M/s.Vascular Concepts Ltd., Bangalore V. DCIT-Central Circle-1(4), Bangalore

ITA 1921/BANG/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5582 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 16-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR BENGALURU
• Assessee Lawyers: K R PRADEEP
• Keywords: Gift; Business income; Opportunity of being heard; Principle of natural justice; Question of law; Bad and doubtful debts; Difference of opinion; Block assessment; Change of opinion; Revenue expenditure; Capital expenditure
• Section: 143(3); 133A; 153A; 234B; 37(1); 147; 148; 37; 263; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER ITA NOS.1921 TO 1927/BANG/2016 ASSESSMENT YEARS : 2007-08 TO 2013-14 M/S. VASCULAR CONCEPTS LTD., NO.19, S V COMPLEX, BELLARY ROAD, HEBBAL, BANGALORE 560 024. PAN: AAACM 8353R VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI K.R. PRADEEP, ADVOCATE. RESPONDENT BY : SHRI PRADEEP KUMAR, CIT(DR)(ITAT), BENGALURU. DATE OF HEARING : 30.10.2017 DATE OF PRONOUNCEMENT : 29.01.2018 O R D E R PER BENCH THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINS T THE RESPECTIVE ORDERS OF THE CIT(APPEALS) INTER ALIA ON VARIOUS GROUNDS. SINCE THESE APPEALS WERE HEARD TOGETHER, THEY ARE BEING DISPOSE D OF THROUGH THIS CONSOLIDATED ORDER, BUT WE PREFER TO ADJUDICATE THE M ONE AFTER THE OTHER. ITA NOS.1921 TO 1925/BANG/2016 2. THESE APPEALS RELATE TO ASSESSMENT YEARS 2007-0 8 TO 2011-12 AND IN THESE YEARS, THE ASSESSEE BESIDES RAISING THE GR OUNDS ON MERIT, HAS ITA NOS.1921 TO 1927/BANG/2016 PAGE 2 OF 41 RAISED PRELIMINARY GROUNDS WITH REGARD TO THE VALID ITY OF THE ASSESSMENT PROCEEDINGS FRAMED U/S. 153A OF THE ACT. SINCE THE GROUNDS RAISED IN THESE APPEALS ARE ALMOST SIMILAR, EXCEPT DIFFERENCE IN QUANTUM, WE PREFER TO REPRODUCE THE GROUNDS RAISED IN ITA NO.1921/BANG /2016 HEREUNDER:- 1. THAT THE ORDER OF THE AUTHORITIES BELOW, IN SO FAR AS IT IS AGAINST THE APPELLANT IS AGAINST THE LAW, FACTS, CI RCUMSTANCES, NATURAL JUSTICE, EQUITY, WITHOUT JURISDICTION, BAD IN LAW AND ALL OTHER KNOWN PRINCIPLES OF LAW. 2. THAT THE TOTAL INCOME COMPUTED AND THE TOTAL TAX COMPUTED IS HEREBY DISPUTED. 3. THE INITIATION OF SEARCH AND SUBSEQUENT PROCEEDI NGS ARE BAD IN LAW, WITHOUT JURISDICTION AND INVALID. 4. THE NOTICE U/S 153A OF THE ACT AND SUBSEQUENT PROCEEDINGS ARE WITHOUT JURISDICTION AND BAD IN LAW . 5. THE AO / CIT (A) ERRED IN CHANGING OPINION ON TH E ISSUES INVOLVED IN THE APPEAL IN THE ABSENCE OF ANY NEW IN FORMATION WHICH WAS NOT ALREADY CONSIDERED IN THE EARLIER ASS ESSMENTS DONE. 6. THE ORDER U/S 153A R.W.S. 143(3) OF THE ACT IS B AD IN LAW AND INFRUCTUOUS AS THE ORDER DOES NOT REFER TO ANY MATERIAL WHICH CAN BE SAID TO GIVE RISE TO UNDISCLOSED INCOME OR I NCRIMINATING IN NATURE, HENCE REQUIRES TO BE CANCELLED. 7. THAT THE AO / CIT (A) ERRED IN NOT PROVIDING SUF FICIENT AND ADEQUATE OPPORTUNITY TO THE APPELLANT AS REQUIR ED UNDER LAW, THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE , HENCE THE ORDER REQUIRES TO BE CANCELLED. 8. THE AO / CIT (A) ERRED IN NOT CONSIDERING THE RE LEVANT MATERIALS, EVIDENCES AND DATA, THUS THE ORDER PASSE D IS WITHOUT APPLICATION OF MIND REQUIRES TO BE CANCELLED. 9. THE AO / CIT (A) ERRED IN RELYING ON MATERIAL AN D STATEMENTS WITHOUT FURNISHING THE SAME TO THE APPEL LANT BEFORE PASSING OF THE ORDERS. ITA NOS.1921 TO 1927/BANG/2016 PAGE 3 OF 41 10. THE AO / CIT (A) ERRED IN RELYING ON MATERIAL A ND STATEMENTS WITHOUT PROVIDING OPPORTUNITY TO CROSS E XAMINE. 11. THE APPROVAL GRANTED PURPORTEDLY U/S 153D OF TH E ACT IS NOT AS PER LAW AS IT IS MECHANICAL IN NATURE AND LA CKS APPLICATION OF MIND. HENCE THE APPROVAL IS VITIATED. 12. THE AO / CIT (A) ERRED IN DISALLOWING BUSINESS PROMOTION EXPENSES U/S 37 OF THE ACT AMOUNTING TO R S. 3,00,41,270/- BASED ON MERE CHANGE OF OPINION WITHO UT ANY FRESH MATERIAL. 13. THE AO / CIT (A) ERRED IN DISALLOWING DISCOUNTS GIVEN TO CUSTOMERS TO THE EXTENT OF RS. 7,20,94,2019/- BASED ON MERE CHANGE OF OPINION WITHOUT ANY FRESH MATERIAL. 14. THE REASONS GIVEN BY THE AO / CIT(A) FOR DISALL OWING THE ABOVE ARE UNSUSTAINABLE AND UNTENABLE IN LAW REQUIR ES TO BE REJECTED. 15. THE APPELLANT SUBMITS THAT THE ABOVE EXPENSES H AVE BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF BUSINESS, HENCE THE ARBITRARY DISALLOWANCES MADE REQUIRES TO BE DELETED. 16. THE APPELLANT DENIES THE LIABILITIES FOR INTERE ST U/S 234A AND 234B OF THE ACT AND NO OPPORTUNITY HAS BEEN GIV EN BEFORE THE LEVY OF INTEREST U/S 234A AND 234B OF THE ACT. 17. WITHOUT PREJUDICE TO THE APPELLANT'S RIGHT OF S EEKING WAIVER BEFORE APPROPRIATE AUTHORITY THE APPELLANT B EGS FOR CONSEQUENTIAL RELIEF IN THE LEVY OF INTEREST U/S 23 4A AND 234B. 18. FOR THE ABOVE AND OTHER GROUNDS AND REASONS WHI CH MAY BE SUBMITTED DURING THE COURSE OF HEARING OF THIS A PPEAL, THE ASSESSEE REQUESTS THAT THE APPEAL BE ALLOWED AS PRA YED AND JUSTICE BE RENDERED. 3. GROUND NOS.3 TO 9 RELATE TO VALIDITY OF THE ASSE SSMENT PROCEEDINGS U/S. 153A OF THE ACT, THEREFORE, WE PREFER TO ADJUD ICATE THESE GROUNDS AT THE THRESHOLD. ITA NOS.1921 TO 1927/BANG/2016 PAGE 4 OF 41 4. THE LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATT ENTION THAT DURING THE AYS 2007-08 TO 2010-11, THE RETURNS WERE FILED ON 1 1.03.2010 AND ASSESSMENT WAS COMPLETED U/S. 143(3) R.W.S. 153A OF THE ACT ON 31.03.2011. THEREAFTER, THE SECOND SEARCH WAS COND UCTED UPON THE ASSESSEE ON 07.12.2012 AND IN RESPONSE THERETO, RET URN WAS FILED ON 17.02.2014. ASSESSMENT WAS COMPLETED U/S. 143(3) R. W.S. 153A ON 31.12.2014. THE LD. COUNSEL FOR THE ASSESSEE FURTH ER CONTENDED THAT WHEN THE ASSESSMENT WAS COMPLETED ON 31.03.2011 U/S. 143 (3) R.W.S. 153A OF THE ACT EXAMINING ALL THE DETAILS, THE SAME DETAILS CANNOT BE RE-EXAMINED WHILE COMPLETING THE ASSESSMENT ON ACCOUNT OF SECON D SEARCH. IT WAS FURTHER CONTENDED THAT DURING THE COURSE OF SECOND SEARCH, NO INCRIMINATING MATERIAL WAS FOUND BY THE SEARCH PARTY ON THE BASIS OF WHICH THE COMPLETED ASSESSMENT CAN BE REOPENED AND ASSESSED FURTHER. 5. WITH REGARD TO AY 2011-12 IN ITA NO.1925/BANG/20 16, THE RETURN WAS FILED ON 23.09.2011 AND THE LAST DATE FOR ISSUA NCE OF NOTICE U/S. 143(2) WAS 30.09.2012. AFTER THE EXPIRY OF THE PERIOD FOR ISSUING NOTICE U/S. 143(2), THE SEARCH WAS CONDUCTED ON 07.12.2012. IN THIS SEARCH NO INCRIMINATING MATERIAL WAS FOUND AGAINST THE ASSESS EE ON THE BASIS OF WHICH ASSESSMENT CAN BE FRAMED. IN SUPPORT OF THE ABOVE CONTENTIONS, THE LD. COUNSEL FOR THE ASSESSEE FURTHER PLACED REL IANCE UPON THE FOLLOWING JUDGMENTS:- ITA NOS.1921 TO 1927/BANG/2016 PAGE 5 OF 41 (1) CIT V. LANCY CONSTRUCTIONS, ITA NOS.528 TO 531/ 2014 DATED 15.12.2015 KARNATAKA HIGH COURT [PAPERBOOK-II, PAGE S 174 TO 179]. (2) DCIT V. HIMANSHU B. KANAKIA, 46 ITR 0756 TRIB)( MUM) [PAPERBOOK-II, PAGES 164 TO 173]. (3) CIT V. SINGHAD TECHNICAL EDUCATION SOCIETY, CI VIL APPEAL NO.11080 OF 2015 DATED 29 AUGUST, 2017 [PAPERBOOK-V , PAGES 790 TO 806]. (4) JAGRAN PRAKASHAN LTD. V. CIT, 368 ITR 0687 (AL L) [PAPERBOOK-V, PAGES 807 TO 811]. (5) KUSUM GUPTA V. DCIT, 35 CCH 0432 (DEL) [PAPERBO OK-V, PAGES 812 TO 820]. 6. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO INVITE D OUR ATTENTION TO THE PANCHANAMA APPEARING AT PAGE NOS. 124, 129 & 130 OF THE COMPILATION AND FROM THE PANCHANAMA NOTHING HAS SURFACED ON THE BASIS OF WHICH THE IMPUGNED ADDITIONS CAN BE MADE IN THE FINAL ASSESSM ENT ORDER. THEREFORE, ONCE THE ASSESSMENT IS COMPLETED AND NO INCRIMINATI NG MATERIAL IS FOUND BY THE SEARCH PARTY IN THE COURSE OF SEARCH, THE CO NCLUDED ASSESSMENT CANNOT BE REOPENED AND ASSESSED FURTHER. 7. THE LD. DR, ON THE OTHER HAND, HAS PLACED RELIAN CE UPON THE ORDER OF THE CIT(APPEALS). IT WAS FURTHER CONTENDED THAT IF THE SEARCH PARTY FINDS SOMETHING DURING THE COURSE OF SEARCH, THEY CAN RE- EXAMINE THE ENTIRE ISSUES WHILE COMPLETING THE ASSESSMENT U/S. 153A OF THE ACT. THE LD. DR HAS ALSO PLACED RELIANCE UPON THE JUDGMENT OF THE J URISDICTIONAL HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY V. DCIT, 49 ITA NOS.1921 TO 1927/BANG/2016 PAGE 6 OF 41 TAXMANN.COM 98 WITH THE SUBMISSION THAT THE AO CAN FRAME THE ASSESSMENT EVEN IF HE DOES NOT FIND INCRIMINATING M ATERIAL. 8. IN REBUTTAL, THE LD. COUNSEL FOR THE ASSESSEE HA S PLACED RELIANCE UPON THE ORDER OF THE TRIBUNAL IN THE CASE OF DCIT V. P.M.A. RAZAK & ORS. IN ITA NO.305/BANG/2017, 1150, 1560 TO 1562 & 1635 TO 1638/BANG/2016 , COPY OF WHICH IS PLACED ON RECORD, WITH THE SUBMISS ION THAT THIS ISSUE HAS BEEN EXAMINED IN DETAIL BY THE TRIBUNAL AND IT HAS BEEN HELD THAT WHEN FINAL ASSESSMENT IS CONCLUDED AND DURING THE COURSE OF SEARCH NO INCRIMINATING MATERIAL IS FOUND, CONCLUDED ASSESSME NT CANNOT BE REOPENED. 9. HAVING CAREFULLY EXAMINED THE ORDERS OF AUTHORIT IES BELOW IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT DURING THE AYS 2 007-08 TO 2010-11, ASSESSMENTS WERE COMPLETED U/S. 143(3) R.W.S. 153A OF THE ACT VIDE ORDER DATED 31.03.2011. THEREAFTER, SEARCH WAS CONDUCTED ON 07.12.2012 IN WHICH NO INCRIMINATING MATERIAL WAS FOUND WHEREFROM IT CAN BE INFERRED THAT THE ISSUE RELATING TO INCRIMINATING MATERIAL FOUND WAS NOT EXAMINED IN THE CONCLUDED ASSESSMENT. SIMILAR IS THE POSITION FOR AY 2011-12 IN WHICH THE RETURN WAS FILED ON 23.09.2011 AND THE LAST DATE FO R ISSUANCE OF NOTICE U/S. 143(2) WAS 30.09.2012. AFTER THE EXPIRY OF ISSUANC E OF NOTICE U/S. 143(2), A SEARCH WAS CONDUCTED ON 07.12.2012 AND NOTICE U/S. 153A WAS ISSUED ON 09.10.2013 TO FRAME THE ASSESSMENT. IN THIS CASE A LSO, NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH ON T HE BASIS OF WHICH ASSESSMENT CAN BE FRAMED. THE ISSUE WHETHER IN THE ABSENCE OF ITA NOS.1921 TO 1927/BANG/2016 PAGE 7 OF 41 INCRIMINATING MATERIAL, CONCLUDED ASSESSMENT CAN BE REOPENED OR ASSESSED FURTHER IN THE LIGHT OF SEARCH CONDUCTED U PON THE ASSESSEE WAS EXAMINED BY THE TRIBUNAL IN THE CASE OF DCIT V. P.M.A. RAZAK & ORS. (SUPRA) IN DETAIL IN THE LIGHT OF VARIOUS JUDICIAL PRONOUN CEMENTS AND THE TRIBUNAL HAS FINALLY CONCLUDED THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, PROCEEDINGS U/S. 153A CANNOT BE INITIATED AND CONCLUDED ASSESSMENT CANNOT BE REOPENED. THE RELEVANT OBSERV ATIONS OF THE TRIBUNAL ARE EXTRACTED HEREUNDER FOR THE SAKE OF RE FERENCE:- 14. HAVING CAREFULLY EXAMINED THE ORDERS OF LOWER AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS AND THE JUDGMENT REFERRE D TO BY THE PARTIES, WE FIND THAT IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY, THE QUESTION OF LAW RAISED BEFORE THE HONBLE HIGH COUR T WAS WITH REGARD TO SCOPE OF REVISION UNDER SECTION 263 OF THE ACT WITH RESPECT TO ASSESSMENT COMPLETED UNDER SECTION 143(3) OF THE ACT IN THE LI GHT OF THE FACT THAT PROCEEDINGS UNDER SECTION 153A WAS INITIATED. FOR THE SAKE OF REFERENCE, WE EXTRACT THE QUESTION OF LAW REFERRED TO HONBLE HIGH COURT AS UNDER: WHEN ONCE THE PROCEEDINGS UNDER SECTION 153A OF T HE ACT IS INITIATED, WHETHER THE COMMISSIONER OF INCOM E TAX CAN INVOKE THE POWER UNDER SECTION 263 OF THE ACT TO RE VIEW THE ORDER OF ASSESSMENT PASSED BY THE ASSESSING AUTHORITY? 15. THE FACTS OF THE CASE WAS THAT ASSESSMENT UNDER SECTION 143(3) WAS COMPLETED BY AN ORDER DATED 31.12.2010. SUBSEQUENT LY, A SEARCH TOOK PLACE IN THE PREMISES OF THE ASSESSEE UNDER SECTION 132 OF THE ACT ON 12.04.2011. IN THE COURSE OF SEARCH, INCRIMINATING MATERIAL LEADING TO NON-DISCLOSURE OF INCOME WAS SEIZED. ACCORDINGLY, PROCEEDINGS UNDER SECTION 153A WAS INITIATED AND IN RESPONSE TO THE N OTICE UNDER SECTION 153A, THE ASSESSEE FILED A RETURN OF INCOME FOR 6 Y EARS AS REQUIRED UNDER THE SAID PROVISION. WHEN THE SAID RETURN WAS UNDER CONSIDERATION, ON 14.03.2013, THE CIT INITIATED PROCEEDINGS UNDER SEC TION 263 OF THE ACT ON THE GROUND THAT ASSESSMENT ORDER DATED 31.12.201 0 PASSED UNDER SECTION 143(3) OF THE ACT IS ERRONEOUS AND PREJUDIC IAL TO THE INTEREST OF THE REVENUE. THE ASSESSEE FILED OBJECTIONS. BUT U LTIMATELY ORDER UNDER SECTION 263 WAS PASSED WHICH WAS CHALLENGED BEFORE THE TRIBUNAL AND ITA NOS.1921 TO 1927/BANG/2016 PAGE 8 OF 41 THE TRIBUNAL HAVING RELIED UPON THE JUDGMENT OF THE SPECIAL BENCH OF ITAT IN THE CASE OF ALL CARGO LOGISTICS LTD., 16 IT R 380 (MUM) SPECIAL BENCH HELD THAT IT IS OPEN TO THE COMMISSIONER TO I NVOKE HIS POWERS UNDER SECTION 263 OF THE ACT IF THE SAID ASSESSMENT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. OTHERW ISE THE REVENUE WILL BE WITHOUT ANY REMEDY. AGAINST THIS ORDER OF TRIBUNAL , MATTER WAS BROUGHT BEFORE THE JURISDICTIONAL HONBLE HIGH COURT AND TH E HIGH COURT RE- EXAMINED THE ENTIRE ISSUE IN THE LIGHT OF JUDGMENTS OF CIT VS. ANIL KUMAR 80 CCH 113 DELHI HIGH COURT AND CAME TO THE C ONCLUSION THAT THE COMMISSIONER BY VIRTUE OF THE POWER CONFERRED U NDER SECTION 263 OF THE ACT, GETS NO JURISDICTION TO INITIATE PROCEEDIN GS UNDER THE SAID PROVISION BECAUSE THE CONDITION PRECEDENT FOR INITI ATING PROCEEDINGS UNDER SECTION 263 IS ANY ORDER PASSED UNDER THE ACT BY THE AO IS ERRONEOUS IN SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE. WHEN ONCE THE ORDER PASSED BY THE AO GETS REOPENED, THER E IS NO ORDER WHICH CAN BE SAID TO BE ERRONEOUS IN SO FAR AS IT IS PREJ UDICIAL TO THE INTEREST OF THE REVENUE. THE RELEVANT OBSERVATION OF THE JURIS DICTIONAL HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY I S EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE: 10. SECTION 133A OF THE ACT STARTS WITH A NON OBST ANTE CLAUSE. THE FETTERS IMPOSED UPON THE ASSESSING OFFICER BY T HE STRICT PROCEDURE TO ASSUME JURISDICTION TO REOPEN THE ASSE SSMENT UNDER SECTIONS 147 AND 148, HAVE BEEN REMOVED BY THE NON OBSTANTE CLAUSE WITH WHICH SUB SECTION (1) OF SECTION 153A O PENS. THE TIME-LIMIT WITHIN WHICH THE NOTICE UNDER SECTION 14 8 CAN BE ISSUED, AS PROVIDED IN SECTION 149 HAS ALSO BEEN MA DE INAPPLICABLE BY THE NON OBSTANTE CLAUSE. SECTION 15 1 WHICH REQUIRES SANCTION TO BE OBTAINED BY THE ASSESSING O FFICER BY ISSUE OF NOTICE TO REOPEN THE ASSESSMENT UNDER SECTION 14 8 HAS ALSO BEEN EXCLUDED IN A CASE COVERED BY SECTION 153A. TH E TIME-LIMIT PRESCRIBED FOR COMPLETION OF AN ASSESSMENT OR REASS ESSMENT BY SECTION 153 HAS ALSO BEEN DONE AWAY WITH IN A CASE COVERED BY SECTION 153A. WITH ALL THE STOPS HAVING BEEN PULLED OUT, THE ASSESSING OFFICER UNDER SECTION 153A HAS BEEN ENTRU STED WITH THE DUTY OF BRINGING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED BY SECTION 153A, BY EVEN MAKING REA SSESSMENTS WITHOUT ANY FETTERS, IF NEED BE. THEREFORE, IT IS C LEAR EVEN IF AN ASSESSMENT ORDER IS PASSED UNDER SECTION 143(1) OR 143(3) OF THE ACT, THE ASSESSING OFFICER IS EMPOWERED TO REOPEN T HOSE PROCEEDINGS AND REASSESS THE TOTAL INCOME TAKING NO TE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED DURING THE SE ARCH. AFTER ITA NOS.1921 TO 1927/BANG/2016 PAGE 9 OF 41 SUCH REOPENING OF THE ASSESSMENT, THE ASSESSING OFF ICER IS EMPOWERED TO ASSESS OR REASSESS THE TOTAL INCOME OF THE AFORESAID YEARS. THE CONDITION PRECEDENT FOR APPLICATION OF S ECTION 153A IS THERE SHOULD BE A SEARCH UNDER SECTION 132. INITIAT ION OF PROCEEDINGS UNDER SECTION 153A IS NOT DEPENDENT ON ANY UNDISCLOSED INCOME BEING UNEARTHED DURING SUCH SEAR CH. THE PROVISO TO THE AFORESAID SECTION MAKES IT CLEAR THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE TOTAL INCOME I N RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SUCH SIX ASSESSMENT YEARS. IF ANY ASSESSMENT PROCEEDINGS ARE PENDING WITHIN THE PERIO D OF SIX ASSESSMENT YEARS REFERRED TO IN THE AFORESAID SUB-S ECTION ON THE DATE OF INITIATION OF THE SEARCH UNDER SECTION 132, THE SAID PROCEEDING SHALL ABATE. IF SUCH PROCEEDINGS ARE ALR EADY CONCLUDED BY THE ASSESSING OFFICER BY INITIATION OF PROCEEDIN GS UNDER SECTION 153A, THE LEGAL EFFECT IS THE ASSESSMENT GETS REOPE NED. THE BLOCK ASSESSMENT ROPED IN ONLY THE UNDISCLOSED INCOME AND THE REGULAR ASSESSMENT PROCEEDINGS WERE PRESERVED, RESULTING IN MULTIPLE ASSESSMENTS. UNDER SECTION 153A, HOWEVER, THE ASSES SING OFFICER HAS BEEN GIVEN THE POWER TO ASSESS OR REASS ESS THE 'TOTAL INCOME' OF THE SIX ASSESSMENT YEARS IN QUESTION IN SEPARATE ASSESSMENT ORDERS. THE ASSESSING OFFICER IS EMPOWER ED TO REOPEN THOSE PROCEEDINGS AND REASSESS THE TOTAL INC OME, TAKING NOTE OF THE UNDISCLOSED INCOME, IF ANY, UNEARTHED D URING THE SEARCH. HE HAS BEEN ENTRUSTED WITH THE DUTY OF BRIN GING TO TAX THE TOTAL INCOME OF AN ASSESSEE WHOSE CASE IS COVERED B Y SECTION 153A, BY EVEN MAKING REASSESSMENTS WITHOUT ANY FETT ERS. THIS MEANS THAT THERE CAN BE ONLY ONE ASSESSMENT ORDER I N RESPECT OF EACH OF THE SIX ASSESSMENT YEARS, IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSED INCOME WOULD BE BROUGHT TO TAX. WHE N ONCE THE PROCEEDINGS ARE INITIATED UNDER SECTION 153A OF THE ACT, THE LEGAL EFFECT IS EVEN IN CASE WHERE THE ASSESSMENT ORDER I S PASSED IT STANDS REOPENED. IN THE EYE OF LAW THERE IS NO ORDE R OF ASSESSMENT. RE-OPENED MEANS TO DEAL WITH OR BEGIN W ITH AGAIN. IT MEANS THE ASSESSING OFFICER SHALL ASSESS OR REASSES S THE TOTAL INCOME OF SIX ASSESSMENT YEARS. ONCE THE ASSESSMENT IS REOPENED, THE ASSESSING AUTHORITY CAN TAKE NOTE OF THE INCOME DISCLOSED IN THE EARLIER RETURN, ANY UNDISCLOSED INCOME FOUND DU RING SEARCH OR AND ALSO ANY OTHER INCOME WHICH IS NOT DISCLOSED IN THE EARLIER RETURN OR WHICH IS NOT UNEARTHED DURING THE SEARCH, IN ORDER TO FIND OUT WHAT IS THE 'TOTAL INCOME' OF EACH YEAR AN D THEN PASS THE ASSESSMENT ORDER. THEREFORE, THE COMMISSIONER BY VI RTUE OF THE POWER CONFERRED UNDER SECTION 263 OF THE ACT GETS N O JURISDICTION ITA NOS.1921 TO 1927/BANG/2016 PAGE 10 OF 41 TO INITIATE PROCEEDINGS UNDER THE SAID PROVISION BE CAUSE THE CONDITION PRECEDENT FOR INITIATING PROCEEDINGS UNDE R SECTION 263 IS ANY ORDER PASSED UNDER THE ACT BY THE ASSESSING OFFICER IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTER EST OF THE REVENUE. ONCE THE ORDER PASSED BY THE ASSESSING OFF ICER GETS REOPENED, THERE IS NO ORDER WHICH CAN BE SAID TO BE ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE WHICH CONFERS JURISDICTION ON THE COMMISSIONER TO EXERCIS E THE POWER OF THE JURISDICTION. 