Sh. Satish Kumar Goyal, Agra V. J.C.I.T., Range-1, Agra

ITA 143/AGR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1975 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 10 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 12-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAHIB P SATSANGI
• Keywords: Unexplained cash credit; Business income; Depreciation; Salary income; Deemed to accrue or arise in india
• Section: 69C; 80C; 68; 56

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NO.143/AG/2014 ASSESSMENT YEAR:2010-2011 SH. SATISH KUMAR GOYAL, VS. THE JCIT, 106, NEHRU NAGAR, RANGE-1, AGRA AGRA PAN NO. AAPPG6375H (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SAHIB P. SATSANGI RESPONDENT BY : SH. RAJARSHI DWIVEDY DATE OF HEARING : 08/02/2016 DATE OF PRONOUNCEMENT : 04/05/2016 ORDER PER ANNAPURNA MEHROTRA A.M. PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAIN ST THE ORDER OF LD. CIT(A)-1, AGRA, DATED 06.3.2014. THE ASSESSEE HAS R AISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN UPHOLDING THE ACTION OF LEARNED ASSESSING OFFICER OF TREATING RS. 4,51,29,000 BEING INCOME DECLARED BY THE ASSESSEE FOR TAXATION UNDER THE HEA R INCOME FROM OTHER SOURCES WITHIN THE MEANING OF CHAPTER IV OF THE INCOME TAX ACT. 1961 AS UNEXPLAINED CREDIT UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN UPHOLDING THE ACTION OF LEARNED ASSESSING OFFICER OF INVOKING SEC TION 68 OF THE INCOME TAX ACT, 1961 ON THE INCOME ALREADY OFFERED FOR TAXATION AND TREATING THE INCOME AS DEEMED INCOME UNDER SECTION 68 OF THE INCOME TAX AC T, 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN UPHOLDING THE ACTION OF LEARNED ASSESSING OFFICER OF TREATING THE INCOME OF THE ASSESSEE AS DEEMED INCOME AND NOT INCLUDING THE SAME IN TOTAL I NCOME, IGNORING / REJECTING THE FACTS AND LAW THAT TO CHARGE THE INCOME TAX, TH E INCOME HAS TO BE INCLUDED IN TOTAL INCOME. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN UPHOLDING THE ACTION OF LEARNED ASSESSING OFFICER IN NOT APPRECIA TING THAT IN DEEMING INCOME UNDER SECTION 68, A LEGAL FICTION HAS BEEN CREATED UNDER CERTAIN CIRCUMSTANCES BECAUSE THEY ARE ACTUALLY NOT INCOME BUT LOAN / GIF T ETC. WHEREAS UNDER SECTION 56(2)(VI)/(VII) READ WITH SECTION 2(24)(XIV)/(XV), A SPECIFIC PROVISION EXISTS TREATING THE RECEIPT OF SUM OF MONEY WITHOUT CONSIDERATION A S INCOME. 2 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN UPHOLDING THE ACTION OF LEARNED ASSESSING OFFICER OF DISALLOWING THE SET OFF OF DEPRECIATION LOSS AMOUNTING TO RS. 3,53,05,585 WITHOUT APPRECIATING T HE LAW IN PROPER PERSPECTIVE AND DIRECTING TO CARRY FORWARD THE BUSINESS LOSS TO NEXT YEAR IN SPITE OF THE ADMITTED FACT THAT THE LOSS CLAIMED BY THE ASSESSEE IS GENUINE AND ASSESSED BY LEARNED ASSESSING OFFICER. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN UPHOLDING THE ACTION OF LEARNED ASSESSING OFFICER IN NOT APPRECIA TING THAT EVEN DEEMED INCOME UNDER SECTION 68 CAN ONLY BE TAXED UNDER THE RELEVANT HEAD OF INCOME IN TERMS OF PROVISIONS OF SECTION 14 OF THE INCOME TAX ACT, 1961. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSL Y ERRED IN UPHOLDING THE ACTION OF LEARNED ASSESSING OFFICER OF CAPRICIOUSLY REJECTING THE PROVISIONS OF INCOME TAX ACT, CIRCULARS ISSUED BY HON'BLE CBDT, N UMEROUS JUDICIAL PRONOUNCEMENTS CITED AND CONTENTIONS RAISED DURING THE ASSESSMENT PROCEEDING AND INTERPRETING THE LAW AS PER HIS WISH AND WHIM B ASED ON CONJECTURES AND SURMISES. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSLY ERRED IN UPHOLDING THE ACTION OF LEARNED ASSESSING OFFICER OF ALLEGING THAT- (I) THE INCOME AMOUNTING TO RS. 4,51,29,000 DECLARE D IN THE RETURN BY ASSESSEE IS UNDISCLOSED INCOME OF THE ASSESSEE: AND (II) THE ASSESSEE HAS CONCEALED HIS INCOME AND FURN ISHED INACCURATE PARTICULARS OF INCOME. 9. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AS WELL AS IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GROSSLY ERRED IN UPHOLDING THE ACTION OF LEARNED ASSESSING OFFICER OF- (I) CHARGING INTEREST UNDER SECTIONS 234B, AND 234C OF THE INCOME TAX ACT, 1961; AND (II) INITIATING PENALTY PROCEEDINGS UNDER SECTION 2 71(1)(C) OF THE INCOME TAX ACT, 1961. 10. THE APPELLANT CRAVES LEAVE TO ADD / MODIFY / AL TER / DELETE ANY OR ALL GROUNDS OF APPEAL. THESE ACTION OF LEARNED INCOME TAX AUTHORITIES BELO W, BEING ARBITRARY, UNJUST, ILLEGAL AND BASED ON SURMISE AND CONJECTURE LIABLE TO BE QUASHED AND IT IS PRAYED TO YOUR HONOURS THAT THEY PLEASE BE QUASHED AND / OR ANY OTHER RELIEF JUST DEEM FIT AND PROPER PLEASE BE DIRECTED. 2. FACTS OF THE CASE RELEVANT TO THE DISPOSAL OF TH E PRESENT APPEAL ARE THAT ASSESSEE RECEIVED CASH AGGREGATING TO RS. 4,51,29,0 00/- ON VARIOUS DATES FROM 10.4.2009 TO 07.03.2010 AND TREATED SUCH CASH REC EIPTS AS HIS MISCELLANEOUS INCOME. SUCH MISCELLANEOUS INCOME WAS INCLUDED IN THE TOTAL INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. 3. IN FACT THE COMPUTATION OF INCOME OFFERED BY THE ASSESSEE ALONGWITH THE RETURN OF INCOME IS REPRODUCED AT PAGE NO. 2 OF THE ASSESSMENT ORDER AS UNDER:- 3 SALARY INCOME 2,10,000/- REMUNERATION FROM O.P. CHAINS LTD. PROPERTY INCOME 8,400/- BUSINESS INCOME PARTNER IN M/S O.P. CHAINS (INTT) 54,114/- PARTNER IN M/S O.P. CHAINS (SALARY) 75,000/- PROP. M/S SATISH KUMAR GOYAL (WIND POWER, JODHPUR) (LOSS) -35495060/- INCOME FROM OTHER SOURCES INTEREST / MUTUAL FUND INCOME, ETC 51,961/- MISC. INCOME 4,51,29,000/- 4,51,80,961/- 4,51,80,961/- 1,00,33,415/- LESS DEDUCTION U/S 80C 1,00,000/- NET INCOME 99,33,415/- AGRICULTURAL INCOME 1,75,000/- ACCORDING TO THE ASSESSEE, THE ABOVE SAID MISC. INC OME WAS DISCLOSED U/S 56 UNDER THE HEAD INCOME FROM OTHER SOURCES. HOWEVER , ACCORDING TO THE A.O., NEITHER THE NAMES OF PERSONS FROM WHOM SUCH CASH WE RE PURPORTEDLY RECEIVED NOR THE SPECIFIC ACTIVITIES / DETAILS IN RESPECT OF WHICH SUCH ALLEGED INCOME WAS RECEIVED, WERE DISCLOSED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING. THE A.O. WAS NOT SATISFIED AS TO THE NA TURE AND SOURCE OF THE PURPORTED MISCELLANEOUS INCOME OF RS. 4,51,29,000/- AND ACCORDINGLY HE INVOKED SECTION 68 IN RELATION TO SUCH RECEIPTS. FU RTHER THE A.O. HELD THAT SUCH INCOME WAS NOT LIABLE TO BE SET OFF AGAINST THE LOS S UNDER THE HEAD BUSINESS IN TERMS OF SECTION 71. ACCORDINGLY THE A.O. DENIED TH E SET-OFF OF THE SAID MISCELLANEOUS INCOME AGAINST THE BUSINESS LOSS CLAI MED IN THE ASSESSMENT ORDER. 3. AGGRIEVED AGAINST THE ABOVE SAID DECISION OF THE A.O., FIRST APPEAL WAS FILED BEFORE CIT(A)-1, AGRA, WHO CONFIRMED THE ACT ION OF THE A.O. AND THAT IS HOW THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESS EE BEFORE US ON THE ABOVE MENTIONED GROUNDS OF APPEAL. 4. AT THE TIME OF HEARING , LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT INCOME BY WAY OF MISCELLANEOUS INCOME WAS OFFERED B Y THE ASSESEE ON HIS OWN IN THE COMPUTATION U/S 56 UNDER THE HEAD INCOME FR OM OTHER SOURCES AND THE 4 INCOME SO OFFERED WAS THUS NOT CHARGEABLE AS DEEMED INCOME U/S 68. IT WAS FURTHER SUBMITTED BY LD. COUNSEL FOR THE ASSESSEE T HAT IN ANY EVENT, EVEN THE DEEMED INCOME IS TAXABLE UNDER THE HEAD INCOME FRO M OTHER SOURCES AND SUCH INCOME WAS ASSESSABLE UNDER THE HEAD INCOME F ROM OTHER SOURCES AND IN TERMS OF PROVISIONS OF SECTION 71, SUCH INCOME WAS LIABLE TO BE SET OFF AGAINST THE LOSS UNDER THE HEAD BUSINESS. LD. COUNSEL FILED D ETAILED SUBMISSIONS IN SUPPORT OF ABOVE SAID PROPOSITIONS OF LAW AND ALSO FILED CA SE LAW COMPILATIONS. NOTHING WAS HOWEVER SUBMITTED ABOUT THE NATURE AND EVIDENCE OF THE PURPORTED RECEIPTS. 5. ON THE OTHER HAND LD. DR RELIED UPON THE ORDERS PASSED BY THE A.O. AND BY LD. CIT(A) AND PRAYED THAT THE ACTION OF THE AUT HORITIES BELOW MAY BE CONFIRMED. 6. AFTER HAVING GONE THROUGH THE ORDERS PASSED BY T HE LOWER AUTHORITIES AND AFTER HEARING THE PARTIES AND TAKING INTO ACCOUNT T HE SUBMISSIONS MADE BEFORE US WE PROCEED TO DECIDED THE APPEAL AS UNDER:- THOUGH SEVERAL GROUNDS OF APPEAL HAVE BEEN RAISED B UT THE DISPUTE IS IN NARROW FIELD. THE FIRST ISSUE THAT ARISES FOR OUR CONSIDER ATION IS AS TO WHETHER MISC. INCOME OF RS. 4,51,29,000/- OFFERED BY THE ASSESSEE IN HIS COMPUTATION OF INCOME WAS CHARGEABLE AS DEEMED INCOME U/S 68. THE PROVISIONS OF SECTION 68 AS WERE RELEVANT IN TH E YEAR UNDER APPEAL READ AS UNDER:- SECTION- 68 WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NA TURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESS ING OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE A SSESSEE OF THAT PREVIOUS YEAR. A PLAIN READING OF SECTION 68 AND THE JURISPRUDENCE DEVELOPED IN THIS REGARD CLEARLY SUGGEST THAT IF ANY SUM IS FOUND CREDITED I N THE BOOKS OF AN ASSESSEE, IT IS THE ONUS OF THE ASSESSEE TO EXPLAIN ABOUT THE NATUR E AND SOURCE THEREOF AND IN CASE SUCH EXPLANATION IS NOT SATISFACTORY, SUCH SUM MAY BE CHARGED TO INCOME TAX AS INCOME OF THE ASSESSEE. 7. IN THE PRESENT CASE, IT IS MORE THAN EVIDENT THA T THOUGH ASSESSEE OFFERED AN AGGREGATE CASH RECEIPT OF RS. 4,51,29,000/- AS H IS INCOME IN THE COMPUTATION OF INCOME BUT THE NATURE AND SOURCE OF THE SAID REC EIPTS WAS NOT EXPLAINED WITH REFERENCE TO ANY COGENT MATERIAL OR EVIDENCE. NO NA ME OF THE PERSON(S) FROM 5 WHOM SUCH AMOUNT WAS ALLEGEDLY RECEIVED, WAS GIVEN. IT WAS MERELY BRANDED AND SOUGHT TO BE PASSED AS CASUAL INCOME. EVEN CASU AL INCOME HAS ALSO SOME ORIGIN AND AT LEAST THERE MUST BE SOME EXPLANATION REGARDING SUCH ALLEGED CASUAL INCOME. ANY RECEIPT CAN NOT BE TREATED AS CA SUAL INCOME JUST LIKE THAT MERELY FOR THE REASON THAT ASSESSEE SEEKS TO TERM I T AS CASUAL INCOME. EXPLANATION OFFERED IN THIS REGARD WAS TOO GENERAL, SCANTY AND WITHOUT REFERENCE TO ANY BASIS, MATERIAL OR EVIDENCE. EXPLA NATION GIVEN BY THE ASSESSEE DOES NOT INSPIRE ANY CONFIDENCE. NO EVIDENCE HAS BE EN LED, NOT EVEN BEFORE US, TO EXPLAIN ABOUT THE NATURE AND SOURCE OF SUCH ALLEGED RECEIPTS. EXPLANATION GIVEN BY THE ASSESSEE IS THUS UNSATISFACTORY & ASSE SSEE FAILED TO DISCHARGE THE INITIAL ONUS CONTAINED IN SECTION 68 IN THIS REGARD . WE THUS DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY AO AND CIT(A) WHIC H HOLD THAT THE NATURE AND SOURCE OF THE ALLEGED CASH RECEIPTS OR EXPLANATION IN THIS REGARD WAS NOT SATISFACTORY. THEREFORE, WE ARE OF THE CONSIDERED V IEW THAT THE MISC. INCOME OF RS. 4,51,29,000/- OFFERED BY THE ASSESSEE REPRESENT ED THE SUM FOUND CREDITED IN THE BOOKS OF THE APPELLANT, THE NATURE AND SOURCE O F WHICH WAS NOT SATISFACTORILY EXPLAINED WAS RIGHTLY TREATED AS INCOME U/S 68 OF T HE INCOME TAX ACT, 1961. WE DO NOT FIND ANY INFIRMITY IN THIS REGARD AND WE UPH OLD SUCH FINDING OF THE A.O. WHICH WAS CONFIRMED BY THE FIRST APPELLATE AUTHORIT Y. 8. HAVING SO HELD, THE NEXT QUESTION WHICH ARISES F OR OUR CONSIDERATION IS AS TO UNDER WHICH HEAD OF INCOME, SUCH INCOME IS ASSESSAB LE. IN OTHER WORDS, WHETHER INCOME COVERED U/S 68 IS BEYOND THE FIVE HE ADS OF INCOME AS GIVEN IN SECTION 14 INCLUDING THE HEAD INCOME FROM OTHER SO URCES. SECTION 14 OF THE INCOME TAX ACT, PROVIDES THAT UNL ESS OTHERWISE PROVIDED BY THE ACT, ALL INCOMES SHALL BE CLASSIFIED UNDER FIVE HEA DS OF INCOME I.E. SALARY, HOUSE PROPERTY, PROFITS AND GAIN BUSINESS OR PRO FESSION, CAPITAL GAINS AND OTHER SOURCES. ADMITTEDLY. THE PURPORTED MISCELLA NEOUS INCOME CAN NEITHER FALL UNDER THE HEAD SALARY, NOR UNDER THE HEAD HOUSE PRO PERTY, NOR UNDER THE HEAD PROFIT AND GAINS BUSINESS OR PROFESSION, NOR UNDER THE HEAD CAPITAL GAIN. ALL THAT REMAINS IS THE RESIDUAL HEAD INCOME I.E. INCOME FRO M OTHER SOURCES. SECTION 56(1) OF THE INCOME TAX ACT, PROVIDES INCOME OF EVE RY KIND, WHICH IS NOT TO BE EXCLUDED FROM THE TOTAL INCOME SHALL BE CHARGEABLE TO INCOME TAX UNDER THE HEAD INCOME FROM OTHER SOURCES, IF IT IS NOT CHARGE ABLE TO INCOME UNDER ANY OF THE HEAD SPECIFIED IN SECTION 14 ITEMS A TO E. CONJ OINT READING OF SECTION 14 AND SECTION 56(1) READ WITH SECTION 68 SUGGESTS THAT IN COME REFERRED U/S 68 WOULD BE ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES . THIS IS SO FOR THE REASON 6 THAT ALL INCOMES ARE TO BE CLASSIFIED UNDER THE FIV E GIVEN HEADS AND NOTHING OTHERWISE AS CONTEMPLATED UNDER SECTION 14 HAS BEE N PROVIDED IN THE ACT IN RESPECT OF THE INCOME COVERED U/S 68 SO AS TO TRIGG ER THE EXCEPTION GIVEN IN SECTION 14. SIMILARLY, THE INCOME REFERRED IN SECTI ON 68 DOES NOT FALL INTO THE EXCLUSIONS AS GIVEN IN SECTION 56(1) I.E. SUCH DEEM ED INCOME U/S 68 IS NOT TO BE EXCLUDED FROM THE TOTAL INCOME UNDER THIS HEAD NOR IT IS CHARGEABLE UNDER THE FIRST FOUR HEADS. THEREFORE, THE NATURAL AND OBVIOU S RESULT WOULD BE THAT SUCH DEEMED INCOME U/S 68 WOULD BE ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES AND WE THUS SO HOLD. IN FACT, HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF KIM PHARMA P. LTD. VS. CIT 258 CTR 454 HELD THAT DEEMED INCOME U/S 69, 69A, 69B & 69C ARE NOT ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES . HONBLE PUNJAB & HARYANA HIGH COURT RELIED UPON GUJARAT HIGH COURT D ECISION IN THE CASE OF FAKIR MOHMED HAZI HASAN VS. CIT 247 ITR 290. IT IS IMPORT ANT TO SUBMIT HONBLE GUJARAT HIGH COURT IN A SUBSEQUENT DECISION OF DCIT VS. RAD HEY DEVELOPERS INDIA LTD. 329 ITR 1 HELD THAT IN THE DECISION OF FAKIR MOHMED HAZI HASAN VS. CIT 247 ITR 290, THE LEGISLATIVE SCHEME EMANATING FROM CONJOINT READ ING OF PROVISIONS OF SECTION 14 AND 56 WERE NOT CONSIDERED. HONBLE GUJARAT HIGH COURT IN THIS CASE FURTHER HELD THAT THE DECISION OF APEX COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. D.P. SANDU BROS. CHEMBUR (P) LTD. 273 ITR 1 HA S DEALT WITH THIS EVERY ISSUE WHILE DECIDING THE TREATMENT TO BE GIVEN TO THE TRA NSACTION OF SURRENDERED TENANCY RIGHT, FOLLOWING THE EARLIER DECISION OF TH E APEX COURT IN THE CASE OF UNITED COMMERCIAL BANK LTD. VS. COMMISSIONER OF INC OME TAX 32 ITR 688. HONBLE GUJARAT HIGH COURT HELD THAT IT WOULD BE SU FFICIENT TO STATE THAT THE INCOME TAX ACT, ENVISAGES TAXING EVERY INCOME UNDER ANY OF THE HEADS SPECIFIED IN SECTION 14. THUS, IT IS EVIDENT THAT ON THIS ISSUE AT LEAST THE RE ARE DIVERGENT VIEWS. IT HAS NOT BEEN BROUGHT TO OUR NOTICE THAT THERE IS ANY DECISI ON ON THIS ISSUE FROM THE JURISDICTIONAL HIGH COURT I.E. HONBLE ALLAHABAD HI GH COURT. THEREFORE IN SUCH A SITUATION THE VIEW FAVOURABLE TO THE TAXPAYER HAS T O BE ACCEPTED WHICH IS A SETTLED PROPOSITION OF LAW, AS HELD BY HONBLE SUPR EME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. VEGETABLE PRODUCTS L TD.88 ITR 192. THIS LEADS TO THE THIRD ISSUE INVOLVED IN THE PRESE NT APPEAL WHICH IS AS TO WHETHER THE LOSS UNDER THE HEAD BUSINESS CAN BE DENIED TO BE SET OFF AGAINST THE INCOME ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES. SECTION 71 OF 7 THE INCOME TAX ACT, WHICH PROVIDES THE SET OFF OF L OSS FROM ONE HEAD AGAINST INCOME FROM ANOTHER DOES NOT DENY SUCH SET OFF. EVEN THE DENIAL OF SUCH SET OFF BROUGHT BY SECTION 115BBE WAS BROUGHT ON THE STATUTE BY FINANCE ACT, 2012 W.E.F. 01.04.2013 I.E. FOR AND FROM THE A.Y. 2013-14. THEREFORE, WHEN THE SPECIFIC DENIAL OF THE SET OFF WAS BROUGHT PROSPECTIVELY BY THE LEGISLATURE IN SECTION 115BBE, THE SET OFF OF L OSS UNDER THE HEAD BUSINESS AGAINST THE INCOME FROM OTHER SOURCES CANNOT BE D ENIED TO THE ASSESSEE. WE MAY ADD HERE THAT BOTH SIDES ARGUED AT GREAT LEN GTH AND HAVE GIVEN MULTIPLE DECISIONS WHICH HAVE BEEN CONSIDERED BY US AND FOR THE SAKE OF BREVITY, WE HAVE NOT DEALT THEM SEPARATELY BUT WE H AVE CONSIDERED THE ENTIRE GAMUT OF CASE LAWS REFERRED BY LD. COUNSEL FOR THE ASSESSEE AND TAKEN INTO ACCOUNT BEFORE THE ABOVE MENTIONED DECISION WAS REA CHED. 9. IN EFFECT, WE HOLD THAT THE IMPUGNED AMOUNT OF R S. 4,51,29,000/- RECEIVED BY THE ASSESSEE IS TO BE TREATED AS INCOME UNDER SE CTION 68 OF THE INCOME TAX ACT, ASSESSABLE UNDER THE HEAD INCOME FROM OTHER S OURCES AND ACCORDINGLY AS PER THE PROVISION OF SECTION 71, BUSINESS LOSSES OF THE ASSESSEE ARE TO BE SET OFF AGAINST THE SAME. THE SEPARATE ADDITION OF RS. 4,51 ,29,000/- IS THEREFORE DELETED. 10. THE ASSESSEE IN GROUND NO. 9 HAS CHALLENGED THE CHARGING OF INTEREST UNDER SECTION 234 B & 234C OF THE ACT AS ALSO THE I NITIATION OF PENALTY UNDER SECTION 271(1)(C). THIS GROUND IS CONSEQUENTIAL TO THE GROUNDS RAISED ON QUANTUM ADDITION MADE AND SINCE THE SAME HAS BEEN DELETED B Y US AS HELD IN PARA 9 OF THE ORDER, THE GROUND RAISED HAS NO RELEVANCE 11. THE APPEAL OF THE ASSESSEE IS ACCORDINGLY ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (ANNAPURNA MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR