M/s. Edelweiss Broking Limited, Ahmedabad V. The DCIT, Circle-1(3), Ahmedabad

ITA 2021/AHD/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2702 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-10-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 08-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rule of consistency; Transactions in derivatives; Initiation of penalty proceedings; Non-deduction of tax; Speculation loss; Bad and doubtful debts; Tax effect; Futures and options; TDS; Set aside
• Section: 234B; 40(a)(ia); 195; 43; 194J; 73; 13; 22; 37; 28

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASSEM AHMED, ACCOUNTANT MEMBER ./ I.T.A. NO. 2021/AHD/2017 ( / ASSESSMENT YEAR: 2013-14) M/S. EDELWEISS BROKING LTD. (ON BEHALF OF AMALGAMATING COMPANY, EDELWEISS FINANCIAL ADVISORS LTD.) 801-804, 8 TH FLOOR, ABHISHREE AVENUE, OPP. HANUMANJI TEMPLE, NEHRUNAGAR, AMBAWADI, AHMEDABAD- 380015 / VS. DCIT CRICLE-1(3), 1 ST FLOOR, B-109, PRATYAKSH KAR BHAVAN, NR. PANJRAPOLE, AMBAWADI, AHMEDABAD-380015 ./ ./ PAN/GIR NO. : AABCE9421H ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 1939/AHD/2017 ( / ASSESSMENT YEAR: 2013-14) DCIT CRICLE-1(3), 1 ST FLOOR, B-109, PRATYAKSH KAR BHAVAN, NR. PANJRAPOLE, AMBAWADI, AHMEDABAD-380015 / VS. M/S. EDELWEISS BROKING LTD. (ON BEHALF OF AMALGAMATING COMPANY, EDELWEISS FINANCIAL ADVISORS LTD.) 801-804, 8 TH FLOOR, ABHISHREE AVENUE, OPP. HANUMANJI TEMPLE, NEHRUNAGAR, AMBAWADI, AHMEDABAD-380015 ./ ./ PAN/GIR NO. : AABCE9421H ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PURUSHOTTAM KUMAR, SR. DR / RESPONDENT BY : SHRI VARTIK CHOKSHI, AR / DATE OF HEARING 21/10/2021 !'# / DATE OF PRONOUNCEMENT 27/10/2021 ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 2 - $%/ O R D E R PER MAHAVIR PRASAD - JM: THESE TWO CROSS APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE IN ITA NO. 2021/AHD/2017 AND REVENUE IN ITA NO. 1939/AHD/2017 AGAINST THE ORDER OF LD. CIT(A)-10/DC IT. CIR- 1(3)/10589/16-17 DATED 27.06.2017 ARISING OUT OF AS SESSMENT ORDER DATED 24.02.2016. 2. IN ITA NO. 1939/AHD/2017 THE REVENUE HAS TAKEN F OLLOWING GROUNDS OF APPEAL:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN DELETING THE DISALLOWANCE MADE BY THE AO ON ACCOUNT OF DEPRE CIATION, INTEREST AND INSURANCE ON VEHICLE AMOUNTING TO RS. 14,28,238 /-. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN DELETING THE DISALLOWANCE MADE BY THE AO ON ACCOUNT OF PENAL TY OF RS. 9,04,286/-. 3. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN DELETING THE DISALLOWANCE MADE BY THE AO U/S 40(A)(IA) OF RS . 9,16,306/-. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN DELETING THE DISALLOWANCE MADE BY THE AO ON ACCOUNT OF BAD D EBT OF RS. 2,58,14,680/-. 3. FACTS OF THE CASE ARE THAT THE LD. AO IN HIS ORD ER STATED THAT VEHICLES ARE NOT IN THE NAME OF APPELLANT COMPANY B UT ARE IN THE NAMES OF INDIVIDUALS AND FURTHER HOLD THAT ASSESSEE HAS NOT PROVED THAT DOMAIN OVER SUCH ASSET IS VESTED WITH IT. ON THE OTHER HAND, THE ASSESSEES CONTENTION WAS THAT MAIN MOTIVE FOR NOT REGISTERED THE VEHICLE IN THE NAME OF THE ASSESSEE COMPANY WAS THAT IF VEHICLES ARE REGISTERED IN THE NAME OF INDIVIDUAL D IRECTOR SAME WILL MINIMIZE THE TAX PAYABLE TO RTO AND TO AVOID T HE TAX WHICH WOULD HAVE LEGITIMATELY DUE TO THE GOVERNMENT. CON SIDERING FACTS OF THE CASE THE LD. AO DISALLOWED DEPRECIATIO N OF RS. 13,55,778/-, INTEREST EXPENSES OF RS. 55,585/- AND INSURANCE OF RS. ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 3 - 16,875/- AND MADE AGGREGATED DISALLOWANCE OF RS. 14 ,28,238/-. IN APPEAL BEFORE THE LD. CIT(A) THEREAFTER ASSESSEE PR EFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A), GRANTED REL IEF TO THE ASSESSEE AS PREDECESSOR CIT(A) AS APPEARED IN ASSES SEES OWN CASE GRANTED RELIEF TO THE ASSESSEE, THEREFORE, ON THE PRINCIPLE OF CONSISTENCY LD. CIT(A) DELETED ADDITION OF RS. 14,2 8,238/-. 4. AGAINST THE SAID ORDER DEPARTMENT HAS COME BEFOR E US AND ITAT IN SEVERAL MATTERS IN ITA NO. 445/AHD/2016 GRA NTED RELIEF TO THE ASSESSEE AND FOR A.Y. 2012-13 DEPARTMENT APP EAL WAS DISMISSED ON ACCOUNT OF LOW TAX EFFECT. THIS GROUN D OF APPEAL IS, THUS, DISMISSED. 5. NOW WE COME TO GROUND NO. 2 RELATING TO THAT CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWA NCE MADE BY THE LD. AO ON ACCOUNT OF PENALTY OF RS. 9,04,285/-. 6. THE LD. AO HAS DISCUSSED ISSUE IN PARAGRAPH 5 TO 5.4 ON PAGES 9 TO 12 AND CIT(A) HAS DISCUSSED PARA 9 TO 13 ON PAGES 9 TO 11 AND IDENTICAL ISSUE CAME BEFORE THE ITAT IN ITA NO. 413/AHD/2016 IN DEPARTMENTAL APPEAL AND ITAT DISMIS SED THE GROUND OF APPEAL OF THE REVENUE WITH FOLLOWING OBSE RVATION: 6. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL O N RECORD. THE RELEVANT PART OF THE DECISION OF THE ITAT AS REFERRED ABOVE IS REPRO DUCED AS UNDER:- 74. WE HEARD THE RIVAL CONTENTIONS OF BOTH THE PAR TIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE FIRST ISSUE THAT ARISES FO R OUR CONSIDERATION IS WHETHER THE IMPUGNED LOSS INCURRED BY THE ASSESSEE RELATES TO T HE SALE AND PURCHASE ACTIVITIES CARRIED OUT BY THE ASSESSEE FOR ITSELF OR IT RELATE S TO THE OTHER CLIENTS OF THE ASSESSEE. IT IS A QUESTION OF FACT WHICH CAN VERIFIED BASED O N THE DOCUMENTARY EVIDENCE. INDEED, THE ASSESSEE HAS NOT FURNISHED THE SUFFICIE NT DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CONTENTION. BUT LOOKING AT THE AMOUN T OF IMPUGNED LOSS IN COMPARISON TO THE VOLUME OF THE BROKERAGE BUSINESS CARRIED OUT BY THE ASSESSEE, WE FIND THAT SUCH LOSS IS OF NEGLIGIBLE VALUE. FURTHER MORE, THE TAX AUDIT REPORT IN FORM ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 4 - 3CD SUGGESTS THAT THE ASSESSEE IS ENGAGED IN THE AC TIVITY OF STOCK BROKING ONLY AND NOT IN THE ACTIVITY OF SALE PURCHASE OF SECURITIES. THE COPY OF FORM 3 CD IS PLACED ON PAGES 133 TO 165 OF THE PAPER BOOK. SIMILARLY, T HE AO HAS ALSO RECORDED IN HIS ORDER THE NATURE OF BUSINESS OF THE ASSESSEE I.E. S TOCK BROKING. EVEN IN THE EARLIER ASSESSMENT YEAR 2006-07, THE IMPUGNED LOSS WAS ALSO TREATED AS SPECULATIVE IN NATURE BUT THE LEARNED CIT (A) DELETED THE SAME AS THE ASSESSEE WAS ABLE TO JUSTIFY HIS CONTENTION BASED ON THE DOCUMENTARY EVIDENCE TH AT SUCH LOSS RELATES TO ITS CLIENTS. THIS FINDING OF THE LD. C1T-A, IF ANALYZED IN AGGREGATION OF OTHER FACTS I.E. FORM 3CD REPORT, PROFIT & LOSS ACCOUNT, NATURE OF T HE BUSINESS AS RECORDED BY THE AO, THE FACT EMERGES THAT THAT THE ASSESSEE IS NOT CARRYING OUT SHARE TRADING ACTIVITIES IN ITS ACCOUNTS. 75. ON PERUSAL OF THE FINANCIAL STATEMENTS PLACED O N PAGES 59 TO 132 OF THE PAPER BOOK, IT WAS OBSERVED THAT THERE WAS NO TRANS ACTION SHOWN BY THE ASSESSEE AS PURCHASE AND SALE OF THE SHARES. IN VIE W OF THE ABOVE AND AFTER CONSIDERING THE DETAILS AS DISCUSSED ABOVE WE HOLD THAT THE IMPUGNED LOSS INCURRED BY THE ASSESSEE DOES NOT PERTAIN TO ITS AC COUNTS RATHER IT RELATES TO THE ACCOUNTS OF ITS CLIENTS. ACCORDINGLY, WE CONCLU DE THAT THE PROVISIONS OF EXPLANATION TO SECTION 73 OF THE ACT CANNOT BE APPL IED TO THE CASE ON HAND. IN HOLDING SO WE FIND SUPPORT AND GUIDANCE FROM THE ORDER OF THIS TRIBUNAL IN THE CASE OF PARKER SECURITIES LTD VERSUS DCIT RE PORTED IN 102 TTJ 235 WHEREIN IT WAS HELD AS UNDER: 'EXPLANATION TO SECTI ON 73 PROVIDES THAT WHERE ANY PART OF THE BUSINESS OF A COMPANY (OTHER THAN CERTAIN SPECIFIED COMPANIES AS MENTIONED IN THE EXPLANATION) CONSISTS IN THE PURCHASE AND SALE OF .-SHARES OF OTHER COMPANIES, SUCH COMPANY S HALL, FOR THE PURPOSES OF THIS SECTION, BE DEEMED TO BE CARRYING ON A SPECULA TION BUSINESS TO THE EXTENT TO WHICH THE BUSINESS CONSISTS OF THE PURCHA SE AND SALE OF SUCH SHARES. IT IS DEAR FROM IHE SAID PROVISION THAT SAL E AND PURCHASE OF SHARES OF OTHER COMPANIES, WITHIN THE AMBIT OF THE EXPLANATIO N, MUST BE CARRIED OUT AS AN ACTIVITY OF BUSINESS. THE TERM 'BUSINESS' HAS BEEN DEFINED IN SECTION 2(13). NOTING THE DEFINITION OF 'BUSINESS' FROM THE VIEW POINT OF EXPLANATION TO SECTION 73, IT HAS BEEN OBSERVED BY THE KARNATAK A HIGH COURT IN THE CASE OF MYSORE ROLLING MILLS (P.) UD. V. CIT[19921 195 1 TR 404/63 TAXMUN 416 THAT ANY KIND OF VENTURE WOULD NUT FALL WITHIN THIS INCLUSIVE DEFINITION. THE VENTURE OR THE ADVENTURE WILL HAVE TO BE IN THE NAT URE OF TRADE, COMMERCE OR MANUFACTURE. BASICALLY, THE CONCEPT OF BUSINESS INV OLVES A FREQUENT ACTIVITY OF A PARTICULAR NATURE. THEREFORE, TO FIND OUT THAT THE ASSESSEE CARRIED ON PURCHASE AND SALE OF SHARES OF OTHER COMPANIES AS I TS BUSINESS IN A GIVEN CASE, THE FACTS CIF THAT CASE WILL HAVE TO BE EXAMI NED AND THE TESTS WHICH COULD DETERMINE SUCH SITUATION ARE -(I) NATURE OF A SSESSEE'S BUSINESS IN GENERAL, (II) THE PURPOSE BEHIND THE PARTICULAR TRA NSACTION, AND (HI) THE EFFECT OF THE TRANSACTION ETC. IN THE INSTANT CASE, THE NATURE OF THE ASSESSEE'S BUSINESS IN GENERAL WAS TO EARN INCOME AS A BROKER OF STOCK EXCHANGE AND THE PURPOSE BEHIND THE TRANSACTIONS IN REGARD TO WH ICH THE ASSESSEE HAD INCURRED LOSS WAS THE PURCHASE FOR AND ON BEHALF OF CERTAIN CLIENTS 10 EARN BROKERAGE INCOME THEREFROM. IT WAS ONLY AN EVENTUAL ITY THAT SOME OF THE CLIENTS DISOWNED ONLY PART OF THE TRANSACTIONS WHIC H UNDER COMPULSION WERE TO BE TAKEN BY THE ASSESSES AS ITS OWN. I PARA 28]' ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 5 - 75.1 IN VIEW OF THE ABOVE, ONCE IT HAS BEEN HELD TH AT LOSS DOES NOT RELATE TO .E ACTIVITY OF SALE7PURCHASE OF SHARES BY THE ASSESSEE FOR ITSELF, THEN THE PROVISIONS OF EXPLANATION TO SECTION 73 OF THE ACT CANNOT BE APPL IED. HENCE, THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED WHEREAS THE GROUND OF A PPEAL OF THE ASSESSEE IS ALLOWED. VIDE THE ORDER OF THE CO-ORDINATE BENCH OF THE ITA T AS SUPRA, SIMILAR ISSUE ON IDENTICAL FACTS HAVE BEEN DECIDED IN FAVOUR OF T HE ASSESSEE. THEREFORE, APPLYING THE FINDING OF THE CO-ORDINATE BENCH OF THE ITAT AS REFERRED ABOVE ON SIMILAR ISSUE AND IDENTICAL FACTS, THE APPEAL OF THE ASSESSEE IS ALLOWED. THUS, IN PARITY WITH ABOVE SAID ITAT ORDER WE DISM ISSED THIS GROUND OF APPEAL OF THE REVENUE. 7. NOW WE COME TO GROUND NO. 3 OF THE REVENUE THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING TH E DISALLOWANCE MADE BY THE AO UNDER SECTION 40(A)(IA) OF RS. 9,16, 306/-. THE LD. AO HAS DISCUSSED THE ISSUES AT PARAS 7 TO 7.12 ON PAGES 23 TO 43 AND LD. CIT(A) HAS DISCUSSED IN PARAS 19 TO 22 ON PAGES 17 TO 24. 8. ON IDENTICAL ISSUE HAS COVERED IN FAVOUR OF THE ASSESSEE IN ITS OWN CASE VIDE ITAT ORDER FOR A.Y. 2010-11 BEARI NG ITA NO. 268/AHD/2016 FOR A.Y. 2010-11 WITH THE FOLLOWING OB SERVATION: 116. THE NEXT ISSUE RAISED BY THE ASSESSEE IN GROU ND NO. 6 IS THAT THE LEARNED CIT (A) ERRED IN UPHOLDING THE DISALLOW ANCE OF RS. 2,29,932/- REPRESENTING THE PAYMENT MADE TO THE STO CK EXCHANGE ON ACCOUNT OF NON-DEDUCTION OF TDS UNDER SECTION 194J OF THE ACT. 117. THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS SUBMITTED THAT IT HAS INCURRED AN EXPENSE OF RS. 2,29,932/- TOWARD S THE MEMBERSHIP FEES PAID TO THE STOCK EXCHANGES. AS PER THE ASSESS EE SUCH MEMBERSHIP SUBSCRIPTION IS NOT A PAYMENT IN THE NAT URE OF TECHNICAL/PROFESSIONAL SERVICES AND THEREFORE THE S AME IS NOT SUBJECT TO THE TDS UNDER THE PROVISIONS OF SECTION 194J OF THE ACT. 117.1 HOWEVER, THE AO OBSERVED THAT THE STOCK EXCHA NGES ARE PROVIDING A PLATFORM TO ITS MEMBERS FOR CARRYING OU T SALE PURCHASE OF THE SECURITIES/DERIVATIVES THROUGH THE SCREEN BASED SYSTEM. UNDER THIS SYSTEM, THE BUYERS OF THE SECURITIES/DERIVATIV ES ARE ABLE TO FIND ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 6 - OUT THE PROSPECTIVE SELLER AND VICE VERSA. THE STOC K EXCHANGES TO PROVIDE SUCH SERVICES CHARGES VARIOUS FEES SUCH AS LISTING FEES, ADMISSION FEES, ARBITRATION FEES AND TRANSACTION CH ARGES. ACCORDINGLY, THE AO WAS OF THE VIEW THAT SUCH MEMBE RSHIP SUBSCRIPTION AND TRANSACTION CHARGES INCURRED BY TH E ASSESSEE ARE SUBJECT TO THE PROVISIONS OF TDS UNDER SECTION 194J OF THE ACT. BUT THE ASSESSEE FAILED TO DO SO, THEREFORE THE AO DISA LLOWED THE SAME AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 118. ON APPEAL, THE LEARNED CIT(A) CONFIRMED THE OR DER OF THE AO BY OBSERVING AS UNDER: (I) SO FAR AS PAYMENT FOR DEPOSITORY TRANSACTIONS ARE CONCERNED, IT IS OBSERVED THAT CEN TRAL GOVERNMENT HAS ISSUED NOTIFICATION ON 31ST DECEMBER , 2012 WHEREIN IT IS STATED THAT SUCH CHARGES ARE NOT SUBJ ECT TO PROVISIONS OF TDS BUT NOTIFICATION IS APPLICABLE FR OM 1ST JANUARY, 2013 HENCE IT CANNOT HAVE RETROSPECTIVE EF FECT. CONSIDERING THESE FACTS, IT IS HELD THAT APPELLANT HAS FAILED TO DEDUCT TDS ON PAYMENT MADE TO HDFC BANK HENCE DISALLOWANCE UNDER SECTION 40(A)(IA) IS REQUIRED TO BE UPHELD SUBJECT TO LEGAL ISSUE REGARDING APPLICABILITY OF F INANCE ACT, 2012, AS DISCUSSED HEREIN UNDER. (II) SO FAR AS SUBSCRIPTION AND MEMBERSHIP FEES PAI D TO EXCHANGE ARE CONCERNED, IT IS OBSERVED THAT SAME AR E PAID FOR OBTAINING VARIOUS FACILITIES AS PROVIDED BY EXCHANG E FOR CARRYING OUT SCREEN BASED TRADING TRANSACTIONS ON B EHALF OF CLIENTS. THE EXCHANGES HAVE PROVIDED MANAGERIAL SER VICES WHICH ARE IN NATURE OF TECHNICAL SERVICES AS MENTIO NED IN SECTION 194J THE DECISION OF BOMBAY HIGH COURT RELI ED UPON BY APPELLANT IS ON THE ISSUE WHETHER PAYMENT5 OF LE ASE-LINE CHARGES AND VSAT CHARGES ARE SUBJECT TO TDS UNDER S ECTION 194J OF THE ACT OR NOT AND THEY ARE DEALING WITH PA YMENT REFERRED HEREINABOVE HENCE SAME CANNOT BE MADE APPL ICABLE WHILE ADJUDICATING PRESENT ISSUE. THUS, NON-DEDUCTI ON TDS WOULD LEAD TO DISALLOWANCE UNDER SECTION 40(A)(IA) SUBJECT TO LEGAL ISSUE REGARDING APP0LICABILITY OF FINANCE ACT , 2012, AS DISCUSSED HEREIN UNDER: (III) SO FAR AS DISALLOWANCE UNDER SECTION 40(A)(IA ) FOR VSAT AND LEASE-LINE CHARGES ARE CONCERNED, MY PREDECESSO R CIT(APPEALS)-XVI VIDE HIS ORDER DATED 28TH APRIL, 2 011 FOR A.Y. 2008-09 HAS UPHELD THE DISALLOWANCE AND HELD A S UNDER: 10.3.1. I HAVE CONSIDERED THE SUBMISSION MADE BY T HE APPELLANT AND OBSERVATION OF THE ASSESSING OFFICER. WITH RESPECT TO NSE LEASE LINE CHARGES OF RS.5,40,372/- NSC, VSAT CHARGES OF RS.14,56,083/- LEASE LINE EXPENSES OF RS .12,54,523/- APART FROM WHAT THE ASSESSING OFFICER HAS STATED AB OVE, THE MOST IMPORTANT THING IS THAT THE ASSESSEE HAS BEEN MAKING PAYMENT TO THE STOCK EXCHANGE IN RESPECT OF EACH AN D EVERY ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 7 - TRANSACTION MADE BY THE ASSESSEE CALLED TRANSACTION CHARGES IN ADDITION TO VSAT CHARGES AND LEASE THE CHARGES WHIC H ARE QUARTERLY OR ANNUAL PAYMENTS MADE FOR THE USE OF EQ UIPMENT WHICH CONSISTS OF LEASE LINE, DISH, SATELLITE LINK, IDE BOX ETC. THESE CHARGES ARE DEPENDENT UPON THE BANDWIDTH TAKE N BY THE APPELLANT AND NOT ON THE TRANSACTIONS MADE BY THE A PPELLANT FOR THE PURCHASE AND SALE OF SHARES. OVER AND ABOVE , THESE QUARTERLY/ANNUAL PAYMENTS THE APPELLANT IS MAKING P AYMENT FOR EACH AND EVERY TRANSACTION OF SHARE PURCHASE AN D ALSO OF SHARE SALE. THESE ARE TRANSACTION CHARGES. THEREFOR E, THE VSAT CHARGES AND LEASE LINE CHARGES ARE DEFINITELY NOTHI NG BUT RENT FOR THE VARIOUS EQUIPMENT WHICH DOES NOT BELONG TO THE ASSESSEE BUT BELONGS TO EITHER THE STOCK EXCHANGE O R THE SERVICE PROVIDER, WHO MANAGES THIS FACILITY. THESE PAYMENTS ARE EXACTLY SAME AS THOSE MADE BY THE SUBSCRIBER OF LANDLINE TELEPHONE WITH ZERO FREE CALL CHARGES. HE MAKES MON THLY PAYMENT OF FIXED AMOUNT AND USAGE PAYMENT FOR EVERY CALL MADE. SIMILARLY, THE APPELLANT MAKES PAYMENT FOR EV ERY TRANSACTION OF SALE AND EVERY TRANSACTION OF PURCHA SE AND ANOTHER CHARGES FIXED QUARTERLY OR ANNUAL PAYMENT W HETHER ANY PURCHASE/SALE TRANSACTION IS MADE OR NOT. THERE FORE, THESE PAYMENTS ARE NOTHING BUT RENTAL PAYMENTS ON WHICH T DS SHOULD HAVE BEEN DEDUCTED UNDER SE4CTION 194I. 119. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CI T (A), THE ASSESSEE IS IN APPEAL BEFORE US. 120. THE LEARNED AR BEFORE US SUBMITTED THAT THE ST OCK EXCHANGE IS NOT PROVIDING ANY SERVICE IN THE NATURE OF TECHNICA L SERVICES. THEREFORE, THE PROVISIONS FOR THE TDS UNDER SECTION 194J OF THE ACT CANNOT BE APPLIED ON THE PAYMENT MADE BY THE ASSESS EE FOR THE MEMBERSHIP SUBSCRIPTION AND TRANSACTION CHARGES. 121. ON THE OTHER HAND, THE LEARNED DR VEHEMENTLY S UPPORTED THE ORDER OF THE AUTHORITIES BELOW. 122. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH TH E PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FOR ATTR ACTING THE PROVISIONS OF TDS UNDER SECTION 194J OF THE ACT, TH E PAYMENT AS 'FEES FOR TECHNICAL SERVICES' SHOULD HAVE BEEN PAID IN CO NSIDERATION OF RENDERING BY THE RECIPIENT OF PAYMENT OF ANY (A ) M ANAGERIAL SERVICE, (B) TECHNICAL OR CONSULTANCY SERVICES. THE STOCK EX CHANGES MERELY PROVIDE FACILITY TO ITS MEMBERS TO PURCHASE AND SEL L SHARES, SECURITIES, ETC., WITHIN THE FRAMEWORK OF ITS BYE L AWS. IN THE EVENT OF DISPUTE IT PROVIDES FOR MECHANISM FOR SETTLEMENT OF DISPUTE. IT REGULATES CONDITIONS SUBJECT TO WHICH A PERSON CAN BE A MEMBER AND AS TO WHEN AND IN WHAT CIRCUMSTANCES MEMBERSHIP CAN BE TRANSFERRED, CANCELLED, SUSPENDED, ETC. THE EXCHANG E PROVIDES A PLACE WHERE THE MEMBERS CAN MEET AND TRANSACT BUSIN ESS. THE MEMBERSHIP SUBSCRIPTION /TRANSACTION FEE PAID IS ON THE BASIS OF VOLUME OF TRANSACTION EFFECTED BY A MEMBER. THE STO CK EXCHANGES ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 8 - NEITHER RENDER ANY MANAGERIAL SERVICE NOR ANY TECHN ICAL CONSULTANCY SERVICE. THE TRANSACTION FEE IS NOT PAID IN CONSIDE RATION OF ANY SERVICE PROVIDED BY THE STOCK EXCHANGE. IT IS A PAY MENT FOR USE OF FACILITIES PROVIDED BY THE STOCK EXCHANGE AND SUCH FACILITIES ARE AVAILABLE FOR USE BY ANY MEMBER. THE PROVISIONS OF SECTION 194J WHICH CAST A BURDEN ON A PERSON TO DEDUCT TAX AT SO URCE AND TREAT HIM AS A DEFAULTER ON HIS FAILURE TO DEDUCT TAX AT SOURCE, NEED TO BE INTERPRETED STRICTLY AND IN THE ABSENCE OF A CLEAR OBLIGATION ON THE PART OF A PERSON, SPELT OUT IN UNAMBIGUOUS TERMS BY THE PROVISIONS OF SECTION 194J, READ WITH EXPLANATION 2 TO SECTION 9( 1)(VII), SUCH OBLIGATION CANNOT BE IMPLIED OR LEFT TO THE IPSI DI XIT OF THE REVENUE AUTHORITIES. THEREFORE, TRANSACTION FEE PAID COULD NOT BE SAID TO BE A FEE PAID IN CONSIDERATION OF THE STOCK EXCHANGE REN DERING ANY TECHNICAL SERVICES TO THE ASSESSEE. THE PROVISIONS OF SECTION 194J WERE, THUS, NOT ATTRACTED. IN HOLDING SO WE DRAW SU PPORT AND GUIDANCE FROM THE JUDGMENT HONBLE SUPREME COURT IN THE CASE OF CIT VERSUS KOTAK SECURITIES LTD REPORTED IN 67 TAXM ANN.COM 356 WHEREIN IT WAS HELD AS UNDER: 9. THERE IS YET ANOTHER ASPECT OF THE MATTER WHICH , IN OUR CONSIDERED VIEW, WOULD REQUIRE A SPECIFIC NOTICE. T HE SERVICE MADE AVAILABLE BY THE BOMBAY STOCK EXCHANGE [BSE ON LINE TRADING (BOLT) SYSTEM] FOR WHICH THE CHARGES IN QUE STION HAD BEEN PAID BY THE APPELLANT ASSESSEE ARE COMMON SE RVICES THAT EVERY MEMBER OF THE STOCK EXCHANGE IS NECESSAR ILY REQUIRED TO AVAIL OF TO CARRY OUT TRADING IN SECURI TIES IN THE STOCK EXCHANGE. THE VIEW TAKEN BY THE HIGH COURT TH AT A MEMBER OF THE STOCK EXCHANGE HAS AN OPTION OF TRADI NG THROUGH AN ALTERNATIVE MODE IS NOT CORRECT. A MEMBE R WHO WANTS TO CONDUCT HIS DAILY BUSINESS IN THE STOCK EX CHANGE HAS NO OPTION BUT TO AVAIL OF SUCH SERVICES. EACH AND E VERY TRANSACTION BY A MEMBER INVOLVES THE USE OF THE SER VICES PROVIDED BY THE STOCK EXCHANGE FOR WHICH A MEMBER I S COMPULSORILY REQUIRED TO PAY AN ADDITIONAL CHARGE ( BASED ON THE TRANSACTION VALUE) OVER AND ABOVE THE CHARGES F OR THE MEMBERSHIP IN THE STOCK EXCHANGE. THE ABOVE FEATURE S OF THE SERVICES PROVIDED BY THE STOCK EXCHANGE WOULD MAKE THE SAME A KIND OF A FACILITY PROVIDED BY THE STOCK EXCHANGE FOR TRANSACTING BUSINESS RATHER THAN A TECHNICAL SERVIC E PROVIDED TO ONE OR A SECTION OF THE MEMBERS OF THE STOCK EXC HANGE TO DEAL WITH SPECIAL SITUATIONS FACED BY SUCH A MEMBER (S) OR THE SPECIAL NEEDS OF SUCH MEMBER(S) IN THE CONDUCT OF B USINESS IN THE STOCK EXCHANGE. IN OTHER WORDS, THERE IS NO EXC LUSIVITY TO THE SERVICES RENDERED BY THE STOCK EXCHANGE AND EAC H AND EVERY MEMBER HAS TO NECESSARILY AVAIL OF SUCH SERVI CES IN THE NORMAL COURSE OF TRADING IN SECURITIES IN THE STOCK EXCHANGE. SUCH SERVICES, THEREFORE, WOULD UNDOUBTEDLY BE APPR OPRIATE TO BE TERMED AS FACILITIES PROVIDED BY THE STOCK EXCHA NGE ON PAYMENT AND DOES NOT AMOUNT TO TECHNICAL SERVICES PROVIDED BY THE STOCK EXCHANGE, NOT BEING SERVICES SPECIFICA LLY SOUGHT ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 9 - FOR BY THE USER OR THE CONSUMER. IT IS THE AFORESAI D LATTER FEATURE OF A SERVICE RENDERED WHICH IS THE ESSENTIA L HALLMARK OF THE EXPRESSION TECHNICAL SERVICES AS APPEARING IN EXPLANATION 2 TO SECTION 9(1)(VII) OF THE ACT. 10. FOR THE AFORESAID REASONS, WE HOLD THAT THE VIE W TAKEN BY THE BOMBAY HIGH COURT THAT THE TRANSACTION CHARGES PAID TO THE BOMBAY STOCK EXCHANGE BY ITS MEMBERS ARE FOR 'TECHN ICAL SERVICES' RENDERED IS NOT AN APPROPRIATE VIEW. SUCH CHARGES, REALLY, ARE IN THE NATURE OF PAYMENTS MADE FOR FACI LITIES PROVIDED BY THE STOCK EXCHANGE. NO TDS ON SUCH PAYM ENTS WOULD, THEREFORE, BE DEDUCTIBLE UNDER SECTION 194J OF THE ACT. IN VIEW OF THE ABOVE WE HOLD THAT THERE WAS NO OBL IGATION ON THE PART OF THE ASSESSEE TO DEDUCT TAX AT SOURCE. C ONSEQUENTLY, THE PROVISIONS OF SECTION 40(A)( IA) WERE ALSO NOT ATTR ACTED AND, THEREFORE, THE DISALLOWANCE MADE WAS TO BE DELETED. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 123. THE NEXT ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT-A ERRED IN PARTLY CONFIRMING THE DISALLOWANCE MADE BY THE AO ON THE PAYMENT MADE TO THE STOCK EXCHANGE FOR RS. 9,14,619 /-ON ACCOUNT OF VSAT AND LEASE LINE CHARGES. 124. THE AO DURING THE YEAR UNDER CONSIDERATION FOU ND THAT THE ASSESSEE HAS PAID VSAT AND LEASE LINE CHARGES AMOUN TING TO RS. 37,46,013/- WITHOUT DEDUCTING THE TDS UNDER THE PRO VISIONS OF SECTION 194-I OF THE ACT. ACCORDINGLY, THE AO DISAL LOWED THE SAME AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL, THE LEARNED CIT (A) PARTLY CONFIRMED TH E ORDER OF THE AO. 125. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CI T-A THE ASSESSEE IS IN APPEAL BEFORE US. 126. THE LEARNED AR BEFORE US SUBMITTED THAT THE PA YMENT TO THE STOCK EXCHANGE TOWARDS THE VSAT CHARGES AND LEASE L INE CHARGES ARE NOT SUBJECT TO THE PROVISIONS OF TDS UNDER SECTION 194-I OF THE ACT AS THERE IS NO ELEMENT OF INCOME RATHER IT REPRESENTS THE REIMBURSEMENT OF EXPENSES. 127. ON THE OTHER HAND, THE LEARNED DR VEHEMENTLY S UPPORTED THE ORDER OF THE AUTHORITIES BELOW. 128. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. THE ISSUE FOR DEDUCTING THE TDS ON THE P AYMENT MADE TO THE STOCK EXCHANGE ON ACCOUNT OF VSAT CHARGES AND L EASE LINE CHARGES IS NO LONGER RES INTEGRA BY VIRTUE OF THE O RDER OF THE ITAT MUMBAI IN THE CASE OF DESTIMONEY SECURITIES PRIVATE LTD VS. ITO IN ITA NO. 4106 /MUM/2014, AFTER RELYING THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT, WHEREIN IT WAS HELD AS UNDER: ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 10 - 12. WE NOW TAKE UP THE ISSUE AS REGARDS THE LIABIL ITY OF THE ASSESSEE TO DEDUCT TAX AT SOURCE ON PAYMENTS TOWARD S LEASE LINE CHARGES. WE FIND THAT THE ISSUE INVOLVED HEREI N IS NO MORE RES INTEGRA, AS THE SAME IS SQUARELY COVERED IN FAV OUR OF THE ASSESSEE BY THE JUDGMENT OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF:- (I) INCOME TAX COMMISSIONER, MUMBA I CITY-4 VS. ANGEL CAPITAL & DEBIT MARKET LTD. (ITA (L) NO. 475 OF 2011, DATED 28.07.2011)(BOM) (II) CIT-4, VS. M/S. T HE STOCK AND BOND TRADING COMPANY LTD. (ITA NO. 4177 OF 2010 , DATED 14.10.2011)(BOM). WE FIND THAT THE HONBLE JURISDIC TIONAL HIGH COURT IN THE AFORESAID JUDGMENTS HAD CLEARLY H ELD THAT VSAT AND LEASE LINE CHARGES PAID BY THE ASSESSEE TO STOCK EXCHANGE ARE MERELY IN THE NATURE OF REIMBURSEMENT OF THE CHARGES PAID/PAYABLE BY THE STOCK EXCHANGE TO THE D EPARTMENT OF THE TELECOMMUNICATION, AND THUS IN THE ABSENCE O F ANY ELEMENT OF INCOME INVOLVED IN THE SAID PAYMENTS, TH E ISSUE AS REGARDS DEDUCTION OF TAX AT SOURCE ON THE SAME DOES NOT ARISE AT ALL. WE ARE OF THE CONSIDERED VIEW THAT IN THE B ACKDROP OF THE AFORESAID JUDGMENT OF THE HONBLE JURISDICTIONA L HIGH COURT, THE ORDER OF THE CIT(A) TREATING THE ASSESSE E AS BEING IN DEFAULT U/S. 201(1)/201(1A) IN RESPECT OF FAILURE T O DEDUCT TAX AT SOURCE AS REGARDS THE PAYMENTS MADE TOWARDS LEAS E LINE CHARGES, CANNOT BE SUSTAINED, AND IS THUS SET ASIDE . THE GROUND OF APPEAL NO. 2 RAISED BY THE ASSESSEE BEFOR E US IS ALLOWED. 128.1 IN VIEW OF THE ABOVE, WE HOLD THAT THE ASSESS EE WAS NOT SUBJECT TO THE PROVISIONS OF TDS UNDER SECTION 194-I OF THE ACT AS ALLEGED BY THE AUTHORITIES BELOW. ACCORDINGLY NO DISALLOWANCE ON ACCOUNT OF NON-DEDUCTION OF TDS IS WARRANTED. 129. BEFORE PARTING, IT IS ALSO IMPORTANT TO NOTE T HAT THE ITAT IN THE OWN CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 20 08-09 IN ITA NO. 1718/AHD/2011 HAS SET ASIDE THE IDENTICAL ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION AFTER VERIFYING WHETHER PAYE ES HAVE INCLUDED THE AMOUNT RECEIVED FROM THE ASSESSEE IN THEIR INCO ME TAX RETURN. HOWEVER IN THAT ORDER, THERE WAS NO WHISPER ABOUT T HE TRIBUNAL ORDER AS DISCUSSED ABOVE IN THE CASE OF DESTIMONEY SECURITIES PRIVATE LTD VERSUS ITO IN ITA NO. 4106 /MUM/2014, W HICH WAS DECIDED IN FAVOUR OF THE ASSESSEE AFTER PLACING REL IANCE ON THE ORDER OF BOMBAY HIGH COURT AS DISCUSSED HERE IN ABOVE. TH US THE ISSUE ON HAND ON MERIT HAS BEEN DECIDED BY A HIGHER FORUM IN FAVOUR OF ASSESSEE WHICH IS BINDING ON US. ACCORDINGLY, WE AR E NOT IMPRESSED WITH THE FINDING OF THE ITAT IN THE OWN CASE OF THE ASSESSEE AND ACCORDINGLY, THE PRINCIPLES LAID DOWN BY THE ITAT I N ITS OWN CASE IN EARLIER YEARS ARE NOT APPLICABLE. THUS, THE GROUNDS OF APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 11 - 9. NOW WE COME TO GROUND NO. 4 OF THE REVENUE THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING TH E DISALLOWANCE MADE BY THE AO ON ACCOUNT OF BAD DEBTS OF RS. 2,58, 14,680/-. THE LD. AO HAS DISCUSSED THE ISSUES AT PARAS 8 TO 8 .3 ON PAGES 43 TO 52 AND LD. CIT(A) HAS DISCUSSED IN PARAS 23 TO 26 ON PAGES 24 TO 28. 10. ON IDENTICAL ISSUE HAS COVERED IN FAVOUR OF THE ASSESSEE IN ITS OWN CASE VIDE ITAT ORDER FOR A.Y. 2010-11 BEARI NG ITA NO. 413/AHD/2016 FOR A.Y. 2010-11 IN DEPARTMENTAL APPEA L THE ITAT HAS DISMISSED THE GROUND OF APPEAL OF THE REVENUE W ITH THE FOLLOWING OBSERVATION: 51. THE NEXT ISSUE RAISED BY THE REVENUE IS THAT T HE LEARNED CIT-A ERRED IN DELETING THE ADDITION MADE BY THE AO FOR R S. 1,18,89,628/- ON ACCOUNT OF BAD DEBTS AS THE CONDITIONS SPECIFIED UNDER SECTION 36 (2) WERE NOT SATISFIED. 52. THE ASSESSEE DURING THE YEAR UNDER CONSIDERATIO N HAS CLAIMED BAD DEBTS AMOUNTING TO RS. 1,18,89,628/- ONLY. AS P ER THE ASSESSEE, ITS CLIENT HAS PURCHASED THE SHARES THROUGH THE STO CK EXCHANGE BUT FAILED TO MAKE THE PAYMENT TO IT (THE ASSESSEE). AC CORDINGLY, THE ASSESSEE AFTER MAKING THE SALE OF SUCH SHARES, HAS WRITTEN OFF THE LOSS IN THE BOOKS OF ACCOUNTS AS BAD DEBTS AS THE RECOVE RY FOR THE SAME WAS NOT CERTAIN. THE ASSESSEE ALSO CLAIMED THAT THE BROKERAGE ON ACCOUNT OF PURCHASE AND SALE OF SHARES ON BEHALF OF THE CLIENT WAS OFFERED TO TAX BY CREDITING THE PROFIT AND LOSS ACC OUNT. HOWEVER, THE PRINCIPAL AMOUNT OF PURCHASE AND SALE WAS NOT SHOWN IN THE PROFIT AND LOSS ACCOUNT BUT THE DIFFERENCE EITHER AS LOSS OR GAIN WAS REFLECTED IN THE PROFIT AND LOSS ACCOUNT AS BAD DEB T OR GAIN AS THE CASE MAY BE. IT WAS DONE SO, WITH RESPECT TO THE TR ANSACTIONS CARRIED OUT BY IT ON BEHALF OF THE CLIENTS BUT WHO FAILED T O MAKE THE PAYMENT. IN MOST OF THE TRANSACTIONS LOSS WAS INCURRED WHICH WAS CLAIMED AS BAD DEBTS. 53. THE ASSESSEE ALTERNATIVELY CONTENDED THAT SUCH LOSS HAS BEEN INCURRED IN THE COURSE OF THE BUSINESS AND THEREFOR E THE SAME SHOULD BE ALLOWED AS DEDUCTION EITHER UNDER SECTION 28 OR 37 OF THE ACT IF THE SAME IS DISALLOWED UNDER THE PROVISIONS OF SECT ION 36(2) OF THE ACT. 54. HOWEVER, THE AO DISREGARDED THE CONTENTION OF T HE ASSESSEE BY OBSERVING THAT THE DEDUCTION ON ACCOUNT OF BAD DEBT S CAN BE ADMITTED ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 12 - ONLY UPON THE FULFILMENT OF THE CONDITION SPECIFIED UNDER SECTION 36(1) (VII) R.W.S 36(2) OF THE ACT. IN THE CASE ON HAND, THE SPECIFIED CONDITIONS HAVE NOT BEEN COMPLIED WITH THEREFORE TH E SAME CANNOT BE ALLOWED AS DEDUCTION UNDER SECTION 36 (1)(VII)/36 ( 2), 37 OR 28 OF THE ACT. 55. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE L EARNED CIT-A, WHO DELETED THE ADDITION MADE BY THE AO BY OBSERVIN G AS UNDER:- ON CAREFUL CONSIDERATION OF ENTIRE FACTS IT IS OB SERVED THAT ISSUE REGARDING DISALLOWANCE OF PROPORTIONATE INTER EST IS COVERED IN FAVOUR OF APPELLANT BY DECISION OF HON'B LE AHMEDABAD ITAT IN APPELLANT'S OWN CASE FOR A.Y. 200 8-09 (ITA NO. 1531/AHD/2011) WHEREIN HON'BLE ITAT VIDE I TS ORDER DATED 6TH NOVEMBER, 2015 HAS HELD AS UNDER: '5. THE CIT(A) DELETES THIS BAD DEBTS DISALLOWANCE AFTER QUOTING CASE LAW OF TRF LTD. VS. CIT, 323 ITR 397 ( SC) TO THE FACT THAT IT IS NOT NECESSARY TO PROVE THE SAME TO HAVE ACTUALLY BECOME BAD AS PER THE RELEVANT LAW AMENDED FROM 01. 04.1989. THE CIT(A) COMES TO LATTER ASPECT (SUPRA). THE ASSE SSEE SUBMITTED IN THE LOWER APPELLATE PROCEEDINGS THAT I T HAD ALREADY CREDITED ITS BROKERAGE INCOME IN PROFIT AND LOSS ACCOUNT THEREBY OFFERING IT FOR TAXATION. IT CLARIF IED THAT SALE/PURCHASE PRICE OF SHARES HAD BEEN CREDITED IN THE RESPECTIVE ACCOUNTS. THE CIT(A) FOLLOWS SPECIAL BEN CH DECISION OF THE TRIBUNAL (2010) 5 ITR (TRIB) 1 (BOM.) DCIT V S. SHREYAS S. MORAKHIA AS UPHELD IN (2012) 342 ITR 285 (BOM.) CIT VS. SHREYAS S. MORAKHIA THAT VALUE OF THE SHARE TRANSAC TED BY A BROKER-ASSESSEE ON BEHALF OF THE CONCERNED CLIENT I S VERY MUCH ALLOWABLE AS BAD DEBTS. THE REVENUE FAILS TO REBUT THIS LEGAL POSITION. WE REJECT THIS THIRD SUBSTANTIVE GROUND A CCORDINGLY.' FOLLOWING THE ABOVE DECISION OF AHMEDABAD ITAT IN APPELLANT'S OWN CASE, DISALLOWANCE OF RS. 1,18,89,6 28 IS DELETED. THIS GROUND OF APPEAL IS ALLOWED. 56. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT -A THE REVENUE IS IN APPEAL BEFORE US. 57. BOTH THE LEARNED DR AND THE AR BEFORE US VEHEME NTLY SUPPORTED THE ORDER OF THE RESPECTIVE AUTHORITIES BELOW TO TH E EXTENT FAVOURABLE TO THEM. 58. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE O UTSET WE NOTE THAT THE TRIBUNAL IN THE OWN CASE OF THE ASSESSEE IN ITA NO. 1531/AHD/2011 FOR THE ASSESSMENT YEAR 2008-09 VIDE ORDER DATED 6TH NOVEMBER 2015, INVOLVING IDENTICAL ISSUE HAS DE CIDED THE MATTER ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 13 - IN FAVOR OF THE ASSESSEE. THE RELEVANT EXTRACT OF T HE ORDER IS REPRODUCED AS UNDER: THE REVENUE'S THIRD SUBSTANTIVE GROUND ASSAILS COR RECTNESS OF THE CIT(A) ACTION IN DELETING BAD DEBT DISALLOWANCE OF RS.27,35,991/-COMPRISING OF DEBIT BALANCE WRITTEN O FF OF RS.25,60,148/- AND BAD DEBT OF RS.1,75,843/-. THESE ENTRIES ARE MAINLY IN THE NATURE OF VATAV KASAR. SOME OF THEM A RE LESS THAN OF RS.10,000/- EVEN. THE ASSESSING OFFICER OBSERVED THAT THERE WAS NO MATERIAL ON RECORD TO PROVE THE SAME TO HAVE BEEN ACTUALLY BECOME BAD. AND ALSO THAT THE ASSESSEE HAD OFFERED ONLY BROKERAGE SUMS AS ITS INCOME U/S 36(2) OF THE ACT IN PROFIT AND LOSS ACCOUNT. HE ACCORDINGLY MADE THE IMPUGNED DISALLOWANCE OF THIS BAD DEBTS CLAIM. 59. THE LEARNED DR AT THE TIME OF HEARING HAS NOT B ROUGHT ANYTHING ON RECORD CONTRARY TO THE FINDING OF THE ITAT AS DI SCUSSED ABOVE SUGGESTING THAT THERE WAS ANY CHANGE IN THE FACTS A ND CIRCUMSTANCES OR UNDER THE PROVISIONS OF LAW. HENCE, THERE BEING NO CHANGE IN THE FACTS AND CIRCUMSTANCES VIZ A VIZ UNDER THE PROVISI ONS OF LAW, WE CONFIRM THE ORDER OF THE LD. CIT-A IN VIEW OF THE O RDER OF THIS TRIBUNAL IN THE OWN CASE OF THE ASSESSEE (SUPRA). A CCORDINGLY, WE DIRECT THE AO TO DELETE THE ADDITION MADE BY HIM. H ENCE, THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 11. IN ITA NO. 2021/AHD/2017 THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1.1 IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E APPELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN SUSTA INING THE ADDITION MADE BY THE LEARNED A.O BY TREATING A NORMAL BUSINE SS LOSS [SAUDAFER LOSS] OF RS. 13,79,652/- AS SPECULATION L OSS. 1.2 WITHOUT PREJUDICE TO THE FOREGOING, IN LAW AND THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN TREATING LOSS OF RS. 5,62,583/- ON FUTURES AND OPTIONS [F&O]TRANSACTIONS AND RS. 32,817/- ON CURRE NCY DERIVATIVES SEGMENT UNDERTAKEN IN RECOGNIZED STOCK EXCHANGES AS A PART OF THE SPECULATION LOSS. THE AFORESAID AMOUNTS WERE INCLUDED IN THE TOTAL AMOUNT OF LOSS OF RS. 13,79,652, NATURE O F WHICH ARE EXPRESSLY EXCLUDED FROM THE DEFINITION OF SPECULAT IVE TRANSACTION VIDE SUB CLAUSE (V) OF CLAUSE (5) OF SECTION 43 OF THE INCOME TAX ACT, 1961 HENCE THE IMPUGNED DISALLOWANCE COULD HAVE BEE N ONLY FOR RS. 784,252 WHICH WAS RIGHTLY CONSIDERED IN THE SUMMARY OF THE DISALLOWANCES IN PARA 10 OF THE ASSESSMENT ORDER BU T OMITTED IN PARA 6.3 OF THE SAID ORDER. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN NOT O RDERING FOR THE ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 14 - DELETION OF THE LEVY OF INTEREST U/S. 234B AND 234C CHALLENGED BY THE APPELLANT VIDE GROUND NO. 9 OF ITS APPEAL, INTER AL IA, ON THE GROUND THAT THE LEVY UNDER THAT PROVISION WAS NOT AT ALL A TTRACTED IF CONSIDERATION WAS GIVEN TO ALL THE PREPAID TAXES. 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN DISMI SSING GROUND NO. 10 OF THE APPELLANTS APPEAL BEFORE HIM CHALLENGING THE INITIATION OF PENALTY PROCEEDINGS U/S. 271(1)(C). HE OUGHT TO HAV E APPRECIATED, INTER ALIA, THAT IN THE PECULIAR FACTS AND CIRCUMST ANCES OF THE APPELLANTS CASE, INITIATION OF PENALTY PROCEEDINGS FOR CONCEALMENT OF INCOME WAS NOT AT ALL WARRANTED AND THAT, THEREF ORE, HE OUGHT TO HAVE ORDERED FOR THE CANCELLATION OF THOSE PROCEEDI NGS, THEREBY SAVING THE APPELLANT AS WELL AS THE DEPARTMENT FROM HAVING TO UNDERGO AVOIDABLE LITIGATION. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEF ORE OR DURING THE COURSE OF HEARING OF THE APPEAL. 12. THE LD. AO HAS DISCUSSED ISSUE IN PARAGRAPH 6 O N PAGES 12 TO 23 AND CIT(A) HAS DISCUSSED PARA 14TO 18 ON PAGE S 11TO 17 AND IDENTICAL ISSUE IS COVERED IN FAVOUR OF ASSESSEE IN ITS OWN CASE VIDE ITAT ORDER FOR A.Y. 2010-11 BEARING ITA NO. 41 3/A/2016 WITH THE FOLLOWING OBSERVATION: 60. THE NEXT ISSUE RAISED BY THE REVENUE IS THAT T HE LEARNED CIT (A) ERRED IN DELETING THE ADDITION MADE BY THE AO FOR RS.17,02,0 13/- ON ACCOUNT OF SAUDAFER LOSS. 61. THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS SUBMITTED THAT IT HAS MADE CERTAIN MISTAKES WHILE CARRYING OUT TRANSACTIONS OF PURCHASES AND SALES OF SECURITIES ON BEHALF OF THE CLIENTS WHICH HAS RESUL TED LOSS OF RS. 38,40,074/- ONLY. AS PER THE ASSESSEE SUCH LOSS SHOULD BE ALLOWED AS DED UCTION UNDER SECTION 28 (1) OF THE ACT AS IT DID NOT OCCUR IN ITS OWN ACCOUNT AND THE SAME SHOULD NOT BE TREATED AS SPECULATIVE LOSS UNDER EXPLANATION TO SECTION 73 OF THE ACT. 62. THE ASSESSEE FURTHER CONTENDED THAT HAD SUCH LO SS BEEN DEBITED IN THE ACCOUNT OF THE CLIENTS, BUT SUCH CLIENTS WOULD NOT HAVE PAI D FOR SUCH LOSSES AS THE LOSS WAS INCURRED DUE TO THE MISTAKE OF THE ASSESSEE. IN SUC H A SITUATION, THE LOSS WAS ALLOWABLE AS DEDUCTION EITHER UNDER SECTION 36(1) A S BAD DEBTS OR AS A BUSINESS LOSS UNDER SECTION 28(1) OF THE ACT. 63. HOWEVER, THE AO DISAGREED WITH THE CONTENTION O F THE ASSESSEE BY OBSERVING THAT THE ASSESSEE HAS NOT FURNISHED THE DETAILS OF THE MISTAKE COMMITTED BY IT, SUCH AS CLIENTS IN WHOSE ACCOUNTS THE TRANSACTION WAS EN TERED, NON-DELIVERY OF THE SHARES TO THE EXCHANGE AND INCORRECT EXECUTION OF ORDERS. THE AO ALSO OBSERVED THAT THERE WAS DISALLOWANCE MADE BY HIS PREDECESSOR IN THE OWN CASE OF THE ASSESSEE FOR THE ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 15 - ASSESSMENT YEAR 2006-07 TREATING SUCH LOSS AS SPECU LATIVE IN NATURE. ACCORDINGLY, THE AO ADDED THE SAME TO THE TOTAL INCOME OF THE AS SESSEE AND ALLOWED THE SAME TO BE CARRIED FORWARD. 64. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE L EARNED CIT (A). 65. THE ASSESSEE BEFORE THE LEARNED CIT (A) SUBMITT ED THAT THE IMPUGNED LOSS OF RS. 38,40,074/- IS INCLUSIVE OF THE LOSS OF RS.17,0 2,013/- WHICH WAS INCURRED OUT OF FUTURE AND OPTION SEGMENT CARRIED OUT THROUGH THE R ECOGNIZED STOCK EXCHANGE. THEREFORE SUCH LOSS OF RS. 17,02,013/- CANNOT BE TR EATED AS SPECULATIVE TRANSACTION AS PER CLAUSE (D) OF SUB-SECTION 5 TO SECTION 43 OF THE ACT. THEREFORE, TO THE EXTENT OF RS.17,02,013/- SUCH LOSS CANNOT BE TREATED AS SP ECULATIVE IN NATURE. 66. THE ASSESSEE ALSO CONTENDED THAT IT HAS DECLARE D OF GROSS BROKERAGE INCOME OF RS. 60,34,33,815/- ONLY AND THE AMOUNT OF IMPUGNED LOSS DEBITED STANDS AT RS. 38,40,074/- WHICH IS LESS THAN 0.6% OF THE TOTAL TU RNOVER. THEREFORE, THERE IS NO JUSTIFICATION ON THE PART OF THE AO TO DISBELIEVE I TS (ASSESSEE) VERSION. 67. HOWEVER, THE LEARNED CIT (A) FOUND THAT THE ASS ESSEE HAS NOT FURNISHED NECESSARY DETAILS ABOUT THE PARTIES ON WHOSE CASE T HE MISTAKE WAS COMMITTED BY IT. THUS, IN THE ABSENCE OF SUCH INFORMATION, IT HAS TO BE PRESUMED THAT THE IMPUGNED LOSS WAS INCURRED ON ASSESSEES ACCOUNT. 68. NEVERTHELESS, THE LEARNED CIT (A) DELETED THE A DDITION MADE BY THE AO FOR THE ASSESSMENT YEAR 2006-07 FOR THE REASON THAT THE ASS ESSEE HAS FURNISHED THE NECESSARY EVIDENCE TO JUSTIFY THAT THE LOSS WAS NOT ON ITS ACCOUNT. RATHER SUCH LOSS WAS INCURRED BY THE ASSESSEE ON BEHALF OF ITS CLIEN T. BUT IN THE CASE ON HAND THE ASSESSEE HAS NOT FURNISHED THE NECESSARY DETAILS. T HUS, THE LEARNED CIT (A) IN THE ABSENCE OF SUFFICIENT DOCUMENTARY EVIDENCE CONCLUDE D THAT SUCH LOSS RELATES TO THE ASSESSEES ACCOUNT. 69. HOWEVER, THE LEARNED CIT (A) HELD THAT THE LOSS TO THE EXTENT OF RS. 17,02,013/- RELATES TO THE FUTURE AND OPTION SEGMENT WHICH WAS CARRIED OUT THROUGH THE RECOGNIZED STOCK EXCHANGE. THEREFORE, SUCH LOSS OF RS. 17,02,013/- CANNOT BE TREATED AS SPECULATIVE TRANSACTION AS PER CLAUSE (D ) OF SUB SECTION 5 TO SECTION 43 THE ACT AND UNDER THE EXPLANATION TO SECTION 73 OF THE ACT. ACCORDINGLY, THE LEARNED CIT (A) DELETED THE ADDITION MADE BY THE AO FOR SUCH LOSS OF RS. 17,02,013.00. THUS, THE LEARNED CIT (A) ALLOWED THE GROUND OF APPEAL OF THE ASSESSEE IN PART. 70. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) BOTH THE REVENUE AND THE ASSESSEE ARE IN APPEAL BEFORE US. THE REVENUE IS IN APPEAL AGAINST THE DELETION OF THE ADDITION MADE BY THE AO FOR RS.17,02,013/- TREA TING SUCH LOSS RELATING TO FUTURE OPTION SEGMENT WHICH WAS CARRIED OUT THROUGH THE RE COGNIZED STOCK EXCHANGE WHEREAS THE ASSESSEE IS IN APPEAL AGAINST THE CONFI RMATION OF THE ADDITION OF RS. 21,38,061/- WHICH WAS TREATED BY THE LEARNED CIT (A ) AS SPECULATIVE IN NATURE IN PURSUANCE TO THE EXPLANATION TO SECTION 73 OF THE A CT. THE GROUND NO. 4 OF APPEAL FILED BY THE ASSESSEE IN ITA NO. 268/AHD/2016 READS AS UNDER: ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 16 - 4. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E APPELLANTS CASE, THE LEARNED CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE LD. AOS ACTION OF TREATING WHAT WAS NORMAL BUSINESS LOS [SAUDAFER LOS S] AS SPECULATION LOSS TO THE EXTENT OF RS. 21,38,061 [OUT OF RS. 38,40,07 4 SO TREATED BY THE LD. A.O.]. 71. THE LEARNED DR BEFORE US SUBMITTED THAT THE LOS S CLAIMED BY THE ASSESSEE FOR RS. 17,02,013/- IS DEEMED TO BE SPECULATIVE LOSS UN DER EXPLANATION TO SECTION 73 OF THE ACT. 72. ON THE OTHER HAND, THE LEARNED AR BEFORE US REI TERATED THE CONTENTION OF THE ASSESSEE AS RAISED BEFORE THE AUTHORITIES BELOW. 73. BOTH THE LEARNED DR AND THE AR BEFORE US VEHEME NTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW TO THE EXTENT FAVOURABLE TO T HEM. 74. WE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE FIRST ISSUE THAT ARISES FO R OUR CONSIDERATION IS WHETHER THE IMPUGNED LOSS INCURRED BY THE ASSESSEE RELATES TO T HE SALE AND PURCHASE ACTIVITIES CARRIED OUT BY THE ASSESSEE FOR ITSELF OR IT RELATE S TO THE OTHER CLIENTS OF THE ASSESSEE. IT IS A QUESTION OF FACT WHICH CAN VERIFIED BASED O N THE DOCUMENTARY EVIDENCE. INDEED, THE ASSESSEE HAS NOT FURNISHED THE SUFFICIE NT DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CONTENTION. BUT LOOKING AT THE AMOUN T OF IMPUGNED LOSS IN COMPARISON TO THE VOLUME OF THE BROKERAGE BUSINESS CARRIED OUT BY THE ASSESSEE, WE FIND THAT SUCH LOSS IS OF NEGLIGIBLE VALUE. FURTHER MORE, THE TAX AUDIT REPORT IN FORM 3CD SUGGESTS THAT THE ASSESSEE IS ENGAGED IN THE AC TIVITY OF STOCKBROKING ONLY AND NOT IN THE ACTIVITY OF SALE PURCHASE OF SECURITIES. THE COPY OF FORM 3 CD IS PLACED ON PAGES 133 TO 165 OF THE PAPER BOOK. SIMILARLY, T HE AO HAS ALSO RECORDED IN HIS ORDER THE NATURE OF BUSINESS OF THE ASSESSEE I.E. S TOCKBROKING. EVEN IN THE EARLIER ASSESSMENT YEAR 2006-07, THE IMPUGNED LOSS WAS ALSO TREATED AS SPECULATIVE IN NATURE BUT THE LEARNED CIT (A) DELETED THE SAME AS THE ASSESSEE WAS ABLE TO JUSTIFY HIS CONTENTION BASED ON THE DOCUMENTARY EVIDENCE TH AT SUCH LOSS RELATES TO ITS CLIENTS. THIS FINDING OF THE LD. CIT-A, IF ANALYZED IN AGGREGATION OF OTHER FACTS I.E. FORM 3CD REPORT, PROFIT & LOSS ACCOUNT, NATURE OF T HE BUSINESS AS RECORDED BY THE AO, THE FACT EMERGES THAT THAT THE ASSESSEE IS NOT CARRYING OUT SHARE TRADING ACTIVITIES IN ITS ACCOUNTS. 75. ON PERUSAL OF THE FINANCIAL STATEMENTS PLACED O N PAGES 59 TO 132 OF THE PAPER BOOK, IT WAS OBSERVED THAT THERE WAS NO TRANSACTION SHOWN BY THE ASSESSEE AS PURCHASE AND SALE OF THE SHARES. IN VIEW OF THE ABO VE AND AFTER CONSIDERING THE DETAILS AS DISCUSSED ABOVE WE HOLD THAT THE IMPUGNE D LOSS INCURRED BY THE ASSESSEE DOES NOT PERTAIN TO ITS ACCOUNTS RATHER IT RELATES TO THE ACCOUNTS OF ITS CLIENTS. ACCORDINGLY, WE CONCLUDE THAT THE PROVISIONS OF EXP LANATION TO SECTION 73 OF THE ACT CANNOT BE APPLIED TO THE CASE ON HAND. IN HOLDING S O WE FIND SUPPORT AND GUIDANCE FROM THE ORDER OF THIS TRIBUNAL IN THE CASE OF PARK ER SECURITIES LTD VERSUS DCIT REPORTED IN 102 TTJ 235 WHEREIN IT WAS HELD AS UNDE R: EXPLANATION TO SECTION 73 PROVIDES THAT WHERE ANY PART OF THE BUSINESS OF A COMPANY (OTHER THAN CERTAIN SPECIFIED COMPANIES A S MENTIONED IN THE EXPLANATION) CONSISTS IN THE PURCHASE AND SALE OF S HARES OF OTHER ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 17 - COMPANIES, SUCH COMPANY SHALL, FOR THE PURPOSES OF THIS SECTION, BE DEEMED TO BE CARRYING ON A SPECULATION BUSINESS TO THE EXT ENT TO WHICH THE BUSINESS CONSISTS OF THE PURCHASE AND SALE OF SUCH SHARES. I T IS CLEAR FROM THE SAID PROVISION THAT SALE AND PURCHASE OF SHARES OF OTHER COMPANIES, WITHIN THE AMBIT OF THE EXPLANATION, MUST BE CARRIED OUT AS AN ACTIVITY OF BUSINESS. THE TERM BUSINESS HAS BEEN DEFINED IN SECTION 2(13). NOTING THE DEFINITION OF BUSINESS FROM THE VIEW POINT OF EXPLANATION TO SE CTION 73, IT HAS BEEN OBSERVED BY THE KARNATAKA HIGH COURT IN THE CASE OF MYSORE ROLLING MILLS (P.) LTD. V. CIT [1992] 195 ITR 404/ 63 TAXMAN 416 THAT ANY KIND OF VENTURE WOULD NOT FALL WITHIN THIS INCLUSIVE DEFINI TION. THE VENTURE OR THE ADVENTURE WILL HAVE TO BE IN THE NATURE OF TRADE, C OMMERCE OR MANUFACTURE. BASICALLY, THE CONCEPT OF BUSINESS INVOLVES A FREQU ENT ACTIVITY OF A PARTICULAR NATURE. THEREFORE, TO FIND OUT THAT THE ASSESSEE CA RRIED ON PURCHASE AND SALE OF SHARES OF OTHER COMPANIES AS ITS BUSINESS IN A G IVEN CASE, THE FACTS OF THAT CASE WILL HAVE TO BE EXAMINED AND THE TESTS WHICH C OULD DETERMINE SUCH SITUATION ARE - (I) NATURE OF ASSESSEES BUSINESS I N GENERAL, (II) THE PURPOSE BEHIND THE PARTICULAR TRANSACTION, AND (III) THE EF FECT OF THE TRANSACTION ETC. IN THE INSTANT CASE, THE NATURE OF THE ASSESSEES B USINESS IN GENERAL WAS TO EARN INCOME AS A BROKER OF STOCK EXCHANGE AND THE P URPOSE BEHIND THE TRANSACTIONS IN REGARD TO WHICH THE ASSESSEE HAD IN CURRED LOSS WAS THE PURCHASE FOR AND ON BEHALF OF CERTAIN CLIENTS TO EA RN BROKERAGE INCOME THEREFROM. IT WAS ONLY AN EVENTUALITY THAT SOME OF THE CLIENTS DISOWNED ONLY PART OF THE TRANSACTIONS WHICH UNDER COMPULSION WER E TO BE TAKEN BY THE ASSESSEE AS ITS OWN. [PARA 28] 75.1 IN VIEW OF THE ABOVE, ONCE IT HAS BEEN HELD TH AT LOSS DOES NOT RELATE TO THE ACTIVITY OF SALE/PURCHASE OF SHARES BY THE ASSESSEE FOR ITSELF, THEN THE PROVISIONS OF EXPLANATION TO SECTION 73 OF THE ACT CANNOT BE APPL IED. HENCE, THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED WHEREAS THE GROUND OF A PPEAL OF THE ASSESSEE IS ALLOWED. THUS, IN PARITY WITH ABOVE SAID ITAT ORDER WE ALLO W THE GROUND OF APPEAL OF THE ASSESSEE. 13. IN THE COMBINED RESULT, APPEAL FILED BY THE AS SESSEE IS ALLOWED AND APPEAL FILED BY THE REVENUE IS DISMISSE D. SD/- SD/- (WASEEM AHMED) (MAHA VIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 27/10/2021 TANMAY TRUE COPY TRUE COPY THIS ORDER PRONOUNCED IN OPEN COURT ON 27/10/2021 ITA NO.2021/AHD/2017 & 1939/A/17 [M/S. EDELWEISS BROKING LTD. VS. DCIT] A.Y. 2013-14 - 18 - !' #' / COPY OF ORDER FORWARDED TO:- 1. / REVENUE, 2. $ / ASSESSEE, 3. ) *+ , / CONCERNED CIT, 4. ,- / CIT (A), 5. 012 33*+, *+#, 56$)$ / DR, ITAT, AHMEDABAD, 6. 289 : / GUARD FILE. BY ORDER / $% , ;/5 *+#, 56$)$ < 1.DATE OF DICTATION ON 21.10.2021 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 25.10.2021 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. .10.2021 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT .10.2021 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 27.10.2021 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.10.2021 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER