GEMOLOGICAL RESEARCH (THILAND) COMPANY LTD, MUMBAI v. DCIT (IT) CIR 2(3)(2), MUMBAI

ITA 2309/MUM/2017 | 2010-2011
Pronouncement Date: 03-05-2021 | Result: Partly Allowed

Appeal Details

RSA Number 230919914 RSA 2017
Assessee PAN AADCG7850L
Bench Mumbai
Appeal Number ITA 2309/MUM/2017
Duration Of Justice 4 year(s) 1 month(s) 2 day(s)
Appellant GEMOLOGICAL RESEARCH (THILAND) COMPANY LTD, MUMBAI
Respondent DCIT (IT) CIR 2(3)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 03-05-2021
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted Not Allotted
Tribunal Order Date 03-05-2021
Assessment Year 2010-2011
Appeal Filed On 31-03-2017
Judgment Text
!' #$ ! % IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI PRAMOD KUMAR VICE PRESIDENT & SHRI VIKAS AWASTHY JUDICIAL MEMBER . 2309/ / 2017 ($). . 2010-11 ) ITA NO.2309/MUM/2017 (A.Y.2010-11) . 1136/ / 2015 ($). . 2011-12 ) ITA NO.1136/MUM/2015 (A.Y.2011-12) . 851/ / 2016 ($). . 2012-13 ) ITA NO.851/MUM/2016 (A.Y.2012-13) . 2295/ / 2017 ($). . 2013-14 ) ITA NO.2295/MUM/2017 (A.Y.2013-14) . 7040/ / 2017 ($). . 2014-15 ) ITA NO.7040/MUM/2017 (A.Y.2014-15) . 6380/ / 2018 ($). . 2015-16 ) ITA NO.6380/MUM/2018 (A.Y.2015-16) . 7741/ / 2019 ($). . 2016-17 ) ITA NO.7741/MUM/2019 (A.Y.2016-17) GEMOLOGICAL RESEARCH (THAILAND) COMPANY LIMITED C/O.GIA INDIA LABORATORY PVT. LTD. 10 TH FLOOR TRADE CENTRE BANDRA KURLA COMPLEX BANDRA(E) MUMBAI 400051 PAN: AADCG 7850L ...... '+ / APPELLANT ) VS. THE DY. COMMISSIONER OF INCOME-TAX (INTERNATIONAL TAXATION) RANGE 2(3)(2) SCINDIA HOUSE BALLARD ESTATE N.M. ROAD MUMBAI 400 038 ..... $ / RESPONDENT 2 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) ASSESSEE BY : SHRI J.D. MISTRY SR. ADV OCATE WITH SHRI NIRAJ SHETH & SHRI K.K. VED REVENUE BY : SHRI SANJAY SINGH )-$ '/ DATE OF HEARING : 03/02/2021 ./ -$ '/ DATE OF PRONOUNCEMENT : 03 /05/2021 %/ ORDER PER VIKAS AWASTHY JM: THESE SEVEN APPEALS BY THE ASSESSEE FOR ASSESSMENT YEARS 2010-11 TO 2016-17 INVOLVE IDENTICAL ISSUES GERMINATING FROM SAME SET OF FACTS THEREFORE THESE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION AND ARE DECI DED BY THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE FACTS ARE NARRATED FROM THE APPEAL OF ASSESSEE FOR ASSESSMENT YEAR 2010-11. ITA NO.2309/MUM/2017 - ASSESSMENT YEAR 2010-11 2. THE ASSESSEE IN APPEAL HAS RAISED FOLLOWING GROU NDS: 1:0 RE.: VALIDITY OF RE-ASSESSMENT PROCEEDINGS: 1:1 THE ASSESSING OFFICER / DISPUTE RESOLUTION PANE L HAS ERRED IN RE-OPENING THE ASSESSEES ASSESSMENT U/S. 148 OF THE INCOME-TAX AC T 1961. 1:2 THE APPELLANT SUBMITS THAT CONSIDERING THE FAC TS AND CIRCUMSTANCES OF THE CASE AND THE LAW PREVAILING ON THE SUBJECT THE RE-OPENIN G U/S.148 OF THE INCOME-TAX ACT 1961 WAS IN EXCESS OF JURISDICTION AND IS ALSO OTHE RWISE BAD IN LAW. 1:3 THE APPELLANT SUBMITS THAT THE PROCEEDINGS U/S. 148 OF THE INCOME-TAX ACT 1961 WERE NOT IN ACCORDANCE WITH LAW AND CONSEQUENTLY OU GHT TO BE STRUCK DOWN. WITHOUT PREJUDICE TO THE FOREGOING: 2:0 RE.: HOLDING THAT THE APPELLANT HAS A PERMANENT ES TABLISHMENT PE IN INDIA: 2:1 THE ASSESSING OFFICER/THE DISPUTE RESOLUTION PA NEL HAS ERRED IN HOLDING THAT THE APPELLANT HAS A PERMANENT ESTABLISHMENT (PE) IN INDIA. 2:2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACT S AND CIRCUMSTANCES OF ITS CASE AND THE LAW PREVAILING ON THE SUBJECT IT HAS NO PE IN INDIA AND THE STAND TAKEN BY THE ASSESSING OFFICER/THE DISPUTE RESOLUTION PANEL IN T HIS REGARD IS ERRONEOUS MISCONCEIVED AND NOT IN ACCORDANCE WITH LAW. 2:3 THE APPELLANT SUBMITS THAT THE ASSESSING OFFICE R HAS ERRED IN ARRIVING AT VARIOUS UNWARRANTED AND ERRONEOUS CONCLUSIONS UNSUPPORTED B Y ANY RELEVANT MATERIAL TO HOLD THAT THE APPELLANT HAD A PE IN INDIA. FURTHER HE ALSO FAILED TO CONSIDER THE CONTRARY MATERIAL AND EVIDENCE ADDUCED BY THE APPEL LANT. 3 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) 2:4 THE APPELLANT SUBMITS THAT THE ASSESSING OFFICE RS STAND THAT THE APPELLANT HAS A PE IN INDIA BE STRUCK DOWN AND HE BE DIRECTED NOT T O TAX THE APPELLANTS INCOME. WITHOUT PREJUDICE TO THE FOREGOING 3:0 RE.: ATTRIBUTION: 3:1 THE ASSESSING OFFICER/THE DISPUTE RESOLUTION PA NEL HAS ERRED IN HOLDING THAT 50% OF RECEIPTS ARE ATTRIBUTABLE TO THE ALLEGED PE OF T HE APPELLANT IN INDIA. 3:2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACT S AND CIRCUMSTANCES OF ITS CASE AND THE LAW PREVAILING ON THE SUBJECT NO PART WHATS OEVER OF ITS RECEIPTS ARE ATTRIBUTABLE TO INDIA AND THE STAND TAKEN BY THE AS SESSING OFFICER/THE DISPUTE RESOLUTION PANEL IN THIS REGARD IS INCORRECT ILLEG AL ARBITRARY NOT IN ACCORDANCE WITH LAW AND HENCE OUGHT TO BE STRUCK DOWN. 3:3 THE APPELLANT SUBMITS THAT THE ARBITRARY ACTION OF THE ASSESSING OFFICER/THE DISPUTE RESOLUTION PANEL BE STRUCK DOWN AND THE ASS ESSING OFFICER BE DIRECTED TO ACCEPT THE TOTAL INCOME AS RETURNED. WITHOUT PREJUDICE TO THE FOREGOING: 4:0 RE.: ESTIMATION OF GROSS PROFIT: 4:1 THE ASSESSING OFFICER/THE DISPUTE RESOLUTION PA NEL HAS ERRED IN HOLDING THAT THE 20.31% OF THE RECEIPTS ATTRIBUTABLE TO THE ALLEGED INDIAN OPERATIONS OUGHT TO BE CONSIDERED AS PROFITS OF THE PE TAXABLE IN INDIA. 4:2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACT S AND CIRCUMSTANCES OF ITS CASE AND THE LAW PREVAILING ON THE SUBJECT EVEN IF IT I S HELD THAT THE APPELLANT HAS A PE IN INDIA NO FURTHER INCOME CAN BE TAXED IN INDIA AS TH E ALLEGED PE HAS BEEN REMUNERATED AT AN ARMS LENGTH AND HENCE THE STAND TAKEN BY THE ASSESSING OFFICER/THE DISPUTE RESOLUTION PANEL IN RESPECT THEREOF IS INCORRECT E RRONEOUS MISCONCEIVED AND ILLEGAL AND HENCE OUGHT TO BE STRUCK DOWN. 4:3 THE APPELLANT SUBMITS THAT THE ASSESSING OFFICE R BE DIRECTED TO ACCEPT THE TOTAL INCOME AS RETURNED. 5:0 RE.: CREDIT FOR TAX DEDUCTED AT SOURCE AMOUNTIN G TO RS.3 10 277/- NOT GRANTED: 5:1 THE ASSESSING OFFICER HAS ERRED IN NOT GRANTING THE APPELLANT CREDIT FOR TAX DEDUCTED AT SOURCE OF RS.3 10 277/-. 5:2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACT S AND CIRCUMSTANCES OF THE CASE AND THE LAW PREVAILING ON THE SUBJECT IT IS ENTITLE D TO FULL CREDIT FOR RS. 3 10 277/BEING TAX DEDUCTED AT SOURCE FROM ITS INCOME FOR THE YEAR . 5:3 THE APPELLANT SUBMITS THAT THE ASSESSING OFFICE R BE DIRECTED TO GRANT THE CREDIT OF THE TAX DEDUCTED AT SOURCE AND RE-COMPUTE ITS TAX L IABILITY ACCORDINGLY. 6:0 RE.: LEVY OF INTEREST U/S 234A OF THE INCOME-TA X ACT 1961: 6:1 THE ASSESSING OFFICER HAS ERRED IN LEVYING INTE REST U/S. 234A OF THE INCOME-TAX ACT 1961 ON THE APPELLANT. 6:2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACT S AND CIRCUMSTANCES OF ITS CASE AND THE LAW PREVAILING ON THE SUBJECT NO INTEREST U /S. 234A IS LEVIABLE AND THE STAND TAKEN BY THE ASSESSING OFFICER IN THIS REGARD IS MI SCONCEIVED INCORRECT ERRONEOUS AND ILLEGAL. 6:3 THE APPELLANT SUBMITS THAT THE ASSESSING OFFICE R BE DIRECTED TO DELETE THE INTEREST U/S. 234A SO LEVIED ON IT AND TO RE-COMPUTE ITS TAX LIABILITY ACCORDINGLY. 7. RE.: LEVY OF INTEREST U/S 234B OF THE INCOME-TAX ACT 1961: 4 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) 7:1 THE ASSESSING OFFICER HAS ERRED IN LEVYING INTE REST U/S. 234B OF THE INCOME-TAX ACT 1961 ON THE APPELLANT. 7:2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACT S AND CIRCUMSTANCES OF ITS CASE AND THE LAW PREVAILING ON THE SUBJECT NO INTEREST U /S 234B IS LEVIABLE AND THE STAND TAKEN BY THE ASSESSING OFFICER IN THIS REGARD IS MI SCONCEIVED INCORRECT ERRONEOUS AND ILLEGAL. 7:3 THE APPELLANT SUBMITS THAT THE ASSESSING OFFICE R BE DIRECTED TO DELETE THE INTEREST U/S. 234B SO LEVIED ON IT AND TO RE-COMPUTE ITS TAX LIABILITY ACCORDINGLY. 8:0 RE.: LEVY OF INTEREST U/S 234C OF THE INCOME-TA X ACT 1961: 8:1 THE ASSESSING OFFICER HAS ERRED IN LEVYING INTE REST U/S. 234C OF THE INCOME-TAX ACT 1961 ON THE APPELLANT. 8:2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACT S AND CIRCUMSTANCES OF ITS CASE AND THE LAW PREVAILING ON THE SUBJECT NO INTEREST U /S. 234C IS LEVIABLE AND THE STAND TAKEN BY THE ASSESSING OFFICER IN THIS REGARD IS MI SCONCEIVED INCORRECT ERRONEOUS AND ILLEGAL. 8:3 THE APPELLANT SUBMITS THAT THE ASSESSING OFFICE R BE DIRECTED TO DELETE THE INTEREST U/S. 234C SO LEVIED ON IT AND TO RE-COMPUTE ITS TAX LIABILITY ACCORDINGLY. 9:0 RE : GENERAL; THE ASSESSING OFFICER / DISPUTE RESOLUTION PANEL HA VE ERRED IN ASSESSING THE TOTAL INCOME OF THE APPELLANT AT RS.4 55 113/- AGAINST TH E RETURNED INCOME OF RS. NIL THEREBY DETERMINING A DEMAND OF RS.1 67 298/- AGAIN ST THE REFUND OF RS. 2 85 576/- WHILE RETURNING THE INCOME FOR THE YEAR. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO T HE OTHER. 2. SHRI J.D. MISTRY SR. ADVOCATE APPEARING ON BEHA LF OF THE ASSESSEE SUBMITTED THAT IN ALL THESE BENCH OF APPEALS THE ASSESSEE HAS RAISED IDENTICAL GROUNDS EXCEPT FOR THE APPEAL FOR ASSESSMENT YEAR 2010-11WHEREIN T HE ASSESSEE HAS INTER-ALIA CHALLENGED VALIDITY OF REASSESSMENT AND OTHER GROUN DS CONSEQUENTIAL TO THE ADDITION MADE. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THA T THE PRIMARY ISSUE ASSAILED IN ALL THE APPEALS BY THE ASSESSEE IS THAT THE ASSESSING O FFICER AND THE DISPUTE RESOLUTION PANEL HAVE ERRED IN HOLDING THAT THE ASSESSE IS HAV ING PERMANENT ESTABLISHMENT (PE) IN INDIA. IF THIS ISSUE IS DECIDED IN FAVOUR OF TH E ASSESSEE THE OTHER ALTERNATE GROUNDS VIZ. ATTRIBUTION OF PROFIT AND ESTIMATION OF GROSS PROFIT RAISED WITHOUT PREJUDICE TO THE PRIMARY GROUND WOULD BECOME ACADEMIC. SH. MISTRY SUBMITTED THAT THE ASSESSEE/APPELLANT I S A GROUP COMPANY OF GEMMOLOGICAL INSTITUTE OF AMERICA INC. USA (IN SHO RT GIA-US). IN THE CASE OF GIA- US THE ASSESSING OFFICER HELD THAT GIA INDIA LABOR ATORY PRIVATE LTD. (A SUBSIDIARY OF 5 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) GIA-US) IS PE OF THE SAID COMPANY IN INDIA. THE T RIBUNAL IN THE CASE OF GEMMOLOGICAL INSTITUTE OF AMERICA INC. VS. ADDL.CIT IN ITA NO.1 138/MUM/2015 FOR ASSESSMENT YEAR 2010-11 DECIDED ON 21/06/2019AFTER EXAMINING THE FA CTS OF THE CASE AND ARTICLE -5 OF INDIA USDTAA HELD THAT GIA-US IS NOT HAVING ANY PE OR AGENCY PE IN INDIA. THE LD. COUNSEL FOR THE ASSESSEE ASSERTED THAT THE FACTS AN D THE NATURE OF TRANSACTION IN THE PRESENT CASE ARE IDENTICAL. THE ASSESSING OFFICER W HILE PASSING THE DRAFT ASSESSMENT ORDER HAS DITTO THE ASSESSMENT ORDER IN THE CASE OF GIA-US FOR AY 2011-12. THE ASSESSING OFFICER HAS VERBATIM ADOPTED THE FINDINGS OF ASSESSMENT ORDER FOR AY 2011-12 IN THE CASE OF GIA-US. THE LD. COUNSEL FURT HER POINTED THAT THE DISPUTE RESOLUTION PANEL (DRP) HAS ALSO OBSERVED THAT THE F ACTS IN THE CASE OF ASSESSEE AND THAT OF GIA-USARE SIMILAR. NOW THAT IT IS AN ESTAB LISHED POSITION THAT THE FACTS IN THE CASE OF ASSESSEE AND GIA-US ARE SIMILAR THE CASE O F ASSESSEE IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN THE CASE OF GIA-US IN ITA 1138/MUM/2015 (SUPRA). THEREFORE THE ASSESSMENT ORDER IS LIABLE TO SET AS IDE ON THE SOLE GROUND THAT THE ASSESSEE IS NOT HAVING ANY PE IN INDIA. 2.1. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THA T IF GROUND NO.2 OF APPEAL I.E. WHETHER THE ASSESSEE IS HAVING PE IN INDIA IS DECI DED IN FAVOUR OF THE ASSESSEE THERE WOULD BE NO NEED TO DECIDE GROUND NO.1 CHALLENGING VALIDITY OF REASSESSMENT PROCEEDINGS. EVEN THE OTHER GROUNDS IN APPEAL ASSAI LING ATTRIBUTION AND ESTIMATION OF GROSS PROFIT RAISED WITHOUT PREJUDICE TO PRIMARY G ROUND WOULD BECOME ACADEMIC. 3. SHRI SANJAY SINGH REPRESENTING THE DEPARTMENT VE HEMENTLY DEFENDED THE IMPUGNED ORDER. HOWEVER THE LD.DEPARTMENTAL REPRES ENTATIVE FAIRLY ADMITTED THAT THE MAIN GROUND IN THE PRESENT SET OF APPEALS VIZ. APPELLANT HAVING PE IN INDIA HAS BEEN ADJUDICATED BY THE TRIBUNAL IN THE CASE OF GEM MOLOGICAL INSTITUTE OF AMERICA INC. VS. ADDL. CIT (SUPRA) A GROUP CONCERN OF THE ASSESSEE. 4. WE HAVE HEARD THE SUBMISSIONS OF RIVAL SIDES AND HAVE EXAMINED THE ORDERS OF AUTHORITIES BELOW. THE APPELLANT/ASSESSEE IS INCORP ORATED IN THAILAND AND IS 6 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) PROVIDING GEM GRADING SERVICES. THE ASSESSEE/APPELL ANT IS A GROUP CONCERN OF GIA-US. DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR U NDER APPEAL THE ASSESSEE HAS RENDERED DIAMOND GRADING SERVICES TO ITS ASSOCIATED ENTERPRISE (AE) IN INDIA IE. GIA INDIA LABORATORIES PVT. LTD. DURING THE COURSE OF A SSESSMENT PROCEEDINGS THE ASSESSING OFFICER FORMED AN OPINION THAT THE ASSESS EES AE I.E. GIA INDIA LAB. PVT. LTD. HAS ALL ESSENTIAL COMPONENTS OF HAVING PE OF THE AS SESSEE. WE OBSERVE THAT IN HOLDING INDIAN AE AS PE OF THE ASSESSEE THE ASSESS ING OFFICER HAS PLACED EXTENSIVE RELIANCE ON THE ASSESSMENT ORDER FOR AY 2011-12 IN THE CASE OF GIA-US. THE ASSESSING OFFICER IN DRAFT ASSESSMENT ORDER HAS VERBATIM QUOT ED AFORE SAID ASSESSMENT ORDER. IN FACT THE ASSESSING OFFICER HAS NOT GIVEN INDEPE NDENT FINDINGS AND HAS MERELY ADOPTED THE FINDINGS GIVEN IN THE ASSESSMENT ORDER FOR AY 2011-12 IN THE CASE OF GIA- US STATING SIMILARITY OF FACTS. 5. WE FIND THAT THE DRP IN PARA 3.3 OF THE DIRECTIO NS HAS REITERATED THE FACT THAT THE ASSESSEES CASE AND THAT OF GIA-US WERE FOUND T O BE VERY SIMILAR. THE DRP FOLLOWED THE DIRECTIONS OF DRP IN ASSESSEES CASE F OR AY 2011-12 AND 2012-13. WE OBSERVE THAT IN AY 2011-12 AND 2012-13 THE ASSESSI NG OFFICER HAS AGAIN RELIED ON THE ASSESSMENT ORDER FOR AY 2011-12 IN THE CASE OF GIA- US. THE DRP AFTER CONSIDERING THE PROVISIONS OF ARTICLE 5 OF INDIA THAILAND DTA A UPHELD THE FINDINGS OF ASSESSING OFFICER IN DRAFT ASSESSMENT ORDER. IN THE IMPUGNED ASSESSMENT YEAR THE DRP ON THE BASIS OF FINDINGS BY DRP IN AY 2011-12 AND 2012-13 HAS REJECTED OBJECTIONS OF THE ASSESSEE AND CONFIRMED THE ADDITION PROPOSED IN DRA FT ASSESSMENT ORDER. IN OTHER WORDS IN THE CASE OF PRESENT ASSESSEE NO INDEPENDE NT OBSERVATIONS AND FINDINGS HAVE BEEN RECORDED EITHER BY THE ASSESSING OFFICER OR BY THE DRP. THE BASIS FOR HOLDING INDIAN AE AS PE OF THE ASSESSEE IS THE ASSE SSMENT ORDER FOR AY 2011-12 IN THE CASE OF GIA-US. 6. THE CO-ORDINATE BENCH OF TRIBUNAL IN THE CASE OF GEMMOLOGICAL INSTITUTE OF AMERICA INC. VS. ADDITIONAL CIT(SUPRA) AFTER THREA DBARE EXAMINING BUSINESS MODEL OF 7 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) THE ASSESSEE AND THE PROVISION OF ARTICLE 5 OF IN DIA US DTAA HELD THAT GIA INDIA LAB.PVT. LTD. IS NOT PE OF GIA-US IN INDIA. FOR THE SAKE OF COMPLETENESS RELEVANT EXTRACT OF THE FINDINGS OF TRIBUNAL ARE REPRODUCED HEREIN UNDER:- 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS PERUSED THE RELEVANT MATERIAL INCLUDING THE ORDERS OF THE LOWER AUTHORI TIES AS WELL AS THE CASE LAWS REFERRED AT THE TIME OF HEARING. NOTABLY THE CONTR OVERSY BEFORE US PRIMARILY REVOLVES AROUND AS TO WHETHER OR NOT THE SUBSIDIARY OF THE A SSESSEE COMPANY I.E. GIA INDIA LAB CAN BE CONSTRUED AS ITS PE IN INDIA. THE INCOME -TAX AUTHORITIES HAVE INVOKED SECTION 9 OF THE ACT AND/OR ARTICLE 5 OF THE INDIA- US TREATY IN ORDER TO SAY THAT THE ASSESSEE COMPANY HAS A PE IN INDIA. ON THE CONTRARY AS PER THE ASSESSEE THE IMPUGNED RECEIPTS ARE IN THE NATURE OF BUSINESS PRO FITS AND IN THE ABSENCE OF ANY PE IN INDIA THE SAME ARE NOT TAXABLE IN INDIA. FACTUA LLY SPEAKING IT IS EVIDENT THAT THE ON PERUSAL OF THE AGREEMENTS THE TRANSACTION OF GR ADING SERVICES BETWEEN ASSESSEE COMPANY AND GIA INDIA LAB CANNOT BE CONSIDERED TO B E IN THE NATURE OF A JOINT VENTURE SINCE GIA INDIA LAB HAS ITS OWN INDEPENDEN T EXPERTISE BUT ONLY DUE TO ITS TECHNOLOGY/CAPACITY CONSTRAINTS IT FORWARDS THE ST ONES TO THE ASSESSEE COMPANY FOR GRADING PURPOSES; IT IS NOT AN ARRANGEMENT BETWEEN TWO PARTIES WHERE EACH PARTY CONTRIBUTES ITS SHARE IN ORDER TO UNDERTAKE AN ECON OMIC ACTIVITY WHICH IS SUBJECTED TO JOINT CONTROL; IN FACT THE ARRANGEMENT IS AKIN TO AN ASSIGNMENT OR SUB-CONTRACTING OF GRADING SERVICES TO THE ASSESSEE COMPANY WHEREVER GIA INDIA LAB DOES NOT HAVE THE REQUISITE EXPERTISE OR TECHNOLOGY OR CAPACITY FOR C ARRYING OUT THE GRADING SERVICES; FURTHER THE AFORESAID ARRANGEMENT HAS ALSO BEEN AC CEPTED AS A MERE RENDERING OF GRADING SERVICES BY THE TRANSFER PRICING OFFICER BO TH IN THE CASE OF GIA INDIA LAB AND THE ASSESSEE COMPANY. IN THIS BACKGROUND WE MAY NO W PROCEED TO DECIDE AS TO WHETHER THE INDIAN SUBSIDIARY GIA INDIA LAB CAN BE CONSTRUED AS A PE UNDER ANY OF THE ASPECTS CONTAINED IN ARTICLE 5 OF INDIA-USA DTA A. 10. FIRSTLY WE MAY EXAMINE WHETHER GIA INDIA LTD. CAN BE CONSTITUTED AS A FIXED PLACE PE OF THE ASSESSEE IN TERMS OF ARTICLE 5(1) O F THE INDIA- USA DTAA. AS PER ARTICLE 5(1) OF THE INDO-USA DTAA A FIXED PLACE PE ARISES WHEN THE FOREIGN ENTITY HAS A FIXED PLACE IN INDIA THROUGH WHICH ITS BUSINESS IS WHOLLY OR PARTLY CARRIED ON. IN THIS CONTEXT THE LEARNED COUNSEL POINTED OUT THAT A SIMILAR SITU ATION HAS BEEN CONSIDERED BY THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF EFUNDS I T SOLUTIONS (SUPRA) WHICH HAS BEEN UPHELD BY THE HON'BLE SUPREME COURT. IN THAT CASE IT HAS BEEN HELD THAT A SUBSIDIARY CANNOT BE REGARDED AS A 'FIXED PLACE PE' OF THE PAR ENT COMPANY ON THE GROUND OF A CLOSE ASSOCIATION BETWEEN THE INDIAN SUBSIDIARY AND THE FOREIGN TAXPAYER. IN THAT CASE IT WAS NOTED THAT BECAUSE VARIOUS SERVICES WE RE BEING PROVIDED BY E-FUND INDIA (INDIAN SUBSIDIARY) TO THE TAXPAYER OR THAT THE FOR EIGN TAX PAYER WAS DEPENDENT UPON INDIAN SUBSIDIARY (EFUND INDIA) FOR ITS EARNINGS OR ASSIGNMENT OR SUB-CONTRACT OF CONTRACTS TO E-FUND INDIA OR E-FUND INDIA BEING REI MBURSED ON A CERTAIN COST PLUS BASIS OR SAVING / REDUCTION IN COST BY TRANSFERRING BUSINESS OR BACK OFFICE OPERATIONS TO THE INDIAN SUBSIDIARY OR THE MANNER AND MODE OF THE PAYMENT OF ROYALTY TRANSACTIONS OR E-FUND INDIA PROVIDING SUPPORT FOR CARRYING ON CORE ACTIVITIES BEING 8 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) PERFORMED BY THE TAXPAYER OR ASSOCIATED TRANSACTION S CANNOT BE THE BASIS TO CONSTRUE THE INDIAN SUBSIDIARY AS PE OF THE FOREIGN TAX PAYER. FURTHER BEFORE THE HON'BLE DELHI HIGH COURT THE DEPARTMENT HAD CONTEN DED THAT THE FOREIGN COMPANY HAD A JOINT VENTURE OR PARTNERSHIP WITH INDIAN SUBS IDIARY AS THE BUSINESSES OF THE ASSESSEE COMPANY AND THE INDIAN SUBSIDIARY WERE INT ER-LINKED AND CLOSELY CONNECTED (WHICH IS ALSO CONTENDED IN THE CASE OF THE ASSESSE E BEFORE US) AND THEREFORE THE INDIAN SUBSIDIARY WAS REGARDED AS PE OF FOREIGN COM PANY IN INDIA. THE AFORESAID ARGUMENT OF THE REVENUE WAS REPELLED SINCE THE COND ITIONS UNDER ARTICLE 5 OF THE DTAA WERE NOT MET AND IT HAS BEEN HELD THAT PE CANN OT BE ESTABLISHED MERELY BECAUSE OF TRANSACTIONS BETWEEN ASSOCIATED ENTERPRI SES OR THE PRINCIPAL SUB- CONTRACTING OR ASSIGNING THE CONTRACT TO THE SUBSID IARY. 11. FACTUALLY IN THE CASE OF THE ASSESSEE COMPANY THE RE IS NO JOINT VENTURE ARRANGEMENT BETWEEN THE ASSESSEE COMPANY AND GIA IN DIA LAB VIS--VIS GEM GRADING SERVICES RENDERED BY THE ASSESSEE COMPANY T O GIA INDIA LAB SINCE IT IS GIA INDIA LAB WHO ENTERS INTO AGREEMENT WITH THE CLIENT AND BEARS ALL THE RISKS INCLUDING CREDIT RISKS CLIENT FACING RISKS ETC. A LSO IN TERMS OF THE AGREEMENT GIA INDIA LAB BEARS THE RISK OF LOSS OR DAMAGE TO ARTIC LES WHILE IN TRANSIT TO AND FROM THE ASSESSEE COMPANY AND ALSO DURING THE TIME WHEN THE ARTICLES ARE AT OR IN THE ASSESSEE COMPANY'S FACILITIES. THEREFORE THE ECONO MIC RISKS OF THE GEM GRADING SERVICES RENDERED BY THE ASSESSEE COMPANY VIS--VIS STONES/DIAMONDS OF CUSTOMERS OF GIA INDIA LAB SHIPPED TO IT ARE BORNE BY GIA IND IA LAB AND HENCE THERE IS NO JOINT VENTURE ARRANGEMENT WHATSOEVER BETWEEN THE AS SESSEE COMPANY AND GIA INDIA LAB. IN TERMS OF ARTICLE 5(6) OF THE INDIA US A DTAA IT IS PROVIDED THAT THE MERE FACT THAT A COMPANY HAS CONTROLLING INTEREST I N THE OTHER COMPANY DOES NOT BY ITSELF CONSTRUE THE OTHER COMPANY TO BE ITS PE. ACCORDINGLY THE ASSESSEE COMPANY IS NOT HAVING A 'FIXED PLACE' PE IN INDIA. 12. IN TERMS OF ARTICLE 5 (1) OF THE INDIA - USA DT AA A SERVICE PE ARISES ON THE FURNISHING OF SERVICES IN INDIA BY THE ASSESSEE COM PANY THROUGH EMPLOYEES OR OTHER PERSONNEL BUT ONLY IF: ACTIVITIES OF THAT NATURE C ONTINUE IN INDIA FOR A PERIOD OR PERIODS AGGREGATING TO MORE THAN 90 DAYS WITHIN ANY TWELVE-MONTH PERIOD; OR THE SERVICES ARE PERFORMED WITHIN INDIA FOR A RELATED E NTERPRISE. HENCE A SERVICE PE IS TRIGGERED IF THE SERVICES (OTHER THAN INCLUDED SERV ICES AS DEFINED IN ARTICLE 12 'ROYALTIES AND FEES FOR INCLUDED SERVICES') ARE REN DERED BY THE ASSESSEE COMPANY THROUGH EMPLOYEES OR OTHER PERSONNEL AND ACTIVITIES OF THAT NATURE CONTINUE IN INDIA FOR A PERIOD OR PERIODS AGGREGATING TO MORE THAN 90 DAYS WITHIN ANY TWELVE-MONTH PERIOD; OR THE SERVICES ARE PERFORMED WITHIN INDIA FOR A RELATED ENTERPRISE. THE ASSESSEE COMPANY RENDERS 'GRADING SERVICES' AND 'MA NAGEMENT SERVICES TO GIA INDIA LAB'. IN FACT 2 GRADERS WHO WERE EARLIER EMPLOYED WITH THE ASSESSEE COMPANY ARE NOW EMPLOYED WITH GIA INDIA LAB AND ARE ON THE PAYR OLLS OF GIA INDIA LAB AND ARE WORKING UNDER CONTROL AND SUPERVISIONS OF GIA INDIA LAB AND THEREFORE NO SERVICE PE IS CREATED IN INDIA IN TERMS OF INDIA- US DTAA. THE SUPREME COURT HAS AFFIRMED THE DECISION OF THE DELHI HIGH COURT IN EFUNDS (SUPRA) WHEREIN IT HAS BEEN HELD THAT TWO EMPLOYEES DEPUTED TO E-FUND INDIA FUND INDIA DID NO T CREATE A SERVICE PE AS THE ENTIRE SALARY COST WAS BORNE BY E-FUND INDIA AND TH EY WERE WORKING UNDER CONTROL 9 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) AND SUPERVISION OF E-FUND INDIA. IN THE FACTS OF TH E INSTANT CASE SINCE THE SAID SERVICES ARE RENDERED OUTSIDE INDIA AND NONE OF THE EMPLOYEE S/ PERSONNEL OF THE ASSESSEE COMPANY HAS VISITED INDIA AND THEREFORE SERVICE PE IS NOT TRIGGERED IN THE CASE OF THE ASSESSEE COMPANY. 13. IN TERMS OF ARTICLE 5(4) OF THE INDIA US/DTAA AN AGENCY PE IS CREATED WHERE A PERSON-OTHER THAN AN AGENT OF AN INDEPENDENT STATUS TO WHOM PARAGRAPH 5 APPLIES - IS ACTING IN INDIA ON BEHALF OF AN ENTERPRISE OF TH E USA THAT ENTERPRISE SHALL BE DEEMED TO HAVE A PERMANENT ESTABLISHMENT IN INDIA IF: (A) HE HAS AND HABITUALLY EXERCISES IN INDIA AN AUT HORITY TO CONCLUDE ON BEHALF OF THE ENTERPRISE UNLESS HIS ACTIVITIES ARE LIMITE D TO THOSE MENTIONED IN PARAGRAPH 3 WHICH IF EXERCISED THROUGH A FIXED PLA CE OF BUSINESS WOULD NOT MAKE THAT FIXED PLACE OF BUSINESS A PERMANENT ESTAB LISHMENT UNDER THE PROVISIONS OF THAT PARAGRAPH; (B) HE HAS NO SUCH AUTHORITY BUT HABITUALLY MAINTAI NS IN INDIA A STOCK OF GOODS OR MERCHANDISE FROM WHICH HE REGULARLY DELIVERS GOO DS OR MERCHANDISE ON BEHALF OF THE ENTERPRISE AND SOME ADDITIONAL ACTIV ITIES CONDUCTED IN THE STATE ON BEHALF OF THE ENTERPRISE HAVE CONTRIBUTED TO THE SALE OF THE GOODS OR MERCHANDISE ; OR (C) HE HABITUALLY SECURES ORDERS IN INDIA WHOLLY OR ALMOST WHOLLY FOR THE ENTERPRISE. 14. THE DEFINITION EXCLUDES FROM THE AMBIT OF A PE ANY BUSINESS ACTIVITY CARRIED OUT THROUGH A BROKER GENERAL COMMISSION AGENT OR ANY O THER AGENT HAVING AN INDEPENDENT STATUS IF SUCH BROKER GENERAL COMMISS ION AGENT OR ANY OTHER AGENT HAVING AN INDEPENDENT STATUS ACTS IN THE ORDINARY C OURSE OF ITS BUSINESS. THE OECD COMMENTARY DEALS WITH THE CONCEPT OF 'INDEPENDENT A GENT' IN PARAGRAPHS 36 TO 39. IN TERMS OF PARAGRAPH 37 OF THE OECD COMMENTARY A PERSON WILL BE REGARDED AS AN INDEPENDENT AGENT (I.E. IT WILL NOT CONSTITUTE A PE OF THE ENTERPRISE ON WHOSE BEHALF IT ACTS) ONLY IF: -HE IS INDEPENDENT OF THE ENTERPRISE BOTH LEGALLY A ND ECONOMICALLY AND - HE ACTS IN THE ORDINARY COURSE OF HIS BUSINESS WH EN ACTING ON BEHALF OF THE ENTERPRISE. IN OTHER WORDS ARTICLE 5(5) OF THE INDIA- USA DTAA STIPULATES THE FOLLOWING CONDITIONS WHICH ARE REQUIRED TO BE SATISFIED IN OR DER THAT AN AGENT MAY BE SAID TO BE AN INDEPENDENT AGENT I.E. - THAT HE SHOULD BE AN AGENT OF INDEPENDENT STATUS; THAT HE SHOULD BE ACTING IN THE ORDINARY COURSE OF HIS BUSINESS; AND THAT H IS ACTIVITIES SHOULD NOT BE DEVOTED WHOLLY OR ALMOST WHOLLY ON BEHALF OF THE FO REIGN ENTERPRISE FOR WHOM HE IS ACTING AS AGENT. 15. GIA INDIA LAB IS AN INDEPENDENT/SEPARATE LEGAL ENTI TY IN INDIA WHICH IS ENGAGED IN RENDERING OF GRADING SERVICES. FURTHER CONSIDER ING THE FUNCTIONS AND THE RISKS ASSUMED BY GIA INDIA LAB VIS--VIS ITS BUSINESS ACT IVITIES IN INDIA (AS HAS BEEN RECORDED IN THE TRANSFER PRICING STUDY REPORT - WHI CH FUNCTIONAL AND RISK ANALYSIS HAS 10 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) BEEN ACCEPTED BY THE TRANSFER PRICING OFFICER BOTH IN THE CASE OF GIA INDIA LAB AND IN THE CASE OF THE ASSESSEE COMPANY) GIA INDIA LAB IS AN INDEPENDENT ENTITY WHICH IS RENDERING GRADING SERVICES TO ITS CLIENTS IN IND IA. GIA INDIA LAB ALSO BEARS SERVICE RISK AND ALL CLIENT FACING RISKS VIS--VIS THE STON ES SENT TO THE ASSESSEE COMPANY FOR GRADING PURPOSES (AS HAS BEEN RECORDED IN THE TRANS FER PRICING STUDY REPORT). HENCE GIA INDIA LAB IS NOT ACTING IN INDIA ON BEHA LF OF THE ASSESSEE COMPANY. FURTHER GIA INDIA LAB IS NOT HAVING ANY AUTHORITY TO CONCLUDE CONTRACTS AND HAS NEITHER CONCLUDED ANY CONTRACTS ON BEHALF OF THE AS SESSEE COMPANY NOR HAS IT SECURED ANY ORDERS FOR THE ASSESSEE COMPANY IN INDI A. THUS GIA INDIA LAB CANNOT BE REGARDED AS AGENCY PE OF THE ASSESSEE COMPANY IN INDIA. [EMPHASISED BY US] 7. WE FIND THAT ARTICLE -5 OF INDIA-US DTAA AND ART ICLE -5 OF INDIA -THAILAND DTAA HAVE ALMOST SIMILAR CLAUSE. BOTH SIDES ARE UNANIMOU S IN STATING THAT THE NATURE OF TRANSACTIONS AND TERMS AND CONDITIONS OF TRANSACTIO NS BETWEEN ASSESSEE AND INDIAN AE IN BOTH THE CASES ARE SIMILAR. THE REVENUE HAS N OT BROUGHT ON RECORD ANY DISTINGUISHING FACTOR IN THE PRESENT SET OF APPEALS BEFORE US. THEREFORE THE FINDINGS GIVEN BY THE CO-ORDINATE BENCH OF TRIBUNAL WHILE AD JUDICATING THE APPEAL IN THE CASE OF ASSESSEES GROUP CONCERN GIA-US WOULD MUTATIS MU TANDIS APPLY TO PRESENT APPEAL. RESPECTFULLY FOLLOWING THE ORDER OF CO-ORDINATE BEN CH WE HOLD THAT GIA INDIA LABORATORIES PVT. LTD. IS NOT AGENCY PE/PE OF THE A SSESSEE. CONSEQUENTLY GROUND NO.2 OF THE APPEAL IS DECIDED IN FAVOUR OF THE ASSE SSEE. 8. THE ASSESSEE IN GROUND NO. 1 OF THE APPEAL HAS A SSAILED VALIDITY OF RE- ASSESSMENT PROCEEDINGS. NO SUBMISSIONS WERE MADE BY THE LD. COUNSEL FOR THE ASSESSEE ON THIS LEGAL GROUND. ERGO GROUND NO. 1 O F APPEAL IS DISMISSED. 9. IN GROUND OF APPEAL NO. 3 THE ASSESSEE HAS ASSA ILED ATTRIBUTION TO THE ALLEGED PE IN INDIA. SINCE THE ASSESSEE HAS SUCCEEDED ON T HE PRIMARY ISSUE THE ALTERNATE GROUND HAS BECOME ACADEMIC THEREFORE NOT DELIBERA TED UPON. 10. IN GROUND OF APPEAL NO. 4 THE ASSESSEE HAS AS SAILED ESTIMATION OF GROSS PROFITS. SINCE THE ASSESSEE HAS SUCCEEDED ON THE P RIMARY ISSUE THIS GROUND HAS BECOME ACADEMIC THEREFORE NOT DELIBERATED UPON. 11 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) 11. IN GROUND NO.5 OF APPEAL THE ASSESSEE HAS ASSA ILED NON-GRANTING OF TDS CREDIT OF RS.3 10 277/-. WE DEEM IT APPROPRIATE TO RESTORE THIS ISSUE TO THE ASSESSING OFFICER FOR RE-EXAMINATION/RECONCILIATION. THE ASS ESSING OFFICER IS DIRECTED TO ALLOW BENEFIT OF TDS CREDIT TO THE ASSESSEE AFTER VERIFIC ATION OF RECORDS IN ACCORDANCE WITH LAW. THE GROUND NO.5 OF THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 12. IN GROUND NO.6 OF APPEAL THE ASSESSEE HAS ASSA ILED LEVY OF INTEREST UNDER SECTION 234A OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). THE CONTENTION OF THE ASSESSEE IS THAT THE ASSESSEE IS A FOREIGN COMPANY. THE DUE DATE FOR FILING RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR WAS 31/10/2 010. THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 05/10/2010 I.E. WELL B EFORE THE DUE DATE. THE REVISED RETURN WAS FILED ON 30/03/2012. THE ASSESSING OFFI CER HAS WRONGLY LEVIED INTEREST UNDER SECTION 234A OF THE ACT. SINCE THE ASSESSEE HAS FILED ORIGINAL RETURN OF INCOME WITHIN DUE DATE UNDER THE PROVISIONS OF SECTION 139 (1) OF THE ACT INTEREST UNDER SECTION 234A IS NOT LEVIABLE. THE PROVISIONS OF SEC TION 234A OF THE ACT ARE TRIGGERED WHERE THERE IS DEFAULT IN FURNISHING RETURN OF INCO ME I.E. THE RETURN OF INCOME IS FILED BEYOND DUE DATE AS MANDATED UNDER SECTION 139(1) OR (4) OF THE ACT. THE ISSUE IS RESTORED TO THE FILE OF ASSESSING OFFICER FOR VERIF ICATION OF FACTS. IF THE RETURN IS FILED BY THE ASSESSEE WITHIN THE DUE DATE THE PROVISIONS OF SECTION 234A OF THE ACT ARE NO ATTRACTED HENCE NO INTEREST TO BE LEVIED. THE GRO UND NO.6 OF THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 13. IN GROUND NO.7& 8 OF THE APPEAL THE ASSESSEE H AS ASSAILED CHARGING OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT. CHARGING OF INTEREST UNDER SECTION 234B & 234C OF THE ACT IS CONSEQUENTIAL HENCE THIS ISSUE REQUIRES NO SEPARATE ADJUDICATION. 14. THE GROUND 9 OF APPEAL IS GENERAL IN NATURE HE NCE REQUIRE NO ADJUDICATION. 15. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED IN THE TERMS AFORESAID. 12 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) ITA NOS 1136/MUM/2015 851/MUM/2016 2295/MUM/2017 7040/M UM/2017 6380/MUM/2018 7741/MUM/2019 A.YS.2011-12 TO 201 6-17: 16. IN THESE SIX APPEALS THE ASSESSEE HAS RAISED T HREE ALTERNATE CONTENTIONS ASSAILING THE ASSESSMENT ORDER PASSED UNDER SECTION 144C(1) R.W.S. 143(13) OF THE ACT VIZ.: - CHALLENGE TO THE FINDINGS HOLDING APPELLANT/ASSE SSEE IS HAVING PE IN INDIA; - ASSAILING ATTRIBUTION OF 50% RECEIPTS TO ALLEGED ASSESSEES PE IN INDIA; AND - ASSAILING ESTIMATION OF GROSS PROFITS. THE GROUNDS OF APPEALS IN ALL THESE SIX APPEALS AR E IDENTICAL TO GROUND NO. 2 TO 4 RAISED IN THE APPEAL FOR A.Y.2010-11 REPRODUCED IN PARA 2 ABOVE. 17. THE FUNDAMENTAL ISSUE THAT RUN COMMON IN ALL TH ESE APPEALS IS WHETHER THE ASSESSEE/APPELLANT IS HAVING PE IN INDIA? WE HAVE ADJUDICATED THIS ISSUE IN THE APPEAL OF ASSESSEE FOR 2010-11. SINCE FACTS GERMA NE TO THE ISSUE IN ALL THESE APPEALS ARE IDENTICAL THE FINDINGS GIVEN BY US WHILE ADJUD ICATING THE APPEAL FOR ASSESSMENT YEAR 2010-11 WOULD MUTATIS MUTANDIS APPLY TO THE AP PEALS OF ASSESSEE FOR AYS 2011- 12 TO 2016-17. CONSEQUENTLY THE ISSUE IS DECIDED I N FAVOUR OF THE ASSESSEE FOR PARITY OF REASONS. 18. SINCE THE PRIMARY GROUND HAS BEEN DECIDED IN F AVOUR OF THE ASSESSEE THE ALTERNATE GROUNDS RAISED IN THE APPEALS HAVE BECOME ACADEMIC HENCE ARE NOT DELIBERATED UPON. 19. IN THE RESULT APPEALS OF THE ASSESSEE FOR ASSE SSMENT YEAR 2011-12 TO 2016-17 ARE ALLOWED. 13 GEMOLOGICAL RESEARCH (THAILAND) COMPANY LTD. (GROUP CASES) 20. TO SUM UP APPEAL OF THE ASSESSEE FOR ASSESSMEN T YEAR 2010-11 IS PARTLY ALLOWED AND APPEALS FOR ASSESSMENT YEARS 2011-12 TO 2016-17 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY THE 03 RD DAY OF MAY 2021. SD/- SD/- (PRAMOD KUMAR) (VIKAS AWAS THY) / VICE PRESIDENT #$ ! / JUDICIAL MEMBER / MUMBAI 1)/ DATED: 03/05/2021 VM SR. PS (O/S) $ 2 3%/ COPY OF THE ORDER FORWARDED TO : 1. '+ / THE APPELLANT 2. $ / THE RESPONDENT. 3. 4 ( )/ THE CIT(A)- 4. 4 CIT 5. 56 $ $) . . . / DR ITAT MUMBAI 6. 678 9: / GUARD FILE. BY ORDER //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT MUMBAI