The ACIT, Circle-1(2), Baroda V. FAG BEARINGS INDIA LIMITED, Baroda

ITA 947/AHD/2007

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2037 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 14-02-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 02-03-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S SOWRY WANSHI
• Keywords: Question of law; Difference of opinion; Reason to believe; Change of opinion; Set aside
• Section: 271(1)(c); 143(3); 142(1); 274; 251; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI A.N.PHAUJA, ACCOUNTANT MEMBER ITA NO.947/AHD/2007 & ITA NO.454/AHD/2008 ASSESSMENT YEARS: -1999-00 & 1997-98 DATE OF HEARING:14.2.11 DRAFTED:15.2.11 ACIT, CIRCLE-1(2), AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA V/S. M/S. FAG BEARINGS INDIA LTD., P.O. MANEJA, DIST. BARODA PAN NO.AAACF3357Q (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI MILIN MEHTA, AR REVENUE BY:- SHRI G.S. SOWRY WANSHI, DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THESE TWO APPEALS BY REVENUE ARE ARISING OUT OF TH E ORDER OF COMMISSIONER OF INCOME-TAX(APPEALS)-I, BARODA IN APPEAL NO.CAB/I -17, 106 / 06-07/05-06 OF DIFFERENT DATE I.E.12-12-2006 & 11-10-2007. THE ASS ESSMENTS WERE FRAMED BY THE DCIT, CIRCLE-1 & ACIT, CIRCLE1(2) BARODA U/S.143(3) R.W.S. 147OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE TH EIR DIFFERENT ORDERS DATED I.E. 03-03- 2004 AND 30-03-2005 FOR THE ASSESSMENT YEARS 1998-9 9 AND 1997-98 RESPECTIVELY. THE PENALTY UNDER DISPUTE WAS LEVIED BY ASSESSING O FFICER U/S.271(1) R.W.S 274 OF THE ACT VIDE HIS ORDER DATED 09-03-2006 FOR ASSESSM ENT YEAR 1999-00. FIRST WE WILL DEAL WITH THE REVENUES APPEAL IN ITA NO.947/AHD/2007. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) DELETING PENALTY LEVIED BY ASSESSING OFFICER U/S.27 1(1) (C) OF THE ACT FOR REDUCING EXCISE DUTY REFUND FROM BUSINESS PROFIT. FOR THIS, REVENUE HAS RAISED THE FOLLOWING EFFECTIVE GROUND NO.1-4 :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN CANCELLING THE PENALTY OF RS.35,00, 000/- IMPOSED BY THE ASSESSING OFFICER U/S.271(10(C) FOR WRONGLY REDUCIN G THE PROFIT BY THE AMOUNT ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 2 OF EXCISE DUTY REFUND OF RS.90,80,465/-, BY HOLDING THAT, IN THE CIRCUMSTANCES OF THE CASE, PENALTY WAS NOT EXIGIBLE. 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE MERE FACT THAT THE ASSESSEE HAD GIVEN A REMARK IN THE COMPUTATION OF INCOME THA T THE EXCISE DEPARTMENT HAD ISSUED A SHOW CAUSE NOTICE FOR WITHDRAWAL OF RE FUND DID NOT DETRACT FROM LEVIABILITY OF PENALTY. IT WAS SETTLED BY THE JURIS DICTIONAL HIGH COURT IN THE CASE OF CIT VS. VIDYAGURI NATVARLAL 288 ITR 91, 94, 97 (GU J) AND CIT VS. ABDUL GAFUR AHMED WAGMAR 199 ITR 827, 830-31 (GUJ) THAT THE MERE DISCLOSURE OF INCOME IN THE RETURN WITH THE CLAIM THAT IT IS E XEMPT FROM TAX DOES NOT SAVE AN ASSESSEE FROM PENALTY. 3. THE CIT(A) ERRED IN HOLDING THAT THE ASSESSEE HA D A REASONABLE GROUND TO FORM A VIEW THAT THE EXCISE DUTY REFUND WAS NOT INC LUDIBLE IN THE TOTAL INCOME AND THAT IT HAD BEEN ABLE TO SUBSTANTIATE ITS EXPLA NATION IN THIS REGARD AND PROVE THAT IT WAS BONA FIDE IN TERMS OF EXPLANATION-1 BELOW SECTION 271(1)(C). HERE, THE CIT(A) FAILED TO APPRECIATE THE RATIO OF B.A. BALSUBRAMANIAM AND BROTHERS CO. VS. CIT ; CIT VS. MUSSADILAL RAM BHARO SE 165 ITR 14, 20 (SC) AND K.P. MADHUSUDANAN VS. CIT 251 ITR 99 (SC) IN REGARD TO ONUS PLACED ON THE ASSESSEE BY THE SAID EXPLANATION. 4. THE CIT(A) FAILED TO APPRECIATE THAT THE SUPREME COURT, BY THEIR DECISION IN THE CASE OF POLYFLEX (INDIA) PVT. LTD. VS. CIT 257 ITR 343 (SC) , DID NOT CREATE A NEW LAW AND ONLY INTERPRETED THE PROVISION S OF SECTION 41(1) AS ALREADY EXISTED ON THE STATUTE BOOK ON THE DATE OF FILING OF RETURN, PROVIDING FOR TWO DIFFERENT SITUATIONS, NAMELY, OBTAINING OF ANY AMOUNT IN CASH OR OTHERWISE IN RESPECT OF LOSS OR EXPENDITURE ALLOWED, AND OBTA INING OF BENEFIT BY WAY OF REMISSION OR CESSATION, AND HENCE THE ASSESSEE COUL D NOT TAKE THE PLEA THAT, PRIOR TO THE PRONOUNCEMENT OF THIS DECISION, THE PO SITION OF LAW WAS DIFFERENT WHICH PERMITTED IT NOT TO TREAT THE EXCISE DUTY REF UND AS DEEMED PROFIT U/S.41(1). 3. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE-COMPANY HAS RECEIVED RE FUND OF RS.99,80,465/- FROM CENTRAL EXCISE DEPARTMENT PURSUANT TO ORDER OF CENT RAL EXCISE & GOLD (CONTROL), APPELLATE TRIBUNAL (CEGAT FOR SHORT), MUMBAI, WHERE BY THE APPELLATE AUTHORITY ALLOWED REFUND IN RESPECT OF MODVAT CREDIT ON GRIND ING MILLS. THE ASSESSEE ON RECEIPT OF THE ABOVE ORDER CLAIMED REFUND AND THE S AME WAS GRANTED AND THE ASSESSEE-COMPANY HAS CREDITED THIS SUM OF RS.97,80, 465/- IN PROFIT AND LOSS ACCOUNT UNDER THE HEAD OTHER INCOME AND CLAIMED T HE SAME AS NON-TAXABLE INCOME U/S.41(1) OF THE ACT IN THE RETURN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION. THE ASSESSEE-COMPANY CLAIMED THAT SU BSEQUENT TO RECEIPT OF ABOVE REFUND DY. COMMISSIONER OF CENTRAL EXCISE AND CUSTO MS DIVISION-II, CENTRAL EXCISE BUILDING, RACE COURSE, VADODARA ISSUED SHOW CAUSE N OTICE DATED 13-10-1999 ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 3 CLAIMING THAT WHY THE ABOVE EXCISE REFUND SHOULD NO T BE WITHDRAWN SINCE THE MATTER HAS NOT REACHED ITS FINALITY AND THE CENTRAL EXCISE DEPARTMENT AGITATED BEFORE HONBLE HIGH COURT. ACCORDINGLY, THE CENTRAL EXCISE DEPARTMENT PROPOSED TO WITHDRAW THE ABOVE REFUND GRANTED TO THE ASSESSEE-C OMPANY AND THE COPY OF SHOW- CAUSE NOTICE WAS FILED BEFORE LOWER AUTHORITIES. AC CORDINGLY, THE ASSESSEE-COMPANY CLAIMED THAT EXCISE DEPARTMENT IS FURTHER AGITATING THE MATTER IN APPELLATE AUTHORITY AND THE REFUND HAS NOT REACHED ITS FINALITY AND SAM E CANNOT BE TREATED AS TAXABLE U/S.41(1) OF THE ACT AND THE ASSESSEE-COMPANY HAS R IGHTLY DEDUCTED THE SAID SUM IN THE COMPUTATION OF INCOME FILED WITH RETURN OF INCO ME FOR THE YEAR UNDER CONSIDERATION. AS THE SAID SUM WAS CREDITED TO THE PROFIT AND LOSS ACCOUNT UNDER THE HEAD OTHER INCOME, THIS ADDITION WAS CONFIRMED BY CIT(A) IN QUANTUM APPEAL VIDE ORDER NO.CAB/III/128/04-05 DATED 24-09-2004 AND ASSESSEE WAS REQUIRED AS TO WH Y PENALTY U/S.271(1)(C) SHOULD NOT BE LEVIED VIDE LET TER DATED NO ACIT/CIR.1(2)/BRD/PEN/TB/05-06 DATED 10-10-2005. TH E ASSESSEE REPLIED TO THE LETTER THAT THE MATTER IS SUBJUDICE AND THE REFUND HAS NOT BECOME FINAL. HENCE, ASSESSEE CLAIMED DEDUCTION. THE ASSESSING OFFICER L EVIED THE PENALTY BY GIVING FOLLOWING FINDINGS AT PAGE-3 OF HIS PENALTY ORDER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSION MADE BY THE ASSESSEE. AS PER SECTION 5 OF THE I.T. ACT, TOTAL INCOME OF A PREVIO US YEAR INCLUDES ALL INCOME WHICH IS RECEIVED OR IS DEEMED TO BE RECEIVED IN IN DIA OR ACCRUE OR ARISES OR IS DEEMED TO BE ACCRUE OR ARISE TO THE ASSESSEE DURING THE PREVIOUS YEAR. IN THE ASSESSEES CASE, REFUND OF RS.99,80,465/- NOT ONLY ACCRUED BUT WAS ALSO RECEIVED BY THE ASSESSEE FROM CENTRAL EXCISE DEPART MENT PURSUANT TO ORDER RECEIVED FROM CENTRAL EXCISE & GOLD CONTROL APPELLA TE TRIBUNAL (CEGAT). THEREFORE, THE SAME WAS LIABLE TO BE INCLUDED IN TH E ASSESSEES TOTAL INCOME OF THE PREVIOUS YEAR RELEVANT TO A.Y. 1999-2000. TH E INCOME IS TAXABLE ON THE BASIS OF ACCRUAL OR RECEIPT AS PER THE SYSTEM OF AC COUNTING FOLLOWED BY THE ASSESSEE. THE ASSESSEE FOLLOWS MERCANTILE SYSTEM OF ACCOUNTING. IN THE CASE OF POLYFLEX (INDIA) PVT. LTD. V. CIT 177 CTR 93 (SC ), THE HONBLE SUPREME COURT HELD THAT THE EXCISE DUTY REFUND IS TAXABLE I N THE YEAR OF RECEIPT IRRESPECTIVE OF THE FACT THAT THE SPECIAL LEAVE PET ITION WAS FILED BY THE EXCISE DEPARTMENT. THE REFUND WAS ACTUALLY RECEIVED BY THE ASSESSEE AND THE ASSESSEE COULD NOT PROVE THAT THE SAID REFUND HAS B EEN RECOVERED BY THE CENTRAL EXCISE DEPARTMENT. FURTHER THE ASSESSEE ITS ELF HAS MENTIONED IN ITS SUBMISSION THAT THE CLAIMS OF THE ASSESSING OFFICER ARE ALTHOUGH V ALID FOR MAKING ADDITIONS UNDER ASSESSMENT . THESE FACTS INDICATE THAT THERE IS CONCEALMENT OF INCOME/FURNISHING INACCURATE PARTICU LARS OF INCOME BY THE ASSESSEE TO THAT EXTENT. 4. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT( A). THE CIT(A) DELETED PENALTY VIDE PARA-8 OF HIS APPELLATE ORDER AS UNDER:- ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 4 8. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND PERUSED THE CASE LAW RELIED UPON BY THE ASSESSING OFFICER AS WELL AS THE APPELLANT. THE BASIC FACTS RELEVANT FOR CONSIDERATION OF THE ISSUE ARE VERY BR IEFLY SUMMARIZED AS UNDER: (I) THE RETURN OF INCOME WAS FILED ON 30-12-1999. T HE APPELLANT RECORDED ON THE RETURN OF INCOME 'REFUND OF EXCISE DUTY CREDITED PROFIT & LOSS ACCOUNT AS THE REFUND IS NOT FINAL AS /' EXCISE DEPT. HAS ISSUED SHOW CAUSE NOTICE FOR THE WITHDRAWAL OF REFU ND AND MATTER IS AGITATED BEFORE APPELLATE AUTHORITY'. THE ASSESSING OFFICER ISSUED NOTICE U/S. 142(1) ON 25-1-2002 REQUIRING THE APPELLANT TO SHOW CAUSE AS TO WHY THE REFUND RE CEIVED FROM THE EXCISE DEPT. HAD BEEN EXCLUDED FROM THE INCOME ON T HE GROUND THAT NOTICE FOR THE WITHDRAWAL OF THAT REFUND WAS ISSUED BY THE EXCISE AUTHORITIES. IT WAS ASKED AS TO WHY THE SAME BE NOT ADDED TO THE TOTAL INCOME. (II) IT IS CLEAR FROM THE NOTICE U/S. 142(1) THAT T HE APPELLANT HAD RECORDED ON THE RETURN OF INCOME BOTH THE FACT AND THE REASO N FOR NOT INCLUDING THE EXCISE REFUND IN ITS TOTAL INCOME. (III) IT IS CLEAR FROM THIS THAT THE APPELLANT DID NOT CONCEAL THE FACTS WITH REGARD TO THE EXCISE REFUND AND INSTEAD DISCLOSED A LL THE FACTS CLEARLY. IN OTHER WORDS, THE APPELLANT HAS DISCLOSED ALL FAC TS RELATING TO THE EXCISE REFUND AND HAS DISCLOSED ALL FACTS MATERIAL TO THE COMPUTATION OF INCOME. (IV) IN ITS REPLY DATED 22-2-2002 TO THE SHOW CAUSE NOTICE U/S. 142(1) DATED 25-1-2002, THE APPELLANT GAVE ALL THE BASIC F ACTS WITH DETAILS AND MENTIONED THE GROUND FOR WHICH IT DID NOT INCLUDE T HE SAID AMOUNT IN ITS COMPUTATION AFTER HAVING IT SHOWN AND INCLUDED IN I TS P & L ACCOUNT. THE APPELLANT WAS OF THE BELIEF THAT THE ABOVE AMOU NT IS NOT TAXABLE BECAUSE SUBSEQUENT TO THE RECEIPT OF ABOVE REFUND, THE DEPUTY COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, DIVISION II, CENTRAL EXCISE BUILDING, RACE COURSE, BARODA HAD ISSUED SHOW CAUSE NOTICE DATED 13-10-99 STATING THAT WHY SAID REFUND SHOULD NOT BE WITHDRAWN SINCE MATTER HAD NOT REACHED FINALITY AS THE CENTRAL EXCI SE DEPARTMENT WAS AGITATING THE MATTER IN FURTHER APPEAL. SINCE THE A PPELLANT RECEIVED THE SHOW CAUSE NOTICE FROM THE CENTRAL EXCISE DEPARTMEN T, IT TOOK A VIEW THAT THE SAID AMOUNT THOUGH CREDITED TO THE PROFIT AND LOSS ACCOUNT SHOULD NOT BE CONSIDERED WHILE COMPUTING THE TOTAL INCOME FOR THE PURPOSE OF FILING OF RETURN OF INCOME AS THE SAME W AS SUBJUDICE. IT RELIED UPON THE DECISION OF THE JURISDICTIONAL HON' BLE GUJARAT HIGH COURT. IT SHOWS THAT THE APPELLANT MADE ITS INTENTION VERY CLEAR. (V) THE ASSESSMENT U/S. 143(3) OF THE ACT WAS COMPL ETED IN THE CASE OF THE APPELLANT ON 28-3-2002 WHEREIN THE ASSESSING OF FICER ACCEPTED THE APPELLANT'S VIEW AND DID NOT INCLUDE THE SAID AMOUN T OF REFUND IN THE TOTAL INCOME. ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 5 (VI) AGAINST THE ORDER U/S. 143(3) THE ASSESSEE FIL ED APPEAL BEFORE THE CIT(A) AND THE CIT(A) DECIDED THE MATTER ON 25-10-2 002. SUBSEQUENT TO THE ORDER OF CIT(A) THE CIT VIDE ORDER U/S. 263 SET ASIDE THE ORDER OF THE AO U/S. 143(3) FOR THE PURPOSE OF DETERMINING T HE TAXABILITY OF EXCISE REFUND OF RS. 99,80,465 BY PLACING RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF POLYFLEX (INDI A) (SUPRA) WHICH WAS RENDERED SUBSEQUENT TO THE DATE OF FILING OF TH E RETURN OF INCOME IN QUESTION AND THE DATE OF ORIGINAL ASSESSMENT U/S. 1 43(3) OF THE ACT. (VII) THE AO VIDE ORDER U/S. 143(3) RWS 263 DATED 3-3-2004 ADDED THE ABOVE AMOUNT OF EXCISE REFUND AND INCREASED THE ASS ESSED INCOME TO THAT EXTENT; (VIII) IT WOULD BE SEEN THAT THE ISSUE WHETHER THE REFUND RECEIVED UNDER THE GIVEN FACTS AND CIRCUMSTANCES WOULD BE INCLUDIB LE IN THE TOTAL INCOME WAS CLEARLY DEBATABLE AND THUS, THE ISSUE IS PURELY A QUESTION OF LAW. THE ASSESSING OFFICER WHILE LEVYING PENAL TY HAS OBSERVED THAT WHILE DELIVERING THE JUDGMENT IN THE CASE POLYFLEX INDIA (SUPRA), THE SUPREME COURT HAD FOLLOWED ITS EARLIER JUDGMENT IN THE CASE OF TH IRUMALAISWAMY NAIDU (SUPRA) MEANING THEREBY THAT THE VIEW ADOPTED BY HI M WAS IN EXISTENCE EVEN WHEN THE RETURN OF INCOME WAS FILED MEANING THEREBY THAT THE APPELLANT SHOULD HAVE FOLLOWED THIS VIEW EXPRESSED BY THE SUP REME COURT AND INCLUDED THE EXCISE REFUND IN ITS TOTAL INCOME. AS AGAINST T HIS, THE APPELLANT HAS ARGUED THAT THIS CASE DID NOT DEAL WITH THE CONCEPT OF REMISSION IN RESPECT OF DISPUTED REFUNDS. THE DISTINCTION BETWEEN THE REM ISSION OF LIABILITY AND OBTAINING OF CASH BENEFIT WAS BROUGHT IN FOR THE FI RST TIME IN THE INTERPRETATION OF SEC. 41(1) THROUGH THE DECISION OF POLYFLEX (SUP RA). FROM THIS THE APPELLANT ARGUED THAT IT CANNOT BE SAID THAT THE SUPREME COUR T REITERATED ITS EARLIER VIEW IN THE POLYFLEX (SUPRA) CASE. THE APPELLANT HAS ALS O REFERRED TO THE GUJARAT HIGH COURT DECISION IN THE CASE OF VISNAGAR TALUKA AUDYGIK SAHAKARI MANDLI LTD., V. C1T 244 ITR 626 WHEREIN IT WAS OBSERVED THAT IN ALL SITUATIONS FALLING U/S. 41(1) THE TEST WHETHER THERE WAS REMIS SION OR CESSATION OF TRADING LIABILITY HAS TO BE APPLIED AND, THEREFORE, CONCLUD ED THAT EVEN IF THE AMOUNT OF REFUND IS RECEIVED, SEC. 41(1) CANNOT BE INVOKED SO LONG AS THERE WAS NO FINAL DECISION ON THE QUESTION OF LEGALITY OF LEVY. FROM THE ABOVE DISCUSSION, IT IS SEEN THAT THE APPE LLANT HAD A REASONABLE GROUND TO FORM ITS VIEW THAT THE EXCISE REFUND WAS NOT INCLUDIBLE IN THE TOTAL INCOME. SUCH A VIEW MAY ULTIMATELY TURNOUT TO INCOR RECT, IS ANOTHER MATTER. MOREOVER, IT IS ALSO OBSERVED FROM ABOVE THAT THE A PPELLANT HAS OFFERED AN EXPLANATION FOR NOT INCLUDING THE EXCISE REFUND IN THE COMPUTATION OF HIS TOTAL INCOME AND, HAS ALSO BEEN ABLE TO SUBSTANTIATE THE EXPLANATION OFFERED BY IT. FURTHER, IT IS ALSO OBSERVED THAT THE APPELLANT HAS NOT FAILED TO SHOW THAT IS EXPLANATION IS BONAFIDE. IN FACT, IT HAS DEMONSTRAT ED THAT THE EXPLANATION FURNISHED BY IT IS BONAFIDE AND THIS HAS BEEN DONE BY THE APPELLANT BY ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 6 DISCLOSING ALL FACTS RELATING TO THE EXCISE REFUND AND DISCLOSING ALL FACTS MATERIAL TO THE COMPUTATION OF INCOME. IT IS FURTHER OBSERVED THAT THE DECISION IN THE CAS E OF THIRUMALAISWAMY NAIDU (SUPRA) DELIVERED BY THE SUPREME COURT WAS IN EXIST ENCE WHEN THE ASSESSING OFFICER CONSIDERED THE ISSUE AT THE TIME ORIGINAL A SSESSMENT ON 28-3-2002 BUT THE ASSESSING OFFICER DID NOT HOLD IT AGAINST THE A PPELLANT. THEREFORE, IT CANNOT BE ARGUED THAT THE APPELLANT SHOULD NOT HAVE EXCLUD ED THE EXCISE REFUND FROM THE TOTAL INCOME IN ITS COMPUTATION AT THE TIME OF FILING OF THE RETURN BECAUSE IF THE APPELLANT DID NOT FOLLOW IT, THEN, THE ASSESSIN G OFFICER ALSO DID NOT APPLY IT. IN FACT, THERE WAS CONVERGENCE OF OPINION BETWEEN THE ASSESSING OFFICER AND THE APPELLANT. IT WAS SUBSEQU ENTLY THAT THE POLYFLEX JUDGMENT PROMPTED THE DEPT. TO OPEN THE DEBATE IN T HIS CASE. THIS COULD, AT BEST, BE ARGUED AS A DEBATABLE ISSUE. THE VIEW HELD BY THE HON'BIE GUJARAT HIGH COURT IN THE CASE OF VISNAGAR TALUKA (SUPRA) A ND BHARAT IRON AND STEEL INDUSTRIES (SUPRA) (FULL BENCH) WAS NOT APPROVED BY THE HON'BIE SUPREME COURT IN THE CASE OF POLYFLEX INDIA (SUPRA). CLEARL Y, THE ISSUE WAS DEBATABLE. AND, PENALTY FOR CONCEALMENT CANNOT BE LEVIED ON A DEBATABLE LEGAL ISSUE. THE APPELLANT HAS ALSO RELIED UPON THE DECISION IN THE CASES OF DURGA KAMAL RICE (SUPRA)/ NATIONAL TEXTILE (SUPRA) AND P.K. NAR AYAN (SUPRA) IN THIS BEHALF. UNDER THE CIRCUMSTANCES, THE APPELLANT CANNOT BE HE LD GUILTY OF EITHER CONCEALMENT OF INCOME OR OF FURNISHING INACCURATE P ARTICULAR INCOME MUCH LESS DELIBERATE AND CONSCIOUS CONCEALMENT OR WILLFU L ATTEMPT AT FURNISHING INACCURATE PARTICULARS OF INCOME. AS A RESULT, IT I S HELD THAT THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 271(L)(C) FOR 'CONCEA LMENT OF INCOME /FURNISHING OF INACCURATE PARTICULARS OF INCOME' IS NOT EXIGIBL E IN THE GIVEN FACTS AND CIRCUMSTANCES OF THIS CASE. THE PENALTY LEVIED OF R S.35,00,000/- IS CANCELLED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSEES CHRONOLOGICAL EVENTS ARE AS UNDER:- ORDER OF CUSTOM, EXCISE & GOLD (CONTROL) APPELLATE TRIBUNAL 22-10-98 ORDER ISSUING REFUND 5-5-99 ACTUAL REFUND RECEIVED 11-5-99 SHOW CAUSE NOTICE FROM CENTRAL EXCISE DEPARTMENT FO R WITHDRAWING THE REFUND RECEIVED ON 13-10-99 RETURN OF INCOME FILED ON 30-12-99 NOTICE OF AO U/S.142(1) [WITH REGARD TO TAXABILITY OF EXCISE REFUND] 25-1-2002 REPLY FILED BY THE ASSESSEE IN PURSUANCE OF NOTICE U/S.142(1) 22-2-2002 DECISION OF CIT V. BHARAT IRON & STEEL INDUSTRIES R EPORTED IN 199 ITR 67 (GUJ) (FB) RENDERED DON 28-1-92 REGULAR ASSESSMENT U/S.143(3) PASSED ON 28-3-2002 ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 7 DECISION OF POLYFLEX (INDIA) PVT. LTD. V CIT RENDE RED ON 6-9-2002 SHOW CAUSE FROM CIT U/S.263 17-12-2003 REPLY TO NOTICE U/S.263 26-12-2003 ORDER U/S.263 PASSED BY CIT 16-1-2004 ORDER PASSED BY AO U/S.143(3) RWS 263 3-3-2004 ORDER PASSED BY CIT(A) AGAINST ORDER OF AO U/S.143( 3) RWS 263 24-9-2004 WE FURTHER FIND THAT ASSESSEE IN ITS RETURN OF INCO ME HAS RECORDED THE FOLLOWING EXPRESSIONS:- REFUND OF EXCISE DUTY CREDITED TO PROFIT & LOSS AC COUNT EXCLUDED AS THE REFUND IS NOT FINAL AS EXCISE DEPARTMENT HAS ISSUED SHOW CAUSE NOTICE FOR WITHDRAWAL OF REFUND AND THE MATTER IS AGITATED BEF ORE THE APPELLATE AUTHORITY. WE FIND THAT AT THE TIME OF FILING OF RETURN OF INC OME THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WAS AVAILABLE WHEREIN THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE AND BASED ON THE SAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, THE ASSESSEE CLAIMED THE EXCISE REFUND AS NOT TAXAB LE AND RECORDED ITS INTENTION ON THE FACE OF THE RETURN IN CLEAR AND CATEGORICAL TER MS. WE FURTHER FIND THAT THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F POLYFLEX (INDIA) PVT. LTD. V. CIT 177 CTR 93 (SC) WAS DELIVERED MUCH AFTER THE FILING OF THE RETURN OF INCOME AND ACCORDINGLY THE ASSESSEE COULD NOT CONSIDERED THIS JUDGMENT AT THE TIME OF FILING OF THE RETURN. AT THE TIME OF THE ORIGINAL ASSESSMENT, THE ASSESSING OFFICER HAD ACCEPTED ITS ARGUMENT AND HAD NOT MADE ANY ADDITION . IT WAS CHANGE OF OPINION AND A DIFFERENT VIEW WAS BEING ADOPTED BY THE ASSESSING OFFICER BASED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF POLYFLEX(INDIA ) PVT. LTD.. THE ASSESSEE ALSO DISTINGUISHED THE JUDGMENT OF THIRUMALAISWAMY NAIDY & SONS 230 ITR 534 (SC) BY STATING THAT THE DECISION DID NOT DEAL WITH THE CON CEPT OF REMISSIONS IN RESPECT OF THE DISPUTED REFUND AND IT WAS FOR THE FIRST TIME T HAT IN THE CASE OF POLYFLEX (INDIA) PVT. LTD. (SUPRA) AND HONBLE APEX COURT DIVIDED THE PROVISI ONS OF SECTION 41(1) OF THE ACT INTO TWO PARTS I.E REMISSION AND OBTAINING CASH. TH E ASSESSEE EMPHASIZED THAT AT NO TIME IN THE PAST THIS VIEW HAD BEEN EXPRESSED OR WA S PREVALENT. WE FIND THAT THE ASSESSEE HAD MADE ITS INTENTION VERY CLEAR ON THE R ETURN OF THE INCOME SO THAT IT COULD NOT BE BLAMED FOR FILING INACCURATE PARTICULA RS OF INCOME OR FOR CONCEALMENT OF INCOME. MOREOVER, IT WAS ONLY FROM THE INFORMATION MADE AVAILABLE BY THE ASSESSEE ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 8 IN ITS RETURN OF INCOME THAT THE AO VIDE HIS ORDER U/S.143(3) R.W.S 263 OF THE ACT TOOK A DIFFERENT VIEW IN THE MATTER WHICH WAS AT VARIANC E WITH THE VIEW TAKEN BY THE AO AT THE TIME OF PASSING THE ORIGINAL ASSESSMENT ORDER. AS REGARDS TO THE FACTS AVAILABLE IN THE RETURN OF INCOME FILED BY THE ASSESSEE AND I T HAS NOT CONCEALED ITS PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF IN COME AND WE ARE OF THE VIEW THAT THIS ISSUE HAS BEEN CONSIDERED BY DECISION OF HON BLE APEX COURT IN THE CASE OF CIT V. RELIANCE PETROPRODUCTS PVT. LTD. (2010) 322 ITR 174 (SC), WHEREIN THE HONBLE APEX COURT HAS HELD :- WE ARE NOT CONCERNED IN THE PRESENT CASE WITH THE MENS REA. HOWEVER, WE HAVE TO ONLY SEE AS TO WHETHER IN THIS CASE, AS A M ATTER OF FACT, THE ASSESSEE HAS GIVEN INACCURATE PARTICULARS. IN WEBSTERS DICTIONARY, THE WORD INACCURATE HAS BEEN DEFINED AS: NOT ACCURATE, NOT EXACT OR CORRECT ; NOT ACCORDING TO TRUTH ERRONEOUS AS AN INACCURATE STATEMENT, COPY OR TRANSCRIPT. WE HAVE ALREADY SEEN THE MEANING OF THE WORD PARTI CULARS IN THE EARLIER PART OF THIS JUDGMENT. READING THE WORDS IN CONJUNCTION, THEY MUST MEAN THE DETAILS SUPPLIED IN THE RETURN, WHICH ARE NOT ACCUR ATE, NOT EXACT OR CORRECT, NOT ACCORDING TO TRUTH OR ERRONEOUS. WE MUST HASTEN TO ADD HERE THAT IN THIS CASE, THERE IS NO FINDING THAT ANY DETAILS SUPPLIED BY TH E ASSESSEE IN ITS RETURN WERE FOUND TO BE INCORRECT OR ERRONEOUS OR FALSE. SUCH N OT BEING THE CASE, THERE WOULD BE NO QUESTION OF INVITING THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. A MERE MAKING OF THE CLAIM, WHICH IS NOT SUSTAINABL E IN LAW, BY ITSELF, WILL NOT AMOUNT TO FURNISHING INACCURATE PARTICULARS REGARDI NG THE INCOME OF THE ASSESSEE. SUCH CLAIM MADE IN THE RETURN CANNOT AMOU NT TO THE INACCURATE PARTICULARS. IN VIEW OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT CIT(A) HAS RIGHTLY DELETED THE PENALTY LEVIED BY ASSESSING OFFICER AND WE CONFIRM THE SAME. THIS ISSUE OF REVENUES APPEALS IS DISMISSED. NOW WE TAKE UP REVENUES APPEAL IN ITA NO.454/AHD/2 008. 6. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) IN QUASHING THE RE-ASSESSMENT PROCEEDINGS INITIATED U/ S.147 R.W.S 148 OF THE ACT. FOR THIS, REVENUE HAS RAISED THE FOLLOWING EFFECTIVE GROUND NO.1(A) AND 1(B) :- 1.(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN QUASHING THE ASSESSMENT MADE U/S.14 3(3) R.W.S. 147 ON 31- 03-2005 MAKING ADDITION OF RS.1,86,77,011/- ON ACCO UNT OF SUPPRESSED SALE, WITHOUT APPRECIATING THAT THE PROVISIONS OF SECTION 147 R.W. EXPLANATION 2(C)(I), AS AMENDED W.E.F. 01-04-1989, NO MORE REQUIRE INFO RMATION OR NEW MATERIAL BUT ONLY REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT IRRESPECTIVE OF THE SOURCE AND THE BASIS OF THE SAME, WHICH MAY INCLUDE REAPPRAISAL OF THE SAME MATERIAL. ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 9 (B) THE LD. CIT(A) ERRED IN DECIDING THE MATTER WI THOUT CONSIDERING THE BINDING DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF PRAFUL CHUNNILAL PATEL & VASANT CHUNNILAL PATEL VS. ACIT 236 ITR 832 (GUJ) LAYING DOWN: MERELY BECAUSE DURING THE ASSESSMENT PROCEEDINGS THE RELEV ANT MATERIAL WAS ON RECORD OR COULD HAVE BEEN WITH DUE DILIGENCE DISCER NED BY THE ASSESSING OFFICER FOR THE PURPOSE OF ASSESSING A PARTICULAR I TEM OF INCOME CHARGEABLE TO TAX, IT CANNOT BE INFERRED THAT THE ASSESSING OFFIC ER MUST NECESSARILY HAVE DELIBERATED OVER IT AND TAKEN IT OUT WHILE ASCERTAI NING THE TAXABLE INCOME OR THAT HE HAD FORMED ANY OPINION IN RESPECT THEREOF.. IN OUR VIEW, THE WORDS ESCAPED ASSESSMENT WHERE THE RETURN IS FILED, ARE APT TO COVER THE CASE OF DISCOVERY OF A MISTAKE IN THE ASSESSMENT CAUSED BY EITHER AN ERRONEOUS CONSTRUCTION OF THE TRANSACTION OR DUE TO ITS NON-C ONSIDERATION, OR, CAUSED BY A MISTAKE OF LAW APPLICABLE TO SUCH TRANSFER OR TRANS ACTION. (PENALTY PROCEEDINGS.839-40 OF 236 ITR) , THUS RENDERING THE CONSIDERATION OF CHANGE OF OPINION AS IRRELEVANT. 7. THE BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE T HAT ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 30-11-1997 AND REVISED THE SAME ON 31-03-1999. THE ORIGINAL ASSESSMENT ASSESSEE COMPLETED U/S.143(3) OF THE ACT ON 25-07-2000. THE ASSESSING OFFICER SUBSEQUENTLY NOTICED THAT THERE I S DIFFERENCE IN THE CLOSING STOCK OF NUMBERS OF CREDITED ITEMS AND ACCORDINGLY HE RECORD ED REASONS FOR REOPENING THE ASSESSMENT U/S.148 OF THE ACT, WHICH READS AT PAGE-2 OF HIS ASSESSMENT ORDER AS UNDER:- THE TURNOVER OF THE ASSESSEE COMPRISED BOTH SALES OF ITS OWN MANUFACTURED PRODUCTS AND SALE OF TRADED ITEMS. UNDER THE HEAD T RADED ITEMS, THE ASSESSEE HAD DISCLOSED IN ITS ANNUAL REPORT THAT IT HAD AN O PENING STOCK OF TRADED BEARINGS, COMPONENTS OF RAILWAY BEARINGS AND EQUIPM ENTS NUMBERING 84538 (RS.272.09 LAKHS). DURING THE YEAR, THE COMPANY PUR CHASED TRADED BEARINGS, COMPONENTS OF RAILWAY BEARINGS AND EQUIPMENTS NUMBE RING 151774 (RS.1995.22 LAKHS). IT ALSO PURCHASED BALLS AND DIA MONDS NUMBERING 120 (RS.1.66 LAKHS). DURING THE YEAR, IT SOLD TRADED BE ARINGS, COMPONENTS OF RAILWAY BEARINGS AND EQUIPMENTS NUMBERING 70766 (RS .2210.46 LAKHS). IT ALSO SOLD BALLS AND DIAMONDS NUMBERING 120 (RS.2.79 LAKH S). THE COMPANY HAD DISCLOSED CLOSING STOCK OF TRADED BEARINGS, COMPONE NTS OF RAILWAY BEARINGS AND EQUIPMENTS, NUMBERING 1099.28 (RS.536.20 LAKHS) . THE ABOVE DATA REVEALS THAT SHORTAGE OF TRADED ITEMS IS 55618 NUMB ERS. ON THE BASIS OF SALE PRICE PER BEARING IN TRADED ITEMS, THIS SHORTAGE WO ULD BE TO AN EXTENT OF RS.17.37 CRORES. WHEREAS SHORTAGE OF ITEMS IN THE SALE OF MANUFACTUR ED ITEMS WAS NEGLIGIBLE 35702 PIECES OVER A TURNOVER OF 213427579 PIECES OR 0.26% OVER SALES, THE SHORTAGE IN THE TRADED BEARINGS WAS DISPROPORTIONAT ELY LARGE AT 55618 PIECES OVER A SALE OF 70886 PIECES OR 78% OVER SALES. NORM ALLY, THE INCIDENCE OF SHORTAGE SURFACES IN MANUFACTURED ITEMS. THERE COUL D BE CASES WHERE SHORTAGE MIGHT ALSO SURFACE IN RESPECT OF TRADED IT EMS. BUT SUCH SHORTAGES IN ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 10 TRADED ITEMS CANNOT BE 3121 TIMES THE PERCENTAGE OF SHORTAGE IN MANUFACTURED ITEMS. IN REALITY, THIS COMPANY HAS CO ME UP WITH AN ACCOUNT WHICH SHOWS SHORTAGE OF 78 PIECES OF TRADED BEARING S ON EVERY TURNOVER OF 100 BEARINGS. THE NOTICE U/S.148 OF THE ACT WAS ISSUED AND SERVED ON ASSESSEE ON 15-03-2004. THE ASSESSEE BEFORE ASSESSING OFFICER RAISED THE OB JECTION THAT THE NOTICE ISSUED U/S.148 IS BAD IN LAW AND FILED COMPLETE DETAILS OF QUALITATIVE AND QUANTITATIVE TALLY OF CLOSING STOCK. THE ASSESSEE BEFORE THE CIT(A) ALSO RAISED THE ISSUE OF REOPENING AS INVALID. THE CIT(A) QUASHED THE RE-ASSESSMENT PROCE EDINGS INITIATED U/S.147 R.W.S. 148 OF THE ACT BY GIVING FOLLOWING FINDINGS IN PARA-5 OF HIS APPELLATE ORDER:- 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOT DISPUTED THAT THE NOTICE U/S.148 HAD BEEN ISSUED AFTER THE EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THAT ASSESSMENT U/S.14 3(3) HAD ALREADY BEEN MADE I THIS CASE. UNDER THE CIRCUMSTANCES, IT REQUI RES TO BE SEEN IF INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY AL L MATERIAL FACTS BECAUSE IT IS NOT A CASE WHERE THE RETURN HAD NOT BEEN FURNISHED BY THE APPELLANT U/S.139 OR IN RESPONSE TO A NOTICE U/S.142(1) OF THE ACT. I T IS OBSERVED FROM THE BARE FACTS NARRATED ABOVE AND THE REASONS FOR REOPENING EXTRACTED ABOVE THAT THE APPELLANT HAD FURNISHED ALL MATERIAL FACTS FULLY AN D TRULY AND, THE FACT OF SHORTAGES HAD BEEN VERY CLEARLY POINTED OUT IN THE TAX AUDIT REPORT WHERE BOTH QUANTITATIVE DETAILS AND VALUES HAD BEEN FURNI SHED AND, ON THE BASIS OF THE SAME ASSESSMENT HAD BEEN COMPLETED U/S.143(3) B Y THE ASSESSING OFFICER WITHOUT MAKING ANY ADDITION ON THIS COUNT. IT IS FURTHER OBSERVED THAT THE ASSESSING OFFICER HAS MERELY RELIED UPON THE SA ME MATERIAL AVAILABLE IN THE TAX AUDIT REPORT AND ISSUED NOTICE U/S.148 FOR REOPENING THE ASSESSMENT. IT IS FURTHER OBSERVED IN THIS CONTEXT THAT IT IS A CLEAR CASE OF CHANGE OF OPINION AS A CONSEQUENCE OF THE RE-APPRECIATION OF THE SAME MATERIAL WHICH WAS AVAILABLE AT THE TIME OF ORIGINAL ASSESSMENT ALONG WITH THE RETURN OF INCOME. UNDER THE CIRCUMSTANCES, IT IS OBSERVED THAT ONE OF THE CONDITIONS CONTAINED IN SEC. 147 FOR ISSUANCE OF NOTICE U/S 148 IS NOT S ATISFIED SINCE THE APPELLANT IS FOUND TO HAVE DISCLOSED ALL MATERIAL FACTS, FULLY A ND TRULY AT THE TIME OF ORIGINAL ASSESSMENT. UNDER THE CIRCUMSTANCES, IT IS HELD THA T THE ASSESSMENT COMPLETED U/S.143(3) WAS NOT VALIDLY REOPENED U/S.1 48 R.W.S. 147 AND, THEREFORE, THE REOPENING OF THE ASSESSMENT IS QUASH ED. AGGRIEVED, REVENUE CAME IN APPEAL BEFORE THE TRIBUN AL. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE FACT IS NOT IN DISPUTE REGARDING ISSUANCE OF NOTICE U/S.148 OF THE ACT, WHICH IS ISSUED AFTER THE EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THAT ASSESSMENT U/S.143(3) HAD ALREADY BEEN ITA947/AHD/07 & 454/AHD/08 A.Y. 99- 00 &97-98 ACIT CIR1(2) BRD V. M/S FAG BEARINGS INDIA LTD. PAGE 11 MADE IN THIS CASE. UNDER THE CIRCUMSTANCES, IT REQU IRES TO BE SEEN IF INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT BY REASON OF THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS BECAUSE IT IS NOT A CASE WHERE THE RETURN HAD NOT BEEN FURNISHED BY THE ASSESSEE O R NOT. WE FIND THAT THE FACT OF SHORTAGES HAD BEEN VERY CLEARLY POINTED OUT IN THE TAX AUDIT REPORT WHERE BOTH QUANTITATIVE DETAILS AND VALUES HAD BEEN FURNISHED AND, ON THE BASIS OF THE SAME ASSESSMENT HAD BEEN COMPLETED U/S.143(3) BY THE ASS ESSING OFFICER WITHOUT MAKING ANY ADDITION ON THIS COUNT. WE FURTHER FIND FROM RE CORDS THAT THE ASSESSING OFFICER HAS MERELY RELIED UPON THE SAME MATERIAL AVAILABLE IN THE TAX AUDIT REPORT AND ISSUED NOTICE U/S.148 FOR REOPENING THE ASSESSMENT AND ACCORDINGLY, WE FIND THAT IT IS A CLEAR CASE OF CHANGE OF OPINION AS A CONSEQUENCE OF THE RE-APPRECIATION OF THE SAME MATERIAL WHICH WAS AVAILABLE AT THE TIME OF OR IGINAL ASSESSMENT ALONG WITH THE RETURN OF INCOME. ACCORDINGLY, WE ARE OF THE VIEW T HAT THE CIT(A) HAS RIGHTLY QUASHED THE RE-ASSESSMENT PROCEEDINGS U/S.147 R.W.S. 148 OF THE ACT AND WE CONFIRM THE SAME. THIS APPEAL OF REVENUE IS DISMISSED. 9 . IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE DI SMISSED. ORDER PRONOUNCED IN OPEN COURT ON 22/02/2011 SD/- SD/- (A.N.PHAUJA) (MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 22/02/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-I, BARODA 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD