Income Tax Appellate Tribunal - Mumbai
Tata Chemicals Ltd. vs Deputy Cit on 28 June, 2007
ORDER
Sushma Chowla, Judicial Member
1. These two appeals by the assessee-company are against the separate orders of Commissioner (Appeals)-XXXI, Mumbai, both dated 28-3-2005 relating to assessment year 1997-98 against order under Section 250 of the Income Tax Act. Both these appeals relating to the same assessee were heard together and are being disposed off by this consolidated order for the sake of convenience.
2. The assessee has raised same grounds in both the appeals, which are asunder:
1. The learned Commissioner (Appeals) erred in confirming the action of the assessing officer in not granting interest under Section 244A on the amount of refund of tax deducted under Section 195 to the appellant company.
2. The learned Commissioner (Appeals) further erred in rejecting the appellant's contention that payment of tax in consequence of an order passed under Section 195(2) of the Act is also payment made under Section156 of the Income Tax Act.
3. The learned Commissioner (Appeals) erred in applying the case laws which has no direct relevance to the facts of the appellant's case.
4. Without prejudice and in the alternative, the appellant submits that interest should be granted under Section 244A(l)(a) on the refund of TDS paid in pursuance of order under Section 195(2).
3. Mr. Ojas Choksi, learned Counsel appeared for the assessee and Mr. A.K. Mehrish, departmental Representative appeared for the revenue and put forward their contentions.
4. The brief facts of the case relating to ITA No. 3531/Mum./2005 are that the assessee-company had commissioned its naptha desulphurization plant and in order to check the operation of the new plant, the assessee-company called two technicians from M/s. Haldor Topsoe, Denmark. Two invoices were raised by the said company in Denmark aggregating to US $ 43,290.06 comprising of service charges for services of technicians, US $ 38,500 and reimbursement of expenses US $ 4,790.06. It was submitted before the assessing officer that as per the DTAA between India and Denmark, tax is to be deducted only from payment of service charges and no tax is to be deducted on reimbursement of expenses. The assessing officer, however, held that the entire remittance would be subject to tax under the provisions of Section 195 of the Income Tax Act and vide his order dated 27-6-1996, the assessee was directed to deduct tax @ 20 per cent on the entire amount of US $ 43,290.06. The Commissioner (Appeals) vide his order in appeal No. Commissioner (Appeals) XXXI/IT.9/96-97/02-03, dated 12-7-2002 held that reimbursement of expenses was not part of income for deduction of tax at source and directed the assessing officer to refund the tax deducted on the amount of US $ 4,790.06. The assessing officer while giving effect to the Commissioner (Appeals)'s order refunded the tax of Rs. 22,005, but did not allow interest under Section 244A of the Income Tax Act. The assessee is aggrieved against the said non-allowability of interest under Section 244A of the Income Tax Act and preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) upheld the order of assessing officer holding that the payment of tax done in accordance with the order under Section 195(2) of the Act is not equivalent to the payment made as per demand under Section 156 of the Income Tax Act. The Commissioner (Appeals) also held that the deposit of TDS by the appellant and order to be refunded by the Commissioner (Appeals) cannot be equivalent with the refund contemplated in Clause (b) of Section 244A(1) of the Act i.e., refund of excess payment made pursuant to issue of notice of demand under Section 156 of the Income Tax Act. The Commissioner (Appeals) relied on the decision of Delhi Tribunal in Sutlej Industries Ltd v. Asstt. CIT (2003) 86 ITD 335, wherein no interest under Section 244A(1)(B) of the Act was allowed on excess payment of self-assessment taxes.
5. The brief facts of the case relating to ITA No. 3532/Mum./2005 are that the assessee-company had placed an order for supply of designs and drawings of their plant finalized with M/s. Chemische Fabrik Kalk Gmbh, Germany. The necessary drawings were supplied to the assessee and as per the Import Regulation, import duty was paid by the assessee-company and the delivery of designs and drawings was made to it. The assessee company requisitioned the assessing officer to grant a No Objection Certificate for the remittance of cost of designs and drawings aggregating to DM 6,00,000, without deduction of tax at source. The assessing officer however, directed the assessee-company to deduct tax @ 20 per cent on the entire amount of DM 6,00,000, which the assessee-company deducted and paid and thereafter effected the remittance. In appeal, the Commissioner (Appeals) vide his order in appeal No. Commissioner (Appeals) XXXI/IT. 12/96-97/02-03, dated 12-7-2002 held that sale/purchase of technical documents is not royalty as per article 12 of the DTAA between India and Germany and also as per Section 9 of the Income Tax Act. The Commissioner (Appeals) allowed the appeal of the assessee and directed the assessing officer to refund the tax. The assessing officer while giving effect to the Commissioner (Appeals)'s order refunded the tax of Rs. 27,84,000 but did not allow interest under Section 244A of the Income Tax Act. The assessee is aggrieved and filed an appeal before the Commissioner (Appeals), who rejected the claim of the assessee making similar observations as in order of Commissioner (Appeals) in ITA No. 3531 /Mum./2005. The assessee is aggrieved by both the above said orders of Commissioner (Appeals) and is in appeal before us against the same.
6. The issue in both the appeals is the grant of interest under Section 244A of the Income Tax Act on the amounts paid by the assessee, in compliance to the order issued under Section 195 of the Income Tax Act. The learned AR for the assessee pointed out that the facts in the present two appeals are similar to the effect that the permission was sought from the assessing officer to remit the amounts to Denmark and Germany. The assessing officer, however, passed order under Section 195(2) of the Income Tax Act dated 27-6-1996 requisitioning the assessee to deduct tax at source before remitting the amounts. The assessee accordingly deducted and paid tax of Rs. 27,84,000 on 17-7-1996 and Rs. 22,005 also on 17-7-1996 in pursuance to the order under Section 195(2) of the Income Tax Act. The learned AR further pointed out that the order giving effect to the order of Commissioner (Appeals) was passed on 29-7-2003 and the assessing officer relying on Circular Nos. 769 and 790 held that only tax is to be refunded to the deductor. The learned AR for the assessee further pointed out that the Circulars could not override the clear provisions of the Act and in any case the said Circulars do not cover the relief sought by the assessee. The learned AR further pointed out that in view of the decision of Mumbai Tribunal in Addl. CIT v. Grindwell Norton Ltd. (2006) 6 SOT 601, wherein it has been held that interest under Section 244A is allowable on the excess payment of self-assessment taxes, the interest is also allowable under Section 244A of the Act. The learned AR also placed reliance on the decision of Hon'ble Supreme Court in Sandvik Asia Ltd. v. CIT and Tribunal's decision in Hooghly Mills Co. Ltd. v. Dy. CIT (2000) 74 ITD 309 (Cal.). The facts of the present case being similar the assessee is entitled to the claim of interest in view of the provisions of Section 240 and Section 244A of the Income Tax Act. The learned DR relying on the order of Commissioner (Appeals) stated that no appeal lies on non-granting of interest under Section 244A of the Income Tax Act and the assessee should have moved the assessing officer under the provisions of Section 154 of the Income Tax Act and thereafter appealed against the said order in case of his claim being rejected. The second contention raised by the learned DR is that the refund granted under Section 195(2) of the Income Tax Act is not covered under the provisions of Section 244A of the Income Tax Act. In rejoinder, the learned AR for the assessee submitted that Section 248 of the Income Tax Act allows the assessee to file an appeal against the order under Section 195(2) of the Income Tax Act. Once the Commissioner (Appeals) has granted the relief and refund arises to the assessee, the assessee is empowered to appeal against the non-granting of any part of refund under Section 240 of the Income Tax Act.
7. We have heard the rival submissions and perused the records. In the facts of the present case, the assessee had deducted taxes on the amounts remitted to Denmark/Germany pursuant to order under Section 195(2) of the Income Tax Act passed on 15-7-1996. The sum of Rs. 27,84,000 and Rs. 22,005 was paid to the exchequer on 17-7-1996. In appeal, the Commissioner (Appeals) held that the assessee was not required to deduct tax on such remittances remitted by the assessee-company. Accordingly, the assessing officer was directed to refund the taxes deposited pursuant to order under Section 195(2) of the Income Tax Act. The assessing officer while granting relief to the assessee though determined refund of amount paid to the assessee on account of tax deducted by the assessee-company prior to remittance of the said amounts, but refused to grant any interest under Section 244A of the Income Tax Act.
8. Under the provisions of Section 195(2) of the Income Tax Act, the assessee is empowered to make an application to the assessing officer for non-deduction of tax on such sums remitted to a non-resident which according to the assessee are not subject to tax at source. In view of the provisions of DTAA between the two countries, under the said Sub-section (2) to Section 195 of the Income Tax Act, the assessing officer is empow-ered to determine such sum which are deductible out of remittance to be sent to the recipient and only after deduction and payment of such sums, the balance amount is to be remitted to the non-resident. In compliance to the order of the assessing officer, the assessee herein had deducted the tax at source before remitting the amounts to Germany/Denmark and the said tax was paid on 17-7-1996.
9. The order under Section 195(2) of the Act is appealable under the provisions of Section 248 of the Income Tax Act, which provides as under:
Any person having in accordance with the provisions of Sections 195 and 200 deducted and paid tax in respect of any sum chargeable under this Act, other than interest, who denies his liability to make such deduction, may appeal to the Commissioner (Appeals) to be declared not liable to make such deduction.
10. Section 248 of the Income Tax Act clearly provides that after deduction and payment of tax in accordance with the provisions of Sections 195 and200 of Income Tax Act, where the assessee denies his liability to make such deduction, is empowered to file an appeal before the Commissioner(Appeals) in order to get a declaration that he/it is not liable to make such deduction. The manner of filing the appeal, limitation of powers of Commissioner (Appeals) entertaining such appeal are provided under Section 249 of the Income Tax Act and Sub-section (4) to Section 249 of the Act very categorically provides as under:
No appeal under this Chapter shall be admitted unless at the time of filing of the appeal:
(a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or
(b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him:
Provided that, (in a case falling under Clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause.
11. Thereafter, the procedure in appeal as in a regular appeal filed under Section 246/246A of the Income Tax Act and also under the provisions of Section 248/249 of the Income Tax Act is same as provided in Section 250 of the Income Tax Act. In the present facts and circumstances of the case, the Commissioner (Appeals) granted relief to the assessee holding that no tax is deductible out of the remittances made to Denmark/Germany and directed the assessing officer to refund the amount of tax so deposited by him.
12. Pursuant to the orders of Commissioner (Appeals) under Section 250 of the Income Tax Act, Section 240 of the Act provides as under:
240. Where, as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee, the assessing officer shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf:
Provided that where, by the order aforesaid:
(a) an assessment is set aside or cancelled and an order of fresh assessment is directed to be made, the refund, if any, shall becomedue only on the making of such fresh assessment;
(b) the assessment is annulled, the refund shall become due only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee.
13. The provisions of Section 240 of the Act very categorically provides that where an order is passed in appeal, or other proceedings under the Act, the assessing officer is duty bound to refund amount due to the assessee even without the assessee making any claim in that behalf. In addition to the refund of amount due to the assessee is also entitled to interest on such refund under the provisions of Section 244A of the Income Tax Act. Once the provisions of Section 240 are applicable to the amount paid by the assessee as tax, the provisions of Section 244A of the Act are applicable thereafter.
14. Section 244A of the Income Tax Act provides as under:
244A. (1) Where refund of any amount becomes due to the assessee under this Act, he shall, subject to the provisions of this section, be entitled to receive, in addition to the said amount, simple interest thereon calculated in the following manner, namely:
(a) where the refund is out of any tax paid under Section 115WJ orcollected at source under Section 206C or paid by way of advancetax or treated as paid under Section 199, during the financial yearimmediately preceding the assessment year, such interest shall becalculated at the rate of one-half per cent for every month or partof a month comprised in the period from the 1st day of April of theassessment year to the date on which the refund is granted:
Provided that no interest shall be payable if the amount of refund is less than ten per cent of the tax as determined under Sub-section (1) of Section 115WE or Sub-section (1) of Section 143 or on regular assessment;
(b) in any other case, such interest shall be calculated at the rate ofone-half per cent for every month or part of a month comprised inthe period or periods from the date or, as the case may be, dates ofpayment of the tax or penalty to the date on which the refund isgranted.
Explanation.-For the purposes of this clause, "date of payment of tax or penalty' means the date on and from which the amount of tax or penalty specified in the notice of demand issued under Section 156 is paid in excess of such demand.
(2) If the proceedings resulting in the refund are delayed for reasons attributable to the assessee, whether wholly or in part, the period of the delay so attributable to him shall be excluded from the period for which interest is payable, and where any question arises as to the period to be excluded, it shall be decided by the Chief Commissioner or Commissioner whose decision thereon shall be final.
(3) Where, as a result of an order under Sub-section (3) of Section 115WE or Section 115WF, or Section 115WG or Sub-section (3) of Section 143 or Section 144 or Section 147 or Section 154 or Section 155 or Section 250 or Section 254 or Section 260 or Section 262 or Section 263 or Section 264 or an order of the Settlement Commission under Sub-section (4) of Section 245D, the amount on which interest was payable under Sub-section (1) has been increased or reduced, as the case may be, the interest shall be increased or reduced accordingly, and in a case where the interest is reduced, the assessing officer shall serve on the assessee a notice of demand in the prescribed form specifying the amount of the excess interest paid and requiring him to pay such amount; and such notice of demand shall be deemed to be a notice under Section 156 and the provisions of this Act shall apply accordingly.
(4) The provisions of this section shall apply in respect of assessments for the assessment year commencing on the 1st day of April, 1989, and subsequent assessment years.
The following proviso shall be inserted to Sub-section (4) of Section 244A by the Finance Act, 2005, with effect from 1-4-2006:
Provided that in respect of assessment of fringe benefits, the provisions of this sub-section shall have effect as if for the figures" 1989", the figures "2006" had been substituted.
15. Section 244A(1) of the Act refers to 'where refund of any amounts becomes due to the assessee', and the words 'any amount' were interpreted by Hon'ble Madras High Court in CIT v. Needle Industries (P) Ltd. , wherein it has been held as under:
...The expression 'amount' in the earlier part of Section 244(1A) of the Income Tax Act, 1961, would refer to not only the tax but also the interest, and the expression 'amount' is a neutral expression and it cannot be limited to the tax paid in pursuance of the order of assessment. The expression 'tax or penalty' found in the later part of Section 244(1A) would not qualify or restrict the scope of the expression 'amount' found in the earlier part to mean only 'tax or penalty'. The function of the later part of Section 244(1 A) of the Act is to find out the excess of the amount which the assessee paid by way of tax or penalty and that is the reason the expression 'tax or penalty' has been employed. However, to determine the amount on which the revenue is liable to pay interest, Section 244(1A) gives emphasis on the amount paid by the assessee in pursuance of the order of assessment and the amount cannot be limited to the amount of tax or penalty, but would encompass the amount of interest paid by the assessee. In the context of Section 244(1 A) of the Act, the expression 'tax' would include interest also and the definition of tax in Section 2(43) meaning 'Income-tax' cannot be applied in the context of Section 244(1 A) of the Act. Consequently, the interest paid in pursuance of the order of assessment has to be regarded as forming part of income-tax or an adjunct to income-tax. The result would be that the assessee is entitled to interest on the interest refunded also....
16. Their Lordships of Hon'ble Apex Court in Sandvik Asia Ltd.'s case (supra), referring to the decision of Hon'ble Madras High Court in Needle Industries (P) Ltd.'s case (supra), and had held that 'the assessee is entitled to interest under Section 214 and/or Section 244 of the Act'; in accordance with the terms and provisions of the said section i.e., interest on interest is eligible to be paid by the revenue authorities for the delay in issue of payments.
17. The Mumbai Tribunal in Grindwell Norton Ltd.'s case (supra) had held as under:
In Sub-section (1) to Section 244A, where refund of any amount becomes due to the assessee, it is stipulated that in addition to the refund the assessee shall be entitled to received on the said refund. Under Clause (a) to Sub-section (1) of Section 244A, the interest shall be payable on the refund of tax deducted at source or advance tax paid by the assessee and under Clause (b) to Sub-section (1) to Section 244A, the interest shall be paid on refund of any tax other than advance tax or TDS. The Explanation appended to Clause (b) to Section 244A clarified the date of payment of tax or penalty. The Supreme Court in the case of S. Sundaram Pillai v. V.R. Pattabiraman had considered the impact of the Explanation on statutory provisions of the Act and held that 'the word itself shows it is merely meant to explain or clarify certain ambiguity which may have arisen in the statutory provisions'. In the instant case the assessee had claimed the interest on excess payment of self-assessment tax under Section 140A. In accordance with the provisions of Clause (b) to Section 244A(1), interest is payable on such payment of tax; The provisions of the statute are to be given its full effect.... Therefore, the assessee was entitled to the interest under Section 244A on refund of tax arising on account of excess self-assessment tax.
18. Before their Lordships of Hon'ble Supreme Court in Sandvik AsiaLtd.'s case (supra), the main issue raised in the appeal was 'whether an assessee is entitled to be compensated by the Income-tax department for the delay in paying to the assessee amounts admittedly due to it'. In the facts of the case before the Hon'ble Supreme Court in Sandvik Asia Ltd.'s case (supra), certain sums were paid by the assessee and after the orders of the appellate authorities refunds became due to the assessee which included the interest accrued from the date when such refund became due till the date of actual payment. The interest was claimed on the interest paid by the assessee as part of the amounts due to the assessee. Referring to the provisions of Section 237 - dealing with refunds, Section 243 - interest on delayed refunds and Section 244 interest on refund where no claim is needed being the relevant provisions applicable to the year under consideration; it was held that 'In view of the expressed provisions of the Act, an assessee is entitled "to compensation" by way of interest for the delay in the payment of amounts lawfully due to the appellant, which was withheld wrongly and contrary to the law by the department for an inordinate law period of 17 years'.
19. In Sandvik Asia Ltd.'s case (supra), reference was made to various judgments of the Hon'ble Supreme Court including Berger Paints India Ltd. v. CIT and several other decisions and after referring to judgments of various High Courts, their Lordships of Apex Court at page 671 of the judgment have categorically held as under:
...In our view, the Act recognizes the principle that a person should only be taxed in accordance with law and hence where excess amounts of tax are collected from an assessee or any amounts are wrongfully withheld from an assessee without authority of law the revenue must compensate the assessee.
At the initial stage of any proceedings under the Act any refund will depend on whether any tax has been paid by an assessee in excess of tax actually payable by him and it is for this reason that Section 237 of the Act is phrased in terms of tax paid in excess of amounts properly chargeable. It is, however, of importance to appreciate that Section 240 of the Act, which provides for refund by the revenue on appeal, etc., deals with all subsequent stages of proceedings and therefore is phrased in terms of 'any amount' becoming due to the assessee....
20. In the facts and circumstances of the present case, the refund becomes due to the assessee pursuant to the order of Commissioner (Appeals) wherein it was held that 'assessee was not to deduct tax at source on the amounts remitted to the recipient outside India. The refund of money paid by the assessee becomes due to it on the passing of the Appellate order in appeal as per the provisions of Section 240 of the Income Tax Act. The assessee is not to make any claim in this regard for the issue of refund as per the provisions of Section 240 of the Act, which provides that refund is automatically due to the assessee after the order is passed in appeal or any other proceedings under the Act. Section 244A(1) of the Act further provides that in addition to refund of any amount becoming due to the assessee under the Act, the assessee is also entitled to receive interest on such refunds which have become due to the assessee under the Act. The refund in the present case was determined on account of the order giving effect to the appeal order passed by the Commissioner (Appeals).
21. Clause (a) to Section 244A(1) covers the instances of payment of sums of money by way of advance tax or TDS. Clause (b) to Section 244A(1) of the Act covers all other cases wherein refund has become due to the assessee. The phrase used in Clause (b) to Section 244A(1) of the Act is 'in any other case'. The Explanation to Clause (b) to Section 244A(1) further provides that 'date of payment of tax or penalty' means the date on which the amount of tax or penalty specified in the Notice of Demand issued under Section 156 is paid. The Explanation attached to the main section does not in any way obliterate the meaning of the section. A reference was made to the decision of Hon'ble Supreme Court in S. Sundaram Pillai v. V.R. Pattabiraman in Grindwell Norton Ltd.'s case (supra), which in-turn had held that "the word 'itself shows that it is". Applying the principles of Hon'ble Supreme Court in S. Sundaram Pillai's case (supra) it was held in Grindwell Norton Ltd.'s case (supra), that 'where the assessee had claimed interest on excess payment of self-assessment tax under Section 140A of the Income Tax Act, the interest on such refunds due to the assessee was payable'.
22. In the facts of the present case, the payment of tax is made pursuant to order under Section 195(2) of the Act passed by the assessing officer. Section 156 of the Act talks of service of a notice of demand in the prescribed form, where any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under this Act. The order in the present case has been passed under Section 195(2) of the Act for which notice of demand is to be issued under Section 156 of the Act, which very categorically provides that where any tax, interest, penalty or any other sum is payable, because of 'any order passed under the Act'. The order under Section 195(2) of the Act has been passed under the provisions of the Act and any notice of Demand for the said amount due pursuant to order passed under Section 195(2) is bound to be issued under Section 156 of the Income Tax Act.
23. The provisions of Clause (b) of Section 244A(1) of the Act very categorically provides that interest on any refund arising because of payment of tax 'in any other case', which shall include the payment made by the assessee pursuant to order under Section 195(2) of the Income Tax Act, by which the assessing officer requisitioned the assessee to deduct the tax and deposit the same in treasury before remitting the amounts due to the recipients outside India. Accordingly, the assessee is entitled to receive interest under Section 244A(1)(b) of the Income Tax Act on amounts deposited pursuant to order passed under Section 195(2) of the Act, which in-turn have become due to the assessee because of the order passed in appeal against the said order under Section 195(2) of the Income Tax Act.
24. Reference was made to the Circulars issued by the Board wherein approval was sought for grant of refund of excess deduction or erroneous deduction of tax at source under Section 195 of the Act. The cases under consideration related to circumstances where:
(i) after the deposit of tax deducted at source under Section 195,
(a) the contract is cancelled and no remittance is required to bemade to the foreign collaborator;
(b) the remittance is duly made to the foreign collaborator, but the contract is cancelled and the foreign collaborator returns the remitted amount to the person responsible for deducting tax atsource;
(c) the tax deducted at source is found to be in excess of tax deductible for any other reason;
(ii) the tax is deducted at source under Section 195 and paid in one assessment year and remittance to the foreign collaborator is made and/or returned to the Indian company following cancellation of the contract in another assessment year.
25. The Board by way of Circular No. 769, dated 6-8-1998 and Circular No. 790, dated 20-4-2000 provided that the assessee shall be entitled to refund of such payments made under Section 195 of the Act, but, the amount paid into the Government account in such cases, is no longer 'tax'. In view of this, no interest under Section 244A is admissible on refunds to be granted in accordance with this circular or earlier circular.
26. The circumstances mentioned in the circular are different from the facts and circumstances of the case before us. In the circumstances referred to in the Circular, the tax was deposited by the persons on their own and voluntarily, without any demand being made by the Assessing Officer or any other authority under the Act. But, in the facts of the present case, the amount was paid pursuant to an order passed by Assessing Officer under the provisions of Section 195(2) of the Income Tax Act, against which the assessee filed an appeal before the Commissioner (Appeals). In the order giving appeal effect to the order of Commissioner (Appeals), refund became due to the assessee which in fact arises because of the provisions of Section 240 of the Income Tax Act. The provisions of the Act prevail over the instructions issued by the Board by way of CBDT circulars, which in any case are not applicable to the facts of the present case. Their Lordships of Hon'ble Supreme court in Sandvik Asia Ltd.'s case (supra) had held that where excess amount of tax is collected from assessee, the revenue must compensate assessee and the compensation in this case is by way of interest under Section 244A of the Act for the period when the amount was with helearned Accordingly, we direct the assessing officer to allow the interest under Section 244A(1)(b) of the Income Tax Act on the amount due to the assessee pursuant to the order passed giving effect to Commissioner (Appeals)'s order appeal. Thus, the ground Nos. 1,2 and 3 raised by the assessee are allowed.
27. In view of our decision to ground Nos. 1, 2 and 3, the alternative ground of appeal raised by the assessee by way of ground No. 4 is dismissed.
28. In the result, the appeal filed by the assessee is partly allowed.