Eyegear Optics India Private Limited , Hyderabad V. Asst. Commissioner of Income Tax, Circle-17(1), Hyderabad

ITA 708/Hyd/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6215 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 27-01-2021
• Assessment Year: 2014-2015
• Appeal Filed On: 08-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NIVEDITA BISWAS
• Keywords: Gift; Depreciation; Retrospective amendment; Unabsorbed depreciation; TDS
• Section: 143(3); 234B; 37(1); 194J; 13; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) ITA NO.708/HYD/2019 (ASSESSMENT YEAR : 2014-15) M/S. EYEGEAR OPTICS INDIA PVT. LTD., 8-2-277/A/9, ROAD NO.2, SOUDAGARS SILVER BREEZE, BANJARA HILLS, HYDERABAD-500 034 PAN AACCE 0350Q VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 17(1), HYDERABD. APPELLANT RESPONDENT APPELLANT BY : SHRI AJAY VOHRA. ADV. RESPONDENT BY : SMT. NIVEDITA BISWAS (D.R.) DATE OF HEARING : 27.01.2021. DATE OF PRONOUNCEMENT : 08.04.2021. O R D E R PER SHRI S.S. GODARA, J.M. : THIS ASSESSEES APPEAL FOR ASST. YEAR 2014-15 ARIS ES FROM THE COMMISSIONER OF INCOME TAX (APPEALS)-7, HYDERABADS ORDER DT.20. 03.2019 PASSED IN THE CASE NO.084/CIT(A)-7/2018-19, IN PROCEEDINGS UNDER SECTI ON 143(3) OF INCOME TAX ACT, 1961 (THE ACT). 2 ITA NO.708/HYD/2019 HEARD BOTH THE PARTIES. CASE FILE PERUS ED. 2. THE ASSESSEE HAS PLEADED THE FOLLOWING SUBS TANTIVE GROUNDS IN THE INSTANT APPEAL : I. THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ['CIT(A)'] ERRED ON FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE OF RS.13,80,84,4 00 MADE BY THE ASSESSING OFFICER, ALLEGED TO HE REFERRAL FEES PAID TO DOCTOR S IN VIOLATION OF PUBLIC POLICY AND REGULATIONS FORMULATED BY THE MEDICAL COUNCIL OF IN DIA ('MC!'). 1.1 THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THE PAYMENTS MADE BY THE APPELLANT TO VARIOUS EYE HOSPITALS OPHT HALMOLOGISTS WAS NOT IN VIOLATION OF LAW OR AGAINST PUBLIC POLICY, BUT MERE LY CONSIDERATION! COMPENSATION PAID FOR USE OF DESIGNATED SPACE/ INFRASTRUCTURE IN THEIR PREMISES. 1.2 THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN DISREGARDING THE MEMORANDUM OF UNDERSTANDING (MOU) ENTERED INTO BY THE APPELLANT, HOLDING ALLEGING THE SAME TO BE A SELFSERVING DOCUMENT TO CIRCUMVENT MCI REGULAT IONS. 1.3 THAT THE CIT(A) ERRED IN NOT APPRECIATING TH AT THE MCI REGULATIONS WERE NOT AT ALL BINDING ON PHARMACEUTICAL AND OTHER ALLIED HEAL TH SECTOR COMPANIES AND THEREBY NOT APPLICABLE IN THE CASE OF THE APPELLANT. 1.4 THAT THE C IT(A) FAILED TO APPRECIATE THAT THE CASE OF THE APPELLANT DID NOT FALL UNDER ANY OF THE CLAUSES SPECIFIED IN THE MCI REGUL ATION AND ACCORDINGLY THERE COULD HAVE, EVEN OTHERWISE. BEEN NO VIOLATION OF MCI REGU LATION AS ALLEGED BY THE ASSESSING OFFICER. 3 ITA NO.708/HYD/2019 1.5 WITHOUT PREJUDICE. THE CIT(A) FAILED TO APP RECIATE THAT CONTRAVENTION OF MCI REGULATIONS, IF AT ALL, SHOULD HAVE EVEN OTHERWISE BEEN DECIDED BY MEDICAL COUNCIL AND NOT THE INCOME TAX AUTHORITIES. 2. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN N OT ALLOWING BENEFIT OF SET-OFF OF BROUGHT FORWARD LOSS AND UNABSORBED DEPRECIATION. 3. THAT THE CIT(A) ERRED IN CONFIRMING LEVY OF INTEREST U/S. 234B OF THE ACT. 3. OUR ATTENTION IS DRAWN TO THE CIT(APPEALS) DETAI LED DISCUSSION AFFIRMING THE ASSESSING OFFICERS ACTION DISALLOWIN G THE IMPUGNED REFERRAL FEE CLAIM AS UNDER : 4. GROUND NOS.1, 2 & 4 ARE AGAINST DISALLOWANCE OF EXPENSE OF RS.13,80,84,400. THE ONLY ISSUE UNDER CONSIDERATION IS CLAIM OF REFE RRAL FEE OF RS.13,80,84,400F- IN THE GARB OF RENTS PAID FOR USAGE OF THE PREMISES. THE A SSESSING OFFICER OBSERVED THAT THE APPELLANT HAS CLAIMED REFERRAL FEES OF RS.13,80 ,84,400J- IN THE P&L ACCOUNT AS DEDUCTION. THE ASSESSING OFFICER DISBELIEVED THE CO NTENTION OF THE APPELLANT THAT THESE AMOUNTS ARE IN THE NATURE OF RENTS PAID FOR U SAGE OF THE PREMISES BASED ON THE MOU SIGNED BETWEEN ASSESSEE AND DOCTORS OR INST ITUTIONS CONTROLLED BY DOCTORS. THE ASSESSING OFFICER OBSERVED THAT PAYMENT OF REFE RRAL FESS IS AGAINST RULE OF ETHICS FRAMED BY INDIAN MEDICAL COUNCIL. ON THE OTHER HAND , THE AR OF THE APPELLANT DRAWN TO MY ATTENTION ONE OF THE MOU SIGNED BY ASSESSEE W ITH ONE OF THE PARTIES TO WHOM THE REFERRAL FEES WERE PAID. IT WAS THE CONTENTION OF THE AR OF THE APPELLANT THAT THE AMOUNTS WERE PAID TO THE DOCTOR IN CONSIDERATION FO R LEASE/SUB-LEASE OF THE PREMISES OWNED BY THE DOCTORS OR THE INSTITUTIONS C ONTROLLED BY DOCTORS. THE PAYMENTS WERE MADE AT THE RATE-OF 30% OF THE PROFIT S UNDER REVENUE SHARING BASIS. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APP ELLANT MADE THE FOLLOWING SUBMISSIONS: 'THE AFORESAID CONTENTIONS OF THE APPELLANT MAY BE SUMMARIZED AS UNDER: 4 ITA NO.708/HYD/2019 SINCE THE GENUINENESS OF EXPENSES INCURRE D BY THE APPELLANT IS NOT IN DOUBT AND SUCH AMOUNT HAS BEEN EXPENDED WHOLLY FOR BUSINE SS PURPOSES, THE SAME IS ALLOWABLE AS DEDUCTION UNDER SECTION 37 OF THE ACT; MCI GUIDELINES CANNOT OVERRIDE PROVISIONS OF THE A CT; MCI GUIDELINES ARE IN ANY CASE NOT APPLICABLE IN C ASE OF PHARMACEUTICAL AND OTHER MEDICAL DEVICE COMPANIES A ND CONSEQUENTLY NOT APPLICABLE IN THE CASE OF THE APPELLANT; THE CASE OF THE APPELLANT DOES NOT FALL UNDE R ANY OF THE STIPULATED VIOLATIONS SPECIFIED IN THE NO GUIDELINES; CONTRAVENTION OF MCL REGULATIONS, IF AT ALL, SHOUL D BE DECIDED BY MEDICAL COUNCIL AND NOT THE INCOME TAX AUTHORITIES. FOR THE AFORESAID REASONS, IT IS RESPECTFULLY SUBMI TTED THAT THE DISALLOWANCE OF RS13,80,84,400 MADE BY THE ASSESSING OFFICER IS LEG ALLY UNSUSTAINABLE AND CALLS FOR BEING DELETED IN TOTO. RE: DISCIPLINARY MEASURE CANNOT CONSTITUTE OFFENCE/ INFRACTION OF LAW WITHOUT PREJUDICE TO THE ABOVE AND EVEN OTHERWISE, IT IS SUBMITTED THAT THERE IS A FUNDAMENTAL DISTINCTION BETWEEN 'AN OFFENCE' AND 'D ISCIPLINARY ACTION/PROCEEDINGS', WHEREAS DISCIPLINARY PROCEEDI NGS ARE INTENDED TO GOVERN! REGULATE THE CONDUCT OF CERTAIN CLASS OF PERSONS WH O ARE EXPECTED TO ADHERE TO CERTAIN PRESCRIBED STANDARDS, AN OFFENCE IS A WRONG AGAINST THE PUBLIC AT LARGE AND IS COMMITTED IN VIOLATION OF THE DUTY WHICH THE WRO NGDOER OWES TO THE SOCIETY/ PUBLIC AT LARGE, AND IS PUNISHABLE WITH FINE OR PRO SECUTION, OR BOTH. ONE OF THE PARAMETERS FOR CLASSIFYING ANY PROCEEDIN GS AS DISCIPLINARY PROCEEDINGS OR CRIMINAL PROCEEDINGS IS THAT WHILE CRIMINAL OFFE NCE IS PUNISHABLE WITH 5 ITA NO.708/HYD/2019 IMPRISONMENT OR FINE, PROFESSIONAL MISCONDUCT IS VI SITED BY REQUISITE ACTION BY THE DISCIPLINARY AUTHORITY DESIGNATED TO GOVERN / REGUL ATE SUCH PROFESSIONALS. RELIANCE IS PLACED ON THE DECISION OF KOLKATA BENCH OF TRIBUNAL IN THE CASE OF APAMA AGENCY LTD VS. ITO: 163 ITO 511 WHEREIN IT WAS HELD THAT THE TERM 'OFFENCE' IN EXPLANATION TO SECTION 37(1) SHOULD BE UNDERSTOOD I N THE LIGHT OF THE DEFINITION GIVEN IN 3(38) OF THE GENERA/CLAUSES ACT, 1887. THE SAID DEFINITION READS AS FOLLOWS: 'OFFENCE' SHALL MEAN ANY ACT OR OMISSION MADE PUNIS HABLE BY ANY LAW FOR THE TIME BEING IN FORCE. THUS, AN ACT TO CONSTITUTE AN OFFEN CE SHOULD THUS BE PUNISHABLE UNDER ANY LAW. REFERENCE, IN THIS REGARD, MAY BE MADE TO THE FOLLO WING DECISIONS: NOIDA ENTREPRENEURS ASSOCIATION VS. NAIDA & OTHERS : AIR 2007 SC 1161, (2007) 10 SCC 395 (REFER PARA 9) SUBRAMANI GOPLAKRISHNAN V5. ICAL : (2011) 181 DLT 2 80 (REFER PARA 28). PRASHANT SINGH GARG VS, STATE OF UP: WP NO. 9925 (M B) OF 2010. P J RATNAM VS. D .KANIRAM: AIR 1961 SC 244 (REFER P ARA 3 & 11) TO THE SAME EFFECT ARE THE ENGLISH DEC ISIONS IN THE FOLLOWING CASES: R V. HAMPSHIRE COUNTY COUNCIL: (1985) 1 WLR 749 PUBLIC SERVICE BOARD OF NEW SOUTHWALES VS . ETHERTON: (1985) 1 NSWLR 430. HARD CASTLE VS. COMMISSIONER OF POLICE: (1984) 53 A LR 593. IN VIEW OF THE AFORESAID LEGAL POSITION, IT IS SUBM ITTED THAT THE PROHIBITION AS TO RECEIPT OF GIFTS / TRAVEL FACILITIES/ CASH INCENTIV ES ARE, IN THE REALM OF PROFESSIONAL CONDUCT, THE VIOLATION OF WHICH INVITES DISCIPLINAR Y ACTION QUA. THE RECIPIENT, WHO VIOLATES THE CODE OF CONDUCT REGULATING HIS PROFESS ION/CALLING, BUT THE SAME DOES NOT AMOUNT TO AN OFFENCE PUNISL1ABLE IN LAW. 6 ITA NO.708/HYD/2019 HAVING REGARD TO THE AFORESAID REGULATIONS, IT IS S UBMITTED THAT THE RECEIPT OF GIFTS, TRAVEL FACILITIES AND/OR CASH AND/OR MONETARY INCEN TIVES BY THE HOSPITALS AND INDIVIDUAL MEDICAL PRACTITIONER(S) WOULD NOT, IN AN Y EVENT, CONSTITUTE AN OFFENCE, EVEN IF IT IS CERTAINLY PROHIBITED BY LAW, CONSIDER ING THAT THE REGULATIONS HAVE THE FORCE OF LAW. IN THIS REGARD, IT IS FURTHER RESPECTFULLY SUBMITTE D THAT WHILE THE 'RECEIPT' OF GIFT, CASH, MONETARY GRANT ETC. BY A DOCTOR/ MEDICAL PRAC TITIONER FROM A PHARMACEUTICAL OR ALLIED HEALTH SECTOR COMPANY, AMOUNTS TO PROFESS IONAL MISCONDUCT AND IS THUS PROHIBITED IN LAW, BUT THERE IS NO BAR IN ANY LAW O N THE GIVER. IN OTHER WORDS, NEITHER THE MAKING OF SUCH GIFT NOR THE PURPOSE BEHIND MAK ING OF SUCH GIFT IS PROHIBITED BY LAW. FURTHER, APART FROM THE ABOVE, IT MAY ALSO BE APPRE CIATED THAT THE PROVISIONS OF EXPLANATION TO SECTION 37(1) DF THE ACT ARE NOT PAR I MATERIA WITH PROVISIONS OF SECTION 23 OF THE INDIAN CONTRACT ACT, 1872, WHICH RENDER UNENFORCEABLE ANY AGREEMENT, THE CONSIDERATION OR OBJECT OF WHICH IS 'FORBIDDEN BY LAW OR IS OF SUCH A NATURE THAT, IF PERMITTED, IT WOULD DEFEAT THE PR OVISIONS OF ANY LAW OR IS FRAUDULENT OR INVOLVES OR IMPLIES INJURY TO THE PERSON OR PROP ERTY OF ANOTHER OR THE COURT REGARDS IT AS IMMORAL, OR OPPOSED TO PUBLIC POLICY' . AS OPPOSED TO THE PROVISIONS OF SECTION 23 OF THE CONTRACT ACT, THE SCOPE DF SECTIO N 37 OF THE ACT IS RESTRICTED TO AN ACT/OMISSION WHICH IS 'PROHIBITED BY LAW'. IN THE INSTANT CASE, THE AFORESAID ARRANGEMENT OF S ETTING UP SHOPS/CENTERS IN THE CLOSE VICINITY OF HOSPITALS / CLINICS IS, IN OUR RE SPECTFUL SUBMISSION, NOTHING MORE THAN A STRATEGIC BUSINESS DECISION AND PAYMENTS MAD E IN PURSUANCE THERETO ARE 7 ITA NO.708/HYD/2019 PURELY TO ADVANCE BUSINESS INTEREST. THUS, IT IS SU BMITTED THAT THE PURPOSE BEHIND INCURRING THE EXPENDITURE IS THE ADVANCEMENT OF BUS INESS WHICH IS PURELY COMMERCIAL AND FLAT THE ONE WHICH IS PROHIBITED BY LAW. IT IS FURTHER SUBMITTED THAT WHILE DETERMINING THE APPLICABILITY OF THE ABOVE EXPLANATION, ONE HAS TO ADOPT THE 'PURPOSE' TEST, I .E., THE PURPOSE FOR WHICH THE EXPENDITURE IS INCURRED HAS TO BE SEEN FROM THE STA NDPOINT OF THE PERSON INCURRING THE EXPENDITURE (IN PRESENT CASE, THE APPELLANT). I F THE PURPOSE OF THE EXPENDITURE IS NOT PROHIBITED BY LAW VIS-A-VIS THE PERSON INCUR RING THE EXPENDITURE, THE MISCHIEF OF EXPLANATION TO SECTION 37(1) OF THE ACT WOULD NO T BE TRIGGERED SO AS TO RENDER THE EXPENDITURE INELIGIBLE FOR DEDUCTION. IN VIEW OF THE AFORESAID LEGAL POSITION AS AFORESAI D, SINCE 'PAYMENT' OF CONSIDERATION! COMPENSATION TO' DOCTORS FOR USE OF PREMISES AND FOR AVAILING LOCATIONAL ADVANTAGE OF IN-HOUSE PATIENTS IS NOT PE R SE PROHIBITED UNDER ANY LAW AND THE PURPOSE THEREOF IS MERELY TO SECURE A COMME RCIAL ADVANTAGE, WHICH IS NOT PROHIBITED IN LAW, THE PROVISIONS OF EXPLANATION TO SECTION 37(1) OF THE ACT WILL NOT APPLY . JUDGEMENT RELIED UPON BY THE ASSESSING OFFICER - DI STINGUISHABLE IN THE IMPUGNED ASSESSMENT ORDER, THE ASSESSING OFF ICER HAS RELIED UPON THE JUDGEMENT OF THE PUNJAB .& HARYANA HIGH COURT IN TH E CASE OF CIT VS, KAP SCAN AND DIAGNOSTIC CENTRE (P.) LTD. 344 ITR 476, WHEREIN CO MMISSION PAID TO PRIVATE DOCTORS FOR REFERRING PATIENTS FOR DIAGNOSIS TO THE ASSESSE COMPANY WAS HELD TO BE IN VIOLATION OF PUBLIC POLICY AND THEREBY DISALLOWABLE IN TERMS OF EXPLANATION TO SECTION 37(1) OF THE ACT. 8 ITA NO.708/HYD/2019 IN REBUTTAL, IT IS SUBMITTED THAT THE AFORESAID DEC ISION CANNOT BE APPLIED IN THE PRESENT CASE AS THE PAYMENTS MADE BY THE APPELLANT IS NOT IN VIOLATION OF ANY LAW OR OPPOSED TO PUBLIC POLICY, BUT MERELY CONSIDERATI ON/COMPENSATION PAID FOR READY ACCESS TO IN-HOUSE PATIENTS BY MAKING AVAILABLE PRE MISES! INFRASTRUCTURE, WITHOUT CONFERRING ANY PERSONAL OR INDIVIDUAL BENEFIT TO ME DICAL PRACTITIONERS. FURTHER, IT IS SUBMITTED THAT IN THE AFORESAID DECISION RELIED UPO N BY THE ASSESSING OFFICER. THE ISSUE OF NON-APPLICABILITY OF MCI REGULATIONS ON PH ARMACEUTICAL AND OTHER ALLIED HEALTH SECTOR COMPANIES HAS NOT BEEN CONSIDERED. IT MAY ALSO BE APPRECIATED IN THIS REGARD, THAT THE AFORESAID DECISION IN THE CASE OF KAP SCAN (SUPRA) HAS SUBSEQUENTLY BEEN DISTINGUISHE D IN THE FOLLOWING CASES (RELIED UPON SUPRA) ON THE GROUND THAT THE ISSUE OF NON-APP LICABILITY OF MCI REGULATIONS ON PHARMACEUTICAL AND OTHER ALLIED HEALTH SECTOR CO MPANIES HAS NOT BEEN CONSIDERED IN THE SAID DECISIONS: _ DR. ANIL GUPTA VS, ACIT: ITA NO. 485 OF 2008 (RAJ ) _ DCLT VS. PHL PHARMA (P) LTD: 184 TT) 1 (MUM) _ M/S. LIFE LINE BIOTECH LTD., VS. ITO: ITA NO. 572 7/DEL/2017 (DEL) _ REDDY'S LABORATORIES LTD. VS. ACIT: 81 TAXMANN. C OM 398 (HYD) IN VIEW OF THE AFORESAID LEGAL POSITION, IT IS SUBM ITTED THAT SINCE 'PAYMENT' OF CONSIDERATION/ COMPENSATION TO DOCTORS FOR USE OF P REMISES AND FOR AVAILING LOCATIONAL ADVANTAGE OF IN-HOUSE PATIENTS IS NOT PE R SE PROHIBITED UNDER ANY LAW AND THE PURPOSE THEREOF IS MERELY TO SECURE A COMME RCIAL ADVANTAGE, WHICH IS NOT PROHIBITED IN LAW, THEREFORE, THE ACTION OF THE ASS ESSING OFFICER IN INVOKING THE 9 ITA NO.708/HYD/2019 PROVISIONS OF EXPLANATION TO SECTION 37(1) OF THE A CT IS UNJUSTIFIED AND HONBLE TO BE REVERSED. RE: ALLEGATIONS OF THE ASSESSING OFFICER APART FROM THE ABOVE, IN THE IMPUGNED ASSESS MENT ORDER, THE ASSESSING OFFICER HAS ALSO ALLEGED THAT THE APPELLANT HAS DEDUCTED TA X AT SOURCE IN TERMS OF SECTION 194J AND 194H OF THE ACT AS OPPOSED TO SECTION 194 -I OF THE ACT MEANING THEREBY THAT THE PAYMENTS WERE NOT IN ESSENCE FOR RENTING O F PREMISES. IN THIS REGARD, IT IS RESPECTFULLY SUBMITTED THAT SINCE THE PAYMENT(S) WERE MADE ON THE BASIS OF TURNOVER, THE APPELLANT, ON A CONSERVATIVE BASIS, DEDUCTED TAX AT SOURCE UNDER SECTION 194J AND 194H ON PAYMENTS M ADE TO DOCTORS AND EYE CENTER(S) RESPECTIVELY. HOWEVER, MERE DEDUCTION OF TAX AT SOURCE UNDER A DIFFERENT HEAD WOULD NOT, IT IS SUBMITTED, CHANGE THE UNDERLY ING CHARACTER/NATURE OF THE TRANSACTION, MORE SO WHEN THE ASSESSING OFFICER HAS NOT BOUGHT ANYTHING ON RECORD TO ESTABLISH THAT THE PAYMENTS WERE NOT MADE FOR AV AILING OF SPACE IN THE PREMISES OF THE EYE CENTER(S). IN SO FAR AS THE ALLEGATION OF THE ASSESSING OFFICER THAT THE APPELLANT HAD ITSELF USED THE TERM 'REFERRAL FEE TO DOCTORS' IN ITS AUDI TED ACCOUNTS, IT IS RESPECTFULLY SUBMITTED THAT IT IS SETTLED LAW THAT FOR THE PURPO SES OF DETERMINING TAX LIABILITY UNDER THE PROVISIONS OF THE ACT, SUBSTANCE OF THE T RANSACTION OVER ITS LEGAL FORM NEEDS TO BE LOOKED AT AND NOMENCLATURE IN THE BOOKS OF ACCOUNTS IS OF NO RELEVANCE. IN THE CASE OF SUPER POLY FABRIKS LTD. VS. C OMMISSIONER OF CENTRAL EXCISE: APPEAL (CIVIL) 1713 OF 2007, THE HON'BLE SUPREME COURT HAS SPECIFICALLY LAID DOWN THE RATIO AS UNDER: 10 ITA NO.708/HYD/2019 THERE CANNOT BE ANY DOUBT WHATSOEVER THAT A DOCU MENT HAS TO BE READ AS A WHOLE. THE PURPORT AND OBJECT WITH WHICH THE PARTIE S THERETO ENTERED INTO A CONTRACT OUGHT TO BE ASCERTAINED ONLY FROM THE TERM S AND CONDITIONS THEREOF. NEITHER THE NOMENCLATURE OF THE DOCUMENT NOR ANY PA RTICULAR ACTIVITY UNDERTAKEN BY THE PARTIES TO THE CONTRACT WOULD BE DECISIVE. THE HON'BRE SUPREME COURT IN THE CASE OF BHOPAL SUGAR INDUSTRIES VS. SALES TAX OFFICER 3 SCC 147 (197N OBSERVED AS UNDER: 9. IT IS WELL-SETTLED THAT WHILE INTERPRETING TH E TERMS OF THE AGREEMENT; THE COURT HAS TO LOOK TO THE SUBSTANCE RATHER THAN THE FORM O F IT. THE MERE FACT THAT THE WORD AGENT OR AGENCY IS USED OR THE WORDS BUYER AN D SELLER ARE USED TO DESCRIBE THE STATUS OF THE PARTIES CONCERNED IS NOT SUFFICIENT TO LEAD TO THE IRRESISTIBLE INFERENCE TH AT THE PARTIES DID IN FACT INTEND THAT THE SAID STATUS WOULD BE CONFERRED. THUS THE MERE F ORMAL DESCRIPTION OF A PERSON AS AN AGENT OR A BUYER IS NOT CONCLUSIVE, UNLESS TH E CONTEXT SHOWS THAT THE PARTIES CLEARLY INTENDED TO TREAT A BUYER AS A BUYER AND NO T AS AN AGENET. SIMILARLY, IN ASSAM SMALL SCALE IND. DEV. CORP. LTD. AND ORS. VS. J.D. PHARMACEUTICALS AND ANR; (2005) 13 SCC 19, ON THE D ECISIVENESS OF THE NOMENCLATURE OF THE AGREEMENT ENTERED INTO BETWEEN THE STATE CORPORATION AND SMALL SCALE INDUSTRIAL UNIT, THE COURT OBSERVED AS UNDER: 'THE EXPRESSIONS ['PRINCIPAL' AND 'AGENT USED IN A DOCUMENT ARE NOT DECISIVE. THE NATURE OF TRANSACTION IS REQUIRED TO BE DETERMINED ON THE BASIS OF THE SUBSTANCE THERE AND NOT BY THE NOMENCLATURE USED. DOCUMENTS ARE TO BE CONSTRUED HAVING 11 ITA NO.708/HYD/2019 REGARD TO THE CONTEXTS THEREOF WHEREFOR_ LABELS _ MAY NOT BE OF MUCH RELEVANCE. : THE KARNAKTAKA HIGH COURT IN THE CASE OF CIT VS. TH E PANBARI TEA CO. LTD 57 ITR 422, ON THE DOCTRINE OF SUBSTANCE OVER FORM OBSERVED A S UNDER: 'UNDER SECTION 105 OF THE TRANSFER OF PROPERTY ACT, A LEASE OF IMMOVABLE PROPERTY IS A TRANSFER OF A RIGHT TO ENJOY THE PROPERTY MADE FOR A CERTAIN TIME, EXPRESS OR IMPLIED OR IN PERPETUITY, IN CONSIDERATION OF A PRI CE PAID OR PROMISED, OR OF MONEY, A SHARE OF CROPS! SERVICE OR ANY OTHER THING OF VAL UE, TO BE RENDERED PERIODICALLY OR ON SPECIFIED OCCASIONS TO THE TRANSFEROR BY THE TRA NSFEREE, WHO ACCEPTS THE TRANSFER ON SUCH TERMS. THE TRANSFEROR IS CALLED THE LESSOR, THE TRANSFEREE IS CALLED THE LESSEE, THE PRICE IS CALLED THE PREMIUM, AND THE MONEY, SHA RE SERVICE OR OTHER THING TO BE SO RENDERED IS CALLED THE RENT. THE SECTION, THERE FORE, BRINGS OUT THE DISTINCTION BETWEEN A PRICE PAID FOR A TRANSFER OF A RIGHT TO E NJOY THE PROPERTY AND THE RENT TO BE PAID PERIODICALLY TO THE LESSOR. WHEN THE INTERE ST OF THE LESSOR IS PARTED WITH (OR A PRICE, THE PRICE PAID IS PREMIUM OR SALAMI. BUT T HE PERIODICAL PAYMENTS MADE FOR THE CONTINUOUS ENJOYMENT OF THE BENEFITS UNDER THE LEASE ARE IN THE NATURE OF RENT. THE FORMER IS A CAPITAL INCOME AND THE LATTER A REV ENUE RECEIPT. THERE MAY BE CIRCUMSTANCES WHERE THE PARTIES MAY CAMOUFLAGE THE REAL NATURE OF TRANSACTION BY USING CLEVER PHRASEOLOGY. IN SOME CASES, THE SO-CAL LED PREMIUM IS IN FACT ADVANCE RENT AND IN OTHERS RENT IS DEFERRED PRICE. IT IS NO T THE FORM BUT THE SUBSTANCE OF THE TRANSACTION THAT MATTERS. THE NOMENCLATURE USED MA Y NOT BE DECISIVE OR CONCLUSIVE BUT IT HELPS THE COURT HAVING REGARD TO OTHER CIRCU MSTANCES, TO ASCERTAIN THE INTENTION OF THE PARTIES. 12 ITA NO.708/HYD/2019 THE AFORESAID PRINCIPLE WAS ALSO APPLIED BY THE KAR NATAKA HIGH COURT IN THE CASE OF CIT VS. H M T LTD 203 ITR 820. THEREFORE, IN SUBSTANCE, SINCE THE AMOUNT OF CONSID ERATION PAID BY THE APPELLANT WAS PREDOMINANTLY FOR USE OF PREMISES OF SUCH EYE C ENTERS FOR SETTING UP ITS OUTLET AND THE INCIDENTAL LOCATIONAL ADVANTAGE GAINED BY T HE APPELLANT BY WAY OF EASY ACCESS TO IN-HOUSE PATIENTS, THE SAME BEING PURELY FOR THE PURPOSE OF BUSINESS WAS ALLOWABLE AS DEDUCTION UNDER SECTION 37(1) OF THE ACT. FURTHER, IN SO FAR AS THE ALLEGATION OF THE ASSESSI NG OFFICER THAT THE MOU NOWHERE SPECIFIED THE NAME OF THE OWNER OF THE PREMISES, IT IS RESPECTFULLY SUBMITTED THAT SINCE THE EYE CENTER(S) HAD SUBLET THE PREMISES TO THE APPELLANT AND RENTAL PAYMENTS WERE TO BE MADE TO SUCH EYE CENTER(S) ALON E, THE NEED FOR MENTIONING THE NAME OF THE OWNER OF THE PREMISES DOES NOT ARIS E AT ALL. THUS, THE ADVERSE INFERENCE SOUGHT TO BE DRAWN BY THE ASSESSING OFFIC ER ON THE ALLEGED GROUND THAT THE NAME OF THE OWNER OF THE PREMISES WAS NOT MENTI ONED IN THE MOU IS WITHOUT ANY BASIS AND CALLS FOR BEING IGNORED. FOR THE AFORESAID CUMULATIVE REASONS, IT IS RESPECT FULLY SUBMITTED THAT THE DISALLOWANCE ORRS.13,80,.84,400 MADE BY THE ASSESSI NG OFFICER CALLS FOR BEING DELETED IN TOTO. 4.1 I HAVE CONSIDERED THE SUBMISSIONS OF THE AP PELLANT AND FINDINGS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER CAREFULLY . THE APPELLANT DID NOT PRODUCE ALL THE MOUS STATED TO HAVE BEEN ENTERED WITH DOCTO RS IN ORDER TO SUPPORT THAT PAYMENTS ARE MADE FOR LEASE OF THE PREMISES. IT IS STATED BY AR OF THE APPELLANT THAT ALL THE PARTIES WITH WHOM THE ASSESSEE HAD ENTERED INTO AGREEMENT OR MOU ARE DOCTORS ONLY. ALL THE PAYMENTS WERE MADE TO DOCTORS AND THE INSTITUTIONS CONTROLLED 13 ITA NO.708/HYD/2019 BY DOCTORS ONLY. THE PAYMENTS ARE FIXED AT A PARTIC ULAR PERCENTAGE UNDER REVENUE SHARING BASIS. THE ALLEGED LEASE OF THE PREMISES IS NOTHING BUT REFERRAL FEES WHICH ARE ACCOUNTED IN THE BOOKS OF ACCOUNTS. THERE, CAN NOT BE ANY PERCENTAGE OF PROFITS FOR THE LEASE OF ANY PREMISES HAVING A FIXED AREA. THE CLAIM MADE BY THE APPELLANT THAT AMOUNTS ARE PAID FOR LEASE OF THE PREMISES IS NOT ACCEPTABLE. THE APPELLANT HAS ACCOUNTED THESE PAYMENTS AS REFERRAL FEES AND TDS I S ALSO EFFECTED ON PAYMENTS MADE TO THE PARTIES UNDER SECTIONS 194H AND 194J OF THE I. T. ACT. THE MOU SIGNED BY THE APPELLANT IS SELF SERVING DOCUMENT IN ORDER TO ESCAPE FROM THE RULES OF THE MEDICAL COUNCIL OF INDIA AND HENCE, THE MOU IS REJE CTED. THESE EXPENSES ARE CLEARLY NOT ALLOWABLE AS ALLOWABLE EXPENDITURE AS THE PAYME NTS MADE ARE AGAINST PUBLIC POLICY AND RULES FRAMED BY MEDICAL AUTHORITY. HENCE , I CONFIRM THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. THESE GROUNDS OF APP EAL ARE REJECTED. 4. WE NEXT ADVERT TO THE BASIC RELEVANT FACTS. THI S ASSESSEE IS A COMPANY ENGAGED IN RETAIL TRADING OF OPTHALMIC LENS ES, FRAMES, SUNGLASSES AND MEDICINES. IT FILED ITS RETURN ON 28.11.2014 DECLAR ING LOSS OF RS.10,38,09,810 UNDER NORMAL PROVISIONS AND BOOK PROFIT AS NIL. THE ASSE SSING OFFICER TOOK UP SCRUTINY. HE NOTICED THAT THE ASSESSEE HAD CLAIMED THE IMPUGN ED AMOUNT OF RS.13.80 CRORES AS REFERRAL FEES TO THE DOCTORS. HE ISSUED SHOW CA USE NOTICE PROPOSING TO DISALLOW THE SAME. THE ASSESSING AUTHORITY INTER ALIA OBSERVED IN ASSESSMENT ORDER DT.13.12.2016 THAT EVEN ALTHOUGH THE ASSESSEE HAD C LAIMED TO HAVE MADE PAYMENTS TOWARDS RENT, IT HAD NOT PLACED ON RECORD THE DETAI LS OF THE OWNER(S) QUA THE RENT PAID FOR USAGE OF THE PREMISES BASED ON THE MOU SIGNED BETWEEN ITSELF AND DOCTORS OR INSTITUTIONS, CONTROLLED BY DOCTORS. AND THAT THE ASSESSEE HAD FURTHER DEDUCTED 14 ITA NO.708/HYD/2019 TDS(ES) UNDER SECTION 194J AND 194H IN THE NATURE O F COMMISSION / BROKERAGE AND THE PROFESSIONAL SERVICES U/S.194-I OF THE ACT. TH E ASSESSING OFFICER WAS OF THE VIEW THEREFORE THAT THE IMPUGNED REFERRAL FEES DID NOT I NVOLVE ANY RENTAL COMPONENT THEREIN SO AS TO BE ACCEPTED AS BUSINESS EXPENDITUR E INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF THE BUSINESS. 5. THE ASSESSING OFFICER NEXT CAME TO THE ASSE SSEE'S RATE OF PAYMENT TO THE DOCTORS @ 24.5% OF THE TOTAL EXPENDITURE. H E OBSERVED THAT THE SAID HIGH RATE OF PAYMENT MAY BE DEFINITELY AFFECTING ITS PATIENT S INTEREST IN BUSINESS AND THAT THE ASSESSEE'S REVENUE SHARING AGREEMENT WITH EITHER TH E DOCTORS OR THEIR RELATIVES COULD NOT BE HELD AS PERMISSIBLE. THE ASSESSING OFFICER LASTLY QUOTED CIT VS. KAP SCAN & DIAGNOSTIC CENTRE (2012) 344 ITR 476 (P&H) DISA LLOWING COMMISSION PAID TO PRIVATE DOCTORS FOR REFERRING PATIENTS TO THE SAID DIAGNOSTIC CENTRE. ALL THIS REASONING LED TO THE IMPUGNED REFERRAL FEES DISALLOWANCE MAD E IN THE COURSE OF ASSESSMENT AS UPHELD IN THE CIT(APPEALS) LOWER APPELLATE DISCUSSI ON EXTRACTED IN THE PRECEDING PARAGRAPHS. LEARNED AUTHORIZED REPRESENTATIVE VEHEMENTLY CONT ENDED DURING THE COURSE OF HEARING THAT BOTH THE LOWER AUTHORITI ES HAS ERRED IN LAW AND FACTS AND DISALLOWING THE IMPUGNED REFERRAL FEES PAYMENT OF R S.13.80 CRORES. HE TOOK US TO THE ASSESSEE'S MOU (PAGES 1 TO 9 IN PAPER BOOK) A ND SOUGHT TO HIGHLIGHT THE PURPOSE TO UTILIZE THE CONCERNED EYE CLINICS SPECIFIED PRE MISES MEASURING ABOUT 140 SQ. FT. 15 ITA NO.708/HYD/2019 BEING MADE AVAILABLE TO THE ASSESSEE FOR CONDUCTING ITS BUSINESS. AND THAT THE ASSESSEE HAD TO MAKE ALL ARRANGEMENTS OF FURNITURES AND FIXTURES IN THE SAID PREMISES TO MAKE ITS BUSINESS WORTHABLE AFTER INVESTING ITS CAPITAL THEREIN. CLAUSE 3 CASE 3 IN THE SAID AGREEMENT WAS ALSO REFERRED THAT THE ASSES SEE WAS SUPPOSED TO SHARE A FIXED PERCENTAGE OF ITS (REVENUE EXCLUDING SALES TAX AND SUR CHARGE) ON MONTHLY BASIS. BOTH THE SAID PARTIES ARE ALSO STATED TO HAVE MADE IT CLEAR IN THE AGREEMENT THAT THE TERM REVENUE SHALL BE TOTAL OF VALUE OF THE ORDER DELIVERED IN THE CURRENT CALENDAR MONTH, WHICH WAS TO BE PAID @ 30% IN FAVOUR OF THE SPECIFIED CLINIC / OPHTHALMOLOGIST. 6. MR. VOHRA NEXT ARGUED THAT THE ASSESSEE'S BUSINE SS IS A HIGHLY COMPETITIVE ONE WHEREIN IT HAS TO AGREE TO SHARE IT S REVENUE OR REFERRAL FEES SINCE A MAJOR CHUNK OF ITS CUSTOMERS COME FROM THE HOSPITAL /FIRST PARTY ONLY. AND THE EYE SPECIALIST(S) COULD PRESCRIBE ANY NUMBER OF LENSE(S ) OR TREATMENT TO THE PATIENTS CONCERNED WHEREIN THE LATTER WOULD BE AT LIBERTY TO GO TO ANY EYE CARE SHOP SITUATED INSIDE THE CLINIC OR OUTSIDE IN OPEN MARKET. LEARN ED COUNSEL STRONGLY EMPHASIZES THAT THE ASSESSEE IS CARRYING A HIGHLY COMPETITIVE BUSINESS. AND THAT IT HAS BEEN CONFERRED LOCATIONAL ADVANTAGE(S) SINCE ITS SHOP(S) ARE SITUATED IN EYE CLINIC(S) CONCERNED WITHOUT CHARGING ANY RENT OR OTHER SUMS. COMING TO REVENUE SHARE, LEARNED COUNSEL STATED THAT IT IS A NEW MODEL OF BU SINESS WHICH IS NOWHERE REGULATED BY THE MEDICAL COUNCIL OF INDIAS GUIDELINES. HE FU RTHER SUBMITTED THAT THE 16 ITA NO.708/HYD/2019 ASSESSING OFFICER HIMSELF HAS ACCEPTED ASSESSEE'S I DENTICAL CLAIMS IN ALL EARLIER YEARS. HE LASTLY TOOK US TO HONBLE RAJASTHAN HIGH COURT D ECISION IN DR. ANIL GUPTA VS. ACIT (ITA NO.485 OF 2008) THAT MEDICAL COUNCILS CI RCULARS DOES NOT BIND A HOSPITAL. MR. VOHRA LASTLY TOOK US TO SECTION 37 OF THE ACT AS WELL AS EXPLANATION THERETO THAT THE ASSESSEES REFERRAL FE ES PAYMENT IS NEITHER AN OFFENCE NOR PROHIBITED BY ANY LAW WHATSOEVER AND THEREFORE ALLO WABLE AS PER THE PROVISIONS OF THE ACT. 7. LEARNED CIT-DR HAS STRONGLY SUPPORTED THE CIT(APPEALS)S DETAILED FINDING IN HER LOWER APPELLATE DECISION EXTRACTED IN THE PR ECEDING PARAGRAPHS. 8. WE HAVE HEARD BOTH THE PARTIES. CASE F ILE PERUSED. THE SOLE ISSUE THAT ARISES FOR OUR APT ADJUDICATION IN THE INSTANT CASE IS THA T OF ALLOWABILITY OF ASSESSEE'S REFERRAL FEES OF RS.13,80,84,400 PAID TO VARIOUS EYE CLINICS /EYE SPECIALISTS IN THEIR BUSINESS PREMISES IN LIEU OF RENT AND OTHER ADVANTAGES (SUPR A). 9. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS NOT P AID ANY RENT OR MAINTENANCE CHARGES ETC TO ITS LAND OWNER(S) TO EYE HOSPITAL(S) AND CLINIC AND OPHTHALMOLOGIST(S) AS THE CASE MAY BE. IT HAS RATHER CHOSEN TO SHARE ITS REVENUE AT THE AGREED PERCENTAGE (SUPRA) IN LIEU OF THE EXPLOITING BUSINESS LOCATIO N ADVANTAGE I.E., THE SAID PAYEES PREMISES IN RETURN. 17 ITA NO.708/HYD/2019 10. THE VEXED QUESTION THEREFORE THAT ARISES FOR OUR ADJUDICATION IS WHETHER THE SAME COULD BE TAKEN AS AGAINST THE PUBLIC POLICY AS PER THE CBDTS CIRCULAR NO.772 DT.23.12.1998 MAKING OR NOT. THE SAID CIRCULAR, IS SUED BY CBDT CITING PURPOSE OF EXPLANATION TO SECTION 37 OF THE ACT INSERTED BY TH E FINANCE ACT (NO.2) AT 1998 WITH RETROSPECTIVE EFFECT FROM 1.4.1962, MADE IT CLEAR THAT AN ASSESSEE WOULD NOT BE ENTITLED TO DEDUCTION OF PAYMENT MADE IN CONTRAVENT ION OF LAW OR PAYMENTS WHICH ARE OPPOSED TO PUBLIC POLICY; BEING IN THE NATURE O F UNLAWFUL CONSIDERATION, WHICH ALSO COULD NOT EQUALLY BE RECOGNIZED. HONBLE PUNJ AB & HARYANA HIGH COURT IN CIT VS. KAP SCAN AND DIAGNOSTIC ENTRE (P) LTD. (SUPRA) TOOK NOTE OF THIS VERY CIRCULAR ONLY TO DISALLOW COMMISSION PAYMENTS MADE BY THE SA ID DIAGNOSTIC CENTRE TO PRIVATE DOCTORS IN LIEU OF RADIOLOGICAL REFERRAL CASES. 11. AFTER GIVING OUR THOUGHTFUL CONSIDERA TION TO THE ABOVE NARRATED FACTS, WE ARE OF THE OPINION THAT THE SITUATION IS NO DIFFERE NT IN THE INSTANT CASE AS WELL WHEREIN THE ASSESSEE; A COMPANY ENGAGED IN EYE CAR E BUSINESS HAS SHARED ITS REVENUE WITH THE EYE CLINICS AND OPHTHALMOLOGISTS INTER ALIA IN LIEU OF AVAILING RENT FREE PREMISES WITHOUT MAINTENANCE CHARGES. WE MAKE IT CLEAR THAT THE LEARNED SENIOR COUNSEL HAS HIMSELF ARGUED THAT IT IS AN INS TANCE OF THE EMERGING BUSINESS MODEL ONLY. WE OBSERVE IN THESE FACTS THAT NO BUSI NESS MODEL COULD BE TAKEN ALLOWABLE OF IT SINCE VIOLATE PUBLIC POLICY AS PER THE ABOVE STATED CBDT CIRCULAR. WE 18 ITA NO.708/HYD/2019 ALSO OBSERVED DURING THE HEARING THAT THE LEARNED S ENIOR COUNSEL HAS FILED PAPER BOOK RUNNING INTO 193 PAGES CONTAINING VARIOUS CASE LAW(S), HE HIMSELF WAS FAIR ENOUGH THAT NONE OF THE SAID DECISIONS WOULD APPLY HEREIN SINCE THEY DO NOT INVOLVE ANY SUCH BUSINESS MODEL OF REVENUE SHARING. ALL TH E SAID DECISIONS ARE DISTINGUISHABLE ON THE FACTS THEREFORE AS PER THE A SSESSEE'S STAND. THESE FACTS AND CIRCUMSTANCES MAKE IT APPARENT THAT THE INTEREST OF GENERAL PUBLIC PATIENTS IS VERY MUCH COMPROMISED BY THE ASSESSEES REVENUES SHARIN G AGREEMENT. WE ACCORDINGLY UPHOLD THE LOWER AUTHORITIES ACTION TRE ATING THE ASSESSEE'S REFERRAL FEES AS COMMISSION PAYMENT NOT ALLOWABLE IN PRINCIPLE. 12. NEXT CASE YET AN ANOTHER EQUALLY SIGNIFI CANT ASPECT OF QUANTIFICATION OF IMPUGNED DISALLOWANCE. WE FIND THAT THE ASSESSEE' S IMPUGNED REFERRAL FEES INVOLVES RENTAL PAYMENT WITHOUT BEING ANY MAINTENAN CE CHARGES ETC. IT HAS FURTHER COME ON RECORD THAT NEITHER THE ASSESSEE ITSELF HAS PLACED ON RECORD THE CORRESPONDING RENTS MARKET RATE NOR THE LOWER AUTH ORITIES HAVE MADE ANY SUCH ATTEMPT. FACED THIS SITUATION, WE DEEM IT APPROPRIA TE THAT A LUMP SUM DISALLOWANCE OF 1/3 RD OF THE ASSESSEE'S IMPUGNED CLAIM OF RS. 13,80,84,000/- (INCLUDING THE RENT AND OTHER MISCELLANEOUS CHARGES ON ESTIMATION BASIS ) WOULD BE JUST AND PROPER IN THE GIVEN FACTS AND CIRCUMSTANCES. THE ASSESSEE GE TS RELIEF TO THE EXTENT OF 2/3 RD OF 19 ITA NO.708/HYD/2019 THE IMPUGNED SERVICES IN OTHER WORDS. NECESSARY CO MPUTATION SHALL FOLLOW AS PER LAW. 13. COMING TO ASSESSEE'S LAST ARGUMENT THAT THE VERY NATURE OF PAYMENT STANDS ACCEPTED IN EARLIER YEAR (SUPRA), WE QUOTE THE HONO URABLE APEX COURTS LANDMARK DECISION IN RADHASOAMI SATSANG VS. CIT (1992) 193 I TR 321 (SC) HOLDS THAT THE PRINCIPLE OF RES JUDICATA IS NOT APPLICABLE IN INCO ME TAX PROCEEDINGS. THE ASSESSEE'S CORRESPONDING ARGUMENT STANDS DECLINED THEREFORE. NO OTHER ARGUMENT HAS BEEN RAISED BEFORE US. 14. THE ASSESSEE'S APPEAL IS PARTLY ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH APRIL, 2021. SD/- SD/- (LAXMI PRASAD SAHU) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DT. 08.04.2021. * REDDY GP 20 ITA NO.708/HYD/2019 COPY TO : 1. M/S. EYEGEAR OPTICS INDIA PVT. LTD., 8-2-277/A/9 , ROAD NO.2, SOUDAGARS SILVER BREEZE, BANJARA HILLS, HYDERABAD-500 034 2. ACIT, CIRCLE 17(1), HYDERABD. 3. PR. C I T - 5 , HYDERABAD. 4. CIT(APPEALS) - 7, HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE. BY ORDER SR. PVT. SECRETARY, ITAT, HYDE RABAD.