DCIT, CIR-4, KOLKATA, Kolkata V. M/s TRFI Investment Pvt. Ltd., Kolkata

ITA 1331/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1714 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 29-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Revised return
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SHRI ABY. T. VARKEY, JM & SHRI M. BALAGANESH, AM ] I.T.A NO. 1331/KOL/20 14 ASSESSMENT YEAR : 2009-1 0 DCIT, CIRCLE-4, KOLKATA -VS- M/S TRFI INVESTMENT PVT. LTD. [PAN: AABCT 2633 H] (APPELLANT) (RESPONDE NT) FOR THE APPELLANT : SHRI DAVID Z. CHOW NGTHU, ADDL. CIT SR.DR FOR THE RESPONDENT : SHRI RATAN LAL DAL, ADVO CATE DATE OF HEARING : 24.08.2017 DATE OF PRONOUNCEMENT : 06.09.2017 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE REVENUE ARISES OUT OF THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-IV, KOLKATA [IN SHORT THE LD. CIT(A)] IN APPEAL NO. 248/CIT(A)- IV/2011-12 DATED 20.02.2014 AGAINST THE ORDER PASSE D BY THE DCIT, CIRCLE-4, KOLKATA [IN SHORT THE LD. AO] U/S 143(3) OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT] DATED 21.12.2011 FOR THE ASSESSMENT YEAR 2009-10. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL OF T HE REVENUE IS AS TO WHETHER THE LD CITA WAS JUSTIFIED IN DIRECTING THE LD AO TO GRANT EXEMPTION U/S 10(38) OF THE ACT TO THE ASSESSEE IN RESPECT OF LONG TERM CAPITAL GAINS, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE COMPANY FILED ITS RETURN OF INCOME FOR THE ASST YEAR 2009-10 ELECTRONICALLY ON 10.11.2009 DECLARING TOTAL INCOME OF RS NIL AFTER SETTING OFF THE NET PROFIT OF RS 50,05,804/- WITH THE BROUGH FORWARD LOSSES OF THE EARLIER YEARS . THE ASSESSEE DID NOT SHOW ANY PRO FIT ON ACCOUNT OF CAPITAL GAINS IN THE 2 ITA NO.1331/KOL/2014 M/S TRFI INVESTMENT PVT. LTD. A.YR.2009-10 2 COMPUTATION OF INCOME BUT SUBSEQUENTLY DURING THE A SSESSMENT PROCEEDINGS, IT FILED A FRESH COMPUTATION OF INCOME WHEREIN THE PROFIT ON S ALE OF CERTAIN INVESTMENTS WERE REFLECTED AND ALSO THE NET PROFIT WAS REVISED. THE REVISED COMPUTATION OF INCOME IS AS UNDER:- NET LOSS AS PER PROFIT AND LOSS ACCOUNT ( 91,51,622) ADD: DEPRECIATION AS PER BOOKS 42,763 EXPENSES DISALLOWED U/S 40(A) - FRINGE BENEFIT TAX 4,086 - INTERSET PAID ON WHICH TDS NOT DEPOSITED 4,10,72,875 -------------------- 4,11,19, 724 ----------------- 3,19,68,102 LESS: DEPRECIATION AS PER IT ACT 41,411 PROFIT ON SALE OF INVESTMENT EXEMPT U/S 10(38) BEING LONG TERM CAPITAL GAIN 3,37,52,643 -------------------- 3,37,94,054 ----------------- GROSS TOTAL INCOME (18,25,952) -------------------- 3.1. THE ASSESSEE IN THE ORIGINAL RETURN, SHOWED NE T PROFIT AS PER PROFIT AND LOSS ACCOUNT OF RS 50,05,804/- . BUT LATER IN THE REVISED COMPU TATION OF INCOME, HE DISCLOSED NET LOSS AS PER PROFIT AND LOSS ACCOUNT OF (RS 91,51,622/-). THE DIFFERENCE OF RS 1,41,55,774/- IS DUE TO CHANGE OF PENAL INTEREST ON THE LOAN OF RS 9 CRORES AS PER AGREEMENT BETWEEN UNITECH HOLDING LTD AND ASSESSEE COMPANY. THIS DIF FERENCE WAS ACCEPTED BY THE LD AO AS A GENUINE DIFFERENCE AND THE LD AO COMPLETED THE ASSESSMENT STARTING THE COMPUTATION FROM NET LOSS AS PER PROFIT AND LOSS AC COUNT AT RS 91,51,622/- ONLY. THE ASSESSEE CLAIMED LONG TERM CAPITAL GAINS FROM SALE OF CERTAIN INVESTMENTS AS UNDER:- 3 ITA NO.1331/KOL/2014 M/S TRFI INVESTMENT PVT. LTD. A.YR.2009-10 3 DETAILS OF SHARE PURCHASE AND SALE FOR THE F.Y. 200 8-09 NAME OF COMPANY PURCHASE SALE PROFIT ON SALE DATE QTY. RS. DATE QTY. RS. RS. ESSAR STEEL OLD 120 5460 06.10.2008 120 5760 300 TATA SPONGE OLD 200 13600 14.11.2008 200 28000 14400 ORISSA SPONGE IRON & STEEL LTD. OLD 458410 3517430 29.11.2008 458410 37217523 33700093 TATA TEA LTD. OLD 100 39044 30.12.2008 100 50100 11056 REALINCE INDUSTRIES LTD. OLD 9 2209 01.02.2009 9 12650 10441 TISCO OLD 182 24323 31.03.2009 182 40677 16353 TOTAL - 459021 3602067 459021 37354710 33753643 3.2. THIS LONG TERM CAPITAL GAINS DULY SUFFERED SEC URITIES TRANSACTION TAX (STT) AND ACCORDINGLY THE SAME IS EXEMPT U/S 10(38) OF THE AC T. BUT THE ASSESSEE IN THE ORIGINAL RETURN OF INCOME REFLECTED THIS LONG TERM CAPITAL G AIN OF RS 3,37,52,643/- IN POINT NO. 3G OF PART A-P&L UNDER PROFIT ON SALE OF OTHER INV ESTMENT , INSTEAD OF SHOWING THE SAME IN POINT NO. 3F OF PART A- P&L UNDER PROFIT O N SALE OF INVESTMENT BEING SECURITIES CHARGEABLE TO SECURITIES TRANSACTION TAX (STT). THIS MISTAKE WAS RECTIFIED BY THE ASSESSEE BY WAY OF FILING A REVISED RETURN ON 10.11 .2009. MOREOVER, IN POINT NO. 3 OF PART B-TI AS WELL AS IN SCHEDULE CG (CAPITAL GAIN), THE ASSESSEE HAS CLAIMED CAPITAL GAIN FOR THE RELEVANT YEAR AS NIL. THIS WAS SHOWN AS NIL BECAUSE SINCE THE SALE HAD HAPPENED THROUGH RECOGNIZED STOCK EXCHANGE AND HAD BEEN DULY SUBJECTED TO STT, THE SAME IS EXEMPT U/S 10(38) OF THE ACT. THIS WAS NOT APPRECIATED BY THE LD AO AND HE ACCORDINGLY PROCEEDED TO TAX THE SAID GAINS AT THE NORMAL RATES AND ASSESSMENT WAS COMPLETED ACCORDINGLY. 4. THE ASSESSEE PLEADED BEFORE THE LD CITA THAT THE REVISED COMPUTATION OF INCOME WAS PARTIALLY RECOGNIZED BY THE LD AO AND WHEN IT COMES TO CLAIM OF EXEMPTION U/S 10(38) 4 ITA NO.1331/KOL/2014 M/S TRFI INVESTMENT PVT. LTD. A.YR.2009-10 4 OF THE ACT IN RESPECT OF LONG TERM CAPITAL GAIN, TH E SAME WAS NOT ACCEPTED BY THE LD AO. IT WAS PLEADED THAT THE REVENUE IS SUPPOSED T O GUIDE THE ASSESSEE IN THE PROPER WAY AND CANNOT WRONGFULLY COLLECT UNWARRANTED TAXES FROM AN ASSESSEE AND IN THIS REGARD, THE ASSESSEE PLACED RELIANCE ON THE CBDT CI RCULAR NO. 14(XL-35) DATED 11.4.1955 AND CERTAIN DECISIONS OF HONBLE SUPREME COURT . THE ASSESSEE PLEADED THAT IN THE INSTANT CASE SINCE THE RELIEF U/S 10(38) OF THE ACT WHICH WAS CLEARLY AVAILABLE TO THE ASSESSEE ON THE FACTS OF THE CASE AND AVAILABLE FROM THE MATERIALS WHICH WERE PRESENT ON THE RECORD OF THE LD AO, THERE WAS AN ERROR APPA RENT ON THE FACE OF THE RECORD OF THE ORIGINAL ASSESSMENT PROCEEDINGS , WHEN THE LD AO FA ILED TO GRANT THIS RELIEF. THE FACT THAT THE ASSESSEE DID NOT SPECIFICALLY PUT FORWARD A CLAIM FOR THE RELIEF U/S 10(38) OF THE ACT IS TOTALLY BESIDE THE POINT IN VIEW OF THE OBLI GATORY PROVISIONS OF SECTION 10(38) OF THE ACT. IT WAS ALSO PLEADED THAT THE LD AO HAD N OT DISPUTED THE FACT THAT THE SUBJECT MENTIONED SHARES THAT WERE SOLD WERE HELD BY THE AS SESSEE FOR MORE THAN 12 MONTHS AND HENCE THE RESULTANT GAIN IS LONG TERM CAPITAL GAIN. HE HAS NOT DISPUTED THE FACT THAT STT WAS SUFFERED IN THE SAID TRANSFER OF SHARES. IT WAS STATED THAT THE COPIES OF CONTRACT NOTE, DEMAT STATEMENT SHOWING SHARES WITHDRAWN WITH RESPE CT TO SALE OF SHARES , LETTER FROM AXIS BANK (WHERE SHARES OF ORISSA SPONGE IRON & STE EL LTD WERE PLEDGED) SHOWING SALE OF SHARES WERE DULY FURNISHED BEFORE THE LD A O. 5. THE LD CITA GRANTED RELIEF TO THE ASSESSEE BY OB SERVING AS UNDER:- 8.3. I HAVE EXAMINED THE RIVAL SUBMISSION. THE ONLY ISSUE WHICH NEEDS ADJUDICATION IS WHETHER TO ALLOW THE CLAIM OF LONG-TERM CAPITAL GAI N TO BE TAXED AT NORMAL RATE BECAUSE THE APPELLANT AT PART-A OF IRT-V FOR A.Y. 2 009-10 HAD REFLECTED THE PROFIT OF RS. 3,37,52,643/- AS PROFIT ON SALE OF INVESTMENT INS TEAD OF PROFIT ON SALE OF INVESTMENT BEING SECURITIES CHARGEABLE TO STT. I AM OF THE VI EW THAT THE MANDATE OF THE AO IS LIMITED TO THE CLAIM MADE BY THE APPELLANT IN HIS R ETURN OF INCOME OR REVISED RETURN OF INCOME. IF A PARTICULAR CLAIM HAS NOT BEEN MADE BY THE APPELLANT THEN, IT CANNOT BE ALLOWED AT THE LEVEL OF ASSESSING OFFICER ALTHOUGH SUCH A CLAIM CAN BE CONSIDERED AT THE APPELLATE LEVEL. IN THE APPELLANTS CASE, I FIND TH AT A CLAIM OF PROFIT ON SALE OF INVESTMENT HAS ALREADY BEEN MADE BY THE APPELLANT IN THE ITR-V BUT INSTEAD OF CATEGORIZING IT UNDER PART-A-P&L 3F (PROFIT ON SALE OF INVESTMENT). THIS COULD JUST BE A CLERICAL ERROR BECAUSE 3G IN ITR-V. THE FACT REMAINS, HOWEVER, THA T AN AMOUNT OF LONG-TERM CAPITAL GAIN OF RS. 3,37,52,643/- DID ARISE ON THE SALE OF SHARES HELD BY THE APPELLANT COMPANY FOR MORE THAN A YEAR. THE SALE WAS CONDUCTED THROUG H AXIS BANK AND THE TRANSACTION, 5 ITA NO.1331/KOL/2014 M/S TRFI INVESTMENT PVT. LTD. A.YR.2009-10 5 HAS BEEN CERTIFIED BY IT THROUGH LETTER DATED 04.12 .2008. THE BROKER INVOLVED WAS RATILAL CHOKSI AND HIS BILL DATED 05.11.2008 REFLEC T THAT STT HAS BEEN DEDUCTED. THEREFORE, THERE IS NO REASON WHY THE APPELLANT SHO ULD NOT GET EXEMPTION U/S 10(38) OF THE I.T. ACT. ACCORDINGLY, I HOLD THAT GROUNDS NO. 2 & 3 OF ADDITIONAL GROUND OF APPEAL SHOULD BE ALLOWED. THE AO IS DIRECTED TO MAKE COMPU TATION ACCORDINGLY AS PER LAW. 6. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING THE CLAIM OF THE APPELLANT MADE U/S 10(38) IGNORING THE FACT THAT THE CLAIM MADE IN THE REVISED ITR FILED ON 10.01.2009, SHOWS IN POINT 3F OF PART A OF PROFIT AND LOSS ACCOUNT THAT PROFIT ON SALE OF INV ESTMENT BEING SECURITIES CHARGEABLE TO STT AS NIL WHILE THE AMOUNT OF RS. 3 ,37,52,643/- WAS SHOWN IN POINT 3G OF PART-A OF PROFIT AND LOSS ACCOUNT AS P ROFIT ON SALE OF OTHER INVESTMENT. II) AND THAT THE ASSESSEE CLAIMED CAPITAL GAIN AS NIL AS REFLECTED IN POINT 3 OF PART B-TI OF SCHEDULE CG (CAPITAL GAIN) OF THE REVI SED ITR. III) THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DE LETE OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD DR VEHEMENTLY RELIED ON THE ORDER OF THE LD AO. THE FACTS STATED HEREINABOVE REMAIN UND ISPUTED AND HENCE THE SAME ARE NOT REITERATED FOR THE SAKE OF BREVITY. IT IS NOT IN D ISPUTE THAT THE ASSESSEE HAD SOLD CERTAIN SHARES AND DERIVED GAINS OF RS 3,37,52,643/- . IT IS NOT IN DISPUTE THAT THE SAID SHARES WERE HELD FOR MORE THAN 12 MONTHS PRIOR TO THE DATE OF ITS SALE AND HENCE THE RESULTANT GAINS THEREON WOULD BE LONG TERM CAPITAL GAINS. IT IS NOT IN DISPUTE THAT THE SAID SALE OF SHARES HAD DULY SUFFERED STT AND HAD BEEN ROUTED THROUGH RECOGNIZED STOCK EXCHANGE. THE ONLY ERROR COMMITTED BY THE ASSESSEE WAS MENTIONING THE LONG TERM CAPITAL GAINS FIGURE IN THE WRONG COLUMN OF THE IT RETURN, WHICH HAD ADMITTEDLY TRIGGERED THIS DISPUTE. IN OUR CONSIDERED OPINION, THE ERROR COMMITTED BY THE ASSESSEE IS ONLY A CLERICAL ERROR FOR WHICH THE ASSESSEE CANNOT BE FASTENED WITH THIS HUGE TAX LIABILITY. WE FIND THAT THE LD CITA HAD DULY EXAMI NED THE ENTIRE DOCUMENTS IN THIS REGARD SUCH AS DEMAT STATEMENT, CONTRACT NOTES, BRO KER BILL , EVIDENCE FOR PAYMENT OF STT ETC. WE FIND THAT ARTICLE 265 OF THE INDIAN CO NSTITUTION STATES THAT NO TAX SHALL BE 6 ITA NO.1331/KOL/2014 M/S TRFI INVESTMENT PVT. LTD. A.YR.2009-10 6 COLLECTED OR LEVIED EXCEPT BY AN AUTHORITY OF LAW. THIS GOES TO PROVE, THAT THE GOVERNMENT IS EMPOWERED TO COLLECT TAX FROM THE CIT IZENS ONLY AS PER THE MANDATE PROVIDED IN THE LAW. IF THE STATUTE PROVIDES CERTA IN RELEIFS TO THE ASSESSEE, THE SAME SHOULD BE GRANTED TO THE ASSESSEE EVEN WITHOUT ANY CLAIM MADE THEREON BY THE ASSESSEE. IN THE INSTANT CASE, THE ASSESSEE HAD DULY MADE THI S CLAIM BY WAY OF A REVISED COMPUTATION IN THE ASSESSMENT PROCEEDINGS AND HAD M ENTIONED ALL THE DETAILS IN THE ITR , THOUGH REFLECTED IN THE WRONG COLUMN THEREON. TH E REVENUE CANNOT TAKE ADVANTAGE OF AN IGNORANCE OF AN ASSESSEE. THIS VIEW HAS BEEN EN DORSED BY THE CBDT VIDE ITS CIRCULAR NO. 14 (XL-35) DATED 11.4.1955 WHICH IS RE PRODUCED HEREUNDER FOR THE SAKE OF CONVENIENCE :- ADMINISTRATIVE INSTRUCTIONS FOR GUIDANCE OF INCOME- TAX OFFICERS ON MATTERS PERTAINING TO ASSESSMENT 1. THE BOARD HAVE ISSUED INSTRUCTIONS FROM TIME TO TI ME IN REGARD TO THE ATTITUDE WHICH THE OFFICERS OF THE DEPARTMENT SHOULD ADOPT IN DEAL ING WITH ASSESSEES IN MATTERS AFFECTING THEIR INTERESTS AND CONVENIENCE. IT APPEA RS THAT THESE INSTRUCTIONS ARE NOT BEING UNIFORMLY FOLLOWED. 2. COMPLAINTS ARE STILL BEING RECEIVED THAT WHILE INC OME-TAX OFFICERS ARE PROMPT IN MAKING ASSESSMENTS LIKELY TO RESULT INTO DEMANDS AN D IN EFFECTING THEIR RECOVERY, THEY ARE LETHARGIC AND INDIFFERENT IN GRANTING REFUNDS A ND GIVING RELIEFS DUE TO ASSESSEES UNDER THE ACT. DILATORINESS OR INDIFFE RENCE IN DEALING WITH REFUND CLAIMS (EITHER UNDER SECTION 48 OR DUE TO APPELLATE, REVIS IONAL, ETC., ORDERS) MUST BE COMPLETELY AVOIDED SO THAT THE PUBLIC MAY FEEL THAT THE GOVERN MENT ARE ACTUALLY PROMPT AND CAREFUL IN THE MATTER OF COLLECTING TAXES AND GRANT ING REFUNDS AND GIVING RELIEFS. (3) OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANT AGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ONE OF THEIR DUTIES TO ASSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIMING AND SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TA XPAYER WHERE PROCEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICATE THAT SOME REFUND O R RELIEF IS DUE TO HIM. THIS ATTITUDE WOULD, IN THE LONG RUN, BENEFIT THE DEPARTMENT FOR IT WOULD INSPIRE CONFIDENCE IN HIM THAT HE MAY BE SURE OF GETTING A SQUARE DEAL FROM T HE DEPARTMENT. ALTHOUGH, THEREFORE, THE RESPONSIBILITY FOR CLAIMING REFUNDS AND RELIEFS RESTS WITH ASSESSEE ON WHOM IT IS IMPOSED BY LAW, OFFICERS SHOULD (A) DRAW THEIR ATTENTION TO ANY REFUNDS OR RELIE FS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY HAVE OMITTED TO CLAIM FOR S OME REASON OR OTHER ; 7 ITA NO.1331/KOL/2014 M/S TRFI INVESTMENT PVT. LTD. A.YR.2009-10 7 (B) FREELY ADVISE THEM WHEN APPROACHED BY THEM A S TO THEIR RIGHTS AND LIABILITIES AND AS TO THE PROCEDURE TO BE ADOPTED FOR CLAIMING REFU NDS AND RELIEFS. 4. PUBLIC RELATION OFFICERS HAVE BEEN APPOINTED AT IM PORTANT CENTRES, BUT BY THE VERY NATURE OF THEIR DUTIES, THEIR FIELD OF ACTIVITY IS BOUND TO BE LIMITED. THE FOLLOWING EXAMPLES (WHICH ARE BY NO MEANS EXHAU STIVE) INDICATE THE ATTITUDE WHICH OFFICERS SHOULD ADOPT : (1) SECTION 17(1) OF THE 1922 ACT [SECTION 113 OF T HE 1961 ACT] - WHILE DEALING WITH THE ASSESSMENT OF A NON-RESIDENT ASSESSEE THE OFFICER S HOULD BRING TO HIS NOTICE THAT HE MAY EXERCISE THE OPTION TO PAY TAX ON HIS INDIAN INCOME WITH REFERENCE TO HIS TOTAL WORLD INCOME IF IT IS TO HIS ADVANTAGE. (2) SECTION 18(3), (3A), (3B) AND (3D) OF THE 1922 ACT [SECTIONS 193, 197(1), 195(1), 195(2) AND 194 OF THE 1961 ACT] - THE OFFICER SHOUL D IN EVERY APPROPRIATE CASE BRING TO THEASSESSEES NOTICE THE POSSIBILITY OF OBTAINING A CERTIFICATE AUTHORISING DEDUCTION OF INCOME-TAX AT A RATE LESS THAN THE MAXIMUM OR DEDUC TION OF SUPER TAX AT A RATE LOWER THAN THE FLAT RATE, AS THE CASE MAY BE. (3) SECTION 25(3) AND 25(4) OF THE 1922 ACT - THE M ANDATORY RELIEF ABOUT EXEMPTION FROM TAX MUST BE GRANTED WHETHER CLAIMED OR NOT ; T HE OTHER RELIEF ABOUT SUBSTITUTION, IF NOT TIME BARRED, MUST BE BROUGHT TO THE NOTICE OF A TAXPAYER. (4) SECTION 26A OF THE 1922 ACT [SECTIONS 184 TO 18 6 OF THE 1961 ACT] - THE BENEFIT TO BE OBTAINED BY REGISTRATION SHOULD BE EXPLAINED IN APP ROPRIATE CASES. WHERE AN APPLICATION FOR REGISTRATION PRESENTED BY A FIRM IS FOUND DEFECTIVE, THE OFFICER SHOULD POINT OUT THE DEFECT TO IT AND GIVE IT AN OPPORTUNI TY TO PRESENT A PROPER APPLICATION. (5) SECTION 33A OF THE 1922 ACT [SECTION 264 OF THE 1961 ACT] - CASES IN WHICH THE INCOME-TAX OFFICER OR THE ASSISTANT COMMISSIONER TH INKS THAT AN ASSESSMENT SHOULD BE REVISED, MUST BE BROUGHT TO THE NOTICE OF THE COMMI SSIONER OF INCOME-TAX. (6) SECTION 35 OF THE 1922 ACT [SECTIONS 154 AND 15 5 OF THE 1961 ACT] - MISTAKES SHOULD BE RECTIFIED AS SOON AS THEY ARE DISCOVERED WITHOUT WAITING FOR AN ASSESSEE TO POINT THEM OUT. (7) SECTION 60(2) OF THE 1922 ACT [SECTIONS 89(1) A ND 103 OF THE 1961 ACT] - CASES WHERE RELIEF CAN PROPERLY BE GIVEN UNDER THIS SUB-S ECTION SHOULD BE REPORTED TO THE BOARD. 5. WHILE OFFICERS SHOULD, WHEN REQUESTED, FREELY ADVI CE ASSESSEES THE WAY IN WHICH ENTRIES SHOULD BE MADE IN VARIOUS FORMS, THEY SHOUL D NOT THEMSELVES MAKE ANY IN THEM ON THEIR BEHALF. WHERE SUCH ADVICE IS GIVEN, IT SHO ULD BE CLEARLY EXPLAINED TO THEM THAT THEY ARE RESPONSIBLE FOR THE ENTRIES MADE IN ANY FO RM AND THAT THEY CANNOT BE ALLOWED TO PLEAD THAT THEY WERE MADE UNDER OFFICIAL INSTRUCTIO NS. THIS EQUALLY APPLIES TO THE PUBLIC RELATION OFFICERS. 6. THE INTENTION OF THIS CIRCULAR IS NOT THAT TAX DUE SHOULD NOT BE CHARGED OR THAT ANY FAVOUR SHOULD BE SHOWN TO ANYBODY IN THE MATTER OF ASSESSMENT, OR THAT WHERE INVESTIGATIONS ARE CALLED FOR, THEY SHOULD NOT BE M ADE. WHATEVER THE LEGITIMATE TAX IT MUST BE ASSESSED AND MUST BE COLLECTED. THE PURPOSE OF THIS CIRCULAR IS MERELY 8 ITA NO.1331/KOL/2014 M/S TRFI INVESTMENT PVT. LTD. A.YR.2009-10 8 TO EMPHASISE THAT WE SHOULD NOT TAKE ADVANTAGE OF A N ASSESSEES IGNORANCE TO COLLECT MORE TAX OUT OF HIM THAN IS LEGITIMATELY DUE FROM H IM. CIRCULAR : NO. 14(XL-35), DATED 11-4-1955. 7.1. WE FIND THAT THE LD CITA HAD RIGHTLY APPRECIAT ED THE FACTS OF THE CASE OF THE ASSESSEE TOGETHER WITH ITS RELATED DOCUMENTS AND HA D GRANTED RELIEF IN THE FORM OF CLAIM OF EXEMPTION U/S 10(38) OF THE ACT BY DUE APPRECIAT ION OF THE AFORESAID CIRCULAR. IT IS WELL SETTLED THAT THE CIRCULARS AND INSTRUCTIONS IS SUED BY THE CBDT ARE BINDING ON THE REVENUE . HENCE WE DO NOT FIND ANY INFIRMITY IN TH E ORDER OF THE LD CITA . ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 06.09.2017 SD/- SD/- [A.T. VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 06.09.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. DCIT, CIRCLE-4, KOLKATA, P-7, CHOWRINGHEE SQUARE , KOLKATA-700069 2. M/S TRFI INVESTMENT PVT. LTD., 12, LEE ROAD, GRO UND FLOOR, KOLKATA-700020 3. C.I.T(A)-IV, KOLKATA 4. C.I.T.- KOLKATA . 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S 9 ITA NO.1331/KOL/2014 M/S TRFI INVESTMENT PVT. LTD. A.YR.2009-10 9