GARWARE WALL ROPES LTD, MUMBAI V. ADDL CIT 5(1), MUMBAI

ITA 4072/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2593 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 31-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 04-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S SENTHIL KUMARAN ITA NO M A Y
• Assessee Lawyers: DALPAT H SHAH
• Keywords: Depreciation; Opportunity of being heard; Earning of tax free income; Question of law; Competent authority; Revised return; Reason to believe; Revenue expenditure; Capital expenditure
• Section: 142(1); 14A; 10B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUM BAI . . , , ! '#, $ , % BEFORE SHRI B.R.BASKARAN, AM AND SHRI AMARJIT SINGH , JM / I.T.A. NO.4072/MUM/2014 ( $ & '& / ASSESSMENT YEAR: 2010-11) GARWARE WALL ROPES LIMITED CHOWPATTY CHAMBERS, SANDHURST BRIDGE, MUMBAI - 400007 / VS. ADDL. CIT 5(1) AAYAKAR BHAVAN MUMBAI - 400020 / I.T.A. NO.4018/MUM/2014 ( $ & '& / ASSESSMENT YEAR: 2010-11) DEPUTY COMMISSIONER OF INCOME TAX 5(1) ROOM NO.568, 5 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI - 400020 / VS. GARWARE WALL ROPES LIMITED CHOWPATTY CHAMBERS, SANDHURST BRIDGE, MUMBAI - 400007 ./ ./ PAN/GIR NO. : AAACG1377P ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 31.03.2016 !' /DATE OF PRONOUNCEMENT: 13.07.2016 #$ / O R D E R PER AMARJIT SINGH, JM: ASSESSEE BY: SHRI DALPAT H. SHAH DEPARTMENT BY: SHRI S. SENTHIL KUMARAN ITA NO.4072&4018/M/2014 A.Y. 2010-11 2 THE ASSESSEE AS WELL AS REVENUE HAVE FILED THE ABOV E MENTIONED APPEALS AGAINST THE ORDER DATED 19.03.2014 PASSED B Y THE COMMISSIONER OF INCOME TAX (APPEALS) 9, MUMBAI [HER EINAFTER REFERRED TO AS THE LEARNED CIT(A)] RELEVANT TO T HE A.Y.2010-11 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- GROUND NO.1 : REDUCTION IN QUANTUM OF MAT CREDIT U/ SEC 115JAA BY RS.67,46,958/- 1.1. THE LD. C.I.T. (APPEALS)-9, MUMBAI, ERRED IN COMPUTING MAT CREDIT AVAILABLE FOR SET-OFF U/SEC 115JAA FOR A.Y.2008-09 AND A.Y.2009-10 AT RS.2,82,56,883/- AS AGAINST THE SUM OF RS.3,50,03,841/- CLAIMED BY THE APPELLANT, RESULTING INTO A REDUCTION BY RS.67,46,9 58/- ON ACCOUNT OF EXCLUSION OF EDUCATION CESS AND SURCHARGE PAID ON THE GROUND THAT THE TAX U/S.115JAA IS EXCLUSIVE OF THE SAME. 1.2. THE SAID CIT(APPEAL) OUGHT TO HAVE CONSIDERED THE FACT THAT EDUCATION CESS AND SURCHARGE ARE PART OF TAX ONLY AS PROVIDED IN SEC 2(43) R.W.SEC 4 OF THE INCOME TAX ACT AND AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF CIT V/S. K.SRINIVASAN 83 ITR 346. 1.3. WITHOUT PREJUDICE TO THE ABOVE, THE SAID C.I.T .(APPEAL) ERRED IN NOT GIVING DIRECTION TO THE A.O. TO ALLOW THE BROUGHT FORWARD MAT CREDIT AFTER GIVING EFFECT TO T HE APPELLATE ORDERS OF EARLIER YEARS AND NOT AS PER OR DER U/S.143(3). GROUND NO.2 : DISALLOWANCE OF COMMISSION OF RS.50,9 1,141/- U/SEC.9 R.W.S. 195 AND SEC 40(A)(I): 2.1. THE SAID C.I.T. (APPEALS), ERRED IN CONFIRMI NG THE DISALLOWANCE OF COMMISSIONER PAID TO FOREIGN AGENTS AMOUNTING TO RS.50,90,141/ U/SEC. 40(A)(I) R.W.SEC. 9 AND SEC.195 ON THE GROUND THAT NO AGREEMENTS BETWEEN TH E PARTIES WERE SUBMITTED TO ESTABLISH THAT THE PAYMEN TS WERE TOWARDS COMMISSION AND NOT FOR ANY PROFESSIONAL SERVICES. THE C.I.T.(APPEAL) ERRED IN NOT CONSIDE RING THE AGREEMENTS SUBMITTED BEFORE HIM TO ESTABLISH THAT T HE PAYMENT WAS FOR COMMISSION FOR SERVICES RENDERED OU TSIDE ITA NO.4072&4018/M/2014 A.Y. 2010-11 3 INDIA AND THEREFORE ERRED IN NOT CONSIDERING THE FA CT THAT THE SAME BEING TOWARDS COMMISSION CHARGES FOR SERVI CES RENDERED OUTSIDE INDI AND WAS NOT LIABLE TO T.D.S. PROVISIONS OF SEC.9 OR SEC. 195 OF THE INCOME TAX A CT. 2.2 THE LD. CIT(APPEALS) ALSO ERRED IN NOT CONSIDER ING THE FACT THAT THE ABOVE SERVICES WERE FOR PROCUREMENT OF SAL ES ORDER AND COLLECTION OF DUES OUTSIDE INDIA AND NOT FOR AN Y TECHNICAL SERVICES AND THEREFORE DISALLOWANCE OF TH E SAID COMMISSION EXPENDITURE U/SEC. 40(A)(I) WAS NOT JUST IFIED. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 1. WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THE A SSESSING OFFICER TO ALLOW DEPRECIATION OF RS.10,86,873/- AFT ER WORKING OUT THE WDV OF ASSETS FOR EARLIER YEARS AS DECIDED BY THE APPELLATE AUTHORITIES WITHOUT APPRECIATING T HE FACTS THAT BEFORE ANY ALLOWANCE OF DEDUCTION UNDER CHAPTE R VIA OF THE I.T.ACT, 1961, THE DEPRECIATION HAS TO BE AL LOWED FROM THE GROSS TOTAL INCOME? 2. WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.10,19,830/- MADE U/S.14A R.W.RUL E 8D, AS AGAINST DISALLOWANCE OF RS.2,39,855/- MADE BY TH E ASSESSEE IGNORING THE PROVISION U/S.14A, THAT NO DISALLOWANCE COULD BE MADE FOR INVESTMENT FROM WHIC H NO EXEMPT INCOME IS RECEIVED. 3. WHETHER ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.1,82,02,000/- MADE BY THE A.O. U /S.35 IN RESPECT OF CAPITAL EXPENDITURE ON RESEARCH AND DEVELOPMENT WITHOUT FILING REVISED RETURN OF INCOME . ITA 4072/M/2014(ASSESSEES APPEAL):- 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED HIS RETURN OF INCOME ON 13.10.2012 DECLARING TOTAL INCOME TO T HE TUNE OF RS.17,16,87,458/- AND THE CURRENT YEARS LONG TERM CAPITAL GAIN LOSS ITA NO.4072&4018/M/2014 A.Y. 2010-11 4 OF RS.3,435/-. THE RETURN WAS PROCESSED U/S.143(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE CASE WAS SELEC TED FOR SCRUTINY UNDER CASS. NOTICE U/S.143(2) OF THE ACT DATED 27. 08.2011 WAS ISSUED AND SERVED UPON THE ASSESSEE. DUE TO CHANGE OF INCUMBENCY THE ASSESSING OFFICER ISSUED THE NOTICES U/S.143(2) & 142(1) AND SERVED UPON THE ASSESSEE. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND SALE OF THE FOLLOWING PRODUCTS:- SYNTHETIC YARN MADE OUT OF HIGH-DENSITY POLYETHYLEN E, POLYPROPYLENE, NYLON AND POLYESTER. SYNTHETIC TWINES MADE OUT OF AFORESAID YARNS. SYNTHETIC ROPES MADE OUT OF AFORESAID TWINES. FISHNETS MADE OUT OF AFORESAID TWINES. MACHINERIES. GEO SYNTHETIC. THE MANUFACTURING FACILITIES OF THE COMPANY WERE CA RRIED OUT FROM THE FOLLOWING DIVISIONS:- SR.NO. NAME OF THE DIVISION 1 DTA UNIT (PUNE) 2 100% EOU PUNE (DEDUCTION U/S.10B EXPIRED) 3 TERRY TOWEL UNIT, PUNE 4 AJMAN BRANCH 5 PPMF (FIBER), PUNE 6 MBD PUNE 7 100% EOU AT PUNE (4 TH YEAR 10B UNIT) 8 GEO SYNTHETIC (PUNE) ITA NO.4072&4018/M/2014 A.Y. 2010-11 5 9 AVIATION 10 FISH NET DIVISION, WAI (OLD DEDUCTION U/S.80-IB EXPIRED) 11 DTA UNIT (WAI) 12 100% EOU AT WAI (8 TH YEAR 10B UNIT) 13 SILVASSA DIVISION (5 TH YEAR 80IB) 14 USA BRANCH 15 CITADINI THE ASSESSMENT WAS COMPLETED. ASSESSEES TOTAL INC OME WAS ASSESSED TO THE TUNE OF RS.17,87,21,260/- U/S.143(3) OF THE ACT. THE ASSESSING OFFICER WHILE COMPUTING THE MAT CREDIT AVAILABLE IN SET OFF U/S.115JAA FOR A.Y.2008-09 AND 2009-10 AT RS.2,82,5 6,883/- AS AGAINST THE SUM OF RS.3,50,03,841/- CLAIMED BY THE APPELLANT, RESULTING INTO A REDUCTION BY RS.67,46,958/- ON ACCOUNT OF EX CLUSION OF EDUCATION CESS AND SURCHARGE AND ASSESSED THE SET O FF AND DISALLOWED THE COMMISSION OF RS.50,90,141/- U/S.9 R.W.S.195 AN D SEC.40(A)(I) OF THE ACT. THE SAID ADDITION WAS CONFIRMED BY THE CI T(A), THEREFORE THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US . ISSUE NO.1:- 5. UNDER THIS ISSUE THE ASSESSEE HAS RAISED THE QUE STION TO THE FACT THAT THE CIT(A) HAS ERRED IN COMPUTING MAT CREDIT A VAILABLE FOR SET- OFF U/S.115JAA OF THE ACT FOR A.Y.2008-09 AND A.Y.2 009-10 TO THE TUNE OF RS.2,82,56,883/- AS AGAINST THE SUM OF RS.3 ,50,03,841/- CLAIMED BY THE APPELLANT, RESULTING INTO A REDUCTIO N BY RS.67,46,958/- ON ACCOUNT OF EXCLUSION OF EDUCATIONAL CESS AND SUR CHARGE. AT THE ITA NO.4072&4018/M/2014 A.Y. 2010-11 6 VERY OUTSET THE LEARNED COUNSEL FOR THE ASSESSEE HA S ARGUED THAT THE SURCHARGE AND THE EDUCATIONAL CESS ARE ALSO THE PAR T OF INCOME TAX WHICH ARE ALSO LIABLE FOR GIVING CREDIT U/S.115JAA OF THE ACT. IN VIEW OF THE LAW SETTLED IN CIT VS. K. SRINIVASAN 83 ITR 346 (SC) AND CIT VS. VACMENT INDIA 369 ITR 304 (ALL.) AND WYETH LTD. VS. ACIT (LTU) (ITA NO.82/MUM/2011) G BENCH, MUMBAI AND J. M.HUBER INDIA PVT. LTD. VS. CIT (ITA NO.7287/MUM/2012) J BENCH, MUMBAI. ON THE OTHER HAND THE LEARNED REPRESENTATI VE OF THE ASSESSEE HAS ARGUED THAT ONLY INCOME TAX CREDIT IS REQUIRED TO BE GIVEN AS TAX CREDIT U/S.115JAA OF THE ACT THEREFORE THE CIT(A) H AS RIGHTLY PASSED THE ORDER WHICH IS NOT REQUIRED TO BE INTERFERE WIT H AT THIS APPELLATE STAGE. KEEPING IN VIEW OF THE ARGUMENT ADVANCED B Y THE LEARNED REPRESENTATIVE OF THE PARTIES AND PERUSING THE RECO RD, WE FIND THAT THERE IS A LIMITED ISSUE BEFORE US WHICH NEEDS TO BE ADJU DICATION ON THE POINT OF THAT THE INCOME TAX INCLUDES SURCHARGE AND EDUCATIONAL CESS OR NOT. COPY OF ITR 6 HAS BEEN PLACED ON RECORD IN WHICH IT IS MENTIONED THAT THE MAT CREDIT IS REQUIRED TO BE GIV EN ON SURCHARGE AND EDUCATIONAL CESS AND UPON THE INCOME TAX PAYABL E BY THE ASSESSEE. THE REPRESENTATIVE OF THE ASSESSEE HAS PLACED RELIA NCE ON LAW SETTLED IN CIT VS. VACMENT INDIA 369 ITR 304 (ALL.) IN WHICH I T IS HELD THAT THE MAT CREDIT SHOULD BE GIVEN FROM THE GROSS TAX PAYAB LE AND ON THE SURCHARGE AND EDUCATIONAL CESS TO BE COMPUTED ONLY ON THE AMOUNT OF TAX PAYABLE TO THE MAT CREDIT. HE HAS ALSO RENDERE D SECTION 115JAA AND SUBMITTED THAT THE MAT CREDIT HAS ALSO IN ACCOR DANCE WITH ITA NO.4072&4018/M/2014 A.Y. 2010-11 7 PROVISION OF THIS SECTION. ALTERNATIVELY, THE AMOU NT OF MAT CREDIT IS ALLOWABLE AGAINST THE TAX LIABILITY INCLUSIVE OF SU RCHARGE AND CESS AND NOT THE TAX PAYABLE BEFORE THE SURCHARGE AND CESS. THE RELEVANT PORTION OF LAW MENTIONED ABOVE IN CIT VS. VACMENT I NDIA 369 ITR 304 (ALL.) IS HEREBY REPRODUCED BELOW FOR READY REF ERENCE: 5. THE ONLY QUESTION WHICH IS RAISED PERTAINS TO T HE COMPUTATION OF TAX IN ACCORDANCE WITH THE MODALITIE S WHICH ARE PRESCRIBED IN THE RELEVANT FROM, ITR-6. IN SO FAR AS IS MATERIAL, THE RELEVANT ENTRIES IN THE FOR M (PART B- TTI) ARE AS FOLLOWS: 3. GROSS TAX PAYABLE (ENTER HIGHER OF 2C AND 1) 4. CREDIT UNDER SECTION 115JAA OF TAX PAID IN EAR LIER YEA RS (IF 2C IS MORE THAN 1)(7 OF SCHEDULE MATC) 5. TAX PAYABLE AFTER CREDIT UNDER SECTION 115JAA[3-4] 6. SUR CHARGE ON 5 7. EDU CATION CESS, INCLUDING SECONDARY AND HIGHER ED UCATIONAL CESS 8. GROS S TAX LIABILITY (5+6+7) 6. THE AFORESAID ENTRIES LEAVE NO MANNER OF AM BIGUITY IN REGARD TO THE METHOD OF COMPUTATION OF TAX LIABILIT Y. ENTRY 3 REQUIRES COMPUTATION OF THE GROSS TAX PAYAB LE. UNDER ENTRY 4, CREDIT IS REQUIRED TO BE GIVEN UNDER SECTION 115JAA OF THE ACT OF THE TAX PAID IN EARLIER YEARS. ENTRY 5 REQUIRES A COMPUTATION OF THE TAX PAYABLE AFTER C REDIT UNDER SECTION 115JAA OF THE ACT. THE MATTER IS PLA CED BEYOND DOUBT BY THE PARENTHESIS, WHICH INDICATES TH AT TAX ITA NO.4072&4018/M/2014 A.Y. 2010-11 8 PAYABLE UNDER ENTRY 5 IS TO BE ARRIVED AT BY DEDUCT ING THE CREDIT UNDER SECTION 115JAA OF THE ACT (UNDER ENTR Y 3) FROM THE GROSS TAX PAYABLE (UNDER ENTRY 4). THE SURCHARGE IS COMPUTED ON AMOUNT REFLECTED IN ENTRY 5. 7. THE TRIBUNAL HAS NOTED FROM THE NEXT ASSESSMENT YEAR, THE ASSESSMENT YEAR 2012-13, THE POSITIORI WAS MATE RIALLY ALTERED BUT, IN THE PRESENT CASE, SINCE THE DISPUTE RELATED TO THE ASSESSMENT YEAR 2011-12, THE METHOD OF COMPUTATION, AS DIRECTED BY THE COMMISSIONER {APPEA LS} WAS PLAINLY IN ACCORDANCE WITH THE METHODOLOGY AS PROVIDED IN ITR-6. THE TRIBUNAL IN CONFIRMING THE ORDER OF THE COMMISSIONER (APPEALS) HAS, HENCE, NOT COMMITTED ANY ERROR. THE APPEAL WILL NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW AND IS, ACCORDINGLY, DISMISSED. 7. ACCORDINGLY, IT IS QUITE CLEAR THAT THE INCOME T AX INCLUDES SURCHARGE AND EDUCATIONAL CESS FOR GIVING THE CREDI T U/S.115JAA OF THE ACT. NO LAW CONTRARY TO THE ABOVE SAID FINDING HA S BEEN PRODUCED BEFORE US. ACCORDINGLY, WE SET ASIDE THE ORDER PAS SED BY THE CIT(A) ON THIS ISSUE AND DECIDE THIS ISSUE IN FAVOUR OF TH E ASSESSEE AND AGAINST THE REVENUE AND DIRECT THE ASSESSING OFFICER TO ALL OW THE MAT CREDIT AGAINST THE TAX LIABILITY OF THE ASSESSEE INCLUDING OF SURCHARGE AND ITA NO.4072&4018/M/2014 A.Y. 2010-11 9 EDUCATIONAL CESS. ACCORDINGLY, THIS ISSUE IS DECID ED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NO.2:- 8. UNDER THE ISSUE NO.2 THE ASSESSEE HAS CHALLENGED THE DISALLOWANCE OF COMMISSION OF RS.50,90,141/- U/S.9 R.W.S.195 AND SECTION 40(A)(I) OF THE ACT. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE MADE THE PAYMENT TOWARDS THE PROF ESSIONAL SERVICES CHARGES TO NON-RESIDENT WHICH IS IN RESPECT OF THE SERVICES USED IN RESPECT BUSINESS IN INDIA AND EARN INCOME IN INDIA. THE ASSESSING OFFICER CONSIDERED AS TECHNICAL FEES PAID TO THE NO N-RESIDENT FOR THE INCOME ACCRUED OR EARNED IN INDIA U/S.9R.W.S.195 AT TRACTING TDS PROVISION U/S.195 OF THE ACT. SINCE NO TDS WAS DED UCTED AND DEPOSITED, THEREFORE THE PROVISION U/S.40(A)(I) OF THE ACT WAS ATTRACTED, THEREFORE, THE AMOUNT TO THE TUNE OF RS. 50,90,141/- CLAIMED AS EXPENSES WAS NOT ASSESSED AS REVENUE EXPENDITURE AND ADDED TO THE INCOME OF THE ASSESSEE. THE SAID FINDING WAS CONFI RMED BY THE CIT(A) IN THE ORDER IN QUESTION. 9. THE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS A RGUED THAT THE ASSESSING OFFICER DID NOT VERIFY THE EXPENSES TOWAR DS PROFESSIONAL SERVICES AND COMMISSION PAID FOR EXPORT, THEREFORE, IN THE SAID CIRCUMSTANCES THE PROVISION U/S.9 R.W.S. 195 AND SE CTION 40(A)(I) OF THE ACT IS NOT APPLICABLE TO THE FACTS OF THE PRESENT C ASE IN THE INTEREST OF ITA NO.4072&4018/M/2014 A.Y. 2010-11 10 JUSTICE. IN SUPPORT OF THESE CONTENTIONS THE LEARN ED REPRESENTATIVE OF THE ASSESSEE HAS PLACED RELIANCE UPON THE LAW SETTL ED IN CEAT INTERNATIONAL S.A. VS. CIT 237 ITR 859 (BOM) AND CI T VS. SARA INTERNATIONAL LTD. 217 CTR 491 AND CLSA LTD. VS. IT O (INTERNATIONAL TAXATION) 56 SOT 254, MUMBAI. ON PE RUSAL OF THE ORDER PASSED BY THE ASSESSING OFFICER, IT CAME INTO NOTICE THAT THE ASSESSEE HAS PAID A SUM OF RS.50,90,141/- TO VARIO US PARTIES IN FOREIGN COUNTRIES UNDER THE HEAD PROFESSIONAL SERVI CES IN ADDITION TO COMMISSION PAID FOR EXPORT. THE PROVISION RELATING ABOUT THE PAYMENT ON PROFESSIONAL FEES IS DEALT BY DIFFERENT SECTION I.E. UNDER THE PROVISION OF SECTION 9 R.W.S. AND 195 OF THE AC T BUT SO FAR AS THE COMMISSION PAID FOR EXPORT IS CONCERNED THE SAME IS REQUIRED TO BE DEALT WITH BY THE PROVISION OF THE EXPLANATION 2 TO CLAUSE (VII) OF SECTION 9 OF THE ACT. IN THIS REGARD WE ALSO SUPPO RT LAW SETTLED IN CEAT INTERNATIONAL S.A. VS. CIT 237 ITR 859 (BOM) A ND CIT VS. SARA INTERNATIONAL LTD. 217 CTR 491 AND CLSA LTD. V S. ITO (INTERNATIONAL TAXATION) 56 SOT 254, MUMBAI. SINCE THE EXPENDITURE HAS NOT BEEN DIFFERENTIATED IN PROFESSIONAL SERVICE S AND COMMISSION PAID FOR EXPORTS, THEREFORE, WE ARE OF THE VIEW THA T THE MATTER IS REQUIRED TO BE EXAMINED AFRESH AT THE END OF ASSESS ING OFFICER TO DECIDE THE EXPENDITURE INCURRED FOR PROFESSIONAL SE RVICES AND COMMISSION PAID FOR EXPORTS IN THE LIGHT OF THE JUD GMENT MENTIONED ABOVE BY GIVING AN OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE ITA NO.4072&4018/M/2014 A.Y. 2010-11 11 ACCORDINGLY THIS ISSUE IS DECIDE IN FAVOUR OF THE A SSESSEE AGAINST THE REVENUE. ITA 4018/M/2014(REVENUES APPEAL):- ISSUE NO.1:- 10. UNDER ISSUE NO.1 REVENUE HAS CHALLENGED THE ALL OWANCE ON DEPRECIATION OF RS.10,86,873/-. IT IS TO BE SEEN U NDER WHAT CIRCUMSTANCES THE CIT(A) HAS ALLOWED THE SAID DEPRE CIATION, THEREFORE, IN THE SAID CIRCUMSTANCES WE ARE INCLINED TO ADVERT THE FINDING ON RECORD TO GO FURTHER:- 5.2. GROUND OF APPEAL NO.1:- IT IS NOTED THAT AN IDENTICAL ISSUE WAS DECIDED BY MY PREDECESSOR IN THE CASE OF THE APPELLANT FOR A.Y.20 09-10. THE SAID GROUND OF APPEAL NO.1 HAS BEEN DECIDED VID E PARA 5.2. PAGES 6 TO 7 OF THE RELEVANT APPELLATE OR DER, WHICH ARE REPRODUCED AS UNDER FOR THE SAKE OF READY REFERENCE. 5.2 GROUND OF APPEAL NO.1: THIS ISSUE IS COVERED BY THE DECISION OF LD. PREDECESSOR IN APPELLANTS OWN CASE IN PRECEDING ASSESSMENT YEAR 2008-09. HE HAS DECIDED THIS ITA NO.4072&4018/M/2014 A.Y. 2010-11 12 ISSUE IN PARA 2.1 OF THE APPELLATE ORDER DATED 16.09.2011 WHICH MAY BE EXTRACTED AS UNDER:- 2.1. THE ASSESSING OFFICER HAS DISCUSSED THIS ISSUE AT PAGE 3 AND 4 OF THE ASSESSMENT ORDER. THIS ISSUE WAS ALSO INVOLVED IN ASSESSMENT YEAR 2007-08 WHEREIN MY PREDECESSOR HAS DECIDED THIS ISSUE IN FAVOUR OF THE APPELLANT AS UNDER:- THE APPELLANT IS CLAIMING THAT IN ASSESSMENT YEAR 2001-02 ITAT HAS DECIDED THE ISSUE IN FAVOUR OF THE APPELLANT AND HELD THAT DEPRECIATION CANNOT BE FORCED WHERE AN ASSESSEE CHOSEN NOT TO CLAIM DEPRECIATION WHILE COMPUTING ITS TAXABLE INCOME. IN VIEW OF THESE FACTS, THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEPRECIATION AS PER OPENING WDV OF FIXED ASSETS FOR THIS YEAR DETERMINED AFTER TAKING INTO CONSIDERATION APPEAL ORDERS OF HIGHER APPELLATE. THESE GROUNDS ARE PARTLY ALLOWED. SINCE THE DECISION OF LD. CIT(A) AND HONBLE ITAT ARE IN FAVOUR OF THE APPELLANT, ITA NO.4072&4018/M/2014 A.Y. 2010-11 13 THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEPRECIATION AS PER WDV OF FIXED ASSETS OF THIS YEAR DETERMINED AFTER TAKING INTO CONSIDERATION THE APPELLATE ORDER OF HIGHER AUTHORITIES. THUS, THIS GROUND IS PARTLY ALLOWED. 5.3 SECONDLY, HONBLE JURISDICTIONAL BENCH OF ITAT HAS ALSO DECIDED THIS ISSUE IN FAVOUR OF THE PRESEN T APPELLANT FROM ASSESSMENT YEAR 1996-97 TO ASSESSMENT YEAR 2004-05. THE DEPARTMENT HAS FILED APPEAL BEFORE THE HONBLE BOMBAY HIGH COURT FOR THE ASSESSMENT YEAR 2003-04 AND ASSESSMENT YEAR 2004-05. HONBLE BOMBAY HIGH COURT HAS FURTHER REJECTED THE APPEAL OF THE DEPARTMENT. HONBLE BOMBAY HIGH COURT HAS STATED IN PARA 3 AS UNDER:- 3. UPTO THE ASSESSMENT YEAR 2002-03 THE ASSESSEE HAD NOT CLAIMED DEPRECIATION WHILE COMPUTING DEDUCTION UNDER CHAPTER VIA OF THE INCOME TAX ACT, 1961. HOWEVER, IN THE ASSESSMENT YEAR, IN QUESTION, THE ASSESSEE COMPUTED DEDUCTION UNDER CHAPTER VIA AFTER TAKING INTO ACCOUNT THE DEPRECIATION ALLOWABLE ITA NO.4072&4018/M/2014 A.Y. 2010-11 14 UNDER THE ACT. THE ASSESSING OFFICER WAS OF THE OPINION THAT THE DEPRECIATION HAS TO BE COMPUTED ON THE WRITTEN DOWN VALUE OF THE ASSET COMPUTED IN THE EARLIER ASSESSMENT YEARS BY THRUSTING DEPRECIATION UPON THE ASSESSEE. ADMITTEDLY, THE DEPRECIATION THIRSTED UPON THE ASSESSEE IN THE EARLIER YEARS HAVE BEEN DELETED BY ITAT AND THOSE ORDERS HAVE ATTAINED FINALITY. IN THESE CIRCUMSTANCES, THE DECISION OF THE ITAT IN HOLDING THAT IN THE ASSESSMENT YEAR IN QUESTION, THE DEPRECIATION HAS TO BE COMPUTED ON THE WRITTEN DOWN VALUE DETERMINED ON THE FOOTING THAT DEPRECIATION WAS NOT THRUSTED UPON THE ASSESSEE IN THE EARLIER ASSESSMENT ORDERS CANNOT BE FAULTED. ACCORDINGLY, THE FIRST QUESTION RAISED BY THE REVENUE CANNOT BE ENTERTAINED. 5.4. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE AND IN THE LIGHT OF THE PRESENT MATTER BEING SQUARELY COVERED IN FAVOUR OF THE APPELLANT BY THE APPELLATE ORDERS OF HONBLE BOMBAY HIGH COURT, HONBLE ITAT MUMBAI BENCH AND MY LD. PREDECESSOR, GROUND OF APPEAL NO.1 IS ALLOWED. ITA NO.4072&4018/M/2014 A.Y. 2010-11 15 5.2.1 IT IS ADMITTED EVEN BY THE A.O. THAT FACTS DU RING THE YEAR UNDER CONSIDERATION ARE ALMOST IDENTICAL. THE APPEAL ORDER OF LAST YEAR IS BASED ON THE FINDING O F JURISDICTIONAL ITAT AND HIGH COURT IN THE CASE OF APPELLANT FOR EARLIER YEARS. ACCORDINGLY, I DO NOT FIND ANY REASON TO DEVIATE FROM THE SAME WHICH WAS MADE AFTER CONSIDERING THE DECISION OF JURISDICTIONAL BOMBAY HIGH COURT AND HONBLE ITAT MUMBAI BENCH. IN VIEW OF THE ABOVE PRECEDENT, THE GROUND OF APPEAL NO.1 IS ALLOWED. NO DISTINGUISHABLE FACTS HAS BEEN PLACED ON RECORD BY THE REVENUE TO WHICH IT CAN BE ASSUMED THAT THE LEARNED CIT(A) HAS DECIDED THE MATTER WRONGLY AND ILLEGALLY. THE CIT(A) HAS DECID ED THE ISSUE ON THE BASIS OF ORDER PASSED BY THE INCOME TAX APPELLA TE TRIBUNAL, MUMBAI AND BY THE ORDER OF HONBLE HIGH COURT IN TH E ASSESSEE OWN CASE. RELIANCE IS PLACED UPON THE LAW SETTLED IN THE ASSESSEES OWN CASE FOR A.Y.2003-04 AND 2004-05 IN CASE OF CIT VS. GARWARE WALL ROPES (ITA NO.5555 OF 2010 AND ITA NO.5556 OF 2010) PASSED BY THE HONBLE BOMBAY HIGH COURT. IN VIEW OF THE SAI D CIRCUMSTANCES WE FIND NO GROUND TO INTERFERE WITH OBSERVATIONS MA DE BY THE CIT(A) IN THE ORDER UNDER CHALLENGED, THEREFORE, WE ARE OF THE VIEW THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY JUDICI OUSLY AND CORRECTLY WHICH DOES NOT REQUIRE TO INTERFERE WITH AT THIS APPELLATE ITA NO.4072&4018/M/2014 A.Y. 2010-11 16 STAGE. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOU R OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NO.2:- 11. THE ISSUE NO.2 IS IN CONNECTION WITH THE DELETI ON OF DISALLOWANCE OF RS.10,19,830/- MADE U/S.14A R.W. RU LE 8D, AS AGAINST DISALLOWANCE OF RS.2,39,855/- MADE BY THE ASSESSEE. BEFORE DISCUSSING THE MATTER OF CONTROVERSY, IT IS NECESSA RY TO ADVERT THE OBSERVATIONS MADE BY THE CIT(A) WHILE DECIDING THIS ISSUE ON RECORD. THE FINDING IS HEREBY MENTIONED BELOW:- 5.3 GROUND OF APPEAL NO.2:- IT IS NOTED THAT THIS ISSUE WAS ALSO UNDER DISPUTE IN IMMEDIATELY PRECEDING A.Y.2009-10, WHEREIN VIDE ORD ER DATED 15.01.2014 THE HONBLE ITAT HAS DECIDED THIS ISSUE. THE RELEVANT PARA 2.4 OF THE ORDER ITAT IS REPRODUCED HEREUNDER:- 2.4 WE HAVE CONSIDERED THE RIVAL SUBMISSION AND CAREFULLY PERUSED THE RELEVANT RECORDS. SO FAR AS THE ISSUE REGARDING DISALLOWANCE U/S.14A IN THE CASE WHERE NO DIVIDEND HAS BEEN RECEIVED, THE SAME IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2008-09, WHEREIN THE TRIBUNAL HAS ITA NO.4072&4018/M/2014 A.Y. 2010-11 17 FOLLOWED THE DECISION OF SPECIAL BENCH OF TRIBUNAL WHILE DECIDING THE ISSUE. THEREFORE, WE DO AGREE WITH THE FINDING IF THE TRIBUNAL ON THIS POINT. FURTHER SINCE THE ASSESSEE HAS RAISED THE NEW PLEA IN THE YEAR UNDER CONSIDERATION THAT NO EXPENDITURE HAD BEEN INCURRED BY THE ASSESSEE FOR EARNING THE EXEMPT INCOME OR FOR THE INVESTMENT IN QUESTION. WE FIND MERIT AND SUBSTANCE IN THE CONTENTION OF THE ASSESSEE ON THIS POINT BECAUSE THE INVESTMENT HAS BEEN MADE BY THE ASSESSEE IN THE GROUP CONCERN AND NOT IN THE SHARES OF ANY UN-RELATED PARTY. THEREFORE, THE PRIMARY EFFECT OF INVESTMENT IS HOLDING CONTROLLING STAKE IN THE GROUP CONCERN AND NOT EARNING ANY INCOME OUT OF INVESTMENT. FURTHER THE INVESTMENT WERE MADE LONG BACK AND NOT FOR THE YEAR UNDER CONSIDERATION. THEREFORE, I N VIEW OF THE FACT THAT THE INVESTMENT ARE IN THE GROUP CONCERN WE DO NOT FIND ANY REASON TO BELIEVE THAT THE ASSESSEE WOULD HAVE INCURRED NAY ADMINISTRATIVE EXPENSES IN HOLDING THESE INVESTMENTS. THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SHOW THAT THE ASSESSEE HAS INCURRED ANY EXPENDITURE IN RELATION TO THE INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME. SECTION ITA NO.4072&4018/M/2014 A.Y. 2010-11 18 14A HAS WITHIN IT IMPLICIT THE NOTION OF APPORTIONMENT IN THE CASES WHERE THE EXPENDITURE IS INCURRED FOR COMPOSITE/INDIVISIBLE ACTIVITIES IN WHICH TAXABLE AND NON TAXABLE INCOME IS RECEIVED BUT WHEN NO EXPENDITURE HAS BEEN INCURRED IN RELATION TO THE EXEMPT INCOME IS RECEIVED BUT WHEN NO EXPENDITURE HAS BEEN INCURRED IN RELATION TO THE EXEMPT INCOME BY DEDUCTING THE EXPENDITURE INCURRED TO EARN THE EXEMPT INCOME. IN THE CASE IN HAND IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE HAS INCURRED ANY DIRECT EXPENDITURE OR ANY INTEREST EXPENDITURE FOR EARNING THE EXEMPT INCOME OR KEEPING THE INVESTMENT IN QUESTION. IF THERE IS EXPENDITURE DIRECTLY OR INDIRECTLY INCURRED IN RELATION TO EXEMPT INCOME THE SAME CANNOT BE CLAIMED AGAINST THE INCOME WHICH IS TAXABLE. FOR ATTRACTING THE PROVISIONS OF SECTION 14A THERE SHOULD BE PROXIMATE CAUSE FOR DISALLOWANCE WHICH HAS RELATIONSHIP WITH THE TAX EXEMPT INCOME AS HELD BY THE HONBLE SUPREME COURT IN CASE OF CIT VS. WALFORT SHARE AND STOCK BROKERS P. LTD. (326 ITR 1). THEREFORE, THERE SHOULD BE A PROXIMATE RELATIONSHIP BETWEEN THE EXPENDITURE AND THE INCOME WHICH DOES NOT FORM PART OF THE TOTAL ITA NO.4072&4018/M/2014 A.Y. 2010-11 19 INCOME. IN THE CASE IN HAND THE ASSESSEE HAS CLAIMED THAT NO EXPENDITURE HAS BEEN INCURRED FOR EARNING THE EXEMPT INCOME, THEREFORE, IT WAS INCUMBENT ON THE AO TO FIND OUT AS TO WHETHER THE ASSESSEE HAS INCURRED ANY EXPENDITURE IN RELATION T O INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME AND IF SO TO QUANTIFY THE EXPENDITURE OF DISALLOWANCE. THE AO HAS NOT BROUGHT ON RECORD ANY FACT OR MATERIAL TO SHOW THAT ANY EXPENDITURE HAS BEEN INCURRED ON THE ACTIVITY WHICH HAS RESULTED INTO BOTH TAXABLE AND NON TAXABLE INCOME. THEREFORE, IN OUR VIEW WHEN THE ASSESSEE HAS PRIMA FACIE BROUGHT OUT A CASE THAT NO EXPENDITURE HAS BEEN INCURRED FOR EARNING THE EXEMPT INCOME THE PROVISIONS OF SECTION 14A CANNOT BE APPLIED. ACCORDINGLY, WE DELETE THE ADDITION DISALLOWANCE MADE BY AO U/.S14 A R.W. RULE 8D. 5.3.1. SINCE THE FACTS ARE IDENTICAL DURING THE YEA R UNDER CONSIDERATION ALSO, ACCORDINGLY RESPECTFULLY FOLLOWING THE ORDER OF HONBLE ITAT IN IMMEDIATELY PROCEEDING YEAR, IT IS HELD THAT THE A.O. SHOULD EXCLUDE THE OLD INVESTMENTS IN GROUP CONCERNS OF THE APPELLANT AS THE APPELLANT HAS NOT ITA NO.4072&4018/M/2014 A.Y. 2010-11 20 INCURRED ANY ADMINISTRATIVE EXPENSES IN HOLDING SUCH INVESTMENTS. THIS GROUND OF APPEAL IS ACCORDINGLY STATISTICALLY PARTLY ALLOWED. 12. IN VIEW OF THE OBSERVATIONS MADE BY THE CIT(A), IT IS APPARENT ON RECORD THAT THE CIT(A) HAS PASSED THE ORDER ON T HE BASIS OF THE ORDER PASSED BY THE INCOME TAX APPELLATE, MUMBAI FO R THE A.Y.2009- 10 IN ASSESSEES OWN CASE. THE CIT(A) HAS ALSO REP RODUCED THE RELEVANT PARA OF THE ITAT ORDER WHICH HAS BEEN MENT IONED ABOVE. RELIANCE IS PLACED UPON THE LAW RELIED IN GARWARE W ALL ROPES LTD. V/S. ACIT OF HONBLE ITAT FOR A.Y.2008-09 (65 SOT 8 6), MUMBAI AND J.M. FINANCIAL LIMITED VS. ACIT 4521/M/12 AND K OTAK MAHINDRA CAPITAL CO. LTD. VS. DCIT (ITA NO.5748/MUM/2012). N O DISTINGUISHABLE FACTS HAVE BEEN PLACED ON RECORD. THE INVESTMENT IS THE STRATEGIC INVESTMENT IN THE GROUP CONCERN WHICH DOES NOT MADE TO EARN THE EXEMPT INCOME. IT IS HELD THAT THE ASSESS ING OFFICER SHOULD EXCLUDE THE WHOLE INVESTMENT IN GROUP CONCERNS OF T HE APPELLANT. IN VIEW OF THE SAID CIRCUMSTANCES IT IS QUITE CLEAR TH AT THE MATTER OF CONTROVERSY HAS BEEN ADJUDICATED ON THE BASIS OF TH E CASE DECIDED BY THE ITAT, MUMBAI IN ASSESSEES OWN CASE. WE FIND N O REASON TO DISHONOR THE FINDING GIVEN BY THE CIT(A) ON THE BAS IS OF THE DECISION OF ITAT, MUMBAI IN THE ASSESSEES OWN CASE. THEREF ORE, IN THE SAID CIRCUMSTANCES WE ARE OF THE VIEW THAT THE CIT(A) HA S PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH DOES NOT REQUIRE TO INTERFERE WITH AT ITA NO.4072&4018/M/2014 A.Y. 2010-11 21 THIS APPELLATE STAGE. ACCORDINGLY THIS ISSUE IS DE CIDED IN FAVOUR ASSESSEE AGAINST THE REVENUE. ISSUE NO.3:- 14. THE ISSUE NO.3 IS IN CONNECTION WITH THE DELETI NG THE DISALLOWANCE OF RS.1,82,02,000/- MADE BY THE A.O. U /S.35 OF THE ACT IN RESPECT OF THE CAPITAL EXPENDITURE ON RESEARCH A ND DEVELOPMENT. BEFORE DISCUSSING THE MATTER OF CONTROVERSY FURTHER IT IS NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD:- 5.6 GROUND OF APPEAL NO.5:- IT IS NOTED THAT DURING THE ASSESSMENT PROCEEDING T HE INITIAL CLAIM OF DEDUCTION U/S.35 OF THE I T ACT WA S ENHANCED FROM 100% TO 150% U/S.35(2AB), HOWEVER, TH E AO DID NOT ENTERTAIN THE ENHANCED CLAIM OF DEDUCTIO N ON THE GROUND THAT SUCH CLAIM HAS BEEN MADE BY THE APPELLANT AFTER THE DUE DATE OF FILING OF REVISED R ETURN. ACCORDINGLY, THE AO REJECTED THE SAME ON THE GROUND THAT IN THE LIGHT OF DECISION OF GOETZ INDIA LTD. S UCH CLAIM CANNOT BE ACCEPTED WITHOUT REVISED RETURN. O N THE OTHER HAND THE CLAIM OF THE APPELLANT IS THAT IT CO ULD ENHANCE THE CLAIM ONLY AFTER APPROVAL U/S.35(2AB) W AS RECEIVED AND BY THAT TIME THE LIMITATION OF REVISIN G THE RETURN WAS LAPSED. AFTER CONSIDERING THE RIVAL ITA NO.4072&4018/M/2014 A.Y. 2010-11 22 SUBMISSIONS, I AGREE WITH THE CONTENTION OF THE APP ELLANT THAT EVEN IF A GENUINE CLAIM IS MADE DURING THE ASSESSMENT PROCEEDINGS AFTER THE TIME LIMIT OF FILI NG OF REVISED RETURN THE APPELLATE AUTHORITIES CAN ENTERT AIN SUCH CLAIM ON MERIT. THE HONBLE ITAT, MUMBAI IN THE CA SES OF M/S. RECOH INDIA LTD. AND PRADEEP KUMAR HARLALKA RELIED UPON BY THE APPELLANT HAS CATEGORICALLY HELD THAT THE RATIO OF THE APEX COURTS DECISION IN M/S. GOET Z INDIA LTD. IS NOT APPLICABLE ON THE APPELLATE AUTHORITIES . IN THE INSTANT CASE ON MERIT OF THE CLAIM OF WEIGHTED DEDU CTION, THE AO ALSO HAS NOT MADE ANY ADVERSE OBSERVATION ON THE ALLOWABILITY ON WEIGHTED DEDUCTION U/S.35(2AB) EXCE PT THE TECHNICAL OBJECTION THAT THE SAME WAS NOT CLAI MED BY THE WAY OF REVISED RETURN. UNDER THESE CIRCUMSTANC ES, IT IS HELD THAT DUE TO LATE RECEIPT OF APPROVAL OF WEI GHTED DEDUCTION THE APPELLANT COULD NOT FILE THE REVISED RETURN IN TIME AND IT HAD TO CLAIM IT AFTER RECEIPT OF APP ROVAL OF THE COMPETENT AUTHORITY. SINCE THE COMPETENT AUTHO RITY HAS APPROVED THE CLAIM OF THE APPELLANT, THE AO IS DIRECTED TO ALLOW THE SAME TO THE APPELLANT. THE CLAIM OF THE ASSESSEE WAS DECLINED ON THE GROUN D OF THAT THE ASSESSEE RECEIVED THE APPROVAL LATE AND THE ASSESSE E SHOULD CLAIM THE EXEMPTION BY FILING THE REVISED RETURN WHICH THE AS SESSEE HAD NOT ITA NO.4072&4018/M/2014 A.Y. 2010-11 23 DONE. THE CIT(A) IS OF THE VIEW THAT NO DOUBT THE ASSESSEE RECEIVED THE APPROVAL LATE BUT THE ASSESSEE CAN RAISE THE CL AIM BY FILING THE REVISED RETURN BEFORE THE COMPETENT AUTHORITY EVEN AT THE STAGE OF APPEAL WHICH CAN BE ACCEPTED THEREFORE, ALLOWED THE CLAIM OF THE ASSESSEE. UNDOUBTEDLY, THE APPROVAL U/S.35(2AB) OF THE ACT WAS NOT RECEIVED WELL IN TIME AND AFTER RECEIPT OF APPROVAL THE ASSESSEE CLAIMED THE CAPITAL EXPENDITURE BY FILING THE REVIS ED RETURN. THE CIT(A) HAS CONSIDERED THE CLAIM OF THE ASSESSEE IN ACCORDANCE WITH LAW. THEREFORE, WE ARE OF THE VIEW THAT THE CIT(A) HAS DECIDED THIS ISSUE JUDICIOUSLY AND CORRECTLY WHICH DOES NOT REQU IRE TO INTERFERE WITH AT THIS APPELLATE STAGE. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED AND APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JULY , 2016. SD/- SD/- (B.R.BASKARAN) (AMARJIT SINGH) # / ACCOUNTANT MEMBER %& # /JUDICIAL MEMBER ' ( MUMBAI; )# DATED : 13 TH JULY, 2016 MP MP MP MP ITA NO.4072&4018/M/2014 A.Y. 2010-11 24 ) * +$!', -,'! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. * ( ) / THE CIT(A)- 4. * / CIT 5. -./ &&01 , 01' , ' ( / DR, ITAT, MUMBAI 6. /34 5 / GUARD FILE. ) / BY ORDER, - & //TRUE COPY// ./# /(DY./ASSTT. REGISTRAR) , ' ( / ITAT, MUMBAI