National Dairy Development Board, Anand v. The Addln.CIT.,Anand Circle,, Anand

ITA 3200/AHD/2010 | 2004-2005
Pronouncement Date: 26-07-2013 | Result: Partly Allowed

Appeal Details

RSA Number 320020514 RSA 2010
Assessee PAN AABCN2029C
Bench Ahmedabad
Appeal Number ITA 3200/AHD/2010
Duration Of Justice 2 year(s) 7 month(s) 24 day(s)
Appellant National Dairy Development Board, Anand
Respondent The Addln.CIT.,Anand Circle,, Anand
Appeal Type Income Tax Appeal
Pronouncement Date 26-07-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 26-07-2013
Date Of Final Hearing 28-06-2013
Next Hearing Date 28-06-2013
Assessment Year 2004-2005
Appeal Filed On 02-12-2010
Judgment Text
B IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH . .. . . .. . !' !' !' !' #$ #$ #$ #$ # ## #. .. .% %% % . .. .&'( &'( &'( &'( %) * %) * %) * %) * % ' % ' % ' % ' BEFORE S/SHRI G.C. GUPTA VICE-PRESIDENT AND A. K. GARODIA ACCOUNTANT MEMBER) ITA NO.3200 AND 3201/AHD/2010 [ASSTT.YEAR : 2004-2005 AND 2007-2008] NATIONAL DAIRY DEVELOPMENT BOARD ANAND 388 001. PAN : AABCN 2029 C /VS. ACIT ANAND CIRCLE ANAND. ITA NO.3205 AND 3206/AHD/2010 [ASSTT.YEAR : 2004-2005 AND 2007-2008] ACIT ANAND CIRCLE ANAND. /VS. NATIONAL DAIRY DEVELOPMENT BOARD ANAND 388 001. ( (( ( - - - - / APPELLANT) ( (( (./ - ./ - ./ - ./ - / RESPONDENT) 01 2 3 %/ ASSESSEE BY : SHRI S.N. SOPARKAR AND SHRI YOGESH C. SHAH * 2 3 %/ REVENUE BY : SHRI BHUPENDRAKUMAR SINGH CIT-DR 5 2 16)/ DATE OF HEARING : 28 TH JUNE 2013 7&8 2 16)/ DATE OF PRONOUNCEMENT : 26-07-2013 %9 / O R D E R PER GARODIA ACCOUNTANT MEMBER: THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE FOR TWO DIFFERENT ASSESSMENT YEARS I.E. ASSTT.YEAR 2004-05 AND 2007-2008 AND THESE APPEALS ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF THE LEARNED CIT(A)-IV BAROD A DATED 30.9.2010. SINCE SOME COMMON ISSUES ARE INVOLVED ALL THESE AP PEALS WERE HEARD ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -2- TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP THE APPEAL FILED BY THE ASSESSE E FOR A.Y.2004-2005 I.E. 3200/AHD/2010. THE GROUND NO.1 IS GENERAL IN NATURE. THE GROUND NO.2 IS AS UNDER: 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN UPHOLDING THE ORDER OF ASSESSING OFFICER P ASSED U/S 147 WHICH WAS BASED ON CHANGE OF OPINION AND THAT IS NO T PERMISSIBLE UNDER THE INCOME TAX ACT. THE COMMISSIONER OF INCOM E TAX (APPEALS) SHOULD HAVE QUASHED THE ORDER OF ASSESSIN G OFFICER CONSIDERING THE SAME AS VOID AB INITIO. IT IS SUBMI TTED THAT IT BE HELD NOW. 2.1 THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN UPHOLDING THE CONTENTION OF THE ASSESSING OFFICER OF REOPENING THE ASSESSMENT WITHOUT ANY TANGIBLE MATER IAL TO COME TO CONCLUSION THAT THERE WAS AN ESCAPEMENT OF INCOME F ROM ASSESSMENT. 2.2 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN RELYING ON SUPREME COURT'S DECISION IN THE CASE OF ACIT V. RAJESH JHAVERI STOCK BROKERS (P.) LTD REPORTED IN 291 ITR 500 WHICH IS NOT APPLICABLE TO THE FACTS OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED IN CONFIRMING THE DISALLOWANCE RS.2 39 42 883/- BY APPLYING SECTION 14A. IN THE FACTS AND CIRCUMSTANCES OF THE CASE IT IS SUBMITTED THAT NO DISALLOWANCE UNDER SECTION 14A IS REQUIRED TO BE MADE. IT IS SUBMITTED THAT IT BE SO HELD NOW. 3.1 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN NOT APPRECIATING THE FACT THAT SECTION 14A IS NO T APPLICABLE TO THE APPELLANT AS THE INVESTMENTS IN SECURITIES YIELDIN G TAX FREE INCOME WERE MADE FROM OWN FUNDS OF THE APPELLANT AND NO EX PENSES ARE INCURRED IN RELATION TO EARN THE EXEMPT INCOME. 3.2 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF 0 5% OF AVERAGE V ALUE OF ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -3- INVESTMENT AS EXPENDITURE ATTRIBUTABLE TO EARNING O F TAX FREE INCOME CONSIDERING THE SAME AS REASONABLE IN THE FACTS OF THE CASE. 3.3 ALTERNATIVELY THE DISALLOWANCE SHOULD BE RESTR ICTED TO RS.23 000/- WHICH MAY BE CONSIDERED TO BE ATTRIBUTA BLE TO CARE EXEMPT INCOME. IT IS SUBMITTED THAT IT BE SO HELD N OW. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING IN CHARGING INTEREST UNDER SECTION 234A 234B AND RECOVERING INTEREST UNDER SECTION 244A. 3. IT WAS SUBMITTED BY THE LEARNED AR THAT ADMITTED LY THE ASSESSMENT WAS REOPENED WITHIN FOUR YEARS TO DISALLOW SOME EXP ENSES STATED TO BE INCURRED FOR EARNING EXEMPT INCOME UNDER SECTION 14 A. IN THIS REGARD IT WAS SUBMITTED THAT THE EXEMPT DIVIDEND AND INTEREST INCOME WAS SHOWN SEPARATELY IN THE COMPUTATION OF TOTAL INCOME AND N OTES TO THE RETURN OF INCOME. HE ALSO SUBMITTED THAT IN ORIGINAL ASSESSM ENT INFORMATION WAS SOUGHT ABOUT EXEMPT INCOME AND NO EXPENSES WAS DISA LLOWED WHILE COMPLETING THE ASSESSMENT. HE ALSO SUBMITTED THAT THERE WERE NO NEW MATERIAL BEFORE THE AO AND THE REOPENING WAS BASED ON MERE CHANGE OF OPINION AND THEREFORE REOPENING IS NOT JUSTIFIED. HE PLACED RELIANCE ON THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT REND ERED IN THE CASE OF GUJARAT POWER CORPORATION LTD. 26 TAXMANN.COM 51 ( GUJ). HE ALSO SUBMITTED THAT LEARNED CIT(A) HAS PLACED RELIANCE O N THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKERS P. LTD. 291 ITR 500. BUT THIS JUDGM ENT IS NOT APPLICABLE IN THE FACTS OF PRESENT CASE. THE LD.DR OF THE REV ENUE SUPPORTED THE ORDER OF THE LD.CIT(A). 4. WE HAVE CONSIDERED RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW AND JUDGMENTS CITED BY LEARNED AR OF THE ASSESSEE. WE FIND THAT REASONS ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -4- RECORDED BY THE AO FOR REOPENING ARE AVAILABLE AT P AGES 12 AND 13 OF THE PAPER BOOK. IN THE REASONS IT IS NOTED BY THE AO THAT THE ORIGINAL ASSESSMENT WAS COMPLETE UNDER SECTION 143(3) OF THE I.T.ACT. ON 28/12/2006. HE HAS ALSO NOTED THAT ON GOING THROUG H THE PROFIT &LOSS ACCOUNT IT IS SEEN THAT THE ASSESSEE HAS SHOWN INC OME FROM DIVIDEND OF RS.115.72 LAKHS BUT WHILE COMPUTING THE TAXABLE IN COME THE ASSESSEE HAS DEDUCTED SUCH DIVIDEND AS EXEMPT AND THIS CLAI M OF THE ASSESSEE WAS ACCORDINGLY ALLOWED BY THE AO. HE HAS FURTHER NOTE D THAT AS PER THE PROVISIONS OF SECTION 14A OF THE I.T.ACT FOR THE P URPOSE OF COMPUTING TOTAL INCOME NO DEDUCTION SHALL BE ALLOWED IN RESP ECT OF THE EXPENDITURE INCURRED BY THE ASSESSEE IN RELATION TO THE INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME. THEREAFTER HE HAD NOTED THAT THE ASSESSEE WAS ALLOWED DEDUCTION OF TOTAL DIVIDEND INCOME OF RS.11 5.72 LAKHS AS EXEMPT INCOME BUT IN VIEW OF PROVISION OF SECTION 14A OF THE ACT THE EXPENSES INCURRED FOR EARNING THE DIVIDEND INCOME ARE TO BE DISALLOWED AND ADDED TO THE TOTAL INCOME AND WHILE COMPUTING THE TAXABL E INCOME SUCH EXPENDITURE WAS NOT ADDED BACK IN THE TOTAL INCOME. THEREAFTER HE HAS GIVEN A FINDING THAT SINCE THE EXPENDITURE INCURRED FOR EARNING THE EXEMPT INCOME I.E. DIVIDEND INCOME IS NOT DISALLOWED WHIL E COMPUTING TAXABLE INCOME HE HAS REASON TO BELIEVE THAT INCOME CHARGE ABLE TO TAX HAS ESCAPED ASSESSMENT FOR THIS YEAR. FROM THESE REASO NS RECORDED BY THE AO IT SHOWS THAT THE REASONS GIVEN BY THE AO WERE VAGUE AND EVEN THERE IS NO MENTION THAT ANY EXPENSES WAS INCURRED BY THE ASSESSEE FOR EARNING THE DIVIDEND INCOME. THIS IS ALSO A FACT T HAT REASONS ARE RECORDED BY THE AO ON THE BASIS OF PROFIT AND LOSS ACCOUNT WHICH WAS FILED BEFORE THE AO AT THE TIME OF ORIGINAL ASSESSMENT ALSO AND NO NEW MATERIAL IS AVAILABLE BEFORE THE AO AS PER THE REASONS RECORDED BY THE AO. NOW IN THE LIGHT OF THESE FACTS WE EXAMINE THE APPLICABIL ITY OF JUDGMENT OF THE ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -5- HONBLE APEX COURT RENDERED IN THE CASE OF COMMISSI ONER OF INCOME-TAX V. KELVINATOR OF INDIA LTD. 320 ITR 561 AS PER WH ICH THE HONBLE APEX COURT CONFIRMED THE JUDGMENT OF THE HONBLE DELHI H IGH COURT RENDERED IN THE SAME CASE AS REPORTED IN 256 ITR 1 IN CIT V S. KELVINATOR INDIA LTD. IT WAS OBSERVED BY THE HONBLE DELHI HIGH COU RT IN PARA 23 OF THIS JUDGMENT THAT WHEN A REGULAR ORDER OF THE ASSESSME NT IS PASSED IN TERMS OF SECTION 143(3) OF THE ACT A PRESUMPTION CAN BE RAISED THAT SUCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND. IT W AS ALSO OBSERVED THAT IF IT IS HELD THAT AN ORDER WHICH HAS BEEN PASSED PURP ORTEDLY WITHOUT APPLICATION OF MIND WOULD ITSELF CONFER JURISDICTIO N UPON THE ASSESSING OFFICER TO REOPEN THE PROCEEDING WITHOUT ANYTHING F URTHER THE SAME WOULD AMOUNT TO GIVING A PREMIUM TO AN AUTHORITY EX ERCISING QUASI JUDICIAL FUNCTION TO TAKE BENEFIT OF ITS OWN WRONG. ON THE BASIS OF THIS REASONING IT WAS HELD BY THE HONBLE DELHI HIGH CO URT THAT THE REASSESSMENT IN THIS CASE WAS NOT VALID. THIS JUDG MENT OF THE HONBLE DELHI HIGH COURT HAS BEEN UPHELD BY THE HONBLE APE X COURT. IN THE PRESENT CASE ALSO THE AO HAS RECORDED REASONS FOR REOPENING ON THE BASIS OF PROFIT & LOSS ACCOUNT ITSELF WHICH WAS VERY MUC H BEFORE THE AO AT THE TIME OF REGULAR ASSESSMENT ALSO. IF HE HAS NOT GON E THROUGH THE SAME AT THE TIME OF REGULAR ASSESSMENT THEN IT IS A MISTAK E COMMITTED BY THE AO HIMSELF AND AS PER THE JUDGMENT OF THE HONBLE DEL HI HIGH COURT THE AO CANNOT BE ALLOWED TO TAKE THE BENEFIT OF HIS OWN MISTAKE AND THE ASSESSEE CANNOT BE SUBJECTED TO THE PROCEEDING OF R EASSESSMENT BECAUSE OF FAILURE ON THE PART OF THE AO TO TAKE NOTE OF EX EMPT DIVIDEND INCOME AS PER THE PROFIT & AND LOSS ACCOUNT WHICH WAS VER Y MUCH AVAILABLE BEFORE THE AO AT THE TIME OF ORIGINAL ASSESSMENT. IN OUR CONSIDERED OPINION THIS ISSUE IN THE PRESENT CASE REGARDING R EOPENING IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THIS JUDGMENT OF THE HONBLE DELHI ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -6- HIGH COURT RENDERED IN THE CASE OF CIT VS. KELVINAT OR INDIA LTD. (SUPRA) WHICH WAS DULY APPROVED BY THE HONBLE APEX COURT AND RESPECTFULLY FOLLOWING THE SAME WE HOLD THAT IN THE FACTS OF TH E PRESENT CASE REOPENING IS NOT VALID AND SAME IS HEREBY QUASHED. THE GROUND NO.2 IS ALLOWED. 5. IN VIEW OF OUR DECISION REGARDING GROUND NO.2 T HE REMAINING GROUNDS RAISED BY THE ASSESSEE ON MERIT DO NOT CAL L FOR ANY ADJUDICATION. 6. IN THE RESULT APPEAL OF THE ASSESSEE STANDS ALL OWED. 7. NOW WE TAKE UP THE APPEAL OF THE REVENUE FOR TH E SAME ASSESSMENT YEAR I.E. 3205/AHD/2010. 8. WE FIND THAT THIS APPEAL HAS ARISEN OUT OF THE R EASSESSMENT ORDER PASSED BY THE AO UNDER SECTION 143(3) R.W.S 147 OF THE I.T. ACT DATED 29.12.2002. WHILE DECIDING THE APPEAL FILED BY THE ASSESSEE WE HAVE ALREADY HELD IN PARA-4 THAT THE REOPENING IS NOT VA LID AND WE HAVE QUASHED THE ASSESSMENT. SINCE THE ASSESSMENT ORDER PASSED BY THE AO IN REASSESSMENT PROCEEDING ITSELF IS QUASHED BY US TH E APPEAL FILED BY THE REVENUE DOES NOT SURVIVE BECAUSE IT HAS BECOME RED UNDANT. 9. IN THE RESULT THE REVENUES APPEAL IS DISMISSED . 10. NOW WE TAKE UP THE APPEAL FILED BY THE ASSESSEE FOR A.Y.2007- 2008 I.E. 3201/AHD/2010. 11. THE GROUND NO.1 IS GENERAL. THE GROUND NO.2 IS AS UNDER: 2. THE LD.CIT(A) AHS ERRED IN DISALLOWING THE APPE LLANTS CLAIM FOR DEDUCTION U/S.36(1)(VIII) OF RS.5 19 27 872/- F OLLOWING ITATS ORDER FOR A.Y.2003-04. IT IS SUBMITTED THAT THE AP PELLANT HAS ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -7- SATISFIED NECESSARY CONDITIONS AND LD.CIT(A) OUGHT TO HAVE ALLOWED THE DEDUCTION AS CLAIMED. IT IS SUBMITTED THAT IT BE SO HELD NOW. 12. IT WAS FAIRLY CONCEDED BY THE LEARNED AR OF THE ASSESSEE THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE TRIBUN AL ORDER IN ASSESSEES OWN CASE FOR A.Y.2003-2004 TO 2006-2007. ACCORDING LY THIS GROUND OF THE ASSESSEE IS REJECTED. 13. THE GROUND NO.3 OF THE ASSESSEE IS AS UNDER: 3. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE DISAL LOWANCE RS.2 91 91 481/- BY APPLYING SECTION 14A. IN THE F ACTS AND CIRCUMSTANCES OF THE CASE IT IS SUBMITTED THAT NO D ISALLOWANCE UNDER SECTION 14A IS REQUIRED TO BE MADE. IT IS SU BMITTED THAT IT BE SO HELD NOW. 14. IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSES SEE THAT RULE 8D IS NOT APPLICABLE IN THE PRESENT CASE AS THE SAME WAS INTRODUCED FROM A.Y.2008-2009 AND IT HAS BEEN HELD BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GODREJ AND BOYCE MFG. CO. LTD. V. DE PUTY COMMISSIONER OF INCOME-TAX 328 ITR 81 (BOM) THAT RULE 8D IS PRO SPECTIVE AND NOT RETROSPECTIVE IN NATURE. HE ALSO SUBMITTED THAT UN DER THE SAME FACTS THE TRIBUNAL VIDE ITS ORDER DATED 7.6.2011 FOR A.Y.2006 -2007 HAS RESTORED THE MATTER BACK TO THE FILE OF THE AO FOR RE-ADJUDICATI ON. IT IS ALSO SUBMITTED THAT IT IS ALSO HELD BY THE TRIBUNAL THAT THE TRIBU NAL DECISION RENDERED IN THE CASE OF DAGA CAPITAL MANAGEMENT P. LTD. (MUM) IS NOT RELEVANT IN THE PRESENT CASE. HE SUBMITTED THAT THIS ORDER OF THE TRIBUNAL IS AVAILABLE AT PAGE NO.64 TO 83 OF THE PAPER BOOK NO.2. ACCO RDINGLY IN THE PRESENT CASE ALSO WE SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR FRESH DEC ISION WITH SIMILAR DIRECTIONS AS WERE GIVEN BY THE TRIBUNAL FOR A.Y.2 006-2007. THIS GROUND OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURP OSE. ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -8- 15. THE GROUND NO.4 OF THE ASSESSEE IS AS UNDER: 4. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE DISAL LOWANCE OF GRANT OF RS.78 88 592/- GIVEN TO VARIOUS COOPERATIV E SOCIETIES AND OTHER ORGANIZATIONS AS DEDUCTIBLE EXPENDITURE U/S.3 6(1)(XII) OF THE IT ACT. IT IS SUBMITTED THAT THE AMOUNT REPRESENTS AN EXPENDITURE INCURRED BY THE APPELLANT FOR THE PURPOSE OF OBJECT S OF THE APPELLANT AND THEREBY FULFILLS ALL CONDITIONS OF SE CTION 36(1)(XII) OF THE IT ACT AND ACCORDINGLY IT IS ENTITLED TO DEDUCT ION U/S.36(1)(XII). IT IS SUBMITTED THAT IT BE SO HELD NOW. 16. IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSES SEE THAT IN A.Y.2003-2004 THE TRIBUNAL HAD RECALLED THE EARLIE R ORDER AND IT WAS HELD THAT THE GRANT IS ALLOWABLE AS AN EXPENDITURE UNDER SECTION 36(1)(XII) OF THE ACT AND THE MATTER WAS SENT BACK TO THE AO FOR VERIFICATION (I) WHETHER THE ALLEGED NON-REFUNDABLE GRANTS ARE GIVEN FROM GRANTS RECEIVED OR NOT AND (II) NON-REFUNDABLE GRANTS SANCTIONED ARE CLAIMED AS DEDUCTION ONLY WHEN FUND ARE ALREADY UTILISED/ FUND UTILISATION REPORT ARE RECEIVED. HE ALSO SUBMITTED THAT UNDER SIMILAR FAC TS IN A.Y.2004-05 2005-2006 AND 2006-2007 THE TRIBUNAL HAS RESTORED BACK THE MATTER TO THE FILE OF THE AO FOR READJUDICATION. ACCORDINGLY IN THE PRESENT YEAR ALSO WE SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND RESTORE THIS MATTER BACK TO THE FILE OF THE AO FOR FRESH DECISIO N WITH SIMILAR DIRECTIONS AS HAS BEEN GIVEN BY THE TRIBUNAL FOR A .Y.2004-05 2005-2006 AND 2006-2007. THIS GROUND OF THE APPEAL IS ALLOWE D FOR STATISTICAL PURPOSE. 17. THE GROUND NO.5 IS AS UNDER: 5. THE LD.CIT(A) HAS ERRED IN CONFIRMING THE GRANT OF DEPRECIATION ON RAIL MIL TANKERS @ 15% CONSIDERING THE SAME AS PLANT & MACHINERY. THE APPELLANT HAS GIVEN THE RAI L MILK TANKER ON HIRE AND HAS ACCORDINGLY CLAIMED DEPRECIATION AT 30 % AS PER ENTRY IN APPENDIX I AT PART A (III)(3)(II) TO THE IT RULE S 1962. IT IS SUBMITTED THAT IT BE SO HELD NOW. ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -9- 18. THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE AS SESSEE IS ENGAGED IN THE BUSINESS OF LEASING AND HAD GIVEN RAIL MILK TAN KER ON HIRE AND CLAIMED DEPRECIATION AT 30%. HE ALSO SUBMITTED THAT THE AO CONSIDERED THE SAME AS PLANT & MACHINERY AND RESTRICTED THE DEPRECIATIO N CLAIM TO THE EXTENT OF 15%. HE ALSO SUBMITTED THAT IT WAS HELD BY THE CIT (A) THAT RAIL MILK TANKER WAS NEITHER MOTOR BUS NOR MOTOR TAXI AND HE NCE WOULD BE CLASSIFIED AS PLANT AND MACHINERY. HE PLACED RELIA NCE ON THE JUDGMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF C IT VS. MADAN & CO. 254 ITR 445 AND DELHI HIGH COURT RENDERED IN T HE CASE OF CIT VS. BANSAL CREDITS LTD. 259 ITR 69. HE ALSO PLACED RE LIANCE ON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF BHAGWATI APPLIANCE VS. CIT 199 TAXMAAN 131 (GUJ). THE L EARNED DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 19. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE FIND THAT THE CLAIM OF THE ASSESSEE IS THIS THAT RAIL MILK TANKER LEASED B Y THE ASSESSEE IS AKIN TO MOTOR BUS OR MOTOR TAXI AND THEREFORE THE SAME IS ELIGIBLE FOR DEPRECIATION AT THE RATE OF 30%. WE DO NOT FIND AN Y MERIT IN THIS CONTENTION OF THE ASSESSEE BECAUSE THE DEPRECIATI ON RATE OF 30% IS ALLOWABLE IN THE CASE OF MOTOR TAXI AND MOTOR BUS BUT ADMITTEDLY IN THE PRESENT CASE THE RAIL MILK TANKER CANNOT MOVE OF I TS OWN AND HENCE THE SAME CANNOT BE CLASSIFIED AS MOTOR BUS OR MOTOR TAX I AND THEREFORE THE SAME IS NOT ELIGIBLE FOR DEPRECIATION AT THE RATE O F 30% AND THE AO HAS RIGHTLY ALLOWED THE DEPRECIATION AT THE RATE OF 15% BY TREATING THE SAME AS PLANT & MACHINERY. REGARDING RELIANCE PLACED ON VARIOUS JUDGMENTS OF VARIOUS HIGH COURTS INCLUDING THAT OF HONBLE GU JARAT HIGH COURT WE FIND THAT THE FACTS IN THESE CASES ARE DIFFERENT A ND THEREFORE THESE ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -10- JUDGMENTS DO NOT RENDER ANY HELP TO THE ASSESSEE IN THE PRESENT CASE. THIS GROUND OF THE ASSESSEE IS REJECTED. 20. THE GROUND NO.6 OF THE ASSESSEE IS AS UNDER: 6. THE LD.CIT(A) HAS ERRED IN CONFIRMING DISALLOWA NCE OF EXPENSES AMOUNTING TO RS.4 23 75 516/- PERTAINING T O JUNAGADH AND SAFAL WHICH WERE CLAIMED AS PER SECTION 40(A)( IA) OF THE IT ACT. IT IS SUBMITTED THAT THE APPELLANT AHS PAID T DS IN RESPECT OF BOTH THE ABOVE DURING THE YEAR UNDER CONSIDERATION AND IS THUS ENTITLED TO DEDUCTION OF THE SAID EXPENSES U/S.40(A )(IA). IT BE SO HELD NOW. 21. IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSES SEE THAT IN A.Y.2006-2007 THE ASSESSEE MADE PROVISION FOR PAYM ENT TO CONTRACTORS AND PROFESSIONALS IN RESPECT OF ITS TWO UNITS SAFA L MARKET-BENGALURU AND JUNAGADH DAIRY ON WHICH TDS WAS NOT DEDUCTED/DEDUC TED BUT NOT PAID AND ACCORDINGLY THE EXPENSES WAS DISALLOWED IN THE RETURN OF INCOME UNDER SECTION 40(A)(IA) OF THE ACT IN THAT YEAR. H E ALSO SUBMITTED THAT THE ASSESSMENT WAS COMPLETED FOR A.Y.2006-2007 BY MAKIN G DISALLOWANCE. HE ALSO SUBMITTED THAT SUBSEQUENTLY TDS ON THESE A MOUNT WERE PAID IN JUNE 2006/DECEMBER 2006 AND ASSESSEE CLAIMED DEDUC TION OF EXPENSES IN THE PRESENT YEAR I.E. A.Y.2007-2008 AS PER THE PROVISO TO SECTION 40(A)(IA) OF THE ACT. HE ALSO SUBMITTED THAT IN TH E PRESENT YEAR BOTH THE UNITS WERE TRANSFERRED BY THE ASSESSEE TO ITS SUBSI DIARY COMPANY. BUT HE SUBMITTED THAT SINCE THESE EXPENSES WERE DISALLOWED IN EARLIER YEAR UNDER SECTION 40(A)(IA) OF THE ACT THE SAME ARE ELIGIBLE IN THE PRESENT YEAR ON PAYMENT OF TDS AS PER PROVISO TO SECTION 40(A)(IA) OF THE ACT. HE ALSO SUBMITTED THAT AT PAGE NOS.90 AND 91 OF THE PAPER B OOK ARE THE DETAILED SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE AO ON T HIS ISSUE. AS AGAINST THIS THE LEARNED DR OF THE REVENUE SUPPORT ED THE ORDER OF THE LOWER AUTHORITIES. ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -11- 22. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORIT IES BELOW. WE FIND THAT THE CLAIM OF THE ASSESSEE HAS BEEN REJECTED BY THE CIT(A) ON THIS BASIS THAT SINCE THE BUSINESS OF THESE TWO UNITS WA S TRANSFERRED BY THE ASSESSEE TO MOTHER DIARY W.E.F. 1-4-2006 THE EXPEN SES OF THESE TWO UNITS CANNOT BE CLAIMED BY THE ASSESSEE AFTER 1.4.2006 A ND THEREFORE THE PROVISO TO SECTION 40(A)(IA) IS NOT APPLICABLE. IN OUR CONSIDERED OPINION THIS OBSERVATION OF THE CIT(A) IS NOT VALID. AS PE R THE PROVISO TO SECTION 40(A)(IA) OF THE ACT IF THE TAX HAS BEEN DEDUCTED IN A SUBSEQUENT YEAR OR IF ALREADY DEDUCTED IN THE EARLIER YEAR HAS BEEN P AID AFTER THE DUE DATE SPECIFIED IN SECTION 139(1) SUCH SUM SHALL BE ALLO WED AS DEDUCTION IN COMPUTING THE INCOME OF THE PREVIOUS YEAR IN WHICH SUCH TAX HAS BEEN PAID. AS PER THE PROVISIONS OF THIS PROVISO WE FI ND THAT ONLY REQUIREMENT OF THIS PROVISO IS THIS THAT THE TDS HAS BEEN DEDUC TED AND PAID IN RESPECT OF ANY DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT FOR BEING ELIGIBLE FOR DEDUCTION IN SUBSEQUENT YEAR. THIS RE QUIREMENT IS SATISFIED BY THE ASSESSEE IN THE PRESENT CASE BUT THE LEARNED C IT(A) HAS PUT ONE MORE CONDITION THAT UNIT FOR WHICH THIS EXPENDITURE WAS INCURRED IS NOT BEING OWNED BY THE ASSESSEE IN THE PRESENT YEAR IN WHICH THE PAYMENT OF TDS WAS MADE. IN OUR CONSIDERED OPINION SUCH EXTRA CO NDITION PUT BY THE LEARNED CIT(A) IS NOT JUSTIFIED AND THEREFORE THE DISALLOWANCE MADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(A) IS WITHO UT ANY BASIS. WE ALSO FIND THAT ONE MORE REASONING IS GIVEN BY THE L EARNED CIT(A) FOR CONFIRMING THIS DISALLOWANCE THAT THIS WAS A CONTIN GENT LIABILITY IN THE YEAR IN WHICH THE SAME WAS INCURRED AND THEREFORE IT WAS NOT AN ALLOWABLE EXPENDITURE IN A.Y.2006-2007. ON THIS AS PECT WE FIND THAT THE FINDING OF THE LEARNED CIT(A) IS NOT CLEAR AND THE RE IS NO FINDING OF THE ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -12- AO ON THIS ASPECT IN ASSESSMENT ORDER. IN THESE FA CTS WE FEEL THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE AO FOR FRE SH DECISION AFTER EXAMINING THIS ASPECT AS TO WHETHER THE SAME IS OT HERWISE ALLOWABLE OR NOT AND WHAT WAS REASONING GIVEN FOR MAKING DISALL OWANCE IN A.Y.2006- 2007. IF IT IS FOUND THAT THIS EXPENDITURE WAS OTH ERWISE ALLOWABLE IN A.Y.2006-2007 AND DISALLOWANCE WAS MADE ONLY FOR T HE REASON THAT TDS WAS NOT DEDUCTED AND PAID AND SAME IS DEDUCTED AND PAID IN THE PRESENT YEAR THEN THE DEDUCTION SHOULD BE ALLOWED IN THE P RESENT YEAR. THE AO SHOULD PASS NECESSARY ORDER AS PER LAW AS PER OUR ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSE. 23. THE GROUND NO.7 OF THE ASSESSEE IS AS UNDER: 7. THE LD.CIT(A) ERRED IN CONFIRMING INTEREST CHAR GED UNDER SECTION 234B 234D AND RECOVERY OF INTEREST UNDER S ECTION 244A OF THE ACT. 24. REGARDING INTEREST LIABILITY UNDER SECTION 234B AND 234C OF THE ACT AND RECOVERY OF INTEREST UNDER SECTION 244A I T WAS AGREED BY BOTH THE SIDES THAT THIS IS CONSEQUENTIAL ISSUE AND HEL D ACCORDINGLY. 25. SOME ADDITIONAL GROUNDS ARE ALSO RAISED BY THE ASSESSEE AND THE SAME ARE ADMITTED. THESE ADDITIONAL GROUNDS ARE AS UNDER: 1. THE LEARNED ASSESSING OFFICER & LEARNED C'IT(A) HAVE ERRED IN NOT GRANTING DEPRECIATION ON THE CLOSING WRITTEN FLOWN VALUE OF THE BLOCK OF ASSETS FOR THE A.Y. 2006-07. 2. THE LEARNED ASSESSING OFFICER & LEARNED CIT(A) H AS ERRED IN TAXING INTEREST EARNED ON A PROJECT FUND AMOUNTING TO RS.1 47 61 537/- AS INCOME OF THE APPELLANT. IT IS SUBMITTED THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELL ANT IS ACTING AS A NODAL AGENCY AND INCOME IS DIVERTED AT SOURCE AND D OES NOT BELONG TO THE APPELLANT. ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -13- 2.1 WITHOUT PREJUDICE TO ABOVE IF THE INTEREST IS CONSIDERED ITS INCOME OF THE ASSESSEE DIRECTION BE GIVEN TO ALLOW THE EXPENDITURE IN THE SAME YEAR IN WHICH THEY ARE INCURRED ITS DED UCTION. IT BE SO DONE NOW. 3. THE LEARNED ASSESSING OFFICER & LEARNED CIT(A) H AS ERRED IN NOT DELETING DISALLOWANCE OF RS.3 30 404/- BEING CO NTRIBUTION MADE TO EMPLOYEES' RECREATION MIST BY INVOKING PROVISION S OF SECTION 40A(9) OF THE I.T. ACT. IT IS SUBMITTED THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE SECTION 40A(9) IS NOT AP PLICABLE AND NO DISALLOWANCE AS REQUIRED TO BE MADE. 26. REGARDING ADDITIONAL GROUND NO.1 IT WAS SUBMIT TED THAT THIS ISSUE IS CONSEQUENTIAL TO TRIBUNAL DECISION IN A.Y.2003-2 004 TO 2005-2006. HE SUBMITTED THAT THE AO SHOULD BE DIRECTED TO TAKE CLOSING WDV OF THE ASSETS IN THE PRECEDING YEAR AS THE OPENING OF WDV IN THE PRESENT YEAR. THE LEARNED DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 27. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE ARE O F THE CONSIDERED OPINION THAT THIS IS SETTLED POSITION OF LAW THAT T HE CLOSING WDV OF THE PRECEDING YEAR HAS TO BE ADOPTED AS OPENING WDV OF THE PRESENT YEAR TO WORK OUT THE DEPRECIATION ALLOWABLE TO THE ASSESSEE . THE AO IS DIRECTED ACCORDINGLY. HE SHOULD PASS NECESSARY ORDERS IN TH E LIGHT OF THE ABOVE DISCUSSION AFTER PROVIDING REASONABLE HEARING TO TH E ASSESSEE. 28. REGARDING GROUND NO.2 IT IS FAIRLY CONCEDED BY THE LEARNED AR OF THE ASSESSEE THAT THIS ISSUE WAS DECIDED BY THE TRI BUNAL AGAINST THE ASSESSEE IN A.Y.2003-2004 AND SUBSEQUENT YEARS. AC CORDINGLY IN THE PRESENT YEAR ALSO THIS GROUND IS REJECTED. 29. FOR THE GROUND NO.3 ALSO IT WAS FAIRLY CONCEDE D BY THE LEARNED AR OF THE ASSESSEE THAT THE ISSUE WAS DECIDED AGAINST THE ASSESSEE BY THE ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -14- TRIBUNAL FOR A.Y.2003-2004 AND SUBSEQUENT YEAR. AC CORDINGLY THIS GROUND IS ALSO REJECTED. 30. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. 31. NOW WE TAKE UP THE REVENUES APPEAL FOR A.Y.20 07-2008 I.E. ITA NO.3206/AHD/2010. 32. THE GROUND NO.1 IS AS UNDER: I(I). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION O F RS.24 15 74.441/--U/S 41(1) OF THE ACT BEING THE PR OVISION WRITTEN BACK WITHOUT APPRECIATING THE FACT THAT THE ENTIRE ENTITY WAS EXEMPT HORN TAX UP TO A.Y. 2002-03 THEREFORE CLAIMING TH E DEDUCTION BY WAY OF EXCESS PROVISION WRITTEN BACK OF EARLIER YEA RS. AMOUNTS TO DOUBLE DEDUCTION WHICH IS NOT PERMISSIBLE AS PER P ROVISIONS OF THE ACT. I(II). THE ID.CIT(A) FAILED TO APPRECIATE THE FACT THAT THE WRITE HACK OF THE PROVISION CAN ONLY BE CLAIMED AS A DEDUCTION IF IT IS PROVED BY THE ASSESSEE THAT THE PROVISION MADE IN THE EARL IER YEAR WAS DISALLOWED AND SUBJECTED TO TAX. IN THE INSTANT CAS E THE ASSESSEE HAS NOT PLACED ANY EVIDENCE TO PROVE THAT DIE PROVI SION MADE IN THE EARLIER YEARS WAS SUBJECTED TO TAX OR ADDED IN THE COMPUTATION OF TOTAL INCOME. THEREFORE THE REVERSAL OF THE PROVIS ION DURING THE YEAR DEFINITELY RESULTED INTO INCOME AND ACCORDINGL Y RIGHTLY ADDED IN THE TOTAL INCOME OF THE ASSESSEE BY THE A.O. 33. THE LEARNED DR SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF T HE LEARNED CIT(A). HE ALSO SUBMITTED THAT THE PROVISIONS WERE MADE IN THE YEAR WHEN THE ASSESSEE WAS NOT LIABLE TO TAX. HE ALSO SUBMITTED THAT WHEN PROVISIONS WERE MADE THEY WERE NOT ALLOWABLE AS DEDUCTION IN T HE ASSESSMENT SINCE THE ASSESSEE WAS NOT TAXABLE AND THEREFORE THE SA ME CANNOT BE TAXED AS INCOME UNDER SECTION 41(1) OF THE ACT IN THE PRESEN T YEAR. HE ALSO ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -15- SUBMITTED THAT OTHERWISE ALSO IN VIEW OF PROVISIO NS OF SECTION 36(1)(VII) PROVISION WOULD NOT HAVE BEEN ALLOWED AS DEDUCTIONS IN THE YEAR WHEN THEY WERE MADE. 34. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE FIND THAT THE ADDITION MADE BY THE AO IS NOT SUSTAINABLE FOR TWO REASONS. THE FIRST REASON IS THAT WHEN PROVISION WAS MADE THE ASSESSEE WAS NOT LIABLE TO TAX HENCE IF THE PROVISION IS REVERSED IN THE YEAR OF MAKING THE PROVISION IT IS NOT RESULTING INTO ANY TAX LIABILITY BECAUSE THE ASSES SEE WAS NOT TAXABLE IN THAT YEAR AND THEREFORE REVERSAL OF SUCH A LIABIL ITY CANNOT GIVE RISE TO TAX IN THE YEAR OF REVERSAL WHEN IT IS NOT GIVING ANY BENEFIT TO THE ASSESSEE IN THE YEAR OF MAKING THE PROVISION. THE SECOND REASO N IS THAT EVEN IF IT IS HELD THAT INCOME HAS TO BE ASSESSED IN THE YEAR OF MAKING THE PROVISION THEN THIS DEDUCTION ON ACCOUNT OF PROVISION UNDER S ECTION 36(1)(VII) IS NOT ALLOWABLE DEDUCTION IN THAT YEAR BECAUSE UNDER THI S SECTION ACTUAL WRITE OFF IS ALLOWABLE AND NOT THE PROVISION. THIS IS A PRE-REQUIREMENT OF SECTION 41(1) THAT WHERE THE ALLOWANCE OR DEDUCTION HAS BEEN MADE IN THE ASSESSMENT FOR ANY YEAR IN RESPECT OF LOSS EXPEND ITURE OR TRADE LIABILITY INCURRED BY THE ASSESSEE AND THE SAME IS SUBSEQUEN TLY CEASED OR HAS BEEN REMITTED THEN THERE IS INCOME UNDER SECTION 41(1) OF THE ACT. SINCE IN THE PRESENT CASE NO DEDUCTION HAS BEEN ALLOWED TO THE ASSESSEE IN THE YEAR OF MAKING THE PROVISION AND IT CANNOT BE ALLOWED BECA USE PROVISION IS NOT ALLOWABLE UNDER SECTION 36(1)(VII) WRITE BACK OF S UCH PROVISION CANNOT GIVE RISE TO AN INCOME UNDER SECTION 41(1) OF THE A CT. WE THEREFORE DECLINE TO INTERFERE IN THE ORDER OF THE LEARNED CI T(A) ON THIS ISSUE. THIS GROUND IS REJECTED. 35. THE GROUND NO.2 IS AS UNDER: 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -16- THE LD.CIT(A) ERRED IN DELETING ADDITION OF RS.5 22 681/- U/S 41(1) OF THE ACT BEING EXCESS PROVISION FOR SALES TAX MAD E IN A.Y. 1995- 96 WITHOUT APPRECIATING THE FACT THAT THE ENTIRE EN TITY WAS EXEMPT FROM TAX UP TO A.Y. 2002-03 THUS PROVISION MADE WA S NEITHER ADDED HACK NOR SUBJECTED TO TAX BEING ALLOWED IN TH AT YEAR AND ALLOWING THE SAME DURING THE YEAR WOULD AMOUNT TO D OUBLE DEDUCTION WHICH IS NOT PERMISSIBLE AS PER PROVISIO NS OF THE ACT. 36. THE LEARNED DR SUPPORTED ASSESSMENT ORDER WHER EAS THE LEARNED AR SUPPORTED THE ORDER OF THE CIT(A). REGARDING TH IS GROUND ALSO IT WAS SUBMITTED BY THE ASSESSEE THAT THE PROVISION WAS MA DE IN THE YEAR WHEN THE ASSESSEE WAS NOT LIABLE TO TAX AND THEREFORE WRITE BACK OF SUCH PROVISION CANNOT RESULT IN ADDITION UNDER SECTION 4 1(1) OF THE ACT. 37. WE HAVE CONSIDERED RIVAL SUBMISSIONS. WE FIND THAT THE AMOUNT IN QUESTION IS WRITE BACK OF EXCESS PROVISION FOR SAL ES TAX MADE IN A.Y.1995-96. THIS IS AN ADMITTED POSITION OF LAW T HAT IN A.Y.1995-96 THE PROVISIONS OF SECTION 43B WERE APPLICABLE AND THEREFORE NO DEDUCTION WAS ALLOWABLE IN RESPECT OF ANY PROVISION OF SALES-TAX UNLESS THE SAME WAS PAID. IT IS NOT THE CASE OF THE AO TH AT THE PAYMENT WAS MADE AGAINST SUCH PROVISION. THE SECOND REASON FOR WHICH THE ADDITION IS NOT JUSTIFIED IS THAT WHEN THE PROVISION WAS MADE FOR A.Y.1995-96 THE ASSESSEE WAS NOT LIABLE TO TAX AND HENCE NO BENEF IT HAD ACCRUED TO THE ASSESSEE ON ACCOUNT OF MAKING SUCH PROVISION IN TH AT YEAR AND THEREFORE NO INCOME CAN ARISE ON WRITE BACK OF SUCH PROVISION . WE THEREFORE DECLINE TO INTERFERE IN THE ORDER OF THE CIT(A) ON THIS ISSUE ALSO. THIS GROUND OF THE REVENUE IS ALSO REJECTED. 38. IN THE RESULT THE APPEAL OF THE REVENUE IS REJ ECTED. 39. IN THE COMBINED RESULT THE APPEALS OF THE ASSE SSEE FOR A.Y.2004- 2005 IS ALLOWED AND APPEAL OF THE REVENUE FOR THAT YEAR IS DISMISSED. ITA NO.3200 AND 3201/AHD/2010 & ITA NO.3205 AND 3206/AHD/2010 -17- FOR ASSESSMENT YEAR 2007-2008 THE APPEAL OF THE AS SESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES WHEREAS THE APPEA L OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT ( # ## #. .. .% %% % . .. .&'( &'( &'( &'( /A.K. GARODIA) %) * /ACCOUNTANT MEMBER VK* C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD