DCIT, Bellary V. M/s Mukund Ltd., Ginigera

ITA 860/BANG/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63830 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 06-12-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 03-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BIJOY KUMAR PANDA
• Assessee Lawyers: CHYTANYA K K
• Keywords: Advance ruling
• Section: 143(3); 133A; 28

Judgement Text

PAGE 1 OF 20 ITA NOS.859 TO 862/BAN G/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI N BARATHVAJA SANKAR, VICE PRESIDENT AND SHRI GEORGE GEORGE K, J.M ITA NOS. 859 & 860/BANG/2011 (ASSESSMENT YEARS 2008-09 & 2009-2010) THE DEPUTY COMMISSIONER OF INCOME TAX, TDS CIRCLE, BELLARY. VS M/S MUKUND LTD., HOSPET ROAD, GINIGRA, KOPPAL DIST. TAN : BLRMO 3569 G (APPELLANT) (RESPONDENT) ITA NOS.861 & 862/BANG/2011 (ASST. YEARS 2008-09 & 2009-2010) THE DEPUTY COMMISSIONER OF INCOME TAX, TDS CIRCLE, BELLARY. VS M/S KALYANI STEELS LTD., HOSPET ROAD, GINIGRA, KOPPAL DIST. TAN : BLRKO 2325 B (APPELLANT) (RESPONDENT) DATE OF HEARING : 06.12.2012 DATE OF PRONOUNCEMENT : 18.12.2012 APPELLANT BY : SHRI BIJOY KUMAR PANDA, ADDL . CIT RESPONDENT BY : SHRI CHYTANYA K. K., ADVOCATE ORD ER PER BENCH : THESE FOUR APPEALS FILED BY THE REVENUE ARE DIRECT ED AGAINST THE SEPARATE ORDERS OF THE LEARNED CIT (A), HUBLI, ALL DATED 27.7.2011 IN THE CASES OF (I) M/S. MUKUND LIMITED AND (II) M/S. KALYA NI STEEL LIMITED, GINIGRA. THE RELEVANT ASSESSMENT YEARS ARE 2008-09 AND 2009-1 0. PAGE 2 OF 20 ITA NOS.859 TO 862/BAN G/2011 2 ITA NOS.859 & 860/B/11 IN THE CASE OF M/S. MUKUND LIMITED & ITA NOS.861 & 862/B/11 IN THE CASE OF M/S.KALYANI STE EL LIMITED 2. THE REVENUE HAS, IN ITS FOUR APPEALS, RAISED ID ENTICAL ISSUES FOR THE AYS 2008-09 AND 2009-10 WHICH ARE LISTED AS UNDER: (1) WHETHER, ON THE FACTS OF THE CASE AND IN LAW, THE C IT (A) WAS RIGHT IN HOLDING THAT THE PAYMENTS MADE BY THE ASSESS EE TO ANOTHER INCORPORATED COMPANY M/S. HOSPET STEELS LI MITED TOWARDS SERVICES AVAILED FOR OPERATING AND MAINTAIN ING AN INTEGRATED STEEL PLANT, ARE IN THE NATURE OF REIMB URSEMENT? & (2) WHETHER, ON THE FACTS OF THE CASE AND IN LAW, THE CIT (A) WAS RIGHT IN HOLDING THAT THE SAID PAYMENTS MADE TOWARDS SERVICES AVAILED FOR OPERATING AND MAINTAINING AN INTEGRATED STEEL PLANT DO NOT ATTRACT THE PROVISIONS OF S.194J OF THE ACT SINCE THE COMPANY - M/S. HOSPET STEELS LIMITED CHARGED THEIR SERVICES ON COST TO COST BASIS AND NO INCOME WAS ACCRUED TO M/S. HOSPET STEELS LIMITED? 3. AS THE ISSUES RAISED IN THESE APPEALS, BEING ID ENTICAL AND INTER- LINKED, THEY WERE HEARD, CONSIDERED TOGETHER AND DIS POSED OFF, FOR THE SAKE OF CONVENIENCE AND CLARITY, IN THIS COMMON ORDER. 4. FURTHER, AS THE ISSUES RAISED IN THE CASES OF ( I) M/S. MUKUND LIMITED; AND (II) M/S. KALYANI STEELS LIMITED FOR BO TH THE AYS [2008-09 AND 2009-10] ARE IDENTICAL, FOR THE SAKE OF CLARITY AND APPRECIATION OF FACTS, THE ISSUES RAISED IN THE CASE OF M/S. KALYANI STEELS LIM ITED ARE TAKEN UP FOR ADJUDICATION AND THE FINDINGS RECORDED HEREUNDER WI LL HOLD GOOD IN THE CASE OF M/S. MUKUND LIMITED FOR BOTH THE AYS AS WELL. REVERTING BACK, THE ISSUES, IN BRIEF, ARE AS UND ER: PAGE 3 OF 20 ITA NOS.859 TO 862/BAN G/2011 3 5. THE ASSESSEE COMPANY [THE ASSESSEE IN SHORT] E NGAGED IN THE BUSINESS OF STEEL MANUFACTURING. THE ASSESSEE ALO NG WITH M/S. MUKUND LIMITED - ALSO ENGAGED IN THE BUSINESS OF STEEL MAN UFACTURING - HAS ENTERED INTO A STRATEGIC ALLIANCE AGREEMENT [SAA] ON 16.5.1 998 FOR SETTING UP STEEL MAKING FACILITIES. ACCORDING TO SSA, BOTH THE ASSE SSEES HAVE PROMOTED M/S. HOSPET STEELS LIMITED AS A JOINT VENTURE COMPANY FOR THE SMOOTH FUNCTIONING OF ALL THE PLANTS AS ONE COMPOSITE MANU FACTURING UNIT. IN ACCORDANCE WITH THE SAA, THE ASSESSEE HAD INSTALLED IRON MAKING AND STEEL ROLLING FACILITIES AND MUKUND LIMITED HAD INSTALLED STEEL MAKING FACILITIES. THE OTHER ADDITIONAL FACTS WHICH ARE RELEVANT TO TH E PRESENT CASE ARE THAT (I) THE SHARE CAPITAL OF HOSPET STEEL LTD [HSL] WAS HEL D BY THE ASSESSEE AND MUKUND LTD [ML] IN EQUAL PROPORTIO N AND THE INVESTMENT IN THE STEEL MAKING FACILITIES H AS BEEN MADE BY SSA COMPONENTS IN THE RATIOS OF 41.38% AND 58.62%; (II) ACCORDING TO SSA, BOTH THE ASSESSEES [THE ASSESSEE AND MUKUND LIMITED] HAVE AGREED TO REIMBURSE THE HSL TH E EXPENDITURE INCURRED IN THE COURSE OF ADMINISTERING THE PLANT OPERATIONS ON COST TO COST BASIS. THUS, THE EXPENSES WHICH COULD BE INCURRED TOWARDS HOT METAL MAKING AND STEEL ROLLING ACTIVITIES WERE ALLOCATED TO THE ASSESSEE AND THAT OF THE EXPENSES INCURRED ON STEEL MAKING ACTIVITIES WERE ALLOCATED TO ML AND THE COMM ON EXPENSES AND CORPORATE EXPENSES WERE MET FROM THE STRATEGIC ALLIANCE CONSTITUENTS IN ABOVE MENTIONED RATIOS. 5.1. IN THE MEANWHILE, THERE WAS AN ACTION U/S 133 A OF THE ACT IN THE PREMISES OF THE ASSESSEE AND ML FOR BOTH THE AS SESSMENT YEARS UNDER DISPUTE AND AFTER DUE CONSIDERATION OF THE ASSESSEE S EXPLANATION, THE ASSESSING OFFICER HAD PASSED AN ORDER U/S 201 AND 2 01(1A) OF THE ACT, PAGE 4 OF 20 ITA NOS.859 TO 862/BAN G/2011 4 TREATING THE ASSESSEE AS AN ASSESSEE IN DEFAULT A ND, ACCORDINGLY, LEVIED INTEREST U/S 201(1A) OF THE ACT FOR NOT DEDUCTING T AX AT SOURCE U/S 194J OF THE ACT IN RESPECT OF THE REIMBURSEMENTS MADE TO HS L FOR BOTH THE ASSESSMENT YEARS UNDER CONSIDERATION. 6. AGGRIEVED, THE ASSESSEE TOOK UP THE ISSUE BEFOR E THE CIT (A) FOR RELIEF. AFTER DUE CONSIDERATION OF THE SUBMISS ION MADE BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS, THE CIT (A) HAD RECORDED HIS FINDINGS AS UNDER: 10.5. THE PAYMENTS MADE BY KSL AND ML TO HSL IS AT COST WHICH IS APPARENT FROM THE PROFIT AND LOSS ACCOUNT OF HSL AND NOTES TO ACCOUNTS OF ALL TH E COMPANIES FOR VARIOUS YEARS; IT IS ALSO EVIDENT FRO M THE SAA THAT NO SERVICE CHARGES IS PAID OR PAYABLE TO HS L FROM KSL AND ML. THE ASSESSMENT ORDER FOR THE YEAR 2000-01 BY THE THEN ACIT, CIRCLE 1, BELLARY IN THE CA SE OF HSL STATES THAT THE EXPENDITURE INCURRED BY HSL I S REIMBURSED BY KSL AND ML IN THE AGREED RATIO. IN MY OPINION, THE AO IS NOT JUSTIFIED IN REJECTING THE CONTENTION THAT THE PAYMENTS ARE ON COST TO COST BAS IS AND, HENCE, REIMBURSEMENTS. WHILE, HE HIMSELF HAS STATED SO IN THE ASSESSMENT ORDER FOR THE YEAR 2008- 09 U/S 143(3) THAT HSL CHARGES KSL AND ML ON COST TO C OST BASIS AS PER THE SAA, HE CANNOT TAKE A DIFFERENT VI EW WHILE ASSESSING THE TDS RETURN OF THE APPELLANT. B ASE(D) ON THE ABOVE, IN MY OPINION, THE PAYMENTS MADE BY KSL AND ML IS IN THE NATURE OF REIMBURSEMENTS. 6.1. AFTER HAVING CONSIDERED THE PAYMENTS AS REIMBU RSEMENTS AND ALSO AFTER DUE EXAMINATION AS TO WHETHER SUCH REIMB URSEMENTS WERE LIABLE PAGE 5 OF 20 ITA NOS.859 TO 862/BAN G/2011 5 FOR TDS U/S 194J OF THE ACT, AS RECORDED IN HIS APP ELLATE ORDER, THE CIT (A) MADE THE FOLLOWING OBSERVATIONS AT PARA 11.11 O F HIS ORDER THUS: 11.11. IN VIEW OF THE ABOVE FACTUAL POSITION, VARIOUS CASE LAWS ON THE MATTER, IN MY CONSIDERED OPINION, T HE PAYMENTS MADE BY KSL AND ML TO HSL FOR VARIOUS EXPENSES INCURRED BY IT ON THEIR BEHALF AND AS PER T HEIR INSTRUCTIONS, WOULD BE A REIMBURSEMENT ONLY AND NOT A FEE FOR TECHNICAL SERVICES AND, HENCE, NOT LIABLE FOR DEDUCTION OF TAX AT SOURCE U/S 194J OF THE INCOME-T AX ACT, 1961. 6.2. WITH REGARD TO THE APPLICABILITY OF BOARDS CI RCULAR NO.715 DATED 8.8.1995 AS RELIED ON BY THE AO, THE CIT (A) H AD, AFTER CAREFUL CONSIDERATION OF THE ASSESSEE CONTENTIONS AS WELL AS THE PERUSAL OF THE SAID CIRCULAR, RECORDED HIS FINDINGS WHICH ARE EXTRACTED AS UNDER: 12.1. I HAVE GONE THROUGH THE SUBMISSIONS OF THE C OUNSEL AND THE AOS ORDER. IN MY CONSIDERED VIEW, ASSESSI NG OFFICERS RELIANCE ON THE CIRCULAR IS OUT OF PLACE IN THE PRESENT CONTEXT. THE CBDT IN THE CIRCULAR NO.715 DA TED ON 3.8.1995 HAS CLARIFIED THAT THE REIMBURSEMENTS C ANNOT BE DEDUCTED OUT OF THE BILL AMOUNT FOR THE PURPOSE OF TDS. IN THE PRESENT CASE, ALL THE PAYMENTS WERE MAD E AS PER THE AGREEMENT ONLY BY, THE KALYANI STEELS LTD. HENCE, FOR SUCH REIMBURSEMENTS, TDS CANNOT BE MADE. 13. IN VIEW OF MY FINDING AS DISCUSSED ABOVE, THE ASSESSEE CANNOT BE CONSIDERED AS AN ASSESSEE IN DEF AULT U/S 201 OF THE INCOME-TAX ACT, 1961 AND CONSEQUENTL Y, LEVYING OF INTEREST U/S 201(1A) DOES NOT ARISE PAGE 6 OF 20 ITA NOS.859 TO 862/BAN G/2011 6 7. AGGRIEVED, THE REVENUE HAS COME UP BEFORE US WI TH THE PRESENT APPEALS. DURING THE COURSE OF HEARING, THE SUBMISS IONS MADE BY THE LEARNED D R ARE SUMMARIZED AS UNDER: - THAT THE ASSESSEE HAD MADE PAYMENTS TO HSL TOWARD S MANAGERIAL AND TECHNICAL SERVICES RENDERED BY WAY OF OPERATING AND MAINTAINING OF AN INTEGRATED STEEL PL ANT; - THAT THE PAYMENTS MADE BY THE ASSESSEE TO HSL WERE IN THE NATURE OF FEES TOWARDS PROFESSIONAL AND TECHNIC AL SERVICES WITHIN THE MEANING OF THE PROVISIONS OF S. 194J; AND THAT THE ASSESSEE HAD FAILED TO DEDUCT TAX AT S OURCE IN RESPECT OF THE SAID PAYMENTS IN ACCORDANCE WITH T HE PROVISIONS OF S. 194 J OF THE ACT; - THAT THE CIT (A) HAD WRONGLY HELD THAT THE PAYMENT S MADE TO HSL WERE IN THE NATURE OF REIMBURSEMENT AND THERE WAS NO ELEMENT OF PROFIT AND, HENCE, NO TDS W AS DEDUCTIBLE FROM SUCH PAYMENTS. HOWEVER, HE HAD FAIL ED TO APPRECIATE THE FACTS WHICH PROVED THAT THE PAYMEN TS MADE WERE NOT MERE REIMBURSEMENT OF EXPENSES, BUT, THE PAYMENTS MADE WERE TOWARDS SERVICES AVAILED FOR OPERATING AND MAINTAINING OF AN INTEGRATED STEEL PL ANT WHICH WAS IN THE NATURE OF TECHNICAL AND MANAGERIAL SERVICE; - THAT HSL, KSL AND THE ASSESSEE WERE INDEPENDENT ENTITIES AND HSL WAS CARRYING ON ITS BUSINESS INDEPENDENTLY AND NOT AN AGENT OF EITHER OF THE ASSE SSEE OR ML; - THAT HSL IS A SERVICE COMPANY AND MANAGE AN INTEG RATED STEEL PLANT FOR KSL AND THE ASSESSEE; AND THAT THE ENTIRE STAFF AND MANPOWER INCLUDING LABOURERS REQUIRED FOR OPERATING AND MAINTAINING THE SAID INTEGRATED STEEL PLANT PAGE 7 OF 20 ITA NOS.859 TO 862/BAN G/2011 7 FOR RENDERING SERVICES TO THE ASSESSEE AND KSL WERE EMPLOYED BY HSL; - THAT THE ASSETS OWNED BY HSL WERE USED FOR THE PU RPOSE OF RENDERING SERVICES TO THE ASSESSEE AND KSL; - THAT HSL CHARGED AMOUNTS AGGREGATING TO RS.20.76 CRORES AND RS.20.11 CRORES [FY 2007-08] AND RS.25.9 1 CRORES AND RS.19.44 CRORES [FOR FY 2008-09] RESPECT IVELY FROM KSL AND THE ASSESSEE TOWARDS SERVICES RENDERED FOR OPERATING AND MANAGING AN INTEGRATED STEEL PLAN T; - THAT THE CIT (A) HAD ERRED IN HOLDING THAT NO TD S WAS REQUIRED AS THERE WAS NO ELEMENT OF PROFIT IN THE PAYMENTS WHICH WERE MADE ON COST TO COST BASIS. AS PROVIDED U/S 194J, TDS HAS TO BE DEDUCTED IRRESPECT IVE OF THE FACT WHETHER THE DEDUCTEE WAS MAKING PROFIT OR NOT; RELIES ON THE CASE LAWS : CIT V. AMERICAN EXPRESS BANK LTD 18 TAXMAN.COM 221 (DELHI) [2012];; TIMKEN INDIA LTD 143 TAXMAN 257 (2005) - AUTHORITY F OR ADVANCE RULINGS, NEW DELHI; & TRANSMISSION CORPORATION OF A.P LTD V. CIT 105 TAXM AN 742 (SC) (1999). 7.1. IN CONCLUSION, IT WAS PLEADED THAT THE ORDERS OF THE CIT (A) REQUIRE TO BE REVERSED AND THOSE OF THE AO BE RESTO RED. 7.2. ON THE OTHER HAND, THE LEARNED AR PRESENT CON TRADICTED THE VERSION OF THE REVENUE. THE SUBMISSIONS MADE BY THE LEARNED AR ARE SUMMED UP AS UNDER: PAGE 8 OF 20 ITA NOS.859 TO 862/BAN G/2011 8 - THAT THE PAYMENT MADE BY THE ASSESSEE TO HSL WAS IN T HE NATURE OF REIMBURSEMENT ON COST TO COST BASIS. FUR THER, NO SERVICE CHARGES HAVE BEEN LEVIED BY HSL IN RESPECT O F THE TRANSACTIONS UNDERTAKEN BY IT AND, THUS, THE SAID PA YMENT DOES NOT CONSTITUTE INCOME IN THE HANDS OF HSL AND, THEREFORE, THE ASSESSEE WAS NOT LIABLE TO DEDUCT TA X AT SOURCE U/S 194J OF THE ACT; - THAT THE ANNUAL REPORT (2007-08) OF HSL [ PARAGRAPH 2 OF ANNEXURE REFERRED TO NOTE NO.7 OF SCHEDULE 8] READS AS UNDER: THE COMPANY IS AN OUTCOME OF THE STRATEGIC ALLIANCE BETWEEN KALYANI GROUP AND MUKUND GROUP AND IS ACTING AS A CONDUCT (SIC) CONDUIT PIPE FOR AND ON BEHALF OF T HE STRATEGIC ALLIANCE CONSTITUENTS AND, HENCE, NO REMUNERATION IS PAYABLE TO IT. THE RESPECTIVE PARTI ES REIMBURSE ALL THE EXPENSES INCURRED BY THE COMPANY, I N PERFORMANCE OF ITS OBLIGATIONS, TO THE COMPANY. ALL THE EXPENSES WHICH CAN BE DIRECTLY IDENTIFIED WITH THE H OT METAL MAKING AND STEEL ROLL ACTIVITIES AND STEEL MA KING ACTIVITY ARE ALLOCATED TO KSL AND ML RESPECTIVELY, WH ILE ALL COMMON EXPENSES AND CORPORATE EXPENSES (OTHER T HAN PROVISION FOR GRATUITY AND LEAVE ENCASHMENT TO STAF F) ARE RECOVERED FROM THE STRATEGIC ALLIANCE CONSTITUENTS . - THAT AS EVIDENT FROM THE ABOVE, HSL INCURS THE COMM ON COSTS AND ALLOCATES PROPORTIONATE PORTIONS TO ML AN D THE ASSESSEE IN THE AGREED MANNER. HOWEVER, HSL DOES N OT CHARGE ANY AMOUNT AS SERVICE CHARGES; - THAT AS FROM THE FACTS OF THE CASE, IT IS EVIDENT T HAT THE ASSESSEE DOES NOT PAY ANY SUM TO HSL BY WAY OF FEES FOR PROFESSIONAL SERVICES OR ROYALTY OR FOR THAT MATTER A NY SUM REFERRED TO IN CLAUSE (VA) OF S. 28 SO AS TO INVITE THE PROVISIONS OF S. 194J; PAGE 9 OF 20 ITA NOS.859 TO 862/BAN G/2011 9 - THAT THE ASSESSEE REIMBURSED ITS PORTION OF ADMINIS TRATIVE COSTS INCLUDING EMPLOYEE AND CONTRACT LABOUR RELATES COSTS INCURRED BY HSL FOR AND ON BEHALF OF THE ASSESSEE A ND ML; - THAT THE SAID REIMBURSEMENT WAS ON COST TO COST BAS IS AND THE SAID PAYMENT DOES NOT COMPRISE OF ANY INCOME COMPONENT; AS REQUIRED UNDER S.194J FOR LIABILITY TO DEDUCT TAX AT SOURCE. FURTHER, THE SAID PAYMENT WAS NOT IN THE NATURE OF FEES FOR PROFESSIONAL SERVICES OR TECHNIC AL SERVICES OR ROYALTY OR COMPENSATION IN RESTRAINT OF TRADE; - THAT THERE WAS NO PROFIT ELEMENT EMBEDDED IN THE PA YMENTS MADE BY THE ASSESSEE AND ML TO HSL; RELIES ON IN THE CASE OF BRIJ BHUSHAN LAL PARDUMAN KUMAR V. CIT (1978) 115 ITR 524 (SC) - THAT THE REIMBURSEMENT WAS NOT REGARDED AS INCOME I N THE HANDS OF THE RECIPIENT IN THE FOLLOWING CASES: ITO V. M/S. CGI INFORMATION SYSTEMS & MANAGEMENT 2 009- TIOL-668-ITAT-BANG; BIAL V. ITO (2008) 115 TTJ (BANG)477; CIT V. FORTIS HEALTH CARE LTD (2009) 181 TAXMAN 257 (DELHI); CIT V. TATA ENGG. & LOCOMOTIVE CO. LTD (2000) 245 I TR 823 (BOM) - THUS, THE JUDICIAL VIEWS (SUPRA) REITERATE THAT THE REIMBURSEMENT OF EXPENDITURE DOES NOT PARTAKE THE CHARACTER OF INCOME; - THAT IN THE PRESENT CASE: (I) THE PAYMENT MADE BY THE ASSESSEE TO HSL WAS ONLY REIMBURSEMENT MADE IN RESPECT OF THE COST INCURRED BY HSL ON BEHALF OF THE ASSESSEE; PAGE 10 OF 20 ITA NOS.859 TO 862/BA NG/2011 10 (II) THE SAID PAYMENT DOES NOT HAVE ANY ELEMENT OF INCOME IN THE HANDS OF HSL; (III) THE SAID PAYMENT WAS NOT TOWARDS ANY SERVICES AVAILED BY THE ASSESSEE; & (IV) THE SAID PAYMENT WAS NOT IN THE NATURE OF FEE FOR AV AILING TECHNICAL SERVICES OR PROFESSIONAL CHARGES; - THUS, THE PAYMENT MADE BY THE ASSESSEE TO HSL WAS AN OUT AND OUT REIMBURSEMENT IN RESPECT OF THE COST INCURR ED BY HSL ON BEHALF OF THE ASSESSEE WITHOUT ANY PROFIT ELE MENT; INAPPLICABILITY OF TDS PROVISION ON REIMBURSEMENT W HICH DOES NOT HAVE ANY ELEMENT OF INCOME EMBEDDED THEREIN: - THAT THE HONBLE APEX COURT IN THE CASE OF TRANSMIS SION CORPORATION OF A.P LTD & ANR V. CIT (1999) 239 ITR 587 (SC) HAD HELD THAT CERTAIN RECEIPT IS CONSIDERED AS PART OF GROSS RECEIPTS IT IS ESSENTIAL THAT SUCH RECEIPT CO NSTITUTES AN INCOME OR HAS INCOME EMBEDDED THEREIN; - THAT IN THE PRESENT CASE, THERE IS A SAA WHICH CLEA RLY INDICATES THAT HSL IS A CONDUIT PIPE AND THAT THE A NNUAL REPORTS OF ALL THREE COMPANIES (THE ASSESSEE, HSL A ND ML) EMPHASIZE THIS FACT UNAMBIGUOUSLY; - THAT THE FOLLOWING CASE LAWS AMPLY SUPPORT THE PROPO SITION THAT THE TDS PROVISION I.E., THE LIABILITY TO DEDUCT TAX ARISES ONLY IN CASES WHERE THE PAYMENT MADE CONSTITUTES INCOME IN THE HANDS OF THE RECIPIENT LIABLE TO TAX UNDER THE I.T. ACT: GE INDIA TECHNOLOGY CENTRE P LTD V. CIT & ANR (2010 ) 327 ITR 456 (SC); VIJAY SHIP BREAKING CORPORATION AND OTHERS V. CIT (2 009) 314 ITR 309 (SC); & CIT (INTL. TAXATION) & ANR V. ILLINOIS INSTITUTE O F TECHNOLOGY (INDIA) P. LTD (2010) 321 ITR 49 (KAR) PAGE 11 OF 20 ITA NOS.859 TO 862/BA NG/2011 11 - THAT IN CASE OF REIMBURSEMENT OF EXPENSES, NO TAX R EQUIRES TO BE DEDUCTED. THE FOLLOWING CASE LAWS VOUCH SUCH PROPOSITION: ITO V. DR. WILLMAR SCHWABE INDIA (P) LTD (2005) 95 TTJ 53: (2005) 3 SOT 71 (DEL); ITO V. M/S. OPERA GLOBAL PVT. LTD - 2012-TIOL-99-I TAT-DEL (DT:30.9.2011); JAIPUR VIDYUT VITRAN NIGAM LTD V. DCIT (2009) 123 TT J (JP) 888; ACIT V. MODICON NETWORK (P) LTD (2007) 14 SOT 204 ( DEL); CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD (2009) 3 09 ITR 356 (AAR) 7.2.1. IN CONCLUSION, IT WAS PLEADED THAT THE FIN DINGS OF THE CIT (A) REQUIRE TO BE SUSTAINED AND THAT OF THE REVENUES A PPEALS BE DISMISSED. DURING THE COURSE OF HEARING, THE LEARNED AR HAD FU RNISHED TWO VOLUMINOUS PAPER BOOKS WHICH CONTAINED, AMONG OTHERS, COPIES O F (I) STRATEGIC ALLIANCE AGREEMENT (SAA) ENTERED INTO BETWEEN THE ASSESSEE, ML AND HSL; (II) ANNUAL REPORTS; (III) DEBIT NOTES, (III) CASE LAWS ETC., 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS, PERUSED THE RELEVANT CASE RECORDS AND THE DOCUMENTARY EVIDENCES PRODUCED BY THE LEARNED AR IN THE SHAPE OF PAPER BOOKS COUPLED WITH VARIOUS CASE LAWS. 8.1. THE MOOT QUESTION NOW FOR CONSIDER ATION IS AS TO WHETHER THE ASSESSEES CASE FALLS WITHIN THE MISCHIEF OF S. 194 J OF THE ACT OR NOT? 8.2. KALYANI STEELS LIMITED [KSL], KALYANI FERROUS I NDUSTRIES LIMITED [KFIL] KSL AND KFIL, THE CONSTITUENTS OF KALYANI GROUP [KG] ENGAGED IN MANUFACTURING OF STEEL BILLETS, INGOTS A ND ROLLED PRODUCTS AND PAGE 12 OF 20 ITA NOS.859 TO 862/BA NG/2011 12 MUKUND LIMITED [ML] ALSO ENGAGED IN THE BUSINESS OF MANUFACTURE OF STEEL BILLETS, ROLLED PRODUCTS OF VARIOUS GRADES OF STEEL AND OTHER STEEL PRODUCTS WERE DESIRED OF MANUFACTURING STEEL THROUG H A MORE ECONOMICAL AND COST EFFECTIVELY HAVE ENTERED INTO A STRATEGIC ALLIANCE AGREEMENT [SAA] ON 16.5.1998 FOR SETTING UP STEEL MAKING FACI LITIES. UNDER THE SAA, BOTH THE COMPANIES HAVE INSTALLED THEIR PLANTS IN C LOSE BY AND IN PURSUANCE OF THE SAID SAA, THE ASSESSEE ALONG WITH ML PROMOTE D M/S. HOSPET STEELS LIMITED [HSL] FOR EFFECTIVE FUNCTIONING OF A LL THE PLANTS AS ONE COMPOSITE MANUFACTURING UNIT AND, ACCORDINGLY, THE A SSESSEE HAD INSTALLED IRON MAKING AND STEEL ROLLING FACILITIES AND ML HAD INSTALLED STEEL MAKING FACILITIES WITH THE FOLLOWING TERMS, NAMELY: (I) THE SHARE CAPITAL OF HSL WAS HELD BY THE ASSESSEE AN D ML IN EQUAL PROPORTION AND THE INVESTMENT IN THE SA ID STEEL MAKING FACILITIES HAVE BEEN MADE BY SSA CONSTITUENTS IN THE RATIO OF 41.38 % (THE ASSESSEE) : 58.62% (BY ML); (II) THE ASSESSEE AND ML HAVE AGREED TO REIMBURSE HSL THE EXPENDITURE INCURRED ON BEHALF OF THE ASSESSEE AND ML IN COURSE OF ADMINISTERING THE PLANT OPERATI ONS ON COST TO COST BASIS, I.E., ALL THE EXPENSES FOR H OT METAL MAKING AND STEEL ROLLING ACTIVITIES WERE ALLO CATED TO THE ASSESSEE AND THE EXPENSES INCURRED FOR STEEL MAKING ACTIVITIES TO ML; (III) ALL OTHER COMMON EXPENSES AND CORPORATE EXPENSES EXCEPT THE PROVISION FOR GRATUITY AND LEAVE ENCASHME NT TO STAFF ETC., WERE RECOVERED FROM SAA CONSTITUENT S IN THE RATIO OF 41.38% AND 58.62% AS AGREED UPON; PRECISELY, IT HAS BEEN SUBSCRIBED UNDER THE CAPTION - C. PAYMENTS TO JVC IN THE SAA [COURTESY PAGE 88 OF PB AR ] AS UNDER: PAGE 13 OF 20 ITA NOS.859 TO 862/BA NG/2011 13 THE PARTIES AGREE AND UNDERTAKE TO PAY THE JVC IN A DVANCE A SUM OF RS.20.00 MILLION IN THE PRODUCTS SHARING R ATIO OR SUCH OTHER SUM AS MAY BE AGREED FROM TIME TO TIME TO FACILITATE THE OPERATION OF THE PLANTS. ALL COSTS AND EXPENSES INCURRED BY JVC SHALL BE REIMBURSED BY THE PARTIES IN THE PRODUCTS SHARING RATIO THE PARTIES ALSO AGREE TO PAY TO JVC SERVICE CHARGES AS MAY BE AGREED UPON BETWEEN THE PARTIES AND THE J VC. 8.2.1. IN THE SUPPLEMENTARY AGREEMENT [DATED 10.8.1 999] TO SSA DATED 16.5.1998, SUB-PARA 2. 2(C) OF CHAPTER 2 ON P AGE 24 OF THE PRINCIPAL AGREEMENT WAS SUBSTITUTED BY THE FOLLOWING PARAGRAPH : IT IS AGREED BY AND BETWEEN THE PARTIES TO THIS AGREEMENT THAT JVC IS AN OUTCOME OF THE STRATEGIC ALLIANCE BETWEEN THE PARTIES AND WILL ONLY BE ACTING AS CONDUIT PIPE FOR AND ON BEHALF OF THE STRATEGIC ALL IANCE CONSTITUENTS AND NO REMUNERATION WILL BE PAID TO J VC. [REFER: PAGE 135 OF PB AR] 8.2.2. HOWEVER, THE AO [DCIT (TDS)] HAD, IN PURSUA NCE OF ACTION U/S 133A OF THE ACT IN THE PREMISES OF THE ASSESSEE, AR RIVED AT A CONCLUSION THAT THE PAYMENTS MADE BY THE ASSESSEE AND ML TO HSL CANNOT BE SAID TO BE A MERE REIMBURSEMENT OF EXPENSES, BUT, TOWARDS S ERVICES AVAILED FROM HSL. FURTHER, HE HAD ASSERTED THAT THE PAYMENTS BY T HE ASSESSEE TO HSL WERE IN THE NATURE OF FEES TOWARDS PROFESSIONAL AND TECHNICAL SERVICES WITHIN THE MEANING OF THE PROVISIONS OF S. 194J OF THE ACT AND, ACCORDINGLY, THE ASSESSEE WAS TREATED AS AN ASSESSEE IN DEFAULT IN ACCORDANCE WITH THE PROVISIONS OF S.201 OF THE ACT AND INTEREST U/S 201 (1A) OF THE ACT WAS ALSO CHARGEABLE AGAINST THE AMOUNT FOR WHICH NO TDS WAS EFFECTED U/S 194J OF PAGE 14 OF 20 ITA NOS.859 TO 862/BA NG/2011 14 THE ACT. SINCE THE DEDUCTEE [HSL] HAD FILED ITS RE TURN OF INCOME REFLECTING THE PAYMENTS RECEIVED FROM THE ASSESSEE AND ML AS RE CEIPTS IN ITS P & L ACCOUNT, NO DEMAND U/S 201 OF THE ACT WAS RAISED ON THE ASSESSEE FOR NON- DEDUCTION OF TAX. HOWEVER, INTEREST U/S 201(1A) OF THE ACT WAS RAISED FOR HAVING FAILED TO DEDUCT TAX AT SOURCE U/S 194J OF T HE ACT. 8.2.3. THIS STAND OF THE AO HAS BEEN STRONGLY OBJE CTED BY THE LEARNED A R. IT WAS THE CASE OF THE LEARNED A R TH AT THE PAYMENTS MADE BY THE ASSESSEE TO HSL WAS IN THE NATURE OF REIMBURSEM ENT ON COST TO COST BASIS AND THAT NO SERVICE CHARGES HAVE BEEN LEVIED BY HSL IN RESPECT OF TRANSACTIONS UNDERTAKEN BY IT. THUS, ACCORDING TO T HE LEARNED AR, THE SAID PAYMENT DID NOT CONSTITUTE AN INCOME IN THE HANDS OF HSL AND, THEREFORE, THE ASSESSEE WAS NOT LIABLE TO DEDUCT TAX AT SOURCE U/S 194J OF THE ACT. THE LEARNED AR ALSO DREW THE ATTENTION OF THIS BENC H TO THE FACT THAT HSL WAS AN OUTCOME OF THE STRATEGIC ALLIANCE BETWEEN TH E ASSESSEE AND ML GROUP AND WAS ACTING AS A CONDUIT PIPE FOR AND ON B EHALF OF STRATEGIC ALLIANCE CONSTITUENTS AND, HENCE, NO REMUNERATION W AS PAYABLE TO HSL. IN FACT, IT WAS ARGUED, THE RESPECTIVE PARTIES HAVE RE IMBURSED ALL THE EXPENSES INCURRED BY HSL IN PERFORMANCE OF ITS OBLIGATION TO THEM. TO SUBSTANTIATE HIS CLAIM, THE LEARNED AR HAD ALSO INVITED THE ATTE NTION OF THE BENCH TO THE ANNUAL REPORT OF HSL (2007-08] WHEREIN IT HAS BEEN UNAMBIGUOUSLY MADE IT KNOWN THAT THE PAYMENT WAS NOTHING BUT THE REIMBURSE MENT OF THE EXPENSES INCURRED IN PERFORMANCE OF ITS OBLIGATION. 8.2.4. WE HAVE NOW TO ANALYZE - WHETHER THE PAYMENTS MADE BY THE ASSESSEE AND ML TO HSL WERE IN THE NATURE OF FEES T OWARDS PROFESSIONAL AND PAGE 15 OF 20 ITA NOS.859 TO 862/BA NG/2011 15 TECHNICAL SERVICES AS ALLEGED BY THE AO OR REIMBURSEMENT OF THE EXPENSES INCURRED BY HSL IN PERFORMANCE OF ITS OBLIGATIONS AS CANVASSED BY THE LEARNED A.R? 8.2.5. AS PER SAA AND ALSO AN UN-DENYIN G FACT THAT THE SHARE CAPITAL OF HSL WAS HELD BY THE ASSESSEE AND ML IN EQUAL PROP ORTION AND THE INVESTMENT IN THE SAID STEEL MAKING FACILITIES HAS BEEN MADE BY SAA CONSTITUENTS IN THE RATIO OF 41.38 AND 58.62 BY THE ASSESSEE AND ML RESPECTIVELY. AS PER THE TERMS OF SAA, THE ASSESSE E AND ML HAVE REIMBURSED THE EXPENSES INCURRED BY HSL IN PERFORMAN CE OF ITS OBLIGATIONS. AS RIGHTLY ARGUED BY THE LEARNED AR, THE SAID REIMBUR SEMENT WAS ON COST TO COST BASIS AND THE SAME IS EVIDENT FROM THE P&L ACC OUNT AND DEBIT NOTES RAISED BY HSL ON THE ASSESSEE AND ML FOR THE CONCERN ED ASSESSMENT YEARS. THEREFORE, THE SAID PAYMENTS DID NOT COMPRISE OF ANY INCOME COMPONENT. THUS, IN OUR CONSIDERED VIEW, THE REIMBURSEMENT OF SUCH EXPENSES INCURRED BY HSL CANNOT BE CATEGORIZED AS IN THE NATURE OF FEE S TOWARDS PROFESSIONAL AND TECHNICAL SERVICES. 8.2.6. WE SHALL NOW LOOK INTO THE JUDICIA L VIEW ON THE ISSUE - WHETHER THE REIMBURSEMENT CAN BE REGARDED AS INCOME IN THE HANDS OF THE RECIPIENT? (I) IN THE CASE OF CIT V. DUNLOP RUBBER CO. LTD R EPORTED IN (1983) 142 ITR 493 (CAL), THE HONBLE CALCUTTA HIGH COURT HAS HELD AS UNDER: THE TRIBUNAL WAS RIGHT IN ARRIVING AT THE VIEW THA T THE AMOUNTS RECEIVED BY THE ASSESSEE WERE BY WAY OF RECOUPMENT OF THE EXPENSES INCURRED ON THE RESEARCH DEPARTMENT MAINTAINED BY THE ASSESSEE IN LONDON. TH E PAGE 16 OF 20 ITA NOS.859 TO 862/BA NG/2011 16 RESEARCH CARRIED ON BY THE ASSESSEE WAS FOR THE BENE FIT OF ALL CONCERNED, INCLUDING THE INDIAN COMPANY. IT WAS FOR SHARING OF THE EXPENSES OF THE RESEARCH WHICH W AS UTILIZED BY THE SUBSIDIARIES AS WELL AS THE HEAD OFF ICE ORGANIZATION, THAT THE PAYMENTS WERE MADE BY THE INDI AN COMPANY AND RECEIVED BY THE ASSESSEE. THE FACT THAT AFTER THE TERMINATION WHAT WAS TO HAPPEN TO THESE INFORMATION GATHERED WAS NOT MENTIONED INDICATED TH AT IT COULD NOT BE ANYTHING BUT SHARING OF THE EXPENSES BECAUSE IF IT HAD PROVIDED THAT THE INFORMATION WOU LD BELONG EITHER TO THE PARENT COMPANY OR TO THE SUBSID IARY, THEN PERHAPS IT MIGHT HAVE BEEN CONTENDED THAT PAYMENTS WERE EITHER ROYALTY OR HIRING CHARGES OF THE INFORMATION SAND AS SUCH COULD BE TREATED AS INCOME . BUT THE VERY FACT THAT THE TECHNICAL DATA WAS JOINTLY OBT AINED AND THE EXPENSES WERE SHARED TOGETHER INDICATED THA T IT COULD NOT BE TREATED AS INCOME. THE FACT WAS THAT ONLY 0.67 PER CENT OF THE TURNOVER WAS ALLOWED BECAUSE O F THE RESTRICTIONS IMPOSED BY THE GOVERNMENT. ACCORDINGLY, THE AMOUNTS RECEIVED BY THE ASSESSEE DID NOT CONSTITUTE INCOME ASSESSABLE TO TAX. WITH DUE REGARDS, WE HAVE P ERUSED THE RULING OF THE HONBLE COURT AND OF THE CONSIDERED VIEW THAT THE RATIO LAI D DOWN BY THE COURT (SUPRA) IS SQUARELY APPLICABLE TO THE FACTS OF THE I SSUE ON HAND. (II) THE HONBLE AUTHORITY FOR ADVANCE RULING S, NEW DELHI IN THE CASE OF DECTA V. CIT REPORTED IN (1999) 237 ITR 190 (AAR) HAD HELD THAT THE AMOUNT OF CONTRIBUTION RECEIVED/RECEIVABLE TO R ECOVER PART OF THE COST OF TECHNICAL ASSISTANCE PROVIDED BY THE APPLICA NT UNDER THE PROVISIONS OF ITS AID PROGRAMME TO THE COMPANIES ASSISTED BY IT IN INDIA IS NEITHER INCOME OF THE APPELLANT UNDER THE PROVISIONS OF THE INCOME-TAX ACT NOR FEES FOR TECHNICAL SERVICES PAGE 17 OF 20 ITA NOS.859 TO 862/BA NG/2011 17 8.2.7. TAKING INTO ACCOUNT THE FACTS AND CIRCUMSTANCES OF THE ISSUE AND ALSO IN CONFORMITY WITH THE RULINGS OF THE JUDIC IARY (SUPRA), WE ARE OF THE FIRM VIEW THAT THE REIMBURSEMENTS OF PAYMENT BY THE A SSESSEE AND ML TO HSL CANNOT BE REGARDED AS INCOME IN THE HANDS OF HS L. 8.3. WITH REGARD TO THE APPLICABILITY OR OT HERWISE OF THE TDS PROVISION ON THE REIMBURSEMENT OF PAYMENTS ON COST TO COST BAS IS, WE SHALL NOW PERUSE THE JUDICIAL PRONOUNCEMENTS ON A SIMILAR ISSUE. (I) THE HONBLE SUPREME COURT IN THE CASE OF GE INDIA TECHNOLOGY CEN. (P) LTD V. CIT REPORTED IN (2010) 327 ITR 456 (SC) HAD HELD THAT 7.WHERE A PERSON RESPONSIBLE FOR DEDUCTION IS FAIRLY CERTAIN THEN HE CAN MAKE HIS OWN DETERMINATIO N AS TO WHETHER THE TAX WAS DEDUCTIBLE AT SOURCE AND, IF SO, WHAT SHOULD BE THE AMOUNT THEREOF. 8. IF THE CONTENTION OF THE DEPARTMENT THAT THE MO MENT THERE IS REMITTANCE THE OBLIGATION TO DEDUCT TAS AR ISES IS TO BE ACCEPTED THEN WE ARE OBLITERATING THE WORD S CHARGEABLE UNDER THE PROVISIONS OF THE ACT IN SEC TION 195(1). THE SAID EXPRESSION IN SECTION 195(1) SHOW S THAT THE REMITTANCE HAS GOT TO BE OF A TRADING RECEIPT, THE WHOLE OR PART OF WHICH IS LIABLE TO TAX IN INDIA. THE PAYER IS BOUND TO DEDUCT TAS ONLY IF THE TAX IS ASSESSABLE IN INDIA. IF TAX IS NOT SO ASSESSABLE, THERE IS NO QU ESTION OF TAS BEING DEDUCTED. [SEE: VIJAY SHIP BREAKING CORPN V. CIT (2009) 314 ITR 309 (SC)]. (II) THE EARLIER BENCH OF THI S TRIBUNAL HAD, IN THE CASE OF ITO V. M/S. CGI INFORMATION SYSTEMS & MANAGEMENT CONSULT ANTS PVT. LTD REPORTED IN 2009-TIOL-668-ITAT, BANG HELD THUS: PAGE 18 OF 20 ITA NOS.859 TO 862/BA NG/2011 18 6. THE BANGALORE BENCH IN THE CASE OF BIAL V. ITO , BANGALORE IN ITA NO.536 TO 539/BANG/2006 = [2008- TIOL-536-ITAT-BANG] VIDE ORDER DATED 17 TH DECEMBER, 2007 HAS HELD THAT NO TDS IS REQUIRED TO BE DEDUCTE D WHEN IT IS REIMBURSEMENT OF EXPENSES. THE BANGALOR E BENCH VIDE ORDER DATED 17 TH DECEMBER, 2007 OBSERVED THAT THE EXPENSES AS INCURRED BY THE PROMOTERS COMPENSATED TO THEM WOULD NOT INVOLVE ANY PROFIT ELEMENT ALSO AND, THEREFORE, NO DEDUCTION OF TAX IS REQUIRED TO BE MADE. FOLLOWING THAT DECISION, WE H OLD THAT NO TDS WAS REQUIRED TO BE DEDUCTED IN RESPECT OF EXPENSES REIMBURSED. (III) IN THE CASE OF CIT V. EXPE DITORS INTERNATIONAL (INDIA) (P) LTD REPORTED IN (2012) 24 TAX MANN.COM 76 (DELHI), THE HONBLE DELHI HIGH COURT HAD AGREED WITH THE ASSESSEES COUNSELS ARGU MENT THAT THE PAYMENT RAISED WAS TOWARDS REIMBURSEMENT OF THE EXPENSES IN CURRED BY THE PARENT COMPANY, NAMELY, GLOBAL MANAGEMENT EXPENSES AND OTHER EXPENSES. WHEN SUCH PAYMENT WAS NOT CHARGEABLE TO TAX AT ALL, THE C OLLECTING MACHINERY PROVISION, WHETHER SECTION 194J OR SECTION 195, WOU LD NOT GET TRIGGERED. ACCORDING TO HER (THE ASSESSEES COUNSEL), THERE MU ST BE COMPONENT OF INCOME CHARGEABLE TO TAX AND ONLY THEN THE QUESTION OF DEDUCTION OF TAX AT SOURCE WOULD ARISE IN AS MUCH AS TAX AT SOURCE IS T O BE DEDUCTED ON INCOME AND NOT ON EXPENSES. IN ITS RULING, THE HONBLE COURT HAD CONCLUDED THAT , 6.PRIMA FACIE, WE FIND FORCE IN THE ARGUMENT OF LE ARNED COUNSEL FOR THE ASSESSEE. IN ANY CASE, THIS IS THE VIEW ALREADY TAKE N BY THIS COURT IN THE CASE OF THIS VERY ASSESSEE AFFIRMING THE EARLIER DEC ISION OF THE TRIBUNAL.. 8.3.1. IN AN OVERALL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE ISSUES AS DELIBERATED UPON IN THE FORE-GOING PA RAGRAPHS, THE FINDINGS OF PAGE 19 OF 20 ITA NOS.859 TO 862/BA NG/2011 19 THE LEARNED CIT(A) UNDER CONSIDERATION AND ALSO IN CONFORMITY OF THE JUDICIAL VIEWS ON THE ISSUES CITED SUPRA, WE ARE OF THE CONS IDERED VIEW THAT (I) THE CIT (A) WAS JUSTIFIED IN HOLDING THAT THE PAYMEN TS MADE BY THE ASSESSEE AND ML TO HSL TOWARDS SERVICES AVAILED FOR OPERATING AND MAINTAINING AN INTEGRATED STEEL PLANT WERE IN THE NATURE OF REIMBURSEMENTS; & (II) THE CIT (A) WAS ALSO JUSTIFIED IN HOLDING THAT THE SAID PAYMENTS BEING IN THE NATURE OF REIMBURSEMENTS ON CO ST TO COST BASIS AND THUS, THE SAID PAYMENTS DID NOT CONSTITUTE INCOME IN THE HANDS OF HSL AND, THEREFOR E, THE ASSESSEE AS WELL AS ML WERE NOT LIABLE TO DEDUC T TAX AT SOURCE U/S 194J OF THE ACT. 8.3.2. IN A NUT-SHELL, THERE WAS NO INFIR MITY IN THE FINDINGS OF THE LEARNED CIT (A) AND, THUS, WE ARE INCLINED TO SUSTA IN THE SAME IN TOTO. IT IS ORDERED ACCORDINGLY. 8.3.3. BEFORE PARTING, WE WOULD LIKE TO REITERATE THAT THE CASE LAWS RELIED ON BY THE LEARNED D R HAVE BEEN KEPT IN VIEW WHILE ARRIVING AT THE ABOVE CONCLUSION. 8.4. AS CLARIFIED ABOVE, THE REASONS RECORDED BY US IN THE CASE OF THE ASSESSEE - M/S. KALYANI STEELS LIMITED FOR BOT H THE ASSESSMENT YEARS UNDER CONSIDERATION ARE APPLICABLE IN THE CASE OF M /S. MUKUND LIMITED ALSO AS THE ISSUES RAISED BY THE REVENUE WERE IDENTICAL I N THE CASE OF M/S. MUKUND LIMITED TO THAT OF THE PRESENT ASSESSEE [M/S . KALYANI STEELS LIMITED]. PAGE 20 OF 20 ITA NOS.859 TO 862/BA NG/2011 20 9. IN THE RESULT: (I) THE REVENUES APPEALS FOR THE AYS 2008-09 AND 2009- 10 IN THE CASE OF M/S. KALYANI STEELS LIMITED ARE DISMISSED; A ND (II) THE REVENUES APPEALS FOR THE AYS 2008-09 AND 2009- 10 IN THE CASE OF M/S. MUKUND LIMITED ARE DISMISSED; THE ORDER PRONOUNCED ON THE 18 TH DAY OF DECEMBER, 2012 AT BANGALORE. SD/- SD/- (N BARATHVAJA SANKAR) (GEORGE GEORGE K) VICE PRESIDENT JUDICIAL MEMBER COPY TO : 1. THE REVENUE 2. THE ASSESSEE 3. THE CIT CONCERNE D. 4. THE CIT(A) CONCERNED. 5. DR 6. GF MSP/ BY ORDER SENIOR PRIVATE SECRETARY, ITAT, BAN GALORE.