AC.C.EN CIR 13, MUMBAI V. IPCA LABORATORIES LTD, MUMBAI

ITA 5745/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8391 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: I
• Next Hearing Date: 09-02-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 28-10-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: N JAYENDRAN
• Keywords: Reopening of assessment; Difference of opinion; Assessment record; Change of opinion
• Section: 143(3); 80HHC; 80IB; 147; 28

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI RAJENDRA SI NGH(AM) ITA NO.5745/M/2009 ASSESSMENT YEAR 2004-05 THE DCIT 9(2), AAYAKAR BHAVAN M/S.IPCA LABORATORI ES LTD. R.NO.218, 2 ND FLOOR, M.K.ROAD, 142 A-B KANDIVLI INDUSTRIAL EST ATE MUMBAI 400 020. CHARKOP,KANDIVLI(W),MUMBAI 400 097 PAN : AAACI 1220 M APPELLANT RESPONDENT CO NO.117/M/2010 M/S.IPCA LABORATORIES LTD. THE DCIT 9(2), BOMBAY CROSS OBJECTOR APPELLANT IN APPEAL REVENUE BY : SHRI S.K. SINGH ASSESSEE BY : SHRI N.JAYENDRAN O R D E R PER RAJENDRA SINGH (AM) THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 21.7.2009 OF CIT(A ) FOR THE ASSESSMENT YEAR 2004-05. THESE ARE BEING DISPOSED OFF BY A SINGLE C ONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. WE FIRST TAKE UP THE CROSS OBJECTION OF THE ASSE SSEE IN CO NO.117/M/2010 IN WHICH THE ASSESSEE HAS CHALLENGED THE LEGAL VAL IDITY OF REOPENING OF ASSESSMENT. THE ORIGINAL ASSESSMENT IN THIS CASE HAD BEEN COMPLETED BY THE AO ON 29.12.2006 UNDER SECTION 143 (3) OF THE INCOME-TAX ACT. THE ASSESSEE IS ENGAGED IN MANUFACTURING OF PH ARMACEUTICALS AND BULK 2 DRUGS. THE ASSESSEE WAS SELLING THE GOODS BOTH IN T HE LOCAL MARKET AND IN THE OVERSEAS MARKET. IN ADDITION TO SELLING/ EXPORTING THE GOODS, THE ASSESSEE HAD ALSO PROVIDED SOME SERVICES TO THE OVERSEAS CLIENTS INCOME FROM WHICH HAD BEEN SHOWN AS SERVICE EXPORT SALE. THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80HHC IN RESPECT OF ENTIRE SALE INCLUDING T HE SERVICE EXPORT SALE. IN THE ORIGINAL ASSESSMENT DATED 29.12.2006THE AO ALLOWED DEDUCTION IN RESPECT OF SERVICE EXPORT SALE ALSO. THE ASSESSEE HAD ALSO REC EIVED EXPORT INCENTIVES TO THE TUNE OF RS. 16,16,14,573/- WHICH INCLUDED DEPB AND DFRC CREDIT OF RS. 10,53,55,436/-. WHILE COMPUTING DEDUCTION UNDER SEC TION 80HHC THE ASSESSEE HAD NOT TREATED THE DEPB AND DFRC CREDIT AS PER THE PROVISIONS OF SECTION 28(III(D). HOWEVER THE AO IN THE ORIGINAL ASSESSME NT HAD ALLOWED THE DEDUCTION AS CLAIMED BY THE ASSESSEE. SUBSEQUENTLY THE AO REOPENED THE ASSESSMENT AFTER RECORDING THE FOLLOWING REASONS : IN THIS CASE, THE ASSESSMENT FOR THE RELEVANT ASSE SSMENT YEAR WAS FINALIZED UNDER SECTION 143(3) ON 29.12.2006 DETERM INING THE ASSESSED INCOME OF RS.73,73,71,300/-. FROM THE ASSESSMENT RECORDS, IT IS NOTICED THAT, A) THE ASSESSEE HAS CREDITED AN AMOUNT OF RS.16,16,14, 573/- TO THE ACCOUNTS AS EXPORT INCENTIVES WHICH INCLUDED DEPB A ND DFRC CREDIT OF RS.10,53,55,436/-. HOWEVER THE ASSESSEE D ID NOT CONSIDER THE DEPB AND DFRC CREDIT OF RS.10,53,55,43 6/- AS PER THE REQUIREMENT OF SUB SECTION (III)(D) OF SECTION 28 OF THE ACT AND COMPUTED THE DEDUCTIONS TOWARDS EXPORT PROFITS ACCO RDINGLY. IN 3 DOING SO, EXCESS ALLOWANCE OF DEDUCTION OF RS.1,63, 18,806/- UNDER SECTION 80HHHC HAS BEEN WRONGLY ALLOWED. B) THE ELIGIBLE PROFIT FOR THE CLAIM OF DEDUCTION UNDE R SECTION 80IB INCLUDED RS.2,23,19,091/- BEING SERVICE EXPORT SALE S WHICH CANNOT BE TREATED AS INCOME DERIVED FROM MANUFACTUR ING ACTIVITIES. DUE TO THIS EXCESS DEDUCTION UNDER SECT ION 80IB OF RS.66,95,727/- (BEING 30% OF THE ELIGIBLE PROFIT) H AS BEEN WRONGLY ALLOWED. I HAVE THEREFORE REASONS TO BELIEVE THAT THE INCOME TO THAT EXTENT HAS ESCAPED ASSESSMENT. I THEREFORE PROCEED TO REOPEN T HE ABOVE MENTIONED ASSESSMENT YEAR I.E. A.Y.2004-05 AS PER THE PROVISI ONS OF THE SECTION 147 OF THE INCOME-TAX ACT. 2.1 THE ASSESSEE CHALLENGED THE LEGAL VALIDITY OF R EOPENING OF ASSESSMENT BEFORE THE CIT(A). IT WAS SUBMITTED THAT THOUGH THE ASSESSMENT HAD BEEN REOPENED WITHIN THE PERIOD OF FOUR YEARS FROM THE E ND OF RELEVANT ASSESSMENT YEAR, THE REOPENING WAS BASED ON CHANGE OF OPINION WHICH WAS NOT PERMITTED. IT WAS POINTED OUT THAT FULL DETAILS OF THE WORKING OF THE CLAIM UNDER SECTION 80IB AND 80HHC HAD BEEN GIVEN BEFORE THE AO AND AFT ER CONSIDERING THE SAME THE AO HAD ALLOWED THE CLAIM IN THE ORIGINAL ASSESS MENT. THEREFORE REOPENING OF THE ASSESSMENT BASED ON THE SAME MATERIAL WAS NO T JUSTIFIED AS CHANGE OF OPINION WAS NOT PERMITTED. CIT(A) WAS NOT SATISFIED BY THE ARGUMENTS ADVANCED. IT WAS OBSERVED BY HIM THAT REOPENING OF ASSESSMENT WAS POSSIBLE IN CASE CLAIM HAD BEEN ALLOWED BY WRONG APPRECIATI ON OF LEGAL PROVISIONS. RELIANCE WAS PLACED ON THE DECISION OF MUMBAI BENCH OF TRIBUNAL IN CASE OF MONISHA PATEL VS ITO (22 SOT 329) AND THE DECISION OF CALCUTTA BENCH OF TRIBUNAL IN CASE OF SOM DUTT BUILDERS PVT. LTD VS D CIT (98 ITR 78). CIT(A) ALSO 4 REFERRED TO THE JUDGMENT OF HONBLE HIGH COURT OF M UMBAI IN ASSESSEES OWN CASE REPORTED IN 251 ITR 420 IN WHICH IT WAS HELD T HAT WHERE A MISTAKE WENT UNNOTICED BY THE AO IN ORIGINAL ORDER THE CASE WAS COVERED BY THE EXPLANATION 2(III) OF SECTION 147. CIT(A) ACCORDINGLY UPHELD TH E VALIDITY OF REOPENING OF ASSESSMENT. CIT(A) HOWEVER ALLOWED RELIEF UNDER SEC TION 80IB TO THE ASSESSEE ON MERIT. AGGRIEVED BY THE SAID DECISION, REVENUE H AS FILED APPEAL TO THE TRIBUNAL. THE ASSESSEE HAS FILED THE CO TO SUPPORT THE ORDER OF CIT(A) IN WHICH THE CLAIM OF THE ASSESSEE HAS ALREADY BEEN ALLOWED ON MERIT. 2.2 BEFORE US THE LEARNED AR FOR THE ASSESSEE REITE RATED THE SUBMISSIONS MADE BEFORE LOWER AUTHORITIES THAT THE REOPENING WA S BASED ON CHANGE OF OPINION AND THEREFORE ILLEGAL. IT WAS SUBMITTED THA T SEPARATE DETAILS OF SERVICE EXPORT SALES HAD BEEN GIVEN IN THE SCHEDULE 7 OF TH E AUDITED ACCOUNTS PLACED BEFORE THE AO AND THE AO HAD ALLOWED THE CLAIM UNDE R SECTION 80IB IN RESPECT OF SERVICE EXPORT SALES IN THE ORIGINAL ASSESSMENT. THE AO LATER REOPENED THE ASSESSMENT BASED ON THE SAME MATERIAL. THERE WAS TH EREFORE CHANGE OF OPINION WHICH WAS NOT PERMITTED UNDER SECTION 147. SIMILARLY COMPLETE DETAILS REGARDING WORKING OF DEDUCTION UNDER SECTION 80HHC GIVING DETAILS OF DEPB AND DFRC CREDIT WAS THERE BEFORE THE AO AT THE TIME OF ORIGINAL ASSESSMENT WHO HAD ALLOWED THE CLAIM AFTER DUE CONSIDERATION. THER EFORE REOPENING WAS BASED ON CHANGE OF OPINION. RELIANCE WAS PLACED ON THE JU DGMENT OF HONBLE HIGH COURT OF MUMBAI IN CASE OF CARTINI INDIA LTD. VS AD DL.CIT (179 TAXMAN 157). THE LEARNED DR ON THE OTHER HAND SUPPORTED THE ORDE R OF CIT(A) HOLDING THAT THE REOPENING WAS LEGALLY VALID. IT WAS SUBMITTED T HAT IN CASE ERRORS WERE COMMITTED IN THE ORIGINAL ASSESSMENT AND SOME EXCES SIVE RELIEF WAS GIVEN, THE AO WAS ENTITLED TO REOPEN THE ASSESSMENT AS HELD BY HONBLE HIGH COURT OF 5 MUMBAI IN CASE OF IPCA LABORATORIES VS DCIT (251 IT R 420) RELIED UPON BY THE CIT(A). 2.3 WE HAVE PERUSED THE RECORDS AND CONSIDERED THE RIVAL CONTENTIONS CAREFULLY. THE DISPUTE IS REGARDING LEGAL VALIDITY OF REOPENING OF THE ASSESSMENT. THE ORIGINAL ASSESSMENT HAD BEEN COMPLE TED UNDER SECTION 143(3) ON 29.12.2006 IN WHICH CLAIM OF DEDUCTION UNDER SEC TION 80IB IN RELATION TO SERVICE EXPORT SALES OF RS. 2,23,19,091/- HAD BEEN ALLOWED AS CLAIMED. IN THE SAID ASSESSMENT THE AO HAD ALSO ALLOWED THE CLAIM O F DEDUCTION UNDER SECTION 80HHC IN RELATION TO DEPB & DFRC INCOME. SUBSEQUENT LY THE ASSESSMENT WAS REOPENED ON THE GROUND THAT THE ASSESSEE HAD BEEN A LLOWED EXCESSIVE RELIEF IN THE ORIGINAL ASSESSMENT. THE EXPLANATION 2 OF SECTI ON 147 SPECIFIES CERTAIN SITUATIONS IN WHICH INCOME CHARGEABLE TO TAX IS DEE MED TO HAVE ESCAPED ASSESSMENT AND ONE SUCH SITUATION AS MENTIONED IN E XPLANATION 2(C )(III) IS THAT SUCH INCOME HAS BEEN MADE THE SUBJECT OF EXCESSIVE RELIEF UNDER THE ACT. THEREFORE IN CASE IN ANY ASSESSMENT EXCESSIVE RELIE F HAS BEEN ALLOWED, IT WILL BE A CASE OF DEEMED ESCAPEMENT OF INCOME AND REOPENING OF ASSESSMENT UNDER SECTION 147 WILL BE LEGALLY IN ORDER. THE LEARNED A R FOR THE ASSESSEE HAD ARGUED THAT SINCE THE CLAIM HAD BEEN ALLOWED IN THE ORIGINAL ASSESSMENT ON THE BASIS OF THE SAME MATERIAL, REOPENING THE ASSESSMEN T WOULD BE BASED ON CHANGE OF OPINION WHICH WAS NOT ALLOWED. RELIANCE H AS BEEN PLACED ON THE JUDGMENT OF HONBLE HIGH COURT OF MUMBAI IN CASE OF CARTINI INDIA LTD. (179 TAXMAN 157) IN WHICH IT HAS BEEN HELD THAT REOPENIN G OF THE ASSESSMENT BASED ON THE MATERIAL ALREADY CONSIDERED IN THE ORIGINAL ASSESSMENT WOULD AMOUNT TO REVIEW OF THE ASSESSMENT WHICH WAS NOT PERMITTED. H OWEVER WE NOTICE THAT IN THE SAID CASE SPECIFIC PROVISIONS OF EXPLANATION 2( C ) (III) WAS NOT BEFORE THE HIGH COURT. WE ALSO FIND THAT THE CASE OF THE ASSES SEE IS IDENTICAL TO THE CASE OF 6 IPCA LABORATORIES REPORTED IN 251 ITR 420 IN WHICH THE ASSESSEE HAD BEEN ALLOWED EXCESSIVE RELIEF UNDER SECTION 80HHC IN THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) AS DEDUCTION HAD BEEN ALLOWED EVEN W HEN THERE WAS NET LOSS. SUBSEQUENTLY THE ASSESSMENT WAS REOPENED AND THE AO DENIED THE CLAIM OF DEDUCTION UNDER SECTION 80HHC. REOPENING WAS CHALLE NGED. THE HONBLE HIGH COURT NOTED THAT IT HAD ALREADY HELD IN ASSESSEES OWN CASE VIDE ORDER DATED 2.7.2001 REPORTED IN 251 ITR 401 THAT DEDUCTION UND ER SECTION 80HHC COULD NOT BE ALLOWED WHEN THE NET INCOME WAS NEGATIVE. TH E HONBLE HIGH COURT ALSO OBSERVED THAT AN INDIGENOUS METHOD CLAIMING DEDUCTI ON EVEN IN CASE OF LOSS HAD GONE UNNOTICED BY THE AO IN THE ORIGINAL ASSESS MENT WHICH WAS ONE OF THE SPECIFIC SITUATIONS COVERED UNDER EXPLANATION 2(C ) (III) AND THEREFORE VALIDITY OF REOPENING UNDER SECTION 147 WAS UPHELD. 2.4 IT MAY BE NOTED THAT, AS IN THE PRESENT CASE, IN THAT CASE ALSO AT THE TIME OF RECORDING OF REASON FOR REOPENING, THE JUDG MENT DATED 2.7.2001 WAS NOT AVAILABLE AND HAD BEEN DELIVERED LATER. THE SIT UATION IS IDENTICAL IN THE PRESENT CASE AS IN THIS CASE ALSO HONBLE SUPREME C OURT IN CASE OF LIBERTY INDIA LTD. (317 ITR 218) WHILE INTERPRETING THE PHRASE P ROFIT DERIVED FROM BUSINESS OF UNDERTAKING IN CONNECTION WITH THE CLAIM OF DED UCTION UNDER SECTION 80IA AND 80IB HAVE HELD THAT ONLY THE PROFIT HAVING DIRE CT NEXUS WITH THE BUSINESS OF THE UNDERTAKING I.E THE OPERATIONAL PROFIT OF ELIGI BLE BUSINESS HAS TO BE CONSIDERED AND NOT ANY OTHER INCOME ATTRIBUTABLE TO SUCH BUSINESS. IT MAY BE NOTED THAT UNDER SECTION 80IB DEDUCTION IS ALLOWABL E ONLY IN CASE OF UNDERTAKINGS ENGAGED IN THE MANUFACTURING OR PRODUC TION OF ANY ARTICLE OR THING. THEREFORE THE ELIGIBLE BUSINESS WILL BE THE MANUFACTURING ACTIVITY AND ONLY THE OPERATION PROFIT FROM SUCH ELIGIBLE BUSINE SS CAN BE CONSIDERED FOR DEDUCTION UNDER SECTION 80IB. IN THE PRESENT CASE T HE ASSESSEE WAS ENGAGED IN 7 MANUFACTURING OF PHARMACEUTICALS AND BULK DRUGS. IT HAD ALSO PROVIDED CERTAIN SERVICES RELATING TO THE PRODUCT DEVELOPMENT TO OVE RSEAS CLIENTS INCOME FROM WHICH HAD BEEN SHOWN AS SERVICE EXPORT SALES. THE S ERVICE EXPORT SALES THOUGH IT MAY BE INCIDENTAL OR ATTRIBUTABLE TO THE BUSINES S OF UNDERTAKING IT COULD NOT BE CALLED AS THE PROFIT FROM THE ELIGIBLE BUSINESS WHICH IS THE MANUFACTURING ACTIVITY. THEREFORE IN VIEW OF THE SAID JUDGMENT OF HONBLE SUPREME COURT SETTLING THE LEGAL POSITION, THE REOPENING OF THE A SSESSMENT UNDER EXPLANATION 2(C )(III) OF SECTION 147 ON THE GROUND EXCESSIVE R ELIEF UNDER SECTION 80IB IS JUSTIFIED IN VIEW OF THE JUDGMENT OF HONBLE HIGH C OURT OF MUMBAI IN CASE OF IPCA LABORATORIES VS DCIT (251 ITR 420). SIMILAR IS THE POSITION IN RELATION TO EXCESSIVE RELIEF UNDER SECTION 80HHC IN RELATION TO DEPB/ DFRC INCOME. HONBLE HIGH COURT OF MUMBAI IN CASE OF CIT VS KALP ATARU COLOURS & CHEMICASL (328 ITR 451) HAVE RECENTLY HELD THAT ENTIRE DEPB I NCOME INCLUDING THE FACE VALUE HAS TO BE CONSIDERED UNDER SECTION 28(III)(D) . THEREFORE IN OUR VIEW REOPENING OF ASSESSMENT UNDER SECTION 147 ON THE GR OUND EXCESSIVE RELIEF IN THE ORIGINAL ASSESSMENT CANNOT BE HELD INVALID. WE THEREFORE CONFIRM THE ORDER OF CIT(A) UPHOLDING THE LEGAL VALIDITY OF REOPENING OF THE ASSESSMENT AND DISMISS THE CROSS OBJECTIONS RAISED BY THE ASSESSEE . 3. WE NOW TAKE UP THE APPEAL OF THE REVENUE IN ITA NO.5745/M/2009 . THE ONLY DISPUTE RAISED IS REGARDING ALLOWABILITY O F DEDUCTION UNDER SECTION 80IB IN RESPECT OF SERVICE EXPORT INCOME OF RS.2,23 ,19,091/-. THE ASSESSEE AS MENTIONED EARLIER WAS ENGAGED IN MANUFACTURING OF P HARMACEUTICALS AND BULK DRUGS. THE ASSESSEE HAD ALSO PROVIDED CERTAIN SERVI CES TO THE OVERSEAS CLIENTS IN DEVELOPMENT OF SOME PRODUCTS INCOME FROM WHICH H AD BEEN SHOWN AS SERVICE EXPORT INCOME. THE ASSESSEE HAD EXPLAINED B EFORE THE AO THAT IT HAD BILLED THE COST INCURRED FOR DEVELOPMENT OF THE PRO DUCT WHICH INCLUDED 8 VALIDATION COST, OF BATCHES, BATCH TRIAL COST, ANAL YTICAL TESTING AND STABILITY DATA ETC. IT WAS ALSO SUBMITTED THAT SERVICE EXPORT SALE WAS NOTHING BUT REIMBURSEMENT OF COST. THE ASSESSEE FURTHER ARGUED THAT THE DEDUCTION UNDER SECTION 80IB WAS AVAILABLE IN RESPECT OF INCOME DER IVED FROM BUSINESS OF THE UNDERTAKING WHICH WAS WIDE ENOUGH TO INCLUDE ANY OT HER INCIDENTAL INCOME ALSO. AO HOWEVER DID NOT ACCEPT THE ARGUMENT AND DE NIED THE CLAIM OF DEDUCTION ON THE GROUND THAT THE INCOME WAS NOT DER IVED FROM THE MANUFACTURING ACTIVITY. IN APPEAL CIT(A) HAS HOWEVE R ALLOWED THE CLAIM OF THE ASSESSEE FOLLOWING THE JUDGMENT OF HONBLE HIGH COU RT OF DELHI IN CASE OF CIT VS ELTEX SGS PVT. LTD. (300 ITR 6) IN WHICH DUTY DR AWBACK WAS HELD ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA. AGGRIEVED BY THE SAID DECISION THE REVENUE IS IN APPEAL. 3.1 WE HAVE HEARD BOTH THE PARTIES, PERUSED THE REC ORDS AND CONSIDERED THE MATTER CAREFULLY. THE DISPUTE IS REGARDING ALLOWABI LITY OF DEDUCTION UNDER SECTION 80IB IN RESPECT OF SERVICE EXPORT SALES WHI CH HAD BEEN RECEIVED BY THE ASSESSEE FROM PRODUCT DEVELOPMENT SERVICES PROVIDED TO THE OVERSEAS CLIENTS. THE ASSESSEE IS IN THE BUSINESS OF MANUFACTURING OF PHARMACEUTICALS AND BULK DRUGS. THE HONBLE SUPREME COURT RECENTALY IN CASE OF LIBERTY INDIA LTD (317 ITR 218) WHILE INTERPRETING THE PHRASE PROFIT DERI VED FROM BUSINESS OF UNDERTAKING HAVE HELD THAT ONLY THE OPERATIONAL PR OFIT FROM THE ELIGIBLE BUSINESS OF THE UNDERTAKING CAN BE CONSIDERED FOR D EDUCTION AND NOT ANY PROFIT ATTRIBUTABLE TO THE SAID BUSINESS. THE DEDUCTION UN DER SECTION 80IB IS ALLOWABLE ONLY TO THE UNDERTAKING ENGAGED IN MANUFACTURING OF CERTAIN GOODS. THEREFORE IN OUR VIEW ONLY THE OPERATIONAL INCOME FROM THE EL IGIBLE BUSINESS WHICH IS THE MANUFACTURING ACTIVITY WILL BE ALLOWABLE AS DEDUCTI ON. THE SERVICE EXPORT SALES WHICH MAY BE INCIDENTAL OR ATTRIBUTABLE TO THE ELIG IBLE BUSINESS CANNOT BE 9 CONSIDERED FOR DEDUCTION. HOWEVER, WE MAY MAKE IT C LEAR THAT WHILE EXCLUDING THE SERVICE EXPORT INCOME THE EXPENDITURE INCURRED FOR DEVELOPMENT OF PRODUCT SERVICES HAVE ALSO TO BE EXCLUDED WHILE COMPUTING T HE PROFIT FROM THE ELIGIBLE BUSINESS AS THE ASSESSEE HAD MADE SPECIFIC CLAIM BE FORE THE AUTHORITIES BELOW THAT THE INCOME WAS ONLY ON ACCOUNT OF REIMBURSEMEN T OF COST. THIS ASPECT WAS HOWEVER NOT EXAMINED. WE THEREFORE RESTORE THIS ISS UE TO THE FILE OF AO FOR PASSING A FRESH ORDER AFTER NECESSARY EXAMINATION I N THE LIGHT OF OBSERVATIONS MADE ABOVE AND AFTER ALLOWING OPPORTUNITY OF HEARIN G TO THE ASSESSEE. 4. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLOW ED FOR STATISTICAL PURPOSE WHEREAS THE CROSS OBJECTION OF THE ASSESSEE IS DISM ISSED. 5. THE DECISION WAS PRONOUNCED IN THE OPEN COURT 23 .02.2011. SD/- SD/- ( D.K. AGARWAL ) (RAJEN DRA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 23.02.2011 AT :MUMBAI COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), MUMBAI CONCERNED 4. THE CIT, MUMBAI CITY CONCERNED 5. THE DR I BENCH, ITAT, MUMBAI // TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ALK