RAMAKRISHAN SETU, NAVI MUMBAI V. DCIT CIR 22(3), NAVI MUMBAI

ITA 2232/MUM/2012

• Counselvise Citation: 223219914 RSA 2012
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 19-03-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 04-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANJEEV JAIN
• Assessee Lawyers: DR P DANIEL
• Keywords: Business expenditure; Rectification of order; Audit objection; Corroborative evidences
• Section: 154; 143(3); 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI . . , / BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND . , SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 SHRI RAMAKRISHNAN SETU, PROP. M/S. VISHAL CONSTRUCTION, A-11, UNIQUE COOP. HSG. SOC., SECTOR 3, AIROLI, NAVI MUMBAI. / VS. THE DY.COMMISSIONER OF INCOME TAX, CIRCLE 22(3), MUMBAI ! ./ '# ./ PAN/GIR NO. : ADUPS 8236K ( !$ / APPELLANT ) .. ( %&!$ / RESPONDENT ) !$ ' / APPELLANT BY: DR.P.DANIEL %&!$ ( ' / RESPONDENT BY : SHRI SANJEEV JAIN ( ) / DATE OF HEARING : 19/03/2014 *+ ( ) / DATE OF PRONOUNCEMENT : 19/03/2014 , / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-33, MUMBAI DATED 13/3/2012 F OR THE ASSESSMENT YEAR 2006-07. THE REVISED GROUNDS HAVE BEEN FILED, WHIC H READ AS UNDER: . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 2 1. THE LEARNED CIT(A) ERRED IN FACTS AND ON LAW IN CONFIRMING THE ADDITION MADE U/S. 40(A)(IA) OF RS. 58,25,326/- BY THE A.O, BEING THE PAYMENTS MADE THROUGH MUKADAMS. 2. THE LEARNED CIT(A) ERRED IN FACTS AND ON LAW IN CONFIRMING AN AMOUNT OF RS. 1,01,03,745!- U/S. 40(A)(IA) OF THE I.T. ACT, 1961 INCLUDED IN THE TOTAL ADDITION OF RS.3,17,0L,630/-, WHEREAS THE T.D.S. PAYMENTS WERE MADE BEFORE THE DUE DATE FOR FILING OF THE RETURN OF INCOME. 3. THE LEARNED CIT(A) ERRED IN FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE OUT OF PROFESSIONAL CHARGES OF RS. 1,10,250/- U/S. 40(A )(IA) WHEN THE PROFESSIONAL FEES WAS THE DOUBLE ADDITION AND THE OTHER PAYMENT WAS LESS THAN THE LIMIT PRESCRIBED. 4. THE LEARNED CIT(A) ERRED IN FACTS AND IN LAW IN CONFIRMING THE ADDITION MADE U/S. 40(A)(IA) OF RS. 88,44,863!- IN THE CASE OF EA RLIER YEAR WHEREIN THE A.O. IN REMAND REPORT ACCEPTED BUT STILL THE CIT(A) CONFIRM ED AND THE SAME MAY PLEASE BE DELETED. 5. THE LEARNED CIT(A) ERRED IN DISCUSSING THE HIRIN G CHARGES OF RS.31,64,904/- AND ALLOWING THE SAME, HOWEVER IN THE CONCLUDING PA RT THE ADDITION WAS DELETED TO THE EXTENT OF RS. 16,40,904/- INSTEAD OF RS. 31, 64,904/- 6. THE LEARNED CIT(A) ERRED IN FACTS AND ON LAW IN CONFIRMING THE ADDITION MADE AS PENALTY/FINE AMOUNTING TO RS. 87,600/-, WHICH IS BAD IN LAW AND THE SAME PAYMENT WAS ESSENTIAL FOR THE PURPOSE OF CIVIL CONS TRUCTION. 7. THE LEARNED CIT(A) ERRED IN FACTS AND ON LAW IN NOT DELETING THE SALARY AND WAGES DISALLOWED OF RS. 1,65,000/- WHICH SHOULD HAV E ALSO BEEN ALLOWED BY THE CIT(A), AS ALL OTHER ADDITIONS MADE UNDER THE SAME HEAD WERE ALLOWED. 8. THE LEARNED CIT(A) ERRED IN FACT AND ON LAW IN F IRST REDUCING THE CONTRACT EXPENSES AT 10% AND THEN SUBSEQUENTLY CONFIRMING TH E SAME IN THE SAME ORDER WHICH IS CONTRADICTORY TO EACH OTHER. 9. THE LEARNED CIT(A) ERRED IN FACTS AND IN LAW IN SETTING ASIDE THE INTEREST ON MOBILIZATION EXPENSES OF RS. 1,53,518/- WHICH IS BA D IN LAW. 2. LD. AR HAS ALSO FURNISHED A CHART DESCRIBING BRI EFLY THE ISSUE RAISED IN EACH OF THE GROUND, WHICH WAS PLACED ON OUR RECORD AND COPY OF THE SAME WAS ALSO GIVEN TO LD. DR. ACCORDINGLY, WE PROCEED TO DECIDE THE PRESENT APPEAL. 3. THE ASSESSEE IS CIVIL & ROAD CONTRACTOR AND HAS BEEN ASSESSED VIDE ASSESSMENT ORDER DATED 29/12/2008 PASSED UNDER SECT ION 143(3) R.W.S. 144 OF THE INCOME TAX ACT, 1961(THE ACT). HE HAS FILED HI S RETURN OF INCOME AT A SUM OF RS.19,19,150/- WHICH IS ASSESSED AT A SUM OF RS. 4,87,06,790/-. VARIOUS . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 3 ADDITIONS WERE MADE WHICH WERE AGITATED IN AN APPEA L FIELD BEFORE LD. CIT(A). TO THE EXTENT ADDITIONS HAVE BEEN UPHELD BY LD. CI T(A), THE ASSESSEE IS AGGRIEVED AND HAS FILED AFOREMENTIONED GROUNDS OF A PPEAL. 4. APROPOS GROUND NO.1, TOTAL DISALLOWANCE OF RS.3, 17,01,630/- WAS MADE BY THE AO ON ACCOUNT OF NON-DEDUCTION AND DEPOSIT OF TDS UNDER THE PROVISIONS SECTION 194C R.W.S. 40(A)(IA) OF THE AC T. BIFURCATIONS OF THE SAID AMOUNT READ AS UNDER: LABOUR AND SUB-CONTRACT RS. 2,60,18,708/- HIRE CHARGES RS. 31,64,934/- TRANSPORTATION CHARGES RS. 23,14,288/- PROFESSIONAL FEES (ADMITTED IN TAX AUDIT REPORT) RS . 93,450/- PROFESSIONAL CHARGES RS. 1,10,250/- RS. 3,17,01,630/- BEFORE LD. CIT(A) IT WAS THE CONTENTION OF THE ASSE SSE THAT AMOUNT PAID TO LABOUR AND SUB-CONTRACT AMOUNTING TO RS.2,60,18,70 8/- WAS DIVIDED INTO TWO CATEGORIES, ONE IS A SUM OF RS.58,25,326/- AND OTH ER IS A SUM OF RS.2,01,93,382/-. WITH REGARD TO AMOUNT OF RS.58,2 5,326/- IT WAS CLAIMED THAT THE SAID AMOUNT DID NOT BEAR LIABILITY FOR TDS AS THE SAME WAS GIVEN TO IN HOUSE MUKADAMS. A CHART WAS FURNISHED SHOWING T HE NAMES OF THE PERSONS WHO ACTED AS MUKADAM SHOWING THE AMOUNTS PAID TO THEM. APART FROM THE SAID CHART NO FURTHER PROOF WAS FIELD, THEREFORE, A O IN THE REMAND PROCEEDINGS MENTIONED THAT ASSESSEE HAS FAILED TO ESTABLISH THA T THOSE MUKADAMS WERE EMPLOYEES OR NOT AND IN ABSENCE OF ANY OTHER CORRO BORATING EVIDENCE THE ADDITION WAS LIABLE TO BE SUSTAINED. ON THESE SUBM ISSIONS OF THE ASSESSEE AND AO, LD. CIT(A) HAS FOUND THAT APART FROM INDIVIDUA L NAMES MENTIONED AS MUKADAMS THERE WAS ONE NAME M/S. SAI ENTERPRISES, TO WHOM PAYMENT WAS . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 4 ALSO MADE. THEREFORE, LD. CIT(A) HAS SUSTAINED TH E DISALLOWANCE WITH THE FOLLOWING OBSERVATIONS: C. I HAVE GONE THROUGH THE CHART FURNISHED BEFOR E THE A.O. AND IT IS NOTE FROM THE SAME THAT INDIVIDUALS BY NAME MR. M.Y.SALOKHE, MR. S.R.JAISHNAV, S.M.KADAM, MR. M.M. VENUKUTTAN NAIR, MR. LAXMAN SIN GH CHAULIAN AND SAL ENTERPRISES ARE STATED TO BE HIS LABOUR MUKADAMS AN D PAYMENT OF RS. 14,25,314/- THROUGH M.Y. SALOKHE-RS. 2,75,529/- THR OUGH MR. VAISHNAV-RS. 14,91,707/-THROUGH S.M. KADAM-RS. 3,73,470/- THROUG H, M.M. VENUKUTTAN, RS. 1,21,359/- THROUGH LAXMAN CHAUHAN- AND RS.1,51,699/ - THROUGH SAI ENTERPRISES_HAVE BEEN PAID TO LABOURS. I HAVE CONSIDERED THE SAME. TO BEGIN WITH SAL ENTER PRISES CANNOT BE A LABOUR MUKADAM AS THE NAME SPEAKS FOR ITSELF THAT IT IS A BUSINESS ENTITY AND NOT AN INDIVIDUAL AND HENCE CANNOT BE A LABOUR MUKADAM. TH EN THE APPELLANTS PLEA THAT M.Y.SALOKHE, SR.VAISHNAV, S.M. MADAM, M.M. VEN UKUTTAN NAIR AND LAXMAN SINGH CHAUHAN ARE HIS EMPLOYEES THROUGH WHOM PAYMEN TS HAVE BEEN MADE TO THE LABOURS AND HENCE PROVISIONS OF TDS IS NOT APPL ICABLE, IS ALSO NOT TENABLE FOR THE REASON THAT THE TDS PROVISIONS ARE NOT ATTRACTE D IN THE CAS6 WHERE THE GANG OF LABOUR ARE PAID THROUGH GANG MATE WHO IS ORDINAR ILY CALLED MUKADAMS. SINCE THE GANG LEADER OR GANG MATE IS OWNING THE RESPONEI LII5TTORGHIZING THE LABOURS FOR THE JOB TO BE DONE AS WELL AS PAYMENT OF MONEY THROUGH WHOM THE TDS PROVISIONS ARE HELD NOT APPLICABLE FOR THE REASON T HAT THE PAYMENT IS NOT GOING TO HIM BUT TO INDIVIDUAL LABOURERS WHO ARE PAID IN CAS H EVEN THOUGH THE TOTAL SUM IS EXCEEDING MUCH MORE THAN THE AMOUNT EXEMPTED U/S. 1 94C FOR THE PURPOSE. THE APPELLANT IS MISTAKENLY TAKING HIS EMPLOYEES AS MUK ADAMS. HERE WHAT I APPELLANT IS RELYING UPON IS THAT THESE INDIVIDUALS ARE HIS EMPLOYEES WHOM HE CALLS MUKADAMS AND IS CLAIMING THAT PAYMENTS TO LAB OURERS THROUGH EMPLOYEES IS NOT ATTRACTED FOR DISALLOWANCE UNDER THE PROVISIONS OF SECTION 40(A)(IA). THE A.O. HAS REJECTED THE SUBMISSIONS FOR THE REASON THAT TH E APPELLANT HAS NOT EVEN BEEN ABLE TO PROVE THAT THEY ARE HIS EMPLOYEES, TO WHICH APPELLANT SAYS THAT SAME SHOULD NOT HAVE BEEN DOUBTED. I FIND THAT EVEN IF T HESE INDIVIDUALS ARE HIS EMPLOYEES THAT ITSELF WILL NOT AUTOMATICALLY EXEMPT PAYMENT MADE UNDER THE HEAD LABOUR & SUB-CONTRACTORS, AS IT IS NOT THROU GH GANG LEADER OF LABOURS. IN VIEW OF THIS THE DISALLOWANCE MADE U/S. 40(A)(IA) C LAIMED WRONGLY EXEMPT U/S. A0(A)(IA) ARE TO BE DISALLOWED AND HENCE ADDITION M ADE IS UPHELD. THIS FART OF GROUND NO.2 DEALING WITH DISALLOWANCE OF RS: 58,25, 326/- IS CONFIRMED. 4.1 REFERRING TO THE ABOVE OBSERVATIONS OF LD. CIT( A) IT WAS SUBMITTED BY LD. AR THAT LD. CIT(A) HAS WRONGLY SUSTAINED THE ENTIRE ADDITION. HE SUBMITTED THAT IF LD. CIT(A) IS OF THE OPINION THAT M/S. SAI ENTERPRISES CANNOT BE THE EMPLOYEE OF THE ASSESSEE THEN THE ADDITION WAS LIA BLE TO BE SUSTAINED ONLY TO THE EXTENT OF RS.1,51,699/-. HE ALSO REFERRED TO T HE DETAILS FILED AT PAGES 85 . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 5 AND 86 OF THE PAPER BOOK, WHICH IS A CHART SUBMITTE D BEFORE AO. THUS LD. AR PLEADED THAT LD. CIT(A) HAS COMMITTED AN ERROR IN S USTAINING THE ENTIRE DISALLOWANCE. 4.2 ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY LD. CIT(A). 4.3 WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTEN TIONS HAVE CAREFULLY BEEN CONSIDERED. DURING THE COURSE OF HEARING IT WAS PO INTED OUT BY US TO LD. AR THAT IN THE CHART REFERRED BEFORE US WITH REGARD TO THIS GROUND, COPY OF WHICH IS FILED AT PAGES 85 TO 86 OF THE PAPER BOOK, IT IS O BSERVED THAT AGAINST THE NAME OF THE MUKADAM THE AMOUNT OF TDS AS WELL AS CH ALLAN NUMBERS HAVE BEEN MENTIONED. HOWEVER, LD.AR COULD NOT EXPLAIN THE SA ME. IT HAS ALREADY BEEN POINTED OUT THAT IN THE REMAND PROCEEDINGS ALSO TH E AO OBSERVED THAT ASSESSEE DID NOT FURNISH DETAILS TO CORROBORATE TH E CHART. THEREFORE, WE ARE OF THE OPINION THAT IT WILL MEET THE INTEREST OF JUSTI CE IF THIS ISSUE IS RESTORED BACK TO THE FILE OF AO WITH A DIRECTION TO RE-ADJUDICATE THE SAME AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF PLACING ALL E VIDENCES ON RECORD. THEREFORE, THIS GROUND IS RESTORED BACK TO THE FILE OF A.O. AND THE SAME CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES. 5. APROPOS GROUND NO.2, THE AMOUNTS STATED IN THE G ROUND OF APPEAL IS PART OF DISALLOWANCE OF RS.3,17,01,630/-. THIS ISSUE IS DISCUSSED BY LD. CIT(A) ON PAGE 10, PARA-C. IT IS RECORDED IN THE ORDER OF LD . CIT(A) THAT TDS ON SUCH PAYMENT WAS DEPOSITED IN THE GOVERNMENT TREASURY ON 25/4/2006 I.E. AFTER THE END OF THE RELEVANT FINANCIAL YEAR BUT BEFORE D UE DATE OF FILING THE RETURN. ACCORDING TO THE ASSESSEE THIS ISSUE IS COVERED IN FAVOUR THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR AS SESSMENT YEAR 2005-06. IT IS AN ORDER DATED 31/1/2014 IN ITA NO.2231/MUM/2012, WHEREIN SIMILAR DISALLOWANCE MADE WAS DELETED FOLLOWING THE DECISIO N OF HONBLE CULCUTTA HIGH COURT IN THE CASE CIT VS. VIRGIN CREATIONS (GA.3200 /2011 DATED. . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 6 23/11/2011), WHEREIN IT WAS HELD THAT PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE NOT RETROSPECTIVE IN NATURE, THEREFORE, NOT AP PLICABLE TO A.Y2 2005-06. 5.1 WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE AN D AS IT IS NOT DISPUTED THAT PAYMENT OF TDS IS MADE ON 25/4/2006, WHICH IS BEFORE THE DUE DATE OF FILING OF RETURN FOR RELEVANT ASSESSMENT YEAR, RESP ECTFULLY FOLLOWING THE AFOREMENTIONED DECISION OF TRIBUNAL IN ASSESSEES O WN CASE WE DELETE THE ADDITION. FOR THE SAKE OF COMPLETENESS OBSERVATIO NS OF THE TRIBUNAL WHILE DELETING THE ADDITION FOR A.Y 2005-06 IN THE AFOREM ENTIONED ORDER ARE REPRODUCED HERE: 1. IN BRIEF, THE FACTS OF THE CASE ARE THAT THE AS SESSMENT UNDER SECTION 143(3) WAS COMPLETED BY THE ASSESSING OFFICER (HEREINAFTER REF ERRED TO AS AO) DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.34,47,394/-. HOWEVER, THE AO ON THE BASIS OF AUDIT OBJECTION TO THE EFFECT THAT TDS DEDUCTED BY THE AS SESSEE AGAINST THE PAYMENTS MADE TO THE CONTRACTORS WAS DEPOSITED BY THE ASSESSEE BE YOND THE DATE PRESCRIBED UNDER SECTION 200 OF THE INCOME TAX ACT AND AS SUCH THE E XPENDITURE ON ACCOUNT OF SUCH PAYMENTS WAS NOT ELIGIBLE FOR DEDUCTION UNDER SECTI ON 40(A)(IA) OF THE ACT. THE AO THEREAFTER ENHANCED THE INCOME OF THE ASSESSEE INVO KING PROVISIONS UNDER SECTION 154 OF THE ACT WHICH GIVES JURISDICTION TO THE INCOME T AX AUTHORITIES FOR RECTIFICATION OF MISTAKES APPARENT ON RECORD. 2. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [HE REINAFTER REFERRED TO AS CIT(A)] THOUGH HELD THAT THE INCOME COULD NOT BE ENHANCED B Y THE AO ON THIS ACCOUNT UNDER SECTION 154 OF THE ACT AND SET ASIDE THE RECTIFICAT ION ORDER OF THE AO. HOWEVER, HE SUSTAINED THE ADDITIONS MADE BY THE AO INVOKING HIS OWN JURISDICTION UNDER SECTION 251(2) OF THE ACT WHICH PROVIDES THAT THE COMMISSIO NER (APPEALS) MAY CONSIDER AND DECIDE ANY MATTER IN THE PROCEEDINGS BEFORE HIM NOT WITHSTANDING THAT SUCH MATTER WAS NOT RAISED BEFORE HIM BY THE APPELLANT. HE THEREFOR E RELYING UPON SPECIAL BENCH DECISION OF THE ITAT IN THE CASE OF M/S BHARTI SHIPYARD PVT . LTD. ITA NO. 2404/MUM/2009 HELD THAT THE AMENDED SECTION 40(A)(IA) AS AMENDED VIDE FINANCE ACT 2010, WHICH PROVIDES THAT EXPENDITURE ON WHICH TDS WAS MADE BUT PAID IN THE GOVT. TREASURY BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME WILL BE AN ALLO WABLE DEDUCTION, IS PROSPECTIVE IN NATURE AND AS SUCH IS OPERATIVE W.E.F. 1.4.2010. SINCE TH E INSTANT CASE OF THE ASSESSEE WAS PERTAINING TO A.Y. 2005-06, HENCE THE DEFAULT WAS C OMMITTED BY THE ASSESSEE IN TERMS OF PROVISIONS OF SECTION 200(1) OF THE ACT AND AS SUCH HE UPHELD THE ENHANCEMENT HOLDING THAT THE ASSESSEE DEPOSITED THE TDS BEYOND THE DATE PRESCRIBED UNDER SECTION 200 OF THE INCOME TAX ACT AND AS SUCH THE EXPENDITURE ON A CCOUNT OF SUCH PAYMENTS WAS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 40(A)(IA) OF T HE ACT. BEFORE US, THE LD. REPRESENTATIVE OF THE ASSESSEE AT THE OUTSET HAS SUBMITTED THAT NO W THE POSITION OF LAW HAS BEEN SETTLED BY THE VARIOUS HIGHER COURTS THAT THE OPERATION OF AMENDED SECTION 40(A)(IA) IS RETROSPECTIVE IN NATURE. HE HAS RELIED UPON VARIOUS CASE LAWS IN THIS RESPECT. IT CAN BE OBSERVED THAT THE CO-ORDINATE BENCH OF THIS TRIBUN AL IN THE CASE OF BABULAL LODAYA VS. ITO IN ITA NO. 4681/MUM/2012 FOR A.Y. 2007-08 DEC IDED ON 27.02.2013, WHILE DEALING WITH THE MATTER OF APPLICATION OF AMENDED PROVISION S OF SECTION 40(A)(IA), RELYING UPON . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 7 THE AUTHORITY OF CALCUTTA HIGH COURT STYLED AS CIT VS. VIRGIN CREATIONS (GA 3200/2011 DATED 23.11.2011) HAS HELD THAT THE AMENDMENT TO SE CTION 40(A)(IA) MADE BY FINANCE ACT, 2010 IS TO BE APPLIED WITH RETROSPECTIVE EFFEC T BEING CURATIVE IN NATURE, OBSERVING AS UNDER: '3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATE RIAL ON RECORD. AN AMENDMENT IS RETROSPECTIVE ONLY WHERE IT IS EXPRESS ED TO BE SO OR BY NECESSARY IMPLICATION. THE LD. CIT(A) DID NOT FIND IT AS SO, SO THAT HE CONFIRMED THE DISALLOWANCE IN TERMS OF THE EXTANT PROVISION OF S. 40(A)(IA). THIS ISSUE, HOWEVER, HAS TRAVELLED BEFORE THE HIGHER COURTS OF LAW. THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT V. VIRGIN CREATIONS, EXERCISING ITS CIVIL APPELLATE JURISDICTION (IN GA 3200/2011 DATED 23/11/2011 COPY ON RECORD) HAS HELD THAT THE AMENDMENT TO SECTION 40(A)(IA) BY THE FINANCE ACT, 2010 IS TO BE CONSIDERED AS RETROSPECTIVE IN- AS-MUCH AS IT IS ONLY TOWARD MITIGATING A HARDSHIP AND, THUS, IS TO BE CONSIDERED AS CURATIVE IN NATURE. IN SO DOING, THE HON'BLE HIG H COURT INVOKED THE PRINCIPLES EMPHASIZED BY THE APEX COURT IN THE CASE OF ALLIED MOTORS (P.) LTD. V. CIT (1997) 224 ITR 677 (SC) AND R.B.JODHA MAL KUTHIALA V. CIT (1971) 82 ITR 570 (SC). IN VIEW THEREOF, WE FIND THE ASSESSEE'S CLAIM AS MAINT AINABLE. THERE IS NO FINDING BY EITHER OF THE AUTHORITIES BELOW OF THE PAYMENT OF T HE TDS FOR RS.15,21,507/- BY 10.10.2007, EVEN AS CLAIMED BY THE ASSESSEE BEFORE US WITH REFERENCE TO TWO CHALLANS. SUBJECT TO THE SAID VERIFICATION, WE DIRE CT THE ALLOWANCE OF THE ASSESSEE'S CLAIM TOWARD COMMISSION PAYMENT TO THE E XTENT HE EXHIBITS PAYMENT OF CORRESPONDING TDS BY THE DUE DATE OF FURNISHING THE RETURN FOR THE RELEVANT YEAR. NEEDLESS TO ADD, TO THE EXTENT THE PAYMENT HA S NOT BEEN MADE, THE ASSESSEE RESERVES THE RIGHT TO CLAIM THE BALANCE CO MMISSION IN THE YEAR OF PAYMENT OF THE CORRESPONDING TDS. THAT IS, THERE CO ULD NEITHER BE ANY DOUBLE ALLOWANCE OR DISALLOWANCE. WE DECIDE ACCORDINGLY.' 3. IT CAN FURTHER BE OBSERVED THAT SIMILAR FINDINGS HAVE BEEN GIVEN BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF ROYAL BUILDERS ITA NO.520 OF 2012 DECIDED ON 11.02.2013 WHILE RELYING UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF H.S. MOHINDRA TRADERS. THE ISSUE INVOLVED IN T HE PRESENT APPEAL IS SQUARELY COVERED WITH THE ABOVE NOTED DECISIONS OF THE HONBLE HIGH COURTS AS WELL OF THE CO-ORDINATE BENCH OF THE TRIBUNAL. RESPECTFULLY FOLLOWING THE S AID DECISIONS, THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AND THEREBY THE ADDITION MAD E BY THE AO AND FURTHER CONFIRMED BY THE CIT(A) IS HEREBY ORDERED TO BE DELETED. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY ALLOWED. IN THIS VIEW OF THE SITUATION, THIS GROUND OF THE A SSESSEE IS ALLOWED. 6. APROPOS GROUND NO.3, THIS GROUND IS ALSO PART OF THE AGGREGATE AMOUNT OF RS.3,17,01,630/- AND PERTAIN TO PROFESSIONAL FEES A ND PROFESSIONAL CHARGES. THE SEGREGATION OF THE AMOUNT HAS ALREADY BEEN REPR ODUCED IN THE ABOVE PART OF THIS ORDER. THESE AMOUNTS ARE A SUM OF RS.93,450 /- AND RS.1,10,250/-. THE DISALLOWANCE IS MADE ON THE GROUND THAT TDS HAS NO T BEEN DEDUCTED. THE ADDITION WAS CHALLENGED IN THE APPEAL FILED BEFOR E LD. CIT(A). LD. CIT(A) HAS . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 8 DELETED A SUM OF RS.93,450/-. HOWEVER, HE HAS UPHE LD THE ADDITION OF RS.1,10,250/-. THE ASSESSEE IS AGGRIEVED, HENCE, HAS FILED AFOREMENTIONED GROUND. 6.1 LD. AR HAS CARRIED US THROUGH THE DETAILS FIELD IN THE PAPER BOOK. AT PAGE-61 THE TDS CERTIFICATE IS SUBMITTED WITH REG ARD TO PAYMENT OF RS.93,450/-. AT PAGE 112 THE DETAIL IS SUBMITTED R EGARDING PROFESSIONAL CHARGES WHICH IS A TOTAL SUM OF RS.1,10,250/- COMPR ISING OF TWO AMOUNTS OF RS.16,800/- AND RS.93,450/-. IT WAS SUBMITTED BY L D. AR THAT TOTAL PAYMENT MADE BY THE ASSESSEE WAS A SUM OF RS.1,10,250/-, OU T OF WHICH TDS WAS MADE IN RESPECT OF A SUM OF RS.93,450/-. ACCORDING TO L D. AR NO TDS WAS REQUIRED TO BE DEPOSITED ON THE OTHER AMOUNT OF RS.16,800/- AS THE SAME WAS BELOW RS.20,000/-. THUS IT WAS SUBMITTED BY LD. AR THAT LD. CIT(A) DID NOT APPRECIATE THE FACTUAL ASPECT AND THOUGH HAS OBSERV ED THAT ASSESSEE HAS DEDUCTED TDS ON PAYMENT OF RS.93,450/- BUT HAS SUST AINED THE ENTIRE ADDITION OF RS.1,10,250/-. LD. AR SUBMITTED THAT I T IS A CASE OF DOUBLE ADDITION WHICH IS REQUIRED TO BE DELETED. 6.2 ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY LD. CIT(A). 6.3 WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTE NTIONS HAVE CAREFULLY BEEN CONSIDERED. THE TOTAL PAYMENT MADE BY THE ASS ESSEE WITH REGARD TO PROFESSIONAL CHARGES IS A SUM OF RS.1,10,250/-. TH ERE IS A MISTAKE IN THE ASSESSMENT ORDER ITSELF THAT TWO ADDITIONS ARE MA DE ONE OF THE TOTAL AMOUNT AND OTHER OF THE AMOUNT OF RS.93,450/-. ON RS.93,4 50/- TDS HAS BEEN DEDUCTED. ON THE OTHER AMOUNT OF RS.16,800/- TAX I S NOT REQUIRED TO BE DEDUCTED. THEREFORE, NO ADDITION CAN BE SUSTAINED ON THIS ACCOUNT. ACCORDINGLY, THE SAME IS DELETED AND THIS GROUND OF THE ASSESSEE ALLOWED. . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 9 7. APROPOS GROUND NO.4, THIS AMOUNT RELATES TO PAYM ENT MADE IN THE EARLIER YEAR I.E. A.Y. 2005-06 WHICH WAS DISALLOWED ON ACCOUNT OF NON-PAYMENT OF TDS DURING THE FINANCIAL YEAR. INITIALLY THE A SSESSMENT WAS FRAMED IN RESPECT OF A.Y 2005-06 VIDE ORDER DATED 31/12/2007, PASSED UNDER SECTION 143(3) OF THE ACT. LATER ON VIDE ORDER PASSED UNDE R SECTION 154 OF THE ACT DATED 24/6/2009 THE AO ADDED THE IMPUGNED SUM OF RS .88,44,863/- ON ACCOUNT OF NON-PAYMENT OF TDS UNDER THE PROVISIONS OF SECTION 40(A)(IA), THUS REVISING THE INCOME OF THE ASSESSEE TO RS.1,22,92,2 57/- IN PLACE OF ORIGINALLY ASSESSED INCOME OF RS.34,42,394/-. COPY OF ORDER PA SSED UNDER SECTION 154 IS PLACED AT PAGE 116 OF THE PAPER BOOK. SUCH ORDER W AS SUBJECT MATTER OF APPEAL ULTIMATELY BEFORE THE TRIBUNAL, WHICH HAS BEEN DECI DED BY THE TRIBUNAL VIDE ITS ORDER DATED 31/1/2014 PASSED IN ITA NO.2231/MUM/20 12. THE RELEVANT PORTION OF THE SAME HAS ALREADY BEEN REPRODUCED IN THE ABOVE PART OF THIS ORDER. THE ADDITION HAS BEEN DELETED BY THE TRIBU NAL ON THE GROUND THAT TDS PROVISIONS WERE NOT APPLICABLE TO A.Y 2005-06. ACC ORDINGLY, THE SAID ADDITION WAS DELETED. THEREFORE, IT IS THE CASE OF THE ASSE SSEE THAT SINCE ADDITIONS HAS ALREADY BEEN DELETED AND IT IS AGAIN MADE DURING THE YEAR UNDER CONSIDERATION ON ACCOUNT OF NON-PAYMENT OF TDS THE SAME IS LIABLE TO BE DELETED HERE ALSO. 7.1 WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE AN D WE FOUND THAT THIS YEAR THIS AMOUNT WAS ADDED BY THE AO ONLY ON THE GR OUND THAT AFTER COMPLETION OF THE ASSESSMENT FOR A.Y 2005-06 THERE WAS AN AUDIT OBJECTION, ACCORDING TO WHICH THE TDS WAS NOT DEDUCTED BY THE ASSESSEE ON SUCH PAYMENTS. IT HAS BEEN MENTIONED IN THE IMPUGNED AS SESSMENT ORDER THAT NOTICE UNDER SECTION 154 HAS BEEN ISSUED FOR THAT Y EAR AND SINCE THERE WAS NO RESPONSE OF THE ASSESSEE WITH REGARD TO THAT NOTICE , THE SAME IS ADDED TO THE INCOME OF THIS YEAR. IN THIS VIEW OF THE SITUATION WE ARE OF THE OPINION THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE AFOREMENTIONED ORDER OF THE TRIBUNAL. ACCORDINGLY, THE ADDITION IS DELETED. . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 10 8. APROPOS GROUND NO.5, ACCORDING TO LD. AR THERE I S A TYPOGRAPHICAL MISTAKE IN THE ORDER PASSED BY LD. CIT(A). THIS AM OUNT IS ALSO PART OF THE AGGREGATE AMOUNT OF RS.3,17,01,630/- DESCRIBED AS H IRE CHARGES. A.O IN THE REMAND REPORT ITSELF HAS ADMITTED THAT ASSESSEE IS AN INDIVIDUAL AND PROVISIONS OF SECTION 194C ARE NOT APPLICABLE TO THE CASE OF T HE ASSESSEE AS THE SAME HAS COME INTO FORCE W.E.F. 1/4/2007. LD. CIT(A) HAS AL SO ACCEPTED SUCH POSITION. HOWEVER, WHILE DESCRIBING THE AMOUNT TO BE DELETED IT HAS INCORRECTLY BEEN MENTIONED AS A SUM OF RS.16,40,904/-, WHEREAS A CCORDING TO ASSESSEE THE ENTIRE ADDITION SHOULD BEEN DELETED. 8.1 WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY C ONSIDERED THEIR SUBMISSIONS. WE ARE IN AGREEMENT WITH THE SUBMISSI ONS OF THE ASSESSEE THAT SO AS IT RELATES TO HIRE CHARGES THE PROVISIONS COU LD NOT BE APPLIED TO INDIVIDUAL IN RESPECT OF ASSESSMENT YEAR 2006-07 AS THE RELEVA NT AMENDMENT HAS BEEN BROUGHT TO THE STATUTE W.E.F. 1/7/2007. THIS POSIT ION HAS ALSO BEEN ACCEPTED BY LD. CIT(A). HOWEVER WHILE DESCRIBING THE FIGU RE OF RELIEF IT HAS BEEN WRONGLY STATED AS RS.16,40,904/- AS IT SHOULD HAVE BEEN A FIGURE OF RS.31,64,904/-. ACCORDINGLY, WE ALLOW THIS GROUND AND ENTIRE ADDITION OF RS.31,64,904/- IS DELETED. THIS GROUND IS ALLOWED. 9. APROPOS GROUND NO.6, THIS ADDITION HAS BEEN SUST AINED BY LD. CIT(A) ON THE GROUND THAT SUCH PAYMENT RELATES TO ACTIVITY OF ILLEGAL MINING/EXCAVATING. AS AGAINST THIS IT IS THE CASE OF LD. AR THAT IT IS A PAYMENT MADE IN ROUTINE MANNER IN CONNECTION WITH DIGGING OF THE SOIL FOR CONSTRUCTION OF ROAD. ACCORDING TO LD. AR THE ACTIVITY OF THE ASSESSEE IS NOT ILLEGAL IN NATURE. 9.1 AS AGAINST ABOVE ARGUMENTS OF LD. AR IT IS TH E CASE OF LD. DR THAT ILLEGAL MINING IS AN OFFENCE, THEREFORE, THE ADDITION HAS RIGHTLY BEEN SUSTAINED. . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 11 9.2 WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTEN TIONS HAVE CAREFULLY BEEN CONSIDERED. LD. AR DID NOT SUBMIT ANY DETAIL REGAR DING CHARGING OF THIS AMOUNT. IN ABSENCE OF ANY DETAILS THE CASE OF THE ASSESSEE CANNOT BE ACCEPTED. HOWEVER, DURING THE COURSE OF HEARING IT WAS SUBMI TTED BY LD. AR THAT ASSESSEE WILL PLACE ON RECORD ALL THE REQUIRED DETA ILS AND MATTER MAY BE RESTORED BACK TO THE FILE OF AO FOR ASCERTAINING TH E NATURE OF THE PAYMENT. ACCORDINGLY, ACCEPTING THE REQUEST OF LD. AR WE RES TORE THIS ISSUE TO THE FILE OF AO FOR RE-ADJUDICATION AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF PLACING ALL RELEVANT MATERIAL ON RECORD. WE DIRECT ACCORDINGLY. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFOR ESAID. 10. APROPOS GROUND NO.7, IT MAY BE MENTIONED HERE THAT THIS AMOUNT RELATES TO GROUND NO.7 RAISED BEFORE LD. CIT(A) IN WHICH SEVERAL DISALLOWANCES WERE TAKEN TOGETHER NAMELY SALARY AND WAGES OF RS.1,65,0 00/-; GENERAL EXPENSES RS.20,000/-; VEHICLE REPAIR AND INSURANCE RS.7,000/ -; TELEPHONE AND POSTAGE RS.13,000/-; OFFICE EXPENSES RS.27,000/-; STAFF WEL FARE EXPENSES RS.20,000/-; DONATION RS.3177/- ENVIRONMENTAL CESS , EPR, LABOUR SECURITY, CRETCH FACILITY RS.20,000/-; AND INCLUDING PENALTY AND FIND RS.87,6 00/- ALREADY DEALT IN GROUND NO.6, RS.1,53,518/- BEING INTEREST ON MOBILI ZATION ADVANCE FOR WHICH RELIEF HAS ALREADY BEEN GRANTED TO THE ASSESSEE AND THIS GRIEVANCE OF THE ASSESSEE IS REPRESENTED IN GROUND NO.9, WHICH HAS N OT BEEN PRESSED BY LD. AR AND RS.2,72,000/- ON ACCOUNT OF SITE EXPENSES, WHIC H HAS BEEN UPHELD BY LD. CIT(A). WHILE DEALING WITH THIS GROUND LD. CIT(A) HAS COLLECTIVELY DISPOSED OF THIS GROUND AT PAGE 15 OF HIS OF HIS ORDER EXCEPT THE DISALLOWANCE OF RS.2,72,000/- OF SITE EXPENSES. THE OBSERVATION OF LD. CIT(A) ARE AS UNDER: (V) OTHER MISCELLANEOUS EXPENSES I.E. GENERAL EXPE NSES, MOTOR CAR INSURANCE, TELEPHONE EXPENSES, STAFF WELFARE EXPENSES, OFFICE EXPENSES AND OTHER EXPENSES, ENVIRONMENT CESS, EPR PAID, LABOUR SECURITY ETC. TH E A.O. HAS NOT COMMENTED FOR THE SAME. AS I UNDERSTAND THAT IN ABSENCE OF ANY AD VERSE REPORT FOR THE SAME DISALLOWANCES CANNOT BE SUSTAINED AND HENCE ADDITIO NS MADE UNDER THESE HEADS ARE DELETED. THE GROUND NO. 7 IS PARTLY ALLOWED. . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 12 10.1 IT IS THE CASE OF THE LD. AR THAT THE GROUND R ELATING TO DISALLOWANCE OF SALARY AND WAGES HAS BEEN OVER LOOKED BY LD. CIT(A) . HE SUBMITTED THAT IN THE REMAND REPORT THERE WAS NO ADVERSE COMMENT BY THE A O ON ACCOUNT OF SALARY AND WAGES EXPENSES ALSO. THEREFORE, HE PLEADED THA T THIS ADDITION SHOULD BE DELETED. 10.2 ON THE OTHER HAND, LD. DR RELIED UPON THE ORDE R PASSED BY LD. CIT(A). 10.3 WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTE NTIONS HAVE CAREFULLY BEEN CONSIDERED. WE HAVE GONE THROUGH THE CONTENTS OF THE REMAND REPORT. ON THE ISSUE OF SALARY AND WAGES THE AO HAS NOT ADVERSELY COMMENTED , THEREFORE, THE SAME LOGIC WILL APPLY TO THIS EXPENSES ALSO. ACCOR DINGLY, WE DELETE THIS ADDITION. 11. APROPOS GROUND NO.8, IT IS OBSERVED FROM THE O RDER OF LD. CIT(A) THAT THIS ISSUE HAS BEEN ADJUDICATED TWICE AND FOR THE SAKE OF CLARITY THE OBSERVATIONS OF LD. CIT(A) WITH REGARD TO THIS ISSU E ARE REPRODUCED BELOW: DISALLOWANCE OF CONTRACT EXPENSES A. THE A.O. HAS STATED THAT THE APPELLANT HAS NOT FURNISHED ANY SUPPORTING EVIDENCE OR BILLS OR VOUCHERS. B. THE APPELLANT HAS SAID THAT THESE ARE EXPENSES R EFLECTED TO BUSINESS AND ALSO PAID BY CHEQUE AS WELL AS CASH OUT OF WHICH DISALLO WED 20% EXPENSES STRAIGHTWAY. C.I HAVE GONE THROUGH THE SAME. IT IS DENIED BY THE APPELLANT THAT SAME ARE BUSINESS EXPENSES AND THE AMOUNT ALSO IS NOT VERY H UGE. IN VIEW OF THIS THAT THERE ARE CASH EXPENSES AS WELL AS PERSONAL ELEMENT INVOLVED, THE DISALLOWANCES ARE RESTRICTED TO 10% AGAINST 20% FROM THIS HEAD. (IV) DISA1LOWANCE OF SITE EXPENSES - RS 2,72,000/- A. THE A.O HAS STATED THAT THE APPELLANT HAS NOT FURNISHED ANY SUPPORTING EVIDENCE OR BILLS. . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 13 B. THE APPELLANT HAS STATED THAT THESE ARE SITE EX PENSES OF RS. 9,02,800/-, MURRUM AND WATER CHARGES RS.3,41,968/- AND FIREWOOD FOR ASPHALT PLANT RS. 1,18,220/- IN ALL TOTALING TO RS. 13,62,988/- C. I HAVE GONE THROUGH THESE DETAILS. IT IS ROT DEN IED THAT THESE ARE EXPENSES NOT SUPPORTED BY BILLS OR VOUCHERS AND MOSTLY INCURRED IN CASH. IN VIEW OF THIS, 20% DISALLOWANCES MADE ARE UPHELD. DISALLOWANCE OF RS. 2,72,000/- IS UPHELD. THE OBSERVATION OF THE A.O IN THE REMAND REPORT REG ARDING THIS ISSUE IS ALSO REPRODUCED BELOW: DISALLOWANCE OF CONTRACT EXPENSES: THE ASSESSEE HAS CLAIMED AN AMOUNT OF RS.13,62,988/ - TOWARDS CONTRACT EXPENSES. DURING THE ASSESSMENT PROCEEDINGS AS WE LL AS REMAND PROCEEDINGS THE ASSESSEE HAS NOT FURNISHED ANY SUPPORTING EVIDE NCE / BILLS OR VOUCHERS IN RESPECT OF EXPENSES. THEREFORE, DISALLOWANCE OF 20 % OF THE CONTRACT EXPENSES I.E. RS.2,72,000/- IS JUSTIFIED AND THE ADDITION MAY BE SUSTAINED. IN THE ASSESSMENT ORDER THIS ISSUE IS DEALT WITH BY THE A.O UNDER THE HEAD CONTRACT EXPENSES AT PAGE 5 OF THE ASSESSMENT ORD ER. IT HAS BEEN OBSERVED BY THE AO THAT ASSESSEE HAS CLAIMED VARIOUS CONTRA CT EXPENSES AS GIVEN BELOW: I. SITE EXPENSES RS. 9,02,800/- II. MURRUM AND WATER CHARGES RS. 3,41,968/- III. FIEWOOD FOR PLANT RS. 1,18,220/- ACCORDINGLY, AS THE ASSESSEE DID NOT FILE DETAILS O F THESE EXPENSES AND JUSTIFICATION OF THE SAME AND ALSO DID NOT PRODUCE VOUCHERS AND BILLS AN AMOUNT OF RS.2,72,000/- WAS DISALLOWED WHICH IS ROU GHLY 20% OF THE TOTAL EXPENDITURE. AS IT CAN BE SEEN FROM THE AFOREMENTI ONED ORDER PASSED BY LD. CIT(A) THE SAME VERY DISALLOWANCE HAS BEEN CONSIDER ED TWICE, ONCE UNDER THE HEAD DISALLOWANCE OF SITE EXPENSES RS.2,72,000/ -. THE DISCUSSION UNDER THE HEAD DISALLOWANCE OF CONTRACT EXPENSES DOES NOT SPE CIFY THE AMOUNT AS AGAINST THAT UNDER THE HEAD DISALLOWANCE OF SITE EXPENSES THE AMOUNTS ARE DESCRIBED. HOWEVER, THE FACT REMAIN THAT EVEN DURING THE COURS E OF REMAND PROCEEDINGS THE ASSESSEE DID NOT SUBMIT FURTHER EVIDENCE. 11.1 IN THIS VIEW OF THE SITUATION AFTER HEARING BO TH THE PARTIES, WE ARE OF THE OPINION THAT IT WILL SERVE THE INTEREST OF JUSTICE IF THE DISALLOWANCE IS RESTRICTED . / ITA NO.2232/MUM/2012 / ASSESSMENT YEAR 2006-07 14 TO 10%. ACCORDINGLY, WE RESTRICT THE DISALLOWANCE TO A SUM OF RS.1,36,000/- AND THIS GROUND IS DISPOSED OF AND IS CONSIDERED TO BE PARTLY ALLOWED. 12. APROPOS GROUND NO.9, IT HAS ALREADY BEEN MENTI ONED THAT APPROPRIATE RELIEF HAS ALREADY BEEN GIVEN TO THE ASSESSEE IN OT HER PROCEEDINGS, THEREFORE, ASSESSEE DID NOT PRESS THIS GROUND. ACCORDINGLY, T HIS GROUND IS DISMISSED AS BEING NOT PRESSED. 13. IN THE RESULT, FOR STATISTICAL PURPOSES, THE AP PEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 19/03/201 4 , ( *+ - ./ 19/03/2014 + ( 0 1 SD/- SD/- ( . / D.KARUNAKARA RAO ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; . DATED 19/03/2014 , , , , ( (( ( %)2 %)2 %)2 %)2 32 ) 32 ) 32 ) 32 ) / COPY OF THE ORDER FORWARDED TO : 1. !$ / THE APPELLANT 2. %&!$ / THE RESPONDENT. 3. 4 ( ) / THE CIT(A)- 4. 4 / CIT 5. 250 %) , , / DR, ITAT, MUMBAI 6. 0 6 / GUARD FILE. , , , , / BY ORDER, &2) %) //TRUE COPY// 7 77 7 / 8 8 8 8 ' ' ' ' (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS