DCIT, New Delhi V. M/s. Nortel Networks India (P) Ltd., New Delhi

ITA 4561/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3603 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 07-07-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 13-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Assessee Lawyers: SSH SALIL KAPOOR
• Keywords: Rectification of order; Audit objection; Tangible material; Difference of opinion; Assessment record; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `E: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T. A. NO.4561/DEL/2010 ASSESSMENT YEAR : 2002-03 DY. COMMISSIONER OF INCOME-TAX, M/S. NORTEL NETWORK S INDIA PVT. LTD., CIRCLE-13(1), NEW DELHI. VS. C-22, GROUND FLOOR NE AR GARDEN OF FIVE SENSES, WESTERN MARG, PARYAVARAN COMPLEX, NEW DELHI. PAN: AABCN1424B (APPELLANT) (RESPONDENT) APPELLANT BY: MRS. ANUSHA KHURANA, SR. DR. RESPONDENT BY: S/SH. SALIL KAPOOR & SANAT KAPOOR, ADVOCATE. O R D E R PER C.L. SETHI, JUDICIAL MEMBER: THE REVENUE IS IN APPEAL AGAINST THE ORDER DATED 2 0.07.2010 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN THE MATTER OF AN ASSESSMENT MADE UNDER SEC. 143(3) READ WITH SECTION 147 OF THE INCOME-TAX ACT, 1961 (THE ACT) FOR THE ASSESSMENT YEAR 2002-03 . 2. GROUND NO.1 RAISED BY THE REVENUE IS AGAINST THE CIT(A)S ORDER IN HOLDING THE NOTICE ISSUED UNDER SEC. 148 AS VOID AB INITIO. 3. THE ASSESSEE COMPANY IS A WHOLLY OWNED SUBSIDIAR Y OF NORTEL NETWORKS, MAURITIUS LTD. AND WAS INCORPORATED IN IN DIA ON 25.7.1996 UNDER 2 THE COMPANIES ACT, 1956. THE ASSESSEE IS ENGAGED I N THE BUSINESS OF INSTALLATION AND COMMISSIONING OF TELECOM NETWORK I N INDIA. THE ASSESSEE COMPANY ALSO PROVIDES MARKETING SUPPORTS SERVICES T O OVERSEAS COMPANIES OF NORTEL GROUP. 4. THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 31.3.2004 DECLARING TAXABLE INCOME AT RS.1,50,38,770/-. THER EAFTER, THE AO PASSED AN ASSESSMENT ORDER U/S 143(3) OF THE ACT DATED 28.3.2 005 DETERMINING THE ASSESSEES TOTAL INCOME AT RS.2,58,74,700/- AFTER D ISALLOWING FOREIGN EXCHANGE FLUCTUATION LOSS AND PROVISION FOR EXPENSE S. AGAINST THE ORIGINAL ASSESSMENT ORDER, THE ASSESSEE FILED AN APPEAL BEFO RE THE LEARNED CIT(A), WHO VIDE HIS ORDER DATED 12.01.2007, DECIDED THE AS SESSEES APPEAL IN ITS FAVOUR AND ALLOWED THE PROVISION FOR EXPENSES SUBJE CT TO VERIFICATION OF SUPPORTING BILLS AND VOUCHERS. 5. SUBSEQUENTLY, AFTER LAPSE OF MORE THAN FOUR YEAR S FROM THE END OF THE RELEVANT ASSESSMENT YEAR, THE AO ISSUED NOTICE U/S 148 OF THE ACT ON 30.03.2009 ALLEGING THAT CERTAIN INCOME HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. THE ASSESSEE RE QUESTED THE AO TO PROVIDE REASONS ON THE BASIS OF WHICH THE IMPUGNED ASSESSMENT HAS BEEN REOPENED AND A NOTICE U/S 148 HAS BEEN ISSUED. THE REASONS FOR REOPENING THE ASSESSMENT UNDER SEC. 147 AS PROVIDED BY THE AO ARE AS UNDER:- 3 ON VERIFICATION OF THE ASSESSMENT RECORD FOR THE A .Y. 2002-03, FOLLOWING MISTAKES WERE POINTED OUT:- THE ASSESSEE HAD MADE PROVISION OF RS.9,333,099 FOR VARIOUS EXPENSES, WHICH HAVE BEEN DULY ADDED BACK BY THE AS SESSING OFFICER IN THE DECLARED TO TOTAL INCOME BEING PROVI SION. SIMILARLY, THE PROVISION OF RS.4,996,379 IN RESPECT OF SERVICE CHARGES, WAS ALSO FOUND DEBITED IN THE PROFIT & LOS S ACCOUNT UNDER THE HEAD INFORMATION AND TECHNOLOGY SERVICES BUT THE SAME WAS NOT FOUND ADDED BACK TO THE TOTAL INCOME W HEREAS THE SAME WAS ALSO REQUIRED TO BE ADDED BACK TO THE TOTA L INCOME. IN VIEW OF THE FACTS NARRATED ABOVE, THERE IS FAILU RE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MAT ERIAL FACTS NECESSARY FOR HIS ASSESSMENT AND I HAVE REASON TO B ELIEVE THAT THE INCOME OF THE ASSESSEE TO THE EXTENT OF RS.4,99 6.379 APPROX, HAS ESCAPED ASSESSMENT FOR WHICH ACTION U/S 147 OF THE INCOME TAX ACT IS TO BE INITIATED IN THE YEAR UNDER CONSID ERATION I.E. A.Y. 2002-03. 6. HAVING RECEIVED THE COPY OF REASONS FROM THE AO, THE ASSESSEE FILED ITS OBJECTION AGAINST THE NOTICE ISSUED UNDER SEC. 148 VIDE ITS LETTER DATED 2.06.2009 STATING THAT SINCE ALL THE PRIMARY FACTS WERE ALREADY ON RECORD, THE REASONS PROVIDED INDICATED A MERE CHANGE OF OPINION AND CANNOT BE MADE BASIS TO INITIATE REASSESSMENT PROCEEDINGS. IN THI S RESPECT, RELIANCE WAS PLACED UPON SEVERAL DECISIONS. THE OBJECTIONS FILE D BY THE ASSESSEE WERE DISPOSED OF BY THE AO BY AN ORDER IN WRITING DATED 28.08.2009, AND, THEREAFTER THE AO PROCEEDED WITH THE ASSESSMENT PRO CEEDINGS AND COMPLETED THE ASSESSMENT UNDER SEC. 143(3)/147 OF THE ACT VID E ORDER DATED 11.12.2009 4 WHERE THE PROVISION OF ALLEGED UNASCERTAINED LIABIL ITY AMOUNTING TO RS.49,96,379/- WAS DISALLOWED. 7. BEING AGGRIEVED, THE ASSESSEE PREFERRED AN APPEA L BEFORE THE LEARNED CIT(A). 8. AFTER CONSIDERING THE ASSESSEES SUBMISSIONS AND THE FACTS OF THE PRESENT CASE, THE LEARNED CIT(A) HELD THAT THE ISSU E OF NOTICE UNDER SEC. 148 WAS NOT IN LINE WITH THE STATUTORY PROVISIONS AND H E, THEREFORE, HELD THE SAME AS VOID AB INITIO. SINCE THE ASSESSMENT WAS DECLAR ED TO BE VOID AB INITIO BY THE LEARNED CIT(A), THE LEARNED CIT(A) DID NOT ENTE R INTO THE MERIT OF THE ISSUE AS TO WHETHER THE ADDITION OF RS.49,96,379/- ON ACCOUNT OF DISALLOWANCE OF PROVISION FOR SERVICE CHARGES WAS J USTIFIED. THE OPERATING PORTION OF LEARNED CIT(A)S ORDER IS AS UNDER:- 2.4 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT COMPANY. AFTER PERUSING THE ASSESSMENT RECORDS, IT IS OBSERVED THA T IN THE ORIGINAL ASSESSMENT ORDER DATED 28-03-2005, THE ASS ESSING OFFICER MADE AN ADDITION OF RS.93,34,099/- ON ACCOU NT OF PROVISIONS FOR EXPENSES. MY LEARNED PREDECESSOR IN AN APPELLATE ORDER DATED 12-01-2007 IN A.NO.30/05-06 H AD AGREED WITH THE LEGAL POSITION WITH REGARD TO ALLOWABILITY OF PROVISION OF EXPENSES AND DIRECTED THE ASSESSING OFFICER TO A LLOW THE PROVISION OF EXPENSES BUT SUBJECT TO THE VERIFICATI ON OF BILLS AND VOUCHERS. IT IS FURTHER NOTICED THAT REVENUE AUDIT RAISED AN OBJECTION VIDE AUDIT MEMO NO.116 DATED 19-05-2007 A S UNDER:- AUDIT SCRUTINY REVEALED THAT THE ASSESSEE HAD MADE THE PROVISION OF RS.49,96,379/- IN RESPECT OF PROVISION OF SERVICES CHARGES WHICH HAS DEBITED 5 INTO P&L ACCOUNT UNDER THE HEAD INFORMATION & TECHNOLOGY SERVICES. THE ASSESSING OFFICER HAD ADDED BACK THE PROVISION OF RS.93,34,099/- WAS MADE FOR VARIOUS EXPENSES AND STATED THAT THE INVOICES OF THESE PROVISIONS WERE RECEIVED LATER BU T THE PROVISION FOR SERVICE CHARGES HAS NOT ADDED BACK BY THE ASSESSING OFFICER ALTHOUGH THE INVOICE OF THIS AMOUNT WAS ALSO RECEIVED LATER. THEREFORE, THE AMOUNT OF RS.49,96,379/- SHOULD HAVE BEEN ADDED BACK TO THE INCOME OF THE ASSESSEE. THE MISTAKE RESULTED UNDER ASSESSMENT OF INCOME OF RS.49,96,379/- WITH CONSEQUENT SHORT LEVY OF TAX OF RS.25,01,649/- (INCLUDING INTEREST) IN RESPONSE TO THIS AUDIT OBJECTION, THE ASSESSING OFFICER, IN A LETTER DATED 21-11-2007 ADDRESSED TO CIT-V, NEW DEL HI INTIMATED NON ACCEPTANCE OF THE AUDIT OBJECTION BUT I DO AGREE WITH THE LD. AR OF THE APPELLANT COMPANY THAT IF AL L THE PARTICULARS ARE DULY SHOWN IN THE RETURN OF INCOME FILED AND THERE IS NO FRESH INFORMATION IN POSSESSION OF THE ASSESSING OFFICER ON THE BASIS OF WHICH RE-ASSESSMENT PROCEED ING CAN BE INITIATED, NOTICE U/S 148 CANNOT BE ISSUED ESPECIAL LY WHEN FOUR YEARS HAVE ELAPSED FROM THE END OF THE ASSESSMENT Y EAR CONCERNED. AS PER FIRST PROVISO TO SECTION 147, IT IS CLEARLY LAID DOWN THAT WHERE AN ASSESSMENT U/S 143(3) OR U/S 147 /148 HAD BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO RE-A SSESSMENT PROCEEDINGS CAN BE UNDERTAKEN AFTER THE EXPIRY OF F OUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLES S ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH A SSESSMENT YEAR BY REASONS OF THE FAILURE ON THE PART OF THE A SSESSEE TO DISCLOSE FULLY OR TRULY ALL MATERIAL FACTS. IN THI S CASE, THE ASSESSMENT YEAR INVOLVED IS A.Y. 2002-03 AND THE FO UR YEAR ENDS ON 31-03-2007 AND THERE IS NO FAILURE ON THE P ART OF THE APPELLANT TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS AND HENCE, ISSUE OF NOTICE U/S 148 ON 30.03.2009 WAS NO T AS PER THE STATUTORY PROVISIONS OF LAW. REFERENCE CAN BE MADE TO THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. (SUPRA) WHERE T HE HONBLE SUPREME COURT HAD DISCUSSED THE ISSUE OF VALIDITY O F RE- ASSESSMENT PROCEEDINGS AND IT HAS HELD THAT EVEN AF TER AMENDMENT OF SECTION 147 W.E.F. 01-04-1989, THE ASS ESSING 6 OFFICER CAN RE-OPEN AN ASSESSMENT ONLY ON THE BASIS OF SOME TANGIBLE MATERIAL TO FORM REASON TO BELIEVE THAT IN COME HAD ESCAPED ASSESSMENT. A MERE CHANGE OF OPINION COULD NOT BE A VALID GROUND FOR ISSUING A NOTICE UNDER SECTION 148 OF THE ACT. HERE ALSO, IT IS A CASE OF CHANGE OF OPINION ESPECI ALLY WHEN THE ORIGINAL ASSESSMENT HAD BEEN FRAMED U/S 143(3) AND THEREAFTER, ON THE SAME ISSUE, THE ASSESSING OFFICER INITIATED 154 PROCEEDINGS VIDE NOTICE DATED 17.07.2006 PROPOSING THEREIN ADDITION OF RS.49,96,379/- ON ACCOUNT OF PROVISION FOR SERVICE CHARGES DEBITED TO PROFIT AND LOSS ACCOUNT AND THE INVOICE OF WHICH WAS RECEIVED ON 30.06.2006. THE ASSESSMENT F OLDER CONFIRMED THAT IN RESPONSE THERETO, THE APPELLANT F ILED REPLY ON 03.08.2006, 01.09.2006 AND 15.09.2006 AND SEEMINGLY NO RECTIFICATION ORDER U/S 154 HAD BEEN PASSED BY THE ASSESSING OFFICER GIVING THE SEMBLANCE OF HAVING AGREED TO TH E APPELLANTS VIEW POINT. IN VIEW OF ABOVE, MY CONSIDERED OPINIO N IS THAT ISSUE OF NOTICE U/S 148 HAD BEEN ISSUED WHICH IS NO T IN LINE WITH THE STATUTORY PROVISIONS AND HENCE, THE SAME IS TAK EN AS VOID AB INITIO. CONSEQUENT TO THIS, THERE IS NO REQUIREMEN T TO DISCUSS AND ADJUDICATE GROUND NO.2, 3 AND 4. 9. HENCE, THE DEPARTMENT IS IN APPEAL BEFORE US. 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. 11. IT IS NOT IN DISPUTE THAT ORIGINALLY THE ASSESS MENT WAS COMPLETED UNDER SEC. 143(3) OF THE ACT VIDE ORDER DATED 28.03.2005. IN THE ORIGINAL ASSESSMENT, THE PROVISION FOR VARIOUS EXPENSES AMOU NTING TO RS.93,34,099/- WAS DISALLOWED BY THE AO. DURING THE ORIGINAL ASSE SSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO GIVE A MONTH-WISE BREAK-UP OF ITS COST OF SERVICES ALONG WITH THE DETAILS OF THE SAME FOR THE MONTH OF MARCH, 2002. ON VERIFICATION OF ALL THE DETAILS, IT WAS NOTICED BY THE AO THAT THE ASSESSEE HAD DEBITED AN AMOUNT OF RS.93,34,099/- ON ACCOUNT OF P ROVISIONS MADE FOR 7 VARIOUS EXPENSES. THE ASSESSEE WAS ASKED TO JUSTIF Y THE ALLOWABILITY OF THESE PROVISIONS AND THE MATTER WAS DISCUSSED AND DELIBER ATED UPON AND FINALLY THE ASSESSING OFFICER HAD TAKEN A VIEW THAT THE PROVISI ON FOR EXPENSES WAS NOT ALLOWABLE AS A DEDUCTION AND ADDED THE SAME TO THE ASSESSEES TOTAL INCOME. THE ISSUE REGARDING PROVISION FOR EXPENSES OF RS.93 ,34,099/- WAS CARRIED IN APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME-TA X(APPEALS), WHO VIDE ORDER DATED 12-01-2007 DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE WITH CERTAIN DIRECTIONS. 12. IN THE MEANTIME, THE ASSESSING OFFICER HAD ISSU ED NOTICE DATED 17-07- 2006 U/S 154/155 PROPOSING THEREIN THE ADDITION OF RS.49,96,379/- ON ACCOUNT OF PROVISION FOR SERVICE CHARGES DEBITED TO THE PROFIT & LOSS ACCOUNT, IN RESPECT OF WHICH THE INVOICE WAS RECEIV ED BY THE ASSESSEE ON 30.06.2002. IN REPLY DATED 03-08-2006 TO THE NOTICE UNDER SEC. 154 OF THE ACT, THE ASSESSEE SUBMITTED THAT SERVICES CHARGES O F RS.49,96,379/- WERE BOOKED FOR SERVICES RENDERED BY COMPUTER SCIENCE CO RPORATION INDIA PVT. LTD. (CSC) TO THE ASSESSEE FROM JANUARY TO MARCH, 2 002 AND CONSOLIDATED INVOICE OF WHICH WAS RAISED VIDE INVOICE DATED 30.0 6.2002. THE REPLY WAS NOT CONSIDERED BY THE ASSESSING OFFICER TO BE SATIS FACTORY BY OBSERVING THAT THE ASSESSEE HAS NOT SUBMITTED ANY EVIDENCE INCLUDI NG THE COPY OF AGREEMENT, PAYMENT PROOF ETC. WHICH COULD CLEARLY E STABLISH THAT THE SAME 8 WAS AN ASCERTAINED LIABILITY. THE ASSESSING OFFICE R THEN PROVIDED FURTHER OPPORTUNITY VIDE LETTER DATED 8.08.2006 TO FURNISH RELEVANT EVIDENCES. HOWEVER, NO ORDER UNDER SEC. 154 SEEMS TO HAVE BEEN PASSED BY THE ASSESSING OFFICER AS SO OBSERVED BY THE LEARNED COM MISSIONER OF INCOME- TAX (APPEALS) IN HIS ORDER. 13. FROM THE REASONS RECORDED BY THE AO, IT IS CLEA R THAT ON VERIFICATION OF THE ASSESSMENT RECORDS, IT WAS FOUND BY THE AO THAT PROVISION OF RS.49,96,379/- IN RESPECT OF SERVICE CHARGES WAS AL SO DEBITED IN THE PROFIT & LOSS ACCOUNT UNDER THE HEAD INFORMATION AND TECHNO LOGY SERVICES. THIS GOES TO PROVE THAT THE DETAILS OF PROVISION OF RS.4 9,96,379/- IN RESPECT OF SERVICE CHARGES DEBITED IN THE PROFIT AND LOSS ACCO UNT UNDER THE HEAD INFORMATION & TECHNOLOGY SERVICES WAS FURNISHED D URING THE ORIGINAL ASSESSMENT PROCEEDINGS. IN THE REASONS RECORDED, I T HAS NOWHERE BEEN ESTABLISHED BY THE AO THAT THERE WAS A FAILURE ON T HE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS RELATIN G TO THE CLAIM OF DEDUCTION ON ACCOUNT OF PROVISION OF SERVICE CHARGES. AS PER PROVISO TO SEC. 147 OF THE ACT, IT IS CLEAR THAT WHERE AN ASSESSMENT U/S 143(3 ) OR U/S 147 HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO RE-ASSESSMENT PROCEEDINGS CAN BE UNDERTAKEN AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT 9 FOR SUCH ASSESSMENT YEAR BY REASONS OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS OR F AILURE ON THE PART OF THE ASSESSEE TO FILE THE RETURN OF INCOME REQUIRED U/S 139 OR 142 OF THE ACT. IN THIS CASE, THE DETAILS ABOUT THE PROVISION OF RS.49 ,96,379/- IN RESPECT OF PROVISION OF SERVICE CHARGES DEBITED IN THE PROFIT & LOSS ACCOUNT WAS AVAILABLE WITH THE AO AND ON THE BASIS OF THOSE DET AILS, THE AUDIT PARTY RAISED AN OBJECTIONS VIDE AUDIT MEMO NO.116 DATED 19.5.200 7. IN REPLY TO THE AUDIT OBJECTION, THE AO IN HIS LETTER DATED 21.11.2007 AD DRESSED TO THE CIT-IV, NEW DELHI, DID NOT ACCEPT THE AUDIT OBJECTION. IT IS, THUS, CLEAR THAT THERE WAS A DIFFERENCE OF OPINION BETWEEN THE AO AND THE AUDI T PARTY ON THE ALLOWABILITY OF DEDUCTION ON ACCOUNT OF PROVISION O F RS.49,96,379/- IN RESPECT OF SERVICE CHARGES AND THE FACT REMAINS THA T THE DETAILS WERE ALREADY AVAILABLE IN THE ASSESSMENT RECORD, ON THE BASIS OF WHICH, THE AUDIT PARTY RAISED OBJECTION, WHICH WAS NOT ACCEPTED BY THE AO. THEREAFTER, THE AO INITIATED PROCEEDINGS UNDER SEC. 147 OF THE ACT, WH ICH, IN OUR CONSIDERED OPINION, IS BARRED BY LIMITATION WITHIN THE MEANING OF FIRST PROVISO TO SECTION 147 OF THE ACT INASMUCH AS IT IS NOT ESTABL ISHED BY THE AO THAT THE ASSESSEE HAS FAILED TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS RELATING TO THE CLAIM OF PROVISION OF RS.49,96,379/- IN RESPECT OF SERVICE CHARGES. IN THE LIGHT OF THE DISCUSSIONS MADE ABOVE, WE, THEREFORE, UPHOLD THE ORDER OF THE 10 LEARNED CIT(A) IN ANNULLING THE ASSESSMENT AS VOID AB INITIO FOR WANT OF VALID JURISDICTION U/S 147. 14. IN THE GROUNDS OF APPEAL, THE REVENUE HAS RELIE D UPON THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS. P.V.S. BE EDIES PVT. LTD., 237 ITR 13. WE HAVE GONE THROUGH THIS JUDGMENT AND FIN D THAT IN THIS CASE, IT HAS BEEN HELD THAT REOPENING OF CASE ON THE BASIS O F FACTUAL ERROR POINTED OUT BY THE INTERNAL AUDIT PARTY IS PERMISSIBLE IN LAW. HOWEVER, IN THE PRESENT CASE, NO FACTUAL ERROR HAS BEEN POINTED OUT BY THE INTERNAL AUDIT PARTY BUT THE AUDIT PARTY HAS GIVEN ITS OPINION ABOUT THE ALLOWAB ILITY OF PROVISION OF SERVICE CHARGES. MOREOVER, THIS DECISION WAS RENDE RED IN THE LIGHT OF THEN PROVISIONS CONTAINED IN SEC. 147(B) OF THE ACT AND NOT IN THE LIGHT OF THE PRESENT FIRST PROVISO TO SEC. 147 OF THE ACT. WE, THEREFORE, HOLD RELIANCE ON THIS DECISION BY THE REVENUE IS MISPLACED. 15. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 16. THIS DECISION IS PRONOUNCED IN THE OPEN COURT O N 15 TH JULY, 2011. SD/- SD/- (SHAMIM YAHYA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15 TH JULY, 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 11 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.