KAILASA ENTERTAINMENT P. LTD, MUMBAI V. DCIT 8(1)(OSD), MUMBAI

ITA 626/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3432 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 17-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 31-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M MURLIDR
• Keywords: Business expenditure; Fair market value; Capital expenditure
• Section: 40A(3); 142(1); 37; 28

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.626/MUM/2012 ASSESSMENT YEAR-2008-09 KAILASA ENTERTAINMENT (PVT.) LTD., D/204, MANDAR APARTMENTS, OFF J.P. ROAD, SEVEN BUNGLOWS, ANDHERI(W), MUMBAI-400061 / VS. DCIT(OSD) - 8(1) MUMBAI-400020 PAN NO. AACCK7124 J ( / APPELLANT) ( / RESPONDENT) ! / ASSESSEE BY SHRI NISHIT GANDHI ' / REVENUE BY SHRI M.MURLI-DR # '$ % !& / DATE OF HEARING : 17/03/2016 % !& / DATE OF ORDER: 18/03/2016 ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 04/11/2011 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE FIRST GROUND RAISED IN THIS APPEAL IS G ENERAL IN NATURE, REQUIRES NO DELIBERATION FROM OUR SIDE. THE NEXT GROUND I.E. GROUND NO.2, PERTAINS TO DISALLOWING RS.11,95,250/-, CLAIMED AS ADVERTISEMENT EXPENSES H OLDING THAT THE SAME SHOULD HAVE BEEN CLAIMED AS EXPENSES BY MR. KAILASH KHER, DIRECTOR OF THE ASSESSEE COMPANY, AND NOT THE ASSESSEE. 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E, SHRI NISHIT GANDHI, CONTENDED THAT THE ADVERTISEMEN T EXPENSES, CLAIMED BY THE ASSESSEE, WERE IN RESPECT OF BANNERS DISPLAYED AT THE TIME OF SHOWS OF THE ASSES SEE COMPANY, THUS, ARE ALLOWABLE EXPENSES. IT WAS CONTE NDED THAT THERE IS NO DISPUTE TO THE FACT THAT THE EVENT WAS ORGANIZED AND THE EXPENSES WERE INCURRED. IT WAS A LSO PLEADED BY THE LD. COUNSEL THAT THERE IS NO BAR IN SECTION 37 OF THE ACT IF ANY INDIRECT BENEFIT IS CAUSED TO THI RD PARTY. ON THE OTHER HAND, THE LD. DR, SHRI M. MURLI, STRONGLY DEFENDED THE DISALLOWANCE BY CONTENDING THAT FIRSTL Y, PHOTOS OF BANNERS/HOARDINGS WERE EVER PRODUCED BEFO RE THE ASSESSING OFFICER/COMMISSIONER OF INCOME TAX (APPEA LS) AND EVEN BEFORE THIS TRIBUNAL AND THE INCOME HAS BE EN ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 3 OFFERED IN THE INDIVIDUAL CASE OF SHRI KAILASH KHER , SO THE EXPENSES, IF ANY, ALSO HAS TO BE CLAIMED IN HIS IND IVIDUAL CASE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE COMPANY DECLARED INCOME OF RS.1,06,56,253/- IN ITS RETURN FILED ON 25/09/2008. THE RETURN WAS SELECTED FOR SCRUTINY, THEREFORE, NOTICE U/S 143(2) WAS ISSUED TO THE ASSESSEE. ANOTHER NOTICE DATED 28/01/2010 AND NOTICE U/S 142(1) DATED 16/07/2010 W AS SERVED UPON THE ASSESSEE ASKING FOR VARIOUS DETAILS . THE LD. ASSESSING OFFICER DISALLOWED A SUM OF RS.11,95, 250/- WITH RESPECT TO ADVERTISEMENT OF CD OF JHOOMO RE ON THE PLEA THAT THE RECEIPTS OF THE CD WAS OFFERED FOR TA XATION IN THE INDIVIDUAL HANDS OF SHRI KAILASH KHER (PROMOTER DIRECTOR OF THE ASSESSEE COMPANY), THEREFORE, THE EXPENDITURE, IF ANY, INCURRED ON THE ADVERTISEMENT OF THE CD SHOULD ALSO BE CLAIMED IN THE INDIVIDUAL CASE OF SHRI KAILASH KHER. THE STAND OF THE ASSESSEE IS THAT THE BANNERS OF JHOOMO RE WERE NOT TO ADVERTISE THE CD BUT TO ADVERTISE SHRI KAILASH KHER, WHO WAS GOING TO PERFORM THE SHO W OF THE ASSESSEE COMPANY. 2.2. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE WRITTEN SUBMISSIONS OF TH E ASSESSEE WERE CONSIDERED AND ALSO ANALYZED THE PROV ISIONS OF SECTION 37 OF THE ACT AND FINALLY, THE STAND TAK EN IN THE ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 4 ASSESSMENT ORDER WAS AFFIRMED. THE ASSESSEE IS IN A PPEAL BEFORE THIS TRIBUNAL. 2.3. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, IT IS NOTEWORTHY THAT R IGHT FROM ASSESSMENT STAGE AND TILL THE STAGE OF THE TRIBUNAL , THE ASSESSEE HAS NOT PRODUCED THE PHOTOS OF THE CLAIMED BANNERS. IT IS ALSO NOTED THAT THE EXPENDITURE WAS INCURRED ON THE ADVERTISEMENT OF JHOOMO RE AND THE INCOME OF THE SHOW WAS ALSO CLAIMED AS INCOME OF SHRI KAILASH KHE R IN HIS INDIVIDUAL CAPACITY, THEREFORE, FROM THIS ANGLE , THE EXPENDITURE, IF ANY, ALSO SHOULD HAVE BEEN CLAIMED IN THE INDIVIDUAL CASE OF SHRI KAILASH KHER AND NOT THE AS SESSEE COMPANY. SHRI KAILASH KHER, IN FACT, USED THE PLATF ORM OF THE ASSESSEE COMPANY TO ADVERTISE HIS PERSONAL BUSI NESS FROM WHICH MR. KAILASH KHER GOT THE INCOME OF THE S HOW, THEREFORE, THE EXPENDITURE ALSO HAS TO BE CLAIMED I N HIS INDIVIDUAL RETURN AND NOT FROM THE ASSESSEE COMPANY . EVEN, IN STATEMENT OF FACTS, FILED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE FACTS HAS BEEN TWISTED AND NO SUCH CLAIM HAS BEEN MADE BY THE ASSE SSEE AS HAS BEEN CLAIMED BEFORE THIS TRIBUNAL, BUT GROUN D HAS BEEN RAISED. WHAT WAS MENTIONED IN THE CLAIMED BANNERS/HOARDINGS WAS ALSO NEVER PRODUCED AT ANY ST AGE, ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 5 THEREFORE, WE FIND NO INFIRMITY IN THE CONCLUSION O F THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 2.4. SO FAR AS, THE ARGUMENT OF THE ASSESSEE IS THAT THERE IS NO BAR IN SECTION 37 OF THE ACT IF ANY IND IRECT EXPENSES IS CAUSED TO THIRD PARTY, IS CONCERNED, IN DIRECTLY THE ASSESSEE HAS ADMITTED THAT BY THE SHOW STAGED B Y THE COMPANY, A THIRD PARTY (HERE SHRI KAILASH KHER IN H IS INDIVIDUAL CAPACITY) GOT THE BENEFIT. WE ARE REPROD UCING HEREUNDER THE RELEVANT PROVISION OF SECTION 37OF TH E ACT FOR READY REFERENCE AND ANALYSIS:- 37. (1) ANY EXPENDITURE (NOT BEING EXPENDITURE OF THE NATURE DESCRIBED IN SECTIONS 30 TO 36 AND NOT BEING IN THE NATURE OF CAPITAL EXPENDITURE OR PERSONAL EXPENSES OF THE ASSESSEE), LAID OUT OR EXP ENDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF THE BUSINESS OR PRO FESSION SHALL BE ALLOWED IN COMPUTING THE INCOME CHARGEABLE UNDER THE HEAD ' PROFITS AND GAINS OF BUSINESS OR PROFESSION'. 68 [ EXPLANATION 1. ]FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT ANY EXPENDITURE INCURRED BY AN ASSESSEE FOR ANY PUR POSE WHICH IS AN OFFENCE OR WHICH IS PROHIBITED BY LAW SHALL NOT BE DEEMED TO HAVE BEEN INCURRED FOR THE PURPOSE OF BUSINESS OR PROFESSION AND NO DEDUCTION OR ALLOWANCE SHALL BE MADE IN RESPECT OF SUCH EXPENDIT URE. 69 [EXPLANATION 2. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED TH AT FOR THE PURPOSES OF SUB-SECTION (1), ANY EXPENDITUR E INCURRED BY AN ASSESSEE ON THE ACTIVITIES RELATING TO CORPORATE SO CIAL RESPONSIBILITY REFERRED TO IN SECTION 135 OF THE COMPANIES ACT, 20 13 (18 OF 2013) SHALL NOT BE DEEMED TO BE AN EXPENDITURE INCURRED BY THE ASSESSEE FOR THE PURPOSES OF THE BUSINESS OR PROFESSION .] (2) [* * *] (2B) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECT ION (1), NO ALLOWANCE SHALL BE MADE IN RESPECT OF EXPENDITURE INCURRED BY AN ASSESSEE ON ADVERTISEMENT IN ANY SOUVENIR, BROCHURE, TRACT, PAM PHLET OR THE LIKE PUBLISHED BY A POLITICAL PARTY. IF THE AFORESAID PROVISION OF THE ACT IS ANALYZED, IT CLEARLY PROVIDES THAT ANY EXPENDITURE, LAID OUT OR EXPANDED WHOLLY ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 6 AND EXCLUSIVELY FOR THE PURPOSES OF BUSINESS OR PRO FESSION SHALL BE ALLOWED IN COMPUTING THE INCOME CHARGEABLE UNDER THE HEAD PROFIT & GAINS OF BUSINESS OR PROFESSION OF THE ASSESSEE, MEANING THEREBY, THE EXPENDITURE HAS TO B E INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF BUSINESS OF THE ASSESSEE. EVEN OTHERWISE, SHRI KAI LASH KHER IS THE DIRECTOR OF THE ASSESSEE COMPANY AND S INCE THE INCOME OF THE SHOW WAS ALSO DEPOSITED IN THE INDIVI DUAL ACCOUNT OF SHRI KAILASH KHER, THIS IS A DEVICE TO R EDUCE THE INCOME OF THE ASSESSEE COMPANY BY CLAIMING THE EXPENDITURE. THE HONBLE DELHI HIGH COURT IN MIRA KULKARNI VS ACIT (2012) 343 ITR 358 (DEL.), WHEREIN , 75% OF THE PROPERTY WAS IN PERSONAL USE OF THE ASSESSEE AND AS SUCH THE EXPENDITURE INCURRED ON MAINTENANCE AND RE PAIR ON THE PERSONAL PROPERTY WAS HELD TO BE NOT ALLOWAB LE AS BUSINESS EXPENDITURE UNDER THE PROVISION U/S 37 OF THE ACT. IDENTICAL RATIO WAS LAID DOWN IN CIT VS R.K.K. R. STEELS P. LTD. (2002) 258 ITR 306, 307-308 (MAD.), WHEREI N, THE EXPENDITURE INCURRED ON THE EDUCATION OF SON OF THE DIRECTOR WAS HELD TO BE PERSONAL IN NATURE, THUS, NOT ALLOWA BLE AS BUSINESS EXPENDITURE. IDENTICAL RATIO WAS LAID DOWN IN M. SUBRAMANIAN BROTHERS VS CIT (2001) 250 ITR 769,771 (MAD.), 209 ITR 383 (BOM.) AND CIT VS GHATKOPAR EST ATE AND FINANCE CORPORATION (PVT.) LTD. 170 ITR 222, 22 7 (BOM.), GOPALDAS DAHAYABHAI LAVSI VS CIT 108 ITR 53 1,534 (GUJ.). THE RATIO LAID DOWN IN B.K. KHANNA & COMPAN Y (P. ) LTD. (2001) 247 ITR 705, 710 (DEL.), CIT VS JIVANDA S LALJEE ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 7 & SONS 245 ITR 719, 721 (MAD.), SASWAD MALI SUGAR FACTORY LTD. VS CIT 236 ITR 706 (BOM.) SUPPORTS THE CASE OF THE REVENUE, THUS, THIS GROUND OF THE ASSESSEE IS H AVING NO MERIT AS SHRI KAILASH KHER USED THE PLATFORM OF THE COMPANY TO ADVERTISE HIS PERSONAL BUSINESS OR IT CA N BE SAID THAT THE ADVERTISEMENT EXPENSES WERE INCURRED BY THE ASSESSEE FOR THE PROMOTION OF JHOOMO RE CD AND TH E RESULTANT BENEFITS/COLLECTIONS WERE DEPOSITED IN TH E PERSONAL ACCOUNTS OF SHRI KAILSAH KHER, THEREFORE, THE EXPENDITURE CANNOT BE ALLOWED AS A DEDUCTION IN THE CASE OF THE ASSESSEE COMPANY. EVEN OTHERWISE, WHAT WAS MENTIONED IN THE SO CALLED BANNERS, THE ASSESSEE AT ANY STAGE, NEVER PRODUCED THE LANGUAGE/ADVERTISED MATER IAL, THEREFORE, MERE CLAIM IS NOT ENOUGH AND IT HAS TO B E SUBSTANTIATED WITH EVIDENCE, THEREFORE, THIS GROUN D OF THE ASSESSEE IS DISMISSED. 3. GROUNDS NO.3 AND 4 PERTAINS TO DISALLOWANCE OF CONSULTANCY EXPENSES OF RS.5,69,989/- TO MUNRO ACOU STICS LTD. AND COMMISSION OF RS.2,24,720/- PAID TO PRAXIS TREATING THE SAME AS CAPITAL EXPENDITURE BY THE REV ENUE. 3.1. THE CRUX OF ARGUMENT ON BEHALF OF THE ASSESSE E IS THAT THESE EXPENSES WERE INCURRED BY THE ASSESSEE B Y INVITING OUR ATTENTION TO PARA 5.1(PAGE-3) OF THE I MPUGNED ORDER, BY CLAIMING THAT THE EXPENSES ARE REVENUE IN NATURE. ON THE OTHER HAND, THE LD. DR, DEFENDED THE CONCLUS ION ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 8 ARRIVED AT IN THE IMPUGNED ORDER BY ASSERTING THAT THE CLAIMED EXPENDITURE ARE OF CAPITAL IN NATURE. 3.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE CLAIMED EXPENDITURE OF RS.7,3 1,000/- OUT OF WHICH RS.5,69,989/- (7000 STERLING) WERE PAI D TO MUNRO ACOUSTIC LTD. FOR DESIGN OF RECORDING STUDI O REHEARSAL ROOM. THESE EXPENSES WERE SHOWN AS WORK I N PROGRESS AS THE STUDIO OF STILL UNDER CONSTRUCTION. THE LD. ASSESSING OFFICER ASKED THE ASSESSEE AS TO WHY THES E EXPENSES SHOULD NOT BE CAPITALIZED. THE ASSESSEE VI DE LETTER DATED 26/11/2010, CLAIMED AS UNDER:- NOTE ON CONSULTANCY THE ABOVE AMOUNT HAS BEEN PAID TO MUNRO ACOUSTICS LTD. FOR DESIGN OF STUDIO AND BLUE PRINTS OF STUDIO WHICH HAVE BEEN FILED VIDE LETTER DATED 22/11/2010 IN ANNEXURE 1. YOUR HONOR HAS PROPOSED WHY IT SHOUL D NOT BE TREATED AS CAPITAL EXPENDITURE. IN THIS CONNECTION, COMPANY WISHES TO SUBMIT THAT CONSULTANCY EXPENSES HAVE BEEN INCURRED DESIGNING O F THE STUDIO. SINCE CONSULTANCY EXPENSES ARE REVENUE IN NATURE THE SAME HAS BEEN CLAIMED AS REVENUE EXPENSES. SINCE, THE DESIGN PROPOSED MAY UNDERGO CHANGES THERE IS NO DEFINITENESS ABOUT THE EXPENDITURE. THERE IS NO CONCLUSIVENESS BETWEEN TH E BENEFIT OF THAT EXPENDITURE AND ITS ENDURING NATURE . WITHOUT PREJUDICE TO THE ABOVE, THE COMPANY HAS NO OBJECTION IF THE SAME IS TREATED AS CAPITAL BECAUSE ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 9 THERE IS VERY THIN LINE OF DISTINCTION BETWEEN REVE NUE AND CAPITAL EXPENDITURE . 3.3. THE LD. ASSESSING OFFICER, CONSIDERING THE AB OVE SUBMISSION OF THE ASSESSEE ALLOWED THE CLAIMED EXPE NSES TOWARDS WORK IN PROGRESS. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE STAND TAK EN IN THE ASSESSMENT ORDER WAS AFFIRMED. THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 3.4. IF THE OBSERVATION MADE IN THE ASSESSMENT ORD ER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, THERE IS NO DISPUTE TO THE FACT THAT THE EXPENSES WERE INCURRED FOR DESIGNING THE S TUDIO WHICH WAS UNDER CONSTRUCTION DURING THE RELEVANT TI ME, THEREFORE, THE EXPENSES ARE TO BE RIGHTLY HELD TO BE CAPITAL IN NATURE AS THE BUSINESS OF THE RUNNING THE STUDIO WAS YET TO COMMENCE. SO FAR AS, COMMISSION OF RS.2,24,720/-, PAID TO PRA XIS IS CONCERNED, THIS AMOUNT WAS PAID FOR ARRANGING LO AN FROM UNION BANK OF INDIA FOR CONSTRUCTION OF KAILASA STU DIO. IT IS NOTED THAT THE PURPOSE AND TO WHOM THE AMOUNT WA S PAID IS NOT CLEAR. IF THE AMOUNT HAS BEEN PAID FOR EXTRANEOUS CONSIDERATION THEN IT CANNOT BE ALLOWED. HOWEVER, DEDUCTION ON ACCOUNT OF INTEREST ON LOAN C ANNOT BE DENIED. THE LOAN WAS TAKEN FOR STARTING THE NEW LINE OF ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 10 BUSINESS I.E. KAILASA STUDIO AND BUSINESS IS YET TO COMMENCE, THEREFORE, IT CANNOT BE ALLOWED. AS MENTI ONED EARLIER, WHAT TYPE OF ARRANGEMENT WAS MADE FOR GETT ING THE LOAN FROM THE BANK, MERE CLAIM IS NOT ENOUGH, THUS, THE STAND TAKEN IN THE IMPUGNED ORDER IS AFFIRMED. 4. THE NEXT GROUND PERTAINS TO PAYMENT OF RS.7,64,937/- TO SHRI MAHESH KHER, BROTHER OF SHRI KAILASH KHER, DIRECTOR OF THE ASSESSEE COMPANY AND DISALLOW ANCE MADE U/S 40(A)(2) CLAIMING TO BE EXCESSIVE, THE CRU X OF ARGUMENT ON BEHALF OF THE ASSESSEE IS THAT GENUINEN ESS OF EXPENSES IS NOT IN DOUBT BY INVITING OUR ATTENTION TO PAGES 149 AND 150 OF THE PAPER BOOK. THE LD. DR DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. 4.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT PAGE 149 AND 150 OF THE PAPER BOOK, THERE ARE TWO BILLS DATED 05/04/2007 AND 30/07/2007, RAISED BY SHRI MAHESH KH ER FOR HANDLING LEGAL MATTERS, CONSULTANCY AND DRAFTIN G OF LEGAL DOCUMENTS. THE PAN NUMBER OF MR. MAHESH KHER HAS AL SO BEEN MENTIONED. THE DEPARTMENT HAS NO DISPUTED THAT THE PAYMENTS WERE MADE TO THE LEGAL CONSULTANT. IT WAS DISALLOWED MERELY ON THE GROUND THAT IT IS HIGHLY E XCESSIVE. WE ARE NOT AGREEING WITH THE PROPOSITION THAT THE P AYMENTS WERE EXCESSIVE, BECAUSE, IT IS BETWEEN THE PARTY TO DECIDE THE PAYMENT. THERE IS NO BAR UNDER STATUTE THAT LE GAL CHARGES CANNOT BE MADE TO THE CLOSE RELATIVE. EVEN ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 11 OTHERWISE, WHEN A LEGAL PERSON IS AVAILABLE WITHIN THE CLOSE RELATIVE, THE ASSESSEE IS NOT EXPECTED TO SEEK LEGA L CONSULTANCY FROM OUTSIDE. IT IS ALSO NOTED THAT THE SHRI MAHESH KHER IS A LAW GRADUATE AND COPY OF AGREEMENT DRAFTED BY HIM WERE FILED BEFORE THE ASSESSING OFFI CER VIDE LETTER DATED 22/11/2010. THUS, THE PAYMENT IS NOT IN DOUBT, CONSEQUENTLY, WE DONT FIND ANY REASONING TO DISALLOW THE SAME, THUS, THIS GROUND OF THE ASSESSE E IS ALLOWED. 5. THE LAST GROUND PERTAINS TO DISALLOWANCE OF CAS H EXPENDITURE OF RS.49,99,500/- UNDER THE HEAD MUSICI AN AND SHOW RELATED EXPENSES. THE CRUX OF ARGUMENT ON BEHALF OF THE ASSESSEE IS THAT EACH PAYMENT IS BELOW RS.20 ,000/-, THEREFORE, IN VIEW OF THE DECISION IN CIT VS ALOO S UPPLY COMPANY 121 ITR 680 (ORISSA) AND CIT VS ASHOK IRON AND STEEL ROLLING MILLS, 320 ITR 101 (ALL.), THE CLAIME D EXPENSES HAS TO BE ALLOWED. OUR ATTENTION WAS INVITED TO PA GES 216, 218,219 TO 225 OF THE PAPER BOOK. 5.1. ON THE OTHER HAND, LD. DR STRONGLY DEFENDED T HE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY INVI TING OUR ATTENTION TO THE FACT THAT THERE ARE NO SIGNATURE O F THE RECIPIENTS OF THE CLAIMED AMOUNT ON THE RECEIPTS, T HUS, THE GENUINENESS OF THE PAYMENTS WERE NOT ESTABLISHED BY THE ASSESSEE. IN REPLY, THE LD. COUNSEL INVITED OUR ATT ENTION TO PAGE 289 OF THE PAPER BOOK AND WITHOUT WAITING FOR THE ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 12 REMAND REPORT FROM THE ASSESSING OFFICER, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DECIDED THE IS SUE. 5.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE CO MING TO ANY CONCLUSION, WE ARE REPRODUCING HEREUNDER THE RE LEVANT PROVISIONS OF THE ACT FOR READY REFERENCE:- 40A. (1) THE PROVISIONS OF THIS SECTION SHALL HAVE EFFE CT NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY OTHER PRO VISION OF THIS ACT RELATING TO THE COMPUTATION OF INCOME UNDER THE HEA D 'PROFITS AND GAINS OF BUSINESS OR PROFESSION'. (2)(A) WHERE THE ASSESSEE INCURS ANY EXPENDITURE IN RESPECT OF WHICH PAYMENT HAS BEEN OR IS TO BE MADE TO ANY PERSON REF ERRED TO IN CLAUSE (B) OF THIS SUB-SECTION, AND THE ASSESSING OFFICER IS O F OPINION THAT SUCH EXPENDITURE IS EXCESSIVE OR UNREASONABLE HAVING REG ARD TO THE FAIR MARKET VALUE OF THE GOODS, SERVICES OR FACILITIES F OR WHICH THE PAYMENT IS MADE OR THE LEGITIMATE NEEDS OF THE BUSINESS OR PRO FESSION OF THE ASSESSEE OR THE BENEFIT DERIVED BY OR ACCRUING TO HIM THEREF ROM, SO MUCH OF THE EXPENDITURE AS IS SO CONSIDERED BY HIM TO BE EXCESS IVE OR UNREASONABLE SHALL NOT BE ALLOWED AS A DEDUCTION : PROVIDED THAT NO DISALLOWANCE, ON ACCOUNT OF ANY EXPENDITUR E BEING EXCESSIVE OR UNREASONABLE HAVING REGARD TO THE FAIR MARKET VALUE, SHALL BE MADE IN RESPECT OF A SPECIFIED DOMESTIC TRANSACTION REFERRED TO IN SECTION 92BA, IF SUCH TRANSACTION IS AT ARM'S LENGTH PRICE AS DEFINED IN CLAUSE (II) OF SECTION 92F. (B) THE PERSONS REFERRED TO IN CLAUSE (A) ARE THE F OLLOWING, NAMELY : (I) WHERE THE ASSESSEE IS AN INDIVIDUAL; ANY RELATIVE O F THE ASSESSEE (II) WHERE THE ASSESSEE IS A COMPANY, FIRM, ASSOCIATION OF PERSONS OR HINDU UNDIVIDED FAMILY DIRECTOR, PARTNER OR MEMB ER ( III ) ANY INDIVIDUAL WHO HAS A SUBSTANTIAL INTEREST IN THE BUSINESS OR PROFESSION OF THE ASSESSEE, OR ANY RELATIVE OF SUCH INDIVIDUAL; ( IV ) A COMPANY, FIRM, ASSOCIATION OF PERSONS OR HINDU UNDIVIDED FAMILY HAVING A SUBSTANTIAL INTEREST IN THE BUSINESS OR PR OFESSION OF THE ASSESSEE OR ANY DIRECTOR, PARTNER OR MEMBER OF SUCH COMPANY, FI RM, ASSOCIATION OR FAMILY, OR ANY RELATIVE OF SUCH DIRECTOR, PARTNER O R MEMBER OR ANY OTHER COMPANY CARRYING ON BUSINESS OR PROFESSION IN WHICH THE FIRST MENTIONED COMPANY HAS SUBSTANTIAL INTEREST; ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 13 ( V ) A COMPANY, FIRM, ASSOCIATION OF PERSONS OR HINDU UNDIVIDED FAMILY OF WHICH A DIRECTOR, PARTNER OR MEMBER, AS THE CASE MA Y BE, HAS A SUBSTANTIAL INTEREST IN THE BUSINESS OR PROFESSION OF THE ASSES SEE; OR ANY DIRECTOR, PARTNER OR MEMBER OF SUCH COMPANY, FIRM, ASSOCIATIO N OR FAMILY OR ANY RELATIVE OF SUCH DIRECTOR, PARTNER OR MEMBER; ( VI ) ANY PERSON WHO CARRIES ON A BUSINESS OR PROFESSIO N, ( A ) WHERE THE ASSESSEE BEING AN INDIVIDUAL, OR ANY R ELATIVE OF SUCH ASSESSEE, HAS A SUBSTANTIAL INTEREST IN THE BUSINES S OR PROFESSION OF THAT PERSON; OR ( B ) WHERE THE ASSESSEE BEING A COMPANY, FIRM, ASSOCI ATION OF PERSONS OR HINDU UNDIVIDED FAMILY, OR ANY DIRECTOR OF SUCH COM PANY, PARTNER OF SUCH FIRM OR MEMBER OF THE ASSOCIATION OR FAMILY, OR ANY RELATIVE OF SUCH DIRECTOR, PARTNER OR MEMBER, HAS A SUBSTANTIAL INTE REST IN THE BUSINESS OR PROFESSION OF THAT PERSON. EXPLANATION. FOR THE PURPOSES OF THIS SUB-SECTION, A PERSON SHA LL BE DEEMED TO HAVE A SUBSTANTIAL INTEREST IN A BUSINESS OR PROFESSION, IF, ( A ) IN A CASE WHERE THE BUSINESS OR PROFESSION IS CA RRIED ON BY A COMPANY, SUCH PERSON IS, AT ANY TIME DURING THE PREVIOUS YEA R, THE BENEFICIAL OWNER OF SHARES (NOT BEING SHARES ENTITLED TO A FIXED RAT E OF DIVIDEND WHETHER WITH OR WITHOUT A RIGHT TO PARTICIPATE IN PROFITS) CARRY ING NOT LESS THAN TWENTY PER CENT OF THE VOTING POWER; AND ( B ) IN ANY OTHER CASE, SUCH PERSON IS, AT ANY TIME D URING THE PREVIOUS YEAR, BENEFICIALLY ENTITLED TO NOT LESS THAN TWENTY PER C ENT OF THE PROFITS OF SUCH BUSINESS OR PROFESSION. (3) WHERE THE ASSESSEE INCURS ANY EXPENDITURE IN RE SPECT OF WHICH A PAYMENT OR AGGREGATE OF PAYMENTS MADE TO A PERSON I N A DAY, OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT, EXCEEDS TWENTY THOUSAND RUPEES, NO DEDUCTION SHALL BE ALLOWED IN RESPECT OF SUCH EXPENDITURE. (3A) WHERE AN ALLOWANCE HAS BEEN MADE IN THE ASSESS MENT FOR ANY YEAR IN RESPECT OF ANY LIABILITY INCURRED BY THE ASSESSEE F OR ANY EXPENDITURE AND SUBSEQUENTLY DURING ANY PREVIOUS YEAR (HEREINAFTER REFERRED TO AS SUBSEQUENT YEAR) THE ASSESSEE MAKES PAYMENT IN RESP ECT THEREOF, OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT, THE PAYMENT SO MADE SHALL BE DEEMED TO BE TH E PROFITS AND GAINS OF BUSINESS OR PROFESSION AND ACCORDINGLY CHARGEABLE T O INCOME-TAX AS INCOME OF THE SUBSEQUENT YEAR IF THE PAYMENT OR AGG REGATE OF PAYMENTS MADE TO A PERSON IN A DAY, EXCEEDS TWENTY THOUSAND RUPEES: PROVIDED THAT NO DISALLOWANCE SHALL BE MADE AND NO PAYMENT SHALL BE DEEMED TO BE THE PROFITS AND GAINS OF BUSINESS OR P ROFESSION UNDER SUB- SECTION (3) AND THIS SUB-SECTION WHERE A PAYMENT OR AGGREGATE OF PAYMENTS MADE TO A PERSON IN A DAY, OTHERWISE THAN BY AN ACC OUNT PAYEE CHEQUE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT, EXCEED S TWENTY THOUSAND RUPEES, IN SUCH CASES AND UNDER SUCH CIRCUMSTANCES AS MAY BE PRESCRIBED 75 , HAVING REGARD TO THE NATURE AND EXTENT OF BANKING FACILITIES ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 14 AVAILABLE, CONSIDERATIONS OF BUSINESS EXPEDIENCY AN D OTHER RELEVANT FACTORS : PROVIDED FURTHER THAT IN THE CASE OF PAYMENT MADE FOR PLYING, HIRING OR LEASING GOODS CARRIAGES, THE PROVISIONS OF SUB-SECT IONS (3) AND (3A) SHALL HAVE EFFECT AS IF FOR THE WORDS 'TWENTY THOUSAND RU PEES', THE WORDS 'THIRTY- FIVE THOUSAND RUPEES' HAD BEEN SUBSTITUTED. (4) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FORCE OR IN ANY CONTRACT, WHERE ANY PAYMENT IN R ESPECT OF ANY EXPENDITURE HAS TO BE MADE BY AN ACCOUNT PAYEE CHEQ UE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT IN ORDER THAT SUCH EXPE NDITURE MAY NOT BE DISALLOWED AS A DEDUCTION UNDER SUB-SECTION (3), TH EN THE PAYMENT MAY BE MADE BY SUCH CHEQUE OR DRAFT; AND WHERE THE PAYMENT IS SO MADE OR TENDERED, NO PERSON SHALL BE ALLOWED TO RAISE, IN A NY SUIT OR OTHER PROCEEDING, A PLEA BASED ON THE GROUND THAT THE PAY MENT WAS NOT MADE OR TENDERED IN CASH OR IN ANY OTHER MANNER. (5) [OMITTED BY THE DIRECT TAX LAWS (AMENDMENT) ACT, 1987, W.E.F. 1-4- 1989. ORIGINAL SUB-SECTION (5) WAS INSERTED BY THE F INANCE (NO. 2) ACT, 1971, W.E.F. 1-4-1972.] (6) [OMITTED BY THE DIRECT TAX LAWS (AMENDMENT) ACT, 1987, W.E.F. 1-4- 1989. ORIGINAL SUB-SECTION (6) WAS INSERTED BY THE F INANCE (NO. 2) ACT, 1971, W.E.F. 1-4-1972.] (7) (A) SUBJECT TO THE PROVISIONS OF CLAUSE (B), NO DEDUCTION SHALL BE ALLOWED IN RESPECT OF ANY PROVISION (WHETHER CALLED A S SUCH OR BY ANY OTHER NAME) MADE BY THE ASSESSEE FOR THE PAYMENT OF GR ATUITY TO HIS EMPLOYEES ON THEIR RETIREMENT OR ON TERMINATION OF T HEIR EMPLOYMENT FOR ANY REASON. (B) NOTHING IN CLAUSE (A) SHALL APPLY IN RELATION TO ANY PROVISION MADE BY THE ASSESSEE FOR THE PURPOSE OF PAYMENT OF A SUM BY WAY OF ANY CONTRIBUTION TOWARDS AN APPROVED GRATUITY FUND, OR FOR THE PURPOSE OF PAYMENT OF ANY GRATUITY, THAT HAS BECOME PAYABLE DURI NG THE PREVIOUS YEAR. EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT WHERE ANY PROVISION MADE BY THE ASSESSEE FOR THE PAYME NT OF GRATUITY TO HIS EMPLOYEES ON THEIR RETIREMENT OR TERMINATION O F THEIR EMPLOYMENT FOR ANY REASON HAS BEEN ALLOWED AS A DED UCTION IN COMPUTING THE INCOME OF THE ASSESSEE FOR ANY ASSESSME NT YEAR, ANY SUM PAID OUT OF SUCH PROVISION BY WAY OF CONTRIBUTION TO WARDS AN APPROVED GRATUITY FUND OR BY WAY OF GRATUITY TO ANY EMPLOYEE SHALL NOT BE ALLOWED AS A DEDUCTION IN COMPUTING THE INCOME OF THE ASSESSEE OF THE PREVIOUS YEAR IN WHICH THE SUM IS SO PAID. (8) [* * *] (9) NO DEDUCTION SHALL BE ALLOWED IN RESPECT OF ANY SUM PAID BY THE ASSESSEE AS AN EMPLOYER TOWARDS THE SETTING UP OR FO RMATION OF, OR AS CONTRIBUTION TO, ANY FUND, TRUST, COMPANY, ASSOCIAT ION OF PERSONS, BODY OF INDIVIDUALS, SOCIETY REGISTERED UNDER THE SOCIET IES REGISTRATION ACT, ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 15 1860 (21 OF 1860), OR OTHER INSTITUTION FOR ANY PURP OSE, EXCEPT WHERE SUCH SUM IS SO PAID, FOR THE PURPOSES AND TO THE EXTE NT PROVIDED BY OR UNDER CLAUSE (IV) OR CLAUSE (IVA) OR CLAUSE (V) OF SUB-SECTION (1) OF SECTION 36, OR AS REQUIRED BY OR UNDER ANY OTHER LAW FOR THE TIME BEING IN FORCE. (10) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ON (9), WHERE THE ASSESSING OFFICER IS SATISFIED THAT THE FUND, TRUST, COMPANY, ASSOCIATION OF PERSONS, BODY OF INDIVIDUALS, SOCIETY OR OTHER I NSTITUTION REFERRED TO IN THAT SUB-SECTION HAS, BEFORE THE 1ST DAY OF MARCH, 1984, BONA FIDE LAID OUT OR EXPENDED ANY EXPENDITURE (NOT BEIN G IN THE NATURE OF CAPITAL EXPENDITURE) WHOLLY AND EXCLUSIVELY FOR THE W ELFARE OF THE EMPLOYEES OF THE ASSESSEE REFERRED TO IN SUB-SECTION (9) OUT OF THE SUM REFERRED TO IN THAT SUB-SECTION, THE AMOUNT OF SUCH EX PENDITURE SHALL, IN CASE NO DEDUCTION HAS BEEN ALLOWED TO THE ASSESSEE IN RESPECT OF SUCH SUM AND SUBJECT TO THE OTHER PROVISIONS OF THIS ACT, B E DEDUCTED IN COMPUTING THE INCOME REFERRED TO IN SECTION 28 OF THE ASSESSEE OF THE PREVIOUS YEAR IN WHICH SUCH EXPENDITURE IS SO LAID OUT OR EXPENDED, AS IF SUCH EXPENDITURE HAD BEEN LAID OUT OR EXPENDED BY THE ASSESSEE. (11) WHERE THE ASSESSEE HAS, BEFORE THE 1ST DAY OF MARC H, 1984, PAID ANY SUM TO ANY FUND, TRUST, COMPANY, ASSOCIATION OF PERSONS, BODY OF INDIVIDUALS, SOCIETY OR OTHER INSTITUTION REFERRED T O IN SUB-SECTION (9), THEN, NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW OR IN ANY INSTRUMENT, HE SHALL BE ENTITLED (I) TO CLAIM THAT SO MUCH OF THE AMOUNT PAID BY HIM AS HAS NOT BEEN LAID OUT OR EXPENDED BY SUCH FUND, TRUST, COMPANY, A SSOCIATION OF PERSONS, BODY OF INDIVIDUALS, SOCIETY OR OTHER INSTI TUTION (SUCH AMOUNT BEING HEREINAFTER REFERRED TO AS THE UNUTILISED AMOUN T) BE REPAID TO HIM, AND WHERE ANY CLAIM IS SO MADE, THE UNUTILISED A MOUNT SHALL BE REPAID, AS SOON AS MAY BE, TO HIM; (II) TO CLAIM THAT ANY ASSET, BEING LAND, BUILDING, MACHINERY, PLANT OR FURNITURE ACQUIRED OR CONSTRUCTED BY THE FUND, TRUST , COMPANY, ASSOCIATION OF PERSONS, BODY OF INDIVIDUALS, SOCIET Y OR OTHER INSTITUTION OUT OF THE SUM PAID BY THE ASSESSEE, BE TRANSFERRED T O HIM, AND WHERE ANY CLAIM IS SO MADE, SUCH ASSET SHALL BE TRANSFERRED , AS SOON AS MAY BE, TO HIM. (12) [OMITTED BY THE FINANCE ACT, 1992, W.E.F. 1-4-1 993.] 5.3. AS PER THE AFORESAID SECTION, THE ASSESSEE IS EXPECTED TO EXPLAIN THE LEGITIMATE NEEDS OF THE ASS ESSEE AND CONSEQUENT PAYMENTS. WE FIND THAT THE ASSESSEE CLAI M TO HAVE MADE PAYMENTS TO THE FOLLOWING PARTIES/HEADS. ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 16 SL. NO. NAME OF THE PARTY/HEAD AMOUNT (IN RS.) 1. SECURITY STAGE & STAFF 10,04,000 2. TRANSPORTATION 6,74,500 3. INSTRUMENTS FITTING AT SITE 5,55,000 4. ELECTRICIAN 6,80,000 5. TRAVEL LOCAL 8,46,500 6. MISCELLANEOUS 7,40,000 7. LOADING & UNLOADING CHARGES 4,99,5000 TOTAL 49,99,500 THERE IS CATEGORICAL FINDING IN THE ASSESSMENT ORDE R THAT THE ABOVE EXPENDITURE WAS CLAIMED TO BE THROUGH SEL F MADE VOUCHERS, WHICH NEITHER CONTAINED THE NAME OF THE RECIPIENT NOR SIGNATURE, CONSEQUENTLY, THE GENUINEN ESS OF THE CLAIM WAS NOT ESTABLISHED AND EVEN THE IDENTITY OF THE PAYEE WAS NOT ESTABLISHED BY THE ASSESSEE. THE DATE WISE CLAIM OF EXPENSES AND PLACE HAS BEEN REPRODUCED AT PAGE-6 (PARA-10.1) OF THE ASSESSMENT ORDER FOR THE AMOUNT OF RS.13,55,000/-, NO RECEIPT/BILL WAS SHOWN. THE FIND ING CONTAINED IN PARA 10.2 OF THE ASSESSMENT ORDER WAS NEITHER CONTROVERTED NOR PRODUCED ANY SATISFACTORY EVIDENCE FOR THE CLAIM BY THE ASSESSEE. EVEN, BEFORE THE LD. COMMISS IONER OF INCOME TAX (APPEALS), THE FINDING CONTAINED IN PARA 8.4 WAS NEITHER SUBSTANTIATED NOR ANY EVIDENCE WAS PLACED B EFORE US. IT IS ALSO NOTED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) EXAMINED THE VOUCHERS AND THE CASH BO OK AND IT WAS FOUND BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT THEY ARE NOT MATCHING, THUS, IT WAS CONCLUDED THAT THE CLAIMED AMOUNT IS NOT ONLY BOGUS AND ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 17 UNVOUCHED BUT ALSO HIT BY THE PROVISIONS OF SECTION 40A(3) OF THE ACT. WE HAVE ALSO PERUSED THE RECORD & PAPER BOOK NO. 2 (PAGES 8 TO 406). AT PAGE-8, 10, 11,12, 13, 14, 15, 16, 24, 26, 27, 28, 29, 30, 31, 32, 40, 42, 43, 44, 45, 46, 47, 48, 58, 59, 60, 61, 62, 63, 64, 73, 75, 76, 77, 78, 79, 80, 81, 108, 109, 110, 111, 112 AND SO ON) OF THE PAPER BOOK, NEITHER THERE IS NAME OF THE RECIPIENT NOR ANY SIGN ATURE. THE ASSESSEE HAS NEITHER PROVED THE IDENTITY NOR TH E GENUINENESS OF THE PAYMENT. THIS FACTUAL MATRIX, D URING HEARING, WAS EVEN BROUGHT TO THE NOTICE OF THE LD. COUNSEL FOR THE ASSESSEE. HE MERELY CLAIMED THAT ACCOUNT H AS BEEN PREPARED. IN THE ABSENCE OF SATISFACTORY EXPLANATI ON OF THE ASSESSEE, WE FIND NO MERIT IN THIS GROUND, CONSEQUE NTLY, THE STAND OF THE LD. COMMISSIONER OF INCOME TAX (AP PEALS) IS AFFIRMED. SO FAR AS, THE CASE OF CIT VS ASHOK IRON AND STEEL ROLLING MILLS AND CIT VS ALOO SUPPLY COMPANY (SUPRA ), RELIED UPON BY THE ASSESSEE WITH RESPECT TO DISALLO WANCE OF EXPENDITURE, WHERE THE PAYMENTS ARE IN EXCESS OF TH E AMOUNTS PRESCRIBED UNDER THE ACT OTHERWISE THEN BY A CROSS CHEQUE/DRAFT, SECTION 40A(3) DOES NOT APPLY U NLESS ANYONE PAYMENT IS ABOVE THE PRESCRIBED LIMIT, IS CO NCERNED, WE ARE NOT AGREEING WITH THE PROPOSITION OF THE LD. COUNSEL, BECAUSE, THESE CASES FIRSTLY ARE ON DIFFERENT FACTS AND SECONDLY, THE ASSESSEE HAS NEITHER ESTABLISH THE ID ENTITY OF THE PAYEE NOR THE GENUINENESS OF THE PAYMENTS. WE H AVE PERUSED THE RECORD AND FOUND THAT THE FACTUAL FINDI NG ITA NO.626/MUM/2012 KAILASA ENTERTAINMENT PVT. LTD. 18 RECORDED IN THE IMPUGNED ORDER IS CORRECT, THUS, FR OM THIS ANGLE ALSO, THE STAND OF THE LD. COMMISSIONER OF IN COME TAX (APPEALS) IS AFFIRMED. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 17/03/2016. SD/- SD/- (RAJENDRA) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER # $ MUMBAI; ) DATED : 18/03/2016 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. / THE RESPONDENT. 3. + + # ,! ( ) / THE CIT, MUMBAI. 4. + + # ,! / CIT(A)- , MUMBAI, 5. /'01 !2 , + & 23 , # $ / DR, ITAT, MUMBAI 6. 1 4 5$ / GUARD FILE. / BY ORDER, /! ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI