SIGMA LABORATORIES, MUMBAI V. DCIT 17(2), MUMBAI

ITA 4463/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75466 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 29-01-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 03-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income; Depreciation; Business expenditure; Unabsorbed depreciation

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F B ENCH, MUMBAI , , !' #$% , !& ! ' BEFORE SHRI VIJAY PAL RAO , JM AND SHRI N.K. BIL LAIYA, AM ./ I.T.A. NO. 4463/MUM/2013 ( ( ( ( ( / ASSESSMENT YEAR : 2009-10 M/S.SIGMA LABORATORIES, 43, SOUTH, R.A. KIDWAI ROAD, WADALA,MUMBAI-400 031 / VS. THE DCIT, 17(2), PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI ) !& ./ * ./ PAN/GIR NO. : AACFS 5124M ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . ! / APPELLANT BY: SHRI RAJESH ATHAVALE ,-)+ / . ! / RESPONDENT BY: SHRI RAVI PRAKASH / 01& / DATE OF HEARING : 05.02.2014 23( / 01& / DATE OF PRONOUNCEMENT: 07.02.2014 !4 / O R D E R PER N.K. BILLAIYA, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-29, MUMBAI DT.20.3.2013 PERTAINING TO A.Y. 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER : BEING AGGRIEVED BY THE ORDER PASSED UNDER SECTION 250 OF THE INCOME TAX ACT, 1961 BY THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS)-29, MUMBAI (HEREINAFTER REFERRED TO A S THE CIT(A)), YOUR APPELLANT SUBMITS THE FOLLOWING GROU NDS OF APPEAL FOR YOUR SYMPATHETIC CONSIDERATION: ITA NO. 4463/M/2013 2 1. THE LEARNED CIT(A) ERRED CONFIRMING THE ORDER OF THE DY. COMMISSIONER OF INCOME TAX, 17(2), MUMBAI (HEREINAF TER REFERRED TO AS THE DCIT) IN NOT RECOGNISING THE CONTINUITY OF BUSINESS ACTIVITY OF THE APPELLANT. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT WAS IN THE PROCESS O F SETTING UP MANUFACTURING FACILITIES IN AN EARLIER YEAR. IN FAC T, DURING THE YEAR, THE APPELLANT HAD ALSO EARNED INCOME FROM PROCESSIN G CHARGES. THE LEARNED CIT(A) ERRED IN NOT FOLLOWING THE ORDER PASSED BY THE HONBLE MUMBAI ITAT IN THE APPELLANTS OWN CASE FOR AY 2006-07 WHERE SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE AS SESSEE. 2. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTIO N OF THE DCIT IN BRINGING TO TAX THE INTEREST INCOME OF INR 348.98 LACS EARNED ON CERTAIN BONDS WHICH WERE BUSINESS ASSETS OF THE ASSESSEE AND AS SUCH INCOME FROM THE SAME WAS TO BE TREATED AS TAXABLE UNDER THE HEAD BUSINESS INCOME AS IN EARLIER YEARS. 3. THE LEARNED CIT(A) ERRED IN CONFIRMING THE ACTIO N OF THE DCIT IN BRINGING TO TAX THE JOB WORK CHARGES, EARNE D BY THE APPELLANT, UNDER THE HEAD INCOME FROM OTHER SOURCE S RATHER THAN UNDER INCOME FROM BUSINESS OR PROFESSION AND IN OVERLOOKING THE FACT THAT THE SAID JOB WORK ACTIVIT Y FORMS PART OF THE BUSINESS OF THE APPELLANT. 4. THE LEARNED CIT(A) FURTHER ERRED IN NOT ALLOWING SET OFF OF BROUGHT FORWARD BUSINESS LOSS / UNABSORBED DEPRECIA TION OF EARLIER YEAR. 5. THE CIT(A) ALSO ERRED IN HOLDING THAT, A. THE APPELLANT HAD NOT EARNED ANY INCOME FROM MANUFACTURING ACTIVITY. B. THE GOA PLANT WAS SET UP FOR THE APPELLANTS REL ATED CONCERN ONLY FOR CLAIMING EXPENSES AND IT WAS SHOWN AS BELONGING TO THE APPELLANT. 3. THE ENTIRE GRIEVANCE OF THE ASSESSEE REVOLVES AR OUND THE FACT THAT THE LOWER AUTHORITIES DID NOT ACCEPT THAT ASSESSEE CONTINUED TO DO ITS BUSINESS ACTIVITY AND THEREFORE OUGHT TO HAVE BEEN ALLOWED THE EXPENSES CLAIMED BY IT. ITA NO. 4463/M/2013 3 4. THE ASSESSEE IS A PARTNERSHIP FIRM WHICH CAME IN TO EXISTENCE FROM 26.3.1977. THE ASSESSEE IS ENGAGED IN PHARMACEUTIC AL BUSINESS IN THE FORM OF PURCHASING, MANUFACTURING, DISTRIBUTING, SE LLING ETC. DRUGS, CHEMICALS, PHARMACEUTICALS ETC OF ALL KINDS. IT IS THE CLAIM OF THE ASSESSEE THAT FROM 2005 TO 2008, THERE WAS LULL IN THE BUSIN ESS BUT THE BUSINESS WAS NEVER DISCONTINUED. THE MAIN CONTENTION OF THE ASSESSEE IS THAT IT HAS SET UP A MANUFACTURING PLANT AT GOA WHICH IS IN CON TINUATION OF ITS EXISTING BUSINESS ACTIVITY THEREFORE, IT CANNOT BE SAID THAT ASSESSEE IS OUT OF BUSINESS AND ACCORDINGLY ALL THE EXPENSES CLAIME D BY THE ASSESSEE FOR THE IMPUGNED YEAR SHOULD BE ALLOWED AS REVENUE EXPE NDITURE AND ACCORDINGLY LOSSES DESERVES TO BE ALLOWED TO BE CAR RIED OVER. IN SUPPORT OF ITS CLAIM, THE ASSESSEE RELIED UPON ITS APPLICAT ION FOR REGISTRATION WITH GOVERNMENT AUTHORITIES WHICH INCLUDED VAT REGISTRAT ION, REGISTRATION WITH CENTRAL EXCISE BOARD, SALES TAX REGISTRATION AND GO A STATE POLLUTION CONTROL BOARD REGISTRATION. THE ASSESSEE ALSO SUPP ORTED ITS CLAIM BY STATING THAT IT HAS ALSO BEEN REGISTERED WITH STAND ARD OF WEIGHT AND MEASURE AND FOOD AND DRUG ADMINISTRATION. IT IS THE CLAIM OF THE ASSESSEE THAT IT HAS SHOWN PROCESSING CHARGES TO THE TUNE OF RS. 1.25 LAKHS WHICH IS SUPPORTED BY EXCISE GATE PASS. IT IS ALSO THE CLAI M OF THE ASSESSEE THAT IT HAS SET UP A PLANT IN GOA DEDICATED FOR EXPORT WHIC H IS NOTHING BUT EXTENSION/CONTINUATION OF EXISTING BUSINESS. TO SU PPORT, THE ASSESSEE HAS SHOWN TRIAL RUN AT GOA PLANT. CONSIDERING ALL THE SE FACTS IN TOTALITY, EXPENSES INCURRED FOR THE BUSINESS TO THE TUNE OF R S. 3.72 CRORES DESERVES TO BE ALLOWED. 4.1. THE ASSESSEE HAS ALSO SHOWN INTEREST INCOME ON REC BONDS IN ADDITION TO PROCESSING CHARGES AND CLAIMED THAT INT EREST INCOME ON REC BONDS IS NOTHING BUT INCOME FROM BUSINESS AS REC BO NDS WERE PURCHASED ITA NO. 4463/M/2013 4 FOR THE PURPOSE OF BUSINESS. THE CONTENTION OF THE ASSESSEE WERE REJECTED BY THE LOWER AUTHORITIES ON THE GROUND THAT THE ASS ESSEE HAS RECEIVED PROCESSING CHARGES FROM ITS SISTER CONCERN WHICH AP PEAR TO BE NOT GENUINE BUSINESS ACTIVITY, NO ACTUAL MANUFACTURE/PRODUCTION HAS BEEN CARRIED OUT AND THERE WAS NO LULL IN THE BUSINESS. 5. LET US NOW CONSIDER THE CONDUCT OF THE ASSESSEE IN SO FAR AS ITS BUSINESS ACTIVITY TILL 2008 IS CONCERNED. SOMEWHER E IN THE YEAR 1997, THE MANUFACTURING DIVISION WAS HIVED OFF AND TRANFERRED TO A COMPANY M/S. SIGMA LABORATORIES PVT. LTD. WHICH WAS PROMOTED BY THE MEMBERS OF THE ASSESSEE FIRM. HOWEVER, THE ASSESSEE RETAINED THE OWNERSHIP OF THE TRADEMARKS OF VARIOUS PRODUCTS FROM WHICH IT EARNED ROYALTY INCOME AS PERCENTAGE TO SALES FOR THE USE OF THE TRADEMARKS B Y M/S. SIGMA LABORATORIES LTD. THUS, ROYALTY INCOME EARNED BECA ME THE BUSINESS INCOME OF THE ASSESSEE. IN THE YEAR 2004, THE ASSE SSEE SOLD ALL THE DOMESTIC RIGHTS OF THE TRADEMARKS TO M/S. MANEESH P HARMACEUTICALS PVT. LTD., CLAIMING THAT IT STILL HAS THE RIGHTS TO MANU FACTURE AND EXPORTS ALL OR ANY OF THE PRODUCTS. FROM THE SALE CONSIDERATION R ECEIVED, THE ASSESSEE INVESTED RS. 40 CRORES ON REC BONDS TO AVOID INCIDE NCE OF TAX. THE ASSESSEE CLAIMED THAT THIS INVESTMENT SHOULD BE TRE ATED AS BUSINESS ASSET AS IT HAS BEEN CREATED OUT OF BUSINESS REVENUES AND THEREFORE INTEREST RECEIVED FROM THESE BONDS HAS TO BE TAXED UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION. FROM 2004 TO 2008, THE ASS ESSEE CLAIMED THAT THERE WAS LULL IN BUSINESS BUT INFACT THE ASSESSEE HAD NOTHING TO DO IN THE BUSINESS EXCEPT EARNING ROYALTY AND INTEREST ON BON DS. 6. NOW LET US SEE THE CONDUCT OF THE ASSESSEE IN SO FAR AS SETTING UP OF PLANT IN GOA IS CONCERNED. VIDE AGREEMENT DT. 23 RD MAY, 2007, THE ASSESSEE TOOK THE BUILDING AND LAND APPURTENANT THE RETO FOR A PERIOD OF 10 ITA NO. 4463/M/2013 5 YEARS FROM M/S. SIGMA LABORATORIES LTD. THE ASSESS EE HAS CLAIMED THIS SETTING UP OF MANUFACTURING ACTIVITY AS CONTINUATIO N OF ITS EXISTING BUSINESS ACTIVITY FOR WHICH THE ASSESSEE INCURRED E XPENSES TO THE TUNE OF RS. 3.72 CRORES. THE ASSESSEE HAS ALSO CLAIMED DEP RECIATION OF RS. 153.05 LAKHS DURING THE FINANCIAL YEAR 2008-09 WHICH IS TH E YEAR UNDER CONSIDERATION. THE ENTIRE BUSINESS OF THE ASSESSEE WAS TRANSFERRED TO M/S. SIGMA LABORATORIES LTD. WITH EFFECT FROM 1.4.2009. THIS ACT OF THE ASSESSEE CLEARLY SHOW THAT IT WAS PRE-DECIDED THAT THE ASSESSEE WOULD INCUR ALL THE EXPENSES AND CLAIM DEPRECIATION AND T HEN TRANSFER THE ENTIRE BUSINESS TO ITS SISTER CONCERN M/S. SIGMA LABORATOR IES LTD., BECAUSE BY PREPONDERANCE OF PROBABILITIES SUCH CAPITAL DECISIO NS ARE NOT TAKEN OVERNIGHT. 6.1. FURTHER THE AGREEMENT OF TRANSFER OF BUSINESS WAS EXECUTED SOMEWHERE IN FEBRUARY, 2010 AND WAS GIVEN A RETROSP ECTIVE EFFECT FROM 1.4.2009. THERE IS NOTHING ON RECORD TO SHOW IN WH OSE BOOKS OF ACCOUNTS THE BUSINESS TRANSACTED BETWEEN 1.4.2009 TILL THE D ATE OF THE EXECUTION OF THE SALE OF BUSINESS WAS ENTERED. THE ASSESSEE HAS RECEIVED A NET CONSIDERATION OF RS. 6,21,70,019/- ON ACCOUNT OF IT S TRANSFER OF BUSINESS TO M/S. SIGMA LABORATORIES LTD. ALL THE ASSETS AND LIA BILITIES WERE TRANSFERRED AT THE BOOK VALUE. THESE FACTS CLEARLY SHOW THAT ASSESSEE NEVER DID ANY BUSINESS EXCEPT SPENDING/INCURRING EX PENSES FOR ITS GOA PLANT WHICH IT IMMEDIATELY SOLD AFTER THE CLOSE OF THE FINANCIAL YEAR. THE ASSESSEE HAS NEVER SHOWN INCOME FROM PROCESSING CHA RGES SINCE ITS INCEPTION. HOWEVER, DURING THE YEAR, THE ASSESSEE HAS SHOWN A MEAGER SUM OF RS. 1.25 LAKHS AS PROCESSING CHARGES AND EVE N THIS PROCESSING CHARGES HAVE BEEN RECEIVED FROM M/S. SIGMA LABORAT ORIES LTD. TO WHOM THE ASSESSEE HAS TRANSFERRED ITS ENTIRE BUSINESS. THE TEST OF HUMAN PROBABILITY AS LAID DOWN BY THE HONBLE SUPREME COU RT IN THE CASE OF ITA NO. 4463/M/2013 6 SUMATI DAYAL VS CIT 214 ITR 801 SQUARELY APPLY ON T HE ABOVE STATED FACTS. NO DOUBT, TAX PLANNING IS LEGITIMATE BUT TH IS CONDUCT OF THE ASSESSEE GOES BEYOND THAT. THE CONTENTION OF THE ASSESSEE THAT IT HAS MADE TRIAL RUN IN 2008 ITSELF DOES NOT HOLD ANY WA TER BECAUSE NEITHER THE ASSESSEE CLAIMED ANY DEPRECIATION DURING A.Y. 2008- 09 NOR THE ENTIRE EXPENDITURE INCURRED ON THE INSTALLATION OF PLANT A ND MACHINERY WERE BOOKED DURING THAT YEAR. MOST OF SUCH EXPENSES ARE FOUND TO BE INCURRED AFTER 30 TH SEPTEMBER, 2008. 6.2. SO FAR AS THE CONTENTION OF THE ASSESSEE, THER E WAS LULL IN BUSINESS. THIS ALSO CANNOT BE ACCEPTED BECAUSE IN 1997, THE A SSESSEE HAS CLOSED DOWN ITS MANUFACTURING DIVISION AND IN 2004 SOLD IT S ENTIRE RIGHTS OF TRADEMARKS. THE ONLY SOURCE OF INCOME WAS ROYALTY INCOME. THE REASON OF SLOW DOWN AND LULL IN THE BUSINESS DOES NOT EXI ST IN THE CASE OF THE ASSESSEE AND THAT TOO FOR SO MANY YEARS WHEN NOTHIN G HAS BEEN BROUGHT ON RECORD WHICH COULD SUGGEST THAT THE ASSESSEE WA S GENUINELY MAKING EFFORT TO DO THE BUSINESS. THE CONDUCT OF THE ASSE SSEE OF SELLING THE ENTIRE BUSINESS TO ITS SISTER CONCERN M/S. SIGMA LABORATO RIES LTD., ON THE VERY FIRST DAY OF NEXT FINANCIAL YEAR I.E. 1.4.2009 CLEA RLY SUGGEST THAT THE ASSESSEE INCURRING EXPENSES ON THE PRETEXT OF CARRY ING ON BUSINESS WAS MERELY A DEVICE TO AVOID TAX BY CLAIMING CARRY FOR WARD OF LOSSES AND BUSINESS EXPENSES WHICH COULD BE ALLOWED, IF THE BU SINESS WAS STILL CONTINUING WHICH IN THE INSTANT CASE, WE DO NOT FIN D THAT IT EVER CONTINUED. 6.3. THE ONE OTHER CLAIM OF THE ASSESSEE IS THAT IT HAS RETAINED THE RIGHT TO EXPORT. HOWEVER, FACTS ON RECORD SHOW THAT WHER E FROM THE ASSESSEE WILL DO THIS BUSINESS WHEN HE HAS SOLD THE ENTIRE B USINESS TO M/S. SIGMA LABORATORIES LTD. ONE MORE IMPORTANT FACTOR TO BE CONSIDERED HERE IS THAT ITA NO. 4463/M/2013 7 THE ASSESSEE HAS TAKEN THE BUILDING AND THE LAND A PPURTENANT FROM M/S. SIGMA LABORATORIES LTD. ONLY FOR A PERIOD OF 10 YE ARS AND THAT TOO BY AN UNREGISTERED DEED. IT GOES AGAINST THE COMMERCIAL PRODUCE OF SANITY WHERE IN A BUSINESSMAN WOULD SPEND 3.72 CRORES IN A YEAR AND INSTALL PLANT AND MACHINERY ON A LAND ONLY FOR 10 YEARS THA T TOO BY AN UNREGISTERED DEED. SUCH CONDUCT OF THE ASSESSEE CL EARLY SHOW THAT THE ENTIRE BUSINESS ACTIVITY IN THE DISGUISE OF EARNING PROCESSING CHARGES IS NOTHING BUT AN EYE WASH. THE ASSESSEE HAS DURING T HE COURSE OF HEARING RELIED UPON SEVERAL JUDICIAL DECISIONS WHICH HAVE B EEN CONSIDERED BY US BUT WE FAILED TO PERSUADE OURSELVES TO RELY ON TH OSE DECISIONS IN FAVOUR OF THE ASSESSEE BECAUSE OF THE CONDUCT OF THE ASSES SEE AS EXPLAINED HEREINABOVE CLEARLY DISTINGUISHABLE ON THE FACTS . 7. THE LD. CIT(A) HAS WELL APPRECIATED THE ABOVE ST ATED FACTS. THE LD. CIT(A) HAS ALSO GIVEN VERY SOUND REASONS FOR NO T ACCEPTING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 20 06-07. THE FINDINGS OF THE LD. CIT(A) IN THIS MATTER READ AS UNDER : THE JUDGEMENT WERE RENDERED BY THE HONBLE ITAT IN THE CASE OF THE APPELLANT FOR THE A.Y.2006-07. IT IS NO TICED THAT THE FACTS AS EXISTING IN F.Y.2005-06 ARE DIFFERENT FROM THE F ACTS WHICH ARE EXISTING IN THE RELEVANT F.Y. I.E. F.Y.2008-09. FOL LOWING ARE SOME IMPORTANT OBSERVATIONS IN THIS REGARD: I) THE APPELLANT HAS NOT INCURRED EXPENSES AMOUNTIN G TO RS.3,72,43,8551- ON ACCOUNT OF MAINTAINING OLD B USINESS ESTABLISHMENT. THESE EXPENSES WERE INCURRED SUPPOSE DLY FOR A NEW LINE OF BUSINESS FROM WHICH NO INCOME WAS EAR NED BY THE APPELLANT EITHER DURING THE RELEVANT PREVIOUS Y EAR OR EVEN IN FUTURE YEARS. WHEN APPELLANT HAS NEVER EARN ED ANY INCOME FROM THE ACTIVITY ON WHICH EXPENSES WERE INC URRED, THE SAME CANNOT BE ALLOWED IN CASE OF APPELLANT. II) IT IS NOT A CASE WHERE THERE WAS A SLOWDOWN IN THE BUSINESS. IN F.Y.2004-05 APPELLANT EARNED ONLY ROY ALTY ITA NO. 4463/M/2013 8 INCOME. IN SUBSEQUENT YEARS I.E. FROM F.Y.2005-06 TILL F.Y.2008-09 NEITHER ANY REGULAR BUSINESS ACTIVITY H AS BEEN CARRIED OUT BY THE APPELLANT NOR ANY BUSINESS INCOM E IS EARNED. THE REASON OF SLOW DOWN OR LULL IN THE BUSI NESS DOES NOT EXIST IN THE CASE OF APPELLANT AND IN ANY CASE SUCH A REASON CANNOT BE A VALID GROUND FOR SEVERAL YEARS. III) THE TOTAL EXPENSES CLAIMED IN A.Y.2006 07 WERE AMOUNTING TO RS.12,27,516/-, OUT OF WHICH THERE WER E PROFESSIONAL CHARGES OF RS.6,00,000/- AND INTEREST PAID TO PARTNERS WAS OF RS.4,56,583/-. THUS ONLY EXPENSES O F RS. 1,70,983/- WERE RELATED TO ESTABLISHMENT/OFFICE EXP ENSE. AS AGAINST THIS, IN A.Y.2009-10 APPELLANT HAS CLAIMED HUGE EXPENSES OF RS.3,72,43,855/- UNDER VARIOUS HEADS LI KE MAN POWER EXPENSES, FACTORY AND LABORATORY EXPENSES, EL ECTRICITY CHARGES, POWER AND FUEL, REPAIRS AND MAINTENANCE ET C. AGAINST THESE EXPENSES, THE INCOME SHOWN BY THE APP ELLANT IS ONLY PROCESSING CHARGES OF RS. 1,24,366/-. IV) MOST IMPORTANTLY, THE APPELLANT CLAIMED TO HAVE SOLD ITS ENTIRE MANUFACTURING BUSINESS TO ONE OF IT S RELATED CONCERN NAMED SIGMA LABORATORIES LTD. ON W.E.F. 01- 04- 2009. THE EXPENSES OF RS.3,72,43,855/- HAVE BEEN CL AIMED BY THE APPELLANT FOR F.Y.2008-09 AND IMMEDIATELY TH EREAFTER THE ENTIRE BUSINESS WAS TRANSFERRED BY THE APPELLAN T TO ITS RELATED CONCERN. THIS MEANS THAT THE BUSINESS WAS CLOSED IMMEDIATELY AFTER THE RELEVANT PREVIOUS YEAR AS FAR AS THE CASE OF THE APPELLANT IS CONCERNED. THIS IS A VERY IMPORTANT FACT THAT DISTINGUISHES THE CASE OF THE APPELLANT F ROM M/S. MOKUL FINANCE PVT. LTD. FURTHER, IT IS HELD BY HONBLE SUPREME COURT IN THE CASE OF M.M. IPOH V. CIT (1968) 67 ITR 106 (SC) THAT FACTS OF EACH YEAR ARE ONLY IMPORTANT IN ORDER TO DECIDE THE INCOME OF THAT YEAR. THE RELEVANT PORTION IS QUOTED AS UNDER: THE DOCTRINE OF RES JUDICATA DOES NOT APPLY SO AS TO MAKE A DECISION ON A QUESTION OF FACT OR LAW IN A P ROCEEDING FOR ASSESSMENT IN ONE YEAR BINDING IN ANOTHER YEAR. THE ASSESSMENT AND THE FACTS FOUND ARE CONCLUSIVE ONLY IN THE YEAR OF ASSESSMENT; THE FINDINGS ON QUESTIONS OF FA CT MAY BE GOOD AND COGENT EVIDENCE IN SUBSEQUENT YEARS, WHEN THE ITA NO. 4463/M/2013 9 SAME QUESTION FALLS TO BE DETERMINED IN ANOTHER YEA R, BUT THEY ARE NOT BINDING AND CONCLUSIVE IN VIEW OF ALL THE ABOVE OBSERVATIONS, IT IS HELD T HAT THE JUDGEMENT OF HONBLE ITAT, MUMBAI, RENDERED IN THE CASE OF THE APPELLANT FOR A.Y.2006-07, IS NOT APPLICABLE TO THE RELEVANT A.Y. 2009-10 AS THE FACTS OF BOTH THE YEARS ARE COMPLETE LY DISTINGUISHABLE. WE, THEREFORE, DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). GROUND NO. 1 AND 5 ARE ACCORDIN GLY DISMISSED. 8. FOR THE REASONS DISCUSSED HEREINABOVE, WE ALSO D O NOT FIND ANY INFIRMITY IN THE FINDINGS OF THE LD. CIT(A) THAT JO B WORK CHARGES (PROCESSING CHARGES) AND INTEREST INCOME EARNED FRO M BONDS BY THE ASSESSEE IS TO BE TAXED UNDER THE HEAD INCOME FROM OTHER SOURCES, AS WE HAVE HELD THAT NO BUSINESS ACTIVITY HAS BEEN CAR RIED OUT, THE LD. CIT(A) HAS VERY RIGHTLY REJECTED THE CLAIM OF SET OFF OF BROUGHT FORWARD BUSINESS LOSSES/UNABSORBED DEPRECIATION OF EARLIER YEAR. GROUND NO. 2 TO 4 ARE ACCORDINGLY DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH FEBRUARY, 2014 . !4 / 3( &! 5 6 7 07.02.2014 3 / 8 SD/- SD/- (VIJAY PAL RAO ) (N.K. BILLAIYA) /JUDICIAL MEMBER !& / ACCOUNTANT MEMBER MUMBAI; 6 DATED 07.02.2014 . . ./ RJ , SR. PS ITA NO. 4463/M/2013 10 !4 !4 !4 !4 / // / ,0 ,0 ,0 ,0 9! 9! 9! 9!(0 (0(0 (0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. : ( ) / THE CIT(A)- 4. : / CIT 5. ;8 ,0 , , / DR, ITAT, MUMBAI 6. 8< / GUARD FILE. !4 !4 !4 !4 / BY ORDER, -0 ,0 //TRUE COPY// = == = / > > > > (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI