THE ACIT 13(1), MUMBAI V. M/S. SURENDERA ENGINEERING CORPN ( EXPORT DIVISION), MUMBAI

ITA 7065/MUM/2007

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6326 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 11-11-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 28-11-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANKUR GARG
• Keywords: Business expenditure; Question of law
• Section: 143(3); 80HHC; 37(1); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 7065/MUM/2007 (ASSESSMENT YEAR: 2004-05) ACIT - 13(1) M/S. SURENDRA ENGINEERING CORPN. ROOM NO. 421, 4TH FLOOR 1, JAITHIRTH MANSION, 6A BA RRACK RD. AAYAKAR BHAVAN, M.K. ROAD VS. BEHIND METRO, MUMBAI 400020 MUMBAI 400020 PAN - AAAFS 5017 M APPELLANT RESPONDENT ITA NO. 7037/MUM/2007 (ASSESSMENT YEAR: 2004-05) M/S. SURENDRA ENGINEERING CORPN. INCOME TAX OFFICER - 13(2)(5) 1,JAITHIRTH MANSION, 6A BARRACK RD. AAYAKAR BHAVAN, M.K. ROAD BEHIND METRO, MUMBAI 400020 VS. MUMBAI 400020 PAN - AAAFS 5017 M APPELLANT RESPONDENT ITA NO. 5599/MUM/2008 (ASSESSMENT YEAR: 2005-06) DCIT - 12(2) M/S. SURENDRA ENGINEERING CORPN. ROOM NO. 114, AAYAKAR BHAVAN 1,JAITHIRTH MANSION, 6 A BARRACK RD. M.K. ROAD, MUMBAI 400020 VS. BEHIND METRO, MUMBAI 400020 PAN - AAAFS 5017 M APPELLANT RESPONDENT ITA NO. 5293/MUM/2008 (ASSESSMENT YEAR: 2005-06) M/S. SURENDRA ENGINEERING CORPN. ADDL. CIT, RANGE 3 (1) 1, AITHIRTH MANSION, 6A BARRACK RD. AAYAKAR BHAVAN, M.K. ROAD BEHIND METRO, MUMBAI 400020 VS. MUMBAI 400020 PAN - AAAFS 5017 M APPELLANT RESPONDENT REVENUE BY: SHRI ANKUR GARG ASSESSEE BY: SHRI SANJAY PARIKH ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 2 O R D E R PER J. SUDHAKAR REDDY, A.M. THESE ARE CROSS APPEALS BY THE REVENUE AND ASSESSEE FOR THE ASSESSMENT YEARS 2004-05 & 2005-06 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A PARTN ERSHIP FIRM AND IS ENGAGED IN THE BUSINESS OF EXPORT OF SUGAR MILL MAC HINERY, HARDWARE, SPARES, PVC FILMS, ELECTRICAL ITEMS, POLYPROPYLENE BAGS, ETC. IT FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2003-04 ON 01.11.2004 DE CLARING TOTAL INCOME OF ` 1,24,47,367/-. THE A.O. COMPLETED THE ASSESSMENT UN DER SECTION 143(3) ON 26.12.2006 ASSESSING THE INCOME AT ` 2,1,24,97,367/- INTER ALIA DISALLOWING/RESTRICTING THE CLAIM OF THE ASSESSEE U NDER SECTION 80HHC, 80HHB AND ALSO DISALLOWING EXPENDITURE ON ACCOUNT O F INTEREST, KEY MAN INSURANCE, ETC. AGGRIEVED, ASSESSEE CARRIED THE MAT TER IN APPEAL WITH PARTIAL SUCCESS. COMING TO A.Y. 2005-06, ASSESSEE FILED ITS RETURN OF INCOME ON 30.10.2005 DECLARING TAXABLE INCOME AT ` 1,91,48,570/-. ASSESSMENT UNDER SECTION 143(3) WAS COMPLETED ON 17.12.2007 DETERMIN ING THE INCOME AT ` 2,28,68,610/-. THE A.O. INTER ALIA DISALLOWED PARTI ALLY THE EXPENDITURE CLAIM UNDER MOTOR CAR EXPENSES, TELEPHONE EXPENSES, ADVERTISEMENT EXPENSES, ETC. DISALLOWANCE UNDER SECTION 40A(IA) W AS ALSO MADE ON ACCOUNT OF INTEREST AND ON ACCOUNT OF CONTRACT. DISALLOWANC E WAS ALSO MADE ON DONATIONS. AGGRIEVED ASSESSEE CARRIED THE MATTER IN APPEAL TO THE FIRST APPELLATE AUTHORITY, WHO GRANTED PARTIAL RELIEF. AG GRIEVED, BOTH THE PARTIES ARE IN APPEAL. 3. WE HAVE HEARD SHRI SANJAY PARIKH, THE LEARNED COUNS EL FOR THE ASSESSEE AND SHRI ANKUR GARG, THE LEARNED D.R. 4. WE WOULD NOW BE DISPOSING ALL THE CASES GROUND-WISE . 5. WE FIRST TAKE UP THE DEPARTMENTAL APPEAL IN ITA NO. 7065/MUM/2007 . 6. THE FIRST GROUND IS ON THE ISSUE OF DEDUCTION OF SA LE TAX REFUND FROM THE COST OF GOODS EXPORTED OUT OF INDIA FOR THE PUR POSE OF COMPUTING ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 3 DEDUCTION UNDER SECTION 80HHC. BOTH THE PARTIES POI NTED OUT THAT TYPOGRAPHICAL ERROR IN THIS GROUND WHERE INSTEAD OF SALES TAX REFUND IT WAS TYPED AS CENTRAL EXCISE REFUND. WE TAKE NOT O F THIS. THIS ISSUE IS CLAIMED AS COVERED IN FAVOUR OF THE ASSESSEE IN ASS ESSEES OWN CASE FOR EARLIER ASSESSMENT YEAR IN ITA NO. 5856/MUM/2006 DA TED 13.01.2010 WHEREIN THE TRIBUNAL AT PARA 19 & 20 OBSERVED AS FO LLOWS: - 19. IN GROUND NO. 2 OF ITS APPEAL, REVENUE HAS CHA LLENGED THE ACTION OF LD. CIT(A) IN DIRECTING THE A.O. TO REDUCE THE C ENTRAL EXCISE REFUND OF RS.22,34,096/-, SALES TAX REFUND OF RS.2,18,706/- A ND OCTROI REFUND OF RS.12,086/- FROM THE COST OF THE GOODS AS AGAINST T AKEN AS INCOME NOT DERIVED FROM THE EXPORT FOR THE PURPOSE OF DEDUCTIO N U/S. 80HHC BY THE A.O. 20. THE AMOUNTS IN QUESTION WERE EXCLUDED BY THE A. O. FROM THE ELIGIBLE PROFITS FOR THE PURPOSE OF COMPUTING DEDUC TION U/S. 80HHC. BEFORE THE LD. CIT(A), AN ALTERNATIVE CONTENTION WA S RAISED ON BEHALF OF THE ASSESSEE CLAIMING THAT THE AMOUNTS IN QUESTION BEING REFUND OF TAXES AND DUTIES PAID ARE LIABLE TO BE REDUCED FROM THE C OST OF MATERIAL EXPORTED. THIS ALTERNATIVE CONTENTION OF THE ASSESS EE WAS ACCEPTED BY THE LD. CIT(A) RELYING, INTER ALIA, ON THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SUKI EXPORTS RENDERED V IDE ITS ORDER DATED 21.12.2001 PASSED IN ITA NO. 3225/MUM/97. AT THE TI ME OF HEARING BEFORE US, THE LEARNED D.R. HAS NOT BEEN ABLE TO CI TE ANY JUDICIAL PRONOUNCEMENT IN FAVOUR OF THE REVENUE ON THIS ISSU E. WE, THEREFORE, RESPECTFULLY FOLLOW THE DECISION OF THE TRIBUNAL IN THE CASE OF SUKI EXPORTS (SUPRA) AND UPHOLD THE IMPUGNED ORDER OF TH E LD. CIT(A) GIVING RELIEF TO THE ASSESSEE ON THIS ISSUE. GROUND NO. 2 OF REVENUES APPEAL IS ACCORDINGLY DISMISSED. 7. THE LEARNED D.R. RELIED UPON THE DECISION OF THE HO N'BLE JURISDICTIONAL HIGH COURT IN I.T. APPEAL NO. 2186 OF 2009 IN THE C ASE OF CIT VS. M/S. DRESSER RAND INDIA PVT. LTD. ORDER DATED 8 TH APRIL 2010. 8. WE HAVE CAREFULLY CONSIDERED THIS DECISION. AT PARA 17 OF THE ORDER ON PAGE 22 IT IS HELD AS FOLLOWS: - 17. DURING THE COURSE OF THE SUBMISSIONS, IT IS CO NCEDED BY COUNSEL FOR THE ASSESSEE THAT THE DISCUSSION IN RESPECT OF THE ISSUE OF PROCESSING CHARGES AS AN INDEPENDENT INCOME UNRELATED TO EXPOR T, WOULD SIMILARLY APPLY TO THE OTHER ISSUE RAISED IN THE QUESTION OF LAW FRAMED BY THE REVENUE VIZ. IN REGARD TO RECOVERY OF FREIGHT, INSU RANCE AND PACKING RECEIPTS, SALES TAX REFUND AND SERVICE INCOME. IN THE CIRCUMSTANCES, THE QUESTION OF LAW SHALL STAND ANSWERED IN FAVOUR OF T HE REVENUE AND AGAINST THE ASSESSEE. THE APPEAL IS ACCORDINGLY ALL OWED. ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 4 9. WE RESPECTFULLY FOLLOW THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT ON THE MATTER. THE LEARNED COUNSEL FOR THE AS SESSEE TRIED TO DISTINGUISH THIS DECISION. BUT THE FACT IS, WHEN SA LES TAX IS TO BE ELIMINATED FROM THE TOTAL TURNOVER, THEN THE REFUND OF SALES T AX CANNOT IN ANY MANNER BE ALLOWED TO REDUCE THE COST OF GOODS. HENCE FOLLO WING THE HON'BLE JURISDICTIONAL HIGH COURT ORDER, WE ALLOW THIS GROU ND OF THE REVENUE. 10. GROUND NO. 2 IS ON THE ISSUE WHETHER THE CIT(A) WAS RIGHT IN DIRECTING THAT THE EXPORT RECEIPTS WHICH ARE NOT REALISED AND THUS WHICH DO NOT FORM PART OF EXPORT TURNOVER SHOULD BE REDUCED FROM THE DIRECT COST. THIS ISSUE, AS BOTH PARTIES AGREED, IS ALSO COVERED IN FAVOUR O F THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF THE B BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 2574/MUM/2002 FOR A.Y. 1998-99 DATED 1 ST JUNE 2006, WHICH IN TURN FOLLOWED THE RATIO LAID DOWN BY THE H ON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KANTILAL CHOTALAL 246 ITR 439 AS WELL AS THE DECISION IN ITA NO. 6207/MUM/2006 AND ITA NO. 6490/ MUM/2006 DATED 12 TH MARCH 2010. RESPECTFULLY FOLLOWING THE SAME WE UPH OLD THE ORDER OF THE FIRST APPELLATE AUTHORITY AND DISMISSED THE GROUND. 11. COMING TO GROUND NO. 3, THE REVENUE DISPUTES THE CI T(A)S FUNDING THAT THE KEYMAN INSURANCE PREMIUM PAID HAS TO BE AL LOWED AS DEDUCTION. THIS ISSUE NOW STANDS COVERED BY THE DECISION OF TH E HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. B.N. EXPORTS 323 ITR 178. RESPECTFULLY FOLLOWING THE SAME WE DISMISS THIS GROUND OF THE RE VENUE. THUS THE REVENUE APPEAL IS ALLOWED IN PART. 12. WE NOW TAKE UP ASSESSEES APPEAL IN ITA NO. 7037/MUM/2007 . THE FIRST ISSUE IS ON NON-DEDUCTION OF 10% OF INCENTIVE S FROM INDIRECT EXPENSES FOR THE PURPOSE OF COMPUTATION OF DEDUCTION UNDER S ECTION 80HHC. THIS ISSUE STANDS COVERED IN FAVOUR OF THE ASSESSEE BY T HE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF HERO EXPORTS 295 ITR 4 54. RESPECTFULLY FOLLOWING THE SAME WE ALLOW THIS GROUND OF THE ASSE SSEE. 13. SECOND GROUND ALSO IS ON THE ISSUE OF COMPUTATION O F RELIEF UNDER SECTION 80HHC. ASSESSEE CLAIMS DEDUCTION OF 10% OF THE FOREIGN SERVICE CHARGE FROM INDIRECT COST. THIS BENCH OF THE TRIBUN AL IN ASSESSEES OWN CASE ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 5 FOR A.Y. 2003-04 IN ITA NO. 6207/MUM/2006 ORDER DAT ED 12 TH MARCH 2010 AT PARA 5, PAGE 3 CONSIDERED THE ISSUE. AT PARA 6 T HE TRIBUNAL HELD AS FOLLOWS: - 6. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND A LSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED BY THE LE ARNED COUNSEL FOR THE ASSESSEE, THE RATIO LAID DOWN BY THE HON'BLE SUPREM E COURT IN THE CASE OF HERO EXPORTS (SUPRA) AS WELL AS BY THE SPECIAL B ENCH OF THE ITAT IN ASSESSEES OWN CASE FOR A.Y. 1995-96 (SUPRA) RENDER ED IN THE CONTEXT OF SIMILAR DEDUCTION IN RESPECT OF EXPORT INCENTIVES E QUALLY APPLIES TO THIS ISSUE. THE LEARNED D.R. HAS NOT DISPUTED THIS POSIT ION. HE, HOWEVER, HAS INVITED OUR ATTENTION TO PARA 7.1 OF THE IMPUGNED O RDER OF THE LEARNED CIT(A) TO CONTENT THAT THE ASSESSEE HAVING CREDITED ONLY THE NET AMOUNT OF FOREIGN EXCHANGE SERVICES TO ITS P & L ACCOUNT, NO FURTHER DEDUCTION FOR INDIRECT EXPENSES RELATING TO FOREIGN SERVICE CHARG ES WAS ALLOWABLE. HOWEVER, AS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE FROM PAGE 44 OF THE PAPER BOOK, ONLY THE DIRECT EXPENSES WERE DEDUCTED BY THE ASSESSEE FOR ARRIVING AT THE NET AMOUNT OF FORE IGN EXCHANGE SERVICES AND THIS BEING SO, FURTHER DEDUCTION ON ACCOUNT OF INDIRECT EXPENSES ATTRIBUTABLE TO FOREIGN SERVICE CHARGES IS ALLOWABL E TO THE ASSESSEE AS HELD IN THE JUDICIAL PRONOUNCEMENTS, WE SET ASIDE T HE IMPUGNED ORDER OF THE LEARNED CIT(A) ON THIS ISSUE AND DIRECT THE A.O . TO ALLOW THE DEDUCTION OF 10% OF FOREIGN SERVICE CHARGES FROM TH E INDIRECT COST OF GOODS EXPORTED FOR THE PURPOSE OF COMPUTING DEDUCTI ON U/S. 80HHC. GROUND NO. 3 OF ASSESSEES APPEAL IS ACCORDINGLY AL LOWED. RESPECTFULLY FOLLOWING THE SAME WE ALLOW THIS GROUN D OF THE ASSESSEE. 14. GROUND NO. 3 IS AN ALTERNATIVE GROUND TO GROUND NO. 2. AS GROUND NO. 2 IS DECIDED IN FAVOUR OF THE ASSESSEE, AS SUBMITTE D BY THE LEARNED COUNSEL THIS GROUND IS DISMISSED AS INFRUCTUOUS. 15. NEXT ISSUE PERTAINS TO COMPUTATION OF RELIEF UNDER SECTION 80HHC ON SALE OF DEPB LICENCE. THE ISSUE NOW STANDS COVERED BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KA LPATARU COLOURS AND CHEMICALS 233 CTR 313. WE SET ASIDE THE ISSUE TO TH E FILE OF THE A.O. FOR FRESH ADJUDICATION IN THE LIGHT OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KALPATARU COLOURS AND CHE MICALS (SUPRA). 16. GROUND NO. 5 IS ON THE ISSUE OF DISALLOWANCE UNDER SECTION 80HHB. THIS DISALLOWANCE HAS BEEN MADE ON THE GROUND THAT THE ASSESSEE HAS NOT MAINTAINED SEPARATE ACCOUNTS. THIS BENCH OF THE TRI BUNAL IN ASSESSEES OWN CASE FOR A.Y. 2003-04 AT PARA 8 HAS HELD AS FOLLOWS : - ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 6 8. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND AL SO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT TH E CLAIM OF THE ASSESSEE FOR DEDUCTION U/S. 80HHB IN RESPECT OF PROFITS CLAI MED TO BE DERIVED FROM PROJECTS EXECUTED IN FOREIGN COUNTRIES SUCH AS SUDA N, MALASIA ETC. WAS DISALLOWED BY THE A.O. ON THE GROUND THAT NO SEPARA TE BOOKS OF ACCOUNT IN RESPECT OF ACTIVITIES RELATING TO THE SAID PROJE CTS WERE MAINTAINED BY THE ASSESSEE. THE LD. CIT(A) AGREED WITH THE CONTE NTION RAISED ON BEHALF OF THE ASSESSEE IN THIS REGARD THAT THERE WAS NO RE QUIREMENT OF MAINTENANCE OF SEPARATE ACCOUNTS IN RESPECT OF EXEC UTION OF FOREIGN PROJECTS AND ONLY REQUIREMENT WAS THAT PROFIT DERIV ED FROM THE SAID PROJECT SHOULD BE PROPERLY DEDUCED FROM THE BOOKS O F ACCOUNT MAINTAINED BY THE ASSESSEE. THE LD. CIT(A) FOUND T HAT EVEN THOUGH SEPARATE ACCOUNTS IN RESPECT OF EXECUTION OF CONTRA CTS IN FOREIGN COUNTRIES WERE CLAIMED TO BE MAINTAINED BY THE ASSESSEE IN TH E SAME BOOKS OF ACCOUNT, THERE WAS NO SEPARATE ACCOUNTS FOR LARGE N UMBER OF EXPENDITURE. HE FOUND THAT SUCH EXPENDITURE WAS AP PORTIONED BY THE ASSESSEE ON PROPORTIONATE BASIS WHICH COULD NOT BE SAID TO BE MAINTENANCE OF SEPARATE ACCOUNTS. HE, THEREFORE, C ONFIRMED THE DISALLOWANCE MADE BY THE A.O. ON ACCOUNT OF ASSESSE ES CLAIM FOR DEDUCTION U/S. 80HHB. AS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US, A SIMILA R ISSUE HAD COME UP FOR CONSIDERATION BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2001-02 WHEREIN THE APPEAL FILED BY THE ASSESSEE AG AINST THE ORDER PASSED BY THE LD. CIT U/S. 263 WAS DISPOSED OF BY T HE TRIBUNAL VIDE ITS ORDER DATED 29.5.2009 IN ITA NO. 112/MUM/08. IN TH E SAID ORDER, A COPY OF WHICH IS PLACED AT 134 TO 141 OF THE ASSESS ES PAPER BOOK, IT WAS HELD BY THE TRIBUNAL THAT THE REQUIREMENT OF SE CTION 80HHB IS THAT THE ASSESSEE SHOULD MAINTAIN SEPARATE ACCOUNTS AND THERE IS NOTHING TO INDICATE THAT HE SHOULD MAINTAIN SEPARATE BOOKS OF ACCOUNT. THIS POSITION IS ACCEPTED EVEN BY THE LD. CIT(A) IN HIS IMPUGNED ORDER PASSED FOR THE YEAR UNDER CONSIDERATION. ACCORDING TO HIM , THERE WAS, HOWEVER, NO MAINTENANCE OF EVEN SEPARATE ACCOUNTS BY THE ASS ESSEE IN RESPECT OF EXECUTION OF FOREIGN PROJECTS AS NO SEPARATE ACCOUN TS WERE MAINTAINED FOR LARGE NUMBER OF EXPENDITURE AND SUCH EXPENDITUR E WAS APPORTIONED BY THE ASSESSEE ON PROPORTIONATE BASIS. IN THIS RE GARD, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE COPIES OF RELEVANT FINANCIAL STATEMENTS PLACED IN THE PAPER B OOK TO POINT OUT THAT MOST OF THE EXPENDITURE WAS APPORTIONED BY THE ASSE SSEE ON ACTUAL BASIS AND THE LD. CIT(A) WAS NOT CORRECT IN HOLDING THAT NO SEPARATE ACCOUNTS FOR A LARGE NUMBER OF EXPENDITURE WERE MAI NTAINED BY THE ASSESSEE. IN OUR OPINION, THIS ASPECT OF THE MATTE R REQUIRES VERIFICATION FROM THE ACTUAL RECORDS. ACCORDINGLY, WE RESTORE T HIS ISSUE TO THE FILE OF THE A.O. FOR THE LIMITED PURPOSE OF VERIFYING AS TO WHETHER SEPARATE ACCOUNTS MAINTAINED BY THE ASSESSEE IN RESPECT OF E XECUTION OF FOREIGN PROJECTS IN THE SAME SET OF BOOKS OF ACCOUNT ARE SU FFICIENT TO DEDUCE THE PROFIT DERIVED FROM THE SAID PROJECTS AND IF THE AN SWER IS IN AFFIRMATIVE, THE A.O. IS DIRECTED TO ALLOW THE DEDUCTION CLAIMED BY THE ASSESSEE U/S. 80HHB. GROUND NO. 4 OF THE ASSESSEES APPEAL IS AC CORDINGLY ALLOWED FOR STATISTICAL PURPOSE. ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 7 RESPECTFULLY FOLLOWING THE SAME, CONSISTENT WITH TH E VIEW TAKEN THEREIN, WE SET ASIDE THE ISSUE TO THE FILE OF THE A.O. FOR THE LIMITED PURPOSE OF VERIFYING AS TO WHETHER SEPARATE ACCOUNTS ARE MAINTAINED IN R ESPECT OF FOREIGN PROJECT IN THE SAME SET OF BOOKS OF ACCOUNT. IF THE ANSWER IS IN THE AFFIRMATIVE, THE A.O. IS DIRECTED TO ALLOW A DEDUCTION. IN THE RESUL T THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 17. NEXT GROUND IS ON THE ISSUE OF DISALLOWANCE TO INTE REST. THE FACTS AS GIVEN BY THE A.O. IN PAGE NO. 6 OF THIS ORDER IS EX TRACTED FOR READY REFERENCE: ASSESSEE HAS DEBITED INTEREST OF RS.39,04,693/- I N THE PROFIT & LOSS ACCOUNT. HOWEVER, IT IS SEEN THAT THE ASSESSEE HAD INVESTED A SUM OF RS.45.00 LAKHS ON AMBAVALI SAHAR LAKE CITY AND H AS GIVEN LOANS TO THE TUNE OF RS.84.58 LAKHS. TO A QUERY AS TO HOW IN TEREST ON SUCH INVESTMENTS AND LOANS SHOULD NOT BE DISALLOWED BEIN G CAPITAL IN NATURE. ASSESSEE STATED THAT THE INVESTMENTS IN AMBAVALI SA HAR LAKE CITY HAS BEEN BASICALLY MADE FOR THE PURPOSE OF MAKING IT A GUEST HOUSE FOR VISITING SALES PARTIES OF THE ASSESSEE FROM ABROAD. ASSUMING THE REPLY OF THE ASSESSEE TO BE CORRECT INTEREST ON THE SAID INV ESTMENT IS DEFINITELY NOT ALLOWABLE IN VIEW OF THE PROVISIONS TO SECTION 36(1 )(III) WHICH IS AS UNDER: PROVIDED THAT ANY AMOUNT OF THE INTEREST PAID, IN RESPECT OF CAPITAL BORROWED FOR ACQUISITION OF AN ASSET FOR EXTENSION OF EXISTING B USINESS OR PROFESSION (WHETHER CAPITALIZED I THE BOOKS OF ACCOUNT OR NOT); FOR ANY PERIOD BEGINNING FROM THE DATE ON WHICH THE CAPITAL WAS BORROWED FOR ACQUISITION OF T HE ASSET TILL THE DATE ON WHICH SUCH ASST WAS FIRST PUT TO USE, SHALL NOT BE ALLOWED AS DEDUCTION. SIMILARLY, SINCE THE INTEREST BEARING LOANS HAVE B EEN ADVANCED WITHOUT CHARGING ANY INTEREST, THE INTEREST ON SUCH LOANS DOES NOT QUALIFY FOR DEDUCTION U/S. 36(1). SINCE THE CORRESPONDING P RINCIPLE AMOUNT HAS NOT BEEN USED BY THE ASSESSEE WHOLLY AND EXCLUSIVEL Y FOR THE PURPOSE OF BUSINESS. IN THE LIGHT OF THESE FACTS, 15% OF THE I NTEREST AN AMOUNT OF RS.129.58 LAKHS WHICH COMES TO RS.19.43 LAKHS IS DI SALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE BEING NON -BUSINESS EXPENDITURE U/S. 36 R.W.S. 37(1) OF THE I.T. ACT, 1 961. 18. AFTER PLACING RELIANCE ON NUMBER OF DECISIONS THE A .O. DISALLOWED PART OF INTEREST. AGGRIEVED THE ASSESSEE CARRIED THE MAT TER IN APPEAL. THE FIRST APPELLATE AUTHORITY, IN ITS ORDER AT PARA 9.3 AND 9 .4, HAS HELD AS FOLLOWS: - 9.3 BEFORE ME, THE APPELLANT CONTENDS THAT ALL THE LOANS AND ADVANCES WERE GIVEN EARLIER AND NO DISALLOWANCE WAS MADE IN EARLIER YEARS. IT IS CONTENDED THAT LOANS WERE TAKEN FOR PURCHASE OF CAR , PACKING CREDIT FOR EXPORTS, ADVANCES AGAINST FOREIGN BILLS ETC. DISCOU NT AND OVERDRAFT FACILITIES. ALL THESE ARE FOR THE PURPOSE OF BUSINE SS AND HENCE THERE CANNOT BE ANY DISALLOWANCE OUT OF INTEREST PAID. TH E APPELLANT CONTENDS ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 8 THAT IT HAS SUFFICIENT CAPITAL OF ITS OWN. THE TOTA L CAPITAL AND FOREIGN RESERVE IS TO THE EXTENT OF RS.8.62 CRORES WHILE TH E SAID LOAN IS AROUND 10% OF THE CAPITAL. THE APPELLANT POINTS OUT THAT I NVESTMENT IN SAHARA AMBY VALLEY CAN BE SAID TO BE OUT OF PROFIT OF CURR ENT YEAR. THE APPELLANT REFERRED TO A NUMBER OF CASE LAWS TO SUPPORT ITS CA SE. 9.4 I HAVE CONSIDERED THE CONTENTION OF THE APPELLA NT AND THE CASE LAWS GIVEN BY IT. IN MY OPINION, THE DECISION OF PU NJAB & HARYANA HIGH COURT IN THE CASE OF ABHISEK INDUSTRIES (286 ITR 1) WILL APPLY IN THIS CASE. WHERE THE AMOUNT IS ADVANCED FROM A MIXED ACC OUNT, IT WILL NOT AUTOMATICALLY MEAN THAT THE INTEREST FREE LOAN ARE OUT OF INTEREST FREE FUNDS. IN THAT CASE, THE ONUS IS ON THE ASSESSEE TO PROVE THE UTILIZATION OF FUND. THE FACT THAT THE APPELLANT HAS TO TAKE LOAN ITSELF INDICATES THAT ALL ITS OWN FUNDS WERE NOT IN CASH FORM TO BE ADVANCED. IN VIEW OF THIS, IT IS NOT POSSIBLE TO ACCEPT APPELLANTS CONTENTION. THE DISALLOWANCE WAS ALSO MADE UNDER PROVISO TO SECTION 36(1)(III) OF THE I.T . ACT. IN VIEW OF THIS, THE DISALLOWANCE OF RS.14,14,830/- IS CONFIRMED. THE GR OUND FAILS. AGGRIEVED ASSESSEE IS BEFORE US. 19. THE LEARNED COUNSEL FOR THE ASSESSEE DREW ATTENTION OF THE BENCH TO PAGE NO. 3 OF THE PAPER BOOK WHICH CONSISTS OF THE BALANCE SHEET AS ON 31.03.2004 AND SUBMITTED THAT THE ASSESSEE HAS ABOU T ` 4.44 CRORES AS CAPITAL AND ` 70.30 LAKHS AS PROJECT RESERVES. HE POINTED OUT THA T THE ASSESSEE HAS SECURED LOAN OF ` 5.58 CRORES AND UNSECURED LOAN OF ` 1.28 CRORES. HE POINTED OUT THAT HE HAS SUNDRY DEBTORS O F ` 7.98 CRORES. HE REFERRED TO ANNEXURE-2 AND POINTED OUT THAT THE UNS ECURED LOANS AND OTHER SECURED LOANS ARE FROM UNION BANK OF INDIA AND WAS ISSUED AS PACKING CREDIT, ADVANCE AGAINST FOREIGN DISCOUNT BILLS FOR PURCHASES AND OVERDRAFT. HE FURTHER POINTED OUT THAT THE OTHER SECURED LOAN WAS FROM ICICI LOAN AGAINST CAR. HE CONTENDED THAT THE LOANS WERE TAKEN FOR THE PURPOSE OF BUSINESS AND THE INTEREST THEREON SHOULD BE ALLOWED UNDER SECTION 36(1)(III). HE POINTED OUT THAT THE ASSESSEE HAS LOT OF SURPLUS FUNDS AND THAT IT SHOULD BE PRESUMED THAT SURPLUS FUNDS WERE FIRST WITHDRAWN , AS PER THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS. RELIANCE UTILITIES AND POWER LTD. 313 ITR 340. HE FURTHER SUBMITTED TH AT PROVISO TO SECTION 36(1)(III) WILL NOT APPLY AS THE PROVISO COMES INTO PLAY ONLY IN CASES WHERE THERE IS A ACQUISITION FOR THE PURPOSE OF EXPANSION AND MODERNIZATION. HE SUBMITTED THAT THE JUDGEMENT RELIED UPON BY THE CIT (A), I.E. ABHISEK ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 9 INDUSTRIES 286 ITR 1 STANDS OVERRULED BY THE DECISI ON OF THE HON'BLE SUPREME COURT IN THE CASE OF S.A. BUILDERS LTD. VS. CIT 288 ITR 1. 20. THE LEARNED D.R., ON THE OTHER HAND, SUPPORTED THE ORDER OF THE CIT(A) AND SUBMITTED THAT WHEN THE AMOUNT IS ADVANCE FROM A MIXED ACCOUNT, IT WILL NOT AUTOMATICALLY MEAN THAT THE INTEREST FREE LOANS ARE OUT OF INTEREST FREE FUNDS. HE SUBMITTED THAT THE INVESTMENT IS MAD E ON PURCHASE OF A HOUSE IN SAHAR LAKE CITY AND THE AMOUNT GIVEN AS LO ANS WERE NOT FOR BUSINESS PURPOSES AND HENCE INTEREST ON LOANS ALLOC ATE TO THIS UTILIZATION OF FUND, HAS RIGHTLY DISALLOWED BY THE A.O. 21. AFTER HEARING THE RIVAL CONTENTIONS AND CONSIDERING THE FACTS ON RECORD, WE ARE OF THE CONSIDERED OPINION THAT THE D ISALLOWANCE IS BAD IN LAW. THE ASSESSEE HAS THE FOLLOWING CAPITAL ACCOUNT: - I) SHRI SURENDRA R. PARIKH : ` 5.08 CORERS II) SMT. URVASHI S. PARIKH : ` 3.36 CRORES TOTAL : ` 8.44 CRORES ========== 22. FOREIGN PROJECT RECEIPT IS ` 0.17 CRORES. THE SECURED LOAN TAKEN BY THE ASSESSEE IS IN SCHEDULE 2 AND IS EXTRACTED FOR READ Y REFERENCE: - SR. NO. PARTICULARS AMOUNT (RS.) 1 ICICI BANK LOAN AGAINST CAR 2,014,307.22 2 FROM UNION BANK OF INDIA 1. PACKING CREDIT 2. ADVANCE AGAINST FOREING DISCOUNT BILLS FOR PURCHASES 3. OVERDRAFT 40,238,986.82 12,500,000.00 1,085,868.03 55,839,162.07 ============= 23. THE UNSECURED LOANS ARE TO THE TUNE OF ` 1.28 CRORES. ASSESSEE ALSO RECEIVED ADVANCE AGAINST ORDER TO THE TUNE OF ` 48 LAKHS. THE ASSESSEE HAS SUNDRY CREDITORS TO THE TUNE OF ` 3.6 CRORES AND OTHER LIABILITIES TO THE TUNE OF ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 10 ` 3.54 LAKHS. A PERUSAL OF THE RECORD DEMONSTRATES TH AT THE ASSESSEE HAS SUFFICIENT SURPLUS, INTEREST FREE FUNDS. THE HON'BL E BOMBAY HIGH COURT IN THE CASE OF RELIANCE UTILITIES AND POWER LTD. (SUPR A) HAS HELD THAT THE PRESUMPTION IS THAT THE ASSESSEE HAS UTILISED NON-I NTEREST BEARING FUNDS WHEN THERE IS A MIXTURE OF FUNDS. IN THIS CASE, SEC URED LOANS TAKEN BY THE ASSESSEE FROM THE BANKS, ARE ADMITTEDLY FOR SPECIFI C PURPOSES, I.E. PURCHASE OF CAR OR FOR EXPORT CREDIT, PACKING CREDIT, FOREIG N BILLS DISCOUNTING, ETC. SUCH FUNDS, WHICH ARE GRANTED BY THE BANKS FOR SPECIFIC PURPOSES CANNOT BE DIVERTED FOR PURCHASE OF PROPERTY IN SAHAR LAKE CIT Y OR TO GIVEN INTEREST FREE LOANS. THUS WE ARE UNABLE TO UPHOLD THE ORDER OF TH E FIRST APPELLATE AUTHORITY ON THIS ISSUE, AS THERE CANNOT BE A PRESU MPTION THAT BANK FUNDS GRANTED FOR A SPECIFIC PURPOSE HAVE BEEN DIVERTED. 24. COMING TO THE PROVISO OF SECTION 36(1)(III), WE HOL D THAT IT HAS NO APPLICATION TO THE FACTS OF THE CASE. IN THE RESULT THIS GROUND OF THE ASSESSEE IS ALLOWED. 25. COMING TO GROUND NO. 7, IT IS ON THE ISSUE OF A.O. NOT REDUCING THE INDIRECT EXPENSES AS WELL AS THE AMOUNT DISALLOWED BY THE A.O. THE LEARNED COUNSEL FAIRLY CONCEDED THAT THIS ISSUE IS COVERED AGAINST IT BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 199 8-99 IN ITA NO.2574/MUM/2002 DATED 1 ST JUNE, 2006. RESPECTFULLY FOLLOWING THE SAME WE DISMISSED THIS GROUND OF THE ASSESSEE. 26. THE NEXT TWO GROUNDS ARE ON THE ISSUE OF DISALLOWAN CE OF FOREIGN TRAVEL EXPENSES AS WELL AS ADHOC DISALLOWANCE OF 10% OF MO TOR CAR EXPENSES AND TELEPHONE EXPENSES ON ACCOUNT OF PERSONAL USE. 27. THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI SANJAY P ARIKH, SUBMITTED THAT HE HAS VERY GOOD CASE ON MERITS ON THESE ISSUE S, BUT IN VIEW OF THE SMALLNESS OF AMOUNT AND ON THE BELIEF THAT IT WOULD BE OF PRECEDENT FOR THE FUTURE AND TO AVOID UNNECESSARY LITIGATION HE WOULD NOT PRESS THE MATTER. 28. IN VIEW OF THE ABOVE SUBMISSION WE DISMISS THIS GRO UND OF THE ASSESSEE. ACCORDINGLY ASSESSEES APPEAL IS PARTLY A LLOWED FOR STATISTICAL PURPOSE. ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 11 29. NOW WE TAKE UP ASSESSEES APPEAL IN ITA NO. 5293/MUM/2008 FOR A.Y. 2005-06. 30. GROUND A IS AGAINST ADHOC DISALLOWANCE OUT OF MOTOR CAR EXPENSES AND GROUND B IS AGAINST ADHOC DISALLOWANCE OF TELEP HONE EXPENSES. 31. THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI SANJAY P ARIKH, SUBMITTED THAT HE HAS VERY GOOD CASE ON THIS ISSUE BUT IN VIE W OF THE SMALLNESS OF AMOUNT AND ON THE BELIEF THAT IT WOULD BE OF PRECED ENT FOR THE FUTURE AND TO AVOID UNNECESSARY LITIGATION HE WOULD NOT PRESS THE MATTER. 32. GROUND C IS AGAINST DISALLOWANCE OF ADVERTISEMENT E XPENSES. 33. THE A.O. DEALT WITH THIS ISSUE AT PARA 9 OF THE ASS ESSMENT ORDER. THE FACTS ARE BOUGHT OUT THEREIN AND HENCE IT IS EXTRAC TED FOR READY REFERENCE: - 9. OUT OF ADVERTISEMENT EXPENSES DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE C LAIMED DEDUCTION ON ACCOUNT OF ADVERTISEMENT EXPENSES OF R S.8,85,533/- AS AGAINST RS.4,47,609/- IN THE IMMEDIATELY PRECEDING YEAR. THE DETAILS THEREOF WERE CALLED. THE SAME HAVE BEEN FURNISHED B Y THE ASSESSEE. ON GOING THROUGH THESE DETAILS, IT IS SEEN THAT THE AS SESSEE HAS INCLUDED AN AMOUNT OF RS.4,11,000/- GIVEN TO THE ENGINEERING & INDUSTRIAL STORE MERCHANT ASSOCIATION ON 18.06.2004. THE RECEIPT OF THE SAID PAYMENT WAS CALLED FOR. THE PERUSAL OF THE RECEIPT READS AS UNDER. RECEIVED WITH THANKS FROM M/S. SURENDRA ENGINEERIN G CORPORATION (EXPORT DIVISION), THE SUM OF RUPEES FOUR LAKHS ELE VN THOUSAND ONLY BY CHEQUE NO. 375764 DT. 18.06.2004 FOR DONATION TOWARDS NAMING OF ASSOCIATION HALL . IT WILL BE SEEN FROM THE AFORESAID RECEIPT THAT T HE AMOUNT IN QUESTION CANNOT BE TREATED AS A PART OF A DVERTISEMENT EXPENDITURE AS CLAIMED BY THE ASSESSEE, SINCE THE R ECEIPT ITSELF SHOWS THE AMOUNT AS DONATION. IN THIS CONNECTION, THE AUT HORIZED REPRESENTATIVE OF THE ASSESSEE, CONTENDED THAT GIVING OF THE NAME TO THE HALL OF THE ASSOCIATION AMOUNTS TO ADVERTISEMENT AND THEREFORE, THE CLAIM IN THIS RESPECT IS IN ORDER AND BE ACCEPTED ACCORDINGLY. IN FACT, THE RECEIPT IS VERY CLEAR AND CATEGORICAL TO STATE THAT IT IS A DO NATION. IN VIEW OF THIS, THE AMOUNT IS LIABLE TO BE TREATED AS DONATION AND WOULD THEREFORE BE LIABLE FOR DISALLOWANCE. THE DISALLOWANCE OF RUPEES FOUR LAKH ELEVEN THOUSAND IS MADE ACCORDINGLY. 34. FIRST APPELLATE AUTHORITY DISCUSSED THE ISSUE AT PA RA 5 OF THE APPELLATE ORDER. HE UPHELD THE ORDER OF THE A.O. BY ALSO HOLD ING THAT THE EXPENDITURE WAS IN THE NATURE OF CAPITAL AND ALLOWABLE IN THE C APITAL FIELD. ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 12 35. AFTER HEARING THE RIVAL CONTENTIONS WE ARE OF THE C ONSIDERED OPINION THAT THE DONATION IN QUESTION GIVEN TOWARDS NAMING OF THE ASSOCIATION HALL CAN BE CONSIDERED AS ADVERTISEMENT EXPENDITURE. THE AMOUNT WAS GIVEN TO THE TRADE ASSOCIATION, WITH WHICH THE ASSESSEES BU SINESS IS CONNECTED AND IT IS FOR THE PROMOTION OF BUSINESS AND IS NOT GIVE N AS GRATIS. THE ASSESSEES BUSINESS BENEFITS FROM THE ASSOCIATION. NAMING OF T HE HALL GIVES IT MILEAGE AND PUBLICITY. NOMENCLATURE IN THE RECEIPT IS NOT D ETERMINANT OF THE NATURE OF EXPENDITURE. 36. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE ITO VS. V ELUMANICKAM LODGE 123 ITD 25 IN WHICH IT WAS HELD AS FOLLOWS: - SECTION 37(1) OF THE INCOME-TAX ACT, 1961 BUSINE SS EXPENDITURE ALLOWABILITY OF ASSESSMENT YEAR 2004-05 ASSESSE E WAS ENGAGED IN CIVIL CONSTRUCTION BUSINESS AND WAS ALSO RUNNING A PUBLIC TRANSPORT SYSTEM, A CINEMA THEATRE AND A LODGE IT HAD CONST RUCTED A HOCKEY STADIUM IN RELEVANT YEAR AND CLAIMED DEDUCTION OF E XPENDITURE INCURRED IN CONSTRUCTING STADIUM ASSESSING OFFICER DISALLOWED THE CLAIM WHETHER SINCE EXPENDITURE IN QUESTION WAS FOR PROMOTION OF GENERAL PUBLIC WELFARE AND IT WOULD CREATE A LOT OF GOOD WILL FOR BUSINESS OF ASSESSEE, SAME WOULD BE ALLOWABLE AS BUSINESS EXPENDITURE HELD, YES WE RESPECTFULLY FOLLOW THE DECISION OF THE COORDINA TE BENCH. AS NO ASSET IS CREATED, THE EXPENDITURE IS NOT IN THE CAPITAL FIEL D. HENCE WE ALLOW THIS GROUND OF THE ASSESSEE. 37. GROUND D IS ON THE ISSUE OF DISALLOWANCE OF INTERES T. BOTH THE PARTIES SUBMITTED THAT THE FACTS ARE IDENTICAL WITH THE FAC TS FOR A.Y. 2004-05 WHERE SIMILAR INTEREST HAS BEEN DISALLOWED. IN VIEW OF TH E ABOVE SUBMISSION AND CONSISTENT WITH THE VIEW TAKEN BY US WHILE DISPOSIN G OFF THE ISSUE IN A.Y. 2004-05, WE ALLOW THIS GROUND OF THE ASSESSEE. 38. GROUND E IS AGAINST DISALLOWANCE ON ACCOUNT OF DONA TION. 39. THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI SANJAY P ARIKH, SUBMITTED THAT HE HAS VERY GOOD CASE ON THIS ISSUE BUT IN VIE W OF THE SMALLNESS OF AMOUNT AND ON THE BELIEF THAT IT WOULD BE OF PRECED ENT FOR THE FUTURE AND TO AVOID UNNECESSARY LITIGATION HE WOULD NOT PRESS THE MATTER. ACCORDINGLY ASSESSEES APPEAL IS PARTLY ALLOWED. ITA NOS. 7065, 7037, 5599 & 5293/MUM/2007 M/S. SURENDRA ENGINEERING CORPN. 13 40. THIS LEAVES AS WITH REVENUES APPEAL IN ITA NO.5599/MUM/2008 FOR A.Y. 2005-06. THE SOLE GROUND OF APPEAL IS ON THE A LLOWABILITY OF PREMIUM PAID ON THE LIFE OF THE PARTNERS UNDER KEYMAN INSUR ANCE POLICY. THIS ISSUE IS COVERED BY THE DECISION OF THE HON'BLE JURISDICTION AL HIGH COURT IN THE CASE OF CIT VS. B.N. EXPORTS 323 ITR 178. RESPECTFULLY F OLLOWING THE DECISION WE ALLOW THE GROUND. ACCORDINGLY THE APPEAL IS ALLOWED . 41. IN THE RESULT, ITA NO. 7065/MUM/2007 IS DISMISSED, ITA NO. 7037/MUM/2007 AND ITA NO. 5293/MUM/2008 ARE PARTLY ALLOWED AND ITA NO. 5599/MUM/2008 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOVEMBER 2010. SD/- SD/- (V. DURGA RAO) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 26 TH NOVEMBER 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XIII, MUMBAI 4. THE CIT XIII, MUMBAI CITY 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.