HAPAG LLOYD INDIA P. LTD, MUMBAI V. DCIT 7(1)(2), MUMBAI

ITA 427/MUM/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3953 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 29-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Keywords: Transfer pricing; International transaction; Wholly owned subsidiary
• Section: 92

Judgement Text

427/16(11-12)HAPAG-LLOYD 1 , INCOME-TAX APPELLATE TRIBUNAL -KBENCH MUMBAI , . . , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND C.N. PRASAD,JUDICIAL MEMBER ./I.T.A./427/MUM/2016, /ASSESSMENT YEAR: 20011-12 HAPAG-LLOYD INDIA PRIVATE LIMITED 1121 AND 1122, SOLITAIRE CORPORATE PARK BUILDING NO.11, 2 ND FLOOR, CHAKALA, ANDHERI EAST,MUMBAI-400 020. PAN: AABCH 7319 B VS. DY. CIT-7(1)(2), ROOM NO.130, 1 ST FLOOR, AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 020. REVENUE BY: SHRI N.K. CHAND ASSESSEE BY: SHRI AJIT KUMAR JAIN / DATE OF HEARING: 02.05.2016 / DATE OF PRONOUNCEMENT: 02.05.2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) !' PER RAJENDRA, AM - CHALLENGING THE ORDER,DATED 31.12.2015,OF THE ASSE SSING OFFICER(AO),PASSED U/S.143 (3)R.W.S.144C (13) OF THE ACT,THE ASSESSEE HAS FILED VARIOUS GROUNDS OF APPEAL.ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF PROVIDING BUSINESS SUPPORT SERVICES TO ITS PARENT COMPANY IN THE FORM OF ASSISTING IN BOOKING OF SHIPMENTS, FREIGHT COLLECTION, TRANSPORTATION OF CO NTAINERS ETC.,FILED ITS RETURN OF INCOME ON DECLARING INCOME OF RS.4,58,57,900 /-.THE AO MADE A REFERENCE TO THE TRANSFER PRICING OFFICER(TPO)TO DETERMINE THE A RMS LENGTH PRICE(ALP)OF THE INTERNATIONAL TRANSACTION,ENTERED INTO BY IT WI TH ITS ASSOCIATED ENTERPRISES (AES),AS PER THE PROVISIONS OF SECTION 92 OF THE AC T.FINALLY,HE MADE AN ADJUSTMENT OF RS.68,56,53,420/-TO THE TOTAL INCOME OF THE ASSESSEE FOR THE SERVICE RENDERED UNDER THE HEAD BUSINESS SUPPORT S ERVICES. 2. DURING THE COURSE OF HEARING REPRESENTATIVES OF BOT H THE SIDES AGREED THAT THE IDENTICAL ISSUE HAS BEEN DECIDED BY THE TRIBUNAL,WH ILE ADJUDICATING THE APPEALS FOR THE AY.S.2008-09&2009-10(ITA/7771/MUM/2012,&ITA /1374/MUM/ 2014). WE FIND THAT THE TRIBUNAL HAS DELIBERATED UPON THE ISSUE AT LENGTH WHILE DECIDING THE APPEALS OF THE ABOVE AY.S.WE WOULD LIK E TO REPRODUCE THE RELEVANT PORTION OF THE ORDER OF THE TRIBUNAL AND SAME READS AS UNDER: 427/16(11-12)HAPAG-LLOYD 2 THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE ASSESSMENT ORDERS PASSED U/S. 144C(13) OF THE INCOME TAX ACT, 1961 (THE ACT) IN PURSUANT TO THE DIRECTIONS OF THE DRP U/S. 144C(5) FOR THE ASSESSMENT YEAR 2008-09 AN D 2009-10 RESPECTIVELY. 2. FOR THE ASSESSMENT YEAR 2008-09 THE ASSESSEE HAS RAISED VARIOUS GROUNDS. HOWEVER, THE ONLY ISSUE ARISING FOR OUR CONSIDERATI ON AND ADJUDICATION IS WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE AO/TPO/ DRP HAS ERRED IN MAKING THE ADJUSTMENT OF RS.18.37 CRORES IN RESPECT OF THE INT ERNATIONAL TRANSACTION PERTAINING TO THE TRANSACTION OF BUSINESS SUPPORT SERVICES. 2.1 THE ASSESSEE IS A 100% SUBSIDIARY OF HAPAG LLO YD AG (HLAG) AND IS A CAPTIVE UNIT ENGAGED IN PROVIDING BUSINESS SUPPORT SERVICES TO ITS PARENT COMPANY. THE ASSESSEE COMPANY ASSISTED IN BOOKING SHIPMENTS REQUIREMENTS REQUIRED TO BE MOVED FROM ONE LOCATION TO ANOTHER. THE ASSESSEE HA S ENTERED INTO A SHIPPING AGENCY AGREEMENT WITH HLAG, ACCORDING TO WHICH IT WAS APPO INTED AS THE AGENT FOR HLAG. THE ASSESSEE WAS ALSO AUTHORIZED TO APPOINT SUB-AG ENTS WITH PRIOR WRITTEN APPROVAL OF HLAG. AS PER THE AGREEMENT THE ASSESSEE IS ENTIT LED TO RECEIVE COST PLUS(+) 10%. THE ASSESSEE HAS REPORTED THE INTERNATIONAL TRANSAC TIONS, INTERALIA, PROVISION OF BUSINESS SUPPORT SERVICES OF RS.39,63,61,566/-. THE ASSESSEE SELECTED TNMM AS THE MOST APPROPRIATE METHOD AND USED OP/TC AS PLI AND W ORK OUT THE MARGIN OF THE COMPARABLES AT 8.78% IN COMPARISON TO 10% OF THE AS SESSEE. ACCORDINGLY, THE ASSESSEE CLAIMED THE PRICE CHARGED FROM THE AE AS A RMS-LENGTH. THE TPO NOTED THAT THE ASSESSEE HAD PAID COMMISSION OF RS.17.93 CRORES . THE ASSESSEE WAS ASKED TO GIVE THE NAME OF EARLIER AGENT WHO WAS MANAGING THE BUSI NESS OF HLAG IN INDIA. THE AGENTS NAME WAS SEARCHED BY THE TPO FROM THE INTERN ET BEING GERMAN EXPRESS SHIPPING AGENCY PVT. LTD. (GESA). THE ASSESSEE WAS ASKED TO FILE COPY OF AGREEMENT BETWEEN GESA AND HLAG. THE ASSESSEE SUBMITTED THAT THE SAME IS NOT AVAILABLE WITH THE ASSESSEE AS THERE WAS A FIRE IN WHICH THE DOCUM ENTS WERE DESTROYED. THE TPO ISSUED SUMMONS U/S.131 OF THE INCOME TAX ACT TO GES A, TO FILE BOTH THE AGREEMENTS. THE COPIES OF THE AGREEMENTS WERE FILED. CONSEQUENT LY, THE TPO ISSUED A SHOW-CAUSE TO THE ASSESSEE AS TO WHY AN INTERNAL CUP IN THE FO RM OF SUB-AGENCY BETWEEN THE ASSESSEE AND GESA SHOULD NOT BE APPLIED FOR THE PUR POSE OF DETERMINATION OF ALP. THE ASSESSEE CONTENDED BEFORE THE TPO THAT THE SUB- AGENCY AGREEMENT CANNOT BE APPLIED AS CUP AS IT WAS NOT THE AGREEMENT BETWEEN THE GESA AND HLAG. THE TPO DID NOT ACCEPT THE ASSESSEES SUBMISSION AND ADOPTE D CUP AS MOST APPROPRIATE METHOD BY CONSIDERING THE FACT THAT BEFORE THE APPO INTMENT OF ASSESSEE AS AN AGENT, 427/16(11-12)HAPAG-LLOYD 3 GESA WAS SOLE AGENT OF WHOLE TERRITORY OF INDIA AND AFTER SUB AGENT AGREEMENT, SUB- AGENT WAS PERFORMING EXACTLY THE SAME SERVICES TO A G FOR THE TERRITORY INCLUDING INDIA AND NEPAL BUT EXCLUDING THE TERRITORY OF THE ASSESSEE. ACCORDINGLY THE TPO PROPOSED THE ADJUSTMENT OF RS.18,37,36,236/- ON THE BASIS OF THE ALP DETERMINED AT RS.38,28,51,634/- BY APPLYING CUP AS MOST APPROPRIA TE METHOD. 3. THE ASSESSEE FILED OBJECTIONS BEFORE DRP AND CON TENDED THAT CUP IS NOT THE MOST APPROPRIATE METHOD AS STRINGENT COMPARABILITY IS REQUIRED UNDER THIS METHOD. THE AGENCY AGREEMENT BETWEEN GESA AND HLAG IS NOT A PPROPRIATE CUP AS IT WAS ALREADY TERMINATED ON 31 ST DECEMBER 2006. SIMILARLY SUB AGENCY AGREEMENT BETW EEN GESA AND THE ASSESSEE IS NOT AN APPROPRIATE CUP. IT WAS CONTENDED THAT BUSINESS DECISION CANNOT BE QUESTIONED BY THE INCOME TAX AUT HORITIES. THE DRP DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE AC TION OF THE AO/TPO. XXXXXXXXXXXX 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. UPTO 31/12/2006 GESA WAS PROVIDING THE SERV ICES FOR BOOKING SHIPMENTS TO HLAG UNDER AGENCY AGREEMENT OF 1993. GESA WAS CHARG ING A CERTAIN PERCENTAGE ON THE FREIGHT TURNOVER AS COMMISSION APART FROM FIXED CHARGES @ US$ 10 PER INLAND BOX. OTHER FEE IS AS PER RBI GUIDELINES AS WELL A F EE FOR CONSIGNMENT DELIVERY AND BILL OF LADING. 6.1 ON THE OTHER HAND THE ASSESSEE WAS APPOINTED AS AGENT W.E.F. 01/01/2007 AND IS REMUNERATED FOR THE SERVICES RENDERED TO AE AT C OST PLUS 10% MARK-UP. THE ASSESSEE WAS ALSO AUTHORIZED BY THE AE HLAG TO APPO INT GESA AS SUB-AGENT FOR PROVIDING SERVICES FOR CERTAIN TERRITORIES OF INDI A AND THE ENTIRE TERRITORY OF NEPAL. THE SUB-AGENT IS REMUNERATED ON THE SAME BASIS AS I T USED TO RECEIVE THE COMMISSION UNDER 1993 AGREEMENT. THE ASSESSEE BENCHMARKED ITS INTERNATIONAL TRANSACTIONS BY ADOPTING TNMM AS MOST APPROPRIATE METHOD. THE TPO D ID NOT ACCEPT TNMM METHOD AND APPLIED INTERNAL CUP BEING THE PRICE/COMMISSION RECEIVED BY GESA FROM HLAG UNDER 1993 AGREEMENT, AS WELL AS UNDER SUB-AGENCY A GREEMENT DATED 27/02/2007 W.E.F. 01/01/2007. IT IS PERTINENT TO NOTE THAT AFT ER THE TERMINATION OF AGREEMENT BETWEEN HLAG AND GESA W.E.F. 31/12/2006, GESA WAS N OT PROVIDING SERVICES TO HLAG, BUT UNDER THE SUB AGENCY AGREEMENT, THE SERVI CES ARE BEING PROVIDED TO THE ASSESSEE. THE QUESTION ARISES WHETHER THE PRICE CHA RGED FOR SERVICES BY GESA TO HLAG UPTO 31.12.2006 CAN BE CONSIDERED AS INTERNAL CUP FOR THE PURPOSE OF DETERMINATION OF ALP FOR THE SERVICES PROVIDED BY T HE ASSESSEE TO AE DURING THE FY 427/16(11-12)HAPAG-LLOYD 4 2007-08 ONWARDS. THE TPO SUPPORTED HIS ACTION BY RE FERRING RULE 10B(4) AND TOOK THE OLD PRICE TO COMPARE WITH THE CURRENT YEARS PRI CE. IT APPEARS THAT THE TPO MISUNDERSTOOD THE PROVISO TO RULE 10B(4) OF THE INC OME TAX RULES. IN ORDINARY SITUATION ONLY CURRENT YEAR/CONTEMPORANEOUS DATA CA N BE USED FOR COMPARING UNCONTROLLED PRICE WITH THE CONTROLLED PRICE. ONLY IN THE CASE OF EXCEPTIONAL CIRCUMSTANCES, THE DATA RELATING TO EARLIER YEARS B UT NOT MORE THAN TWO YEARS PRIOR TO THE CURRENT YEAR, CAN BE USED, IF, SUCH DATA REVEAL S FACTS WHICH CAN HAVE AN INFLUENCE ON THE DETERMINATION OF ARMS-LENGTH-PRICE IN RELAT ION TO THE INTERNATIONAL TRANSACTION. THEREFORE, THE TWO YEARS PRIOR DATA CAN BE USED ALO NG WITH THE CURRENT YEAR DATA. THE SITUATION UNDER WHICH THE OLDER DATA CAN BE USED IS ILLUSTRATED UNDER PROVISO TO RULE 10D(4) AS UNDER :- 10D(4) THE INFORMATION AND DOCUMENTS SPECIFIED UN DER SUB-RULE (1) AND (2), SHOULD, AS FAR AS POSSIBLE, BE CONTEMPORAN EOUS AND SHOULD EXIST LATEST BY THE SPECIFIED DATE REFERRED TO IN C LAUSE (IV) OF SECTION 92F: PROVIDED THAT WHERE AN INTERNATIONAL TRANSACTION CO NTINUE TO HAVE EFFECT OVER MORE THAN ONE PREVIOUS YEAR, FRESH DOCU MENTATION NEED NOT BE MAINTAINED SEPARATELY IN RESPECT OF EACH PREVIO US YEAR, UNLESS THERE IS ANY SIGNIFICANT CHANGE IN THE NATURE OF TE RMS OF THE INTERNATIONAL TRANSACTION, IN THE ASSUMPTIONS MADE, OR IN ANY OTHER FACTOR WHICH COULD INFLUENCE THE TRANSFER PRICE, AN D IN THE CASE OF SUCH SIGNIFICANT CHANGE, FRESH DOCUMENTATION AS MAY BE N ECESSARY UNDER SUB-RULES (1) AND (2) SHALL BE MAINTAINED BRING OUT THE IMPACT OF THE CHANGE ON THE PRICING OF THE INTERNATIONAL TRANSACT ION. 6.1.1 THEREFORE, THE USE OF EARLIER DATA IS AN EXCE PTION AND CANNOT BE APPLIED IN EXCLUSION OF CURRENT YEAR DATA. IN OTHER WORDS, IN THE CASE OF EXISTENCE OF EXCEPTIONAL CIRCUMSTANCES THE PRIOR TWO YEARS DATA ALONG WITH C URRENT YEAR DATA CAN BE USED. ONCE THE GESA CEASES TO BE AGENT OF HLAG W.E.F. 31. 12.2006, THEN IN THE ABSENCE OF CURRENT/CONTEMPORARY DATA / UNCONTROLLED PRICE, THE PRICE OF PRIOR YEAR CANNOT BE CONSIDERED FOR DETERMINATION OF ALP IN RELATION TO INTERNATIONAL TRANSACTION ENTERED IN CURRENT YEAR. 6.2 THE ANOTHER ASPECT OF CONSIDERING THE SAID PRIC E BETWEEN GESA AND ASSESSEE AS INTERNAL CUP IS THAT IT DOES NOT SATISFY THE BA SIC INGREDIENT OF A TRANSACTION 427/16(11-12)HAPAG-LLOYD 5 BETWEEN AN UNRELATED PARTY AND ASSOCIATE ENTERPRISE OF THE ASSESSEE IN THE PARITY OF THE SERVICES PROVIDED BY THE ASSESSEE TO THE AE. U NITED NATIONS PRACTICAL MANUAL ON TRANSFER PRICING FOR DEVELOPING COUNTRIES HAS DISCU SSED THE COMPARABLE UNCONTROLLED PRICE (CUP) IN PARA-6.2.1.1 AS UNDER :- 6.2.1.1 THE COMPARABLE UNCONTROLLED PRICE (CUP) ME THOD COMPARES THE PRICE CHARGED FOR PROPERTY OR SERVICES TRANSFERRED IN A C ONTROLLED TRANSACTION TO THE PRICE CHARGED FOR PROPERTY OR SERVICES TRANSFERRED IN A C OMPARABLE UNCONTROLLED TRANSACTION IN COMPARABLE CIRCUMSTANCES. THE CUP ME THOD MAY ALSO SOMETIMES BE USED TO DETERMINE THE ARMS LENGTH ROYALTY FOR THE USE OF AN INTANGIBLE ASSET. CUPS MAY BE BASED ON EITHER INTERNAL COMPARABLE TRANSA CTIONS OR ON EXTERNAL COMPARABLE TRANSACTIONS. FIGURE 6.1 BELOW EXPLAINS THIS DISTINCTION IN THE CONTEXT OF A PARTICULAR CASE STUDY. FIGURE 6.1 COMPARABLE UNCONTROLLED PRICE METHOD 6.2.1 IN THE CASE OF THE ASSESSEE, GESA DOES NOT PR OVIDE SERVICES TO HLAG . THEREFORE, IT CANNOT BE CONSIDERED AS INTERNAL CUP. MOREOVER, THE ASSESSEE IS PROVIDING THE SERVICES TO THE AE AND RECEIVING THE REMUNERATION AND IN TURN GETTING PART OF THE JOB DONE THROUGH SUB AGENT GESA AND REM UNERATING IT BY PAYING THE COMMISSION AS PER SUB AGENCY AGREEMENT. OUT OF THE TOTAL SERVICES PROVIDED BY THE ASSESSEE A PART IS PERFORMED THROUGH SUB-AGENT AND THE REMAINING IS PERFORMED BY THE ASSESSEE ITSELF. IT IS LIKE EXPORT OF GOODS PARTLY MANUFACTURED BY THE ASSESSEE AND 427/16(11-12)HAPAG-LLOYD 6 PARTLY PURCHASED FROM THIRD PARTY. HOWEVER, PURCHAS E PRICE OF THE GOODS EXPORTED CANNOT BE APPLIED AS CUP FOR SALE PRICE CHARGED TO THE AE. ACCORDINGLY CONSIDERING THE PRICE RECEIVED BY GESA AS CUP IS CONTRARY TO TH E TRANSFER PRICING REGULATION. WE DO NOT RULE OUT THE CUP AS MOST APPROPRIATE METHOD FOR DETERMINATION OF ALP OF INTERNATIONAL TRANSACTION IN QUESTION. HOWEVER, TH E COMPARABLE UNCONTROLLED PRICE MUST BE A PROPER UNCONTROLLED PRICE IN COMPLIANCE O F PROVISIONS OF TRANSFER PRICING. 6.2.2 THERE IS ONE MORE FALLACY IN THE TPOS ORDER REGARDING BIFURCATING THE INTERNATIONAL TRANSACTIONS INTO TWO SEGMENTS FOR DE TERMINING THE ALP. THE TPO ACCEPTED THE PRICE CHARGED BY THE ASSESSEE IN RESPE CT OF SERVICES PROVIDED THROUGH SUB-AGENCY, BUT WHILE COMPUTING THE ALP IT HAD IGNO RED THE CUP AND TOOK THE PRICE CHARGED BY THE ASSESSEE AS ALP. FURTHER, THE SERVIC ES PROVIDED BY THE ASSESSEE ON ITS OWN WERE COMPARED WITH CUP. THEREFORE, TWO SEPARATE ALP WERE DETERMINED BY THE TPO FOR THE SAME SERVICE PROVIDED BY THE ASSESSEE T O AE. EVEN IF THE CUP IS ADOPTED AS MOST APPROPRIATE METHOD ALP CANNOT BE MORE THAN PRICE RECEIVED BY GESA. WHEREAS THE TPO HAS TAKEN INTO CONSIDERATION THE PR ICE CHARGED BY THE ASSESSEE WITH 10% MARK-UP. HENCE, THE COMPUTATION OF ALP IS OTHER WISE NOT BASED ON CORRECT UNCONTROLLED PRICE. 6.2.3 WE MAY CLARIFY THAT THE INTERNATIONAL TRANSAC TION IN QUESTION SHOULD BE CONSIDERED AS ONE AND PRICE RECEIVED BY THE ASSESSE E IN TOTAL HAS TO BE COMPARED WITH THE ALP. THE ASSESSEE RECEIVED THE PRICE FOR PROVID ING THE SERVICE AS PER THE AGENCY AGREEMENT. THEREFORE, THE SERVICE PROVIDED BY THE A SSESSEE TO THE AE ARE CLOSELY INTERLINKED AND PRICE OF ONE PART IS DEPENDENT ON T HE PRICE OF THE OTHER PART. THEREFORE, THE ENTIRE SERVICES PROVIDED BY THE ASSE SSEE HAS TO BE TREATED AS ONE INTERNATIONAL TRANSACTION FOR THE PURPOSE OF DETERM INING THE ALP. 6.2.4 IN VIEW OF THE ABOVE DISCUSSION, AS WELL AS T HE FACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THE ISSUE TO THE RECORD OF TPO/A O, TO DECIDE THE SAME AFRESH, BY CONSIDERING IN THE LIGHT OF THE ABOVE OBSERVATION A S WELL AS THE DECISION OF THIS TRIBUNAL IN THE CASE OF UCB INDIA PVT. LTD. VS. AC IT DATED FEBRUARY 06, 2009 (2009-TII-02-ITAT-MUM-TP) ITA NO.428 & 429/MUM/2007 FOR ASSESSMENT YEARS 2002-03 AND 2003-04(SUPRA). 7. FOR THE ASSESSMENT YEAR 2009-10 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- XXXXXXXXXX 7.1 GROUND NO.1 TO 3 REGARDING TRANSFER PRICING ADJ USTMENT. 427/16(11-12)HAPAG-LLOYD 7 7.1.1 THE ISSUE INVOLVED IN THESE GROUNDS IS IDENTI CAL AND COMMON TO THE ISSUE INVOLVED IN ASSESSMENT YEAR 2008-09. IN VIEW OF OUR FINDING ON THIS ISSUE FOR THE ASSESSMENT YEAR 2008-09 THIS ISSUE IS SET ASIDE TO THE RECORD OF AO/TPO FOR FRESH CONSIDERATION ON THE SAME TERMS. 3. WE FURTHER FIND THAT THE TRIBUNAL HAD FOLLOWED THE ABOVE DECISION,WHILE ADJUDICATING THE APPEAL OF THE AY.2010-11(ITA/1134/ MUM/2015,DTD.27.02. 2015).CONSIDERING THE ABOVE,WE ARE RESTORING BACK T HE MATTER TO THE FILE OF THE TPO/AO FOR FRESH ADJUDICATION.HE IS DIRECTED TO FOL LOW THE DIRECTION APPEARING IN THE PARAGRAPH 6.2.4 OF THE ORDER FOR THE AY.2008 -09.EFFECTIVE GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE,IN PART . AS A RESULT APPEAL FILED BY T HE ASSESSEE STANDS PARTLY ALLOWED. . ORDER PRONOUNCED IN THE OP EN COURT ON 2 ND ,MAY, 2016. 2 , 2016 SD/- SD/- ( . . / C.N. PRASAD ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 02.05.2016. JV.SR.PS. # $ / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / !'#$ 2. RESPONDENT / %&#$ 3. THE CONCERNED CIT(A)/ ' !' ( , 4. THE CONCERNED CIT / ' ( 5. DR K BENCH, ITAT, MUMBAI / %* , ' , . ! . . 6. GUARD FILE/ - &' % //TRUE COPY// / BY ORDER, ' / ' DY./ASST. REGISTRAR !' !* , /ITAT, MUMBAI.