DCIT OSD 1(1), MUMBAI V. THE SARASWAT CO-OP BANK P.LTD, NAVI MUMBAI

ITA 8622/MUM/2010

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2213 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 03-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 10-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANJUNATH SWAMYCIT
• Keywords: Capital asset; Depreciation; Opportunity of being heard; Earning of tax free income; Tax effect; Revised return; Revenue expenditure; Capital expenditure
• Section: 43B; 234B; 14A

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 8622 /MUM/2010 ( / ASSESSMENT YEAR : 2007-08) THE DEPUTY COMMISSIONER OF INCOME TAX(OSD),1(1) ROOM NO. 540/564, 5 TH FLOOR AAYAKAR BHAWAN, M K ROAD NEW MARINE LINES MUMBAI-400020 / V. THE SARASWAT CO-OPERATIVE BANK LIMITED MADHUSHREE, PLOT NO. 85 DISTRICT NAVI MUMBAI- 400 703 ./ PAN : AAACT5543L ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 7738 /MUM/2010 ( / ASSESSMENT YEAR : 2007-08) THE SARASWAT CO-OPERATIVE BANK LIMITED MADHUSHREE, PLOT NO. 85 DISTRICT NAVI MUMBAI- 400 703 / V. THE DEPUTY COMMISSIONER OF INCOME TAX(OSD),1(1) ROOM NO. 540/564, 5 TH FLOOR , AAYAKAR BHAWAN, M K ROAD, NEW MARINE LINES MUMBAI-400020 ./ PAN : AAACT5543L ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 1140 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09) THE ADDITIONAL COMMISSIONER OF INCOME TAX,1(3) ROOM NO. 540/564, 5 TH FLOOR AAYAKAR BHAWAN, M K ROAD NEW MARINE LINES MUMBAI-400020 / V. THE SARASWAT CO-OPERATIVE BANK LIMITED MADHUSHREE, PLOT NO. 85 DISTRICT NAVI MUMBAI- 400 703 ./ PAN : AABAT4497Q ( / APPELLANT ) .. ( / RESPONDENT ) ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 2 ./ I.T.A. NO. 694 /MUM/2012 ( / ASSESSMENT YEAR : 2008-09) THE SARASWAT CO-OPERATIVE BANK LIMITED ACCOUNTS DEPARTMENT, 4 TH FLOOR, PLOT NO. 983, APPASAHEB MARATHE MARG PRABHADEVI, MUMBAI-400025 / V. THE ADDITIONAL COMMISSIONER OF INCOME TAX,1(3) ROOM NO. 540/564, 5 TH FLOOR AAYAKAR BHAWAN, M K ROAD NEW MARINE LINES MUMBAI-400020 ./ PAN : AABAT4497Q ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 5627 /MUM/2003 ( / ASSESSMENT YEAR : 2009-10) THE DEPUTY COMMISSIONER OF INCOME TAX,1(3) ROOM NO. 564, 5 TH FLOOR AAYAKAR BHAWAN, M K ROAD NEW MARINE LINES MUMBAI-400020 / V. THE SARASWAT CO-OPERATIVE BANK LIMITED ACCOUNTS DEPARTMENT, 4 TH FLOOR, PLOT NO. 983, APPASAHEB MARATHE MARG PRABHADEVI, MUMBAI- 400025 ./ PAN : AABAT4497Q ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO. 1 /MUM/2014 ( / ASSESSMENT YEAR : 2010-11) THE SARASWAT CO-OPERATIVE BANK LIMITED ACCOUNTS DEPARTMENT, 4 TH FLOOR, PLOT NO. 983, APPASAHEB MARATHE MARG PRABHADEVI, MUMBAI-400025 / V. THE ADDITIONAL COMMISSIONER OF INCOME TAX,1(3) ROOM NO. 540/564, 5 TH FLOOR AAYAKAR BHAWAN, M K ROAD NEW MARINE LINES MUMBAI-400020 ./ PAN : AABAT4497Q ( / APPELLANT ) .. ( / RESPONDENT ) ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 3 REVENUE BY SHRI MANJUNATH SWAMY,CIT- DR ASSESSEE BY : SHRI MIHIR NANIWADEKAR / DATE OF HEARING : 11-08-2016 / DATE OF PRONOUNCEMENT : 31-10-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THESE BUNCH OF SIX APPEALS BY REVENUE AS WELL AS T HE ASSESSEE RELATES TO THE ASSESSMENT YEARS 2007-08, 2008-09, 2009-10 A ND 2010-11. SINCE COMMON ISSUES ARE INVOLVED AND HENCE THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER. 2. FIRST WE SHALL TAKE UP CROSS APPEALS FOR ASSESSM ENT YEAR 2007-08 , REVENUE APPEAL BEING ITA NO. 8622/MUM/2010 , WHILE THE ASSESSEE APPEAL BEING ITA NO. 7738/MUM/2010, BOTH FOR THE ASSESSMEN T YEAR 2007-08 3. THE REVENUE IS AGGRIEVED IN ITA NO 8622/MUM/2010 FOR THE ASSESSMENT YEAR 2007-08 , VIDE FIRST EFFECTIVE GROUND BY DECIS ION OF LEARNED CIT(A) IN RESTRICTING DISALLOWANCE OF EXPENDITURE TO RS.3,55, 270/- U/S 14A OF THE INCOME-TAX ACT , 1961 (HEREINAFTER CALLED THE ACT ) AS AGAINST DISALLOWANCE OF RS.1,59,23,145/- OF EXPENDITURE MADE BY THE AO W ITH RESPECT TO EXPENDITURE INCURRED IN RELATION TO THE EARNING OF AN INCOME WHICH DOES NOT FORM PART OF TOTAL INCOME. THE REVENUE IS AGGRIEVED BY THE DECISION OF LEARNED CIT(A) IN HOLDING THAT INVESTMENTS IN SHARES OF SUB SIDIARY COMPANY IS NOT AN ASSET YIELDING TAX FREE INCOME AND HAS TO BE TOTALL Y EXCLUDED FROM COMPUTATION OF DISALLOWANCE OF EXPENDITURE U/S 14A OF THE ACT. THE ASSESSEE EARNED TAX FREE DIVIDEND INCOME OF RS. 2,58,64,934/- WHICH WAS CLAIMED EXEMPT FROM TAX. THE ASSESSEE DID NOT ALLOC ATED ANY EXPENSES ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 4 INCURRED FOR EARNING DIVIDEND INCOME . THE AO APPLI ED RULE 8D OF INCOME-TAX RULES, 1962 AND MADE DISALLOWANCE OF RS.1,39,96,085 /- U/R 8D(2)(II) OF INCOME-TAX RULES, 1962 AND RS.19,27,060/- U/R 8D(2) (III) OF INCOME-TAX RULES, 1962 , AGGREGATING TO RS. 1,59,23,145/-. BE FORE LEARNED CIT(A), THE ASSESSEE RELIED ON THE DECISION OF HONBLE BOMBAY H IGH COURT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED V. D CIT (2010) 328 ITR 81 (BOM.) AND ARGUED THAT RULE 8D OF INCOME-TAX RULES, 1962 IS NOT APPLICABLE FOR THE ASSESSMENT YEAR 2007-08 AND IS APPLICABLE F ROM THE ASSESSMENT YEAR 2008-09 ONWARDS. IT WAS CONTENDED BY THE ASSESSEE T HAT THE REASONABLE DISALLOWANCE CAN BE MADE OF THE EXPENDITURE INCURRE D IN RELATION TO EARNING OF INCOME WHICH DOES NOT FORM PART OF TOTAL INCOME U/S 14A OF THE ACT AS HELD BY HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED(SUPRA). THE ASSESSEE ALSO PLEADED BEFORE THE AO THAT NO EXPENDITURE HAS BEEN INCURRED TO EARN TH E INCOME WHICH WAS NOT CHARGEABLE TO TAX , WHICH IS NOT CONSIDERED BY THE AO AND HE SIMPLY PROCEEDED TO INVOKE RULE 8D OF INCOME-TAX RULES, 19 62 WITHOUT RECORDING SATISFACTION WHICH IS AGAINST THE DECISION OF HONB LE BOMBAY HIGH COURT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED(SUPRA). THE LEARNED CIT(A) HELD THAT REASONABLE DISALLOWANCE SH OULD HAVE BEEN MADE BY THE AO KEEPING IN VIEW TIME , ENERGY, EFFORT AND EX PENSES INCURRED IN RETAINING AND MAINTENANCE OF INVESTMENT IN SHARES A S A PRUDENT BUSINESS MAN.IT WAS OBSERVED BY THE LEARNED CIT(A) THAT RULE 8D OF INCOME-TAX RULES, 1962 READ WITH SECTION 14A OF THE ACT PROVIDE REASO NABLE DISALLOWANCE OF THE EXPENSES INCURRED IN RELATION TO EARNING OF INCOME WHICH IS EXEMPT FROM TAX . THE LEARNED CIT(A) , HOWEVER, DIRECTED THAT ALL INV ESTMENTS WHICH YIELD TAXABLE INCOME AS WELL STRATEGIC INVESTMENT OF RS.1 0 CRORES MADE BY THE ASSESSEE IN ITS SUBSIDIARY SARASWAT INFOTECH LIMITE D BE EXCLUDED FOR COMPUTING DISALLOWANCE U/S 14A OF THE ACT READ WITH RULE 8D OF INCOME TAX RULES, 1962. ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 5 THE REVENUE IS AGGRIEVED BY THE DECISION OF LEARNED CIT(A) IN EXCLUDING STRATEGIC INVESTMENT IN SUBSIDIARY COMPANY OF RS. 1 0.0 CRORES IN SARASWAT INFOTECH LIMITED WHILE COMPUTING DISALLOWANCE U/S 14A OF THE ACT READ WITH RULE 8D OF INCOME-TAX RULES, 1962 AND HAVE FILED TH IS APPEAL BEFORE THE TRIBUNAL. IT WAS SUBMITTED BY LEARNED DR THAT THE A SSESSEE HAS NOT FILED DETAILS OF EXPENDITURE INCURRED IN RELATION TO THE EARNING OF EXEMPT INCOME BEFORE THE AUTHORITIES BELOW. IT WAS SUBMITTED THAT THE LEARNED CIT(A) ERRED IN GIVING RELIEF TO THE ASSESSEE BY EXCLUDING INVESTME NT OF RS 10 CRORES MADE BY THE ASSESSEE IN SUBSIDIARY COMPANY SARASWAT INFOTEC H LIMITED, WHICH IS CAPABLE OF YIELDING EXEMPT INCOME. THE LD DR RELIED ON DECISION OF HONBLE SUPREME COURT IN THE CASE OF DISTRIBUTORS (BARODA) PRIVATE LIMITED V.UOI REPORTED IN (1985) 155 ITR 120(SC). THE LD COUNSE L FOR THE ASSESSEE ON THE OTHER HAND RELIED ON THE DECISIONS OF THE TRIBUNAL IN THE CASE OF GARWARE WALL ROPES LIMITED V. ADDL. CIT IN ITA NO. 5408/MUM/2012 DATED 15-01-2014, EIH ASSOCIATES HOTELS LIMITED V. DCIT IN ITA NO. 15 03/MDS./2012, INTERGLOBE ENTERPRISES LIMITED V. DCIT IN ITA NO. 1580/DEL/201 3 AND J M FINANCIAL LIMITED V. ACIT IN ITA NO. 4521/MUM/2012.IT WAS ALS O SUBMITTED THAT RULE 8D OF INCOME-TAX RULES, 1962 IS NOT APPLICABLE FOR THE IMPUGNED ASSESSMENT YEAR 2007-08. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED TH E MATERIAL ON RECORD INCLUDING CASE LAWS RELIED UPON BY RIVAL PARTIES. T HE ASSESSEE HAS EARNED DIVIDEND INCOME OF RS.2,58,64,934/- WHICH WAS CLAIM ED EXEMPT FROM TAX. THE ASSESSEE HAS CLAIMED THAT NO EXPENDITURE HAS BEEN I NCURRED BY THE ASSESSEE IN RELATION TO THE EARNING OF EXEMPT INCOME. THE AU THORITIES BELOW APPLIED RULE 8D OF INCOME-TAX RULES, 1962. IN OUR CONSIDERE D VIEW , RULE 8D OF INCOME-TAX RULES, 1962 IS NOT APPLICABLE FOR THE IM PUGNED ASSESSMENT YEAR 2007-08 , WHILE REASONABLE DISALLOWANCE IS TO BE MA DE OF EXPENDITURE INCURRED IN RELATION TO THE EARNING OF INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME , KEEPING IN VIEW THE MANDATE OF SECTI ON 14A OF THE ACT. RELIANCE ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 6 IS PLACED ON THE DECISION OF HONBLE BOMBAY HIGH CO URT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED(SUPRA). IN OUR CONSIDERED VIEW , END OF JUSTICE WILL BE MET IF DISALLOWANCE U/S 14A OF THE ACT BE MADE @5% OF TOTAL DIVIDEND INCOME CLAIMED TO BE EXEMPT BY THE A SSESSEE WHICH IS A REASONABLE DISALLOWANCE KEEPING IN VIEW FACTS AND C IRCUMSTANCES OF THE CASE. WE ORDER ACCORDINGLY. 4. THE NEXT GRIEVANCE OF THE REVENUE IS WITH RESPEC T OF THE DECISION OF LEARNED CIT(A) IN RESTRICTING THE DISALLOWANCE MADE U/S. 40 A(2)(B) OF THE ACT IN DIRECTING THE AO TO ADOPT THE COST PER TRANSACTION AT RS. 3.06 AGAINST RS.1.64 WORKED OUT BY THE AO. IT WAS OBSERVED BY THE AO THA T THE ASSESSEE HAS PAID RS.13,44,73,913/- TO ITS RELATED ENTERPRISE SARASWA T INFOTECH LIMITED( HEREINAFTER CALLED SIL) FOR PROVISION OF SERVICES PERTAINING TO SOFTWARE AND DATA ENTRY. THE SIL AS EXPLAINED BY THE ASSESSEE WO ULD MAINTAIN AND MANAGE THE ENTIRE IT INFRASTRUCTURE OF THE BANK. TRANSACTI ONS ARE DONE BY SIL AND THE ASSESSEE PAYS ON PER TRANSACTION BASIS TO SIL . T HE ASSESSEE PAID UP-TO SEPTEMBER 2006 TRANSACTION CHARGES @RS.1.38 PER TRA NSACTION TO SIL , WHILE THE SAME WAS RE-WORKED BASED ON CURRENT COST AND TH E PROJECTED OPERATIONAL COST IN FUTURE OF SIL AS WELL PROJECTED INVESTMENT TO RS. 4 PER TRANSACTION. THE WORKING IS REPRODUCED BY THE AO IN THE ASSESSMENT O RDER PAGE 5/6 BASED ON ACTUAL COSTS AS WELL PROJECTED INVESTMENTS AND COST S OF SIL. KEEPING IN THE VIEW THAT CERTAIN EXPENDITURE ARE TO BE EXCLUDED SI NCE SIL WAS OCCUPYING THE PREMISES BELONGING TO THE ASSESSEE AND ALSO ENJOYIN G THE FACILITY SUCH AS LIFT, SECURITY SERVICES , SERVICES OF TELEPHONE OPERATOR ETC AND ALSO ELECTRICITY EXPENSES FOR WHICH THE ASSESSEE WORKED OUT A LUMPSU M AMOUNT OF THESE SERVICES WHICH WERE UTILIZED BY SIL . THE AO OBSERV ED THAT THESE COSTS PAID BY THE ASSESSEE TO SIL ARE UN-REASONABLE AND EXCESSIVE KEEPING IN VIEW THE PROVISIONS OF SECTION 40A(2)(B) OF THE ACT AS THE P AYMENTS ARE MADE TO RELATED ENTERPRISE. THE AO OBSERVED THAT ON VERIFICATION OF THE ADDITIONS TO FIXED ASSETS MADE BY SIL DURING THE YEAR, IT WAS OBSERVED THAT TOTAL ADDITION IS RS. ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 7 2.99 CRORES AND DEPRECIATION ON SLM IS RS. 31.25 LA CS WHILE THE TOTAL DEPRECIATION USED IN THE CHART FOR WORKING OUT COST WORKED OUT RS.420.50 LACS WHICH IS ALMOST 14 TIMES THE ACTUAL DEPRECIATION CL AIMED. THE ACTUAL EXPENDITURE OF SIL IS RS. 825.21 LACS(EXCLUDING DEP RECIATION) , WHILE FOR PURPOSES OF WORKING THE COST IT HAS BEEN TAKEN AT R S. 1091.90 LACS WHICH IS IN EXCESS BY RS. 2.46 CRORES. THE AO WORKED OUT COST P ER TRANSACTION AT ARMS LENGTH AT RS.1.64 AND EXCESSIVE EXPENSES CLAIMED BY THE ASSESSEE TO THE TUNE OF RS. 7.95 CRORES WERE ADDED TO THE INCOME OF THE ASSESSEE BY INVOKING PROVISIONS OF SECTION 40A(2)(A) OF THE ACT. IN FIRS T APPEAL BEFORE LEARNED CIT(A), THE ASSESSEE CONTENDED THAT SECTION 40A(2) OF THE A CT IS NOT APPLICABLE TO THE CO-OPERATIVE SOCIETY RELYING ON DECISION OF MUMBAI- TRIBUNAL IN THE CASE OF MANJARA SHETKARI SAHAKARI KARKHANA LIMITED REPORTED IN 91 ITD 361 AND ALSO SUBMITTED THAT THE ACTUAL COSTS INCURRED BY TH E SUBSIDIARY IN PROVISIONS OF SERVICES TO THE ASSESSEE WERE BEFORE THE AO AS T HE SUBSIDIARY COMPANY HAS NOT TAKEN ANY OTHER WORK EXCEPT THE ASSESSEE COMPAN YS WORK AND CONSEQUENTLY ALL THE EXPENSES OF THE SUBSIDIARY COM PANY WERE IN RELATION TO THE PROVISIONS OF SERVICES TO THE ASSESSEE COMPANY. THUS, IT WAS SUBMITTED THAT THE AO SHOULD HAVE WORKED OUT DISALLOWANCE BAS ED ON ACTUAL COSTS ONLY. THE LEARNED CIT(A) HELD THAT SECTION 40A(2) OF THE ACT IS APPLICABLE TO CO- OPERATIVE SOCIETY AND THE CASE RELIED UPON BY THE A SSESSEE IS DISTINGUISHABLE AS IN THAT CASE PAYMENTS WERE MADE BY THE CO-OPERAT IVE SOCIETY TO ITS MEMBERS BUT IN THE INSTANT CASE PAYMENTS ARE MADE B Y THE ASSESSEE TO ITS SUBSIDIARY COMPANY. IT WAS FURTHER HELD THAT THE CO -OPERATIVE SOCIETY IS NOT DEFINED U/S 2(31) OF THE ACT AND IS TO BE ASSESSED IN THE CAPACITY OF AOP. HOWEVER , LEARNED CIT(A) AGREED WITH THE ASSESSEE T HAT IF ACTUAL COSTS ARE AVAILABLE THEN IN THAT CASE, THE AO SHOULD HAVE PIC KED UP THE ACTUAL EXPENSES FIGURE RATHER THAN MAKING ESTIMATION. THE LEARNED C IT(A) WORKED OUT COST PER TRANSACTION BASED ON ACTUAL COST FIGURES AT RS. 3.0 6 PER TRANSACTION ON CONTRAST TO RS. 4.49 PER TRANSACTION ACTUALLY PAID BY THE ASSESSEE AND DIRECTED THE AO TO BASE THE DISALLOWANCE ON THESE F IGURES. ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 8 AGGRIEVED, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL . THE LEARNED DR RELIED ON THE DECISION OF THE AO. IT WAS SUBMITTED THAT THE D ECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. MANJARA SHETKARI S AHAKARI SAKHAR KARKHANA LIMITED (2008) 301 ITR 191(BOM) IS NOT APPLICABLE A S THE FACTS ARE DISTINGUISHABLE AS IN THE SAID CASE PAYMENTS WERE M ADE BY CO-OPERATIVE SOCIETY TO ITS MEMBER UNDER STATE ADVANCE PRICE FIX ED BY THE STATE GOVERNMENT OVER AND ABOVE STATUTORY MINIMUM PRICE F IXED BY THE CENTRAL GOVERNMENT, WHILE IN THE INSTANT APPEAL THE PAYMENT S ARE MADE BY CO- OPERATIVE SOCIETY TO ITS SUBSIDIARY COMPANY AND NOT TO ITS MEMBERS. IT WAS SUBMITTED THAT IN THE DEFINITION OF PERSON AS CON TAINED IN SECTION 2(31) OF THE ACT, CO-OPERATIVE SOCIETY IS NOT INCLUDED AND THE A SSESSMENT IS TO BE DONE AS AOP. IT WAS SUBMITTED THAT THE SAID SIL IS PROVIDIN G SERVICES TO OTHER CLIENTS AND THE LEARNED CIT(A) ERRED IN HOLDING THAT THE SI L IS NOT PROVIDING SERVICES TO THE OTHER CLIENTS APART FROM THE ASSESSEE. IT WA S ALSO SUBMITTED THAT THE ASSESSEE HAD NOT SUBMITTED DETAILS BEFORE THE AUTHO RITIES BELOW. THE LEARNED COUNSEL FOR THE ASSESSEE WOULD ON THE OTHER HAND SA Y THAT THE PROVISIONS OF SECTION 40A(2) OF THE ACT IS NOT APPLICABLE TO CO-O PERATIVE SOCIETY AS HELD BY HONBLE BOMBAY HIGH COURT IN 301 ITR 191(SUPRA). IT IS THE SAY OF THE LEARNED COUNSEL THAT SIL IS SUBSIDIARY OF THE ASSESSEE AND IS RENDERING BACK END SERVICES RELATING TO IT INFRASTRUCTURE. IT WAS SUBM ITTED THAT PAYMENTS WERE MADE BY THE ASSESSEE TO SIL WHICH ARE HELD TO BE EX CESSIVE AND UN- REASONABLE KEEPING IN VIEW PROVISIONS OF SECTION 40 A(2) OF THE ACT BY THE AO AND PARTIAL RELIEF IS GRANTED BY THE LEARNED CIT(A) .THE ASSESSEES COUNSEL SUBMITTED THAT DISALLOWANCE CANNOT BE SUSTAINED AS THE SECTION 40A(2) OF THE ACT IS NOT APPLICABLE TO CO-OPERATIVE SOCIETY. THE ASSESSEE ALSO RELIED UPON DECISION OF THE PUNE-TRIBUNAL IN THE CASE OF SHIVA MRUT DUDH UTPADAK SAH. SANGH MARYADIT V. DCIT IN ITA NO. 742/PUNE/1991 REP ORTED IN (1999) 63TTJ 405(PUNE-TRIB.). ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 9 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL ON RECORD INCLUDING CASE LAWS RELIED UPON BY RIVAL PARTIES. T HE ASSESSEE IS A CO-OPERATIVE SOCIETY AND HAS MADE PAYMENT FOR AVAILING BACK END SERVICES FOR MANAGING ITS IT INFRASTRUCTURE FROM ITS SUBSIDIARY COMPANY SIL. THE ASSESSEES PAYMENT WERE HELD TO BE EXCESSIVE AND UNREASONABLE AS BEING PAYMENT MADE TO RELATED PARTIES U/S 40A(2) OF THE ACT AND TO THE EXTENT CON SIDERED EXCESSIVE AND UN- REASONABLE , DISALLOWANCES OF THE EXPENDITURE CONSI DERED UNREASONABLE AND EXCESSIVE WERE MADE BY THE AO , WHICH DISALLOWANCE WAS PARTLY CONFIRMED BY LEARNED CIT(A). WE HAVE CONSIDERED AND PERUSED THE PROVISIONS OF SECTION 40A(2)(A) AND 40A(2))B) OF THE ACT AND HAVE OBSERVE D THAT CO-OPERATIVE SOCIETY ARE NOT COVERED UNDER THE SAID PROVISIONS, WHILE A SSOCIATION OF PERSON IS COVERED UNDER THE SAID PROVISION. IT IS ALSO OBSERV ED THAT WHILE DEFINING PERSON U/S 2(31) OF THE ACT, THE LAW MAKERS HAVE NO T INCLUDED CO-OPERATIVE SOCIETY WHILE ASSOCIATION OF PERSON IS INCLUDED WHILE THE CO-OPERATIVE SOCIETY IS DEFINED U/S. 2(19) OF THE ACT. SECTION 40A(2) OF THE ACT APPLIES TO THE PERSON SPECIFICALLY NAMED THEREIN AND SINCE CO-OPERATIVE S OCIETY DOES NOT FOUND MENTION IN SECTION 40A(2)(B) OF THE ACT , THE SAID SECTION WOULD NOT APPLY TO CO-OPERATIVE SOCIETY. THE CO-OPERATIVE SOCIETIES AR E GOVERNED BY PRINCIPLES OF MUTUALITY AND DEDUCTIONS ARE PROVIDED U/S 80P OF TH E ACT ON FULFILLING OF THE PRESCRIBED CONDITIONS, WHILE THE ASSOCIATION OF PER SON IS NOT GOVERNED BY PRINCIPLE OF MUTUALITY. THE HONBLE BOMBAY HIGH COU RT HAS IN THE CASE OF CIT V. MANJARA SHETKARI SAHAKARI SAKHAR KARKHANA LIMITE D(SUPRA) HAS HELD THAT PROVISIONS OF SECTION 40A(2) OF THE ACT ARE NOT APP LICABLE TO CO-OPERATIVE SOCIETY . WHILE DECIDING THE AFORE-STATED QUESTION, THE HONBLE COURT RELIED ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT V. SHIVAMRUT DOODH UTPADAK SAHAKARI SANGH MARYADIT IN TAX APPEAL NO. 62 OF 1999 FILED BY REVENUE WHEREBY HONBLE BOMBAY HIGH COURT CONFIR MED THE DECISION OF THE TRIBUNAL AND HELD THAT SECTION 40A(2) OF THE AC T IS NOT APPLICABLE TO CO- OPERATIVE SOCIETY. THUS, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN AFORE-STATED CASES, WE HOLD THAT SECT ION 40A(2) OF THE ACT IS NOT ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 10 APPLICABLE TO CO-OPERATIVE SOCIETY AND THUS, THE AD DITIONS MADE BASED ON THE PREMISE THAT SECTION 40A(2) OF THE ACT IS APPLICABL E TO CO-OPERATIVE SOCIETY IS NOT SUSTAINABLE IN LAW AND HENCE IS ORDERED TO BE D ELETED. FURTHER, IT IS THE SAY OF THE ASSESSEE THAT TAX EFFECT IS NEUTRAL AND THERE IS NO LOSS TO THE REVENUE AS THE SAID SUBSIDIARY COMPANY SIL IS ALSO PAYING TAX AT THE SAME RATE AND HENCE NO PREJUDICE IS CAUSED TO THE REVENU E AS THE REVENUE HAS GOT DUE TAXES ALBEIT PAID BY SIL WHO IS SUBSIDIARY OF T HE ASSESSEE ON THE CHARGES RECEIVED FROM ASSESSEE. WE ORDER ACCORDINGLY AND TH IS GROUND IS DECIDED AGAINST REVENUE. 5. THE NEXT GRIEVANCE OF THE REVENUE IS WITH RESPEC T TO THE ALLOWING THE EXPENDITURE OF RS.61,76,025/- AS REVENUE EXPENDITUR E AGAINST CAPITAL EXPENDITURE WHEREBY IT WAS STATED THAT THE LEARNED CIT(A) ERRED IN NOT ACCEPTING THE ALLOCATION OF INTEREST EXPENDITURE TO WARDS PROPERTY CONSTRUCTION MADE BY THE ASSESSEE ITSELF OUT OF THE TOTAL INTERE ST PAID ON THE ENTIRE BORROWED FUNDS. IT WAS OBSERVED BY THE AO THAT VIDE REVISED RETURN OF INCOME FILED BY THE ASSESSEE, THE ASSESSEE HAS CLAIMED RS. 61,76,025/- WHICH REPRESENTS BORROWING COST WHICH HAD EARLIER BEEN CA PITALIZED BUT NOW IS CLAIMED AS REVENUE EXPENSES. IT WAS SUBMITTED BY TH E ASSESSEE THAT THE ASSESSEE IS CAPITALIZING THE COST OF BORROWINGS IN TERMS OF ACCOUNTING STANDARD AS -16 ISSUED BY THE ICAI IN RESPECT OF FU NDS UTILIZED FOR CONSTRUCTION OF OFFICE BUILDING AND THIS WAS ADDED TO THE CAPITAL WORK-IN- PROGRESS. IT WAS SUBMITTED THAT DUE TO CHANGE IN OP INION OF THE AUDITORS , THIS AMOUNT IS CLAIMED ON REVENUE ACCOUNT. THE AO REJECT ED THE CONTENTIONS OF THE ASSESSEE AS THE AMOUNT PERTAINED TO THE ACQUISI TION OF CAPITAL ASSET AND HENCE IS CAPITAL IN NATURE. THUS, THE AMOUNT WAS DI SALLOWED BY THE AO AND ADDED TO THE INCOME OF THE ASSESSEE BY THE AO . AGG RIEVED, THE ASSESSEE FILED FIRST APPEAL WITH LEARNED CIT(A) AND CLAIMED THAT T HE ASSESSEE HAS UTILIZED OWN FUNDS FOR CONSTRUCTION OF BUILDING AND NO BORRO WED FUNDS WERE UTILIZED FOR CONSTRUCTING THE BUILDING. THE ASSESSSEE SUBMIT TED THAT THE AO HAS NOT ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 11 CHALLENGED THIS CONTENTION OF THE ASSESSEE. THE ASS ESSEE HAS NOTIONALLY ALLOCATED THE INTEREST DEBITED BY THE ASSESSEE TO P ROFIT AND LOSS ACCOUNT TO THE CONSTRUCTION OF THE BUILDING ACCOUNT BUT IN THE REVISED RETURN OF INCOME FILED WITH THE REVENUE , THE SAME WERE CLAIMED AS A LLOWABLE EXPENDITURE WHICH WAS NOT ACCEPTED BY THE AO AND TO THE EXTENT INTEREST WAS CAPITALIZED , WERE NOT ALLOWED BY THE AO AS REVENUE EXPENDITURE. THE ASSESSEE REITERATED ITS SUBMISSIONS BEFORE LEARNED CIT(A) WHO ALLOWED T HE APPEAL OF THE ASSEESSEE AS THE AO HAS NOT GIVEN ANY FINDING THAT THE ASSESS EE HAS INFACT PAID ANY INTEREST TOWARDS THE FUNDS BORROWED FOR CONSTRUCTIO N OF THE BUILDING. IT WAS OBSERVED BY THE LEARNED CIT(A) THAT IT IS A NOTIONA L INTEREST WHICH WAS CAPITALIZED BY THE ASSESSEE WHILE THERE WAS ACTUALL Y NO BORROWED FUNDS UTILIZED BY THE ASSESSEE FOR THE PURPOSES OF CONSTR UCTION OF BUILDING WHICH COULD BE CAPITALIZED TO CONSTRUCTION COST OF THE BU ILDING AND HENCE LEARNED CIT(A) ALLOWED THE ENTIRE INTEREST CLAIMED BY THE A SSESSEE AS AN ALLOWABLE REVENUE EXPENDITURE AND THE ADDITIONS MADE BY THE AO WERE CONSEQUENTLY DELETED. AGGRIEVED, REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. IT IS THE SAY OF LEARNED DR THAT THE AO HAS RIGHTLY DISALLOWED INTER EST EXPENDITURE AS THE SAME WAS CAPITALIZED BY THE ASSESSEE IN ITS BOOKS O F ACCOUNTS TOWARDS THE COST OF CONSTRUCTION OF BUILDING. WHILE LEARNED COU NSEL FOR THE ASSESSEE RELIED ON THE ORDERS OF LEARNED CIT(A). THE LEARNED COUNSE L OF THE ASSESSEE WOULD SAY THAT BUILDING FUND AS HELD BY THE ASSESSEE AS ON 31 -03-2007 AS PER AUDITED FINANCIAL STATEMENTS IN ITS RESERVES AND SURPLUS IS TO THE TUNE OF RS. 113.91 CRORES, WHILE LAND AND BUILDING INCLUDING CAPITAL W ORK-IN-PROGRESS AS ON 31- 03-2007 IS TO THE TUNE OF RS. 98.73 CRORES AND HENC E IT WAS SUBMITTED THAT INTEREST FREE OWN FUNDS TOWARDS BUILDING FUND ARE M UCH MORE THAN THE INVESTMENT MADE BY THE ASSESSEE IN LAND AND BUILDIN G INCLUDING CAPITAL WORK- IN-PROGRESS. IT WAS FURTHER SUBMITTED THAT THERE WA S IN-FACT NO BORROWINGS MADE BY THE ASSESSEE FOR CONSTRUCTION OF BUILDING A ND NO INTEREST WAS PAID AND NO SUCH FINDING OF FACT HAS BEEN RECORDED BY TH E AUTHORITIES BELOW. IT WAS SUBMITTED THAT THE ASSESSEE DEBITED NOTIONAL INTERE ST OUT OF TOTAL INTEREST ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 12 INCURRED TOWARDS CAPITALIZING OF CONSTRUCTION OF BU ILDING AND AS ADVISED BY THE AUDITORS, THE ASSESSEE LATER FILED REVISED RETU RN OF INCOME WHEREBY THE SAID INTEREST WAS ALSO CLAIMED AS REVENUE EXPENDITU RE AS IN-FACT NO INTEREST WAS INCURRED TOWARDS CONSTRUCTION COST INCURRED BY THE ASSESSEE. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL ON RECORDS. WE HAVE OBSERVED THAT THE ASSESSEE HAS CON STRUCTED BUILDING AND TOTAL LAND AND BUILDING INCLUDING CAPITAL WORK-IN-P ROGRESS AS APPEARING IN AUDITED FINANCIAL STATEMENT AS PLACED IN FILE BY TH E ASSESSEE AS AT 31-03-2007 WAS RS. 98.73 CRORES WHILE THE BUILDING FUND HELD B Y THE ASSESSEE AS AT 31- 03-2007 IN ITS RESERVES AND SURPLUS IS RS. 113.91 C RORES , WHICH IS MUCH HIGHER THAN THE LAND AND BUILDING INCLUDING CAPITAL WORK-IN-PROGRESS HELD BY THE ASSESSEE. THERE IS NO FINDING OF FACT RECORDED BY THE REVENUE THAT BORROWED FUNDS WERE USED BY THE ASSESSEE, WHILE IT IS THE SAY OF THE ASSESSEE THAT NO BORROWED FUNDS WERE UTILIZED BY THE ASSESSE E FOR CONSTRUCTION OF BUILDING.THE ASSESSEE HAS DEBITED AND CAPITALIZED N OTIONAL INTEREST OF RS.61.76 LACS OUT OF TOTAL INTEREST INCURRED DURING THE YEAR , TOWARDS COST OF CONSTRUCTION IN ITS BOOKS OF ACCOUNTS KEEPING IN VI EW AS-16 ISSUED BY ICAI , WHILE LATER ON THE ADVISE OF THE AUDITORS SAME WAS CLAIMED AS REVENUE EXPENDITURE IN THE REVISED RETURN OF INCOME FILED W ITH THE REVENUE. IT IS ESTABLISHED PRINCIPLE THAT ENTRIES IN THE BOOKS OF ACCOUNTS ARE NOT DECISIVE OF THE NATURE AND CHARACTER OF EXPENSES. IT IS NOT MATERIAL AND RELEVANT HOW THE ASSESSEE TREATED THESE EXPENSES IN ITS BOOKS OF ACC OUNT BUT WHAT IS MATERIAL AND RELEVANT IS THE ALLOWABILITY OF THESE EXPENSES AS REVENUE EXPENSES AS PER PROVISIONS OF THE ACT . THE JUDGMENT OF HON'BLE SUP REME COURT IN THE CASE OF KEDARNATH JUTE MFG. CO. LTD. V. CIT [1971] 82 ITR 363 AND HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V. TRIVENI ENGG. & INDUSTRIES LTD. (2009) 181 TAXMAN 5 (DELHI) SUPPORT THE CONTENTIONS OF THE ASS ESSEE IN THIS REGARDS . THE TAXES ARE TO BE COLLECTED BY THE AUTHORITY OF L AW WHICH IS MANDATE OF ARTICLE 265 OF THE CONSTITUTION OF INDIA. ARTICLE 2 65 OF THE CONSTITUTION OF ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 13 INDIA READS THAT 'NO TAX SHALL BE LEVIED OR COLLECT ED EXCEPT BY THE AUTHORITY OF LAW.' IN TERMS OF THE ARTICLE 265 OF THE CONSTITUTI ON, TAX CAN BE LEVIED ONLY IF IT IS AUTHORIZED BY LAW. THE TAXING AUTHORITY CANNOT C OLLECT OR RETAIN TAX THAT IS NOT AUTHORIZED. ANY RETENTION OF TAX COLLECTED, WHI CH IS NOT OTHERWISE PAYABLE, WOULD BE ILLEGAL AND UNCONSTITUTIONAL. THE HON'BLE BOMBAY HIGH COURT IN BALMUKUND ACHARYA'S V.DCIT (2009) 310 ITR 310(BOM) HELD THAT TAX CAN BE COLLECTED ONLY AS PROVIDED UNDER THE ACT. IF ANY ASSESSEE, UNDER A MISTAKE, MISCONCEPTION OR ON NOT BEING PROPERLY INSTRUCTED I S OVER ASSESSED, THE AUTHORITIES UNDER THE ACT ARE REQUIRED TO ASSIST HI M AND ENSURE THAT ONLY LEGITIMATE TAXES DUE ARE COLLECTED. THE HON'BLE BOM BAY HIGH COURT IN NIRMALA L. MEHTA V. CIT (2004) 269 ITR 1(BOM.) HELD THAT THERE CANN OT BE ANY ESTOPPEL AGAINST THE STATUTE. ARTICLE 265 OF THE CONSTITUTIO N OF INDIA IN UNMISTAKABLE TERMS PROVIDES THAT NO TAX SHALL BE LEVIED OR COLLE CTED EXCEPT BY AUTHORITY OF LAW. ACQUIESCENCE CANNOT TAKE AWAY FROM A PARTY THE RELIEF THAT HE IS ENTITLED TO WHERE THE TAX IS LEVIED OR COLLECTED WITHOUT AUT HORITY OF LAW. CIRCULAR NO. 14(XL-35) OF 1955, DATED 11.4.1955 , ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES READS AS UNDER: 'OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ONE OF THEIR DUTIE S TO ASSIST A TAX PAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIMING AND SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SH OULD TAKE THE INITIATIVE IN GUIDING A TAX PAYER WHERE PROCEEDINGS OR OTHER P ARTICULARS BEFORE THEM INDICATE THAT SOME REFUND OR RELIEF IS DUE TO HIM. THIS ATTITUDE WOULD, IN THE LONG RUN, BENEFIT THE DEPARTMENT, FOR IT WOULD INSPIRE CONFIDENCE IN HIM THAT HE MAY BE SURE OF GETTING A SQUARE DEAL FROM THE DEPARTMENT. ALTHOUGH, THEREFORE, THE RESPONSIBILITY FOR CLAIMING REFUNDS AND RELIEFS RESTS WITH THE ASSESSEE ON WHOM IT IS I MPOSED BY LAW, OFFICERS SHOULD ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 14 ( A ) DRAW THEIR ATTENTION TO ANY REFUNDS OR RELIEFS TO W HICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY HAVE OMITTED TO CLA IM FOR SOME REASON OR OTHER; ( B ) FREELY ADVISE THEM WHEN APPROACHED BY THEM AS TO THEIR RIGHTS AND LIABILITIES AND AS TO THE PROCEDURE TO BE ADOPTED FOR CLAIMING REFUNDS AND RELIEFS'. A READING OF THE CIRCULAR SHOWS THAT A DUTY IS CAST UPON THE ASSESSING OFFICER TO ASSIST AND AID THE ASSESSEE IN THE MATTER OF TAXATI ON. THEY ARE OBLIGED TO ADVISE THE ASSESSEE AND GUIDE THEM AND NOT TO TAKE ADVANTAGE O F ANY ERROR OR MISTAKE COMMITTED BY THE ASSESSEE OR OF THEIR IGNORANCE. TH E FUNCTION OF THE ASSESSING OFFICER IS TO ADMINISTER THE STATUTE WITH SOLICITUD E FOR PUBLIC EXCHEQUER WITH AN INBUILT IDEA OF FAIRNESS TO TAXPAYERS., ACIT V. RAJESH JHAVERI STOCK BROKERS (P.) LTD'S. (2007) 291 ITR 500(SC). ONCE THE EXPENDITURE IS FOUND TO BE ALLOWABLE AS RE VENUE EXPENDITURE AS PER PROVISIONS OF THE ACT, THE SAME ARE TO BE ALLOWED A S REVENUE EXPENDITURE UNDER THE ACT WHILE COMPUTING INCOME CHARGEABLE TO TAX EVEN I F THE TAX-PAYER HAS GIVEN DIFFERENT TREATMENT IN ITS BOOKS OF ACCOUNT BY CAPI TALIZING THE SAME IN ITS BOOKS OF ACCOUNT INSTEAD OF DEBITING IT TO THE PROFIT AND LO SS ACCOUNT. THIS IS THE MANDATE OF THE ACT WHICH HAS TO BE FOLLOWED AS THE TAXES CAN O NLY BE COLLECTED BY THE AUTHORITY OF LAW. IN OUR CONSIDERED VIEW BASED ON OUR ABOVE D ISCUSSIONS AND REASONING AS SET- OUT ABOVE, THE ADDITION MADE BY THE A.O. IS NOT SUS TAINABLE KEEPING IN VIEW FACTUAL MATRIX OF THE CASE AND WE DONOT FIND ANY INFIRMITY IN THE ORDERS OF THE LEARNED CIT(A) WHICH WE AFFIRM/SUSTAIN AND REVENUE APPEAL I S DISMISSED ON THIS GROUND. WE ORDER ACCORDINGLY. 6. THIS DISPOSES OF THE APPEAL OF THE REVENUE IN IT A NO 8622/MUM/2010 FOR THE ASSESSMENT YEAR 2007-08 WHICH IS PARTLY ALLOWED AS INDICATED ABOVE. ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 15 7. NOW WE WILL TAKE UP THE ASSESSEES APPEAL IN ITA NO. 7738/MUM/2010 FOR THE ASSESSMENT YEAR 2007-08. 8. THE FIRST GRIEVANCE OF THE ASSESSEE IS WITH RESP ECT TO THE SUSTENANCE OF DISALLOWANCE U/S 14 A OF THE ACT TO THE TUNE OF RS. 3,55,370/- BY THE LEARNED CIT(A), THE DISALLOWANCE WORKED OUT WITH REFERENCE TO RULE 8D OF INCOME-TAX RULES, 1962. THE ASSESSEES COUNSEL HAS SUBMITTED THAT THE ASSES SEE DID NOT WISH TO PRESS THIS GROUND OF APPEAL AND PRAYED THAT THE SAME MAY BE DI SMISSED AS NOT PRESSED. THE LD DR HAS NOT OBJECTED TO THE DISMISSAL OF THE SAID GROUND OF APPEAL. HENCE, WE ORDER DISMISSAL OF GROUND NO.1 RAISED BY THE ASSESS EE IN MEMO OF APPEAL FILED WITH THE TRIBUNAL IN ITA NO. 7738/MUM/2010 AS NOT PRESS ED. WE ORDER ACCORDINGLY. 9. THE NEXT GRIEVANCE OF THE ASSESSEE IS WITH RESPE CT TO DISALLOWANCE U/S 40A(2) CONFIRMED BY THE LEARNED CIT(A) WHEN BOTH THE PAYER AND PAYEE WERE TAX PAYING ENTITIES AND NO TAX AVOIDANCE WAS CAUSED AND NO PRE JUDICE IS CAUSED TO REVENUE. FURTHER, WITHOUT PREJUDICE THE ASSESSEE HAS RAISED A GROUND THAT SECTION 40A(2) OF THE ACT IS NOT APPLICABLE TO THE CO-OPERATIVE SOCIE TY AND THE PAYMENT MADE TO SIL IS NEITHER EXCESSIVE NOR UNREASONABLE HAVING REGARD TO THE LEGITIMATE NEEDS OF THE BUSINESS OF THE ASSESSEE AND BENEFITS DERIVED THERE FROM. WE HAVE ADJUDICATED THIS GROUND WHILE ADJUDICATING REVENUES APPEAL IN ITA N O. 8622/MUM/2010 FOR ASSESSMENT YEAR 2007-08 IN THIS ORDER IN PRECEDING PARAS AND OUR DECISION IN ITA NO. 8622/MUM/2010 ON THIS GROUND SHALL APPLY MUTATI S MUTANDIS TO THIS ISSUE IN ASSESSEES APPEAL IN ITA NO. 7738/MUM/2010. WE ORDE R ACCORDINGLY. 10. THE NEXT GRIEVANCE OF THE ASSESSEE IS WITH RESP ECT TO LEARNED CIT(A) CONFIRMING THE DISALLOWANCE FOR DELAYED PF EMPLOYEES CONTRIBU TION TO PF AUTHORITIES TO THE TUNE OF RS.1,89,337/- WHEN IT WAS ADMITTEDLY PAID W ITHIN THE GRACE PERIOD AND IN ANY CASE PRIOR TO THE DUE DATE OF FILING OF RETURN OF INCOME AS PRESCRIBED U/S 139(1) OF THE ACT. IT IS THE ADMITTED AND UNDISPUTED POSIT ION BETWEEN THE RIVAL PARTIES THAT THERE WAS DELAY IN DEPOSIT OF EMPLOYEES CONTRIBUTI ON TO PF AUTHORITIES BY THE ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 16 ASSESSEE WHICH WAS NOT PAID WITHIN THE DUE DATE PRE SCRIBED BY PF AUTHORITIES BUT WERE PAID WITHIN GRACE PERIOD ALLOWED BY PF STATUTE AND IN ANY CASE, THE SAME WERE PAID PRIOR TO THE DUE DATE OF FILING OF RETURN OF I NCOME AS PRESCRIBED U/S. 139(1) OF THE ACT, WITH THE REVENUE. THE ISSUE IS NO MORE RES -INTEGRA AND IS SQUARELY COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. GHATGE PATIL TRANSPORTS LIMITED (2014) 368 ITR 749(BOM.) AND DE CISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V. ALOM EXTRUSIONS LIMITED (2009) 319 ITR 306(SC) AND HENCE THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSE E AND NO DISALLOWANCE U/S 43B OF THE ACT R.W.S. 2(24)(X) AND 36(1)(VA) OF THE ACT IS WARRANTED IN THE INSTANT CASE IN VIEW OF THE AFORE-STATED DECISIONS, AS THE ASSESSEE IN THE INSTANT CASE PAID THE EMPLOYEES CONTRIBUTION TOWARDS PF WITHIN GRACE PERI OD AS ALLOWED BY PF STATUTE AND IN ANY CASE THE EMPLOYEE CONTRIBUTION TO PF WAS DEP OSITED WITH PF AUTHORITIES BEFORE THE DUE DATE PRESCRIBED U/S 139(1) OF THE AC T FOR FILING OF THE RETURN OF INCOME WITH THE REVENUE. WE ORDER ACCORDINGLY. 11. THIS DISPOSES OF APPEAL FILED BY THE ASSESSEE I N ITA NO. 7738/MUM/2010 FOR ASSESSMENT YEAR 2007-08, WHICH IS PARTLY ALLOWED AS INDICATED ABOVE. 12. WE SHALL NOW TAKE UP APPEAL FILED BY THE REVENU E IN ITA NO 1140/MUM/2012 FOR THE ASSESSMENT YEAR 2008-09. 13. THE FIRST GRIEVANCE OF THE REVENUE IS WITH RESP ECT TO THE DECISION OF THE LEARNED CIT(A) IN RESTRICTING THE DISALLOWANCE MADE U/S 40A (2)(B) OF THE ACT IN DIRECTING THE AO TO ADOPT THE COST PER TRANSACTION AT RS. 3.60 .W E HAVE ALREADY ADJUDICATED THIS ISSUE WHILE DECIDING THE CROSS APPEALS FOR THE ASSE SSMENT YEAR 2007-08 IN PRECEDING PARAS OF THIS ORDER AND OUR DECISION FOR THE ASSESSMENT YEAR 2007-08 SHALL APPLY MUTATIS MUTANDIS TO THIS ISSUE IN REVEN UE APPEAL FOR ASSESSMENT YEAR 2008-09. WE ORDER ACCORDINGLY. 14. THE NEXT GRIEVANCE OF THE REVENUE IS WITH RESPE CT TO THE DECISION OF LEARNED CIT(A) IN NOT ACCEPTING THE ALLOCATION OF INTEREST EXPENDITURE TOWARDS PROPERTY CONSTRUCTION MADE BY THE ASSESSEE ITSELF OUT OF TOT AL INTEREST PAID ON THE ENTIRE ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 17 BORROWED FUNDS. WE HAVE ALSO ADJUDICATED THIS ISSUE WHILE DECIDING REVENUES APPEAL FOR ASSESSMENT YEAR 2007-08 IN ITA NO.8622/M UM/2010 IN PRECEDING PARAS OF THIS ORDER. OUR DECISION ON THIS ISSUE IN ITA NO 8622/MUM/2010 FOR ASSESSMENT YEAR 2007-08 SHALL APPLY MUTATIS MUTANDIS TO THIS I SSUE IN REVENUES APPEAL FOR ASSESSMENT YEAR 2008-09. WE ORDER ACCORDINGLY. 15. THIS DISPOSES OF THE REVENUES APPEAL IN ITA NO . 1140/MUM/2012 FOR ASSESSMENT YEAR 2008-09 WHICH IS PARTLY ALLOWED AS INDICATED ABOVE. 16. NOW WE SHALL TAKE UP ASSESSEES APPEAL IN ITA N O.694/MUM/2012 FOR ASSESSMENT YEAR 2008-09. 17. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LE ARNED CIT(A) IN CONFIRMING THE DISALLOWANCE U/S 14A OF THE ACT READ WITH RULE 8D O F INCOME-TAX RULES, 1962 TO THE TUNE OF RS. 3.89 CRORES AND NOT EXCLUDING THE INVES TMENTS WHICH DO NOT RESULTS IN EARNING TAX FREE INCOME , AS AGAINST EXEMPT INCOME OF RS. 3.60 CRORES. THE ASSESSEE EARNED TAX FREE DIVIDEND INCOME OF RS.3,60,83,071/- WHICH WAS CLAIMED EXEMPT FROM TAX. THE ASSESSEE ALLOCATED EXPENSES OF RS. 1, 64,97,856/- INCURRED FOR EARNING DIVIDEND INCOME . THE AO APPLIED RULE 8D OF INCOME- TAX RULES, 1962 AND MADE DISALLOWANCE OF RS.3,53,24,395/- U/R 8D(2)(II) OF INCOME-TAX RULES, 1962 AND RS.35,89,403/- U/R 8D(2)(III) OF INCOME-TAX RULES, 1962 , AGGREGATING TO RS. 3,89,13,798/-, AGAINST WHICH VOLUNTARY DISALLOWANCE MADE BY THE ASSESSEE OF RS. 1,64,97,856/- WAS REDUCED AND BALANCE RS.2,24,15,94 2/- WAS ADDED TO THE INCOME OF THE ASSESSEE. RULE 8D OF INCOME-TAX RULES, 1962 IS APPLICABLE FOR THE ASSESSMENT YEAR 2008-09 AND ONWARDS AS HELD BY HON BLE BOMBAY HIGH COURT IN GODREJ AND BOYCE MANUFACTURING COMPANY LTD.(SUPRA). THE AO SHALL COMPUTE DISALLOWANCE U/S 14A OF THE ACT WITH RESPECT TO EXP ENDITURE INCURRED IN RELATION TO EARNING OF EXEMPT INCOME HAVING REGARD TO THE ACCOU NTS OF THE ASSESSEE AS PER MANDATE OF SECTION 14A(2) OF THE ACT. THE PRIMARY O NUS IS ON THE ASSESSEE TO BRING ON RECORD DETAILS OF EXPENSES INCURRED IN RELATION TO EARNING OF EXEMPT INCOME AS ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 18 PROVIDED U/S 14A OF THE ACT HAVING REGARDS TO THE A CCOUNTS OF THE ASSESSEE. IN THE FAILURE THEREOF THE ASSESSEE TO DISCHARGE PRIMARY O NUS, THE AO SHALL RECORD SATISFACTION AND APPLY RULE 8D OF INCOME-TAX RULES, 1962 TO COMPUTE DISALLOWANCE U/S 14A OF THE ACT OF THE EXPENDITURE INCURRED IN R ELATION TO THE EARNING OF EXEMPT INCOME . WE ARE ALSO OF THE CONSIDERED VIEW, THAT STRATEGIC INVESTMENT MADE BY THE ASSESSEE IN ITS SUBSIDIARY SARASWAT INFOTECH LIMITE D AS WELL IN THE OTHER SECURITIES WHICH ARE CAPABLE OF YIELDING EXEMPT INCOME I.E. BY WAY OF DIVIDEND ETC. WHICH ARE EXEMPT FROM TAX SHALL BE INCLUDED WHILE COMPUTING D ISALLOWANCE U/S 14A OF THE ACT AS PER THE SCHEME OF THE ACT AS CONTAINED IN PROVIS IONS OF SECTION 14A OF THE ACT AS THE STATUTE DOES NOT GRANT ANY EXEMPTION TO THE STR ATEGIC INVESTMENTS WHICH ARE CAPABLE OF YIELDING EXEMPT INCOME TO BE EXCLUDED WH ILE COMPUTING DISALLOWANCE U/S 14A OF THE ACT AND HENCE THE INVESTMENT MADE BY THE ASSESSEE IN SUBSIDIARY COMPANY M/S SARASWAT INFOTECH LIMITED AND ALL OTHER SECURITIES WHICH ARE CAPABLE OF YIELDING EXEMPT INCOME BY WAY OF DIVIDEND ETC SH ALL BE INCLUDED FOR THE PURPOSES OF DISALLOWANCE OF EXPENDITURE INCURRED IN RELATION TO THE EARNING OF EXEMPT INCOME , AS STIPULATED U/S 14A OF THE ACT. OUR DECISION IS F ORTIFIED BY THE RECENT DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF UNITED BREWERIES LIMITED V. DCIT IN ITA NO. 419/2009 VIDE ORDERS DATED 31-05-2016 AND A LSO DECISION OF THE TRIBUNAL IN THE CASE OF ACIT V. UMA POLYMERS LIMITED IN ITA NO 5366/MUM/2012 AND CO NO. 234/MUM/2013 VIDE ORDERS DATED 30-09-2015. WE ARE O F THE CONSIDERED VIEW THAT THE MATTER NEED TO BE RESTORED BACK TO THE FILE OF THE AO FOR DE-NOVO DETERMINATION OF THE ISSUE ON MERITS IN ACCORDANCE WITH OUR DIREC TIONS IN THIS ORDER. NEEDLESS TO SAY PROPER AND ADEQUATE OPPORTUNITY OF HEARD SHALL BE PROVIDED BY THE AO TO THE ASSESSEE IN ACCORDANCE WITH THE PRINCIPLES OF NATUR AL JUSTICE IN ACCORDANCE WITH LAW. WE WOULD ALSO LIKE TO MAKE IT CLEAR THAT THE A O SHALL ALSO BE GUIDED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F CIT V. RELIANCE UTILITIES AND POWERS LIMITED (2009) 313 ITR 340 (BOM) AND ALSO DE CISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF HDFC BANK LIMITED V. DCIT (201 6) 383 ITR 529(BOM.) WHILE COMPUTING DISALLOWANCE OF INTEREST EXPENDITURE AND IF THE ASSESSEES OWN INTEREST- FREE FUNDS ARE MORE THAN THE INVESTMENTS IN THE SEC URITIES CAPABLE OF YIELDING ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 19 EXEMPT INCOME, PRESUMPTION WILL APPLY UNLESS REBUTT ED BY THE REVENUE THAT THE ASSESSEE HAS UTILIZED ITS OWN INTEREST-FREE FUNDS F OR MAKING INVESTMENT IN SECURITIES WHICH ARE CAPABLE OF YIELDING EXEMPT INCOME. WE ORD ER ACCORDINGLY. 18. THIS DISPOSES OF THE ASSESSEES APPEAL IN ITA N O 694/MUM/2012 FOR THE ASSESSMENT YEAR 2008-09 WHICH IS PARTLY ALLOWED AS INDICATED ABOVE. 19. WE SHALL NOW TAKE UP APPEAL OF THE REVENUE FOR ASSESSMENT YEAR 2009-10 IN ITA NO 5627/MUM/2013. 20. THE REVENUE IS AGGRIEVED BY THE DECISION OF THE LEARNED CIT(A) WHEREBY THE LEARNED CIT(A) HAS HELD THAT INVESTMENT IN SHARES O F SUBSIDIARY COMPANY IS NOT AN ASSET YIELDING TAX-FREE INCOME AND HAS TO BE TOTALL Y EXCLUDED FROM COMPUTATION OF DISALLOWANCE U/S. 14A OF THE ACT . FURTHER, REVENUE IS AGGRIEVED BY THE DECISION OF LEARNED CIT(A) IN NOT APPLYING SECTION 14A OF THE A CT R.W.R. 8D OF INCOME-TAX RULES, 1962 WITHOUT APPRECIATING THE FACT THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ AND BOYCE MANUFACTURING COMPANY LIMITED(S UPRA) HAS CATEGORICALLY HELD THAT SECTION 14A OF THE ACT R.W.R. 8D OF INCOME-TAX RULES, 1962 IS APPLICABLE FROM ASSESSMENT YEAR 2008-09. WE HAVE ALREADY ADJUDICATE D THIS ISSUE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 IN ITA NO. 694/MUM/2012 , OUR DECISIONS IN AFORE- STATED APPEALS SHALL APPLY MUTATIS MUTANDIS TO THE REVENUES APPEAL FOR THE ASSESSMENT YEAR 2009-10 IN ITA NO. 5627/MUM/2013. W E MADE IT CLEAR THAT ONLY INVESTMENTS WHICH ARE CAPABLE OF YIELDING TAX-FREE INCOME SHALL BE INCLUDED FOR DISALLOWANCE U/S 14A OF THE ACT AND ALSO STRATEGIC INVESTMENTS IN SECURITIES WHICH ARE CAPABLE OF YIELDING TAX-FREE INCOME ARE TO BE I NCLUDED WHILE COMPUTING DISALLOWANCE U/S 14A OF THE ACT, WHILE THE INVESTME NTS WHICH ARE CAPABLE OF YIELDING TAXABLE INCOME SHALL NOT BE INCLUDED IN CO MPUTING DISALLOWANCE U/S 14A OF THE ACT. RULE 8D OF INCOME-TAX RULES, 1962 IS APPLI CABLE W.E.F. 2008-09 AS HELD BY HONBLE BOMBAY HIGH COURT IN GODREJ AND BOYCE MANUF ACTURING COMPANY LIMITED(SUPRA) WHICH SHALL BE APPLIED BY THE AO ON LY AFTER DISALLOWANCE OF EXPENDITURE INCURRED IN RELATION TO EARNING OF EXEM PT INCOME COULD NOT BE WORKED ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 20 OUT HAVING REGARDS TO ACCOUNTS OF THE ASSESSEE IN A CCORDANCE WITH SECTION 14A(2) OF THE ACT AND THE ONUS IS ON THE ASSESSEE TO BRING ON RECORD ALL DETAILS CONNECTED THEREWITH. THIS DISPOSES THE GROUNDS RAISED IN REVE NUES APPEAL IN ITA NO.5627/MUM/2013 FOR ASSESSMENT YEAR 2009-10.WE ORD ER ACCORDINGLY. 21.THIS DISPOSES OF REVENUES APPEAL IN ITA NO 5627 /MUM/2013 FOR THE ASSESSMENT YEAR 2009-10 WHICH IS PARTLY ALLOWED AS INDICATED A BOVE. 22. WE SHALL NOW TAKE UP ASSESSEES APPEAL IN ITA N O.1/MUM/2014 FOR ASSESSMENT YEAR 2010-11. 23. THE FIRST GRIEVANCE OF THE ASSESSEE IS WITH RES PECT TO THE DISALLOWANCE U/S 14A OF THE ACT OF RS. 1.88 CRORES WITHOUT RECORDING SATISF ACTION THAT ASSESSEES CALCULATION OF SUCH DISALLOWANCE TO THE TUNE OF RS. 1.01 CRORES WAS NOT CORRECT. FURTHER, THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNE D CIT(A) IN NOT EXCLUDING INVESTMENT IN SUBSIDIARY COMPANY WHILE COMPUTING DI SALLOWANCE U/R 8D OF INCOME- TAX RULES, 1962. WE HAVE ALREADY ADJUDICATED THESE ISSUES IN PRECEDING PARAS WHILE ADJUDICATING APPEALS FOR ASSESSMENT YEAR 2008-09 AN D 2009-10. OUR DECISIONS IN THE AFORE-STATED APPEALS SHALL APPLY MUTATIS MUTAND IS TO THIS APPEAL. WE ORDER ACCORDINGLY. 24. THE NEXT GRIEVANCE OF THE ASSESSEE IS WITH RESP ECT TO THE DECISION OF LEARNED CIT(A) IN CONFIRMING THE LEVY OF INTEREST U/S. 234B AND 234C OF THE ACT BY THE AO, WITHOUT APPRECIATING THAT THERE WAS A SUDDEN SPURT IN ADVANCES AND RECOVERY IN MARCH 2010 , WHICH FACTORS COULD NOT AT ALL HAVE BE EN ANTICIPATED BY THE ASSESSEE WHILE MAKING ITS BONA-FIDE ESTIMATION OF ADVANCE TA X AND AS SUCH THERE WAS NO DEFAULT OR DEFERMENT OF ADVANCE TAX LIABILITY AT AL L , AND CONSEQUENTLY INTEREST U/S. 234B AND 234C OF THE ACT IS NOT LEVIABLE. THE CONTE NTION OF THE LEARNED COUNSEL FOR THE ASSESSEE IS THAT THE ASSESSEE RECEIVED ADVANCES IN THE MONTH OF MARCH 2010 AND HENCE THE ASSESSEE WAS NOT IN A POSITION TO EST IMATE ADVANCE TAX LIABILITY AS SUCH ADVANCES WERE RECEIVED ONLY IN MARCH 2010 .OUR ATTENTION IS DRAWN TO STATEMENT OF FACT FILED WHEREIN IT IS STATED IN S OF THAT THERE WAS A SUDDEN SPURT IN ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 21 ADVANCES AND RECOVERY IN MARCH 2010 AND THESE FACTO RS COULD NOT HAVE BEEN AT ALL ANTICIPATED BY THE ASSESSEE WHILE MAKING BONA-FIDE ESTIMATION OF ADVANCE TAX. THUS, IT WAS SUBMITTED THAT NO DEFAULT OR DEFERMENT WITH RESPECT TO ADVANCE TAX OBLIGATIONS OCCURRED AND THE AUTHORITIES BELOW ERRE D IN APPLYING PROVISIONS OF SECTION 234B AND 234C OF THE ACT IN MECHANICAL MANN ER. IT WAS PRAYED THAT THE AUTHORITIES BELOW MAY VERIFY THESE CONTENTIONS OF T HE ASSESSEE AND MATTER MAY BE REMANDED TO THE AUTHORITIES BELOW FOR CONDUCTING NE CESSARY VERIFICATIONS. THE LEARNED DR SUBMITTED THAT THESE CONTENTIONS OF THE ASSESSEE BEFORE THE TRIBUNAL NEED VERIFICATION. AFTER HEARING BOTH SIDES AND ON PERUSAL OF MATERIAL ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT THIS PLEA/CONTENTIO NS OF THE ASSESSEE THAT THERE WAS A SUDDEN SPURT IN ADVANCES IN THE MONTH OF MARCH 20 10 WHILE LED TO INCREASE IN ADVANCE TAX LIABILITY WHICH COULD NOT BE ANTICIPATE D WHILE ESTIMATING ADVANCE TAX LIABILITY AS PER PROVISIONS OF THE ACT NEED VERIFIC ATION BY THE AO AND HENCE WE ARE INCLINED TO SET ASIDE AND RESTORE THIS ISSUE TO THE FILE OF THE AO FOR DE-NOVO ADJUDICATION OF THE ISSUE ON MERITS IN ACCORDANCE W ITH LAW. NEEDLESS TO SAY THAT PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD SHAL L BE PROVIDED BY THE AO TO THE ASSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL J USTICE IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 25. THIS DISPOSES OF THE ASSESSEES APPEAL IN ITA N O 1/MUM/2014 FOR THE ASSESSMENT YEAR 2010-11 WHICH IS PARTLY ALLOWED AS INDICATED ABOVE. 26. IN THE RESULT ALL THE SIX APPEALS I.E. REVENUE APPEAL IN ITA NO. 8622/MUM/2010 FOR ASSESSMENT YEAR, ASSESSEES APPEA L IN ITA NO. 7738/MUM/2010 FOR ASSESSMENT YEAR 2007-08 , REVENUE APPEAL IN ITA NO. 1140/MUM/2012 FOR ASSESSMENT YEAR 2008-09, ASSESSEE S APPEAL IN ITA NO. 694/MUM/2012 FOR ASSESSMENT YEAR 2008-09, REVENUES APPEAL IN ITA NO. 5627/MUM/2013 FOR ASSESSMENT YEAR 2009-10 AND ASSES SEES APPEAL IN ITA NO. 1/MUM/2014 FOR ASSESSMENT YEAR 2010-11, ARE PARTLY ALLOWED AS INDICATED ABOVE. ITA 8622 & 7738/MUM/2010 , ITA 1140 & 694/MUM/ 2012 , ITA 5627/MUM/2013 & ITA 1/MUM/2014 22 ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2016. # $% &' 31.10-2016 ( ) SD/- SD/- (C.N. PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 31-10-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI E BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI