M/s. Maithan International, Kolkata V. ACIT, Circle - 56, Kolkata

ITA 559/KOL/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6804 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 12-05-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 16-04-2009
• Court: TRIBUNAL
• Department Lawyers: D R SINDHAL
• Keywords: Transfer pricing; Charitable institution; International transaction; Accommodation entries; Assessment record
• Section: 143(3); 92F; 92A; 263; 92

Judgement Text

1 , C , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- C, KOL KATA [ , ,, , . .. . . .. . , , , , !' ] BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER & SRI C.D. RAO, ACCOUNTANT MEMBER # # # # / ITA NO. 559 (KOL) OF 2009 $% &' / ASSESSMENT YEAR 2004-05 M/S. MAITHAN INTERNATIONAL, KOLKATA. (PAN-AAEFM9873F) ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE-56, KOLKATA.. (*+ / APPELLANT ) - $ - - VERSUS -. (./*+/ RESPONDENT ) *+ 0 1 !/ FOR THE APPELLANT: / SRI RAVI TULSIYAN ./*+ 0 1 ! / FOR THE RESPONDENT: / SRI D.R. SINDHAL !2 / ORDER ( . .. . . .. . ), !' (C.D. RAO), ACCOUNTANT MEMBER : THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 31.12.2009 OF LD. C.I.T., CENTRAL CIRCLE-VI, KOLKATA PASSED U/S. 263 OF THE ACT FOR ASSESSMENT YEAR 2004- 05. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : - 1) THAT THE ID. CIT ERRED IN PASSING AN ORDER U/S .263 OF THE I.T. ACT, 1961 ON THE BASIS OF SUSPICION, CONJECTURE AND SURMISES. 2) THAT THE ID. CIT ERRED IN HOLDING THAT THE A. O. HAD NOT VERIFIED THE APPLICABILITY OF SECTION 92 OF THE INCOME TAX ACT, 1961, COMPLETE LY DISREGARDING THE FACT THAT THERE WAS NOTHING ON RECORD TO SHOW THAT ANY TRANSA CTION HAD TAKEN PLACE WITH ANY ASSOCIATED ENTERPRISE AND THEREFORE, THE INITIA TION OF PROCEEDING ITSELF WAS NOT AS PER LAW AND PURELY ON CONJECTURES AND SURMIS ES. 3) THAT THE LD. CIT ERRED IN HOLDING THAT THE A.O . HAD NOT CONDUCTED SUFFICIENT ENQUIRY IN RESPECT OF THE LOANS TAKEN BY THE ASSESS EE DURING THE YEAR COMPLETELY DISREGARDING THE FACT THAT THE A.O. HAD MADE SUFFIC IENT ENQUIRY AND HAD ACCEPTED THE LOAN AS BEING GENUINE. 4) THAT THE LD. CIT ERRED IN HOLDING THAT SUFFIC IENT ENQUIRY WAS NOT DONE IN THE CASE OF LOANS, WHEN THE A.O. HAD GIVEN A CATEGORICAL FIN DING IN THE ASSESSMENT ORDER REGARDING ENQUIRY HAVING BEEN CONDUCTED THROUGH THE DEPARTMENTAL INSPECTOR. 2 5) THAT THE LD. CIT ERRED IN SETTING ASIDE THE O RDER OF THE AO AND DIRECTING TO FRAME THE ASSESSMENT DE NOVO ONLY ON THE BASIS OF HER CHA NGE IN OPINION AND SUSPICIOUS WHICH IS CLEARLY CONTRARY TO LAW. 2. THE FACTS WHICH ARE REQUISITE TO BE STATED FOR ADJU DICATION OF THE APPEAL ARE THAT THE ASSESSEE FILED ITS RETURN ON 20/9/2004 DECLARIN G INCOME OF RS.99,52,040/-, WHICH WAS ASSESSED BY THE A.O. VIDE ASSESSMENT ORDER PASS ED U/S. 143(3) OF THE ACT DATED 15/12/2006 AT RS. 1,15,83,589/-. THEREAFTER, ON GO ING THROUGH THE ASSESSMENT RECORDS OF THE ASSESSEE, THE LD. C.I.T. OBSERVED THAT THE A .O. HAD FRAMED THE ASSESSMENT WITHOUT PROPER ENQUIRIES, CAUSING THE ASSESSMENT OR DER TO BE ERRONEOUS. SHE, THEREFORE, ISSUED NOTICE U/S. 263 OF THE ACT DATED 23/29-12-20 08 REFERRING THEREIN THE FOLLOWING TWO DEFECTS IN THE ORDER PASSED U/S. 143(3) OF THE ACT WHICH, IN HER OPINION, HAS RENDERED THE ASSESSMENT ORDER TO BE ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF REVENUE:- (A) THE EXPORT TURNOVER OF THE ASSESSEE-COMPANY IS RS.11.97 CRORES AND THE SAME HAS BEEN ACCEPTED WITHOUT MAKING ANY REFERENCE TO TRANS FER PRICING OFFICER FOR DETERMINATION OF ARMS LENGTH PRICE AS REQUIRED UNDE R SECTION 91 OF THE I.T. ACT. THERE IS NOTHING ON RECORD TO SUGGEST THAT PROVISIO NS OF SECTION 92 TO 92F ARE APPLICABLE IN THIS CASE OR THAT THE EXPORT SALES WE RE MADE AT A LOWER PRICE. IN FACT, NO ENQUIRIES WERE MADE AND THERE ARE NO DETAILS AVA ILABLE ON RECORD IN THIS RESPECT. (B) IT IS ALSO NOTICED THAT THE A.O. HAS FAILED TO EXAMINE THE GENUINENESS AND CREDITWORTHINESS OF THE LOAN CREDITORS. 3. IN RESPONSE TO THE SAID NOTICE U/S. 263 OF THE ACT, THE ASSESSEE MADE POINT-WISE SUBMISSIONS BEFORE THE LD. C.I.T. AND THE CONTENTS OF THE SAME HAVE BEEN MENTIONED AT PAGE-2 OF LD. C.I.T.S ORDER AND THE SAME ARE REPRO DUCED BELOW :- 4. IN RESPECT OF THE FIRST POINT REGARDING REFEREN CE TO TRANSFER PRICING OFFICER FOR DETERMINATION OF ALP U/S 92 OF THE I.T. ACT, IT WAS SUBMITTED BY THE LD. AR. THAT NO PART OF THE TOTAL EXPORT TURNOVER AMOUNTING TO RS.1 1.97 CRORES RELATE TO ANY SALES MADE TO ANY ASSOCIATED CONCERN. THE A.R. HAS SUBMIT TED THAT NONE OF THE CONDITION AS SPECIFIED IN SEC. 92A ARE FULFILLED AND NONE OF THE PARTIES TO WHOM SALE WERE MADE ARE ASSOCIATED ENTERPRISES OF THE ASSESSEE. TH E A.R. HAS ALSO SUBMITTED A LIST OF THE PARTIES TO WHOM SALES WERE MADE. THIS IS ALR EADY AVAILABLE ON RECORD. THE A.R. HAS ALSO SUBMITTED A CERTIFIED LIST OF THE ASS OCIATED ENTERPRISES DURING THE FINANCIAL YEAR 2003-04. ASSESSEE HAS CERTIFIED THAT DURING THE YEAR UNDER REFERENCE, THE FIRM HAD NOT ENTERED INTO ANY INTERNATIONAL TRA NSACTIONS INVOLVING PURCHASE OR SALE OF ANY GOODS OR ANY SERVICES OR FACILITIES WIT H ANY CONCERN WHICH WAS AN ASSOCIATED ENTERPRISE WITHIN THE MEANING OF SEC. 92 A OF INCOME TAX ACT. 3 5. AS REGARDS THE SECOND POINT, REGARDING GENUINEN ESS OF THE SOURCES OF UNSECURED LOANS FROM SIX PARTIES, IT WAS SUBMITTED BY THE LD. AR. THAT THE ASSESSEE HAD DULY FILED ALL THE LOAN CONFIRMATIONS FROM THE LOAN CRED ITORS WHICH CONTAIN THEIR NAMES, ADDRESS AND PERMANENT ACCOUNT NUMBERS. THE DETAILS OF PAYMENTS OF LOAN, INTEREST THEREON, ETC. ARE ALSO CLEARLY APPEARING FROM THE S AID LOAN CONFIRMATIONS. IT IS FURTHER SUBMITTED THAT THE A.O. DEPUTED HIS INSPECT OR TO VERIFY THE FRESH LOANS TAKEN DURING THE YEAR AND THE REPORT FILED BY THE SAID IN SPECTOR WAS ALSO PLACED ON RECORD. THEREFORE THE OBJECTION RAISED IN THE ABOVE MENTION ED NOTICE REGARDING NON- EXAMINATION OF THE LOANS BY THE A.O. IS NOT CORRECT . IN ADDITION TO THE ABOVE SUBMISSIONS, THE LD. A/R O F THE ASSESSEE CHALLENGED THE VALIDITY OF THE PROCEEDINGS U/S. 263 OF THE ACT. H E SUBMITTED BEFORE THE LD. C.I.T. THAT JURISDICTION U/S 263 OF THE L.T. ACT CAN BE EXERCIS ED ONLY IN A CASE WHERE AN ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AS WELL AS PREJU DICIAL TO THE INTEREST OF REVENUE. IN SUPPORT OF HIS SUBMISSIONS, THE LD. A/R CITED THE F OLLOWING DECISIONS :- A) JAGADHRI ELECTRIC SUPPLY AND INDUSTRIAL CO. (1 987) 166 1TR 143 (PUNJ) B) MALABAR INDUSTRIAL CO. LTD. (SC) (2000) 243 IT R 83 C) TRUSTEES ANUPAM CHARITABLE TRUST (RE]) (1987) 167 ITR 129 D) GOYAL PRIVATE FAMILY SPECIFIC TRUST (ALL) (198 8) 171 ITR 698 E) SAKTHI CHARITIES (2000) 160 CTR (MAD) 107 F) GABRIEL INDIA LTD. (BORN) (1993) 203 1TR 108 4. THE LD. C.I.T. AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE AND EVIDENCES ON RECORD CAME TO THE CONCLUSION THAT THE A.O. FAIL ED TO MAKE PROPER ENQUIRIES IN RESPECT OF THE TWO POINTS REFERRED TO ABOVE. APPLY ING THE RATIO OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS. CIT [243 ITR 83 (SC)], THE LD. C.I.T. HELD THE ASSESSMENT ORDER PASSED BY THE A.O. U/S. 143(3) OF THE ACT DATED 15/12/2006 TO BE ERRONEOUS AND PREJUDICIAL TO THE I NTEREST OF REVENUE. SHE, THEREFORE, SET ASIDE THE ASSESSMENT ORDER AND DIRECTED THE A.O . TO FRAME THE ASSESSMENT DE NOVO WITH THE FOLLOWING OBSERVATIONS :- 8. THE A.R. HAS SUBMITTED A LIST OF ASSOCIATED EN TERPRISES AS WELL AS A LIST OF CUSTOMERS, TO WHOM EXPORTS WERE MADE. THE LIST OF C USTOMER WAS ALSO FILED DURING ASSESSMENT PROCEEDINGS, BUT NO DETAILS OF ASSOCIATE D ENTERPRISES OF THE ASSESSEE WAS FILED. FROM THE MERE LIST NO CONCLUSION CAN BE DRAW N WHETHER ANY INTERNATIONAL TRANSACTION HAS BEEN MADE WITH THE ASSOCIATED ENTER PRISES DURING THE YEAR. IN MY OPINION, A DETAILED EXAMINATION OF THE ACCOUNTS OF THE ASSESSEE IS NECESSARY IN THIS REGARD TO DETERMINE WHETHER A REFERENCE WAS NECESSA RY U/S 92 OF THE INCOME TAX 4 ACT. SUCH DETAILED EXAMINATION OF ACCOUNTS IS NOT P OSSIBLE DURING THE PROCEEDINGS BEFORE ME. THIS SHOULD BE DONE AT THE APPROPRIATE L EVEL OF THE ASSESSING OFFICER. 9. AS REGARDS THE UNSECURED LOANS, IT IS SEEN THAT THE ASSESSEE OBTAINED LOAN AGGREGATING TO RS. 1.60 CRORES FROM SIX PRIVATE PAR TIES, CREDITWORTHINESS OF WHICH ARE DOUBTFUL. THESE ARE AS UNDER:- NAME OF THE CREDITORS AMOUNT OF LOAN RETURN INCOME OF THE CREDITORS SUMSUNG ESTATES (P) LTD. RS. 10,00,000/- RS. 5,560/- WOODHAT DISTRIBUTORS (P) LTD. RS. 1,10,00,000/- RS. 5,40,920/- RASHRAJ IMPACT (P) LTD. RS. 9,00,000/- NIL SHAGUN TIE UP (P) LTD. RS. 9,00,000/- RS. 11,750/- UNIQUE MERCHANTS (P) LTD. RS. 15,00,000/ - RS. 5,910/- MICROSYNTH VAPAYER (P) LTD. RS. 7,00,000/- NIL 10. FROM THE DETAILS FILED, IT IS SEEN THAT THE C REDITORS HAD EITHER NIL OR NEGLIGIBLE INCOME TO SUPPORT SUCH HUGE CASH CREDITS TO THE ASS ESSEE. MOREOVER FROM THEIR BANK ACCOUNTS, IT IS SEEN THAT IDENTICAL AMOUNT WAS DEPOSITED IN THE BANK ACCOUNTS JUST 2-3 DAYS BEFORE ADVANCING THE LOAN. FOR EXAMPL E, M/S SUMSUNG ESTATE (P) LTD. RECEIVED RS.10 LAKHS FROM M/S PUSHPAK TRADING CONSU LTANCY (P) LTD. ON 15 TH DECEMBER AND ADVANCED RS. 10 IAKHS TO THE ASSESSEE ON 16 TH DECEMBER. SIMILARLY, M/S UNIQUE MERCHANT (P) LTD. RECEIVED RS. 5 LAKHS F ROM PUSPAK TRADING CO. ON 15 TH DECEMBER AND ADVANCED THE SAME TO THE ASSESSEE ON 16 TH DECEMBER. FROM THE NATURE OF THESE CREDIT AND DEBIT ENTRIES IN THE BAN K ACCOUNT OF THE PARTIES, THE LOANS APPEAR TO BE IN THE NATURE OF ACCOMMODATION ENTRIES , WHICH REQUIRE FURTHER INVESTIGATION BY THE ASSESSING OFFICER SPECIALLY RE GARDING THE CREDIT WORTHINESS OF THE PARTIES. THE AO HAS MENTIONED IN THE ASSESSMENT ORDER THAT THE INSPECTOR WAS DEPUTED TO VERIFY THE FRESH LOANS DURING THE YEAR A ND HIS REPORT IS ON RECORD. THE INSPECTOR HAS GIVEN IDENTICAL REPORTS IN RESPECT OF THE ENQUIRIES MADE BY HIM IN RESPECT OF SIX PARTIES. HIS REPORT IS VERY ELEMENTA RY AND SIMPLY MENTIONS THAT HE HAS VERIFIED BANK PASSBOOK, P/L ACCOUNT AND BALANCE SHEET. BUT IN NONE OF THE REPORTS, HE HAS COMMENTED ON THE ISSUE OF CREDIT WO RTHINESS I.E., WHETHER THESE PARTIES HAD SUFFICIENT MEANS TO ADVANCE SUCH HUGE L OAN. IT IS WELL ESTABLISHED THAT LOAN CREDITS FROM PARTIES, WHO ARE OF NO MEANS CAN NOT BE ACCEPTED AS GENUINE. THE ASSESSING OFFICER WAS REQUIRED TO MAKE PROPER INVES TIGATION TO DETERMINE WHETHER THE LOAN WAS REALLY MADE BY THE THIRD PARTY OR IT H AS COME OUT OF THE RESOURCES OF THE ASSESSEE HIMSELF. THUS HE HAS FAILED TO APPLY H IS MIND TO ALL ASPECTS OF THE CASE. SUCH NON APPLICATION OF MIND CONSTITUTES PASSING OF AN ERRONEOUS ORDER WHICH AS DISCUSSED ABOVE IS ALSO PREJUDICIAL TO THE INTEREST OF REVENUE. 5. BEING AGGRIEVED BY THE AFORESAID OBSERVATIONS AND D IRECTIONS OF LD. C.I.T. IN HIS ORDER PASSED U/S. 263 OF THE ACT, THE ASSESSEE IS I N APPEAL BEFORE US. 5 6. AT THE TIME OF HEARING BEFORE US, THE LD. COUNS EL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. C.I.T. HE FURTHER REFERRING TO THE NOTICE OF LD. C.I.T. ISSUED U/S. 263 OF THE ACT SUBMITTED THAT THE SAID NOTICE IS SILENT ON THE ISSUE OF ASSOCIATED ENTERPRISE. SECTION 92 OF THE ACT IS APP LICABLE ONLY IN CASE OF ASSOCIATED ENTERPRISE AND THE NOTICE U/S. 263 ISSUED BY THE LD . C.I.T. WAS PRESUMPTIVE, INASMUCH AS ONLY BECAUSE OF EXPORT SALES, PROVISIONS OF SEC. 92 OF THE ACT CANNOT BE APPLIED. HE SUBMITTED THAT UNLESS THERE IS ANY INTERNATIONAL TR ANSACTION WITH ASSOCIATED ENTERPRISE OF THE ASSESSEE, TRANSFER PRICING PROVISIONS ARE IN APPLICABLE. HE SUBMITTED THAT DURING THE YEAR UNDER APPEAL, THE ASSESSEE HAD NOT ENTERED INTO ANY INTERNATIONAL TRANSACTION INVOLVING PURCHASE OR SALE OF ANY GOODS OR ANY SERV ICE/FACILITIES WITH ANY OF ITS ASSOCIATED ENTERPRISE WITHIN THE MEANING OF SEC. 92 A OF THE ACT. TAX AUDIT REPORT ALSO MAKES NO REFERENCE TO ANY SUCH TRANSACTION. HE FURT HER SUBMITTED THAT THE LIST OF THE PARTIES TO WHOM SALES WERE MADE AND A CERTIFIED LIS T OF THE ASSOCIATED ENTERPRISES, ALL BEING DOMESTIC COMPANIES, WERE FILED BEFORE THE LD. C.I.T. THE A.O. WAS NOT REQUIRED THE LIST OF ASSOCIATED ENTERPRISES BECAUSE OF THE F ACT THAT ON PERUSAL OF THE TAX AUDIT REPORT HE FOUND NO INTERNATIONAL TRANSACTION BEING UNDERTAKEN BY THE ASSESSEE WITH ITS ASSOCIATED CONCERNS. THEREFORE, WHEN THE INFORMATIO N ABOUT ASSOCIATED CONCERN IS NOT MATERIAL IN RELATION TO THE ASSESSEES BUSINESS DUR ING THE YEAR UNDER APPEAL AND FOR THE PURPOSE OF SEC. 92 OF THE ACT, THERE WAS NO REQUIRE MENT/NECESSITY OF GOING THROUGH THE LIST OF SUCH ASSOCIATED ENTERPRISES. THE LD. A/R SU BMITTED THAT FROM THE EVIDENCES ON RECORD AND PRODUCED BEFORE THE A.O., IT WOULD BE EV IDENT THAT THERE WAS NO INTERNATIONAL TRANSACTION WITH THOSE ASSOCIATED CON CERNS, LET ALONE ANY EXPORT SALES. ACCORDING TO THE LD. A/R, THE LD. C.I.T. HAS ALSO N OT BEEN ABLE TO BRING ON RECORD SUCH INTERNATIONAL TRANSACTION WITH ASSOCIATED CONCERNS. IN THAT EVENT, THE NOTICE U/S. 263 OF THE ACT ITSELF WAS ERRONEOUS ON THE FACE OF IT. THE A.O. AFTER TAKING INTO CONSIDERATION THE PROVISIONS OF SEC. 92 OF THE ACT AND VERIFYING THE LISTS OF PARTIES TO WHOM SALES WERE MADE AND ASSOCIATED ENTERPRISES OF THE ASSESSE E, TAX AUDIT REPORT AND OTHER EVIDENCES ON RECORD HAS ACCEPTED THE ASSESSEES EXP ORT TURNOVER. THE LD. A/R FURTHER SUBMITTED THAT BEFORE INITIATING PROCEEDING U/S. 26 3 OF THE ACT, THE LD. C.I.T. HAS TO BE SATISFIED HIMSELF OF TWIN CONDITIONS, VIZ., (I) THE ORDER OF THE A.O. SOUGHT TO BE REVISED IS ERRONEOUS AND (II) IT IS PREJUDICIAL TO THE INTERES TS OF THE REVENUE. IF ONE OF THE CONDITIONS 6 ABOVE IS ABSENT, NO RECOURSE CAN BE TAKEN U/S. 263( 1) OF THE ACT JUST TO RE-EXAMINE OR RE- VERIFY THE ISSUES ALREADY EXAMINED/VERIFIED AT THE ASSESSMENT LEVEL. HE, THEREFORE, SUBMITTED THAT BY THE ACTION OF THE A.O., NO PREJUD ICE HAS BEEN CAUSED TO THE REVENUE AND THUS THE ORDER OF LD. C.I.T. DIRECTING THE A.O. TO PASS DE NOVO ASSESSMENT ORDER AFTER PROPER ENQUIRIES IN RESPECT OF THE ABOVE ISSUE IS B EYOND THE SCOPE OF SEC. 263 OF THE ACT AND HENCE ILLEGAL. 6.1. IN REGARD TO THE OTHER ISSUE, I.E. UNSECURED LOAN OF RS.1.60 CRORES, THE LD. A/R SUBMITTED THAT THE A.O. CONDUCTED ENQUIRIES ON THE LENDER-COMPANIES THROUGH HIS INSPECTOR AND COLLECTED RETURN OF INCOME, BALANCE S HEET, P/L ACCOUNT, BANK STATEMENT ETC. FROM THOSE LENDERS. THE LENDERS ALSO FILED THEIR RE SPECTIVE CONFIRMATION IN RESPECT OF THEIR GIVING LOANS TO THE ASSESSEE, WHICH ARE ALREADY ON RECORD. THEREFORE, THE A.O. HAD MADE SUFFICIENT ENQUIRIES AND APPLIED HIS MIND BEFORE AC CEPTING THE GENUINENESS OF LOAN TRANSACTIONS. THE LD. A/R FURTHER SUBMITTED THAT TH E LD. C.I.T. HAS TRIED TO REPLACE HIS VIEW WITH THE VIEW OF A.O., WHICH IS NOT PERMISSIBLE AS PER PROVISIONS OF SEC. 263 OF THE ACT, ON THE UNDERSTANDING THAT THE A.O. HAD NOT EXAMINED THE CREDITWORTHINESS OF THE LENDERS IGNORING THE FACT THAT THE A.O. HAD COLLECTED ALL R ELEVANT MATERIALS AND AFTER EXAMINING THE SAME, DECIDED THE ISSUE. HE FURTHER SUBMITTED THAT THE LD. C.I.T. LAYING EMPHASIS ON CHEQUE DEPOSITS IN THE BANK ACCOUNT OF LENDER-COMPA NIES BEFORE GIVING CHEQUE TO THE ASSESSEE STATED THAT SUCH SOURCE OF SOURCE SHOULD H AVE BEEN EXAMINED. THE LD. A/R REFERRING TO THE DECISION IN THE CASE OF NEMI CHAND KOTHARI VS. CIT [264 ITR 254 (GAU)] SUBMITTED THAT SOURCE OF THE SOURCE IS NOT RELEVANT TO DECIDE THE ISSUE OF LOAN TRANSACTIONS. THE A.O. AFTER EXAMINING THE EVIDENCES COLLECTED FR OM THE LENDERS AND CONSIDERING THE EVIDENCES PLACED BEFORE HIM HAS TAKEN A POSSIBLE VI EW WHICH HE DEEMED FIT AND THE LD. C.I.T. CANNOT REPLACE HER OWN VIEW BY INVOKING PROV ISIONS OF SEC. 263 OF THE ACT DIRECTING THE A.O. FOR FURTHER ENQUIRY IN THE MATTE R. HE FURTHER SUBMITTED THAT ACTION U/S. 263 OF THE ACT LIES WHERE THERE IS NO ENQUIRY AT AL L, BUT NOT ON THE FEELING OF INSUFFICIENT ENQUIRY. THE LD. A/R, THEREFORE, SUBMITTED THAT THE LD. C.I.T. WAS WRONG IN INVOKING THE PROVISIONS OF SEC. 263 OF THE ACT ON THE GIVEN FACT S AND CIRCUMSTANCES OF THE CASE AND HER ORDER IS UNSUSTAINABLE IN LAW. 7. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND, RELIED ON THE ORDER OF LD. C.I.T. HE FURTHER SUBMITTED THAT THE ASSESSEE FOR THE FIRST TIME PRODUCED BEFORE THE LD. C.I.T. THE LIST OF ASSOCIATED ENTERPRISES. THE REFORE, THERE IS NO DOUBT THAT THE A.O. 7 WITHOUT GOING THROUGH SUCH LIST HAS DECIDED THE ISS UE OF EXPORT TURNOVER OF THE ASSESSEE-COMPANY DURING THE YEAR UNDER APPEAL WITHO UT MAKING ANY REFERENCE TO T.P.O. FOR DETERMINATION OF ARMS LENGTH PRICE AS RE QUIRED U/S. 92 OF THE ACT. THEREFORE, WHEN THERE WAS NO ENQUIRY AT ALL BEFORE DECIDING TH E ISSUE, THE LD. C.I.T. WAS JUSTIFIED IN ISSUING SHOW-CAUSE NOTICE U/S. 263 OF THE ACT AN D VALIDLY DIRECTED THE A.O. TO MAKE DE NOVO ASSESSMENT ON THE ISSUE OF APPLICABILITY OF SEC. 92 OF THE ACT IN THE CASE OF THE ASSESSEE. IN REGARD TO THE OTHER ISSUE OF UNSECURED LOAN CLAIMED TO HAVE BEEN OBTAINED BY THE ASSESSEE, THE LD. DEPARTMENTAL REPRESENTATIV E SUBMITTED THAT ALTHOUGH THE A.O. DEPUTED INSPECTOR TO ENQUIRE INTO THE AFFAIRS OF TH E LENDERS, BUT THE REPORTS SUBMITTED BY HIM WERE STEREO TYPED. HE FURTHER SUBMITTED THA T ON PERUSAL OF THE BANK STATEMENTS OF THE LENDERS IT WAS REVEALED THAT EQUAL AMOUNTS W ERE DEPOSITED JUST ONE OR TWO DAYS BEFORE WITHDRAWAL OF THE AMOUNTS FOR ALLEGEDLY ADVA NCING LOAN TO THE ASSESSEE. CONSIDERING THE CREDITWORTHINESS OF THE LENDERS VIS --VIS VOLUME OF LOAN ADVANCED BY THEM, THE A.O. SHOULD NOT HAVE ENTIRELY RELIED ON T HE INSPECTORS REPORT AND HE SHOULD HAVE MADE MORE ENQUIRIES TO UNEARTH THE REAL TRANSA CTION. THAT NOT BEING DONE, THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED, THE ORDER OF A.O. SUFFERS FROM DEFECT AND ILLEGALITY AND THE LD. C.I.T. HAS THUS RIGHTLY INVO KED PROVISIONS OF SEC. 263 OF THE ACT IN DIRECTING THE A.O. TO MAKE PROPER ENQUIRIES ON T HE ISSUE BEFORE PASSING DE NOVO ASSESSMENT. HE, THEREFORE, SUBMITTED THAT THE ASSES SMENT ORDER PASSED U/S. 143(3) OF THE ACT BEING ERRONEOUS AND PREJUDICIAL TO THE INTE REST OF THE REVENUE, THE ORDER PASSED BY THE LD. C.I.T. U/S. 263 OF THE ACT WAS VALID AND THE SAME SHOULD BE UPHELD. IN SUPPORT OF HIS SUBMISSIONS, THE LD. DEPARTMENTAL RE PRESENTATIVE RELIED ON THE FOLLOWING CASE LAWS :- MOTILAL BIMALCHAND JAIN (HUF) VS. CIT [285 ITR 2 24 (MP)] SMT. RENU GUPTA VS. CIT [301 ITR 45 (RAJ.)] GEE VEE ENTERPRISES VS. ADDL. CIT [99 ITR 375 (DE L)] DAWJEE DADABHOY & CO. VS. S.P.JAIN [31 ITR 872 (C AL)] CIT VS. SOUTH INDIA SHIPPING CORPN. LTD. [233 ITR 546 (MAD)] 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PART IES AND PERUSED THE ORDERS OF LD. C.I.T. AS WELL AS A.O. WE HAVE ALSO GONE THROUGH T HE EVIDENCES PLACED ON RECORD. THE 8 LD. C.I.T. INITIATED PROCEEDING U/S. 263 OF THE ACT ON TWO COUNTS, VIZ. (I) THE A.O. HAD NOT VERIFIED THE APPLICABILITY OF SEC. 92 OF THE AC T BEFORE ALLOWING EXPORT TURNOVER OF THE ASSESSEE; AND (II) SUFFICIENT ENQUIRY HAD NOT B EEN CARRIED OUT IN RESPECT OF THE LENDERS WHILE ALLOWING RECEIPT OF UNSECURED LOANS B Y THE ASSESSEE-COMPANY TO THE TUNE OF RS.1.63 CRORES. IN REGARD TO THE FIRST OBJECTIO N, WE OBSERVE THAT THE NOTICE ISSUED BY THE LD. C.I.T. WAS RESTRICTED TO DEFICIENCY OF THE A.O. IN NOT MAKING ANY REFERENCE TO T.P.O. FOR DETERMINATION OF ARMS LENGTH PRICE AS PE R SEC. 92 OF THE ACT. HOWEVER, IN THE ORDER PASSED U/S. 263 OF THE ACT, THE ISSUE CON SIDERED WAS NON-FILING OF LIST OF ASSOCIATED ENTERPRISES OF THE ASSESSEE BEFORE THE A .O. CAUSING LACK OF ENQUIRY ON THE ISSUE OF REFERENCE IN TERMS OF SEC. 92 OF THE ACT. SECTION 92 OF THE ACT SPEAKS OF COMPUTATION OF INCOME FROM INTERNATIONAL TRANSACTIO N HAVING REGARD TO ARMS LENGTH PRICE. SUB-SEC. (2) OF SEC. 92 READS AS UNDER :- (2) WHERE IN AN INTERNATIONAL TRANSACTION, TWO OR MORE ASSOCIATED ENTERPRISES ENTER INTO A MUTUAL AGREEMENT OR ARRANGEMENT FOR THE ALLO CATION OR APPORTIONMENT OF, OR ANY CONTRIBUTION TO, ANY COST OR EXPENSES INCURRED OR TO BE INCURRED IN CONNECTION WITH A BENEFIT, SERVICE OR FACILITY PROVIDED OR TO BE PROVIDED TO ANY ONE OR MORE OF SUCH ENTERPRISES, THE COST OR EXPENSE ALLOCATED OR APPORTIONED TO, OR, AS THE CASE MAY BE, CONTRIBUTED BY, ANY SUCH ENTERPRISE SHALL BE DE TERMINED HAVING REGARD TO THE ARMS LENGTH PRICE OF SUCH BENEFIT, SERVICE OR FACI LITY, AS THE CASE MAY BE. ON READING OF THE AFORESAID SUB-SECTION, IT IS MANI FEST THAT FOR DETERMINING THE ARMS LENGTH PRICE THERE MUST BE INTERNATIONAL TRANSACTIO N AT LEAST WITH TWO OF THE ASSOCIATED ENTERPRISES OF THE ASSESSEE AND ONLY EXPORT SALES C ANNOT INVITE THE PROVISIONS OF SEC. 92 OF THE ACT. THE LD. A/R REFERRING TO TAX AUDIT REPO RT HAS STATED THAT THERE WAS NO MENTION OF ANY INTERNATIONAL TRANSACTION WITH THE A SSESSEES ASSOCIATED ENTERPRISES AND THIS ASSERTION OF THE ASSESSEE HAS NOT BEEN DISPUTE D IN THE ORDER PASSED U/S. 263 OF THE ACT. FURTHER, NO EVIDENCE HAS BEEN BROUGHT ON RECO RD BY THE LD. C.I.T. TO THE EFFECT THAT INTERNATIONAL TRANSACTIONS BY WAY OF MUTUAL AG REEMENT/ARRANGEMENT WITH THE ASSOCIATED ENTERPRISES HAVE BEEN ENTERED INTO BY TH E ASSESSEE DURING THE ASSESSMENT YEAR UNDER CONSIDERATION. IT IS FURTHER OBSERVED TH AT THE ASSESSEE IN REPLY TO THE NOTICE U/S. 263 OF THE ACT HAS CATEGORICALLY CERTIFIED VID E ITS LETTER DATED 20/1/2009 THAT THE FIRM HAD NOT ENTERED INTO ANY INTERNATIONAL TRANSAC TION INVOLVING PURCHASE OR SALE OF ANY GOODS OR ANY SERVICES OR FACILITIES WITH ANY CO NCERN WHICH WAS AN ASSOCIATED ENTERPRISE WITHIN THE MEANING OF SEC. 92A OF THE I. T. ACT, 1961. THEREFORE, THE VERY 9 INGREDIENT WHICH IS REQUIRED FOR INVOKING PROVISION S OF SEC. 92 OF THE ACT VIS--VIS APPLICATION OF ARMS LENGTH PRICE IS MISSING IN THE CASE OF THE ASSESSEE. IT IS FACT THAT THE ASSESSEE DID NOT SUBMIT THE LIST OF ITS ASSOCIA TED ENTERPRISES BEFORE THE A.O. AND IT WAS FOR THE FIRST TIME SUBMITTED BEFORE THE LD. C.I .T. BASING ON THIS INCIDENCE, THE LD. C.I.T. PRESUMED THAT DUE TO NON-FILING OF SUCH LIST OF ASSOCIATED ENTERPRISES, THE ASSESSMENT MADE BY THE A.O. ON THIS ISSUE IS DEFECT IVE, CAUSING PREJUDICE TO THE REVENUE. WE ARE OF THE CONSIDERED OPINION THAT WHEN ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND EVIDENCE ON RECORD THERE WAS NO REQUIR EMENT OF TAKING INTO CONSIDERATION THE LIST OF ASSOCIATED ENTERPRISES, MORE SO WHEN TH ERE WAS NO INTERNATIONAL TRANSACTION WITH THEM, THE A.O. DID NOT COMMIT ANY MISTAKE IN N OT ASKING FOR SUCH LIST. THEREFORE, CONSIDERING THE NATURE OF TRANSACTION WHEN THERE WA S NO REQUIREMENT OF LIST OF ASSOCIATED ENTERPRISES AS PER LAW, NO VALID PRESUMP TION ARISES ABOUT LACK OF ENQUIRY ON THE PART OF THE A.O. PROVISIONS OF SEC. 263 OF THE ACT ARE APPLICABLE WHEN NO ENQUIRY AT ALL ON AN ISSUE IS UNDERTAKEN BY THE A.O., WHICH MAKES THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE R EVENUE. BUT, AS STATED ABOVE, SUCH CIRCUMSTANCES ARE NOT FOUND TO BE EXISTED IN THE CA SE OF THE ASSESSEE SO FAR AS THE INSTANT ISSUE IS CONCERNED. WE, THEREFORE, FIND THE ACTION OF THE LD. C.I.T. IN THIS REGARD BEYOND THE SCOPE OF SEC. 263 OF THE ACT. 9. THE ONLY OTHER ISSUE IS REGARDING UNSECURED LOA N OBTAINED BY THE ASSESSEE FROM SIX PRIVATE LIMITED COMPANY. THE LD. C.I.T. ON PER USAL OF THE ASSESSMENT RECORDS OBSERVED THAT THE A.O. DID NOT MAKE PROPER ENQUIRIE S ABOUT THE CREDITWORTHINESS OF THE LENDERS BEFORE ACCEPTING THE LOANS TO THE ASSESSEE. HE ALSO FOUND IN THE BANK STATEMENT OF THE LENDERS THAT IDENTICAL AMOUNTS OF LOAN WERE DEPOSITED IN THE RESPECTIVE ACCOUNT OF SOME OF THE LENDS BEFORE THEY GAVE LOAN TO THE A SSESSEE. IT THUS APPEARS THAT THE LD. C.I.T. WAS NOT SATISFIED ABOUT THE ENQUIRY CONDUCTE D BY THE A.O. TO FIND OUT THE SOURCE OF THE SOURCE. ON PERUSAL OF THE ASSESSMENT ORDER, IT IS OBSERVED THAT THE A.O. DEPUTED HIS INSPECTOR TO ENQUIRE INTO THE MATTER FROM THE L ENDERS. THE A.O. WAS ALSO MADE AVAILABLE WITH THE RETURN OF INCOME, BALANCE SHEET, P/L ACCOUNT, BANK STATEMENT ETC. OF THE LENDERS. CONFIRMATIONS FROM THE LENDERS WERE A LSO FILED BEFORE THE A.O. WE FIND FROM THE ASSESSMENT ORDER ITSELF THAT AS MANY AS ON SIX OCCASIONS THE A.O. HEARD THE ASSESSEE AND DISCUSSED THE CASE WITH HIM. THEREFORE , IT CANNOT BE SAID THAT THE A.O. HAS 10 NOT AT ALL ENQUIRED INTO THE MATTER AND APPLIED HIS MIND BEFORE DEALING WITH THE LOAN CREDITORS AND TAKING A POSSIBLE VIEW. IT IS A SETTL ED POSITION THAT THE PROCEEDINGS U/S. 263 OF THE ACT CANNOT BE INITIATED BY THE LD. C.I.T . MERELY IN HIS SUPERVISORY CAPACITY. BEFORE INVOKING THE POWERS U/S. 263 OF THE ACT, IT IS NECESSARY FOR THE LD. C.I.T. TO DEMONSTRATE THAT THE A.O. HAD COMMITTED A PATENT ER ROR WHICH RESULTED IN PREJUDICE TO THE REVENUE. ON THE CONTRARY, WHERE THE LD. A.O. HA S CONDUCTED ENQUIRIES AND AFTER DUE CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE HE COMES TO A CONCLUSION, THEN IT IS NOT OPEN TO THE LD. C.I.T. TO INVOKE REVISION ARY JURISDICTION ON THE GROUND OF LACK OF ENQUIRY. FURTHER, A BARE READING OF SECTION 263 OF THE ACT MAKES IT CLEAR THAT THE PRE- REQUISITE FOR THE EXERCISE OF JURISDICTION BY THE C OMMISSIONER SUO MOTU UNDER IT, IS THAT THE ORDER OF THE A.O. IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER HAS TO BE SATISFIED OF TW IN CONDITIONS, NAMELY, (I) THE ORDER OF THE A.O. SOUGHT TO BE REVISED IS ERRONEOUS ; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT, I.E. IF THE ORDER OF THE A.O. IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIAL TO THE REVENUE, RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT JUST TO RE-EXAMINE OR RE-VERIFY THE ISSUES ALREADY EXAMINED /VERIFIED AT THE ASSESSMENT LEVEL. IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. IN THE CASE BEFORE US, IT IS NOT DISPUTED THAT THE A.O. MADE ENQUIRIES AND GONE THROUGH THE DOCUMENTS COLLECTED FROM THE LENDERS AND THEN DECIDED THE ISS UE WHICH HE DEEMED FIT IN THE CIRCUMSTANCES OF THE CASE. THE LD. C.I.T. STATED TH AT THE A.O. FAILED TO MAKE ANY ENQUIRIES REGARDING CREDITWORTHINESS OF THE LOAN CR EDITORS. THIS OBSERVATION, IN OUR CONSIDERED OPINION, IS NOT CORRECT ON THE FACE OF T HE ENQUIRY CONDUCTED BY THE A.O. WHEN THE A.O. VERIFIED/EXAMINED THE RETURN OF INCOM E, BALANCE SHEET, P/L ACCOUNT, BANK STATEMENT, CONFIRMATION ETC. OF THE LENDERS AN D ALSO PERUSED THE INSPECTORS REPORT, IT GOES WITHOUT SAYING THAT THE A.O. CONSID ERED THE CREDITWORTHINESS OF THE LOAN CREDITORS ALSO. THEREFORE, IT IS NOT THE CASE THAT THE LD. A.O. DID NOT MAKE ANY ENQUIRY AT ALL. IN OUR OPINION, THE ENTIRE EXERCISE U/S. 263 OF THE ACT WAS MADE BY THE LD. C.I.T. MERELY WITH A VIEW TO GIVE A SECOND INNING TO THE A .O. TO RE-EXAMINE AND RE- ADJUDICATING THE CONCLUDED ISSUES. THE POWERS ENVIS AGED U/S. 263 OF THE ACT IN SETTING ASIDE AN ASSESSMENT ARE LARGE AND WIDE, BUT THESE C ANNOT BE EXERCISED TO ALLOW THE 11 A.O. TO MAKE UP THE DEFICIENCY OF HIS CASE. HONBLE I.T.A.T., KOLKATA BENCH IN THE CASE OF PLASTIC CONCERN VS. ACIT [61 TTJ 87 (CAL) H AS HELD THAT MERE POSSIBILITY OF GATHERING MORE MATERIAL TO PROVE THE CLAIM OF THE A SSESSEE WRONG WOULD NOT MAKE THE CONCLUDED ASSESSMENT ERRONEOUS SO LONG AS THE LD. A .O. HAD ACTED JUDICIOUSLY AND CONDUCTED ENQUIRIES IN THE COURSE OF ASSESSMENT PRO CEEDINGS. THERE IS A DISTINCTION BETWEEN LACK OF ENQUIRY AND INADEQUATE ENQUIRY. IF THERE IS AN ENQUIRY, EVEN INADEQUATE, THAT WOULD NOT BY ITSELF GIVE OCCASION TO THE LD. C.I.T. TO PASS ORDER U/S. 263 OF THE ACT, MERELY BECAUSE HE HAS A DIFFERENT O PINION IN THE MATTER. 10. WE FIND FROM THE ABOVE FACTS AND CIRCUMSTANCES THAT THE ASSESSEE HAS CATEGORICALLY STATED BEFORE THE LD. C.I.T. VIDE ITS LETTER DATED 20/1/2009 THAT IT HAD NOT ENTERED INTO ANY INTERNATIONAL TRANSACTION OF PURCH ASE OR SALE OF ANY GOODS OR ANY SERVICES/FACILITIES WITH ITS ASSOCIATED ENTERPRISES WITHIN THE MEANING OF SEC. 92A OF THE ACT AND EVEN AS PER TAX AUDIT REPORT THERE WAS NO M ENTION OF ANY INTERNATIONAL TRANSACTION WITH THE ASSESSEES ASSOCIATED CONCERNS . IN SUCH CIRCUMSTANCES, IN OUR CONSIDERED OPINION, WHEN THE ASSESSEES CASE DOES N OT FALL UNDER THE PURVIEW OF SEC. 92 OF THE ACT, THE A.O. HAD NO OCCASION TO CALL FOR LI ST OF ASSOCIATED CONCERNS AND TO REFER THE MATTER TO T.P.O. FOR DETERMINING THE ARMS LENGT H PRICE AS PER SEC. 92 OF THE ACT, AS ALLEGED BY THE LD. C.I.T. IN REGARD TO OTHER ISSUE OF UNSECURED LOAN TAKEN BY THE ASSESSEE, WE OBSERVE THAT THE A.O. ADJUDICATED UPON THE ISSUE AND ALLOWED THE CLAIM OF THE ASSESSEE ON THE BASIS OF INSPECTORS REPORT, WH O WAS DEPUTED FOR THIS SPECIFIC PURPOSE AND AFTER VERIFYING VARIOUS OTHER DOCUMENTS PRODUCED OR OBTAINED BY HIM IN RESPECT OF THE LENDERS. IN THE ABOVE CIRCUMSTANCES, WE FIND THAT THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE AND IT IS CLEAR FROM THE ASSESSMENT ORDER T HAT THE SAME IS IN ACCORDANCE WITH LAW. WE ARE OF THE VIEW THAT IF AN A.O. ACTING IN ACCORDANCE WITH LAW MAKES CERTAIN ASSESSMENTS, THE SAME CANNOT BE BRANDED AS ERRONEOU S BY THE COMMISSIONER SIMPLY BECAUSE, ACCORDING TO HIM, THE ORDER DOES NOT SPEAK ABOUT THE ISSUE OR THE ORDER SHOULD HAVE BEEN WRITTEN ELABORATELY. THE ORDER OF THE A. O. MAY BE BRIEF OR CRYPTIC BUT THAT BY ITSELF IS NOT SUFFICIENT TO BRAND THE ASSESSMENT ORDER AS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE. WRITING AN ORDER IN DETAIL ED MAY BE A LEGAL REQUIREMENT BUT THE ORDER NOT FULFILLING THIS REQUIREMENT CANNOT BE SAI D TO BE ERRONEOUS OR PREJUDICIAL TO THE 12 INTEREST OF REVENUE REASONS BEING THE A.O. HAS ALRE ADY MADE ENQUIRIES BY ISSUING NOTICE, CONSIDERING THE ASSESSEES REPLY TO THE NOT ICE ISSUED, DEPUTING INSPECTOR AND OBTAINING SEVERAL EVIDENCES IN RESPECT OF THE CLAIM OF THE ASSESSEE. IN THE CASE OF THE ASSESSEE, THE LD. C.I.T. COULD NOT POINT OUT AS TO WHAT WAS THE ERROR COMMITTED BY THE A.O. IN NOT HAVING CONSIDERED THE APPLICABILITY OF SEC. 92 OF THE ACT AND IN ACCEPTING THE UNSECURED LOAN TAKEN BY THE ASSESSEE. THE LD. C .I.T. HAVING FAILED TO POINT OUT SUCH ERROR, NO ERROR CAN BE INFERRED FROM THE ORDER OF A .O. FOR THE SIMPLE REASON THAT THE SAME IS BEREFT OF DETAILS. ACCORDINGLY, WE ARE OF THE VIEW THAT, IN THE PRESENT CASE, THE ASSESSMENT FRAMED BY THE A.O. IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. HENCE, WE ALLOW THE APPEAL OF THE ASSESSE E. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. !2 '3! 4 3$ 5 6 THIS ORDER IS PRONOUNCED IN OPEN COURT ON 24.6.11. SD/- SD/- ( ) ( . .. . . .. . ) !' (DIVA SINGH) , JUDICIAL MEMBER (C.D.RAO) , ACCOUNTANT MEMBER ( (( ( ' ' ' ') )) ) DATE: 24 -06-2011 ORDER PRONOUNCED BY - SD/- SD/- (MS), JM (CDR) , AM !2 0 .7 8!7&9- COPY OF THE ORDER FORWARDED TO : 1. *+ / THE APPELLANT : M/S.MAITHAN INTERNATIONAL, 3F, EAST INDIA HOUSE, 20 , BRITISH INDIA STREET, KOLKATA-700 069. 2 ./*+ / THE RESPONDENT : A.C.I.T., CIRCLE-56, KOLKATA. 3. 2$ / THE CIT, CENTRAL-I, KOLKATA. 4. =5 .$ / DR, ITAT, KOLKATA BENCHES, KOLKATA 5 . GUARD FILE . /7 ./ TRUE COPY, !2$3/ BY ORDER, (DKP) > ? / DY/ASSTT. REGISTRAR .