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Income Tax Appellate Tribunal, “E” BENCH, MUMBAI
Before: S/SHRI B.R.BASKARAN & AMARJIT SINGH
आदेश / O R D E R
PER AMARJIT SINGH, JM:
This order shall disposed of both the appeals filed by the assessee as well as by the revenue against the order dated 12.02.2014 passed by the Commissioner of Income Tax (Appeals)-1, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the assessment year 2005-06. 2. The Assessee has taken following grounds of appeal:- 1A. On the facts and in the circumstances of the case and in law, the Learned Assistant Director of Income Tax (herein after referred to as ‘ADIT’) has erred in reopening assessment u/s.147 of the Income Tax Act, 1961 [hereinafter referred to as CIT(A)] has erred in confirming the action of the learned ADIT. The reopening of assessment, being bad in law, the assessment order passed u/s. 143(3) r.w.s. 147 of the Act, be quashed. 1B. On the facts and in the circumstances of the case and in law, the Learned CIT(A) has erred in holding in para 4.5 of the appellate order that “The argument of the appellant that required details including for capital expenditure, depreciation and other expenses were filed at the time of original assessment, is not supported by any specific evidence on this behalf”. The appellant states and submit that the appellant has filed required details at the time of original assessment and as such the statement of the CIT(A) be quashed and the reopening of the assessment be held bad in law and the reassessment order be quashed. 1C. On the facts and in the circumstances of the case and in law, the Learned CIT(A) has erred in holding in para 4.6 of the appellate order that “….It cannot be said that the initiation of reassessment proceedings beyond four years were irregular to the extent that there was no failure on the
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part of the appellant to disclose material facts.” The appellant states and submits that the appellant has disclosed all material facts at the time of original assessment and as such the reopening of the assessment be held bad in law and the reassessment order be quashed.
1D. On the facts and in the circumstances of the case and in law, the Learned CIT(A) has erred in holding in para 4.7 of the appellate order that “The facts of the case reveal that the specific details of capital expenditure of Rs.2,35,89,290/- and the documentary evidence was not furnished at the time of original assessment. The appellant states and submits that the appellant has filed specific details and documentary evidence of capital expenditure was furnished at the time of original assessment and as such the reopening of the assessment be held bad in law and the reassessment order be quashed.
Without prejudice to Ground No.1, on the facts and in the circumstances of the case and in law, the Learned ADIT has erred in disallowing the amount of Rs.1,89,57,794/- being application of income on the objects of the Appellant Trust and the CIT(A) has erred in stating in para 6.3 of the appellant order that “It appears that the appellant has not furnished the details of expenditure/application before AO in the assessment or pre-assessment proceedings…….Under the circumstances, the amounts of Rs.2,35,89,290/- and capital expenditure of Rs.1,89,57,794/- claimed as expenses on objects of the trust are unverified and unsubstantiated” and held that onus is not discharged by appellant to claim expenses incurred for objects of trust and hereby confirmed the action of the learned ADIT. The Appellant states and submits that the appellant has filed complete details of expenditure during the assessment and pre assessment proceedings and before the CIT(A) and as such the Learned ADIT be directed to allow the amount of Rs.1,89,57,794/- applied on the objects of the Appellant Trust as deduction and reduce the total income accordingly. 3. Without prejudice to Ground no.1, on the facts and in the circumstances of the case in law, the Learned ADIT has
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erred in disallowing the amount of Rs.2,35,89,290/0 being capital expenditure incurred, being application of income on the object of the Appellant Trust and the CIT(A) has erred in stating in para 6.3 that “It appears that the appellant has not furnished proceedings…….Under the circumstances, the amounts of Rs.2,35,89,290/- and capital expenditure of Rs.1,89,57,794/- claimed as expenses on objects of the trust are unverified and unsubstantiated” and held that onus is not discharged by appellant to claim expenses incurred for objects of trust and thereby confirmed the action of the learned ADIT. The Appellant states and submits that the appellant has filed complete details of expenditure during the assessment and pre assessment proceedings and before the CIT(A) and as such the Learned ADIT be directed to allow the amount of Rs.2,35,89,290/-, being capital expenditure incurred, as application of income on the objects of the Appellant Trust as deduction and reduce the total income accordingly. 4. Without prejudice to Ground No.1, (a) On the facts and in the circumstances of the case in law, the Learned ADIT has erred in disallowing misappropriation of cash of Rs.11,00,000/-, on the ground that the same is not application of income on the objects of the Appellant Trust and the CIT(A) has erred in confirming the action of the learned ADIT stating that misappropriation of cash was not in the course of carrying out any charitable activity, that it points out lack of due diligence and that is seems to be an standalone occurrence and criminal misconduct. The Learned ADIT be directed be directed to allow the loss due to misappropriation of Rs.11,00,000/- as application of income on the objects of the Appellant Trust and reduce the total income accordingly. (b) Without prejudice to the above, on the facts and in the circumstance of the case and in law, the Learned ADIT has erred in disallowing the amount of Rs.11,00,000/- twice in the arriving at the total income and the CIT(A) has erred in not deciding the issue. (i) The Learned ADIT be directed to delete the extra disallowance of Rs.11,00,000/-
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(ii) The Learned CIT(A) be directed to decide the issue raised before him and reduce the total income accordingly. 5. Without prejudice to Ground No.1, on the facts and in the circumstance of the case and in law, the Learned ADIT has erred in not allowing the carry forward of deficit, being excess application of income on the objects of the Appellant Trust, of 2,60,60,563/- to subsequent years and the CIT(A) has erred in confirming the action of the learned ADIT. The Learned ADIT be directed to allow the carry forward of deficit of Rs.2,60,60,563/-. 6. Without prejudice to the above, on the facts and in the circumstances of the case and in law, the Learned ADIT has erred in not giving consequential adjustment of deficit (excess of application over income) carried forward from earlier years against income assessed for year under appeal. 7. Without prejudice to Ground No.1, on the facts and in the circumstances of the case and in law, the Learned ADIT has erred in charging the interest of Rs.56,12,287/- u/s. 56,12,287/- us/. 234B of the Act. The Learned ADIT be directed to delete the interest charged u/s.234B of Rs.56,12,287/- and reduce the income tax demand accordingly. 8. Without prejudice to Ground No.1, on the facts and in the circumstances of the case and in law, the Learned ADIT has erred in initiating penalty proceedings u/s. 271(1)(c) of the Act. The Learned ADIT be directed to drop the penalty proceedings.
The Revenue has taken following grounds of appeal:- 1. “That on the facts and in the circumstance of the case and in law, the ld. CIT(A) erred in allowing the claim of depreciation of Rs.67,27,916/-, relying on the decision of the Hon’ble Bombay High Court in the case of CIT Vs. Institute of Banking Personnel Services reported at 264 ITR
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110 (Bom) ignoring the ratio of Hon’ble Supreme Court judgments in the case of Escorts Ltd. Vs. Union of India (199 ITR 43) wherein Hon’ble Supreme Court has held that double deduction cannot be presumed if the same is not specifically provided by law, in addition to normal deduction. 2. That on the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in allowing the claim of depreciation, when the Delhi High Court in the case of Charnjiv Charitable Trust and Kerala High Court in the case of Lissie Medical Institutions Vs. CIT 76 DTR (Ker) 372 has decided the issue in the favour of the department after considering the decision of Hon’ble Supreme Court in the case of Escorts Ltd. (199 ITR 43) 3. The Appellant prays that, to the extent of above grounds, the order of the Commissioner of Income-Tax (Appeals) – I, Mumbai be set aside and that of the Assessing Officer be restored.
The assessment u/s. 143 (3) of the Income Tax Act, 1961( in short “the Act”) was completed accepting the status of the assessee as a Charitable Trust entitled for exemption u/s. 11 of the Act. Subsequently the assessment was reopened u/s. 147 of the Act by issuing notice u/s. 148 of the Act. The reasons for reopening are reproduced as under:-
“1. In this case the assessee has filed its return of income for A.Y.2005-06 on 31.10.2005 disclosing deficit of Rs.2,60,60,563/-. The assessment was completed u/s. 143(3) of the Act on 24.12.2007 accepting the deficit as returned.
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On perusal of the records it is noticed that in this case the accumulated surplus of 15% has already been claimed as exempt income under the express provision of section 11(1)(a) of the Act. The excess expenditure utilized for purchase of capital asset or towards funding excess expenditure over income (deficit) is wrongly claimed as application towards the object of the trust and this amount to claim of Double Deduction. The allowance of deficit in the assessment order is not in order in view of the specific provisions of section 11 of the Act which reads as under:-
Section 11(1) subject to the provision of sections 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income.
(a) income derived from property held under trust wholly for charitable or religious purposes in India and where any such income is accumulated or set apart for application to such purposes in India, to the extent to which the income so accumulated or set apart is not in excess of fifteen per cent of the income from such property.
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Since Section 11 of the I.T. Act, provides for deduction of expenditure incurred for the objects of the Trust as application from such income and does not specifically & expressly provide for double deduction on account of expenditure out of exempt income as it amounts to claiming a double deduction, which in view of the ratio of judgement in the case of 199 ITR 43 Escorts Ltd. Vs. Union of India and (1992) 65 TAXMAN 420 (SC) J.K.Synthetics Ltd. Vs. Union of India, cannot be allowed.
In this case in the assessment order the assessee’s claim of deficit of Rs.2,60,60,563/- was allowed and thereby excessive loss has been computed in this case. Thus income of the assessee has escaped the assessment in view of the Clause (c) (iv) of Explanation 2 to proviso to Sec 147 of the Act which reads as under:-
Explanation 2 – For the purpose of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:-
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…….
(c) where an assessment has been made, but-
(iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed.
It is further noticed that the assessee has claimed a depreciation on fixed assets amounting to Rs.67,27,916/- in addition to allowance of capital expenditure to the tune of Rs.2,35,89,290/-. The assessee has adopted the policy of claiming capital expenditure as application of income and also the depreciation on these capital assets as application of income, which in turn contravenes with the judgement of the Hon’ble Supreme Court in the case of Escorts Ltd. Vs. CIT 199 ITR 43 wherein the Hon’ble Supreme Court has clearly held that a double deduction cannot be allowed unless and until specifically provided by the Act. In the case of Dy.D.I.T. (Exemption) Vs. Lissie Medical Institutions (2010) 8 taxmann.com 82 (Cochin-ITAT) also it has been held that a charitable institution u/s. 12A of the Act is not
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eligible to claim depreciation in respect of capital assets, cost of which stands already allowed by way of application of income u/s. 11 on account of incurring capital expenditure towards and in furtherance of its objects. In the instant case, the assessee is claiming the capital expenditure as application of income and also the depreciation on these capital assets which tantamount to double deduction hence infringes with the aforesaid decision. In this case in the assessment order the assessee’s claim of the capital expenditure as application of income and also the depreciation on these capital assets has been allowed and thereby excessive depreciation was allowed to the assessee. Thus income of the assessee has escaped the assessment in view of the Clause (c)(iv) of Explanation 2 to proviso to section 147 of the Act which reads as under:-
Explanation 2 – For the purposes of this section, the following shall also be deemed to the cases where income chargeable to tax has escaped assessment, namely:-
(c) where an assessment has been made, but-
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(iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed.
It is further noticed that in the computation of income, assessee shown an amount of Rs.4,95,43,331/- as amount applied to charitable or religious purposes in India, which includes Rs.1,89,57,797/- as expenses on objects of the Trust. The details of the expenditure was furnished by the assessee during the course of assessment proceedings vide submission dated 26.10.2007 which shows that the amount of Rs.1,89,57,797/- includes an amount of Rs.11,00,000/- as cash misappropriation. The misappropriation of cash amounting to Rs.11,00,000/- is not allowable as expenses on the object of the trust. It is also seen that Earnest Money Deposit paid by the assessee which is refundable in nature, for the purchase of land at Navi Mumbai is also taken as expenditure to the tune of Rs.2,35,89,290/ and expenses on object of the trust Rs.1,89,57,794/-. However, the details of the spending of these amount along with the
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documentary evidence is not furnished by the assessee either with the return of income or during the course of assessment proceeding.
In this case in the assessment order the assessee’s claim of expenditure being payment of Earnest Money Deposit, misappropriation of cash amounting to Rs.11,00,000/-, capital expenditure to the tune of Rs.2,35,89,290/- and expenses on object of the trust Rs.1,89,57,794/- were allowed and thereby excessive allowance of expenses has been made in this case. Thus income of the assessee has escaped the assessment in view of the Clause (c)(iv) of Explanation 2 to proviso to section 147 of the Act which reads as under:-
Explanation 2 – For the purpose of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment namely:-
…………
(c) where an assessment has been made, but –
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(iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed.
In view of the forgoing I have reason to believe that the income of the assessee has escaped the assessment for the A.Y.2005-06. The cause of escapement of income within the meaning of section 147 of Income Tax Act, 1961, is failure on the part of the assessee to make full and true disclosure of the material facts as far as the above issues are concerned.
The sanction u/s.151(1) of the Income Tax Act, 1961, is solicited for issuance of notice u/s.148 of the Act, from the DIT(Exemption) as the assessment for the year under consideration has been finalized u/s.143(3) of Income Tax Act, and a period of four years have lapsed from the end of the relevant assessment year.”
ITA 1708/Mum/2014:-
GROUND NO:-1
The assessee has challenged the reopening u/s.147 of the Act and took the plea that income which has been shown in the return is
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not an escaped income and the assessment of the assessee has been completed u/s.143(3) of the Act and the notice has been issued after the expiry of four years which is not justifiable and the AO has not shown that the conditions prescribed in the proviso of section 147 of the Act are satisfied. Therefore, in the said circumstances the order passed by the learned Assessing Officer which has been confirmed by the learned CIT(A) in question is wrong against law and facts and is liable to be set aside. The first ground which has been taken by the assessee in connection with the reopening of the assessment is that the assessee claimed accumulated surplus of 15% as exempt income under the express provision of 11(1)(a) of the Act and the assessee also claimed deficit of Rs.2,60,60,563/- therefore, in this case excessive loss has been claimed, therefore, the Assessing Officer is of the view that the income of the assessee has escaped the assessment in view of the clause C(IV) of explanation 2 to proviso 2 section 147 of the Act. It is required to be seen that the reopening of the case of the assessee on this ground is justifiable or not. Whether the claim of accumulated surplus of 15% as exempted under the provision of 11(1)(a) of the Act and the claim of the assessee of deficit of Rs.2,60,60,563/- is amount to escaped income of assessee or not. It is not disputed that the assessment of the assessee was completed accepting the assessment u/s.143(3) of the Act on 31.10.2005 ascertaining for the entitlement of exemption u/s.11 of the Act. Subsequently, the assessment order was reopened u/s.147 of the Act
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and notice u/s.148 of the Act was also issued. It is to be seen whether claiming exemption to the extent of 15% on accumulated surplus u/s.11(1)(a) of the Act and claim of deficit to the tune of Rs.2,60,60,563/- is the income of escaped assessment or not. This matter of controversy has been decided in the assesee’s own case for the A.Y. 2007-08 in ITA No.5646/Mum/2011, Income Tax Appellate Tribunal which has been decided in favour of the assessee. The finding in the said order is hereby reproduced below:-
“With regard to Ground No.2 of appeal, the Assessing Officer observed that if the trust has not been left with surplus and there is deficit, then there can be no accumulation made. AO has stated that accumulation or setting apart of 15% of income has been allowed by the virtue of provision of section 11(1)(a) of the Act when assessee is not able to spend the entire amount and when the entire amount has been spent, there is not surplus left that can be accumulated. Aggrieved, assessee filed appeal before ld. CIT(A).
On behalf of the assessee, it was submitted that as per section 11(1)(a), the expenditure incurred by a trust or institute on the objects of the trust by way of application income derived from
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the property held for religious or charitable purposes is deductible from the income. It was submitted that there is no bar in law and there are no specific provisions in the Act which says that such deduction of 15% accumulation is allowable irrespective of whether 85% of the income have been applied to charitable purposes or not. Ld. CIT(A) after considering the submission of assessee stated that AO is not justified in denying the claim of the assessee for the accumulation of income and, accordingly, allowed the claim of the assessee. Being aggrieved, department is in appeal before the Tribunal.”
We observe that ld. CIT(A) has relied on the decision of Hon’ble Supreme Court in the case of A.I.N. Rao Charitable Trust (supra), wherein, it is held that exemption available u/s. 11(1)(a) i.e. 15% of income is unfettered and not subject to any conditions. In the case before us, assessee has claimed 15% accumulation u/s.11(1)(a) of the Act. Hence, we do not see any reason to interfere with the order of ld. CIT(A) and reject ground of appeal taken by department.”
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In view of the said order apparently claim of the assessee may have two views but the assessee nowhere concealed any particulars of income from the Assessing Officer or in the assessment which may be called as escaped income assessment. Moreover, the above said information had already been given in the returns. There is no new tangible material with the Assessing Officer to reopen the case. Specifically in the circumstances when the earlier income of the assessee had already been finalized in view of the provision u/s.143(3) of the Act. The case of the assessee nowhere fall within the proviso of section 147 of the Act. Therefore, in the said circumstances in view of the above mentioned decision passed by the co-ordinate bench of Mumbai it is quite clear that when both view can be taken then in the said circumstances this cannot be a ground to reopen the case u/s.147 of the Act. While reopening the case of the assessee no new material / information was with the Assessing Officer with regard to the income of escaped assessment. Accordingly, this ground which has been considered to reopen the case u/s.147 of the Act does not seem justifiable. Hence this issue is decided in favour of the assessee and against the revenue.
GROUND NO:-2
The ground no.2 which has been considered for reopening the assessment u/s.147 of the Act, is in connection with the disallowance of the deprecation of Rs.67,27,916/- which was considered as double
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discount. It was taken into consideration in view of the law settled in Escorts Ltd. Vs. Union of India 199 ITR 43. The said depreciation was desired to be allowed with capital expenditure to the tune of Rs.2,35,89,290/-. This ground has already been considered as not a good ground to reopen the case by the learned CIT(A) in view of the law settled in CIT Vs. Institute of Banking Personal Selection (IBPS) 2003 131 taxman 386. It is not in dispute that earlier the return of income was filed on 31.10.2005 which was completed u/s. 143(3) of the Act on 24.12.2007 whereas the notice u/s.147 of the Act was issued on 23.03.2011 after the expiry of four year. No doubt in the said circumstances the case of the assessee falls within the proviso of section 147 of the Act. It is also required to be seen whether any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make return u/s. 139 of the Act or in response to notice issued under subsection of section 142 of the Act or section 148 of the Act or to disclosed fully and truly all material facts necessary for his assessment for assessment year. No new tangible material was with the Assessing Officer to reopen the case. As discussed above the claim of depreciation alongwith revenue expenditure was allowable which cannot be a ground to reopening the case. Accordingly this issue is decided in favour of the assessee and against the revenue.
GROUND NO:-3
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Ground no. 3 is in connection with the claim of the assessee with regard to the capital expenditure of Rs.2,35,89,290/-. The contention of the assessee is that the necessary details and evidence were duly submitted before the Assessing Officer at the time of original assessment and nothing was concealed. Therefore the same cannot be the ground for reopening the assessment u/s. 147 of the Act. It is specifically asserted that the appellant trust furnished all the details and documentary evidence in support of expenses claimed during the assessment proceedings. After the scrutiny, DDIT passed the Assessment Order u/s. 143(3) of the Act dated 24.12.2007. The expenditure to the tune of Rs.1,89,57,794/- were considered as revenue expenditure of the trust and documentary evidence in this regard had already been submitted in support of the claim which have been allowed as deductions. No doubt in the said circumstances each and everything has been enumerated in the return along with necessary documents therefore this cannot be the ground to raise the provision u/s. 147 of the Act. No doubt with regard to the capital expenditure and revenue expenditure the claim has duly been mentioned by the assessee in the return. It can be viewed in accordance with law. How it can be escaped assessment is not understandable. Reliance placed upon 264 ITR 110. Moreover, it also came into notice that the details of the capital expenditure and revenue expenditure has duly been placed before Assessing Officer which are also on the file at page 36 to 45 of the paper book. So far as
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the claim regarding expenditure of Rs.11,00,000/- is concerned, the same has been misappropriate by the official of trust and in this regard the FIR has got been recorded and details of the FIR has duly been reflected by the assessee in his return and the documents attached therewith. We have arrived at this conclusion that no income is escaped assessment. Moreover the most important point which came into notice that the present case is of the A.Y.2005-06 and notice was issued after the expiry of four years on 23.03.2011 which also barred the jurisdiction of the authority to take the action u/s. 147 of the Act. When each and every thing has been disclosed by the assessee and nothing new material was with the Assessing Officer, therefore, in the said circumstances the reopening of the case u/s. 147 of the Act does not seems justifiable. Atleast reopening of the case there should be some material with the Assessing Officer which has not been disclosed by the assessee and that income has become the escaped income of assessment. Moreover the earlier assessment of the assessee was completed u/s. 143(3) of the Act and every details of the assessment was produced before Assessing Officer. The change of opinion is also not a good ground to reopen the case u/s.147 of the Act. In view of the above said circumstances, we are of the view that the reassessment u/s. 147 of the Act is without jurisdiction and is wrong against law and facts on this issue.
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We have discussed the grounds for reopening the assessment of the assessee u/s.147 of the Act. No new material was with the Assessing Officer to reopen the case u/s.147 of the Act. The documents which have been filed by the assessee were considered and in one of ground the Assessing Officer may have two opinions which cannot be considered as a good ground to reopen the case. The other two grounds have also been discussed above wherein the claim of the assessee found justifiable. Nowhere it came into the notice that the assessee was responsible to furnish the wrong details to which it can be presumed that the details furnished by the assessee has become escaped income of assessment. It is not in dispute that the notice u/s.147 of the Act was issued after the expiry of four years. The case of the assessee doesn’t fall in the proviso of section 147 of the Act. We have accordingly arrived at this conclusion that the grounds of reopening are wrong against law and facts. So far as the other grounds of the assessee are concerned, there is no need to decide these grounds because after the set aside of the order of u/s.147 of the act the decision on the grounds which may have been taken on merits would only be the academic exercise. Accordingly, the appeal of the revenue has also became infructuous in view of non-existence of order u/s. 147 of the Act.
Accordingly, appeal of the Assessee is hereby allowed and appeal of the Revenue is hereby dismissed.
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Order pronounced in the open court on 31st May, 2016
Sd/- Sd/-
(AMARJIT SINGH) (B.R.BASKARAN) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य/JUDICIAL MEMBER मुंबई Mumbai; �दनांक Dated : 31st May, 2016 MP MP MP MP
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT(A)- 4. आयकर आयु�त / CIT 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील�य अ�धकरण, मुंबई / ITAT, Mumbai