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INCOME-TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI STATEMENT SHOWING THE LIST OF THIRD MEMBER CASES PENDING AS ON 06.07.2012
July, 19th 2012
                 INCOME-TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI

          STATEMENT SHOWING THE LIST OF THIRD MEMBER CASES PENDING AS ON 06.07.2012


Sr        Appeal No.            Name of the          Bench                  Points involved            To whom assigned        REMARKS
No                               Assessee


     MUMBAI BENCH


1.   ITA No.                 M/s Kaira Can    S/Shri.              Reference dt. 25.11.2008 u/s Hon'ble Zonal Vice-           Fixed        on
     6987/Mum/2003           Company Ltd.     1. Sunil Kumar       255(4) of the Income Tax Act President                     23.07.2012
     ITA No. 5280 &                           Yadav, J.M.          made afresh by S/Shri. Sunil
     5281/Mum/2004                            2. V.K.Gupta, A.M.   Kumar Yadav, J.M. and V.K.
     A.Y. 1996-97 to 1998-                                         Gupta, A.M. is as under.
     99

                                                                   "1. Whether the impugned
                                                                   transactions of leasing out of
                                                                   assets to the assessee is a lease
                                                                   transaction or a financial lease?

                                                                   2. Whether the assessee can be
                                                                   held to be the owner of the asset
                                                                   acquired    under    the   above
                                                                   transactions and is entitled for
                                                                   depreciation over the said assets
                                                                   or assessee being a lessee is
                                                                   entitled to claim the lease rent
                                                                   paid to the lessor as a revenue
                                                                   expenditure?"







                                                                                                                          1
2.   ITA Nos. 525 to     Mrs. Sumanlata       S/Shri.                1. "Whether, non-issuance of the Zonal Vice-           Fixed on
     530/Mum/2008,       Bansal, Mumbai       1. R.S.Padvekar, J.    notice as provided in Sub.-sec.(2) President(MZ)       19.07.2012
     A.Ys.1999-2000 to                        M.                     to Section 143 of the I.T. Act in
     2004-05                                  2.B.Ramakotaiah,       the case of assessment framed
                                              A.M.                   u/sec.153A, in consequence of
                                                                     search under sec. 132, is merely
                                                                     an irregularity and the same is
                                                                     curable?"

                                                                     2. "Whether ,on the facts of the
                                                                     case, failure on the part of the
                                                                     Assessessing Officer (A.O.) to
                                                                     issue notice to the assessee as per
                                                                     provisions of Sub-sec.(2) to
                                                                     Section 143 shall have the effect
                                                                     of rendering the entire assessment
                                                                     framed u/sec. 153A of the Act as
                                                                     null and void?"

3.   ITA 5229/M/2004 &   M/s. Standard        S/Shri.                "Whether on the facts and Shri. R.S.Syal,A.M.          After the
     5303/M/2004         Chartered Bank       1.R.S.Padvekar,J.M.    circumstances of the case interest                     Disposal of MA
     A.Y. 1996-97                             2.Rajendra             income of Rs.73,92,16,611/- (Rs.
                                              Singh,A.M.             39,23,71,781 + Rs.34,68,44,830)
                                                                     is asseable to tax in the year under
                                                                     consideration?"


4.   ITA 210/Kol/2008    M/s. Shaw Wallace    S/Shri.                "Whether, on the facts and in the Hon'ble Vice-        Fixed on
     A.Y.2004-05         Financial Services   1.R.K.Gupta,J.M.       circumstances of the case, the President, (MZ)         01.08.2012
                         Ltd.                 2.Rajendra             assessment in the case of assessee
                                              Singh,A.M.             for A.Y. 2004-05 can be said to
                                                                     have been made on a non existent
                                                                     company and if so, whether the
                                                                     same can be quashed?"
5.   ITA 4808/M/10       M/s Technimount      S/Shri                 Whether in the facts & Shri R.S.Syal, AM               Fixed on
     ITA 5085/M/10       ICB (I) P.Ltd.       1. Promod Kumar,       circumstances of the case, the net                     13.07.12
     CO 78/M/11                               AM.                    margin realized from a transaction
                                              2. Vijay Pal Rao, JM   with an Associated Enterprise
                                                                     (AE) found and accepted at Arm
                                                                                                                        2
                                                                     Length Price (ALP) can be taken
                                                                     as a comparable being an internal
                                                                     comparable for computation of
                                                                     arm ALP of an international
                                                                     transaction with another AE?
     PUNE BENCH

1.   ITA               No. M/s Audyogik       S/Shri.                1. "In the facts and circumstances Zonal Vice-        Fixed on
     1712/PN/2007,         Shikshan Mandal,   1. Mukul Shrawat,      of the case, whether the property President(MZ)       27.07.2012.
     for A.Y. 2004-05.     Pune,              J.M.                   of the trust i.e. car, be held `made
                                              2.D. Karunakara Rao,   available' for the use of the
                                              A.M.                   trustee, specified person u/s 13(3)
                                                                     of the Income Tax Act 1961?"

                                                                     2. "In the facts and circumstances
                                                                     of the case, whether the
                                                                     expression `made available for the
                                                                     use of' trustee ipso facto be
                                                                     understood to have been deemed
                                                                     used or applied for the benefit of
                                                                     the said trustee, with or without
                                                                     the actual use or application of the
                                                                     property of the trust i.e. car for
                                                                     personal benefit of the trustee in
                                                                     view of section 13(2) of the
                                                                     Income Tax Act 1961?"

                                                                     3. "In the facts and circumstances
                                                                     of the case, whether the case of
                                                                     the assessee falls within the ambit
                                                                     of the provisions of clause (b) of
                                                                     section 13(2) of the Income tax
                                                                     Act 1961?"

                                                                     4. "If the answers to above
                                                                     questions at sr. No. (1) to (3) are
                                                                     affirmative, whether the denial of
                                                                     benefits of section 11 be restricted
                                                                     to such income of the trust used or
                                                                                                                       3
                                                                    applied directly or indirectly for
                                                                    the benefits of trustee or, in
                                                                    alternative, the total income of the
                                                                    trust is not entitled for the benefits
                                                                    of section 11 of the Act."

     DELHI BENCH

1.   ITA              No. Bhagwati Prasad      S/Shri.              "Whether, on facts             and Hon'ble                      Fixed on
     1868/Del/2011        Maheswari            1.I.P.Bansal,J.M.    circumstances of the case and in President,I.T.A.T.             20.07.2012
                                               2.B.K.Haldar, A.M.   law the impugned issue should be
                                                                    restored back to the Assessing
                                                                    Officer with a direction that both
                                                                    the assessee and Assessing Officer
                                                                    should comply with the directions
                                                                    given in the earlier order of the
                                                                    Tribunal dated 8th June,2007 or
                                                                    the same be decided against the
 


                                                                   appellant."

     LUCKNOW BENCH

1.   ITA No. 141,142,143   Ms Rajya Krishi     S/Shri               1."Whether" the CIT(A) has               Hon'ble Zonal Vice- Adj Sine die
     & 144/LKW/2009        Utpadan mandi       1. I.S.Verma,J.M.    jurisdiction  to    decide  the          President (As per
     C.O.No.06 to          Parishad, Lucknow   2. N.K.Saini, A.M.   assessee's petition for stay or          order dt.20.09.2011 of
     09/LKW/2009                                                    recovery of demand during the            the           Hon'ble
     A.Y.2001-02,2002-                                              pendency of assessee's appeal            President)        Shri
     03,2003-                                                       furnished under section 246A of          H.L.Karwa as Zonal
     04 &2006-07                                                    the Act?"                                Vice-President to hear
                                                                                                             as a Third Member."
                                                                    2. "If the CIT(A) has jurisdiction
                                                                    to decide the assessee's petition
                                                                    for stay of recovery of demend ,
                                                                    than under which provisions of
                                                                    law the CIT(A) will pass such an
                                                                    order i.e. what will be the nature
                                                                    or status of such order passed by
                                                                    the CIT(A)?"

                                                                                                                                4
                                                                  3. "Whether, such order (supra)
                                                                  passed by the CIT(A) is
                                                                  appealable before the Tribunal or
                                                                  not i.e. can such an order be
                                                                  appealed against before the
                                                                  Tribunal by way of an appeal
                                                                  under section 253 of the Act, or
                                                                  can be challenged only before the
                                                                  Hon'ble High Court by way of
                                                                  writ petition?"

                                                                  4. "If such an order(Supra) is
                                                                  found to be appealable before the
                                                                  Tribunal, then can the Tribunal
                                                                  entertain such an appeal against
                                                                  such order without there being
                                                                  appeal before it against the order
                                                                  of CIT(A) in appeal against the
                                                                  order of the Assessing Officer or
                                                                  other orders appealable under
                                                                  section 246A of the Act, as the
                                                                  case may be, for the reason that
                                                                  the CIT(A) has not preferred to
                                                                  decide the assessee's appeal
                                                                  pending before him?"

2.   ITA No.               M/s Zazsons       S/Shri.              "Whether, on the facts and the Zonal Vice-President            Adjourned Sine
     219/LKW/2009 and      Exports Ltd.      1. I.S.Verma, J.M.   circumstances of the case as well                              die
     C.O.No.23/Lck/ 2009   Kanpur            2.N.K.Saini, A.M.    as in law, the Revenue's ground
     A.Y.2005-06                                                  Nos.3 to 6 be allowed or not?"
3.   SP No.03/Lkw/2012     Smt.Uma Pandey,   S/Shri.              SP No.03/Lkw/2012                     Hon'ble                  To be fixed
     (A/o ITA                                Sunil Kumar                                                President,I.T.A.T.
     188/Lkw/2010)                           Yadav,J.M.           "Whether, the stay earlier granted
     A.Y. 2007-08                            2.B.R.Jain,A.M.      by the Tribunal can be extended
     SP.No.04/Lkw/2012     M/s.State Urban                        till disposal of the appeal in a case
     (A/o ITA              Development                            where the appeal has been heard
     103/Lkw/2012)         Agency.                                by the Tribunal and is pending
     A.Y. 2007-08                                                 with the Members for order?"
                                                                                                                             5
                                                                                    Sd/-
                                                                                   J.M.

                                                              "Whether, on the peculiar facts,
                                                              circumstances of this case and in
                                                              law, there is any justification in
                                                              extending the stay of the disputed
                                                              demand that already had run
                                                              beyond 365 days or the
                                                              application so made by the
                                                              assessee is liable to be rejected?"

                                                                                   Sd/-
                                                                                   A.M.

                                                              SP No.04/Lkw/2012

                                                              "Whether, under the facts and
                                                              circumstances of the case, the
                                                              outstanding demand can be stayed
                                                              outrightly or subject to payment
                                                              of part of demand in instalments
                                                              as proposed?"

                                                                    Sd/-                Sd/-
                                                                   J.M.                A.M

4.   ITA No. 188/Lkw/2010 Smt. Uma Pandey   S/Shri.           "Whether, under the facts and Shri.G.D.Agarwal,        To be fixed
     A.Y. 2007-08                           1.Sunil Kumra     circumstances of the case, the Hon'ble Vice-
                                            Yadav,J.M.        payments received by the assessee President (LZ)
                                            2.B.R.Jain,A.M.   from M/s. Amit Poly Yarn Ltd.
                                                              (now known as M/s Amitech Ind.
                                                              Ltd) are receipt as an advance
                                                              against sales made during the
                                                              course of commercial transactions
                                                              and therefore provisions of section
                                                              2(22)(e) of the Income-tax Act,
                                                              1961 are not attracted to these
                                                                                                                 6
                                                              payments or the aforesaid
                                                              payments       are    purely     an
                                                              advance/loan made to the
                                                              assessee, attracting the provisions
                                                              of section 2(22)(e) of the Act?

                                                               "Whether, the issue of allotment
                                                              of shares for Rs.10 lakhs can be
                                                              restored to the Assessing Officer
                                                              to investigate the fact as to
                                                              whether the allotment of shares
                                                              was unilateral act of the company
                                                              i.e M/s. Amitech Ind. Ltd. or the
                                                              allotment was done at the instance
                                                              of the assessee in order determine
                                                              the applicability of provisions of
                                                              section 2(22)(e) of the Act to the
                                                              benefit accrued to the assessee on
                                                              allotment of shares or addition of
                                                              Rs.10 lakhs can be confirmed by
                                                              holding that benefit accrued to the
                                                              assessee on allotment of shares
                                                              attracts provisions of section
                                                              2(22)(e) of the Act on the basis of
                                                              material available on record?"

                                                                    Sd/-               Sd/-
                                                                   J.M.                A.M
     AGRA BENCH

1.   ITA No.         J.M.Agarwal       S/Shri.                1. "Whether, in the given facts Shri.G.D.Agarwal,       Adjourned Sine
     92/Agr/2008 &   Tabacco Co. &     1.Hari Om Maratha,     and circumstances of the case Hon'ble Vice-             - die
     93/Agr/2008     J.M.Agarwal       J.M.                   when disturbed. The AO has not President (DZ)
     A.Y.1998-99     Tabacco Co. (P)   2. Sanjay Arora,A.M.   the Trading results and the
                     Ltd.                                     assessee has explained certain
                                                              incriminating Evidences found by
                                                              the Central Excise Department,
                                                              particularly when the purchases
                                                              and sales are found fully vouched
                                                                                                                  7
                                                                  and     verifiable, the   entire
                                                                  Investment can be treated as
                                                                  excess sale and be added to the
                                                                  total income of the assessee or
                                                                  not?"

                                                                  2. "Whether, in a case of a
                                                                  Company the 3 telephone and car
                                                                  running       expenses    can  be
                                                                  disallowed and added in the hands
                                                                  of the company on account of
                                                                  personal user of telephone/car by
                                                                  its director (s) or not?"

                                                                  3. "Whether, when the assessee's
                                                                  trading account has been accepted
                                                                  in toto, and the GRs were
                                                                  explained with reference to books
                                                                  of accounts, the non-production of
                                                                  copies of GRs can lead to
                                                                  addition, as has been done in this
                                                                  case or not?"




     JABALPUR BENCH
1.   ITA No.          Shri. Anil Jaiswal,   S/Shri                "Whether on the facts and the Hon'ble President,       ----
     327/Jab/2009     Jabalpur              1.I.S.Verma, J.M.     circumstances of the case as well I.T.A.T.
     A25/10-2004                            2.B.R.Kaushik, A.M.   as in law, the CIT(A) was justified
                                                                  in deleting the addition made,
                                                                  while making assessment under
                                                                  section 153A read with section
                                                                  143(3) of the Act on protective
                                                                  basis?"


                                                                                                                     8
    PATNA BENCH(
    Circuit Bench, Ranchi)
1   MA No.                    Shri. Ghasi Ram       S/Shri.                 "Whether, on the facts and in the Hon'ble Zonal Vice       Pending for
    11 (Pat) / 2007 arising   Agarwal, Ranchi       1. B. R. Mittal, J.M.   circumstances of the case, the President (KZ)              hearing.
    out in                                          2. B.K. Haldar, A.M.    application of the department for
    IT(SS)A No.                                                             recall of the order      of   the
                                                                                              st
    45/Pat/05) A.Y. 86-87                                                   Tribunal dt. 21 June, 2006
    to 97-98                                                                passed in IT(ss)A No. 91(Pat)/05
                                                                            to delete the amount of
                                                                            Rs.45,823/- is to be allowed as
                                                                            held by the learned Accountant
                                                                            Member or is to be rejected as
                                                                            held by the learned Judicial
                                                                            Member."

2   Int. Tax Appeal           M/s Coalsesce        S/Shri.                  "Whether, in the facts and Hon'ble Zonal Vice-             Pending for
    Nos. 06 to 08/Pat/06      Investment (P) Ltd., 1. B. R. Mittal, J.M.    circumstances of the case, the President                   hearing.
    A.Ys.1997-98 to 1999-     Ranchi               2. B.K. Haldar, A.M.     assessee was liable under the
    2000                                                                    Interest Tax Act to pay interest tax
                                                                            on the gross interest received on
                                                                            the loans and advances granted by
                                                                            it during the impugned assessment
                                                                            years."
    GUWAHATI
    BENCHES
1   ITA 47, 48 and            M/s Purbanchal        S/Shri.                 1. "Whether, on the facts and Hon'ble President,           Not yet fixed.
    49(Gau)/2004              Safety Glassess (P)   1.Hemant Sausarkar,     circumstances of the case the Ld. I.T.A.T.
    A.Y.1996-97, 1997-98      Ltd., Guwahati.       J.M.                    CIT(A) was justified in deleting
    &                                               2.B.R.Kaushik, A.M.     the additions made by the A.O.
    1998-99                                                                 under section 69 of the Act as
                                                                            undisclosed investment amounting
                                                                            to Rs. 9,21,461/-, Rs.2,20,990 and
                                                                            Rs.3,66,526/- for the assessment
                                                                            years 1996-97, 1997-98 and 1998-
                                                                            99 respectively on the ground that
                                                                            the reassessments made by the
                                                                            A.O. for the assessment years in
                                                                            question were based on the
                                                                            information received from Bureau
                                                                                                                                   9
of    Investigation     (Economic
Offence) (Guwahati) and that the
information was based on material
and documentary evidence to
substantiate the assessments?"

2. "Whether on the facts and in
the circumstances of the case the
order of the Ld.CIT(A) is required
to be set aside with the direction
to decide the issue afresh after
giving proper opportunity to the
assessee     on    the    relevant
information received by the A.O.
on 25.02.2003 from the Bureau of
Investigation          (Economic
Offence)?"

3. "Whether, on the facts and in
 the circumstances of the case,
 the Ld. Judicial Member was
 justified in holding that the
 issuance of notice u/s 148
 cannot hold good and,
 therefore, the assessment u/s
 143(3) r.w.s. 147 of the Act is
 illegal, unjustified and void or
 the Ld. Accountant Member
 was justified in holding that
 the reopening of assessment
 and subsequent assessment
 made by the A.O. is justified?"

As per the order dt.16.04.2008
of the Hon'ble President
"All the three questions would be
considered u/s 255(4) by the
President."

                                     10
2.   ITA Nos. 96, 97 &       Brooke Bond India   S/Shri.               1." Whether, the learned CIT(A) Shri.Pramod        Adj. Sine -die
     98(Gau)/2002            Ltd., Calcutta.     1.Hemant Sausarkar,   has erred in law and in facts in Kumar,A.M.
     A.Y.1990-91, 1991-92,                       J.M.                  directing the A.O. to consider the
     1992-93                                     2.B.R.Kaushik, A.M.   income from interest and dividend
                                                                       as business income for the
                                                                       purpose of eligible deduction u/s
                                                                       32AB of the Act, in view of the
                                                                       decision in the case of CIT Vs.
                                                                       Dinjoy Tea Estate (P) Ltd. (1997)
                                                                       224 ITR 263 (Gau), 271 ITR 123
                                                                       (Cal), 273 ITR 470 (Mad) and 224
                                                                       ITR 263 (Gau)?"

                                                                       2. "Whether, this Bench of the
                                                                       Tribunal working under the
                                                                       jurisdiction of the Hon'ble
                                                                       Guawahati High Court can allow
                                                                       the claim of the assessee that
                                                                       income from interest and dividend
                                                                       is to be taken as business income
                                                                       for the purpose of eligible
                                                                       deduction u/s 32 AB of the Act in
                                                                       view of the decisions in the cases
                                                                       of (i) Britania Industries Ltd. Vs.
                                                                       JCIT (2004) 271 ITR 123 (Cal)
                                                                       and (ii) DCIT Vs.United Nilgiris
                                                                       Tea Estate Co. Ltd.(2005) 273
                                                                       ITR 470 (Mad)?"


                                                                       3. "Whether, on the facts and
                                                                       circumstances of the case the
                                                                       claim      of    expenditure     of
                                                                       Rs.94,363/- and Rs.1,26,718/-
                                                                       attributable to the foreign tour of
                                                                       Mrs. R. Sen, wife of the director,
                                                                       Mr. D. Sen, was not wholly and
                                                                       exclusively for the purpose of
                                                                       business?"
                                                                                                                     11
                                                                        4. "Whether, in view of change of
                                                                        stand by the assessee regarding
                                                                        nature and purpose of expenditure
                                                                        taken before the Ld.CIT(A) for
                                                                        the first time the issue was
                                                                        required to be restored to the A.O.
                                                                        for fresh adjudication after
                                                                        enquiring into the claim of the
                                                                        assessee?"

4.   ITA No. 09/Gau/2006      Shri. Shyam Sunder S/Shri.                (1)    "Whether, on the basis of Hon'ble President,        Not yet fixed.
     A.Y.2002-2003            Malpani, Jorhat    Hemant Sausarkar,      facts and in the circumstances of I.T.A.T.
                                                 J.M.                   the case, the assessee is entitled to
                                                 B.R.Kaushik, A.M.      deduction u/s 80IB?"

                                                                        (2)    "Whether, in view of the
                                                                        decision in the case of CIT Vs
                                                                        Down Town Hospital Ltd. 251
                                                                        ITR 683 (Gau), the issue was
                                                                        required to be restored to the
                                                                        learned     CIT(A)    for   fresh
                                                                        adjudication after ascertaining
                                                                        whether all the conditions u/s 80
                                                                        IB are fulfilled?"


5.   ITA No.161/Gau/2003      M/s 3R, Gauwahati. S/Shri                 1. "Whether in the facts and Shri. D.K.Tyagi,J.M.          Not yet fixed
     Block period f 1989-90                      1. Hement Sausarkar,   circumstances of these cases the
     to 1998-99 & 1999-                          J.M.                   block    assessments   can    be
     2000.                                       2. B.R.Kaushik, A.M.   considered invalid?"

     ITA No.162/Gau/2004      M/s Panbazar
     Block period 1989-90     Diagnostic Centre,
     to 1998-99 & 1999-       Guwahati.                                 2. "Whether, in the facts and ------ do -------
     2000                                                               circumstances of these cases it can
                                                                        be held that the A.O. did not bring
                                                                        on record the prima facie evidence
                                                                                                                              12
                                                                    for invoking jurisdiction and
                                                                    initiation of proceedings u/s 158
                                                                    BD of the Act?"




     CHENNAI BENCH

1.   ITA 493/Chenn/2010   Dr. K. Senthilnatha   S/Shri.             1."Whether the payment of Shri. O.K.Narayanan,       To be fixed
     A.Y.2004-05                                1.Hari Om           Rs.18,41,787/- made to CMDA Hon'ble Vice-
     ITA 494/Chenn/2010                         Maratha,J.M.        under the provisions of Section President, (CZ)
     A.Y.2005-06                                2.N.S.Saini,A.M.    133-A of the Tamil Nadu Town
     ITA 495/Chenn/2010                                             and Country Planning Act, 1971
     A.Y.2006-07                                                    (as amended vide amending Acts
                                                                    31 of 2000, 17 of 2001 and 7 of
                                                                    2002), which was not refundable
                                                                    to the assessee forms part of the
                                                                    cost of hospital building to the
                                                                    assessee or not under section 43
                                                                    (1) of the Act?"
                                                                    2."Whether, the assessee was
                                                                    entitled to depreciation under
                                                                    section 32 of the Act in respect of
                                                                    the entire cost of hospital building
                                                                    including the payment made to
                                                                    CMDA, which was used by it for
                                                                    its business purpose or not?"




     BANGALORE
     BENCH
1.   MP.No 41/Bang/2010 Shri Mahesh             S/Shri/Smt.          1."Whether, on the facts and in Hon'ble      Vice- Fixed on
     (ITA 773/B/10)     Hasmukh Boriya,         1.P.Madhavi Devi,   the circumstances of the case, President (BZ)        28.09.2012
                                                J.M.                there is any mistake apparent from
                                                2. A.Mohan          record rectifiable u/s 254(2) of
                                                                                                                      13
                                      Alankamony A.M.       the IT Act, when the Tribunal
                                                            adjudicated the Revenue's appeal
                                                            on the sole ground of limitation in
                                                            favour of the Revenue, but not
                                                            remitted back the issue to CIT(A)
                                                            for adjudication on merits when
                                                            such an issue of remission/merits
                                                            was not before the Tribunal either
                                                            by a prayer submission or cross
                                                            objection by the Assessee/AR
                                                            other than the only argument to
                                                            defend      his     ground      on
                                                            technicality?"

                                                            2."Whether, the inclusion of a
                                                            copy of a favourable judgment to
                                                            the assessee on the issue of merits
                                                            in the paperbook produced before
                                                            the ITAT would amount to be a
                                                            ground or submission enabling the
                                                            assessee to invoke the rectification
                                                            jurisdiction of the Tribunal, when
                                                            during the course of the hearing
                                                            there were no such arguments or
                                                            submission on merits/remission
                                                            before the Tribunal by the
                                                            Assessee/AR?"




     COCHIN BENCH
1.   ITA                 P.K.Kannan   S/Shri.               "Whether, the provisio can Shri N.V.Vasudevan,    Posted on
     No.1004/Coch/2008                1.N.Vijaykumaran,J.   override the main Section in JM.                  27.07.12
     A.Y. 2005-06                     M.                    respect of Section 40(a) as per the
                                      2.Sanjay Arora,A.M.   amendment by the Finance Act,
                                                            2004 & 2007 with respect to

                                                                                                         14
                                                                   Section 194C with effect from
                                                                   01.04.05          to       01.06.07
                                                                   respectively."
                                                                                   Sd/-
                                                                                  A.M.
                                                                   1. "Whether, the provision of sec.
                                                                   194C(2) of the Act is applicable to
                                                                   the assessee contractor for the
                                                                   relevant year; the satisfaction of
                                                                   the financial criteria specified in
                                                                   the provision being an undisputed
                                                                   fact?"
                                                                   2. "If so, whether, therefore, the
                                                                   AO is right in invoking the
                                                                   provision of sec.40(a)(ia) of the
                                                                   Act qua the assessee's admitted
                                                                   failure to deduct tax at source u/s.
                                                                   194C( a ) in respect of the
                                                                   credits/payments to the individual
                                                                   and HUF sub-contractors?"
                                                                   3. "Whether, the binding decisions
                                                                   by the hon'ble jurisdictional high
                                                                   court inter alia in the case of CIT
                                                                   vs. South India Corpoaration Ltd.
                                                                   242 ITR 114 (Ker.) and CIT vs.
                                                                   Aspinwall & Co. Ltd., 98 ITR 291
                                                                   (Ker.) have a direct and clear
                                                                   bearing on the issue/s arising for
                                                                   adjudication in the instant
                                                                   appeal?"
                                                                                   Sd/-
                                                                                  A.M.
2.   ITA 720/Coch/2010   Al-Ameen            S/Shri.               "Whether levy of penalty under Hon'ble                         Yet to be fixed.
     A.Y.2005-06 &       Educational Trust   1.N.Vijaykumaran,     section 271D is justified?"          President,I.T.A.T.
     ITA 721/Coch/2010                       J.M.
     A.Y.2006-07                             2.Sanjay Arora,A.M.                 Sd/-
                                                                                J.M.
                                                                   1"Whether, on facts, and in the
                                                                   circumstances of the case, penalty
                                                                                                                             15
                                                            u/s.271D to the extent of Rs.79.40
                                                            lacs and Rs.15.25 lacs for the two
                                                            consecutive years, is liable to be
                                                            levied, or not?
                                                            2."Whether, on facts and in the
                                                            circumstances of the case, penalty
                                                            levied u/s.271D to the extent of
                                                            Rs.49.40 lacs (for A.Y. 2005-06),
                                                            is liable to be deleted, or restored
                                                            back to the file of the assessing
                                                            authority for the necessary factual
                                                            determination, whereupon only
                                                            the law can be applied?"

                                                                            Sd/-
                                                                           A.M.

     RAJKOT
     BENCH

1.   ITA 361/Rjt/1999   Shri. R.K.Mehta   Shri.             "Whether, on the facts and in the Shri.G.C.Gupta,        Fixed on
                                          T.K.Sharma,A.M.   circumstances of the case and Hon'ble Vice-              27.08.12
                                                            material on record the addition of President (AZ)
                                                            Rs. 40,000/- made by AO on
                                                            account of       investment in
                                                            household expenses should be
                                                            deleted    or     restricted    to
                                                            Rs.30,000/-."


                                                            "Whether, on the facts and in the
                                                            circumstances of the case the
                                                            addition of Rs. 2,60,000/- in
                                                            proprietary business namely M/s.
                                                            Associated Apparels which was
                                                            set up by the assessee representing
                                                            himself      before      concerned
                                                            authority as R.P. Pandya should
                                                            be deleted or setaside to the file of
                                                                                                                16
                                                                        A.O. for ascertaining the actual
                                                                        amount of investment in shed
                                                                        machinery etc.

2.   ITA 307/Rjt/2011         Shri. Ashwinkumar    S/Shri .             "Whether, on the facts and Shri.G.C.Gupta,              Fixed on
                              S. Kotecha           1.T.K.Sharma,J.M.    circumstances of the case, the Hon'ble Vice-            28/08/2012
                                                   2. A.L.Gehlot,A.M.   appeal of the assessee for the President (AZ)
                                                                        Assessment Year 2005-06 be
                                                                        dismissed or addition sustained
                                                                        by ld.CIT(A), be reduced to
                                                                        Rs.29,325/-"
     CHANDIGARH
     BENCH
1.   ITA No.                  Shri . R.K.Garg      S/Shri .             Per J.M.                            Hon'ble Vice        Fixed on
     142/CHD/1999                                  1.M.A.Bakshi, VP     1. "Whether, on the facts and in President              27.07.2012
     A.Y.97-98                                     2. N.K.Saini. A.M.   the circumstances of this case, the (Chandigarh)
     ITA 550, 489, 586, 587                                             guarantee commission received by
     & 588/CHD/99                                                       the assessees is a revenue receipt
     A.Y.87-88, 90-91, 98-                                              or a capital receipt?"
     99, 1999-2000 & 2000-
     2001                                                               2. "Whether, the decision of the
                                                                        Tribunal in assessee's own case
                                                                        for the assessment year 88-89 to
                                                                        the effect that the guarantee
                                                                        commission is a revenue receipt is
                                                                        inapplicable in view the decision
                                                                        of the Hon'ble Madras High Court
     ITA No.                  Smt. Sunaina Garg                         in the case of CIT v. Pondicherry
     143/CHD/1999                                                       Industrial              Promotion
     A.Y.97-98                                                          Development        &   Investment
     ITA Nos. 589, 590 &                                                Corporation Ltd. (supra), and the
     591/CHD/2002                                                       decision of Delhi High Court in
     A.Y. 1998-99,                                                      the case of Suessen Textile
     1999-2000,                                                         Bearings Ltd. etc. v. Union of
      2000-2001                                                         India etc. (supra)?"
                              Shri . R.K.Garg, &
     ITA 503/CHD/2002         Sons(HUF)                                 3. "Whether, on the facts and in
     A.Y. 1997-98                                                       the circumstances of the case, the
                                                                        additional ground raised by the
                                                                                                                           17
revenue for the assessment year
90-91 only deserves to be
admitted and matter for all the
assessment years remitted to the
CIT(A) for giving an opportunity
to the AO to distinguish the two
High Courts cases, referred to
above notwithstanding the fact
that both the Members of the
Bench have decided the issue
relating to assessability of the
guarantee commission on merits?"

Per A.M.


1. "Whether, on the facts and in
the circumstances of the case, it
could be held that the guarantee
commission received by the
assessees against their personal
assets was a capital receipt?"


2. "Whether, on the facts and in
the circumstances of the case and
also in law, the Ld. CIT(A) should
have provided and opportunity of
being heard to the Assessing
Officer when there was a specific
direction by the Tribunal to do so,
before arriving at a conclusion on
the basis of judgment of Hon'ble
Delhi High Court in the case of
Suessen Textile bearing Ltd. and
others V Union of India, CC2 JJX
0082 and Hon'ble Madras High
Court in the case of CIT V.
Pondicherry      Indl   Promotion
                                      18
                                                                 Development and Investment
                                                                 Corp. Ltd. (2000) 245 ITR 859,
                                                                 that the amount received by
                                                                 assessees was a capital receipt."

     AMRITSAR BENCH
1.   IT(SS)A No.       Sh.Vinod Goel       S/Shri                Shri H.S.Sidhu.                         Zonal Vice President        Pending for
     14/ASR/2005.                          1. H.S. Sidhu, J.M.                                                                       fixation
                                           2.Mehar Singh,A.M.    1."Whether, on the facts and in
     IT(SS)A           M/s Sidhant                               the circumstances of present case,
     No.13/ASR/2005.   Deposits &                                the issues in the present appeals
                       Advances(P) Ltd.                          are covered by the decision of the
                                                                 Hon'ble Supreme Court in the
     IT(SS)A           M/s Trimurti                              case of Manish Maheshwary Vs.
     No.12/ASR/2005    Deposits &                                ACIT (2007) 289 ITR 341 (SC)
                       Advances (P) Ltd.                         and the decision of the Hon'ble
                                                                 jurisdictional High Court in
                                                                 Income tax Appeal No.519 of
                                                                 2009 decided on 20-7-2010 in the
                                                                 case of CIT-I, Ludhiana Vs.
                                                                 Mridula Prop. Dhruv fabics,
                                                                 Ludhiana?"

                                                                 2."Whether, on the facts and in
                                                                 the circumstances of the present
                                                                 case, non-production of records by
                                                                 the revenue in spite of various
                                                                 opportunities given to them,
                                                                 benefit should go to the revenue
                                                                 or the asessee?"

                                                                 3."Whether, on the facts and in
                                                                 the circumstances of the present
                                                                 case, it is mandatory a pre-
                                                                 requisite that the satisfaction to be
                                                                 recorded in the cases of persons
                                                                 searched before issuance of notice
                                                                 under section 158 BD of the

                                                                                                                                19
Income tax Act. 1961 to the
assesse i.e. other person?"

   Shri. Mehar Singh,AM.

1."Whether on the facts and on
law, valid Block Assessments can
be cancelled, on the ground of
assumed non-production of record
indicating       recording     of
satisfaction u/s 158BD, in a case
where such satisfaction is duly
evidenced       by      documents
available in the paper book filed
by the Deptt. and reproduced
verbatim in the order dated
06.12.2006 passed by the Bench
and      subsequent     M.A.dated
21.01.2009, dismissed by the
Bench, without even considering
such satisfaction?'

2." Whether, on the facts and on
law Block Assessments can be
cancelled by applying the decision
of jurisdictional High Court,
relied upon by the assessee, which
lays down the law that satisfaction
under section 158BD be recorded
before the conclusion of the Block
Assessments under section 158BC
of the Act, in the absence of vital
details of dates of completion of
such block assessment being
determinative       factor,      in
determining the applicability of
the said decision, where the
parties to the disputes failed to
furnish such dates?"
                                      20
     JAIPUR BENCH
1.   ITA No. 937/Jp/2011   M/s. Mahaveer      S/Shri                Shri R.K. Gupta, JM.             Hon'ble Vice          Pending
                           Exports, Jaipur.   1.R.K.Gupta, JM.                                       President
                                              2.Sanjay Arora,A.M.   1. "Whether, in the facts and (Chandigarh Zone)
                                                                    circumstance, the addition of
                                                                    Rs.3,58,455/- made by one of the
                                                                    partners S mt.Kanta Nowlkha is
                                                                    liable to be deleted or to be
                                                                    confirmed?"

                                                                    2. "Whether, in the facts and
                                                                    circumstances, the addition of Rs.
                                                                    1,00,000/- each in the name of
                                                                    Shri Nem Chand Nowalkha and
                                                                    Shri Pankaj Ghiya of the assessee
                                                                    firm made as capital contribution
                                                                    is liable to be deleted or liable to
                                                                    be set aside to the file of the
                                                                    Assessing Officer?"

                                                                    3. "Whether, in view of the
                                                                    decision of Hon'ble Jurisdictional
                                                                    High Court in case of Kewal
                                                                    Krishan & Partners, 18 DTR 121
                                                                    (Raj.)    the     entire    capital
                                                                    contribution      made/contributed
                                                                    prior to commencencement of
                                                                    business in liable to be deleted or
                                                                    to be confirmed in part and partly
                                                                    to be set aside to the file of
                                                                    Assessing Officer ?"

                                                                    Shri Sanjay Arora,AM.

                                                                    1. "Whether, section 68 of the
                                                                    Income-tax Act, 1961 can be
                                                                    invoked where the assessee fails
                                                                                                                      21
to satisfactorily explain the nature
and source of a case credit found
recorded by him in his books of
account for the relevant year, or is
the Revenue also required to
establish that the assessee had in
existence a source of income
before the date on which such
cash credit was recorded, i.e., in
order to treat the same as
unexplained u/s. 68?"

2. "Whether, the addition of the
impugned sums as unexplained
credits u/s.68 can be deleted on
the sole ground that the assessee
had no source of income prior to
the date on which the same were
found recorded in the assessee's
books of account, notwithstanding
the fact that it has completely
failed to discharge the burden of
satisfactorily explaining the nature
and source thereof?"

3. "Whether, the view that a cash
credit recorded in the books of
account of a partnership firm
ostensibly as capital contributed
by a partner cannot be treated as
unexplained u/s.68 in the hands of
the firm even if the assesseefirm
fails to satisfactorily explain the
nature and source thereof, and
more particularly if its fails to
adduce evidence to establish that
the alleged capital was actually
contributed by the partner, is
sustainable in law in view of the
                                       22
                                                                      decision     by     the    Hon'ble
                                                                      jurisdictional high court in CIT v.
                                                                      Kishorilal Santoshilal (1995)216
                                                                      ITR 9 (Raj.)?"

                                                                      4.1 "Whether, can capital be
                                                                      contributed by a partner to a
                                                                      partnership-firm prior to the
                                                                      coming into existence of the said
                                                                      firm? In any case, whether the
                                                                      claim of capital contribution by
                                                                      way of transfer of goods on June
                                                                      1,2006 can be accepted in view of
                                                                      the fact that the assessee-firm
                                                                      itself came into existence only on
                                                                      July 11,2006?"

                                                                      4.2 "Is the remand in the case of
                                                                          two cash credits of Rs. 1 lac
                                                                          each in the name of two
                                                                          partners justified under the
                                                                          facts and circumstances of
                                                                          the      case,     even     as
                                                                          contemplated by the Hon,ble
                                                                          jurisdictional high court in
                                                                          the     case    of    Rajshree
                                                                          Synthetics (P) Ltd. v. CIT
                                                                          (2002) 256 ITR 331 (Raj.)?"

2.   ITA No.363 &          M/s Escorts Heart     S/Shri               Shri R.K.Gupta,J.M.             Hon'ble Vice            Pending
     326/Jp/2011           Institute &           1.R.K.Gupta,JM.                                      President (Delhi
     A.Y.2008-09.          Research              2.Sanjay Arora,AM.   1. Whether in the facts and Zone)
                           Centre,Jaipur.                             circumstances of the case, the
     ITA No.1123/Jp/2011   Escort Heart Super                         provisions of section 194J are
     A.Y.2009-10.          Speciality Hospital                        applicable on the payments made
                           Ltd.,Jaipur.                               to blood bank ?

                                                                      2. Whether in the facts and
                                                                      circumstances of the case, the
                                                                                                                         23
provisions of section 192 or
section 194J are applicable in case
of retainer doctors ?


3. Whether in the facts and
circumstances of the case, on the
mark up/profits earned by Fortis
Health World Ltd. (FHWL) on
sale of medicines to the assessee
is a commission chargeable to tax
under section 194H or is a sale on
which provisions of section194H
are not applicable?


4. Whether in the facts and
circumstances of the case, on the
mark up/profits the provisions of
section 194C can be invoked by
the Tribunal where neither this is
a case of department nor of the
assessee ?

   Shri Sanjay Arora, AM.

1.1 Whether the payments to the
blood banks for carrying out
investigation procedures, are, in
the facts and circumstances of the
case, made by the assessee-
hospital or by its patients?


1.2 Whether, while deciding an
issue under appeal, the tribunal
required to apply its independent
mind thereon, without being
influenced by the decision by the
                                      24
first appellate authority for a
subsequent year, particularly
when the same was not pressed
during hearing and, accordingly,
the parties not heard thereon?


2. I am in agreement with the
Question No. 2 as proposed by my
ld. Brother, JM.


3.1 Whether, can on the admitted
set of facts brought on record by
the parties, the inferential
finding/s by the Appellate
Tribunal differ from that of either
party before it, or is it to
necessarily match therewith?
Further, is not the tribunal duty
bound to, in deciding an issue
before it, apply the law as
applicable to the facts found by it,
including      such       inferential
finding/s?


3.2 Whether, in the facts and
circumstances of the case, the
supply of medicines by Fortis
Health World Ltd.(FHWL) to the
assessee-company for its IPD
Pharmacy,       constitutes     an
independent     business     being
carried on by FHWL, or is the
said supply only the result of the
work carried out by its relevant
manpower, whose services stand
already contracted to the assessee
                                        25
                                                                  company and subject to tax
                                                                  deduction u/s. 194C of the Act?
     JODHPUR BENCH

1.   ITA No.362(JU)/10   Smt. Supriya       S/Shri                "Whether, on the facts and Hon'ble                 Vice- Adjourned
                         Kanwar, Jodhpur.   1.Joginder Singh,J.M. circumstances of the case, solitary President (CZ)       Sine-die
                                            2. K.G. Bansal,A.M. transaction of purchase and sale of
                                                                  the same agricultural land with
                                                                  standing crops situated beyond the
                                                                  prescribed      municipal limits,
                                                                  amounts to adventure in the nature
                                                                  of trade?"
                                                                                         Sd/-
                                                                                   (Joginder Singh)
                                                                                         J.M.
                                                                  "Whether, on the facts and in the
                                                                  circumstances of the case and sale
                                                                  of five pieces of agricultural land
                                                                  with standing crop, by way of
                                                                  separate    conveyance       deeds,
                                                                  beyond the prescribed distance
                                                                  from any municipal council,
                                                                  amount to transactions on capital
                                                                  account or adventure in the nature
                                                                  of trade?"
                                                                                        Sd/-
                                                                                   (K.G.Bansal)
                                                                                      A.M.




                                                                                                                       26
                             INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI


                   LIST OF THIRD MEMBER CASES HEARD AND PENDING FOR ORDERS AS ON 06.07.2012.



Sr.   Appeal No.             Name of the      Bench                Points involved                                 To Whom         Remarks
No                           Assessee                                                                              assigned
      MUMBAI BENCH

1.    ITA Nos. 2680       & Shri. Ismail      S/Shri.              1. "Whether, on the facts and circumstances Hon'ble Vice-       Heard on
      2681/Mum/2008         Abdulkarim        1. R.K.Gupta, J.M.   of the present case the capital gain on the President           13.03.2012
      A.Y.2005-06.          Balwa., Mumbai,                        sale of property in question is liable to be (MZ)
                                              2.Rajendra Singh,    taxed on the basis of long term capital gains
                                                A.M.               or short term capital gains?

                                                                   2. "Whether, on the facts of the present case
                                                                   where the AO in the case of one co-owner
                                                                   has accepted the gain as long term capital
                                                                   gains then a different view can be taken in
                                                                   the case of other co-owner?"

2.    ITA 6484/Mum/2009      M/s. Heritage    S/Shri.                "Whether, on the facts and in the Shri.R.S.Syal,A             Heard on
                             Housing          1.Rajendra Singh, A.M. circumstances of the case and after .M.                       22.06.2012
                             Development      2.Vijay Pal Rao,J.M.   considering the various decisions of the co-
                             Corporation                             ordinate Benches of the Tribunal cited before
                                                                     the Bench, can it be said that the order of AO
                                                                     had not merged with the order of CIT(A) on
                                                                     all aspects including quantum of deduction in
                                                                     relation to claim of deduction under section
                                                                     80IB, which had been disallowed by AO and
                                                                     on appeal, it had been allowed fully by
                                                                     CIT(A)".

                                                                                                                              27
                                                                      "Whether, on the facts of circumstances of
                                                                      the case the order of the Assessing Officer
                                                                      deemed to have merged with the order of the
                                                                      CIT(A) on the issue of allocation of
                                                                      cost/value of FSI towards commercial
                                                                      building."
     AHMEDABAD
     BENCH
1.   ITA                  Sardar               S/Shri.                1."Whether     under     the    facts   and Hon'ble Vice-   Heard on
     No.2984/AHD/2008 &   Vallabhbhai          1.Mukul Shrawat,J.M.   circumstances of the case, the matter is President (AZ)     18.06.2012
     C.O.223/AHD/2008     Education Society,   2.A.K.Garodia,A.M.     required to be restored back to the file of
                          Isroli,Surat.                               Learned CIT(A) for a fresh decision as
                                                                      proposed by the A.M. or the tribunal can
                                                                      decide the matter as per the proposed order
                                                                      of the J.M."


                                                                      2. "Whether under the facts and
                                                                      circumstances of the case, since the receipts
                                                                      issued in respect of the said "Corpus Fund"
                                                                      was prepared by the employees of the
                                                                      society, an enquiry was still required to
                                                                      decide the nature of the said "Corpus Fund"?


                                                                      3. "Whether under the facts and
                                                                      circumstances of the case, the amount of
                                                                      Rs.1,54,67,621/- constituted the "Corpus
                                                                      Fund" of the assessee-society?"




                                                                                                                           28
 
 
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