DCIT 10(2), MUMBAI V. UNITED HELICHARTERS P.LTD, MUMBAI

ITA 6917/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3828 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 16-05-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 28-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Keywords: Business income; Double taxation relief; Bonafide belief; Deemed to accrue or arise in india; Retrospective amendment; Capital receipt
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F, BENCH MUM BAI BEFORE SHRI JASON P. BOAZ, AM AND SHRI SANDEEP GOSA IN, JM ITA NO.6917/MUM/2013 (ASSESSMENT YEAR: 2005-06) DY. COMMISSIONER OF INCOME TAX-10(2), ROOM NO.432, 4 TH FLOOR, AYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 VS. M/S. UNITED HELICHARTERS PVT LTD 238, HINDUSTAN KHOHINOOR COMPLEX, LBS MARG, VIKHROLI (WEST), MUMBAI 400 064. PAN: AAACU 3352N APPELLANT .. RESPONDENT APPELLANT BY SHRI NEIL PHILIP RESPONDENT BY NONE DATE OF HEARING: 16-05-2016 DATE OF PRONOUNCEMENT: 10-08-2016 O R D E R PER SANDEEP GOSAIN,JUDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AG AINST THE ORDER OF THE LEARNED CIT (A)-21, MUMBAI DATED 23-09 -2013 PASSED IN APPEAL NO.CIT (A) 21/IT/242/2013-14 FOR ASSESSMENT YEAR 2005-06 WHEREBY THE LEARNED CIT (A) HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE ON THE GROUND MENTIONED HEREIN BELOW:- 1.1 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF RS.30,04,700/- U/S.40(A) (I) OF THE ACT FOR NON-DEDUCTION OF TDS ON PAYMENTS MADE FOR TRAINING OF PILOTS AND STAFF. ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 2 1.2 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE 'AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT THE SAID PAYMENT TOWARDS TRAINING EXPENSES PAID TO NON- RESIDENTS IS SQUARELY COVERED U/S.9(1)(VII) R.W. EXPLANATION 2 AS FEES FO R TECHNICAL SERVICES'. 1.3 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE'S CASE IS NOT COVERED BY EXCEPTION PROVIDED IN CLAUSE (B) TO SEC. 9(1)(VII) OF THE ACT AND THAT THE EXPLANATION INTRODUCED BY THE FINA NCE ACT 2010 IS A RETROSPECTIVE AMENDMENT W.E.F. 1/6/1976. 2.1 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS .43,90,000/- MADE BY THE AO ON ACCOUNT OF DISALLOWANCE IX] S.40(A)(IA ) OF THE ACT DUE TO NON-DEDUCTION OF TDS ON THE MOBILIZATION EXPENSE S PAID IN FOREIGN CURRENCY. 2.2 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN NOT APPRECIATING THAT, DURI NG ASSESSMENT, ASSESSEE CLAIMED BEFORE AO THAT SUCH PAYMENT IS EXE MPT U/S.10(15A) AND AS THE SAID CLAIM WAS REJECTED BY T HE AO ON MERITS, THE ASSESSEE TOOK A STAND BEFORE THE LD.CIT (A) THAT IT IS SIMPLY IN THE NATURE OF REIMBURSEMENT AND NO TDS OU GHT TO HAVE BEEN MADE. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, VARY, OMI T OR SUBSTITUTE ANY OF THE AFORESAID GROUNDS OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF APPEAL . THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE R ESTORED.' 2. THIS APPEAL WAS FIXED FOR HEARING TODAY AND WAS CALLED FOR SEVERAL TIMES BUT, NOBODY APPEARED ON BEHALF OF THE ASSESSE E AND EVEN; NO APPLICATION FOR ADJOURNMENT OF THE CASE WAS FILED. AS PER THE RECORDS IT IS REVEALED THAT NONE APPEARED ON BEHALF OF THE ASSESS EE ON THE PREVIOUS DATE OF HEARING ALSO THOUGH NOTICE WAS ALREADY ISSU ED BY RPAD. THEREFORE, IT SEEMS THAT THE ASSESSEE IS NOT INTERE STED TO CONTEST THE ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 3 PRESENT APPEAL. THE LEARNED DR REPRESENTING THE REV ENUE IS PRESENT BEFORE THE BENCH AND SUBMITTED THAT HE WISH TO CONT EST THE SAME. THEREFORE, WE PROCEED TO DISPOSE OF THE APPEAL AFTE R HEARING THE LEARNED DR AND PERUSAL OF THE MATERIALS AVAILABLE ON RECORD . 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FIRM ENGAGED IN THE BUSINESS OF PROVIDING HELICOPTER SERVICES. THE HELICOPTERS WERE ACQUIRED BY THE ASSESSEE ON LEASE FROM FOREIGN PRIN CIPLES. THE RETURN OF INCOME FOR A.Y. 2005-06 WAS FILED BY THE ASSESSEE O N 31.10.2005 DECLARING TOTAL INCOME OF RS.3,55,92,645/-. THE RET URN WAS ACCOMPANIED BY TAX AUDIT REPORT U/S 44AB OF THE INCOME TAX ACT ALONG WITH OTHER RELEVANT ANNEXURE/SCHEDULES. THE RETURN OF INCOME W AS PROCESSED U/S 143(1) AND THEREAFTER THE CASE WAS SELECTED FOR SCR UTINY AND AFTER SERVING STATUTORY NOTICES AND SEEKING REPLY FROM THE ASSESS EE. THE AO DISALLOWED TRAINING EXPENSES PAID TO THREE FOREIGN PARTIES AMO UNTING TO RS.30,04,700/- U/S 40(A)(I) OF THE I.T. ACT,1961 ON THE GROUND THAT AS THE ASSESSEE WAS LIABLE TO DEDUCT TDS ON SUCH PAYMENTS BUT ASSESSEE HAS FAILED TO DO SO. IN ADDITION DISALLOWANCE OF MOBILI ZATION EXPENSES PAID IN FOREIGN CURRENCY OF RS.43,90,000/- WERE ALSO DISALL OWED U/S 40(A)(I) OF THE I.T. ACT,1961 VIDE ORDER OF ASSESSMENT DATED 12.12. 2008. AGGRIEVED BY THE AFORESAID ORDER OF THE AO, THE ASS ESSEE PREFERRED APPEAL BEFORE THE LEANED CIT (A) AND THE LEARNED CI T (A) AFTER CONSIDERING THE CASE HAS ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 4 THE ADDITIONS VIDE ITS ORDER DATED 23.09.2013. AGGR IEVED BY THE ORDER OF THE LEARNED CIT (A) THE REVENUE IS NOW IN APPEAL BE FORE US ON THE AFOREMENTIONED GROUNDS. GROUND NO.1.1, 1.2 & 1.3 4. SINCE ALL THE GROUNDS RAISED BY THE ASSESSEE ARE INTER-CONNECTED AND INTER-RELATED THEREFORE WE THOUGHT IT FIT TO DI SPOSE OFF THE SAME THROUGH THE PRESENT COMMON ORDER. THE SAID GROUND H AS BEEN DEALT BY CIT(A) IN PARA NUMBER 2.1 & 2.2 AND THE SAME IS REP RODUCED HEREIN BELOW FOR THE SAKE OF REFERENCE: 2.1 THE FACTS OF THE / WERE THAT THE APPELLANT IS ENGAGED IN THE BUSINESS OF PROVIDING HELICOPTER SERVICE ON HIRE. T HE A.D. DURING THE YEAR UNDER CONSIDERATION HAD DISALLOWED TRAININ G EXPENSES PAID TO CHC HELICOPTERS INTERNATIONAL RS.2,86,364/- (ANA DA), BELL TEXTRON RS.12,87,990/- AND FLIGHT SAFETY INTERNATIO NAL RS.14,30,346/- (USA) ON THE GROUND THAT TAX WAS NOT DEDUCTED AT SOURCE. 2.2 I HAVE CONSIDERED THE FACTS OF THE CASE. THIS I SSUE HAS COME INTO CONSIDERATION IN THE ASSESSEE'S OWN CASE WHERE IN THE HONBLE ITAT, MUMBAI IN PARA NO.9 HELD AS UNDER: 9. THEREFORE, IN VIEW OF THE LEGAL PROPOSITION DISC USSED BY THE AHMEDABAD BENCH (SUPRA), WE AGREE WITH THE CONTENTI ON OF THE ASSESSEE THAT THE ASSESSEE HAS ACTED UNDER BONAFIDE BELIEF THAT NO TAX WAS TO BE DEDUCTED AT SOURCE ON THESE PAYMENTS. APART FROM THE BONAFIDE BELIEF WE FURTHER NOTED THAT AS PER PA RA 4(B) OF ARTICLE 12 OF INDO-US DTAA FEES FOR INCLUDED SERVICES MEANS IF SUCH SERVICES MADE AVAILABLE TECHNICAL KNOWLEDGE, EXPERI ENCE, SKILL, KNOW-HOW, OR PROCESSES, OR CONSISTS OF THE DEVELOPM ENT AND TRANSFER OF A TECHNICAL PLAN OR TECHNICAL DESIGN. T HE TRAINING IN THE CASE IN HAND WAS GIVEN TO THE PILOTS AND OTHER STAF F AS PER THE REQUIREMENT OF THE DGCA RULES THEREFORE; IT WAS ONL Y A PART OF THE ELIGIBILITY OF THE PILOTS AND OTHER STAFF FOR WORKI NG IN THE INDUSTRY OF AVIATION AND SUCH TRAINING WOULD NOT FALL UNDER THE TERM 'SERVICE MAKE AVAILABLE'. THE DECISIONS RELIED UPON BY THE L D. DR ARE ON THE TAXABILITY OF THE INCOME AND IN THE HAND OF THE NON RESIDENT IN VIEW OF THE RETROSPECTIVE AMENDMENT THEREFORE THE S AID PRINCIPLE CANNOT BE APPLIED WHILE DECIDING THE ISSUE OF DISAL LOWANCE U/ S.40(A)(I). IN VIEW OF THE ABOVE DISCUSSION AND THE FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE CONSIDERED OPINION THAT THE ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 5 DISALLOWANCE OF U/ S. 40(A)(I) IS NOT JUSTIFIED AND ACCORDINGLY THE SAME IS DELETED.' FOLLOWING THE ABOVE DECISION, THE ADDITION MADE BY A.D. IS DELETED. THIS GROUND OF APPEAL IS ALLOWED. 5. WE HAVE HEARD THE LEARNED DR AND ALSO PERUSED TH E MATERIALS PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY TH E REVENUE AUTHORITIES. WE ARE OF THE CONSIDERED VIEW THAT LD. CIT(A) WHILE ADJUDICATING THE APPEAL HAS FOLLOWED THE DECISION O F HONBLE ITAT IN ASSESSEES OWN CASE FOR A.Y. 2006-07 AND A.Y.2007-0 8. THE CIT(A) WHILE FOLLOWING THE ITATS DECISION HAS DELETED THE ADDITION MADE BY AO. WE HAVE ALSO PERUSED THE ORDERS PASSED BY HONBLE I TAT IN ITA NO. 5136/MUM/2011 FOR A.Y.2006-07 AND ITA NO.5135/MUM/2 011 FOR A.Y. 2007-08. WE FIND THAT HONBLE ITAT IN THE AFORE MEN TIONED APPEALS HAVE CONSIDERED THE SAID GROUND IN DETAIL IN PARA NO.8&9 AND THE SAME IS REPRODUCED HEREIN BELOW: 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WE LL AS RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFICER HAS DISALLOWED THE PAYMENT IN QUESTION AS PER THE PROVISIONS OF SE CTION 9(1)(VII) WITHOUT CONSIDERING THE PROVISIONS OF DTAA. THE CIT (A) HAS ALSO RELIED UPON THE RETROSPECTIVE AMENDMENT BROUGHT TO THE STATUTE BY FINANCE ACT 2010 WHEREBY THE EXPLANATION HAS BEEN I NTRODUCED. THERE IS NO DISPUTE ON THE POINT THAT PRIOR TO THE ASSESSMENT YEAR 2006-07 THERE IS NO DISALLOWANCE BY THE AO U/S 40(A )(I). THE RETROSPECTIVE AMENDMENT BROUGHT BY FINANCE ACT 2010 WAS NOT IN EXISTENCE WHEN THE ASSESSEE MADE THE PAYMENTS. THER EFORE, IT CANNOT BE RULED OUT THAT THE ASSESSEE HAS ACTED UND ER BONAFIDE BELIEF THAT NO TDS WAS REQUIRED TO BE DEDUCTED ON S UCH PAYMENT. IN VIEW OF THE FACT THAT THERE WAS NO SUCH DISALLOW ANCE MADE PRIOR TO THE ASSESSMENT YEAR 2006-07 AND IT IS NOT THE CA SE OF THE ASSESSMENT OF INCOME IN THE HAND OF THE NON-RESIDEN T RECIPIENT OF THE AMOUNT BUT IT IS A CASE OF DISALLOWANCE OF THE CLAIM OF EXPENDITURE CLAIMED BY THE ASSESSEE. AT THE TIME OF SUCH PAYMENT THE PROVISIONS RELIED UPON BY THE CIT(A) WAS NOT IN EXISTENCE. THUS, THE ASSESSEE WAS NOT EXPECTED TO DO SOMETHING WHICH WERE IMPOSSIBLE TO PERFORM. THE AHMEDABAD BENCH OF THIS TRIBUNAL IN ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 6 CASE OF STERLING ABRAIVE LTD. VS ACIT (SUPRA) HAS E XTENSIVELY DISCUSSED THIS ISSUE IN PARA 8 TO 11 AS UNDER: '8. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT BY AMENDMENT IN THE FINANCE ACT, 2007, THE LEGISLATURE INSERTED THE EXPLANATION RETROSPECTIVEL Y WITH RETROSPECTIVE EFFECT FROM 1- 6-1976 TO SECTION 9(2) OF THE ACT, WHEREAS THE ASSESSMENT YEAR INVOLVED IS 2004-0 5 RELEVANT TO PREVIOUS YEAR 2003-04 AND IT IS IMPOSSI BLE FOR THE ASSESSEE TO DEDUCT TAX IN THE FINANCIAL YEAR 1- 4-2003 TO 31-3-2004, WHEN THE OBLIGATION TO DEDUCT TDS WAS NOT ON THE ASSESSEE DURING THAT PERIOD. THE PROVISION O F SECTION 9 PROVIDES FOR SITUATIONS WHERE INCOME IS D EEMED TO ACCRUE OR ARISE IN INDIA TO A NON-RESIDENT. WE F IND THAT THE LEGISLATURE VIDE FINANCE ACT, 1976, A SOURCE RU LE WAS PROVIDED IN SECTION 9 THROUGH INSERTION OF CLAUSES (VL. [VI) AND (VII) IN SUB-SECTION (1) FOR INCOME BY WAY OF I NTEREST, ROYALTY OR FEES FOR TECHNICAL SERVICES RESPECTIVELY AND THE INTENTION OF INTRODUCING THE SOURCE RULE WAS TO BRI NG TO TAX INTEREST, ROYALTY AND FEES FOR TECHNICAL SERVICES, BY CREATING A LEGAL FICTION IN SECTION 9, EVEN IN CASE S WHERE SERVICES ARE PROVIDED OUTSIDE INDIA AS LONG AS THEY ARE UTILIZED IN INDIA BUT THE HON 'BLE SUPREME COURT IN THE CASE OF ISHIKAWAJMA-HARIMA HEAVY INDUSTRIES LTD. (SUPRA) HELD THAT DESPITE THE DEEMING FICTION IN SE CTION 9, FOR ANY SUCH INCOME TO BE TAXABLE IN INDIA, THERE M UST BE SUFFICIENT TERRITORIAL NEXUS BETWEEN SUCH INCOME AN D THE TERRITORY OF INDIA. IT FURTHER HELD THAT FOR ESTABL ISHING SUCH TERRITORIAL NEXUS, THE SERVICES HAVE TO BE RENDERED IN INDIA AS WELL AS UTILIZED IN INDIA. ACCORDING TO THE LEGI SLATURE THIS INTERPRETATION WAS NOT IN ACCORDANCE WITH THE LEGISLATIVE INTENT THAT THE SITUS OF RENDERING SERV ICE IN INDIA IS NOT RELEVANT AS LONG AS THE SERVICES ARE U TILIZED IN INDIA AND THEREFORE, TO REMOVE DOUBTS REGARDING THE SOURCE RULE, AND EXPLANATION WAS INSERTED BELOW SUB - SECTION (2) OF SECTION 9 WITH RETROSPECTIVE EFFECT FROM 1-6- 1976 VIDE FINANCE ACT, 2007. THE EXPLANATION SOUGHT TO CLARIFY THAT WHERE INCOME IS DEEMED TO ACCRUE OR AR ISE IN INDIA UNDER CLAUSES (V), (VI) AND (VII) OF SUB- SEC TION (1) OF SECTION 9, SUCH INCOME SHALL BE INCLUDED IN THE TOT AL INCOME OF THE NON-RESIDENT, REGARDLESS OF WHETHER T HE NON- RESIDENT HAS A RESIDENCE OR PLACE OF BUSINESS OR BUSINESS CONNECTION IN INDIA. EVEN AFTER THAT, THE HON 'BLE KARNATAKA HIGH COURT, IN A RECENT JUDGMENT IN THE C ASE OF JINDAL THERMAL POWER CO. LTD. V. DY. CLT (TDS) [201 0} 321 ITR 31 HAS HELD THAT THE EXPLANATION, IN ITS PR ESENT FORM, DOES NOT DO AWAY WITH THE REQUIREMENT OF REND ERING OF SERVICES IN INDIA FOR ANY INCOME TO BE DEEMED TO ACCRUE OR ARISE TO A NON-RESIDENT UNDER SECTION 9. IT HAS BEEN HELD THAT ON A PLAIN READING OF THE EXPLANATIO N, THE ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 7 CRITERIA OF RENDERING SERVICES IN INDIA AND THE UTI LIZATION OF THE SERVICE IN INDIA LAID DOWN BY THE SUPREME COURT IN ITS JUDGMENT IN THE CASE OF ISHIKAWAJMA-HARIMA HEAVY INDUSTRIES LTD. (SUPRA) REMAINS UNTOUCHED AND UNAFF ECTED BY THE EXPLANATION. FURTHER THE LEGISLATURE VIDE FI NANCE BILL, 2010 IN ORDER TO REMOVE ANY DOUBT ABOUT THE LEGISLATIVE INTENT OF THE AFORESAID SOURCE RULE, SU BSTITUTED IN PLACE OF THE EXISTING EXPLANATION A NEW EXPLANAT ION TO SPECIFICALLY STATE THAT THE INCOME OF A NON- RESIDE NT SHALL BE DEEMED TO ACCRUE OR ARISE IN INDIA UNDER CLAUSE (V) OR CLAUSE (VI) OR CLAUSE (VII) OF SUB-SECTION (1) OF S ECTION 9 AND SHALL BE INCLUDED IN HIS TOTAL INCOME, WHETHER OR NOT, (A) THE NON-RESIDENT HAS A RESIDENCE OR PLACE OF BU SINESS OR BUSINESS CONNECTION IN INDIA,' OR (B) THE NON-RESIDENT HAS RENDERED SERVICES IN INDIA . THIS AMENDMENT WAS MADE RETROSPECTIVELY FROM 1-6-19 76 AND WILL ACCORDINGLY, APPLY IN RELATION TO THE ASSE SSMENT YEAR 1977- 78 AND SUBSEQUENT YEARS. 9. IN VIEW OF THE ABOVE FACTS AND LEGAL POSITION, W HETHER THE ASSESSEE CAN BE ASKED TO DO IMPOSSIBLE ACT, I.E., T O DEDUCT TAX FOR THE PAST PERIOD. WITH THE INSERTION OF THE EXPLANAT ION RETROSPECTIVELY BY THE FINANCE ACT, 2007 WITH RETROSPECTIVE EFFECT FROM 1-6-1976 TO SECTION 9(2) OF THE ACT, WHEREAS THE ASSESSMENT YEA R INVOLVED IS 2004-05 RELEVANT TO PREVIOUS YEAR 2003 -04, IT IS I MPOSSIBLE FOR THE ASSESSEE TO DEDUCT TAX IN THE FINANCIAL YEAR 1-4-20 03 TO 3 1-3-2004, WHEN THE OBLIGATION TO DEDUCT TDS WAS NOT ON THE AS SESSEE DURING THAT PERIOD. THE ARGUMENT CANVASSED BY THE LD. COUN SEL ON THE BASIS OF A LEGAL MAXIM LEX NON COGIT AD IMPOSSIBILI A MEANING THEREBY THAT THE LAW CANNOT POSSIBLY COMPEL A PERSO N TO DO SOMETHING WHICH IS IMPOSSIBLE TO PERFORM. THIS MAXI M IS ACCEPTED BY DIFFERENT COURTS OF THIS COUNTRY, INCLUDING THE HON 'BLE SUPREME COURT IN THE CASE OF KRISHNASWAMY S. PD. V. UNION O F INDIA [2006J 281 ITR 305 MADE THE FOLLOWING OBSERVATIONS IN RELA TION TO THE PROVISIONS OF CHAPTER XX-C OF THE ACT. 'THE MAXIMUM OF EQUITY, NAMELY, ACTUS CURIAE NEMINE M GRAVABIT - AN ACT OF COURT SHALL PREJUDICE NO MAN, IS FOUNDED UPON JUSTICE AND GOOD SENSE WHICH SERVES A SAFE AND CERTAIN GUIDE FOR THE ADMINISTRATION OF LAW. THE OT HER RELEVANT MAXIM IS, LEX NON COGIT AD IMPOSSIBITIE - THE LAW D OES NOT COMPEL A MAN TO DO WHAT HE CANNOT POSSIBLY PERFORM. THE LAW ITSELF AND ITS ADMINISTRATION IS UNDERSTOOD TO DISCLAIM AS IT DOES IN ITS GENERAL APHORISMS, ALL INTENTION OF COM PELLING IMPOSSIBILITIES, AND THE ADMINISTRATION OF LAW MUST ADOPT THAT GENERAL EXCEPTION IN THE CONSIDERATION OF PARTICULA R CASES. (SEE U.P.5.R. T.E V. IMTIAZ HUSSAIN [2006J 1 SCC 38 0, ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 8 SHAIKH SALIM HA;I ABDUL KHAGUMSAB V. KUMAR [2006J 1 SCC 46, MOHAMMAD GAZI V. STATE OF MP [2000J 4 SCC 3 42 AND GURSHARAN SINGH V. NEW DELHI MUNICIPAL COMMITTE E [1996J 2 SCC 459.' SIMILARLY, WHILE DEALING WITH A QUESTION AS TO WHET HER AN ASSESSEE CAN BE PENALIZED FOR FAILURE TO CARRY OUT AN ACT PR IOR TO ITS INCORPORATION THE APEX COURT IN THE CASE OF LITE IN SURANCE CORPORATION OF INDIA V. C/T [1996J 219 ITR 410 MADE FOLLOWING OBSERVATIONS. '11. IT IS OBVIOUS THAT IN THE SURPLUS OR DEFICIT I N ANY INTER- VALUATION PERIOD RELATING TO THE CORPORATION WHICH CAME TO BE FORMED ONLY ON THE APPOINTED DAY IN 1956, THIS AMOU NT COULD NOT BE REFLECTED SINCE IT RELATED TO A PERIOD PRIOR TO THE FORMATION OF THE CORPORATION. THE LAW DOES NOT CONT EMPLATE OR REQUIRE THE PERFORMANCE OF AN IMPOSSIBLE ACT - L EX NON COGIT AD IMPOSSIBILIE. IT IS NOW TO BE SEEN WHETHER THE EXPRESSION 'INCLUDED THEREIN' IN RULE 2(L)(B) IS AL ONE SUFFICIENT TO NEGATIVE THE LOGICAL LEGAL EFFECT OF SECTION 7 O F THE LLC ACT. WHILE DEALING WITH QUESTION AS TO WHETHER AN ASSESS EE CAN BE LIABLE TO PAY INTEREST FOR FAILURE TO PAY ADVANCE T AX DURING THE YEAR WHEN THE LIABILITY TO PAY TAX HAD ARISEN ON ACCOUNT OF AMENDMENT TO LAW WHICH TOOK PLACE AFTER THE END OF THE YEAR, HON 'BLE MADRAS HIGH COURT IN THE CASE OF OT V. REVATHI EQUIPMENT L TD. [2008] 298 ITR 67, REPRODUCED AND THEREAFTER APPROVED THE REAS ONING CONTAINED IN THE FOLLOWING PASSAGE OF THE TRIBUNAL ORDER. WE HAVE NO DOUBT IN OUR MIND THAT THE LEVY OF INTER EST UNDER SECTIONS 234B AND 234C ARE OF MANDATORY NATURE, BUT AT THE SAME TIME, IF WE READ SECTIONS 234B AND 234C CAREFULLY, WE FIND THAT SUCH LIABILITY IS FASTENED TO THOSE ASSESSEES WHO A RE LIABLE TO PAY ADVANCE TAX. NOW, LET US SEE WHO ARE LIABLE TO PAY ADVANCE TAX AND HOW. SECTIONS 207 AND 208 READ AS UNDER: '207. TAX SHALL BE PAYABLE IN ADVANCE DURING ANY FI NANCIAL YEAR, IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 208 TO 2 19 (BOTH INCLUSIVE), IN RESPECT OF THE TOTAL INCOME OF THE A SSESSEE WHICH WOULD BE CHARGEABLE TO TAX FOR THE ASSESSMENT YEAR IMMEDIATELY FOLLOWING THAT FINANCIAL YEAR, SUCH INCOME BEING HE REAFTER IN THIS CHAPTER REFERRED TO AS 'CURRENT INCOME'. 208. ADVANCE TAX SHALL BE PAYABLE DURING A FINANCIA L YEAR IN EVERY;- A CASE WHERE THE AMOUNT OF SUCH TAX PAYABLE BY THE ASSESSEE DURING THAT YEAR, AS COMPUTED IN ACCORDANCE WITH TH E PROVISIONS OF THIS CHAPTER, IS FIVE THOUSAND RUPEES OR MORE. ' 7. A COMBINED READING OF THE ABOVE PROVISIONS MAKES IT CLEAR THAT THE ASSESSEE HAS TO PAY TAXES IN ADVANCE IN RESPECT OF THE TOTAL ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 9 INCOME OF THE ASSESSEE, WHICH WOULD BE CHARGEABLE I N A PARTICULAR ASSESSMENT YEAR. NOW BEFORE INTRODUCTION OF SECTION 35DDA, THE LEGAL DICTUM WAS VERY CLEAR THAT THE ASSESSEE COULD CLAIM EXPENDITURE INCURRED ON ACCOUNT OF PAYMENT MADE FOR THE VRS BY THE ASSESSEE IN VIEW OF THE BINDING DECISIONS OF TH E HON 'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. GEO RGE OAKES LTD. [1992] 197 ITR 288 (MAD.) AND OT V. SIMPSON AND CO. LTD. (NO.2) [1998]230 ITR 794 (MAD.). IN BOTH THE DECISIONS, IT WAS CLEARLY LAID DOWN BY THE HON 'BLE JURISDICTIONAL HIGH COURT THAT PAYMENTS TO EMPLOYEES UNDER THE VRS WERE IN THE NATURE OF BUSIN ESS EXPENDITURE AND WAS DEDUCTIBLE UNDER SECTION 37. TH EREFORE, TILL THE INTRODUCTION OF NEW PROVISIONS UNDER SECTION 35DDA, THE ASSESSEE COULD HAVE ESTIMATED THE INCOME LEGITIMATELY AFTER REDUCING THE EXPENDITURE INCURRED ON THE VR5. IT IS A COMMON KNO WLEDGE THAT THE FINANCE BILL IS INTRODUCED ON FEBRUARY 28, 2001 , AND THE SAME IS MADE INTO THE ACT AFTER PASSING THE 8ILL IN BOTH THE HOUSES OF PARLIAMENT AND RECEIVING THE ASSENT OF THE HON 'BLE PRESIDENT OF INDIA SOME WHERE IN MAYOR JUNE, WHICH MEANS TILL TH AT DATE NO ASSESSEE CAN VISUALIZE THAT A NEW LIABILITY WOULD B E FASTENED TO HIM. NORMALLY, NEW PROVISIONS ARE INTRODUCED WITH E FFECT FROM THE NEXT ASSESSMENT YEAR, BUT THIS PROVISION UNDER SECT ION 35DDA WAS INTRODUCED BY PARLIAMENT IN ITS WISDOM WITH EFFECT FROM APRIL 1, 2001, I. E., THE SAME YEAR AND THAT IS WHY DIFFICUL TY HAS ARISEN FOR VISUALIZING THE LIABILITY AND THE ASSESSEE COULD NO T DEDUCT SUCH EXPENDITURE. IN FACT IN ALMOST IDENTICAL CIRCUMSTAN CES IN THE THIRD MEMBER DECISION BY THE DELHI BENCH IN THE CASE OF H ARYANA WAREHOUSING CORPORATION V. DEPUTY OT [2001J 252 ITR (AT) 34 IT WAS HELD THAT IN SUCH SITUATIONS THE LEGAL DICTUM A D IMPOSSIBILIA WOULD BE ATTRACTED. THE SIMPLE MEANING OF THIS DICT UM IS THAT 'LAW CANNOT COMPEL YOU TO DO THE IMPOSSIBLE'. IN THE CAS E BEFORE US ALSO, THE ASSESSEE COULD NOT HAVE VISUALIZED TILL T HE LAST INSTALMENT OF ADVANCE TAX, I.E., MARCH 15, 2001, THAT IT WOULD NOT BE ENTITLED TO DEDUCT THE VRS PAYMENTS. THEREFORE, THE ASSESSEE CO ULD NOT HAVE DONE ANYTHING OTHER THAN TO ESTIMATE THE LIABILITY TO PAY ADVANCE TAX ON THE BASIS OF EXISTING PROVISIONS. WE ARE OF THE CONSIDERED OPINION THAT IN SUCH SITUATION, IT CANNOT BE SAID T HAT THE ASSESSEE WAS LIABLE TO PAY ADVANCE TAX. ONCE WE COME TO THE CONCLUSION THAT THE ASSESSEE WAS NOT LIABLE TO PAY ADVANCE TAX , THERE IS NO QUESTION OF CHARGING TAX UNDER SECTIONS 2348 AND 23 4C. IN SIMILAR CIRCUMSTANCES IN THE CASE OF PRIYANKA OVERSEAS LTD. V. DEPUTY OT [2001J 79 ITD 353 (DELHI) WHERE THE ASSESSEE HAD TR EATED THE RECEIPT OF CASH ASSISTANCE AS CAPITAL RECEIPTS, WHI CH WAS SUBSEQUENTLY AMENDED TO BE BUSINESS RECEIPT BY THE FINANCE ACT, 1990, IT WAS HELD THAT IN SUCH CASES INTEREST UNDER SECTIONS 2348 AND 234C WAS NOT CHARGEABLE. IN THESE CIRCUMSTANCES , WE THINK THAT THE ASSESSEE WAS NOT LIABLE TO PAY ADVANCE TAX AND THEREFORE LEVY OF INTEREST UNDER SECTIONS 2348 AND 234 C IS N OT JUSTIFIED. FURTHER, IT IS PERTINENT TO NOTE THAT THE ASSESSEE BY WAY OF ABUNDANT CAUTION DEPOSITED A SUM OF RS. 90,00,000 ON AUGUST 6, 2001, I.E., MUCH BEFORE THE DUE DATE FILING OF THE RETURN, WHIC H ALSO PROVES THE BONA FIDE CREDENTIALS OF THE ASSESSEE. IN THESE CIR CUMSTANCES, WE ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 10 SET ASIDE THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) AND DELETE THE LEVY OF INTEREST UNDER SEC TIONS 2348 AND 234C.' 1O. WHILE DEALING WITH THE QUESTION AS TO WHETHER A N ASSESSEE CAN BE FAULTED FOR NOT DECLARING THE AMOUNT OF CAPITAL GAI N ON ACQUISITION OF LAND WHEN THE AMOUNT OF COMPENSATION ITSELF IS NOT DETER MINED HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. PREM KU MAR [2008] 169 TAXMAN 351 HELD AS FOLLOWS: 'LEX NON COGIT AD IMPOSSIBILIE IS AN AGE OLD MAXIM MEANING THAT THE LAW DOES NOT COMPEL A MAN TO DO WHICH HE CANNOT POSSIBLY PERFORM. REQUIRING THE ASSESSEE TO FILE A PROPER AN D COMPLETE RETURN BY INCLUDING THE INCOME UNDER THE HEAD 'CAPI TAL GAIN' WOULD BE IMPOSSIBLE FOR THE ASSESSEE, IN CASES OF THE NAT URE REFERRED ABOVE. ' IN THE CASE OF VL.S. FINANCE LTD. V CLT [20Q7J 289 ITR 286 HON 'BLE DELHI HIGH COURT WAS CONCERNED WITH THE QUESTI ON AS TO WHETHER ASSESSMENT PROCEEDINGS WERE WITHIN THE PERI OD OF LIMITATION IN VIEW OF THE FACT THAT SPECIAL AUDIT, WHICH WAS TO PRECEDE THE ASSESSMENT ORDER WAS STAYED, FOR SOME TIME BY T HE ORDER OF THE COURT. IN THIS CONNECTION, THE COURT NOTED AS FOLLO WS. 'IN RAJ KUMAR DEY V. TARAPADA DEY AIR 1987 SC 2195, THE SUPREME COURT EXAMINED THE SCOPE OF A STAY ORDER ON CALCULATION OF TIME/LIMITATION. IN THIS CASE, AN AWARD COULD NO T BE REGISTERED WITHIN THE TIME STIPULATED BY THE REGISTRATION ACT OWING TO AN INTERIM INJUNCTION AND AN ORDER DIRECTING THE AWARD TO BE D EPOSITED IN COURT. THE SUPREME COURT ALLOWED THE ENTIRE PERIOD DURING WHICH THE STAY ORDER WAS IN OPERATION TO BE EXCLUDED WHIL E APPLYING THE MAXIM LEX NON COGIT AD IMPOSSIBITIE OR THE LAW, DOE S NOT COMPEL A MAN TO DO THAT WHICH HE CANNOT POSSIBLY PERFORM. ' IN THE CASE OF ESCORTS LTD. V. CLT [2002J 257 ITR 4 68, HON'BLE DELHI HIGH COURT WAS CONCERNED WITH CLAIM OF AN ASSESSEE FOR GRANT OF REFUND UNDER SECTION 244 OF THE ACT, WHICH WAS DENI ED TO AN ASSESSEE BY THE REVENUE ON THE GROUND THAT THE ASSE SSEE HIMSELF WAS RESPONSIBLE FOR DELAY OF REFUND, AND THEREFORE CANNOT CLAIM THE AMOUNT OF INTEREST. WHILE CONSIDERING THE RIGHTS OF THE ASSESSEE TO CLAIM INTEREST, THE DELHI HIGH COURT HELD AS FOLLOW S: 'LEX NON COGIR AD IMPOSSIBITIE' IS A WELL-KNOWN MAX IM. IT MEANS THE LAW DOES NOT COMPEL A MAN TO DO THAT WHICH HE CANNO T POSSIBLY PERFORM. IF THE ASSESSING OFFICER COULD NOT PERFORM HIS DUTIES TO COMPLETE THE ORDER OF ASSESSMENT IN THE ABSENCE OF ANY EVIDENCE FURNISHED BY THE ASSESSEE, THE DEPARTMENT CANNOT BE BLAMED THEREFORE. ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 11 A LAW CANNOT BE INTERPRETED IN VACUUM. IT HAS TO BE INTERPRETED HAVING REGARD TO THE FACTS AND CIRCUMSTANCES INVOLV ED IN EACH CASE.' 11. WE FIND FROM THE ABOVE LEGAL POSITION AND FACTS OF THE CASE THAT THE ASSESSEE ACTED BONA FIDE IN CONFORMITY WITH THE PROVISION OF ACT AND THE LEGAL POSITION AS ENUMERATED BY HON 'BLE AP EX COURT IN THE CASE OF ISHIKAWAJMA-HARIMA HEAVY INDUSTRIES LTD. (S UPRA). AT THE RELEVANT POINT OF TIME IT WAS IMPOSSIBLE ON THE PAR T OF THE ASSESSEE TO DEDUCT TAX ON THE INCOME OF NON- RESIDENT. ADMIT TEDLY, UP TO THE INSERTION OF EXPLANATION VIDE FINANCE ACT, 2007, TH E ASSESSEE WAS UNDER BONA FIDE BELIEF NOT TO DEDUCT TAX AND ACCORD INGLY HE ACTED AS PER LAW. ACCORDINGLY WE ALLOW THE APPEAL OF THE ASSESSEE. 9. THEREFORE, IN VIEW OF THE LEGAL PROPOSITION DISC USSED BY THE AHMEDABAD BENCH (SUPRA) WE AGREE WITH THE CONTENTIO N OF THE ASSESSEE THAT THE ASSESSEE HAS ACTED UNDER BONAFIDE BELIEF THAT NO TAX WAS TO BE DEDUCTED AT SOURCE ON THESE PAYMENTS. APART FROM THE BONAFIDE BELIEF WE FURTHER NOTED THAT AS PER PA RA 4(B) OF ARTICLE 12 OF INDO-US DTAA FEES FOR INCLUDED SERVICES MEANS IF SUCH SERVICES MADE AVAILABLE TECHNICAL KNOWLEDGE, EXPERI ENCE, SKILL, KNOW-HOW, OR PROCESSES, OR CONSISTS OF THE DEVELOPM ENT AND TRANSFER OF A TECHNICAL PLAN OR TECHNICAL DESIGN. T HE TRAINING IN THE CASE IN HAND WAS GIVEN TO THE PILOTS AND OTHER STAF F AS PER THE REQUIREMENT OF THE DGCA RULES THEREFORE, IT WAS ONL Y A PART OF THE ELIGIBILITY OF THE PILOTS AND OTHER STAFF FOR WORKI NG IN THE INDUSTRY OF AVIATION AND SUCH TRAINING WOULD NOT FALL UNDER THE TERM 'SERVICE MAKE AVAILABLE'. THE DECISIONS RELIED UPON BY THE L D. DR ARE ON THE TAXABILITY OF THE INCOME IN THE HAND OF THE NON - RESIDENT IN VIEW OF THE RETROSPECTIVE AMENDMENT THEREFORE THE SAID P RINCIPLE CANNOT BE APPLIED WHILE DECIDING THE ISSUE OF DISALLOWANCE U/S 40(A)(I). IN VIEW OF THE ABOVE DISCUSSION AND THE FACTS AND CIRC UMSTANCES OF THE CASE WE ARE OF THE CONSIDERED OPINION THAT THE DISALLOWANCE OF U/S 40(A)(I) IS NOT JUSTIFIED AND ACCORDINGLY THE S AME IS DELETED. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. AFTER CO-JOINT READING OF THE ABOVE MENTIONED ORDER , AS WELL AS THE ORDERS PASSED BY REVENUE REGARDING THE YEAR UNDER CONSIDER ATION WE ARE OF THE CONSIDERED VIEW THAT HONBLE ITAT HAS RIGHTLY HELD THAT THE ASSESEE HAS ACTED UNDER BONAFIDE BELIEF THAT NO TAX HAS TO BE D EDUCTED AT SOURCE ON THESE PAYMENTS. APART FROM THE BONAFIDE BELIEF THE HONBLE ITAT HAS FURTHER HELD THAT AS PER PARA 4(B) OF ARTICLE 12 OF INDO-US DTAA FEES FOR ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 12 INCLUDED SERVICES MEANS IF SUCH SERVICES MADE AVAI LABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW, OR PROCESSE S, OR CONSISTS OF THE DEVELOPMENTS AND TRANSFER OF A TECHNICAL PLAN OR TE CHNICAL DESIGN. SINCE IN THE PRESENT CASE THE TRAINING WAS GIVEN TO PILOT S AND OTHER STAFF AS PER THE REQUIREMENT OF THE DGCA RULES THEREFORE, TRAINI NG WAS ONLY A PART OF THE ELIGIBILITY OF THE PILOTS AND OTHER STAFF FOR W ORKING IN THE INDUSTRY OF AVIATION AND SUCH TRAINING WOULD NOT FALL UNDER THE TERM SERVICE MAKE AVAILABLE. LD. CIT(A) HAS RIGHTLY HELD THAT THE DI SALLOWANCE U/S40(A)(I) IS NOT JUSTIFY AS PER THE FACTS OF THE PRESENT CASE AN D THE SAME WAS RIGHTLY DELETED. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTA NCES OF THE PRESENT CASE, WE ARE OF THE VIEW THAT THE LEARNED C IT (A) HAS PASSED A REASONABLE AND JUDICIOUS ORDER. THEREFORE, WE FIND NO REASON TO DEVIATE FROM OR INTERFERE WITH THE FINDINGS OF THE LEARNED CIT (A). ACCORDINGLY, WE UPHOLD HIS ORDER. THESE GROUNDS OF APPEAL OF THE RE VENUE STAND REJECTED. GROUND NO.2.1&2.2 6. SINCE ALL THE GROUNDS RAISED BY THE ASSESSEE ARE INTER-CONNECTED AND INTER-RELATED THEREFORE WE THOUGHT IT FIT TO DI SPOSE OF THE SAME THROUGH THE PRESENT COMMON ORDER. THE SAID GROUND HAS BEEN DEALT WITH BY CIT(A) IN PARA NO.3.1 AND THE SAME IS REPRODUCED HE REIN BELOW FOR THE SAKE OF REFERENCE: 3.1 I HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE. THIS ISSUE HAS COME INTO CONSIDERATION OF CIT(A) OR DER IN A.Y. 2005-06 WHEREIN IN PARA 3.7 IT IS HELD AS UNDER: ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 13 3.7 IN THE LIGHT OF THE ABOVE JUDGEMENT, I AM OF T HE VIEW THAT IN THE CASE OF APPELLANT COMPANY, THE TDS WAS NOT DEDUCTIBLE FOR REIMBURSEMENT OF EXPENSES BY THE APPELLANT COMPANY FOR TRANSPORTING/MOBILIZING THESE HELICOPTERS IN INDIA. IN ABSENCE OF ANY EMBEDDED IN COME IN THE REIMBURSEMENT OF THESE EXPENSES, THE QUESTIO N OF DEDUCTING TDS DOES NOT ARISE. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE DEMAND OF TDS AND INTEREST U/S 201(1A) OF THE INCOME-TAX ACT THEREON IN THE CASE OF THE APPELLANT COMPANY. FOLLOWING THE ABOVE DECISION, THE DISALLOWANCE OF M OBILIZATION EXPENSES PAID IN FOREIGN CURRENCY IS DELETED. THIS GROUND OF APPEAL IS ALLOWED. 7. WE HAVE HEARD THE LEARNED DR AND ALSO PERUSED TH E MATERIALS PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY TH E REVENUE AUTHORITIES. WE HAVE NOTICED THAT IN THE ASSESSMENT ORDER IT HAS BEEN CATEGORICALLY MENTIONED THAT MOBILIZATION OF EXPENS ES OF RS.43,90,000/- WERE PAID TO CANADA INC. FOR ACQUIRING THE AIRCRAFT S ON LEASE. MOBILISATION EXPENSES PERTAIN TO EXPENSES INCURRED ON BRINGING T HE AIRCRAFT FROM THE COUNTRY OF LESSOR TO INDIA AND HENCE THEY ARE IN TH E NATURE OF EXPENDITURE INCURRED FOR ACQUIRING THE AIRCRAFTS AS THEY ARE CO VERED IN THE SPECIFIC LEASE AGREEMENTS WITH THE LESSORS. WE HAVE ALSO PER USED THE ORDERS OF CIT(A) WHERE IN PARA NUMBER 3.1 OF THE CIT(A). THER E IS REFERENCE OF ORDER FOR PREVIOUS YEAR WHEREIN IT HAS BEEN CATEGOR ICALLY MENTIONED THAT THE TDS WAS NOT DEDUCTABLE FOR REIMBURSEMENT OF EXP ENSES BY THE ASSESSEE ACCOMPANIED FOR TRANSPORTING/MOBILIZING TH E HELICOPTERS IN INDIA AND IN THE ABSENCE OF ANY EMBEDDED INCOME IN THE RE IMBURSEMENT OF THESE EXPENSES, THE QUESTION OF DEDUCTING TDS DOES NOT ARISE. ITA NO.6917/MUM/2013(A.Y.2005-06) DCIT VS. M/S. UNITED HELICHARTERS P.LTD. 14 CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTA NCES OF THE PRESENT CASE, WE ARE OF THE VIEW THAT THE LEARNED C IT (A) HAS PASSED A WELL REASONED AND JUDICIOUS ORDER. THEREFORE, WE FI ND NO REASON TO DEVIATE FROM OR INTERFERE WITH THE FINDINGS OF THE LEARNED CIT (A). ACCORDINGLY, WE UPHOLD HIS ORDER. THIS GROUNDS OF A PPEAL OF THE REVENUE STAND REJECTED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10-08-2016. SD/- SD/- (JASON P. BOAZ) (SANDEEP GOSAI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI , DATED 10/8/2016 ASHWI ASHWI ASHWI ASHWINI/ NI/ NI/ NI/PS PSPS PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASSISTANT REGISTRAR ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT (A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//