MPL PLASTICS LTD, MUMBAI V. DCIT CIR 2(2), MUMBAI

ITA 5226/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7879 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 05-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: K G BOHRA
• Keywords: Avoidance of tax; Revised return
• Section: 143(3); 80IB; 147

Judgement Text

ITA NO. 5226/MUM/2015 A.Y 2010 - 11 MPL PLASTICS LTD. VS. DCIT 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, M UMBAI BEFORE SHRI G.S PANNU , AM AND SHRI RAVISH SOOD, JM ITA NO. 5226 /MUM/201 5 ( / ASSESSMENT YEAR:201 0 - 1 1 ) MPL PLASTICS LTD ( FORMERLY KNOWN AS MILTN PLASTICS LTD ), 2, ASHISH WAREHOUSE CORPORATION, PUNJAB FOUNDRY INDL. ESTATE, NEAR CLASSIC STUDIO, MIRA BHA YANDAR ROAD, KASHMIRA, MIRA ROAD (E), THANE 401 104. / VS. D Y. COMMISSIONER OF I.TAX, CIRCLE 2(2), AAYKAR BHAVAN, M.K ROAD, CHURCHGATE, MUMBAI - 400 020. ./ ./ PAN NO. AAA CM4047Q ( / APPELLANT) : ( / RESPONDENT ) / APPELLANT BY : SH . K.G BOHRA , A.R. / RESPONDENT BY : SH . T.A KHAN , SR. D.R. / DATE OF HEARING : 22 .1 1 .2017 / DATE OF PRONOUNCEMENT : 27 .12.2017 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 5 , MUMBAI, DATED 14.09.2015 , WHICH IN ITSELF ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC. 143(3) OF THE INCOME - TAX ACT, 1961 (FOR ITA NO. 5226/MUM/2015 A.Y 2010 - 11 MPL PLASTICS LTD. VS. DCIT 2 SHORT ACT), DATED 26.03. 2013 . THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAD RAISED BEFORE US THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LD. CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS. 7,72,99,520/ - ON ACCOUNT OF DIFFERENCE IN SALES PRICE CHARGED TO M/S HAMILTON HOUS EWARES PVT. LTD AND OTHER ENTITIES. 2. THE CIT(APPEAL) ERRED IN STATING SINCE THE FACTS AND CIRCUMSTANCES REMAINS THE SAME FOLLOWING THE PRINCIPLE OF JUDICIAL CONSISTENCY, THE DISALLOWANCE MADE BY THE A.O IS UPHELD WITHOUT CONSIDERING THE SUBMISSIONS MAD E BY THE APPELLANT RELATING TO THE JUSTIFICATION FOR DIFFERENTIAL IN PRICE CHARGED TO M/S HAMILTON HOUSEWARES PRIVATE LIMITED. 3. YOUR APPELLANT CRAVES LEAVE TO ADD, TO ALTER, AMEND , OR DELETE ANY OF THE FOREGOING GROUNDS OF APPEAL. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF THERMOWARE PRODUCTS AND TRADING IN POLYMERS HAD E - FILED ITS RETURN OF INCOME FOR A.Y. 201 0 - 1 1 ON 27 .09.201 0 , DECLARING A LOSS OF RS. 7,49,53,173 / - . THE ASSESSEE THEREAFTER FILED A REVISED RETURN OF INCOME SHOWING A LOSS OF RS. 7,53,85,730/ - . THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED AS SUCH UNDER SEC. 143(1) OF THE ACT. THE CASE OF THE ASSESSEE WAS THEREAFTER TAKEN UP FOR SCRUTINY ASSES SMENT UNDER SEC. 143(2). 3. THE A.O DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OBSERVED THAT THE ASSESSEE HAD MADE SALES OF RS. 30,46,82,638/ - TO M/S HAMILTON HOUSEWARES PVT. LTD WHICH WAS A CONCERN RUN BY RELATIVES OF THE DIRECTORS OF THE ASSESSEE C OMPANY. THE A.O WHILE PERUSING THE PRICES CHARGED BY THE ASSESSEE FROM M/S HAMILTON HOUSEWARES PVT. LTD. AS IN COMPARISON TO THAT CHARGED FROM THE OTHER PARTIES WITH RESPECT TO EACH AND EVERY ITEM OBSERVED THAT THE ASSESSEE HAD CARRIED OUT SALES TO M/S HAM ILTON HOUSEWARES PVT. LTD AT AN ITA NO. 5226/MUM/2015 A.Y 2010 - 11 MPL PLASTICS LTD. VS. DCIT 3 AVERAGE DISCOUNTED RATE OF 12% . THE ASSESSEE EXPLAINING THE DISCOUNTED SALES TO M/S HAMILTON HOUSEWARES PVT. LTD SUBMITTED THAT THE SAME WAS FOR THE REASON THAT THE SAID CONCERN WAS TO BEAR THE TRANSPORTATION COST AND CARRY OUT ADVERTISEMENT ACTIVITY FOR MARKETING OF THE PRODUCTS. HOWEVER, THE A.O WAS OF THE VIEW THAT THE ASSESSEE COULD NOT SUBSTANTIATE ITS EXPLANATION ON THE BASIS OF ANY DOCUMENTS . THE A.O FURTHER TAKING COGNIZANCE OF THE FACT THAT M/S HAMILTON HOUSEWARES PV T. LTD BEING AN EXEMPT UNIT WAS CLAIMING DEDUCTION UNDER SEC. 80IB OF THE ACT, THEREFORE, HELD A CONVICTION THAT THE ASSESSEE BY TRANSFERRING ITS PRODUCTS AT A LESSER PRICE TO M/S HAMILTON HOUSEWARES PVT. LTD WAS GETTING A DUAL BENEFIT, VIZ. (I). THE INCOM E OF THE ASSESSEE BECAUSE OF DISCOUNTED SALES HAD REMAINED UNDER ASSESSED; AND (II). THE AMOUNT OF DISCOUNTS WOULD ALSO NOT SUFFER TAX IN THE HANDS OF M/S HAMILTON HOUSEWARES PVT. LTD AS ITS INCOME WAS EXEMPT FROM TAX. THE A.O FURTHER EXPRESSED HIS DOUBTS AS REGARDS THE CLAIM OF THE ASSESSEE THAT M/S HAMILTON HOUSEWARES PVT. LTD WAS BEARING THE FREIGHT COST, IN THE BACKDROP OF THE FACT THAT THE RE WAS NO SUCH OBLIGATION ON THE OTHER PARTIES. THE A.O AFTER DELIBERATING AT LENGTH ON THE DIFFERENCE IN PRICES C HARGED BY THE ASSESSEE FROM M/S HAMILTON HOUSEWARES PVT. LTD AS IN COMPARISON TO OTHER PARTIES, OBSERVED THAT AN AMOUNT OF RS. 7,72,99,520/ - EMERGED AS A RESULT OF UNDER INVOICING OF THE SALES MADE BY THE ASSESSEE TO M/S HAMILTON HOUSEWARES PVT. LTD. THUS, THE A.O BEING OF THE VIEW THAT THE ASSESSEE HAD UNDER INVOICED ITS SALES TO THE EXTENT OF RS. 7,72,99,520/ - , THEREFORE, MADE AN ADDITION OF THE SAID AMOUNT TO THE INCOME OF THE ASSESSEE. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) OBSERVED THAT A SIMILAR ISSUE WAS CARRIED IN APPEAL BEFORE HIS PREDECESSOR IN THE CASE OF THE ASSESSEE FOR THE IMMEDIATELY PRECEDING YEAR, VIZ. A.Y. 2009 - 10 . THE CIT(A) OBSERVED THAT HIS ITA NO. 5226/MUM/2015 A.Y 2010 - 11 MPL PLASTICS LTD. VS. DCIT 4 PREDECESSOR WHILE UPHOLDING THE ADDITION/DISALLOWA NCE AND DIS MISSING THE APPEAL OF THE ASSESSEE , VIDE HIS ORDER NO. IT - 264/22 - 12, DATED 14.02.2013 HAD HELD AS UNDER: THE CIT(A) IN PARA 12 OF THE APPEAL FOR AY 2008 - 09 HAS HELD THAT , I HAVE CAREFULLY CONSIDERED THE FACTS AND FIND AMPLE JUSTIFICATION FOR THE ADDITION MADE BY THE AO. THE APPELLANT HAS NOT BEEN ABLE TO EXPLAIN THE REDUCED DISCOUNTED SALE PRICE PAID TO THE SAID COMPANY TO A GROUP CONCERN VIS - A - VIS THE QUANTUM OF SALES MA DE I.E 44.33 CRS DURING THE YEAR ITSELF. THE ADDITION HAS BEEN MADE AFTER DETAILED COMPARATIVE ANALYSIS TO OTHER UNRELATED CONCERNS. THE EXPLANATION REGARDING BEARING TRANSPORTATION COST AND CARRY OUT ADVERTISEMENT ACTIVITY FOR MARKETING OF THE PRODUCTS I S NOT CONVINCING AND SATISFACTORY AND LACKS ANY EVIDENCE AS THE APPELLANT FAILED TO SUBMIT ANY DOCUMENTARY EVIDENCE WITH RESPECT TO THIS. IN SUCH A SITUATION AND ALSO IN THE FACE OF ELIGIBILITY OF OTHER UNIT FOR DEDUCTION U/S 80 - IB, THE CONCLUSION DRAWN BY THE AO CANNOT BE BRUSHED ASIDE AS IS BEING MADE OUT BY THE APPELLANT. ONUS, IN THE MATTER HAS NOT BEEN DISCHARGED BY THE APPELLANT. IN VIEW OF T H E ABOVE DISCUSSION, THE ADDITION MADE IS JUSTIFIED AND IS UPHELD. SI NCE THE FACTS AND CIRCUMSTANCES REMAIN TH E SAME, FOLLOWING THE PRINCIPLE OF JUDICIAL CONSISTENCY, THE DISALLOWANCE MADE BY THE A.O IS UPHELD. THUS, THE CIT(A) BEING OF THE VIEW THAT THE FACTS AND ISSUE INVOLVED IN THE APPEAL BEFORE HIM FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2010 - 11, REMA INED THE SAME AS W ERE THERE IN THE CASE OF THE ASSESSEE FOR THE IMMEDIATELY PRECEDING YEAR WHEREIN THE APPEAL OF THE ASSESSEE WAS DISMISSED BY HIS PREDECESSOR, THEREFORE, FOLLOWED THE SAME AND UPHELD THE DISALLOWANCE OF RS. 7,72,99,520/ - MADE BY THE A.O. 5. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAD CARRIED THE MATTER IN APPEAL BEFORE US. THE LD. AUTHORISED REPRESENTATIVE (FOR SHORT THE A.R) AT THE VERY OUTSET OF THE HEARING OF THE APPEAL SUBMITTED THAT THE ISSUE INVOLVED IN THE CASE O F THE ASSESSEE WAS SQUARELY COVERED BY THE ORDER PASSED BY A COORDINATE BENCH OF THE TRIBUNAL, VIZ. ITAT, F BENCH, MUMBAI IN THE ASSESSEES ITA NO. 5226/MUM/2015 A.Y 2010 - 11 MPL PLASTICS LTD. VS. DCIT 5 OWN CASE FOR A.YS. 2008 - 09 & 2009 - 10, IN ITA NO. 7120/MUM/2011 AND ITA NO. 2970/MUM/2013 (COPY PLACED ON RECORD). THE LD. A.R AVERRED THAT AS THE ISSUE INVOLVED IN THE PRESENT APPEAL HAD BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL, THEREFORE, THE ADDITION MADE BY THE A.O COULD NOT BE SUSTAINED. PER CONTRA, THE LD. D.R THOUGH RELIED ON THE ORDERS OF THE LOWER AUTHORITIES, BUT COULD NOT CONTROVERT THE FACT THAT THE ISSUE INVOLVED IN THE CASE WAS SQUARELY COVERED BY THE ORDER PASSED BY THE TRIBUNAL IN THE A SSESSEE S OWN CASE FOR A.YS: 2008 - 09 & 2009 - 10. 6. WE HAVE HEARD THE AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. WE HAVE DELIBERATED AT LENGTH ON THE ORDER PASSED BY THE COORDINATE BENCH OF THE TRIBUNAL, VIZ. ITAT, F BENCH, MUMBAI IN THE ASSESSEES OWN CASE FOR A.YS. 2008 - 09 & 2009 - 10, IN ITA NO. 7120/MUM/2011 AND ITA NO. 2970/MUM/2013, WHEREIN THE TRIBUNAL HAD OBSERVED AS UNDER: 2.3. W E HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT THE ASSESSEE HAD SOLD GOODS TO HPPL AT LOWER RATES, THAT IT HAD FILED EXPLANATION IN THAT REGARD TO T HE AO AND THE FAA, THAT BOTH THE AUTHORITIES REJECTED THE JUSTIFICATION FILED BY IT. PRIMA FACIE IT MAY APPEAR THAT THE TRANSACTION ENTERED INTO BY THE ASSESSEE WITH HHPL WERE NOT AT ARMS LENGTH . BUT, IF THE ENTIRE PICTURE IS LOOKED AT IT BECOME CLEAR THAT THERE WAS JUSTIFICATION FOR SELLING THE GOODS AT LOWER RATES TO HHPL . THE ASSESSEE WAS SUFFERING HUGE LOSSES WHEREAS HPPL WAS EARNING PROFIT. BY SUBMITTING THE ACCOUNTS OF BOTH THE ENTITIES THE ASSESSEE HAD DISCHARGED THE INITIAL ONUS CAST UPON IT WITH REGARD TO SELLING THE GOODS AT LOWER RATES. THEREAFTER, THE ONUS HAD SH IFTED TO THE AO AND HE HAD TO DEMONSTRATE AS TO HOW THE PAYMENT WAS EXCESSIVE OR UNREASONABLE. APART FROM THE PRESUMPTION, BASED ON THE RELATIONSHIP BETWEEN HPPL AND THE ASSESSEE COMPANY, THERE WAS NO OTHER MATERIAL BEFORE BOTH THE REVENUE AUTHORITIES TO C OME TO THE CONCLUSION THAT THE SALE PRICE CHARGED BY THE ASSESSEE FROM HHPL WAS NOT REASONABLE. IT IS A FACT THAT THE ASSESSEE HAD INCURRED NEGLIGIBLE EXPENSES UNDER THE HEADS TRANSPORTATION AND ADVERTISEMENT , I.E 1.04% AND 0.74% OF ITA NO. 5226/MUM/2015 A.Y 2010 - 11 MPL PLASTICS LTD. VS. DCIT 6 T H E SALES RESPECTIVELY . WHEREAS, HHPL HAD INCURRED SUBSTANTIAL EXPENDITURE ON ACCOUNT OF THOSE TWO HEADS. THE ASSESSEE WAS SUFFERING LOSSES AND IT IS DECIDED TO CHARGE LESSER PRICE IN LIEU OF CERTAIN EXPENSES INCURRED BY THE PURCHASER THEN THE DECISION CANNOT BE CHALLENGED BY A NYBODY. REVENUE AUTHORITIES ARE NOT ENTITLED TO STEP INTO THE SHOES OF THE ASSESSEE AND DECIDE THE ISSUE AS TO HOW TO RUN ITS BUSINESS AND WHICH EXPENSES TO INCUR OR NOT TO INCUR. THEY HAVE NOT DOUBTED THE TRANSACTION, I.E SELLING OF GOODS TO HHPL AND RECE IVING OF LOWER PRICE. THEIR OBJECTION IS ABOUT DISCOUNT ALLOWED TO THE BUYER. IN OUR OPINION, IF AN ASSESSEE FILES A PLAUSIBLE EXPLANATION FOR CHARGING LESSER OR HIGHER RATES AS COMPARED TO THE NORMAL MARKET RATES, IT HAS TO BE SEEN FROM A POINT OF VIEW OF THE BUSINESSMAN. IN THE CASE OF A RAMAN & CO.(SUPRA), THE ASSESSEE FIRM WAS FOUND TO HAVE AFFECTED SALES OF GOODS TO ITS PARTNERS, I.E MANAGER OF THE TWO HUFS. THE AO ALLEGED THAT THE ASSESSEE HAD SOLD THE GOODS TO THE FAMILIES, THAT THE FAMILIES HAD EAR NED SUBSTANTIAL PROFIT ON THE RESALE OF THE GOODS OVER AND ABOVE THE MARGIN OF PROFIT EARNED BY THE ASSESSEE, THAT THE CREATION OF THE FAMILY BUSINESS WAS MERELY A SUBTERFUGE OF THE PARTNERS OF T HE ASSESSEE TO DIVERT THE PROFITS. DECIDING THE MATTER THE HO NBLE APEX COURT HAS LAID DOWN A BASIC PRINCIPLE AND HELD AS UNDER: THE LAW DOES NOT OBLIGE A TRADER TO MAKE THE MAXIMUM PROFIT THAT HE CAN OUT OF HIS TRADING TRANSACTIONS. INCOME WHICH ACCRUES TO A TRADER IS TAXABLE IN HIS HANDS : INCOME WHICH HE COULD HAVE, BUT HAS NOT EARNED, IS NOT MADE TAXABLE AS INCOME ACCRUED TO HIM. BY ADOPTING A DEVICE, IF IT IS MADE TO APPEAR THAT INCOME WHICH BELONGED TO THE ASSESSEE HAD BEEN EARNED BY SOME OTHER PERSON, THAT INCOME MAY BE BROUGHT TO TAX IN THE HANDS OF THE ASS ESSEE, AND IF THE INCOME HAS ESCAPED TAX IN A PREVIOUS ASSESSMENT A CASE FOR COMMENCING A PROCEEDING FOR REASSESSMENT UNDER S. 147 (B) MAY BE MADE OUT. AVOIDANCE OF TAX LIABILITY BY SO ARRANGING COMMERCIAL AFFAIRS THAT CHARGE OF TAX IS DISTRIBUTED IS NOT P ROHIBITED. A TAXPAYER MAY RESORT TO A DEVICE TO DIVERT THE INCOME BEFORE IT ACCRUES OR ARISES TO HIM. EFFECTIVENESS OF THE DEVICE DEPENDS NOT UPON CONSIDERATIONS OF MORALITY, BUT ON THE OPERATION OF THE IT ACT. LEGISLATIVE INJUNCTION IN TAXING STATUTES MAY NOT, EXCEPT ON PERIL OF PENALTY, BE VOTED, BUT IT MAY LAWFULLY BE CIRCUMVENTED. IN THE CASE UNDER CONSIDERATION AO/FAA HAD FAILED TO PROVE THAT THERE WAS ANY AVOIDANCE OF ANY TAX LIABILITY. IT WAS A SIMPLE AND PLAIN CASE OF OFFERING A DISCOUNT TO THE BUY ER IN LIEU OF REDUCED TRANSPORTATION AND ADVERTISEMENT EXPENSES. IT WAS THE PROVERBIAL EK HAATH LE EK HAATH DE DEALING. ITA NO. 5226/MUM/2015 A.Y 2010 - 11 MPL PLASTICS LTD. VS. DCIT 7 WE WOULD LIKE TO REFER TO THE MATTER OF SHIVAKAM CO(SUPRA). IN THAT CASE THE ASSESSEE HELD CERTAIN SHARES WHICH WERE NOT QUOTED ON TH E STOCK EXCHANGE. IT SOLD THE SHARES TO TWO OTHER COMPANIES WHICH WERE DIRECTLY OR INDIRECTLY CONNECTED WITH IT AT PRICES CONSIDERABLY LESS THAN THEIR BREAK UP VALUE. THE TRIBUNAL FOUND THAT THE CONSIDERATION WAS NOT UNDERSTATED AND THE REAL AND MAIN OBJEC T OF THE RESPONDENT IN SELLING THE SHARES WAS TO SAFEGUARD THE SHARES FROM BEING TAKEN OVER BY THE GOVERNMENT IN SETTLEMENT OF TAX DUES. THE QUESTION WAS WHETHER THE PROVISIONS OF THE FIRST PROVISO TO SECTION 12B(2) OF THE INDIAN INCOME - TAX ACT, 1922, COUL D BE INVOKED AND THE BREAK - UP VALUE SUBSTITUTED IN THE PLACE OF THE DECLARED PRICE AND THE RESPONDENT ASSESSED TO TAX ON CAPITAL GAINS ON THAT BASIS. DISMISSING THE APPEAL FILED BY THE DEPARTMENT, THE HONBLE APEX COURT HELD AS FOLLOW: ......SINCE THE TRIBUNAL HAD FOUND THAT THE CONSIDERATION WAS NOT UNDERSTATED AND THERE WAS NO EVIDENCE DIRECT OR INFERENTIAL TO SHOW THAT THE CONSIDERATION ACTUALLY RECEIVED BY THE RESPONDENT WAS MORE THAN WHAT WAS DISCLOSED OR DECLARED BY THE RESPONDENT, THE PROVISO TO SECTION 12B(2) COULD NOT BE INVOKED...... THOUGH THE LEGISLATION IN QUESTION IS TO REMEDY THE SOCIAL EVIL AND SHOULD BE READ BROADLY AND SHOULD BE SO READ THAT THE OBJECT IS FULFILLED, YET THE ONUS OF ESTABLISHING A CONDITION OF TAXABILITY M UST BE FULFILLED BY THE REVENUE....... UNLESS THERE IS EVIDENCE THAT MORE THAN WHAT WAS STATED WAS RECEIVED, NO HIGHER PRICE CAN BE TAKEN TO BE THE BASIS FOR THE COMPUTATION OF CAPITAL GAINS. FOLLOWING THE ABOVE JUDGMENT, WE HOLD THAT THE AO/FAA HAD NOT BROUGHT ON RECORD ANY EVIDENCE TO PROVE THAT HIGHER PRICE WAS RECEIVED BY THE ASSESSEE THAN WHAT WAS STATED IN THE BOOKS OF ACCOUNT. WE WOULD ALSO LIKE TO MENTION THAT BOTH THE AUTHORITIES HAVE EMPHASISED THAT BY CHARGING LESSER PRICE THE ASSESSEE HAD HELPED THE BUYER TO C LAIM HIGHER 80IB DEDUCTION. BUT, THEY HAVE IGNORED THE BASIC FACT THAT DEDUCTION UNDER THIS SECTION IS AVAILABLE ONLY FOR MANUFACTURED GOODS. THUS, THE ONE OF THE REA SONS FOR REJECTING THE CLAIM OF THE ASSESSEE HAS NO BASIS AT ALL. WE WOULD ALSO LIKE TO ME NTION THAT THE FACTS OF LAKEWOOD (SUPRA) ARE TOTALLY DIFFERENT FROM THE FACTS OF THE CASE UNDER CONSIDERATION .IN THAT MATTER THE ASSESSEE HAD SOLD FLATS TO DIRECTORS AND SHARE HOLDERS AND THERE WAS VAST DIFFERENCE IN THE MARKET PRICE AND THE SALE PRICE. I T WAS NOT A CASE OF CHARGING LESSER PRICE FOR SHIFTING BURDEN OF CERTAIN EXPENSES TO THE BUYER. 7 . WE HAVE DELIBERATED ON THE FACTS AND THE ISSUE INVOLVED IN THE CASE BEFORE US IN THE BACKDROP OF THE OBSERVATIONS OF THE COORDINATE BENCH OF THE TRIBUNAL, VIZ. ITAT, F BENCH, MUMBAI , RECORDED IN THE ITA NO. 5226/MUM/2015 A.Y 2010 - 11 MPL PLASTICS LTD. VS. DCIT 8 ASSESSEES OWN CASE FOR A.YS. 2008 - 09 & 2009 - 10, IN ITA NO. 7120/MUM/2011 AND ITA NO. 2970/MUM/2013. WE FIND THAT THE CIT(A) WHILE DISPOSING OF THE APPEAL OF THE ASSESSEE HAD RELIED ON THE ORDER PASSED BY HIS PREDECESSOR IN THE ASSESSES OWN CASE FOR A.Y. 2009 - 10, WHO FOLLOWING THE ORDER PASSED ON THE ISSUE UNDER CONSIDERATION IN A.Y. 2008 - 09 HAD DECIDED THE ISSUE AGAINST THE ASSESSEE. WE ARE OF THE CONSIDERED VIEW THAT NOW WHEN THE RESPECTIVE ORDERS OF THE CIT( A) FOR A.YS: 2008 - 09 & 2009 - 10 HAD BEEN SET ASIDE BY THE TRIBUNAL, VIZ. ITAT, F BENCH, MUMBAI, IN ITA NO. 7120/MUM/2011 AND ITA NO. 2970/MUM/2013, DATED. 01.09.2017, THEREFORE, THE ORDER OF THE CIT(A) FOR THE YEAR UNDER CONSIDERATION, VIZ. A.Y. 2010 - 11 SUSTAINING THE ADDITION/DISALLOWANCE OF RS. 7,72,99,520/ - CANNOT BE SUSTAINED. WE THUS SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE ADDITION/DISALLOWANCE OF RS. 7,72,99.520/ - . 8. THE APPEAL OF THE ASSESSEE IS ALLOWED IN TERMS OF OUR AFORESAID OBSER VATIONS. ORDER PRO NOUNCED IN THE OPEN COURT ON 27 /12/2017 SD/ - SD/ - ( G.S PANNU) ( RAVISH SOOD ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 27 .12 .2017 * PS. ROHIT KUMAR ITA NO. 5226/MUM/2015 A.Y 2010 - 11 MPL PLASTICS LTD. VS. DCIT 9 / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI