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2016 (8) TMI 223 - ITAT KOLKATA

2016 (8) TMI 223 - ITAT KOLKATA - [2016] 50 ITR (Trib) 515 - TDS u/s 194G - Disallowance under section 40(a)(ia) - payment of disbursed prize monies - whether the assessee was liable to deduct tax at source from the amount in question disbursed as prize monies on lottery tickets under section 194G - revision u/s 263 - Held that:- As rightly contended by the ld. counsel for the assessee, the amount in question can be considered as in the nature of commission for the purpose of section 40(a)(ia) r .....

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to act in their capacity and once the lottery tickets were sold to them, such lottery tickets stood transferred to the stockists. The stockists were mainly concerned with their shares on sale of lottery tickets and they were not entitled to receive any commission on sale of lottery tickets from the assessee. They were free to sale the lottery tickets to any sub-stockists or retailers at the self determined prices as per their free will and the contract between the assessee and the stockists was .....

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s Pvt. Limited (supra), we agree with the contention of the ld. counsel for the assessee that the amount in question was not in the nature of commission as defined in clause (i) of Explanation to Section 194H so as to attract the provision of section 40(a)(ia) read with section 194G. In our opinion, the amount in question representing the disbursal of prize monies on lottery tickets thus was not liable to be disallowed under section 40(a)(ia) in the facts and circumstances of the case and there .....

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against the order of the ld. Principal Commissioner of Income Tax-9, Kolkata dated 30.03.2015 passed under section 263, whereby he revised the order passed by the Assessing Officer under section 143(3) treating the same erroneous and prejudicial to the interest of the Revenue for the failure to make the disallowance under section 40(a)(ia) on account of payment of disbursed prize monies. 2. At the outset, it is noted that there is a delay of 75 days on the part of the assessee in filing this ap .....

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the part of the assessee in filing its appeal before the Tribunal and proceed to dispose of the same on merit. 3. The relevant facts of the case giving rise to this appeal are as follows:- The assessee is a partnership firm, which carried on the business of buying, selling, trading or otherwise dealing in all kinds of lottery tickets during the period from 01.06.2009 to 31.05.2011. A survey under section 133A was carried out at the business premises of the assessee on 27.01.2010, during the cour .....

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survey, the evidences collected during the course of assessment proceedings and the statement recorded under section 131 of one Shri Shantilaln Vira, partner of the assessee-firm, the Assessing Officer arrived at a conclusion that the business of conducting of lotteries was virtually outsourced by the Royal Government of Bhutan to the Private Group to which the assessee-firm belonged on royalty basis. He held that the entire chain of income, from that accruing to the Directorate of Lotteries, Bh .....

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ion raised by the assessee that the Bernoullis Theorem is not applicable in case of the lottery business was not found to be sustainable by the Assessing Officer and overruling the same, he proceeded to reject the books of account of the assessee under section 145(3) of the Act and estimated the income of the assessee by applying the said theorem. Accordingly, the gross profit from the entire business of Bhutan Lotteries was estimated by the Assessing Officer at ₹ 400 crores as under:- &qu .....

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.e. (70% of ₹ 3800 crores) which is ₹ 2660 crores. Facts and figures of M/s. Future Distributors, M.A.V. Associates (alias Vira Enterprise). Angelica Distributor, Teesta Distributor (Marketing companies i.e. main sellers who actually collect the money from the public through dealers and stockists) Lottery tickets actually sold 62% of 3800= 2356 tickets, Sales realization @ 86.5 prisa average per ticket= ₹ 2050 crores (sale prices shown to vary from 81 paise to 94 paise per tick .....

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ores and the actual selling expenses spent by the marketing entities amounting to ₹ 20 crores were deducted by the Assessing Officer and the net profit from the entire business of Bhutan Lotteries was worked out by him at ₹ 270 crores. The net profit of ₹ 270 crores so worked out was divided by the Assessing Officer between the assessee-firm and the other distributors in the ratio of their sales and accordingly, the net profit of the assessee from the business of dealing in lot .....

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t completed under section 143(3)/144 vide an order dated 22.03.2013. 5. The records of the assessment made under section 143(3)/144 in the case of the assessee thereafter came to be examined by the ld. Pr. CIT and on such examination, he found that the assessee during the year under consideration had made an aggregate payment of ₹ 551.30 crores to the various stockists by way of prize winning money attributable to the unsold lottery tickets. He also found that no tax at source was deducted .....

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t completed under section 143(3) in the case of the assessee, the ld. Pr. CIT was of the view that the assessment order passed by the Assessing Officer under section 143(3) was erroneous as well as prejudicial to the interest of the Revenue. He, therefore, issued a notice under section 263 on 18.03.2015 followed by a corrigendum notice dated 23.03.2015 requiring the assessee to explain as to why the order passed by the Assessing Officer under section 143(3) should not be revised by exercising th .....

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ed in our case for the assessment year 2010-11, as it appears to you that the Assessing Officer (AO) allegedly omitted to consider certain issues viz. alleged payment of commission in the sum of ₹ 551,30,41,569/- to retailers on account of 'prize winning tickets', which according to you came within the ambit of section 194G of the said Act; and that since such payment was made without deducting any tax at source, the same, according to you, was not allowable as an expenditure in vi .....

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evenue within the meaning of section 263 of the said Act. 3. At the very outset, we deny and dispute each and every allegation made by you in your said purported Notice dated 18th March, 2015; and we say and submit that the said impugned Assessment Order dated 22nd March, 2013 passed by the learned AO under section 143(3}/144 of the said Act, although erroneous in law in respect of various issues already raised by us in the Appeal filed by us and pending before the learned CIT(A)- XXXIII, Kolkat .....

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se of the assessment proceedings in our case for the assessment year 2010-11. 6. We therefore say and submit that the conditions precedent for invoking the powers and jurisdiction under section 263 of the said Act are not satisfied in the instant case; and therefore the impugned proceedings sought to be initiated by you through your said impugned notice dated 18th March, 2015 is wholly without jurisdiction, illegal, invalid and void ab-initio. 7. Without prejudice to the above, we deal hereunder .....

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l as the State of West Bengal since June, 2009; ii. The assessee firm was appointed by Pema Lhaden Enterprise as 'Main Seller' of Bhutan Paper Lotteries, in terms of an agreement executed on 1st June 2009, a copy whereof is already on the assessment records of the assessee firm. iii. In terms of the said Agreement dated 1st June, 2009, entered into by the assessee firm with PLE, the Bhutan Paper Lottery Tickets were, at all material time, being purchased by it in bulk from PLE on 'Ac .....

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ither directly or through their agents. It may be noted that the Assessee Firm has or had no connection whatsoever either with the Sub-Stockists and/or with the Retailers and/or with their respective Agents; vi. The Assessee Firm, on the basis of requirements placed by its Stockists, used to supply the specified required number of Paper Lottery Tickets to each of them from time to time on FOR basis, with an option to intimate to the Assessee Firm, full details of unsold tickets. In other words, .....

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each of the Stockists to the erstwhile "Main Seller", MAV Associates were transferred to the Assessee Firm on 1st June, 2009, when the Assessee Firm was appointed by PLE to be the "Main Seller" in place of the erstwhile MAV Associates; ix. The Bhutan Paper Lotteries, of different denominations with different types, were being conducted on weekly basis. The draws, in some name of them were being conducted by the Royal Government of Bhutan (RGB), on daily basis, at Bhutan; and .....

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e Royal Government of Bhutan, at Bhutan; xi. PLE used to draw weekly Bills/ Invoices upon the Assessee Firm herein, only in respect of actually sold Paper Lottery Tickets; and the Assessee Firm, in its turn, also drew weekly bills/invoices upon each of the Stockists, again only in respect of actually sold Paper Lottery Tickets; xii. Since prizes declared on the Paper Lottery Tickets, not exceeding ₹ 5,000/-, were required to be disbursed to the general public directly by the Sub-Stockists/ .....

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s were also required to return the prize winning tickets against which they had disbursed prizes of the value not exceeding ₹ 5,000/- per ticket; and such prize winning tickets, in its turn, were also handed over by it to PLE, while seeking reimbursements therefor, against the purchase consideration of lottery tickets payable by it to PLE; xv. The Stockists were also required to return to the Assessee Firm, all unsold Paper Lottery Tickets, which the Assessee Firm, in its turn, used to ret .....

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ckets and/or wrong claim of prizes, based on wrong reading of prize winning number printed on the tickets. At the time, when the Bills initially raised by the Assessee Firm upon the Stockists, were sought to be settled, it was not possible at all times to check all such tampering and/or wrong claims received by the Assessee Firm from the Stockists. In such cases, as and when such tampering and/or wrong claims made by the Stockists were detected by the Assessee Firm, which was required to be done .....

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which is already on the assessment records, is annexed hereto for ready reference and marked with the letter 'A'. 10. The break-up details of purchases of paper lottery tickets made by the assessee firm from PLE, during the said financial year ending 31st March, 2010, draw date wise, are also given in the enclosed statement, a copy whereof, which is already on the assessment records, is annexed hereto for ready reference and marked with the letter 'B': 11. In any lottery draw, t .....

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as per Scheme framed by the Royal Government of Bhutan; and that the expression PWT-1/PWT-2"was ued to describe those "super and special lottery tickets", which were separately printed and on which prize amounts were different, as per Scheme framed by the Royal Government of Bhutan, as compared to the PWT Paper Lottery Tickets. 13. It has also been confirmed by Shri Martin in reply to Question No.17 put to him, while recording his statement on 23'd November, 2013, that each b .....

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r/gold/special tickets' also participate in the draw, through the independent numbers of 100/1000 tickets. The number printed on these tickets is only the 'range of the entire bundle of 100/1000 lottery tickets', as the case may be. If an individual buyer buys the whole bundle, he automatically gets the 'super/gold/special tickets' already contained in the bundle. When a retailer buys the bundles, he may sell the entire bundle to anyone person; or in the alternative, he may s .....

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pay the prize monies directly to any person who possesses the prize winning lottery ticket. The agents/sub-agents/retailers concerned make payments of prize monies (always not exceeding ₹ 5,ooO/- per ticket), both by way of PWT and also PWT-1/PWT-2 (super/gold/special) tickets, on production of the prize winning ticket before either of them; and the Assessee Firm makes reimbursements on behalf of PLE/RGB by way of adjustments of the accounts, as and when submitted by the stockists to it. T .....

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sub-agents/retailers for and on behalf of RGB, and not by the Assessee Firm, who was merely a Distributor. In any event the responsibility to deduct tax at source under section 194B of the said Act, if at all applicable, was upon RGB; and not on the distributor/stockist/agent/sub-agent/retailer etc., as the case may be, who only claimed reimbursements. This is for the reason that the RGB is the 'person responsible' for making the payment as provided for under the relevant provision of th .....

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ckets (Rs.1,393.22 crores) in bulk from PLE. 18. The prize monies paid on the winning tickets is the expenditure of RGB, and not of a distributors/Stockists/agents/sub-agents/retailers etc. Further, the Assessee Firm did not pay and/or distribute any prizes on any prize winning tickets to any persons whatsoever. In so far as, the prize money of the value not exceeding ₹ 5,000/- is concerned, the same was paid and/or distributed directly to the prize winners by the agents/sub-agents/retaile .....

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s/sub-agents/retailers by way of prizes won on 'super/gold/special tickets' for and on behalf of RGB, has not been debited by the Assessee Firm, in its books of accounts, as an expenditure. The prize monies paid on the winning tickets is the expenditure of RGB, and not of the distributors/stockists/agents/sub-agents/retailers etc. The said amount has been claimed by the stockists from the Assessee Firm, by way of adjustments, against the dues payable by them to the Assessee Firm, for pur .....

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The said limit of ₹ 5,000/- is now increased to ₹ 10,000/- by the Finance Act, 2010 w.e.f. 01.07.2010. 22. In any event, there is no liability to deduct tax at source when the person making the payment seeks reimbursement from the Principal (PLE/RGB, in the instant case); and the prize monies having been reimbursed, the same does not enter the Profit & loss Account of the person seeking reimbursement, as it is not his/their expenditure. Reliance in this connection is placed on t .....

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uneration or prize (by whatever named called) on lottery tickets, to any person who is the stockist, distributor or seller of the lottery tickets. The word 'prize' appearing in section 194G must be understoodejusdem generis of the nature of preceding words viz. 'commission' or 'remuneration'. In other words, section 194G would apply only when prizes by way of commission or remuneration, is paid to any stockist, distributor or seller of the lottery tickets. It does not, an .....

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ommission within the meaning of section 194G of the said Act, as arbitrarily and wrongly alleged by you, or otherwise or at all. 25. We say and submit that the said sum of ₹ 551,30,41,569/- is part of ₹ 1326,81,63,490/- (kindly see column 6 of the Statement annexed hereto and marked with the letter '8') being the value of prizes won on the sold tickets, which amount was reimbursed by us to the stockists, who in turn made reimbursements to their agents/sub-agents/retailers etc .....

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for the financial year ending 31st March, 2010 corresponding to the assessment year 2010-11 is debited only with the purchase value of Lottery Tickets in the said sum of ₹ 1393,22,38,446/-, and not with any commission and/or any prize payable on the lottery tickets, we say and submit that there was no requirement of any deduction of tax at source either under section 194G and/or section 194G of the said Act; and therefore there was no question of applying section 40(a)(ia) of the said Act .....

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e learned Commissioner of Income Tax (Appeals)-XXXIII, Kolkata in Appeal No.45/CIT(A)-XXXIII, JCIT, R-53 of 2013-14 filed by us against the said impugned Assessment Order dated 22nd March, 2013 passed in our case under section 143(3) /144 of the said Act in respect of the assessment year 2010-11. 29. The said issue in question had already been raised by the AO in his Remand Report dated 12th March, 2014 filed by him before the learned CIT(A), in the course of hearing of the said Appeal; and our .....

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, in the facts and circumstances of the instant case, is wholly without jurisdiction, illegal, invalid and void ab-initio" 7. In addition to the above submission, the following documents were also filed by the assessee before the ld Pr. CIT in response to the Corrigendum issued by the ld. Pr. CIT dated 23.03.2015:- "i. A copy of the Ledger ale of Pema Lhaden Enterprise (PLE) appearing in our Books of Accounts for the financial year ending 31st March, 2010 corresponding to the assessmen .....

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f the Ledger accounts of ten of our Stockists (by way of sample) to whom lottery tickets of both Bhutan and West Bengal were sold by us during the said financial year, for onward sale to general public through agents/sub-agents/retailers, etc. v. A reconciliation statement of amounts payable/receivable in respect of paper lottery tickets purchased/sold during the financial year ending 31st March, 2010, as also of prizes paid on PWT & PWT-1 lottery tickets during the said period. vi. Photocop .....

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er:- "3. The arguments put forward by the Id A.R.s have carefully been examined in the light of the documents furnished by them and the evidences collected by the A.O. in the course of the enquiry during the ongoing remand proceeding before the Ld. CIT(A)-7, Kolkata (erstwhile CIT(A)-XXXIII, Kolkata). It is seen that Shri Santiago Martin acquired the right to market the Bhutan lottery tickets through his company M/s Martin Lottery Agencies Ltd. which was subsequently renamed as M/s. Future .....

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utan Lotteries. The business of selling Bhutan Lottery tickets changed' hands every two years without any valid reason. It was found that the changing over of hands would never be with the reference to the F.Y. period and it would always be after two or three months into a new financial year.' This made the reconciliation 'of the balances of the different entities (floated by Shri Martin) by any tax officer a virtual impossibility and thereby gave the assessee a free hand to claim jo .....

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& Company, the proprietorship concern of Shri S. Martin. In the course of the assessment proceeding, no satisfactory explanation could be adduced by Sri Martin regarding the aforesaid frequent change of entities and non-closure of their multiple bank accounts. As a result of a thorough probe by the assessing officer about the modus operandi of the entire chain of Bhutan lottery business starting from Bhutan to the final lottery buying public in West Bengal, it stood established that Shri S. .....

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l Govt of Bhutan (RGB) as the sole purchaser (again in the nature of an intermediary) with the primary objective of avoidance of the payment of service tax introduced by the Finance Bill, 2008. The same has been admitted by Shri S. Martin in his statement recorded by the A.O. It has come to the notice that Ms. Pema Lhaden claimed to have paid huge amount of commission to her stockists based in India and paid TDS @ 3% thereon as shown in her returns filed with the Bhutan income-tax department. It .....

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artin. The press reports also highlighted at the relevant point of time the details of the Bhutan lottery scam. It is to be noted that on being informed by the Govt. of India about the flagrant violations of the Lotteries Regulation Act, 1998, the Royal Govt. of Bhutan was compelled to shut down its Directorate of Lotteries in August, 2011. The CBI charge-sheet matter has been confessed by Shri Martin. It is established beyond doubt that the web of entities in various tax jurisdictions' was .....

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#8377; 23 crores as evidenced by the weekly payments made to it by FGSIPL. It has been contended by the Id. A.Rs that the Bhutan lottery tickets used to be received by the assessee from the sole purchaser, i.e. PLE and subsequently transmitted to its stockists on "Actual Sold Basis" only. In this regard a copy of the agreement dated 15-05-2008 between the Royal Govt. of Bhutan and M/s Martin Lottery Agencies Ltd. (now M/s Future Gaming Solutions India Pvt. Ltd.) has been examined: In t .....

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tin, various State Govts., i.e. Tamil Nadu, Andhra Pradesh, Arunachal Pradesh, Maharashtra, Punjab and West Bengal used to sell tickets to him on "All Sold Basis" only and that too for a much lesser discount than allowed by the RGB. It is, therefore, established that where the lotteries are conducted by the Govts. (subjected to a high degree of regulation and transparency) the "All Sold Basis" is the usual norm. Shri S. Martin in his deposition dated 30-12-2013 had contended .....

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ent been genuine, then the changing of the terms from "All Sold Basis" to "Actual Sold Basis" could not take place without such a precondition of reporting the unsold tickets before the happening of the actual draw. The absence of such a clause in the revised agreement confirms that the addendum was merely a facade to' hoodwink the Service-tax department, while in reality the transactions were carried out on "All Sold Basis" as stipulated in the original agreeme .....

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have abdicated its sovereign and statutory responsibility. As per the Lotteries Regulation Act, 1998, the proceeds for the sale of lottery tickets can be credited only in the public account of the state. The RGB had basically tailed to comply with the same. The Directorate of Lotteries, Bhutan without obtaining any FEMA permission had opened a current account with the IOB, Cannaught Place Branch, New Delhi like a private citizen and allowed the benami operation of the same by the Martin Group. T .....

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ser, the evidences corroborate that the transportation charges for the lottery tickets were never paid by the RGB. On the contrary, the freight charges were borne by the different marketing entities controlled by Shri Martin. The above facts clinchingly established that Shri S. Martin and his business concerns were the defacto conductors of the Bhutan lotteries. Therefore, the arguments of the Id. A.Rs that the lottery operation was exclusively controlled by the RGB and that the lottery tickets .....

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tickets. Hence the figures indicated against the said abbreviation implied payments relating to the tickets which won the prizes. It has been the contention of the Id. A.Rs that the prizes not exceeding ₹ 5000/- declared on the paper lottery tickets are required to be disbursed to the general public directly by the stockists/sub-stockists/retailers/agents appointed by assessee and the stockists and that the prize money exceeding ₹ 5000/- was to be paid by the RGB only. It has been c .....

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and special lottery tickets" which are separately printed and which carried different prize amounts as compared to the ordinary PWT lottery tickets. In the written submission the assessee has sought to explain the composition of the super, gold and special lottery tickets in the bundles of 100/ 1000 ordinary tickets which participate in the draw. The "super, gold and special lottery tickets" along with the other tickets of the bundles are stated to be participating in the lottery .....

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ickets in large quantity such as bundles of 100/1000 tickets. The Id A.R.s have emphasized that the assessee never pays the prize money directly to any person whatsoever who possesses the prize winning tickets. It was averred that the prize money below ₹ 5000/- was paid and/or distributed directly to the prize winners by agents/sub-agents/retailers for and on behalf the RGB and not by the assessee firm which acts as a mere distributor. It is their submission that the stockists who make the .....

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ng the payment. The above contentions of the Id. A.R.s regarding the payments on the prize winning tickets and the consequent disbursements taking place among the PLE, the assessee, stockists, sub-stockists, agents etc. have carefully been examined vis-a-vis the findings of the A.O. during the assessment proceeding and subsequently on the basis of the documents obtained and the statements of the major partner of the assessee. The ledger account of the RGB (Directorate of Lotteries) as appearing .....

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om the RGB, the same being only a book entry. In the said account there was no mention of PWT and PWT-l. The agreement dated 15-05-2008 does not state that the RGB will be declaring two different types of prizes, i.e. one for the winning ticket holder and the other for the seller of the ticket. The assessee firm in reply to the AO.'s show cause notice has submitted that for the sake of easy accounting the assessee had termed the super ticket prize and special ticket) prize as PWT-1 and that .....

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sferrable like the winners of PWT. In that deposition Shri Martin also indicated that PWT-I constituted a part of the total winning draw of the lottery scheme. In a subsequent letter dated24-02-2014 Shri Martin offered a completely different version, wherein he clarified that PWT and PWT-l (super, special and bulk) were supposed to be meant for the purchaser of the ticket bearing the lucky draw number and that no amount attributable to PWT and PWT-1 was payable to any seller of the tickets. This .....

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as to why the schemes had three different prizes for the same prize winning tickets, if the same were all meant to be given to the ultimate holder of the prize winning ticket. It has been found by the A.O. that weekly payment statement summary of the 125 stockists contained only the details of the super and special tickets (PWT-I) with no mention of PWT at all therein. This fact vindicated that PWT-1 were not meant for the ultimate prize winner. In the course of the enquiry conducted by the A,O .....

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as well as the persons who can claim the same. At times they stated that the super and special tickets are part of the saleable lottery ticket booklets and at other times they claim the same to be a separate booklet by itself. This change in versions was prompted when the A.O. raised the question of deduction of tax at source in terms of the provisions ofS.194G of the I.T. Act. In order to ascertain the correct nature of PWT-1 the A.O. also conducted enquiries with the Director of Lotteries, Wes .....

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any lottery playing public. It has been found (on the basis of the entries recorded in computerised ledger a/cs of the prize winning tickets as extracted from the impounded hard disk FDA-1 and also on the basis of the details subsequently furnished by the assessee) that during the relevant accounting year the total payments made by the assessee against PWT-1 stood at ₹ 551,30,41,569/-. The said amount was also found to be a part of the total purchase amount of ₹ 1393,22,38,446/- deb .....

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ore was a part of a sum of ₹ 1326.82 crore being the value of the prizes won on the sold tickets which amount was reportedly reimbursed by the assessee to the stockists. They also submitted that the said sum of ₹ 1326.82 crore was deducted by the assessee from the net purchase value in the aggregate sum of ₹ 1393.22 crore 'payable by the assessee to M/s Pema Lhaden Enterprise for purchase of the Bhutan paper lottery tickets. Another argument has been advanced by the Id. A.R .....

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e stockists by way of incentive constituted income in their hands and hence the same warranted deduction of tax at source by the assessee u/s 194G. Further, the sum of ₹ 551.30 crore stands debited to the P&L a/c by virtue of being a part of the purchase figure reflected in the P&L a/c and was thus in the nature of an expenditure claimed by the assessee. For non-deduction of tax at source this expenditure ought to have been disallowed u/s 40(a)(ia) of the LT. Act. Since the A.O. om .....

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sing Officer to frame the assessment de novo by taking cognizance of the issues raised by him after conducting necessary enquiries in that regard. Aggrieved by the order of the ld. Pr. CIT passed under section 263, the assessee has preferred this appeal before the Tribunal. 10. The ld. counsel for the assessee, at the outset, explained the entire modus operandi of the business through which the lottery tickets issued by the Royal Government of Bhutan were distributed. He submitted that the Royal .....

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ncern of Ms. Pema Lhaden of Phuentsholing, appointed the assessee-firm as the main seller of Bhutan Paper Lotteries in the State of West Bengal in terms of agreement dated 01.06.2009. The assessee-firm appointed more than 100 stockists in the area of South Bengal for the sale of paper lottery tickets and the said stockists in turn engaged various persons as sub-stockists, who again appointed retailers to sell the lottery tickets. The ld. counsel for the assessee submitted that all these arrangem .....

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to raise weekly bills/invoices on the assessee in respect of actual sold paper lottery tickets while the assessee in its turn used to raise weekly bills/invoices on each of the stockists only in respect of actual sold paper lottery tickets. 11. After elaborating the modus operandi followed in the distribution of lottery tickets of Royal Government of Bhutan, the ld. counsel for the assessee submitted that the prizes declared on paper lottery tickets exceeding ₹ 5,000/- were to be paid dir .....

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es by way of adjustment against the respective weekly bills drawn by the assessee-firm on them. He submitted that the assessee-firm in turn claimed reimbursement of the disbursed prize monies from PLE by way of adjustment against the amount due to the said entity towards purchase of lottery tickets. 12. The ld. counsel for the assessee also explained that there was another scheme framed by the Royal Government of Bhutan called as Prize Winning Tickets(1) (in short PWT-1). He submitted that the t .....

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rs. He submitted that when a retailer bought the bundles, he could sell the entire bundle to any one person, or alternatively he could sell one or more tickets in loose form to one or more persons. Where tickets were sold loose, the retailer himself was entitled to retain the 'super/gold/special tickets'. He contended that the prize money under this scheme, i.e. PWT-1 also was disbursed in the same manner as the prize money was distributed on ordinary/normal paper lottery tickets (PWT), .....

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raise various contention in support of the assessee's case that there was no obligation to deduct tax at source from the payment of prize monies as per the provisions of section 194G and the order of the Assessing Officer not making disallowance under section 40(a)(ia) on account of prize monies was neither erroneous nor prejudicial to the interest of the Revenue calling for revision under section 263 by the ld. CIT. Firstly he contended that the relationship between the assessee-firm and t .....

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estricted to income of the payee in the nature of commission on the sale of lottery tickets, which has been claimed by the payer as expenditure in its Profit & Loss Account. He submitted the term 'commission or brokerage' as defined in Explanation (i) to section 194H includes payments received or receivable by a person acting on behalf of the another person for services of specified nature rendered by the former to the latter. He contended that commission or brokerage for the purpose .....

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principle to principle basis and therefore, the amount of prize money could not be treated as commission on sale of lottery tickets paid by the assessee to the stockists arising on account of principal-agent relationship so as to attract the provisions of section 194G as well as the consequential disallowance under section 40(a)(ia). In support of this contention, he relied on the decision of the Hon'ble Sikkim High Court in the case of Future Gaming and Hotel Services Pvt. Limited -vs.- Uni .....

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of section 194G are applicable only in cases, where the impugned payments constitute income by way of commission, remuneration or prize of the payee. He contended that where such payments do not constitute income of the said nature in the hands of the payee, the payer is not required to deduct tax at source on such payment under section 194G of the Act. He reiterated that the amount in question on account of prize money was paid by the assessee to the stockists as reimbursement on behalf of the .....

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following judicial pronouncements, wherein it was held that TDS provision is not applicable in the case of reimbursement of expenses:- (i) CIT -vs. - Bovis Lend Lease (India)(P.) Limited [208 Taxman 168 (Ker.)] ; (ii) CIT -vs. - Hardarshan Singh (2013) 350 ITR 427 (Del .); (iii) CIT -vs. - Gujarat Narmada Val ley Fertilizers Co. Ltd. (2014) 361 ITR 192 (Guj .); (iv) Dolphin Drilling Limited -vs. - ACIT (2009) 121 TTJ 433 (Del .); (v) CIT -vs. - Dunlop Rubber Co. Limited (1983) 142 ITR 493 (Kol . .....

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reated as 'the person responsible for paying' the prize monies on super/special tickets (PWT-1) in terms of section 204 read with sections 194B and 194G of the Act as the person responsible for paying prize monies exceeding ₹ 5,000/- was the Royal Government of Bhutan, while the person responsible for paying prize monies upto ₹ 5,000/- were the retailers/sellers, who had ultimately sold the tickets to the general public. He submitted that even the prize money upto ₹ 5,0 .....

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16. The ld. counsel for the assessee further contended that the amount in question was not in the nature of any commission or remuneration paid to the stockists by the assessee, but the same represented reimbursement of prizes from the winning lottery tickets, which were paid by the retailers to the general public. He submitted that such prizes exceeding ₹ 5,000/- were directly paid by the Royal Government of Bhutan while the prize money upto ₹ 5,000/- was paid by the retailers/selle .....

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as held by the ld. CIT. He invited our attention to the provisions of section 194B and submitted that the person responsible for paying to any person, any income by way of winning from any lottery, etc. is liable to deduct tax at the time of payment thereof only when the amount of such income exceeded ₹ 5,000/- as applicable in the year under consideration. He contended that since the amount in question was paid/reimbursed on account of prize money by way of winning from lottery paid to t .....

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of lottery tickets was recovered from the wholesaler by way of adjustment against the amount due to them on account of purchase of lottery tickets. He submitted that the ld. CIT in his impugned order passed under section 263 treated the said amount as in the nature of purchase of lottery tickets on the basis of the relevant accounting entries passed by the assessee while adjusting the amount in question against purchases. He contended that going by this treatment given by the ld. CIT to the amou .....

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om the amount in question representing payment/reimbursement of prize money on lottery tickets, no disallowance under section 40(a)(ia) for failure to deduct tax at source was liable to be made by the Assessing Officer in the assessment completed under section 143(3)/144, wherein the books of account of the assessee were rejected by the Assessing Officer and the income from business was determined by him on estimated basis. He contended that when the income of the assessee was determined on esti .....

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was estimated by the Assessing Officer, he could not make any disallowance on the basis of same books of account by invoking the provision of section 40(a)(ia). It was held by the Tribunal that the estimation made by the Assessing Officer of net profit will take care of every addition related to the business income or business receipts and no further disallowance can be made. The ld. counsel for the assessee submitted that the decision rendered by the Tribunal in the case of Arjun Bhowmick (sup .....

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roneous nor prejudicial to the interest of the revenue so as to justify the interference by the ld. Pr. CIT under section 263. He, therefore, urged that the impugned order passed by the ld. CIT under section 263 may be set aside and that of the Assessing Officer passed under section 143(3)/144 be restored. 20. The ld. D.R., on the other hand, strongly relied on the impugned order of the ld. CIT passed under section 263 in support of the revenue's case. He also referred to section 2(24)(ix) a .....

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the sale as rightly held by the ld. Pr. CIT. He contended that the assessee, therefore, was liable to deduct tax at source from the said amount as per section 194G and the failure of the assessee to do so warranted a disallowance under section 40(a)(ia). He contended that the assessment order passed by the Assessing Officer under section 143(3)/144 without making the said disallowance, therefore, was erroneous as well as prejudicial to the interest of the revenue and the ld. Pr. CIT was fully j .....

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r/front entities created to distance actual profits from the lottery business and thereby indulged in concealment of income on the basis of adverse findings of survey, enquiries made independently, statements of the concerned persons recorded under section 131 etc. and the assessee has made a detailed submission at the time of assessment proceedings before the Assessing Officer as well as during the course of proceedings under section 263 before the ld. CIT and has also filed a written submissio .....

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ve, whether the order passed by the Assessing Officer under section 143(3) without making disallowance under section 40(a)(ia) on account of assessee's failure to deduct tax at source under section 194G could be said to be erroneous as well as prejudicial to the interest of the Revenue calling for revision under section 263 by the ld. CIT. In support of the assessee's case on this issue, the ld. counsel for the assessee has raised various contentions at the time of hearing before us. One .....

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(ia) [any interest, commission or brokerage, [rent, royalty,] fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work)], on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction, [has not been paid on or before the due date specified in sub-section (1) of section 1 .....

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I-B on any such sum but is not deemed to be an assessee in default under the first proviso to sub-section (1) of section 201, then, for the purpose of this sub-clause, it shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee referred to in the said proviso."] "Section 194G. Any person who is responsible for paying, on or after the 1st day of October, 1991 to any person, who is or has been stocking .....

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ses of this section, where any income is credited to any account, whether called "Suspense Account" or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly."] 22. A combined reading of the provisions of section 40(a)(ia) and 194G (emphasis supplied in bold letters) makes it abundantly clear that disallowanc .....

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on 194H. The said term is defined in Clause (i) of Explanation to Section 194H as under:- "The term "commission or brokerage" for the purpose of section 40(a)(ia) thus is defined to include any payment received or receivable, directly or indirectly, by a person acting on behalf of another person for services rendered or for any services in the course of buying or selling of goods". (emphasis supplied in bold letters) 23. As rightly contended by the ld. counsel for the assesse .....

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ble for paying to any person, who is or has been stocking, distributing, purchasing or selling lottery tickets, such income by way of remuneration or prize fails to deduct tax at source, the provision of section 40(a)(ia) cannot be invoked to make a disallowance on account of such remuneration or prize and the said provision would get attracted only when the amount is in the nature of commission as defined in Clause (i) of Explanation to Section 194H. As already noted, the term 'commission&# .....

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the services rendered is in the nature of commission. In this regard, the ld. counsel for the assessee has relied on the decision of the Hon'ble High Court of Sikkim in the case of M/s. Future Gaming & Hotel Services Pvt. Limited v. Union of India rendered on 24.01.2015 in W.P.(C) No. 39 of 2015. In the said case, the petitioner was engaged in the business of sale of paper lottery tickets and had procured, during the course of said business, the lottery tickets in bulk from the Governme .....

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of which is similar to the agreement entered into by the assessee in the present case with its stockists (sample copy available at page 129 to 137 of the paper book), it was held by Their Lordships that the activity of the petitioner comprising of promotion, organising, reselling or in any other manner assisting or arranging the lottery tickets of the State, did not establish the relationship of principal and agent but it was rather that of a buyer and a seller on principal to principal basis in .....

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ages 129 to 137 of the paper book), the assessee-firm and the stockists were acting on principal to principal basis, inasmuch as, the stockists were free to act in their capacity and once the lottery tickets were sold to them, such lottery tickets stood transferred to the stockists. The stockists were mainly concerned with their shares on sale of lottery tickets and they were not entitled to receive any commission on sale of lottery tickets from the assessee. They were free to sale the lottery t .....

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and there being no principal - agent relationship between them as held by the Hon'ble High Court of Sikkim in the case of Future Gaming and Hotel Services Pvt. Limited (supra), we agree with the contention of the ld. counsel for the assessee that the amount in question was not in the nature of commission as defined in clause (i) of Explanation to Section 194H so as to attract the provision of section 40(a)(ia) read with section 194G. In our opinion, the amount in question representing the di .....

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ursed as prize monies on lottery tickets under section 194G, no disallowance under section 40(a)(ia) could be made for the failure of the assessee to do so in the assessment completed by the Assessing Officer under section 143(3)/144 since the books of account of the assessee were rejected by him by invoking the provision of section 145(3) and the income of the assessee from lottery business was determined on estimated basis. In support of this contention, he has relied on the decision of the Co .....

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e of the assessee to deduct tax at source from the payment of hire charges, transportation charges and slurry removable charges. On confirmation of the said disallowance by the ld. CIT(Appeals), an appeal was preferred by the assessee before the Tribunal and the Tribunal vide its order dated 13.03.2014 (supra) deleted the disallowance made by the Assessing Officer by invoking the provision of section 40(a)(ia) for the following reasons given in paragraph no. 5 of its order:- "5. We find tha .....

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expenses at 50%. Whether the AO can disallow the expenses which are directly related to gross receipt of the assessee on which the AO has estimated net profit by applying the rate of 8%. It is a fact that the assessee has not produced books of account, it means that the AO has not relied on books of account for estimation of profits. This fact is accepted by assessee as wll as by revenue. We are of the view that once the net profit rate is estimated the AO cannot base his disallowance on the sam .....

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by the assessee, there was no need to look into the provisions of section 40(a)(ia) of the Act or section 37 of the Act. Accordingly, no disallowance could have been made in view of the above facts that once the profit is estimated by applying net profit rate. Accordingly, we direct the AO to delete the other disallowances and restrict the addition by applying Net Profit rate @ 8% of gross receipts. Appeal of assessee is allowed". 26. Against the order passed by the Tribunal in the case of .....

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tta High Court after extracting paragraph no. 5 of the Tribunal's order in their judgment held that there were valid reasons given by the Tribunal in support of its decision to delete the disallowance made by the Assessing Officer under section 40(a)(ia) and dismissed the appeal of the Revenue filed in the case of Shri Arun Bhowmik (supra) holding that the order of the Tribunal did not give rise to any substantial question of law. The decision rendered by the Coordinate Bench of this Tribuna .....

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squarely applicable in the facts of the present case. Respectfully following the same, we hold that the order passed by the Assessing Officer under section 143(3)/144 without making disallowance under section 40(a)(ia) when the books of account of the assessee were rejected and the income of the assessee was determined on the estimated basis was neither erroneous nor prejudicial to the interest of the Revenue as alleged by the ld. CIT and the revision of the same by him under section 263 was no .....

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hereafter the Commissioner of Income Tax in exercise of his revisional powers under section 263 directed the Assessing Officer to make a further addition of ₹ 63,859/-to the income of the assessee estimated by him on account of interest and salary paid to the partners by applying the provisions of section 40(b) of the Act. The Tribunal upheld the order of the ld. Commissioner of Income Tax passed under section 263 and when the matter reached to the Hon'ble Andhra Pradesh High Court on .....

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ained in section 30 to 43D of the Act. It was also noted that section 40 provides for certain disallowances in certain cases notwithstanding that those amounts are allowed generally under other sections. It was observed by the Hon'ble Andhra Pradesh High Court that the computation under section 29 is to be made under section 145 on the basis of the books regularly maintained by the assessee and if those books are not correct or complete, the Income Tax Officer may reject those books and esti .....

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to the best of his judgment, the Assessing Officer cannot make any disallowance under section 40 separately as the same is deemed to have been taken into account by him while making such estimate. In our opinion, the ratio of this decision rendered by the Hon'ble Andhra Pradesh High Court in the case of Indwell Constructions (supra) is also squarely applicable in the facts of the present case and the order passed by the Assessing Officer under section 143(3)/144 without making disallowance u .....

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kets under section 194G, the question of disallowance under section 40(a)(ia) does not arise and the order of the Assessing Officer passed under section 143(3) not making such disallowance is neither erroneous nor prejudicial to the interest of the Revenue calling for revision under section 263. These contentions raised by the ld. counsel for the assessee are summarized below:- (i) The amount in question representing disbursal of prize monies on lottery tickets was paid by the assessee to the st .....

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son responsible for paying" the prize monies on lottery tickets in terms of section 204 read with sections 194B and 194G of the Act, as the person responsible for paying prize monies exceeding ₹ 5,000/- was Royal Government of Bhutan, while the persons responsible for payment of prize monies upto ₹ 5,000/- were the retailers /sellers, who had ultimately sold the tickets to the general public and the question of liability to deduct tax under section 194G or consequential disallow .....

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of income by way of winning from any lottery, etc. and not under section 194G and since the provisions of section 194B were applicable only when such income exceeded ₹ 5,000/-, even the said provisions were not applicable in the case of the assessee. 29. At the time of hearing, the ld. counsel for the assessee has vehemently argued the case of the assessee by raising the above contentions and has also explained the assessee's stand thereon by filing detailed written submission. Howeve .....

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port of the assessee's case. However, suffice it to say that all these contentions raised by the ld. counsel for the assessee clearly show that the issue involved in the case of the assessee relating to the disallowance under section 40(a)(ia) read with section 194G is highly debatable on which one possible view was taken by the Assessing Officer while completing the assessment under section 143(3)/144 wherein no disallowance under section 40(a)(ia) was made by him. It is well settled positi .....

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when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income Tax Officer is unsustainable in law. To the similar effect is the decision of the Hon'ble Bombay High Court in the case of CIT v. Gabriel .....

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