LEE & MUIRHEAD P. LTD, MUMBAI V. ADDL CIT RG 2(2), MUMBAI

ITA 6518/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3512 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 05-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 29-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: YOGESH KAMAL
• Keywords: Tax effect; Commercial expediency
• Section: 43B; 142(1); 14A; 37(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE SHRI AMIT SHUKLA, JM AND SHRI RAJESH KUMAR , AM ./ I.T.A. NO 7435 /MUM/201 1 ( / ASSESSMENT YEAR: 200 8 - 09 ) M/S. LEE & MURIHEAD PVT. LTD. ORICON HOUSE, 2 ND FLOOR 12 - K, DUBHASH MARG , FORT MUMBAI 400023. / VS. A DDL. COMMISSIONER OF INCOME TAX - RANGE 2(2) ROOM NO. 548, 5 TH FLOOR AAYAKAR BHAVA N MUMBAI 400020. ( / APPELLANT ) : ( / RESPONDENT ) ./ I.T.A. NO 7849/MUM/2011 ( / ASSESSMENT YEAR: 2008 - 09) A SSTT. C OMMISSIONER OF INCOME TAX (OSD) CIRCLE 2(2), ROOM NO. 54 5 , 5 TH FLOOR AAYAKAR BHAVAN MUMBAI 40 0020. / VS. M/S. LEE & MURIHEAD PVT. LTD. ORICON HOUSE, 2 ND FLOOR 12 - K, DUBHASH MARG FORT , MUMBAI 400023. ./ ./ PAN/GIR NO. AAACL0918M ( / APPELLANT ) : ( / RESPONDENT ) ./ I.T.A. NO 6518/MUM/2012 ( / ASSESSMENT YEAR: 200 9 - 10 ) M/S. LEE & MURIHEAD PVT. LTD. ORICON HOUSE, 2 ND FLOOR 12 - K, DUBHASH MARG , FORT MUMBAI 400023. / VS. A DDL. COMMISSIONER OF INCOME TAX - RANGE 2(2) ROOM NO. 548, 5 TH FLOOR AAYAKAR BHAVAN MUMBAI 400020. ( / APPELLANT ) : ( / RESPONDENT ) ./ PAN : AAACLO918M 2 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. / A SSESSEE BY : MS. AARTI VISSANJI / RE VENUE BY : SHRI YOGESH KAMAL / DATE OF HEARING : 15.02. 2016 / DATE OF PRONOUNCEMENT : 2 9 .02.2016 / O R D E R PER RAJESH KUMAR, A. M: TH ESE CROSS - APPEAL S ARE FILED BY THE RESPECTIVE PARTIES AND THE APPEAL BEARING NO.6518/ - MUM/2012 ARE DIRECTED AGAINST THE OR DER S OF COMMISSIONER OF IN COME TAX (APPEALS) - 5 , MUMBAI (HEREINAFTER CALLED AS THE C I T (A)) FOR ASSESSMENT YEAR S 200 8 - 09 AND 2009 - 10 RESPECTIVELY. SINCE THESE APPEALS PERTAINS TO THE SAME ASSESSEE, THESE APPEALS ARE BEING DECIDED BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. WE WILL FIRST TAKE UP THE APPEAL OF THE ASSESSEE IN ITA NO 7435/M/2011 AY 2008 - 09 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE MADE U/S. 14A OF THE IN COME - TAX ACT 1961 OF RS. 20,12,208/ - . YOUR APPELLANTS SUBMIT THAT IN THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE DISALLOWANCE IS UNWARRANTED AND THE SAME OUGHT TO BE DELETED. WITHOUT PREJUDICE TO THE ABOVE YOUR APPELLANTS SUBMITS THAT THE DISA LLOWANCE OF RS. 20,12,208/ - IS EXCESSIVE AND OUGHT TO BE REDUCED SUBSTANTIALLY. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE U/S. 36(1)(VA) AMOUNTING TO RS. 3,64,975/ - . YOUR APPELLANTS SUBMIT THAT IN THE FACTS A ND CIRCUMSTANCES 3 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. OF THE CASE AND IN LAW, THE DISALLOWANCE IS UNWARRANTED AND THE SAME OUGHT TO BE DELETED. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO OF RS. 56,94,748/ - BEING SUNDRY BALANCES WRITTEN OFF. YOUR APPELLANTS SUBMIT THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ADDITION IS UNWARRANTED AND THE SAME OUGHT TO BE DELETED. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE MADE BY THE AO OF RS. 1,76,70,049/ - BEING LOSS ON ACCOUNT OF WRITE OFF OF RECEIVABLES. YOUR APPELLANTS SUBMIT THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE DISALLOWANCE IS UNWARRANTED AND THE SAME OUGHT TO BE ALLOWED EITHER AS BAD DEBT U/S. 36(1)(VI I) OR AS BUSINESS LOSS U/S. 37(1). 3 . THE FACTS IN BRIEF ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 31.03.2009 DECLARING AN INCOME OF RS.1 , 58,52,48,888/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES WERE ISSUED AND S ERVED UPON THE ASSESSEE U/S 143(2) AND 142(1) OF THE ACT. THE ASSESSMENT WAS FRAMED VIDE ORDER DATED 24.12.2010 PASSED U.S 143 ( 3) OF THE ACT AT RS. 161,81,12,620/ - BY MAKING VARIOUS ADDITIONS. 4 . THE ISSUE RAISED IN THE FIRST GROUND OF APPEAL IS AGAINST C ONFIRMATION OF ADDITION OF RS. 20,12,208/ - BY CIT(A) AS MAD E BY THE AO U/ S 14A OF THE ACT OUT OF WHICH RS. 5,50,586/ - WAS FOR THE INTEREST CHARGES AND REMAINING RS. 14,61, 622/ - WAS ON ACCOUNT OF INDIRECT EXPENSES @ 0.5% OF THE AVERAGE INVESTMENTS BY REJ ECTING THE CONTENTION OF THE ASSESSEE THAT THE SAID INVESTMENTS WHICH YIELDED EXEMPT DIVIDEND OF RS.4,34,99,267/ - WERE MADE OUT OF OWN FUNDS AND NOT OUT OF BORROWED FUNDS AND ALSO THAT NO EXPENSES WERE INCURRED IN RELATION TO THE SAID INVESTMENTS AS THE INVESTMENTS WERE MADE AND MANAGED BY PORTFOLIO MANAGEMENT COMPANIES WHO CHARGED 2% FROM THE MUTUAL FUNDS IN WHICH THE INVESTMENTS WERE MADE. THE AO FURTHER OBSERVED THAT IN THE CASE OF GODREJ AND BOYCE M GF 4 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. CO LTD THE PROVISIONS OF RULE 8D WH ERE HELD TO BE APPLICABLE FROM THE ASSESSMENT YEAR 2008 - 09. 4 . 1 . THE LD CIT(A) UPHELD THE ADDITIONS OF RS. 20,12,208/ - MADE U/S14A ON THE GROUND THAT THE APPLICATION OF SECTION 14A RULE 8D STANDS SETTLED BY THE DECISIONS IN THE CASE OF GODREJ AND BOYCE MFG CO LTD AN D THE AO HAD RIGHTLY INVOKED THE PROVISIONS OF SECTION 14A RULE 8D OF THE ACT. 4 .2. LD AR SUBMITTED BEFORE US THAT RULE 8D WAS WRONGLY INVOKED BY THE AO AND UPHELD BY THE CIT(A) FOR THE REASONS THAT THE ASSESSEE DID NOT INCUR ANY INTEREST OR INDIRECT EXPE NSES IN RELATION TO INVESTMENTS WHICH YIELDED EXEMPT DIVIDEND. SO FAR AS THE DISALLOWANCE OF INTEREST UNDER RULE 8D(2)(II) WAS CONCERNED THE LD COUNSEL SUBMITTED THAT THE ASSESSEE HAD NOT MADE ANY INVESTMENT OUT OF BORROWED FUNDS AND IT HAD ITS OWN SUFFIC IENT AND ADEQUATE FUNDS WHICH WERE RS. 58,23,39,972 / - AS ON 31.3.2008 AND RS. 40,30,74,356/ - AS ON 31.3.2007 INCLUDING RESERVES AND SURPLUS BY REFERRING TO THE BALANCE SHEET AT PAGE NO 13 OF THE PAPER BOOK. THE LD COUNSEL ALSO SUBMITTED THAT DURING THE Y EAR THE ASSESSEE SOLD ITS GENERAL CARGO DIVISION FOR A CONSIDERATION OF RS. 179.05 CR AND IT HAD SUFFICIENT FUNDS AVAILABLE FOR INVESTMENTS AND ALSO ARGUED THAT THESE FUNDS WERE TEMPORARILY HELD IN MF FOR BUSINESS CONSIDERATIONS WHERE THE TOTAL INVESTMENTS WER E TO THE TUNE OF RS, 45,3 8,51,492 / - AS ON 31.3.2008 AND RS. 13,10,21,919/ - ON THE CORRESPONDING DATE IN THE PRECEDING PREVIOUS YEAR. THE BORROWED FUNDS RS.88,43,158/ - WERE TAKEN FOR SPECIFIC PURPOSE AND USED ACCORDINGLY. THEREFORE THE INTEREST DI SALLOWANCE OF RS.5,50,586/ - BE DELETED. IN RESPECT OF REMAINING AMOUNT OF RS. 14,61,622/ - , THE LD COUNSEL SUBMITTED THAT IN THE SCHEDULE M PERTAINING TO ADMINISTRATIVE AND SELLING EXPENSES WHICH WERE RS. 14,91,12,604/ - AND PERSONNEL COS T IN SCHEDULE NO L OF RS. 12,47,94,407/ - WHICH WERE INCURRED FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE AS THE ASSESSEE WAS STILL CARRYING ON THE BUSINESS OF PROJECT 5 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. CARGO. THE LD COUNSEL BROUGHT TO OUR NOTICE THE THREE EXPENSES NAME LY RENT , RATES AND TAXES RS. 4,54,46,772/ - , LEGAL AND PROFESSIONAL CHARGES RS. 1,94,25,756/ - AND AMOUNT WRITTEN OFF RS. 1,76,70,049/ - TOTALING TO RS. 8,25,42,577/ - WHICH WERE NOT HAVING INDIRECT NEXUS WITH DIVIDEND INCOME. THE LD COUNSEL ULTIMATELY PRAYED THAT THE ADDITIONS OF RS. 20,12,208/ - BE DELETED. PER CONTRA LD . DR RELIED HEAVILY ON THE ORDERS OF AUTHORITIES BEL OW. 4 .3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORDS. WE FIND FROM THE RIVAL ARGUMENTS AND RECORDS BEFORE U S THAT THE ASSESSEE HA D SOLD DURING THE YEAR ITS GENERAL CARGO DIVISION FOR A CONSIDERATION OF RS. 179.05 CR . THE INVESTMENTS OF THE ASSESSEE AS ON 31.3.2008 WERE RS.45,38,51,492 / - AS ON 31.3.2008 VIS - - VIS RS. 13,10,21,919/ - ON THE CORR ESPONDING DATE IN THE PRECEDING PREVIOUS YEAR AS AGAINST THE OWN FUNDS AVAILABLE IN THE FORM OF SHARE CAPITAL AND RESERVES AND SURPLUS OF RS. 58,23,39,972 AS ON 31.3.2008 VIS - - VIS RS. 40,30,74,356/ - AS ON 31.3.2007 . IN OUR OPINION THE ASSESSEE HAD SUF FICIENT FUNDS AVAILABLE WITH IT TO FINANCE ITS INVESTMENTS AND THEREFORE IT CAN BE PRESUMED THAT IT HAD INVESTED ITS OWN FUNDS AND NOT BORROWED FUNDS WHICH WE HAVE SEEN THAT WERE TAKEN FOR SPECIFIC PURPOSE S AND USED ACCORDINGLY. THUS THE ADDITIONS OF RS. 5 ,50,586/ - MADE RULE 8D(2)(II) AS CONFIRMED BY CIT(A) IS ORDERED TO BE DELETED BY FOLLOWING THE RATIO LAID DOWN IN THE CASE OF CIT V/S RELIANCE UTILITIES AND POWER LTD (2009) 313 ITR 340 (BOM), AND CIT V/S HDFC BANK LTD. [2014] 366 ITR 505 (BOM) . IN RE SPECT OF RS. 14,61,622/ - , THE DISALLOWANCE UNDER RULE 8D(2)(III) WE FIND THAT THE INVESTMENTS WERE MADE IN THE MUTUAL FUNDS BY THE PORTFOLIO MANAGEMENT COMPANIES. FURTHER IN THE SCHEDULE M PERTAINING TO ADMINISTRATIVE AND SELLING EXPENSES THE TOTAL OF R S. 14,91,12,604/ - WERE CHARGED WHEREAS PERSONNEL COST IN SCHEDULE NO L RS. 12,47,94,407/ - WERE DEBITED. IN THE 6 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. SCHEDULE NO M WE FIND THAT RENT , RATES AND TAXES RS. 4,54,46,772/ - , LEGAL AND PROFESSIONAL CHARGES RS. 1,94,25,756/ - AND AMOUNT WRITTEN OFF RS . 1,76,70,049/ - TOTALING TO RS.8,25,42,577/ - WERE CHARGED AND WERE NOT HAVING INDIRECT NEXUS WITH DIVIDEND INCOME. WE THEREFORE FIND MERIT IN THE SUBMISSIONS OF THE LD COUNSEL THAT DISALLOWANCE AS MADE BY THE AO AND UPHELD BY CIT(A) IS EXCESSIVE AND UNREA SONABL E ON THE GROUND THAT THERE HARDLY ANY EXPENSES INCURRED FOR THE PROPOSE OF INVESTMENTS. WE ARE IN AGREEMENT WITH THE CIT(A) THAT RULE 8D IS APPLICABLE FROM AY 2008 - 09 BUT NOT BLINDLY WHEN THE ASSESSEE HAD HARDLY INCURRED ANY EXPENSES IN RELATION TO THE DIVIDEND EARNED AND THE SUBSTANTIAL INVESTMENTS WERE MADE TEMPORARILY IN ORDER TO PARK THE IDLE FUNDS I DEALLY. WE THEREFORE ALLOW RELIEF TO THE ASSESSEE TO THE EXTENT OF RS. 8 ,00,000/ - OUT OF RS. 14,61,622/ - . THUS THE ASSESSEE GETS RELIEF OF RS. 13 ,5 0,586 IN ALL OUT OF RS, 20,12,208/ - THEREBY SUSTAINING THE ADDITION OF RS. 6 ,61,622/ - . 4 .4 THE GROUND NO . 1 IS PARTLY ALLOWED. 5 . THE SECOND GROUND IS AGAINST THE CONFIRMATION OF ADDITIONS OF RS. 3,64,975/ - IN RESPECT OF LATE PAYMENT OF PF. T HE AO DISALLOWED THE PF FOR LATE PAYMENT BEYOND THE GRACE PERIOD ON THE BASIS OF TAX AUDIT REPORT BY REJECTING THE CONTENTION OF THE ASSESSEE THE ISSUE WAS NOT COVERED BY THE PROVISIONS OF SECTION 43B OF THE ACT BUT COVERED BY SECTION 2(24)(X) R.W.S 36(1 )(VA) OF THE ACT. THE ASSESSEE SUBMITTED THAT THE PROVIDENT FUND WAS PAID BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME AND WAS ADMISSIBLE. THE LD CIT(A) ALSO UPHELD THE ADDITIONS ON THE GROUND THAT THE PF SHOULD HAVE BEEN PAID WITHIN DUE DATE AS EXTE NDED BY GRACE PERIOD AND NOT BEYOND UNDER THE RELEVANT ACT GOVERNING THE PROVIDENT FUND SCHEME AND NOT U/ S 43B OF THE ACT. 7 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. 5 .1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORDS . WE FIND FROM THE RECORDS AND ARGUMENTS OF THE COUNSE LS THAT THE ASSESSEE HAD PAID THE PF BEYOND THE GRACE PERIOD AFTER THE DUE DATE UNDER THE RELEVANT ACT BUT WELL BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT. WE FIND MERIT IN THE SUBMISSION OF THE LD A R THAT THE ISSUE IS COVERE D IN ITS FAVOR BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS GHATGE PATIL TRANSPORT LTD 368 ITR749(BOMBAY ) IN WHICH IT HAS BEEN HELD THAT THE EMPLOYERS AS WELL AS THE EMPLOYEES CONTRIBUTION WERE SUBJECT TO THE PROVISIONS OF SECTION 43B AND THE ASSESSEE WAS ENTITLED TO THE DEDUCTION IN RESPECT THEREOF. WE THEREFORE RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN THE SAID DECISION, DELETE THE ADDITION OF RS. 3,64,975 / - AND AO IS DIRECTED ACCORDINGLY. 5 .2. THE GROUND NO 2 IS ALLOWED IN FAV OUR OF THE ASSESSEE. 6 . THE THIRD GROUND IS AGAINST THE CONFIRMATION OF ADDITIONS OF RS. 56,94,748/ - CIT(A) ON ACCOUNT OF BALANCE WRITTEN OFF DURING THE YEAR FOLLOWING SELLING OF GENERAL CARGO DIVISION. THE FACTS IN BRIEF ARE THAT THE ASS ESSEE HAD TAKEN TWO WAREHOUSES ON LEA SE AND LICENSE BASIS FROM M/ S PARAS C OMMERCIAL CENTRE PVT LTD BESIDE TAKING THREE WAREHOUSES FROM M/ S SYNERGY LOGISTICS PVT . LTD AND TWO FROM M/S BHAVE WAREHOUSING AND STORAGE PVT . LTD . UPON SALE OF THE GENERAL CA RGO DIV ISION BY THE ASSESSEE THE WAREHOUSES TAKEN FROM FORMER COMPANY M/ S PARAS C OMMERCIAL CENTRE PVT . LTD WERE NO MORE REQUIRED IN THE BUSINESS AND THEREFORE THE LEASE AND LICENSE AGREEMENT WAS PREMATURELY TERMINATED ON 31.10.2007 AND THE LICENSOR DEDUCT ED RS. 45,16,000/ - AS COMPENSATION OF PREMATURE TERMINATION OF LICENSE AGREEMENT WHEREAS THE WAREHOUSES TAKE N FROM M/S M/S SYNERGY LOGISTICS PVT . LTD AND BHAVE WAREHOUSING AND S TORAGE PVT . LTD WERE TRA NS FERRED ALONG WITH THE GENERAL CARGO DIVISION AS SLUM P SALE TO THE BUYER FOR THE UNEX PIRED PERIOD OF LEASE . THE ASSESSEE WROTE OF THE 8 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. ADVANCES OF RS. 56,94,748/ - INCLUDING RS. 45,16,000/ - DEDUCTED BY M/S PARAS COMMERCIAL CENTRE P LTD. 6 .1. THE LD AO DURING THE COURSE OF SCRUTINY PROCEEDINGS FOUND THAT THE A SSESSEE WROTE ADVANCES PAID TO VARIOUS LICENSORS IN RESPECT OF W AREHOUSES TAKEN ON RENT FOR GENERA L CARGO DIVISION WHICH WAS SOLD BY THE ASSESSEE DURING THE YEAR AND THE ASSETS WERE TRANSFERRED BY WAY OF SLUMP SALE BY THE ASSESSEE. THE AO HELD THAT ONCE TH E ASSETS INCLUDING WAREHOUSES WERE TRANSFERRED TO THE BUYERS ALONG WITH DEPOSITS AND SECURITIES AND ALSO TAKEN INTO ACCOUNT IN THE NET WORTH OF THE DIVISION SOLD THEN THE ASSESSEE WAS NOT IN ANY WAY CONNECTED WITH THE SAME AND THEREFORE CLAIM OF WRITE OFF OF RS. 56,94,748/ - WAS NOT SUSTAINABLE . THE AO REJECTED CONTENTION OF THE ASSESSEE THAT TWO WAREHOUSES WERE NOT TRANSFERRED TO THE BUYER AND WERE SURRENDERED TO THE LICENSOR VIDE TERMINATION DEED DATED 30.11.2010 . 6 .2. THE CIT(A) ALSO UP HELD THE ADDITIONS OF RS. 56,94,748/ - ON THE GROUND THAT THE ASSESSEE FAILED TO REBUT THE OBSERVATIONS AND FINDINGS OF THE AO. THE CIT(A) FURTHER HELD THAT SINCE THE ASSESSEE HAD SOLD ALL THE ASSETS PERTAINING TO GENERAL CARGO DIVISION AND THEREFORE ANY CL AIM MADE BY THE ASSESSEE AS SUCH U/S 37(1) COULD NOT BE WHOLLY AND EXCLUSIVELY FOR THE BUSINESS AND ONCE THE LEASE IN RESPECT OF THE THREE WAREHOUSES WERE TRANSFERRED TO THE PURCHASER, THE ENTIRE DEPOSITS AND RENT FOR THE UNEXPIRED PERIOD ALSO STAND S TRAN SFERRED IN SLUMP SALE TO PURCHASER AND THEREFORE THE CLAIM OF TH E ASSESSEE WAS WRONG AND RIGHTLY DISALLOWED BY THE AO. 6 .3. THE LD AR SUBMITTED BEFORE US THAT BOTH THE AO AS WELL AS THE CIT(A) DID NOT APPRECIATE THE REPLY FILED BY THE ASSESSEE VIDE LETTE R DATED 30.11.2010 CLARIFYING THE POSITIONS QUA THE TRANSFER OF WAREHOUSES TO THE PURCHASER AND WAREHOUSES FOR WHICH THE LEASE AND LICENSE AGREEMENTS WERE TERMINATED. THE ASSESSEE HAD TERMINATED THE LEASE AND LICENSE IN 9 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. RESPECT OF TWO WAREHOUSES TAKEN ON LEAVE AND LICENSE BASIS FROM M/S PARAS C OMMERCIAL CENTRE PVT . LTD WHO DEDUCTED RS. 45,16,000/ - AS COMPENSATION FOR PRE - MATURE TERMINATION ON 31.10.2007 WHEREAS THREE WAREHOUSES FROM M/S SYNERGY LOGISTICS PVT . LTD AND TWO FROM M/S BHAVE WAREHOUSING A ND STORAGE PVT . LTD WERE TRANSFERRED AS PART OF THE SLUMP SALE AND ALL THE DEPOSITS AND RENT FOR THE UNEXPIRED LEASE WERE ALSO TRANSFERRED AS PART OF NET WORT H ASSETS TRANSFERRED. T HE LD AR VEHEMENTLY SUBMITTED THAT T H E AO AND CIT(A) WITHOUT EVEN GOING TH OUGH THE LETTER FILED REPLYING THE VARIOUS QUERIES RAISED DURING THE SCRUTINY PROCEEDINGS CAME TO THE WRONG CONCLUSION THAT THREE WAREHOUSES WERE TRANSFERRED WHEREAS AS A MATTER OF FACT FIVE WAREHOUSES WERE TRANSFERRED TO THE PURCHASER AND TWO WAREHOU SES WERE SURRENDERED TO THE LICENSOR BY TERMINATING THE LEASE AND LICENSE DEED. IT WAS SUBMITTED THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION OF RS .45,16,000/ - DEDUCTED BY M/S PARAS COMMERCIAL CENTRE PVT . LTD AS COMPENSATION FOR PRE - MATURE TERMINATION OF LEASE ON 31.10.2007 ON THE GROUND OF COMMERCIAL EXPEDIENCY AND PRAYED THAT THE AO BE DIRECTED ACCORDINGLY. THE LD AR RELIED UPON THE DECISION CIT VS MICROSOFT CORPORATION OF INDIA (P) LTD (DEL) 220CTR410. 6 .4 THE LD DR ON THE OTHER HAND RELIED ON THE O RDERS OF AUTHORITIES BELOW. 6 . 5 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORDS AND FIND THAT THE ASSESSEE HAD TERMINATED THE LEASE AND LICENSE IN RESPECT OF TWO WAREHOUSES TAKEN FROM M/S PARAS COMMERCIAL CENTRE PVT LTD WHO DEDUCTED AS COMPENSATION FOR PRE - MATURE TERMINATION A SUM OF RS. 45,16,000/ - WHEREAS THE REMAINING FIVE WHAREHOUSES WERE TRANSFERRED AS PART OF SUMP SALE. WE FIND MERIT IN THE ARGUMENTS OF THE ASSESSEE THAT THE AMOUNT DEDUCTED BY THE LICENSOR ON PR E - MATURE TERMINATION IS ADMISSI BLE U/S 37(1) OF THE ACT AS WHOLLY AND EXCLUSIVELY FOR 10 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. THE PURPOSE OF BUSINESS. WE ALSO FIND THAT THE PROJECT CARGO DIVISION OF THE ASSESSEE CONTINUED AND THUS THE BUSINESS OF THE ASSESSEE WAS CARRYING ON WITH ONE DIVISION. E VEN ON THE GROUND TO COMMERCIAL EXPEDIENCY THE ASSESSEE IS ENTITLED TO DEDUCTION OF RS. 45,16,000/ - AS THE CONTINUANCE OF THE LEASE AND LICENSE WOULD ENTAIL ADDITIONAL EXPENSES. WE THEREFORE DIRECT THE AO TO ALLOW DEDUCTION OF RS. 45,16,000/ - OUT OF TOTAL CLAIM OF RS. 56,94,748 THUS SUSTAINING THE ADDITION TO THE EXTENT OF RS.11,78,748/ - . 6 .6 GROUND NO 3 IS PARTLY ALLOWED. 7 . THE ISSUE IN THE 4 TH GROUND OF APPEAL IS AGAINST THE CONFIRMATION OF ADDITION OF RS.1,76,70,049/ - BEING LOSS ON ACCOUNT OF WRI TE OFF OF RECEIVABLES UPON RE - ASSIGNMENT IN THE SLUMP SALE OF THE GENERAL CARGO DIVISION. THE FACTS IN BRIEF ARE THAT THE ASSESSEE SOLD ITS GENERAL CARGO DIVISION VIDE AGREEMENT DATED 04.04.2007 W.E.F. 01.05.2007. THUS DURING THE YEAR THE ACTIVITY OF GEN ERAL CARGO DIVISION WAS CARRIED ON FOR ONE MONTH AND REVENUES AND EXPENSES WERE DULY SHOWN IN THE PROFIT AND LOSS ACCOUNT AND THE NET PROFIT FROM THE SAID DIVISION FOR ONE MONTH WAS RS. 72,30,254 . THE PURCHASE PRICE OF THE GENERAL CARGO DIVISION WAS TO BE WORKED OUT AND DETERMINED IN TERMS OF CLAUSE 3 OF THE SALE AGREEMENT DATED 04.04.2007 ON THE BASIS OF ESTIMATED WORKING CAPITAL AND ESTIMATED NET DEBTS SUBJECT TO ADJUSTMENTS AS DEFINED UNDER THE HEAD ADJUSTMENTS TO PURCHASE PRICE IN THE DEFINITION CLAUSE AND IF ANY ADJUSTMENT WAS REQUIRED IN TERMS OF THE ABOVE CLAUSE , THE PURCHASER HAD THE OPTION TO RE - ASSIGN TO THE APPELLANT ANY PART OF THE ASSETS FORMING PART OF THE NET CURRENT ASSETS. THE PURCHASER AS PER THE SAID CLAUSE RE - ASSIGNED DEBTS FORMIN G PART OF THE CURRENT ASSETS TO THE ASSESSEE AND PURCHASE PRICE WAS REDUCED BY AN AMOUNT OF RS. 2,44,22,159.91 BEING THE DIFFERENCE BETWEEN THE ESTIMATED NET WORKING CAPITAL AND ESTIMATED NET DEBT AND ACTUAL NET WORKING CAPITAL AND NET DEBT TRANSFERRED TO THE PURCHASER . THE SAID DIFFERENCE WAS MAINLY AROSE BECAUSE 11 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. OF IRRECOVERABLE DEBTORS OF RS. 1,76,70,49/ - WHICH AFTER RE - ASSIGNMENT WERE ULTIMATELY WRITTEN OFF BY THE ASSESSEE DURING THE YEAR. 7 .1. THE AO UPON FINDING THAT THE ASSESSEE HAD WRITTEN OFF DEBTS AMOUNTING TO RS. 1,76,70,049/ - , ADDED THE SAID AMOUNT TO THE INCOME OF THE ASSESSEE BY REJECTING THE SAID REPLY DATED 30.12.2010 PARA (G) OF THE ASSESSEE FOR THE REASONS THAT ONCE THE ENTIRE DIVISION WAS SOLD AS SLUMP SALE AND THE DUE CONSIDERATIO N WAS PAID BY THE PURCHASER ON THE DATE OF SALE INCLUDING FOR DEBTORS THEN THE BENEFIT OF WRITE OFF COULD NOT BE ALLOWED TO THE ASSESSEE AS THE ASSESSEE HAD ALREADY CLAIMED THE SAID DEBTORS FROM SALES CONSIDERATION AND THE BENEFIT OF SUCH DEBTS WAS TAKEN WHILE COMPUTING THE LONG TERM CAPITAL GAIN. 7 .2. THE LD CIT(A) ALSO CONFIRMED THE ADDITION BY HOLDING THAT THE DEBTORS WERE TRANSFERRED TO PURCHASER IN SLUMP SALE AND THUS THE AO HAD RIGHTLY DISALLOWED THE WRITING OFF THE DEBTS AS THE PROVISIONS OF SECTI ON 36(1)(VII) R.W.S. 36(2) WERE NOT APPLICABLE. 7 .3. THE LD AR SUBMITTED VEHEMENTLY THAT THE AO AS WELL AS THE CIT(A) HAD NOT APPRECIATED THE FACTS OF THE CASE IN CORRECT PERSPECTIVE. THE LD COUNSEL DREW OUT ATTENTION TO CLAUSE 3 O F THE SALE AGREEMENT D ATED 04.04.2007 PLACED AT PAGE NO 61 OF THE PAPER BOOK WHICH PROVIDED THE MANNER IN WHICH THE PURCHASE PRICE WAS TO BE DETERMINED ON THE BASIS OF ESTIMATED WORKING CAPITAL AND ESTIMATED CURRENT ASSETS INCLUDING DEBTS SUBJECT TO ADJUSTMENTS IF ANY AS DEFINE D IN THE ADJUSTMENT TO PURCHASE PRICE WHICH WAS PLACED AT PAGE 55 OF THE PAPER BOOK . U NDER THE SAID ARRANGEMENTS THE PURCHASER HAD THE RIGHT TO RE - ASSIGN TO THE ASSESSEE ANY PART OF THE ASSETS WHICH WERE FORMING PART OF THE NET CURRENT ASSETS. LD COUNSE L SUBMITTED THAT UNDER THIS CLAUSE , THE PURCHASER M/S EXCEL RE - ASSIGNED BOOK DEBTS TO THE ASSESSEE BY REDUCING THE SAME FROM THE 12 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. PURCHASE PRICE TO THE TUNE OF RS. 2 ,44,22,159.91 OUT OF WHICH THE BOOKS DEBTS WERE RS. 1,76,70,049/ - WHICH WERE WRITTEN OFF DU RING THE YEAR LAWFULLY AND RIGHTFULLY U/S 36(1)(VI) OF THE ACT. IT WAS ALSO SUBMITTED BEFORE US THAT THE BUSINESS OF THE ASSESSEE CONTINUED WITH PROJECT CARGO SECTION WHEREAS THE GENERAL CARGO SECTION WAS PARTED WITH W.E.F. 01.05.2007 AND THE INCOME AND E XPENSES TILL 30.04.2007 WERE DULY SHOWN IN THE BOOKS OF THE ASSESSEE AND SO WAS THE NET PROFITS OF RS.72,30,254/ - .THE AO AS WELL CIT(A) OBSERVATION WAS WRONG AND UNFOUNDED FOR THE REASONS THAT BY ALLOWING THE WRITE OFF OF RS. 1,76,70,049/ - , THE ASSESSEE WO ULD BE GETTING DOUBLE BENEFIT. THE PURCHASER HAD REDUCED THE SAID AMOUNT FROM THE CONSIDERATION PAID TO THE ASSESSEE AND THEREFORE WHATEVER WAS GIVEN BACK UNDER THE ADJUSTMENTS TO PURCHASE PRICE CLAUSE HAD TO BE WRITTEN OFF AS THE SAME WAS NOT PART OF THE SLUMP SALE. FINALLY THE LD AR PRAYED FOR REVERSING THE ORDER OF LOWER AUTHORITIES ON THIS POINT AND ALLOWING THE CLAIM OF THE ASSESSEE BY RELYING ON DECISIONS IN THE CASE OF VEECUMSEES VS CIT(SC) 220 ITR 185 & CIT VS RAJNI INVESTMENTS PVT . LTD (MAD) 3 19 ITR 435 . 7 .4 THE LD DR PER CONTRA RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 7 . 5 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS A N D PERUSED THE MATERIALS ON RECORDS. DURING THE YEA R THE ASSESSEE SOLD ITS GENERAL CARGO DIVISION VIDE AGREEMENT DATED 04. 04.2007 W.E.F. 1.5.2007 WHEREAS IT CONTINUED TO OWN AND OPERATE ITS PROJECT DIVISION . A LL THE INCOME AND EXPENSES RELATING TO THE GENERAL CARGO DIVISIONS TILL 30.04.2007 WERE DULY ACCOUNTED FOR THEREB Y SHOWING A NET PROFIT OF RS. 72,30,254/ - .THE AGREEMEN T TRANSFERRING THE GENERAL CARGO DIVISION PROVIDED FOR DETERMINATION OF THE PURCHASE PRICE AS PER CLAUSE 3 OF THE AGREEMENT ( PL A CED AT PAGE 61 OF THE PAPER BOOK ) WAS SUBJECT TO ANY ADJUSTMENTS WHICH WAS PROV I DED IN THE ADJUSTMENT CLAUSE IN THE DEFINITIO N CLAUSE WHICH IS PLACED AT PAGE 55 OF THE PAPER 13 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. BOOK. FROM THE RECORDS BEFORE US WE FIND THAT THE PURCHASER M/S EXCEL RE - ASSIGNED SOME DEBTS WHICH WERE PART OF THE NET CURRENT ASSETS IN THE SLUMP SALE AND REDUCED THE PURCHASE PRICE ACCORDINGLY BY RS. 2,44 ,22,159.91. THE ASSESSEE WROTE OFF RS. 1,76,70,049/ - OUT OF THIS AMOUNT CLAIMING THE SAME TO BE ADMISSIBLE UNDER SECTION 36(1)(VI) OF THE ACT HOWEVER THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE ON THE GROUND THAT THE DEBTS WERE TRANSFERRED TO THE PU RCHASER AS PART OF THE NET CURRENT ASSETS UNDER SLUMP SALE AND THE ASSESSEE COULD NOT BE ALLOWED DOUBLE BENEFIT. EVEN THE CIT(A) UPHELD THE ADDITIONS ON THE SAME ANALOGY. WE FIND THAT THE BOTH AO AND CIT(A) HAD COMPLETELY IGNORED THE FACT THAT UNDER ADJU STMENT TO PURCHASE PRICE THE PURCHASER REASSIGNED SOME DEBTS AMOUNTING TO RS. 2,44,221,60/ - TO THE ASSESSEE AND ASSESSEE REDUCED THE SAME FROM THE PURCHASE PRICE WHICH IS CLEARLY MENTIONED IN PARA 7.1 OF THE ASSESSMENT ORDER. IN OUR VIEW THE FINDING OF AO AND THE CIT(A) THAT THE DEBTS WERE TRANSFERRED AS PART OF NET CURRENT ASSETS IN THE SLUMP SALE AND THE ASSESSEE WOULD GET DOUBLE BENEFIT IF ALLOWED DEDUCTION IN RESPECT OF WRITE OFF OF THE BOOK DEBTS WERE WRONG AND AGAINST THE FACTS OF THE CASE. THE AS SESSEE HAD RIGHTLY WRITTEN OFF THE DEBTS AND THE SAME W ERE ADMISSIBLE UNDER SECTION 36 ( 1)(VI) OF THE ACT. IN VIEW OF THE ABOVE FACTS , THE APPEAL OF THE ASSESSEE ON THIS GROUND IS ALLOWED AND THE AO IS DIRECTED ACCORDINGLY. 8 . THE GROUND NO . 4 IS ALLOWED . 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 10. NOW, WE WILL TAKE UP THE APPEAL BEARING I TA NO: - 7849/MUM/2011 BY THE REVENUE. 14 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. 1 1 . THE GROUNDS OF APPEAL TAKEN BY THE REVENUE ARE REPRODUCED BELOW: 1. THE ORDER OF THE CIT(A) IS OP POSED TO LAW AND FACTS OF THE CASE. 2. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION U/S. 40(A)(IA) IN CONNECTION WITH LEASED LINE CHARGES TO VSNL FOLLOWING ITAT MUMBAI JUDGEMENT IN THE CASE OF KO TAK SECURITIES LTD. R EPORTED IN 25 SOT 440 IGNORING THE FACT THAT THE FACT THAT THE SAME JUDGEMENT HAS BEEN REVERSED BY THE HONBLE BOMBAY HIGH COURT VIDE ITS ORDER DATED 25.10.2011 IN ITA/3111/2009. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT TH E TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO RESTORED. 11. 1 AT THE OUTSET THE LD. AR OF THE ASSESSEE POINTED OUT THAT THE TAX EFFECT IN THIS APPEAL IS BELOW RS.10.00 LAKHS AND FURTHER SUBMITTED THAT IN VIEW OF THE CBD T CIRCULAR NO.21/2015, DATED 10.12.2015 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, THE APPEAL IS NOT MAINTAINABLE AND BE DISMISSED. THE LD. DR ALSO AGREED TO THE SUBMISSION OF THE LD. AR. 1 1. 2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM THE RECORDS AVAILABLE BEFORE US THAT THE TAX INVOLVED IN THE DISPUTED ISSUE IS BELOW RS.10 LACS AND THEREFORE, I N VIEW OF THE CIRCULAR ISSUED BY CBDT BEARING NO.21/ 2015 DATED 10.12.2015 PRESCRIBING NEW MONETARY LIMIT OF RS.10.00 LAKHS FOR PREFERRING APPEAL AGAINST THE ORDERS PASSED BY LD CIT(A) BEFORE THE TRIBUNAL, THE REVENUE IS PRECLUDED FROM PURSUING THIS APPEAL BY THE REVENUE , AS THE SAID CIRCULAR HAS RETROSPEC TIVE EFFECT AND IS APPLICABLE TO THE EXISTING APPEALS OF REVENUE. ACCORDINGLY, WE DISMISS THE SAME. 11. 3 CONSIDERING THE ABOVE, THE APPEAL FILED BY THE REVENUE, IS THEREFORE DISMISSED. 15 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. 11. 4 IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. 12. NO W, WE WILL TAKE UP THE APPEAL BEARING ITA. NO: - 6518/MUM/2012 FILED BY THE ASSESSEE . 12.1 THE GROUNDS TAKEN BY THE ASSESSEE ARE AS UNDER : 1 THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE U/S. 14A AMOUNTING T O RS.24,63,205/ - WORKED OUT AS PER RUL E 8D. YOUR APPELLANTS SUBMIT THAT THE DISALLOWANCE IS UNWARRANTED AND THE SAME OUGHT TO BE DELET E D. WITHOUT PREJUDICE TO THE ABOVE, YOUR APPELLANTS SUBMIT THAT THE DISALLOWANCE IS EXCESSIVE AND OUGHT TO BE REDUCED SUBSTANTIALLY. 2. YOUR APPELLANTS FURTHE R RESERVE THE RIGHTS TO ADD, AMEND OR ALTER THE AFORESAID GROUNDS OF APPEAL AS THEY MAY THINK FIR BY THEMSELVES OR BY THEIR REPRESENTATIVES. 13. THE ONLY ISSUE RAISED IN THE APPEAL IS AGAINST THE CONFIRMATION OF DISALLOWANCE U/S. 14 A UNDER RULE 8D AMOUN TING TO RS. 24,63,205/ - . T HE FACT IN BRIEF ARE THAT THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME DECLARING AN INCOME OF RS.1,67,74,804/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES U/S. 143(2) AND 142(1) WERE DULY SERVED UPON THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO FOUND THAT THE ASSESSEE HAD RECEIVED INCOME BY WAY OF DIVIDEND OF RS. 2,01,81,125 / - AND CLAIMED THE SAME AS EXEMPT U/S. 10 OF THE ACT. THE AO ALSO FOUND THAT THE ASSESSEE HAD INVESTMENT S OF RS. 21,51,26,864/ - AS ON 23.03.2009 AND THEREFORE, AS THE ASS ESSEE HAD NOT DISALLOWED ANY EX PENSES RELATING TO DIVIDEND INCOME NOT FORMING THE PART OF TOTAL INCOME, AS PROVISION S OF SECTI O N 14A RULE 8D OF THE ACT WERE APPLICABLE AND ACC ORDINGLY WORKED OUT THE DISALLOWANCE U/S. 14A RULE 8D OF RS. 24,63,205/ - CONSISTI NG OF RS. 7,90,759/ - AND ON ACCOUNT OF INTEREST AND RS. 16,63,571/ - FOR INDIRECT EXPENSES BEING 0. 5% OF THE AVERAGE INVESTMENT AND ADDED THE SAME TO INCOME OF THE ASSESSEE. AG GRIEVED BY THE ORDER OF AO , THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) , 16 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. WHICH WAS DI S MISSED BY THE CIT(A) ON THE GROUND THAT IDENTICAL ISSUE HAD BEEN DECIDED IN THE AY 2008 - 09 BY HIS PREDECESSOR CIT(A) IN THE CASE OF THE ASSESSEE ITSELF. 13. 1 WE HAVE THE RIVAL SUBMISSION AND PERUSED THE MATERIALS ON RECORDS. THE LD CIT(A) HAD UPHELD THE ADDITIONS FOR THE REASONS THAT T H E IDENTICAL ISSUE WAS DECIDED AGAINST THE ASSESSEE IN THE AY 2008 - 09 BY THE PREDECESSOR CIT(A). WE HAVE ALREADY DECIDED THE APPEAL OF THE ASSESSEE IN ITA NO 7435/M/2011 AY 2008 - 09 PARTLY IN FAVOUR OF THE ASSESSEE. THE FACTS IN THE PRESENT APPEAL ARE IDENTICAL TO FACTS IN ITA NO 7435/M/2011 AY 2008 - 09 ON THE ISSUE OF DISALLOWANCE U/S 14A RULE 8D . IN THE SAID APPEAL THE DISALLO WANCE OF INTEREST UNDER RULE 8D(2)(II) WAS DELETED ON THE GROUND TH AT THE ASSESSEE HAD SUFFICIENT OWN SOURCES TO MAKE THE INVESTMENTS AND THE LOAN FUNDS WERE FOR THE SPECIFIC PURPOSES. FACTS BEING IDENTICAL , WE ACCORDINGLY DELETE THE ADDITIONS OF RS. 7,9 0,759/ - FOR THE INTEREST MADE UNDER RULE 8D(2)(II) AND I N RESPECT OF THE REMAINING DISALLOWANCE OF RS. 16,63,571/ - UNDER RULE 80D(2)(III) , THE FACTS BEING SIMILAR , WE RESTRICT THE DISALLOWANCE TO RS. 6,53,571/ - BY ALLOWING A RELIEF OF RS. 10,00,000/ - TO THE ASSESSEE CONSIDERING THE SAME TO BE FAIR AND REASONABLE . 13. 2 IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED. 14. IN SUM AND SUBSTANCE, BOTH THE APPEALS OF THE ASSESSEE STAND PARTLY ALLOWED THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29TH FEBRUARY , 201 6 SD SD ( AMIT SHUKLA ) ( RAJESH KUMAR ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 29 . 02 .201 6 SRL/ SRPS. 17 ITA NO. 7435 /MUM/2011 AND OTHER TWO APPEALS. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, T R UE COPY / (DY./ASSTT. REGISTRAR ) , / ITAT, MUMBAI