IN THE HIGH COURT OF DELHI AT NEW DELHI ITA 1441/2006
26.08.2008
Judgment reserved on: 26.08.2008 Judgment delivered on:27.11.2008 COMMISSIONER OF INCOME TAX DELHI-IV ..... Appellant Through : Ms. Prem Lata
Bansal, Advocate
Versus
M/S DHARAM PAL PREM CHAND LTD ..... Respondent Through : Mr.B.Gupta and
Mr.R.K.Chaufla, Advocates
CORAM :-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers may be allowed to see the judgment ?
2. To be referred to Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
Rajiv Shakdher, J.
1. This is an appeal under Section 260A of the Income Tax Act (hereinafter
referred to in short as the ?Act?) preferred by the Revenue against the judgment dated 31.1.2006, passed by the Income Tax Appellate Tribunal (hereinafter referred to as the ?Tribunal?) in ITA No. 4031/Del/2003, in respect
of, assessment year 2000-01.
1.1 The Revenue is aggrieved by the impugned judgment with respect to two
issues:-
i) deletion of an addition of Rs 2,12,12,644 on account of sale of silver
outside the books of account and, ii) the allowance of deduction under Section 80-IB, in respect of, a sum of Rs
2,61,92,386 received by the assessee towards refund of excise duty, which
according to the Revenue cannot form part of profit and gain ?derived? from the
undertaking.
1st Issue
2. As regards this issue, the Tribunal relied upon its order dated 31.10.2005
for assessment year 1997-98 in ITA No. 3919/Del/2000 passed in the assessee?s
own case. By the said order, the Tribunal had allowed the appeal of the assessee. We find that this court, by an order dated 04.05.2007, has observed
that the first issue has already been decided by this court in ITA No. 1306/2006 and hence, is no longer res integra. We have examined the judgment
dated 04.05.2007 in ITA No. 1306/2006 wherein the said issue is decided against
the Revenue. In view of the said order, the first issue is decided against the
Revenue and in favour of the assessee. 2nd Issue
3. In so far as this issue is concerned, its disposal would require delineation
of certain undisputed facts. These being:- 3.1 The assessee is engaged in the manufacture of flavoured chewing tobacco and
Kiwam. The assessee has manufacturing units located at Barotiwala District
Himachal Pradesh and in Agartala. In respect of the assessee?s unit at Agartala, during the relevant period, the assessee was entitled to exemption
from excise duty. The exemption to which the assessee was entitled, enured to
the assessee by virtue of three notifications issued by the Government of India,
Ministry of Finance being, notification numbers 32/99-CE, 33/99-CE and 48/99-CE
(NT). All these three notifications were dated 8.7.99 (hereinafter referred to
as the ?said notifications?). These notifications were forwarded to the assessee?s company by FICCI vide communication bearing reference No.F.680/CE-N-8
dated 22.7.1999. In terms of the said notifications, the assessee was exempted
from paying excise duty in respect of the product manufactured at its Agartala
unit. The procedure for claiming the exemption was that the assessee would
first clear the goods from its bonded warehouse by paying the requisite excise
duty and thereafter, the assessee would claim refund of excise duty on the
seventh day of the succeeding month in which clearance has been made. The net
result was that in the first instance, excise duty was paid by the assessee
while clearing the goods from the bonded warehouse which, was subsequently
refunded in the succeeding month. 3.2 On 30.11.2000, the assessee filed a return declaring a total income of Rs
2,33,97,130/-. The return was processed under Section 143(1)(a) of the Act. On
30.7.2001, the assessee filed a revised return. The case of the assessee was
picked up for scrutiny. A notice under Section 143(2) of the Act was served on
the assessee. The Assessing Officer, amongst others, raised an issue with
respect to a claim for deduction under Section 80-IB on an income of Rs 2,56,45,785/- from the assessee?s Agartala Unit which the assessee had arrived
at by virtue of inclusion of the amount refunded as excise duty, amounting to Rs
2,61,92,386/- from Agartala Unit. 3.3 The Assessing Officer came to the conclusion that since the refund received
on account of excise duty was not ?income derived? from any business of the
industrial undertaking, that is, the Agartala Unit, the assessee was not
entitled to include the same in the profit of the Agartala Unit, and consequently, no deduction would be allowed to the assessee in respect of that
part of the income. The Assessing Officer, thus, concluded if the refund of
excise duty was excluded, then, the Agartala Unit would show a loss and hence,
the assessee would not be eligible for any deduction under Section 80-IB of the
Act. Accordingly, by an order dated 28.3.2003/31.3.2003 the Assessing Officer
disallowed the deduction under Section 80-IB of the Act. 3.4 The assessee being aggrieved by the same, preferred an appeal to the
Commissioner of Income Tax (Appeals) [hereinafter referred to in short as
?CIT(A)?]. The CIT(A) returned a finding of fact that the assessee company, at
the relevant point in time, had a unit at Agartala, which was exempted from
payment of excise duty under the notifications referred to hereinabove, and had
debited the profit and loss account and merely on receipt of the refund of
excise duty, credited the amount to the profit and loss of the Agartala Unit.
The CIT(A), thus, came to the conclusion that the net effect was Nil. In other
words, the CIT(A) found that if the assessee had maintained separate excise
account then the excise duty would have to be debited on one side and the refund
would have to be credited on the other. The net effect in any event would be
?Nil?. He accepted the contention of the assessee that it cannot be denied the
benefit of, perhaps, incorrect entries in the accounts. 3.5 The CIT(A) also noted that the procedure prescribed by the excise department
was that the appellant company was required to pay excise duty upon clearance of
goods from the bonded warehouse and could only thereafter receive refund in the
subsequent month. This fact as noted by the CIT(A), was reflected by the
assessee in the books by first debiting the excise duty and upon receipt of the
fund credited in the profit and loss account. Importantly, the CIT(A) returned
a finding that the excise duty was paid during the course of manufacturing
activity which was the immediate and effective source of refund of excise duty.
There was, thus, according to the CIT(A), a direct nexus between the business
activity and the excise duty refund. The CIT(A) concluded by holding that there
was no justification in, the Assessing Officer, excluding the excise duty refund
from the income of the assessee?s Agartala Unit. He accordingly directed the
Assessing Officer to include the excise duty refund in the total income of the
assessee?s Agartala Unit while allowing deduction under Section 80-IB of the
Act.
3.6 The Revenue being aggrieved by the afore-mentioned order of the CIT(A),
amongst others, preferred an appeal to the Tribunal in respect of the two issues
referred to in Paragraph 1.1 hereinabove. As regards this issue, the Tribunal
in Paragraph 15 of the impugned judgment agreed with the findings recorded by
the CIT(A). It noted that the net effect of the entries was ?Nil?, in as much
as what was paid by the assessee, in consonance with the modalities provided
for, under the notification, was refunded on the seventh day of the succeeding
month. It also pointedly noted that had the assessee maintained a single
account of excise duty in its books, in that eventuality, there would have been
no surplus amount as refund of excise duty. In other words, nothing would have
been carried as refund of excise duty. It noted that a mere book entry would
not be decisive in coming to the conclusion that refund of excise duty formed
part of assessee?s income. In fact, what the respondent received as refund was
its own money which it had paid under the scheme. It, thus, concluded that the
amount of Rs2,61,92,386/- credited as refund of excise duty therefore could not
be excluded from the profits and gains of business for the purpose of computing
total income under Section 80-IB. The Tribunal, thus, concluded that the
CIT(A)?s finding that the net effect in the book of entries was ?Nil? was not
perverse, and thus, did not find any reason to interfere with the decision
reached by the CIT(A) in directing allowance of deduction without reduction of
the aforesaid amount of Rs2,61,92,386/- from the income of the respondent/assessee. Accordingly, the Tribunal dismissed the appeal.
4. Having heard the learned counsels for both the Revenue, as well as, the
assessee and perused the orders of the authorities below, we are of the view
that the appeal deserves to be dismissed for the reasons given hereinafter.
4.1 A reading of the such notifications referred to hereinabove, would show that
the Notification No.32/1999 provides for exemption from payment of excise duty
in respect of goods specified in the first and second Schedules of the Central
Excise Act, 1985 which are cleared from units located in the Growth Centre or an
Integrated Infrastructure Development Centre, Export Promotions Industrial Park
or an Industrial Estates or Industrial Area or Commercial Estate in an area
specified in the annexure appended to the said notification. The exemption
under this notification for the relevant period was available in respect of
excisable goods manufactured by a new industrial unit which had commenced
industrial production on or after 24.12.1997 or had undertaken substantial
expansion by at least 25% in the installed capacity on or after 24th December,
1997. The exemption under the said notification was available for a period of
10 years from the date of the notification or from the date of commencement of
commercial production whichever was later. 4.2 In order to obtain the exemption, the manufacturer was required to submit a
statement to the concerned authorities, i.e., Central Excise, that the duty has
been paid from the current account by the 7th of the succeeding month and the
authorities were required to verify the claims and grant the refund of the
amount of the duty paid from the current account during the month under consideration to the manufacturer by the 15th of the succeeding month. 4.3 Similarly, Notification No.33/1999 was issued in respect of Industrial units
located in the entire North East Region comprising of seven States. The notification, however, extended exemption to specified goods referred to in the
Schedule appended to the said notification. The other conditions were identical
to the Notification No.32/1999. The third Notification being 48/1999, which
was, issued on the same day as the first two i.e. 08th July, 1999 was issued to
amend the modvat rules. The upshot of the said notification was that if the
goods in respect of which exemption was granted by virtue of Notification Nos.
32/1999 and 33/1999 were used as input by another manufacturer then, even
though, first manufacturer would have obtained refund on excise duty by virtue
of the procedure prescribed in Notification Nos. 32/1999 and 33/1999, the
subsequent manufacturer who would use such goods would be entitled to the entire
amount as modvat credit. This is quite evident upon a plain reading of Notification No.48/1999, whereby the Central Government in exercise of its power
conferred under Section 37 of the Central Excise 1994 has inserted Rules 57 JJ
and 57V in the Central Excise Rules, 1944. The said Rule 57 JJ as inserted by
the said Notification No. 44/1999 reads as follows:- ?57 JJ Special dispensation in respect of inputs manufactured in factories located in specified areas of North East Region ? Notwithstanding
anything contained in these rules, where a manufacturer has cleared any of the
specified inputs notified under rule 57A in terms of notification of the
Government of India in the Ministry of Finance (Department of Revenue) No.32/99-
Central Excise dated the 8th July, 1999 or Notification No.33/99-Central Excise,
dated the 8th July, 1999, the credit of specified duty under the said rule paid
on such inputs shall be admissible as if no portion of the duty paid on such
inputs was exempted under any of the said notification.? 4.4 Similarly amendment was made in respect of capital goods by insertion
of Rule 57V which reads as follows:- ??57V Special dispensation in respect of inputs manufactured in factories
located in specified areas of North East Region ? Notwithstanding anything
contained in these rules, where a manufacturer has cleared any of the capital
goods described in rule 57Q, in terms of notification of the Government of India
in the Ministry of Finance, (Department of Revenue) No.32/99-Central Excise,
dated the 8th July, 1999, or Notification No.33/99-Central Excise, dated the 8th
July, 1999, the credit of specified duty referred to in the said rule paid on
such capital goods shall be admissible as if no portion of the duty paid on such
capital goods was exempted under the said notifications.? 4.5 Based on the said notifications, the submissions of the learned counsel for the Revenue has been two fold, (i) that the refund of the excise
duty paid by the assessee has no direct nexus with the industrial activity
carried out by the assessee. The assessee?s entitlement to refund of excise
duty is dependent on the said notification, (ii) in the event the assessee is
allowed to claim deduction under Section 80-IB of the Act then, in a sense, the
assessee would be getting benefit twice over, firstly by virtue of deduction
under Section 80-IB of the Act, and secondly, by virtue of the fact that it
would have passed on the duty on the final product to its customers which would
then be recovered by the assessee alongwith the sale price. Learned counsel for
the Revenue, Ms.Prem Lata Bansal in support of her submissions has cited the
following judgments:-
Commissioner of Income Tax v. Sterling Foods 237 ITR 579; Cambay Electric Supply
Industrial Co Ltd v. Commissioner of Income Tax, Gujarat-II 113 ITR 84; Pandian Chemicals Ltd v. Commissioner of Income Tax (2003) 262 ITR 278; Commissioner of Income Tax v. Ritesh Industries Ltd (2005) 274 ITR 324; CIT v. Vishwanathan
and Co(2003) 261 ITR 737; Commissioner of Income Tax v. J.B.Exports Ltd (2006)
286 ITR 603 (Delhi); Liberty India v. Commissioner of Income Tax 293 ITR 520
(PandH)
4.6 As against this, the counsel for the assessee has relied upon the order of CIT(A) and the Tribunal to bring home the point that no substantial
question of law has arisen in the present case. The counsel for the assessee has
placed reliance on the following judgments:- Liberty India v. Commissioner of Income Tax 293 ITR 520 (PandH); Commissioner of Income Tax v. Eltek SGS P.Ltd (2008) 300 ITR 6 (Delhi); Commissioner of Income
Tax v. Five Star Rugs (2007) 293 ITR 553(PandH); Commissioner of Income Tax vs.
India Gelatine and Chemicals Ltd 275 ITR 284 (Guj.) 4.7 As stated above, the notifications clearly mandate that the exemption
from excise duty is available only if the industrial activity carried out by the
assessee either in a new industrial undertaking or in an industrial undertaking
in which installed capacity is increased by at least by 25%. It is thus clear
that in the first notification, i.e., 32/1999 the exemption is area specific,
while in the second notification, i.e., 33/1999 the exemption is specific to
goods as referred to in the schedule appended to the said notification. It is
thus clear that the exemption is directly relatable to an industrial undertaking
manufacturing goods which are otherwise exgible to duty. The exemption is
available either under Notification No 32/1999 or under Notification No 33/1999
dependent on where the unit is located or the type of goods manufactured by an
assessee as specified in the relevant notification. 4.8 To our mind, the procedure for granting of exemption is, as indicated
above, that the, assessee in the first instance, pays the excise duty from its
current account. The statement with respect to clearances made, is submitted
with the concerned Central Excise authorities by the 7th of the succeeding
month. The Central Excise authorities after verifying the claim of the assessee
are required to grant refund of excise duty paid from the current account during
the month under consideration to the manufacturer/assessee by the 15th of the
succeeding month. The notifications further provided that in the event it was
not possible for the concerned authorities to verify the claim for refund of
excise duty then it had to be made on provisional basis. 4.9 In these circumstances, the submissions of the learned counsel for the
Revenue is that there is no direct nexus between refund of excise duty paid or
that the refund of excise duty paid was dependent on the said notifications is,
to say the least, completely untenable. As a matter of fact as found by the
Tribunal, as well as, the CIT(A) in the instant case, the assessee has adopted
an incorrect accounting methodology. The assessee as found by the authorities
below had on the payment of excise duty debited the profit and loss account and
upon receipt of refund credited the profit and loss account. The net effect on
the profit and loss was ?nil? on account of the methodology followed by the
assessee. There was thus, according to us, no reason to exclude the amount of
refund of excise duty in arriving at ?profit derived? for the purposes of
claiming deduction under Section 80-IB of the Act. 4.10 The other contention of the learned counsel for the Revenue that the
assessee by virtue of Notification No. 48/1999 would claim double benefit by
having passed on the duty paid to its customers then recovering it in the form
of sale price, even while claiming deduction under Section 80-IB of the Act is
also misconceived and deserves to be rejected at the very threshold. The reason
being, firstly, no such case has been set up by the Revenue before any of the
authorities below. This Court cannot be called upon for the first time to
appreciate submissions which have no factual foundation. Secondly, what is
important to note is that the assessee as mentioned hereinabove is in the
business of manufacturing chewing tobacco and kiwam. These goods by themselves
are not inputs for any other goods and hence, the apprehension of the Revenue
that the assessee would claim a benefit of Notification No. 48/1999 has no
substance.
4.11 In, so far as, the judgments referred to by the learned counsel for
the Revenue are concerned, according to us, they have no relevance with respect
to the issue at hand. In the case of Commissioner of Income Tax v. Sterling
Foods : 237 ITR 579, the Supreme Court was interpreting the provisions of
Section 80 HH of the Act. The Supreme Court was called upon to adjudicate
income derived from the sale of import entitlements granted by the Central
Government under the Export Promotion Scheme which the assessee could use itself
or sell the same to others. The issue before the Supreme Court was whether the
income from such import entitlements could be included in the total income for
the purposes of claiming relief under Section 80 HH of the Act. The Supreme
Court came to the conclusion in the said case that the source of import entitlements was not the industrial undertaking of the assessee. According to
the Supreme Court, the source of import entitlement in the circumstances was
Export Promotion Scheme of the Central Government whereunder the export entitlements became available. The Supreme Court further went on to hold that
the expression ?derived from? entailed a direct nexus between profit and gains
and the industrial undertaking. In that case, the Supreme Court found that the
nexus was not direct but only incidental. According to us, the ratio of this
judgment has no application to the case in the instant case. In the instant
case both the CIT(A), as well as, the Tribunal found that the refund of excise
duty had a direct nexus with the manufacturing activity carried out by the
assessee.
4.12 The second case which was cited by the counsel for the Revenue was Cambay Electric Supply Industrial Co Ltd v. Commissioner of Income Tax, Gujarat-
II: 113 ITR 84. In this case, the Supreme Court was called upon to adjudicate
as to whether the assessee would be required to deduct an unabsorbed development
rebate while arriving at eligible profits under Section 80E of the Act. It is
important to note that at the relevant point of time under Section 80E of the
Act, the expression which obtained in the said provision on which deduction
could be claimed, was, profits and gains ?attributable to? the business specified in the provision. In the instant case, we are not only dealing with a
different expression which is ?derived from? but also facts which are completely
different from those in the said case. According to us this case is completely
distinguishable.
4.13 The third case cited by the learned counsel for the Revenue is Pandian Chemicals Ltd v. Commissioner of Income Tax : (2003) 262 ITR
278. In
this case the Supreme Court was called upon to construe the provisions of
Section 80-HH of the Act, in the background of the claim of the assessee, that
interest on deposits with Tamil Nadu Electricity Board be treated as income
derived by the industrial undertaking of the assessee for the purposes of
deduction under Section 80 HH of the Act. The Supreme Court came to the conclusion that the expression ?derived from? had a much narrower connotation
than the expression ?attributable to? as observed in the earlier decision of the
Supreme Court noted hereinabove, i.e., Cambay Electric Supply Industrial Co Ltd
(supra). The Supreme Court affirmed the decision of the Madras High Court which
disallowed inclusion of interest on deposits made with the Tamil Nadu Electricity Board for the purposes of claiming deduction under Section 80-HH of
the Act. The Supreme Court held that the derivation of the profits on the
deposits made with the electricity Board cannot be said to flow directly from
the industrial undertaking of the assessee. As observed by us while discussing
the decision of the Sterling Foods (supra), in the instant case there is a
finding of fact to the contrary. Hence, ratio of the decision of the Supreme
Court in the said case has no applicability to the facts of the present case.
4.14 The fourth case cited by the learned counsel for the Revenue was Commissioner of Income Tax v. Ritesh Industries Ltd :(2005) 274 ITR
324. A
Division Bench of this Court was called upon to construe the provisions of
Section 80-I of the Act in the context of the claim of the assessee for inclusion of amounts received as ?duty drawback? for the purposes of ascertainment of profits or gains derived from the industrial undertaking within
the meaning of provision of Section 80-I of the Act. The Division Bench of this
Court applying the ratio of the judgments of the Supreme Court in the case of
Sterling Foods (supra), Cambay Electric Supply (supra) as also the judgment of
Madras High Court in the case of Commissioner of Income Tax v. Vishwanathan and
Co : (2003) 261 ITR 737 came to the conclusion that ?duty drawback? could not be
regarded as profit or gain derived from an industrial undertaking as the
immediate and proximate source was not the industrial undertaking but the claim
for ?duty drawback?. The view of the Division Bench of this Court to which one
of us, (i.e., Badar Durrez Ahmed J.) was a party, was based in the context of
the facts obtaining in the said case. In the instant case the proximity with
industrial activity is clear and there is no scope for holding otherwise.
4.15 The fifth case which was cited by the Revenue was of Vishwanathan and Co (supra) : 261 ITR 737. This case need not detain us any further as the
Division Bench of this Court in Ritesh Industries (supra) has referred to the
same. The said case also refers to the provisions of the Act under Section 80
HH of the Act. This case does not deal with the provision of 80 IB of the Act.
The other case on which reliance has been placed by the learned counsel for the
Revenue was Commissioner of Income Tax v. J.B.Exports Ltd : (2006) 286 ITR 603
(Delhi) . A Division Bench of this court was called upon to construe Section
80-I of the Act. A bare perusal of the Section 80-I when compared with Section
80-IB would show that the language of the two provisions is materially different. Section 80-I of the Act allows an assessee to claim deduction in
respect of ?profits and gains derived from an industrial undertaking ??.? As
against this under Section 80-IB, the assessee is entitled to claim deduction
from ?profits and gains derived from any business referred to in business??..?.
The Division Bench relied upon Ritesh Industries (supra) and allowed the appeal
of the Department by holding that money received on account of duty drawback
could not be included in arriving at profits and gains derived from an industrial undertaking for the purposes of claiming deduction under Section 80-I
of the Act. As discussed above, the provision, as well as the language of the
provisions in issue in the case of J.B.Exports (supra) and the instant case are
materially different.
4.16 As against this, the learned counsel for the assessee drew our attention to a judgment of another Division Bench of this Court in the case of
Commissioner of Income Tax v. Eltek SGS P.Ltd : (2008) 300 ITR 6 (Delhi) In
the said case, this Court was called upon to adjudicate as to whether the
assessee would be entitled to include ?duty drawback? in deduction of profits
and gains under Section 80-IB of the Act for the purposes of claiming deduction.
The Division Bench after taking into account the ratio of the judgment of the
Supreme Court in Cambay Electric Supply (supra), as well as, Sterling Food
(supra) came to the conclusion that the expression ?derived from? which the
Supreme Court was called upon to construe in the aforementioned cases and the
expression ?profits and gains derived from any business? were materially
different. The Division Bench went on to hold that for claim of deduction under
Section 80-IB of the Act, there was no requirement that there ought to be a
direct nexus between the activity of industrial undertaking and the profit and
gain in respect of which deduction was sought. In this regard the Division
Bench of this Court in Eltek SGS (supra) has agreed with the observations of the
Division Bench of the Gujarat High Court in the case of Commissioner of Income
Tax v. India Gelatine and Chemicals Ltd : (2005) 275 ITR 284 .
5. Having considered the decisions cited by the learned counsel for the Revenue, as well as, by the counsel for the assessee, we are of the view that in
the instant case, as noted above, the factual aspects are required to be kept in
mind. The finding of the authorities below is, that the, refund of excise duty
is pivoted on the manufacturing activity carried on by the assesse. Once such a
finding of fact has been returned we need not go further and examine the
immediate and proximate source of refund of excise duty. In other words, as to
whether there was direct nexus between the refund of excise duty and industrial
activity. As a matter of fact, in the questions proposed by the Revenue, there
is no specific question, that this finding of the authorities below is perverse.
There is of course a very broad based and general question that the order
passed by the ITAT is perverse in law and on facts. According to us, such a
question is vague. A perusal of the grounds of appeal would substantiate this
aspect of the matter. There is no ground taken by the Revenue whereby the
substantial findings of fact have been challenged by the Revenue as being
perverse.
5.1 An important aspect of the matter which clearly distinguishes the instant case from the facts of the other cases cited before us is, that the net
effect of the accounting methodology employed by the assessee was that it did
not, in sum and substance, impact the derivation of profits and gains ascertainable for the purposes of deduction under Section 80-IB of the Act.
5.2 As noted by the Division Bench of this Court in Eltek SGS (supra), the
language of Section 80-IB is materially different from those obtaining in the
cases cited by the counsel for the Revenue in Sterling Foods (supra), Cambay
Electric Supply (supra) J.B. Exports (supra), Vishwanathan and Co (supra), as
well, as Ritesh Industries (supra). The language with respect to the provisions
referred to in such cases except Cambay Electric Supply (supra), read as
?profits and gains derived from an industrial undertaking? as against the
language appearing in Section 80-IB of the Act which is ?profit and gains
derived from any business?. We respectfully agree with the view of the Division
Bench in Eltek SGS (supra) which has held that the test of proximity, i.e.,
direct nexus with the industrial activity is not necessary while claiming
deduction under Section 80-IB of the Act.
6. In the circumstances, we are of the opinion that the judgment of Tribunal deserves to be sustained. No substantial question of law has arisen
for our consideration. In the result, the appeal is dismissed. RAJIV SHAKDHER, J
BADAR DURREZ AHMED, J
November 27, 2008
mb
ITA 83/2008 1 of 20
REPORTABLE