DISH TV INDIA LTD ( SUCCESSOR TO SITI CAVLE NETWORK LTD), MUMBAI V. ACIT RG 11(1), MUMBAI

ITA 2034/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54975 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 13-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 12-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income; Double taxation relief; Opportunity of being heard; Retrospective amendment; Bad and doubtful debts
• Section: 143(3); 37; 263; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR (AM) AND SHRI VIJAY PAL R AO (JM) ITA NOS.2033 & 2034 /M/2010 ASSESSMENT YEARS: 2006-07 & 2003-04 M/S DISH INDIA LTD., (SUCCESSOR TO SITI CABLE NETWORK LTD., ) CONTINENTAL BLDG., 135, DR. ANNIE BESANT ROAD, WORLI, MUMBAI 400 018. PAN: AAACA5478M ACIT, RANGE 11(1), AAYAKAR BHAVAN, MUMBAI 400 020. (APPELLANT) (RESPONDENT) ITA NOS. 1254 & 1255 /M/2010 ASSESSMENT YEARS: 2003-04 & 2006-07 ACIT, RANGE 11(1), ROOM NO.439, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 M/S SITI CABLE NETWORK LTD., CONTINENTAL BLDG., 135, DR. ANNIE BESANT ROAD, WORLI, MUMBAI 400 018. PAN: AAACA5478M (APPELLANT) (RESPONDENT) ASSESSEE BY: REVENUE BY: SHRI K. SHIVARAM / RAHUL K HAKANI SMT. KUSUM INGALE DATE OF HEARING: DATE OF PRONOUNCEMENT: 22-07-2011 19-08-2011 O R D E R PER VIJAY PAL RAO (JM): THESE CROSS APPEALS, TWO BY THE ASSESSEE AND TWO BY THE DEPARTMENT ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF CIT (A) BOT H DATED 30-12-2009 FOR THE ASSESSMENT YEAR 2003-04 AND 2006-07. ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 2 2. IN APPEAL ITA NO.2034/M/2010 FOR THE AY 2003-04, THE ASSESSEE HAS RAISED FOLLOWING GROUND: 1. (I) THE HON. CIT (A) ERRED IN LAWS AND FACTS IN UPHOLDING THE DISALLOWANCE OF RS. 3,59,01,115/- U/S 40(A) BEING B ANDWIDTH CHARGES ON ACCOUNT OF NON-DEDUCTION OF TDS FROM PAY MENT MADE TO NON-RESIDENT COMPANY. THE REASON GIVEN BY HIM DOING SO WRONG, CONTRARY TO THE FACTS OF THE CASE A ND AGAINST THE PROVISIONS OF LAW. (II) THE HON. CIT (A) FAILED TO APPRECIATE THAT, B ANDWIDTH CHARGES DOES NOT FALL UNDER THE CATEGORY OF TECHNIC AL SERVICES, ROYALTY OR BUSINESS INCOME AS IT IS NOT TAXABLE UND ER THE TREATY IN THE ABSENCE OF PE, HENCE NO TAX WAS REQUIRED TO BE DEDUCTED AT SOURCE U/S 195 OF THE ACT. 3. THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) ON 28-03-2006. SUBSEQUENTLY, THE COMMISSIONER OF INCOME TAX ISSUED A NOTICE U/S 263 DATED 24.07.2006 PROPOSING REVISION OF ASSESSMENT ORDER O N TWO ISSUES NAMELY I.E., BANDWIDTH CHARGES AND BAD DEBTS AS IN HIS VIEW THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. CONSEQ UENTLY, AN ORDER U/S 263 DATED 05-12-2007 WAS PASSED ON TWO ISSUES AS PROPOSED IN THE SHOW CAUSE NOTICE. THEREAFTER, THE ASSESSING OFFICER HAS PASSED CONSEQ UENTIAL ORDER U/S 143(3) R.W.S.263 OF INCOME TAX ACT DATED 29.12.2008 WHEREB Y BANDWIDTH CHARGES OF RS. 3,39,01,115/- AND BAD DEBTS OF RS. 2,10,74,000/- WA S DISALLOWED. THE ASSESSEE CHALLENGED THE ORDER PASSED BY THE ASSESSING OFFICE R U/S 143(3) R.W.S. 263 BEFORE THE CIT (A) WHO HAS CONFIRMED THE DISALLOWANCE MADE IN RESPECT OF BANDWIDTH CHARGES, HOWEVER, THE CIT (A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF BAD DEBTS. THUS, THE CIT (A) HAS PAR TLY GRANTED RELIEF TO THE ASSESSEE. HENCE, BOTH ASSESSEE AND REVENUE HAVE CH ALLENGED THE IMPUGNED ORDERS OF CIT (A) AND FILED THESE APPEALS BEFORE US . ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 3 4. BEFORE US THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUBMITTED THAT THE CIT (A) WHILE DECIDING THE ISSUE OF BANDWIDTH CHARGES F OLLOWED THE DECISION OF DELHI SPECIAL BENCH OF THIS TRIBUNAL IN CASE OF NEW SKIES SATELLITE BV VS. ADIT, 121 ITD 1, (DEL. SPL. BENCH) WHICH HAS BEEN REVERSED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF ASIA SATELLITE COMMUNICATIONS CO. LTD. VS. DIRECTOR OF INCOME TAX (332 ITR 340). THEREFORE, THE ISSUE IS NOW COVERED IN F AVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE DELHI HIGH COURT. 5. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE HAS SUBMITTED THAT THE FACTS OF THE CASE ARE DISTINGUISHABLE FROM THE FACTS OF THE CASE BEFORE THE HONBLE DELHI HIGH COURT IN THE CASE OF ASIA SATELL ITE COMMUNICATIONS CO. LTD. VS. DIT (SUPRA). HE HAS RELIED UPON THE ORDERS OF THE L OWER AUTHORITIES. 6. THE BENCH RAISED A QUERY AS HOW THE APPEAL OF TH E ASSESSEE QUA THE ISSUE OF DISALLOWANCE OF BANDWITH CHARGES U/S 40(A) IS MA INTAINABLE WHEN THIS ISSUE OF TDS U/S 195 AS WELL AS NATURE OF BANDWITH CHARGES P AID FOR PROVIDING INTERNET THROUGH CABLE HAS BEEN DECIDED BY CIT WHILE PASSING THE ORDER U/S 263 OF IT ACT DATED 05-12-2007 IN VIEW OF THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CASE OF HAMDILLIA CHEMICALS LTD. VS. CIT (221 ITR 194). THE LEARNED AR OF THE ASSESSEE IN RESPONSE TO THE QUERY OF THE BENCH HAS SUBMITTED THAT THE CIT (A) WHILE PASSING THE ORDER U/S 263 DIRECTED THE ASSESS ING OFFICER TO FRAME FRESH ASSESSMENT AFTER GIVING THE OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. THEREFORE, THE AR HAS CONTENDED THAT WHEN THE ISSUE HAS BEEN DECIDED AFRESH BY THE ASSESSING OFFICER THEN THERE IS NO BAR IN CHALL ENGING THE ORDER OF THE ASSESSING OFFICER PASSING U/S 143(3) R.W.S. 263. HE FURTHER CONTENDED THAT IN THE CASE OF HANDILLIA CHEMICALS LTD. VS. CIT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 4 CIT (A) ITSELF BEING NOT MAINTAINABLE WHEREAS IN C ASE OF ASSESSEE THE CIT (A) HAS DECIDED THE ISSUE ON MERITS. THE LEARNED AR THUS A TTEMPTED TO DISTINGUISH THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT AND S UBMITTED THAT WHEN THE ISSUE HAS BEEN DECIDED ON THE MERITS BY THE CIT (A) THEN THE DECISION OF JURISDICTIONAL HIGH COURT IS NOT APPLICABLE IN CASE OF ASSESSEE. HE HA S PLEADED THAT, THE ISSUE IS NOW SETTLED BY THE DECISION OF HONBLE DELHI HIGH COURT . 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAR EFULLY CONSIDERED THE RELEVANT MATERIAL ON RECORD. UNDISPUTEDLY, THE ORI GINAL ASSESSMENT ORDER PASSED ON 28.03.2006 HAD BEEN SET ASIDE BY THE CIT WHILE P ASSING THE ORDER U/S 263 DATED 5-12-2007. THE CIT IN SHOW CAUSE NOTICE PROP OSED TO REVISE THE ASSESSMENT ORDER ON TWO GROUNDS INCLUDING THE ISSUE OF DEDUCTION OF TAX U/S 195 AND CONSEQUENTLY DISALLOWANCE UNDER THE PROVISIONS OF SEC. 40(A) OF INCOME TAX ACT WITH REGARD TO BANDWIDTH CHARGES OF RS. 3,59,01 ,115/- PAID FOR PROVIDING NET ON CABLE TO CUSTOMERS. THE COMMISSIONER OF INCOME TAX HAS DISCUSSED THE ISSUE ELABORATELY WHILE PASSING THE ORDER U/S 263 AND HEL D THAT THESE SERVICES RENDERED BY NETHERLANDS COMPANY ARE NOT SIMPLE SOLUTION OFFE RED TO THE ASSESSEE BUT THESE ARE TECHNICAL IN NATURE AND THE PAYMENT MADE BY THE ASSESSEE CAN BE INTERPRETED TO BE THOSE FOR TECHNICAL SERVICE. ACCORDINGLY, TH E CIT HAS HELD THAT THE ASSESSEE WAS REQUIRED TO DEDUCT THE TDS U/S 195 OF INCOME TA X ACT BUT SINCE THE ASSESSEE FAILED TO DEDUCT THE TAX SEC. 40(A) BECOMES APPLICA BLE AND EXPENDITURE IS NOT ALLOWABLE TO BE DEDUCTED AGAINST THE INCOME AS IT H AS BEEN PAID WITHOUT DEDUCTING TDS THEREON. THE CONCLUDING PART OF THE ORDER U/S 263 BY THE CIT ON THIS ISSUE IS REPRODUCED AS UNDER: IN THE CASE OF THE ASSESSEE THE CUSTOMER ACQUIRES S IGNIFICANT ECONOMIC OR POSSESSORY INTEREST TO THE EXTENT OF BA NDWIDTH HIRED BY THE CUSTOMER. THIS CAPACITY IS MADE AVAILABLE TO T HE ASSESSEE ON THE DEDICATED BASIS TO THE CUSTOMER FOR THE ENTIRE CONTRACT PERIOD. ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 5 THUS PHYSICAL POSSESSION IS NOT A MUST EVEN ACCORDI NG TO TAG. FURTHER WHETHER THE BANDWIDTH IS USED OR NOT, THE C USTOMER HAS TO PAY THE CHARGES AND THE PARTY DOES NOT BEAR ANY RIS K OF DIMINUTION IN RECEIPTS, IF THE ASSESSEE DOES NOT MAKE USE OF B ANDWIDTH AND THE PAYMENT MADE FOR HIRING THE BANDWIDTH WOULD CORRESP OND TO THE RENTAL VALUE. THE SUPREME COURT IN THE CASE OF STA TE OF UP VS UNION OF INDIA 130 STC PG.1 (2003) IN THE CASE RELATED TO SALES TAX HELD THAT PHYSICAL POSSESSION BY THE CUSTOMER IS NOT ABS OLUTELY REQUIRED FOR USER OF THE EQUIPMENT. IN THIS CASE THE CUSTOM ER HAD BEEN PROVIDED WITH THE RIGHT TO USE THE EQUIPMENT IN THE FORM BANDWIDTH CAPACITY / TRANSPONDER AND THE DECISION OF THE SUPR EME COURT IN THE CASE OF BSNL WHICH IS MORE CONCERNED WITH THE DEFIN ITION OF SALE AND THUS DOES NOT AFFECT THE CLAIM OF THE DEPARTMENT TO TAX SUCH AMOUNT AS ROYALTY. FURTHER THE DECISION OF WIPRO LTD. HAV E NOT CONSIDERED THE APPLICABILITY OF ROYALTY FOR USE OF EQUIPMENT U NDER EXPLANATION 2(IVA) TO SEC. 9(1)(VI). FURTHER IT HAS ALSO NOT C ONSIDERED THE AMENDED BELOW SEC. 9(2) WHEREIN IT HAS BEEN SPECIFI CALLY BROUGHT BY FINANCE ACT 2007 WITH RETROSPECTIVE EFFECT FROM 1-4 -1996 THAT WHERE THE INCOME IS ACCRUED OR ARISED IN INDIA SUCH INCOM E SHALL BE INCLUDED IN THE TOTAL INCOME OF THE NON-RESIDENT, W HETHER OR NOT THE NON-RESIDENT HAS RESIDENCE OR PLACE OF BUSINESS OR BUSINESS CONNECTION IN INDIA. FURTHER THERE HAS BEEN AMENDM ENT IN EXPLN-2 ALSO TO SEC. 9(1)(VI) W.E.F. 1-4-2002 WHEREBY USE O R RIGHT TO USE THE EQUIPMENT HAS BEEN BROUGHT UNDER THE DEFINITION OF ROYALTY. THE DECISION OF SKYCELL COMMUNICATION WHICH DEALS WITH THE USE OF MOBILE TELEPHONE DOES NOT APPLY TO THE CASE OF THE ASSESSEE WHICH DEALS IN LEASING OUT THE SATELLITE CAPACITY IN THE FORM OF BANDWIDTH. IT IS THUS SEEN THAT THE AMOUNT PAID TO THE NETHERL AND PARTY IS ROYALTY WITHIN THE MEANING OF SEC.9(1)(VI) OF INCOM E TAX ACT AND IS ALSO COVERED BY FEES FOR TECHNICAL SERVICES. THE V ARIOUS CASE LAWS CITED BY THE ASSESSEE HAVE BEEN TAKEN CARE OF AND D ISCUSSED HEREIN ABOVE. THE ASSESSEE WAS THEREFORE REQUIRED TO DEDUC T TDS U/S 195 OF THE INCOME TAX ACT SINCE IT HAS FAILED TO DEDUCT TAX, SEC. 40(A) BECOME APPLICABLE AND THE EXPENDITURE IS NOT ALLOWA BLE TO BE DEDUCTED AGAINST THE INCOME AS IT HAS BEEN PAID WIT HOUT DEDUCTING TDS THEREON. AS STATED EARLIER THE PROVISION OF AR TICLE 12(2) OF AGREEMENT BETWEEN INDIA AND NETHERLAND ALSO MAKE IT CLEAR THAT THE ROYALTY CAN BE CHARGES TO TAX IN INDIA WITHIN LIMIT OF 20%. SAID SUM IS COVERED UNDER THE DEFINITION OF ROYALTY UNDER TH E DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA AND NETHERLAND. ARTICLE 12(3) OF THE DTAA REQUIRED THE MATTER TO BE SORTED OUT BE TWEEN NETHERLAND PARTY AND JT. SECRETARIAT FTD, CBDT AND THEREFORE THE AO / NETHERLAND PART WOULD BE REQUIRED TO MAKE REFE RENCE TO THE CBDT IN THIS CASE. SUCH SUM CAN ALSO BE COVERED AS FEES FOR TECHNICAL SERVICES BECAUSE FEE FOR TECHNICAL SERVICES MEANS ANY CONSID ERATION RECEIVED NOT ONLY FOR TECHNICAL SERVICES BUT ALSO FOR MANAGE RIAL AND CONSULTANCY SERVICES WHICH EVEN INCLUDED PROVISION OF NOT ONLY TECHNICAL SERVICES BUT OTHER SERVICES ALSO. THE TERM MANAGERIAL, CONSULTANCY SERVICES AND OTHER SERVICES ARE VID E ENOUGH TO COVER ASSESSEES CASE ALSO. ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 6 8. IT IS MANIFEST FROM THE ORDER OF THE CIT PASSED U/S 263 THAT THE CIT HAS DECIDED THE ISSUE OF DEDUCTION OF TAX U/S 195 AND C ONSEQUENTLY THE EXPENDITURE WAS NOT ALLOWED U/S 40(A). THE ONLY ASPECT OF EXAC T PERCENTAGE OF TAX TO BE CHARGED ON THE ROYALTY AS PER THE PROVISIONS OF ART ICLE 12 (2) OF DTAA BETWEEN INDIA AND NETHERLANDS WAS REQUIRED TO BE REFERRED T O THE CBDT AND THEREFORE THE ASSESSING OFFICER WAS TO REFER THE SAID ASPECT TO T HE CBDT. NEVERTHELESS, THE SAID EXERCISE OF FIXING THE EXACT RATE OF TAX AS REQUIRE D UNDER ARTICLE 12(3) OF DTAA IS NOT RELEVANT FOR INVOKING THE PROVISION OF SEC.40(A ) OF INCOME TAX ACT. ONCE THE ISSUE HAS BEEN SETTLED / DECIDED BY THE CIT IN REVI SION ORDER PASSED U/S 263 THEN THE ASSESSING OFFICER HAD TO PERFORM MAINLY THE MIN ISTERIAL FUNCTIONS WITH RESPECT TO THE ISSUE ON DISALLOWANCE BY BANDWIDTH CHARGES. ONCE THE ISSUE HAS BEEN DECIDED AND DEFINITE FINDING HAS BEEN GIVEN BY THE COMMISSIONER OF INCOME TAX IN RESPECT OF DISALLOWANCE OF EXPENDITURE U/S 40(A) TH EN THE ASSESSING OFFICER HAD NO DISCRETION TO TAKE ANY DIFFERENT VIEW ON THE ISSUE. SINCE THE ASSESSEE HAS NOT CHALLENGED THE ORDER PASSED U/S 263 DATED 05-12-200 7 THEREFORE, THE SAME HAS ATTAINED THE FINALITY. IN THESE FACTS AND CIRCUMST ANCES, WE ARE OF THE VIEW THAT THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CA SE OF HARDILLIA CHEMICALS LTD. VS. CIT (SUPRA) IS FULLY APPLICABLE IN THIS CASE. YOUR LORDSHIPS HAVE OBSERVED AT PAGE NO.200 TO 202 AS UNDER: IT IS ABUNDANTLY CLEAR FROM THE ABOVE EXTRACTS THA T THE COMMISSIONER DID DECIDE BOTH THE ISSUES RAISED BEFO RE HIM AND HELD IN NO LESS CLEAR TERMS THAT THE INCOME TAX OFFICER HAD ALLOWED EXCESSIVE AMOUNT UNDER SECTION 80J ON BOTH THE COUN TS MENTIONED ABOVE. IT WAS ONLY AFTER ARRIVING AT SUCH A FINDIN G THAT THE COMMISSIONER WITHDREW THE RELIEF UNDER SECTION 80J OF THE ACT GRANTED BY THE INCOME TAX OFFICER AND DIRECTED HIM TO DETERMINE THE RELIEF AFRESH IN ACCORDANCE WITH LAW AFTER GIVI NG AN OPPORTUNITY TO THE ASSESSEE OF BEING HEARD IN THIS REGARD. ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 7 ON A READING OF THE REVISIONAL ORDER OF THE COMMISS IONER WE HAVE NO DOUBT IN OUR MIND THAT THE DIRECTION OF THE COMMISSIONER TO THE INCOME TAX OFFICER TO DETERMINE THE RELIEF UNDE R SECTION 80J AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE A SSESSEE WAS ONLY FOR THE PURPOSE OF RECOMPUTATION OF THE AMOUNT OF R ELIEF UNDER SECTION 80J BY REDUCING THE VALUE OF WORK IN PROGRE SS FROM THE CAPITAL EMPLOYED AS HELD BY HIM IN PARAGRAPHS 4 AND 5 AND BY REDUCING THE WRITTEN DOWN VALUE OF THE ASSETS BY TH E EXTRA SHIFT ALLOWANCE ALLOWED IN THE PAST AS HELD IN PARAGRAPH 6 OF THE REVISIONAL ORDER. THE DIRECTION TO THE INCOME TAX OFFICER IN THE OPERATIVE PART OF THE ORDER CANNOT BE READ IN ISOLA TION. THE ORDER OF THE COMMISSIONER READ AS A WHOLE MAKES IT ABUNDANTL Y CLEAR THAT THE COMMISSIONER ARRIVED AT CATEGORICAL AND DEFINIT E FINDINGS IN REGARD TO THE CONTENTIONS OF THE ASSESSEE ABOUT INC LUSION OF WORK IN PROGRESS IN THE CAPITAL EMPLOYED FOR THE PURPOSE OF CLAIMING RELIEF UNDER SECTION 80J OF THE ACT AND IN REGARD TO DEDUC TIBILITY OF EXTRA SHIFT ALLOWANCE ALLOWED IN THE PAST FROM THE VALUE OF FIXED ASSETS FOR THE VERY SAME PURPOSE AND REMITTED THE MATTER TO TH E INCOME TAX OFFICER MERELY TO PERFORM THE MINISTERIAL FUNCTION OF RECALCULATING THE AMOUNT OF RELIEF UNDER SECTION 80J. IN SUCH A SITUATION, IT IS EXTREMELY DIFFICULT ON O UR PART TO ACCEPT THE CONTENTION OF LEARNED COUNSEL FOR THE AS SESSEE THAT IN HIS REVISIONAL ORDER, THE COMMISSIONER DID NOT DECIDE T HE POINTS AT ISSUE AND LEFT IT OPEN TO THE INCOME TAX OFFICER TO EXAMI NE THE SAME AFTER HEARING THE ASSESSEE. IN FACT, AS STATED ABOVE, WH AT WAS LEFT TO THE INCOME TAX OFFICER WAS ONLY THE MINISTERIAL WORK OF RECOMPUTING THE RELIEF UNDER SECTION 80J OF THE ACT, OBVIOUSLY, SUB JECT TO FINDINGS CONTAINED IN THE ORDER. IN OUR VIEW, REFERENCE TO AND RELIANCE ON THE OPERA TIVE PART OF THE ORDER WITHOUT REGARD TO THE TEXT OF THE ORDER A ND THE FINDINGS RECORDED THEREIN IS WHOLLY MISPLACED AND IMPROPER. TO UNDERSTAND THE TRUE PURPORT OF AN ORDER, IT HAS TO BE READ AS A WHOLE. THE OPERATIVE PART OF THE ORDER IN THIS CASE HAS TO BE READ AND UNDERSTOOD IN THE LIGHT OF THE CONTROVERSY BEFORE T HE COMMISSIONER AND THE QUESTIONS DECIDED BY HIM. IT CANNOT BE REA D IN ISOLATION FROM THE TEXT OF THE ORDER AND THE DETERMINATION OF THE QUESTIONS ARISING THEREIN BY THE COMMISSIONER. IT IS NEITHER PROPER NO PERMISSIBLE TO PICK OUT ANY PART OF THE ORDER, AND IN THE CASE OF A REMAND ORDER THE OPERATIVE PART THEREOF AND TO READ THE SAME WITHOUT REGARD TO THE QUESTIONS DECIDED THEREIN TO SUPPORT THE CONTENTION THAT ALL ISSUES ARE LEFT OPEN FOR DETERM INATION BY THE AUTHORITIES BELOW. THE TRIBUNAL, IN THIS CASE, IN OUR OPINION, WAS RIGHT IN HOLDING THAT THE REVISIONAL ORDER, WHEREIN A DEFINITE FINDING IS RECORDED ON BOTH THE POINTS AT ISSUE, HAVING BECOME FINAL ON ACCOUNT OF THE FAILURE OF THE ASSESSEE TO PURSUE TH E STATUTORY REMEDIES PROVIDED IN THE ACT AGAINST THAT ORDER, TH E ASSESSEE CANNOT BE ALLOWED TO CHALLENGE SUCH CONCLUDED FINDINGS COL LATERALLY IN ALL APPEAL FILED AGAINST THE FRESH ORDER PASSED BY THE INCOME TAX OFFICER WITH A VIEW TO GIVING EFFECT TO THE SAME. ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 8 IN OUR OPINION, THOUGH AN APPEAL IN MAINTAINABLE FR OM THE FRESH ORDER PASSED BY THE INCOME TAX OFFICER TO GIV E EFFECT TO A REVISIONAL ORDER OR AN APPELLATE ORDER, ONLY SUCH I SSUES CAN BE AGITATED IN SUCH APPEAL WHICH HAVE NOT ATTAINED FIN ALITY BY VIRTUE OF EARLIER ORDERS OF THE REVISIONAL OR APPELLATE AUTHO RITIES. IT IS NOT OPEN IN SUCH AN APPEAL TO AGITATE ANY POINT WHICH H AS ALREADY BEEN DECIDED BY THE REVISIONAL OR THE APPELLATE AUTHORIT IES IN THEIR ORDER. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE FINDING OF THE TRIBUNAL N THE INSTANT CASE. ACCORD INGLY, QUESTION NO.1 IS ANSWERED IN THE AFFIRMATIVE AND IN FAVOUR O F THE REVENUE. ON THE VERY SAME REASONING, QUESTION NO.2 IS ALSO A NSWERED IN FAVOUR OF THE REVENUE. IN THE FACTS AND CIRCUMSTAN CES OF THE CASE, THERE SHALL BE NO ORDER AS TO THE COSTS. 9. THUS, IT IS SETTLED AS PRINCIPLE LAID DOWN BY TH E HONBLE JURISDICTIONAL HIGH COURT THAT ONLY SUCH ISSUES CAN BE AGITATED IN APPEAL WHICH HAVE NOT ATTAINED FINALITY BY VIRTUE OF EARLIER ORDER OF THE REVISION AL AUTHORITY. IT IS NOT OPEN IN SUCH APPEAL TO JUDGE ANY POINT WHICH HAS ALREADY BEEN DE CIDED BY THE REVISIONARY OR APPELLATE AUTHORITY IN THEIR ORDER. IN THE CASE I N HAND WHEN THE CIT WHILE PASSING 263 ORDER HAS GIVEN A DEFINITE FINDING ON THE ISSUE OF DISALLOWANCE OF BANDWIDTH CHARGES U/S 40(A) AND THE SAID ORDER HAS ATTAINED T HE FINALITY ON ACCOUNT OF NOT CHALLENGE BY THE ASSESSEE THEN THE ASSESSEE CANT B E ALLOWED TO CHALLENGE SUCH DEFINITE FINDING IN AN APPEAL FILED AGAINST THE ORD ERS PASSED BY THE ASSESSING OFFICER IN PURSUANT TO THE REVISION ORDER U/S 263. THEREFORE, THE ISSUE OF DEDUCTION OF TAX AT SOURCE U/S 195 AND THE CONSEQUENTIAL DISA LLOWANCE U/S 40(A) WAS CONCLUSIVELY DECIDED BY THE CIT IN 263 AND IN THE A BSENCE OF CHALLENGING THE SAID FINDING AS PER THE REMEDIES PROVIDED UNDER THE LAW, THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE. 10. IN APPEAL ITA NO. 2033/M/2010 FOR THE ASSESSMEN T YEAR 2006-07 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 9 (I) THE LD. CIT (A) ERRED IN LAWS AND FACTS IN UP HOLDING DISALLOWANCE OF RS. 68.12 LACS BEING IRRECOVERABLE INTEREST TAXED IN EARLIER YEARS WRITTEN OFF AND CLAIMED U/S 36/37 OF THE ACT. THE REASONS GIVEN BY HIM FOR DOING SO ARE CON TRARY TO THE FACTS OF THE CASE AND PROVISIONS OF LAW. (II) THE LD. CIT (A) ERRED IN LAWS AND FACTS IN UP HOLDING DISALLOWANCE OF RS. 4.15 LACS BEING IRRECOVERABLE / UNREALIZABLE BUSINESS ADVANCES WRITTEN OFF AND CLAI MED U/S 37 OF THE ACT. THE REASONS GIVEN BY HIM FOR DOING SO ARE CONTRARY TO THE FACTS OF THE CASE AND PROVISIONS OF LAW. 11. DURING THE YEAR THE ASSESSEE HAS CLAIMED BAD DE BTS AMOUNTING TO RS. 6,41,46,828/-. THIS AMOUNT INCLUDES THE BAD DEBTS WRITTEN OFF RS. 5,69,19,203/-, INTEREST RECEIVABLE WRITTEN OFF RS. 68,12,232/- AND ADVANCES / DEPOSITS WRITTEN OFF RS. 4,15,393/-. THE ASSESSING OFFICER DISALLOWED T HE SAID CLAIM OF RS. 6,41,46,828/- AND ADDED BACK TO THE INCOME OF THE A SSESSEE. ON APPEAL THE CIT (A) DELETED THE ADDITION MADE BY THE ASSESSING OFFI CER ON ACCOUNT OF BAD DEBTS WRITTEN OFF OUT OF THE DEBTORS OF THE SALE TO THE E XTENT OF RS. 5,69,19,203/- , HOWEVER, THE CIT (A) SUSTAINED THE DISALLOWANCES MA DE BY THE ASSESSING OFFICER ON ACCOUNT OF THE INTEREST RECEIVABLE OF RS. 68.12 LAC WRITTEN OFF AS WELL AS ADVANCES / DEPOSITS WRITTEN OFF RS. 4.15 LACS. THU S, BOTH THE ASSESSEE AS WELL AS REVENUE ARE IN APPEAL. THE ASSESSEE AGGRIEVED BY C ONFIRMATION OF THE DISALLOWANCE OF INTEREST WRITTEN OFF AND DISALLOWAN CES TOWARDS ADVANCES / CHARGES WHEREAS THE REVENUE IS AGGRIEVED AGAINST THE DELETI ON OF DISALLOWANCES ON ACCOUNT OF BAD DEBTS WRITTEN OFF PERTAINING TO THE SALES. 12. WE HAVE HEARD LEARNED AR AS WELL AS LEARNED DEP ARTMENTAL REPRESENTATIVE AND CONSIDERED THE RELEVANT RECORD. THE LEARNED AR OF THE ASSESSEE HAS SUBMITTED THAT THE ISSUE OF BAD DEBTS WRITTEN OFF IS COVERED BY THE DECISION OF HONBLE SUPREME COURT IN CASE OF TRF LTD. VS. CIT (323 ITR 397) AS THE ASSESSEE IS NOT REQUIRED TO PROVE THAT THE DEBTS HAVE ACTUALLY GONE BAD. IF THE AMOUNT HAS BEEN ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 10 WRITTEN OFF IN THE BOOKS OF ACCOUNT BY TREATING THE SAME AS UNRECOVERABLE DEBT DURING THE YEAR UNDER CONSIDERATION, THE CLAIM OF T HE ASSESSEE IS ALLOWABLE. HE HAS FURTHER SUBMITTED THAT WITHOUT PREJUDICE TO THE RIGHTS AND CONTENTION OF THE ASSESSEE, THE INTEREST WRITTEN OFF HAS TO BE ALLOWE D AS BUSINESS LOSS U/S 37. AS REGARDS RS. 4.15 LACS THE AR OF THE ASSESSEE HAS SU BMITTED THAT THIS AMOUNT INCLUDES RS. 1.2 LAC AS NON-REFUNDABLE RENT DEPOSIT S AND RS. 2.80 LACS SALARY / STAFF ADVANCES WHICH IS A BUSINESS LOSS AS A RESULT OF TH E BUSINESS DISCONTINUED BY THE ASSESSEE AT BHOPAL. HE HAS RELIED UPON THE ORDER O F THIS TRIBUNAL IN CASE OF ACIT VS. SAFE ENTERPRISES (2011) 9 ITR (TRIB) 533 (MUM). HE HAS ALSO REFERRED AN UNREPORTED DECISION OF HONBLE DELHI HIGH COURT DAT ED 11.05.2011 IN CASE OF MOHAN MEAKING LTD. VS. CIT. HOWEVER, THE COPY OF T HE DECISION HAS NOT BEEN PRODUCED BEFORE US. 13. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPR ESENTATIVE HAS SUBMITTED THAT FOR THE CLAIM OF BAD DEBTS, THE ASSESSEE HAS T O BRING ON RECORD THE MATERIAL TO SHOW THAT THE DECISION OF WRITING OFF THE AMOUNT IS AN HONEST AND BONAFIDE DECISION OF THE ASSESSEE. HE HAS FURTHER SUBMITTED THAT WHE N THE CIT (A) HAS CLEARLY BROUGHT OUT THE FACT THAT THE INTEREST WRITTEN OFF BY THE ASSESSEE WAS DUE AGAINST THE DIGITAL SUPER HIGHWAY WHICH IS A GROUP COMPANY OF THE ASSESSEE, THEREFORE, THE ASSESSEE FAILED TO SHOW THAT THIS DECISION OF W RITING OFF IS A BONAFIDE AND HONEST AND NOT MALAFIDE. HE HAS RELIED UPON THE DE CISION OF HONBLE BOMBAY HIGH COURT IN CASE OF OMAN INTERNATIONAL BANK SAOG 323 ITR 128 (BOM). 14. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AS WEL L AS RELEVANT RECORD. AS REGARDS THE DISALLOWANCE OF CLAIM OF INTEREST WRITT EN OFF, THE CIT (A) HAS ADDRESSED THE ISSUE IN PARA. 3.2.3 AS UNDER: ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 11 IN SO FAR AS THE INTEREST RECEIVABLE OF EARLIER YE AR WHICH HAS BEEN WRITTEN OF, APPELLANT SUBMITS THAT RS. 68.12 L AKHS WAS INTEREST RECEIVABLE FROM DIGITAL SUPER HIGHWAY CHARGED IN EA RLIER YEAR AND OFFERED FOR TAXATION IN THE RELEVANT YEAR. THE COM PANY FROM WHOM THE INTEREST WAS RECEIVABLE DISCONTINUED OPERATIONS AFTER 31.3.2001 AND VANISHED AND ITS DIRECTIONS WERE ALSO NOT AVAIL ABLE. THE AMOUNTS WERE NOT RECOVERABLE AND TURNED BAD. HENCE APPELLA NT HAS WRITTEN OFF THE INTEREST RECEIVABLE. APPELLANT ALSO STATED TO HAVE ENCLOSED A LETTER IN SUPPORT OF NON-RECOVERABILITY AND CLAIMED THE ALLOWANCE UNDER SECTION 36/37 OF THE ACT. FACTS AND MATERIAL ON RECORD ARE CONSIDERED. THE LETTER OF NON-RECOVERABILITY IS AC TUALLY COPY OF A LETTER WRITTEN BY THE APPELLANT TO THE ASSESSING OF FICER NARRATING DIFFICULTIES IN PAYMENT OF TAXES AND FOR NON-LEVY O F PENALTY. THE PARTY NAME OF DIGITAL SUPERHIGHWAY HAS NOT BEEN MENTIONED ANYWHERE IN THE SAID LETTER. IT IS ALSO OBSERVED THAT THE SAID COMPANY WAS EXTENDED MONIES BY APPELLANT AS INTER CORPORATE DEP OSITS. DIGITAL SUPERHIGHWAY WAS A GROUP COMPANY FOR THE APPELLANT. APPELLANTS ARGUMENT, THEREFORE, THAT THE MONEY WAS NOT RECOVER ABLE AS THAT SAID COMPANY HAD DISCONTINUED OPERATIONS AND HAD VANISHE D AND ITS DIRECTORS WERE NOT AVAILABLE IS NOT AN ACCEPTABLE A RGUMENT. THE WRITE-OFF OF INTEREST OF RS. 68.12 LAKHS IS THEREFO RE HELD NOT ALLOWABLE AND DISALLOWANCE AND BY AO UPHELD. 15. THE ASSESSEE CONTENTION BEFORE THE LOWER AUTHOR ITY WAS THAT THE COMPANY FROM WHICH THE INTEREST WAS RECEIVABLE DISCONTINUED THE OPERATION AFTER 31.03.2001 AND VANISHED. THE DIRECTORS OF THE DEBT OR COMPANY WERE ALSO NOT AVAILABLE. THE CIT (A) HAS GIVEN A FINDING THAT TH E ASSESSEE HAS EXTENDED MONEY AS INTER CORPORATE DEPOSIT (ICD) TO DIGITAL SUPER H IGHWAY WHICH IS A GROUP COMPANY OF THE ASSESSEE. THUS IT WAS OBSERVED BY T HE CIT (A) THAT THE VERY REASON OF WRITING OFF THE INTEREST RECEIVABLE AND T REATING THE SAME AS BAD WAS NOT FOUND CORRECT AND ACCEPTABLE. IN OTHER WORDS, THE VERY BASIS THAT THE DEBTOR COMPANY DISCONTINUED THE OPERATION AND VANISHED AND THEIR DIRECTORS WERE NOT AVAILABLE HAS TURNED OUT TO BE INCORRECT AND BEYOND ACCEPTABLE FACT. THE ASSESSEE FAILED TO QUALIFY THE TEST OF AN HONEST AND BONAFID E DECISION OF WRITING OFF DEBTS. IN VIEW OF THE ABOVE FACTS EMERGED FROM THE RECORD, TH E EXPLANATION AND CONTENTION OF THE ASSESSEE DO NOT INSPIRE CONFIDENCE AND ACCOR DINGLY WE DO NOT FIND ANY ERROR ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 12 OR ILLEGALITY IN THE IMPUGNED ORDER OF THE CIT (A) QUA THE ISSUE OF DISALLOWANCE OF THE AMOUNT WRITTEN OFF IN RESPECT OF INTEREST RECEI VABLE. 16. THIS ISSUE IS DECIDED AGAINST THE ASSESSEE. 17. AS REGARDS THE CLAIM OF RS. 4.15 LACS WRITTEN O FF ON ACCOUNT OF ADVANCES AND DEPOSITS BECOME UNRECOVERABLE. SINCE, THE ASSESSEE HAS CONTENDED BEFORE US THAT THIS AMOUNT HAS BECOME UNRECOVERABLE DUE TO THE BUS INESS DISCONTINUED AT BHOPAL. THE ASSESSEE HAS STRONGLY RELIED UPON THE DETAILS AS PER THE PAPER BOOK. SINCE THE RELEVANT DETAILS ARE REQUIRED TO BE EXAMI NED, WE SET ASIDE THIS ISSUE TO THE RECORD OF THE ASSESSING OFFICER FOR RECONSIDERA TION AND ADJUDICATION OF THE SAME AFTER CONSIDERING THE CONTENTION OF THE ASSESS EE AS WELL AS THE ORDERS CITED BY THE ASSESSEE. 18. ACCORDINGLY THIS ISSUE IS ALLOWED FOR STATISTIC AL PURPOSES. ITA NO.1254 & 1255/M/2010: (BY REVENUE) 19. THE REVENUE HAS RAISED THE FOLLOWING EFFECTIVE GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES IN THE CASE A ND IN LAW, THE LD. CIT (A) ERRED IN DIRECTING TO DELETE THE DI SALLOWANCE OF BAD DEBTS AMOUNTING TO RS. 5,69,19,203/- IGNORING T HE FACT THAT THE ASSESSEE HAD NOT FULFILLED THE CONDITIONS LAID DOWN U/S 36(1)(VII)/37(1) OF THE I.T. ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES IN THE CAS E AND IN LAW, THE LD. CIT (A) ERRED IN DIRECTING TO DELETE ADDITI ON MADE ON ACCOUNT OF SUBSCRIPTION INCOME OF RS. 5,57,81,59,74 8/-. 20. GROUND NO.1 IS COMMON IN BOTH ASSESSMENT YEARS EXCEPT THE QUANTUM OF ADDITION WHEREAS GROUND NO.2 REGARDING A DDITION ON ACCOUNT OF SUBSCRIPTION INCOME FOR THE ASSESSMENT YEAR 2006 -07. ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 13 21. GROUND NO.1 IS REGARDING DISALLOWANCE OF BAD DE BTS. WE HAVE HEARD THE LEARNED DR AS WELL AS LEARNED AR AND CONSIDERED THE RELEVANT RECORD. THIS AMOUNT WRITTEN OFF REPRESENTS THE TRADE DEBTS WHICH IS NOT DISPUTED BY THE REVENUE. HOWEVER, THE ASSESSING OFFICER DISALLOWED THE SAME ON THE GROUND THAT THE ASSESSEE FAILED TO PROVE THAT WHAT STEPS WERE TAKEN TO RECOVER THE DEBTS. AT THE OUT SET WE NOTE THAT IN VIEW OF THE DECISION OF HON BLE SUPREME COURT IN CASE (323 ITR 397) (SUPRA), THE ASSESSEE IS NOT REQUIRED TO E STABLISH THAT THE DEBTS HAVE ACTUALLY GONE BAD AND IT IS ENOUGH IF BAD DEBTS IS WRITTEN OFF AS IRRECOVERABLE IN THE ACCOUNTS OF THE ASSESSEE. ACCORDINGLY, WE DO NOT F IND ANY REASON TO INTERFERE WITH THE IMPUGNED ORDER OF THE CIT (A) QUA THIS ISSUE. 22. FOR THE ASSESSMENT YEAR 2006-07 THE REVENUE HAS RAISED ANOTHER GROUND REGARDING DELETION OF ADDITION ON ACCOUNT OF SUBSCR IPTION INCOME. WE HAVE HEARD THE LEARNED DR AS WELL AS AR AND CONSIDERED THE REL EVANT RECORD. AT THE OUT SET WE NOTE THAT THIS ISSUE HAS BEEN CONSIDERED AND ADJ UDICATED BY THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE AY 1997-98 AND AY 2003- 04. FOR THE AY 2003-04 IN ITA NO.300/M/2007 VIDE ORDER DATED 26 TH MARCH, 2008 THIS TRIBUNAL HAS DECIDED THIS ISSUE IN PARA 6 & 7 AS UNDER: 6. SIMILAR ISSUE AROSE BEFORE THE TRIBUNAL IN ASSESSEE S OWN CASE IN ITA NO.6178/MUM/2003 RELATING TO ASSESSMENT YEAR 1997- 98, WHEREIN VIDE ORDER DATED 09.03.2007 (WHEREIN JM IS ONE OF THE MEMBERS), IT WAS HELD AS UNDER: WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORDS. THE FACTS BEING IDENTICAL TO THE ASSESSMENT YEAR 1998-99 AS THE REOPENING AND ADDITION WAS MADE BASED ON THE SAME ADVERTISEMENT BROCHURE, THERE WAS NO MERIT IN THE PRESENT APPEAL FILED BY THE REVENUE. IN VIEW OF TH E FACT THAT THE SOLE BASIS FOR ADDITION IN THE PRESEN T CASE WAS ADVERTISEMENT BROCHURE DATED 15.06.1997, WHICH WAS ALSO THE BASIS FOR MAKING THE ADDITION IN ASSESSMENT YEAR 1998-99, RESPECTFULLY FOLLOWING THE ORDER OF CO-ORDINATE ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 14 BENCH OF TRIBUNAL WE DISMISS THE GROUND OF APPEAL RAISED BY THE REVENUE AND UPHELD THE ORDER OF CIT (A) IN CANCELING THE IMPUGNED ADDITION ON ACCOUNT OF PROPORTIONATE SUBSCRIPTION FROM ESTIMATED SUBSCRIBERS. THUS, THE GROUND OF APPEAL RAISED BY THE REVENUE IS DISMISSED AS THERE IS NO MERIT IN TH E APPEAL ON ESTIMATION OF INCOME FOR THE YEAR UNDER CONSIDERATION, WHICH IN-TURN WAS BASED ON THE ADDITIONS IN THE PRECEDING YEAR. 7. THAT, SINCE THE BASIS FOR ESTIMATING THE SUBSCRI PTION INCOME FOR THE YEAR UNDER CONSIDERATION IS THE INCOME RECE IVED IN ASSESSMENT YEAR 1998-99, WHICH HAS BEEN DELETED BY THE TRIBUNAL IN ITA NO.1368/MUM/1997 VIDE ORDER DATED 27,01,2003 WHICH HAS BEEN FOLLOWED IN ASSESSMENT YE AR 1997-98 VIDE ORDER DATED 09.03.2007 AND IN ASSESSME NT YEAR 2000-01 IN ITA NO.1251/MUM/2004 VIDE ORDER DATED 22.02.2007, WE FIND NO MERIT IN THE ESTIMATION OF S UBSCRIPTION INCOME FOR THE YEAR UNDER CONSIDERATION. ACCORDING LY, WE CONFIRM THE ORDER OF CIT (A) IN DELETING THE SAID A DDITION. THE GROUND OF APPEAL RAISED BY THE REVENUE IS DISMISSED . 23. THE APPEAL FILED BY THE REVENUE AGAINST THE ORD ER OF THIS TRIBUNAL FOR THE ASSESSMENT YEAR 1997-98 AND 2003-04 HAVE BEEN DISMI SSED BY THE HONBLE JURISDICTIONAL HIGH COURT IN APPEAL NOS. 662/2009 & 2754/2009 RESPECTIVELY. SINCE NOTHING CONTRARY HAS BEEN BROUGHT BEFORE US B Y THE REVENUE THEREFORE, IN VIEW OF THE ORDER OF THIS TRIBUNAL IN ASSESSEES OW N CASE, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. 24. IN THE RESULT ASSESSEES APPEAL IN ITA NO.2034/ M/2010 AS WELL AS REVENUES APPEALS IN ITA NO.1254 & 1255/M/2010 ARE DISMISSED AND ASSESSEES APPEAL IN ITA NO.2033/M/2010 IS PARTLY ALLOWED. THE ORDER WAS PRONOUNCED IN OPEN COURT ON 19TH AUG UST, 2011 SD/- SD/- (PRAMOD KUMAR) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE : 19-08-2011 AT :MUMBAI OKK ITA NOS: 2033,2034,1254 & 1255 M/S DISH INDIA LTD 15 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), MUMBAI CONCERNED 4. THE CIT, MUMBAI CITY CONCERNED 5. THE DR D BENCH, ITAT, MUMBAI // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI