Mr Harsh Dhir, New Delhi V. ITO, New Delhi

ITA 4940/DEL/2012

• Counselvise Citation: 494020114 RSA 2012
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 13-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 18-09-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: A L SEHGAL
• Keywords: Deemed dividend

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH C CC C : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG, JUDICIAL , JUDICIAL , JUDICIAL , JUDICIAL MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO. .. .4940/DEL/2012 4940/DEL/2012 4940/DEL/2012 4940/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2009 2009 2009 2009- -- -10 1010 10 SHRI HARSH DHIR, SHRI HARSH DHIR, SHRI HARSH DHIR, SHRI HARSH DHIR, 14, NAVJEEVAN VIHAR, 14, NAVJEEVAN VIHAR, 14, NAVJEEVAN VIHAR, 14, NAVJEEVAN VIHAR, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN PAN PAN PAN : ADMPD0596P. : ADMPD0596P. : ADMPD0596P. : ADMPD0596P. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -10(3), 10(3), 10(3), 10(3), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.L. SEHGAL, CA. RESPONDENT BY : SHRI SATPAL SINGH, SR.DR. ORDER ORDER ORDER ORDER PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP PER G.D. AGRAWAL, VP : :: : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED CIT(A)-XIII, NEW DELHI DATED 20 TH JULY, 2012 FOR THE AY 2009-10. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THIS APPEAL. HOWEVER, THEY ARE ALL AGAINST THE ADDITION OF `45,3 6,024/- MADE UNDER SECTION 2(22)(E) OF THE INCOME TAX ACT, 1961 AS DEE MED DIVIDEND. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D PERUSED RELEVANT MATERIAL PLACED BEFORE US. THE ASSESSEE I S A SHAREHOLDER OF M/S DHIR INTERNATIONAL PVT.LTD. (DIPL) HAVING SUBST ANTIAL INTEREST OF MORE THAN 20%. AS PER ASSESSING OFFICER, DURING TH E ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION , THE ASSESSEE RECEIVED FOLLOWING ADVANCES FROM M/S DHIR INTERNATI ONAL PVT.LTD.:- ON 05.01.2009 RS.3,00,000/- (IN ACCOUNT OF PROPRIE TARY CONCERN OF THE ASSESSEE, M/S ROOTS) ON 01.04.2008 RS.11,024/- (IN THE ACCOUNT OF P ROPRIETARY CONCERN OF ITA-4940/DEL/2012 2 THE ASSESSEE, M/S ROOTS) ON 23.04.2008 RS.1,00,000/- (LOAN ACCOUNT OF THE ASSESSEE) ON 19.11.2008 RS.6,50,000/- (LOAN ACCOUNT OF THE ASSESSEE) ON 16.02.2009 RS.14,50,000/- (LOAN ACCOUNT OF THE ASSESSEE) ON 16.02.2009 RS.10,50,000/- (LOAN ACCOUNT OF THE ASSESSEE) ON 04.03.2009 RS.9,75,000/- (LOAN ACCOUNT OF THE ASSESSEE) --------------------- TOTAL RS.45,36,024/- --------------------- HE, THEREFORE, TREATED THE SUM OF `45,36,024/- AS D EEMED DIVIDEND UNDER SECTION 2(22)(E) IN THE HANDS OF THE ASSESSEE . 4. AT THE TIME OF HEARING BEFORE US, THE LEARNED CO UNSEL FOR THE ASSESSEE CONTENDED THAT NONE OF THE ABOVE AMOUNTS R ECEIVED BY THE ASSESSEE IS IN THE NATURE OF LOAN OR ADVANCE WHICH MAY BE TREATED AS DEEMED DIVIDEND UNDER SECTION 2(22)(E). WE WILL EX AMINE THE ASSESSEES CONTENTION IN RESPECT OF EACH AND EVERY ALLEGED LOAN/ADVANCE. 5. `3,00,000/- AND `11,024/- ARE DEBITED BY DIPL TO THE ACCOUNT OF THE ASSESSEE UNDER THE NAME AND STYLE ROOTS, A PR OPRIETORSHIP CONCERN OF THE ASSESSEE. THE SAME READS AS UNDER:- DATE PARTICULARS VCH TYPE VCH NO. DEBIT C REDIT 1-4-2008 CR OPENING BALANCE 35,56,505.45 1-4-2008 CR KAMAL K.JAIN & CO. JOURNAL 11,024.00 BEING AUDIT FEE PROVISION FOR THE YEAR 2006-07 14-11-2008 DR KBL-1099 RECEIPT 852 3,00,000 BEING AMT RECD FROM ROOTS 5-1-2009 CR KBL-1099 PAYMENT 4160 3,00,000.00 ITA-4940/DEL/2012 3 CH.NO.408723 BEING AMT PAID AG ON A/C ------------------------------------------- ----- 38,67,529.45 3,00,000 DR CLOSING BALANCE 35,67,529 ------------------------------------------- ------ 38,67,529.45 38,67,529 ------------------------------------------- ------ 6. FROM THE ABOVE, WE FIND THAT THE FIRST DEBIT TO THE ACCOUNT OF THE ASSESSEE IS FOR `11,024/- WHICH IS FOR THE PROVISIO N FOR AUDIT FEE. IT WAS EXPLAINED THAT THE AUDITOR OF THE COMPANY AND PROPR IETORSHIP BUSINESS OF THE ASSESSEE IS SAME AND IN RESPECT OF HIS PROFE SSIONAL FEE FOR THE GROUP, THE PROVISION AND PAYMENT IS MADE BY DIPL AN D THEREFORE, THEY HAVE DEBITED THE AUDIT FEE PERTAINING TO THE ASSESS EE TO THE ACCOUNT OF THE ASSESSEE. CONSIDERING THESE FACTS, IN OUR OPIN ION, THE PAYMENT OF AUDIT FEE BY DIPL AND RECOVERY THEREOF FROM THE ASS ESSEE CANNOT BE TREATED TO BE DEEMED DIVIDEND WITHIN THE MEANING OF SECTION 2(22)(E). IN RESPECT OF ANOTHER TRANSACTION OF `3 LAKHS, WE F IND THAT THE ASSESSEE MADE THE PAYMENT OF `3 LAKHS ON 14.11.2008 AND THER EAFTER ON 5.1.2009, THERE WAS A PAYMENT BY DIPL. IT WAS CONT ENDED BY THE LEARNED DR THAT THERE WAS AN OPENING DEBIT BALANCE OF MORE THAN `35 LAKHS IN THE HANDS OF THE ASSESSEE AND THE PAYMENT OF `3 LAKHS MADE BY THE ASSESSEE WAS TOWARDS THE REPAYMENT OF THE EA RLIER ADVANCE AND THEREFORE, THE PAYMENT OF `3 LAKHS BY DIPL TO THE A SSESSEE ON 5.1.2009 IS CERTAINLY IN THE NATURE OF LOAN AND ADVANCE. TH EREFORE, THE ASSESSING OFFICER RIGHTLY APPLIED SECTION 2(22)(E) THEREON. THE SAME SHOULD BE SUSTAINED. 7. WE ARE UNABLE TO ACCEPT THE ABOVE CONTENTION OF THE LEARNED DR BECAUSE FIRSTLY, EVERY ASSESSMENT YEAR IS INDEPENDE NT AND FOR THE PURPOSE OF VERIFYING WHETHER ANY LOAN OR ADVANCE IS GIVEN DURING THE YEAR UNDER CONSIDERATION BY THE COMPANY TO THE SHAR EHOLDER, TRANSACTIONS OF THE CURRENT YEAR ONLY ARE TO BE LOO KED INTO. SECONDLY, ITA-4940/DEL/2012 4 WHATEVER IS THE DEBIT BALANCE OUGHT TO HAVE BEEN CO NSIDERED IN THE PRECEDING YEAR FOR THE PURPOSE OF APPLICABILITY OF SECTION 2(22)(E) AND IF THE SAME AMOUNT IS ADJUSTED AGAINST THE TRANSACT ION OF THE YEAR UNDER CONSIDERATION, THEN, THERE WOULD BE POSSIBLY DOUBLE TAXATION UNDER SECTION 2(22)(E). TO ELABORATE, IF WE SEE TH E ACCOUNTS OF THE ROOTS IN THE BOOKS OF DIPL, THE OPENING DEBIT BALAN CE IS `35,56,505/- WHICH OUGHT TO HAVE BEEN CONSIDERED FOR THE APPLICA BILITY OF SECTION 2(22)(E) IN THE RESPECTIVE YEARS IN WHICH ADVANCE W AS GIVEN. IF WE SEE THE CLOSING BALANCE, IT IS ONLY `35,67,529/-. THUS , THE VARIATION IS ONLY ON ACCOUNT OF DEBIT OF AUDIT FEE OF `11,024/- WHICH HAS BEEN SEPARATELY CONSIDERED BY US. EXCEPT THIS DEBIT OF AUDIT FEE, THERE IS NO VARIATION BETWEEN THE OPENING BALANCE AND THE CLOSING BALANCE . IF THE SUM OF `3 LAKHS IS CONSIDERED AS DEEMED DIVIDEND, THEN, DESPI TE THE TOTAL DEBIT BALANCE OF ONLY `35,56,505/-, THE AMOUNT WHICH WOUL D BE CONSIDERED FOR SECTION 2(22)(E) WOULD BE `38,56,505/- (`35,56, 505 IN EARLIER YEARS AND `3,00,000 IN THE YEAR UNDER CONSIDERATION) WHIC H CANNOT BE THE INTENTION OF THE LEGISLATURE. WE MAY ALSO CLARIFY THAT EVEN IF THE DEPARTMENT HAS FAILED TO TAX THE ADVANCE GIVEN BY D IPL TO THE ASSESSEE IN THE EARLIER YEAR UNDER SECTION 2(22)(E) THAT MAY NOT CHANGE THE LEGAL PRINCIPLE. THE ADVANCE GIVEN IN T HE RESPECTIVE YEAR WAS CHARGEABLE IF OTHER CONDITIONS ARE SATISFIED AS DEEMED DIVIDEND UNDER SECTION 2(22)(E). IN VIEW OF THE ABOVE, WE H OLD THAT THE AMOUNT GIVEN BY DIPL TO THE ASSESSEE ON 5.1.2009 WAS ONLY THE REPAYMENT OF AMOUNT GIVEN BY THE ASSESSEE EARLIER I.E. ON 14.11. 2008. 8. NOW, WE COME TO DEBIT BALANCE OF `1 LAKH. THIS ACCOUNT IN THE BOOKS OF DIPL IS IN THE NAME OF THE ASSESSEE AND WH ICH READS AS UNDER:- DATE PARTICULARS VCH TYPE VCH NO. DEBIT C REDIT 1-4-2008 CR OPENING BALANCE 2,76,85,098.0 0 23-4-2008 CR STATE BANK OF INDIA-10886408472 PAYMEN T 576 1,00,000.00 ITA-4940/DEL/2012 5 CH.NO.395872 BEING AMT PAID TO HARSH DHIR 4-7-2008 DR AMEX CARD 3769 321131 51005 JOURNAL 84,615.00 BEING AMT PAID BY HARSH DHIR PERSONAL A/C OF KBL 826 VIDE CH NO 710283 DT 04.07.08 PLATINUM CARD -3769 321131 511005 22-7-2008 DR STATE BANK OF INDIA-10886408472 RECE IPT 430 2,00,000.00 CH.NO.736009 BEING CHEQUE RECD FROM HARSH DHIR 3-8-2008 DR STATE BANK OF INDIA-10886408472 RECE IPT 453 4,50,000.00 CH.NO.736811 BEING CH RECD FROM HARSH DHIR 10-8-2008 DR KBL-1099 RECEIPT 469 2,00,0 00.00 23-8-2008 DR HSBC 5548 5199 9831 6217 JOURNAL 10,405.00 BEING PAYMENT MADE BY HARSH DHIR ON BEHALF OF THE COMPANY THROUGH CH NO.710287 SHILPI DHIR HSBC CARD NO. 6217 DR HSBC 4384-5937-0617-3483 JOURNAL 20,22 8.00 BEING PAYMENT MADE BY HARSH DHIR ON BEHALF OF THE COMPANY THROUGH CH NO 710288 FOR SHILPI DHIR HSBC CARD NO 3483 6-9-2008 DR STATE BANK OF INDIA-10886408472 RECEI PT 564 4,00,000.00 BEING CH 736016 RECD FROM HARSH DHIR 10-9-2008 DR STATE BANK OF INDIA-10886408472 RECEIPT 576 8,50,000.00 BEING CH 736017 RECD FROM HARSH DHIR 11-10-2008 DR STATE BANK OF INDIA-10886408472 REC EIPT 719 8,00,000.00 BEING CH RECD FROM HARSH DHIR 8-11-2008 DR KBL-1099 RECEIPT 829 8,50,0 00.00 BEING AMT TRF FROM HARSH DHIR ITA-4940/DEL/2012 6 18-11-2008 KBL-1099 RECEIPT 864 7,00,000. 00 BEING AMT RECD FROM HARSH DHIR 19-11-2008 CR STATE BANK OF INDIA-10886408472 PAYM ENT 3486 6,50,000.00 CH.NO. 396028 BEING AMT PAID AG ON A/C 25-11-2008 DR AMEX CARD 3769 321131 51005 JOURNA L 8,400.00 BEING PAYMENT MADE BY HARSH DHIR ON BEHALF OF THE COMPANY THROUGH CH NO 736021 FOR HARSH DHIR AMEX CARD NO 51005 DR AMEX CARD 3769 163453 03005 JOURNAL 5,1 00.00 BEING PAYMENT MADE BY HARSH DHIR ON BEHALF OF THE COMPANY THROUGH CH NO 736022 FOR HARSH DHIR AMEX CARD NO 03005 29-11-2008 DR HSBC 4384-5937-0617-3483 JOURNAL 5 ,228.00 BEING PAYMENT MADE BY HARSH DHIR ON BEHALF OF THE COMPANY THROUGH CH NO 736024 FOR SHILPI DHIR HSBC CARD NO 6041 5-1-2009 DR KBL-1099 RECEIPT 1018 7,50,000. 00 BEING CH 544241 RECEIVED FROM HARSH DHIR 4-3-2009 DR (AS PER DETAILS) RECEIPT 1266 10 ,00,000.00 KBL-1099 9,97,000.00 DR BANK CHARGES 3,000.00 DR BEING CH 544251 RECEIVED FROM HARSH DHIR CR STATE BANK OF INDIA-10886408472 PAYMENT 54 59 9,75,000.00 CH NO.396094 BEING AMT PAID AG ON A/C ------------------------------------------- ---- 2,94,10,098.00 63,39,535.00 DR CLOSING BALANCE 2,30,70,563.00 ------------------------------------------- ---- 2,94,10,098.00 2,94,10,098.00 ITA-4940/DEL/2012 7 9. THE SUM OF `1 LAKH WAS PAID BY DIPL TO THE ASSES SEE ON 23 RD APRIL, 2008. DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION, THERE WAS NO PAYMENT MADE BY T HE ASSESSEE TO DIPL BEFORE THIS DATE. THEREFORE, THE SUM OF `1 LA KH PAID BY DIPL TO THE ASSESSEE ON 23 RD APRIL, 2008 IS IN THE NATURE OF LOAN AND ADVANCE CHARGEABLE AS DEEMED DIVIDEND UNDER SECTION 2(22)(E ). THE OTHER SUM OF `6,50,000/- WAS PAID BY DIPL TO THE ASSESSEE ON 19.11.2008. HOWEVER, BEFORE THE ABOVE DATE, DURING THE ACCOUNTI NG YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION, THE PAY MENT MADE BY THE ASSESSEE TO DIPL WAS MUCH MORE. THE SUM OF `7 LAKH S WAS PAID BY THE ASSESSEE TO DIPL JUST A DAY EARLIER I.E. 18.11.2008 . THEREFORE, FOR THE DETAILED DISCUSSION IN THE EARLIER PARAGRAPHS, IN O UR OPINION, THE SUM OF `6,50,000/- CANNOT BE TREATED AS LOAN AND ADVANCE W ITHIN THE MEANING OF SECTION 2(22)(E). ANOTHER SUM PAID BY DIPL TO T HE ASSESSEE IS `9,75,000/-. WE FIND THAT ON THE SAME DATE I.E. 4 TH MARCH, 2008, THERE IS A PAYMENT BY THE ASSESSEE OF `10 LAKHS TO DIPL. THEREFORE, IN OUR OPINION, THE SUM OF `9,75,000/- ALSO CANNOT BE TREA TED AS LOAN AND ADVANCE WITHIN THE MEANING OF SECTION 2(22)(E). 10. THE REMAINING TWO AMOUNTS I.E. `14,50,000/- AND `10,50,000/- ARE DEBITED TO ANOTHER ACCOUNT TITLED AS HARSH DHIR LOAN ACCOUNT IN THE BOOKS OF DIPL, WHICH IS ANNEXED HEREWITH AS ANNEXUR E A ANNEXURE A ANNEXURE A ANNEXURE A . HOWEVER, AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTED BY T HE LEARNED COUNSEL THAT THE TITLE OF THE ACCOUNT IS FACTUALLY INCORREC T AND, IN FACT, ALL THE TRANSACTIONS NOTED IN THIS ACCOUNT ARE IN RESPECT O F CHEQUE DISCOUNTING BY THE ASSESSEE THROUGH DIPL. THAT THE DIPL HAD A FACILITY OF DISCOUNTING OF CHEQUE WITH THE BANK, THEREFORE, THE ASSESSEE ISSUED CHEQUE IN THE NAME OF DIPL AND THEY PAID THE SIMILA R AMOUNT TO THE ASSESSEE AND GOT THE CHEQUE DISCOUNTED THROUGH BANK . HE POINTED OUT THAT FOR EACH AND EVERY TRANSACTION, THERE IS A CON TRA ENTRY IMMEDIATELY WITHIN A FEW DAYS AND ALMOST EVERY TIME , THE PAYMENT ITA-4940/DEL/2012 8 MADE BY THE ASSESSEE IS EARLIER OR ON THE SAME DAY. EXCEPT IN TWO CASES WHEREIN THE ASSESSEE PAID THE CHEQUE OF `25 L AKHS WHICH WAS REPAID BY THEM BY TWO CHEQUES OF `14,50,000/- AND ` 10,50,000/-, THERE IS A DELAY OF ONE DAY AND THAT IS PROBABLY BECAUSE THAT DIPL DELAYED THE DEPOSIT OF THE ASSESSEES CHEQUE WITH THEIR BAN K. ON A PERUSAL OF THIS ACCOUNT, WE FOUND THE CONTENTION OF THE ASSESS EE TO BE CORRECT. FOR EACH AND EVERY TRANSACTION, THERE IS A CONTRA E NTRY ALMOST SIMULTANEOUSLY. IN MOST OF THE CASES, THE CHEQUE P AID BY THE ASSESSEE IS A DAY EARLIER THAN THE CHEQUE RECEIVED FROM DIPL . HOWEVER, IN RESPECT OF `25 LAKHS ONLY, WE FIND THAT THE SUM OF `25 LAKHS IS CREDITED TO THE ACCOUNT OF THE ASSESSEE ON 17.2.2009 AND THE PAYMENT OF `25 LAKHS I.E. BY TWO CHEQUES OF `14,50,000/- AND `10,5 0,000/- IS DEBITED TO ASSESSEES ACCOUNT ON 16.2.2009. CONSIDERING THESE FACTS, WE AGREE WITH THE ASSESSEES CONTENTION THAT THE CHEQUE WAS GIVEN BY THE ASSESSEE SIMULTANEOUSLY AND IT IS ONLY A DELAY OF D EPOSIT OF THAT CHEQUE BY ONE DAY BY DIPL. CONSIDERING THE TOTALIT Y OF THE FACTS AND THE ARGUMENTS OF BOTH THE SIDES, IN OUR OPINION, TH E SUM OF `14,50,000/- AND `10,50,000/- CANNOT BE TREATED TO BE IN THE NATURE OF LOAN AND ADVANCE SO AS TO TREAT THE SAME AS DEEMED DIVIDEND WITHIN THE MEANING OF SECTION 2(22)(E). 11. IN VIEW OF THE ABOVE, IN OUR OPINION, ONLY A SU M OF `1 LAKH IS LIABLE TO BE TAXED AS DEEMED DIVIDEND. ACCORDINGLY , THE ADDITION OF `45,36,024/- IS REDUCED TO `1,00,000/-. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER, 2014. SD/- SD/- ( (( (CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG CHANDRA MOHAN GARG) )) ) (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL (G.D. AGRAWAL) )) ) JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 21.10.2014 VK. ITA-4940/DEL/2012 9 COPY FORWARDED TO: - 1. APPELLANT : S SS SHRI HARSH DHIR, HRI HARSH DHIR, HRI HARSH DHIR, HRI HARSH DHIR, 14, NAVJEEVAN VIHAR, NEW DELHI. 14, NAVJEEVAN VIHAR, NEW DELHI. 14, NAVJEEVAN VIHAR, NEW DELHI. 14, NAVJEEVAN VIHAR, NEW DELHI. 2. RESPONDENT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -10(3), NEW DELHI. 10(3), NEW DELHI. 10(3), NEW DELHI. 10(3), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR ./..ANNEXURE- A.. ITA-4940/DEL/2012 10 ITA-4940/DEL/2012 11