ACIT 4(2)(1), MUMBAI V. VIMLA SURESH JAJOO, MUMBAI

ITA 280/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6898 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 13-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Keywords: Business income; Rule of consistency; Question of law; Cost of acquisition
• Section: 143(3); 263

Judgement Text

1 ITA280/MUM/2017 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI MAHAVIR SINGH(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) I.T.A NO.280/MUM/2017 (ASSESSMENT YEAR: 2013-14) ACIT 4(2)(1), MUMBAI VS VIMLA SURESH JAJOO, 7 TH FLOOR VAIBHAV CHAMBERS, BANDRA KURLA COMPLEX, OPP. INCOME-TAX OFFICE BANDRA (E), MUMBAI-51 PAN : ADAPJ8747J APPELLANT RESPONDENT APPELLANT BY SMT. POOJA SWAROOP RESPONDENT BY SMT. KOMAL MOTA DATE OF HEARING 18-06-2018 DATE OF PRONOUNCEMENT 20-06-2018 O R D E R PER G MANJUNATHA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAI NST THE ORDER OF THE CIT(A)-9, MUMBAI DATED 25-10-2016 AND IT PERTAINS T O AY 2013-14. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. 'ON THE FACTS AND'IN THE CIRCUMSTARICES''OJ'TFI ,E.;.CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING .THE DISALLOWANCE MADE ; BY THE AO OF SHORT TERM CAPITAL GAIN AMOUNTING TO RS. 1,01,46,749/- AS -BUS INESS INCOME' 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF INVESTMENT IN DERIVATIVE S, FILED HER RETURN OF INCOME FOR AY 2013-14 ON 17-09-2013 DECLARING TOTAL INCOME OF 2 ITA280/MUM/2017 RS.65,63,760. THE CASE HAS BEEN SELECTED FOR SCRUT INY AND THE ASSESSMENT HAS BEEN COMPLETED U/S 143(3) OF THE ACT ON 31-12-2015 DETERMINING TOTAL INCOME AT RS.1,67,10,510 BY ASSES SING PROFIT DERIVED FROM PURCHASE AND SALE OF SHARES UNDER THE HEAD IN COME FROM BUSINESS OR PROFESSION AS AGAINST ASSESSEES ADMISSION UNDE R THE HEAD INCOME FROM SHORT TERM CAPITAL GAIN. 3. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREF ERRED APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE ASSESSEE HAS FILED DETAILS OF PURCHASE AND SALE OF SHARES IN SHARES AND MUTUAL FU NDS TO ARGUE THAT SHE IS BASICALLY AN INVESTOR AND WHATEVER SURPLUS D ERIVED FROM INVESTMENT HAS BEEN RIGHTLY TREATED AS INCOME FROM CAPITAL GAINS. THE ASSESSEE FURTHER SUBMITTED THAT THE AO HAS TREATED PROFIT DERIVED FROM INVESTMENT ACTIVITY UNDER THE HEAD INCOME FROM BUS INESS WITHOUT POINTING OUT ANY INSTANCE OF REPEATED TRANSACTIONS IN PARTICULARS SCRIPS, VOLUMINOUS TRANSACTIONS IN BUYING AND SELLING ONLY ON THE REASON THAT THE ASSESSEE HAS BORROWED FUNDS TO FUND HER ACTIVITY FO R PURCHASE AND SALE OF SHARES. BUT FACT REMAINS THAT MERELY FOR THE RE ASON THAT THE ASSESSEE HAS BORROWED MONEY FOR INVESTMENT ACTIVITY, THE BAS IC NATURE OF INVESTMENT ACTIVITY CANNOT BE CHANGED, MORE PARTICU LARLY, WHEN THE ASSESSEE HAS PROVED BEYOND DOUBT THAT HER ACTIVITY IS ONLY INVESTMENT ACTIVITY, BUT NOT TRADING IN SHARES AND SECURITIES. THE CIT(A), AFTER 3 ITA280/MUM/2017 CONSIDERING RELEVANT SUBMISSIONS OF THE ASSESSEE AN D ALSO BY FOLLOWING THE DECISION OF ITAT, MUMBAI BENCH IN ASSESSEES OW N CASE FOR AYS 2005-06 TO 2008-09 HELD THAT INCOME FROM SALE OF SH ARES IS BEING CONSISTENTLY ASSESSED BY THE DEPARTMENT UNDER THE H EAD CAPITAL GAINS DURING THE EARLIER ASSESSMENT YEARS DURING THIS YEA R ALSO THERE IS NO REASON FOR THE AO TO CHANGE THE HEAD OF INCOME WHEN THE FACTUAL POSITION CONTINUES TO BE THE SAME. THE RELEVANT PO RTION OF THE ORDER OF CIT(A) IS EXTRACTED BELOW:- 5.3. I HAVE CONSIDERED THE STAND OF THE AO AS WELL AS THE SUBMISSIONS OF THE APPELLANT. DURING THE ASST YEAR 2005-2006, 2006-200 7, 2008-2009 AND 2011- 12 THE ASSESSING OFFICER HAS ASSESSED THE INCOME FR OM SHORT TERM CAPITAL GAINS AS BUSINESS INCOME WHICH WAS REVERSED BY THE CIT(APPEALS) AND BY ITAT. THE LD. AR PRODUCED THE COPIES OF THE ORDER O F ITAT DISMISSING THE APPEAL BY THE DEPARTMENT FOR ASST YEAR 2005-2006, 2 006-2007 AND 2008-2009. FURTHER, AN ACTION U/S. 263 WAS INITIATED BY THE CI T- 4 MUMBAI FOR ASST YEAR 2003-2004 FOR TREATING THE CAPITAL GAINS AS BUSINES S INCOME. THE HON'BLE ITAT HAS QUASHED THE ORDER U/S. 263 OF CIT- 4 MUMBA I FOR A.Y. 2003-04. THE APPELLANT FILED THE COPIES OF RELEVANT ITAT ORD ER. THE HON'BLE ITAT WHILE QUASHING THE ORDER U/S 263 O F CIT - 4 MUMBAI HAS OBSERVED THAT 'THE INCOME FROM SALE OF SHARES IS BE ING CONSISTENTLY ASSESSED BY THE DEPARTMENT UNDER THE HEAD CAPITAL GAINS DURI NG THE EARLIER ASSESSMENT YEARS AND DURING THE PRESENT YEAR ALSO THE ASSESSIN G OFFICER HAD ADOPTED THE SAME VIEW. WHEN THE FACTUAL POSITION CONTINUES TO B E SAME, THERE HAS TO BE CONSISTENCY OF APPROACH BY THE DEPARTMENT AND MEREL Y ON THAT .GROUND IT CANNOT BE SAID THAT THE ASSESSING OFFICER'S ORDER W AS ERRONEOUS.' FURTHER THE HON'BLE BOMBAY HIGH COURT IN APPELLANT' S OWN CASE HAS VIDE ITA NO. 1040 OF 2009 HAS DISMISSED THE APPEAL OF THE RE VENUE AGAINST THE ORDER OF ITAT QUASHING THE ORDER OF CIT U/S. 263 FOR WANT OF SUBSTANTIAL QUESTION OF LAW FOR A.Y. 2003-04. THE APPELLANT PRODUCED THE CO PY OF RELEVANT ORDER ALSO. SINCE THE ISSUE HAS BEEN DECIDED BY HON'BLE ITAT AS WELL AS HON'BLE BOMBAY HIGH COURT IN APPELLANTS OWN CASE IN EARLIER ASSESS MENT YEARS, THE ISSUE IS TO BE TREATED AS COVERED IN FAVOUR OF THE APPELLANT. A CCORDINGLY, THE AO IS DIRECTED TO TREAT THE CLAIM OF THE APPELLANT AS INC OME FROM CAPITAL GAIN ON SHARE AND UNITS OF MUTUAL FUNDS AND NOT AS BUSINESS INCOM E AND CHARGE INCOME TAX 4 ITA280/MUM/2017 ON THE APPELLANT AS PER INCOME TAX LAW. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSEDE THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET, THE LD.AR FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF ITAT, J BENCH IN ASSESSEES OWN CASE FOR AY 2011-12 IN ITA NO.515/MU M/2015 DATED 16-12-2016 WHERE THE ITAT, UNDER SIMILAR CIRCUMSTAN CES, BY FOLLOWING THE EARLIER DECISION OF ITAT FOR AYS 2006-07 TO 200 8-09 HELD THAT INCOME FROM SALE OF SHARES IS TO BE ASSESSED AS INCOME FR OM SHORT TERM CAPITAL GAIN AND NOT AS BUSINESS INCOME. THE LD.DR PRESE NT FOR THE REVENUE FAIRLY ACCEPTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF TRIBUNAL FOR EARLIER YEARS. WE FIND TH T THE CO-ORDINATE BENCH OF ITAT IN ITA NO.515/MUM/2015 FOR AY 2011-12 HAS C ONSIDERED SIMILAR ISSUE AND AFTER ANALYISING THE FACTS OF THE CASE DI RECTED THE AO TO ASSESS PROFIT DERIVED FROM SALE AND PURCHASE OF SHA RES TO BE ASSESSED AS INCOME FROM SHORT TERM CAPITAL GAIN. THE RELE VANT PORTION OF THE ORDER IS EXTRACTED BELOW:- 5. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE CO-ORDINATE BENCH DECISION IN ASSESSEE'S OWN CASE AND ALSO ONE MR. SURESH K. JAJOO WHICH IS THE COMBINED ORDER OF THE CO-ORDINATE BENCH RELA TING TO BOTH THESE ASSESSEES AND FOUND THAT THE CO-ORDINATE BENCH HELD THAT THE GAIN ON SALE OF SHARES IN BOTH THESE ASSESSEE'S CASES HAS TO BE ASSESSED UNDE R THE HEAD 'SHORT/LONG TERM CAPITAL GAINS' AND NOT UNDER THE HEAD 'BUSINESS INC OME'. WE OBSERVE FROM THE ORDER OF THE CO-ORDINATE BENCH THAT IN THE CASE OF 'SURESH K. JAJOO' IN ITA NO.442 OF 2008 FOR THE ASSESSMENT YEAR 2005-06 THE CO-ORDINATE BENCH HELD AS UNDER: 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THERE IS NO DISPUTE RELATING TO THE FACT THAT THE ASSESSEE IN EARLIER YEARS HAS BEEN TREATED BY THE D EPARTMENT AS AN INVESTOR. THE ASSESSEE, AS DISCUSSED ABOVE, HAS BEEN CONTINUOUSLY ALLOWED TH E SET OFF OF SHORT TERM CAPITAL LOSS AND 5 ITA280/MUM/2017 LONG TERM CAPITAL LOSS IN THE EARLIER ASSESSMENT YE ARS. THE ASSESSEE HAD BEEN DEALING IN TWO TYPES OF TRANSACTIONS IN SECURITIES. THE ASSESSEE H AD SHOWN INVESTMENTS AND HAD CLAIMED CAPITAL GAINS RELATING TO THE SHARES. IT IS ALSO A FACT ON THE FILE THAT BY THE AMENDMENT BROUGHT BY FINANCE ACT, 2004, BY INSERTION OF PROVISIONS OF SECTION 111A AND SECTION 10(38), THE LEVY OF TAX HAS BEEN REDUCED TO 10% ON SHORT TERM CAPITA L GAINS AND LONG TERM CAPITAL GAINS HAVE BEEN MADE EXEMPT. UNDER THE OLD PROVISIONS OF THE AC T, PROFITS OR GAINS ARISING TO AN INVESTOR FROM THE TRANSFER OF SECURITIES WERE CHARGED DEPENDI NG ON THE PERIOD OF HOLDING OF THE SAID SECURITIES. SHORT TERM CAPITAL GAINS WERE TAXED AT A PPLICABLE RATES (NORMAL RATES) AND LONG TERM CAPITAL GAINS WERE TAXED AT THE RATE OF 20% AFTER AD JUSTING FOR INFLATION BY INDEXING THE COST OF ACQUISITION. FOR LISTED SECURITIES, THE TAX PAYER H AD AN OPTION TO PAY TAX ON LONG TERM CAPITAL GAINS AT THE RATE OF 10% BUT WITHOUT INDEXATION. IN CASE OF TRADER IN SECURITIES, HOWEVER, THE CAPITAL GAINS WERE TAXED AS ANY OTHER NORMAL BUSINES S INCOME. THUS, TAX LIABILITY ON THE INCOME FOR SALE AND PURCHASE OF SHARES AS REGARDS T O SHORT TERM CAPITAL GAINS AND BUSINESS INCOME WAS AT PAR. THE ISSUE OF TREATMENT OF INCOME FROM SHARE TRANSACTION AS SHORT TERM CAPITAL GAINS OR BUSINESS INCOME HAS IN FACT ARISEN AFTER THE AMENDMENT BROUGHT WITH FINANCE ACT, 2004 W.E.F. 01.10.2004. IT IS AN ADMITTED FACT ON THE FILE THAT PRIOR TO THE AMENDMENT WHEN THE TAX OF SHORT TERM CAPITAL GAINS, AS DISCUSSED A BOVE, WAS AT PAR WITH THAT OF BUSINESS INCOME, THE DEPARTMENT HAS BEEN CONSISTENTLY ACCEPT ING THE TREATMENT OF INCOME BY THE ASSESSEE AS CAPITAL GAINS. MERELY BECAUSE THE RATE OF TAX HAS BEEN REDU CED IN RESPECT OF SHORT TERM CAPITAL GAINS AND LONG TERM CAPITAL GAINS HAVE BEEN EXEMPT DURING THE YEAR BY WAY OF AN AMENDMENT TO THE PROVISIONS AS DISCUSSED ABOVE, THA T ITSELF, CANNOT BE A GROUND FOR THE AO TO DEPART FROM ITS CONSISTENT STAND OF TREATING THE AS SESSEE AS AN INVESTOR AND THEREBY TO CHARGE THE INCOME EARNED BY THE ASSESSEE FROM SHARE TRANSACTIO NS AS BUSINESS INCOME. AS DISCUSSED ABOVE, AT THE TIME OF PURCHASE OF SHARES EVEN DURING THE Y EAR BUT PRIOR TO 01.10.2004, THE ASSESSEE WAS NOT GUIDED OR INFLUENCED BY LOWER TAX RATE IN CASE OF SHORT TERM CAPITAL GAINS AS THE RATE FOR BUSINESS INCOME AND SHORT TERM CAPITAL GAINS WAS AT PAR. THE ASSESSEE, HOWEVER, WAS TREATING HIMSELF AS AN INVESTOR AND KEEPING THE SHARES AS IN VESTMENTS IN HIS ACCOUNT IRRESPECTIVE OF THE PROBABLE TAX IMPLICATION AS THERE WERE NO SUCH TAX IMPLICATIONS AS DISCUSSED ABOVE. THE INTENTION OF THE ASSESSEE, WHILE PURCHASING THE SHARE, IS THE IMPORTANT AND GUIDING FACTOR AS TO WHETHER THE SAME WAS PURCHASED WITH AN INTENTION OF INVESTMENT OR FOR TRADING. THE FACTS OF THE CASE AS DISCUSSED ABOVE, CLEARLY REVEAL THAT THE ASSESSEE H AD TREATED THE SHARES AS INVESTMENTS IN HIS ACCOUNT. AS DISCUSSED ABOVE, IF DURING THE MID OF T HE RELEVANT FINANCIAL YEAR, CERTAIN TAX BENEFITS HAVE BEEN GIVEN IN RESPECT OF CAPITAL GAINS, THAT C ANNOT, IN ANY WAY, LEAD TO AN ASSUMPTION OR PRESUMPTION THAT THE INTENTION OF THE ASSESSEE AT T HE TIME OF PURCHASE OF SHARES WAS THAT OF A TRADER AND NOT OF AN INVESTOR. THE TREATMENT OF THE INVESTMENT IN THE ACCOUNT BOOKS OF THE ASSESSEE WAS ALSO A RELEVANT GUIDING FACTOR. THE AO HAS ALSO NOT POINTED OUT AS TO IN WHAT MANNER THE ACTIVITY OF THE ASSESSEE FOR THE YEAR UNDER CONSIDE RATION HAD BEEN CHANGED FROM INVESTOR TO THAT OF A TRADER ESPECIALLY WHEN THE DEPARTMENT HAD CONSIST ENTLY BEEN TREATING HIM AS AN INVESTOR. IT IS ALSO PERTINENT TO MENTION HERE THAT AS DISCUSSED ABOVE, IN SUBSEQUENT ASSESSMENT YEARS THE DEPARTMENT HAS AGAIN ACCEPTED THE ASSESSEE AS AN IN VESTOR. IT IS FOR THE FIRST TIME THAT IN THIS YEAR UNDER CONSIDERATION I.E. A.Y. 2005-06 THE ASSESSEE H AD BEEN TREATED AS A TRADER BECAUSE OF CERTAIN TAX BENEFITS GRANTED TO AN INVESTOR IN SECURITIES B Y WAY OF AMENDMENT IN THE RELEVANT PROVISIONS OF THE INCOME TAX ACT AND SUBSEQUENTLY FOR THE A.YS 2006 -07 TO 2008-09, THE ASSESSEE WAS TREATED AS TRADER. HOWEVER, THE LD. CIT(A) FOLLOWING THE PRI NCIPLE OF CONSISTENCY HAS HELD THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEARS I.E. A.Y. 2005-06 TO A. Y. 2008-09 AS INVESTOR. THOUGH THE PRINCIPLE V, OF RESJUDICATA IS NOT APPLICABLE IN INCOME TAX P ROCEEDINGS BUT THE PRINCIPLE OF CONSISTENCY EQUIRES THAT THE VIEW TAKEN IN ONE YEAR SHOULD BE FOLLOWED IN SUBSEQUENT YEARS UNLESS THE FACTS OR THE LEGAL POSITION JUSTIFY DEPARTURE THERE FROM; RELIANCE CAN BE PLACED IN THIS RESPECT ON THE AUTHORITIE OF THE HON'BLE BOMBAY HIGH COURT IN 'CIT VS. DARIUS PANDOLE' [(2011 330 ITR 485 (BOM.)] AND IN 'CIT VS. GOPAL PUROHIT [(2011) 336 ITR 287 (BOM.). 9. IN VIEW OF OUR ABOVE DISCUSSION OF THE MATTER, W E ARE OF THE VIEW THAT THE ASSESSEE IS TO BE TREATED AS AN INVESTOR FOR THE A.Y. 2005-06 TO A.Y. 2 008-09 ALSO. WE HOLD ACCORDINGLY. THE AO, THEREFORE, IS DIRECTED TO TREAT THE INCOME FROM SAL E AND PURCHASE OF SHARES AS SHORT TERM CAPITAL GAINS AND LONG TERM CAPITAL GAINS ACCORDING TO THE PERIOD OF HOLDING AS PER THE PROVISIONS OF LAW FOR THESE ASSESSMENT YEARS ALSO.' 6. THIS DECISION IN THE CASE OF SURESH K. JAJ OO (SUPRA) WAS FOLLOWED IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEARS 2005-0 6, 2006-07 & 2008-09 AND HELD THAT THE GAIN ON SALE OF SHARES IS TO BE ASSES SED AS CAPITAL GAINS AND NOT BUSINESS INCOME AS THE FACTS BEING IDENTICAL TO THA I OF THE CASE IN SURESH K. JAJOO (SUPRA) THE CO-ORDINATE BENCH OBSERVED AS UND ER: 6 ITA280/MUM/2017 'ITA NOS.5441/M/Z008 (A.Y. 2005-06) & 4476/M/2012 (A. Y. 2006-07) REVENUE'S APPEALS) 24. THE COMMON ISSUE RAISED IN BOTH THE APPEA LS IS AS TO WHETHER THE INCOME FROM SHARE TRANSACTIONS IS TO BE ASSESSED AS BUSINE SS INCOME OR CAPITAL GAINS. THE FACTS AND ISSUES INVOLVED IN THESE APPEALS ARE IDEN TICAL TO THAT OF THE APPEALS IN RELATION TO SHRI SURESH K. JAJOO. EVEN THE LD. CIT(A) HAS ALSO DISCUSSED THE CASE OF THE PRESENT ASSESSEE IN THE IMPUGNED ORDER WHICH HA S ALSO BEEN REPRODUCED ABOVE WHILE DECIDING THE APPEAL OF THE ASSESSEE SHRI SURES H K. JAJOO. SINCE THE FACTS AND CIRCUMSTANCES IN THIS CASE ARE IDENTICAL TO THE CAS E OF SHRI SURESH K. JAJOO, HENCE IN IN VIEW OF OUR FINDINGS GIVEN ABOVE, THES E APPEALS OF THE REVENUE ARE HEREBY DISMISSED. ITA NQ.5302/M/2011 (FOR A.Y. 2008-09) (REVENUE'S AP PEAL) 25. THE REVENUE IN THIS APPEAL HAS RAISED TWO EFFEC TIVE GROUNDS OF APPEAL. THE FIRST GROUND IS AS TO WHETHER THE INCOME EARNED BY THE AS SESSEE FROM SALE AND PURCHASE OF SHARES IS TO BE ASSESSED AS CAPITAL GAINS OR BUS INESS INCOME. SINCE THE FACTS AND CIRCUMSTANCES ARE IDENTICAL AS IN THE CASE OF SHRI SURESH K. JAJOO AND IN VIEW OF OUR FINDINGS GIVEN ABOVE, THIS GROUND OF THE REVENUE'S APPEAL IS HEREBY DISMISSED.' 7. FOLLOWING THE ORDER OF THE CO-ORDINATE BENCH, WE AFFIRM THE ORDER OF THE LD. CIT(A) FOR THIS YEAR ALSO IN HOLDING THAT THE INCOM E FROM SALE OF SHARES IS TO BE ASSESSED AS 'INCOME FROM SHORT TERM CAPITAL GAIN' A ND NOT AS 'BUSINESS INCOME.' 5. FACTS REMAIN UNCHANGED. THE REVENUE FAILS TO BR ING ON RECORD ANY EVIDENCE CONTRARY TO THE FACTS RECORDED BY THE ITAT FOR EARLIER YEARS. THEREFORE, CONSISTENT WITH THE VIEW TAKEN BY THE CO -ORDINATE BENCH IN ASSESSEES OWN CASE FOR EARLIER YEARS, WE DIRECT TH E AO TO ASSESS PROFIT DERIVED FROM PURCHASE AND SALE OF SHARES UNDER THE HEAD INCOME FROM CAPITAL GAINS. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JUNE, 2018. SD/- SD/- (MAHAVIR SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 20 TH JUNE, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI