ADDL CIT RG 4(2), MUMBAI V. SHREEPATI HOLDINGS & FINANCE P. LTD, MUMBAI

ITA 5234/MUM/2009

• Counselvise Citation: 523419914 RSA 2009
• Duration Of Justice: 2 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 08-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 11-09-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Keywords: Business expenditure; Opportunity of being heard; Deemed dividend; Revised return
• Section: 143(3); 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE SHRI N. V. VASUDEVAN, JM AND SHRI R.K. PANDA , AM ITA NO. : 5234/MUM/2009 ASSESSMENT YEAR : 2006-07 THE ACIT, CIR. 4(2), ROOM NO.642, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020 VS. M/S. SHREEPATI HOLDINGS & FINANCE PVT LTD. 401, 4 TH FLOOR, MEHTA MAHAL, 15 TH MATHEW ROAD, OPERA HOUSE, MUMBAI PAN NO: AAACS 8111 R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.K.B. MENON RESPONDENT BY : SHRI HIRO RAI DATE OF HEARING : 08 .1 2 .2011 DATE OF PRONOUNCEMENT : 30.12.2011 ORDER PER R. K. PANDA (AM) : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 08.06.2009 PASSED BY THE LD. CIT(A)-IV, MUMBAI RELA TING TO ASSESSMENT YEAR 2006-07. 2. IN GROUND OF APPEAL NO.1, THE REVENUE HAS CHALLE NGED THE ORDER OF THE LD. CIT(A) IN DELETING THE DISALLOWANCE MADE BY THE AO IN RESPECT OF VSAT, LEASE LINE AND TRANSACTIONS CHARGES U/S.40(A) (IA). 2.1 AFTER HEARING BOTH THE SIDES WE FIND THE AO DIS ALLOWED THE VSAT, LEASE LINE AND TRANSACTIONS CHARGES U/S.40(A)(IA) O N THE GROUND THAT ITA NO : 5234/MUM/2009 M/S. SHR EEPATI HOLDINGS & FINANCE PVT. LTD. 2 THESE ARE COMPOSITE CHARGES FOR PROFESSIONAL AND TE CHNICAL SERVICES RENDERED BY THE STOCK EXCHANGE TO ITS MEMBERS AND T HE ASSESSEE HAS FAILED TO DEDUCT THE TDS THERE ON. 3. IN APPEAL, THE LD. CIT(A) DELETED THE ADDITION M ADE BY THE AO ON ACCOUNT OF VSAT AND LEASE LINE CHARGES ON THE GROUN D THAT THESE ARE REIMBURSEMENT TO THE STOCK EXCHANGE IN LIEU OF INFR ASTRUCTURE AND FACILITIES PROVIDED BY THE STOCK EXCHANGE. THESE AR E NOT FREE FOR TECHNICAL SERVICES AND ARE ALSO NOT FOR ANY WORK DONE BY NSE FOR THE MEMBER BROKER. WE FIND THE HON'BLE JURISDICTIONAL H IGH COURT IN THE CASE OF CIT VS. ANGEL CAPITAL & DEBIT MARKET LTD. I N ITA NO.475 OF 2011 ORDER DATED 28.06.2011 HAS UPHELD THE DECISION OF T HE TRIBUNAL THAT VSAT AND LEASE LINE CHARGES PAID BY THE ASSESSEE TO THE STOCK EXCHANGE ARE MERELY REIMBURSEMENT OF THE CHARGES PAID / PAYA BLE BY THE STOCK EXCHANGE TO THE DEPARTMENT OF TELECOMMUNICATION. SI NCE THE VSAT AND LEASE LINE CHARGES PAID BY THE ASSESSEE DO NOT HAVE ANY ELEMENT OF INCOME, DEDUCTING TAX WHILE MAKING SUCH PAYMENTS DO NOT ARISE. THE ABOVE VIEW OF THE HON'BLE JURISDICTIONAL HIGH COURT HAS BEEN AGAIN REITERATED IN THE CASE OF CIT VS. M/S. THE STOCK AN D BOND TRADING COMPANY IN ITA NO.4117 OF 2010 ORDER DATED 14.10.20 11. IN VIEW OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT W E DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN DELETIN G THE DISALLOWANCE MADE IN RESPECT OF VSAT AND LEASE LINE CHARGES. ACCORDIN GLY, THE SAME IS UPHELD. 4. SO FAR AS THE ISSUE RELATING TO DELETION OF DISA LLOWANCE OF TRANSACTION CHARGES U/S.40(A)(IA) IS CONCERNED, WE FIND AN IDENTICAL ISSUE HAD COME UP BEFORE THE TRIBUNAL IN THE CASE OF ITO VS. M/S. GRISHMA SECURITIES PVT. LTD. VIDE ITA NO.6162/MUM/2010 FOR THE ASSESSMENT YEAR 2007-08. WE FIND THE TRIBUNAL VIDE ORDER DATED 30.11.2011 AT PARA ITA NO : 5234/MUM/2009 M/S. SHR EEPATI HOLDINGS & FINANCE PVT. LTD. 3 6 OF THE ORDER HAS ADJUDICATED THE ISSUE AND RESTOR ED THE ISSUE TO THE FILE OF THE AO WITH CERTAIN DIRECTIONS WHICH READS AS UN DER: 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PER USING THE RELEVANT MATERIAL ON RECORD, WE FIND MERIT IN T HE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE DI SALLOWANCE MADE BY THE AO ON ACCOUNT OF TRANSACTION CHARGES BY INVOKING SECTION 40(A)(IA) HAS BEEN FINALLY HELD TO BE UNSUS TAINABLE BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF KOTAK SECURITIES LTD. (SUPRA) ON THE GROUND THAT THE ASSESSEE, IN TH E FACTS AND CIRCUMSTANCES INVOLVED IN THAT CASE, HAD BONAFIDE R EASON TO BELIEVE THAT THE TAX WAS NOT DEDUCTIBLE AT SOURCE F ROM THE PAYMENT OF TRANSACTION CHARGES U/S. 194J. ALTHOUGH THE LEARNED CIT(A) COUNSEL FOR THE ASSESSEE HAS TRIED T O DEMONSTRATE BEFORE US THAT THE RELEVANT FACTS INVOL VED IN THE PRESENT CASE ARE SIMILAR TO THE CASE OF KOTAK SECUR ITIES LTD. (SUPRA), WE ARE OF THE VIEW THAT THIS STAND OF THE ASSESSEE REQUIRES VERIFICATION SINCE THIS ASPECT OF THE MATT ER HAS COME UP FOR CONSIDERATION FOR THE FIRST TIME BEFORE THE TRIBUNAL. WE, THEREFORE, CONSIDER IT FAIR AND PROPER AND IN THE I NTEREST OF JUSTICE TO RESTORE THIS ISSUE TO THE FILE OF THE AO FOR VERIFYING THE STAND OF THE ASSESSEE FROM THE RELEVANT RECORD AND DECIDE THE SAME AFRESH ON SUCH VERIFICATION IN THE LIGHT O F GUIDELINES LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN PARAG RAPH NO.31 OF THE JUDGMENT AS EXTRACTED ABOVE. 4.1 RESPECTFULLY FOLLOWING THE DECISION OF THE TRIB UNAL CITED (SUPRA), WE RESTORE THE ISSUE OF TRANSACTION CHARGES TO THE FIL E OF THE AO WITH THE DIRECTION TO DECIDE THE ISSUE AFRESH IN THE LIGHT O F THE DECISION CITED (SUPRA) AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND OF APPEAL NO. 1 I S ACCORDINGLY PARTLY ALLOWED FOR STATISTICAL PURPOSE. 5. THE GROUND OF APPEAL NO. 2 BY THE REVENUE READS AS UNDER :- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING ADDITION MADE ON ACCOUNT OF PENALTY OF `. 9,07,336/- ON VIOLATION OF THE BYELAWS OF THE STOCK EXCHANGE, WHICH ARE STATUTORY IN CHARACTER AN D THUS AMOUNTED TO INFRINGEMENT OF LAW. ITA NO : 5234/MUM/2009 M/S. SHR EEPATI HOLDINGS & FINANCE PVT. LTD. 4 6. AFTER HEARING BOTH THE SIDES WE FIND THE ISSUE R ELATING TO PENALTY PAID TO STOCK EXCHANGE FOR VIOLATION OF BYELAWS IS DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HON'BLE JURISDICTIO NAL HIGH COURT IN THE CASE OF CIT VS. ANGEL CAPITAL & DEBIT MARKET LTD. ( SUPRA). WE FIND THE HON'BLE HIGH COURT AT PARA 3 OF THE ORDER HAS UPHEL D THE FINDING GIVEN BY THE TRIBUNAL THAT AMOUNT PAID AS PENALTY WAS ON ACC OUNT OF IRREGULARITIES COMMITTED BY THE ASSESSEES CLIENTS. SUCH PAYMENTS ARE NOT ON ACCOUNT OF ANY INFRACTION OF LAW AND HENCE ALLOW ABLE AS BUSINESS EXPENDITURE. IN SUCH A CASE, THE EXPLANATION TO SEC TION 37 WOULD NOT APPLY. RESPECTFULLY, FOLLOWING THE DECISION OF THE JURISDICTIONAL HIGH COURT (SUPRA) WE HOLD THAT PENALTY PAID TO STOCK EX CHANGE FOR VIOLATION OF THE BYELAWS IS ALLOWABLE AS BUSINESS EXPENDITUR E AND EXPLANATION TO SECTION 37 WOULD NOT APPLY. WE ACCORDINGLY, UPHOLD THE ORDER OF THE LD. CIT(A) ON THIS ISSUE. THE GROUND RAISED BY THE REVE NUE IS ACCORDINGLY, DISMISSED. 7. THE GROUNDS OF APPEAL NO.3 READS AS UNDER : 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF `. 84,36,443/- U/S.2(22)(E) IN TREATING THE AMOUNTS AS RECEIVED FROM SISTER CONCERNS AS MONEY RECEIVED IN NORMAL CO URSE OF TRADING BUSINESS WHEN IN FACT THERE WAS NO DIRECT N EXUS BETWEEN THE AMOUNT RECEIVED AND LIABILITY EXISTING. 8. AFTER HEARING BOTH THE SIDES WE FIND THE ASSESSE E HAD RECEIVED LOAN OF `. 33,84,59,861/- FROM M/S. INDO UNIQUE TRADING (P) LT D. AND `. 2,15,20,000/- FROM M/S. SHREEPATI COMMODITIES P. LT D. BOTH OF WHICH ARE SISTER CONCERNS OF THE ASSESSEE. THE AO ANALYSE D THE SHARE HOLDING PATTERN OF THE ASSESSEE COMPANY AND THE ABOVE RELAT ED CONCERNS AND FOUND THAT SHRI PREM KEDIA, A SHAREHOLDER IN THE AS SESSEE COMPANY, WAS HOLDING 63.29% OF THE TOTAL EQUITY IN INDO UNIQUE. SIMILARLY, MRS. KUSUM KEDIA WAS HOLDING 25.53% IN INDO UNIQUE. BOTH THESE SHAREHOLDERS WERE ITA NO : 5234/MUM/2009 M/S. SHR EEPATI HOLDINGS & FINANCE PVT. LTD. 5 ALSO HOLDING 50.6% AND 49.4% IN SHREEPATI COMMODITY RESPECTIVELY. BOTH THESE SHAREHOLDER OF THE ASSESSEE COMPANY HAD A SUBSTANTIAL INTEREST IN THE ASSESSEE COMPANY, WHILE THEY HAD BE NEFICIAL INTEREST IN THE COMPANIES FROM WHICH THE ASSESSEE HAS RECEIVED LOANS. THE AO, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY THE AMOUNT OF LOAN RECEIVED FROM THE ABOVE CONCERNS BE NOT TREATED AS DEEMED DIVIDEND U/S.2(22)(E) IN THE HANDS OF THE ASSESSEE COMPANY. REJECTING THE EXPLANATION GIVEN BY THE ASSESSEE AND DISTINGUISHIN G THE CASE LAWS CITED BEFORE HIM, THE AO PROCEEDED TO MAKE ADDITION U/S.2 (22)(E) OF THE I.T. ACT. HE NOTED THAT M/S. INDO UNIQUE TRADING (P) LTD . HAS FREE RESERVES OF `. 73,92,349/- AS ON 31.03.2006. SIMILARLY, SHREEPAIT COMMODITIES (P) LTD. HAS A FREE RESERVE OF `. 10,44,834/-. AFTER ANALYZING THE DETAILS, THE AO MADE AN ADDITION OF `. 84,36,443/- TO THE TOTAL INCOME OF THE ASSESSEE U/S.2(22)(E) OF THE I.T. ACT. 9. IN APPEAL, THE LD. CIT(A) DELETED THE ADDITION B Y HOLDING AS UNDER:- 9.2 THE TOTAL TURNOVER BY INDO UNIQUE TRADING (P) LTD. AS A CLIENT OF THE APPELLANT, IN CASH SEGMENT IS AT `. 3,00,31,965/- AND IN F & O SEGMENT IS AT `. 25,90,38,429/-. THIS ISSUE WAS EXAMINED IN DETAIL IN COURSE OF APPEAL PROCEEDINGS IN APPELLANTS CASE FOR A.Y. 05-06 IN THE ORDER DATED 15.12.2008 FROM PARA 4, PAGE 6 TO PARA 4.18, PAGE 18 OF THE AP PEAL ORDER. AS THE TRANSACTIONS OF M/S. SHREEPATI HOLDIN GS & FINANCE P. LTD. AND M/S. INDO UNIQUE TRADING (P) LT D. WERE IN THE REGULAR COURSE OF BUSINESS AND TRANSFER OF MONE Y HAS TAKEN PLACE NOT BY WAY OF ADVANCE OR LOAN, THE PR OVISIONS OF SECTION 2(22)(E) IS NOT ATTRACTED. GROUND 9 IS, THE REFORE, ALLOWED. 10. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 11. AFTER HEARING BOTH THE SIDES WE FIND THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY T HE DECISION OF THE ITA NO : 5234/MUM/2009 M/S. SHR EEPATI HOLDINGS & FINANCE PVT. LTD. 6 SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ACIT V S. BHAUMIK COLOR (P) LTD. REPORTED IN 118 ITD 1 (SPECIAL BENCH) ACCORDIN G TO WHICH DEEMED DIVIDEND CAN BE ASSESSED ONLY IN THE HANDS OF A PER SON WHO IS A SHAREHOLDER OF LENDER COMPANY AND NOT IN HANDS OF A PERSON OTHER THAN A SHAREHOLDER. SINCE, THE ASSESSEE IS NOT A SHAREHOLD ER OF THE ABOVE TWO COMPANIES, NOR THE ABOVE TWO COMPANIES ARE THE SHAR EHOLDER OF THE ASSESSEE COMPANY, THEREFORE, THE QUESTION OF DEEMED DIVIDEND IN THE HANDS OF THE ASSESSEE COMPANY DOES NOT ARISE. IN TH IS VIEW OF THE MATTER, THE GROUND RAISED BY THE REVENUE IS DISMISSED. 12. THE GROUND OF APPEAL NO.4 BY THE REVENUE READS AS UNDER:- 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING TO ALLOW THE SUM OF `. 54,71,019/- WHICH THE ASSESSEE CLAIMED ON A LETTER THAT IT WAS WRONGLY INCLUDED IN THE DECLARED TOTAL INCOME U/S.40(A)(IA). I) THE LD. CIT(A) HAS OVERLOOKED THE NON APPLICATION O F THE EXPLANATION 1 TO SEC. 194H WHICH IS APPLICABLE ON COMMISSION AND BROKERAGE AND NOT ON SUB-BROKERAGE O F `. 54,71,019/-. II) THE LD. CIT(A) HAS FURTHER DECIDED THE ABOVE ISSUE AGAINST RULE 46A, WITHOUT AFFORDING OPPORTUNITY TO THE AO. III) THE LD. CIT(A) HAS OVERLOOKED THE FACT THAT THE ASS ESSEE DID NOT FILE REVISED BEFORE THE AO TO EXCLUDE THE DISALLOWANCE OF `. 54,71,019/- U/S.40(A)(IA). 13. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE ITSELF ADDED AN AMOUNT OF `. 56,34,813/- IN THE COMPUTATION OF INCOME FILED WITH THE RETURN OF THE INCOME. DURING THE COURSE OF ASSESSME NT PROCEEDINGS VIDE LETTER DATED 03.11.2008 IT WAS SUBMITTED BEFORE THE AO THAT DISALLOWANCE OF `. 54,71,019/- IN RESPECT OF SUB-BROKERAGE PAID ON STT IS NOT COVERED BY THE PROVISION OF SECTION 194H. IT WAS SUBMITTED THAT THE AMOUNT OF ITA NO : 5234/MUM/2009 M/S. SHR EEPATI HOLDINGS & FINANCE PVT. LTD. 7 `. 55,13,512/- BE REDUCED FROM THE RETURN OF THE INCOM E. THE ORDER OF THE AO IS SILENT ON THIS ISSUE. 14. BEFORE THE LD. CIT(A), THE ASSESSEE MADE DETAIL ED SUBMISSIONS AND RELIED ON VARIOUS CASE LAWS TO THE PROPOSITION THAT THE APPELLATE AUTHORITIES CAN ENTERTAIN A CLAIM WHICH WAS NOT CLA IMED IN THE ORIGINAL RETURN OR REVISED RETURN. IT WAS SUBMITTED THAT THE DISALLOWANCE OF `. 54,71,019/- BEING SUB-BROKERAGE PAID FOR THE SERVIC ES IN CONNECTION WITH THE SECURITIES IS NOT SUBJECT TO THE PROVISION OF TDS AS PROVIDED U/S.194H. THEREFORE, THE SAME IS OUTSIDE THE PURVIE W OF DISALLOWANCE AS PROVIDED U/S.40(A)(IA). 14.1 BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSE E, THE LD. CIT(A) DELETED THE ADDITION BY HOLDING AS UNDER :- I HAVE GONE THROUGH THE SUBMISSIONS OF THE APPELL ANT. THE PROVISIONS OF SECTION 194H IS NOT APPLICABLE IN CAS E OF BROKERAGE RELATING TO SECURITIES, AS EXPLANATION (I ) TO SECTION 194 H SPECIFICALLY EXCLUDES IT. AS TDS WAS NOT DEDU CTIBLE ON THE PAYMENTS OF SUB-BROKERAGE BY THE APPELLANT RELA TING TO SECURITIES OF `. 56,34,813/- AND THE PROVISIONS OF SECTION 40(A)(IA) IS, THEREFORE, NOT APPLICABLE ON THE SAME . THE APPELLANT MADE A MISTAKE WHILE FILING ITS RETURN OF INCOME AND DURING THE ASSESSMENT PROCEEDINGS, BUT IT SUBMI TTED BEFORE THE A.O. THAT THE SUM OF `. 56,43,813/- IS ALLOWABLE AS THE PROVISIONS OF SECTION 40(A)(IA) IS NOT APPLICAB LE, BUT THE AO DID NOT ADJUDICATE THIS ISSUE. THE CBDT CIRCULAR NO .14 DATED 11.04.55 CLEARLY STATES THAT THE OFFICER OF THE DEP ARTMENT MUST NOT TAKE ADVANTAGE OF THE IGNORANCE OF AN ASSE SSEE AND THE DUTY TO ASSIST A TAX PAYER IN A REASONABLE WAY. FURTHER, THE PROVISIONS OF SECTION 143(3) CASTS UPON DUTY ON THE A.O. TO TAKE INTO ACCOUNT ON THE EVIDENCES PRODUCED BY ASSE SSEE AND ALL THE RELEVANT MATERIAL WHICH HE HAS GATHERED AND MAKE AN ASSESSMENT OF TOTAL INCOME OR LOSS OF THE ASSESSEE AND DETERMINE THE SUM PAYABLE BY THE ASSESSEE OR REFUND OF ANY AMOUNT DUE TO THE ASSESSEE ON THE BASIS OF THAT ASS ESSMENT. THE A.O. IS REQUIRED TO CONSIDER ALL THE FACTS AND MAKE THE ASSESSMENT OF TOTAL INCOME CORRECTLY. THE A.O. IS, THEREFORE, DIRECTED TO ALLOW THE SUM OF `. 54,71,019/-, WHICH THE ITA NO : 5234/MUM/2009 M/S. SHR EEPATI HOLDINGS & FINANCE PVT. LTD. 8 APPELLANT INCLUDED IN ITS INCOME U/S.40(A)(IA) BY M ISTAKE. GROUND 8 IS ALLOWED. 15. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 16. THE LD. DR SUBMITTED THAT THE MATTER MAY BE REM ANDED TO THE FILE OF THE AO FOR ADJUDICATION, SINCE THE ORDER OF THE AO IS SILENT ON THIS ISSUE. 16.1 THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE ORDER OF THE LD. CIT(A) IS CRYSTAL CLEAR. THE LD. CIT(A) HAS GIVEN A CLEAR FINDING THAT THE PROVISIONS OF SECTION 194H I S NOT APPLICABLE IN CASE OF BROKERAGE RELATED TO SECURITIES AND PROVISIONS O F SECTION 40(A)(IA) IS NOT APPLICABLE. THEREFORE, THE MATTER NEED NOT BE RESTO RED TO THE FILE OF THE AO AND THE GROUND RAISED BY THE REVENUE SHOULD BE D ISMISSED. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE B Y BOTH THE SIDES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND FROM THE ORDER OF T HE LD. CIT(A) THAT THE ASSESSEE ITSELF ADDED AN AMOUNT OF `. 56,34,813/- IN THE COMPUTATION OF INCOME FILED ALONG WITH THE RETURN OF THE INCOME. D URING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE VIDE LETTER DAT ED 03.11.2008 SUBMITTED BEFORE THE AO THAT THE DISALLOWANCE OF `. 54,71,019/- IN RESPECT OF SUB-BROKERAGE PAID ON STT IS NOT COVERED BY THE PROVISIONS OF SECTION 194H. HOWEVER, WE FIND THE ORDER OF THE AO IS SILENT ON THIS ISSUE. UNDER THESE CIRCUMSTANCES, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE TH E ISSUE AFRESH KEEPING IN MIND THE VARIOUS DECISIONS CITED BEFORE THE LD. CIT (A). NEEDLESS TO SAY, THE AO SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. WE HOLD AN D DIRECT ACCORDINGLY. THE GROUND RAISED BY THE REVENUE IS ALLOWED FOR STA TISTICAL PURPOSE. ITA NO : 5234/MUM/2009 M/S. SHR EEPATI HOLDINGS & FINANCE PVT. LTD. 9 18. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THIS 30 TH DAY OF DECEMBER, 2011. S D/ - S D/ - ( N. V. VASUDEVAN ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTAT MEMBER MUMBAI, DT: 30/12/2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, E- BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI