BIRLA SUN LIFE AMC LTD, V. DCIT CEN CIR-1,

MA 86/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6204 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-12-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 09-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D SONGATE
• Assessee Lawyers: J D MISTRY
• Keywords: Question of law; Commercial expediency
• Section: 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER MA NO. 86/MUM/2010 (ARISING OUT OF ITA NO. 4490/MUM/2007) (ASSESSMENT YEAR: 2004-05) M/S. BIRLA SUNLIFE AMC LTD. DCIT, CENTRAL CIRCLE - I AHURA CETNRE, 2ND FLOOR MUMBAI TOWER-A, 96/A-D, MAHAKALI CAVES VS. ROAD, ANDHERI (E), MUMBAI 400093 PAN - AAACB 6134 D APPLICANT RESPONDENT APPLICANT BY: SHRI J.D. MISTRY RESPONDENT BY: SHRI D. SONGATE O R D E R PER B. RAMAKOTAIAH, A.M. ASSESSEE RAISED THE MISCELLANEOUS APPLICATION DATED 2 ND NOVEMBER 2010 FILED ON 10 TH NOVEMBER 2010 ARISING OUT OF ITA NO. 4990/MUM/2007 . 2. THE MA READS AS UNDER: - 1. THE ISSUE IN THE APPEAL BEFORE YOUR HONOUR WAS WHETHER THE APPLICANT IS ENTITLED TO CLAIM DEDUCTION FOR THE LO SS ON EMBEZZLEMENT OF RS.3,92,15,559 IN THE ASSESSMENT YE AR UNDER CONSIDERATION. 2. THE LOWER AUTHORITIES HAD DISALLOWED THE SAID DE DUCTION ON THE GROUND THAT THE LOSS WAS PREMATURE AND IT DID NOT A RISE IN THE ASSESSMENT YEAR UNDER CONSIDERATION. 3. AT THE HEARING OF THE AFORESAID APPEAL BEFORE YO UR HONOURS, A PAPER BOOK CONTAINING 113 PAGES WAS FILED. VARIOUS EVIDENCES CONTAINED THEREIN WERE POINTED OUT TO ESTABLISH THE FOLLOWING FACTS: A. M/S. TURQUOISE INVESTMENT AND FINANCE PVT. LTD. (HEREINAFTER REFERRED TO AS TIFPL) HAD INVESTED RS.7,50,00,000 /- FROM TIME TO TIME IN BIRLA MUTUAL FUND BIRLA INCOME PL US PLAN B: GROWTH SCHEME THROUGH THE APPLICANT. B. ON 28 TH MARCH 2003, TIFPL MADE A REQUEST TO THE APPLICANT FOR REDEMPTION OF ITS INVESTMENT OF RS.7,50,00,000. THE APPLICANT FORWARDED THE REDEMPTION REQUEST TO CITIB ANK N.A., WORLI, ITS REGISTRAR AND TRANSFER AGENT FOR PROCESS ING. MA NO. 86/MUM/2010 M/S. BIRLA SUNLIFE AMC LTD. 2 C. CITIBANK N.A., HOWEVER, PROCESSED THE REDEMPTION REQUEST FOR AN AMOUNT OF RS.4,85,00,000 ONLY, SINCE THE AVAILAB LE BALANCE IN TIFPLS ACCOUNT WAS ONLY RS.4,85,00,000 TO THE APPLICANT. THE APPLICANT IN TURN FORWARDED THE CHEQ UE TO TIFPL. D. TIFPL ON RECEIPT OF THE CHEQUE CONTACTED THE APP LICANT AND ENQUIRED ABOUT THE BALANCE AMOUNT. THE APPLICANT EX AMINED ITS ACCOUNTS AND EXPLAINED TO TIFPL THAT RS.3,65,00 ,000 HAD ALREADY BEEN REDEEMED ON 28 TH FEBRUARY 2003 AS PER TIFPLS REQUEST. E. TIFPL DENIED HAVING MADE REQUEST ON 28 TH FEBRUARY 2003 FOR REDEMPTION OF RS.3,65,00,000. F. ON INVESTIGATION, IT WAS FOUND THAT A FRAUDULENT REDEMPTION REQUEST WITH A FORGED SIGNATURE HAD BEEN SUBMITTED BY A THIRD PARTY AND THE SAME WAS ALSO PROCESSED FOR PAY MENT. CITI BANK DID NOT DETECT THE FORGED SIGNATURE. THE CHEQUE FOR RS.3,65,00,000 SENT BY CITI BANK TO THE APPLICANT W AS DELIVERED TO A PERSON WHO CAME TO COLLECT IT ON 3 RD MARCH 2003. THEREAFTER, A FRAUDULENT BANK ACCOUNT WAS OPE NED IN THE NAME OF TIFPL WITH IDBI BANK ON 7 TH MARCH 2003. THE REDEMPTION CHEQUE WAS DEPOSITED IN THE BANK AND THE MONEY WAS WITHDRAWN SUBSEQUENTLY. G. ON DETECTION OF THE FRAUD, THE APPLICANT LODGED AN FIR ON 7 TH APRIL 2003. THE DOCUMENTS WERE SENT FOR FORENSIC RE PORT TO VERIFY THE SIGNATURE AND IT WAS REVEALED THAT SIGNA TURE OF SHRI SUSHIL AGARWAL, THE MANAGING DIRECTOR OF TIFPL WAS FORGED. H. THE APPLICANT ALSO FILED A COMPLAINT DATED 29 TH SEPTEMBER 2003 WITH THE BANKING OMBUDSMAN AGAINST THE IDBI BA NK FOR RECOVERY OF THE LOSS DUE TO THE FRAUD. THE BANK ING OMBUDSMAN VIDE LETTER DATED 5 TH JANUARY 2007 INFORMED THE APPLICANT THAT THE COMPLAINT WAS CLOSED AND ADVISED THE APPLICANT TO PURSUE THE MATTER WITH THE APPROPRIATE FORUM. I. THE APPLICANT THEREAFTER ON 14 TH SEPTEMBER 2007 FILED A PETITION IN THIS HONBLE COURT AGAINST IDBI BANK FO R THE EMBEZZLED AMOUNT WITH INTEREST, WHICH IS STILL PEND ING. J. THE APPLICANT AND CITIBANK N.A. ENTERED INTO AN AGREEMENT DATED 21 ST AUGUST 2007 WHEREBY CITIBANK PAID RS.68,00,000 TO THE APPLICANT IN FULL AND FINAL SETTLEMENT OF TH E DISPUTE BETWEEN THE APPLICANT AND CITIBANK IN CONNECTION WI TH THE SAID EMBEZZLEMENT OF RS.3,65,00,000. THE SAID AMOUN T WAS OFFERED TO TAX IN THE ASSESSMENT YEAR 2008-09. K. THUS, THE APPLICANT WAS LIABLE TO PAY TO TIFPL T HE AMOUNT OF RS.3,65,00,000 ALONGWITH THE INTEREST THEREON, WHIC H AMOUNTED TO RS.3,92,15,559, FOR WHICH A PROVISION W AS MADE IN THE ACCOUNTS BY THE APPLICANT. THE APPLICAN T ASSURED TIFPL THAT AFTER COMPLETION OF INVESTIGATIO N THE MA NO. 86/MUM/2010 M/S. BIRLA SUNLIFE AMC LTD. 3 APPLICANT WILL PAY TIFPL. THE SAME FACT IS CLEARLY MENTIONED IN THE PAGE 3 OF STATEMENT OF FACTS. IF THE APPLI CANT HAD NOT PAID TIFPL, TIFPL WOULD HAVE LODGED A COMPLAINT WIT H SEBI AND ALSO GIVEN WIDE PUBLICITY TO THIS EVENT, WHICH COULD AFFECT APPLICANTS REPUTATION AND BUSINESS. THUS, APART FR OM BEING A BUSINESS LOSS, EVEN ON THE GROUND OF COMMERCIAL EXPEDIENCY AND PRUDENCE, THE SAID LOSS IS ALLOWABLE AS DEDUCTIBLE BUSINESS LOSS. 4. ON THE AFORESAID FACTS, THE ONLY ISSUE BEFORE TH E TRIBUNAL WS IN MERCANTILE SYSTEM OF ACCOUNTING FOLLOWED BY THE APP LICANT, WHETHER THE LIABILITY ACCRUED TO THE APPLICANT IN T HE ASSESSMENT YEAR UNDER CONSIDERATION, AS THAT WAS THE ONLY POIN T OF DISALLOWANCE IN THE CIT(A)S ORDER FROM WHICH THE A PPLICANT WAS IN APPEAL. 5. HOWEVER, AFTER RECORDING THE FACTS AND ARGUMENTS , THE IMPUGNED ORDER AT PARA 9 STATES THAT: A. THE LOSS IN QUESTION PERTAINS TO TIFPL AND NOT TO THE APPLICANT. THIS OBSERVATION OF THE TRIBUNAL IS FACT UALLY INCORRECT SINCE THE LOSS IN QUESTION PERTAINS TO TH E APPLICANT. B. THE APPLICANT WHO IS A PORTFOLIO MANAGER OF TIF PL IN RESPECT OF THE UNITS TOTALLING RS.7,50,00,000 HAS REDEEMED THE TOTAL AMOUNT IN THE ACCOUNT OF TIFPLL. NO FURTHER AMOUNT OTHER THAN RS.7,50,00,000 HAS BEEN PAID TO ANY PERSON WHATSOEV ER. THE APPLICANT HAD TO REDEEM UNITS WORTH RS.7,50,00,000 AND HAS PAID RS.7,50,00,000 ONLY. THEREFORE, THE APPLICANT HAS NOT INCURRED ANY LOSS. THE TRIBUNAL OVERLOOKED THAT THE PAYMENT OF THE SUM WAS NOT THE ISSUE BEFORE IT AT ALL. THE ISSUE BEFORE IT WAS ACCRUAL OR OTHERWISE OF THE LIABILITY IN THE CURRENT YEAR. IN ANY EVENT, PAYMENT WAS MADE TO TIFPL IN SUBSEQUE NT YEAR. C. NO LIABILITY ON ACCOUNT OF PAYMENT OF RS.3,92,1 5,559 HAS CRYSTALLISED AGAINST THE APPLICANT TILL DATE. THERE IS ABSOLUTELY NO REASONING IN THE TRIBUNALS ORDER FOR THIS CONCL USION, WHICH IS CONTRARY TO THE BOARDS CIRCULAR NO. 35-D (XLVII -20) [F. NO. 10/48/65-IT(A-I)] DATED 24 TH NOVEMBER 1965 AS WELL AS VARIOUS CASE LAWS CITED BEFORE IT, WHICH ARE NOT EV EN DISCUSSED OR DEALT WITH AT ALL. D. THERE IS NO MERIT IN THE APPLICANTS ARRANGEMEN T THAT THE AMOUNT IF ANY IS RECOVERED, IT WILL BE TO THE OFFER ED TO TAX IN THE YEAR OF RECEIPT AS THE AMOUNT RECOVERED WOULD L EGALLY BELONG TO TIFPL. THE TRIBUNAL OVERLOOKED THAT SINCE THE LIABILITY TO BEAR THE LOSS WAS ON THE APPLICANT, TH IS WAS ONLY CONSEQUENTIAL. E. UNLESS THE APPLICANT PAYS ANY PART OF THE LOSS TO TIFPL THE CLAIM FOR LOSS IS PREMATURE. THIS WAS NOT AN ISSUE BEFORE THE TRIBUNAL AT ALL THE ISSUE BEFORE THE TRIBUNAL WAS ACCRUAL OF THE LIABILITY AND NOT THE PAYMENT THEREOF. MA NO. 86/MUM/2010 M/S. BIRLA SUNLIFE AMC LTD. 4 6. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT THE TRIBUNAL HAS PROCEEDED ON AN INCORRECT FACTUAL BASIS IN THE IMPU GNED ORDER. THE APPLICANT HAVING INVESTED THE MONIES OF TIFPL I S LIABLE TO PAY BACK THE NOMINEES TO TIFPL IRRESPECTIVE OF HAVI NG PAID RS.3,56,00,000 TO A THIRD PARTY. MOREOVER, THE LOSS HAS BEEN INCURRED DURING THE YEAR SINCE THE LIABILITY TO MAK E GOOD THE AMOUNT OF ` 3,65,00,000 HAS ARISING DURING THE YEAR UNDER CONSIDERATION. THE ISSUE REALLY RAISED FOR CONSIDER ATION OF THE TRIBUNAL HAS NOT BEEN DECIDED AT ALL. RATHER, IT HA S DECIDED A NEW AND UNRELATED ISSUE ON THE INCORRECT FACTUAL BA SIS. 7. IT IS SUBMITTED THAT THE APPEAL WAS HEARD ON 14 TH MAY 2009 BUT THE ORDER WAS PASSED ONLY ON 11 TH AUGUST 2009, I.E., AFTER A DELAY OF APPROX. THREE MONTHS. THIS IS CONTRARY TO THE DIRECTIONS OF THE BOMBAY HIGH COURT AS WELL THE SUPREME COURT IN VARIOUS CASES, WHICH MANDATE THAT THE ORDER MUST BE PASSED WITHIN TWO MONTHS OF THE DATE ON WHICH ARGUMENTS ARE CONCLUDED . IT APPEARS THAT IN VIEW OF THIS LONG TIME LAG, THE ABO VE ERRORS HAVE CREPT INTO THE IMPUGNED ORDER. THESE ERRORS GO TO T HE ROOT OF THE ISSUE AND CAN BE CORRECTED ONLY BY RECALLING THE OR DER AND HEARING THE MATTER DE NOVO. 8. IN THE CIRCUMSTANCES, THE APPLICANT PRAYS THAT THE HON'BLE MEMBERS BE PLEASED TO: A. HOLD THAT THE LOSS ON EMBEZZLEMENT IS TO THE AP PLICANTS ACCOUNT; B. HOLD THAT THE LOSS AROSE DURING THE YEAR UNDER CONSIDERATION; C. ACCORDINGLY, ALLOW THE APPLICANTS APPEAL; OR D. ALTERNATIVELY, RECALL PARA 9 OF THE IMPUGNED OR DER AND POST THE APPEAL FOR HEARING DO NOVO. 3. THIS CASE WAS ORIGINALLY POSTED ON 07.05.2010 AND SUBSEQUENTLY ADJOURNED AND TAKEN UP FOR HEARING ON 25.02.201. AT THE OUTSET THE LEARNED COUNSEL STATED THAT HON'BLE BOMBAY HIGH COURT HAS A DMITTED THE SUBSTANTIAL QUESTION OF LAW AND PLACED THE ORDER OF THE HON'BLE HIGH COURT DATED 29.11.2010 ON RECORD. WHEN IT WAS POINTED THA T THE SAME QUESTION OF LAW WAS ADMITTED BY THE HON'BLE HIGH COURT AND MAT TER IS SUBJUDICE, THE LEARNED COUNSEL SUBMITTED THAT THE MA CAN BE CONSID ERED AND IF THE MA IS ALLOWED THE APPEAL WILL BE WITHDRAWN BEFORE THE HON 'BLE HIGH COURT. HE REITERATED THE SUBMISSION MADE IN THE MA APPLICATIO N AND HOW THE ITAT ERRED IN CONSIDERING THE ORDER ON WRONG FACTS. IT W AS HIS SUBMISSION THAT THE QUESTION OF LAW BEFORE THE ITAT WAS WHETHER THE LOS S CAN BE ALLOWED IN THE IMPUGNED ASSESSMENT YEAR OR NOT AND NOT WHETHER THE LOSS IS ALLOWABLE OR NOT AS DECIDED BY THE ITAT. HE VEHEMENTLY ARGUED TH AT THE ORDER OF THE MA NO. 86/MUM/2010 M/S. BIRLA SUNLIFE AMC LTD. 5 TRIBUNAL HAS CONSIDERED THE FACTS WRONGLY, MAY BE B ECAUSE THE ORDER WAS DELAYED AFTER HEARING AND THIS WAS CONTRARY TO THE DIRECTIONS OF THE HON'BLE BOMBAY HIGH COURT AND HON'BLE SUPREME COURT IN VARI OUS CASES AND PLACED ON RECORD THE DECISION OF THE HON'BLE BOMBAY HIGH C OURT IN THE CASE OF M/S. SHIVSAGAR VEG RESTAURANT VS. ACIT IN ITA NO. 144 OF 2006 DATED 14.11.2008 AND THE DECISION THE HON'BLE SUPREME COURT IN THE C ASE OF ANIL RAI VS. STATE OF BIHAR CONSIDERED BY THE HON'BLE HIGH COURT VIDE PARA 14 OF THE ABOVE ORDER. 4. THE LEARNED D.R. IN REPLY, HOWEVER, SUBMITTED THAT THE ITAT HAS CONSIDERED THE ISSUE BOTH ON FACTS AND LAW AS PER T HE GROUNDS RAISED AND THERE WAS NO DELAY IN PASSING THE ORDER AND THE HON 'BLE BOMBAY HIGH COURT HAS PERMITTED A PERIOD OF 3 MONTHS VIDE PARA 16 OF THE ORDER FROM THE DATE THE CASE IS CLOSED FOR JUDGEMENT IN THE CASE RELIE D UPON AND EVEN THE HON'BLE SUPREME COURT HAS MENTIONED 60 DAYS FOR REV IEW OF THE CASES WHEREAS IT HAS NEVER STATED THAT THE ORDER HAS TO B E PASSED WITHIN 60 DAYS. IT WAS POINTED OUT THAT VIDE PARA 10(III) OF THE JU DGEMENT OF THE ANIL RAI VS. STATE OF BIHAR (2001) 7 SUPREME COURT CASES 318) RE LIED UPON BY THE LEARNED COUNSEL, AFTER CONCLUSION OF THE ARGUMENTS THE JUDGEMENT IS NOT PRONOUNCED WITHIN A PERIOD OF TWO MONTHS, THE CHIEF JUSTICE CONCERNED SHALL DRAW THE ATTENTION OF THE BENCH CONCERNED TO THE PENDING MATTER WHEREAS VIDE CLAUSE IV) IT WAS STATED THAT WHERE A JUDGEMENT IS NOT PRONOUNCED WITHIN THREE MONTHS OF RESERVING IT, ANY OF THE PARTIES IN THE CASE IS PERMITTED TO FILE AN APPLICATION WITH A PRA YER FOR EARLY JUDGMENT. THE GUIDELINE IN THIS REGARD IS THAT THE ORDER HAS TO B E PRONOUNCED WITHIN 90 DAYS WHICH IS THE CASE HERE, AS THE HEARINGS WERE C ONCLUDED ON 19 TH MAY 2009 AND THE ORDER WAS PASSED ON 11 AUGUST 2009 WIT HIN THE TIME LIMIT. CONSEQUENTLY THERE IS NO DELAY ON THE PART OF THE T RIBUNAL ON PRONOUNCING THE ORDER. FURTHER IT WAS SUBMITTED THAT THE TRIBUN AL HAS GIVEN THE JUDGMENT ON ITS MERITS AND THE TRIBUNAL HAS NO POWE R TO REVIEW THE JUDGMENT IN THE GUISE OF MISCELLANEOUS APPLICATION. 5. WE HAVE CONSIDERED THE ARGUMENTS OF THE LEARNED COU NSEL AND THE LEARNED A.R. THE GROUNDS RAISED IN THE APPEAL AS ST ATED IN PARA 2 OF THE ORDER IS AS UNDER: - MA NO. 86/MUM/2010 M/S. BIRLA SUNLIFE AMC LTD. 6 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) CENTRAL-I ERRED IN UPHOLDING THE ACTION OF T HE ASSESSING OFFICER BY REJECTING THE APPELLANTS CLAIM OF BUSINESS LOSS ON ACCOUNT OF EMBEZZLEMENT AMOUNTING TO RS.3,92,15,559/-. THE ASS ESSING OFFICER MAY BE DIRECTED TO ALLOW THE SAID LOSS AMOUNTING TO RS.3,92,15,559/- IN THE YEAR UNDER APPEAL U/S. 28 OR 37 OF I.T. ACT, 1961. ON THIS GROUND, THE ENTIRE ISSUE WAS EXAMINED BY TH E ITAT AND AN ORDER WAS PASSED DISMISSING THE CLAIM OF LOSS ON ACCOUNT OF EMBEZZLEMENT AND THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS ACCORDIN GLY DISMISSED. THE ASSESSEE HAS FILED AN APPEAL BEFORE THE HON'BLE BOM BAY HIGH COURT AGAINST THE ORDER OF THE TRIBUNAL. THE HON'BLE BOMBAY HIGH COURT IN ITA NO. 4319 OF 2009 ORDER DATED 29.11.2010 ADMITTED THE APPEAL AND FRAMED THE FOLLOWING QUESTIONS OF LAW FOR CONSIDERATION: - I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LOSS OF RS.3,92,15,559/- WAS ALLOWABLE AS DEDUCTION TO THE APPELLANT FOR THE ASSESSMENT YEAR 2004-05. II) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, A LOSS ARISING ON ACCOUNT OF EMBEZZLEMENT OF MONIES OF A PERSON WHICH ARE IN CUSTODY OF ANOTHER IN THE COURSE OF TH E BUSINESS OF THE LATTER, WHICH THE LATTER MAKES GOOD TO THE FORM ER IS TO BE PROPERLY REGARDED AS THE LOSS OF THE LATTER IN THE YEAR IN WHICH THE LOSS IS DETECTED? IT CAN BE SEEN FROM THE ABOVE QUESTIONS OF LAW RAIS ED BY THE ASSESSEE BEFORE THE HON'BLE HIGH COURT AND THE GRIEVANCES PROJECTED IN THE MA ARE ONE AND THE SAME. SINCE THE MATTER IS SUBJUDICE BEFORE THE HON'BLE HIGH COURT ON THE SUBSTANTIAL QUESTION OF LAW AND THE VERY ISSUE RAISED IN THE MA HAS ALREADY BEEN ADMITTED BY THE HON'BLE HIGH COURT, WE DO NOT INTEND TO GO INTO THE MERITS OF THE MA AND THE ARGUMENTS ADVANCE D BY THE LEARNED COUNSEL FOR THE ASSESSEE AS THAT WOULD AMOUNT TO RE VIEW OF THE DECISION ALREADY MADE AND THIS FORUM HAS NO POWER TO REVIEW THE ORDER. THE SPECIAL BENCH OF THE ITAT IN THE CASE OF TATA COMMUNICATION S LTD. 121 ITD 384 (MUM)(SB) HAS CONSIDERED SIMILAR ISSUE AND HELD AS UNDER: - WHEN QUESTION WAS PENDING BEFORE THE HIGH COURT, I T WAS NOT RIGHT FOR THE ASSESSEE TO AGITATE SAME OR PART OF T HE QUESTION BEFORE THE TRIBUNAL. THE ASSESSEE HAD NOW TO SHOW THE HIGH COURT THAT THE CONDITIONS OF SECTION 80-IA WERE SATISFIED ON T HE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND THAT IT WAS ENTIT LED TO RELIEF UNDER THE ABOVE SECTION. AS FAR AS THE TRIBUNAL WAS CONCERNED, QUESTION HAD ALREADY BEEN DECIDED AND THE TRIBUNAL WAS NOW FUNCTUS OFFICIO, SO FAR AS APPLICABILITY OF SECTION 80-IA WAS MA NO. 86/MUM/2010 M/S. BIRLA SUNLIFE AMC LTD. 7 CONCERNED. IT WAS FOR THE HIGH COURT TO ADJUDICATE ON THE CORRECTNESS OR OTHERWISE OF THE DECISION OF THE TRI BUNAL. IN THE CIRCUMSTANCES, WE DISMISS THE M.A. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH MARCH 2011. SD/- SD/- (N.V. VASUDEVAN) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 16 TH MARCH 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CENTRAL I, MUMBAI 4. THE CIT CENTRAL I, MUMBAI CITY 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.