DCIT, New Delhi V. M/s Food Corporation of India, New Delhi

ITA 5226/DEL/2010

• Counselvise Citation: 522620114 RSA 2010
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 02-07-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 24-11-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KRISHNA
• Assessee Lawyers: HARISH KAPOOR
• Keywords: Reopening of assessment; Depreciation; Difference of opinion; Change of opinion; Reassessment proceedings; Capital expenditure
• Section: 143(3); 147; 148; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH B DELHI ] BEFORE SHRI RAJ PAL YADAV, JM AND SHRI K. D. RA NJAN, AM I. T. APPEAL NO. 5226 (DEL) OF 2010. ASSESSMENT YEAR : 200405. DY. COMMISSIONER OF INCOME-TAX, M/S. F OOD CORPORATION OF INDIA, C I R C L E : 11 (1), VS. 16 20, BARAKHAMBA LANE, N E W D E L H I. N E W D E L H I. P A N / G I R NO. AAA CF 0365 N. A N D C. O. NO. 88 (DEL) OF 2011. [ IN I. T. APPEAL NO. 5226 (DEL) OF 2010 ]. ASSESSMENT YEAR : 200405. M/S. FOOD CORPORATION OF INDIA, DY. COMMISSIONER OF INCOME-TAX, 16 20, BARAKHAMBA LANE, VS. C I R C L E : 11 (1), N E W D E L H I. N E W D E L H I. P A N / G I R NO. AAA CF 0365 N. ( APPELLANTS ) ( RESPONDENTS ) ASSESSEE BY : SHRI HARISH KAPOOR, C. A.; DEPARTMENT BY : SHRI KRISHNA [ CIT ] D. R. ; O R D E R. PER K. D. RANJAN, AM : THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE FOR ASSESSMENT YEAR 2004-05 ARISE OUT OF ORDER OF THE LD. CIT (APP EALS)XIII, NEW DELHI. THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF, FOR THE SAKE OF CONVENIENCE, BY THIS CONSOLIDATED ORDER. 2 I. T. A. NO. 5226 (DEL) OF 2010 A N D C. O. NO. 88 (DEL) OF 2011. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT (APPEALS) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.6009.42 LACS CLAIMED BY THE ASSESSEE ON ACCOUNT OF DEMURRAGE AND DIVERSION CHARGE; 2. ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE CIT (APPEALS) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.2070.58 LACS ON ACCOUNT OF PURCHASE OF FOOD GRAINS UNDER UNCONNECTED WAGONS; 3. ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE CIT (APPEALS) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.593.09 LACS ON ACCOUNT OF PRIOR PERIOD EXPENSES. 3. THE GROUND OF APPEAL RAISED BY THE ASSESSEE IN T HE CROSS OBJECTION IS AS FOLLOWS:- THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT (APPEALS) HAS ERRED IN LAW IN UPHOLDING THE RE-ASSESSMENT PRO CEEDINGS MADE BY THE ASSESSING OFFICER UNDER SECTION 148 OF THE INCOME T AX ACT, 1961. 