Utsav Jain, Kolkata V. I.T.O, wd29(4), Kolkata, Kolkata

ITA 1514/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4739 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 24-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NILOY BARUN SOM
• Assessee Lawyers: PRASUN KR BHATTACHARYA
• Keywords: Capital asset; Additional evidence
• Section: 143(3); 234B; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 1514 / KOL / 2013 ASSESSMENT YEAR :2009-10 UTSAV JAIN 90C ALIPUR ROAD, KOLKATA-700 027 [ PAN NO.AGRPJ 4300 R ] V/S . ITO, WARD-29(4), AAYKAR BHAWAN, 2, GARIAHAT ROAD, KOLKATAA-700 068 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI PRASUN KR. BHATTACHARYA, FCA /BY RESPONDENT SHRI NILOY BARUN SOM, JCIT, DR /DATE OF HEARING 16-05-2016 /DATE OF PRONOUNCEMENT 08-06-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F COMMISSIONER OF INCOME TAX (APPEALS)-XVI, KOLKATA DATED 15.03.2013. ASSESSMENT WAS FRAMED BY ITO WARD-45(2), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 29.11.2011 FOR ASSESSMENT YEAR 2009-10. ASSESSEE HAS RAISED THE FO LLOWING CONCISE GROUNDS:- 1) FOR THAT WITHOUT PREJUDICE TO ANY OTHER GROUND T AKEN HEREIN, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - XVI, KOLKATA , ERRED BOTH IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO HAVE DIS MISSED THE APPEAL OF THE APPELLANT ASSESSEE. ITA NO.1514/KOL/2013 A.Y.2009-10 UTSAV JAIN V. ITO WD-29(4) KOL. PAGE 2 2) FOR THAT WITHOUT PREJUDICE TO ANY OTHER GROUND T AKEN HEREIN, BOTH THE LD. INCOME TAX OFFICER AND THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) - XVI, KOLKATA ERRED BOTH IN LAW AND IN THE FACTS AND CIR CUMSTANCES OF THE CASE TO HAVE DISALLOWED ASSESSEE'S CLAIM OF LONG TERM CAPIT AL GAINS ARISING FROM THE EFFECTIVE SALE WITH REGARD TO APARTMENT NO. 302 ON 3RD FLOOR IN BUILDING 'E' IN THE MULTI-STOREYED RESIDENTIAL COMPLEX NAMED AS ' PEARL GATEWAY TOWERS ' IN SECTOR 44, NOIDA, DIST. GAUTAM BUDH NAGAR, (U.P.) A ND INSTEAD TREATING THE SAME AS SHORT TERM CAPITAL GAINS FOR RS. 5247000/- AND LEVYING TAX ON IT. 3) FOR THAT WITHOUT PREJUDICE TO ANY OTHER GROUND T AKEN HEREIN, THE APPELLANT IS ENTITLED TO THE DEDUCTIONS AVAILABLE IN CASES RESUL TING IN LONG TERM CAPITAL GAIN, WHICH HAS BEEN DENIED TO THE APPELLANT INASMU CH AS THE ASSESSEE INVESTED HIS GAINS IN A RESIDENTIAL HOUSE WITHIN TH E PRESCRIBED PERIOD AND NEITHER THE ASSESSING OFFICER NOR THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) - XVI, KOLKATA ALLOWED THIS CLAIM OF THE ASSESSEE AS BOTH OF THEM TREATED THE EMANATING GAINS TO BE ' SHORT TERM CAPITAL GAIN ' AND NOT 'LONG TERM CAPITAL GAINS' 4) FOR THAT WITHOUT PREJUDICE TO ANY OTHER GROUND T AKEN HEREIN, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - XVI, KOLKATA ERRED BOTH IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE TO HAVE CON FIRMED THE QUANTUM AND LEVY OF INTEREST WHICH HAD BEEN MADE BY INVOKING SE CTION 234B AND SECTION 234C OF THE INCOME TAX ACT, 1961 AS THERE CAN BE NO LEVYING OF INTEREST ON DISPUTED LIABILITY. SHRI PRASUN KR. BHATTACHARYA, LD. AUTHORIZED REPRES ENTATIVE APPEARING ON BEHALF OF ASSESSEE AND SHRI NILOY BARAN SOM, LD. DE PARTMENTAL REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. 2. THE GROUNDS NO. 1 TO 3 ARE RAISED BY ASSESSEE IN HIS APPEAL ARE INTER- CONNECTED. THE FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL HAS DECLARED ITS INCOME UNDER THE HEAD SALARY, CAPITAL GAINS AND OTHER SOURCES. THE ASSESSEE PURCHASED A FLAT NO. 302, 3 RD FLOOR, BUILDING E, SECTOR 44, NOIDA, DIST. GUTAM BUDH NAGAR, UTTAR PRADESH FROM M /S PEARLS INFRASTRUCTURE PROJECTS LTD. THE ASSESSEE MADE PAYMENT OF 10 LAKH ON APPLICATION FOR BOOKING OF SAID FLAT ON 10.02.2006 AND AS PER AGREE MENT BALANCE PAYMENT TO THE TUNE OF 85% OF THE BASIC PRICE PLUS OTHER CHARG ES WAS TO BE PAID WITHIN 45 DAYS FROM THE DATE OF AGREEMENT. THE SECOND PAYMENT WAS MADE BY ASSESSEE ON 24.05.2006 SO THE ASSESSING OFFICER CON STRUED THAT THE ITA NO.1514/KOL/2013 A.Y.2009-10 UTSAV JAIN V. ITO WD-29(4) KOL. PAGE 3 AGREEMENT MUST HAVE BEEN MADE IN THE MONTH OF APRIL 06 I.E. 45 DAYS PRIOR TO THE FIRST DATE OF PAYMENT I.E 24.5.2006. DURING THE YEAR UNDER CONSIDERATION, ASSESSEE HAS SOLD THE SAID FLAT ON 07.03.2009 AND C LAIMED AS LONG TERM CAPITAL GAINS (LTCG FOR SHORT). HOWEVER, AO TREATED THE GAINS AS SHORT TERM CAPITAL GAINS (STCG FOR SHORT) AND SOUGHT CLARIFICA TION FROM ASSESSEE IN THIS CONNECTION. IN COMPLIANCE TO THE NOTICE, THE ASSESS EE SUBMITTED THAT THE ALLOTMENT LETTER WAS RECEIVED FROM THE COMPANY ON D ATED. 01.01.2006. THEREFORE THE PERIOD OF HOLDING FOR THE WORKING OF CAPITAL GAIN SHOULD BE RECKONED FROM 01.01.2006 OR AT THE MOST FROM THE DA TE OF FIRST PAYMENT OF BOOKING AMOUNT WHICH IS 10.02.2006. HOWEVER, AO DIS REGARDED THE PLEA OF ASSESSEE BY OBSERVING AS UNDER:- (I) AFTER PAYMENT OF BOOKING AMOUNT, BALANCE PAYMEN T WAS TO BE PAID WITHIN 45 DAYS AND THE SECOND PAYMENT WAS MADE AFTE R BOOKING AMOUNT ON DATED 24.05.2006. SO IT IS CLEARLY INDICA TED THAT THE AGREEMENT WAS MADE IN THE MONTH OF APRIL, 2006. THE AO ALSO OBSERVED THAT THE COPY OF AGREEMENT WAS NOT MADE AV AILABLE AT THE TIME OF ASSESSMENT. (II) AS PER THE TERMS AND CONDITIONS OF ALLOTMENT, THE OFFER FOR POSSESSION OF FLAT ONLY TO BE GIVEN AFTER THE PAYMENT OF BALAN CE BASIC PRICE AND OTHER CHARGES. THE ASSESSEE IN THE INSTANT CASE, HA S PAID SUBSTANTIAL AMOUNT OF 1,56,95,250/- ON THE PRICE ON 06.06.2008 LEAVING A BALANCE OF RS. 13,90,998.93 STILL TO BE PAID. (III) THE BOOKING AMOUNT PAID BY ASSESSEE WAS IN TH E NATURE OF EARNEST MONEY. THEREFORE, THE CLAIM OF ASSESSEE FOR HOLDING THE RIGHT OF OWNERSHIP IN THE FLAT IS NOT TENABLE AND THE LETTER OF ALLOTMENT OR AGREEMENT ONLY GIVE A RIGHT TO AN ACQUIRED FLAT AND NOT THE RIGHT OF OWNERSHIP. THE ASSESSEE HAS NEVER SHOWN IN HIS BOOK S OF ACCOUNT AS ASSETS BUT TREATED AS ADVANCE AGAINST FLAT. (IV) THAT THE PRINCIPLE OF ALLOTMENT OF FLAT UNDER SELF FINANCE SCHEME OF DDA PROJECT IS NOT APPLICABLE IN THIS CASE AS THE F LAT IN THE INSTANT CASE ITA NO.1514/KOL/2013 A.Y.2009-10 UTSAV JAIN V. ITO WD-29(4) KOL. PAGE 4 WAS NOT ALLOTTED BY THE AUTHORITY WITHIN THE MEANIN G OF CIRCULAR NO. 471 DATED 15.10.1986 AND CIRCULAR NO. 672 DATED 16.12.1 993. CONSIDERING THE ABOVE FACTS, AO TREATED THE GAINS A S STCG AND CONSEQUENTLY PROVISION OF SEC. 54 OF THE ACT WAS NOT AVAILABLE T O THE ASSESSEE. 3. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE LD . CIT(A) WHO CONFIRMED THE ACTION OF AO BY OBSERVING AS UNDER:- I CAREFULLY CONSIDERED THE ASSESSMENT ORDER, SUBMI SSION OF THE APE, ADDITIONAL EVIDENCED, REMAND REPORT OF THE AO AND I TS REJOINDER. I FOUND THAT THE APPELLANT SHOWN IN THE BALANCE SHEET OF RS .1,04,64,000/- AS OPENING BALANCE OF ADVANCE FOR FLAT AND FURTHER ADV ANCE FOR RS.56,45,250/- MADE DURING THE YEAR. IT WAS ALSO FO UND FROM RECORD THAT THE APPELLANT APPLIED TO PEARLS INFRASTRUCTURE PROJ ECT LTD. (PROMOTED BY PACL INDIA LTD.) ON 10/02/2006 FOR ALLOTMENT OF A F LAT AND AGREE TO SIGN AND EXECUTE NECESSARY AGREEMENT AND ALSO SIGNED THE TERMS AND CONDITIONS FOR ALLOTMENT. THE APPELLANT PAID RS.10, 00,000/- ON APPLICATION FOR BOOKING AND AS PER TERMS AND CONDIT IONS FOR ALLOTMENT. THE APPELLANT WAS REQUIRED TO PAY 85% OF THE BASIC PRICE PLUS OTHER CHARGES WITHIN 45 DAYS FROM THE DATE OF AGREEMENT. THAT CLEARLY INDICATED THAT THE AGREEMENT WAS MADE IN THE MONTH OF APRIL, 2006. MOREOVER, AS PER TERMS AND CONDITIONS THE ASSESSEE WAS REQUIRED TO PAY IN FULL PAYMENT FOR POSSESSION. THE LAST PAYMEN T WAS MADE ON 05/06/2008 AND THE APPELLANT GOT POSSESSION AFTER M AKING FULL PAYMENT. THE LETTER OF AGM MARKETING OF PEARLS INFRASTRUCTUR E PROJECT LTD., THAT PERMISSION / POSSESSION OF THE SAID FLAT WAS GIVEN ON 07/02/2009. TE APPELLANT APPLIED TO PEARLS INFRASTRUCTURE PROJECT LTD (PROMOTED BY PACL INDIA LTD.) ON 10/02/2006 AND PAID BOOKING MON EY ON 10/02/2006 AND HOW THE ALLOTMENT LETTER ISSUED ON 01/01/206. T HIS IS TOTALLY CONTRADICTORY. THE APPELLANT NOT MADE ANY SUBMISSIO N ON THESE ISSUES. HE ONLY RELIED UPON VARIOUS CASE LAWS. I DULY CONSIDERED THE CASE LAWS CITED BY THE A/R. T HE FACTS OF THE CASE ARE DIFFERENT WITH CITED CASE LAWS. IN THIS CASE TH E APPELLANT MADE SECOND PAYMENT AFTER THE APPLICATION MONEY ON 24/05 /2006 WHICH SHOULD BE WITHIN 45 DAYS OF AGREEMENT. THAT ALSO ES TABLISHED THAT AGREEMENT WAS MADE IN THE MONTH OF APRIL, 2006. THE PROPERTY WAS SOLD ON 07/-3/2009 OR RS.2,13,56,250/-. THE ABOVE F ACTS CLEARLY PROVE THAT THE PROPERTY WAS HELD FOR LESS THAN THREE YEAR S AND THERE WAS A SHORT TERM CAPITAL GAIN OF RS.52,47,000/-. ITA NO.1514/KOL/2013 A.Y.2009-10 UTSAV JAIN V. ITO WD-29(4) KOL. PAGE 5 BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E PREFERRED SECOND APPEAL BEFORE US. 4. BEFORE US LD. SUBMITTED PAPER BOOK WHICH IS RUNN ING PAGES FROM 1 TO 40 AND VARIOUS CASE LAWS. HE STATED THAT IN THE INSTAN T CASE ASSESSEE HAS SOLD THE RIGHT OF OWNERSHIP IN THE FLAT WHICH WAS REQUIR ED BY MAKING THE PAYMENT OF BOOKING AMOUNT FOR 10 LAKH DATED 10.02.2006 AND THE RIGHT WAS TRANSFE RRED TO THE PURCHASER ON 07.03.2009. THE RIGHT WAS REQUI RED IN THE FORM OF LETTER OF ALLOTMENT BY ASSESSEE WHICH WAS HELD FOR MORE THAN THREE YEARS. LD. AR DREW OUR ATTENTION ON PAGE NO. 31 OF THE PAPER BOOK WHER E THE CLAUSE NO. 22, WHICH REPRODUCED BELOW:- 22. THIS ALLOTMENT IS THE ONLY AGREEMENT TOUCHING UPON THE PURCHASE OF THE APARTMENT BY THE ALLOTTEE AND MERGES WITH ALL P RIOR DISCUSSIONS OR ANY OTHER AGREEMENT OR AGREEMENT, WHETHER WRITTEN O R ORAL, IF ANY, BETWEEN THE PARTIES AND ANY VARIATION IN ANY OF THE TERMS HERETO SHALL NOT BE BINDING ON THE PARTIES UNLESS IT IS SIGNED E XPRESSLY BY THE PARTIES. LD. AR FURTHER SUBMITTED THAT IN THE INSTANT CASE A SSESSEE HAS SOLD THE RIGHT WHICH IS CAPITAL ASSET WITHIN THE MEANING OF SEC. 2 (14) OF THE ACT AND HE PRAYED BEFORE THE BENCH TO QUASH THE ORDERS OF AUTH ORITIES BELOW. ON THE OTHER HAND LD. DR SUBMITTED THAT THE BOOKING AMOUNT IS NOTHING BUT THE EARNEST MONEY WHICH WAS PAID ON 10.02.2006 AND SAME CANNOT BE TAKEN AS DATE TO RECKON THE PERIOD OF HOLDING THE AGREEME NT. AS SUCH THE PERIOD OF HOLDING SHOULD BE RECKONED FROM THE MONTH OF APRIL, 2006 AND THE IMPUGNED PROPERTY HAS BEEN TRANSFERRED IN THE MONTH OF MARCH , 2009. THEREFORE THE PERIOD OF HOLDING IS LESS THAN 36 MONTHS SO THE BEN EFIT OF EXEMPTION U/S. 54 CANNOT BE MADE AVAILABLE TO ASSESSEE. HE VEHEMENTLY RELIED ON THE ORDERS OF AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. FROM THE AFORESAID DISCUSSION WE FIND THAT ASSESSEE IN ITA NO.1514/KOL/2013 A.Y.2009-10 UTSAV JAIN V. ITO WD-29(4) KOL. PAGE 6 THE INSTANT CASE HAS SOLD THE RIGHT VESTED BEFORE T AKING THE POSSESSION OF THE PROPERTY BUT AUTHORITIES BELOW HAVE NOT TREATED THE TRANSACTIONS AS SALE OF THE RIGHT BUT TREATED THE TRANSACTIONS AS SALE OF THE P ROPERTY. NOW THE ISSUE BEFORE US TO ADJUDICATE IS SO AS TO WHETHER THE DATE OF AL LOTMENT SHOULD BE TAKEN FOR THE PERIOD OF HOLDING FOR THE WORKING OF CAPITAL GA IN. FROM THE FACTS OF THIS CASE, WE FIND THAT THERE IS NO SEPARATE AGREEMENT E XECUTED BY ASSESSEE FOR THE PURCHASE OF THE FLAT AND THE LETTER OF ALLOTMEN T WHICH IS IN THE PAPER BOOK AT PAGES 23 TO 33 IS THE ONLY DOCUMENT WHICH GIVES RIG HT OF OWNERSHIP IN THE FLAT. THEREFORE, IN OUR VIEW WITH THE DATE OF ALLOTMENT L ETTER WILL BE TAKEN FOR WORKING OUT THE PERIOD OF HOLDING IN THE INSTANT CASE. WE A LSO RELIED IN THE FOLLOWING JUDGMENTS:- 1) CIT, SALARY CIRCLE, CHENNAI V. S.R.JEYASHANKRA ( 2015) 53 TAXMANN.COM 107 (MAD) WHERE THE HEAD-NOTE:- SECTION 2(29A), REA D WITH SECTION 2(42A), OF THE INCOME-TAX ACT, 1961 CAPITAL GAINS LONG TER M CAPITAL GAINS (LAND AND BUILDING) ASSESSMENT YEAR 2009-10 WHETHER WHERE ASSESSEE HAD ENTERED INTO AN AGREEMENT WITH BUILDER FOR PURCHASE OF UNDI VIDED SHARE OF LAND AND CONSTRUCTION, DATE OF ALLOTMENT OF UNDIVIDED SHARE IN LAND WAS TO BE ADOPTED AS DATE OF ACQUISITION FOR COMPUTING CAPITAL GAIN I NSTEAD OF DATE OF SALE DEED HELD, YES [PARA 10] [IN FAVOUR OF ASSESSEE] 2) MS. MADH KAUL V. CIT (2014) 43 TAXMANN.COM 417 ( P&H) WHERE HEAD- NOTE:- SECTION 2(29B), READ WITH SECTION 2(42B), OF THE INCOME-TAX ACT, 1961 CAPITAL GAINS LONG-TERM CAPITAL GAINS (ALLOTMENT OF FLAT) ASSESSMENT YEAR 1990-91 A FLAT WAS ALLOTTED TO ASSESSEE ON 07.06. 1986 SHE AID FIRST INSTALLMENT ON 4-7-1986 POSSESSION OF FLAT WAS DE LIVERED ON A LATER DATE THEREAFTER SHE SOLD FLAT ON 5-7-1989 IN RETURN OF INCOME FOR ASSESSMENT YEAR 1990-91, SHE DISCLOSED CAPITAL GAIN ARISING FROM SA LE OF FLAT AS LONG-TERM CAPITAL GAIN LOWER AUTHORITIES TREATED CAPITAL GA IN AS SHORT-TERM CAPITAL GAIN WHETHER IN PECULIAR FACTS OF CASE, CAPITAL GAIN ARI SING FROM SALE OF FLAT WAS A LONG-TERM CAPITAL GAIN HELD, YES [PARA 8] [IN FAV OUR OF ASSESSEE] ITA NO.1514/KOL/2013 A.Y.2009-10 UTSAV JAIN V. ITO WD-29(4) KOL. PAGE 7 3) VINOD KUMAR JAIN V. CIT (2010) 195 TAXMANN 174 ( P & H) WHERE HEAD- NOTE:- SECTION 2(29A) RED WITH SECTION 54, OF THE I NCOME-TAX ACT, 1961 CAPITAL GAINS LONG-TERM CAPITAL GAINS/ASSETS AS SESSMENT YEAR 1989-90 ASSESSEE WAS ALLOTTED A FLAT UNDER SCHEME OF DDA ON 27.2.1982 DELIVERY OF POSSESSION OF SAID FLAT TOOK PLACE ON 15.5.1986 WHE N ACTUAL FLAT NUMBER WAS ALLOCATED TO ASSESSEE ASSESSEE SOLD SAID FLAT ON 6.1.1989- HE CLAIMED THAT CAPITAL GAINS ARISING ON SALE OF FLAT WAS A LONG TE RM CAPITAL GAIN BUT ACCORDING TO REVENUE AUTHORITIES, FLAT WAS ALLOTTED ON15.5.19 86 AND, THEREFORE, CAPITAL GAIN WAS SHORT-TERM CAPITAL GAIN WHETHER UNDER SE LF-FINANCING SCHEME, AN ALLOTTEE GETS TITLE TO PROPERTY ON ISSUANCE OF AN A LLOTMENT LETTER AND PAYMENT OF INSTALMENTS IS ONLY A CONSEQUENTIAL ACTION UPON WHI CH DELIVERY OF POSSESSION FLOWS HELD, YES WHETHER THEREFORE, RIGHT OF ASS ESSEE PRIOR TO 15.5.986 WAS RIGHT IN PROPERTY AND EVEN PRIOR TO SAID DATE ASSES SEE WAS HOLDING SAID FLAT HELD, YES WHETHER, THEREFORE, CAPITAL GAIN ARISIN G ON SALE OF SAID FLAT WAS A LONG-TERM CAPITAL GAIN AND, CONSEQUENTLY, ASSESSEE WAS ENTITLED TO SET OFF SAME UNDER SECTION 54 HELD, YES. TAKING A CONSISTENT VIEWS RELYING ON THE AFORESAID JUDGMENTS OF HON'BLE HIGH COURTS AND FACTS OF THE PRESENT CASE, WE REVERSE TH E ORDERS OF AUTHORITIES BELOW AND DIRECT THE ASSESSING OFFICER TO TAKE THE DATE OF LETTER OF ALLOTMENT FOR WORKING OUT THE PERIOD OF HOLDING. IN THE INSTA NT CASE LETTER OF ALLOTMENT IS ON 01.01.2006 AND ACCORDINGLY THE RIGHT WAS ACQUIRE D ON THAT DATE. THE ASSESSEE SOLD THE RIGHT ACQUIRED BY WAY OF LETTER O F ALLOTMENT IS TO BE DATED ON 07.03.2009. ACCORDINGLY THE PERIOD OF HOLDING EXCEE DS 36 MONTHS IN THE PRESENT CASE. SO THE PERIOD OF HOLDING IN THE INSTA NT CASE EXCEEDS 36 MONTHS AND INCOME ARISING ON THE SALE OF SAID PROPERTY WIL L BE TREATED AS LTCG. ACCORDINGLY THE COMMON GROUNDS OF ASSESSEES APPEAL ARE ALLOWED. 6. NEXT GROUND OF ASSESSEES APPEAL IS AS REGARDS T HAT LD. CIT(A) ERRED IN LEVY OF INTEREST BY INVOKING SECTION 234B AND 234C OF THE ACT. AS WE HAVE ITA NO.1514/KOL/2013 A.Y.2009-10 UTSAV JAIN V. ITO WD-29(4) KOL. PAGE 8 ALREADY ALLOWED ASSESSEES APPEAL, SO THIS GROUND O F ASSESSEE PREMATURE IN NATURE AND DO NOT REQUIRE ANY ADJUDICATION. 7. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 08/ 06/2016 SD/- SD/- (S.S.VISWANETHRA RAVI) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 08 / 06 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-UTSAV JAIN, 90C, ALIPORE ROAD, KOLKATA-7 00 027 2. /RESPONDENT-ITO, WARD-29(4) AAYKAR BHAWAN, 2, GARIA HAT ROAD, KOLKATA-68 3. ) *+, , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5.01233*+, , *+ , / DR, ITAT, KOLKATA 6.26789 / GUARD FILE. BY ORDER/ ,, /TRUE COPY/ / , *+ ,