ACIT 1(3), MUMBAI v. QUEST INTERNATIONAL (INDIA) LTD ( NOW AS M/S. GIVAUDAN FLAVOURS (I) P. LTD, MUMBAI

ITA 3324/MUM/2009 | 2002-2003
Pronouncement Date: 07-03-2011 | Result: Dismissed

Appeal Details

RSA Number 332419914 RSA 2009
Assessee PAN AAACL1013D
Bench Mumbai
Appeal Number ITA 3324/MUM/2009
Duration Of Justice 1 year(s) 9 month(s) 19 day(s)
Appellant ACIT 1(3), MUMBAI
Respondent QUEST INTERNATIONAL (INDIA) LTD ( NOW AS M/S. GIVAUDAN FLAVOURS (I) P. LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 07-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 07-03-2011
Date Of Final Hearing 06-01-2011
Next Hearing Date 06-01-2011
Assessment Year 2002-2003
Appeal Filed On 19-05-2009
Judgment Text
ITA NO. 2672 AND 3324/MUM/09 ASSESSMENT YEAR: 2002-03 PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI G BENCH MUMBAI [CORAM : PRAMOD KUMAR AM AND V DURGA RAO JM] ITA NO. 2672/MUM/09 ASSESSMENT YEAR: 2002-03 GIVAUDAN FLAVOURS INDIA PVT LTD .. AP PELLANT (FORMERLY QUEST INDIA INTERNATIONAL PVT LTD) 401 AKRUTI CENTER POINT MIDC CENTRAL ROAD MIDC ANDHERI EAST MUMBAI 400 093 [PAN : AAACL1013D] VS. DY COMMISSIONER OF INCOME TAX CIRCLE 1(3) MUMBAI .. RESPONDENT ITA NO. 3324/MUM/09 ASSESSMENT YEAR: 2002-03 DY COMMISSIONER OF INCOME TAX CIRCLE 1(3) MUMBAI .. APPELLANT VS. GIVAUDAN FLAVOURS INDIA PVT LTD .. RESP ONDENT (FORMERLY QUEST INDIA INTERNATIONAL PVT LTD) 401 AKRUTI CENTER POINT MIDC CENTRAL ROAD MIDC ANDHERI EAST MUMBAI 400 093 [PAN : AAACL1013D] APPEARANCES: KANCHAN KAUSHAL DANESH BABANA SHITAL BANDEKAR FOR THE ASSESSEE PAVAN VED FOR THE REVENUE O R D E R PER PRAMOD KUMAR : 1. THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORD ER DATED 23 RD JANUARY 2008 PASSED BY THE CIT(A) IN THE MATTER OF ASSESSMENT UN DER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT 1961 FOR THE ASSESSMENT YEAR 2 002-03. ITA NO. 2672 AND 3324/MUM/09 ASSESSMENT YEAR: 2002-03 PAGE 2 OF 8 2. THE ASSESSEE HAS FILED AN APPLICATION FOR ADMITT ANCE OF AN ADDITIONAL GROUND OF APPEAL. IT IS SUBMITTED THAT THIS ISSUE MAY BE TAKE N UP FIRST BECAUSE IN THE EVENT OF THIS ADDITIONAL GROUND OF APPEAL BEING ADMITTED AN D BEING DECIDED IN FAVOUR OF THE ASSESSEE ALL OTHER GRIEVANCES RAISED IN THE CROSS APPEALS WILL BE RENDERED INFRUCTUOUS. WE WILL THEREFORE BEGIN BY TAKING U P ASSESSEES PLEA FOR ADMISSION OF ADDITIONAL GROUND OF APPEAL. 3. IN THE ADDITIONAL GROUND OF APPEAL FILED BY THE ASSESSEE FOLLOWING GRIEVANCE IS RAISED: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED ASSESSING OFFICER HAS LEGALLY ERRED IN ASSUMING JUR ISDICTION UNDER SECTION 147 OF THE INCOME TAX ACT 1961. 4. IT IS SUBMITTED THAT THE ADDITIONAL GROUND OF AP PEAL PERTAINS TO A PURELY LEGAL GROUND AND ALL THE MATERIAL FACTS NECESSARY FOR IT S DISPOSAL ARE ALREADY ON RECORD. IT IS NOT DISPUTED THAT THIS GRIEVANCE WAS NOT RAISED BEFORE THE AUTHORITIES BELOW BUT RELIANCE IS PLACED ON HONBLE BOMBAY HIGH COURTS J UDGMENT IN THE CASE OF INVENTORS INDUSTRIAL CORPORATION LTD VS CIT (194 ITR 548) IN SUPPORT OF THE PROPOSITION THAT A GROUND BY WHICH THE JURISDICTION TO MAKE ASSESSMENT ITSELF IS CHALLENGED CAN BE URGED BEFORE ANY OF THE AUTHORITY FOR THE FIRST TIM E. A REFERENCE IS ALSO MADE TO HONBLE GUJARAT HIGH COURTS JUDGMENT IN THE CASE O F PV DOSHI VS CIT (113 ITR 22) IN SUPPORT OF THE SAME LEGAL STAND. IT IS CONTENDED T HAT AS HELD BY HONBLE SUPREME COURT IN THE CASE OF NTPC VS CIT (229 ITR 383) THE POWERS OF THE TRIBUNAL ARE NOT REALLY CONFINED TO THE ISSUES ARISING OUT OF ORDER OF THE CIT(A) BUT ALSO TO THE QUESTIONS OF LAW ARISING FROM FACTS WHICH ARE ALREA DY ON RECORD. IT IS SUBMITTED THAT WE SHOULD ADMIT THE ADDITIONAL GROUND OF APPEAL AND DISPOSE OF THE SAME ON MERITS. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND SUBMITS THAT THE ASSESSEE HAD ALL THE OPPORTUNITIES TO RAISE THIS GRIEVANCE B EFORE THE ASSESSING OFFICER AND BEFORE THE CIT(A) BUT HE HAS BYPASSED THESE FORUMS AND APPROACH THE TRIBUNAL DIRECTLY. IT IS SUBMITTED THAT WHILE TRIBUNAL MAY I NDEED HAVE POWERS TO ADMIT AN ADDITIONAL GROUND OF APPEAL BUT THERE HAVE TO BE G OOD REASONS FOR ASSESSE NOT RAISING SUCH A GRIEVANCE BEFORE THE FIRST APPELLATE AUTHORI TY. WE ARE URGED TO REJECT THE ITA NO. 2672 AND 3324/MUM/09 ASSESSMENT YEAR: 2002-03 PAGE 3 OF 8 ADDITIONAL GROUND OF APPEAL. 5. HAVING REGARD TO THE RIVAL SUBMISSIONS AND HAVIN G PERUSED THE MATERIAL ON RECORD WE ARE INCLINED TO ADMIT THE ADDITIONAL GRO UND OF APPEAL SINCE AS ASSESSEE RIGHTLY CONTENDS IT IS A PURE QUESTION OF LAW CHAL LENGING THE VERY ASSUMPTION OF JURISDICTION TO PASS IMPUGNED ORDER AND MERELY BECA USE THE ASSESSEE DID NOT RAISE THIS GRIEVANCE EARLIER THE ASSESSEE CANNOT BE PREVE NTED FROM RAISING THIS GRIEVANCE NOW. IN VIEW OF THESE FACTS AND IN VIEW IF THE LAW LAID DOWN BY HONBLE SUPREME COURT IN NTPCS CASE (SUPRA) WE ADMIT THE ADDITIONAL GRO UND OF APPEAL AND PROCEED TO DEAL WITH THE SAME. 6. THE RELEVANT MATERIAL FACTS ARE LIKE THIS. IN TH IS CASE THE ORIGINAL ASSESSMENT UNDER SECTION 143(3) WAS COMPLETED ON 29 TH MARCH 2005. HOWEVER THE ASSESSEE WAS SERVED A REASSESSMENT NOTICE UNDER SECTION 148 ON 3 0 TH MARCH 2007. WHEN ASSESSEE REQUIRED THE ASSESSING OFFICER TO PROVIDE REASONS F OR SO REOPENING THE ASSESSMENT THE ASSESSEE WAS INFORMED VIDE LETTER DATED 1 ST MAY 2007 FOLLOWING REASONS FOR REOPENING THE ASSESSMENT UNDER SECTION 148: THE ASSESSMENT OF QUEST INTERNATIONAL (INDIA) LIMIT ED FOR AY 2002-03 WAS COMPLETED UNDER SECTION 143(3) ON 29 TH MARCH 2005 DETERMINING TOTAL INCOME AT RS NIL UNDER THE NORMAL PROVISIONS AND RS 9 22 68 0 00 UNDER SECTION 115JB OF THE INCOME TAX ACT 1961. UNDER THE PROVISIONS OF THE INCOME TAX ACT NOT BEIN G IN THE NATURE OF CAPITAL EXPENDITURE LAID OUT WHOLLY AND EXCLUSIVELY FOR TH E PURPOSE OF BUSINESS IS ALLOWABLE WHILE COMPUTING INCOME UNDER THE HEAD PROF ITS AND GAINS OF BUSINESS. DURING SCRUTINY ASSESSMENT INCOME UNDER THE NORMA L PROVISIONS OF THE ACT WAS HELD AS NIL AFTER ALLOWING CURRENT YEARS DEPRECI ATION TO THE EXTENT OF RS 14 48 00 987 AND UNABSORBED DEPRECIATION (CURRENT YE AR) OF RS 3 07 57 548 WAS ALLOWED TO BE CARRIED FORWARD. IT IS SEEN THAT THE ASSESSEE COMPANY HAS ACQUIRED T HE BUSINESS ON GOING CONCERN BASIS FROM M/S HINDUSTAN LEVER LIMITED AT A PURCHAS E CONSIDERATION OF RS 10 300 LAKHS. IN ADDITION TO THIS THE ASSESSEE COMPANY HA S PAID RS 351.61 LAKHS TO M/S HINDUSTAN LEVER LIMITED AS INTEREST ON DELAYED PAY MENT OF PURCHASE CONSIDERATION FOR THE PERIOD 1/4/01 TO 28/6/1 AND THE INTEREST PAID IS TREATED AS REVENUE EXPENDITURE. AS INTEREST IS ON ACCOUNT OF D ELAYED PAYMENT OF ACQUISITION ITA NO. 2672 AND 3324/MUM/09 ASSESSMENT YEAR: 2002-03 PAGE 4 OF 8 COST OF ONGOING CONCERN IT SHOULD HAVE BEEN TREATED AS CAPITAL EXPENDITURE. AS PER THE PROVISIONS OF THE INCOME TAX ACT THE VA LUATION OF PURCHASE OF GOODS AND SALE OF GOODS AND INVENTORY SHALL BE INCLUSIVE O F ANY TAX DUTY CESS ACTUALLY PAID BY THE ASSESSEE TO BRING THE GOODS TO THE PLAC E OF ITS LOCATION AND CONDITION AS ON THE DATE OF VALUATION. IT IS ALSO SEEN FROM ANNEXURE 13 TO TAX AUDIT REPOR T THAT THE ASSESSEE COMPANY IS FOLLOWING EXCLUSIVE METHOD OF ACCOUNTING FOR CENVAT /MOCVAT CREDIT IN THE BOOKS OF ACCOUNTS AND IS ALSO NOT CONSIDERING FOR VA LUATION OF INVENTORY. FURTHER CENVAT CREDIT UNUTILIZED IS TAKEN DIRECTLY TO BALANC E SHEET (ASSET SIDE) UNDER THE HEAD LOANS AND ADVANCES. THE ASSESSEE COMPANY HAS UNUTILIZED CREDIT OF RS 23 61 517 AS ON 31/3/2002. AS THE UNUTILIZED CENVAT/MODVAT CREDIT IS AVAILABLE AS IRREVERSIBLE CREDIT AVAILABLE WITH THE ASSESSEE ON ACCOUNT OF DUTY PAID ON RAW MATERIAL WHICH IN TERMS IS A PART OF THE PROFIT/ INCOME OF THE ASSESS EE AS SUCH AND SHOULD HAVE BEEN CONSIDERED WHILE COMPUTING THE TAXABLE INCOME. I HAVE THEREFORE REASONS TO BELIEVE THAT INCOME CH ARGEABLE TO TAX IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2002-03 HAS ES CAPED ASSESSMENT WITHIN THE MEANINGS OF SECTION 147 OF THE INCOME TAX ACT 1961 . 7. LEARNED COUNSEL SUBMITS THAT THE ABOVE GROUNDS O F REOPENING THE ASSESSMENT ARE NOT GOOD IN LAW AND THEREFORE A REOPENING O F ASSESSMENT BASED ON THESE GROUNDS CANNOT BE SUSTAINED. HE POINTS OUT THAT AS FAR AS ALLOWABILITY OF INTEREST DEDUCTION IS CONCERNED NOT ONLY THAT THE ASSESSEE HAD MADE FULL DISCLOSURE OF ALL THE MATERIAL FACTS BUT ALSO SPECIFIC QUESTIONS WERE RA ISED BY THE ASSESSING OFFICER WHICH HAVE BEEN SATISFACTORILY ANSWERED BY THE ASSESSEE. OUR ATTENTION IS INVITED TO SCHEDULE 15 TO THE PROFIT AND LOSS ACCOUNT WHERE I NTEREST PAID ON PURCHASE CONSIDERATION IS SHOWN EXCEPTIONAL ITEM AND PROPER DISCLOSURE IS MADE IN RESPECT OF THE SAME. OUR ATTENTION IS ALSO INVITED TO NOTES ON ACCOUNTS WHERE DISCLOSURE ABOUT THE INTEREST PAYMENT AND MANAGEMENT FEES PAYMENT TO HINDUSTAN LEAVER LIMITED HAS BEEN MADE. LEARNED COUNSEL THEN INVITES OUR ATT ENTION TO THE FACT THAT AS EVIDENT FROM LETTER DATED3RD MARCH 2005 THE ASSESSING OFFI CER SPECIFICALLY REQUISITIONED NATURE AND DETAILS OF PAYMENT OF MANAGEMENT FEES A ND INTEREST AND REQUIRED THE ASSESSEE TO FURNISH COPIES OF LEDGER ACCOUNT WHERE THESE TRANSACTIONS ARE REFLECTED. ALL THESE DETAILS WERE DULY FURNISHED BY THE ASSESS EE AND COPY OF THE SUBMISSION WAS ALSO PLACED BEFORE US AT PAGES 91 TO 98 OF THE PAPE RBOOK. THE FACT THAT THESE ITA NO. 2672 AND 3324/MUM/09 ASSESSMENT YEAR: 2002-03 PAGE 5 OF 8 SUBMISSIONS WERE PLACED BEFORE THE ASSESSING OFFICE R DURING THE ORIGINAL ASSESSMENT PROCEEDINGS SHOWED THAT THE ASSESSING OFFICER APPL IED HIS MIND TO ALL THE RELEVANT FACTS AND YET DID NOT MAKE THE DISALLOWANCE. ALL TH IS ACCORDING TO THE LEARNED COUNSEL SHOWS THAT THE REOPENING OF ASSESSMENT IS MERELY ON ACCOUNT OF CHANGE OF OPINION. IT IS SUBMITTED THAT A MERE CHANGE OF OPINION OF THE A SSESSING OFFICER ON THE SAME FACTS AND WITHOUT ANY NEW MATERIAL COMING TO LIGHT CANNO T JUSTIFY THE REASSESSMENT PROCEEDINGS. IT IS POINTED OUT THAT A REOPENING OF ASSESSMENT FOR THE AFORESAID REASON IS NOT SUSTAINABLE IN LAW. AS REGARDS THE SECOND ISSUE I.E ADJUSTMENT ON ACCOUNT OF MODVAT/CENVAT IN THE VALUATION IT IS SU BMITTED THAT THE METHOD FOLLOWED BY THE ASSESSEE IS TAX NEUTRAL AND THEREF ORE EVEN IF THIS METHOD IS INCORRECT THAT ERROR PER SE CANNOT BE A VALID REASON FOR REOPENING THE ASSESSM ENT. IT IS ALSO SUBMITTED THAT ALL THE RELATED FACTS WERE PUT BEFOR E THE ASSESSING OFFICER BY WAY OF DISCLOSURE IN THE INCOME TAX COMPUTATION AND ATTACH MENTS TO THE INCOME TAX RETURN AS NOTE. IT IS SUBMITTED THAT THERE IS NO NEW MATERIAL BEFORE THE ASSESSING OFFICER AND IT IS A SIMPLY CASE OF CHANGE OF MIND BY THE ASSESSING OFFICER ON THE SAME SET OF FACTS AND WITHOUT ANY NEW MATERIAL COMING TO THE LIGHT. W E ARE THUS URGED TO QUASH THE IMPUGNED REASSESSMENT ORDER ITSELF. 8. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT MERELY BECAUSE THE ASSESSEE HAS FILED CERTAIN DETAILS IT CANNOT BE IN FERRED THAT THE ASSESSING OFFICER HAS TAKEN A CONSCIOUS DECISION ON THE SAME. HE POINTS O UT THAT THERE IS NOTHING IN THE ASSESSMENT ORDER TO INDICATE THAT THE ASSESSING OFF ICER HAS TAKEN A DECISION IN RESPECT OF ANY OF THE ISSUES ON WHICH REASSESSMENT IS REOPENED. IT IS SUBMITTED THAT WHEN THE ASSESSING OFFICER HAS NOT CONSIDERED THESE ASPECTS OF THE MATTER IT IS CLEAR THAT OPINION HAS NOT BEEN FORMED AND WHEN OPINION I S NOT FORMED THERE CANNOT BE ANY QUESTION OF A CHANGE OF OPINION. ACCORDING TO L EARNED DEPARTMENTAL REPRESENTATIVE A CHANGE OF OPINION PRESUPPOSES AN OPINION HAVING BEEN FORMED BUT NO OPINION IS FORMED ON THE ISSUES ON WHICH REASSES SMENT PROCEEDINGS ARE INITIATED. AS FOR THE QUESTION OF CENVAT AND MODVAT ADJUSTMENT IN VALUATION LEARNED DEPARTMENTAL REPRESENTATIVE FAIRLY ACCEPTS THAT THE RE MAY BE NO TAX IMPLICATIONS OF THE SAME AND THAT HE CANNOT DEMONSTRATE ANY BUT H E HASTENS TO ADD THAT THIS ASPECT ITA NO. 2672 AND 3324/MUM/09 ASSESSMENT YEAR: 2002-03 PAGE 6 OF 8 OF THE MATTER IS NOT RELEVANT AT THE STAGE OF REOPE NING THE ASSESSMENT WHERE ALL THAT IS TO BE SEEN IS WHETHER OR NOT PRIMA FACIE THERE IS AN ESCAPEMENT OF ICNOME. ALL THOSE ASPECTS OF THE MATTER ARE RELEVANT AT THE STA GE OF FRAMING THE ASSESSMENT ORDER AND WE NEED NOT BE GUIDED BY THOSE FACTORS IN THE A DJUDICATION ON CORRECTNESS OF REOPENING THE ASSESSMENT PROCEEDINGS. WE ARE THUS URGED TO CONFIRM THE REOPENING OF ASSESSMENT AND DECLINE TO INTERFERE ON THIS ISSU E. IN REJOINDER LEARNED COUNSEL FOR THE ASSESSEE BROADLY REITERATES HIS SUBMISSIONS. 9. HAVING REGARD TO THE RIVAL SUBMISSIONS AND HAVIN G PERUSED THE MATERIAL ON RECORD WE SEE MERITS IN THE PLEA OF THE ASSESSEE. AS OBSERVED BY HONBLE SUPREME COURT IN THE CASE OF CIT VS KELVINATOR OF INDIA LTD (320 ITR 561) ONE HAS TO GIVE A SCHEMATIC INTERPRETATION TO THE WORDS REASON TO BELIEVE FAILING WHICH SECTION 147 WOULD GIVE ARBITRARY POWERS TO THE ASSESSING OFFICE R TO RE-OPEN ASSESSMENTS ON THE BASIS OF MERE CHANGE OF OPINION WHICH CANNOT BE PER SE REASON TO REOPEN. A REASSESSMENT HAS TO BE BASED ON FULFILMENT OF CERTA IN PRE-CONDITION AND IF THE CONCEPT OF CHANGE OF OPINION IS REMOVED AS WAS CONTENDED ON BEHALF OF THE DEPARTMENT BEFORE HONBLE SUPREME COURT IN THE GAR B OF RE-OPENING THE ASSESSMENT REVIEW WOULD TAKE PLACE WHICH IS NOT PE RMISSIBLE UNDER SCHEME OF REASSESSMENT UNDER THE INCOME TAX ACT. THEIR LORDS HIPS HAVE OBSERVED THAT ONE MUST TREAT THE CONCEPT OF CHANGE OF OPINION AS AN IN-BUILT TEST TO CHECK ABUSE OF POWER BY THE ASSESSING OFFICER AND THEREFORE EVE N AFTER 1 ST APRIL 1989N ASSESSING OFFICER HAS POWER TO REOPEN PROVIDED THERE IS TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT. AS REGARDS THE QUESTION OF INTEREST DISALLOWANCE ALL THE RELEVANT FACTS WERE BEFORE THE ASSESSING OFFICER SPECIFIC ISSUED WERE RAISED DURING THE ORI GINAL ASSESSMENT PROCEEDINGS AND THE SUBMISSIONS MADE BY THE ASSESSEE PLACED ON RECO RD AND YET THE ASSESSING OFFICER DECIDED NOT TO MAKE ANY DISALLOWANCE. THERE WERE NO NEW FACTS BEFORE THE ASSESSING OFFICER WHICH COULD JUSTIFY THE REOPENING. ON THESE FACTS IT WAS NOTHING MORE THAN CHANGE OF MIND BY THE ASSESSING OFFICER AND A REOP ENING OF ASSESSMENT ON THE BASIS OF CHANGE OF OPINION IN VIEW OF HONBLE SUPREME CO URTS JUDGMENT IN KELVINATORS CASE (SUPRA) IS NOT PERMISSIBLE IN LAW. AS FOR THE SECOND REASON WE HAVE NOTED THAT IT ITA NO. 2672 AND 3324/MUM/09 ASSESSMENT YEAR: 2002-03 PAGE 7 OF 8 IS TAX NEUTRAL AND UNLESS THE CONDITION OF SATISFA CTION ABOUT INCOME HAVING ESCAPED ASSESSMENT IS SATISFIED THERE CANNOT BE ANY REOPEN ING OF ASSESSMENT. THE FINDING OF INCOME HAVING ESCAPED ASSESSMENT IS A PRECONDITION FOR REOPENING THE ASSESSMENT. '. HON'BLE BOMBAY HIGH COURT IN THE CASE OF PRASHANT S. JOSHI V . ITO (230 CTR 232) HAS OBSERVED : 'THE AO MUST HAVE REASONS TO BELIEVE THAT SUCH IS THE CASE ( I.E. ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR A PARTICULAR YEAR) BEFORE HE PROCEEDS TO ISSUE NOTICE UNDER S. 147' AND THAT 'TH E REASONS WHICH ARE RECORDED BY THE AO ARE THE ONLY REASONS WHICH CAN BE CONSIDERED WHEN FORMATION. CLEARLY THIS CONDITION IS NOT SATISFIED. IN VIEW OF THESE DISCUS SIONS BOTH THE GROUNDS OF REOPENING THE ASSESSMENT ARE NOT SUSTAINABLE IN LAW . WE THEREFORE QUASH THE REASSESSMENT PROCEEDINGS. 10. AS THE REASSESSMENT PROCEEDINGS ARE QUASHED TH E CORRECTNESS OF ADDITIONS MADE IN THE COURSE OF REASSESSMENT PROCEEDINGS IS E NTIRE AN ACADEMIC QUESTION. ALL OTHER GROUNDS OF APPEAL DEAL WITH THOSE ADDITIONS A ND THEREFORE ALL THESE GROUNDS OF APPEAL ARE DISMISSED AS INFRUCTUOUS. 11. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWE D IN THE MANNER INDICATED ABOVE AND APPEAL OF THE ASSESSING OFFICER IS DISMISSED AS INFRUCTUOUS. PRONOUNCED IN THE OPEN COURT TODAY ON 7 TH DAY OF MARCH 2011. SD/- SD/- (V DURGA RAO ) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNT ANT MEMBER MUMBAI; 7 TH DAY OF MARCH 2011 . COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER MUMBAI 4. COMMISSIONER (APPEALS) MUMBAI 5. DEPARTMENTAL REPRESENTATIVE G BENCH MUMBAI 6. GUARD FILE TRUE COPY BY O RDER ETC. ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES MUMBAI ITA NO. 2672 AND 3324/MUM/09 ASSESSMENT YEAR: 2002-03 PAGE 8 OF 8