IL & FS Tamil Nadu Power Company Limited, CHENNAI V. ACIT, CHENNAI

ITA 881/CHNY/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7963 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 20-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Question of law; Capital receipt
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 143(1); 201; 251; 2(A)

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL , SMC C BENCH, CHENNAI . , ! BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.881/MDS/2015 ( / ASSESSMENT YEAR: 2010-11 M/S. IL&FS TAMIL NADU POWER COMPANY LIMITED, B BLOCK, NAVINS PRESIDUM, 4 TH FLOOR, 103, NELSON MANICKAM ROAD, AMINJIKARAI, CHENNAI 600029. VS THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE II(3), CHENNAI PAN: AABCF1176A ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI R. VIJAYARAGHAVAN, ADVOCATE /RESPONDENT BY : SHRI B. NAVEEN KUMAR, JCIT ! /DATE OF HEARING : 08.02.2017 '# ! /DATE OF PRONOUNCEMENT : 14.02.2017 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-II, CHE NNAI DATED 05.11.2014 IN ITA NO.1586/13-14 AND IT PERTAINS TO ASSESSMENT YEAR 2010-11. 2 I.T.A. NO.881/MDS/2015 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN HIS A PPEAL. HOWEVER THE CRUX OF THE ISSUE IS THAT THE LD. CIT(A) HAS ER RED IN CONFIRMING THE ORDER OF THE AO WHO HAD MADE ADDITION WITH RESPECT TO THE INTEREST RECEIVED UNDER THE HEAD INCOME FROM OTHER SOURCES , THOUGH IT WAS DIRECTLY CONNECTED WITH THE SETTING UP OF THE PROJE CT AND HENCE IT SHOULD GO TO REDUCE THE COST OF THE PROJECT. 3. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSESS EE IS A LIMITED COMPANY ENGAGED IN THE BUSINESS OF GENERATING ELECT RICITY, FILED ITS RETURN OF INCOME ON 27.09.2010 AND SUBSEQUENTLY, TH E SAME WAS REVISED ON 29.03.2012 DECLARING NIL INCOME. INITIA LLY, THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT, THEREAFTER THE CA SE WAS TAKEN UP FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED ON 26.12. 2012, WHEREIN THE LD. AO MADE ADDITION OF RS.45,60,454/- BEING THE IN TEREST RECEIVED ON FIXED DEPOSITS, THE SOURCE OF WHICH WAS CONTRIBUTIO N TO EQUITY CAPITAL. ON APPEAL, THE LD. CIT(A) ALSO CONFIRMED THE ORDER OF THE LD. AO BY AGREEING WITH HIS VIEWS. 4. BEFORE US, THE LD. AR MADE THE FOLLOWING SUBMISS IONS: 1.1 THE APPELLANT WAS INCORPORATED FOR SETTING UP A MEGA POWER PLANT AT CUDDALORE. DURING THE SUBJECT AY 2010-11, THE APPEL LANT WAS IN THE PROCESS OF SETTING UP THE MEGA POWER PLANT AT CUDDALORE. 3 I.T.A. NO.881/MDS/2015 1.2 THE APPELLANT HAD ENTERED INTO A RUPEE LOAN AGR EEMENT WITH CONSORTIUM OF BANKS TO RAISE FUNDS FOR THE PROJECT. THE SAID A GREEMENT MANDATED A PRECONDITION FOR FUNDING THE PROJECT. PER CLAUSE 5. 2(A) OF THE AGREEMENT, APPELLANT WAS MANDATED TO INFUSE EQUITY SHARE CAPIT AL OF 25% OF THE TOTAL EQUITY AND AS PER CLAUSE 5.2(G) OF THE AGREEMENT, T HE APPELLANT WAS ALSO MANDATED TO ACQUIRE MINIMUM LAND REQUIRED FOR COMME NCEMENT OF CONSTRUCTION ACTIVITY OF THE POWER PROJECT AS A CON DITION PRECEDENT TO INITIAL DISBURSEMENT OF LOAN. 1.3 FOR THIS PURPOSE, THE APPELLANT HAD RAISED SHAR E APPLICATION MONEY AMOUNTING TO RS.89 CRORES DURING THE SUBJECT AY 201 0-11 FOR THE PURPOSE OF PURCHASE OF LAND FOR SETTING UP THE POWER PROJECT A ND ALSO TO MEET THE AFORESAID PRECONDITION MANDATED IN THE CONSORTIUM AGREEMENT. 1.4 THE APPELLANT SUBMITS THAT IT REQUIRED HUGE EXT ENT OF LAND (AROUND 1180 ACRES). HOWEVER THE SAME WAS NOT AVAILABLE WITH ONE VENDOR/LANDLORD. THEREFORE, THE APPELLANT HAD TO ACQUIRE LANDS FROM NUMEROUS VENDORS/LANDLORDS AT DIFFERENT POINTS IN TIME. DURI NG THE SUBJECT AY 2010-11, THE APPELLANT ACQUIRED 218.4325 ACRES OF LAND. LATE R THE APPELLANT CONSOLIDATED AL LANDS ACQUIRED FOR SETTING UP THE M EGA POWER PLANT. 1.5 SINCE THE PROCESS OF ACQUISITION OF LAND WAS TA KING CONSIDERABLE TIME, A PORTION OF THE SAID SHARE APPLICATION MONEY AMOUNTI NG TO RS.51.25 CRORES WAS TEMPORARILY KEPT IN SHORT TERM DEPOSITS TO BE UTILI ZED FOR PURCHASE OF LAND AS AND WHEN NECESSARY. THE APPELLANT SUBMITS THAT A PO RTION OF ADVANCE WAS KEPT IN DEPOSITS SO THAT LIQUIDITY WAS ENSURED AND MONEY WOULD BE EASILY AVAILABLE FOR THE PURCHASE OF LAND FOR THE POWER PROJECT. 1.6 THE SHARE APPLICATION MONEY RECEIVED WAS INTERE ST FREE AND IT WAS INFUSED ONLY TO MEET THE MANDATORY PRECONDITION FOR SETTING UP THE PROJECT. THEREFORE, 4 I.T.A. NO.881/MDS/2015 THE INTEREST RECEIVED IS INEXTRICABLY AND DIRECTLY CONNECTED WITH SETTING UP OF POWER PROJECT AND AS SUCH THE SAME SHOULD GO TO RED UCE COST OF THE POWER PROJECT. 1.7 THE APPELLANT RELIES ON CHENNAI ITAT DECISION I N THE CASE OF DCLT VS M/S.CHENNAI NETWORK INFRASTRUCTURE PVT LTD. IN ITA. NO.1649/MDS/2015 AY 2012-13 DATED 9TH SEPTEMBER 2016 WHEREIN AT PARA 4. 4.3 IT HAS BEEN CATEGORICALLY HELD THAT '4.4.3 FROM THE ABOVE DECISIONS OF THE HON'BLE JURI SDICTIONAL HIGH COURT, IN THE CASE OF VGR FOUNDATIONS AND THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF CLT VS. BOKARO STEELS LTD., SUPRA, AND THE DECISION OF THE TRIBUNAL(SUPRA), IT IS EVIDENT THAT THE INTEREST RE CEIVED FROM ICDS THE SOURCE OF WHICH ARE FROM SHARE APPLICATION MONEY WHICH IS INT EREST FREE HAS TO BE SET OFF AGAINST THE PRE-OPERATIVE EXPENSES OF THE ASSESSEE BECAUSE THEY ARE INEXTRICABLY LINKED TO THE SETTING UP OF THE BUSINE SS OF THE ASSESSEE. SINCE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ON LY FOLLOWED THE DECISION OF THE ABOVE MENTIONED HIGHER JUDICIARIES WHILE ARR IVING AT HIS DECISION AND GIVEN RELIEF TO THE ASSESSEE, FOLLOWING THE SAME RA TIO, WE DO NOT FIND IT NECESSARY TO INTERFERE WITH HIS ORDER ON THIS ISSUE .' [EMPHASIS SUPPLIED]. 1.8 THE APPELLANT ALSO RELIES ON DELHI HIGH COURT D ECISION IN THE CASE OF INDIAN OIL PANIPAT POWER CONSORTIUM LTD VS ITO 315 ITR 255 WHEREIN AT PARA 5.2 IS IT SPECIFICALLY HELD THAT '5.2 IT IS CLEAR U PON A PERUSAL OF THE FACTS AS FOUND BY THE AUTHORITIES BELOW THAT THE FUNDS IN TH E FORM OF SHARE CAPITAL WERE INFUSED FOR A SPECIFIC PURPOSE OF ACQUIRING LAND AN D THE DEVELOPMENT OF INFRASTRUCTURE. THEREFORE, THE INTEREST EARNED ON F UNDS PRIMARILY BROUGHT FOR INFUSION IN THE BUSINESS COULD NOT HAVE BEEN CLASSI FIED AS INCOME FROM OTHER SOURCES. SINCE THE INCOME WAS EARNED IN A PERIOD PR IOR TO COMMENCEMENT OF BUSINESS IT WAS IN THE NATURE OF CAPITAL RECEIPT AN D HENCE WAS REQUIRED TO BE SET OFF AGAINST PRE-OPERATIVE EXPENSES. IN THE CASE OF TUTICORIN ALKALI CHEMICALS 5 I.T.A. NO.881/MDS/2015 (SUPRA) IT WAS FOUND BY THE AUTHORITIES THAT THE FU NDS AVAILABLE WITH THE ASSESSEE IN THAT CASE WERE 'SURPLUS' AND, THEREFORE , THE SUPREME COURT HELD THAT THE INTEREST EARNED ON SURPLUS FUNDS WOULD HAVE TO BE TREATED AS 'INCOME FROM OTHER SOURCES'. ON THE OTHER HAND IN BOKARO STEEL L TD. (SUPRA) WHERE THE ASSESSEE HAD EARNED INTEREST ON ADVANCE PAID TO CON TRACTORS DURING PRE- COMMENCEMENT PERIOD WAS FOUND TO BE 'INEXTRICABLY L INKED' TO THE SETTING UP OF THE PLANT OF THE ASSESSEE AND HENCE WAS HELD TO BE A CAPITAL RECEIPT WHICH WAS PERMITTED TO BE SET OFF AGAINST PRE-OPERATIVE EXPEN SES.' [EMPHASIS SUPPLIED]. 5. ON THE OTHER HAND, THE LD. DR VEHEMENTLY ARGUED IN SUPPORT OF THE ORDERS OF THE REVENUE AUTHORITIES AND PRAYED THAT T HE SAME MAY BE CONFIRMED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, WE FIND THAT T HE LD. AO DID NOT HAVE THE BENEFIT OF THE ORDER OF THE TRIBUNAL IN THE CAS E M/S. CHENNAI NETWORK INFRASTRUCTURE PVT. LTD. CITED SUPRA, WHEREIN THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. THE RELEVANT PORTION OF TH E ORDER OF THE TRIBUNAL IS EXTRACTED HEREIN BELOW FOR REFERENCE: 4.4.2 ON THE SECOND ISSUE ALSO THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) FOLLOWING THE DECISION OF THE HONBLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF VGR FOUNDATION CITED SUPRA HAS HELD THAT TH E ASSESSEE IS ENTITLED TO SET OFF THE INTEREST INCOME EARNED ON ICDS FROM THE PRE -OPERATIVE EXPENDITURE BECAUSE THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE COMPANY DO NOT FALL UNDER THE CATEGORY OF BORROWED FUND AND IS INE XTRICABLY LINKED WITH THE BUSINESS OF THE ASSESSEE. THE GIST OF THE RELEVANT PORTION OF THE LEARNED 6 I.T.A. NO.881/MDS/2015 COMMISSIONER OF INCOME TAX (APPEALS) IS REPRODUCED HEREIN BELOW FOR REFERENCE:- 4.2.4 WITH REGARD TO DENIAL OF SET OFF OF INTERES T ON ICDS FROM THE PREOPERATIVE EXPENDITURE ALSO, THE JURISDICTIONAL HIGH COURT DEC ISION IN THE CASE OF VGR FOUNDATIONS (SUPRA) RELIED ON BY THE APPELLANT CLEA RLY COVERS WHEREIN THE DECISION GOES IN FAVOUR OF THE APPELLANT. THE JURI SDICTIONAL HIGH COURT HAS CONFIRMED THE ORDER OF THE ITAT, CHENNAI WHICH HAS GIVEN ITS RULING IN ASSESSEE'S FAVOUR BY FOLLOWING ITS OWN EARLIER ORDE R. THE RELEVANT PARAS OF THE JURISDICTIONAL HIGH COURT ARE PRODUCED AS UNDER- 'LEARNED STANDING COUNSEL APPEARING FOR THE REVENUE SUBMITTED THAT THE ASSESSEE HAD SET OFF INTEREST EARNED, PRIOR TO THE COMMENCEMENT OF THE BUSINESS OPERATION, AGAINST THE EXPENSES. THE ASSES SEE IS WRONG IN SETTING OFF THE INTEREST PRIOR TO THE COMMENCEMENT OF THE B USINESS OPERATION AGAINST THE EXPENSES. THE INTEREST INCOME EARNED PR IOR TO THE COMMENCEMENT OF THE BUSINESS HAS TO BE ASSESSED UND ER THE HEAD 'INCOME FROM OTHER SOURCES'. HENCE, THE ASSESSING OFFICER I S RIGHT IN ASSESSING THE INTEREST INCOME UNDER THE HEAD 'INCOME FROM OTHER S OURCES'. HEARD COUNSEL. THE TRIBUNAL ALLOWED THE APPEALS BY FOLLOW ING ITS OWN EARLIER ORDER AND ACCEPTED THE CONTENTION OF THE ASSESSEE. THE TRIBUNAL, IN ITS ORDER, HELD AS FOLLOWS: 5. BEFORE ME LEARNED COUNSEL FOR THE ASSESSEE ALSO RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF CITV. KARNATAKA POWER CORPORATION [2001] 247 ITR 268, WHEREIN IT WAS HELD THAT INTERE ST RECEIPTS / HIRE CHARGES RECEIVED DURING PRE-PRODUCTION IS ON CAPITA L ACCOUNT. LEARNED COUNSEL FOR THE ASSESSEE ALSO RELIED ON VARIOUS DEC ISIONS IN SUPPORT OF HIS CASE. AT THE TIME OF HEARING HE HAD ALSO FILED A CO PY OF THE ORDER OF THIS TRIBUNAL IN I.T.A. NO. 1369/MDS/02, DATED NOVEMBER 11, 2002, WHEREIN ON IDENTICAL ISSUE THE TRIBUNAL CONSIDERING THE VARIOU S SUPREME COURT DECISIONS OBSERVED AND HELD AS UNDER: '4. THE SUPREME COURT IN TUTICORIN ALKALI CHEMICALS AND FERTILIZERS LTD. [1997] 227 ITR 172 WAS CONSIDERING INVESTMENT OF BO RROWED FUNDS PRIOR TO COMMENCEMENT OF BUSINESS AND HELD THAT THE INTER EST EARNED WAS TAXABLE. IN BOKARO STEEL LTD. [1999] 236 ITR 315, I T WAS A CASE OF A GOVERNMENT COMPANY WHICH DURING THE PERIOD OF CONST RUCTION OF THE PLANT 7 I.T.A. NO.881/MDS/2015 HAD ADVANCED MONIES TO CONTRACTORS ON WHICH IT WAS EARNING INTEREST, RECEIVED RENT FROM QUARTERS LET OUT TO EMPLOYEES, R ECEIVED HIRE CHARGES ON PLANT LET OUT TO CONTRACTORS AND RECEIVED ROYALTY O N STONES REMOVED FROM THE ASSESSEE'S LANDS. THE SUPREME COURT CONSIDERED ALL THESE ACTIVITIES TO BE INTRICATELY CONNECTED WITH THE CONSTRUCTION ACTI VITY AND ACCORDINGLY HELD THAT INTEREST RECEIVED, RENT RECEIVED, HIRE CH ARGES AND ROYALTY, ETC., WOULD BE REDUCED FROM THE COST OF THE ASSETS AND IT WOULD NOT BE TREATED AS INCOME. SIMILAR VIEW WAS EXPRESSED BY THE SUPREME C OURT IN THE CASE KAMAL CO- OPERATIVE SUGAR MILLS LTD. [2000] 243 ITR 2. IDENTICAL VIEW WAS ALSO TAKEN BY THE SUPREME COURT IN THE CASES OF BONGAIGAON REFINARY AND PETROCHEMICALS LTD. [2001] 251 ITR 329 AND KARN ATAKA POWER CORPORATION [2001] 247 ITR 268. 5. IN OUR OPINION, IN VIEW OF THE ABOVE CLEAR CUT R ULING BY THE SUPREME COURT IT IS NECESSARY TO GIVE A FINDING OF FACT IN REGARD TO MONIES THAT WERE KEPT IN DEPOSIT FROM OUT OF THE SHARE APPLICATION M ONIES. IN THE LIGHT OF THE SUPREME COURT DECISION IN TUTICORIN ALKALI CHEMICAL S AND FERTILIZERS LTD. [1997] 227 ITR 172, IT IS ONLY IN THE EVENT OF INTE REST EARNED FROM OUT OF DEPOSITS MADE FROM BORROWED FUNDS THAT IT WOULD BE IN THE NATURE OF INCOME. SHARE APPLICATION MONIES DO NOT FALL INTO T HE CATEGORY OF BORROWED FUNDS AND DO NOT INVOLVE PAYMENT OF INTERE ST. IN EFFECT SHARE APPLICATION MONIES, ETC., ARE GATHERED FOR BEING US ED IN SETTING UP OF AN INDUSTRY, UNIT, PURCHASE OF ASSETS, AND SO ON. TILL SUCH TIME THE MONEY IS REQUIRED FOR DEFERMENT OF VARIOUS ITEMS, OBVIOUSLY THE MONEY HAS TO BE KEPT IN DEPOSIT WITH A BANK. KEEPING THE MONEY IN C URRENT ACCOUNT WOULD NOT YIELD ANY INTEREST INCOME. IT CAN, THEREFORE, B E SEEN THAT IT IS DURING THE COURSE OF CONSTRUCTION THAT THE MONIES ARE KEPT IN DEPOSITS WITH THE BANK. IN THESE CIRCUMSTANCES IN THE LIGHT OF THE SUPREME COURT DECISIONS IN THE CASES OF BOKARO STEEL LTD. [1999] 236 ITR 315, KAMA L CO-OPERATIVE SUGAR MILLS LTD. [2000] 243 ITR 2 AND KARNATAKA POWER COR PORATION [2001] 247 ITR 268, THE CLAIM OF THE ASSESSEE IS REASONABL E AND DESERVES TO BE ACCEPTED. WE ACCORDINGLY UPHOLD THE CLAIM OF THE AS SESSEE AND DELETE THE ADDITION OF INTEREST MADE TO THE INCOME. THE LEGAL PLEA WAS NOT INSISTED UPON.'' FROM A READING OF THE ABOVE, IT IS SEEN THAT THE TR IBUNAL HAS FOLLOWED THE PRINCIPLES ENUNCIATED IN THE SUPREME COURT JUDGMENT S IN THE CASE OF CIT V. BOKARO STEEL LTD. [1999] 236 ITR 315 AND IN THE CAS E OF KARNATAKA POWER CORPORATION [2001] 247 ITR 268, AND CAME TO THE COR RECT CONCLUSION. THE REVENUE IS UNABLE TO GIVE ANY FURTHER MATERIALS OR EVIDENCE AND ALSO NOT ABLE 8 I.T.A. NO.881/MDS/2015 TO FURNISH INFORMATION AS TO WHETHER THEY HAVE FILE D ANY APPEAL AGAINST THEIR EARLIER ORDER OR NOT. UNDER THE CIRCUMSTANCES, WE DO NOT FIND ANY ERROR O R LEGAL INFIRMITY IN THE ORDER OF THE TRIBUNAL SO AS TO WARRANT INTERFERENCE . HENCE, NO SUBSTANTIAL QUESTION OF LAW ARISES FOR CONSIDERATION OF THIS CO URT AND ACCORDINGLY THE TAX CASES ARE DISMISSED. CONSEQUENTLY, M.P. NO.1 OF 200 7 IN T.C. (A) NO. 610 OF 2007 IS CLOSED. NO COSTS.' 4.2.5 IN VIEW OF THE ABOVE DISCUSSION, IT IS CLEAR THAT THE APPELLANT IS ENTITLED TO CLAIM DEDUCTION U/S 57(III) FROM THE INTEREST INCOM E EARNED FROM THE BANKS ON TERM DEPOSITS KEPT WITH THEM DURING PREOPERATIVE PE RIOD. SIMILARLY, THE APPELLANT IS ENTITLED TO SET OFF THE INTEREST INCOM E EARNED ON ICDS FROM THE PREOPERATIVE EXPENDITURE CLAIMED BY THE APPELLANT S INCE THE INTEREST EARNED FROM DEPOSITING THE SHARE APPLICATION MONEYS AS ICD S DO NOT FALL UNDER THE CATEGORY OF BORROWED FUNDS .AND DO NOT INVOLVE PAYM ENT OF INTEREST AND ARE INEXTRICABLY LINKED WITH THE BUSINESS OF THE APPELL ANT. IN THE RESULT, THE DISALLOWANCE MADE BY THE AO IS DIRECTED TO BE WITHD RAWN. THE GROUND IS ALLOWED. 4.4.3 FROM THE ABOVE DECISIONS OF THE HONBLE JU RISDICTIONAL HIGH COURT, IN THE CASE OF VGR FOUNDATIONS AND THE DECISION OF THE HON BLE APEX COURT IN THE CASE OF CIT VS. BOKARO STEELS LTD., SUPRA, AND THE DECI SION OF THE TRIBUNAL(SUPRA), IT IS EVIDENT THAT THE INTEREST RECEIVED FROM ICDS TH E SOURCE OF WHICH ARE FROM SHARE APPLICATION MONEY WHICH IS INTEREST FREE HAS TO BE SET OFF AGAINST THE PRE- OPERATIVE EXPENSES OF THE ASSESSEE BECAUSE THEY ARE INEXTRICABLY LINKED TO THE SETTING UP OF THE BUSINESS OF THE ASSESSEE. SINCE T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ONLY FOLLOWED THE DECISION OF THE ABOVE MENTIONED HIGHER JUDICIARIES WHILE ARRIVING AT HIS DECISION A ND GIVEN RELIEF TO THE ASSESSEE, FOLLOWING THE SAME RATIO, WE DO NOT FIND IT NECESSA RY TO INTERFERE WITH HIS ORDER ON THIS ISSUE. 9 I.T.A. NO.881/MDS/2015 7. THEREFORE, IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE CASE BACK TO THE FILE OF AO FOR FRESH CONSIDERATION IN ORDER TO ASCERTAIN THE FACTS OF THE CASE AND IF FOUND IDENTICAL, TO THE CASE DECIDE D BY THE TRIBUNAL CITED SUPRA DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE AND IF F OUND OTHERWISE, PASS APPROPRIATE ORDER IN ACCORDANCE WITH MERIT AND LAW. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON THE 14 TH FEBRUARY, 2017. SD/- ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER $% /CHENNAI, &' /DATED 14 TH FEBRUARY, 2017 JR. ' )* +* /COPY TO: 1. APPELLANT 2. RESPONDENT 3. , ( )/CIT(A) 4. , /CIT 5. *-. / /DR 6. .0 /GF.