Yo Foodies, Kolkata V. ACIT, CIR-26, KOLKATA, Kolkata

ITA 838/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4127 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 17-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 27-04-2016
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: SANJAY BHATTACHARYA FCA LD
• Keywords: Depreciation; Opportunity of being heard; Bad and doubtful debts
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA [BEFORE SHRI M. BALAGANESH, AM & SHRI S.S.VISWANET HRA RAVI, JM] I.T.A NO.838/KOL/2016 ASSESSMENT YEAR: 2010-11 YOFOODIES (PAN: AAAFY5573A) VS. ASSISTANT COMMISSI ONER OF INCOME-TAX, CIRCLE-26, KOLKATA. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 17.11.2016 DATE OF PRONOUNCEMENT: 02.12.2016 FOR THE APPELLANT: SHRI SANJAY BHATTACHARYA, FCA, LD. AR FOR THE RESPONDENT: MD. GHAYAS UDDIN, JCIT ORDER PER SHRI M. BALAGANESH, AM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-7, KOLKATA VIDE APPEAL NO. 445/CIT(A)-7/CIR-26/14-15 DATED 02.12.2015. ASSESS MENT WAS FRAMED BY ACIT, CIRCLE-53, KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2010-11 VIDE HIS ORDER DATED 30.03. 2013. 2. THE GROUND NOS. 1, 2 & 4 RAISED BY THE ASSESSEE ARE GENERAL IN NATURE AND DOES NOT REQUIRE ANY ADJUDICATION. 3. THE GROUND 3(F) RAISED BY THE ASSESSEE WAS STAT ED TO BE NOT PRESSED BY THE LD AR AT THE TIME OF HEARING FOR WHICH NECESSARY ENDORSEMENT WAS ALSO MADE BY HIM TO THAT EFFECT. ACCORDINGLY, THE GROUND 3 (F) RAISED BY THE ASSESSE E IS DISMISSED AS NOT PRESSED. 4. THE FIRST ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD CITA IS JUSTIFIED IN UPHOLDING THE DISALLOWANCE MADE U/S 40(A)(IA) OF TH E ACT IN THE SUM OF RS. 82,650/- TOWARDS ANNUAL MAINTENANCE CHARGES IN THE FACTS AND CIRCUMS TANCES OF THE CASE. 4.1. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSE SSEE IS RUNNING A RESTAURANT IN MANI SQUARE MALL. THE LD AO OBSERVED THAT THE ASSESSEE PAID A SUM OF RS. 61,650/- TO HCL INFOSYSTEMS LTD TOWARDS SUPPLY OF HCL MACHINES AND THERMAL PRIN TER AND A SUM OF RS. 21,000/- PAID TO 2 ITA NO.838/KOL/2016 YO FOODIES AY 2010-11 IDS SOFTWARES PVT LTD TOWARDS PRODUCT SERVICE CONTR ACT CHARGES FOR FORTUNE R & B SOFTWARE WITHOUT DEDUCTION OF TAX AT SOURCE U/S 194 C OF THE ACT AND ACCORDINGLY INVOKED THE DISALLOWANCE U/S 40(A)(IA) OF THE ACT, WHICH WA S ALSO CONFIRMED BY THE LD CITA IN FIRST APPEAL. THE LD AR PRODUCED THE BILLS THAT WERE PRO DUCED BEFORE THE LOWER AUTHORITIES AND PRAYED THAT IN RESPECT OF PAYMENT OF RS. 61,650/- TO HCL INFOSYSTEMS LTD, THE SAME REPRESENTS ONLY PURCHASE OF MACHINES AND PRINTER FO R WHICH PROVISIONS OF SECTION 194C OF THE ACT COULD NOT BE INVOKED AND CONSEQUENTIAL DISA LLOWANCE U/S 40(A)(IA) OF THE ACT COULD NOT BE MADE THEREON. HOWEVER, HE FAIRLY CONCEDED T HAT THE DISALLOWANCE U/S 40(A)(IA) OF THE ACT WAS RIGHTLY MADE IN RESPECT OF AMC CHARGES OF R S. 21,000/- PAID TO IDS SOFTWARES PVT LTD. IN RESPONSE TO THIS, THE LD DR VEHEMENTLY RE LIED ON THE ORDERS OF THE LOWER AUTHORITIES. 4.2. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND FROM THE PERUSAL OF THE RELEVANT BILLS ENCLOSED IN PAGES 1 & 2 OF THE PAPER BOOK, THE ARGU MENT OF THE LD AR DESERVE TO BE ACCEPTED AND WE DIRECT THE LD AO TO DELETE THE DISA LLOWANCE U/S 40(A)(IA) OF THE ACT TO THE EXTENT OF RS. 61,650/- ON THIS ACCOUNT. ACCORDINGL Y, THE GROUND NO. 3(A) RAISED BY THE ASSESSEE IS PARTLY ALLOWED. 5. THE NEXT ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD CITA IS JUSTIFIED IN UPHOLDING THE DISALLOWANCE OF RS. 9,77,358/- MADE O N ACCOUNT OF COMMISSION AND COMMON AREA MAINTENANCE CHARGES IN THE FACTS AND CIRCUMSTA NCES OF THE CASE. 5.1. THE BRIEF FACTS OF THIS ISSUE IS THAT THE LD AO OBSERVED THAT THE ASSESSEE PAID A SUM OF RS. 6,61,829/- TO MANI SQUARE LTD WITHOUT DEDUCTION OF TAX AT SOURCE UNDER CHAPTER XVIIB OF THE ACT. SIMILARLY AN AMOUNT OF RS. 3,15,529/- WAS PAID TO MANI SQUARE LTD AS COMMON AREA MAINTENANCE CHARGES WITHOUT DEDUCTION OF TAX A T SOURCE. THE ASSESSEE JUSTIFIED THE NON DEDUCTION OF TAX AT SOURCE IN ITS REPLY BY STATING THAT A PRACTICE FOLLOWED IN ALL MALLS IS THAT THERE IS A COMMON CASH COUNTER IN THE FOOD COURT OF MANI SQUARE WHERE THE CUSTOMER PAYS CASH AND COLLECTS A DEBIT CARD WHICH CUSTOMERS USE TO SPEND AT ANY OF THE VARIOUS FOOD STALLS. SO THE ENTIRE CASH COLLECTION IS HANDLED BY MANI SQ UARE ONLY. AT THE END OF EVERY FORTNIGHT, MANI SQUARE MALL MANAGEMENT WOULD DO AN ACCOUNT OF THE SALES AND THE CASH COLLECTIONS. 3 ITA NO.838/KOL/2016 YO FOODIES AY 2010-11 THEY DEDUCT THEIR SHARE OF THE REVENUE AND PAY THE REMAINING SALE PROCEEDS TO THE ASSESSEE. THIS REPLY NOT SATISFIED WITH THIS REPLY DISALLOWED THE TOTAL PAYMENT OF RS. 9,77,358/- U/S 40(A)(IA) OF THE ACT, WHICH WAS ALSO CONFIRMED BY T HE LD CITA IN FIRST APPEAL. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 5.2. THE LD AR ARGUED THAT AS PER THE JOINT VENTUR E AGREEMENT ENTERED INTO WITH MANI SQUARE FOOD COURT AT MANI SQUARE MALL DATED 15.7.20 08, VIDE CLAUSE 10(I) AND 10(II) OF THE AGREEMENT, THE ASSESSEE HAS TO PAY MANI SQUARE LTD A PERCENTAGE OF THE GROSS SALE PROCEEDS AND THE BASIS OF THE AMOUNT TO BE PAID IS ALSO STIP ULATED THEREON AT FIXED PERCENTAGE BASED ON THE TURNOVER ACHIEVED THEREON. HE DREW THE ATTENT ION OF THE BENCH TO CLAUSE 10(I) , CLAUSE 11.1 (REVENUE SHARING BETWEEN ASSESSEE AND MANI SQU ARE AT 75:25 RATIO RESPECTIVELY) , CLAUSE 12 TOWARDS PAYMENT OF FIXED COMMON AREA MAI NTENANCE CHARGES OF RS. 23,295/- PLUS SERVICE TAX ON ACCOUNT OF SERVICING, MANAGING AND MAINTAINING THE COMMON AREA INSTALLATION AND FACILITIES IN THE MALL INCLUDING E LECTRICITY, REPAIRS, REPLACEMENT, REFURBISHMENT, PAINTING, MAINTENANCE, CLEANING AND SECURITY OF COMMON INDOOR AND OUTDOOR SITTING AREA ETC AND ALSO THE FORECAST COSTS ON ACC OUNT OF ADVERTISEMENT , PROMOTION AND MARKETING OF THE FOOD COURT , CLAUSE 12.1 CONTAININ G MINIMUM GUARANTEE AMOUNT OF RS. 80,000/- PER MONTH PAYABLE BY THE ASSESSEE TO MANI SQUARE LTD (MSL) WITH AN OPTION GIVEN TO THE VENDOR TO RETAIN THE PORTION OF THE SALES OR MINIMUM GUARANTEE WHICHEVER IS HIGHER. HE ALSO ARGUED THAT THE ASSESSEE SCOPE OF DELIVERAB LES AS PER THE JV AGREEMENT IS AS FOLLOWS:- A. ALL INGREDIENTS AND RAW MATERIAL FOR PREPARAT ION OF FOOD. B. NECESSARY WELL COOKED FOOD WITH GOOD WRAP AND HYGIENE. C. COOKING AREA EQUIPMENT BUILT IN FOOD GRADE MAT ERIAL/QUALITY. D. NECESSARY TILING & PLUMBING IN THE COOKING ARE A. E. CLEANLINESS OF THE ATTIRE PROVIDED BY MSL FOR T HE PERSONS/REPRESENTATIVES FACING THE CUSTOMER. F. EQUIPMENT FOR COUNTER. G. STAFF AND EMPLOYEES FOR FOOD PREPARATION AND IN LINE STAFF. H. ANY OTHER DELIVERABLE NOT EXPRESSLY CONSTITUTIN G MSLS DELIVERABLES. 4 ITA NO.838/KOL/2016 YO FOODIES AY 2010-11 HE ALSO ARGUED THAT AS PER CLAUSE 7 OF THE AGREEMEN T, THE PRICE LIST OF THE FOOD PRODUCTS VENDED BY THE ASSESSEE WOULD BE PREPARED IN CONSULT ATION WITH MANI SQUARE LTD. APART FROM THIS, AS PER CLAUSE 8 OF THE AGREEMENT, MSL WI LL PROMOTE, ADVERTISE TO MAKE POPULAR AS A DESTINATION THE FOOD COURT AND FOR THIS PURPOS E PUT IN THE NECESSARY COSTS AND COMPETENCIES REQUIRED IN THIS BEHALF. HE ARGUED APART FROM ALL THESE PAYMENTS, THE ASSESSEE HAD TO PAY RS 38.67 LAKHS PER ANNUM AS COM MON AREA MAINTENANCE CHARGES AND RS. 60 LAKHS PER ANNUM AS RENT TO CARRY OUT THE FOOD BU SINESS IN THE SAID MALL. HE ULTIMATELY ARGUED THAT MSL IS ONLY A BUSINESS PARTNER OF THE A SSESSEE AND IT IS ONLY A CASE OF REVENUE SHARING ARRANGEMENT WHICH WOULD NOT FALL UNDER THE AMBIT OF PROVISIONS OF CHAPTER XVIIB OF THE ACT AND HENCE NO DISALLOWANCE U/S 40(A)(IA) OF THE ACT WOULD GET ATTRACTED. HE HOWEVER, PRAYED FOR SETTING ASIDE OF THIS ISSUE TO THE FILE OF THE LD AO TO RECONSIDER THESE EVIDENCES AFRESH IN THE INTEREST OF JUSTICE. IN RE SPONSE TO THIS, THE LD DR VEHEMENTLY RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 5.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIALS AVAILABLE ON RECORD INCLUDING THE PAPER BOOK OF THE ASSESSEE IN THIS RE GARD COMPRISING OF PAGES 3 TO 19. WE FIND THAT THERE IS NO CLEAR FINDING RECORDED BY THE AUTHORITIES BELOW WITH REGARD TO THE NATURE OF EACH AND EVERY PAYMENT MADE BY THE ASSESSEE TO M SL IN ACCORDANCE WITH VARIOUS CLAUSES OF THE JOINT VENTURE AGREEMENT DATED 15.7.2008 WHIC H IS THE BASIS ON WHICH VARIOUS PAYMENTS WERE MADE. THERE IS NO FINDING AS TO WHE THER THE SAID AGREEMENT IS A MERE REVENUE SHARING ARRANGEMENT OR IT IS MERELY AN AGRE EMENT ALLOWING THE ASSESSEE TO CARRY ON THE FOOD VENDING BUSINESS ON HIRE TOGETHER WITH SOM E COMMON FACILITIES. WE FIND THAT SUCH A CLEAR FINDING WOULD DETERMINE THE ISSUE OF APPLIC ABILITY OF TAX DEDUCTION PROVISIONS AS PER CHAPTER XVIIB OF THE ACT. IN THESE FACTS AND CIRCUM STANCES, WE DEEM IT FIT AND APPROPRIATE, IN THE INTEREST OF JUSTICE AND FAIRPLAY, TO SET AS IDE THIS ISSUE TO THE FILE OF THE LD AO TO DECIDE THE SAME AFRESH, IN ACCORDANCE WITH LAW BY CRITICAL LY EXAMINING EACH AND EVERY PAYMENT MADE BY THE ASSESSEE TO MSL IN ACCORDANCE WITH VARI OUS CLAUSES OF THE AGREEMENT DATED 15.7.2008. NEEDLESS TO MENTION THAT THE ASSESSEE B E GIVEN REASONABLE OPPORTUNITY OF BEING HEARD. ACCORDINGLY, THE GROUND 3(B) RAISED BY THE A SSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5 ITA NO.838/KOL/2016 YO FOODIES AY 2010-11 6. THE NEXT ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD CITA IS JUSTIFIED IN UPHOLDING THE DISALLOWANCE OF INTEREST PAID TO KOTA K MAHINDRA BANK LTD IN THE SUM OF RS. 1,91,816/- IN THE FACTS AND CIRCUMSTANCES OF THE CA SE. 6.1. THE BRIEF FACTS OF THIS ISSUE IS THAT THE LD AO OBSERVED THAT THE ASSESSEE HAD PAID A SUM OF RS. 1,91,816/- TO KOTAK MAHINDRA BANK LTD AS INTEREST ON UNSECURED LOAN WITHOUT DEDUCTION OF TAX AT SOURCE UNDER CHAPTER XVIIB OF T HE ACT. ACCORDINGLY HE DISALLOWED THE SAME U/S 40(A)(IA) OF THE ACT, WHICH WAS ALSO UPHEL D BY THE LD CITA. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 6.2. THE LD AR ARGUED THAT THERE IS NO NEED TO DED UCT TAX AT SOURCE WHEN THE INTEREST IS PAID TO A BANKING COMPANY. IN RESPONSE TO THIS, TH E LD DR VEHEMENTLY RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 6.3. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND LOT OF FORCE IN THE ARGUMENT OF THE LD AR IN THIS REGARD AND ACCORDINGLY HOLD THAT NO DISA LLOWANCE U/S 40(A)(IA) OF THE ACT WOULD OPERATE IN RESPECT OF PAYMENT OF INTEREST IN THE SU M OF RS. 1,91,816/- IN THE INSTANT CASE. ACCORDINGLY, THE GROUND 3(C ) RAISED BY THE ASSESSE E IS ALLOWED. 7. THE NEXT ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD CITA IS JUSTIFIED IN UPHOLDING THE DISALLOWANCE OF DONATION AND SUBSCRIP TION OF RS. 7,400/- IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 7.1. THE BRIEF FACTS OF THIS ISSUE IS THAT THE LD AO OBSERVED THAT A SUM OF RS. 7,400/- INCURRED BY THE ASSESSEE TOWARDS DONATION AND SUBSC RIPTION AS NOT INCIDENTAL TO THE BUSINESS OF THE ASSESSEE AND ACCORDINGLY DISALLOWED THE SAME , WHICH WAS ALSO CONFIRMED BY THE LD CITA . AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 6 ITA NO.838/KOL/2016 YO FOODIES AY 2010-11 7.2. THE LD AR ARGUED THAT THESE PAYMENTS REPRESEN T REGULAR POOJA EXPENSES AND SUBSCRIPTIONS PAID TO VARIOUS ORGANIZATIONS WHICH C OULD BE DIRECTED TO BE VERIFIED BY THE LD AO WITH THE RECEIPTS THEREON. IN RESPONSE TO THIS , THE LD DR VEHEMENTLY RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 7.3. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THAT THIS ISSUE REQUIRES TO BE EXAMINED BY THE LD AO ON VERIFICATION OF THE RECEIPTS OR ANY OTHER EVIDENCES TO BE SUBMITTED BY THE ASSESSEE FOR JUSTIFICATION OF ITS CLAIM AND ACCORDI NGLY THE GROUND 3(D) RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. THE LAST ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD CITA IS JUSTIFIED IN UPHOLDING THE DISALLOWANCE MADE ON ACCOUNT OF SALAR Y IN THE SUM OF RS. 20,67,124/- IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 8.1. THE BRIEF FACTS OF THIS ISSUE IS THAT THERE W AS A SURVEY CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE ON 23.3.2010, WHEREIN A PR OFIT AND LOSS ACCOUNT TILL THAT DATE WAS FOUND AS PER WHICH THE NET PROFIT WAS REFLECTED AT RS. 71,37,016/-. THE LD AO OBSERVED THAT THE NET PROFIT DISCLOSED BY THE ASSESSEE IN THE RET URN OF INCOME WAS RS. 3,78,009/-. THE ASSESSEE EXPLAINED THAT LOT OF ACTUAL EXPENSES INCU RRED WERE NOT ENTERED IN THE ACCOUNTS AND IN THE PROFIT AND LOSS ACCOUNT PREPARED ON THE DATE OF SURVEY. IT WAS ALSO EXPLAINED THAT EXPENSES LIKE DEPRECIATION, INTEREST ON BANK LOAN, RENT , BAD DEBTS, DEFERRED REVENUE WRITE OFF AND OTHER OUTSTANDING EXPENSES AS ON 31 ST MARCH ETC WERE PROVIDED ONLY AT THE END OF THE YEAR THEREBY RESULTING IN HUGE REDUCTION OF PROFITS BETWEEN 23.3.2010 AND 31.3.2010. THE LD AO HOWEVER OBSERVED THAT IN RESPECT OF SALARY PAYME NTS, THE SAME ARE PAYABLE EVERY MONTH AND THERE CANNOT BE SUBSTANTIAL VARIANCE BETWEEN SA LARY REPORTED IN THE PROFIT AND LOSS ACCOUNT AS ON 23.3.2010 AND THAT ON 31.3.2010 EXCEP T THE PROVISION TO BE MADE FOR THE MONTH OF MARCH 2010 THEREON. THE LD AO OBSERVED TH AT THE SALARY REFLECTED IN THE FINAL PROFIT AND LOSS ACCOUNT WAS RS. 64,71,010/- AS AGAI NST RS. 40,36,896/- ON THE DATE OF SURVEY. THE ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF SA LARY EXPENSES. THE ASSESSEE FILED COMPLETE DETAILS IN 6 PAGES VIDE REPLY DATED 18.11. 2011 BEFORE THE LD AO INCLUDING THE 7 ITA NO.838/KOL/2016 YO FOODIES AY 2010-11 DETAILS OF SALARY AND WAGES PAID DIRECTLY AND ALSO PAID THROUGH CONTRACTOR NAMED KOLKATA DYNAMIC SERVICE PVT LTD. THE LD AO OBSERVED THAT THE ASSESSEE HAD SHOWN SALARY FOR MARCH 2010 AS ONLY RS. 5,50,781/- APART FROM OBSERV ING SOME DISCREPANCIES IN THE TOTAL SALARY FIGURE GIVEN BY THE ASSESSEE FROM TIME TO TI ME BEFORE THE LD AO. HE ALSO OBSERVED THAT THE INDIVIDUAL SALARIES OF 66 PERSONS OUT OF 84 PERSONS ARE BELOW RS. 50,000/- EACH. HE ACCORDINGLY CONCLUDED THAT WITH HIGH ATTRITION RATE GENERALLY AMONG EMPLOYEES GETTING SUCH LOW SALARIES AND DISBURSAL OF THE SAME IN CASH, IT WAS VERY EASY FOR THE ASSESSEE TO INFLATE ITS EXPENSES UNDER THIS HEAD. THE ASSESSEE ALSO EXPLA INED THAT THE LEDGER WAS NOT UPDATED AT THE TIME OF SURVEY. THE LD AO DID NOT ACCEPT TO TH IS PROPOSITION AND CONCLUDED THAT THE SALARY FOR THE FIRST ELEVEN MONTHS WAS RS. 40,36,89 6/- WHICH WORKS OUT TO RS. 3,66,990/- PER MONTH (40,36,896 / 11) . ACCORDINGLY, HE DETERMINE D THE TOTAL SALARY AT RS. 44,03,886/- ( 40,36,896 + 3,66,990) FOR THE WHOLE YEAR AS COMPARE D TO RS. 64,71,010/- DISCLOSED BY THE ASSESSEE AND ADDED THE DIFFERENCE OF RS. 20,67,124/ - TO THE TOTAL INCOME OF THE ASSESSEE TOWARDS INFLATION OF EXPENSES. THIS ACTION OF THE LD AO WAS UPHELD BY THE LD CITA . AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 8.2. THE LD AR ARGUED THAT THE YEAR END ADJUSTMENT ENTRIES , RECONCILIATION ENTRIES, BONUS PROVISION FOR THE WHOLE YEAR, SALARY AND WAGES PROV ISION FOR MARCH MONTH, ETC WOULD BE PROVIDED ONLY AT THE END OF THE YEAR WHICH OBVIOUSL Y COULD NOT HAVE BEEN REFLECTED IN THE ACCOUNTS MAINTAINED UPTO THE DATE OF SURVEY ON 23.3 .2010. APART FROM THIS, THE ACCOUNTS UPTO THE DATE OF SURVEY WAS NOT UPDATED ON SEVERAL COUNTS . HE ARGUED THAT THE BOOKS OF ACCOUNTS OF THE ASSESSEE HAVE BEEN DULY AUDITED BY AN INDEPENDENT CHARTERED ACCOUNTANT AND FORMING PART OF RECORDS OF THE LOWER AUTHORITIES AN D HENCE PRAYED FOR VERIFICATION OF THIS ISSUE AFRESH IN THE LIGHT OF VARIOUS EVIDENCES AND THE BOOKS OF ACCOUNTS BY THE LD AO IN THE INTEREST OF JUSTICE. IN RESPONSE TO THIS, THE LD D R VEHEMENTLY RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 8.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIALS AVAILABLE ON RECORD. WE FIND IN THE INSTANT CASE, THAT THE ENTIRE ISSUE OF SALARY ACCOUNT REQUIRES RE-EXAMINATION BY THE LD AO IN THE LIGHT OF VARIOUS EVIDENCES AVAILAB LE WITH THE ASSESSEE TOGETHER WITH THE 8 ITA NO.838/KOL/2016 YO FOODIES AY 2010-11 BOOKS OF ACCOUNTS AND ACCORDINGLY WE DEEM IT FIT AN D APPROPRIATE TO SET ASIDE THIS ISSUE TO THE FILE OF THE LD AO TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION THAT THE ASSESSEE BE GIVEN REASONABLE OPPORTUNITY O F BEING HEARD. ACCORDINGLY, THE GROUND 3(E) RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTI CAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02.12.2016. SD/- SD/- (S.S.VISWANETHRA RAVI) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 2ND DECEMBER, 2016 JD. SR. P.S COPY OF THE ORDER FORWARDED TO: 1. APPELLANT YO FOODIES, 21, HEMANTA BASU SARANI, CE NTRE POINT, 4 TH FLOOR, ROOM NO. 440, KOLKATA-700 001. 2. RESPONDENT ACIT, CIRCLE-26, KOLKATA. 3. CIT(A), KOLKATA 4. CIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .