M. N. Dastur & Co. Pvt. Ltd., Kolkata V. ACIT, CIR-2 (TDS), KOLKATA, Kolkata

ITA 920/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0907 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 02-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Assessee Lawyers: P K ACHARYYA
• Keywords: Principle of natural justice

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.919-920/KOL/2016 ASSESSMENT YEARS:2008-09 & 2010-11 M.N. DASTUR & CO. PVT. LTD.,P-17, MISSION ROW EXTENSION, KOLKATDA-13 [ PAN NO.CALMO 0350 A ] / V/S . ACIT, CIRCLE-2(TDS) 10B, MIDDLETON ROW,7 TH FLOOR, KOLKATA-71 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI P.K. ACHARYYA, ADVOCATE ! /BY REVENUE SHRI SAURABH KUMAR. ADDL. CIT-DR /DATE OF HEARING 24-10-2017 /DATE OF PRONOUNCEMENT 06-12-2017 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- BOTH APPEAL BY THE ASSESSEE ARE DIRECTED AGAINST TH E ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-24, KOLKATA DATED 11.02.2016 P ASSED U/S200A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR ASSESSMENTS YEAR 2008-09 & 2010-11. SHRI P.K.ACHARYYA, LD. ADVOCATE APPEARED ON BEHALF OF ASSESSEE AND SHRI SAUARABH KUMAR, LD. DEPARTMENTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. 2. BOTH APPEALS ARE HEARD TOGETHER AND BEING DISPOS ED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. FIRST WE TAKE UP ITA NO.919/KOL/2016 FOR A.Y. 08-09 . 3. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL, WHICH REPRODUCED BELOW:- ITA NO.919-920/KOL/2016 A.YS 08-09 & 10-11 M.N. DASTUR & CO. PVT. LTD. VS. CIT, CIR- ( TDS) KO. PAGE 2 1.(THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS)-24 HAS ERRED IN NOT ALLOWING THE APPELLANTS GROUND THAT TH ERE WAS AN EXCESS PAYMENT OF RS.73,360 IN THE MONTH OF JULY 2007. 2. THAT ON FACTS AND CIRCUMSTANCES LD. CIT(APPEALS) -24 OF THE CASE THE LD. CIT(APPEALS)-24 HAS ERRED IN NOT ALLOWING THE APPEL LANTS GROUND THAT THE EXCESS PAYMENT OF RS.73,360 MADE IN THE PREVIOUS MO NTH I.E. IN JULY 2007 BEEN SET OFF AGAINST THE PAYMENT FOR THE MONTH OF AUGUST 2007 IN THE SAME QUARTER OF TDS RETURN. 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(APPEALS)-24 HAS WRONGLY CONFIRMED THE INTEREST OF RS.42550 U/S 201( 1A). 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL AT OR BEFORE THE HEARING OF APPEA L. 4. FIRST ISSUE RAISED BY ASSESSEE IN GROUND NO.1 & 2 IS THAT LD. CIT(A) ERRED IN NOT ADJUSTING THE EXCESS AMOUNT PAID FOR 73360.00 ONLY TOWARDS THE AMOUNT TAX DEDUCTED AT SOURCE (TDS) IN THE SUBSEQUENT MONTH. 5. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS A PRIV ATE LIMITED COMPANY AND ENGAGED IN THE BUSINESS OF CONSULTANCY, ADVISORY SERVICES, ENGINEERING PROJECT AND VARIOUS OTHER ALLIED JOBS. THE ASSESSEE IN THE SECOND QUART ER OF FINANCIAL YEAR 2007-08 HAS DEPOSITED/ PAID THE AMOUNT OF TDS AS DETAILED UNDER :- DATE OF DEPOSIT RELATED TO MONTH AMOUNT (RS) CHALLAN SR. NO. 07/8/07 JULY 2007 2093500 1458 07/09/07 AUGUST, 2007 1939990 1204 06/10107 SEPTEMBER, 2007 5845515 1259 HOWEVER, ASSESSEE FURTHER SUBMITTED THAT THE LIABIL ITY TO DEPOSIT THE TDS AMOUNT FOR THE MONTH OF JULY, 2007 WAS AT 22,20,140/- BUT ASSESSEE HAS DEDUCTED AND DEPOSITED A SUM OF 20,93,500/- DATED 07.08.2007. THUS, THE EXCESS AMOU NT OF 73,360/- WAS DEPOSITED TOWARDS THE TDS. THE ASSESSEE IN THE SUBS EQUENT MONTH I.E. AUGUST, 07 HAS ADJUSTED THE EXCESS AMOUNT OF TDS AND DEPOSITED TH E REMAINING AMOUNT FOR 19,39,990/- ( 2013350 73360 ). HOWEVER, ASSESSING OFFICER FAILED TO ALLOW THE CREDIT OF THE EXCESS AMOUNT PAID BY THE ASSESSEE FO R 73,360/- IN ITS INTIMATION ISSUED U/S 200A OF THE ACT. THUS, A DEMAND OF 73,360/- ON ACCOUNT OF SHORT PAYMENT OF TAX WAS RAISED. THE AO CONSEQUENTIALLY CHARGED THE AMOU NT OF INTEREST FOR 42,550/- ON THE SHORT AMOUNT OF TDS. ITA NO.919-920/KOL/2016 A.YS 08-09 & 10-11 M.N. DASTUR & CO. PVT. LTD. VS. CIT, CIR- ( TDS) KO. PAGE 3 6. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER:- 4. THE DETAILS OF SHORT PAYMENT AMOUNT AND INTERES T ARE GIVEN IN JUSTIFICATION REPORT WHICH IS PART OF THE ORDER U/S 200A OF THE I T ACT DATED 31.10.2011. THE COPY OF THE SAID JUSTIFICATION REPORT HAS NOT BEEN FILED. WITHOUT REFERRING TO THE SAID JUSTIFICATION REPORT IT IS DIFFICULT TO APPREC IATE WHAT IS WRONG IN THE COMPUTATION OF AMOUNT AND INTEREST TOWARDS SHORT PA YMENT AS GIVEN IN THE INTIMATION U/S 200A OF THE IT ACT. IN THE COPY OF A PPLICATION FOR RECTIFICATION DATED 05.06.2012 ENCLOSED AS ANNEXURE-V TO THE SUBMISSION IN APPEAL, THE APPELLANTS A/R IS NOT CLEAR WHAT IS WRONG, IF ANY, WITH THE WITHOUT SPECIFICALLY POINTING OUT THE DEFAULT PICKED UP BY THE ASSESSING OFFICER AS PER JUSTIFICATION REPORT. ON THE BASIS OF THIS RECTIFICATION REQUEST IT IS DIFFICULT TO APPRECIATE WHETHER THERE IS ANY ERROR IN THE AO'S CALCULATION. VAGUELY RAISING THE CLAIM THAT THE ABOVE AMOUNTS OF TDS PAYMENT WERE NOT ALLO WED CREDIT DOES NOT MEET THE PURPOSE WHICH IS TO POINT OUT THE MISTAKE. 5. IN THE SUBMISSION DATED 02.02.2016 FILED IN THE APPEAL HEARING ON 4.2.2016 SLIGHTLY MORE SPECIFIC CLAIM HAS BEEN MADE AS REPRO DUCED ABOVE IN PARA 3. THE CLAIM IS THAT HE DEPOSIT IN JULY WAS IN EXCESS OF D EDUCTIBLE BY RS.73,360/- WHICH WAS ADJUSTED IN THE MONTH OF AUGUST AGAINST T HE DEDUCTIBLE TO RS.20,13,350/-. IN OTHER WORDS THE CLAIM IS THAT RS .73,360/- WAS ADJUSTED AGAINST DEDUCTION OF AUGUST AND ACCORDINGLY DEPOSIT IN AUGUST WAS LESS THAN THE DEDUCTED AMOUNT. THE CLAIM IS MADE THAT THE STA TEMENT DATED 7.9.2007 IS ENCLOSED AS ANNEXURE-IV BUT THE SAID ANNEXURE IS ON LY A TABLE SELF-PREPARED BY THE APE. THOUGH EXPLANATION SEEMS CONVINCING, IT CA NNOT BE ACCEPTED BECAUSE ANY CLAIM HAS TO BE MAD WITH REFERENCE TO THE JUSTI FICATION REPORT FORMING PART OF THE INTIMATION U/S. 200A WHICH HAS BEEN CHALLENG ED. IT IS SURPRISING WHY THE EXPLANATION OF SUCH NATURE HAS BEEN FILED WITHOUT E VEN A COPY OF THE JUSTIFICATION REPORT. EVEN 154 APPLICATION TO THE A O IS VAGUE AND MUCH SHORT OF EVEN INDICATING THE ERROR IF ANY IN THE ASSESSING O FFICER'S INTIMATION DATED 31.10.2011. NO COPY OF THE TRACES HAS BEEN MADE AVA ILABLE EVEN IN APPEAL. THERE IS NO REFERENCE TO THE RETURN OF TDS STATEMEN TS FILED TO THE DEPARTMENT. 6. I, THEREFORE, FIND IT DIFFICULT TO ALLOW THE GRO UNDS MERELY ON THE BASIS OF THE SUBMISSION DATED 02.02.2016 AS IT DOES NOT RELY ON THE PRIMARY PAPERS FROM WHICH THE AMOUNT OF TDS DEDUCTIBLE, DEDUCTED AND DE POSITED CAN BE WORKED OUT. AGGRIEVED BY THE ABOVE FINDING OF LD. CIT(A), THE A SSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. LD. AR BEFORE US SUBMITTED THAT CLAIM OF ASSESSE E WAS REJECTED BY LD. CIT(A) ON THE GROUND THAT IT FAILED TO FILE THE COPY OF JU STIFICATION REPORT. HE FURTHER SUBMITTED THAT AT THE TIME OF HEARING BEFORE LD. CIT(A) THE J USTIFICATION REPORT WAS NOT SUBMITTED DUE TO A FIRE BROKE OUT IN THE BUILDING P REMISES OF INCOME TAX DEPARTMENT. ITA NO.919-920/KOL/2016 A.YS 08-09 & 10-11 M.N. DASTUR & CO. PVT. LTD. VS. CIT, CIR- ( TDS) KO. PAGE 4 LD. AR FURTHER SUBMITTED THAT THE JUSTIFICATION REP ORT IS NOW AVAILABLE WITH IT AND THEREFORE HE PRAYED BEFORE THE BENCH THAT THE MATTE R CAN BE RESTORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WIT H LAW. ON THE OTHER HAND, LD. DR AGREED TO THE SUBMISSION OF THE LD. AR FOR THE ASSESSEE. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, WE FIN D THAT THE APPEAL WAS REJECTED BY LD. CIT(A) ON THE GROUND OF NON AVAILABILITY OF JUSTIFI CATION REPORT. HOWEVER, LD. AR FOR THE ASSESSEE BEFORE US CLAIMED THAT THE JUSTIFICATI ON REPORT IS NOW AVAILABLE WHICH IN OUR VIEW REQUIRES TO BE CONSIDERED BY LD. CIT(A). IN VIEW OF THE ABOVE PROPOSITION, IN THE INTEREST OF NATURAL JUSTICE AND FAIR PLAY WE RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WIT H LAW. HENCE, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOS E. 9. NEXT ISSUE IS CONSEQUENTIAL IN NATURE AND DOES N OT REQUIRE ANY ADJUDICATION. 10. LAST ISSUE IS GENERAL IN NATURE AND DOES NOT RE QUIRE ANY SEPARATE ADJUDICATION. COMING TO ITA NO.920/KOL/2016 FOR A.Y 10-11 . 11. THE GROUNDS AS RAISED BY THE ASSESSEE READS AS UNDER:- 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(APPEALS)-24 HAS ERRED IN CONFIRMING THAT THERE IS A LATE PAYMENT OF TAX I N THE SECOND QUARTER OF THE FINANCIAL YEAR -2009-2010. 2. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS)-24 HAS ERRED IN CONFIRMING THE INTEREST OF RS.44816- UNDER SECTION 201(1A) 3. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS)-24 HAS ERRED IN CONFIRMING THAT THERE IS A SHORT DEDUCTION OF RS.27580 IN THE FOURTH QUARTER OF FINANCIAL YEAR 2009-10. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD ALTER OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL AT OR BEFORE THE HEARING OF APPEA L. 12. GROUND NO.1 AND 2 ARE INTER-RELATED AND THEREFO RE BEING TAKEN UP TOGETHER. THE ISSUE RAISED BY ASSESSEE IS THAT LD. CIT(A) ERRED I N CONFIRMING THE AMOUNT OF INTEREST FOR 44,81/- U/S 201(1A) OF THE ACT ON ACCOUNT OF LATE DEPOSIT OF TDS. 13. AT THE OUTSET, LD. AR BROUGHT TO OUR NOTICE THA T ASSESSEE WAS LIABLE TO DEPOSIT THE AMOUNT OF TDS PERTAINING TO THE MONTH OF JULY, 2009 ON 07.08.2009 BUT THERE WAS ALL INDIA BANK STRIKE ON 6 TH AND 7 TH AUGUST, 2009, FOR THIS REASON, TDS AMOUNT WAS NOT DEPOSITED, WITHIN THE TIME AS SPECIFIED UNDER THE A CT. THUS, ASSESSEE HAS DEPOSITED THE ITA NO.919-920/KOL/2016 A.YS 08-09 & 10-11 M.N. DASTUR & CO. PVT. LTD. VS. CIT, CIR- ( TDS) KO. PAGE 5 AMOUNT OF TDS ON 08.08.2009 SO THE DELAY IN DEPOSIT ING THE TDS AMOUNT OCCURRED DUE TO NO FAULT ON THE PART OF ASSESSEE. IN VIEW OF ABOVE, LD. AR PRAYED BEFORE US FOR WAIVER OF INTEREST. ON THE OTHER HAND, LD. DR VEHEMENTLY RELIED ON THE ORDER OF AUTHORITIES BELOW. 14. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE IN THE INST ANT CASE RELATES TO THE AMOUNT OF INTEREST CHARGED U/S 201(1A) OF THE ACT ON ACCOUNT OF LATE DEPOSIT OF TDS AMOUNT. INDEED, THERE WAS A DELAY FOR JUST ONE DAY IN THE D EPOSIT OF TDS AMOUNT. MOREOVER THE REASON FOR DELAY IN THE DEPOSITING OF TDS WAS BEYON D THE CONTROL OF ASSESSEE AS THERE WAS ALL INDIA BANK STRIKE ON 6 TH AND 7 TH , AUGUST, 2009. IT IS WELL-SETTLED THAT AN OBLIGATION GETS DISCHAR GED DUE TO IMPOSSIBILITY OF PERFORMANCE. THE ASSESSEE IN THE INSTANT CASE HAS B EEN PAYING THE AMOUNT OF TDS WELL IN TIME BUT FOR THE IMPUGNED MONTH THE PAYMENT WAS DELAYED FOR A DAY FOR THE REASONS BEYOND THE CONTROL OF THE ASSESSEE I.E. DUE TO ALL INDIA BANKS STRIKE. THE LAW OF IMPOSSIBILITY OF PERFORMANCE DOES NOT NECESSARIL Y REQUIRE ABSOLUTE IMPOSSIBILITY, BUT ALSO ENCOMPASS THE CONCEPT OF SEVERE IMPRACTICA BILITY. IN OUR HUMBLE OPINION, THE DOCTRINE OF IMPOSSIBILITY OF PERFORMANCE APPLIES IN THIS CASE. DUE TO UNCONTROLLABLE CIRCUMSTANCES, THE PERFORMANCE OF THE OBLIGATION TO DEPOSIT THE TAX AT SOURCE TO THE GOVERNMENT EXCHEQUER BECAME IMPOSSIBLE WITHIN THE T IME. THE IMPOSSIBILITY OF PERFORMANCE RELEASES THE ASSESSEE FROM ITS OBLIGATI ON TO DEPOSIT THE TAX AT SOURCE WITHIN IN THE TIME. A DEFAULT OCCURS ONLY WHEN AN O BLIGATION IS NOT PERFORMED. WHEN THE ASSESSEE IS RELEASED FROM THE OBLIGATION, IT CA NNOT BE SAID THAT IT IS IN DEFAULT. THUS, WHEN THE ASSESSEE WAS PREVENTED FROM DEPOSITING THE TAX TO GOVERNMENT EXCHEQUER WITHIN THE TIME, THE QUESTION OF ITS NOT PERFORMING THE OBLIGATION UNDER LAW DOES NOT ARISE AND THUS IT CANNOT BE HELD A DEFAULTER. WE AL SO FIND SUPPORT FROM THE LEGAL MAXIM LEX NON COGIT AD IMPOSSIBILIA MEANING THEREBY THAT THE LAW DOES NOT COMPEL A MAN TO DO WHAT HE CANNOT POSSIBLY PERFORM. IN HOLDING S O WE FIND SUPPORT & GUIDANCE FROM THE JUDGMENT OF HONBLE SUPREME COURT IN THE C ASE OF KRISHNA SWAMY S. PD. & ANR VS. UNION OF INDIA & ORS REPORTED IN 281 ITR 30 5 WHEREIN IT WAS HELD THAT : THE OTHER RELEVANT MAXIM IS, LEX NON COGIT AD IMPOSSIBILIA THE LAW DOES NOT COMPEL A MAN TO DO WHAT HE CANNOT POSSIBLY PERFORM. THE LA W ITSELF AND ITS ADMINISTRATION IS ITA NO.919-920/KOL/2016 A.YS 08-09 & 10-11 M.N. DASTUR & CO. PVT. LTD. VS. CIT, CIR- ( TDS) KO. PAGE 6 UNDERSTOOD TO DISCLAIM AS IT DOES IN ITS GENERAL AP HORISMS, ALL INTENTION OF COMPELLING IMPOSSIBILITIES, AND THE ADMINISTRATION OF LAW MUST ADOPT THAT GENERAL EXCEPTION IN THE CONSIDERATION OF PARTICULAR CASES. [SEE : U.P.S.R.T.C. VS. IMTIAZ HUSSAIN 2006 (1) SCC 380, SHAIKH SALIM HAJI ABDUL KHAYUMSAB VS. KUMA R & ORS. 2006 (1) SCC 46, MOHAMMOD GAZI VS. STATE OF M.P. & ORS. 2000 (4) SCC 342 AND GURSHARAN SINGH VS. NEW DELHI MUNICIPAL COMMITTEE 1996 (2) SCC 459 ]. THUS IN VIEW OF ABOVE WE HOLD THAT THE ASSESSEE WOU LD BE DISCHARGED FROM SUCH AN OBLIGATION AND HENCE CANNOT BE REGARDED A DEFAULTER . THUS THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS ALLOWED AND AO IS DIRECTED ACCOR DINGLY. 15. NEXT ISSUE RAISED BY ASSESSEE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF AO BY HOLDING THAT THERE WA S SHORT DEDUCTION OF TDS AMOUNT FOR 27,580/- IN THE FOURTH QUARTER FOR FINANCIAL YEAR 2 009-10. 16. DURING THE COURSE OF PROCEEDINGS, AO ISSUED INT IMATION U/S. 200A OF THE ACT BY RAISING THE DEMAND OF 27,580/- ON ACCOUNT OF SHORT PAYMENT OF TDS ALONG WITH INTEREST FOR 5,240/- ONLY. 17. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER:- 2. ADDITION AL GROUNDS HAVE BEEN RAISED BY WAY OF LETTER DATED 23.03.2015 IN RESPECT OF SHORT DEDUCTION OF TAX AND INTEREST THER EON. NO COPY OF JUSTIFICATION REPORT FORMING PART OF THE INTIMIDATION U/S. 200A O F THE IT ACT DATED 27.10.2011 HAS BEEN ENCLOSED TO EITHER FORM-35 OR VARIOUS SUBM ISSIONS OR ADDITIONAL GROUNDS. IT IS, THEREFORE, DIFFICULT TO APPRECIATE HOW THE SHORT DEDUCTION CAN BE CLAIMED TO HAVE BEEN WRONGLY COMPUTED BY THE AO. I, THEREFORE FIND DIFFICULT TO ENTERTAIN THE ADDITIONAL GROUND THUS RAISED. IT IS, THEREFORE, ALSO NOT ALLOWED. BEING AGGRIEVE BY THE FINDING OF LD. CIT(A) ASSESSE E CAME IN SECOND APPEAL BEFORE US. 18. LD. AR BEFORE US SUBMITTED THAT THERE WAS NO SH ORT DEDUCTION OF TDS AMOUNT AS ALLEGED BY AO. HE FURTHER SUBMITTED THE APPEAL W AS DISMISSED BY LD. CIT(A) AS ASSESSEE FAILED TO FILE JUSTIFICATION REPORT. NOW T HE REPORT IS AVAILABLE AND THEREFORE, HE PRAYED BEFORE THE BENCH THAT THE MATTER CAN BE REST ORED BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. ITA NO.919-920/KOL/2016 A.YS 08-09 & 10-11 M.N. DASTUR & CO. PVT. LTD. VS. CIT, CIR- ( TDS) KO. PAGE 7 ON THE OTHER HAND, LD. DR FAIRLY AGREED WITH THE SU BMISSIONS OF LD. AR FOR THE ASSESSEE. 19. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AT THE OUTSET, WE HAV E ALREADY DECIDED THE SAME ISSUE IN ASSESSEES APPEAL IN ITA NO.919/KOL/2016 FOR A.Y. 2 008-09 AND TAKING A CONSISTENT VIEW AND IN THE INTEREST OF NATURAL JUSTICE AND FAI R PLAY WE RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR FRESH ADJUDICATION IN AC CORDANCE WITH LAW. HENCE, THIS GROUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTI CAL PURPOSE. 20. LAST ISSUE IS GENERAL NEEDS NO ADJUDICATION. 21. IN THE RESULT, FOR THE STATISTICAL PURPOSE, BOTH TH E APPEAL OF ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 06/12/2017 SD/- SD/- ( ( !) ( !) (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP, SR.P.S * - 06/12/2017 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M.N.DASTUR & CO. PVT. LTD., P-17, MISSION ROW EXTENSION, KOLKATA-13 2. ! /REVENUE-ACIT, CIRCLE-2(TDS), 10B, MIDDLETON ROW, 7 TH , FL, KOLKATA-71 3. - . / CONCERNED CIT 4. . - / CIT (A) 5. / ((- , - / DR, ITAT, KOLKATA 6. 3 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO -,