M/S. SET INDIA P. LTD, v. THE ACIT CIR 11(1),

CO 134/MUM/2005 | 2001-2002
Pronouncement Date: 12-02-2010 | Result: Dismissed

Appeal Details

RSA Number 13419923 RSA 2005
Assessee PAN AAATS2739Q
Bench Mumbai
Appeal Number CO 134/MUM/2005
Duration Of Justice 4 year(s) 10 month(s) 24 day(s)
Appellant M/S. SET INDIA P. LTD,
Respondent THE ACIT CIR 11(1),
Appeal Type Cross Objection
Pronouncement Date 12-02-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted L
Tribunal Order Date 12-02-2010
Date Of Final Hearing 30-09-2009
Next Hearing Date 30-09-2009
Assessment Year 2001-2002
Appeal Filed On 18-03-2005
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'L' BENCH MUMBAI BEFORE SHRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER ITA NO. 6775/MUM/2004 (ASSESSMENT YEAR: 2001-02) ACIT - 11(1) M/S. SET INDIA PVT. LTD. ROOM NO. 439 4TH FLOOR INTERFACE BUILDING NO. 1 4 TH FLOOR AAYAKAR BHAVAN M.K. ROAD VS. MALAD LINK ROAD MALAD (W) MUMBAI 400020 MUMBAI 400064 PAN - AAATS 2739 Q APPELLANT RESPONDENT ITA NO. 6602/MUM/2004 (ASSESSMENT YEAR: 2001-02) M/S. SET INDIA PVT. LTD. ACIT - 11(1) INTERFACE BUILDING NO. 1 4TH FLOOR ROOM NO. 439 4 TH FLOOR MALAD LINK ROAD MALAD (W) VS. AAYAKAR BHAVAN M.K. ROAD MUMBAI 400064 MUMBAI 400020 PAN - AAATS 2739 Q APPELLANT RESPONDENT CO NO. 134/MUM/2005 (ASSESSMENT YEAR: 2001-02) M/S. SET INDIA PVT. LTD. ACIT - 11(1) INTERFACE BUILDING NO. 1 4TH FLOOR ROOM NO. 439 4 TH FLOOR MALAD LINK ROAD MALAD (W) VS. AAYAKAR BHAVAN M.K. ROAD MUMBAI 400064 MUMBAI 400020 PAN - AAATS 2739 Q CROSS OBJECTOR APPELLANT IN APPEAL REVENUE BY: SHR S.S. RANA ASSESSEE BY: SHRI DINESH VYAS O R D E R PER J. SUDHAKAR REDDY A.M. THESE ARE CROSS APPEALS AS WELL AS CROSS OBJECTION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) XI MUMBAI DATED 14.07.2004 FOR THE A.Y. 2001-02. ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 2 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN INDI AN COMPANY AND IS ENGAGED IN THE BUSINESS OF PRODUCTION/ACQUISITION A ND SALE OF TELEVISION PROGRAMMES ETC. MARKETING OF AIR TIME SLOTS OF FOR EIGN TELEVISION CHANNELS TO INDIAN ADVERTISERS AND DISTRIBUTION OF TELEVISION C HANNELS. THE ASSESSEE FILED A RETURN OF INCOME ON 31 ST OCTOBER 2001 DECLARING INCOME OF RS.16 42 33 430/-. THE A.O. ORIGINALLY PROCESSED TH E RETURN OF INCOME UNDER SECTION 143(1) ON 11.03.2002 AND THEREAFTER CONVERT ED THE ASSESSMENT INTO SCRUTINY ASSESSMENT AND PASSED AN ORDER UNDER SECTI ON 143(3) ON 18 TH MARCH 2004 ASSESSING AN INCOME OF RS.51 40 07 364/- . WHILE DOING SO THE A.O. INTER ALIA MADE THE FOLLOWING DISALLOWANCES/A DDITIONS IN RESPECT OF THE FOLLOWING: - I) DEPRECIATION ON INTEGRATED RECEIVERS AND DECODERS ( IRDS) ALLOWED @ 25% AS PLANT AND MACHINERY INSTEAD OF @ 60% AS CO MPUTERS. II) EXPENDITURE ON LEASE HOLD PREMISES WHICH WAS CLAIME D AS REVENUE EXPENSES WAS DISALLOWED AND TREATED AS CAPITAL EXPE NDITURE. III) CLAIM FOR DEDUCTION UNDER SECTION 80HHF WAS REJECTE D IV) ENHANCEMENT OF SERVICE FEES RECEIVED BY THE ASSESSE E UNDER AN ARRANGEMENT WITH SET SATELLITE (SINGAPORE) PTE LTD. BY INVOKING PROVISIONS OF SECTION 92 OF THE ACT. V) ADDED AN AMOUNT RECEIVED AS GIFT FROM SPE MAURITIUS HOLDING LTD. UNDER SECTION 68 OF THE ACT. VI) DISALLOWED THE CLAIM OF BAD DEBTS AND ADVANCES WRIT TEN OFF. VII) ADDED THE AMOUNT OF ACCUMULATED BALANCE IN PROVISIO NS FOR GRATUITY AND LEAVE ENCASHMENT ACCOUNT AND ALSO DISALLOWING T HE CLAIM OF INCREMENTAL LIABILITY FOR LEAVE SALARY WHICH WAS C OMPUTED ON THE BASIS OF ACTUARIAL VALUATION BY THE ASSESSEE. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL . 3. THE FIRST APPELLATE AUTHORITY GRANTED PART RELIEF. ON THE ISSUES WHERE THE FIRST APPELLATE AUTHORITY HAS NOT GRANTED RELIE F THE ASSESSEE FILED APPEAL IN ITA NO. 6602/MUM/2004 FOR A.Y. 2001-02 AND ON IS SUES WHERE THE FIRST APPELLATE AUTHORITY HAS GRANTED RELIEF THE REVENUE HA FILED APPEAL IN ITA NO. 6775/MUM/2004. THE ASSESSEE ALSO FILED CROSS OBJECT ION IN CO NO. 134/MUM/2004. 4. MR. DINESH VYAS THE LEARNED SENIOR ADVOCATE FILED SEPARATE PAPER BOOKS IN THE ASSESSEES APPEAL AS WELL AS IN THE RE VENUES APPEAL. THE PAPER ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 3 BOOK IN REVENUES APPEAL IS OF 125 PAGES AND THE PA PER BOOK IN ASSESSEES APPEAL IS OF 54 PAGES. DETAILED CHARTS WERE ALSO FI LED. 5. WE HAVE HEARD SHRI S.S. RANA THE LEARNED D.R. ON B EHALF OF THE REVENUE AND SHRI DINESH VYAS THE SENIOR ADVOCATE O N BEHALF OF THE ASSESSEE. ON A CAREFUL CONSIDERATION OF RIVAL CONTE NTIONS AND ON A PERUSAL OF THE PAPERS ON RECORD WE HOLD AS FOLLOWS: - 6. WE FIRST TAKE UP THE DEPARTMENT APPEAL IN ITA NO. 6 775/MUM/2004. GROUND NO. 1 IS ON THE ISSUE OF ALLOWABILITY OF EXP ENDITURE INCURRED BY THE ASSESSEE ON LEASE HOLD PREMISES. THE ASSESSEE HAD I NCURRED EXPENDITURE ON LEASE HOLD PREMISES AT BOMBAY OFFICE CHENNAI OFFIC E DELHI OFFICE AS WELL AS BANGALORE OFFICE. THE DETAILS OF THE EXPENDITURE AR E GIVEN AT PAGE 4 OF THE CIT(A)S ORDER. THE CIT(A) AFTER CONSIDERING THE A RGUMENTS OF THE ASSESSEE AND THE FINDINGS OF THE A.O. ANALYSED THE NATURE O F EXPENDITURE AND HAS COME THE CONCLUSION THAT CERTAIN EXPENSES INCURRED BY THE BOMBAY OFFICE AND DELHI OFFICE WERE IN THE NATURE OF CAPITAL EXPE NDITURE. HE FURTHER HELD THAT CERTAIN OTHER EXPENSES WERE PARTLY CAPITAL IN NATURE. THUS 50% OF SUCH OTHER EXPENSES WERE TREATED AS CAPITAL AND THE A.O. WAS DIRECTED TO ALLOW DEPRECIATION ON THE SAME. AGGRIEVED ON THIS FINDING BOTH THE ASSESSEE AND THE REVENUE HAVE RAISED GROUNDS OF APPEAL. 7. WE FIND THAT SIMILAR ISSUE HAS COME UP BEFORE THE A BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 1996-9 7 AND THE TRIBUNAL IN PARA 8 OF ITS ORDER HELD AS FOLLOWS: - 18. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE ORDERS OF THE REVENUE AUTHORITIES AND OTHER MATERIAL ON RE CORD INCLUDING THE CASE LAW RELIED UPON BY THE PARTIES. WE FIND MERIT IN THE CONTENTION OF THE ASSESSEE THAT IT IS ONLY IN THE CASE OF AN EXPENDIT URE BEING CLASSIFIED AS OF CAPITAL NATURE THAT PROVISIONS OF EXPLANATION 1 TO S. 32(1)(III) BECOMES APPLICABLE. WHETHER AN EXPENDITURE IS OF CA PITAL OR REVENUE NATURE HAS TO BE DETERMINED FIRST IN THE LIGHT OF THE RATIO OF THE DECISIONS OF APEX COURT AND OTHER COURTS. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE IS ONLY A LESSEE OF THE PREMISES ON WHICH THE EXPENDITURE IN QUESTION HAS BEEN INCURRED. CONSEQUENTLY THE EXPEN DITURE HAS RESULTED IN THIRD PARTY ASSETS & MORE SO SINCE THE LEASE AG REEMENT ENTERED INTO BY THE ASSESSEE STIPULATED THAT THE ASSESSEE WAS NO T ENTITLED TO REMOVE ANY OF THE ADDITIONS AND ALTERATIONS OF PERMANENT N ATURE MADE TO THE PROPERTY LEASED. IN THE CIRCUMSTANCES CONSIDERING PLETHORA OF DECISION OF THE APEX COURT JURISDICTIONAL HIGH COURT AND OTHER COURTS RELIED UPON BY ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 4 THE LEARNED COUNSEL FOR THE ASSESSEE NOTED ABOVE WE HAVE TO HOLD THAT THE EXPENDITURE IN QUESTION IS ONLY REVENUE NATURE AND IS LIABLE TO BE ALLOWED AS DEDUCTION ON THE COMPUTATION OF INCOME. WE ACCORDINGLY ACCEPT THE GROUNDS OF THE ASSESSEE ON THIS ISSUE AN D DIRECT THE ASSESSING OFFICER ACCORDINGLY. 8. SIMILAR VIEW WAS TAKEN BY THE TRIBUNAL IN ASSESSEE S OWN CASE FOR THE A.Y. 1998-99 AS WELL AS FOR A.Y. 2000-01. WHEN THE REVENUE CARRIED THE MATTER IN APPEAL THE HON'BLE APEX COURT HAD VIDE I TS ORDER DATED 27.02.2009 IN CC NO. 1012/09 DISMISSED THE APPEAL O F THE REVENUE. IN VIEW OF THE ABOVE RESPECTFULLY FOLLOWING THE PROPOSITIO N OF LAW AS LAID DOWN BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE EARLIER ASS ESSMENT YEARS WE HOLD THAT THE THAT THE EXPENDITURE INCURRED BY THE ASSES SEE ON LEASED PREMISES CANNOT BE TREATED AS CAPITAL EXPENDITURE AND HAS TO BE ALLOWED AS REVENUE EXPENDITURE. THUS THIS ISSUE IS DECIDED IN FAVOUR O F THE ASSESSEE AND GROUND NO. 1 OF THE REVENUE APPEAL IS DISMISSED. 9. GROUND NO. 2 IS AGAINST DELETION OF RS.10 01 80 302 /- ADDED BY THE A.O. ON THE GROUND THAT THERE IS VARIATION IN THE P ERCENTAGE OF SERVICE FEES UNDER SECTION 92 OF THE I.T. ACT. 10. THE ASSESSEE IN THIS CASE HAS EARNED SERVICE FEES @ 12.5% OF NET ADVERTISEMENT REVENUE RECEIPT INSTEAD OF 15% OF GRO SS ADVERTISEMENT REVENUE. IT IS SUBMITTED THAT THIS REDUCTION IN THE RATE OF COMMISSION IS IN ANTICIPATION OF RISE IN THE SUBSCRIPTION REVENUE AN D SERVICE FEES. THE A.O. HELD THAT THE CLAIM OF THE ASSESSEE CANNOT BE ACCEP TED. THE RELEVANT EXTRACT IS AS FOLLOWS: - 4.1. BEFORE THE A.O. IT WAS CONTENTED THAT: - THE APPELLANT AGREED FOR REDUCED RTE OF COMMISSION @ 12.5% OF NET AD-REVENUE INSTEAD OF 15% OF GROSS AD-REVENUE I N ANTICIPATION OF RISE IN SUBSCRIPTION REVENUES AND S ERVICE FEES. THE PROFIT BEFORE TAX OF APPELLANT INCREASED SUBSTA NTIALLY IN COMPARISON TO EARLIER YEARS. THE A.O. DID NOT ACCEPT THE CLAIM OF THE APPELLANT IN VIEW OF PROVISIONS OF SEC. 92 OF THE I.T. ACT ON THE FOLLOW ING GROUNDS: - THE RATE OF COMMISSION IS LESS THAN WHAT OTHER CHAN NELS HAD BEEN RECEIVING. THE TERM ORDINARY PROFIT REFERRED TO SEC. 92 MEAN T THE PROFIT AN ENTERPRISE SHOULD GET IF IT WAS AN INDEPENDENT E NTITY AND ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 5 DEALT WITH OTHER ENTITLED INDEPENDENTLY. THE CONCEP T IS SEEN AS ARMS LENGTH PRICE WHICH HAS BEEN ELABORATED BY FINA NCE ACT 2001 WHILE INTRODUCING THE TRANSFER PRICING REGULAT IONS IN I.T. ACT EFFECTIVE FROM 1-4-2002. IN THE ORIGINAL AGREEMENT DATED 1-10-1995 AND LETTE R DATED 5- 1-1996 THE RATE OF ADVERTISEMENT COMMISSION WAS AGR EED UPON @15% OF GROSS ADVERTISING REVENUES IN INDIA. SET S INGAPORE WERE TO REIMBURSE MAJOR MARKETING COSTS TO APPELLAN T. IT IS ONLY VIDE LETTER DATED 16.10.1998 THAT THE ADVERTISING SALES AGENCY COMMISSION HAS BEEN REDUCED FROM 15% OF GROSS AD-RE VENUES TO 12.5% NET AD-REVENUES IN INDIA. THE SUBSCRIPTION REVENUE AND SERVICE FEE AND INDEPE NDENT CHANNELS OF REVENUE AND IF BOTH CHANNELS DO WELL T HE PROFITS OF APPELLANT WOULD GO UP. OTHER COMPANIES LIKE ZEE TV AND STAR INDIA LTD. HA VE REFLECTED ADVERTISEMENT REVENUES @ 15% OF GROSS REC EIPTS THOUGH THEY ARE ALSO ON THE SAME LINE. IN VIEW OF THE ABOVE THE A.O. WORKED OUT THE INCOM E ACCRUED TO THE APPELLANT FROM THE SERVICE FEE @15% OF THE GROSS RE VENUE RECEIPTS AS UNDER: - 15% OF GROSS REVENUE RECEIPTS OF RS.4 00 72 12 000/- RS.60 10 81 812/- SHOWN BY THE ASSESSEE IN THE INCOME RS.50 09 01 50 1/- THE DIFFERENCE RS.10 01 08 302/- 11. AFTER CONSIDERING THE CONTENTIONS OF THE ASSESSEE THE CIT(A) DELETED THE ADDITION BY FOLLOWING HIS ORDER FOR THE A.Y. 20 00-01 WHICH IS DATED 14.08.2003. 12. AFTER HEARING THE CONTENTIONS OF THE REVENUE WE FIN D THAT THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SET SATELLITE (SIN GAPORE) PTE LTD. VS. DCIT (INTERNATIONAL TAXATION) REPORTED IN 307 ITR 205 N OTED AT PAGE 216AS FOLLOWS: - FROM THE ORDER OF THE COMMISSIONER OF INCOME-TAX WHICH HAS BEEN ACCEPTED IT IS CLEAR THAT THE APPELLANT HEREIN HAS PAID TO ITS PERMANENT ESTABLISHMENT ON THE ARMS LENGTH PRINCIPLE. IT REC ORDED A FINDING OF FACT THAT THE APPELLANT HAS PAID SERVICE FEES AT THE RAT E OF 15 PER CENT OF GROSS AD REVENUE TO ITS AGENT ET INDIA FOR PROCUR ING ADVERTISEMENTS DURING THE PERIOD APRIL 1998 TO OCTOBER 1998. THE FACT THAT 15 PER CENT SERVICE FEE IS AN ARMS LENGTH REMUNERATION IS SUPP ORTED BY CIRCULAR NO. 742 WHICH RECOGNIZES THAT THE INDIAN AGENTS OF FORE IGN TELECASTING COMPANIES GENERALLY RETAIN 15 PER CENT OF THE AD RE VENUES AS SERVICE CHARGES. EFFECTIVE NOVEMBER 1998 A REVISED ARRANGE MENT WAS ENTERED ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 6 INTO BETWEEN THE PARTIES WHEREBY THE AFORESAID AMOU NT WAS REDUCED TO 12.5 PER CENT OF NET AD REVENUE (I.E. GROSS AD REV ENUE LESS AGENCY COMMISSION). SIMULTANEOUSLY THE APPELLANT ALSO ENT ERED INTO AN AGREEMENT ENTITLING SET INDIA TO ENTER INTO AGREEME NTS COLLECT AND RETAIN ALL SUBSCRIPTION REVENUE. CONSIDERING ALL THESE ASP ECTS AND THE FACT THAT THE AGENT HAS A GOOD PROFITABILITY RECORD IT HELD THAT THE APPELLANT HAS REMUNERATED THE AGENT ON THE ARMS LENGTH BASIS. THIS FINDING OF THE TRIBUNAL HAS NOT BEEN DISPUTED BY THE REVENUE. THE ENTIRE CONTENTION OF THE REVENUE IS THAT THE AD VERTISEMENT REVENUE PERTAINING TO ITS OWN CHANNEL AND AXN CHANNEL ARE A LSO TAXABLE IN INDIA. 13. IN VIEW OF THE ABOVE OBSERVATION THAT THE FINDING O F THE TRIBUNAL THAT 12.5% OF NET AD REVENUES IS ARMS LENGTH PRICE WAS NOT CHALLENGED BY THE REVENUE WE UPHOLD THE FINDINGS OF THE FIRST APPELL ATE AUTHORITY AND DISMISS THIS GROUND OF THE REVENUE. 14. NEXT GROUND OF THE REVENUE IS AGAINST THE DELETION OF THE ADDITION MADE BY THE A.O. ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE FROM SPE MAURITIUS. THE A.O. DEALT WITH THE ISSUE AT PAGE NO . 6 OF THE ORDER. THE CIT(A) AT PAGE NO. 10 ONWARDS CONSIDERED THE ISSUE AND AT PAGE 14 IN PARA 5.4 HELD AS UNDER: - 5.4 I HAVE CONSIDERED THE ARGUMENTS OF THE APPELLA NT AND CONTENTIONS OF THE ASSESSING OFFICER. THE AMOUNT IN QUESTION HAS BEEN RECEIVED BY THE APPELLANT FROM ONE OF THE PRINCIPAL SHARE HOLDER. THE A.O. HAS NOT PROVED THAT THE PAYMENT OF US $ 5 64 909 WA S IN LIEU OF CERTAIN BUSINESS CONSIDERATION FROM THE PAYER TO THE APPELL ANT. THE FACT THAT APPELLANT AND SPEM ARE ENGAGED IN DIFFERENT BUSINES S ACTIVITIES HAS ALSO NOT BEEN CONTROVERTED. THE A.O. HAS COMPARED THE RE LATIONSHIP BETWEEN SPEM AND THE APPELLANT TO THAT BETWEEN THE PARENT A ND CHILD. THE FACTUM OF GIFT HAS NOT BEEN DISPUTED NOR CONTROVERT ED WITH THE HELP OF EVIDENCE. THE RECEIPT HAS NOT BEEN ESTABLISHED TO B E IN THE NATURE OF INCOME AND CANNOT BE CONSIDERED AS CASUAL AND NON-R ECURRING RECEIPT TAXABLE U/S. 10(3) OF I.T. ACT. THEREFORE THE ACTI ON OF A.O. TREATING THE GIFT AS BUSINESS RECEIPT CANNOT BE SUSTAINED. THE RECEIP T SHALL NOT QUALIFY FOR INCLUSION IN THE BUSINESS PROFITS NOR IN THE TURNOV ER AND ACCORDINGLY SHALL NOT BE CONSIDERED FOR COMPUTATION OF DEDUCTION U/S. 80HHF OF I.T. ACT. THE APPELLANT GETS RELIEF OF RS.2 62 79 566/- 15. THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS RE CEIVED A GIFT OF RS.2 62 79 566/- FROM M/S. SPE MAURITIUS HOLDING L TD. (HEREINAFTER CALLED SPEM) WHICH IS A MAJORITY SHAREHOLDER OF THE ASSES SEE. THE ASSESSEES CASE IS THAT IT HAD NO BUSINESS TRANSACTION WHATSOEVER W ITH SPEM AND THE RECEIPT ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 7 WAS NOT A RECURRING ONE. IT WAS FURTHER SUBMITTED T HAT THE GIFT WAS NOT ATTRIBUTABLE TO ANY CUSTOM OR PAST PRACTICE AND THE SPEM HAD NO CONTRACTUAL OR STATUTORY OBLIGATION TO MAKE ANY PAY MENT TO THE ASSESSEE. THERE IS NO CONSIDERATION THAT HAS PASSED FROM THE ASSESSEE TO SPEM AND NO QUID-PRO-QUO WAS INVOLVED. THE ASSESSEE CLAIMED THAT THE GIFT WAS A CAPITAL RECEIPT AND THAT THE PAYMENT WAS BENEVOLENT IS A GESTURE OF GOODWILL ON THE PART OF THE DONOR. THE A.O. DID NOT ACCEPT T HE CONTENTION OF THE ASSESSEE ON THE GROUND THAT THE REASONS FOR REMITTA NCE WAS NOT KNOWN AND THAT THE ASSESSEE HAD TREATED THE AMOUNT IN QUESTIO N AS REVENUE RECEIPT AND CREDITED THE SAME TO THE P & L ACCOUNT. THE A.O. HE LD THAT SPEM BEING THE MAJORITY SHAREHOLDER OF THE ASSESSEE COMPANY THE R ELATIONSHIP IS AKIN TO THAT OF A PARENT AND CHILD BUT AT THE SAME TIME AS BOTH OF THEM ARE IN THE BUSINESS OF TV MARKETING THE GIFT WAS GIVEN FOR PR OMOTING THE BUSINESS OF THE ASSESSEE. HE HELD THAT THE GIFT IS A REVENUE RE CEIPT. THE CONTENTIONS OF THE ASSESSEE BEFORE THE CIT(A) BROUGHT OUT IN PARA 5.3 AT PAGE 13 OF THE CIT(A)S ORDER WHICH ARE EXTRACTED FOR READY REFER ENCE: - 5.3 BEFORE ME IT IS CONTENDED THAT: - THE GIFT HAS BEEN RECEIVED BY THE APPELLANT FROM ON E OF THE PRINCIPAL SHARE HOLDERS M/S. SPEM AND NOT FROM ANY STRANGER. THE IDENTITY OF THE DONOR IS ESTABLISHED BEYOND DOU BT. THE GIFT REPRESENTING A VOLUNTARY AND BENEVOLENT P AYMENT CONSTITUTED A GESTURE OF GOOD WILL ON THE PART OF D ONOR. M/S. SPEM DID NOT PURSUE TELEVISION MARKETING BUSIN ESS AS SUGGESTED BY THE ASSESSING OFFICER. THE APPELLANT IS IN THE BUSINESS OF EXPORT OF TV PR OGRAMMES MARKETING OF AIR TIME SLOTS AND DISTRIBUTION OF TV CHANNELS AND DOES NOT HAVE ANY BUSINESS ARRANGEMENTS/TRANSAC TION WITH SPEM. THE GIFT WAS VOLUNTARY AND AT THE DISCRETION OF SPE M. THERE WAS NO OBLIGATION ON THE APPELLANT TO UTILISE THE GIFT FOR ANY SPECIFIC PURPOSE. THE STAMP DUTY PAID ON THE GIFT DEED HAS NOT BEEN C LAIMED BY THE APPELLANT AS DEDUCTION. RECOGNISING THAT SUCH G IFT CONSTITUTED A CAPITAL RECEIPT THE STAMP DUTY PAID O N THE GIFT DEED WAS SPECIFICALLY OFFERED FOR DISALLOWANCE IN A .Y. 2002-03. ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 8 EVEN IF THE APPELLANT HAS REFLECTED THE SAID GIFT A REVENUE RECEIPT AND THE CREDITED THE SAME TO P & L ACCOUNT THE TREATMENT ADOPTED BY THE APPELLANT IN THE BOOKS OF ACCOUNTS WOULD NOT CHANGE THE CHARACTER OF THE GIFT INTO A R EVENUE RECEIPT AND SHALL NOT GOVERN THE TAXABILITY OF THE RECEIPT. THE APPELLANT RELIED ON FOLLOWING DECISIONS: - KEDARNATH JUTE MFG. CO. LTD. 82 ITR 363 (SC) TUTICORIN ALKALI CHEMICALS & FERTILISERS 227 ITR 1 72 (SC) STEWARTS & LLOYDS OF INDIA LTD. 165 ITR 416 (CAL) WITHOUT PREJUDICE IF THE GIFT WAS HELD TO BE THE RE VENUE RECEIPT THE SAME MAY BE INCLUDED IN THE COMPUTATIO N OF PROFITS OF BUSINESS AND DEDUCTION U/S. 80HHF MUST B E ALLOWED. 16. ACCEPTING THESE CONTENTIONS THE CIT(A) GRANTED RELI EF. AGGRIEVED THE REVENUE IS IN APPEAL. 17. THE LEARNED SENIOR D.R. MR. RANA SUBMITTED THAT TH E CONTENTION OF THE ASSESSEE THAT THIS RECEIPT OF MONEY FROM ITS MA JORITY SHAREHOLDER SPEM WAS NOT A REVENUE RECEIPT BUT ONLY A CAPITAL RECEIP T IS CONTRADICTED BY THE ENTRIES PASSED BY THE ASSESSEE IN ITS BOOKS OF ACCO UNT. HE RELIED ON THE ORDER OF THE A.O. AND SUBMITTED THAT SPEM HOLDS 49. 5% OF THE SHARES OF THE ASSESSEE COMPANY AND TO ARGUE THAT REMITTANCE HAS B EEN MADE FROM THE PARENT COMPANY TO THE SUBSIDIARY COMPANY WITHOUT AN Y REASON IS UNBELIEVABLE. HE RELIED ON THE DEFINITION OF THE TE RM GIFT AS GIVEN IN THE LAW LEXICON AS WELL AS THE DECISION OF THE HON'BLE SUPR EME COURT IN THE CASE OF KM. SONIA BHATIA VS. STATE OF U.P. (SC) (1981) AIR PAGE 1274 AT PARA 20. HE CONTENDED THAT THE BURDEN OF PROOF IS ON THE ASSESS EE TO DEMONSTRATE AS TO WHY HE HAS RECEIVED MONEY FROM THE PARENT COMPANY. HE ALSO POINTED OUT THAT THE PARENT COMPANY HAS NOT GIFTED A SIMILAR AM OUNT TO ANY OTHER PERSON. HE SUBMITS THAT IT IS POSSIBLE THAT THE GIF T HAS BEEN GIVEN BY THE PARENT COMPANY TO THE ASSESSEE TO COMPLETE SOME S TATUTORY/ADMINISTRATIVE REQUIREMENTS IN INDIA. 18. MR. DINESH VYAS SENIOR ADVOCATE STRONGLY CONTROVER TED THE ARGUMENTS OF THE SENIOR D.R. HE DREW ATTENTION OF T HE BENCH TO THE GIFT DEED ON PAGE 38 OF THE PAPER BOOK AND CERTIFICATE OF FOR EIGN INWARD REMITTANCE TO PROVE HIS POINT THAT THE DOCUMENTATION IN THIS CASE DEMONSTRATES THAT THE ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 9 AMOUNT IN QUESTION IS ONLY A GIFT. HE VEHEMENTLY CO NTENDED THAT THE AMOUNT WAS RECEIVED WITHOUT ANY CONSIDERATION AND IN SUCH AN EVENT IT IS CONSIDERED AS A GIFT. HE RELIED ON THE FOLLOWING CA SE LAW: - I. INCOME TAX OFFICER VS. ESSAR TELEHOLDINGS (2009) 30 DTR TRIBUNAL ORDERS II. CIT VS. GROZ-BECKERT SABOO LTD. 116 ITR 125 (SC) III. CIT VS. STEWARTS & LLOYDS OF INDIA LTD. 165 ITR 41 6 (CAL) IV. MEHBOOB PRODUCTIONS P. LTD. VS. CIT 106 ITR 758 (BO M) 19. HE FURTHER SUBMITTED THAT IT IS WELL SETTLED THAT TREATMENT IN THE BOOKS OF ACCOUNT DOES NOT GOVERN TAXABILITY OF OTHE RWISE OF ANY RECEIPT. FOR THIS PROPOSITION HE RELIED UPON THE JUDGEMENT OF TH E HON'BLE SUPREME COURT IN THE CASE OF KEDARNATH JUTE MFG. CO. LTD. 82 ITR 363 (SC) AND TUTICORIN ALKALI CHEMICALS & FERTILISERS 227 ITR 172 (SC). ON THE DEFINITION IN THE LAW LEXICON AND THE JUDGEMENT OF THE HON'BLE SUPREM E COURT RELIED UPON BY THE LEARNED D.R. MR. DINESH VYAS SUBMITTED THAT THE DECISION WAS IN FAVOUR OF THE ASSESSEE. HE PRAYED FOR RELIEF. 20. AFTER HEARING THE REVENUES CONTENTION AND CONSIDER ING THE PAPERS ON RECORD AS WELL AS THE CASE LAW CITED ABOVE WE HOLD THAT THE UNDISPUTED FACT IS THAT THERE IS NO CONSIDERATION PAID BY THE ASSESSEE TO SEPL. THERE ARE NO BUSINESS TRANSACTIONS WHATSOEVER BETWEEN THESE TWO ENTITIES. THE DECLARATION OF GIFT WHICH IS REGISTERED STATES THAT THE SAME I S GIVEN VOLUNTARILY AND WITHOUT CONSIDERATION TO SET INDIA LTD. AND SPE MAURITIUS HOLDING LTD. THE CERTIFICATE OF FOREIGN INWARD REMITTANCE STATES THAT THE PURPOS E OF REMITTANCE IS GIFT TO SET INDIA FROM SPE MAURITIUS HOLDING LTD. THERE IS NO M ATERIAL WHATSOEVER THAT THE REVENUE TO COME TO A CONCLUSION THAT THERE MIGH T BE POSSIBLY SOME CONSIDERATION OR QUID-PRO-QUO ARRANGEMENT FOR THIS REMITTANCE OF FUND. THE VIEW OF THE A.O. THAT THE AMOUNT MAY HAVE RECEIVED TO COMPLETE SOME STATUTORY/ADMINISTRATIVE REQUIREMENTS IN INDIA IS N OTHING BUT A PURE SURMISE AND CONJECTURES. ON THESE FACTS WE NOW SEE THE LEGA L PROPOSITION. THE HON'BLE SUPREME COURT IN THE CASE OF GROZ-BECKERT SABOO LTD . (SUPRA) WAS CONSIDERING A CASE WHERE THE ASSESSEE RECEIVED FREE OF COST CER TAIN RAW MATERIAL AND SEMI FINISHED NEEDLES FROM ITS COLLABORATOR WHICH HAD SE NT SOME MACHINERY TO THE ASSESSEE. THE QUESTION WAS WHETHER THE SUM REPRESEN TING RAW MATERIAL AND ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 10 SEMI FINISHED NEEDLES RECEIVED BY THE ASSESSEE FREE OF COST ALONGWITH THE MACHINERY CAN BE DEDUCTED IN COMPUTING THE PROFITS FROM THE SALE OF THE FINISHED PRODUCT. ON PAGE 129 THE HON'BLE COURT HEL D AS FOLLOWS: THE POSITION WAS NO DIFFERENT THAN WHAT IT WOULD HAVE BEEN IF I NSTEAD OF GIVING THESE RAW MATERIALS AND SEMI-FINISHED NEEDLES TO THE ASSESSEE FREE OF COST THE WEST GERMAN COLLABORATORS HAD GIFTED THE SUMS OF RS.44 4 48.20 AND RS.30 000 TO THE ASSESSEE AND THE ASSESSEE HAD INTRODUCED THESE AMOU NTS IN THE BUSINESS AND IDENTICAL QUANTITY OF RAW MATERIAL AND SEMI-FINISHE D NEEDLES HAD BEEN PURCHASED AND SEMI-FINISHED NEEDLES HAD BEEN PURCHA SED FOR THE BUSINESS WITH THESE AMOUNTS. THE UNDISPUTED FACT IN THIS CASE WAS THAT THE RAW -MATERIAL AND SEMI-FINISHED NEEDLES RECEIVED FREE OF COST WER E CAPITAL RECEIPTS. 21. IN THE CASE OF STEWARTS & LLOYDS OF INDIA LTD. THE HON'BLE CALCUTTA HIGH COURT HELD AS FOLLOWS: - HELD THAT THE MATERIAL ON RECORD SHOWED THAT THER E HAD BEEN NO BUSINESS TRANSACTION BETWEEN THE ASSESSEE AND THE U .K. COMPANY AFTER THE ASSESSEE WAS CONVERTED INTO A PUBLIC LIMITED CO MPANY ON JUNE 8 1965. IN THE INCOME-TAX RETURN FILED BY THE U.K. CO MPANY IN THE U.K. THE PAYMENTS MADE TO THE ASSESSEE WERE NOT CLAIMED TO B E THE BUSINESS EXPENSES OF THE U.K. COMPANY. THE SAID AMOUNT OF RS .22.5 LAKHS WAS PAID WITHOUT ANY CLAIM FROM THE ASSESSEE. THERE WAS NO EVIDENCE THAT THE SAID PAYMENT BY THE U.K. COMPANY TO THE ASSESSE E WAS ATTRIBUTABLE TO ANY LEGAL OBLIGATION OR CUSTOM OR PAST PRACTICE. IT WAS THEREFORE CLEAR THAT THERE WAS NO OBLIGATION CONTRACTUAL OR STATUT ORY TO MAKE THE SAID PAYMENT TO THE ASSESSEE. IT WAS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE WAS INDUCED TO TAKE UP THE CONTRACT WITH T HE INDIAN OIL CORPORATION ON THE EXPECTATION THAT THE U.K. COMPAN Y WOULD INDEMNIFY THE ASSESSEE IF THE ASSESSEE SUFFERED A LOSS IN EXE CUTING THE WORK. NO CONSIDERATION PASSED FROM THE ASSESSEE TO THE U.K. COMPANY FOR THE SAID PAYMENT AND NO QUID PRO QUO WAS INVOLVED. THE FACT THAT AT THE RELEVANT TIME THE ASSESSEE WAS A SUBSIDIARY OF THE U.K. COM PANY WOULD MAKE NO DIFFERENCE TO THE LEGAL POSITION. THE U.K. COMPA NY AND THE ASSESSEE AT ALL MATERIAL TIMES WERE AND REMAINED DIFFERENT ENTI TIES. SIMILARLY THE FACT THAT THERE WERE PRIOR DISCUSSIONS BETWEEN THE ASSESSEE AND THE U.K. COMPANY REGARDING THE METHOD AND MANNER OF THE PAYM ENT AND DETERMINATION OF THE QUANTUM TO BE PAID WOULD NOT A FFECT THE CHARACTER OF THE RECEIPT. THERE IS NOTHING TO BAR CONSULTATION A ND DISCUSSION BETWEEN A DONOR AND A DONEE. THE FACT THAT THE AMOUNT RECEI VED FROM U.K. COMPANY HAD BEEN SHOWN IN THE PROFIT AND LOSS ACCOU NT OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR UNDER THE HEAD IN COME FROM OTHER SOURCES WOULD ALSO NOT BE DECISIVE IN THE DETERMIN ATION OF THE CHARACTER OF THE RECEIPT. THE SUM OF RS.22.5 LAKHS RECEIVABLE BY THE ASSESSEE FROM ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 11 THE U.K. COMPANY WITH REFERENCE TO THE BARODA REFIN ERY PROJECT WAS NOT OF THE CHARACTER OF INCOME. HELD ALSO THAT THE TRIBUNAL WAS RIGHT IN HOLDING THAT IN ANY EVENT NO RIGHT TO RECEIVE THE AMOUNT PAID BY THE U.K. COMPAN Y ACCRUED TO THE ASSESSEE DURING THE RELEVANT ACCOUNTING YEAR. 22. THE JURISDICTIONAL HIGH COURT IN THE CASE OF MEHBOO B PRODUCTIONS P. LTD. REPORTED AT 106 ITR 758 LAID DOWN THAT ALL REC EIPTS BY THE ASSESSEE WOULD NOT NECESSARILY BE DEEMED TO BE INCOME OF THE ASSESSEE FOR THE PURPOSE OF INCOME TAX AND THE QUESTION WHETHER ANY PARTICULAR RECEIPT IS INCOME OR NOT WILL DEPEND ON THE NATURE OF THE RECE IPT AND TRUE SCOPE AND EFFECT OF THE RELEVANT TAXING PROVISION. THE MUMBAI B BENCH OF THE TRIBUNAL IN THE CASE OF ESSAR TELEHOLDINGS WAS CONS IDERING A CASE WHERE ONE SCL IRREVOCABLY GIFTED SUCH DEBT OF RS.275.5 CRORES BY WAY OF ITS RESOLUTION OF THE BOARD MEETING AND THE ASSESSEE ACCEPTED THE GIFT AND A DEED OF CONFIRMATION WAS ENTERED INTO BETWEEN BOTH THE PART IES. ON THESE FACTS THE TRIBUNAL FOUND THAT THE OBJECTION OF THE A.O. THAT THE GIFTED PROPERTY DOES NOT HAVE ANY VALUE AS ON THE DATE OF GIFT IS DEVOID OF MERIT. IT HELD THAT THE CONDITIONS OF SECTION 122 OF THE TRANSFER OF PROPER TY ACT WERE FULFILLED. THIS BRINGS US TO THE CASE LAW RELIED UPON BY THE LEARNE D D.R. IN THE LAW LEXICON GIFT HAS BEEN DEFINED AS FOLLOWS: - GIFT . A VOLUNTARY CONVEYANCE; THAT IS A CONVEYANCE NOT FOUNDED ON CONSIDERATION OF MONEY OR MONEYS WORTH. GIFT IS THE TRANSFER OF CERTAIN EXISTING MOVEABLE OR IMMOVABLE PROPERTY MAD E VOLUNTARILY AND WITHOUT CONSIDERATION BY ONE PERSON CALLED THE DO NOR TO ANOTHER CALLED DONEE AND ACCEPTED BY OR ON BEHALF OF THE DONEE. AC T IV OF 1882 (TRANSFER OF PROPERTY) S. 122. A GIFT IS THE ACT BY WHICH THE OWNER OF A THING VOLUNTARILY TRANSFERS THE TITLE AND POSSESSIO N OF THE SAME FROM HIMSELF TO ANOTHER PERSON WITHOUT ANY CONSIDERATION . GIFTS ARE OF TWO KINDS: (1) GIFTS INTER VIVOS AND (2) GIFTS CAUSA M ORTIS. 23. IN THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN TH E CASE OF KU. SONIA BHATIA VS. STATE OF U.P. AND OTHERS AIR 1981 SC 127 4 IT IS HELD AS FOLLOWS: - THE CONCEPT OF GIFT IS DIAMETRICALLY OPPOSED TO T HE PRESENCE OF ANY CONSIDERATION OR COMPENSATION. A GIFT HAS APTLY BEE N DESCRIBED AS A GRATUITY AND AN ACT OF GENEROSITY AND STRESS IS ON THE FACT THAT IF THERE IS ANY CONSIDERATION THEN THE TRANSACTION CEASES TO BE A GIFT. COMPLETE ABSENCE OF CONSIDERATION IS THE MAIN HALLMARK WHICH DISTINGUISHES A GIFT FROM A GRANT OR FOR THAT MATTER OTHER TRANSACTIONS WHICH MAY BE FOR VALUABLE OR ADEQUATE CONSIDERATION. ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 12 A GIFT IS UNDOUBTEDLY A TRANSFER WHICH DOES NOT CO NTAIN ANY ELEMENT OF CONSIDERATION IN ANY ELEMENT OF CONSIDERATION IN ANY SHAPE OR FORM. IN FACT WHERE THERE IS ANY EQUIVALENT OR BENEFIT MEAS URED IN TERMS OF MONEY IN RESPECT OF A GIFT THE TRANSACTION CEASES T O BE A GIFT AND ASSUMES A DIFFERENT COLOUR. THE MOTIVE OR THE PURPO SE OF MAKING A GIFT SHOULD NOT BE CONFUSED WITH THE CONSIDERATION WHICH IS THE SUBJECT MATTER OF THE GIFT. LOVE AFFECTION SPIRITUAL BENE FIT AND MANY OTHER FACTORS MAY ENTER IN THE INTENTION OF THE DONOR TO MAKE A G IFT BUT THESE FILIAL CONSIDERATIONS CANNOT BE CALLED OR HELD TO BE LEGAL CONSIDERATIONS AS UNDERSTOOD BY LAW. IT IS MANIFEST THEREFORE THAT T HE PASSING OF MONETARY CONSIDERATION IS COMPLETELY FOREIGN TO THE CONCEPT OF A GIFT HAVING REGARD TO THE NATURE OF CHARACTER AND THE CIRCUMSTANCES UN DER WHICH SUCH A TRANSFER TAKES PLACE. 24. IN THE ABOVE JUDGEMENT RELIED UPON BY THE LEARNED D .R. IT IS CLEARLY LAID DOWN THAT A GIFT IS A RECEIPT OF MONEY WHERE N O CONSIDERATION OF MONEY OR MONEYS WORTH IS INVOLVED. IT IS A VOLUNTARY ACT AND DOES NOT CONTAIN ANY ELEMENT OF CONSIDERATION IN ANY SHAPE OR FORM. MONE Y RECEIVED FROM A HOLDING COMPANY WITH WHOM THE ASSESSEE DOES NOT HAV E ANY TRADING OR BUSINESS TRANSACTION CANNOT BE CONSIDERED AS TRADIN G RECEIPT. WHEN THERE IS NO CONTRACTUAL AGREEMENT OR A RIGHT TO RECEIVE THE AMOUNT IS NOT TAXABLE AS INCOME. APPLYING THESE PRINCIPLES TO THE FACTS OF T HE CASE WE HAVE NO HESITATION IN UPHOLDING THE FINDING OF THE CIT(A) T HAT THE GIFT IN QUESTION CANNOT BE CONSIDERED AS INCOME. COMING TO THE ENTRI ES IN THE BOOKS OF ACCOUNT IT IS WELL SETTLED THAT ENTRIES IN THE BOO KS OF ACCOUNT DO NOT DETERMINE THE TAXABILITY OR OTHERWISE OF A RECEIPT. IN THE RESULT WE DISMISS THIS GROUND OF THE REVENUE. 25. GROUND NO. 4 IS ON ADDITION OF BAD DEBTS WRITTEN OF F. THE ASSESSEE HAS WRITTEN OFF CERTAIN DEBTS AS BAD. THE ISSUE OF ALLO WABILITY OF BAD DEBTS IS DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. STAR CHEMICALS PVT. LT D. 313 ITR 126. THE HON'BLE BOMBAY HIGH COURT HAS ALSO AFFIRMED THE JUD GEMENT OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF OMAN INTERNATI ONAL BANK IN THE CASE REPORTED IN 313 ITR 128. RESPECTFULLY FOLLOWING THE SAME WE UPHOLD THE ORDER OF THE CIT(A) ON THIS ISSUE. WE ALSO NOTE THA T THE CIT(A) HAS GIVEN A CLEAR FINDING OF FACTS THAT THE AMOUNTS WHICH WERE WRITTEN OFF IN THE BOOKS WERE OFFERED TO TAX AS INCOME IN THE EARLIER YEARS. THIS FACTUAL FINDING IS NOT DISPUTED BEFORE US. THUS GROUND NO. 4 OF REVENUE IS DISMISSED. ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 13 26. GROUND NO. 5 IS AGAINST DISALLOWANCE OF THE PROVISI ON FOR LEAVE ENCASHMENT LIABILITY WHICH WAS MADE BY THE A.O. BUT ALLOWED BY THE CIT(A). THE ASSESSEE CLAIMED AS A DEDUCTION INCREMENTAL LIA BILITY TOWARDS LEAVE ENCASHMENT OF SALARY COMPUTED ON THE BASIS OF ACTUA RIAL VALUATION. THE A.O. DISALLOWED THIS CLAIM BUT THE FIRST APPELLATE AUTHO RITY APPLIED THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF BHARAT EARTH MOVERS LTD. 245 ITR 428 AND ALLOWED THE CLAIM OF THE ASSESSEE. 27. AFTER HEARING THE RIVAL CONTENTIONS WE FIND THAT TH E TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEARS 1996-97 AN D 1997-98 HAD ALLOWED SIMILAR ISSUE. THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF BHARAT EARTH MOVERS IS IN FAVOUR OF THE ASSESSEE. R ESPECTFULLY FOLLOWING THE SAME WE DISMISS GROUND NO. 5. 28. GROUND NO. 6.1 IS ON COMPUTATION OF RELIEF UNDER SE CTION 80HHF ON: (A) SERVICE FEES (B) SUBSCRIPTION FEES (C) SERVIC E INCOME (D) INCOME FROM MUSIC SEGMENT AND (E) INCOME FROM SALE OF MUSIC RI GHTS. THE NATURE OF EACH OF THESE INCOMES IS AS FOLLOWS: - SERVICE FEES : SERVICE FEES IS INCOME FROM ACTING AS ADVERTISIN G AGENT OF SET SINGAPORE RECOGNIZED WHEN THE ADVERTISEMENT IS TRANSMITTED IS RECEIVED FROM THE PRINCIPLE. SERVICES ARE RENDERED IN RESPECT OF COORDINATION WITH VARIOUS AD AGENCIES AND COLLECTIO N SERVICE IS ALSO PROVIDED. ADVERTISING SALES AGENCY AGREEMENT HAS BEEN ENTERED INTO BETWEEN SET INDIA AND SET SINGAPORE WHEREIN SET INDIA AGREES T O PROVIDE SET SINGAPORE SALES AGENCY SERVICES INCLUDING SALE OF A D TIME AND VARIOUS RELATED SERVICES. IN TURN SET SINGAPORE PAYS SERVIC E FEES AS AGREED BETWEEN BOTH THE PARTIES. PAYMENT FROM ADVERTISERS ARE RECEIVED IN A SEPARATE BANK ACCOUNT FROM WHERE SET INDIA GETS ITS SHARE OF COMMISSION AND TH EN THE BALANCE IS REMITTED TO SET SINGAPORE. SUBSCRIPTION INCOME : SET INDIA DISTRIBUTES VARIOUS SATELLITE CHANNELS LIKE SONY SET MAX CNBC AND HBO IN INDIA. FOR THIS IT HAS ENTERED INTO AGREEMENT WITH VARIOUS CABLE OPERATORS/DISTRIBUTORS /MSOS. THE SUBSCRIPTION REVENUE IS COLLECTED FROM SUCH CABLE O PERATORS/DISTRIBUTORS AND 100% OF THE SAID REVENUES ARE RETAINED BY SET I NDIA AS PER THE AGREEMENT BETWEEN SET INDIA AND SET SINGAPORE. SERVICE INCOME : SET INDIA HAS FIXED EPISODE COST TO BE PAID TO PRODUCTION HOUSE AND SAME IS RECOVERED WITH MARK UP OF OVER AND ABOVE FIXED EPISODE COST (GENERALLY IN THE RANGE OF 10 TO 30%) FROM SET SINGAPORE. GROSS AMOUNT RECEIVED FROM SET SINGAPORE IS RECORDED AS ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 14 INCOME FROM SALE OF PROGRAMS. SOMETIMES OVER AND AB OVE FIXED EPISODE COST PRODUCTION HOUSE INCURS ADDITIONAL COST WHIC H IS ALSO RECOVERED FROM SET SINGAPORE WITH MARK UP. THIS ADDITIONAL AM OUNT IS RECORDED AS SERVICE INCOME IN BOOKS OF ACCOUNTS (THOUGH THE NAT URE OF INCOME IS INCOME FROM SALE OF PROGRAMS) AND EXPENSES/COST OF THE SAME IS BOOKED UNDER THE HEAD COST OF PROGRAMS. INCOME FROM MUSIC SEGMENT : CHARGES/FEES RECEIVED FROM PRODUCER OF FILM FOR SHOWING VIDEO CLIPPING (PROMOS) OF FILM ON CHANNEL (BETWEEN TWO PROGRAMS IN THE CHANNEL) IS RECORDED AS INCOME FROM MUSIC SEGMENT. FEES ARE ALSO RECEIVED FROM SET SINGAPORE FOR TRANS MISSION OF VIDEO CLIPPING. INCOME FROM MUSIC RIGHTS : SET INDIA HAD ACQUIRED CERTAIN RIGHTS INCLUDING AUDIO COPY RIGHT IN RESPECT OF CERTAIN LI VE EVENTS PERFORMED. SAID RIGHTS WERE SOLD TO SONY MUSIC ENTERTAINMENT ( INDIA) LTD. AND TOTAL CONSIDERATION OF RS.1 CRORE WAS RECEIVED. 29. THE STATEMENT OF EMPLOYEES STRENGTH FILED BY THE AS SESSEE AND PERUSAL OF THE SAMPLE INVOICES OF SERVICE INCOME SAMPLE IN VOICES OF INCOME FROM MUSIC AS WELL AS AGREEMENT WITH SONY MUSIC CLEARLY DEMONSTRATE THAT THESE INCOMES ARE OPERATIONAL INCOMES AND CANNOT BE TERME D AS STAND ALONE INCOMES. THE TRIBUNAL C BENCH IN ASSESSEES OWN C ASE IN ITA NO. 3446/MUM/2002 FOR A.Y. 1998-99 ORDER DATED 7 TH DECEMBER 2005 WHEREIN AT PARA 11 ON PAGE 5 THE TRIBUNAL FOLLOWED THE JUDGEME NT OF THE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF CIT VS. BANGALOR E CLOTHING CO. 260 ITR 371 AS WELL AS THE JUDGEMENT OF THE MADRAS ITAT IN THE CASE OF A.O. VS. ASWINI FISHERIES LTD. 77 ITD 561 AND DECIDED THE ISSUE OF SERVICE CHARGES IN FAVOUR OF THE ASSESSEE. SIMILARLY IN THE CASE OF SUBSCRIPT ION INCOME FOR THE VERY SAME REASONS AS CITED IN THE CASE OF SERVICE FEES SUBSCRIPTION INCOME IS OPERATIONAL INCOME AND CANNOT BE SAID THAT IT IS AN INDEPENDENT INCOME UNCONNECTED WITH THE OPERATIONS OF THE ASSESSEE. SI MILAR IS OUR FINDING ON MUSIC SEGMENT INCOME AND INCOME FROM SALE OF MUSIC RIGHTS. THUS WE UPHOLD THE FINDINGS OF THE LEARNED CIT(A). THIS BENCH OF T HE TRIBUNAL IN THE CASE OF AACIT VS. STAR INDIA PVT. LTD. 22 SOT 444 (MUM) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. THUS RESPECTFULLY FOLLOWIN G THE SAME WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS REVENUES GROUND. 30. COMING TO GROUND NO.6.2 ASSESSEES CONTENTION IS TH AT IF CERTAIN INCOMES AS SUCH MISCELLANEOUS INCOME CONSULTANCY C HARGE GIFT INTEREST INCOME AND FOREIGN EXCHANGE GAIN ARE TO BE REDUCED FROM THE PROFIT OF ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 15 BUSINESS THEN THESE AMOUNTS SHOULD BE REDUCED FROM TOTAL TURNOVER FOR THE PURPOSE OF COMPUTATION OF DEDUCTION UNDER SECTION 8 0HHF. FOR THIS PROPOSITION DECISION OF THE HON'BLE BOMBAY HIGH COU RT IN THE CASE OF CIT VS. KANTILAL CHHOTALAL 246 ITR 439 IS PLACED ON RECORD. 31. AFTER HEARING THE RIVAL CONTENTIONS WE FIND THAT TH E HON'BLE BOMBAY HIGH COURT IN THE CASE OF KANTILAL CHHOTALAL (SUPRA ) HAS HELD THAT THE INCOME WHICH HAS NO NEXUS WITH EXPORT ACTIVITY HAS TO BE E LIMINATED FROM HE PROFITS OF BUSINESS. IT IS FURTHER HELD THAT SUCH RECEIPTS WHI CH DO NOT FORM PART OF EXPORT TURNOVER CANNOT BE INCLUDED IN THE TOTAL TURNOVER F OR THE PURPOSE OF COMPUTATION OF RELIEF UNDER SECTION 80HHC. APPLYING THE RATIO OF THIS DECISION TO THE FACTS OF THE CASE WE UPHOLD THE DECISION OF THE FIRST APPELLATE AUTHORITY AND DISMISS THIS GROUND OF THE REVENUE. 32. APPEAL OF THE REVENUE IS ALLOWED IN PART. 33. WE NOW CONSIDER THE ASSESSEES APPEAL IN ITA NO. 66 02/MUM/2004. THE FIRST ISSUE IN ASSESSEES APPEAL IS ON RATE OF DEPR ECIATION ALLOWABLE ON INTEGRATED RECEIVERS AND DECODERS. THE ASSESSEES C LAIM IS THAT THE SAME SHOULD BE CLASSIFIED AS COMPUTERS AND NOT PLANT AND MACHINERY AND THAT DEPRECIATION SHOULD BE ALLOWED AT THE RATE OF 60%. BOTH THE PARTIES ADMITTED THAT THE ISSUE HAD COME UP BEFORE THE TRIBUNAL IN A SSESSEES OWN CASE FOR A.Y. 2000-01 AND THE TRIBUNAL HAD SET ASIDE THE ISSUE TO THE FILE OF THE A.O. RESPECTFULLY FOLLOWING THE SAME WE SET ASIDE THIS ISSUE TO THE FILE OF THE A.O. WITH THE DIRECTION TO FOLLOW THE DIRECTION OF THIS BENCH FOR A.Y. 2000-01 ON THIS ISSUE AND TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. 34. GROUND NO. 2 IS ON THE ISSUE OF EXPENDITURE INCURRE D ON LEASEHOLD PREMISES. THE ASSESSEE CLAIMED THE ENTIRE EXPENDITU RE AS BEING REVENUE IN NATURE WHEREAS THE FIRST APPELLATE AUTHORITY HAD TR EATED CERTAIN EXPENDITURE AS THAT WHICH IS INCURRED IN THE CAPITAL FIELD. SIMILA R ISSUE HAS BEEN DISCUSSED BY US IN THE REVENUE APPEAL WHILE DISPOSING OFF GROUND NO. 1. CONSISTENT WITH THE VIEW TAKEN THEREIN WE HOLD THAT THE EXPENDITURE IN QUESTION IS REVENUE EXPENDITURE AND THE CLAIM OF THE ASSESSEE IS TO BE ALLOWED. IN THE RESULT GROUND NO. 2 OF THE ASSESSEE IS ALLOWED. ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 16 35. GROUND NO. 3 IS ON COMPUTATION OF RELIEF UNDER SECT ION 80HHF IN RESPECT OF CERTAIN MISCELLANEOUS INCOME THE NATURE OF WHICH IS DISCUSSED HEREINABOVE. 36. AFTER HEARING THE RIVAL CONTENTIONS WE FIND THAT TH E TEST TO BE APPLIED IS WHETHER THE INCOME IN QUESTION CAN BE TERMED AS OPERATIONAL INCOME AND WHETHER THE INCOME CAN STAND ON ITS OWN I.E. UNCON NECTED WITH THE OPERATIONS WHICH RESULT IN THE ASSESSEE EARNING INC OME WHICH CAN BE CLAIMED AS DEDUCTION UNDER SECTION 80HHF. THE NATUR E OF INCOME IN QUESTION IS AS FOLLOWS: - INCOME AMOUNT (INR) EXPLANATION RECOVERY OF DVNR CHARGES 27 43 500/- PRODUCTION HOUSES WHO SUPPLIES PROGRAMS TO SET INDIA ARE REQUIRED TO OBSERVE AND MEET CERTAIN PRODUCTION STANDARDS. SET INDIA EVALUATES EACH AND EVERY EPISODE OF A PROGRAM SUPPLIED BY PRODUCTION HOUSES. SOME MINOR DEFECTS OBSERVED BY SET INDIA ARE CORRECTED BY SET INDIA IN THEIR OWN POST PRODUCTION FACILITY. SINCE PRODUCTION HOUSES DID NOT SUPPLY PROGRAM AS PER THE STANDARDS GIVEN BY THE SET INDIA CERTAIN AMOUNT IS RECOVERED FROM PRODUCTION HOUSES. THIS RECOVERY IS SHOWN AS DVNR CHARGES. (SAMPLE INVOICE OF FY 01-02 IS ATTACHED.) AMOUNT RECOVERED TOWARDS MARKETING AND OTHER GENERAL & ADMINISTRATION EXPENSES 1 21 79 554/- MARKETING EXPENSES INCURRED FOR PROMOTION OF CNBC CHANNEL RECOVERED FROM THE PARTY TV 18 MAURITIUS (VOUCHER AND AGREEMENT ATTACHED.) COST OF FILLERS 4 25 000/- AMOUNT REPRESENTS COST OF ADVICE/PREPARATION RENDERED FOR PRODUCTION OF PROMOS/FILLERS/ QUOTES (SAMPLE VOUCHER ATTACHED) AMOUNT WRITTEN OFF EARLIER NOW RECOVERED 2 80 000/- ADVANCE AMOUNT GIVEN TO CREST COMMUNICATION FOR SERIAL PEHLA PYAAR WAS WRITTEN OFF IN THE EARLIER YEAR NOW RECOVERED IN THE AY 01-02. OTHERS 906/- TOTAL 1 56 28 960/- 37. THE ASSESSEE HAS FILED CERTAIN DEBIT NOTES TO DEMO NSTRATE ITS POINT THAT THE INCOME IN QUESTION IS OPERATION INCOME. RE GARDING RECOVERY OF EXPENDITURE WITH CNBC THE FOLLOWING NOTE IS FILED BY THE ASSESSEE WHICH IS AT PAGE 5 OF THE ASSESSEES PAPER BOOK WHICH IS EX TRACTED FOR READY REFERENCE: - DURING THE YEAR THE ASSESSEE WAS DISTRIBUTOR OF C NBC CHANNEL AND HAS EARNED INCOME WHICH IS BOOKED UNDER THE HEAD SUBSC RIPTION INCOME. IN ADDITION AS PER THE AGREEMENT THE ASSESSEE INCURRE D EXPENSES ON MARKETING AND PR WHICH ARE SEPARATELY RECOVERED. P LEASE REFER CLAUSE ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 17 12 OF THE AGREEMENT WITH TELEVISION EIGHTEEN MAURIT IUS LIMITED AND TELEVISION EIGHTEEN INDIA AND WHICH IS ENCLOSED. THIS RECOVERY IS RECORDED AS MISC. INCOME THROUGH IT IS NOT INCOME JUST REIMBURSEMENT OF EXPENDITURE INCURRED FOR AND ON BE HALF OF CNBC. 38. ON A PERUSAL OF THE NATURE OF INCOME AND EVENTS THA T GAVE RISE TO THE SAME WE ARE OF THE CONSIDERED OPINION THAT RECOVERY DNVR CHARGES IS NOTHING BUT OPERATIONAL INCOME. THE AMOUNT RECOVERED TOWARD S MARKETING AND GENERAL ADMINISTRATION EXPENSES FOR PROMOTION OF CN BC CHANNEL IS REIMBURSEMENT OF EXPENDITURE THOUGH RECORDED AS MI SCELLANEOUS INCOME. HENCE THIS CANNOT BE CONSIDERED AS A SEPARATE SOUR CE OF INCOME WHICH IS INDEPENDENT OF THE OPERATIONS OF ASSESSEE. IN ANY E VENT IT HAS TO BE VERIFIED WHETHER AN ELEMENT OF PROFIT IS THERE IN THIS AMOUN T RECOVERED BY THE ASSESSEE. IF IT IS JUST REIMBURSEMENT OF EXPENSES W ITHOUT AN ELEMENT OF PROFIT THE ASSESSEE STANDS SUCCEED ON THIS ISSUE. THUS WE SET ASIDE THE ISSUE TO THE FILE OF THE A.O. FOR FRESH DECISION WITH THE DIREC TION THAT IF IT IS MERE REIMBURSEMENT OF ACTUAL EXPENDITURE IT CANNOT BE T ERMED AS INCOME. ONLY IN CASE THE ASSESSEE HAS CHARGED TELEVISION EIGHT MAU RITIUS ON COST + BASIS THEN THE INCOME TO THE EXTENT OF PROFIT EARNED ON S UCH AMOUNT RECOVERED IS TO BE ELIMINATED FROM THE PROFITS OF BUSINESS FOR THE PURPOSE OF COMPUTATION OF RELIEF UNDER SECTION 80HHF. COMING TO RECOVERY OF A MOUNTS EARLIER WRITTEN OFF THE PROFITS OF BUSINESS HAD BEEN REDUCED WHEN THE A MOUNT WAS WRITTEN OFF AS A BAD DEBT AND NOW ON RECOVERY OF THE SAME THIS ENT RY IS TO BE REVERSED AND THE PROFITS FROM INCOME HAS TO BE ACCORDINGLY INCRE ASED. THUS WE ARE OF THE CONSIDERED OPINION THAT THE AMOUNT WRITTEN BACK WH ICH ARE GIVEN IN GREATER DETAIL AT PAGE NO. 26 OF THE PAPER BOOK SHOULD BE T REATED AS BUSINESS INCOME AND THE ASSESSEE IS ENTITLED FOR DEDUCTION UNDER SE CTION 80HHF. THUS THIS GROUND OF THE ASSESSEE IS ALLOWED IN PART. 39. ASSESSEE HAS RAISED AN ALTERNATIVE CONTENTION THAT WHEREVER IT IS HELD THAT THE MISCELLANEOUS INCOME IS TO BE REDUCED FROM THE PROFITS OF BUSINESS THEN ONLY 90% OF THE NET RECEIPT SHOULD BE REDUCED. RELIANCE IS PLACED ON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SHRI RAM HONDA POWER EQUIP 289 ITR 475 AND OTHER DECISIONS. WE APPLY THIS PROPOSITION LAID DOWN BY THE HON'BLE DELHI HIGH COU RT ON THIS ISSUE OF ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 18 NETTING TO THE FACTS OF THE CASE AND DIRECT THE A.O . TO REDUCE ONLY 90% OF THE NET RECEIPTS WHEREVER IT HAS BEEN DECIDED THAT PAR TICULAR INCOME SHOULD BE ELIMINATED FROM THE PROFITS OF BUSINESS FOR THE PUR POSE OF COMPUTATION OF RELIEF UNDER SECTION 80HHF. 40. NEXT ISSUE IS ON THE DEDUCTION UNDER SECTION 80HHF OF CONSULTANCY FEES. AFTER HEARING THE RIVAL CONTENTIONS WE ARE OF THE CONSIDERED OPINION THAT CONSULTANCY FEES CAN BE CONSIDERED AS INCOME W HICH IS ON ITS OWN AND HAS TO BE ELIMINATED FROM PROFITS OF BUSINESS FOR T HE PURPOSE OF COMPUTATION OF RELIEF UNDER SECTION 80HHF. IN ANY EVENT AS IN E ARLIER CASE WE APPLY THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CAS E OF SHRI RAM HONDA EQUIP AND THE JUDGEMENT OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF LALSON ENTERPRISES VS. DCIT (SB) DEL) 89 ITD 25 AND DIRECT THE A.O. TO REDUCE ONLY 90% OF THE NET RECEIPTS FROM CONSULTATI ON FEES. 41. NEXT GROUND IS ON THE DISALLOWANCE OF DEDUCTION IN RESPECT OF ADVANCE WRITTEN OFF. THE DETAILS ARE GIVEN AT PAGE 26 OF AS SESSEES PAPER BOOK WHICH IS ABSTRACTED FOR READY REFERENCE: - PARTICULARS AMOUNT (INR) EXPLANATION MIDAS EVENTS 3 75 000/- ADVANCE AMOUNT PAID TO PARTY FOR THE PROMOTION OF RECENTLY LAUNCH AXN CHANNEL BY SPORTS ADVENTURES EVEN NAMELY BUNGEE JUMPING. EVENT WAS SUPPOSED TO BE HELD IN MUMBAI. ON THE DATE OF EVENT DUE TO NATURAL CALAMITIES EVENTS COULD NOT HAPPEN AND SUBSEQUENTLY EVENTS COULD NOT HAPPEN AT ALL. HENCE ADVANCE GIVEN TO THE PARTY WRITTEN OFF. (COPY OF PARTY LEDGER ACCOUNT BANK PAYMENT VOUCHER IS ENCLOSED) MEDIA WARE INFOTEC P. LTD. 1 30 000/- ADVANCE WAS GIVEN IN THE EARLIER YEAR TO THE PARTY FOR DEVELOPMENT/UPGRADATION OF TMS SOFTWARE FOR REVENUE MANAGEMENT DEPARTMENT. SINCE SOFTWARE WAS NOT DEVELOPED AMOUNT PAID WAS WRITTEN OFF (JV VOUCHER ATTACHED). TOTAL 5 05 000/- 42. AFTER CONSIDERING THE RIVAL CONTENTIONS WE ARE OF THE CONSIDERED OPINION THAT THE ADVANCE AMOUNT PAID TO A PARTY FO R PROMOTION OF EVENT BY NAME BUNGEE JUMPING WAS IN CONNECTION WITH THE BU SINESS OF THE ASSESSEE AND WHEN THE SAME IS WRITTEN OFF FOR WHAT EVER REASONS IT IS A BUSINESS LOSS AND HAS TO BE ALLOWED AS SUCH. COMING TO THE ADVANCE TO A PARTY OF DEVELOPMENT AND UPGRADATION OF TMS SOFTWAR E THE ASSESSEE HAS ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 19 WRITTEN OF THE SAME AS IT HAS NOT RECEIVED THE SOFT WARE IN QUESTION. THE SOFTWARE WAS TO BE USED FOR THE REVENUE MANAGEMENT DEPARTMENT. WE ARE OF THE CONSIDERED OPINION THAT THE WRITE OFF OF A BUSI NESS LOSS AND IS TO BE ALLOWED AS SUCH. IN THE RESULT GROUND OF THE ASSES SEE IS ALLOWED. 43. GROUND NOS. 8 & 9 IS ON LEVY OF INTEREST UNDER SECT ION 234D. ADMITTEDLY THE ISSUE IS NOW COVERED IN FAVOUR OF TH E ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF EKTA PROMOTERS 305 ITR 1 (DEL). RESPECTFULLY FOL LOWING THE SAME WE ALLOW THE GROUND OF THE ASSESSEE. 44. APPEAL OF THE ASSESSEE IS ALLOWED IN PART. 45. THIS LEAVES US WITH THE CROSS OBJECTION CO NO. 134/ MUM/2005. AFTER HEARING THE REVENUES SUBMISSION WE HOLD AS FOLLOWS 46. GROUND NO. 1 OF THE CROSS OBJECTION IS DISMISSED AS NOT PRESSED. 47. GROUND NO. 2 IS AN ALTERNATIVE GROUND AND IN VIEW O F OUR FINDINGS IN THE REVENUE APPEAL IN THIS GROUND IS DISMISSED AS C ONSEQUENTIAL WHICH NEED NOT BE ADJUDICATED. 48. SIMILARLY GROUND NOS. 3 & 4 ARE ALTERNATIVE GROUNDS AND FOR THE SAME REASONS GIVEN WHILE DISPOSING OFF GROUND NO. 2 WE ARE OF THE OPINION THAT THESE GROUNDS ARE TO BE DISMISSED AS THEY HAVE BEEN COME ACADEMIC IN VIEW OF OUR DECISION IN THE REVENUE APPEAL. 49. GROUND NO. 5 IS ALSO AN ALTERNATIVE GROUND ON THE I SSUE OF GIFT RECEIVED FROM SPE MAURITIUS HOLDING LTD. IN VIEW OF OUR DECI SION IN THE REVENUE APPEAL THIS GROUND DOES NOT SURVIVE. IN THE RESULT GROUND OF THE ASSESSEE IS DISMISSED. 50. IN THE RESULT THE CROSS OBJECTION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH FEBRUARY 2010. SD/- SD/- (R.S. PADVEKAR) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED:12 TH FEBRUARY 2010 ITA NO. 6775 & 6602/MUM/2004 & CO M/S. SET INDIA PVT. LTD. 20 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XI MUMBAI 4. THE CIT XI MUMBAI CITY 5. THE DR L BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.