ITO, ward-7(3), Kolkata, Kolkata V. M/s Kyal Developers Pvt. Ltd., Kolkata

ITA 627/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70484 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 19-04-2012
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA PRASAD SRDR
• Keywords: Business income; Scheme of amalgamation; Capital receipt
• Section: 143(3); 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI ABRAHAM.P.GEORGE, ACCOUNTANT MEMBER ITA NO. 627 / KOL / 2012 ASSESSMENT YEAR :2008-09 INCOME TAX OFFICER WARD-7(3), KOLKATA, P-7, CHOWRINGHEE SQUARE, R.NO.17, 5 TH FLOOR,KOLKATA 700 069 V/S . M/S KYAL DEVELOPERS PVT. LTD., 55/1A, VINAY COMPLEX, STRAND ROAD, POSTA, KOLKATA 700 006 [ PAN NO.AABCK 307DE ] / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI RAJENDRA PRASAD, SR-DR /BY RESPONDENT SHRI SUBASH AGARWAL, AR /DATE OF HEARING 25-11-2013 /DATE OF PRONOUNCEMENT 19-12-2013 / // / O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-VIII, KOLKATA IN APPEAL NO.157 /CIT(A)-VIII/KOL10-11 DATED 16-01-2012. THE ASSESSMENT WAS FRAMED BY ITO, WD-7(3), KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE HIS ORDER DATED 30-12-2010 FOR ASSESSMENT YEAR 2008 -09. 2. AT THE OUTSET, IT IS NOTICED THAT APPEAL IS BARR ED BY LIMITATION BY FIVE DAYS AND REVENUE HAS FILED CONDONATION PETITION SUPPORTE D BY AFFIDAVIT STATING THE REASONS. WHEN THIS CONDONATION PETITION WAS CONFRON TED TO LD. COUNSEL FOR THE ITA NO.627/KOL2012 A.Y 2008-09 ITO WD-7(3), KOL V. M/S KYAL DEVELOPERS PVT. LTD. PAGE 2 ASSESSEE, HE FAIRLY CONCEDED THAT HE HAS NO OBJECTI ON IF DELAY IS CONDONED. AS THE ASSESSEE'S COUNSEL CONCEDED THE POSITION, WE CO NDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) IN DELETING THE ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF CAPITAL RESERVE BEING TREATED AS BENEFIT ARISING OUT OF M ERGED ACCOUNTS U/S 28(IV) OF THE ACT. FOR THIS, REVENUE HAS RAISED FOLLOWING TWO GROUNDS:- 1. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T.(A)-II, KOLKATA HAS ERRED IN NOT TREATING THE CAPITAL RESERVE TO THE TUNE OF RS.49,53,138/- AS IN THE NATURE OF BENEFIT ARISING OUT OF MERGING OF ACCOUNTS OF THE AMALGAMATED COMPANIES WITH THE A MALGAMATING COMPANY (ASSESSEE) AS BUSINESS INCOME U/S. 28(IV) O F THE INCOME TAX ACT, 1961. 2. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. C..T.(A)-VIII, KOLKATA HAS ERRED IN PLACING RELIANC E ON THE CASE OF ISKRAEMECO REGENT LTD. VS CIT-I [2011] 196 TAXMAN 103 (MAD) AND CIT VS ALCHEMIC (P) LD. [1981] 130 ITR 168 (GUJ), WHICH ARE NOT RELEVANT IN THIS CASE. 4. BRIEFLY STATED FACTS ARE THAT ASSESSING OFFICER ON ANALYSED BALANCE- SHEET OF THE ASSESSEE-COMPANY AS ON 31 ST MARCH 2008 AND NOTED THAT ASSESSEE HAS EARNED NET WEALTH OF RS.49,54,153/- ON ACCOUNT OF AMALGAMATION OF THE FOLLOWING COMPANIES I.E., ASSES SEE-COMPANY VIDE THE ORDER OF HONBLE JURISDICTIONAL HIGH COURT WITH EFF ECT FROM 01-04-2007:- I. M/S. ZITHER COMMERCIAL PRIVATE LIMITED. II. M/S FLOURESCENT CONSTRUCTION PRIVATE LIMITED III. MS FLOURESCENT COMMERCE PRIVATE LIMITED. IV. MS. SHREE SIDHI VINAYAK CONSTRUCTION PRIVATE L IMITED. V. MS VICTORY DEVELOPERS PRIVATE LIMITED. VI. M/S. GAYLORD DEVELOPERS PRIVATE LIMITED VII. MS. GAYLORD ESTATES PRIVATE LIMITED VIII. MS. N.G. ESTATES PRIVATE LIMITED ITA NO.627/KOL2012 A.Y 2008-09 ITO WD-7(3), KOL V. M/S KYAL DEVELOPERS PVT. LTD. PAGE 3 IX. MS. UMAKANT PROPERTIES PRIVATE LIMITED. ACCORDING TO AO, THE NET WEALTH EARNED BY ASSESSEE FALLS UNDER THE PROVISIONS OF SECTION 28(IV) OF THE ACT BEING THE V ALUE OF BENEFIT ARISING FROM THE SCHEME OF AMALGAMATION. ACCORDINGLY, HE ADDED T HE SAME TO THE PROFIT AND LOSS ACCOUNT OF THE ASSESSEE. AGGRIEVED, ASSESS EE PREFERRED APPEAL BEFORE CIT(A), WHO CONSIDERING THE SUBMISSION OF TH E ASSESSEE THAT WHATEVER ASSETS ARE ACQUIRED ON AMALGAMATION CANNOT BE TREAT ED THE BENEFIT ARISING FROM BUSINESS AND ACCORDINGLY, HE DELETED THE SAME BY OBSERVING AS UNDER:- I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT COMPANY. THE ASSESS ING OFFICER HAS SOUGHT TO TAX THE RESERVE AND SURPLUS BROUGHT IN BY THE APPELLANT COMPANY THROUGH THE AMALGAMATION OF THE NINE COMPAN IES. THE RESERVE AND SURPLUS IS BROUGHT IN FINANCIAL TERMS HAVING MO NETARY VALUE AND NOT THROUGH ANY FIXED ASSETS. IN FACT, SECTION 28(IV) H AS NOT APPLICATION TO ANY TRANSACTIONS WHICH INVOLVES MONEY AS IT IS HELD BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF ISKRAEMECO REGENT LTD. V. COMMISSIONER OF INCOME-TAX-I [2011] 196 TAXMAN 103 (MAD.). FURTHER, IN THE CASE OF CIT V. ALCHEMIC (P) LTD. [1 981] 130 ITR 168 (GUJ), IT HAS BEEN HELD THAT UNDER SEC. 28(IV),THE QUESTION OF INCLUDING THE VALUE OF THE BENEFIT OR PERQUISITE WOULD ARISE ONLY IF THE BENEFIT OR THE PERQUISITE IS NOT IN CASH OR MONEY. IN VIEW OF THE FACTS AND THE CIRCUMSTANCES OF THE C ASE AND THE EMERGING LEGAL POSITION, IN MY OPINION, THE RESERVE AND SURP LUS BROUGHT IN BY THE APPELLANT COMPANY THROUGH THE AMALGAMATION DULY APP ROVED BY THE HONBLE HIGH COURT DOES NOT COME UNDER THE PURVIEW OF BENEFIT OR PERQUISITE TO THE APPELLANT COMPANY UNDER SEC. 28(I V) OF THE IT ACT. THEREFORE, THE ADDITION OF RS.49,53,138- MADE BY TH E ASSESSING OFFICER IS HEREBY DELETED . 5. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE ADMITTED FACTS ARE T HAT THE ASSESSEE BEING A PUBLIC LIMITED COMPANY HAS AMALGAMATED WITH THE ABO VEMENTIONED NINE COMPANIES. THE PURPOSE OF AMALGAMATION WAS TO BOLST ER THE CAPABILITY OF THE ASSESSEE TO CONDUCT BUSINESS IN DYNAMIC WAY AND MOR E TO EARN PROFITS. THE BLOCK OF ASSET RECEIVED FROM THE AMALGAMATING COMPA NIES ENHANCED THE ITA NO.627/KOL2012 A.Y 2008-09 ITO WD-7(3), KOL V. M/S KYAL DEVELOPERS PVT. LTD. PAGE 4 IMAGE AND GOODWILL OF THE ASSESSEE-COMPANY BY INCRE ASING RESERVES AND SURPLUS. WHETHER THE RESERVE AND SURPLUS OF THE AMA LGAMATED COMPANY CAN BE TREATED AS BENEFITS ACCRUING FROM BUSINESS OF TH E ASSESSEE IN TERM OF PROVISIONS OF SECTION 28(IV) OF THE ACT OR NOT? 6. NOW, WE HAVE TO GO THROUGH THE CLAUSE (IV) OF SE CTION 28 WHICH LAYS DOWN AS UNDER: SECTION 28 SETS OUT THE INCOMES WHICH ARE CHARGEABL E TO INCOME-TAX UNDER THE HEAD PROFIT AND GAINS OF BUSINESS AND PR OFESSION, AND CLAUSE (IV) THERETO REFERS TO THE VALUE OF ANY BENEFIT OR PERQUISITE, WHETHER CONVERTIBLE INTO MONEY OR NOT, ARISING FROM THE BUSINESS OR EXERCISE OF A PROFESSION . IT IS CLEAR FROM THE ABOVE PROVISION THAT BESIDES T HE PROFITS AND GAINS FROM BUSINESS AND PROFESSION CARRIED ON BY THE ASSESSEE AT ANY TIME DURING THE PREVIOUS YEAR OR ANY OTHER BENEFIT OR PERQUISITE, W HETHER CONVERTIBLE INTO MONEY OR NOT, IS ALSO CHARGEABLE TO TAX UNDER THIS HEAD OF INCOME. A PLAIN READING OF THIS PROVISION SHOWS TWO CONDITIONS PREC EDENTS FOR SUCH TAXABILITY I.E. (I) THAT THERE SHOULD BE BENEFITS OR PERQUISIT ES AND, (II) THAT SUCH BENEFITS OR PERQUISITES SHOULD ARISE FROM THE BUSINESS OR EXERC ISE OF THE PROFESSION. THE EXPRESSION ARISING FROM THE BUSINESS ESSENTIALLY IMPLIES THAT THE BENEFIT OR PERQUISITE MUST BE IN THE NATURE OF A BUSINESS RECE IPT OR REVENUE RECEIPT. NO MATTER HOW WIDE BE THE SCOPE OF SECTION 28(IV) OF T HE ACT, THE DIFFERENCE BETWEEN A CAPITAL RECEIPT AND REVENUE RECEIPT CANNO T BE OVERLOOKED. IN THE CASE OF MAHINDRA & MAHINDRA LIMITED VS. CIT (261 ITR 501), HONBLE BOMBAY HIGH COURT HAS, IN THE CONTEXT OF THIS SIGNI FICANT DISTINCTION BETWEEN REVENUE AND CAPITAL RECEIPTS, HELD THAT WAIVER OF P RINCIPAL AMOUNT IN RESPECT OF IMPORTS OF PLANT AND MACHINERY COULD, BY NO STRETCH OF LOGIC, BE TREATED AS BUSINESS INCOME , AND, THEREFORE, AS AN INCOME TAXABLE UNDER SECTI ON 28(IV) OF THE ACT. ONE MUST BEAR IN MIND THE FACT THAT SEC TION 28 OF THE ACT ONLY REFERS TO THE TERM INCOME WHICH CAN BE CHARGED TO INCOME TAX UNDER THE HEAD PROFITS AND GAINS FROM BUSINESS OR PROFESSION , AND, THEREFORE, WHEN A PARTICULAR ADVANTAGE, PERQUISITE OR RECEIPT IS NOT IN THE NATURE OF INCOME, THERE ITA NO.627/KOL2012 A.Y 2008-09 ITO WD-7(3), KOL V. M/S KYAL DEVELOPERS PVT. LTD. PAGE 5 CANNOT BE ANY OCCASION TO BRING THE SAME TO TAX UND ER SECTION 28(IV) OF THE ACT. 7. HONBLE SUPREME COURT, IN THE CASE OF PADMARAJE R KADAMBANDE VS CIT (195 ITR 877) OBSERVED THAT, WE HOLD THAT THE AMOUNTS RECEIVED BY THE ASSESSEE DURING THE FINANCIAL YEAR IN QUESTION HAVE TO BE REGARDED AS CAPITAL RECEIPTS, AND, THEREFORE, ARE NOT INCOME WITHIN MEANING OF SECTION 2(24) OF THE INCOME TAX ACT. (EMPHASIS BY UNDERLINING SUPPLIED BY US). THIS CLEARLY SHOWS, AS IS THE SETTLED LAW THAT A CAPITAL RECEIPT, IN PRINCIPLE, IS OUTSIDE THE SCOPE OF INCOME CHARGEABLE TO TAX. O F COURSE, THERE ARE SPECIFIC PROVISIONS UNDER THE INCOME TAX ACT WHICH PROVIDE H AT CERTAIN CAPITAL RECEIPTS CAN ALSO BE CONSIDERED AS INCOME, SUCH AS UNDER SEC TION 2 (24)(VI) OF THE ACT WHICH COVERS ANY CAPITAL GAINS CHARGEABLE UNDER SECTION 45 , BUT RIGHT NOW WE ARE CONFINED TO NORMAL CONNOTATIONS OF THE EXPRE SSION INCOME . HOWSOEVER LIBERAL OR NARROW BE THE INTERPRETATION O F EXPRESSION INCOME , IT CANNOT ALTER CHARACTER OF A RECEIPT, I.E. CONVERT A CAPITAL RECEIPT INTO REVENUE RECEIPT OR VICE VERSA. THE CRUCIAL DISTINCTION BETW EEN CAPITAL AND REVENUE CANNOT BE BLURRED OR NULLIFIED BY EVEN THE MOST LIB ERAL INTERPRETATION OF EXPRESSION INCOME . IT IS ALSO IMPORTANT TO BEAR IN MIND THAT, AS HE LD BY HONBLE SUPREME COURT IN THE CASE OF DR K GEORGE THOMAS VS CIT (156 ITR 412) , THE BURDEN IS ON THE REVENUE TO ESTABLISH THAT THE RECEIPT IS OF A REVENUE NATURE THOUGH ONCE A RECEIPT IS FOUND TO BE OF REVENUE CHARACTER, WHETHER IT COMES UNDER EXEMPTION OR NOT, IT IS FOR THE REVENUE TO ESTABLISH . IT IS THUS CLEAR THAT CAPITAL RECEIPTS ARE INHERENTLY OUTSIDE THE SCOPE OF AN INCOME WHICH CAN BE TAXED UNDER SECTION 28(IV), AND HONBLE BOMB AY HIGH COURT, IN THE CASE OF MAHINDRA & MAHINDRA (SUPRA) ALSO HOLDS SO. AS TO WHAT CONSTITUTES CAPITAL RECEIPT, WE FIND GUIDANCE FROM HONBLE MADR AS HIGH COURTS JUDGMENT IN THE CASE OF CIT VS SESHASAYEE BROTHERS PVT LTD. (222 ITR 818) WHEREIN THEIR LORDSHIPS, AFTER ELABORATELY SURVEYING THE LE GAL PRECEDENTS ON THIS ISSUE, CONCLUDED THAT, THUS, A COMBINED READING OF THE ABOVE SAID JUDICIAL PRONOUNCEMENTS WOULD GO TO SHOW THAT WHEN A RECEIPT IS REFERABLE TO ITA NO.627/KOL2012 A.Y 2008-09 ITO WD-7(3), KOL V. M/S KYAL DEVELOPERS PVT. LTD. PAGE 6 FIXED CAPITAL, IT IS NOT TAXABLE,, AND IT IS TAXABL E AS A REVENUE RECEIPT WHEN IT IS REFERABLE TO CIRCULATING CAPITAL OR STOCK IN TRADE . 8. TO SUM UP, UNLESS IT IS A REVENUE RECEIPT, IT CA NNOT BE IN THE NATURE OF INCOME [EXCEPT IN A SITUATIONS IN WHICH CAPITAL REC EIPTS ARE SPECIFICALLY INCLUDED IN THE DEFINITION OF INCOME SUCH AS UNDER SECTION 2(24)(VI)], AND UNLESS IT IS IN NATURE OF INCOME, IT CANNOT BE CONS IDERED FOR TAXATION UNDER SECTION 28(IV). THE REFERENCE TO BENEFIT WHICH CAN BE BROUGHT TO TAX UNDER SECTION 28(IV) FOR BENEFITS ARISING FROM THE BUSINESS ALSO INDICATES THAT SUCH BENEFIT MUST BE A BUSINESS OR REVENUE RECEIPT IN NA TURE. TO FIND OUT WHETHER OR NOT THE BENEFIT, EVEN IF THAT BE SO, IS ON CAPITAL ACCOUNT OR REVENUE ACCOUNT, IT IS NECESSARY TO UNDERSTAND THE NATURE OF TRANSACTIO N WHICH HAS RESULTED IN, WHAT THE ASSESSING OFFICER, PERCEIVES AS BENEFIT TO THE ASSESSEE '. THIS WAS A CASE OF AMALGAMATION IN THE NATURE OF MERGER, AND A N AMALGAMATION IN THE NATURE OF MERGER, IN CORPORATE PARLANCE, IS THE PRO CESS OF BLENDING OF TWO OR MORE COMPANIES INTO ONE OF THESE BLENDING COMPANIES , THE SHAREHOLDERS OF EACH BLENDING COMPANY BECOMING SUBSTANTIALLY THE SH AREHOLDER OF THE COMPANY WHICH HOLDS THE BLENDED UNDERTAKING. THE EX PRESSION AMALGAMATING COMPANY IS USED FOR THE BLENDING COMPANY WHICH LOSES ITS EXISTENCE INTO THE OTHER COMPANY AND THE EXPRESSION AMALGAMATED COMPANY IS USED FOR BLENDED UNDERTAKING, WHICH HOLDS EXISTE NCE OF THOSE TWO OR MORE COMPANIES. IN ESSENCE THUS, THE WHOLE EXERCISE OF A MALGAMATION IN THE NATURE OF MERGER IS AN EXERCISE IN THAT OF POOLING OF RESOURCES, AS ALSO POOLING OF ASSETS, INTO THE COMPANY IN WHICH TWO OR MORE CO MPANIES ARE BLENDED. IT IS A PROCESS OF CORPORATE RECONSTRUCTION AND IT IS ONL Y WITH THE APPROVAL OF HONBLE JURISDICTIONAL HIGH COURT THAT THIS EXERCIS E IS CARRIED OUT. IN THE PRESENT CASE ALSO, AS STATING PARAGRAPH 4 OF PART I OF SCHE DULE A (I.E. SCHEME OF AMALGAMATION) TO HONBLE CALCUTTA HIGH COURTS ORDE R DATED 9 TH APRIL 2008, FOR THE PURPOSE OF BETTER, EFFICIENT AND ECONOMICAL MANAGEMENT, CONTROL AND RUNNING OF THE BUSINESS AND TO WITHSTAND THE RE CESSIONARY TEND IN THE ECONOMY OF THE BUSINESS UNDERTAKING CONCERNED A ND FOR ITA NO.627/KOL2012 A.Y 2008-09 ITO WD-7(3), KOL V. M/S KYAL DEVELOPERS PVT. LTD. PAGE 7 ADMINISTRATIVE CONVENIENCE AND TO OBTAIN ADVANTAGE OF ECONOMIES OF LARGE SCALE, THE PRESENT SCHEME IS PROPOSED TO AMAL GAMATE THE TRANSFEROR COMPANY (I.E VVPL) WITH THE TRANSFEREE COMPANY (I.E. THE ASSESSEE). AS A RESULT OF AMALGAMATION, THE ASSESSE E, BEING THE TRANSFEREE COMPANY, WILL INCREASE ITS ASSETS AND LIABILITIES, AND, EVEN IF THERE BE AN BENEFIT IN THE PROCESS, SUCH A BENEFIT CAN ONLY BE IN THE CAPITAL FIELD BECAUSE IT IS RELATABLE TO THE NON TRADING ASSETS AND CAPITAL. WHAT IT AFFECTS IS THE CAPITAL STRUCTURE OF THE ASSESSEE COMPANY AND THE MANNER IN WHICH BUSINESS IS CONSOLIDATED. AS THE ASSESSING OFFICER HIMSELF OBSE RVES, .. THIS EXERCISE OF AMALGAMATION IS ALSO AIMED AT BOLSTERING THE CAPABI LITY OF THE ASSESSEE TO CONDUCT BUSINESS MORE DYNAMICALLY AND EARN MORE PRO FIT. SO, THE ENHANCEMENT OF ITS CAPITAL RESERVE, AS A RESULT OF THIS AMALGAMATION CAN ONLY BE CONSTRUED AS A BENEFIT ACCRUED TO THE ASSESSEE , BUT THEN IT IS NOT EVEN THE CASE OF THE ASSESSING OFFICER THAT THE BENEFIT IS IN THE REVENUE FIELD, AND UNLESS THE ASSESSING OFFICER IS TO DISCHARGE THE ON US OF DEMONSTRATING THAT THE BENEFIT IS IN THE REVENUE FIELD, THERE CANNOT B E ANY OCCASION TO INVOKE SECTION 28(IV). APPLYING THE TEST LAID DOWN BY HON BLE MADRAS HIGH COURT, IN THE CASE OF SESHASAYEE BROTHERS (SUPRA), ALSO, WE F IND THAT THE BENEFIT IS REFERABLE TO THE CAPITAL, AND IS THUS NOT OF AN INC OME NATURE. EVEN IF, AS THE ASSESSING OFFICER OBSERVES, IS BENEFITED IN A MYRIAD WAYS BY WAY OF AMALGAMATION , IT DOES NOT LEAD TO THE CONCLUSION THAT THE BENEF IT IS IN REVENUE FIELD WHICH ALONE CAN BE TREATED AS INCOME AND THUS BE CONSIDERED FOR TAXABILITY UNDER SECTION 28(IV) OF THE ACT. THE ONU S IS ON THE ASSESSING OFFICER TO DEMONSTRATE THAT THE RECEIPT IS OF THE REVENUE N ATURE. 9. IN THE PRESENT CASE THERE IS O MATERIAL WHATSOEV ER BEFORE US TO INDICATE THAT THE BENEFIT, EVEN IF ACCRUING TO THE ASSESSEE, ON ACCOUNT OF AMALGAMATION BY WAY OF MERGER AS NOT IN REVENUE FIELD, AND NOT O F AN INCOME NATURE. ACCORDINGLY, THERE WAS NO OCCASION TO INVOKE SECTIO N 28(IV) OF THE ACT. ACCORDING TO US, CIT(A) WAS QUITE JUSTIFIED IN HIS OBSERVATIONS THAT THE AMALGAMATION IS NOT AN ADVENTURE IN THE NATURE OF T RADE AND THAT THIS ITA NO.627/KOL2012 A.Y 2008-09 ITO WD-7(3), KOL V. M/S KYAL DEVELOPERS PVT. LTD. PAGE 8 TRANSACTION IS CLEARLY A CAPITAL ACCOUNT TRANSACTIO N AND HE WAS JUSTIFIED IN DELETING THE ADDITION. WE UPHOLD HIS ORDER AND DISM ISS THE APPEAL OF REVENUE. 10. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 TH DEC., 2013 SD/- SD/- (ABRAHAM.P. GEORGE) (MAHAVIR S INGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP !' #- 19 /1 2 /2013 ) **+ **+ **+ **+ ,+ ,+ ,+ ,+ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '.'*/ 0 / CONCERNED CIT 4. 0- / CIT (A) 5. +34 ***/, */ , / DR, ITAT, KOLKATA 6. 478 9: / GUARD FILE. BY ORDER/ , ;/< '= */ , )