MR. SANJAY GANGADHAR NAYAK, MUMBAI V. ITO 26(2)(4),

ITA 3692/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2185 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 06-04-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 05-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L K AGRAWAL
• Keywords: Salary income; Bonafide belief; Reasonable cause; Wrong claim; Difference of opinion; Corroborative evidences
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI PRAMOD KUMAR , ( AM ) ITA NO. 3692/MUM/2009 ASSESSMENT YEAR : 2003 - 04 MR. SANJAY GANGADHAR NAYAK 4/10, KAMANA SOCIETY NEAR SIDHIVINA YAK TEMPLE PRABHADEVI MUMBAI - 400 02 5 . ..( APPELLANT ) P.A. NO. ( AABPN 5067 B) VS. INCOME TAX OFFICER WARD 26(2)(4) MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI MANDAR VAIDYA RESPONDENT BY : SHRI L.K. AGRAWAL O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 27.1.2009 PAS SED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2003 - 04. 2. IT IS FOUND THAT THE APPEAL FILED BY THE ASSESSEE IS LATE BY 45 DAYS. ITA NO. 3692/M/09 A.Y: 03 - 04 2 3. IT WAS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT ASSESSEE S FATHER MR. GANGADHAR GANPATI NAYAK AGED ABOUT 75 YEA RS HAS BEEN KEEPING UNWELL AND THE ASSESSEE WAS REQUIRED TO ATTEND HIM, THEREFORE, THE ASSESSEE WAS NOT ABLE TO DEVOTE ANY TIME TOWARDS HIS PROFESSIONAL AND OTHER AFFAIRS. IN SUPPORT , AN AFFIDAVIT DATED 23.5.2009 OF THE ASSESSEE WAS ALSO FILED. APART FROM THIS , HE HAS ALSO FILED SUPPORTING EVIDENCE I.E. MEDICAL REPORTS ETC. HE, THEREFORE SUBMITS THAT THE DELAY MAY BE CONDONED WHICH WAS NOT OBJECTED TO BY THE LD. DEPARTMENTAL REPRESENTATIVE . 4. THAT BEING SO, AND IN THE ABSENCE OF ANY CONTRARY MATERIAL P LACED ON RECORD BY THE REVENUE WE ARE SATISFIED THAT THERE WAS REASONABLE CAUSE IN FILING APPEAL NOT IN TIME AND ACCORDINGLY THE DELAY IS CONDONED. 5. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE, AN INDIVIDUAL, DERIVES INCOME FROM SALARY. THE RETURN WAS FILED DECLARING TOTAL INCOME AT RS.7 . 58 , 700/ - DURING THE COURSE OF ASSESSMENT IT WAS INTERALIA OBSERVED BY THE AO THAT THE ASSESSEE HAS CLAIMED DEDUCTION U./S.80RRA OF RS.3 , 45 , 845/ - IN THE RETURN OF INCOME. THE ASSESSEE WAS ASKED TO FURNISH TH E APPROVAL OBTAINED FROM THE PRESCRIBED AUTHORITY U/S.80RRA(2)(II) OF THE IT ACT, 1961( T HE ACT) IN SUPPORT OF THE DEDUCTION CLAIMED. THE ASSESSEE FAILED TO FURNISH THE SAME TILL ITA NO. 3692/M/09 A.Y: 03 - 04 3 DATE, THE AO DISALLOWED THE DEDUCTION CLAIMED RS.345845/ - AND ADDED TO THE IN COME OF THE ASSESSEE. ON APPEAL THE LD. CIT(A) WHILE OBSERVING THAT THE APPELLANT COULD NOT SUBSTANTIATE ITS CLAIM, SUSTAINED THE ADDITION MADE BY THE AO AGAINST WHICH NO SECOND APPEAL WAS FILED BY THE ASSESSEE. 6. WHILE MAKING THE ASSESSMENT THE AO ALSO I NITIATED PENALTY PROCEEDING U/S.271(1)(C) OF THE ACT. IN RESPONSE TO SHOW CAUSE AS TO WHY PENALTY U/S. 271(1)(C) MAY NOT BE IMPOSED IT WAS INTERALIA SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE WAS THE EMPLOYEE OF BELGIUM COMPANY AND EARNED FOREIGN INCOME WHICH HE DECLARED. THAT HE HAS SUBMITTED ALL ORIGINAL FORM NO. 10H AND HAS ALSO PAID ADVANCE TAX AND GIVEN ALL DISCLOSURE TO THE DEPARTMENT ABOUT CLAIM U/S.80RRA. IT WAS FURTHER SUBMITTED THAT ASSESSEE AHS FURNISHED CORRECT INFORMATION ABOUT HIS INCOME WHICH HE HAS RECEIVED AND CLAIMED RELIEF U/S.80RRA AS PER SALARY CERTIFICATE ISSUE D BY THE EMPLOYER AND AS PER FORM NO.10H THERE IS NO WILLFUL NEGLECT OR PROVIDING INTENTIONALLY WRONG INCOME OR INFORMATION ON THE PART OF THE ASSESSEE. IT WAS THEREFORE PR AYED THAT PENALTY MAY BE DROPPED. HOWEVER, THE AO WAS OF THE VIEW THAT THE ASSESSEE HA S MADE A FALSE STATEMENT WHILE CLAIMING DEDUCTION U/S.80RRA AS SERVICE RENDERED OUT OF INDIA . IN FACT, THE SERVICE WAS RENDERED BY THE ASSESSEE IN INDIA FOR HIS FOR EIGN EMPLOYER. ACCORDING TO SEC. 80RRA THE SERVICES SHOULD BE RENDERED ITA NO. 3692/M/09 A.Y: 03 - 04 4 OUT OF INDIA. HENCE, THE ASSESSEE HAS MADE A WRONG CLAIM OF DEDUCTION AND IT IS NOT A DEBATABLE ISSUE AS THE ACT IS VERY CLEAR ON THIS ISSUE. THUS, THE ASSESSEE HAS MADE CLAIM UNDER S ECTION 80RRA ON FALSE GROUNDS AND HENCE LIABLE TO PENALTY AND ACCORDINGLY HE IMPOSED PENALTY OF RS.109258/ - VIDE ORDER DATED 22.5.2008 PASSED U/S.271(1)(C) OF THE ACT. ON APPEAL, THE LD. CIT(A) WHILE RELYING ON THE DECISION IN K.P. MADHUSUDHANAN VS. CIT ( 2001 ) 251 ITR 99 (SC) AND UNION OF INDIA VS. DHARMENDRA TEXTILE PROCESSORS ( 2008 ) 306 ITR 277(SC) UPHELD THE PENALTY IMPOSED BY THE AO. 7. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING IN ALL THE GROUNDS THE SUSTENANCE OF PENALTY IMPOSED BY THE AO RS.1 , 09 , 258/ - U/S.271(1)(C) OF THE ACT. 8. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE ASSESSEE WHILE REITERATING THE SAME SUBMISSIONS AS SUBMITTED BEFORE THE AO AND THE LD. C I T(A) ALSO RELIED ON THE FOLLOWING DE CISIONS: CIT VS. RELIANCE PETROPRODUCTS PVT. LTD.(2010) 322 ITR 158(SC) CIT VS. SIDHARTHA ENTERPRISES (2009) 184 TAXMAN 460 (P&H) ASSTT. CIT VS. VIP INDUSTRIES LTD.(2009) 122 TT J (MUMBAI)289 KANBAY SO F TWARE INDIA (P) LTD. VS. DY.CIT (2009) 122 TTJ (PUNE)72 1. HE THEREFORE SUBMITS THAT THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE LD. CIT(A) BE DELETED. ITA NO. 3692/M/09 A.Y: 03 - 04 5 9. ON THE OTHER HAND THE LD. DR WHILE RELYING ON THE ORDER OF THE AO AND THE LD. CIT(A) ALSO RELIED ON THE FOLL OWING DECISIONS : GANESH TEXTILES VS. CIT (2002) 253 ITR 216(GUJ.) K.P. MADHUSUDHANAN VS. CIT (2001) 251 ITR 99 (SC) 10. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THERE IS NO DISPUTE THAT THE ASSESSEE HAS FILED THE R ETURN CLAIMING DEDUCTION U/S. 80RRA ON THE BASIS OF FORM NO.10H ISSUED BY BANK OF BARODA ON MONTHLY BASIS RECORDING REMITTANCES. HOWEVER , DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS OBSERVED BY THE AO THAT THE ASSESSEE HAS FAILED TO FURNISH THE AP PROVAL OBTAINED FROM THE PRESCRIBED AUTHORITY U/S.80RRA(2)(II) OF THE ACT, AND HENCE HE DISALLOWED THE CLAIM OF THE ASSESSEE. ON APPEAL BEFORE THE LD. CIT(A) IT WAS INTERALIA SUBMITTED BY THE ASSESSEE THAT AS PER PROVISION OF SERVICE TAX LAWS WHEREIN THE SERVICES SHALL BE CONSIDERED AS EXPORT IF THE RECIPIENT OF SERVICE IS LOCATED OUTSIDE INDIA. THE ASSESSEE HAS ALSO RELIED ON BLACK LAW DICTIONARY WHICH DEFINES USE AS USEFULNESS OF THE APPELLANT AND FURTHER EXPLAINED THAT IF THE SERVICE IS RECEIVED BY THE OVERSEAS RECIPIENT AND HE IS IN A POSITION TO DERIVE THE BENEFIT FOR WHICH THE SERVICE WAS INTENDED IT WOULD BE CONSIDERED AS USED OUTSIDE INDIA. HOWEVER, THE LD. CIT(A) OBSERVED THAT THE CLAIM OF DEDUCTION U/S. 80RRA IS NOT ALLOWABLE TO THE A PPELLANT ON DIFFERENT GROUNDS. ITA NO. 3692/M/09 A.Y: 03 - 04 6 ACCORDING TO THE LD. CIT(A) AS PER PROVISIONS OF SEC 80RRA THE SERVICE HAS TO BE RENDERED BY THE PERSON OUTSIDE INDIA. IN THE CASE OF THE APPELLANT, THE APPELLANT HAS FAILED TO PRODUCE ANY EVIDENCE THAT THE SERVICE HAS BEEN RENDERED OUTSIDE INDIA AND HENCE HE HELD THAT THE APPELLANT IS NOT ENTITLED TO DEDUCTION U/S.80RRA. 11. FROM THE READING OF THE ABOVE IT IS CLEAR THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S.80RRA WITH SUPPORTING EVIDENCE OF FORM NO.10H ON THE BONAFIDE B ELIEF THAT THE SAME IS ALLOWABLE. THE AO HAS DISALLOWED THE SAME ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FURNISH APPROVAL OBTAINED FROM PRESCRIBED AUTHORITY AS PROVIDED U/S.80RRA(2)(II) OF THE ACT. BEFORE THE LD. CIT(A)THE ASSESSEE HAS FURTHER SUPPO RTED HIS CLAIM AS PER PROVISIONS OF SERVICE TAX LAWS. HOWEVER, THE LD. CIT(A) WAS OF THE VIEW THAT SINCE THE SERVICE HAS BEEN RENDERED IN INDIA THE APPELLANT IS NOT ENTITLED TO DEDUCTION U/S.80RRA. THUS, IT IS NOT ONLY A CASE OF BONAFIDE BELIEF ON THE P ART OF THE ASSESSEE BUT ALSO THERE WAS A DIFFERENCE OF OPINION . 12. IT IS SETTLED LAW THAT P ENALTY UNDER SECTION 271(1)(C) IS A CIVIL LIABILITY AND THE REVENUE IS NOT REQUIRED TO PROVE WILLFUL CONCEALMENT AS HELD BY THE HON BLE SUPREME COURT IN CASE THE OF UNION OF INDIA VS. DHARMENDRA TEXTILES AND PROCESSORS (2008) 306 ITR 277(SC). HOWEVER, EACH AND EVERY ADDITION MADE IN THE ASSESSMENT CANNOT ITA NO. 3692/M/09 A.Y: 03 - 04 7 AUTOMATICALLY LEAD TO LEVY OF PENALTY FOR CONCEALMENT OF INCOME. A CASE FOR IMPOSITION OF PENALTY HAS TO BE EX AMINED IN TERMS OF THE PROVISIONS OF EXPLANATION 1 TO SECTION 271(1)(C). SECONDLY, IT IS ALSO A SETTLED LEGAL POSITION THAT PENALTY PROCEEDINGS ARE DIFFERENT FROM ASSESSMENT PROCEEDINGS. THE FINDING GIVEN IN THE ASSESSMENT THOUGH IS A GOOD EVIDENCE BUT TH E SAME IS NOT CONCLUSIVE IN PENALTY PROCEEDINGS. 13. IN K.P. MADHUSUD HAN AN (SUPRA), THE ASSESSEE INTERALIA STATED THAT SINCE IT WAS UNABLE TO FURNISH EVIDENCE FOR SUCH LOANS IT OFFERED THE AM OUN T OF RS.93,000/ - AS ADDITIONAL INCOME. IN PENALTY PROCEEDI NG THE AO NOTED THAT IT HAS OFFERED THE AM OUN T OF RS.93,000/ - AS ADDITIONAL INCOME AND APPLYING EXPLANATION 1(B) TO SEC 271 IMPOSED A PENALTY ON THE ASSESSEE. T HE A PPELLATE TRIBUNAL CANCELLED THE PENALTY, INTERALIA , FOR THE REASON THAT IN THE NOTICE INITI ATING PENALTY PROCEEDINGS THE ASSESSEE WAS NOT INTIMATED ABOUT THE PROPOSED ACTION UNDER EXPLANATION 1(B) TO SECTION 271(1)(C); BUT THE HON BLE HIGH COURT ON REFERENCE HELD THAT THE IMPOSITION O F PENALTY WAS VALID. ON APPEAL , THE HON BLE S UPREME C OURT HEL D, AFFIRMING THE DECISION OF THE HON BLE HIGH COURT THAT THE PENALTY WAS VALIDLY LEVIED FURTHER HELD THAT NO EXPRESS INVOCATION OF THE EXPLANATION TO SEC. 271 IN THE NOTICE U/S.271 IS NECESSARY BEFORE THE PROVISIONS OF THE EXPLANATION ARE APPLIED. HOWEV ER, IT IS NOT THE CASE OF THE ASSESSEE THAT THE PENALTY IS ITA NO. 3692/M/09 A.Y: 03 - 04 8 NOT LEVIABLE AS NOTICE INITIATING PENALTY PROCEEDING THE ASSESSEE WAS NOT INTIMATED ABOUT THE PROPOSED ACTION UNDER EXPLANATION 1(B) TO SEC.271(1)(C). THEREFORE, THE DECISION RELIED ON BY THE LD. DR IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 14. IN GANESH TEXTILES SUPRA, IT HAS BEEN HELD (AT PAGE 216 HEAD NOTES OF ITR 253 ) AS UNDER : HELD, THAT INTEREST PAID TO THE PARTNER WAS NOT AN ALLOWABLE DEDUCTION UNDER SECTION 40(B) OF THE AC T. IN THE CIRCUMSTANCES, THE ASSESSEE COULD HAVE SHOWN THAT THE AMOUNT OF INTEREST PAID TO THE SO CALLED DEPOSITOR WAS IN FACT INTEREST PAID TO THE PARTNER. THEREFORE, THE ASSESSEE HAD CONCEALED THE PARTICULARS OF ITS INCOME BY NOT REVEALING THE FACT AND M ADE AN EFFORT TO AVOID DISALLOWANCE UNDER THE PROVISIONS OF SECTION 40(B) AND THE TRIBUNAL WAS JUSTIFIED IN CONFIRMING THE PENALTY OF RS. 8,936 IMPOSED BY THE INCOME - TAX OFFICER UNDER SECTION 271(1)(C). WHEREAS IN THE CASE BEFORE US IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF ITS INCOME OR HAS NOT DISCLOSED THE COMPLETE FACTS OF THE DEDUCTION CLAIMED OR THE CLAIM MADE BY THE ASSESSEE IS NOT SUPPORTED BY THE CERTIFICATE ISSUED BY THE BANK , FILED ALONG WITH THE RET URN . THEREFORE, THE DECISION RELIED ON BY THE LD. DR IS DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. ITA NO. 3692/M/09 A.Y: 03 - 04 9 1 5. IN HINDUSTAN STEEL LTD. VS. STATE OF ORISSA (1972) 83 ITR 26(SC) IT HAS BEEN OBSERVED AND HELD BY THEIR LORDSHIPS AS UNDER (PAGE 26): AN ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF A QUASI - CRIMINAL PROCEEDING, AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONEST, OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATT ER OF DISCRETION OF THE AUTHORITY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. EVEN IF A MINIMUM PENALTY IS PRESCRIBED, THE AUTHORITY COMPETENT TO IMPOSE THE PENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY, W HEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELIEF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE. 1 6 . RECENTLY THEIR LORDSHIPS IN CIT VS. RELIANCE P ETROPRODUCTS PVT. LTD. (2010) 322 ITR 158 (SC) AFTER CONSIDERING VARIOUS DECISIONS INCLUDING DILIP N. SHROFF VS. JC I T (2007) 291 ITR 519(SC) AND UNION OF INDIA VS. DHARMENDRA TEXTILE PR O CESSORS (2008) 306 ITR 277(SC) HAVE OBSERVED AND HELD (PAGE 158 HEA DNOTES) AS UNDER : A GLANCE AT THE PROVISIONS OF SECTION 271(1)(C) OF THE INCOME - TAX ACT, 1961, SUGGESTS THAT IN ORDER TO BE COVERED BY IT, THERE HAS TO BE CONCEALMENT OF THE PARTICULARS OF THE INCOME OF THE ASSESSEE. SECONDLY, THE ASSESSEE MUST HAVE FURNISHED INACCURATE PARTICULARS OF HIS INCOME. THE MEANING OF THE WORD PARTICULARS USED IN ITA NO. 3692/M/09 A.Y: 03 - 04 10 SECTION 271(1)(C) WOULD EMBRACE THE DETAILS OF THE CLAIM MADE. WHERE NO INFORMATION GIVEN IN THE RETURN IS FOUND TO BE INCORRECT OR INACCURATE, THE ASSESSEE CAN NOT BE HELD GUILTY OF FURNISHING INACCURATE PARTICULARS. IN ORDER TO EXPOSE THE ASSESSEE TO PENALTY, UNLESS THE CASE IS STRICTLY COVERED BY THE PROVISION, THE PENALTY PROVISION CANNOT BE INVOKED. BY NO STRETCH OF IMAGINATION CAN MAKING AN INCORRECT CLAIM TANTAMOUNT TO FURNISHING INACCURATE PARTICULARS. THERE CAN BE NO DISPUTE THAT EVERYTHING WOULD DEPEND UPON THE RETURN FILED BY THE ASSESSEE, BECAUSE THAT IS THE ONLY DOCUMENT WHERE THE ASSESSEE CAN FURNISH THE PARTICULARS OF HIS INCOME. WHEN SUCH PARTICU LARS ARE FOUND TO BE INACCURATE, THE LIABILITY WOULD ARISE. TO ATTRACT PENALTY, THE DETAILS SUPPLIED IN THE RETURN MUST NOT BE ACCURATE, NOT EXACT OR CORRECT, NOT ACCORDING TO THE TRUTH OR ERRONEOUS. WHERE THERE IS NO FINDING THAT ANY DETAILS SUPPLIED B Y THE ASSESSEE IN ITS RETURN ARE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE THERE IS NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C). A MERE MAKING OF A CLAIM, WHICH IS NOT SUSTAINABLE IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURA TE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN THE RETURN CANNOT AMOUNT TO FURNISHING INACCURATE PARTICULARS. 17. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS OF THE HON BLE APEX COURT AND KEEPING IN VIEW THAT THE ASSESSEE'S C ONTENTION THAT IT HAD CLAIMED DEDUCTION U/S.80 RR IN A BONAFIDE MANNER ON THE BASIS OF THE CERTIFICATE ISSUED BY THE BANK AND THE SAID BONAFIDE BELIEF WAS NOT FOUND TO BE FALSE OR UNTRUE AT ANY STAGE WE ARE OF THE VIEW THAT UNDER SUCH CIRCUMSTANCES THE PEN ALTY IS NOT LEVIABLE. FURTHER MAKING OF WRONG CLAIM IS NOT AT PAR WITH CONCEALMENT OR GIVING OF INACCURATE INFORMATION, WHICH MAY CALL FOR LEVY OF PENALTY U/S. 271(1)(C) OF THE ACT. THIS VIEW ALSO FINDS SUPPORT FROM THE RECENT DECISIONS IN CIT VS. SIDHAR THA ENTERPRISES (2010) 322 ITR 80 (P&H) AND CIT VS. SHAHABAD ITA NO. 3692/M/09 A.Y: 03 - 04 11 CO - OP. SUGAR MILLS LTD. (2010) 322 ITR 73(P&H). ACCORDINGLY THE PENALTY IMPOSED BY THE AO AND SUSTAINED BY THE CIT(A) IS DELETED. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFORE ALLOWED. 18. IN THE RESULT ASSESSEE S APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.4.2010. SD/ - SD/ - ( PRAMOD KUMAR ) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 20.4. 20 10 . JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.