DCIT, Circle - 8, Kolkata, Kolkata V. M/s. Unique International Pvt. Ltd., Kolkata

ITA 1295/KOL/2011

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4535 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2016
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 13-07-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 03-10-2011
• Court: TRIBUNAL
• Assessee Lawyers: R K AGARWAL; K K
• Keywords: Sale consideration of property below Jantri Value; Depreciation; Revised return; Unabsorbed depreciation
• Section: 143(3); 50C; 115JB

Judgement Text

I.T.A. NO. 1295/KOL./2011 ASSESSMENT YEAR: 2006-2007 & C.O. NO. 60/KOL/2011 (IN ITA NO. 1295/KOL/2011) ASSESSMENT YEAR: 2006-2007 PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISHWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1295 /KOL/ 2011 ASSESSMENT YEAR: 2006-2007 DEPUTY COMMISSIONER OF INCOME TAX,................. ..................APPELLANT CIRCLE-8, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 -VS.- M/S. UNIQUE INTERNATIONAL PVT. LTD.,............... .......................RESPONDENT 30, J.L. NEHRU ROAD, KOLKATA-700 016 [PAN: AAACU 3880 F] & C.O. NO. 60/KOL/2011 (ARISING OUT OF ITA NO. 1295/KOL/2011) ASSESSMENT YEAR : 2006-2007 M/S. UNIQUE INTERNATIONAL PVT. LTD.,............... .......................CROSS OBJECTOR 30, J.L. NEHRU ROAD, KOLKATA-700 016 [PAN: AAACU 3880 F] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. .......................RESPONDENT CIRCLE-8, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI SALLONG YADEN, ADDL. JCIT, D.R., FOR THE DEPARTMENT SHRI R.K. AGARWAL, SR. ADVOCATE AND SHRI K.K. CHAPA RIA, FCA, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JULY 13, 2016 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 7 TH , 2016 O R D E R PER SHRI P.M. JAGTAP, A.M .: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-VIII, KOLKATA DATED 07.07.2011 FOR I.T.A. NO. 1295/KOL./2011 ASSESSMENT YEAR: 2006-2007 & C.O. NO. 60/KOL/2011 (IN ITA NO. 1295/KOL/2011) ASSESSMENT YEAR: 2006-2007 PAGE 2 OF 9 THE ASSESSMENT YEAR 2006-07 AND THE SAME IS BEING D ISPOSED OF ALONG WITH THE CROSS OBJECTION FILED BY THE ASSESSEE BEIN G C.O. NO. 60/KOL/2011. 2. IN THE FIRST GROUND RAISED IN ITS APPEAL, THE RE VENUE HAS CHALLENGED THE ACTION OF THE LD. CIT(APPEALS) IN ALLOWING THE CLAIM OF THE ASSESSEE FOR SET OFF OF UNABSORBED DEPRECIATION LOSS OF THE AMAL GAMATING COMPANY CARRIED FORWARD AMOUNTING TO RS.84,22,538/- IN THE ASSESSMENT OF THE ASSESSEE-COMPANY BEING AMALGAMATED COMPANY EVEN THO UGH THE AMALGAMATING COMPANY WAS NOT ENGAGED IN THE BUSINES S FOR THREE OR MORE YEARS. 3. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORTING OF LEAT HER GOODS AND MANUFACTURING OF PEN REFILLS AS WELL AS TRADING OF PENS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS ORIGINA LLY FILED BY IT ON 29.11.2006 DECLARING TOTAL INCOME OF RS.42,90,186/- . SUBSEQUENTLY A REVISED RETURN WAS FILED BY THE ASSESESE ON 04.12.2 007 DECLARING TOTAL INCOME AT NIL AND BOOK PROFIT UNDER SECTION 115JB OF THE ACT AT RS.1,23,86,308/-. AS PER THE ORDER OF THE HONBLE H IGH COURT OF CALCUTTA DATED 06.07.2005, M/S. SURYA KIRAN UDYOG PVT. LTD. (AMALGAMATING COMPANY) WAS AMALGAMATED WITH THE ASSESSEE-COMPANY (AMALGAMATED COMPANY) W.E.F. 01.04.2004. IN THE REVISED COMPUTAT ION OF TOTAL INCOME DONE AS PER THE NORMAL PROVISIONS OF THE ACT, THE B ROUGHT FORWARD DEPRECIATION LOSS OF THE AMALGAMATING COMPANY PERTA INING TO A.Y. 2003- 04 AND 2004-05 AMOUNTING TO RS.84,22,538/- WAS SET OFF BY THE ASSESSEE- COMPANY AGAINST ITS INCOME FOR THE YEAR UNDER CONSI DERATION. THE CLAIM OF THE ASSESSEE FOR SUCH SET OFF WAS EXAMINED BY TH E ASSESSING OFFICER AS PER THE RELEVANT PROVISIONS OF SECTION 72A OF THE I NCOME TAX ACT, 1961 READ WITH RULE 9C OF THE INCOME TAX RULES, 1962. ON SUCH EXAMINATION, HE FOUND THAT ONE OF THE CONDITIONS TO BE SATISFIED IN ORDER TO CLAIM SUCH SET I.T.A. NO. 1295/KOL./2011 ASSESSMENT YEAR: 2006-2007 & C.O. NO. 60/KOL/2011 (IN ITA NO. 1295/KOL/2011) ASSESSMENT YEAR: 2006-2007 PAGE 3 OF 9 OFF WAS THAT THE AMALGAMATING COMPANY SHOULD BE ENG AGED IN THE BUSINESS IN WHICH THE ACCUMULATED LOSS OCCURRED OR DEPRECIATION REMAINED UNABSORBED, FOR THREE OR MORE YEARS. IN TH IS REGARD, HE NOTED THAT EVEN THOUGH THE DATE OF INCORPORATION OF M/S. SURYA KIRAN UDYOG PVT. LTD. (AMALGAMATING COMPANY) WAS 13.09.2001, IT WAS IN THE PROCESS OF SETTING UP PLANT UPTO 31.03.2001 AND THERE WAS NO C OMMENCEMENT OF BUSINESS AT ALL TILL THAT DATE. ACCORDING TO HIM, T HE SAID AMALGAMATING COMPANY THUS WAS NOT ENGAGED IN THE BUSINESS, IN WH ICH THE ACCUMULATED LOSS OCCURRED OR DEPRECIATION REMAINED UNABSORBED, FOR THREE YEARS OR MORE AND THE ASSESSEE-COMPANY (AMALGAMATED COMPANY) WAS NOT ENTITLED TO CLAIM SET OFF OF LOSSES OF M/S. SURYA KIRAN UDYO G PVT. LTD. (AMALGAMATING COMPANY). ACCORDINGLY THE CLAIM OF TH E ASSESSEE-COMPANY FOR SUCH SET OFF WAS DISALLOWED BY THE ASSESSING OF FICER IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 29.12.2008. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFIC ER UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) DISPUTING, INTER ALIA, THE DISALLOWANC E MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ITS CLAIM FOR SET O FF OF BROUGHT FORWARD LOSS OF AMALGAMATING COMPANY. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(APPEALS), IT WAS SUB MITTED ON BEHALF OF THE ASSESSEE-COMPANY THAT THE AMALGAMATING COMPANY WAS IN THE PROCESS OF SETTING UP A PLANT FOR MANUFACTURING BALL PEN TIPS DURING THE FIRST YEAR ITSELF, I.E. FINANCIAL YEAR 2001-02 AS IS EVIDENT F ROM THE INVESTMENT MADE IN CAPITAL WORK-IN-PROGRESS, WHICH AS ON 31.03.2012 WAS RS.5,07,57,755/- . IT WAS ALSO SUBMITTED THAT THE AMALGAMATION SCHEM E HAD BECOME EFFECTIVE ON 05.09.2005 WHEN THE CERTIFIED COPY OF THE COURTS ORDER SANCTIONING SUCH SCHEME WAS FILED WITH THE REGISTRA R OF COMPANIES. IT WAS CONTENDED THAT THE AMALGAMATING COMPANY THUS WA S ENGAGED IN THE BUSINESS OF MANUFACTURING OF BALL PEN TIPS FOR MORE THAN THREE YEARS AND THE RELEVANT CONDITION TO CLAIM THE SET OFF OF LOSS OF THE SAID COMPANY I.T.A. NO. 1295/KOL./2011 ASSESSMENT YEAR: 2006-2007 & C.O. NO. 60/KOL/2011 (IN ITA NO. 1295/KOL/2011) ASSESSMENT YEAR: 2006-2007 PAGE 4 OF 9 AGAINST THE INCOME OF THE AMALGAMATED COMPANY WAS D ULY SATISFIED. THE LD. CIT(APPEALS) FOUND MERIT IN THIS CONTENTION RAI SED ON BEHALF OF THE ASSESSEE AND ALLOWED THE CLAIM OF THE ASSESSEE FOR SET OFF OF UNABSORBED DEPRECIATION LOSS OF THE AMALGAMATING COMPANY AGAIN ST ITS INCOME FOR THE YEAR UNDER CONSIDERATION. 5. THE LD. D.R. CONTENDED THAT THE EFFECTIVE DATE OF AMALGAMATION AS APPROVED BY THE HONBLE HIGH COURT WAS 01.04.2004 A ND SINCE THE AMALGAMATING COMPANY WAS INCORPORATED ONLY ON 13.09 .2001, THE CONDITION OF BEING IN THE BUSINESS FOR MORE THAN TH REE YEARS WAS CERTAINLY NOT SATISFIED. HE CONTENDED THAT THE DATE OF RECEIP T OF ORDER OF THE HONBLE HIGH COURT OR THE DATE OF FILING THE SAID O RDER WITH THE REGISTRAR OF COMPANIES IS NOT RELEVANT FOR DECIDING THE EFFEC TIVE DATE OF AMALGAMATION AND THE LD. CIT(APPEALS) IS NOT JUSTIF IED TO RELY ON THE SAID DATE TO HOLD THAT THE CONDITION OF AMALGAMATING COM PANY BEING ENGAGED IN THE BUSINESS FOR MORE THAN THREE YEARS WAS DULY SATISFIED. 6. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, CONTENDED THAT THE EFFECTIVE DATE OF AMALGAMATION WAS 01.04.2004 A S APPROVED IN THE ORDER OF THE HONBLE CALCUTTA HIGH COURT. HE CONTEN DED THAT THE AMALGAMATING COMPANY HOWEVER WAS ENGAGED IN THE BUS INESS OF MANUFACTURING BALL PEN TIPS RIGHT FROM 13.10.2001 W HEN THE FIRST PAYMENT WAS MADE BY IT FOR PURCHASE OF MACHINERY. HE CONTEN DED THAT THE FIRST YEAR OF BUSINESS OPERATION IN CASE OF AMALGAMATING COMPANY THUS WAS COMPLETED ON 31.03.2002 ITSELF AND THE CONDITION OF BEING IN THE BUSINESS OF THREE YEARS OR MORE ON THE DATE OF AMALGAMATION, I.E. 01.04.2004 WAS DULY SATISFIED. IN THIS REGARD, HE RELIED ON THE DE FINITION OF PREVIOUS YEAR GIVEN IN SECTION 3 OF THE INCOME TAX ACT, WHICH PRO VIDES THAT IN THE CASE OF A BUSINESS OR PROFESSION NEWLY SET UP IN ANY FIN ANCIAL YEAR, THE PREVIOUS YEAR SHALL BE THE PERIOD BEGINNING WITH TH E DATE OF SETTING UP THE BUSINESS OR PROFESSION AND ENDING WITH THE RELE VANT FINANCIAL YEAR. HE I.T.A. NO. 1295/KOL./2011 ASSESSMENT YEAR: 2006-2007 & C.O. NO. 60/KOL/2011 (IN ITA NO. 1295/KOL/2011) ASSESSMENT YEAR: 2006-2007 PAGE 5 OF 9 ALSO CONTENDED THAT SINCE THE DEFINITION OF YEAR IS NOT GIVEN IN THE RELEVANT PROVISIONS OF SECTION 72A OF THE ACT, THE DEFINITION OF PREVIOUS YEAR AS GIVEN IN SECTION 3 IS REQUIRED TO BE TAKEN INTO CONSIDERATION. HE FURTHER CONTENDED THAT EVEN IF THE TERM YEAR IS D EFINED IN SECTION 3(66) OF THE GENERAL CLAUSES ACT TO MEAN A YEAR RECKONED ACCORDING TO THE BRITISH CALENDAR, THE TEXT AND CONTEXT OF THE RELEV ANT PROVISIONS OF SECTION 72A IS REQUIRED TO BE CONSIDERED TO INTERPR ET THE MEANING OF THE TERM YEAR USED THEREIN. IN SUPPORT OF THIS CONTEN TION, HE RELIED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF APEEJAY SURENDRA PARK HOTEL LIMITED & ANOTHER VS.- UNION OF INDIA & OTHERS REPORTED IN 383 ITR 697, WHEREIN IT WAS HELD THAT WHILE ASSIGNI NG THE MEANING TO ANY TERM, THE CONTEXT IN WHICH THE SAME HAS BEEN USED, THE PARTICULAR STATUTE IN WHICH IT OCCURS AND THE LEGISLATIVE INTENT HAS T O BE TAKEN INTO CONSIDERATION. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT M/S. SURYA KIRAN UDYOG PVT. LTD. (AMALGAMATING COMPANY) WAS AMALGAMA TED WITH THE ASSESSEE-COMPANY (AMALGAMATED COMPANY) AS PER THE O RDER OF THE HONBLE CALCUTTA HIGH COURT AND THE EFFECTIVE DATE OF SUCH AMALGAMATION WAS 01.04.2004 AS PER THE ORDER OF THE HONBLE HIGH COURT, WHICH IS NOT IN DISPUTE. THE SAID AMALGAMATING COMPANY WAS INCOR PORATED ON 13.09.2001 AND THE FIRST STEP TO SET UP THE BUSINES S OF MANUFACTURING BALL PEN TIPS WAS TAKEN BY IT ON 13.10.2001 WHEN THE ORD ER FOR PURCHASE OF MACHINERY WAS PLACED. IF THE SAID DATE IS TAKEN AS THE DATE OF COMMENCEMENT OF BUSINESS BY THE AMALGAMATING COMPAN Y, THE QUESTION IS WHETHER THE CONDITION STIPULATED IN THE RELEVANT PR OVISIONS THAT THE AMALGAMATING COMPANY SHOULD HAVE BEEN ENGAGED IN TH E BUSINESS FOR THREE OR MORE YEARS IS SATISFIED OR NOT. THE RELEVA NT PROVISION AS CONTAINED IN SUB-SECTION 1 OF SECTION 72A IN THIS R EGARD IS EXTRACTED BELOW:- I.T.A. NO. 1295/KOL./2011 ASSESSMENT YEAR: 2006-2007 & C.O. NO. 60/KOL/2011 (IN ITA NO. 1295/KOL/2011) ASSESSMENT YEAR: 2006-2007 PAGE 6 OF 9 THE AMALGAMATING COMPANY SHOULD BE ENGAGED IN THE BUSINESS IN WHICH THE ACCUMULATED LOSS OCCURRED OR DEPRECIAT ION REMAINS UNABSORBED, FOR THREE OR MORE YEARS. 8. THE TERM USED IN THE RELEVANT PROVISION THUS IS THREE OR MORE YEARS AND NOT THREE OR MORE PREVIOUS YEARS. THE DEFINITION OF THE PREVIOUS YEAR AS GIVEN IN SUB-SECTION 3 OF THE ACT THUS IS NOT RELEVANT IN THIS CONTEXT AND THE SAME, IN OUR OPINION, CANNO T BE ADOPTED AS SOUGHT TO BE CONTENDED BY THE LD. COUNSEL FOR THE A SSESSEE. THE WORD YEAR NO DOUBT IS NOT DEFINED EITHER IN THE RELEVA NT PROVISIONS OF SECTION 72A OF THE INCOME TAX ACT OR ANYWHERE ELSE IN THE SAID STATUTE AND IN THE ABSENCE OF THE SAME, ONE HAS TO LOOK INTO THE MEANING AS ASSIGNED TO THE SAID WORD IN THE GENERAL CLAUSES ACT. SECTION 3(66) OF THE GENERAL CLAUSES ACT DEFINES Y EAR TO MEAN A CALENDAR YEAR RECKONED ACCORDING TO THE BRITISH CAL ENDAR. THE GENERAL CLAUSES ACT IS, AS ITS VERY NATURE IMPLIES, A GENERAL ACT SUBJECT TO THE PARTICULAR CONTEXT. IF THERE IS NOTH ING ELSE TO GUIDE THE COURT IN THE PARTICULAR CASE, REGARDING THE YEAR, T HEN THE YEAR HAS TO BE TAKEN AS A CALENDAR YEAR. NO DOUBT, THE TEXT OF THE RELEVANT PROVISIONS, IN WHICH THE WORD YEAR IS USED AND TH E CONTEXT IN WHICH SUCH WORD HAS BEEN USED ALONG WITH THE LEGISLATIVE INTENTION HAS TO BE TAKEN INTO CONSIDERATION WHILE ASSIGNING ANY MEA NING TO THE SAID WORD. IF THE TEXT AND CONTEXT OF THE RELEVANT PROVI SIONS OF SECTION 72A IN THIS REGARD ARE TAKEN INTO CONSIDERATION, WE FIN D THAT THE PERIOD OF THREE OR MORE YEARS AS SPECIFIED THEREIN CLEARLY SI GNIFIES THREE OR MORE CALENDAR YEARS AND NOT CERTAINLY THREE OR MORE PREVIOUS YEARS AS DEFINED IN SECTION 3 OF THE ACT. THE TERM PREVI OUS YEAR AS DEFINED IN SECTION 3 OF THE ACT IS ALTOGETHER DIFFERENT AND THE SAME, THEREFORE, CANNOT BE ADOPTED TO GIVE MEANING TO THE WORD YEAR USED IN THE RELEVANT PROVISIONS OF SECTION 72A GOING BY IT TEX T AND CONTEXT. THE SAID WORD CLEARLY SIGNIFIES THE CALENDAR YEAR AND S INCE THE I.T.A. NO. 1295/KOL./2011 ASSESSMENT YEAR: 2006-2007 & C.O. NO. 60/KOL/2011 (IN ITA NO. 1295/KOL/2011) ASSESSMENT YEAR: 2006-2007 PAGE 7 OF 9 AMALGAMATING COMPANY IN THE PRESENT CASE WAS NOT EN GAGED IN THE BUSINESS, IN WHICH THE ACCUMULATED LOSS OCCURRED OR DEPRECIATION REMAINED UNABSORBED, FOR THREE OR MORE CALENDAR YEA RS, WE ARE OF THE VIEW THAT THE CONDITION STIPULATED IN THE RELEVANT PROVISIONS OF SECTION 72A WAS NOT SATISFIED AND THE ASSESSEE-COMP ANY BEING AMALGAMATED COMPANY WAS NOT ENTITLED TO CLAIM SET O FF OF THE BROUGHT FORWARD LOSS OF THE AMALGAMATING COMPANY AGAINST IT S INCOME FOR THE YEAR UNDER CONSIDERATION. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) GIVING RELIEF TO THE ASSESSEE ON THIS ISSUE AND RESTORE THAT OF THE ASSESSING OFFICER. 9. AS REGARDS THE ISSUE INVOLVED IN GROUND NO. 2 OF THE REVENUES APPEAL RELATING TO THE DELETION BY THE LD. CIT(APPE ALS) OF THE DISALLOWANCE OF RS.77,829/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF BELATED PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS P.F. AND E.S.I. AFTER THE EXPIRY OF DUE DATES PRESCRIBED IN THE RELEVANT STAT UTE BUT BEFORE THE DATE OF FILING THE RETURN OF INCOME FOR THE YEAR UNDER C ONSIDERATION, THE LD. REPRESENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THE SAME IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE, INTER ALIA, BY T HE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS.- ALOM EXTRUSIONS LIMITED REPORTED IN 319 ITR 306 AND IN THE CASE OF CIT VS. - VINAY CEMENT LIMITED REPORTED IN 213 CTR 268. RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THESE CASES, WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) GIVING RELIEF TO THE ASSESS EE ON THIS ISSUE AND DISMISS GROUND NO. 2 OF THE REVENUES APPEAL. 10. IN THE SOLITARY GROUND RAISED IN ITS CROSS OBJE CTION, THE ASSESSEE- COMPANY HAS CHALLENGED THE ADDITION OF RS.39,07,500 /- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPE ALS) ON ACCOUNT OF SHORT-TERM CAPITAL GAIN ON SALE OF PROPERTY BY APP LYING THE PROVISIONS OF SECTION 50C OF THE ACT. I.T.A. NO. 1295/KOL./2011 ASSESSMENT YEAR: 2006-2007 & C.O. NO. 60/KOL/2011 (IN ITA NO. 1295/KOL/2011) ASSESSMENT YEAR: 2006-2007 PAGE 8 OF 9 11. IN ITS RETURN OF INCOME FILED FOR THE YEAR UNDE R CONSIDERATION, THE ASSESSEE-COMPANY HAD DECLARED SHORT-TERM CAPITAL GA IN OF RS.33,64,430/- ON SALE OF PROPERTY AS WORKED OUT BY REDUCING THE C OST OF ACQUISITION OF RS.3,14,31,770/- FROM THE SALE CONSIDERATION OF RS. 3,47,96,200/- AS PER THE RELEVANT SALE DEED. IN THIS REGARD, IT WAS NOTI CED BY THE ASSESSING OFFICER THAT THE VALUE OF THE PROPERTY SOLD BY THE ASSESSEE AS ADOPTED OR ASSESSED BY THE CONCERNED AUTHORITY OF THE STATE GO VERNMENT FOR THE PURPOSE OF PAYMENT OF STAMP DUTY WAS RS.3,87,03,700 /-. APPLYING THE PROVISIONS OF SECTION 50C, HE ADOPTED THE SAID VALU E AS DEEMED SALE CONSIDERATION OF THE PROPERTY SOLD BY THE ASSESSEE AND RECOMPUTED THE SHORT-TERM CAPITAL GAIN AT RS.72,71,930/- RESULTING IN ADDITION OF RS.39,07,500/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF SHORT- TERM CAPITAL GAIN. ON APPEAL, THE LD. CIT(APPEALS) UPHELD THE ACTION OF THE ASSESSING OFFICER ON THIS ISSUE. 12. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES O N THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON REC ORD. RELYING ON THE VARIOUS DECISIONS OF THE TRIBUNAL, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE PROPERTY IN QUESTION TRANSFERRED BY THE ASSESSEE- COMPANY DURING THE YEAR UNDER CONSIDERATION BEING I N THE NATURE OF BOOKING RIGHTS AND NOT LAND AND BUILDING, SECTION 5 0C IS NOT APPLICABLE. THE LD. D.R., ON THE OTHER HAND, HAS CONTENDED THAT THIS CONTENTION IS BEING RAISED ON BEHALF OF THE ASSESSEE FOR THE FIRS T TIME BEFORE THE TRIBUNAL, AND THEREFORE, AN OPPORTUNITY SHOULD BE G IVEN TO THE ASSESSING OFFICER TO EXAMINE/VERIFY THE SAME. WE FIND MERIT I N THIS CONTENTION OF THE LD. D.R. AND SINCE THE LD. COUNSEL FOR THE ASSE SSEE ALSO HAS NOT RAISED ANY OBJECTION IN THIS REGARD, WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTE R EXAMINING/VERIFYING THE CONTENTION OF THE ASSESSEE THAT THE PROPERTY IN QUESTION TRANSFERRED DURING THE YEAR UNDER CONSIDERATION BEING IN THE NA TURE OF BOOKING RIGHTS I.T.A. NO. 1295/KOL./2011 ASSESSMENT YEAR: 2006-2007 & C.O. NO. 60/KOL/2011 (IN ITA NO. 1295/KOL/2011) ASSESSMENT YEAR: 2006-2007 PAGE 9 OF 9 AND NOT LAND AND BUILDING, SECTION 50C HAS NO APPLI CATION. THE CROSS OBJECTION OF THE ASSESSEE IS ACCORDINGLY TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 13. IN THE RESULT, THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED, WHILE THE CROSS OBJECTION OF THE ASSESSEE IS TREATED AS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 7 TH , 2016. SD/- SD/- (S.S. VISHWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT ME MBER KOLKATA, THE 7 TH DAY OF SEPTEMBER, 2016 ORDER PRONOUNCED BY SD/- SD/- (J.M.) (A.M.) S.S.V.R. W.A. COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-8, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (2) M/S. UNIQUE INTERNATIONAL PVT. LTD., 30, J.L. NEHRU ROAD, KOLKATA-700 016 (3) COMMISSIONER OF INCOME TAX (APPEALS)-VIII, KO LKATA; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.