DCIT, CC-XIII, Kolkata, Kolkata V. M/s. Janki Textile & Industries Ltd., Kolkata

ITA 1877/KOL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99706 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2015
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 06-10-2010
• Court: TRIBUNAL
• Department Lawyers: ADHIR KR BAR LD CITLD
• Assessee Lawyers: A K TULSIAN FCA LD
• Keywords: Business income; Document seized; Speculation loss; Documents seized
• Section: 234B; 43(5); 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : KOLKATA [BEFORE HON BLE SHRI MAHAVIR SINGH, JM & HON BLE SHRI B.P.JAIN , AM ] I.T.A NO . 1 877 /KOL/201 0 A.Y : 200 8 - 09 D.C.I.T, C.C XIII, KOLKATA VS. M/S. JANKI TEXTILE & INDUSTRIES LTD PAN: AABC J3131F ( APPELLANT /DEPARTMENT ) ( RESPONDENT ) I.T.A NO . 1878/KOL/2010 A.Y : 2008 - 09 D.C.I.T, C.C XIII, KOLKATA VS. M/S. UMANG VINCOM PVT. LTD PAN: AAACU3058R ( APPELLANT/DEPARTMENT) ( RESPONDENT ) FOR THE APPELLANT: S HRI ADHIR KR. BAR, LD. CIT/LD. DR FOR THE RESPONDENT : SHRI A.K TULSIAN, FCA, LD.AR DATE OF HEARING: 29 - 06 - 2015 DATE OF PRONOUNCEMENT: 13/08/2015 ORD ER SHRI B.P. JAIN, AM: TH ESE TWO APPEAL S OF THE REVENUE ARISE FROM THE TWO DIFFERENT ORDERS OF LD. CIT(A) - CENTRAL - II, KOLKATA EACH DATED 30 - 07 - 2010 FOR THE ASSESSMENT YEAR 2008 - 09 IN THE CASES OF M/S. JANKI TEXTILE & INDUSTRIES LTD IN ITA NO.1877/KOL/2 010 & M/S. UMANG VINCOM PVT. LTD IN ITA NO. 1878/KOL/2010. SINCE THE ISSUES INVOLVED IN BOTH THE APPEALS OF THE REVENUE ARE IDENTICAL , THE Y WERE HEARD TOGETHER AND THEREFORE, THE SE ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE L D.DR PRAYED BEFORE US TO ARGUE THE APPEAL IN ITA NO.1878 /KOL/2010 FOR THE ASSESSMENT YEAR 2008 - 09 IN THE CASE OF UMANG VINCOME PVT. LTD FIRS T. SINCE THE ISSUES IN THE PRESENT APPEAL ARE IDENTICAL IN THE CASE OF M/S. UMANG VINCOM PVT. LTD IN ITA NO.1878/K OL/2010, THE ORDER OF THE BENCH SHALL BE IDENTICALLY APPLICABLE IN THE CASE OF M/S. JANKI TEXTILE & INDUSTRIES LTD IN ITA NO.1877/KOL/2010 FOR THE ASSESSMENT YEAR 2008 - 09. 3. THE LD.DR WAS PERMITTED TO ARGUE THE APPEAL IN THE CASE OF M/S. UMANG VINCOM P VT. LTD IN ITA NO.1878/KOL/2010 FOR THE ASSESSMENT YEAR 2008 - 09. THE REVISED GROUNDS OF APPEAL FILED BY THE REVENUE ARE RE - PRODUCED HEREIN BELOW: - 4. REVISED GROUNDS OF APPEAL IN ITA NO. 1878/KOL/2010 A.Y 2008 - 09 (BY THE REVENUE) 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN HOLDING THAT BY VIRTUE OF MAIN SOURCE OF INCOME OF THE ASSESSEE BEING INCOME FROM OTHER SOURCES . EXPLANATION TO SECTION 73 OF THE ACT WAS NOT APPLICABLE TO THE CASE OF THE ASSESSE E WITHOUT APPRECIATING THAT THE AO HAD ESTABLISHED WITH FACTS AND FIGURES THAT THE 2 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ MAIN SOURCE OF INCOME OF THE ASSESSEE COMPANY WAS SHARE TRADING AND NOT INCOME FROM OTHER SOURCES. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE L D. CIT(A) HAS ERRED IN HOLDING THAT EXPLANATION TO SECTION 73 OF THE ACT WAS NOT APPLICABLE BY CONSIDERING THE INCOME DECLARED U/S. 132(4) OF THE ACT AS INCOME FROM OTHER SOURCES AND WITHOUT CONSIDERING THE TRUE NATURE OF THE ACTIVITY CARRIED ON BY THE A SSESSEE AND ALSO WITHOUT DECIDING THE PRINCIPLE BUSINESS OF THE ASSESSEE. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE SHARE TRADING LOSS IS NOT A DEEMED SPECULATIVE LOSS UNDER EXPLANATIO N TO SECTION 73 AND THE ASSESSEE WILL BE ENTITLED TO SET OFF SUCH LOSS WITH OTHER BUSINESS INCOME AND INCOME FROM OTHER SOURCES. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN INVOKING THE 2 ND PROVISO TO SE CTION 132B OF THE ACT IN THE INSTANT CASE WHICH IS APPLICABLE TO THE TIME LIMITE WITHIN WHICH AN APPLICATION MADE BY THE ASSESSEE FOR RELEASE OF ASSETS, THE NATURE AND SOURCE OF ACQUISITION OF WHICH IS EXPLAINED TO BE SATISFACTION OF THE AO CAN BE DECIDED AND WITHOUT CONSIDERING THAT THIS PROVISO HAS NO APPLICATION AT ALL TOWARDS ADJUSTMENT OF THE SEIZED ASSETS WITH THE LIABILITY OF THE ASSESSEE AND ALSO THAT NO SEIZURE OF CASH WA MADE IN THE CASE OF THE ASSESSEE. 6. THAT ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW THE LD.CIT(A) HAS ERRED IN PRESUMING THAT THE SEIZED CASH OF RS.10,06,00,000/ - PRAYED BY THE APPELLANT FOR APPLICATION TOWARDS THE TAX LIABILITY WAS ACCEPTED BY THE AO WHEN THE PROVISIONS OF ACT DOES NOT STIPULATE FOR ANY SUCH PRESUMPTION. 7. THAT ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN HOLDING THAT SEIZED CASH OF RS.10,06,00,000/ - IN THE HANDS OF M/S. SHOPARNA BROTHERS PVT. LTD SHOULD BE HELD AS PAID U/S. 140A ON 06.08.2008 TOWAR DS ADMITTED TAX LIABILITY OF THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD FILED ITS RETURN ON 29.09.2008 AND HENCE THE LIABILITY U/S. 140A COULD NOT HAVE CRYSTALLIZED PRIOR TO THAT DATE AND FURTHER THAT SUCH LIABILITY CANNOT BE AUTO MATICALLY ADJUSTED WITH THE CASH SEIZED FROM ANOTHER PERSON. 8. THAT ON THE FACTS AND IN THE CIRCUMSTANCES ON THE CASE THE CIT(APPEAL) HAS ERRED IN LAW IN RELYING UPON THE DECISION OF BOMBAY BENCH IN THE CASE OF ACIT VS. CONCORD COMMERCIAL PVT. LTD 95 ITD 117 IN INTERPRETING THE GROSS TOTAL INCOME AND HOLDING THAT THE EXPLANATION TO SECTION 73 OF THE ACT WAS NOT APPLICABLE TO THE PRESENT CASE. 9. THAT THE DEPARTMENT CRAVES LEAVE TO ADD, MODIFY OR ALTER ANY OF THE GROUNDS OF APPEAL AND/OR ADDUCE ADDITION AL EVIDENCE AT THE TIME OF HEARING OF THE CASE. 3 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ 5 . GROUND NOS. 1 TO 3 & 8 ARE WITH RE GARD TO ISSUE OF EXPLANATION TO SECTION 73 OF THE ACT . 6 . BRIE F FACTS OF THE CASE ARE THAT A SEARCH U/S. 132 OF THE I.T ACT WAS CARRIED OUT IN THE PREMISES OF ASE SSEE ON 28 - 03 - 2008 . CERTAIN DOCUMENTS RELATING TO THE ASSESSEE WERE SEIZED DURING THE SEARCH. THEREAFTER THE ASSESSEE FILED THE RETURN OF INCOME ON 29 - 9 - 08 DECLARING A TOTAL INCOME OF RS.29,64,19,690. THE AO STATED THAT IN A DISCLOSURE PETITION BEFOR E DIT WING THE ASSESSEE DISCLOSED AN INCOME OF R S.30 CRORES FOR THE FY 2007 - 08 TO BUY PEACE AND TO AVOID LONG DRAWN LITIGATION. THE AO STATED THAT THE ASSESSEE HAD FURTHER REQUESTED IN THE SAID PETITION THAT THE AMOUNT OF R S. 17,50,99,994 LYING IN THE BANK ACCOUNT OF A GROUP CONCERN M/S. SHOPARNA BROTHERS P.LTD AND SUBSEQUENTLY SEIZED BY THE DEPARTMENT MAY BE ADJUSTED AGAINST TAX LIABILITY OF THE ASSESSEE ARISING FROM SUCH DISCLOSURE. THE AO ALSO STATED THAT THE ASSESSEE HAS S H OWN A SHARE TRADING LOS S OF RS.42,21,015, INCOME FROM MONEY LENDING BUSINESS OF R S. 4,43,482, SHORT TERM CAPITAL GAIN OF RS.1,92,224 AND DISCLOSED INCOME U/S. 132(4) OF THE I.T ACT AT RS.30 CRORES. AO RELIED UPON THE DECISION OF HON BLE JURISDICTIONAL CALCUTTA HIGH COURT IN THE CASE OF EASTER AVIATION & INDUSTRIES LTD REPORTED IN 208 ITR 1023(CAL) AND COMPARED THE LOSS OF R S.42,21,015 WITH DIVIDEND INCOME OF RS. 9,46,889 AND CAPITAL GAIN OF R S.1,97,224/ - . THE ASSESSING OFFICER [AO] FURTHER STATED THAT THE ASSESSEE COMPANY DOES NOT FALL WITHIN THE CATEGORY OF THE FIRST EXCEPTION TO EXPLANATION TO SECTION 73 , WHERE IT IS SAID THAT A COMPANY WHOSE GROSS TOTAL INCOME CONSISTS MAINLY OF INCOME IS CHARGEABLE UNDER THE HEADS INTEREST ON SECURITIES , INCOME FROM HOUSE PROPERTY , CAPITAL GAINS AND I NCOME FROM OTHER SOURCES . THE AO FOUND THAT THOUGH THE ASSESSEE IS A NON BANKING FINANCIAL COMPANY(NBFC) , IT DOES NOT MEAN THAT THE PRINCIPAL BUSINESS OF THE ASSESSEE IS OF MONEY LENDING. FOR DETERMINING THE PRINCIPAL BUSINESS OF THE ASSESSEE THE MEMORANDUM & ARTICLES OF ASSOCIATION OF THE COMPANY, PAST HISTORY OF THE COMPANY , CURRENT AND PAST YEAR S DEPLOYMENT OF CAPITAL, BREAK UP OF INCOME (QUANTUM OF LOSS OR INCOME) AND NATURE OF ACTIVITIES OF THE COMPANY IN EACH OF THE CONSTIT UENT BUSINESS IS REQUIRED TO BE COMPARED IN DETERMINING THE PRINCIPAL BUSINESS OF THE COMPANY. THE AO COMPARED THE DEPLOYMENT OF F UNDS OF THE ASSSESSEE UTILIZED IN VARIOUS ACTIVITIES IN THE ASSESSMENT YEAR S 2007 - 08 AND 2008 - 09 AND FOUND THAT THE ASSE SSEE DEPLOYED 23.11% OF ITS FUND IN THE BUSINESS OF MONEY LENDING AND 76.89% IN OTHER THAN MONEY LENDING BUSINESS IN AY 2007 - 08 AND DEPLOYED 30.62% OF ITS FUNDS IN MONEY LENDING BUSINESS AND 69.38% IN OTHER THAN MONEY LENDING BUSINESS IN THE AY 2008 - 09 THE AO FOUND THAT IN THE IN THE ASSESSMENT YEAR UNDER APPEAL THE ASSESSEE HAS DEPLOYED ITS 4 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ FUND MORE THAN 2 TIMES IN ACTIVITIES MORE THAN MONEY LENDING BUSINESS AND THEREFORE, THE PRINCIPAL BUSINESS OF THE ASSESSEE CANNOT BE THE MONEY LENDING BUSINE SS. HE HELD THAT THE ASSESSEE DOES NOT FALL WITHIN THE EXCEPTION TO EXPLANATION TO SECTION 73 OF THE I.T ACT . THUS, HE SEPARATED THE NON SPECULATIVE BUSINESS INCOME FROM GRANTING OF LOANS AND ADVANCES OF RS.4,43,482/ - AS PER P & L A/C AND DEEMED THE REMAINING LOSS OF RS.42,21,015 FROM SHARE TRADING BUSINESS AS SPECULATIVE LOSS UNDER SECTION 73 OF THE I.T ACT. 7. THE LD. CIT(A) HAS ACCEPTED THE ARGUMENTS MADE BY THE ASSESSEE AND HELD THAT EXPLANATION TO SECTION 73 ARE NOT APPLICABLE IN THE PRESE NT CASE. 8. THE LD.DR HAS SUPPORTED THE ORDER OF THE AO. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE WRITTEN SUBMISSION MADE BEFORE THE LD.CIT(A) AND THE ORDER OF THE LD. CIT(A). 9 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE FACTS OF THE CASE. WE AGREE WITH THE VIEWS OF THE LD.CIT(A). WE FIND THAT I N THE CASE OF GODAVARI CAPITAL LTD VS. DCIT (2004( 91 ITD 274 (HYD) AS RELIED UPON BY THE ASSESSEE , IT WAS HELD THAT THE PROVISIONS OF SECTION 73 ARE INVOKED ONLY IF THER E IS A REQUIREMENT OF SETTING OFF THE SPECULATIVE BUSINESS PROFIT AGAINST SPECULATIVE BUSINESS LOSS. IF THERE IS NO SPECULATIVE BUSINESS PROFIT AS ENVISAGED U/S. 43(5) OF THE I.T ACT THE PROVISION OF SECTION 73 CANNOT BE INVOKED AND IF SECTION 73 CANNOT C OME IN OPERATION, THE EXPLANATION CANNOT BE APPLIED TO DETERMINE THE NATURE OF INCOME WITHOUT APPLICABILITY OF SECTION. IN THE CASE OF AMAN PORTFOLIO (P) LTD VS. DCIT (2005) 92 ITD 324 (DELHI) (SMC) - I) , RELIED UPON BY THE ASSESSEE, WHEREIN IT WAS HELD THA T THE EXPLANATION TO SECTION 73 CANNOT BE INVOKED IF NO DEVICE WAS ADOPTED IN INDULGING IN SUCH SHARE TRANSACTIONS WITH OBJECT OF REDUCING TAXABLE INCOME. THE HON BLE JURISDICTIONAL CALCUTTA HIGH COURT HAVE ANALYZED THE CIRCULAR NO.204 DATED 24 - 07 - 1976 OF CBDT . IN THE CASE OF CIT VS. ARVIND INVESTMENT LTD REPORTED IN 192 ITR 365(CAL) HELD THAT THE OBJECT AS STATED IN THE SAID CIRCULAR IS TO CURB THE DEVICE TO MANIPULATE AND REDUCE THE TAXABLE INCOME OF A COMPANY UNDER THE MANAGEMENT OF A CONTROLLING GROUP O F PERSONS. THE CIRCULAR HAS CLEARLY STATED IN PARAGRAPH 19.1 THAT THE BUSINESS OF PURCHASE AND SALE OF SHARES BY COMPANIES WHICH ARE NOT INVESTMENT OR BANKING COMPANY OR COMPANIES CARRYING ON BUSINESS OF GRANTING LOANS AND ADVANCES WILL BE TREATED ON THE SAME FOOTING AS SPECULATION BUSINESS. THUS, THE CIRCULAR DOES NOT LEAVE ANY ROOM FOR DOUBT THAT THE EXPLANATION WILL APPLY TO THE BUSINESS OF PURCHASE AND SALE OF SHARES OF CERTAIN COMPANIES. IN VIEW OF THIS JUDGMENT OF HON BLE JURISDICTIONAL HIGH COURT, THE 5 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ DECISIONS OF ITAT - HYDER A BAD AND ITAT - DELHI (SMC) RELIED UPON BY THE ASSESSEE HAVE NO APPLICATION IN THE CASE OF ASSESSEE. FOR THE APPLICABILITY OF EXPLANATION TO SECTION 73 THE ONLY FACT THAT IS REQUIRED TO BE ESTABLISHED IS THAT THE ASSESSEE IS NEITHER A COMPANY EARNING MAIN INCOME FROM SOURCES OTHER THAN BUSINESS NOR A COMPANY WHOSE PRINCIPAL BUSINESS IS THE BUSINESS OF MONEY LENDING, IF ANY PART OF THE BUSINESS OF THE ASSESSEE IS FOUND TO BE CONSISTING OF TRADING IN SHARES.. FURTHER IN THE CASE OF ACIT VS. C ONCORD COMMERCIAL P.LTD REPORTED IN ( 2005 ) 95 ITD 117 (MUM) , HON BLE SPECIAL BENCH HAVE HELD IN PARA 50 THAT THE MEANING OF THE EXPRESSION GROSS TOTAL INCOME USED IN THE EXPLANATION TO S. 73 HAS TO BE UNDERSTOOD AS GIVEN IN S. 80B(5) O F THE I.T ACT. S PER S. 80B(5) OF THE ACT, GROSS TOTAL INCOME MEANS THE TOTAL INCOME COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT, BEFORE MAKING ANY DEDUCTION UNDER CHAPTER VI - A OF THE I.T ACT . THEREFORE, THE INCOME IS CHARGEABLE UNDER VARIOUS HEADS AS INCOME FROM HOUSE PROPERTY , PROFITS AND GAINS OF BUSINESS AND PROFESSION , CAPITAL GAIN , INCOME FROM OTHER SOURCES ETC. UNDER CHAPTER IV OF THE I.T ACT SHOULD BE COMPUTED AND LOSS, IF ANY, UNDER SUCH HEADS OF INCOME, SHOULD BE SET OFF OR CARRIED FORWARD IN ACCORDANCE WITH THE PROVISIONS CONTAINED IN S.70 & 80 OF THE I.T ACT BEFORE ARRIVING AT THE GROSS TOTAL INCOME U/S. 80B(5) OF THE I.T ACT. IN THE PRESENT CASE, THE AO HAS CONSIDERED THE INCOME OF RS. 30 CRORES, DISCLOSED U/S. 132(4) BY T HE ASSESSEE AS INCOME FROM OTHER SOURCES BECAUSE SUCH INCOME WAS DECLARED TO BUY PEACE AND THERE IS NO EVIDENCE IN THE FORM OF SEIZED DOCUMENTS AS PER THE ASSESSMENT ORDER, TO CORRELATE SUCH INCOME WITH ANY BUSINESS TRANSACTIONS. THIS INCOME IS NOT DECLAR ED AGAINST ANY UNDISCLOSED ASSETS SUCH AS CASH, JEWELLERY ETC. AS PER THE ASSESSMENT ORDER SO THAT IT COULD BE DEEMED AS AN INCOME U/S. 69 ETC OF THE ACT . IT HAS BEEN HELD THAT THE INCOME DECLARED U/S. 132(4 ) IS REQUIRED TO BE TAXED UNDER THE HEAD INCOM E FROM OTHER SOURCES . IF THE INCOME DECLARED U/S. 132(4) IS CONSIDERED TO BE INCOME FROM OTHER SOURCES , THEN THE MAIN INCOME OF ASSESSEE WOULD BE INCOME FROM OTHER SOURCES AND ASSESSEE COMPA N Y WOULD BE COVERED UNDER THE FIRST EXCEPTION TO EXPLANATION BELOW SECTION 73 AND BY VIRTUE OF MAIN INCOME ASSESSEE BEING THE INCOME FROM OTHER SOURCES , THEN EXPLANATION TO SECTION 73 IS NOT APPLICABLE. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD .CIT(A) / WE UPHOLD THE SAME. THE GROUND NOS. 1 TO 3 & OF THE REVENUE S APPEAL ARE DISMISSED. 6 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ 10. AS REGARD GROUND NO.7 THE BRIEF FACTS OF THE CASE ARE THAT THE AO HAS ISSUED A NOTICE OF DEMAND U/S. 156 OF THE I.T ACT ON 30 - 12 - 09 ALONG WITH THE ASSESSMENT ORDER AS PER FOLLOWING CALCULATION OF TAX PAYABLE BY THE ASSESSEE : - TOTAL INCOME 300640700 TAX 90152746 SURCHARGE 9015276 EDU. CESS 2975041 (TAX + SURCHARGE + EDU. CESS) = 102143081 LESS: TDS 95,358 102047723 ADD: INTEREST U/S. 234B 14848 750 ADD: INTEREST U/S. 234C 5080956 121977432 LESS: TAX PAID 100613003 TAX PAYABLE 21364429 10.1 THE AO HAS STATED IN HIS ORDER THAT THE ASSESSEE HAD REQUESTED BEFORE HIM THAT INTEREST U/S. 234B OF THE ACT SHOULD NOT BE CHARGED FROM 0 1/ 0 5/ 20 08 BECA USE ASSESSEE HAD MADE A REQUEST TO ADJUST THE CASH SO SEIZED FROM M/S. SHOPARNA BROS. P.LTD TOWARDS ESTIMATED TAX LIABILITIES OF THE ASSESSEE IN THE STATEMENT RECORDED U/S. 132(4) DURING THE COURSE OF SEARCH ON 0 8 - 04 - 08 . THE AO DID NOT ACCEPT THE REQUEST OF THE ASSESSEE TO CONSIDER THE SEIZED CASH AS PAYMENT OF ADVANCE TAX BECAUSE THE ADVANCE TAX FOR THE YEAR, IN WHICH TOOK PLACE , WAS TO BE PAID BY THE ASSESSEE SEPARATELY AND IT CANNOT BE ADJUSTED AGAINST THE SEIZED CASH. THE AO INFORMED THE ASSESS EE VIDE CBDT INSTRUCTION F.NO. 286/105/2005 - I.T (INV - II) DATED 13.07.2006 THAT PROVISIONS OF LAW DO NOT PERMIT APPLICATION OF SEIZED CASH AGAINST THE ADVANCE TAX LIABILITY OF THE ASSESSEE FOR THE YEAR IN WHICH THE SEARCH TOOK PLACE. THEREFORE, THE AO CHARGED INTEREST U/S. 234B OF THE ACT FROM 01 - 04 - 2008 UPTO THE DATE OF ASSESSMENT. THE SEARCH HAD TAKEN PLACE ON 28 - 03 - 08. 11. THE LD.CIT(A) HAS ACCEPTED THE ARGUMENTS MADE BY THE ASSESSEE AND HELD THAT CALCULATION OF INTEREST U/S. 234B THE AO SHOULD HAVE CREDITED THE TAX OF R S.10,06,00,000 FROM 06 - 08 - 2008 BECAUSE SUBSEQUENT DELAY IN SUCH CREDIT WAS A DELAY ON PART OF THE AO BEYOND THE TIME ALLOWED BY THE INCOME TAX ACT. THEREFORE, HE DIRECTED THE AO TO CALCULATE THE INTEREST U/S. 234B ACCORDINGLY. 7 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ 12 . T HE LD.DR HAS SUPPORTED THE ORDER OF THE AO. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE WRITTEN SUBMISSION MADE BEFORE THE LD.CIT(A) AND THE ORDER OF THE LD. CIT(A). 13. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE FACTS OF THE CASE. THE UNDISPUTED FACTS IN THE PRESENT CASE ARE THAT A LETTER DATED 28 - 05 - 2008 OF SEARCH WAS SUBMITTED TO THE AO FOR ADJUSTMENT OF CASH. IT WAS INFORMED THAT DURING COURSE OF SEARCH CASH AMOUNT OF RS. 17,51,79,994/ - WAS SEIZED ON 8 - 4 - 08 . AN AM OUNT OF RS. 15 CRORE WAS DISCLOSED U/S. 132(4) OF THE I.T ACT WHERE ADJUSTMENT WITH SEIZED CASH WAS SOUGHT. THE ASSESSEE SUBMITTED THAT ASSESSEE SHOULD NOT BE PENALIZED BY CHARGING OF INTEREST U/S.234B UNDER SUCH CIRCUMSTANCES. THE ASSESSEE REFERRED TO THE PROVISIONS OF SECTION 132B(1)(I) AND SUBMITTED THAT AS REFERRED IT INCLUDES THE LIABILITY WITH REGARD TO THE ASSESSMENT FOR THE YEAR, IN WHICH SEARCH WAS INITIATED OR REQUISITION WAS MADE. THE ASESSEE, THEREFORE, SUBMITTED THAT THE TAX LIABILITY FO R THE YEAR IN WHICH THE SEARCH WAS CONDUCTED MAY BE ADJUSTED FROM THE SEIZED CASH. THE LD. COUNSE L FOR THE ASSESSEE HAS REFERRED TO THE FOLLOWING DECISIONS IN SUPPORT OF HIS CONTENTIONS IN THE CASES OF I TAT KOLKATA IN THE CASE OF DCIT , CC V, KOL VS. SHRI SITARAM AGARWAL (HUF) , KOLKATA IN ITA NO.101/KOL/2007 , IN THE CASE OF ACIT ,CC XXX, KOL VS. PURANMAL AGARWAL IN IT(SS) A NO.114/KOL/08 AND IN THE CASE OF DCIT, CC - XXIV, KOL VS. SRI AMIT SEKSARIA IN ITA NO. 253/KOL/09 , ITAT MUMBAI IN THE CASE OF S AT PA U L D. AGARWAL (HUF) VS. ACIT (1999) 105 TAXMAN 71 AND IN THE CASE OF NITIN M. JADIA VS. ACIT (1999) 107 TAXMAN 203 . IN THE CASE OF ACIT VS. SHAILESH NATUBHAI DESAID (2000) REPORTED IN 109 TAXMAN 330(AHD.), WHEREIN IT HAS BEEN HELD THAT IF UNEXPLAINED CASH S EIZED DURING SEARCH OPERATION AT THE BUSINESS PREMISES OF THE FIRM IS ASSESSED IN ASSESSEE S HAND, THEN THE SAME COULD BE ADJUSTED TOWARDS ADVANCE TAX PAYMENT AND CREDIT THEREFORE CAN BE ALLOWED TO THE ASSESSEE ON HIS REQUEST . 13.1 IN SUCH CIRCUMSTANCES AND FACTS OF THE CASE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY HELD THAT CREDIT OF RS.10,06,00,000/ - W.E.F 06 - 08 - 2008 BECAUSE SUBSEQUENT DELAY IN SUCH CREDIT WAS A DELAY ON THE PART OF THE ASSESSING OFFICER BEYOND THE TIME AL LOWED BY THE INCOME TAX ACT. HOWEVER, RELEVANT PARTS OF THE ORDER OF THE LD.CIT(A) FOR THE SAKE OF CONVENIENCE ARE REPRODUCED HEREIN BELOW: - 4. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSIONS OF APPELLANT. THE SEARCH U/S. 132 OF THE I.T ACT TOO K PLACE ON 28 - 03 - 20 08 . THE STATEMENT OF SHRI SANCDEEP SHARMA U/S. 132(4) WAS RECORDED ON 08.04.2008 IN WHICH AFTER DISCLOSING AN INCOME OF R S. 15 CRORE ON BEHALF OF THE APPELLANT, 8 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ SHRI SANDEEP SHARMA SUBMITTED ON BEHALF OF APPELLANT THAT THE BALANCE LYING IN THE BANK ACCOUNT OF SISTER CONCERN M/S. SHOPAMA BROTHERS PVT. LTD , WHICH WAS CONVERTED INTO A CASH SEIZURE BY THE DEPARTMENT ON 08.04.2008, MAY BE ADJUSTED AGAINST THE TAX LIABILITY , WHICH MAY ARISE OUT OF RETURN OF INCOME TO BE FILED BY THE ASS E SSEE. I FIND THAT CASH ITSELF WAS SEIZED ON 08.04.2008 AND THE REQUEST OF ADJUSTMENT OF TAX LIABILITY BY OR ON BEHALF OF APPELLANT AGAINST CASH SEIZED WAS EARLIE ST MADE ON 08.04.2008 . THE LAST DATE OF FINANCIAL Y E AR 2007 - 08 RELEVANT TO ASSESSMENT YEAR 2008 - 09 , IS 31.03.2008 AND THEREFORE BY NO STRETCH OF IMAGINATION IT CAN BE SAID THAT FOR A SEIZURE MADE ON 08.04.2008 THE ONUS CAN NEVER BE ON DEPARTMENT TO APPLY SUCH CASH FOR THE ADVANCE TAX PAYMENT OF APPELLANT AS FOR ASSESSMENT YEAR 2008 - 09 WHEN THE LA ST DATE OF PAYMENT OF ADVANCE TAX IS 31.03.2008 . MOREOVER, THE APPELLANT WAS NOT SURE OF THE EXACT TAX LIABILITY AND THEREFORE THE REQUEST ON 08.04.2008 FOR ADJUSTMENT OF TAX LIABILITY WAS MADE IN RESPECT OF TAX LIABILITY THAT MAY ARISE AS PER THE RETURN OF INCOME YET TO BE FILED BY APPELLANT FOR ASSESSMENT YEAR 2008 - 09 . APPELLANT SUBMITTED A LETTER DATED 28 - 05 - 2008 ALONG WITH THE LETTER OF SHOPARNA BROTHERS P VT. LTD REQUESTING THE ASSESSING OFFICER TO ADJUST A TAX LIABILITY OF RS.10,06,00,000/ - OF APPE LLANT FOR ASSESSMENT YEAR 2008 - 09 FROM THE CASH SEIZED ON 08 - 04 - 2008 . APPELLANT FILED THE RETURN OF INCOME ON 29.09.2008 IN WHICH APPELLANT RETURNED A TOTAL INCOME OF R S.29,64,19,690/ - AFTER SETTING OFF THE RECORDED SHARE TRADING LOSS AGAINST THE INCOME D ISCLOSED U/S. 132(4) OF RS.30 CRORE. ON THIS TOTAL INCOME APPELLANT CALCULATED THE TAX LIABILITY OF RS.10,06,13,004/ - WHICH IS MORE OR LESS SAME AS WHAT APPELLANT HAD SUBMITTED IN THE LETTER DATED 28.05.2008 . HOWEVER, APPELLANT DID NOT CALCULATE UNDISPUTE D LIABILITY OF INTEREST U/S. 234C AND THE LIABILITY OF INTEREST U/S. 234B IN THE RETURN OF INCOME FILED ON 29.09.2008 . IT APPEARS THAT ASSESSING OFFICER ADJUSTED THE SEIZED CASH OF RS.10,06,13,004/ - ON 13.04.2009 AS PER THE REQUEST OF APPELLANT VIDE LETTER DATED 28 - 05 - 2008 OR AS PER THE TAX LIABILITY ADMITTED BY APPELLANT IN RETURN OF INCOME BEFORE THE COMPLETION OF ASSESSMENT. THEREFORE THE FACT THAT THE ADJUSTMENT OF SEIZED CASH COULD BE CARRIED OUT EVEN BEFORE DETERMINATION OF TAX LIABILITY ON COMPLETIO N OF ASSESSMENT, IS EVIDENT FROM ASSESSING OFFICER S OWN ACTION. 4.2 THE PROVISIONS OF SECTION 132B OF IT ACT DESCRIBE THE MANNER IN WHICH THE SEIZED ASSETS ARE REQUIRED TO BE APPLIED BY THE ASSESSING OFFICER. THE PROVISIONS OF SECTION 132(5 ) WERE OMITTED FROM 01 - 06 - 2002 AND FROM THE SAME DATE TWO PROVISOS TO CLAUSE (I) OF SUB SECTION (1) OF SECTION 132B WERE INSERTED. UNDER SECTION 132(5) , WHICH EXISTED TILL DAYS 01 - 06 - 2002 , ASSESSING OFFICER HAD TO MAKE AN ESTIMATION OF TAX LIABILITIES WITHIN 120 DAYS O F THE SEIZURE OF ASSETS AND TILL SUCH ESTIMATION HE COULD RETAIN ALL THE SEIZED ASSETS. ON ESTIMATION OF TAX LIABILITIES U/S 132 ( 5) , ASSESSING OFFICER COULD RETAIN THE SEIZED ASSETS WORTH SUCH TAX LIABILITIES AND RELEASE THE ASSETS WHICH WERE IN EXCESS OF SUCH ESTIMATED TAX LIABILITIES. AFTER 01 - 06 - 2002, NO SUCH DETERMINATION OF TAX LIABILITY IS REQUIRED U/S. 132(5) BY THE ASSESSING OFFICER TO RETAIN THE SEIZED ASSET. HOWEVER, AFTER 01 - 06 - 2002, THE ASSESSEE MAY APPLY FOR THE RELEASE OF SEIZED ASSET W ITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH THE ASSET WAS SEIZED. ASSESSING OFFICER HAS TO BE SATISFIED WITH THE SOURCE OF ACQUISITION OF SUCH ASSET SEIZED AND IF HE IS SATISFIED WITH THE 9 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ EXPLANATION OF ASSESSEE THEN HE SHOULD RELEASE THE ASSET WITHIN 120 DAYS FROM THE DATE OF SEIZURE OF SUCH ASSET AFTER RECOVERING ANY EXISTING LIABILITY UNDER INCOME TAX ACT, WEALTH TAX ACT ETC. I F THE SEIZED ASSET IS IN FORM OF CASH, ASSESSING OFFICER MAY ON HIS OWN, APPLY THE CASH, TOWARDS DISCHARGE OF ANY EXISTING LIABILITY UNDER INCOME TAX ACT, WEALTH TAX ACT ETC UNDER CLAUSE (II) OF SUBSECTION (1) OF SECTION 132B. IN THE PRESENT CASE, ACCORDING TO THE ASSESSING OFFICER, A LIABILITY NOT DETERMINED UNDER INCOME TAX ACT BY THE ASSESSING OFFICER, SUCH AS AD VANCE TAX LIABILITY , ON THE DATE OF APPLICATION OF ADJUSTMENT OF SEIZED CASH MADE BY THE APPELLANT, CANNOT BE AN EXISTING INCOME TAX LIABILITY OF THE APPELLANT, WHICH CAN BE RECOVERED FROM THE SEIZED CASH. THE INTERPRETATION OF ANY EXISTING LIABILITY UN DER INCOME TAX ACT, WT ACT ETC UNDER CLAUSE (I) AND (II) OF SECTION 132B(1) HAS BEEN UNDER DISPUTE. THE INTERPRETATION OF ANY EXISTING LIABILITY UNDER INCOME TAX ACT CANNOT BE RESTRICTED TO ONLY DEMANDS RAISED BY THE ASSESSING OFFICER U/S. 156 OF THE I. T ACT . IT IS A FACT THAT THE ASSESSING OFFICER HAD ADJUSTED THE SEIZED CASH OF R S.10,06,13,003/ - TOWARDS PAYMENT OF TAX U/S. 140A OF THE I.T ACT BEFORE RAISING THE DEMAND U/S. 156 OF THE I.T ACT AND THEREFORE, THE ACTION OF ASSESSING OFFICER ITSELF SHOWS T HAT THOUGH THE ASSESSING OFFICER HAS BEEN INSTRUCTED BY CBDT NOT TO ADJUST THE SEIZED CASH ADVANCE TAX LIABILITY OF APPELLANT, THERE IS NO SUCH RESTRICTION TO ADJUST SUCH CASH AGAINST THE LIABILITY ADMITTED U/.S 140A BY THE APPELLANT. APPELLANT HAD CATE GORICALLY ADMITTED BEFORE THE ASSESSING OFFICER THE LIABILITY OF R S.10,06,00,000 U/S. 140A OF THE I.T ACT VIDE LETTER DATED 28 - 05 - 2008 . THEREFORE , ASSESSING OFFICER COULD HAVE ADJUSTED THE SEIZED CASH OF RS.10,06,00,000/ - AGAINST THE ADMITTED LIABILITY O F APPELLANT U/S. 140A OF THE I.T ACT FOR ASSESSMENT YEAR 2008 - 09 ANY TIME AFTER 28 - 05 - 2008. THE NEXT QUESTION IS, WHETHER ASSESSING OFFICER IS BOUND TO ADJUST SUCH LIABILITY AGAINST THE SEIZED CASH OR THE ASSESSING OFFICER HAS DISCRETION IN THIS REGARD. SOME COURTS HAVE INTERPRETED THAT AS PER THE AMENDED PROVISIONS OF SECTION 132B, THE EXISTING TAX LIABILITIES INCLUDE THE DEMAND OF THE ASSESSMENT YEAR IN RESPECT OF WHICH CASH HAS BEEN SEIZED AND ASSESSMENT OF WHICH IS PENDING AND THE ASSESSING OFFICER CANNOT POST PONE THE ADJUSTMENT OF CASH AGAINST SUCH LIABILITIES BEYOND THE DATE OF SEIZURE AND CHARGE HIGHER INTEREST U/S. 234B FOR NO FAULT OF THE ASSESSEE. APPELLANT HAS REFERRED TO THE DECISION OF H BLE ITAT KOLKATA IN THE CASE OF DCIT, CENT. CIRCL E - V, KOL, VS. SHRI SITARAM AGARWAL (HUF) , KOLKATA IN ITA NO.101/KOL/2007, SUPPORTING THIS VIEW. HOWEVER, IN THE PRESENT CASE, THE CASH WAS NOT SEIZED FROM THE APPELLANT AND DID NOT PERTAIN TO APPELLANT AND THEREFORE THE PROVISIONS OF SECTION 132B(1)(II) OF THE I.T ACT ARE NOT APPLICABLE IN CASE OF APPELLANT. 4.3 IN THE PRESENT CASE, M/S. SHOPARNA BROTHERS PVT. LTD FROM WHOSE CUSTODY, CASH OF R S.17,51,79,994/ - WAS SEIZED, MADE AN APPLICATION ON 28 - 05 - 2008 BEFORE THE ASSESSING OFFICER WHO HAPPENS TO BE THE SA ME ASSESSING OFFICER OF APPELLANT. SUCH APPLICATION IS AN APPLICATION UNDER THE FIRST PROVISO TO CLAUSE ( I) OF SUBSECTION (1) OF SECTION 132B. IN THIS APPLICATION, M/S. SHOPARNA BROTHERS PVT. LTD HAD EXPLAINED THAT RS.17,51,79,994/ - SEIZED FROM THEIR CUSTO DY ON 08 - 04 - 2008 WAS FROM REGULAR BOOKS OF ACCOUNT. M/S. SHOPARNA BROTHERS PVT. LTD FURTHER APPLIED FOR RELEASE OF THE CASH SEIZED ON 08 - 04 - 2008 IN FAVOUR OF APPELLANT FOR PAYMENT OF APPELLANT S TAX LIABILITY OF 10 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ RS.10,06,00,000/ - . AS PER THE SECOND PROVISO TO CLAUSE ( I) OF SUBSECTION(1) OF SECTION 132B, ASSESSING OFFICER SHOULD HAVE ACTED ON THIS APPLICATION WITHIN 120 DAYS OF THE SEIZURE OF SUCH CASH ON 08 - 04 - 2008 . ASSESSING OFFICER SHOULD HAVE RECOVERED THE TAX LIABILITIES OF M/S. SHOPARNA BROTHERS PVT. LTD FROM THE C A SH SEIZURE OF RS.17,51,79,994/ - AND RELEASED THE AMOUNT OF R S.10,06,00,000/ - IN FAVOUR OF APPELLANT, AS REQUESTED FOR, ON OR BEFORE 06 - 08 - 2008 , I.E WITHIN 120 DAYS FROM THE DATE OF SEIZURE. AN APPLICATION WAS FILED BY THE APPELLANT ALSO B EFORE THE ASSESSING OFFICER ON 28 - 05 - 2008 SHOWING CATEGORICALLY ITS TAX LIABILITY OF ASSESSMENT YEAR 2008 - 09 AT RS.10,06,00,000/ - U/S. 140A OF THE I.T ACT WITH A REQUEST FOR ADJUSTMENT OF THIS LIABILITY AGAINST THE RELEASE OF CASH SEIZED FROM M/S. SHOPARNA BROTHERS PVT. LTD. ASSESSING OFFICE HAS STATED IN THE ASSESSMENT ORDER THAT THE CASH SEIZED CANNOT BE APPLIED AS REQUESTED BY APPELLANT AND M/S. SHOPARNA BROTHERS PVT. LTD BECAUSE CBDT HAS PROHIBITED THE ADJUSTMENT OF SEIZED CASH AGAINST ADVANCE TAX PAYMENT VIDE INSTRUCTION NO.286/105/2005 - IT(INV - II) DATED 13.07. 2006. HOWEVER, NO REASON HAS BEEN GIVEN BY THE ASSESSING OFFICER THAT THE SOURCE OF CASH SEIZED, IE REGULAR BOOKS OF ACCOUNT, WAS NOT EXPLAINED BY M/S. SHOPARNA BROTHERS PVT. LTD IN THEIR AP PLICATION DATED 28 - 05 - 2008 AND THERE WAS ANY TAX LIABILITY REMAINING TO BE ADJUSTED IN THEIR CASE. IN VIEW OF THESE FACTS, AS REQUESTED BY BOTH APPELLANT AND M/S. SHOPARNA BROTHERS PVT. LTD , ASSESSING OFFICER SHOULD HAVE RELEASE D THE CASH SEIZED FROM THE CUSTODY OF M/S. SHOPARNA BROTHERS PVT. LTD AND SHOULD HAVE APPLIED IT TOWARDS PAYMENT OF TAX LIABILITIES OF R S.10,06,00,000/ - OF APPELLANT ON OR BEFORE 06 - 08 - 2008. HOWEVER, IT APPEARS THAT THE ASSESSING OFFICER DID ACT UPON SUCH REQUESTS, BUT AFTER A DEL AY OF A FEW MONTHS ON 13 - 04 - 2009. IF ASSESSING OFFICER DOES NOT ACT UPON SUCH APPLICATION OR DOES NOT REJECT THE APPLICATION OF M/S. SHOPARNA BROTHERS PVT. LTD BY A SPEAKING ORDER, THEN IT IS PRESUMED THAT THE ASSESSING OFFICE HAS NO OBJECTION TO THE PROPOSAL OF M/S. SHOPARNA BROTHERS PVT. LTD. THEREFORE , IN PRESENT CASE, THE AMOUNT OF RS.10,06,00,000/ - SEIZED AND PRAYED BY M/S. SHOPARNA BROTHERS PVT. LTD AND THE APPELLANT ON 28 - 05 - 2008 FOR RELEASE AND APPLICATION TOWARDS THE TAX LIABILITY OF ASSES SMENT YEAR 2008 - 09 OF APPELLANT, IS PRESUMED TO BE ACCEPTED BY THE ASSESSING OFFICER. WHAT THE ASSESSING OFFICER DID LATER SHOULD HAVE BEEN DONE BEFORE 6 TH AUGUST 2008 AND THEREFORE IT IS PRESUMED THAT THE RELEASE AND APPLICATION OF SEIZED CASH TOWARDS PAYMENT OF TAX LIABILITY DATES BACK TO 06 - 08 - 2008, WHEN THE TIME ALLOWED TO ASSESSING OFFICER BY THE STATUTE TO TAKE SUCH DECISION EXPIRES. THEREFORE , I HOLD THAT THE AMOUNT OF SEIZED CASH OF RS.10,06,00,000/ - SHOULD BE HELD AS PAID U/S. 140A ON 06 - 08 - 2 008 TOWARDS THE ADMITTED TAX LIABILITY OF THE APPELLANT FOR ASSESSMENT YEAR 2008 - 09. ASSESSING OFFICER DID NOT CHARGE ANY INTEREST U/S 234A OF THE I.T ACT, ON THE RETURN FILED BY THE APPELLANT ON 29 - 09 - 2008 , WHICH SHOWS THAT ASSESSING OFFICER HAS PRINCIP ALLY ACCEPTED THE CONTENTION OF THE APPELLANT THAT TAX OF RS.10,06,00,000/ - WAS PAID BY THE APPELLANT BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME OTHERWISE, IN VIEW OF THE JUDGEMENT OF H BLE DELHI HIGH COURT IN CASE OF PRANOY ROY VS. CIT (254 IT R 755) AND CONFIRMED BY H BLE SUPREME COURT IN CASE OF CIT VS. PRANOY ROY AND OTHERS (309 ITR 231), INTEREST U/S. 234A IS CHARGEABLE EVEN ON A RETURN FILED IN TIME BUT TAXES DUE REMAINING UNPAID AFTER THE DUE DATE OF FILING OF RETURN OF INCOME. THEREFOR E, IN 11 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ CALCULATION OF INTEREST U/S. 234B, ASSESSING OFFICER SHOULD GIVE CREDIT FOR TAX OF RS.10,06,00,000/ - FROM 06 - 08 - 2008 BECAUSE SUBSEQUENT DELAY IN SUCH CREDIT WAS A DELAY ON PART OF THE ASSESSING OFFICER BEYOND THE TIME ALLOWED BY THE INCOME TAX ACT. I , THEREFORE, DIRECT THE ASSESSING OFFICER TO CALCULATE THE INTEREST U/S. 234B ACCORDINGLY. IN THE CIRCUMSTANCES AND FACTS OF THE PRESENT CASE, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) . WE ACCORDINGLY UPHOLD THE SAME. GROUND NO.7 OF THE REVEN UE S APPEAL IS DISMISSED. 1 4 . TH US , THE APPEAL OF THE REVENUE IN ITA NO. 1878/KOL/2010 FOR THE ASSESSMENT YEAR 2008 - 09 IN THE CASE OF M/S. UMANG VINCOM P.LTD IS DISMISSED. ITA NO. 1877/KOL/2010 A.Y 2008 - 09 IN THE CASE OF ME/S JANKI TEXTILE & INDUSTRI ES LTD (BY THE REVENUE ): 1 5 . THE FACTS IN THE CASE OF M/S JANKI TEXTILE & INDUSTRIES LTD ARE SIMILAR TO THE FACTS IN THE CASE OF M/S UMANG VINCOM (P) LTD IN ITA NO.1878/KOL/2010 FOR THE A.Y 2008 - 09, WHICH HAVE BEEN DISCUSSED BY US HEREINABOVE. THEREF ORE, OUR ORDER IN THE CASE OF M/S. UMANG VINCOM (P) LTD AS MENTIONED HEREIN ABOVE IS IDENTICALLY APPLICABLE IN THE CASE OF M/S. JANKI TEXTILE & INDUSTRIES LTD IN ITA NO. 1877/KOL/2010 A.Y 2008 - 09. THUS, THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN ITA N O.1877/KOL/2010 ARE DISMISSED. 16 . IN THE RESULT, BOTH THE APPEALS OF THE REVENUE IN ITA NOS. 1877 & 1878/KOL/2010 FOR THE ASSESSMENT 2008 - 09 IN THE CASES OF M/S. JANKI TEXTILE & INDUSTRIES LTD & M/S. UMANG VINCOM (P) LTD ARE DISMISSED AS STATED ABOVE. ORDER IS PRONOUNCED IN THE OPEN COURT ON 13/08/ 2015 SD/ - SD/ - ( MAHAVIR SINGH ) ( B.P.J AIN ) 10/ 08/15 JUDICIAL MEMBER A CCOUNTANT MEMBER DATED : 13/08/2015 12 ITA NO S.1877 & 1878 /KOL/2010 M/S. JANKI TEXTILE & INDUSTRIES LTD & M /S. UMANG VINCOM PVT. LTD - C - BPJ **PRADIP (SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT - DCIT,CC - XIII, KOLKATA 18 RABINDRA SARANI, KOL - 1. 2 RESPONDENT M/S UMANG VINCOM PVT. LTD & M/S. JANKI TEXTILE & INDUSTRIES LTD 8 CAMAC ST ROOM NO.409, SHANTI NIKETAN BUILDING, KOL - 17. 3 . THE CIT(A) CONCERNED 4. 5. THE CIT CONCERNED THE D . R 6. GUARD FILE TRUE COPY, BY ORDER ASSTT. REGISTRAR