The ITO, Ward-2(4), Surat V. Shri Vishal Janakkumar Agarwal, Surat

ITA 2086/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9504 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-10-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 30-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTAD R
• Keywords: Diversion of income
• Section: 143(3); 80HHC; 234B; 37(1); 145; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI N.S.SAINI, ACCOUNTANT MEMBER DATE OF HEARING :19.10.10 DRAFTED ON: 20.10.10 ITA NO.2086/AHD/2008 WITH C.O.NO.287/AHD/2008 ASSESSMENT YEAR :2004-05 THE INCOMETAX OFFICER, WARD 2(4), AAYAKAR BHAVAN, MAJURA GATE, SURAT. VS. SHRI VISHAL JANAKKUMAR AGARWAL, 414, EMPIRE STATE BUILDING,UDHNA DARWAJA, SURAT. PAN/GIR NO. :ADJPA 4435 D (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI R.K. DHANESTA,D.R. RESPONDENT BY: NONE. O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE REVENUE AND THE CROS S OBJECTION FILED BY THE ASSESSEE AGAINST THE ORDER O F LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, SURAT, DAT ED 28.2.2008. THE RELEVANT ASSESSMENT YEAR IS 2004-20 05. THE APPEAL ARISES OUT OF ASSESSMENT COMPLETED UNDER SEC TION 143(3) OF THE INCOME TAX ACT, 1961. 2. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE A S FOLLOWS :- - 2 - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN DELETING THE ADDITION ON ACCOUNT OF DISALLOWANCE OF FOREIGN BUYERS AGENT COMMISSION UN DER SECTION 37 (R.W.S. 93) FOR RS.42,07,936/- 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. AS PER THE LEARNED ASSESSING OFFICER, THE ASSESS EE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF EXPORT AND IM PORT OF ART SILK CLOTH AND COLOUR CHEMICALS. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO SOUGHT TO VERIFY THE EXPORT INV OICES ISSUED BY THE ASSESSEE AND THE BANK REALIZATION CERTIFICAT ES OBTAINED BY HIM TO SEE THE CORRECTNESS OF THE EXPORT SALES ACCO UNT FILED BY THE ASSESSEE. ON VERIFICATION OF THE INVOICES AND BANK CERTIFICATES, THE AO FOUND THAT THE ASSESSEE HAS PAID COMMISSION TO THE FOREIGN AGENT @ 12% AMOUNTING TO RS.42,07,936/- IN RESPECT OF EXPORTS MADE DURING THE YEAR IN THE RESPECTIVE INV OICE ITSELF. TO THE QUERIES RAISED BY THE AO, THE REPLY OF THE ASSE SSEE WAS THAT THE COMMISSION WAS PAID TO THE BUYERS/IMPORTERS HIM SELF, AS DEDUCTION DIRECTLY FROM THE EXPORT SALES INVOICE. THE ASSESSEE SUBMITTED THAT IT IS CUSTOMARY IN THIS LINE OF EXPO RT TRADE TO ALLOW COMMISSION TO THE BUYER/IMPORTER HIMSELF DIRECTLY F ROM THE SALE INVOICE. HE STATED THAT THE RATE OF DEDUCTION ON A CCOUNT OF COMMISSION USED TO BE DECIDED AT THE TIME OF ENTERI NG INTO SALES CONTRACT ITSELF. THE LETTERS OF CREDIT ISSUED BY T HE BANK WERE OBTAINED FOR THE SALE PROCEEDS NET OF COMMISSION AS COMMISSION TO THE BUYER/IMPORTER IS DEDUCTED DIRECTLY FROM THE INVOICE PRICE. THE ASSESSEE EXPLAINED THAT THIS ADJUSTMENT WAS NEV ER TREATED AS - 3 - PAYMENT OF COMMISSION IN THE ACCOUNT OF THE ASSESSE E AS DEDUCTION AS ALLOWED TO THE BUYER HIMSELF AND NOT T O A THIRD PERSON. THE FOREIGN BUYER MAKES THE PAYMENT OF THE NET AMOUNT ONLY AND THE SALES ARE RECORDED IN THE ACCOUNTS OF THE ASSESSEE FOR THE NET AMOUNT. 4. THE AO DID NOT ACCEPT THE VARIOUS ARGUMENTS AND EXPLANATIONS OFFERED BY THE ASSESSEE AND HELD THAT THE COMMISSION PAID BY THE ASSESSEE TO THE BUYERS/IMPOR TERS FORMED PART OF HIS SALES AND THEREFORE LIABLE TO BE TREATE D AS INCOME OF THE ASSESSEE. ACCORDINGLY, THE AO MADE AN ADDITION OF RS.42,07,936/- TO THE RETURNED INCOME OF THE ASSESS EE ON THE ABOVE GROUND. 5. IN THE FIRST APPEAL, THE CIT(A) CONSIDERED THE I SSUE EXTENSIVELY. HE FOUND THAT THE BANKS HAVE INFORME D THE AO THAT THE ASSESSEE HAD NOT REMITTED ANY AMOUNT OF COMMISS ION FROM INDIA DURING THE PREVIOUS YEAR RELEVANT TO THE ASSE SSMENT YEAR UNDER APPEAL AND THE COMMISSION HAD BEEN DIRECTLY D EDUCTED FROM THE EXPORT INVOICES. THE BANKS HAVE FURTHER R ECONCILED AND CERTIFIED THAT THE COMMISSIONS PAID BY THE ASSESSEE THROUGH THE EXPORT INVOICES WERE ON THE BASIS OF GUARANTEED REC EIPT (GR) AND SDF FORMS SCRUTINIZED BY THE RESERVE BANK OF IN DIA. THE AO OBSERVED THAT THE PAYMENTS OF COMMISSION TO BUYE RS IN UAE ARE BOUND BY THEIR REGULATIONS AND ACCORDINGLY DID NOT ACCEPT THE CONTENTIONS OF THE ASSESSEE REGARDING THE PAYMENT O F COMMISSION TO FOREIGN BUYERS. - 4 - 6. THE LEARNED ASSESSING OFFICER HAS FURTHER ROPED DOWN THE PROVISIONS OF LAW CONTAINED IN SECTION 194H TO AMPL IFY THE CONCEPT OF SERVICES RENDERED AGAINST THE PAYMENT OF COMMISSION. THE AO IN RELYING ON THE LAW CONTAINED IN SECTION 5 OF THE INCOME TAX ACT TO HOLD THAT THE COMMISSIONS PAID BY THE ASSESSEE THROUGH THE EXPORT INVOICE ARE IN THE NATU RE OF INCOME ACCRUES OR ARISING TO THE ASSESSEE OUTSIDE INDIA. 7. IN APPEAL THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS HELD AS UNDER:- 7. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. IN THE EXPLANATION BELOW SEC. 194H OF THE I.T. ACT, COMMISSION OR BROKERAGE HAS BEEN DEFINED TO INC LUDE ANY PAYMENT RECEIVED OR RECEIVABLE DIRECTLY OR INDI RECTLY, BY A PERSON ACTING ON BEHALF OF ANOTHER, FOR SERVIC ES RENDERED IN COURSE OF BUYING OR SELLING OF GOODS, O R IN RELATION TO ANY TRANSACTION RELATING TO ANY ASSET, VALUABLE ARTICLE OR THING, NOT BEING SECURITIES. IN COMMERCI AL LAW, COMMISSION IS THE COMPENSATION TO A FACTOR OR OTHER AGENT FOR SERVICES TO BE RENDERED IN MAKING A SALE OR OTH ERWISE. IT IS AN ALLOWANCE OR RECOMPENSE OR A REWARD MADE TO A GENTS, BROKERS OR OTHERS FOR EFFECTING SALES FOR CARRYING OUT BUSINESS TRANSACTIONS. IT IS GENERALLY CALCULATED A S A CERTAIN PERCENTAGE ON THE AMOUNT OF TRANSACTIONS OF THE PRO FITS TO THE PRINCIPAL (THE LAW LEXICON BY RAMANATHA IYER AN D EDITED BY JUSTICE Y.V. CHANDRACHUD). ACCORDING TO WEBSTERS NEW INTERNATIONAL INTERNATIONAL DICTIONAR Y IT IS THE PERCENTAGE OR ALLOWANCE MADE TO A FACTOR OR AGE NT FOR TRANSACTING BUSINESS FOR ANOTHER. IN THE CASE OF AH MEDABAD STAMP VENDORS ASSOCIATION VS. UNIONOF INDIA (2002) 257 ITR 202, THE HON'BLE GUJARAT HIGH COURT EXPLAINED W HAT COULD BE TREATED AS COMMISSION: THE DEFINITION OF COMMISSION OR BROKERAGE AS CONTAINED IN THE EXPLANATION TO SECTION 194H IS NOT SO WIDE THAT IT WOULD INCLUDE ANY PAYMENT - 5 - RECEIVABLE, DIRECTLY OR INDIRECTLY, FOR SERVICES IN THE COURSE OF BUYING OR SELLING OF GOODS. IN OTHER TO F ALL WITHIN THE AFORESAID EXPLANATION, THE PAYMENT RECEIVED OR RECEIVABLE DIRECTLY OR INDIRECTLY, IS B Y A PERSON ACTING ON BEHALF OF ANOTHER PERSON (I) FOR SERVICES RENDERED (NOT BEING PROFESSIONAL SERVICES) , OR (II) FOR ANY SERVICES IN THE COURSE OF BUYING OR SELLING OF GOODS, OR (III) IN RELATION TO ANY TRANS ACTION RELATING TO ANY ASSET, VALUABLE ARTICLE OR THING. T HE ELEMENT OF AGENCY HAS TO BE THERE IN CASE OF ALL SERVICES OR TRANSACTIONS CONTEMPLATED BY EXPLANATIO N (I) TO SEC. 194(H). THERE IS A DISTINCTION BETWEEN A CONTRACT OF SALE AND A CONTRACT OF AGENCY BY WHICH THE AGENT IS AUTHORISED TO SELL OR BUY ON BEHALF OF THE PRINCIPAL. THE ESSENCE OF A CONTRACT OF SALE IS THE TRANSFER OF TITLE TO THE GOODS FOR A PRICE PAID OR PROMISED TO BE PAID. THE TRANSFEREE IN SUCH A CASE IS LIABLE TO THE TRANSFEROR AS A DEBTOR FOR THE PRICE TO BE PAID AND NOT AS AGENT FOR THE PROCEEDS OF THE SALE. THE ESSENCE OF AGENCY TO SELL IS THE DELIVERY OF TH E GOODS TO A PERSON WHO IS TO SELL THEM NOT AS HIS OW N PROPERTY BUT AS THE PROPERTY OF THE PRINCIPAL WHO CONTINUES TO BE THE OWNER OF THE GOODS, AND WILL THEREFORE BE LIABLE TO ACCOUNT FOR THE SALE PROCEED S. THE CONCEPT OF SALE HAS UNDERGONE A REVOLUTIONARY CHANGE, HAVING REGARD TO THE COMPLEXITIES OF MODERN TIMES AND THE EXPANDING NEEDS OF SOCIETY, WHICH HAS MADE A DEPARTURE FROM THE DOCTRINE IN LAISSEZ FAIRE BY INCLUDING A TRANSACTION WITHIN THE FOLD OF A SALE E VEN THOUGH THE SELLER MAY BY VIRTUE OF AN AGREEMENT IMPOSE A NUMBER OF RESTRICTIONS ON THE BUYER, E.G., FIXATION OF PRICE, SUBMISSION OF ACCOUNTS, SELLING IN A PARTICULAR AREA OR TERRITORY AND SO ON. THESE RESTRICTIONS PER SE WOULD NOT CONVERT A CONTRACT OF SALE INTO ONE OF AGENCY, BECAUSE IN SPITE OF THESE RESTRICTIONS THE TRANSACTION WOULD STILL BE A SALE AND SUBJECT TO ALL THE INCIDENTS OF SALE. 7.1. AS HELD BY THE HON'BLE COURT, THE INGREDIENTS OF WHAT IS COMMISSION ARE CONTAINED IN THE EXPLANATION TO SEC. 194H. THERE HAS TO BE RENDERING OF SERVICES, S UCH - 6 - SERVICES HAVE TO BE RENDERED IN THE COURSE OF BUYIN G AND SELLING OF GOODS OR IN RELATION TO ANY TRANSACTION INVOLVING ANY ASSET, VALUABLE ARTICLE OR THING. THERE HAS TO BE AN ELEMENT OF AGENCY IN THE RENDERING OF ALL SUCH SERV ICES OR TRANSACTIONS AND THE AGENT SHOULD HAVE BEEN AUTHORI SED TO BUY OR SELL ON BEHALF OF THE PRINCIPAL. WHILE THE T RANSFEREE OR THE BUYER IS LIABLE TO THE TRANSFEROR OR THE SEL LER TO PAY THE PRICE FOR THE GOODS, THE LIABILITY OF THE AGENT IS TO ENSURE THE DELIVERY OF THE GOODS TO THE BUYER NOT A S HIS OWN PROPERTY BUT AS THE PROPERTY OF THE PRINCIPAL O R THE SELLER/TRANSFEROR. 7.2. IF SUCH PRINCIPLES AS ENUNCIATED BY THE HON'BL E COURTS ARE TO BE APPLIED IN THE CASE OF THE ASSESSE E, IT WILL BE SEEN THAT ALL THE ELEMENTS/INGREDIENTS WHICH ARE REQUISITE FOR ANY TRANSACTION INVOLVING PAYMENT OF COMMISSION, WERE PRESENT. FIRSTLY, EACH OF THE TRAN SACTIONS BETWEEN THE ASSESSEE AS THE SELLER AND THE BUYERS W AS MEDIATED BY THE AGENT, AI GHAZI AI SAQLIAN TRADING LLC OF JUMMA MASJID ROAD, BOR DUBAI, UAE. IN FACT, THE ASSESSEE HAS FURNISHED A PURCHASE ORDER DATED 15.6. 2003 FROM THE SAID CONCERN WHICH CLEARLY SHOWS THAT THE AGENT HAD INDEED RENDERED SIGNIFICANT SERVICES NOT ONLY T O THE BUYER BUT ALSO TO THE ASSESSEE. IT MENTIONS THE RA TE OF COMMISSION PAYABLE AT 12%. IN FACT, THE EXPORT DOCU MENTS, COPIES OF WHICH HAVE BEEN SUBMITTED BY THE LEARNED AUTHORISED REPRESENTATIVE, AND WHICH INCLUDE THE EX PORT INVOICES, THE BRCS, THE SHIPPING BILLS, THE CUSTOMS DOCUMENTS AS ALSO THE REMITTANCE CERTIFICATES ISSUE D BY THE BANK, ALL CLEARLY ESTABLISH THE ROLE PLAYED BY THE SAID AGENT. THE INVOICES SHOW THE AGENT AS THE BUYER AND THE ACTUAL BUYER AS THE CONSIGNEE. THE BRCS CLEARLY INDICATE THE COMMISSION PAYABLE TO THE FOREIGN AGENT. ONE OF THE DOCUMENTS WHICH HAS BEEN EXAMINED BY ME SHOW THAT M/S. AL GHAZI AL SAQLIAN TRADING LLC OF DUBAI AS TH E BUYER AND THE CONSIGNEE AS M/S. SONARGOAN ENTERPRIS ES OF RIYADH, SAUDI ARABIA, WHICH CLEARLY INDICATES AND ESTABLISHES THE ASSESSEES CLAIM THAT M/S. AL GHAZI , AL SAQLIAN TRADING LLC HAD PLACED ORDERS ON BEHALF OF THE BUYERS, AND BEFORE DOING SO, HAD PROCURED SAMPLES, DECIDED THE QUANTUM OF THE ORDER ETC. ETC. THE FACT THAT THE - 7 - AGENT HAD ALSO ENSURED THE RECOVERY OF PAYMENTS FRO M THE BUYERS IS EVIDENCED BY THE BRCS WHICH SHOW M/S. AL GHAZI AL SAQLIAN TRADING LLC AS THE DRAWEE WHO HAD REMITTED THE EXPORT PROCEEDS AFTER RETAINING THEIR COMMISSION. THUS, NOT ONLY WAS THE EXISTENCE OF THE AGENT ESTABLISHED BEYOND DOUBT, BUT ALSO THE NATURE AND E XTENT OF SERVICES RENDERED FROM THEM WAS FULLY PROVED AND VE RIFIED. IT IS THEREFORE, VERY SURPRISING THAT THE ASSESSING OFFICER REJECTED SUCH IMPORTANT EVIDENCES IN A VERY ROUTINE MANNER WITHOUT EVEN CONSIDERING OR APPRECIATING THE NATURE OF TRANSACTIONS ENTERED INTO BY THE ASSESSEE. EVEN THO UGH THE AGENT WAS OF THE FOREIGN BUYER YET, ITS FUNCTIONING WAS OF CLEAR BENEFIT TO THE ASSESSEE AS WELL. THE EVIDENCE S PRODUCED BY THE ASSESSEE COULD NOT BE WISHED AWAY O N THE MERE GROUND THAT THE AGENT PROVIDED SERVICES ONLY T O THE BUYER AND NOT TO THE ASSESSEE. THIS FACT WAS CLEARL Y ESTABLISHED BY THE ENTRIES IN THE EXPORT DOCUMENTS AND ALSO IN THE BRCS. THESE DOCUMENTS NOT ONLY ESTABLISHED T HE IDENTITY OF THE AGENT, THE NATURE AND THE EXTENT OF SERVICES RENDERED BUT ALSO THE GENUINENESS OF THE TRANSACTIO NS. WHAT IS IMPORTANT TO NOTE IS THAT, THE TRANSACTIONS WERE CONDUCTED IN ACCORDANCE WITH THE TERMS AND CONDITIO NS AGREED UPON BETWEEN THE SELLER AND THE BUYER, THE B UYER AND THE AGENT, AND BETWEEN THE AGENT AND THE SELLER , EVEN THOUGH THERE WAS NO FORMAL AGREEMENT BETWEEN THEM. 7.3. IT HAS BEEN ARGUED BY THE ASSESSING OFFICER TH AT IF AT ALL SUCH COMMISSION AGENT HAD RENDERED ANY SERVICE TO THE ASSESSEE, THEN THE ASSESSEE WOULD HAVE PAID COMMISS ION TO SUCH PARTY DIRECTLY THROUGH THE BANKING CHANNELS, W ITH PROPER AND PRIOR APPROVAL OF THE RBI. SINCE THIS WA S NOT DONE, THE CLAIM OF COMMISSION PAYMENTS COULD NOT BE ACCEPTED. YES, THE ASSESSEE COULD HAVE EASILY DONE SO AS OBSERVED BY THE ASSESSING OFFICER. HOWEVER, WHAT TH E ASSESSING OFFICER FAILED TO APPRECIATE IS THE FACT THAT, THE DEDUCTION FROM THE GROSS INVOICE VALUES WAS A MUCH SIMPLER METHOD THAN TO GO IN FOR DIRECT REMITTANCES WHICH WOULD HAVE INVOLVED THE DEDUCTION OF TAX AT SOURCE, AND THE CONSEQUENT INTERACTION WITH THE I.T. DEPARTMENT . MOST IMPORTANTLY, WHEN THE BASIC EVIDENCE REGARDING THE RENDERING OF SERVICES AND THE PAYMENT OF COMMISSION HAD - 8 - BEEN CLEARLY ESTABLISHED, SUCH OBJECTIONS INVOLVING PROCEDURES AND PRACTICES BECOME COMPLETELY IRRELEVA NT. 7.4. THUS, ONCE THE GENUINENESS OF THE COMMISSION PAYMENTS AS WELL AS ITS JUSTIFICATION OF HAVING BEE N WHOLLY AND EXCLUSIVELY INCURRED FOR THE PURPOSE OF ASSESSE ES BUSINESS IS ESTABLISHED, THE SAME BECOMES ADMISSIBL E AS DEDUCTION UNDER SECTION 37(1) OF THE I. T. ACT. HOW EVER, IN THIS PARTICULAR CASE, AND IN MANY SIMILAR CASES, SI NCE THE COMMISSION HAD BEEN DEDUCTED FROM THE GROSS INVOICE VALUES, NO SEPARATE RECOGNITION WAS GIVEN IN THE BO OKS OF ACCOUNT TO SUCH PAYMENTS AND CONSEQUENTLY, NO EXPENDITURE WAS CLAIMED UNDER SUCH A HEAD IN THE P & L A/C. THEREFORE, THE ASSESSING OFFICERS OBSERVATION REGARDING THE INCORRECT ACCOUNTING TREATMENT GIVEN BY THE ASSESSEE TO SUCH TRANSACTIONS WAS WITHOUT ANY BASIS . THE ASSESSING OFFICER HAS REPRODUCED THE CONTENTS OF TH E ACCOUNTING STANDARD-I, WHICH HOWEVER WAS NOT APPLIC ABLE TO THE ASSESSEES CASE, GIVEN THE NATURE OF THE TRA NSACTIONS ENTERED INTO BY THE ASSESSEE. THE ASSESSING OFFICER HAS ALSO REFERRED TO SEC.5 OF THE I.T. ACT WHICH DEFINE S TOTAL INCOME. IT IS OBVIOUS IN THE NATURE THE TRANSACTION S WHICH HAVE BEEN DISCUSSED ABOVE IN DETAIL, THAT, WHAT MAY HAVE ACCRUED TO THE ASSESSEE WERE THE GROSS INVOICE VALU ES YET, THE ASSESSEE UNDER THE TERMS OF THE AGREEMENT OR UNDERSTANDING WITH THE BUYER, HAD TO DEDUCT FROM TH E INVOICES THE AMOUNT OF COMMISSION PAYABLE. IN THE BACKGROUND OF SUCH FACTS, IT COULD NOT BE HELD THAT THE GROSS INVOICE AMOUNTS WERE WHAT HAD ACCRUED TO THE ASSESSEE, AND THESE WERE THE AMOUNTS ON WHICH THE ASSESSEE SHOULD HAVE BEEN ASSESSED. THIS WOULD BE T AKING A VERY ILLOGICAL AND IRRATIONAL VIEW OF THE MATTER. THE OUTGOING COMMISSION FROM THE INVOICE VALUES WOULD H AVE TO BE REDUCED FROM THE GROSS AMOUNTS, AND THE NET A MOUNT WHICH WAS THE ACTUAL SUM RECEIVED BY THE ASSESSEE I N INDIA, AND WHICH WAS DULY CERTIFIED AND PERMITTED B Y THE RBI AND ITS AUTHORISED DEALER, WAS WHAT HAD BEEN E ARNED BY THE ASSESSEE FROM SUCH TRANSACTIONS. GIVEN SUCH FACTS OF THE MATTER, I AM OF THE VIEW THAT THE ASSESSING OFF ICER WAS CLEARLY MISLED INTO TAKING THE VIEW THAT THE METHOD OF ACCOUNTING ADOPTED BY THE ASSESSEE HAD VIOLATED THE - 9 - PROVISIONS OF SEC. 145 OF THE I. T. ACT. CONSEQUENT LY, HE WAS NOT JUSTIFIED AT ALL IN REJECTING THE BOOK RESU LTS. HERE IT MAY BE VERY RELEVANT TO MENTION THAT THE ASSESSING OFFICER HIMSELF HAD NOTED IN THE ASSESSMENT ORDER THAT THE AMOUNTS DEDUCTED AS COMMISSION FROM THE SALE INVOICES WERE NEITHER RECEIVED BY THE ASSESSEE DURING THE YEAR, N OR WAS IT VERY GOING TO BE RECEIVED IN FUTURE. IF THIS WAS TH E VIEW OF THE ASSESSING OFFICER, THEN HE CONTRADICTED HIMSELF IN TAXING AMOUNTS WHICH HAD NOT BEEN RECEIVED AT ALL, NOR DID THE ASSESSEE HAVE ANY LEGAL RIGHT TO RECEIVE SUCH A MOUNTS. 7.5. IT HAS BEEN ARGUED BY THE AUTHORISED REPRESENT ATIVE THAT THE ASSESSEE SHOULD BE TAXED ONLY ON THE AMOUN TS WHICH HAD BEEN ACTUALLY RECEIVED AS EXPORT PROCEEDS , WHICH WERE DULY AUTHORISED AND CERTIFIED BY THE RBI . THIS BRINGS INTO FOCUS THE PRINCIPLE OF REAL INCOME AND ITS TAXABILITY OR OTHERWISE, AS ALSO THE PRINCIPLE OF D IVERSION BY OVERRIDING TITLE AND THIRDLY, THE APPLICATION OF INCOME. IN THE CASE OF CIT VS. SHIV PRAKASH JANAKRAJ ANDCO . P. LTD. (1996) 222 ITR 583, THE HON'BLE SUPREME COURT OBSERVED THAT THE CONCEPT OF REAL INCOME CANNOT BE EMPLOYED SO AS TO DEFEAT THE PROVISIONS OF THE ACT AND THE RULES. THE HON'BLE COURT THUS LAID DOWN THE FOLLOWI NG PRINCIPLES. 1 . IT IS THE INCOME WHICH HAS REALLY ACCRUED OR ARISEN TO THE ASSESSEE THAT IS TAXABLE. WHETHER THE INCOME HAS REALLY ACCRUED OR ARISEN TO THE ASSESSEE MUST B E JUDGED IN THE LIGHT OF THE REALITY OF THE SITUATION . 2. THE CONCEPT OF REAL INCOME WOULD APPLY WHERE THERE HAS BEEN A SURRENDER OF INCOME WHICH IN THEOR Y MAY HAVE ACCRUED BUT IN THE REALITY OF THE SITUATION, N O INCOME HAD RESULTED BECAUSE THE INCOME DID NOT REALLY ACCR UE. 3. WHERE A DEBT HAS BECOME BAD, DEDUCTION IN COMPLIANCE WITH THE PROVISIONS OF THE ACT SHOULD BE CLAIMED AND ALLOWED. - 10 - 4. WHERE THE ACT APPLIES, THE CONCEPT OF REAL INCOME SHOULD NOT BE SO READ AS TO DEFEAT THE PROVI SIONS OF THE ACT. 5. IF THERE IS ANY DIVERSION OF INCOME AT SOURCE UNDER ANY STATUTE OR BY OVERRIDING TITLE, THEN THER E IS NO INCOME TO THE ASSESSEE. 6. THE CONDUCT OF THE PARTIES IN TREATING UNDER ANY STATUTE PARTICULAR MANNER IS MATERIAL EVIDENCE OF THE FACT WHETHER INCOME HAS ACCRUED OR NOT. 7. MERE IMPROBABILITY OF RECOVERY, WHERE THE CONDUCT OF THE ASSESSEE IS UNEQUIVOCAL, CANNOT BE T REATED AS EVIDENCE OF THE FACT THAT INCOME HAS NOT RESULTE D OR ACCRUED TO THE ASSESSEE. AFTER DEBITING THE DEBTOR S ACCOUNT AND NOT REVERSING THAT ENTRY BUT TAKING T HE INTEREST MERELY IN SUSPENSE ACCOUNT CANNOT BE SUCH EVIDENCE TO SHOW THAT NO REAL INCOME HAS ACCRUED TO THE ASSESSEE OR BEEN TREATED AS SUCH BY THE ASSESSEE. 8. THE CONCEPT OF REAL INCOME IS CERTAINLY APPLICABLE IN JUDGING WHETHER THERE HAS BEEN INCOME OR NOT BUT, IN EVERY CASE, IT MUST BE APPLIED WITH CAR E AND WITHIN WELL-RECOGNISED LIMITS. 7.6. TAKING THE ABOVE DISCUSSION INTO CONSIDERATION IT IS HELD THAT THERE WAS SIMPLY NO BASIS FOR THE ASSESSI NG OFFICER TO TREAT THE AMOUNTS DEDUCTED AS COMMISSION FROM THE EXPORT INVOICES, AS INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. THE ASSESSING OFFICER IS THERE FORE, DIRECTED TO DELETE THE ADDITION OF THE SUM OF RS.42 ,07,936. 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTE D THE ORDER OF THE LEARNED ASSESSING OFFICER. 9. NOTICE OF HEARING WAS SENT TO THE ASSESSEE ON EA RLIER THREE OCCASIONS TO THE RESPONDENT ASSESSEE WHEN NONE APPE ARED ON THE DATE OF THE HEARING. THEREFORE, THE NOTICE WAS SER VED THROUGH - 11 - LEARNED DEPARTMENTAL REPRESENTATIVE. THE LEARNED DE PARTMENTAL REPRESENTATIVE HAS FILED REPORT OF THE SERVICE OF N OTICE ON THE RESPONDENT ASSESSEE WHICH IS PLACED ON RECORD. NONE IS PRESENT ON BEHALF OF THE ASSESSEE WHEN THE CASE WAS CALLED FOR HEARING AND NEITHER ANY ADJOURNMENT IS FILED. IN THE CIRCUMSTAN CES, THE APPEAL WAS HEARD EX PARTE QUA THE RESPONDENT ASSESSEE. 10. WE HAVE HEARD THE LEARNED D.R. AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE MAIN PLANK OF THE ARGUMENT ADVANCED BY THE LEARNED A.R. BEFORE THE LEARNED CIT (A) WAS THAT THE COMMISSION PAID BY THE ASSESSEE WAS IN THE NATURE O F TRADITIONAL DISCOUNT EXTENDED TO FOREIGN BUYERS AND THE ASSESSE E HAD RECEIVED ONLY THE NET PROCEEDS AND THEREFORE THERE COULD NOT BE ANY CONCEPT OF INCOME AGAINST THE AMOUNT WHICH WAS NEVER RECEIVED BY THE ASSESSEE OR ACCRUED TO THE ASSESSEE . IN SUPPORT OF HIS CONTENTION, HE RELIED UPON THE DECISION OF HON' BLE KERALA HIGH COURT IN THE CASE OF DEPUTY COMMISSIONER OF AG RICULTURAL INCOME TAX & SALES TAX (LAW) VS. TRAVANCORE RAYONS LTD. (1977) 1977 CTR (KER) 264, WHEREIN IT WAS HELD AS U NDER:- THE COMPANY WAS ALLOWING A UNIFORM PERCENTAGE OF DEDUCTION TO THE BUYERS BY WAY OF COMMISSION AN D THE INVOICES SHOW THAT AFTER MENTIONED THE GROSS PRICE OF THE GOODS CALCULATED AT THE RATES SPECIFIED THEREIN THE AMOUNT OF COMMISSION IS DEDUCTED AND THE RESULTANT BALANCE IS SHOWN AS THE NOT PRICE ACTUALLY PAYABLE BY THE BUYE RS. IN THE CIRCUMSTANCES SUCH A DEDUCTION ALLOWED TO THE B UYERS BY A MANUFACTURER OR A WHOLESALES, BY WHATEVER NAME IT MAY BE DESCRIBED, IS CLEARLY IN THE NATURE OF A TRA DE DISCOUNT. WHERE A TRADE DISCOUNT HAS BEEN BONA FIDE GRANTED T HE CONSIDERATION FOR THE SALE IS ONLY THE AMOUNT WHICH IS ACTUALLY PAD OR PAYABLE AFTER THE DISCOUNT IS DEDUC TED AND - 12 - THAT, HENCE, AMOUNTS, ALLOWED BY THE ASSESSEE TO TH E BUYERS BY WAY OF TRADE COMMISSION OR DISCOUNT WERE NOT A L IABLE TO BE ADDED TO OR INCLUDED. IN THE TURN-OVER FOR TH E PURPOSES OF ASSESSMENT TO CST. ACCORDINGLY IT IS HELD THAT THE TRIBUNAL WAS RIGHT IN DIRECTING THAT THE AMOUNT OF RS. 2,60,327.72 REPRES ENTING COMMISSIONS DEDUCTED BY THE ASSESSEE N THE VARIOUS INVOICES OF SALES SHOULD BE EXCLUDED FROM THE TAXAB LE TURNOVER OF THE ASSESSEE-COMPANY FOR THE YEAR 1961- 62. 11. HE ALSO RELIED ON THE DECISION OF COLOUR CHEM L TD. VS. CIT (1997) 225 ITR 164 (BOM) WHEREIN IT WAS HELD TH AT RELATIONSHIP BETWEEN THE ASSESSEE AND THE FOREIGN B UYER WAS CLEARLY THAT OF VENDOR AND BUYER AND THE PAYMENT OF COMMISSION HAD THE EFFECT OF REDUCING THE SALE PRICE OF GOODS SUPPLIED TO THE BUYER BY THE ASSESSEE. 12. HE FURTHER RELIED ON THE DECISION OF THE HON'BL E SUPREME COURT IN THE CASE OF J.B.BODA & CO. PVT. LTD. VS. C BDT (1997 ) 223 ITR 271 (SC) WHEREIN IT WAS HELD THAT ASSESSEE ACTING AS AGENT OF FOREIGN REINSURER, COLLECTING PREMIA FROM THE CEDING INSURANCE COMPANY IN INDIA AND REMITTING THE SAME T O THE FOREIGN INSURER IN FOREIGN EXCHANGE, WITH THE PERMISSION OF THE RBI, AFTER RETAINING ITS BROKERAGE IN FOREIGN EXCHANGE; THE BR OKERAGE INCOME RETAINED BY ASSESSEE IS RECEIPT OF INCOME IN CONVERTIBLE FOREIGN EXCHANGE QUALIFYING FOR DEDUCTION UNDER S. 80-O. 13. ON THE OTHER HAND, THE MAIN THRUST MADE BY THE LEARNED ASSESSING OFFICER IS THAT EVEN THOUGH THE ASSESSEE HAS RECORDED - 13 - THE ONLY NET RECEIPTS AS ITS EXPORT SALES, THE ASSE SSEE HAS CLAIMED THE BENEFITS OF IMPORT ENTITLEMENT LIKE DEPB ON THE AMOUNT OF GROSS VALUE OF INVOICE WHICH SHOWS THAT AS FAR AS T HE ASSESSEE IS CONCERNED, THE EXPORT SALE PROCEEDS IS REPRESENTED BY THE GROSS INVOICE VALUE AND NOT BY THE NET VALUE AS CLAIMED B Y THE ASSESSEE. 14. AT THIS JUNCTURE, IT IS NECESSARY FOR US TO STA TE THAT THE ASSESSEE HAS ACCOUNTED THE EXPORT SALES TURNOVER AT THE NET FIGURE AND CLAIMED DEPB BENEFITS ON THE GROSS AMOUNTS IN A CCORDANCE WITH THE GUIDELINES ISSUED BY THE RBI IN THE LIGHT OF THE EXPORT IMPORT POLICY OF THE GOVERNMENT OF INDIA. THE ASSE SSEE HAS GIVEN THE DEDUCTION OF DISCOUNT TO THE FOREIGN BUYE R BY WAY OF COMMISSION BEING REDUCED DIRECTLY IN THE SALES INVO ICE IN THE LIGHT OF THE REGULATIONS AND GUIDELINES OF THE RBI. THIS METHOD OF INVOICE AND GIVING DISCOUNT/COMMISSION AND RECEI VING THE FOREIGN EXCHANGE NET OF INVOICE ARE PERMISSIBLE UND ER THE LAW RELATING TO THE EXPORT AND FOREIGN EXCHANGE MATTERS . THE EXPORT IMPORT POLICY AND THE RBI REGULATIONS APPROVED THIS METHOD. THE EXPORT IMPORT POLICY AND THE RBI REGULATIONS FU RTHER ALLOW AN ASSESSEE TO CLAIM BENEFITS OF IMPORT ENTITLEMENT LIKE DEPB ON THE GROSS AMOUNT OF INVOICE VALUE INSTEAD OF THE NE T AMOUNT OF INVOICE VALUE. THEREFORE, THE BENEFIT ACCRUES TO T HE ASSESSEE IN RESPECT OF DEPB ON THE DIFFERENTIAL INVOICE AMOUNT WHICH WAS NEVER RECEIVED BY THE ASSESSEE IN INDIA IN CONVERTI BLE FOREIGN EXCHANGE AS AN EXPORT PRIVILEGE ENJOYED BY THE ASSE SSEE UNDER THE RELEVANT RULES AND REGULATIONS. THEREFORE, THI S DIFFERENCE REFLECTED IN THE NET INVOICE VALUE AND THE GROSS IN VOICE VALUE FOR - 14 - THE PURPOSE OF ACCOUNTING OF EXPORT SALE TURNOVER A ND CLAIMING DEPB BENEFITS CANNOT BE TAKEN AS A GROUND TO REJECT THE CONTENTIONS OF THE ASSESSEE. THEREFORE, THE ISSUE HAS TO BE EXAMINED DEVOID OF THE ABOVE TECHNICALITY POINTED O UT BY THE LEARNED COMMISSIONER OF INCOME-TAX. 15. THERE IS NO DISPUTE REGARDING THE FACT THAT THE ASSESSEE HAS GIVEN COMMISSION/DISCOUNT IN THE EXPORT INVOICES IT SELF IN FAVOUR OF THE FOREIGN BUYER. THE FOREIGN BUYER HAS STATED THAT THIS DISCOUNT/COMMISSION WOULD BE DISTRIBUTED BY HIM TO THE INTENDING AGENTS ABROAD. THEY HAVE STATED THAT THE COMMISSIONS ARE TO BE PAID BY THEM DIRECTLY TO THE AGENTS IN TH E COUNTRIES OF IMPORT. IT IS ALSO A FACT ON RECORD THAT THE ASSES SEE HAS RECEIVED THE NET AMOUNT ONLY AS EXPORT PROCEEDS BY WAY OF CO NVERTIBLE FOREIGN EXCHANGE. ALL THESE MATTERS HAVE BEEN CERT IFIED BY THE BANKERS OF THE ASSESSEE. ALL THE MATTERS ARE WELL WITHIN THE LAW REGULATED BY THE RBI FOR THE PURPOSE OF EXPORT OF G OODS OUTSIDE INDIA. IN SUCH CIRCUMSTANCES, THE SIMPLE FACT THAT EMERGES OUT OF THE MAZE OF ARGUMENTS IS THAT AS FAR AS THE ASSESSE E IS CONCERNED, HIS EXPORT SALES TURNOVER IS THE NET AMOUNT OF THE EXPORT INVOICE ISSUED BY HIM. IT IS NOT PROPER TO TREAT THE GROSS INVOICE AMOUNT AS THE EXPORT SALES TURNOVER OF THE ASSESSEE. 16. IN FACT, IN THE SITUATION OF THE CASE, AS STATE D IN THE ABOVE PARAGRAPH, IT IS TO BE SEEN THAT THE EXPORT SALE PR OCEEDS RECEIVED BY THE ASSESSEE WAS NET AMOUNT ALONE AND NOT THE GR OSS AMOUNT. IT IS ALSO TO BE SEEN THAT THE FOREIGN BUYER IS NOT BOUND TO PAY TO THE ASSESSEE THE AMOUNT COVERED BY THE COMMISSION O R DISCOUNT - 15 - AT ANY FUTURE DATE. THEREFORE, THE RIGHT/CLAIM OF THE ASSESSEE IN RESPECT OF THE EXPORT SALES WAS TO RECEIVE ONLY THE NET INVOICE AMOUNT AND NOTHING MORE. THEREFORE, THERE IS NOTHI NG LEFT OVER BY WAY OF BALANCE TO BE TREATED AS INCOME ACCRUING OR ARISING TO THE ASSESSEE OUTSIDE INDIA BY VIRTUE OF THE IMPUGNE D EXPORT SALES. THE ENTIRE INCOME ATTRIBUTABLE TO THE EXPORT SALES WERE ALREADY RECEIVED BY THE ASSESSEE IN INDIA IN THE FORM OF CO NVERTIBLE FOREIGN EXCHANGE. THIS POSITION IS PROVED BY THE C ERTIFICATES ISSUED BY THE BANKERS AS WELL AS LETTERS OF CREDIT OPENED BY THE FOREIGN BUYERS. WHEN THE ASSESSEE HAS RECEIVED ON LY THE NET PROCEEDS AS PER THE INVOICE, THERE IS NOTHING FURTH ER LEFT OVER TO BE TREATED AS INCOME RECEIVED OR TO BE RECEIVED OR ACCRUED OR DEEMED TO BE ACCRUED OR ARISING IN INDIA OR OUTSIDE INDIA. THEREFORE, THE RELIANCE PLACED BY THE LOWER AUTHORI TIES ON THE SECTION 5 OF THE INCOME TAX ACT IS RATHER MISLEADIN G. 17. AS THE ASSESSEE HAS NOT PAID TO THE FOREIGN BUY ERS ANY AMOUNT BY WAY OF COMMISSION, BUT IT WAS ONLY ADJUST MENT THROUGH THE EXPORT INVOICES BY WAY OF COMMISSION/DI SCOUNT, SECTION 194H ALSO HAD NO ROLE TO PLAY. THEREFORE, WE FIND THAT ALL THE DISCUSSIONS MADE BY THE LOWER AUTHORITIES T O MAKE ADDITIONS OF THE COMMISSION AMOUNT WERE BASED ON HY POTHESIS AND NOT ON ANY FACTS PROVED. WHEN THE ASSESSEE HAD NO ADDITIONAL AMOUNT TO BE RECEIVED FROM THE FOREIGN B UYERS, NO QUESTION OF ADDITIONAL INCOME ARISES. THE INCOME O F THE ASSESSEE IS FULLY EMBEDDED IN THE NET SALE PROCEEDS RECEIVED AND ACCOUNTED BY HIM. WHEN THE INCOME ITSELF IS NOT GE NERATED, THERE IS NO QUESTION OF SUCH INCOME BECOMING ACCRUE D OR DUE. - 16 - WHEN THERE IS NOTHING LEFT OVER TO BE FURTHER RECEI VED BY THE ASSESSEE, THERE IS NO QUESTION OF ANY INCOME ARISIN G IN THE HANDS OF THE ASSESSEE, ATTRIBUTABLE TO THE QUANTUM OF COM MISSION RECORDED IN THE INVOICE. THEREFORE, WE FIND THAT T HE ENTIRE DISCUSSIONS, BUT WELL MADE BY THE LOWER AUTHORITIES , HAVE BEEN MADE UNFORTUNATELY IN A WRONG DIRECTION. 18. WHEN THE FACTUM OF ACTUAL RECEIPT OF SALE PROCEEDS TO THE EXTENT OF NET INVOICE AMOUNT IS ESTABLISHED BEYOND ANY DOUBT, THERE IS NO JUSTIFICATION IN OVERLOOKING UPON THOSE SPEAKING FACTS ON THE TECHNICAL GROUND THAT THE ASSESSEE HAS CLAIM ED THE DEPB BENEFIT ON THE GROSS AMOUNT OF THE INVOICE. THE DE PB CLAIM WAS MADE BY THE ASSESSEE ON THE BASIS OF PERMISSION GRANTED BY THE RBI AND THAT HAS NOTHING TO DO WITH THE ACTUAL AMOUNT OF EXPORT SALES PROCEEDS RECEIVED BY THE ASSESSEE IN T HE FORM OF CONVERTIBLE FOREIGN EXCHANGE. 19. THEREFORE, IT IS QUITE OBVIOUS WITHOUT MUCH DIS CUSSION AND DELIBERATION THAT THE REVENUE HAS NO CASE TO HOLD T HE ASSESSEE RESPONSIBLE FOR AN ADDITIONAL INCOME OF RS.42,07,93 6/-. THE SAID ADDITION WAS RIGHTLY DELETED BY THE C.I.T.(A). OUR ABOVE VIEW ALSO FINDS SUPPORT FROM THE DECISION OF THIS TRIBUN AL IN THE CASE OF SHRI SANJAY JAIN VS. DCIT IN ITA NO.1533/AHD/200 8 FOR ASSESSMENT YEAR 2004-05 ORDER DATED 16.12.2009. THE REFORE, THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 20. GROUND NO.1 OF THE CROSS OBJECTION IS AS FOLLO WS:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IS ERRED IN UPHOLDING THE WORKING DONE BY - 17 - LEARNED ASSESSING OFFICER IN RESPECT OF DEDUCTION U NDER SECTION 80HHC AT RS. NIL BY WRONGLY INTERPRETING T HE PROVISIONS OF AMENDED LAW. APPELLANT PRAYS FOR ALLO WING CORRECT DEDUCTION UNDER SECTION 80HHC AS PER AMEND ED PROVISIONS OF LAW. 21. WE FIND FROM THE ORDER OF THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS) THAT NO SUCH GROUND OF APPEAL WAS RAISED AND ARGUED BEFORE LEARNED COMMISSIONER OF INCOME TA X (APPEALS). THEREFORE, AS THIS GROUND OF APPEAL DOE S NOT ARISE OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), THE SAME IS DISMISSED. 22. GROUND NO.2 OF THE CROSS OBJECTION IS AS FOLLOW S :- 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN UPHOLDING THE INTEREST CHARGED U NDER SECTION 234B OF THE ACT WITH REFERENCE TO THE ADDITIONS/DISALLOWANCES. 23. WE FIND THAT THE CIT(A) HAS HELD THAT THE ADVAN CE TAX PAID WAS LESS THAN 90% OF THE TAX ASSESSED AND THEREFORE , THE ASSESSEE WAS LIABLE TO PAY INTEREST UNDER THE SAID SECTION. NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE ASSESSEE TO CONTROVER T THE FINDING OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). WE HOLD THAT THE CHARGING OF INTEREST IS CONSEQUENTIAL AND ACCORDINGLY THIS GROUND OF CROSS OBJECTION OF THE ASSESSEE. 24. IN THE RESULT, THE APPEAL OF THE REVENUE AS WEL L AS THE CROSS OBJECTION OF THE ASSESSEE BOTH ARE DISMISSED. - 18 - ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON THIS 22 ND DAY OF OCTOBER, 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEM BER AHMEDABAD: ON THIS 22 ND DAY OF OCTOBER, 2010 COMPILED AND COMPARED BY: PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-II, SURAT. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 20-10-2010 -------------- ----- 2. DRAFT PLACED BEFORE AUTHORITY 20-10-2010 ----- -------------- 3. DRAFT PROPOSED & PLACED 20-10-2010 ----------- -------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 21-10-2010 ---------- --------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 22-10-2010 -------- ------------ 6. KEPT FOR PRONOUNCEMENT ON 22-10-2010 --------- ----------- 7. FILE SENT TO THE BENCH CLERK 22-10-2010 ------ -------------- 8. DATE ON WHICH FILE GOES TO THE --------------- -------------------- 9. DATE OF DISPATCH OF ORDER --------------- ---- -----------------