FERANI HOTELS P.LTD, MUMBAI V. ACIT CEN CIR 4(1), MUMBAI

ITA 6332/MUM/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 6792 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 27-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Business income; Earning of tax free income; Deemed to accrue or arise in india
• Section: 142(1); 14A; 115JB; 80IB; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI RAJESH KUMAR , AM AND SHRI AMARJIT SINGH , JM I.T.A. NO . 6332 /M/ 20 1 6 ( ASSESSMENT YEAR : 201 2 - 1 3 ) FERANI HOTELS PVT. LTD. CONSTRUCTION HOUSE - B, 2 ND FLOOR, 623, LINKING ROAD, KHAR (W), MUMBAI - 400052 . VS. ACIT CENTRAL CIRCLE - 4(1), ROOM NO.1906, 19 TH FLOOR AIR INDIA BLDG, NARIMAN POINT, MUMBAI - 400021. ./ ./ PAN/GIR NO. : AAACF 0693 B ( APPELLANT ) .. ( RESPONDENT ) DATE OF HEARING : 27 . 0 9 .2018 DATE OF PRONOUNCEMENT : 21. 12 . 201 8 O R D E R PER AMARJIT SINGH, JM: THE PRESENT APPEA L HA S BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 18 . 0 8 .201 6 PASSED BY THE COMMIS S IONER OF INCOME TAX (APPEALS) - 52 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR 2012 - 13 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE AMOUNTING TO RS.20,06,815/ - MADE BY THE LD. AO U/S 14A R.W.RULE 8D IN RESPECT OF INCOME NOT FORMING PART OF TOTAL INCOME. 2( A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LD. CIT(A) ERRED IN UPHOLDING THAT AO HAS RIGHTLY ASSESSED DEEMED INCOME FROM UNSOLD UNITS/FLATS WHICH IS CLOSING ASSESSEE BY: SHRI SANJAY SAWANT DEPARTMENT BY: SHRI S. PADMAJA ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 2 STOCK OF THE APPELLANT AS PER PROVISIONS OF SECTIONS 22 AND 23 OF THE ACT, AND CONFIRMED ADDITION OF RS.13,22,90,044/ - UNDE R THE HEAD INCOME FROM HOUSE PROPERTY. 2(B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN NOT FOLLOWING JURISDICTIONAL HONBLE ITAT JUDGMENT IN THE CASE OF M/S. CR DEVELOPMENT P. LTD. V JCIT - 8(1)(OSD), MUMBAI (ITA. NO. 4277/M/2012) WHICH WAS RELIED ON HONBLE SPRING COURT DECISION IN THE CASE OF CHENNAI PROPERTIES & INVESTMENT LTD. V CIT(A) (2 015) 373 ITR 673 (SC) ON THE PRETEXT THAT HONBLE ITAT HAS NOT DISCUSSED THE ISSUE RAISED IN DELHI HIGH COURT JUDGMENT IN THE CASE OF ANSAL HOUSING FINANCE & LEASING CO. LTD. (2013) 354 ITR 180. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED I TS RETURN OF INCOME ON 30 . 09 .20 1 2 FOR THE A.Y.2012 - 13 DECLARING TOTAL IN COME TO THE TUNE OF RS. NIL. T HE CASE WAS SELECTED FOR SCRUTINY AND NOTICE S U/S 143(2) & 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE IS A PRIVATE LIMITED COMPANY, DERIVING INCOME FROM HOTEL BUSINESS AND CONSTRUCTION . THE COMPANY IS RUNNING A FIVE STAR HOTEL IN THE NAME AND STYLE OF THE CARLTON AT KODAIKANNAL, TAMIL NADU, HAVING ROOMS AND OTHER FACILITIES . THE ASSESSEE ALSO DERIVED INCOME FROM DIVIDEND, SHARE OF PROFIT FROM PARTNERSHIP FIRM AND PROFIT FROM SALE OF FLATS. THE ASSESSEE ALSO SHOWED THE INCOME FROM HOUSE PROPERTY, PROFIT AND GAINS OF BUSINESS. THE COMPANY WAS ALSO CLAIMED DEDUCTION U/S 80IB OF THE ACT. ON VERIFI CATION, IT WAS FOUND THAT THE ASSESSEE EARNED THE DIVIDEND INCOME TO THE TUNE OF RS.36,23,782/ - AND SHARE OF PROFIT FROM PARTNERSHIP FIRM OF RS.1,40,307/ - WHICH WAS CLAIMED EXEMPT U/S 10 OF THE ACT. THE AO APPLIED THE PROVISION OF SECTION 14A R.W. RULE 8D OF THE ACT AND ASSESSED THE EXPENDITURE TO ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 3 EARN THE EXEMPT INCOME TO THE TUNE OF RS.20,06,815/ - . THE AO ALSO ASSESSED THE ANNUAL LETTING VALUE OF FINISHED PROPERTY HELD IN STOCK TO THE TUNE OF RS.13,22,99,044/ - . THE DEDUCTION U/S 80IB(10) OF THE ACT WAS AL SO RESTRICTED TO THE BUSINESS INCOME AND THE INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS. 16,20,42,270/ - AND BOOK PROFIT U/S 115JB OF THE ACT WAS TO THE TUNE OF RS.12,90,45,140/ - . FEELING AGGRIEVED , THE ASSESSEE HAS FILED AN APPEAL BEFORE THE CIT(A) WHO DISMISSED THE APPEAL , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO.1 4 . WE HAVE HEARD THE ARGUMENT AND ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. UNDER THIS I SSUE THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.20,00,000/ - ON ACCOUNT OF EXPENSES INCURRED TO EARN THE EXEMPT INCOME U/S 14A R.W. RULE 8D OF THE ACT. AT THE VERY OUTSET, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT THE ASSESSEES OWN FUND IS TO THE TUNE OF RS.442,42,18,379/ - AND THE INVESTMENT AS ON 31.03.2012 WAS TO THE TUNE OF RS.4.81 CRORES SO IT IS QUITE CLEAR THAT THE ASSESSEE HAS INVESTED ITS OWN FUND WHICH YIELD ED TAX FREE INCOME SO NO DISALLOWANCE IS REQUIRED IN VIEW OF PROVISION U/S 14A R.W. RULE 8D OF THE ACT. THE ASSESSEE IN SUPPORT OF HIS CONTENTION RELIED UPON THE LAW SETTLED IN CIT VS. PALM GROVE BEACH HOTELS PVT. LTD. (ITA. NO. 27 OF 2014) DATED 11.07.2016 & HDFC BANK LTD VS. DCIT & ORS 2016 383 ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 4 ITR 529 (BOM) AND FERANI HOTELS PVT. LTD. VS. ACIT. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE REVENUE HAS REFUTED THE SAID CONTENTION. THE COPY OF BALANCE - SHEET LIES AT PAGE NO. 9 OF THE PAPER BOOK SPEAKS ABOUT THIS FACT THAT THE ASSESSEE WAS HAVING ITS OWN FUND AS ON 31. 03.2012 TO THE TUNE OF RS.442,42,18,379/ - AND THE INVESTMENT WAS TO THE TUNE OF RS.4,81,75,394/ - . THE ASSESSEE WAS HAVING ITS OWN FUND SUFFICIENT TO INVEST THE MONEY TO THE TUNE O F RS.4.81 CRORES WHICH YIELDED TAX FREE INCOME. WHEN A PERSON WHO WAS HAVING I TS OWN FUND MORE THAN THE INVESTMENT THEN IT WOULD BE PRESUMED THAT THE INVESTMENT WAS MADE OUT OF HIS OWN FUND. IN THE CASE OF HDFC BANK LTD VS. DCIT & ORS 2016 383 ITR 529 (BOM). IT IS SPECIFICALLY HELD THAT THE NO DISALLOWANCE IS PERMISSIBLE U/S 14A OF THE I.T. ACT, 1961 IF, THE INVESTMENT IN TAX FREE SECURITIES HAS BEEN MADE FROM INTEREST FREE FUND S. IN THE GROUP CONCERN CASE TITLE D AS CIT VS. PALM GROVE BEACH HOTELS PVT. LTD. (ITA. NO. 27 OF 2014) DATED 11.07.2016. THE HONBLE BOMBAY HIGH COURT HAS HEL D THAT THE NO DISALLOWANCE U/S 14A R.W. RULE 8D OF THE ACT IS REQUIRED IF, THE ASSESSEE USES IT IS OWN FUND FOR THE INVESTMENT TO EARN THE EXEMPT INCOME. THE HONBLE ITAT MUMBAI BENCH IN THE CASE OF IN ITA. NO. 5157/M/2013 TITLED AS FERANI HOTELS PVT. LTD. VS. ACIT DATED 04.02.2016 HAS HELD IN PARA NO. 8 AS UNDER: - 8. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. UNDISPUTEDLY, THE ISSUE RELATING TO DISALLOWANCE OF EXPENDITURE U/S 14A R/W RULE ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 5 8D, WAS SUBJECT MATTER OF DISPUTE IN ASSESSMENT YEAR 2009 - 10. THE CO - ORDINATE BENCH OF THE TRIBUNAL WHILE CONSIDERING THE ISSUE IN ASSESSEES OWN CASE FOR THE SAID ASSESSMENT YEAR IN ITA. NO.857/M/2013 DATED 17.11.2014 HELD AS UNDER.: - 3.1 AS REGARDS THE CLAIM QU A DISALLOWANCE OF INTEREST EXPENDITURE, THE ARGUMENT OF SUFFICIENT CAPITAL, SO THAT THE SAME MUST BE PRESUMED AS HAVING BEEN APPLIED TOWARD INVESTMENTS YIELDING TAX EXEMPT INCOME, MISSES THE POINT COMPLETELY. THE MATTER HAS TO HTTP://WWW.ITATONLINE.ORG 3 I TA NO. 857/MUM/2013 (A.Y. 2009 - 10) FERANI HOTELS PVT. LTD. VS. ASST. CIT BE DECIDED ON THE BASIS OF FACTS AND NOT PRESUMPTIONS. UNTIL AND UNLESS THEREFORE IT IS SHOWN AND, AGAIN, WITH REFERENCE TO THE ASSESSEES ACCOUNTS, THAT THE INVESTMENTS HAVE BEEN FIN ANCED FROM OWN CAPITAL, SO THAT NO PART OF THE BORROWED CAPITAL HAS BEEN UTILIZED FOR THE PURPOSE, NO SUCH PRESUMPTION WOULD HOLD, AND THE RULE OF APPORTIONMENT, PRESCRIBED BY R. 8D, MANDATORY W.E.F. A.Y. 2008 - 09, SHALL APPLY. THE DECISION IN THE CASE OF R ELIANCE UTILITIES & POWER LTD. (SUPRA) STANDS RENDERED IN THE CONTEXT OF SECTION 36(1)(III), AND WOULD THUS BE OF LITTLE RELEVANCE. IT NEEDS TO BE APPRECIATED THAT THE DISALLOWANCE U/S.14A IS A STATUTORY DISALLOWANCE, CONSTITUTING A COMPLETE CODE IN ITSELF . THE SAID DECISION WAS CITED BEFORE, AND STANDS DISCUSSED BY THE HONBLE JURISDICTIONAL HIGH COURT IN GODREJ & BOYCE MFG. CO. LTD. V. DY. CIT [2010] 328 ITR 81 (BOM). IT STANDS EXPLAINED THAT SECTION 14A HAS WIDEN THE THEORY OF APPORTIONMENT, WHICH ONLY S EEKS TO EFFECTUATE THE PRINCIPLE OF ONLY THE NET (I.E., NET OF ALL EXPENSES) INCOME, WHETHER POSITIVE OR NEGATIVE, BEING LIABLE TO, OR NOT SO, I.E., AS THE CASE MAY BE, TO TAX. THE RELEVANT DISCUSSION APPEARS AT PARAS 85 - 86 (PGS. 135 - 137 OF THE REPORTS), A PART OF WHICH WE CONSIDER IT RELEVANT TO REPRODUCE, AS UNDER: IN ALL THESE DECISIONS, THE TRIBUNAL HELD THAT NO NEXUS HAD BEEN ESTABLISHED BETWEEN BORROWED FUNDS AND INVESTMENTS BY THE ASSESSEE IN DIVIDEND YIELDING SHARES/INCOME YIELDING MUTUAL FUNDS. NO W ASSUMING THAT THIS IS SO, THE ONLY CONCLUSION WHICH EMERGES IS THAT THE ASSESSEE HAD UTILIZED ITS OWN FUNDS FOR THE PURPOSE OF MAKING THE INVESTMENTS. THE FACT THAT THE ASSESSEE HAS UTILIZED ITS OWN FUNDS IN MAKING THE INVESTMENTS WOULD NOT BE DISPOSITIV E OF THE QUESTION AS TO WHETHER THE ASSESSEE HAD INCURRED EXPENDITURE IN RELATION TO THE EARNING OF SUCH INCOME. EVEN IF THE ASSESSEE HAS UTILIZED ITS OWN FUNDS FOR MAKING INVESTMENTS WHICH HAVE RESULTED IN INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCO ME UNDER THE ACT, THE EXPENDITURE WHICH IS INCURRED IN THE EARNING OF THAT INCOME WOULD HAVE TO BE DISALLOWED. THAT IS EXACTLY A MATTER WHICH THE ASSESSING OFFICER HAS TO DETERMINE. WHETHER OR NOT ANY EXPENDITURE WAS INCURRED BY THE ASSESSEE IN RELATION TO THE EARNING OF NON - TAXABLE INCOME FALLS WITHIN THE DOMAIN OF THE ASSESSING OFFICER. THE ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 6 BASIS ON WHICH THE TRIBUNAL HAD COME TO ITS DECISION FOR THE ASSESSMENT YEARS 1998 - 99, 1999 - 2000 AND 2001 - 02 WOULD NOT CONCLUDE THAT QUESTION. WHERE THEREFORE THE ASS ESSEE IS ABLE TO SHOW, WITH REFERENCE TO ITS ACCOUNTS, OF THE BORROWED CAPITAL HAVING FINANCED A PARTICULAR ASSET (OR ASSET CLASS), THE INTEREST COST HTTP://WWW.ITATONLINE.ORG 4 ITA NO. 857/MUM/2013 (A.Y. 2009 - 10) FERANI HOTELS PVT. LTD. VS. ASST. CIT RELA TABLE THERETO WOULD NECESSARILY HAVE TO BE CONSIDER AS EXPENDED TOWARD THE SAME. UPON THIS BEING CONVEYED BY THE BENCH DURING HEARING, THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, WOULD SUBMIT THAT THE BORROWED CAPITAL IN THE INSTANT CAS E IS IN FACT WHOLLY FOR BUSINESS PURPOSES, BEING TOWARD THE ASSESSEES HOTEL PROJECT AT KODAIKANAL AND THE REAL ESTATE BUSINESS AT MUMBAI. WE OBSERVE NO FINDINGS IN THE MATTER ON RECORD. SO, HOWEVER, IF, AS CLAIMED, THE BORROWED CAPITAL IS IN THE FORM OF D EDICATED FUNDS, I.E., SPECIFIED ACTIVITIES AND/OR ASSETS, SO THAT THE SAME STANDS UTILIZED FOR THE SAME PURPOSE/S, AND WHICH WOULD BE WHERE THE TERMS AND CONDITIONS OF THE BORROWING HAVE BEEN MET, THERE COULD BE NO PRESUMPTION WITH REGARD TO THE BORROWED F UNDS HAVING BEEN USED FOR ANY PURPOSE OTHER THAN THE SAME AND, ACCORDINGLY, NO PART OF THE INTEREST COULD BE CONSIDERED AS HAVING NOT BEEN UTILIZED FOR BUSINESS PURPOSES AND, HENCE, TOWARD FINANCING THE INVESTMENT/S. THE PRESUMPTION OF PROPORTIONATE FUNDIN G, ON WHICH THE FORMULA PRESCRIBED U/R. 8D(2)(II) IS PREMISED, WOULD NOT OBTAIN IN THAT CASE. THIS REPRESENTS THE FINDING BY THE TRIBUNAL IN SEVERAL CASES, APPLYING GODREJ & BOYCE MFG. CO. LTD. (SUPRA), AS IN THE CASE OF HERCULES HOISTS LTD. VS. ASST. CIT [2013] 22 ITR (TRIB.) 527 (MUM); KUNAL CORPORATION VS. ASST. CIT [2013] 28 ITR (TRIB) 277 (MUM); AND AFL P. LTD. VS. ASST. CIT [2013] 28 ITR (TRIB) 263 (MUM). UNDER THE CIRCUMSTANCES, WE ONLY CONSIDER FIT AND PROPER THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE A.O. TO ALLOW THE ASSESSEE AN OPPORTUNITY TO PRESENT AND EXHIBIT ITS CASE AS STATED HEREINABOVE, THE ONUS FOR WHICH WOULD ONLY BE ON IT, AND SHALL STAND TO BE DECIDED IN TERMS OF OUR FOREGOING OBSERVATIONS, ON THE BASIS OF DEFINITE FINDINGS OF FACT TO BE ISSUED BY THE A.O. THE OTHER ASPECT OF THE DISALLOWANCE U/S. 14A IS IN RESPECT OF INDIRECT ADMINISTRATIVE EXPENDITURE, COVERED UNDER RULE 8D(2)(III), AT RS. 10.10 LACS THE SAME STANDS MADE APPLYING THE SAID RULE. WHILE THE A.O. EFFECTED THE DISA LLOWANCE INVOKING THE SAID RULE, MANDATORY FOR THE CURRENT YEAR, THE LD. CIT(A), IN APPEAL, REJECTED THE ASSESSEES CONTENTION OF THE RULE BEING ARBITRARY. FURTHER, THE A.O. HAVING RENDERED HIS SATISFACTION WITH REFERENCE TO THE FACTS OF THE CASE, RULE 8D STOOD TRIGGERED AND, ACCORDINGLY, THE DISALLOWANCE WAS TO BE, IN HIS VIEW, CONFIRMED. NO SPECIFIC CONTENTION IN THIS REGARD STOOD MADE BEFORE US. THE ASSESSEE FAILING TO SUBSTANTIATE ITS CLAIM OF HAVING NOT INCURRED ANY ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 7 EXPENDITURE IN RELATION TO INCOME NO T FORMING PART OF THE TOTAL HTTP://WWW.ITATONLINE.ORG 5 ITA NO. 857/MUM/2013 (A.Y. 2009 - 10) FERANI HOTELS PVT. LTD. VS. ASST. CIT INCOME, WE FIND NO INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW AND, ACCORDINGLY, CONFIRM THE DISALLOWANCE OF THE INDIRECT ADMINISTRATIVE EXPENDITURE, WHICH IS THE SUBJECT MATTER OF DISALLOWANCE UNDER R.8D(2)(III), I.E., IN PRINCIPLE. WE MAY THOUGH FURTHER CLARIFY THAT THE DISALLOWANCE QUA INVESTMENT IN PARTNERSHIP FIRM, I.E., TO THE EXTENT IT SURVIVES OUR DIRECTIONS AFORE - SA ID, SHALL BE COMPUTED IN TERMS OF THE DECISION BY THE LARGER BENCH OF THE TRIBUNAL IN VISHNU ANAND MAHAJAN (SUPRA). WE DECIDE ACCORDINGLY. THERE BEING NO MATERIAL DIFFERENCE IN FACTS, RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL, WE RESTORE T HE MATTER BACK TO THE FILE OF THE AO FOR DENOVO ADJUDICATION IN TERMS WITH THE DIRECTION CONTAINED THEREIN. GROUND NO.1 IS ALLOWED FOR STATISTICAL PURPOSES . 5. TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES AND BY RELYING UPON THE LAW SETTLED IN ABOVE MENTIONED CASES. NO DISALLOWANCE U/S 14A R.W. RULE 8D OF THE ACT IS REQUIRED IN THE PRESENT CASE, THEREFORE, WE ARE OF THE VIEW THAT THE FINDING OF THE CIT(A) IS WRONG AGAINST LAW AND FACTS, THEREFORE, WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS I SSUE AND DELETE THE ADDITION RAISED ON ACCOUNT OF U/S 14A R.W. RULE 8D OF THE ACT. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NO.2 6 . UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF THE ADDITION OF RS.13,22,90,044/ - UNDER THE HEAD OF INCOME FROM HOUSE PROPERTY ON ACCOUNT OF DEEMED INCOME FROM UNSOLD UNIT/ FLAT W HICH WAS CLOSING STOCK OF THE APPELLANT AS PER PROVISIONS OF SECTIONS 22 AND 23 OF THE ACT. AT THE VERY OUTSET, THE LD. REPRESENTATIVE OF THE ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 8 ASSESSEE HAS ARGUED THAT THE ASSESSEE IS DERIVING ITS INCOME FROM HOTEL BUSINESS AND CONSTRUCTION. THE ASSESSEE WAS ALSO DERIVING INCOME FROM DIVIDEND, SHARE OF PROFIT AND SALE OF FLATS AND DUE TO THE RECESSION, T HE ASSESSEE FAILED TO SOLD OUT ALL THE FLATS, THEREFORE, SOME FLATS REMAIN VACANT WHICH WAS BEING TREATED AS STOCK IN TRADE . T HE AO H AS WRONGLY ASSESSED THE NOTIONAL RENT AND ASSESSED THE RENT IN VIEW OF THE PROVISION U/S 24 OF THE ACT WRONGLY WHICH CAN ONLY BE TREATED UNDER THE HEAD OF INCOME FRO M BUSINESS, THEREFORE, THE FINDING OF THE CIT(A) IS WRONG AGAINST LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. IT IS ALSO ARGUED THAT THE CASE OF THE ASSESSEE HAS DULY BEEN COVERED IN CASE OF RUNWAL CONSTRUCTION VS. ACIT IN ITA. NO. 5408/M/2016 & C.R. DEVELOPMENTS VS. JCIT IN ITA. NO. 4277/M/2012 DATED 13.05.2015. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE FACTS OF THE CASE AND RELEVANT RECORD ON THE FILE, WE NOTICED THAT T HE OBJECT OF THE ASSESSEE IS DERIVING OF INCOME FROM HOTEL BUSINESS AND CONSTRUCTION. THE ASSESSEE COMPANY IS RUNNING A FIVE STAR HOTEL IN THE NAME AND STYLE OF THE CARLTON AT KODAIKANNAL, TAMIL NADU, HAVING ROOMS AND OTHER FACILITIES. THE ASSESSEE ALSO DERI VED INCOME FROM DIVIDEND, SHARE OF PROFIT FROM PARTNERSHIP FIRM AND PROFIT FROM SALE OF FLATS. THE ASSESSEE FAILED TO SOLD THE FLAT WHICH WAS BEING TREATED BY HIM AS STOCK IN TRADE. THE AO ASSESSED THE NOTIONAL INCOME AND BROUGHT TO TAX AS INCOME AS HOUSE PROPERTY WHICH HAS NO DOUBT CONFIRMED BY CIT(A) . IT IS TO BE SEEN WHETHER THE INCOME OF THE ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 9 ASSESSEE IS LIABLE TO BE TREATED AS HOUSE PROPERTY OR BUSINESS INCOME. IT IS NECESSARY TO DISCUSS THE FINDING I N THE CASE OF M/S. RUNWAL CONSTRUCTIONS VS. ACIT IN ITA. NO.5409/M/2016 DATED 22.02.2018 WHICH HAS BEEN GIVEN IN PARA NO. 7 TO 10 AND ARE HEREBY RE PRODUCED AS UNDER.: - 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE DECIS IONS RELIED UPON. IT IS AN UNDISPUTED FACT THAT THE ASSESSEES ARE IN THE BUSINESS OF BUILDERS, DEVELOPERS AND CONSTRUCTION. BOTH THE ASSESSEES HAVE CONSTRUCTED VARIOUS PROJECTS AND THE PROJECTS WERE TREATED AS STOCK IN TRADE IN THE BOOKS OF ACCOUNT. FLATS SOLD BY THE ASSESSEES WERE ASSESSED UNDER THE HEAD INCOME FROM BUSINESS. THERE WERE CERTAIN UNSOLD FLATS IN STOCK IN TRADE WHICH THE AO TREATED AS PROPERTY ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND COMPUTED NOTIONAL ANNUAL LETTING VALUE ON SUCH UNSOLD FLATS PLACING RELIANCE ON THE DECISION IN THE CASE OF ANSAL HOUSING FINANCE & LEASING CO. LTD. (SUPRA). THE ACTION OF THE AO WAS UPHELD BY THE LEARNED CIT(A). 8. THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF NEHA BUILDERS PVT. LTD. (SUPRA) C ONSIDERED THE QUESTION WHETHER THE RENTAL INCOME RECEIVED FROM ANY PROPERTY IN THE CONSTRUCTION BUSINESS CAN BE CLAIMED UNDER THE HEAD INCOME FROM PROPERTY EVEN THOUGH THE SAID PROPERTY WAS INCLUDED IN THE CLOSING STOCK. THE HON'BLE GUJARAT HIGH COURT HE LD THAT IF THE BUSINESS OF THE ASSESSEE IS TO CONSTRUCT THE PROPERTY AND SELL IT OR TO CONSTRUCT AND LET OUT THE SAME, THEN THAT WOULD BE THE BUSINESS AND THE BUSINESS STOCKS, WHICH MAY INCLUDE MOVABLE AND IMMOVABLE, WOULD BE TAKEN TO BE STOCK IN TRADE AND ANY INCOME DERIVED FROM SUCH STOCKS CANNOT BE TERMED AS INCOME FROM HOUSE PROPERTY. WHILE HOLDING SO THE HON'BLE HIGH COURT OBSERVED AS UNDER: - 8. TRUE IT IS, THAT INCOME DERIVED FROM THE PROPERTY WOULD ALWAYS BE TERMED AS 'INCOME' FROM THE PROPERTY, BU T IF THE PROPERTY IS USED AS 'STOCK - IN - TRADE', THEN THE SAID PROPERTY WOULD BECOME OR PARTAKE THE CHARACTER OF THE STOCK, AND ANY INCOME DERIVED FROM THE STOCK, WOULD BE 'INCOME' FROM THE BUSINESS, AND NOT INCOME FROM THE PROPERTY. IF THE BUSINESS OF THE A SSESSEE IS TO CONSTRUCT THE PROPERTY AND SELL IT OR TO CONSTRUCT AND LET OUT THE SAME, THEN THAT WOULD BE THE 'BUSINESS' AND THE BUSINESS STOCKS, WHICH MAY INCLUDE MOVABLE AND IMMOVABLE, WOULD BE TAKEN TO BE 'STOCK - IN - TRADE', AND ANY INCOME DERIVED FROM SU CH STOCKS CANNOT BE TERMED AS 'INCOME FROM PROPERTY'. EVEN OTHERWISE, IT IS TO BE SEEN THAT ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 10 THERE WAS DISTINCTION BETWEEN THE 'INCOME FROM BUSINESS' AND 'INCOME FROM PROPERTY' ON ONE SIDE, AND 'ANY INCOME FROM OTHER SOURCES'. THE TRIBUNAL, IN OUR CONSIDERE D OPINION, WAS ABSOLUTELY UNJUSTIFIED IN COMPARING THE RENTAL INCOME WITH THE DIVIDEND INCOME ON THE SHARES OR INTEREST INCOME ON THE DEPOSITS. EVEN OTHERWISE, THIS QUESTION WAS NOT RAISED BEFORE THE SUBORDINATE TRIBUNALS AND, ALL OF SUDDEN, THE TRIBUNAL S TARTED APPLYING THE ANALOGY. 9. FROM THE STATEMENT OF THE ASSESSEE, IT WOULD CLEARLY APPEAR THAT IT WAS TREATING THE PROPERTY AS 'STOCK - IN - TRADE'. NOT ONLY THIS, IT WILL ALSO BE CLEAR FROM THE RECORDS THAT, EXCEPT FOR THE GROUND FLOOR, WHICH HAS BEEN LET O UT BY THE ASSESSEE, ALL OTHER PORTIONS OF THE PROPERTY CONSTRUCTED HAVE BEEN SOLD OUT. IF THAT BE SO, THE PROPERTY, RIGHT FROM THE BEGINNING WAS A 'STOCK - IN - TRADE'. 9. SIMILARLY THE COORDINATE BENCH HAS CONSIDERED SIMILAR ISSUE AS TO WHETHER THE UNSOLD PR OPERTY WHICH IS HELD AS STOCK IN TRADE BY THE ASSESSEE CAN BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY BY NOTIONALLY COMPUTING THE ANNUAL LETTING VALUE FROM SUCH PROPERTY AND THE COORDINATE BENCH CONSIDERING THE DECISION OF THE HON'BLE DELHI HI GH COURT IN THE CASE OF ANSAL HOUSING FINANCE & LEASING CO. LTD. (SUPRA) WHICH THE AO RELIED UPON AND THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CHENNAI PROPERTIES & INVESTMENTS LTD. VS. CIT REPORTED IN 373 ITR 673, HELD THAT UNSOLD FLATS WHI CH ARE IN STOCK IN TRADE SHOULD BE ASSESSED UNDER THE HEAD BUSINESS INCOME AND THERE IS NO JUSTIFICATION IN ESTIMATING RENTAL INCOME FROM THOSE FLATS AND NOTIONALLY COMPUTING ANNUAL LETTING VALUE UNDER SECTION 23 OF THE ACT. WHILE HOLDING SO THE COORDINA TE BENCH OBSERVED AS UNDER: - 3. THE LD. AR PLACED THE ORDER OF BOMBAY TRIBUNAL IN THE CASE OF M/S PERFECT SCALE COMPANY PVT. LTD., ITA NOS.3228 TO 3234/MUM/2013, ORDER DATED 6 - 9 - 2013, WHEREIN IT WAS HELD THAT IN RESPECT OF ASSETS HELD AS BUSINESS, INCOME FROM THE SAME IS NOT ASSESSABLE U/S.23(1) OF THE IT ACT. 4. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF ANSAL HOUSING FINANCE & LEASING CO. LTD., 354 ITR 180 (DELHI) IN SUPPORT OF THE PROPOSITION THAT EVEN IN R ESPECT OF UNSOLD FLATS BY THE DEVELOPER IS LIABLE TO BE TAXED AS INCOME FROM HOUSE PROPERTY. 5. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE UNDER CONSIDERATION HAS BEEN RESTORED BY THE CIT(A) TO THE FILE OF AO TO COMPUTE THE ANNU AL VALUE. RECENTLY THE HONBLE SUPREME COURT IN THE CASE OF M/S CHENNAI PROPERTIES & INVESTMENTS LTD. VS. CIT, REPORTED IN (2015) 42 SCD 651, VIDE JUDGMENT DATED 9 - 4 - 2015 HAS HELD THAT WHERE ASSESSEE COMPANY ENGAGED IN THE ACTIVITY OF LETTING OUT PROPERTIE S AND THE RENTAL INCOME RECEIVED WAS SHOWN AS BUSINESS INCOME, THE ACTION OF AO TREATING THE RENTAL INCOME AS INCOME FROM HOUSE PROPERTY IN PLACE OF INCOME FROM BUSINESS SHOWN BY THE ASSESSEE WAS HELD TO BE NOT JUSTIFIED. THE HONBLE ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 11 SUPREME COURT HELD THA T SINCE THE ASSESSEE COMPANYS MAIN OBJECT, IS TO ACQUIRE AND HELD PROPERTIES AND TO LET OUT THESE PROPERTIES, THE INCOME EARNED BY LETTING OUT THESE PROPERTIES IS MAIN OBJECTIVE OF THE COMPANY, THEREFORE, RENT RECEIVED FROM THE LETTING OUT OF THE PROPERTI ES IS ASSESSABLE AS INCOME FROM BUSINESS. ON THE VERY SAME ANALOGY IN THE INSTANT CASE, ASSESSEE IS ENGAGED IN BUSINESS OF CONSTRUCTION AND DEVELOPMENT, WHICH IS MAIN OBJECT OF THE ASSESSEE COMPANY. THE THREE FLATS WHICH COULD NOT BE SOLD AT THE END OF THE YEAR WAS SHOWN AS STOCK - IN - TRADE. ESTIMATING RENTAL INCOME BY THE AO FOR THESE THREE FLATS AS INCOME FROM HOUSE PROPERTY WAS NOT JUSTIFIED INSOFAR AS THESE FLATS WERE NEITHER GIVEN ON RENT NOR THE ASSESSEE HAS INTENTION TO EARN RENT BY LETTING OUT THE FLA TS. THE FLATS NOT SOLD WAS ITS STOCK - IN - TRADE AND INCOME ARISING ON ITS SALE IS LIABLE TO BE TAXED AS BUSINESS INCOME. ACCORDINGLY, WE DO NOT FIND ANY JUSTIFICATION IN THE ORDER OF AO FOR ESTIMATING RENTAL INCOME FROM THESE VACANT FLATS U/S.23 WHICH IS ASS ESSEES STOCK IN TRADE AS AT THE END OF THE YEAR. ACCORDINGLY, THE AO IS DIRECTED TO DELETE THE ADDITION MADE BY ESTIMATING LETTING VALUE OF THE FLATS U/S.23 OF THE I.T.ACT. 10. IN THE CASE ON HAND BEFORE US IT IS AN UNDISPUTED FACT THAT BOTH ASSESSEES HA VE TREATED THE UNSOLD FLATS AS STOCK IN TRADE IN THE BOOKS OF ACCOUNT AND THE FLATS SOLD BY THEM WERE ASSESSED UNDER THE HEAD INCOME FROM BUSINESS. THUS, RESPECTFULLY FOLLOWING THE ABOVE SAID DECISIONS WE HOLD THAT THE UNSOLD FLATS WHICH ARE STOCK IN TRA DE WHEN THEY WERE SOLD THEY ARE ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS WHEN THEY ARE SOLD AND THEREFORE THE AO IS NOT CORRECT IN BRINGING TO TAX NOTIONAL ANNUAL LETTING VALUE IN RESPECT OF THOSE UNSOLD FLATS UNDER THE HEAD INCOME FROM HOUSE PROP ERTY. THUS, WE DIRECT THE AO TO DELETE THE ADDITION MADE UNDER SECTION 23 OF THE ACT AS INCOME FROM HOUSE PROPERTY. 7 . IN THE CASE OF TITLED AS M/S. C.R. DEVELOPMENTS P. LTD. VS. JCIT . THE RELEVANT PARA IN 5 IS HEREBY REPRODUCED AS UNDER.: - 5. WE HAVE C ONSIDERED RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE UNDER CONSIDERATION HAS BEEN RESTORED BY THE CIT(A) TO THE FILE OF AO TO COMPUTE THE ANNUAL VALUE. RECENTLY THE HONBLE SUPREME COURT IN THE CASE OF M/S CHENNAI PROPERTIES & INVESTMENTS LTD. VS. CIT, REPORTED IN (2015) 42 SCD 651, VIDE JUDGMENT DATED 9 - 4 - 2015 HAS HELD THAT WHERE ASSESSEE COMPANY ENGAGED IN THE ACTIVITY OF LETTING OUT PROPERTIES AND THE RENTAL INCOME RECEIVED WAS SHOWN AS BUSINESS INCOME, THE ACTION OF AO TREATING THE RENTAL INCOM E AS INCOME FROM HOUSE PROPERTY IN PLACE OF INCOME FROM BUSINESS SHOWN BY THE ASSESSEE WAS HELD TO BE NOT ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 12 JUSTIFIED. THE HONBLE SUPREME COURT HELD THAT SINCE THE ASSESSEE COMPANYS MAIN OBJECT, IS TO ACQUIRE AND HELD PROPERTIES AND TO LET OUT THESE PROPER TIES, THE INCOME EARNED BY LETTING OUT THESE PROPERTIES IS MAIN OBJECTIVE OF THE COMPANY, THEREFORE, RENT RECEIVED FROM THE LETTING OUT OF THE PROPERTIES IS ASSESSABLE AS INCOME FROM BUSINESS. ON THE VERY SAME ANALOGY IN THE INSTANT CASE, ASSESSEE IS ENGAG ED IN BUSINESS OF CONSTRUCTION AND DEVELOPMENT, WHICH IS MAIN OBJECT OF THE ASSESSEE COMPANY. THE THREE FLATS WHICH COULD NOT BE SOLD AT THE END OF THE YEAR WAS SHOWN AS STOCK - IN - TRADE. ESTIMATING RENTAL INCOME BY THE AO FOR THESE THREE FLATS AS INCOME FRO M HOUSE PROPERTY WAS NOT JUSTIFIED INSOFAR AS THESE FLATS WERE NEITHER GIVEN ON RENT NOR THE ASSESSEE HAS INTENTION TO EARN RENT BY LETTING OUT THE FLATS. THE FLATS NOT SOLD WAS ITS STOCK - IN - TRADE AND INCOME ARISING ON ITS SALE IS LIABLE TO BE TAXED AS BUS INESS INCOME. ACCORDINGLY, WE DO NOT FIND ANY JUSTIFICATION IN THE ORDER OF AO FOR ESTIMATING RENTAL INCOME FROM THESE VACANT FLATS U/S.23 WHICH IS ASSESSEES STOCK IN TRADE AS AT THE END OF THE YEAR. ACCORDINGLY, THE AO IS DIRECTED TO DELETE THE ADDITION MADE BY ESTIMATING LETTING VALUE OF THE FLATS U/S.23 OF THE I.T.ACT. 8 . IN THE FACTUAL POSITION OF THE PRESENT CASE IS QUITE SIMILAR TO THE FACTS OF THE CASE MENTIONED ABOVE. I N VIEW OF THE LAW RELIED UPON THE LAW REPRESENTATIVE OF THE ASSESSEE I.E. M/S. RUNWAL CONSTRUCTIONS VS. ACIT AND M/S. C.R. DEVELOPMENTS P. LTD. VS. JCIT (SUPRA) , WE ARE OF THE VIEW THAT THE FINDING OF THE CIT(A) ON THIS ISSUE IS WRONG AGAINST LAW AND FACTS WHEREAS THE CASE OF THE ASSESSEE HAS DULY BEEN COVERED BY THE LAW MENTIONED AB OVE, THEREFORE, BY HONORING THE ORDERS MENTIONED ABOVE. WE DELETED THE ADDITION RAISED BY ASSESSEE ON ACCOUNT OF NOTIONAL INCOME OF VACANT FLATS. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ADDITIONAL GROUND ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 13 9 . UNDER THIS GROUND THE ASSESSEE HAS CHALLENGED THE ADDITION TO NET PROFIT AS ON PROFIT AND LOSS ACCOUNT WHILE COMPUTING BOOK PROFIT U/S 115JB OF THE ACT BEING DISALLOWED U/S 14A R.W. RULE 8D OF THE ACT OF RS.20,06,815/ - . THE LD. REPRESENTATIVE OF THE ASSESSEE HA S ARGUED THAT THE ADJUSTMENT OF AMOUNT U/S 14A R.W. RULE 8D OF THE ACT IS NOT REQUIRED TO BE MADE IN THE NET PROFIT IN THE PROFIT AND LOSS ACCOUNT WHILE COMPUTING OF BOOKS PROFIT U/S 115JB OF THE ACT BEING DISALLOWED U/S 14A R.W. RULE 8D OF THE ACT. THE LD . REPRESENTATIVE OF THE ASSESSEE HAS PLACED RELIANCE UPON THE LAW SETTLED IN L&T FINANCE LTD. V. DCIT (2018) 62 ITR (TRIB) 298 MUMBAI. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE REVENUE HAS REFUTED THE SAID CONTENTION. BEFORE GOING FURTHER, WE DEEMED IT NECESSARY TO ADVERT THE FINDING OF THE HONBLE ITAT IN THE CASE OF TITLED AS L&T FINANCE LTD. V. DCIT (2018) 62 ITR (TRIB) 298 MUMBAI. THE RELEVANT PARA IS 5.4 WHICH IS HEREBY REPRODUCED AS UNDER.: - 5.4 GROUND NUMBERS 4 TO 6 ARE RELATED WITH DISALLOWANCE U/S 14A. GROUND NO. 6 CONTESTS ADJUSTMENT OF 14A DISALLOWANCE AGAINST BOOK PROFITS FOR THE PURPOSE OF COMPUTATION OF MINIMUM ALTERNATIVE TAX [MAT] U/S 115JB. SO FAR AS THE ADJUSTMENT OF DISALLOWANCE U/S 14A IN COMPUTATION OF BOOK PROFIT U/S 1 15JB IS CONCERNED, WE FIND THAT THE MATTER STOOD SQUARELY IN ASSESSEE'S FAVOUR BY THE DECISION OF DELHI TRIBUNAL (SPECIAL BENCH) RENDERED IN ACIT VS. VIREET INVESTMENT (P.) LTD. [82 TAXMANN.COM 415]. ITA NOS.3980 - 3982 &4459/MUM/2013 L & T FINANCE LIMITED A SSESSMENT YEARS 2005 - 06 TO 2007 - 2008 UPON PERUSAL OF THE SAME, WE FIND THAT SPECIAL BENCH, AFTER CONSIDERING TWO CONTRARY DECISION OF HON'BLE DELHI HIGH COURT TITLED AS CIT VS. GOETZE (INDIA) LTD. [2014 361 ITR 505] & PCIT VS. BHUSHAN STEEL LTD. ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 14 [ITA 593/2 015 DATED 29/09/2015], TOOK THE VIEW FAVORABLE TO THE ASSESSEE IN TERMS OF RATIO OF DECISION OF HON'BLE SUPREME COURT RENDERED IN CIT VS. VEGETABLE PRODUCTS LIMITED [1973 88 ITR 192]. THE DECISION IN PCIT VS. BHUSHAN STEEL LTD., IN TURN, PLACED RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT RENDERED IN APOLLO TYRES LTD. VS. CIT [255 ITR 273] WHICH HELD THAT THE ASSESSING OFFICER DID NOT HAVE THE JURISDICTION TO GO BEHIND THE NET PROFIT SHOWN IN THE PROFIT & LOSS ACCOUNT EXCEPT TO THE EXTENT PROVIDED IN E XPLANATION TO SECTION 115J . SIMILAR VIEW HAS BEEN EXPRESSED BY OUR JURISDICTIONAL BOMBAY HIGH COURT RENDERED IN CIT VS. JSW ENERGY LIMITED [2015 60 TAXMANN.COM 303], CIT V. ESSAR TELEHOLDINGS LTD. [ITA NO . 438 OF 2012, DATED 07/08/2014] & CIT VS. BENGAL FINANCE & INVESTMENTS PVT. LIMITED [ITA NO. 337 OF 2013 DATED 10/02/2015]. THEREFORE, RESPECTFULLY FOLLOWING THE CATENA OF JUDGMENT IN ASSESSEE'S FAVOUR , WE, AT THE OUTSET, HOLD THAT ADJUSTMENT OF DISALLOWANCE U/S 14A WAS NOT REQUIRED TO BE MADE IN BOOK PROFITS FOR THE PURPOSE OF SECTION 115JB . RESULTANTLY, GROUND NO. 6 STANDS ALLOWED. 10 . IN VIEW OF THE LAW RELIED BY THE LD. REPRESENTATIVE OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE NO ADJUSTMENT U/S 14A R.W. RULE 8D OF THE ACT IS REQUIRED WHILE ASSESSING BOOK PROFIT IN VIEW OF THE P ROVISION U/S 115JB OF THE ACT EX CEPT TO THE EXTENT OF EXP LANATION U/S 115JB OF THE ACT. ACCORDINGLY, WE ALLOWED THE CLAIM OF THE ASSESSEE AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. 11 . IN RESULT, APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE ALLOWED . ORDER P RONOUNCED IN THE OPEN COURT ON 21. 12 . 2 018 . SD/ - SD/ - ( RAJESH KUMAR ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ITA. NO. 6332 /M/201 6 A.Y. 2012 - 13 15 MUMBAI; DATED : 21. 12. 2018 V IJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI