STAR INDIA P. LTD, MUMBAI V. ADDL CIT RG 11(1), MUMBAI

ITA 5630/MUM/2009

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1499 (ITAT-MUMBAI)
• Duration Of Justice: 9 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2005-2006
• Appeal Filed On: 16-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY SINGH
• Keywords: Unexplained cash credit; Depreciation; Transfer pricing; Opportunity of being heard; International transaction; Earning of tax free income; Difference of opinion; Rule 8D; Set aside
• Section: 14A; 37(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI M ANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER IT (TP) A NO. 5630 / MUM/2009 ( ASSESSMENT YEAR : 20 05 06 ) STAR INDIA PVT. LTD. STAR HOUSE, OFF DR. E. MOSES ROAD MUMBAI 400 011 PAN AAACN1335Q . APPELLANT V/S ADDL . COMMISSIONER OF INCOME TAX RANG E 11(1 ) ) , MUMBAI . RESPONDENT IT(TP)A NO.6030/MUM/2009 ( ASSESSMENT YEAR : 2005 06 ) ASSTT. COMMISSIONER OF INCOME TAX RANGE 11(1)), MUMBAI . APPELLANT V/S STAR INDIA PVT. LTD. STAR HOUSE, OFF DR. E. MOSES ROAD MUMBAI 400 011 PAN AAACN1335Q . RESPONDENT ASSESSEE BY : SHRI PORU S KAKA REVENUE BY : SHRI SANJAY SINGH DATE OF HEARING 20 . 12 .2018 DATE OF ORDER 15.03.2019 2 STAR INDIA PVT. LTD. O R D E R PER SAKTIJIT DEY, J.M. T HE AFORESAID CROSS APPEALS ARISE OUT OF ORDER DATED 5 TH AUGUST 2009, PASSED BY THE LEARNED COMMISSIONER (APPEALS) XXXII, MUMBAI, FOR THE ASSESSMENT YEAR 2005 06. ITA NO.5630/MUM./2009 ASSESSEES APPEAL 2 . SHRI PORUS KAKA, LEARNED SR. COUNSEL APPEARING FOR THE ASSESSEE , AT THE OUTSET , SUBMITTED THAT GROUNDS NO.1 AND 2 ARE NOT TO BE PRESSED AS, IN THE MEANWHILE , THE ASSESSEE HAS BEEN GRANTED DEPRECIATION. FURTHER, HE SUBMITTED , DUE TO SMALLNESS OF DISPUTED ADDITION, THE ASSESSEE HAS INSTRUCTED HIM NOT TO PRESS GROUND NO.3 . THOUGH, HE SUBMITTED THAT IN THE EARLIER YEARS THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. CONSIDERING THE AFORESAID SUBMISSIONS OF THE LEARNED SR. COUNSEL FOR THE ASSESSEE, WE DISMIS S GROUNDS NO.1, 2 AND 3, AS NOT PRESSED. 3 . IN GROUND NO.4, THE ASSESSEE HAS CHALLENGED THE DISALLOWANCE MADE OF ` 45,02,500, UNDER SECTION 14A R/W RULE 8D. 4 . BRIEF FACTS ARE, DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICING THAT IN THE RELE VANT PREVIOUS YEAR THE ASSESSEE HAS EARNED EXEMPT INCOME BY WAY OF DIVIDEND , WHEREAS , IT HAS DEBITED 3 STAR INDIA PVT. LTD. EXPENDITURE TO THE PROFIT & LOSS ACCOUNT INCLUDING INTEREST EXPENDITURE OF ` 21,80,000, CALLED UPON THE ASSESSEE TO EXPLAIN WHY DISALLOWANCE OF PROPORTIONA TE EXPENDITURE SHOULD NOT BE MADE IN ACCORDANCE WITH RULE 8D(2). THOUGH, THE ASSESSEE OBJECTED TO THE PROPOSED DISALLOWANCE, HOWEVER, THE ASSESSING OFFICER REJECTING THE OBJECTIONS OF THE ASSESSEE PROCEEDED TO COMPUTE DISALLOWANCE BY APPLYING THE PROVISION S OF RULE 8D R/W SECTION 14A OF THE ACT FOR AN AMOUNT OF ` 58,94,863. THE ASSESSEE CHALLENGED THE AFORESAID DISALLOWANCE BEFORE THE FIRST APPELLATE AUTHORITY. 5 . L EARNED COMMISSIONER (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DELETED THE DIS ALLOWANCE OF INTEREST EXPENDITURE OF ` 13,92,363. INSOFAR AS THE OTHER INDIRECT EXPENDITURE IS CONCERNED, LEARNED COMMISSIONER (APPEALS) DID NOT ACCEPT AS SESSEES CONTENTION THAT APPROXIMATELY AN AMOUNT OF ` 50,000, CAN BE ATTRIBUTED TOWARDS EARNING EXEMPT INCOME OF ` 11,07,268. HE OBSERVED , THE DISALLOWANCE OF OTHER EXPENSES HAS TO BE COMPUTED AS PER RULE 8D. HOWEVER, HE OBSERVED , SUCH DISALLOWANCE HAS TO BE RESTRICTED TO ` 45,02,500. 6 . THE LEARNED SR. COUNSE L FOR THE ASSESSEE SUBMITTED , RULE 8D OF THE RULES HAVING BEEN INTRODUCED TO THE STATUTE FROM 1 ST APRIL 2008, IS NOT APPLICABLE TO THE IMPUGNED ASSESSMENT YEAR. THEREFORE , COMPUTATION OF DISALLOWANCE UNDER RULE 8D IS INVALID. HE SUBMITTED , 4 STAR INDIA PVT. LTD. THE ASSESSEE ITS ELF HAS DISALLOWED 5% OF THE DIVIDEND INCOME EARNED WHICH IS REASONABLE KEEPING IN VIEW THE FACT THAT IN SIMILAR NATURE OF CASES PRIOR TO INTRODUCTION OF RULE 8D, THE TRIBUNAL HAS HELD THAT DISALLOWANCE @ 1% OR 2% OF THE EXEMPT INCOME IS REASONABLE. IN SUP PORT, HE RELIED UPON THE FOLLOWING DECISIONS: I ) THIRUMALAI CHEMICALS LTD. V/S DCIT, ITA NO.2203/MUM./ 2007 & ORS., DATED 29.12.2010; AND II ) M/S. CIVIL ENGINEERS ENTERPRISES PVT. LTD. V/S DCIT, ITA NO.859 KOL 2010, DATED 19.08.2010. 7 . T HE LEARNED DEPARTMENTAL REPRESENTATIVE, SHRI SANJAY SINGH, SUBMITTED , IN ASSESSEES OWN C ASE FOR ASSESSMENT YEAR 2006 07 IN ITA NO.4818/MUM./2010, DATED 1 ST APRIL 2016, THE TRIBUNAL HAS RESTORED THE ISSUE TO THE ASSESSING OFFICER. THUS, HE SUBMITTED , THE ISSUE MAY BE RESTORED TO THE ASSESSING OFFICER FOR COMPUTING DISALLOWANCE UNDER SECTION 14A OF THE ACT. 8 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. IT IS EVIDENT , IN THE RELEVANT PREVIOUS YEAR THE ASSESSEE HAS EARNED EXEMPT INCOME OF ` 11,07,268. UNDISPUT EDLY, THE ASSESSING OFFICER INVOKING RULE 8D HAS DISALLOWED AN AMOUNT OF ` 58,94,864. WHEREAS, LEARNED COMMISSIONER (APPEALS) WHILE DELETING THE DISALLOWANCE OF INDIRECT INTEREST EXPENDITURE HAS UPHELD THE DISALLOWANCE OF OTHER EXPENDITURE UNDER RULE 8D BY RESTRICTING IT TO ` 45,02,500. THUS, IT IS PATENT AND OBVIOUS THAT THE VERY BASIS FOR 5 STAR INDIA PVT. LTD. COMPUTATION OF DISALLOWANCE UNDER SECTION 14A BY THE DEPARTMENTAL AUTHORITIES IS INVALID, AS THE PROVISIONS OF RULE 8D IS APPLICABLE ONLY FROM ASSESSMENT YEAR 2008 09 ON WARDS. THAT BEING THE CASE, THE COMPUTATION OF DISALLOWANCE UNDER RULE 8D IS LEGALLY UNSUSTAINABLE. HOWEVER, NOW WE HAVE TO CONSIDER THE REASONABLENESS OF THE DISALLOWANCE OF EXPENDITURE MADE UNDER SECTION 14A OF THE ACT BY THE ASSESSEE AT ` 50,000. IT IS RELEVANT TO OBSERVE , WHILE DECIDING IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 07 IN ITA NO.4818/MUM./2010, DATED 1 ST APRIL 2016, THOUGH, THE TRIBUNAL HAS OBSERVED THAT PROVISIONS OF RULE 8D ARE NOT APPLICABLE, HOWEVER, THE TRIBUNAL HA S RESTORED THE ISSUE TO THE ASSESSING OFFICER FOR RE EXAMINATION. KEEPING IN VIEW THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO VERIFY ASSESSEES CLAIM THAT IN THE FAC TS OF ASSESSEES CASE , DISALLOWANCE UNDER SECTION 14A OF THE ACT CAN BE REASONABLY BE COMPUTED @ 5% OF THE EXEMPT INCOME EARNED DURING THE YEAR. THE ASSESSING OFFICER MUST DECIDE THE ISSUE AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.6030/MUM./2009 REVENUES APPEAL 9 . IN GROUND NO.1, THE DEPARTMENT HAS CHALLENGED DELETION OF ADDITION OF ` 46,28,20,416, MADE BY THE ASSESSING OFFICER TOWARDS PUBLICITY EXPENSES BY THE ASSESSEE. 6 STAR INDIA PVT. LTD. 10 . AS AN OFF SHOOT OF THE AFORESAID GROUND, THE DEPARTMENT HAS RAISED THE FOLLOWING ADDITIONAL GROUNDS: I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER (APPEALS), MUMBAI, ERRED IN DELETING THE DISALLOWANCE ON ACCOUNT OF ADVERTISEMENT AND PUBLICITY EXPENSES WITHOUT CONSIDERING THAT THE SAID DISALLOWANCE TANTAMOUNT TO ADDITION ON ACCOUNT OF ARM S LENGTH COMPENSATION RECEIVABLE BY THE ASSESSEE FROM ITS FOREIGN ASSOCIATED ENTERPRISE FOR THE BENEFITS ACCRUING FROM THESE EXPENSES AND WITHOUT APPRECIATING THAT EVEN THOUGH THE BENEFIT OF ADVERTISEMENT AND PUBLICITY SERVICES EXPENSES HAD GONE TO THE ASSOCIATED ENTERPRISE, THE TRANSACTION HAD NOT BEEN REFLECTED IN THE AUDIT REPORT IN FORM NO.3CEB. II) THE APPELLANT PRAYS THAT THE HONBLE BENCH MAY BE PLEASED TO SET ASIDE THE ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER FOR DETERMINING THE SAID ARMS LENGTH COMPENSATION RECEIVABLE BY THE ASSESSEE FROM ITS ASSOCIATED ENTERPRISE, IN ACCORDANCE WITH PRINCIPLES LAID DOWN IN MARUTI SUZUKI INDIA LT D. V/S ACIT, TRANSFER PRICING (328 ITR 210 (DEL.). 11 . AT THE OUTSET, WE PROCEED TO DECIDE GROUND NO.1, WHILE KEEPING ASIDE FOR THE TIME BEING THE ADDITIONAL GROUNDS RAISED BY THE REVENUE. 12 . BRIEF FACTS RELAT ING TO THE ISSUE IN GROUND NO.1 ARE, IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ON VERIFYING THE ACCOUNTS OF THE ASSESSEE NOTICED THAT AN AMOUNT OF ` 58,41,53,467, HAS BEEN DEBITED BY THE ASSESSEE TOWARDS ADVERTISEMENT AND PUBLICITY EXPENDITURE. HE ALSO OBSERVED THAT THE AFORESAID EXPENDITURE HAS NOT BEEN MADE PART OF INTERNATIONAL TRANSACTION DECLARED IN FORM NO.3CEB REPORT, HENCE, WERE NOT PART OF THE TRANSFER PRICING ORDER. HE ALSO OBSERVED THAT DISALLOWANCE OF SUCH EXPENDITURE HAS CONTINUED FROM 7 STAR INDIA PVT. LTD. THE PRECEDING YEAR S . HE OBSERVED , THE ASSESSEE IS AN AGENT FOR PROCURING FILM AND TELEVISION SOFTWARE TO BE TELECAST ON THE CHANNELS OWNED BY M/S. STAR, HONG KONG. HE OBSERVED , THE ASSESSEE RECEIVES 15% COMMISSION ON THE AD VERTISEMENTS OBTAINED BY IT FOR M/S. STAR, HONG KON G, APART FROM RECEIVING REVENUE ON DISTRIBUTION OF STAR CHANNELS IN INDIA. HE OBSERVED , THE ADVERTISEMENT AND PUBLICITY EXPENSES INCURRED BY THE ASSESSEE HELP THE CHANNELS TO GET WIDE PUBLICITY AND IMPROVE THEIR TRPS ENABLING BETTER ADVERTISEMENT AND DISTR IBUTION REVENUE FOR THE PRINCIPAL. WHEREAS , THE ASSESSEE GETS ONLY A PERCENTAGE COMMISSION OUT OF THE ADVERTISEMENTS OBTAINED FOR THE PRINCIPAL. THUS, HE OBSERVED , THE ADVERTISEMENT EXPENSES INCURRED BY THE ASSESSEE GIVES BENEFIT BOTH TO THE PRINCIPAL M/S. STAR, HONG KONG, AS WELL AS THE ASSESSEE. HE OBSERVED , SINCE THE PRINCIPAL IS AN OVERSEAS RESIDENT, THE BENEFIT ACCRUING TO IT IS NEITHER ASCERTAINABLE NOR PROPERLY TAXABLE. THUS, HE OBSERVED , THE EXPENDITURE INCURRED BY THE ASSESSEE TOWARDS ADVERTISEMENT AND PUBLICITY CANNOT BE ALLOWED FULLY. REFERRING TO SIMILAR DISALLOWANCE MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEAR S 1997 98 TO 1999 2000, THE ASSESSING OFFICER ULTIMATELY CONCLUDED THAT ONLY 15% OUT OF THE TOTAL EXPENDITURE INCURRED TOW ARDS ADVERTI SEMENT AND PUBLICITY CAN BE ALLOWED AS A DEDUCTION TO THE ASSESSEE. ACCORDINGLY, OUT OF THE TOTAL EXPENDITURE OF ` 58,41,53,467, THE ASSESSING OFFICER ALLOWED AN AMOUNT OF ` 8,76,23,020, AS WHOLLY AND EXCLUSIVELY INCURRED FOR THE PURPOSE OF 8 STAR INDIA PVT. LTD. ASSESSEES BUSI NESS UNDER SECTION 37(1) OF THE ACT AND THE BALANCE AMOUNT OF ` 49,65,30,447, WAS DISALLOWED. THE ASSESSEE CHALLENGED THE AFORESAID DISALLOWANCE BEFORE THE FIRST APPELLATE AUTHORITY. 13 . AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD, LEARNED COMMISSIONER (APPEALS) FOUND THAT ISSUE RELATING TO IDENTICAL DISALLOWANCE MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEARS 1997 98, 1998 99 AND 1999 2000, WERE DECIDED IN FAVOUR OF THE ASSESSEE BY THE THIRD MEMBER OF THE TRIBUNAL AND THE HON'BLE JURISDICTIONAL HIGH COURT UPHELD SUCH DECISION OF THE TRIBUNAL. HE ALSO OBSERVED , IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2000 01, 2001 02 AND 2002 03, IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBU NAL . FURTHER, HE OBSERVED, IDENTICAL ISSUE ARISING IN ASSESSEES APPEALS FOR ASSESSMENT YEAR 2003 04 AND 2004 05 WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE FIRST APPELLATE AUTHORITY. THEREFORE, FOLLOWING THE AFORESAID DECISIONS, HE DELETED THE DISALLOWAN CE MADE BY THE ASSESSING OFFICER. 14 . AS REGARDS THE ISSUE RELATING TO THE DELETION OF DISALLOWANCE UNDER SECTION 37(1) OF THE ACT IS CONCERNED, THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED UPON THE OBSERVATIONS OF THE ASSESSING OFFICER. 15 . THE LEARNED SR. C OUNSEL FOR THE ASSESSEE SUBMITTED , THE ASSESSEE , IN THE RELEVANT PREVIOUS YEAR HAS EARNED REVENUE FROM TWO 9 STAR INDIA PVT. LTD. STREAMS. FIRSTLY, RECEIVING COMMISSION AS A MA RKETING AGENT OF THE OVERSEAS AE AND SECONDLY, FROM DI STRIBUTION OF CHANNELS OF THE AE IN INDIA. HE SUB MITTED , AS FAR AS DISTRIBUTION OF CHANNEL IS CONCERNED, THE ASSESSEE DOES NOT EARN ANY COMMISSION. HE SUBMITTED , THIS DISPUTE BETWEEN THE ASSESSEE AND THE DEPARTMENT CROPPED UP FOR THE FIRST TIME IN ASSESSMENT YEAR 1997 98 AND THE ASSESSING OFFICER MADE ID ENTICAL DISALLOWANCE FROM ADVERTISEMENT AND PROMOTION EXPENDITURE IN ASSESSMENT YEARS 1997 98 TO 1999 2000 . ULTIMATELY, THE THIRD MEMBER DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY DELETING THE DISALLOWANCES MADE BY THE ASSESSING OFFICER. HE SUBMITTED , AGAINST THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR S 1997 98 TO 1999 2000, THOUGH, THE DEPARTMENT PREFERRED APPEALS BEFORE THE HONBLE HIGH COURT, HOWEVER, THE HONBLE HIGH COURT UPHELD THE DECISION OF THE TRIBUNAL BY DISMISSING THE APPEALS FILED BY THE REVENUE. HE SUBMITTED , IN SUBSEQUENT ASSESSMENT YEARS TILL A.Y. 2006 07, THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. IN THIS CONTEXT, HE DREW OUR ATTENTION TO THE ORDERS PASSED BY THE TRIBUNAL IN DIFFERENT ASSESSMENT YEARS AS WELL AS THE ORDER OF THE HONBLE HIGH COURT. THUS, HE SUBMITTED , THE ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE. 16 . HAVING CONSIDERED RIVAL SUBMISSIONS IN THE LIGHT OF FACTS AND MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE DISPUTE RELATING TO THE ASSESSEES CLAIM OF DEDUCTION FOR ADVERTISEMENT AND PUBLICITY EXPENSES 10 STAR INDIA PVT. LTD. IS A RECURRING DISPUTE BETWEEN THE PARTIES FROM ASSESSMENT YEAR 1997 98 ONWARDS. IN FACT, THE ASSESSING OFFICER HIMSELF HAS STATED IN THE ASSESSMENT ORDER THAT WHILE DECIDING ASSESSEES APPEAL S FOR ASSE SSMENT YEAR S 1997 98 TO 1999 2000, THERE WAS DIFFERENCE OF OPINION BETWEEN THE MEMBERS OF THE TRIBUNAL . W HILE THE JUDICIAL MEMBER DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE THE ACCOUNTANT MEMBER UPHELD THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. HOWEV ER, WHEN THE ISSUE CAME UP FOR CONSIDERATION BEFORE THE THIRD MEMBER, HE AGR E ED WITH T HE JUDICIAL MEMBER AND THE ISSUE WAS ULTIMATELY DECIDED IN FAVOUR OF THE ASSESSEE. IT IS PERTINENT TO MENTION , THE AFORESAID DECISION OF THE TRIBUNAL IN ASSESSMENT YEAR 1997 98 TO 1999 2000 WERE CHALLENGED BY THE DEPARTMENT IN APPEAL BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. WHILE DECIDING THE APPEALS OF THE REVENUE IN ITA NO.165/2009, DATED 24 TH MARCH 2009, AND ITAS NO.282 AND 283/2009, DATED 8 TH APRIL 2009, THE HON' BLE JURISDICTIONAL HIGH COURT UPHELD THE DECISIONS OF THE TRIBUNAL BY DISMISSING THE APPEALS OF THE REVENUE. THEREAFTER, FROM ASSESSMENT YEAR S 2000 01 TO 2004 05, THE TRIBUNAL HAS CONSISTENTLY DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. IN FACT, IN THE LA TEST ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2006 07, IN ITAS NO.4818 AND 4675/MUM./2010, DATED 1 ST APRIL 2016, THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE FOLLOWING ITS CONSISTENT VIEW EXPRESSED IN THE PRECEDING ASSESSMENT YEAR S . FACTS BEING IDENTICAL, FOLLOWING THE VIEW EXPRESSED BY THE 11 STAR INDIA PVT. LTD. TRIBUNAL AND THE HON'BLE JURISDICTIONAL HIGH COURT IN THE PRECEDING ASSESSMENT YEAR S , WE UPHOLD THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) ON THE ISSUE BY DISMISSING THE GROUND RAISED. 17 . HAVING HELD SO, NOW WE PROCEED TO DEAL WITH THE ADDITIONAL GROUNDS RAISED BY THE REVENUE. WHILE SEEKING THE ADMISSION OF THE ADDITIONAL GROUND S , IT IS THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT IT NEEDS TO BE EXAMINED IN ARM'S LENGTH P ERSPECTIVE WHETHER SOME BENEFI T HAS ACCRUED TO THE OVERSEAS AE DUE TO THE ADVERTISE MENT AND PUBLICITY EXPENDITURE INCURRED BY THE ASSESSEE. THEREFORE, HE SUBMITTED , LET THE ISSUE RAISED IN THE ADDITIONAL GROUNDS BE RESTORED TO THE TRANSFER PRICING OFFICER FOR EXAMINATION AS WELL AS DETERMINATION OF ARM'S LENGTH PRICE. 18 . THE LEARNED SR. COUNSEL FOR THE ASSESSEE VEHEMENTLY OPPOSING ADMISSION OF ADDITIONAL GROUND S SUBMITTED , THIS ISSUE WAS NEVER RAISED AT ANY STAGE EITHER IN THE COURSE OF ASSESSMENT PROCEEDINGS OR BEFORE THE TRANSFER PRICING OFFICER OR EVEN AT THE FIRST APPELLATE STAGE. HE SUBMITTED , THOUGH THE ASSESSING OFFICER WAS CONSCIOUS ABOUT ASSESSEES CLAIM THAT ADVERTISEMENT AND PUBLICITY EXPENSES ARE NOT PART OF INTERNATIONAL TRANSACTION, HOWEVER, HE NEVER MADE A REFERENCE TO THE TRANSFER PRICING OFFICER TO DETERMINE THE ARM'S LENGTH PRIC E OF ADVERTISEMENT AND PUBLICITY EXPENSES. HE SUBMITTED , THOUGH SECTION 92CA(2A) OF THE ACT EMPOWERS T HE TRANSFER PRICING OFFICER TO LOOK INTO 12 STAR INDIA PVT. LTD. ANY OTHER INTERNATIONAL TRANSACTION NOT REFERRED TO BY THE ASSESSING OFFICER AND DETERMINE ITS ARM'S LENGTH PRICE, HOWEVER, HE DID NOT CHOSE TO DO SO IN RESPEC T OF ADVERTISEMENT AND PUBLICITY EXPENSES. HE SUBMITTED , SECTION 92CA(2C) OF THE ACT DEBARS THE ASSESSING OFFICER FROM RE OPENING AN ASSESSMENT FOR THE PURPOSE OF TRANSFER PRICING ADJUSTMENT IN RESPECT OF PROCEEDINGS WHICH HAVE BEEN COMPLETED BEFORE 1 ST JULY 2012. HE SUBMITTED , RESTORATION OF THE ISSUE RAISED I N ADDITIONAL GROUND S TO THE TRANSFER PRICING OFFICER AT THIS STAGE WOULD AMOUNT TO RE OPENING OF ASSESSMENT FOR MAKING TRANSFER PRICING ADJUSTMENT. HE SUBMITTED , EVEN AT THIS STAGE ALSO, THE DEPARTMENT HAS NOT DEMONSTRATED THAT ADVERTISEMENT AND PUBLICITY EXPENDITURE INCURRED BY THE ASSESSEE FALLS WITHIN THE DEFINITION OF INTERNATIONAL TRANSACTION. HE SUBMITTED , THE TRANSFER PRICING OFFICER HAS ACCEPTED THE MARGIN SHOWN BY THE ASSESSEE FROM MARKETING AGENCY STREAM AS WELL AS DISTRIBUTION STREAM TO BE AT ARM 'S LENGTH. FURTHER, HE SUBMITTED , WHILE DECIDING DEPARTMENTS APPEAL FOR ASSESSMENT YEAR 2006 07, THE TRIBUNAL REFUSED TO ENTERTAIN IDENTICAL ADDITIONAL GROUND S RAISED BY THE DEPARTMENT . THEREFORE, HE SUBMITTED , THE ADDITIONAL GROUNDS RAISED BY THE REVENUE SHOULD NOT BE ADMITTED. 19 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT THE ADVERTISEMENT AND PUBLICITY EXPENSES OF ` 58,41,53,467, WERE PAID TO THE THIRD PARTIES IN INDIA. 13 STAR INDIA PVT. LTD. THE ASSESSING OFFICER HIMSELF HAS STATED IN THE ASSESSMENT ORDER THAT ADVERTISEMENT AND PUBLICITY EXPENDITURE WAS NOT PART OF ASSESSEES FORM NO.3ECB REPOR T. HE HAS ALSO ACCEPTED THAT N EITHER ANY REFERENCE WAS MADE TO THE TRANSFER PRICING OFFICER TO DETERMINE THE ARM'S LENGTH PRIC E OF ADVERTISEMENT AND PUBLICITY EXPENDITURE NOR THE TRANSFER PRICING OFFICER HAS PROCEEDED TO DETERMINE THE ARM'S LENGTH PRIC E OF SUCH EXPENDITURE IN THE COURSE OF PROCEEDINGS BEFORE HIM. THEREFORE, THE ADVERTISEMENT AND PUBLICITY EXPENDITURE FROM THE VERY INI TIAL STA GE ITSELF WAS NEVER TREATED AS PART OF INTERNATIONAL TRANSACTION. IT IS EVIDENT, THE TRANSFER PRICING ADJUSTMENT MADE BY THE TRANSFER PRICING OFFICER AMOUNTING TO ` 20,94,22,353, IN NO WAY, WAS CONNECTED TO THE REVENUE STREAM OF THE ASSESSEE. PERTINENTLY, THE AFORESAID TRANSFER PRICING ADJUSTMENT MADE BY THE TRANSFER PRICING OFFIC ER WAS ULTIMATELY DELETED BY LEARNED COMMISSIONER (APPEALS) WHILE DECIDING ASSESSEES APPEAL. IT IS A FACT ON RECORD THAT THE AFORESAID DECISION OF THE LEARNED COMMISS IONER (APPEALS) HAS NOT BEEN CHALLENGED BY T H E DEPARTMENT. THEREFORE, THE ISSUES RELA TING TO TRANSFER PRICING ADJUSTMENT HAVE ATTAINED FINALITY . THAT B EING THE CASE, IF AT THIS STAGE THE DEPARTMENT IS PERMITTED TO RAKE UP THE ISSUE RELATING TO DETERMINATI ON OF ARM'S LENGTH PRIC E OF ADVERTISEMENT AND PUBLICITY EXPENSES , AS RAISED IN ADDITION AL GROUND S, IT WILL VIRTUALLY RESULT IN RE OPENING OF THE ASSESSMENT WHICH IS PROHIBITED UNDER SECTION 92CA(2C) OF THE ACT. MOREOVER, THE ADVERTISEMENT AND PUBLICITY EXP ENSES WHETHER IS AN 14 STAR INDIA PVT. LTD. INTERNATIONAL TRANSACTION AND IT AT ALL IT IS SO, WHAT SHOULD BE THE ARM'S LENGTH PRICE OF THE TRANSACTION REQUIRES VERIFICATION OF PRIMARY FACTS WHICH, AS PER ASSESSING OFFICERS OWN VERSION, IS NEITHER AVAILABLE IN FORM NO.3CEB REPORT NOR IN THE COURSE OF PROCEEDINGS BEFORE THE TRANSFER PRICING OFFICER. THEREFORE, IN OUR CONSIDERED OPINION, THE ISSUES RAISED IN ADDITIONAL GROUND S REQUIRE VERIFICATION / INVESTIGATION INTO FRESH FACTS WHICH ARE NOT AVAILABLE ON RECORD. FURTHER, WE HAVE N OTICED THAT IDENTICAL ADDITIONAL GROUNDS WERE RAISED BY THE DEPARTMENT BEFORE THE TRIBUNAL IN THE APPEAL FILED IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 07. HOWEVER, WHILE DECIDING THE APPEAL OF THE REVENUE IN ITA NO.4675/MUM./2010, DATED 1 ST APRIL 2 016, THE TRIBUNAL DISMISSED THE ADDITIONAL GROUND S RAISED BY THE REVENUE. IN VIEW OF THE AFO RESAID, WE DECLINE TO ENTERTAIN/ ADMIT THE ADDITIONAL GROUNDS RAISED BY THE REVENUE. 20 . IN GROUND NO.2, THE REVENUE HAS CHALLENGED THE DELETION OF ADDITION MADE OF ` 2,37,64,235, ON ACCOUNT OF COMMISSION INCOME. 21 . BRIEF FACTS ARE, DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE IS ELIGIBLE FOR ADVERTISEMENT COMMISSION @ 15% ON THE TOTAL ADVERTISEMENT REVENUE OBTAINED BY IT FOR THE P RINCIPAL. HE OBSERVED , AS PER THE TERMS OF CONTRACT, REVENUE ACCRUES TO THE ASSESSEE AS AND WHEN THE ADVERTISEMENTS ARE TELECAST. HE OBSERVED , THE ASSESSEE HAS CHANGED THE METHOD OF ACCOUNTING 15 STAR INDIA PVT. LTD. FROM ASSESSMENT YEAR 1997 98 TO SHOW THE COMMISSION INCOME ON R ECEIPT BASIS. OBSERVING THAT IN THE PRECEDING ASSESSMENT YEARS I.E., FOR THE ASSESSMENT YEAR S 1997 98 TO 1999 2000, THE ASSESSING OFFICER BROUGHT THE COMMISSION INCOME TO TAX ON ACCRUAL BASIS , FOLLOWED THE SAME AND MADE AN ADDITION OF ` 2,37,64,235, TO THE INCOME OF THE ASSESSEE. WHILE DECIDING ASSESS EES APPEAL ON THE ISSUE, LEARNED COMMISSIONER (APPEALS) FOUND THAT SUBSEQUENTLY , IDENTICAL ISSUE ARISING IN ASSESSEES OWN CASE IN ASSESSMENT YEAR S 1997 98 TO 1999 2000 WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL AND THE HON'BLE JURISDICTIONAL HIGH COURT UPHELD SUCH DECISION OF THE TRIBUNAL. HE FURTHER OBSERVED , IN THE SUBSEQUENT ASSESSMENT YEARS ALSO, THE TRIBUNAL DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE, FOLLOWING THE DECISION OF THE T RIBUNAL AND THE HON'BLE JURISDICTIONAL H IGH COURT, LEARNED COMMISSIONER (APPEALS) DELETED THE ADDITION. 22 . T HE LEARNED DEPARTMENTAL REPRESENTATIVE, THOUGH, AGREED THAT IN THE PRECEDING ASSESSMENT YEAR S THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE, H OWEVER, HE RELIED UPON THE OBSERVATIONS OF THE ASSESSING OFFICER. 23 . THE LEARNED SR. COUNSEL FOR THE ASSESSEE SUBMITTED , THE ISSUE HAS BEEN CONSISTENTLY DECIDED IN FAVOUR OF THE ASSESSEE NOT ONLY BY THE 16 STAR INDIA PVT. LTD. TRIBUNAL BUT BY THE HON'BLE JURISDICTIONAL HIGH COURT A LSO. THEREFORE, HE SUBMITTED , THERE IS NO MERIT IN THE GROUND RAISED BY THE REVENUE. 24 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD AND THE OBSERVATIONS MADE BY THE ASSESSING OFFICER HIMSELF, THIS IS A RECURRING DISPUTE BETWEEN THE PARTIES FROM THE ASSESSMENT YEAR 1997 98 ONWARDS. IN FACT, AS PER THE ASSESSING OFFICERS OWN OBSERVATION, THE THIRD MEMBER OF THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. NOTABLY, THE DECISION OF T HE TRIBUNAL IN ASSESSMENT YEAR S 1997 98 TO 1999 2000 WAS CHALLENGED BY THE DEPARTMENT BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT. HOW E VER, HON'BLE JURISDICTIONAL HIGH COURT DISMISSED THE APPEALS FILED DEPARTMENT , THEREBY , UPHOLDING THE DECISION OF THE TR IBUNAL. THEREAFTER, IN SUCCESSIVE ASSESSMENT YEARS I.E., ASSESSMENT YEAR S 2000 01 TO 2004 05, THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. IN FACT, WHILE DECIDING REVENUES APPEAL FOR ASSESSMENT YEAR 2006 07 IN ITA NO.4675/MUM./2010, DATED 1 ST APRIL 2016, THE TRIBUNAL HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THEREFORE, FOLLOWING THE CONSISTENT VIEW OF THE TRIBUNAL IN ASSESSEES OWN CASE AS REFERRED TO ABOV E, WE UPHOLD THE DECISION OF LEARNED COMMISSIONER (APPEALS) BY DISMISSING THE GROUND RAISED. 17 STAR INDIA PVT. LTD. 25 . IN GROUND NO.3, THE REVENUE HA S CHALLENGED THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN ALLOWING ASSESSEES CLAIM OF DEPRECIATION ON COMPUTER PERIPHERALS @ 60%. 26 . WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER DISALLOWED ASSESSEES CLAIM OF DEPRECIATION @ 60% ON COMPUTER PERIPHERALS LIKE PRINTER, SCANNER, ROUTERS, SWITCHES, WIRELESS, T PORTS, ETC., BY TREATING THEM AS NORMAL PLANT AND MACHINERY AND NOT PART OF COMPUTER. WHILE DECIDING ASSESSEES APPEAL, LEARNED COMMISSIONER (APPEALS) FOLLOWED HIS DECISION IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2003 04 AND 2004 05 AND ALLOWED DEPRECIATION @ 60% BY TREATING THE ASSETS AS COMPUTER PERIPHERALS. 27 . WE HAVE CONS IDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. NOTABLY, WHILE DECIDING IDENT ICAL ISSUE IN ASSESSEES OWN C ASE FOR ASSESSMENT YEAR S 2003 04 AND 2004 05, THE TRIBUNAL HAS UPHELD THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN ALLOWING ASSESSEES CLAIM OF DEPRECIATION @ 60%. IN FACT, IN THE LATEST ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 07 IN ITA NO.4675/MUM./2010, DATED 1 ST APRIL 2016, THE TRIBUNAL HAS UPHELD THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) IN ALLOW ING ASSESSEES CLAIM OF DEPRECIATION @ 60%. RESPECTFULLY FOLLOWING THE AFORESAID DECISION S OF THE TRIBUNAL IN ASSESSEES OWN CASE, WE UPHOLD THE DECISION OF THE LEARNED CIT(A) BY DISMISSING THE GROUND RAISED. 18 STAR INDIA PVT. LTD. 28 . IN GROUND NO.4, THE REVENUE HAS CHALLENGED THE DELETION OF ADDITION MADE OF ` 1,16,85,052, UNDER SECTION 68 OF THE ACT. 29 . BRIEF FACTS ARE, DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT WHILE PERFORMING THE FUNCTIONS AS A DISTRIBUTOR OF STAR CHANNELS IN INDIA ON BEHALF OF THE PRI NCIPAL, THE ASSESSEE TAKES CERTAIN DEPOSITS FROM CABLE OPERATORS WHICH, ACCORDING TO THE ASSESSEE, ARE REFUNDABLE. HOWEVER, HE OBSERVED , THE ASSESSEE RARELY REFUND THE AMOUNT TO ANY OF THE CABLE OPERATOR S WHO HAVE DISCONTINUED SUBSCRIBING TO STAR CHANNEL. AFTER OBTAINING A LIST OF THE CABLE OPERATORS FROM WHOM DEPOSITS WERE RECEIVED AND CALLING UPON THE ASSESSEE TO FURNISH NECESSARY INFORMATION, THE ASSESSING OFFICER OBSERVED THAT , THOUGH, IN MAJORITY OF C ASES THE ASSESSEE COULD FURNISH THE NAMES, ADDRESSES AND PAN DETAILS OF THE CABLE OPERATORS, HOWEVER, IN CASE OF 32 CABLE OPERATORS REPRESENTING DEPOSITS OF ` 1,16,85,052, THE ASSESSEE COULD NOT FURNISH ADDRESS AND PAN DETAILS. ACCORDINGLY , HE TREATED SUCH DEPOSITS AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT AND ADDED BACK TO THE INCOME OF THE ASSESSEE. AGGRIEVED WITH SUCH ADDITION ASSESSEE FILED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 30 . LEARNED COMMISSIONER (APPEALS) AFTER CONSIDERING THE SU BMISSIONS OF THE ASSESSEE IN THE CONTEXT OF FACTS AND MATERIAL ON RECORD FOUND THAT TH E ASSESSEE HAS FURNISHED ALL RELEVANT INFORMATION 19 STAR INDIA PVT. LTD. RELATING TO THE DEPOSITS RECEIVED , SUCH AS, NAMES, ADDRESS OF THE CABLE OPERATORS ETC . HE ALSO OBSERVED THAT THE ASSESSE E HAS RECEIVED SUCH DEPOSITS AGAINST DE CODER B OXES PROVIDED TO THE CABLE OPERATORS TO DOWNLINK THE SIGNAL. HE OBSERVED , THE ASSESSEE HAS FURNISHED LEDGER COPIES OF THE ACCOUNT OF MOST OF THE CABLE OPERATOR S WHICH INDICATED THAT THE DEPOSITS WERE RECEIVED BY CHE QUE AND THEY HAVE BEEN ADJUSTED/ REFUNDED BACK TO THE CABLE OPERATORS IN THE SUBSEQUENT PERIOD. ON THE BASIS OF THE AFORESAID FACT S, LEARNED COMMISSIONER (APPEALS) ULTIMATELY DELETED ADDITION MADE BY THE ASSESSING OFFICER. 31 . THE LEARNED DEPARTMENTAL RE PRESENTATIVE SUBMITTED , WITHOUT CALLING FOR A REMAND REPOR T FROM THE ASSESSING OFFICER, LEARNED COMMISSIONER (APPEALS) SHOULD NOT HAVE DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. MORE SO, WHEN THE ASSESSEE WAS UNABLE TO FURNISH THE REQUIRED DETAILS BEFORE THE ASSESSING OFFICER. 32 . THE LEARNED SR. COUNSEL FOR THE ASSESSEE SUBMITTED, THE ASSESSEE WHILE DISTRIBUTING CHANNELS ON BEHALF OF ITS PRINCIPAL, GENERALLY DEALS WITH CABLE OPERATORS. HE SUBMITTED , AGAINST THE DE CODER/SET TOP B OXES PROVIDED TO THE CABLE OPERATORS, THE ASSESSEE KEEPS DEPOSIT W HICH IS REFUNDED ON RECEIPT OF SET TOP B OXES. HE SUBMITTED , OUT OF THE AMOUNT OF ` 19 CRORE OF DEPOSITS RECEIVED FROM CABLE OPERATORS, THE ASSESSING OFFICER HAS REJECTED ` 1.68 CRORE WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSEE TO FURNISH THE PAN DETAILS, ETC. THEREFORE, 20 STAR INDIA PVT. LTD. IT CANNOT BE SA ID THAT THE DELETION MADE BY LEARNED COMMISSIONER (APPEALS) IS IMPROPER. FURTHER, HE SUBMITTED , SINCE THE DEPARTMENT HAS NOT TAKEN ANY SPECIFIC GROUND RELATING TO VIOLATION OF RUL E 46A, IT CANNOT SAY THAT LEARNED COMMISSIONER (APPEALS) HAS NOT CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER. WITHOUT PREJUDICE, LEARNED SR. COUNSEL SUBMITTED , NO SUCH ADDITION HAS EVER BEEN MADE BY THE ASSESSING OFFICER SUBSEQUENTLY. 33 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. INSOFAR AS THE PRIMARY FACTS ARE CONCERNED, THERE IS NO DISPUTE THAT WHILE DISTRIBUTING TELEVISION CHANNELS TO THE CABLE OPERATORS I N INDIA, THE ASSESSEE PROVIDES DE CODER/SET TOP B OXES AGAINST WHICH IT RECEIVES CERTAIN DEPOSITS. AS COULD BE SEEN FROM THE DISCUSSIONS MADE BY THE ASSESSING OFFICER, IN A MAJORITY OF CASES THE ASSESSEE HAD FURNISHED THE REQUIRED DETAILS RELATING TO THE DEPOSITS AND CABLE OPER ATORS. HOWEVER, THE ASSESSING OFFICER HAS TREATED THE DEPOSITS OF ` 1.68 CRORE AS UNEXPLAINED CASH CREDIT ON THE GROUND THAT THE ASSESSEE FAILED TO FURNISH PAN DETAILS OF SUCH CABLE OPERATORS. HOWEVER, IT IS EVIDENT , THE FIRST APPELLATE AUTHORITY HAS FACTU ALLY VERIFIED THE CLAIM OF THE ASSESSEE AND HAS FOUND THAT ALL THE DETAILS RELATING TO THE CABLE OPERATORS WHO HAVE MADE DEPOSITS WITH THE ASSESSEE ARE AVAILABLE ON RECORD AND HAVE BEEN DULY REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. FURTHER, HE HA S ALSO RECORDED A 21 STAR INDIA PVT. LTD. FINDING OF FACT THAT NOT ONLY THE DEPOSITS WERE RECEIVED BY CHEQUE BUT SUBSE QUENTLY THEY HAVE BEEN ADJUSTED/ REFUNDED BACK TO THE CABLE OPERATORS. L EARNED DEPARTMENTAL REPRESENTATIVE HAS NOT CONTROVE R TED THE AFORESAID FACTUAL FINDING EXCEP T SUBMITTING THAT LEARNED COMMISSIONER (APPEALS) SHOULD HAVE CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER ON THE SUBMISSIONS MADE BY THE ASSESSEE. IN OUR VIEW, WHEN LEARNED COMMISSIONER (APPEALS) AFTER VERIFYING THE FACTS BROUGHT ON RECORD HAS FOU ND THAT THE DEPOSITS WERE RECEIVED FROM CABLE OPERATORS AND THE AFORESAID FACTUAL FINDING REMAINS UNCONTROVERTED , THERE IS NO REASON TO IN TERFERE WITH THE DECISION OF LEARNED COMMISSIONER (APPEALS). ACCORDINGLY , UPHOLDING THE DECISION OF LEARNED COMMISSION ER (APPEALS), WE DISMISS THE GROUND RAISED BY THE REVENUE. 34 . IN THE RESULT, REVENUES APPEAL IS DISMISSED. 35 . TO SUM UP, ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND REVENUES APPEAL IS DISMISSED. O RDER PRONOUNCED IN THE OPEN COURT ON 15.03.2019 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 15.03.2019 22 STAR INDIA PVT. LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI