Delhi High Court
Commissioner Of Income Tax vs Shri Raj Kumar on 14 May, 2009
Author: Rajiv Shakdher
Bench: Vikramajit Sen, Rajiv Shakdher
+* THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 14.05.2009
+ ITA No 1130/2007
COMMISSIONER OF INCOME TAX ..... Appellant
versus
SHRI RAJ KUMAR ..... Respondent
Advocates who appeared in this case:
For the Appellant : Ms Prem Lata Bansal, Sr. Standing Counsel
with Mr M.P. Gupta, Mr Sanjeev Rajpal & Ms Anshul
Sharma, Advocate
For the Respondent : Mr S.K. Khurana, Advocate
CORAM :-
HON'BLE MR JUSTICE VIKRAMAJIT SEN
HON'BLE MR JUSTICE RAJIV SHAKDHER
1. Whether the Reporters of local papers may
be allowed to see the judgment ? Yes
2. To be referred to Reporters or not ?
3. Whether the judgment should be reported Yes
in the Digest ?
RAJIV SHAKDHER, J
1. This is an appeal preferred by the Revenue under Section 260A
of the Income Tax Act, 1961 (hereinafter referred to as the „Act‟)
against the judgment dated 09.03.2007 passed by the Income Tax
Appellate Tribunal (hereinafter referred to as the „Tribunal‟) in ITA
No. 4125/Del/1999 in respect of assessment year 1996-97. The
Revenue is aggrieved by virtue of the fact that by the impugned
judgment the Tribunal has deleted an addition in the sum of
ITA 1130-2007 Page 1 of 20
Rs 12,28,517/- made by the Assessing Officer under Section 2(22)(e)
of the Act.
2. At the time of admission of the appeal we had heard the matter
extensively. By our order dated 22.04.2009 we admitted the appeal on
the substantial question of law set out hereinbelow and had with the
consent of counsel appearing for both parties heard the submissions
with a view to finally adjudicate upon the same. The substantial
question of law on which the appeal was admitted is as follows:-
"Whether trade advances given to the assessee by CEI can
be treated as deemed dividend under Section 2(22)(e) of the
Income Tax Act, 1961?"
3. For the purposes of adjudication of the appeal the following
relevant facts require to be noted.
3.1 The assessee who is a proprietor of a concern by the name of M/s
Premier Engineering Corporation is in the business of manufacturing
customized kitchen equipment. The assessee is also the Managing
Director and holds nearly 65% of the paid-up share capital of
Continental Equipment India (Pvt.) Ltd. (in short „CEI‟).
3.2 A substantial part of the business of the assessee, which is nearly
90%, is obtained through CEI. For this purpose CEI would pass on the
advance received from its customers to the assessee to execute the job
work entrusted to the assessee.
ITA 1130-2007 Page 2 of 20
3.3 During the scrutiny of the return of the assessee for the
assessment year in issue, the Assessing Officer on going through the
balance sheet filed by the assessee along with the return discovered that
the assessee owed a sum of Rs 14,59,770/- to CEI. Admittedly, this
amount was shown by the assessee under the head "advances received
from customers". The assessee was queried with respect to the nature
of the receipt. In response thereto the assessee offered the following
explanation that: nearly 90% of his sales was to CEI; its closing stock
for the accounting period 31.03.1996 was equivalent to Rs 18,43,927/-
which formed part of the sales made in the subsequent year to CEI; the
advances received and shown under the head "advances received from
customers" were trade advances received against future supplies which
was backed by sales made immediately upon manufacture of the goods
in issue; the advances received were not returned by cheque or
otherwise; and in any event, Section 2(22)(e) of the Act did not bring
within its ambit advances received against future supply of goods. In
support of the last submission assessee placed reliance on the judgment
of the Bombay High Court in the case of CIT vs Nagindas M. Kapadia
(1989) 177 ITR 393. The assessee also tried to distinguish the
judgment of the Supreme Court with which he was confronted, that is,
in the case of Miss P. Sarada vs CIT (1998) 229 ITR 444.
ITA 1130-2007 Page 3 of 20
3.4 The Assessing Officer however, was not convinced that the
money received by the assessee was in the nature of an advance
received by CEI from its customers which was passed on to the
assessee towards execution of the job work entrusted to him for
manufacture of customized kitchen equipment. The Assessing Officer
was of the opinion that the money received by the assessee was in the
nature of a loan given by CEI to the assessee who admittedly held more
than 10% of the shares in CEI. Resultantly, the Assessing Officer
concluded that the money received by the assessee was deemed
dividend within the meaning of the provisions of Section 2(22)(e) of
the Act. In view of the fact that the accumulated profits of CEI as on
31.03.1996 was a sum of Rs 12,28,517/- the addition was restricted to
the said amount.
3.5 In coming to the conclusion which the Assessing Officer did, he
distinguished the judgment of the Bombay High Court in Nagindas M.
Kapadia (supra) by relying upon the following observations made on
page 393 of the report:
"Held that only the payments and advances to the extent
of accumulated profits could be treated as loans or
advance within the meaning of Section 2(22)(e) and this
was what the Tribunal had done."
3.6 Furthermore, the Assessing Officer placed reliance on the
judgment of the Supreme Court in P. Sarada (supra) and observed that
the legal fiction had got triggered as soon as the assessee received
ITA 1130-2007 Page 4 of 20
dividend, irrespective of the fact whether or not that there was an
ultimate adjustment or repayment, as it would not alter the fact that the
assessee had received dividend from CEI during the accounting period.
In coming to this conclusion the Assessing Officer also took into
account the communication received from CEI with respect to
confirmation of balance as on 31.03.1996 which indicated that the
assessee had received a sum of Rs 8,35,000/- out of a total of
Rs 14,59,770/- in the form of interest free loan. Based on this
communication the Assessing Officer noted that the said amount i.e.,
Rs 8,35,000/- was received by the assessee from CEI on the following
dates:-
Date on which loan given Amount
14.02.1996 2,50,000/-
16.02.1996 5,00,000/-
16.02.1996 35,000/-
17.02.1996 50,000/-
3.7 The Assessing Officer also went on to hold, based on the copy of
the bank account maintained by the assessee, that the assessee had
spent the amount received as loan from CEI as well as from other
parties, towards acquisition of land and building from DSIDC.
3.8 The Assessing Officer thus, as stated hereinabove, concluded that
the money received by the assessee from CEI was in the nature of
deemed dividend under the provisions of Section 2(22)(e) of the Act.
ITA 1130-2007 Page 5 of 20
4. The assessee being aggrieved preferred an appeal before the
Commissioner of Income Tax (Appeals) [hereinafter referred to as
„CIT(A)‟]. The CIT(A) after examining the matter in great detail
reversed the order of the Assessing Officer. The CIT(A) while doing
so returned the following findings of fact:
(i) The kitchen equipment manufactured by the assessee was
invariably of a specific design and specification which require
considerable period of time for manufacture;
(ii) There was nothing on record to show that the loan advanced by
CEI to the assessee was made out of the accumulated profits of CEI nor
was the advance in any manner related to or connected with the
accumulated profits of CEI;
(iii) After perusing the details of advance received by CEI from its
customers, a substantial part of which was transmitted to the assessee,
he concluded that the amount remained outstanding in the books of the
assessee at the close of the year was not in the nature of a loan or
advance in terms of Section 2(22)(e) of the Act.
(iv) The money received from CEI by the assessee was neither a loan
nor advance in terms of provision of Section 2(22)(e) of the Act.
4.1 We must point out at this stage that the CIT(A) examined in
detail the explanation given by the assessee that the balance
confirmation communication issued by CEI with respect to the sum of
ITA 1130-2007 Page 6 of 20
Rs 8,35,000/- was an inadvertent mistake committed by the accountant
of CEI while confirming the balance of loan amount due with regard to
other parties. The CIT(A) also noted the contention of the assessee that
the amount in issue was correctly reflected in the audited balance sheet
as advance received against supply of goods as on 31.03.1996 and also
the fact that the said balance sheet had been filed along with the return
of income on 25.02.1997; coupled with the fact that the assessee had
clarified the same in his letter dated 25.09.1998.
4.2 The CIT(A) on arriving at a finding of fact, with respect to the
nature of advance, applied the judgment of the Bombay High Court in
the case of Nagindas M. Kapadia (supra) and came to the conclusion
that amounts received with respect to purchase of material could not be
brought within the ambit of Section 2(22)(e) of the Act. The relevant
portion of the judgment on which reliance was placed being apposite is
extracted below:-
"The Tribunal has, on going through the details of the
account, found that payments other than the payment of Rs
28,500 in the assessment year 1968-69 and other than Rs
10,000 in the assessment year 1969-70 were made as
advances towards the purchases to be made by the
company from the assessee. Accordingly, the Tribunal held
that only the sum of Rs 28,500 in the assessment year 1968-
69 and Rs 10,000 in the assessment year 1969-70
represented payments or advances within the meaning of
section 2(22)e) of the Income-tax Act and could be treated
as deemed dividend income."
4.3 Accordingly, the CIT(A) deleted the addition of Rs 12,28,517/-.
ITA 1130-2007 Page 7 of 20
5. The Revenue being aggrieved preferred an appeal to the Tribunal.
The Tribunal after examining the record and upon considering the
submissions made by both sides sustained the decision of the CIT(A).
5.1. In coming to the said conclusion the Tribunal returned the
following findings of fact:
(i) In respect of sum of Rs 8,35,000/- the Tribunal came to the
conclusion, after considering the explanation given by the assessee,
which according to it stood corroborated by the surrounding
circumstances, that it was satisfied that the said sum was not in the
nature of a loan. It took into account the fact that even though the sum
of Rs 8,35,000/- had been received by the assessee on various dates and
had been credited to the Savings Bank account from which cheques
were issued to DSIDC for acquisition of land and building, the said
amount was credited to CEI‟s account maintained in the assessee‟s
book, in one lump sum on 19.12.1996. The fact that it did not bear
interest and that it was adjusted against bills submitted by the assessee
as was evident from the ledger maintained by the assessee, propelled it
to conclude that the said sum was not in the nature of a loan.
(ii) It also found that, out of a sum of Rs 17,60,492/- which was
shown as advance received from customers in the assessee‟s balance
sheet for the period ending on 31.03.1996 Rs 14,59,769/- was due to
CEI. In the said balance sheet the assessee had shown the closing stock
ITA 1130-2007 Page 8 of 20
at Rs 18,43,927/- out of which the assessee sold stock worth
Rs 17,70,170/- between April and August 1996 to CEI. In other words
96% of the closing stock was sold to CEI. From this it was concluded
by the Tribunal that the money received by the assessee from CEI was
used to manufacture kitchen equipment supplied by the assessee to
CEI. Accordingly, the Tribunal concluded that the amount in issue
could not be treated as a loan or advance in terms of Section 2(22)(e) of
the Act as there was no obligation to repay the said sum with or without
interest. The Tribunal agreed with the submissions of the assessee that
the judgment of the Bombay High Court in Nagindas M. Kapadia
(supra) was applicable in the facts of the case as also that the
judgments of the Supreme Court in P. Sarada (surpa) and Smt.
Tarulata Shyam vs CIT (1977) 108 ITR 345 did not deal with the
question in issue.
6. Before us the learned counsel for Revenue Ms Prem Lata Bansal
and that for the assessee Mr S.K. Khurana advocated their respective
cases with great felicity. It was the submission of Ms Prem Lata
Bansal on behalf of the Revenue that the ambit of Section 2(22)(e) of
the Act was wide as it took within its fold any payment which was
received by a shareholder from a company in which public are not
substantially interested and in which he holds more than 10% of the
shares. The learned counsel for the Revenue placed reliance on the
order of the Assessing Officer to contend that a substantial amount out
ITA 1130-2007 Page 9 of 20
of the said sum, that is, Rs 8,35,000/- was not received by the assessee
to give effect to a commercial transaction. She further contended that
the judgment of the Bombay High Court i.e., Nagindas M. Kapadia
(supra) was not in favour of the assessee; as a matter of fact, if at all,
the ratio of the judgment supported the stand of the Revenue. It was
the learned counsel‟s submission that, in any event, even if the finding
of the CIT(A) and the Tribunal is accepted to be correct trade advances
would also fall within the ambit of Section 2(22)(e) of the Act.
7. As against this the learned counsel for the assessee placed great
reliance on the findings and the observation of both the CIT(A) and the
Tribunal. It was contended by the learned counsel that in so far as the
nature of the payment is concerned there is a finding of fact in his
favour that it was in the nature of an advance received to purchase
material for the purposes of executing the job work entrusted to the
assessee. He placed reliance on the judgment of the Bombay High
Court in Nagindas M. Kapadia (supra) to contend that such amounts
did not fall within the ambit of Section 2(22)(e) of the Act. As regards
the judgment of the Supreme Court in the case of P. Sarada (supra)
and Tarulata Shyam (supra) it was the submission of the learned
counsel for the assessee that the same were clearly distinguishable.
8. We have heard the learned counsel for the parties. A perusal of
the order passed by the CIT(A) and impugned judgment of the Tribunal
ITA 1130-2007 Page 10 of 20
clearly establishes that the money received by the assessee from CEI
was in the nature of a trade advance. The learned counsel for the
Revenue has not been able to demonstrate before us that concurrent
findings of fact arrived at both by the CIT(A) and the Tribunal are in
any manner perverse. Both the Tribunal and the CIT(A) after
appreciating the evidence on record, the explanation of the assessee and
the surrounding circumstances categorically rejected the conclusion
reached by the Assessing Officer even with respect to the sum of
Rs 8,35,000/- which the Assessing Officer had concluded was in the
nature of a loan based on an erroneous communication which emanated
from an accountant of CEI. These aspects have already been referred
to in the earlier part of our judgment while recording the findings of the
Tribunal and the CIT(A). We cannot in the present appeal re-appreciate
the evidence or substitute our view with that of the CIT(A) or the
Tribunal unless the same is demonstrably perverse.
8.1 This, however, leaves us with the submission of the Revenue that
even a trade advance could fall within the ambit of Section 2(22)(e) of
the Act. In order to deal with this submission it would be convenient to
extract the relevant part of the provision of Section 2(22)(e) of the Act:-
"2. In this Act, unless the context otherwise requires,-
xxxx
xxxx
(22) dividend includes:
xxxx
ITA 1130-2007 Page 11 of 20
xxxx
(e) any payment by a company, not being a company
in which the public are substantially interested, of any
sum (whether as representing a part of the assets of the
company or otherwise) made after the 31st day of May,
1987, by way of advance or loan to a shareholder,
being a person who is the beneficial owner of shares
(not being shares entitled to a fixed rate of dividend
whether with or without a right to participate in
profits) holding not less than ten percent of the voting
power, or to any concern in which such shareholder is
a member or a partner and in which he has a
substantial interest (hereinafter in this clause referred
to as the said concern) or any payment by any such
company on behalf, or for the individual benefit, of any
such shareholder, to the extent to which the company
in either case possesses accumulated profits."
9. A bare perusal of the aforementioned provision would show that
a payment would acquire the attributes of a dividend within the
meaning of the said provision if the following conditions are fulfilled:-
(i) The company making the payment is one in which public are not
substantially interested.
(ii) Money should be paid by the company to a shareholder holding
not less than ten percent (10%) of the voting power of the said
company. It would make no difference if the payment was out of
the assets of the company or otherwise.
(iii) The money should be paid either by way of an advance or loan or
it may be "any payment" which the company may make on
behalf of or for the individual benefit of any shareholder or also
to any concern in which such shareholder is a member or a
partner and in which he is substantially interested.
ITA 1130-2007 Page 12 of 20
(iv) And lastly, the limiting factor being that these payments must be,
to the extent of accumulated profits, possessed by such a
company.
10. In the background of the facts obtaining in the present case, the
submission of the Revenue is that, any sum paid whether forming part
of assets of the company or otherwise by way of an advance to a
shareholder holding more than 10% of the voting power in a closely
held company would be deemed as dividend. In order to examine this
submission we would have to examine the history and purpose with
which the said provision was brought on to the statute book.
10.1 The immediate precursor to the said provision is found in Section
2(6A) of the Income Tax Act, 1922 (in short the „1922 Act‟). With
passing of the Amendment Act of 1939, Section 2(6A) (a) to (d) was
inserted in the 1922 Act. It is common knowledge that there were
several amendments brought about in the 1922 Act between 1946 and
1958. The attempt was to stem the tide of parallel economy which had
fostered during the Second World War. One such attempt was made by
setting up the Taxation Enquiry Commission (in short the
„Commission‟). The Commission in its report of 1953-54 Volume II
Chapter X, amongst others made the following suggestions with respect
to the definition of the term „dividend‟:
ITA 1130-2007 Page 13 of 20
"36. The other suggestions received by us for the
modification of the definition of the term „dividend‟ may
now be discussed.
We have already drawn attention to the suggestion that
the following items should be included in the definition:-
(i) loans and advances to directors and shareholders of
companies in which the public are not substantially
interested; and
(ii) distributions in the form of deposit certificates or
bearer certificates.
Both suggestions are intended to close loopholes for
drawing upon retained profits of the company without
attracting super-tax liability in the assessment of the
shareholders.
37. The former is confined to companies in which the
public are not substantially interested within the meaning
of section 23A of the Income-Tax Act. The affairs of
such companies are generally under the control of the
principal shareholders who are in a position to utilize
the funds of the company under the guise of loans
without attracting super-tax liability. The Australian and
Canadian laws contain special provisions for the
treatment of such loans as income of the shareholder in
suitable cases. It is clear that the grant of such loans is
capable of being used as a device to evade the objective
of profit retention by the company. We recommend,
therefore, that the law should be amended so as to
empower the income-tax authorities to treat loans and
advances to directors and shareholders of such
companies as dividends, where they are satisfied that
they are made out of the accumulated profits of the
company. It will also be necessary to secure that, when
such loans and advances are set off against dividends
subsequently declared, they are not taxed as dividends a
second time. We suggest that the law on the subject be
modelled on the lines of a similar provision included in
clause 2(c) (iii) of the Income-Tax (Amendment) Bill,
1951."
(emphasis is ours)
10.2 The Finance Minister in his Budget Speech while introducing the
Finance Bill acknowledged the fact that the insertion of clause (e) to
ITA 1130-2007 Page 14 of 20
Section 2(6A) in the 1922 Act was being brought about based on the
recommendations of the Commission. The relevant extract of the
Speech reads as follows:-
"A number of other changes affecting the tax liability are
being included in the amendments to the Income-tax Act
embodied in the Finance Bill for the coming year in
accordance with the recommendations of the Taxation
Enquiry Commission. I do not propose to weary the
House by explaining all of them in detail. Some of these
involve bringing into the net certain incomes which were
not being taxed."
The Amended Section 2(6A)(e) read as follows:-
"3. Amendment of Section 2, Act XI of 1922 - In
Section 2 of the Income-tax Act,-
xxxx
xxxx
(2) in clause (6A),-
xxxx
"(e) any payment by a company, not being a company in
which the public are substantially interested within the
meaning of section 23A, of any sum (whether as
representing a part of the assets of the company or
otherwise) by way of advance or loan to a shareholder or
any payment by any such company on behalf or for the
individual benefit of a shareholder, to the extent to which
the company in either case possesses accumulated
profits;"
10.3 A bare reading of the recommendations of the Commission and the
speech of the then Finance Minister would show that the purpose of
insertion of Clause (e) to Section 2(6A) in the 1922 Act was to bring
within the tax net monies paid by closely held companies to their
ITA 1130-2007 Page 15 of 20
principal shareholders in the guise of loans and advances to avoid
payment of tax.
10.4 Therefore, if the said background is kept in mind, it is clear that
sub-clause (e) of Section 2(22) of the Act, which is pari-materia with
clause (e) of Section 2(6A) of the 1922 Act, plainly seeks to bring
within the tax net accumulated profits which are distributed by closely
held companies to its shareholders in the form of loans. The purpose
being that persons who manage such closely held companies should not
arrange their affairs in a manner that they assist the shareholders in
avoiding the payment of taxes by having these companies pay or
distribute, what would legitimately be dividend in the hands of the
shareholders, money in the form of an advance or loan.
10.5 If this purpose is kept in mind then, in our view, the word
„advance‟ has to be read in conjunction with the word „loan‟. Usually
attributes of a loan are that it involves positive act of lending coupled
with acceptance by the other side of the money as loan: it generally
carries an interest and there is an obligation of re-payment. On the
other hand, in its widest meaning the term „advance‟ may or may not
include lending. The word „advance‟ if not found in the company of or
in conjunction with a word „loan‟ may or may not include the
obligation of repayment. If it does then it would be a loan. Thus,
arises the conundrum as to what meaning one would attribute to the
term „advance‟. The rule of construction to our minds which answers
ITA 1130-2007 Page 16 of 20
this conundrum is noscitur a sociis. The said rule has been explained
both by the Privy Council in the case of Angus Robertson vs George
Day: (1879) 5 AC 63 by observing "it is a legitimate rule of
construction to construe words in an Act of Parliament with reference
to words found in immediate connection with them" and our Supreme
Court in the case of Rohit Pulp & Paper Mills ltd vs Collector of
Central Excise: AIR 1991 SC 754 and State of Bombay vs Hospital
Mazdoor Sabha AIR 1960 SC 610.
10.6 It is important to note that Rohit Pulp (supra) was the case
dealing with taxation. In brief in the said case the assessee was seeking
to take benefit of an exemption notification. The Department denied
the benefit of the „notification‟ on the ground that the paper
manufactured by the assessee was „coated paper‟ to which as per the
proviso to the said notification the concession was not available. The
Supreme Court in coming to the conclusion that the assessee‟s case did
not fall within the proviso and was thus entitled to the benefit of the
notification applied the rule of construction of noscitur a sociis.
10.7 Importantly, the broad principles which emerge from the
judgment of the Supreme Court with regard to the applicability of the
said rule of construction are briefly as follows:-
ITA 1130-2007 Page 17 of 20
(i) does the term in issue have more than one meaning attributed to it
i.e., based on the setting or the context one could apply the narrower or
wider meaning;
(ii) are words or terms used found in a group totally „dissimilar‟ or is
there a „common thread‟ running through them;
(iii) the purpose behind insertion of the term.
10.8 Let‟s examine as to whether based on the aforesaid tests the said
rule of construction „noscitur a sociis‟ ought to be applied in the
instant case.
(i) the term „advance‟ has undoubtedly more than one meaning
depending on the context in which it is used;
(ii) both the terms, that is, advance or loan are related to the
„accumulated profits‟ of the company;
(iii) and last but not the least the purpose behind insertion of the term
advance was to bring within the tax net payments made in guise of loan
to shareholders by companies in which they have a substantial interest
so as to avoid payment of tax by the shareholders;
10.9 Keeping the aforesaid rule in mind we are of the opinion that the
word „advance‟ which appears in the company of the word „loan‟ could
only mean such advance which carries with it an obligation of
repayment. Trade advance which are in the nature of money transacted
ITA 1130-2007 Page 18 of 20
to give effect to a commercial transactions would not, in our view, fall
within the ambit of the provisions of Section 2(22)(e) of the Act. This
interpretation would alloy the rule of purposive construction with
noscitur a sociis, as was done by the Supreme Court in the case of LIC
of India vs Retd. LIC Officers Assn. (2008) 3 SCC 321. The
observation in para 24 of the report being apposite are extracted
hereinbelow:-
"Each word employed in a statute must take colour from
the purport and object for which it is used. The principle
of purposive interpretation, therefore, should be taken
recourse to".
11. A close examination of the judgment of the Bombay High Court
in the case of Nagindas M. Kapadia (supra) would show that the Court
excluded from the ambit of „dividend‟, monies which the assessee had
received towards purchases. In our view both the CIT(A) and the
Tribunal have correctly appreciated this aspect of the matter in the said
judgment of the Bombay High Court. The relevant portion of the
judgment of the Bombay High Court which sets out this aspect of the
matter is already extracted by us in the narrative give by us
hereinabove. We are also in agreement with the view of the Tribunal
that the judgment of the Supreme Court in the case of Ms. P. Sarada
(supra) and Smt. Tarulata (supra) has no applicability to the present
case. Both the judgments establish the principle that once the payment
made to a shareholder is deemed as dividend then the mere fact that it
ITA 1130-2007 Page 19 of 20
is repaid would not take it out of the ambit of the tax net. In the instant
case, however, a discussion with respect to which has been made
hereinabove, the issue is whether the payment received by the
shareholder would at all fall within the four corners of provisions of
Section 2(22)(e) of the Act. Having held otherwise, the said judgments
of the Supreme Court, in our view, will have no applicability to the
facts of the instant case.
12. In view of the above, the question of law as framed by us is
answered in favour of the assessee and against the Revenue. We hold
that trade advance does not fall within the ambit of the provisions of
Section 2(22)(e) of the Act. Resultantly, the appeal is dismissed.
There shall be, however, no order as to costs.
RAJIV SHAKDHER, J.
May 14, 2009 VIKRAMAJIT SEN, J. kk ITA 1130-2007 Page 20 of 20