Karnataka High Court
The Commissioner Of Income Tax vs M/S Wipro Ge Medical Systems Ltd on 2 December, 2016
Bench: Jayant Patel, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2016
PRESENT
THE HON'BLE MR.JUSTICE JAYANT PATEL
AND
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
ITA NO.1058/2008
BETWEEN:
1. THE COMMISSIONER OF
INCOME-TAX,
CENTRAL CIRCLE
C.R. BUILDING
QUEENS ROAD
BANGALORE.
2. THE DEPUTY COMMISSIONER
OF INCOME-TAX
CENTRAL CIRCLE-1(3)
C.R. BUILDING
QUEENS ROAD
BANGALORE.
....APPELLANTS
(BY SRI.K.V. ARAVIND, ADVOCATE)
AND:
M/S WIPRO GE MEDICAL SYSTEM
LTD., PLOT NO.4
2
KADUGODI PLANTATION
INDUSTRIAL AREA
SADARAMANGALA
BANGALORE-560 067.
...RESPONDENT
(BY SMT. S.R. ANURADHA, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 260-A OF
I.T ACT, 1961 PRAYING TO ALLOW THE APPEAL AND SET
ASIDE THE ORDER PASSED BY THE ITAT BANGALORE IN
ITA NO.1020/BNG/2007, DATED 20.06.2008 CONFIRMING
THE ORDER OF THE APPELLATE COMMISSIONER AND
CONFIRM THE ORDER PASSED BY THE DEPUTY
COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(3)
BANGALORE.
THIS APPEAL BEING HEARD AND RESERVED FOR
ORDER, COMING ON FOR PRONOUNCEMENT THIS DAY,
JAYANT PATEL J, PASSED THE FOLLOWING :
ORDER
Appellant - revenue has preferred the present appeal by raising the following four substantial questions of law.
(i) Whether the appellate authorities were correct in holding that when computing deduction u/s 10A of the Act expenditure should be confined to manufacturing division and not equally distributed to all units of respective employee cost based on pay roll, travel and living cost of 3 employees, R & D expenditure etc., by insulating Section 10A of the Act divisions by following earlier years orders, by following the view in the earlier years?
(ii)
(iii) Whether the appellate authorities were correct in holding that when computing deduction u/s 80HHE of the Act the total turnover should be computed on the business carried on by the assessee and not only on the profits of the undertaking which was considered for deduction u/s 80HHE of the Act, by following the view in the earlier years?
(iv)
(v) Whether the appellate authorities were correct in reversing the finding of the assessing Officer that the assessee had not computed the deduction u/s80HHE of the Act by taking the profits of business amounting to Rs.4,01,94,255/- and excluding 90% of agency commission, sundry income, provision no longer required etc., as per Explanation (c) to Section 80HHE of the Act, by following the view in the earlier years?
(vi) Whether the appellate authorities were correct in reversing the finding of the assessing Officer that the non-competition fee of Rs.1,18,14,504/- paid in respect of Marquette range of products was not a revenue expenditure and 4 consequently the claim of ¼ of the same being written off in the accounts amounting to Rs.29,53,625/- during the current assessment year was not justified, by following the view in the earlier years?"
2. Short facts of the case are that assessee is in the business of manufacturing and trading of diagnostics and medical system. In respect of the assessment year 2000-01, assessee filed a return of income. Assessee claimed deduction under Section 10A of the Income Tax Act, 1961 (hereinafter referred to as 'Act') as well as deduction under Section 80HHE of the Act and further contended that non-
competition fee was not liable to tax. Assessing officer at the conclusion of assessment order, held that certain deductions in the expenditure of the respective employees based on pay roll, travel, living cost and R & D expenditure of the employees of all the divisions was not permissible and he worked out deduction under Section 10A of the Act. So far as deduction claimed under Section 80HHE of the Act is concerned, he held that same should be on the total 5 turnover computed on business carried out by the assessee and not only on the profit of the undertaking. He also found that assessee had not computed the deduction under Section 80HHE of the Act by taking profit of the business amounting to Rs.4,01,94,255/- and excluding 90% of the agency commission, sundry income, etc. The assessing officer also found that non-competition fee of Rs.1,18,14,504/- was not the revenue expenditure and the claim for writing off ¼ of same in the accounts was not justified and ultimately he computed the tax payable.
