FIRST GLOBAL STOCKBROKING PVT. LTD., MUMBAI v. DCIT RANGE 4(1), MUMBAI

ITA 1243/MUM/2014 | 2010-2011
Pronouncement Date: 05-10-2016 | Result: Partly Allowed

Appeal Details

RSA Number 124319914 RSA 2014
Assessee PAN AAACF0661K
Bench Mumbai
Appeal Number ITA 1243/MUM/2014
Duration Of Justice 2 year(s) 7 month(s) 8 day(s)
Appellant FIRST GLOBAL STOCKBROKING PVT. LTD., MUMBAI
Respondent DCIT RANGE 4(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 05-10-2016
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted F
Tribunal Order Date 05-10-2016
Date Of Final Hearing 03-10-2016
Next Hearing Date 03-10-2016
Assessment Year 2010-2011
Appeal Filed On 25-02-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH MUMBAI BEFORE SHRI JASON P. BOAZ ACCOUNTANT MEMBER AND SHRI SANDEEP GOSAIN JUDICIAL MEMBER ITA NO. 1243/MUM/2014 (ASSESSMENT YEAR: 2010-11) FIRST GLOBAL STOCKBROKING P. LTD. VS. DCIT RANGE 4(1) #2 CRESCENT CHAMBERS 4 TH FLOOR TAMARIND LANE FORT MUMBAI 400001 ROOM NO. 640 6 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI 400020 PAN AAACF0661K APPELLANT RESPONDENT APPELLANT BY: SHRI SATISH R. MODY RESPONDENT BY: SHRI MALLIKARJUN UTTURE DATE OF HEARING: 03.10.2016 DATE OF PRONOUNCEMENT: 05.10.2016 O R D E R PER JASON P. BOAZ A.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)- 8 MUMBAI DATED 10.12.2013 FOR A.Y. 2010-11. 2. THE FACTS OF THE CASE BRIEFLY ARE AS UNDER: - 2.1 THE ASSESSEE A COMPANY ENGAGED IN BUSINESS AS SHARE BROKER FILED ITS RETURN OF INCOME FOR A.Y. 2010-11 ON 08.10.2010 DECLARING TOTAL INCOME OF RS.50 49 390/- AFTER SETTING OFF BUSINESS LOSS O F RS.2 01 95 300/-. BOOK PROFITS UNDER SECTION 115JB OF THE ACT WAS COMPUTE D AT RS.1 28 29 061/-. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF TH E INCOME TAX ACT 1961 (IN SHORT 'THE ACT') AND THE CASE WAS SUBSEQU ENTLY TAKEN UP FOR SCRUTINY. THE ASSESSMENT WAS COMPLETED UNDER SECTIO N 143(3) OF THE ACT VIDE ORDER DATED 12.12.2012 WHEREIN THE INCOME OF THE ASSESSEE UNDER NORMAL PROVISIONS WAS DETERMINED AT RS.64 58 213/- IN VIEW OF THE FOLLOWING ADDITIONS/DISALLOWANCES: - (I) UNDER SECTION 14A ` 4 90 318/- (II) UNDER SECTION 40(A)(IA) ` 9 18 509/- ITA NO. 1243/MUM/2014 FIRST GLOBAL STOCKBROKING P. LTD. 2 BOOK PROFITS UNDER SECTION 115JB OF THE ACT WAS COMPUTED AT ` 1 33 19 379/- . 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT DATED 12.1 2.2012 FOR A.Y. 2010-11 THE ASSESSEE PREFERRED AN APPEAL BEFORE TH E CIT(A)-8 MUMBAI. THE LEARNED CIT(A) DISMISSED THE ASSESSEES APPEAL VIDE THE IMPUGNED ORDER DATED 10.12.2013. 3. AGGRIEVED BY THE ORDER OF THE CIT(A)-8 MUMBAI DATE D 10.12.2013 FOR A.Y. 2010-11 THE ASSESSEE HAS PREFERRED THIS APPEA L RAISING THE FOLLOWING GROUNDS: - 1. THE LD. CIT(APPEALS)-8 HAS ERRED IN CONFIRMING THE DISALLOWANCE OF AN AMOUNT OF RS. 4 90 318/- U/S 14A OF THE L.T. ACT MADE BY THE LD. ASSESSING OFFICER. THIS DISALLOWANCE IS AGAINST THE LAW AND FACTS OF THE CASE AND MAY PLEASE BE DELETED. 2. THE LD. CIT(APPEALS)-8 HAS ERRED IN CONFIRMING T HE DISALLOWANCE OF AN AMOUNT OF RS.9 18 509/- U/S 40(A)(IA) OF THE ACT MADE BY THE LD. ASSESSING OFFICER FOR NON-DEDUCTION OF TDS BY T HE APPELLANT FOR PAYMENT MADE TO THE STOCK EXCHANGES. THIS DISALLOWA NCE IS AGAINST THE LAW AND FACTS OF THE CASE AND MAY PLEAS E BE DELETED. 3. THE LD. CIT(APPEALS)-8 HAS ERRED IN DISMISSING T HE GROUND AS INFRACTUOUS WHEREBY THE LD. ASSESSING OFFICER HAD E RRED IN COMPUTING AN AMOUNT OF RS.14 60 000/- AS DEEMED DIV IDEND U/S 2(22)( E) OF THE ACT PURPORTEDLY TO BE DISALLOWED I N THE HANDS OF VIRTA TRADE AND AGENCIES PVT. LTD. THIS COMPUTATION BY THE LD. ASSESSING OFFICER MAY PLEASE BE DELETED. 4. THE APPELLANT CRAVES LEAVE TO ADD AMEND MODIFY OR ALTER THE GROUND AT THE TIME OF HEARING. THE EFFECTIVE GROUND OF APPEAL ARE AT SR.NOS. 1 TO 3 (SUPRA). 4. GROUND NO. 1: DISALLOWANCE UNDER SECTION 14A R.W.S. RULE 8D 4.1 IN THIS GROUND THE ASSESSEE CONTENDS THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF ` 4 90 318/- UNDER SECTION 14A R.W. RULE 8D OF THE I.T. RULES. IT IS SUBMITTED BY THE LEARNE D COUNSEL FOR THE ASSESSEE THAT THE VERY SAME ISSUE OF DISALLOWANCE UNDER SECT ION 14A R.W. RULE 8D WAS BEFORE A COORDINATE BENCH OF THIS TRIBUNAL IN T HE ASSESSEES OWN CASE FOR A.Y. 2009-10 AND THE COORDINATE BENCH IN ITS OR DER IN ITA 966/MUM/2013 DATED 19.03.2015 HAD RESTORED THE MATT ER TO THE FILE OF THE ASSESSING OFFICER (AO) TO RE-WORK THE DISALLOWA NCE IF ANY THEREUNDER ITA NO. 1243/MUM/2014 FIRST GLOBAL STOCKBROKING P. LTD. 3 AFTER TAKING INTO CONSIDERATION THE ASSESSEES CONT ENTION THAT NO SUCH DISALLOWANCE SHOULD HAVE BEEN MADE BY THE AO SINCE ITS INVESTMENTS ARE ENTIRELY IN GROUP CONCERNS WHICH ARE FOREIGN ENTITI ES THE INCOME FROM WHICH INVESTMENTS ARE TAXABLE AS INCOME OF THE ASSE SSEE. IT IS SUBMITTED THAT THE FACTUAL SITUATION BEING THE SAME IN THE YE AR UNDER CONSIDERATION THE MATTER OF RE-WORKING THE DISALLOWANCE UNDER SEC TION 14A R.W. RULE 8D BE RESTORED BACK TO THE FILE OF THE AO FOR VERIFICA TION OF ASSESSEES CLAIM. 4.2 PER CONTRA THE LEARNED D.R. FOR REVENUE PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 4.3.1 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD INCLUDING THE JU DICIAL PRONOUNCEMENTS CITED. IN THIS YEAR THE ASSESSEE HAS EARNED DIVIDE ND INCOME OF RS.15 60 000/-. THE AO COMPUTED THE DISALLOWANCE UN DER SECTION 14A R.W. RULE 8D(2)(III) OF THE ACT AT RS.4 90 318/-; ONLY W ITH RESPECT TO EXPENSES WHICH WILL BE THE AMOUNT EQUAL TO % OF THE AVERAGE VALUE OF INVESTMENT INCOME FROM WHICH DOES NOT FORM PART OF THE TOTAL I NCOME AS APPEARING IN THE BALANCE SHEET OF THE ASSESSEE AS ON THE FIRST A ND LAST DAY OF THE PREVIOUS YEAR UNDER CONSIDERATION. ACCORDING TO THE LEARNED A.R. THE ASSESSEE HAD MADE CERTAIN STRATEGIC INVESTMENTS IN SHARES OF GROUP CONCERNS WHICH ARE FOREIGN ENTITIES THE INCOME FRO M WHICH ARE EXIGIBLE TO TAX AS INCOME OF THE ASSESSEE I.E. FIRST GLOBAL (U K) LTD. AND FG MARKET INC. AND SUBMITTED THAT TO THIS EXTENT AT LEAST TH E INVESTMENTS THEREIN SHOULD BE EXCLUDED FROM THE TOTAL INVESTMENTS WHILE COMPUTING THE DISALLOWANCE UNDER SECTION 14A R.W. RULE 8D OF THE I.T. RULES. 4.3.2 WE FIND THAT THE COORDINATE BENCH OF THIS TRI BUNAL IN THE ASSESSEES OWN CASE FOR A.Y. 2009-10 IN ITS ORDER IN ITA NO. 9 66/MUM/2013 DATED 19.03.2015 HAS RESTORED THIS ISSUE TO THE FILE OF T HE AO FOR VERIFICATION OF THE ASSESSEES SIMILAR CONTENTIONS HOLDING AS UNDER AT PARA 4 THEREOF: - 4. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTEN TIONS HAVE CAREFULLY BEEN CONSIDERED. THE CALCULATION PRESCRIB ED UNDER RULE 8D ITSELF DESCRIBE THAT BASIS OF CALCULATION WILL BE % OF THE AVERAGE OF THE VALUE OF INVESTMENT INCOME FROM WHICH DOES NOT OR SHALL NOT FORM PART OF TOTAL INCOME. THEREFORE THE INVESTMENT OUT OF W HICH INCOME IS ITA NO. 1243/MUM/2014 FIRST GLOBAL STOCKBROKING P. LTD. 4 TAXABLE CANNOT BE INCLUDED FOR THE PURPOSE OF COMP UTATION OF DISALLOWANCE. IN THIS VIEW OF THE SITUATION WE RES TORE THIS ISSUE TO THE FILE OF AO WITH A DIRECTION TO VERIFY SUCH CONTENTI ON OF THE ASSESSEE AND GRANT APPROPRIATE RELIEF. THIS GROUND IS CONSIDERED TO BE PARTLY ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. 4.3.3 FOLLOWING THE DECISION OF THE COORDINATE BENC H OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR A.Y. 2009-10 (SUPRA) W E SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND RESTORE THE ISSUE OF RE-WORK ING THE DISALLOWANCE UNDER SECTION 14A R.W. RULE 8D OF THE I.T. RULES T O THE FILE OF THE AO TO VERIFY THE CONTENTION OF THE ASSESSEE THAT THE INVE STMENTS MADE BY IT IN GROUP CONCERNS FOREIGN ENTITIES THE INCOME OF WH ICH IS EXIGIBLE TO TAX BE EXCLUDED WHILE COMPUTING THE DISALLOWANCE UNDER RUL E 8D(2)(III) WHICH IS IN RESPECT % OF THE AVERAGE VALUE OF INVESTMENT T HE INCOME OF WHICH DOES NOT FORM PART OF TOTAL INCOME. WE HOLD AND DIR ECT ACCORDINGLY. GROUND NO. 1 OF ASSESSEES APPEAL IS TREATED AS PARTLY ALL OWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. 5. GROUND NO. 2 DISALLOWANCE UNDER SECTION 40(A)(IA) 5.1 IN THIS GROUND THE ASSESSEE ASSAILS THE ORDER OF THE LEARNED CIT(A) IN CONFIRMING THE DISALLOWANCE OF ` 9 18 509/- UNDER SECTION 40(A)(IA) OF THE ACT MADE BY THE AO FOR NON-DEDUCTION OF TAX BY THE ASSESSEE FOR TRANSACTION CHARGES PAYMENTS MADE TO STOCK EXCHANGE S I.E. BSE AND NSE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE IS NOW SETTLED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THE HON'BLE APEX COURT IN THE CASE OF CIT VS. KOTAK SECURITIES LTD. (2016) 383 ITR 1 (SC) WHEREIN IT WAS HELD THAT TRANSACTION CHARGES PAID TO BSE E TC. BY ITS MEMBERS ARE NOT TECHNICAL SERVICES RENDERED BUT THE NATURE O F SUCH PAYMENTS ARE FOR FACILITIES PROVIDED BY THE STOCK EXCHANGE AND THERE FORE NO TDS ON SUCH PAYMENTS WOULD BE DEDUCTIBLE UNDER SECTION 194C OR 194J OF THE ACT. 5.2 PER CONTRA THE LEARNED D.R. SUPPORTED THE IMPU GNED ORDER OF THE LEARNED CIT(A) ON THIS ISSUE. 5.3.1 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUDING THE JU DICIAL PRONOUNCEMENTS CITED. THE FACTS OF THE MATTER ON THIS ISSUE ARE TH AT IN THE PERIOD UNDER ITA NO. 1243/MUM/2014 FIRST GLOBAL STOCKBROKING P. LTD. 5 CONSIDERATION THE ASSESSEE PAID TRANSACTION CHARGE S AMOUNTING TO ` 9 18 509/- TO BSE AND NSE. THE AUTHORITIES BELOW FO LLOWING THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF KOT AK SECURITIES LTD. (ITA NO. 3111 OF 2009) HELD THAT THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE WHILE CREDITING THE TRANSACTION CHARGES TO THE ACCO UNT OF THE STOCK EXCHANGE AND FAILURE TO DO SO CALLED FOR THE SAID P AYMENT TO BE DISALLOWED UNDER SECTION 40(A)(IA) OF THE ACT. WE FIND THAT TH IS VERY ISSUE WAS UP FOR CONSIDERATION BEFORE THE HON'BLE APEX COURT IN THE CASE OF KOTAK SECURITIES LTD. (2016) 383 ITR 1 (SC) AND THE HON'BLE APEX COU RT HELD THAT TRANSACTION CHARGES PAID TO BOMBAY STOCK EXCHANGE B Y ITS MEMBERS ARE NOT FOR TECHNICAL SERVICES RENDERED BUT ARE PAYMENT S MADE FOR FACILITIES PROVIDED BY THE STOCK EXCHANGE AND THEREFORE NO TDS WAS DEDUCTIBLE ON SUCH PAYMENTS UNDER SECTION 194J/194C OF THE ACT. I N ITS ORDER AT PARAS 8 TO 10 THE HON'BLE APEX COURT HAS HELD AS UNDER: - 8. A READING OF THE VERY ELABORATE ORDER OF THE ASSESSIN G OFFICER CONTAINING A LENGTHY DISCOURSE ON THE SERVICES MADE AVAILABLE BY THE STOCK EXCHANGE WOULD GO TO SHOW THAT APART FROM FAC ILITIES OF A FACELESS SCREEN BASED TRANSACTION A CONSTANT UPGRA DATION OF THE SERVICES MADE AVAILABLE AND SURVEILLANCE OF THE ESS ENTIAL PARAMETERS CONNECTED WITH THE TRADE INCLUDING THOSE OF A PARTI CULAR/ SINGLE TRANSACTION THAT WOULD LEAD CREDENCE TO ITS AUTHENT ICITY IS PROVIDED FOR BY THE STOCK EXCHANGE. ALL SUCH SERVICES FULLY AUT OMATED ARE AVAILABLE TO ALL MEMBERS OF THE STOCK EXCHANGE IN R ESPECT OF EVERY TRANSACTION THAT IS ENTERED INTO. THERE IS NOTHING SPECIAL EXCLUSIVE OR CUSTOMISED SERVICE THAT IS RENDERED BY THE STOCK EX CHANGE. 'TECHNICAL SERVICES' LIKE 'MANAGERIAL AND CONSULTANCY SERVICE' WOULD DENOTE SEEKING OF SERVICES TO CATER TO THE SPECIAL NEEDS O F THE CONSUMER/USER AS MAY BE FELT NECESSARY AND THE MAKING OF THE SAME AVAILABLE BY THE SERVICE PROVIDER. IT IS THE ABOVE FEATURE THAT WOUL D DISTINGUISH/IDENTIFY A SERVICE PROVIDED FROM A FACILITY OFFERED. WHILE T HE FORMER IS SPECIAL AND EXCLUSIVE TO THE SEEKER OF THE SERVICE THE LAT TER EVEN IF TERMED AS A SERVICE IS AVAILABLE TO ALL AND WOULD THEREFORE STAND OUT IN DISTINCTION TO THE FORMER. THE SERVICE PROVIDED BY THE STOCK EXCHANGE FOR WHICH TRANSACTION CHARGES ARE PAID FAILS TO SAT ISFY THE AFORESAID TEST OF SPECIALIZED EXCLUSIVE AND INDIVIDUAL REQUI REMENT OF THE USER OR CONSUMER WHO MAY APPROACH THE SERVICE PROVIDER FOR SUCH ASSISTANCE/SERVICE. IT IS ONLY SERVICE OF THE ABOVE KIND THAT ACCORDING TO US SHOULD COME WITHIN THE AMBIT OF THE EXPRESSI ON 'TECHNICAL SERVICES'. APPEARING IN EXPLANATION 2 OF SECTION 9( 1)(VII) OF THE ACT. IN THE ABSENCE OF THE ABOVE DISTINGUISHING FEATURE SE RVICE THOUGH RENDERED WOULD BE MERE IN THE NATURE OF A FACILITY OFFERED OR AVAILABLE WHICH WOULD NOT BE COVERED BY THE AFORESAID PROVISI ON OF THE ACT. ITA NO. 1243/MUM/2014 FIRST GLOBAL STOCKBROKING P. LTD. 6 9. THERE IS YET ANOTHER ASPECT OF THE MATTER WHICH IN OUR CONSIDERED VIEW WOULD REQUIRE A SPECIFIC NOTICE. THE SERVICE MADE AVAILABLE BY THE BOMBAY STOCK EXCHANGE [BSE ONLINE TRADING (BOLT) SY STEM] FOR WHICH THE CHARGES IN QUESTION HAD BEEN PAID BY THE APPELL ANT - ASSESSEE ARE COMMON SERVICES THAT EVERY MEMBER OF THE STOCK EXCH ANGE IS NECESSARILY REQUIRED TO AVAIL OF TO CARRY OUT TRADI NG IN SECURITIES IN THE STOCK EXCHANGE. THE VIEW TAKEN BY THE HIGH COURT TH AT A MEMBER OF THE STOCK EXCHANGE HAS AN OPTION OF TRADING THROUGH AN ALTERNATIVE MODE IS NOT CORRECT. A MEMBER WHO WANTS TO CONDUCT HIS DAILY BUSINESS IN THE STOCK EXCHANGE HAS NO OPTION BUT TO AVAIL OF SUCH SERVICES. EACH AND EVERY TRANSACTION BY A MEMBER IN VOLVES THE USE OF THE SERVICES PROVIDED BY THE STOCK EXCHANGE FOR WHI CH A MEMBER IS COMPULSORILY REQUIRED TO PAY AN ADDITIONAL CHARGE ( BASED ON THE TRANSACTION VALUE) OVER AND ABOVE THE CHARGES FOR T HE MEMBERSHIP IN THE STOCK EXCHANGE. THE ABOVE FEATURES OF THE SERVI CES PROVIDED BY THE STOCK EXCHANGE WOULD MAKE THE SAME A KIND OF A FACI LITY PROVIDED BY THE STOCK EXCHANGE FOR TRANSACTING BUSINESS RATHER THAN A TECHNICAL SERVICE PROVIDED TO ONE OR A SECTION OF THE MEMBERS OF THE STOCK EXCHANGE TO DEAL WITH SPECIAL SITUATIONS FACED BY S UCH A MEMBER(S) OR THE SPECIAL NEEDS OF SUCH MEMBER(S) IN THE CONDUCT OF BUSINESS IN THE STOCK EXCHANGE. IN OTHER WORDS THERE IS NO EXCLUSI VITY TO THE SERVICES RENDERED BY THE STOCK EXCHANGE AND EACH AND EVERY M EMBER HAS TO NECESSARILY AVAIL OF SUCH SERVICES IN THE NORMAL CO URSE OF TRADING IN SECURITIES IN THE STOCK EXCHANGE. SUCH SERVICES TH EREFORE WOULD UNDOUBTEDLY BE APPROPRIATE TO BE TERMED AS FACILITI ES PROVIDED BY THE STOCK EXCHANGE ON PAYMENT AND DOES NOT AMOUNT TO 'T ECHNICAL SERVICES' PROVIDED BY THE STOCK EXCHANGE NOT BEING SERVICES SPECIFICALLY SOUGHT FOR BY THE USER OR THE CONSUMER . IT IS THE AFORESAID LATTER FEATURE OF A SERVICE RENDERED WHICH IS THE E SSENTIAL HALLMARK OF THE EXPRESSION TECHNICAL SERVICES AS APPEARING IN EXPLANATION 2 TO SECTION 9(1)(VII) OF THE ACT. 10. FOR THE AFORESAID REASONS WE HOLD THAT THE VIE W TAKEN BY THE BOMBAY HIGH COURT THAT THE TRANSACTION CHARGES PAID TO THE BOMBAY STOCK EXCHANGE BY ITS MEMBERS ARE FOR TECHNICAL SE RVICES RENDERED IS NOT AN APPROPRIATE VIEW. SUCH CHARGES REALLY ARE IN THE NATURE OF PAYMENTS MADE FOR FACILITIES PROVIDED BY THE STOCK EXCHANGE. NO TDS ON SUCH PAYMENTS WOULD THEREFORE BE DEDUCTIBLE UNDER SECTION 194J OF THE ACT. 5.3.2 RESPECTFULLY FOLLOWING THE DECISION OF THE HO N'BLE APEX COURT IN THE CASE OF KOTAK SECURITIES LTD. (2016) 383 ITR 1 (SC) WE HOLD THAT THE TRANSACTION CHARGES OF ` 9 18 509/- PAID BY THE ASSESSEE TO BSE AND NSE AS A MEMBER IS IN THE NATURE OF PAYMENTS MADE FOR F ACILITIES PROVIDED BY THE STOCK EXCHANGE AND THEREFORE NO TDS ON SUCH PAY MENT WOULD BE DEDUCTIBLE UNDER SECTION 194C/194J OF THE ACT. THE ORDERS OF THE AUTHORITIES BELOW MAKING DISALLOWANCE UNDER SECTION 40(A)(IA) FOR NON- ITA NO. 1243/MUM/2014 FIRST GLOBAL STOCKBROKING P. LTD. 7 DEDUCTION OF TAX ON SUCH PAYMENT OF TRANSACTION CHA RGES ARE ACCORDINGLY REVERSED. CONSEQUENTLY GROUND NO. 2 OF THE ASSESSE ES APPEAL IS ALLOWED. 6. GROUND NO. 3 DEEMED DIVIDEND UNDER SECTION 2(22)( 3) 6.1 THIS GROUND NO. 3 WAS NOT PRESSED BY THE LEARNE D COUNSEL FOR THE ASSESSEE AND THEREFORE THIS GROUND IS DISMISSED AS NOT PRESSED. 7. IN THE RESULT THE ASSESSEES APPEAL FOR A.Y. 2010- 11 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH OCTOBER 2016. SD/ - SD/ - (SANDEEP GOSAIN) (JASON P. BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED: 5 TH OCTOBER 2016 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -8 MUMBAI 4. THE CIT - 4 MUMBAI 5. THE DR F BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.