TAJ SATS AIR CATERING LTD, V. DCIT RG 2(3),

MA 108/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8749 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 08-06-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 20-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Keywords: Depreciation; Rectification of order; Additional evidence; Valuation report; Revenue expenditure
• Section: 143(3); 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) ASSESSMENT YEAR 2006-07 TAJ SATS AIR CATERING LTD., MANDLIK HOUSE, MANDLIK ROAD, COLABA, MUMBAI-400 001. PAN: AABCT 4686 P VS. THE DEPUTY COMMISSIONER OF INCOME TAX OFFICER, RANGE 2(3), ROOM NO. 555, AAYAKAR BHAVAN, M.G. ROAD, MUMBAI 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJAN VORA REVENUE BY : SHRI P.K.B. MENON DATE OF HEARING : 08-06-2012 DATE OF PRONOUNCEMENT : 18-07-2012 ORDER PER RAJENDRA, A.M. AN APPLICATION U/S. 254 OF THE I.T.ACT, 1961 (ACT) WAS FILED BY THE ASSESSEE ON 20-02-2012 WITH REFERENCE TO THE OR DER DT. 20-01- 2012 OF THE ITAT E BENCH, MUMBAI FOR THE ASSESSME NT YEAR 2006-07 (ITA NO. 8500/ MUM/ 2010). AS PER THE APPELLANT FOL LOWING INADVERTENT ERRORS/FINDINGS WERE NOTICED IN THE SAI D ORDER : I. FINDINGS THAT VALUATION REPORT IS AN AFTER THOUGHT II. THERE IS CONTRADICTION WHILE FOLLOWING THE ITAT ORD ER FOR AY 2003-04 M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 2 III. NO DEPRECIATION IS ALLOWABLE IF NO CLAIM IS MADE/AL LOWED IN PRECEDING YEARS IV. REJECTION OF BUYERS RIGHT TO ALLOCATE PURCHASE PRIC E AS PER VALUATION REPORT TO VARIOUS ASSETS ACQUIRED UNDER SLUMP SALE. V. ERRONEOUS RELIANCE ON DISCLAIMER CLAUSE. 2. BREIF FACTS : THE ASSESSEE ENGAGED IN THE BUSINESS OF AIRLINE AND INSTITUTIONAL CATERING FILED ITS RETURN OF INCOME O N 12.12.2006 FOR INCOME OF RS. 36.06 CRORES. IN THE ASSESSMENT COMP LETED U/S. 143(3) R.W.S.144C (13)OF THE ACT INCOME OF THE ASSESSEE WA S DETERMINED AT RS.44.07 CRORES AFTER MAKING ADDITION OF RS. 7.78 C RORES ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON GOODWILL. THE Q UESTION OF GOODWILL AROSE FOR THE FIRST TIME IN THE AY 2003-2004 AND DI SALLOWANCE MADE FOR THAT AY HAS DIRECT IMPACT ON THE PROCEEDINGS FO R THE YEAR UNDER CONSIDERATION. SO,WE WOULD LIKE TO DISCUSS FACTS OF THAT AY ALSO. 2.1. IN THAT AY RETURN OF INCOME WAS FILED ON 27.11.2003 DECLARING LOSS OF RS. 10.91 CRORES. IN THE COMPUTATION OF TOT AL INCOME, THE ASSESSEE HAD CLAIMED DEPRECIATION OF RS. 18,43,62,3 35/- ON GOODWILL OF RS. 73,74,49,343/- @ 25%. AO DISALLOWED THE CLA IM MADE BY THE ASSESEE ON THE GROUND THAT THE PROVISIONS OF SECTIO N 32(1) DID NOT INCLUDE GOODWILL.FIRST APPELLATE AUTHORITY (FAA) VI DE HIS ORDER NO. CIT(A)-XXXIII-RG.2(3)/IT/44-T/06-07 DATED 29.12 .2006 UPHELD THE ORDER OF THE AO. AGGRIEVED BY THE FAAS ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE ITAT (ITA NO. 2844/M UM/2007). BEFORE THE ITAT,ASSESSEE FURNISHED A VALUATION REP ORT DATED 23.03.2009 PREPARED BY VALUER M/S.ERNST & YOUNG PVT . LTD.,WHO HAD IDENTIFIED VAROIUS INTANGIBLE ASSETS AND MADE SEPAR ATE VALUATION FOR EACH OF SUCH ASSETS. VALUATION REPORT WAS SUBMITTED AS AN ADDITIONAL EVIDENCE AND ASSESSEE MADE A REQUEST THAT THE SAID VALUATION REPORT SHOULD BE TAKEN INTO CONSIDERATION FOR DECIDING THE ISSUE OF ALLOWABILITY OR OTHERWISE OF CLAIM OF DEPRECIATION MADE U/S. 32(1)(II) OF THE ACT. DEPARTMENTAL REPRESENTATIVE (DR) OBJECTED TO THE CONTENTION OF THE ASSESSEE AND SUBMITTED THAT SINCE THE SAID V ALUATION REPORT WAS NOT FURNISHED EITHER BEFORE THE AO OR BEFORE THE FA A, SAME SHOULD NOT BE ADMITTED. AFTER CONSIDERING THE RIVAL SUBMISSIO NS TRIBUNAL DECIDED THAT ADDITIONAL EVIDENCE SHOULD BE ADMITTED AND IN THIS REGARD OBSERVED AS UNDER: THIS EVIDENCE IN OUR HUMBLE OPINION GOES INTO THE ROOT OF THE MATTER. FROM THE ASSESSMENT ORDER IT CAN BE CLEARL Y SEEN THAT THE ASSESSING OFFICER HAS NOTICED FROM THE RECITALS IN THE BUSINESS M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 3 TRANSFER AGREEMENT, THAT INTELLECTUAL PROPERTIES WH ICH ARE LISTED OUT IN ARTICLE 1 SUB CLAUSE B HAVE BEEN TRANSFERRED ALONG WITH OTHER MOVABLE AND IMMOVABLE ASSETS. EVEN IN ARTICL E 2 SUB CLAUSES B AND E MENTION A LIST OF INTANGIBLE ASSETS , WHICH HAVE BEEN AGGREGATED AND LOOSELY TERMED AS GOODWILL BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT. THUS THE FACT TH AT THE SLUMP SALE CONSISTS OF MANY ALLOWABLE ON GOODWILL. BUT A T THE SAME TIME, THE LEGISLATURE PROVIES THAT DEPRECIATION SHO ULD BE ALLOWED ON ALL OTHER TANGIBLE ASSETS OTHER THAN GOODWILL. THE ASSESSEES ADDITIONAL EVIDENCE THROWS LIGHT ON THE VALUATION O F EACH OF THE INTANGIBLE ASSETS. SUCH EVIDENCE GOES INTO THE ROO T OF THE MATTER FOR THE PURPOSE OF ARRIVING AT A DECISION AS TO WHE THER THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S. 32(1)(II) O F THE ACT AND IF SO, THE QUANTUM OF DEPRECIATION THAT HE IS ENTITLED TO. THUS, WE ADMIT THIS ADDITIONAL EVIDENCE AND REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATIO N IN ACCORDANCE WITH LAW. 3. IN PURSUANCE OF THE ORDER OF THE TRIBUNAL AO ISSUED NOTICE TO THE ASSESSEE AND STARTED FRESH ASSESSMENT PROCEEDIN GS. ASSESSEE FILED VARIOUS DOCUMENTS BEFORE THE AO LIKE CORPORATE SERV ICES AGREEMENT, NAME AND TRADE MARK LICENSE AGREEMENT, BUSINESS TRA NSFER AGREEMENT,LEASE DEED OF DELHI FLIGHT KITCHEN,OPERAT ING AGREEMENT WITH TMFK, SAMPLE COPIES OF RECIPES. AO FOUND THAT THE ASSESSEE HAD ACQUIRED THE CATERING BUSINESS OF INDIAN HOTELS CO. LTD.,(IHCL) A JOINT VENTURE BETWEEN IHCL AND SINGAPORE AIR TERMINUS SER VICES LTD.(SATS) VIDE BUSINESS TRANSFER AGREEMENT (BTA) D ATED 25.09.01, THAT THE CONTRACTS FOR ACQUIRING THE VARIOUS ASSETS WERE AVAILABLE TO THE ASSESSEE AT THE TIME OF MAKING THE ORIGINAL VAL UATION, INCLUDING THAT OF GOODWILL, THAT THE SAID CONTRACTS WERE INCL UDED IN THE ORIGINAL VALUATION, THAT THE ASSESSEE HAD VALUED VARIOUS ASS ETS INCLUDING GOODWILL AT RS. 73.74 CRORES AS ON 01.04.2002. HE HELD THAT THE ASSESSEE HAD NOT BROUGHT IN ANY OTHER ASSETS AT THE TIME OF ACQUIRING THE BUSINESS,THAT THE ASSESSEE DID NOT BRING IN ANY OTHER ASSETS IN THE SAID VALUE DURING THE COURSE OF ASSESSMENT PROCEEDI NGS ALSO,THAT IT WAS NOT ARGUED BEFORE HIM THAT VARIOUS INTANGIBLE A SSETS WERE INCLUDED IN THE VALUE OF RS.73.74 CRORES,THAT ANY S UCH ARGUMENT WAS NOT ADVANCED BEFORE THE FAA DURING THE COURSE OF AP PELLATE PROCEEDINGS. HE FOUND FROM THE VALUATION REPORT TH AT VALUERS HAD VALUED INTANGIBLE ASSETS AS UNDER: I.) RIGHT TO USE TAJ BRAND NAME(RS.30.08 CRORES), I I) CORPORATE PROCUREMENT AGREEMENT WITH IHCL(9.5 CRORES), III)OP ERATING AGREEMENT WITH TMFK (3.2 CRORES), IV)LEASE AGREEMEN T FOR DELHI KITCHEN(1.3 CRORES), V)RECIPES (2 CRORES), VI)LICEN SES (0.1 CRORES), VII)WORK FORCE (2.6 CRORES) M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 4 3.1 AO FURTHER NOTED THAT THE PURCHASE CONSIDERATION AS PER BTA WAS 206.4 CRORES THAT WAS APPORTIONED UNDER VARIOU S HEADS. AO NOTICED THAT VALUATION WAS ALSO CARRIED OUT BY M/S. ERNST & YOUNG WHO HAD DONE THE VALUATION ON 23.03.09 OF INTANGIBL E ASSETS. IN THIS REGARD HE MENTIONED THE FOLLOWING FACTS: I.BUSINESS WAS ACQUIRED AS A GOING-CONERN BY VIRTUE OF BTA DTD.21. 09.2001. II.ASSESSEE HAD ACQUIRED THE BUSINESS OF SATS FOR A DETERMINED CONSIDERATION OF RS. 604 CRORES. III.VALUE OF ALL THE ASSETS INCLUDING GOODWILL WAS DETERMINED BY E & Y BY THEIR VALUATION REPORT DATED MARCH 2002. IV.AFTER A GAP OF NEARLY 8 YEARS,WHEN THE ASSESSEE LOST THE CLAIM BEFORE THE HIGHER APPELLATE AUTHORITY THE ASSESSEE REALIZE D SOMETHING HAD REALLY GONE WRONG WITH THE VALUATION AND THE GROUPI NG AND THOUGHT IT NECESSARY TO SALVAGE THE SITUATION AND A FRESH VALU ATION WAS DONE, BY THE SAME ERNST & YOUNG, IN MARCH 09. 4. BEFORE DISCUSSING MERITS OF THE CASE, AO DISCUSSED THE VARIOUS CLAUSES OF BTA AND HELD AS UNDER: AS CAN BE SEEN FROM THE ABOVE THAT THE GOODWILL WA S DETERMINED AS THE DIFFERENCE BETWEEN THE PURCHASE CONSIDERATION A ND THE VALUE OF TANK BILL, FIXED ASSET, NET CURRENT ASSETS, INVESTM ENTS, DEFERRED REVENUE EXPENDITURES AND NON-COMPETE COMPENSATION AND ACCOR DINGLY, VALUED AT RS. 71 CRORES. THE GOODWILL WAS COMPUTED BY E&Y ON SIMPLE ARITHMETIC AND NOT BASED ON ANY SCIENTIFIC CALCULAT ION. NO DISCUSSION WAS MADE IN THE REPORT ON THE UNDERLINED FACTORS BY WHICH THE PURPORTED GOODWILL AROSE AND WAS TRANSFERRED BY IHC L AND ITS AFFILIATES TO TACL. 4.1 AFTER ANALYZING VARIOUS AGREEMENTS, MENTIONED AT PA RA 3, AO ARRIVED AT THE CONCLUSION THAT QUESTION OF VALUING SO CALLED INTANGIBLE ASSETS IN THE HANDS OF THE ASSESSEE SEPARATELY DID NOT ARISE AND THAT THE VALUATION DATED 23-03-2009 BY M/S. ERNST & YOUN G PVT. LTD. COULD NOT BE ACCEPTED, THAT THE WHOLE EXERCISE OF B REAKING UP AND VALUING THE GOODWILL WAS AN AFTERTHOUGHT AFTER LOSI NG THE CLAIM AT THE FIRST APPELLATE STAGE TO DEFEAT THE REVENUE. SO,HE DISALLOWED THE CLAIM OF DEPRECIATION MADE BY THE ASSESSEE FOR THE AY 200 3-04 IN FOLLOWING WORDS: IT WAS ONLY WHEN THE CIT(A) HAS UPHELD THE ASSESSI NG OFFICERS ORDER ON THIS GROUND AND DURING THE COURSE OF APPELLATE P ROCEEDINGS BEFORE THE HONBLE ITAT, THE ASSESSE HAS SUDDENLY REALIZED THAT THERE WERE M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 5 INTANGIBLE ASSETS THAT WERE INCLUDED IN THE VALUE O F RS. 73.74 CRORES WHICH WAS LOOSELY GROUPED AS GOODWILL. 4.2 ON THE SAME DAY I.E.,ON 26-10-2010, AO PASSED ORDER FOR THE A.Y. 2006-07 ALSO. ASSESSEE PREFERRED AN APPEAL BE FORE THE FAA FOR THE A.Y. 2003-04, WHEREAS APPEAL FOR AY 2006-07 WAS FILED BEFORE THE TRIBUNAL AS THE ORDER WAS PASSED IN PURSUANCE OF TH E DIRECTIONS OF DRP, MUMBAI. 5. DECIDING THE APPEAL FOR THE A.Y. 2006-07, TRIBUNAL EXTENSIVELY DISCUSSED THE ORDER OF THE AO AND HELD AS UNDER : IN GROUNDS OF APPEAL NO.3, THE ASSESSEE HAS CHALLEN GED THE ORDER OF THE AO IN NOT ALLOWING THE CLAIM OF DEPRECIATION OF RS. 7,77,77,860/- ON VARIOUS INTANGIBLE ASSETS GROUPED UNDER THE HEAD GOODWILL. 5.1 FACTS OF THE CASE, IN BRIEF ARE THAT THE ASSESS EE HAS CLAIMED DEPRECIATION OF RS. 17,91,79,623/- U/S. 32 READ WIT H I.T. RULES, 1962. FROM THE WORKING OF THE DEPRECIATION CHART FILED BY THE ASSESSEE, THE AO NOTED THAT THE ASSESSEE HAS CLAIMED DEPRECIATION OF RS. 7,77,77,860/- ON GOODWILL. THE AO OBSERVED THAT DURING THE ASSES SMENT YEAR 2005- 06, THE AO IN THE ORDER PASSED U/S. 143(3) DATED 18 -12-2008 HAS DISALLOWED DEPRECIATION OF RS. 10,37,03,814/- FOR T HE DETAILED REASONS MENTIONED THEREIN. HE, THEREFORE, ASKED THE ASSESS EE TO SHOW CAUSE AS TO WHY THE DEPRECIATION ON GOODWILL SHOULD NOT BE D ISALLOWED. 5.2 IT WAS SUBMITTED BY THE ASSESSEE THAT TAJ SATS HAS RECOGNIZED GOODWILL OF RS. 73,74,49,343/- IN THE BOOKS AT THE TIME OF FORMATION OF THE JOINT VENTURE. THE ASSESSEE HAS CLAIMED DEPREC IATION ON VARIOUS INTANGIBLES/RIGHTS GROUPED UNDER THE HEAD GOODWILL IN THE BOOKS AMOUNTING TO RS. 7,77,77,860/- FOR THE ASSESSMENT Y EAR 2006-07. IT WAS SUBMITTED THAT THE BUSINESS OF INDIAN HOTELS CO MPANY LIMITED (IHCL) WAS ACQUIRED BY THE ASSESSEE AS A GOING CONC ERN. TAJ SATS IS A JOINT VENTURE BETWEEN INDIAN HOTELS COMPANY LTD., A ND SINGAPORE AIR TERMINUS SERVICES LIMITED. IHCL WAS CARRYING ON CA TERING BUSINESS THROUGH THEIR AIR CATERING UNITS LOCATED AT DIFFERE NT PLACES IN INDIA. THE ASSESSEE HAD PURCHASED THE CATERING BUSINESS OF THE IHCL ON 01-10- 2001 VIDE BUSINESS TRANSFER AGREEMENT (BTA) DATED 2 5-09-2001. TAJ SATS ACQUIRED THE GOING CONCERN BUSINESS AND THE OW NERSHIP OF VARIOUS BUSINESS/COMMERCIAL RIGHTS WHICH ARE CONNECTED WITH IHCLS BUSINESS. THE CONSIDERATION PAID TO IHCL INCLUDES CONSIDERATI ON FOR VARIOUS BUSINESS/COMMERCIAL RIGHTS WHICH ARE DESCRIBED AS GOODWILL ON A CONSOLIDATED BASIS. IT WAS SUBMITTED THAT TAJ SATS SUBSEQUENTLY HAS GOT THE VALUATION DONE OF THE VARIOUS INTANGIBLES/R IGHTS WHICH WERE PREVIOUSLY GROUPED UNDER THE HEAD GOODWILL WHICH ARE AS UNDER: M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 6 S.NO. INTANGIBLES AMOUNT (IN CRORES) I. RIGHT TO USE TAJ BRAND NAME AND THE MARK (HEXAGON) IN PERPETUITY 30.8 II. CORPORATE PROCUREMENT AGREEMENT WITH IHCL RIGHT TO AVAIL SERVICES 9.5 III. OPERATING AGREEMENT WITH TAJ MADRAS FLIGHT KITCHEN RIGHT TO MANAGE THE AIR CATERING UNIT 3.2 IV. LEASE AGREEMENT FOR DELHI KITCHEN 1.3 V. RECIPES 2.0 VI. LICENSES TO OPERATE KITCHEN AT MUMBAI, KOLKATA AND NEW DELHI 0.1 VII. VALUABLE WORK FORCE 2.6 VIII. GOODWILL 21.4 TOTAL 71.0 REFERRING TO PROVISIONS OF SECTION 32 IT WAS SUBMIT TED THAT VARIOUS INTANGIBLES/RIGHTS ENUMERATED ABOVE ARE INTANGIBLE ASSETS SPECIFICALLY COVERED U/S. 32 OF THE I.T.ACT. IT WAS SUBMITTED T HAT ANY OTHER BUSINESS OR COMMERCIAL RIGHTS OF SIMILAR NATURE HAVE ALSO BE EN COVERED WITHIN THE AMBIT OF SECTION 32 ALTHOUGH THE SAME IS NOT SPECIF ICALLY DEFINED IN THE ACT OR IN THE RULES. 5.3 HOWEVER, THE AO WAS NOT CONVINCED WITH THE EXPL ANATION GIVEN BY THE ASSESSEE. HE OBSERVED THAT THE TAX AUDITORS IN THE TAX AUDIT REPORT DATED 28-10-2005 WITHOUT ANY QUALIFICATION H AS NOT CONSIDERED DEPRECIATION ON GOODWILL AS ALLOWABLE DEDUCTION. A CCORDING TO THE AO WHEN ANY BUSINESS IS TAKEN OVER AS A GOING CONCERN, IT INCLUDES TAKING OVER OF ALL ASSETS AND LIABILITIES INCLUDING THE VA RIOUS COMMERCIAL RIGHTS AND LICENSES. THE CONSIDERATION IS NOT PAID INDEPE NDENTLY FOR EACH ASSET OR LIABILITY. THE ASSESSEE ALSO HAS NOT PAID SEPARATELY FOR ANY OTHER INTANGIBLE RIGHT OR FOR NON-COMPETE FEES OR F OR ACQUIRING ANY TECHNICAL KNOW-HOW. THE CONSIDERATION SO PAID BY T HE ASSESSEE DOES NOT INCLUDE ACQUISITION OF ANY GOODWILL ALREADY EXI STING IN THE BOOKS OF IHCL. THE LICENSES AND COMMERCIAL RIGHTS SO ACQUIRE D AS A GOING BUSINESS CONCERN ARE INCIDENTAL TO THE BUSINESS OF THE ASSESSEE I.E., AIR CATERING AND INSTITUTIONAL CATERING REFERRING TO TH E VARIOUS DECISIONS CITED BEFORE HIM, THE AO OBSERVED THAT IT IS A DEBA TABLE SUBJECT WHETHER GOODWILL IS AN INTANGIBLE ASSET OR WHETHER ACQUISIT ION OF COMMERCIAL RIGHTS AND INTEREST IS A GOODWILL. M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 7 5.4 THE AO NOTED THAT THE ISSUE HAD COME UP FOR THE FIRST TIME DURING THE ASSESSMENT YEAR 2003-04, WHEREIN THE ASSESSEE H AD CLAIMED DEPRECIATION OF RS.18,43,62,335/-ON GOODWILL OF RS. 73,74,49,343/-.THE SAME WAS DISALLOWED BY THE AO ON THE GROUND THAT TH E PROVISIONS OF SECTION 32(1) DO NOT INCLUDE GOODWILL AS AN INTANGI BLE ASSET QUALIFYING FOR DEPRECIATION. THE CIT(A) UPHELD THE ACTION OF THE AO. BEFORE THE TRIBUNAL, THE ASSESSEE FURNISHED THE VARUATION REPO RT DATED 23-03-2009 PROVIDED BY VALUER M/S. ERNST & YOUNG PVT. LTD., WH O HAS MADE SEPARATE VALUATION FOR EACH OF THE INTANGIBLE ASSET S AS AN ADDITIONAL EVIDENCE AND SUBMITTED THAT THE SAID VALUATION HAS TO BE TAKEN INTO CONSIDERATION AND THEN ONLY A DECISION CAN TO BE TA KEN ON THE ALLOWABILITY OR OTHERWISE OF DEPRECIATION U/S. 32(1 )(II) OF THE I.T.ACT.THE TRIBUNAL AFTER ADMITTING THE ADDITIONAL EVIDENCE, R ESTORED THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION. 5.5 THE AO NOTED FROM THE VALUATION REPORT DATED 23 -03-2009 THAT THE VALUER HAS ANALYSED AND IDENTIFIED INTANGIBLE A SSETS OF TAJ AIR CATERERS LTD., AS ON 30-09-2001. HE OBSERVED THAT THE VALUERS HAD VALUED INTANGIBLE ASSETS AS UNDER: S.NO. INTANGIBLES VALUE (IN RS. CRORES) REMARKS 1. RIGHT TO USE TAJ BRAND NAME 30.8 TACL HAS NON- EXCLUSIVE ROYALTY FREE LICENSE TO USE THE NAME (TAJ) AND THE MARK (THE HEXAGON) IN PERPETUITY. 2. CORPORATE PROCUREMENT AGREEMENT WITH IHCL 9.5 TACL HAS RIGHTS TO AVAIL THE SERVICES FROM IHCL IN RELATION TO SOURCING AND PROCUREMENT AS REQUIRED FOR ITS BUSINESS 3. OPERATING AGREEMENT WITH TMFK 3.2 TACL GETS OPERATING FEES TO MANAGE THE AIR CATERING UNIT OF TMFK. 4. LEASE AGREEMENT FOR DELHI KITCHEN 1.3 TACL HAS 30 YEARS (10 YEARS EXTENDABLE) RIGHT IN LEASEHOLD LAND MEASURING 14440 SQ.MT. LOCATED AT DELHI INTERNATIONAL AIRPORT. 5. RECIPES 2.0 TACL HAS INVESTED IN M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 8 R&D OF IN-HOUSE RECIPES DEVELOPED OVER A PERIOD OF 5 YEARS. 6. LICENSES 0.1 TACL HAS LICENSES TO OPERATE KITCHEN AT MUMBAI, KOLKATA AND NEW DELHI 7. WORK FORCE 2.6 TACL HAS VALUABLE WORK FORCE AT MUMBAI, NEW DELHI AND KOLKATA WHICH IS VALUED AS PART OF GOODWILL. TOTAL 49.6 5.6 ACCORDING TO THE AO, THE ASSESSEE HAD ACQUIRED THE CATERING BUSINESS OF INDIAN HOTELS COMPANY LIMITED, A JOINT VENTURE BETWEEN INDIAN HOTELS COMPANY LTD., AND SINGAPORE AIR TERMI NUS SERVICES LIMITED VIDE BUSINESS TRANSFER AGREEMENT DATED 25-0 9-2001. THE CONTRACTS FOR ACQUIRING THE VARIOUS ASSETS WERE AVA ILABLE TO THE ASSESSEE AT THE TIME OF MAKING ORIGINAL VALUATION, INCLUDING THAT OF GOODWILL. THE SAID CONTRACTS WERE INCLUDED IN THE ORIGINAL VALUATION. THE ASSESSEE HAS VALUED VARIOUS ASSETS INCLUDING GO ODWILL WHICH WAS VALUED AT RS. 73,74,49,345/- AS ON 01-04-2002. THE ASSESSEE DID NOT BRING IN ANY OTHER ASSETS IN THE VALUE OF RS. 73.74 CRORES AT THE TIME OF ACQUIRING THE BUSINESS. THE ASSESSEE DID NOT BRING IN ANY OTHER ASSETS IN THE SAID VALUE DURING THE COURSE OF ASSESSMENT P ROCEEDINGS NOR IT WAS ARGUED BEFORE THE AO THAT VARIOUS INTANGIBLE AS SETS WERE INCLUDED IN THE VALUE OF RS. 73.74 CRORES. NO SUCH ARGUMENT S WERE ADVANCED BEFORE THE CIT(A) DURING THE COURSE OF APPELLATE PR OCEEDINGS. IT WAS ONLY WHEN THE CIT(A) UPHELD THE ORDER OF THE AO ON THIS GROUND THAT THE ASSESSEE SUDDENLY REALIZED THAT THERE WERE INTANGIB LE ASSETS THAT WERE INCLUDED IN THE VALUE OF RS. 73.74 CRORES WHICH WAS LOOSELY GROUPED AS GOODWILL AND FILED THE VALUATION REPORT BEFORE TH E TRIBUNAL. THIS CLEARLY SHOWS THAT THIS IS AN AFTER THOUGHT OF THE ASSESSEE . 5.7 AFTER NARRATING THE FACTS OF THE CASE TRIBUNAL DECI DED THE ISSUE OF DEPRECIATION AS UNDER : WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND THE DRP AND THE PA PER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE TRIBUNAL IN THE ASSESS EES OWN CASE FOR THE ASSESSMENT YEAR 2003-04 WHILE SETTING ASIDE THE ISS UE TO THE FILE OF THE A.O. HAS OBSERVED AS UNDER :- THIS EVIDENCE IN OUR HUMBLE OPINION GOES INTO THE ROOT OF THE MATTER. FROM THE ASSESSMENT ORDER IT CAN BE CLEARLY SEEN THAT THE M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 9 ASSESSING OFFICER HAD NOTICED FROM THE RECITALS IN THE BUSINESS TRANSFER AGREEMENT, THAT INTELLECTUAL PROPERTIES WH ICH ARE LISTED OUT IN ARTICLE 1. SUB CLAUSE B HAVE BEEN TRANSFERRE D ALONG WITH OTHER MOVABLE AND IMMOVABLE ASSETS. EVEN ARTICLE 2. SUB CLAUSES B AND E MENTION A LIST OF INTANGIBLE ASSETS, WHICH HAVE BEEN AGGREGATED AND LOOSELY TERMED AS GOODWILL BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT. THUS THE FACT THAT SLUMP SALE CONSISTS OF MANY INTANGIBLE ASSETS ALONG WITH GOODWILL IS NOT I N DISPUTE. IT IS TRUE THAT NO DEPRECIATION IS ALLOWABLE ON GOODWILL. BUT AT THE SAME TIME, THE LEGISLATURE PROVIDES THAT DEPRECIATI ON SHOULD BE ALLOWED ON ALL OTHER INTANGIBLE ASSETS OTHER THAN G OODWILL. THE ASSESSEES ADDITIONAL EVIDENCE THROWS LIGHT ON THE VALUATION OF EACH OF THE INTANGIBLE ASSETS: SUCH EVIDENCE GOES I NTO THE ROOT OF THE MATTER FOR THE PURPOSE OF ARRIVING AT A DECISIO N AS TO WHETHER THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 32(1)(II ) OF THE ACT AND IF SO, THE QUANTUM OF DEPRECIATION THAT HE IS ENTITLED TO. THUS, WE ADMIT THIS ADDITIONAL EVIDENCE AND REMIT THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATIO N IN ACCORDANCE WITH LAW. 5.8 FROM THE ABOVE IT IS CLEAR THAT THE TRIBUNAL HAS CA TEGORICALLY HELD THAT NO DEPRECIATION IS ALLOWABLE ON GOODWILL. THE ASSESSEE HAS NOT CHALLENGED THE ABOVE FINDING OF THE TRIBUNAL BEFORE THE HON'BLE HIGH COURT AND HAS ACCEPTED THE SAME. THIS BEING SO IT H AS TO BE HELD THAT NO DEPRECIATION IS ALLOWABLE ON GOODWILL IN CASE OF THE ASSESSEE. THE VARIOUS DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE TO THE PROPOSITION THAT DEPRECIATION IS ALLOWABLE ON GOODW ILL DOES NOT HOLD GOOD UNDER THE PRESENT FACTS AND CIRCUMSTANCES OF T HE CASE. 5.9 SO FAR AS THE BIFURCATION OF VARIOUS ITEMS I.E. INT ANGIBLE ASSETS WHICH ACCORDING TO THE LD. A.R. WERE LOOSELY WORDED AS GOODWILL IN THE EARLIER AGREEMENT, WE FIND THE ASSESSEE FURNISHED T HE VALUATION REPORT OF THE VALUERS AFTER 8 YEARS OF THE BUSINESS TRANSF ER AGREEMENT. EVEN THE VALUERS IN THE SAID VALUATION REPORT HAS MENTIO NED THAT THEY ARE PREPARING THE SAME AT THE INSTANCE OF THE ASSESSEE AND ON THE BASIS OF THE MATERIAL PROVIDED TO THEM BY THE ASSESSEE. THEY HAVE NOT DONE ANY INDEPENDENT ENQUIRY. THE RELEVANT PORTION OF THE DI SCLAIMER BY THE VALUER AT PAGES 18 & 19 OF THE VALUATION REPORT (PA GE 87 & 88 OF THE PAPER BOOK) READS AS UNDER :- IN THE COURSE OF THE VALUATION, E&Y WERE PROVIDED WITH BOTH WRITTEN AND VERBAL INFORMATION, INCLUDING MARKET, T ECHNICAL, FINANCIAL AND OPERATING DATA. WE HAVE HOWEVER, EVAL UATED THE INFORMATION PROVIDED TO US BY THE COMPANY THROUGH B ROAD INQUIRY, ANALYSIS AND REVIEW (BUT HAVE NOT CARRIED OUT A DUE DILIGENCE OR AUDIT OF THE COMPANY FOR THE PURPOSE O F THIS ENGAGEMENT, NOR HAVE WE INDEPENDENTLY INVESTIGATED OR OTHERWISE VERIFIED THE DATA PROVIDED). THROUGH THE ABOVE M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 10 EVALUATION, NOTHING HAS COME TO OUR ATTENTION TO IN DICATE THAT THE INFORMATION PROVIDED WAS MATERIALLY MIS-STATED/INCO RRECT OR WOULD NOT AFFORD REASONABLE GROUNDS UPON WHICH TO B ASE THE REPORT. WE DO NOT IMPLY AND IT SHOULD NOT BE CONSTR UED THAT WE HAVE VERIFIED ANY OF THE INFORMATION PROVIDED TO US , OR THAT OUR INQUIRIES COULD HAVE VERIFIED ANY MATTER, WHICH A M ORE EXTENSIVE EXAMINATION MIGHT DISCLOSE. WE ARE NOT RESPONSIBLE FOR ARITHMETICAL ACCURACY/LOGICAL CONSISTENCY OF ANY FI NANCIAL MODEL OR BUSINESS PLAN PROVIDED BY THE COMPANY AND USED I N OUR VALUATION ANALYSIS. THE TERMS OF OUR ENGAGEMENT WER E SUCH THAT WE WERE ENTITLED TO RELY UPON THE INFORMATION PROVI DED BY THE COMPANY WITHOUT DETAILED INQUIRY. ALSO, WE HAVE BEE N GIVEN TO UNDERSTAND BY THE MANAGEMENT THAT IT HAS NOT OMITTE D ANY RELEVANT AND MATERIAL FACTORS AND THAT IT HAS CHECK ED OUT RELEVANCE OR MATERIALITY OF ANY SPECIFIC INFORMATIO N TO THE PRESENT EXERCISE WITH US IN CASE OF ANY DOUBT. ACCORDINGLY , WE DO NOT EXPRESS ANY OPINION OR OFFER ANY FORM OF ASSURANCE REGARDING ITS ACCURACY ANY COMPLETENESS. OUR CONCLUSIONS ARE BAS ED ON THESE ASSUMPTIONS, FORECASTS AND OTHER INFORMATION GIVEN BY/ON BEHALF OF THE COMPANY. THE MANAGEMENT OF THE COMPANY HAS I NDICATED TO US THAT IT HAS UNDERSTOOD THAT ANY OMISSION, INA CCURACIES OR MISSTATEMENTS MAY MATERIALLY AFFECT OUR VALUATION ANALYSIS/RESULTS. ACCORDINGLY, WE ASSUME NO RESPONS IBILITY FOR ANY ERRORS IN THE ABOVE INFORMATION FURNISHED BY TH E COMPANY AND THEIR IMPACT ON THE PRESENT EXERCISE. ALSO, WE ASSUME NO RESPONSIBILITY FOR TECHNICAL INFORMATION FURNISHED BY THE COMPANY AND BELIEVED TO BE RELIABLE. WE EXPRESS NO OPINION ON THE ACHIEVABILITY OF THE F ORECASTS GIVEN TO US. THE ASSUMPTIONS USED IN THEIR PREPARATION, A S WE HAVE BEEN EXPLAINED, ARE BASED ON THE MANAGEMENTS PRESE NT EXPECTATION OF BOTH-THE MOST LIKELY SET OF FUTURE B USINESS EVENTS AND CIRCUMSTANCES AND THE MANAGEMENTS COURSE OF AC TION RELATED TO THEM. IT IS USUALLY THE CASE THAT SOME E VENTS AND CIRCUMSTANCES DO NOT OCCUR AS EXPECTED OR ARE NOT A NTICIPATED. THEREFORE, ACTUAL RESULTS DURING THE FORECAST PERIO D MAY DIFFER FROM THE FORECAST AND SUCH DIFFERENCES MAY BE MATER IAL. NO INVESTIGATION OF THE COMPANYS CLAIM TO TITLE TO ASSETS HAS BEEN MADE FOR THE PURPOSE OF THIS VALUATION AND THE COMPANYS CLAIM TO SUCH RIGHTS HAS BEEN ASSUMED TO BE VALID. NO CONSIDERATION HAS BEEN GIVEN TO LIENS OR ENCUMBRANC ES AGAINST THE ASSETS, BEYOND THE LOANS DISCLOSED IN THE ACCOU NTS. THEREFORE, NO RESPONSIBILITY IS ASSUMED FOR MATTERS OF A LEGAL NATURE. 5.10 FROM THE ABOVE IT IS CLEAR THAT THE VALUATION DONE BY THE VALUERS WAS AT THE INSTANCE OF THE ASSESSEE COMPANY WITH NO OBLIGATION AND RESPONSIBILITY ON THEIR PART AND ITS PREPARATION AF TER A GAP OF EIGHT YEARS M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 11 AND THAT TOO AFTER THE ORDER PASSED BY THE CIT(A) R EJECTING THE CLAIM OF DEPRECIATION ON GOODWILL CLEARLY AN AFTER THOUGHT A S OBSERVED BY THE A.O. FURTHER DEPRECIATION CAN BE CLAIMED ON ASSETS APPEARING IN THE BALANCE SHEET ON WHICH DEPRECIATION WAS ALLOWED IN THE PAST. IT IS A FACT THAT NO DEPRECIATION WAS CLAIMED OR ALLOWED O N INTANGIBLE ASSETS IN THE PRECEDING YEARS.THE ASSESSEE HAD CLAIMED DEP RECIATION ONLY ON GOODWILL IN THE ASSESSMENT YEAR 2003-04 AND ONWARDS WHICH WAS DENIED BY THE A.O. THEREFORE, WHEN DEPRECIATION HAS NEITHER BEEN CLAIMED NOR ALLOWED ON INTANGIBLE ASSETS IN THE PRE CEDING YEARS THE ASSESSEE, IN OUR OPINION, CANNOT BE ALLOWED TO CLAI M DEPRECIATION ON INTANGIBLE ASSETS IN THE IMPUGNED ASSESSMENT YEAR. IN THIS VIEW OF THE MATTER WE UPHOLD THE ORDER OF THE AO IN DISALLOWING DEPRECIATION ON GOODWILL AND OTHER INTANGIBLE ASSETS. WE ALSO UPHOL D HIS ORDER IN REJECTING THE CLAIM OF THE ASSESSEE OF THE BIFURCAT ION OF GOODWILL INTO INTANGIBLE ASSETS AND GOODWILL AS PER THE VALUATION REPORT AS AN AFTERTHOUGHT. WE HOLD ACCORDINGLY. THE GROUNDS ON T HIS ISSUE BY THE ASSESSEE ARE ACCORDINGLY DISMISSED. 6. BEFORE US,AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT RECIPIENT OF BUSINESS I.E.,ASSESSEE HAD VALUED THE ASSETS AFTER TOOK IT OVER,THAT THE EARLIER VALUATION WAS NOT DONE AT THE BEHEST OF THE APPELLANT THOUGH DONE BY THE SAME VALUER, THAT VALU ATION DATED 23.03.2009 WAS NOT AN AFTERTHOUGHT, THAT BENCH SHOU LD HAVE FOLLOWED EARLIER ORDER, THAT SINCE A.Y. 2003-04 (FIRST YEAR OF BUSINESS) DEPRECIATION WAS CLAIMED REGULARLY, THAT DISCLAIMER CLAUSE WAS WRONGLY RELIED UPON, THAT VALUATION OF ASSETS WAS A LWAYS DONE BY THE PURCHASER, THAT TRIBUNAL ERRED IN HOLDING THAT NO D EPRECIATION WAS ALLOWABLE IF NO CLAIM WAS MADE OR ALLOWED IN PREVIO US YEARS.HE RELIED UPON CASES OF HONDA SIEL POWER PRODUCTS LTD.295 ITR 466 (SC), RAMESH CHANDRA MODI 249 ITR323 (RAJ.), KESORAM INDU STRIES 271ITR501(KOL.) AND188 ITR 1GODLAS NAROLAC 188ITR1( BOM.). IN SHORT, HIS SUBMISSION WAS THAT FOLLOWING THE EARLIE R ORDER PASSED FOR AY 2003-04 TRIBUNAL SHOULD HAVE ALLOWED CLAIM OF DE PRECIATION AND THAT DISALLOWANCE OF THE SAID CLAIM WAS A MISTAKE A PPARENT FORM RECORD. DR SUBMITTED THAT NO MISTAKE WAS APPARENT FROM THE RECORD, THAT BY FILING APPLICATION U/S.254(2) ASSESSEE WANT ED THE TRIBUNAL TO REVIEW ITS EARLIER ORDER,THAT EVEN IF THERE WAS MIS TAKE OF JUDGMENT BY THE EARLIER BENCH SUBSEQUENT BENCH OF THE TRIBUNAL WAS NOT EMPOWERED TO RECTIFY IT, HE RELIED UPON THE CASE OF RAMESH ELECTRIC AND TRADING CO. (203 ITR 497). 6.1. IN OUR HUMBLE OPINION RECTIFICATION OF MISTAKE APP ARENT FROM THE RECORD APPEARING IN TAX STATUES, IS NOT A SEV EN WORDED SENTENCE, IT IS A CONCEPT. A FEW INGREDIENTS OF THE CONCEPT ARE-FIRST OF ALL THERE SHOULD BE A MISTAKE, SECONDLY, IT SHOULD BE APPAREN T FORM THE RECORD AND FINALLY IT SHOULD BE RECTIFIABLE. HERE, UNDERS TANDING OF HISTORY, M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 12 PHILOSOPHY AND BASIC PRINCIPLES RELATED WITH RECTIF ICATION OF MISTAKES WILL BE USEFUL. THE BASIC REASON BEHIND INCORPORA TING PROVISIONS OF RECTIFICATIONS OF MISTAKES IN TAXATION JURISPRUDE NCE IS RECOGNISATION OF THE UNIVERSAL AND ETERNAL TRUTH THAT TO ERR IS HUMA N. CLEAR AND UNAMBIGUOUS MANDATE OF THE JUDICIARY IN THIS RESPEC T IS THAT BARRING A FEW INCURABLE MISTAKES ALL OTHER MISTAKES ARISING OUT OF TAX DISPUTES SHOULD BE RECTIFIED AS SOON AS POSSIBLE. PERPETUATI NG MISTAKES WAS NEVER CONSIDERED BRAVERY IN TAX RELATED MATTERS. PE RHAPS, BECAUSE OF THAT UNDERSTANDING RECTIFICATION PROVISIONS FOUND P LACE IN THE ACT XXII OF 1860 ALSO-SUB SECTIONS 2-5 OF SEC.LVI OF THE SAI D ACT WERE ABOUT CORRECTING THE MISTAKES OF ASSESSMENT. SECTION 35 O F THE 1922 THE INDIAN INCOME-TAX,ACT WAS PRELUDE TO PRESENT RECTIF ICATION PROVISIONS OF TAX STATUTES (SEC.154,254(2) OF IT ACT, SEC.34 O F GT ACT,SEC.35 OF WT ACT). RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL. 6.2 NOT ONLY AO.S,BUT APPELLATE AUTHORITIES ALSO HAVE BEEN CONFERRED WITH RECTIFICATION POWERS BY PRESENT TAX-LAWS. ALTH OUGH ORDER XLVII, RULE 1 OF CIVIL PROCEDURE CODE (CPC)ALSO PROVIDES F OR RECTIFICATION OF MISTAKES, BUT SCOPE OF CPC IS NARROWER THAN THE TAX ATION ACTS. PROVISIONS OF CPC TALK OF RECTIFICATION OF MISTAKE APPARENT ON THE FACE OF RECORD , WHEREAS TAXATION LAWS ARE ABOUT RECTIFICATION OF MISTAKES APPARENT FROM RECORD . MISTAKE APPARENT FROM RECORD MEANS A MISTAKE THAT CAN BE DECIDED WITHOUT TAKING HELP OF EXTERNAL SOURCES.A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQU IRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH IT , CAN BE SAID TO BE AN MISTAKE APPARENT FROM THE RECORD AND CAN BE CORR ECTED WHILE DECIDING APPLICATION U/S.254(2). AN ERROR APPARENT ON THE RECORD MEANS AN ERROR WHICH STRIKES ONE ON MERE LOOKING AN D DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. TO PUT IT DIFFERENTLY , IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. A FEW IMPORTANT PRINCIPALS RELATED TO RECTIFICATION CAN BE ENUMERATED AS UNDER- I). AS FAR AS POWER OF RECTIFICATION BY TRIBUNAL IS CON CERNED IT IS SLIGHTLY DIFFERENT FROM THE POWERS OF THE AO AND TH E FAA. SECTION 154, GOVERING THE POWERS OF RECTIFICATION OF MISTAKES OF THE AOS AND THE FAAS, DEALS WITH TWO SITUATIONS. IN FIRST SITUATION THEY NOTICE SOME MISTAKE IN THE ORDERS PASSED BY THEM AND RECTIFY IT . IN THE SECOND RECTIFICATION IS DONE WHEN ASSESSEE OR AO/ASSESEES POINT OUT A MISTAKE IN AN ORDER PASSED BY THEM. BUT IN THE CAS E OF TRIBUNAL RECTIFICATION CAN BE CARRIED OUT ONLY WHEN AN APPEL LANTS OR THE RESPONDENTS BRING THE MISTAKE TO THE NOTICE OF THE TRIBUNAL. THUS, SCOPE FOR RECTIFICATION UNDER 254 IS LIMITED AS COM PARED TO SECTION 154. FROM THE LAW DEVELOPED OVER THE YEARS WITH RE GARD TO RECTIFICATION PROVISIONS IT CAN BE SAFELY STATED TH AT IN SPITE OF VERY WIDE M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 13 POWERS TRIBUNAL CANNOT ORDINARILY RECALL ITS ORDER OR REVIEW ITS ORDER WHILE DECIDING THE APPLICATIONS FILED U/S.254(2) OF THE ACT. II). RECTIFICATION ORDER PASSED IN LIGHT OF THE SUB SEQUENT ORDER OF A JURISDICTIONAL HC OR SUPREME COURT IS CONSIDERED TO BE AS PER THE PROVISIONS OF LAW. III). NON CONSIDERATION OF FACTS IS NOT A FACTOR FO R INVOKING JURISDICTION U/S. 254(2) OF THE ACT. BUT, NON-CONSI DERATION OF A MATTER CITED BEFORE THE BENCH HAVING SUBSTANTIVE EFFECT ON THE OUTCOME OF THE CASE IS DEFINITELY A MISTAKE APPARENT FORM THE RECO RD. IV). AN ERROR OF JUDGMENT IS NOT CONSIDERED A MISTA KE APPARENT FORM RECORD. ERROR OF JUDGMENT HAS ITS OWN MEANING IN TA X JURISPRUDENCE. V). PARTIES BEFORE THE TRIBUNAL CANNOT REARGUE THE ENTIRE MATTER IN THE NAME OF RECTIFICATION OF MISTAKES. VI). ANNULLING AN ORDER PASSED BY THE TRIBUNAL IS G OVERNED BY RULE 24 OF THE ITAT RULES AND SECTION 254(2) IS NOT A SU BSTITUTE FOR IT.THE SCOPE AND AMBIT OF APPLICATION OF SECTION 254(2)OF THE ACT IS VERY LIMITED.IT IS RESTRICTED TO RECTIFICATION OF MISTAK ES APPARENT FROM THE RECORD. POWER TO RECALL AN ORDER IS PRESCRIBED IN T ERMS OF RULE 24 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES, 1963, AND TH AT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASON ABLE CAUSE FOR BEING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX PARTE. VII). IN THE ABSENCE OF ANY SPECIFIC POWER CONFERRE D BY THE STATUTE OR INFERRED BY IMPLICATION, THE TRIBUNAL WHICH HAS BEE N CONSTITUTED UNDER THE ACT, CANNOT EXERCISE ANY POWER OF REVIEW. NO SUCH POWER CAN BE INFERRED BY IMPLICATION NOR IS THERE ANY SPE CIFIC PROVISION, INCLUDING SEC.254(2), IN THE ACT PROVIDING FOR REVI EW. VIII). THE TRIBUNAL, WHILE EXERCISING THE POWER OF RECTIFICATION U/S. 254(2) OF THE ACT, CAN RECALL ITS ORDER IN ENTIRETY IF IT IS SATISFIED THAT PREJUDICE HAS RESULTED TO THE PARTY WHICH IS ATTRIB UTABLE TO THE TRIBUNAL'S MISTAKE, ERROR OR OMISSION AND WHICH ERR OR IS A MANIFEST ERROR . 6.3 NOW,WE WOULD LIKE TO DISCUSS THE ISSUE UNDER CONS IDERATION AND THE CASES RELIED UPON BY THE AR.IN THE PRESENT CASE TRIBUNAL HAD ADMITTED ADDITIONAL EVIDENCES AND HAD SENT THEM TO THE AO FOR PASSING AN ORDER AFTER CONSIDERING THEM. AO AFTER DELIBERATING UPON THE NEW EVIDENCES REACHED TO A CONCLUSION FOR THE A Y 2003-04 AS WELL AS FOR AY 2006-07. AFTER DISCUSSING THE ADDITIONAL EVIDENCES AT LENGTH HE HELD THAT CLAIM MADE BY THE ASSESSEE WAS NOT ALL OWABLE.TRIBUNAL WHILE DECIDING THE APPEAL FOR 2006-07 UPHELD THE OR DER OF THE AO. IN M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 14 OUR OPINION TRIBUNAL HAS TAKEN AN INFORMED DECISION AFTER CONSIDERING THE MATERIAL BEFORE IT I.E. ORDER OF AO, DIRECTIONS OF DRP, SUBMISSIONS OF THE ASSESSEE AND ABOVE ALL THE ORDER ADMITTING T HE ADDITIONAL EVIDENCES. APPELLANT IS OF THE VIEW THAT TRIBUNAL S HOULD HAVE DECIDED THE MATTER IN A PARTICULAR MANNER. THE VIEWS OF THE ASSESSEE,HOWEVER STRONG, CANNOT FORM BASIS FOR INVOKING SECTION 254( 2).AFTER APPRECIATING THE ARGUMENTS OF BOTH THE SIDES, IF TR IBUNAL ARRIVES AT A PARTICULAR DECISION IT CANNOT BE TERMED AS A MISTAK E APPARENT FROM RECORD. AS STATED EARLIER EVEN IF THERE IS A ERROR OF JUDGMENT IN THE ORDER OF THE TRIBUNAL SAME CANNOT BE RECTIFIED U/S. 254(2). LET US CLARIFY THAT OUR OBSERVATION DO NOT MEAN THAT THERE WAS ERROR OF JUDGMENT ON PART OF THE TRIBUNAL WHEN IT PASSED ORD ER FOR AY 2006- 07. WHAT WE WANT TO SAY IS THAT EVEN IF ARGUMENT O F THE ASSESSEE FOR SO CALLED FIVE ERRORS/MISTAKES CONSIDERED, IT WILL BE ONLY AN ERROR OF JUDGMENT OR NON CONSIDERATION OF ARGUMENTS, BUT IT CANNOT BE TERMED A MISTAKE APPARENT FORM RECORD. IN OUR OPINION IN S UCH SITUATION FILING AN APPEAL U/S. 260 A OF THE ACT IS THE ONLY REMEDY. WE CANNOT REHEAR THE MATTER CONSIDERING THE FACTS AND CIRCUMSTANCES IN WHICH THE PRESENT MATTER WAS HEARD AND DECIDED BY THE TRIBUNA L FOR THE AY 2006-07. 6.3.1. AT THIS JUNCTURE PERUSAL OF RULE 29 WOULD BE USEFUL . IT READS AS UNDER : THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE ADDITIONAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFO RE THE TRIBUNAL, BUT IF THE TRIBUNAL REQUIRES ANY DOCUMENT S TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED OR ANY AFFID AVIT TO BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR, IF THE INCOME-TAX AUTHORITIES HAVE DECIDED THE CASE WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO AD DUCE EVIDENCE EITHER ON POINTS SPECIFIED BY THEM OR NOT SPECIFIED BY THEM, THE TRIBUNAL, FOR REASONS TO BE RECORDED, MAY ALLOW SUC H DOCUMENT TO BE PRODUCED OR WITNESS TO BE EXAMINED OR AFFIDAVIT TO BE FILED OR MAY ALLOW SUCH EVIDENCE TO BE ADDUCED. IN OUR OPINION ABOVE REFERRED SECTION SAYS THAT WHE NEVER, A PRIMA- FACIE CASE IS MADE BEFORE THE TRIBUNAL THAT CERTAIN DOCUMENTS/AFFIDAVIT WILL BE USEFUL FOR DECIDING AN ISSUE ARGUED BEFORE IT, TRIBUNAL MAY ADMIT THE SAME OR IT MAY DIRECT TH E LOWER AUTHORITIES TO EXAMINE THE DOCUMENTS/AFFIDAVIT. DIRECTION OF TH E TRIBUNAL TO THE FAA/AO IN THIS REGARD IS A NEUTRAL ACTION. BY SEND ING THE ADDITIONAL EVIDENCE TO LOWER AUTHORITIES, TRIBUNAL WANTS THEM TO GO THROUGH THEM THOROUGHLY AND TO ARRIVE AT A CONCLUSION IN LI GHT OF THE FRESH EVIDENCE. WE ARE OF THE OPINION THAT ORDER ADMITTIN G ADDITIONAL EVIDENCE IS NOT AN ORDER OF BINDING NATURE AND DOES NOT ACT AS PRECEDENT. FINAL ORDER, PASSED BY THE TRIBUNAL AFT ER APPRECIATING THE M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 15 ADDITIONAL EVIDENCES/AFFIDAVIT, DECIDES THE ISSUE A RGUED BEFORE IT AND SUCH AN ORDER WORKS AS PRECEDENT. WHILE ADMITTING ADDITIONAL EVIDENCES TRIBUNAL HAD O BSERVED THAT EVIDENCES PRODUCED BY THE ASSESSEE WERE OF TH E NATURE THAT WENT INTO THE ROOT OF THE MATTER FOR THE PURPOSE OF ARRI VING AT A DECISION AS TO WHETHER THE ASSESSEE WAS ENTITLED FOR DEDUCTION U/S 32(1)(II) OF THE ACT AND IF SO, THE QUANTUM OF DEPRECIATION THAT IT WAS ENTITLED TO. AFTER ADMITTING THE ADDITIONAL EVIDENCE TRIBUNAL REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDIC ATION IN ACCORDANCE WITH LAW.(EMPHASIS BY US). BY OBSERVING WHETHER ENTITLED TO TRIBUNAL HAS LEFT THE QUESTION OPEN FOR THE AO TO D ECIDE THE ISSUE ON MERITS. TRIBUNAL HAD NOT DECIDED THE ISSUE IN FAVO UR OF THE ASSESSEE. HAD IT BEEN SO, THEN THERE WAS NO NEED TOREMIT THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. IF FRESH ADJUDICATION HAD TO BE PASSED BY THE AO IN ACCORDA NCE WITH LAW,THEN,IN OUR HUMBLE OPINION ISSUE WAS WIDE OPEN AND NOT DECIDED AT ALL.ORDER PASSED BY E BENCH OF THE TRIBUNAL (SUP RA)WAS THE FINAL ORDER IN RESPECT OF THE CLAIM OF DEPRECIATION MADE BY THE ASSESSEE.IN OUR OPINION THERE IS NO MISTAKE IN THE SAID ORDER O F THE TRIBUNAL THAT CAN BE RECTIFIED U/S.254(2) OF THE ACT. 6.3.2. WE WOULD ALSO LIKE TO DISCUSS THE CASES RELIED UPON BY THE AR. FIRST AMONG THEM IS MATTER OF HONDA SIEL POWER PRODUCTS LTD.IN THAT CASE AN ORDER OF A COORDINATING BENCH, GRANTIN G RELIEF TO THE ASSESSEE ON THE SAME ISSUE AND CITED BEFORE THE TRI BUNAL WAS, IGNORED BY IT. TRIBUNAL DISALLOWED THE CLAIM MADE BY THE A SSESSEE. WHEN THESE FACTS WERE BROUGHT TO THE NOTICE OF THE TRIBU NAL IT PASSED AN ORDER U/S. 254(2) OF THE ACT. THE DEPARTMENT PREFER RED AN APPEAL TO THE HIGH COURT AND THE HIGH COURT SET ASIDE THE ORD ER OF THE TRIBUNAL HOLDING THAT THE POWER TO RECTIFY ANY MISTAKE WAS N OT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RE CTIFIED. ASSESSEE FILED AN APPEAL BEFORE THE HONBLE SUPREME COURT AND IT W AS HELD THAT NON CONSIDERATION OF THE ORDER OF THE COORDINATION BENC H THAT WAS CITED BEFORE THE TRIBUNAL WAS A MANIFEST ERROR. HONBL E SC RESTORED THE ORDER OF THE TRIBUNAL BY REVERSING THE ORDER OF HO NBLE HIGH COURT OF DELHI.IF WE CONSIDER THE FACTS OF THE CASE UNDER CO NSIDERATION, WE FIND THAT NO ORDER OF COORDINATING BENCH WAS AVAILABLE T O THE E BENCH OF TRIBUNAL-WHAT WAS AVAILABLE WAS AN INTERIM ORDER PA SSED IN PECULIAR CIRCUMSTANCES. ASSESSEE FOR THE FIRST TIME BEFORE T HE TRIBUNAL SUBMITTED SOME DOCUMENTS STATING THAT SAME WOULD HA VE DIRECT BEARING ON THE APPELLATE PROCEEDINGS.UNDER RULE 29 OF THE ITAT, RULES, 1963 SAID DOCUMENTS WERE ADMITTED BY THE TRI BUNAL AS ADDITIONAL EVIDENCE AND WERE FORWARDED TO THE AO. IN OUR HUMBLE OPINION ADMITTING AN ADDITIONAL EVIDENCE IS AND CAN NOT BE EQUATED WITH PASSING AN EFFECTIVE AND SUBSTANTIVE FINAL ORD ER.SECONDLY, WHILE PASSING THE ORDER E BENCH DID NOT IGNORE THE ORDER ADMITTING THE ADDITIONAL EVIDENCE-RATHER IT IS VERY MUCH PART OF THE ORDER. IN THESE M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 16 CIRCUMSTANCES, WE ARE OF THE OPINION THAT ORDER OF THE E BENCH OF THE TRIBUNAL (SUPRA) CANNOT BE RECTIFIED U/S.254(2) OF THE ACT. FULL BENCH OF HONBLE DELHI HC HAS ANALYSED THE MAT TER OF HONDA IN THE CASE OF LACHMAN DASS BHATIA HINGWALA (P.) LTD.( 330ITR243) AS UNDER : IN HONDA SIEL POWER PRODUCTS LTD. [2007] 293 ITR 1 32 (DELHI) THE HIGH COURT CONSIDERED THE CONTENTION THAT THE RECAL L OF THE TRIBUNAL'S ENTIRE DECISION WAS PROHIBITED ON THE BASIS THAT IN THE GARB OF RECTIFICATION, THE ORDER CANNOT BE RECALLED. THE AP PLICATION FOR RECTIFICATION WAS FILED AS THE TRIBUNAL HAD NOT TAK EN NOTE OF A BINDING PRECEDENT THOUGH IT WAS CITED BEFORE THE TRIBUNAL. IN THAT FACTUAL BACKGROUND, THE SUPREME COURT HELD THAT THE POWER O F RECTIFICATION HAS BEEN CONFERRED ON THE TRIBUNAL TO SEE THAT NO P REJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEARING BEFORE IT BY ITS DECISION BASED ON A MISTAKE APPARENT FROM THE RECORD AND THAT ATONEMENT TO THE WRONGED PARTY BY THE COURT OR THE TRIBUNAL FOR THE WRONG CO MMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER TO REVIEW. THE COURT TOOK NOTE OF THE FACT THAT THE TRIBUNAL COMMITTED A MISTAKE IN NOT CONSIDERING MATERIAL WHICH WAS ALREADY ON RECORD AN D THE TRIBUNAL ACKNOWLEDGED ITS MISTAKE AND ACCORDINGLY RECTIFIED ITS ORDER. THE DECISION OF THE SUPREME COURT IN HONDA SIEL POWER P RODUCTS LTD. V. CIT [2007] 295 ITR 466 IS AN AUTHORITY FOR THE PROP OSITION THAT THE TRIBUNAL IN CERTAIN CIRCUMSTANCES CAN RECALL ITS OW N ORDER AND SECTION 254(2) OF THE ACT DOES NOT TOTALLY PROHIBIT SO.DECI SIONS WHICH LAY DOWN THE PRINCIPLE THAT THE TRIBUNAL UNDER NO CIRCUMSTAN CES CAN RECALL ITS ORDER IN ENTIRETY DO NOT LAY DOWN THE CORRECT STATE MENT OF LAW. THERE IS NO DOUBT THAT RULE OF PRECEDENCE SHOULD BE ADHERED TO, AS HELD BY THE HONBLE SC IN THE CASE OF HONDA (SUP RA), BUT, SUCH PRECEDENCE IS FOR FINAL ORDERS PASSED BY THE ADJUDI CATING AUTHORITIES, NOT FOR THE ORDERS PASSED FOR ADMITTING ADDITIONAL EVIDENCES. II). IN THE CASE OF RAMESH CHAND MODI (SUPRA) GROUN DS OF APPEAL NO. 31 TO 34 TAKEN BY THE ASSESSEE REMAINED UNDECID ED.ASSESSEE FILED AN APPLICATION U/S. 254(2) OF THE ACT AND TRIBUNAL PASSED RECTIFICATION ORDER ADMITTING THAT THE GROUNDS REFERRED TO IN THE MEMO OF APPEAL TAKEN BY THE ASSESSEE REMAIN UNDECIDED ,THAT THE SAID GROUND WENT TO THE VERY BASIS OF THE ORDER AND THAT THOUGH THE SAID GROUND WAS TAKEN BY THE ASSESSEE IN HIS APPEAL IT COULD NOT BE CONSIDERED DUE TO OVER-SIGHT. ORDER PASSED BY THE TRIBUNAL WAS CHAL LENGED BY REVENUE BEFORE THE HONBLE HC. DECIDING THE MATTER HONBLE HC OBSERVED AS UNDER: M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 17 WHERE THE TRIBUNAL FAILS TO DECIDE SOME OF THE QUE STIONS RAISED BEFORE IT INADVERTENTLY OR BY OVERSIGHT, THE ONLY A PPROPRIATE METHOD OF CORRECTING SUCH MISTAKE IS TO RECALL THE ORDER AND MAKE A FRESH ORDER AFTER AFFORDING AN OPPORTUNITY OF HEA RING TO SUCH PARTY. IN ALL SUCH CASES, ORDINARILY THE COURT OR T RIBUNAL ACTS EX DEBITO JUSTITIAE TO PREVENT ABUSE OF PROCESS EVEN I N THE ABSENCE OF ANY POWER. ONCE A MISTAKE ON THE FACE OF THE RECORD IS ESTABLI SHED WHAT ORDER SHOULD FOLLOW TO CORRECT THAT MISTAKE SHALL A LWAYS DEPEND ON THE FACTS AND CIRCUMSTANCES REQUIRED TO RECTIFY THE MISTAKE. IF THE MISTAKE IS ONE WHICH REQUIRES DETERMINATION OF SOME UNDECIDED ISSUE BECAUSE IT HAS NOT BEEN DECIDED THO UGH RAISED, THE PROCEDURE THAT WOULD FOLLOW THE DISCOVERY OF SU CH MISTAKES IS TO RECALL THE ORDER AND DECIDE THE CASE AFRESH OR T O DECIDE THAT ISSUE AFTER AFFORDING AN OPPORTUNITY TO THE PARTIES CONCERNED AND PASS A FRESH ORDER IN THE LIGHT OF FINDING ON SUCH ISSUE. THE ORDER UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, I S NOT CONFINED TO ARITHMETICAL OR CLERICAL MISTAKES, NOR ONLY TO C ORRECT SUBSTANTIVE MISTAKES BUT ALSO PROCEDURAL MISTAKES. IN OUR OPINION THE FACTS OF THE PRESENT CASE ARE C LEARLY DISTINGUISHABLE FROM THE CASE OF RAMESH CHAND MODI (SUPRA). IN THAT CASE GROUND OF APPEAL TAKEN WAS NOT CONSIDERED BY T HE TRIBUNAL. IN ORDER TO UNDO THE INJUSTICE, TRIBUNAL PASSED RECTIF ICATION ORDER. IN OUR OPINION CASE OF RAMESH CHAND IS OF NO HELP IN DECID ING THE MATTER BEFORE US. III). IN THE MATTER OF KESORAM INDUSTRIES LTD., (SU PRA) ORDERS OF THE FAA HAD ATTAINED FINALITY. AO DID NOT GIVE FULL EFF ECT TO THE SAID ORDER OF THE FAA. AN APPEAL WAS PREFERRED AGAINST THE OR DER OF THE AO. FAA AGAIN DIRECTED TO GIVE FULL EFFECT. REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER DIRECTING IMPLEMENTATION OF EARLIER ORDER. WHILE DECIDING THE APPEAL, TRIBUNAL PASSED ORDER PE RTAINING TO ASSESSMENT YEARS FOR WHICH ASSESSMENT HAD ATTAINED FINALITY. ASSESSEE FILED RECTIFICATION APPLICATION STATING T HAT TRIBUNAL COULD NOT PASS ANY ORDER THAT HAD ATTAINED FINALITY. TRIBUNA L RECTIFIED ITS MISTAKE BY PASSING AN ORDER U/S. 254(2) OF THE ACT, HONBLE CALCUTTA HIGH COURT ENDORSING THE VIEW OF THE ITAT, HELD THA T ORDER PASSED BY THE TRIBUNAL U/S. 254 FOR TWO ASSESSMENT YEARS WAS AS PER PROVISIONS OF LAW. AS STATED EARLIER,IN THE CASE UNDER CONSID ERATION, THERE WAS NO FINALITY OF ORDER ONLY ADDITIONAL EVIDENCES WERE ADMITTED AND WERE SENT TO THE AO FOR FRESH ADJUDICATION. THUS, THE C ASE OF KESORAM (SUPRA) IS ALSO NOT RELEVANT FOR DECIDING THE MATTE R BEFORE US. M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 18 IV). IN THE CASE OF GOODLAS NAROLAC (SUPRA) ISSUE B EFORE THE HONBLE COURT WAS NOT RECTIFICATION OF MISTAKES U/S. 254(2) OF THE ACT. IN THAT MATTER,THE ASSESSEE HAD CLAIMED DEDUCTION OF COMMIS SION PAYMENT AND THE LOSS SUSTAINED BY THE FREEZING OF ITS CREDI T BALANCE IN PAKISTAN.TRIBUNAL ALLOWED BOTH THE CLAIMS. HONBLE KOLKATA HIGH COURT DECLINED TO INTERFERE IN THE SAID ORDERS OF T HE TRIBUNAL BECAUSE TRIBUNAL HAD ARRIVED AT A FINDING OF FACT.IN THE CA SE UNDER CONSIDERATION THERE WAS NO FINALITY TILL THE E BE NCH OF THE TRIBUNAL HAD NOT PASSED THE ORDER REJECTING THE CLAIM MADE B Y THE ASSESSEE. ORDER OF ADMITTING ADDITIONAL EVIDENCE CANNOT BE HE LD A FINAL ORDER. HAVING APPRECIATED THE MATERIAL AND EVIDENCE ON REC ORD WE HAVE ARRIVED AT CONCLUSION THAT APPLICATION FILED BY THE ASSESS DESERVES TO BE REJECTED. APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JULY, 2012. SD/- SD/- (I.P. BANSAL) (RAJENDRA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATE : 18 TH JULY, 2012 TNMM M.A.NO. 108/MUM/2012 (ARISING OUT OF ITA NO. 8500/MUM/2010) TAJ SATS AIR CATERING LTD., 19 COPY TO: 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR E BENCH, ITAT, MUMBAI 6. GUARD FILE (TRUE COPY) BY ORDER ASST. REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI.