M/s Microlabs Ltd., Bangalore V. ACIT, Bangalore

MA 121/BANG/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4401 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-01-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 24-12-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JASON P BOAZ
• Assessee Lawyers: DINESH
• Keywords: Capital expenditure
• Section: 80HHC; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI K.P.T. THANGAL, VICE PRESIDENT AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NO.121/BANG/2009 (IN ITA NO.704/BANG/2008) ASSESSMENT YEAR : 2001-02 M/S. MICROLABS LTD., NO.27, RACE COURSE ROAD, BANGALORE 560 001. : APPELLANT VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE 12(1), BANGALORE. : RESPONDENT APPELLANT BY : SHRI DINESH RESPONDENT BY : SHRI JASON P. BOAZ O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THE ASSESSEE COMPANY HAS COME UP BEFORE US WITH THI S MISC. PETITION [M.P.NO.121/09] WITH A REQUEST TO RECALL THE EARLIE R ORDER OF THIS BENCH IN ITA NO: 704/BANG/2008 DATED: 30.10.2009 FOR THE A SSESSMENT YEAR 2001- 02. 2. THE ISSUES, IN BRIEF, WERE THE CLAIM OF DEDUCTION U /S 80HHC R.W.S.80- IB OF THE ACT. THE ASSESSEES APPEAL WAS DISMISSED BY THIS BENCH VIDE ITA M.P. NO.121/BANG/10 PAGE 2 OF 10 NO.704/B/2008 DATED: 30.10.2009 BY FOLLOWING THE FI NDING OF THE HONBLE TRIBUNAL, DELHI SPECIAL BENCH AND FOR THE REASONS R ECORDED THEREIN. 3. AGGRIEVED, THE ASSESSEE COMPANY HAS NOW COME UP WI TH THE PRESENT MISC. PETITION ON THE GROUND THAT THE ORDER OF THE HONBLE DELHI SPECIAL BENCH REPORTED IN (2009) 315 ITR (AT) 401 SUPPORTS THE CONTENTIONS OF THE ASSESSEE COMPANY AND, THEREFORE, THE ORDER PASSED B Y THIS BENCH SUFFERS FROM MISTAKE, RECTIFIABLE WITHIN THE MEANING OF S.2 54(2) OF THE ACT. 3.1. AFTER DUE CONSIDERATION OF THE ASSESSEE COMPA NYS PLEA, THE MISC. PETITION OF THE ASSESSEE COMPANY IS ADMITTED AND T HE REGISTRY WAS DIRECTED TO TAKE THE MISC. PETITION ON RECORD AND LIST THE SAME FOR ADJUDICATION. 4. DURING THE COURSE OF HEARING, THE SUBMISSIONS MA DE BY THE EITHER PARTY WERE DULY CONSIDERED. BRIEF : I. (I) THE ISSUES INVOLVED WERE THE CLA IM OF DEDUCTION U/S 80HHC RWS 80-IB OF THE ACT. THE ASSESSEE HAD THREE UNITS ONE AT PONDICHERRY, KUMBALGOD AND AT HOSUR UNIT AND APPLICABLE DEDUCTIO NS UNDER THE AFORESAID SECTIONS CLAIMED FOR EACH UNIT. THE AO HAD RESTRIC TED THE CLAIM FOR DEDUCTION U/S 80HHC AND THE SAME WAS ALLOWED AFTER REDUCING THE DEDUCTION U/S 80IB OF THE ACT. ON AN APPEAL, THE C IT(A) ENDORSED THE VIEW OF THE AO BY RELYING UPON THE DECISION OF THE HON BLE ITAT, CHENNAI (SPECIAL BENCH) REPORTED IN 204 ITR 15. M.P. NO.121/BANG/10 PAGE 3 OF 10 (II) AGGRIEVED, THE ASSESSEE CAME UP BEFORE TH IS BENCH (IN ITA NO.704/08) WHICH AFTER DUE CONSIDERATION OF THE ASS ESSEES ARGUMENTS AND FOLLOWING THE FINDINGS OF THE HONBLE TRIBUNALS REF ERRED THEREIN DISMISSED THE ASSESSEES APPEAL. (III) DISILLUSIONED THE ASSESSEE HAS COME UP WIT H THE PRESENT MISC. PETITION WITH A PLEA THAT - 3 THE ORDER OF THE HONBLE DELHI SPECIAL BENCH SUPPOR TS THE CONTENTIONS OF THE ASSESSEE IN AS MUCH AS THERE IS A CLEAR FINDING TO THE EFFECT INTER ALIA THAT THE RESTRICTION CONTAINED IN S.80-IA AND 80-IB NOT TO ALL THE REPEATED DEDUCTIONS IS APPLICABLE TO SAME PROFIT, THAT THERE HAS TO BE IDENTITY OF PROFITS ON WHICH DEDUCTION UNDER MORE THAN ONE PROV ISION UNDER CH.VI- A IS CLAIMED BY THE ASSESSEE; THAT THE PROVISIONS A RE APPLICABLE WHERE ON THE PROFIT OF THE UNDERTAKING OR ENTERPRISE, THE DEDUCTION WAS CLAIMED U/S 80IA OR 80IB AND THEN ON THE SAME PROFIT OF THE UNDERTAKING, DEDUCTION OTHER PROVISIONS LIKE 80HHC WAS CLAIMED; THAT IN SUCH CASES, RESTRICTION CONTAINED IN THE ABOVE PROVISIONS WOULD APPLY; THAT IF PROFITS ARE DERIVED FROM SEPARATE UNDERTAKINGS, RESTRICTION CONTAINED IN THE PROVISION WOULD NOT BE APPLICABLE; 4 THAT THE ASSESSEE IS HAVING SEPARATE UNDER-TAKINGS WHICH ARE CLAIMING DEDUCTIONS SEPARATELY, BUT WITHOUT ANY CLAIM OF DOU BLE DEDUCTION UNDER ANY PARTICULAR SECTION. THUS, THE FINDING OF THE S PECIAL BENCH WAS CLEARLY APPLICABLE TO THE CASE ON HAND AND, THEREFO RE, THE ORDER OF THIS BENCH DT: 30-10-2009 SUFFERS FROM MISTAKE WHICH REQ UIRES TO BE RECTIFIED. 4.1 THE LEARNED A.R. RELIED ON THE CASE ACIT VS. HINDUS THAN MINT AND AGRO PRODUCTS (DEL SB) 315 ITR AT 401 PARA 78 AT PAGE 441 WHICH IS HEREBELOW REPRODUCED FOR CONSIDERATION - M.P. NO.121/BANG/10 PAGE 4 OF 10 ' SHRI VOHRA THEN CONTENDED THAT SECTION 80HHC AND SECTION 80-IA OR SECTION 80-IB OPERATE IN DIFFERENT FIELDS IN AS MUCH AS SECTION 80HHC IS APPLICABLE ONLY TO ALL ELIGIBLE UNITS EXPORTING GOODS OR MERCHANDISE WHEREAS SECTIO N 80- IA OR SECTION 80-IB IS APPLICABLE ONLY TO ALL ELIGI BLE UNITS EVEN IF GOODS MANUFACTURED IN THOSE UNITS ARE NOT E XPORTED, AND IN THAT EVENT, THE QUESTION OF REDUCING DEDUCTI ON ALLOWED U/S. 80-IA OR 80-IB WOULD NOT ARISE. SHRI VOHRA HAD PLACED RELIANCE ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF GODREJ AGROVET LTD. VS. A CIT (290 ITR 252). AS FAR AS THIS LIMITED ISSUE IS CON CERNED, WE ARE INCLINED TO AGREE WITH THE SUBMISSION ADVANCED BY SHRI VOHRA. THE RESTRICTIONS CONTAINED IN SECTION 80-IA OR 80- IB NOT TO ALLOW REPEATED DEDUCTIONS ARE APPLICABLE TO SAME PROFIT. THIS IS MORE THAN CLEAR FROM USE OF WORD 'SUCH PROFIT' IN SECTION 80-IA/80-IB. IN OTHER WOR DS, THERE HAS TO BE IDENTITY OF PROFITS ON WHICH DEDUCTION U NDER MORE THAN ONE PROVISION UNDER CHAPTER VI-A IS CLAIM ED BY THE ASSESSEE. THE PROVISIONS ARE APPLICABLE WHERE ON THE PROFIT OF THE UNDERTAKING OR ENTERPRISE, DEDUCTION IS CLAIMED UNDER SECTION 80-IA OR 80-IB AND THEN ON TH E SAME PROFIT OF THE UNDERTAKING, DEDUCTION UNDER OTHER PR OVISIONS LIKE 80HHC IS CLAIMED. IN SUCH CASES, THE RESTRICTI ON CONTAINED IN THE ABOVE PROVISIONS WOULD APPLY. IF THE PROFITS ARE DERIVED FROM A SEPARATE UNDERTAKING, TH E RESTRICTION CONTAINED IN THE ABOVE PROVISION WOULD NOT BE APPLICABLE.' ON PERUSING THE CASE GODREJ AGROVET LT D. VS. ACIT (290 ITR 252), WHEREIN RELIANCE WAS PLACED BY SHRI VOHRA, WE FIND THAT THE RATIO SET IN THE CASE WAS ON DIFFERENT CONTEXT AND FACTS. THE RELEVA NT PORTIONS ARE HEREBELOW M.P. NO.121/BANG/10 PAGE 5 OF 10 EXTRACTED : 'HELD, THAT THE FACT THAT SOME OF THE UNITS OF THE ASSESSEE WERE INCURRING LOSSES HAD NO RELEVANCE FOR COMPUTAT ION OF DEDUCTION U/S. 80HHC. ADMITTEDLY, THERE WERE PROFI TS FROM THE EXPORT ACTIVITY AND, THEREFORE, DEDUCTION GRANT ED U/S. 80HHC COULD NOT BE FAULTED. IT WAS ADMITTED THAT T HE ASSESSEE HAD NOT MADE EXPORTS OF THE GOODS MANUFACT URED IN THE INDUSTRIAL UNITS ELIGIBLE FOR DEDUCTION U/S. 80 IB. IF THE GOODS MANUFACTURED IN THE UNITS AVAILING OF DEDUCTI ON U/S. 80 IB WERE NOT EXPORTED, THEN OBVIOUSLY THE GOODS MANUFACTURED IN THOSE UNITS WOULD NOT BE TAKEN INTO ACCOUNT FOR COMPUTATION OF DEDUCTION U/S. 80HHC. IN THAT E VENT, THE QUESTION OF APPLYING THE PRINCIPLES LAID DOWN IN SE CTION 80- IA (9) WHILE COMPUTING THE DEDUCTION U/S. 80HHC DID NOT ARISE AT ALL. THUS, FROM THE REASONS RECORDED AND THE AFFIDAVIT IN REPLY FILED ON BEHALF OF THE REVENUE, IT WAS SEEN THAT THERE WERE NO REASONS ON THE BASIS OF WHICH PR IMA FACIE IT COULD BE SAID THAT INCOME HAD ESCAPED ASSESSMENT .' THE RATIO LAID DOWN IN THIS CASE IS THAT, WHEN THE ASSESSEE HAS DIFFERENT UNITS AND IF AN UNIT NOT HAVING EXPORT TURNOVER CLAIMS DE DUCTION U/S. 80IB AND SUFFERS LOSS, THEN THAT UNIT WOULD NOT BE TAKEN INT O ACCOUNT FOR COMPUTATION OF DEDUCTION U/S. 80HHC. THUS, THE ASSESSEE IS NOT DEPRIVED OF LOWER DEDUCTION ON ACCOUNT OF THE LOSS SUFFERED BY A NON- EXPORT UNIT. ON THE SAME BREATH THE HON'BLE BENCH ANSWERED THE QUESTION RAIS ED ' WHETHER IN VIEW OF THE PROVISIONS OF SECTION 80IA(9) READ WITH SECTION 80IB(13), THE DEDUCTION OF INCOME UNDER CHAPTER VIA CAN BE ALLOWED ON THE E NTIRE PROFITS AND GAINS OF AN UNDERTAKING OR AN ENTERPRISE OF AN ASSESSEE O R IT IS TO BE ALLOWED ON M.P. NO.121/BANG/10 PAGE 6 OF 10 SUCH PROFITS AND GAINS AS ARE REDUCED BY THE DEDUCT ION CLAIMED AND ALLOWED UNDER SECTION 80IB/80IA' IN FAVOUR OF THE REVENUE BY HOLDING THAT THE DEDUCTION TO BE ALLOWED UNDER ANY OTHER PROVISIONS OF CHAPTER VIA WITH THE HEADING 'C' IS TO BE REDUCED BY AMOUNT OF DEDUCTION ALLOWED UNDER SECTION 80IB/80IA OF THE INCOME-TAX ACT. 4.2 WE HAVE DULY CONSIDERED THE SUBMISSION OF THE LD. A R AND ALSO THE LD. D.R PRESENT. AFTER CAREFUL PERUSAL O F THE RELEVANT PORTION OF EARLIER ORDER OF THIS BENCH, AND DECISION OF THE CA SE LAWS EXTENSIVELY QUOTED BY LEARNED A.R., WE ARE OF THE CONSIDERED VIEW THAT OUR EARLIER FINDING DOES NOT SUFFER FROM ANY INFIRMITY WHICH REQUIRES TO BE CURED. WE, THEREFORE, REJECT THE ASSESSEES CLAIM ON THIS COUNT AND THAT OUR EARLIER DECISION DOESNT REQUIRE ANY MODIFICATION AND, THEREFORE, RECONFIRME D. 5.1 WITH REGARD TO THE OTHER ISSUE, THE GRIEVAN CE OF THE ASSESSEE IS THAT DURING THE COURSE OF ARGUMENT, RELIANCE WAS PLACED ON VARIOUS CASE LAWS, NOTABLY, IN THE CASE OF BUSH BOAKE ALLEN (INDIA) LT D. V. ACIT REPORTED IN (2005) 273 ITR 152 (MADRAS) WHICH HAS NOT BEEN CONS IDERED BY THIS BENCH WHILE DECIDING THE ISSUE IN THE ORIGINAL APPEAL. THE SUBMISSION OF THE ASSESSEE IS THAT IN THE CASE OF BUSH BOAKE ALLEN, THE ISSUE WAS WITH REGARD TO THE APPORTIONMENT OF EXPEN DITURE AND THAT THE MATTER WAS REMITTED BACK ON THE FILE OF THE TRIBUNA L WITH A FINDING THAT THERE WERE NO R & D EXPENSES AT ONE OF THE UNITS FOR WHIC H THE R & D WAS CARRIED OUT AT THE OTHER UNIT WITH REGARD TO THE PR ODUCT MANUFACTURED AT THE FIRST UNIT. IT WAS FURTHER OBSERVED THAT THE TRIBU NAL SHALL DETERMINE AS TO M.P. NO.121/BANG/10 PAGE 7 OF 10 WHETHER THERE WAS ANY R & D UNDERTAKEN WITH REGARD TO THE PRODUCT MANUFACTURED IN THAT PARTICULAR UNIT, WITH A FURTHE R OBSERVATION THAT IF THE SAME DID NOT PERTAIN TO THE PRODUCT MANUFACTURED ON LY THEN THE ALLOCATION OF EXPENSES TO THAT UNIT WAS NOT JUSTIFIED. IT WAS, TH EREFORE, PLEADED THAT THE RULING OF THE HONBLE MADRAS HIGH COURT BE TAKEN IN TO COGNIZANCE AND RENDER JUSTICE TO THE ASSESSEE. THE ISSUE BEFORE THE HONBLE HIGH COURT OF MADRAS W AS THAT - THE ASSESSEE IS A COMPANY CARRYING ON BUSINESS IN T HE MANUFACTURE AND SALE OF FLAVOURS, ESSENCE, ETC. FOR THE ASSESSMENT YEAR 1989-90, THE COMPANY FILED A RETURN, IN WHICH, A CLAIM OF DEDUCTION UNDE R SECTIONS 80HH, AND 80-I OF THE INCOME-TAX ACT, 1961, WAS MADE. IN THE ASSES SMENT MADE, THE ASSESSING OFFICER ALLOCATED A SUM OF RS. 54,92,889 AS EXPENDITURE ON RESEARCH AND DEVELOPMENT PERTAINING TO CHITTOOR UNI T. THE ASSESSEE'S APPEAL AND FURTHER APPEAL TO THE TRIBUNAL HAVING PROVED UN SUCCESSFUL, THE ASSESSEE IS NOW BEFORE US. IT WAS SUBMITTED THAT THE AMOUNT SO INCLUDED DOES N OT PERTAIN TO THE CHITTOOR UNIT, IN WHICH UNIT THERE IS NO RESEARCH AND DEVELO PMENT ACTIVITY UNDERTAKEN AND CARRIED OUT; THAT REGARDING THE PRODUCTS THAT WERE MANUFACTURED IN CHITTOOR UNIT, NO RESEARCH AND DEVELOPMENT WAS UNDE RTAKEN AT MADRAS AND THAT THEREFORE, THE ALLOCATION OF SOME AMOUNT ON TH AT HEAD TO THE CHITTOOR UNIT WAS NOT WARRANTED. IT IS PERTINENT TO POINT OUT THAT BOTH UNDER SECTIO NS 80HH AND 80-I WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE INCLUDES ANY PROF ITS AND GAINS DERIVED FROM AN INDUSTRIAL UNDERTAKING TO WHICH THAT SECTIO N APPLIES, THERE SHALL BE ALLOWED IN COMPUTING THE TOTAL INCOME OF THE ASSESS EE A DEDUCTION FROM SUCH PROFITS AND GAINS OF AN AMOUNT EQUAL TO 20 PER CENT , THEREOF. THE ASSESSEE CLAIMS BENEFITS UNDER THE ABOVE PROVISIONS AFTER EX CLUDING THE EXPENSES ON RESEARCH AND DEVELOPMENT CARRIED OUT BY IT AT ITS E STABLISHMENT AT MADRAS. THE ASSESSING OFFICER ALLOCATED A SUM OF RS. 54,92, 889 AS EXPENSES FOR THE BENEFIT OF THE CHITTOOR UNIT AS A CONSEQUENCE OF WH ICH THE DEDUCTIONS UNDER SECTIONS 80HH AND 80-I OF THE INCOME-TAX ACT GOT RE DUCED AND THE BURDEN OF TAXATION BECOMES HEAVIER FOR THE ASSESSEE. IT WAS SUBMITTED THAT THERE WAS NO RESEARCH AND DEVELOPMENT EXPENSES AT CHITTOOR UN IT, AND THAT RESEARCH AND DEVELOPMENT CARRIED OUT AT MADRAS WAS NOT WITH REGARD TO THE PRODUCT MANUFACTURED AT CHITTOOR. THIS QUESTION HAS NOT BEE N PROPERLY DEALT WITH IN THE ORDERS OF THE AUTHORITIES CONCERNED. APPORTIONM ENT OF EXPENSES ON ACTIVITIES OF RESEARCH AND DEVELOPMENT TO CHITTOOR UNIT MERELY ON THE PRESUMPTION THAT PRODUCTS MANUFACTURED AT CHITTOOR ALSO HAD THE BENEFIT OF M.P. NO.121/BANG/10 PAGE 8 OF 10 THE RESEARCH MADE AT CHENNAI BY THE RESEARCH AND DE VELOPMENT DEPARTMENT IS NOT PROPER. THERE WAS A PRESUMPTION MADE THAT ANY TECHNOLOGY AB OUT NEW FLAVOURS AND ESSENCE WILL AUTOMATICALLY BE UTILIZED IN CHITTOOR UNIT ALSO WITHOUT EXAMINING AS TO WHETHER THE RESEARCH AND DEVELOPMEN T ACTUALLY CARRIED OUT AT MADRAS WAS OF USE FOR THE UNIT AT CHITTOOR, AS T HE ASSESSEE HAS OTHER MANUFACTURING UNITS BESIDES THE ONE AT CHITTOOR. F OR THE PURPOSE OF DETERMINING AS TO WHETHER AT ALL THERE WAS RESEARCH AND DEVELOPMENT UNDERTAKEN REGARDING THE PRODUCT THAT IS MANUFACTUR ED IN CHITTOOR UNIT, THE MATTER IS TO BE INQUIRED INTO. IF IT DID PERTAIN TO THE PRODUCT MANUFACTURED AT CHITTOOR, ONLY THEN THE ALLOCATION OF THE EXPENSE T O CHITTOOR UNIT WOULD BE JUSTIFIED. 5.2 WE HAVE DULY CONSIDERED THE RULING OF THE HON BLE COURT CITED SUPRA. WITH DUE RESPECTS, ON A CLOSE PERUSAL OF TH E SAID FINDING, WE FIND THAT THE HONBLE COURT HAD RULED THAT - (AT THE COST OF REPETITION) THERE WAS A PRESUMPTION MADE THAT ANY TECHNOLOGY AB OUT NEW FLAVOURS AND ESSENCE WILL AUTOMATICALLY BE UTILIZED IN CHITTOOR UNIT ALSO WITHOUT EXAMINING AS TO WHETHER THE RESEARCH AND DEVELOPMEN T ACTUALLY CARRIED OUT AT MADRAS WAS OF USE FOR THE UNIT AT CHITTOOR, AS T HE ASSESSEE HAS OTHER MANUFACTURING UNITS BESIDES THE ONE AT CHITTOOR. F OR THE PURPOSE OF DETERMINING AS TO WHETHER AT ALL THERE WAS RESEARCH AND DEVELOPMENT UNDERTAKEN REGARDING THE PRODUCT THAT IS MANUFACTUR ED IN CHITTOOR UNIT , THE MATTER IS TO BE INQUIRED INTO. IF IT DID PERTAIN TO THE PRODUCT MANUFACTURED AT CHITTOOR, ONLY THEN THE ALLOCATION OF THE EXPENSE T O CHITTOOR UNIT WOULD BE JUSTIFIED. THE HONBLE COURT WAS OF THE VIEW THAT THE MATTER I S TO BE INQUIRED INTO. WE HAVE POINTED OUT IN OUR ORIGINAL ORDER DATED: 30 .10.2009 AT PARA 6.2. IN RESPECT OF THE ASSESSEES OTHER CONTENTION THAT THE R & D EXPENSES OF RS.1.99 CRORES INCLUDE CAPITAL EXPENDITURE OF RS.99 .15 LAKHS FORMING PART OF DEDUCTION U/S 35(1)(IV) OF THE ACT, THE SAME SHOULD NOT BE CONSIDERED FOR APPORTIONMENT, WE FIND THAT THE LD. CIT(A) WAS MAGN ANIMOUS IN HIS VIEW THAT WHEN ALL OTHER COMMON EXPENSES HAVE BEEN APPO RTIONED ON THE BASIS M.P. NO.121/BANG/10 PAGE 9 OF 10 OF TURNOVER, IT WAS NOT PROPER TO APPORTION ONLY TH E R & D EXPENSES ON THE BASIS OF THE PROFITS OF EACH OF THE UNITS AND JUDI CIOUSLY DIRECTED THE AO TO APPORTION THE SAME ON THE BASIS OF THE TURNOVER OF THE UNITS, IF THE OTHER COMMON EXPENSES HAVE APPORTIONED LIKEWISE. 5.3 CONSIDERING THE FINDING OF THE LD. CIT(A), WE H AVE OBSERVED THAT WE STAND BY THE CIT(A)S ACTION IN DIRECTING THE A O TO APPORTION THE ENTIRE EXPENSES OF RS.1.99 CRORES RELATING TO R & D. IT I S ORDERED ACCORDINGLY. 5.4 WE HAVE DULY CONSIDERED THE SUBMISSION OF THE L D. A R. AFTER CAREFUL PERUSAL OF THE RELEVANT PORTION OF EARLIER ORDER OF THIS BENCH, WE ARE OF THE CONSIDERED VIEW THAT THE SAID FINDING DOESN T SUFFER FROM ANY INFIRMITY WHICH REQUIRES TO BE CURED. WE, THEREFORE, REJECT THE ASSESSEES CLAIM ON THIS COUNT AND THAT OUR EARLIER DECISION DOESNT REQUIRE ANY MODIFICATION AND, THEREFORE, RECONFIRMED. 6. IN THE RESULT, THE MISC. PETITION OF THE ASSESSE E IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF FEBRUARY, 2010. SD/- SD/- ( K.P.T. THANGAL) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 16 TH FEBRUARY, 2010. DS/- M.P. NO.121/BANG/10 PAGE 10 OF 10 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.