THE DCIT 9(2), MUMBAI V. M/S MTZ POLY FILMS LTD., MUMBAI

ITA 362/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1919 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 03-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Source of fund
• Section: 43B; 143(3); 37(1)

Judgement Text

G IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 362 /MUM/2011 ( / ASSESSMENT YEAR : 2007-08) ACIT 9(2), A.C. RANGE 9(2), AAYAKAR BHAVAN, ROOM NO. 218, 2 ND FLOOR, M.K. ROAD, MUMBAI 400 020 / V. M/S MTZ POLYFILMS LTD., NEW INDIRA CENTRE, 5 TH FLOOR, 17, COOPERAGE ROAD, MUMBAI 400 039. ./ PAN :AAACT0193N ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 646 /MUM/2011 ( / ASSESSMENT YEAR : 2007-08) M/S MTZ POLYFILMS LTD., NEW INDIRA CENTRE, 5 TH FLOOR, 17, COOPERAGE ROAD, MUMBAI 400 039. / V. DCIT 9(2), AAYAKAR BHAVAN, ROOM NO. 218, 2 ND FLOOR, M.K. ROAD, MUMBAI 400 020 ./ PAN :AAACT0193N ( / APPELLANT ) .. ( / RESPONDENT ) REVENUE BY S HRI RAJESH OJHA ASSESSEE BY : NONE / DATE OF HEARING : 4-11-2015 / DATE OF PRONOUNCEMENT :18-12-2015 ITA 362/M/11 & 646/M/11 2 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER : THESE TWO APPEALS BY THE REVENUE AND THE ASSESSEE C OMPANY ARE DIRECTED AGAINST THE ORDERS OF THE LEARNED COMMISSI ONER OF INCOME TAX(APPEALS)-20 , MUMBAI (HEREINAFTER CALLED THE C IT(A)) DATED 08-11-2010 PERTAINING TO THE ASSESSMENT YEAR 2007-08. THESE AP PEALS ARE HEARD TOGETHER AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE O F CONVENIENCE AND BREVITY. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE COMPANY DESPITE SEVERAL NOTICES BEING ISSUED AND SERVED ON THE ASSESSEE COM PANY SINCE THE YEAR 2013 AS PER NOTINGS IN THE ORDER SHEET. THE HEARINGS B EFORE THE TRIBUNAL TOOK PLACE ON 25-11-2013, 20-05-2014, 30-07-2014, 09-03- 2015, 15-09-2015, 03- 11-2015 AND 04-11-2015, WHEN NONE ATTENDED ON BEHAL F OF THE ASSESSEE COMPANY. THE REVENUE HAS ALSO SERVED NOTICE ON THE ASSESSEE COMPANY FOR WHICH PROOF OF SERVICE OF NOTICE DATED 22-09-2015 I S DULY FURNISHED TO THE TRIBUNAL AS PER DOCUMENTS PRODUCED BY THE REVENUE B EFORE THE TRIBUNAL WHICH ARE PLACED IN THE FILE . THERE WAS NO COMPLIA NCE ON THE PART OF THE ASSESSEE COMPANY DESPITE SEVERAL NOTICES BEINGS SER VED ON THE ASSESSEE COMPANY . THE BENCH, THEREFORE DECIDED TO DISPOSE O F THE APPEALS IN THE ABSENCE OF THE ASSESSEE COMPANY AFTER HEARING THE L D. D.R. AND CONSIDERING THE MATERIAL PLACED ON RECORD. 3. FIRST, WE SHALL TAKE UP ASSESSEE COMPANYS APPEA L IN ITA NO. 646/MUM/2011 WHEREIN THE FOLLOWING GROUNDS HAVE BEE N RAISED BY THE ASSESSEE COMPANY IN THE MEMO OF APPEAL FILED WITH T HE TRIBUNAL:- 1) THE COMMISSIONER OF INCOME TAX(APPEAL) - 20 MUM BAI, [HEREINAFTER REFERRED TO AS CIT(A)] ERRED IN CONFIR MING THE DISALLOWANCE OF RS.22,19,824/- OUT OF EMPLOYEE'S CONTRIBUTION TOWARD S PF U/S 36(1)(VA) R.W.S.2(24)(X) OF THE ACT. ITA 362/M/11 & 646/M/11 3 THE APPELLANT SUBMITS THAT THE CIT (A) OUGHT TO HAVE CONS IDERED DEDUCTION OF PAYMENTS MADE TOWARDS EMPLOYEES' CONTRIBU TION TO PF BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. 2. THE CIT(A) ERRED IN CONFIRMING DISALLOWANCE OF R S. 2,86,78,344 U/S 40(A)(IA) OF THE ACT OUT OF VARIOUS PAYMENTS MADE B Y THE APPELLANT DURING THE YEAR ON THE GROUND THAT TAX THOUGH HAVE BEEN DEDUCTED BUT WERE NOT DEPOSITED IN THE GOVT. ACCOUNT BEFORE THE D UE DATE PRESCRIBED. YOUR APPELLANT SUBMITS THAT TAX ON EXPENSES OF RS. 1,37,85,991/- HAS BEEN PAID BEFORE THE DUE DATE OF FILING THE RETURN AND HENCE THE CIT (A) OUGHT TO HAVE ALLOWED THE EXPENS ES AS DEDUCTIBLE EXPENDITURE. YOUR APPELLANT FURTHER SUBMITS THAT EXPENSES OF RS. 1,4 8,92,353/- (I.E. RS. 2,86,78,344/- - RS. 1,37,85,991/-) HAS ALREAD Y BEEN DISALLOWED BY THE APPELLANT AND THE CIT (A) OUGHT NOT TO HAVE CONFIRME D AGAIN THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY DURING THE PREVIOUS YEAR SET UP GREEN FIELD PROJECT FOR MANUFA CTURING HIGH QUALITY POLYESTER FILMS TO MEET THE NEEDS OF FLEXIBLE PACKA GING AND MANY OTHER APPLICATIONS. 5. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT,1961 (HEREINAFTER CALLED THE ACT) READ WI TH SECTION 143(2) OF THE ACT, THE LEARNED ASSESSING OFFICER(HEREINAFTER CALLED T HE AO) ON PERUSAL OF THE TAX AUDIT REPORT FILED ALONG WITH THE RETURN OF INCOME FILED WITH THE REVENUE OBSERVED THAT THE ASSESSEE COMPANY HAS MADE LATE P AYMENT OF THE SUM RECEIVED FROM EMPLOYEES TOWARDS CONTRIBUTION OF PF BEYOND THE DUE DATE STIPULATED UNDER THE RELEVANT PF ACT AND, HENCE, AD DITION WAS MADE BY THE A.O. U/S 36(1)(VA) R.W.S. 2(24) (X) OF THE ACT AMO UNTING TO RS. 22,19,824/- TO THE INCOME OF THE ASSESSEE COMPANY AS THE PAYMENTS OF PF AMOUNT WITH THE PF AUTHORITIES HAVE BEEN MADE AFTER THE DUE DATE P RESCRIBED UNDER THE PF ACT AND ALSO IN MOST OF THE CASES THE PAYMENTS OF P F AMOUNT HAVE NOT BEEN ITA 362/M/11 & 646/M/11 4 DEPOSITED AT ALL WITH THE PF AUTHORITIES VIDE ASSES SMENT ORDERS DATED 22.12.2009 PASSED U/ 143(3) READ WITH SECTION 143(2 ) OF THE ACT. THE DETAILS ARE AS UNDER:- P.F. PAYMENTS RELATING TO JHAGADIA FACTORY. MONTH EMPLOYEES CONTRIBUTION TO PROVIDENT FUND.(RS) DUE DATE FOR PAYMENT ACTUAL DATE OF PAYMENT. APRIL, 2006 80,905 15.05.2006 05.09.2006 MAY, 2006 83,297 15.06.2006 05.09.2006 JUNE, 2006 87,840 15.07.2006 12.06.2007 JULY, 2006 78,372 15.08.2006 AUGUST, 2006 87,943 15.09.2006 SEPTEMBER, 2006 84,585 15.10.2006 OCTOBER,2006 85,857 15.11.2006 NOVEMBER, 2006 80,549 15.12.2006 DECEMBER, 2006 83,689 15.01.2007 JANUARY,2007 84,286 15.02.2007 FEBRUARY, 2007 86,720 15.03.2007 MARCH, 2007 83,337 15.04.2007 TOTAL 10,06,380 P.F. PAYMENTS RELATING TO MUMBAI OFFICE MONTH EMPLOYEES CONTRIBUTION TO PROVIDENT FUND.(RS) DUE DATE FOR PAYMENT ACTUAL DATE OF PAYMENT. APRIL, 2006 80,905 15.05.2006 22.08.2006 MAY, 2006 83,297 15.06.2006 22.08.2006 JUNE, 2006 87,840 15.07.2006 02.09.2006 JULY, 2006 78,372 15.08.2006 08.11.2006 AUGUST, 2006 87,943 15.09.2006 04.05.2007 SEPTEMBER, 2006 84,585 15.10.2006 08.05.2007 OCTOBER,2006 85,857 15.11.2006 11.05.2007 ITA 362/M/11 & 646/M/11 5 NOVEMBER, 2006 80,549 15.12.2006 15.05.2007 DECEMBER, 2006 83,689 15.01.2007 25.06.2007 JANUARY,2007 84,286 15.02.2007 04.07.2007 FEBRUARY, 2007 86,720 15.03.2007 MARCH, 2007 83,337 15.04.2007 TOTAL 12,13,444 6.AGGRIEVED BY THE ASSESSMENT ORDERS DATED 22.12.20 09 PASSED U/ 143(3) OF THE ACT BY THE AO, THE ASSESSEE COMPANY FILED THE F IRST APPEAL BEFORE THE CIT(A) AND SUBMITTED THAT THE ENTIRE SUM WAS DEPOSI TED WITH THE PF AUTHORITIES BY THE ASSESSEE COMPANY BEFORE THE DUE DATE PRESCRIBED FOR FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT AND HENC E NO ADDITION CAN BE MADE TO THE INCOME OF THE ASSESSEE COMPANY U/S 36(1)(VA) READ WITH SECTION 2(24)(X) OF THE ACT. THE CIT(A) REJECTED THE CONTEN TIONS OF THE ASSESSEE COMPANY AND HELD THAT THE IMPUGNED SUM REPRESENTS E MPLOYEES CONTRIBUTIONS TO PF WHILE SECTION 43B OF THE ACT PE RMITS DEDUCTION IF THE PAYMENTS ARE MADE BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME AS PRESCRIBED U/S 139(1) OF THE ACT ONLY TO THE EMPLO YERS CONTRIBUTION WHICH IS AN EXPENDITURE IN THE HANDS OF THE ASSESSEE COMPANY . THE CIT(A) HELD THAT THE EMPLOYEES CONTRIBUTION IS RECEIPT IN THE HANDS OF THE ASSESSEE COMPANY AND IS DEEMED AS INCOME U/S 2(24)(X) READ WITH SECT ION 36(1)(VA) OF THE ACT AND SINCE THE ASSESSEE COMPANY HAS DELAYED IN DEPOS ITING THE EMPLOYEES CONTRIBUTION OF PF BEYOND THE TIME PRESCRIBED UNDER PF ACT, THIS PAYMENT HAS TO BE DISALLOWED IN ACCORDANCE WITH SECTION 36( 1)(VA) OF THE ACT UNLESS THE SAME IS DEPOSITED WITH THE PF AUTHORITIES BEFORE TH E DUE DATE SPECIFIED IN THE RELEVANT PF ACT READ WITH RULES , ORDERS OR NOTIFIC ATION GOVERNING THE PROVIDENT FUND. THE CIT(A) RELIED UPON THE DECISION OF SPECIA L BENCH OF THE TRIBUNAL- KOLKATTA IN JCIT V. ITC LTD. 112 ITD 572(KOL-SB). T HE ASSESSEE COMPANY ON THE OTHER HAND RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. AIMIL LIMITED , 229 CTR 418 , WHICH THE CIT(A) DISTINGUISHED ITA 362/M/11 & 646/M/11 6 BY SAYING THAT HE HAS FOUND THAT THE CORRECT PROVIS IONS OF THE ACT WERE NOT BROUGHT TO THE NOTICE OF THE HONBLE DELHI HIGH COU RT. 7. AGGRIEVED BY THE ORDERS OF THE CIT(A) DATED 08- 11-2010 , THE ASSESSEE COMPANY IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 8. THE LD. D.R. RELIED UPON THE ORDERS OF AUTHORITI ES BELOW. 9. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATER IAL OF RECORDS. THE HONBLE DELHI HIGH COURT HELD IN THE CASE OF AIMIL LIMITED(SUPRA) FOLLOWING THE OBSERVATION IN VINAY CEMENT LIMITED I N (2007) 213 CTR 268(SC) AS UNDER :- ' WE MAY ONLY ADD THAT IF THE EMPLOYEES' CONTRIBUTION IS NOT DEPOSITED BY THE DUE DATE PRESCRIBED UNDER THE RELE VANT ACTS AND IS DEPOSITED LATE, THE EMPLOYER NOT ONLY PAYS INTER EST ON DELAYED PAYMENT BUT CAN INCUR PENALTIES ALSO, FOR WHICH SPE CIFIC PROVISIONS ARE MADE IN THE PROVIDENT FUND ACT AS WELL AS IN TH E ESI ACT. THEREFORE, THE ACT PERMITS THE EMPLOYER TO MAKE THE DEPOSIT WITH SOME DELAYS, SUBJECT TO THE AFORESAID CONSEQUENCES. INSOFAR AS THE INCOME-TAX ACT IS CONCERNED, THE ASSESSEE CAN GET T HE BENEFIT IF THE ACTUAL PAYMENT IS MADE BEFORE THE RETURN IS FILED, AS PER THE PRINCIPLE LAID DOWN BY THE SUPREME COURT IN VINAY C EMENT [2009] 313 ITR (ST.) 1.' IN OUR CONSIDERED VIEW , EVEN IN RESPECT OF THE EMP LOYEES CONTRIBUTION OF PF, IF THE SAME IS DEPOSITED BY THE ASSESSEE COMPANY WI TH THE PF AUTHORITIES BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT , THE SAME IS TO BE ALLOWED AS DEDUCTION WHILE COMPUTING INCOME UNDER T HE ACT IN VIEW OF SECTION 43B OF THE ACT WHICH ALLOWS DEDUCTIONS IF T HE PAYMENT IS MADE BEFORE THE DUE DATE OF FURNISHING OF RETURN U/S 139(1) OF THE ACT. THE HONBLE DELHI ITA 362/M/11 & 646/M/11 7 HIGH COURT IN THE CASE OF AIMIL LIMITED(SUPRA) HAS HELD THAT WITH RESPECT TO THE PAYMENTS MADE TOWARDS DEPOSIT OF EMPLOYEES CON TRIBUTION WITH THE PF AUTHORITIES BEYOND THE TIME STIPULATED UNDER THE P. F. ACT THERE ARE INTEREST AND PENALTY PROVISIONS PRESCRIBED UNDER THE RELEVAN T PF ACT AND HENCE, AS PER THE INCOME TAX ACT,1961 , IF THE PAYMENTS ARE M ADE BEFORE THE DUE DATE AS PRESCRIBED U/S 139(1) OF THE ACT, THE SAME SHALL BE ALLOWED AS DEDUCTION WHILE COMPUTING INCOME OF THE ASSESSEE COMPANY. HEN CE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH CO URT IN THE CASE OF AIMIL LIMITED(SUPRA), WE DIRECT THE A.O. TO ALLOW THE DED UCTION WITH RESPECT TO THE EMPLOYEES CONTRIBUTION TOWARDS PF WHICH IS DEPOSIT ED BY THE ASSESSEE COMPANY WITH THE PF AUTHORITIES BEFORE THE DUE DATE OF FILING RETURN OF INCOME AS PRESCRIBED U/S 139(1) OF THE ACT. THE ASSESSEE C OMPANY IS DIRECTED TO PRODUCE NECESSARY EVIDENCES BEFORE THE A.O. TO SUBS TANTIATE ITS CLAIM OF DEPOSIT OF EMPLOYEES CONTRIBUTION TOWARDS PF RECEI VED FROM THE EMPLOYEES BEING DEPOSITED WITH PF AUTHORITIES BEFORE THE DUE DATES PRESCRIBED U/S 139(1) OF THE ACT. NEEDLESS TO SAY, THAT THE ASSESS EE COMPANY BE GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 10. IN GROUND NO. 2, THE ASSESSEE COMPANY IS AGGRI EVED BY THE CONFIRMATION/ SUSTENANCE OF DISALLOWANCE OF RS. 2,8 6,78,344/- U/S 40(A)(IA) OF THE ACT ON VARIOUS PAYMENTS MADE BY THE ASSESSEE COMPANY DURING THE PREVIOUS YEAR ON THE GROUND THAT TAX THOUGH HAVE B EEN DEDUCTED BY THE ASSESSEE COMPANY BUT WAS NOT DEPOSITED IN THE GOVT . ACCOUNT BEFORE THE DUE DATE PRESCRIBED U/S 40(A)(IA) OF THE ACT. 11. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E A.O. OBSERVED THAT THE ASSESSEE COMPANY HAS DEDUCTED TAX AT SOURCE DUR ING THE PREVIOUS YEAR BUT THE SAME WAS PAID BEYOND THE DUE DATE SPECIFIED U/S 40(A)(IA) OF THE ACT. THE COMPLETE DETAILS FOR CLAIM OF EXPENDITURE AMOUN TING TO RS.2,86,78,344/- ITA 362/M/11 & 646/M/11 8 INCURRED DURING THE PREVIOUS YEAR RELEVANT TO THE A SSESSMENT YEAR ON WHICH THE ASSESSEE COMPANY HAS DEDUCTED TAX AT SOURCE BUT WAS NOT PAID TO THE CREDIT OF CENTRAL GOVERNMENT BY THE DUE DATE SPECIF IED U/S 40(A)(IA) OF THE ACT, IS GIVEN BY THE AO AT PAGE 6 TO 8 OF THE ASSES SMENT ORDER U/S 143(3) OF THE ACT DATED 22.12.2009 . THE SECTION 40(A)(IA) OF THE ACT AS IT EXISTED IN THE STATUTE IN THE RELEVANT ASSESSMENT YEAR STIPULATED PAYMENT OF TAX DEDUCTED AT SOURCE TO BE PAID DURING THE PREVIOUS YEAR , OR IN THE SUBSEQUENT YEAR BEFORE THE EXPIRY OF THE TIME PRESCRIBED UNDER SUB-SECTION (1) OF SECTION 200 OF THE ACT. THERE IS NO DISPUTE BETWEEN THE PARTIES THAT THE ASSESSEE COMPANY DEPOSITED TO THE CREDIT OF CENTRAL GOVERNMENT, TD S BEYOND THE PERIOD STIPULATED U/S 40(A)(IA) OF THE ACT. THE A.O. MAD E DISALLOWANCE OF RS. 4,37,68,378/- U/S 40(A)(IA) OF THE ACT ON THE GROUN D THAT TDS WAS NOT DEPOSITED TO THE CREDIT OF CENTRAL GOVERNMENT IN C OMPLIANCE WITH THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. AGGRIE VED BY THE ASSESSMENT ORDER DATED 22.12.2009 PASSED BY THE AO , THE ASSESSEE CO MPANY HAS PREFERRED AN APPEAL BEFORE THE CIT(A) AND SUBMITTED THAT THE AMO UNT DISALLOWABLE WORKED OUT TO ONLY RS. 2,86,78,344/- AS PER AOS OWN WORKI NG WHICH IS REFLECTED IN PAGE 6-8 OF THE ASSESSMENT ORDER BUT DISALLOWANCE H AS BEEN MADE BY AO OF RS. 4,37,68,378/- WHICH IS AN ERROR/ MISTAKE APPARE NT FROM RECORDS. THE ASSESSEE COMPANY FURTHER SUBMITTED THAT THE ENTIRE TAX DEDUCTED AT SOURCE WAS PAID BEFORE THE DUE DATE OF FILING RETURN U/S 1 39(1) OF THE ACT, ALBEIT THE SAME WAS PAID BEYOND THE DUE DATE SPECIFIED U/S 40( A)(IA) OF THE ACT. THE ASSESSEE COMPANY, IN THIS REGARD, RELIED ON THE LAT EST AMENDMENT TO SECTION 40(A)(IA) BY THE FINANCE ACT, 2010 AND CONTENDED TH AT NO DISALLOWANCE SHOULD HAVE BEEN MADE BY THE A.O AS THE TDS WAS DEPOSITED BEFORE THE TIME STIPULATED U/S 139(1) OF THE ACT. THE CIT(A) AFTER CONSIDERING THE ISSUE HELD THAT THE AMENDMENT TO SECTION 40(A)(IA) OF THE ACT RELIED UPON BY THE ASSESSEE COMPANY IS APPLICABLE ONLY FROM THE ASSESSMENT YEAR 2010-11 AND ARE NOT APPLICABLE FOR THE IMPUGNED ASSESSMENT YEAR, HOWEVE R, THE CIT (A) RESTRICTED THE DISALLOWANCE TO RS. 2,86,78,344/- ACCEPTING THA T THERE IS A MISTAKE ITA 362/M/11 & 646/M/11 9 APPARENT FROM RECORD IN THE ORDER OF THE AO AS CONT ENDED BY THE ASSESSEE COMPANY. 12.AGGRIEVED BY THE ORDERS OF THE CIT(A) DATED 08-1 1-2010, THE ASSESSEE COMPANY IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 13. THE LD. D.R. RELIED UPON THE ORDERS OF AUTHORI TIES BELOW. 14. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. IN THE GROUNDS OF APPEAL RAISED, THE ASSESS EE COMPANY SUBMITTED THAT EXPENSES OF RS. 1,48,92,353/- HAS ALREADY BEEN DISA LLOWED BY THE ASSESSEE COMPANY AND THE SAME SHOULD NOT HAVE BEEN DISALLOWE D BY THE CIT(A). THE MUMBAI TRIBUNAL IN THE CASE OF DCIT V REVECHI PROP ERTIES (2015) 63 TAXMAN.COM 213(MUM-TRIB.) HAS HELD THAT WITH RESPE CT TO THE TAX DEDUCTED AT SOURCE , IF THE PAYMENTS ARE MADE BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT, NO DISALLOWANCE CAN BE MADE U/S 40(A)(IA) OF THE ACT. THE AMENDMENT TO SECTION 40(A)(IA) BY THE FINANCE A CT, 2010 ARE HELD TO BE RETROSPECTIVE. THE RELEVANT EXTRACT OF ORDERS OF TH E MUMBAI TRIBUNAL IN THE CASE OF REVECHI PROPERTIES (SUPRA) ARE AS UNDER: BE THAT AS IT MAY, IN OUR VIEW, THE ASSESSEE'S CAS E MERITS ACCEPTANCE. THIS IS AS THE AMENDMENT TO SE. 40(A)(IA), I.E., VI DE FINANCE ACT, 2010 W.E.F. 01/4/2010, WHEREBY THE DEPOSIT OF TAX DEDUCT ED AT SOURCE, DEPOSITED WITH THE CENTRAL GOVERNMENT BY THE DUE DA TE OF THE FILING THE RETURN FOR THE RELEVANT YEAR, I.E., WHERE THE TAX W AS DEDUCTIBLE AT ANY TIME DURING THE RELEVANT PREVIOUS YEAR, HAS BEEN IN TERPRETED BY THE HON'BLE COURTS OF LAW AS RETROSPECTIVE IN NATURE, S O THAT IT WOULD APPLY FOR THE CURRENT YEAR AS WELL. THE DECISIONS BY THE HIGH ER COURTS OF LAW, AS IN THE CASE OF CIT V. RAJINDER KUMAR [2014] 362 ITR 241/220 TAXMAN 3/[2013] 39 TAXMANN.COM 126 (DELHI) AND CIT V. NARESH KUMAR [2014] ITA 362/M/11 & 646/M/11 10 362 ITR 256/221 TAXMAN 59/[2013] 39 TAXMANN.COM 182 (DELHI) , HAVE READ DOWN THE SAID AMENDMENT, HOLDING IT AS RETROSP ECTIVE ON THE GROUND OF IT BEING ONLY CLARIFICATORY AND TOWARD MITIGATIN G THE HARDSHIP BEING CAUSED AND, FURTHER, OF THE PAYMENT BY DUE DATE QUA THE DEDUCTIONS EFFECTED FOR THE FIRST ELEVEN MONTHS OF THE RELEVAN T PREVIOUS YEAR AS SUFFICIENT COMPLIANCE OF THE PROVISION. ACCORDINGLY , THE DISALLOWANCE STANDS TO BE DELETED. WE DECIDE ACCORDINGLY. THE MUMBAI TRIBUNAL IN REVECHI PROPERTIES(SUPRA) RELYING ON HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. RAJINDER KUMAR (20 14) 362 ITR 241(DELHI) HAS HELD THAT IN CASE OF TAX DEDUCTED AT SOURCE DUR ING THE PREVIOUS YEAR, IF THE PAYMENT OF TDS IS MADE BEFORE THE DUE DATE OF F ILING OF RETURN U/S 139(1) OF THE ACT, NO DISALLOWANCE CAN BE MADE U/S 40(A)(I A) OF THE ACT. HENCE, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL AND HONBLE DELHI HIGH COURT AS DETAILED ABOVE, WE HERE BY DIRECT THE A.O. TO VERIFY THE PAYMENT OF TDS WHICH WAS DEDUCTED DURING THE PR EVIOUS YEAR AND WAS DEPOSITED BY THE ASSESSEE TO THE CREDIT OF CENTRAL GOVERNMENT BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT AND ACCORDINGLY DEDUCTION OF EXPENSES WHILE COMPUTING INCOME OF THE ASSESSEE COM PANY BE ALLOWED . THE AO SHALL ALSO VERIFY THE CONTENTIONS OF THE ASSESSE E COMPANY THAT THE ASSESSEE COMPANY HAS VOLUNTARILY DISALLOWED EXPENS ES OF RS. 1,48,92,353/- WITH RESPECT TO NON DEPOSIT OF TDS AND ADDED THE SA ME TO INCOME OF THE ASSESSEE COMPANY WHILE FILING THE RETURN OF INCOME WITH THE REVENUE AND ITS DISALLOWANCE AGAIN BY THE AUTHORITIES BELOW HAS LED TO DOUBLE DISALLOWANCE OF EXPENSES TO THE TUNE OF RS 1,48,92,353/- WHICH , I N OUR CONSIDERED VIEW IS NOT PERMITTED BY THE ACT AND HENCE THE AO IS DIRECT ED TO GRANT APPROPRIATE RELIEF IN ACCORDANCE WITH LAW AFTER CONDUCTING NECE SSARY VERIFICATIONS. THE ASSESSEE COMPANY IS DIRECTED TO APPEAR BEFORE THE A .O. TO FILE ALL THE RELEVANT EVIDENCES WITH RESPECT TO THE PAYMENT MADE OF TDS T O THE CREDIT OF CENTRAL GOVERNMENT BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT TO ITA 362/M/11 & 646/M/11 11 SUBSTANTIATE ITS CLAIM. NEEDLESS TO SAY, THE A.O. SHALL GRANTS SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCOR DANCE WITH THE LAW. WE ORDER ACCORDINGLY. ITA NO. 362/MUM/2011 (REVENUES APPEAL) 15. THE GROUNDS RAISED BY THE REVENUE IN THE MEMO O F APPEAL FILED WITH THE TRIBUNAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE- AND IN LAW, THE LD CIT(A) ERRED IN DELETING THE DISALLOWANCE OF I NTEREST TO THE EXTENT OF RS.5,39,116/- INSPITE OF THE FACTS BROUGHT OUT IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAD UTILIZED INTEREST-BEARING BORROWED FUNDS FOR NON-BUSINESS PURPOSES BY ADVANCING PART OF THE BORROW ED FUNDS AS INTEREST-FREE ADVANCES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN GRANTING RELIEF TO THE EXTENT O F RS. 1,10,01,655/- TO THE ASSESSEE IN RESPECT OF INTEREST DISALLOWED U/S. 36(1)(III) OF THE I.T. ACT, 1961, OVERLOOKING THE FACT THAT THE ASSESSEE WAS P ROVIDED SUFFICIENT OPPORTUNITIES DURING THE ASSESSMENT PROCEEDINGS TO SU BMIT THE WORKING OF INTEREST PAID AND THAT THESE OPPORTUNITIES WERE NOT AVAILED OF. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) BE SET ASIDE ON THE GROUNDS MENTIONED ABOVE AND THAT OF THE ASSESSING OFFI CER BE RESTORED. 16. ON PERUSAL OF THE BALANCE SHEET OF THE ASSESSEE COMPANY, THE AO OBSERVED THAT THE ASSESSEE COMPANY HAS GIVEN LOANS AND ADVANCES OF RS. 7,41,04,000/- FOR THE YEAR UNDER CONSIDERATION, OUT OF WHICH AN AMOUNT OF RS. 2 CRORES AS LOAN WAS GIVEN TO M/S MANGALYA TRAD ING AND INVESTMENT. THE ASSESSEE COMPANY WAS ASKED TO SUBMIT EXPLANATION AS TO WHETHER ANY INTEREST WAS CHARGED ON THESE LOANS AND ADVANCES. IN REPLY, THE ASSESSEE COMPANY SUBMITTED THAT THE AMOUNT OF RS 2 CRORES AD VANCED WAS NOT FROM INTEREST BEARING FUND AND NO INTEREST COULD BE APPO RTIONED AND DISALLOWED, THE SAID CONTENTION OF THE ASSESSEE COMPANY WAS REJ ECTED BY THE A.O. SIMILARLY, THE AO HELD THAT THE MERE STATEMENT BY T HE ASSESSEE COMPANY THAT THE SAID ADVANCES ARE NOT MADE OUT OF INTEREST BEAR ING BORROWED FUNDS DOES ITA 362/M/11 & 646/M/11 12 NOT HOLD GOOD, HENCE, THE CONTENTION OF THE ASSESSE E COMPANY WAS REJECTED BY THE A.O. AS NO CASH FLOW STATEMENT OR ANY OTHER DOC UMENT OF SUCH NATURE TO ESTABLISH THE NEXUS BETWEEN THE SOURCE OF FUNDS AND ITS APPLICATION THEREON WAS SUBMITTED BY THE ASSESSEE COMPANY. THE A.O. ACC ORDINGLY WORKED OUT THE DISALLOWANCE OF THE INTEREST TO RS. 5,39,116/- U/S 37(1) OF THE ACT RELYING ON THE JUDGMENT OF CIT V. ABHISHEK INDUSTRIES 286 ITR 1 (P & H . HC) AND PHALTON SUGAR WORKS LIMITED V. CIT 208 ITR 969. 17.AGGRIEVED BY THE ASSESSMENT ORDER DATED 22.12.20 09 PASSED U/S 143(3) OF THE ACT BY THE AO, THE ASSESSEE COMPANY CARRIED THE MATTER BEFORE THE CIT(A) AND THE CIT(A) DELETED THE DISALLOWANCE BY HOLDING AS UNDER:- 4. I HAVE CONSIDERED THE ISSUE. A SIMILAR ISSUE AR OSE IN APPEAL FOR THE ASSESSMENT YEAR 2005-06. THE SAME LOAN OF RS.2,00,00,000/- STANDING IN THE NAME OF MANGALAYA TRADING & INVESTMENT WAS ALSO SUBJECT MATTER OF SIMILAR DISAL LOWANCE OF INTEREST ON BORROWED FUND IN THAT YEAR. I FOUND THA T THE AMOUNT APPEARING IN THE NAME OF MANGALAYA TRADING & INVEST MENT WAS ADVANCED DURING THE ACCOUNTING YEAR 1994-95 AND INT EREST WAS RECEIVED THEREON IN EARLIER YEARS. A PART OF IT, RS . 46.03 LACS WAS ALSO REFLECTED AS INTEREST RECEIVABLE FROM THE SAID LOAN AS SHOWN UNDER 'CURRENT ASSETS, LOANS & ADVANCES'. NO INTERE ST WAS PROVIDED ON THAT LOAN IN THE PAST FEW YEARS. EVEN I F THE BORROWED FUND FOUND WAY INTO THAT LOAN IT WAS NOT PERMISSIBL E TO HOLD SUBSEQUENTLY THAT THE BORROWED FUND WAS DIVERTED FO R NON BUSINESS PURPOSES SINCE NO INTEREST WAS CHARGED ON THE IMPUGNED LOAN IN LATER YEARS. I, THEREFORE, DELETED THE ADDITION MADE ON ACCOUNT OF DISALLOWANCE OF PROPORTIONATE IN TEREST IN THAT YEAR. THE FACTS AND CIRCUMSTANCES REMAIN THE SAME I N THE CURRENT YEAR. THE AO HAS NO JUSTIFICATION TO DISALL OW ANY PORTION OF INTEREST PAID ON BORROWED FUND. THE ADDITION MAD E RS.5.39, 116 IS DELETED. THE ISSUE IS DECIDED IN FAVOUR OF T HE APPELLANT. 18. AGGRIEVED BY THE ORDERS DATED 08-11-2010 OF THE CIT(A), THE REVENUE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 19. THE LD. D.R. RELIED ON THE ORDER OF THE A.O.. ITA 362/M/11 & 646/M/11 13 20. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATE RIAL. FROM THE ORDER OF THE CIT(A), IT EMERGES THAT THE LOAN OF RS. 2 CR ORES WAS GRANTED IN THE FINANCIAL YEAR 1994-95 TO MANGALAYA TRADING AND INV ESTMENT AND INTEREST WAS RECEIVED THEREON IN EARLIER YEARS AND THERE IS AN OUTSTANDING AMOUNT OF RS. 46.03 LACS ALSO REFLECTED AS INTEREST RECEIVABL E FROM THE SAID LOAN IN THE BALANCE SHEET OF THE ASSESSEE COMPANY UNDER THE HEA D CURRENT ASSETS, LOANS AND ADVANCES AS AT THE YEAR END WHICH HAS NO T BEEN RECEIVED BY THE ASSESSEE COMPANY FROM THE SAID CONCERN. IN OUR CON SIDERED VIEW , THE REVENUE HAS IN THE EARLIER YEARS DULY ACCEPTED THE SAID LOAN OF RS. 2 CRORES AS INTEREST BEARING LOAN ON WHICH INTEREST WAS RECE IVED BY THE ASSESSEE FROM THE SAID LOAN WHICH WAS OFFERED FOR TAXATION AND AR OUND RS.46.03 LACS BEING INTEREST RECEIVABLE ON THE SAID LOAN IS STILL RECEI VABLE AS AT YEAR AND MERELY BECAUSE NOW INTEREST IS NOT CHARGED BY THE ASSESSEE COMPANY AGAINST THE SAID LOAN , THE REVENUE CANNOT CHANGE ITS STAND AND TAKE A VIEW THAT NOW THE SAID LOAN IS NOT ADVANCED WHOLLY AND EXCLUSIVELY FO R THE PURPOSES OF BUSINESS. ONCE THE SAID LOAN GRANTED BY THE ASSESSEE COMPANY WAS CARRYING INTEREST AND INCOME OF WHICH IS CHARGED TO TAX BY THE REVENU E IN THE EARLIER YEARS ACCEPTING THAT THE SAID LOAN WAS GRANTED FOR THE BU SINESS OF THE ASSESSEE COMPANNY , THEN THE INTEREST PAID ON THE AMOUNT BOR ROWED TO GRANT SUCH LOAN IS TO BE ALLOWED AS DEDUCTION AND MERELY BECAU SE SUBSEQUENTLY NO INTEREST IS CHARGED BY THE ASSESSEE COMPANY ON SUCH INTEREST BEARING LOAN WILL NOT MAKE THE INTEREST PAID ON BORROWINGS FOR M AKING SUCH ADVANCE AS NOT ELIGIBLE FOR DEDUCTION FOR COMPUTING INCOME OF THE ASSESSEE COMPANY BY TREATING THE SAME AS NOT INCURRED WHOLLY AND EXCLUS IVELY FOR THE PURPOSES OF BUSINESS. IN VIEW OF OUR ABOVE DISCUSSIONS AND REAS ONING KEEPING IN VIEW THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE , THE CONTENTIONS OF THE REVENUE IS REJECTED AND DISALLOWANCE OF INTEREST OF RS.5,39 ,116/- BY THE AO IS NOT JUSTIFIED AND WE DONOT FIND ANY INFIRMITY IN THE OR DERS OF THE CIT(A). GROUND NO. 1 OF THE REVENUES APPEAL IS DISMISSED. ITA 362/M/11 & 646/M/11 14 21. IN GROUND NO. 2, THE REVENUE CHALLENGED THE ORD ERS OF THE CIT(A) IN GRANTING RELIEF TO THE EXTENT OF RS. 1,10,01,655/- TO THE ASSESSEE COMPANY IN RESPECT OF INTEREST DISALLOWED U/S 36(1)(III) OF TH E ACT OVERLOOKING THE FACT THAT THE ASSESSEE COMPANY WAS PROVIDED SUFFICIENT OPPORT UNITIES DURING THE ASSESSMENT PROCEEDINGS TO SUBMIT THE WORKING OF INT EREST PAID AND THAT THESE OPPORTUNITIES WERE NOT AVAILED OF. 22. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E ASSESSEE COMPANY WAS ASKED TO FURNISH THE DETAILS REGARDING THE DISA LLOWANCE U/S 36(1)(III) OF THE ACT OUT OF THE INTEREST EXPENSES DEBITED TO THE P&L ACCOUNT DURING THE PREVIOUS YEAR. HOWEVER, THE ASSESSEE COMPANY FAILE D TO SUBMIT ANY EXPLANATION IN THIS REGARD AND HENCE IT IS PRESUMED BY THE AO THAT THE ASSESSEE COMPANY HAS NOTHING TO SAY. THE A.O. HELD THAT THE CAPITAL WORK-IN- PROGRESS AMOUNTING TO RS. 37,66,12,000/- HAS NOT B EEN PUT TO USE BY THE ASSESSEE COMPANY. THE A.O. HELD THAT THE ABOVE INVE STMENT IN CAPITAL WORK- IN-PROGRESS IS MADE OUT OF BORROWED FUNDS OF RS.144 ,90,04,000/- AVAILABLE WITH THE ASSESSEE COMPANY ON WHICH INTEREST HAS BEE N PAID BY THE ASSESSEE COMPANY AND HENCE ALL CONDITIONS ARE MET AS PER SEC TION 36(1)(III) OF THE ACT AND ACCORDINGLY THE CIT(A) WORKED OUT THE DISALLOWA NCE OF INTEREST OF RS. 2,15,56,366/- BEING INCURRED TOWARDS INVESTMENT IN CAPITAL WORK-IN-PROGRESS WHICH IS NOT PUT TO USE. 23. AGGRIEVED BY THE ASSESSMENT ORDERS DATED 22.12. 2009, THE ASSESSEE COMPANY PREFERRED AN APPEAL BEFORE THE CIT(A) AND CONTENDED THAT THE A.O. INSTEAD OF RESTRICTING THE DISALLOWANCE RELATABLE T O THE TERM LOAN ATTRIBUTABLE TO CAPITAL WORK-IN-PROGRESS HAS ALSO CONSIDERED INT EREST ON WORKING CAPITAL LOANS PAID BY THE ASSESSEE COMPANY AS ALSO USED FOR CAPITAL WORK-IN-PROGRESS. THE ASSESSEE COMPANY FURTHER SUBMITTED THAT INTERES T PAID ON TERM LOAN AMOUNTS ONLY TO RS. 2,73,26,281/- AS AGAINST INTER EST OF RS. 8,29,41,000/- TAKEN BY THE A.O. THE OTHER INTEREST PAYMENT WAS O N WORKING CAPITAL AND ITA 362/M/11 & 646/M/11 15 ALSO IN THE NATURE OF BILL DISCOUNTING AND FINANCE CHARGES. THE ASSESSEE COMPANY, THEREFORE, SUBMITTED THAT THE INTEREST REL ATABLE TO TERM LOAN ATTRIBUTABLE TO CAPITAL WORK-IN-PROGRESS WORKS OUT TO RS. 1,05,54,711/- AND DISALLOWANCE BE RESTRICTED TO THE AMOUNT OF RS.1,05 ,54,711/-. THE CIT(A) AFTER CONSIDERING THE SUBMISSION MADE BY THE ASSESS EE COMPANY HELD AS UNDER:- 7. I HAVE CONSIDERED THE ISSUE. IT IS SEEN FROM TH E DETAILS FILED BEFORE THE AO AND THE AUDITED ACCOUNTS OF THE CURRE NT YEAR THAT THE INTEREST PAID ON TERM LOAN AND THAT ON LOAN TAK EN FOR LAND WAS ONLY RS.2,73,26,281/- WHICH ALONE CAN BE CONSID ERED OUT OF TOTAL INTEREST PAYMENT OF RS.8,29,41,000/- FOR ALLO CATION OF INTEREST RELATABLE TO THE CAPITAL WORK-IN-PROGRESS. THE REMAINING INTEREST PAYMENT IS ON WORKING CAPITAL AND ALSO THE NATURE OF BILL DISCOUNTING AND FINANCE CHARGES AND NOT RELATABLE T O THE TERM LOAN RELATABLE TO CAPITAL WORK-IN-PROGRESS. THEREFO RE, AS WORKED OUT BY THE APPELLANT, THE INTEREST RELATABLE TO FUN DS UTILIZED IN CAPITAL WORK-IN-PROGRESS FOR THE YEAR UNDER CONSIDE RATION WORKS OUT TO ONLY RS.1,05,54,711 AND NOT RS. 2,15,56,366/ - AS WORKED OUT BY THE AO. THE DISALLOWANCE OF INTEREST U/S 36( 1)(III) IS, THEREFORE, RESTRICTED TO THE AFORESAID SUM. THE APP ELLANT GETS RELIEF OF RS.1,10,01,655/-. THE ISSUE IS DECIDED PA RTLY IN FAVOUR OF THE APPELLANT. 24. AGGRIEVED BY THE ORDERS OF CIT(A) IN RESTRICTIN G THE DISALLOWANCE TO RS. 1,05,54,711/-, THE REVENUE IS IN FURTHER APPEAL BEF ORE US. 25. THE LD. D.R. RELIED UPON THE ORDER OF THE A.O. 14. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERI AL AVAILABLE ON RECORD. WE OBSERVE THAT THE ASSESSEE COMPANY HAS DEBITED RS . 8,29,41,000/- IN PROFIT AND LOSS A/C AS INTEREST PAID ON BORROWED FUNDS. TH E ASSESSEE COMPANY HAS PAID RS. 5,56,14,719/- AS INTEREST TOWARDS WORKING CAPITAL LOAN AND BILL DISCOUNTING AND FINANCE CHARGES AS OBSERVED BY THE CIT(A) FROM THE PERUSAL OF THE AUDITED ACCOUNTS AND THE DETAILS FILED BY THE A SSESSEE COMPANY. THE CIT(A) HAS ALSO GIVEN A CLEAR FINDING OF FACT BASED ON THE BOOKS OF ACCOUNTS OF THE ASSESSEE COMPANY AND SUBMISSIONS MADE BEFORE TH E CIT(A) THAT THE ITA 362/M/11 & 646/M/11 16 ASSESSEE COMPANY HAS PAID INTEREST OF RS. 2,73,26,2 81/- TOWARDS INTEREST ON TERM LOAN AND THAT ON LOAN TAKEN FOR LAND WHICH ALO NE CAN BE CONSIDERED FOR ALLOCATION OF INTEREST FOR CAPITAL WORK-IN-PROGRESS . THE CIT(A) HAS WORKED OUT AN AMOUNT OF RS. 1,05,54,711/- BEING INTEREST TOWAR DS THE FUNDS UTILIZED FOR CAPITAL WORK-IN-PROGRESS WHICH IS TO BE DISALLOWED U/S 36(1)(III) OF THE ACT AND NOT RS. 2,15,56,366/- AS WORKED OUT BY THE A.O. WHI CH IS FINDING OF THE FACT BY THE CIT(A) BASED ON THE AUDITED ACCOUNTS AND OTH ER SUBMISSIONS BY THE ASSESSEE COMPANY BEFORE THE CIT(A) . THE FINDINGS O F FACT GIVEN BY THE CIT(A) AS STATED ABOVE IS BASED ON THE ANALYSIS OF BOOKS O F ACCOUNTS AND THE SUBMISSIONS OF THE ASSSESSEE COMPANY WHILE IN THE C ASE OF THE AO, HE HAS MERELY WORKED OUT THE DISALLOWANCE OF INTEREST BASE D ON THE ASSUMPTION THAT THE ENTIRE INTEREST PAID BY THE ASSESSEE COMPANY IS TOWARDS TERM LOANS WHILE IGNORING THE CRUCIAL FACT THAT THE INTEREST EXPENSE S INCLUDED INTEREST ON WORKING CAPITAL ALSO. HENCE , IN VIEW OF THE CLEAR FINDING OF FACT BY THE CIT(A) THAT THIS AMOUNT OF RS. 1,05,54,711/- IS THE DISALL OWANCE OF INTEREST AS PER THE PROVISIONS OF SECTION 36(1)(III) OF THE ACT BEI NG PAID TOWARDS THE CAPITAL WORK-IN-PROGRESS WHICH IS NOT PUT TO USE TILL YEAR END , WE DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE CIT(A) AND WE UPHOLD THE SAME. THIS GROUND OF THE REVENUE IS ACCORDINGLY DISMISSED. WE ORDER ACCO RDINGLY. 15. IN THE RESULT, APPEAL FILED BY THE ASSESSEE COM PANY IN ITA NO. 646/MUM/11 IS ALLOWED FOR STATISTICAL PURPOSE WHERE AS APPEAL FILED BY THE REVENUE IN ITA NO. 362/MUM/11 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DECEMBER, 2015. # $% &' 18 -12-2015 ( ) SD/- SD/- (AMIT SHUKLA) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 18-12-2015 [ ITA 362/M/11 & 646/M/11 17 .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI H BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI