GODFREY PHILIPS INDIA LTD., MUMBAI V. ADDL CIT,8(1), MUMBAI

ITA 6964/MUM/2008

• Counselvise Citation: 696419914 RSA 2008
• Duration Of Justice: 2 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 25-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 05-12-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Depreciation; Opportunity of being heard; Additional evidence; Valuation report; Commercial expediency; Revenue expenditure
• Section: 43B; 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, G, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND R.K.PANDA (A.M ) ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05) GODFREY PHILIPS INDIA LIMITED, SAHARA ROAD, CHAKALA, ANDHERI (E), MUMBAI-400099 PAN: AABCG4768K ADDL. COMMISSIONER OF INCOME TAX 8(1), AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 APPELLANT V/S RESPONDENT ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06) GODFREY PHILIPS INDIA LIMITED, CHAKALA, ANDHERI (E), MUMBAI-400099 PAN: AABCG4768K ADDL. COMMISSIONER OF INCOME TAX 8(1), AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 APPELLANT V/S RESPONDENT APPELLANT BY : SHRI YOGES H THAR RESPONDENT BY : SHRI PAVAN V ED. O R D E R PER D.K.AGARWAL (JM) THESE TWO APPEALS PREFERRED BY THE ASSESSEE ARE DIR ECTED AGAINST THE SEPARATE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX(A) DATED 25.3.2010 AND 15.9.2008 FOR ASSESSMENT YEARS 2004-05 AND 2005-06 RESPECTIVELY. SINCE THE FACTS ARE IDENTICAL, THE ISSUES INVOLVE ARE CO MMON BOTH THESE APPEALS ARE BEING DISPOSED OF BY THIS COMMO N ORDER FOR THE SAKE OF CONVEYANCE. ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 2 2 ITA NO.4304/MUM/2010 (AY-2004-05) 2. THE GROUNDS TAKEN BY THE ASSESSEE READ AS UNDE R : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) 16, MUMBAI (THE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ADDITIONAL COMMISSIONER OF INCOME TAX 8(1), MUMBAI(THE AO) IN NOT REDUCING THE PROFIT, ON AC COUNT OF ALLEGED EXCESS UTILISATION OF MODVAT CREDIT ATTR IBUTABLE TO RAW MATERIAL CONSUMED AS COMPARED TO MODVAT UTILISED; 2. TE APPELLANT PRAYS THAT THE AO BE DIRECTED TO GI VE CORRECT EFFECT TO THE CIT(A)S ORDER AND GRANT LEG ITIMATE DEDUCTION ON ACCOUNT OF MODVAT 3. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE VIDE HIS LETTER DATED MAY 23, 2011 SUBMITS AS UNDER : THIS APPEAL HAS BEEN FILED AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) R.W. SECTION 250 OF THE INCOME TAX ACT, 1961. THE APPEL LANT, BEING AGGRIEVED BY THE ACTION OF THE ASSESSING OFFI CER IN NOT GIVING PROPER EFFECT TO THE ORDER OF THE COMMIS SIONER OF INCOME TAX (APPEALS) FILED THIS APPEAL. THE APPELLANT HAD ALSO FILED APPEAL TO THE HONBLE TRIBUNAL AGAINST THE ORDER OF THE LEARNED CIT(A) FO R PARTLY CONFIRMING THE ACTION OF THE AO BY DIRECTIN G THE AO TO WORKOUT THE MODVAT CREDIT IN ACCORDANCE WITH THE DIRECTIONS GIVEN IN THE ORDER. AGAINST THE SAID APPEAL, THE HONBLE TRIBUNAL, VIDE ORDER DATED APRIL 20,2011 (ITA NO.1071-5569/M/2007) HAS MODIFIED THE DIRECTION OF THE CIT(A) AND HAS SENT BACK THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICA TION BASED ON MODIFIED DIRECTIONS (SEE PARA 2.5-2.5.1, P AGE 6-7 OF THE ITAT ORDER ENCLOSED). UNDER THE CIRCUMSTANCES, THE ORDER PASSED BY THE A O UNDER 143(3) R.W.S. 250 OF THE ACT BEING THE SUBJEC T MATTER OF THE CAPTIONED APPEAL DOES NOT SURVIVE ANY ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 3 3 MORE, AND THEREFORE THE APPEAL RAISED BEFORE THE TRIBUNAL BECOMES INFRUCTUOUS. 4. ON THE OTHER HAND, THE LEARNED DR WHILE RELYING ON THE ORDER OF THE AO AND LEARNED COMMISSIONER OF INCOM E TAX (A) SUBMITS THAT HE HAS NO OBJECTION IF THE ISSUE I S RESTORED TO THE FILE OF THE AO. 5. THAT BEING SO AND IN THE ABSENCE OF CONTRARY MAT ERIAL PLACED ON RECORD BY THE PARTIES AND KEEPING IN VIEW THAT THE TRIBUNAL VIDE ORDER DATED 20.4.2011 (SUPRA) IN THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY T HE LEARNED COMMISSIONER OF INCOME TAX (A) IN THE APPE AL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE AO UNDER SECTION 143(3) OF THE ACT HAS SET ASIDE THE IMP UGNED ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION AND H ENCE THE PRESENT APPEAL FILED BY THE ASSESSEE AGAINST THE O RDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (A) IN NOT GIVING PROPER EFFECT ON THE SAME ISSUE DOES NO T SURVIVE AND BECOMES INFRUCTUOUS AND ACCORDINGLY, THE SAME I S TREATED AS DISMISSED. ITA NO.6964/MUM/2008 (AY- 2005-06) 6. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTU RING AND ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 4 4 TRADING OF TOBACCO PRODUCTS AND TEA, FILED RETURN DECLARING TOTAL INCOME OF RS.109,13,04,660/-. HOWEVER, THE AS SESSMENT WAS COMPLETED AT AN INCOME OF RS.1,12,30,60,537 V IDE ORDER DATED 13.12.2007 PASSED UNDER SECTION 143(3) OF THE ACT. 7. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (A) PARTLY ALLOWED THE APPEAL. 8. BEING AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A), THE ASSESSEE IS IN APPEAL BEFORE US. 9. GROUND NO.I IS AGAINST SUSTENANCE OF DISALLOWAN CE OF PRODUCT DEVELOPMENT EXPENSES OF RS.80,78,000/-. 10. THE AO DURING THE ASSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAD CLAIMED EXPENDITURE OF RS.92.32 LA KHS ON ACCOUNT OF PRODUCT DEVELOPMENT EXPENSES. THE EXPENS ES INCURRED WERE FOR PRINTING CIGARETTE PACKS THROUGH THIRD PARTIES WHICH IN TURN HAD PROCURED SOME SPECIFIC PR INTING CYLINDERS/ DYES FOR THE PRINTING. THE PAYMENTS FOR PROCURING THE CYLINDERS/ DYES HAD BEEN MADE BY THE ASSESSEE. THE AO OBSERVED THAT EVEN THOUGH THE ASSETS WERE LYING WIT H THIRD PARTIES, THE ASSESSEE WAS HAVING RIGHT TO USE THE S AME AND EXPENSES WERE OF CAPITAL IN NATURE. HE THEREFORE DI SALLOWED RS.80,78,000/- (I.E. RS.92,32,000 DEPRECIATION FO R HALF OF ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 5 5 THE YEAR). ON APPEAL LEARNED COMMISSIONER OF INCOM E TAX (A) FOLLOWING THE APPELLATE ORDERS FOR THE A.YS.200 2-03 AND 2003-04 CONFIRMED THE DISALLOWANCE MADE BY THE AO. 11. AT THE TIME OF HEARING, THE LEARNED COUNSEL F OR THE ASSESSEE SUBMITS THAT THIS ISSUE IS COVERED IN FAV OUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN M/S GODF REY PHILIPS INDIA LIMITED V/S ASSISTANT COMMISSIONER OF INCOME TAX AND VICE-VERSA IN ITA NO.2792/M/06 AND ITA NO.2632/M/0 6 FOR THE ASSESSMENT YEAR 2002-03, (PAGE 1-3, PARA 2-5) (QUANTUM APPEAL) AND IN ITA NO.1071-5569-2632/M/200 6 FOR ASSESSMENT YEARS 2003-04 & 2004-05 (PAGE 2-3, PARA 2.1- 2.2.1) (QUANTUM APPEAL). 12. ON THE OTHER HAND, THE LEARNED DR SUPPORTS THE ORDER OF THE AO AND LEARNED COMMISSIONER OF INCOME TAX ( A). 13. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE REC ORDS AND CONSIDERED THE MATTER CAREFULLY. WE FIND THAT T HE SAME ISSUE HAS ALREADY BEEN CONSIDERED BY THE TRIBUNAL I N ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2003- 04 AND 2004-05 (SUPRA) WHEREIN IT HAS BEEN OBSERVED IN PAR AGRAPH 2.1.1 THAT IN A.Y.2002-03 IN ITA NO.2792/M/2006, TH E TRIBUNAL IN THE SAID YEAR ON PERUSAL OF INVOICE OF M/S. TWENTY-FIRST CENTURY PRINTERS LTD. RELATING TO THE PURCHASES OF CYLINDERS/ DYES NOTED THAT THESE WERE CONSUMABLE ST ORES ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 6 6 USED IN PRINTING. THE ASSESSEE HAD ALSO ISSUED SPEC IFIC CERTIFICATE CERTIFYING THAT THE ITEMS WERE CHARGED TO CONSUMABLE STORES. TRIBUNAL ALSO OBSERVED THAT THE LIFE OF SUCH ITEMS USED IN PRINTING JOB WAS SHORT AND THERE FORE THE EXPENDITURE INCURRED COULD NOT BE OF THE NATURE OF CAPITAL. THE TRIBUNAL ACCORDINGLY ALLOWED THE CLAIM OF THE ASSESSEE AS REVENUE EXPENDITURE. FACTS THIS YEAR ARE IDENTIC AL AS NO DISTINGUISHING FEATURES HAVE BEEN BROUGHT TO OUR NO TICE BY THE LEARNED DR. WE, THEREFORE RESPECTFULLY FOLLOWIN G THE CONSISTENT VIEW OF THE TRIBUNAL, SET ASIDE THE ORD ER OF LEARNED COMMISSIONER OF INCOME TAX (A) AND ALLOW TH E CLAIM OF THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSE E IS, THEREFORE, ALLOWED. 14. GROUND NO.II IS AGAINST SUSTENANCE OF DISALLOW ANCE OF DEPRECIATION @80% ON UPS AMOUNTING TO RS.5,06,191/- . 15. THE AO NOTED FROM THE DEPRECIATION CHART FILED DURING THE ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAS CL AIMED DEPRECIATION @ 80% ON ITEMS CATEGORIZED AS ENERGY S AVINGS EQUIPMENT AND RENEWAL ENERGY DEVICES. SUCH HIGHER DEPRECIATION CLAIMED WAS RS.7,36,278/-. THE AO OBSE RVED THAT THE ENERGY SAVING DEVICES CLAIMED BY THE ASSES SEE WERE NOTHING BUT UNINTERRUPTED POWER SUPPLY (UPS) WHEN THE ELECTRICAL SUPPLY IS CUT OFF. THEREFORE, UPS IS NOT ENERGY SAVING DEVICE. AO THEREFORE REJECTED THE CLAIM OF H IGHER ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 7 7 DEPRECIATION AND ALLOWED THE NORMAL DEPRECIATION @ 25%. ON APPEAL THE LEARNED COMMISSIONER OF INCOME TAX (A) F OLLOWING THE APPELLATE ORDERS FOR THE A.YS.2002-03, 2003-04 AND 2004-05 CONFIRMED THE ORDER OF AO. 16. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ISSUE IS COVERED IN FAV OUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR .2002-03 ITA NO.2792/MUM/2006 AND 2632/MUM/2006 (SUPRA) (PAGE 4- 6, PARA 10-13) AND ORDER FOR THE AY 2003-04 AND 2004 -05 IN ITA NO.1071/M/2007 AND ITA NO.5569/M/2007 ( PAGE 3-4, PARA 2.2- 2.2.1) 17. ON THE OTHER HAND, THE LEARNED D.R. SUPPORTS TH E ORDER OF THE AO AND THE LEARNED COMMISSIONER OF INCOME TA X (A). 18. AFTER HEARING BOTH THE PARTIES, WE FIND MERIT IN THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THIS ISSUE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE DEC ISION OF THE TRIBUNAL IN ASSESSEES OWN CASE. IN THE RECENT ORDER FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05 DATED 20.4.2011, THE TRIBUNAL OBSERVED AND HELD THAT IN T HE ASSESSMENT YEAR 2002-03 THE SAME ISSUE OF ALLOWABI LITY OF DEPRECIATION AT HIGHER RATE IN CASE OF UPS HAS BEEN RAISED. THE TRIBUNAL NOTED THAT IN THE APPENDIX TO THE INC OME-TAX ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 8 8 RULES 1962 AUTOMATIC VOLTAGE CONTROLLER HAD BEEN LISTED UNDER THE HEADING ENERGY SAVING DEVICES AS AN ELE CTRICAL INSTRUMENT ELIGIBLE FOR 100% DEPRECIATION. THEREFOR E THE ISSUE WAS WHETHER UPS COULD BE CONSIDERED AS AUTOMA TIC VOLTAGE CONTROLLER. THE TRIBUNAL NOTED THAT UPS AUTOMATICALLY CORRECTED LOW AND HIGH VOLTAGE CONDIT IONS AND STEPPED UP LOW VOLTAGE TO SAFE OUTPUT LEVELS. THE TRIBUNAL THEREFORE HELD THAT UPS WAS DOING THE JOB OF VOLTAG E CONTROLLING AUTOMATICALLY. FOR THE SAID PROPOSITION THE TRIBUNAL ALSO PLACED RELIANCE ON THE ORDER OF THE JAIPUR BENCH OF TRIBUNAL IN CASE OF DCIT VS SERVICE FINIS HING EQUIPMENT (2 SOT 232). THE TRIBUNAL ACCORDINGLY A LLOWED THE CLAIM OF THE ASSESSEE. THE FACTS FOR THE YEAR UNDER CONSIDERATION ARE IDENTICAL. WE THEREFORE RESPECTFU LLY FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEE S OWN CASE (SUPRA), SET ASIDE THE ORDER OF LEARNED COMMI SSIONER OF INCOME TAX (A) AND ALLOW THE CLAIM OF THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSEE IS, THEREFORE, ALLOWED . 19. GROUND NO.III IS AGAINST SUSTENANCE OF DISALLO WANCE OF SOFTWARE EXPENSES AMOUNTING TO RS.74,92,000/- AND GROUND NO.IV IS AGAINST SUSTENANCE OF DISALLOWANCE OF DEP RECIATION OF EARLIER ASSESSMENT YEARS ON EDP CHARGES. 20. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ISSUE OF EDP/SOFTWARE C HARGES IS ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 9 9 COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2002-03 (SUPRA) (P AGE 8-9, PARA 20-22) AND ASSESSMENT YEARS 2003-04 AND 2004- 05 (SUPRA) (PAGE 4-5, PARA 2.3-2.3.1), IN WHICH THE TR IBUNAL HAS GIVEN DIRECTIONS TO FOLLOW THE DECISION OF THE SPEC IAL BENCH IN THE CASE OF AMWAY INDIA ENTERPRISES LTD. V/S DCIT (114 TTJ 476) (DEL). HE FURTHER SUBMITS THAT THE ISSUE OF DEPRECIATION OF EARLIER YEARS SOFTWARE EXPENSES DISALLOWED IS CONSEQUENTIAL AND HENCE APPROPRIATE DIRECTION MAY BE GIVEN TO THE AO. 21. ON THE OTHER HAND, THE LEARNED DR SUPPORTS THE ORDER OF THE AO AND THE LEARNED COMMISSIONER OF INCOME T AX (A). 22. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE R IVAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON REC ORD WE FIND THAT THE TRIBUNAL IN ASSESSEES APPEAL IN ITA NO.1071/MUM/2007 FOR THE ASSESSMENT YEAR 2003-04 AN D IN ITA NO.5569/MUM/2007 FOR THE ASSESSMENT YEAR 2004-0 5, ORDER DATED 20.4.2011 HAS OBSERVED AND HELD VIDE PARAGRAPHS 2.3.1 AND 2.4.1 AS UNDER : 2.3.1 WE HAVE HEARD BOTH THE PARTIES, PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. WE FIN D THAT THE SAME ISSUE HAD BEEN CONSIDERED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN A.Y.2002-03 IN ITA NO.2792/M/2006 IN WHICH THE TRIBUNAL NOTED THAT ALLOWABILITY OF EXPENDITURE ON ACCOUNT OF SOFTWARE EXPENSES HAD BEEN EXAMINED IN DETAIL BY THE SPECIAL BENCH OF THE TRIBUNAL IN CASE OF AMWAY INDIA ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 10 10 ENTERPRISES VS DCIT (111 ITD 112) IN WHICH THE SPEC IAL BENCH HAD LAID DOWN CERTAIN GUIDELINES TO ASCERTAIN THE TRUE NATURE OF EXPENDITURE. THE TRIBUNAL ACCORDINGL Y RESTORED THE MATTER TO THE FILE OF AO FOR PASSING A FRESH ORDER AFTER NECESSARY OBSERVATIONS IN THE LIGHT OF DECISION OF THE SPECIAL BENCH (SUPRA) AND AFTER ALL OWING OPPORTUNITY OF HEARING TO THE ASSESSEE. FACTS THIS YEAR ARE IDENTICAL. WE THEREFORE RESTORE THIS ISSUE TO T HE FILE OF AO FOR FRESH ORDER AFTER NECESSARY EXAMINATION I N THE LIGHT OF OBSERVATIONS MADE ABOVE AND AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESSEE. 2.4.1 WE HAVE HEARD BOTH THE PARTIES PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. THE IS SUE REGARDING ALLOWABILITY OF THE EXPENSES ON ACQUISITI ON OF COMPUTER SOFTWARE HAS ALREADY BEEN RESTORED BY THE IN THE EARLIER YEAR TO THE FILE OF AO FOR TAKING A FRE SH DECISION AFTER NECESSARY EXAMINATION IN THE LIGHT O F DECISION OF THE SPECIAL BENCH IN CASE OF DCIT VS AM WAY INDIA ENTERPRISES (SUPRA). IN THESE YEARS ALSO WE ARE RESTORING THIS ISSUE TO THE FILE OF AO. IN CASE ON FRESH EXAMINATION THE AO FINDS THAT THE SOFTWARE EXPENSES ARE CAPITAL IN NATURE, THESE EXPENSES WOULD HAVE TO BE CAPITALIZED AND THE ASSESSEE WILL BE ENTITLED TO DEPRECIATION AS PER RULES EVEN IN RESPECT OF SUCH EXPENSES CAPITALIZED IN EARLIER YEARS. THE AO IS DI RECTED TO ACT ACCORDINGLY. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROU GHT ON RECORD BY THE PARTIES, WE RESPECTFULLY FOLLOWING T HE ORDER OF THE TRIBUNAL RESTORE THE ISSUE TO THE FILE OF THE AO TO EXAMINE THE SAME IN THE LIGHT OF THE DIRECTIONS GIV EN BY THE TRIBUNAL IN THE SAID ORDER (SUPRA) AND IN ACCORDAN CE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. THE GROUNDS TAKEN BY THE ASSESSEE ARE T HEREFORE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 11 11 23. GROUND NO.V IS AGAINST SUSTENANCE OF UNUTILIZE D CENVAT CREDIT. 24. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE ASSESSEE HAD UNUTILIZED MODVAT CREDIT WHICH HAD NOT BEEN ADDED TO THE CLOSING STOCK AS REQUIRED UNDER T HE PROVISIONS OF SECTION 145A WHICH WAS APPLICABLE FRO M A.Y.1999-2000. THE ASSESSEE SUBMITTED THAT THERE WO ULD BE NO NET EFFECT ON THE PROFIT OF THE ASSESSEE BECAUSE OF ADJUSTMENT ON ACCOUNT OF UNUTILIZED MODVAT CREDIT. AO HOWEVER, DID NOT ACCEPT THE CONTENTION RAISED. THE AO AFTER INVOKING THE PROVISIONS OF SECTION 145A(B) OF THE ACT READ WITH EXPLANATION HELD THAT THE ASSESSEE HAS ACQUIRE D A RIGHT TO THE CREDIT OF PAYMENT OF EXCISE DUTY OF FINISHED GOODS TO THE EXTENT OF THE UNUTILISED CREDIT IN ITS CENV AT ACCOUNT AND ACCORDINGLY MADE AN ADDITION OF RS.52,62,032/ -. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX (A) WHILE FOLLOWING THE DECISION OF THE TRIBUNAL IN PFIZER LTD V/S JCIT IN ITA NO.1825 & 2977/MUM/2003 DATED 7.8.2006 DIREC TED THE AO TO MAKE THE ADJUSTMENT IN TERMS OF THE DIR ECTION GIVEN IN HIS ORDER BOTH IN REGARD TO THE STOCKS, P URCHASES, SALES, EXCISE DUTY PAYMENT AND IF SUCH ADJUSTMENTS RESULTS IN AN ADDITION, RESTRICT THE ADDITION ONLY TO THAT EXT ENT. ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 12 12 25. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ISSUE IS COVERED IN FAVO UR OF THE ASSESSEE BY THE ORDERS OF THE TRIBUNAL IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2002-03 (SUPRA) PAGE 10, PARA 27-30), FOR THE ASSESSMENT YEARS 2003-04 AND 2004- 05 (SUPRA) (PAGE 6-7, PARAGRAPH 2.5-2.5.1) AND FOR TH E ASSESSMENT YEAR 2000-01 ORDER DATED 17.11.2008 (PA GES 8- 10, PARA 4.12) IN WHICH DIRECTIONS WERE GIVEN TO FOLLOW THE DECISIONS OF HOWKINS COOKERS V/S ITO (14 DTR 2006) (MUM), CIT V/S MAHAVIR ALUMINIUM LTD (297 ITR 77 ) (DEL) AND CIT V/S MAHALAXMI GLASS PVT LTD (318 ITR 116) (BOM). 26. ON THE OTHER HAND, THE LEARNED D.R.SUPPORTS THE ORDER OF THE AO AND THE LEARNED COMMISSIONER OF INCOME T AX(A). 27. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE REC ORDS AND CONSIDERED THE MATTER CAREFULLY. WE FIND THAT RECENTLY THE SAME ISSUE HAS BEEN CONSIDERED BY THE TRIBUN AL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2003- 04 AND 2004-05 WHEREIN THE TRIBUNAL OBSERVED IN PARAGRA PH 2.5.1 OF ITS ORDER DATED 20.4.2011 THAT IN A.Y.2002-03 I N ITA NO.2792/M/2006, THE TRIBUNAL NOTED THAT IN A.Y.20 00-01 THE SAME ISSUE HAS BEEN REMITTED BACK TO THE AO FOR FRE SH CONSIDERATION IN THE LIGHT OF DECISION OF HONBLE H IGH COURT OF DELHI IN CASE OF CIT VS MAHAVIR ALUMINUM LTD. (297 ITR ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 13 13 277). THE TRIBUNAL ACCORDINGLY RESTORED THE ISSUE T O THE FILE OF AO. THE FACTS ARE IDENTICAL IN THE YEAR UNDER CONSIDERATION. WE,THEREFORE, RESPECTFULLY FOLLOWING CONSISTENT VIEW OF THE TRIBUNAL IN ASSESSEES OW N CASE (SUPRA) SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (A) AND RESTORE THE ISSUE TO THE FILE OF AO FOR FRESH ORDER AFTER NECESSARY EXAMINATION IN THE LIGH T OF OBSERVATIONS MADE ABOVE AND AFTER ALLOWING OPPORTUN ITY OF HEARING TO THE ASSESSEE. THE GROUND TAKEN BY THE A SSESSEE IS THEREFORE PARTLY ALLOWED FOR STATISTICAL PURPOSE S. 28. GROUND NO.VI IS AGAINST THE SUSTENANCE OF DISAL LOWANCE INTEREST UNDER SECTION 36(1)(III) OF THE ACT. 29. THE AO DURING THE ASSESSMENT PROCEEDINGS NOTED THAT THOUGH THE ASSESSEE WAS PAYING SUBSTANTIAL INTEREST ON THE BORROWINGS MADE, IT HAD ADVANCED INTEREST FREE LOAN S OF RS.342.65 LACS TO THE SUBSIDIARY M/S. KASHYAP METAL S AND ALLIED INDUSTRIES. IT WAS ALSO NOTED BY HIM THAT TH E ASSESSEE HAD ALSO ADVANCED LOANS AT SUBSIDIZED INTEREST RATE OF 6% TO THE SAID SUBSIDIARY AMOUNTING TO RS.1119.81 LAKHS. THE AO FURTHER NOTED THAT THE ASSESSEE WAS PAYING INTEREST AT THE AVERAGE RATE OF 6.30%. HE THEREFORE ASKED THE ASSES SEE TO EXPLAIN AS TO WHY THE INTEREST PROPORTIONATE TO THE LOANS GIVEN TO THE SUBSIDIARY SHOULD NOT BE DISALLOWED. T HE ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 14 14 ASSESSEE EXPLAINED THAT NO INTEREST HAD BEEN CHARGE D ON THE ADVANCES OF RS.342.65 LACS AS THE SAID LOAN HAD BEE N GIVEN PRIOR TO INSERTION OF SECTION 372A OF THE COMPANIES ACT. IN RESPECT OF THE BALANCE AMOUNT THE INTEREST HAD BEEN CHARGED AT RBI NOTIFIED BANK RATE. THE ASSESSEE ALSO SUBMIT TED, IT HAD STRONG FINANCIAL POSITION TO ADVANCE LOANS FROM INTERNAL GENERATION OF REVENUE AND THEREFORE NO INTEREST WAS REQUIRED TO BE DISALLOWED. AO HOWEVER DID NOT ACCEPT THE CON TENTIONS RAISED. IT WAS OBSERVED BY HIM THAT THE ASSESSEE WA S NOT IN THE BUSINESS OF GIVING LOANS AND THEREFORE THE TRAN SACTION WAS NOT FOR THE PURPOSE OF BUSINESS. THE ASSESSEE H AD DIVERTED INTEREST BEARING FUNDS FROM THE BUSINESS W HICH WAS NOT FOR GENUINE BUSINESS PURPOSES BUT OUT OF EXTRAN EOUS CONSIDERATIONS NOT RELATED TO THE BUSINESS. THE AO WHILE RELYING ON THE CERTAIN DECISIONS, DISALLOWED PROPOR TIONATE INTEREST AFTER MAKING ALLOWANCE FOR RECOVERIES MADE . THUS, THE NET DISALLOWANCE OF INTEREST MADE WAS RS.33.39 LAKHS. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX ( A) FOLLOWING THE APPELLATE ORDERS FOR THE ASSESSMENT Y EARS 2002-2003, 2003-04 AND 2004-05 UPHELD THE DISALLOWA NCE OF INTEREST MADE BY THE AO. 30. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ISSUE IS COVERED IN FAVOU R OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL FOR THE AS SESSMENT ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 15 15 YEARS 2003-04 AND 2004-05 (SUPRA) (PAGE7-12, PARA 2.6- 2.6.4). 31. ON THE OTHER HAND, THE LEARNED DR SUPPORTS THE ORDER OF THE AO AND THE LEARNED COMMISSIONER OF INCOME TA X (A). 32. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS O F THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE SUBMISSIONS OF THE LEARNED CO UNSEL FOR THE ASSESSEE THAT FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05 (SUPRA) THE TRIBUNAL IN THE ASSESSEES OWN CASE ON THE SIMILAR FACTS HAS OBSERVED AND HELD AS UNDER : 2.6.4 WE HAVE CAREFULLY CONSIDERED THE VARIOUS ASP ECTS OF THE MATTER. WE FIND SUBSTANCE IN THE SUBMISSION OF THE ASSESSEE THAT NO DISALLOWANCE COULD BE MADE IN RESP ECT OF THE OPENING BALANCES OF LOANS AND ADVANCES WHICH WERE COMING FROM EARLIER YEARS AND IN WHICH THERE W ERE NO DISALLOWANCE. THE PLEA OF THE ASSESSEE IS SUPPOR TED BY THE JUDGMENT OF HONBLE HIGH COURT OF KARNATAKA IN CASE OF SRIDEV ENTERPRISES (SUPRA) IN WHICH IT WAS HELD THAT IN CASE LOANS AND ADVANCES WERE BEING CARRIED FORWARD FROM EARLIER YEARS IN WHICH THERE WAS NO DISALLOWANCE, NO DISALLOWANCE COULD BE MADE IN RESP ECT OF THE OPENING BALANCE IN THE CURRENT YEAR AS THE N ATURE AND STATUS OF THE ADVANCES ON THE FIRST DAY OF THE CURRENT YEAR REMAINED THE SAME AS THE NATURE AND STATUS OF THE ADVANCES ON THE LAST DAY OF PRECEDING YEAR. IN THE EARLIER YEAR THERE WERE NO DISALLOWANCES WHICH MEANT THAT T HE REVENUE WAS SATISFIED THAT LOANS AND ADVANCES WERE GIVE FROM OWN FUNDS. THEREFORE RESPECTFULLY FOLLOWING TH E JUDGMENT OF HONBLE HIGH COURT OF KARNATAKA IN CASE OF SRIDEV ENTERPRISES (SUPRA) WE HOLD THAT NO DISALLOW ANCE OF INTEREST WILL BE MADE IN RESPECT OF THE OPENING BALANCES AS ON THE FIRST DAY OF ASSESSMENT YEAR INVOLVED. AS REGARDS THE LOANS/ ADVANCES GIVEN IN T HE CURRENT YEAR, THE ASSESSEE IS REQUIRED TO SHOW THAT ON ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 16 16 THE DATE OF GIVING LOANS/ ADVANCES THE ASSESSEE HAD SUFFICIENT OWN FUNDS AVAILABLE WHICH HAS NOT BEEN S HOWN IN THIS CASE. THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE JUDGMENT OF HONBLE SUPREME COURT IN CASE OF S.A.BUILDERS (SUPRA). IN THE SAID CASE, HONBLE SUP REME COURT HELD THAT INTEREST ON MONEY BORROWED CANNOT B E ALLOWED ON COMMERCIAL EXPEDIENCY IN ALL CASES OF LO ANS AND ADVANCES GIVEN TO THE SISTER CONCERN. IT WAS AL SO OBSERVED BY THE HONBLE SUPREME COURT THAT IN CASE THE HOLDING COMPANY ADVANCED BORROWED FUNDS TO THE SUBSIDIARY IN WHICH IT HAD DEEP INTEREST, IT WOULD ORDINARILY BE ENTITLED FOR DEDUCTION AND THAT IT WI LL DEPEND UPON FACTS AND CIRCUMSTANCES OF EACH CASE. WE FIND THAT IN THE PRESENT THESE ASPECTS HAVE NOT BEEN EXAMINED AND IT IS NOT CLEAR HOW THE INTEREST FREE LOANS AND ADVANCES TO THE SISTER CONCERNS WOULD HAVE PROMOTED THE INTEREST OF THE ASSESSEE. WE ALSO NOTE THAT THE ASSESSEE HAD FILED THE FUND FLOW STATEMENT AVAILABL E ON PAGE 64 OF THE PAPER BOOK BUT THE SAME WAS FILED ON LY BEFORE LEARNED COMMISSIONER OF INCOME TAX (A) AND W AS NOT AVAILABLE BEFORE THE AO. THEREFORE THE ASPECTS AS TO WHETHER AND HOW MUCH LOANS AND ADVANCES WERE COMING FROM EARLIER YEARS IS REQUIRED TO BE VERIFIED BY TH E AO. THE ASSESSEE HAS ALSO FILED COPY OF THE BOARD RESOL UTION DATED 10.8.92 AVAILABLE AT PAGE 61 OF THE PAPER BOO K AS PER WHICH SOME LOANS HAD BEEN GIVEN TO THE SUBSIDIA RY COMPANY FOR DEVELOPMENT OF THE PROPERTY WITH UNDERSTANDING THAT THE ASSESSEE WOULD ACQUIRE PART OF THE PROPERTY FOR THE PURPOSE OF BUSINESS. THERE WAS THUS COMMERCIAL EXPEDIENCY INVOLVED. THIS RESOLUTION WAS HOWEVER NOT AVAILABLE BEFORE THE AO. IN OUR VIEW MA TTER REQUIRES FRESH CONSIDERATION AFTER EXAMINATION OF T HE ADDITIONAL EVIDENCES FILED BEFORE LEARNED COMMISSIO NER OF INCOME TAX (A) AS MENTIONED ABOVE AND AFTER CONSIDERING THE JUDICIAL PRONOUNCEMENTS DISCUSSED EARLIER. WE THEREFORE SET ASIDE THE ORDER OF LEARNE D COMMISSIONER OF INCOME TAX(A) AND RESTORE THE MATTE R TO THE FILE OF AO FOR PASSING A FRESH ORDER AFTER N ECESSARY EXAMINATION IN THE LIGHT OF OBSERVATIONS MADE ABOVE AND AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESS EE. IN THE ABSENCE, OF ANY DISTINGUISHING FEATURE BRO UGHT ON RECORD BY THE REVENUE, WE RESPECTFULLY FOLLOWING TH E ORDER OF THE TRIBUNAL (SUPRA) SET ASIDE THE ISSUE TO THE FIL E OF THE AO TO EXAMINE THE SAME AFRESH IN THE LIGHT OF THE DIRE CTIONS ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 17 17 GIVEN BY THE TRIBUNAL (SUPRA) AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND TAKEN BY THE ASSESSEE IS, THER EFORE, PARTLY ALLOWED FOR STATISTICAL PURPOSES. 33. GROUND NO.VII IS AGAINST THE SUSTENANCE OF DISALLOWANCE UNDER SECTION 14A OF THE ACT. 34. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT DUE TO SMALLNESS OF THE AMOUN T HE DOES NOT WANT TO PRESS ABOVE GROUND WHICH WAS NOT OBJECTED TO BY THE LEARNED D.R.. 35. THAT BEING SO AND IN THE ABSENCE OF ANY SUPPORT ING MATERIAL PLACED ON RECORD, THE GROUND RAISED BY TH E ASSESSEE, IS, THEREFORE REJECTED BEING NOT PRESSED. 36. GROUND NO.VIII IS AGAINST THE SUSTENANCE OF ADD ITION OF LEAVE ENCASHMENT OF RS.34,03,000/- 37. THE AO NOTED THAT THE ASSESSEE HAD BEEN CLAIMIN G EXPENSES ON ACCOUNT OF LEAVE ENCASHMENT ON THE BASI S OF ACTUARIAL VALUATION REPORT BUT FROM A.Y.2003-04 THE ASSESSEE STARTED CLAIMING DEDUCTION ON THE ACTUAL PAYMENT B ASIS. THE AO OBSERVED WHEN THE ASSESSEE HAD MADE CLAIM ON THE ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 18 18 BASIS OF ACTUARIAL VALUATION IN THE EARLIER YEAR, T HE CLAIM NOW BEING MADE ON THE BASIS OF ACTUAL PAYMENT COULD LEA D TO DOUBLE DEDUCTION. AS PER THE AO THE ASSESSEE WAS NO T ABLE TO FURNISH THE DETAILS OF DOUBLE DEDUCTION. HE THER EFORE PROCEEDED TO MAKE DISALLOWANCE ON ESTIMATE BASIS. I T WAS OBSERVED BY HIM THAT AN EMPLOYEE ON AVERAGE WORKED IN PRIVATE SECTOR FOR 20 25 YEARS. SINCE THE ASSESSE E HAD BEEN MAKING CLAIM ON THE BASIS OF ACTUARIAL VALUATI ON FOR THE LAST 7 YEARS HE ESTIMATED THAT 1/3RD OF ACTUAL PAYM ENT MAY HAVE BEEN CLAIMED ON THE BASIS OF ACTUARIAL VALUATI ON. ACCORDINGLY, THE AO OUT OF TOTAL SUM OF RS.102.09 L AKHS PAID TO RETIRED EMPLOYEES DURING THE YEAR, DISALLOWED 1/3 RS.34.03 LAKHS AND ADDED TO THE INCOME OF THE ASS ESSEE. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TAX ( A) FOLLOWING THE APPELLATE ORDERS FOR THE ASSESSMENT Y EARS 2002-03, 2003-04 AND 2004-05, UPHELD THE DISALLOWAN CE MADE BY THE AO. 38. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF THE TRIBUNAL FOR THE ASSES SMENT YEARS 2003-04 AND 2004-05 (SUPRA) (PAGE 13-14, PARA 2.8- 2.8.1). HOWEVER, HE SUBMITS THAT THE DIRECTIONS BE GIVEN TO RESTRICT THE DISALLOWANCE TO THE AMOUNTS ALLOWED IN THE EARLIER YEARS. ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 19 19 39. THE LEARNED DR SUPPORTS THE ORDER OF THE AO AND THE LEARNED COMMISSIONER OF INCOME TAX(A). 40. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE REC ORDS AND CONSIDERED THE MATTER CAREFULLY. WE FIND MERIT IN THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT T HE TRIBUNAL IN THE ASSESSEES OWN APPEALS FOR THE ASSE SSMENT YEARS 2003-04 AND 2004-05 ON THE SIMILAR FACTS AN D CIRCUMSTANCES OF THE CASE HAS DECIDED THE IMPUGNED ISSUE VIDE FINDING RECORDED IN PARAGRAPH 2.8.1 OF THE ORD ER DATED 20.4.2011 AS UNDER : THE DISPUTE IS REGARDING DISALLOWANCE OF PART OF T HE CLAIM RELATING TO LEAVE ENCASHMENT. THE ASSESSEE HA D BEEN MAKING THE CLAIM EARLIER ON THE BASIS OF ACTUA RIAL VALUATION BUT CONSEQUENT TO THE AMENDMENT OF SECTIO N 43B THE CLAIM WAS BEING MADE ON PAYMENT BASIS FROM A.Y.2003-04. THE AO HAS MADE ESTIMATED DISALLOWANCE OUT OF THE CLAIM MADE ON PAYMENT BASIS ON THE GROUN D THAT PART OF THE PAYMENTS MADE MAY RELATE TO EARLIE R YEAR WHEN THESE WERE ALLOWED ON ACTUARIAL BASIS. THE AO HAS MADE DISALLOWANCE ON ESTIMATE WHICH CANNOT BE SUSTAINED. ONLY THE PAYMENT WHICH HAD ACTUALLY BEEN ALLOWED EARLIER CAN BE DISALLOWED. IN OUR VIEW MATT ERS REQUIRE FRESH EXAMINATION AND DISALLOWANCE HAS TO B E RESTRICTED TO THE AMOUNTS ALLOWED IN THE EARLIER YE AR. WE THEREFORE SET ASIDE THE ORDER OF LEARNED COMMISSION ER OF INCOME TAX (A) AND RESTORE THE ISSUE TO THE FILE OF AO FOR PASSING A FRESH ORDER AFTER NECESSARY EXAMINATION A ND AFTER ALLOWING OPPORTUNITY OF HEARING TO THE ASSESS EE . IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BROUGH T ON RECORD BY THE LEARNED COUNSEL FOR THE ASSESSEE, WE RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL ( SUPRA) RESTORE THIS ISSUE TO THE FILE OF THE AO TO EXAMIN E THE MATTER ITA NO.4304/MUM/2010 (ASSESSMENT YEAR: 2004-05 ITA NO.6964/MUM/2008 (ASSESSMENT YEAR: 2005-06 20 20 AFRESH IN THE LIGHT OF THE DIRECTIONS OF THE TRIBU NAL (SUPRA) AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND TAKEN B Y THE ASSESSEE IS THEREFORE PARTLY ALLOWED FOR STATISTICA L PURPOSES. 41. IN THE RESULT, THE ASSESSEES APPEAL FOR THE ASSESSMENT YEARS 2004-05 STANDS DISMISSED AND THE A PPEAL FOR THE ASSESSMENT YEAR 2005-06 IS PARTLY ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31ST MAY,2011 . SD SD (R.K.PANDA) (D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 31ST MAY, 2011 SRL:25511 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILED. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI