MAHINDRA & MAHINDRA LTD, MUMBAI v. DCIT CIR 2(2), MUMBAI

ITA 2983/MUM/2009 | 2004-2005
Pronouncement Date: 31-03-2011 | Result: Dismissed

Appeal Details

RSA Number 298319914 RSA 2009
Bench Mumbai
Appeal Number ITA 2983/MUM/2009
Duration Of Justice 1 year(s) 10 month(s) 23 day(s)
Appellant MAHINDRA & MAHINDRA LTD, MUMBAI
Respondent DCIT CIR 2(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted I
Tribunal Order Date 31-03-2011
Date Of Final Hearing 16-03-2011
Next Hearing Date 16-03-2011
Assessment Year 2004-2005
Appeal Filed On 08-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH MUMBAI BEFORE SHRI R.K. PANDA (AM) AND SMT. ASHA VIJAYARAG HAVAN (JM) ITA NO.2983/MUM/2009 ASSESSMENT YEAR- 2004-05 M/S. MAHINDRA & MAHINDRA LTD. MAHINDRA TOWERS GR. FLOOR CORPORATION TAXATION WORLI ROAD NO. 13 WORLI MUMBAI-400 018 PAN-AAACM 3025E VS. THE DCIT CIR 2(2) AAYAKAR BHAVAN MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI H.P. MAHAJANI RESPONDENT BY: SHRI SANJEEV DUTT O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 25.03.09 PASSED BY THE LD. CIT UNDER SEC 263 FOR THE ASSESSMENT YEAR 2004-05. THE CIT FOUND FROM THE ASSESSMENT REC ORDS THAT IN RESPECT OF SOME OF ISSUES THE AO HAD ALLOWED THE CL AIM OF THE ASSESSEE WITHOUT CARRYING OUT ANY EXAMINATION. THE CIT THERE FORE HELD THAT THE ORDER OF ASSESSMENT IS ERRONEOUS AND PREJUDICIAL TO THE REVENUE AND SET ASIDE THE ISSUES TO THE FILES OF THE AO FOR REDOING AFRESH AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. THE ASSESSE E IS ON APPEAL THAT THE CIT ERRED IN ASSUMING JURISDICTION U/S 263 AS A LL THE MATERIALS WERE BEFORE THE AO AND IF AT ALL THE AO HAS TAKEN ONE OF THE POSSIBLE VIEW AND HENCE THE ASSESSMENT ORDER CANNOT BE CONSIDERED AS ERRONEOUS AND CIT CANNOT REVISE THE SAME U/S 263. ITA NO. 2983/M/09 2 2. THE FIRST ISSUE IS REGARDING THE CLAIM OF THE AS SESSEE FOR DEDUCTION FOR WAIVER OF ADVANCE DUE FROM MAHINDRA GESCO (RS. 15.11 CR.). THIS AMOUNT WAS NOT DEBITED TO THE P&L ACCOUNT BUT CLAIM ED IN THE MEMO OF INCOME. THE ASSESSEE SUBMITTED THAT THEIR PROPERTY DEVELOPMENT DIVISION WHICH WAS TRANSFERRED TO THEIR SUBSIDIARY VIZ. MAHINDRA REALTY AND INFRASTRUCTURE LTD (MRIDL) WHICH INTER ALIA IN CLUDED PROPERTY DEVELOPMENT RIGHTS IN THE BYCULLA PROPERTY VIZ. LA ND BELONGING TO NEW GREAT EASTERN WEAVING CO LTD ACQUIRED FOR CONSIDER ATION. THEREAFTER THE REALTY DIVISION OF MRIDL WAS DEMERGED INTO MAHINDRA GESCO DEVELOPERS (MGDL). IT WAS THE RESPONSIBILITY OF THE ASSESSEE T O OBTAIN GOVERNMENTAL CLEARANCES IN RESPECT OF THIS PROPERTY. AS IT TOOK A LONG TIME TO GET THE APPROVAL THE COMPANY DECIDED TO WAIVE A SUM OF RS. 15.11 CRORES DUE FROM MGDL. IT IS THE CONTENTION OF THE COMPANY THAT THIS HAS BEEN EARLIER OFFERED AS INCOME AT THE TIME OF TRANSFER O F BUSINESS AND HENCE THIS AMOUNT IS ALLOWABLE UNDER SEC 37/36(1)(VII)/28 . 3. CIT WAS OF THE OPINION THAT THIS AMOUNT HAS NOT BEEN DEBITED TO THE P&L AND HENCE IT IS NOT CLEAR HOW THIS CAN BE S AID TO HAVE BEEN WRITTEN OFF IN THE BOOKS OF ACCOUNTS. THE ASSESSEE SUBMITS THAT THERE IS NO EFFECTIVE DEBIT TO THE P&L ACCOUNT SINCE THE WRI TE OFF TO THE P&L ACCOUNT HAS BEEN OFFSET BY AN EQUAL AMOUNT OF WRITE BACK OF PROVISION FOR DOUBTFUL ADVANCE MADE IN THE EARLIER YEARS. 4. FROM THE ABOVE IT IS VERY CLEAR THAT THE TRANSAC TIONS LEADING TO THE CLAIM ARE MANY AND RELATE TO EARLIER TRANSFERS. THE BACKGROUND OF THE TRANSACTIONS ARE NOT ON RECORD AND HAS NOT BEEN EXA MINED BY THE ASSESSING OFFICER. WHEN AND HOW THIS INCOME WAS OFF ERED (AS CAPITAL GAINS OR BUSINESS INCOME) BY THE ASSESSEE IS NOT CL EAR. AS PER THE ITA NO. 2983/M/09 3 ASSESSEE THIS AMOUNT WAS DUE FROM THE SUBSIDIARY AN D WAS WAIVED DUE TO THE CLAIMS MADE BY THE SUBSIDIARY. THE PARTICULA RS OF THE CLAIMS MADE BY THE SUBSIDIARY ARE NOT ON RECORD. AS REGARDS WRI TE OFF THE CLAIM OF THE ASSESSEE THAT THE WRITE OFF IS OFFSET BY REVERSAL O F PROVISIONS HAS NOT BEEN VERIFIED. FURTHER WHETHER THE PROVISIONS REVERSED W ERE IN THE FIRST PLACE MADE IN CONNECTION WITH THIS AMOUNT DUE FROM SUBSID IARY AND WHEN THESE PROVISIONS WERE MADE HAVE NOT BEEN EXPLAINED OR EXAMINED AT THE TIME OF ASSESSMENT. ADMITTEDLY NO QUERY WAS RAISE D BY THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS ON THIS ISSUE. TH E AO HAS ALLOWED DEDUCTION OF THIS ACCOUNT IN THE COMPUTATION OF INC OME WITHOUT MAKING ANY ENQUIRY INTO BASIC FACTS AND WITHOUT CONSIDERAT ION OF ADMISSIBILITY OF THIS CLAIM UNDER THE ACT. NO EXPLANATION WAS ASKED FROM THE ASSESSEE NOR WAS ANY INFORMATION FURNISHED BY THE ASSESSEE. AS OBSERVED BY THE CIT THE CLAIM WAS ALLOWED WITHOUT MAKING ANY ENQUI RIES AND WITHOUT ANY APPLICATION OF MIND ON PART OF THE AO. THERE I S NO DISCUSSION IN THE ASSESSMENT ORDER AS TO WHY SUCH CLAIM WAS ALLOWED. EVEN THE ASSESSEE IS NOT SURE OF ITS ALLOWABILITY BECAUSE IN GROUND N O. 2 IT HAS CLAIMED THAT THIS WAS ALLOWABLE AS BUSINESS EXPENDITURE/LOSS UN DER SECTIONS 36(1)(VII)/37(1)/ 28 AND/OR OTHER PROVISIONS OF THE I.T. ACT.. THIS ALONE IS ENOUGH TO JUSTIFY EXERCISE OF JURISDICTION OF CI T U/S. 263. PLEA THAT IF TWO VIEWS ARE POSSIBLE AND IF THE ASSESSEE HAS TAKE N ONE POSSIBLE VIEW JURISDICTION U/S 263 DOES NOT LIE IS NOT TENABLE B ECAUSE THERE IS NOTHING ON RECORD TO SHOW THAT AT ANY TIME THE ASSESSING OF FICER HAD EXAMINED THE ISSUE AND HAD TAKEN ONE VIEW. THE FACT THAT THE ASSESSING OFFICER HAD NOT DISCUSSED THE ISSUE IN THE ASSESSMENT ORDER MIG HT NOT BY ITSELF MAKE THE ORDER ERRONEOUS IF THE ASSESSING OFFICER HAD A SKED FOR THE DETAILS EXAMINED THE SAME AND THEN ALLOWED IT WITHOUT ANY R EFERENCE TO IT IN THE ASSESSMENT ORDER. BUT HERE THE ALLOWANCE HAS BEEN M ADE WITHOUT THE ASSESSING OFFICER BEING AWARE OF THE BACKGROUND OF THE MATTER AND WHY THE AMOUNT CAME TO BE WAIVED. THE SUPREME COURT IN THE CASE OF MALABAR INDUSTRIAL CO LTD (243 ITR 83) HAS HELD T HAT IF THE AO HAS NOT ITA NO. 2983/M/09 4 MADE ANY ENQUIRIES IN RESPECT ANY ISSUE THEN TO TH AT EXTENT THE ORDER IS ERRONEOUS. THE ALLOWANCE OF THE CLAIM IF NOT PROPE RLY DONE IS PREJUDICIAL TO THE REVENUE. IN THE CIRCUMSTANCES WE UPHOLD THE ORDER OF THE CIT SETTING ASIDE THIS ISSUE TO THE FILE OF THE AO FOR FURTHER INVESTIGATION. 5. THE NEXT ISSUE IS NON-EXCLUSION OF VARIOUS ITEMS FOR THE PURPOSE OF COMPUTING DEDUCTION U/S. 80HHC OF THE ACT. WHILE P ASSING ORDER ON 18.12.2006 THE AO HAD ASKED FOR PARTICULARS OF SAL ES TAX AND EXCISE DUTY TO BE INCLUDED IN THE TOTAL TURNOVER. BUT HE H AD FAILED TO INVESTIGATE THE APPLICABILITY OF EXPLANATION (BAA) TO SEC 80HHC (4A) WITH REGARD TO THOSE ITEMS OF INCOME. THE AO HAD BEFORE HIM BINDIN G JUDICIAL PRECEDENTS ON THIS ISSUE VIZ. CIT VS K.K. DOSHI (20 00) 245 ITR 849 (BOM) ETC. FAILURE OF THE AO TO EXAMINE THE DIRECT NEXU S OF THESE ITEMS WITH EXPORT ACTIVITIES AND TO SEE WHETHER THESE WERE IN THE NATURE OF OPERATIONAL INCOME IN LIGHT OF DECISION OF THE JURI SDICTIONAL HIGH COURT MAKES THE ORDER OF THE AO ERRONEOUS. PLEA OF TWO VIEW POSSIBLE CANNOT BE ACCEPTED BECAUSE THERE IS NOTHING ON RECORD TO SHOW WHETHER HE HAS CONSIDERED THIS ASPECT AT ALL IN COMPUTING THE DEDU CTION U/S 80HHC AND IN THE LIGHT OF THE RATIO OF THE DECISION OF THE JU RISDICTIONAL HIGH COURT ON THIS ISSUE. WE THEREFORE AGREE WITH THE CIT THAT TH E ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE REVENUE AND WE UPH OLD HIS ACTION IN DIRECTING THE AO TO RECONSIDER THIS ISSUE DE NOVO I N ACCORDANCE WITH THE PROVISIONS OF LAW. RELIANCE IS PLACED ON THE RECEN T DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS DAM ODAR MANGALJI MINING CO. (2010) 326 ITR 437 (BOM) WHEREIN ON IDEN TICAL FACTS RECOURSE TO SEC. 263 WAS UPHELD. 6. THE NEXT ISSUE IS THE DEDUCTION OF CAPITAL LOSS OF RS. 1.36 CRORE ON SALE OF R&D ASSETS. IT IS OBSERVED THAT THE AO WHIL E COMPUTING THE TOTAL ITA NO. 2983/M/09 5 INCOME OF THE ASSESSEE ALLOWED DEDUCTION OF CAPITAL LOSS ON SALE OF ASSETS USED IN ASSESSEES R&D WITHOUT EXAMINING THE APPLI CABILITY OF PROVISIONS OF SEC. 41(3) OF THE ACT. ASSESSEE SUBM ITS THAT SALE PRICE OF ASSETS USED FOR R&D HAS BEEN OFFERED AS PROFITS U/S 41(3) BUT AS THESE ARE CAPITAL ASSETS ON WHICH DEPRECIATION HAS NOT BE EN CLAIMED THE DIFFERENCE BETWEEN THE SALE PRICE AND COST OF ACQUI SITION HAS BEEN CLAIMED AS A CAPITAL LOSS. IT IS NOT CLEAR WHETHER WHEN PROFIT ON SALE OF ASSETS WHOSE COST HAS BEEN ADMITTED U/S 35 HAS BEE N DEALT WITH U/S 41(3) THE SAME TRANSACTION CAN BE CONSIDERED TO RE SULT IN CAPITAL GAINS (LOSS) TRANSACTION U/S 45. WHEN THE SALE CONSIDERAT ION HAS BEEN CONSIDERED AS BUSINESS PROFITS U/S 41(3) CAN THE SA ME BE CONSIDERED AS A CAPITAL RECEIPT FOR THE PURPOSE OF SEC 45. WHETHER THE COST OF ASSET CLAIMED AS A DEDUCTION U/S 35 CAN AGAIN CLAIMED AS DEDUCTION U/S 48 FOR COMPUTATION OF CAPITAL GAINS (LOSS). WILL IT NO T AMOUNT TO DOUBLE DEDUCTION OF THE COST OF ACQUISITION OF THE ASSET? ADMITTEDLY NONE OF THESE MATTERS HAVE BEEN ADDRESSED TO BY THE AO IN T HE COURSE OF HIS ASSESSMENT NOR HAS HE RAISED QUERY OR SOUGHT ANY CL ARIFICATION ON THIS MATTER NOR IS THERE ANY DISCUSSIONS IN THE BODY OF THE ASSESSMENT ORDER. IN OTHER WORDS THE AO HAS NOT EXAMINED THE ISSUE A ND HAD NOT TAKEN ANY VIEW OR CONCLUSIONS IN THIS MATTER. HIS SILENC E CANNOT BE TREATED AS AMOUNTING TO TAKING ONE POSSIBLE VIEW. IN THE CIR CUMSTANCES WE UPHOLD THE ORDER OF THE CIT SETTING ASIDE THE ISSUE OF CLA IMING CAPITAL LOSS OF RS. TO THE FILES OF THE AO FOR FRESH ADJUDICATION. 7. THE NEXT ISSUE IS THE DEDUCTION IN RESPECT OF SP ECIAL PENSION LIABILITY BASED ON ACTUARIAL VALUATION RS. 1.27 CRO RE. UNDER THE SCHEME FORMULATED BY THE COMPANY EMPLOYEES WHO OPTED FOR EARLY RETIREMENT WERE ENTITLED TO PAYMENT OF PENSION EITHER COMMUTE D OR MONTHLY AT THEIR OPTION IN ADDITION TO NORMAL RETIREMENT BENEFITS. THIS AMOUNT IS PAID AS ITA NO. 2983/M/09 6 A LUMPSUM IN RESPECT OF EMPLOYEES WHO OPT FOR VRS IN THE YEAR OF SEPARATION OF THE EMPLOYEE. 8. THE ASSESSEE SUBMITTED DEDUCTION FOR LIABILITY O N ACCOUNT OF PENSION WAS CLAIMED ON THE BASIS OF ACTUARIAL VALUA TION OF LIABILITY FOR PENSION PAYABLE IN FUTURE OVER A PERIOD OF 60 MONTH S SIMILAR CLAIMS HAVE BEEN ALLOWED IN THE PAST AND UPHELD BY THE BOM BAY HIGH COURT IN THE ASSESSEES OWN CASE. IN THE COVERING LETTER TO THE RETURN OF INCOME BASIS OF CLAIM FOR DEDUCTION OF SUCH PENSION AND RE ASONS FOR NON- APPLICABILITY OF S 35DDA WAS CLEARLY SPELT OUT. DED UCTION WAS ALLOWED IN RESPECT OF PROVISION FOR SPECIAL PENSION PAYABLE TO EMPLOYEES UNDERTAKING VOLUNTARY RETIREMENT WITHOUT APPLYING S EC. 35DDA. S 35DDA WAS INTRODUCED ON THE STATUTE BOOK WITH EFFEC T FROM A.Y. 2001- 02. EVEN IN THE POST 35DDA REGIME THE AO HAS BEEN CONSISTENTLY ALLOWING DEDUCTION IN REGULAR ASSESSMENTS. IN VIEW OF THE DETAILED MENTION IN THE COVERING LETTER ALLEGATION OF NON-AP PLICATION OF MIND CANNOT LIE. ALTERNATIVELY THE ISSUE IS A DEBATABLE ONE. THE AO COULD BE SAID TO HAVE TAKEN A POSSIBLE VIEW WHICH CANNOT BE SUBSTITUTED BY THE CIT BY HIS OWN VIEWS. 9. IT IS OBSERVED THAT THE AO WHILE COMPUTING THE T OTAL INCOME OF THE ASSESSEE HAS ALLOWED THIS DEDUCTION WITHOUT CONSIDE RING THE APPLICABILITY OF PROVISIONS OF SEC. 35DDA ESPECIALLY WHEN THE AS SESSEE HAD CLAIMED THAT SEC. 35DDA WAS NOT APPLICABLE IN ITS CASE. WHE N SECTION 35DDA HAS BEEN INTRODUCED SPECIFICALLY TO ALLOW VRS PAYMENTS SPREAD OVER FIVE ASSESSMENT YEARS THE AO SHOULD HAVE LOOKED INTO TH E ALLOWABILITY OF THIS CLAIM AFTER CONSIDERING WHETHER THE PROVISIONS OF S EC 35DDA ARE APPLICABLE OR NOT. NON CONSIDERATION OF THE APPLIC ABILITY OF A PROVISION OF LAW IS AN ERROR. THERE IS NO DISCUSSION IN THE ORDE R AS TO WHY THE AO CONSIDERS IT TO BE AN ALLOWABLE DEDUCTION. MERELY B ECAUSE SIMILAR CLAIMS HAS BEEN ALLOWED IN THE PREVIOUS YEAR DOES NOT PREV ENT EXAMINATION OF ITA NO. 2983/M/09 7 THE ISSUE AFRESH PARTICULARLY THERE DOES NOT SEEM TO BE ANY ENQUIRY OF THIS MATTER WITH SPECIFIC REFERENCE TO THE APPLICAB ILITY OF PROVISIONS OF SEC 35DDA. WE ARE UNABLE TO SUBSCRIBE TO THE ASSESSEES CONTENTION THAT THE AO HAS TAKEN ONE OF THE TWO POSSIBLE VIEWS. IN THE CIRCUMSTANCES WE UPHOLD THE ORDER OF THE CIT SETTING ASIDE THE ISSUE OF CLAIMING DEDUCTION OF RS. 1.27 CRORES AS SPECIAL PENSION LIABILITY TO THE FILES OF THE AO FOR FRESH ADJUDICATION. 10. RELIANCE IS PLACED ON THE DECISION OF HONBLE A LLAHABAD HIGH COURT IN THE CASE OF EMA INDIA LTD. VS CCIT 226 CTR (ALLA H.) 659 WHERE IN IT WAS HELD THAT IN CASE THE ASSESSMENT ORDER DOES NOT CONTAIN ANY DISCUSSION ON A PARTICULAR ISSUE THE SAME MAY BE H ELD TO HAVE BEEN RENDERED WITHOUT ANY APPLICATION OF MIND. ALTHOUGH THE SAID DECISION WAS RENDERED IN THE CONTEXT OF PROVISIONS OF SEC. 1 47 IT WILL APPLY WITH EQUAL FORCE IN CASE OF AN ERRONEOUS ORDER WHICH IS THE SUBJECT MATTER OF REVISION U/S. 263 OF THE ACT. 11. THE NEXT ISSUE IS REGARDING UNUTILISED CENVAT B ALANCE. THE CIT HAS NOTED THAT UNUTILIZED CENVAT CREDIT OUGHT TO HA VE BEEN ADDED TO CLOSING STOCK AS PER PROVISIONS OF SEC 145A. IN ANY EVENT AS THE AO HAD NOT EXAMINED THE ISSUE THE ASSESSMENT ORDER IS ERRO NEOUS AND THEREFORE DIRECTED THE AO TO CONSIDER THE ISSUE AFRESH IN ACC ORDANCE WITH LAW. 12. THE ASSESSEE SUBMITTED THAT SUCH UNUTILIZED CEN VAT CREDIT IS A DEBIT BALANCE AND DOES NOT REPRESENT INCOME AS HAS BEEN BY THE BOMBAY TRIBUNAL IN THE CASE OF HAWKINS COOKERS LTD.((2008) 14 DTR 206 MUM TRIB) THE NIL IMPACT ON INCOME OF THE SEC. 145A WAS CERTIFIED BY THE TAX AUDIT REPORT WHICH FORMED PART OF THE RETURN OF INC OME. NO ADDITIONS WERE MADE U/S. 145A IN THE PAST IN THE LIGHT OF THI S CERTIFICATION BY THE TAX AUDITORS. ITA NO. 2983/M/09 8 13. THE MUMBAI TRIBUNAL IN THE CASE OF GHARDA CHEM ICALS LTD V DCIT 130 TTJ 556) HAS HELD THAT AS PER THE PROVISIONS O F SEC 145A THE CLOSING STOCK SHOULD BE VALUED BY INCLUDING UNUTILI ZED MODVAT. AS ALSO THE OPENING STOCK WITH THE UNUTILIZED MODVAT CREDIT AS AT THE CLOSE OF THE EARLIER YEAR. THE MUMBAI TRIBUNAL IN THE CASE OF HA WKINS COOKERS LTD SUPRA HAS LAID DOWN CERTAIN PRINCIPLES IN THIS REGARD BU T HAD SET IT ASIDE TO THE FILE OF THE AO FOR VERIFICATION. THE AO HAS NOT EXAMINED THE ISSUE FROM THIS ANGLE AND HE SHOULD NOT HAVE ACCEPTED THE CLAIM OF THE ASSESSEE WITHOUT VERIFICATION. AO HAS NOT RECORDED ANY FINDING ON THIS ISSUE. HIS SILENCE IS DIFFERENT FROM TAKING A POS SIBLE VIEW. IN RESPECT OF THIS ISSUE ALSO WE AGREE WITH THE CIT THAT THE ASSE SSING OFFICER HAD NOT EXAMINED THE ISSUE AT ALL AND HENCE THE CIT WAS RIG HT IN SETTING THIS ISSUE TO THE FILES OF THE AO TO REDO IT IN ACCORDIN G WITH LAW. 14. THUS WE FIND FROM THE RECORDS THAT IN RESPECT O F ALL THE ISSUES THE AO HAS NOT CALLED FOR ANY EXPLANATION NOR IS THERE ANY EVIDENCE TO SHOW THAT HE HAD APPLIED HIS MIND AND COME TO THE CONCLU SION TO ACCEPT THE CLAIM OF THE ASSESSEE. IN ALL THE ISSUES IT CANNOT BE SAID THAT THERE ARE TWO VIEWS POSSIBLE AND ON APPLICATION OF MIND THE A O HAS TAKEN ONE POSSIBLE VIEW. AS HELD BY THE APEX COURT IN THE CA SE OF MALABAR INDUSTRIAL CO LTD (243 ITR 83) IF THERE WAS NO MAT ERIAL TO SUPPORT THE CLAIM OF THE ASSESSEE AND THE AO ACCEPTED THE CLAIM OF THE ASSESSEE WITHOUT ANY ENQUIRY AND THE EXERCISE OF JURISDICTI ON BY THE CIT U/S 263 IS JUSTIFIED. RESPECTFULLY APPLYING THE RATIO OF TH E DECISION OF THE APEX COURT IN THE ABOVE CASE WE AGREE WITH AND UPHOLD TH E ORDER OF THE CIT SETTING ASIDE THE SPECIFIC ISSUES TO THE FILES OF T HE AO FOR REDOING THE SAME IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE TO SUBMIT THEIR CASE. THE AO SHALL CONSIDE R ALL THE SUBMISSIONS AND OBJECTIONS RAISED BY THE ASSESSEE AND DEAL WITH THEM WHILE REDOING THE ASSESSMENT. ITA NO. 2983/M/09 9 15. SUBJECT TO THE ABOVE DIRECTIONS THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 31 ST DAY OF MARCH 2011 SD/- SD/- (R.K. PANDA) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 31 ST MARCH 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR I BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR I.T.A.T MUMBAI ITA NO. 2983/M/09 10 DATE INITIALS 1 DRAFT DICTATED ON: 25 . 0 3 .201 1 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 2 8 .0 3 .2011 ______ SR. PS/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. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10 . DATE OF DISPATCH OF ORDER: _________ ______