4.1 FIRST WE WILL TAKE UP GROUNDS OF APPEAL RAISED IN THE CROSS OBJECTION FILED BY THE ASSESSEE. THE ONLY ISSUE FOR CONSIDERATION RELATES TO UPHOLDI NG THE RE-ASSESSMENT PROCEEDINGS MADE BY THE AO UNDER SECTION 148 OF THE I. T. ACT, 1961. THE F ACTS OF THE CASE STATED IN BRIEF ARE THAT ORIGINAL ASSESSMENT WAS MADE ON 15/12/2006 UNDER SECTION 143 (3) DETERMINING THE TOTAL INCOME AT RS.52,46,34,000/- AS AGAINST DECLARED LOSS OF RS.5, 19,72,000/-. THEREAFTER THE AO ISSUED NOTICE UNDER SECTION 148 ON 6/03/2009 AFTER RECORDING REAS ONS FOR REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE ACT. THE REASONS RECORDED ARE A S UNDER:- ON VERIFICATION OF THE CASE RECORDS IT HAS BEEN OBSERVED THAT :- (I) THE ASSESSEE HAS DEBITED RS.60099.42 LACS TO PROFIT AND LOSS ACCOUNT ON ACCOUNT OF DEMURRAGES. THE EXPENDITURE BEING A PENALTY WAS INADMISSIBLE AND SHOULD HAVE BEEN DISALLOWED AND ADDED BACK; 3 I. T. A. NO. 5226 (DEL) OF 2010 A N D C. O. NO. 88 (DEL) OF 2011. (II) THE ASSESSEE HAS DEBITED RS.2,70.58 LACS ON ACCOUNT OF PURCHASE OF UNCONNECTED WAGONS WHICH WAS OF CAPITAL NATURE AND SHOULD HAVE BEEN DISALLOWED SUBJECT TO ALLOWANCE OF DEPRECIATION AT THE RATE OF 25 PER CEN T; (III) THE ASSESSEE HAS DEBITED PRIOR PERIOD EXPENSES OF R S.593.09 LACS. THE ASSESSEE IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING. HENCE, THE SAME SHOULD HAVE BEEN DISALLOWED. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) OF THE I. T. ACT, THE SAME HAS NOT BEEN ADDED BACK / DISALLOWED. 4.2 DURING THE COURSE OF REASSESSMENT PROCEEDINGS T HE ASSESSEE CHALLENGED REOPENING OF ASSESSMENT RELYING ON VARIOUS DECISIONS. HOWEVER, THE AO COMPLETED ASSESSMENT BY MAKING THE ADDITIONS ON ACCOUNT OF DEMURRAGES CHARGES, PURCHAS E OF UNCONNECTED WAGONS AND DISALLOWANCE OF PRIOR PERIOD EXPENSES. BEFORE THE LD. CIT (APPE ALS) THE ASSESSEE CHALLENGED ISSUE OF REOPENING OF ASSESSMENT UNDER SECTION 147 AS WELL A S THE ADDITIONS MADE BY AO UNDER DIFFERENT HEADS. THE LD. CIT (APPEALS), HOWEVER, UPHELD THE REOPENING OF ASSESSMENT. HE OBSERVED THAT THE AO HAD MATERIAL BEFORE HIM TO FORM AL BELIEF TH AT INCOME HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 READ WITH PROVISIONS OF EXPL ANATION (2) OF SAID SECTION AS SUCH THE AO HAS RIGHTLY INVOKED THE PROVISIONS OF 147 FOR REASS ESSMENT OF EXPENSES CLAIMED UNDER THE HEAD PRIOR PERIOD ADJUSTMENTS. MOREOVER, THE GROUNDS OF REOPENING WERE ALSO WITH REGARD TO ISSUE OF DEMURRAGES CHARGES AND CAPITAL EXPENDITURE INCURRED TOWARDS PURCHASE OF UNCONNECTED WAGONS ON WHICH THE ASSESSEE HAD NOT COMMENTED UPON IN HIS OBJECTIONS FOR REOPENING. HE FURTHER OBSERVED THAT SHOW CAUSE NOTICE FOR ORIGINAL ASSESS MENT PROCEEDINGS AND IN THE CONSEQUENT ORIGINAL ASSESSMENT ORDER THERE WAS NO DISCUSSION O N THESE ISSUES AND, THEREFORE, REOPENING PROCEEDINGS WERE ESSENTIALLY BASED ON THREE ISSUES VIZ. PRIOR PERIOD EXPENSES, DEMURRAGES CHARGES AND CAPITAL EXPENDITURE INCURRED TOWARDS PU RCHASES OF UNCONNECTED WAGONS COULD NOT BE FAULTED ONLY BECAUSE ONE OF THE GROUND WAS OBLIQUEL Y EXAMINED DURING THE ASSESSMENT PROCEEDINGS. THE LD. CIT (A), THEREFORE, DISMISSED THE GROUND RAISED BY THE ASSESSEE FOR REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE AC T. 4 I. T. A. NO. 5226 (DEL) OF 2010 A N D C. O. NO. 88 (DEL) OF 2011. 5. BEFORE US THE LD. AR OF THE ASSESSEE SUBMITTED T HAT ON IDENTICAL FACTS FOR ASSESSMENT YEAR 2003-04 ITAT, DELHI BENCH B IN ITA. NO. 546 (DEL) O F 2011 AND C.O. NO. 71 (DEL) OF 2011 DATED 13/04/2011 HAS HELD THAT THE LD. CIT (A) HAD COMMITTED AN ERROR IN UPHOLDING THE VALIDITY OF REASSESSMENT PROCEEDINGS AND HIS ORDER ON THIS I SSUE WAS ACCORDINGLY SET ASIDE. ON THE OTHER HAND, THE LD. CIT (D)R SUPPORTED THE ORDER OF THE L D. CIT (APPEALS). 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE HAVE GONE THROUGH THE ORIGINAL ASSESSMENT ORDER PAS SED ON 15/12/2006. THE AO HAS NOT DEALT WITH THE ITEMS ON THE BASIS OF WHICH REOPENING HAS BEEN MADE. WE HAVE ALSO GONE THROUGH THE REPLY SUBMITTED BY THE ASSESSEE DURING THE COURSE O F ORIGINAL ASSESSMENT PROCEEDINGS. WE FIND THAT THE AO HAD NOT RAISED ANY QUERY IN RESPECT OF DEMURRAGES CHARGES, PURCHASE OF UNCONNECTED WAGONS AND PRIOR PERIOD EXPENSES. THE ASSESSEE HAD ALSO NOT GIVEN ANY DETAILS IN RESPECT OF THESE ITEMS. IT IS ALSO A FACT THAT ASSESSMENT HAS BEEN REOPENED WITHIN THE PERIOD OF FOUR YEARS. THEREFORE, THE ASSESSEES CASE IS TO BE DECIDED IN ACCORDANCE WITH THE MAIN PROVISIONS OF SECTION 147 OF THE ACT. WE ALSO FIND THAT DURING THE COURS E OF REASSESSMENT PROCEEDINGS THE ASSESSEE HAD NOT OBJECTED TO REOPENING OF ASSESSMENT WITH REFERE NCE TO DEMURRAGES AND NATURE OF EXPENSES BOOKED UNDER PURCHASES ON ACCOUNT OF UNCONNECTED WA GONS. HOWEVER, IT HAS BEEN STATED BY THE ASSESSEE THAT THE AO AT THE TIME OF ORIGINAL ASSESS MENT AFTER CONSIDERING THE FACTS OF THE CASE HAD NOT MADE ANY ADDITION OUT OF PRIOR PERIOD ITEMS. T HEREFORE, REOPENING OF ASSESSMENT IN RESPECT OF PRIOR PERIOD ITEMS AMOUNTS TO CHANGE OF OPINION AND IS NOT PERMISSIBLE. REOPENING OF ASSESSMENT IS, THEREFORE, HELD BAD IN LAW. AS REGA RDS OTHER TWO ISSUES, WE FIND THAT THE AO HAD NOT EXAMINED THE CLAIM FOR DEMURRAGES CHARGES AND C APITAL EXPENDITURE IN THE COURSE OF ASSESSMENT PROCEEDINGS AND THE ASSESSEE HAD ALSO NO T GIVEN ANY INFORMATION IN RESPECT OF THESE ITEMS AND ASSESSMENT HAS BEEN REOPENED WITHIN THE P ERIOD OF FOUR YEARS, THE REOPENING OF ASSESSMENT CANNOT BE SAID TO BE ON BASED ON CHANGE OF OPINION AND, THEREFORE, THE LD. CIT (A) WAS JUSTIFIED IN CONFIRMING THE REOPENING OF ASSESS MENT UNDER SECTION 147 OF THE ACT. THEREFORE, WE DO NOT FIND ANY MERITS IN THE CO FILED BY THE AS SESSEE CHALLENGING THE REOPENING OF ASSESSMENT IN RESPECT OF THESE TWO ITEMS. 5 I. T. A. NO. 5226 (DEL) OF 2010 A N D C. O. NO. 88 (DEL) OF 2011. 7. NOW WE WILL DECIDE THE APPEAL FILED BY THE REVEN UE. THE FIRST ISSUE FOR CONSIDERATION RELATES TO DELETING THE DISALLOWANCE OF RS.6009.42 LACS ON ACCOUNT OF DEMURRAGES CHARGES. THE AO IN THE COURSE OF REASSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAD PAID RS.799.26 LACS ON ACCOUNT OF DEMURRAGES CHARGES AND RS.5210.06 LACS O N ACCOUNT OF DIVERSION CHARGES. THE CORPORATION HAD BEEN ENTRUSTED WITH THE RESPONSIBIL ITY OF EXECUTING THE FOOD POLICY OF THE GOVT. OF INDIA. AS SUCH, THE CORPORATION HAD BEEN UNDERT AKING PROCUREMENT, STORAGE, MOVEMENT AND DISTRIBUTION OF FOOD GRAINS SINCE ITS INCORPORATION . THE FOOD GRAINS ARE TRANSPORTED MAINLY THROUGH RAILWAYS FROM THE PROCUREMENT / SURPLUS PLA CES TO CONSUMING / DEFICIT REGIONS. RAILWAYS AS PER ITS POLICY ALLOW NINE HOURS AS FREE TIME FOR LOADING / UN-LOADING OF WAGONS. THOUGH ALL OUT EFFORTS WERE MADE TO COMPLETE THE OPERATION OF LOAD ING AND UNLOADING OF WAGONS IN FREE HOURS, BUT SOMETIMES THESE COULD NOT BE COMPLETED DUE TO P LACEMENT OF WAGONS IN LATE HOURS, NON- AVAILABILITY OF LABOUR FORCE ETC. THE RAILWAYS CHA RGES DEMURRAGES FOR EXTRA TIME TAKEN IN LOADING UNLOADING AFTER ELAPSE OF FREE HOURS. THEREFORE, T HE DEMURRAGE CHARGED BY THE RAILWAYS IS A FEE FOR EXTRA TIME CONSUMED BY THE CUSTOMER AND COULD N OT BE CATEGORIZED AS PENALTY AS THERE WAS NO VIOLATION OF LAW. THE ASSESSEE PLACED RELIANCE ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF MAHALAXMI SUGAR MILLS REPORTED AS 157 I TR 683. HOWEVER, THE AO REJECTED THE CONTENTION OF THE ASSESSEE AND TREATED THE DEMURRAG ES CHARGES OF PENAL IN NATURE. HE, THEREFORE, DISALLOWED THE AMOUNT OF RS.6009.42 LACS. 8. ON APPEAL THE LD. CIT (A) DELETED THE ADDITION R ELYING ON DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. AHMEDABAD COTTON MILLS (SUPRA) AND DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF MAHALAXMI SUGAR MILLS (SU PRA). 9. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO GONE THROUGH THE CORRESPONDENCE AND DETAI LS PLACED ON RECORD IN RESPECT OF DEMURRAGE CHARGES AND DIVERSION FEES. THERE IS NO DISPUTE AB OUT THE FACT THAT THE ASSESSEE HAD PAID DEMURRAGES AND DIVERSION CHARGES DURING THE REGULAR COURSE OF BUSINESS ACTIVITIES. HONBLE DELHI 6 I. T. A. NO. 5226 (DEL) OF 2010 A N D C. O. NO. 88 (DEL) OF 2011. HIGH COURT IN THE CASE OF MAHALAXMI SUGAR MILLS LTD . (SUPRA) HAS HELD THAT DEMURRAGES PAID TO RAILWAYS IS DEDUCTIBLE; THAT PAYMENT OF DEMURRAGES TO RAILWAYS IS NOT IN THE NATURE OF PENALTY AND IT IS MERELY A CHARGE MADE BY THE RAILWAYS ADMINIST RATION TO COMPENSATE ITSELF FOR KEEPING THE GOODS OF THE ASSESSEE IN ITS CUSTODY BEYOND A PARTI CULAR TIME. THEREFORE, EXPENDITURE INCURRED ON ACCOUNT OF DEMURRAGE CHARGES COULD BE SAID TO HAVE BEEN LAID OUT WHOLLY AND EXCLUSIVELY FOR THE ASSESSEES BUSINESS AND WAS ALLOWABLE AS BUSINESS E XPENDITURE. RESPECTFULLY FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IT IS HELD THA T DEMURRAGE CHARGES PAID BY THE ASSESSEE ARE NOT FOR ANY INFRACTION OF LAW AND AS SUCH, THE SAME CANNOT PARTAKE THE CHARACTER OF PENALTY. THE AMOUNT REPRESENTS PAYMENT MADE TO RAILWAY ADMINISTR ATION FOR KEEPING THE ASSESSEES GOODS IN THEIR CUSTODY BEYOND A PARTICULAR TIME. THEREFORE, EXPENDITURE INCURRED ON ACCOUNT OF DEMURRAGES AND DIVERSION CHARGES IS ALLOWABLE AS BU SINESS EXPENDITURE UNDER SECTION 37 OF THE ACT. ACCORDINGLY WE DO NOT FIND ANY INFIRMITY IN T HE ORDER PASSED BY THE LD. CIT (A) DELETING THE ADDITION. 11. THE NEXT ISSUE FOR CONSIDERATION RELATES TO DEL ETING THE ADDITION OF RS.2070.58 LAKHS ON ACCOUNT OF PURCHASE OF UNCONNECTED WAGONS. IT WAS SUBMITTED BY THE ASSESSEE THAT THE FOOD GRAINS WERE TRANSPORTED THROUGH RAILWAY WAGON BY A CONSIGNER UNIT TO BE RECEIVED BY CONSIGNEE UNIT. HOWEVER, IN CERTAIN CIRCUMSTANCES LIKE TRANS -SHIPMENT OF WAGONS EN-ROUTE SICKNESS OF WAGONS, DIVERSION OF WAGONS BY RAILWAY DUE TO NAT URAL CALAMITY ETC. IT HAPPENS A WAGON NEED FOR A PARTICULAR DESTINATION DID NOT REACH THE SAID DESTINATION AND DELIVERED AT OTHER UNIT OF OTHER PARTIES IN SUCH CASES THE CONSIGNER WILL TREAT SUCH WAGONS AS MISSING WAGON AND THE CONSIGNEE WHO RECEIVES THE GOODS WILL TREAT THE SAME AS UNCON NECTED WAGON. ACCORDINGLY, INWARD MATERIAL OF FOOD GRAIN IS BOOKED IN THE BOOKS OF ACCOUNTS AS MISSING OR UNCONNECTED WAGONS AS THE CASE MAY BE. EFFORTS ARE MADE TO LINK THE MISSING / UNC ONNECTED WAGONS BY MOVEMENT DIVISION OF THE CORPORATION BY CIRCULATING THE LIST OF MISSING / UN CONNECTED WAGONS, ORGANIZING MEETINGS / SEMINARS THE RAILWAYS ARE ALSO INVOLVED IN THIS PRO CESS. IN LINKING OF MISSING / UNCONNECTED WAGONS THE ADJUSTMENTS ARE CARRIED OUT IN THE BOOKS OF ACCOUNTS. IN FACT THE CORPORATION DOES NOT PURCHASE AND RAIL WAGON OF ITS OWN AND THE NOTE IN THE ACCOUNTS RELATES TO FOOD GRAINS RECEIVED BY THE UNIT WITHOUT CORRESPONDING ADVICES SUCH AS BOOK ED AS PURCHASES ON ACCOUNT OF UNACCOUNTED 7 I. T. A. NO. 5226 (DEL) OF 2010 A N D C. O. NO. 88 (DEL) OF 2011. WAGONS. IN NO STRETCH OF IMAGINATION THE SAME CAN BE TREATED AS PURCHASE OF WAGONS AS A CAPITAL EXPENDITURE. HOWEVER, THE ASSESSING OFFICER TREATE D THE EXPENDITURE CAPITAL IN NATURE AND ALLOWED DEPRECIATION AT THE RATE OF 25 PER CENT. ON APPEAL , THE LD. CIT (A) AFTER CONSIDERING THE RELEVANT MATERIAL OBSERVED THAT THE AO HAD TREATED THE PURCH ASE OF FOOD GRAINS UNDER UNCONNECTED WAGONS AS PURCHASE OF WAGONS BY THE ASSESSEE. THE ASSESSE E DID NOT PURCHASE ANY RAIL WAGONS WHICH ARE OF THE NATURE OF CAPITAL EXPENDITURE. THE LD. CIT (A) AFTER GOING THROUGH THE JOURNALL ENTRY IN RESPECT OF VOUCHER NO. 48 FOR MARCH, 2001 HELD THAT CONTENTION OF THE ASSESSEE WAS CORRECT. THE LD. CIT (A) ACCORDINGLY DELETED THE ADDITION. 12. BEFORE US THE LD. CIT DR SUPPORTED THE ORDER OF THE AO. ON THE OTHER HAND, THE LD. AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE LD. CIT (APPEALS). 13. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE FACTS STATED ABOVE, IT IS CLEAR THAT UNCONNECTE D PURCHASE OF UNCONNECTED WAGONS IS NOT PURCHASE OF WAGONS BY THE ASSESSEE. IT REPRESENTS THE CONSIGNMENTS DELIVERED AT SOME OTHER DESTINATION. THE LD. CIT (APPEALS) IN HIS ORDER HA S GIVEN REFERENCE TO GENERAL VOUCHER NO. 48 FOR THE MONTH OF MARCH, 2004, ACCORDING TO WHICH ONE WA GON CONTAINING RICE 55.23 MT WAS UN- LOADED AT MSWC, NANDED AND 20 WAGONS UNLOADED AT PA RWANI IN THE MONTH OF DECEMBER, 2003 CONTAINING 1145.535 MT OF RICE. FROM THESE FACTS I T BECOMES CRYSTAL CLEAR THAT THE ASSESSEE HAS NOT PURCHASED ANY WAGONS WHICH COULD BE TREATED CAP ITAL EXPENDITURE. THEREFORE, NO ADDITION CAN BE MADE. THEREFORE, THE LD. CIT (A) WAS JUSTIF IED IN DELETING THE ADDITION. 14. THE LAST ISSUE FOR CONSIDERATION RELATES TO DEL ETING THE ADDITION OF RS.593.09 LACS ON ACCOUNT OF PRIOR PERIOD EXPENSES. SINCE WE HAVE NO T UPHELD THE REOPENING OF ASSESSMENT IN RESPECT OF PRIOR PERIOD EXPENSES, THIS GROUND OF AP PEAL OF REVENUE BECOMES INFRUCTUOS AND IS DISMISSED AS SUCH. 8 I. T. A. NO. 5226 (DEL) OF 2010 A N D C. O. NO. 88 (DEL) OF 2011. 15. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AS ALSO THE CROSS OBJECTION FILED BY THE ASSESSEE ARE PARTLY ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 30 TH SEPTEMBER, 2011. SD/- SD/- [ RAJPAL YADAV ] [ K. D . RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30 TH SEPTEMBER, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANTS. 2. RESPONDENTS. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.