KEWAL KIRAN CLOTHING LTD, V. ADDL CIT RG 9(2),

MA 540/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9462 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 21-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANISH KANOJIA
• Keywords: Capital asset; Business expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI RAJENDRA SINGH (ACCOUNTANT MEMBER) M.A.NOS.539 & 540/M/2012) (ARISING OUT OF ITA NO.44/MUM/2009 & I.T.A. NO.7141 /M/2008) ASSESSMENT YEAR: 2005-06 KEWAL KIRAN CLOTHING LIMITED, 101, SYNTHOFINE INDL. ESTATE, BEHIND VIRWANI INDL. ESTATE, GOREGOAN(E), MUMBAI-63 PA NO.AAACK 3402 H DCIT 9(2), AAYAKAR BHAVAN, M.K.ROAD, MUMBAI (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI YOGESH THAR RESPONDENT BY: SHRI MANISH KANOJIA DATE OF HEARING: 16.11.2012 DATE OF PRONOUNCEMENT: 21 . 11.2012 ORDER PER B.R.MITTAL, JM: THE ASSESSEE HAS FILED THESE TWO MISCELLANEOUS APPL ICATIONS RELATING TO ASSESSMENT YEAR 2005-06. M.A. NO.539/M/2012 PERTAI NS TO ORDER PASSED BY THE TRIBUNAL IN THE APPEAL FILED BY DEPARTMENT BEING I. T.A. NO.44/M/2009 AND WHEREAS M.A.NO.540/M/2012 RELATES TO THE APPEAL FILED BY AS SESSEE BEING I.T.A. NO.7141/M/2008. THE TRIBUNAL BY ITS ORDER DATED 25 .7.2012 PASSED A COMMON ORDER TO DECIDE THE AFORESAID CROSS APPEALS FILED BY DEPARTM ENT AS WELL AS ASSESSEE. 2. FIRSTLY, WE TAKE UP M.A. NO.539/M/2012. 3. THE TRIBUNAL WHILE DECIDING THE APPEAL OF DEPART MENT HAS CONFIRMED THE ACTION OF AO TO ALLOCATE THE EXPENSES BETWEEN TWO UNITS OF THE ASSESSEE ON THE BASIS OF TURNOVER FOR COMPUTING DEDUCTION ALLOWABLE TO THE A SSESSEE U/S.80IB OF THE ACT IN RESPECT OF DAMAN UNIT. IT IS RELEVANT TO STATE THA T ASSESSEE HAS TWO UNITS I.E. ONE AT MUMBAI AND OTHER AT DAMAN. THE UNIT AT DAMAN IS EL IGIBLE FOR DEDUCTION U/S.80IB OF M.A.NOS.539 & 540/M/2010) (ARISING OUT OF ITA NO.44/MUM/2009 & I.T.A. NO.7141 /M/2008) ASSESSMENT YEAR: 2005-06 2 THE ACT. AO STATED THAT IT IS NOT POSSIBLE TO EXAC TLY QUANTIFY THE BENEFITS ARISING TO THE ASSESSEE FROM THE EXPENSES INCURRED SEPARATELY FOR MUMBAI UNIT AND DAMAN UNIT AND, ACCORDINGLY, ALLOCATED THE EXPENSES BETWEEN MUMBAI UNIT AND DAMAN UNIT ON THE BASIS OF TURNOVER. THE TRIBUNAL WHILE DECIDING THE SAID ISSUE CONFIRMED THE ACTION OF AO BY FOLLOWING THE DECISION OF A COORDINATE BENCH IN THE CASE OF NITCO TILES LTD VS DCIT, 30 SOT 47 (MUM) AND RELEVANT PARAS OF THE TRIBUNAL VIZ PARA 15 AND 15.1 OF ITS ORDER READ AS UNDER: 15. WE OBSERVE THAT AO HAS SPECIFICALLY POINTED O UT THE HEADS OF EXPENSES FOR WHICH THE TOTAL EXPENDITURE HAS BEEN INCURRED B Y THE ASSESSEE. THE AO HAS STATED THE AMOUNT OF EXPENDITURE, WHICH HAS BEEN A LLOCATED BY THE ASSESSEE TO ITS DAMAN UNIT, AND ASSESSEE HAS NOT GIVEN ANY BASI S FOR ALLOCATING SUCH EXPENSES, DETAILS GIVEN HEREINABOVE, TO DAMAN UNIT. THEREFORE, THE AO HAS ADOPTED THE EXPENDITURE FOR EACH OF THE UNIT ON THE BASIS OF TURNOVER AND AFTER DEDUCTING THE ACTUAL EXPENDITURE ALLOCATED BY THE A SSESSEE; HE ARRIVED AT AGGREGATE AMOUNT OF RS.73,45,083, DETAILS GIVEN HER EINABOVE, AND HAS STATED THAT ASSESSEE HAS UNDER ALLOCATED THE EXPENDITURE T O INFLATE PROFITS AND GAINS OF ELIGIBLE UNIT. DURING THE COURSE OF HEARING, LD A. R. COULD NOT GIVE DETAILS ON THE BASIS OF WHICH IT HAS ALLOCATED THE EXPENDITURE UND ER THE HEADS, AS MENTIONED HEREINABOVE, TO ITS DAMAN UNIT. THERE IS NO DISPUT E TO THE FACT THAT WHILE COMPUTING PROFITS AND GAINS OF AN ELIGIBLE BUSINESS , ALL THE DIRECT AS WELL AS INDIRECT EXPENSES HAVE TO BE CONSIDERED FOR COMPUTA TION OF PROFITS AND GAINS OF ELIGIBLE UNIT TO CLAIM DEDUCTION AS PER SECTION 80 IA OF THE ACT. IF EXCESSIVE EXPENDITURE IS CONSIDERED IN RESPECT OF UNIT WHICH IS NOT ELIGIBLE FOR DEDUCTION U/S. 80IA OF THE ACT, IT WILL BE UNFAIR AS PROFIT A ND GAINS OF A UNIT WHICH IS NOT ELIGIBLE FOR DEDUCTION WILL BE UNDERSTATED AND ON T HE OTHER HAND THE PROFITS AND GAINS OF ELIGIBLE UNIT/ BUSINESS WILL BE INFLATED T O GET MORE DEDUCTION U/S.80IA OF THE ACT. ITAT, MUMBAI BENCH IN THE CASE OF NITCO T ILES LTD (SUPRA) CONSIDERED SIMILAR ISSUE AND VIDE ITS HEAD NOTE, IN REGARD TO ALLOCATION OF EXPENSES TO THE ELIGIBLE UNIT AND THE UNIT WHICH IS NOT ELIGIBLE FO R DEDUCTION U/S. 80IB/80IA OF THE ACT OBSERVED AS UNDER: FURTHER, FOR DETERMINATION OF THE ALLOWABLE REVENU E EXPENSES FOR THE PURPOSES OF COMPUTING THE PROFITS AND GAINS OF THE ELIGIBLE BUSINESS OF THE INSTANT ASSESSEE, ALL THE PROVISIONS RELATING T O THE HEAD OF INCOME PROFITS AND GAINS FROM BUSINESS OR PROFESSION WOU LD APPLY WITHOUT ANY MUTATION. IN OTHER WORDS, ALL THE DIRECT AS WELL A S INDIRECT EXPENSES HAD TO BE ADJUSTED FROM THE PROFIT AND GAINS OF THE ELI GIBLE BUSINESS. FURTHER, ON FINDING THAT THE SUB-SECTION(5) REFERS TO PHRASE S I.E. THE PROFITS AND GAINS OF AN ELIGIBLE BUSINESS TO WHICH PROVISIONS O F SUB-SECTION(1) APPLY SHALL BE COMPUTED AS IF SUCH ELIGIBLE BUSINESS WAS THE ONLY SOURCE OF INCOME OF THE ASSESSEE, ONE SHOULD INTERPRET AND U NDERSTAND THEM BY THE MEANING THAT THE STANDALONE UNIT HAS TO BE GIVE N TO SUCH ELIGIBLE BUSINESS. IN OTHER WORDS, AS IF SUCH ELIGIBLE BUS INESS WAS THE ONLY SOURCE OF INCOME SHALL MEAN THAT THE ALLEGED INDIR ECT EXPENDITURE OR COMMON OR HEAD OFFICE EXPENSES WERE INCURRED FOR SU CH ELIGIBLE BUSINESS, THE ONLY SOURCE OF INCOME OF THE ASSESSEE. CONSEQU ENTLY, ALL THE INDIRECT EXPENSES OR COMMON EXPENSES HAVE TO BE CONSIDERED F OR THE SAID M.A.NOS.539 & 540/M/2010) (ARISING OUT OF ITA NO.44/MUM/2009 & I.T.A. NO.7141 /M/2008) ASSESSMENT YEAR: 2005-06 3 COMPUTATION. THUS, THE PROVISIONS OF SECTION 80IB( 1) CONVINCINGLY ADVOCATE FOR THE ALLOCATION OF INDIRECT EXPENSES TO WARDS THE SILVASA UNIT AS WELL. 15.1 IN THE CASE BEFORE US, THERE IS NO DISPUTE TO THE F ACT THAT THE TOTAL TURNOVER OF THE ELIGIBLE UNIT I.E. DAMAN UNIT IS 73 .43%. CONSIDERING THE DECISION OF COORDINATE BENCH OF ITAT IN THE CASE OF NITCO T ILES LTD (SUPRA), WE ARE OF THE CONSIDERED VIEW THAT IT IS FAIR AND REASONABLE TO A LLOCATE THE EXPENSES BETWEEN THE UNITS ON THE BASIS OF TURNOVER IN THE ABSENCE O F ANY CONTRARY FACTS BROUGHT ON RECORD BEFORE US. HENCE, WE HOLD THAT AO HAS RI GHTLY ALLOCATED THE EXPENSES BETWEEN THE UNITS ON THE BASIS OF TURNOVER. HENCE, WE UPHOLD THE ACTION OF AO BY REVERSING ORDER OF LD CIT(A). HENCE, GROUND NO. 3 OF DEPARTMENT IS ALLOWED. 4. ASSESSEE BY ITS APPLICATION HAS STATED THAT ASSE SSEE WAS MAINTAINING SEPARATE BOOKS OF ACCOUNT AND ACTUAL EXPENDITURE OF THE RESP ECTIVE UNIT WAS DEBITED TO RESPECTIVE ACCOUNT AND TURNOVER CRITERIA SHOULD NOT BE FOLLOWE D. THE BASIS OF CONCLUSION ARRIVED AT BY ITAT IN ITS ORDER IS NOT CORRECT AND, THEREFORE, THE TRIBUNAL SHOULD RECALL ITS ORDER AND DECIDE THE GROUND AFRESH. 5. ON THE OTHER HAND, LD D.R. SUBMITTED THAT ITAT H AS PASSED THE ORDER AFTER CONSIDERING ALL THE FACTS AND THE DECISION OF THE AUTHORITIES BELOW. HE SUBMITTED THAT SPECIFIC EXPENSES WERE DEBITED BY ASSESSEE TO ITS D AMAN UNIT WHICH ARE ALLOWABLE FOR DEDUCTION U/S.80IB OF THE ACT. LD D.R. SUBMITTED T HAT ASSESSEE BY THIS APPLICATION WANTS TO REVIEW THE ORDER OF THE TRIBUNAL WHICH IS OUTSIDE THE PURVIEW OF SECTION 254(2) OF THE ACT. PARAS 3 TO 15 DEAL WITH THE ISSUE AS T O WHETHER ASSESSEE HAD DEBITED EXCESS EXPENDITURE IN RESPECT OF WHICH IS ELIGIBLE FOR DE DUCTION U/S.80IB OF THE ACT OR NOT. THE TRIBUNAL AFTER CONSIDERING FACTS OF THE CASE AND BY A REASONED ORDER HAS HELD IN PARA 15.1 THAT AO HAS RIGHTLY ALLOCATED THE EXPENSES BET WEEN THE UNITS ON THE BASIS OF TURNOVER AND, THEREFORE, REVERSED THE ORDER OF LD C IT(A). WE FIND SUBSTANCE IN THE SUBMISSION OF LD D.R. THAT ASSESSEE BY ITS APPLICAT ION WANTS TO REVIEW THE ORDER OF THE TRIBUNAL WHICH IS ADMITTEDLY OUTSIDE THE PURVIEW OF SECTION 254(2) OF THE ACT. THEREFORE, WE DO NOT FIND ANY MERIT IN THE CONTENTI ON OF LD A.R. THAT THERE IS ANY APPARENT MISTAKE IN THE ORDER OF TRIBUNAL. HENCE, WE REJECT THE APPLICATION FILED BY ASSESSEE BEING M.A. NO.539/M/2012. 6. NOW COMING TO M.A. NO.540/M/2012 FILED BY ASSESS EE IN RESPECT OF APPEAL OF ASSESSEE IN I.T.A. NO.7141/M/2008. M.A.NOS.539 & 540/M/2010) (ARISING OUT OF ITA NO.44/MUM/2009 & I.T.A. NO.7141 /M/2008) ASSESSMENT YEAR: 2005-06 4 7. ASSESSEE IN THE APPLICATION HAS STATED THAT IT P ERTAINS TO DISALLOWANCE OF INTEREST ON AMOUNT OF RS.27,00,000/-. ASSESSEE IN THE APPL ICATION HAS STATED THAT THE LOAN OF RS.2 LAKHS GIVEN TO DIPTI ZAVERI WAS OPENING BALANC E FROM THE PREVIOUS YEAR AND SINCE NO DISALLOWANCE WAS MADE IN THE PREVIOUS YEAR ON AC COUNT OF INTEREST, NO DISALLOWANCE WAS WARRANTED IN ASSESSMENT YEAR UNDER CONSIDERATIO N I.E. A.Y. 2005-06. ASSESSEE HAS FURTHER STATED IN THE APPLICATION THAT FOR THE REMA INING AMOUNT OF RS.25,00,000/-, ASSESSEE PLACED RELIANCE ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RELIANCE UTILITIES & POWER LTD., 313 ITR 340(MUM) THAT IT SHOULD BE PRESUMED THAT INVESTMENT HAD BEEN MADE OUT OF OWN FUNDS SINC E THEY WERE MORE THAN SUFFICIENT TO MEET THE INVESTMENT. ASSESSEE HAS FURTHER STATE D IN THE APPLICATION THAT ITS OWN FUNDS WERE RS.8,85,17,242 COMPRISING OF SHARE CAPIT AL OF RS.1 CRORE AND RESERVE AND SURPLUS OF RS.7,85,17,242, WHICH IS MORE THAN SUFFI CIENT TO COVER THE INVESTMENT OF RS.4,48,00,000. ASSESSEE HAS FURTHER STATED THAT T HE TRIBUNAL HAS GIVEN SPECIFIC FINDING IN RESPECT OF MAKING DISALLOWANCE OF INTEREST ONLY FOR 4 DAYS IN THE CASE OF LOAN GIVEN TO KORNERSTONE RETAIL PVT LTD., AND KEWAL KIRAN ENTERP RISES BUT NO SUCH DIRECTION HAS GIVEN FOR BALANCE LOAN OF RS.25 LAKHS AND THE TRIBUNAL SH OULD GIVE DIRECTION TO MAKE THE DISALLOWANCE OF INTEREST ONLY FOR 49 DAYS SINCE THE LOAN WAS GIVEN ON FEBRUARY 10,2005. ASSESSEE HAS STATED THAT IN VIEW OF ABOVE FACTS, TH E TRIBUNAL SHOULD RECALL ITS ORDER FOR THE ABOVE GROUND FOR FRESH DECISION. 8. AT THE TIME OF HEARING, LD A.R. REITERATED ABOVE FACTS AND SUBMITTED THAT ITAT SHOULD GIVE SPECIFIC FINDING OF DAYS FOR MAKING THE DISALLOWANCE IN RESPECT OF LOAN OF RS.27 LAKHS INCLUDING RS.2 LAKHS WHICH WAS THE OPEN ING BALANCE. LD A.R. ALSO REFERRED PAPER BOOK WHICH WAS FILED AT THE TIME OF HEARING O F THE APPEAL. 9. ON THE OTHER HAND, LD D.R. SUBMITTED THAT THERE IS NO AMBIGUITY IN THE ORDER OF THE TRIBUNAL AND THE TRIBUNAL HAS DISCUSSED THIS IS SUE IN DETAIL IN PARA 25 AFTER CONSIDERING ALL THE FACTS. HE SUBMITTED THAT BY TH IS APPLICATION, ASSESSEE WANTS TO REVIEW THE ORDER OF THE TRIBUNAL. 10. WE HAVE CONSIDERED THE SUBMISSIONS OF LD REPRES ENTATIVES OF PARTIES AND CONTENTIONS OF APPLICATION. WE HAVE ALSO GONE THRO UGH PARA 25 OF THE ORDER OF THE TRIBUNAL WHICH READS AS UNDER: M.A.NOS.539 & 540/M/2010) (ARISING OUT OF ITA NO.44/MUM/2009 & I.T.A. NO.7141 /M/2008) ASSESSMENT YEAR: 2005-06 5 25. WE HAVE CONSIDERED SUBMISSIONS OF LD REPRESENT ATIVES OF PARTIES AND ORDERS OF AUTHORITIES BELOW AND ALSO RELEVANT PAGES OF PB (SUPRA). THERE IS NO DISPUTE TO THE FACT THAT HONBLE BOMBAY HIGH COURT HAS HELD IN THE CASE OF CIT VS. AMRITABEN R SHAN(SUPRA) THAT A TAX PAYER BORROW ING MONEY TO ACQUIRE CONTROLLING INTEREST IN A COMPANY WOULD NOT BE ENTI TLED TO DEDUCTION OF INTEREST. FURTHER HONBLE BOMBAY HIGH COURT IN THE CASE OF CH INAL AND CO. PVT.LTD., VS CIT, (SUPRA) HAS HELD EXPENSES INCURRED TO PROTECT INVESTMENT WAS NOT ADMISSIBLE AS BUSINESS EXPENDITURE. AT THE TIME OF HEARING, LD A.R. ALSO DID NOT CONTROVERT ABOVE DECISIONS OF HONBLE JURISDICTIONA L HIGH COURT. WE OBSERVE THAT ASSESSEE PAID A SUM OF RS.2.28 CRORES TO ACQUIRE PU RCHASE OF SHARES OF KORNER STONE RETAILS LTD., AND ALSO PAID RS.1.95 CRORES TO TAKE OVER THE RUNNING BUSINESS OF KEWAL KIRAN ENTERPRISES. THUS, AMOUNT TO THAT E XTENT HAS BEEN PAID BY THE ASSESSEE TO ACQUIRE CAPITAL ASSETS AND AS SUCH, BOR ROWING MONEY USED TO ACQUIRE CONTROLLING INTEREST IN THE ABOVE FIRM BY PURCHASE OF SHARES AND/OR BY ACQUIRING ASSETS COULD NOT BE ALLOWED AS DEDUCTION. HOWEVER, THERE IS FORCE IN THE SUBMISSIONS OF LD A.R. THAT THE SAID AMOUNT WAS PAI D BY THE ASSESSEE ONLY ON 28.3.2005 AND AS SUCH, INTEREST ONLY FOR FOUR DAYS ON THE ABOVE AMOUNT COULD BE DISALLOWED. FURTHER, WE OBSERVE THAT ASSESSEE HAS GIVEN LOAN TO OTHERS AGGREGATING TO RS.1.42 CRORES, BREAK-UP OF WHICH IS GIVEN AT PAGE 26 OF PB. WE OBSERVE THAT ASSESSEE HAS CHARGED INTEREST AS PER S AID CHART ON THE LOAN AGGREGATING TO RS.1,15,52,113 AND AS SUCH, FOR THE BALANCE AMOUNT OF RS.27 LAKHS, NO INTEREST HAS BEEN CHARGED. ACCORDINGLY, INTEREST IS TO BE DISALLOWED ONLY RELATING TO LOAN OF RS.27 LAKHS, WHICH HAS BEE N GIVEN TO OTHERS, ON WHICH, NO INTEREST HAS BEEN CHARGED BY THE ASSESSEE. THE ASSESSEE HAS NOT CONTENDED THAT THE SAID LOANS TO OTHERS HAVE BEEN GIVEN FOR A NY BUSINESS PURPOSES. IN THE ABSENCE OF ANY FACTS ON RECORD THAT ASSESSEE HAS US ED ITS OWN FUND FOR GIVING ABOVE ADVANCES, WE HOLD THAT INTEREST IS TO BE DISA LLOWED ONLY FOR FOUR DAYS IN RESPECT OF SUM OF RS.2.28 CRORES AND RS.1.95 CRORES AND ALSO INTEREST ON THE BALANCE AMOUNT OF RS.27 LAKHS, LOANS GIVEN TO OTHER S. IN VIEW OF ABOVE, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE T HE ISSUE TO THE FILE OF THE AO TO MAKE DISALLOWANCE OF INTEREST ONLY IN RESPECT AB OVE AMOUNT AS INDICTED ABOVE. HENCE, GROUND NO.2 OF APPEAL IS ALLOWED IN PART. 11. WE HAVE ALSO CONSIDERED THE RELEVANT PAGES OF P APER BOOK TO WHICH OUR ATTENTION WAS DRAWN BY LD A.R. AT THE TIME OF HEARI NG OF THIS APPLICATION. IT IS A FACT THAT THE TRIBUNAL HAS GIVEN ITS FINDING THAT THERE ARE N O FACTS ON RECORD BROUGHT BY THE ASSESSEE THAT IT USED ITS OWN FUNDS FOR GIVING ADVA NCE, INTER ALIA, OF RS.27 LAKHS I.E. DIPTI ZAVERI OF RS.2 LAKHS, SMT. RENU AHUJA OF RS.1 6,00,000, SMT. SRICHAND AHUJA OF RS.3,30,000 AND SMT. SHANTI AHUJA OF RS.5,70,000. FURTHER ASSESSEE REFERRED PAGE 27 OF PB, WHICH CONTAINS LEDGER COPY REFLECTING LOAN O F RS.3,30,000 GIVEN TO SHRI SRICHAND AHUJA, RS.16,00,000 TO SMT RENU AHUJA AND RS.5,70,0 00 TO SMT. SHANTI AHUJA. ON PERUSAL THEREOF, IT IS NOT CLEAR ON WHICH DATE SUCH LOANS WERE GIVEN BY THE ASSESSEE AND WHEN THERE WERE REPAID. DURING THE COURSE OF HEARI NG OF THIS APPLICATION, ASSESSEE WAS SPECIFICALLY ASKED AS TO MENTION THE DATE THE LOAN OF RS.2 LAKHS GIVEN DIPTI ZAVERI BY ASSESSEE THOUGH IT IS SHOWN AS OPENING BALANCE AT P AGE 28 OF PB. LD A.R COULD NOT M.A.NOS.539 & 540/M/2010) (ARISING OUT OF ITA NO.44/MUM/2009 & I.T.A. NO.7141 /M/2008) ASSESSMENT YEAR: 2005-06 6 INDICATE THE DATE SAVE AND EXCEPT STATING IT WAS TH E OPENING BALANCE AND NO DISALLOWANCE OF INTEREST WAS MADE IN THE PRECEDING ASSESSMENT YEAR. WE ARE OF THE CONSIDERED VIEW THAT SAID ISSUE HAS BEEN DECIDED BY THE TRIBUNAL AFTER CONSIDERING ALL THE FACTS IN ITS ORDER DATED 25.7.2012 AND THERE IS NO APPARENT MISTAKE. MOREOVER, THE TRIBUNAL HAS RESTORED THE ISSUE OF DISALLOWANCE OF INTEREST OF RS.27 LAKHS TO THE FILE OF AO FOR COMPUTING THE DISALLOWANCE OF INTEREST TO BE MADE. THEREFORE, NO FURTHER CLARIFICATION IS REQUIRED IN THE MATTER AS THE ASSE SSEE IS TO FILE REQUISITE DETAILS BEFORE THE AO WHILE AO GIVE EFFECT TO THE ORDER OF THE TRIBU NAL. ACCORDINGLY, WE REJECT THIS APPLICATION OF THE ASSESSEE. 12. IN THE RESULT, BOTH M.A.S ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 21 ST NOVEMBER, 2012 SD/- (RAJENDRA SINGH) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 21 ST NOVEMBER, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),, MUMBAI 4. COMMISSIONER OF INCOME TAX, , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH A MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI