M/s. INDO NIPPON CHEMICAL CO. LTD., MUMBAI V. ITO - 1(2)-1, MUMBAI

ITA 6765/MUM/2006

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92630 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 21-05-2015
• Assessment Year: 1993-1994
• Appeal Filed On: 13-12-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: C A SANDEEP PATEL
• Keywords: Business income; Depreciation; Question of law; Bad and doubtful debts
• Section: 14A; 260A; 32

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.6765/MUM/2006 / ASSESSMENT YEAR 1993-94 . / ITA NO.6766/MUM/2006 / ASSESSMENT YEAR 1994-95 . / ITA NO.6767/MUM/2006 / ASSESSMENT YEAR 1995-96 INDO NIPPON CHEMICAL LTD. MAKER BHAVAN NO.2, 18, NEW MARINE LINES, 3 RD FLOOR, MUMBAI 400 020 / VS. INCOME TAX OFFICER 1(2)-1, AAYKAR BHAVAN, MK ROAD, MUMBAI. ./ ./ PAN/GIR NO. : AAACI 2898B ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY S/SHRI C.A.SANDEEP PATEL & C.A. MUKUND BAKSHI RESPONDENT BY SHRI SACHHIDANAND DUBEY ! ' / DATE OF HEARING : 26/05/2015 ! ' / DATE OF PRONOUNCEMENT : /05/2015 / O R D E R PER BENCH: THESE APPEALS ARE FILED BY THE ASSESSEE AND THESE ARE DIRECTED AGAINST THREE SEPARATE ORDERS PASSED BY LD. CIT(A) IN RESPE CT OF ASSESSMENT YEARS 1993-94, 1994-95 AND 1995-96. ORDERS FOR ASSESSMEN T YEAR 1993-94 AND ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 2 1994-95 ARE DATED 5/10/2006 AND ORDER FOR ASSESSMEN T YEAR 1995-96 IS DATED 6/10/2006. IN ALL THESE APPEALS ASSESSEE IS AGGRIE VED BY LEVY OF CONCEALMENT PENALTY, WHICH HAS BEEN CONFIRMED BY LD. CIT(A). GR OUNDS OF APPEAL FOR A.Y 1993-94 AND 1994-95 ARE IDENTICAL EXCEPT DIFFERENCE IN FIGURES. GROUNDS OF APPEAL IN RESPECT OF A.Y 1993-94 READ AS UNDER: 1. THE COMMISSIONER OF INCOME TAX (APPEALS) - I, MU MBAI ERRED IN CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S 271(1)( C) OF THE INCOME TAX ACT OF RS.1,61,81,223/-. THE APPELLANT SUBMIT THAT THE DEP RECIATION CLAIMED BY THE APPELLANTS WERE ON ASSETS WHICH WERE PURCHASED FROM VARIOUS SUPPLIERS AND WERE GIVEN ON LEASE TO OTHER COMPANIES. THE PURCHAS E OF ASSET WAS NOT DISPUTED AND THE CLAIM OF DEPRECIATION BY THE APPELLANT WAS ALSO GENUINE ON THE BASIS OF ASSETS PURCHASED AND GIVEN ON LEASE AND THEREFORE T HE LEVY OF PENALTY IS NOT JUSTIFIED MERELY BECAUSE THE APPELLANT HAD CLAIMED 100% DEPRECIATION ON THE SALE AND LEASE BACK TRANSACTIONS. 2. THE SAID CIT(A) ALSO HAS NOT APPRECIATED THE FAC T THAT THE APPELLANTS HAVE EARNED LEASE RENT ON THE SAID ASSET IN THE SAME YEA R AS WELL AS THE SUBSEQUENT YEARS WHICH HAVE BEEN DECLARED AS INCOME BY THE APP ELLANTS AND HAVE BEEN BROUGHT TO TAX IN THEIR HANDS. 2. THE FIGURE MENTIONED IN THE GROUNDS OF APPEAL FO RA.Y 1994-95 IS RS. 1,29,46,309/-. 3. GROUNDS OF APPEAL FOR A.Y 1995-96 READ AS UNDER: 1. THE COMMISSIONER OF INCOME TAX (APPEALS)-1, MU MBAI ERRED IN CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFI CER U/S. 271(1)(C) OF THE INCOME TAX ACT OF 2,19,85,136/- IN RELATION TO: (I) DISALLOWANCE OF DEPRECIATION RS. 82,293 (II) DISALLOWANCE U/S. 37(2) RS. 2,44,097 (III) DISALLOWANCE OF DEPRECIATION ON PLANT& MACHINERY RS.4,52,01,848 (IV) SERVICE CHARGES RS. 22,65,536 ------------- ----- RS.4,77,93,77 4 ============ THE APPELLANT SUBMIT THAT THE DEPRECIATION CLAIMED BY THE APPELLANTS WERE ON ASSETS WHICH WERE PURCHASED FROM VARIOUS SUPPLIE RS AND WERE GIVEN ON LEASE TO OTHER COMPANIES . THE PURCHASE OF ASSET WAS NOT DISPUTED AND THE CLAIM OF DEPRECIATION BY THE APPELLANT WAS ALSO GEN UINE ON THE BASIS OF ASSETS ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 3 PURCHASED AND GIVEN ON LEASE AND THEREFORE THE LEVY OF PENALTY IS NOT JUSTIFIED MERELY BECAUSE THE APPELLANT HAD CLAIMED 100% DEPRE CIATION ON THE SALE AND LEASE BACK TRANSACTIONS. 2. THE SAID CIT(A) ALSO HAS NOT APPRECIATED THE FAC T THAT THE APPELLANTS HAVE EARNED LEASE RENT ON THE SAID ASSET IN THE SAME YEA R AS WELL AS THE SUBSEQUENT YEARS WHICH HAVE BEEN DECLARED AS INCOME BY THE APP ELLANTS AND HAVE BEEN BROUGHT TO TAX IN THEIR HANDS. 4. AS IT CAN BEEN SEEN FROM THE ABOVE GROUNDS OF AP PEAL, THE COMMON ISSUE INVOLVED IN ALL THESE APPEALS IS REGARDING PENALTY LEVIED ON THE CLAIM OF DEPRECIATION ON THE ASSETS STATED TO BE PURCHASED BY THE ASSESSEE AND GIVEN ON LEASE. 5. THESE APPEALS WERE ORDERED TO BE FIXED FOR HEAR ING ON 24/04/2015 BY THE ORDER OF HONBLE PRESIDENT ON THE APPLICATION O F THE ASSESSEE DATED 23/4/2015, IN WHICH IT WAS CLAIMED THAT THESE APPEA LS WERE ADJOURNED SINE- DIE FOR THE REASON THAT QUANTUM APPEALS WERE PENDI NG BEFORE HONBLE BOMBAY HIGH COURT. IT IS MENTIONED IN THE APPLICATION THA T HONBLE HIGH COURT HAS ADMITTED THE QUESTION OF LAW ON THE ISSUE OF DISALL OWANCE OF DEPRECIATION AND THUS, IN A CASE WHERE QUESTION HAS BEEN ADMITTED BY HONBLE HIGH COURT CONCEALMENT PENALTY WOULD NOT BE APPLICABLE IN VIEW OF THE FOLLOWING DECISIONS: 1. MUMBAI HIGH COURT IN THE CASE OF NAYAN BUILDER S & DEVELOPERS (ITA NO.415 OF 2012) (DATE OF PRONOUNCEMENT : 08.07.2014) 2. MUMBAI TRIBUNAL IN CASE OF SCHRADER DUNCAN LTD. [ITA NO.8223/MUM/2010] (DATE OF PRONOUNCEMENT: 01/01/2015) 3. MUMBAI TRIBUNAL IN THE CASE OF ADVAITA ESTATE DE VELOPMENT PVT. LTD. [ITA NO.7589/MUM/2011](DATE OF PRONOUNCEMENT : 27/08/201 3) ON SUCH APPLICATION FILED BY THE ASSESSEE HONBLE P RESIDENT HAS ORDERED TO FIX THESE APPEALS FOR HEARING ON 24/04/2015 AND IN THIS MANNER THESE APPEALS HAVE COME UP FOR HEARING. ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 4 6. ON THESE FACTS, IT WAS SUBMITTED BY LD. AR THAT THE COPIES OF RELEVANT ORDERS PASSED BY HONBLE HIGH COURT ADMITTING QUEST ION OF LAW IN QUANTUM APPEALS ARE PLACED IN THE PAPER BOOK AND FOR A.Y 1 993-94, REFERENCE WAS MADE TO PAGES 401 AND 402 OF THE PAPER BOOK, WHEREIN THE IR LORDSHIPS OF HONBLE BOMBAY HIGH COURT VIDE THEIR ORDER DATED 4/3/2015 IN INCOME TAX APPEAL NO.1684 OF 2012 HAVE OBSERVED AS UNDER: WE HAVE HEARD MR. HAKANI, APPEARING ON BEHALF OF TH E ASSESSEE AND MR. CHHOTARRAY, APPEARING ON BEHALF OF THE REVENUE. IN THE LIGHT OF THE WRITTEN REQUEST PLACED BEFORE US AND THE AGREEMENT ARRIVED AT BY THE COUNSE, WE CORRECT OUR ORDER PASSED ADMITTING THIS INCOME TAX APPEAL DATED 7 TH JANUARY, 2015, AS UNDER: (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEASE AGREEMENTS IN QUESTION COULD BE CALLED FINAN CIAL LEASE AGREEMENTS? (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES, THE LESSOR IS ENTITLED TO DEPRECIATION ON ASSETS LEASED BY IT IN THE EVENT O F THE TRANSACTION BEING HELD AS A FINANCIAL LEASE? 2. THE APPEAL WOULD THEREFORE STAND ADMITTED ON TH E SUBSTANTIAL QUESTIONS OF LAW REPRODUCED ABOVE IN ADDITION TO TH OSE ENUMERATED IN OUR ORDER DATED 7 TH JANUARY, 2015. THE REGISTRY TO CARRY OUT THE CORR ECTIONS ACCORDINGLY AND ISSUE TO THE PARTIES CORRECTED COPY OF ORDER. NO OTHER CORRECTION OR CLARIFICATION IS NECESSARY. 3. APPLICATION IS DISPOSED OF. 6.1 FOR ASSESSMENT YEAR 1994-95 AND 1995-96 REFEREN CE WAS MADE TO ORDER OF HONBLE BOMBAY HIGH COURT DATED 18/3/2015 PASSED IN INCOME TAX APPEAL NOS. 1137 OF 2013 AND 1138 OF 2013 IN RESPECT OF A. YS 1994-95 AND 1995-96 RESPECTIVELY AND THE OBSERVATIONS OF THEIR LORDSHIP S ARE A SUNDER: WE HAVE HEARD DR.K.SHIVRAM LEARNED SENIOR COUNSEL APPEARING FOR THE APPELLANT AND MR. CHHOTARAY APPEARING FOR THE RESP ONDENTS. SINCE SIMILAR QUESTIONS HAVE BEEN ADMITTED BY THIS COURT, THESE INCOME TAX APPEALS ARE ADMITTED. THESE ARE ADMITTED ON THE FO LLOWING SUBSTANTIAL QUESTIONS OF LAW: (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE APPELLANT IS ENTITLED TO DEPRECIATION UNDER SECTION 32 OF THE INCOME TAX ACT, 1961, ON THE COST VALUE OF THE LEASED ASSETS AND HENCE TH E APPELLATE TRIBUNAL HAD ERRED IN DENYING THE DEPRECIATION OF RS.2,07,63,120/- (RS .4,52,01,848/- IN ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 5 ITXA/1138/2013) ON THE COST VALUE OF LEASED ASSETS BY HOLDING THE LEASE AGREEMENT AS FINANCE LEASE AGREEMENT? (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEASE AGREEMENTS IN QUESTION COULD BE CALLED FINAN CIAL LEASE AGREEMENTS? (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES, THE LESSOR IS ENTITLED TO DEPRECIATION ON ASSETS LEASED BY IT IN THE EVENT O F THE TRANSACTION BEING HELD AS A FINANCIAL LEASE? 2. REVENUE WAIVES SERVICE. 3. TO BE HEARD ALONG WITH INCOME TAX APPEAL NO.168 4 OF 2012. 4. TRIBUNAL THE REGISTRAR (JUDICIAL)/REGISTRAR, HI GH COURT, ORIGINAL SIDE, BOMBAY TO ENSURE THAT THE ORIGINAL RECORD IN RELATION TO THESE APPEALS IS SUMMONED FROM THE TRIBUNAL AND OFFERED FOR INSPE CTION OF THE PARTIES. THIS PAPER BOOKS IS TREATED SUFFICIENT FOR THE PURP OSE OF ADMISSION OF THIS APPEAL. HOWEVER, THE REGISTRY MUST FURTHER ENSURE PREPARATION OF COMPLETE PAPER BOOK IN ACCORDANCE WITH THE RULES. THE REGISTRY IN THE FIRST INSTANCE MUST END INTIMATION OF ADMISSION OF THIS APPEAL ENCLOSING THEREWITH A COPY OF THIS ORDER SO AS TO ENABLE THE TRIBUNAL TO ACT ACCORDINGLY. 6.2 IT WAS SUBMITTED BY LD. AR THAT IT IS A CASE OF FINANCE LEASE AND ACCORDING TO FOLLOWING DECISIONS OF VARIOUS HIGH C OURTS THE ASSESSEE WOULD BE ENTITLED TO GET DEPRECIATION AS LEASE INCOME HAS BEEN ASSESSED BY THE AO. - FIRST LEASING COMPANY OF INDIA LTD., VS. ACIT, 3 56 ITR 128 (MAD) - CIT VS. COSMO FILMS LTD., 338 ITR 266 (DELHI) - CIT VS. HIGH ENERGY BATTERIES (INDIA) LTD., 348 ITR 574 (MAD) - CIT VS. TVS FINANCE AND SERVICES LTD., 366 ITR 4 87 (MAD) - INDUSTRIAL DEVELOPMENT CORPORATION OF ORISSA LTD . VS. CIT, 268 ITR 130 (ORISSA 6.3 IT WAS FURTHER SUBMITTED THAT THE ISSUE HAVE BE EN DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL FOLLOWING SPECIAL BENCH D ECISION IN THE CASE OF INDUSIND BANK LTD. VS. ACIT 135 ITD 165 . IT WAS SUBMITTED THAT THE SAID DECISION OF SPECIAL BENCH WAS NOT APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE AS THERE IS A DIFFERENCE IN THE FACTS OF T HE SAID CASE AND THE FACTS OF THE ASSESSEES CASE, WHICH HAS BEEN BROUGHT OUT IN THE FOLLOWING TABLE: ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 6 FACTS OF INDUSIND BANK FACTS OF THE APPELLANT 1. THE ASSESSEE IS A BANK AND HENCE HAS CERTAIN REGULATIONS AS PER THE RBI TO ENTER INTO OPERATING LEASE. RBI CIRCULAR NO.FSCBC 18/24-01-001/93-94 DATED 14.02.1994 STATES THAT SUCH ACTIVITIES SHOULD BE TREATED AS PAR WITH LOANS AND ADVANCES. THE ASSESSEE COMPANY IS NOT A BANK. 2. THE TRIBUNAL HELD THAT IT IS NOT EVEN A FINANCE LEASE BUT A SIMPLE LOAN IN THE PRESENT CASE IT IS NOT A LOAN 3. THE TRIBUNAL OBSERVED THAT THE ASSESSEE HAD ALREADY ADVANCED SHORT TERM LOAN TO INDO-GULF TO PURCHASE THE BOILER MUCH PRIOR TO THE ENTERING INTO LEASE AGREEMENT. THE LEASE AGREEMENT WAS ENTERED INTO SUBSEQUENTLY WITH THE SOLE PURPOSE OF ENABLING ASSESSEE TO ARTIFICIALLY FULFIL THE TWIN REQUIREMENTS OF OWNERSHIP AND USER OF THE ASSET SO AS TO CLAIM DEPRECIATION, WHICH IT WAS NOT OTHERWISE ENTITLED AS PER LAW AND THEREBY REDUCE INCOME IN MALA FIDE MANNER BASED ON THIS FINDING, THE TRIBUNAL CONCLUDED THAT THE LEASE WAS SHAM AND MALFFIDE. THE ASSESSEE HAS NOT ADVANCED LOAN TO LESSEES. IN FACT THE ASSESSEE HAS BORROWED FUNDS UNDER HIRE PURCHASE AGREEMENTS HENCE WAS NOT SHAM AND MALAFIDE. 4. THE ASSESSEES ALTERNATIVE CONTENTION THAT IF DEPRECIATION ON THE LEASED ASSET WAS TO BE DISALLOWED BY TREATING IT AS A LOAN TRANSACTION, THEN THE CAPITAL RECOVERY EMBEDDED IN THE LEASE RENTALS SHOULD NOT BE CHARGED TO TAX, WAS ACCEPTED BY THE AO IN ALL FAIRNESS BY RESTRICTING THE NET DISALLOWANCE TO RS.6,42,07,759/-. IN THE PRESENT CASE, THE AO AS TAXED THE LEASE RENTAL IN ALL THE YEARS, WHEREAS DENIED THE DEPRECIATION. 5. THE LESSEE PAID ALL TAXES IN THE PRESENT CASE, T HE LESSOR HAS PAID LEASE TAX, SALES TAX, ETC. 6.4 IT WAS FURTHER SUBMITTED THAT IN ANY CASE EVEN IF ABOVE SUBMISSIONS OF THE ASSESSEE ARE NOT ACCEPTED THEN ALSO IN VIEW OF ADMISSION OF SUBSTANTIAL QUESTIONS OF LAW IN THE QUANTUM APPEAL BY THE HONB LE HIGH COURT PENALTY UNDER SECTION 271(1)(C) OF THE ACT CANNOT BE LEVIED AND REFERENCE WAS MADE TO THE FOLLOWING DECISIONS: - CIT VS. NAYAN BUILDERS & DEVELOPERS, 368 ITR 722 (MUM) - ADVAITA ESTATE DEVELOPMENT P. LTD. VS. ITO, 147 ITD 693 (MUM) ` - CIT VS. LIQUID INVESTMENT & TRADING COMPANY , I.T APPEAL NO. 240 OF 2009 DATED 05/10/2010 - RUPAM MERCANTILE LTD. VS. DCIT, 91 ITD 237 (AHD)[T M] - M/S. SCHRADER DUNCAN LTD. VS. ADDL. CIT IN ITA NO.8 233/M/2010 ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 7 - ACIT VS. DHARIWAL INDUSTRIES LTD. ITA NO.580&581/PN /2009 - M/S.VENSIMAL SECURITIES LTD. VS. ACIT, ITA NO.942/M UM/2012 - ITO VS. SHRI H.B.VASWANI, ITA NO.3864/MUM/2013 - MR. JACKE SHROFF VS. ITO, ITA NO.4224/MUM/2012 - DCIT VS. NELITO SYSTEMS LTD., ITA NO.547/MUM/2013 6.5 IT WAS SUBMITTED THAT ON THIS GROUND ALONE PEN ALTY LEVIED IN RESPECT OF DISALLOWANCE OF DEPRECIATION ON THE ASSETS COVERED BY FINANCE LEASE AGREEMENT SHOULD BE DELETED. 7. ON THE OTHER HAND, LD. DR SUBMITTED THAT LD. CIT (A) HAS RIGHTLY UPHELD THE PENALTY IN VIEW OF DISALLOWANCE UPHELD BY ITAT AND RELYING UPON THE ORDER OF LD. CIT(A) IT WAS SUBMITTED THAT PENALTY IN THI S REGARD SHOULD BE UPHELD. 8. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. MUMBAI TRIBUNAL IN THE CASES RELIED U PON BY LD. DR HAS TAKEN A CONSISTENT VIEW THAT IN A CASE WHERE SUBSTANTIAL QU ESTIONS OF LAW HAS BEEN ADMITTED BY HONBLE HIGH COURT ON THE ADDITION ON W HICH CONCEALMENT PENALTY IS LEVIED THEN THE ISSUE BECAME DEBATABLE AND NO PENALTY CAN BE LEVIED UNDER SECTION 271(1)(C) OF THE ACT. SUCH VIEW HAS BEEN T AKEN AS PER THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. N AYAN BUILDERS & DEVELOPERS (SUPRA). COPY OF THIS DECISION HAS BEEN FILED AT PAGES 1 TO 3 OF THE PAPER BOOK FILED FOR CASE LAWS. THIS DECISIONS HAS BEEN FOLLOWED BY MUMBAI TRIBUNAL IN THE FOLLOWING CASES: I) IN THE CASE OF M/S. SCHRADER DUNCAN LTD. VS. ADD L. CIT IN ITA NO.8233/M/2010 DECISION DATED 1/1/2015, COPY FILED AT PAGES 114 TO 122 OF THE PAPER BOOK. OBSERVATIONS OF THE TRIBUNAL ARE A S UNDER: 2.2. WITHOUT GOING INTO MUCH DELIBERATION AND MERIT S OF THE CASE, NOW QUESTION ARISES SINCE THE SUBSTANTIAL QUESTION OF LAW WHETH ER ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE APPELLANT WAS NOT ENTITLED TO CLAIM THE LOSS OF RS.6.34 CRORE ARISING ON ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 8 CONVERSION OF UTI US 64 UNITS IN TO 6.75% TAX FREE BONDS OF UTI? HAS BEEN ADMITTED BY THE HONBLE JURISDICTIONAL HIGH COURT, VIDE ORDER DATED 19TH SEPTEMBER, 2014, NOW QUESTION ARISES WHETHER PENALT Y U/S 271(1)(C) OF THE ACT SURVIVES WHEN THE ADDITION HAS BECOME DEBATABLE? WE NOTE THAT THE HONBLE JURISDICTIONAL HIGH COURT VIDE ORDER DATED 08/07/20 14 IN THE CASE OF CIT VS M/S NAYAN BUILDERS & DEVELOPERS (ITA NO.415/2012) HELD THAT NO PENALTY IS IMPOSABLE U/S 271(1)(C) OF THE ACT. LIKEWISE, THE T RIBUNAL, IN THE CASE OF M/S NAYAN BUILDERS & DEVELOPERS PVT. LTD. (ITA NO.2379/ MUM/2009) ORDER DATED 18TH MARCH 2011, DELETED THE PENALTY. IN ANOTHER CA SE ADVAITA ESTATE DEVELOPMENT (P.) LTD. VS. ITO (2013) 40 TAXMAN.CO M 142 (MUMBAI-TRIB.) VIDE ORDER DATED 27/08/2013 DELETED THE PENALTY. IN VIEW OF THESE FACTS, WHEN THE HONBLE JURISDICTIONAL HIGH COURT HAS ADMITTED SUBS TANTIAL QUESTION OF LAW ON THE ADDITION, IT BECOMES APPARENT THAT THE ADDITION SO MADE HAS BECOME DEBATABLE. THE PENALTY WAS IMPOSED ON THE BASIS OF ADDITION SO MADE, THEREFORE, WHEN THE ADDITION ON THE BASIS OF WHICH THE PENALTY WAS IMPO SED HAS BECOME DOUBTFUL/DEBATABLE, THEREFORE, PENALTY IMPOSED U/S 271(1)(C) OF THE ACT CANNOT SURVIVE. RESPECTFULLY FOLLOWING THE HONBLE JURISDI CTIONAL HIGH COURT, THE APPEAL OF THE ASSESSEE IS ALLOWED. HOWEVER, IT IS MADE CLEAR THAT IF AT ANY STAGE, THE ORDER OF THE TRIBUNAL ON QUANTUM ADDITION IS UPHELD BY TH E HONBLE HIGH COURT, THE DEPARTMENT IS FREE TO PROCEED IN ACCORDANCE WITH LA W ON PENALTY PROCEEDINGS. FINALLY, APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION O F THE HEARING ON 17/12/2014. II) IN THE CASE OF DCIT VS. NELITO SYSTEMS LTD., ITA NO.547/MUM/2013 O RDER DATED 20/4/2015. III) IN THE CASE OF M/S. VENSIMAL SECURITIES LTD. VS. ACIT, ITA NO.942/MUM/2012 ORDER DATED 2/9/2014 . RELEVANT OBS ERVATIONS READ AS UNDER: 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND F ROM THE RECORD THAT AGAINST THE ADDITION SO MADE AND CONFIRMED BY THE TRIBUNAL ON ACCOUNT OF BAD DEBTS AMOUNTING TO RS.74,54,700/-, THE HONBLE JURISDICTI ONAL HIGH COURT VIDE ORDER DATED 30-11-2011 HAS ACCEPTED THE FOLLOWING SUBSTAN TIAL QUESTION OF LAW :- WHETHER THE TRIBUNAL WAS JUSTIFIED IN REJECTING TH E CLAIM OF BAD DEBTS UNDER SECTION 36(1)(VII) R.W.S.36(2), EVEN THOUGH T HE APPELLANT HAD DISCLOSED INSURANCE CLAIM OF RS.74,54,700/- AS INCO ME, IN THE PROFIT AND LOSS ACCOUNT UNDER THE HEAD OTHER INCOME IN THE A.Y.2003-2004 ? ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 9 WHEN THE ISSUE IS DEBATABLE AND SUBSTANTIAL QUESTI ON OF LAW HAS BEEN ACCEPTED BY THE HONBLE HIGH COURT, NO PENALTY IS LEVIABLE. THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COUR T IN THE CASE OF M/S NAYAN BUILDERS & DEVELOPERS PVT. LTD. DATED 24-7- 2014 (S UPRA), WHEREIN IT WAS CATEGORICALLY HELD THAT MERE ADMISSION OF APPEAL BY THE HIGH COURT IS SUFFICIENT TO DEBAR THE PENALTY LEVIED U/S.271(1)(C) OF THE ACT. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTFULL Y FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/ S NAYAN BUILDERS & DEVELOPERS PVT. LTD.(SUPRA), WE DIRECT TO DELETE THE PENALTY S O IMPOSED. 5. THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF M/S NAYAN BUILDERS & DEVELOPERS PVT LTD., DECIDED IN ITA NO.2379/MUM/200 9, VIDE ORDER DATED 18-3- 2011, HELD AS UNDER :- 3. IT IS, THEREFORE, ABUNDANTLY CLEAR THAT THE AD DITIONS IN RESPECT OF WHICH PENALTY WAS CONFIRMED HAVE BEEN ACCEPTED BY THE HON 'BLE BOMBAY HIGH COURT LEADING TO SUBSTANTIAL QUESTION OF LAW. WHEN THE HIGH COURT ADMITS SUBSTANTIAL QUESTION OF LAW ON AN ADDITION, IT BECO MES APPARENT THAT THE ADDITION IS CERTAINLY DEBATABLE. IN SUCH CIRCUMSTAN CES PENALTY CANNOT BE LEVIED U/S 271 (L1)(C) AS HAS BEEN HELD IN SEVERAL CASES INCLUDING RUPAM MERCANTILE VS. DCIT [(2004) 91 ITD 237 (AHD) (TM)] AND SMT.RAMILA RATILAL SHAH VS. ACFT [(1998) 60 IT] (AHD) 171]. THE ADMISS ION OF SUBSTANTIAL QUESTION OF LAW BY THE HON'BLE HIGH COURT LENDS CRE DENCE TO THE BONA FIDES OF THE ASSESSEE IN CLAIMING DEDUCTION. ONCE IT TURN S OUT THAT THE CLAIM OF THE ASSESSEE COULD HAVE BEEN CONSIDERED FOR DEDUCTI ON AS PER A PERSON PROPERLY INSTRUCTED IN LAW AND IS NOT COMPLETELY DE BARRED AT ALL, THE MERE FACT OF CONFIRMATION OF DISALLOWANCE WOULD NOT PER SE LEAD TO THE IMPOSITION OF PENALTY. SINCE THE ADDITIONS, IN RESPECT OF WHIC H PENALTY HAS BEEN UPHELD IN THE PRESENT PROCEEDINGS, HAVE BEEN HELD B Y THE HON'BLE HIGH COURT TO BE INVOLVING A SUBSTANTIAL QUESTION OF LAW , IN OUR CONSIDERED OPINION, THE PENALTY IS NOT EXIGIBLE UNDER THIS SEC TION. WE, THEREFORE, ORDER FOR THE DELETION OF PENALTY. 4. IN THE RESULT, THE APPEAL IS ALLOWED. 6. IT WAS CLARIFIED BY THE LEARNED AR THAT OUT OF T OTAL PENALTY, THE ASSESSEE HAS CONTESTED THE PENALTY IMPOSED WITH REGARD TO ADDITI ON OF BAD DEBTS OF RS.74,54,700/- AGAINST WHICH QUANTUM APPEAL HAS BEE N ADMITTED BY THE HONBLE HIGH COURT AND NOT THE PENALTY ON OTHER ADDITIONS. ACCORDINGLY, OUR CONCLUSION WITH REGARD TO PENALTY NOT LEVIABLE U/S.271(1)(C) O F THE ACT IS CONFINED TO THE ADDITION MADE ON ACCOUNT OF BAD DEBTS FOR WHICH THE HONBLE HIGH COURT HAS ADMITTED SUBSTANTIAL QUESTION OF LAW AS REPRODUCED ABOVE, AND NOT AGAINST THE OTHER PENALTY. ACCORDINGLY, OTHER PENALTY LEVIED IS BEING UPHELD AND PENALTY ATTRIBUTABLE TO BAD DEBTS IS DELETED IN TERMS OF DE CISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S NAYAN BUILDERS & DEVELOPERS PVT. LTD (SUPRA). 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 10 IV) IN THE CASE OF ITO VS. SHRI H.B.VASWANI, ITA N O.3864/MUM/2013 ORDER DATED 25/8/2014, RELEVANT OBSERVATIONS READ AS UNDE R: 2. AT THE OUTSET IT WAS POINTED OUT BY LD. AR THA T THE ISSUE RAISED BY THE REVENUE IS COVERED IN FAVOUR OF THE ASSESSEE AS THE HONBLE HIGHT COURT HAS ADMITTED THE QUESTION OF LAW IN THE QUANTUM PROCEE DINGS. HE IN THIS REGARD REFERRED TO THE ORDER OF HONBLE BOMBAY HIGH COURT DATED 14/2/2013 IN INCOME TAX APPEAL NO.1838 OF 2011, WHEREBY THEIR LORDSHIPS HAVE ADMITTED THE FOLLOWING QUESTION OF LAW IN THE QUANTUM PROCEEDIN GS. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE TRIBUNAL WAS JUSTIFIED IN TREATING THE INCOME OF TH E APPELLANT FROM THE SALE OF THE SHARES AS BUSINESS INCOME AS AGAINST INCOME FROM SHORT TERM CAPITAL GAIN DECLARED IN THE RETURN OF INCOME FILED BY THE APPELLANT? 3. LD. AR SUBMITTED THAT WHEN THE QUESTION OF LAW H AS BEEN ADMITTED IN THE QUANTUM PROCEEDINGS THEN AS PER DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. NAYAN BUILDERS & DEVELOPERS(ORDER D ATED 8/7/2014) IN I.T. APPEAL NO.415 OF 2012 NO CONCEALMENT PENALTY CAN B E LEVIED. THE OBSERVATION OF THEIR LORDSHIPS IN THE SAID DECISION ARE AS FOLLOWS AND COPY WAS PLACED ON OUR RECORD. HAVING HEARD MR. AHUJA, LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT, WE FIND THAT THIS APPEAL CANNOT BE ENTE RTAINED AS IT DOES NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. THE IMPOSIT ION OF PENALTY WAS FOUND NOT TO BE JUSTIFIED AND THE APPEAL WAS ALLOW ED. AS PROOF THAT THE PENALTY WAS DEBATABLE AND ARGUABLE ISSUE, THE TRIBU NAL REFERRED TO THE ORDER ON ASSESSEES APPEAL IN QUANTUM PROCEEDINGS A ND THE SUBSTANTIAL QUESTIONS OF LAW WHICH HAVE BEEN FRAMED THEREIN. WE HAVE ALSO PERUSED THAT ORDER DATED 27 TH SEPTEMBER 2010 ADMITTING INCOME TAX APPEAL NO.2368 OF 2009. IN OUR VIEW, THERE WAS NO CASE MA DE OUT OF IMPOSITION OF PENALTY AND THE SAME WAS RIGHTLY SET ASIDE. THE AR ISES NO SUBSTANTIAL QUESTION OF LAW, IT IS DISMISSED. NO COST. 4. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, AS THE QUESTION OF LAW IN QUANTUM PROCEEDINGS HAS ALREADY BEEN AD MITTED BY THEIR LORDSHIPS, THE ISSUE BECAME DEBATABLE AND ARGUABLE. RELYING T HE AFOREMENTIONED DECISION OF HONBLE BOMBAY HIGH COURT WE DECLINE TO INTERFER E IN THE ORDER OF LD. CIT(A) VIDE WHICH IMPUGNED CONCEALMENT PENALTY HAS BEEN DE LETED. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED 8.1 HONBLE DELHI HIGH COURT HAS ALSO TAKEN SIMI LAR VIEW IN THE CASE OF M/S. LIQUID INVESTMENT & TRADING COMPANY VIDE ORDER DATED 5/10/2010 IN ITA 240/2009. REFERENCE CAN BE MADE TO THE FOLLOWING O BSERVATIONS: ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 11 IN THE HIGH COURT OF DELHI AT NEW DELHI ITA 240/2009 THE COMMISSIONER OF INCOME TAX II.. APPELLANT VERSUS LIQUID INVESTMENT AND TRADING CO. RESPONDENT 05.10.2010 PRESENT : MR. SANJEEV SABHARWAL, ADVOCATE, FOR THE APPELLANT MR. AJAY VOHRA AND MS. KAVITA JHA, ADVOCATES, FOR THE RESPONDENT BOTH THE CIT(A) AS WELL AS THE ITAT HAVE SET ASIDE THE PENALTY IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(C) OF THE INCOME TAX A CT, 1961 ON THE GROUND THAT THE ISSUE OF DEDUCTION UNDER SECTION 14A OF THE ACT WAS A DEBATA BLE ISSUE. WE MAY ALSO NOTE THAT AGAINST THE QUANTUM ASSESSMENT WHERE UNDER DEDUCTIO N UNDER SECTION 14A OF THE ACT WAS PRESCRIBED TO THE ASSESSEE, THE ASSESSEE HAS PR EFERRED AN APPEAL IN THIS COURT UNDER SECTION 260A OF THE ACT WHICH HAS ALSO BEEN ADMITTE D AND SUBSTANTIAL QUESTION OF LAW FRAMED. THIS ITSELF SHOWS THAT THE ISSUE IS DEBATAB LE. FOR THESE REASONS, WE ARE OF THE OPINION THAT NO QUESTION OF LAW ARISES IN THE PRESE NT CASE. THIS APPEAL IS ACCORDINGLY DISMISSED 8.2 IN THIS VIEW OF THE SITUATION, AS SUBSTANTIAL Q UESTIONS OF LAW HAS ALREADY BEEN ADMITTED BY HONBLE JURISDICTIONAL HIGH COURT IN ALL THE THREE APPEALS, FOLLOWING AFOREMENTIONED DECISIONS, WE HOLD THAT CO NCEALMENT PENALTY IS LIABLE TO BE DELETED. ACCORDINGLY, TO THE EXTENT PENALTY RELATES TO DISALLOWANCE OF DEPRECIATION ON ASSETS COVERED BY FINANCIAL LEASE A GREEMENT IS DELETED. IN RESPECT OF A.Y 1993-94 AND 1994-95 THERE IS NO OTHE R DISALLOWANCE, THEREFORE, APPEALS FOR 1993-94 AND 1994-95 ARE ALLOWED. 9. IN RESPECT OF A.Y 1995-96, ONE OF THE OTHER ADD ITION IS RS.82,293/- BEING EXCESS CLAIM OF DEPRECIATION WHICH WAS CLAIMED ON V EHICLE RUNNING ON HIRE @40%. HOWEVER, DURING THE COURSE OF ASSESSMENT PR OCEEDINGS IT WAS FOUND BY THE AO THAT THERE WAS NO INCOME FROM HIRING OF VE HICLES, THEREFORE, THE CLAIM OF DEPRECIATION WAS RESTRICTED TO 20%. IN THIS MAN NER DISALLOWANCE OF RS.82,293/- WAS MADE. 9.1 THE OTHER DISALLOWANCE IS OF RS.2,44,097/- WAS MADE UNDER SECTION 37(2) OF THE ACT. THE REQUIRED DISALLOWANCE WAS TO BE MADE OF A SUM OF ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 12 RS.4,98,194/-. HOWEVER, ASSESSEE DISALLOWED 50% TH EREOF BEING A SUM OF RS.2,44,097/-. DURING THE COURSE OF ASSESSMENT PROC EEDINGS AO REQUIRED THE ASSESSEE TO EXPLAIN AS TO WHY THE ENTIRE AMOUNT SHO ULD NOT BE DISALLOWED. IT WAS SUBMITTED THAT THE CLAIM WAS MADE INADVERTENTLY AND ASSESSEE EXPRESSED ITS NO OBJECTION FOR DISALLOWANCE OF THE WHOLE AMO UNT OF RS.4,98,194/- AND THUS, DISALLOWANCE OF RS.2,44,097/- WAS MADE. 9.2 REGARDING OTHER DISALLOWANCE OF RS.22,65,536/ -, IT WAS SUBMITTED THAT THE SAID ISSUE HAS BEEN RESTORED BACK BY THE TRIBUN AL TO THE FILE OF LD. CIT(A). REFERENCE IN THIS REGARD WAS MADE TO THE ORDER OF T HE TRIBUNAL DATED 12/12/2012 IN ITA NO.7864/MUM/2004, COPY OF WHICH H AS BEEN FILED AT PAGE 262 TO 266 OF THE PAPER BOOK AND REFERENCE WAS MADE TO THE FOLLOWING OBSERVATIONS: 12. GROUND NO. 3 RELATES TO DISALLOWANCE OF SERVICE CHARGES AMOUNTING TO RS. 22,65,536/-. THIS ISSUE FINDS PLACE AT PAGE-16 OF T HE ASSESSMENT ORDER AT PARA.6.18. DURING THE COURSE OF THE SCRUTINY ASSESS MENT PROCEEDINGS, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE COMPANY H AS CLAIMED EXPENSES OF RS. 22,65,536/- UNDER THE HEAD SERVICES CHARGES P AID IN RESPECT OF SO CALLED ASSETS REQUIRED UNDER HIRE PURCHASE BASIS FROM M/ S. I.T.C. CLASSIC FINANCE LTD. AND M/S. INDBANK MERCHANT BANKING SERVICES LTD. THE AO DISALLOWED THE ENTIRE EXPENSES STATING THAT THE ENTIRE TRANSACTION OF HIR E PURCHASE AND LEASE HAS BEEN TREATED AS FINANCE TRANSACTION IN REALITY. 13. WHEN THE MATTER WAS AGITATED BEFORE THE LD. CI T(A), WE FIND THAT THE CIT(A) AT PAGE-23 OF HIS ORDER HAS NOT DECIDED THIS ISSUE ON MERIT. WE, THEREFORE, RESTORE THIS ISSUE BACK TO THE FILE OF THE LD. CIT( A). THE CIT(A) IS DIRECTED TO DECIDE THIS ISSUE BY A SPEAKING ORDER. THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9.3 IT WAS SUBMITTED BY LD. AR THAT SINCE THE MATTE R IS RESTORED BACK TO THE FILE OF LD. CIT(A) THE ISSUE REGARDING LEVY OF CONC EALMENT PENALTY ON THE ADDITION OF RS.22,65,536/- SHOULD ALSO BE RESTORED BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE SAME AFTER D ECIDING THE QUANTUM APPEAL. 9.4 IN RESPECT OF ADDITION OF EXCESS DEPRECIATI ON OF RS.82,293/- AND DISALLOWANCE UNDER SECTION 37(2) OF A SUM OF RS.2,4 4,097/-, IT WAS SUBMITTED BY LD. AR THAT ALL THE PARTICULARS WERE DULY DISCLO SED AND NO INACCURATE ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 13 PARTICULARS WERE SUBMITTED. THE DISALLOWANCE IS VE RY SMALL. THEREFORE, IT WAS SUBMITTED THAT PENALTY IN THIS REGARD SHOULD BE DEL ETED. 9.5 ON THE OTHER HAND, LD. DR RELIED ON THE ORDER P ASSED BY LD. CIT(A). 10. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTEN TIONS HAVE CAREFULLY BEEN CONSIDERED. SO FAR AS IT RELATES TO DISALLOWANCE O F DEPRECIATION CLAIMED @ 40% ON VEHICLES, WE ARE OF THE OPINION THAT NO PENALTY SHOULD BE LEVIED AS ALL THE PARTICULARS WERE SUBMITTED AND IT IS ONLY A CASE OF EXCESS DEPRECIATION CLAIMED INADVERTENTLY. SIMILARLY, FOR DISALLOWANCE OF RS.2 ,44,097/-, WE ARE OF THE OPINION THAT THIS DISALLOWANCE ALSO DOES NOT CALL F OR LEVY OF CONCEALMENT PENALTY AS IT WAS MERELY AN INADVERTENT MISTAKE ON THE PART OF THE ASSESSEE AND NO PARTICULARS OF INCOME WERE CONCEALED. 10.1 THEREFORE, ON THE ADDITION OF RS.82,293/- AND RS.2,44,097/- PENALTY IS DELETED. SO FAR AS IT RELATES TO DISALLOWANCE OF RS .22,62,536/-, THE ISSUE HAS BEEN RESTORED BACK BY THE TRIBUNAL TO THE FILE OF L D.CIT(A) FOR ADJUDICATION. THEREFORE, AFTER HEARING BOTH THE PARTIES, SINCE TH E QUANTUM HAS BEEN RESTORED BACK TO THE FILE OF LD. CIT(A), WE RESTORE THIS I SSUE REGARDING LEVY OF CONCEALMENT PENALTY ON SUCH DISALLOWANCE TO THE FIL E OF LD. CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE SAME AFTER DECIDING THE QUANTUM AS PER AFOREMENTIONED ORDER OF THE TRIBUNAL DATED 12/12/20 12 AND AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. 10.2 IN RESPECT OF A.Y 1995-96 REGARDING DISALLOWA NCE OF DEPRECATION ON PLANT AND MACHINERY RELATING TO FINANCIAL LEASE AGREEMENT , FOLLOWING AFOREMENTIONED OBSERVATION IN RESPECT OF A.Y 1993-94 AND 1994-95, WE DELETE THE PENALTY ON DISALLOWANCE OF DEPRECIATION OF RS.4,52,01,848/-. THEREFORE, APPEAL FOR A.Y 1995-96 IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.6765,6766&6767/MUM/2006 A.Y. 1993-94,1994-95&1995-96 14 10.2 BEFORE PARTING WE MAY MENTION HERE THAT WE HAV E DELETED THE CONCEALMENT PENALTY IN RESPECT OF DEPRECIATION ON T HE ASSETS COVERED BY FINANCE LEASE AGREEMENT SIMPLY ON THE GROUND THAT SUBSTANT IAL QUESTIONS OF LAW HAS BEEN ADMITTED BY HONBLE HIGH COURT AS THIS ISSUE I S COVERED BY OTHER DECISIONS OF TRIBUNAL IN WHICH HONBLE BOMBAY HIGH COURT IN THE CASE OF NAYAN BUILDERS & DEVELOPERS HAS BEEN FOLLOWED. IN THIS VIEW OF THE SITUATION, WE DO NOT CONSIDER IT NECESSARY TO GO INTO OTHER PL EAS AND ARGUMENTS OF THE ASSESSEE WHICH WERE ALSO RAISED FOR CONTESTING THE LEVY OF CONCEALMENT PENALTY. 11. TO SUM UP, APPEALS FOR 1993-94 AND 1994-95 ARE ALLOWED AND APPEAL FOR A.Y 1995-96 IS ALLOWED FOR STATISTICAL PURPOSES I N THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 29.5.2015 () *+ 29/05/2015 SD/- SD/- ( , / RAJENDRA) ( . . / I.P. BANSAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ( MUMBAI; * DATED 29/05/2015 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. .! ( ) / THE CIT(A)- 4. .! / CIT 5. /0 !12 , ' 12 , ( / DR, ITAT, MUMBAI 6. 3 / GUARD FILE. / BY ORDER, /! ! //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI . . ./ VM , SR. PS