ITO 3(2)(2), MUMBAI V. J.M. MORGAN STANDLY P. LTD, MUMBAI

ITA 623/MUM/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71961 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 23-09-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 30-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SRIVASTAVA
• Assessee Lawyers: DR K SHIVARAM; SANJAY PAREKH
• Keywords: Earning of tax free income; Valuation report
• Section: 14A

Judgement Text

1 ITA NO. 623 & 686/MUM/2009 J IN THE INCOME TAX APPELLATE TRIBUNAL J BE NCH, MUMBAI . . , . . . . , BEFORE SHRI P.M. JAGTAP, AM AND DR S.T.M.PAVALAN , JM ITA NO.623/MUM/2009 ( / ASSESSMENT YEAR : 2004-05) INCOME TAX OFFICER 3(2)(2), ROOM NO. 673, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI 400 020. / VS. M/S J.M. MORGAN STANLEY P. LTD., 141 MAKER CHAMBER, NARIMAN POINT, MUMBAI 400 021. ./ PAN : AACM7079C (APP ELLANT ) .. RESPONDENT ) ITA NO.686/MUM/2009 ( / ASSESSMENT YEAR : 2004-05) M/S J.M. MORGAN STANLEY P. LTD., 141 MAKER CHAMBER, NARIMAN POINT, MUMBAI 400 021. / VS. INCOME TAX OFFICER 3(2)(2), ROOM NO. 673, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI 400 020. ./ PAN : AACM7079C (APPELLANT) .. RESPONDENT ) ASSESSEE BY: DR. K. SHIVARAM & SHRI SANJAY PAREKH DEPARTMENT BY : SHRI S.D. SRIVASTAVA ! / DATE OF HEARING : 29-10-2013 ! / DATE OF PRONOUNCEMENT :13-12-2013 2 ITA NO. 623 & 686/MUM/2009 / O R D E R PER P.M. JAGTAP, A.M . : THESE TWO APPEALS, ONE FILED BY THE ASSESSEE BEING ITA NO. 686/MUM/09 AND THE OTHER FILED BY THE REVENUE BEING ITA NO. 62 3/MUM/09 ARE CROSS APPEALS WHICH ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A) III, MUMBAI DATED 7-11-2008. 2. FIRST, WE SHALL TAKE UP THE APPEAL OF THE REVENU E BEING ITA NO. 623/MUM/20909 WHICH INVOLVES A SOLITARY ISSUE AND T HE SAME IS RAISED BY WAY OF THE FOLLOWING GROUND:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN ALLOWING LOSS OF RS. 27,64,45,6 32/- WITHOUT APPRECIATING THE FACT THAT THE SAID TRANSACTIONS WA S NOT GENUINE ANDS INTENDED TO CREATE LOSS TO ADJUST AGAINST TAXABLE I NCOME. 3. THE ASSESSEE IN THE PRESENT CASE IS AN INVESTMEN T BANKING COMPANY WHICH ALSO RENDERS FINANCIAL ADVISORY SERVICES. TH E RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 27-10-2 004 DECLARING TOTAL INCOME OF RS. 10,61,596/-. IN THE SAID RETURN, LONG TERM C APITAL LOSS OF RS. 27.64 CRORES WAS CLAIMED BY THE ASSESSEE ON SALE OF 10,10,000 OP TIONALLY CONVERTIBLE PREFERENCE SHARES (OCPS) OF M/S J.M. FINANCIAL & IN VESTMENT CONSULTANCY SERVICES PVT. LTD. (JMFICS). THE SAID SHARES OF JM FICS HAVING A FACE VALUE OF RS. 10/- EACH WERE PURCHASED BY THE ASSESSEE ON 27- 3-1999 AT A PREMIUM OF RS. 200/- PER SHARE AND THE SAME WERE SOLD IN THE Y EAR UNDER CONSIDERATION ON 14-5-2003 AT RS. 3.30 PER SHARE RESULTING IN A LONG TERM CAPITAL LOSS OF RS. 27.64 CRORES. THIS CLAIM OF THE ASSESSEE FOR LONG TERM CAPITAL LOSS WAS EXAMINED BY THE A.O. DURING THE COURSE OF SUCH EXA MINATION, HE MADE DIRECT ENQUIRIES FROM THE BUYER OF THE SHARES MR. MAHENDRA T. BHAMMER AND HIS FAMILY AND ALSO ASCERTAINED THE DETAILS OF SUBSEQUE NT TRANSACTION OF THESE SHARES. HE ALSO ANALYSED THE BALANCE SHEET POSITION OF JMFICS ON THE RELEVANT DATES. ON THE BASIS OF THESE ENQUIRIES AND EXAMINA TION, THE A.O. RECORDED HIS 3 ITA NO. 623 & 686/MUM/2009 FINDINGS/OBSERVATIONS ON THE ISSUE OF ASSESSEES CL AIM FOR LONG TERM CAPITAL LOSS WHICH, AS SUMMARIZED BY THE LD. CIT(A) IN HIS IMPUG NED ORDER, WERE AS UNDER:- A) SHARES PURCHASED FIVE YEARS AGO AT A PREMIUM OF RS. 200/- HAVE BEEN SOLD @ RS. 2.30 PER SHARE B) THE FINANCIAL POSITION OF JMFICS HAD IMPROVED AS AT 31 ST MARCH, 2004 AS COMPARED TO THAT AS AT 31 ST MARCH, 1999. C) JMFICS WHOSE SHARES WERE PURCHASED AND SOLD WAS A C OMPANY IN WHICH MR. NIMISH KAMPANI HAD SUBSTANTIAL INTEREST. D) MR.MAHENDRA T. BHAMMER WAS A CLOSE FRIEND OF MR. NI MESH KAMPANI, CHAIRMAN OF THE APPELLANT COMPANY. E) MR. MAHENDRA T. BHAMMER STATED THAT HE HAD INVESTED IN THE SHARES OF JMFICS AT THE INSTANCE OF JMMSRSPL, A COMPANY UNDER CONTROL OF NIMESH KAMPANI. F) MR. MAHENDRA T. BHAMMER AND SOLD 50% OF THE SHARES @ RS.3.72/- PER SHARE TO M/S. PERSEPOLIS INVESTMENT COMPANY PVT. LT D. A COMPANY WHOLLY OWNED BY MR. NIMESH KAMPANI AND HIS FAMILY A ND AN ASSOCIATE CONCERN AND THE BALANCE 50% SHARES TO FORTIS FINANC IAL SERVICES LTD. A RANBAXY GROUP COMPANY @ RS.4/- PER SHARE; G) THE SHARE PRICE OF OCPS RANGED FROM RS.3.30 PER SHA RE TO RS.53.00 PER SHARE IN TWO YEARS. ASSESSING OFFICER HAS INVOKED MC DOWELL AND HAS DIS ALLOWED THE LOSS. 4. ON THE BASIS OF THE ABOVE FINDINGS/OBSERVATIONS RECORDED BY HIM AND RELYING ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MACDOWELL & COMPANY VS. COMMERCIAL TAX OFFICE, 154 ITR 148, THE A.O. HELD THAT THE ENTIRE TRANSACTIONS IN SHARES WERE FABRICATED BY THE ASSES SEE AS A PRE-CONCEIVED IDEA FOR CREATION OF ARTIFICIAL LOSS WHICH WAS NOTHING B UT A COLOURABLE DEVICE WITH A SOLE PURPOSE TO AVOID PAYMENT OF TAX BY SETTING OFF THE SAME AGAINST FUTURE INCOME. HE, THEREFORE, DISALLOWED THE CLAIM OF THE ASSESSEE FOR LONG TERM CAPITAL LOSS. 5. THE DISALLOWANCE MADE BY THE A.O. ON ACCOUNT OF LONG TERM CAPITAL LOSS ON JMFICS SHARES WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(A) AND VARIOUS SUBMISSIONS WERE MADE ON BEH ALF OF THE ASSESSEE IN 4 ITA NO. 623 & 686/MUM/2009 SUPPORT OF ITS CASE ON THIS ISSUE WHICH, AS SUMMARI ZED BY THE LD. CIT(A) IN HIS IMPUGNED ORDER, WERE AS UNDER:- (1) APPELLANT IS A COMPANY NOT WHOLLY OWNED BY J.M . GROUP OF KAMPANI FAMILY. IT HAS BEEN ARGUED THAT MORGAN STANLEY GROU P OF USA IS HOLDING 49% SHARES IN APPELLANT COMPANY AND HAS 4 DIRECTORS ON THE BOARD OF APPELLANT. THERE IS NO CAUSE OF AN ULTERIOR MOTIVE IN ROUTING THE SALES TO EITHER PERSEPOLIS INVESTMENT COMPANY PVT. LTD. OR K AMPANI CONSULTANTS LTD. THE COMPANIES UNDER CONTROL OF KAMPANI FAMILY TO WHICH SHARES ARE PASSED ON SUBSEQUENTLY. (2) LEARNED COUNSEL OF APPELLANT HAS FURTHER ARGUED THAT 50% OF THE SHARES SOLD TO MR. BHAMMER BY APPELLANT HAVE BEEN S UBSEQUENTLY SOLD BY HIM TO A OUTSIDE PARTY AND CONTINUE TO BE HELD B Y OUTSIDE PARTY. HE HAS EXPLAINED THAT SUBSEQUENT TRANSACTIONS HAVE OCC URRED IN TWO DIFFERENT DIRECTIONS. THERE ARE AS UNDER: A. MR. BHAMMER AND HIS FAMILY SOLD 50% OF SHARES ON 27 TH AUGUST. 2004@ 3.72 PER SHARE TO PERSEPOLIS INVESTMENT COMPA NY PVT. LTD. A GROUP CONCERN OF KAMPANI FAMILY. THIS COMPANY, IN T URN, SOLD ALL THESE SHARES ON 6 TH DECEMBER, 2004 @ RS.4/- PER SHARE TO NOWROSJEE VAD IA AND SONS LTD. A COMPANY OF WADIA GROUP, A OUTSIDE G ROUP IN RELATION TO NEITHER APPELLANT NOR KAMPANI FAMILY. THESE SHARES HAVE CONTINUED TO BE HELD BY WAIDA GROUP TILL TODAY. B. THE BALANCE 50% SHARES WERE SOLD BY MR. BHAMMER AND FAMILY ON 24 TH AUGUST 2004@ RS.4/- PER SHARE TO FORTIS FINANCIAL SERVICES LTD. THIS COMPANY, IN TURN, SOLD THESE SHARES TO J.M. SE RVICES PVT. LTD. ON 30 TH AUGUST, 2005 @ RS.53/- PER SHARE. THIS COMPANY, IN TURN, SOLD THESE SHARES ON 15 TH SEPTEMBER, 2005 TO KAMPANI CONSULTANTS LTD. @ 53/- PER SHARES. IT HAS BEEN INFORMED THAT KAMPANI CONSULTANTS LTD. IS A PUBLIC LIMITED, COMPANY WHOSE SHARES ARE QUOTED O N THE STOCK EXCHANGE. THE SHARES HAVE CONTINUED TO BE HELD BY T HIS COMPANY. 3. LEARNED COUNSEL OF APPELLANT HAS POINTED OUT MY ATTENTION TO THE FACT THAT DURING THE PERIOD, DECEMBER, 2004 TO SEPT EMBER, 2005, ENTIRE SHARE UNDER CONSIDERATION, WERE HELD BY OUTSIDE PAR TIES, 50% BY WADIA GROUP AND THE REMAINING 50% BY FORTIS FINANCE SERVI CES LTD. IT IS CLAIMED THAT APPELLANT HAD NO CONTROL WHATSOEVER OV ER THESE CORPORATE ENTITIES. 4. ON THE VALUATION OF RS.3.33 PER SHARE AT WHICH A PPELLANT HAD SOLD SHARES TO MR. BHAMMER, IT HAS BEEN POINTED OUT THAN AN INDEPENDENT CA HAD DONE THE VALUATION OF SHARES AT THE INSTANCE OF AUDITORS OF APPELLANT COMPANY WHO HAD DEMANDED THE VALUATION TO MEET THE RECRUITMENTS OF ACCOUNTING STANDARDS. THIS FACT HAS BEEN OBSERVED B Y THE ASSESSING OFFICER IN THE ORDER OF ASSESSMENT WHO HAS NOT CHAL LENGED THE VALUATION. THUGH HE HAS QUESTIONED THE SAME. LEARNED COULSEL O F APPELLANT HAS POINTED OU THE VALUATION AT RS.3.33 PER SHARE AS HI GHER THAT THE 5 ITA NO. 623 & 686/MUM/2009 VALUATION ARRIVED AT IN ACCORDANCE WITH RULE 10 TO SCHEDULE III OF WEALTH TAX ACT AS PER WHICH THE VALUATION COMES TO ONLY RS .1.25/- PER SHARE. HE HAS ALSO ARGUED THAT MR. BHAMMER, HAD PURCHASED SHA RE AT RS.3.33 PER SHARE HAD SOLD THESE SHARES AFTER HOLDING THEM FOR 14 MONTHS TO OUTSIDE PARTIES @ 4/- PER SHARE. IF THE VALUATION WAS NOT P ROPER, MR. BHAMMER WOULD HAVE SOLD THESE SHARES AT A HIGHER PRICE, WHI CH HAS NOT BEEN DONE. THEREFORE, IT IS CONTENDED THAT THE VALUE OF 3.33 A T WHICH THE SHARES WERE SOLD BY APPELLANT, WAS PERFECTLY JUSTIFIED IN THE F ACTS THEN PREVALENT. 5. LEARNED COUNSEL OF APPELLANT HAS DRAWN MY ATTENT ION TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF AZ ADI BACHAO ANDOLAN 263 ITR 706. ACCORDING TO HIM, THE EFFECT TO JUDGME NT IN THE CASE OF MC DOWELL HAS BEEN DILUTED. HE HAS ALSO ARGUED THAT IN THE CASE OF APPELLANT, IT WAS A SIMPLE CASE OF SALE WITHOUT ANY TAX PLANNING OR TAX AVOIDANCE BEHIND THE SCENE. THEREFORE, HE HAS ARGUE D THAT THE DECISION IN THE CASE OF MC DOWELL INVOKED BY ASSESSING OFFIC ER IS NOT APPLICABLE. ACCORDING TO HIM, IT IS A CASE OF GENUINE SALE AND A GENUINE LOSS, WHICH SHOULD BE ALLOWED TO APPELLANT. 6. THE LD. CIT(A) FOUND MERIT IN THE SUBMISSIONS MA DE ON BEHALF OF THE ASSESSEE ON THIS ISSUE AND ALLOWED ITS CLAIM FOR LO NG TERM CAPITAL LOSS FOR THE FOLLOWING REASONS GIVEN IN HIS IMPUGNED ORDER:- I HAVE PERUSED THE FACTS OF THE CASE AND THE ORDER OF ASSESSMENT, AND DETAILED WRITTEN SUBMISSIONS FILED IN THE COURSE OF APPELLANT PROCEEDINGS. AT THE OUTSET, I AM CONSTRAINED TO OBSERVE THAT THI S IS NOT A GROUP ASSESSMENT. THIS IS ALSO NOT A CASE OF CIRCULARITY, WHERE APPELLANT HAS REPURCHASE THE SHARED AFTER SALE. THE SHARES UNDER CONSIDERATION HAVE NEVER COME BACK TO APPELLANT. ASSESSING OFFICER HAS BROUGHT IN THE CONTROLLING FACTOR IN THE FORM OF KAMPANI FAMILY AN D OTHER GROUP CONCERN, CONTROLLED BY KAMPANI FAMILY. I NOTICE THA T EVEN IF THIS FACTOR IS TAKEN INTO ACCOUNT, IT IS NOT A CIRCULARITY AMONGST ONLY GROUP CONCERNS. THE CIRCULARITY, IF AT ALL IT EXISTS IS EXTREMELY W EAK WHERE 3 RD PARTIES, ABSOLUTELY UNCONNECTED WITH APPELLANT GROUP HAVE PU RCHASED SHARES IN BETWEEN, HAVE HELD THEM FOR SUBSTANTIAL TIME AND HA VE THEN SOLD, MAKING PROFIT IN THE PROCESS. I ALSO NOTICE THAT EV EN TODAY, 50% OF SHARES SOLD BY APPELLANT ARE HELD BY AN OUTSIDE CORPORATE ENTITY UNCONNECTED WITH APPELLANT. AN EXTREMELY IMPORTANT FACT IS THAT , FOR ALMOST ONE YEAR AFTER SALE BY APPELLANT, ALL SHARES WERE WITH OUTSI DE PARTIES. ALSO RELEVANT IS THAT THE CIRCULARITY IS EXTREMELY WEAK EXTENDING INTO TIME BY ALMOST TWO YEARS. ANOTHER CRUCIAL FACTOR IS, IF THE TRANSA CTION UNDER CONSIDERATION IS A SHAM, THE ULTIMATE BENEFICIARY, IF AT ALL, IS A PUBLIC LIMITED CONPANY, KAMPANI CONSULTANTS LTD. WHICH CON TINUES TO HOLD 50% OF THE SHARES SOLD BY APPELLANT. THIS IS A PUBL IC LIMITED COMPANY AND, IF THIS IS TAKEN TO BE THE BENEFIT DERIVED FRO M THE TRANSACTION, APPELLANT HAS NOT STAKE IN THIS PUBLIC LIMITED COMP ANY NOR KAMPANI FAMILY REALLY BENEFITED IN THE PROCESS. 6 ITA NO. 623 & 686/MUM/2009 AS FOR AS THE RATE AT WHICH THE SHARES HAVE BEEN SO LD BY APPELLANT IS CONCERNED, THERE IS INDEPENDENT VALUATION BY CA. AS SESSING OFFICER HAS NOT CHALLENGED THIS VALUATION NOR HAS ATTEMPTED TO BRING IN HIS OWN VALUATION. ALSO THE BUYER, A THIRD PARTY HAS SOLD T HESE SHARES AFTER 14 MONTHS WITH A NOMINAL PROFIT, HAVING SOLD THESE SHA RES AT RS.4/- PER SHARE. IN THE ABOVE CIRCUMSTANCES, I AM OF THE VIEW THAT T HIS IS NOT A CASE WHERE PRINCIPLES LAID DOWN IN THE CASE OF MC DOWELL CAN B E INVOKED. THE TIME FRAME IS TOO LONG. INDEPENDENT UNCONNECTED PARTIES HAVE HELD THESE SHARES FOR A SUBSTANTIAL PERIOD TO TIME; THERE IS N OTHING ADVERSE AS FAR AS THE PRICE AT WHICH THE APPELLANT HAS SOLD SHARES IS CONCERNED. I ALSO DO NOT SEE ANY BENEFIT WHATSOEVER OBTAINED BY APPELLAN T IN THE ENTIRE TRANSACTIONS. I ALSO DO NOT FIND ANY BENEFIT ACCRUI NG TO KAMPANI FAMILY. IN THIS SITUATION, I AM OF THE VIEW THAT THE FINDIN G GIVEN BY ASSESSING OFFICER THAT THE TRANSACTION IS SHAM, IS NOT JUSTIF IED AT ALL. CONSEQUENTLY, THE DISALLOWANCE MADE BY ASSESSING OFFICER IN RESPE CT OF LOSS INCURRED BY APPELLANT ON SALE OF SHARES UNDER CONSIDERATION IS ALSO NOT JUSTIFIED. THE GROUND OF APPEAL IS, THEREFORE, ALLOWED. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVEN UE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 7. THE LD. D.R. SUBMITTED THAT THE TRANSACTIONS OF PURCHASE AND SALE OF SHARES OF JMFCI WERE NOTHING BUT A WELL CONCEIVED I DEA BY THE ASSESSEE TO CLAIM LONG TERM CAPITAL LOSS AS RIGHTLY MADE OUT BY THE A.O. ON THE BASIS OF SPECIFIC FINDINGS GIVEN IN THE ASSESSMENT ORDER. H E SUBMITTED THAT THIS ARTIFICIAL LOSS WAS CREATED BY THE ASSESSEE IN ORDE R TO SET OFF OF THE SAME AGAINST THE CAPITAL GAIN EARNED IN A.Y. 2005-06. HE CONTEND ED THAT IT WAS A CASE OF CIRCULAR TRANSACTIONS MADE BETWEEN THE GROUP COMPAN IES TO SHOW ARTIFICIAL LOSS AND THIS WAS DULY ESTABLISHED FROM THE FACT THAT TH E SHARES AGAIN CAME BACK TO THE SAME GROUP. HE CONTENDED THAT ALTHOUGH THE SHA RES DID NOT COME FINALLY TO THE ASSESSEE AS OBSERVED BY THE LD. CIT(A), THE SAM E CAME BACK TO THE SAME GROUP. HE SUBMITTED THAT THE LD. CIT(A), HOWEVER, OVERLOOKED THIS VITAL ASPECT AND MIS-DIRECTED HIMSELF WHILE ALLOWING THE CLAIM O F THE ASSESSEE FOR LONG TERM CAPITAL LOSS. HE SUBMITTED THAT ALTHOUGH THE SHARES CAME BACK TO THE SAME GROUP AFTER SOME TIME GAP AND ONLY TO THE EXTENT OF 50%, IT WAS STILL A CASE OF CIRCULAR TRANSACTIONS FULLY CONTROLLED BY THE SAME GROUP RESULTING INTO CREATION OF LONG TERM CAPITAL LOSS. HE CONTENDED THAT EVEN THE LD. CIT(A) ACCEPTED THE 7 ITA NO. 623 & 686/MUM/2009 CASE MADE OUT BY THE A.O. OF CIRCULAR TRANSACTIONS BUT STILL ALLOWED THE CLAIM OF THE ASSESSEE FOR LONG TERM CAPITAL LOSS HOLDING THA T CIRCULARITY WAS EXTREMELY WEAK. HE CONTENDED THAT THE CLAIM OF THE ASSESSEE FOR LONG TERM CAPITAL LOSS BASED ON CIRCULAR TRANSACTIONS OF SHARES WITHIN THE SAME GROUP THUS WAS RIGHTLY DISALLOWED BY THE A.O. AND THE IMPUGNED ORD ER OF THE LD. CIT(A) ON THIS ISSUE IS LIABLE TO BE SET ASIDE AND THAT OF THE A.O . DESERVES TO BE RESTORED. IN SUPPORT OF THIS CONTENTION, HE RELIED ON THE DECISI ON OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. L.N. DALMIA REPORTED I N (1994) 207 ITR 89(CAL.) AND THAT OF THE KOLKATA BENCH OF ITAT IN THE CASE OF ED WARD KEVENTER (P.) LTD. VS. DCIT REPORTED IN (2004) 89 ITD 347 (KOL.). 8. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, STRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A) ALLOWING THE CLAIM OF T HE ASSESSEE FOR LONG TERM CAPITAL LOSS. IN THIS REGARD, HE RAISED VARIOUS CO NTENTIONS AND ALSO CITED VARIOUS CASE LAWS IN SUPPORT THEREOF. HE ALSO FILE D A NOTE SUMMARIZING HIS PROPOSITIONS AND CASE LAWS RELIED UPON AS UNDER:- 1. SALE TO UNRELATED THIRD PARTY, WHO HAS CONFIRME D ON OATH THAT SHARES WERE PURCHASED AT CONSIDERATION OF RS.33.33 LAKHS. HENCE, TRANSACTION CANNOT BE CONSIDERED TO BE SHAM. 2. TRANSACTION OF PURCHASE AND SALE WAS GENUINE AND ACTED UPON. EVEN HONBLE BOMBAY HIGHCOURT HAS APPROVED SC HEME AFTER VERIFYING VARIOUS DOCUMENTS AND COMPLIANCES, NO QUE STION OF ANY MISDEED. 3. ON SUBSEQUENT SALE BY MR. MAHENDRA BHAMMAR AND F AMLY AND PERSEPOLIS INVESTMENTS, DEPARTMENT HAS ACCEPTED CAPITAL GAINS AND TAXED THE SAME AT VALUES SPECIFIED BY THE M. WHERE SUBSEQUENT SALE ACCEPTED AS GENUINE AND TAXED, PRES ENT TRANSACTION CANNOT BE DOUBTED- VISHAL P. MEHTA V. D CIT [ITA NO.3586/M/2009; A.Y.2007-08, DT. 26/2/2010 ( REFER PAGES 131 FOR DECISION IN THE CASE OF VISHAL P. MEHTA AND PAG ES 204 AND 205 FOR COMPUTATION IN CASE OF PERSEPOLIS INVESTMENT CO . PVT. LTD. AND PAGES 206 TO 209 FOR ASSESSMENT ORDER IN CASE OF PE RSEPOLIS INVESTMENT CO. PVT. LTD.) 4. RESPONDENT WAS A JOINT VENTURE COMPANY WHEREIN M ORGAN STANLEY GROUP OF US HELD 69.44% WHEN SHARE WERE PUR CHASED AND 8 ITA NO. 623 & 686/MUM/2009 49% WHEN SHARES WERE SOLD. THEY WOULD NOT ALLOW JM GROUP TO BENEFIT FROM A TRANSACTION WHICH WAS DETERMINED TO THEIR INTERESTS. 5. THE SALE OF SHARES WAS AT A VALUE HIGHER THAN TH AT VALUED BY A VALUER AND ALSO HIGHER THAN THE VALUE AS PER SCHE DULE III OF THE WEALTH TAX ACT. EVEN AO HAS ACCEPTED THAT THE BUYER MR. MAHENDRA BHAMMAR SOLD THE SHARES AT RS.4/- PER SHAR E AFTER ONE YEAR OF PURCHASE AND PRICE OF SHARES RANGED FROM RS .3.33 TO RS.53/- OVER A PERIOD OF TWO YEAR. 6. FURTHER, AO HAS NOT BROUGHT ON RECORD ANY OTHER VALUATION REPORT WHICH WOULD SHOW THAT VALUATION OR SALE PRIC E WAS NOT CORRECT. 7. THE ENTIRE OCPS WERE HELD BY MR. MAHENDRA BHAMM AR FOR MORE THAN A YEAR AND THEREAFTER FOR ANOTHER 9 MONTH S BY TOTALLY UNKNOWN PARTIES AND EVEN TILL DATE, 50% OF OCPS AR E HELD BY OUTSIDERS. HENCE, WHERE IS THE QUESTION OF CIRCULAR TRANSACTIONS. 8. MR. MAHENDRA BHAMMER HAD ACCEPTED ON OATH THAT H E HAD PURCHASED THE SHARES AND THE PAYMENT FOR THE SAME W AS MADE BY HIM AND HIS FAMILY MEMBERS. STATEMENT ON OATH TO BE ACCEPTED, UNLESS PROVED OTHERWISE- MEHTA PARIKH & CO. (1956) 30 ITR 181(SC). 9. LOSS WAS DISALLOWED MERELY ON THE BASIS OF PRESU MPTION AND SURMISES. NO. ADDITION COULD BE MADE ON THE BASIS O F PRESUMPTION. RELIANCE IN THIS REGARD WAS PLACED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF K.P. VARGHESE V. ITO ( 1991) 131 ITR 597 (SC). 10. WITHOUT PREJUDICE, IT WAS CONTENDED THAT THE CA PITAL GAINS HAD TO BE COMPUTED ON THE FULL VALUE OF CONSIDERAT ION. RELIANCE IN THIS REGARD WAS PLACED ON THE DECISIONS OF THE HON BLE SUPREME COURT IN THE CASE OF CIT V. GEORGE HENDERSON AND CO . LTD. (1967) 66 ITR 622 AND CIT VS. GILLANDERS ARBUTHNOT & CO. ( 1973) 87 ITR 407. 11. RESPONDENT COMPANY HAS NOT CLAIMED ANY SET OFF OF LOSS ARISING FROM THIS TRANSACTION TILL DATE. THE DETAIL S OF CAPITAL GAINS MADE AFTER A.Y. 2004-05 IS AS UNDER (REFER PAGES 14 0 TO 203): 9 ITA NO. 623 & 686/MUM/2009 ASSESSMENT YEAR SHORT TERM CAPITAL GAINS (RS.) LONG TERM CAPITAL GAINS (RS.) REMARKS 2005-06 1,11,044 7,93,051 OFFERED FOR TAX WITHOUT CLAIMING SET OFF 2006-07 0 64,38,475 OFFERED FOR TAX WITHOUT CLAIMING SET OFF 2007-08 10,267 0 OFFERED FOR TAX WITHOUT CLAIMING SET OFF 2008-09 1,89,813 2,479 OFFERED FOR TAX WITHOUT CLAIMING SET OFF 2009-10 93,477 20,45,45,371 SETT-OFF AGAINST BUSINE SS LOSS OF CURRENT YEAR 2010-11 9,39,312 0 OFFERED FOR TAX WITHOUT CLAIMING SET OFF 2011-12 25,93,88,655 (13,55,04,891) STCG OFFERED FO R TAX 2012-13 42,63,079 (52,62,030) STCG OFFERED FOR TAX FURTHER, LOSS HAS LAPSED AND NO BENEFIT HAS BEEN RE CEIVED BY RESPONDENT TILL DATE. HENCE, THERE IS NO QUESTION O F ANY ULTERIOR MOTIVE IN SELLING THE SHARES AT A LOSS. 12. WITHOUT PREJUDICE TO THE ABOVE, TAX PLANNING WI THIN THE FOUR CORNERS OF LAW IS PERMITTED- UNION OF INDIA V. AZAD I BACHAO ANDOLAN AND ANOTHER (2003) 263 ITR 706 (SC) AT PAGE 760 AND VOD AFONE INTERNATIONAL HOLDINGS B.V. V. UOI (2012) 341 ITR 1 AT PAGE 99 9. IN THE REJOINDER, THE LD. D.R. SUBMITTED THAT TH ERE WAS NO BASIS TO SUPPORT THE VALUATION OF SHARES PURCHASED BY THE AS SESSEE AT A PREMIUM OF RS. 200/- PER SHARE AND IT WAS ONLY THE NEGOTIATED PRIC E. HE SUBMITTED THAT THE FACTS OF EACH CASE HAVE TO BE APPRECIATED TO ASCERT AIN THE EXACT INTENTION AND EVIDENCE AVAILABLE ON RECORD IS REQUIRED TO BE WEIG HED AND NOT COUNTED. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE CLAIM OF THE ASSESSEE FOR LONG TERM CAPITAL LOSS ARISING FROM SALE OF SHARES OF WAS DISALLOWED BY THE A.O. BY TREATING THE RELEVANT TRANSACTIONS OF PURCHASE A ND SALE OF SHARES AS A COLOURABLE DEVICE ADOPTED BY THE ASSESSEE WITH AN U LTRA MOTIVE TO CLAIM THE LONG TERM CAPITAL LOSS. HIS ALLEGATION OF THE COLO URABLE DEVICE HAVING BEEN USED BY THE ASSESSEE WAS MAINLY BASED ON CIRCULAR TRANSA CTIONS ALLEGEDLY MADE 10 ITA NO. 623 & 686/MUM/2009 BETWEEN DIFFERENT COMPANIES BELONGING TO THE SAME G ROUP WHEREBY THE SHARES SOLD HAD AGAIN COME BACK TO THE SAME GROUP. IN THIS REGARD, THE LD. D.R. HAS CONTENDED THAT THE CASE MADE OUT BY THE A.O. OF CIR CULAR TRANSACTION WAS ACCEPTED EVEN BY THE LD. CIT(A) BUT STILL HE ALLOWE D THE CLAIM OF THE ASSESSEE FOR LONG TERM CAPITAL LOSS HOLDING THAT THE CIRCULARITY WAS EXTREMELY WEAK. IT IS, HOWEVER, OBSERVED THAT A VERY SPECIFIC AND CATEGORI CAL FINDING WAS GIVEN BY THE LD. CIT(A) IN HIS IMPUGNED ORDER THAT IT WAS NOT A CASE OF CIRCULARITY WHERE THE ASSESSEE HAD RE-PURCHASED THE SHARES AFTER SALE. HE OBSERVED THAT THE SHARES UNDER CONSIDERATION, ON THE OTHER HAND, HAD NEVER C OME BACK TO THE ASSESSEE. HAVING HELD SO, THE LD. CIT(A) CONSIDERED THE CASE MADE OUT BY THE A.O. ON THE BASIS OF CONTROLLING FACTOR AND OBSERVED IN THIS CO NTEXT THAT EVEN IF THIS FACTOR HAD BEEN TAKEN INTO CONSIDERATION, IT WAS NOT A CIR CULARITY AMONGST ONLY GROUP COMPANIES AND IF AT ALL SUCH CIRCULARITY WAS IN EXI STENCE, THE SAME WAS EXTREMELY WEAK. IT, THEREFORE, CANNOT BE SAID THAT THE CASE OF CIRCULARITY MADE OUT BY THE A.O. WAS ACCEPTED BY THE LD. CIT(A) AS S OUGHT TO BE CONTENDED BY THE LD. D.R. ON THE OTHER HAND, IT WAS SPECIFICALLY RE JECTED BY THE LD. CIT(A) OBSERVING THAT THE SHARES IN BETWEEN WERE PURCHASED BY THE THIRD PARTIES ABSOLUTELY UN-CONNECTED WITH THE ASSESSEE GROUP. HE ALSO NOTED THAT THE SHARES PURCHASED BY THE SAID THIRD PARTIES WERE HEL D BY THEM FOR A SUBSTANTIAL TIME BEFORE SELLING THE SAME AT PROFIT. IT WAS ALSO NOTED BY THE LD. CIT(A) THAT 50% OF THE SHARES SOLD BY THE ASSESSEE WERE HELD BY OUTSIDE CORPORATE ENTITY TOTALLY UN-CONNECTED WITH THE ASSESSEE EVEN AT THE TIME HE PASSED HIS IMPUGNED ORDER. HE OBSERVED THAT THE SAID ENTITY WA S A PUBLIC LIMITED COMPANY AND THE ASSESSEE HAVING NO STAKE IN THE SAID COMPAN Y, IT CANNOT BE SAID THAT ANY BENEFIT WAS DERIVED BY THE ASSESSEE FROM THE TR ANSACTIONS OF PURCHASE AND SALE OF SHARES. AS REGARDS THE RATE AT WHICH THE SH ARES HAD BEEN SOLD BY THE ASSESSEE, THE LD. CIT(A) FOUND THAT THE VALUATION O F SHARES WAS DONE BY AN INDEPENDENT CHARTERED ACCOUNTANT AND THE SAME WAS N OT CHALLENGED BY THE A.O. BY BRINGING IN HIS OWN VALUATION. HE HELD THA T THE PRINCIPLE LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF MACDOWELL (SUPRA) THUS WAS NOT 11 ITA NO. 623 & 686/MUM/2009 APPLICABLE IN THE CASE OF THE ASSESSEE AS THERE WAS NO BENEFIT DERIVED EITHER BY THE ASSESSEE OR EVEN BY THE GROUP. IN SUPPORT OF T HE REVENUES CASE ON THE ISSUE UNDER CONSIDERATION, THE LD. D.R. HAS RELIED ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF L.N. DALMIA (SUP RA) AND OF KOLKATA BENCH OF ITAT IN THE CASE OF EDWARD KEVENTER (P.) LTD. (SUPR A). ON PERUSAL OF THE ORDERS PASSED IN THESE TWO CASES, WE FIND THAT THE FACTS I NVOLVED WERE ENTIRELY DIFFERENT THAN THE FACTS INVOLVED IN THE PRESENT CASE. IN TH E CASE OF L.N. DALMIA, TWO COMPANIES WERE FORMED BY THE ASSESSEE, ONE WAS LNE WHERE HE AND HIS NEPHEW WERE SHAREHOLDERS AND DIRECTORS. THE OTHER COMPANY WAS K WHERE SHAREHOLDERS AND DIRECTORS WERE ASSESSEE AND HIS WI FE. THE ASSESSEE, HIS WIFE AND HIS NEPHEW WERE ALSO DIRECTORS OF PPM. BY THE TRANSFER OF SHARES OF PPM BY THE ASSESSEE TO LNE AND K, THE TRANSFEROR DID NO T LOOSE HIS CONTROL EITHER OVER THE TRANSFERRED SHARES OR THE CONCERNED COMPAN Y NAMELY PPM. THE TRANSFERS HAD TAKEN PLACE WITHOUT ANY READY CASH AN D THE ENTIRE SALE WAS MADE ON CREDIT. THERE WAS NO POSITIVE PROOF THAT THE PUR CHASING COMPANY HAD SUFFICIENT FUNDS TO ACQUIRE THE SHARES FOR THE AGRE ED CONSIDERATION. THE ASSESSEE, ON THE OTHER HAND, HAD INCURRED HUGE INTE REST ON BORROWED FUNDS ALLEGEDLY UTILIZED FOR THE ACQUISITION OF SHARES AN D IN THE RELEVANT YEAR SUCH INTEREST AMOUNTED TO RS. 1,46,501/-. KEEPING IN VIE W ALL THESE VITAL ASPECTS, WHICH WERE CONSIDERED TO BE NOT DISCLOSONG ANY NORM AL BUSINESS LIKE BEHAVIOR, THE TRANSACTION OF SALE OF SHARES WAS HELD TO BE NO T GENUINE BY THE HONBLE CALCUTTA HIGH COURT AND THE CLAIM OF THE ASSESSEE F OR RESULTANT LOSS WAS HELD TO BE NOT ALLOWABLE. IN THE PRESENT CASE, THE FACTS INVOLVED, AS ALREADY DISCUSSED, ARE MATERIALLY DIFFERENT INASMUCH AS THE SHARES IN QUESTION WERE NOT ONLY TRANSFERRED TO THIRD PARTIES TOTALLY UNCONNECT ED WITH THE ASSESSEE BUT THE SAME WERE ALSO HELD BY THE SAID PARTY FOR A CONSIDE RABLE TIME. SIMILARLY, IN THE CASE OF EDWARD KEVENTER (P.) LTD. (SUPRA), THE FACT S INVOLVED WERE DIFFERENT THAN THE FACTS OF THE PRESENT CASE INASMUCH AS THE FIVE COMPANIES INVOLVED IN THE SHARE TRANSACTIONS BELONGED TO THE SAME GROUP WITH THE ASSESSEE HAVING INFLUENCE OVER THEM AND TRANSACTIONS OF SALE OF SHA RES AND THEREAFTER ACQUIRING 12 ITA NO. 623 & 686/MUM/2009 THE SAME BACK WERE FOUND TO BE MADE WITHIN THE SAME GROUP. IT WAS ALSO APPARENT THAT THE FIVE COMPANIES HAD ACTED ONLY AT THE DICTATION OF THE ASSESSEE COMPANY IN PURCHASING THE SHARES AS AND WH EN THE ASSESSEE COMPANY HAD INTENDED TO SELL AND THEN THE SELLING O F SHARES BACK TO THE ASSESSEE COMPANY WHEN THE ASSESSEE WANTED SO WITHOU T SHOWING OR EXPLAINING ANY COMMERCIAL CONSIDERATION IN SUPPORT THEREOF. KE EPING IN VIEW ALL THESE FACTS OF THE CASE, IT WAS HELD BY THE TRIBUNAL THAT THE COMPOSITE TRANSACTIONS OF FIRST PURCHASING THE SHARES AND THEN RE-SELLING THE SAME AT THE SAME RATE WERE FIT TO BE DISREGARDED AS THERE WAS NO COMMERCIAL PU RPOSE AND THE SAME WERE ARTIFICIALLY INSERTED TO ENABLE THE ASSESSEE COMPAN Y BELONGING TO THE SAME GROUP TO BOOK LOSS FOR ACQUIRING THE BENEFIT FOR TH E TAX PURPOSE. THE CASES RELIED UPON BY THE LD. D.R. THUS ARE DISTINGUISHABL E ON FACTS AND THE SAME CANNOT BE OF ANY HELP TO THE REVENUE IN THE PRESENT CASE. 11. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSE E AND REMAINED UNDISPUTED BY THE LD. D.R., CAPITAL GAINS ARISING F ROM SUBSEQUENT SALE OF SHARES BY MR. MAHENDRA T. BHAMMER AND FAMILY WAS DE CLARED BY THEM IN THEIR RETURNS AND THE SAME WAS EVEN ACCEPTED BY THE DEPAR TMENT. IN THE CASE OF VISHAL P. MEHTA (SUPRA) CITED BY THE LD. COUNSEL FO R THE ASSESSEE, IT WAS HELD BY THE TRIBUNAL THAT WHERE SUBSEQUENT SALE IS ACCEPTED BY THE DEPARTMENT AS GENUINE, THERE IS NO REASON OR JUSTIFICATION TO DOU BT THE EARLIER TRANSACTION. IT IS ALSO OBSERVED THAT MR. MAHENDRA T. BHAMMER CONFI RMED ON OATH OF HAVING PURCHASED THE SHARES FROM THE ASSESSEE COMPANY AND HAVING MADE THE PAYMENT AGAINST SUCH PURCHASE. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO FURNISHED THE RELEVANT DETAILS TO SHOW THAT THE LON G TERM CAPITAL LOSS CLAIMED IN THE YEAR UNDER CONSIDERATION HAS NOT BEEN SETT OFF BY THE ASSESSEE AGAINST ANY LONG TERM CAPITAL GAIN TILL 2012-13 AND THE SAME HA S FINALLY LAPSED, WHICH AGAIN GOES TO SHOW THAT THERE WAS NO ULTERIOR MOTIV E IN SELLING THE SHARES AT LOSS AS ALLEGED BY THE A.O. AS SUCH, CONSIDERING A LL THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THERE IS NO INFIRMITY IN THE IMPUG NED ORDER OF THE LD. CIT(A) ALLOWING THE CLAIM OF THE ASSESSEE FOR LOSE OF RS. 27.67 CRORES IN THE YEAR UNDER 13 ITA NO. 623 & 686/MUM/2009 CONSIDERATION I.E 2004-05. WE, THEREFORE, UPHOLD T HE IMPUGNED ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DISMISS THE APPEAL FILED B Y THE REVENUE. 12. IN GROUND NO. 1 OF ITS APPEAL, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE AUTHORITIES BELOW IN ASSESSING THE INTEREST OF RS. 63,44,494/- RECEIVED BY IT ON INCOME TAX REFUND UNDER THE HEAD INCOME FROM OT HER SOURCES AS AGAINST INCOME FROM BUSINESS OR PROFESSION. 13. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PER USING THE RELEVANT MATERIAL AVAILABLE ON RECORD, IT IS OBSERVED THAT T HIS ISSUE IS SQUARELY COVERED BY THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF SMT. B. SESHAMMA VS. CIT (1979) 119 ITR 314 CITED BY THE LD. D.R. W HEREIN IT WAS HELD THAT INTEREST PAID BY THE GOVERNMENT ON EXCESS PAYMENT O F TAX IS ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES. THERE BEING NO OTHER DECISION OF ANY HIGH COURT CITED BY THE LD. COUNSEL FOR THE ASSESSE E WHICH SUPPORTS THE ASSESSEES CASE ON THIS ISSUE, WE RESPECTFULLY FOLL OW THE DECISION OF HONBLE MADRAS HIGH COURT AND UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A) CONFIRMING THE ACTION OF THE A.O. IN BRINGING TO TAX THE INTER EST ON INCOME TAX REFUND UNDER THE HEAD INCOME FROM OTHER SOURCES. GROUND NO. 1 OF THE ASSESSEES APPEAL IS ACCORDINGLY DISMISSED. 14. THE ISSUE INVOLVED IN GROUND NO. 2 OF ASSESSEE S APPEAL RELATES TO THE DISALLOWANCE OF RS. 6,65,852/- MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) U/S 14-A READ WITH RULE 8-D OF THE INCOME TA X RULES, 1962 ACT. 15. IN ITS RETURN OF INCOME FOR THE YEAR UNDER CONS IDERATION, DIVIDEND INCOME OF RS. 10,76,167/- WAS CLAIMED TO BE EXEMPT BY THE ASSESSEE U/S 10(34) OF THE ACT. NO DISALLOWANCE ON ACCOUNT OF EXPENSES INCURR ED IN RELATION TO THE SAID EXEMPT INCOME, HOWEVER, WAS MADE BY THE ASSESSEE IN THE COMPUTATION OF INCOME AS REQUIRED BY SECTION 14-A OF THE ACT. THE A.O., THEREFORE, ESTIMATED SUCH EXPENSES AT RS. 1 LACS BEING REASONABLE AND MA DE A DISALLOWANCE TO THAT 14 ITA NO. 623 & 686/MUM/2009 EXTENT. ON APPEAL, THE LD. CIT(A) APPLIED RULE 8-D OF INCOME TAX RULES, 1962 AND ENHANCED THE DISALLOWANCE MADE BY THE A.O. U/S 14A TO RS. 6,65,852/-. 16. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS HELD BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ AND BOYCE MFG. CO. LTD. VS. DCIT (2010) 328 ITR 81 (BOM), RULE 8-D IS APPLICABLE ONLY PROSPECTIVELY FR OM A.Y. 2008-09. AS FURTHER HELD BY THE HONBLE BOMBAY HIGH COURT IN THE CASE O F GODREJ AND BOYCE MFG. CO. LTD. (SUPRA), THE DISALLOWANCE U/S 14A OF THE A CT FOR THE YEARS PRIOR TO A.Y. 2008-09 IS REQUIRED TO BE MADE ON SOME REASONABLE B ASIS. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE HONBLE BOMBAY H IGH COURT IN THE CASE OF GODREJ AND BOYCE MFG. CO. LTD. (SUPRA), WE SET ASID E THE IMPUGNED ORDER OF THE LD. CIT(A) ENHANCING THE DISALLOWANCE MADE BY THE A .O. U/S 14A OF THE ACT AND RESTORE THAT OF THE A.O. MAKING SUCH DISALLOWANCE T O THE EXTENT OF RS. 1 LAC BEING REASONABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS GROUND OF THE ASSESSEES APPEAL IS ACCORDINGLY PARTLY ALLOWED. 17. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED WHILE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.12.2013 . ! * + 13.12.2013 ! SD/- SD/- (S.T.M.PAVALAN) ( P.M. JAGTAP ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; + DATED . . ./RK , PS 31.10.2013 15 ITA NO. 623 & 686/MUM/2009 ! '$% &% / COPY OF THE ORDER FORWARDED TO : 1. / / THE APPELLANT 2. 01/ / THE RESPONDENT. 3. 2 ( ) / THE CIT(A)- MUMBAI CONCERNED 4. 2 / CIT MUMBAI CONCERNED 5. 3 05 , 5 , / DR, ITAT, MUMBAI D BENCH 6. 7 / GUARD FILE. / BY ORDER, 13 0 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI