Shri Munir Madhukar Thakore, Ahmedabad V. The Income tax Officer,Ward-1(2), Ahmedabad

ITA 1359/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6802 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 17-03-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 28-04-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: M V SHAH; S N SOPARKAR
• Keywords: Sale consideration of property below Jantri Value; Value adopted by valuation officer; Business income; Opportunity of being heard; Transactions in derivatives; Cost of acquisition; Fair market value; Set aside
• Section: 271(1)(c); 50C; 234B; 43(5); 143(1); 69A; 54; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI G.D. AGRAWAL, V.P. AND HON'BLE SHRI T.K. SHARMA, J.M .) I.T.A. NO. 1359/AHD./2009 ASSESSMENT YEAR : 2004-2005 SHRI MUNIR MADHUKAR THAKORE , AHMEDABAD (APPELLANT) ( PAN : ABDPT 7477L) VS.- ITO, WARD-1(2), AHMEDABAD (RESPONDENT) APPELLANT BY : S/SHRI S.N.SOPARKA R & M.V.SHAH, D.R. RESPONDENT BY : SHRI R.K.DHANESTA, A .R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 12-02-2009 OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-VI, AHM EDABAD FOR THE ASSESSMENT YEAR 2004-05. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER APPEAL, HE FILED THE RETURN OF INCOME DE CLARING TOTAL INCOME OF RS.3,170/-. THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTI ON 143(1) ON 21.12.2006 AT A TOTAL INCOME OF RS.33,69,054/-. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER MADE THE FOLLOWING ADDITIONS: I) ADDITION ON ACCOUNT OF UNACCOUNTED/UNEXPLAINE D MONEY RECEIVED ON SALE OF PROPERTY UNDER SECTION 69A. RS.32,58,371/- II) DISALLOWANCE OF CLAIM UNDER SECTION 54 III) TREATING THE INCOME/LOSS OF RS.76,173/- FROM FUTURE AND OPTION (F&O) TRANSACTIONS IN SHARES AS SPECULATIV E AND NOT BUSINESS INCOME/LOSS IV) DISALLOWANCE OF RS.19,331/- CLAIMED AS PORT FO LIO MANAGEMENT FEE V) DISALLOWANCE OF RS.12,010/- (RS.3,000/- LEGAL F EE + RS.9,010/- BANK CHARGES) CLAIMED BY THE ASSESSEE FROM EARNING OF INCOME FROM OTHER SOURCES. VI) LEVY OF INTEREST UNDER SECTIONS 234B AND 234C. ITA NO.1359/AHD/2009 2 3. ON APPEAL, IN THE IMPUGNED ORDER, THE LEARNED CO MMISSIONER OF INCOME TAX (APPEALS), CONFIRMED ALL THE AFORESAID ADDITIONS/ D ISALLOWANCES INCLUDING LEVY OF INTEREST UNDER SECTIONS 234B AND 234C OF THE I.T. ACT, 1961. 3.1 AGGRIEVED WITH THE ORDER OF THE LEARNED COMMISS IONER OF INCOME TAX(APPEALS), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL ON TH E FOLLOWING GROUNDS: 1. LD. CIT (A) HAS ERRED IN CONFIRMING ADDITION OF RS . 32,58,371/-MADE BY AO AS UNACCOUNTED / UNEXPLAINED MONEY RECEIVED ON SALE OF THE PROPERTY U/S 69A OF THE ACT. LD. CIT (A) OUGHT TO HAVE ACCEPTED THE SALE CO NSIDERATION OF THE PROPERTY AS PER THE REPORT OF THE GOVERNMENT APPROVED VALUER RA THER THAN THE NOTIONAL VALUE ADOPTED BY THE STAMP AUTHORITY FOR THE PURPOSE OF S TAMP DUTY ONLY AND OUGHT TO HAVE DELETED THE ADDITION MADE ON CONJECTURES, SURM ISES AND WITHOUT ANY EVIDENCE BY AO U/S 69A OF THE ACT. 2. THE ID. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ACTION OF AO IN DISALLOWING THE CLAIM OF DEDUCTION U/S 54 OF THE AC T IN RESPECT OF THE PURCHASE OF NEW RESIDENTIAL PROPERTY. BOTH THE LOWER AUTHORITIE S HAVE FAILED TO APPRECIATE THE FACT THAT THE NEW RESIDENTIAL PROPERTY WAS NOT CONS TRUCTED BUT PURCHASED BY THE APPELLANT AND HENCE THE CLAIM OF DEDUCTION U/S 54 O F THE ACT OUGHT TO HAVE BEEN ALLOWED AGAINST THE SALE OF PROPERTY. 3. THE ID. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CO NFIRMING THE ACTION OF AO IN TREATING INCOME/LOSS OF RS. 76, 173/- FROM FUTURE & OPTIONS TRANSACTION AS SPECULATIVE AND NOT BUSINESS INCOME/LOSS. LD. CIT ( A) OUGHT TO HAVE CONSIDERED AMENDMENT MADE IN CLAUSE (D) OF SEC. 43(5) OF THE A CT BEING CLARIFICATORY AND OUGHT TO HAVE TREATED THE LOSS FROM F & O TRANSACT IONS AS LOSS FROM BUSINESS AND ALLOWED THE SAME TO BE SET OFF AGAINST OTHER INCOME . 4. THE LD. CTT(A) HAS FURTHER ERRED IN LAW AND ON FACT S IN CONFIRMING THE DISALLOWANCE MADE BY AO OF RS. 19, 331/- CLAIMED A S PORTFOLIO MANAGEMENT FEES BY THE APPELLANT. LD. CIT (A) HAS FAILED TO APPRECI ATE THAT THE PORTFOLIO MANAGEMENT FEES PAID ARE LEGITIMATE BUSINESS EXPENS ES INCURRED IN RESPECT OF F & O TRANSACTIONS THAT ARE BUSINESS TRANSACTIONS AND OUGHT TO HAVE ALLOWED THE SAME U/S 37 OF THE ACT. 5. LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN CONFIR MING DISALLOWANCE OF DEDUCTION OF RS. 12,010/- (RS. 3,000/- LEGAL FEES + RS. 9,010 /- BANK CHARGES) MADE BY AO WITHOUT APPRECIATING THE FACT THAT THE EXPENSES INC URRED ARE CLAIMED AGAINST EARNING OF INCOME FROM OTHER SOURCES AND OUGHT TO H AVE BEEN ALLOWED U/$ 57 OF THE ACT 6. LEVY OF INTEREST UNDER SECTION 234B & 234C OF THE A CT IS NOT JUSTIFIED. 7. INITIATION OF PENALTY U/S 271(1)(C) OF THE ACT IS N OT JUSTIFIED. ITA NO.1359/AHD/2009 3 4. THE FACTS RELATING TO CONTROVERSY INVOLVED IN GR OUND NO.1 ARE THAT DURING THE PREVIOUS YEAR, RELEVANT TO THE ASSESSMENT YEAR UNDE R APPEAL, THE ASSESSEE SOLD HIS RESIDENTIAL HOUSE KNOWN AS PARAG AT RS.47,80,001/ -. THE ASSESSING OFFICER MADE ENQUIRY UNDER SECTION 50C OF THE I.T. ACT AND ASCER TAINED THAT STAMP VALUATION AUTHORITY HAS ADOPTED THE VALUE OF THE AFORESAID RESIDENTIAL PROPERTY KNOWN AS PARAG AT RS.80,38,372/-. THE A.O. ACCORDINGLY ASKED THE ASSE SSEE TO CLARIFY WHY IT SHOULD NOT BE SUBSTITUTED IN PLACE OF RS.47,80,001/-. 4.1 BEFORE THE ASSESSING OFFICER, THE ASSESSEE SUBM ITTED THAT THE VALUE ADOPTED BY THE STAMP DUTY AUTHORITY EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY DUE TO THE FOLLOWING REASONS: I) PROPERTY IS WITH IN THE VICINITY OF SLUM AREA , II) PROPERTY IS SITUATED AT LOWER LEVEL, III) THERE IS EXTREME WATER LOGGING PROBLEM INCLUD ING OVERFLOW OF DRAINAGE ETC. IV) PROPERTY IS SITUATED ADJOINING THE RAILWAY LIN E. IT WAS ALSO POINTED OUT THAT THE AFORESAID FACTORS ARE ALREADY MENTIONED IN THE AGREEMENT OF SALE AS WELL AS APPROVED VALUERS REPORT. THE AS SESSEE ALSO FILED THE REPORT OF THE APPROVED VALUER MR. P.S.RANGWALA INDICATING COMPARA TIVE SALE INSTANCES OF NEARBY PROPERTIES TO ESTABLISH THAT CONSIDERATION OF RS.47 ,80,001/- RECEIVED WAS ACCORDING TO PREVAILING MARKET RATE. IT WAS FURTHER CONTENDED TH AT AS PER THE TERMS OF SALE, STAMP DUTY, REGISTRATION CHARGES, ETC. WERE TO BE PAID BY THE P URCHASER AND NOT BY THE ASSESSEE. 4.2 THE ASSESSING OFFICER REJECTED ALL THE AFORESAI D CONTENTIONS AND CAME TO THE CONCLUSION AS UNDER: AS PER PROVISION OF SECTION 50C OF THE INCOME TAX A CT, THE FULL VALUE OF CONSIDERATION AS DETERMINED BY THE AUTHORITY OF TH E STATE GOVERNMENT FOR THE PURPOSE OF STAMP DUTY IS TO BE ADOPTED FOR THE PUR POSE OF COMPUTING LONG TERM CAPITAL GAIN. HOWEVER HE MADE ADDITION OF RS.3258371/- (8038372 4780001) U/S.69A AS ON MONEY RECEIVED BY THE APPELLANT NOT REFLECTED IN T HE BOOKS. 4.3 ON THE BASIS OF ABOVE, THE ASSESSING OFFICER MA DE ADDITION OF RS.32,58,371/- UNDER SECTION 69A OF THE I.T. ACT, 1961. 5. AGAINST THE ABOVE, THE ASSESSEE PREFERRED AN APP EAL BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WHEREIN THE ASS ESSEE HAS FURNISHED THE STATEMENT ITA NO.1359/AHD/2009 4 OF FACTS. IN THE STATEMENT OF FACTS, THE ASSESSEE N ARRATED ALL THE AFORESAID FACTS AND IN PARA 1.11 OF THE STATEMENTS OF FACTS FURNISHED BEFORE TH E LEARNED COMMISSIONER OF INCOME TAX(APPEALS), IT WAS CONTENDED THAT EVEN IF THE VAL UE OF STAMP DUTY IS SUBSTITUTED UNDER SECTION 50C, THE WORKING OF CAPITAL GAIN WILL BE N IL AS UNDER: VALUE ADOPTED BY STAMP AUTHORITY 8038372 LESS: EXPENSES WHOLLY & EXCLUSIVELY IN CONNECTION WITH (-) 137268 TRANSFER 7901104 LESS: INDEXED COST OF PROPERTY 5718050 2183054 LESS: UNABSORBED LONG TERM LOSS OF A.Y. 2001-02 (-) 177237 2005817 LESS: DEDUCTION U/S.54 : PURCHASE OF NEW RESIDENTIAL HOUSE AT AMRASHIRISH BUNGLOW 4039443 LONG TERM CAPITAL GAIN NI L 5.1 AFTER CONSIDERING THE ABOVE FACTS, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) VIDE LETTER DATED 4.4.2001 DIRECTED TH E AO TO REFER THE MATTER TO DVO IN TERMS OF SUB-SECTION (2) OF SECTION 50C AND SEND TH E REPORT ALONG WITH COMMENTS BY 16.05.2007. IN RESPONSE TO THIS, THE ASSESSING OFFI CER SENT THE REMAND REPORT VIDE LETTER DATED 18.06.2007 ENCLOSING THEREWITH VALUATION REPO RT OF DVO WHO VALUED THE PROPERTY IN QUESTION AT RS.99,89,000/-. IN THE REMAND REPORT , THE ASSESSING OFFICER ALSO CALCULATED THE GAIN AT RS.65,96,842/-. IN THIS VALUATION, THE ASSESSING OFFICER HAS TAKEN THE COST OF ACQUISITION, AS PER VALUATION BY DVO AT RS.32,54,89 0/-. THE WORKING OF GAIN BY THE ASSESSING OFFICER IS AS UNDER: VALUE OF PROPERTY AS PER VALUATION BY DVO, AHMEDAB AD RS.9989000 LESS: EXPENSES ON TRANSFER OF PROPERTY ADVERTISEMENT EXPENSES RS.3,728 LEGAL FEES RS.70,540 DALALI EXPENSES RS.63,000 RS. 1,37,268 RS.98,51,732 LESS: INDEXED COST OF ACQUISITION COST PRICE AS ON 1.4.1981 IS TAKEN AS PER VALUATION BY DVO 7,03,000 X 463 100 RS.32,54,890 GAIN RS.65,96,842 ITA NO.1359/AHD/2009 5 5.2 THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) CALLED THE ASSESSEES COMMENTS ON THE REMAND REPORT . THE ASSESSEE REQUES TED THAT THE LONG TERM CAPITAL GAIN WORKS OUT TO NIL, EVEN AFTER TAKING INTO ACCOUNT TH E VALUE ADOPTED BY STAMP DUTY AUTHORITY AT RS.80,38,372/- AS UNDER: VALUE ADOPTED BY STAMP AUTHORITY FOR LAND TOGETHE R WITH RESIDENTIAL BUNGALOW 80,38,372 LESS: EXPENSES WHOLLY AND EXCLUSIVELY IN CONNECTI ON WITH TRANSFER (KINDLY REFER STATEMENT OF INCOME) (-) 1,37,268 79,01,604 LESS: INDEXED COST OF LAND TOGETHER WITH RESIDENTIAL BUNGALOW (KINDLY REFER STATEMENT 57 ,18,050 OF INCOME) 21,83,554 LESS: DEDUCTION U/S.54 PURCHASE OF NEW RESIDENTIAL HOUSE 40,39,447 LONG TERM CAPITAL GAIN RS. NIL . 5.3 AFTER CONSIDERING THE ABOVE, IN THE IMPUGNED OR DER, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) OBSERVED THAT AS PER DEPARTMENT AL VALUATION OFFICER, AHMEDABAD, THE FAIR MARKET VALUE OF THE PROPERTY IN QUESTION A S ON 01.04.1981 IS DETERMINED BY DVO AT RS.98,51,732/-. ON THIS BASIS, THE LEARNED COMMI SSIONER OF INCOME TAX(APPEALS) HELD THAT DIFFERENCE OF RS.80,38,372/- - RS.47,80,001/- (I.E. RS.32,58,371/-) IS TO BE TAXES AS UNEXPLAINED MONEY RECEIVED IN THE TRANSACTION OF SA LE OF PROPERTY IN QUESTION UNDER SECTION 69A OF THE I.T. ACT, 1961. AGGRIEVED THE AS SESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. AT THE TIME OF HEARING, SHRI S.N.SOPARKAR, A.R A PPEARED ON BEHALF OF THE ASSESSEE AND CONTENDED THAT ON THE FACTS NARRATED IN THE ASS ESSMENT ORDER, NO ADDITION CAN BE MADE UNDER SECTION 69A OF THE I.T. ACT, 1961. HE ACCORDI NGLY CONTENDED THAT ADDITION OF RS. 32,58,371/- MADE UNDER SECTION 69A BY THE ASSESSING OFFICER AND CONFIRMED BY LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE DELETED. 7. AS AGAINST THIS, SHRI R. K. DHANESTA, THE LD. D. R. APPEARED ON BEHALF OF THE REVENUE AND CONTENDED THAT IN THE LETTER DATED 04.0 4.2007 CALLING REMAND REPORT FROM THE ASSESSING OFFICER, THE LEARNED COMMISSIONER OF INCO ME TAX(APPEALS) MENTIONED THAT ADDITION IS REQUIRED TO BE MADE, AS PER SECTION 50C OF THE ACT. ACCORDINGLY, FOR MAKING THE ADDITION UNDER SECTION 50C, THE LEARNED COMMISS IONER OF INCOME TAX(APPEALS) ITA NO.1359/AHD/2009 6 REQUESTED THE ASSESSING OFFICER TO REFER THE MATTER TO THE DVO FOR VALUATION OF THE PROPERTY IN TERMS OF SUB-SECTION (2) OF SECTION 50C OF THE I.T. ACT, 1961. HE FURTHER SUBMITTED THAT THE LEARNED COMMISSIONER OF INCOME T AX(APPEALS) WANTED TO CONFIRM THE ADDITION UNDER SECTION 50C BUT THROUGH INADVERTENCE , CONFIRMED THE ADDITION MENTIONED UNDER SECTION 69A OF THE I.T. ACT, 1961. THIS IS NO THING BUT A BONA FIDE MISTAKE AND HE CONTENDED THAT FOR CORRECTION OF THIS BONA FIDE MISTAKE, THE MATTER BE REMANDED TO THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). THIS W AS STRONGLY OBJECTED BY THE LD. COUNSEL OF THE ASSESSEE THAT NO SECOND INNINGS CAN BE GIVEN IN THE ABSENCE OF ANY APPEAL OR CROSS-OBJECTION BY THE DEPARTMENT. HE ACCORDINGL Y SUGGESTED THAT ON THIS GROUND ALONE, ADDITION OF RS. 32,58,371/- CONFIRMED BY THE LEARN ED COMMISSIONER OF INCOME TAX(APPEALS) UNDER SECTION 69A OF THE I.T. ACT BE D ELETED BECAUSE ON THE GIVEN FACTS UNDER SECTION 69A OF THE I.T. ACT HAS NO APPLICATIO N. 8. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. FROM THE PERUSAL OF LETTER DATE D 04.04.2007 CALLING REMAND REPORT FROM THE AO [REPRODUCED BY THE LD.CIT(A) AT PAGE 10 OF T HE IMPUGNED ORDER], IT IS CLEAR THAT HE WANTED TO CONSIDER THE APPLICATION OF SECTION 50C O F THE I.T. ACT, 1961. IT IS ONLY FOR THIS PURPOSE, HE REQUESTED THE AO TO MAKE A REFERENCE TO VALUATION OFFICER IN TERMS OF SUB- SECTION (2) OF SECTION 50C OF THE I.T. ACT, 1961. A DMITTEDLY, ON THE GIVEN FACTS, NO ADDITION CAN BE MADE UNDER SECTION 69A OF THE I.T. ACT, 1961. THE ONLY RELEVANT SECTION IS 50C AS WAS MENTIONED BY THE CIT(A) IN LETTER DATED 04.04.2007 CALLING REMAND REPORT. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AN D RESTORE THE MATTER BACK TO HIM WITH THE DIRECTION THAT HE SHOULD CORRECT THIS BONA FIDE MISTAKE AND HE SHOULD ALSO RE-WORK OUT THE CORRECT AMOUNT OF LONG TERM CAPITAL GAIN BY MEN TIONING THE CORRECT SECTION AND CONSIDERING THE WORKING OF GAIN BY THE AO MENTIONED IN THE ABOVE PARA 5, AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. THE FACTS RELATING TO CONTROVERSY INVOLVED IN GR OUND NO.2 IS AGAINST NON-ALLOWANCE OF DEDUCTION UNDER SECTION 54 OF THE I.T.ACT, 1961. 10. AFTER HEARING BOTH THE SIDES, WE ARE OF THE VIE W THAT THIS ISSUE IS ALSO REQUIRED TO BE RE-ADJUDICATED BY THE CIT(A), KEEPING IN VIEW TH E FACT THAT AS PER THE ASSESSEE, HE HAS PURCHASED NEW RESIDENTIAL HOUSE KNOWN AS AMRASHIRI SH IN SCHEME PROMOTED BY BUILDER ITA NO.1359/AHD/2009 7 SAUMYA CONSTRUCTION PVT. LTD. (DIVISION OF ASHIMA G ROUP). AS PER THE AO, THE ASSESSEE HAS CONSTRUCTED THE HOUSE AND NOT PURCHASED. IN SUP PORT OF THE CONTENTION THAT THE ASSESSEE PURCHASED THE HOUSE, AT THE TIME OF HEARIN G BEFORE US, THE LD. COUNSEL OF THE ASSESSEE RELIED ON THE FOLLOWING DECISIONS: I) ITAT, BOMBAY E BENCH IN THE CASE OF SMT. RA DHABEN P. ZAVERI VS- ITO REPORTED IN [1988] 27 ITD (BOM)594 II) ITAT, BOMBAY B BENCH IN THE CASE OF PURUSHOT TAM GOVIND BHAT VS- FIRST ITO REPORTED IN [1985] 23 TTJ (BOM) 37 III) ITAT, BOMBAY D BENCH IN THE CASE OF V.M.DUJ ODWALA VS- ITO REPORTED IN [1991] 36 ITD 130 (BOM.) 10.1 IT IS PERTINENT TO NOTE THAT IN THE ASSESSMENT ORDER, NO CAPITAL GAIN IS WORKED OUT BY THE AO. AS ADJUDICATED BY US HEREINABOVE, WE ARE OF THE VIEW THAT IN THIS CASE, BY INVOKING THE PROVISIONS CONTAINED IN SECTION 50C, L ONG TERM CAPITAL GAIN IS REQUIRED TO BE WORKED OUT. WHETHER THE ASSESSEE IS ENTITLED TO DED UCTION UNDER SECTION 54 IN RESPECT OF CAPITAL GAIN WORKED OUT BY INVOKING THE SECTION 50C OF THE I.T. ACT IS REQUIRED TO BE ADJUDICATED BY THE LD. CIT(A). APART FROM THIS, THE DECISIONS WHICH ARE CITED BY THE LD. COUNSEL OF THE ASSESSEE WERE ALSO NOT REFERRED BY T HE LD.CIT(A), IN THE IMPUGNED ORDER. WE, THEREFORE, RESTORE THIS ISSUE TO THE FILE OF TH E AO WITH THE DIRECTION THAT HE WILL RE- WORK OUT THE CORRECT AMOUNT OF CAPITAL GAIN, AFTER RE-CONSIDERING ALL THE JUDICIAL PRONOUNCEMENTS CITED BEFORE THE BENCH BY THE LD. CO UNSEL OF THE ASSESSEE. 11. REGARDING GROUND NOS. 3 AND 4 OF THE APPEAL, WE HAVE HEARD BOTH THE SIDES. THE CONTROVERSY INVOLVED IN THESE TWO GROUNDS OF APPEAL ARE COVERED AGAINST THE ASSESSEE BY THE DECISION OF ITAT, SPECIAL BENCH, KOLKATA IN THE CASE OF SHREE CAPITAL SERVICES LTD. VS- ACIT REPORTED IN [2009] 121 ITD 498 (KOL.)(SB). AT THE TIME OF HEARING BEFORE US, THE LD. COUNSEL OF THE ASSESSEE COULD NOT POINT OUT HOW THIS DECISION OF THE SPECIAL BENCH IS NOT APPLICABLE TO THE FACTS OF THE ASSESSEES CA SE. WE, THEREFORE, DECLINE TO INTERFERE. RESULTANTLY, THE GROUNDS NOS. 3 AND 4 ARE REJECTED. 12. THE FACTS RELATING TO CONTROVERSY IN GROUND NO. 5 ARE THAT IN THE ASSESSMENT ORDER, THE AO DISALLOWED LEGAL FEES OF RS.3,000/- AND BANK CHARGES OF RS.9,015/- PAID BY THE ASSESSEE FROM CLAIM AGAINST INCOME FROM OTHER SOUR CES. ITA NO.1359/AHD/2009 8 13. ON APPEAL, IN THE IMPUGNED ORDER, THE LD.CIT(A) CONFIRMED THE AFORESAID DISALLOWANCE ON THE GROUND THAT BEFORE THE AO, DESP ITE ADEQUATE OPPORTUNITY GIVEN, THE ASSESSEE HAS NOT FURNISHED ANY EXPLANATION. 14. BEFORE US ALSO, THE ASSESSEE COULD NOT POINTED OUT HOW THESE EXPENSES ARE ALLOWABLE. WE, THEREFORE, DECLINE TO INTERFERE. THI S GROUND OF APPEAL IS ALSO REJECTED. 15. THE LAST GROUND IS AGAINST LEVY OF INTEREST UND ER SECTION 234B AND 234C OF THE I.T. ACT, 1961. THE ASSESSING OFFICER WILL ALLOW CONSEQU ENTIAL RELIEF IN LEVY OF INTEREST UNDER THESE TWO SECTIONS. 16. IN THE RESULT, FOR STATISTICAL PURPOSES, THE AP PEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED. THE ORDER PRONOUNCED IN THE COU RT ON 21.04.2011 SD/- SD/- (G.D.AGRAWAL) (T.K. SHARMA) VICE PRESIDENT JUDICIAL MEMBER DATED : 21/04/2011 COPY OF THE ORDER IS FORWARDED TO:- (1) THE ASSESSEE (2) THE DEPARTMENT. (3) CIT (A.) CONCERNED. (4) CIT CONCERNED. (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AH MEDABAD. TALUKDAR/ SR. P.S. ITA NO.1359/AHD/2009 9