VENUS RECORDS & TAPES P. LTD ( NOW KNOWN AS VENUE WORLDWIDE ENTERTAINMENT P. LTD), MUMBAI V. ADDL CIT 11(1), MUMBAI

ITA 6618/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9288 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 05-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 03-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A P SINGH
• Keywords: Proportionate interest; Revenue expenditure
• Section: 142(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI . . !'#$ , % &' BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI N.K. BILLAIYA, AM ./I.T.A. NOS. 6618 & 6617/MUM/2011 ( ( ( ( ( / ASSESSMENT YEARS :2007-08 & 2008-09 M/S. VENUS RECORDS & TAPES PVT. LTD., (NOW KNOWN AS VENUS WORLDWIDE ENTERTAINMENT PVT. LTD., 106/1, BLUE DIAMOND, OPP. SNDT COLLEGE, JUHU TARA ROAD, SANTACRUZ (WEST), MUMBAI-400 049 / VS. THE ADDL. CIT-11(1), AAYAKAR BHAVAN, MUMBAI-400 020 ./I.T.A. NOS. 7108 & 7109/MUM/2011 ( ( ( ( ( / ASSESSMENT YEARS :2007-08 & 2008-09 THE ADDL. CIT-11(1), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. VENUS RECORDS & TAPES PVT. LTD., (NOW KNOWN AS VENUS WORLDWIDE ENTERTAINMENT PVT. LTD., 106/1, BLUE DIAMOND, OPP. SNDT COLLEGE, JUHU TARA ROAD, SANTACRUZ (WEST), MUMBAI-400 049 ') % ./ *+ ./PAN/GIR NO. : AAACV 4561G ( ), /APPELLANT ) .. ( -.), / RESPONDENT ) ), / / ASSESSEET BY: SHRI DEEPAK TRALSHAWALA -.), 0 / / REVENUE BY : SHRI A.P. SINGH 0 12% / DATE OF HEARING :06.12.2012 34( 0 12% / DATE OF PRONOUNCEMENT : 12.12.2012 ITA NOS.6617 & 6618/M/11 & 7108 & 7109/M/11 2 &5 / O R D E R PER BENCH THIS SET OF CROSS APPEALS CONSISTING OF TWO APPEAL S FILED BY THE ASSESSEE AND THE TWO APPEALS FILED BY THE REVENUE A RE DIRECTED AGAINST THE VERY SAME ORDERS OF LD. CIT(A)-3 DT. 01.8.2011 FOR ASSESSMENT YEARS 2007-08 & 2008-09. AS GROUND NO.1 OF BOTH ASSESSE ES APPEALS INVOLVED COMMON ISSUES AND GROUND NO. 2 OF REVENUE S APPEAL IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEE S OWN CASE, THEREFORE, ALL THESE APPEALS ARE TAKEN UP TOGETHER AND DISPOSE OF THE SAME BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVIT Y. ITA NOS. 6617 & 6618/MUM/2011 2. GROUND NO. 1 OF BOTH ASSESSEES APPEALS RELATE T O THE DISALLOWANCE OF INTEREST ATTRIBUTABLE TO INTEREST FREE ADVANCES/ LOANS U/S. 36(I)(III) OF THE ACT. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE IS ENGAGED IN THE BUSINESS OF ACQUIRING AND CREATING RIGHTS IN AUDIO AND VIDEO TAPES. FOR THE YEAR UNDER CONSIDERATION, RETURN WAS FILED ON 12.11.2007 DECLARING A TOTAL INCOME AT RS. NIL AFTER SET OFF O F BROUGHT FORWARD LOSSES. THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AND ACCORDINGLY STATUTORY NOTICES U/S. 142(1) AND 143(2) WERE ISSUED AND SERV ED UPON THE ASSESSEE. IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE AS SESSEE HAS CLAIMED AN INTEREST EXPENSES OF RS. 2,99,19,828/-. THE ASSESS EE WAS ASKED TO EXPLAIN AS TO WHY PROPORTIONATE INTEREST EXPENSES OF RS. 2, 99,19,828/- DEBITED TO PROFIT AND LOSS ACCOUNT SHOULD NOT BE DISALLOWED AS THE ASSESSEE COMPANY ITA NOS.6617 & 6618/M/11 & 7108 & 7109/M/11 3 HAS GIVEN CERTAIN INTEREST FREE LOANS AND ADVANCES TO DIRECTORS/RELATIVES/FIRM IN WHICH DIRECTORS ARE INT ERESTED. THE ASSESSEE FILED A DETAILED REPLY JUSTIFYING WHY PROPORTIONATE DISALLOWANCE SHOULD NOT BE DONE. HOWEVER, THE AO WAS OF THE OPINION TH AT IN THE PRECEDING ASSESSMENT YEAR, THE AO HAS NOT ACCEPTED THE SIMILA R CONTENTION IN HIS ORDER DT. 17.12.2008. THE AO THUS WENT ON TO CALCUL ATE THE INTEREST TO BE DISALLOWED AS EXHIBITED ON PAGE 2 & 3 OF THE ASSESS MENT ORDER. THE FIGURES SO ARRIVED WAS TAKEN AT RS. 1,61,92,183/- W HICH WAS DISALLOWED U/S. 36(I)(III) AND ALSO AS PARTIALLY ATTRACTED U/ S. 40A(2) OF THE I.T. ACT. 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AGAINST THIS CALCULATION/DISALLOWANCE BY THE AO. IT WAS EXPLAINE D TO THE LD. CIT(A) THAT THE AO HAS MADE DISALLOWANCE OF INTEREST ON LO ANS AND ADVANCES TAKEN FROM BANK WHICH HAS BEEN CARRIED FORWARD FROM ASSESSMENT YEAR 2001-02 ONWARDS. IT WAS ALSO EXPLAINED BY THE ASSE SSEE THAT THE LOANS AND ADVANCES TO SISTER CONCERN/RELATIVES/FIR IN WHI CH DIRECTORS HAVE INTEREST ARE RS. RS. 4,91,46,854/- AND INTEREST FRE E DEPOSITS ARE AT RS. 1.55 CRORES. IT WAS FURTHER EXPLAINED THAT THE AMOUNT O UTSTANDING AS ON 31.3.2008 IS RS. 6.46 CRORES, TO SUBSTANTIATE ITS C LAIM THAT NO PROPORTIONAL DISALLOWANCE SHOULD BE DONE. THE ASSESSEE SUBMITTE D THAT THE COMPANY HAD SHARE CAPITAL AND INTEREST FREE ADVANCES AMOUN TING TO RS. 36.30 CRORES WHEREAS THE INTEREST FREE LOANS AND ADVANCES GIVEN AMOUNTED TO RS. 6.46 CRORES WHICH CLEARLY INDICATES THAT THE ASSESS EE HAD SUBSTANTIAL LARGE RESERVE OF SELF GENERATED INTEREST FREE FUNDS. THE ASSESSEE RELIED UPON THE DECISION OF THE JURISDICTIONAL HIGH COURT OF BOMBAY IN THE CASE OF RELIANCE UTILITIES POWER LTD., 313 ITR 340 (BOM). THE ASSESSEE FURTHER POINTED OUT TO THE LD. CIT(A) THAT IN ASSESSEES OW N CASE FOR A.Y. 2005- 06 AND 2006-07, THE LD. CIT(A) HAS GIVEN PARTIAL RE LIEF BY RESTRICTING DISALLOWANCE OF INTEREST EXPENDITURE ON LOAN AT RS. 3,72,40,857/- AS ITA NOS.6617 & 6618/M/11 & 7108 & 7109/M/11 4 AGAINST DISALLOWANCE OF INTEREST MADE ON LOAN AMOUN T OF RS. 4,59,54,419/- CLAIMED BY THE ASSESSEE. 4.1 AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS AND THE JUDICIAL DECISIONS RELIED UPON BY THE ASSESSEE AND FOLLOWING DECISION OF HIS PREDECESSOR IN OFFICE, THE LD. CIT(A) DELETED THE P ROPORTIONATE INTEREST ON ADVANCES AMOUNTING TO RS. 1.55 CRORES AND DIRECTED THE AO TO RECALCULATE THE DISALLOWABLE INTEREST ON LOANS AND ADVANCES OF RS. 4.91 CRORES. 5. THE REVENUE AND THE ASSESSEE BOTH ARE IN APPEAL BEFORE US AGAINST THIS FINDING OF THE LD. CIT(A). THE LD. COUNSEL FO R THE ASSESSEE RELIED UPON THE DECISION OF THE TRIBUNAL IN ASSESSEES OW N CASE FOR A.Y. 2005- 06 IN ITA NO. 4786/MUM/2010 AND A.Y. 2006-07 IN ITA NO. 3405/MUM/2011 AND POINTED OUT THAT IN BOTH THE YEAR S THE GRIEVANCE RAISED BY GROUND NO.1 IN ASSESSEES APPEALS AS WELL AS REVENUES APPEALS ARE IDENTICAL IN NATURE. DRAWING OUR ATTENTION TO PAGE-7, PARA-4 OF THE TRIBUNALS ORDER, THE COUNSEL POINTED OUT THAT THE ASSESSEE HAS GIVEN INTEREST FREE LOANS AND ADVANCES TO VARIOUS SISTER CONCERNS FROM A.Y. 1998-99 ONWARDS WHICH HAS BEEN CONSIDERED BY THE T RIBUNAL. THE LD. COUNSEL FURTHER POINTED OUT THAT IN THOSE YEARS, TH E TRIBUNAL HAS CONSIDERED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RELIANCE UTILITIES POWER LTD. (SUPRA) AND CONTEN DED THAT IN THAT CASE, THE HONBLE HIGH COURT REJECTED THE ARGUMENT OF THE REVENUE THAT SHAREHOLDERS FUNDS WERE UTILIZED FOR THE PURPOSE OF FIXED ASSETS. THEREAFTER THE HONBLE HIGH COURT WENT ON TO RELY U PON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF WOOLCOMB ERS OF INDIA LTD. 134 ITR 219 AND ALSO IN THE CASE OF EAST INDIA PHA RMACEUTICAL CO. LTD. VS CIT 224 ITR 624 (SC), THAT IF THERE ARE FUNDS AV AILABLE, BOTH INTEREST FREE AND OVERDRAFT/OR LOANS TAKEN, THEN PRESUMPTION WOULD ARISE THAT ITA NOS.6617 & 6618/M/11 & 7108 & 7109/M/11 5 INVESTMENT WOULD BE OUT OF INTEREST FREE FUNDS GENE RATED OR AVAILABLE WITH THE COMPANY, IF INTEREST FREE FUNDS WERE SUFFICIENT TO MEET THE INVESTMENT. THE TRIBUNAL WAS CONVINCED THAT THE ASSESSEE HAS FR EE RESERVES SUFFICIENT TO GIVE INTEREST FREE ADVANCES TO ITS SISTER CONCER N. THE TRIBUNAL WENT ON TO CONSIDER THE FACTS IN THE LIGHT OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RELIANCE U TILITIES POWER LTD. (SUPRA). THE TRIBUNAL CAME TO THE CONCLUSION THAT THE DISALLOWANCE TO THE EXTENT, IT HAS BEEN SUSTAINED BY THE LD. CIT(A) DOE S NOT HAVE ANY MERIT IN IT AND ACCORDINGLY DELETED THE DISALLOWANCE SUSTAIN ED BY THE LD. CIT(A) FOR BOTH THE YEARS (A.Y. 2005-06 AND 2006-07) AND A LLOWED ASSESSEES GROUND AND DISMISSED REVENUES GROUND. 5.1. IT WAS CONTENDED BY THE COUNSEL BEFORE US THAT FACTS AND CIRCUMSTANCES BEING THE SAME, THE DECISION OF THE H ONBLE JURISDICTIONAL HIGH COURT PERSISTS, THEREFORE, IN THE LIGHT OF THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE, DISALLOWANCE SUSTAINED BY T HE LD. CIT(A) SHOULD BE DELETED. 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSED TO THE SUBMISSION MADE BY THE LD. COUNSEL FOR THE A SSESSEE. IT IS THE SAY OF THE DR THAT THE INTEREST FREE RESERVES OF THE AS SESSEE ARE FULLY ABSORBED BY THE LOSSES SHOWN IN THE BALANCE SHEET AND IT IS INCORRECT TO SAY THAT THE ASSESSEE HAS SUFFICIENT INTEREST FREE OWN FUNDS. T O SUBSTANTIATE, THE LD. DR RELIED UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF GANJAM TRADING CO. (P) LTD. VS DCIT IN ITA NOS 3724/M/2005 , 932/MUM/2006 AND 1384 & 289/M/2007. THE LD. DR POINTED OUT THAT IN THIS CASE ALSO THERE WAS A NEGATIVE BALANCE IN THE PROFIT AND LOSS ACCOUNT AND THE TRIBUNAL WAS CONVINCED THAT THESE NEGATIVE BALANCE S WILL NEUTRALIZE OWN ITA NOS.6617 & 6618/M/11 & 7108 & 7109/M/11 6 FUNDS OF THE ASSESSEE. THEREFORE, IN THE LIGHT OF THIS DECISION OF THE TRIBUNAL, THE DISALLOWANCE MADE BY THE AO SHOULD BE CONFIRMED. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO N AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE JUDICIAL DE CISIONS RELIED UPON BY THE RIVAL PARTIES. IT IS THE SAY OF THE REVENUE TH AT THE ASSESSEES OWN CAPITAL HAVE BEEN FULLY NEUTRALIZED BY THE LOSSES B ROUGHT FORWARD FROM EARLIER YEARS AND, THEREFORE, THEIR REMAINS NO INTE REST FREE OWN FUNDS FROM WHICH THE ASSESSEE COULD HAVE LENT INTEREST FREE AD VANCES TO DIRECTORS AND OTHER SISTER CONCERNS. THE REVENUE MAY HAVE SOME SU BSTANCE IN ITS ARGUMENT BUT AT THE SAME TIME WE CANNOT IGNORE THE FINDINGS OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RE LIANCE UTILITIES POWER LTD. (SUPRA). WE FIND THAT THE HONBLE JURISDICTI ONAL HIGH COURT HAD REJECTED A SIMILAR PLEA TAKEN BY THE REVENUE THAT INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE HAVE BEEN FULLY UTILIZE D FOR THE PURPOSE OF FIXED ASSETS. WE FURTHER FIND THAT FOR THE YEAR UN DER CONSIDERATION, THE ASSESSEE HAS SHOWN A NET PROFIT OF RS. 4.11 CRORES AFTER TAX AND THE LOAN GIVEN TO ITS SISTER CONCERN IS TO THE TUNE OF RS. 4 .64 CRORES. IN THE LIGHT OF THESE FACTS, IT CAN BE SAFELY CONCLUDED THAT THE AS SESSEE HAS INTEREST FREE FUNDS GENERATED FROM ITS OWN SOURCES BY WHICH IT CO ULD HAVE LENT INTEREST FREE LOANS AND ADVANCES. 7.1 FURTHER IT HAS ALSO TO BE BORNE IN MIND THAT TH E ASSESSEE HAS BEEN GIVING LOANS AND ADVANCES TO THE DIRECTORS AND RELA TED CONCERNS SINCE A.Y. 1998-99. AS ON IDENTICAL ISSUES, THE TRIBUNAL HAS ALLOWED ASSESSEES APPEAL IN FAVOUR OF THE ASSESSEE IN THE IMMEDIATE PRECEDING YEAR AS POINTED OUT HEREIN ABOVE FOLLOWING THE ORDE R OF THE TRIBUNAL AND ALSO THAT OF THE JURISDICTIONAL HIGH COURT, WE HAVE NO HESITATION TO HOLD THAT THE DISALLOWANCE SUSTAINED BY THE LD. CIT(A) D OES NOT HAVE ANY ITA NOS.6617 & 6618/M/11 & 7108 & 7109/M/11 7 MERIT AND ACCORDINGLY THE SAME IS DELETED. SIMILAR LY FOR THE SAME REASONING, AS MENTIONED HEREINABOVE , THE GRIEVANCE OF THE REVENUE IS ALSO DISMISSED. 7.2 SO FAR AS IT RELATES TO APPLICABILITY OF SEC. 40A(2), IT IS FOUND THAT AO HAS MADE ONLY A PASSING REFERENCE OF SECTION 40A (2). IT HAS NOT BEEN DESCRIBED AS TO HOW SECTION 40A(2) WAS APPLICABLE. LD. DR ALSO COULD NOT STATE THAT HOW SECTION 40A(2) WAS APPLICABLE TO MAKE THE IMPUGNED DISALLOWANCE. THEREFORE, AFTER CONSIDERING THE ORD ER PASSED BY AUTHORITIES BELOW AND THE ARGUMENTS OF BOTH THE PARTIES, WE HOL D THAT DISALLOWANCE OF INTEREST CANNOT BE SUSTAINED EVEN ON THE APPLICATIO N OF SEC. 40A(2) OF THE ACT. THE ASSESSEE SUCCEEDS ON THIS GROUND AND REVENUE F AILS. 8. GROUND NO. 2 OF ASSESSEES APPEALS ARE ALSO ACC ORDINGLY ALLOWED. 9. GROUND NO. 2 OF BOTH REVENUES APPEALS RELATE TO ALLOWING THE CLAIM OF DEDUCTION OF RS. 1,90,67,357 FOR A.Y. 200 7-08 AND RS. 60,92,337/- FOR A.Y. 2008-09 ON ACCOUNT OF EXCESS AMORTIZATION OF COST OF RIGHTS PURCHASED. 10. AT THE VERY OUTSET, COUNSEL FOR THE ASSESSEE PO INTED OUT THAT SIMILAR GRIEVANCE WAS TAKEN BY THE REVENUE IN A.Y. 2005-06 AND 2006-07 BEFORE THE TRIBUNAL IN ITA NOS. 4786/M/2010 AND 3405/M/11 (SUPRA). THE TRIBUNAL HAS GIVEN ITS FINDING ON PAGE-22 PARA-10 O F ITS ORDER WHICH READS AS UNDER: WE HAVE CONSIDERED THE RIVAL SUBMISSIONS IN THE LI GHT OF THE MATERIAL PLACED BEFORE US. THE ASSESSEE HAS PURCHAS ED VIDEO RIGHTS / OTHER COPY RIGHTS IN THE ORDINARY COURSE OF ITS BUS INESS. 100% COST OF SUCH RIGHTS, IF ANY PART OF SUCH RIGHT IS SOLD DURI NG THE YEAR, ARE ITA NOS.6617 & 6618/M/11 & 7108 & 7109/M/11 8 CLAIMED AS REVENUE EXPENDITURE AS PER ACCOUNTING ME THOD CONSISTENTLY ADOPTED BY THE ASSESSEE. LD. CIT(A) HAS HELD THAT T HIS HAS BEEN DONE IN ACCORDANCE WITH THE METHOD ADOPTED BY THE ASSESS EE IN EARLIER YEARS AS WELL AS IN SUBSEQUENT YEARS. THIS FINDING OF FACT HAS NOT BEEN DISPUTED BY THE REVENUE BY BRINGING ANY MATERIAL ON RECORD TO SHOW THAT THESE FINDINGS OF LD. CIT(A) ARE INCORRECT. IT IS ALSO NOT THE CASE OF AO THAT ASSESSEE DEVIATED FROM THE METHOD EARLIER A DOPTED BY THE ASSESSEE WITH RESPECT TO CLAIMING SUCH EXPENDITURE. THE AO HIMSELF HAS OBSERVED THAT RULE 9B IS NOT APPLICABLE. THE AO BEING OF THE VIEW THAT AS ASSESSEE HAS NOT VALUED THE PENDENCY OF RIG HTS AS ITS CLOSING STOCK, THEREFORE, THE COST TO THE EXTENT IT COULD B E ALLOWED SHOULD BE RESTRICTED TO THE SALE RECEIPTS ON PARTIAL SALE OF TOTAL BUNDLE OF RIGHTS. THEREFORE, THE AO AFTER REDUCING THE REVENUE RECEIV ED BY THE ASSESSEE AGAINST THOSE RIGHTS HAS ADDED THE BALANCE AMOUNT T O THE INCOME OF THE ASSESSEE. AGAINST SUCH ACTION OF AO, LD. CIT(A) HAS OBSERVED THAT THIS ACTION OF AO HAS DISTURBED THE METHOD OF ACCOU NTING ADOPTED BY THE ASSESSEE IN EARLIER YEARS AS WELL AS SUBSEQUENT YEARS. THE CONSISTENT METHOD ADOPTED BY THE ASSESSEE HAS BEEN DISTURBED WITHOUT ADEQUATE REASONS AND WITHOUT GIVING ANY CRE DIT FOR ADJUSTMENT TO BE CARRIED OUT IN RESPECT OF OPENING AS WELL AS CLOSING STOCK OF SUCH RIGHTS. WE FIND FORCE IN THE OBSERVATION OF LD. CIT (A) THAT WITHOUT PROPERLY VALUING THE OPENING AS WELL AS CLOSING STO CK OF THE ASSESSEE, THE AO COULD NOT ADOPT SUCH COURSE OF ACTION. THE P ORTION OF BUNDLE OF RIGHTS WHICH WERE STANDING ON 1ST DAY OF THE RELEVA NT ACCOUNTING YEAR HAS NOT BEEN TAKEN INTO CONSIDERATION, SIMILARLY CL OSING STOCK HAS NOT BEEN VALUED PROBABLY ON ACCOUNT OF DIFFICULTY TO BE FACED IN THIS RESPECT. IF ASSESSEE WAS ADOPTING THE CONSISTENT MET HOD WHICH HAS NOT BEEN DISTURBED IN PAST, WITHOUT MAKING A PROPER ADJ USTMENT ON ACCOUNT OF IMPACT OF EARLIER YEARS AND WITHOUT STAT ING THE REASONS THAT AS TO WHY THE METHOD ADOPTED BY THE ASSESSEE WAS WR ONG AND CONTRARY TO THE ACCOUNTING PRINCIPLE, THE EXPENDITU RE COULD NOT BE RESTRICTED TO THE AMOUNT OF REVENUE EARNED BY THE A SSESSEE, AS SUCH ACTION OF THE AO IS CONTRARY TO THE AFOREMENTIONED DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. RAJENDRA PRASA D MOODY (SUPRA). THE AO HAS ACCEPTED THAT THESE ARE ALLOWABLE EXPEND ITURE BUT HE HAS RESTRICTED THE SAME TO THE EXTENT OF REVENUE EARNED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION. IT HAS BEEN HELD BY HO NBLE SUPREME COURT IN THE AFOREMENTIONED CASE THAT IF THE EXPEND ITURE HAS BEEN LAID OUT OR EXPENDED WHOLLY AND EXCLUSIVELY FOR THE PURP OSE OF MAKING OR EARNING INCOME, THE ALLOWABILITY THEREOF IS NOT DEP ENDENT UPON THE MAKING OR EARNING INCOME . AS THE FACTS AND THE CIRCUMSTANCES ARE THE SAME TH OUGH QUANTUM MAY DEFER, RESPECTFULLY FOLLOWING THE DECISION OF T HE TRIBUNAL, GROUND NO. 2 OF REVENUES APPEALS FOR BOTH THE YEARS ARE D ISMISSED. ITA NOS.6617 & 6618/M/11 & 7108 & 7109/M/11 9 11. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E ARE ALLOWED AND THE APPEALS FILED BY THE REVENUE ARE DISMISSED. 6 17 61 0 8 '91 *' 0 8 %6* 0 *1 :# ORDER PRONOUNCED IN THE OPEN COURT ON 12.12.2012 . &5 0 4( % 8 ;&7 12.12.2012 4 0 < SD/- SD/- (H.L. KARWA) (N.K. BILLAIYA) /PRESIDENT % &' / ACCOUNTANT MEMBER MUMBAI; ;& DATED 12.12.2012 . . ./ RJ , SR. PS &5 &5 &5 &5 0 00 0 -1! -1! -1! -1! =!(1 =!(1 =!(1 =!(1 / COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5. !?< -1 , , / DR, ITAT, MUMBAI 6. <@ / GUARD FILE. &5 &5 &5 &5 / BY ORDER, .!1 -1 //TRUE COPY// A AA A / : : : : * * * * (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI