MAPE SECURITIES P. LTD, MUMBAI V. JCIT OSD 4(3), MUMBAI

ITA 7401/MUM/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1418 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 27-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Assessee Lawyers: SIDDHARTH KUMAR SHAH
• Keywords: Opportunity of being heard; Period of limitation; Wholly owned subsidiary; Commercial expediency; Time period of passing order; Condonation of delay
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI R.C.SHARMA (AM) AND SHRI RAM LAL NEGI (JM ) ITA NO. 7401/MUM/2013 ASSESSMENT YEAR: 2009-10 M/S. MAPE SECURITIES PVT. LTD. 13/14, 1 ST FLOOR, NIRLON HOUSE, ANNIE BESANT ROAD, WORLI, MUMBAI- 400 030. PAN: AAECM7039E VS. THE J CIT, OSD, 4(3 ), ROOM NO. 649, 4 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI- 400 020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. SIDDHARTH KUMAR SHAH RESPONDENT BY : SHRI. SUMAN KUMAR DATE OF HEARING: 0 5/12/2016 DATE OF PRONOUNCEMENT: 14/12/20 16 O R D E R PER RAM LAL NEGI, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST ORDER DATED 29/05/2012 PASSED BY THE LD. CIT(APPEALS)-8, MUMBAI , FOR THE ASST. YEAR 2009-10, WHEREBY THE LD. CIT(A) DISMISSED THE APPEA L FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER DATED 24/11/2011 PASSED U/ S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. BRIEF FACTS WHICH REQUIRE NECESSARY MENTION FOR THE PURPOSE OF DECIDING THE ISSUES INVOLVED IN THIS CASE ARE THAT THE ASSES SEE COMPANY ENGAGED IN THE BUSINESS OF BROKERAGE IN STOCK AND SHARES, FILED IT S RETURN OF INCOME DECLARING THE TOTAL LOSS OF RS. 1,26,79,145/-. DURING ASSESSM ENT PROCEEDINGS THE A.O NOTICED THAT THE ASSESSEE HAD WRITTEN OFF AN AMOUNT OF RS. 1,17,65,000/-, 2 ITA NO. 7401/MUM/2013 ASSESSMENT YEAR: 2009-10 ADVANCED TO ITS SUBSIDIARY COMPANY, AND CLAIMED THE SAME AS REVENUE EXPENSES. REJECTING THE PLEA OF THE ASSESSEE THAT I NTEREST FREE LOAN GIVEN TO SUBSIDIARY COMPANY TO MEET ITS WORKING CAPITAL REQU IREMENT AS A MEASURE TO COMMERCIAL EXPEDIENCY SHOULD BE ALLOWED AS EXPENSES , AO ADDED BACK THE SAID AMOUNT TO THE INCOME OF THE ASSESSEE. SIMILARLY, TH E ASSESSEE HAD PAID RS. 9,39,695/- TOWARDS TRANSACTION CHARGES WITHOUT DEDU CTING TAX AT SOURCE U/S 194J. THE AO ADDED BACK THE SAID AMOUNT TO THE INCO ME OF THE ASSESSEE DISALLOWING THE DEDUCTION CLAIMED U/S 40(A)(IA) OF THE ACT AND COMPUTED THE TOTAL INCOME OF THE ASSESSEE AT RS. 25550/-. THE AS SESSEE CHALLENGED BOTH THE ISSUES BEFORE THE LD. CIT(A). THE LD. CIT(A) DECIDE D ONLY SECOND ISSUE IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE FOLLOWING T HE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF KOTAK SECURITIES LTD. (ITA NO. 3111 OF 2009) DATED 21/10/2011 IN WHICH IT HAS BEEN HELD THAT THE TRANSACTION CHARGES PAID BY THE ASSESSEE TO THE STOCK EXCHANGE CONSTITUTE FEES FOR TECHNICAL SERVICES COVERED U/S 194J OF THE ACT. 3. THE ASSESSEE FILED AN APPLICATION BEFORE THE LD . CIT(A) TO ADJUDICATE GROUND NO. ONE OF THE APPEAL. SINCE, NO ACTION WAS TAKEN ON THE SAID APPLICATION DESPITE REMINDERS SENT TO THE LD. CIT(A ), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER PASSE D BY THE LD. CIT(A) ON THE FOLLOWING EFFECTIVE GROUNDS:- 1. THE LEARNED CIT(APPEAL) HAS ERRED IN LAW AND F ACT IN AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE APPELLANT. THE APPELLANT PRAYS THAT IT SHOULD BE GIVEN PROPER OPPO RTUNITY OF BEING HEARD. 2. THE LEARNED CIT(APPEAL) HAS ERRED IN LAW AND FAC T IN NOT ADJUDICATING THE GROUND OF APPEAL DISALLOWANCE OF LOAN AMOUNTING TO RS. 1,17,65,000/- WRITTEN OFF BY THE A PPELLANT 3 ITA NO. 7401/MUM/2013 ASSESSMENT YEAR: 2009-10 WHICH WAS GIVEN TO ITS 100% SUBSIDIARY COMPANY AS W ORKING CAPITAL TO CARRY ON ITS BUSINESS. THE APPELLANT PRAYS THAT THE SAID DISALLOWANCE OF L OAN WRITTEN OFF RS. 1,17,65,000/- BE ALLOWED. 3. THE LEARNED CIT(APPEAL) HAS ERRED IN LAW AND FAC T IN UPHOLDING THE DISALLOWANCE OF TRANSACTION CHARGES PAID TO EXC HANGES OF RS. 9,39,695/- U/S 40(A)(IA). THE APPELLANT CANNOT BE C OMPELLED TO DO THE IMPOSSIBLE ACT. 4. THE APPELLANT CRAVES LEAVE TO ADD ADDITIONAL GRO UND OF APPEAL. THE ASSESSEE ERRONEOUSLY TREATED LOSS ON SALE OF SH ARES OF 100% SUBSIDIARY COMPANY AS CAPITAL LOSS INSTEAD OF BUSIN ESS LOSS. 4. THE PRESENT APPEAL HAS BEEN FILED ALONG WITH AN APPLICATION FOR CONDONATION OF DELAY OF 491 DAYS. THE LD COUNSEL SU BMITTED THAT THE DELAY WAS NOT WILFUL BUT HAS HAPPENED DUE TO THE CIRCUMST ANCES BEYOND CONTROL. IN FACT, THE ASSESSEE HAD PREFERRED THE FIRST APPEAL A GAINST ASSESSMENT ORDER RAISING TWO GROUNDS. HOWEVER, THE CIT(A) PASSED THE IMPUGNED ORDER DECIDING ONLY SECOND GROUND OF APPEAL. ACCORDINGLY, THE APPL ICATION WAS FILED ON 27/06/2012, TO RECTIFY THE ERROR AND ADJUDICATE THE FIRST GROUND OF APPEAL ALSO. THEREAFTER, ANOTHER REMINDER DATED 02/08/2012 WAS S ENT BUT OF NO AVAIL. HENCE, THE ASSESSEE PREFERRED THE PRESENT APPEAL AF TER EXPIRY OF LIMITATION PERIOD. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SU BMITTED THAT SINCE THE DELAY WAS NOT INTENTIONAL THE SAME MAY BE CONDONED IN THE INTEREST OF JUSTICE. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND O PPOSED THE APPLICATION. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. SUB-SECTIO N 5 OF SECTION 253 OF THE INCOME TAX ACT PROVIDES THAT THE TRIBUNAL MAY ADMIT APPEAL OR PERMIT FILING OF MEMORANDUM OF CROSS OBJECTION OF RESPONDENT AFTER E XPIRY OF RELEVANT PERIOD OF LIMITATION REFERRED TO IN SUB-SECTION 3 AND 4 SECTI ON 253, IF THE TRIBUNAL IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT P RESENTING IT WITHIN THAT 4 ITA NO. 7401/MUM/2013 ASSESSMENT YEAR: 2009-10 PERIOD. EXPRESSION SUFFICIENT CAUSE IN THIS SECTI ON HAS ALSO BEEN USED IN SECTION 5 OF INDIAN LIMITATION ACT, 1961. THIS EXPR ESSION HAS COME FOR CONSIDERATION BEFORE THE HONBLE HIGH COURTS AS WEL L AS BEFORE THE HONBLE SUPREME COURT, AND THE HONBLE COURTS ARE UNANIMOUS IN OBSERVING THAT WHENEVER SUCH ISSUE COMES FOR CONSIDERATION BEFORE ADJUDICATING AUTHORITY, THEN SUFFICIENT CAUSE SHOULD BE CONSIDERED WITH J USTICE ORIENTED APPROACH. WE DEEM IT APPROPRIATE TO MAKE REFERENCE TO THE DEC ISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR LAND ACQUISITION VS. MST. KATIJI & OTHER S, 1987 AIR 1353. THE RELEVANT PART OF THE JUDGMENT READS AS UNDER: 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITO RIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTI CE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THA T CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY , EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL C OMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGH T IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MA LA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 6. IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE AFORESAID CASE, WE ALLOWED THE APPLICATION OF THE A SSESSEE FOR CONDONATION OF DELAY AND PERMITTED THE LD. COUNSEL TO ARGUE THE CA SE ON MERITS HOLDING THAT 5 ITA NO. 7401/MUM/2013 ASSESSMENT YEAR: 2009-10 THE APPELLANT HAD BEEN PREVENTED BY THE SUFFICIENT CAUSE FROM FILING THE PRESENT APPEAL WITHIN THE LIMITATION PERIOD. 7. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS NOT GIVEN PROPER OPPORTUNITY OF BEING HEARD HENCE THE ORDER IS BAD IN LAW. SECOND GROUND PERTAINS TO DISALLOWANCE OF LOAN GIVEN BY THE ASSESSEE TO ITS SUBSIDIARY AS WORKING CAPITAL TO CA RRY ON ITS BUSINESS. THE LD. COUNSEL SUBMITTED THAT SINCE, THE LD. CIT(A) HAS NO T ADJUDICATED THE ISSUE RELATING TO THE DISALLOWANCE OF WRITTEN OFF OF THE LOAN IN QUESTION THE SAID ISSUE MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR A DJUDICATION. SO FAR AS GROUND NO 3 OF THE APPEAL IS CONCERNED, THE LD COUNSEL POI NTED OUT THAT THE MUMBAI BENCH OF THE ITAT HAS DECIDED THE IDENTICAL ISSUE I N FAVOUR OF THE ASSESSEE IN ASSESSEES OWN CASE ITA NO. 842/M/2012 FOR THE A.Y. 2008-09 VIDE ORDER DATED 24.11.2014. THEREFORE, THE FINDINGS OF THE LD. CIT( A) ON THE SAID ISSUE ARE LIABLE TO BE SET ASIDE. THE LD. COUNSEL FURTHER SUBMITTED THAT GROUND NO 4 HAS BEEN TAKEN AS ADDITIONAL GROUND TO TREAT LOSS ON SHARES OF 100% SUBSIDIARY COMPANY AS BUSINESS LOSS AS THE SAME HAS BEEN ERRONEOUSLY T REATED AS CAPITAL LOSS. 8. AFTER HEARING THE LD. DR, WE PERUSED THE MATERIA L PLACED BEFORE US. THE FIRST GROUND OF APPEAL IS GENERAL IN NATURE AND WE DO NOT CONSIDER IT NECESSARY TO ADJUDICATE THIS GROUND INDEPENDENTLY. SO FAR AS THE SECOND GROUND IS CONCERNED, WE NOTICED THAT THE LD. CIT(A) HAS NOT G IVEN ANY FINDING ON THE ISSUE RELATING TO DISALLOWANCE OF WRITTEN OFF OF T HE LOAN IN QUESTION. HENCE, IN OUR CONSIDERED OPINION THE MATTER IS REQUIRED TO BE LOOKED INTO BY THE FIRST APPELLATE AUTHORITY. WE, THEREFORE, RESTORE THIS IS SUE TO THE FILE OF LD. CIT(A) FOR ADJUDICATING THE SAME AFTER GIVING AN OPPORTUNITY O F BEING HEARD TO THE ASSESSEE. 9. THE THIRD GROUND PERTAINS TO DISALLOWANCE OF TRA NSACTION CHARGES PAID TO STOCK EXCHANGES OF RS. 9,39,695/-. WE NOTICE THAT T HE CO-ORDINATE BENCH HAS 6 ITA NO. 7401/MUM/2013 ASSESSMENT YEAR: 2009-10 DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESS EE IN ASSESSEES OWN CASE FOR THE A.Y. 2008-09 HOLDING AS UNDER:- WE HAVE HEARD THE RIVAL CONTENTION AND ALSO PERUSE D THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDER. THE ASSESSEE H AS PAID TRANSACTION CHARGES TO THE STOCK EXCHANGE ON WHICH TDS WAS NOT DEDUCTED. SUCH ANON DEDUCTION OF TDS WAS BASED ON T HE FACT AND BELIEF THAT IN THE EARLIER YEARS ALSO NO TDS WAS DE DUCTED AND DEPARTMENT HAS ACCEPTED THIS POSITION. THIS BONA FI DE BELIEF THAT NO TDS IS REQUIRED TO BE DEDUCTED WAS ALSO BASED ON DE CISIONS OF ITAT MUMBAI BENCHES, SPECIALLY IN THE CASE OF KOTAK SECU RITIES LTD. EVEN THE ASSESSING OFFICER HAS ACCEPTED THIS FACT, BUT H AS MADE THE DISALLOWANCE U/S 40(A)(IA) ON THE GROUND THAT THE S AID DECISION OF THE TRIBUNAL IS SUBJUDICE BEFORE THE HONBLE HIGH C OURT. THIS DECISION OF THE TRIBUNAL WAS REVERSED ONLY ON 21.10 .2011, BY THE HONBLE HIGH COURT, WHEREIN IT WAS HELD THAT TRANSA CTION CHARGES ARE FEES FOR TECHNICAL SERVICES, FOR WHICH TDS WA S REQUIRED TO BE DEDUCTED U/S 194J. THE ASSESSEES CASE BEFORE US IS THAT, NO DISALLOWANCE SHOULD BE MADE AND ASSESSEE WAS UNDER A BONA FIDE BELIEF THAT NO TAX WAS DEDUCTIBLE. WE FIND THAT SUC H A BONA FIDE BELIEF FOR NOT DEDUCTING THE TAX IN THE ASSESSMENT YEAR IN QUESTION UNDER SUCH CIRCUMSTANCES HAS BEEN ACCEPTED BY THE H ONBLE HIGH COURT IN THE CASE OF KOTAK SECURITIES LTD.(SUPRA) I TSELF AND DISALLOWANCE MADE U/S 40(A)(IA) WAS DELETED. THE RE LEVANT OBSERVATION AND THE FINDING OF THE HONBLE HIGH COU RT ON THIS ASPECT HAS GIVEN IN PARA 32 OF THE ORDER, WHICH IS REPRODU CED HEREUNDER:- HOWEVER, SINCE BOTH THE REVENUE AND THE ASSESSEE WERE UNDER THE BONA FIDE BELIEF FOR NEARLY A DECADE THAT TAX WAS N OT DEDUCTIBLE AT SOURCE ON PAYMENT OF TRANSACTION CHARGES, NO FAULT CAN BE FOUND WITH THE ASSESSEE IN NOT DEDUCTING THE TAX AT SOURC E IN THE ASSESSMENT YEAR IN QUESTION CONSEQUENTLY DISALLOWAN CE MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) OF TH E ACT IN RESPECT OF THE TRANSACTION CHARGES CANNOT BE SUSTAINED. WE MAD E IT CLEAR THAT WE HAVE ARRIVED AT THE ABOVE CONCLUSION IN THE PECU LIAR FACTS OF THE PRESENT CASE, WHERE BOTH THE REVENUE AND THE ASSESS EE RIGHT FROM THE INSERTION OF SECTION 194J IN THE YEAR1995 TILL 2005 PROCEEDED ON 7 ITA NO. 7401/MUM/2013 ASSESSMENT YEAR: 2009-10 THE FOOTING THAT THE ASSESSEE IS NOT LIABLE TO DEDU CT TAX AT SOURCE AND IN FACT IMMEDIATELY AFTER THE ASSESSMENT YEAR IN QU ESTION I.E. FROM A.Y. 2006-07THE ASSESSEE HAS BEEN DEDUCTING TAX AT SOURCE WHILE CREDITING THE TRANSACTION CHARGES TO THE ACCOUNT OF THE STOCK EXCHANGE. THUS ON THE FACTS OF THE PRESENT CASE ALSO, WE HOLD THAT NO DISALLOWANCE U/S 40(A)(IA) SHOULD BE MADE IN THE PR ESENT ASSESSMENT YEAR AS THE ASSESSEE WAS UNDER A BONA FI DE BELIEF THAT NO TAX WAS DEDUCTIBLE, BECAUSE IN THE EARLIER YEARS BOTH THE REVENUE AND THE ASSESSEE HAD ACCEPTED THE POSITION THAT NO TAX WAS DEDUCTIBLE ON THE TRANSACTION CHARGES. IT HAS BEEN STATED BEFORE US BY THE LEARNED COUNSEL THAT ASSESSEE IS NOW DEDUCTI NG TAX U/S 194J ON TRANSACTION CHARGES IN THE WAKE OF THE DECISION OF THE HONBLE HIGH COURT. ACCORDINGLY, WE HOLD THAT NO DISALLOWAN CE SHOULD BE MADE U/S 40(A)(IA) IN THIS YEAR. THUS, ASSESSEES G ROUND IS ALLOWED. 10. SINCE, THE FACTS AND THE ISSUE INVOLVED IN THE PRESENT CASE ARE IDENTICAL TO THE ASSESSEES OWN CASE ITA NO. 842/M/2012 FOR THE A.Y. 2008-09 (SUPRA) AND THE COORDINATE BENCH HAS ALREADY DECIDED THE IDENTI CAL ISSUE IN FAVOUR OF THE ASSESSEE ON THE GROUND THAT NON DEDUCTION OF TAX AT SOURCE WAS BASED ON THE FACT AND BELIEF THAT IN THE EARLIER YEARS ALSO NO T AX WAS DEDUCTED AND THE DEPARTMENT HAD ACCEPTED THE SAME. THIS BONA FIDE BELIEF WAS ALSO BASED ON THE DECISION OF ITAT MUMBAI BENCH WHICH WAS REVERSED ON LY ON 21.10.2011 BY THE HONBLE JURISDICTIONAL HIGH COURT. THE HONBLE HIGH COURT HAS ACCEPTED THE PLEA OF BONA FIDES OF THE ASSESSEE IN NON DEDUCTION OF TAX IN THE CASE OF KOTAK SECURITIES LTD . (SUPRA) HOLDING THAT SINCE BOTH THE PARTIES WERE UNDER THE BONA FIDE BELIEF, NO FAULT CAN BE FOUND WITH THE ASSESSEE IN NOT DEDUCTING TAX AT SOURCE DURING THE ASSESSMENT YEAR IN QUESTION. SIN CE, THE PRESENT APPEAL PERTAINS TO THE ASSESSMENT YEAR 2009-10, AND THE HO NBLE HIGH COURT REVERSED THE FINDINGS OF THE COORDINATE BENCH VIDE ORDER DAT ED 21.10.2011, WE RESPECTFULLY FOLLOW THE RATIO LAID DOWN BY THE HON BLE HIGH COURT IN KOTAK 8 ITA NO. 7401/MUM/2013 ASSESSMENT YEAR: 2009-10 SECURITIES LTD . AND THE DECISION RENDERED BY THE COORDINATE BENCH IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2008-09 AND SET ASIDE THE FINDINGS OF THE LD. CIT(A) ON THIS ISSUE AND DECIDE THIS GRO UND OF APPEAL IN FAVOUR OF THE ASSESSEE. 11. THE ASSESSEE HAS TAKEN THE FOURTH GROUND FOR TH E FIRST TIME BEFORE THE TRIBUNAL. THE ASSESSEE HAS RAISED THIS ISSUE TO TRE AT THE LOSS ON SALE OF SHARES OF SUBSIDIARY COMPANY AS BUSINESS LOSS ON THE GROUN D THAT THE SAME HAS ERRONEOUSLY BEEN TREATED AS CAPITAL LOSS BY THE ASS ESSEE. ADMITTEDLY, THE AO HAS PASSED THE ASSESSMENT ORDER ON THE BASIS OF THE FACTS REPRESENTED BY THE ASSESSEE AND THE ASSESSEE DID NOT RAISE THIS ISSUE EVEN BEFORE THE CIT(A) DURING APPEAL PROCEEDINGS. UNDER THESE CIRCUMSTANCES, THE ASSESSEE CANNOT RAISE THIS ISSUE BEFORE THE TRIBUNAL. IN OUR CONSIDERED OPINIO N SINCE THIS IS NOT A LEGAL GROUND THE SAME CANNOT BE ADMITTED AS AN ADDITIONAL GROUND AT THIS STAGE. HENCE, WE DISMISS THIS GROUND OF APPEAL. 12. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE FOR ASST. YEAR 2009-10 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COUR T 14 TH DECEMBER, 2016. SD/- SD/- ( R.C.SHARMA ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 14/12/2016 9 ITA NO. 7401/MUM/2013 ASSESSMENT YEAR: 2009-10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA