VASANT RAJ PANDIT, MUMBAI V. ACIT 20(3), MUMBAI

ITA 664/MUM/2009

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6974 (ITAT-MUMBAI)
• Duration Of Justice: 12 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 02-02-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRITA RANJAN LD
• Assessee Lawyers: MADHUR AGGARWAL LD
• Keywords: Business income; Depreciation; Charitable institution; TDS
• Section: 143(3); 133(6); 80G; 13; 54; 37

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUM AR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO. 664/MUM/2009 ( / ASSESSMENT YEAR : 2003 - 04 ) SHRI VASANT RAJ PANDIT 1109 - 11 - 12, DALAMAL TOWER NARIMAN POINT , MUMBAI - 400 021 / VS. A CIT - 20(3) PIRAMAL CHAMBERS MUMBAI. ./ ./ PAN/GIR NO . ACVPP - 9751 - C ( / APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI MADHUR AGGARWAL - LD. AR REVENUE BY : MS. AMRITA RANJAN - LD.CIT - DR / DATE OF HEARING : 30/06/2021 / DATE OF PRONOUNCEMENT : 30/0 7 /2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. 1 AFORESAID APPEAL IS A RECALLED MATTER SINCE THE APPEAL WAS EARLIER DISPOSED - OFF VIDE ORDER DATED 29/10/2009 . HOWEVER, THE ORDER HAS BEEN RECALLED , AT ASSESSEES INSTANCE , VIDE MA NO.60/MUM/2010 ORDER DATED 20/04/2010. ACCORDINGLY, THE APPEAL HAS COME UP FOR FRESH HEARING BEFORE THIS BENCH. 1 .2 TH IS APPEAL BY ASSESSEE F OR ASSESSMENT YEAR (AY) 2003 - 04 CONTESTS THE ORDER OF LD. COMMISSIONER OF INCOME - TAX (APPEALS) - XXXII, 2 MUMBAI, {CI T(A) } , APPEAL NO. CIT(A) - XXXII/IT - 94/06 - 07 DATED 23/09/2008 ON FOLLOWING GROUNDS: - 1. A. THE LEARNED CIT(A) GROSSLY ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER IN REJECTING THE BOOKS OF ACCOUNTS OF THE APPELLANT AND DISALLOWING 50% OF INCENTIVE COMMISSION DEBITED TO THE PROFIT AND LOSS ACCOUNT OF THE APPELLANT THERE WAS A DIFFERENCE BETWEEN THE INCENTIVE EXPENDITURE CLAIMED BY APPELLANT AND INCENTIVE REPORTED BY RECIPIENT AND FURTHER FOR THE REASONS THAT ON THE GROUN D THAT THE INCENTIVES DONATED BY THE INDEPENDENT REPRESENTATIVES (IR(S) DID NOT ACCRUE TO THEM AND THEREFORE WERE NOT AN EXPENDITURE AT ALL. B. HE FAILED TO APPRECIATE THAT THE APPELLANT WAS FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING FOR INCENTIVE COMMI SSION WHEREAS THE RECIPIENTS OF THIS COMMISSION WOULD BE FOLLOWING THE CASH BASIS TO ACCOUNT THEIR INCOME AND HENCE THE DIFFERENCE BETWEEN THE EXPENDITURE ON ACCOUNT OF COMMISSION IN THE BOOKS OF APPELLANT FOLLOWING MERCANTILE - SYSTEM AND THE INCOME IN THE BOOKS OF RECIPIENTS ON CASH BASIS WAS INEVITABLE. 2.A. THE LEARNED CIT(A) GROSSLY ERRED IN DISALLOWING A LOSS OF RS. 89,87,444 / - COMPRISING OF 48,91,912 ON ACCOUNT OF BUSINESS LOSS AND 40,95,532 ON ACCOUNT OF DEPRECIATION INCURRED BY THE APPELLANT IN ITS INSURANCE BROKERAGE BUSINESS CARRIED OUT IN THE NAME OF JLI INSURANCE BROKERAGE COMPANY AND REJECTING THE BOOKS OF THE SAME. B. THE LEARNED CIT(A) GROSSLY ERRED IN INVOKING THE APPLICABILITY OF THE SC DECISION IN CASE OF MCDOWELL & CO. LTD 154 ITR 448 AND FURTHER HELD THAT THE SOLE MOTIVE OF M/S. JLI INSURANCE BROKERAGE COMPANY WAS TO BOOK LOSSES AND ADJUST THE SAME AGAINST PROFIT AS A PART OF TAX PLANNING. 1 . 3 THE ASSESSEE , VIDE LETTER DATED 0 6 /0 6 /201 4 HAS RAISED AN ADDITIONAL GROUND WHICH IS WITHOUT PRE JUDICE GROUND AND READ AS UNDER: - THE DONATION S MADE BY THE APPELLANT TO CHARITABLE INSTITUTIONS BE ALLOWED TO THE APPELLANT AS A DEDUCTION U/S.80G OF THE INCOME TAX ACT, 1961. SINCE ADDITIONAL GROUND IS ONLY AN ALTERNATIVE GROUND AND DOES NOT REQUIRE AP PRECIATION OF NEW FACTS , THE SAME IS ADMITTED AS GROUND NO.1(C). 2. AS EVIDENT FROM GROUNDS OF APPEAL, THE ASSESSEE IS AGGRIEVED BY CONFIRMATION OF INCENTIVE DISALLOWANCE TO THE EXTENT OF 50%. THE ASSESSEE IS ALSO AGGRIEVED BY DENIAL OF SET - OFF OF BUSINESS LOSS ES & DEPRECIATION CLAIM INCURRED IN ANOTHER PROPRIETORSHIP CONCERN NAMELY M/S JLI INSURANCE BROKERAGE COMPANY (JLI) . 3 3. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AND PERUSED RELEVANT MATERIAL ON RECORD INCLUDING DOCUMENTS PLACED IN THE PAPER - BOOK. OUR ADJUDICATION IN THE SUBJECT MATTER OF APPEAL WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. ASSESSMENT PROCEEDINGS 4. THE MATERIAL FACTS ARE THAT THE ASSESSEE BEING RESIDENT INDIVIDUAL STATED TO BE ENGAGED IN THE BUSINESS OF MARKETING OF MEDICAL PRODUCTS AND HERBAL COSMETICS UNDER PROPRIETARY CONCERN NAMELY M/S. FRONTIER TRADING CO. WAS ASSESSED FOR THE YEAR UNDER CONSIDERATION U/S 143(3) ON 27/03/2006 . THE SUBJECT MATTER OF THIS APPEAL IS DISALLOWANCE OF INCENTIVE PAYMENT AND DENIAL OF SET - OFF OF BUSINES S LOSS ES & DEPRECIATION CLAIM . THE SAME HAS BEEN DEALT WITH BY US IN SUCCEEDING PARAGRAPHS. DISALLOWANCE OF INCENTIVE PAYMENT 5.1 THE ASSESSEES PROPRIETORSHIP CONCERN I.E., M/S FRONTIER TRADING CO. OPERATED AS MULTI - LEVEL MARKETING CONCERN . DURING THE YEAR, I T TRADED IN IMPORTED MAGNETIC ACUPRESSURE TREATMENT INSTRUMENTS . THE MODUS OPERANDI OF THE BUSINESS WAS THAT THE ASSESSEE WOULD APPOINT INDEPENDENT REPRESENTATIVE S ( IN SHORT IR ) WHO WOULD MARKET AND SELL THE PRODUCTS OF THE ASSESSEE AGAINST INVEN TIVE / COMMISSION. THE IRS WOULD ALSO RECOMMEND OTHERS WHO WOULD , IN TURN , BE APPOINTED AS IR S AND SO ON. WHEN THE SUBSEQUENT APPOINTED IRS WOULD SELL PRODUCTS, THE IR WITH WHOSE REFERENCE THE SUBSEQUENT IR WAS APPOINTED , WOULD ALSO BE PAID COMMISSION OF A SPECIFIED AMOUNT. THE IR S HAD SALES TARGET AND IF THE SAID TARGETS ARE NOT ACHIEVED, THEN AS PER CLAUSE (3) OF THE TERMS AND CONDITION OF APPOINTMENT AGREEMENT OF THE IR, THE ASSESSEE HAD A RIGHT TO WITHHELD OR FORFEIT THE AMOUNT OF INCENTIVE / COMMISSION PAYABLE TO SUCH IRS. ALTHOUGH THE TERMS AND CONDITION OF THE APPOINTMENT 4 PROVIDE D FOR WITHHOLDING OR FORFEITURE OF THE COMMISSION AMOUNT, IT WAS THE UNDERSTANDING BETWEEN THE ASSESSEE AND THE IRS THAT IN CASE THE SALE TARGET S WERE NOT ACHIEVED THEN THE CO MMISSION WHICH WOULD HAVE ACCRUED TO THE SE IRS WOULD BE DONATED BY THE ASSESSEE ON THEIR BEHALF TO VARIOUS CHARITABLE INSTITUTIONS AS PER THE SCHEME FORMULATED BY THE ASSESSEE. 5.2 DURING TH IS YEAR, THE ASSESSEE PAID INCENTIVE / COMMISSION OF RS.5048.19 L ACS WHICH WAS APPROX. 1/3 RD OF TOTAL SALES ACHIEVED BY THE ASSESSEE . THE NUMBER OF IRS TO WHOM INCENTIVE / COMMISSION PAYMENT EXCEEDING RS.1 LACS WAS MADE, NUMBERED TO MORE THAN 910. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS REQUIRED TO FILE THE REQUISITE DETAILS AND DOCUMENTS, IN THIS REGARD. 5.3 T O CONFIRM THE SE PAYMENTS, LD. AO ISSUED NOTICE U /S 133(6) TO 54 OF SUCH IRS ON A SAMPLE BASIS . HOWEVER, O NLY 6 IRS RESPONDED AND FURNISHED THE DETAILS AS CALLED - FOR BY LD. AO. THE OUTCOME OF R EPLIES RECEIVED FROM THESE IRS HAS BEEN TABULATED ON PAGE - 3 OF THE ASSESSMENT ORDER. THE AMOUNT OF PAYMENT AS PER LIST FURNISHED BY THE ASSESSEE VIS - - VIS CONFIRMATION FILED BY THESE IRS WITH RESPECT TO PAYMENT / RECEIPTS ACCEPTED WAS AT VARIANCE AND ACC ORDINGLY, THE ASSESSEE WAS PUT TO SHOW - CAUSE NOTICE. THE ASSESSEE, IN REPLY, SUBMITTED THAT DIFFERENCE AROSE DUE TO DIFFERENCE IN METHOD OF ACCOUNTING BEING FOLLOWED BY THE TWO I.E. , THE ACCRUAL BASIS BY THE ASSESSEE AND CASH BASIS BY THE RECIPIENT IRS . THE ASSESSEE ALSO DEMANDED DETAILED STATEMENTS SO AS TO RECONCILE THE FIGURES. 5.4 ANOTHER ALLEGATION OF LD. AO WAS THAT THE ASSESSEE HAD VIOLATED THE PROVISIONS BY NOT DEDUCTING TAX AT SOURCE WHILE MAKING THESE PAYMENTS. THE INCENTIVE AMOUNT FORFEITED AND PAID AS DONATIONS BY THE 5 ASSESSEE WAS CLAIMED AS BUSINESS EXPEN DITURE U /S 37 (1) AS WELL AS DEDUCTION THEREOF WAS CLAIMED BY THE ASSESSEE ON THESE DONATIONS U/S 80G. THE ASSESSEE DID NOT ISSUE ANY TDS CERTIFICATE S TO THE IRS AND THE WHOLE TRANSACTIONS W AS BOGUS AND BEREFT OF ANY LEGAL SUPPORT. THEREFORE, THE PAYMENT THUS MADE COULD NOT BE ALLOWED AS DEDUCTION. 5.5 TO SUPPORT THE CONCLUSIONS, LD. AO REFERRED TO CORRESPONDENCE BETWEEN CIT(A) , THANE AND CIT (A) - 20 MUMBAI, IN THE CASE OF ONE IR NAMELY SHRI U MESH N. CHAVAN OF THANE W HO WAS IN APPEAL BEFORE CIT(A) , THANE CHALLENGING THE ASSESSMENT ORDER HOLDING THAT DONATION OF RS.4,99,500/ - FOR AY 1999 - 2000 AND RS. 8,33,362/ - FOR AY 2000 - 2001 WAS NOT HIS INCOME SINCE THE SAME WAS NOT DONATED ON HIS BEHALF. BEFO RE THE CIT(A) THANE, IT WAS THE CASE OF THE IR THAT THE FORCED DONATIONS WERE WITHOUT HIS CONSENT, WHICH STAND WAS TAKEN BY SHRI UMESH N. CHAVAN FOR THE FIRST TIME BEFORE THE CIT(A), THANE, AFTER A LONG DELAY OF FOUR YEARS. 5.6 ON THE BASIS OF ABOVE FACTS, LD. AO CONCLUDED THAT INCENTIVES WHICH WERE DONATED ON BEHALF OF THE IRS HAD NOT ACCRUED TO THE IRS AND THAT THE APPELLANT WAS DEBITING BOGUS INCENTIVES IN ITS BOOKS. HENCE, THE BOOKS OF ACCOUNTS OF THE ASSESSEE WERE REJECTED. FINALLY, BASED ON THE PROPOR TION OF INCENTIVES SHOWN BY SIX IRS IN THE CONFIRMATION RECEIVED U/S 133(6) OF THE ACT , LD. AO DISALLOWED 50% OF INCENTIVES CLAIMED BY THE ASSESSEE IN THE PROFIT & LOSS ACCOUNT . BUSINESS LOSS & DEPRECIATION CLAIM 6.1 IT TRANSPIRED T H AT THE ASSESSEE HAD PRO MOTE D ANOTHER CONCERN I.E., M/S JLI INSURANCE BROKERAGE CO. (JLI) DURING THE YEAR. THIS CONCERN R E FLECTED I NCOME OF R S.19.67 LACS AND CLAIMED EXPENDITURE OF RS.120.42 LACS THEREBY REFLECTING LO S S ES OF RS.100.74 LACS. AFTER ADJUSTING THE 6 ADMISSIBLE DEPRECIA TION, THE LOSS ES WORKED OUT TO BE RS.141.69 LACS WHICH WAS SET - OFF AGAINST THE PROFITS OF M/S FRONTIER TRADING CO. THE LD. AO OPINED THAT THIS ENTITY WAS FORMED AS A DEVICE TO REDUCE THE GROSS PROFITS OF THE PARENT CONCERN AND ACCORDINGLY THE ASSESSEE WAS PUT TO SHOW CAUSE NOTICE ON 26 / 12 / 2005. 6.2 THE ASSESSEE CONTROVERTED THE ALLEGATIONS OF LD. AO BY SUBMITTING THAT TH IS ENTITY WAS ENGAGED IN THE BUSINESS OF PROVIDING INS URANCE BROKERAGE SERVICES. THIS CONCERN HAD TIED UP WITH NUMBER OF REPUTED INSURANCE COMPANIES SUCH AS LIC, ICICI PRUDENTIA L , TATA AIG, H DFC STAND ARD, BIRLA SUNLIFE, NEW INDIA INSURANCE, ORIENTAL INSURANCE, GENERAL INSURANCE ETC. TO PROVIDE INSURANCE BROKERAGE SERVICES. THIS ENTITY WAS STATED TO BE DULY REGISTERED WITH REGULA TORY AUTHORIT Y IRDA AND HOLDING LICENSE W.E.F. 30 / 01 / 2003 FOR CARRYING OUT BROKERAGE BUSINESS. IT WAS EXPLAINED BY THE ASSESSEE THAT IN SURANCE BROKERAGE BUSINESS WAS A SPECIALIZED BUSINESS DRIVE N BY INSURANCE PROCESSIONAL S WHICH CALL FOR INTENSIVE TRAINING AND REGULATO RY COMPLIANCE S . ACCORDINGLY , THIS CONCERN RECRUITED 39 INSURANCE PROFESSIONALS APART FROM SUPPORTING ACCOUNTS AND ADMINISTRATIVE PERSONNEL. THE CONCERN HAD OFFICES AT 21 LOCATIONS DOING THE BUSINESS OF BROKERAGE . SINCE THE BUSINESS WAS OF SPECIALIZED NATUR E , THE PREPARATORY AND ORIENTATION EFFORT HAD TO BE GIN WELL BEFORE THE I SSUANCE OF LICENSE BY IRDA . IT WAS NORMAL FOR SUCH BUSINESS TO HAVE GESTATION PERIOD OF 2 - 3 YEARS BEFORE CASH PROFIT WOULD ACCRUE. THE SAME W AS SOUGHT TO BE SUPPORTED BY THE FACT THAT DURING THE YEAR , THIS CONCERN GENERATED 1208 PROPOSAL FOR VARIOUS INSURANCE COMPANIES INVOLVING SUM ASSURED OF MORE THAN RS . 8.70 CRORES WITH P REMIUM AGGREGATING TO MORE THAN RS.84 LACS. THIS WOULD CLEARLY DENOTE THAT THERE WAS BONA - FIDE BUSINESS CARRIED ON BY M/S JLI . AS PER THE REQUIREMENT OF IRDA, THE 7 INSURANCE BROKERAGE BUSINESS HAD TO BE NECESSARILY CARRIED OUT BY A SEPARATE ENTITY AND IT WAS THEREFORE, IMPERATIVE TO SET UP THIS CONCERN FOR BROKERAGE BUSINESS. FURTHER, THIS ENTITY HAD HAD AN ARRANGEMENT WITH M/S FRONTIER TRADING CO. FOR OBTAINING MARKET INTELLIGENCE DATA AND FOR AVAILING PROCESSING ASSISTANCE. BY THE SAID ARRANGEMENT, M/S FRONTIER TRADING CO. HARNESSED LARGE NUMBER OF DISTRIBUTORS TO COMPILE A PROSPECT DATABASE, FILL UP QUESTIONNAIRES AN D SUBMIT THEM TO INSURANCE PROFESSIONALS IN THE CONCERN. THE MARKET INTELLIGENCE ARRANGEMENT WITH M/S FRONTIER TRADING CO. WAS A VITAL COMPONENT IN THE FUNCTIONING OF THIS CONCERN. ALONG WITH THE REPLY, THE ASSESSEE FURNISHED THE DETAILS OF SALARY PAID DUR ING THE YEAR AND FINALLY SUBMITTED THAT M/S JLI WAS A FULL - FLEDGED INDEPENDENT INSURANCE BROKERAGE ENTITY LEGALLY CONSTITUTED TO CARRY OUT THE LEGITIMATE BUSINESS OF INSURANCE BROKERAGE . 6.3 HOWEVER , IT WAS OBSERVED BY LD. AO THAT THIS ENTITY WAS STARTED IN THIS YEAR AND IT BOOKED HUGE LOSSES IN THE VERY FIRST YEAR OF OPERATIONS . IN FACT, IN THE VERY NEXT AY 2004 - 05, THIS ENTITY WAS CONVERTED INTO A PRIVATE LIMITED COMPANY AGAINST ISSUE OF 99% OF ITS SHARE CAPITAL TO THE ASSESSEE. THIS PRIVATE LIMITED ENTI TY PAID AN AMOUNT OF RS.213.23 LACS TO M/S FRONTIER TRADING CO. AS MARKETING INTELLIGENCE COLLECTION CHARGE S DURING AY 2004 - 05. THEREFORE, THE RECEIPT OF M/S JLI, IN THE FIRST YEAR, WERE VERY SMALL AGAINST WHICH THE ASSESSEE CLAIMED HUGE DEPRECIATION A S WE LL AS BUSINESS L OSSES. IN THE NEXT YEAR, WHEN THE PRIVATE LIMITED ENTITY EARNED SUBSTANTIAL INCOME, IT PAID THE MARKET INTELLIGENCE CHARGES TO M/S FRONTIER TRADING CO. RESULTANTLY, THERE WOULD BE LESSER TAX LIABILITY TO PROPRIETARY CONCERNS AS WELL AS ON P RIVATE LIMITED ENTITY . THUS, TH E CREATION OF M/S JLI WAS A COLORABLE DE V ICE. THEREFORE, THE SET - OFF OF LOSSES WAS DENIED TO THE ASSESSEE. CONSEQUENTLY, THE DEPRECIATION OF 8 RS.54.47 LACS CLAIMED ON COMPUTER, FURNITURE & FIXTURE AND BUSINESS DEVELOPMENT RIGH TS WAS ALSO DISALLOWED. THE BUSINESS DEVELOPMENT RIGHTS WERE NOTHING BUT PRE - OPERATIVE EXPENSES INCURRED ON TRAINING THE STAFF AND COST OF IDENTIFYING VARIOUS LOCATIONS OF BUSINESS. THE SAME WERE CONSIDERED BY THE ASSESSEE TO BE ENDURING IN NATURE AND DEPR ECIATION WAS CLAIMED ON TH E SAME @25%. APPELLATE PROCEEDINGS 7.1 DURING APPELLATE PROCEED I NGS, THE ASSESSEE SUBMITTED THAT TO ENSURE COMPLIANCE BY THIRD PARTIES WAS NOT IN THE CONTROL OF THE ASSESSEE AND THEREFORE, THE ASSESSEE COULD NOT BE HELD RESPONSIBL E FOR NON - COMPLIANCE OF NOTICES ISSUED U/S 133(6). THE REPLIES FURNISHED BY SIX IRS COULD NOT BE THE SOLE BASIS OF MAKING SUCH A HUGE ADDITION . THE AMOUNT CLAIMED BY THE ASSESSEE WAS AS PER ACCRUAL METHOD OF ACCOUNTING WHEREAS IRS REPORTED THE INCOME WHICH WAS ACTUALLY RECEIVED BY THEM. THE ASSESSEE ALSO SUBMITTED THAT IRS WERE FULLY AWARE OF THE SCHEME OF DONATION MADE ON THEIR BEHALF WHICH IS EVIDENT FROM THE FACT THAT IRS CLAIMED DEDUCTION U/S 80G IN THEIR RETURN OF INCOME. THE IRS WERE FULLY AWARE OF TH E FA CT THAT IN CASE SALES TARGET S WERE NOT ACHIEVED , THE COMMISSION WOULD BE FORFEITED AND PAID TO CHARITABLE INSTITUTI ONS. IT WAS ALSO SUBMITTED THAT DONATIONS CONSTITUTED ONLY 2.69% OF OVERALL INCENTI VE DEBITED IN P ROFIT & LOSS ACCOUNT. THE A SSESSEE ALSO DENIED HAVING AVAIL ED DEDUCTION U/S 80G ON THESE DONATIONS. 7.2 KEEPING IN VIEW THE SUBMISSIONS MADE BY THE ASSESSEE, THE MATTER WAS REMANDED BACK WHEREIN SUMMONS WERE ISSUED BY LD. AO TO ALL THE 972 IRS. HOWEVER, ONLY 177 IRS RESPONDED BACK, THE RESULT OF WHICH COULD BE TABULATED AS FOLLOWS: - 9 NO. OF IRS WHO REPLIED AMT. OF INCENTIVE SHOWN BY THE ASSESSEE AMT. OF INCENTIVE RECEIVABLE BY THE PARTY (IRS) AMT. OF INCENTIVE ACTUALLY RECEIVED BY THE PARTY AMT. RECEIVED AFTER 31.03.2003 DONATION PAID 177 4 ,10,73,080.51 1,67,320,218 2,84,40,025 11,77,523 11,53,911 THE LD. AO , IN REMAND REPORTS DATED 12/09/2006 & 13/04/2007 REITERATED THAT THE ADDITIONS MADE IN THE ASSESSMENT ORDER WAS TO BE CONFIRMED. THE ASSESSE E, ON THE OTHER HAND, CONTROVERTED THE FINDI NGS OF LD. AO BY DRAWING ATTENTION TO THE FACT THAT THE REPLIES COULD NOT BE CONSIDERED AS WHOLE TRUTH SINCE IN CASE OF SOME IRS THE AMOUNT RECEIVED BY THEM WAS MUCH MORE THAN THE AMOUNT CLAIMED BY THE ASSESSEE AND THE VARIANCE WAS ONLY A MATTER OF RECONCI LIATION. THE ASSESSEE ALSO DREW ATTENTION TO THE FACT THAT THERE WERE CONTRADICTIONS IN THE REPLIES FURNISHED BY IRS. 7.3 THE LD. CIT(A), AFTER CONSIDERING THE REMAND REPORT AS WELL AS ASSESSEES SUBMISSIONS, NOTED THAT THE INCENTIVE AS PERCENTAGE OF S A LES IN AY 2000 - 01 WAS 47.77% WHICH REDUCED TO 33.39% IN THIS AY WHICH COULD BE DUE TO REDUCED SALE AND CRASH OF ASSESSEES BUSINESS. IT WAS FURTHER NOTED THAT THERE WERE DISCREPANCIES IN THE STATEMENTS OF MOST OF TH E 177 IRS WHO RESPONDED TO THE SUMMONS BU T THE SAME COULD NOT BE RECONCILED BY THE ASSESSEE. A LARGE NUMBER OF IRS (487 IN NUMBER) DID NOT RESPOND TO THE SUMMONS AND IN CASE OF 308 PARTIES, THE SUMMONS WAS RETURNED BACK UNDELIVERED. IN CASE OF ONE OF THE IR NAMELY SHRI UNMESH N. CHAVAN, THE ASSES SEE CLAIMED TO HAVE PAID AN AMOUNT OF R S.60.05 LACS. HOWEVER, ONLY RS. 55.06 LACS WERE ACTUALLY PAID AND BALANCE RS.4.99 LACS WERE PAID IN CHARITY WITHOUT HIS CONSENT SINCE THE IR COULD NOT ACHIEVE THE SALES TARGET TO THAT EXTENT. THE AGREEMENT AS 10 ENTERED I NTO BY THE ASSESSEE WITH IR, DO NOT CONTAIN ANY STIPULATION REGARDING ANY INCENTIVE OR PART THEREOF DUE TO IR TO BE GIVEN AS DONATION TO CHARITY. ALL THAT THE AGREEMENT SAID WAS THAT IRS WOULD NOT HAVE ANY CLAIM ON THE INCENTIVE TO WHICH THEY MAY BE ENTITL ED IN CASE IT IS WITHHELD OR FORFEITED ON ACCOUNT OF FAILURE ON THE PART OF THE IRS. THEREFORE, THE DISALLOWANCE OF 50% AS ESTIMATED BY LD.AO WAS JUSTIFIED. 7.4 REGARDING SET - OFF OF LOSS ES OF M/S JLI , THE ASSESSEE SUBMITTED THAT LD. AO ON ONE HAND DISALLO WED THE EXPENDITURE OF M/S JLI BUT ON THE OTHER HAND NEVER REDUCED THE INCOME IN THE BOOKS OF M/S FRONTIER TRADING CO. ON ACCOUNT OF MARKETING INTELLIGENCE FEES PAID BY M/S JLI TO M/S FRONTIER TRADING CO. THUS, THERE WAS CONTRADICTION ON THE PART OF LD. AO . HOWEVER, GOING BY THE REMAND REPORT, LD. CIT(A) NOTED THAT THE ASSESSEE DID NOT FILE DETAILS IN RESPECT OF AMOUNTS DEBITED IN PROFIT & LOSS ACCOUNT ALONG WITH SUPPORTING DOCUMENTS & VOUCHERS. THEREFORE, THE SET - OFF OF LOSSES COULD NOT BE ALLOWED TO THE A SSESSEE EXCEPT TO THE EXTENT OF RS.51.82 LACS BEING MARKETING FEES PAID BY M/S JLI TO M/S FRONTIER TRADING CO. WHICH WAS REFLECTED AS INCOME IN THE BOOKS OF M/S FRONTIER TRADING CO. THE BALANCE DISALLOWANCE OF RS.48.91 LACS WAS CONFIRMED. THE ACTION OF LD. AO IN DISALLOWING THE DEPRECIATION WAS ALSO CONFIRMED. 7.5 AGGRIEVED AS AFORESAID, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. OUR FINDINGS & ADJUDICATION - DISALLOWANCE OF INCENTIVE PAYMENT 8.1 UPON PERUSAL OF ASSESSEES BUSINESS MODEL, WE F IND THAT TH E ASSESSEE WAS ENGAGED IN TRADING OF IMPORTED MAGNETIC ACUPRESSURE TREATMENT INSTRUMENTS. THE BUSINESS WAS IN THE NATURE OF MULTI - LEVEL MARKETING NETWORK WHEREIN THE CUSTOMERS WHO PURCHASED THE PRODUCT 11 BECOME ELIGIBLE TO BE ENROLLED AS INDIVIDUAL REPRESENT ATIVE (IR). AN IR WHO HAS PERSONALLY EXPERIENCED THE BENEFITS ACCRUING TO HIM AS AN IR WOULD SHARE THE SAME WITH HIS FRIENDS, RELATIVES AND BUSINESS ASSOCIATES. THE INTERESTED POTENTIAL BUYERS WOULD THEN BE INVITED TO ATTEND A SEMINAR AT THE SHOWROOM WHERE THEY WOULD BE INTRODUCED TO THE PRODUCT AND ALSO TO THE BUSINESS OPPORTUNITIES THAT THE Y C OULD AVA I L BY BUYING THE PRODUCT AND REGISTERING AS A N INDEPENDENT REPRESENTATIVE. THUS, INITIALLY THE ASSESSEE WOULD APPOINT INDEPENDENT IRS WHO WOULD SELL THE PROD UCT AS WELL AS INTRODUCE NEW IRS IN THE CHAIN. WHEN NEW IRS WOULD SELL THE PRODUCT OR BRING NEW IRS, THE CHAIN WOULD BE ENLARGED AND ACCORDINGLY, THE COMMISSION WOULD BE DISTRIBUTED TO THE ASSESSEE AS WELL AS EARLIER CHAIN OF IRS WHO INTRODUCED SU CH AN IR. THE SALES TARGETS WOULD BE GIVEN TO IRS BY THE ASSESSEE. IN CASE THE SALES TARGETS WERE NOT ACHIEVED, THEN THE COMMISSION THAT WOULD HAVE ACCRUED TO THE IRS WOULD STAND FORFEITED. THUS, IT COULD BE SEEN THAT THERE WOULD BE LARGE CHAIN OF IRS WORKING UNDER THE ASSESSEE TO WHOM THE COMMISSION WOULD BE PAID BY THE ASSESSEE . K EEPING IN VIEW THE NATURE OF BUSINESS, IT WAS QUITE POSSIBLE THAT THE ASSESSEE WOULD NOT KNOW LARGE NUMBER OF IRS PRESENT IN THE CHAIN. IN SUCH A CASE, THE ASSESSEES EXPLANATION THAT FUR NISHING OF REPLIES BY IRS WOULD NOT BE IN THE CONTROL OF THE ASSESSEE , WAS TO BE ACCEPTED AND THE SAME WAS A PLAUSIBLE REASONING . 8.2 PROCEEDING FURTHER, A S PER THE TERMS OF THE AGREEMENT, IF SALES TARGETS WERE NOT ACHIEVED BY THE IRS , THE ASSESSEE WAS EN TITLED TO WITHHOLD / FORFEIT THE AMOUNT OF INCENTIVE WITH AN UND ERSTANDING THAT SUCH FORFEITED AMOUNT WOULD BE DONATED BY THE ASSESSEE TO CHARITABLE ORGANIZATION ON BEHALF OF THE IRS. TH IS ARRANGEMENT IS EVIDENT FROM THE FACT THAT THE SEVERAL IRS, IN REPLY TO THE SUMMONS, HAVE ACCEPTED THIS 12 FACT. THE SAME IS ALSO EVIDENT FROM THE FINDING OF LD. AO THAT DURING REMAND PROCEEDINGS, IRS HAVE ACCEPTED THAT DONATION O F RS.11.53 L ACS WAS PAID BY THE ASSESSEE ON THEIR BEHALF. THE CASE OF SHRI UMESH CHAVAN, WHICH FO RM THE BASIS OF OPINION OF LD. AO, IS A CASE WHERE THIS FACT HAS BEEN DISPUTED ONLY WHEN HIS APPEAL WAS PENDING BEFORE LEARNED FIRST APPELLATE AUTHORITY A ND THAT TOO AFTER A PERIOD OF 4 YEARS. IN HIS CASE, THE ASSESSEING OFFI C ER HA D TR E ATED THE DONATION AS HIS INCOME WHICH WOULD SUPPORT THE CASE OF THE ASSESSEE THAT THERE WAS SUCH AN ARRANGEMENT BETWEEN THE ASSESSEE AND THE IRS. 8.3 IT IS APPARENT THAT THERE IS NO CHANGE IN ASSESSEES MODE OF OPERATION OF THE BUSINESS. THE INCENTIVE / COMMISSION PAID BY TH E ASSESSEE, IN SIMILAR MANNER, HAS BEEN ALLOWED BY LD. AO IN SCRUTINY ASSESSMENT PROCEEDINGS U/S 143(3) FOR AYS 1998 - 99, 2000 - 01 & 2001 - 02 . IT IS ALSO EVIDENT FROM THE IMPUGNED ORDER THAT THE RATIO OF INCENTIVE PAID BY THE ASSESSEE VIS - - VIS SALES HAS, IN FACT, FALLEN OVER VARIOUS YEARS WHICH IS EVIDENT FROM FOLLOWING TABULAT ION : - AY I NCENTIVE AS PERCENTAGE OF SALES 2003 - 04 33.39 % 2002 - 03 42.64 % 2001 - 02 46.14 % 2000 - 01 47.77 % IT COULD BE SEEN FROM THE ABOVE TABLE THAT T HE ASSESSEE HAS PAID COMMI SSION OF 47.77% & 46.14% IN AYS 2000 - 01 & 2001 - 02 RESPECTIVELY AND THE SAME HAS BEEN ACCEPTED BY LD. AO IN THE SCRUTINY ASSESSMENT. THIS RATIO HAS ULTIMATELY BEEN FALLEN TO 33.39% IN THIS YEAR AND THEREFORE, 13 THE SAME COULD NOT BE HELD TO BE EXCESSIVE OR UN REASONABLE CONSIDERI NG THE FACTS IN EARLIER YEARS. 8.4 PROCEEDINGS FURTHER, IT COULD BE OBSERVED THAT THE ASSESSEE HAD FURNISHED COMPLETE DETAILS VIZ. NAME, ADDRESS AND PAN OF ALL IRS INCLUDING AMOUNTS PAYABLE TO EACH OF THEM. THE SAME HAS ENABLED LD. AO TO ISSUE SUMMONS TO ALL THE IRS DURING REMAND PROCEEDINGS. PERTINENTLY, THE ASSESSEE HAS DEDUCTED APPLICABLE TDS U/S 194H WHICH IS EVI DENT FROM ASSESSEES SUBMISSIONS AS NOTED BY LD. CIT(A) IN P ARA - 2.10 ( I ) OF THE IMPUGNED ORDE R . IT WAS SUBMITTED BY THE ASSESSEE THAT THERE WAS NO LAPSE REGARDING TDS SINCE THE ASSESSEE HAD DEDUCTED TDS U/S 194H AND FURNISHED COPIES OF TDS CERTIFICATES. IN THIS BACKGROUND, NON - FURNISHING OF REPLY BY IRS COULD NOT BE ATTRIBUTED TO ANY LAPSE ON THE PART OF THE ASSESSEE AND TH ERE IS NO SUBSTANCE IN THE ALLEGATION OF LD. AO THAT THE COMMISSION WAS PAID IN VIOLATION OF TDS PROVISIONS. 8.5 SO FAR AS THE DIFFERENCE IN INCENTIVE COMMISSION REPORTED BY IRS VIS - - VIS INCENTIVE COMMISSION CLAIMED BY THE ASSESSEE IS CONCERNED, IT COU LD BE GATHERED THAT LD. AO HAS INQUIRE D ONLY ABOUT THE COMMISSIONS ACTUALLY RECEIVED BY THE IR S DURING THE YEAR AND NOT THE FIGURES OF GROSS COMMISSION ACCRUED TO THEM DURING THE YEAR. THERE WOULD ALWAYS BE DIFFERENCE IN THE TWO FIGURES IN VIEW OF THE FACT THAT THE ASSESSEE WAS ACCOUNTING INCENTIVE COMMISSION ON ACCRUAL BASIS WHEREAS I RS WERE ASKED TO SUPPLY THE FIGURES OF COMMIS SIONS ACTUALLY RECEIVED BY THEM DURING THE YEAR . ANOTHER FACTOR OF VARIANCE WOULD BE THAT THE ASSESSEE HAS DEDUCTED TDS ON THESE P AYMENTS AND THEREFORE , THE AMOUNT ACTUALLY RECEIVED BY IRS WOULD BE LESS. MORE SO, AS PER THE TERMS OF THE AGREEMENT, THE INCENTIVE / COMMISSION AMOUNT COULD BE FORFEITED BY THE 14 ASSESSEE UNDER CERTAIN CIRCUMSTANCES WHICH WOULD HAVE BEEN PAID AS DONATION T O CHARITY. IN SUCH A CASE, THE ASSESSEE WOULD ACCOUNT SUCH AN EXPENDITURE ON GROSS BASIS INCLUDING THE AMOUNT OF DONATION BUT THE SAME WOULD NEVER BE REPORTED TO HAVE BEEN RECEIVED BY IRS. THEREFORE, THE NATURE OF INQUIRY AS MADE BY LD. AO , WOULD NOT SUPPOR T THE CASE OF THE REVENUE. 8.6 IT COULD BE OBSERVED THAT REPLIES WERE RECEIVED BY LD.AO DURING REMAND PROCEEDINGS FROM 177 IRS, THE RESULT OF WHICH ( AS DETAILED IN THE IMPUGNED ORDER ) WAS A S FOLLOWS: - NO. OF IRS WHO REPLIED AMT. OF INCENTIVE SHOWN BY TH E ASSESSEE AMT. OF INCENTIVE RECEIVABLE BY THE PARTY (IRS) AMT. OF INCENTIVE ACTUALLY RECEIVED BY THE PARTY AMT. RECEIVED AFTER 31.03.2003 DONATION PAID 177 4,10,73,080.51 1,67,320,218 2,84,40,025 11,77,523 11,53,911 IT COULD BE SEEN THAT AGGREGATE AMOU NT REPORTED TO BE RECEIV ABLE BY THE IRS WAS RS.167.32 LACS AND THE AMOUNT ACTUALLY RECEIVED BY THEM WAS RS.284.40 LACS. THE TOTAL OF THE TWO FIGURES WOULD BE RS. 451.7 2 LACS (RS.167.3 2 LACS + RS.284.40 LACS) WHICH IS MUCH MORE THAN THE AMOUNT OF RS. 410.73 L ACS AS REFLECTED / CLAIMED BY THE ASSESSEE IN ITS BOOKS OF AC COUNTS. THEREFORE , THE VARIATION WAS ONLY A MATTER OF RECONCILIATION ONLY AND THERE WAS NO CASE OF ANY EXCESSIVE CLAIM BEING MADE BY THE ASSESSEE WHICH COULD BE DISALLOWED BY LD. AO. ON THE FAC TS OF THE CASE, THE BURDEN WAS ON REVENUE TO SHOW THAT THE CLAIM WAS INCORRECT. FURTHER, THE REPLIES RECEIVED FROM 177 IRS OU T OF 972 IRS , COULD NOT BE EXTRAPOLATED TO DIS ALLOW EXPEN DITURE TO HUGE E XTENT OF 50% AS 15 CLAIMED BY THE ASSESSEE. THE RULE OF CONSIST ENCY WOULD DEBAR REVENUE TO MAKE SUCH A DISALLOWANCE. 8.7 THE LD. AR, IN THE ADDITION AL GROUND OF APPEAL, HAS PLEADED FOR GRANT OF DEDUCTION U/S 80G IN CASE A VIEW WAS TAKEN THAT DONATION WAS NOT PAID BY THE ASSESSEE ON BEHALF OF THE IRS AND THEREFORE, THE DEDUCTION OF EXPENDITURE COULD NOT BE ALLOWED TO THE ASSESSEE. WE FIND THAT IT IS THE CONSISTENT STAND OF THE ASSESSEE THAT THERE WAS AN UNDERSTANDING THAT FORFEITED AMOUNT WAS TO BE PAID AS DONATIONS TO CHARITY. IN FACT, MANY IRS HAVE ALSO CONFIRMED THIS FACT. IT IS ALSO PERTINENT TO NOTE THAT DEDUCTION U/S 80G HAS BEEN CLAIMED BY MANY IRS IN THEIR RESPECTIVE RETURN OF INCOME SINCE THE DONATIONS HAVE BEEN MADE ON THEIR BEHALF AGAINST RECEIPTS WHICH HAVE ALSO BEEN ISSUED IN THEIR RESPECTIVE NAMES. IN SUCH A CASE, NO SUBSTANCE COULD BE FOUND IN THE ALTERNATIVE CLAIM OF THE ASSESSEE. THE SAME IS BEREFT OF ANY MERIT AND HENCE, DISMISSED. 8.8 WE FIND THAT THIS APPEAL PERTAINS TO AY 2003 - 04 AND THE CASE WAS ALREADY SUBJECTED TO REMAND PROCEEDINGS BY LEARNED FIR ST APPELLATE AUTHORITY. IN FACT, LD. AO HAS SUBMITTED THREE REMAND REPORTS IN THE CASE. KEEPING IN VIEW THE SAME, WE WOULD LIKE TO PUT AN END TO LITIGATION BY RENDERING CONCRETE FINDINGS IN THE CASE. THEREFORE, ON THE F ACTS AND CIRCUMSTANCES OF THE CASE A S WELL AS KEEPING IN VIEW OUR FINDINGS AND OBSERVATIONS AS ENUMERATED IN PRECEDING PARAGRAPHS, TO PLUG THE LEAKAGE OF REVENUE, WE DIRECT LD. AO TO DISALLOW 0.5% OF INCENTIVE COMMISSION CLAIMED BY THE ASSESSEE DURING THE YEAR. THE SAME WORKS OUT TO BE RS.25, 24,100/ - . THE BALANCE ADDITION STAND DELETED. THE GROUNDS THUS RAISED STANDS PARTLY ALLOWED. 16 BUSINESS LOSS ES & DEPRECIATION CLAIM 9.1 COMING TO THE ISSUE OF SET - OFF OF LOSSES INCURRED BY THE ASSESSEE IN PROPRIETORSHIP CONCERN NAMELY M/S JLI INSURANCE BROK ERAGE COMPANY (JLI) , WE FIND THAT IT IS THE ALLEGATION OF LD. AO THAT THIS ENTITY WAS A COLOURABLE DEVICE TO REDUCE THE OVERALL TAX LIABILITY. FROM THE PERUSAL OF ASSESSMENT ORDER, IT IS EVIDENT THAT THIS ENTITY WAS A NEWLY SET UP ENTITY AND WAS STATED TO BE ENGAGED IN THE BUSINESS OF IN SURANCE BROKERAGE. FOR THE SAID PURPOSE, THIS ENTITY OBTAINED REQUISITE LICENSE FROM INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY OF INDIA (IRDA) ON 30 /01/2003. THIS ENTITY REFLECTED INCOME OF RS.19.67 LACS AND CLAIMED EXP ENSES OF RS.120.42 LACS AND THUS REFLECTED BUSINESS LOSSES OF RS.100.74 LACS. THE ASSESSEE ALSO CLAIMED DEPRECIATION OF RS.54.47 LACS ON FIXED ASSETS OWNED BY THIS FIRM. OUT OF THESE EXPENSES, M/S JLI PAID AN AMOUNT OF RS.51.82 LACS TO M/S FRONTIER TRADING CO. AS MARKETING INTELLIGENCE AND COLLECTION CHARGES WHICH WAS OFFERED TO TAX. AS PER ASSESSEES SUBMISSIONS, THIS CONCERN HAD TIED UP WITH NUMBER OF REPUTED INSURANCE COMPANIES SUCH AS LIC, ICICI PRUDENTIAL, TATA AIG, HDFC STANDARD, BIRLA SUNLIFE, NEW IN DIA INSURANCE, ORIENTAL INSURANCE, GENERAL INSURANCE ETC. TO PROVIDE INSURANCE BROKERAGE SERVICES. THIS CONCERN RECRUITED 39 INSURANCE PROFESSIONALS APART FROM SUPPORTING ACCOUNTS AND ADMINISTRATIVE PERSONNEL. THE CONCERN HAD OFFICES AT 21 LOCATIONS DOING THE BUSINESS OF BROKERAGE. PERTINENTLY, THIS ENTITY GENERATED 1208 PROPOSAL FOR VARIOUS INSURANCE COMPANIES INVOLVING SUM ASSURED OF MORE THAN RS.8.70 CRORES WITH PREMIUM AGGREGATING TO MORE THAN RS.84 LACS. 9.2 ALL THESE FACTS WOULD STRENGTHEN THE ARGUME NT OF LD. AR THAT THERE WAS BONA - FIDE BUSINESS CARRIED ON BY THIS CONCERN. AS PER THE 17 REQUIREMENT OF IRDA, THE INSURANCE BROKERAGE BUSINESS HAD TO BE NECESSARILY CARRIED OUT BY A SEPARATE ENTITY AND IT WAS THEREFORE, IMPERATIVE TO SET UP THIS CONCERN FOR B ROKERAGE BUSINESS. THE ASSESSEE DULY FURNISHED THE DETAILS OF SALARY PAID BY THIS CONCERN DURING THE YEAR. THESE WERE THIRD PARTY EXPENSES AND THE ASSESSEE WOULD NOT HAVE INCURRED THE SE EXPENSES IF IT WAS NOT CARRYING ON THE INSURANCE BROKING ACTIVITY . THE BOOKS OF ACCOUNTS OF THIS ENTITY HAVE DULY BEEN AUDITED UNDER LAW. ON THE BASIS OF ALL THESE FACTS, IT COULD BE CONCLUDED THAT HIS ENTITY WAS A FULL - FLEDGED INDEPENDENT INSURANCE BROKERAGE ENTITY LEGALLY CONSTITUTED TO CARRY OUT THE LEGITIMATE BUSINESS OF INSURANCE BROKERAGE. THE OBSERVATION OF LD.AO THAT THIS WAS CONVERTED IN THE NEXT YEAR IN TO A PRIVATE LIMITED COMPANY WOULD ONLY STRENGTHEN THE FACT THAT THE EXISTENCE OF THIS ENTITY WAS BEYOND DOUBT. THEREFORE, THE BALANCE BUSINESS LOSSES OF RS.48.91 LA CS AS DISALLOWED BY LOWER AUTHORITIES WOULD BE ALLOWABLE TO THE ASSESSEE AND THE SET - OFF OF THE SAME WOULD BE AVAILABLE TO THE ASSESSEE. 9.3 REGARDING DISALLOWANCE OF DEPRECIATION, WE FIND THAT THE ASSESSEE HAD FURNISHED A DETAILED STATEMENT OF EXPENDITUR E INCURRED ON B USINESS D EVELOPMENT R IGHTS AS WELL AS THE DETAILS OF OTHER FIXED ASSETS LIKE COMPUTER, FURNITURE & FIXTURES. THE SAME HAS BEEN DISALLOWED PRIMAR ILY IN VIEW OF THE FACT THAT THIS BUSINESS HAS BEEN HELD TO BE NON - EXISTENCE AND A COLOURABLE DEV ICE TO REDUCE THE TAX LIABILITY. SINCE WE HAVE REJECTED SUCH A CONCLUSION DRAWN BY LOWER AUTHORITIES, THE ASSESSEE WOULD BE ENTITLED FOR DEPRECIATION CLAIM OF RS.54.47 LACS AS PER COMPUTATION OF INCOME . WE ORDER SO. 9.4 THESE GROUNDS STAND ALLOWED. 18 CONCLUSION 10. THE APPEAL STANDS PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED ON 30 TH JULY, 2021. SD/ - SD/ - ( MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : SR.PS, JAISY VARGHESE / 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 FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.