CINMAX INDIA LTD, MUMBAI V. ACIT 8(1), MUMBAI

ITA 393/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1680 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 17-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Keywords: Capital asset; Business income; Opportunity of being heard; Capital receipt; Revised return
• Section: 43B; 37; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH , MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI D.KARUNAKAR RAO , A M ITA NO. 393 / MUM / 20 1 2 ( ASSESSMENT YEAR : 200 7 - 20 0 8 ) CIN E MAX INDIA PVT. LTD., ATTRIUM 215, 10 TH FLOOR, NEAR MARRIOT COURTYARD, ANDHERI - KURLA ROAD, ANDHERI (E),MUMBAI - 400 059 . VS. ACIT - 8 ( 1 ) , MUMBAI - 400 020 PAN/GI R NO. : A ACCC 1775 F ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI VIJAY MEHTA /REVENUE BY : SHRI A.C.TEJPAL DATE OF HEARING : 1 5 TH JAN ., 201 3 DATE OF PRONOUNCEMENT : 01 / 03 / 201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH E ASSESSEE HAS PREFERRED THIS APPEAL AGAINST THE ORDER DATED 24 - 10 - 2011, PASSED BY THE CIT(A) - 16, MUMBAI , RELATING TO ASSESSMENT YEAR 2007 - 08 . 2 . THE FIRST ISSU E IN APPEAL OF THE ASSESSEE IS AGAINST NOT ALLOWING THE CLAIM OF LOSS DUE TO FIRE AMOUNTING TO RS. 50,78,835/ - AS BUSINESS LOSS. ALTERNATIVELY, THE ASSESSEE HAS STATED THAT THE SAME SHOULD BE ALLOWED AS LOSS UNDER SECTIONS 45 OR 48 OF THE ACT. 3 . BRIEF FACT S OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDING, THE AO NOTED THAT THE ASSESSEE CLAIMED AN AMOUNT OF ITA NO. 393 /20 1 2 2 50,78,835/ - AS EXTRA ORDINARY ITEM. THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE LOSS OF ASSET CLAIMED SHOULD NOT BE DISALLOWED. IN REPLY, THE ASSESSE E SUBMITTED THAT FIRE TOOK PLACE ON 20.12.2005 AND FURNITURE AND OTHER EQUIPMENT AMOUNTING TO 1,52,98,128/ - PERTAINING TO SCREEN NO. 2 WAS DESTROYED BY FIRE. THE ASSESSEE FURTH ER SUBMITTED THAT THE HE HAS RECEIVED IN THE AGGREGATE A SUM OF RS. 1,02,19,293/ - FROM INSURER. THUS, HE SUFFERED A LOSS OF 50,78,835/ - . THE ASSESSEE FURTHER SUBMITTED THAT THE SAID LOSS BE ALLOWED U/S. 28/37 OF THE IT. ACT AND THE REASON FOR CLAIM OF LOSS IS THAT THE ASSESSEE IS IN THE BUSINESS OF CONSTRUCTING AND RUNNING - CINEMA THEATR E AND THE LOSS INCURRED ON ACCOUNT OF FIRE IS A LOSS ARISING IN THE COURSE OF BUSINESS. RELIANCE WAS PLACED ON VARIOUS CASE LAWS ALSO. IT WAS ALSO SUBMITTED THAT IF THE LOSS IS NOT ALLOWABLE UNDER SECTION 3 7 , THEN IT SHOULD BE ALLOWED UNDER SECTION 45 OR U NDER SECTION 48 OF THE ACT AS A SHORT TERM CAPITAL LOSS . THE PROVISION S OF SECTION 45(IA ) WERE ALSO EXPLAINED. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, THE AO HELD THAT TO ALLOW LOSS, IT IS ESSENTIAL THAT LOSS SHOULD BE A REVE NUE LOSS AND IT IS INCIDENTAL TO BUSINES S . IT WAS SEEN THAT LOSS DUE TO FIRE IN CINEMA THEATRE AND , THEREFORE, THE LOSS, IF ANY, WILL BE A CAPITAL LOSS AND THEREFORE CANNOT BE ALLO WED AS DEDUCTION U/S. 28 R.W.S.37 OF THE ACT. 3.1 REGARDING THE PLEA OF THE ASSESSEE TO ALLOW LOSS UND E R SECTION 45/48 OF THE ACT , THE AO HELD THAT THE CONTENTION OF THE ASSESEE IS NOT ACCEPTABLE IN VIEW OF SPECIFIC PROVISIONS OF CLAUSE (C). TO SECTION 43(6) OF THE ACT WHICH PROVIDES THAT IN THE CASE OF BLOCK OF ASSETS, THE ITA NO. 393 /20 1 2 3 AGGR EGATE OF THE WRIT TEN DOWN VALUE OF THE ASSETS FAL LING WITHIN THE BLOCK OF ASSET SHALL BE ADJUSTED BY REDUCING THE MONEYS PAY ABLE IN RESPECT OF ANY ASSET FAL LING WITHIN THAT BLOCK, WHICH IS SOLD OR DISCARDED OR DEMOLISHED OR DESTROYED DURING THE PREVIOUS YE AR WITH T HE AMOUNT OF SCRAP VALUE. ACCORDINGLY, THE AO HELD THAT AS SUCH THE INSURANCE MONEY RECEIVED BY THE ASSESSEE WAS REQUIRED TO BE ADJUSTED AGAINST THE WRITTEN DOWN VALUE AND THE QUESTION OF ALLOWING ANY LOSS DOES NOT ARISE. ACCORDINGLY, T HE AO DID NOT ALLOW LOSS UNDER SECTION 4 8 OF THE ACT . 4 . SAME CONTENTIONS WERE REITERATED BEFORE THE CIT(A). RELIANCE WAS PLACED ON THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF WOODWORD GOVERNOR INDIA PVT. LTD., 312 ITR 254 . LEARNED CIT(A) AFTER CONSID ERING THE ISSUE IN DETAIL, HELD THAT THE CLAIM OF THE ASSESSEE TO ALLOW BUSINESS LOSS, CANNOT BE ALLOWED AS NEITHER ANY BUSINESS WAS STARTED AND LOSS INCURRED WAS A CAPITAL ASSET. IT WAS HELD BY THE CIT(A) THAT IT CAN BE A LOSS OF CAPITAL ASSET BUT NOT OF THE BUSINESS ASSET. HOWEVER, LEARNED CIT(A) AFTER CONSIDERING THE PROVISION OF SECTION 45(1A) AND PROVISION OF SECTION 48, HELD THAT THESE PROVISIONS ARE NOT APPLICA BLE ON THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND, THEREFORE, LOSS IS NOT ALLOWABL E. IT WAS ALSO FOUND BY THE LEARNED CIT(A) THAT THESE ASSETS WERE NOT SHOWN IN THE BLOCK OF ASSETS, THEREFORE, THE CLAIM OF THE ASSESSEE IS NOT ALLOWABLE. ACCORDINGLY, IT WAS HELD THAT PROVISION S OF SECTION 50 ARE ALSO NOT APPLICABLE ON THE FACTS OF THE ITA NO. 393 /20 1 2 4 P RESENT CASE. ACCORDINGLY, DISALLOWANCE MADE BY THE AO WAS CONFIRMED BY THE CIT(A) . 5 . THE CONTENTIONS RAISED BEFORE THE LOWER AUTHORITIES WERE REITERATED HERE BEFORE THE TRIBUNAL BY THE LEARNED AR OF THE ASSESSEE. ON THE OTHER HAND, LEARNED DR PLACED RELI ANCE ON THE ORDER OF THE CIT(A). 6 . AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE AO TO CONSIDER THIS ASPECT IN THE LIGHT OF THE DECISION OF THE TRIBUNAL IN THE CASE OF ARTIC VS. ACIT, REPORTED IN [1999 ] 68 ITD 462 (MUM) AND IN THE CASE OF FLUROSCENT FIXTURES (P) LTD. VS. ITO, REPORTED IN [2009] 34 SOT 48 (MUM) AND ALSO CONSIDERING THE DECISION OF THE TRIBUNAL IN THE CASE OF OCEANIC INVESTMENT LIMITED, REPORTED IN 57 TTJ 549 . IN THESE CASES, IT HAS BEEN HELD THAT IF THE YEAR UNDER CONSIDERATION WAS NOT OVER AND ANY EXPENDITURE ON ACCOUNT OF CAPITAL ASSET HAS BEEN INCURRED, THEN IT SHOULD BE TREATED AS DEEMED BLOCK OF ASSET. THIS ASPECT WAS NOT EXAMINED EITHER BY THE AO OR BY THE CIT(A) FOR THE REASON THAT AT THE POINT OF TIME THESE DECISIONS WERE NOT AVAILABLE. NOW, THESE DECISIONS HAVE BEEN RELIED UPON BY THE LEARNED COUNSEL OF THE ASSESSEE. THEREFORE, IF THE CONTENTION OF THE ASSESSEE IS LIABLE TO BE ACCEPTED IN VIEW OF THESE DECISIONS, THEN OF COURSE, THE AO WILL PASS A FRESH ORDER AFTER CONSIDERING THESE DECISION AND TAKING INTO CONSIDERATION THE AMOUNT OF LOSS OF THE BLOCK AND THEREAFTER REDUCING BY THE AMOUNT RECEIVED FROM THE INSURER. IN OUR VIEW, EQUITY SHO ULD NOT ITA NO. 393 /20 1 2 5 BE PITTED AGAINST THE TECHNICALITIES. THERE IS NO DISPUTE THAT FIRE WAS THERE IN THE PREMISES OF THE ASSESSEE AND SCREENS WERE COMPLETELY DESTROYED ALONG WITH THE FIXTURES. THERE IS ALSO NO DISPUTE IN RESPECT TO LOSS OF RS. 50 LAKHS OR ODD. THE AO A ND CIT(A) HAVE HELD THAT THIS LOSS IS NOT ALLOWABLE AS BUSINESS LOSS. THE VIEW OF THE AUTHORITIES BELOW MAY BE CORRECT BUT THIS IS A CAPITAL LOSS, WHICH IS TO BE CONSIDERED AFTER TAKING INTO CONSIDERATION THE DECISION OF THE TRIBUNAL AND TAKING INTO CONSID ERATION THE FACT THAT LOSS HAS ALREADY INCURRED TO THE ASSESSEE. ACCORDINGLY, WITHOUT GOING INTO THE DETAIL, FURTHER WE SET ASIDE THE ISSUE TO THE FILE OF THE AO TO PASS A FRESH ORDER AFTER ALLOWING OPPORTUNITY TO THE ASSESSEE AND AFTER TAKING INTO CONSIDE RATION VARIOUS DECISIONS OF THE MUMBAI BENCHES MENTIONED ABOVE. WE ORDER ACCORDINGLY. 7 . SECOND ISSUE RELATES TO NOT ALLOWING PROVISIONS FOR LEAVE ENCASHMENT OF RS. 16, 30,078/ - . 8 . BRIEF FACTS IN THIS REGARD ARE THAT THE DURING THE ASSESSMENT PROCEEDIN GS, THE AO NOTICED THAT THE ASSESSEE HAS MADE A PROVISION OF RS. 16,30,078/ - . THE AO ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE PROVISION MADE SHOULD NOT BE ADDED TO THE TOTAL INCOME UNDER SECTION 43B OF THE ACT. IN REPLY, THE ASSESSEE SUBMITTED THAT THE A SSESSEE HAD MADE THE PROVISION FOR LEAVE ENCASHMENT AMOUNTING TO 16,30,078/ - ON THE BASIS OF ACTUARIES VALUATION DATED 27.04.2007. RELIANCE WAS PLACED ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES AND OTHERS V/S. UNION OF I NDIA AND OTHER 292 1TR 470 . ITA NO. 393 /20 1 2 6 HOWEVER, THE AO WAS NOT SATISFIED AND ACCORDINGLY, HE DISALLOWED THE CLAIM OF THE ASSESSEE BY ADDING THE SAME IN THE TOTAL INCOME. 9 . LEARNED CIT(A) ALSO CONFIRMED THE ACTION OF THE AO. 10 . LEARNED COUNSEL OF THE ASSESSEE S TATED THAT THIS ISSUE IS LIABLE TO BE SET ASIDE TO THE FILE OF THE AO IN THE LIG HT OF THE DECISION IN THE CASE OF ESSAR EXPLORATION & PRODUCTION INDIA LTD. VS. ACIT, PASSED IN ITA NO. 6189/MUM/2011 FOR THE ASSESSMENT YEAR 2008 - 09 VIDE ORDER DATED 8 - 8 - 2012 . 1 1 . ON THE OTHER HAND, LEARNED DR PLACED RELIANCE ON THE ORDER OF LEARNED CIT(A) . 1 2 . AFTER CONSIDERING THE ORDER OF THE TRIBUNAL IN THE CASE OF ESSAR EXPLORATION & PRODUCTION INDIA LTD. (SUPRA), WE FIND THAT THIS ISSUE NEED READJUDICATION AT THE END OF THE AO. AFTER CONSIDERING THE DECISION IN THE CASE OF UNIVERSAL MEDICARE (P) LTD.(2011) 237 CTR 147 (BOM) AND THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS. BHARAT EARTH MOVERS, 245 ITR 428 (SC) AND THE DECISION OF THE HON BLE CALCUTTA H IGH COURT IN THE CASE OF EXIDE INDUSTRIES (SUPRA) , THE TRIBUNAL FOUND THAT THE PROVISION OF SECTION 43B (F) HAVE BEEN STRUCK DOWN AS THEY ARE BEING ARBITRARY, UNCONSCIONABLE. THE FINDINGS OF THE TRIBUNAL HAVE BEEN RECORDED IN PARA 7 OF THE ORDER, WHICH IS A S UNDER : - 7. WE OBSERVE THAT MUMBAI TRIBUNAL BY ITS ORDER DATED 30.3.2009 IN THE CASE OF UNIVERSAL MEDICARE PVT LTD. (SUPRA) ALLOWED THE CLAIM OF PROVISION FOR LEAVE ENCASHMENT ON THE BASIS OF DECISION OF HONBLE APEX COURT IN THE CASE OF BHARAT EARTH MO VERS (SUPRA) AS ITA NO. 393 /20 1 2 7 THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES (SUPRA) STRUCK DOWN THE PROVISION OF SECTION 43B(F) BEING ARBITRARY, UNCONSCIONABLE. FURTHER, THE DEPARTMENT FILED SLP BEFORE HONBLE APEX COURT AGAINST THE DECISION OF HONBL E CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA) BY ITS ORDER DATED 8.9.2008 IN SLP NO.12060/2008 HAS STAYED THE OPERATION OF JUDGMENT OF HONBLE CALCUTTA HIGH COURT. FURTHER, IT IS ALSO A FACT THAT HONBLE BOMBAY HIGH COURT HAS ADMITTED THE ISSUE UNDER CONSIDERATION IN THE APPEAL FILED BY DEPARTMENT IN THE CASE OF UNIVERSAL MEDICARE PVT LTD (SUPRA). AT THE TIME OF HEARING, LD A.R. SUBMITTED THAT THE SAID APPEAL IS YET TO BE DISPOSED OF. WE ALSO OBSERVE THAT ITAT KOLKATA BENCH BY ITS ORD ER DATED 30.1.2012 CONSIDERED THE SAID ISSUE AND BY FOLLOWING EARLIER DECISION ON IDENTICAL ISSUE IN THE CASE ERNST & YOUNG PVT LTD. (SUPRA) HAS RESTORED THE MATTER TO THE FILE OF AO WITH A DIRECTION TO ADJUDICATE THE SAME AS PER DECISION OF HONBLE APEX C OURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA). IN VIEW OF ABOVE AND RESPECTFULLY FOLLOWING THE EARLIER DECISIONS (SUPRA), WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER BACK TO THE FILE OF AO FOR ADJUDICATION AFRESH AS PER THE DECI SION OF HONBLE APEX COURT IN THE CASE OF EXIDE INDUSTRIES LTD (SUPRA). 1 3 . SINCE THE FACTS ARE SIMILAR IN THE CASE OF IN HAND, THEREFORE, AS PER THE ORDER OF THE TRIBUNAL (SUPRA) , WE SET ASIDE THE ISSUE TO THE FILE OF THE AO TO PASS A FRESH ORDER AS PE R OBSERVATION OF THE TRIBUNAL IN THE CASE OF ESSAR EXPLORATION & PRODUCTION INDIA LTD. (SUPRA) AND AFTER AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE. 1 4 . REMAINING ISSUE IS AGAINST NOT ENTERTAINING THE ISSUE IN RESPECT OF SUBSIDY RECEIVED OF RS. 6,29, 98,601/ - IN FORM OF ENTERTAINMENT TAX COLLECTED DURING THE YEAR UNDER CONSIDERATION. 1 5 . NO CLAIM IN THE RETURN OF INCOME WAS MADE IN RESPECT TO SUBSIDY RECEIVED ON ACCOUNT OF ENTERTAINMENT TAX COLLELCTED OF RS. 6,29,98,601/ - . IT WAS REQUESTED TO THE AO TH AT IN THE LIGHT OF DECISION OF PUNE BENCH IN THE CA SE OF M/S CHAPHALKAR BROTHERS VS. ITO, PASSED IN ITA NO. 1342&1343/PN/2006 , VIDE ORDER DATED 30 - 6 - 2009 , THE CLAIM OF THE ITA NO. 393 /20 1 2 8 ASSESSEE IS TO BE ADMITTED, WHEREIN IT IS HELD THAT THE AMOUNT OF ENTERTAINMENT IS A CAPITAL RECEIPT, WHICH IS NOT LIABLE TO TAX. THE AO NOTED THAT THE ASSESSEE HAS BEEN CONSISTENTLY SHOWING ENTERTAINMENT TAX COLLECTED AS REVENUE RECEIPTS. DURING THE YEAR ALSO THE ASSESSEE HAS SHOWN THE ENTERTAINMENT TAX COLLECTED AS BUSINESS RECEIPTS. THE AO FURTHER HELD THAT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE TO SHOW THE AMOUNT OF ENTERTAINMENT TAX COLLECTED ARE IN FORM OF CAPITAL SUBSIDY AND, THEREFORE, NOT LIABLE TO TAX. ACCORDINGLY, THE AO HELD THAT THE ASSESSEE HAS NOT CLAIMED THE ENTERTAINMEN T TAX AS CAPITAL SUBSIDY AND THE SAME HAS BEEN CLAIMED DURING THE COURSE OF ASSESSMENT PROCEEDING. THEREFORE, PLACING RELIANCE ON THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD V/S. CIT (2006) 289 ITR 323 (SC) , THE CLAIM OF TH E ASSESSEE WAS REJECTED. 16 . LEARNED CIT(A) HAS ALSO CONFIRMED THE ACTION OF THE AO. 17 . LEARNED COUNSEL OF THE ASSESSEE REITERATED HIS CONTENTIONS RAISED BEFORE THE LOWER AUTHORITIES. FURTHER RELIANCE WAS PLACED ON THE DECISION OF THE HON BLE BOMBAY HIG H COURT IN THE CASE OF CIT VS. M/S CHAPHALKAR BROTHERS, DECIDED IN ITA NO. 1147/2010 , VIDE ORDER DATED 8 - 6 - 2011, COPY OF THE SAME IS PLACED ON RECORD. RELIANCE WAS ALSO PLACED ON THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S CHAPHALKAR BROTH ERS (SUPRA ) , WHERE A SIMILAR CLAIM HAS BEEN HELD AS CAPITAL IN NATURE. LEARNED COUNSEL OF THE ASSESSEE HAS STATED THAT NOW THE HON BLE HIGH COURT, WHO HAS CONFIRMED THE DECISION OF THE PUNE BENCH HOLDING THAT SUCH SUBSIDIARY IS OF CAPITAL IN NATURE, ITA NO. 393 /20 1 2 9 THEREF ORE, THE SAME SHOULD BE ALLOWED AS THE AMOUNT OF SUBSIDIARY AS CAPITAL IN NATURE. IT WAS FAIRLY SUBMITTED BY THE LEARNED AR THAT SINCE THE CLAIM WAS NOT MADE BY FILING A REVISED RETURN BEFORE THE AO, THEREFORE, THE SAME CAN BE SENT BACK TO THE FILE OF THE AO TO CONSIDER THE SAME AFRESH AS THE CLAIM HAS BEEN MADE IN THE ASSESSMENT PROCEEDING AS WELL AS BEFORE THE CIT(A) . REGARDING THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD (SUPRA) , IT WAS SUBMITTED THAT THE SAME IS IN FAVOUR OF THE ASSESSEE AS IN LAST PARA OF THIS DECISION ITSELF, THE HON BLE SUPREME COURT HAS HELD THAT IF THE CLAIM HAS BEEN MADE BEFORE THE APPELLATE AUTHORITY, THEN THE SAME IS LIABLE TO BE ENTERTAINED. 18 . ON THE OTHER HAND, LEARNED DR PLACED RELIANCE ON TH E ORDER OF THE AO AND CIT(A) . 19 . AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, WE FOUND THAT THIS ISSUE SHOULD BE SENT BACK TO THE FILE OF THE AO TO EXAMINE THE SAME AFRESH IN THE LIGHT OF THE DECISION OF THE HONBLE JURISDICTIONA L HIGH COURT IN THE CASE OF CIT VS. M/S CHAPHALKAR BROTHERS (SUPRA) . IN THIS CASE, IT HAS BEEN HELD THAT SUBSIDIARY GRANTED BY THE STATE GOVERNMENT FOR CONSTRUCTING MULTIPLEX IS IN NATURE OF REVENUE RECEIPT OR CAPITAL RECEIPT AND ULTIMATELY IT WAS HELD THA T THE SAME IS CAPITAL IN NATURE. SINCE THE ASSESSEE HAS NOT MADE CLAIM IN RESPECT OF SUBSIDY THAT THE SAME IS CAPITAL IN NATURE, NOT LIABLE TO TAX BY FILING THE REVISED RETURN, BUT THIS CLAIM WAS MADE DURING ITA NO. 393 /20 1 2 10 THE ASSESSMENT PROCEEDING. THEREFORE, WE ARE OF THE VIEW THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE AO TO CONSIDER IT ACCORDINGLY AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALSO TAKING CONSIDERATION THE DECISION OF THE HON BLE HIGH COURT AS MENTIONED ABOVE. 20 . RESU LTANTLY , APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 1ST DAY OF MA R . 2012. 201 3 SD/ - ( ) ( D.KARUNAKAR RAO ) SD/ - ( ) ( R.K.GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 01 / 03 / 20 1 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI . 4. / CIT 5. / DR, ITAT, MUMBAI . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( /ASSTT . REGISTRAR) / ITAT, MUMBAI