D.C.I.T Cent. Cir.-7(3), MUMBAI V. GOL OFFISHORE LTD, MUMBAI

ITA 2033/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9719 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 30-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MEENA
• Keywords: Depreciation; Search and seizure; Reassessment proceedings
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD , JUDICIAL MEMBER ITA NOS. 2031, 2032 & 2033/MUM/2016 : A.YS : 2008 - 09, 2007 - 08 & 2006 - 07 DCIT, CENTRAL CIRCLE - 7(3), (ERSTWHILE DCIT CENTRAL CIRCLE - 42) MUMBAI (APPELLANT) VS. M/S. GO L OFFSHORE LTD. 81, ENERGY HOUSE, D.N. ROAD, FORT, MUMBAI 400 001. PAN : AA CCG4380N (RESPONDENT) APPELLANT BY : SHRI R.P. MEENA (CIT - DR) RESPONDENT BY : NONE DATE OF HEARING : 0 4 /07/2017 DATE OF PRONOUNCEMENT : 31 /07/2017 O R D E R PER G.S. PANNU , AM : THE CAPTIONED THREE APPEALS PREFERRED BY THE REVENUE RELATE TO THE SAME ASSESSEE AND INVOLVE A COMMON ISSUE, THEREFORE, THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. AT THE TIME OF HEARING, IT WAS NOTICED THAT NONE APPEARED ON BEHALF OF THE RESPONDENT - ASSESSEE INSPITE OF SERVICE OF NOTICE BY RPAD. ON THE OTHER HAND, THE LD. CIT - DR APPEARED ON BEHALF OF THE REVENUE. 2 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 3. ACCORDINGLY, IN VIEW OF RULE 25 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, THE APPEAL S OF THE REVENUE ARE BEING DISPOSED OFF EX - PARTE THE RESPONDENT - ASSESSEE AFTER HEARING THE APPELLANT - REVENUE ON MERITS . 4. THE CAPTIONED APPEAL S ARE FILED BY THE REVENUE AGAINST THE COMMON ORDER OF CIT(A) - 49 DATED 01.01.2016 WHICH IN TURN HA S ARISEN FROM THE SEPARATE ORDER S PASSED BY THE ASSESSING OFFICER ALL DATED 29.3.2014 U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . 5. BEFORE PROCEEDING FURTHER, WE MAY REPRODUCE THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN THE THREE ASSESSMENT YEARS, WHICH READ AS UNDER : - A.Y 200 6 - 0 7 : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 385,52,286/ - FOR A.Y.2006 - 07 ON ACCOUNT OF APPORTIONMENT OF EXPENSES BETWEEN TONNAGE AND NON TONNAGE ACTIVITIES RELYING ON THE DECISION OF TH E BOMBAY HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. WITHOUT APPRECIATING THE FACTS THAT THE ABOVE SAID DECISION OF THE HIGH COURT HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND SLP HAS BEEN FILED IN THE HIGH COURT AND THE SAME IS PENDING? TH E APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 A.Y 200 7 - 0 8 : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 273,99,267/ - FOR A.Y.2007 - 08 ON ACCOUNT OF APPORTIONMENT OF EXPENSES RELYING ON THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF ALL CARG O GLOBAL LOGISTICS LTD. WITHOUT APPRECIATING THE FACTS THAT THE ABOVE SAID DECISION OF THE HIGH COURT HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND SLP HAS BEEN FILED IN THE HIGH COURT AND THE SAME IS PENDING? THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) O N THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. A.Y 2008 - 09 : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 989,74,0341/ FOR A.Y 2008 - 09 ON ACCOUN T OF APPORTIONMENT OF EXPENSES RELYING ON THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. WITHOUT APPRECIATING THE FACTS THAT THE ABOVE SAID DECISION OF THE HIGH COURT HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND SLP HAS BEEN FILED IN THE HIGH COURT AND THE SAME IS PENDING? THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 6. AS A PERUSAL OF THE GROUNDS OF APPEAL IN THE THREE ASSESSMENT YEARS REVEAL, THE ISSUE RAISED IN ALL THE APPEALS IS COMMON. IN ORDER TO APPRECIATE THE CONTROVERSY, WE MAY REFER TO THE FOLLOWING FACT - SITUATION. THE RESPONDENT - ASSESSEE IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND IS, INTER - A LIA, ENGAGED IN THE BUSINESS OF OFF - SHORE SHIPPING AND ALLIED ACTIVITIES INCLUDING CHARTER OF RIGS, ETC. A SEARCH AND SEIZURE ACTION U/S 132(1) OF THE ACT WAS CONDUCTED IN BHARTI SHIPYARD GROUP OF CASES AND ASSESSEE BEING AN 4 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 ENTITY CONNECTED TO THE AFORES AID GROUP, WAS COVERED BY THE SEARCH AND SEIZURE ACTION ON 24.11.2011 . SUB SEQUENTLY, NOTICE U/S 153A(1)(A) OF THE ACT WAS ISSUED AND SERVED ON 7.11.2012 REQUIRING IT TO FURNISH RETURNS OF INCOME FOR THE VARIOUS ASSESSMENT YEARS INCLUDING THE THREE CAPTIONED ASSESSMENT YEARS BEFORE US. IN RESPONSE, ASSESSEE FURNISHED A RETURN OF INCOME ON 4.3.2013 DECLARING A TOTAL INCOME OF RS.11,22,72,762/ - , WHICH WAS THE SAME AS DECLARED ORIGINALLY IN THE RETURN OF INCOME FILED U/S 139(1) OF THE ACT ON 30.11.2006. NOTABLY, WITH RESPECT TO THE ORIGINAL RETURN OF INCOME, AN ASSESSMENT U/S 143(3 ) OF THE ACT WAS COMPLETED ON 24.12.2008 ACCEPTING THE TOTAL INCOME DECLARED BY THE ASSESSEE AT RS.11,22,72,762/ - . AS A CONSEQUENCE OF THE RETURN FILED ON 4.3.2013, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 153A R.W.S. 143(3), WHEREIN THE TOTAL I NCOME HAS BEEN DETERMINED AT RS.15,16,98,800/ - . THE POINT OF DISCUSSION IN THE APPEAL OF THE REVENUE RELATES TO AN ADDITION OF RS.3,85,52,286/ - WITH RESPECT TO APPORTIONMENT OF EXPENSES AND, THEREFORE, OUR FURTHER DISCUSSION IS CONFINED TO THE SAID ADDITI ON. IN THIS CONTEXT, THE RELEVANT FACTS ARE THAT THE RESPONDENT - ASSESSEE HAS TWO DIVISIONS, NAMELY MARINE LOGISTICS DEPARTMENT (IN SHORT REFERRED TO AS TONNAGE BUSINESS), INCOME FROM WHICH IS ELIGIBLE FOR THE BENEFICIAL PROVISIONS OF TONNAGE TAX REGIME CONTAINED IN CHAPTER XII - G OF THE ACT . THE SECOND DIVISION IS THE OIL & GAS DEPARTMENT (IN SHORT REFERRED TO AS NON - TONNAGE BUSINESS), INCOME FROM WHICH IS TAXABLE UNDER THE REGULAR PROVISIONS OF THE ACT. THE I NCOME S & E XPENDITURE S WHICH ARE DIRECTLY R ELATED TO EITHER THE TONNAGE OR NON - TONNAGE BUSINESSES ARE ACCOUNTED FOR SEPARATELY. SO HOWEVER, THE COMMON EXPENSES WE RE ALLOCATED BY THE ASSESSEE IN THE RATIO OF 67 (TONNAGE) : 33 (NON - TONNAGE). IN THE IMPUGNED ASSESSMENT 5 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 FINALISED U/S 153A R.W.S. 143( 3) OF THE ACT, THE ASSESSING OFFICER DISAGREED WITH THE ALLOCATION OF COMMON EXPENSES IN THE RATIO OF 67 : 33 AND INSTEAD, HE APPORTIONED THE SAME ON THE BASIS OF THE ACTUAL REVENUES OF THE TWO DIVISIONS IN THE RATIO OF 78 : 22. AS A CONSEQUENCE, HE MADE AN ADDITION OF RS.3,85,52,286/ - TO THE RETURNED INCOME. 7. SIMILARLY, FOR ASSESSMENT YEAR 2007 - 08, NOTICE U/S 153A(1)(A) OF THE ACT WAS ISSUED AND SERVED ON 7.11.2012. IN RESPONSE, ASSESSEE FURNISHED A RETURN OF INCOME ON 19.2.2013 DECLARING A TOTAL INCO ME OF RS. 71,03,15,222 / - , WHICH WAS THE SAME AS DECLARED ORIGINALLY IN THE RETURN OF INCOME FILED U/S 139(1) OF THE ACT ON 27.10 .200 7 . NOTABLY, WITH RESPECT TO THE ORIGINAL RETURN OF INCOME, AN ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 30.11.2009 D ETERMINING THE TOTAL INCOME AT RS. 73,58,39,810 / - . AS A CONSEQUENCE OF THE RETURN FILED ON 19.2. 2013 , THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 153A R.W.S. 143(3), WHEREIN THE TOTAL INCOME HAS BEEN DETERMINED AT RS. 74,05,79,450 / - . IN THE IMPUGNE D ASSESSMENT FINALISED U/S 153A R.W.S. 143(3) OF THE ACT, ONE OF THE ADDITION MADE WAS ON ACCOUNT OF ALLOCATION OF EXPENSES BETWEEN TONNAGE AND NON - TONNAGE BUSINESSES. T HE ASSESSING OFFICER DISAGREED WITH THE ALLOCATION OF COMMON EXPENSES IN THE RATIO OF 67 : 33 AND INSTEAD, HE APPORTIONED THE SAME ON THE BASIS OF THE ACTUA L REVENUES OF THE TWO DIVISIONS, AND MADE AN ADDITION OF RS.2,73,99,267/ - TO THE RETURNED INCOME. 8. SIMILARLY, FOR ASSESSMENT YEAR 2008 - 09, NOTICE U/S 153A(1)(A) OF THE ACT WAS ISSUED AND SERVED ON 7.11.2012. IN RESPONSE, ASSESSEE FURNISHED A RETURN OF INCOME ON 4.3.2013 DECLARING A TOTAL INCOME OF 6 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 RS. 52,37,09,187 / - , WHICH WAS THE SAME AS DECLARED ORIGINALLY IN THE RETURN OF INCOME FILED U/S 139(1) OF THE ACT ON 2 9 . 9 .200 8 . NOTABLY, WITH RESPECT TO THE ORIGINAL RETURN OF INCOME, AN ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON 15.12.2010 DETERMINING THE TOTAL INCOME AT RS. 58,72,74,460 / - . AS A CONSEQUENCE OF THE RETURN FILED ON 4 . 3 .2013 , THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 153A R.W.S. 143(3), WHEREIN THE TOTAL INCOME HAS BEEN DETERMINED AT RS. 62,20,81,144 / - . IN THE IMPUGNED ASSESSMENT FINALISED U/S 153A R.W.S. 143(3) OF THE ACT, ONE OF THE ADDITION MADE WAS ON ACCOUNT OF ALLOCATION OF EXPENSES BETWEEN TO NNAGE AND NON - TONNAGE BUSINESSES. T HE ASSESSING OFFICER DISAGREED WITH THE ALLOCATION OF COMMON EXPENSES IN THE RATIO OF 67 : 33 AND INSTEAD, HE APPORTIONED THE SAME ON THE BASIS OF THE ACTUA L REVENUES OF THE TWO DIVISIONS. AS A CONSEQUENCE, HE MADE AN A DDITION OF RS.9,89,74,034/ - TO THE RETURNED INCOME. 9. IN APPEAL BEFORE THE CIT(A), ASSESSEE CONTESTED THE SAID ADDITIONS ON THE BASIS OF THE PROPOSITION OF LAW LAID DOWN BY THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. , WHICH HAS BEEN LATER APPROVED BY THE HON'BLE HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD., 374 ITR 645 (BOM) . THE PLEA SET - UP BY THE ASSESSEE ON THIS BASIS WAS THAT ON THE DATE OF INITIATION OF SEARCH, I.E. 24.11.2011, THE ASSESSMENT FOR ANY OF THE THREE ASSESSMENT YEARS WAS NOT PENDING AND, THEREFORE, IN TERMS OF THE SECOND PROVISO TO SEC. 153A(1)(A) OF THE ACT THE ORIGINAL ASSESSMENTS DID NOT ABATE. THEREFORE, IT WAS CANVASSED , FOLLOWING THE RATIO OF THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD., (SUPRA) , THAT NO ADDITION CAN BE MADE IN THE IMPUGNED ASSESSMENTS ON ISSUES WHICH 7 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 HAVE BECOME FINAL IN THE ORIGINAL ASSESSMENTS IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. BEF ORE THE CIT(A), ASSESSEE MADE FACTUAL ASSERTIONS THAT THE IMPUGNED ADDITION WAS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH AND, THEREFORE, THE SAME WAS UNSUSTAINABLE. WE FIND THAT THE CIT(A) HAS ANALYSED THE FACT - SITUATION W ITH RESPECT TO THE ADDITION ON ACCOUNT OF APPORTIONMENT OF COMMON OPERATING EXPENSES FOR EACH OF THE THREE ASSESSMENT YEARS AND HAD COME TO CONCLUDE THAT THE ADDITIONS WERE UNJUSTIFIED IN VIEW OF THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF ALL CA RGO GLOBAL LOGISTICS LTD., (SUPRA). 10. BEFORE PROCEEDING FURTHER, WE ARE TEMPTED TO REPRODUCE HEREINAFTER THE RELEVANT OPERATIVE FINDING S OF THE CIT(A) FOR THE THREE ASSESSMENT YEARS , WHICH ARE AS UNDER : - (I) A.Y 2006 - 07 : I FIND THAT ASSESSMENT U/S.143(3) WAS COMPLETED ON 24.12.2008 AT TOTAL INCOME OF RS.11,22,72,760/ - I.E. SAME AS RETURNED INCOME. NOTICE U/S.148 WAS ISSUED ON 26.3.2010 AGAINST WHICH THE APPELLANT FILED LETTER DATED 23.7.2010 OBJECTING TO THE REOPENING AND THEREAFTER NO ORDER HAS BEEN PASSED TILL 31.12.2010 LEADING TO THE PRESUMPTION THAT THE REASSESSMENT PROCEEDINGS WERE DROPPED. THE SAID ASSESSMENT WAS REOPENED AFTER RECORDING REASONS THAT THE APPORTIONMENT OF EXPENSES ON THE RATE OF 67:33 WAS NOT CORRECT AND COMMON EXPENSES SHOULD HAVE BEEN APPORTIONED ON THE BASIS OF ACTUAL REVENUE IN THE RATIO OF 78:22. IN VIEW OF ABOVE, I FIND THAT NO ASSESSMENT WAS PENDING AS ON DATE OF SEARCH I.E. 24.11.2011 AND THEREFORE THE ASSESSMENT FOR AY.2006 - 07 DID NOT ABATE. IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT THE ADDITION OF RS.385,52,386/ - IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. THUS, IN VIEW, OF THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE 8 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 CASE OF CIT VS. CONTINENTAL WAREH OUSING CORPORATION (NHAVA SHEVA LTD) (374 ITR 645), THE ADDITION IS FOUND TO BE WITHOUT JUSTIFICATION. FURTHER EVEN ON MERITS OF THE CASE THIS ISSUE RELATING TO REALLOCATION OF COMMON ADMINISTRATIVE EXPENSES IS COVERED IN THE FAVOUR OF THE APPELLANT BY T HE ORDER DATED 30.9.2015 OF THE ITAT, MUMBAI BENCH 'G' MUMBAI FOR AY.2007 - 08 IN APPELLANT'S OWN CASE ( ITA NO.2191/MUM/2011) IN WHICH THE ISSUE HAS BEEN DECIDED BY MAKING FOLLOWING OBSERVATION 'THE CIT(A) DECIDED THE ISSUE AGAINST THE ASSESSEE ON THE G ROUND THAT THE AO IS NOT BOUND BY THE SYSTEM ADOPTED AND FOLLOWED BY THE ASSESSEE AND FURTHER OBSERVING THAT SECTION 115VJ ALSO EMPOWERS THE AO TO APPORTION ON REASONABLE BASIS WHICH IS IN THE PRESENT CASE IS ACTUAL REVENUE BASIS THEREBY SUSTAINING AN ADDI TION OF RS.2,43,58,093/ - . IN OUR OPINION, THE APPROACH OF THE AO AND CIT(A) IS NOT CORRECT ESPECIALLY WHEN THE SYSTEM OF ALLOCATION ADOPTED BY THE ASSESSEE IS ACCEPTED FOR THREE HEADS OF EXPENSES NAMELY TOTAL OPERATING EXPENSES, INTEREST AND FINANCE CHARGE S AND DEPRECIATION AND ONLY REJECTED APPORTIONMENT QUA ADMINISTRATIVE AND OTHER EXPENSES AND MORE SO WHEN THE REVENUE HAD ACCEPTED SYSTEM OF APPORTIONMENT OF COMMON OVERHEADS, FOLLOWED BY THE ASSESSEE IN THE EARLIER YEAR. IN VIEW OF OUR OBSERVATION AND THE DECISIONS CITED BY THE LD AR, WE ARE OF THE CONSIDERED VIEW THAT THE ORDER OF CIT(A) DESERVES TO BE REVERSED. IN VIEW OF THE ABOVE DISCUSSION, THE ADDITION ON ACCOUNT OF APPORTIONMENT OF EXPENSES BETWEEN TONNAGE AND NON TONNAGE ACTIVITIES OF RS.385,52,286/ - IS FOUND TO BE WITHOUT JUSTIFICATION AND IS DELETED. (II) A.Y 2007 - 08 I FIND THAT ASSESSMENT U/S.143(3) W AS COMPLETED ON 30.11.2009 IN WHICH ADDITION OF RS.243,58,093/ - WAS MADE AFTER REAPPORTIONMENT OF EXPENSES. THIS ADDITION WAS CONFIRMED BY THE FIRST APPELLATE AUTHORITY VIDE ORDER DATED 28.12.2010 AND THE MATTER WAS 9 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 PENDING IN APPEAL BEFORE THE ITAT WHEN T HE ASSESSMENT U/S.153A HAS BEEN FINALIZED. IN THE ASSESSMENT ORDER U/S.153A DATED 29.3.2014 THE AO HAS MADE ADDITION OF RS.273,99,267/ - ON THIS ISSUE AND THE DIFFERENCE IS ON ACCOUNT OF THE APPORTIONMENT OF COMMON OPERATING EXPENSES, INTEREST AND FINANCE C HARGES AND DEPRECIATION, IN ADDITION TO THE ADMINISTRATIVE AND OTHER EXPENSES CONSIDERED IN THE FIRST ASSESSMENT ORDER U/S.143(3). THE COMMON EXPENSES HAVE BEEN ALLOCATED TO NON TONNAGE ACTIVITY AT THE RATE OF 26.94% AS AGAINST 33% CONSIDERED BY THE APPELL ANT. SINCE THIS IS A CASE WHICH HAD NOT ABATED, FURTHER ADDITION ON THIS ISSUE COULD HAVE BEEN MADE ONLY IN LIGHT OF THE INCRIMINATING MATERIAL EMANATING FROM THE SEARCH AND NOT OTHERWISE. FROM THE ASSESSMENT ORDER, IT IS EVIDENT THAT NO SUCH INCRIMINATIN G MATERIAL WAS FOUND AS A RESULT OF THE SEARCH TO JUSTIFY THE ABOVE SAID INCREASE IN ADDITION. FURTHER, I FIND THAT THE ADDITION OF RS.243,58,093/ - MADE IN THE FIRST ASSESSMENT U/S.143(3) VIDE ORDER DATED 30.11.2009 HAS BEEN DELETED BY THE ORDER OF THE ITA T, MUMBAI 'G' BENCH, AS NOTED ABOVE IN PARA 10.1(I). IN VIEW ABOVE DISCUSSION, THE ENTIRE ADDITION OF RS.273,99,267/ - ON THIS ISSUE IS FOUND TO BE WITHOUT JUSTIFICATION AND IS DELETED. (III) A . Y.2008 - 09 I FIND THAT ASSESSMENT U/S.143(3) WAS COMPLETED ON 15.12.2010 IN WHICH ADDITION OF RS.671,11,494/ - WAS MADE AFTER REAPPORTIONMENT OF EXPENSES. THIS ADDITION WAS CONFIRMED BY THE FIRST APPELLATE AUTHORITY VIDE ORDER DATED 29.7.2011 AND THE MATTER WAS PENDING IN APPEAL BEFORE THE ITAT WHEN THE ASSESSMENT U/S.153A HAS BEEN FINALIZED. IN THE ASSESSMENT ORDER U/S.153A DATED 29.3.2014 THE AO HAS MADE ADDITION OF RS.989,74,034/ - ON THIS ISSUE AND THE DIFFERENCE IS ON ACCOUNT OF THE APPORTIONMENT OF COMMON OPERATING EXPENSES, INTEREST AND FINANCE CHARGES AND DEP RECIATION, IN ADDITION TO THE ADMINISTRATIVE AND OTHER EXPENSES CONSIDERED IN THE FIRST ASSESSMENT ORDER U/S.143(3). THE COMMON EXPENSES HAVE BEEN ALLOCATED TO NON TONNAGE ACTIVITY AT THE RATE OF 21.59% AS AGAINST 33% CONSIDERED BY THE APPELLANT. SINCE THI S IS A CASE WHICH HAD NOT ABATED, FURTHER ADDITION ON THIS ISSUE COULD HAVE BEEN MADE ONLY IN LIGHT OF THE INCRIMINATING MATERIAL EMANATING FROM THE SEARCH AND NOT 10 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 OTHERWISE. FROM THE ASSESSMENT ORDER, IT IS EVIDENT THAT NO SUCH INCRIMINATING MATERIAL WAS FOUND AS A RESULT OF THE SEARCH TO JUSTIFY THE ABOVE SAID INCREASE IN ADDITION. FURTHER, I FIND THAT THE ADDITION OF RS.671,11,494/ - MADE IN THE FIRST ASSESSMENT U/S. 143(3) VIDE ORDER DATED 30.11.2009 HAS BEEN DELETED BY THE ORDER OF THE ITAT, MUMBAI 'G' BENCH VIDE COMMON ORDER DATED 30.9.2015 FOR A.Y. 2006 - 07, 2007 - 08 & 2008 - 09. IN VIEW OF ABOVE DISCUSSION, THE ENTIRE ADDITION OF RS.989,74,034/ - ON THIS ISSUE IS FOUND TO BE WITHOUT JUSTIFICATION AND IS DELETED. 11. IN THE ABOVE BACKGROUND, REVENUE IS IN APPEAL BEFORE US ON THE ABOVESTATED GROUNDS OF APPEAL. AS THE GROUNDS OF APPEAL REVEAL, THE ONLY POINT RAISED BY THE REVENUE IS THAT THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD., (SUPRA) , WHICH HAS BEEN APP LIED BY THE CIT(A) TO DELETE THE ADDITION , HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND AN SLP HAS BEEN FILED IN THE HON'BLE SUPREME COURT, WHICH IS PENDING. NOTABLY, THE GROUNDS OF APPEAL ITSELF SUGGEST THAT THE REVENUE DOES NOT DISPUTE THE FACTUAL FINDIN G ARRIVED AT BY THE CIT(A) AS THE IMPUGNED ADDITION MADE IN THE THREE YEARS IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH. IN THE ABSENCE OF ANY CHALLENGE TO SUCH FACTUAL FINDINGS OF THE CIT(A), WE FIND THAT THE CIT(A) HAS M ADE NO MISTAKE IN APPLYING THE RATIO OF THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD., (SUPRA) FOR DELETING THE IMPUGNED ADDITION. AT THE TIME OF HEARING, THE EMPHASIS OF THE LD. DR WAS ONLY ON THE POINT THAT THE RATIO LAID DOWN IN THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD., (SUPRA) HAS NOT BECOME FINAL SINCE THE SLP FILED BY THE DEPARTMENT IS PENDING. HOWEVER, IN OUR CONSIDERED OPINION, THE POINT MADE OUT BY 11 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 THE DEPARTMENT DOES NOT DISTRACT FROM THE SUBSISTING BINDING NATURE OF THE RULING OF THE HON'BLE BOMBAY HIGH COURT AND, THEREFORE, WE FIND NO MERIT IN THE PLEA RAISED BY THE REVENUE. THUS, THE ORDER OF THE CIT(A) IS LIABLE TO BE AFFIRMED. WE HOLD SO. 12 . EVEN OTHERWISE, THE CIT(A) WHILE DELETING THE ADDITION ALSO REFERRED TO THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2007 - 08 IN ITA NO. 2191/MUM/2011 DATED 30.9.2015 WHEREIN THE SYSTEM OF ALLOCATION OF EXPE NSES AS MADE BY THE ASSESSEE HAS BEEN APPROVED. THIS ASPECT OF THE CONTROVERSY IS ALSO NOT CHALLENGED BY THE REVENUE INASMUCH AS THERE IS NO GROUND ON THIS ASPECT RAISED AT ALL BEFORE US. THEREFORE, ON THIS GROUND ALSO, THE APPEALS OF THE REVENUE ARE UNS USTAINABLE. 13. RESULTANTLY, THE APPEALS OF THE REVENUE ARE DISMISSED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 2017. SD/ - SD/ - (RAVISH SOOD) JUDICIAL MEMBER ( G.S. PANNU ) ACCOUNTANT MEMBER MUMBAI, DATE : 31 ST JULY, 2017 * SSL * 12 M/S. GOL OFFSHORE LTD. ITA NOS. 2031 TO 2033/MUM/2016 COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI