M/S. HANDY TELLS PVT. LTD, Mumbai V. THE ITO 9(2)-1, MUMBAI

ITA 304/MUM/2008

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7603 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 01-02-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 14-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Keywords: Opportunity of being heard
• Section: 80IB; 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH: MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.245/MUM/2008 (ASSESSMENT YEAR: 2003-04) INCOME-TAX OFFICER -9(2)(1), ROOM NO.225, M.K. ROAD, MUMBAI -400 020 ...... APPELLANT VS M/S. HANDY TELLS PRIVATE LIMITED, 202, DIAGO B., SHURLEY RAJAN ROAD, RIZVI COMPLEX, BANDRA (W), MUMBAI -400 050 ..... RESPONDENT ITA NO.304/MUM/2008 (ASSESSMENT YEAR: 2003-04) M/S. HANDY TELLS PRIVATE LIMITED, 202, DIAGO B., SHURLEY RAJAN ROAD, RIZVI COMPLEX, BANDRA (W), MUMBAI -400 050 ...... APPELLANT VS INCOME-TAX OFFICER -9(2)(1), ROOM NO.225, M.K. ROAD, MUMBAI -400 020 ..... RESPONDENT PAN: AAACH 2633 K APPELLANT-ASSESSEE BY: SHRI ASHOK PATIL RESPONDENT-REVENUE BY: SHRI V.V. SHASTRI DATE OF HEARING: 01.02.2012 DATE OF PRONOUNCEMENT: 28.03.2012 O R D E R PER R.S. PADVEKAR, JM : THESE TWO CROSS APPEALS ONE BY THE ASSESSEE AND ANO THER BY THE REVENUE ARE FILED CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT (A)-9, MUMBAI DATED 22.10.2007 FOR THE A.Y. 2003-04. WE F IRST TAKE THE REVENUES APPEAL BEING ITA 245 OF 2008. THE REVENU E HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS: ITA 245/M/2008 ITA 304/M/2008 M/S. HANDY TELLS PRIVATE LIMITED 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT (A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE ASSESSEES CLAIM OF DEDUCTION U/S.80IB OF THE I.T. ACT, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS NOT FULFILLED THE CONDITIONS ELIGIBLE FOR CLAIMING DEDU CTION U/S.80IB OF THE I.T. ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT (A) ERRED IN DIRECTING THE ASSESSING OFFICER TO VERIFY AS TO WHETHER THE ASSESSEE HAD EMPLOYED 10 OR MORE WORKERS DURING THE YEAR UNDER CONSIDERATION, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS EMPLOYED EVEN LESS THAN 10 WORKERS DURING ALL THE MONTHS OF THE PREVIOUS YEAR RELEVANT FOR A.Y. 2003-04. 2. THE MAIN CONTROVERSY IS IN RESPECT OF THE DEDUCT ION U/S.80IB OF THE ACT. AS OBSERVED BY THE A.O. THE ASSESSEE COMP ANY IS HAVING FOLLOWING THREE UNITS OF THE BUSINESS: (I) A UNIT AT DAMAN MAKING DISPLAY SIGNBOARDS; (II) ANDHERI DIVISION DEALING IN SIM CARDS ON COMM ISSION BASIS; AND (III) TELLY TALK DIVISION AT SANTACRUZ DEALING IN MOBILE BATTERIES, SIM CARDS, HANDSET ETC. 3. THE ASSESSEE HAS CLAIMED THE DEDUCTION IN RESPEC T OF THE UNIT AT DAMAN IN WHICH THE SIGNBOARDS ARE MADE. THE ASSESS EE HAS CLAIMED THE DEDUCTION U/S.80IB OF RS.36,63,452/- IN RESPECT OF PROFIT SHOWN FROM THE DAMAN UNIT. THE A.O. WAS OF THE OPINION T HAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S.80IB FOR THE FOLL OWING REASONS: (I) THE ASSESSEES UNIT IS NOT INDUSTRIAL UNDERTAKING A S THERE IS NO PLANT AND MACHINERY AND ACTIVITY OF THE ASSES SEE MAKING THE SIGNBOARDS CANNOT BE TREATED AS ITA 245/M/2008 ITA 304/M/2008 M/S. HANDY TELLS PRIVATE LIMITED 3 MANUFACTURING OR PRODUCTION OF NEW ARTICLES. THE ASSESSEE, THOUGH FILED THE LIST OF THE PLANT & MACH INERY AND TOOLS AS UNDER BUT THE LD. A.O. OBSERVED THAT T HOSE ARE IN THE NATURE OF TOOLS AND CANNOT BE TREATED AS PLANT & MACHINERY: (I) OSCILLOSCOPE (II) AUTO SOLDER (III) PHENUMATIC DRIVES (IV) JUGS (V) TESTING & MEASURING INSTRUMENT (VI) SPECIFIC COMPULSOR (VII) EXHAUST FANS (VIII) TABLES (II) THE A.O. WAS OF THE FURTHER OPINION THAT MAKIN G OF THE SIGNBOARDS CANNOT BE SAID TO BE THE MANUFACTURING ACTIVITY. (III) THE ASSESSEE HAS NOT EMPLOYED THE REQUISITE N UMBER OF EMPLOYEES IN THE MAKING OF THE SIGNBOARDS. THE A.O . HAS OBSERVED THAT THE ELECTRICITY BILLS WERE VERY MEAGR E AND HENCE THE ASSESSEE IS NOT USING POWER FOR MAKING TH E SIGNBOARDS. THE A.O. HAS OBSERVED THAT THE ASSESSE E SHOULD HAVE EMPLOYED MINIMUM TWENTY WORKERS BUT THE EMPLOYEES WERE FOUND IN THE UNIT WERE BETWEEN THREE TO EIGHT. THE A.O. HAS ALSO GIVEN THE NUMBER OF WORKE RS EMPLOYED BY THE ASSESSEE MONTH-WISE IN THE ASSESSME NT ORDER. THE A.O. ALSO IMPOUNDED THE ATTENDANT REGIS TER THOUGH IN THE ATTENDANCE REGISTRAR SOME EMPLOYEES W ERE SHOWN BUT ONLY FEW EMPLOYEES PUT THEIR SIGNATURES SHOWING THEIR PRESENCE / ATTENDANCE. 4. THE A.O. REJECTED THE CLAIM OF THE ASSESSEE IN R ESPECT OF THE DEDUCTION U/S.80IB. THE ASSESSEE CHALLENGED THE AC TION OF THE A.O. BEFORE THE LD. CIT (A) AND LD. CIT (A) ACCEPTED THE PLEA OF THE ASSESSEE ITA 245/M/2008 ITA 304/M/2008 M/S. HANDY TELLS PRIVATE LIMITED 4 THAT THE ASSESSEES ACTIVITY IN MAKING THE SIGNBOAR DS AMOUNTS TO MANUFACTURE AND AS THE ASSESSEE IS USING THE POWE R HENCE THE ASSESSEE WAS REQUIRED TO EMPLOY 10 EMPLOYEES. THE LD. CT (A) DIRECTED THE A.O. TO VERIFY WHETHER THE ASSESSEE HA S EMPLOYED 10 EMPLOYEES OR NOT AND IF THE ASSESSEE HAS ACCEPTED 1 0 EMPLOYEES OR MORE THEN THE DEDUCTION U/S.80IB SHOULD BE GRANTED. THE OPERATIVE PART OF THE ORDER OF THE LD. CIT (A) READS AS UNDER : 3. I HAVE GONE THROUGH THE CONTENTION OF THE APP ELLANT AS WELL AS THAT OF THE AO. IN SO FAR AS THE APPELLANTS CLA IM THAT THE AO HAS ERRED IN APPORTIONING THE EXPENSES AND PROFIT O F THE BUSINESS IS CONCERNED FROM THE FACTS IT IS SEEN THAT THE EXP ENSES OF DAMAN UNITS WERE DEBITED BY THE APPELLANT COMPANY TO ITS ANDHERI UNITS AND THEREBY IT HAS IT SHOWN MORE PROFIT AT DAMAN UN IT WHERE IT WAS ELIGIBLE FOR DEDUCTION U/S 80IB. THIS FACT CAN BE VERIFIED FROM THE FACT THAT IN PARA 4 THE APPELLANT HAS ADMI TTED THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT HAS ADMITTED THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS THE AP PELLANT VIDE ITS LETTER DATED 24/01/2006 CLARIFIED TO THE A.O. T HAT A SUM OF RS.3,80,033/- HAS BEEN WRONGLY DEBITED TO MUMBAI UN ITS AS THESE EXPENSES WERE REALLY OF MANUFACTURING UNIT A T DAMAN. THE APPELLANT ACCORDINGLY SUBMITTED TO THE A.O. THAT AF TER CARRYING OUT THE SAID RECTIFICATION IN ACCOUNTS THE TAXABLE INCO ME WILL REMAIN UNCHANGED. THIS FACT CLEARLY INDICATE THAT THERE W ERE CLEAR INTERMINGLING OF EXPENSES AMONGST VARIOUS BUSINESS WHERE THE APPELLANT TAD CLAIMED EXPENSES OF DAMAN UNITS AT OT HER MUMBAI UNITS AND THEREFORE UNDER THE CIRCUMSTANCES WHERE T HE ACCOUNTS DID NOT REFLECT THE TRUE AND CORRECT PICTURE OF EAC H UNIT THE AO WAS RIGHT IN ESTIMATING THE INCOME OF EACH UNIT ON THE BASIS OF TURNOVER OF EACH UNITS. IT IS RELEVANT TO NOTE TH AT IT IS UNDER SUCH CIRCUMSTANCES THAT THE AO HAD ESTIMATED THE INCOME AND HENCE I DO NOT FIND ANY INFIRMITIES IN THE AOS ACTION IN E STIMATING THE INCOME OF THE APPELLANT COMPANY ON THE BASIS OF TUR NOVER. AND HENCE APPELLANTS THIS GROUND OF APPEAL IS THEREFOR E REJECTED. ITA 245/M/2008 ITA 304/M/2008 M/S. HANDY TELLS PRIVATE LIMITED 5 3.1 AS REGARD THE APPELLANTS CLAIM THAT THE SAID D AMAN UNITS WAS ELIGIBLE FOR DEDUCTION U/S.80IB IS CONCERNED I HAVE PERUSED THE ASSESSMENT ORDER AND FIND THAT THE AO HAS REJEC TED THE APPELLANTS CLAIM ON THE BASIS OF THE FACTS THAT TH E APPELLANT WAS CARRYING OUT ITS ACTIVITIES WITHOUT THE AID OF POWE R AND HENCE NUMBER OF WORKERS EMPLOYED BY THE APPELLANT COMPANY AT DAMAN UNITS DURING THE YEAR SHOULD HAVE BEEN MORE T HAN 20, THE CONDITION WHICH ACCORDING TO THE AO THE APPELLANT H AD NOT COMPLIED WITH. FURTHER ACCORDING TO THE AO THE APP ELLANT COMPANY HAD NO PLANT AND MACHINERIES BUT THE INSTRU MENTS USED WERE OF THE NATURE OF TOOLS AND THAT THE APPELLANT WAS NOT CARRYING OUT THE MANUFACTURING ACTIVITIES. HOWEVER LOOKING TO THE FACTS OF THE CASE I AM IN AGREEMENT WITH THE APPELL ANT THAT THE PRODUCT UNMANUFACTURED BY THE APPELLANT COMPANY WAS DIFFERENT THAN THE RAW MATERIAL USED TO PRODUCE THE SAME. AS HAS BEEN SEEN THAT THE APPELLANT COMPANY HAD USED ALUMINUM A ND BRASS METAL SHEET TO MAKE THE PRODUCT CALLED WHICH DISPLA Y SCROLL ADVERTISEMENT UNIT. THE PROCESS INVOLVED THE FOLLOW ING STEPS I.E. ALUMINUM / BRASS METAL PURCHASED FROM THE MARKET AN D CUT INTO APPROPRIATE SIZES AND THEN DISJOINTED PIECES ARE FI XED WITH THE SUPPORT OF ANGLES AND BRACKETS BY DRILLING HOLES AN D SCREWING THEM TOGETHER, AND THEREAFTER APPROPRIATE LIGHTS AR E INSTALLED INSIDE THE BOXES WHICH BASICALLY GIVE A BACKLIGHT T O THE ADVERTISEMENT MATERIAL DISPLAYED IN FRONT OF THE BO XES AND SPECIALIZED ELECTRIC MOTORS AND ROLLERS ARE INSTALL ED WHEREBY THE PRINCIPLE ADVERTISED MATERIAL IS DISPLAYED BY ROLLI NG MOTION CAUSED BY THE ELECTRIC MOTORS INSTALLED INSIDE THE SET BOXES. THE SAID STROLL ADVERTISEMENT DISPLAY UNITS ARE THEN SU PPLIED TO VARIOUS COMPANIES WHO INTEND TO DISPLAY THEIR PRODU CTS AT VARIOUS SHOPPING CENTERS AND SHOWROOMS ACROSS INDIA . THE BOXES ARE BASICALLY CALLED SCROLL ADVERTISEMENT DISPLAY U NITS WHICH HAVE METAL ON ALL SIDES AND THE PLASTIC PRINT ON THE FRO NT SIDE ON WHICH ADVERTISEMENT ARE DISPLAYED. FROM THE OTHER DESCRIP TION OF THE PROCESS, IT CAN BE CLEARLY SEEN THAT THE RAW MATERI AL I.E. THE BRASS/ALUMINUM METAL THAT IS PURCHASED FROM THE MAR KET IS ITA 245/M/2008 ITA 304/M/2008 M/S. HANDY TELLS PRIVATE LIMITED 6 DIFFERENT FROM THE FINAL PRODUCT WHICH IS BASICALLY CALLED SCROLL ADVERTISEMENT DISPLAY UNITS AND THEREFORE THE AOS STAND THAT THE APPELLANT HAD NOT CARRIED OUT ANY MANUFACTURING ACT IVITIES CAN NOT BE ACCEPTED. IN THIS REGARD THE RELIANCE PLACED BY THE AO ON JUDICIAL PRONOUNCEMENT IS DISTINGUISHABLE ON FACTS WHERE THE ASSESSEE HAD CLAIMED THE BENEFIT U/S.80I FOR COLD S TORAGE ACTIVITIES WHICH ACCORDING TO TINE HONBLE HIGH COU RT THE ACTIVITY DID NOT BRING INTO EXISTENCE ANY PRODUCT DIFFERENT THAN THE ONE USED AS RAW MATERIAL, IT IS UNDER THESE CONDITIONS THE AO HAD DISALLOWED THE APPELLANTS CLAIM WHERE AS IN THE IN STANT CASE METAL SHEETS ARE CUT TO VARIOUS SIZES AND WERE WELD FROM THREE SIDES AND WAS ALSO FITTED WITH THE BAKELITE COVER A ND HENCE AOS STAND THAT NO MANUFACTURING ACTIVITIES WERE CARRIED OUT BY THE APPELLANT CAN NOT BE ACCEPTED AND THEREFORE DISALLO WANCE OF CLAIM ON THIS GROUND IS STRUCK DOWN. NOW COMING AO S STAND THAT NO MANUFACTURING G ACTIVITIES WERE CARRIED OU T BY THE APPELLANT HAD NOT EMPLOYED 20 OR MORE PERSONS IN MA NUFACTURING ACTIVITIES IS CONCERNED IT IS SEEN THAT THE APPELLA NT WAS USING DRILL MACHINES, WELDING MACHINES ETC. WHICH WERE PRIMARIL Y OPERATED BY THE AID OF POWER AND HENCE WHERE THE ACTIVITY WH ERE THERE IS PREDOMINANTLY USE OF POWER TO MAKE CORE ACTIVITIES OF THE MANUFACTURING PROCESS THE ASSESSEE SHOULD SAID TO B E USING POWER FOR THE MANUFACTURING ACTIVITIES. FURTHER IT IS ALSO SEEN THAT FOR THE POWER GENERATION, THE APPELLANT HAD ALSO HI RED THE GENERATOR SET FOR WHICH EXPENSES WERE DEBITED BY TH E APPELLANT COMPANY WHICH ARE ALSO ALLOWED BY THE AO AS FOR THE PURPOSE OF THE BUSINESS AND HENCE CONSIDERING THESE FACTS I AM ALSO IN AGREEMENT WITH THE APPELLANT THAT SINCE THE MANUFAC TURING ACTIVITIES WERE CARRIED OUT WITH THE AID OF POWER T HE NUMBER OF EMPLOYEES EMPLOYED DURING THE YEAR SHOULD BE 10 AND NOT 20 AS HAS BEEN ENVISAGED BY THE AO. THUS AOS ACTION IN T HIS REGARD IS ALSO STRUCK DOWN. FURTHER THE APPELLANT HAS ALSO SU BMITTED THAT THE MANUFACTURING ACTIVITY WAS ALSO CARRIED OUT BY EMPLOYING OUTSIDE WORKERS ON JOB WORK BASIS WHO WERE WORKING UNDER THE DIRECT CONTROL AND SUPERVISION OF THE APPELLANT CO MPANY. LOOKING ITA 245/M/2008 ITA 304/M/2008 M/S. HANDY TELLS PRIVATE LIMITED 7 TO THESE FACTS THE AO IS DIRECTED TO VERIFY AS TO W HETHER THE APPELLANT COMPANY HAD EMPLOYED 10 OR MORE PERSONS D URING THE YEAR UNDER CONSIDERATION AND IF THAT BE THE CASE DE DUCTION U/S. 80IB SHOULD BE ALLOWED. THUS CONSIDERING OVERALL FA CTS OF THE CASE AO IS DIRECTED TO ALLOW THE APPELLANTS CLAIM OF DEDUCTION U/S 80IB AS PER THE PROVISIONS OF LAW ON PROFIT OF THE BUSINESS OF DAMAN UNIT ON PROFIT DETERMINED BY HIM BY ALLOCATIN G INCOME PER UNITS. 5. NOW, THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND PERUSED THE RECORDS. WE FIND THAT THE ASSESSEE IS USING AL UMINIUM AND BRASS METAL SHEETS FOR MAKING THE DISPLAYS SCROLL ADVERTI SEMENT UNIT I.E. SIGNBOARDS. THERE IS A PROCESS INVOLVED LIKE CUTTI NG OF THE PIECES TO THE SIZE, MANUFACTURING OF ADVERTISING SCROLLING DI SPLAY SIGNBOARDS BY DRILLING HOLES, FIXING THE LIGHTS INSIDE THE BOX. ELECTRICAL MOTORS ARE INSTALLED WHEREBY THE PRINCIPLE ADVERTISEMENT MATER IAL IS DISPLAYED. IN OUR OPINION, HOW IT CAN BE SAID THAT THERE IS NO DIFFERENT COMMERCIAL COMMODITY. AFTER EXAMINING THE PROCESS INVOLVED IN MAKING OF THE DISPLAY OF SIGNBOARDS CENTRAL ADVERTI SEMENT UNIT, WE HOLD THAT THE ASSESSEE IS ENGAGED IN THE MANUFACTUR ING ACTIVITY. WE, THEREFORE, CONFIRM THE ORDER OF THE LD. CIT (A) AND DISMISS THE GROUND NO.1 TAKEN BY THE REVENUE. 7. SO FAR AS GROUND NO.2 IS CONCERNED, THE GRIEVANC E OF THE REVENUE IS THAT THE LD. CIT (A) DIRECTED THE A.O. TO VERIFY WHETHER THE ASSESSEE HAD EMPLOYED 10 OR MORE WORKERS. AS PER THE GROUND S RAISED BY THE REVENUE THEY HAVE NOT CHALLENGED THE FINDINGS OF TH E LD. CIT (A) THAT AS THE ASSESSEE IS USING THE POWER HE IS REQUIRED T O ENGAGE 10 WORKERS. WE HAVE GONE THROUGH THE REASONS GIVEN BY THE LD. CIT (A) AND WE FIND THAT THE ASSESSEES MANUFACTURING ACTIV ITY WAS CARRIED OUT BY EMPLOYING OUTSIDE WORKERS ON JOB-WORK BASIS WHO WERE WORKING UNDER THE DIRECT CONTROL AND SUPERVISION OF THE ASS ESSEE COMPANY. IN ITA 245/M/2008 ITA 304/M/2008 M/S. HANDY TELLS PRIVATE LIMITED 8 OUR OPINING, THERE IS NO INFIRMITY IN THE DIRECTION GIVEN BY THE LD. CIT (A), WE ACCORDINGLY CONFIRM THE SAME AND DISMISS GR OUND NO.2. 8. NOW, WE TAKE ASSESSEES APPEAL BEING ITA 304 OF 2008. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ASSESSING OFFICER S ASSESSMENT IN APPORTIONING PROFIT OF RS.42,16,586/- BETWEEN THE THREE UNITS OF THE APPELLANT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FAILED TO APPRECIATE THAT ALL THE THREE U NITS WERE LOCATED AT DIFFERENT PLACES AND WERE CARRYING ON TOTALLY DIFFERENT ACTIVITIES. 9. THE ASSESSEE HAS RAISED FOLLOWING ADDITIONAL GRO UND: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE AO ERRED IN ESTIMATING THE INCOME BY APPORTIONING T HE PROFITS OF THE DAMAN UNIT BETWEEN ALL THE THREE UNITS OF THE A PPELLANT WITHOUT REJECTING THE BOOKS OF ACCOUNTS OF THE APPE LLANT U/S.145 OF THE INCOME TAX ACT, 1961. 10. WE HAVE HEARD THE PARTIES ON THE ADMISSION OF THE ADDITIONAL GROUND. THE LD. COUNSEL ARGUES THAT IT IS A LEGAL GROUND AND IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. 229 ITR 383 THE SAME MAY BE ADMITTED. WE HAVE ALSO HEARD THE LD. D.R. WHO OPPOSED FOR ADMITT ING THE SAME. WE FIND THAT THE ASSESSEE HAS ALREADY RAISED THIS GROU ND IN THE ORIGINAL APPEAL. ONLY ADDITIONAL CONTENTION RAISED BY THE A SSESSEE IS THAT WHETHER WITHOUT REJECTING THE BOOKS OF ACCOUNT U/S. 145 CAN THE BOOK RESULT BE DISTURBED. IN OUR OPINION, THIS IS A LEG AL GROUND AND NO ITA 245/M/2008 ITA 304/M/2008 M/S. HANDY TELLS PRIVATE LIMITED 9 PROBE OF NEW FACTS ARE REQUIRED. WE, ACCORDINGLY, ADMIT THE SAME AND WITH THE CONSENT OF BOTH THE PARTIES, WE RESTORE TH E ISSUE TO THE FILE OF THE A.O. TO DECIDE THE SAME AFRESH. ACCORDINGLY, G ROUNDS ORIGINAL AS WELL AS ADDITIONAL TAKEN BY THE ASSESSEE ARE ALLOWE D FOR STATISTICAL PURPOSE. THE ASSESSEE IS DIRECTED TO DEMONSTRATE B EFORE THE A.O. HOW THE APPORTIONMENT OF THE EXPENDITURE IS NOT JUSTIFI ED. NEEDLESS TO SAY A.O. SHOULD GIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 11. IN THE RESULT, REVENUES APPEAL IS DISMISSED AN D ASSESSEES APPEAL IS ALLOWED FOR THE STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 8TH MARCH, 2012. SD/- (J. SUDHAKAR REDDY) ACCOUTANT MEMBER SD/- (R.S. PADVEKAR) JUDICIAL MEMBER MUMBAI, DATE: 28TH MARCH, 2012 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A)-9, MUMBAI. 4) THE CIT -9, MUMBAI. 5) THE D.R. H BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN