ITO, Ward - 7(3), Kolkata, Kolkata V. M/s. Darvell Estates (India) Pvt. Ltd., Kolkata

ITA 1333/KOL/2011

• Counselvise Citation: 133323514 RSA 2011
• Duration Of Justice: 2 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2014
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 12-10-2011
• Court: TRIBUNAL
• Department Lawyers: PIJUSH MUKHERJEE LD JCITSR
• Assessee Lawyers: SOMNATH GHOSH D
• Keywords: Business income; Corroborative evidences; Deemed dividend
• Section: 68

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH: KOLKATA ( ) , 1 , BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SRI GEORGE MATHAN, JM $ / ITA NO. 1333/KOL/2011 A.Y 2007-08 I.T.O WARD 7(3), KOLKATA % % - VERSUS - . M/S. DARVELL ESTATES (INDIA) PVT. LTD PAN: AACCD 4386K ( ' / APPELLANT ) ( )*' / RESPONDENT ) ' / FOR THE APPELLANT/DEPARTMENT /SHRI PIJUSH MUKHERJEE, LD.JCIT/SR.DR )*' / FOR THE RESPONDENT/ASSESSEE: /SHRI SOMNATH GHOSH, ADVOCATE DHU MALATI GHOSH, LD.JCIT/SR.DR / 0 /DATE OF HEARING: 24-09-2014 / 0 /DATE OF PRONOUNCEMENT: 24-09-2014 / ORDER 1 , SHRI GEORGE MATHAN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), KOLKATA IN APPEAL NO. 301/CIT(A)-VIII/KOL/10-11 DATED 20/07/2011 FOR THE ASSESSMENT YEAR 2007-0 8. 2. SHRI. PIJUSH MUKHERJEE , LEARNED JCIT/SR.DR REPR ESENTED ON BEHALF OF THE REVENUE AND SHRI SOMNATH GHOSH, ADVOCATE, LEARNED AR REPRESE NTED ON BEHALF OF THE ASSESSEE. 3. IN THE REVENUES APPEAL, THE REVENUE HAS RAISE D FOLLOWING GROUNDS OF APPEAL:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. C.I.T (A)-VIII, KOLKATA HAS ERRED IN NOT CONSIDERIN G THE DEEMED DIVIDEND OF RS.49,09,049/- DISTRIBUTED FROM ACCUMULATED PROF ITS TO ITS ASSOCIATE COMPANIES. THEREFORE, THE DELETION OF THE ADDITION OF RS.49,09,049/- AS DEEMED DIVIDEND BY INVOCATION OF SECTION 2(22)(E) IS PERVERSE AND IS TOTALLY UNLAWFUL AND UNJUSTIFIABLE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.C.I.T(A)-VIII, KOLKATA HAS ERRED IN NOT CONSIDER ING THE TREATMENT OF HOUSE PROPERTY INCOME, IN SPITE OF FULFILLING THE C ONDITIONS OF SECTION 22 OF THE INCOME TAX ACT, 1961. HE HAS ALSO CHOSEN NEITH ER TO DISCUSS THE CASE- LAW/S REFERRED BY THE ASSESSING OFFICER NOR DID THE ONES RELY UPON BY THE ASSESSEE, THEREBY, MAKING THE DELETION PERVERSE, UN LAWFUL AND UNJUSTIFIED. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T (A)-VIII, KOLKATA HAS ERRED IN DELETING THE DISALLOWANCE OF RS. 2,93,583/- ON TECHNICAL GROUND AS HE HAS FAILED TO CONSIDER THE TREATMENT ITA NO. 1333/KOL/2011-B-AM M/S. DARVELL ESTATES (I) PVT. LTD 2 OF INCOME FROM HOUSE PROPERTY (AS DISCUSSED IN GROU ND NO.2), THEREBY, MAKING THE DELETION UNLAWFUL AND UNJUSTIFIED. 4 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-VIII, KOLKATA ERRED IN DELETING THE ADD ITION OF RS.23,501/- U/S. 68 OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF NON-FU RNISHING OF SUPPORTING EVIDENCES. THE LD. CIT(A)-VIII, KOLKATA IS SILENT IN HIS ORDER, AS TO HOW HE HAS REACHED THE CONCLUSION THAT THE IDENTITY, CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS O F LOAN TRANSACTION HAVE BEEN ESTABLISHED, THEREBY, MAKING THIS DELETION UNL AWFUL AND UNJUSTIFIED. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A)-VIII, KOLKATA ERRED IN DELETING THE ADDITION OF RS.7,272/- U/S. 35D OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF NON-FURNI SHING OF SUPPORTING EVIDENCES. THE LD.CIT(A)-VIII, KOLKATA IN HIS ORDE R HAS NEITHER STATED NOR DISCUSSED, ON WHAT EVIDENCES HE HAS CONCLUDED THAT THE AMOUNT OF EXPENDITURE DISALLOWED WAS IN CONFORMITY WITH SECTI ON 35D OF THE ACT. THEREFORE, THIS DELETION IS PERVERSE, UNLAWFUL AND UNJUSTIFIED. 4. IN RESPECT OF GROUND NO.1, IT WAS SUBMITTED BY S HRI PIJUSH MUKHERJEE, LEARNED JCIT/SR.DR THAT THE ISSUE WAS AGAINST THE ACTION O F THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN DELETING THE ADDITION MADE BY THE ASS ESSING OFFICER REPRESENTING THE DEEMED DIVIDEND INCOME ASSESSED IN THE HANDS OF THE ASSE SSEE. IT WAS THE SUBMISSION BY HIM THAT THE ASSESSEE COMPANY HAD RECEIVED AN AMOUNT OF RS.36,90 ,476/- AND RS.32,37,886/ FROM M/S. DARVELL INVESTMENT & LEASING (INDIA) PVT. LTD AND M/S. DARVELL INDIA PVT. LTD RESPECTIVELY, BOTH SISTER CONCERNS OF THE ASSESSEE. IT WAS THE S UBMISSION BY HIM THAT SHRI VINAY MALHOTRA AND SMT. RAMA MALHOTRA HELD 50% AND 30% SHARES RESP ECTIVELY BEING SHAREHOLDERS IN THE ASSESSEE COMPANY. SHRI VINAY MALHOTRA HELD 20.72 % AND 33.87% SHARE OF M/S. DARVELL INVESTMENTS & LEASING (I) P.LTD AND M/S. DARVELL (I) P.LTD. RESPECTIVELY. IT WAS THE SUBMISSION BY HIM THAT CONSEQUENTLY SHRI VINAY M ALHOTRA HELD CONTROLLING INTEREST IN THESE THREE COMPANIES. DEEMED DIVIDEND WAS ASSESSABLE I N THE HANDS OF THE ASSESSEE COMPANY. IT WAS THE SUBMISSION BY HIM THAT THE LEARNED COMMISSI ONER OF INCOME-TAX (APPEALS) HAS DELETED THE ADDITION ON THE GROUND THAT THERE WAS NO STATUTORY ELIGIBILITY FOR DISTRIBUTION OF DEEMED DIVIDEND IN RESPECT OF M/S. DARVELL INVESTME NTS & LEASING (I) P.LTD AND M/S. DARVELL (I) P.LTD. IT WAS THE SUBMISSION THAT FINDING OF T HE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ON THIS ISSUE WAS LIABLE TO BE REVERSED. 5. IN REPLY, SHRI SOMNATH GHOSH, ADVOCATE, THE LE ARNED AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE ISSUE WAS SQUARELY CO VERED BY THE DECISION OF THE HONBLE JURISDICTIONAL CALCUTTA HIGH COURT IN THE CASE OF CIT, KOL-III, KOLKATA VS. M/S. BALJIT SECURITIES PVT. LTD IN GA NO.881 OF 2013/ ITAT NO. 74 OF 2013 /13 DATED 24 TH JUNE 2013 AS ITA NO. 1333/KOL/2011-B-AM M/S. DARVELL ESTATES (I) PVT. LTD 3 ALSO THE DECISION OF THE HONBLE SPECIAL BENCH, IT AT MUMBAI IN THE CASE OF ACIT VS. BHAUMIK COLOURS (P) LTD REPORTED IN (2009) 313 ITR (AT) 146 (MUM.) (SB) . IT WAS THE SUBMISSION BY HIM THAT THE ASSESSEE COMPANY DID NOT HAVE ANY CONTROLLING INTEREST EITHER IN M/S. DARVELL INVESTMENTS & LEASING (I) P.LTD OR M /S. DARVELL (I) P.LTD. IT WAS THE SUBMISSION THAT THE ASSESSEE WAS NOT A SHAREHOLDER. CONSEQUENTLY, IN VIEW OF THE PROVISIONS OF SECTION 2(22)(E) OF THE I.T ACT, 1961 THE ASSES SEE COMPANY COULD NOT BE HELD LIABLE FOR ANY ADDITION IN RESPECT OF DEEMED DIVIDEND. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF BHAUMIK COLO URS (P) LTD (REFERRED TO SUPRA) SHOWS THAT UNLESS THE ASSESSEE IS A SHAREHOLDER, THE ASSESSE E CANNOT BE HELD TO BE LIABLE FOR INVOCATION OF PROVISIONS OF SECTION 2(22)(E) OF THE ACT. A P ERUSAL OF THE DECISION OF HONBLE JURISDICTIONAL CALCUTTA HIGH COURT IN THE CASE OF B ALJIT SECURITIES PVT. LTD (REFERRED TO SUPRA) SHOWS THAT THE HONBLE JURISDICTIONAL HIGH COURT O F CALCUTTA HAS CATEGORICALLY HELD THAT THE CONDITIONS PRECEDENT FOR ATTRACTING SECTION 2(22) (E) ARE THAT THE COMPANY MAKING THE PAYMENT SHOULD BE A CLOSELY HELD COMPANY, IT SHO ULD HAVE ACCUMULATED PROFITS AS ON THE DATE OF PAYMENT OF THE LOAN AND/ OR ADVANCE; THE PAYMENT SHOULD HAVE BEEN MADE FROM OUT OF SUCH PROFITS TO A SHARE HOLDER HOLDING AT LEAST 10 PERCENT OF THE VOTING POWER IN THE COMPANY MAKING THE PAYMENT OR ALTERNATIVELY TO A CO MPANY IN WHICH THE SHAREHOLDER HAS AT LEAST 20 PERCENT VOTING POWER. IN THE INSTANT CASE , THE RESPONDENT ASSESSEE COMPANY IS NOT A SHAREHOLDER IN EITHER M/S. DARVELL INVESTMENTS & LE ASING (I) P.LTD OR M/S. DARVELL (I) P.LTD. AS IS EVIDENT FROM PARA 5 OF THE ASSESSMENT ORDER. THE DEEMED DIVIDEND BEING ASSESSABLE IN THE HANDS OF THE SHAREHOLDER AND THE ASSESSEE HERE IN BEING NOT A SHAREHOLDER, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONA L HIGH COURT OF CALCUTTA IN THE CASE OF BALJIT SECURITIES PVT. LTD (REFERRED TO SUPRA) AS A LSO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. UNIVERSAL MEDICARE PV T. LTD REPORTED IN (2010) 324 ITR 263 (BOM) AS ALSO THE DECISION OF THE HONBLE DELHI H IGH COURT IN THE CASE OF CIT VS. ANKITECH P. LTD REPORTED IN (2012) 340 ITR 14 (DEL), THE FIN DING OF THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ON THIS ISSUE STANDS CONFIRMED. THE REVENUE HAS ALSO NOT DISLODGED THE FINDINGS ON MERITS GIVEN BY THE LEARNED COMMISSION ER OF INCOME-TAX (APPEALS). THIS GROUND OF REVENUES APPEAL IS DISMISSED. 7. IN RESPECT OF GROUND NOS. 2 AND 3, IT WAS SUBMI TTED BY SHRI PIJUSH MUKHERJEE, LEARNED JCIT/SR.DR THAT THE ISSUE WAS AGAINST THE ACTION O F THE LEARNED COMMISSIONER OF INCOME-TAX ITA NO. 1333/KOL/2011-B-AM M/S. DARVELL ESTATES (I) PVT. LTD 4 (APPEALS) IN TREATING THE RENTAL INCOME ASSESSED B Y THE ASSESSING OFFICER IN RESPECT OF LEASE RENTAL RECEIPTS FROM ITS PREMISES AT 8C, ALIPORE ROAD, KOLKATA-700 027 AS INCOME FROM HOUSE PROPERTY AS INCOME UNDER THE HEAD BUSINES S. IT WAS THE SUBMISSION BY HIM THAT THE ASSESSEE HAD RECEIVED RENT. THE SAME WAS LIABLE TO BE ASSESSED ONLY UNDER THE HEAD INCOME FROM HOUSE PROPERTY. IT WAS THE SUBMISSION BY H IM THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAD HELD THAT LICENCE FEE REC EIPTS WERE LIABLE TO BE TREATED ONLY AS BUSINESS RECEIPTS IN PLACE OF INCOME FROM HOUSE PR OPERTY. IT WAS THE SUBMISSION BY HIM THAT THE ASSESSEE WAS RECEIVING RS.1.25 LAKH PER MONTH AS RENTAL INCOME FROM THE PREMISES, WHICH WAS RENTED OUT. IT WAS THE SUBMISSION BY HIM THAT THE SAID AMOUNT OF RS.1.25 LAKH CONSISTED OF LICENSE FEE OF RS.40,000/- P.M, SER VICE CHARGES, MAINTENANCE AND UPKEEP RS.57,000/- P.M AND SECURITY CHARGES RS.28,000/- P .M. IT WAS THE SUBMISSION THAT TDS HAS BEEN DEDUCTED ON THE FULL AMOUNT OF RS.1.25 LAKH U/S. 195 I. CONSEQUENTLY, THE SAME WAS LIABLE TO BE TREATED ONLY AS RENTAL INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 8. IN REPLY, SHRI SOMNATH GHOSH, ADVOCATE, THE LEA RNED AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE SPIRIT AND SUBSTANCE OF THE TRANSACTION CANNOT BE OVERLOOKED. IT WAS THE SUBMISSION BY HIM THAT THE ASSESSEE WAS IN THE REAL ESTATE BUSINESS AND THE PROPERTY HAD BEEN PUT TO USE FOR THE BUSINESS OF THE ASSES SEE AS SAID PROPERTY COULD NOT BE SOLD. IT WAS THE SUBMISSION THAT THE FACT THAT THE ASSESSEE HAS PROVIDED SERVICES AND OTHER FACILITIES I.E. SECURITY AND MAINTENANCE ETC. CLEARLY SHOW THAT T HE INTENTION OF THE ASSESSEE ITSELF WAS BUSINESS. IT WAS THE SUBMISSION THAT THE ORDER OF T HE LEARNED COMMISSIONER OF INCOME- TAX(APPEALS) ON THIS ISSUE WAS LIABLE TO BE UPHELD . 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE LICENSE AGREEMENT OF THE ASSESSEE CLEARLY SHOWS THAT THE ASSESSEE HAS PERMIT TED M/S. VODAFONE LTD TO USE THE SAID PREMISES ON A MONTH TO MONTH LICENSE FEE. A PERUS AL OF THE LICENSE AGREEMENT SHOWS THAT THE LICENSE FEE IS CHARGED SPECIFICALLY IN RESPECT OF SCHEDULE PROPERTY BEING 8C, ALIPORE ROAD, KOLKATA-27. A PERUSAL OF THE LICENSE AGREEMENT ALS O SHOWS THAT THIS AGREEMENT ALSO TAKES INTO CONSIDERATION THE ISSUE OF PROVIDING SERVICES TO THE LICENSEE. THE ASSESSING OFFICER HAS GIVEN THE BREAK UP OF THE LICENSE FEE AS ALSO THE S ERVICE CHARGES, MAINTENANCE AND UPKEEP AND SECURITY CHARGES. ADMITTEDLY, THE SERVICE CHARGES, MAINTENANCE AND UPKEEP AND SECURITY CHARGES CANNOT BE TREATED AS RENTAL INCOME. THESE ARE CLEARLY ASSESSABLE UNDER THE HEADINCOME FROM OTHER SOURCES. THIS IS BECAUSE T HE BUSINESS OF THE ASSESSEE IS NOT PROVIDING FOR SERVICES AND OTHER FACILITIES I.E. SE CURITY AND MAINTENANCE ETC. THIS IS AN ITA NO. 1333/KOL/2011-B-AM M/S. DARVELL ESTATES (I) PVT. LTD 5 EXPENDITURE INCURRED BY THE ASSESSEE, WHICH IS REI MBURSABLE BY THE LINCESEE/TENANTS. HOWEVER, COMING TO THE ISSUE OF LICENSE FEE BEING RS.40,000/- P.M, CLEARLY THIS IS RENT OF THE HOUSE PROPERTY ONLY. THE ARGUMENT OF THE ASSESSEE IS THAT THE ASSESSEE IS A COMPANY BEING ENGAGED IN THE REAL ESTATE, CANNOT BE CONSIDERED F OR THE PURPOSE OF INCOME-TAX PROVISION, BECAUSE THOUGH THE ASSESSEE IS A COMPANY AND IN TH E BUSINESS OF REAL ESTATE, ITS INCOME IS TO BE ASSESSED UNDER THE VARIOUS HEADS PROVIDED UNDER THE INCOME-TAX ACT, 1961. THE LICENSE FEE CLEARLY IN RESPECT OF SAID PREMISES THOUGH IS UNDER THE BUSINESS ACTIVITY OF THE ASSESSEE WOULD COMPULSORILY BE ASSESSED ONLY UNDER THE HE ADINCOME FROM HOUSE PROPERTY. IN THE CIRCUMSTANCES, THE ORDER OF THE OF THE LEARNED CO MMISSIONER OF INCOME-TAX(APPEALS) ON THIS ISSUE STANDS MODIFIED AND THE ASSESSING OFFICER IS DIRECTED TO ASSESS THE LICENSE FEE PORTION AT RS. 40,000/- P.M UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE BALANCE BEING SERVICE CHARGES, MAINTENANCE AND UPKEEP AND SECURITY CHARGE S AS RECOVERED BY THE ASSESSEE IS LIABLE TO BE ASSESSED ONLY UNDER THE HEAD INCOME FROM OTH ER SOURCES. ADMITTEDLY, IF THERE IS ANY LOSS UNDER THE HEAD INCOME FROM OTHER SOURCES, THE SAME WOULD BE AVAILABLE FOR SET OFF AGAINST THE OTHER HEADS OF INCOME AS PROVIDED UND ER THE I.T ACT 1961. IN THE CIRCUMSTANCES, THESE GROUNDS OF REVENUES APPEAL STAND PARTLY A LLOWED. 10. IN RESPECT OF GROUND NO. 4, IT WAS SUBMITTED B Y SHRI PIJUSH MUKHERJEE, LEARNED JCIT/SR.DR THAT THE ISSUE WAS AGAINST THE ACTION O F THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN DELETING THE ADDITION OF RS.23,501/- REPRESENTING CASH CREDIT U/S 68 OF THE ACT IN THE NAME OF RAMA MALHOTRA, WHO IS ONE OF THE DIR ECTOR OF M/S. BAND BOX. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAD MADE THE ADDITION AS THE ASSESSEE HAD NOT PROVED THE CASH CREDIT. IT WAS THE SUBMISSION THAT THE LE ARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAD DELETED THE ADDITION BY HOLDING THAT THE IDENT ITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION HAS NOT BEEN ESTABLISHED. HE HAS VEHEME NTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. 11 IN REPLY, THE LEARNED AR DREW OUR ATTENTION TO P AGE 72-73 OF THE PAPER BOOK, WHICH ARE THE COPIES OF ACKNOWLEDGEMENT OF I.T RETURN AND BA LANCE SHEET AS ON 31-03-2007 OF RAMA MALHOTRA AND M/S. BAND BOX, WHEREIN IT HAS BEEN CLE ARLY SHOWN THAT THE LOAN GIVEN TO THE ASSESSEE BEING M/S. DARWELL ESTATE P.LTD. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS I T IS NOTICED THAT THE ADDITION UNDER THE HEAD ITSELF IS VERY SMALL AND THE ASSESSEE HAS PROD UCED THE BALANCE SHEET, P & L ACCOUNT AND THE COPY OF RETURN FILED BY SMT. RAMA MALHOTRA AND M/S. BAND BOX AND THE LOAN GIVEN TO THE ITA NO. 1333/KOL/2011-B-AM M/S. DARVELL ESTATES (I) PVT. LTD 6 ASSESSEE HAS BEEN SPECIFICALLY SHOWN IN SUCH BALANC E SHEET, WE ARE OF THE VIEW THAT FINDING OF THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ON THIS ISSUE IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. WE UPHOLD THE SAME. THIS GROUND OF REVENUES APPEAL STANDS DISMISSED. 13. IN RESPECT OF GROUND NO.5, IT WAS SUBMITTED BY SHRI PIJUSH MUKHERJEE, LEARNED JCIT/SR.DR THAT THE ISSUE WAS AGAINST THE ACTION O F THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN DELETING THE ADDITION OF RS.7,272/- M ADE U/S. 35D OF THE I.T ACT, 1961 HE HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER. 14. IN REPLY, SHRI SOMNATH GHOSH, ADVOCATE, THE L EARNED AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE SAID AMOUNT REPRESENT ING PRELIMINARY EXPENSES, WHICH HAS BEEN DISALLOWED BY THE ASSESSING OFFICER. HE DREW OUR AT TENTION TO PARA 13 OF THE ASSESSMENT ORDER. IT WAS THE SUBMISSION THAT THE AMOUNT OF RS.46,951/ - BEING A PRELIMINARY EXPENSE HAD BEEN DISALLOWED BY THE ASSESSEE IN ITS COMPUTATION OF TO TAL INCOME. . HE FURTHER DREW OUR ATTENTION TO PAGE 95 OF THE PAPER BOOK, WHICH IS A COPY OF T HE COMPUTATION OF TAXABLE INCOME, WHEREIN THE ASSESSEE HAS ADDED BACK THE PRELIMINARY EXPENS ES OF RS. 46,951/- AND CLAIMED 1/5 TH I.E RS. 9,390/-. IT WAS THE SUBMISSION THAT THE AMOUNT OF RS.46,951/- HAS NEVER BEEN CLAIMED AT ALL AND NO DISALLOWANCE CAN BE MADE. 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A P ERUSAL OF THE COMPUTATION OF TAXABLE INCOME SHOWS THAT THE ASSESSEE HAS NOT CLAIMED RS .46,961/- BUT CLAIMED ONLY PRELIMINARY EXPENSE OF RS. 9,390/-. CONSEQUENTLY, WE ARE OF THE VIEW THAT FINDING OF THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) IN DELETING TH E SAID ADDITION IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. WE UPHOLD THE S AME . THIS GROUND OF REVENUE IS DISMISSED. 16. IN THE RESULT, THE REVENUES APPEAL IN ITA NO. 1333/KOL/2011 FOR THE ASSESSMENT YEAR 2007-08 IS PARTLY ALLOWED AS STATED ABOVE. 4 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT 24/9/ 2014 SD/- SD/- ( , ) (SHAMIM YAHYA, ACCOUNTANT MEMBER) ( 1 , ) (GEORGE MATHAN, JUDICIAL MEMBER) ( (( ( 0 0 0 0 ) )) ) DATE 24/9/14 ITA NO. 1333/KOL/2011-B-AM M/S. DARVELL ESTATES (I) PVT. LTD 7 / )7 87 / COPY OF THE ORDER FORWARDED TO: 1. . ' / THE APPELLANT : ITO W 7(3), P-7 CHOWRINGHEE SQ R .NO.17, 5 TH FL., KOL- 69. . 2 )*' / THE RESPONDENT- M/S. DARVELL ESTATES (INDIA) PV T. LTD. 9-1, KAILASH 35/1, CHOWRINGHEE ROAD, KOL-71 AND 8C, ALIPORE ROAD, KOLK ATA-27 3. 4. . / THE CIT, ( )/ THE CIT(A) 5 . ) / DR, KOLKATA BENCH 6 . GUARD FILE . *7 )/ TRUE COPY, / BY ORDER, / ASSTT REGIST RAR