11. THE TRIBUNAL HAS PROCEEDED ON THE ASSUMPTION BY VIRTUE OF THE JUDGMENT OF THE SPECIAL BENCH OF THE MUMBAI, TH E SCOPE OF ENQUIRY UNDER SECTION 153A IS TO BE CONFINED ONLY T O THE UNDISCLOSED INCOME UNEARTHED DURING SEARCH AND IF T HERE IS ANY OTHER INCOME WHICH IS NOT THE SUBJECT MATTER OF SEA RCH, THE SAME CANNOT BE TAKEN INTO CONSIDERATION. THEREFORE, THE REVISIONAL AUTHORITY CAN EXERCISE THE POWER UNDER SECTION 263. IN THE ENTIRE SCHEME OF 153A OF THE ACT., THERE IS NO PROHIBITION FOR THE ASSESSING AUTHORITY TO TAKE NOTE OF SUCH INCOME. ON THE CONTRARY, IT IS EXPRESSLY PROVIDED UNDER SECTION 153A OF THE ACT THE ASSESSING OFFICER SHALL ASSESS OR REASSESS THE 'TOT AL INCOME' OF SIX ASSESSMENT YEARS WHICH MEANS THE SAID TOTAL IN COME INCLUDES INCOME WHICH WAS RETURNED IN THE EARLIER RETURN, TH E INCOME WHICH WAS UNEARTHED DURING SEARCH AND INCOME WHICH IS NOT THE SUBJECT MATTER OF AFORESAID TWO INCOME. IF THE COMM ISSIONER HAS COME ACROSS ANY INCOME THAT THE ASSESSING AUTHORITY HAS NOT TAKEN NOTE OF WHILE PASSING THE EARLIER ORDER, THE SAID M ATERIAL CAN BE FURNISHED TO THE ASSESSING AUTHORITY AND THE ASSESS ING AUTHORITY SHALL TAKE NOTE OF THE SAID INCOME ALSO IN DETERMIN ING THE TOTAL INCOME OF THE ASSESSEE WHEN THE EARLIER PROCEEDINGS ARE REOPENED AND THAT INCOME ALSO SHALL BECOME THE SUBJECT MATTE R OF SAID PROCEEDINGS. IN THAT VIEW OF THE MATTER THE REASONI NG GIVEN BY THE TRIBUNAL IS NOT JUSTIFIED. THE COMMISSIONER DID NOT HAVE JURISDICTION TO INITIATE ANY PROCEEDINGS UNDER SECT ION 263 OF THE ACT. 16. THUS IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY, THE JURISDICTIONAL HIGH COURT HAS NOT LAID DOWN ANY PRO POSITION OF LAW THAT IN THE ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, PROCEEDING UNDER SECTION 153A CAN BE INITIATED AND THE ASSESSMENT COMPLETED UNDER SECTION 143(3) OR 143(1) CAN BE REL OOKED INTO OR RECONSIDERED. WHEREAS IN THE CASE OF LANCY CONSTRU CTION, THE ITA NOS.1921 TO 1927/BANG/2016 PAGE 11 OF 41 JURISDICTIONAL HIGH COURT HAS EXAMINED THE QUESTION OF LAW WHETHER ACCOUNTS IN TALLY COPIED AND SEIZED AT THE TIME OF SEARCH DO NOT COME WITHIN THE PURVIEW OF MATERIAL FOUND DURING THE COU RSE OF SEARCH AS PER RATIO OF THE DECISION OF THE SPECIAL BENCH OF BANGA LORE IN THE CASE OF ALL CARGO LOGISTICS VS. DCIT (SUPRA). 17. WHILE ADJUDICATING THE ISSUE, THE HONBLE HIGH COURT CATEGORICALLY HELD THAT IN THE ABSENCE OF INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, PROCEEDINGS UNDER SECTION 153A CANNOT BE INITIATED IN THE LIGHT OF THE FACT THAT REGULAR ASSESSMENT WAS COMPLETED. IF IT IS TO BE ALLOWED, THEN IT WOULD AMOUNT TO SECOND OPPORTUNITY TO THE R EVENUE TO REOPEN THE CONCLUDED ASSESSMENT. THE RELEVANT OBSERVATION OF THE HONBLE HIGH COURT IS EXTRACTED HEREIN FOR THE SAKE OF REFERENCE : 6. IN OUR VIEW, IF ASSESSMENT IS ALLOWED TO BE REO PENED ON THE BASIS OF SEARCH, IN WHICH NO INCRIMINATING MATERIAL HAD BEEN FOUND, AND MERELY ON THE BASIS OF FURTHER INVESTIGA TING THE BOOKS OF ACCOUNT WHICH HAD BEEN ALREADY SUBMITTED BY THE ASSESSEE AND ACCEPTED BY THE ASSESSING OFFICER AT THE TIME OF RE GULAR ASSESSMENT, THE SAME WOULD AMOUNT TO THE REVENUE GE TTING A SECOND OPPORTUNITY TO REOPEN THE CONCLUDED ASSESSME NT, WHICH IS NOT PERMISSIBLE UNDER THE LAW. MERELY BECAUSE A SE ARCH IS CONDUCTED IN THE PREMISES OF THE ASSESSEE, WOULD NO T ENTITLE THE REVENUE TO INITIATE THE PROCESS OF REASSESSMENT, FO R WHICH THERE IS A SEPARATE PROCEDURE PRESCRIBED IN THE STATUTE. IT IS ONLY WHEN THE CONDITIONS PRESCRIBED FOR REASSESSMENT ARE FULFILLE D THAT A CONCLUDED ASSESSMENT CAN BE REOPENED. THE VERY SAM E ACCOUNTS WHICH WERE SUBMITTED BY THE ASSESSEE, ON THE BASIS OF WHICH ASSESSMENT HAD BEEN CONCLUDED, CANNOT BE REAPPRECIA TED BY THE ASSESSING OFFICER MERELY BECAUSE A SEARCH HAD BEEN CONDUCTED IN THE PREMISES OF THE ASSESSEE. 18. THIS ISSUE WAS ALSO EXAMINED BY DIFFERENT HIGH COURTS. IN THE CASE OF CIT VS. KABUL CHAWLA, THE DELHI HIGH COURT HAS E XAMINED THIS ISSUE AND HAS CATEGORICALLY HELD THAT COMPLETED ASSESSMEN TS CAN BE INTERFERED WITH BY THE AO WHILE MAKING ASSESSMENT U NDER SECTION 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UN EARTHED DURING THE COURSE OF SEARCH WHICH WAS NOT PRODUCED OR NOT ALRE ADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. IN THE JUDGMENT HAVING EXAMINED THE VARIOUS ASPECTS, THE LORDSHIP H AS ELABORATED THE LEGAL POSITION THAT EMERGES ON CONSPECTUS OF SECTIO N 153A(1) OF THE ACT AS UNDER: ITA NOS.1921 TO 1927/BANG/2016 PAGE 12 OF 41 I. ONCE A SEARCH TAKES PLACE UNDER SECTION 132 OF THE ACT, NOTICE UNDER SECTION 153A(1) WILL HAVE TO BE M ANDATORILY ISSUED TO THE PERSON SEARCHED REQUIRING HIM TO FILE RETURNS FOR SIX AYS IMMEDIATELY PRECEDING THE PREVIOUS YEAR RELEVAN T TO THE AY IN WHICH THE SEARCH TAKES PLACE. II. ASSESSMENTS AND REASSESSMENTS PENDING ON THE D ATE OF THE SEARCH SHALL ABATE. THE TOTAL INCOME FOR SU CH AYS WILL HAVE TO BE COMPUTED BY THE AOS AS A FRESH EXERCISE. III. THE AO WILL EXERCISE NORMAL ASSESSMENT POWERS IN RESPECT OF THE SIX YEARS PREVIOUS TO THE RELEVANT A Y IN WHICH THE SEARCH TAKES PLACES. THE AO HAS THE POWER TO ASSES S AND REASSESS THE TOTAL INCOME OF THE AFOREMENTIONED SIX YEARS IN SEPARATE ASSESSMENT ORDERS FOR EACH OF THE SIX YEARS. IN OT HER WORDS THERE WILL BE ONLY ONE ASSESSMENT ORDER IN RESPECT OF EAC H OF THE SIX AYS IN WHICH BOTH THE DISCLOSED AND THE UNDISCLOSE D INCOME WOULD BE BROUGHT TO TAX. IV. ALTHOUGH SECTION 153A DOES NOT SAY THAT ADDITI ONS SHOULD BE STRICTLY MADE ON THE BASIS OF EVIDENCE FO UND IN THE COURSE OF THE SEARCH, OR OTHER POST-SEARCH MATERIAL OR INFORMATION AVAILABLE WITH THE AO WHICH CAN BE RELATED TO THE E VIDENCE FOUND, IT DOES NOT MEAN THAT THE ASSESSMENT CAN BE ARBITRARY OR MADE WITHOUT ANY RELEVANCE OR NEXUS WITH THE SEIZED MATERIAL. OBVIOUSLY AN ASSESSMENT HAS TO BE MADE UNDER THIS S ECTION ONLY ON THE BASIS OF SEIZED MATERIAL. V. IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CAN BE REITERATED AND THE ABAT ED ASSESSMENT OR REASSESSMENT CAN BE MADE. THE WORD ASSESS IN SECTION 153A IS RELATABLE TO ABATED PROCEEDINGS (I. E., THOSE PENDING ON THE DATE OF SEARCH) AND THE WORD REASSE SS TO COMPLETED ASSESSMENT PROCEEDINGS. VI. INSOFAR AS PENDING ASSESSMENTS ARE CONCERNED, THE JURISDICTION TO MAKE THE ORIGINAL ASSESSMENT AND TH E ASSESSMENT UNDER SECTION 153A MERGES INTO ONE. ONLY ONE ASSES SMENT SHALL BE MADE SEPARATELY FOR EACH AY ON THE BASIS OF THE FINDINGS OF THE SEARCH AND ANY OTHER MATERIAL EXISTING OR BROUG HT ON THE RECORD OF THE AO. ITA NOS.1921 TO 1927/BANG/2016 PAGE 13 OF 41 VII. COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER SECTION 15 3A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS OR UND ISCLOSED INCOME OR PROPERTY DISCOVERED IN THE COURSE OF SEAR CH WHICH WERE NOT PRODUCED OR NOT ALREADY DISCLOSED OR MADE KNOWN IN THE COURSE OF ORIGINAL ASSESSMENT. 19. GUJARAT HIGH COURT HAS ALSO EXAMINED THIS ISSUE IN THE CASE OF PR. CIT VS. SAUMYA CONSTRUCTION PVT. LTD., AND HAVING R ELIED UPON THE JUDGMENT OF THE KABUL CHAWLA, DELHI HIGH COURT, THE HONBLE HIGH COURT HAS HELD THAT THE VERY PURPOSE OF THE PROVISI ONS OF SECTION 153A WAS TO MAKE ASSESSMENT IN THE CASE OF SEARCH OR REQ UISITION, THEREBY IT GOES WITHOUT SAYING THAT THE ASSESSMENT SHOULD BE C ONNECTED WITH SOMETHING FOUND DURING THE COURSE OF SEARCH OR THE REQUISITION I.E., INCRIMINATING MATERIALS WHICH REVEALS UNDISCLOSED I NCOME. IN THAT CASE, THE ADDITION MADE WAS NOT BASED ON INCRIMINATING DO CUMENTS FOUND DURING THE COURSE OF SEARCH. THE HONBLE HIGH COUR T HAS HELD THAT AO WAS NOT JUSTIFIED IN MAKING THE ADDITIONS. THE HON BLE GUJARAT HIGH COURT WHILE ADJUDICATING THE ISSUE HAD TAKEN INTO A CCOUNT THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CANARA HOUSING DEVELOPMENT COMPANY VS. DCIT (SUPRA) AND CIT VS. KABUL CHAWLA O F DELHI HIGH COURT. 20. THIS LEGAL PROPOSITION WAS FOLLOWED BY THE TRIB UNAL IN A SERIES OF CASES AND SOME OF THE CASES ARE LISTED HEREUNDER: I) DY.CIT, CC-1, NEW DELHI VS.AGGARWAL ENTERTAINME NT (P.) LTD. (2016) (72 TAXMANN.COM 340),DATED 29.6.2016 (I TA DELHI BENCH 'A). 21. TURNING TO THE FACT OF THE CASE WE FIND THAT UN DISPUTEDLY NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SEARCH AND THESE AVERMENTS IN THIS REGARD WERE NOT DISPUTED BY THE R EVENUE. IT IS ALSO A FACT THAT ORIGINAL ASSESSMENT WAS COMPLETED AS RETU RN OF INCOME WAS FILED ON 19.01.2003 AND THE RETURN WAS PROCESSED UNDER SE CTION 143(1) OF THE ACT. THEREAFTER, NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED ON 18.06.2014. SINCE THE TIME FOR ISSUING OF NOTICE U NDER SECTION 143(2) OF THE ACT AGAINST THE ORIGINAL RETURN HAS BEEN EXPIRE D IT IS DEEMED THAT THE ASSESSMENT WAS CONCLUDED AND BY ISSUING NOTICE UNDE R SECTION 153A, THE REVENUE INTENT TO REOPEN THE CONCLUDED ASSESSMENT W ITHOUT HAVING ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH. IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, PROCEEDINGS UNDER SE CTION 153A CANNOT BE ITA NOS.1921 TO 1927/BANG/2016 PAGE 14 OF 41 INITIATED AND THE CONCLUDED ASSESSMENT CANNOT BE RE OPENED. THEREFORE, WE HAVE NO HESITATION IN HOLDING THAT PROCEEDING IN ITIATED UNDER SECTION 153A ARE NOT VALID AND WE ACCORDINGLY FIND OURSELVE S IN AGREEMENT WITH THE ORDER OF THE CIT(A) AND RIGHTLY KNOCK DOWN THE ASSESSMENT COMPLETED UNDER SECTION 153A OF THE ACT. WE THEREF ORE CONFIRM HIS ORDER. 10. SINCE NOTHING HAS BEEN BROUGHT ON RECORD BY THE REVENUE IN SUPPORT OF ITS CONTENTION THAT DURING THE COURSE OF SEARCH SOME INCRIMINATING MATERIAL WAS FOUND WHICH REQUIRES ADJUDICATION IN T HE ASSESSMENT PROCEEDINGS U/S. 143(3) R.W.S. 153A OF THE ACT, WE HAVE NO OPTION BUT TO CONCLUDE THAT IN THE ABSENCE OF INCRIMINATING MATER IAL FOUND DURING THE COURSE OF SEARCH, ASSESSMENT CONCLUDED CANNOT BE RE OPENED AND REFRAMED U/S. 143(3) R.W.S. 153A OF THE ACT. IN TH E LIGHT OF THESE FACTS, WE HAVE NO HESITATION IN HOLDING THAT ISSUANCE OF NOTI CE U/S. 153A FOR COMPLETING THE ASSESSMENT IS NOT VALID AND WE ACCOR DINGLY QUASH THE ASSESSMENT FRAMED CONSEQUENT THERETO. SINCE WE HAV E QUASHED THE ASSESSMENT, WE FIND NO JUSTIFICATION TO DEAL WITH T HE ISSUES ON MERIT. ITA NOS. 1926 & 1927/BANG/2016 11. IN THESE APPEALS, THE ASSESSEE HAS ASSAILED TH E ORDER OF CIT(APPEALS) INTER ALIA ON THE COMMON GROUNDS, EXCEPT DIFFERENCE IN ITA NOS.1921 TO 1927/BANG/2016 PAGE 15 OF 41 QUANTUM. WE, HOWEVER, EXTRACT THE GROUNDS RAISED I N ITA NO.1927/BANG/2016 IN WHICH THE CIT(APPEALS) HAS PAS SED THE LEAD ORDER AND THE SAME WAS FOLLOWED IN OTHER ASSESSMENT YEARS ON MERIT:- 1. THAT THE ORDER OF THE AUTHORITIES BELOW, IN SO FAR AS IT IS AGAINST THE APPELLANT IS AGAINST THE LAW, FACTS, CI RCUMSTANCES, NATURAL JUSTICE, EQUITY, WITHOUT JURISDICTION, BAD IN LAW AND ALL OTHER KNOWN PRINCIPLES OF LAW. 2. THAT THE TOTAL INCOME COMPUTED AND THE TOTAL TAX COMPUTED IS HEREBY DISPUTED. 3. THAT THE AO / CIT (A) ERRED IN NOT PROVIDING SUF FICIENT AND ADEQUATE OPPORTUNITY TO THE APPELLANT AS REQUIR ED UNDER LAW, THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE , HENCE THE ORDER REQUIRES TO BE CANCELLED. 4. THE AO / CIT (A) ERRED IN NOT CONSIDERING THE RE LEVANT MATERIALS, EVIDENCES AND DATA, THUS THE ORDER PASSE D IS WITHOUT APPLICATION OF MIND REQUIRES TO BE CANCELLED. 5. THE AO / CIT (A) ERRED IN RELYING ON MATERIAL AN D STATEMENTS WITHOUT FURNISHING THE SAME TO THE APPEL LANT BEFORE PASSING OF THE ORDERS. 6. THE AO / CIT (A) ERRED IN RELYING ON MATERIAL AN D STATEMENTS WITHOUT PROVIDING OPPORTUNITY TO CROSS E XAMINE. 7. THE APPROVAL GRANTED PURPORTEDLY U/S 153D OF TH E ACT IS NOT AS PER LAW AS IT IS MECHANICAL IN NATURE AND LA CKS APPLICATION OF MIND. HENCE THE APPROVAL IS VITIATED. 8. THE AO / CIT (A) ERRED IN DISALLOWING BUSINESS PROMOTION EXPENSES U/S 37 OF THE ACT AMOUNTING TO R S. 8,25,00,000/- 9. THE AO / CIT (A) ERRED IN DISALLOWING DISCOUNTS GIVEN TO CUSTOMERS TO THE EXTENT OF S. 23,55,20,169/-. 10. THE AO / CIT (A) ERRED IN DISALLOWING BAD DEBTS WRITTEN OFF AMOUNTING TO RS. 2,37,70,000/-. ITA NOS.1921 TO 1927/BANG/2016 PAGE 16 OF 41 11. THE AO / CIT(A) ERRED IN TREATING THE CASH SEIZ ED OF RS. 30,00,000/- AS UNACCOUNTED CASH, CONTRARY TO FACTS EMERGING FROM RECORD AND BY REJECTING THE EXPLANATIONS AND S UBMISSIONS OF THE APPELLANT. 12. THE REASONS GIVEN BY THE AO / CIT(A) FOR DISALL OWING THE ABOVE ARE UNSUSTAINABLE AND UNTENABLE IN LAW REQUIR ES TO BE REJECTED. 13. THE APPELLANT SUBMITS THAT THE ABOVE EXPENSES H AVE BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF BUSINESS, HENCE THE ARBITRARY DISALLOWANCES MADE REQUIRES TO BE DELETED. 14. THE APPELLANT DENIES THE LIABILITIES FOR INTERE ST U/S 234A AND 234B OF THE ACT AND NO OPPORTUNITY HAS BEEN GIV EN BEFORE THE LEVY OF INTEREST U/S 234A AND 234B OF THE ACT. 15. WITHOUT PREJUDICE TO THE APPELLANT'S RIGHT OF S EEKING WAIVER BEFORE APPROPRIATE AUTHORITY THE APPELLANT B EGS FOR CONSEQUENTIAL RELIEF IN THE LEVY OF INTEREST U/S 23 4A AND 234B. 16. FOR THE ABOVE AND OTHER GROUNDS AND REASONS WHI CH MAY BE SUBMITTED DURING THE COURSE OF HEARING OF THIS A PPEAL, THE ASSESSEE REQUESTS THAT THE APPEAL BE ALLOWED AS PRA YED AND JUSTICE BE RENDERED. 12. THOUGH THE LD. COUNSEL FOR THE ASSESSEE HAS ARG UED THE VALIDITY OF ISSUANCE OF NOTICE U/S. 153A OF THE ACT THROUGH GRO UND NOS. 2 TO 9, BUT UNDER THE GIVEN FACTS WE DO NOT FIND MUCH FORCE THE REIN. WE HAVE, HOWEVER, EXAMINED THE ORDERS OF THE LOWER AUTHORITI ES AND WE FIND THAT FOR AY 2012-13 RETURN WAS FILED ON 27.09.2012 AND FOR A Y 2013-14 ON 20.09.2013. BEFORE CONCLUDING THE ASSESSMENT PROCE EDINGS, THE ASSESSEE WAS SEARCHED ON 07.12.2012. AS PER PROVISIONS OF SE CTION 153A OF THE ACT, WHEREVER ASSESSMENT U/S. 153A IS REQUIRED TO BE FRA MED CONSEQUENT TO THE ITA NOS.1921 TO 1927/BANG/2016 PAGE 17 OF 41 SEARCH, PENDING ASSESSMENT SHALL ABATE AND ASSESSME NT IS TO BE FRAMED U/S 153A R.W.S. 143(3) OF THE ACT. UNDER THESE CIR CUMSTANCES, WE FIND NO INFIRMITY IN ISSUANCE OF NOTICE U/S. 153A OF THE AC T. WE THEREFORE REJECT THIS GROUND OF ASSESSEE RAISED IN THIS REGARD. 13. NOW COMING TO THE MERITS, THE LD. COUNSEL FOR T HE ASSESSEE HAS ASSAILED THE ORDER OF THE CIT(APPEALS) WITH REGARD TO THE ADDITIONS MADE AFTER MAKING DISALLOWANCES OF BUSINESS PROMOTION EX PENSES CLAIMED U/S. 37 OF THE ACT . IN THIS REGARD, THE FACTS IN BRIEF BORNE OUT FRO M THE RECORD ARE THAT THE ASSESSEE HAS DEBITED A SUM OF RS.7,68,77,000 AS BUSINESS PROMOTION EXPENSES FOR AY 2012-13 AND RS.8,25,00,000 IN AY 2013-14, FOR WHICH THE ASSESSEE COULD NOT FURNISH THE DETAILS OF DOCTORWIS E EXPENDITURE NOR COULD IT FURNISH THE CONFIRMATION LETTER FROM THE DOCTOR. CONSEQUENTLY, THE AO HAS OBSERVED THAT THE DETAILS OF BUSINESS PROMOTION EXP ENSES INCURRED BY THE ASSESSEE ON VARIOUS DOCTORS IS NOT AVAILABLE. THE NOTIFICATION ISSUED BY MEDICAL COUNCIL OF INDIA (MCI) THROUGH WHICH MCI HA S IMPOSED PROHIBITION ON MEDICAL PRACTITIONERS AND PROFESSIONAL ASSOCIATION FROM TAKING ANY GIFT, TRAVEL FACILITY, HOSPITALITY FROM PHARMACEUTICALS OR ALLIED HEALTH SECTOR INDUST RIES WAS ALSO EXAMINED BY THE AO. THE AO FURTHER TOOK A NOTE OF CBDT CIRCULAR NO.5/12 DATED 01.08.2012 WHEREIN IT WAS CLARIFIED THAT U/S. 37 OF THE ACT SUCH TYPE OF EXPENDITURE WHICH ARE PROHIBITED BY LAW CANNOT BE ALLOWED. THE AO ACCORDINGLY HELD THAT SINCE THIS EXPENDITURE WAS INCURRED ON DOCTORS, IT IS NOT ALLOWABLE AS DEDUCTION UNDER THE PROVISIONS OF SECTION 37(1) OF THE ACT . ACCORDINGLY, A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE AND SINCE THE ASSESSEE ITA NOS.1921 TO 1927/BANG/2016 PAGE 18 OF 41 COULD NOT FURNISH THE DETAILS OF EXPENDITURE DOCTOR WISE AND THEIR CONFIRMATION LETTERS, THE AO DID NOT ALLOW THE CLAI M OF EXPENDITURE. 14. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT(APPEALS) BUT DID NOT FIND FAVOUR WITH HIM. 15. NOW THE ASSESSEE IS BEFORE US WITH THE SUBMISSI ON THAT AS PER THE REASONS GIVEN BY THE AO, ONLY RS.1,39,80,582 OUT OF RS.8,25,00,000 CAN BE DISALLOWED UNDER THE EXPENSES RELATING TO DOCTOR S AND THE BALANCE DISALLOWANCE MUST BE DELETED AS IT IS UNRELATED TO DOCTORS BUT INCURRED FOR THE PURPOSE OF BUSINESS. THE LD. COUNSEL FOR THE A SSESSEE FURTHER CONTENDED THAT THE CBDT CIRCULAR MENTIONED HEREINAB OVE IS PROSPECTIVE IN NATURE EFFECTIVE FROM 01.08.2012, THEREFORE THE EXP ENSES INCURRED PRIOR TO THAT DATE AMOUNTING TO RS.72,24,991 DOES NOT COME U NDER THE SCOPE OF THE CIRCULAR, HENCE REQUIRES TO BE ALLOWED. IT WAS FUR THER CONTENDED THAT THE BALANCE AMOUNT WAS INCURRED AFTER 01.08.2012 ON THO SE DOCTORS, WHO HAVE ATTENDED THE CONFERENCE & SEMINAR AS FACULTY MEMBER S AND NOT AS DELEGATES. IN SUPPORT OF THIS CONTENTION, HE INVIT ED OUR ATTENTION TO NOTIFICATION OF MCI, ACCORDING TO WHICH MEDICAL PRA CTITIONER SHALL NOT ACCEPT ANY TRAVEL FACILITY INSIDE OR OUTSIDE THE COUNTRY A S DELEGATE. IN THE CASE IN HAND, THE DOCTORS HAVE ATTENDED SEMINARS & CONFEREN CE NOT AS DELEGATES, BUT AS FACULTY MEMBERS, THEREFORE NO DISALLOWANCE C AN BE MADE HAVING INVOKED THE NOTIFICATION OF MCI AND EXPLANATION TO 37(1) OF THE ACT. IN SUPPORT OF HIS CONTENTIONS, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED ITA NOS.1921 TO 1927/BANG/2016 PAGE 19 OF 41 RELIANCE UPON THE ORDER OF TRIBUNAL IN THE CASE OF DCIT V. PHL PHARMA PVT. LTD., 146 DTR 0149, SIMCON FORMULATION (INDIA) PVT. LTD. V. DCIT OF MUMBAI TRIBUNAL AND HONBLE DELHI HIGH COURT JUDGMENT IN THE CASE O F MAX HOSPITAL V. MCI IN W.P.C. NO.1334/DEL/2013 DATE D 10.01.2014. 16. THE LD. DR, ON THE OTHER HAND, HAS PLACED RELIA NCE UPON THE ORDER OF THE CIT(APPEALS). BESIDES IT WAS ALSO CONTENDED BY THE LD. DR THAT NO DETAILS ARE AVAILABLE ON RECORD AS TO WHETHER THE D OCTORS HAVE ATTENDED THE CONFERENCES & SEMINARS AS FACULTY MEMBERS OR AS DEL EGATES. THE ONUS IS UPON THE ASSESSEE TO ESTABLISH THESE FACTS. IN THE ABSENCE OF ANY EVIDENCE IN THIS REGARD, THE REVENUE HAS RIGHTLY DI SALLOWED THE CLAIM. 17. HAVING CAREFULLY EXAMINED THE ORDERS OF AUTHORI TIES BELOW IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT THE AO HAS DISAL LOWED THE BUSINESS PROMOTION EXPENSES CLAIMED BY THE ASSESSEE ONLY ON THE GROUND THAT THEY WERE INCURRED ON DOCTORS WHO ATTENDED SEMINARS & CO NFERENCES. THE REVENUE HAS PLACED RELIANCE UPON THE NOTIFICATION I SSUED BY THE MCI WHEREBY THE MCI IN EXERCISE OF ITS STATUTORY POWERS AMENDED INDIAN MEDICAL COUNCIL (PROFESSIONAL CONDUCT, ETIQUETTE AN D ETHICS) REGULATIONS, 2002 ON 10.12.2009 AND IMPOSED A PROHIBITION ON MED ICAL PRACTITIONERS AND PROFESSIONAL ASSOCIATIONS FROM TAKING ANY GIFT, TRAVEL FACILITY, HOSPITALITY, CASH OR MONETARY GRANT FROM PHARMACEUTICALS OR ALLI ED HEALTH SECTOR INDUSTRIES. THEREAFTER, THE CBDT HAS ISSUED A CIRC ULAR DATED 01.08.2012 CLARIFYING THAT SECTION 37(1) OF THE I.T. ACT PROVI DES FOR DEDUCTION OF ANY ITA NOS.1921 TO 1927/BANG/2016 PAGE 20 OF 41 REVENUE EXPENDITURE (OTHER THAN THOSE FALLING UNDER SECTIONS 30 TO 36) FROM THE BUSINESS INCOME IF SUCH INCOME IS LAID OUT/EXTE NDED WHOLLY OR EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OR PROFESSI ON. HOWEVER, THE EXPLANATION APPENDED TO THIS SUB-SECTION DENIES CLA IM OF ANY SUCH EXPENSE, IF THE SAME HAS BEEN INCURRED FOR A PURPOS E WHICH IS EITHER AN OFFENCE OR PROHIBITED BY LAW. THOUGH EXPLANATION 1 TO SECTION 37 WAS INSERTED BY THE FINANCE ACT, 2014 W.E.F. 01.04.2015 , BUT BEFORE THAT CBDT HAS ALSO ISSUED A CLARIFICATION VIDE CIRCULAR DATED 01.08.2012 NOT TO ALLOW SUCH EXPENDITURE U/S. 37(1) OF THE ACT WHICH ARE PR OHIBITED BY LAW, MEANING THEREBY, BEFORE 01.08.2012 THE EXPENDITURE INCURRED UPON THE DOCTORS TO ATTEND SEMINARS & CONFERENCES MAY BE THE BUSINESS E XPENDITURE OF THE ASSESSEE, BUT THE SAME CANNOT BE ALLOWED AFTER 01.0 8.2012 AS IT WAS PROHIBITED BY NOTIFICATION ISSUED BY THE MCI. THER EFORE, WE FIND FORCE IN THE CONTENTION OF THE ASSESSEE THAT EXPENDITURE INCURRE D TILL 01.08.2012 SHOULD BE ALLOWED AS AN EXPENDITURE TOWARDS BUSINESS INASM UCH AS THE AO HAS SIMPLY DISALLOWED THE ENTIRE EXPENDITURE HAVING INV OKED THE CIRCULAR ISSUED BY THE CBDT. THIS ASPECT WAS EXAMINED BY THE TRIBU NAL IN THE CASE OF DCIT V. PHL PHARMA PVT. LTD. REPORTED IN 146 DTR 0149 IN WHICH IT WAS HELD THAT EXPLANATION I BELOW SECTION 37(1) PROVIDE S AN EMBARGO UPON ALLOWING EXPENDITURE INCURRED BY THE ASSESSEE FOR A NY PURPOSE, WHICH IS AN OFFENCE OR WHICH IS PROHIBITED BY LAW. IN THAT CAS E THE ASSESSMENT YEAR INVOLVED WAS AY 2010-11 AND CBDT ISSUED CIRCULAR IN 2012 AND THE TRIBUNAL HELD THAT SINCE NO EVIDENCE HAS BEEN BROUG HT ON RECORD WHICH ITA NOS.1921 TO 1927/BANG/2016 PAGE 21 OF 41 PROHIBITS PHARMACEUTICAL COMPANY TO INCUR ANY DEVEL OPMENT OR SALES PROMOTION EXPENSES, THE TRIBUNAL ALLOWED THE EXPEND ITURE. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL ARE EXTRACTED HEREUNDE R FOR THE SAKE OF REFERENCE:- 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS MADE BY LD. CIT DR AS WELL AS LD. SR. COUNSEL, MR J.D. MISTRY, PERUSED TH E RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS AND MATERIAL REFERRED TO BEFORE US. THE ENTIRE CONTROVERSY REVOLVES AROUND, WHETHER THE EXP ENDITURES IN QUESTION INCURRED BY THE ASSESSEE (A PHARMACEUTICAL COMPANY) IS HIT BY EXPLANATION 1 BELOW SECTION 37(1) IN VIEW OF CBDT C IRCULAR DATED 01.08.2012, INTERPRETING THE AMENDMENT DATED 10.12. 2009 BROUGHT IN INDIAN MEDICAL COUNCIL REGULATION 2002 OR NOT. THE BREAK-UP OF SALES PROMOTION EXPENSES, WHICH HAS BEEN DISALLOWED BY TH E AO, ARE AS UNDER: SR.NO PARTICULARS OF EXPENSES AMOUNT (IN RS.) 1 CUSTOMER RELATIONSHIP MANAGEMENT EXPENSES (CRM) 7 ,61,96,260 2 KEY ACCOUNT MANAGEMENT EXPENSES(KAM) 2,56,68,50 9 3 GIFT ARTICLES 9,20,22,518 4 COST OF SAMPLES 3,60,85,320 TOTAL 22,99,72,607 THE NATURE OF AFORESAID EXPENSES HAS ALREADY BEEN E XPLAINED ABOVE. NOW WHETHER THE NATURE OF SUCH EXPENDITURE INCURRED BY THE ASSESSEE IS TO BE DISALLOWED IN VIEW OF THE CBDT CIRCULAR DATED 01.08 .2012. FOR THE SAKE OF READY REFERENCE, THE SAID CBDT CIRCULAR NO.5/201 2 IS REPRODUCED HEREUNDER: INADMISSIBILITY OF EXPENSES INCURRED IN PROVIDING FREEBEES TO MEDICAL PRACTITIONER BY PHARMACEUTICAL AND ALLIED HEALTH SECTOR INDUSTRY CIRCULAR NO. 5/2012 [F. NO. 225/142/2012-ITA.II], D ATED 1-8- 2012 ITA NOS.1921 TO 1927/BANG/2016 PAGE 22 OF 41 IT HAS BEEN BROUGHT TO THE NOTICE OF THE BOARD THAT SOME PHARMACEUTICAL AND ALLIED HEALTH SECTOR INDUSTRIES ARE PROVIDING FREEBEES (FREEBIES) TO MEDICAL PRACTITIONERS AND TH EIR PROFESSIONAL ASSOCIATIONS IN VIOLATION OF THE REGULATIONS ISSUED BY MEDICAL COUNCIL OF INDIA (THE 'COUNCIL') WHICH IS A REGULAT ORY BODY CONSTITUTED UNDER THE MEDICAL COUNCIL ACT, 1956. 2. THE COUNCIL IN EXERCISE OF ITS STATUTORY POWERS AMENDED THE INDIAN MEDICAL COUNCIL (PROFESSIONAL CONDUCT, ETIQU ETTE AND ETHICS) REGULATIONS, 2002 (THE REGULATIONS) ON 10-1 2-2009 IMPOSING A PROHIBITION ON THE MEDICAL PRACTITIONER AND THEIR PROFESSIONAL ASSOCIATIONS FROM TAKING ANY GIFT, TRA VEL FACILITY, HOSPITALITY, CASH OR MONETARY GRANT FROM THE PHARMA CEUTICAL AND ALLIED HEALTH SECTOR INDUSTRIES. 3. SECTION 37(1) OF INCOME TAX ACT PROVIDES FOR DED UCTION OF ANY REVENUE EXPENDITURE (OTHER THAN THOSE FAILING UNDER SECTIONS 30 TO 36) FROM THE BUSINESS INCOME IF SUCH EXPENSE IS LAI D OUT/EXPENDED WHOLLY OR EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OR PROFESSION. HOWEVER, THE EXPLANATION APPENDED TO TH IS SUB- SECTION DENIES CLAIM OF ANY SUCH EXPENSE, IF THE SA ME HAS BEEN INCURRED FOR A PURPOSE WHICH IS EITHER AN OFFENCE O R PROHIBITED BY LAW. THUS, THE CLAIM OF ANY EXPENSE INCURRED IN PRO VIDING ABOVE MENTIONED OR SIMILAR FREEBEES IN VIOLATION OF THE P ROVISIONS OF INDIAN MEDICAL COUNCIL (PROFESSIONAL CONDUCT, ETIQU ETTE AND ETHICS) REGULATIONS, 2002 SHALL BE INADMISSIBLE UND ER SECTION 37(1) OF THE INCOME TAX ACT BEING AN EXPENSE PROHIB ITED BY THE LAW. THIS DISALLOWANCE SHALL BE MADE IN THE HANDS O F SUCH PHARMACEUTICAL OR ALLIED HEALTH SECTOR INDUSTRIES O R OTHER ASSESSEE WHICH HAS PROVIDED AFORESAID FREEBEES AND CLAIMED I T AS A DEDUCTIBLE EXPENSE IN ITS ACCOUNTS AGAINST INCOME. 4. IT IS ALSO CLARIFIED THAT THE SUM EQUIVALENT TO VALUE OF FREEBEES ENJOYED BY THE AFORESAID MEDICAL PRACTITIONER OR PR OFESSIONAL ASSOCIATIONS IS ALSO TAXABLE AS BUSINESS INCOME OR INCOME FROM OTHER SOURCES AS THE CASE MAY BE DEPENDING ON THE F ACTS OF EACH CASE. THE ASSESSING OFFICERS OF SUCH MEDICAL PRACTI TIONER OR PROFESSIONAL ASSOCIATIONS SHOULD EXAMINE THE SAME A ND TAKE AN APPROPRIATE ACTION. THIS MAY BE BROUGHT TO THE NOTI CE OF ALL THE OFFICERS OF THE CHARGE FOR NECESSARY ACTION. FROM THE PERUSAL OF THE AFORESAID BOARD CIRCULAR, I T CAN BE SEEN THAT HEAVY RELIANCE HAS BEEN PLACED BY THE CBDT ON THE C IRCULARS ISSUED BY ITA NOS.1921 TO 1927/BANG/2016 PAGE 23 OF 41 THE MEDICAL COUNCIL OF INDIA, WHICH IS THE REGULATO RY BODY CONSTITUTED UNDER THE MEDICAL COUNCIL ACT, 1956. ONE SUCH REG ULATION HAS BEEN ISSUED IS INDIAN MEDICAL COUNCIL PROFESSIONAL COND UCT, ETIQUETTE AND ETHICS) REGULATIONS, 2002. THE SAID REGULATION DEA LS WITH THE PROFESSIONAL CONDUCT, ETIQUETTE AND ETHICS FOR REGI STERED MEDICAL PRACTITIONERS ONLY. CHAPTER 6 OF THE SAID REGULATIO N/NOTIFICATION DEALS WITH UNETHICAL ACTS, WHEREBY A PHYSICIAN OR MEDICAL PRAC TITIONERS SHALL NOT AID OR ABET OR COMMIT ANY OF THE ACTS ILLUSTRATED IN CL AUSE 6.1 TO 6.7 OF THE SAID REGULATION WHICH SHALL BE CONSTRUED AS UNETHIC AL. CLAUSE 6.8 HAS BEEN ADDED (BY WAY OF AMENDMENT DATED 10.12.2009) I N TERMS OF NOTIFICATION PUBLISHED ON 14.12.2009 IN GAZETTE OF INDIA. THE SAID CLAUSE READS AS UNDER:- 6.8 CODE OF CONDUCT FOR DOCTORS AND PROFESSIONAL A SSOCIATION OF DOCTORS IN THEIR RELATIONSHIP WITH PHARMACEUTICAL A ND ALLIED HEALTH SECTOR INDUSTRY. 6.8.1 IN DEALING WITH PHARMACEUTIC AL AND ALLIED HEALTH SECTOR INDUSTRY, A MEDICAL PRACTITIONER SHAL L FOLLOW AND ADHERE TO THE STIPULATIONS GIVEN BELOW: A) GIFTS: A MEDICAL PRACTITIONER SHALL NOT RECEIVE ANY GIFT FROM ANY PHARMACEUTICAL OR ALLIED HEALTH CARE INDUSTRY A ND THEIR SALES PEOPLE OR REPRESENTATIVES. B) TRAVEL FACILITIES: A MEDICAL PRACTITIONER SHALL NOT ACCEPT A ANY TRAVEL FACILITY INSIDE THE COUNTRY OR OUTSIDE, INCL UDING RAIL, AIR, SHIP, CRUISE TICKETS, PAID VACATIONS ETC. FROM ANY PHARMACEUTICAL OR ALLIED HEALTHCARE INDUSTRY OR THEIR REPRESENTATI VES FOR SELF AND FAMILY MEMBERS FOR VACATION OR FOR ATTENDING CONFER ENCES, SEMINARS, WORKSHOPS, CME PROGRAMME ETC AS A DELEGAT E. C) HOSPITALITY: A MEDICAL PRACTITIONER SHALL NOT AC CEPT INDIVIDUALLY ANY HOSPITALITY LIKE HOTEL ACCOMMODATI ON FOR SELF AND FAMILY MEMBERS UNDER ANY PRETEXT. D) CASH OR MONETARY GRANTS: A MEDICAL PRACTITIONER SHALL NOT RECEIVE ANY CASH OR MONETARY GRANTS FROM ANY PHARMA CEUTICAL AND ALLIED HEALTHCARE INDUSTRY FOR INDIVIDUAL PURPOSE I N INDIVIDUAL CAPACITY UNDER ANY PRETEXT. FUNDING FOR MEDICAL RES EARCH, STUDY ETC. CAN ONLY BE RECEIVED THROUGH APPROVED INSTITUT IONS BY MODALITIES LAID DOWN BY LAW / RULES / GUIDELINES AD OPTED BY SUCH APPROVED INSTITUTIONS, IN A TRANSPARENT MANNER. IT SHALL ALWAYS BE FULLY DISCLOSED. ITA NOS.1921 TO 1927/BANG/2016 PAGE 24 OF 41 E) MEDICAL RESEARCH: A MEDICAL PRACTITIONER MAY CAR RY OUT, PARTICIPATE IN WORK, IN RESEARCH PROJECTS FUNDED BY PHARMACEUTICAL AND ALLIED HEALTHCARE INDUSTRIES. A MEDICAL PRACTITIONER IS OBLIGED TO KNOW THAT THE FULFILMENT OF THE FOLLOWING ITEMS (I) TO (VII) WILL BE AN IMPERATIVE FOR UNDERTAKING ANY RESEARCH ASSIGNMENT / PROJECT FUNDED BY INDUSTR Y FOR BEING PROPER AND ETHICAL. THUS, IN ACCEPTING SUCH A POSIT ION A MEDICAL PRACTITIONER SHALL:- (I) ENSURE THAT THE PARTICULAR RESEARCH PROPOSAL(S) HAS THE DUE PERMISSION FROM THE COMPETENT CONCERNED AUTHORITIES . (II) ENSURE THAT SUCH A RESEARCH PROJECT(S) HAS THE CLEARANCE OF NATIONAL/ STATE / INSTITUTIONAL ETHICS COMMITTEES / BODIES. (III) ENSURE THAT IT FULFILS ALL THE LEGAL REQUIREM ENTS PRESCRIBED FOR MEDICAL RESEARCH. (IV) ENSURE THAT THE SOURCE AND AMOUNT OF FUNDING I S PUBLICLY DISCLOSED AT THE BEGINNING ITSELF. (V) ENSURE THAT PROPER CARE AND FACILITIES ARE PROV IDED TO HUMAN VOLUNTEERS, IF THEY ARE NECESSARY FOR THE RESEARCH PROJECT(S). (VI) ENSURE THAT UNDUE ANIMAL EXPERIMENTATIONS ARE NOT DONE AND WHEN THESE ARE NECESSARY THEY ARE DONE IN A SCIENTI FIC AND A HUMANE WAY. (VII) ENSURE THAT WHILE ACCEPTING SUCH AN ASSIGNMEN T A MEDICAL PRACTITIONER SHALL HAVE THE FREEDOM TO PUBLISH THE RESULTS OF THE RESEARCH IN THE GREATER INTEREST OF THE SOCIETY BY INSERTING SUCH A CLAUSE IN THE MOU OR ANY OTHER DOCUMENT / AGREEMENT FOR ANY SUCH ASSIGNMENT. F) MAINTAINING PROFESSIONAL AUTONOMY: IN DEALING WI TH PHARMACEUTICAL AND ALLIED HEALTHCARE INDUSTRY A MED ICAL PRACTITIONER SHALL ALWAYS ENSURE THAT THERE SHALL N EVER BE ANY COMPROMISE EITHER WITH HIS / HER OWN PROFESSIONAL A UTONOMY AND / OR WITH THE AUTONOMY AND FREEDOM OF THE MEDICAL I NSTITUTION. G) AFFILIATION: A MEDICAL PRACTITIONER MAY WORK FOR PHARMACEUTICAL AND ALLIED HEALTHCARE INDUSTRIES IN ADVISORY CAPACITIES, AS CONSULTANTS, AS RESEARCHERS, AS TREA TING DOCTORS OR IN ITA NOS.1921 TO 1927/BANG/2016 PAGE 25 OF 41 ANY OTHER PROFESSIONAL CAPACITY. IN DOING SO, A MED ICAL PRACTITIONER SHALL ALWAYS: (I) ENSURE THAT HIS PROFESSIONAL INTEGRITY AND FREE DOM ARE MAINTAINED. (II) ENSURE THAT PATIENTS INTERESTS ARE NOT COMPRO MISED IN ANY WAY. (III) ENSURE THAT SUCH AFFILIATIONS ARE WITHIN THE LAW. (IV) ENSURE THAT SUCH AFFILIATIONS / EMPLOYMENTS ARE FULLY TRAN SPARENT AND DISCLOSED. H) ENDORSEMENT: A MEDICAL PRACTITIONER SHALL NOT EN DORSE ANY DRUG OR PRODUCT OF THE INDUSTRY PUBLICALLY. ANY STU DY CONDUCTED ON THE EFFICACY OR OTHERWISE OF SUCH PRODUCTS SHALL BE PRESENTED TO AND / OR THROUGH APPROPRIATE SCIENTIFIC BODIES O R PUBLISHED IN APPROPRIATE SCIENTIFIC JOURNALS IN A PROPER WAY. [EMPHASIS ADDED IS OURS] 6. ON A PLAIN READING OF THE AFORESAID NOTIFICATIO N, WHICH HAS BEEN HEAVILY RELIED UPON BY THE DEPARTMENT, IT IS QUITE APPARENT THAT THE CODE OF CONDUCT ENSHRINED THEREIN IS MEANT TO BE FOLLOWE D AND ADHERED BY MEDICAL PRACTITIONERS/DOCTORS ALONE. IT ILLUSTRATES THE VARIOUS KINDS OF CONDUCT OR ACTIVITIES WHICH A MEDICAL PRACTITIONER SHOULD AVOID WHILE DEALING WITH PHARMACEUTICAL COMPANIES AND ALLIED HE ALTH SECTOR INDUSTRY. IT PROVIDES GUIDELINES TO THE MEDICAL PRACTITIONERS OF THEIR ETHICAL CODES AND MORAL CONDUCT. NOWHERE THE REGULATION OR THE NO TIFICATION MENTIONS THAT SUCH A REGULATION OR CODE OF CONDUCT WILL COVE R PHARMACEUTICAL COMPANIES OR HEALTH CARE SECTOR IN ANY MANNER. THE DEPARTMENT HAS NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT THE AFORESA ID REGULATION ISSUED BY MEDICAL COUNCIL OF INDIA IS MEANT FOR PHARMACEUT ICAL COMPANIES IN ANY MANNER. ON THE CONTRARY, BEFORE US THE LEARNED SENIOR COUNSEL, SHRI MISTRY BROUGHT TO OUR NOTICE THE JUDGMENT OF HONBL E DELHI HIGH COURT IN THE CASE OF MAX HOSPITAL VS. MCI IN WPC 1334/201 3 JUDGMENT DATED 10.01.2014, WHEREIN THE MEDICAL COUNCIL OF INDIA AD MITTED THAT THE INDIAN MEDICAL COUNCIL REGULATION OF 2002 HAS JURIS DICTION TO TAKE ACTION ONLY AGAINST THE MEDICAL PRACTITIONERS AND N OT TO HEALTH SECTOR INDUSTRY. RELEVANT PORTION OF THE SAID JUDGMENT REA DS AS UNDER: 6. THE PETITIONER'S GRIEVANCE IS TWOFOLD. FIRSTLY, THAT SINCE THE MEDICAL COUNCIL OF INDIA (PROFESSIONAL CONDUCT, ETI QUETTE AND ITA NOS.1921 TO 1927/BANG/2016 PAGE 26 OF 41 ETHICS) REGULATIONS, 2002 (THE REGULATIONS) HAVE BE EN FRAMED IN EXERCISE OF THE POWER CONFERRED UNDER SECTION 20-A READ WITH SECTION 33 (M) OF THE INDIAN MEDICAL COUNCIL ACT, 1 956, THESE REGULATIONS DO NOT GOVERN OR HAVE ANY CONCERN WITH THE FACILITIES, INFRASTRUCTURE OR RUNNING OF THE HOSPITALS AND SECO NDLY, THAT THE ETHICS COMMITTEE OF THE MCI ACTING UNDER THE REGULA TIONS HAD NO JURISDICTION TO PASS ANY DIRECTION OR JUDGMENT O N THE INFRASTRUCTURE OF ANY HOSPITAL WHICH POWER RESTS SO LELY WITH THE CONCERNED STATE GOVT. THE CASE OF THE PETITIONER IS THAT THE PETITIONER HOSPITAL IS GOVERNED BY THE DELHI NURSIN G HOMES REGISTRATION ACT, 1953. IT IS URGED THAT IN FACT, A N INSPECTION WAS ALSO CARRIED OUT ON 22.07.2011 BY DR. R.N. DASS, ME DICAL SUPERINTENDENT (NURSING HOME) UNDER THE DIRECTORATE OF HEALTH SERVICES, GOVT. OF NCT OF DELHI AND THE NECESSARY E QUIPMENTS AND FACILITIES WERE FOUND TO BE IN ORDER WHICH NEGA TES THE OBSERVATIONS DATED 27.10.2012 OF THE ETHICS COMMITT EE OF THE MCI. IT IS ALSO THE PLEA OF THE PETITIONER HOSPITAL THAT THE PETITIONER WAS NOT PROVIDED AN OPPORTUNITY OF BEING HEARD AND THUS THE PRINCIPLES OF NATURAL JUSTICE WERE VIOLATE D. 7. IN THE COUNTER AFFIDAVIT FILED BY THE RESPONDEN TS, IT IS NOT DISPUTED THAT THE MCI UNDER THE 2002 REGULATIONS HA S JURISDICTION LIMITED TO TAKING ACTION ONLY AGAINST THE REGISTERE D MEDICAL PRACTITIONERS. ITS PLEA HOWEVER, IS THAT IT HAS NOT PASSED ANY OR DER AGAINST THE PETITIONER HOSPITAL THEREFORE; THE PETI TIONER CANNOT HAVE ANY GRIEVANCE AGAINST THE IMPUGNED ORDER. 8. IT IS CLEARLY ADMITTED BY THE RESPONDENT THAT I T HAS NO JURISDICTION TO PASS ANY ORDER AGAINST THE PETITION ER HOSPITAL UNDER THE 2002 REGULATIONS. IN FACT, IT IS STATED THAT IT HAS NOT PASSED ANY ORDER AGAINST THE PETITIONER HOSPITAL. THUS, I NEED NOT GO INTO THE QUESTION WHETHER THE ADEQUATE INFRASTRUCTURE FACILI TIES FOR APPROPRIATE POST-OPERATIVE CARE WERE IN FACT IN EXI STENCE OR NOT IN THE PETITIONER HOSPITAL AND WHETHER THE PRINCIPLES OF NATURAL JUSTICE HAD BEEN FOLLOWED OR NOT WHILE PASSING THE IMPUGNED ORDER. SUFFICE IT TO SAY THAT THE OBSERVATIONS DATE D 27.10.2012 MADE BY THE ETHICS COMMITTEE DO REFLECT UPON THE IN FRASTRUCTURE FACILITIES AVAILABLE IN THE PETITIONER HOSPITAL AND SINCE IT HAD NO JURISDICTION TO GO INTO THE SAME, THE OBSERVATIONS WERE UNCALLED FOR AND CANNOT BE SUSTAINED. [EMPHASIS ADDED IS O URS] ITA NOS.1921 TO 1927/BANG/2016 PAGE 27 OF 41 FROM THE AFORESAID DECISION, IT IS OSTENSIBLY CLEAR THAT THE MEDICAL COUNCIL OF INDIA HAS NO JURISDICTION TO PASS ANY OR DER OR REGULATION AGAINST ANY HOSPITAL OR ANY HEALTH CARE SECTOR UNDE R ITS 2002 REGULATION. SO ONCE THE INDIAN MEDICAL COUNCIL REGULATION DOES NOT HAVE ANY JURISDICTION NOR HAS ANY AUTHORITY UNDER LAW UPON T HE PHARMACEUTICAL COMPANY OR ANY ALLIED HEALTH SECTOR INDUSTRY, THEN SUCH A REGULATION CANNOT HAVE ANY PROHIBITORY EFFECT ON THE PHARMACEU TICAL COMPANY LIKE THE ASSESSEE. IF MEDICAL COUNCIL REGULATION DOES NO T HAVE ANY JURISDICTION UPON PHARMACEUTICAL COMPANIES AND IT I S INAPPLICABLE UPON PHARMA COMPANIES LIKE ASSESSEE THEN, WHERE IS THE V IOLATION OF ANY OF LAW/REGULATION? UNDER WHICH PROVISION THERE IS ANY OFFENCE OR VIOLATION IN INCURRING OF SUCH KIND OF EXPENDITURE. THE RELEV ANT PROVISION OF SECTION 37(1) READS AS UNDER: (1) ANY EXPENDITURE (NOT BEING EXPENDITURE OF THE NATURE DESCRIBED IN SECTIONS 30 TO 36 AND NOT BEING IN THE NATURE OF CAPITAL EXPENDITURE OR PERSONAL EXPENSES OF THE ASS ESSEE), LAID OUT OR EXPENDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF THE BUSINESS OR PROFESSION SHALL BE ALLOWED IN COMPUTIN G THE INCOME CHARGEABLE UNDER THE HEADS PROFITS AND GAINS OF BU SINESS OR PROFESSION EXPLANATION 1 FOR THE REMOVAL OF DOUBTS, IT IS HE REBY DECLARED THAT ANY EXPENDITURE INCURRED BY AN ASSESSEE FOR AN Y PURPOSE WHICH IS AN OFFENCE OR WHICH IS PROHIBITED BY LAW S HALL NOT BE DEEMED TO HAVE BEEN INCURRED FOR THE PURPOSE OF BUS INESS OR PROFESSION AND NO DEDUCTION OR ALLOWANCE SHALL BE M ADE IN RESPECT OF SUCH EXPENDITURE. THE AFORESAID PROVISION APPLIES TO AN ASSESSEE WHO IS CLAIMING DEDUCTION OF EXPENDITURE WHILE COMPUTING HIS BUSINESS INCOME. THE EXPLANATION PROVIDES AN EMBARGO UPON ALLOWING ANY EXPENDITURE I NCURRED BY THE ASSESSEE FOR ANY PURPOSE WHICH IS AN OFFENCE OR WHI CH IS PROHIBITED BY LAW. THIS MEANS THAT THERE SHOULD BE AN OFFENCE BY AN ASSESSEE WHO IS CLAIMING THE EXPENDITURE OR THERE IS ANY KIND OF PR OHIBITION BY LAW WHICH IS APPLICABLE TO THE ASSESSEE. HERE IN THIS CASE, N O SUCH OFFENCE OF LAW HAS BEEN BROUGHT ON RECORD, WHICH PROHIBITS THE PHARMAC EUTICAL COMPANY NOT TO INCUR ANY DEVELOPMENT OR SALES PROMOTION EXPENSE S. A LAW WHICH IS APPLICABLE TO DIFFERENT CLASS OF PERSONS OR PARTICU LAR CATEGORY OF ASSESSEE, SAME CANNOT BE MADE APPLICABLE TO ALL. THE REGULATI ON OF 2002 ISSUED BY THE MEDICAL COUNCIL OF INDIA (SUPRA), PROVIDES LIMI TATION/CURB/ PROHIBITION FOR MEDICAL PRACTITIONERS ONLY AND NOT FOR PHARMACEUTICAL COMPANIES. HERE THE MAXIM OF EXPRESSIO UNIUS EST E XCLUSIO ALTERIUS ITA NOS.1921 TO 1927/BANG/2016 PAGE 28 OF 41 IS CLEARLY APPLICABLE, THAT IS, IF A PARTICULAR EXP RESSION IN THE STATUTE IS EXPRESSLY STATED FOR PARTICULAR CLASS OF ASSESSEE T HEN BY IMPLICATION WHAT HAS NOT BEEN STATED OR EXPRESSED IN THE STATUTE HAS TO BE EXCLUDED FOR OTHER CLASS OF ASSESSEE. IF THE MEDICAL COUNCIL REG ULATION IS APPLICABLE TO MEDICAL PRACTITIONERS THEN IT CANNOT BE MADE APPLIC ABLE TO PHARMA OR ALLIED HEALTH CARE COMPANIES. IF SECTION 37(1) IS A PPLICABLE TO AN ASSESSEE CLAIMING THE EXPENSE THEN BY IMPLICATION, ANY IMPAI RMENT CAUSED BY EXPLANATION1 WILL APPLY TO THAT ASSESSEE ONLY. ANY IMPAIRMENT OR PROHIBITION BY ANY LAW/REGULATION ON A DIFFERENT CL ASS OF PERSON/ASSESSEE WILL NOT IMPINGE UPON THE ASSESSEE CLAIMING THE EXP ENDITURE UNDER THIS SECTION. 18. WE THEREFORE FOLLOWING THE VIEW TAKEN IN THE AF ORESAID ORDER OF THE TRIBUNAL HOLD THAT EXPENDITURE INCURRED ON DOCTORS BEFORE 01.08.2012 BE ALLOWED AS REVENUE EXPENDITURE, BUT THE NATURE OF E XPENDITURE INCURRED THEREAFTER ON DOCTORS IS REQUIRED TO BE EXAMINED BY THE AO WHETHER IT WAS INCURRED ON DOCTORS TO ATTEND THE SEMINARS AS D ELEGATES OR FACULTY MEMBERS. HENCE, THE ORDER OF THE CIT(APPEALS) IS S ET ASIDE IN THIS REGARD AND THE MATTER IS RESTORED TO THE AO TO ADJUDICATE THE ISSUE AFRESH IN THE TERMS INDICATED ABOVE. 19. THE NEXT GROUND IN BOTH THE APPEALS RELATE TO T HE DISALLOWANCES OF DISCOUNTS GIVEN TO THE CUSTOMERS. IN THIS REGARD, FACTS IN BRIEF BORNE OUT FROM THE RECORD ARE THAT IN THE ASSESSMENT YEAR 201 3-14, ASSESSEE HAS DEBITED A SUM OF RS.23,55,30,000/- AS DISCOUNT INTO AUDITED FINANCIALS, BUT IT WAS DISALLOWED BY THE AO HAVING NOTED THAT THE A SSESSEE FAILED TO FURNISH EVIDENCE FOR PAYMENT OF DISCOUNT AND CONFIRMATION L ETTERS FROM ITS CUSTOMERS. THE AO IGNORED THE CREDIT NOTES AND THE CREDIT NOTE LEDGER ITA NOS.1921 TO 1927/BANG/2016 PAGE 29 OF 41 PRODUCED BEFORE HIM ON THE BASIS OF CERTAIN INFORMA TION REVEALED DURING THE COURSE OF ENQUIRY. 20. ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WITH THE SUBMISSIONS THAT RECORDING OF THE SALE TRANSACTION IS AN UNILATERAL PRACTICE FOLLOWED IN ANY BUSINESS ORGANIZATIONS. IN MANY A TIMES, THE SALE AMOUNT RECORDED IN THE BOOKS ARE NOT REALIZED FOR VARIOUS REASONS. WHEN THE SALE ULTIMATELY FORTIFIES, THE INITIALLY RECORDED PRICE MAY NOT BE REALIZED AND IF THERE IS A SHORTFALL IN THE REALIZATION FOR ANY COM PELLING BUSINESS REASONS, THE SAME CANNOT BE TREATED AS SALES RETURNS AND SUC H SHORTFALL, IF ANY, IS PASSED OUT FOR DISCOUNT FOR WHICH CREDIT NOTE IS RA ISED FROM THE CUSTOMERS. THEREFORE, THE REALIZED OF THE REALIZABLE PRICE IS ONLY CONSIDERED FOR PROFIT OR LOSS. IT WAS FURTHER CONTENDED BEFORE THE CIT(A) T HAT THE FUNDAMENTAL REASON FOR THIS PRACTICE IS ONLY TO TAX THE REAL IN COME AS HELD THROUGH VARIOUS JUDICIAL PRONOUNCEMENTS. THE EXPLANATIONS AND EVIDENCES FURNISHED BY THE ASSESSEE WERE CONFRONTED TO THE AO AND A REMAND REPORT WAS CALLED FROM HIM. 21. THE CIT(A) RE-EXAMINED THE CLAIM OF THE ASSESSE E BUT WAS NOT CONVINCED WITH IT. 22. NOW THE ASSESSEE IS BEFORE US. DURING THE COUR SE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENT ION TO CERTAIN FACTS WITH THE SUBMISSION THAT AO DISALLOWED THE DISCOUNT GIVE N BY CREDIT NOTES ON THE ASSUMPTION THAT THE GROSS SALES SHOWN IN THE FI NANCIAL STATEMENTS WAS ITA NOS.1921 TO 1927/BANG/2016 PAGE 30 OF 41 OF RS.156,77,20,000/- AFTER ALLOWING DISCOUNT AND D ISCOUNT WAS ALREADY ALLOWED IN THE SALE INVOICE AND SUCH DISCOUNT WAS D ULY CONSIDERED IN VAT RETURN. AFTER FILING THE SALES TAX RETURN, THE ASS ESSEE COMPANY HAS CLAIMED FURTHER DISCOUNT ALLOWED BY WAY OF CREDIT NOTES OF RS.23,55,30,000/- IN THE AUDITED FINANCIAL STATEMENTS. THE ABOVE ASSUMPTION OF THE AO IS ERRONEOUS AS THE SALES SHOWN IN THE AUDITED FINANCI AL STATEMENT IS GROSS SALES LESS DISCOUNT WHICH IS EVIDENT IN THE AUDITED FINANCIAL STATEMENT 2013-14 WHICH IS AVAILABLE AT PAGE 139-159 OF THE P APERBOOK. HE FURTHER INVITED OUR ATTENTION TO PAGE 151 OF THE COMPILATIO N WHEREIN GROSS SALES REVENUE OF RS.156,77,20,000/- IS SHOWN AND DISCOUNT SHOWN IS RS.23,55,13,000/- AND THE NET SALE REVENUE IS RS.1, 33,89,107/-. BREAKUP OF WHICH IS AVAILABLE AT PAGE 159 OF THE COMPILATIO N. THE DISCOUNT RECONCILIATION SUMMARY AVAILABLE AT PAGE 713-714 IN THE PAPERBOOK WAS ALSO FURNISHED BEFORE THE AO TO ESTABLISH THE FACT THAT DISCOUNT OF RS.23,55,30,000/- INCLUDE THE DISCOUNT GIVEN IN INV OICE OF RS.1,16,91,000/- AND THE SALES SHOWN IS A GROSS SALES AND NOT NET OF DISCOUNT. IT WAS FURTHER SUBMITTED THAT THE AO WAS CONFUSED WITH REGARD TO D ISCOUNT ALLOWED IN THE SALES INVOICE CREDIT NOTES AND SALES RETURNS, THE M ETHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE. THE AO HAS DISALLOWED TH E DISCOUNT ON THE GROUND THAT ASSESSEE HAS RESORTED INTO SUPPRESSING ITS SALES BY BOOKING HUGE DISCOUNTS WITH THE COLOUR OF CREDIT NOTES. SU CH DISCOUNTS ALLOWED VIDE CREDIT NOTES HAVE BEEN DISALLOWED BASED ON FEW RAND OM CONFIRMATIONS RECEIVED FROM THE CUSTOMERS WHO HAVE DENIED OF HAVI NG RECEIVED AND ITA NOS.1921 TO 1927/BANG/2016 PAGE 31 OF 41 ACCOUNTED ALL CREDIT NOTES ISSUED BY THE ASSESSEE A S AGAINST THE TOTAL CUSTOMER BASE OF 600 PLUS HOSPITAL. IN SUPPORT OF HIS CONTENTIONS, RELIANCE WAS PLACED UPON THE JUDGMENT IN THE CASE OF CIT VS. LEADER VALVES LTD., 295 ITR 273 (P&H) AND THE HONBLE SUPREME COURT JUDGMENT IN THE CASE OF SOUTHERN MOTORS V. STATE OF KARNATAKA AND ORS, IN CIVIL APPEAL NOS.10972 10978 OF 2016 DATED 18.01.2017. HE ALS O PLACED RELIANCE UPON THE JUDGMENT OF THE HONBLE KERALA HIGH COURT IN THE CASE OF IFB INDUSTRIES LTD., VS. STATE OF KERALA , COPY OF WHICH IS PLACED AT PAGE NO. 878-887 OF THE COMPILATION. 23. THE LEARNED DR, ON THE OTHER HAND HAS PLACED RE LIANCE UPON THE ORDER OF THE CIT(A). 24. HAVING CAREFULLY EXAMINED THE MATERIAL AVAILABL E ON RECORD IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT THE ASSESS EE HAS GIVEN THE DISCOUNTS ON ITS GROSS SALES. SOMETIMES DISCOUNT WAS GIVEN AT THE TIME OF ISSUING OF INVOICE. THE AO HAS DOUBTED THE DISCOUNT GIVEN BY THE ASSESSEE ON ITS DIFFERENT SALES ON THE BASIS OF THE STATEMENT OF TH OSE PARTIES TO WHOM THE DISCOUNT WAS GIVEN. DURING THE COURSE OF ASSESSMEN T PROCEEDINGS, THE RECEIPT OF DISCOUNT WAS ACCEPTED BY CERTAIN RECIPIE NTS AND IT WAS ALSO EXPLAINED BY FEW HOSPITALS. THE DISCREPANCIES IN A MOUNT OF PAYMENT AND THE DISCOUNT WERE ALSO EXPLAINED BY CERTAIN HOSPITA LS. THROUGH LETTER IT WAS EXPLAINED BY PRAGMA HOSPITAL THAT THERE ARE 2 TYPES OF PATIENTS BEING SERVED CASHLESS BY THE HOSPITALS BECAUSE THESE PAYM ENTS ARE MADE TO THE HOSPITAL BY SOME INSURANCE COMPANIES. FOR THE FIRS T TYPE OF PATIENT WHO ITA NOS.1921 TO 1927/BANG/2016 PAGE 32 OF 41 MAKE CASH PAYMENT WHENEVER ANY STUNT DEPLOYED IN TH E PATIENT, THE VASCULAR CONCEPT OF THE COMPANY/ASSESSEE DIRECTLY S ELLS AND BILLS OF THESE STUNTS TO THE PATIENTS AND PATIENTS DIRECTLY MAKE T HE PAYMENT TO THE COMPANY. COMPANYS REPRESENTATIVES COME EVERY FORT NIGHT AND MONTHLY AND COLLECT THE PAYMENT AS THE REPRESENTATIVES OF T HE COMPANY COME AND COLLECT THE PAYMENT OF DISCOUNT REGULARLY, THEY DO NOT MAINTAIN THAT RECORD. IT WAS FURTHER CLARIFIED THAT PAYMENT FROM HOSPITAL WAS RECEIVED SEPARATELY AND ALSO THEY GIVE THE RECEIPT SEPARATELY WHILE STU NT PAYMENT RECEIPT IS GIVEN BY THE COMPANY. FOR THE SECOND TYPE OF PATIE NTS WHO ARE SERVED CASHLESS HOSPITALS PURCHASE THE STUNTS FROM THE ASS ESSEE AND MAKE THE PAYMENT BY CHEQUE. ALL THESE ASPECTS WERE REQUIRED TO BE EXAMINED BY THE LOWER AUTHORITIES BUT THEY HAVE DISALLOWED THE ENTIRE PAYMENT OF DISCOUNT HAVING DOUBTED THE GENUINENESS OF PAYMENT WITHOUT HAVING EXAMINED THE CLARIFICATION FURNISHED BY THE ASSESSE E. 25. WE HAVE ALSO CONSIDERED THE REVENUES CONTENTIO N THAT SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE TO EXPLAIN THE DISCREPANCY IN DISCOUNTS AND GENUINENESS OF SUBSTANTIAL AMOUNT OF DISCOUNT GIVEN TO THE BUYERS. BUT WE FIND THAT ASSESSEE HAS FURNISHED TH E DETAILS OF PERSONS TO WHOM THE STUNTS WERE SOLD AND THE AO HAS COLLECTED THE EVIDENCES ONLY FROM FEW PERSONS. THE CONTENTION OF THE ASSESSEE T HAT SOMETIME DISCOUNTS WERE GIVEN IN THE INVOICE ITSELF WERE ALS O NOT PROPERLY APPRECIATED OR EXAMINED BY THE AO. WHEN CERTAIN HOSPITALS HAVE CATEGORICALLY STATED THAT THERE ARE TWO TYPES OF PATIENTS AND ONE TYPE O F PATIENT CASHLESS ITA NOS.1921 TO 1927/BANG/2016 PAGE 33 OF 41 TREATMENT IS TO BE GIVEN BY THE HOSPITAL IN THAT CA SE THE HOSPITAL PURCHASE THE STUNTS FROM THE ASSESSEE COMPANY AND WHEREVER T HE CASHLESS TREATMENT IS NOT GIVEN, THE PATIENT IS REQUIRED TO PURCHASE THE STUNTS. THE STUNT WOULD BE DIRECTLY SOLD TO THE PATIENT AND THE CORRESPONDING ENTRIES WITH REGARD TO SALE OF THE STUNT IS NOT RECORDED IN THE BOOKS OF ACCOUNTS OF THE HOSPITAL AND THE HOSPITAL REPRESENTATIVES COLLE CT THE DISCOUNT BY THE COMPANY AGREED UPON GIVEN BY THE COMPANY. THESE AS PECTS NEED TO BE EXAMINED BY THE AO. IN THE LIGHT OF THESE FACTS, W E ARE OF THE CONSIDERED VIEW THAT THE ISSUE WAS NOT BEEN PROPERLY EXAMINED BY THE LOWER AUTHORITIES AND THEY HAVE DISALLOWED THE CLAIM OF T HE ASSESSEE BY MAKING SUPERFICIAL OBSERVATION. THEREFORE, IN THE INTERES T OF JUSTICE, WE SET ASIDE THE ORDER OF THE CIT(A) IN THIS REGARD AND DIRECT T HE AO TO READJUDICATE THE ISSUE AFTER MAKING NECESSARY ENQUIRY AND VERIFICATI ON. IF THE ASSESSEE SUCCEEDS IN ESTABLISHING THAT MOST OF THE TIME THE DISCOUNT WAS GIVEN IN THE INVOICE ITSELF, THE SAME MAY BE ALLOWED WITHOUT MAK ING A FURTHER NECESSARY ENQUIRY. SO FAR AS OTHER ASPECT WITH REGARD TO DIS COUNT GIVEN TO THE HOSPITAL ON CASHLESS TREATMENTS OR ON PAID TREATMENT, THE IS SUE REQUIRES PROPER EXAMINATION BY MAKING NECESSARY ENQUIRY. ACCORDING LY, THE ISSUE IS RESTORED BACK TO THE AO FOR FRESH ADJUDICATION. 26. NEXT GROUND RELATES TO THE DISALLOWANCE OF BAD DEBTS WRITTEN OFF. IN THIS REGARD, OUR ATTENTION WAS INVITED TO THE FACT THAT AO HAS MADE THE DISALLOWANCE OF BAD DEBT HAVING OBSERVED THAT ASSES SEE HAS NOT ESTABLISHED THAT AMOUNT HAS GONE BAD INSPITE OF ALL EFFORTS TAKEN BY HIM. IN ITA NOS.1921 TO 1927/BANG/2016 PAGE 34 OF 41 THIS REGARD, THE LEARNED COUNSEL FOR THE ASSESSEE H AS CONTENDED THAT AFTER THE AMENDMENT, THE BAD DEBT IS REQUIRED TO BE WRITT EN OFF IN THE BOOKS OF ACCOUNT AND THE ASSESSEE IS NOT REQUIRED TO ESTABLI SH THAT BAD DEBT HAS BECOME BAD. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT ASSESSEE HAS TAKEN THE SAME AMOUNT INTO P & L ACCOU NT. THEREFORE, THE CONDITION REQUIRED UNDER SECTION 36(2) IS FULFILLED . THEREFORE, THE DISALLOWANCE OF BAD DEBT MADE BY THE AO IS INCORREC T AND THE SAME SHOULD BE ALLOWED. IT WAS FURTHER CONTENDED THAT THE CIT( A) DID NOT EXAMINE THESE ASPECTS AND CONFIRMED THE DISALLOWANCE. 27. THE LEARNED DR PLACED THE RELIANCE UPON THE ORD ER OF THE CIT(A). 28. HAVING CAREFULLY EXAMINED THE ORDERS OF AUTHORI TIES BELOW IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND FORCE IN THE CONTENTI ONS OF THE ASSESSEE THAT AFTER THE AMENDMENT AND AS PER THE CIRCULAR NO.12/2 016 DATED 30.05.2016 IT IS NOT NECESSARY FOR THE ASSESSEE TO ESTABLISH T HAT DEBT HAS BECOME IRRECOVERABLE. IT IS ENOUGH THAT BAD DEBT IS IRREC OVERABLE IN THE ACCOUNTS OF THE ASSESSEE. THIS POSITION HAS BEEN CLARIFIED BY THE APEX COURT THROUGH ITS JUDGMENT IN THE CASE OF TRF VS. CIT 323 ITR 0397 . THEREAFTER THE BOARD HAS ALSO ISSUED A CIRCULAR IN THE LIGHT OF TH E JUDGMENT OF THE APEX COURT AND CLARIFIED THE POSITION THAT THE CLAIM OF BAD DEBT IN THE PREVIOUS YEAR SHALL BE ADMISSIBLE UNDER SECTION 36(1)(VII) O F THE ACT IF IT IS WRITTEN OFF AS IRRECOVERABLE IN THE BOOKS OF ACCOUNTS OF THE AS SESSEE FOR THAT PREVIOUS YEAR IF IT FULFILLS THE CONDITION STIPULATED IN SEC TION 36(2) OF THE ACT. THE BOARD HAS ALSO ADVISED THE AUTHORITIES CONCERNED TH AT NO APPEAL MAY ITA NOS.1921 TO 1927/BANG/2016 PAGE 35 OF 41 HENCEFORTH BE FILED ON THIS GROUND AND APPEAL ALREA DY FILED IF ANY ON THIS ISSUE BEFORE VARIOUS GROUNDS IN THE TRIBUNAL MAY BE WITHDRAWN AS NOT PRESSED UPON. THE ISSUE WAS ALSO EXAMINED BY JURIS DICTIONAL HIGH COURT IN THE CASE OF AMCO BATTERIES VS. ACIT 232 TAXMANN 0351 AND THEIR LORDSHIPS HAVE ALSO HELD THAT ONCE ASSESSEE WRITES OFF A CLAIM IN ITS BOOKS OF ACCOUNT TREATING IT AS A BAD DEBT UNDER SECTION 36(1)(VII) R.W.S. 36(2), THE ASSESSEE IS ENTITLED FOR DEDUCTION OF THE SAID AMOU NT. 29. TURNING TO THE FACTS OF THE CASE, NOTHING HAS B EEN ESTABLISHED BY THE REVENUE THAT CONDITION STIPULATED UNDER SECTION 36( 2) WAS NOT FULFILLED WITH RESPECT TO ANY OF THE DEBTS WHICH WERE WRITTEN OFF BY THE ASSESSEE DURING THE PREVIOUS YEAR. UNDER THESE CIRCUMSTANCES, WE A RE OF THE VIEW THAT DISALLOWANCE MADE BY THE REVENUE AUTHORITIES IS INC ORRECT AS THE ASSESSEE IS ONLY REQUIRED TO WRITE OFF THE BAD DEBTS AND IS NOT REQUIRED TO ESTABLISH THAT IT HAS BECOME REALLY BAD. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO ALLOW THE CLAIM OF BAD DEBT RAISED BY THE ASSESSEE. 30. GROUND NO.11 IN ITA NO.1927/2016 RELATE TO THE CASH SEIZED OF RS.30 LAKHS AS UNACCOUNTED CASH DURING THE COURSE O F SEARCH. IN THIS REGARD, FACTS BORNE OUT FROM THE RECORD ARE THAT DU RING THE COURSE OF SEARCH CONDUCTED ON 07.12.2012, THE CBI FOUND CASH OF RS.2 9,90,000/- IN DELHI OFFICE OF THE APPELLANT COMPANY. SHRI. PRADEEP KUM AR, EXECUTIVE OF THAT BRANCH WAS ASKED TO EXPLAIN THE SOURCE OF CASH FOUN D DURING THE SEARCH, BUT EXPLANATIONS FURNISHED BY HIM WAS NOT FOUND TO BE SATISFACTORY AND ITA NOS.1921 TO 1927/BANG/2016 PAGE 36 OF 41 ACCORDINGLY THE CASH WAS SEIZED. DURING THE COURSE OF SCRUTINY, ASSESSEE COMPANY WAS GIVEN AN OPPORTUNITY TO EXPLAIN THE CAS H FOUND AND THE ASSESSEE PLACED THE RELIANCE ON THE STATEMENT OF SH RI. PRADEEP KUMAR RECORDED UNDER SECTION 131(1A) OF THE ACT ON 16.01. 2012 THAT CASH OF RS.30 LAKHS WAS RECEIVED ON 06.12.2012 FROM PGMIR (RS.20 LAKHS) AND PRAGMA (RS.10 LAKHS) BOTH BELONGS TO PUNJAB TERRITO RY AND MR. KRISHNA KUMAR WHO IS EMPLOYEE OF ASSESSEE BROUGHT RS.30 LAK HS ON 06.12.2012. THE AO HAS NOT ACCEPTED THIS EXPLANATION ON THIS GR OUND THAT NO CORRESPONDING ENTRY WAS FOUND IN THE PETTY CASH BOO K ON 06.12.2012 MAINTAINED AT THE BRANCH OFFICE OR THE HEAD OFFICE AT BANGALORE. THE AO HAS ALSO NOTED FROM THE CASH BOOK THAT CASH WAS DEP OSITED IN THE DIFFERENT BANKS BY DEBITING VARIOUS PARTIES NAMES AND CREDIT ED IN THE CASH DEPOSIT. THE AO FURTHER NOTED THAT THERE WAS NO CORRESPONDIN G ENTRY OF CASH RECEIVED FROM PGIMER AND PRAGMA. ON THE CONTRARY, ONE ENTRY OF RS.10 LAKHS WAS FOUND IN THE NAME OF M/S. PRAGMA HOSPITAL DATED 30.11.2012. THEREAFTER, AO WROTE A LETTER TO THE PGIMER AND PRA GMA HOSPITALS TO FURNISH DETAILS OF THE LEDGER ACCOUNTS OF THE ASSES SEE COMPANY IN THEIR BOOKS OF ACCOUNTS, DATE OF CASH PAYMENT, REFLECTION OF CASH PAYMENT IN THE CASH BOOK, NAME OF THE PERSON TO WHOM THE CASH WAS PAID. THEREAFTER, THE AO HAS ALSO CONFRONTED THESE EVIDENCES TO THE M ANAGING DIRECTOR OF THE ASSESSEE COMPANY AND IN THE ABSENCE OF SATISFAC TORY EXPLANATIONS, THE AO MADE THE ADDITIONS OF RS.30 LAKHS. ASSESSEE PRE FERRED AN APPEAL BEFORE THE CIT(A) BUT DID NOT FIND FAVOUR WITH HIM. ITA NOS.1921 TO 1927/BANG/2016 PAGE 37 OF 41 31. NOW THE ASSESSEE IS BEFORE US WITH THE SUBMISSI ON THAT ASSESSEE HAS EXPLAINED THE SOURCE OF AVAILABILITY OF CASH BU T IT WAS NOT APPRECIATED BY THE AO. IT WAS SPECIFICALLY TOLD THAT AT THE TI ME OF SEARCH, ASSESSEE EMPLOYEES HAVE STATED THAT CASH RELATED TO ACCOUNTS RECEIVABLE FROM PGIMER HOSPITAL OF RS.20 LAKHS AND M/S. PRAGMA HOSP ITAL OF RS.10 LAKHS COLLECTED ON 06.12.2012. THE PRAGMA HOSPITAL HAVE ADMITTED IN THE REPLY THAT THERE ARE TWO TYPES OF PATIENTS BEING SERVED B Y THEM, ONE WHO MAKE THE CASH PAYMENTS, SECOND WHO HAVE SERVED CASHLESS BY THE HOSPITAL AND THE PATIENTS PAYMENT IS MADE TO HOSPITAL BY SOME I NSURANCE COMPANIES. FOR THE FIRST TYPE OF PATIENT WHO MADE CASH PAYMENT S WHENEVER ANY STUNT IS DEPLOYED IN THE PATIENT, THE ASSESSEE COMPANY DI RECTLY SELLS AND PLACES THE STUNTS TO PATIENT AND PATIENT DIRECTLY MAKE THE PAYMENT TO THE COMPANY. COMPANY REPRESENTATIVES COMES EVERY FORTNIGHT OR MO NTHLY AND COLLECT THE PAYMENT. THIS EXPLANATION WAS NEVER EXAMINED OR EN QUIRED BY THE AO. IT WAS FURTHER CONTENDED THAT THE REPLY GIVEN ACTUALLY CONFIRMS THAT THERE WERE CASH COLLECTIONS OUT OF SALES AND IN SO FAR AS PGIM ER IS CONCERNED, IT WAS CONTENDED THAT MONEY WAS COLLECTED ON 06.12.2012. THOUGH THE HOSPITAL HAS DENIED THE PAYMENT MADE IN NOVEMBER 1012 BUT TH E SAME PAYMENT WAS MADE TO THE ASSESSEE. SINCE THE SUFFICIENT EVI DENCE WAS PLACED ON RECORD, AO SHOULD HAVE EXAMINED AND ENQUIRED INTO T HE GENUINENESS OF THESE STATEMENTS BEFORE MAKING ANY ADDITION. IN TH E LIGHT OF SPECIFIC STAND TAKEN BY THE ASSESSEE, WE ARE OF THE VIEW THAT EXPL ANATION FURNISHED BY THE ASSESSEE SHOULD HAVE BEEN EXAMINED BY THE LOWER AUT HORITIES BEFORE ITA NOS.1921 TO 1927/BANG/2016 PAGE 38 OF 41 MAKING ADDITION OF THE CASH FOUND DURING THE COURSE OF SEARCH. SINCE ADDITION WAS MADE WITHOUT MAKING NECESSARY ENQUIRY, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO THE A O TO RE-EXAMINE THE AVAILABILITY OF CASH DURING THE COURSE OF SEARCH AF TER MAKING A NECESSARY ENQUIRY IN THE LIGHT OF THE EXPLANATIONS FURNISHED BY THE ASSESSEE. 32. GROUND NO. 16 IN ITA NO.1926/2016 RELATE TO THE ADDITION MADE ON ACCOUNT OF CASH DEPOSIT OF RS.10 LAKH IN THE BANK A CCOUNT. IN THIS REGARD, IT IS NOTICED FROM THE ORDER OF THE LOWER AUTHORITIES THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTED CASH OF RS.10 LAKH WAS DEPOSITED IN THE BANK ACCOUNT BUT NO CORRESPONDING ENTRY WAS FOU ND IN THE CASH BOOK. THE MANAGING DIRECTOR OF THE COMPANY ALSO COULD NOT CLARIFY ON THE SAME AND ASKED FOR SOME TIME. THOUGH THE ASSESSEE TRIED TO EXPLAIN THE SOURCE OF DEPOSITS BUT IT WAS NOT ACCEPTED BY THE AO AND H E MADE THE ADDITION OF RS.10 LAKHS ON ACCOUNT OF UNEXPLAINED DEPOSIT IN TH E BANK. ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) BUT DID NOT F IND ANY FAVOUR. 33. NOW THE ASSESSEE PREFERRED AN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT ASSESSEE HAS DEPOSITED RS. 10 LAKH ON 02.08.2011 IN THE BANK OF SBM, KALKAJI BRANCH BUT INADVERTENTLY ITS A CCOUNTANT MADE AN ENTRY IN THE BOOKS OF ACCOUNT ON 29.08.2011. THOSE EXPLANATIONS WERE FURNISHED BEFORE THE AO BUT IT WAS NOT ACCEPTED. I T WAS FURTHER CONTENDED THAT THERE WAS NO CASH DEPOSIT ON 29.08.2011. BUT THE SUFFICIENT CASH WAS AVAILABLE ON 02.08.2011. ON ACCOUNT OF MISTAKE BY THE ACCOUNTANT OF THE ITA NOS.1921 TO 1927/BANG/2016 PAGE 39 OF 41 ASSESSEE, THE DEPOSIT OF CASH WAS WRONGLY ENTERED I N THE BOOKS OF ACCOUNT ON 29.08.2011. THEREFORE, IT REQUIRES PROPER VERIF ICATION BY THE AO. 34. THE LEARNED DR ON THE OTHER HAND PLACED RELIANC E ON THE ORDER OF THE CIT(A). 35. HAVING CAREFULLY EXAMINED THE ORDER OF LOWER AU THORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT ASSESSEE HAS CON TENDED BEFORE THE AO THAT IT WAS ON ACCOUNT OF INADVERTENT MISTAKE, THE CORRESPONDING ENTRY OF DEPOSIT OF CASH WAS NOT MADE ON 02.08.2011 IN THE C ASH BOOK BUT IT WAS DONE ON 29.08.2011 THOUGH THERE WAS NO DEPOSIT OF C ASH IN THE BANK. BUT THESE EXPLANATIONS OF THE ASSESSEE WAS NOT EXAMINED BY THE AO NOR BY THE CIT(A). IN THE LIGHT OF THESE FACTS, WE ARE OF THE VIEW THAT SINCE THE ISSUE WAS NOT PROPERLY EXAMINED BY THE LOWER AUTHORITIES, MATTER SHOULD BE SENT BACK TO THE AO TO READJUDICATE THE ISSUE IN THE LIG HT OF ASSESSEES CONTENTIONS. ACCORDINGLY, WE SET ASIDE THE ORDER O F THE CIT(A) AND RESTORE THE MATTER TO HIS FILE TO READJUDICATE THE ISSUE AF RESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE L IGHT OF ASSESSEES CONTENTIONS. 36. GROUND NO.17 IN ITA NO.1926/B/16 RELATE TO THE ADDITION OF RS.4,44,252/- AS UNDISCLOSED CASH SALES. IN THIS R EGARD, THE FACTS BORNE OUT FROM THE RECORD ARE THAT ON THE BASIS OF EMAIL FOUN D FROM MR. PRADEEP KUMAR OF DELHI OFFICE OF THE ASSESSEE COMPANY TO BA NGALORE OFFICE, THE ITA NOS.1921 TO 1927/BANG/2016 PAGE 40 OF 41 AO MADE AN ADDITION OF RS.4,44,252/- ON ACCOUNT OF UNDISCLOSED CASH SALES. 37. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT (A) WITH THE CONTENTION THAT THE EMAIL STATES THE INVOICE NUMBER THAT COULD BE VERIFIED WITH WHICH IT HAD BEEN ACCOUNTED ON ACCRUAL BASIS A ND THE SUBSEQUENT COLLECTION FROM SUCH PARTIES CANNOT BE ONCE AGAIN C ONSIDERED AS A SALE. CIT(A) WAS NOT CONVINCED WITH THE EXPLANATIONS OF T HE ASSESSEE AND HE CONFIRMED THE ADDITIONS. 38. NOW THE ASSESSEE IS BEFORE US WITH THE SUBMISSI ON THAT ASSESSEES REPRESENTATIVES HAVE COLLECTED THE CASH OF RS.3,11, 000/- FROM HISSAR HOSPITAL AND SAME WAS ENTERED IN BOOKS ON 24.03.201 1 AND AS REGARDS THE CASH COLLECTED FROM PGIMER OF RS.1,33,252/-, THE SA ME WAS RECORDED IN BOOKS ON 14.04.2011. IT WAS RECORDED IN THE BOOKS AS COMMUNICATED BY THE REPRESENTATIVES, HOWEVER, THE CASH REMAINED IN HIS POSSESSION AT DELHI. SUBSEQUENTLY, ON 02.05.2011, HE SENT MAIL T O BANGALORE OFFICE OF HANDING OVER THE CASH TO MUKESH YADAV AT DELHI. TH IS COMMUNICATION HAVE BEEN RELIED ON AND MISINTERPRETED BY THE AO AN D HAS TREATED THE SUM OF RS.4,44,252/- AS UNDISCLOSED CASH SALES. SINCE THIS EXPLANATION OF THE ASSESSEE WAS NOT EXAMINED BY THE LOWER AUTHORITIES, THE MATTER SHOULD BE SENT BACK TO THE AO FOR RE-EXAMINATION. 39. THE LEARNED DR PLACED THE RELIANCE UPON THE ORD ER OF THE CIT(A). 40. HAVING CAREFULLY EXAMINED THE ORDER OF THE LOWE R AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT THIS EXPLA NATION OF THE ASSESSEE WAS ITA NOS.1921 TO 1927/BANG/2016 PAGE 41 OF 41 NOT EXAMINED BY THE AO BY MAKING THE NECESSARY ENQU IRY FROM THE CONCERNED PARTIES. THEREFORE, WE ARE OF THE VIEW T HAT THE MATTER SHOULD BE SENT BACK TO THE AO FOR READJUDICATION. ACCORDINGL Y, WE SET ASIDE THE MATTER TO THE AO FOR READJUDICATION OF THE ISSUE IN THE LIGHT OF ASSESSEES CONTENTIONS AFTER AFFORDING OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. 41. THE LAST GROUND IN THIS APPEAL RELATE TO THE CH ARGING OF INTEREST UNDER SECTION 234A AND 234B. SINCE THIS ISSUE IS CONSEQU ENTIAL IN NATURE, IT NEEDS NO INDEPENDENT ADJUDICATION. 42. ACCORDINGLY THESE APPEALS ARE DISPOSED OFF. 43. IN THE RESULT, APPEALS OF THE ASSESSEE ARE PARTLY A LLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JANUARY, 2018. SD/- SD/- ( JASON P. BOAZ ) ( SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 29 TH JANUARY, 2018. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE