ITO, Ward 11(1), Kolkata, Kolkata V. M/s Rolex Trafin Pvt. Ltd., Kolkata

ITA 2170/KOL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9846 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 09-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V K JAIN FCA LD
• Assessee Lawyers: RADHEY SHYAM CIT LD
• Keywords: Unexplained cash credit; Share purchase agreement; Opportunity of being heard; Set aside
• Section: 143(3); 142(1); 133(6); 201; 274; 143(2); 147; 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, KOLKATA BEFORE SHRI A.T, VARKEY , JM & DR. A.L. SAINI, AM ITA NO. 2 170 /KOL/201 6 A.Y 201 2 - 13 I.T.O. WARD 11(1), KOLKATA VS. M/S. ROLEX TRAFIN PVT. LTD PAN: AADCR0592G ( / APPELLANT) .. ( / RESPONDENT) APPELLANT BY : SHRI RADHEY SHYAM, CIT, LD.DR REVENUE BY : SHRI V.K.JAIN, FCA, LD.AR / DATE OF HEARING : 19.07.2019 / DATE OF PRONOUNCEMENT: 25 - 0 9 - 2019 / O R D E R PER DR. A. L. SA INI, AM THE CAPTIONED APPEAL FILED BY THE R EVENUE , PERTAINING TO ASSESSMENT YEAR 201 2 - 13 , IS DIRECTED AGAINST THE ORDER DATED 17 - 08 - 2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 4 , KOLKATA, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PAS SED BY THE ASSESSING OFFICER [ ITO, WARD - 11(1), KOLKATA ] U/S. 143(3) OF THE INCOME - TAX ACT, 1961 ( IN SHORT THE ACT) DATED 29.03.201 5 . 2. THE SOLITARY GRIEVANCE OF THE REVENUE IN THIS APPEAL IS THAT LD CIT(A) WAS ERRED IN DELETING THE ADDITION OF RS. 6, 55,11,115/ - MADE BY ASSESSING OFFICER UNDER SECTION 68 OF THE ACT. 3. THE FACTS OF THE CASE WHICH CAN BE STATED QUITE SHORTLY ARE AS FOLLOWS: THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 29.03.2014 DECLARING TOTAL INCOME AT RS. NIL. T HE AO ISSUED N OTICE UNDER SECTION 143(2) AND 142(1) OF THE ACT. D URING THE ASSESS MENT PROCEEDINGS THE AO ASKED THE ASSESSEE TO SUBMIT THE DOCUMENTS AND EXPLANATION TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE SHARE CAPITAL AND SHARE PREMIUM. ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 2 NEITHER TH E ASSESSEE NOR THE SHARE SUBSCRIBING COMPAN IES APPEARED BEFORE THE AO DURI NG THE ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER , ON THE BASIS OF BOOKS OF ACCOUNTS OF THE ASSESSEE COM PANY MADE THE ASSESSMENT BY OBSERVING THE FOLLOWING: IT APPEARS FROM THE BALANCE SHEET AS AT 31.03.2012 THAT THE COMPANY HAS RECEIVED SHARE PREMIUM RS.65511150/ - . THE FOLLOWING POINTS HAS NOT CLEA RLY AVAILABLE: - THE ASSESSEES CONTENTION IS NOT TENABLE DUE TO THE FOLLOWING REASONS: - 1. IT IS NON - LISTED SHARE CAPITAL HAVING N O BUSINESS ACTIVITIES. 2. THE ASSESSEE HAS NO PREMISES OF HIS OWN OR RENTAL, AS PER THE BALANCE SHEET, THE ASSESSEE HAS NO IMMO VABLE PROPERTY AND AS PER THE PROFIT AND LOSS ACCOUNT IT HAS NOT PAID ANY RENT, NOR SUBMIT ANY DOCUMENTARY EVIDENCE FOR ITS EXI STENCE. THE MOST OF THE NOTICES WERE RETURNED BACK WITH POSTAL REMARKS NOT KNOWN/ NOT FOUND. 3. IN THE BANK STATEMENT OPENING BALAN CE AND CLOSING BALANCE IS ALMOST NIL. 4. THOUGH THE ASSESSEE HAS NEGLIGIBLE BUSINESS OPERATION BUT IT FIXES HUGE SHARE PREMIU M ALSO IT INVESTED INTO THE NON LISTED SHARE WHERE SHARE PREMIUM IS ALSO HIGH, THE BANK STATEMENT REFLECTS ONLY FOR ROTATING OF TRANSA CTION HAVING OPENING CLOSING BALANCE OF THE BANK IS NEGLIGIBLE. 5. IN VIEW OF THE ABOVE THE SHARE CAPITAL CLAIMED BY THE A SSESSEE COMPANY TO HAVE BEEN ISSUED DURING THE F.Y 201 2 - 13 WITH HIGH PREMIUM AMOUNTING TO RS. 4,59,50,00/ - [ SHARE CAPITAL OF RS. 4,14,2 50 + PREMIUM OF RS. 4,55,35,150 ] I S TREATED AS UNEXPLAINED CASH CREDIT IN THE BOOKS OF ACCOUNT OF THE ASSESSEE COMPAN Y AND IS INCLUDED IN THE TOTAL INCOME OF THE ASSESSEE COMPANY FOR THE A.Y 2012 - 13 U/S. 68 OF THE INCOME TAX ACT, 1961. THIS WAY THE ASSESSING OFFICER MADE THE ADDITION OF RS.6 , 55 , 11 , 150/ - UNDER SECTION 68 OF THE ACT. 4. AGGRIEV ED BY THE ORDER OF THE ASS ESSING OFFICER , THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A), WHO HAS DELETED THE IMPUGNED ADDITION MADE BY THE AO BY OBSERVING THE FOLLOWINGS : 4.3 ACCORDING TO THIS SECTION, IF ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAIN TAI NED FOR ANY PREVIOUS YEAR & IF IDENTITY, CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION IS NOT PROVED OR THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME - TAX AS ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 3 INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. IN THE INSTANT CASE I FIND THAT THE APPELLANT HAS SUBMITTED THAT IT DID NOT RECEIVE ANY SUM OF MONEY DURING THE RELEVANT PREVIOUS YEAR, THE ENTIRE SUM IS RECEIVED DURING T HE NEXT FIN ANC IAL YEA R , THUS AS PER THE SETTLED LEGAL POSITION OF LAW IN MY OPINION SEC TION 68 CANNOT BE APPLIED DURING THE YEAR UNDER CONSIDERATION. T H E LD CIT(A) ALSO DECIDE D THE ISSUE ON MERITS AS WELL. 5 . AGGRIEVED , BY THE ORDER OF THE LD. CIT(A), THE REVE NUE IS IN APPEAL BEFORE US. 6 . THE LD DR FOR THE REVENUE S UBMITTED BEFORE US THAT DURING THE ASSESSMENT STAGE NO NOTICE UNDER SECTION 131 WAS ISSUED TO THE DIRECTORS OF THE ASSESSEE COM PANY TO VERIFY THE GENUINENESS, IDENTITY AND CREDITWORTHINESS OF THE SHARE CAPITAL / PREMIUM. THE LD DR A LSO BROUGHT TO THE NOTICE OF THE BENCH , THE FOLLOWIN G SHORT COMING S AND ERRORS IN THE PAP ER BOOK SUBMITTED BY THE ASSESSEE, THE SE ARE AS FOLLOWS: (I).. PG NO . 273 & 285 OF PAPER BOOK : SIGNATURES OF DIRECTOR ABHISHEK AGA RWAL DO NOT MATCH AT BOTH THE PAGES. (II). P G. NO. 274 OF PAPER BOOK : AS PER THE RESOLUTION DT. 27.03.2012, THE SHARE APPLICATION MONEY WAS RECEIVED ON 22.03.201 2 . IT IS PERTINENT TO MENTION THAT THE RESOLUTION WAS SIGNED ON 25.04.2012. (III). IN THE R ESOLUTION, IT IS CLEARLY MENTIONED THAT THE ALLOTMENT AMOUNT FRO M THE NEW SHAREHOLDERS WILL BE RECEIVED IN NEXT FINANCIAL YEAR. THUS, IT IS VERY CLEAR EVIDENCE THAT RIGHT TO REALIZE OR CREATION OF LEGAL RIGHT TO RECEIVE MONEY WAS MADE IN THE YEAR IT SELF. (IV). FORM NO. 5 WAS SIGNED BY SOURAV DAS SHARMA IN THE CAPACITY OF DIRECTOR BUT HIS NAME IS NOT MENTIONED IN THE LIST OF DIRECTORS GIVEN IN THE MINUTE BOOK. MR. RANJIT PRASAD, WHO SIGNED THE DOCUMENTS IN THE CAPACITY OF DIRECTOR OF THE ASSESSEE I N EARLIER SUBMISSIONS, WAS NOT THE DIRECTOR OF THE ASSESSEE COMPANY AS ON 31 .03.2012. (V). SHARE CERTIFICATES IN THE NAME OF SHAKTI VANIJYA PVT. LTD. AND CONCORD DEALCOM PVT. LTD. (ENCLOSED AT PG. 233 - 234 OF THE PAPER BOOK) ARE NEW EVIDENCES / DOCUMEN TS . ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 4 7 . ON THE OTHER HAND , LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT WHEN THERE IS NO REAL CASH CREDIT IN THE BOOK S OF ACCOUNTS OF THE ASSESSEE AND ADJUSTMENT IN THE BOOKS OF ACCOUNTS WAS DONE BY PASSING JOURNAL ENTRY; THEREFORE THE QUESTION OF UNEXPL AINED CASH CREDIT DOES NOT ARISE. BY WAY OF PASSING JOURNAL ENTRY IN THE BOOKS OF ACCOUNTS, THE CASH DOES NOT COME IN T HE HANDS OF ASSESSEE COMPANY, IT IS MERELY ON ADJUSTMENT IN THE BOOKS OF ASSESSEE COMPANY, IT IS MERELY A N ADJUSTMENT IN THE BOOKS OF ACC OUNTS OF THE ASSESSEE, THEREFORE, LD. CIT(A) HAS RIGHTLY HELD THAT PROVISIONS OF SECTION 68 OF THE ACT DOES NOT APPLY T O THE ASSESSEE COMPANY. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT ASSESSEE COMPANY IS A PRIVATE LIMITED COMPANY, WHICH IS GOVERNED BY THE COMPANIES ACT. AS PER COMPANIES ACT EVERY COMPANY IS SUPPOSED TO FOLLOW ACCRUAL BASIS OF ACCOUNTING. IN ACCRUAL BASIS OF ACCOUNTING, THE INCOME IS RECORDED IN THE BOOKS OF ACCOUNTS WHEN RIGH T TO RECEIV E PAYMENT IS ESTABLISHED AND EXPENSES IS RECORDED IN THE BOOKS OF ACCOUNTS WHEN OBLIGATION TO PAY ARISES . WE NOTE THAT ASSESSEE COMPANY IS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING (WHICH IS BASED ON ACCRUAL CONCEPT) AND AS PER RESOLUTION OF BOARD OF DI RECTORS OF ASSESSEE COMPANY (VIDE PAPER BOOK PAGE 232), THE ASSESSEE COMPANY CLAIMED TO HAV E ISSUED 21 ,30,143/ - EQUITY SHARES OF FACE VALUE OF RS.10/ - EACH INCLUDING PREMIUM RS. 90 / - PER SHARE. ON ISSUE OF EQUITY SHARES, THE FOLLOWING ACCOUNTING ENTRY IS PAS SED: ON 27.03.2012 - ACCOUNTING ENTRY BASED ON ACCRUAL CONCEPT IS GIVEN BELOW: EQUITY SHAREH OLDERS ACCO UNT DR RS. 6,86,97,11 1 TO EQUITY SHARE CAPITAL 2,13,01,43 0 TO SHARE PREMIUM 4,73,95,682 (BEING EQUITY SHARES OF 21 ,30,143 NOS. ISSUED AT RS.10 FACE VALUE AND RS.22.25 PREMIUM PE R SHARES) ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 5 WE NOTE THAT IN ASSESSMENT ORDER THE ASSESSING OFFICER MADE ADDITION TO THE TUNE OF RS.6,55,11,150/ - , WHEREAS, AS PER BOARD RESOLUTION THE AMO UNT OF SHARE CAPITAL AND PREMIUM COMES T O RS.6,86,97,112/ - AS MENTIONED IN THE ACCOUNTING ENTRY MADE A BOVE. THE LD COUNSEL FAILED TO EXPLAIN THE ABOVE MISMATCH. WE NOTE THAT ON 27.03.2012 THE RIGHT TO RECEIVE PAYMENT HAS ESTABLISHED TO RECEIVE THE AMOUNT O F RS.6,86,97,112/ - FROM SHAREHOLDERS. TH EREFORE, THE AMOUNT ACCRUED AT RS. 6,86,97,112/ - GETS CREDITED IN THE LIABILITY SIDE OF THE BALANCE SHEET UNDER THE HEAD SHARE CAPITAL. THE SHARE CAPITAL SITS ON T HE LIABILITY SIDE OF THE BALANCE SHEET . IN THIS SCE NARIO, ON THE OTHER SIDE , THE SHAREHOLDERS BECOME DEBTORS OF THE COMPANY AND THEY WILL BE SHOWN IN ASS ETS SIDE OF THE BALANCE SHEET OF THE COMPANY. ADMITTEDLY , THE ASSESSEE IS FOLLOWING THE M ERCANTILE SYSTEM OF ACCOUNTING AND A S PER ACCRUAL SYSTEM / M ERCANT ILE SYSTEM OF ACCOUNTING, CERTAINLY THE AFORESAID AMOUNT IS CASH CREDIT IN THE BOOKS OF ACCOUNTS OF THE COMPANY IN THIS ASSESSMENT YEAR AND THE LD CIT(A) ERR ED IN DELETING THE SAME ON THE MERE SUBMISSIONS MADE BY THE ASSESSEE BEFORE HIM. FOR UNDERS TANDING THE CONCEPT OF ACCRUAL, IT WOULD BE GAINFU L TO REFER TO THE JUDG MENT OF THE HON`BLE DELHI HIGH COURT IN THE CASE OF JAGDISH PRASAD GUPTA, I N ITA NO. 695/2010, ORDER DATED 18.08.2017, WHEREIN IT WAS HELD AS FOLLOWS: 36. IN SUPPORT OF HIS PLEA THA T, WHEN THERE IS A MERCANTILE BASIS OF MAINTENANCE OF BOOKS OF ACCOUNTS, THE SAME PRINCIPLES WOULD HAVE TO APPLY FOR ALLOWING THE CLAIM ON ACCRUAL B ASIS RELIANCE WAS PLACED ON CIT V. WOODWARD GOVERNOR INDIA P. LTD. [2009] 312 ITR 247 (SC); KESHAV MILLS LTD . V. COM MISSIONER OF INCOME TAX, BOMBAY [1953] 23 ITR 230 (SC) AND TAPAR IA TOOLS LTD. V. CIT [2015] 372 ITR 605 (SC). THERE MAY HAVE BEEN SOME INCON SISTENCY IN THE ASSESSEE MAKING A CLAIM FOR ENHANCED LICENCE FEE IN SOME OF THE AYS BUT A VALID EXPLANATION WAS OFFE RED BY THE ASSESSEE THEREFOR. IN ANY EVENT THERE WAS NO WAIVER B Y THE ASSESSEE TO CLAIM THE DEDUCTION ON ACCRUAL BASIS AS IT WAS INDEED FOLL OWING THE MERCANTILE SYSTEM OF ACCOUNTING. 37. MR. AGGARWAL DISPUTED THE CONTENTION OF MR. MANCHANDA THAT T HE ORDER OF THE ITAT FOR AY 1995 - 96 WAS IN FAVOUR OF THE REVENUE. IT WAS TO THE CONTRARY. THE SAID ORDER ALLOWED THE DEDUCTION OF RS. 35,37,300/ - AS CLAIMED BY THE ASSESSEE IN ITS ENTIRETY. UNDENIABLY, THE SAID ORDER HAS NOT BEEN CHALLENGED BY THE REVENUE AND HAS ATTAINED FINALITY. IN FACT, APPEAL EFFECT HAS ALSO BEEN GIVEN TO THE SAID ORDER AND YET THERE IS NO CHALLENGE. MR AGGARWAL ALSO POINTED OUT THAT THE ORDER DATED 22ND JULY 2008 OF THE ITAT WAS SET ASIDE BY THIS COURT AND CANNOT BE RELIED UPON BY THE REVENUE . 38. MR. AGARWAL DISPUTED THE CONTENTION THAT THE ASSESSEE HAD K EPT BACK THE FACT OF THE EO'S ORDER FROM THE AO OR MADE ANY FRAUDULENT CLA IM FOR DEDUCTION OF ENHANCED LICENCE FEE AS ALLEGED. HE FURTHER DISPUTED THE CONTENTION THAT THE SAID ORDER ABSOLVED THE ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 6 ASSESSEE WHOLLY FROM LIABILITY TO PAY THE LICENCE FEE. MR AGG ARWAL SUBMITTED THAT THE ESSENTIAL REQUIREMENT OF SECTION 147 OF THE ACT F OR REOPENING THE ASSESSMENT WAS NOT FULFILLED IN THE PRESENT CASE. RELIANCE WAS PLACED ON THE DECISIONS IN M OHAN GUP TA (HUF) V. CIT (2014) 366 ITR 115 (DEL) AND ACIT V. RAJESH JHAVER I STOCK BROKERS P LTD. (2007) 291 ITR 500 (SC). MR. AGGARWAL MAINTAINED TH AT THE IMPUGNED ORDER DATED 31ST JULY 2009, OF THE ITAT, DOES NOT DECIDE ALL THE ASPECTS REMITTED TO IT BY T HE COURT BY THE ORDER DATED 11 TH DECEMBER, 2008. IN PARTICULAR, THE VALID ITY OF THE REOPENING OF THE ASSESSMENTS UNDER SECTION 147 OF THE ACT WAS N OT EXAMINED. ACCRUED OR CONTINGENT LIABILITY? 39. THE COURT PROPOSES TO FIRST EXAMINE THE CENTRAL ISSUE THA T ARISES IN THE PRESENT APPEAL VIZ., IS THE LIABILITY OF THE ASSESSEE TO PA Y ENHANCED LICENCE FEE AN ACCRUED OR A CONTINGENT LIABILITY? 40. TO BEGI N WITH, IT IS NECESSARY TO EXAMINE THE BASIC CONCEPTS OF 'ACCRUED LIABILITY' AND 'CONTINGENT LIABILITY'. THI S COURT, IN AGGARWAL AND MODI ENTERPRISES (CINEMA PROJECT) CO. PVT. LTD. V. CIT (SUPRA), HAD OCCASION TO EXAMINE, IN DEPTH, THE SAID CONCEPT. SINCE THE SAID DECISION DOES NOT APPEAR TO HAVE BEEN CHALLENGED FURTHER BY THE REVENUE, THE FOLLOWING PASSAGES IN THE SAID DECISION MAYBE USEFULLY REFERRED TO FOR THE PURPOSE: 'ASCERTAINED O R ACCRUED LIABILITY 39. THE QUESTION AS TO WHEN A LIABILITY CAN BE SAID TO BE ASCERTAINED ONE HAS ARISEN IN THE CONTEXT OF BOTH A STATUTORY LIABILITY AND A CONTRACTUAL LIABILITY. AN EXAMP LE OF A STATUTORY LIABILITY IS THE CASE OF KEDARNATH JUTE MANUFACTURI NG CO. LTD. (SUPRA). THERE THE ASSESSEE FOLLOWED THE MERCANTILE SYSTEM OF ACCOUNTING. THE RELEVANT AY WAS 1955 - 56. THE ASSESSEE HAD IN THE CALENDAR YEAR 1954, I.E., THE RELEVANT P REVIOUS YEAR, INCURRED A LIABILITY OF RS. 1,49,776/ - ON ACCOUNT OF SALES TAX DETERMINED AS PAYABLE BY THE SALES TAX AUTHORITIES ON THE SALES MADE BY IT. THE SALES TAX DEMAND HAD ALREADY BEEN RAISED. THE ASSESSEE HAD CONTESTED THE SALES TAX LIABILITY BY FIL ING AN A PPEAL. IT HAD ALSO NOT MADE ANY PROVISION IN ITS BOOKS AS REGARDS PAY MENT OF THE SAID AMOUNT. ON THESE TWO GROUNDS, THE AO REJECTED THE ASSE SSEE'S CLAIM FOR DEDUCTION. HOLDING FOR THE ASSESSEE, THE SUPREME COURT HELD THAT ALTHOUGH THE SALES TAX LIA BILITY C OULD NOT BE ENFORCED TILL THE QUANTIFICATION WAS EFFECTED IN THE ASSE SSMENT PROCEEDINGS, SINCE THE ASSESSEE HAD FOLLOWED THE MERCANTILE SYST EM OF ACCOUNTING IT WAS ENTITLED TO DEDUCT FROM THE PROFITS AND GAINS OF THE BUSINESS SUCH LIABILITY WHICH H AD ACCRU ED DURING THE PERIOD FOR WHICH THE PROFITS AND GAINS WERE BEING COMPU TED. IT WAS HELD THAT THE LIABILITY DID NOT CEASE TO BE A LIABILITY ONL Y BECAUSE THE ASSESSEE HAD CHALLENGED IT IN THE HIGHER FORUM. ALSO THE FACT THAT THE ASSESSEE HAD FAILED TO DEBIT TH E LIABILITY IN ITS BOOKS OF ACCOUNTS DID NOT PREVENT IT TO CLAIM THE SAID SUM AS DEDUCTION EITHER UNDER SECTION 10(1) OR UNDER SECTION 10(2) (XV) OF THE INCOME TAX ACT, 1922. IT WAS HELD 'WHETHER THE ASSESSEE IS ENTITLED TO A PARTICULAR DEDUCTION OR NOT WIL L DEPEND ON THE PROVISION OF LAW RELATING THERETO AND NOT ON THE VIEW WHICH THE ASSESSEE MIGHT TAKE OF HIS RIGHTS; NOR CAN THE EXISTENCE OR ABSENCE OF ENTRIES IN HIS BOOKS OF ACCOUNT BE DECISIVE OR CONCLUSIVE IN THE MATTER.' 40. THIS WAS IN LINE W ITH THE EARLIER DECISION IN CALCUTTA CO. LTD. V. COMMISSIONER OF INCOME TAX, W EST BENGAL (1959) 37 ITR 1 (SC) WHERE THE SUPREME COURT EXPLAINED THAT AN ASSESSEE FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING COULD CLAIM A DEDUCTION OF AN ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 7 ESTIMATED EXPENDITU RE TOWAR DS DEVELOPMENT OF PLOTS PURCHASED BY IT EVEN BEFORE ACTUALLY INCURRING THE EXPENDITURE. THIS WAS NOT A STATUTORY LIABILITY BUT A CONTRACTUAL ONE. THE ASSESSEE IN THAT CASE WAS A DEVELOPER DEALING IN LAND AND PROPERTY. THE SUPREME COURT NOTED THAT T HE RELEV ANT CLAUSES OF THE SALE DEED SPELT OUT THE UNDERTAKING OF THE ASSESSEE 'TO CARRY OUT THE DEVELOPMENTS WITHIN SIX MONTHS FROM THE DATE OF THE SALE.' IT WAS NOTED THAT ALTHOUGH THE ENTIRE SALE CONSIDERATION WAS NOT RECEIVED DURING THE RELEVANT AY, TH E ASSESS EE HAD NEVERTHELESS ENTERED IT INTO THE CREDIT SIDE OF ITS BOOKS OF AC COUNTS. LIKEWISE IT DEBITED THE ESTIMATED SUM OF EXPENDITURE TOWARDS D EVELOPMENT ALTHOUGH 'NO PART OF THAT AMOUNT REP S RESENTED ANY EXPENDITURE ACTUALLY MADE DURING THAT YEAR.' EX PLAINING THE MERCANTILE SYSTEM OF ACCOUNTING, THE COURT REFERRED TO AN EARLIER DECISION IN KESHAV MILLS LTD. V. COMMISSIONER OF INCOME TAX, BOMBAY ( 1953) 23 ITR 230 (SC) IN WHICH IT WAS DESCRIBED AS UNDER: 'THAT SYSTEM BRINGS INTO CREDIT WHAT IS DUE, IMMED IATELY I T BECOMES LEGALLY DUE AND BEFORE IT IS ACTUALLY RECEIVED AND IT BRINGS INTO DEBIT EXPENDITURE THE AMOUNT FOR WHICH A LEGAL LIABILITY HAS BEE N INCURRED BEFORE IT IS ACTUALLY DISBURSED.' 41. THE SUPREME COURT IN CALCUTTA CO. LTD. V. COMMISSIONER OF INCOME T AX, WEST BENGAL (SUPRA) PROCEEDED TO HOLD AS UNDER: 'INASMUCH AS THE LIA BILITY WHICH HAD THUS ACCRUED DURING THE ACCOUNTING YEAR WAS TO BE D ISCHARGED AT A FUTURE DATE THE AMOUNT TO BE EXPENDED IN THE DISCHARGE OF THAT LIABILITY WOULD HAVE TO BE EST IMATED I N ORDER THAT UNDER THE MERCANTILE SYSTEM OF ACCOUNTING THE AMOUNT COULD BE DEBITED BEFORE IT WAS ACTUALLY DISBURSED. THE DIFFICULTY IN THE E STIMATION THEREOF AGAIN WOULD NOT CONVERT AN ACCRUED LIABILITY INTO A CONDITIONAL ONE, BECAUSE IT IS ALWAYS OPEN TO THE INCOME - TAX AUTHORITIES CONCERNED TO ARRIVE AT A PROPER ESTIMATE THERE OF HAVING REGARD TO ALL THE CIRCUMSTANCES OF THE CASE.' 42. THE SU PREME COURT CALCUTTA CO. LTD. V. COMMISSIONER OF INCOME TAX, WEST BENGAL (SUPRA) ALSO EXPLAINED THAT SINCE T HE ASSES SEE WAS BEING ASSESSED IN RESPECT OF THE PROFITS AND GAINS OF ITS BUSINESS , THE SAME COULD NOT BE DETERMINED 'UNLESS AND UNTIL THE EXPENSES OF THE OBLIGATIONS WHICH HAVE BEEN INCURRED ARE SET OFF AGAINST THE RECEIPTS.' IT WAS OBSERVED AS UNDER: 'TH E EXPRES SION PROFITS AND GAINS HAS TO BE UNDERSTOOD IN ITS COMMERCIAL SENSE AND TH ERE CAN BE NO COMPUTATION OF SUCH PROFITS AND GAINS UNTIL THE EXPE NDITURE WHICH IS NECESSARY FOR THE PURPOSE OF EARNING THE RECEIPTS IS DEDUCTED THEREFROM - WHETHER THE EXPEND ITURE IS ACTUALLY INCURRED OR THE LIABILITY IN RESPECT THEREOF HAS ACCRUED EVEN TH OUGH IT MAY HAVE TO BE DISCHARGED AT SOME FUTURE DATE. AS WAS OBSE RVED BY LORD HERSCHELL IN BUSSEL V. TOWN AND COUNTY BANK, LTD. (1888) 13 APP. CAS. 418: 'THE DUTY IS TO BE C HARGED U PON 'A SUM NOT LESS THAN THE FULL AMOUNT OF THE BALANCE OF THE PROFITS OR GAINS OF THE TRADE, MANUFACTURE, ADVENTURE, OR CONCERN'; AND IT AP PEARS TO ME THAT THAT LANGUAGE IMPLIES THAT FOR THE PURPOSE OF ARRIVING AT THE BALANCE OF PROFITS ALL THAT E XPENDITU RE WHICH IS NECESSARY FOR THE PURPOSES OF EARNING THE RECEIPTS MUST BE DED UCTED, OTHERWISE YOU DO NOT ARRIVE AT THE BALANCE OF PROFITS, INDE ED, OTHERWISE YOU DO NOT ASCERTAIN, AND' CANNOT ASCERTAIN, WHETHER THERE IS SUCH A THING AS PROFIT OR NOT. T HE PROFI T OF A TRADE OR BUSINESS IS THE SURPLUS BY WHICH THE RECEIPTS FROM THE TRA DE OR BUSINESS EXCEED THE EXPENDITURE NECESSARY FOR THE PURPOSE OF EARNING THOSE RECEIPTS. THAT SEEMS TO ME TO BE THE MEANING OF THE WORD 'PROFITS' IN RELATION TO ANY TRADE O R BUSINE SS. UNLESS AND UNTIL YOU HAVE ASCERTAINED THAT THERE IS SUCH A BALANCE, NO THING EXISTS TO WHICH THE NAME 'PROFITS' CAN PROPERLY BE APPLIED.' ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 8 43. IN BHARAT EARTH MOVERS V. COMMISSION OF INCOME TAX (SUPRA), THE SUPREME COURT HAD AN OCCASION TO EXPLA IN THE D ISTINCTION BETWEEN ACCRUED AND CONTINGENT LIABILITY. THERE THE ASSESSEE COM PANY HAD TWO SETS OF EMPLOYEES - ONE COVERED BY THE EMPLOYEES STA TE INSURANCE SCHEME (DESCRIBED AS 'STAFF') AND THE OTHER NOT SO COVERED (TERMED AS 'OFFICERS'). THE ASSESSEE HAD FLO ATED BENEFICIAL SCHEMES FOR ITS EMPLOYEES FOR ENCASHMENT OF LEAVE IN TERMS OF WHICH THE OFFICERS WERE ENTITLED TO THIRTY DAYS EARNED LEAVE W HEREAS THE STAFF WERE ENTITLED TO EIGHTEEN DAYS VACATION LEAVE. WHILE THE EARNED LEAVE COULD BE ACCUMULATED UP TO 24 0 DAYS, THE VACATION LEAVE COULD BE ACCUMULATED UP TO 126 DAYS. EITHER LEAV E COULD BE ENCASHED SUBJECT TO THE CEILING ON ACCUMULATION. THERE WAS AN OPTION TO AVAIL THE ACCUMULATED LEAVE OR IN LIEU THEREOF TO APPLY FOR ENCASHMENT WHEREUPON THE STAFF OR THE OFFICER CONCERNED WOULD BE PAID SALARY FOR THE PERIOD OF LEAVE EARNED BUT N OT AVAILED. A FUND WAS CREATED BY THE ASSESSEE FOR MEETING THIS L IABILITY AND DURING THE AY 1978 - 79, A SUM OF RS.62,25,483/ - WAS SET APART FOR THE PURPOSE OF ENCASHMENT OF T HE LEAVE . ALTHOUGH THE ITAT HELD THE ASSESSEE TO BE ENTITLED TO CLAIM THE SAID SUM AS DEDUCTION, THE HIGH COURT WAS OF THE VIEW THAT IT WAS NOT. THE SUPREME COURT EXPLAINED AS UNDER: 'THE LAW IS SETTLED: IF A BUSINESS LIABILITY HAS DEFINITELY ARISEN IN TH E ACCOUN TING YEAR, THE DEDUCTION SHOULD BE ALLOWED ALTHOUGH THE LIABILITY MAY HAVE T O BE QUANTIFIED AND DISCHARGED AT A FUTURE DATE. WHAT SHOULD BE CERTAIN IS THE INCURRING OF THE LIABILITY. IT SHOULD ALSO BE CAPABLE OF BEING ESTIMATED WITH REASONABLE CERT AINTY TH OUGH THE ACTUAL QUANTIFICATION MAY NOT BE POSSIBLE. IF THESE REQUIREMENTS AR E SATISFIED THE LIABILITY IS NOT A CONTINGENT ONE. THE LIABILITY IS IN PRESENT THOUGH IT WILL BE DISCHARGED AT A FUTURE DATE. IT DOES NOT MAKE ANY DIFFERENCE IF THE FUTURE DATE ON WHICH THE LIABILITY SHALL HAVE TO BE DISCHARGED IS NOT CERTAIN.' 44. THE SUPREME COURT REFERRED TO AN EARLIER DECISION IN METAL BOX COMPANY OF INDIA LTD. V. THEIR WORKMEN (1969) 73 ITR 53 (SC) IN WHICH INTER ALIA IT WAS EXPLAINED AS UNDER: '(I) FO R AN ASS ESSEE MAINTAINING HIS ACCOUNTS ON MERCANTILE SYSTEM, A LIABILITY ALREADY ACCRUED, THOUGH TO BE DISCHARGED AT A FUTURE DATE, WOULD BE A PROPE R DEDUCTION WHILE WORKING OUT THE PROFITS AND GAINS OF HIS BUSINESS, REGARD BEING HAD TO THE ACCEPTED PRINCI PLES OF COMME RCIAL PRACTICE AND ACCOUNTANCY. IT IS NOT AS IF SUCH DEDUCTION IS PERMISSIBLE ONLY IN CASE OF AMOUNTS ACTUALLY EXPENDED OR PAID; (II) J UST AS RECEIPTS, THOUGH NOT ACTUAL RECEIPTS BUT ACCRUED DUE ARE BROUGHT IN FOR INCOME - TAX ASSESSMENT, SO ALS O LIABIL ITIES ACCRUED DUE WOULD BE TAKEN INTO ACCOUNT WHILE WORKING OUT THE PROFITS AND GAINS OF THE BUSINESS; (III) A CONDITION SUBSEQUENT, THE FUL FILMENT OF WHICH MAY RESULT IN THE REDUCTION OR EVEN EXTINCTION OF THE LIABILITY, WOULD NOT HAVE THE EFFECT OF CONVE RTING THAT LIABILITY INTO A CONTINGENT LIABILITY; (IV) A TRADER COMPUTING HIS TAXABLE PROFITS FOR A PARTICULAR YEAR MAY PROPERLY DEDUCT NOT ONLY THE PAYMENTS ACTUALLY MADE TO HIS EMPLOYEES BUT ALSO THE PRESENT VALUE OF ANY PAYMENTS IN RESPECT OF TH EIR SERV ICES IN THAT YEAR TO BE MADE IN A SUBSEQUENT YEAR IF IT CAN BE SATISFACTORILY ESTIMATED.' TAKING INTO ACCOUNT, THE ABOVE NOTED JUDGMENT OF HON`BLE DELHI HIGH COURT(SUPRA), WE NOTE THAT IN ASSESSEE`S CASE THE RIGHT TO RECEIVE THE AMOUNT OF ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 9 SHARE C APITAL/P REMIU M HAS ACCRUED AND THEREFORE, THE AO HAS RIGHTLY INVOKED SECTION 68 OF THE ACT. WE FIN D THAT LD DR IS R IGHT I N OBSERVING THAT SHARE CAPITAL /SHARE PREMIUM, WHICH WAS CREDITED IN TH E F.Y.2011 - 12 ATTRACTS THE PROVISIONS OF SECTION 68 OF THE ACT AN D CONSEQ UENTLY THE LD CIT(A) IS WRONG IN DELETING THE ADDITION , THEREFORE I N THESE CIRCUMSTANCES, WE HAVE TO SET ASIDE THE IMPUGNED ORDER OF LD CIT(A) . 9 . NOW THE NE XT QUESTION ARISES AS TO WHETHER WE SHOULD REMAND THE MERITS OF THE ADDITIONS , TO THE F ILE OF L D CIT(A) OR TO THE FILE OF L D AO. WE NOTE FROM PERUSAL OF THE IMPUGNED ORDER [ VIDE PARA 4.3 OF ORDER OF CIT (A) ], THAT LD CIT(A) HAS TAKEN NOTE OF THE FACT THAT ASSESSING OFFICER, DURING THE ASSESSMENT PROCEE DINGS ISSUED NOTICES UNDER SECTION 133 (6) OF T HE ACT, TO THE SHARE SUBSC RI BING COMPANIES . T HE SHARE SUBSC RI BING COMPANIES HAVE RESPONDED TO THE NOTICE S UNDER SECTION 133(6) OF THE ACT BY FILING THE DETAILS SOUGHT FOR BY ASSESSING OFFICER , HOWEVER, THE ASSESSING OFFICER HAD NOT MENTIONED TH ESE F ACT S I N HIS ASSESSMENT ORDER . THEREAFTER, THE ASSESSING OFFICER DID NOT TAKE ANY ENDEAVOR TO ENQUIRY FURTHER ABOUT THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF S HARE SUB SCRIBING COMPANIES. THE AO PASSED ONE PAGE CRYPTIC ASSESSMENT OR DER . THE AO HAS NOT EVE N ISSUED NOTICE UNDER SECTION 131 OF THE ACT [ IF NOT SATISFIED WITH REPLY U/S133(6) OF THE ACT ] TO THE DIRECTORS OF THE ASSESSEE COMPANY AND SHARE SUBSCRIBING COMPANIES TO EXAMINE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE S HARE CAPITAL/ PREMIUM . AFTER DOING THIS, THE AO COULD HAVE DRAWN ADVERSE INFERENCE AGAINST THE ASSESSEE. B EFORE MAKING ANY ADDITION UNDER SECTION 68 OF THE ACT, THE AO OUGHT TO HAVE CALLED UPON THE ASSESSEE TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF CASH CREDIT APPEARING IN THE BOOKS OF THE ASSESSEE DURING THE PREVIOUS YEAR. THIS AC TION OF THE AO CAN NOT BE COUNTENA NCED . IT SHOULD BE KEPT IN MIND THAT A O IS A QUASI - JUDICIAL AUTHORITY WHO SHOULD ACT IN F AIR AND JUST MANNER TO DETER MINE THE INCOME OF THE A SSESSEE IN ACCORDANCE T O LAW. ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 10 10. BE T HAT AS IT MAY BE, WE NOTE THAT SINCE THE EXERCISE TO FIND OUT THE IDENTITY, CREDITWORTHINESS AND GENUINENESS HAVE NOT BEEN CARRIED OUT BY THE AO . HOWEVER, LD COUNSEL SUBMIT TED BEFORE US THAT IF AN OPPORTUNI TY IS GIVE N, THE A SSESSEE IS READY TO MAKE COMPLIANCE , THEREFORE, THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER. T HE LD C OUNSEL FURTHER SUBMIT TED THAT THE DIRECTORS OF THE SHARE SUBSCRIBING COMPANIES AND ASSESSEE C OMPANY WERE OUT OF STATION THEREFO RE, THEY COULD NOT APPEA R BE F ORE THE AO DURING THE ASSESSMENT PROCEEDINGS . H OWEVER, LD COUNSEL UNDERTAKES TO PRODUCE THE DIRECTORS OF THE ASSESSEE COMPANY AND SHARE SUBSCRIBING COMPANIES , PROVIDED AN OPPORTUNITY IS GIVEN TO ASSESSEE TO PRESENT HIS CASE BEF ORE THE ASSESSING OFFICER. H OWEVER, LD DR SUBMITTED THAT DIRECTORS OF THE A SSESSEE C OMPANY AND SHARE SUBSCRIBING COMPANIES DELIBERATELY DID NOT APPEA R BEFORE AO THEREFORE THEY CAN NOT BE GIVEN SECOND INNINGS. HOWEVER, WE NOTE THAT IT IS NOT A CASE THAT AS SESSEE DID NOT PARTICIPATE A T ALL DURING THE ASSESSMENT PROCEEDINGS B E FORE THE AO. THE AO HA D ACKNOWLEDGED IN ASSESSMENT ORDER THAT ASSESSEE HAD PRODUCED BOOKS OF ACCOUNTS AND FILED SUBMISSIONS ETC, AS CALLED FOR BY ISSUANCE OF NOTICE UNDER SECTION 142(1) OF THE ACT. HOWEVER, AS WE EX PLAINED ABOVE THAT AO HA S FAILED TO DISCHARGE H IS OBLIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. BESIDES, A T THE TIME OF HEARING , THE LD. COUNSEL INFORMED US THAT IN SIMILAR CASE OF GROUP COMPA NY`S, THE MATTER WERE REMANDED BACK BY THE TRIBUNAL TO THE FILE OF THE ASSES SING OFFICER TO EXAMINE IDENTITY, CR EDITWORTHINESS AND GENUINENESS OF THE SHARE SUBSCRIBING CO MPANIES. 11. ACCORDING TO LD COUNSEL, NO PROPER OPPORTUNITY HAS BEEN GIVEN TO THE ASS ESS EE AT THE ASSESSMENT STAGE THEREFORE, HE PRAYED THE BENCH THAT THE MATTER SHOULD BE REMITTED BACK TO THE F ILE OF THE ASSESSING OFFICER FOR FRESH ASSESSMENT. WE NOTE THAT SINCE THERE WAS LACK OF OPPORTUNITY TO THE ASSE SSEE AT THE ASSESSMENT STAGE ITS ELF, AS NARRATED ABOVE , THEREFOR E, W E ARE OF THE VIEW THAT ONE MORE ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 11 OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PLEAD HIS CASE BEFORE AO , HENCE THE ASSESSMENT NEEDS TO BE DONE AFRESH AND THEREFORE THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE AO . FOR T HAT WE RELY ON THE JUDGMENT OF T HE HONBLE (THREE JUDGE BENCH) OF THE HONBLE SUPREME COURT IN TIN BOX COMPANY V S. CIT (2001) 249 ITR 216 (SC) , WHEREIN IT WAS HELD AS FOLLOWS : WE NOTE THAT THE HONBLE SUPREM E COURT (THREE JUDGES BEN CH) IN THE CASE OF TI N BOX, (SUPRA), HAS HELD THAT SINCE THERE WAS LACK OF OPPORTUNITY TO THE ASSE SSEE AT THE ASSESSMENT STAGE ITS ELF, THE ASSESSMENT NEEDS TO BE DONE AFRESH AND THEREBY REVERSED THE HONBLE HIGH COURT, TRIBUNAL AN D CIT(A)S ORDERS AND REM ANDED THE MATTER BACK TO AO FOR FRESH ASSESSMENT. IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT - FINDING AUTHORITY, THAT READS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESS E ES SUBMISSION THAT T HE INCOME - TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD. THAT THE ASSE SSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS TH E ASSESSMENT ORDER THA T COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF SETTIN G OUT HIS CASE. WE, THEREFORE, D O NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPO RTUNITY OF BEING HEARD. TWO QUE STIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUE S TION READS THUS : 1 . WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTIN G ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME - TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY O F HEARING TO THE ASSES SEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THIS QUESTION WHICH IS INHERENT IN THE QUESTIO N ITSELF : IN THE NEGATIVE AND I N FAVOUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSE S SMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL ARE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRE SH CONSIDERATION, AS AFORESTATED . 1 2 . IN THE LIGHT OF THE HONBLE S UPREME COURTS DECISION IN THE CASE OF TIN B OX COMPAN Y (SUPRA) , WE ARE OF T HE VIEW THAT MATTER SHOULD BE REMITTED BACK TO ITA NO. 2170/KOL/1 6 M/S. ROLEX TRAFIN PVT. LTD. 12 THE FILE OF THE AO FOR FRESH EXAMI NATION OF CAS H CREDIT UNDER SECTION 68 OF THE ACT. T HEREFORE, T AKING INTO ACCOUNT, THE TOT ALITY OF THE F ACTS AND CIRCUMSTANCES, AS NARRATED ABOVE, WE S E T ASI DE THE ORDER O F CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF ASSESSING OFFICER, FOR DE NOVO ASSESS MEN T, WITH A LIBERTY TO THE ASSESSEE TO PROVE HIS CASE BY PRODUCING SUFFICIENT EV IDENCE/MATERI AL TO THE SATISFACTION OF THE ASSESSING OFFIC ER. FOR S T ATISTICAL PURPOSES THE APPEAL OF THE REVENUE IS ALLOWED. 1 3 . IN THE RESULT, THE APPEAL OF THE REVENUE IS AL LOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COU RT ON THIS 25 /0 9 /201 9 . SD/ - (A.T. VARKEY ) SD/ - (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTA NT MEMBER /KOLKATA; DATED: 25 / 0 9 /201 9 *PP , S R. PS / COPY OF THE ORDER FORWARDED TO : . 1. / THE APPE LLANT /DEPARTMENT: I NCOME TAX OFFICER, WARD 11(1), P - 7 CHOWRINGHEE SQUARE, 6 TH FLOOR, KOLKATA - 69. 2. / THE RESPONDENT /ASSESSEE . - M/S. ROLEX TRAFIN PVT. LTD 12/2 PARK MANSION, 57A PARK ST., KOLKATA - 16. 3. ( ) / THE CIT(A), 4. / CIT 5 . , , / DR, ITAT, KOLKATA 6. / GU ARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA .