JCIT(OSD), Circle - 4, Kolkata, Kolkata V. M/s. Kanco Enterprises Limited, Kolkata

ITA 17/KOL/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 2050 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 08-08-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 05-01-2012
• Court: TRIBUNAL
• Department Lawyers: SANJIT KR DAS
• Assessee Lawyers: MANISH TIWARI
• Keywords: Depreciation; Source of fund; Deemed to accrue or arise in india; Unabsorbed depreciation
• Section: 80HHC; 115JB; 10B; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B , KOLKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI WAS EEM AHMED, AM] ITA NO.17/KOL/2012 ASSESSMENT YEAR : 2003-04 ( APPELLANT ) (RESPONDENT) J.C.I.T., (OSD), CIRCLE-4, -VERSUS- M/S. KANCO EN TERPRISES LTD. KOLKATA KOLKATA (PAN:AABCK 3030 G) ITA NO.68/KOL/2012 ASSESSMENT YEAR : 2005-06 M/S. KANCO ENTERPRISES LIMITED -VERSUS- J.C.I.T.(O SD), CIRCLE-4, KOLKATA KOLKATA (PAN AABCK 3030 G) (APPELLANT) (RESPONDENT) FOR THE DEPARTMENT : SHRI SANJIT KR.DAS, JCIT, SR.D R FOR THE ASSESSEE : SHRI MANISH TIWARI, FCA DATE OF HEARING : 06.10.2015. DATE OF PRONOUNCEMENT : 08.10.2015. ORDER PER SHRI N.V.VASUDEVAN, JM ITA NO.17/KOL/2012 (REVENUES APPEAL) : THIS IS AN APPEAL BY THE REVENUE AGAINS T THE ORDER DATED 21.10.2011 OF CIT(A)-XIX, KOLKATA REALTING TO A.Y.2003-04. 2. GROUND NO.1 RAISED BY THE REVENUE READS A S FOLLOWS :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , LD. CIT(A) HAS ERRED IN LAW IN DIRECTING THE A.O. TO DELETE THE ADDITION OF RS.6,4 1,000/- ON ACCOUNT OF DEFERRED TAX LIABILITY WITHOUT CONSIDERING THE FACT THAT SUCH EX CESS LIABILITY WAS CREATED IN ORDER TO EXPLAIN THE OTHER ASSETS. 3. THE ASSESSEE IS A COMPANY ENGAGED IN THE BU SINESS OF MANUFACTURING AND SALE OF TEA AND TEXTILES. IN THE COURSE OF ASSESSMENT PROCE EDINGS, THE AO NOTICED THAT THE ASSESSEE HAD IN THE BALANCE SHEET SHOWN UNDER THE H EAD RESERVE ACCOUNT DEFERRED TAX LIABILITY OF RS.5,48,29,000/- AND PROFIT AS PER PROFIT AND LOSS ACCOUNT OF ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 2 RS.27,34,000/-. THUS THE TOTAL AMOUNT CREDITED TO T HE RESERVE ACCOUNT WAS RS.5,75,63,000/- IN THE LIABILITY SIDE OF THE BALAN CE SHEET.. DEFERRED TAX WAS SHOWN IN THE ASSET SIDE OF THE BALANCE SHEET AT RS.5,69,22,0 00/-. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE EXCESS LIABILITY SHOWN IN THE BAL ANCE SHEET HAD TO BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ACCORDINGLY A SUM OF RS.6,41,000/- WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT INCOME-TAX (INCLUDING DEFERRED TAX) WHETHER IT REPRESENTS A PROVISION OR ACTUAL PAYMENT IS NOT PERMISSIBLE DEDUCTION IN COMPUTING TOTAL INCOME. NO SUCH DEDUCTION FOR DEFER RED TAX LIABILITY HAS BEEN CLAIMED BY THE ASSESSEE IN ITS COMPUTATION OF INCOME. IT WA S CONTENDED BY THE ASSESSEE THAT THE AO COMPUTED TOTAL INCOME ON THE BASIS OF PROFIT AS PER PROFIT AND LOSS ACCOUNT AND THE DEFERRED TAX LIABILITY WAS NEVER SHOWN IN THE P ROFIT AND LOSS ACCOUNT AND WAS ONLY AN ADJUSTMENT MADE IN THE PROFIT AND LOSS APPROPRIA TION ACCOUNT. THEREFORE, THE ADJUSTMENT ENTRIES MADE IN THE APPROPRIATION ACCOUN T CANNOT HAVE ANY ADVERSE IMPACT. WITHOUT PREJUDICE TO ABOVE IT WAS CONTENDED BY THE ASSESSEE THAT THE SO-CALLED DISCREPANCY AND/OR CREATION OF EXCESS LIABILITY WAS ARRIVED AT BY THE A.O. WITHOUT APPRECIATING THE ACCOUNTING ENTRIES. THE ADDITION I N THE ASSESSMENT ORDER HAS BEEN MADE ON THE FINDING AS UNDER :- AMOUNT CREDITED TO RESERVE FOR DEFERRED TAX LIABILI TY RS.5,48,29,000 AMOUNT CREDITED TO P & L A/C RS. 27,34,000 RS.5,75,63,000 AMOUNT SHOWN AS DEFERRED TAX ASSETS - RS.5,69,2 2,000 BALANCE RS. 6,41,000 IT WAS SUBMITTED BY THE ASSESSEE THAT AMOUNT OF RS. 5,48,29,000/- CREDITED TO RESERVE ACCOUNT REPRESENTS PROVISION FOR DEFERRED TAX ASSET S ON ABSORBING DEPRECIATION FOR EARLIER YEARS AS CLARIFIED IN NOTE 19 OF SCHEDULE 1 9 OF THE AUDITED FINANCIAL STATEMENTS. IN THAT NOTE IT WAS CLARIFIED THAT PROVISION FOR DE FERRED TAX ASSET HAS BEEN MADE IN THE ACCOUNTS IN VIEW OF AMENDMENT IN TAX LAWS RELATING TO ADJUSTMENT OF BROUGHT FORWARD UNABSORBED DEPRECIATION. ACCORDINGLY, A SUM OF RS.5 ,47,19,000/- HAS BEEN ADDED TO GENERAL RESERVE TOWARDS DEFERRED TAX ASSETS IN ACCO RDANCE WITH AS-22 ISSUED BY THE ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 3 ICAI. THE ADJUSTMENT FOR REVALUATION RESERVE OF RS. 1,10,000/- ARISING ON SALE OF ASSETS REVALUED EARLIER. IT WAS FURTHER SUBMITTED BY THE A SSESSEE THAT OPENING BALANCES OF DEFERRED TAX LIABILITY AND ASSETS AS UNDER ARE ALSO NOT CONSIDERED BY THE A.O. : DEFERRED TAX ASSET RS.12,87,000/- DEFERRED TAX LIABILITY RS.18,18,000/- BALANCE (-) RS. 5,31,000/- THE AMOUNT OF DEFERRED TAX ASSET AT RS.5,69,22,000/ - IN THE ACCOUNTS AS ON 31/3/2003 WAS RECONCILED AS UNDER :- OPENING BALANCE (-) RS. 5,31,000/- DEFERRED TAX ASSET AS PER NOTE 19 OF SCHEDULE 19 RS.5,47,19,000/- TRANSFER FROM P & L A/C. RS. 27,34,000/- RS.5,69,22,000/- IN VIEW OF ABOVE, IT WAS CONTENDED BY THE ASSESSEE THAT THERE WAS NO DIFFERENCE IN THE DEFERRED TAX LIABILITY AND DEFERRED TAX ASSET BY RS .6,41,000/- AS OBSERVED BY THE A.O. AND THERE WAS NO INCOME ELEMENT INVOLVED THEREIN. H ENCE, THE A.O. BE DIRECTED TO DELETE THE ADDITION OF RS.6,41,000/-. 5. THE CIT(A) DELETED THE ADDITION MADE BY THE A O OBSERVING AS FOLLOWS: I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT AND PERUSED THE ASSESSMENT ORDER. I HAVE ALSO GONE THROUGH THE PROFIT AND LOSS ACCOUNT AND BALANCE-SHEET ALONG WITH NOTES ON SCHEDULE FOR THE YEAR ENDED 31/ 3/2003. THE RECONCILIATION STATEMENT FILED BY THE APPELLANT IS ALSO CONSIDERED . ON CAREFUL CONSIDERATION OF THE FACTS AND IN LAW, I FIND FORCE IN THE SUBMISSIO N OF THE APPELLANT THAT THERE IS NO DIFFERENCE OF RS.6,41,000/- IN DEFERRED TAX LIAB ILITY AND DEFERRED TAX ASSETS AS OBSERVED BY THE A.O. THE APPELLANT HAD MADE AFORESA ID ENTRIES IN PURSUANCE TO AS-22 ISSUED BY ICAI AND THESE WERE ONLY THE ADJUST MENT ENTRIES AND NO INCOME ELEMENT IS INVOLVED THEREIN. THERE WAS NO EX CESS LIABILITY OF RS.6,41,000/- AS CONCLUDED BY THE A.O. HENCE, I AM OF THE OPINION THAT THE A.O. WAS NOT JUSTIFIED IN MAKING THE ADDITION OF RS .6,41,000/- AND SAME IS DIRECTED TO BE DELETED. THE GROUND NO.1 IS ALLOWED. 6. AGGRIEVED BY THE ORDER OF CIT(A) THE REVENUE HA S PREFERRED GROUND NO.1 BEFORE THE TRIBUNAL. ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 4 7. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR., WH O RELIED ON THE ORDER OF AO. THE LD. COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOT ICE THAT THE ASSESSEE HAD THREE SOURCES OF INCOME NAMELY INCOME FROM TEA DIVISION, INCOME FROM PACKET TEA DIVISION AND INCOME FROM TEXTILE DIVISION. THE PROFIT AS PER THE PROFIT AND LOSS ACCOUNT WHICH WAS THE STARTING POINT OF COMPUTING OF THE TOTAL IN COME BY THE AO WAS AS FOLLOWS :- (I) TEA DIVISION RS.79,20,613/- (II) TEA PACKET DIVISION RS. 4,719/- (II)TEXTILE DIVISION RS.11,49,343/- TOTAL RS.90,76,675/- THE LD. COUNSEL BROUGHT TO OUR NOTICE THE PROFIT AN D LOSS ACCOUNT OF THE ASSESSEE FOR THE YEAR ENDED 31.03.2003 WHICH SHOWS THE PROFIT OF THE ASSESSEE AS RS.90,75,000/- WHICH IS DULY DECLARED BY THE ASSESSEE IN THE RETUR N WHICH IS THE STARTING POINT OF COMPUTING OF THE TOTAL INCOME ADOPTED BY THE AO. TH E LD. COUNSEL ALSO BROUGHT TO OUR NOTICE THAT THE DEFERRED TAX LIABILITY WAS NOT THE ITEM IN THE DEBIT IN THE PROFIT AND LOSS ACCOUNT AND THERE IS NO QUESTION OF MAKING ANY ADDI TION ON ACCOUNT OF ANY DEFERRED TAX LIABILITY AS THE DEFERRED TAX LIABILITY HAS NEV ER AGAIN REDUCED TO ADD IN THE RETURN OF INCOME. BESIDES THE ABOVE HE ALSO RELIED ON THE FIN DINGS OF THE CIT(A). 8. WE HAVE TAKEN CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIONS AND ARE OF THE VIEW THAT THE IMPUGNED ADDITION COULD NOT HAVE BEEN MADE BY THE AO FOR THE REASON THAT THE DEFERRED TAX LIABILITY HAD NOT COME TO RED UCE THE TOTAL INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME. THE INCOME DECLAR ED IN THE RETURN OF INCOME WAS THE PROFIT OF THE THREE DIVISIONS AS PER THE PROFIT AND LOSS ACCOUNT AS ON 31.03.2003. THE DEFERRED TAX LIABILITY WAS NEVER AN ITEM OF EXPENDI TURE IN THE PROFIT AND LOSS ACCOUNT. THEREFORE, THERE IS NO QUESTION OF EXCESS LIABILITY . THE OTHER REASON GIVEN BY THE CIT(A) THAT THE ADJUSTMENT IN QUESTION IN THE BALAN CE SHEET ITEM CANNOT HAVE ANY IMPACT ON THE INCOME OF THE ASSESSEE IS ALSO A SOUN D BASIS FOR DELETING THE ADDITION MADE BY THE AO. FOR THE REASONS GIVEN ABOVE WE DO N OT FIND ANY MERITS IN THE GROUNDS OF APPEAL RAISED BY THE REVENUE. GROUND NO. 1 ON THE SAME IS DISMISSED. ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 5 9. GROUND NO.2 RAISED BY THE REVENUE READS AS FOLLO WS :- THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, L D. CIT(A) HAS ERRED IN LAW IN ALLOWING THE CLAIM OF THE ASSESSEE IN REGARD TO DED UCTIONS U/S 80HHC WITHOUT CONSIDERING THE FACTS THAT A.O. DEDUCTED AGENCY COM MISSION FOR RS.49,44,426/-, MISCELLANEOUS RECEIPTS FOR RS.50,94,166/- AND ADJUS TMENT OF EARLIER YEARS FOR RS.2,64,000/- FROM PROFITS AND GAINS FROM BUSINESS AS PROVIDED U/S 80HHC AS THE EXPORT WAS IN RESPECT OF TEXTILE DIVISION AND THE ABOVE AM OUNTS ARE NOT RELATED TO TEXTILE DIVISIONS. 10. AT THE TIME OF HEARING OF THE APPEAL, IT WAS NO TICED THAT THE AGENCY COMMISSION, MISCELLANEOUS RECEIPTS AND ADJUSTMENT OF EARLIER YE ARS, WHICH ARE REFERRED TO IN THE GROUND NO.2 RAISED BY THE REVENUE, WERE NOT TREATE D AS PROFITS ELIGIBLE FOR DEDUCTION U/S 80HHC OF THE ACT BY THE CIT(A). IN SUCH SITUATI ON WE ARE OF THE VIEW THAT THERE CAN BE NO GRIEVANCE FOR THE REVENUE AS PROJECTED IN GROUND NO.2. THIS GROUND HAS PROBABLY BEEN TAKEN ON MISCONCEPTION THAT THE AFORE SAID ITEMS OF RECEIPTS WERE ALSO CONSIDERED AS PROFIT ELIGIBLE FOR DEDUCTION U/S 80H HC OF THE ACT. WE THEREFORE DISMISS GROUND NO.2 RAISED BY THE REVENUE. 11 GROUND NOS. 3 AND 4 RAISED BY THE REVENUE READ A S FOLLOWS :- 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , LD. CIT(A) HAS ERRED IN LAW IN DIRECTING THE A.O. TO DETERMINE THE BOOK PROFIT U/S 115JB IN VIEW OF DIRECTION GIVEN TO A.O. RELATING TO DEDUCTION U/S 80HHC SINCE THE DECI SION OF CIT(A) ON ACCOUNT OF DEDUCTION U/S 80HHC WAS ALREADY CHALLENGED. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW IN DIRECTING THE A.O. TO DELETE THE ADDITION MADE ON A CCOUNT OF PROVISIONS FOR GRATUITY TO ASCERTAIN BOOK PROFIT IN TEA DIVISION AND TEXTILE D IVISION SINCE THE ABOVE TWO AMOUNTS REPRESENT ONLY PROVISION AND SUCH PROVISION CANNOT BE TREATED TO BE ACTUAL LIABILITY. THE AO NOTICED THAT WHILE COMPUTING BOOK PROFITS U/ S.115JB OF THE ACT, THE ASSESSEE HAD DEDUCTED FROM THE PROFIT AS PER PROFIT AND LOSS ACCOUNT, PROFITS ON WHICH DEDUCTION U/S.80HHC OF THE ACT WAS TO BE ALLOWED. THE DEDUCT ION U/S.80HHC OF THE ACT IS ALLOWED AT 80% OF THE PROFITS DERVIED FROM THE BUSI NESS OF EXPORT. THERE IS THUS A DIFFERENCE BETWEEN THE PROFITS ON WHICH DEDUCTION IS TO BE ALLOWEDAND DEDUCTION THAT IS ACTUALLY ALLOWED ON SUCH PROFIT. ACCORDING TO THE AO WHAT IS TO BE REDUCED FROM THE PROFIT AS PER PROFIT AND LOSS ACCOUNT IS T HE ELIGIBLE DEDUCTION THAT IS TO BE ALLOWED U/S.80HHC OF THE ACT NOT THE PROFIT ON WHIC H THE ELIGIBLE DEDUCTION IS TO BE ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 6 COMPUTED. IN THE ASSESSMENT ORDER, THE A.O. HAS ME NTIONED THAT IN THE COMPUTATION FOR BOOK PROFIT U/S 115JB, THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80HHC. SINCE, THE DEDUCTION AVAILABLE U/S 80HHC COMES TO NIL, NO DED UCTION IS ALLOWED. FURTHER THE AO ALSO INCREASED THE BOOK PROFIT OF TEA DIVISION A ND TEXTILE DIVISION BY RS.32,27,211/- AND RS.3,50,455/- RESPECTIVELY ON AC COUNT OF PROVISION FOR GRATUITY. .THE A.O. HAS FURTHER MENTIONED THAT IT IS SEEN BY HIM THAT THE ASSESSEE HAS CLAIMED PROVISION FOR GRATUITY UNDER TEA DIVISION FOR RS.32 ,27,211/- AND UNDER THE TEXTILE DIVISION AT RS.3,50,455/-. ON BEING QUESTIONED AS T O WHY THE PROVISION FOR GRATUITY SHOULD NOT BE ADDED BACK BEING THE PROVISIONS, IT W AS SUBMITTED BEFORE THE AO THAT THESE PROVISIONS WERE MADE ON THE BASIS OF ACTUARIA L VALUATION. HENCE, SAME CANNOT BE CONSIDERED FOR THE PURPOSE OF COMPUTATION OF BOOK P ROFIT U/S 115JB OF THE ACT. HOWEVER, THE CONTENTION OF THE ASSESSEE WAS NOT ACC EPTED BY THE A.O. AND HE ADDED THE AMOUNTS OF GRATUITY FOR COMPUTATION OF BOOK PRO FIT U/S 115JB. 11.1. BEFORE CIT(A), THE ASSESSEE SUBMITTED THAT THE A.O. WAS NOT JUSTIFIED IN DENYING THE CLAIM OF DEDUCTION U/S 80HHC FOR THE PU RPOSE OF COMPUTATION OF BOOK PROFIT AS PROVIDED U/S 115JB OF THE ACT. AS PER THE PROVISIONS OF SAID SECTION, THE APPELLANT IS ENTITLED FOR DEDUCTION U/S 80HHC AS PE R CLAUSE (IV) OF EXPLANATION I OF SECTION 115JB. IT WAS FURTHER CONTENDED BY THE ASSE SSEE THAT THE AO WAS ALSO NOT JUSTIFIED IN MAKING ADDITION ON ACCOUNT OF PROVISIO NS FOR GRATUITY DEBITED TO THE PROFIT & LOSS A/C OF TEA DIVISION AND TEXTILE DIVISION. IT WAS ARGUED BY THE ASSESSEE THAT AS PER CLAUSE (C) OF EXPLANATION I OF SECTION 115JB , ONLY THE AMOUNTS SET ASIDE TO PROVISIONS MADE FOR MEETING LIABILITIES ARE TO BE A DDED FOR THE PURPOSE OF COMPUTATION OF BOOK PROFIT, BUT SUCH LIABILITIES SHOULD BE OTHE R THAN ASCERTAINED LIABILITIES. IT WAS POINTED OUT THAT THE PROVISION FOR GRATUITY DEBITED IN P&L A/C OF TEA DIVISION AND TEXTILE DIVISION WERE BASED ON THE REPORT OF ACTUAR IAL VALUATION AND HENCE THE SAID PROVISIONS WERE MADE FOR ASCERTAINED LIABILITIES. I T WAS FURTHER ARGUED THAT IN NOTES TO SCHEDULE 19, IT HAS BEEN SPECIFICALLY REPORTED BY T HE AUDITORS THAT THE YEAR-END ACCRUED LIABILITY ON GRATUITY IS ASCERTAINED AND PR OVIDED ON THE BASIS OF ACTUARIAL VALUATION. IN VIEW OF ABOVE, IT WAS PLEADED THAT T HE A.O. BE DIRECTED TO DELETE THE ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 7 ADDITION MADE TO THE BOOK PROFIT ON ACCOUNT OF PROV ISION FOR GRATUITY AND TO ALLOW DEDUCTION U/S 80HHC. 11.2 . THE CIT(A) ACCEPTED THE PLEA OF THE ASSESSE E WITH THE FOLLOWING OBSERVATIONS: 6.2. I HAVE CONSIDERED THE SUBMISSION OF THE APPE LLANT AND PERUSED THE ASSESSMENT ORDER. ON CAREFUL CONSIDERATION OF THE F ACTS AND IN LAW, I AM OF THE OPINION THAT THE A.O. WAS NOT JUSTIFIED IN MAKING A DDITION ON ACCOUNT OF PROVISION FOR GRATUITY IN TEA DIVISION AND TEXTILE DIVISION FOR THE PURPOSE OF COMPUTATION OF BOOK PROFIT. THE SAID PROVISION HAS BEEN MADE BY THE APPELLANT- COMPANY ON ACTUARIAL VALUATION AND THE LIABILITIES ARE ASCERTAINED LIABILITIES. HENCE, THE SAME CANNOT BE ADDED FOR THE PURPOSE OF COMPUTATION OF BOOK PROFIT. THE A.O. IS DIRECTED TO DELETE THE ADDITION MADE BY HIM ON ACCOUNT OF PROVISION FOR GRATUITY IN TEA DIVISION AND TEXTILE DIVISION. THE A.O. IS ALSO DIRECTED TO ALLOW THE DEDUCTION U/S 80HHC RE-CALCUL ATED BY HIM ON THE BASIS OF DIRECTIONS GIVEN TO HIM IN GROUND NOS.2 & 3 ABOVE. IN VIEW OF ABOVE, THE GROUND NO.4 IS PARTLY ALLOWED AND GROUND NO.5 IS AL LOWED. 12. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVE NUE HAS RAISED GROUND NO.3 & 4 BEFORE THE TRIBUNAL. 13. WE HAVE HEARD THE RIVAL SUBMISSIONS. AS FAR AS GROUND NO.3 RAISED BY THE REVENUE IS CONCERNED THE ISSUE RAISED THEREIN IS NO LONGER RES INTEGRA AND HAS BEEN CONCLUDED BY THE HONBLE SUPREME COURT IN THE CASE OF AJANTA PHARMA LTD. VS. CIT 327 ITR 0305. IN THE AFORESAID DECISION, THE FACTS WERE THAT THE ASSESSEE WHICH WAS A COMPANY TO WHICH THE MINIMUM ALTERNATE TAX PROVISIO NS OF SEC.115JB WERE APPLICABLE, FILED ITS RETURN OF INCOME CLAIMING DED UCTION UNDER S. 80HHC OF THE IT ACT, 1961 (FOR SHORT, 'THE 1961 ACT'). WHILE COMPUT ING THE 'BOOK PROFITS' UNDER S. 115JB OF THE 1961 ACT, THE ASSESSEE CLAIMED REDUCTI ON, UNDER CL. (IV) OF EXPLANATION TO S. 115JB, OF 100 PER CENT EXPORT PROFITS. THE AO A LLOWED ONLY 80 PER CENT OF THE EXPORT PROFITS IN TERMS OF S. 80HHC(1B), AS BEING A LLOWED FOR REDUCTION OF 'BOOK PROFITS' UNDER CL. (IV) OF EXPLANATION TO S. 115JB OF THE 1961 ACT AS THAT WAS THE PROFITS THAT WAS ELIGIBLE FOR DEDUCTION U/S80HHC OF THE ACT. THE CIT(A) HELD THAT 100 PER CENT EXPORT PROFITS EARNED BY THE ASSESSEE AS C OMPUTED UNDER S. 80HHC(3) WAS ELIGIBLE FOR REDUCTION UNDER CL. (IV) OF EXPLANATIO N TO S. 115JB AND NOT 80% OF THE ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 8 EXPORT PROFITS THAT WERE ELIGIBLE FOR DEDUCTION U/S .80HHC(1B) OF THE ACT. THIS ORDER OF CIT(A) WAS UPHELD BY THE TRIBUNAL WHICH TOOK THE VIEW THAT THE AMOUNT OF PROFIT ELIGIBLE FOR DEDUCTION WOULD NOT BE GOVERNED BY S. 80HHC(1B) SINCE THERE IS NO REFERENCE TO THE SAID SUB-SECTION IN CL. (IV) OF TH E EXPLANATION TO S. 115JB. AGAINST THE CONCURRENT FINDING THE DEPARTMENT CARRIED THE MATTE R IN APPEAL TO THE BOMBAY HIGH COURT, WHICH REVERSED THE ORDER OF THE TRIBUNAL. O N FURTHER APPEAL, THE HONBLE SUPREME COURT HAD TO CONSIDER THE FOLLOWING QUESTIO N OF LAW: WHETHER FOR DETERMINING THE 'BOOK PROFITS' IN TERMS OF S. 115JB, THE NET PROFITS AS SHOWN IN THE P&L A/C HAVE TO BE REDUCED BY THE A MOUNT OF PROFITS ELIGIBLE FOR DEDUCTION UNDER S. 80HHC OR BY THE AMOUNT OF DE DUCTION UNDER S. 80HHC ? THE HONBLE SUPREME COURT HELD THAT SECS. 80HHC AND 115JB OPERATE IN DIFFERENT SPHERES. TWO ESSENTIAL CONDITIONS FOR INVOKING S. 8 0HHC(1) ARE THAT ASSESSEE MUST BE IN THE BUSINESS OF EXPORT AND SECONDLY THAT SALE PR OCEEDS OF SUCH EXPORTS SHOULD BE RECEIVABLE IN INDIA IN CONVERTIBLE FOREIGN EXCHANGE . HENCE, S. 80HHC(1) REFERS TO 'ELIGIBILITY' WHEREAS S. 80HHC(3) REFERS TO COMPUTA TION OF TAX INCENTIVE. COMING TO S. 80HHC(1B) IT IS CLEAR THAT AFTER FINANCE ACT, 2000 W.E.F. ASST. YR. 2001-02 EXPORTERS WOULD NOT GET 100 PER CENT DEDUCTION IN RESPECT OF PROFITS DERIVED FROM EXPORTS BUT THAT THEY WOULD GET DEDUCTION OF 80 PER CENT IN THE ASST. YR. 2001-02, 70 PER CENT IN THE ASST. YR. 2002-03 AND SO ON. THUS, S. 80HHC(1B) DEA LS NOT WITH 'ELIGIBILITY' BUT WITH THE 'EXTENT OF DEDUCTION'. SEC. 115JB IS A SELF-CON TAINED CODE. IT TAXES DEEMED INCOME. IT BEGINS WITH A NON OBSTANTE CLAUSE. SEC. 115JB REFERS TO COMPUTATION OF 'BOOK PROFITS' WHICH HAVE TO BE COMPUTED BY MAKING UPWARD AND DOWNWARD ADJUSTMENTS. IN THE DOWNWARD ADJUSTMENT, VIDE CL. ( IV) IT SEEKS TO EXCLUDE 'ELIGIBLE' PROFITS DERIVED FROM EXPORTS. ON THE OTHER HAND, UN DER S. 80HHC(1B) IT IS THE EXTENT OF DEDUCTION WHICH MATTERS. THE WORD 'THEREOF' IN E ACH OF THE ITEMS UNDER S. 80HHC(1B) IS IMPORTANT. THUS, IF AN ASSESSEE EARNS RS. 100 CRORES THEN FOR THE ASST. YR. 2001-02, THE EXTENT OF DEDUCTION IS 80 PER CENT THEREOF AND SO ON WHICH MEANS THAT THE PRINCIPLE OF PROPORTIONALITY IS BROUGHT IN TO S CALE DOWN THE TAX INCENTIVE IN A PHASED MANNER. HOWEVER, FOR THE PURPOSES OF COMPUTA TION OF BOOK PROFITS WHICH COMPUTATION IS DIFFERENT FROM NORMAL COMPUTATION UN DER THE 1961 ACT/COMPUTATION UNDER CHAPTER VI-A, THE UPWARD AND DOWNWARD ADJUSTM ENTS ARE TO BE KEPT IN MIND ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 9 AND IF SO READ IT BECOMES CLEAR THAT CL. (IV) COVER S FULL EXPORT PROFITS OF 100 PER CENT AS 'ELIGIBLE PROFITS' AND THAT THE SAME CANNOT BE REDU CED TO 80 PER CENT BY RELYING ON S. 80HHC(1B). THUS, FOR COMPUTING 'BOOK PROFITS' THE D OWNWARD ADJUSTMENT, IN THE ABOVE EXAMPLE, WOULD BE RS. 100 CRORES AND NOT RS. 90 CRORES. THE IDEA IS TO EXCLUDE 'EXPORT PROFITS' FROM COMPUTATION OF BOOK PROFITS U NDER S. 115JB WHICH IMPOSES MAT ON DEEMED INCOME. THE ABOVE REASONING ALSO GETS SUPPORT FROM THE MEMORANDUM OF EXPLANATION TO THE FINANCE BILL, 2000 . THE ARGUMENT OF THE DEPARTMENT, THAT BOTH 'ELIGIBILITY' AS WELL AS 'DED UCTIBILITY' OF THE PROFIT HAVE GOT TO BE CONSIDERED TOGETHER FOR WORKING OUT THE DEDUCTIO N AS MENTIONED IN CL. (IV) OF EXPLANATION TO S. 115JB HAS NO MERIT. IF THE DICHOT OMY BETWEEN 'ELIGIBILITY' OF PROFIT AND 'DEDUCTIBILITY' OF PROFIT IS NOT KEPT IN MIND T HEN S. 115JB WILL CEASE TO BE A SELF- CONTAINED CODE. IN S. 115JB, AS IN S. 115JA, IT HAS BEEN CLEARLY STATED THAT THE RELIEF WILL BE COMPUTED UNDER S. 80HHC(3)/(3A), SUBJECT TO THE CONDITIONS UNDER SUB-CLS. (4) AND (4A) OF THAT SECTION. THE CONDITIONS ARE ONLY T HAT THE RELIEF SHOULD BE CERTIFIED BY THE CHARTERED ACCOUNTANT. SUCH CONDITION IS NOT A Q UALIFYING CONDITION BUT IT IS A COMPLIANCE CONDITION. THEREFORE, ONE CANNOT RELY UP ON THE LAST SENTENCE IN CL. (IV) OF EXPLANATION TO S. 115JB [SUBJECT TO THE CONDITIONS SPECIFIED IN SUB-CLS. (4) AND (4A) OF THAT SECTION] TO OBLITERATE THE DIFFERENCE BETWEEN 'ELIGIBILITY' AND 'DEDUCTIBILITY' OF PROFITS AS CONTENDED ON BEHALF OF THE DEPARTMENT. THEREFORE CLAUSE (IV) OF THE EXPLANATION TO S. 115JB COVERS FULL EXPORT PROFITS OF 100 PER CENT AS 'ELIGIBLE PROFITS' AND THE SAME CANNOT BE REDUCED TO 80 PER CENT BY RE LYING ON S. 80HHC(1B); ARGUMENT OF THE DEPARTMENT THAT BOTH 'ELIGIBILITY' AS WELL A S 'DEDUCTIBILITY' OF THE PROFIT HAVE TO BE CONSIDERED TOGETHER FOR WORKING OUT THE DEDUCTIO N AS MENTIONED IN CL. (IV) HAS NO MERIT. IN VIEW OF THE ABOVE THE AO IS DIRECTED TO COMPUTE THE BOOKS PROFIT BY CONSIDERING THE AMOUNT CLAIMED AS DEDUCTION BY THE ASSESSEE U/S 80HHC OF THE ACT AND NOT ON THE BASIS OF THE AMOUNT OF DEDUCTION ACT UALLY ALLOWED U/ 80HHC OF THE ACT. 14. AS FAR AS GROUND NO.4 RAISED BY THE REVENUE IS CONCERNED, THE PROVISION OF GRATUITY WAS MADE BY THE ASSESSEE IN THE BOOKS OF A CCOUNT ON THE BASIS OF THE REPORT OF ACTUARIAL VALUATION AND IT CANNOT BE SAID THAT LIAB ILITY OF THE ASSESSEE ON ACCOUNT OF ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 10 GRATUITY WAS UNASCERTAINED LIABILITY. THEREFORE, TH E SAID SUM CANNOT BE ADDED TO THE BOOK PROFITS AS PER CLAUSE (C) OF EXPLANATION 1 TO SECTION 115JB OF THE ACT. GROUND NOS. 3 AND 4 RAISED BY THE REVENUE ARE THEREFORE DI SMISSED. 15. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. ITA NO.68/KOL/2012 (ASSESSEES APPEAL A.Y.2005-06) THIS IS AN APPEAL BY THE ASSESSEE AGAINS T ORDER DATED 21.10.2011 OF CIT(A)- XIX, KOLKATA RELATING TO A.Y.2005-06. 16 GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ AS FOLLOWS :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, LD. CIT(A) IS COMPLETELY MISDIRECTED IN CONFIRMING THE ORDER OF THE ASSESSIN G OFFICER TO COMPUTE BOOK PROFIT FROM TEA DIVISION AT RS.18,15,643/- U/S 115JB OF I.T.ACT , 1961, WITHOUT GIVING EFFECT TO RULE 8 OF I.T.RULES, 1962 FOR AGRICULTURAL INCOME EXEMPT U/S 10(1) OF THE ACT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, LD. CIT(A) SHOULD HAVE ALLOWED REDUCTION OF INCOME EXEMPT U/S 10 AS PER EX PLANATION 1(II) ATTACHED TO SECTION 115JB (2) OF I.T.ACT, 1961 IN THE NATURE OF AGRICUL TURAL INCOME TO BE COMPUTED APPLYING RULE 8 TO COMPOSITE BOOK PROFIT FROM THE SALE OF TE A GROWN AND MANUFACTURES BY THE ASSESSEE COMPANY. 17. THE ASSESSEE HAD DISCLOSED BOOK PROFIT U/S 115 JB AT RS.15,89,745/- WHICH CONSISTED OF BOOK PROFIT OF TEA DIVISION AT RS.11,0 4,505/- AND BOOK PROFIT OF TEXTILE DIVISION AT RS.4,85,240/-. AS AGAINST THE BOOK PROF IT OF RS.,15,89,745/- SHOWN BY THE ASSESSEE, THE A.O. HAS CALCULATED THE BOOK PROFIT A T RS.23,00,880/-. IT WAS SUBMITTED BY THE ASSESSEE BEFORE CIT(A) THAT AS FAR AS THE BO OK PROFIT OF TEXTILE DIVISION IS CONCERNED, THE AO HAS ACCEPTED THE BOOK PROFIT AS D ECLARED BY THE ASSESSEE. HOWEVER, IN THE CASE OF TEA DIVISION, THE AO HAS CO NSIDERED 100% OF COMPOSITE INCOME FOR THE PURPOSE OF BOOK PROFIT WHEREAS THE A SSESSEES CLAIM WAS THAT ONLY 40% OF PROFIT IS TO BE INCLUDED U/S 115JB IN PURSUA NCE TO PROVISIONS OF RULE 8 OF INCOME TAX RULES AND BALANCE 60% IS TO BE TREATED A S AGRICULTURAL INCOME AND EXEMPT U/S 10(1) OF THE I.T.ACT. IT WAS CONTENDED BY THE A SSESSEE THAT EXPRESSION BOOK PROFIT FOR THE PURPOSE OF LEVY OF TAX U/S 115JB HA S BEEN DEFINED IN EXPLANATION ATTACHED TO SECTION 115JB. ACCORDING TO SUCH DEFINI TION, BOOK PROFIT MEANS THE NET ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 11 PROFIT AS SHOWN IN THE P&L A/C FOR THE RELEVANT PRE VIOUS YEAR AS INCREASED AND DECREASED BY ITEMS SPECIFIED THEREIN. SO FAR AS RED UCTION/DECREASE OF NET PROFIT AS PER P&L A/C IS CONCERNED, ATTENTION WAS INVITED TO ITEM (II), WHICH SAYS THAT THE AMOUNT OF INCOME TO WHICH ANY OF THE PROVISIONS OF SECTION 10 (OTHER THAN PROVISIONS CONTAINED IN CLAUSE 23G THEREOF) OR SECTION 10A OR SECTION 10B OR SECTION 11 OR SECTION 12 APPLY, IF ANY SUCH AMOUNT IS CREDITED TO THE P&L A/C, WILL BE REDUCED FROM THE NET PROFIT. IN VIEW OF ABOVE, IT WAS PLEADED BY THE ASSESSEE THAT THE A.O. BE DIRECTED TO TREAT 60% OF COMPOSITE INCOME AS AGRICU LTURAL INCOME EXEMPTED U/S10(1) OF THE ACT. 18. THE CIT(A) HOWEVER UPHELD THE ORDER OF THE AO, OBSERVING AS FOLLOWS: 3.2. I HAVE CONSIDERED THE SUBMISSION OF THE APPEL LANT AND PERUSED THE ASSESSMENT ORDER. ON CAREFUL CONSIDERATION OF THE F ACTS AND IN LAW, I AM OF THE OPINION THAT THE AO WAS JUSTIFIED IN TREATING THE C OMPOSITE INCOME OF TEA DIVISION AS LIABLE FOR TAX U/S 115JB OF THE ACT. I AGREE WITH THE VIEW TAKEN BY THE AO THAT THERE IS NOTHING IN RULE 8 OF THE I.T.R ULES WHICH SAYS THAT 60% OF COMPOSITE INCOME WILL BE TREATED AS AGRICULTURAL IN COME. IN VIEW OF ABOVE, THE ACTION OF THE A.O. IS UPHELD. THE GROUND NO.1 IS DI SMISSED. 19. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THIS TRIBUNAL. 20. WE HAVE HEARD THE RIVAL SUBMISSIONS. SECTION 11 5JB OF THE ACT IN EXPLANATION 1 (II) WHICH GIVES THE LIST OF AMOUNTS THAT HAS TO BE REDUCED FROM THE BOOK PROFITS, PROVIDES AS FOLLOWS :- (II) THE AMOUNT OF INCOME TO WHICH ANY OF THE PROV ISIONS OF [SECTION 10 (OTHER THAN THE PROVISIONS CONTAINED IN CLAUSE (38) THEREOF)] OR SE CTION 11 OR SECTION 12APPLY, IF ANY SUCH AMOUNT IS CREDITED TO THE PROFIT AND LOSS ACCO UNT; OR SECTION 295 (2) (B) PROVIDES AS FOLLOWS :- 295 POWER TO MAKE RULES. (1) THE BOARD MAY, SUBJECT TO THE CONTROL OF THE CE NTRAL GOVERNMENT, BY NOTIFICATION IN THE GAZETTE OF INDIA, MAKE RULES FOR THE WHOLE O R ANY PART OF INDIA FOR CARRYING OUT OF THE PURPOSES OF THIS ACT. ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 12 (2) IN PARTICULAR, AND WITHOUT PREJUDICE TO THE GEN ERALITY OF THE FOREGOING POWER, SUCH RULES MAY PROVIDE FOR ALL OR ANY OF THE FOLLOWING M ATTERS :- (A) THE ASCERTAINMENT AND DETERMINATION OF ANY CLASS OF INCOME; (B) THE MANNER IN WHICH AND THE PROCEDURE BY WHICH THE INCOME SHALL BE ARRIVED AT IN THE CASE OF (I) INCOME DERIVED IN PART FROM AGRICULTURE AND IN PART FROM BUSINESS; (II) PERSONS RESIDING OUTSIDE INDIA; [(III) AN INDIVIDUAL WHO IS LIABLE TO BE ASSESSED U NDER THE PROVISIONS OF SUB-SECTION (2) OF SECTION 64; PURSUANT TO THE AFORESAID PROVISION OF RULE 8 OF IT RULES 1962 PROVIDES THAT IN THE CASE OF INCOME DERIVED FROM SALE OF TEA GROWN AND M ANUFACTURED BY THE SELLER IN INDIA, THE INCOME SHALL BE COMPUTED AS IF THEY WERE INCOME DERIVED FROM BUSINESS AND 40% OF SUCH INCOME SHALL DEEMED TO BE INCOME LIABLE TO TAX. IT IS THUS CLEAR FROM THE READING OF RULE 8(1) THAT 60% OF THE INCOME COMPUTE D AS AFORESAID IS TO BE TREATED AS AGRICULTURAL INCOME EXEMPT U/S 10(1) OF THE ACT. SI NCE 60% OF THE INCOME IS EXEMPT U/S 10(1) OF THE ACT. THE ASSESSEES CLAIM IS THAT 60% OF THE INCOME WHICH IS EXEMPT IN TERMS OF RULE 8 OF THE RULES, IS NOTHING BUT INC OME EXEMPT U/S.10(1) OF THE ACT AND HENCE THE SAME SHOULD BE REDUCED FROM THE BOOK PROF ITS UNDER EXPLANATION 1 CLAUSE (II) LISTING AMOUNTS TO BE REDUCED U/S 115JB OF THE ACT. WE ARE OF THE VIEW THAT THE STAND TAKEN BY THE REVENUE DESERVES ACCEPTANCE. TH E CBDT IN THE CONTEXT OF SEC.115J OF THE ACT HAD IN CIRCULAR NO. 495 DATED 2 2ND SEPTEMBER, 1987 IN PARA 36.4 TAKEN THE SAME VIEW: 36.4 IN THE CASE OF A TEA COMPANY WHERE INCOME IS DERIV ED FROM THE SALE OF TEA GROWN AND MANUFACTURED BY THE SELLER, ONLY 40 PER C ENT OF SUCH INCOME IS LIABLE TO TAX UNDER R. 8 OF THE IT RULES, 1962. SIXTY PER CENT OF THE INCOME, WHICH IS DISREGARDED FOR THE PURPOSES OF TAXATION IS CONSIDERED TO BE AGRICU LTURAL INCOME AND IS, THEREFORE, EXEMPT UNDER THE PROVISIONS OF CHAPTER III. THE NET PROFIT DETERMINED IN ACCORDANCE WITH SCHEDULE VI TO THE COMPANIES ACT, 1956, HAS TO BE ADJUSTED, INTER ALIA, IN ACCORDANCE WITH CL. (F) AND SUB- CL. (II) OF THE EX PLANATION TO S. 115J(1). IN THE CASE OF THE TEA COMPANIES, THE BOOK PROFIT SHOULD BE COMPUT ED BY MAKING ALL THE ADJUSTMENTS REFERRED TO IN THE EXPLANATION. HOWEVER, NO ADJUSTM ENT IN RESPECT OF CL. (F) AND SUB-CL. (II) OF THE EXPLANATION IS TO BE MADE FOR THE AGRIC ULTURAL INCOME EARNED BY TEA COMPANIES FROM TEA BUSINESS. 40 PER CENT OF THE ADJ USTED AMOUNT ARRIVED AT IN THIS MANNER WILL BE THE BOOK PROFIT OF THE TEA COMPANY I N ACCORDANCE WITH R. 8 OF THE IT RULES. THE PROVISIONS OF SEC.115JB OF THE ACT ARE ON THE S AME BASIS AS THAT OF SE.115J OF THE ACT. THERE IS NO REASON WHY THE AFORESAID PRINCIPL E LAID DOWN IN THE CBDT CIRCULAR, ITA NO.17/KOL/2012 & ITA.NO.68/KO L/2012 M/S. KANCO ENTERPR ISES LIMITED. A.YRS.2003-04 & 2005-06 13 WHICH IS IN TUNE WITH THE PROVISIONS OF LAW REFERRE D TO ABOVE, SHOULD NOT BE APPLIED TO THE COMPUTATION OF BOOKS PROFITS U/S.115JB OF THE A CT. WE THEREFORE HOLD THAT THE DETERMINATION OF BOOKS PROFITS U/S.115JB OF THE ACT SHOULD BE WORKED OUT BY THE AO ON THE LINES INDICATED IN THE CIRCULAR. WE HOLD TH AT THE DETERMINATION OF BOOKS PROFITS U/S.115JB OF THE ACT SHOULD BE WORKED OUT AS DONE B Y THE ASSESSEE AND IN ACCORDANCE WITH THE DIRECTIONS LAID DOWN IN THE CIRCULAR REFER RED ABOVE. WE HOLD AND DIRECT ACCORDINGLY AND ALLOW GROUNDS RAISED BY THE ASSESSE E. 21. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. 22. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED AND THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 08.10.2015. SD/- SD/- [WASEEM AHMED] [N.V.VASUDEVAN] ACCOUNTANT MEMBER JUDICIAL MEMBE R DATE: 08.10.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . M/S. KANCO ENTERPRISES LIMITED, JASMIN TOWER, 3 RD FLOOR, 31, SHAKESPEARE SARANI, KOLKATA-700001. 2 THE JCIT (OSD), CIRCLE-4, KOLKATA. 3 . THE CIT-II, KOLKATA, 4. THE CIT(A)-XIX, KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES