ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
IN THE INCOME TAX APPELLATE TRIBUNAL
"A" Bench, Mumbai
Before Shri B.R. Mittal, Judicial Member and
Shri B. Ramakotaiah, Accountant Member
ITA No.2445/Mum/2009 : A.Y 2003-04
ITA No.2970/Mum/2010 : A.Y 2003-04
ITA No.2971/Mum/2010 : A.Y. 2004-05
ITA No.2446/Mum/2009 : A.Y. 2005-06
Shri Ashwin M. Savani, Vs. ACIT 11(1)
5-B Feltham House, J.N. Mumbai
Heredia Road, Bellard Estate,
Mumbai 400001
PAN: AAFPS 4656 P
(Appellant) (Respondent)
Assessee by: Shri Y.P. Trivedi &
Mrs.Rupal Vora
Department by: Ms. Neeraja Pradhan, DR
Date of Hearing: 27/08/2012
Date of Pronouncement: 05/10/2012
ORDER
Per B. Ramakotaiah, A.M.
These are assessee's appeals against the orders of the CIT
(A)-XI Mumbai in respective assessment years. Since common
issues are involved in this group of appeals, they were heard
together and decided by this common order.
2. We have heard the learned Counsel and the learned DR and
their arguments were incorporated wherever necessary. Assessee
also placed paper book for the assessment year 2005-06 and also
paper book for assessment year 2003-04 along with respective case
law and chart indicating the issues involved in these appeals.
No.2445/Mum/2009 - A.Y 2003-04
3. In this appeal assessee has raised eleven grounds. Ground
Nos.1 to 4 pertains to the issue of disallowance of interest income.
Ground Nos.5 to 7 in respect of education expenses of assessee's
son and Ground Nos. 8 to 11 pertain to the addition made in
respect of personal drawings.
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
4. Ground Nos. 1 to 4: Issue of disallowance of interest income:
5. Assessee is in the business of export of readymade garments
and films. He has claimed an amount of `.22,46,118/- as interest
expenditure in the business of export. As assessee's balance sheet
indicated that assessee has advanced interest free amounts to an
extent of `.72,76,060/-, AO asked why proportionate interest could
not be disallowed out of the interest claimed. It was the submission
that assessee has received interest free loans and advanced interest
free loans out of the funds mostly from the family members except
in two/three outside loans. It was the submission that his own
credit balance in the capital account is to the tune of `.91.76 lakhs
and unsecured loans were received from his father for which no
interest was paid. AO without seeing the nexus of the borrowed
funds and loans & advances given estimated 12% interest
chargeable on interest free loans at `.8,73,127/- and disallowed the
same. Before the CIT (A) assessee reiterated the same and
submitted that interest paid to the Bank was for the purpose of
packing credit in the export business and assessee has borrowed
money from Banks only for the purpose of business. It was further
submitted that interest free advances have come down from `.98.65
lakhs as on 31.3.2002 to `.72.76 lakhs in this year, whereas the
unsecured loan received have increased from `.12.35 lakhs to
`.20.96 lakhs in addition to assessee's own capital. The CIT (A)
however, following the rationale of the decision in the case of K.
Somasundaram vs. CIT, 233 ITR 939 (Mad.) and Phalton Sugar
Works Ltd vs. CIT, 208 ITR 989 (Bom.) confirmed the proportionate
disallowances and advances given stating that the same was not
incurred for the purpose of business.
6. The learned Counsel referring to the paper book, more
particularly to the interest details placed from page Nos.3 to 6
submitted that the entire amount of interest claimed to the tune of
`.22,46,118/- was on account of moneys borrowed from Banks in
the form of packing credit, bill discounting and overdraft used for
working capital requirements. He referred to the statement of the
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
Bank interest to submit that most of the amounts are towards
packing credit, margin moneys and bills discounting. It was further
submitted that overdraft was used exclusively for the purpose of
business. The margin money deposited was for availing export
credit and interest thereon to the extent of `.61,635/- was also
offered as income. It was further submitted that assessee has
turnover of more than `.8 crores and OD is to an extent of `.2.45
crores which is 30%. It was also further submitted that these
advances were given in earlier years and during the year it has
come down, whereas interest free amount taken has increased
during the year. It was also further submission that there is no
such disallowance either in the previous year or in the subsequent
year on account of interest free advances. The learned DR however,
submitted that assessee has advanced funds interest free.
Therefore, disallowance was correctly made by AO. He relied on the
facts as stated by AO and the CIT (A).
7. We have considered the issue. As far as the disallowance of
interest by AO is concerned, we are of the opinion that AO has
mistakenly disallowed the interest just because there are advances
given to the family members free of interest. As seen from the
submissions enclosed in the paper book, assessee has proprietary
capital account to the extent of `91.76 lakhs and interest free
unsecured loans to an extent of `20.96 lakhs totaling to `1.12
crores. Assessee also had investments of `43.60 lakhs sundry
debtors to an extent of `2.89 crores and cash and bank balance to
an extent of `29.64 lakhs. Closing stock also involved at `65.34
lakhs. Therefore, moneys advanced interest free to the family
members and other concerns, which has come down from `98.65
lakhs to `72.76 lakhs during the year, cannot be equated with the
funds availed from the Banks for the purpose of business.
8. We have also perused the banking statements placed in the
paper book. Most of the interest amounts are either for the foreign
bills discounted or packing credit availed. As rightly submitted
assessee is available overdraft a/c, packing credit a/c and bill
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
discounting facility with the Punjab National Bank. The packing
credit is sanctioned by the banks against the export orders where
the Bank finances the maximum 75% of the order value. There is no
dispute with reference to assessee's export business and the entire
interest as seen from the statements filed is only pertaining to bill
discounting, packing credit and few amounts of OD charges. These
amounts cannot be related to the advances made by assessee to his
family members out of his personal finances. Moreover the advances
were made in earlier years. Since the interest claimed is only on OD
and packing credit and bill discounting, we are of the opinion that
there is no need for disallowing any amount just because assessee
in the balance sheet has shown some advances to some family
members/ concerns. AO has not examined the nexus of the
borrowed funds with that of advance given for non business
purpose and in our view certainly not examined the interest
statement which clearly indicate that the Bank interest paid and
claimed by assessee is only towards business purpose in the
business of export undertaken by assessee. In view of this as there
is no nexus between the borrowed funds used in the business to the
interest free advances paid by assessee, we are of the opinion that
no disallowance is called for on the facts. Moreover, there is no such
disallowance either in the earlier years or in the later year on
similar facts. Considering these aspects, we allow assessee's
grounds and direct AO to delete the disallowance of interest so
made. Grounds are allowed.
9. Ground Nos. 5 to 7 pertains to the claim of education
expenses of assessee's son. AO disallowed the amount stating as
under:
"4. A perusal of the details of the administrative expenses
of the assessee reveals that an amount of Rs. 8,25,375/-
has been debited towards educational expenses. The
assessee was asked to explain the relevance and
justification of the claim of this expenditure as for
business purpose vide this office letter dated 8/03/06. In
response to this assessee vide its letter dated 22/03/06
has submitted as follows:
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
"Education expense is incurred for Mr. Bhavin
Savani, B.Com from Sydenham College affiliated to
Bombay University - employee of the company -
who has gone to London for his post graduate
course in Management and Textile. His acquired
knowledge in the field of Management and Textile
can be immense useful to the company. we are in
the export of Textile Garments for last 15 years.
Indian Government has opened the Indian economy
and we are facing tough competition from other
countries like China, Korea etc. At present in this
competitive world only the fittest person will
survive. We have to sharpen our techniques and
method of doing business. World is changing very
fast. New technicians for doing business is very
essential in this ever changing economy. The
globalization of Indian economy has forced us to
arm our employee with latest technology and
knowledge. By doing this we can not only
withstand the competition but also increase our
share in this ever changing global business. So
education expenses incurred on Mr. Bhavin Savani
is nothing but business expenses, which will
definitely give very good return in the near future.
So this expenses are incurred are for the
furtherance of our business and same is allowable
as business expenses. It was held in Argade
Shyam & co. (ITA Nos. 742 & 743/B/85 reported in
CTR Vol. 72, issue 37 page 78) education expenses
financed by the firm to a partner who is closely
related to other partner are allowed as allowable
expenses"
The facts of the case is that Mr. Bhavin Savanl, on whom
the educational expenditure is stated to have been incurred
by the firm, is the son of Mr. Ashwin M. Savani, proprietor
of M/s. Bhavin International. Mr. Bhavin Savani after
completion of his graduation has been sent to post graduate
study in Management to London. In this case, Mr.Bhavin
Sawani was sent for higher studies by the assessee as a
father and not because he is the employee of the assessee.
The assessee has relied upon the ITAT decision in the ease
of Argade Shyam & Co., in which the educational
expenditure on the partner of the firm has been treated as
allowable by the ITA T. However, the facts of that case is
that the person on whom the educational expenses have
been made was a partner of the firm and there existed an
agreement in the partnership that an educational expenses
of partner would be met by the firm. Moreover, there was a
clause in the agreement that the partner would serve the
firm for five years after completion of the course and in case
of non fulfillment of the terms, monetary compensation
would have to be made by the partner. In the assessee's
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
case none of these facts are in existence and the assessee
has sent his son for post graduate studies, as any father
would have been opted to in the normal course as an
Obligation of a father to a son. The expenditure incurred on
studies of the son of the proprietor of the firm cannot be
treated as incurred wholly and exclusively for the purpose
of business, though for the sake of sanctity, the son might
have been enrolled as an employee. Under the
circumstances educational expenses of Rs. 8,25,375/-
claimed by the assessee is treated as personnel
expenditure and is not an allowable expenditure u/s.37(1) of
I.T. Act".
10. The CIT (A) confirmed the same by stating as under:
"4. Ground No.2 deals with addition of `.8,25,375/- being
the education expenses of the appellant's son. AO has
dealt with this issue at Para 4 of the assessment order.
The issue was discussed during the assessment
proceedings. The appellant contended that Mr. Bhavin
Savani graduated in commerce from Sydenham college
and went to London for a Post Graduate course in
Management and Textile. He was an employee of the
company. His knowledge acquired in England would be
of immense use to the company. It was therefore, a
business expense. Such contentions did not find favour
with AO. AO has stated that Mr. Bhavin Savani was the
son of Mr. Ashwin Savani, Proprietor of M/s Bhavin
International. On completion of his Graduation course, he
was sent for Post Graduation studies. This was so
because Mr.Bhavin Savani was the son of Mr. Ashwin
Savani and not because he was the employee of the
appellant.
4.1. I have considered the rival submissions and the
materials on record. We have noted the facts. Mr. Bhavin
Savani is the son of Mr. Ashwin Savani. Bhavin Savani
completes graduation in Mumbai and goes to England for
Post Graduation. This is a normal progression of Mr.
Bhavin's career as a student. Mr. Bhavin Savani happens
to be the son of Mr. Ashwin Savani. Mr. Ashwin Savani
sent his son in a normal course for Post Graduate
Studies. His studies could, as well, been in India.
Incidentally, in this case, it was in England. I do not see
any business proposition being made of expenses
relating to such studies abroad to be allowed as
expenses. There is nothing on record to suggest that other
employees were also sent for such education abroad. It
should rightly have been post-tax affair of a father. The
disallowance deserves to be upheld".
11. Learned Counsel referring to the claim of educational
expenses submitted the following details in support of the claim.
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
"Details of UK Education:
Date of joining Bhavin April 2002 to August 2002
International
Amount of salary drawn `.5,000/- p.m.
Nature of work Accounts Assistant &
Merchandising Assistant, would
help in internal audits, weekly cash
flow statements, maintain stocks,
help in sourcing materials and
accessories along with senior
merchandisers, attend buyer
meetings.
Date of commencement of MBA September, 2002
Date of completion of MBA September, 2003
Date of joining signature 23rd June, 2003 to 30th September,
Brands PLC 2003
Date of return to India October, 2003
Date of rejoining Bhavin November 2003 to date
International
Nature of work Fund flow and cash flow planning,
internal audits, statutory audits,
production planning and
execution, overseeing work of
merchandisers, buyer
communication to develop season
and grow business etc.
Amount of salary drawn `.7500/- p.m. (till Jan 2007)
Amount of salary drawn Rs.10,000/- (From February 2007
to till date)"
12. On a specific query whether any other persons were
sponsored by assessee for higher education, it was submitted that
no other person was sponsored. On seeing that Shri Bhavin Savani
served in a foreign company between June 2003 to September,
2003, whether any amounts received thereon have been accounted
as income of assessee, it was submitted that no such amounts were
accounted as income even though some stipend was received by Mr.
Bhavin. The learned Counsel in the course of the arguments relied
on the following case law:
i) Sakal Papers Pvt. Ltd. vs. CIT 114 ITR 256 (Bom)
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
ii) CIT vs. Ras Informational Technologies (P) Ltd 305
Taxman 158 (Kar. High Court) (2011).
iii) ACIT vs. P.C. Hathi 86 TTJ 306 (Ahd. Tribunal)
iv) CIT vs. Kohinoor Paper Products 226 ITR 220 (MP)
v) Krishna Fabrications Ltd vs. JCIT (2010) 192 Taxman
287 (Kar.)
vi) Sasson J. David & Co, Pvt. Ltd vs. CIT 118 ITR 261
(SC)
vii) CIT vs. Malayalam Plantations Ltd 53 ITR 140 (SC)
viii) CIT vs. Delhi Safe Deposit Co. Ltd -1 33 ITR 756 (SC)
13. We have considered the issue and the reliance placed on
various case laws. Even though the learned Counsel relied on the
case law which is in favour, there are equal number of cases in
which such education expenses were not allowed. The case which
assessee mainly relied is in the case of Sakal Papers Pvt. Ltd vs. Cit
114 ITR 256 (Bom.). In that case the issue before the Hon'ble
Bombay High Court was that in the absence of any agreement or
bond the expenditure is allowable or not. In that context the Hon'ble
Court considered that merely because there is no appointment or
contract or bond taken from the person, the expenditure which was
otherwise properly allowable cannot be disallowed. As seen from the
facts of this case assessee has not sent any other person for
training and immediately after completing his graduation from local
college, he was taken as an employee for a nominal sum of `.5000/-
p.m. sponsored for a MBA course abroad. The facts more or less fall
under the judgment of the Hon'ble Bombay High Court in the case
of CIT vs. Hindustan Hosiery Industries, 209 ITR 383. In the above
said case assessee firm was a family concern of mother and four
sons among whom V was one of the sons. Assessee firm carried on
the business of hosiery. During the previous year relevant to the
assessment year 1976-77, V was 21 years of age was sent to USA
for higher studies and had obtained a degree on management from
an American University. Firm claimed an expenditure of `.60,678/-
incurred for the training of V to be allowed as business expenditure.
The Income Tax Officer rejected the claim of assessee on the ground
that the expenditure was personal in nature and not a business
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
expenditure. The CIT (A) confirmed the order on the ground that
there is no nexus between the business of assessee and the
expenditure incurred. The Tribunal allowed the claim of assessee
and on a reference reversing the decision of the Tribunal, the
Hon'ble Bombay High Court held that the expenditure incurred by
assessee had no nexus with the business of assessee and was not
allowable as business expenditure. The facts are similar to the
present case. There are number of cases in which the expenditure
was not allowed as a business expenditure mainly on the reason
that there is no nexus with assessee's business or claimed expenses
of close relative for training abroad without there being a general
policy for all the employees. In this case also, no other person was
sponsored for education and as rightly held by the CIT (A) this
expenditure is person expenditure of assessee which he is claiming
as business expenditure. We further notice that the stipend received
abroad during his stay was not offered as income in assessee's
hands. The claim of the expenditure as business expenditure
cannot be allowed on the facts of the case. We uphold the findings
given by AO and the CIT (A) and reject the grounds accordingly.
14. Ground Nos. 8 to 11 pertain to the issue of addition on
account of personal drawings. AO on verifying assessee's balance
sheet and Profit & Loss A/c estimated the personal drawings at
`.25,000/- p.m. leading to an addition of `.3 lakhs. It was
submitted that assessee is living with his father in tenanted
premises and most of the expenditure was borne by the father and
addition so made was without any basis. CIT(A) reduced the
estimation from `.25,000/- to `.20,000/-.
15. After considering the rival submissions, we are of the opinion
that there is no need for making any addition on this account. The
personal drawings debited to capital accounts are to the extent of
`.6,46,763/- which comprises of cash withdrawals to an extent of
`.4,76,177/- and credit expenses of `.1,70,586/-. Considering the
fact that no estimation was made on account of drawings in
previous years or in subsequent years and on considering that the
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
amount claimed is a reasonable, we are of the opinion that there is
no need for estimating any personal expenditure. Accordingly the
addition of `.2,40,000/- sustained by the CIT (A) stands deleted.
16. In the result, appeal in ITA No. 2445/Mum/2009 is partly
allowed.
ITA No. 2971/Mum/2010, AY 2004-05
17. Assessee has raised two grounds in this appeal one is with
reference to disallowance of expenditure and the second one being
the claim of expenditure on education of son. In the course of the
arguments, Ground No.1 was not seriously argued. Therefore, this
ground on disallowance of expenditure being personal in nature is
rejected. Ground No.2 is on the issue of claim of education expenses
of `.5,57,865/- on assessee son abroad as business expenditure.
This issue is considered in Ground No.5 to 7 in assessment year
2003-04 in ITA No. 2445/Mum/2009 above. For the reasons stated
therein, we uphold the order of AO and the CIT (A) and reject
assessee's ground.
18. In the result appeal in ITA No.2971/Mum/2010 is treated as
dismissed.
ITA No: 2446/Mum/2009 - Assessment year 2005-06:
19. Assessee has raised fourteen grounds on various additions
made by AO. Ground Nos. 1 to 8 pertains to an addition of
`.91,42,557/- for non receipt of confirmation from various
suppliers. Ground Nos. 9 to 11 pertains to confirmation of addition
of `.5,12,538/- under section 69C on account of addition in the
balance outstanding to suppliers on confirmations received. Ground
Nos. 12 to 14 is with reference to the addition on account of AIR
information of `.11,40,289/-.
20. AO made verification of the suppliers and account balances.
On the reason that assessee has not reconciled various amounts
nor under inquiry made under section 133(6) suppliers or creditors
have not confirmed the transactions, the addition of first two
amounts were made. The addition of `11,40,289/- was on the basis
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
of the information received through AIR that assessee made sales to
Discovery Communications of India and HSBC and Standard Chart.
Inspite of assessee's explanation, AO and the CIT (A) confirmed the
addition.
21. Before us the learned Counsel, referring to the paper book
filed running to pages 139, submitted that assessee has furnished
the various reconciliation statements/confirmations of party
accounts in Annexure-A which was not considered. Further
assessee also reconciled the statement/confirmation of party
accounts in Annexure-B from pages 92 to 134. It was submitted
that even though the necessary details were placed on record,
neither AO nor the CIT (A) went into reconciling the same and
confirmed the amounts. It was further submitted that with
reference to the AIR information it was assessee's stand that they
have sold items to Discovery Communication and the amounts were
shown under local sales and also shown the payment received in
Standard Chart Bank and EXIM Bank after reconciliation of various
transactions. It was submitted that even though assessee has
reconciled various amounts, AO and the CIT (A) not considered the
same.
22. We have considered the issue and examined the paper book
and orders of the authorities. As seen from the orders, just because
some confirmations have not been received from the parties, AO
disallowed the entire amount under various heads. Assessee
furnished lot of details to both AO as well as to the CIT (A) and the
CIT (A) surprisingly did not admit any additional evidence on the
reason that sufficient opportunity was given to assessee and
assessee did not furnish the suppliers confirmations and on that
reason the CIT (A) confirmed. After considering the facts and the
reconciliations placed on record, we are of the opinion that this
issue require examination by AO afresh. AO is advised not to get
prejudiced by the earlier orders and examine the issue on facts
afresh. Assessee should be given due opportunity to explain its
stand. In case there is no explanation from assessee after giving due
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
opportunity, then AO is free to make the conclusions as required on
the facts of the case. However, when assessee is furnishing the
necessary confirmation, they cannot be simply ignored for the sake
of making addition as was done in this case. With these directions
the issues in this appeal are restored to the file of AO to do the re
assessment de novo as per law and facts. The orders of AO and
CIT(A) are set aside.
23. Appeal in ITA No. 2446/Mum/2009 is allowed for statistical
purposes.
ITA No.2970/Mum/2010 A.Y 2003-04
24. This appeal is on the issue of levy of penalty under section
221(1). AO levied penalty of `.57,600/- being 10% of the amount of
tax payable by assessee. The assessment in this case was completed
on a total income of `.26,81,310/- against the return income of
`.6,69,980/- raising a demand of `.8,87,943/-. Assessee asked for
adjustment of refund of `.3,15,000/- which has become due to
assessee being interest on seized cash. The demand payable has
been reduced to `.5,76,667/-. After issuing reference to TRO and
attaching the Bank A/c, AO levied penalty of `.57,600/- which the
CIT (A) confirmed on the reason that assessee has no sufficient
reasons not to comply with the tax demand.
25. It was the submission that the tax demand raised was three
times the tax on income offered by assessee and after adjustment of
tax refund the 50% of the demand was stayed. Therefore, there is
no need of levy of penalty and request for deleting the penalty.
26. We have considered the issues and facts of the case. In ITA
No.2445/Mum/2009, we have considered the additions made by AO
and to the extent of disallowance of interest and on addition being
less personal drawings we have given relief. If this order is
implemented, we do not see any further demand raised from
assessee over and above the amount due/ paid/ adjusted so far.
Since the penalty was prematurely levied when the demand has not
yet been crystallized, we are of the opinion that levy of penalty
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ITA Nos.2445 2970 2971 2446 Ashwin M Savani Mumbai
under section 221(1) is little premature and also harsh. Therefore,
the penalty is hereby cancelled. AO is free to consider levy of
penalty if any, after giving effect to the ITAT order considering the
facts of the case afresh. With these observations, the penalty levied
under section 221(1) by the order dated 22-03-2007 is hereby
cancelled.
27. In the result, appeal in ITA No: 2970/Mum/2010 is allowed.
28. In the result appeals in ITA No. 2445/Mum/2009 is partly
allowed, in ITA No: 2971/Mum/2010 is treated as dismissed,
appeal in ITA No. 2446/Mum/2009 is allowed for statistical
purposes and in ITA No. 2970/Mum/2010 is allowed.
Order pronounced in the open court on 5th October, 2012.
Sd/- Sd/-
(B.R. Mittal) (B. Ramakotaiah)
Judicial Member Accountant Member
Mumbai, dated 5th October, 2012.
Vnodan/sps
Copy to:
1. The Appellant
2. The Respondent
3. The concerned CIT(A)
4. The concerned CIT
5. The DR, "A " Bench, ITAT, Mumbai
By Order
Assistant Registrar
Income Tax Appellate Tribunal,
Mumbai Benches, MUMBAI
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