Shri Ramkrupa Medicare Pvt.Ltd., Baroda V. The ACIT.,Circle-4, Baroda

ITA 2189/AHD/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0826 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 14-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 02-09-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Gift; Retrospective amendment; Question of law
• Section: 143(3); 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI S. S. GODARA, JM, & SHRI MANISH BORA D, AM. ITA NO.2189/AHD/2011 ASST. YEAR:2008-09 M/S SHRI RAMKRUPA KEDICARE PVT. LTD., 44, HARIBHAKTI COLONY, OLD PADRA ROAD, VADODARA VS. ACIT, CIRCLE-4, BARODA. APPELLANT RESPONDENT PAN AAECS 3818F APPELLANT BY SHRI MILIN MEHTA, AR RESPONDENT BY SHRI PRASOON KABRA, SR.DR DATE OF HEARING: 14/7/2016 DATE OF PRONOUNCEMENT: 08/8/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . ASSESSEE IS IN APPEAL FOR ASST. YEAR 2008-09 AGAIN ST THE ORDER OF LD. CIT(A)-III, BARODA DATED 20.07.2011 VIDE APP EAL NO.CAB-III- 166/10-11. ASSESSMENT U/S 143(3) OF THE IT ACT, 196 1 (IN SHORT THE ACT ) WAS FRAMED ON 20.12.2010 BY ACIT, CIRCLE-4, B ARODA. 2. BRIEFLY STATED FACTS OF THE CASE AS CULLED OUT F ROM THE RECORDS ARE THAT THE ASSESSEE IS A COMPANY ENGAGED IN THE B USINESS OF RUNNING HEART INSTITUTE, CRITICAL CARE CENTRE AND D IAGNOSTIC CENTRE. RETURN OF INCOME WAS FILED ON 29.9.2009 DECLARING T OTAL INCOME AT ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 2 RS.86,48,170/-. CASE WAS SELECTED FOR SCRUTINY ASSE SSMENT AND AFTER MAKING CERTAIN ADDITIONS OF RS.70,71,345/- INCOME W AS ASSESSED AT RS.1,55,19,515/-. 3. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CI T(A) AND GOT PART RELIEF. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L AGAINST THE ORDER OF LD. CIT(A) AND ASSESSEE RAISED TWO GROUNDS OF APPEAL - (I) RELATING TO CONFIRMATION OF DISALLOWANCE OF EXPENDI TURE OF RS. 5,97,314/- CONSIDERING IT AS NON-BUSINESS EXPENDITU RE BEING GIFTS GIVEN TO DOCTORS & (II) RELATING TO CONFIRMATION OF DISALLOWANCE U/S 40(A)(IA) OF THE ACT OF RS.53,41,049/- (PAYMENTS MA DE TO DOCTORS AS ALLOWABLE WITHOUT DEDUCTING TDS U/S 194J OF THE ACT ). 5. WE TAKE UP FIRST GROUND OF APPEAL RELATING TO CO NFIRMATION OF DISALLOWANCE OF EXPENDITURE OF RS. 5,97,314/-. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS LD. ASSESSING OFFICER CAME A CROSS THE EXPENDITURE OF RS.6,44,699/- TOWARDS GIFT EXPENSES. ON FURTHER PERUSAL IT REVEALED THAT THERE WERE TWO LEDGER ACCO UNTS OUT OF WHICH ONE RELATED TO GIFTS TO EMPLOYEES DURING THE FESTIV AL OCCASION AT RS.47,385/- AND THE OTHER ACCOUNT RELATING TO GIFTS GIVEN TO DOCTORS IN TOTAL RS.5,97,314/-. THE ASSESSEE WAS UNABLE TO PRO VIDE THE DETAILS OF NAMES, ADDRESSES OF THE DOCTORS TO WHOM GIFTS OF RS.5,97,314/- WERE GIVEN. LD. CIT(A) ALLOWED THE CLAIM OF GIFTS G IVEN TO EMPLOYEES AT RS.47,385/- BUT CONFIRMED THE ADDITION FOR RS.5, 97,314/- BY OBSERVING AS UNDER :- ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 3 5.4 I HAVE CONSIDERED THE CONTENTIONS OF THE A.O. AND THE SUBMISSIONS MADE BY THE APPELLANT. I HAVE ALSO GONE THROUGH THE LEDGER COPY OF GIFT EXPENDITURES SUBMITTED BY THE APPELLANT. THE LEDGER ACCOUNTS SHO W THAT APPELLANT HAS MAINTAINED TWO LEDGER ACCOUNTS FOR GIFT EXPENDITURE S. ONE LEDGER ACCOUNT IS FOR GIFT GIVEN TO THE EMPLOYEES OF THE APPELLANT. IN TH IS ACCOUNT, SMALL SUMS MOSTLY AMOUNTING TO RS. 500/-HAVE BEEN PAID TO EMPLOYEES A S DIWALI GIFT. THE TOTAL OF SUCH EXPENDITURE COMES TO RS. 47,385/-, SINCE THESE ARE PAYMENTS MADE TO THE EMPLOYEES ON THE OCCASION OF DIWALI, BIRTHDAY ETC., HENCE, THE SAME ARE ALLOWABLE AS EXPENDITURE FOR THE PURPOSE OF BUSINES S OF THE APPELLANT AS THEY ARE ALSO COVERED BY THE PROVISIONS OF FBT. , 5.5 SO FAR AS BALANCE EXPENDITURES OF RS. 5,97,314/ -, IS CONCERNED, THESE HAVE BEEN INCURRED FOR MAKING GIFTS MOSTLY TO DOCTORS AN D OUTSIDERS. IN MOST OF THE CASES, THE NAMES OF THE RECIPIENTS OF THE EXPENDITU RE HAVE NOT BEEN RECORDED. THUS, THESE EXPENDITURES ARE NOT VERIFIABLE. IN ORD ER TO PROVE THAT THE EXPENDITURES WERE INCURRED FOR HAVING CORDIAL RELAT IONSHIP WITH DOCTORS, THE APPELLANT WAS BOUND TO KEEP THE NAMES OF SUCH DOCTO RS IN THE LEDGER ACCOUNT. JUST WRITING A NARRATION AS 'PURCHASES OF GIFTS FOR DOCTORS', 'AMOUNT PAID TO DOCTORS FOR GIFT EXPENSES', 'PURCHASES OF NOKIA MOBILE PHON ES FOR DOCTORS' ETC. WILL NOT MAKE THESE EXPENDITURES HAVING BEEN INCURRED FOR TH E PURPOSE OF ;BUSINESS. HENCE, THESE ARE NOT ALLOWABLE ON ACCOUNT OF BEING NON- VERIFIABLE. MOREOVER, IF THESE GIFTS HAVE BEEN GIVEN TO DOCTORS, THEN AS PER PROVISIONS OF SECTION 28(IV), THE VALUE OF THESE GIFTS WILL BECOME INCOME OF THESE DOCTORS ARISING FROM THE PROFESSION BEING CARRIED ON BY THEM. THUS, THE GIFTS ARE IN THE NATURE OF PROFESSIONAL FEE PAID BY THE APPELLANT TO THE DO CTORS. A PERUSAL OF THE AUDIT REPORT SUBMITTED BY THE APPELLANT SHOWS THAT AS PER ANNEXURE (6) GIVING THE DETAILS OF LATE DEDUCTION OF TDS OF THE PAYMENTS MA DE BY THE APPELLANT TO DOCTORS HAVE BEEN TREATED AS PAYMENTS OF FEE FOR PR OFESSIONAL SERVICES AND TDS HAS BEEN DEDUCTED U/S 194J. IN SUCH CIRCUMSTANC ES, THE APPELLANT WAS BOUND TO DEDUCT TDS ON THESE PAYMENTS ALSO WHICH HA S NOT BEEN DONE. THUS, THESE GIFT EXPENDITURES ARE DISALLOWABLE AS P ER PROVISIONS OF SECTION 40(A)(IA) ALSO. 5.6 ACCORDINGLY, IT IS HELD THAT THE DISALLOWANCE O F EXPENDITURES OF RS. 5,97,314/- BY THE A.O. IS CORRECT AND ACCORDINGLY T HIS GROUND OF APPEAL RELATING TO THIS AMOUNT IS DISMISSED. 6. LD. AR SUBMITTED THAT THE ASSESSEE HAS INCURRED THE EXPENDITURE OF RS. 5, 97,314/- ON GIFTS TO DOCTORS FOR MAINTAINING CORDIAL BUSINESS RELATIONSHIPS WITH THE DOCTORS. ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 4 THE ASSESSEE RUNS A HOSPITAL NAMED 'BARODA HEART IN STITUTE & RESEARCH CENTRE'. THE HOSPITAL IS A LEADING HOSPITAL IN VADO DARA PROVIDING SERVICES IN MEDICAL FIELD RELATED TO HEART DISEASES. THE ASSESS EE HAS ALL MAJOR FACILITIES FOR TREATING THE HEART PATIENTS. PEOPLE FROM BARODA AND ALL SURROUNDING AREAS VISIT THE HOSPITAL FOR TAKING TREATMENT. GENERALLY A PATIENT WITH HEART PROBLEM R EACHES THE HOSPITAL IN HIS CRITICAL HOURS. IN ORDER TO PROVIDE UNINTERRUPTED A ND TIMELY SERVICES TO THE PATIENTS, THE ASSESSEE MAINTAINS CORDIAL BUSINESS R ELATIONSHIPS WITH ALL LEADING DOCTORS IN THE CARDIAC FIELD. THE ASSESSEE HAS GIVE N GIFTS TO VARIOUS DOCTORS ON THE OCCASION OF BIRTHDAY OR OIVVALI TO MAINTAIN BUS INESS RELATIONSHIP. THE EXPENSES ARE IN THE NATURE OF BUSINESS PROMOTION EX PENSES AND THEREFORE THE SAME ARE ALLOWABLE U/S. 37 OF THE ACT. THE EXPENSE INCURRED ARE DIRECTLY RELATED TO THE BUSINESS OF THE ASSESSEE. IN THE CASE OF ACIT V. LIVA HEALTHCARE LTD. ITA NO. 847/MUM/2012 FOR AY 2008- 09 SIMILAR ADDITION WAS DELETED. THE AO HAD DISALLO WED THE FOREIGN TOUR EXPENSES OF THE DOCTORS ON THE GROUND THAT SPONSORS HIP OF OVERSEAS TOUR WAS NOT RELATED TO THE BUSINESS OF THE ASSESSE. THE ADDITIO N WAS DELETED ON THE GROUND THAT THE EXPENSES WERE RELATED TO THE BUSINESS OF T HE ASSESSEE- REFER PARA 5 TO 7 OF THE DECISION ON PAGE 188 TO 190 OF INDEX - II. THE ASSESSEE BEING A CORPORATE ENTITY CAN NOT HAVE ANY EXPENDITURE OF PERSONAL NATURE. PAYING SMALL SUM BY WAY OF GIFT AT THE DIWALI. BIRTHDAY AND MARRIAGE CEREMONY ETC IS BUSINESS RELATED EXPENDITURE AND ALLOWABLE AS DEDUCT ION. [POLYPLEX CORPORATION LTD. VS. ITO.(2009) 122 TTJ (DEL) 949] WE RELY ON DECISION OF THE ITAT. AHD IN CASE OF SURAT ELECTRICITY CO. LTD. VS. ACIT [(2010) 128 TTJ (AHD) 696J]WHERE IT WAS HELD THAT IF THE EXPENDITURE HAS BEEN INCURRED BY THE ASSESSEE VOLUNTARILY, EVEN WIT HOUT NECESSITY, HUT IT IS FOR PROMOTION OF BUSINESS, THE DEDUCTION WOULD BE PERMI SSIBLE U/S. 37(1). WE ALSO RELY ON DECISION OF HON'BLE KARNATAKA HIGH COURT IN CASE OF MYSORE KIRLOSKAR LTD. VS. CIT (1987) 166 ITR 836 (KAR). DU NCANS TEA LTD. V. CIT (2012) 25 TAXMANN.COM 127 (CALCUTTA) 7. ON THE OTHER HAND, LD. DR SUPPORTED THE ORDERS O F LOWER AUTHORITIES. ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 5 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THROUGH THIS GROUND ASSESSEE HAS CHALLEN GED THE ACTION OF LD. CIT(A) CONFIRMING DISALLOWANCE OF RS.5,97,31 4/- TOWARDS GIFTS TO DOCTORS. WE OBSERVE THAT ASSESSEE HAS DULY ACCEPTED TO HAVE GIVEN THE GIFTS ON VARIOUS ITEMS INCLUDING MOBILE PHONE, JEWELLERY, DINNER SET ETC. TO VARIOUS DOCTORS OR MAINTAINING CORDIAL BUSINESS RELATIONSHIP. WE FURTHER OBSERVE THAT LD. CIT(A) HA S RIGHTLY OBSERVED THAT ALL THESE DOCTORS ARE EARNING PROFESSIONAL INC OME IN THE COURSE OF PROVIDING PROFESSIONAL SERVICES AND THEY HAVE RECEI VED THESE GIFTS. WE AGREE WITH THIS VIEW THAT LOOKING TO THE MATERIA LITY OF THE AMOUNT WHICH IS RS.5,97,314/- IT WAS NECESSARY ON THE PART OF THE ASSESSEE TO PROVIDE COMPLETE DETAILS CONTAINING NAMES, ADDRE SSES OF THE DOCTORS WHO HAVE ACCEPTED THESE GIFTS SO THAT IT CO ULD HAVE FACILITATED THE REVENUE TO RECOVER THE DUE TAXES FROM THEM. WE FIND THAT ASSESSEE IS UNABLE TO PROVIDE THESE DETAILS. THEREF ORE, IN THE GIVEN FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT LD . CIT(A) HAS RIGHTLY SUSTAINED THE ADDITION. WE UPHOLD THE SAME AND DISM ISS THE GROUND OF ASSESSEE. 9. GROUND NO.2 RELATES TO CONFIRMATION OF DISALLOWA NCE OF RS. 53,41,049/- U/S 40(A)(IA) OF THE ACT. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS LD. ASSESSING OFFICER CAME ACROSS THE E XPENDITURE IN THE NAME OF LABORATORY CHARGES OF RS. 53,41,049/-. PRIM A FACIE LD. ASSESSING OFFICER WAS OF THE BELIEF THAT THIS AMOUN T BEING EXPENDITURE IN THE NATURE OF PROFESSIONAL FEES PAID TO DR. DHIREN SHAH AND OTHERS, WAS REQUIRED TO BE SUBJECTED TO TAX U/S 194J OF THE ACT. HOWEVER, WHEN THE SAME WAS ENQUIRED FROM ASSESSEE I T CAME UP ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 6 THAT NO SUCH TDS HAS BEEN DEDUCTED. AS PER ASSESSEE REASON FOR NON-DEDUCTION OF TDS WAS THAT SERVICES WERE PROVIDE D BY DR. DHIREN SHAH DIRECTLY TO THE PATIENTS AND LIABILITY OF DEDU CTION OF TDS IS ON THE PERSON WHO MAKES THE PAYMENT WHICH IN THIS CASE WER E THE PATIENTS AND NOT THE ASSESSEE. LD. ASSESSING OFFICER WAS NOT CONVINCED WITH THIS REPLY AND ON EXAMINING THE ISSUE ON SAMPLE BAS IS FROM GOING THROUGH SOME OF THE REPORTS ISSUED BY THE INSTITUTE RUN BY THE ASSESSEE IT WAS CLEAR THAT THE SAME WERE SIGNED BY DR. DHIREN S. SHAH AND THE BILLS WERE RAISED BY THE ASSESSEE. THE REFORE, ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND DISALLOWED THE EXPENDITURE OF RS. 53,41,049 /- FOR NON- DEDUCTION OF TDS U/S 194J OF THE ACT. AGGRIEVED, AS SESSEE WHEN CAME IN APPEAL BEFORE LD. CIT(A) BUT COULD NOT SUCC EED AS LD. CIT(A) SUSTAINED THE ADDITION BY OBSERVING AS UNDER :- 6.6 I HAVE CONSIDERED THE CONTENTIONS OF THE A.O. A ND THE AGREEMENT BETWEEN THE APPELLANT AND DR. DHIREN SHAH. FROM THE AGREEME NT CLAUSE (C), IT IS EVIDENT THAT THE HOSPITAL HAS AGREED TO PROVIDE. FA CILITIES TO DR. DHIREN SHAH FOR RUNNING THE PATHOLOGICAL LABORATORY IN THE ALLO WED SPACE IN THE HOSPITAL WITH A VIEW TO PROVIDING ADDED SERVICES TO THE PATI ENTS VISITING OR ADMITTED IN THE HOSPITAL. IT HAS BEEN STATED IN CLAUSE (D) THAT THE AGREEMENT IS NOT FOR LEASE OR GIVE LICENSE TO THE DOCTOR, BUT IS AN A RRANGEMENT FOR MUTUAL BENEFIT AND ACCORDINGLY THE PRESENT AGREEMENT WILL NOT CREA TE ANY RIGHT OF TENANCY, LICENSEES, LESSEE OR OTHER SIMILAR RIGHTS IN FAVOUR OF THE DOCTOR. THESE TWO CLAUSES CLEARLY SHOW THAT THE APPELLANT'S CLAIM THA T DR. DHIREN SHAH IS NOT PROVIDING ANY PROFESSIONAL SERVICES TO THE HOSPITAL IS NOT CORRECT. THE APPELLANT IS RUNNING A HEART CARE INSTITUTE AND IT IS WELL KNOWN THAT FOR SMOOTH RUNNING OF SUCH TYPE OF HOSPITAL, LABORATORY SERVIC ES ARE A MUST. WITHOUT SUCH SERVICES, THE HOSPITAL SIMPLY CANNOT RUN. TO SAY TH AT THE LABORATORY IS ONLY SERVING THE INTEREST OF THE PATIENTS AND NOT THE HO SPITAL IS INCORRECT STATEMENT. THE LABORATORY IS SERVING THE PATIENTS ONLY THROUGH THE HOSPITAL AND NOT INDEPENDENT OF IT. IT IS VERY CLEAR FROM THE FACT T HAT THE LABORATORY IS OCCUPYING THE FLOOR IN THE HOSPITAL ITSELF, THE CHARGES OF TH E LABORATORY ARE BEING COLLECTED BY THE HOSPITAL STAFF AND NOT BY THE LABORATORY STA FF. THIS IS EVIDENT FROM THE ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 7 SUB CLAUSES B & C OF CLAUSE 2 OF THE AGREEMENT. CLA USE (B) STATES THAT THE DOCTORS SHOULD KEEP THE LABORATORY EQUIPMENT FOR CO NDUCTING ALL THE TYPES OF THE TESTS ORDINARILY REQUIRED TO BE CARRIED OUT FOR THE PATIENTS OF THE COMPANY. CLAUSE (C) SAYS THAT THE DOCTORS SHALL KEEP INFORME D THE COMPANY AND STAFF ABOUT THE CHARGES TO BE LEVIED FOR DIFFERENT TYPES OF TESTS AND ALSO EDUCATE THE STAFF OF THE COMPANY FOR RAISING THE BILLS AND MAKING COLLECTION FOR THE CHARGES FOR DIFFERENT TESTS AND SERVICES RENDERED T HROUGH THE LABORATORY. CLAUSE (E), SIMILARLY, STATES THAT IN SPITE OF PATI ENT ADMITTED TO THE HOSPITAL AND TEST COVERED BY THE PACKAGE OFFERED BY THE HOSPITAL , THE DOCTOR SHALL NOT DIRECTLY RAISE ANY BILL OR RECOVER CHARGES FROM THE PATIENTS OR THE PERSONS WHO VISIT FOR GETTING THE TESTS / INVESTIGATIONS CARRIE D OUT AND THE SAID BILLING AND COLLECTION SHALL BE MADE EXCLUSIVELY BY THE COMPANY . THIS CLEARLY SHOWS THAT HOSPITAL IS OFFERING DIFFERENT TYPES OF PACKAGES FO R CARDIAC CARE AND INCLUDES NUMBER OF TESTS WHICH ARE TO BE CARRIED ON BY 'THE LABORATORY RUN BY DR. DHIREN SHAH. THUS, FOR FULFILLING THE OBLIGATIONS OF THE H OSPITAL TOWARDS PERSONS AVAILING SUCH PACKAGES, THE LABORATORY IS PROVIDING ITS PROFESSIONAL SERVICES TO THE ITAL. THE PERSONS AVAILING THESE PACKAGES ARE V ISITING THE HOSPITAL KNOWING ONLY ABOUT THE HOSPITAL AND THEY ARE NOT CONCERNED AS TO WHERE THESE TESTS ARE CARRIED OUT. THE LOCATION OF THE LABORATORY IN THE PREMISES OF THE HOSPITAL AND ALSO SIMILARITY IN THE NAMES SHOWS THAT FOR ALL PRACTICA L PURPOSES, THIS LABORATORY IS BEING DECLARED TO PUBLIC AS PART AND PARCEL OF THE HOSPITAL. HENCE, IT IS EVIDENT THAT THE LABORATORY IS MAKING PROFESSIONAL SERVICES TO THE HOSPITAL AND NOT DIRECTLY TO THE PATIENTS. 6.7 THIS IS ALSO EVIDENT FROM CLAUSE (J), WHICH MAK ES IT MANDATORY ON THE DOCTOR TO MAINTAIN COMPLETE RECORD OF THE EXPENSES INCURRE D BY HIM FOR PROVIDING SERVICES IN THE LABORATORY AND ALSO TO GIVE ACCESS TO SUCH RECORD TO THE COMPANY OR ANY OF ITS AUTHORIZED AGENTS/ CONSULTANTS, OFFIC ERS, DIRECTORS OR STAFF FOR VERIFYING THE CORRECTNESS AND COMPLETENESS OF THE RECORDS SO MAINTAINED. SUCH CLAUSE CAN BE INCLUDED ONLY ON ACCOUNT OF THE FACT THAT TH E HOSPITAL WANTS TO KEEP A CONTROL ON THE DOCTOR IN ORDER TO SEE THAT HE IS NO T OVER CHARGING THEM. THUS, THESE ALSO SHOWS THAT THE DOCTOR IS PROVIDING PROFE SSIONAL SERVICES TO THE HOSPITAL ONLY. 6.8 SIMILARLY, CLAUSE (K) MAKES IT OBLIGATORY ON TH E DOCTOR AND HIS STAFF TO FOLLOW THE RULES AND REGULATIONS OF THE HOSPITAL AN D ALSO ABIDE BY THE DIRECTIONS GIVEN BY THE PERSON IN CHARGE OF THE HOS PITAL FROM TIME TO TIME FOR PROPER ADMINISTRATION OF THE HOSPITAL. SIMILARL Y, CLAUSE (D) OF SECTION 3 MAKES IT OBLIGATORY ON PART OF THE COMPANY TO MAINT AIN COMPLETE RECORDS OF THE BILLS RAISED AND AMOUNT COLLECTED FOR THE SERVI CES RENDERED BY THE DOCTOR AND ALSO ALLOW ACCESS TO THE DOCTOR FOR VERI FYING THE RECORDS FROM TIME TO TIME. THE MOST IMPORTANT PART IS CLAUSE (G) OF SECTION 3 WHICH MAKES IT OBLIGATORY ON PART OF THE COMPANY TO TAKE OUT INSURANCE FOR PROFESSIONAL INDEMNITY IN THE NAME OF THE COMPANY A ND ALSO THE DOCTOR FOR THE SERVICES RENDERED BY THE DOCTOR OF A REASONABLE SUM, AT THE COSTS TO BE ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 8 BORNE BY THE DOCTOR AND KEEP THE SAID POLICY IN FORCE FROM TIME TO TIME. IF THE APPELLANT'S CONTENTIONS ARE TRUE AND THE LAB ORATORY WAS NOT RENDERING ANY PROFESSIONAL SERVICES TO THE COMPANY, THEN THERE WO ULD HAVE BEEN NO NEED FOR THE COMPANY TO TAKE INSURANCE FOR PROFESSIONAL INDE MNITY FOR THE SERVICES RENDERED BY THE LABORATORY. THE VERY FACT THAT THE COMPANY PROPOSED TO TAKE INSURANCE FOR PROFESSIONAL INDEMNITY FOR SERVICES R ENDERED BY THE DOCTOR SHOWS THAT THE COMPANY IS AVAILING THE PROFESSIONAL SERVI CES FROM THE LABORATORY AND ANTICIPATES THAT IF ANYTHING GOES WRONG, THE PATIEN T WILL SUE THE COMPANY FOR MISCONDUCT OF THE LABORATORY. THIS, ITSELF SHOWS TH AT THE PATIENTS RECOGNIZE ONLY THE COMPANY AND NOT THE LABORATORY SEPARATELY. 6,9 HENCE, THE CONTENTIONS OF THE APPELLANT THAT DR . DHIREN SHAH IS NOT PROVIDING ANY PROFESSIONAL SERVICES TO THE COMPANY IS NOT ACCEPTABLE. THIS IS ALSO EVIDENT FROM THE COPIES OF THE BILLS OF THIS L ABORATORY SUBMITTED BY THE APPELLANT. THE NAME OF THE LABORATORY HAS BEEN MENT IONED AS 'BARODA HEART INSTITUTE CLINICAL LABORATORY'. BUT, WATERMARK ON T HE BILL IS READ AS 'BHIRC' WHICH IS ABBREVIATED FORM OF 'BARODA HEART INSTITUT E & RESEARCH CENTRE' - THE NAME OF THE HOSPITAL BEING RUN BY THE APPELLANT COM PANY. IT IS THE CONTENTION OF THE APPELLANT THAT IT PROVIDES CARDIAC CARE. THE PRESENCE OF THIS WATERMARK ALSO SHOWS THAT IT IS THE HOSPITAL IS REPRESENTING TO THE PATIENTS THAT THE LABORATORY SERVICES ARE BEING RENDERED BY THE HOSPI TAL ITSELF ANT THEN HOSPITAL IS COLLECTING THE PAYMENTS FROM THEM WHICH ARE REIM BURSED TO THE LABORATORY FOR THE PROFESSIONAL SERVICES RENDERED BY THE LABOR ATORY TO THE HOSPITAL. 6.10 THE APPELLANT HAS PLACED RELIANCE ON THE DECIS ION OF ACIT VS. INDRAPRASHTHA MEDICAL CORPORATION LTD. (128 TTD 261 ), WHEREIN, IT HAS HELD THAT PROVISIONS OF SECTION 194J APPLY TO THE SERVIC E RECIPIENT AND NOT TO ANY OTHER PERSON. IN CASE OF DOCTORS, THE SERVICE RE CIPIENTS ARE THE PATIENTS AND NOT THE HOSPITAL. IN VIEW OF THE SAME PROVISIONS OF SEC TION 1943 CANNOT BE MADE APPLICABLE. BUT THE FACTS OF THIS DECISION ARE DIFF ERENT FROM THE CASE IN HAND. FROM THE DISCUSSIONS MADE ABOVE, IT IS CLEAR THAT THE RE CIPIENT OF SERVICES RENDERED BY DR. DHIREN SHAH AND DR SUDHIR RAO IS HOSPITAL RUN B Y THE APPELLANT COMPANY AND NOT THE PATIENTS. HENCE, THIS DECISION IS NOT APPLI CABLE TO THE PRESENT CASE. 6.11 WITHOUT PREJUDICE TO THE OTHER SUBMISSION MADE BY THE APPELLANT IN THIS REGARD, THE APPELLANT HAS ALSO SUBMITTED THAT AS PE R THE DECISIONS IN THE CASE OF JAIPUR VIDYUT VITARAN NIGAM LTD. [123 TTJ 888 (J P)] AND TEJA CONSTRUCTION [129 TTJ 57 (HYDERABAD)] ONLY THE AMOUNTS WHICH HA VE REMAINED PAYABLE BY THE APPELLANT AT THE END OF THE YEAR TO THESE LABOR ATORIES CAN BE DISALLOWED U/S 40(A)(IA). THE BALANCE AMOUNTS WHICH HAVE ALREA DY BEEN PAID DURING THE RELEVANT YEAR CANNOT BE DISALLOWED U/S 40(A)(IA). I T MAY BE MENTIONED HERE THAT THE DECISION IN THE CASE OF JAIPUR VIDYUT VITA RAN NIGAM LTD. CAME FOR CONSIDERATION BEFORE ITAT, KOLKATA B' BENCH IN THE CASE OF DCIT VS. ASHIKA STOCK BROKINGS LTD. 44 SOT 556 (KOL.) VIDE ORDER DA TED 19.11.2010, THE BENCH HAS REFUSED TO FOLLOW THE DECISION IN THE CAS E OF JAIPUR VIDYUT VITARAN ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 9 NIGAM LTD. (SUPRA) AND HAS HELD THAT EVEN IF THE SU M HAS ALREADY BEEN PAID TO THE CONTRACTORS OR THE SUB-CONTRACTORS ON WHICH TAX IS DEDUCTIBLE AT SOURCE AS PER THE PROVISIONS OF THE ACT, SECTION 40(A)(IA) BE ATTRACTED. IT MAY BE MENTIONED HERE THAT THE DECISION IN THE CASE OF ASH IKA STOCK BROKING LTD. IS THE LATEST DECISION IN THIS REGARD, BEING LATER THA N THE DECISION IN THE CASE OF TEJA CONSTRUCTION ALSO. HENCE, THE .RATIO LAID DOWN BY DECISION IN THE CASE OF ASHIKA STOCK BROKING LTD. IS FOLLOWED AND THIS ALTE RNATIVE SUBMISSION OF THE APPELLANT IS DISMISSED. 6.12 HENCE, IT IS HELD THAT THE TDS WAS REQUIRED TO BE MADE BY THE HOSPITAL ON THE PAYMENTS MADE TO DR. DHIREN SHAH U/S 194J. SINC E THIS HAS NOT BEEN DONE HENCE, THE A.O.'S ACTION OF DISALLOWANCE U/S 40(A)( IA), OF PROFESSIONAL FEES PAID TO HIM IS UPHELD. SO FAR AS PAYMENTS MADE TO DR. SUDHI R RAO IS CONCERNED, THE APPELLANT HAS NOT MADE ANY SUBMISSIONS OR SUBMITTED COPIES OF BILLS ETC. OF THIS DOCTOR EITHER BEFORE THE A.O. OR BEFORE THE UNDERSI GNED. IN THE ABSENCE OF ANY DETAILS, THE PAYMENTS MADE TO DR. SUDHIR RAO OF RS. 6,20,679/- IS NOT ALLOWABLE IN ITSELF. MOREOVER, IN VIEW OF THE DISCUSSIONS MAD E IN THE CASE OF DR. DHIREN SHAH AND IT HAS BEEN CLAIMED BY THE APPELLANT THAT DR. SUDHIR RAO IS RENDERING THE SIMILAR SERVICES TO THE HOSPITAL, IT IS HELD TH AT TDS WAS ALSO DEDUCTIBLE U/S 194J ON THE PAYMENTS MADE TO DR. SUDHIR RAO AND HEN CE A.O. HAS RIGHTLY DISALLOWED THE PAYMENTS MADE TO HIM U/S 40(A)(IA). ACCORDINGLY, THIS GROUND OF THE APPELLANT IS DISMISSED. 10. AGGRIEVED, ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 11. AT THE OUTSET THE LD. AR SUBMITTED THAT - THE AO HAS DISALLOWED THE PAYMENT OF LABORATORY CHA RGES TO DR. DHIREN SHAH AND OTHERS U/S. 40(A)(IA) ON ACCOUNT OF NON DEDUCTION OF TDS. THE AO HAS TREATED IT AS PAYMENT OF PROFESSION AL FEES US. 194J AND THEREBY DISALLOWED THE ENTIRE PAYMENT. BEFORE THE AO AS WELL AS THE CIT(A) IT WAS CONTENDE D THAT PAYMENT FOR LABORATORY CHARGES IS NOT IN THE NATURE OF PROF ESSIONAL FEES AND THEREFORE SECTION 194J IS NOT APPLICABLE. HOWEVER, WITHOUT ADMITTING AND WITHOUT GOING INTO T HE ISSUE OF APPLICABILITY OF SECTION 194J WE SUBMIT THAT AFTER INSERTION OF SECOND PROVISO IN SECTION 40(A)(IA) W.E.F. 1-4-2013 DISALL OWANCE CANNOT BE MADE IN CASE THE ASSESSEE PROVES THAT THE RECIPIENT OF THE SUM HAS INCLUDED THE INCOME IN HIS RETURN OF INCOME AND HAS PAID DUE TAXES. ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 10 IN THE FOLLOWING CASES IT HAS BEEN HELD THAT SECOND PROVISO INSERTED W.C.F 1-4-2013 IN SECTION 40(A)(IA) IS DECLARATORY AND CURATIVE IN NATURE AND SHOULD BE GIVEN RETROSPECTIVE EFFECT W.E .F 1-4-2005 BEING THE DATE FROM WHICH SECTION 40(A)(IA) WAS INSERTED BY THE FINANCE (NO.2) ACT, 2004. FROHBERG REAITY PVT. LTD. V. ACIT ITA NO. 2066/AHD/ 2014 AY 2010- 11. REFER PARA 6 TO 8.1 ON PAGE 194 TO 196 OF INDEX -II. ANSAL LAND MARK TOWNSHIP (P) LTD. V. CIT ITA 160/20 15 DELHI HIGH COURT. REFER PARA 5 TO 14 ON PAGE 200 TO 207 OF IND EX - II. SELPRINT V. CITLA) - 33. MUMBAI ITA NO. 3688/MUM/20 12 FOR AY 2008- 09. REFER PARA 3 TO 6 ON PAGE 210 TO 212 OF INDEX - II. SANTOSH KUMAR KEDIA V. ITO ITA NO. 1905/KOL/2014 AY 2007-08. REFER PARA 10 ON PAGE 226 OF INDEX- II. BALLABH DAS AGARWAL V. ITO ITA NO. 1278/KOL/2011 AY 2008- 09. REFER PARA 5 TO 7 ON PAGE 233 TO 236 OF INDEX - II. SHRI G SHANKER V. ACIT ITA NO. 1832/BANG/2013 AY 2005-06. REFER PARA 5 TO 5.4.2 AT PAGE NOS. 246 TO 250 OF INDEX - II. 12. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF LOWER AUTHORITIES. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. THROUGH THIS GROUND ASSESSEE HA S CHALLENGED THE ACTION OF LD. CIT(A) IN CONFIRMING THE DISALLOWANCE OF RS.53,41,049/- U/S 40(A)(IA) OF THE ACT TOWARDS PAYMENT OF LABORAT ORY. WE OBSERVE THAT DURING THE COURSE OF HEARING LD. AR HAS SUBMIT TED THAT WITHOUT GOING INTO APPLICABILITY OF SECTION 194J OF THE ACT FOR THE PAYMENT ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 11 KINDLY REFER TO THE SECOND PROVISO IN SECTION 40(A) (IA) OF THE ACT INSERTED W.E.F. 1.4.2013 AS PER WHICH DISALLOWANCE CANNOT BE MADE IN CASE THE ASSESSEE PROVES THAT THE RECIPIENT OF THE SUM HAS INCLUDED THE INCOME IN HIS RETURN OF INCOME AND HAS PAID DUE TAXES. WE FURTHER OBSERVE THAT IN THE CASE OF ANSAL LAND MARK TOWNSHI P (P) LTD. VS. CIT IN ITA NO.160/2015 SIMILAR ISSUE CAME UP BEFORE HON. DELHI HIGH COURT WHEREIN RELIANCE WAS PLACED BY THE RESPONDENT ON THE DECISION OF THE CO-ORDINATE BENCH, AGRA IN THE CASE OF RAJEE V KUMAR AGARWAL VS. ADDL. CIT IN ITA NO.337/AGRA/2013 WHEREIN IT WA S HELD THAT THE SECOND PROVISO TO SECTION 40(A)(IA) IS DECLARATORY AND CURATIVE IN NATURE AND IT HAS RETROSPECTIVE EFFECT FROM 01.04.2 005. HON. DELHI HIGH COURT ADOPTED THE DECISION OF THE TRIBUNAL, AG RA BENCH IN THE CASE OF RAJEEV KUMAR AGARWAL VS. ADDL. CIT (SUPRA) AND DISMISSED THE APPEAL OF THE REVENUE BY OBSERVING AS UNDER :- 13. TURNING TO THE DECISION OF THE AGRA BENCH OF IT AT IN RAJIV KUMAR AGARWAL V. ACIT (SUPRA ) , THE COURT FINDS THAT IT HAS UNDERTA KEN A THOROUGH ANALYSIS OF THE SECOND PROVISO TO SECTION 40 (A)(IA) OF THE ACT AND ALSO SOUGHT TO EXPLAIN THE RATIONALE BEHIND ITS INSERTION. IN PARTICULAR, THE COURT WOULD LIKE TO REFER TO PARA 9 OF THE SAID ORDER WHICH READS AS UNDER: ON A CONCEPTUAL NOTE, PRIMARY JUSTIFICATION FOR SU CH A DISALLOWANCE IS THAT SUCH A DENIAL OF DEDUCTION IS TO COMPENSATE FOR THE LOSS OF REVENUE BY CORRESPONDING INCOME NOT BEING TAKEN INTO ACCOUNT IN COMPUTATION OF TAXABLE INCOME IN THE HANDS OF THE RECIPIENTS OF THE PAYMENTS. SUCH A POL ICY MOTIVATED DEDUCTION RESTRICTIONS SHOULD, THEREFORE, NOT COME INTO PLAY WHEN AN ASSESSEE IS ABLE TO ESTABLISH THAT THERE IS NO ACTUAL LOSS OF REVENUE. THIS DISALLOWANCE DOES DEINCENTIVIZE NOT DEDUCTING TAX AT SOURCE, WHEN SUC H TAX DEDUCTIONS ARE DUE, BUT, SO FAR AS THE LEGAL FRAMEWORK IS CONCERNED, THIS PR OVISION IS NOT FOR THE PURPOSE OF PENALIZING FOR THE TAX DEDUCTION AT SOURCE LAPSES. THERE ARE SEPARATE PENAL PROVISIONS TO THAT EFFECT. DEINCENTIVIZING A LAPSE AND PUNISHING A LAPSE ARE TWO DIFFERENT THINGS AND HAVE DISTINCTLY DIFFERENT, AND SOMETIMES MUTUALLY EXCLUSIVE, CONNOTATIONS. WHEN WE APPRECIATE THE OBJECT OF SCHE ME OF SECTION 40(A)(IA), AS ON THE STATUTE, AND TO EXAMINE WHETHER OR NOT, ON A 'F AIR, JUST AND EQUITABLE' INTERPRETATION OF LAW- AS IS THE GUIDANCE FROM HON' BLE DELHI HIGH COURT ON INTERPRETATION OF THIS LEGAL PROVISION, IN OUR HUMB LE UNDERSTANDING, IT COULD NOT BE ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 12 AN 'INTENDED CONSEQUENCE' TO DISALLOW THE EXPENDITU RE, DUE TO NON DEDUCTION OF TAX AT SOURCE, EVEN IN A SITUATION IN WHICH CORRESP ONDING INCOME IS BROUGHT TO TAX IN THE HANDS OF THE RECIPIENT. THE SCHEME OF SECTIO N 40(A)(IA), AS WE SEE IT, IS AIMED AT ENSURING THAT AN EXPENDITURE SHOULD NOT BE ALLOWED AS DEDUCTION IN THE HANDS OF AN ASSESSEE IN A SITUATION IN WHICH INCOME EMBEDDED IN SUCH EXPENDITURE HAS REMAINED UNTAXED DUE TO TAX WITHHOL DING LAPSES BY THE ASSESSEE. IT IS NOT, IN OUR CONSIDERED VIEW, A PENALTY FOR TA X WITHHOLDING LAPSE BUT IT IS A SORT OF COMPENSATORY DEDUCTION RESTRICTION FOR AN INCOME GOING UNTAXED DUE TO TAX WITHHOLDING LAPSE. THE PENALTY FOR TAX WITHHOLDING LAPSE PER SE IS SEPARATELY PROVIDED FOR IN SECTION 271 C, AND, SECTION 40(A)(I A) DOES NOT ADD TO THE SAME. THE PROVISIONS OF SECTION 40(A)(IA), AS THEY EXISTE D PRIOR TO INSERTION OF SECOND PROVISO THERETO, WENT MUCH BEYOND THE OBVIOUS INTEN TIONS OF THE LAWMAKERS AND CREATED UNDUE HARDSHIPS EVEN IN CASES IN WHICH THE ASSESSEE'S TAX WITHHOLDING LAPSES DID NOT RESULT IN ANY LOSS TO THE EXCHEQUER. NOW THAT THE LEGISLATURE HAS BEEN COMPASSIONATE ENOUGH TO CURE THESE SHORTCOMING S OF PROVISION, AND THUS OBVIATE THE UNINTENDED HARDSHIPS, SUCH AN AMENDMENT IN LAW, IN VIEW OF THE WELL SETTLED LEGAL POSITION TO THE EFFECT THAT A CURATIV E AMENDMENT TO AVOID UNINTENDED CONSEQUENCES IS TO BE TREATED AS RETROSPECTIVE IN N ATURE EVEN THOUGH IT MAY NOT STATE SO SPECIFICALLY, THE INSERTION OF SECOND PROV ISO MUST BE GIVEN RETROSPECTIVE EFFECT FROM THE POINT OF TIME WHEN THE RELATED LEGA L PROVISION WAS INTRODUCED. IN VIEW OF THESE DISCUSSIONS, AS ALSO FOR THE DETAILED REASONS SET OUT EARLIER, WE CANNOT SUBSCRIBE TO THE VIEW THAT IT COULD HAVE BEE N AN 'INTENDED CONSEQUENCE' TO PUNISH THE ASSESSEES FOR NON DEDUCTION OF TAX AT SO URCE BY DECLINING THE DEDUCTION IN RESPECT OF RELATED PAYMENTS, EVEN WHEN THE CORRE SPONDING INCOME IS DULY BROUGHT TO TAX. THAT WILL BE GOING MUCH BEYOND THE OBVIOUS INTENTION OF THE SECTION. ACCORDINGLY, WE HOLD THAT THE INSERTION OF SECOND PROVISO TO SECTION 40(A)(IA) IS DECLARATORY AND CURATIVE IN NATURE AND IT HAS RETROSPECTIVE EFFECT FROM 1ST APRIL, 2005, BEING THE DATE FROM WHICH SUB CLAU SE (IA) OF SECTION 40(A) WAS INSERTED BY THE FINANCE (NO. 2) ACT, 2004. 14. THE COURT IS OF THE VIEW THAT THE ABOVE REASONI NG OF THE AGRA BENCH OF ITAT AS REGARDS THE RATIONALE BEHIND THE INSERTION OF TH E SECOND PROVISO TO SECTION 40(A) (IA) OF THE ACT AND ITS CONCLUSION THAT THE S AID PROVISO IS DECLARATORY AND CURATIVE AND HAS RETROSPECTIVE EFFECT FROM 1ST APRI L 2005, MERITS ACCEPTANCE. 15. IN THAT VIEW OF THE MATTER, THE COURT IS UNABLE TO FIND ANY LEGAL INFIRMITY IN THE IMPUGNED ORDER OF THE ITAT IN ADOPTING THE RATIO OF THE DECISION OF THE AGRA BENCH, ITAT IN (RAJIV KUMAR AGARWAL V. ACIT). 16. NO SUBSTANTIAL QUESTION OF LAW ARISES IN THE FA CTS AND CIRCUMSTANCES OF THE PRESENT CASE. THE APPEAL IS DISMISSED. 14. RESPECTFULLY FOLLOWING THE JUDGMENT OF HON. DEL HI HIGH COURT IN THE CASE OF CIT VS. ANSAL LANDMARK TOWNSHIP (P) LTD . (SUPRA) AND ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 13 THE DECISION OF THE CO-ORDINATE BENCH, AGRA, IN THE CASE OF RAJEEV KUMAR AGARWAL VS. ADDL. CIT (SUPRA), WE RESTORE THI S ISSUE TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION THAT ASSESS EE SHALL PROVIDE BEFORE HIM ALL THE DETAILS WITH REGARD TO THE RECIP IENTS OF THE INCOME OF HAVING RECEIVED RS.53,41,049/- AND TAXES PAID BY TH EM. WE FURTHER DIRECT THE ASSESSING OFFICER TO CARRYOUT NECESSARY VERIFICATION IN RESPECT OF THE PAYMENTS AND TAXES OF SUCH INCOME AN D ALSO FILING OF INCOME-TAX RETURN BY THE RECIPIENTS. NEEDLESS TO ME NTION THAT ADEQUATE OPPORTUNITY WILL BE PROVIDED TO THE ASSESS EE FOR FILING NECESSARY DETAILS TO SHOW THAT THE SAID RECIPIENTS HAVE REFLECTED THE RECEIPTS IN THEIR BOOKS OF ACCOUNT AND OFFERED THE SAME TO TAX IN THE PERIOD UNDER CONSIDERATION. IN CASE THE ASSESSING O FFICER FINDS THAT THE RECIPIENTS HAVE DULY PAID THE TAXES ON THE INCO ME, THE ADDITION MADE BY THE ASSESSING OFFICER SHALL STAND DELETED. THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 15. OTHER GROUND IS OF GENERAL NATURE, WHICH NEEDS NO ADJUDICATION. 16. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH AUGUST, 2016 SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 8/8/2016 MAHATA/- ITA NO. 2189/AHD/2011 ASST. YEAR 2008-09 14 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 05/08/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 08/08/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 8/8/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: