EMBLEM FASHION WEAR EX PORTS P.LTD, MUMBAI V. ITO 4(1)(4), NAGPUR

ITA 2101/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100891 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 01-05-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 29-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Keywords: Search and seizure; Question of law; Wrong claim; Competent authority; Reassessment proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI JOGINDER SINGH , JM AND SHRI SANJAY ARORA, AM ./ I. T.A. NO. 2101/MUM/2012 ( / ASSESSMENT YEAR: 2003 - 04 ) EMBLEM FASHION WEAR EXPORTS PVT. LTD. 605, KARIM MANZIL, 2 ND FLOOR, J.S.S. ROAD, CHIRA BAZAR, MUMBAI - 400 002 / VS. INCOME TAX OFFICER - 4(1)(4), MUMBAI ./ ./ P AN/GIR NO. AAACE 4832 H ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI NITESH JOSHI / RESPONDENT BY : SHRI LOVE KUMAR / DATE OF HEARING : 1 0 .0 6 .2015 / DATE OF PRONOUNCEMENT : 08 .09 .2015 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 8 , MUMBAI (CIT(A) FOR SHORT) DATED 20.02.2012 , CONFIRMING THE L EVY OF PENALTY U/S.271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2003 - 04 VIDE ORDER DATED 28.03.2011 . 2. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR ON 01.12. 2013 AT NIL INCOME, CLAIMING DEDUCTION U/S. 80 - HHC AT 2 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO RS.13,78,338/ - , RESTRICTING IT , THOUGH, TO THE AMOUNT OF INCOME AVAILABLE PRIOR TO SUCH DEDUCTION, I.E., RS.6,00,162/ - . EXAMINING THE SAME IN THE VERIFICATION PROCEEDINGS UNDER THE ACT, THE ASSESSEES C LAIM WAS CONSIDERED AS DEFICIENT BY THE ASSESSING OFFICER (A.O.) ON TWO SCORES: A) T HE ASSESSEE COULD NOT SUPPORT ITS CLAIM OF EXPORT IN RELATION TO TWO INVOICES ISSUED TO M/S. ANDREWS SPORTS CLUB INC. USA . FOR AN AGGREGATE OF RS.24,21,160/ - . THE SAME, IN FAC T, REPRESENTED EXPORT OF ANOTHER FIRM, M/S. FIRST TRADING HOUSE, CHENNAI/ MUMBAI ? , WHICH RECEIVED THE EXPORT PROCEEDS AS WELL. THE ASSESSEE HAD ONLY ACTED AS AN IN BETWEEN OR INTER MEDIARY FOR THE PURPOSE OF AVAILING EXPORT BENEFIT S FROM THE GOVERNMENT O F INDIA; AND B) N ON RECEIPT OF EXPORT PROCEEDS (I.E., IN CONVERTIBLE FOREIGN EXCHANGE) WITHIN SIX MONTHS FROM THE END OF THE RELEVANT PREVIOUS YEAR. NO INSTRUCTION FROM RESERVE BANK OF INDIA (RBI) HAD IN FACT BEEN APPLIED FOR . THE ASSESSEE HAVING FOUND FAV OUR WITH THE TRIBUNAL, I.E., IN THE QUANTUM PROCEEDINGS, ON THE FIRST ISSUE, THE ONLY THING THAT SURVIVES FOR THE PURPOSE OF LEVY OF PENALTY U/S.271(1)(C) OF THE ACT IS THE PENALTY QUA THE DISALLOWANCE ON THE SECOND ISSUE. 3. BEFORE US, THE ASSESSEES CA SE WAS TWO - FOLD : A) T HAT, ON FACTS, POST F A CT O APPROVAL HAD, IN FACT, BEEN OBTAINED FROM RBI VIDE ITS LETTER DATED 20.06.2008, SO THAT IT COULD NOT BE SAID THAT NO APPROVAL, ALBEIT SUBS EQUENT , HAD BEEN OBTAINED; AND B) T HAT THE ORDER BY THE TRIBUNAL DISPOSING T HE ASSESSEES APPEAL ON QUANTUM (IN ITA NO. 2428/MUM/2010 DATED 12.08.2011 /PB PGS. 7 - 13 ) IS THE SUBJECT MATTER OF APPEAL BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT, HAVING BEEN SINCE ADMITTED BY IT. ACCORDINGLY, FOLLOWING THE DECISION IN THE CASE OF CIT VS. NAYAN BUILDERS & DEVELOPERS (IN ITA NO. 415 OF 2012 DATED 08.07.2014/PB PGS. 3 & 4), NO PENALTY U/S. 271(1)(C) COULD BE LEVIED. 4. WE HAVE HEARD THE PARTIES , AND PERUSED THE MATERIAL ON RECORD. 4.1 WE SHALL ADDRESS THE TWO ISSUES IN SERIATIM. AS R EGARDS THE FIRST ISSUE, CLEARLY, IF APPROVAL HAS BEEN SOUGHT AND OBTAINED, EVEN I F SUBSEQUENTLY, IT MAY NOT BE A CASE OF LEVY OF PENALTY IN - AS - MUCH AS RECEIPT OF EXPORT PROCEEDS, WHICH IS TO BE FROM A PARTY LOCATED OUTSIDE INDIA, IS NOT ALWAYS WITHIN THE A SSESSEES CONTR OL . AS SUCH, WHERE 3 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO APPROVAL STANDS SOUGHT, ALL THAT THE ASSESSEE COULD DO UNDER THE CIRCUMSTANCES , EXPLAINING ITS CASE TO THE COMPETENT AUTHORITY ( PER THE APPLICABLE FORMS), FOLLOWING THE PROCEDURE PRESCRIBED IN ITS RESPECT, THE MATTER SHOU LD BE VIEWED LIBERALLY IN - AS - MUCH AS THAT IT NEEDS TO BE BORNE IN MIND THAT THESE ARE PENALTY PROCEEDINGS, SO THAT A BONA FIDE CONDUCT CO U PLED WITH A PROPER DISCLOSURE OF ALL MATERIAL FACTS, I.E., RELEVANT TO ITS CLAIM, WOULD SAVE PENALTY . WHAT WOULD IN FA CT BE MORE RELEVANT IN THESE PROCEEDINGS, AS DISTINCT FROM THE QUANTUM PROCEEDINGS, WHICH CLEARLY SUBJECT THE DEDUCTION TO GRANT OF THE REQUISITE APPROVAL, IS THE BASIS FOR MAKING THE CLAIM, SO THAT A REASONABLE BASIS AND A BONA FIDE CONDUCT SHOULD SUFFICE . HOWEVER, THE FACTS SPEAK OTHERWISE, WHICH , AS IT TRANSPIRES, IS ALSO THE REASON FOR THE CONFIRMATION OF THE DISALLOWANCE (TO THAT EXTENT) BY THE TRIBUNAL IN THE FIRST PLACE. THERE IS, FIRSTLY, NOTHING ON RECORD TO SHOW, OR EVEN A CON TENTION TO THAT EFF ECT, THAT AN APPLICATION FOR EXTENSION OF TIME FOR RECEIPT OF SALE PROCEEDS OF EXPORT WAS SOUGHT FROM RBI, I.E., THE COMPETENT AUTHORITY. WHERE , THEN , IS THE QUESTION OF IT BEING GRANTED, EITHER WITHIN TIME OR EVEN BELATEDLY ? WHAT THE ASSESSEE DESCRIBES AS A POST FACTO APPROVAL IS IN FACT AND, IN EFFECT, A COMM UNICATION FROM THE RBI THAT THE FACT OF RECEIPT OF EXPORT PROCEEDS O F FIVE SHIPPING BILLS, AS INTIMATED BY THE ASSESSEE THERETO VIDE ITS LETTER DATED 18.06.2008, HAS BEEN NOTED IN ITS RECORDS, I.E., IT HA D NOTED THIS FACT. NOTHING MORE , AND , NOTHING LESS. TH I S FACT STANDS NOTED BY THE TRIBUNAL, REPRODUCING THE CONTENTS OF THE RBIS LETTER TO THE ASSESSEE AS WELL AS TO ANOTHER EXPORTER, AT PARAS 11 AND 12 OF ITS ORDER RESPECTIVELY, EMPHASIZING THE DIF FERENCE IN THE CLEAR LANGUAGE OF THE TWO; THE L A TTER EXPLICITLY P ROVIDING A POST FACTO APPROVAL FOR EXTENSION OF TIME FOR THE RECEIPT OF EXPORT PROCEEDS. TO STATE DIFFERENTLY, NOT ONLY IS THE LETTER TO THE ASSESSEE PATENTLY CLEAR IN ITS COMMUNICATION, THE DIFFERENCE IN THE LANGUAGE OF THE TWO LETTERS IS SO STARK AND OBVIOUS THAT IT IS DIFFICULT, ALMOST ABSURD , TO SUGGEST OR CONTEN D OF THE ASSESSEES LETTER AS CONVEYING A POST FACTO APPROVAL, WHICH THE OTHER LETTER, CITED AS AN EXAMPLE, CLEARLY GRANTS. THE REFERENCE TO THE WORDS POST FACTO APPROVAL IN ITS LETTER , I.E., WHILE STATING ITS SUBJECT, IS , AGAIN, FIRSTLY OF NO 4 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO CONSEQUENCE IN - AS - MUCH AS THE LETTER HAS TO BE READ WITH REFERENCE TO ITS CONTENTS AND, TWO, IS ONLY AS THE ASSESSEES LETTER, WHICH STAN DS RESPONDED TO, AS APPARENT, MEN TION S THE SAME AS THE CAPTIONED SUBJECT. THE SAME, IN ANY CASE, IS OF LITTLE MOMENT AS NO EXTENSION HAS BEEN SOUGHT, SO THAT THERE IS NO QUESTION OF IT BEING GRANTED . IN FACT, THE TRIBUNAL HAVING FOUND T HUS, I.E., T HAT NO POST FACTO APPROVAL HAD BEEN ALLOWED TO THE ASSESSEE, WHICH GETS ESTABLISHED AS FACT B Y THE TRIBUNAL , THE FINAL FACT FINDING AUTHORITY, WE ARE UNABLE TO SEE AS TO HOW ANY SUCH CONTENTION COULD AT ALL BE RAISED IN PENALTY PROCEEDINGS . THIS IS AS THE SAID F INDING , WHICH IS ONE OF FACT, AND EVEN OTHERWISE NOT CHALLENGED BEFORE THE HONBLE HIGH COURT, HAS ATT AI N ED FINALITY . R EPEATING THE SAME ARGUMENT IN THE PENALTY PROCEEDINGS , W ITHOUT BRINING ANY FURTHER MATERIAL OR FACT /S OR C IRCUMSTANCES O N RECORD WOULD TH EREFORE BE TO NO EFFECT OR PURPOSE. WHY, NO APPROVAL , AS AFORE - NOTED, STANDS SOUGHT , SO THAT THERE IS NO BASIS OR SCOPE FOR THE ASSESSEE TO EVEN CONSIDER ITSELF AS BEING ENTITLED FOR APPROVAL. THE ASSESSEE , BY MAKING A CLAIM OF HAVING BEEN ALLOWED EXTENDED TIME, OR AN APPROVAL UP TO THE TIME THE EXPORT PROCEEDS HAVE BEEN RECEIVED, FROM THE COMPETENT AUTHORITY, THUS, MAKES A FALSE CLAIM, I.E., MISLEADS . THE ASSESSEES ARGUMENT , CONSEQUENTLY , FAILS. 4.2 COMING TO THE ASSESSEES CASE ON MERITS, I.E., ON THE IMPOSITION OF PENALTY, FOR WHICH THE MATTER WAS SPECIFICALLY POSTED FOR HEARING IN - AS - MUCH AS NO PLEADINGS QUA THE SAME WERE MADE DURING HEARING IN THE FIRST INSTANCE. WE, UPON GIVING A CAREFUL CONSIDERATION TO THE MATTER, FIND NO MERIT IN THE ASSESSEES C ASE, GIV E N THE FACT THAT THE ASSESSEE DID NOT OBTAIN APPROVAL, EITHER PRE OR POST FACTO, FROM THE COMPETENT AUTHORITY, AS REQUIRED BY LAW. AS AFORE - STATED, THE ASSESSEE DID NOT APPL Y FOR ANY EXTENSION OF TIME . THE PAYMENT IN EACH CASE STANDS RECEIVED MUCH AFTER THE LAPSE OF THE SIX MONTH PERIOD (30.09.2003), I.E., FROM A S LOW AS TWO YE ARS FROM THE DATE OF RAISING THE BILLS, TO A MAXIMUM OF SIX YEARS , THE LATEST BEING RECEIVED ONLY ON 13.06.2008 IN RESPECT OF ONE OF THE BILLS (DATED 21.06.2002) . NO EXPLANAT ION FOR THE INORDINATE DELAY HAS BEEN FURNISHED BY THE ASSESSEE . FURTHER, THE PAYMENTS HAVE NOT 5 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO BEEN RECEIVED BY THE DATE OF THE FILING THE RETURN, AND WHICH DOES NOT STATE THE FACT THAT NO APPROVAL STANDS RECEIVED OR IS EVEN AWAITED. O N THE CONTRARY, THE ASSESSEE, I N CLEAR CONTRAVENTION OF LAW, CLAIM S DEDUCTION U/S.80 - HHC BY CONSIDERING IT AS A PART OF THE EXPORT TURNOVER, WORKING OUT THE SAME AT A STILL HIGH ER FIGURE OF RS.13,94,709/ - . T HIS, DESPITE THE FACT THAT THE REQUISITE FORM CLEARLY PROVIDES FOR T HE STATEMENT OF THE TOTAL AND ADJUSTED EXPORT TURNOVER , BOTH DEFINED . WHAT, THEN, IS THE BASIS OF THE ASSESSEES CLAIM FOR DEDUCTION U/S.80HHC ON THAT PART OF ITS EXPORTS ? WE OBSERVE NO EXPLANATION BY THE ASSESSEE AT ANY STAGE. NONE COULD IN FACT IT BE , GIVEN THE CLEAR PROVISION OF LAW (SECTION 80HHC(2)(A)), WHICH CLEARLY SPEAKS OF ONLY THAT PART OF THE EXPORT TURNOVER AS BEING ELIGIBLE FOR BEING CONSIDERED AS SO, I.E., FOR THE PURPOSE OF THIS PROVISION, WHICH STANDS RECEIVED WITHIN SIX MONTHS OF THE EX PIRY OF THE RELEVANT YEAR OR WITHIN THE EXTENDED TIME AS ALLOWED BY THE COMPETENT AUTHORITY . AS NOBODY CAN BE PRESUMED TO BE BESTOWED WITH PRESCIENCE SO AS TO KNOW IN ADVANCE IF THE PAYMENT, NOT RECEIVED BY THE DATE OF FILING THE RETURN OF INCOME, SHALL BE RECEIVED IN FUTURE AND WHEN, OR NOT, THE LAW PRESCRIBES A PROCEDURE FOR CLAIMING DEDUCTION IN ITS RESPECT IN CASES OF DELAY IN PAYMENT. THAT IS, THE CLAIM FOR DEDUCTION IS MADE CONDITIONAL TO THE ALLOWANCE OF THE EXTENDED TIME FOR RECEIPT. IT MAY BE THA T THE ASSESSEE DELAYS S EEKING THE EXTENSION OF TIME , I.E., BY THE EXPIRY OF THE SIX MONTH PERIOD, BUT SURELY UNLESS THE SAME HAS BEEN OBTAINED, THERE IS NO BASIS TO MAKE A CLAIM FOR DEDUCTION. IN THE INSTANT CASE, THE APPROVAL HAVING NOT BEEN SOUGHT, THERE IS NO BASIS TO EVEN EXPECT AN APPROVAL A CONDITION PRECEDENT, MUCH LESS HAVING RECEIVED IT BY THE DATE OF FILING THE RETURN, WHEREBY THE ASSESSEE LODGES THE CLAIM FOR DEDUCTION. IT IS THE RETURN AS FURNISHED , AND THE FACTS, AS WELL AS LAW, AS OBTAINING AT THE RELEVANT TIME, T HAT IS RELEVANT FOR THE PURPOSE OF IMPOSITION OF PENALTY ( R EFER : CIT V. ONKAR SARAN & SONS [1992] 19 5 ITR 1 (SC) ). AS SUCH, AS WOULD BE APPARENT, EVEN THE QUESTION OF LAW AS RAISED BY THE ASSESSEE BEFORE THE HONBLE HIGH COURT, MAY N OT CAPTURE THE CONTROVERSY ARISING IN THE INSTANT CASE, I.E., THE ABSENCE OF ANY FACTUAL BASIS FOR THE ASSESSEE TO HAVE MADE THE CLAIM . IN 6 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO FACT, EVEN AS OBSERVED DURING HEARING, THE LETTER FROM RBI DATED 20.06.2008, DESCRIBED AS POST FACTO APPROVAL, IS ITSELF ONLY RECEIVED MUCH AFTER THE COMPLETION OF THE ASSESSMENT ON 14/2/2006 . AS EXPLA I N ED BY THE APEX COURT TIME AND AGAIN, IT ALL DEPENDS ON THE RETURN OF INCOME (REFER: UNION OF INDIA V. DHARMENDRA TEXTILE PROCESSORS [2008] 306 ITR 277 (SC) ) . THE ASSES SEES CASE IS FULL OF SPECIOUS AND UNSUBSTANTIATED PLEA S , DE HORS THE FACTS OF THE CASE AND THE CLEAR LAW IN THE MATTER . NO W ONDER NO ARGUMENT QUA THE MERITS OF THE DISALLOWANCE E FFECTED BY THE A.O. AS WELL AS THE ASSESSEES EXPLANATION QUA THE SAME, W AS R AISED DURING HEARING IN THE FIRST INSTANCE . TO THE EXTENT THE ASSESSEE HAS CLAIMED THE IMPUGNED TURNOVER AS EXPORT TURNOVER, THERE IS FURNISHING OF INACCURATE PARTICULARS OF INCOME , AND TO THE EXTENT THE ASSESSEE HAS NOT EXPLAINED THE SAME THE LAW IN THE MATTER BEING CLEAR; NO EXTENSION HAVING BEEN APPLIED FOR, MUCH LESS ALLOWED , EVEN SUBSEQUENT TO ASSESSMENT OR TILL THE TIME OF LEVY OF PENALTY, THE ASSESSEE HAS NO EXPLANATION FOR THE SAID TURNOVER AS QUALIFYING AS EXPORT TURNOVER AND, THEREFORE, THERE IS DEEMED CONCEALMENT OF PARTICULARS OF INCOME IN TERMS OF E XPLANATION 1 TO SECTION 271(1)(C). THIS DECIDES THE ASSESSEES GD. 1, AGAINST IT, WHILE THE SOLE OTHER GD. 2 PER FORM 36 WAS NOT PRESSED DURING HEARING. 4.3 WE NEXT CON SIDER THE SECOND ISSUE RAISE D BY THE ASSESSEE LISTED AT PARA 3(B) (SUPRA), PRESUMABLY QUA ITS G ROUND N O. 1, GENERALLY WORDED, ASSAILING THE IMPUGNED ORDER ON THE GROUND THAT THE LD. CIT(A) HAD ERRED IN LAW AND ON FACTS IN CONFIRMING THE PENALTY OF LEVY U/S.271(1)(C) OF THE ACT AT RS. 2.50 LACS. TOWARD THIS, A DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT IN NAYAN BUILDERS AND DEVELOPERS (SUPRA), DISMISSING THE REVENUES APPEAL CHALLENGING THE ALLOWANCE OF THE ASSESSEES APPEAL CONTESTING THE SAME ON THE GROUND OF IT BEING DEBATABLE , AS NOT RAISING ANY SUBSTANTIAL QUESTION OF LAW, IS BEING RELIED UPON. IN OTHER WORDS, THE SAID DECISION IS BEING ADVANCED AS LAYING DOWN A PR O POSITION OF LAW THAT ADMISSION OF APPEAL IN QUANTUM PROCEEDINGS BY THE HON'BLE HIGH COURT , WHICH WOULD BE ON A S UBSTANTIAL QUESTION OF 7 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO LAW , SAVES PENALTY IN - AS - MUCH AS THE MATTER BECOMES PER SE DEBATABLE. RELIANCE IS ALSO PLACED ON THE DECISION BY THE T RIBUNAL IN THE CASE OF ADVAITA ESTATE DEVELOPMENT LTD. VS. ITO [2013] 27 ITR (TRIB) 112 (MUM) TO BUTTR ESS THE CLAIM OF SUCH AN UNDERSTANDING OF THE SAID DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT. IN THIS REGARD, T O BEGIN WITH, THE ARGUMENT CANNOT BE ADOPTED IN PURSUANCE TO THE GROUND NO.1 IN - AS - MUCH AS THE ORDER BY THE HONBLE HIGH COURT IN THE ASSESSEES OWN CASE IS DATED 8 - 8 - 2014, WHILE THE ORDERS LEVYING AND CONFIRMING THE PENALTY IN THE PRESENT CASE ARE DATED 28 - 3 - 2011 AND 20 - 2 - 2012 RESPECTIVELY. IN FACT, THE DECISION IN THE CASE OF NAYAN BUILDERS AND DEVELOPERS (SUPRA) BY THE HONBLE HIGH COURT STANDS ALSO RENDERED SUBSEQUENTLY ON 8 - 7 - 2014. HOW COULD THE LD. CIT(A), OR FOR THAT MATTER, THE AO, BE FAULTED OR SAID TO HAVE ERRED ? THE IMPUGNED ORDER CANNOT, THEREFORE, BE ASSAILED ON THAT SCORE. SO, HOWEVER, THE APPELLANT CAN ASSUME AN ORAL GROUND BEFORE US, WHI CH CAN BE ADMITTED AND ADJUDICATED UPON, AFTER ALLOWING AN OPPORTUNITY TO THE OTHER SIDE, BOTH QUA ADMISSION AND FOR RESPONDING. THE SAME WAS GIVEN AND, IN FACT, VERY FAIRLY, NOT EVEN OBJECTED TO BY THE REVENUE. WE, ACCORDINGLY, CONSIDER THE PLEA ON MERITS . THE DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT IS, WITHOUT DOUBT , BINDING ON US, SO THAT IF IT INDEED STATES OR LAYS DOWN SUCH A PR O POSITION, I.E., AS STATED, THE SAME WOULD REQUIRE BEING FOLLOWED BY US, BEING A DECLARATION OF THE LAW IN THE MATTE R IN - SO - FAR AS THE JURISDICTION OF HONBLE HIGH COURT IS CONCERNED. THE ISSUE I N DISPUTE BEING BASED ON THE RATIO D E CENDI OF THE SAID DECISION, WE MAY REPRODUCE THE ENTIRE DECISION, AS UNDER: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CI VIL JURISDICTION INCOME TAX APPEAL NO.415 OF 2012 THE COMMISSIONER OF INCOME TAX - 7 ...APPELLANT V/S M/S NAYAN BUILDERS AND DEVELOPERS ...RESPONDENT MR ABHAY AHUJA FOR APPELLANT. 8 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO MR SANJIV M. SHAH FOR RESPONDENT. CORAM : S.C. DHARMADHIKARI AN D B.P. COLABAWALLA JJ. DATE : 8TH JULY 2014. P.C. : - HAVING HEARD MR AHUJA, LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT, WE FIND THAT THIS APPEAL CANNOT BE ENTERTAINED AS IT DOES NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW . THE IMPOSI TION OF PENALTY WAS FOUND NOT TO BE JUSTIFIED AND THE APPEAL WAS ALLOWED. AS A PROOF THAT THE PENALTY WAS DEBATABLE AND ARGUABLE ISSUE, THE TRIBUNAL REFERRED TO THE ORDER ON ASSESSEES APPEAL IN QUANTUM PROCEEDINGS AND THE SUBSTANTIAL QUESTIONS OF LAW WHICH HAVE BEEN FRAMED THEREIN. WE HAVE ALSO PERUSED THAT ORDER DATED 27 TH SEPTEMBER 2010 ADMITTING INCOME TAX APPEAL NO. 2368 OF 2009. IN OUR VIEW, THERE WAS NO CASE MADE OUT FOR IMPOSITION OF PENALTY AND THE SAME WAS RIGHTLY SET SIDE. THE APPEAL RAISES NO SUBSTANTIAL QUESTION OF LAW, IT IS DISMISSED . NO. COSTS. [EMPHASIS, OURS] THE HONBLE COURT , AS APPARENT , HAS CLEARLY RE FUSED TO ENTERTAIN THE QUESTION OF LAW WHICH MAY HAVE BEEN FORMULATED FOR ITS CONSIDERATION AND , CONSEQUENTIAL LY, TO ANSWER IT. THE LAYING DOWN OF ANY PR O POSITION OF LAW , IN - AS - MUCH AS IT IS ONLY THE PRONOUNCEMENT OF LAW OR THE RATIO OF THE DECISION THAT I S BINDING, COULD ONLY FOLLOW AND BE SUBSEQUENT TO IT A DMITTING A SUBSTANTIAL QUESTION OF LAW AS ARISING FROM THE IMPUGNED ORDER , WHERE - UPON ONLY THE HONBLE COURT WOULD EXERCISE JURISDICTION AND, BEING CALLED UPON TO, ADJUDICATE OR ANSWER THE QUESTION OF L AW AS ADMITTED OR AS SUITABLY MODIFIED BY IT IN VIEW OF THE EXACT OR THE PRECISE QUESTION (OF LAW) CONSIDERED AS A RIS ING IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE. WHY, THE HONBLE HIGH COURT COULD HAVE EASILY, IF IT CONSIDERED OTHERWISE, ANSWERED T HE QUESTION OF LAW, SINCE ADMITTED, IN FAVOUR OF THE ASSESSEE - RESPONDENT. IN FACT, THE HONBLE COURT REFERS TO THE PENALTY BEING A DEBATABLE AND ARGUABLE ISSUE A DIFFERENT MATTER ALTOGETHER, AND NOT THE ISSUE IN THE QUANTUM PROCEEDINGS. COULD IT BE SAID THAT THAT IS WHAT IT, NEVERTHELESS, MEANT. WE ARE AFRAID NOT. RATHER, EVEN IF SO, IT WOULD IMPLY JUST THAT 9 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO THAT THE ISSUE IN ASSESSMENT APPEAL WAS FOUND BY IT AS DEBATABLE INDEED; IT REFERRING TO THE ORDER BY THE TRIBUNAL IN THE QUANTUM PROCEEDINGS AS WE LL AS TO THE SUBSTANTIAL QUESTIONS OF LAW ARISING THERE - FROM, SINCE ADMITTED. FURTHER ON , THE HONBLE HIGH COURT HAS NOT EXPRESSED ANY VIEW WITH REGARD TO THE ISSUE AS DELINEATED , I.E . , OF ADMISSION OF APPEAL IN ASSESSMENT AS PER SE MAKING THE ISSUE DEBATA BLE, PRECLUDING PENALTY. RATHER, A FINDING AS TO A DEBAT ABLE ISSUE MAY ALSO NOT ASSIST THE ASSESSEES CASE UNLESS THE SAME IS FOUND TO LEAD TO A SUBSTANTIAL QUESTION OF LAW. NO DOUBT, THE HONBLE COURT HAS EXPRESSED A VIEW WHEN IT STATES THAT NO CASE FOR T HE IMPOSITION OF THE PENALTY HAS BEEN MADE OUT. EVEN AS THE HONBLE COURT DOES NOT STATE ANY REASON FOR THE SAME, PERHAPS CONSIDERING IT REDUNDANT TO DO SO IN THE FACTUAL MATRIX OF THE CASE, THE SAME IS ONLY WITH REGARD TO THE LEVY OF PENALTY , AND WHICH CO ULD ONLY BE ON THE BASIS OF WHAT STANDS DONE, OR NOT DONE, BY THE REVENUE AUTHORITIES IN THE PENALTY PROCEEDINGS. WHEN THE HONBLE COURT SAYS THAT NO CASE FOR THE IMPOSITION OF THE PENALTY IS MADE OUT, IT MEANS ONLY THAT, I.E., THERE IS NO CASE FOR THE LEV Y OF PENALTY U/S.271(1)(C) OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, GIVEN THE LAW IN THE MATTER. NO OTHER INFERENCE COULD, IN OUR HUMBLE VIEW, BE DRAWN FROM THE SAID STATEMENT. A DECISION, IT IS TRITE LAW, IS AN AUTHORITY FOR WHAT IT ACTUALLY DECIDES, AND NOT WHAT MAY REMOTELY OR EVEN LOGICALLY FLOW FROM IT (REFER: GOODYEAR INDIA LTD. V. STATE OF HARYANA [1991] 188 ITR 402 (SC) AND BLUE STAR LTD. VS. CIT [1996] 217 ITR 514 (BOM), TO CITE SOME) . THIS WOULD ALSO CORROBORATE WHAT STANDS STATED BY US EARLIER (PARA 4.2 OF THIS ORDER), THAT THE IMPUGNED ORDERS IMPOSING AND CONFIRMING THE LEVY OF PENALTY , PASSED MUCH EARLIER, COULD , UNDER THE ASSESSEES GD. 1, BE ASSAILED ON LY ON THE BASIS OF NO CASE FOR IMPOSITION OF PENALTY BEING MADE OUT . THE LD . C OUNSEL , ON BEING P OSTED WITH THIS VIEW BY THE BENCH ON A READING OF THE DECISION IN THE CASE OF NAYAN BUILDERS AND DEVELOPERS (SUPRA), WOULD THEN TAKE US TO THE ORDER BY THE TRIBUNAL IN ADVAITA ESTATE DEVELOPMENT LTD. (SUPRA), CLAIMING THAT THE CITED DE CISION HAD BEEN FOUND BY THE TRIBUNAL THEREIN TO RAISE THE SAID PR O POSITION. WE HAVE CAREFULLY PERUSED THE SAID ORDER TO FIND IT AS N OT CORRECT . THE DECISION BY THE 10 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO HON'BLE JURISDICTIONAL HIGH COURT IN NAYAN BUILDERS AND DEVELOPERS (SUPRA) IS CONSPICUOUS B Y ITS ABSENCE IN THE SAID O RDER. THE TRIBUNAL IN THAT CASE HAS FOLLOWED THE DECISION BY THE CO - ORDINATE BENCH IN NAYAN BUILDERS AND DEVELOPER S PVT. LTD. VS. ITO (IN ITA NO. 2379/MUM/2009 DATED 18.03.2011/COPY ON RECORD), AND WHICH IN TURN STANDS RENDERED F OLLOWING THE DECISION BY THE TRIBUNAL IN THE CASE OF RUPAM MERCANTILE VS. DY. CIT [2004] 91 ITD 237 (AHD) (TM) AND RAMILA RATILAL SHAH VS. ASST. CIT [1998] 60 TTJ (AHD) 171. HE WAS, AT THIS STAGE, CONFRONTED BY THE BENCH WITH THE DECISION IN THE CASE OF CI T VS. DHARMSHI B. SHAH [2014] 366 ITR 140 (GUJ) AND CIT VS. SPLENDER CONSTRUCTION [2013] 352 ITR 588 (DEL) , I.E., DECISIONS BY THE HIGHER COURTS TAKING A DIFFERENT VIEW, AND WHICH WOULD SUPERSEDE THAT BY THE TRIBUNAL . THE HONBLE COURT IN DHARMSHI B. SHAH (SUPRA) , FACED WITH A QUESTION AS TO WHETHER ADMISSION OF A TAX APPEAL BY THE HONBLE HIGH COURT WOULD ITSELF BE A SUFFICIENT GROUND FOR COMING TO THE CONCLUSION THAT THE MATTER IS DEBATABLE (REFER Q UESTION OF LAW (II) RAISED BEFORE IT AT PG. 142 OF THE R EPORTS), SO THAT THE PENALTY COULD NOT SURVIVE, REJECTED THE SAID PR O POSITION, ANSWERING THE QUESTION IN THE NEGATIVE. IT , REFER R ING TO ITS EARLIER DECISION IN CIT VS. PRAKASH S. VYAS (IN TAX APPEAL NO. 606 OF 2010 DATED 15.11.2015/COPY ON RECORD) , ALSO RE LIED UPON BY THE REVENUE BEFORE US , H E LD THAT ADMISSION OF A TAX APPEAL BY A HIGH COURT IS ONLY INDICATIVE OF THE COURTS OPINION THAT THE ISSUE RAISED BEFORE I T REQUIRES FURTHER CONSIDERATION BY IT. THAT A PRIMA FACIE CASE IS MADE OUT, AND THE QUESTION/S ARE REQUIRED TO BE DECIDED AFTER ADMISSION. UNLESS, THEREFORE, SOME OTHER INTENTION CLEARLY EMERGES FROM THE ORDER ITSELF , MERE ADMISSION OF AN APPEAL BY THE HONBLE HIGH COURT CANNOT, WITHOUT ANYTHING FURTHER, BE AN INDICATION OF THE ISSUE BEING DEBATABLE SO AS TO DELETE PENALTY U/S.271(1)(C) OF THE ACT. OF - COURSE, IT H A ST E N S TO ADD , AS WELL AS TO PUT THE RECORD STRAIGHT, THAT IT DOES NOT, WH EN IT SAY S SO, SUGGESTS THAT NO INTENTION, I.E., AS TO THE MATTER ARISING BEING DEBATABLE, COULD AT ALL BE G ATHERED FROM THE ORDER OF THE COURT, I.E., IN EXPLICIT OR IMPLICIT TERMS. BUT ONLY THAT, WITHOUT SUCH INTENTION, NO PRESUMPTION AS TO A DEBATE WOULD ARISE , LEADING TO THE SUMMARY OR AUTOMATIC DELETION OF THE PENALTY WITHOUT ANY 11 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO FURTHER REASONS OR GROUNDS EMERGING FROM THE RECORD. THE VIEW EXPRESSED BY IT EARLIER IN PRAKASH S. VYAS (SUPRA) STANDS ENDORSED, SO THAT PENALTY FOR CONCEALMENT OR FURNISHING INACCURATE PARTICULARS OF INCOME COULD NOT BE DELETED OR HELD AS NON - MAINTAINABLE MERELY ON THE BASIS OF A PRESUMPTI ON AS TO A DEBATE ON THE BASIS OF ADMISSION OF THE APPEAL IN THE QUANTUM PROCEEDINGS, I.E., WITHOUT BEING ACCOMPANIED BY THE REASONS FOR THE SAME - EVEN IF PRIMA FACIE , OR EVEN IF THERE WERE INDEPENDENT GROUND S AND REASONS TO BELIEVE THAT THE ASSESSEES CA SE WOULD FALL UNDER MISCHIEF ENVISAGED IN CLAUSE (C) OF SUB SECTION (1) OF SECTION 271 OF THE ACT. REFERENCE TOWARD THIS IS MADE TO PARAS 11 AND 12 IN PRAKASH S. VYAS (SUPRA) , WHICH WERE A LSO ADVERT ED TO DURING HEARING BY THE LD. DR (REFER PGS . 143 - 146 / PA RAS 8 - 10 OF THE REPORTS 366 ITR ) SIMILAR VIEW STANDS ALSO EXPRESSED IN SPLENDER CONSTRUCTION (SUPRA). IN THE FACTS OF THAT CASE, THE APPEAL BY THE ASSESSEE WAS DISMISSED AND THE ASSESSMENT , AS FRAMED , APPROVED BY ALL THE HIGHER AUTHORITIES. THE TRIBUNAL HAD , IN THE VIEW OF THE HONBLE COURT, GLOSSED O VER THIS IMPORTANT FACT. IT COULD NOT UNDER THE CIRCUMSTANCES BE SAID THAT THE DISMISSAL OF THE ASSESSEES APPEAL, I.E., IMMEDIATELY UPON ITS ADMISSION, WOULD RAISE A DEBATABLE ISSUE, OR WOULD EXCLUDE PENALT Y. W E OBSERVE A PARITY OF FACTS WITH THE INSTANT CASE. F URTHER, T HE SAID DECISION ALSO IS A POINT ER TO THAT EVEN ONE FACT MAY BE CRUCIAL , FOR THE PURPOSE OF DECIDING AS TO THE ISSUE BEING DEBATABLE. WE SAY SO AS A QUESTION OF LAW HAS TO BE DECIDED IN A GIVEN SE T OF FACTS. THE QUESTION FORMULATED FOR ADJUDICATION BY THE HONBLE HIGH COURT PREDICATES ON A GIVEN SET OF FACTS, WHICH MAY HAVE A DIRECT BEARING ON THE ISSUE ITSELF OR AS REGARDS IT BEING DEBATABLE. IN THE PRESENT CASE, FOR INSTANCE, THE REFERRED QUESTIO N OF LAW DOES NOT REFER TO ANY PARTICULAR FACT, AND MAY PERHAPS, THEREFORE, AS ALSO NOTED EARLIER, NOT CAPTURE OR BRING OUT THE ISSUE /CONTROVERSY IN TOTO (REFER PARA 4.2 OF THIS ORDER) . 4.4 PENALTY PROCEEDINGS, IT MAY BE APPRECIATED, ARE SEPARATE AND DIS TINCT PROCEEDING S UNDER THE ACT. THE PROVISION (SECTION 271(1)(C)) PLACES THE BURDEN OF AN 12 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO EXPLANATION, I.E., IN RELATION TO ANY FACT MATERIAL TO THE COMPUTATION OF INCOME FOR THE RELEVANT YEAR , ON THE ASSESSEE, FAILING WHICH HE IS DEEMED TO HAVE CONCEALED THE P A R TICULARS OF INCOME. IN OTHER WORDS, THE APPLICABILITY O F THE PROVISION HINGES CRITICALLY ON THE SATISFACTION O F THE INGREDIENTS OF THE CHARGING PROVISION, WHICH ARE WELL SETTLED . C OMING TO THE ISSUE OF THE MATTER BEING DEBATABLE, THE SAME ITSELF IM PLIES THAT THE MATTER ADMITS OF TWO OR MORE VIEW S . IF THAT BE SO, THE SAME ITSELF CONSTITUTES A REASONABLE EXPLANATION, ESCHEWING THE LEVY OF PENALTY . SUCCINCTLY PUT, SECTION 271(1)(C) ITSELF OFFERS SUFFICIENT SCOPE FOR NON LEVY OF PENALTY ON THE BASIS OF THE ASSESSEE ADVANCING A PLAUSIBLE EXPLANATION COUPLED WITH PROPER DISCLOSURE ; IN SHORT , A JUSTIFIABLE REASON. PE NALTY PROCEEDINGS ARE INDEPENDENT PROCEEDINGS, I.E., A SEPARATE CODE IN ITSELF, B AC KED BY ABUNDANT CASE LAW BY THE HONBLE APEX COURT SETTLING THE SAME. FINDINGS IN THE COLLATERAL PROCEEDINGS, THOUGH RELEVANT, ARE NOT CONCLUSIVE OR DETERMINATIVE OF THE MATTER, SO THAT THE SAME COULD ALWAYS BE DRAWN UPON IN THE PENALTY PROCEEDINGS. WHY , THEN, AN INFERENCE BE REQUIRED TO BE DRAWN FROM THE MERE FACT OF THE COLLATERAL PROCEEDINGS BEING IN FURTHER APPEAL ? THIS IS MORE SO AS THE ASSESSEE IS IN THE PENALTY PROCEEDINGS ALSO AT LIBERTY TO FURNISH EXPLANATION / S OR ADDUCE MATERIAL, I.E., WHICH HAVE NOT BEEN RELIED UPON IN THE QUANTUM PROCEEDINGS. REFERENCE I N THIS CONTEXT BE MADE TO THE DECISION IN P. JAYAPPAN V. ITO [1984] 149 ITR 696 (SC). IN THE FACTS OF THAT CASE, PROSECUTION PROCEEDINGS WERE CHALLENGED ON THE GROUND THAT REASSESSMENT PROCEEDINGS WERE PENDING. THE APEX COURT HELD THAT THESE WERE INDEPENDE NT PROCEEDINGS AND, THUS, MAINTAINABLE. IN FACT, THIS IS PRECISELY WHAT STANDS SET UP FOR BEING ADJUDICATED BY THE HONBLE COURT PER Q UESTION (III) IN DHARMSHI B. SHAH (SUPRA) , AND WHICH STANDS ANSWERED , WITH REFERENCE TO THE DECISION IN PRAKASH S. VYAS (S UPRA), THE OPERATIVE PART OF IT STANDS REPRODUCED BY THE HONBLE COURT, BY IT IN FAVOUR OF THERE BEING NO SUCH SCOPE, GIVEN THE CLEAR PROVISION OF SECTION 271(1)(C) . COMING TO THE FACTS OF THE CASE, WE HAVE ALREADY FOUND AS A MATTER OF FACT THAT THE ASSESS EE HA D , MUCH LESS RECEIVED A POST FACTO APPROVAL, NOT EVEN APPLIED FOR EXTENSION OF TIME , SO THAT THERE WAS NO QUESTION OF IT HAVING BEEN ALLOWED THE SAME , AND THAT A 13 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO CLAIM IN ITS RESPECT IS , THEREFORE , FALSE . AN ALLOWANCE OF EXTENSION OF TIME WOULD CLEARL Y SPECIFY THE TIME PERIOD ALLOWED, BESIDES REFERRING TO THE APPLICATION, WHILE THE REFERENCE IN THE INSTANT CASE IS ONLY TO THE ASSESSEES LETTER INTIMATING THE RECEIPT OF THE FOREIGN EXCHANGE TO THE RBI . THIS IN FACT IMPELS US TO STATE THAT APART FROM THE GENERAL QUESTION REFERRED TO AND ADMITTED, AND WHICH WOULD PERFORCE DRAW THE ATTENTION TO THE FACTUAL MATRIX OF THE CASE AS WELL AS THE ASSESSEES CONDUCT, PERHAPS A MORE POINTED QUESTION OUGHT TO HAVE ALSO BEEN REFERRED TO THE HONBLE COURT , BRINGING OUT THE FACT OF TH E ABSENCE OF ANY MATERIAL ON RECORD TO SHOW THAT ANY SUCH APPLICATION HAD BEEN MADE BY THE ASSESSEE. 4.5 FINALLY, WE MAY CONSIDER THE ASSESSEES RELIANCE ON SCHRADER DUNCAN V. ADDL CIT (IN ITA NO. 8223/MUM/2010 DATED 01/1/2015 / COPY ON RE CORD ). THE TRIBUNAL IN THAT CASE GIVES NO REASON, APART FROM RELYING ON OTHER DECISIONS BY THE TRIBUNAL, NOTED ABOVE, FOR HOLDING THAT MERE ADMISSION OF AN ASSESSMENT APPEAL BY THE HONBLE HIGH COURT WOULD BE A SUFFICIENT GROUND FOR CANCELLING PENALTY, A Q UESTION, CLEARLY HELD BY THE HONBLE JURISDICTIONAL HIGH COURT AS NOT RAISING ANY SUBSTANTIAL QUESTION OF LAW (ALSO REFER PARA 4.3 FOR THE PURPORT OF THE SAID DECISION) . THE SAID DECISION BY THE TRIBUNAL IS IN CONTRADICTION TO THE DECISIONS IN DHARMSHI B. SHAH (SUPRA) AND SPLENDER CONSTRUCTION (SUPRA) , WHICH SHA LL HAVE PRECEDENCE . WE ARE ACCORDINGLY UNABLE TO FOLLOW THE SAID DECISION BY THE TRIBUNAL. IN FACT, THE ISSUE A RIS ING RAISES A VERY FUNDAMENTAL ISSUE, INDIRECTLY ADDRESSED IN THESE DECISIONS, CLEARLY ON THE ISSUE UNDER REFERENCE A ND , IN OUR VIEW ANSWERED IN P. JAYAPPAN (SUPRA) , AS TO WHETHER DECISIONS IN COLLATERAL PROCEEDINGS W OULD OPERATE TO RENDER DYSFUNCTIONAL SEPARATE AND INDEPENDENT PROVISIONS OF THE ACT, I.E., WOULD THE LATTER BE THEREBY RENDERED INOPERABLE OR ONLY CONSEQUEN TIAL? 4. 6 WE, IN VIEW OF THE FOREGOING, ARE IN FULL AGREEMENT WITH THE FINDINGS OF THE AUTHORITIES BELOW THAT THE ASSESSEES EXPLANATION IS BOTH FALSE AND NOT BONA FIDE AND IS GUILTY OF A DISHONEST CONDUCT , AS NOTED BY BOTH THE AUTHORITIES BELOW ( ALSO R EFER PARA S 14 ITA NO. 2101/MUM/2012 (A.Y. 2003 - 04) EMBLEM FASHION WEAR EXPORTS PVT. LTD VS. ITO AND 2.4 OF THE ASSESSMENT AND THE IMPUGNED ORDER RESPECTIVELY). THE PENALTY, LEVIED AT RS.2,50,000/ - , I.E., AT 120 % OF TAX SOUGHT TO BE EVADED, AS AGAINST A MINIMUM OF 100% AND A MAXIMUM OF 300% THEREOF, IS ACCORDINGLY UPHELD. WE DECIDE ACC ORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 8 TH , 2015 SD/ - SD/ - (JOGINDER SINGH) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 08 .09.2015 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI