CD Equuisearch Pvt. Ltd., Kolkata V. DCIT, Circle-7,Kolkata, Kolkata

ITA 559/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70467 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR SWETABH SUMAN
• Assessee Lawyers: D S DAMLE
• Keywords: Business income; Additional evidence; Speculation loss
• Section: 263; 28; 154; 2; 143(3); 142(1); 14A; 80G; 43(5)

Judgement Text

I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA CORAM : SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI ABRAHAM P. GEORGE (ACCOUNTANT MEMBER) I.T.A. NO.: 559/KOL./ 2012 ASSESSMENT YEAR : 2007-2008 C.D. EQUISEARCH PVT. LTD., ........................ .........APPELLANT 37, SHAKESPEARE SARANI, KOLKATA-700 017 [PAN :AABCC 0795 N] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ......RESPONDENT CIRCLE-7, AAYAKAR BHAWAN, KOLKATA & S.P. NO. 66/KOL/2013 (ARISING OUT OF ITA NO. 559/KOL/2012) ASSESSMENT YEAR : 2007-2008 C.D. EQUISEARCH PVT. LTD., ........................ .........PETITIONER 37, SHAKESPEARE SARANI, KOLKATA-700 017 [PAN :AABCC 0795 N] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ......RESPONDENT CIRCLE-7, AAYAKAR BHAWAN, KOLKATA APPEARANCES BY: SHRI D.S. DAMLE, A.R., FOR THE APPELLANT DR. SWETABH SUMAN, CIT, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : NOVEMBER 28, 2013 DATE OF PRONOUNCING THE ORDER : DECEMBER 30, 2013 O R D E R PER ABRAHAM P. GEROGE : 1. IN THIS APPEAL, ASSESSEE ASSAILS AN ORDER DATED 29 TH MARCH, 2012 PASSED BY THE LD. COMMISSIONER OF INCOME TAX, KOLKA TA-III, KOLKATA UNDER I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 2 SECTION 263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) FOR ASSESSMENT YEAR 2007-08. 2. GROUNDS RAISED BY ASSESSEE ARE AS UNDER :- (1) FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT ERRED IN LAW AND ON FACTS IN SETTING ASIDE THE ORDER OF THE AO PASSED U/S. 143(3) FOR THE A.Y. 2007-08 HOLDING IT BE AN ERRONEOUS IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF THE REVENUE EVEN THOUGH THE SAID ASSESSMENT ORDER WAS NETHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. 2. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT WAS UNJUSTIFIED IN LAW IN HOLDING THE ASSESSMENT U/ S. 143(3) TO BE ERRONEOUS BECAUSE THE AO DID NOT ASSESS LOSS INCURRED IN THE BUSINESS OF SHARE TRADING AS DEEMED SPECULATION LOS S WITHIN THE MEANING OF THE EXPLANATION TO SEC 73 OF THE I.T. AC T. 3. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT ERRED IN HOLDING THE ASSESSMENT ORDER TO BE ERR ONEOUS FOR NON APPLICATION OF THE EXPLANATION TO SEC 73 IGNORING T HE FACT THAT THE . APPELLANT HAD ALSO EARNED INCOME FROM OTHER BUSINES S ACTIVITIES IN CONSISTING OF PURCHASE & SALE OF SHARES AND THEREFO RE THE CIT ERRED IN DIRECTING THE AO TO TREAT ONLY THE TRANSACTIONS INVOLVING THE ' PURCHASE & . SALE OF SHARES AND RESULTING IN LOSS TO BE REGARDED AS LOSS IN SPECULATION BUSINESS. 4. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT FAILED TO APPRECIATE THAT THE APPELLANT CARRIED ON A SINGLE INDIVISIBLE AND COMPOSITE BUSINESS; CARRIED THROUGH DIFFERENT SEGMENTS OF THE CAPITAL MARKET WHEREIN THE UNDERLYI NG TRANSACTIONS INVOLVED PURCHASE & SALE OF SHARES AND THEREBY THE CIT ERRED IN CONSIDERING ONLY ONE SEGMENT OF SUCH BUSINESS TRANS ACTIONS FOR APPLYING THE EXPLANATION TO SEC 73 OF THE ACT . 5. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, T H E CIT ERRED IN TREATING THE ORDER OF ASSESSMENT TO BE ERRONEOUS EVEN THOUGH THE COURSE FOLLOWED BY THE AO IN ALLOWING SE T OFF OF FOR LOSS IN ONE BUSINESS SEGMENT AGAINST PROFIT DERIVED FROM ANOTHER BUSINESS SEGMENT INVOLVING UNDERLYING TRANSACTIONS OF PURCHASE & SALE OF SHARES; WAS ONE OF THE PERMISSIBLE COURSE I N LAW AND THEREFORE THE CIT ERRED IN INVOKING REVISIONARY POW ERS U/S. 263 OF THE ACT . I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 3 6. FOR THAT ON THE FACTS AND ' IN THE CIRCUMSTANCES OF THE CASE, THE CIT ERRED IN HOLDING THAT THE APPELLANT WAS NOT ENT ITLED TO SET OFF SHARE BROKERING INCOME AGAINST LOSS IN BUSINESS OF PURCHASE & SALE OF SHARES EVEN THOUGH IN BOTH THE ACTIVITIES THE UNDER LYING TRANSACTIONS INVOLVED PURCHASE & SALE OF SHARES. 7. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE CIT ERRED IN HOLDING THE ASSESSMENT ORDER TO BE ERR ONEOUS EV E N THOUGH AS PER THE JUDGMENT OF . JURISDICTIONAL HIGH COURT; LOSS IN SHARE TRADING WAS PERMISSIBLE TO BE SET OFF AGAINST SHARE BROKING INCOME AND THE AO HAVING FOLLOWED ONE OF THE PERMIS SIBLE COURSE IN LA W THE CIT WAS UNJUSTIFIED IN HOLDING THE ASSESSMENT T O BE ERRONEOUS AND THEREBY SETTING ASIDE T HE ASSESSMENT U/S. 263 OF THE ACT . 8. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CAS E, THE CIT WAS UNJUSTIFIED IN LAW IN HOLDING THAT THE APPE LLANT W AS NOT ENTITLED TO SET OFF INCOME DERIVED FROM DERIVATIVE SEGMENT S AGAINST THE LOSS SUFFERED IN TRADING IN CASH SEGMENT EVEN T HOUGH THE APPELLANT HAD ESTABLISHED DIRECT AND PROXIMATE CAUS E AND NEXUS BETWEEN THE APPELLANT'S TRANSACTIONS IN CASH AND FU TURES SEGMENTS RELATING TO SHARES OF LISTED COMPANIES . 9. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE ORDER PASSED BY THE COMMISSIONER U/S. 263 BE SET AS IDE AND THE ORDER OF THE AO DATED 24.12.2009 PASSED U/S. 143(3) FOR T HE A.Y. 2008-08 BE RESTORED. 10. FOR THAT THE APPELLANT CRAVES LEAVE TO SUBMIT A DDITIONAL GROUNDS AND/OR AMEND OR ALTER THE GROUNDS ALREADY TAKEN EIT HER AT THE TIME OF HEARING OF THE APPEAL OR BEFORE. 3. LD. COUNSEL FOR THE ASSESSEE IN SUPPORT OF THE A BOVE GROUNDS SUBMITTED THAT ORIGINAL ASSESSMENT WAS COMPLETED FO R THE IMPUGNED ASSESSMENT YEAR ON 24.12.2009 UNDER SECTION 143(3) OF THE ACT AFTER VERIFYING THE DOCUMENTS PRODUCED BY THE ASSESSEE IN DETAIL. AS PER LD. A.R., ASSESSEE WAS A STOCK BROKER HAVING TRANSACTIO NS IN DIFFERENT SEGMENTS. SOME OF THE TRADING IN SHARES WERE ON ITS OWN ACCOUNT, WHEREAS SOME OTHERS WERE IN CLIENTS ACCOUNT. AS PER LD. A.R ., ASSESSING OFFICER HAD PROPERLY CONSIDERED ALL THE ISSUES RELATING TO THE COMPUTATION AND ASSESSED THE INCOME OF THE ASSESSEE AFTER MAKING DI SALLOWANCE UNDER I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 4 SECTION 14A OF THE ACT. DESPITE THIS, THE LD. CIT O N 10.08.2011 ISSUED A NOTICE UNDER SECTION 263 OF THE ACT, WHICH, INTER A LIA, MENTIONED THAT ASSESSEE HAD CLAIMED A LOSS OF RS.11.91 CRORES IN S HARE TRADING BUSINESS WHICH WAS SET OFF AGAINST OTHER BUSINESS INCOME, IN CONTRAVENTION OF EXPLANATION TO SECTION 73 OF THE ACT. LD. A.R. POIN TED OUT THAT ASSESSEE HAD GIVEN A DETAILED REPLY TO THE ABOVE NOTICE ON 0 6.09.2011 (COPY OF WHICH IS PLACED AT PAPER BOOK PAGES 5 TO 21). ACCOR DING TO HIM, IT WAS SPECIFICALLY POINTED OUT THAT ASSESSEE HAD NOT SUFF ERED ANY LOSS IN PURCHASE AND SALE OF SHARES AND HAD EARNED A PROFIT OF RS.3,25,96,929/- IN CASH AND FUTURES SEGMENT'. LD. AR STATED THAT THE ASSESSEE HAD VARIOUS CLASSES OF INCOME, UNDER THE HEAD INCOME FROM BUSI NESS/PROFESSION, DURING THE RELEVANT PREVIOUS YEAR. FURTHER AS PER L D. AR, CIT WAS WELL AWARE THAT THE NET LOSS SUFFERED IN PURCHASE AND SA LE OF SHARES AND UNITS CAME TO RS.6,37,37,827/- AND NOT RS.11.91 CRORES ME NTIONED BY HIM. 4. CONTINUING HIS ARGUMENTS, LD. AR SUBMITTED THAT THIS WAS NOT A CASE WHERE EXPLANATION TO SECTION 73 COULD BE INVOKED. F URTHER ACCORDING TO HIM ASSESSEE HAD REPLIED TO LD. CIT AS TO WHY EXPLA NATION TO SECTION 73 COULD NOT BE INVOKED. THE LOSS IN SHARE TRADING EVE N IF CONSIDERED AS ARISING OUT OF SPECULATION BUSINESS HAD TO BE SET O FF AGAINST PROFIT IN DERIVATIVE TRADING WHICH ALSO CAME WITHIN THE PURVI EW OF SPECULATIVE TRANSACTIONS. LD. AR, STRESSED THAT SHARE TRADING A S WELL AS DERIVATIVE TRADING WERE DONE BY ASSESSEE USING THE SAME PLATFO RM AND INFRASTRUCTURE. ACCORDING TO HIM ALL THE TRANSACTIO NS WERE DONE USING THE SAME TERMINAL, FROM THE SAME PLACE OF BUSINESS. THE REFORE, IF AT ALL THE BUSINESS OF ASSESSEE WAS TO BE CONSIDERED AS SPECUL ATIVE IN NATURE, IT HAD TO BE SO RECKONED CONSIDERING THE TOTALITY AND NOT SEGMENT-WISE. DESPITE ALL THESE, AS PER LD. AR, LD. CIT PERSISTED WITH HI S VIEW THAT THE ORIGINAL ORDER SUFFERED FROM SOME ERROR WHICH WAS PREJUDICIA L TO THE INTEREST OF THE REVENUE. LD. A.R. POINTED OUT THAT LD. CIT WHIL E ACCEPTING ASSESSEES CASE TO BE SUPPORTED BY THE DECISION OF A COORDINAT E BENCH OF THIS TRIBUNAL IN ITO VS.- M/S. SAND DUNE TRADE (P) LTD. (ITA NOS. 2075 & I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 5 2076/KOL/2008, DATED 24.04.2009), DECLINED TO FOLLO W IT, FOR NO VALID REASON. AS PER THE LD. D.R. THE SAID DECISION OF TR IBUNAL HAD BECOME FINAL, SINCE REVENUES APPEAL AGAINST IT STOOD DISMISSED B Y HONBLE JURISDICTIONAL HIGH COURT VIDE JUDGMENT IN ITAT NO. 146 OF 2010 DATED 21.07.2010 (PAPER BOOK PAGES 26 TO 27). AS PER LD. AR, LD. CIT HAD ERRONEOUSLY PLACED RELIANCE ON A DECISION OF HONBL E MUMBAI BENCH OF THIS TRIBUNAL IN THE CASE OF PRIYASHA MEVEN FINANCE LIMITED VS.- ITO [(2009) 119 ITD 163] WHEREIN IT WAS HELD THAT, AN A SSESSEE COULD NOT CLAIM SET OFF OF LOSS SUFFERED FROM PURCHASE AND SA LE OF SHARES WITH BROKERAGE AND OTHER INCOME. AS PER LD. AR, ASSESSEE S ALTERNATIVE ARGUMENT THAT PROFIT FROM DERIVATIVE TRADING SHOULD BE ALLOWED FOR SET OFF AGAINST LOSS FROM SHARE TRADING ALSO DID NOT FIND F AVOUR WITH THE LD. CIT. 5. FURTHER CONTINUING IN THE SAME VEIN, LD. AR SUBM ITTED THAT THE VIEW TAKEN BY LD. CIT WAS TOTALLY INCORRECT. IN THE FIRS T PLACE, ASSESSING OFFICER HAD DONE THE ORIGINAL ASSESSMENT UNDER SECTION 143( 3) AFTER CALLING FOR DETAILS. AS PER LD. AR NOT ONLY SHOULD THERE BE AN ERROR IN THE ORDER OF ASSESSMENT, BUT SUCH ERROR SHOULD BE PREJUDICIAL TO THE INTEREST OF REVENUE FOR INVOKING REVISIONARY JURISDICTION UNDER SECTION 263 OF THE ACT. HE POINTED OUT THAT ASSESSEE HAD SUFFERED LOSS FROM SHARE TRADING AS ALSO DERIVATIVE TRADING, AND EARNED INCOME FROM BRO KERAGE AND INTEREST. AS PER LD. AR, DERIVATIVE TRADING ALSO FELL WITHIN THE SCOPE OF SPECULATION BUSINESS. LD. CIT HAD CONSIDERED ONLY SHARE TRADING TO BE SPECULATIVE IN NATURE. IN SO FAR AS TRADING OF UNITS WAS CONCERNED , LD. AR POINTED OUT THAT HONBLE APEX COURT IN THE CASE OF CIT VS.- AP OLLO TYRES LTD. [255 ITR 273] CLEARLY HELD THAT UNITS COULD NOT BE CONST RUED AS EQUIVALENT TO SHARES AND EXPLANATION TO SECTION 73 APPLIED ONLY T O SHARES. AS PER LD. AR, ALLEGED SPECULATIVE LOSS WAS THEREFORE CONFINED TO THE SHARE TRADING LOSS OF RS.2,09,02,062/-. FURTHER, HE POINTED OUT THAT D ERIVATIVE TRADING WAS DONE ONLY FOR HEDGING THE CASH TRADING IN SHARES. R ELYING ON THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. GUINESS SECURITIES LTD. VS.- DCIT (ITA NOS. 894& 895/KOL/2007, ORDER DATED 29.06.2007), I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 6 COPY OF WHICH HAS BEEN PLACED AT PAGES 28-35 OF PAP ER BOOK, LD. AR SUBMITTED THAT SECTION 43(5) DID NOT IN ANY WAY IMP EDE THE APPLICATION OF EXPLANATION TO SECTION 73. ACCORDING TO HIM, TRADIN G IN DERIVATIVE MAY NOT BE A SPECULATIVE TRANSACTION UNDER SECTION 43(5) OF THE ACT, BUT STILL LOSS ARISING THEREFROM COULD BE SPECULATIVE LOSS, CALLIN G FOR APPLICATION OF EXPLANATION TO SECTION 73 OF THE ACT. AS PER LD. AR , LOSS IN SHARE TRADING AND PROFIT IN DERIVATIVE TRADING WERE BOTH PART OF THE SAME BUSINESS OF THE ASSESSEE. EVEN BROKERAGE INCOME, INTEREST INCOM E, WHEN THESE WERE INTEGRAL TO THE SHARE TRADING BUSINESS OF AN ASSESS EE, CAME WITHIN THE PURVIEW OF EXPLANATION TO SECTION 73 OF THE ACT IN VIEW OF COORDINATE BENCH DECISION IN SAND DUNE TRADE (P) LTD (SUPRA). AS PER THE LD. A.R. COORDINATE BENCH IN THE CASE OF GUINESS SECURITIES LTD. (SUPRA) HAD RELIED ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COUR T IN THE CASE OF CIT VS.- VIMAL KUMAR & CO. [161 ITR 413) AND HENCE SUCH DECISION HAS TO BE GIVEN PRIMACY. THUS AS PER THE LD. AR, DECISIONS OF COORDINATE BENCHES OF THIS TRIBUNAL IN THE CASE OF GUINESS SECURITIES LTD . VS.- DCIT (SUPRA) AS WELL AS SAND DUNE TRADE (P) LTD (SUPRA) BOTH SUPPOR TED ASSESSEES CONTENTION. MOREOVER ACCORDING TO HIM, INCOME FROM THE PROPRIETARY DERIVATIVE TRADING RS.4,58,12,554/- WAS ALSO TO BE CONSIDERED AS SPECULATIVE BUSINESS COMING WITHIN THE PURVIEW OF E XPLANATION TO SECTION 73 OF THE ACT AND, THEREFORE, ASSESSEE COULD SET OF F THE LOSS ARISING ON SHARE TRADING AGAINST SUCH AMOUNT. ONCE SUCH SET OF F WAS EFFECTED, NOTHING WHATSOEVER WAS LEFT IN THE NATURE OF ANY SP ECULATION LOSS AND, THEREFORE, THERE WAS NO ERROR IN THE ORDER OF ASSES SING OFFICER. 6. ALTERNATIVELY, ACCORDING TO LD. AR ASSESSEE WAS DOING AN INTEGRAL BUSINESS AND FOR THE PURPOSE OF SECTION 73(1) OF TH E ACT, THERE COULD BE NO ARTIFICIAL SEGREGATION. WHOLE BUSINESS OF THE AS SESSEE WAS ONE, BEING DONE FROM A COMMON PLATFORM THROUGH A COMMON TERMIN AL AND USING COMMON STAFF. ALL THE INCOME EARNED BY THE ASSESSEE WERE INTEGRALLY CONNECTED TO ITS SHARE TRADING ACTIVITY. ACCORDING TO HIM, IN SAND DUNE TRADE (P) LTD. (SUPRA), IT WAS CLEARLY HELD BY THE COORDINATE BENCH OF THIS I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 7 TRIBUNAL, IN A SIMILAR SITUATION THAT ENTIRE BUSINE SS HAS TO BE TREATED AS ONE. STATUTE HAD NOT MADE ANY DISTINCTION FOR PURCH ASE AND SALE OF SHARES MADE ON OWN BEHALF AND/OR ON BEHALF OF OTHERS. ACCO RDING TO HIM, ONCE IT WAS SO VIEWED, THE INTRA HEAD SET OFF OF LOSS IN THE PROFITS DONE BY THE ASSESSEE WAS JUSTIFIED. EVEN THE NAME AND ACCOUNT U SED FOR SHARE TRADING AND STOCK BROKING WAS THE SAME. ONCE ENTIRE ACTIVIT Y WAS ONE, SET OFF, AS ALLOWED BY THE ASSESSING OFFICER COULD NOT BE CONSI DERED AS ERRONEOUS. THOUGH ASSESSEE HAS FILED THREE DOCUMENTS, NAMELY C ERTIFICATE ISSUED BY NATIONAL STOCK EXCHANGE; DEMAT A/C. AND SAMPLE COPI ES OF CONTRACT AS ADDITIONAL EVIDENCE, LD. AR SUBMITTED THAT THESE NE ED NOT BE CONSIDERED AND HE WAS NOT PLACING RELIANCE ON ANY OF THEM. 7. IN ANY CASE, AS PER THE LD. AR, EVEN IF THERE WA S ANY ERROR IN THE ORDER OF THE ASSESSING OFFICER, THE SECOND CONDITIO N THAT SUCH ERROR SHOULD HAVE BEEN PREJUDICIAL TO THE INTEREST OF REV ENUE WAS NOT SATISFIED. AS PER LD. A.R. THE ASSESSING OFFICER HAD NOT COMMI TTED ANY MISTAKE FOR INVOKING SECTION 263 OF THE ACT. RELYING ON A DECIS ION DATED 19.10.2007 OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T VS.- SUBHAS PROJECTS & MARKETING LTD.[INCOME TAX APPEAL NO. 448 OF 2000 DATED 19.10.2001) COPY OF WHICH HAS BEEN PLACED AT PAGES 52 TO 67 OF THE PAPER BOOK, LD. A.R. SUBMITTED THAT SECTION 263 COULD BE INVOKED ON LY WHEN AN IMPOSSIBLE VIEW WAS TAKEN BY THE ASSESSING OFFICER. 8. PER CONTRA, LD. DR SUBMITTED THAT LD. CIT HAD CA REFULLY GONE THROUGH THE DECISION OF COORDINATE BENCH OF MUMBAI TRIBUNAL IN THE CASE OF PRIYASHA MEVEN FINANCE LIMITED (SUPRA) AND BASED ON THE FINDINGS THEREIN HELD THAT THE BUSINESS OF ASSESSEE IN TOTAL ITY COULD NOT BE CONSIDERED AS SPECULATION. AS PER LD. DR, ONLY IF T HE WHOLE OF THE BUSINESS CONSISTED OF PURCHASE AND SALE OF SHARES, IT COULD BE TREATED AS A SPECULATIVE BUSINESS IN ENTIRETY. HERE ASSESSEE WAS HAVING BUSINESS APART FROM PURCHASE AND SALE OF SHARES. SUCH OTHER ACTIVI TY COULD NOT BE TREATED AS SPECULATION BUSINESS. IN ANY CASE, ACCORDING TO HIM, ASSESSING OFFICER I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 8 HAD NOT MADE ANY EFFORT TO VERIFY THE NATURE OF BUS INESS DONE BY THE ASSESSEE. HE SIMPLY ACCEPTED WHAT WAS CLAIMED BY TH E ASSESSEE. SUCH NON-APPLICATION OF MIND RENDERED THE ASSESSMENT ORD ER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 9. IN REPLY, LD. AR SUBMITTED THAT THE ASSESSING OF FICER HAD CONSIDERED THE NATURE OF BUSINESS OF THE ASSESSEE AND TAKEN A VIEW THAT NONE OF INCOME WAS SPECULATIVE IN NATURE. ACCORDING TO HIM, THIS VIEW COULD NOT BE SUBSTITUTED BY A DIFFERENT VIEW BY LD. CIT. RELI ANCE WAS PLACED ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF MALAB AR INDUSTRIES CO. VS.- CIT [243 ITR 83] AND IN THE CASE OF CIT VS.- GREEN WORLD CORPORATION (2009) 314 ITR 81 (SC). 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO GONE THROUGH THE PAPER BOOK FILED BY LD. A.R. THOUGH ASSESSEE HAS FILED FOUR RECORDS AS ADDITIONAL EVIDENCE, NO RELIANCE WAS PLACED ON THESE BY THE LD. A.R. AND HE NCE, THESE ARE NOT CONSIDERED. 11. CLAIM OF THE ASSESSEE IS THAT ASSESSING OFFICER HAD TAKEN A LAWFUL VIEW AND LD. CIT WAS SUBSTITUTING SUCH LAWFUL VIEW WITH HIS OWN OPINION. FIRST QUESTION IS TO BE ANSWERED WHETHER ASSESSING OFFICER HAD TAKEN ANY VIEW IN THIS MANNER. ORIGINAL ASSESSMENT ORDER DATE D 24.12.2009 IS REPRODUCED HEREUNDER:- THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007- 08 WAS FILED BY THE ASSESSEE COMPANY ON 29.10.2007 DECLARING TOTAL INCOME OF RS.1,32,52,977/-. THE RET URN WAS DULY PROCESSED U/S. 143(1) ON 23.09.2008. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY U/ S. 143(3) ON COMPUTER THROUGH COMPUTER ASSISTED SCRUTI NY SECTION (CASS). NOTICE U/S. 143(2) WAS ISSUED ON 08.09.2008 AND DULY SERVED UPON THE ASSESSEE ON 24.09.2008. THEREAFTER, NOTICE U/S. 142(1) ALONG WI TH QUESTIONNAIRE DATED 02.06.2009 WAS ALSO ISSUED AND DULY SERVED ON THE ASSESSEE. IN RESPONSE TO THE SAID NOT ICES, MR. JAYESH VORA, DIRECTOR, AUTHORIZED REPRESENTATIV E OF I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 9 THE ASSESSEE COMPANY APPEARED FROM TIME TO TIME AND PRODUCED DOCUMENTS IN DETAIL. THE CASE WAS DISCUSSE D AND HEARD. THE ASSESSEE HAS CLAIMED DIVIDEND INCOME WHICH IS EXEMPT FROM TAXATION. HOWEVER, NO CORRESPONDING DISALLOWANCES HAVE BEEN MADE U/S. 14A. HENCE, AS PE R EXPLANATION OF THE ASSESSEE AN AMOUNT OF RS.77,184/ - IS BEING ADDED BACK TO THE TOTAL INCOME OF THE ASSESSE E. IN VIEW OF THE ABOVE DISCUSSION, TOTAL INCOME OF T HE ASSESSEE COMPANY IS COMPUTED AS UNDER :- I. INCOME FROM BUSINESS : AS SHOWN IN THE COMPUTATION OF INCOME: RS.1,39,50,5 02 ADD. : DISALLOWANCE U/S. 14A : RS. 77,1 84 II. INCOME FROM OTHER SOURCES : DIVIDEND : RS.4,33,58,4 23 LESS : EXEMPTED U/S. 10(34);RS.4,33,58,423 ________________________________ GROSS TOTAL INCOME :RS .1,40,27,686 LESS : DEDUCTION UNDER CHAPTER VIA UNDER SECTION 80G RS. 6,97,525 __________________________________ TOTAL INCOME : RS.1,33,30,161 ROUNDED OFF U/S.288A : RS.1,33,30,160/- IT IS MENTIONED BY THE ASSESSING OFFICER THAT ASSES SEES REPRESENTATIVE HAD FROM TIME TO TIME PRODUCED DOCUMENTS IN DETAIL. NATURE OF BUSINESS OF THE ASSESSEE IS ALSO MENTIONED BY THE ASSESSING OFFICER, AS STOCK BROKING. DURING THE COURSE OF ORIGINAL ASSESSMENT P ROCEEDINGS, ASSESSING OFFICER HAD ISSUED A NOTICE TO THE ASSESSEE ON 02.0 6.2009 UNDER SECTION 142 OF THE ACT REGARDING PARTICULARS OF ACCOUNTS AN D/OR DOCUMENTS/EVIDENCE/DETAILS, WHICH WERE TO BE PRODUC ED. THESE READ AS UNDER :- (1) BRIEF NOTE ON THE NATURE OF BUSINESS CARRIED ON BY YOU, (2) HARD COPY OF RETURN OF INCOME, (3) TAX AUDIT REPORT ALONG WITH ANNEXURE, (4) CERTIFIED COPY OF BALANCE-SHEET AND PROFIT & LOSS ACCOUNTS, (5) COMPUTATION OF INCOME, (6) COMPUTATION OF FRINGE BENEFIT TAX, I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 10 (7) NAME, ADDRESS, PAN AND ASSESSMENT JURISDICTION OF A LL THE DIRECTORS, (8) QUARTERLY BREAK-UP OF F.B.T. (9) DETAILS OF ALL BANK ACCOUNTS, INCLUDING ACCOUNT NUM BERS, BRANCH AND ADDRESS OF THE BANK, (10) ADDRESS OF THE REGISTERED OFFICE, ALL BRANCH OFFICE S, LIAISON OFFICES, GODOWN AND WAREHOUSES, ETC., (11) DEETAILS OF ALL IMMOVABLE PROPERTIES HELD BY YOU WI TH COMPLETE POSTAL ADDRESS, (12) LIST OF SUNDRY DEBTORS AND CREDITORS WITH NAMES, ADDRESSES AND P.A. NOS., (13) DETAILS OF EXEMPTED INCOME, IF ANY AND EXPENSES INC URRED IN RELATION TO THE SAME. PLEASE CONFIRM WHETHER RUL E 8D HAS BEEN APPLIED AND IF SO, COPY OF COMPUTATION UND ER RULE 8D. IT SHOWS THAT EXCEPT FOR THE NATURE OF BUSINESS, TH ERE WAS NO QUESTION REGARDING THE TYPE OF BUSINESS INCOME RETURNED BY T HE ASSESSEE. REPLY GIVEN BY THE ASSESSEE WITH REGARD TO THE NATURE OF ACTIVITY, READS AS UNDER :- CD EQUISEARCH PRIVATE LIMITED HAS ITS REGISTERED OFFICE AT 37, SHAKESPEARE SARANI, KOLKATA-700 017. THE COMPANY IS A TRADING AND CLEARING MEMBER OF NATIONAL STOCK EXCHANGE (NSE) AND BOMBAY STOCK EXCHANGE (BSE). IT IS ALSO A DEPOSITORY PARTICIPANT WITH CENTRAL DEPOSITORY SERVICES INDIA LIMITED (CDS L). IT ALSO CARRIED ON TRADING IN SHARES, UNITS AND DERIVATES. DURING THE FINANCIAL YEAR 2006-07 THE COMPANY HAS EARNED REVENUE UNDER THE HEADS INCOME FROM BUSINESS AND INCOME FROM OTHER SOURCES. PURSUANT TO THE DIRECTION OF BENCH, ASSESSEE HAS FU RNISHED A HARD COPY OF THE INCOME-TAX RETURN FILED BY IT. PART B-T1 OF THE RETURN WHICH GIVES THE COMPUTATION OF TOTAL INCOME, IN SO FAR AS HEAD PRO FITS AND GAINS FROM BUSINESS OR PROFESSION IS CONCERNED, READS UNDER:- 2. PROFITS AND GAINS FROM BUSINESS OR PROFESSION (I) PROFIT AND GAINS FROM BUSINESS OTHER THAN SPECULATIVE BUSINESS (A37 OF SCHEDULE-BP)............................... ...............13,950,502 (II) PROFIT AND GAINS FROM SPECULATIVE BUSINESS I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 11 (B41 OF SCHEDULE-BP)......................... ....................NIL (III) TOTAL (2I + 2II) ________________13,950,502 12. THUS IT IS CLEAR THAT ASSESSEE ITSELF HAD SHOWN THE WHOLE OF ITS BUSINESS INCOME AS NON-SPECULATIVE IN NATURE. NO PA RT OF THE INCOME WAS CONSIDERED BY THE ASSESSEE AS ARISING OUT OF ANY SP ECULATIVE BUSINESS. ASSESSING OFFICER HAD AT NO POINT OF TIME GONE THRO UGH THE NATURE OF BUSINESS OF THE ASSESSEE SO AS TO ASCERTAIN WHETHER EXPLANATION TO SECTION 73 STOOD ATTRACTED. AT THIS JUNCTURE IT IS NECESSAR Y TO HAVE A LOOK AT THE BREAK-UP OF INCOME CREDITED BY THE ASSESSEE IN ITS PROFIT & LOSS A/C. THIS IS REPRODUCED HEREUNDER:- 1. INCOME IN PROPRIETARY SHARE TRADING ( - )RS.2,09,02,062 2. INCOME IN PROPRIETARY TRADING OF UNITS ( - )RS.4,28,35,765 3. INCOME IN PROPRIETARY DERIVATIVE TRADING RS.4,58,12,554 4. STOCK BROKING INCOME RS.5,50,13,773 5. DEPOSITORY CHARGES FOR NSL RS. 29,61,098 6. KEYMAN INSURANCE POLICY PROCEEDS RS.1,79,00,000 7. INTEREST ON MARGIN DEPOSITS RS. 75,80,632 8. DIVIDEND RS.4,33,58,423 9. OTHER INTEREST RS. 18,908 10. MISCELLANEOUS INCOME RS. 15,50,644 IT CAN BE SEEN FROM THE ABOVE THAT ASSESSEE HAD SHA RE TRADING LOSS OF RS.2,09,02,062/- AND LOSS IN TRADING OF UNITS RS.4, 28,35,765/-. WHETHER ANY OF THESE TWO LOSSES FELL WITHIN THE REALM OF SP ECULATION LOSS AND IF SO, WHETHER IT WAS POSSIBLE TO SET AT OFF AGAINST OTHER ITEMS OF BUSINESS INCOME, WAS NEVER VERIFIED BY THE ASSESSING OFFICER . ASSESSEE HAVING CLAIMED PROFITS IN ITS TOTALITY AS NON-SPECULATIVE IN NATURE, ASSESSING OFFICER HAD NO INKLING AT ALL THAT A SET OFF OF SPE CULATIVE LOSS WITH OTHER SPECULATIVE INCOME WAS DONE BY ASSESSEE. NON-APPLIC ATION OF MIND BY THE ASSESSING OFFICER IS THUS PREGNANT. WHEN PROPER ENQ UIRIES THAT ARE I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 12 REQUIRED UNDER LAW HAVE NOT BEEN CARRIED OUT, IT IS DEFINITELY AN ERROR. IN THE SITUATION THAT THE ASSESSING OFFICER WAS, ANY P RUDENT MAN WOULD HAVE BEEN PRODDED TO MAKE ENQUIRIES, ESPECIALLY AFTER SE EING THE NATURE OF INCOME RETURNED BY THE ASSESSEE. BUT THIS WAS NOT D ONE BY THE ASSESSING OFFICER EITHER DUE TO IGNORANCE OR DUE TO OVERSIGHT . BE THAT AS IT MAY, ERROR IN THE ASSESSMENT ORDER, IN THE NATURE OF LAC K OF ENQUIRY, IS WRIT LARGE. 13. NO DOUBT, AS SUBMITTED BY THE LD. A.R. FOR APPL ICATION OF SECTION 263 OF THE ACT, NOT ONLY THERE HAS TO BE AN ERROR BUT S UCH ERROR NEEDS TO BE PREJUDICIAL TO THE INTEREST OF REVENUE. AS PER THE LD. AR THERE WAS NO PREJUDICE CAUSED TO THE REVENUE. THERE INDEED IS MU CH STRENGTH IN HIS ARGUMENT THAT DERIVATIVE TRADING, THOUGH IT FELL OU T OF THE SCOPE OF SPECULATIVE TRANSACTION BY VIRTUE OF SECTION 43(5) OF THE ACT WAS STILL GOOD ENOUGH TO BE CONSIDERED AS A SPECULATIVE LOSS FOR APPLYING EXPLANATION TO SECTION 73 OF THE ACT. THERE CAN BE NO DOUBT WHATSOEVER THAT TRADING IN UNITS DID NOT RESULT IN ANY SPECULA TION LOSS, BY VIRTUE OF DECISION OF THE HONBLE APEX COURT IN THE CASE OF A POLLO TYRES LTD. (SUPRA). IN THE CASE OF GUINESS SECURITIES LTD. (SU PRA) COORDINATE BENCH OF THIS TRIBUNAL RELYING ON THE CASE OF BHARTIA STOCK HOLDING PVT. LTD. VS.- ITO [ITA NO. 2058/KOL/2006, ORDER DATED 25.05.2007) HELD THAT SECTION 43(5) WOULD NOT IN ANY WAY BE AN IMPEDIMENT WHILE C ONSIDERING APPLICATION OF EXPLANATION TO SECTION 73 OF THE ACT , WITH REGARD TO LOSS ARISING OUT OF SPECULATIVE BUSINESS. HOWEVER, AS AL READY POINTED OUT BY US, NOTHING WAS PLACED BY THE ASSESSEE BEFORE THE A SSESSING OFFICER TO SHOW THAT LOSS ARISING IN SHARE TRADING AND PROFIT ARISING IN DERIVATIVE TRADING WERE BOTH PART OF AN INTEGRATED BUSINESS OF PURCHASE AND SALE OF SHARES. HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS.- DLF COMMERCIAL DEVELOPERS LTD. (ITA NO. 94/DEL./2013 ORDER DATED 1 1.07.2013, COPY OF WHICH HAS BEEN PLACED AT PAGES 219 TO 231 OF THE PA PER BOOK HAS CLEARLY HELD THAT LOSS ARISING OUT OF DERIVATIVE TRADING, D ESPITE DEFINITION OF A DERIVATIVE UNDER SECTION 43(5) OF THE ACT, CAME WIT HIN THE PURVIEW OF I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 13 EXPLANATION TO SECTION 73. IT WAS ALSO HELD BY THEI R LORDSHIPS THAT DERIVATIVES WHEN EXCLUDED FROM THE DEFINITION OF SP ECULATIVE TRANSACTIONS IN COMPUTATION OF BUSINESS INCOME, SUCH EXCLUSION W AS LIMITED TO THE PURPOSE OF SUCH COMPUTATION AND NOT FOR APPLICATION OF SECTION 73 OF THE ACT. THIS DECISION OF HONBLE DELHI HIGH COURT WAS NEITHER AVAILABLE WITH THE ASSESSING OFFICER NOR WITH THE CIT, AND AS POIN TED OUT BY US, NO EFFORT WHATSOEVER WAS MADE BY THE ASSESSING OFFICER TO VER IFY THE INTEGRAL NATURE OF ASESSEES BUSINESS. 14. ARGUMENT OF LD. AR THAT ALL ACTIVITIES OF THE A SSESSEE HAD TO BE CONSIDERED AS INTEGRAL TO ITS SHARE TRADING, THOUGH AT FIRST BLUSH APPEAR ATTRACTIVE, BUT IS NOT SO. TREATMENT OF DIFFERENT C LASSES OF INCOME FALLING WITHIN THE SAME HEAD, AS SPECULATIVE OR NON-SPECULA TIVE HAS WIDE RAMIFICATION. IT HAS GOT A SPILL OVER EFFECT TO OTH ER YEARS AS WELL. NO DOUBT IN THE CASE OF GUINESS SECURITIES LTD. THE COORDINA TE BENCH OF THIS TRIBUNAL HAD HELD THAT BROKERAGE INCOME AND INTERES T ON MARGIN MONEY, WERE TO BE CONSIDERED AS INTEGRAL PART OF THE SHARE TRANSACTIONS BUSINESS, WHICH CAME WITHIN THE PURVIEW OF EXPLANATION TO SEC TION 73 OF THE ACT. HOWEVER, WHETHER ASSESSEE WAS DOING AN INTEGRATED B USINESS GIVING RISE TO DIFFERENT CLASSES OF INCOME WAS NEVER VERIFIED B Y THE ASSESSING OFFICER. ARGUMENT OF THE LD. AR, THAT PREJUDICE IN THE RESTR ICTIVE SENSE OF REVENUE LOSS TO THE DEPARTMENT, HAS NOT BEEN CAUSED, MIGHT BE TRUE, IF DERIVATIVE TRADING IS CONSIDERED AS SPECULATIVE BUSINESS. ONCE INCOME FROM SPECULATIVE TRADING WAS AVAILABLE FOR A SET OFF THE N NOTHING WHATSOEVER OF THE SHARE TRADING LOSS WOULD BE LEFT. EVEN IF WHOLE OF THE BUSINESS IS CONSIDERED TO BE FALLING WITHIN THE PURVIEW OF SECT ION 73, STILL TOTAL INCOME WAS POSITIVE, AND THERE COULD BE NO TAX LOSS . IN OUR OPINION IT IS NOT POSSIBLE TO ACCEPT THIS LINE OF ARGUMENT OF THE LD. AR THAT ONLY IF THERE WAS A REVENUE LOSS, AN ERROR COULD BE CONSIDERED PR EJUDICIAL TO THE INTEREST OF REVENUE. TREATMENT OF SPECULATIVE BUSIN ESS INCOME AS NORMAL BUSINESS INCOME AND/OR NORMAL INCOME AS SPECULATIVE INCOME, GOES TO ROOT OF ADMINISTRATION OF TAX LAWS. NON-ADHERENCE T O THE PROVISIONS OF THE I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 14 STATUTE DO RENDER THE ORDER PREJUDICIAL TO THE INTE RESTS OF THE REVENUE. APPLICABILITY OF EXPLANATION TO SECTION 28 AND SECT ION 73 OF THE ACT CANNOT BE BRUSHED ASIDE EVEN WHEN SPECULATIVE TRANS ACTIONS COME WITHIN THE MEANING OF SECTION 43(5) OF THE ACT AND SPECULA TIVE BUSINESS IS DEEMED TO BE DISTINCT AND SEPARATE FROM OTHER BUSIN ESS. SECTION 73 HAS BEEN SPECIFICALLY ENACTED FOR CONTROLLING THE CLAIM S OF LOSS CARRIED FORWARD FROM SUCH BUSINESS. ASSESSEE MIGHT NOT BE H AVING A LOSS IN THE IMPUGNED ASSESSMENT YEAR, BUT IF THE NET RESULT WAS A LOSS, THE TREATMENT OF THAT LOSS, ONCE IT AROSE OUT OF SPECULATIVE TRAN SACTIONS WOULD BE ENTIRELY DIFFERENT FROM THAT OF A NORMAL BUSINESS L OSS ASSESSMENT DONE FOR THE IMPUGNED ASSESSMENT YEAR IF CONFIRMED, BY A CCEPTING THE CONTENTIONS OF THE ASSESSEE WOULD HAVE AN OVERFLOWI NG EFFECT ON THE SUCCEEDING ASSESSMENT YEARS, WHERE THE TRADING RESU LTS FROM THE SAME BUSINESS AND DIFFERENT CLASSES OF ACTIVITIES COULD BE DIFFERENT. ASSESSING OFFICER WILL THEN BE TIED UP BY HIS OWN ORDER FOR T HE IMPUGNED ASSESSMENT YEAR. IF WE LOOK FROM THIS ANGLE, IT IS CLEAR THAT THE TREATMENT OF INCOME AS CLAIMED BY THE ASSESSEE, IF ACCEPTED WOULD DEFINITE LY BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. PREJUDICIAL TO THE INTERES T OF THE REVENUE CANNOT BE INTERPRETED IN A RESTRICTED MANNER BUT HAS TO BE GIVEN IN A WIDE MEANING. IN ALL THE DECISIONS RELIED ON BY THE LD. A.R. INCLUDING THE DECISIONS OF HONBLE APEX COURT IN THE CASE OF MALA BAR INDUSTRIES CO. (SUPRA), AND GREENWORLD CORPORATION (SUPRA) AND THA T OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SUBHAS PRO JECTS & MARKETING LTD. (SUPRA) THE VALIDITY FOR REVISIONARY PROCEEDINGS WE RE QUESTIONED, WHERE THE ORIGINAL ASSESSMENT PROCEEDINGS WERE COMPLETED AFTER MAKING DUE ENQUIRIES AND THERE WAS APPLICATION OF MIND BY THE ASSESSING OFFICER ON THE ISSUES RAISED IN THE REVISIONARY PROCEEDINGS. A S AGAINST THIS, HERE THE ASSESSING OFFICER HAD NOT APPLIED HIS MIND AT ALL D URING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS. ASSESSEE ITSELF HA D FAILED TO BIFURCATE ITS CLASSES OF INCOME APPROPRIATELY, THOUGH SOME OF IT PERTAINED TO SPECULATIVE BUSINESS. IN TAKING THIS VIEW WE ARE RO BORANTED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT VS.- I.T.A. NO.: 559/KOL./2012 ASSESSMENT YEAR : 2007-08 PAGE 1 TO 15 15 MULCHAND BHAGI (1992) 108 CTR 206 AS WELL AS CIT V S.- HASTINGS PROPORTION 253 ITR 124. WE ARE THEREFORE OF THE OPI NION THAT THE ORDER OF ASSESSING OFFICER WAS ERRONEOUS IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF THE REVENUE. WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LD. CIT. 15. IN THE RESULT, APPEAL FILED BY ASSESSEE STANDS DISMISSED. 16. SINCE THE APPEAL HAS BEEN DISPOSED OF, THE STAY PETITION HAS BECOME INFRUCTUTOUS. THEREFORE, STAY PETITION STANDS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF DECEMBER, 2013. SD/- SD/- MAHAVIR SINGH ABRAHAM P. GEORGE (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 30 TH DAY OF DECEMBER, 2013 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) THE DEPARTMENTAL REPRESENTATIVE (5) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.