DCIT, CIR-10(1), KOLKATA, Kolkata V. Vivek Kr. Kathodia, Kolkata

ITA 377/KOL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0745 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 09-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TR IBUNAL KOLKATA C BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI ABY T. VARKEY, JUDICIAL MEMBER] I.T.A. NO. 377/KOL/2015 ASSESSMENT YEAR: 2009-10 D.C.I.T., CIRCLE-10(1), KOLKATA ... APPELLANT D.C.I.T. CIRCLE-10(1), P-7, CHOWRINGHEE SQUARE 3 RD FLOOR KOLKATA 700 069 VIVEK KUMAR KATHODIA...... ...RESPONDENT 6/D, NELLY SENGUPTA SARANI (FORMERLY KNOWN AS LINDSAY STREET) KOLKATA 700 087 [PAN : AFAPK 8653 C] APPEARANCES BY: NONE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI G.MALLIKARJUNA, CIT, DR APPEARING ON BEHALF OF T HE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 7 TH , 2017 DATE OF PRONOUNCING THE ORDER : DECEMBER 21 ST , 2017 O R D E R PER J. SUDHAKAR REDDY :- THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-20, KOLKATA, ( HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE AC T), DT. 12/01/2015, FOR THE ASSESSMENT YEAR 2009-10, ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.14,16,442/- MAD E U/S.14A OF THE ACT, WITHOUT CONSIDERING THE FACT THAT THE INVESTMENT WER E MADE OUT OF INTEREST BEARING BORROWED FUND 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.6,08,43,906/- M ADE ON ACCOUNT OF 2 I.T.A. NO. 377/KOL/2015 ASSESSMENT YEAR: 2009-10 VIVEK KUMAR KATHODIA UNEXPLAINED CASH BY NOT CONSIDERING THE REPORT OF FO RENSIC DEPARTMENT AND RELYING ON JUDGEMENT OF ITAT IN THE CASE OF THE ASSES SEE FOR EARLIER YEARS, WITHOUT TAKING INTO ACCOUNT THAT THE DEPARTMENT IS IN APPEAL BEFORE THE HON'BLE HIGH COURT AGAINST THE SAID ORDER OF ITAT. 3. THAT THE APPELLANT CRAVES FOR LEAVE TO ADD, DELET E OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR ALL THE TIME OF HEARING. 2. THE APPLICATION OF THE LD. COUNSEL FOR THE ASSES SEE FOR ADJOURNMENT IS REJECTED AS, IN OUR VIEW, THIS IS NOT A FIT CASE FOR GRANT O F ADJOURNMENT. 3. AFTER HEARING THE LD. D/R, WE FIND THAT ON THE I SSUE OF DISALLOWANCE U/S 14A OF THE ACT, THE LD. CIT(A) HAS HELD THAT THE ASSESSEE HAS NOT USED BORROWED FUNDS FOR THE PURPOSE OF INVESTMENTS. HE GAVE A FACTUAL FINDING T HAT THE INVESTMENTS IN SHARES WERE MADE OUT OF THE ASSESSEES OWN FUNDS. THE ASSESSEE HAD OPENED A CAPITAL OF RS.26.45 CRORES AND CLOSING STOCK CAPITAL OF RS.25.92 CRORES AND WHEREAS THE INVESTMENT IN SHARE WAS RS.14.76 CRORES. THIS FACTUAL FINDING OF THE LD. FIRST APPELLATE AUTHORITY, COULD NOT BE CONTROVERTED BEFORE US BY THE LD. D/R. THE CONTENTION IS THAT, IT SHOULD BE SET ASIDE TO THE ASSESSING OFFICER FOR VERIFICATION . WE DO NOT FIND ANY MERIT IN THIS CASE AS THE FACTUAL FINDINGS OF THE LD. FIRST APPELLATE AUTHORITY, HAS NOT BEEN CONTROVERTED BEFORE US. THE DECISION OF THE LD. CIT(A) IS IN LIN E WITH THE DECISION OF THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT .V. HDFC BANK LTD.(2014) 366 ITR 505(BOM.) (HC) . THUS, WE UPHOLD THIS FINDING OF THE LD. CIT(A) AN D DISMISS THIS GROUND OF THE REVENUE. 4. COMING TO GROUND NO.2, WE FIND THAT THE TRIBUNAL IN THE ASSESSEES OWN CASE, HAS ADJUDICATED THE ISSUE ON THE VERY SAME FACTS FO R THE IMMEDIATELY PRECEDING ASSESSMENT YEAR, I.E., 2008-09. THE GROUND OF THE R EVENUE SAYS THAT, THIS APPEAL IS FILED BECAUSE THE DEPARTMENT HAD NOT ACCEPTED THE TRIBUNA LS DECISION AND HAS CARRIED THE MATTER IN APPEAL BEFORE THE HONBLE HIGH COURT. 4.1. UNDER THESE FACTS AND CIRCUMSTANCES, WE HAVE N O HESITATION IN FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL I N THE ASSESSEES OWN CASE ON THE 3 I.T.A. NO. 377/KOL/2015 ASSESSMENT YEAR: 2009-10 VIVEK KUMAR KATHODIA VERY SAME ISSUE, WHICH WAS FOLLOWED BY THE LD. CIT( A) IN THE IMPUGNED ORDER. THUS, WE DISMISS THIS GROUND OF THE REVENUE. 5. IN THE RESULT, THIS APPEAL OF THE REVENUE IS DIS MISSED. KOLKATA, THE 21 ST DAY OF DECEMBER, 2017. SD/- SD/- [ ABY T. VARKEY ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT M EMBER DATED : 21.12.2017 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. VIVEK KUMAR KATHODIA 6/D, NELLY SENGUPTA SARANI (FORMERLY KNOWN AS LINDSAY STREET) KOLKATA 700 087 2. D.C.I.T., CIRCLE-10(1), KOLKATA D.C.I.T. CIRCLE-10(1), P-7, CHOWRINGHEE SQUARE 3 RD FLOOR KOLKATA 700 069 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES