Asst.CIT, Circle -10(1), Hyderabad V. M/s Modi Ventures, Secunderabad

ITA 1529/HYD/2012

• Counselvise Citation: 152922514 RSA 2012
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S RAMA RAO
• Keywords: Business income; Transfer pricing
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. 1529/HYD/2012 ASSESSMENT YEAR 2009-10 THE ASST. CIT CIRCLE-10(1) HYDERABAD VS. M/S. MODI VENTURES SECUNDERABAD PAN: AAJFM0646D APPELLANT RESPONDENT APPELLANT BY: SRI SOLGY JOSE T. KOTTARAM RESPONDENT BY: SRI S. RAMA RAO DATE OF HEARING: 01.07.2014 DATE OF PRONOUNCEMENT: 27 .0 8. 2014 ORDER PER ASHA VIJAYARAGHAVAN, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-VI, HYDERABAD DATED 30.07.2012 FOR ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT. DURING THE YEAR IT HAD RE TURNED INCOME FROM DEVELOPMENT OF A HOUSING PROJECT BY NAM E 'GULMOHAR GARDENS' AT MALLAPUR VILLAGE ON AN AREA O F 4 ACRES OF WHICH 2 ACRES 23.85 GUNTAS WAS OWNED BY TH E ASSESSEE WHILE THE BALANCE 1 ACRE 16.15 GUNTAS WAS GIVEN BY M/S. SAI BUILDERS. THE APPROVALS OF THE PROJECT HAD BEEN APPLIED FOR AND WERE GRANTED TO M/S. SAI BUILD ERS. THE PROJECT WAS BEING DEVELOPED UNDER A JOINT DEVELOPMENT AGREEMENT WITH M/S. SAI BUILDERS UNDER WHICH THE ENTIRE LAND WAS TO BE DEVELOPED AS ONE HO USING PROJECT WITH CONSTRUCTED AREA OF 95,775 SQUARE FEET (SFT) IN 2 ITA NO. 1529/HYD/2012 M/S. MODI VENTURES ================== PHASE-I OF WHICH 27,775 SFT PERTAINED TO THE SHARE OF M/S. SAI BUILDERS AND THE BALANCE TO THE ASSESSEE. AS P ER THE AGREEMENT THE ASSESSEE HAD BEEN ASSIGNED THE ROLE O F PROJECT LEADER ENTRUSTED WITH DEVELOPMENT OF THE EN TIRE PROJECT INCLUDING THE SHARE OF M/S. SAI BUILDERS FO R WHICH M/S. SAI BUILDERS HAD AGREED TO PAY A SUM OF RS. 30 0 PER SFT FOR THE CONSTRUCTED AREA FALLING TO ITS SHARE A S COST OF CONSTRUCTION TO THE ASSESSEE. 3. THE ASSESSING OFFICER FOUND THAT AS AGAINST THE AMOUNT OF RS. 300 PER SFT PAYABLE BY M/S. SAI BUILD ERS, THE ACTUAL EXPENDITURE FOR THE ASSESSEE WAS RS. 849 .42 PER SFT. THE AO HELD THAT THERE WAS NO REASON FOR THE ASSESSEE TO CHARGE M/S. SAI BUILDERS AT THE LOW RAT E OF RS. 300 PER SFT WHEN THE COST OF CONSTRUCTION WAS RS. 8 49.42 PER SFT AND HENCE IT WAS NOT A GENUINE BUSINESS ARRANGEMENT BUT ONLY A DEVICE FOR MINIMISING THE TA X LIABILITY OF THE ASSESSEE. THE AO MADE THE FOLLOWI NG CALCULATION: TOTAL COST OF CONSTRUCTION RS. 8,13,53,031 COST OF CONSTRUCTION RELATING TO SHARE OF M/S. SAI BUILDERS RS. 2,27,43,220 PAYMENT TO ASSESSEE BY M/S. SAI BUILDERS @ RS. 300 PER SFT RS. 80,32,500 LOSS RS. 1,47,10,720 4. THE AO RELIED ON THE JUDGEMENT OF SUPREME COURT IN THE CASE OF LACHMINARAYAN MADANLAL VS. CIT (86 I TR 439) (SC). THE AO HELD THAT THE EXPENDITURE CHARGE D TO M/S. SAI BUILDERS SHOULD BE THE SAME AS THE EXPENDI TURE CHARGED TO ANY OTHER CUSTOMER I.E., AT ARMS' LENGTH PRICE AND TREATED THE DIFFERENCE OF RS. 1,47,10,720 AS 3 ITA NO. 1529/HYD/2012 M/S. MODI VENTURES ================== SUPPRESSION OF RECEIPTS. AGGRIEVED, THE ASSESSEE P REFERRED AN APPEAL BEFORE THE CIT(A). 5. BEFORE THE CIT(A), THE AR SUBMITTED THAT THERE WAS NO EVIDENCE OF SUPPRESSION OF RECEIPTS OVER AND ABO VE WHAT WAS RECORDED IN THE BOOKS AND THAT THE ASSESSI NG OFFICER'S CONCLUSIONS WERE BASED ON PRESUMPTIONS. T HE AR FURTHER SUBMITTED THAT THE RATE OF RS. 300/- HAD BEEN FIXED AFTER DUE DELIBERATIONS ON THE BASIS OF THE C ONDITIONS AT THAT TIME AND THE SUBSEQUENT EVENTS LEADING TO ESCALATION IN THE ACTUAL COST CANNOT BE A GROUND TO TREAT THE JOINT DEVELOPMENT AGREEMENT AS A DEVICE TO MINI MIZE THE TAX LIABILITY. THE AR ALSO SUBMITTED THAT THE R ATE OF RS. 300/- PER SFT MAY AT BEST BE TAKEN AS A BAD BUSINES S DECISION BUT NOT WITH A VIEW TO INCUR LOSS. THE AR FURTHER SUBMITTED THAT DESPITE THE LOSS ON ACCOUNT OF THE R ATE OF RS. 300/- PER SFT CHARGED FROM M/S. SRI SAI BUILDER S, THE ASSESSEE HAD RETURNED GROSS PROFIT OF 25% AND NET P ROFIT OF 19%. THE AR ALSO DISPUTED THE RATE OF RS. 849.42 PER SFT WHICH INCLUDED THE ESTIMATED PROFITS DECLARED I N EARLIER YEARS DURING THE CONSTRUCTION STAGE OF THE PROJECT AND SUBMITTED THAT THE ACTUAL COST OF CONSTRUCTION WAS RS. 681/- ONLY. THE AR FURTHER SUBMITTED THAT THE FACTS IN THE CASE OF LACHMINARAYAN MADANLAL WERE DISTINGUISHABLE AND THE RELIANCE OF THE ASSESSING OFFICER ON THIS D ECISION WAS MISPLACED. 6. THE CIT(A) HELD THAT THE TERM 'ARMS LENGTH PRICE' I S NOT STRICTLY APPLICABLE OR RELEVANT FOR THE FACTS O F THE PRESENT CASE IN AS MUCH AS THERE ARE NO INTERNATION AL TRANSACTIONS INVOLVED. SIMILAR PROVISIONS RELEVANT TO DOMESTIC TRANSACTIONS CAN BE FOUND IN SEC. 40A(2). 4 ITA NO. 1529/HYD/2012 M/S. MODI VENTURES ================== HOWEVER, THIS PROVISION IS ALSO NOT APPLICABLE SINC E THE TRANSACTION HAS NOT TAKEN PLACE BETWEEN PERSONS REF ERRED TO IN CLAUSE (B) OF SEC. 40A(2). THE CIT(A) POINTED OUT THAT THE ONLY RELEVANT PROVISION TO BE CONSIDERED IN THE PRESENT CASE IS SEC. 80IA(10) R.W.S. 80IB(13) AND THERE IS NOTHING ON RECORD TO SHOW THAT THERE IS ANY CLOSE CONNECTIO N BETWEEN THE ASSESSEE AND M/S. SAI BUILDERS. FURTHE R, HE HELD THAT SEC. 80IA( 10) APPLIES TO A CASE WHERE TH E BUSINESS TRANSACTIONS HAVE BEEN ARRANGED IN A MANNE R THAT IT 'PRODUCES TO THE ASSESSEE MORE THAN THE ORD INARY PROFITS WHICH MIGHT BE EXPECTED TO ARISE'. THE CIT( A) OBSERVED THAT IN THE ASSESSEE'S CASE, THE CONTRACTE D RATE OF RS. 300/- PER SFT. HAS RESULTED IN LOSS OF PROFI TS, NOT THE OTHER WAY ROUND. SEC. 80IA(10) CANNOT THEREFORE BE SAID TO BE RELEVANT TO THE FACTS OF THE PRESENT CASE. 7. FURTHER THE CIT(A) DISTINGUISHED THE DECISION IN TH E CASE OF LACHMINARAYAN MADANLAL (SUPRA) AND CONCLUDE D THAT NO SIMILAR CIRCUMSTANCES HAVE BEEN BROUGHT ON RECORD IN THE ASSESSEE'S CASE. HE FURTHER HELD THAT THERE IS NO SUGGESTION OR EVIDENCE, THAT THE AGREEMENT OF TH E ASSESSEE WITH M/S SAI BUILDERS IS NOT GENUINE OR TH AT THERE EXISTED SOME COMMONALITY OF PARTNERS OR THEIR FAMILY MEMBERS OR SOME CLOSE CONNECTION BETWEEN THE TWO PARTIES OR THAT THE ASSESSEE HAD BEEN PAID ANY AMOUNT OVER AND ABOVE WHAT HAD BEEN RECORDED IN THE BOOKS OF THE ASSESSEE. HE POINTED OUT THAT MERELY B ECAUSE THE TRANSACTION HAS RESULTED IN A LOSS TO THE ASSES SEE CANNOT BE A GROUND TO DISALLOW THAT LOSS. UNDER THE CIRCUMSTANCES, THE ADDITION OF THE SUM OF RS. 1,47,10,720/- TO THE INCOME OF THE ASSESSEE WAS DIR ECTED 5 ITA NO. 1529/HYD/2012 M/S. MODI VENTURES ================== TO BE DELETED. AGGRIEVED THE DEPARTMENT IS IN APPEA L BEFORE US. 8. THE LEARNED DR RELIED ON THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT THE COST INCURRED FOR CONSTRUCTION IS TAKEN FROM THE P&L OF THE ASSESSEE. HENCE THE ECONOMY OF COST THAT WAS REFERRED IN THE ASSESS EE'S REPLY WAS GIVEN DUE C O G NIZANCE WHILE TAKING THE STAND. THE FACT THAT M / S SAI BUILDER IS OWNER OF HALF THE LAND ON WHICH THE WHOLE P RO J ECT WAS CONSTRUCTED IS ALSO CONSIDERED AND ACCORDINGLY ONLY THE COST INCURRED F OR CONSTRUCTION IS TAKEN AS SUPPRESSED RECEIPTS FORM M / S SAI BUILDERS WITHOUT INCLUDING ANY PROFIT ELEMENT. VIDE LETTER DATED 22/12/2011, ASSESSEE HIMSELF HAS COME UP WITH THE COST OF CONSTRUCTION AS RS. 849.42 PER SFT. THI S WAS THE STAND MAINTAINED BY IT FROM THE B EGINNING OF ASSESSMENT. THE RE - COMPUTATION OF COST OF CONSTRUCTION INCURRED PER SFT AT RS. 681/- I S MORE AN AFTERTHOUGHT AND HENCE CANNOT BE CONSIDERED. 9. THE DR FURTHER SUBMITTED THAT T HE PROFIT RATIOS MENTIONED ARE NOT APPROPRIATE FOR COMPARISON IN THI S CASE. E VEN FOR SUCH A COMPARISON TO BE MEANINGFUL, THE BUSINESS RECEIPTS FROM M / S SAI BUILDERS SHOULD BE COMPARED WITH ANOTHER BUILDER FIRM / CONCERN WHICH IS NOT CLAIMING 80 IB DEDUCTION. A FIRM CLAIMING 80 I B DEDUCTION IS NOT A COMPARABLE TO A FIRM NOT CLAI M IN G 80 I B DEDUCTION. HENCE THIS ANALOGY PRESENTED BY THE ASSESSEE IS TO BE REJECTED. THIS IS MAINLY BECAUSE THE FIRMS CLAIMING 80IB GENERALLY SHOW H IGHER PROFIT RATIOS THAN THEIR COUNTERPARTS NOT CLAIMING DEDUCTION . 6 ITA NO. 1529/HYD/2012 M/S. MODI VENTURES ================== 10. THE LEARNED DR ALSO ARGUED THAT THE AGREEMENT BETWEEN THE TWO PARTIES IS A TAX PLANNING DEVICE AN D THE ASSESSEE HAS KNOWINGLY INCURRED LOSS IN THIS PROJEC T. 11. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE FIRM HAD GAINED ADEQUATE EXPERTISE IN UNDERTAKING LARGE HOUSING PROJECTS AND AN AGREEMENT HAD BEEN REACHED BETWEEN THE PARTIES VIZ., M/S. SRI SAI BUILDINGS AND M/S. MODI VENTURES FOR A FIXED PRICE CONTRACT @ RS. 300 PER SFT AD SUCH FIXED PRICE CONT RACT WAS AT THE FAIR MARKET RATE THEN PREVAILING FOR SUC H TYPE OF CONSTRUCTION. HE FURTHER SUBMITTED THAT THE ASSESS ING OFFICER HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO C OME TO THE CONCLUSION THAT THE CONSTRUCTION RECEIPT TO THE EXTENT OF RA. 1,47,10,720 HAD BEEN SUPPRESSED AND, THEREFO RE, IS TO BE TAXED. THE ADDITION ON ACCOUNT OF SUPPRESSED CONSTRUCTION RECEIPTS IS ON ASSUMPTIONS AND PRESUMPTIONS. THE ASSESSING OFFICER HAS NOT DISCHA RGED HIS ONUS BY BRINGING THE EVIDENCE TO SHOW THAT THE ASSESSEE HAS RECEIVED THE CONSTRUCTION RECEIPTS OVE R AND ABOVE THE AGREED PRICE. THE LEARNED COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE ANALOGY FROM CASE OF LACHMINARAYAN MADANLAL VS. WEST BENGAL (86 ITR 0439 ) IS MISPLACED AND THE OBSERVATION OF THE ASSESSING O FFICER THAT THE ARRANGEMENT WAS ONLY A DEVICE FOR MINIMISI NG THE TAX LIABILITY OF THE ASSESSEE FIRM AND THAT IS NOT A GENUINE BUSINESS ARRANGEMENT IS NOT JUSTIFIED. 12. WE HAVE HEARD BOTH THE PARTIES. WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) AS NOTHING H A D BEEN BROUGHT OUT BY THE DEPARTMENT TO PROVE THAT THE AGREEMENT OF THE ASSESSEE WITH M/S. SRI SAI BUILDER S IS 7 ITA NO. 1529/HYD/2012 M/S. MODI VENTURES ================== NOT GENUINE. THE DEPARTMENT HAS ALSO NOT BEEN ABLE TO PROVE THAT THE JOINT DEVELOPMENT AGREEMENT AND AGREEMENT OF CONSTRUCTION ARE BETWEEN CLOSE RELATIV ES AND WE FIND THAT BOTH THE PARTIES ARE INDEPENDENT. THE RATE OF RS. 300 PER SFT TOWARDS CONSTRUCTION COST H AD BEEN AGREED UPON AFTER DUE DELIBERATIONS BETWEEN THE PAR TIES IN THE YEAR 2003-04 AT THE TIME OF PREPARING AND FINAL ISING THE BUILDING PLAN AT THE THEN PREVAILING FAIR MARKE T RATE FOR THE COST OF CONSTRUCTION. THE LOSS COULD HAVE ARISEN DUE TO ESCALATION IN THE CONSTRUCTION COST SUBSEQUE NTLY ESPECIALLY BETWEEN THE YEARS 2006 AND 2009 AND, THEREFORE, IN THESE CIRCUMSTANCES IT CANNOT BE HELD THAT CHARGING OF RS. 300 PER SFT PAYABLE BY M/S. SRI SAI BUILDERS IS VERY LOW WHEN COMPARED TO THE COST OF CONSTRUCTION AT RS. 849.42 PER SFT. FURTHER IN THI S PROJECT AS A WHOLE A GROSS PROFIT OF 25% AND NET PROFIT OF 19% WAS EARNED AND HAD BEEN DECLARED. THESE PROFITS WERE COMPUTED AFTER ABSORBING THE ENTIRE LOSS INCURRED O N CONSTRUCTION RECEIPTS FROM M/S. SRI SAI BUILDERS. THE PERSON RUNNING THE BUSINESS HAS VIEWED THE ENTIRE P ROJECT INSTEAD OF TAKING CONSTRUCTION CONTRACT OF A SINGLE STAND ALONE TRANSACTION AND THAT IS WHY AT THE END OF THE PROJECT, THE ASSESSEE FIRM MADE THE NET PROFIT ABOU T 19%. IN THESE CIRCUMSTANCES, WE CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE DEPARTMENTAL APPEAL ON THIS ISSUE. 13. WITH RESPECT TO THE NEXT ISSUE RELATING TO THE DISALLOWANCE OF DEDUCTION U/S. 80IB(10) OF THE ACT, THE CIT(A) STATED THAT THE ASSESSING OFFICER HELD THAT SEC. 80IB(10) APPLIES ONLY TO THE PERSON TO WHOM THE APP ROVAL BY THE LOCAL AUTHORITY HAD BEEN GRANTED FOR THE PRO JECT AND SINCE THE APPROVAL FOR THE PROJECT HAD BEEN OBT AINED 8 ITA NO. 1529/HYD/2012 M/S. MODI VENTURES ================== IN THE NAME OF M/S SAI BUILDERS, THE ASSESSEE WAS N OT ENTITLED TO THE DEDUCTION AND THE ASSESSING OFFICER REJECTED THE RELIANCE OF THE AR ON THE DECISION IN THE CASE OF M/S NIKHIL ASSOCIATES (ITA NO. 328/AHD/2010) AND IN THE CASE OF M/S. SAFAL ASSOCIATES V ITO (ITA NO. 520/AHD/2011). 14. IN THE COURSE OF APPELLATE PROCEEDINGS, THE AR SUBMITTED THAT A PLAIN READING OF SEC. 80IB(10) SHO WS MERELY THAT THE HOUSING PROJECT SHOULD BE APPROVED BY THE LOCAL AUTHORITY AND THAT THE SECTION DOES NOT R EQUIRE THAT THE APPROVAL SHOULD BE IN THE NAME OF THE ASSE SSEE. THE AR ALSO RELIED ON THE DECISION IN THE CASES OF CIT V RADHE DEVELOPERS [2012] 341 ITR 403 (GUJ) WHERE IT WAS HELD THAT THE ASSESSEE WAS ENTITLED TO THE BENEFIT OF SEC. 80IB(10) EVEN WHERE THE DEVELOPMENT PERMISSION HAD BEEN OBTAINED IN THE NAME OF THE ORIGINAL OWNERS. T HE AR ALSO RELIED ON THE FOLLOWING DECISIONS FOR THE VIEW THAT EXEMPTION PROVISIONS SHOULD BE LIBERALLY CONSTRUED: (I) CIT VS. GWALIOR RAYON SILK MANUFACTURING CO. LTD. 196 ITR 149 (SC) (II) BAJAJ TEMPO LTD V CIT, 196 ITR 188 (SC) (III) CIT V HINDUSTAN BULK CARRIERS, 259 ITR 449 (SC) 15. THE CIT(A) HELD THAT SECTION 80IB(10) MERELY PROVIDES THAT THE 'HOUSING PROJECT' SHOULD BE 'APPR OVED BY A LOCAL AUTHORITY' I.E., THE APPROVAL IS GIVEN TO T HE PROJECT AND NOT TO THE PERSONS INVOLVED. THE CIT(A) HELD T HAT THE FACT THAT THE APPROVALS HAD BEEN GIVEN TO M/S. SAI BUILDERS WHILE THE DEVELOPMENT OF THE PROJECT WAS UNDERTAKEN BY THE ASSESSEE IS OF NO CONSEQUENCE AND RELYING ON THE DECISION IN THE CASE OF CIT VS. RADH E DEVELOPERS (341 ITR 403) (GUJ) HELD THAT THE ASSESS EE WAS 9 ITA NO. 1529/HYD/2012 M/S. MODI VENTURES ================== ENTITLED TO BENEFIT U/S. 80IB(10) OF THE ACT, EVEN IN THE CASE WHERE DEVELOPMENT PERMISSIONS HAVE BEEN OBTAIN ED IN THE NAME OF M/S. SAI BUILDERS. AGGRIEVED, THE R EVENUE IS IN APPEAL BEFORE US. 16. WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) AS THE PROVISIONS OF SECTION 80IB(10) INTER ALIA PROVIDE T HAT 100% OF THE PROFIT DERIVED BY AN UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BY A LOCAL AUTHO RITY SHALL BE ALLOWED AS DEDUCTION IN COMPUTING THE TOTA L INCOME FOR TAX PURPOSE. A PLAIN READING OF THIS PR OVISION REQUIRES THAT THE PROFITS ARE DERIVED FROM AN 'APPR OVED HOUSING PROJECT' AND SUCH APPROVAL SHOULD BE BY A L OCAL AUTHORITY. IT DOES NOT PROVIDE THAT THE APPROVAL O F THE LOCAL AUTHORITY SHOULD ONLY BE IN THE NAME OF THE UNDERTAKING PROPOSING TO DEVELOP THE HOUSING PROJEC T. AS OBSERVED BY THE CIT(A) WHEN THE LAND ON WHICH HOUSI NG PROJECT HAS BEEN APPROVED IS SOLD THE APPROVAL STIL L CONTINUES TO APPLY. SUBSEQUENT RATIFICATION OR REGULARISATION ARE REQUIRED ONLY IF THERE ARE DEVIA TIONS FROM THE APPROVED PLAN. HENCE THE CLAIM OF DEDUCTI ON U/S. 80IB(10) OF THE ACT CANNOT BE REJECTED ON THE GROUND THAT SANCTION FROM THE LOCAL AUTHORITY FOR THE HOUS ING PROJECT IS STANDING IN THE NAME OF M/S. SAI DEVELOP ERS. HENCE THE GROUND RAISED BY THE REVENUE ON THIS ISSU E IS REJECTED. 17. IN THE RESULT, REVENUE APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST, 2014 SD/ - (B. RAMAKOTAIAH) ACCOUNTANT MEMBER SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER HYDERABAD, DATED THE 27 TH AUGUST, 2014 10 ITA NO. 1529/HYD/2012 M/S. MODI VENTURES ================== TPRAO COPY TO: 1. THE ASST. CIT, CIRCLE - 1 0 ( 1 ), ROOM NO. 515, IT TOWERS, AC GUARDS, HYDERABAD. 2. M/S. MODI VENTURES, 5 - 4 - 187/3&4, 2 ND FLOOR, SOHAM MANSION, MG ROAD, SECUNDERABAD. 3. THE CIT(A) - V I, HYDERABAD. 4. THE CIT - V , HYDERABAD. 5. THE DR, B - BENCH, ITAT, HYDERABAD.