JCIT (OSD), CC-XX, KOLKATA, Kolkata V. M/s Arjun Associates Pvt. Ltd., Kolkata

ITA 1518/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99888 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 19-10-2012
• Court: TRIBUNAL
• Department Lawyers: SACHIDANANDA SRIVASTAVA
• Keywords: Capital asset; Business income; Depreciation; Business expenditure; Deemed dividend
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] I.T.A NOS.1517 & 1518/KOL/2012 ASSESSMENT YEARS: 2006-07 & 2007-08 JT. COMMISSIONER OF INCOME-TAX (OSD) VS. M/S. ARJU N ASSOCIATES (P) LTD. CENTRAL CIRCLE-XX, KOLKATA. (PAN: AABCA9223F) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 23.09.2015 DATE OF PRONOUNCEMENT: 16.10.2015 FOR THE APPELLANT: SHRI SACHIDANANDA SRIVASTAVA, CIT, DR FOR THE RESPONDENT: SHRI RAVI TULSIYAN, FCA ORDER PER SHRI MAHAVIR SINGH, JM: BOTH THESE APPEALS BY REVENUE ARE ARISING OUT OF SE PARATE ORDERS OF CIT(A), CENTRAL- III, KOLKATA IN APPEAL NOS. 99&100/CC-XX/CIT(A)C-II I/11-12/KOL DATED 20.07.2012. ASSESSMENTS WERE FRAMED SEPARATELY BY JCIT(OSD), CC -XX, KOLKATA U/S. 143(3)/153A OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) FOR AYS 2006-07 AND 2007- 08 VIDE ITS ORDER, BOTH, DATED 22.12.2011. SINCE F ACTS ARE COMMON AND GROUNDS ARE IDENTICAL, EXCEPT VARIANCE IN AMOUNT, WE DISPOSE OF BOTH THE APPEALS BY THIS CONSOLIDATED ORDER. 2. THE FIRST COMMON ISSUE IN THESE APPEALS OF REVEN UE IS AGAINST THE ORDER OF CIT(A) IN DELETING THE ADDITION ON ACCOUNT OF SHORT CREDIT IN RENTAL INCOME BY ADMITTING NEW EVIDENCE IN VIOLATION OF RULE 46A OF THE I. T. RULE S. THE ISSUE IN BOTH APPEALS OF REVENUE IS IDENTICAL AND FACTS ARE ALSO IDENTICAL. HENCE, W E WILL TAKE THE FACTS FROM AY 2006-07 AND DECIDE THE ISSUE. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO. 1: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.27,59,634/- FOR AY 2006-07 AND RS.2,40,000/- FOR AY 2007-08 ON ACCOUNT OF SHORT CREDIT IN RENTAL INCOME BY ADMITTING EVIDENCE NOT FURNISHE D BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND WITHOUT GIVING THE ASSESSING OFFICER OPPORTUNITY TO EXAMINE THE SAME IN VIOLATION OF RULE 46A(3) OF THE I. T. RULES. 1.1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD . CIT(A) ERRED IN DELETING THE ADDITION OF RS.27,59,634/- FOR AY 2006-07 AND RS.2,40,000/- FOR AY 2007-08 ON ACCOUNT OF SHORT CREDIT IN RENTAL INCOME AS THE DETAILS FURNISHED BY THE AS SESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS REVEALED THAT THERE INDEED WAS SHORTFAL L IN CREDIT OF RENTAL INCOME. 3. BRIEFLY STATED FACTS ARE THAT THE AO NOTICED FRO M ANNEXURE 2A OF ASSESSEES REPLY DATED 18.11.2011 THAT IT HAD RECEIVED RENTAL INCOME FROM M/S. NARESH KUMAR & CO. AT RS. 2 ITA NOS.1517 & 1518/K/2012 ARJUN ASSOCIATES (P) LTD. AY 2006-07 & 2007-08 22.20 LACS BUT WHEN IT WAS CROSS VERIFIED FROM NOTE S ON ACCOUNTS AT 11B(5) OF THE AUDIT REPORT, WHEREIN THE RENTAL RECEIPT WAS DISCLOSED AT RS.23,50,621/- THEREBY SHORT DISCLOSURE OF RENTAL INCOME AT RS.1,30,621/-. SIMILARLY, THE A SSESSEE ALSO DISCLOSED RENTAL INCOME FROM NARESH KUMAR & CO. P. LTD. AT RS.55.80 LACS, W HEREAS, ACCORDING TO AO, AS PER NOTES ON ACCOUNTS AT 11B(5) OF THE AUDIT REPORT, TH E RENTAL INCOME RECEIPTS ARE AT RS.82,09,013/-. AS THERE WAS SHORT DISCLOSURE OF R ENT AT RS.26,29,013/- AND NO EXPLANATION WAS SUBMITTED BEFORE THE AO, HE MADE ADDITION OF RS .1,30,621/- AND RS.26,29,013/- THEREBY TOTAL ADDITION OF RS.27,59,634/-. AGGRIEVE D, ASSESSEE PREFERRED APPEAL BEFORE CIT(A). 4. THE CIT(A) AFTER GOING THROUGH SCHEDULE 8 OF ANN UAL REPORT OF TAX AUDIT AND NOTES ON ACCOUNTS AT 11B(5) OF AUDIT REPORT NOTED T HAT THERE IS NO DIFFERENCE AS PER P&L ACCOUNT AND AS REFLECTED IN THE LEDGER ACCOUNT. AC CORDINGLY, HE DELETED THE ADDITION FOR THE REASON THAT THE CONFUSION HAS ARISEN DUE TO ERR ONEOUS REFLECTION AND REIMBURSEMENT OF RENT IN THE NOTES ON ACCOUNTS. ACCORDINGLY, HE DEL ETED THE ADDITION. AGGRIEVED, NOW REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. FIRST, WE WILL TAKE UP THE RENT RECEIVED BY T HE ASSESSEE FROM M/S. NARESH KUMAR & CO. THE FACTS ARE THAT AS PER SCHEDULE 8 OF ANNUAL REPORT, WHICH SHOWS THE BREAKUP OF THE INCOME AS UNDER: PARTICULARS AMOUNT (RS.) INTEREST ON FIXED DEPOSITS AND OTHERS RS. 7,2 0,000/- RENT RS. 70,80,000/- PROFIT ON SALE OF SHARES RS. 75,00,000/- TOTAL RS.1,53,00,000/- THE ASSESSEE DISCLOSED TOTAL RENTAL INCOME AT RS.70 .80 LACS. OUT OF THIS, RENT OF RS.70.80 LACS NARESH KUMAR & CO. WAS AT RS.20.20 LACS BUT IN THE NOTES ON ACCOUNTS, IT WAS DESCRIBED AS RENT OF RS.23,50,621/- THEREBY THE DIF FERENCE AROSE OF RS.1,30,621/-. THIS DIFFERENCE IS BASICALLY DUE TO THE FACT THAT THE TO TAL REIMBURSEMENT RECEIVED BY THE ASSESSEE FROM NARESH KUMAR & CO. WAS INCLUDED BY THE AUDITOR . WE FIND THAT THE ASSESSEE FILED COPIES OF LEDGER ACCOUNT AS WELL AS THE DETAILS OF TRANSACTION AS APPEARING IN THE LEDGER ACCOUNT OF THE ASSESSEE BEFORE CIT(A) FOR THE FIRST TIME. FROM THESE DETAILS, IT IS CRYSTAL CLEAR THAT THE ASSESSEE HAS RECONCILED THESE DOCUME NTS BUT SINCE THESE DOCUMENTS WERE 3 ITA NOS.1517 & 1518/K/2012 ARJUN ASSOCIATES (P) LTD. AY 2006-07 & 2007-08 FILED FOR THE FIRST TIME BEFORE CIT(A) AND THESE WE RE NOT REFERRED TO THE AO FOR VERIFICATION, HENCE,IN THE INTEREST OF JUSTICE, WE RESTORE THIS ISSUE BACK TO THE FILE OF AO ONLY WITH A DIRECTION TO EXAMINE THE VERACITY OF TH E DOCUMENTS. IN CASE THE RECONCILIATION IS CORRECT THE ADDITION WILL NOT BE MADE. SIMILARL Y, THE ASSESSEE HAS RECEIVED RENTAL INCOME FROM NARESH KUMAR & CO. P. LTD. AT RS.48.60 LACS IN CLUDING INTEREST ON LOAN AT RS.7.20 LACS THEREBY THE TOTAL RECEIPTS FROM SISTER CONCERN AT RS.55.80 LACS BUT THE AUDITOR OF THE ASSESSEE FILED NOTES ON ACCOUNTS AT 11B(5) WHEREIN HE HAS RECORDED THE RENTAL TRANSACTION DURING THE YEAR AT RS.82,09,013/-. BUT THE SCHEDUL E 8 OF ANNUAL REPORT CLEARLY SHOWS THE BREAKUP OF INCOME WHEREIN RENT RECEIVED IN TOTAL WA S RS.70.80 LACS WHICH INCLUDES THE RENT RECEIVED FROM NARESH KUMAR & CO. PVT. LTD. AT RS.55.80 LACS. WE FIND THAT THE TOTAL DEBIT TRANSACTIONS SHOWN IN THE LEDGER ACCOUNT OF N ARESH KUMAR & CO. PVT. LTD. WAS RS.27,67,094/-, WHICH WAS WRONGLY BIFURCATED BY THE AUDITOR INTO RENT AT RS.23,50,621/- AND COORDINATION ACTIVITIES AT RS.4,16,473/-. SIMI LAR DEBIT TRANSACTIONS OF THE LEDGER ACCOUNT HAVE BEEN REFLECTED BY THE AUDITOR AS RENTA L RECEIPTS. FROM THESE DOCUMENTS THE ASSESSEE HAS CLEARLY RECONCILED THE DISCREPANCY. SI NCE, THESE DOCUMENTS WERE NOT PLACED BEFORE THE AO AND WERE PLACED BEFORE THE CIT(A) FOR THE FIRST TIME, WE ARE OF THE CONSIDERED VIEW THAT LET THIS ISSUE BE EXAMINED BY THE AO AND AFTER VERIFYING THESE DOCUMENTS HE WILL ADJUDICATE THE ISSUE. ACCORDINGL Y, THIS ISSUE OF REVENUES APPEAL IS SET ASIDE TO THE FILE OF AO. SIMILAR ARE THE FACTS IN A Y 2007-08 AND DETAILS WERE FILED BY ASSESSEE BEFORE CIT(A) FOR THE FIRST TIME, HENCE, F OR THAT REASON THE ISSUE IN THIS YEAR ALSO IS SET ASIDE TO THE FILE OF AO. THEREFORE, THE ISSU E OF BOTH THE REVENUES APPEALS IS ALLOWED FOR STATISTICAL PURPOSES. 6. THE NEXT ISSUE IN BOTH THE APPEALS OF REVENUE IS AGAINST THE ORDER OF CIT(A) IN DELETING THE ADDITION MADE ON ACCOUNT OF INTEREST P AID ON LOAN BY ADMITTING NEW EVIDENCE IN VIOLATION OF RULE 46A(3) OF THE I. T. RULES. FO R THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.2: 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.4,64,542/- FOR AY 2006-07 AND RS.4,59,275/- FOR AY 2007-08 MADE ON ACCOUNT OF INTEREST PAID ON LOAN BY ADMITTING EVIDENCE NOT FURNISHED BE FORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN VIOLATION OF RU LE 46A(3) OF I. T. RULES. 7. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE DECLA RED INTEREST INCOME AT RS.7.20 LACS IN SCHEDULE 8 OF THE P&L ACCOUNT AND ALSO CLAIMED PAYM ENT OF INTEREST AT RS.4,64,542/- AS BUSINESS EXPENDITURE. THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS REQUIRED THE 4 ITA NOS.1517 & 1518/K/2012 ARJUN ASSOCIATES (P) LTD. AY 2006-07 & 2007-08 ASSESSEE TO ESTABLISH THE NEXUS BETWEEN PAYMENT OF INTEREST WITH THAT OF THE RECEIPT OF INTEREST BUT THE ASSESSEE DID NOT COOPERATE AND ACC ORDINGLY, THE AO MADE DISALLOWANCE OF INTEREST PAYMENT OF RS.4,64,542/-. AGGRIEVED, ASSE SSEE PREFERRED APPEAL BEFORE CIT(A), WHO DELETED THE DISALLOWANCE OF INTEREST BY OBSERVI NG THAT INTEREST PAYMENT WAS RELATED TO ACQUISITION OF FLAT AT 9/1, MIDDLETON STREET ON 31. 03.2003 FROM TATA IRON & STEEL CO. LTD. AND THIS PREMISES HAS BEEN ACQUIRED BY TAKING A LOA N OF RS.1 CR. FROM STANDARD CHARTERED BANK. SUBSEQUENTLY, THE SAID LOAN WAS TRANSFERRED TO ABN AMRO BANK ON 29.09.2004 AND INTEREST WAS PAID ON THE SAID LOAN. THE ASSESSEE CL AIMED BEFORE THE CIT(A) THAT THIS PROPERTY AT MIDDLETON STREET WAS REGISTERED OFFICE OF THE ASSESSEE AND, THEREFORE, THERE WAS DIRECT NEXUS BETWEEN THE INTEREST PAID ON FUND BORR OWED FROM ABN AMRO BANK AND ASSESSEES BUSINESS. ACCORDINGLY, CIT(A) DIRECTED THE AO TO ALLOW THE CLAIM OF INTEREST WHILE COMPUTING THE ASSESSEES BUSINESS INCOME. AG GRIEVED, NOW REVENUE IS IN APPEAL BEFORE US THAT THE SAME WAS NOT CONFRONTED TO THE A O BY THE CIT(A) WHILE ALLOWING RELIEF. 8. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE CLAIM OF THE ASSESSEE BEFOR E CIT(A) WAS THAT THIS INTEREST WAS PAID ON ACCOUNT OF ACQUISITION OF FLAT AT 9/1, MIDDLETON STREET ON 31.03.2003 FROM TATA IRON & STEEL CO. LTD. AS PER THE CLAIM OF THE ASSESSEE, TH IS PROPERTY WAS ACQUIRED BY TAKING A LOAN OF RS.1 CR. FROM STANDARD CHARTERED BANK AND CLAIME D THE INTEREST RELATING TO PREMISES AS ALLOWABLE U/S. 36(1)(III) OF THE ACT SINCE INTEREST PAID ON ASSET WHICH IS BEING USED AS BUSINESS ASSET IS ALLOWABLE AS DEDUCTION. WE FIND THAT THE ASSESSEE IS UNABLE TO BRING THE DOCUMENTS BEFORE THE AO DURING THE COURSE OF ASSESS MENT PROCEEDINGS BUT HE SUBSEQUENTLY PRODUCED THESE DOCUMENTS BEFORE CIT(A) FOR THE FIRST TIME AND CIT(A) HAS ALSO NOT REFERRED THESE DOCUMENTS TO THE AO FOR VER IFICATION. IN TERMS OF THE ABOVE, WE ARE OF THE VIEW THAT THE INTEREST IS PAID FOR ACQUISITI ON OF BUSINESS ASSET AND THE SAME IS ALLOWABLE BUT SUBJECT TO VERIFICATION OF THE AO. A CCORDINGLY, THIS ISSUE IS ALSO SET ASIDE TO THE FILE OF AO FOR VERIFICATION. THEREFORE, THIS I SSUE OF BOTH THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 9. THE NEXT ISSUE IN BOTH THE APPEALS OF REVENUE IS AGAINST THE ORDER OF CIT(A) IN DELETING THE DISALLOWANCE OF RS. 12,11,485/- FOR AY 2006-07 AND RS.11,00,756/- FOR AY 2007-08 MADE ON ACCOUNT OF DEPRECIATION ON HOUSE PR OPERTY ALTHOUGH IT WAS ESTABLISHED THAT THE PROPERTY WAS NOT PUT TO USE DURING THE YEA R. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.3: 5 ITA NOS.1517 & 1518/K/2012 ARJUN ASSOCIATES (P) LTD. AY 2006-07 & 2007-08 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF RS.12,11,485/- MADE ON ACCOUNT OF D EPRECIATION ON HOUSE PROPERTY ALTHOUGH IT WAS ESTABLISHED THAT THE PROPERTY WAS N OT PUT TO USE DURING THE YEAR. 10. BRIEFLY STATED FACTS ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS DISALLOWED DEPRECIATION CLAIMED BY THE ASSESSEE ON FLAT NO. 4 AT 9/1, MIDDLETON STREET ALONG WITH FURNITURE AND FIXTURE AND PLANT AND MACH INERY ON THE GROUND THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD NO BUSIN ESS INCOME AND DEPRECIATION IS CLAIMED ON THE FLAT USED BY SHRI ARJUN KUMAR, DIRECTOR OF T HE COMPANY AS RESIDENCE. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A). BEFORE CI T(A) IT WAS CONTENDED THAT THIS COMPANY IS IN EXISTENCE FROM EARLIER YEARS AND WAS IN BUSINESS OF HANDLING OF COAL ETC. BUT IN THIS YEAR DUE TO LULL IN THE BUSINESS COULD NOT GENERATE ANY BUSINESS INCOME. THE ASSESSEE ALSO FILED BALANCE SHEETS AND TRADING & P & L ACCOUNT BEFORE CIT(A), WHICH PROVES THAT THE ASSESSEE WAS ENGAGED IN THE BUSINES S OF COAL DURING THE YEAR OR IN THE EARLIER BUT NO SUBSTANTIAL BUSINESS WAS CARRIED OUT DURING THIS YEAR. ACCORDING TO ASSESSEE, THIS WAS A CONTINUING BUSINESS PROCESS AND DEPRECIA TION CANNOT BE DISALLOWED ON THE PREMISE THAT IN ONE YEAR THERE IS NO BUSINESS. ACC ORDINGLY, THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE BY GIVING FINDING THAT A COMPANY WH ICH IS IN EXISTENCE HAS TO INCUR CERTAIN EXPENSES FOR ITS EXISTENCE AND SUCH EXPENSES ARE AL LOWABLE AS BUSINESS EXPENDITURE EVEN IF THE COMPANY HAS NOT EARNED ANY BUSINESS INCOME DURI NG THE YEAR. THE CIT(A) RELIED ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. GANGA PROPERTIES PVT. LTD. 199 ITR 94 AND ALLOWED THE CLAIM OF ASSESSEE. AGGRIEVED, REVENUE CAME IN APPEALS BEFORE US. 11. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ADMITTEDLY, THE AO HAS NOTED TH E FACT THAT UNLIKE IN EARLIER YEARS THE ASSESSEE HAS NOT EARNED ANY INCOME FROM COORDINATIO N ACTIVITY OR HANDLING OF COAL ETC. IT MEANS THAT THE AO HAS ADMITTED IN EARLIER YEARS THE RE WAS BUSINESS ACTIVITY OF HANDLING OF COAL ETC. BY THE ASSESSEE. FROM THE ACCOUNTS OF TH E ASSESSEE ALSO IT IS REVEALED THAT IT IS IN CONTINUING BUSINESS AND ASSESSEE HAS EARNED INCOME FROM SERVICE CHARGES AND COORDINATION CHARGES AND COAL HANDLING CHARGES. EV EN THE ASSESSEE HAS FILED ACCOUNTS FOR THE YEAR ENDING 31.03.2005, WHICH ALSO REVEALS THAT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS ACTIVITY OF COORDINATION ACTIVITY OF C OAL HANDLING. EVEN THIS FLAT NO. 4 AT 9/1, MIDDLETON STREET WAS USED BY DIRECTOR OF THE ASSESS EE COMPANY AND THIS PARTICULAR FLAT IS KEPT AS BUSINESS ASSET BY THE ASSESSEE COMPANY IN I TS ACCOUNTS. NOW BEFORE US, DURING THE 6 ITA NOS.1517 & 1518/K/2012 ARJUN ASSOCIATES (P) LTD. AY 2006-07 & 2007-08 COURSE OF HEARING, LD. SR. DR COULD NOT CONTROVERT THE ABOVE FACT THAT THE ASSESSEE COMPANY IS NOT ENGAGED IN THE BUSINESS IN EARLIER Y EARS. 12. ANOTHER ASPECT OF THIS ISSUE ARGUED BY LD COUNS EL FOR THE ASSESSEE IS THAT THIS ASSET IS PART OF BLOCK OF ASSETS AND EVEN ON THIS PREMISE THE ASSESSEE IS ENTITLED FOR DEPRECIATION BECAUSE THERE CANNOT BE DISALLOWANCE OF DEPRECIATIO N IN CASE THE ASSET IS PART OF BLOCK OF ASSETS. BEFORE US IT WAS EXPLAINED THAT THE MODE OF COMPUTATION OF DEPRECIATION ALLOWABLE UNDER THE ACT HAD BEEN SHIFTED TO 'BLOCK OF ASSETS' CONCEPT, WHEREBY THE IDENTITY OF AN INDIVIDUAL ASSET IS COMPLETELY LOST. NOW ALL ASSETS HAVING SAME CLASSIFICATION AND RATE OF DEPRECIATION WOULD BE CLUBBED TOGETHER AND THE DEPR ECIATION IS TO BE COMPUTED ON THE ENTIRE BLOCK WITHOUT DISTINGUISHING THE SAME WITH R EFERENCE TO ACTUAL USE, IT MAY SO HAPPEN THAT THE ASSET MAY BE IN USE BUT THE VALUE MAY BE ' NIL' FOR REASON THAT IT'S WDV IS ADJUSTED AGAINST THE SALE PROCEEDS. THUS THERE IS NO PROVISI ON IN THE ACT WHICH DISCRIMINATES THE ALLOWABILITY OF DEPRECIATION ON FIXED ASSETS ON THE BASIS OF ITS USE OR ANY RESTRICTION HAD BEEN PROVIDED IN THE STATUTE AS IN THE CASE OF SECT ION 37(4); WHICH HAS BEEN DELETED. ACCORDINGLY, WE ARE OF THE VIEW THAT THE DEPRECIATI ON CANNOT BE DISALLOWED. FOR THIS PROPOSITION WE ARE RELYING ON THE JUDGMENT OF HONB LE DELHI HIGH COURT IN THE CASE OF CIT VS. 1. OSWAL AGRO MILLS LTD. 2. OSWAL CHEMICALS & F ERTILIZERS LTD. (2012) 341 ITR 467 (DEL.) WHEREIN IT HAS HELD THAT 29. AS PER AMENDED SECTION 32 , DEDUCTION IS TO BE ALLOWED - 'IN THE CASE OF ANY BLOCK OF ASSETS, SUCH PERCENTAGE ON THE WRITTEN DOWN VALUE THEREOF A S MAY BE PRESCRIBED'. THUS, THE DEPRECIATION IS ALLOWED ON BLOCK OF ASSETS, AND THE REVENUE CANNOT SEGREGATE A PARTICULAR ASSET THEREFROM ON THE GROUND THAT IT WAS NOT PUT TO USE. 30. WITH THE AFORESAID AMENDMENT, THE DEPRECIATION IS NOW TO BE ALLOWED ON THE WRITTEN DOWN VALUE OF THE BLOCK OF ASSETS AT SUCH PERCENTAGE AS MAY BE PRESCRIBED. WITH THIS AMENDMENT, INDIVIDUAL ASSETS HAVE LOST THEIR IDENTITY AND CONC EPT OF BLOCK OF ASSETS HAS BEEN INTRODUCED, WHICH IS RELEVANT FOR CALCULATING THE DEPRECATION. IT WOULD BE OF BENEFIT TO TAKE NOTE OF THE CIRCULAR ISSUED BY THE REVENUE ITSELF EXPLAINING TH E PURPOSE BEHIND THE AMENDED PROVISION. THE SAME IS CONTAINED IN CBDT CIRCULAR NO.469 DATED 23.09.1986, WHEREIN THE RATIONALE BEHIND THE AFORESAID AMENDMENT IS DESCRIBED AS UNDE R: '6.3 AS MENTIONED BY THE ECONOMIC ADMINISTRATION RE FORMS COMMISSION (REPORT NO. 12, PARA 20), THE EXISTING SYSTEM IN THIS REGARD REQUIRES TH E CALCULATION OF DEPRECIATION IN RESPECT OF EACH CAPITAL ASSET SEPARATELY AND NOT IN RESPECT OF BLOCK OF ASSETS. THIS REQUIRES ELABORATE BOOK-KEEPING AND THE PROCESS OF CHECKING BY THE ASS ESSING OFFICER IS TIME CONSUMING. THE GREATER DIFFERENTIATION IN RATES, ACCORDING TO THE DATE OF PURCHASE, THE TYPE OF ASSET, THE INTENSITY OF USE, ETC., THE MORE DISAGGREGATED HAS TO BE THE RECORD- KEEPING. MOREOVER, THE PRACTICE OF GRANTING THE TERMINAL ALLOWANCE AS PER SECTION 32(1)(III) OR TAXING THE BALANCING CHARGE AS PER SECTION 41(2) OF THE INCOME-TAX ACT NECESSITATE THE KEEPING OF R ECORDS OF DEPRECIATION ALREADY AVAILED OF BY EACH ASSET ELIGI BLE FOR DEPRECIATION. IN ORDER TO SIMPLIFY THE EXISTING CUMBERSOME PROVISIONS, THE AMENDING ACT HAS INTRODUCED A SYSTEM OF ALLOWING 7 ITA NOS.1517 & 1518/K/2012 ARJUN ASSOCIATES (P) LTD. AY 2006-07 & 2007-08 DEPRECIATION ON BLOCK OF ASSETS. THIS WILL MEAN THE CALCULATION LUMP SUM AMOUNT OF DEPRECIATION FOR THE ENTIRE BLOCK OF DEPRECIABLE AS SETS IN EACH OF THE FOUR CLASSES OF ASSETS, NAMELY, BUILDINGS, MACHINERY, PLANT AND FURNITURE.' 31. IT BECOMES MANIFEST FROM THE READING OF THE AFO RESAID CIRCULAR THAT THE LEGISLATURE FELT THAT KEEPING THE DETAILS WITH REGARD TO EACH AND EVERY D EPRECIABLE ASSETS WAS TIME CONSUMING BOTH FOR THE ASSESSEE AND THE ASSESSING OFFICER. THEREFO RE, THEY AMENDED THE LAW TO PROVIDE FOR ALLOWING OF THE DEPRECIATION ON THE ENTIRE BLOCK OF ASSETS INSTEAD OF EACH INDIVIDUAL ASSET. THE BLOCK OF ASSETS HAS ALSO BEEN DEFINED TO INCLUDE TH E GROUP OF ASSET FALLING WITHIN THE SAME CLASS OF ASSETS. IN VIEW OF THE ABOVE PROPOSITION OF LAW LAID DOWN B Y HONBLE DELHI HIGH COURT AND THE FACTS OF THE CASE THAT THIS ASSET FORMS PART OF BLO CK OF ASSETS, THE DEPRECIATION CANNOT BE DISALLOWED. ONCE THIS IS A FACT, THE ASSESSEE IS EN TITLED FOR DEPRECIATION AND CIT(A) HAS RIGHTLY ALLOWED THE CLAIM OF THE ASSESSEE. THIS IS SUE OF BOTH THE REVENUES APPEALS IS DISMISSED. 13. THE NEXT ISSUE IN THE APPEAL OF REVENUE FOR AY 2007-08 IS AGAINST THE ORDER OF CIT(A) IN DELETING THE ADDITION OF RS.7,60,00,000/- U/S. 2(22)(E) BY ACCEPTING APPELLANTS SUBMISSION WITHOUT EXAMINING THE SAME OR WITHOUT GI VING OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE SAME THUS VIOLATING THE PROV ISIONS OF RULE 46A(3) OF THE I. T. RULES. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.4: 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE DISALLOWANCE OF RS.7,60,00,000/- U/S. 2(22)(E) BY A CCEPTING APPELLANTS SUBMISSION WITHOUT EXAMINING THE SAME OR WITHOUT GIVING OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE SAME THUS VIOLATING THE PROVISIONS OF RULE 46A(3) O F THE I. T. RULES. 4.1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.7,60,00,000/- U/S. 2(22)(E) BY ACCEPTING APPELLA NTS SUBMISSION THAT THE LOAN OR ADVANCE AROSE DUE TO TRANSACTION INVOLVING SALE AND PURCHAS E OF SHARES WITHOUT GIVING OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE SAME THUS V IOLATING THE PROVISIONS OF RULE 46A(3) OF THE I. T. RULES. 4.2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.7,60,00,000/- U/S. 2(22)(E) BY ACCEPTING APPELLA NTS SUBMISSION WITHOUT EXAMINING THAT THE LOAN OR ADVANCE WAS INTEREST BEARING ONE THOUGH THE FACTS IS THAT THE SAME WAS INTEREST FREE AS SUBMITTED BY THE APPELLANT DURING THE ASSES SMENT PROCEEDINGS BEFORE THE AO. 4.3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.7,60,00,000/- U/S. 2(22)(E) ON THE FACTS WHICH A RE CONTRADICTORY TO THE FACTS SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. 4.4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.7,60,00,000/- U/S. 2(22)(E) BY WRONGLY RELYING O N THE DECISION OF JURISDICTIONAL HIGH COURT THOUGH THE SAME IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE BEING INTEREST FREE LOAN AND THIS COMES UNDER THE PURVIEW OF GRATUITOUS LOAN. 8 ITA NOS.1517 & 1518/K/2012 ARJUN ASSOCIATES (P) LTD. AY 2006-07 & 2007-08 14. BRIEFLY STATED FACTS ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THAT THE ASSESSEE HAS A REGULAR LOAN TRANSA CTION WITH M/S. NARESH KUMAR & CO. PVT. LTD. AND THIS LOAN OF RS.7.60 CR. IS INTEREST FREE LOAN OUTSTANDING. THE AO ALSO NOTICED THAT SHRI NARESH KUMAR IS HOLDING 50% SHARE IN THE ASSESSEE COMPANY AND 65% SHARE IN NARESH KUMAR & CO. PVT. LTD. ACCORDING TO HIM, THIS COMES WITHIN THE PURVIEW OF DEEMED DIVIDEND U/S. 2(22)(E) OF THE ACT. THE A O BROUGHT OUT THE FOLLOWING FOUR FACTS IN ASSESSMENT ORDER, WHICH READS AS UNDER: I) SRI NARESH KUMAR WAS OWNING 50% OF TOTAL SHARES OF THE ASSESSEE COMPANY AND 65% OF TOTAL SHARES OF M/S. NARESH KUMAR & CO. P. LTD. HE WAS A LSO ONE OF THE DIRECTORS IN BOTH THE COMPANIES. II) LOAN WAS NOT FORWARDED BY M/S. NARESH KUMAR & CO. P . LTD. IN THE ORDINARY COURSE OF BUSINESS. III) ENTIRE TRANSACTION WAS COLLUSIVE IN NATURE WITH SRI ARJUN KUMAR, SMT. SUNITA KUMAR & SRI NARESH KUMAR BEING THE ONLY PROMOTER-DIRECTORS OF B OTH THE COMPANIES HAVING 100% SHAREHOLDING AMONG THEM. IV) SUFFICIENT ACCUMULATED PROFIT WAS THERE IN THE HAND S OF M/S. NARESH KUMAR & CO. P. LTD., WHICH IT WANTED TO DISTRIBUTE IN A MANNER SO AS TO CIRCUMVENT INCIDENCE OF DIVIDEND TAX. AGGRIEVED, AGAINST ASSESSMENT OF THIS LOAN OF RS.7. 60 CR. AS DEEMED DIVIDEND, ASSESSEE PREFERRED APPEAL BEFORE CIT(A). 15. CIT(A) DELETED THE ADDITION BY OBSERVING AS UN DER: I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER AND SUBMISSIONS OF THE ASSESSEE. I FIND THAT FIRSTLY THE ALLEGED AMOUNT WAS NOT AN ADV ANCE OR LOAN RECEIVED BY THE ASSESSEE FROM M/S. NARESH KUMAR & CO. PVT. LTD. THE SAID BALANCE AROSE DUE TO THE TRANSACTION OF PURCHASE AND SALE OF SHARES BETWEEN THE ASSESSEE AND M/S. NARESH KUMAR & CO. PVT. LTD. THE AMOUNT OUTSTANDING AS PAY ABLE TO M/S. NARESH KUMAR & CO. PVT. LTD. WAS CONVERTED INTO A LOAN AND INTERES T WAS PAID BY THE ASSESSEE ON THE SAME. NO MONEY HAD FLOWN FROM THE COFFERS OFM/S. NA RESH KUMAR & CO. PVT. LTD. TO THE ASSESSEE. SECONDLY I FIND THAT AS ON THE DATE O F THE SAID TRANSACTION, I.E., ON 28.03.2007, THE REQUIREMENTS OF SECTION 2(22)(E) WE RE NOT MET SINCE NONE OF THE SHAREHOLDERS WAS HAVING ANY SUBSTANTIAL INTEREST IN THE ASSESSEE-COMPANY AS WELL AS HAD SHAREHOLDING EXCEEDING 10% IN M/S. NARESH KUMAR & CO. PVT. LTD. I.E. THE LENDER COMPANY. DEEMED DIVIDEND UNDER SECTION 2(22) (E) IS ATTRACTED ONLY IN A CASE WHERE BOTH THE CONDITIONS I.E. A SHAREHOLDER HAS SU BSTANTIAL INTEREST IN THE RECIPIENT COMPANY AND HAS 10% OR MORE HOLDING IN THE LENDING COMPANY IS FULFILLED WHICH DID NOT EXIST IN THE CASE OF THE ASSESSEE ON THE DATE O N WHICH THE SAID CREDIT BALANCE/LOAN CAME INTO EXISTENCE. FURTHERMORE, SINCE THE SAID AM OUNT OUTSTANDING WAS INTEREST BEARING, THEREFORE IN VIEW OF THE DECISION OF THE C ALCUTTA HIGH COURT IN THE CASE OF PRADIP KUMAR MALHOTRA VS. CIT, REPORTED IN 338 ITR 538, THE SAID AMOUNT COULD NOT HAVE BEEN TREATED AS DEEMED DIVIDEND UNDER SECTION 2(22)(E). THE HON'BLE CALCUTTA HIGH COURT HAS HELD THAT ONLY GRATUITOUS LOANS OR A DVANCES CAN BE TREATED AS DEEMED DIVIDEND U/S.2(22)( E). IN THE CASE OF THE ASSESSEE SINCE THE SAID AMOUNT IS INTEREST BEARING, THE PROVISIONS OF SECTION 2(22)(E) ARE CLE ARLY NOT ATTRACTED. EVEN OTHERWISE, IN VIEW OF PLETHORA OF DECISIONS RELIED UPON BY THE ASSESSEE AND MORE PARTICULARLY THE DECISION OF DELHI HIGH COURT IN THE CASE OF ANKITEC H PVT. LTD., BOMBAY HIGH COURT IN THE CASE OF UNIVERSAL MEDICARE PVT. LTD., MUMBAI SP ECIAL BENCH DECISION IN THE CASE OF BHAUMIK COLOUR PVT. LTD. AND 9 ITA NOS.1517 & 1518/K/2012 ARJUN ASSOCIATES (P) LTD. AY 2006-07 & 2007-08 RAJASTHAN HIGH COURT IN THE CASE OF HOTEL HILTOP, D EEMED DIVIDEND CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE-COMPANY, SINCE THE ASS ESSEE-COMPANY IS NOT A SHAREHOLDER IN M/S. NARESH KUMAR & CO. PVT. LTD. IN VIEW OF ALL THE ABOVE, I DELETE THE ADDITION OF RS.7,60,00,000/- MADE BY THE A.O. T HIS GROUND OF APPEAL IS ALLOWED. AGGRIEVED, NOW REVENUE IS IN APPEAL BEFORE US. 16. AT THE OUTSET, LD. CIT, DR STATED THAT THERE IS A VIOLATION OF RULE 46A(3) OF THE I. T. RULES, 1962 FOR THE REASON THAT FOR THE FIRST TIME THE SHAREHOLDING PATTERN IS GIVEN BY THE ASSESSEE BEFORE CIT(A). LD. CIT, DR REFERRED TO TH E FOLLOWING PARA FROM THE ORDER OF CIT(A): IT WAS FURTHER SUBMITTED THAT THE SHAREHOLDING PAT TERN OF THE ASSESSEE ON 28.03.2007 WAS AS UNDER: NAME OF THE SHAREHOLDER NO. OF SHARES HELD % 1. SRI NARESH KUMAR 1 0.1 2. SMT. SUNITA KUMAR 19811 99.8 3. SRI ARJUN KUMAR 1 0.1 ON THE SAME DATE THE SHAREHOLDING PATTERN OF M/S. N ARESH KUMAR & CO. PVT. LTD. WAS AS UNDER: NAME OF THE SHAREHOLDER NO OF SHARES HELD % 1. SRI NARESH KUMAR 400591 65 2. SRI ARJUN KUMAR 215545 35 THEREAFTER THE SHAREHOLDING PATTERN OF THE ASSESSEE AS ON 29.03.2007 BECAME AS UNDER: NAME OF THE SHAREHOLDER NO OF SHARES HELD % 1. SRI NARESH KUMAR 19811 49.998 2. SMT. SUNITA KUMAR 19811 49.998 3. SRI ARJUN KUMAR 1 0.004 LD. CIT, DR STATED THAT THESE FACTS WERE NOT AVAILA BLE BEFORE AO AND NO REMAND REPORT WAS ASKED AND ACCORDING TO HIM, THE ISSUE NEEDS VER IFICATION IN RESPECT TO SHAREHOLDING PATTERN OF ASSESSEE COMPANY. IN REPLY, LD. COUNSEL FOR THE ASSESSEE TOOK US TO THE ASSESSMENT ORDER AND STATED THAT THE COMPLETE HOLDI NG PATTERN WAS AVAILABLE BEFORE THE AO AND FROM WHERE THE AO OBSERVED THAT SHRI NARESH KUM AR IS HOLDING 50% SHARE OF ASSESSEE COMPANY AND 65% SHARE IN NARESH KUMAR & CO . PVT. LTD. LD. COUNSEL FOR THE ASSESSEE STATED THAT NOTHING NEW WAS BROUGHT BEFORE THE CIT(A) AND THESE FACTS WERE ALREADY AVAILABLE BEFORE THE AO AND EVEN BEFORE THE CIT(A). ON QUERY FROM THE BENCH AND WHEN ASSESSMENT ORDER WAS CONFRONTED, LD. CIT, DR COULD NOT ANSWER THE SAME. 17. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT, ADMITTEDLY, NARESH KUMAR & CO. PVT. LTD. HAS NOT GIVEN ANY LOAN TO 10 ITA NOS.1517 & 1518/K/2012 ARJUN ASSOCIATES (P) LTD. AY 2006-07 & 2007-08 THE ASSESSEE COMPANY EVEN OTHERWISE THE BALANCE ARO SE DUE TO TRANSACTION OF PURCHASE AND SALE OF SHARES BETWEEN ASSESSEE AND NARESH KUMAR & CO. PVT. LTD. NO MONEY HAS BEEN ADVANCED BY NARESH KUMAR & CO. PVT. LTD. TO ASSESS EE. FROM THE SHAREHOLDING PATTERN IT IS ALSO CLEAR THAT THE ASSESSEE IS NOT A SHAREHOLDE R IN NARESH KUMAR & CO. PVT. LTD., WHICH IS THE PRIMARY REQUIREMENT FOR TREATING ANY LOAN AS DEEMED DIVIDEND U/S. 2(22)(E) OF THE ACT. WE FIND THAT THE CIT(A) HAS RELIED ON THE DEC ISION OF SPECIAL BENCH OF THIS TRIBUNAL, MUMBAI BENCH IN THE CASE OF ACIT VS. BHAUMICK COLOU R PVT. LTD. (2009) 313 ITR 146 (AT). WE ALSO FIND THAT THE CIT(A) RELIED ON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. HOTEL HILLTOP (2009) 313 ITR 116 (RAJ) . IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW TH AT THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL I .E. BHAUMIK COLOUR PVT. LTD., SUPRA. RESPECTFULLY FOLLOWING THE SAME, WE CONFIRM THE ORD ER OF CIT(A) ON THIS ISSUE. THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 18. IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 19. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.10. 2015 SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16TH OCTOBER, 2015 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT JCIT(OSD), CC-XX, KOLKATA. 2 RESPONDENT M/S. ARJUN ASSOCIATES (P) LTD., 9/1, M IDDLETON STREET, KOLKATA-700 071. 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .