THE ACIT 4(2), MUMBAI V. M/S. MEENAKSHI METALLICS PVT. LTD, MUMBAI

ITSSA 116/MUM/2007

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7435 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-03-2012
• Assessment Year: misc
• Appeal Filed On: 02-08-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Keywords: Search and seizure; Question of law; Corroborative evidences; Validity of assessment; Retraction; Documents seized
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE SHIRI G.E. VEERABHADRAPPA, HON'BLE PRESIDENT AND SHRI AMIT SHUKLA, JUDICIAL MEMBER IT(SS)A NO. : 116/MUM/2007 BLOCK PERIOD: 01.04.89 TO 21.12.99 THE ACIT-4(2), ROOM NO.642, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020 M/S. MEENAKSHI METALLICS P. LTD. 38, SECOND BHOLWADA, 2 ND FLOOR, BHULESHWAR MARG, MUMBAI PAN NO: AABCM 9731 A (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI P. C. MAURYA RESPONDENT BY : SHRI SATISH R. MODY DATE OF HEARING : 05.03.2012 DATE OF PRONOUNCEMENT : 13.04.2012 O R D E R PER AMIT SHUKLA (J.M.) : THE PRESENT APPEAL HAS BEEN FILED BY THE DEPARTMENT AGAINST ORDER DATED 09.05.2007 PASSED BY CIT (APPEALS)-IV, MUMBAI FOR THE BLOCK PERIOD PASSED U/S.158BD ON THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF `. 13.5 LACS U/S.68 AND BOGUS INTEREST EXPENSES OF `. 3,68,958/- AND `. 3,300/- U/S.69C, WHEN THE ASSESSEE HAD FAILED TO DISCHARGE HIS ONUS IN CONCLUSIVELY PROVING THAT CREDITWORTHINESS OF DONOR AND GENUINENESS OF TRANSACTION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WHILE RELYING ON THE STATEMENT OF THE LENDER, AFFIRMING THE LOAN FAILED TO CONSIDERED THE DOCUMENTS AND OTHER CORROBORATIVE EVIDENCES FOUND DURING THE SEARCH AT SHRI KHEMCHAND SHAH. IT(SS)A NO : 116/MUM/2007 2 M/S. MEENAKSHI METALLICS PVT. LTD. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ACCEPTING THE RETRACTION OF SHRI KHEMCHAND SHAH, ALLEGED LEADER AFTER A GAP OF 7 YEARS, FROM HIS STATEMENT ON OATH RECORDED AT THE TIME OF SEARCH. 4. FURTHER, PLACED IN THE ABOVE FACTUAL AND LEGAL SCENARIO, THE IMPUGNED ORDER OF THE LD. CIT(A) IS, THE APPELLANT PRAYS, CONTRARY TO LAW AND CONSEQUENTLY MERITS TO BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. THE ASSESSEE-RESPONDENT VIDE PETITION DATED 05.03.2010 HAS FILED AN ADDITIONAL GROUND READING AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSMENT U/S.143(3) R.W.S 158BC IS BAD IN LAW AS THE NOTICE U/S.143(2) WAS ISSUED AND SERVED BEYOND THE PERIOD OF 12 MONTHS FROM THE DATE OF FILING OF RETURN OF INCOME IN PURSUANT TO NOTICE U/S.158BC. 3. AT THE TIME OF HEARING, THE LEARNED AR APPEARING ON BEHALF OF THE RESPONDENT/ASSESSEE PLEADED THAT THE SAID ADDITIONAL GROUND AS HAS BEEN RAISED, GOES TO THE VERY ROOT OF THE ISSUE, AS IT INVOLVES QUESTION OF LAW DEALING WITH VALIDITY OF ASSESSMENT AND ADDITION MADE BY THE ASSESSING OFFICER ITSELF. THE ADDITIONAL GROUND IS ADMISSIBLE UNDER RULE 27 OF THE INCOME TAX (APPELLATE) TRIBUNAL RULES, 1963. IN SUPPORT OF HIS CONTENTION AND FOR ADMISSION OF THE GROUND, RELIANCE WAS PLACED ON THE JUDGMENT OF CO-ORDINATE BENCH OF THE ITAT J BENCH, MUMBAI IN THE CASE OF ACIT VS. RAY CONSTRUCTION PASSED BY THE ITAT VIDE ORDER DATED 07.10.2010 IN IT(SS)A NO.3159/MUM/2003 . THE LEARNED AR CONTENTED THAT IN THE SAID ORDER, THE HON'BLE ITAT HAS TAKEN NOTE OF THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF B.R. BAMASI VS. CIT REPORTED IN (1972) 82 ITR 223 (BOM.) ON THE SAME FACTS AND CIRCUMSTANCES AND ON SIMILAR ADDITIONAL GROUND. IT(SS)A NO : 116/MUM/2007 3 M/S. MEENAKSHI METALLICS PVT. LTD. 4. ON THE OTHER HAND, THE CIT DR VEHEMENTLY OPPOSED THE ADMISSION OF ADDITIONAL GROUND, AS THE SAME WAS NEITHER RAISED BEFORE THE ASSESSING OFFICER, NOR BEFORE THE CIT(APPEALS) AND IT DOES NOT EVEN ARISE OUT OF THE ORDERS OF THE AUTHORITIES BELOW. HE CONTENTED THAT RULE 27 IS APPLICABLE ONLY WHEN ANY GROUND HAS BEEN DECIDED AGAINST THE RESPONDENT AND NOT OTHERWISE. ALTERNATIVELY, HE ARGUED THAT IN VIEW OF THE PROVISIONS OF SECTION 292BB, NO OBJECTION REGARDING THE VALIDITY OF NOTICE CAN BE RAISED AT THIS STAGE. IN SUPPORT OF HIS CONTENTION, HE RELIED UPON THE JUDGMENT OF HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. PANCHVAR MOTORS P. LTD. REPORTED IN (2011) 12 TAXMAN.COM 111 . 5. IN THE REJOINDER, THE LEARNED AR SUBMITTED THAT THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SALMAN KHAN IN INCOME TAX APPEAL NO.508/2000 , HELD THAT THE PROVISIONS OF SECTION 292 BB WILL NOT BE APPLICABLE PRIOR TO THE ASSESSMENT YEAR 2008-09, AS IT WAS BROUGHT IN THE STATUE W.E.F 01.04.2008. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES ON THE PRELIMINARY ISSUE OF ADDITIONAL GROUND AS HAS BEEN RAISED BY THE LEARNED AR ON BEHALF OF THE RESPONDENT/ASSESSEE. BEFORE ADJUDICATING THE SAID ISSUE AS HAVE BEEN RAISED IN ADDITIONAL GROUND, THE RELEVANT FACTS AND BACKGROUND OF THE CASE ARE THAT, A SEARCH AND SEIZURE ACTION U/S.132 WAS CARRIED OUT IN THE CASE OF M/S. AMAR FERRO METALS P. LTD. AND M/S. AMPEX TRADING CO. DURING THE COURSE OF SEARCH ACTION AT THE PREMISES AT 38, 2 ND FLOOR, 2 ND BHOIWADA, MUMBAI BELONGING TO M/S. IT(SS)A NO : 116/MUM/2007 4 M/S. MEENAKSHI METALLICS PVT. LTD. AMPEX TRADING CO., IT WAS FOUND THAT SHRI KHEMCHAND SHAH WAS ALSO DOING HIS BUSINESS. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OF M/S. AMAR FERRO METALS P. LTD. AND ITS DIRECTORS, IT WAS FOUND THAT THE NUMBER OF DOCUMENTS SEIZED AT THE TIME OF SEARCH PERTAINED TO THE UNDISCLOSED INCOME OF M/S. MEENAKSHI METALLICS P. LTD. ON THIS BACKGROUND, THE PROCEEDINGS U/S.158BD WERE INITIATED AGAINST THE M/S. MEENAKSHI METALLICS P. LTD., RESPONDENT/ASSESSEE HEREIN IN THIS APPEAL AND ACCORDINGLY NOTICE U/S.158BD WAS ISSUED ON 28.02.2003 REQUIRING THE ASSESSEE TO FILE THE RETURN OF INCOME FOR THE BLOCK PERIOD. IN RESPONSE TO THE SAID NOTICE, THE RETURN WAS FILED ON 19.05.2003 DECLARING THE UNDISCLOSED INCOME FOR THE BLOCK PERIOD AT NIL. FROM A PERUSAL OF PARA 4 OF THE ASSESSMENT ORDER, IT IS SEEN THAT THE ASSESSING OFFICER HAS MENTIONED, THAT NOTICE U/S.143(2) AND 142(1) WERE ISSUED TO THE ASSESSEE. DURING THE COURSE OF THE HEARING, IT WAS CLARIFIED BEFORE THE BENCH BY THE LEARNED AR THAT IT IS A MATTER OF RECORD THAT THE NOTICE U/S.143(2) HAS BEEN ISSUED BEYOND THE PERIOD OF 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED. I.E. 19.05.2003. THE LEARNED SR. DR HAS ALSO NOT DISPUTED THIS FACT AND ADMITTED THAT THE NOTICE U/S.143(2) HAS BEEN ISSUED BEYOND THE PERIOD OF 12 MONTHS. 6.1 NOW, THE ISSUE BEFORE US IS, AS TO WHETHER NON ISSUANCE AND SERVICE OF NOTICE U/S.143(2) CAN BE RAISED AT THIS STAGE BY WAY OF ADDITIONAL GROUND BY THE RESPONDENT, EVEN THOUGH IT HAS NOT FILED ANY CROSS OBJECTION OR APPEAL BEFORE THE TRIBUNAL AND THE GROUNDS RAISED BY THE DEPARTMENT ARE PURELY ON MERITS OF THE ADDITION. RULE 27 IT(SS)A NO : 116/MUM/2007 5 M/S. MEENAKSHI METALLICS PVT. LTD. OF INCOME TAX RULES, 1963, WHICH HAS BEEN RELIED UPON BY THE LD. AR, PROVIDES THAT THE RESPONDENT, THOUGH HE MAY NOT HAVE APPEALED, MAY SUPPORT THE ORDER APPEALED AGAINST ON ANY OF THE GROUNDS DECIDED AGAINST HIM. RULE 11 ALSO PROVIDES THAT THE APPELLANT MAY RAISE OR URGED ANY SUCH GROUND, THOUGH NOT SET FORTH IN THE MEMORANDUM OF APPEAL BEFORE THE TRIBUNAL . THUS, BOTH THE RULES ARE PROCEDURAL IN NATURE WHICH GIVES POWER TO THE TRIBUNAL TO ENTERTAIN A PLEA OR TO RAISE ANY NEW POINT EITHER BY THE RESPONDENT OR BY THE APPELLANT BEFORE IT. THE LEGAL ISSUES AS HAVE BEEN RAISED BY THE RESPONDENT, AT THIS STAGE, CAN BE ENTERTAINED UNDER RULE 27. THIS ISSUE THAT UNDER RULE 27, LEGAL GROUND CAN BE ADMITTED OR NOT HAS BEEN ANSWERED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF BR BAMASI VS. CIT REPORTED IN 82 ITR 223 , IN THE FOLLOWING MANNER :- HELD,(I) THAT WHEN THE ASSESSEE HAD FILED A VOLUNTARY RETURN FOR THE YEAR 1947-48, THE NOTICE UNDER SECTION 34(1)(A) WAS WRONGLY ISSUED AND THE PROCEEDINGS IN PURSUANCE THEREOF WERE INVALID; AND (II) THAT THE ASSESSEE WOULD BE ENTITLED TO RAISE A NEW GROUND, PROVIDED IT IS A GROUND OF LAW AND DOES NOT NECESSITATE ANY OTHER EVIDENCE TO BE RECORDED, THE NATURE OF WHICH WOULD NOT ONLY BE A DEFENCE TO THE APPEAL ITSELF, BUT MAY ALSO AFFECT THE VALIDITY OF THE ENTIRE ASSESSMENT PROCEEDINGS. IF THE GROUND SUCCEEDS, THE ONLY RESULT WOULD BE THAT THE APPEAL WOULD FAIL. THE ACCEPTANCE OF THE GROUND WOULD SHOW THAT THE ENTIRE ASSESSMENT PROCEEDINGS WERE INVALID, BUT YET THE TRIBUNAL WHICH HEARS THE APPEAL WOULD HAVE NO POWER TO DISTURB OR TO SET ASIDE THE ORDER IN FAVOUR OF THE APPELLANT. THAT ORDER WOULD STAND AND WOULD HAVE FULL EFFECT IN SO FAR AS IT IS AGAINST THE RESPONDENT. THE GROUND WOULD SERVE ONLY AS A WEAPON OF DEFENCE AGAINST THE APPEAL. HENCE, THE REFUSAL OF THE TRIBUNAL TO ALLOW THE ASSESSEE TO CHALLENGE FOR THE FIRST TIME BEFORE IT THE VALIDITY OF THE NOTICE AND ASSESSMENT UNDER SECTION 34 WHILE CONSIDERING THE APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER OF THE APPELLATE ASSISTANT COMMISSIONER WAS NOT IN ACCORDANCE WITH LAW. IT(SS)A NO : 116/MUM/2007 6 M/S. MEENAKSHI METALLICS PVT. LTD. 6.2 SIMILARLY, IN AN ANOTHER DECISION OF THE ITAT MUMBAI BENCH IN THE CASE OF DCIT VS. M/S. EDELWEISS CAPITAL LTD., MUMBAI IN ITA NO.3971/MUM/2009 VIDE ORDER DATED 15.02.2011, AFTER RELYING UPON THE JUDGMENT OF BOMBAY HIGH COURT IN THE CASE OF CIT VS. GILBERT & BARKER MANUFACTURING CO., USA (1978) 111 ITR 529 (BOM) , IT WAS HELD THAT THE TRIBUNAL HAD DISCRETION TO ALLOW ANY PARTY TO AN APPEAL, WHETHER THE APPELLANT OR RESPONDENT, TO RAISE A NEW POINT OR NEW CONTENTION PROVIDED TWO CONDITIONS SATISFIED, NAMELY, (I) NO NEW FACTS ARE REQUIRED TO BE BROUGHT ON RECORD FOR DISPOSING OF SUCH NEW POINT; AND (II) AN OPPORTUNITY IS GIVEN TO THE OTHER SIDE TO MEET THE POINT. THE ITAT ALSO TOOK A NOTE OF THE FACT OF THE HON'BLE SUPREME COURT IN THE CASE OF HUKUMCHAND MILLS LTD. VS. CIT REPORTED IN (1967) 63 ITR 232 (SC) , WHEREIN THE HON'BLE SUPREME COURT HELD THAT RULE 27 OF THE ITAT RULES IS NOT EXHAUSTIVE OF THE POWERS OF THE TRIBUNAL AND IS MERELY PROCEDURAL IN CHARACTER AND DOES NOT IN ANY WAY CIRCUMSCRIBE OR CONTROL THE POWERS OF THE TRIBUNAL WHICH ARE COUCHED IN WIDEST POSSIBLE TERMS UNDER SECTION 254(1) OF THE ACT. AFTER HEARING TO THIS JUDGMENTS, THE ITAT CAME TO THE CONCLUSION THAT UNDER RULE 27, THE ASSESSEE IS PERMITTED TO DEFEND THE ORDER OF CIT(APPEALS) ON ANY OTHER GROUND WHICH HAS BEEN CONSIDERED BY THE CIT(APPEALS). 6.3 HERE THE LEGAL ISSUES WHICH HAVE BEEN RAISED GOES TO THE VERY VALIDITY OF THE ASSESSMENT ON THE GROUND OF LIMITATION OF ISSUING THE NOTICE WITHIN A SPECIFIC TIME LIMIT PROVIDED UNDER THE ACT. SECTION 143 (2) ENABLES THE ASSESSING OFFICER TO SCRUTINIZE THE RETURN AND TO VARY THE IT(SS)A NO : 116/MUM/2007 7 M/S. MEENAKSHI METALLICS PVT. LTD. RETURN INCOME AFTER GIVING OPPORTUNITY TO THE ASSESSEE. PROVISO TO SECTION 143 (2) PUTS A LIMITATION OF TIME FOR SERVING SUCH NOTICE. THE RELEVANT PROVISION UNDER SECTION 143(2) AND PROVISO THERETO, AS IT IS STOOD THEREIN, IS REPRODUCED HEREIN BELOW :- (2) WHERE A RETURN HAS BEEN MADE UNDER SECTION 139, OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTION 142, THE ASSESSING OFFICER SHALL, IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NOT UNDER-PAID THE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR TO PRODUCE, OR CAUSE TO BE PRODUCED THERE, ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN : PROVIDED THAT NO NOTICE UNDER THIS SUB-SECTION SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN IS FURNISHED. 6.4 THUS, SECTION 143 (2) READ WITH PROVISO RAISES THE POINT OF JURISDICTION OF THE ASSESSING OFFICER TO TAKE UP THE MATTER FOR SCRUTINY OR VERIFYING THE CONTENTS OF THE RETURN AFTER ISSUING NOTICE UNDER THIS SECTION. SUCH A SCRUTINY OR VERIFICATION OF THE RETURN CAN BE DONE ONLY IF NOTICE UNDER THIS SECTION IS SERVED UPON THE ASSESSEE WITHIN A PERIOD OF TWELVE MONTHS. THUS, PROVISO PUTS AN EMBARGO FOR SERVICE OF NOTICE WITHIN A STIPULATED TIME. THIS EMBARGO RAISES A POINT OF LIMITATION AND IS VERY VITAL TO FRAMING OF ASSESSMENT. THE FAILURE TO ADHERE THE SAME, RENDERS THE ADDITIONS MADE IN THE ASSESSMENT ORDER ILLEGAL. THIS POSITION OF LAW HAS NOW BEEN SETTLED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. HOTEL BLUE MOON, REPORTED IN 321 ITR 362 . THUS, THE LEGAL GROUND RAISED BY THE RESPONDENT IS PURELY A QUESTION OF LIMITATION FOR ISSUANCE AND SERVICE OF NOTICE WHICH DESERVES TO BE ADMITTED AS IT IS A LEGAL MANDATE UPON THE COURT TO DEAL AND DECIDE THE IT(SS)A NO : 116/MUM/2007 8 M/S. MEENAKSHI METALLICS PVT. LTD. ISSUE OF LIMITATIONS, IF IT HAS BEEN RAISED BY ANY OF THE PARTIES AT ANY STAGE, EVEN THOUGH IT WAS NOT RAISED OR CONSIDERED EARLIER BY ANY OF THE AUTHORITIES BELOW. MOREOVER, FOR ADJUDICATION OF THIS ISSUE, NO INVESTIGATION OF ISSUANCE OR SERVICE OF NOTICE IS REQUIRED AS THERE IS NO DISPUTE WITH REGARD TO THE TIMING OF ISSUANCE AND SERVICE OF NOTICE. HENCE, THE SAME IS ADMITTED FOR THE PURPOSE OF ADJUDICATION OF THE PRESENT APPEAL. THE POINT IN ISSUE IS ALSO SQUARELY COVERED BY THE JUDGMENT RELIED UPON BY THE LEARNED AR IN THE CASE OF ACIT VS. M/S. RAY CONSTRUCTION (SUPRA), WHEREIN THE HON'BLE ITAT AFTER TAKING DUE NOTE OF B.R. BAMASIS CASE (SUPRA) AND ASSAM COMPANY INDIA LIMITED, REPORTED IN 256 ITR 423 , HAS HELD THAT UNDER RULE 27 THE GROUNDS RAISED BY THE RESPONDENT/ASSESSEE SHOULD BE ADMITTED AND DECIDED UPON. HERE IN THIS CASE ALSO A SIMILAR GROUND WAS RAISED BY THE RESPONDENT/ASSESSEE WITHOUT FOLLOWING ANY CROSS OBJECTION WITH NOTICE U/S.143(2) IN RELATION TO THE RETURN FILED IN RESPONSE TO NOTICE U/S.158BD WAS BEYOND THE PERIOD OF 12 MONTHS. THE HON'BLE TRIBUNAL FOLLOWING THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF HOTEL BLUE MOON (SUPRA) HELD THAT THE ORDER OF THE CIT(APPEALS) DELETING THE ADDITIONS, IS UPHELD. 6.5 HERE IN THIS CASE, IT IS NOT IN DISPUTE EVEN BY THE DEPARTMENT THAT NOTICE UNDER SECTION 143 (2) HAS BEEN ISSUED AND SERVED AFTER A PERIOD OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH THE RETURN WAS FILED IN RESPONSE TO NOTICE UNDER SECTION 158 BD. THUS, IN VIEW OF THE SETTLED POSITION OF LAW BY THE HONBLE APEX COURT IN THE CASE OF HOTEL IT(SS)A NO : 116/MUM/2007 9 M/S. MEENAKSHI METALLICS PVT. LTD. BLUE MOON (SUPRA) , THE IMPUGNED ASSESSMENT ORDER HAS BEEN RENDERED INVALID BY VIRTUE OF NON-ISSUANCE AND SERVICE OF NOTICE UNDER SECTION 143(2) WITHIN TIME LIMIT. SINCE WE ARE ADJUDICATING THE ISSUE WITHIN THE SCOPE OF RULE 27, THEREFORE, TO THE EXTENT THAT CIT(A) HAS DELETED THE ADDITIONS, STANDS CONFIRMED. 6.6 LASTLY, THE ARGUMENT ADVANCED BY THE LEARNED CIT DR IS NOT TENABLE IN VIEW OF THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SALMAN KHAN (SUPRA), WHEREIN IT HAS BEEN HELD THAT SECTION 292 (BB) WILL NOT BE APPLICABLE PRIOR TO ASSESSMENT YEAR 2008- 2009. IN THE RESULT, THE ADDITIONS WHICH HAVE BEEN DELETED BY THE CIT (A) ARE UPHELD AND THE APPEAL OF THE REVENUE STANDS DISMISSED ON THIS GROUND ALONE. 7. BOTH THE PARTIES, DURING THE COURSE OF THE HEARING HAD ARGUED THE MATTER ON MERITS OF THE ADDITION AT LENGTH. HOWEVER THE SAME ARE NOT ADJUDICATED UPON IN VIEW OF THE FINDING GIVEN ABOVE. ACCORDINGLY, THE APPEAL FILED BY THE DEPARTMENT STANDS DISMISSED ON THE PRELIMINARY ISSUE RAISED BY THE RESPONDENT-ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED ON THIS 13 TH DAY OF APRIL, 2012. SD/- SD/- ( G.E. VEERABHADRAPPA ) ( AMIT SHUKLA ) PRESIDENT JUDICIAL MEMBER MUMBAI, DT: 13 TH APRIL, 2012 IT(SS)A NO : 116/MUM/2007 M/S. MEENAKSHI METALLICS PVT. LTD. 10 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, B - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI/PRAKASH