CHIRON PANACEA VACCINES P. LTD, MUMBAI V. ACIT 10(3), MUMBAI

ITA 430/MUM/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8042 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 01-02-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 18-01-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SHRIRAM BAJAI
• Keywords: Opportunity of being heard
• Section: 43B

Judgement Text

1 ITA NO.430/MUM/2010 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI C CC C BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE BEFORE BEFORE BEFORE SHRI R V EASWAR, PRESIDENT & SHRI R V EASWAR, PRESIDENT & SHRI R V EASWAR, PRESIDENT & SHRI R V EASWAR, PRESIDENT & SHRI R K PANDA, AM SHRI R K PANDA, AM SHRI R K PANDA, AM SHRI R K PANDA, AM ITA NO. ITA NO. ITA NO. ITA NO. 430/MUM/2010 430/MUM/2010 430/MUM/2010 430/MUM/2010 (ASST YEAR (ASST YEAR (ASST YEAR (ASST YEAR 2006 2006 2006 2006- -- -07 0707 07 ) )) ) CHIRON PANCEA VACCINES P LTD DELPHI A-401 402 HIRANANDANI PARK POWAI MUMBAI 76 VS THE ASST COMMR OF INCOME TAX 10(3), MUMBAI ( (( (APPELLANT APPELLANT APPELLANT APPELLANT) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO.AACCC4381K AACCC4381K AACCC4381K AACCC4381K A SSESSEE BY SHRI SHRIRAM BAJAI REVENUE BY SHRI P N DE VASAN /DR PER R K PA PER R K PA PER R K PA PER R K PANDA, AM NDA, AM NDA, AM NDA, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 5.11.2009 OF THE CIT(A) 22 MUMBAI RELATING TO ASS ESSMENT YEAR 2006-07. 2 GROUNDS OF APPEAL NO.1 BY THE ASSESSEE READS AS U NDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND ALSO IN LAW, THE LD CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF EXPE NDITURE ON PERFORMANCE INCENTIVES OF RS. 6,79,298/- AND SALES INCENTIVES O F RS. 12,09,650/-HOLDING THAT THE LIABILITY WAS CONTINGENT AND IT DID NOT CR YSTALLIZE DURING THE RELEVANT PREVIOUS YEAR. THE LD CIT(A) FAILED TO APP RECIATE, AND OUGHT TO HAVE HELD THAT THE ACCRUAL OF LIABILITY DOES NOT GE T POSTPONED FOR WANT OF QUANTIFICATION. YOUR APPELLANT, THEREFORE, PRAYS TH AT AFORESAID DISALLOWANCE IS DELETED. 2.1 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE COMPANY IS ENGAGED IN THE BUSINESS OF MARKETING, DISTRIBUTION AND SALES O F PAEDIATRIC VACCINES. IT FOLLOWS MERCANTILE SYSTEM OF ACCOUNT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED FROM THE P&L ACCOUNT TH AT THE ASSESSEE HAS MADE A 2 ITA NO.430/MUM/2010 PROVISION OF RS. 20,68,133/- TOWARDS SALES INCENTI VE AND RS. 11,79,403/- TOWARDS PERFORMANCE INCENTIVE. ON BEING QUESTIONED BY THE ASSESSING OFFICER TO EXPLAIN AS TO WHY THE DEDUCTION ON ACCOUNT OF PROVISIONS MA DE SHOULD NOT BE DISALLOWED, THE ASSESSEE REPLIED AS UNDER: SALES INCENTIVES AND PERFORMANCE INCENTIVES ARE DU E TO THE EMPLOYEES OF THE COMPANY AND THE SAME IS ALSO REFERRED TO IN THE APPOINTMENT LETTERS GIVEN TO THE EMPLOYEES. PROVISIONS TO THE SAME IS M ADE IN THE NORMAL COURSE OF THE BUSINESS AND PAID WHEN THE SAME IS EA RNED BY THE EMPLOYEE. FOLLOWING THE ACCOUNTING METHOD ON THE AC TUAL BASIS THE SAME IS ACCOUNTED AS AND WHEN IT IS PAYABLE. 2.2 HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIE D WITH THE EXPLANATION GIVEN BY THE ASSESSEE. ACCORDING TO HIM, THE WORD ACCRUED MEANS A NATURAL GROWTH OR INCREMENT, TO COME AS AN ADVANTAGE, AND T O ARISE OR SPRING AS A NATURAL GROWTH. ALTHOUGH, AS PER THE ASSESSEES TE RMS AND CONDITIONS WITH EMPLOYEES , HE HAS AGREED TO PAY SUCH INCENTIVES; H OWEVER, THE QUESTION THAT ARISES IS AS TO WHEN THE LIABILITY TO INCUR THE E XPENDITURE HAS ARISEN IN THE HANDS OF THE ASSESSEE. FROM THE DETAILS SUBMITTED BY THE ASSESSEE, HE NOTED THAT THE ASSESSEE HAS DECIDED TO GRANT SUCH INCENTI VES ONLY AFTER 31 ST MARCH. THIS IMPLIES THAT THE LIABILITY WAS NEITHER ACCRUED NOR CRYSTALLIZED IN THE FY 2005-06 RELEVANT TO ASSESSMENT YEAR 2006-07. FURTHER, PROV ISIONS OF SEC. 43B ARE ALSO NOT APPLICABLE SINCE THE SAME IS APPLICABLE ONLY IN RESPECT OF THE PAYMENT OF BONUS. HE, ACCORDINGLY DISALLOWED THE CLAIM OF EX PENDITURE OF RS. 18,88,948/- ON SALES INCENTIVES AND PERFORMANCE INCENTIVE. 3 BEFORE THE CIT(A), IT WAS SUBMITTED THAT THE ACCO UNTS OF THE COMPANY ARE REQUIRED TO BE MAINTAINED IN ACCORDANCE WITH S ECTION 209 OF THE COMPANIES ACT, WHICH REQUIRES IT TO MAINTAIN ACCOUNTS ON ACCR UAL BASIS. THE CONCEPT OF 3 ITA NO.430/MUM/2010 ACCRUAL IS DEFINED IN THE ACCOUNTING STANDARD-I. F URTHER, AS PER ACCRUAL BASIS OF ACCOUNTING METHOD, INCOME, EXPENSES, ASSETS AND LIA BILITIES ARE REFLECTED IN THE ACCOUNTS IN THE PERIOD IN WHICH THEY ACCRUE. IT W AS ALSO SUBMITTED THAT THE ASSESSEE HAS CONTRACTUAL OBLIGATION TO PAY SINCE IT IS MENTIONED IN THE APPOINTMENT LETTERS. APPRAISAL TAKES PLACE ON THE BASIS OF EARLIER YEAR AND INSTRUCTED TO EMPLOYEES VIA E-MAIL. THEREFORE, ASSE SSING OFFICER WAS NOT JUSTIFIED IN DISALLOWING THE LEGITIMATE EXPENDITURE THAT IS A CCRUED IN ASSESSMENT YEAR 2006-07. 3.1 HOWEVER, THE CIT(A) WAS NOT CONVINCED WITH THE EXPLANATIONS GIVEN BY THE ASSESSEE. ACCORDING TO HIM, CONTRACTUAL OBLIGA TION, WHICH IS BASED ON THE PERFORMANCE OF THE OFFICIAL CONCERNED, CAN BE QUANT IFIED ONLY AFTER ACHIEVING THE TARGET BY THE PERSON CONCERNED FIXED FOR THE YEAR. IN THE CASE OF THE ASSESSEE, THE OFFER LETTERS DO NOT PROVIDE FOR THE EXACT AMOU NT WHICH WAS TO BE PAID BY THE ASSESSEE TO ITS EMPLOYEES. HE NOTED THAT AN AMOUNT OF RS. 5,00,105/- OUT OF PROVISION FOR PERFORMANCE INCENTIVE AND RS. 8,58,48 3/- ON ACCOUNT OF SALES INCENTIVE HAVE BEEN REVERSED BY THE ASSESSEE WHIL E ACCOUNTING FOR THESE EXPENSES. THIS, ITSELF IS SUFFICIENT TO PROVE THAT THE LIABILITY ON ACCOUNT OF THESE EXPENSES DID NOT CRYSTALLISE DURING THE FINANCIAL Y EAR AND WAS IN THE NATURE OF CONTINGENT LIABILITY, WHICH DEPENDED UPON HAPPENIN G OF A PARTICULAR EVENT I.E ACHIEVEMENT OF TARGET IN THIS CASE. FURTHER, IT W AS CLAIMED BY THE ASSESSEE THAT IN CASE OF PERFORMANCE INCENTIVE, APPRAISAL OF PERF ORMANCE TAKES PLACE ON CALENDAR YEAR BASIS. THUS, THERE WILL ALWAYS REMA IN A GAP AND OVERLAPPING IN APPRAISAL AND QUANTIFICATION OF THE LIABILITY SINCE TWO SEPARATE PERIODS I.E ACCOUNTING YEAR AND FINANCIAL YEAR ARE BEING FOLLOW ED FOR APPRAISAL AND QUANTIFICATION OF THE PERFORMANCE INCENTIVE. HE N OTED THAT THE SUBMISSIONS OF 4 ITA NO.430/MUM/2010 THE ASSESSEE REGARDING THE PAYMENT ON ACCOUNT OF S ALES INCENTIVES THAT THESE ARE ANNOUNCED ON QUARTERLY BASIS AND COMMUNICATED TO ALL THE EMPLOYEES VIA E- MAIL, IS NOT SUPPORTED WITH ANY DOCUMENTARY EVIDE NCE. HE, THEREFORE WAS OF THE OPINION THAT THE LIABILITY TO PAY EXPENDITURE W ITH REFERENCE TO PERFORMANCE INCENTIVES AND SALES INCENTIVES DID NOT CRYSTALLISE DURING THE FINANCIAL YEAR; THEREFORE, THE ASSESSING OFFICER WAS JUSTIFIED IN D ENYING THE CLAIM. HE ACCORDINGLY UPHELD THE ORDER OF THE ASSESSING OFFIC ER. 4 THE LD COUNSEL FOR THE ASSESSEE, REFERRING TO PAG E 2 OF THE PAPER BOOK, DREW THE ATTENTION OF THE BENCH TO THE PROVISION F OR PERFORMANCE INCENTIVE IN THE CASE OF 7 EMPLOYEES AMOUNTING TO RS 1,179,403 /-. HE SUBMITTED THAT OUT OF THE ABOVE, AN AMOUNT OF RS. 6,79,298/- HAS BEEN P AID SUBSEQUENTLY UP TO THE DATE OF FILING OF RETURN AND AN AMOUNT OF RS. 5,00 ,105/- HAS BEEN OFFERED FOR TAXATION IN THE COMPUTATION STATEMENT. 4.1 REFERRING TO THE PROVISION FOR SALES INCENTIVE FOR THE PERIOD DEC 2005 TO MAR 2006 AMOUNTING TO RS. 2,068,133/-, HE SUBMIT TED THAT AN AMOUNT OF RS. 1,209,650/- HAS BEEN PAID SUBSEQUENTLY UPTO THE DAT E OF FILING OF RETURN AND THE BALANCE AMOUNTING TO RS. 8,58,483/- HAS BEEN OFFERE D TO TAX AS PER COMPUTATION STATEMENT, WHICH IS PLACED AT PAGE 1 OF THE PAPER B OOK. 4.2 REFERRING TO THE LETTER ADDRESSED TO MASOOD ALA M AND VARIOUS OTHER EMPLOYEES, COPIES OF WHICH ARE PLACED AT PAGS 9 TO 27 OF THE PAPER BOOK, HE SUBMITTED THAT ALTHOUGH THESE DETAILS WERE FILED BE FORE THE ASSESSING OFFICER; BUT 5 ITA NO.430/MUM/2010 THE ASSESSING OFFICER DID NOT CONSIDER THE SAME. HE SUBMITTED THAT THE ASSESSEE, BEING A COMPANY, FOLLOWS MERCANTILE SYSTEM OF ACCOU NTING. UNLESS DUE PROVISIONS ARE MADE FOR THE EXPENSES ON ACCRUAL BAS IS, THE TRUE PROFIT OF THE COMPANY CANNOT BE DETERMINED. 4.3 HE SUBMITTED THAT OUT OF THE TOTAL PROVISIONS O F RS.20,68,133/- TOWARDS PROVISION FOR SALES INCENTIVE AND RS. 11,79,403/- T OWARDS PROVISION FOR PERFORMANCE INCENTIVE, THE ACTUAL AMOUNT PAID AFTE R THE BALANCE SHEET DATE BUT BEFORE FILING OF THE RETURN HAS BEEN CLAIMED AS EXP ENDITURE AND THE BALANCE AMOUNT HAS BEEN OFFERED ITSELF FOR TAXATION. THEREF ORE, NO ADDITION SHOULD HAVE BEEN MADE. 4.4 THE LD DR, ON THE OTHER HAND, STRONGLY RELIED O N THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE ASSESSEE HAS FAILED TO PRODU CE THE DETAILS OF TERMS AND CONDITIONS OF EMPLOYMENT EITHER BEFORE THE ASSESSIN G OFFICER OR BEFORE THE CIT(A). THEREFORE, IT WAS NOT POSSIBLE ON THE PART OF THE REVENUE AUTHORITIES TO FIND OUT THE TERMS AND CONDITIONS IN THE APPOINTMEN T LETTER REGARDING THE ELIGIBILITY OF THE EMPLOYEES FOR THE PURPOSE OF PER FORMANCE INCENTIVE AND SALES INCENTIVE. HE, ACCORDINGLY, SUBMITTED THAT THE ORD ER OF THE CIT(A) SHOULD BE UPHELD. 5 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE PARTIES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THERE IS NO DISPU TE TO THE FACT THAT THE ASSESSEE 6 ITA NO.430/MUM/2010 IS A PRIVATE LIMITED COMPANY AND IS FOLLOWING MERCA NTILE SYSTEM OF ACCOUNTING. UNDER MERCANTILE SYSTEM OF ACCOUNTING, INCOME AND E XPENDITURE HAS TO BE RECOGNIZED ON ACTUAL BASIS. FROM THE COMPUTATION S TATEMENT AS WELL AS THE DETAILS OF PROVISION FOR PERFORMANCE INCENTIVE AND PROVISION FOR SALES INCENTIVE, WE FIND THAT OUT OF THE PROVISION FOR PERFORMANCE INCENTIVE OF RS.1,179,403/-, THE ASSESSEE HAS PAID AN AMOUNT OF RS. 6,79,298/- A FTER THE BALANCE SHEET DATE BUT BEFORE FILING OF THE RETURN AND HAS OFFERED RS . 5,00,105 FOR TAX IN THE COMPUTATION STATEMENT. SIMILARLY FROM THE PROVISION FOR SALES INCENTIVE OF RS. 2,068,133/-, THE ASSESSEE HAS PAID SUBSEQUENTLY UPTO THE DATE OF FILING OF THE RETURN AN AMOUNT OF RS. 1,209,650/- AND HAS O FFERED THE BALANCE AMOUNT OF RS. 8,58,483/- FOR TAX IN THE COMPUTATION SHEET. 5.1 IN OUR OPINION, THE METHOD OF ACCOUNTING FOLLOW ED BY THE ASSESSEE IS IN ORDER. WITHOUT MAKING PROVISIONS FOR PERFORMANCE I NCENTIVE AND SALES INCENTIVE, WHEN THE ASSESSEE COMPANY IS FOLLOWING MERCANTILE S YSTEM OF ACCOUNTING, THE TRUE PICTURE OF THE COMPANY CANNOT BE ASCERTAINED. SINCE IN THE INSTANT CASE, THE ASSESSEE HAS MADE PROVISIONS, A PART OF WHICH H AS ADMITTEDLY BEEN PAID SUBSEQUENTLY AND THE UNPAID PART HAS ALREADY BEEN O FFERED TO TAX IN THE IMPUGNED ASSESSMENT YEAR ITSELF; THEREFORE, THE BON AFIDE OF THE ASSESSEE IN MAKING THE PROVISION, IN OUR OPINION, SHOULD NOT H AVE BEEN DOUBTED. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE THE DISALLOWANCE. GROUN DS OF APPEAL NO.1 BY THE ASSESSEE, IS ACCORDINGLY ALLOWED. 6 GROUNDS OF APPEAL NO.2 READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND ALSO IN LAW, THE LD CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF EXPE NDITURE OF 7 ITA NO.430/MUM/2010 RS. 13,45,553/ OUT OF ADVERTISEMENT AND SALES PROMO TION EXPENSES HOLDING THAT THE LIABILITY WAS CONTINGENT AND IT DID NOT CR YSTALLIZE DURING THE RELEVANT PREVIOUS YEAR. THE LD CIT(A) FAILED TO APP RECIATE AND OUGHT TO HAVE HELD THAT THE ACCRUAL OF LIABILITY DOES NOT GE T POSTPONED FOR WANT OF QUANTIFICATION. YOUR APPELLANT, THEREFORE, PRAYS T AT AFORESAID DISALLOWANCE BE DELETED. 6.1 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE HAD MADE A PROVISION OF RS. 32,11,106/- TOWARDS THE PROVISIONS OF BILLS , YET TO RECEIVE TOWARDS ACTIVITY COMMITTED DURING THE FY 2005-06 RELEVANT TO ASSESSM ENT YEAR 2006-07. THE ASSESSEE, THEREAFTER RECEIVED BILLS OF RS. 18,65,57 3/-. THEREFORE, THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAS MADE EXCESS PROV ISION AT RS.13,45,553/-, WHICH, ACCORDING TO THE ASSESSEE WERE REVERSED IN T HE SUBSEQUENT YEAR. SINCE THE ASSESSEE HAS CLAIMED THE EXPENSES, WHICH WERE N EITHER ACCRUED NOR CRYSTALLIZED DURING THE YEAR, THE ASSESSING OFFICER DISALLOWED THE AMOUNT OF RS. 13,45,553/-. 6.2 IN APPEAL, THE CIT(A) CONFIRMED THE ADDITION MA DE BY THE ASSESSING OFFICER, FOR WHICH THE ASSESSEE IS IN APPEAL HERE B EFORE US. 7 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE PARTIES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THERE IS NO DISPUT E TO THE FACT THAT AS AGAINST THE PROVISIONS OF RS. 32,11,106/- TOWARDS THE PROVISION S OF BILLS YET TO BE RECEIVED TOWARDS ACTIVITY COMMITTED DURING THE YEAR, THE AS SESSEE COULD RECEIVE BILLS OF RS. 18,65,573/- ONLY. THEREFORE, THE ASSESSING OFFI CER HAS DISALLOWED AN AMOUNT OF RS. 13,45,553/-. IN OUR OPINION, UNLESS THE BILL IS RECEIVED FOR THE RELEVANT 8 ITA NO.430/MUM/2010 ASSESSMENT YEAR, NO LIABILITY CAN BE FASTENED ON T HE ASSESSEE. THE ASSESSEE COULD HAVE MADE THE CLAIM IN THE SUBSEQUENT YEAR WH EN SUCH BILL IS RECEIVED. THEREFORE, MERELY BECAUSE THE ASSESSEE HAS REVERSED THE ENTRY IN THE SUBSEQUENT YEAR; IN OUR OPINION, THE SAME IS NOT TH E PROPER ACCOUNTING METHOD. IF THE SYSTEM IS ALLOWED THEN ANY PERSON, WHO EARNS HUGE INCOME IN A PARTICULAR YEAR CAN INFLATE THE PROVISIONS FOR EXPENSES AND IN THE SUBSEQUENT YEAR WHEN THERE IS LESS INCOME OR LOSS, CAN REVERSE THE ENTRY . THIS, IN OUR OPINION, CANNOT BE PERMITTED. WE, THEREFORE, DO NOT FIND ANY INFIRMIT Y IN THE ORDER OF THE LD CIT(A)UPHOLDING THE ADDITION. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY DISMISSED. 8 GROUNDS OF APPEAL NO.3 READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LD CIT(A ERRED IN REJECTING THE APPELLANTS CONTENTION THAT THE SUM OF RS. 11,28,541/- THAT WAS CREDITED TO THE PROFIT & L OSS ACCOUNT ON REVERSAL OF THE EXCESS PROVISION FOR ADVERTISEMENT AND SALES PROMOTION EXPENSES MADE IN THE PRECEDING YEAR OUGHT NOT TO BE TAXED IN THE AY 2006-07 WHEN THE SAME WAS DISALLOWED IN THE AY 2005-06. YOU R APPELLANT THEREFORE, PRAYS THAT THE SUM OF RS. 11,28,541/- BE DEDUCTED FROM THE TOTAL INCOME OF THE APPELLANT FOR THE ASSESSMENT YE AR 2006-07. 9 AFTER HEARING BOTH THE PARTIES, WE FIND THE ASSE SSING OFFICER HAS NOT DISCUSSED THIS ISSUE IN THE ASSESSMENT ORDER. ONLY BEFORE THE CIT(A), IT WAS STATED BY THE ASSESSEE THAT DEDUCTION OF RS. 11,2 8,541/-, WHICH WAS DISALLOWED IN ASSESSMENT YEAR 2005-06, SHOULD HAVE BEEN ALLOWE D AS DEDUCTION IN THE CURRENT YEAR. WE FIND THE CIT(A) CONFIRMED THE AC TION OF THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSING OFFICER HAD MADE T HE DISALLOWANCE U/S 40(A)(IA) OF THE ACT FOR NON DEDUCTION OF TAX AT SOURCE BY THE ASSESSEE. 9 ITA NO.430/MUM/2010 10 AT THE TIME OF HEARING, IT WAS AGREED BY BOTH TH E PARTIES THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR HIS EXAMINATION TO FIND OUT IF ANY DOUBLE DISALLOWANCE HAS BEEN MADE. WE, THEREFORE, DEEM IT PROPER TO RESTORE THIS ISSUE BACK TO THE FILE OF TH E ASSESSING OFFICER WITH A DIRECTION TO FIND OUT IF THERE IS ANY DOUBLE DISALL OWANCE. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WIT H LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOL D AND DIRECT ACCORDINGLY. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWE D FOR STATISTICAL PURPOSE. 11 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THE 16 TH , DAY OF MAR 2011. SD/ - SD/- ( (( ( R V EASWAR R V EASWAR R V EASWAR R V EASWAR ) )) ) PRESIDENT ( (( ( R K PANDA R K PANDA R K PANDA R K PANDA ) )) ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 16 TH , MAR 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI