SAYAJI-U BA KHIN MEMORIAL TRUST, MUMBAI V. ASST DIT (E) 1(2), MUMBAI

ITA 1708/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3575 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 12-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRAJIT SINGH ITA NO M A Y
• Assessee Lawyers: RAJNIKANT CHANIYARI
• Keywords: Reopening of assessment; Capital asset; Depreciation; Charitable institution; Earning of tax free income; Tangible material; Difference of opinion; Reason to believe; Change of opinion; Revenue expenditure; Reassessment proceedings; Capital expenditure
• Section: 143(3); 234B; 12A; 27; 148; 11; 15; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI . . , ! , ' , # BEFORE S/SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND AMARJIT SINGH, JUDICIAL MEMBER / I.T.A. NO.1708/M/14 ( ' $ %$ / ASSESSMENT YEAR: 2005-06) SAYAJI-U-BA KHIN MEMORIAL TRUST 2 ND FLOOR, GREEN HOUSE, GREEN STREET, FORT, MUMBAI-400023 / VS. THE ASSTT. DIRECTOR OF INCOME TAX (EXEMPT) 1(2) ROOM NO.504, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 / I.T.A. NO. 2797/M/14 ( ' $ %$ / ASSESSMENT YEAR: 2005-06) THE ASSTT. DIRECTOR OF INCOME TAX (EXEMPT) 1(2) ROOM NO.504, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 / VS. SAYAJI-U-BA KHIN MEMORIAL TRUST 2 ND FLOOR, GREEN HOUSE, GREEN STREET, FORT, MUMBAI-400023 ./ ./ PAN/GIR NO. : AAATT0114E ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 21.03.2016 !' /DATE OF PRONOUNCEMENT:31.05.2016 ASSESSEE BY: SHRI NIRAJ SHETH & RAJNIKANT CHANIYARI DEPARTMENT BY: SHRI CHANDRAJIT SINGH ITA NO.1708&2797/M/14 A.Y. 2005-06 2 #$ / O R D E R PER AMARJIT SINGH, JM: THIS ORDER SHALL DISPOSED OF BOTH THE APPEALS FILE D BY THE ASSESSEE AS WELL AS BY THE REVENUE AGAINST THE ORDE R DATED 12.02.2014 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 1, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPE AL:- 1A. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED ASSISTANT DIRECTOR OF INCOME TAX ( HEREIN AFTER REFERRED TO AS ADIT) HAS ERRED IN REOPENING ASSESSMENT U/S.147 OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS CIT(A)] HAS ERRED IN CO NFIRMING THE ACTION OF THE LEARNED ADIT. THE REOPENING OF ASSESSMENT, BEING BAD IN LAW, THE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 OF THE ACT, BE QUASHED. 1B. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN HOLDING IN PAR A 4.5 OF THE APPELLATE ORDER THAT THE ARGUMENT OF THE APPEL LANT THAT REQUIRED DETAILS INCLUDING FOR CAPITAL EXPENDI TURE, DEPRECIATION AND OTHER EXPENSES WERE FILED AT THE T IME OF ORIGINAL ASSESSMENT, IS NOT SUPPORTED BY ANY SPECIF IC EVIDENCE ON THIS BEHALF. THE APPELLANT STATES AND SUBMIT THAT THE APPELLANT HAS FILED REQUIRED DETAILS AT TH E TIME OF ORIGINAL ASSESSMENT AND AS SUCH THE STATEMENT OF TH E CIT(A) BE QUASHED AND THE REOPENING OF THE ASSESSME NT BE HELD BAD IN LAW AND THE REASSESSMENT ORDER BE QUASH ED. 1C. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN HOLDING IN PAR A 4.6 OF THE APPELLATE ORDER THAT .IT CANNOT BE SAID THAT THE INITIATION OF REASSESSMENT PROCEEDINGS BEYOND FOUR YEARS WERE IRREGULAR TO THE EXTENT THAT THERE WAS NO FAIL URE ON THE ITA NO.1708&2797/M/14 A.Y. 2005-06 3 PART OF THE APPELLANT TO DISCLOSE MATERIAL FACTS. THE APPELLANT STATES AND SUBMITS THAT THE APPELLANT HAS DISCLOSED ALL MATERIAL FACTS AT THE TIME OF ORIGINA L ASSESSMENT AND AS SUCH THE REOPENING OF THE ASSESSM ENT BE HELD BAD IN LAW AND THE REASSESSMENT ORDER BE QUASH ED. 1D. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN HOLDING IN PAR A 4.7 OF THE APPELLATE ORDER THAT THE FACTS OF THE CASE REV EAL THAT THE SPECIFIC DETAILS OF CAPITAL EXPENDITURE OF RS.2,35,89,290/- AND THE DOCUMENTARY EVIDENCE WAS N OT FURNISHED AT THE TIME OF ORIGINAL ASSESSMENT. THE APPELLANT STATES AND SUBMITS THAT THE APPELLANT HAS FILED SPE CIFIC DETAILS AND DOCUMENTARY EVIDENCE OF CAPITAL EXPENDI TURE WAS FURNISHED AT THE TIME OF ORIGINAL ASSESSMENT AN D AS SUCH THE REOPENING OF THE ASSESSMENT BE HELD BAD IN LAW AND THE REASSESSMENT ORDER BE QUASHED. 2. WITHOUT PREJUDICE TO GROUND NO.1, ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A DIT HAS ERRED IN DISALLOWING THE AMOUNT OF RS.1,89,57,7 94/- BEING APPLICATION OF INCOME ON THE OBJECTS OF THE A PPELLANT TRUST AND THE CIT(A) HAS ERRED IN STATING IN PARA 6 .3 OF THE APPELLANT ORDER THAT IT APPEARS THAT THE APPELLANT HAS NOT FURNISHED THE DETAILS OF EXPENDITURE/APPLICATION BE FORE AO IN THE ASSESSMENT OR PRE-ASSESSMENT PROCEEDINGS.UNDER THE CIRCUMSTANCES, THE AMOUNTS OF RS.2,35,89,290/- AND CAPITAL EXPENDITURE OF RS.1,89,57,794/- CLAIMED AS EXPENSES ON OBJECTS OF THE TRUST ARE UNVERIFIED AND UNSUBSTANTIATED AND HELD THAT O NUS IS NOT DISCHARGED BY APPELLANT TO CLAIM EXPENSES INCUR RED FOR OBJECTS OF TRUST AND HEREBY CONFIRMED THE ACTION OF THE LEARNED ADIT. THE APPELLANT STATES AND SUBMITS THA T THE APPELLANT HAS FILED COMPLETE DETAILS OF EXPENDITURE DURING THE ASSESSMENT AND PRE ASSESSMENT PROCEEDINGS AND B EFORE THE CIT(A) AND AS SUCH THE LEARNED ADIT BE DIRECTED TO ALLOW THE AMOUNT OF RS.1,89,57,794/- APPLIED ON THE OBJECTS OF THE APPELLANT TRUST AS DEDUCTION AND REDUCE THE TOTAL INCOME ACCORDINGLY. 3. WITHOUT PREJUDICE TO GROUND NO.1, ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE IN LAW, THE LEARNED ADIT HAS ITA NO.1708&2797/M/14 A.Y. 2005-06 4 ERRED IN DISALLOWING THE AMOUNT OF RS.2,35,89,290/0 BEING CAPITAL EXPENDITURE INCURRED, BEING APPLICATION OF INCOME ON THE OBJECT OF THE APPELLANT TRUST AND THE CIT(A) HAS ERRED IN STATING IN PARA 6.3 THAT IT APPEARS THAT THE APPELLANT HAS NOT FURNISHED PROCEEDINGS.UNDER THE CIRCUMSTANCES, THE AMOUNTS OF RS.2,35,89,290/- AND CAPITAL EXPENDITURE OF RS.1,89,57,794/- CLAIMED AS EXPENSES ON OBJECTS OF THE TRUST ARE UNVERIFIED AND UNSUBSTANTI ATED AND HELD THAT ONUS IS NOT DISCHARGED BY APPELLANT TO CL AIM EXPENSES INCURRED FOR OBJECTS OF TRUST AND THEREBY CONFIRMED THE ACTION OF THE LEARNED ADIT. THE APPE LLANT STATES AND SUBMITS THAT THE APPELLANT HAS FILED COM PLETE DETAILS OF EXPENDITURE DURING THE ASSESSMENT AND PR E ASSESSMENT PROCEEDINGS AND BEFORE THE CIT(A) AND AS SUCH THE LEARNED ADIT BE DIRECTED TO ALLOW THE AMOUNT OF RS.2,35,89,290/-, BEING CAPITAL EXPENDITURE INCURRE D, AS APPLICATION OF INCOME ON THE OBJECTS OF THE APPELLA NT TRUST AS DEDUCTION AND REDUCE THE TOTAL INCOME ACCORDINGL Y. 4. WITHOUT PREJUDICE TO GROUND NO.1, (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE IN LAW, THE LEARNED ADIT HAS ERRED IN DISALLOWING MISAPPROPRIATION OF CASH OF RS.11,00,000/-, ON THE GROUND THAT THE SAME IS NOT APPLICATION OF INCOME ON THE O BJECTS OF THE APPELLANT TRUST AND THE CIT(A) HAS ERRED IN CON FIRMING THE ACTION OF THE LEARNED ADIT STATING THAT MISAPPROPRIATION OF CASH WAS NOT IN THE COURSE OF C ARRYING OUT ANY CHARITABLE ACTIVITY, THAT IT POINTS OUT LAC K OF DUE DILIGENCE AND THAT IS SEEMS TO BE AN STANDALONE OCC URRENCE AND CRIMINAL MISCONDUCT. THE LEARNED ADIT BE DIREC TED BE DIRECTED TO ALLOW THE LOSS DUE TO MISAPPROPRIATI ON OF RS.11,00,000/- AS APPLICATION OF INCOME ON THE OBJE CTS OF THE APPELLANT TRUST AND REDUCE THE TOTAL INCOME ACCORDINGLY. (B) WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AN D IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED AD IT HAS ERRED IN DISALLOWING THE AMOUNT OF RS.11,00,000/- T WICE IN THE ARRIVING AT THE TOTAL INCOME AND THE CIT(A) HAS ERRED IN NOT DECIDING THE ISSUE. (I) THE LEARNED ADIT BE DIRECTED TO DELETE THE EXTRA DISALLOWANCE OF RS.11,00,000/- ITA NO.1708&2797/M/14 A.Y. 2005-06 5 (II) THE LEARNED CIT(A) BE DIRECTED TO DECIDE THE ISSUE RAISED BEFORE HIM AND REDUCE THE TOTAL INCOME ACCORDINGLY. 5. WITHOUT PREJUDICE TO GROUND NO.1, ON THE FACTS A ND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, THE LEARNED AD IT HAS ERRED IN NOT ALLOWING THE CARRY FORWARD OF DEFICIT, BEING EXCESS APPLICATION OF INCOME ON THE OBJECTS OF THE APPELLANT TRUST, OF 2,60,60,563/- TO SUBSEQUENT YEARS AND THE CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LEARNED A DIT. THE LEARNED ADIT BE DIRECTED TO ALLOW THE CARRY FOR WARD OF DEFICIT OF RS.2,60,60,563/-. 6. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A DIT HAS ERRED IN NOT GIVING CONSEQUENTIAL ADJUSTMENT O F DEFICIT (EXCESS OF APPLICATION OVER INCOME) CARRIED FORWARD FROM EARLIER YEARS AGAINST INCOME ASSESSED FOR YEAR UNDE R APPEAL. 7. WITHOUT PREJUDICE TO GROUND NO.1, ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A DIT HAS ERRED IN CHARGING THE INTEREST OF RS.56,12,287/ - U/S. 56,12,287/- US/. 234B OF THE ACT. THE LEARNED ADIT BE DIRECTED TO DELETE THE INTEREST CHARGED U/S.234B OF RS.56,12,287/- AND REDUCE THE INCOME TAX DEMAND ACCORDINGLY. 8. WITHOUT PREJUDICE TO GROUND NO.1, ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A DIT HAS ERRED IN INITIATING PENALTY PROCEEDINGS U/S. 27 1(1)(C) OF THE ACT. THE LEARNED ADIT BE DIRECTED TO DROP THE PENALTY PROCEEDINGS. 3. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEA L:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCE OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE CLAIM OF DEPRECIATION OF RS.67,27,916/-, RELYING ON THE DECI SION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS . INSTITUTE OF BANKING PERSONNEL SERVICES REPORTED AT 264 ITR ITA NO.1708&2797/M/14 A.Y. 2005-06 6 110 (BOM) IGNORING THE RATIO OF HONBLE SUPREME COU RT JUDGMENTS IN THE CASE OF ESCORTS LTD. VS. UNION OF INDIA (199 ITR 43) WHEREIN HONBLE SUPREME COURT HAS HELD THAT DOUBLE DEDUCTION CANNOT BE PRESUMED IF THE SAME IS NOT SPECIFICALLY PROVIDED BY LAW, IN ADDITION TO NORMAL DEDUCTION. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING THE CLAIM OF DEPRECIATION, WHEN THE DELHI HIGH COURT IN THE CASE OF CHARNJIV CHARITABLE TRUST AND KERALA HIGH COURT IN THE CASE OF LISSIE MEDICAL INSTITUTIONS VS. CIT 76 DTR (KER) 372 HAS DECIDED THE ISSUE IN THE FAVOUR OF THE DEPA RTMENT AFTER CONSIDERING THE DECISION OF HONBLE SUPREME C OURT IN THE CASE OF ESCORTS LTD. (199 ITR 43) 3. THE APPELLANT PRAYS THAT, TO THE EXTENT OF ABOVE GROUNDS, THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEAL S) I, MUMBAI BE SET ASIDE AND THAT OF THE ASSESSING OFFIC ER BE RESTORED. 4. THE ASSESSMENT U/S. 143 (3) OF THE INCOME TAX A CT, 1961( IN SHORT THE ACT) WAS COMPLETED ACCEPTING THE STATUS OF THE ASSESSEE AS A CHARITABLE TRUST ENTITLED FOR EXEMPTION U/S. 11 O F THE ACT. SUBSEQUENTLY THE ASSESSMENT WAS REOPENED U/S. 147 O F THE ACT BY ISSUING NOTICE U/S. 148 OF THE ACT. THE REASONS FO R REOPENING ARE REPRODUCED AS UNDER:- 1. IN THIS CASE THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR A.Y.2005-06 ON 31.10.2005 DISCLOSING DEFICIT OF RS.2,60,60,563/-. THE ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT ON 24.12.2007 ACCEPTING THE DEFICIT AS RETURNED. ITA NO.1708&2797/M/14 A.Y. 2005-06 7 2. ON PERUSAL OF THE RECORDS IT IS NOTICED THAT IN THIS CASE THE ACCUMULATED SURPLUS OF 15% HAS ALREADY BEEN CLAIMED AS EXEMPT INCOME UNDER THE EXPRESS PROVISION OF SECTION 11(1)(A) OF THE ACT. THE EXCESS EXPENDITURE UTILIZED FOR PURCHASE OF CAPITAL ASSET OR TOWARDS FUNDING EXCESS EXPENDITURE OVER INCOME (DEFICIT) IS WRONGLY CLAIMED AS APPLICATION TOWARDS THE OBJECT OF THE TRUST AND THI S AMOUNT TO CLAIM OF DOUBLE DEDUCTION. THE ALLOWANCE OF DEFICIT IN THE ASSESSMENT ORDER IS NOT IN ORDER IN VIEW OF THE SPECIFIC PROVISIONS OF SECTION 11 OF THE ACT WHICH READS AS UNDER:- SECTION 11(1) SUBJECT TO THE PROVISION OF SECTIONS 60 TO 63, THE FOLLOWING INCOME SHALL NOT BE INCLUDED IN THE TOTAL INCOME OF THE PREVIOUS YEAR O F THE PERSON IN RECEIPT OF THE INCOME. (A) INCOME DERIVED FROM PROPERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES I N INDIA AND WHERE ANY SUCH INCOME IS ACCUMULATED OR SET APART FOR APPLICATION TO SUCH PURPOSES IN INDIA, TO THE EXTENT TO WHICH THE INCOME SO ACCUMULATED OR SET APART IS NOT IN EXCESS OF FIFTEE N PER CENT OF THE INCOME FROM SUCH PROPERTY. ITA NO.1708&2797/M/14 A.Y. 2005-06 8 SINCE SECTION 11 OF THE I.T. ACT, PROVIDES FOR DEDUCTION OF EXPENDITURE INCURRED FOR THE OBJECTS OF THE TRUST AS APPLICATION FROM SUCH INCOME AND DOES NOT SPECIFICALLY & EXPRESSLY PROVIDE FOR DOUBLE DEDUCTION ON ACCOUNT OF EXPENDITURE OUT OF EXEMPT INCOME AS IT AMOUNTS TO CLAIMING A DOUBLE DEDUCTION, WHICH IN VIEW OF THE RATIO OF JUDGEMENT IN THE CASE OF 199 ITR 43 ESCORTS LTD. VS. UNION OF INDIA AND (1992) 65 TAXMAN 420 (SC) J.K.SYNTHETICS LTD. VS. UNION OF INDIA, CANNOT BE ALLOWED. IN THIS CASE IN THE ASSESSMENT ORDER THE ASSESSEES CLAIM OF DEFICIT OF RS.2,60,60,563/- WAS ALLOWED AND THEREBY EXCESSIVE LOSS HAS BEEN COMPUTED IN THIS CASE. THUS INCOME OF THE ASSESSEE HAS ESCAPED THE ASSESSMENT IN VIEW OF THE CLAUSE (C) (IV) OF EXPLANATION 2 TO PROVISO TO SEC 147 OF THE ACT WHICH READS AS UNDER:- EXPLANATION 2 FOR THE PURPOSE OF THIS SECTION, TH E FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, NAMELY:- ITA NO.1708&2797/M/14 A.Y. 2005-06 9 . (C) WHERE AN ASSESSMENT HAS BEEN MADE, BUT- (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED. 3. IT IS FURTHER NOTICED THAT THE ASSESSEE HAS CLAIMED A DEPRECIATION ON FIXED ASSETS AMOUNTING TO RS.67,27,916/- IN ADDITION TO ALLOWANCE OF CAPITAL EXPENDITURE TO THE TUNE OF RS.2,35,89,290/- . THE ASSESSEE HAS ADOPTED THE POLICY OF CLAIMING CAPITAL EXPENDITURE AS APPLICATION OF INCOME AND ALSO THE DEPRECIATION ON THESE CAPITAL ASSETS AS APPLICATION OF INCOME, WHICH IN TURN CONTRAVENES WITH THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF ESCORTS LTD. VS. CIT 199 ITR 43 WHEREIN THE HONBLE SUPREME COURT HAS CLEARLY HELD THAT A DOUBLE DEDUCTION CANNOT BE ALLOWED UNLESS AND UNTIL SPECIFICALLY PROVIDED BY THE ACT. IN THE CASE OF DY.D.I.T. (EXEMPTION) VS. LISSIE MEDICAL INSTITUTIONS (2010) 8 TAXMANN.COM 82 (COCHIN-ITAT) ALSO IT HAS BEEN HELD THAT A CHARITABLE INSTITUTION U/S. 12A OF THE ACT IS NOT ITA NO.1708&2797/M/14 A.Y. 2005-06 10 ELIGIBLE TO CLAIM DEPRECIATION IN RESPECT OF CAPITA L ASSETS, COST OF WHICH STANDS ALREADY ALLOWED BY WAY OF APPLICATION OF INCOME U/S. 11 ON ACCOUNT OF INCURRING CAPITAL EXPENDITURE TOWARDS AND IN FURTHERANCE OF ITS OBJECTS. IN THE INSTANT CASE, T HE ASSESSEE IS CLAIMING THE CAPITAL EXPENDITURE AS APPLICATION OF INCOME AND ALSO THE DEPRECIATION ON THESE CAPITAL ASSETS WHICH TANTAMOUNT TO DOUBLE DEDUCTION HENCE INFRINGES WITH THE AFORESAID DECISION. IN THIS CASE IN THE ASSESSMENT ORDER THE ASSESSEES CLAIM OF THE CAPITAL EXPENDITURE AS APPLICATION OF INCOME AND ALSO THE DEPRECIATION ON THESE CAPITAL ASSETS HAS BEEN ALLOWED AND THEREBY EXCESSIVE DEPRECIATION WAS ALLOWED TO THE ASSESSEE. THUS INCOME OF THE ASSESSEE HAS ESCAPED THE ASSESSMENT IN VIEW OF THE CLAUSE (C)(IV) OF EXPLANATION 2 TO PROVISO TO SECTION 147 OF THE ACT WHICH READS AS UNDER:- EXPLANATION 2 FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING SHALL ALSO BE DEEMED TO THE CASES WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, NAMELY:- (C) WHERE AN ASSESSMENT HAS BEEN MADE, BUT- ITA NO.1708&2797/M/14 A.Y. 2005-06 11 (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED. 4. IT IS FURTHER NOTICED THAT IN THE COMPUTATION OF INCOME, ASSESSEE SHOWN AN AMOUNT OF RS.4,95,43,331/- AS AMOUNT APPLIED TO CHARITABLE OR RELIGIOUS PURPOSES IN INDIA, WHICH INCLUDES RS.1,89,57,797/- AS EXPENSES ON OBJECTS OF THE TRUST. THE DETAILS OF THE EXPENDITURE WAS FURNISHED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS VIDE SUBMISSION DATED 26.10.2007 WHICH SHOWS THAT THE AMOUNT OF RS.1,89,57,797/- INCLUDES AN AMOUNT OF RS.11,00,000/- AS CASH MISAPPROPRIATION. THE MISAPPROPRIATION OF CASH AMOUNTING TO RS.11,00,000/- IS NOT ALLOWABLE AS EXPENSES ON THE OBJECT OF THE TRUST. IT IS ALSO SEEN THAT EARNEST MONEY DEPOSIT PAID BY THE ASSESSEE WHICH IS REFUNDABLE IN NATURE, FOR THE PURCHASE OF LAND AT NAVI MUMBAI IS ALSO TAKEN AS EXPENDITURE TO THE TUNE OF RS.2,35,89,290/ AND EXPENSES ON OBJECT OF THE TRUST RS.1,89,57,794/-. HOWEVER, THE DETAILS O F THE SPENDING OF THESE AMOUNT ALONG WITH THE ITA NO.1708&2797/M/14 A.Y. 2005-06 12 DOCUMENTARY EVIDENCE IS NOT FURNISHED BY THE ASSESSEE EITHER WITH THE RETURN OF INCOME OR DURING THE COURSE OF ASSESSMENT PROCEEDING. IN THIS CASE IN THE ASSESSMENT ORDER THE ASSESSEES CLAIM OF EXPENDITURE BEING PAYMENT OF EARNEST MONEY DEPOSIT, MISAPPROPRIATION OF CASH AMOUNTING TO RS.11,00,000/-, CAPITAL EXPENDITURE TO THE TUNE OF RS.2,35,89,290/- AND EXPENSES ON OBJECT OF THE TRUST RS.1,89,57,794/- WERE ALLOWED AND THEREBY EXCESSIVE ALLOWANCE OF EXPENSES HAS BEEN MADE IN THIS CASE. THUS INCOME OF THE ASSESSEE HAS ESCAPED THE ASSESSMENT IN VIEW OF THE CLAUSE (C)(IV) OF EXPLANATION 2 TO PROVISO TO SECTION 147 OF THE ACT WHICH READS AS UNDER:- EXPLANATION 2 FOR THE PURPOSE OF THIS SECTION, TH E FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT NAMELY:- (C) WHERE AN ASSESSMENT HAS BEEN MADE, BUT ITA NO.1708&2797/M/14 A.Y. 2005-06 13 (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED. 5. IN VIEW OF THE FORGOING I HAVE REASON TO BELIEVE THAT THE INCOME OF THE ASSESSEE HAS ESCAPED THE ASSESSMENT FOR THE A.Y.2005-06. THE CAUSE OF ESCAPEMENT OF INCOME WITHIN THE MEANING OF SECTION 147 OF INCOME TAX ACT, 1961, IS FAILURE ON THE PART OF THE ASSESSEE TO MAKE FULL AND TRUE DISCLOSURE OF THE MATERIAL FACTS AS FAR AS THE ABOV E ISSUES ARE CONCERNED. 6. THE SANCTION U/S.151(1) OF THE INCOME TAX ACT, 1961, IS SOLICITED FOR ISSUANCE OF NOTICE U/S.148 OF THE ACT, FROM THE DIT(EXEMPTION) AS THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION HAS BEEN FINALIZED U/S.143(3) OF INCOME TAX ACT, AND A PERIOD OF FOUR YEARS HAVE LAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR. ITA 1708/MUM/2014:- GROUND NO:-1 5. THE ASSESSEE HAS CHALLENGED THE REOPENING U/S.14 7 OF THE ACT AND TOOK THE PLEA THAT INCOME WHICH HAS BEEN SHOWN IN THE RETURN IS ITA NO.1708&2797/M/14 A.Y. 2005-06 14 NOT AN ESCAPED INCOME AND THE ASSESSMENT OF THE ASS ESSEE HAS BEEN COMPLETED U/S.143(3) OF THE ACT AND THE NOTICE HAS BEEN ISSUED AFTER THE EXPIRY OF FOUR YEARS WHICH IS NOT JUSTIFIABLE A ND THE AO HAS NOT SHOWN THAT THE CONDITIONS PRESCRIBED IN THE PROVISO OF SECTION 147 OF THE ACT ARE SATISFIED. THEREFORE, IN THE SAID CIRC UMSTANCES THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER WHICH HAS B EEN CONFIRMED BY THE LEARNED CIT(A) IN QUESTION IS WRONG AGAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. THE FIRST GROUND WHICH HAS BEEN TAKEN BY THE ASSESSEE IN CONNECTION WITH THE REOPENING OF THE AS SESSMENT IS THAT THE ASSESSEE CLAIMED ACCUMULATED SURPLUS OF 15% AS EXEM PT INCOME UNDER THE EXPRESS PROVISION OF 11(1)(A) OF THE ACT AND THE ASSESSEE ALSO CLAIMED DEFICIT OF RS.2,60,60,563/- THEREFORE, IN THIS CASE EXCESSIVE LOSS HAS BEEN CLAIMED, THEREFORE, THE AS SESSING OFFICER IS OF THE VIEW THAT THE INCOME OF THE ASSESSEE HAS ESCAPE D THE ASSESSMENT IN VIEW OF THE CLAUSE C(IV) OF EXPLANATION 2 TO PROVIS O 2 SECTION 147 OF THE ACT. IT IS REQUIRED TO BE SEEN THAT THE REOPE NING OF THE CASE OF THE ASSESSEE ON THIS GROUND IS JUSTIFIABLE OR NOT. WHE THER THE CLAIM OF ACCUMULATED SURPLUS OF 15% AS EXEMPTED UNDER THE PR OVISION OF 11(1)(A) OF THE ACT AND THE CLAIM OF THE ASSESSEE O F DEFICIT OF RS.2,60,60,563/- IS AMOUNT TO ESCAPED INCOME OF ASS ESSEE OR NOT. IT IS NOT DISPUTED THAT THE ASSESSMENT OF THE ASSESSEE WA S COMPLETED ACCEPTING THE ASSESSMENT U/S.143(3) OF THE ACT ON 3 1.10.2005 ASCERTAINING FOR THE ENTITLEMENT OF EXEMPTION U/S.1 1 OF THE ACT. SUBSEQUENTLY, THE ASSESSMENT ORDER WAS REOPENED U/S .147 OF THE ACT ITA NO.1708&2797/M/14 A.Y. 2005-06 15 AND NOTICE U/S.148 OF THE ACT WAS ALSO ISSUED. IT IS TO BE SEEN WHETHER CLAIMING EXEMPTION TO THE EXTENT OF 15% ON ACCUMULA TED SURPLUS U/S.11(1)(A) OF THE ACT AND CLAIM OF DEFICIT TO THE TUNE OF RS.2,60,60,563/- IS THE INCOME OF ESCAPED ASSESSMEN T OR NOT. THIS MATTER OF CONTROVERSY HAS BEEN DECIDED IN THE ASSES EES OWN CASE FOR THE A.Y. 2007-08 IN ITA NO.5646/MUM/2011, INCOME TA X APPELLATE TRIBUNAL WHICH HAS BEEN DECIDED IN FAVOUR OF THE AS SESSEE. THE FINDING IN THE SAID ORDER IS HEREBY REPRODUCED BELO W:- 5. WITH REGARD TO GROUND NO.2 OF APPEAL, THE ASSESSING OFFICER OBSERVED THAT IF THE TRUST HAS NO T BEEN LEFT WITH SURPLUS AND THERE IS DEFICIT, THEN THERE CAN BE NO ACCUMULATION MADE. AO HAS STATED THAT ACCUMULATION OR SETTING APART OF 15% OF INCOME HAS BEEN ALLOWED BY THE VIRTUE OF PROVISION OF SECTION 11(1)(A) OF THE ACT WHEN ASSESSEE IS NOT ABLE TO SPEND THE ENTIRE AMOUNT AND WHEN THE ENTIRE AMOUNT HAS BEEN SPENT, THERE IS NOT SURPLUS LEFT THAT CAN BE ACCUMULATED. AGGRIEVED, ASSESSEE FILED APPEAL BEFORE LD. CIT(A). 6. ON BEHALF OF THE ASSESSEE, IT WAS SUBMITTED THAT AS PER SECTION 11(1)(A), THE EXPENDITURE INCURRED BY A TRUST OR INSTITUTE ON THE OBJECTS OF THE TRUST BY WAY OF APPLICATION INCOME DERIVED FROM ITA NO.1708&2797/M/14 A.Y. 2005-06 16 THE PROPERTY HELD FOR RELIGIOUS OR CHARITABLE PURPOSES IS DEDUCTIBLE FROM THE INCOME. IT WAS SUBMITTED THAT THERE IS NO BAR IN LAW AND THERE ARE NO SPECIFIC PROVISIONS IN THE ACT WHICH SAYS THAT SUCH DEDUCTION OF 15% ACCUMULATION IS ALLOWABLE IRRESPECTIVE OF WHETHER 85% OF THE INCOME HAVE BEEN APPLIED TO CHARITABLE PURPOSES OR NOT. LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF ASSESSEE STATED THAT AO IS NOT JUSTIFIED IN DENYING THE CLAIM OF THE ASSESSEE FOR THE ACCUMULATION OF INCOME AND, ACCORDINGLY, ALLOWED THE CLAIM OF THE ASSESSEE. BEING AGGRIEVED, DEPARTMENT IS IN APPEAL BEFORE THE TRIBUNAL. 8. WE OBSERVE THAT LD. CIT(A) HAS RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF A.I.N. RAO CHARITABLE TRUST (SUPRA), WHEREIN, IT IS HELD THAT EXEMPTION AVAILABLE U/S. 11(1)(A) I.E. 15 % OF INCOME IS UNFETTERED AND NOT SUBJECT TO ANY CONDITIONS. IN THE CASE BEFORE US, ASSESSEE HAS CLAIMED 15% ACCUMULATION U/S.11(1)(A) OF THE ACT. HENCE, WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND REJECT GROUND OF APPEAL TAKEN BY DEPARTMENT. ITA NO.1708&2797/M/14 A.Y. 2005-06 17 IN VIEW OF THE SAID ORDER APPARENTLY CLAIM OF THE A SSESSEE MAY HAVE TWO VIEWS BUT THE ASSESSEE NOWHERE CONCEALED ANY PA RTICULARS OF INCOME FROM THE ASSESSING OFFICER OR IN THE ASSESSM ENT WHICH MAY BE CALLED AS ESCAPED INCOME ASSESSMENT. MOREOVER, THE ABOVE SAID INFORMATION HAD ALREADY BEEN GIVEN IN THE RETURNS. THERE IS NO NEW TANGIBLE MATERIAL WITH THE ASSESSING OFFICER TO REO PEN THE CASE. SPECIFICALLY IN THE CIRCUMSTANCES WHEN THE EARLIER INCOME OF THE ASSESSEE HAD ALREADY BEEN FINALIZED IN VIEW OF THE PROVISION U/S.143(3) OF THE ACT. THE CASE OF THE ASSESSEE NOWHERE FALL WITHIN THE PROVISO OF SECTION 147 OF THE ACT. THEREFORE, IN THE SAID CIRCUMSTANCES IN VIEW OF THE ABOVE MENTIONED DECISION PASSED BY THE CO-ORDINATE BENCH OF MUMBAI IT IS QUITE CLEAR THAT WHEN BOTH VIEW CAN BE TAKEN THEN IN THE SAID CIRCUMSTANCES THIS CANNOT BE A GROUND TO R EOPEN THE CASE U/S.147 OF THE ACT. WHILE REOPENING THE CASE OF TH E ASSESSEE NO NEW MATERIAL / INFORMATION WAS WITH THE ASSESSING OFFIC ER WITH REGARD TO THE INCOME OF ESCAPED ASSESSMENT. ACCORDINGLY, THI S GROUND WHICH HAS BEEN CONSIDERED TO REOPEN THE CASE U/S.147 OF T HE ACT DOES NOT SEEM JUSTIFIABLE. HENCE THIS ISSUE IS DECIDED IN F AVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. GROUND NO:-2 6. THE GROUND NO.2 WHICH HAS BEEN CONSIDERED FOR RE OPENING THE ASSESSMENT U/S.147 OF THE ACT, IS IN CONNECTION WIT H THE DISALLOWANCE OF THE DEPRECATION OF RS.67,27,916/- WHICH WAS CONS IDERED AS DOUBLE ITA NO.1708&2797/M/14 A.Y. 2005-06 18 DISCOUNT. IT WAS TAKEN INTO CONSIDERATION IN VIEW OF THE LAW SETTLED IN ESCORTS LTD. VS. UNION OF INDIA 199 ITR 43. THE SA ID DEPRECIATION WAS DESIRED TO BE ALLOWED WITH CAPITAL EXPENDITURE TO THE TUNE OF RS.2,35,89,290/-. THIS GROUND HAS ALREADY BEEN CON SIDERED AS NOT A GOOD GROUND TO REOPEN THE CASE BY THE LEARNED CIT(A ) IN VIEW OF THE LAW SETTLED IN CIT VS. INSTITUTE OF BANKING PERSONA L SELECTION (IBPS) 2003 131 TAXMAN 386. IT IS NOT IN DISPUTE THAT EAR LIER THE RETURN OF INCOME WAS FILED ON 31.10.2005 WHICH WAS COMPLETED U/S. 143(3) OF THE ACT ON 24.12.2007 WHEREAS THE NOTICE U/S.147 OF THE ACT WAS ISSUED ON 23.03.2011 AFTER THE EXPIRY OF FOUR YEAR. NO DOUBT IN THE SAID CIRCUMSTANCES THE CASE OF THE ASSESSEE FALLS W ITHIN THE PROVISO OF SECTION 147 OF THE ACT. IT IS ALSO REQUIRED TO BE SEEN WHETHER ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE AS SESSEE TO MAKE RETURN U/S. 139 OF THE ACT OR IN RESPONSE TO NOTICE ISSUED UNDER SUBSECTION OF SECTION 142 OF THE ACT OR SECTION 148 OF THE ACT OR TO DISCLOSED FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSE SSMENT FOR ASSESSMENT YEAR. NO NEW TANGIBLE MATERIAL WAS WITH THE ASSES SING OFFICER TO REOPEN THE CASE. AS DISCUSSED ABOVE THE CLAIM OF D EPRECIATION ALONGWITH REVENUE EXPENDITURE WAS ALLOWABLE WHICH C ANNOT BE A GROUND TO REOPENING THE CASE. ACCORDINGLY THIS ISS UE IS DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. GROUND NO:-3 ITA NO.1708&2797/M/14 A.Y. 2005-06 19 7. GROUND NO. 3 IS IN CONNECTION WITH THE CLAIM OF THE ASSESSEE WITH REGARD TO THE CAPITAL EXPENDITURE OF RS.2,35,8 9,290/-. THE CONTENTION OF THE ASSESSEE IS THAT THE NECESSARY DE TAILS AND EVIDENCE WERE DULY SUBMITTED BEFORE THE ASSESSING OFFICER AT THE TIME OF ORIGINAL ASSESSMENT AND NOTHING WAS CONCEALED. THE REFORE THE SAME CANNOT BE THE GROUND FOR REOPENING THE ASSESSMENT U/S. 147 OF THE ACT. IT IS SPECIFICALLY ASSERTED THAT THE APPELLAN T TRUST FURNISHED ALL THE DETAILS AND DOCUMENTARY EVIDENCE IN SUPPORT OF EXPE NSES CLAIMED DURING THE ASSESSMENT PROCEEDINGS. AFTER THE SCRUT INY, DDIT PASSED THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT DATED 2 4.12.2007. THE EXPENDITURE TO THE TUNE OF RS.1,89,57,794/- WERE CO NSIDERED AS REVENUE EXPENDITURE OF THE TRUST AND DOCUMENTARY EV IDENCE IN THIS REGARD HAD ALREADY BEEN SUBMITTED IN SUPPORT OF TH E CLAIM WHICH HAVE BEEN ALLOWED AS DEDUCTIONS. NO DOUBT IN THE SAID C IRCUMSTANCES EACH AND EVERYTHING HAS BEEN ENUMERATED IN THE RETURN AL ONG WITH NECESSARY DOCUMENTS THEREFORE THIS CANNOT BE THE GR OUND TO RAISE THE PROVISION U/S. 147 OF THE ACT. NO DOUBT WITH REGAR D TO THE CAPITAL EXPENDITURE AND REVENUE EXPENDITURE THE CLAIM HAS D ULY BEEN MENTIONED BY THE ASSESSEE IN THE RETURN. IT CAN BE VIEWED IN ACCORDANCE WITH LAW. HOW IT CAN BE ESCAPED ASSESSM ENT IS NOT UNDERSTANDABLE. RELIANCE PLACED UPON 264 ITR 110. MOREOVER, IT ALSO CAME INTO NOTICE THAT THE DETAILS OF THE CAPIT AL EXPENDITURE AND REVENUE EXPENDITURE HAS DULY BEEN PLACED BEFORE ASS ESSING OFFICER WHICH ARE ALSO ON THE FILE AT PAGE 36 TO 45 OF THE PAPER BOOK. SO FAR AS ITA NO.1708&2797/M/14 A.Y. 2005-06 20 THE CLAIM REGARDING EXPENDITURE OF RS.11,00,000/- I S CONCERNED, THE SAME HAS BEEN MISAPPROPRIATE BY THE OFFICIAL OF TRU ST AND IN THIS REGARD THE FIR HAS GOT BEEN RECORDED AND DETAILS OF THE FI R HAS DULY BEEN REFLECTED BY THE ASSESSEE IN HIS RETURN AND THE DOC UMENTS ATTACHED THEREWITH. WE HAVE ARRIVED AT THIS CONCLUSION THAT NO INCOME IS ESCAPED ASSESSMENT. MOREOVER THE MOST IMPORTANT PO INT WHICH CAME INTO NOTICE THAT THE PRESENT CASE IS OF THE A.Y.200 5-06 AND NOTICE WAS ISSUED AFTER THE EXPIRY OF FOUR YEARS ON 23.03.201 1 WHICH ALSO BARRED THE JURISDICTION OF THE AUTHORITY TO TAKE THE ACTIO N U/S. 147 OF THE ACT. WHEN EACH AND EVERY THING HAS BEEN DISCLOSED BY THE ASSESSEE AND NOTHING NEW MATERIAL WAS WITH THE ASSESSING OFFICER , THEREFORE, IN THE SAID CIRCUMSTANCES THE REOPENING OF THE CASE U/S. 1 47 OF THE ACT DOES NOT SEEMS JUSTIFIABLE. ATLEAST REOPENING OF THE C ASE THERE SHOULD BE SOME MATERIAL WITH THE ASSESSING OFFICER WHICH HAS NOT BEEN DISCLOSED BY THE ASSESSEE AND THAT INCOME HAS BECOM E THE ESCAPED INCOME OF ASSESSMENT. MOREOVER THE EARLIER ASSESSM ENT OF THE ASSESSEE WAS COMPLETED U/S. 143(3) OF THE ACT AND E VERY DETAILS OF THE ASSESSMENT WAS PRODUCED BEFORE ASSESSING OFFICER. THE CHANGE OF OPINION IS ALSO NOT A GOOD GROUND TO REOPEN THE CAS E U/S.147 OF THE ACT. IN VIEW OF THE ABOVE SAID CIRCUMSTANCES, WE A RE OF THE VIEW THAT THE REASSESSMENT U/S. 147 OF THE ACT IS WITHOUT JUR ISDICTION AND IS WRONG AGAINST LAW AND FACTS ON THIS ISSUE. ITA NO.1708&2797/M/14 A.Y. 2005-06 21 8. WE HAVE DISCUSSED THE GROUNDS FOR REOPENING THE ASSESSMENT OF THE ASSESSEE U/S.147 OF THE ACT. NO NEW MATERIAL W AS WITH THE ASSESSING OFFICER TO REOPEN THE CASE U/S.147 OF THE ACT. THE DOCUMENTS WHICH HAVE BEEN FILED BY THE ASSESSEE WER E CONSIDERED AND IN ONE OF GROUND THE ASSESSING OFFICER MAY HAVE TW O OPINIONS WHICH CANNOT BE CONSIDERED AS A GOOD GROUND TO REOPEN THE CASE. THE OTHER TWO GROUNDS HAVE ALSO BEEN DISCUSSED ABOVE WHEREIN THE CLAIM OF THE ASSESSEE FOUND JUSTIFIABLE. NOWHERE IT CAME INTO T HE NOTICE THAT THE ASSESSEE WAS RESPONSIBLE TO FURNISH THE WRONG DETAI LS TO WHICH IT CAN BE PRESUMED THAT THE DETAILS FURNISHED BY THE ASSES SEE HAS BECOME ESCAPED INCOME OF ASSESSMENT. IT IS NOT IN DISPUTE THAT THE NOTICE U/S.147 OF THE ACT WAS ISSUED AFTER THE EXPIRY OF F OUR YEARS. THE CASE OF THE ASSESSEE DOESNT FALL IN THE PROVISO OF SECT ION 147 OF THE ACT. WE HAVE ACCORDINGLY ARRIVED AT THIS CONCLUSION THAT THE GROUNDS OF REOPENING ARE WRONG AGAINST LAW AND FACTS. SO FAR AS THE OTHER GROUNDS OF THE ASSESSEE ARE CONCERNED, THERE IS NO NEED TO DECIDE THESE GROUNDS BECAUSE AFTER THE SET ASIDE OF THE ORDER OF U/S.147 OF THE ACT THE DECISION ON THE GROUNDS WHICH MAY HAVE BEEN TAK EN ON MERITS WOULD ONLY BE THE ACADEMIC EXERCISE. ACCORDINGLY, THE APPEAL OF THE REVENUE HAS ALSO BECAME INFRUCTUOUS IN VIEW OF NON- EXISTENCE OF ORDER U/S. 147 OF THE ACT. 9. ACCORDINGLY, APPEAL OF THE ASSESSEE IS HEREBY AL LOWED AND APPEAL OF THE REVENUE IS HEREBY DISMISSED. ITA NO.1708&2797/M/14 A.Y. 2005-06 22 ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY, 2016 SD/- SD/- (B.R.BASKARAN) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 31 ST MAY, 2016 MP MP MP MP ' ( )' * +*% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ' / BY ORDER, - & //TRUE COPY// ,/! (DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI