 2001-02, WE UPHOLD THE ORDER OF LD CIT(A) ON THE ABOVE SAID TWO ISSUES. 27. WE SHALL NOW TAKE UP THE APPEAL FILED BY THE A SSESSEE FOR AY 2004-05, WHEREIN FOLLOWING ISSUES ARE CONTESTED:- (A) DISALLOWANCE MADE U/S 14A OF THE ACT. (B) TAXABILITY OF RS.20.00 CRORES RECEIVED ON TRA NSFER OF MARKETING RIGHTS AND TECHNICAL KNOW HOW. (C) CHARGEABILITY OF INTEREST U/S 234B OF THE ACT ON THE INCOME COMPUTED U/S 115JB OF THE ACT. (D) INCLUSION OF RS.20.00 CRORES REFERRED IN (B) ABOVE WHILE COMPUTING BOOK PROFIT U/S 115JB OF THE ACT. 28. THE FIRST ISSUE RELATES TO THE DISALLOWANCE MA DE U/S 14A OF THE ACT. THE AO NOTICED THAT THE ASSESSEE HAD TOTAL INVESTMENT O F RS.10.44 CRORES IN EQUITIES, WHICH INCLUDED RS.9.80 CRORES INVESTED IN JOINT VEN TURE COMPANY. A SUM OF 341-843-681-1430-1630/M/2008 12 RS.64,17,300/- WAS MADE PRIOR TO 1.4.2001. THE AO DISALLOWED A SUM OF RS.9,62,595/- COMPUTED AT 15% OF RS.64,17,300/- U/S 14A OF THE ACT OUT OF THE INTEREST CLAIM MADE BY THE ASSESSEE. THE LD CIT(A) HELD THAT THE INVESTMENT HAS BEEN MADE OUT OF BORROWED FUNDS. ACCORDINGLY, THE LD CIT(A) HELD THAT THE INTEREST DISALLOWANCE SHOULD BE CALCULATED ON THE I NVESTMENT OF RS.9.80 CRORES MADE IN THE JOINT VENTURE COMPANY ALSO. ACCORDINGL Y THE LD CIT(A) ENHANCED THE DISALLOWANCE U/S 14A OF THE ACT TO RS.1,47,00,0 00/-. 29. THE LD COUNSEL SUBMITTED THAT THE ASSESSEE H AD MADE INVESTMENT OF RS.9.80 CRORES IN THE JOINT VENTURE COMPANY (JVC) O UT OF THE FUNDS RECEIVED FROM THE VERY SAME JVC. WE ALSO NOTICE THAT THE ASSESSE E HAD RECEIVED 42.50 CRORES FROM THE JOINT VENTURE COMPANY NAMED M/S LYKA BDR I NTERNATIONAL LTD DURING THE YEAR UNDER CONSIDERATION ON TRANSFER OF KNOW HO W, NON-COMPETE FEE ETC. WE NOTICE THAT THE TAX AUTHORITIES HAVE NOT EXAMINED T HIS FACTUAL ASPECT VIS--VIS CONTENTION OF THE ASSESSEE. THE LD A.R ALSO SUBMI TTED THAT THE INVESTMENT OF RS.64,17,300/- MADE PRIOR TO 1.4.2001 WAS ALSO MADE OUT OF OWN FUNDS, WHICH WAS ALSO NOT EXAMINED BY THE TAX AUTHORITIES. ACCO RDINGLY, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE E ND OF THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE SAME AFRES H BY HAVING REGARD TO THE ACCOUNTS OF THE ASSESSEE AND ALSO BY DULY CONSIDERI NG THE EXPLANATION OF THE ASSESSEE. 30. THE NEXT ISSUE RELATES TO THE TAXABILITY OF RS .20.00 CRORES CLAIMED TO HAVE BEEN RECEIVED ON TRANSFER OF MARKET INFORMATION AND TECHNICAL KNOW HOW. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE TRANSFER RED ITS EXPORT BUSINESS TO A NEWLY FORMED JOINT VENTURE COMPANY NAMED LYKA BDR I NTERNATIONAL LTD AND RECEIVED A SUM OF RS.42.50 CRORES, WHICH INCLUDED A SUM OF RS.20.00 CRORES TOWARDS MARKET INFORMATION/TECHNICAL KNOW-HOW & NON -COMPETE FEES. THE ASSESSEE CLAIMED THE SAME TO BE CAPITAL RECEIPT. T HE AO DID NOT AGREE WITH THE ASSESSEE AND ACCORDINGLY ASSESSED THE ABOVE SAID AM OUNT OF RS.20.00 CRORES AS BUSINESS INCOME OF THE ASSESSEE. THE LD CIT(A) NOTICED THAT THE ASSESSEE HAS ONLY AGREED NOT TO CARRY OUT BUSINESS OF EXPORT OF CERTAIN PRODUCTS. HOWEVER, THERE WAS NO MENTION IN THE AGREEMENT THAT ANY CONSIDERATION HAS 341-843-681-1430-1630/M/2008 13 BEEN RECEIVED BY THE ASSESSEE FOR TRANSFER OF MARKE TING INFORMATION AND TECHNICAL KNOW HOW. THE LD CIT(A) NOTICED THAT THE AGREEMENT DID NOT RESTRICT THE ASSESSEE TO MANUFACTURE AND MARKET THE PRODUCTS WITHIN INDIA. FURTHER, THERE WAS NO RESTRICTION FOR THE ASSESSEE TO CARRY ON EXPORT BUSINESS IN RESPECT OF THOSE PRODUCT WHICH ARE NOT DEALT WITH BY THE JOINT VENTURE COMPANY. 31. FURTHER, THE LD CIT(A) HAS NOTICED THE AMENDME NT MADE BY FINANCE ACT 2002 IN SEC. 55(2) OF THE ACT BY INSERTING THE WORD S RIGHT TO CARRY ON ANY BUSINESS. HENCE THE CONSIDERATION RECEIVED FOR TR ANSFERRING THE RIGHT TO CARRY ON BUSINESS IS TAXABLE FROM AY 2003-04 ONWARDS EVEN IF SUCH ASSET WAS SELF GENERATED. ACCORDINGLY, THE LD CIT(A) HAS HELD THA T CONSIDERATION RECEIVED BY THE ASSESSEE IS TAXABLE UNDER THE HEAD CAPITAL GAI NS. THE LD CIT(A), IN THE ALTERNATIVE, HELD THAT THE ASSESSEE HAS NOT COMPLET ELY STOPPED EXPORT BUSINESS, I.E., THE ASSESSEE WAS DEBARRED FROM EXPORTING ONLY CERTAIN PRODUCTS. ACCORDINGLY, THE LD CIT(A) EXPRESSED THE VIEW THAT THE SOURCE OF INCOME RELATING TO EXPORT ACTIVITIES HAS NOT EXTINGUISHED. ACCORDI NGLY, THE LD CIT(A) UPHELD THE VIEW OF THE AO THAT THE IMPUGNED RECEIPT IS TAXABLE AS REVENUE RECEIPTS. 32. WE HAVE HEARD THE RIVAL CONTENTIONS. THOUGH THE LD A.R CONTENDED THAT THE IMPUGNED RECEIPT OF RS.20.00 CRORES IS CAPITAL RECEIPT, YET WE ARE NOT CONVINCED WITH THE SAID CONTENTIONS IN VIEW OF THE DETAILED FINDING GIVEN BY THE LD CIT(A) BY CONSIDERING THE VARIOUS CLAUSES OF THE AG REEMENT. FURTHER, THE LD CIT(A) HAS POINTED OUT THAT THE EXPORT SOURCE OF BU SINESS HAS NOT BEEN EXTINGUISHED. HENCE, WE AGREE WITH THE VIEWS EXPRE SSED BY LD CIT(A) ON THIS ISSUE AND ACCORDINGLY UPHOLD HIS ORDER ON THIS ISSU E. 33. THE NEXT ISSUE RELATES TO THE CHARGEABILITY OF INTEREST U/S 234B OF THE ACT. THE LD A.R SUBMITTED THAT THE DECISION OF THE SUPRE ME COURT IN THE CASE OF CIT VS. ROLTA INDIA LTD (2011) (330 ITR 470) HAS BEEN R ENDERED ON 7 TH JANUARY, 2011. HE SUBMITTED PRIOR TO THIS DATE, THE DECISIO N RENDERED IN THE CASE OF CIT VS. KWALITY BISCUITS LTD (2006)(284 ITR 434) PREVAI LED ACCORDING TO WHICH NO INTEREST U/S 234B IS CHARGEABLE FOR NON-PAYMENT OF MINIMUM ALTERNATIVE TAX. ACCORDINGLY THE LD A.R SUBMITTED THAT THE DECISION OF KWALITY BISCUITS LTD SHALL BE APPLICABLE TO THE YEAR UNDER CONSIDERATION AND HENC E THE AO WAS NOT JUSTIFIED IN 341-843-681-1430-1630/M/2008 14 CHARGING INTEREST U/S 234B OF THE ACT FOR NON PAYME NT OF MAT TAX U/S 115JB OF THE ACT. THE LD A.R ALSO PLACED RELIANCE ON THE FO LLOWING TRIBUNAL DECISIONS:- (A) ROCKLINE DEVELOPERS P LTD VS. ITO (2014)( 31 ITR (TRIB) 123 (MUM) (B) CHARBHUJA INDUSTRIES P LTD VS. ADDL CIT ( 2014)(31 ITR (TRIB) 89(MUM) 34. HOWEVER, WE ARE UNABLE TO AGREE WITH THE CONTE NTIONS OF LD A.R. THE DECISION IN THE CASE OF KWALITY BISCUITS LTD (SUPRA ) WAS RENDERED IN THE CONTEXT OF SEC. 115J OF THE ACT, WHEREAS THE DECISION IN THE C ASE OF ROLTA INDIA LTD WAS RENDERED IN THE CONTEXT OF SEC. 115JA/115JB OF THE ACT. THE PROVISIONS OF SEC. 115JA/115JB CONTAIN SAVING CLAUSE, VIZ., SEC. 115JA (4) AND SEC. 115JB(5), WHERE AS THE PROVISIONS OF SEC. 115J DOES NOT CONTA IN THE SAME. HENCE, THE DECISION RENDERED UNDER SEC. 115, IN OUR VIEW, WILL NOT APPLY TO THE PROVISIONS OF SEC. 115JA/115JB OF THE ACT. FURTHER, THE HONBLE SUPREME COURT DOES NOT ENACT ANY LAW, BUT IT ONLY INTERPRETS THE LAW, MEAN ING THEREBY THE INTERPRETATION GIVEN BY THE HONBLE SUPREME COURT SHALL BE APPLICA BLE FROM THE DATE OF INCEPTION OF THE RELEVANT PROVISION. ACCORDINGLY, WE ARE OF THE VIEW THAT THE TAX AUTHORITIES ARE JUSTIFIED IN CHARGING INTEREST U/S 234B OF THE ACT FOR NON-PAYMENT OR UNDER PAYMENT OF ADVANCE TAX ON MAT TAX PAYABLE U/S 115JA/115JB OF THE ACT. 35. THE LAST ISSUE RELATES TO VALIDITY OF INCLUDIN G RS.20.00 CRORES CLAIMED TO HAVE BEEN RECEIVED ON TRANSFER OF MARKETING RIGHTS AND TECHNICAL KNOW-HOW IN THE BOOK PROFIT COMPUTED U/S 115JB OF THE ACT. THE ASS ESSEE CLAIMS THAT THE ABOVE SAID AMOUNT IS TO EXCLUDED FROM THE BOOK PROFITS, S INCE THE SAME CONSTITUTES CAPITAL RECEIPT. THE SAID CLAIM WAS REJECTED BY TH E TAX AUTHORITIES. 36. WE ARE INCLINED TO CONFIRM THE VIEW TAKEN BY T HE TAX AUTHORITIES ON TWO COUNTS, VIZ., (A) THE IDENTICAL RECEIPTS HAVE BEEN HELD TO BE REVENUE RECEIPT BY US ALSO IN AN EARLIER YEAR. (B) IT IS NOTICED THAT TH E ASSESSEE ITSELF HAS DISCLOSED THE SAME IN ITS PROFIT AND LOSS ACCOUNT COMPUTED UNDER THE COMPANIES ACT. ACCORDINGLY, WE REJECT THIS GROUND OF THE ASSESSEE. 341-843-681-1430-1630/M/2008 15 37. IN THE RESULT, THE APPEALS FILED BY THE ASSESS EE FOR AY 2001-02 AND 2002- 03 ARE PARTLY ALLOWED. THE APPEAL OF THE ASSESSEE FOR AY 2004-05 IS TREATED AS PARTLY ALLOWED. BOTH THE APPEALS FILED BY THE REVE NUE ARE DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT O N 5TH NOV , 2014. () $ * +, 5TH NOV, 2014 ) # -% . SD SD ( / VIVEK VARMA) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER $ % MUMBAI: 5TH NOV,2014. . . ./ SRL , SR. PS !'# $#%! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ /& ( ) / THE CIT(A)- CONCERNED 4. $ /& / CIT CONCERNED 5. 0- &1 , ' 1 , $ % / DR, ITAT, MUMBAI CONCERNED 6. -2 3% / GUARD FILE. 4 $ / BY ORDER, TRUE COPY 5 (ASSTT. REGISTRAR) ' 1 , $ % /ITAT, MUMBAI