Banarasi Holding Pvt. Ltd., Kolkata V. ITO, Ward-13(1), Kolkata

ITA 1520/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9547 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 21-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN J
• Assessee Lawyers: MANISH TIWARI
• Keywords: Period of limitation; Deemed to accrue or arise in india; Non compliance
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER AND SHRI DR.A.L.SAINI, ACCOUNTANT MEMBER ITA NO.1520-1521/KOL/2016 ASSESSMENT YEARS :2004-05 & 2010-11 BANARASI HOLDING PVT. LTD., P-3, NEW CIT ROAD, KOLKATA-700 073 [ PAN NO.AABCB 4048 H ] V/S . ITO, WARD-13(1), AAYKAR BHAWAN, POORVA, 110, SHANTI PALLY, KOLKATA-107 /APPELLANT .. / RESPONDENT / /BY ASSESSEE SHRI MANISH TIWARI, FCA /BY RESPONDENT MD. GHAYAS UDDIN, JCIT-DR /DATE OF HEARING 04-01-2017 ! /DATE OF PRONOUNCEMENT 13-01-2017 / O R D E R SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER:- BOTH APPEALS BY THE ASSESSEE ARE AGAINST THE DIFFE RENT ORDERS DATED 14.03.2016 & 16.03.2016 PASSED BY COMMISSIONER OF I NCOME TAX (APPEALS)-5, KOLKATA FOR ASSESSMENT YEARS 2004-05 & 2010-11 RESPECTIVELY. 2. SINCE THE ASSESSEE, FACTS AND RELIEF SOUGHT IN B OTH THE APPEALS ARE SIMILAR AND IDENTICAL, THEREFORE, SAID APPEALS HEAR D TOGETHER AND ARE BEING DISPOSED OF BY WAY OF CONSOLIDATE ORDER FOR THE SAK E OF CONVENIENCE. ITA NO.1520-1521/KOL/2016 A.YS. 04-05 & 10-11 BANARASI HOLDING PVT. LTD. VS. ITO WD-13(1) KOL. PAGE 2 FIRST WE SHALL TAKE UP ITA NO.1520/KOL/2016 FOR A.Y. 2004-05 . 3. ASSESSEE HAS RAISED AS MANY AS FIVE GROUNDS AMON GST WHICH GROUND NO.1 AND 2 RAISED CHALLENGING THE EX PARTE ORDER BY CIT(A) AND GROUND NO. 3 AND 4 ARE CHALLENGING THE ORDER OF CIT (A) ON MERITS. 4. AT THE TIME OF HEARING LD. AR FOR ASSESSEE SUBMI TS INITIALLY ASSESSEE FILED ITS RETURN OF INCOME ON 30.10.2004 AND SAID R ETURN WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO OF THE ACT) ON 24.10.2005. THEREAFTER ASSESSMENT WAS REOP ENED DULY FOLLOWING THE PROCEDURE AS SET OUT U/S. 148 OF THE ACT, WHERE IN IN RESPONSE, ASSESSEE COULD NOT PRODUCE THE RELEVANT DETAILS BEF ORE ASSESSING OFFICER. ACCORDINGLY, AO DETERMINED THE INCOME OF ASSESSEE A T 23,46,664/- AND PASSED AN ORDER TO THE EFFECT U/S. 144 OF THE ACT. IT WAS FURTHER SUBMITTED BY LD. AR THAT ASSESSEE HAS ENGAGED AN AUTHORIZED R EPRESENTATIVE TO PROSECUTE ITS CASE BEFORE CIT(A) BUT UNFORTUNATELY, NONE APPEARED REPRESENTING THE ASSESSEE AND REFERRED TO IN PARA-1 .1 OF THE IMPUGNED ORDER AND URGED TO REMIT THE ISSUE TO THE FILE OF A O. 5. ON CONTRARY, LD. DR SUBMITS MANY OPPORTUNITIES W ERE AFFORDED TO ASSESSEE BY AO IN REOPENING PROCEEDINGS BUT ASSESSE E COULD NOT SUBMIT CONFIRMATION STATEMENT OR EVIDENCE IN SUPPORT OF CL AIMS BEFORE AO AND REFERRED TO ORDER OF AO. LD. DR ALSO SUBMITS THAT L D. CIT(A) GRANTED SEVERAL ADJOURNMENTS TO ASSESSEE BUT ASSESSEE COULD NOT AVAIL THE SAME AND RELIED ON THE ORDER OF AUTHORITIES BELOW. 6. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL S AVAILABLE ON RECORD. WE FIND THAT ASSESSEE FILED ITS RETURN OF I NCOME IN 2004 AND AO REOPENED SAID ASSESSMENT ON A REASON THAT INCOME OF 20,56,14,814/- ESCAPED ASSESSMENT DULY FOLLOWING PROCEDURE AS CONT EMPLATED U/S. 148 OF ITA NO.1520-1521/KOL/2016 A.YS. 04-05 & 10-11 BANARASI HOLDING PVT. LTD. VS. ITO WD-13(1) KOL. PAGE 3 THE ACT. HOWEVER, ASSESSEE COULD NOT AVAIL THE OPPO RTUNITY AND THAT NOTICE U/S 148 OF THE ACT WAS SERVED ON 13.08.2007 FOR NON COMPLIANCE OF THE SAME AND AO COMPLETED THE ASSESSMENT FOR BEST O F HIS JUDGMENT. BEFORE CIT(A) ALSO AUTHORIZED REPRESENTATIVE REPRES ENTING ASSESSEE APPEARED ON 23.08.2011 AND 17.12.2012 AND OTHER OCC ASIONS NONE COULD REPRESENT THE CASE OF ASSESSEE. LD. AR SUBMITTED TH AT THE ASSESSMENT WAS REOPENED IN THE YEAR 2007, AFTER A PERIOD OF TH REE YEARS FROM DATE OF FILING ORIGINAL RETURN AND THE ASSESSMENT WAS COMPL ETED IN 2008 U/SECTION 144 OF THE ACT AND THE ASSESSEE COULD NOT GATHER IN FORMATION TO FILE THE SAME BEFORE THE AO. LIKEWISE, BEFORECIT(A), IT IS N OTICED THE AR APPEARED BEFORE CIT(A) ON TWO OCCASIONS AND REMAINED ABSENT ON OTHER FOUR OCCASIONS. IT CLEARLY SHOWS BEFORE THE AUTHORITIES BELOW, THE ASSESSEE COULD NOT AVAIL THE OPPORTUNITY AS AFFORDED BY THE AUTHORITIES BELOW. IN VIEW OF THE SUBMISSIONS OF THE BOTH PARTIES AND TAK ING INTO CONSIDERATION THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE ISSUES INVOLVED IN GROUND NOS 3 & 4 REQUIRE FRESH ADJUDICATION. ACCOR DINGLY, WE DEEM IT APPROPRIATE TO RESTORE THE SAID ISSUES TO THE FILE OF AO. WE ARE CONSCIOUS OF THE FACT THAT ASSESSMENT IS OF 2004-05, THEREFOR E, WE DIRECT THE ASSESSEE TO CO-OPERATE WITH THE AO IN THE PROCEEDIN GS WITHOUT SEEKING ADJOURNMENT AND ASSESSEE IS LIBERTY TO FILE ANY EVI DENCE IN SUPPORT OF ITS CLAIM. ACCORDINGLY, GROUND NOS. 1 AND 2 ARE ALLOWE D FOR STATISTICAL PURPOSE. 7. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSE. NOW, WE SHALL DEAL WITH ITA NO.1521/KOL/2016 FOR A. Y.2010-11 . 8. IN THIS APPEAL VARIOUS GROUNDS HAVE BEEN RAISED OUT OF WHICH GROUNDS NO. 2 TO 5 WERE NOT PRESSED, AND THEREFORE, SAME ARE DISMISSED AS NOT PRESSED. GROUND NO.6 IS OF GENERAL NATURE AN D DOES NOT REQUIRE SEPARATE ADJUDICATION. ITA NO.1520-1521/KOL/2016 A.YS. 04-05 & 10-11 BANARASI HOLDING PVT. LTD. VS. ITO WD-13(1) KOL. PAGE 4 9. THE ONLY EFFECTIVE GROUND IS AS TOGETHER CIT(A) IS JUSTIFIED IN HOLDING THE ADDITION MADE BY AO U/S 41(1) OF THE ACT. THE A O ON PERUSAL OF THE SCHEDULE-8 OF THE BALANCE-SHEET AS STOOD ON 31.03.2 010 FOUND 1 AND 5 LAKH RESPECTIVELY TO M/S EK ESTATE & DEVELOPERS PVT . LTD. AND M/S PROBAL TRADERS PVT. LTD. RESPECTIVELY AS LIABILITY. ACCORD ING TO AO, ASSESSEE FURNISHED WRONG ADDRESSES OF M/S EK ESTATE & DEVELO PERS PVT. LTD. AND M/S PROBAL TRADERS PVT. LTD. AND LETTERS COULD NOT SERVED ON SUCH ENTITIES. THE AO SHOW-CAUSED ASSESSEE TO FURNISH COMPLETE ADD RESSES OF SUCH CONCERNS AND FOR NON-SUBMISSION AND HE TREATED THE SAME AS DEMAT PROFIT AND ADDED SAME TO THE INCOME OF ASSESSEE U/SECTION 41(1) OF THE ACT. 10. IN FIRST APPELLATE PROCEEDINGS, CIT(A) HAVING O BTAINED REMAND REPORT FROM THE ASSESSING OFFICER AND DISMISSED THE ISSUE ON HAND FOR NON-SUBMISSION OF RELEVANT DOCUMENTS IN REBUTTING T HE ADDITION. 11. BEFORE US LD. AR SUBMITS THAT ASSESSEE DID NOT WRITTEN OFF THE LIABILITY AND SAID LIABILITY NOR CEIZED TILL NOW AN D ARGUED THERE WAS NO CESSATION OR REMISSION OF LIABILITY AND SAID ADDITI ON NEEDS TO BE DELETED AND PLACED RELIANCE THE ORDER OF THIS TRIBUNAL IN I TA NO.734/KOL/2015 IN THE CASE OF PABITRA BISWAS VS. ITO DATED 06.01.2016. ON THE OTHER HAND, LD. DR RELIED ON THE ORDER OF AUTHORITIES BELOW. 12. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA LS AVAILABLE ON RECORD. WE FIND THE FACTS OF INSTANT CASE AND THE C ASE LAW CITED BY LD. AR ARE SIMILAR TO THE ISSUE ON HAND, WHEREIN THE TRIBU NAL HELD THE ADDITION MADE BY ASSESSING OFFICER U/S. 41(1) OF THE ACT IS NOT SUSTAINABLE AND RELEVANT PORTION IS REPRODUCED HEREIN BELOW:- 6. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ALTHOUGH THE LD. DR HAS STRONG LY RELIED ON THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) IN SUPPORT OF THE REVENUES CASE ON TH IS ISSUE AND REFERRED TO THE CASE LAWS RELIED UPON BY THE LD. CIT(APPEALS) ARE DIFFERENT FROM THE FACTS INVOLVED IN THE PRESENT CASE. ON THE OTHER HAND, THE FACTS INVOLVED IN THE CASE OF SHRI SAHADEB KUNDU DECIDED BY THE COORDINATE BENCH OF THIS TRIBUNAL VIDE ITS ORDER DATED 07.05.2 015 PASSED IN ITA NOS. 1345 & 1446/KOL/2011 AS CITED BY THE LD. COUNSEL FOR THE A SSESSEE ARE SIMILAR TO THE FACTS OF THE PRESENT CASE, WHEREIN THE SIMILAR ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 41(1) WAS HELD TO BE UNSUSTAINABLE BY THE TRIBUNAL FOR TH E FOLLOWING REASONS GIVEN IN PARAGRAPH NO. 5 OF ITS ORDER:- ITA NO.1520-1521/KOL/2016 A.YS. 04-05 & 10-11 BANARASI HOLDING PVT. LTD. VS. ITO WD-13(1) KOL. PAGE 5 5. WE FIND FROM THE ABOVE FACTS THAT THESE ARE TRA DE CREDITORS ADMITTEDLY COMING FROM EARLIER YEARS BEING OPENING BALANCE. WE ALSO FIND FROM THE RECORD THAT THE ASSESSEE HAS NOT WRITTEN-OFF THE LIABILITY OR LIABILITY HAS NOT CEASED OR REMITT ED. IN SUCH CIRCUMSTANCES, NOW WE HAVE TO GO TO THE PROVISIONS OF SECTION 41(1) OF THE ACT AND SE T HE LEGAL POSSESSION. SECTION 41(1) WOULD APPLY IN A CASE WHERE THERE HAS BEEN REMISSION OR C ESSATION OF LIABILITY DURING THE YEAR UNDER CONSIDERATION SUBJECT TO THE CONDITIONS CONTAINED I N THE STATUTE BEING FULFILLED. ADDITIONALLY, SUCH CESSATION OR REMISSION HAS TO BE DURING THE PREVIOU S YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. IN THE PRESENT CASE, BOTH ELEM ENTS ARE MISSING. THERE WAS NOTHING ON RECORD TO SUGGEST THERE WAS REMISSION OR CESSATION OF LIABILITY THAT TOO DURING THE PREVIOUS YEAR 2007-08 RELEVANT TO THE ASSESSMENT YEAR 2008-09 WHI CH WAS THE YEAR UNDER CONSIDERATION. IT IS UNDOUBTEDLY A CURIOUS CASE. EVEN THE LIABILITY ITSE LF SEEMS UNDER SERIOUS DOUBT. THE AO UNDERTOOK THE EXERCISE TO VERIFY THE RECORDS OF THE SO-CALLED CREDITORS. MANY OF THEM WERE NOT FOUND AT ALL IN THE GIVEN ADDRESS. SOME OF THEM STA TED THAT THEY HAD NO DEALING WITH THE ASSESSEE. IN ONE OR TWO CASES, THE RESPONSE WAS THA T THEY HAD NO DEALING WITH THE ASSESSEE NOR DID THEY KNOW HIM. OF COURSE, THESE INQUIRIES WERE MADE EX PARTE AND IN THAT VIEW OF THE MATTER THE ASSESSEE WOULD BE ALLOWED TO CONTEST SUC H FINDINGS. NEVERTHELESS, EVEN IF SUCH FACTS WERE ESTABLISHED THROUGH BIPARTE INQUIRIES, THE LIA BILITY AS IT STANDS PERHAPS HOLDS THAT THERE WAS NO CESSATION OR REMISSION OF LIABILITY AND THAT , THEREFORE, THE AMOUNT IN QUESTION CANNOT BE ADDED BACK AS DEEMED INCOME UNDER SECTION 421(1) O F THE ACT. THIS IS ONE OF THE STRANGE CASES WHERE EVEN IF THE DEBT ITSELF IS FOUND TO BE NON-GENUINE FROM THE VERY INCEPTION, AT LEAST IN TERMS OF SECTION 41(1) OF THE ACT THERE IS NO CU RE FOR IT. HENCE, WE HAVE NO ALTERNATIVE EXCEPT TO CONFIRM THE FINDINGS OF CIT(A) IN RESPECT OF DEL ETION BUT REVERSE QUA THE CONFIRMATION OF ADDITION. 13. IN THE PRESENT CASE THE ASSESSEE FURNISHED THE ADDRESSES OF M/S. E.K ESTATES & DEVELOPERS PVT. LTD AND M/S. PROBAL T RADERS PVT. LTD. BUT, HOWEVER, ACCORDING TO THE AO, THE ADDRESSES OF SUCH CONCERNS PROVED TO BE WRONG ON VERIFICATION. BUT IN THE AFOREMENTIONE D CASE LAW AS RELIED ON BY THE LD.AR THAT IN ORDER TO ATTRACT THE PROVISION S OF SECTION 41(1) SHALL BE REQUIREMENT OF REMISSION OR CESSATION OF SUCH LI ABILITY DURING THE YEAR UNDER CONSIDERATION. WE FIND THAT NEITHER SUCH REMI SSION OR CESSATION BY THE ASSESSEE NOR THE AO COULD BRING ON RECORD ANYTH ING TO SHOW THAT THE SAID LIABILITY CEASED OR REMITTED. THEREFORE, IN V IEW OF THE SAME BY RELYING ON THE DECISION/ORDER OF THIS CO-ORDINATE BENCH IN THE CASE OF PABITRA BISWAS IN ITA NO. 734/KOL/2015 FOR THE AY 2010-11 A ND SAHADEB KUNDU IN ITA NOS.1345/KOL/2011 AND ITA NO.1446/KOL/2011 F OR THE A.Y 2008-09 THE ADDITION MADE U/S. 41(1) OF THE ACT IS LIABLE T O BE DELETED. 14. IN THIS REGARD, WE MAY REFER TO THE DECISION IN THE CASE OF NITIN S.GARG OF HONBLE HIGH COURT OF GUJARAT REPOR TED IN (2012) 22 TAXMANN.COM 59(GUJ). THE RELEVANT PARAS ARE REP RODUCED HEREIN BELOW FOR BETTER UNDERSTANDING: 15. IN THE CASE BEFORE US. IT IS NOT BEEN ESTABLISH ED MAT THE ASSESSEE HAS WRITTEN OFF THE OUTSTANDING BOOKS OF ACCOUNT, THE A PPELLATE TRIBUNAL IS JUSTIFIED IN TAKING THE VIEW THAT AS ASSESSEE HAD C ONTINUED TO SHOW THE ADMITTED AMOUNTS AS LIABILITIES IN ITS BALANCE SHEE T THE SAME CANNOT BE ITA NO.1520-1521/KOL/2016 A.YS. 04-05 & 10-11 BANARASI HOLDING PVT. LTD. VS. ITO WD-13(1) KOL. PAGE 6 TREATED AS ASSESSMENT OF LIABILITIES. MERELY BECAUS E THE LIABILITIES ARE OUTSTANDING FOR LAST MANY YEARS, IT CANNOT BE INFER RED THAT THE SAID LIABILITIES HAVE SEIZED TO EXIST. THE APPELLATE TRIBUNAL HAS RI GHTLY OBSERVED THAT THE ASSESSING OFFICER SHALL HAVE TO PROVE THAT THE ASSE SSEE HAS OBTAINED THE BENEFITS IN RESPECT OF SUCH TRADING LIABILITIES BY WAY OF REMISSION OR CESSATION THEREOF WHICH IS NOT THE CASE BEFORE US. MERELY BECAUSE THE ASSESSEE OBTAINED BENEFIT OF REDUCTION IN THE EARLI ER YEARS AND BALANCE IS CARRIED FORWARD IN THE SUBSEQUENT YEAR, IT WOULD NO T PROVE THAT THE TRADING LIABILITIES OF THE ASSESSEE HAVE BECOME NON-EXISTEN T. 16 MOREOVER, AS POINTED OUT IN THE CASE OF SUGAULI SUGAR WORKS (P) LTD (SUPRA), VIDE THE LAST FIVE LINES F THE PARAGRAPH-6 OF THE JUDGEMENT, THE QUESTION WHETHER THE LIABILITY IS ACTUALLY BARRED B Y LIMITATION IS NOT A MATTER WHICH CAN BE DECIDED BY CONSIDERING THE ASSESSEE'S CASE ALONE BUT HAS TO BE DECIDED ONLY IF THE CREDITOR IS BEFORE THE CONCERNE D AUTHORITY. IN THE ABSENCE OF THE CREDITOR, IT IS NOT POSSIBLE FOR THE AUTHORI TY TO COME TO A CONCLUSION THAT THE DEBT IS BARRED AND HAS BECOME UNENFORCEABL E. THERE MAY BE CIRCUMSTANCES WHICH MAY ENABLE THE CREDITOR TO COME WITH A PROCEEDING FOR ENFORCEMENT OF THE DEBT EVEN AFTER EXPIRY OF THE NO RMAL PERIOD OF LIMITATION AS PROVIDED IN THE LIMITATION ACT.' 15. IN THE AFORESAID DECISION THE HONBLE HIGH COUR T OF GUJARAT WAS PLEASED TO HOLD THAT IF THE ASSESSEE CONTINUES TO SHOW THE ADMITTED AMOUNTS AS LIABILITIES IN ITS BALANCE SHEE T AND THE SAME CANNOT BE TREATED AS SEIZED TO EXIST. IN THE P RESENT CASE ALSO THE ASSESSEE HAS SHOWN THE LIABILITIES TO BE P AID. THEREFORE, WE ARE OF THE VIEW THE FACTS OF THE HON BLE HIGH COURT OF GUJARAT IN THE CASE OF SUPRA IS ALSO APPLI CABLE TO THE PRESENT FACTS OF THE CASE. 16. IN ANOTHER DECISION IN THE CASE OF CIT VS. ALVA RES & THOMAS JAYANT PATEL & MRS. B.V NAGARITHNA REPORTED IN [ 2016] 69 TAXMANN. COM 257 (KAR) HELD THAT IF THE PARTIES COULD NOT BE TRACED AND THE DEBTS COULD NOT BE VERIFIED IN SU CH CIRCUMSTANCES ALSO NO ADDITION ON ACCOUNT OF CESSAT ION OF LIABILITY IS ATTRACTED. THE RELEVANT PORTION IS REP RODUCED HEREIN BELOW:- 9. IN OUR VIEW, EVEN IF WE ACCEPT THE CONTENTION OF THE REVENUE THAT THE PARTY COULD NOT BE TRACED AND THEREFORE DEBT COULD NOT BE VERIFIED THEN ALSO, BY NO STRETCH OF IMAGINATION CAN IT BE HELD THAT IT WOULD SATISFY THE REQUIREMENT OF CESSATION OF LIABILITY. IN LEGAL PAR LANCE, MERELY BECAUSE THE CREDITOR COULD NOT BE TRACED ON THE DATE WHEN THE V ERIFICATION WAS MADE, SAME IS NOT A GROUND TO CONCLUDE THAT THERE WAS CES SATION OF THE LIABILITY. CESSATION OF THE LIABILITY HAS TO BE CESSATION IN L AW, OF THE DEBT TO BE PAID BY THE ASSESSEE TO THE CREDITOR. THE DEBT IS RECOVERAB LE EVEN IF THE CREDITOR HAS EXPIRED, BY THE LEGAL HEIRS OF THE DECEASED CREDITO R. UNDER THE CIRCUMSTANCES, IN THE PRESENT CASE, IT CAN HARDLY B E SAID THAT THE LIABILITY HAD CEASED. IF THE LIABILITY HAD NOT CEASED OR THE BENEFIT WAS NOT TAKEN BY THE ASSESSEE IN RESPECT OF SUCH TRADE LIABILITY, IN OUR VIEW, THE CONDITIONS ITA NO.1520-1521/KOL/2016 A.YS. 04-05 & 10-11 BANARASI HOLDING PVT. LTD. VS. ITO WD-13(1) KOL. PAGE 7 PRECEDENT WERE NOT SATISFIED FOR INVOKING SECTION 4 1(1) OF THE ACT IN THE INSTANT CASE. 17. IN THE PRESENT CASE ACCORDING TO THE AO THE ASS ESSEE PRODUCED FULL DETAILS OF SUNDRY CREDITORS AND THE SAID ADDRESSES COULD NOT BE VERIFIED DURING THE COURSE OF ASSESSME NT PROCEEDINGS AS THE ADDRESSES PROVED TO BE WRONG AND AS SUCH HE ADDED THE SAID AMOUNT U/S. 41(1) OF THE ACT. TH EREFORE, IN OUR VIEW THAT THE FACTS AND CIRCUMSTANCES OF THE AB OVE CASES ARE APPLICABLE TO THE PRESENT CASE AND THEREBY THE ADDITION REQUIRES TO BE DELETED. 18. RESPECTFULLY FOLLOWING THE LAW LAID DOWN BY TH E HONBLE HIGH COURTS OF GUJARAT AND KARNATAKA AND THE ORDER OF THE CO- ORDINATE BENCH OF KOLKATA TRIBUNAL IN THE CASES OF SUPRA, WE DELETE THE IMPUGNED ADDITION AS MADE BY THE AO U/S. 41(1) OF THE ACT AND CONFIRMED BY THE CIT-A. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. 19. IN THE RESULT, ASSESSEES APPEAL IN ITA NO.1520 /KOL/2016 FOR THE AY 2004-05 IS ALLOWED FOR STATISTICAL PURPOSE AND THAT OF ITA NO. 1521/KOL/2016 FOR THE AY 2010-11 IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT 13/ 01/2017 SD/- SD/- (DR.A.L. SAINI) (S.S.VISWANETHRA RAVI) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) DATE/ '#$- 13 / 01 /201 7 ITA NO.1520-1521/KOL/2016 A.YS. 04-05 & 10-11 BANARASI HOLDING PVT. LTD. VS. ITO WD-13(1) KOL. PAGE 8 *DKP / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-BANARASI HOLDING PVT. LTD. P-3, NEW CIT R OAD, KOLKATA-700 073 2. /REVENUE-ITO WARD-13(1), AAYKAR BHAWAN POORVA 110, SHANTI PALLY, KOL-107 3. #+#,- . / CONCERNED CIT KOLKATA 4. .- / CIT (A) KOLKATA 5. 123 44,-, ,-!, / DR, ITAT, KOLKATA 6. 378 9: / GUARD FILE. BY ORDER/ , /TRUE COPY/ / # ,-!,