T. Murugan, Kottayam v. ACIT, Kottayam

ITA 392/COCH/2008 | 1999-2000
Pronouncement Date: 31-08-2010

Appeal Details

RSA Number 39221914 RSA 2008
Assessee PAN AIUPS3690L
Bench Cochin
Appeal Number ITA 392/COCH/2008
Duration Of Justice 2 year(s) 6 month(s) 11 day(s)
Appellant T. Murugan, Kottayam
Respondent ACIT, Kottayam
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2010
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 31-08-2010
Date Of Final Hearing 01-06-2010
Next Hearing Date 01-06-2010
Assessment Year 1999-2000
Appeal Filed On 18-02-2008
Judgment Text
IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN JM AND SANJAY AR ORA AM I.TA.NOS. 392 & 393/COCH/2008 ASSESSMENT YEARS: 1999-2000 & 2001-02 LATE SHRI T.MURUGAN REPRESENTED BY L/HRS. SMT. MANIAMMAL MURUGAN AND THREE OTHERS. C/O M/S. MEENAKSHY LUCKY CENTRE KOTTAYAM. [PAN: AIUPS 3690L] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-1 KOTTAYAM (ASSESSEE -APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI A.GOPALAKRISHNAN CA-AR REVENUE BY SHRI T.J.VINCENT DR O R D E R PER SANJAY ARORA AM: THIS IS THE SET OF TWO APPEALS BY THE ASSESSEE ARISING OUT OF THE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV KOCHI (`CIT(A) FOR SHORT) DATED 11.12.07 FOR THE ASSESSMENT YEARS (AYS) 1999-00 AND 2001-02. THE APPEALS RAISING THE SAME SINGLE ISSUE WERE HEARD TOGETHER AND ARE BE ING DISPOSED OF TOGETHER BY A COMMON CONSOLIDATED ORDER EVEN AS WAS DONE PER THE IMPUGN ED ORDER. 2. THE ASSESSEE A PARTNER IN THE FIRM M/S MEENAKSH Y LUCKY CENTRE KOTTAYAM AN AUTHORISED LOTTERY AGENT RETURNED HIS INCOME FOR T HE A.Y. 1999-00 AT RS. 1207300/- INCLUDING REMUNERATION FROM THE SAID PARTNERSHIP FI RM; AGENCY COMMISSION; AND SELLERS BONUS. THE RETURNED BUSINESS INCOME INCLUDED RS. 7 87500/- RECEIVED AS PRIZE MONEY ON UNSOLD LOTTERY TICKET/S AND THUS OFFERED TO TAX A T THE NORMAL RATE. THE REVENUE HOWEVER CONTENDS THAT THE SAME IS IN VIEW OF SEC. 115BB OF THE INCOME-TAX ACT 1961 (`THE ACT HEREINAFTER) TAXABLE AT THE FLAT RATE OF 40% (30% W.E.F. AY 2002-03). THIS IS THE CONTROVERSY LEADING TO THE APPEAL(S) BEFORE US WIT H THE FIRST APPELLATE AUTHORITY I.T.A. NOS. 392 & 393/COCH./2008 2 CONFIRMING THE ASSESSMENT LEVYING TAX AT THE PRESCR IBED RATE RELYING ON THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F SAMPANNA KURIES (P.) LTD. VS ITO (2004) 272 ITR 534 (KER). LIKEWISE FOR AY 2001-02; THE PRIZE MONEY INVOLVED BEING RS.266250/-. 3.1 BEFORE US WHILE THE ASSESSEE CLAIMED THE IMPUG NED RECEIPT TO BE A BUSINESS INCOME; THE PRIZE-WINNING LOTTERY TICKET(S) HAVING BEEN ACQUIRED WITHOUT ANY INTENTION TO PARTICIPATE IN THE LOTTERY BUT ONLY ON ACCOUNT OF THEIR REMAINING UNSOLD AND CONSEQUENTLY WITH IT IN STOCK AS AT THE RELEVANT D ATE. RELIANCE STOOD PLACED ON THE FOLLOWING CASE LAW HOLDING THAT UNDER SUCH CIRCUMS TANCES IT COULD NOT BE REGARDED AS INCOME BY WAY OF WINNINGS FROM ANY LOTTERY BUT ONL Y AS INCOME FROM HIS BUSINESS OF THE LOTTERY AGENT ASSESSABLE AS SUCH UNDER SEC. 28(I ): MYSORE SALES INTERNATIONAL LTD. VS. CIT (1979) 117 ITR 64 (KAR.) ASSTT. CIT VS. DIRECTOR STATE LOTTERIES (2002) 255 ITR 236 (GAU) DIRECTOR STATE LOTTERIES VS. ASSTT. CIT (1999) 238 ITR 1 (GUA) ACIT VS. MAJOO AND CO . (ITA NOS 469 470/COCH/04 DATED 11/10/2007) S. PAL & CO. VS. ITO (1997) 61 ITD 15 (CAL.) 3.2 THE LD. DR ON THE OTHER HAND WOULD SUBMIT THA T WHAT ALONE IS RELEVANT IS WHETHER THE ASSESSEE PARTICIPATED IN THE LOTTERY OR NOT. IF THE TRANSACTION LEADING TO THE AWARD OF PRIZE MONEY TO THE ASSESSEE SATISFIES THE TEST OF B EING A `LOTTERY I.E. AS WHERE ALL THE INGREDIENTS AS SPECIFIED BY THE HIGHER COURTS OF L AW FOR IT TO BE CONSIDERED AS A `LOTTERY ARE PRESENT THE QUESTION OF INTENTION AT THE TIME OF PURCHASE OF LOTTERY TICKETS WHETHER FOR SELF OR AS STOCK-IN-TRADE WOULD NOT BE MATERIAL. R ELIANCE WAS PLACED APART FROM THE DECISION IN THE CASE OF SAMPANNA KURIES (P.) LTD . (SUPRA) ON THE ORDER BY THE COCHIN BENCH OF THE TRIBUNAL IN THE CASE OF K.R. SYAMKUMAR VS ITO (2006) 100 ITD 500 (COCH.). SECONDLY THE UNSOLD LOTTERY TICKETS COULD BE RETURNED BACK BY THE LOTTERY AGENT(S) TO THE DIRECTOR OF LOTTERIES. AS SUCH THE VERY FACT THAT THE ASSESSEE DID NOT DO SO BUT RETAINED THE SAME ONLY IMPLIES THAT HE CHOSE T O PARTICIPATE IN THE LOTTERY. THAT IS THE VERY FACT OF NON-SURRENDER AND RETENTION OF THE UNS OLD LOTTERY TICKETS MAKES ABUNDANTLY CLEAR THE INTENTION TO AVAIL OF THE CHANCE ACQUIRE D AT A COST BY THE LOTTERY AGENT AND I.T.A. NOS. 392 & 393/COCH./2008 3 PARTICIPATE IN THE LOTTERY DRAW. THE LD. AR ADMITTE D TO THE PROVISION OF SURRENDER OF THE UNSOLD TICKETS BY THE AGENTS WHICH HOWEVER COULD BE UP TO TWO DAYS PRIOR TO THE DATE OF THE DRAW AND THE ASSESSEE THEREFORE TOOK THE CHANC E OF THE SALE OF THE TICKETS EVEN THEREAFTER WHICH THOUGH DID NOT MATERIALIZE RESUL TING IN THE HOLDING OF THE TICKETS BY THE ASSESSEE. IN OTHER WORDS THE RETENTION WAS GUIDED SOLELY BY BUSINESS CONSIDERATIONS AND THE SAME THUS AS WELL AS WINNING OF PRIZE MONEY T HEREON ONLY BY DEFAULT AND AS AN INCIDENT OF THE ASSESSEES TRADE. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IALS ON RECORD AS WELL AS THE CASE LAW CITED. 4.1 THE FIRST THING THAT STRIKES ONE ON GOING THROUGH THE BARE FACTS OF THE CASE ON WHICH WE OBSERVE NO DISPUTE IS THAT WHILE IT IS TH E PARTNERSHIP FIRM (MEENAKSHY LUCKY CENTRE KOTTAYAM) THAT IS THE LOTTERY AGENT THE WI NNINGS ON THE UNSOLD TICKETS STAND RECEIVED BY ITS PARTNER THE ASSESSEE? IS IT THAT THE UNSOLD LOTTERY TICKET(S) STOOD ACQUIRED BY THE ASSESSEE FROM THE PARTNERSHIP FIRM BY OR E VEN WITHOUT PAYING A CONSIDERATION THEREFOR WHICH AT A RATE OF RS.10/- APIECE (INCLU DING THE AGENTS COMMISSION OF RS. 2/80) IS IN ANY CASE VERY NOMINAL. OR IS IT THAT SUCH TIC KETS STOOD DISTRIBUTED BY THE FIRM AMONGST THE PARTNERS IN THE PROFIT-SHARING OR EQUAL OR EVEN WITHOUT ANY RATIO. THIS FACT IS MATERIAL WARRANTING A CLARIFICATION IN ITS RESPECT . HOWEVER IN VIEW OF THE AGREED POSITION THAT THE UNSOLD LOTTERY TICKETS COULD BE AT THE OPTION OF THE AGENT SURRENDERED BACK TO THE ISSUER LEAVES NO ROOM FOR ANY DOUBT TH AT THE ASSESSEE BY CHOOSING NOT TO DO SO BUT RETAIN THE SAME TOOK A CHANCE PERHAPS ON A CCOUNT OF THE NOMINALITY OR NEGLIGIBILITY OF THE PRICE OF THE TICKET IN RELATIO N TO THE PRIZE MONEY OR THE WINNINGS THAT MAY BEFALL IT IF THE SAME STANDS DRAWN. IN OTHER WO RDS THERE WAS A CONSCIOUS PARTICIPATION IN THE LOTTERY. IT IS THIS CHANCE WHI CH IS WHAT ONE PURCHASES OR ACQUIRES THOUGH AT A NOMINAL COST WHEN HE PURCHASE A LOTTER Y TICKET THAT BEING THE ESSENCE OF A LOTTERY. THAT THERE WAS NO SUCH INTENTION WHEN THE LOTTERY TICKETS WERE PURCHASED OR ACQUIRED IS OF LITTLE RELEVANCE IN WAKE OF THE FAC T THAT THE TICKET(S) HELD BY THE ASSESSEE IMMEDIATELY PRIOR TO THE DRAW AND ON WHICH THE PRI ZE(S) BY THE DRAW OF LOT STAND/S WON SATISFY THE TEST OF A `LOTTERY. THE ASSESSEE HAS T AKEN A RISK AT A COST TO IT (MEASURED BY THE I.T.A. NOS. 392 & 393/COCH./2008 4 COST/PRICE OF THE RELEVANT TICKET(S) IN THE INSTANT CASE) FOR A DISPROPORTIONATE GAIN WHICH IS THE VERY ESSENCE OF A LOTTERY WHICH STANDS DEFI NED VIDE EXPLANATION TO S. 2(24) (IX) BY FINANCE ACT 2001 W.E.F. 1.4.2002 AS ` LOTTERY INCLUDES WINNINGS FROM PRIZES AWARDED TO ANY PERSON BY DRAW OF LOTS OR BY CHANCE OR IN ANY O THER MANNER WHATSOEVER UNDER SCHEME OR ARRANGEMENT BY WHATEVER NAME CALLED ; THE DEFINITION IT WOULD BE NOTED IS IN CONSONANCE WITH THE COMMON UNDERSTANDING AND PERCEP TION OF THE WORD `LOTTERY BESIDES BEING IN AGREEMENT WITH ITS DEFINITION AS GIVEN IN THE STANDARD TEXTS. THE MOMENT THE ASSESSEE DECIDED NOT TO SURRENDER THE UNSOLD TICKET S BUT RETAIN THEM THERE WAS A CHANGE IN THE CHARACTER OF TICKETS IN HIS HANDS I.E. FROM S TOCK-IN-TRADE OF HIS LOTTERY BUSINESS TO HIS PERSONAL/SELF PROPERTY/RIGHT BY VIRTUE OF A DEEMED SALE THERETO AS THESE COULD NO LONGER BE RETURNED BACK; THE SAME HAVING BEEN ALREADY PAID FOR OR IN ANY CASE WOULD STAND PAID FOR IN DUE COURSE. AT THIS STAGE IT MAY BE RELEVANT TO MAKE A CLARIFICATION I.E. THAT THERE IS IN FACT NO QUESTION OF THE PRIZE HAVING BEEN WON ON AN `UNSOLD TICKET WHICH WOULD BE AN INCONSISTENT AND AN IRRECONCILABLE FACT GOING AGAI NST THE VERY CONCEPT OF THE LOTTERY ITSELF. AN UNSOLD TICKET (CHANCE) IS BY DEFINITION AN UNP URCHASED ONE SO THAT IT IS NOT A `LIVE OR A VALID TICKET AND THUS CANNOT FORM PART OF THE D RAW. THE CONTEXT IN WHICH THE TERM `UNSOLD IS BEING PRESENTLY USED IS ONLY TO SIGNIFY THE STATUS OF THE TICKET(S) IN THE HANDS OF THE VENDOR. HOWEVER WHEN THE AGENT CHOOSES NOT TO RETURN THE UNSOLD TICKETS TO THE PRINCIPAL BY THE TIME SPECIFIED THEREFOR PRIOR TO T HE DRAW THE SAME IS ONLY TAKEN/TO BE TAKEN AS PURCHASED BY IT AND THUS `SOLD; THE PRIZ E ON THE DRAWN TICKET NUMBERS BEING CLAIMABLE ON THE BASIS OF THE PRODUCTION OF THE TIC KETS WITH THE AGENT RETAINING THE COUNTERFOIL. THERE IS THUS A PURCHASE OF THE TICKET /CHANCE BY THE VENDOR IN HIS `OWN RIGHT IN CONTRADISTINCTION TO THAT AS AN AGENT AND WHICH HE IS AS ANY OTHER ENTITLED TO. AS SUCH THE SIMPLE QUESTION THAT ARISES IS WHETHER IT WOULD MATTER THAT THE PARTICIPANT IN A LOTTERY IS A LOTTERY AGENT BY VOCATION AND THE LOTTERY TIC KETS UNDER REFERENCE THOUGH WITH IT ALONG WITH OTHERS ONLY FOR THEIR RESALE YET UNDER THE CIRCUMSTANCES STAND CHOSEN TO BE RETAINED BY IT ? TO OUR MIND THE ANSWER CAN ONLY BE IN THE NEGATI VE. 4.2 THIS MATTER CAME UP BEFORE THE HONBLE JURISDIC TIONAL HIGH COURT IN THE CASE OF SAMPANNA KURIES PVT. LTD. (SUPRA) IN THE CONTEXT OF SECTION 194B OF THE ACT (WHICH POSTULATES THE PAYMENT OF THE WINNINGS FROM ANY LOT TERY ONLY SUBJECT TO DEDUCTION OF TAX I.T.A. NOS. 392 & 393/COCH./2008 5 AT SOURCE) IN RELATION TO THE `GIFTS GIVEN IN T HE FACTS OF THAT CASE EVERY MONTH BY THE DRAW OF LOTS TO THE SUBSCRIBERS WHO WERE MAKING PRO MPT PAYMENTS OF THE KURI INSTALMENTS. THE HONBLE HIGH COURT FOUND WITH REF ERENCE TO THE DECISION IN OF THE CASE SESHA AYYAR VS. KRISHNA AYYAR AIR 1936 (MAD)(FB) 225 AND H ANRAJ VS. GOVT OF TAMIL NADU (1986) 61 STC 165 SC THAT THE ESSENTIAL ELEMENTS THAT GO TO CONSTITUTE A `LOTTERY ARE: A). A PRIZE OR SOME ADVANTAGE IN THE NATURE OF A PR IZE; B). DISTRIBUTION THEREOF BY CHANCE; AND C). CONSIDERATION PAID OR PROMISED FOR PURCHASING T HE CHANCE. WE DIGRESS FROM THE COURSE OF THE DISCUSSION FOR A MOMENT TO DRAW ATTENTION TO THE TERM `LOTTERY AS DEFINED UNDER THE ACT TO EMPHASIZE TH E SIMILARITY OR NEAR IDENTITY BETWEEN THE SAME AND AS DELINEATED BY THE HIGHER COURTS OF LAW. IN FACT THE SCOPE OF THE STATUTORY DEFINITION IS WIDER IN AS MUCH AS THE SAME DOES NOT BEAR REFERENCE TO A CONSIDERATION (FOR THE CHANCE) THE THIRD ELEMENT BUT THEN THAT SHOUL D NOT DETAIN US HERE AS THE LOTTERY TICKETS IN THE INSTANT CASE STOOD ACQUIRED ONLY AT A CONSIDERATION IN THE FORM OF THEIR COST AND NEITHER IS THIS ASPECT OF THE MATTER IN DISPUTE . COMING BACK TO OUR DISCUSSION IT WAS FURTHER HELD THAT UNLESS THEREFORE ALL THE AFORE- STATED THREE ELEMENTS WERE PRESENT THE PRIZE SCHEME COULD NOT BE CONSIDERED AS A LOTTERY. IN THE FACTS AND CIRCUMSTANCES OF THAT CASE THE MATTER WAS REMANDED BACK TO THE ASSESSING AUTHORITY TO CONSIDER IN EACH CASE AS TO WHETHER THE PRIZE SCHEME AS INTRODUCED AND I MPLEMENTED SATISFIED THE THREE BASIC OR ESSENTIAL ELEMENTS OF A LOTTERY. THE HONBLE COU RT WAS PARTICULARLY CONCERNED WITH THE EXISTENCE OR OTHERWISE OF THE THIRD ELEMENT I.E. OF A SEPARATE CONSIDERATION; THE KURI SUBSCRIBERS BEING EVEN OTHERWISE OBLIGED TO REMIT T HE KURI INSTALMENTS PROMPTLY FAILING WHICH THE OTHER CONSEQUENCES STOOD PROVIDED FOR IN THE VARIOLA OF THE RESPECTIVE KURIES. IF THERE WAS IT STOOD EXPLAINED IN FACT A SEPARATE CONSIDERATION AS DEMONSTRATED ON THE BASIS OF INDEPENDENT MATERIALS IT WOULD BE A LOTTE RY ELSE NOT. THE AO WAS REQUIRED TO MAKE PROPER ENQUIRY IN THE MATTER AND IT STOOD CLA RIFIED THAT THE FACT OF THE PRIZE MONEY BEING MADE AVAILABLE TO THE SUBSCRIBERS MAKING PROM PT PAYMENTS SO AS TO ENSURE THE SAME WOULD NOT BY ITSELF REVEAL ANY SUCH CONSIDERA TION SO AS TO QUALIFY THE SAID SCHEME AS A LOTTERY. THE KURI COMPANIES OR SUBSCRIBERS IT MAY BE NOTED WERE MAKING THE I.T.A. NOS. 392 & 393/COCH./2008 6 PAYMENTS ONLY IN THE COURSE OF THEIR BUSINESSES AN D THE PRIZE MONEY/GIFTS ONLY CONSTITUTED A BUSINESS RECEIPT. HOWEVER THAT WAS NOT FOUND OR CONSIDERED RELEVANT OR MATERIAL BY THE HONBLE COURT IN DECIDING THE ISSUE . AS LONG AS THE GIFTS CONSTITUTED WINNINGS FROM A LOTTERY IRRESPECTIVE OF IT BEING A BUSINESS RECEIP T OR OTHERWISE IT WOULD BE SUBJECT TO DEDUCTION OF TAX AT SOURCE UNDER SEC. 194B OF THE A CT. THERE IS IT WOULD BE NOTED AN IDENTITY OF EXPRESSION ANY INCOME BY WAY OF WINNINGS FROM ANY LOTTERY OR . OCCURRING IN SEC. 155BB AND SEC. 194B SO THAT THE MEANING OF SAID WORDS AS DETERMINED OR FOUND IN THE CASE OF ONE (S. 194B) WOULD BE APPL ICABLE IN THE CASE OF THE OTHER (S. 115BB). THE RATIO OF THE SAID DECISION IS THUS S QUARELY APPLICABLE IN THE FACTS OF THE PRESENT CASE. THAT IS EVEN ASSUMING THAT THE PRIZE -WINNING UNSOLD LOTTERY TICKETS STAND ACQUIRED AS A PART OF AND IN THE CONDUCT OF ITS BUS INESS BY THE ASSESSEE I.E. CONSTITUTES A BUSINESS RECEIPT EVEN AS IT IS NOT SO ON FACTS; TH E ASSESSEE A LOTTERY AGENT CONSCIOUSLY CHOOSING NOT TO SURRENDER BACK THE UNSOLD TICKETS T O THE ISSUER-PRINCIPAL AND THUS PARTICIPATING IN THE RELEVANT LOTTERY(S) BY TAKING A CHANCE(S). WHY IT MAY BE ASKED COULD NOT A PERSON PARTICIPATE IN THE LOTTERY AS A BUSINE SS PURCHASING TICKETS (CHANCES) IN BULK ? NOTHING IN LAW BARS HIM FROM DOING SO. THE EQUATION OR THE PROBABILITY FACTOR WOULD ALTER WITH EACH ADDITIONAL PURCHASE WHICH WOULD ONLY BE AT A COST. THAT SUCH A BUSINESS WOULD NOT IN THE NORMAL COURSE BE VIABLE AS THE RISK WOU LD BECOME MANAGEABLE OR THE CHANCE OF WINING FAIRLY PROBABLE ONLY AT A DISPROPORTIONA TE COST SO THAT SUCH A BUSINESS WOULD IN THE NORMAL COURSE ONLY BEAR LOSSES IS ANOTHER MATT ER; WE BEING CONCERNED HERE WITH THE MATTER IN PRINCIPLE. THE INCIDENTS OF A LOTTERY ATT ENDING EACH CHANCE (TICKET) ACQUIRED IT WOULD STILL REMAIN A GAME OF CHANCE AND AS SUCH A LOTTERY FOR WHICH THE LEGISLATURE HAS IN ITS WISDOM SPECIFIED A SEPARATE RATE OF TAX VIDE SEC. 115BB OF THE ACT. HOW WOULD IT MAY BE ASKED IT MATTER I.E . ONCE THE ESSENTIAL ELEMENTS OF A LOTTERY (AS AFORE-MENTIONED) ARE SATISFIED WHETHER THE LOT TERY TICKETS ACQUIRED AT A COST (SO THAT HE CONTRIBUTES TO THE PRIZE) BY THE RECIPIENT OF THE P RIZE MONEY (ON SUCH TICKETS) PURCHASED THEM BY BEING MOTIVATED BY THE CONSIDERATION OF WIN NING THE PRIZE MONEY OR BY SOME OTHER; THE HOLDER (OF THE TICKET) IN EACH CASE ACQU IRING THEREBY THE SAME RIGHTS I.E. OF THE TICKET HOLDER IRRESPECTIVE OF THE ACTUAL OR PROFESS ED MOTIVATION. FURTHER THE INTENTION IN EACH CASE HOWSOEVER DIFFERENT THE INDIVIDUAL MOTIV ATIONS MAY OR MAY APPEAR TO BE IS AT HEART ONLY ONE OF A FINANCIAL GAIN OR ADVANTAGE. IF THE PRIZE WON OR THAT STANDS TO BE WON I.T.A. NOS. 392 & 393/COCH./2008 7 IS BY A WAY OF A CHANCE THAT THE SAME STOOD ACQUIR ED AS AN INCIDENT OF BUSINESS WOULD NOT MAKE ANY DIFFERENCE AS IT WOULD STILL REMAIN OR REPRESENT A WINNING FROM A LOTTERY. THE BUSINESS IN ANY CASE IS NOT FOR THE PURCHASE OF TICKETS FOR SELF BUT ONLY AS AN AUTHORIZED AGENT FOR THEIR SALE FOR A COMMISSION. THE VENDOR AS SUCH HAS NO RIGHTS IN THE SAME I.E. EXCEPT THOSE OF AN AUTHORISED SALE AGEN T IN THEIR RESPECT. THE ELEMENT OF CHANCE OR WINDFALL IS PRESENT IN THE WINNING OF THE PRIZE OR THE INCOME ALL THE SAME AND FOR WHICH THE STATUTE PRESCRIBES A SEPARATE RATE OF TAX ON SUCH CASUAL OR NON-RECURRING INCOME. AS SUCH TO OUR MIND THE RATIO OF THE DECIS ION OF THE CASE OF SAMPANNA KURIES (P.) LTD. (SUPRA) IS FULLY APPLICABLE IN THE PRESENT CASE AN D THE QUESTION OF THE HEAD OF INCOME UNDER WHICH THE WINNINGS FROM THE LOTTERY WOULD BE IN THE FACTS OF THE CASE ASSESSABLE UNDER THE ACT I.E. ONCE THE ESSENTIAL ELEMENTS OF A LOTTERY ARE SATISFIED IS IRRELEVANT AND OF NO CONSEQUENCE TO THE APPLICATION OF S. 115BB. THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. G KRISHNAN (1997) 228 ITR 557 (MAD) WENT TO THE EXTENT OF HOL DING THE BONUS RECEIVED BY A LOTTERY AGENT ON THE WINNING TI CKETS AS A WINNING FROM A LOTTERY EXIGIBLE TO DEDUCTION U/S. 80TT. THE LOTTERY AGENT COULD ON PRESENTING THE COUNTERFOIL OF THE WINNING TICKETS CLAIM ADDITIONAL BONUS IN THEI R RESPECT I.E. APART FROM THE REGULAR COMMISSION TO WHICH HE WAS ENTITLED ON THE SALE OF LOTTERY TICKETS. HE WAS AS SUCH THEREBY I.E. BY SELLING THE LOTTERY TICKETS AND P RESERVING THEIR COUNTERFOILS PARTICIPATING IN THE LOTTERY WHICH ENTAILED TWO PRIZES ONE FOR THE HOLDER OF THE DRAWN/WINNING TICKET AND THE OTHER FOR THE AGENT CONCERNED BY WAY OF ADD ITIONAL BONUS. THOUGH IT COULD BE ARGUED THAT THE CHANCE ACQUIRED BY THE LOTTERY AGEN T (TOWARD THE WINNING OF THE ADDITIONAL BONUS) WAS NOT FOR ANY (SEPARATE) CONSIDERATION AN D AS SUCH A FREE CHANCE SO THAT IT WAS DOUBTFUL IF WOULD TECHNICALLY QUALIFY TO BE A `LOTT ERY A VIEW EXPRESSED BY THE SAID COURT IN CIT VS DY DIRECTOR OF SMALL SAVINGS (2004) 266 ITR 27 (MAD.) THE FACT OF THE MATTER IS THAT THE RECEIPT AROSE IN THE COURSE OF AND IN T HE CONDUCT OF BUSINESS SO THAT IT WAS ASSESSABLE AS BUSINESS INCOME THOUGH CONSIDERED AS OF NO MOMENT. 4.3 CONTINUING FURTHER IT NEEDS TO BE APPRECIATED THAT CHAPTER XII OF THE ACT WHERE UNDER SECTION 115BB FALLS IS TITLED `DETERMINATION OF TAX IN SPECIAL CASES AND VIDE VARIOUS SECTIONS THERE-UNDER PRESCRIBES SPECIFIC T AX RATES FOR THE DIFFERENT CLASSES OR I.T.A. NOS. 392 & 393/COCH./2008 8 CATEGORIES OF INCOME. SECTION 115BB AS INDEED IS THE CASE WITH OTHER SECTIONS REFERS TO ONE SUCH INCOME I.E. BY WAY OF WINNINGS FROM ANY LOTTERY CROSSWORD PUZZLE OR RACE (NOT BEING FROM THE ACTIVITY OF OWNING AND MAINTAINING R ACE HORSES) I.E. WHERE THERE IS A SCOPE OF AS EXPLAINED VIDE CIRCULAR NO. 461 DATED 9.7.1986 EARNING BY CHANCE OR WINDFALL GAINS. IN OTHER WORDS THE REFERENCE IS TO THE SOURCE OF I NCOME AND NOT TO THE HEAD OF INCOME UNDER WHICH IT IS ASSESSABLE SO THA T IT BEING ASSESSABLE UNDER ONE HEAD OR THE OTHER FALL AS IT DEFINITELY WOULD UNDER A P ARTICULAR HEAD OF INCOME BE OF NO CONSEQUENCE OR RELEVANCE INSOFAR AS THE APPLICATION OF SECTION 115BB WHICH READS AS UNDER IS CONCERNED :- 115BB. WHERE THE TOTAL INCOME OF AN ASSESSEE INCLU DES ANY INCOME BY WAY OF RACE (NOT BEING INCOME FROM THE ACTIVITY OF OWNING AND MAINT AINING RACE HORSES; OR CARD GAME AND OTHER GAME OF ANY SORT OR FROM GAMBLING OR BETTING OF ANY FORM OR NATURE WHATSOEVER THE INCOME-TAX PAYABLE SHALL BE THE AGGREGATE OF I) THE AMOUNT OF INCOME-TAX CALCULATED ON INCOME BY WA Y OF WINNINGS FROM SUCH LOTTERY OR CROSSWORD PUZZLE OR RACE.. THE LANGUAGE OF THE SECTION IS PRECISE AND UNAMBIGU OUS AND ADMITS OF NO TWO VIEWS WARRANTING THUS THE APPLICATION OF THE GOLDEN RULE OF INTERPRETATION I.E. GIVING A FAIR AND NATURAL MEANING TO THE PLAIN AND EXPRESS LANGUAGE O F THE STATUTE. HOW COULD THE CONDITION OF ASSESSMENT UNDER A PARTICULAR HEAD OF INCOME (AS E.G. BUSINESS INCOME) AS EXCLUDING THE PURVIEW OF THE SECTION THERE-FROM BE IMPORTED THERE-INTO? EVEN READING IT IN HARMONY WITH THE OTHER SECTIONS OF THE CHAPTER OR OF THE ACT IN GENERAL LEADS TO THE SAME RESULT. NOTHING IS TO BE READ INTO A PROVISION WHI CH IS PLAIN AND UNAMBIGUOUS. EVEN REFERENCE TO THE BUDGET SPEECH OF THE FINANCE MINIS TER AS AN EXERCISE IN UNVEILING THE LEGISLATIVE INTENT AS WAS DONE BY THE TRIBUNAL IN THE CASE OF K.R.SYAMKUMAR (SUPRA) WHICH THOUGH AS AFORESAID IS NOT WARRANTED UNDER TH E CIRCUMSTANCES ONLY REINFORCES THE UNDERSTANDING YIELDED ON THE READING OF THE SECTION IN-AS-MUCH AS IT CLARIFIES THAT THE (SPECIFIED) WINDFALL PROFITS WHICH WERE SUBJECT TO THE TDS PROVISION WERE SOUGHT TO BE TAXED AT A FLAT RATE WHILE SIMULTANEOUSLY INCREASI NG THE EXEMPTION TO INCOME OF CASUAL AND NON-RECURRING NATURE U/S. 10(3) OF THE ACT FROM RS. 1000/- TO RS.5000/-. HERE IT MAY ALSO BE PERTINENT TO STATE TH AT THE CONSTITUTIONALITY OF SECTION 44AC (SINCE OMITTED) PRESCRIBING A SEPARATE AND PRESUMP TIVE MANNER FOR COMPUTING PROFITS AND GAINS FROM BUSINESS OF TRADING IN ALCOHOLIC LIQUOR TIMBER ETC. AND SECTION 206C I.T.A. NOS. 392 & 393/COCH./2008 9 PRESCRIBING FOR COLLECTION OF TAX ON SUCH INCOME W AS SUBJECT TO CHALLENGE IN UNION OF INDIA AND ANR. VS. A. SANYASI RAO AND OTHRS . (1996) 219 ITR 330 (SC). THE HONBLE APEX COURT HELD THAT IT WAS IDLE TO CONTEND THAT TH E STATUTORY PROVISIONS LACKED LEGISLATIVE COMPETENCE. THE PROVISIONS WERE HELD AS ONLY MACHIN ERY PROVISIONS THE CHARGE FOR LEVY OF INCOME-TAX BEING PROVIDED BY THE ACT UNDER SECTI ONS 4 TO 9. FURTHER THE FACT THAT THE TAX WAS LEVIED AT A FLAT RATE OR AT AN EARLIER STAG E (I.E. OF PURCHASE) WOULD NOT IN ANY MANNER ALTER THE NATURE OR CHARACTER OF THE LEVY S INCE SUCH MATTERS WERE COMPLETELY IN THE REALM OF LEGISLATIVE WISDOM. EVEN OTHERWISE THE PR ESUMPTION IS ALWAYS IN FAVOUR OF THE CONSTITUTIONAL VALIDITY WHICH IS IN ANY CASE NEITH ER AN ISSUE NOR COULD BE SO BEFORE THE TRIBUNAL. 4.4 IN VIEW OF THE FOREGOING THE QUESTION ARISING FOR ADJUDICATION IT IS BELIEVED STANDS FULLY ANSWERED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE ON BOTH FACTUAL LEGAL CONSIDERATIONS. THE IMPUGNED ORDER THUS REQ UIRES NO INTERFERENCE AT OUR END. 5. BEFORE PARTING WITH THE ORDER HOWEVER WE WOULD ALSO LIKE TO MEET THE CASE LAW RELIED UPON BY THE ASSESSEE EVEN THOUGH OUR DECISI ON IS BASED ON THE FACTS OF THE CASE AND THE BINDING DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT AND THE HONBLE SUPREME COURT OF INDIA. 5.1 IN THE CASE OF MYSORE SALES INTERNATIONAL LTD. VS. CIT (SUPRA) THE ISSUE WAS NOT WHETHER PRIZE MONEY REPRESENTED WINNINGS FROM LOTTE RY OR NOT BUT WHETHER THE SAME REPRESENTED A BUSINESS INCOME OR ONE OF CASUAL OR N ON-RECURRING NATURE. THE DECISION PERTAINS TO THE PRE SECTION 115BB PERIOD SO THAT T HE SAME WAS NEVER UNDER CONSIDERATION. THE ASSESSEE INVESTED A HUGE SUM OF MONEY (RS. 12.5 3 LAKHS) ON THE PURCHASE OF THE UNSOLD LOTTERY TICKETS TO BE ABLE TO FULFIL THE BAR GAINED TARGET OF SALE OF SUCH TICKETS WHICH WOULD ENABLE IT TO AVAIL AN INCENTIVE OF 2.5% ON TH E ENTIRE SALE OF TICKETS I.E. APART FROM THE REGULAR COMMISSION OF 25%. THE ENTIRE AMOUNT OF EXPENDITURE WAS CLAIMED (AND ALLOWED) AS A BUSINESS EXPENDITURE WHICH IS OTHERW ISE PROSCRIBED IN RESPECT OF SUCH INCOME U/S. 58(4) OF THE ACT COOPTED ON THE STATUT E BY FINANCE ACT 1986 W.E F. 1/4/1987 ALONG WITH S. 115 BB. IT WAS UNDER THESE CIRCUMSTAN CES THAT THE PRIZE MONEY OF RS. 6.69 I.T.A. NOS. 392 & 393/COCH./2008 10 LAKHS WAS CONFIRMING THE REVENUES STAND HELD TO REPRESENT BUSINESS RECEIPT; THE IMPUGNED TICKETS HAVING BEEN CONSCIOUSLY PURCHASED BY THE ASSESSEE WITH THE SOLE PURPOSE OF EARNING HIGHER REVENUE BY WAY OF COMMISS ION REJECTING THE ASSESSEES CONTENTION OF THE SAME AS BEING AN INCOME OF CASUAL OR NON-RECURRING NATURE FALLING U/S. 10(3) OF THE ACT AND NOT A BUSINESS INCOME. WE OBS ERVE NO DICHOTOMY; HAVING HEREINBEFORE ITSELF CLARIFIED THAT UNDER SOME CIRCU MSTANCES THE WINNINGS FROM A LOTTERY COULD BE ASSESSABLE AS BUSINESS INCOME WHICH THOUG H BY ITSELF MAY NOT BE A RELEVANT CONSIDERATION FOR THE APPLICATION OR OTHERWISE OF S ECTION 115BB. IN FACT THE QUESTION WHETHER THE PRIZE MONEY REPRESENTED A WINNING(S) FR OM A LOTTERY(S) NEVER AROSE FOR CONSIDERATION IN THAT CASE NOR STOOD DECIDED UPON. THERE IS NO DISCUSSION ON THE ESSENTIAL ATTRIBUTES OF OR WHAT CONSTITUTES A LOTTERY IN T HE JUDGEMENT. THE SOLE QUESTION UNDER REFERENCE WAS THE APPROPRIATE HEAD OF INCOME UNDER WHICH THE SAME IS ASSESSABLE I.E. U/C IV-D OR IV-F AND FURTHER IF IT FELL TO BE COVERED U/S. 10(3) AS A CASUAL OR NON-RECURRING INCOME. A BARE READING OF THE FACTS WOULD EXHIBIT C OMPULSIVELY THE VALIDITY OF THE DECISION. THE ASSESSEE A SOLE SELLING AGENT UNDER AN ARRANGEMENT ENTERED WITH THE DEPARTMENT OF LOTTERIES OF THE STATE OF KARNATAKA UNDERWROTE THE SALE OF LOTTERY TICKETS TO THE EXTENT OF 75% OF THE TICKETS RELEASED FOR EA CH DRAW. THE ASSESSEE WAS BOUND TO PAY FOR THE BALANCE TICKETS WHERE THE ACTUAL SALE OF TI CKETS FELL BELOW THE BARGAINED 75% AND WHICH WOULD BE DEEMED TO HAVE BEEN PURCHASED BY IT. THE ASSESSEE WAS UNDER THE AGREEMENT ENTITLED TO A COMMISSION OF 25% ON THE T ICKETS SOLD AND IN ADDITION A FURTHER INCENTIVE PAYMENT OF 2.5% WHERE THE TICKETS RELEASE D FOR A DRAW NUMBERED NOT LESS THAN 50 LACS PROVIDED ALL THE TICKETS WERE `SOLD. THE INCENTIVE AT THE DISCRETION OF THE PRINCIPAL COULD ALSO BE ALLOWED WHERE THE NUMBER F ELL BELOW 50 LACS. IT WAS UNDER THESE SET OF CIRCUMSTANCES WHICH THE HONBLE COURT OBSER VED AS PECULIAR THAT THE INVESTMENT ON UNSOLD TICKETS WAS HELD AS A BUSINESS EXPENDITURE AND THE PRIZE MONEY REALISED ON SUCH TICKETS CONSEQUENTLY A PART OF THE BUSINESS RECEI PT TAXABLE AS SUCH. IN THE PRESENT CASE THE ASSESSEE IS NOT OBLIGED TO PURCHASE THE TICKETS AND DOES SO HIS OWN VIOLATION JUST AS ANY ONE ELSE DOES; THE ADDITIONAL INVESTMENT BEING A NEGLIGIBLE FRACTION OF THE PRIZE MONEY THAT STANDS TO BE WON. ALSO THE INVESTMENT O R COST IS NOT JUSTIFIED AS A BUSINESS EXPENDITURE AS NO ADDITIONAL INCOME OR REVENUE STR EAM IS GENERATED THUS; IT STANDING TO RECOUP ONLY 28% OF THE COST BY WAY OF COMMISSION S O THAT THERE IS YET AN ADDITIONAL COST I.T.A. NOS. 392 & 393/COCH./2008 11 OR LOSS OF 72% OF THE PRICE OF TICKETS I.E. @ RS. 7/20 PER TICKET. THERE IS IN VIEW OF THE FOREGOING NO COMPARISON BETWEEN THE FACTS OF THE T WO CASES AND THE ASSESSEE BY TRYING TO DRAW A COMPARISON IS ONLY TRYING TO MATCH THE C OLOUR OF ONE WITH ANOTHER. 5.2 WITH REGARD TO THE DECISION BY THE HONBLE KARN ATAKA HIGH COURT IN THE CASE OF DIRECTOR OF STATE LOTTERIES VS. ACIT (SUPRA) AND THEN AGAIN IN ACIT VS. DIRECTOR OF STATE LOTTERIES (SUPRA) APPROVING THE FORMER (BEING BY A SINGLE J UDGE). THE SAME ARE IN THE CONTEXT OF SECTION 194B WHICH IS PARA MATERIA EMPLOYING THE SAME EXPRESSION ` WINNINGS FROM ANY LOTTERY. THE SAME ARE IN CONTRAD ICTION TO THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SAMPANNA KURIES PVT. LTD . (SUPRA) SO THAT ONLY THE LATTER WOULD PREVAIL. LIKEWISE WOULD BE THE POSITI ON IN RESPECT OF THE DECISION BY CO- ORDINATE BENCH IN THE CASE OF ACIT VS. MAJOO AND COMPANY (SUPRA). 5.3 FINALLY WE TAKE UP THE CASE OF S.PAL AND COMPANY VS. ITO (SUPRA). THE FACTS BEING IDENTICAL TO THE CASE BEFORE HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMERCIAL CORPORATION OF INDIA LTD. VS. ITO (1993) 201 ITR 348 (BOM.) IT WOULD BE MORE APPROPRIATE TO REPRODUCE THE RELEVANT PART OF THE C ACHE NOTES I.E. THAT BEARING THE RELEVANT FACTS AND FINDINGS FROM THE LATTER DECISION: (II) THE PETITIONER-COMPANY ENTERED INTO AN AGREEMENT DA TED DECEMBER 21 1989 WITH THE GOVERNMENT OF GOA TO ORGANIZE LOTTERIES ON BEHALF OF THE STATE OF GOA ON AN ALL- INDIA BASIS EXCEPT WITHIN THE STATE FOR A PERIOD O F THREE YEARS COMMENCING FROM THE DATE OF THE FIRST DRAW ADMITTEDLY HELD ON MARCH 5 1990. UNDER THAT AGREEMENT THE COMPANY WAS REQUIRED TO CAUSE THE LOTTERY TICKETS TO BE PRI NTED AT ITS OWN COST AGAINST THE PAYMENT OF GUARANTEED PROFIT TO THE GOVERNMENT. THE COMPANY WAS TO DEPOSIT THE PRIZE MONEY AND THE COST OF THE DRAW. THE COMPANY WAS PROHIBITED UNDER THE TERMS AND CON DITIONS OF THAT AGREEMENT FROM OPERATING WITHIN THE TERRITORY OF GO A FOR SALE OF THE LOTTERY TICKETS. THE GOVERNMENT WAS TO CONTINUE TO CONDUCT EXISTING WEEK LY/MINI/BUMPER/SPECIAL LOTTERY DRAWS AS USUAL WITHIN THE STATE OF GOA WITH A PROHI BITION THAT THE GOVERNMENT OF GOA SHALL NOT START A LOTTERY ON AN ALL-INDIA BASIS WIT HOUT CONSULTING THE COMPANY. THE COMPANY WAS REQUIRED TO SUBMIT SCHEMES FROM TIME TO TIME TO THE GOVERNME NT FOR HOLDING WEEKLY MONTHLY BUMPER INSTANT AND SUPER- BUMPER DRAWS TO OBTAIN THE TURNOVER ENVISAGED. THE COMPANY WAS REQUIRED TO FOLLOW THE GUIDELINES IN RESPECT OF PRIZE MONEY AS LAID DOWN BY THE GOVERNMENT OF INDIA. UNDER CLA USE 15 OF THE AGREEMENT THE PRIZE MONEY SHOULD BE CLAIMED WITHIN A PERIOD OF SIXTY DA YS FROM THE DRAW. THE AGENT WOULD BE ENTITLED TO THE BENEFIT OF RETAINING WITH IT THE UNCLAIMED PRIZE AMOUNT OF TICKETS VALUED UP TO RS. 5 000 AND THE GOVERNMENT WOULD BE ENTITLE D TO THE BENEFIT OF THE UNCLAIMED PRIZE AMOUNT OF TICKETS VALUED ABOVE RS. 5000 AFTER THE EXPIRY OF THE PERIOD PROVIDED FOR I.T.A. NOS. 392 & 393/COCH./2008 12 PREFERRING CLAIMS. THE AGENT WOULD ALSO BE ENTITLE D TO CREDIT IN RESPECT OF THE PRIZES OF UNSOLD TICKETS REMAINING WITH IT. (III) THAT THE AGREEMENT HAD TO BE CONSIDERED IN TH E LIGHT OF CIRCUMSTANCES AND THE NATURE OF THE TRANSACTION INVOLVED. IT HAD TO BE D ETERMINED WHETHER IT WAS AN AGREEMENT OF AGENCY OR SALE. THE CLAUSES IN THE AGREEMENT MAD E IT CLEAR THAT THERE WAS NO SALE OF TICKETS TO OR PURCHASE BY THE COMPANY. THE SPEND ING OF MONEY FOR PRINTING LOTTERY TICKETS AND OVER PUBLICITY IN ADVANCE WAS NO GROUND TO HOLD THAT THE SAME AMOUNTED TO PAYMENT TOWARDS THE PURCHASE PRICE. EVEN IN AN AGR EEMENT OF AGENCY AN AGENT CAN PAY MONEY IN ADVANCE TO THE PRINCIPAL AND SUCH AN ADVAN CE PAYMENT WOULD NOT RENDER AN AGENCY AGREEMENT AN AGREEMENT OF PURCHASE. THE AGR EEMENT DATED DECEMBER 21 1989 WAS AN AGREEMENT OF AGENCY AND THE STATE OF GOA WAS THE PRINCIPAL AND THE PETITIONER- COMPANY WAS AN AGENT. IN A LOTTERY THERE IS A CHAN CE FOR A PRIZE. THEREFORE THERE MUST BE CONSIDERATION PAID FOR TAKING A CHANCE. THE COMP ANY DID NOT PURCHASE ANY LOTTERY TICKET. THEY DID NOT TAKE ANY CHANCE AT THE DRAW. THE WORD PRIZE IN CLAUSE 15 OF THE AGREEMENT OBVIOUSLY REFERRED TO CLAUSE 10 OF THE AG REEMENT . UNDER CLAUSE 10 THE PETITIONER-COMPANY WAS REQUIRED TO DEPOSIT THE PRIZ E MONEY THIRTY DAYS IN ADVANCE BEFORE THE DRAW. THIS WAS A GUARANTEE TO THE GOVERNMENT A S FINALLY THE GOVERNMENT WAS RESPONSIBLE FOR PAYING THE PRIZES TO THE PURCHASERS OF WINNING TICKETS. WHEN TICKETS REMAINED UNSOLD THE GOVERNMENT WAS REQUIRED TO RETU RN OR CREDIT MONEY IN FAVOUR OF THE PETITIONER. THE WORD PRIZE USED IN CLAUSE 15 HAD TO BE UNDERSTOOD IN THE CONTEXT OF CLAUSE 10 OF THE AGREEMENT. IT WAS IN REALITY NOT A PRIZE BECAUSE A TICKET WHICH HAS REMAINED UNSOLD CANNOT WIN A PRIZE. HENCE MONIES CREDITED TO THE PETITIONER-COMPANY BY THE GOVERNMENT OF GOA UNDER CLAUSE 15 OF THE AGR EEMENT DATED DECEMBER 21 1989 WERE NOT INCOME BY WAY OF WINNINGS FROM LOTTERY AND THEREFORE NO TAX WAS DEDUCTIBLE BY THE GOVERNMENT OF GOA. THE FOREGOING IS SELF-EXPLANATORY AND THE HON BLE COURT FOUND AS A FACT THAT THERE WAS IN FACT AND REALITY NO PARTICIPATION BY THE ASSESSE E-VENDOR AND THE PRIZE MONEY FLOWED TO IT AS A PART OF THE BUSINESS ARRANGEMENT OR CONTRAC T IN LIEU OF ITS INVESTMENT AND SERVICES RENDERED. THERE COULD POSSIBLY BE NO DISPUTE WHATSO EVER WITH THE FINDINGS BY THE HONBLE COURT IN THE FACTS OF THE CASE WHICH ARE COMPLETEL Y DIFFERENT FROM THOSE OBTAINING IN THE PRESENT CASE AND FOR WHICH DECISION IT WENT INTO A ND RELIED ON A PLETHORA OF CASE LAW INCLUDING BY THE HONBLE APEX COURT IN ANRAJ H. VS. GOVERNMENT OF TAMIL NADU (SUPRA) REPRODUCING THE RELEVANT PART THEREOF I.E. AS DEL INEATING WHAT CONSTITUTES A LOTTERY (AT PG. 361) SO THAT THERE IS NO DIGRESS FROM THE LAW IN T HE MATTER. RATHER IF ANYTHING OUR FINDING OF THE TWO PROVISIONS I.E. SS. 194B AND 1 15BB EMPLOYING THE SAME EXPRESSION BEING PARA MATERIA STANDS ENDORSED BY THE HONBLE COURT FURTHER FOR TIFYING OUR DECISION. 6. IN THE RESULT THE APPEALS BY THE ASSESSEE AR E DISMISSED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER I.T.A. NOS. 392 & 393/COCH./2008 13 PLACE: ERNAKULAM DATED: 31ST AUGUST 2010 GJ COPY TO: 1. LATE SHRI T.MURUGAN REP. BY L/HRS. SMT. MANIAMM AL MURUGAN PROPRIETOR M/S. MEENAKSHY LUCKY CENTRE MEENAKSHY BHAVAN PUTHIYTHR IKOVIL THIRUNAKKARA KOTTAYAM- 686 001. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE -1 KOTTAYAM 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-IV KOC HI. 4. THE COMMISSIONER OF INCOME-TAX KOTTAYAM. 5. D.R./I.T.A.T. COCHIN BENCH COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REG ISTRAR)