M/s. Star Music, CHENNAI v. DCIT, CHENNAI

ITA 910/CHNY/2011 | 2006-2007
Pronouncement Date: 30-03-2012 | Result: Allowed

Appeal Details

RSA Number 91021714 RSA 2011
Assessee PAN AAVFS2085C
Bench Chennai
Appeal Number ITA 910/CHNY/2011
Duration Of Justice 10 month(s) 12 day(s)
Appellant M/s. Star Music, CHENNAI
Respondent DCIT, CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 30-03-2012
Date Of Final Hearing 14-03-2012
Next Hearing Date 14-03-2012
Assessment Year 2006-2007
Appeal Filed On 18-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH CHENNAI BEFORE SHRI ABRAHAM P.GEORGE ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY JUDICIAL MEMBER ITA NO.910/MDS/2011 (ASSESSMENT YEAR : 2006-07) M/S. STAR MUSIC 23A MANDIRA APARTMENTS NORTH BOAG ROAD T.NAGAR CHENNAI-600 017. PAN:AAVFS2085C VS. THE DEPUTY COMMISSIONER OF INCOME TAX MEDIA CIRCLE-II CHENNAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.BANUSEKAR C.A. RESPONDENT BY : SHRI E.S .NAGENDRA PRASAD CIT DR DATE OF HEARING : 14 TH MARCH 2012 DATE OF PRONOUNCEMENT : 30 TH MARCH 2012 O R D E R PER VIKAS AWASTHY JUDICIAL MEMBER: THE APPEAL HAS BEEN FILED BY THE ASSESSEE IMPUGN ING THE ORDER DATED 16.03.2011 PASSED BY THE CIT CHENN AI-IV UNDER SECTION 263 OF THE INCOME TAX ACT 1961 (HERE INAFTER REFERRED TO AS THE ACT). 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE/APPELLANT IS ENGAGED IN THE BUSINESS OF PUR CHASING AUDIO RIGHTS MANUFACTURING AUDIO CASSETTES CDS AN D SELLING THEM. THE ASSESSEE FILED RETURN OF INCOME FOR THE A SSESSMENT ITA NO.910/MDS/ 2011 2 YEAR 2006-07 ON 31.10.2006 ADMITTING TOTAL INCOME O F ` 16 49 741/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. NOTICE UNDER SECTION 143(2) WAS ISSUED TO THE ASSESSEE ON 9.7.2007. THE ASSESSING OFFICER DISALLO WED EXPENSES TO THE TUNE OF ` 22 430/- ON ACCOUNT OF DONATION ( ` 15 000) AND POOJA EXPENSES ( ` 7430) IN THE PROFIT AND LOSS ACCOUNT. SINCE THE ASSESSEE BROUGHT FORWARD THE LO SSES FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06 AGAINST TH E TOTAL INCOME FOR THE ASSESSMENT YEAR 2006-07 THE TAX LI ABILITY OF THE ASSESSEE WAS NIL. 3. THE CIT ISSUED NOTICE UNDER SECTION 263 OF THE A CT TO THE ASSESSEE WITH THE FOLLOWING OBSERVATIONS:- IT IS SEEN THAT DURING THE YEAR THE ASSESSEE HAS PURCHASED AUDIO COPY RIGHTS AND CD DVD RIGHTS AND DEBITED P & L ACCOUNT WITH ENTIRE EXPENDITURE TOWARDS ACQUISITION OF COPY RIGHTS. THE ASSESSING OFFICER SHOULD HAVE CAPITALIZED THE EXPENDITURE OF ` 82 55 000/- [ ` 51 85 000 + ` 30 70 000] AND ALLOWED DEPRECIATION ON IT. INSTEAD OF ALLOWING DEPRECIATIO N OF ` 20 63 750/- THE ASSESSING OFFICER ALLOWED THE ENTIRE EXPENDITURE WHICH HAS RESULTED IN UNDERASSESSMENT. ON ACCOUNT OF THIS THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF THE REVENUE. THEREFORE PROVISIONS OF ITA NO.910/MDS/ 2011 3 SECTION 263 OF THE INCOME-TAX ACT 1961 ARE INVOKED. 4. THE ASSESSEE FILED REPLY DATED 16.03.2011 TO THE SHOW CAUSE NOTICE STATING THAT TREATMENT OF RIGHTS AS CA PITAL AND PROVIDING DEPRECIATION ON THE SAME IS NOT CORRECT. IF THE PURCHASES HAVE TO BE CAPITALIZED IN THE SAME MANNE R THE RECEIPT ALSO NEEDS TO BE CAPITALIZED. AS PER RULE 9 A THE ENTIRE EXPENSES OF A MOVIE/PRODUCTION COULD BE WRITTEN OFF IF THE SAME IS RELEASED WITHIN THREE MONTHS BEFORE THE END OF THE FINANCIAL YEAR. THE CIT DID NOT ACCEPT THE CONTENTI ONS OF THE ASSESSEE AND HELD AS UNDER:- THE ASSESSEE HAS PURCHASED THE END PRODUCT FROM A PRODUCER I.E. AUDIO RIGHTS AND RIGHTS IN CD & DVDS. THE ASSESSEE HAS PURCHASED BY INCURRING EXPENSES OF ` 51 85 000/- TOWARDS PURCHASE OF AUDIO RIGHTS AND ` 30 70 000/- TOWARDS CD AND DVD RIGHTS. THESE RIGHTS PERMIT THE ASSESSEE TO EXPLOIT THE AUDIO AND CD AND DVD TO EARN REVENUE. THE RIGHTS BEING PURCHASED BY PAYING A LUMP SUM AMOUNT ARE CAPITAL AND ON THIS DEPRECIATION ARE ALLOWABLE AT 25%. WHILE MAKING THE ASSESSMENT THE ASSESSING OFFICER HAS NOT TAKEN PROPER STAND WHICH HAS RESULTED IN ALLOWING THE ENTIRE EXPENDITURE THAT LED TO UNDER- ASSESSMENT. THE ASSESSING OFFICER IS DIRECTED TO MODIFY THE ASSESSMENT AS DISCUSSED ABOVE AND ITA NO.910/MDS/ 2011 4 REDO THE ASSESSMENT AFRESH AFTER PROVIDING OPPORTUNITY TO THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF THE CIT THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. THE G ROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER:- 1. FOR THAT THE ORDER OF THE CIT IS WITHOUT JURISD ICTION CONTRARY TO LAW FACTS AND CIRCUMSTANCES OF THE CAS E AND AT ANY RATE IS OPPOSED TO THE PRINCIPLES OF EQUITY NATURAL JUSTICE & FAIR PLAY. 2. FOR THAT THE CIT FAILED TO APPRECIATE THAT THERE WAS NO ERROR OR PREJUDICE MUCH LESS BOTH TO WARRANT THE INVOCATION OF THE POWERS CONFERRED U/S.263. 3. FOR THAT THE CIT ERRED IN CONCLUDING THAT THE EXPENDITURE TOWARDS ACQUISITION OF COPY RIGHTS IS N OT REVENUE IN NATURE AND HAS TO BE CAPITALIZED. 4. FOR THAT THE CIT FAILED TO APPRECIATE THAT THE EXPENDITURE TOWARDS ACQUISITION OF COPY RIGHTS WAS ALLOWED AS REVENUE EXPENDITURE AS CLAIMED BY THE APPELLANT IN EARLIER YEARS ALSO. ITA NO.910/MDS/ 2011 5 5. FOR THAT THE CIT FAILED TO APPRECIATE THAT THE ASSESSING OFFICER HAS ALLOWED THE SAME AS REVENUE EXPENDITURE ONLY AFTER DETAILED EXAMINATION. 6. FOR THAT WITHOUT PREJUDICE TO THE ABOVE THE CIT FAILED TO APPRECIATE THAT IF THE PURCHASES HAVE TO BE CAPITALIZED THEN THE RECEIPTS ALSO HAVE TO BE CAPIT ALIZED. 7. FOR THAT THE CIT FAILED TO APPRECIATE THAT THE BUSINESS OF THE APPELLANT IS TRADING IN RIGHTS AND THAT THERE WILL BE NO BUSINESS OR INCOME CALLING FOR CAPITALIZATION OR WRITE OFF. 8. FOR THAT THE CIT FAILED TO APPRECIATE THE RULES LAID DOWN IN RULE 9A/9B OF THE I.T.RULES FOR WRITE OFF O R EXPENSES. 6. SHRI T.BANUSEKAR AUTHORIZED REPRESENTATIVE OF T HE ASSESSEE SUBMITTED THAT THE EXPENSES INCURRED BY TH E ASSESSEE IN PURCHASING AUDIO COPY RIGHTS AND CD & D VD RIGHTS ARE REVENUE IN NATURE. HE CONTENDED THAT CIT HAS FAILED TO APPRECIATE THAT EXPENDITURE TOWARDS ACQUISITION OF COPY RIGHTS WERE ALLOWED AS REVENUE EXPENDITURE TO THE ASSESSE/APPELLANT IN THE EARLIER YEARS ALSO. HE FUR THER ITA NO.910/MDS/ 2011 6 CONTENDED THAT IT IS A WELL SETTLED LAW THAT EXPEND ITURE TOWARDS ACQUISITION OF COPY RIGHTS IS REVENUE IN NATURE AN D IS NOT TO BE CAPITALIZED. HE SUBMITTED THAT THE CASE OF THE ASSESSE/APPELLANT IS SQUARELY COVERED BY THE ORDERS OF THE OTHER BENCHES OF THIS TRIBUNAL IN THE CASES OF : I) SUPER CASSETTES INDUSTRIES P.LTD. VS. CIT (1992 ) 41 ITD 530 (DEL); II) M. SUBRAMANIAM VS. DCIT (1992) 42 ITD 676 (MAD) III) GRAMOPHONE CO.OF INDIA LTD. VS. DCIT (1994) 48 ITD 145 (CAL); IV) VENUS RECORDS & TAPE MFG. CO.(MUM); & V) TIPS CASSETTES & RECORD CO. VS. ACIT. (2002) 8 2 ITD 641(MUM). 7. ON THE OTHER HAND THE LEARNED D.R. SUBMITTED TH AT THE ORDER PASSED BY THE CIT IS A WELL REASONED ORDER. H E FURTHER CONTENDED THAT THE CIT HAS RIGHTLY INVOKED THE PROV ISIONS OF SECTION 263 OF THE ACT. THE BENEFITS/PROFITS FROM C OPYRIGHTS ACQUIRED BY ASSESSEE FOR MUSIC CD & DVD ARE ENDURIN G IN NATURE. LEARNED D.R. FURTHER SUBMITTED THAT THE EXP ENDITURE ITA NO.910/MDS/ 2011 7 INCURRED ON ACQUISITION OF COPYRIGHTS SHOULD BE CAP ITALIZED AND THE ASSESSEE IS ENTITLED TO CLAIM DEPRECIATION ON THE SAME. 8. IN SUPER CASSETTES INDUSTRIES P.LTD. (SUPRA) T HE DELHI BENCH OF THE TRIBUNAL CAME TO THE CONCLUSION THAT R OYALTY PAID FOR OBTAINING RIGHTS OF REPRODUCTION OF AUDIO SOUND AND MUSIC FROM MASTER PLATE WAS ALLOWABLE AS REVENUE EXPENDIT URE. THE ASSESSEE WAS ENGAGED IN BUSINESS OF MANUFACTURING P RE- RECORDED AUDIO AND VIDEO CASSETTES AS ALSO BLANK A UDIO AND VIDEO CASSETTES AKIN TO THE ASSESSEES CASE. THE C ONCERN PURCHASED MASTER PLATE BY WAY OF ASSIGNMENT OF COPY RIGHTS WHICH CONTAIN ORIGINAL SOUND-TRACK AND SONGS REPRO DUCED THE SAME INTO BLANK CASSETTES WITH THE HELP THEREOF AND SOLD THE SAME IN MARKET. THE CONCERN HERE HAD PAID THE CONSI DERATION MONEY PARTLY IN SHAPE OF A FIXED SUM INITIALLY AND PARTLY BY WAY OF PERCENTAGE OF SALE VALUE OF THE RECORDED CAS SETTES. FOR EVERY PRODUCER FROM WHOM THE MASTER PLATE WAS PURCHASED THE PLATE WAS DIFFERENT. THE ASSESSEES CLAIM WAS THAT THE FINAL PRODUCT AS PRODUCED BY THE ASSESSEE WAS DIFFERENT. FOR EVERY SERIES OF ITEM OF MUSIC SOUND ETC. WAS ITA NO.910/MDS/ 2011 8 NEVER UNIFORM. THE CONTENTS OF THE PLATE WAS A DESI GN FORMULA AND RAW MATERIAL ALL EMBEDDED INTO ONE. THE PLATE CANNOT BE TERMED AS OF CAPITAL NATURE. THE INITIAL LUMPSUM PAYMENT AND SUBSEQUENT REIMBURSEMENT IN THE FORM OF ROYALTY ON SALES WILL NOT CHANGE THE CHARACTER OF ITS EXPEN DITURE BEING REVENUE IN NATURE. THE HONBLE MEMBERS OF THE TRIBU NAL DELHI BENCHES FOLLOWING THE JUDGEMENTS OF THE HON BLE SUPREME COURT IN THE CASE OF TRAVANCORE SUGARS & CHEMICALS LTD. VS. CIT. (1966) 62 ITR 566(SC) GOT AN LIME SYNDICATE VS. CIT (1966) 59 ITR718 (SC) AND EMPIRE JUTE MILLS CO.LTD. VS. CIT (1980) 124 ITR 1(SC) HELD THA T THE ROYALTY PAID INCLUDING THE COST WAS ON REVENUE ACCO UNT AND HENCE WAS FULLY ALLOWABLE AS DEDUCTION IN COMPUTING THE INCOME OF THE ASSESSEE. 9. IN THE CASE OF M.SUBRAMANIAM (SUPRA) THE CO-ORD INATE BENCH OF THIS TRIBUNAL HELD IN PARAGRAPH 12 AS UNDE R:- 12. THE FACTS OF THE PRESENT CASE INDICATE THAT TH SONG WHICH THE ASSESSEE WAS PERMITTED TO RECORD IN THE CASSETTE WAS IN THE NATURE OF A BASIC RAW MATERIAL. THE RECORDED CASSETTE CONSISTED OF THE CASSETTE AND TAPE ON WHICH THE MUSIC WAS ITA NO.910/MDS/ 2011 9 RECORDED. THEREFORE THE PRODUCTION OF THE RECORDED CASSETTE CANNOT BE COMPLETE UNLESS THE MUSIC IS RECORDED IN THE CASSETTE AND TOGETHER IT FORMS THE FINISHED PRODUCT. THE ROYALTY IS PAID ON THE PRICE OF EACH CASSETTE SOLD AND IS THEREFORE PRICE PAID FOR THE RAW MATERIAL EMBEDDED IN THE CASSETTE. THUS THE ROYALTY PAID GOES INTO THE COST OF PRODUCTION AND VARIES WITH THE QUANTITY OF CASSETTES PRODUCED. EVEN THOUGH THE LICENCE HAS BEEN GIVEN FOR THE DURATION OF THE COPYRIGHT THE MANUFACTURE AND SALE OF THE CASSETTES ITSELF WILL DEPEND UPON THE POPULARITY OF THE SONGS WHICH IN THE CASE OF FILM SONGS MAY NOT LAST EVEN A YEAR. THUS THE RECURRING PAYMENT OF ROYALTY IS DEPENDENT UPON THE PRODUCTION AND SALE OF CASSETTES RECORDING THAT PARTICULAR SONG AND THE LIABILITY IS THEREFORE UNCERTAIN AND VARIABLE. SUCH AN UNCERTAIN AND VARIABLE PAYMENT CANNOT BE REGARDED AS A CAPITAL EXPENDITURE. EVEN IF WE APPLY THE TEST OF ACQUISITI ON OF PROFIT MAKING APPARATUS AS AGAINST COST OF PERFORMING INCOME EARNING OPERATION WE FIND THAT THIS FALLS UNDER THE SECOND CATEGORY. IF THE ASSESSEE HAD STEPPED INTO THE SHOES OF THE ORIGINAL OWNER AS AN ASSIGNEE AND EARNED INCOME BY GRANTING LICENCES OF THE COPYRIGHT THEN IT WOUL D HAVE BEEN A CAPITAL OUTLAY. BUT AS LONG AS THE ITA NO.910/MDS/ 2011 10 ASSESSEE ITSELF MANUFACTURES THE CASSETTES AND PAYS ROYALTY DEPENDING UPON THE QUANTITY OF CASSETTES MANUFACTURED THE OUTLAY IS ONLY FOR THE INCOME EARNING OPERATION. THEREFORE WE ARE FULLY CONVINCED THAT THE EXPENDITURE LAID OUT DID NOT GIV E THE ASSESSEE ANY ENDURING BENEFIT AND RESULTED ONLY IN A REVENUE EXPENDITURE. MOREOVER THE OUTLAY WAS IN CONSONANCE WITH THE ACTUAL PRODUCTION AND THEREFORE A PROPER INPUT OF THE INCOME EARNING OPERATION. THUS IT WAS CLEARLY A REVENUE EXPENDITURE. WE FIND THAT SIMILAR VIEW HAS BEEN TAKEN ON IDENTICAL FACTS BY THE DELHI BENCH OF THIS TRIBUNAL IN THE CASE OF SUPER CASSETTES INDUSTRIES (P) LTD. IN ITA NO.3108 OF 1988 DATED 30.03.1992. 10. SIMILAR VIEWS WERE TAKEN BY THE KOLKATA AND MUM BAI BENCHES IN M/S. GRAMOPHONE CO. OF INDIA LTD. AND M/S. VENUS RECORDS & TAPE MFG. CO. RESPECTIVELY. IN THE CASE OF TIPS CASSETTES & RECORD COMPANY(SUPRA) THE MUMBAI BENCH OF THIS TRIBUNAL AFTER CONSIDERING THE TRIBUN AL JUDGEMENTS OF MUMBAI DELHI KOLKATA & CHENNAI BENC HES OBSERVED AS UNDER:- ITA NO.910/MDS/ 2011 11 IN NUTSHELL THE TRIBUNAL HELD THAT THE ASSESSEE WAS A DEALER OF MUSIC AND THE NATURE OF CAPITAL OR REVENUE VIS--VIS VARIOUS EXPENDITURE HAS TO BE CONSIDERED ON THIS POINT. SINCE THE ASSESSEE WAS DEALER IN MUSIC THE MASTER PLATE OR IN TURN THE RIGHTS WHICH ENABLE THE ASSESSEE TO OBTAIN THE MASTER PLATE (ASSIGNMENT OF COPYRIGHTS) BECOME RAW MATERIAL OF THE ASSESSEE. THE ASSESSEE SELLS MUSIC PURCHASED ON MASTER PLATE AND TRANSMITS ON A DIFFERENT DEVICE CALLED CASSETTE OR RECORD. THE RAW MATERIAL I.E. MASTER PLATE IS INTEGRAL PART OF THE PROFIT EARNING PROCESS AND NOT THE CAPITAL FIELD. UNDER THESE CIRCUMSTANCES THE TRIBUNAL HELD THE SAME TO BE REVENUE IN NATURE. 11. WE FIND THAT THE ISSUE INVOLVED IN THE PRESEN T CASE IS IDENTICAL TO THAT OF THE ABOVE REFERRED CASES. THER EFORE RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THIS TRIBUNAL IN THE ABOVE CITED CASES WE ARE OF THE FIRM OPINION THAT THE LEARNED CIT HAS ERRED IN COMING TO THE CONCLUSION THAT THE EXPENDITURE INCURRED BY THE ASSESSE/APPELLANT IN AC QUISITION OF AUDIO COPY RIGHTS AND CDS & DVD RIGHTS ARE NOT R EVENUE EXPENDITURE AND HAVE TO BE CAPITALIZED. 12. THE CIT HAS FURTHER INVOKED THE PROVISIONS OF S ECTION 263 OF THE ACT ON THE PREMISE THAT ASSESSMENT ORDER DATED 30.10.2008 FOR THE ASSESSMENT YEAR 2006-07 PASSED B Y THE ITA NO.910/MDS/ 2011 12 ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF THE REVENUE. AFTER GOING THROUGH THE FACTS OF TH E CASE AND FOLLOWING THE VIEW TAKEN BY THE CO-ORDINATE BENCHES OF THE TRIBUNAL WE FIND THAT CIT WAS NOT CORRECT IN HOL DING THAT THE ASSESSMENT ORDER IS ERRONEOUS. FOR INVOKING THE PRO VISIONS OF SECTION 263 THE TWIN CONDITIONS NAMELY I) ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVI SED IS ERRONEOUS; AND II) THE ORDER OF THE ASSESSING OFFICER IS PREJUDICI AL TO THE INTEREST OF THE REVENUE. HAVE TO BE SATISFIED. IF ONE OF THE ABOVE CONDITION S IS ABSENT THE PROVISIONS OF SECTION 263(1) CANNOT BE INVOKED. IN THE INSTANT CASE THE FIRST CONDITION AS MENTIONED ABOVE IS NOT SATISFIED. THE ORDER PASSED BY THE ASSESSING OFFICE R WHICH HAS BEEN REVERSED BY THE CIT IS NOT ERRONEOUS. 13. THE HONBLE SUPREME COURT IN THE CASE OF MALABA R INDUSTRIAL CO.LTD. VS. CIT REPORTED AS (2000) 243 ITR 83(SC) HAS HELD AS UNDER:- ITA NO.910/MDS/ 2011 13 THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE RE VENUE HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORD ER PASSED BY THE ASSESSING OFFICER. EVERY LOSS OF REVE NUE AS A CONSEQUENCE OF AN ORDER OF THE ASSESSING OFFIC ER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS O F THE REVENUE. FOR EXAMPLE WHEN AN INCOME TAX OFFICER ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND I T HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME TAX OFFICER HAS TAKEN ONE V IEW WITH WHICH THE COMMISSIONER DOES NOT AGREE IT CANN OT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY THE ITO IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD BY TH IS COURT THAT WHERE A SUM NOT EARNED BY A PERSON IS ASSESSED AS INCOME IN HIS HANDS ON HIS SO OFFERING THE ORDER PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL BE ERRONEOUS AND PREJUDICIAL TO T HE INTERESTS OF THE REVENUE. 14. IN THE PRESENT CASE THE ASSESSING OFFICER IN H IS ASSESSMENT ORDER PASSED THE ORDER OF NIL ASSESSED I NCOME AFTER GOING THROUGH THE RECORDS. THE CIT HAS FAILED TO FOLLOW THE WELL SETTLED LAW LAID DOWN BY THE TRIBUNAL IN S EVERAL CASES DISCUSSED ABOVE. THE EXPENDITURE INCURRED BY THE A SSESSEE ITA NO.910/MDS/ 2011 14 FOR ACQUIRING AUDIO COPYRIGHTS AND CD DVD RIGHTS I S REVENUE IN NATURE AND THUS HAS TO BE ALLOWED AS SUCH. IN VI EW OF THE ABOVE FINDINGS WE HAVE NO HESITATION TO SET ASIDE THE ORDER OF THE CIT AND RESTORE THE ORDER OF THE ASSESSING OFFI CER. 15. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH 2012. SD/- SD/- (ABRAHAM P.GEORGE) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI DATED THE 30 TH MARCH 2012. SOMU COPY TO: (1) APPELLANT ( 4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.