3. Matter was carried in appeal and appellate Commissioner (Appeals) reversed the finding of assessing officer and accepted the contention of assessee following the earlier view taken by the Department in respect of the very assessee for the earlier assessment year.
4. Matter was further carried in appeal before the Tribunal and the Tribunal upheld the finding of appellate Commissioner (Appeals) by relying upon its earlier view in 6 the appeal decided by it in ITA No.714/Bang/2003 for the same assessee for the assessment year 1999-2000. Under the circumstances, present appeal before this Court is filed.
5. We have heard Mr.K.V.Aravind, learned counsel appearing for appellant-revenue and Smt.Anuradha, learned counsel appearing for respondent - assessee.
6. We may at the outset mention that first question is covered by decision of this Court in ITA No.776/2006 dated 05.11.2013 which arose from the decision of the Tribunal in ITA No.714/Bang/2003 for which reference has been made by the Tribunal and reliance is also placed in the impugned decision of the Tribunal. However, since in the decision of this Court in ITA NO.776/2006 dated 05.11.2013 there is reference to the earlier decision made by this Court, learned counsel appearing for appellant - revenue has brought to our notice that such can be as per the decision dated 25.08.2010 passed by this Court in ITA No.507/2002.7
7. We may record that in decision of this Court dated 25.08.2010 in ITA No.507/2002 at paragraphs 23 to 28 on similar question, this Court observed thus:
"23. The 7th substantial question of law which is framed is as under:
"26. Whether the Tribunal is correct in holding that the corporate overheads remaining unallocated under section 10(A) of the Act including interest can be notionally attributed to the units claiming exemption under section 10(A) of the Act."
24. The assessee is engaged in diverse business carried out through its various divisions. The assessee maintains separate accounts for each of its divisions and sub- divisions and the units set-up under EHTP/STP are also eligible for exemption under Section 10A of the Act. Some other divisions are either eligible for deduction u/s.80HH, S.80-I and S.80-IA of the Act. Some of these are not eligible for any sort of exemptions/deduction. The assessee, as it is maintaining separate accounts for its divisions is claiming exemptions and deductions under the Act. The accounts are audited and no defects have been pointed out by the Assessing Officer. The units claiming exemption u/s.10A of the Act are having substantial profits.
25. There is also a surplus fund with the eligible units under section 10A of the Act.
8The actual interest paid for such unit on its turnover is calculated on its profits. The assessee is also required to maintain its corporate office and employ various persons. Insofar as the administration expenses are concerned, the assessee has allocated the same for various units and even in respect of the software units the expenses were allocated. However, when the claim of interest is made u/s.36(1)(iii) of the Act, it is borrowed for the purpose of business and it is not applicable for an undertaking claiming exemption u/s.10A of the Act. However, the Assessing Officer as well as the Commissioner of appeals proceeded on the assumption that the assessee is not entitled to claim deduction of the total expenditure claimed by them as the expenditure incurred in respect of a 10A unit cannot be claimed as an expenditure u/s.36(1)iii of the Act. The income of such unit is not included in the total income.
26. It is the correctness of the said finding which was challenged before the Tribunal. The Tribunal on appreciation of the admitted facts of the case held, in the absence of any specific finding by the authorities below that the expenditure is incurred by various units claiming exemption/deduction, artificial way of allocating is not justifiable. The profits of undertaking under Section 10A of the Act is correctly worked out and no artificial working can be attributed thereto and therefore, it set aside the orders of the authorities below and granted the deduction claimed by the assessee in full. Challenging the said finding the learned counsel for the appellant submitted that the assessee failed to give the particulars of the expenses incurred in respect of each units and 9 the authorities had no option except to allocate the expenditure claimed i.e., the expenditure in proportion to the profits earned by each unit. When admittedly 10A units is the only profit earning unit, one of the profit earning unit and the profit earned by the said unit is more than the profit earned by the other units, the authorities were justified in allocating a major portion of the expenditure to the 10A unit. The income of the lower units is based on misreading of the material on record. It is not in dispute. The bifurcation of the financials of Wipro Infotech is furnished and it is at page 273 of the first appellate order which reads as under:-
A Expenses 7,37,98,774
consisting of
salaries, Travel etc.
excluding interest
less revenues
Less: Recoveries from 4,93,49,416
sub-divisions other
than software
exports sub-division
Sub-total 2,44,49,358
Less: Recoveries from 3,70,00,000
software exports
sub-division.
A Excess recoveries (1,25,50,642)
B Interest outgo to 20,11,34,657
intra business and
external agencies
Less: Interest earned 9,38,24,255
from deployment of
funds intra-business
and with external
agencies
10
B Net Interest outgo 10,73,10,402
Net Less (A+B+ 9,47,59,760
27. A perusal of the aforesaid statement shows the Corporate Office has spent a sum of Rs.7,37,98,774/- towards the expenses consisted of salaries etc. excluding interest less revenues. They allocated a sum of Rs.4,93,49,416/- to the various sub-divisions other than the soft ware export sub-division. Similarly they have recovered a sum of Rs.3,70,00,000/- from software exports sub- division in the process the excess recoveries is 1,25,50,642/-. Further, a sum of Rs.20,11,34,657/- is the interest out go to intra business and external agencies. The interest earned from deployment of funds intra-business and with external agencies is Rs.9,38,24,255/-. The net interest outgo is 10,73,10,402/-.
28. it is this amount which they were claiming as deduction. In the light of the aforesaid facts it does not represent the expenditure incurred by the Corporate Office in respect of its sub-divisions. In those circumstances, the Assessing Officer and the First Appellate Authority were not justified in allocating the substantial portion of the amount as the expenses incurred in respect of Section 10A and disallowing the deduction. That is precisely what the Tribunal has held on proper appreciation of the material on record. In that view of the matter we do not find any justification to interfere with the well considered order of the Tribunal. Accordingly, this question of law is answered in favour of the assessee and against the Revenue."
11In view of the aforesaid reasoning so recorded by this Court that question is already covered by the above decision, question No.(i) is answered in favour of the assessee against the revenue.
8. So far as question No.2 is concerned, it appears that same is covered by another decision of this Court dated 28.02.2012 in ITA No.3204/2005 wherein at paragraph 7 it has been observed thus:
"7. But Questions Nos. 5 to 7 are recast to bring out the actual controversy.
The substantial question of law that arises for consideration is as under:
a."In calculating the profits from export of computer software under Section 80HHE of the Income Tax Act, whether the total turnover includes the turnover of all the businesses carried on by the assessee or is it to be confined to the total turnover of computer software business only?"
b. "5. Whether the Tribunal committed an error in holding that deduction under section 80HHE of the Act can be allowed even if the claim for such a deduction is not 12 made in the return along with audit report within time stipulated under the provision as the provisions are directory and not mandatory?"
Section 80HHE of the Act deals with deduction in respect of profits from export of computer software etc. which reads as under:
"80HHE (1) Where an assessee, being an Indian company or a person (other than a company) resident in India, is engaged in the business of, -
(i) export out of India of computer software or its transmission from India to a place outside India by any means;
(ii) providing technical services outside India in connection with the development or production of computer software, there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction to the extent of the profits, referred to in sub-section (1B), derived by the assessee from such business;
Provided that if the assessee, being a company, engaged in the export out of India of computer software, issues a certificate referred to in clause(b) of sub-section (4A), that in respect of the amount of the export specified therein, the deduction under this 13 sub-section is to be allowed to a supporting software developer, then the amount of deduction in the case of an assessee shall be reduced by such amount which bears to the total profits derived by the assessee from the export, the same proportion as the amount of the export turnover specified in such certificate bears to the tota export turnover of the assessee.
xxxxx xxxx (3) For thepurposes of sub-section (1), profits derived from the business referred to in that sub-section shall be the amount which bears to the profits of the business, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee.
xxxx xxxx (5) Where a deduction under this section is claimed and allowed in respect of profits of the business referred to in sub-section (1) for any assessment year, no deduction shall be allowed in relation to such profits under any other provision of this Act for the same or any other assessment year.
Explanation - For the purposes of this section, -
xxxx xxxx (c) "export turnover" means the
consideration in respect of computer software received in, or brought into, India by the assessee in convertible foreign exchange in accordance with sub-section (2), but does not include freight, telecommunication charges or insurance 14 attributable to the delivery of the computer software outside India or expenses, if any, incurred in foreign exchange in providing the technical services outside India; xxxx
(d) "profits of the business" means the profits of the business as computed under the head "Profits and gains of business or profession" as reduced by -
(1) ninety per cent of any receipts by way of brokerage, commission, interest, rent, charges or any other receipt of a similar nature included in such profits; and (2) the profits of any branch, office, warehouse or any other establishment of the assessee situate outside India;
(e) "total turnover" shall not include -
(i) any sum referred to in clauses (iiia), (iiib) and (iiic) of Section 28;
(ii) any freight, telecommunication charges or insurance attributable to the delivery of the computer software outside India; and
(iii) expenses, if any, incurred in foreign exchange in providing the technical services outside India;
xxxx"
From the aforesaid provision, it is clear, that for attracting Section 80HHE of the Act, the following conditions have to be fulfilled.
i. The assessee being an Indian Company or a person resident in India, is engaged in the business of export out of India of computer software or its transmission from 15 India to a place outside India by any means.
ii. Providing technical services outside India in connection with the development or production of computer software.
While computing the total income of the assessee, the deduction to the extent of profits referred to in Sub-Section 1(b) derived by the assessee from such business namely business of computer software is allowed. Sub-Section (3) provides that for the purposes of Sub-Section (1), profits derived from the business referred to in that sub-Section shall be as under:
Profits from export of Profits of the Computer software = business of the Computer software x export turnover Total turnover of the business Sub-Section (5) makes it clear that where the deduction under this Section is claimed and allowed, no deduction shall be allowed in relation to such profits under any other provisions of this Act for the same or any other assessment year. In other words, if the assessee chooses to claim benefit of Section 80HHE, even though there are several provisions granting deductions in respect of profits derived from export, the assessee would not be entitled to the benefit of the aforesaid provisions. Once deduction is claimed under this provision, he is disentitled from claiming under any other provisions of this Act. In other words, once this 16 provision is attracted to such profits, all other provisions are excluded. The explanation to the Section gives a definition of various words and phrases used in the Section. As the opening words of the explanation makes it clear, these definitions have to be construed only for the purpose of this Section, that is Section 80HHE of the Act. Therefore, in order to decide the profits derived from the business of computer software, one of the component is export turnover. As per the aforesaid definition, it means the consideration in respect of computer software received in or brought into India by the assessee in convertible foreign exchange, but it does not include freight, telecommunication charges or insurance attributable to the delivery of the computer software outside India or expenses, if any, incurred in foreign exchange in providing the technical services outside India. Therefore, all these expenses have to be excluded from the component of export turnover. Similarly, in view of the definition of total turnover, the income under Clause (iiia), (iiib), (iiic) of Section 28 have to be excluded.
After arriving at this export turnover and total turnover in the aforesaid manner, one has to calculate the profits of the business of computer software, which is also defined as the profits of the business as computed under the head 'profits and gains of business or profession' as reduced by 90% of any receipts by way of brokerage, commission, interest, rent, charges or any other receipt of a similar nature included in such profits and the profits of any branch, office, warehouse or any other establishment of the assessee situate outside India.
17The argument is that the total turnover of the business is not necessarily to be confined to the business of computer software. It is to be noted in the context of the total turnover of all the businesses carried on by the assessee. In support of that contention, reliance is placed on the case of COMMISSIONER OF INCOME-TAX V/S. K.RAVINDRANATHAN NAIR reported in [2007] 295 ITR 228 where the Hon'ble Supreme Court had an occasion to interpret the total turnover of the businesses with reference to Section 80HHC. Relying on the aforesaid judgment of the Apex Court, it was argued that the total turnover of the business included the turnover of all the businesses of the assessee and may not be confined to only the business of computer software.
The difference between Section 80HHC and Section 80HHE of the Act is to be noted. Prior to 1st April 1986, the head note of Section 80HHC defined 'deductions in respect of profits retained for export business'. The said head note was amended and the present head note, 'deduction in respect of profits retained for export business' was substituted, by the Finance Act of 1985 and came into effect by 1st April 1986. Therefore, the very basis shifted from export turnover to export business. The Heading of Section 80HHE is 'deductions in respect of profits from export of computer software, etc.' That is the first distinction which is to be borne in mind which distinguishes Section 80HHE from Section 80HHC is the head note of deduction. Section 80HHE allows deductions in respect of profits from export of computer software etc. Secondly, Section 80HHC is applied to an Indian company or a person 18 resident of India who is engaged in the business of export outside India of any goods or merchandise to which the Section applies. The said Section was made applicable to goods or merchandise other than those specified in Clause(b) of Sub-Section (2) and only the goods or merchandise namely mineral oil, minerals and ores other than processed minerals and ores specified in the 12th Schedule were excluded. In other words, this Section is applied to all goods and merchandise other than those which are exempted. Therefore, it included computer software also on the day the aforesaid Section was enacted. The said Section also provides for how profits derived from such export shall be determined under Sub-Section(3) of Section 80HHC. Further the explanation to the Sub- Section also states that for the purpose of the said Section, the meaning attributable to 'export turnover', 'total turnover', 'profits of the business'. In interpreting Section 80HHC and 'total turnover', in the aforesaid judgment, the Apex Court has categorically held that the total turnover includes the turnover of the assessee from all businesses.
The C.B.D.T. Circular issued explaining the tax concessions for the export of computer software and for import of software as under:-
34. With a view to providing fiscal incentive for promoting export of computer software, a new section 80HHE has been inserted in the Income-tax Act for providing tax concession similar to those available under Section 80HHC of the Income-tax Act in relation to commodity exports.19
34.1 Under the new provisions, Indian companies and resident non-corporate taxpayers will be eligible for a deduction, in computing their taxable income, of an amount equal to the profits derived from export of computer software.
34.2 The broad features of the new provision are as under:
(i) The tax concession will be available with regard to profits from export of software not only through magnetic media or on paper but also through satellite data link and consultancy delivered at the location of foreign client outside India.
(ii) The tax concession will be available only in case where the export profits are received in or brought into India in convertible foreign exchange within six months of the end of the relevant financial year or within such further period as the Commissioner of Income-tax may allow.
(iii) It will be necessary for claiming the tax concession that the taxpayer furnishes along with the return of income a report of a chartered accountant in the pro forma to be prescribed in the Income-tax Rules, certifying the correctness of the claim for deduction.
(iv) The tax concession will be available with reference to export profits derived during the financial years 1990-91, 1991-92 and 1992-93 relevant to 20 assessment years 1991-92 and 1992-93 and 1993-94 respectively."
Section 80HHE provides that where an assessee being an Indian Company or a person (other than a company)resident in India, is engaged in the business of export out of India of computer software or its transmission from India to a place outside India by any means or in providing technical services outside India in connection with the development or production of computer software, he shall be allowed a deduction in computation of his total income of the profits derived by him in respect of export of computer software on the condition that the consideration in respect of computer software is received or brought into India in convertible foreign exchange within a period of 6 months from the end of the previous year or such extended period as the Commissioner may allow in this behalf. Therefore, the business that is referred to in the aforesaid Section is business in computer software or providing technical services. The deduction is to the extent of the profits derived by an assessee from such business namely, computer software export business or technical services provided in connection therewith. Sub- Section (3) of Section 80HHE provides how the profits from such business is to be arrived at. The opening words of sub-Section (3) is of utmost importance. It reads as under:-
"(3) For the purposes of sub-
section(1), profits derived from the business referred to in that sub-section shall be the amount which bears to the profits of the business, the same 21 proportion as the export turnover bears to the total turnover of the business carried on by the assessee."
The word "export turnover" has been defined for the purpose of this Section which means the consideration in respect of computer software received or brought into in India by the assessee in convertible foreign exchange. Similarly the total turnover for the purposes of this Section has been defined as it shall not include the amounts mentioned therein which is also not included in the export turnover. The word "profits of the business" is also defined for the purpose of this Section and means the profits of the business as computed under the head profits and gains of business or profession and reduced by the factors mentioned therein. Sub- Section(5) of Section 80HHE makes it clear that where a deduction under the Section is claimed and allowed in respect of the profits of the business referred to in sub-Section (1) for any assessment year no deduction shall be allowed in respect of such profits under any other provision of this Act for the same or any other assessment year. Therefore these provisions have to be understood with reference to such business referred to in sub-Section(1). Therefore in computing the profits from export of computer software what has to be taken into consideration is only the profits from the business of computer software and export turnover which is to be divided by the total turnover of the business of computer software. The business of computer software may include export as well as domestic sales. Both have to be taken into consideration in arriving at the total turnover. There is no 22 difficulty in so far as the export turnover is concerned. The only limitation is that the factors mentioned therein has to be excluded in arriving at export turnover. Then we have to look into the profits of the computer software business which may include profits from export as well as domestic sales. As sub-Section(1) is very clear that what is to be taken is the profits derived by the assessee from "such business". The said business does not include the other business which the assessee may be carrying on. "Such business" specifically referred to the business dealt with under sub-Section(1) that is the business of computer software as well as business of technical services outside India. Even if the assessee is carrying on the business in other goods, for the purpose of computing the profits from export business determining the profits from computer software business the profits derived from other business have to be excluded. Therefore the formula prescribed in sub-Section(3) may be understood as under:-
Profits from export of computer software = profits from computer software export business (inclusive of domestic profits of such business) X (Export turnover) ________________________________________________ Total turnover (export and domestic turnover of such business of export of computer software) When the Assessing Authority issued notice under Section 143(2) and took up the case for scrutiny assessment, the assessee in the said proceedings realized that various 23 disallowances were contemplated by the Assessing Authority resulting in an enhancement to the gross total income. Therefore, for the first time in the said proceedings, the assessee put forward its claim on 15.03.2002 for the deduction under Section 80HHE supported by a certificate from a Chartered Accountant in the prescribed form with reference to the business of export of computer software eligible for deduction under Section 80HHE.
Though the said certificate ought to have been produced along with the return filed as in the proceedings under Section 143(3) the determination of the tax liability of the assessee is to be decided. If in law, he is entitled to certain benefits under the Act, merely on the ground that the certificate of the Chartered Accountant was not enclosed along with the returns filed within the stipulated time, he cannot be denied the said benefit. In fact, the assessee had not even put forth the claim for benefit under the said provision. During the course of proceedings under Section 143(3), the Assessing Authority contemplated additions. Then the assessee opened his eyes, looked into the law and put forth the claim to which he is entitled to in law. Therefore, the question that arises for consideration is whether the assessee is entitled to the benefit under the law under Section 80HHE. If he is entitled to the benefit that cannot be denied to him on the ground that the benefit had not been claimed or such a claim had not been put forth originally. Therefore, it is necessary to find out whether he is entitled to benefit under Section 80HHE as claimed in the proceedings under Section 143(3) of the Act. "24
Aforesaid shows that similar question has already been examined by this Court and has been answered in favour of the assessee against revenue. As the question is already covered by the above referred decision, said question No.(ii) shall stand answered in favour of the assessee against revenue.
9. However, learned counsel appearing for appellant - revenue did contend that so far as question Nos.(iii) & (iv) are concerned, there is no discussion at all by the Tribunal. He further contended that even if question Nos.(i) and (ii) are answered in favour of the assessee against the revenue, then also Tribunal being ultimate fact finding authority could have examined the facts and they could have considered the appeal of the revenue and as the same has not been done, this Court may remand the matter to the Tribunal for further examination.25
10. The learned counsel appearing for the Assessee is unable to show any specific discussion in the impugned order of the Tribunal for consideration of the facts concerning to questions (iii) and (iv). Not only that, but even if it is considered that question nos.(i) and (ii) are answered in favour of the assessee, then also, the Tribunal will be required to consider the facts of the present case and thereafter will have to record the ultimate conclusion. Since there is no discussion on facts to that extent by the Tribunal, we find that so far as consideration of question nos. (iii) and (iv), matter may be required to be remanded to the Tribunal. Suffice it to observe that the Tribunal will examine the facts and figures in light of question nos.(i) and
(ii) answered in favour of the assessee and will give opportunity of hearing to the Revenue as well as to the assessee and shall pass the appropriate orders in accordance with law.26
11. In the result, question Nos.(i) and (ii) are answered in favour of the assessee against the Revenue.
So far as consideration of facts of the present case is concerned, in light of question Nos.(iii) and (iv) formulated, matter is remanded to the Tribunal.
The appeals are partly allowed to the aforesaid extent.
Considering the facts and circumstances, no order as to costs.
SD/-
JUDGE SD/-
JUDGE *sp