SUN TAN TARADING COMPANY LTD, MUMBAI V. DCIT 1(3), MUMBAI

ITA 5087/MUM/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3527 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 20-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Keywords: Capital receipt; Commercial expediency
• Section: 43B; 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI JASON P. BOAZ ACCOUNTANT MEMBER AND SHRI RAMLAL NEGI, JUDICIAL MEMBER ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) SUN TAN TRADING COMPANY LIMITED, MUMBAI, C/O. GIINERS & PRESSERS LTD., ORIENTAL HOUSE, 5 TH FLOOR, 7, TATA ROAD, CHURCHGATE, MUMBAI 400 020 PAN:AACCS 2091L ... APPELLANT VS. THE DY. COMMISSIONER OF INCOME TAX 1(3), AAYKAR BHAVAN, MK ROAD, MUMBAI 400 020 .... RESPONDENT APPELLANT BY : S/SHRI J.D.MISTRY/MADHUR AGA RWAL/ KETAN VED RESPONDENT BY : SHRI MANJUNATHA SWAMY DATE OF HEARING : 06/01/2016 DATE OF PRONOUNCEMENT : 29/02/2016 ORDER PER JASON P. BOAZ, A.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(APPEALS)-3, MUMBAI DATED 30/09/2015 FOR ASSESSM ENT YEAR 2011- 12. 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER:- 2.1 THE ASSESSEE COMPANY, ENGAGED IN THE BUSINESS O F TRADING IN FOREIGN MADE FOREIGN LIQUORS, PIGMENTS AND PAINTING S (ART WORK) FILED 2 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 30/09/2011. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE IN COME TAX ACT, 1961 (IN SHORT THE ACT) AND THE CASE WAS SUBSEQUENTLY TAKEN UP FOR SCRUTINY. IN THE COURSE OF ASSESSMENT PROCEEDING, THE ASSESSI NG OFFICER (AO) NOTICED THAT ASSESSEE HAD RECEIVED RS.62.50 CRORES FROM DIAGEO BRANDS B.V NETHERLANDS WHICH WAS DISCLOSED BY THE ASSESSEE AS REIMBURSEMENT RECEIVED WITH A NOTE 12 (II)(F) TO SCHEDULE-17 OF FINANCIAL STATEMENTS.. THE ASSESSING OFFICER OBSER VED THAT THE ASSESSEE HAD ENTERED INTO A DISTRIBUTION AGREEMENT ON 30/07/ 2001 FOR IMPORT OF ALCOHOLIC BEVERAGES FROM DIAGEO B.V. NETHERLANDS, IN ACCORDANCE WITH WHICH THE ASSESSEE CONTINUED TO IMPORT BEVERAGES TI LL THE PERIOD RELEVANT TO ASSESSMENT YEAR 2010-11. IN NOV.2009, THE DIRECTORATE OF REVENUE INTELLIGENCE (DRI) INVESTIGATED THE IMPOR TS MADE BY THE ASSESSEE, IN RESPECT OF THE IMPORT VALUE DECLARED B EFORE THE CUSTOMS DEPARTMENT, FOR THE PERIOD NOVEMBER,2004 TO NOVEMBE R, 2009. THE ASSESSEE AND DIAGEO B.V., NETHERLANDS ENTERED INTO AN INDEMNITY AGREEMENT DATED 7/4/2010, WHEREBY THE ASSESSEE WAS TO RECEIVE REIMBURSEMENT OF AMOUNTS PAID / TO BE PAID TO THE C USTOMS DEPT. THE ASSESSEE WAS REQUIRED TO DEPOSIT RS.62,50,00,000/- AS ADVANCE TOWARDS LIABILITY LIKELY TO ARISE UNDER THE CUSTOMS ACT, 19 61. AS PER THE DRIS SHOW CAUSE NOTICE DATED 30/03/2011, THE ADDITIONAL CUSTOMS DUTY LIABILITY WAS WORKED OUT AT RS.58,04,28,000/-. 2.2 THE ASSESSEE PREFERRED AN APPLICATION IN THIS R EGARD BEFORE THE CUSTOMS & CENTRAL EXCISE SETTLEMENT COMMISSION AND VIDE THEIR ORDER DATED 9/2/2012 THE FOLLOWING DEMANDS/ LIABILITIES W ERE DRAWN UP AGAINST THE ASSESSEE:- 3 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) (I) ADDL. CUSTOMS DUTY - RS. 58,04,28,400/ - (II) INTEREST - RS. 16,18,89,193/- (III) FINE FOR REDEMPTION OF SEIZED GOODS - RS. 1 ,20,00,000/- (IV) PENALTY RS. 25,00,000/- TOTAL - RS.75,68,17,593/- =============== THE AFORESAID AMOUNT WAS PAID ON 14/03/2012 WHICH FALLS IN THE SUBSEQUENT YEAR, PERTAINING TO ASSESSMENT YEAR 2012 -2013. 2.4 BY VIRTUE OF THE INDEMNITY AGREEMENT, IN THE YE AR UNDER CONSIDERATION THE ASSESSEE HAD RECEIVED FROM DIAGEO HOLDINGS B.V., NETHERLANDS AN AMOUNT OF RS.62,50,00,000/- AS REIMB URSEMENT OF DEPOSIT MADE TO THE CUSTOMS DEPT. IN THE COURSE O F ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ISSUED A SHOW CAU SE NOTICE TO THE ASSESSEE, AS TO WHY THIS AMOUNT OF RS.62,50,00,000/ - RECEIVED FROM DIAGEO HOLDINGS B.V, NETHERLANDS SHOULD NOT BE BROU GHT TO TAX IN THE ASSESSEES HANDS IN THIS YEAR. THE ASSESSEE SUBMI TTED THAT THE CUSTOMS DUTY LIABILITY GOT CRYSTALLIZED ONLY IN THE PERIOD RELEVANT TO ASSESSMENT YEAR 2012-13 PURSUANT TO THE ORDER OF THE CUSTOMS & CENTRAL EXCISE SETTLEMENT COMMISSION ORDER DATED 9/2/2012 AND FOR WHICH IT MADE THE PAYMENT ON 14/03/2012. THE SAME BEING OFFERED FOR TAX IN ASSESSMENT YEAR 2012-13, IT CANNOT BE TAXED AGAIN I N ASSESSMENT YEAR 2011-12. THE ASSESSING OFFICER AFTER CONSIDERING THE ASSESSEES EXPLANATION WAS OF THE VIEW AND HELD THAT THIS AMOU NT OF RS.62.50 CRORES WAS EXIGIBLE TO TAX IN THE ASSESSEES HANDS FOR THE REASONS THAT, THE LIABILITY TO CUSTOMS DEPT. IS OF THE IMPORTER A ND NOT DIAGEO HOLDINGS B.V, NETHERLANDS AND THAT IT IS A TRADING RECEIPT. THE ASSESSMENT WAS 4 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) FINALLY CONCLUDED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 28/03/2014, WHEREIN THE ASSESSEES INCOME WAS DETER MINED AT RS.61,79,86,690/- IN VIEW OF THE FOLLOWING ADDITION AL DISALLOWANCES:- (I) PAYMENT RECEIVED FROM DIAGEO HOLDINGS B.V, NET HERLANDS - RS.62,50,00,000/- (II) DISALLOWANCE UNDER SECTION14A - R S. 1,69,786/- 2.5 AGGRIEVED BY THE ORDER OF ASSESSMENT FOR ASSESS MENT YEAR 2011- 12 DATED 28/03/2014, THE ASSESSEE PREFERRED AN APPE AL BEFORE THE CIT(APPEALS) -3, MUMBAI. THE CIT(APPEALS) DISMISSE D THE ASSESSEES APPEAL VIDE ORDER DATED 30/09/2015 3.1 AGGRIEVED BY THE ORDER OF THE CIT(APPEALS) -3, MUMBAI DATED 30/09/2015 FOR ASSESSMENT YEAR 2011-12, THE ASSESSE E HAS PREFERRED THIS APPEAL RASING THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT (A) ERRED IN ASSESSING THE TOTAL IN COME OF THE APPELLANT AT RS.61,79,86,690/- INSTEAD OF LOSS OF RS. 71,83,096/ - CLAIMED IN THE RETURN OF INCOME. 2. THE LEARNED CIT (A) ERRED IN HOLDING THAT THE INDEM NITY PROCEEDS AMOUNTING TO RS. 62,50,00,000/- RECEIVED TOWARDS CUSTOM DUTY (DISCLOSED AS LOANS AND ADVANCES) IS A TAXABLE RECEIPT FOR THE AY 2011-12 INSTEAD OF AY 2012-13. 3. THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THE FA CT THAT THE APPELLANT HAS ALREADY OFFERED THE INDEMNITY PROCEEDS TO TAX IN TH E ASSESSMENT YEAR 2012- 13, AS THE LIABILITY CRYSTALLIZED ONLY IN THAT YEAR . 4. WITHOUT PREJUDICE TO GROUND 2 AND 3 ABOVE, THE LEAR NED CIT(A) ERRED IN NOT ALLOWING THE DEDUCTION OF CUSTOM DUTY PAID OF RS. 6 2,50,00,000/- IN ACCORDANCE WITH THE PROVISIONS OF SECTION 43D OF TH E ACT. 5. THE LEARNED CIT(A) ERRED IN CONFIRMING THE LEVY OF INTEREST UNDER SECTION 234B AND 234D OF THE ACT AMOUNTING TO RS. 7,24,22,568/- AND RS. 5,93,106/- RESPECTIVELY. 5 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) 3.2.1 VIDE LETTER DATED 27/11/2015, THE ASSESSEE HA S PREFERRED TO RAISE THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL:- 1.0 RE.: TAXABILITY OF THE AMOUNT OF RS. 62.50 CRORES R ECEIVED FROM DIAGEO HOLDINGS NETHERLANDS BV PURSUANT TO THE INDEMNITY AGREEMENT: 1.1 THE ASSESSING OFFICER HAS ERRED IN HOLDING THAT THE AMOUNT RECEIVED BY THE APPELLANT FROM DIAGEO HOLDINGS NETHERLANDS BV PURSU ANT TO THE INDEMNITY AGREEMENT DATED 07 APRIL 2010 IS TAXABLE WITHOUT AP PRECIATING THAT IT IS CAPITAL RECEIPT WHICH IS NOT CHARGEABLE TO TAX. 1.2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACTS AN D CIRCUMSTANCES OF ITS CASE THE AMOUNT RECEIVED BY IT IN TERMS OF THE AFOR ESAID INDEMNITY AGREEMENT IS A CAPITAL RECEIPT AND NOT TAXABLE AS I TS INCOME. 1.3 THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER BE DIRECTED TO RECOMPUTED ITS TOTAL INCOME FOR THE YEAR WITHOUT CONSIDERING T HE AMOUNT RECEIVED IN TERMS OF TE AFORESAID INDEMNITY AGREEMENT. 2 RE.: GENERAL: 2.1 THE APPELLANT CRAVED LEAVE TO ADD, ALTER , AMEND, S UBSTITUTE AND/OR MODIFY IN ANY MANNER WHATSOEVER ALL OR ANY OF THE FOREGOING G ROUNDS OF APPEAL AT OR BEFORE THE HEARING OF THE APPEAL . 3.2.2 BEFORE US, THE LD. SENIOR COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THE ADDITIONAL GROUNDS (SUPRA) BE ADMITTED FOR CONS IDERATION SINCE IT RAISES A PURELY LEGAL ISSUE AND WOULD NOT REQUIRE T HE EXAMINATION OF ANY NEW FACT OTHER THAN THOSE ALREADY ON THE RECORD. W E HAVE HEARD THE RIVAL CONTENTIONS OF BOTH SIDES IN THE MATTER AND C AREFULLY CONSIDERED THE ISSUE BEFORE US. ON AN APPRECIATION OF THE SA ME, WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE RAISED IN THE ADD ITIONAL GROUNDS (SUPRA) IS PURELY A LEGAL ISSUE WHICH WOULD NOT REQ UIRE EXAMINATION OF ANY NEW FACTS, OTHER THAN THE MATERIAL ON RECORD AN D, THEREFORE, IN THE INTEREST OF EQUITY AND JUSTICE ADMIT THE SAME FOR C ONSIDERATION. 4. GROUNDS NOS.: 1 TO 3: 4.1 IN THESE GROUNDS, THE ASSESSEE ASSAILS THE ORDE RS OF THE AUTHORITIES BELOW IN HOLDING THAT THE INDEMNITY PRO CEEDS AMOUNTING TO RS.62,50,00,000/- RECEIVED FROM DIAGEO HOLDINGS B.V , NETHERLANDS 6 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) TOWARDS CUSTOMS DUTY, WHICH WAS DISCLOSED AS LOANS AND ADVANCES IN THE ASSESSEES BOOKS, IS A RECEIPT EXIGIBLE TO TAX IN ASSESSMENT YEAR 2011-12 INSTEAD OF ASSESSMENT YEAR 2012-13,WHERE IT WAS OFFERED FOR TAXATION WHEN THE LIABILITY HAD CRYSTALLIZED AND W AS ACCEPTED AS SUCH BY THE DEPARTMENT. 4.2.1 AT THE OUTSET, THE LD. SR. COUNSEL TOOK US T HROUGH THE FACTS OF THE CASE, ON THE ISSUE BEFORE US. IT IS SUBMITTED THAT THE ASSESSEE COMPANY, ENGAGED IN THE BUSINESS OF IMPORT AND TRADING OF AL COHOLIC BEVERAGES TILL NOVEMBER, 2009, HAD ENTERED INTO A DISTRIBUTIO N AGREEMENT DATED 30/07/2001 WITH M/S. DIAGEO BRANDS B.V FOR DISTRIB UTION OF IMPORTED ALCOHOLIC BEVERAGES IN INDIA. IN NOVEMBER,2009, TH E DRI INITIATED INVESTIGATIONS FOR RE-DETERMINATION OF THE ASSESSAB LE VALUE OF GOODS IMPORTED BY THE ASSESSEE IN THE PERIOD NOVEMBER, 20 04 TO NOVEMBER, 2009, SINCE IT WAS OF THE VIEW THAT THE REPORTED A SSESSABLE VALUE OF THE IMPORTED GOODS DID NOT REFLECT THE CORRECT IMPORT C OST AS THE SAME WERE BEING UNDERVALUED. THE DRI WENT ABOUT THE RE- DETERMINATION OF THE ASSESSABLE VALUE DECLARED BY THE ASSESSEE VIS- -VIS THE IMPORT PRICES OF ALCOHOLIC BEVERAGES OF THE DIAGEO GROUP IMPORTED BY DUTY FREE SHOPS AT DUTY FREE AREAS OF THE INTERNATIONAL AIRPORTS. IN THE COURSE OF DRIS INVESTIGATIONS, THE ASSES SEE DEPOSITED THE FOLLOWING AMOUNTS WITH THE CUSTOMS DEPARTMENT:- DATE AMOUNT(RS.) 18/11/2009 7,50,00,000 23/11/2009 25,00,00,000 09/12/2009 25,00,00,000 18/02/2010 2,50,00,000 12/05/2010 2,50,00,000 7 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) TOTAL 62,50,00,000 4.2.2. IT WAS SUBMITTED BY THE LD. SR. COUNSEL THA T THE ASSESSEE ENTERED INTO AN INDEMNITY AGREEMENT DATED 7/4/2010 (PLACED AT PAGE 39 TO 51 OF THE PAPER BOOK) WITH DIAGEO HOLDINGS B.V,NETHERL ANDS, AS PER WHICH IT RECEIVED THE REIMBURSEMENT AMOUNT OF RS.62,50,0 0,000/- IT HAD DEPOSITED WITH THE CUSTOMS DEPT. AS AN ADVANCE IN T HE YEAR UNDER CONSIDERATION. AS PER CLAUSE -2 OF THE INDEMNITY AGREEMENT, DIAGEO HOLDINGS NETHERLANDS B.V WAS TO INDEMNIFY THE ASSES SEE OF THE RELEVANT TAX THAT AROSE AS A CONSEQUENCE OF THE RE-DETERMINATION OF THE ASSESSABLE VALUE. THIS AGREEMENT AT CLAUSE 10 ALSO PROVIDED FOR THE RETURN TO DIAGEO HOLDINGS NETHERLANDS, B.V FROM THE ASSESSEE OF ANY AMOUNT RECEIVED BACK FROM THE AUTHORITIES CONCERNED . 4.2.3 THE LD. SR. COUNSEL SUBMITTED THAT THE DRI IS SUED A SHOW CAUSE NOTICE DATED 30/03/2011 TO THE ASSESSEE ALLEGING UN DERVALUATION OF THE IMPORTED GOODS AND WORKED OUT THE CUSTOMS DUTY LIAB ILITY IN THIS REGARD AT RS.58,04,28,400/-. ACCORDING TO THE LD. SR. COU NSEL, THE AMOUNT PAID TO THE CUSTOMS AUTHORITY AMOUNTING TO RS.62,50,00,0 00/- WAS SHOWN AS ADVANCE PAYMENT OF TAXES IN NOTE -9LOAN AND ADV ANCES TO THE BALANCE SHEET AS ON 31/03/2011 (PLACED AT PAGE 79 O F PAPER BOOK). IT IS SUBMITTED THAT SINCE THIS RECEIPT WAS ONLY AN ADVAN CE RECEIVED AND THE ADDITIONAL DUTY PAID WAS ONLY AN ADVANCE PAYMENT T OWARDS PROBABLE FUTURE TAX, NO EFFECT WAS GIVEN TO THESE ITEMS IN THE RETURN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION I.E. FOR ASS ESSMENT YEAR 2011-12. 4.2.4 THE LD. SR. COUNSEL FURTHER SUBMITTED THAT IN VIEW OF COMMERCIAL EXPEDIENCY AND SINCE IT HAS NOT BEEN ENGAGED IN THE IMPORT OF ALCOHOL 8 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) BEVERAGES FROM NOVEMBER, 2009, THE ASSESSEE DECIDED NOT TO AGITATE THE MATTER FURTHER AND APPROACHED THE CUSTOMS & CE NTRAL EXCISE SETTLEMENT COMMISSION IN RESPECT OF THE AFORESAID SHOW CAUSE NOTICE ISSUED TO IT. AS ON THE DATE OF APPLICATION BEFORE SETTLEMENT COMMISSION THERE WAS NO LIABILITY ON THE ASSESSEE T O PAY THE CUSTOMS DUTY. THE ADDITIONAL BENCH OF THE CUSTOMS & CENTR AL EXCISE SETTLEMENT COMMISSION, MUMBAI CONSIDERED THE ASSESSEES APPLIC ATION AND PASSED ITS FINAL SETTLEMENT ORDER DATED 9/2/2012 (PLACED AT PAGE 4 TO 33 OF THE PAPER BOOK). IN THIS ORDER, THE SETTLEMENT COMMISS ION SETTLED THE ADDITIONAL CUSTOMS DUTY LIABILITY PAYABLE AT RS.58, 04,28,400/- AS QUANTIFIED IN THE SHOW CAUSE NOTICE DATED 30/3/201 1 ISSUED TO THE ASSESSEE; INTEREST PAYABLE WAS DETERMINED AT RS.16 ,18,89,193/-. THE ORDER FURTHER IMPOSED A FINE OF RS.80,00,000/- AND RS.40,00,000/- FOR REDEMPTION OF THE SEIZED GOODS AT NHEVA SHAVA AND D ELHI REGIONS RESPECTIVELY AND IMPOSED A PENALTY OF RS.20,00,000 /- ON THE ASSESSEE. 4.2.5 THE LD. SR. COUNSEL SUBMITTED THAT IN PURSUAN CE OF THE ORDER OF THE SETTLEMENT COMMISSION DATED 9/2/2012, THE CUSTO M DUTY LIABILITY OF RS.58,04,28,400/- WAS ADJUSTED AGAINST THE AFORESAI D DEPOSIT OF RS.62,50,00,000/- AND THE BALANCE AMOUNT OF RS.4,45 ,71,600/- WAS ADJUSTED AGAINST THE INTEREST LIABILITY. ON 14/03 /2012, THE ASSESSEE MADE ALL THE REQUIRED PAYMENTS OF BALANCE OF INTERE ST LIABILITY, REDEMPTION FINES AND PENALTY, AND ACCORDINGLY THE M ATTER WAS SETTLED. IT WAS FURTHER SUBMITTED BY THE LD. SR. COUNSEL THA T THE BALANCE AMOUNTS, OVER AND ABOVE THE ADVANCE OF RS.62,50,00, 000/-, WERE RECEIVED DURING THE FINANCIAL YEAR 2011-12 RELEVAN T TO THE SUBSEQUENT ASSESSMENT YEAR 2012-13. IT WAS CONTENDED THAT SIN CE THE MATTER WAS 9 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) SETTLED BY THE ORDER OF THE SETTLEMENT COMMISSION D ATED 9/02/2012,WHEN THE MATTER ATTAINED FINALITY/LIABILI TY HAD CRYSTALLIZED, THE TOTAL AMOUNT OF REIMBURSEMENT RECEIVED BOTH IN ASSESSMENT YEAR S 2011-12 AND 2012-13 WAS OFFERED TO TAX IN ASSESSMEN T YEAR 2012-13 AND HAS BEEN ACCEPTED AS SUCH AND TAXED BY THE ASSE SSING OFFICER AS THE ASSESSEES INCOME FOR THE SAID YEAR IN THE ORDER OF ASSESSMENT PASSED UNDER SECTION 143(3) OF THE ACT DATED 23/3/2015 (AS SESSMENT ORDER FOR ASSESSMENT YEAR 2012-13, PLACED AT PAGES 56 TO 64 O F PAPER BOOK). 4.2.6 THE LD. SR. COUNSEL SUBMITTED THAT FOR THE YE AR UNDER CONSIDERATION, I.E. ASSESSMENT YEAR 2011-12, THE AS SESSING OFFICER HELD THAT THE AMOUNT OF RS.62,50,00,000/- RECEIVED BY TH E ASSESSEE BY VIRTUE OF THE INDEMNITY AGREEMENT DATED 7/4/2010 IS EXIGI BLE TO THE TAX. IT IS CONTENDED THAT THIS ORDER OF ASSESSMENT IS A NON-SP EAKING ORDER; WHICH DOES NOT GIVE ANY COGENT REASON FOR HOLDING THIS A MOUNT TO BE A TRADING RECEIPT AND TAXING THIS AMOUNT IN THIS YEAR AND WIT HOUT ESTABLISHING ANY LINKAGE OF ANY FACTUAL EVENT OF THE CASE THAT PROVE D THAT THE SAID CUSTOMS LIABILITY HAD CRYSTALLIZED IN THIS YEAR 201 1-012. THE LD. SR.COUNSEL FURTHER CONTENDED THAT ON APPEAL THE CIT (APPEALS) IN A NON- SPEAKING ORDER CONFIRMED THE ADDITION OF RS.62,50,0 0,000/- WITHOUT ASSIGNING ANY PROPER REASONS FOR HIS ACTION. IT WA S ALSO CONTENDED BY THE LD. SR.COUNSEL THAT THE CIT(APPEALS) BY WRONGL Y RELYING ON THE PROVISIONS OF SECTION 43B OF THE ACT EVEN REJECTED THE ASSESSEES ALTERNATE CLAIM THAT, IF THE REIMBURSEMENT OF RS.6 2,50,00,000/- WAS TO BE HELD AS EXIGIBLE TO TAX DURING THE PERIOD RELEVA NT TO ASSESSMENT YEAR 2011-12, THEN A CORRESPONDING DEDUCTION SHOULD BE A LLOWED FOR THE CORRESPONDING PAYMENT TOWARDS CUSTOMS DUTY LIABILIT Y. 10 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) 4.2.7 THE LD. SR. COUNSEL CONTENDS THAT THERE CAN B E NO DOUBT THAT THE AMOUNT OF RS.62,50,00,000/- IS A PURE REIMBURSEMENT OF EXPENSE PAID BY THE ASSESSEE AS CUSTOMS DUTY LIABILITY AND THAT THIS AMOUNT ACCRUES TO THE ASSESSEE ONLY IN THE YEAR IN WHICH THE LIABI LITY TO PAY THE ADDITIONAL CUSTOMS DUTY HAS CRYSTALLIZED. IT IS S UBMITTED THAT SINCE THE FACTS ON RECORD ESTABLISH THAT THE ORDER OF THE SET TLEMENT COMMISSION WAS PASSED ON 09/02/2012, IT IS UNDISPUTEDLY ESTABL ISHED THAT THE ASSESSEES LIABILITY TO PAY THE CUSTOMS DUTY CRYSTA LLIZED ONLY DURING THE FINANCIAL YEAR 2011-12, RELEVANT TO THE ASSESSMENT YEAR 2012-13, THE ASSESSEE FOLLOWING ACCRUAL SYSTEM OF ACCOUNTING. CONSEQUENTLY, THE REIMBURSEMENT OF THE CUSTOMS DUTY LIABILITY WHICH W AS RECEIVED UNDER THE INDEMNITY AGREEMENT CAN ALSO CRYSTALLIZE ONLY I N THE SAID ASSESSMENT YEAR 2012-13 AND NOT EARLIER IN ASSESSME NT YEAR 2011-12 AS ERRONEOUSLY HELD BY THE AUTHORITIES BELOW. IN SUPP ORT OF THIS PROPOSITION RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF TAPARIA TOOLS LTD. (2015), 372 ITR 605(SC). 4.2.8 THE LD. SR. COUNSEL ALSO DREW THE ATTENTION O F THE BENCH TO CLAUSES OF THE INDEMNITY AGREEMENT DATED 7/4/2010 (PLACED AT PAGE 39 TO 51 OF PAPER BOOK) WOULD BRING OUT THE FACT TH AT THE AMOUNT OF RS.62,50,00,000/- RECEIVED BY THE ASSESSEE THEREUND ER IN THE YEAR UNDER CONSIDERATION IS PURELY AN ADVANCE IN RESPECT OF LIKELY ADDITIONAL CUSTOMS DUTY PAYABLE BY THE ASSESSEE PURSUANT TO TH E DRI INVESTIGATIONS IN ITS CASE, WHICH LIABILITY HAD NOT YET CRYSTALLIZED. IT WAS ALSO POINTED OUT THAT CLAUSES 3 TO 10 ALSO CLEARLY DEMONSTRATES THE FACT THAT THE RECEIPT OF RS.62,50,00,000/- DURING THE YE AR IS ONLY AN ADVANCE AGAINST LIKELY CUSTOMS DUTY AND THAT ANY EXCESS OR SHORTFALL WOULD HAVE 11 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) TO BE REFUNDED OR RECEIVED FROM/TO THE INDEMNIFIER AFTER COMPLETION OF THE PROCEEDINGS OF THE SETTLEMENT COMMISSION. THE LD. SR.COUNSEL SUBMITTED THAT ACCORDINGLY THE AFORESAID AMOUNT HAS BEEN REFLECTED IN THE ASSESSEES BOOKS OF ACCOUNT AS ADVANCE IN NOTE- 15 OF THE FINAL ACCOUNTS FOR THE YEAR ENDED 31/03/2011 RELEVANT TO ASSESSMENT YEAR 2011-12, FROM WHERE IT IS CLEARLY EVIDENT THAT THE CUSTOMS DUTY OF RS.62,50,00,000/- PAID IN ADVANCE AS ON 31/3/2011 W AS REFLECTED AS CUSTOMS DUTY ADVANCE PAYMENT UNDER THE HEAD SHOR T TERM LOANS & ADVANCES (REFERENCE TO PAGE 79 OF PAPER BOOK- BALA NCE SHEET OF YEAR ENDED 31/03/2012 WHICH ALSO REPORTS THE RELEVANT FI GURES FOR ASSESSMENT YEAR 2011-12 ALSO). 4.2.8 THE LD. SR.COUNSEL CONTENDS THAT THE SAID AMO UNT OF RS.62,50,00,000/- IS AN AMOUNT RECEIVED IN ADVANCE TO DEFRAY A POSSIBLE LIABILITY AND, THEREFORE, IT CANNOT BE TREATED AS INCOME UNTIL THE CORRESPONDING LIABILITY HAS CRYSTALLIZED. IN THE C ASE ON HAND THE CUSTOMS DUTY LIABILITY CRYSTALLIZED PURSUANT TO THE ORDER OF THE CUSTOMS & CENTRAL EXCISE SETTLEMENT COMMISSION DATED 9/2/20 12, WHICH IS IN THE SUBSEQUENT PERIOD RELEVANT TO ASSESSMENT YEAR 2 012-13 AND, THEREFORE, THE AMOUNT OF RS.62,50,00,000/- CAN BE T AXED ONLY IN THAT YEAR AND NOT IN THE YEAR UNDER CONSIDERATION I.E. A SSESSMENT YEAR 2011- 12 AS HAS BEEN ERRONEOUSLY MADE OUT BY THE AUTHORI TIES BELOW. IN SUPPORT OF THIS PROPOSITION, LD. SR.COUNSEL PLACED RELIANCE ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF DALMIA CEMENT(BHARAT) LTD. (2013) 357 ITR 459(DELHI), IN W HICH IT IS CONTENDED IS AN IDENTICAL CASE OF POSSIBLE LEVY OF SALES TAX LIABILITY, IT WAS HELD THAT WHEN THE ASSESSEE COLLECTED REFUNDABLE SECURIT Y DEPOSIT TOWARDS 12 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) POSSIBLY LEVY OF SALES TAX ON PACKING CHARGES, ON THE UNDERSTANDING THAT IT WOULD BE REMITTED TO THE GOVERNMENT IF THE PENDING ISSUE OF LEVY OF THE TAX UPHELD BY THE APEX COURT, THE SAME COUL D NOT BE HELD TO BE TRADING RECEIPT. 4.2.9 THE LD. SR.COUNSEL SUBMITTED THAT WITHOUT PRE JUDICE TO THE AFORESAID ARGUMENTS PUT FORTH, THE WHOLE AMOUNT OF RS.62,50,00,000/- ALONGWITH THE ADDITIONAL AMOUNT OF REIMBURSEMENT RE CEIVED WAS OFFERED TO TAX IN THE IMMEDIATELY SUBSEQUENT YEAR, ASSESSMENT YEAR 2012-13 AND THE SAID AMOUNT HAS BEEN ACCEPTED AS DE CLARED AND BROUGHT TO TAX BY THE ASSESSING OFFICER / DEPARTMEN T IN THE ORDER OF ASSESSMENT FOR ASSESSMENT YEAR 2012-13 PASSED UNDER SECTION143(3) OF THE ACT VIDE ORDER DATED 23/03/2015.(ASSESSMENT ORD ER PLACED AT PAGES 59 TO 64 OF THE PAPER BOOK). IT IS CONTENDED THAT IN THESE CIRCUMSTANCES, THE ACTION OF THE ASSESSING OFFICER IN AGAIN TAXING THE SAME AMOUNT IN THE YEAR UNDER CONSIDERATION I.E. AS SESSMENT YEAR 2011-12 WOULD AMOUNT TO DOUBLE TAXATION OF THE SAME AMOUNT WHICH IS NOT PERMISSIBLE IN LAW. IN SUPPORT OF THIS PROPOSI TION RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF LAXMIPAT SINGHANIA (1969) 72 ITR 291, WHEREIN IT HA S BEEN HELD THAT IT IS A FUNDAMENTAL RULE OF THE LAWS OF TAXATION THAT INC OME CANNOT BE TAXED TWICE, UNLESS OTHERWISE EXPRESSLY PROVIDED IN THE S TATUTE. 4.3.1 PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATI VE STRONGLY SUPPORTED AND RELIED THE ORDERS OF THE AUTHORITIES BELOW IN BRINGING THE AMOUNT OF RS.62,50,00,000/- TO TAX IN ASSESSMENT YE AR 2011-12. IT WAS ALSO CONTENDED THAT EVEN THOUGH THE ASSESSEE HAD SU O-MOTO DECLARED THE IMPUGNED AMOUNT OF RS.62,50,00,000/-, ALONGWITH OTHER AMOUNTS 13 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) REIMBURSED, IN THE RETURN OF INCOME FOR ASSESSMENT YEAR 2012-13, WHICH WAS ADMITTEDLY ACCEPTED BY THE DEPARTMENT, TH E SAME AMOUNT HAS RIGHTLY BEEN BROUGHT TO TAX IN THE YEAR UNDER C ONSIDERATION. 4.4.1 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD, INCLUDING THE JU DICIAL PRONOUNCEMENTS CITED. THE FACTS OF THE MATTER ON T HIS ISSUE AS EMANATE FROM THE RECORD ARE THAT THE COMPANY WAS , INTER-ALIA, ENGAGED IN THE BUSINESS OF IMPORT AND TRADING IN A LCOHOLIC BEVERAGES TILL NOVEMBER, 2009, PURSUANT TO A DISTRIBUTION AGREEMEN T DATED 30/7/201 IT HAD WITH DIAGEO BRANDS B.V.,NETHERLANDS. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTI CED THAT THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.62.50 CRORES FROM DIAGEO BRANDS B.V, NETHERLANDS , WHICH WAS DISCLOSED BY TH E ASSESSEE AS REIMBURSEMENT RECEIVED WITH A NOTE 12(II)(F) TO S CHEDULE 17 TO FINANCIAL STATEMENTS. IN THIS REGARD, THE ASSESSIN G OFFICER OBSERVED THAT IN NOVEMBER, 2009 THE DRI HAD INITIATED INVESTIGATI ONS IN RESPECT OF UNDERVALUATION OF THE ASSESSEES IMPORTS BEFORE THE CUSTOMS DEPT. FOR THE PERIOD NOVEMBER 2004 TO NOVEMBER,2009. PURSUA NT TO THIS, THE ASSESSEE ENTERED INTO AN INDEMNITY AGREEMENT DATED 7/4/2010 WITH DIAGEO BRANDS BV NETHERLANDS, WHEREBY THE ASSESSEE WAS TO RECEIVE REIMBURSEMENT OF AMOUNTS PAID/TO BE PAID TO THE CUS TOMS DEPARTMENT AND RECEIVED THE SAID AMOUNT OF RS.62.50 CORES AS A N ADVANCE TOWARDS LIABILITY LIKELY TO ARISE UNDER THE CUSTOMS ACT. T HIS AMOUNT WAS SHOWN AS ADVANCE PAYMENT OF TAXES IN NOTE-9, LOANS AND ADVANCES TO THE BALANCE SHEET AS ON 31/03/2011. THE DRIS SHOW CAU SE NOTICE DATED 30/3/2011 INDICATED THAT THE ADDITIONAL CUSTOMS DUT Y LIABILITY ON 14 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) ACCOUNT OF UNDER VALUATION OF IMPORTS BY THE ASSESS EE WOULD BE RS.58,04,28,000/-. THE ASSESSEE THEN APPROACHED T HE CUSTOMS & CENTRAL EXCISE SETTLEMENT COMMISSION, WHICH BY ORDE R DATED 09/02/2012 WORKED OUT THE ASSESSEES LIABILITY AT R S.75,68,17,593/- WHICH WAS INCLUSIVE OF ADDITIONAL CUSTOMS DUTY, I NTEREST, FINE FOR REDEMPTION OF SEIZED GOODS AND PENALTY PAYMENT OF W HICH WERE MADE ON 14/3/2012. IN THIS FACTUAL MATRIX, THE ASSESSEE OFFERED FOR TAX THE ENTIRE REIMBURSEMENT RECEIVED, INCLUSIVE OF THE AMO UNT OF RS.62.50 CRORES, IN THE PERIOD RELEVANT TO ASSESSMENT YEAR 2 012-13 ON THE GROUNDS THAT THE ADDITIONAL CUSTOMS LIABILITY LED C RYSTALLIZED IN THIS PERIOD; WHICH WAS ACCEPTED AS SUCH BY THE DEPARTMEN T IN ASST PROCEEDINGS FOR ASSESSMENT YEAR 2011-12. THE AUTHO RITIES BELOW WERE HOWEVER OF THE VIEW THAT THE AMOUNT OF RS.62.50 CRO RES HAVING BEEN RECEIVED BY THE ASSESSEE IN THE PERIOD RELEVANT TO ASSESSMENT YEAR 2011-12 WAS EXIGIBLE TO TAX FOR THAT YEAR AND NOT F OR ASSESSMENT YEAR 2012-13 AD DECLARED BY THE ASSESSEE. 4.4.2 THE QUESTION FOR ADJUDICATION BEFORE US IN TH E GROUNDS AT SL.NO.1 TO 3(SUPRA) IS WHETHER THIS AMOUNT OF RS.62.50 CROR RES, RECEIVED BY THE ASSESSEE AS REIMBURSEMENT AND SHOWN AS ADVANCE PAY MENT OF TAXESAS PER NOTE-9 LOANS AND ADVANCES TO THE BALANCE SHE ET AS ON 31/3/2011 FOR ASSESSMENT YEAR 2011-12, WAS TO BE TAXED IN TH E SAME ASSESSMENT YEAR AS HELD BY REVENUE OR WAS EXIGIBLE TO TAX IN ASSESSMENT YEAR 2012- 13, PURSUANT TO THE CRYSTALLIZATION OF THIS LIABILI TY CONSEQUENT TO THE ORDER OF THE CUSTOMS & CENTRAL EXCISE SETTLEMENT CO MMISSION DATED 9/2/2012 AND ITS FINAL SETTLEMENT THEREOF ON 14/03 /2012. 15 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) 4.4.3 FROM THE FACTS ON RECORD, AS BROUGHT OUT ABOV E, WE FIND THAT THE SAID AMOUNT OF RS.62.50 CRORES RECEIVED BY THE ASSE SSEE FROM DIAGEO BRANDS B.V. NETHERLANDS PURSUANT TO THE INDEMNITY AGREEMENT DATED 7/4/2010 IS ONLY A REIMBURSEMENT OF EXPENSES PAID B Y THE ASSESSEE ON ACCOUNT OF PROBABLE FUTURE CUSTOMS DUTY LIABILITY T HAT MAY ARISE TO THE ASSESSEE ON ACCOUNT OF DRI INVESTIGATION AND WAS , THEREFORE, CORRECTLY SHOWN AS CUSTOMS DUTY & ADVANCE PAYMENT OF TAXES IN NOTE 15 TO THE BALANCE SHEET AS ON 31/3/2011 UNDER SHORT TERMS LO ANS AND ADVANCES. IN OUR VIEW, THIS AMOUNT OF RS.62.50 CR ORES WOULD ACCRUE TO THE ASSESSEE AND BE EXIGILE TO TAX IN THE ASSESSEE S HANDS ONLY IN THE YEAR IN WHICH THE LIABILITY TO PAY THE ADDITIONAL C USTOMS DUTY CRYSTALLIZED. THE FACTS ON RECORD ESTABLISH THAT T HE SAID LIABILITY, INTER- ALIA, OF ADDITIONAL CUSTOMS DUTY OF RS.62.50 CRORES CRYSTALLIZED, NOT IN ASST.YEAR 2011-12 AS HELD BY THE AUTHORITIES BELOW BUT ONLY DURING THE SUBSEQUENT FINANCIAL YEAR RELEVANT TO ASSESSMENT Y EAR 2012-13 WHEN THE ASSESSEES LIABILITY TO PAY THE ADDITIONAL CUST OMS DUTY AROSE, PURSUANT TO THE ORDER OF THE SETTLEMENT COMMISSION DATED 9/2/2012 WHICH WAS DISCHARGED BY THE ASSESSEE ON 14/3/2012. THE POSITION THAT THE PAYMENT OF RS.62.50 CRORES RECEIVED BY THE ASSE SSEE IS PURELY AN ADVANCE IN RESPECT OF LIKELY ADDITIONAL CUSTOMS DUT Y PAYABLE, WHICH HAD NOT YET CRYSTALLIZED, IS BROUGHT OUT IN CLAUSE 3 AND 10 OF THE INDEMNITY AGREEMENT DATED 07/04/2010 SPECIFYING THAT ANY EXCE SS RECEIVED BY THE ASSESSEE IN THIS REGARD WOULD HAVE TO BE REFUN DED TO DIAGEO BRANDS B.V. NETHERLANDS AFTER FINALIZATION OF THE PROCEEDI NGS OF THE CUSTOMS & CENTRAL EXCISE SETTLEMENT COMMISSION. IN THIS FACT UAL MATRIX, WE ARE OF THE CONSIDERED OPINION THAT SINCE THE ADDITIONAL C USTOMS DUTY LIABILITY CRYSTALLIZED PURSUANT TO THE ORDER OF THE CUSTOMS & CENTRAL EXCISE 16 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) SETTLEMENT COMMISSION ORDER DATED 09/02/2012, WHICH IS IN THE SUBSEQUENT PERIOD RELEVANT TO ASSESSMENT YEAR 2012- 13, IT IS EXIGIBLE TO TAX ONLY IN THAT YEAR AND NOT IN THE PERIOD UNDER C ONSIDERATION I.E. ASSESSMENT YEAR 2011-12. THIS AMOUNT OF RS.62.50 C RORES, THEREFORE, COULD NOT BE HELD TO BE A TRADING RECEIPT EXIGIBLE TO TAX IN THE YEAR UNDER CONSIDERATION AS HELD BY THE AUTHORITIES BELO W. IN COMING TO THIS FINDING, WE ALSO DRAW SUPPORT FROM THE DECISIO N OF THE HONBLE DELHI HIGH COURT IN THE CASE OF DALMIA CEMENT (BHAR AT) LTD. (357 ITR 459), WHERE THE FACTUAL MATRIX IS SIMILAR. IN THIS CITED CASE ON THE ISSUE OF A POSSIBLE LEVY OF SALES TAX LIABILITY, IT WA S HELD THAT WHERE THE ASSESSEE HAS COLLECTED REFUNDABLE SECURITY DEPOSIT TOWARDS POSSIBLE LEVY OF SALES TAX, ON THE UNDERSTANDING THAT IT WOU LD BE REMITTED TO THE GOVERNMENT IF THE PENDING ISSUE OF LEVY OF TAX WAS UPHELD BY THE HONBLE APEX COURT, THE SAME COULD NOT BE HELD TO B E A TRADING RECEIPT. 4.4.4 FROM THE FACTS ON RECORD WE ALSO FIND THAT TH E LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS NOT DISPUTED OR CONTROVERTED THE FACT THAT ADMITTEDLY THE ASSESSEE HAS OFFERED THI S AMOUNT OF RS.62.50 CRORES, ALONGWITH ADDITIONAL AMOUNTS OF REIMBURSEME NTS RECEIVED FOR PAYMENT OF LIABILITIES ON ACCOUNT OF INTEREST, FINE AND PENALTY TO TAX IN THE IMMEDIATELY FOLLOWING FINANCIAL YEAR ENDING 31/ 3/2012 RELEVANT TO THE ASSESSMENT YEAR 2012-13 AND THE SAME HAS BEEN A CCEPTED BY THE DEPARTMENT IN THE ORDER OF ASSESSMENT FOR ASSESSMEN T YEAR 2012-13 PASSED UNDER SECTION. 143(3) OF THE ACT VIDE ORDER DATED 23/3/2015. HAVING BROUGHT TO TAX THE AFORESAID AMOUNT OF RS.62 .50 CRORES, AS DECLARED BY THE ASSESSEE, IN THE ASSESSMENT FOR ASS ESSMENT YEAR 2012- 13, WE ARE OF THE VIEW THAT IT IS NOT OPEN TO REVEN UE TO TAX THE SAME 17 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) AMOUNT ONCE AGAIN IN THE ASSESSMENT YEAR 2011-12. IN COMING TO THIS FINDING, WE PLACE RELIANCE ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF LAXMIPAT SINGHANIA (79 ITR 291) WHEREIN THE HONBLE COURT HAS HELD THAT THE FUNDAMENTAL RULE OF TAXATION IS T HAT, UNLESS EXPRESSLY PROVIDED THE SAME INCOME CANNOT BE TAXED TWICE. 4.4.5 TAKING INTO CONSIDERATION THE FACTUAL AND LEG AL MATRIX OF THE CASE, AS DISCUSSED ABOVE FROM PARAS 4.1 TO 4.4.4 (SUPRA), WE ARE OF THE CONSIDERED OPINION THAT THE SAID AMOUNT OF RS.62.50 CRORES IS EXIGIBLE TO TAX, AS DECLARED BY THE ASSESSEE, ONLY IN THE FINAN CIAL YEAR RELEVANT TO ASSESSMENT YEAR 2012-13 AND NOT IN THE PERIOD RELE VANT TO ASSESSMENT YEAR 2011-12 AS HELD BY THE AUTHORITIES BELOW. WE, THEREFORE, REVERSE THE IMPUGNED ORDER OF THE CIT(APPEALS) AND ALLOW TH E ASSESSEES APPEAL IN TERMS OF THE GROUNDS RAISED AT SL.NOS. 1 TO 3. 5. IN GROUND NO.5, THE ASSESSEE DENIES ITSELF LIAB LE TO BE CHARGED INTEREST UNDER SECTION. 234B AND 234D OF THE ACT. THE CHARGING OF INTEREST IS CONSEQUENTIAL AND MANDATORY AND THE ASS ESSING OFFICER HAS NO DISCRETION IN THE MATTER. THIS PROPOSITION HAS BEEN UPHELD BY THE HONBLE APEX COURT IN THE CASE OF ANJUM M.H. GHASWA LA (252 ITR 1) (SC) AND WE , THEREFORE, UPHOLD THE ACTION OF THE ASSESS ING OFFICER IN CHARGING THE SAID INTEREST. THE ASSESSING OFFICER IS HOWEVER, DIRECTED TO RE-COMPUTE THE INTEREST CHARGEABLE UNDER SECTIO N. 234B AND 234D OF THE ACT WHILE GIVING EFFECT TO THIS ORDER. 6. IN VIEW OF OUR DECISION ALLOWING THE ASSESSEES APPEAL IN TERMS OF THE GROUNDS RAISED AT SL.NOS. 1 TO 3(SUPRA) WE DO NOT DEEM IT NECESSARY TO ADJUDICATE THE ALTERNATE GROUND RAISED AT SL.NO. 4 AND ADDITIONAL GROUNDS RAISED AT SL.NOS. 1.0 (1.1 TO 1.3). 18 ITA NO. 5087/MUM/2015 (ASSESSMENT YEAR : 2011-12) 7. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESSM ENT YEAR 2011-12 IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 29/02/2016 SD/- SD/- (RAM LAL NEGI) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI, DATED 29/02/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 2. THE RESPONDENT. 3. THE CIT(A)- 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI