M/S. NITIN N. BENDRA, MUMBAI v. THE ACIT 18(3), MUMBAI

ITA 2588/MUM/2008 | 2004-2005
Pronouncement Date: 21-05-2010 | Result: Dismissed

Appeal Details

RSA Number 258819914 RSA 2008
Assessee PAN AAEPB8814B
Bench Mumbai
Appeal Number ITA 2588/MUM/2008
Duration Of Justice 2 year(s) 1 month(s) 10 day(s)
Appellant M/S. NITIN N. BENDRA, MUMBAI
Respondent THE ACIT 18(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 21-05-2010
Assessment Year 2004-2005
Appeal Filed On 11-04-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI D. MANMOHAN VICE PRESIDENT AND SHRI A.L. GEHLOT ACCOUNTANT MEMBER ITA NO. 2588/M/2008 ASSESSMENT YEAR: 2004-05 NITIN N. BEDRE APPELLANT 13-B NAVIGIRE HOUSE PITAMBER LANE MAHIM (WEST) MUMBAI 400 016. (PAN AAEPB8814B) VS. ASSTT. COMMISSIONER OF INCOME-TAX RESPONDENT 18(3) PIRAMAL CHAMBERS LALBAUG MUMBAI. APPELLANT BY : MR. B.V. JHAVERI/MS. PRITI SHUKLA RESPONDENT BY : MR. S.S. RANA/ANKUR GARG ORDER PER A.L. GEHLOT A.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT (A)- XXVIII MUMBAI PASSED ON 02.01.2008 FOR THE ASSESSMENT YEAR 2004-05. 2. THE SOLE EFFECTIVE GROUND RAISED IN THIS APPEAL IS THAT THE CIT(A) ERRED IN HOLDING THAT THE AMOUNT RECEIVED BY THE ASSESSEE AS COMING OF RS. 12 77 007/- IS SALARY INCOME IN STEAD OF BUSINESS INCOME. THE GROUNDS FROM SL. NO. 2 TO 14 ARE SUPPOR TIVE IN NATURE TO THE MAIN GROUND. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS A PARTNER IN M/S NAVIGRE & CO. AND DIRECTOR OF M/S YA MAI FILTECH (P) LTD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS T HE AO NOTICED THAT AS PER THE TDS CERTIFICATE THE ASSESSEE RECEI VED GROSS SALARY AMOUNTING TO RS. 12 77 007/- AFTER ALLOWING DEDUCTI ON U/S 16(1) OF RS. 20 000/-. THE COMPANY HAS DEDUCTED TDS OF RS. 3 11 850/-. ITA NO. 2588/M/08 NITIN N. BEDRE 2 HOWEVER THE ASSESSEE HAS SHOWN THE SAID AMOUNT OF RS. 12 77 007/- UNDER THE HEAD INCOME FROM BUSINESS I N THE COMPUTATION FILED ALONG WITH THE RETURN OF INCOME. THE ASSESSEE CLAIMED EXPENDITURE OF RS. 9 12 475/- AGAINST THE S AID INCOME. THE AO REJECTED THE ASSESSEES CLAIM AND ASSESSED THE I NCOME AS INCOME FROM SALARY. THE AO HAS ALSO DISALLOWED THE EXPENDITURE BY STATING IN PARA 5.8 OF HIS ORDER THAT THE COMPANY H AS REIMBURSED EXPENSES CLAIMED BY THE ASSESSEE RELATING TO THE SA LE. THE EXPENSES CLAIMED BY THE ASSESSEE ARE PERSONAL IN NATURE. THE CIT(A) WHILE CONFIRMING THE ORDER OF AO OBSERVED THAT THE AO HAS RIGHTLY NOTED THAT THERE IS NO INDEPENDENT BUSINESS ACTIVITY CARR IED ON BY THE ASSESSEE AS NO PROFIT AND LOSS A/C OR BALANCE SHEET OR NO INCOME AND EXPENDITURE ACCOUNT OR STATEMENT OF AFFAIRS HAS BEEN PRODUCED BY THE ASSESSEE. THE CIT(A) OBSERVED THAT THE CONTE NTION OF THE ASSESSEE IS NOT ACCEPTABLE BECAUSE AS PER THE SERVI CE CONDITIONS OF THE ASSESSEE WHICH IS REPRODUCED BY THE AO IN PARA 4.5 OF THE ASSESSMENT ORDER WHEREIN IT WAS RESOLVED THAT MR. N ITIN N. BEDRE DIRECTOR OF THE COMPANY HAS BEEN LOOKING AFTER SALE S AND ADMINISTRATION PART OF THE COMPANY AND HE HAS BEEN PAID COMMISSION @5% ON SALES TURNOVER AS PER P&L A/C. AS PER THIS RESOLUTION THE ASSESSEE IS NOT ONLY LOOKING AFTER S ALES BUT ALSO ADMINISTRATION PART OF THE COMPANY THEREFORE HIS CONTENTION THAT HE IS HAVING COMPLETE FREEDOM OF WORK AS CONTRACTOR AND NOT AN EMPLOYEE OF THE COMPANY IS NOT CORRECT. THE CIT(A ) HAS ALSO NOTED THAT THE ASSESSEE HAS FAILED TO BRING ON RECORD TO SHOW THAT THE ASSESSEE IS DOING ANY OTHER INDEPENDENT BUSINESS AC TIVITY COMMISSION INCOME FROM M/S YAMAI FILTECH PVT. LTD. THE CIT(A) ALSO NOTED THAT THE FACTS ON RECORD PROVE THAT THE RELATIONSHIP BETWEEN THE COMPANY AND THE ASSESSEE IS ONE OF MAST ER AND SERVANT AND NOT OTHER WISES CLAIMED BY THE ASSESSEE . THE CASE LAWS RELIED UPON THE ASSESSEE ARE DISTINGUISHABLE ON FAC TS AND DO NOT APPLY IN THE CASE OF THE ASSESSEE. IN RESPECT OF T HE CONTENTION OF THE ASSESSEE THAT FOR THE LAST 11 YEARS THE ASSESSE E IS SHOWING COMMISSION INCOME AS BUSINESS INCOME AND DEPARTMENT IS ACCEPTING THIS INCOME AS BUSINESS INCOME AND ALLOWE D THE DEDUCTION OF BUSINESS EXPENDITURE EVEN IN THE SCRUT INY ASSESSMENT ITA NO. 2588/M/08 NITIN N. BEDRE 3 THE CIT(A) HELD THAT THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE BECAUSE EACH ASSESSMENT YEAR IS INDEPEN DENT OF THE OTHER THE DOCTRINE OF RES JUDICATA DOES NOT STRICT LY APPLY TO INCOME TAX PROCEEDINGS FOR WHICH THE CIT(A) PLACED RELIAN CE ON THE DECISION OF CIT VS. NEO POLY PACK (P) LTD. 245 ITR 492 AND THE JUDGMENT OF HONBLE KERALA HIGH COURT IN THE CASE O F KRISHNA BHATT VS. AGRICULTURAL ITO 130 ITR 894 (KERALA). THE CI T(A) HAS ALSO RELIED UPON THE JUDGMENT IN THE CASE OF CIT VS. DU RGA PRASAD MORE [1971] 82 ITR 540 (SC) AND OTHER DECISIONS AS NOTED BY THE CIT(A) AT PAGES 13 & 14 OF HIS ORDER. AS REGARDS T HE CONTENTION OF THE ASSESSEE THAT THE COMPANY HAS NOT DEDUCTED PF F ROM SALARY OF THE ASSESSEE THE CIT(A) HELD THAT ANY VIOLATION O F PF ACT IS REQUIRED TO BE CONSIDERED BY THE PF AUTHORITIES AND NO BENEFIT OF THIS ACTION OF THE ASSESSEE CAN BE GIVEN TO THE ASS ESSEE IN IT ACT. THE CIT(A) HAS ALSO NOT ACCEPTED THE ASSESSEES CON TENTION THAT IN AY 1994-05 AND 1996-97 THE ASSESSMENTS WERE COMPLET ED U/S 143(3) THAT THIS CONTENTION ALSO DOES NOT HELP TO T HE CASE OF THE ASSESSEE AS IN THOSE ASSESSMENT YEARS THERE WAS NO DISCUSSION WHETHER THE COMMISSION INCOME IS ASSESSABLE AS SALA RY INCOME OR BUSINESS INCOME. IN RESPECT OF AY 2001-02 THE CIT( A) DID NOT ACCEPT THE ASSESSEES CONTENTION OBSERVING THAT THE ASSESSEE IS NOT CORRECT AS THE DISPUTE BEFORE THE ITAT WAS WHETHER THE PROVISIONS OF SECTION 40A(2)(B) IS APPLICABLE IN THE PAYMENT O F COMMISSION OR NOT. THE ITAT IN PARA 4 &5 HAS CLEARLY MENTIONED T HAT REMUNERATION WAS PAID TO THE ASSESSEE BY WAY OF COM MISSION AS THERE WAS NO DISPUTE WHETHER THIS INCOME IS SALARY INCOME OR BUSINESS INCOME. 4. THE LEARNED AR MAINLY RELIED UPON THE SUBMISSION S WHICH WERE MADE BEFORE THE CIT (A) WHICH HAS BEEN PLACED AT PAGE NOS. A TO H OF ASSESSEES PAPER BOOK. BRIEFLY THOSE SUBMI SSIONS ARE SUMMARIZED AS UNDER:- 4.1 THE ASSESSEE HAS CLAIMED THE FOLLOWING AMOUNTS FROM COMMISSION INCOME AS EXPENSES WHICH ARE AS UNDER:- SR.NO. EXPENSES AMOUNT(RS. ITA NO. 2588/M/08 NITIN N. BEDRE 4 1. BUSINESS PROMOTIONAL EXPENSES 24093 2. DEPRECIATION 652649 3. INSURANCE CHARGES 66329 4 INTEREST ON CAR LOAN 162347 5 PROFESSIONAL FEES 1500 6 PROFESSIONAL TAX 2500 7 TELEPHONE EXPENSES 3057 4.2 THE SUBMISSION OF THE ASSESSEE IS THAT THE PRAC TICE OF SHOWING COMMISSION RECEIPT AS BUSINESS INCOME HAS B EEN CONSISTENTLY FOLLOWED BY THE ASSESSEE SINCE AY 1994 -95. A CHART SHOWING VARIOUS YEARS IN WHICH THE AMOUNT RECEIVED BY THE ASSESSEE AS COMMISSION FROM M/S FILTECH HAS BEEN TA XED AS BUSINESS INCOME BY THE REVENUE AUTHORITIES IS REPR ODUCED BELOW:- ASSESSMENT YEAR AMOUNT RECEIVED AS COMMISSION RECEIVED FROM TREATMENT WHILE COMPUTING TAX ON COMMISSION INCOME 1994-95 178245 M/S YAMAI FILTECH PVT. BUSINESS 1995-96 300000 M/S YAMAI FILTECH PVT. BUSINESS 1996-97 351888 M/S YAMAI FILTECH PVT. BUSINESS 1997-98 445586 M/S YAMAI FILTECH PVT. BUSINESS 1998-99 457385 M/S YAMAI FILTECH PVT. BUSINESS 1999-00 315631 M/S YAMAI FILTECH PVT. BUSINESS 2000-01 298946 M/S YAMAI FILTECH PVT. BUSINESS 2001-02 649850 M/S YAMAI FILTECH PVT. BUSINESS 2002-03 350771 M/S YAMAI FILTECH PVT. BUSINESS 2003-04 459360 M/S YAMAI FILTECH PVT. BUSINESS 4.3 THE LEARNED AR SUBMITTED THAT THE DEPARTMENT SH OULD FOLLOW CONSISTENCY. HE RELIED UPON THE FOLLOWING JUDGMENTS IN SUPPORT OF HIS CASE:- 1. CIT VS. NEO POLY PACK (P) LTD. 245 ITR 492 (DE LHI) 2. WEALTH TAX & ALLIED FINANCE P. LTD. 289 ITR 31 8 (DELHI) 3. CIT VS. LAGAN KALA UPVAN 259 ITR 489 (DELHI) ITA NO. 2588/M/08 NITIN N. BEDRE 5 4. DIRECTOR OF INCOME TAX (EXEMPTION) & ANR. V. APP AREL EXPORT PROMOTION COUNCIL 244 ITR 734 (DELHI) 5. TARABEN RAMANBHAI PATEL & ORS. V. ITO & ORS. 21 5 ITR 323 (GUJ.) 6. CWT V. N.R. SIRKAR 178 ITR 311 (GAUHATI) 7. KRISHNA BHAT V. AGRICULTURAL INCOME-TAX OFFICER 130 ITR 894 (KERALA) 8. CIT VS. BELPAHAR REFRACTORIES LTD. 128 ITR 610 4.4 THE ASSESSEE PLEADED THAT THE COMMISSION INCOME MAY BE TAXED UNDER THE HEAD INCOME FROM BUSINESS AND ALLOW S DEDUCTION OF EXPENSES AS CLAIMED BY THE ASSESSEE IN HIS RETUR N INCOME. 5. THE LEARNED DR ON THE OTHER HAND RELIED UPON THE ORDERS OF REVENUE AUTHORITIES AND SUBMITTED THAT TDS CERTIFIC ATE NOT ONLY SHOWS THE TAX AS DEDUCTED AT SOURCE BUT ALSO SHOWS STANDARD DEDUCTION AND DEDUCTION OF PROFESSIONAL TAX. AS REG ARDS ADDITIONAL EVIDENCE THE LEARNED DR SUBMITTED THAT THOUGH THE DETAILS WERE NOT PRODUCED BEFORE THE AO THEREFORE SAME MAY NOT B E ADMITTED. AS REGARDS CONSISTENCY THE LEARNED DR SUBMITTED THAT OUT OF 10 YEARS MOST OF THE ASSESSMENTS WERE MADE WITHOUT SC RUTINY U/S 143(1)(A) OF THE ACT. THE LEARNED DR SUBMITTED THAT DEPARTMENT DID NOT TAKE ANY VIEW IN THIS REGARD WHETHER COMMISSION RECEIVED IS ASSESSABLE UNDER THE HEAD BUSINESS OR SALARY. HE FU RTHER SUBMITTED THAT IT IS A MISTAKE IN EARLIER YEAR AND THE SAME SHOULD NOT BE ALLOWED TO BE CONTINUED. THE LEARNED DR REL IED UPON THE ORDER OF CIT(A) PARTICULARLY PARA 3.4. THE LEARNED DR SUBMITTED THAT WHERE THERE IS A ALTERATION IN THE NATURE OF I NCOME ADDITIONAL EVIDENCE CANNOT BE ADMITTED. THE LEARNED DR SUBMITT ED THAT DIRECTOR OR MANAGER THEY ARE EMPLOYEES AND THE CIT (A) HAS RIGHTLY RELIED UPON VARIOUS DECISIONS WHILE CONFIRMING THE ORDER OF AO. 6. IN THE REJOINDER THE LEARNED AR SUBMITTED THAT THE ASSESSEE DID NOT CLAIM THE STANDARD DEDUCTION IN HIS COMPUTA TION OF TOTAL INCOME. AS REGARDS ADDITIONAL EVIDENCE THE LEARNED AR SUBMITTED THAT THE COPY OF THE CURRENT ACCOUNT IS WITH THE CO MPANY. HE FURTHER SUBMITTED THAT IT IS NOT A MISTAKE BY THE A O BUT THE AO HAS ITA NO. 2588/M/08 NITIN N. BEDRE 6 TAKEN A DIFFERENT VIEW THAN THE VIEW TAKEN IN EARLI ER YEARS. HE FURTHER SUBMITTED THAT THERE IS NO MATERIAL ON RECO RD TO SHOW THAT THERE IS EMPLOYER AND EMPLOYEE RELATIONSHIP IN THE CASE UNDER CONSIDERATION. 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD AS WELL AS GONE THROUGH THE DECI SIONS CITED. THE ISSUE TO BE EXAMINE UNDER CONSIDERATION IS WHETHER THE AO IS EMPOWER TO ASSESS THE AMOUNT RECEIVED UNDER THE HEA D INCOME FROM SALARY AFTER REJECTING ASSESSEES CLAIM TO AS SESS AS INCOME FROM BUSINESS PARTICULARLY WHEN IN EARLIER YEARS I T WAS ASSESSED AS INCOME FROM BUSINESS. FOR EXAMINATION OF THE ISSUE ON MERIT IT WILL BE PROPER AT THE OUTSET TO CONSIDER THE EXACT NATUR E OF THE RECEIPT. THE NATURE OF A PARTICULAR RECEIPT DECIDES UNDER WH ICH HEAD IT IS ASSESSABLE. THUS SUCH ISSUE CAN DECIDE ON THE FACTS OF THE RESPECTIVE CASE. THE ADMITTED FACTS OF THE CASE UND ER CONSIDERATION ARE THAT THE ASSESSEE IS DIRECTOR OF M/S YAMAI FILT ECH (P) LTD. THE ASSESSEE RECEIVED GROSS AMOUNT RS. 12 77 007/-.THE COMPANY TREATED IT AS SALARY PAYMENT AND DEDUCTED TAX AT S OURCE RS. 3 11 850/- AFTER ALLOWING DEDUCTION U/S 16(1) OF RS . 20 000/-. A TDS CERTIFICATE WAS ALSO ISSUED ACCORDINGLY. AS PER THE PAST PRACTICE THE ASSESSEE HAS SHOWN THE SAID AMOUNT OF RS. 12 77 007/- UNDER THE HEAD INCOME FROM BUSINESS AND CL AIMED CERTAIN EXPENDITURES AGAINST THAT INCOME IN THE COMPUTATIO N FILED ALONG WITH THE RETURN OF INCOME. THE AO ASSESSES IT UNDER THE HEAD INCOMES FROM SALARY. WHAT IS BUSINESS INCOME? THE I NCOME WHICH ARISES FROM BUSINESS IS BUSINESS INCOME. THE WORD BUSINESS' CONNOTES SOME REAL SUBSTANTIAL AND SYSTEMATIC OR O RGANISED COURSE OF ACTIVITY OR CONDUCT WITH A SET PURPOSE. FOR EXAM PLE IN A CASE WHERE AN ASSESSEE DOES NOT DEAL SYSTEMATIC OR ORGAN ISED COURSE OF ACTIVITY IN SHARES AND IN SPITE OF THE FACT THAT HE HAS INVESTED HIS MONIES IN SHARES THAT CANNOT BE SAID TO BE HIS BUSI NESS THOUGH INVESTMENT IN SHARES WOULD BE A SOURCE OF INCOME OF THE ASSESSEE. IN THE CASE UNDER CONSIDERATION THE AMOUNT RECEIVED TO THE ASSESSEE AS DIRECTOR OF M/S YAMAI FILTECH (P) LTD. SECTION 2(20) OF INCOME-TAX ACT LAYS DOWN INTER ALIA THAT DIRECTO R IN RELATION TO A ITA NO. 2588/M/08 NITIN N. BEDRE 7 COMPANY SHALL HAVE THE MEANING ASSIGNED TO IT IN TH E COMPANIES ACT 1956. SEC. 2(13) OF THE COMPANIES ACT 1956 DE FINES DIRECTOR AS INCLUDING ANY PERSON OCCUPYING THE POSITION OF A DIRECTOR BY WHATEVER NAME CALLED WHILE S. 2(26) OF THE SAID AC T DEFINES MANAGING DIRECTOR TO MEAN A DIRECTOR WHO BY VIRT UE OF AN AGREEMENT WITH THE COMPANY OR OF A RESOLUTION PASSE D BY THE COMPANY IN GENERAL MEETING OR BY ITS BOARD OF DIREC TORS OR BY VIRTUE OF ITS MEMORANDUM OR ARTICLES OF ASSOCIATION IS ENTRUSTED WITH SUBSTANTIAL POWERS OF MANAGEMENT WHICH WOULD N OT OTHERWISE BE EXERCISABLE BY HIM AND INCLUDES A DIRECTOR OCCU PYING THE POSITION OF A MANAGING DIRECTOR BY WHATEVER NAME C ALLED. THE PROVISO TO THAT SECTION PROVIDES THAT A MANAGING DI RECTOR OF A COMPANY SHALL EXERCISE HIS POWERS SUBJECT TO THE SU PERINTENDENCE CONTROL AND DIRECTION OF ITS BOARD OF DIRECTORS. 7.1 BASICALLY IF THE ASSESSEE HAD OCCUPIED THE OFFICE OF A DIRECTOR OR HAS BECOME THE MANAGING THAT WAS BECAUSE HE WAS A SHAREHOLDER AND BEING A SHAREHOLDER OF A COMPANY A ND IN ADDITION A DIRECTOR OF A COMPANY CANNOT BE CALLED A BUSINES S. DIRECTORSHIP ARE OFFICES WHICH ARE HELD BY A PERSON IN A COMPANY AND MERELY BECAUSE THE DIRECTOR EARNS REMUNERATION AND IN SOME CASES REMUNERATION IS ALSO IN THE FORM OF COMMISSION PAID TO A DIRECTOR THAT DOES NOT AMOUNT TO CARRYING ON OF A BUSINESS. THE ISSUE UNDER CONSIDERATION CAN BE EXAMINED CONSIDERING PROVISION S OF COMPANIES ACT. SEC. 314 OF COMPANIES ACT PROVIDES T HAT EXCEPT WITH THE CONSENT OF THE COMPANY ACCORDED BY A SPECI AL RESOLUTION NO DIRECTOR OF A COMPANY SHALL HOLD ANY OFFICE OR P LACE OF PROFIT. THE PROVISIONS OF SEC. 314 OF THE COMPANIES ACT 195 6 IMPOSE CERTAIN CONDITIONS WHICH GOVERN APPOINTMENT OF A DI RECTOR HIS RELATIVE OR A PARTNER OR RELATIVE OF A PARTNER ETC . TO AN OFFICE OR PLACE OF PROFIT IN THE COMPANY. A PERSON IS SAID TO HOLD A PLACE OF PROFIT WHERE WITHIN THE BUSINESS ORGANIZATION OF TH E COMPANY HE PERFORMS CERTAIN FUNCTIONS ON BEHALF OF THE COMPANY THOUGH NOT INCIDENTAL TO HIS APPOINTMENT TO ANY DESIGNATED OFF ICE AND HE IS BEING REMUNERATED FOR PERFORMING THOSE FUNCTIONS AN D IN EXERCISE OF THOSE FUNCTIONS HE ACTS UNDER THE CONTROL AND DI RECTIONS OF THE ITA NO. 2588/M/08 NITIN N. BEDRE 8 MANAGEMENT OF THE COMPANY. OFFICE OR PLACE OF PR OFIT AS EXPLAINED IN SUB-SECTION (3) WILL OBVIOUSLY INCLUDE SELLING AND BUYING AGENTS RECEIVING COMMISSION AND/OR SALARY. W HEN WE CONSIDER THE FACTS OF THE CASE UNDER CONSIDERATION WE NOTICE THAT THE ASSESSEE RECEIVED RS.12 77 007/- BEING COMMISS ION CALCULATED @ 5% ON THE BASIS OF SALES MADE BY COMPANY AND AGAI NST WHICH HE CLAIMED EXPENDITURE OF RS.9 12 475/-. THESE FACTS S HOW THAT THE ASSESSEE HOLDS PLACE OF PROFITS WHICH IS CONTRARY T O THE PROVISIONS OF SEC.314 OF THE COMPANIES ACT. IT IS TRUE THAT IF ASSESSEE DID NOT CLAIM ABOVE EXPENDITURE AGAINST THE SAID REMUNERATI ON THEN IT CAN BE SAID THAT HE RECEIVED ONLY DIRECTORS REMUNERATI ON CALCULATED ON THE BASIS OF SALES BUT WHEN HE CLAIMS EXPENSES TH AT MEANS THE ASSESSEE WAS GETTING NET PROFIT AFTER DEDUCTING EXP ENSES AS DIRECTOR WHICH IS CERTAINLY CONTRARY TO THE PROVISIONS OF TH E COMPANIES ACT. 7.2 THE APEX COURT IN THE CASE OF RAM PRASHAD V. COMMISSIONER OF INCOME-TAX 86 ITR 122(SC) HAS EXAMI NED AN IDENTICAL ISSUE. THE FACTS OF THAT CASE WERE THAT T HE ASSESSEE AND HIS WIFE OWNED A LARGE NUMBER OF SHARES IN A PRIVAT E LIMITED COMPANY ENGAGED IN THE BUSINESS OF RUNNING HOTELS. BY VIRTUE OF ARTICLE 109 OF THE ARTICLES OF ASSOCIATION OF THE S AID COMPANY THE ASSESSEE BECAME THE FIRST MANAGING DIRECTOR ON TERM S AND CONDITIONS AGREED TO AND EMBODIED IN AN AGREEMENT D ATED NOVEMBER 20 1955 BETWEEN HIMSELF AND THE COMPANY. UNDER THE SAID AGREEMENT THE ASSESSEE WAS TO RECEIVE RS. 2 0 00 PER MONTH A FIXED SUM OF RS. 500 P. M. AS CAR ALLOWANCE 10 PER CENT OF GROSS PROFITS OF THE COMPANY AND HE AND HIS WIFE WERE ENT ITLED TO FREE BOARD AND LODGING IN THE HOTEL. FOR THE ASSESSMENT YEAR 1956-57 FOR WHICH THE ACCOUNTING YEAR IS THE YEAR ENDING 30 TH SEPTEMBER 1955 THE ASSESSEE WAS ASSESSED IN RESPECT OF RS. 5 3 913 PAYABLE TO HIM AS 10% OF THE GROSS PROFITS OF THE COMPANY W HICH HE GAVE UP SOON AFTER THE ACCOUNTS WERE FINALISED BUT BEFORE T HEY WERE PASSED BY THE GENERAL MEETING OF THE SHAREHOLDERS. THE ABO VE AMOUNT WAS GAVE UP BY HIM BECAUSE THE COMPANY WOULD NOT BE MAK ING NET PROFITS IF THE STIPULATED COMMISSION WAS PAID TO HI M. THE ASSESSEE CLAIMED THAT THE AMOUNT GIVEN UP BY HIM WAS NOT LIA BLE TO BE ITA NO. 2588/M/08 NITIN N. BEDRE 9 INCLUDED IN HIS TOTAL INCOME BECAUSE THE AMOUNT HAD NOT ACCRUED TO HIM AT ALL AT ANY RATE IN THE ACCOUNTING YEAR ENDED 31ST MARCH 1956 AND THAT EVEN ASSUMING THAT IT HAD ACCRUED IN THE ACCOUNTING YEAR ENDED 31ST MARCH 1956 IT IS NOT T AXABLE UNDER SECTION 7 OR SECTION 10 OF THE INDIAN INCOME-TAX AC T 1922 (HEREINAFTER CALLED THE ' ACT ') (SECTION 7 AND S ECTION10 OF 1922 ACT ARE EQUAL TO SECTION 15 AND 28 RESPECTIVELY OF 1961 ACT) THE QUESTIONS OF LAW WHICH WERE REFERRED TO THE HIGH CO URT ARE AS FOLLOWS: ' 1. WHETHER THE SUM OF RS. 53 913 WAS A REVENUE RE CEIPT OF THE ASSESSEE OF THE PREVIOUS YEAR ? 2. WHETHER THE AMOUNT IS CHARGEABLE UNDER SECTION 7 OR SECTION 10 OF THE INCOME-TAX ACT ? 3. IF THE AMOUNT IS CHARGEABLE UNDER SECTION 10 IS THE ASSESSEE ENTITLED TO A DEDUCTION OF RS. 53 913 UNDER SECTION 10(1) OR SECTION 10(2) ? ' 7.3 THE HIGH COURT ANSWERED THE FIRST QUESTION I N THE AFFIRMATIVE AND IN FAVOUR OF THE REVENUE AND ON THE SECOND QUE STION IT WAS OF THE VIEW THAT THE AMOUNT PAYABLE AS COMMISSION WAS CHARGEABLE UNDER SECTION 7 AS SALARY AND NOT UNDER SECTION 10 OF THE ACT. ON THIS VIEW IT DID NOT THINK IT NECESSARY TO ANSWER THE THIRD QUESTION. THE APEX COURT HELD AS UNDER:- A PERUSAL OF THE ARTICLES AND TERMS AND CONDITION S OF THE AGREEMENT DEFINITELY INDICATES THAT THE ASSESSEE WAS APPOINTED TO MANAGE THE BUSINESS OF THE COMPANY IN TERMS OF THE ARTICLES OF ASSOCIATION AND WITHIN THE POWERS PRESCRIBED THEREIN. REFERENCE MAY PARTICULARLY BE MADE TO ARTICLES 139 AND 142 TO ASCERTAIN THE NATURE OF THE CONTROL IMPOSED BY THE COMPANY UPON THE MANAGIN G DIRECTOR. UNDER THE FORMER THE ADDITIONAL WORK WHICH HE CAN DO AS AN AGENT OR MANAGER OF THE COMPANY CAN BE DONE ON TERMS AND CONDITIONS AND ON SUCH REMUNERATI ON AS CAN BE AGREED UPON BETWEEN HIM AND THE DIRECTORS OF THE COMPANY AND UN DER THE LATTER HE HAD TO EXECUTE THE DECISIONS THAT MAY BE ARRIVED AT BY THE BOARD F ROM TIME TO TIME. THE VERY FACT THAT APART FROM HIS BEING A MANAGING DIRECTOR HE IS GIVE N THE LIBERTY TO WORK FOR THE COMPANY AS AN AGENT IS INDICATIVE OF HIS EMPLOYMENT AS A MANAGING DIRECTOR NOT BEING THAT OF AN AGENT. SEVERAL OF THE CLAUSES OF A RTICLE 140 AS POINTED OUT BY THE HIGH COURT SPECIFICALLY EMPOWER THE BOARD OF DIREC TORS TO EXERCISE CONTROL OVER THE MANAGING DIRECTOR SUCH FOR INSTANCE TO ACCEPT TH E TITLE OF THE PROPERTY TO BE SOLD BY THE COMPANY PROVIDING FOR THE WELFARE OF THE EMPLO YEES THE POWER TO APPOINT ATTORNEYS AS THE DIRECTORS THINK FIT ETC. AS POINT ED OUT EARLIER UNDER THE TERMS OF THE AGREEMENT HE CAN BE REMOVED WITHIN THE PERIOD OF20 YEARS FOR NOT DISCHARGING THE WORK DILIGENTLY OR IF HE IS FOUND NOT TO BE ACTING IN THE INTEREST OF THE COMPANY AS MANAGING DIRECTOR. THESE TERMS ARE INCONSISTENT WIT H THE PLEA THAT HE IS AN AGENT OF ITA NO. 2588/M/08 NITIN N. BEDRE 10 THE COMPANY AND NOT A SERVANT. THE CONTROL WHICH TH E COMPANY EXERCISES OVER THE ASSESSEE NEED NOT NECESSARILY BE ONE WHICH TELLS HI M WHAT TO DO FROM DAY TO DAY. THAT WOULD BE A TOO NARROW VIEW OF THE TEST TO DETERMINE THE CHARACTER OF THE EMPLOYMENT. NOR DOES SUPERVISION IMPLY THAT IT SHOULD BE A CONT INUOUS EXERCISE OF THE POWER TO OVERSEE OR SUPERINTEND THE WORK TO BE DONE. THE CON TROL AND SUPERVISION IS EXERCISED AND IS EXERCISABLE IN TERMS OF THE ARTICLES OF ASSO CIATION BY THE BOARD OF DIRECTORS AND THE COMPANY IN ITS GENERAL MEETING. AS A MANAGING D IRECTOR HE FUNCTIONS ALSO AS A MEMBER OF THE BOARD OF DIRECTORS WHOSE COLLECTIVE D ECISIONS HE HAS TO CARRY OUT IN TERMS OF THE ARTICLES OF ASSOCIATION AND HE CAN DO NOTHING WHICH HE IS NOT PERMITTED TO DO. UNDER SECTION 17(2) OF THE INDIAN COMPANIES ACT 1913 REGULATION NO. 71 OF TABLE A WHICH ENJOINS THAT THE BUSINESS OF THE COMP ANY SHALL BE MANAGED BY THE DIRECTORS IS DEEMED TO BE CONTAINED IN THE ARTICLES OF ASSOCIATION OF THE COMPANY IN IDENTICAL TERMS OR TO THE SAME EFFECT. SINCE THE BO ARD OF DIRECTORS IS TO MANAGE THE BUSINESS OF THE COMPANY THEY HAVE EVERY RIGHT TO CO NTROL AND SUPERVISE THE ASSESSEE'S WORK WHENEVER THEY DEEM IT NECESSARY. EVERY POWER W HICH IS GIVEN TO THE MANAGING DIRECTOR THEREFORE EMANATES FROM THE ARTICLES OF ASSOCIATION WHICH PRESCRIBES THE LIMITS OF THE EXERCISE OF THAT POWER. THE POWERS OF THE ASSESSEE HAVE TO BE EXERCISED WITHIN THE TERMS AND LIMITATIONS PRESCRIBED HEREUND ER AND SUBJECT TO THE CONTROL AND SUPERVISION OF THE DIRECTORS WHICH IN OUR VIEW IS INDICATIVE OF HIS BEING EMPLOYED AS A SERVANT OF THE COMPANY. WE WOULD THEREFORE HOLD THAT THE REMUNERATION PAYABLE TO HIM IS SALARY. 7.4 AS PER THE LAW LAID OWN THE APEX COURT IN T HE ABOVE JUDGMENT IN THE CASE OF RAM PRASHAD V. COMMISSIONER OF INCOME- TAX 86 ITR 122(SC) WE FIND THAT THE REVENUE AUTHORI TIES HAS RIGHTLY ASSESSED THE SAID RECEIPT AS INCOME FROM SALARY AS THE ASSESSEE FAILED TO POINT OUT ANY CONTRARY MATERIAL EITHER FR OM ARTICLE OF ASSOCIATION OF COMPANY OR FROM OTHER RECORDS. 7.5 ONE MORE QUESTION TO BE SEEN IN THE CASE U NDER CONSIDERATION IS WHETHER THE EXPENSES CLAIMED BY TH E ASSESSEE ARE ALLOWABLE UNDER SECTION 37(1) OF THE ACT. UNDER S.3 7(1) BEFORE A DEDUCTION IS CLAIMED IT MUST BE ESTABLISHED THAT THE AMOUNT IS AN EXPENDITURE AND IT HAS FURTHER TO BE SHOWN THAT THE SAID EXPENDITURE IS LAID OUT OR EXPENDED WHOLLY AND EXCL USIVELY FOR THE PURPOSE OF THE BUSINESS. WE MAY EVEN ASSUME FOR A M OMENT THAT THE ASSESSEE WAS CARRYING ON BUSINESS AS CON-TENDED BY THE ASSESSEE BUT THEN AGAIN IT BECOMES DIFFICULT TO HOL D THAT THE EXPENDITURES WERE THE EXPENDITURES WHICH WAS LAID O UT OR EXPENDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSES OF SUCH BUS INESS PARTICULARLY WHEN EXPENDITURES RELATED TO SALE WERE REIMBURSED BY THE COMPANY AS NOTED BY THE AO IN HIS ORDER. THE A SSESSEE HAS ITA NO. 2588/M/08 NITIN N. BEDRE 11 FAILED ESTABLISH THE NEXUS WHAT SO EVER BETWEEN THE EXPENDITURES INCURRED (EXCEPT PROFESSIONAL FEE AND PROFESSIONAL TAX THESE ARE ALLOWABLE IN ACCORDANCE WITH LAW.) AND THE BUSINES S WHICH ACCORDING TO THE ASSESSEE HE WAS CARRYING ON. 7.6 COMING TO THE MAIN CONTENTION OF THE ASSESSEE IN P AST THE INCOME WAS ASSESSED BY THE DEPARTMENT UNDER THE HEA D INCOME FROM BUSINESS SO THE CONSISTENCY SHOULD BE FOLLOWE D. WE ARE AWARE ABOUT THE PRINCIPLE OF CONSISTENCY BUT IT IS ALSO P RINCIPLE THAT THE DOCTRINE OF RES JUDICATA DOES NOT APPLY TO INCOME T AX PROCEEDINGS SINCE EACH ASSESSMENT YEAR IS INDEPENDENT OF OTHER. THE APEX COURT IN THE CASE OF CIT V OSWAL AGRO MILLS LTD 313 ITR 24(SC) HAS SENT BACK THE MATTER TO THE HIGH COURT ON THE ISSUE OF ALLOW ABILITY OF ISSUE MANAGEMENT EXPENSES AS THERE WAS SUBSTAN TIAL QUESTION OF LAW. THE ASSESSEE SUCCEEDED BEFORE HIGH COURT ON THE BASIS OF RULE OF CONSISTENCY. HERE IT IS ALSO RELEVANT TO REFER ON MORE JUDGMENT OF THE APEX COURT IN THE CASE OF COMMISSIO NER OF INCOME- TAX V. BRITISH PAINTS INDIA LTD.188 ITR 44 (SC). TH E FACTS OF THAT CASE WERE THAT THE RESPONDENT A COMPANY ENGAGED I N THE MANUFACTURE AND SALE OF PAINTS HAD AS A CONSISTEN T PRACTICE VALUED ITS GOODS-IN-PROCESS AND FINISHED PRODUCTS E XCLUSIVELY AT COST OF RAW MATERIALS TOTALLY EXCLUDING OVERHEAD EX PENDITURE. THE JUSTIFICATION FOR THE PRACTICE ACCORDING TO THE RE SPONDENT WAS THAT THE GOODS BEING PAINTS HAD LIMITED STORAGE LIFE AND IF NOT QUICKLY DISPOSED OF WERE LIABLE TO LOSE THEIR MARKET VALUE . FOR THE ASSESSMENT YEARS 1963-64 AND 1964-65 THE INCOME-TA X OFFICER HELD THAT THERE WAS NO JUSTIFICATION TO RECOGNISE A PRACTICE OF VALUING STOCK OTHERWISE THAN IN ACCORDANCE WITH THE WELL- RECOGNISED PRINCIPLE OF ACCOUNTING WHICH REQUIRED T HE STOCK TO BE VALUED AT COST (VIZ. RAW MATERIAL PLUS EXPENDITURE ) OR MARKET PRICE WHICHEVER WAS LOWER. HE THEREFORE CALCULATED THE VALUE OF THE OPENING AND CLOSING STOCKS BY ADDING THE OVERHEAD E XPENDITURE. IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT FOR A NUMBER OF YEARS THE REVENUE DID NOT QUESTION THE METHOD OF A CCOUNTING REGULARLY EMPLOYED BY THE ASSESSEE. IT WAS DURING T HE ASSESSMENT YEARS IN QUESTION THAT AN OBJECTION WAS RAISED FOR THE FIRST TIME ON ITA NO. 2588/M/08 NITIN N. BEDRE 12 THE GROUND THAT OVERHEAD EXPENDITURE WAS NOT INCLUD ED IN THE VALUE OF THE STOCK. UNDER THE FACTS AND CIRCUMSTANC ES OF THE CASE THE APEX COURT HELD AS UNDER:- EACH YEAR BEING A SELF-CONTAINED UNIT AND THE TA XES OF A PARTICULAR YEAR BEING PAYABLE WITH REFERENCE TO THE INCOME OF THAT YEAR AS COMPUTED IN TERMS OF THE ACT THE METHOD ADOPTED B Y THE ASSESSEE HAS BEEN FOUND TO BE SUCH THAT INCOME CANNOT PROPE RLY BE DEDUCED THERE FROM. IT IS THEREFORE NOT ONLY THE RIGHT BU T THE DUTY OF THE ASSESSING OFFICER TO ACT IN EXERCISE OF HIS STATUTO RY POWER AS HE HAS DONE IN THE INSTANT CASE FOR DETERMINING WHAT IN HIS OPINION IS THE CORRECT TAXABLE INCOME. 7.7 NOW WE COME TO THE DECISIONS CITED BY THE LEA RNED AR. IN THE CASE OF CIT VS. NEO POLY PACK (P) LTD. 245 ITR 492 (DELHI) NO MATERIAL CHANGE IN FACTS. NO SINGLE DISTINGUISHING FEATURE PROMPTING ASSESSING OFFICER TO TAKE A DIFFERENT VIE W--CONSISTENCY TO BE MAINTAINED--NO REFERABLE QUESTION OF LAW AROSE F OR CONSIDERATION. IN THE CASE OF WEALTH TAX & ALLIED FINANCE P. LTD. 289 ITR 318 (DELHI) SINCE THE REVENUE HAD ACCEPTED THE TWO BASIC ORDERS THEREFORE HELD THAT THE REVENUE COULD NOT BE PERMITTED TO RANDOMLY CHALLENGE A SUBSEQUENT ORDER IN RESPECT OF AN ASSESSEE OR IN RESPECT OF A RANDOM ASSESSMENT YEAR UNLESS THERE IS SOME MATERIAL CHANGE IN THE FACTS. IN THE CASE OF CIT VS . LAGAN KALA UPVAN 259 ITR 489 (DELHI) THE COURT WHILE DISMIS SING THE APPEAL HELD THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAD RECORDED A CATEGORICAL FINDING THAT THE ASSESSEE HAD BEEN RUNN ING EDUCATIONAL INSTITUTIONS FOR THE PAST 25 YEARS WITHOUT ANY PROF IT MOTIVE. WHEN THE LOANS IN QUESTION WERE GIVEN IN THE EARLIER YEA RS EXEMPTION UNDER SECTION 10(22) WAS STILL NOT DENIED TO THE AS SESSEE IN RESPECT OF THOSE ASSESSMENT YEARS. THE CLAIM TO DEPRECIATIO N IN RESPECT OF CERTAIN ASSETS OF THE ASSESSEE DID NOT PER SE SHOW THE BUSINESS/PROFIT MOTIVE OF THE ASSESSEE DISENTITLIN G IT TO EXEMPTION UNDER SECTION 10(22). THE ASSESSING OFFICER WAS NOT JUSTIFIED IN TAKING A DIFFERENT VIEW ONLY IN RESPECT OF THE ASSE SSMENT YEAR 1993- 94 WHEN FROM THE ASSESSMENT YEAR 1970-71 EXEMPTION UNDER THE SAID PROVISION WAS BEING ALLOWED TO THE ASSESSEE CO NSISTENTLY. IN ITA NO. 2588/M/08 NITIN N. BEDRE 13 THE CASE OF DIRECTOR OF INCOME TAX (EXEMPTION) & AN R V. APPAREL EXPORT PROMOTION COUNCIL 244 ITR 734 (DELHI) IT WAS HELD THAT THERE WAS NO MATERIAL CHANGE IN THE ACTIVITIES OF T HE ASSESSEE AS COMPARED TO THE EARLIER YEARS. THE QUESTION OF EXEM PTION UNDER SECTION 11 OF THE ACT HAD BEEN EXAMINED IN EARLIER YEARS AND SINCE THERE WAS NO CHANGE IN EITHER THE OBJECTS OR ACTIVI TIES OF THE ASSESSEE-SOCIETY THOUGH THE DOCTRINE OF RES-JUDICA TA DID NOT STRICTLY APPLY TO INCOME-TAX PROCEEDINGS IN ORDER TO MAINTAIN CONSISTENCY THE REVENUE COULD NOT BE PERMITTED TO R AKE UP STALE ISSUES MERELY BECAUSE THE SCOPE OF APPEAL WAS WIDER THAN REFERENCE. IN THE CASE OF TARABEN RAMANBHAI PATEL & ORS. V. ITO & ORS. 215 ITR 323 (GUJ.) IT WAS HELD THAT RES JUDI CATA--NOT STRICTLY APPLICABLE TO INCOME-TAX PROCEEDINGS BUT FINDINGS I N EARLIER YEARS ON SAME FACTS IS RELEVANT. IN THE CASE OF CWT V. N. R. SIRKAR 178 ITR 311 (GAUHATI) THE COURT HELD THAT THE MATERIAL ON RECORD SHOWED THAT NO NEW FACTS HAD BEEN DISCOVERED WARRAN TING A DIFFERENT FINDING NOR WAS A DIFFERENT FINDING REQU IRED FOR DOING JUSTICE. IN THE CASE OF KRISHNA BAHT V. AGRICULTUR AL INCOME-TAX OFFICER 130 ITR 894 (KERALA) THE COURT HELD THAT I N THE ABSENCE OF ANY MATERIAL ON RECORD THE ORDERS ASSIGNING A STAT US DIFFERENT FROM WHAT WAS ASSIGNED TO THE ASSESSEE IN THE EARLIER AS SESSMENT ORDERS WERE NOT WARRANTED AND THE ORDERS WERE LIABLE TO BE QUASHED. IN THE CASE OF CIT VS. BELPAHAR REFRACTORIES LTD. 12 8 ITR 610(ORI) THE COURT HELD THAT THAT THE RULE OF RES JUDICATA D OES NOT APPLY TO ASSESSMENT PROCEEDINGS BUT THERE ARE TWO EXCEPTION S TO THE RULE NAMELY AN EARLIER DECISION ON THE SAME QUESTION CA NNOT BE REOPENED UNLESS THAT DECISION IS ARBITRARY OR PERVE RSE OR ARRIVED AT WITHOUT DUE ENQUIRY. THE SECOND LIMITATION IS THAT THE EFFECT OF REVISING THE EARLIER DECISION SHOULD NOT LEAD TO IN JUSTICE AND THE COURT MAY PREVENT AN ASSESSING AUTHORITY FROM DOING SOMETHING WHICH WOULD BE UNJUST AND INEQUITABLE. THE BASIC FA CTS OF THE CASE WERE THE SAME AS WERE BEFORE THE COURT ON THE EARLI ER OCCASION AND THE PAYMENTS WERE MADE IN TERMS OF THE SAME OBLIGAT ION. IT WOULD BE UNWISE TO DEVIATE FROM THE EARLIER CONCLUSIONS I N THE INSTANT ASSESSMENT PROCEEDINGS. THE CASES CITED BY THE LEAR NED AR DOES NOT HELP TO THE ASSESSEE AS THOSE CASES WERE DECIDED BY THE COURTS ITA NO. 2588/M/08 NITIN N. BEDRE 14 CONSIDERING THE FACTS OF THE RESPECTIVE CASE WHICH ARE NOT SIMILAR TO THE FACTS OF CASE UNDER CONSIDERATION. IN THOSE CAS ES NO FRESH FACTS WERE FOUND AND THE EARLIER DECISION WAS NOT AN ARBI TRARY OR PERVERSE OR ARRIVED AT WITH DUE ENQUIRY. THE EFFECT OF REVISING THE EARLIER DECISION LEADS TO INJUSTICE. IN THE LIGHT O F LAW LAID DOWN BY THE APEX COURT IN THE ABOVE CASES AND FACTS OF THE CASE UNDER CONSIDERATION WE FIND THAT FACTS OF THE CASE UNDER CONSIDERATION ARE DIFFERENT. IN THE CASE UNDER CONSIDERATION WE FIND THAT ONE DAY THE AO HAS TO EXERCISE HIS POWER TO CALCULATE CORRECT T AXABLE INCOME IN ACCORDANCE WITH LAW TO DO JUSTICE PARTICULARLY UNDE R THE FACTS AND CIRCUMSTANCE WHEN THE COMPANY ISSUED TDS CERTIFICAT E AFTER DEDUCTING TAX AT SOURCE IN ACCORDANCE WITH THE PROV ISIONS RELATED TO SALARY OF THE ACT WHICH WAS NOT DISPUTED BY THE ASSESSEE CONTRARY THE ASSESSEE HAS CLAIMED THE CREDIT OF THE AMOUNT OF TAX DEDUCTED AT SOURCE. THE EMPLOYER THE COMPANY HAS A LREADY CONSIDERED THE ASSESSEE DIRECTOR AS THEIR EMPLOYEE AND ISSUED TAX DEDUCTED CERTIFICATE ACCORDINGLY. THE ASSESSEE FAIL ED TO FURNISH SUFFICIENT MATERIAL INCLUDING SOME ADDITIONAL EVIDE NCE FURNISHED BEFORE US TO REBUT TO THE FINDING GIVEN BY THE EMPL OYER COMPANY OF THE ASSESSEE IN ISSUING TDS CERTIFICATE SHOWING THA T THE AMOUNT PAID TO THE ASSESSEE WAS A SALARY. IN EARLIER YEARS THE ISSUE WAS NEITHER EXAMINED WHILE PROCESSING RETURNS UNDER SEC TION 143(1) OR MAKING ASSESSMENTS UNDER SECTION 143 (3). IN OTHER WORDS THE AO DID NOT FORM ANY OPINION ON THE ISSUE IN EARLIER AS SESSMENTS. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE I S DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 21ST DAY OF MA Y 2010 SD/- SD/- (D. MANMOHAN) (A.L. GEHLOT) VICE PRESIDENT ACCOUNTAN T MEMBER DATED: 21 ST MAY 2010 ITA NO. 2588/M/08 NITIN N. BEDRE 15 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE B BENCH I.T .A.T. MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR I.T.A.T. MUMBAI. ITA NO. 2588/M/08 NITIN N. BEDRE 16 KV S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON 26.4.10 SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR 05.05.10 SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER