INDUSTRIAL INVESTMENT TRUST LTD, MUMBAI V. DCIT CIR 2(2), MUMBAI

ITA 6138/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1062 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 1997-1998
• Appeal Filed On: 23-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Keywords: Depreciation; Tangible material; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 195; 143(2); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, I, MUMBAI BEFORE SHRI R V EASWAR, PRESIDENT AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER I T A NO: 6138/MUM/2009 (ASSESSMENT YEAR: 1997-98) INDUSTRIAL INVESTMENT TRUST LTD., MUMBAI APPELLA NT (PAN: AAACI1262R) VS DEPUTY COMMISSIONER OF INCOME TAX RESPONDENT CIRCLE 2(2), MUMBAI APPELLANT BY: SHRI VIJAY MEHTA RESPONDENT BY: SHRI SUMEET KUMAR O R D E R R V EASWAR, PRESIDENT: THIS APPEAL BY THE ASSESSEE RELATES TO THE ASSESSM ENT YEAR 1997-98 AND ARISES OUT OF THE REASSESSMENT ORDER PA SSED BY THE ASSESSING OFFICER ON 24.01.2005 UNDER SECTION 143(3 ) READ WITH SECTION 147 OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE IS A COMPANY ENGAGED IN LEASING, HI RE PURCHASING, FINANCE AND INVESTMENT BUSINESS. THE O RIGINAL ASSESSMENT WAS COMPLETED ON 21.03.2000 UNDER SECTIO N 143(3) OF THE ACT. IN THIS ASSESSMENT THE ASSESSEE WAS ALLOW ED DEDUCTION OF RS.1,99,60,000/- UNDER SECTION 80M AND RS.12,29,650 /- UNDER SECTION 80-O. 3. ON 25.02.2004 THE ASSESSEE WAS ISSUED A NOTICE U NDER SECTION 148 OF THE ACT ON THE GROUND THAT INCOME CH ARGEABLE TO TAX HAD ESCAPED ASSESSMENT. THE REASONS RECORDED BY TH E AO UNDER SECTION 148(2) FOR ISSUING THE NOTICE WERE AS UNDER : - ITA NO: 6138/MUM/2009 2 IT WAS NOTICED AFTERWARDS THAT WHILE ALLOWING DEDUCTION U/S 80M AT RS.1,99,60,000/-, THE PROPORTIONATE MANAGEMENT EXPENSES WERE NOT DEDUCTED FROM THE GROSS DIVIDEND RECEIVED FOR WHICH SUCH DEDUCTION WAS CLAIMED. THE PROPORTIONATE MANAGEMENT EXPENSES COME TO RS.1,35,42,617/- FOR EARNING DIVIDEND INCOME OF RS.2,51,64,883/-. THE DEDUCTION U/S 80M THEREFORE SHOULD HAVE BEEN ALLOWED AT RS.1,16,22,216/- ONLY AGAINST RS.1,99,60,000/-. APPLYING THE SAME RATIO, AFTER DEDUCTING PROPORTION ATE EXPENSES FROM THE TOTAL CLAIM OF THE ASSESSEE, THE DEDUCTION U/S 80-O WOULD BE RS.5,72,525/- AS AGAINS T RS.12,29,650/- AS ALLOWED VIDE THE ORDER U/S 143(3) . THE ASSESSEE HAS FAILED TO BRING THE ABOVE DESCRIBE D FACTS ON RECORD. IN RESPONSE TO THE NOTICE THE ASSESSEE WOULD APPEAR TO HAVE FILED A RETURN WHICH WAS ENQUIRED INTO UNDER SECTION 143(2) . IN THE COURSE OF THE REASSESSMENT PROCEEDINGS THE ASSESSEE OBJECT ED TO THE REOPENING OF THE ASSESSMENT ON THE GROUND THAT THER E WAS NO FAILURE ON ITS PART TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE COMPLETION OF ITS ASSESSMENT. TH E ASSESSEE ALSO SUBMITTED THAT THE DEDUCTIONS UNDER SECTION 80M AND SECTION 80-O WERE PROPERLY ALLOWED IN THE ORIGINAL ASSESSMENT. THE CONTENTIONS OF THE ASSESSEE BOTH AGAINST THE JURISDICTION TO RE OPEN THE ASSESSMENT AND THE MERITS OF THE CLAIMS UNDER SECTI ONS 80M AND 80-O, WERE REJECTED BY THE AO. AFTER DEALING WITH THE OBJECTIONS HE HELD THAT UNDER SECTION 80AA, WHICH GOVERNS BOTH SE CTION 80M AND SECTION 80-O, THE DEDUCTION IS TO BE ALLOWED WITH R EFERENCE TO THE NET INCOME AS COMPUTED IN ACCORDANCE WITH THE PROVI SIONS OF THE ACT AND, THEREFORE, THE PROPORTIONATE MANAGEMENT EX PENSES INCURRED BY THE ASSESSEE SHOULD BE DEDUCTED FROM TH E GROSS RECEIPTS BOTH FOR THE PURPOSES OF SECTION 80M AND S ECTION 80-O. HE ITA NO: 6138/MUM/2009 3 REFERRED TO THE JUDGMENT OF THE SUPREME COURT IN CI T VS. UNITED GENERAL TRUST LTD. (1993) 200 ITR 488 (SC) AND THE DECISIONS OF THE BOMBAY HIGH COURT IN CIT VS. ALBRIGHT MORARJI A ND PANDIT LTD. (1999) 236 ITR 914 (BOM) AND CIT VS. MAGANLAL CHHAG ANLAL (P) LTD. (1999) 236 ITR 456 (BOM). HE FOUND THAT THE A SSESSEE HAS INCURRED MANAGEMENT EXPENSES OF RS.6,87,81,238/- WH ICH WERE DEBITED TO THE PROFIT AND LOSS ACCOUNT FOR THE YEAR . OUT OF THE SAME HE ATTRIBUTED RS.2,51,64,883/- TOWARDS THE EAR NING OF DIVIDEND INCOME. THE RESULT WAS THAT THE DEDUCTION UNDER SECTION 80M WAS REDUCED BY RS.83,37,784/-. ON THE SAME BAS IS HE ALSO COMPUTED THE DEDUCTION UNDER SECTION 80-O AT RS.5,7 2,525/- AS AGAINST RS.12,29,650/- ALLOWED IN THE ORIGINAL ASSE SSMENT, THUS RESULTING IN EXCESS ALLOWANCE OF RS.6,57,125/-. TH E REASSESSMENT WAS ACCORDINGLY COMPLETED ON A TOTAL INCOME OF RS.2 ,44,15,490/-. 4. THE ASSESSEE FILED AN APPEAL TO THE CIT(A), WHO REJECTED THE ASSESSEES OBJECTIONS TO THE JURISDICTION OF THE AO TO REOPEN THE ASSESSMENT. AS REGARDS THE ASSESSEES OBJECTIONS O N THE MERITS ALSO THE CIT(A) AGREED WITH THE AOS COMPUTATION OF THE DEDUCTIONS UNDER SECTIONS 80M AND 80-O. HE THUS DISMISSED THE ASSESSEES APPEAL AGAINST WHICH THE ASSESSEE IS IN FURTHER APP EAL BEFORE THE TRIBUNAL. 5. IN THE FIRST TWO GROUNDS THE ASSESSEE HAS CHALLE NGED THE JURISDICTION OF THE AO TO REOPEN THE ASSESSMENT, TH E CONTENTION IN ESSENCE BEING THAT THERE WAS NO FAILURE ON THE PART OF THE ASSESSEE TO FURNISH FULL AND TRUE PARTICULARS AT THE TIME OF THE ORIGINAL ASSESSMENT AND, THEREFORE, THE AO HAD NO JURISDICTI ON TO REOPEN THE ITA NO: 6138/MUM/2009 4 ASSESSMENT. WE ARE CONCERNED WITH THE ASSESSMENT Y EAR 1997-98 AND THE PERIOD OF FOUR YEARS FROM THE END OF THE AS SESSMENT YEAR EXPIRED ON 31.03.2002. THE NOTICE UNDER SECTION 14 8 WAS ISSUED ON 25.02.2004, WHICH IS BEYOND THE PERIOD OF FOUR Y EARS FROM THE END OF THE ASSESSMENT YEAR. ACCORDING TO THE PROVI SO TO SECTION 147, NO ACTION SHALL BE TAKEN FOR REOPENING THE ASS ESSMENT AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVA NT ASSESSMENT YEAR, UNLESS THE ESCAPEMENT OF INCOME IS THE RESULT OF THE FAILURE ON THE PART OF THE ASSESSEE EITHER TO FILE A RETURN OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSME NT FOR THAT YEAR. THE AO HAS NOT ALLEGED THAT THERE WAS ANY FAILURE O N THE PART OF THE ASSESSEE TO FILE THE RETURN OF INCOME. FROM THE RE ASONS RECORDED IT IS SEEN THAT HIS CASE IS THAT THE ASSESSEE HAD FAIL ED TO BRING CERTAIN FACTS ON RECORD. WE ARE UNABLE TO AGREE WITH THE R EASONS RECORDED BY THE AO INASMUCH AS IT RECORDS THAT THE ASSESSEE HAS FAILED TO FURNISH THE RELEVANT FACTS RELATING TO THE DEDUCTIO NS UNDER SECTIONS 80M AND 80-O. THE ASSESSEE HAS SUBMITTED THE PROFI T AND LOSS ACCOUNT ALONG WITH THE RETURN OF INCOME AND THIS HA S BEEN ACKNOWLEDGED IN THE VERY FIRST PARAGRAPH OF THE REA SSESSMENT ORDER. THE PROFIT AND LOSS ACCOUNT FILED ALONG WIT H THE ORIGINAL RETURN OF INCOME ON 01.12.1997 SHOWED MANAGEMENT EX PENSES OF RS.3,05,17,156/-. IN THE ORIGINAL ASSESSMENT ORDER DATED 21.03.2000 PASSED UNDER SECTION 143(3) OF THE ACT, THE AO DEALT WITH THE ASSESSEES CLAIMS IN CONSIDERABLE DETAIL. SO FAR AS THE DEDUCTION UNDER SECTION 80M IS CONCERNED, HE NOTED THAT THE DEDUCTION WAS CLAIMED WITHOUT REDUCING THE INTEREST EXPENSES. ITA NO: 6138/MUM/2009 5 WHEN THE ASSESSEE POINTED OUT THAT THE INVESTMENT I N THE SHARES CAME OUT OF OWN FUNDS, THE AO AGREED AFTER FINDING THAT THE ASSESSEES CLAIM WAS CORROBORATED BY MATERIAL ON RE CORD. HE ALSO HELD THAT THE DEDUCTION WAS AVAILABLE ONLY ON THE N ET INCOME AND NOT ON THE GROSS DIVIDEND AND ACCORDINGLY DISALLOWE D RS.40,000/- FROM SALARIES AS EXPENSES HAVING BEEN INCURRED TO E ARN THE DIVIDEND. AS REGARDS THE DEDUCTION UNDER SECTION 8 0-O, HERE AGAIN THE AO OBSERVED THAT IT HAS TO BE GIVEN ON THE NET INCOME ONLY. HE PROPOSED TO DISALLOW A PART OF THE DIRECT AND INDIR ECT EXPENSES INCURRED BY THE ASSESSEE TO EARN THE FOREIGN RECEIP TS. THE ASSESSEE ALSO AGREED THAT SUCH OF THOSE EXPENSES WH ICH WERE INCURRED TO EARN THE FOREIGN RECEIPTS HAVE TO BE DE DUCTED BUT CONTENDED THAT SINCE SUCH EXPENSES HAVE BEEN REIMBU RSED FULLY BY THE FOREIGN CLIENTS, THE DEDUCTION WAS ACTUALLY CLA IMED ONLY ON NET RECEIPTS. THE AO THEREUPON AGREED WITH THE ASSESSE ES CONTENTION BUT STILL HELD THAT SOME INDIRECT EXPENSES HAVE TO BE ATTRIBUTED TO THE EARNING OF THE FOREIGN RECEIPTS AND HE ESTIMATE D THIS TO BE RS.20,000/- AND THE DEDUCTION UNDER SECTION 80-O WA S REWORKED ACCORDINGLY. THESE FACTS WOULD SHOW THAT NOT ONLY HAD THE ASSESSEE FURNISHED ALL THE RELEVANT PARTICULARS REL ATING TO THE CLAIM BEFORE THE AO AT THE TIME OF THE ORIGINAL ASSESSMEN T, BUT ALSO THAT THE AO HAD EXAMINED THE CLAIM IN CONSIDERABLE DETAI L, BEING AWARE OF THE LEGAL POSITION THAT THE DEDUCTIONS CAN BE AL LOWED ONLY ON THE NET INCOME AND NOT ON THE GROSS RECEIPTS. THE PROF IT AND LOSS ACCOUNT WAS BEFORE THE AO AND THE EXPENSES WERE DEB ITED THEREIN OUT OF WHICH HE HAD ALSO PICKED OUT CERTAIN EXPENSE S AND ESTIMATED ITA NO: 6138/MUM/2009 6 A PART THEREOF AS ATTRIBUTABLE TO THE EARNING OF TH E DIVIDEND INCOME AND THE FOREIGN INCOME. THE ASSESSEE CANNOT THEREF ORE BE HELD TO HAVE FAILED TO FURNISH FULL AND TRUE PARTICULARS TO THE AO AT THE TIME OF THE ORIGINAL ASSESSMENT. THE DUTY OF THE ASSESS EE STOPS THERE AND IT IS NOT FOR THE ASSESSEE TO INFORM THE AO AS TO WHAT INFERENCES HE SHOULD DRAW FROM THE FACTS FURNISHED. THERE IS ALSO NO NEW OR FRESH TANGIBLE MATERIAL WHICH CAME INTO THE POSSESS ION OF THE AO AFTER THE COMPLETION OF THE ORIGINAL ASSESSMENT. E VEN IN THE REASONS RECORDED BY HIM UNDER SECTION 148(2), WHAT HE HAS STATED IS THAT HE NOTICED, AFTER THE COMPLETION OF THE ORI GINAL ASSESSMENT THAT THE PROPORTIONATE MANAGEMENT EXPENSES WERE NOT DEDUCTED FROM THE DIVIDEND INCOME AND THE FOREIGN INCOME WHI LE ALLOWING THE DEDUCTIONS UNDER SECTIONS 80M AND 80-O RESPECTIVELY . WE HAVE ALREADY SEEN THAT THE ASSESSEE HAS PROMINENTLY DISC LOSED THE MANAGEMENT EXPENSES OF RS.3,05,17,156/- IN ITS PROF IT AND LOSS ACCOUNT FOR THE YEAR ENDED 31.03.1997, WHICH THE YE AR UNDER APPEAL. THE AO HAD ALSO ENQUIRED INTO THE CLAIMS A ND HAD MADE ESTIMATED DISALLOWANCE OF EXPENSES INCURRED ON SALA RIES AND OTHER OFFICE EXPENSES AGAINST THE DIVIDEND AND FOREIGN IN COME. IN THESE CIRCUMSTANCES, IT IS DIFFICULT TO UPHOLD THE CORREC TNESS OF HIS STATEMENT, IN THE REASONS RECORDED, TO THE EFFECT T HAT THE ASSESSEE HAD FAILED TO BRING THE FACTS ON RECORD AT THE TIME OF THE ORIGINAL ASSESSMENT. AS ALREADY NOTED, THE ASSESSEE CAN ONL Y PLACE ALL THE FACTS BEFORE THE AO IN RELATION TO THE CLAIMS FOR D EDUCTION UNDER SECTIONS 80M AND 80-O BUT IT IS NOT FOR THE ASSESSE E TO TELL THE AO WHAT INFERENCES THE LATTER SHOULD DRAW THEREFROM. ITA NO: 6138/MUM/2009 7 6. WE MAY BRIEFLY NOTICE A FEW AUTHORITIES CITED BY THE LEARNED REPRESENTATIVE FOR THE ASSESSEE. THE FIRST IS THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. AND ANOTHER (2010) 320 ITR 561 (SC) DECIDED BY THE SUPREME COURT. IN THIS CASE THE ORI GINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) AND W AS REOPENED THEREAFTER UNDER SECTION 147. THE SUPREME COURT HELD THAT THERE IS A CONCEPTUAL DIFFERENCE BETWEEN THE P OWER OF REVIEW AND THE POWER TO REASSESS AND THAT WHEREAS THE AO H AS THE POWER TO REASSESS, HE HAS NO POWER TO REVIEW. IT WAS ALS O HELD THAT THE ASSESSMENT CANNOT BE REOPENED ON A MERE CHANGE OF O PINION AND THIS PRINCIPLE IS AN IN-BUILT TEST TO CHECK THE ABU SE OF THE POWER BY THE AO. IT WAS OBSERVED THAT AFTER 01.04.1989, THE DAY ON WHICH SECTION 147 WAS SUBSTITUTED BY AN AMENDING ACT, THE AO HAS POWER TO REOPEN, PROVIDED THERE IS TANGIBLE MATERIAL TO C OME TO THE CONCLUSION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT. THE REASONS, IT WAS HELD, MUST HAVE A LIVE LINK WIT H THE FORMATION OF THE BELIEF. IN THE PRESENT CASE THIS JUDGMENT APPL IES IN FAVOUR OF THE ASSESSEE BECAUSE THERE IS NO TANGIBLE MATERIAL BEFO RE THE AO TO JUSTIFY THE REOPENING OF THE ASSESSMENT. THE AO HA S REOPENED THE ASSESSMENT ON THE VERY SAME FACTS WHICH WERE PRESEN T BEFORE HIM AT THE TIME OF COMPLETING THE ORIGINAL ASSESSMENT, WHICH AMOUNTS TO A MERE CHANGE OF OPINION. 7. WE MAY NOW REFER TO THE JUDGMENTS OF THE HONBLE BOMBAY HIGH COURT ON THE POINT. IN ASTEROIDS TRADING AND INVESTMENTS P. LTD. VS. DCIT (2009) 308 ITR 190 (BOM), THE HIGH CO URT, REFERRING TO THE JUDGMENT OF THE FULL BENCH OF THE DELHI HIGH COURT IN CIT VS. ITA NO: 6138/MUM/2009 8 KELVINATOR OF INDIA LTD. (2002) 256 ITR 1 (DEL), WH ICH WAS AFFIRMED BY THE SUPREME COURT IN THE JUDGMENT CITED SUPRA, H ELD THAT IN THE ABSENCE OF ANY CHANGE OF LAW OR ANY NEW MATERIAL HA VING BEEN BROUGHT ON RECORD BETWEEN THE DATE OF THE ORIGINAL ASSESSMENT ORDER AND THE DATE OF FORMATION OF THE BELIEF BY TH E AO THAT INCOME HAS ESCAPED ASSESSMENT, NO NOTICE UNDER SECTION 148 CAN BE ISSUED. IT WAS HELD THAT IN SUCH A CASE IT WOULD O NLY BE A FRESH APPLICATION OF MIND BY THE AO TO THE SAME SET OF FA CTS AMOUNTING TO CHANGE OF OPINION. IN THIS CASE DECIDED BY THE HIG H COURT, THE ASSESSEE HAD DISCLOSED ALL MATERIAL FACTS NECESSARY FOR CLAIMING DEDUCTION UNDER SECTION 80M, AS IN THE CASE NOW BEF ORE US. THE ASSESSMENT WAS COMPLETED EXCEPT THE CLAIM FOR THE D EDUCTION. LATER THE AO REOPENED THE ASSESSMENT AND IT WAS HEL D THAT THE REASSESSMENT PROCEEDINGS WERE WITHOUT JURISDICTION SINCE THEY WERE BASED ON A MERE CHANGE OF OPINION WITHOUT ANY CHANG E OF LAW OR ANY NEW MATERIAL COMING INTO THE POSSESSION OF THE AO AFTER THE COMPLETION OF THE ORIGINAL ASSESSMENT. THE JUDGMEN T IN THE CASE OF ASIAN PAINTS LTD. VS. DCIT (2009) 308 ITR 195 (BOM) IS TO THE SAME EFFECT. IN ICICI BANK LTD. VS. K J RAO AND AN OTHER (2004) 268 ITR 203 (BOM) THE ASSESSEE HAD PLACED ALL MATER IAL FACTS BUT ERRONEOUSLY CLAIMED HIGHER DEPRECIATION WHICH WAS A LLOWED IN THE ORIGINAL ASSESSMENT. THE AO REOPENED THE ASSESSMEN T TO WITHDRAW THE EXCESS DEPRECIATION. THE ASSESSEE QUE STIONED THE JURISDICTION OF THE AO TO REOPEN THE ASSESSMENT IN A WRIT PETITION FILED BEFORE THE HIGH COURT. IT WAS HELD THAT WHER E THE ASSESSEE FURNISHED ALL MATERIAL FACTS RELATING TO THE CLAIM OF DEPRECIATION, ITA NO: 6138/MUM/2009 9 EVEN IF HE ERRONEOUSLY CLAIMS HIGHER RATE OF DEPREC IATION, IT WILL NOT BE A CASE OF FAILURE TO DISCLOSE ALL MATERIAL FACTS FULLY AND TRULY. IT WAS POINTED OUT THAT THE RATE OF DEPRECIATION IS A MATTER OF LEGAL INFERENCE TO BE DRAWN FROM THE MATERIAL FACTS AND I F SUCH AN INFERENCE DRAWN BY THE AO WAS ERRONEOUS IT CANNOT B E SAID THAT THE ASSESSEE FAILED TO DISCLOSE MATERIAL FACTS. THESE THREE JUDGMENTS OF THE HONBLE BOMBAY HIGH COURT SQUARELY APPLY TO THE PRESENT CASE IN SUPPORT OF THE ASSESSEES CLAIM THAT THE NO TICE ISSUED UNDER SECTION 148 IS WITHOUT JURISDICTION. 8. FOR THE FOREGOING REASONS WE HOLD THAT THE AO HA D NO JURISDICTION TO ISSUE NOTICE UNDER SECTION 148 OF T HE ACT TO REOPEN THE ASSESSMENT ON THE GROUND THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT BY REASON OF THE ASSESSEES FAIL URE TO FURNISH FULLY AND TRULY ALL MATERIAL FACTS RELATING TO THE CLAIM OF DEDUCTION UNDER SECTIONS 80M AND 80-O. BOTH THE NOTICE AS WE LL AS THE REASSESSMENT ARE THEREFORE WITHOUT JURISDICTION. G ROUND NOS. 1 AND 2 ARE ACCORDINGLY ALLOWED. 9. GROUND NOS. 3 AND 7 ARE GENERAL GROUNDS AND REQU IRE NO DECISION. GROUND NOS. 4 AND 5 IMPINGE ON THE MERIT S OF THE ACTION OF THE AO IN REDUCING THE DEDUCTIONS IN THE REASSES SMENT PROCEEDINGS. SINCE WE HAVE HELD THAT THE REOPENING OF THE ASSESSMENT IS WITHOUT JURISDICTION, WE DO NOT CONSI DER IT PROPER OR NECESSARY TO EXAMINE THE CORRECTNESS OF THESE GROUN DS. GROUND NO.6 IS AGAINST THE CONSEQUENTIAL LEVY OF INTEREST. THIS GROUND IS ALSO ACADEMIC IN VIEW OF OUR DECISION ON THE FIRST TWO GROUNDS. ITA NO: 6138/MUM/2009 10 10. IN THE RESULT, THE REASSESSMENT IS HELD TO BE W ITHOUT JURISDICTION AND THE APPEAL OF THE ASSESSEE IS ALLO WED WITH NO ORDER AS TO COSTS. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JULY 2010. SD/- SD/- (PRAMOD KUMAR) (R V EASWAR) ACCOUNTANT MEMBER PRESIDENT MUMBAI, DATED 23 RD JULY 2010 SALDANHA COPY TO: 1. INDUSTRIAL INVESTMENT TRUST LTD. RAJABAHADUR MANSION, 2 ND FLOOR 2B, BOMBAY SAMACHAR MARG, MUMBAI 400 001 2. DCIT, CIRCLE 2(2) 3. CIT-2 4. CIT(A)-5 5. DR I BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI