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Income Tax Appellate Tribunal, “C”, BENCH KOLKATA
Before: SHRI A. T. VARKEY, JM & DR. A. L. SAINI, AM
आदेश / O R D E R Per Dr. A. L. Saini:
Thesetwo captioned appeals filed by the Revenue, pertaining to Assessment Years 2009-10 & 2012-13, are directed against orders passed by the Commissioner of Income Tax(Appeals)-6, Kolkata, which in turn arise out of assessment orders passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’). 2. Since these two appeals filed by the Revenue pertain to same assessee, identical issues are involved, therefore, these have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity.
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13
First, we take Revenue’s appeal in ITA No.736/Kol/2016, for A.Y.2009- 10.The Revenue has raised the following grounds of appeal:
“Ground No.1: On the facts and in the circumstances of the case Ld. CIT(A) has erred in annulling the reassessment order without appreciating the fact there was actually an under assessment of income of Rs.3,83,41,573/-. Ground No.2: That the appellant craves for leave to add, delete or modify any of the grounds of the appeal before or at the time of hearing.”
At the outset itself, the ld. Counsel for the assessee submitted that during the course of reassessment proceedings, the Assessing Officer has passed the order u/s 147/251/143(3) of the Act without recording reasons. In fact, the Assessing officer has reviewed his own order, which is not permitted under the Income Tax Act. While completing the reassessment under section 147/251/143(3) of the Act, the assessing officer noted the reason recorded as follows:
“The assessment was completed U/s 143 (3) of the Income Tax Act, 1961 on 27.12.2011. In respect of the assessment order dated 27.12.2011, I had reasons to believe that the disallowance made on account of Section 14A of the Income Tax Act, 1961 in respect of proportionate interest and the average value of investment were not considered properly and hence the income chargeable to tax escaped assessment to that extent. To reassess/recomputed the income, a notice dated 20.03.2014 was issued u/s 148 of the I.T. Act, 1961. In response to the said notice, the assessee vide its letter dated 24.03.2014, asked to furnish the recorded reasons. The recorded reasons were supplied to the assessee on 25.03.2014. The assessee, vide its letter dated 01.04.2014, filed its objection for the proposed reassessment and stated to consider its revised return filed on 28.03.2011 as return filed in response to the notice dated 20.03.2014. In response to the notice, Mr. B. K. Chaturvedi, AR, appeared and reiterated the contention made byhim in his letter dated 01.04.2014.
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13 I have considered the arguments of Mr. Chaturvedi which is not acceptable as the fact on which the appellate order was passed is not identical to the present fact and hence the assessment is revised a follows” As per the above reasons of reopening, stated in the reassessment order, the Assessing Officer observed that the assessment of the assessee was completed u/s 143(3) of the Act on 27/12/2011, and he had reasons to believe that the disallowance made on account of section 14A of the Act in respect of proportionate interest and the average value of investment were not considered properly and, therefore, the income chargeable to tax escaped assessment to that extent and based on this reasoning he reopened the assessment and made the disallowance u/s 14A r.w.r 8D of the I.T Rules to the tune of Rs.3,83,41,572/- ( Rs. 5,06,72,445 – Rs. 1,23,30,872). That is, as per assessment order completed U/s 143(3) of the Act on 27.12.2011, the disallowance computed to the tune of Rs.1,23,30,872/- has been reduced by the AO from the total disallowance computed in reassessment proceedings at Rs.5,06,72,445/-, to arrive at the net disallowance to the tune of Rs.3,83,41,572/-.
5.On appeal by the assessee, the ld. CIT(A) deleted the addition. The ld CIT(A) held that it was merely a change of opinion and Assessing Officer has not brought any tangible material on record to show that the income chargeable to tax has escaped assessment.
Aggrieved by the order of ld CIT(A), the Revenue is in appeal before us.The ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer which we have already noted in our earlier para and is not being repeated for the sake of brevity. On the other hand, the ld Counsel for the assessee has defended the order passed by the ld CIT(A).
Having heard the rival submissions and perused the materials available on record, we note that Assessing Officerhas completed assessment U/s 143 (3) of the Income Tax Act, 1961 on 27.12.2011, where he disallowed the amount under section 14A read with Rule 8D to the tune of Rs.1,23,30,872/-, Page | 3
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13 hence, the issue relating to disallowance under section 14A read with Rule 8D, was on record of the assessing officer. We note that in the reassessment proceedings U/s 147/148, the AO has reviewed his shortcomings, which he committed during the original assessment U/s143(3) of the Act, which is tantamount to review of the original order passed by him U/s 143(3) of the Act, which is not allowed under the Income Tax Act. Order passed by the assessing officer U/s 143(3) can be reviewed by the superior authorities, that is, by CIT(Appeals) or by CIT under section 263 of the Act. We note that assessing officer has not brought on record any new tangible material to show that income has escaped assessment, he reopened the assessment based on the material available on record during the original assessment proceedings under section 143(3) of the Act, and therefore it is just a change of opinion.
We note that in the reassessment order, the AO has stated that he had reasons to believe that the disallowance made on account of Section 14A of the Income Tax Act, 1961 in respect of proportionate interest and the average value of investment were not considered properly and hence the income chargeable to tax escaped assessment to that extent. Based on this reason the AO, during the reassessment proceedings computed the disallowance under section 14A to the tune of Rs.5,06,72,445/- ( consisting disallowance under Rule 8D (2) (ii) at Rs.4,61,32,040/- and disallowance under Rule 8D (2) (iii) at Rs.45,40,405/-). We note that in the original assessment U/s 143(3) the disallowance of Rs. 1,23,30,872/-, under section 14A, had been made, which included the disallowance of interest of Rs. 1,00,55,126/-, as per Rule 8D(2) (ii) and Rs. 22,75,746/-, as per Rule 8D (2) (iii). Therefore, it is abundantly clear that assessing officer did not give any evidence of any tangible material in his possession in the recorded reasons other than the original material on which disallowance under section 14A was based in the original assessment order under section 143(3) of the Act. Hence there is no ‘tangible material’ to come to the conclusion that there is escapement of income. The reasons must have a live link with the formation Page | 4
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13 of belief, therefore in the assessee`s case under consideration, we note that there is ‘change of opinion’ and hence the reassessment is bad in law.
9.We note that theConditions laid down in section 147 of the Act to reopen the assessment are as follows: If the A.O. has reason to believe that any income chargeable to tax has escaped assessment for any assessment year then following conditions may exist: - There must be material for the belief. - Circumstances must exist and cannot be deemed to exist for arriving at an opinion; - Reasons to believe must be honest and not based on suspicion, gossip, rumour or conjecture; - Reasons referred to must disclose the process of reasoning by which the AO holds “reasons to believe” and change of opinion does not confer jurisdiction to reassess; - There must be nexus between material and belief; and - Reasons recorded must show application of mind by the AO.
10.We note that in CIT vs. Kelvinator of India Ltd. 256 ITR 1 the Full Bench of the Hon`ble Delhi High Court was considering a case of reopening u/s 147 within 4 years from the end of the assessment year. The Court held that when a regular order of assessment is passed in terms of section 143 (3) of the Act, a presumption can be raised that such an order has been passed on application of mind. It was held that if it be held that an order which has been passed purportedly without application of mind would itself confer jurisdiction upon the Assessing Officer to reopen the proceeding without anything further, the same would amount to giving premium to an authority exercising quasi-judicial function to take benefit of its own wrong. It was held that section 147 of the Act does not postulate conferment of power upon the Assessing Officer to initiate
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13 reassessment proceedings upon a mere change of opinion. On appeal by the department to the Supreme Court,(reported in 320 ITR 561(SC)) it was held that though the power to reopen under the amended section 147 of the Act, is much wider, one needs to give a schematic interpretation to the words “reason to believe” failing which section 147 of the Act, would give arbitrary powers to the AO to re-open assessments on the basis of “mere change of opinion”, which cannot be per se reason to re-open. One must also keep in mind the conceptual difference between power to review and power to re-assess. The AO has no power to review; he has the power to re-assess. But re-assessment has to be based on fulfillment of certain pre-conditions as explained above and if the concept of “change of opinion” is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of “change of opinion” as an in-built test to check abuse of power by the AO. Hence, after 1.4.1989, the AO has power to re-open, provided there is “tangible material” to come to the conclusion that there is escapement of income from assessment.
Therefore, we are of the view that an error discovered on a reconsideration of the same material (and no more) does not give AO, the power to assume jurisdiction to make reassessment. That being so, we decline to interfere in the order passed by the ld CIT(A), his decision on this issue is hereby upheld and appeal of the Revenue is dismissed.
In the result, the appeal filed by the Revenue is dismissed.
Now, we take Revenue’s appeal in ITA No.737/Kol/2016, for A.Y. 2012- 13.The Grievances raised by the Revenue in this appeal are as follows:
“Ground No.1: Page | 6
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13
On the facts and in the circumstances of the case whether Ld. CIT(A) has erred in law as well as on facts in holding that disallowance 14A of proportionate interest under rule 8D(2)(ii) was not warranted, ignoring the fact that for disallowance u/s 14A rule 8D is mandatory from Assessment Year 2008-09 as held by the Hon’ble Bombay High Court in the case of Godrej and Boyce Manufacturing Ltd. vs. CIT (328 ITR 81).
Ground No.2: On the facts and in the circumstances of the case whether Ld. CIT(A) has erred in law as well as on facts in holding that addition of notional interest of Rs.37,50,000/- on sticky loan was not warranted, ignoring the fact that as per Auditor’s report, interest of Rs.37,50,000/- had accrued in the relevant previous year but was not recognized by the assessee in its accounts though the assessee was following mercantile method of accounting. Ground No.3: On the facts and in the circumstances of the case whether Ld. CIT(A) has erred in law as well as on facts in holding that amount of depreciation of Rs.16,40,567/- on plant and machinery purchased out of amount withdrawn from credit available with NABARD was not warranted ignoring the clear provisions of section 33AB(4)(c) of the Act. Ground No.4: On the facts and in the circumstances of the case whether Ld. CIT(A) has erred in deleting the addition of Rs.1,87,73,760/- made by the Assessing Officer at the time of computation of book profit ignoring the clear provision of clause (f) of Explanation I to section 115JB of the Act. Ground No.5: That the appellant craves for leave to add, delete or modify any of the grounds of the appeal before or at the time of hearing.”
Ground No.1 raised by the Revenue relates to disallowance u/s 14A r.w.r 8D(2)(ii) of the I.T. Rules.
At the outset itself, the ld. counsel for the assessee has pointed out that this issue is squarely covered by the assessee’s own case by the judgment of Hon’ble ITAT, Kolkata in ITA No.2009-2010/Kol/2014, dated 02-06-2017 wherein it was held as follows:
“7. We have heard rival contentions of both the parties and perused and carefully considered the material on record; including the judicial pronouncements cited and placed reliance upon. At the outset, we find that issue raised by Revenue is covered in assessee's own case in
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13
ITA No. 675/Kol/2014 for A.Y. 2009-10 dated 03.02.2017, the relevant extract of order is reproduced below:- "It is observed that a similar disallowance on account of proportionate interest expenditure by applying Rule 8D(2)(ii) was made in assessee's case for A.Y. 2008-09 and the order of the ld. CIT(Appeals) deleting the said disallowance was upheld by the Tribunal vide its order dated 13.07.2016 passed in ITA No. 2773/KOL/2013 for the following reasons given in paragraphs no. 6 & 7 of its order:- "6. We have heard the rival submissions and perused the materials available on record. The facts stated hereinabove remain undisputed and hence the same are not reiterated for the sake of brevity. Admittedly the disallowance u/s 14A to the tune of Rs.92,89,825/- have been made by the ld. AO by invoking the provisions of Rule 8D(2)(ii) of the Rules. We find that the assessee company is having share capital of Rs.10.67 crores and sufficient free reserves of Rs.123.67 crores as on 31.3.2007 and Rs.137.99 crores as on 31.3.2008, but whereas the total investments as on 1.4.2007 was Rs.105.86 crores and as on 31.3.2008 was Rs.94.68 crores. We find that the ld. CIT(A) had given relief after going through the copy of the agreement of consortium of the banks and sanction letters of the banks submitted by the assessee that the loan was sanctioned for the purpose of working capital and purchase of fixed assets. We hold that the assessee has got sufficient own funds to make the investments and when that point is not in dispute, no disallowance could be made u/s 14A of the Act read with Rule 8D(2)(ii) of the Rules. Reliance in this regard is placed on the following decisions:- CIT-vs.- Reliance Utilities & Power ltd. reported in 313 ITR 340 (Bom.) Interest on borrowed capital- investments by assessee- finding that investments were from interest free funds available with assessee-borrowed capital for the purposes of business-interest deductible under Income Tax Act u/s 36(1)(iii). G.D. MetsteelPvt. Ltd. -vs.- ACIT reported in 142 TTJ 641 (Mumbai Tribunal) Held that the investments are made by the assessee's own funds and have been made in the earlier years, no disallowance u/s 14A is required to be made. The Head Note reads as under:- "Business expenditure-Disallowance under section 14A-Apportionment of expenditure- When investments are made from own funds, merely because the assessee had to subsequently borrow the funds for business use, it cannot be said that the borrowed funds have been used for the purposes of investments". CIT -vs.- HDFC Bank Ltd reported in 366 ITR 505 (Bom.) Held, dismissing the appeal, (i) that the finding of fact given by the Tribunal was that the assessee's own funds and other non- interest bearing funds were more than the investment in the tax-free securities. This factual position was not one that was disputed. Undisputedly, the assessee's capital, profit reserves, surplus and current account deposits were higher than the investment in the tax free securities. In view of this factual position, it would have to be presumed that the investment made by the assessee would be out of the interest free funds available with the assessee. 6.1. Similar views were expressed in the following decisions:- Woolcombers of India Ltd. -vs.- CIT reported in 134 ITR 219 (Cal.) East India Pharmaceuticals Works Ltd. -vs.- CIT reported in (1997) 224 ITR 627 (SC). 6.2. We find that though the decision in the case of Reliance Utilities power Ltd. was rendered in the context of allowability of interest u/s 36(1)(iii) of the Act, the analogy drawn thereon would apply with equal force for adjudicating the issue of disallowance u/s 14A of the Act. We also find that the Hon'ble Bombay High Court in the case of CIT -vs.- HDFC Bank Ltd. reported in 366 ITR 505 (Bom.) had also held the same view. 7. In view of the aforesaid facts and findings and respectfully following the judicial precedents relied upon hereinabove, we hold that the ld. CIT(A) had rightly deleted the disallowance u/s 14A of the Act in the facts and circumstances of the case to the tune of Rs.92,89,825/-. Accordingly, the ground no. 1 raised by the revenue is dismissed". As the issue involved in the year under consideration as well as all the material facts relevant thereto are similar to that of A.Y. 2008-09, we respectfully follow the decision of the Coordinate Bench rendered in A.Y. 2008-09 and uphold the impugned order of the ld. Page | 8
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13
CIT(Appeals) deleting the disallowance made by the Assessing Officer on account of proportionate interest under Rule 8D(2)(ii). Ground No.1 of the Revenue's appeal is accordingly dismissed." Respectfully following the decision of co-ordinate Bench in assessee's own case (supra) as there was no change in the facts of the case. We uphold the impugned order of the Ld. CIT(A). Hence, AO is directed accordingly. This ground of Revenue's appeal is dismissed.
We have given a careful consideration to the rival submissions and perused the materials available on record, we note that as the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench of this Tribunal (supra)and there is no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings and the ld. CIT(A) has allowed the appeal by following the decision of the Tribunal in assessee’s own case (supra). We find no reason to interfere in the said order of the ld. CIT(A). His order on this issue is hereby upheld and the ground raised by the Revenue is dismissed.
Ground No.2 raised by the Revenue relates to addition of notional interest of Rs.37,50,000/- on sticky loan.
At the outset itself, the ld. counsel for the assessee has pointed out that this issue is squarely covered by the assessee’s own case by the judgment of Hon’ble ITAT, Kolkata in ITA No.2009-2010/Kol/2014, dated 02-06-2017 wherein it was held as follows:
“11. At the outset, we find that similar issue is decided by this co-ordinate Bench of this Tribunal in assessee's own case in ITA No.684/Kol/2012 for A.Y. 2008-09 dated 08.02.2013 wherein the necessary observation in respect of the issue involved as under:- "5. The second issue in this appeal of revenue is as regards to the order of CIT(A) deleting the disallowance on account of notional interest on sticky loans. For this, revenue has raised following ground no.2: '2. That on the facts and circumstances of the case, Ld. CIT(A) erred in law in deleting the disallowance of Rs.36,25,000/- on account of notional interest on sticky loan not accounted
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13
for though the AO has added it back on the basis of note on account of 24D of the Annual report.' 6. The Ld. CIT(DR) has stated that this issue is also covered in assessee's own case by Tribunal's decision in ITA No.2248/K/2010 for AY 2006-07 but he placed reliance on assessment order. We have gone through the Tribunal's decision as well as the order of CIT(A) for this assessment year and find that this issue is covered in favour of assessee and based on that the addition is deleted. Taking a consistent view, we confirm the order of CIT(A) on this issue and revenue's ground of appeal is dismissed." In the background of the above discussions and precedent and respectfully following the decision of the co-ordinate Bench in assessee's own case (supra) we do not find any infirmity in the order of Ld. CIT(A) and accordingly we uphold the same. This ground of Revenue's appeal is dismissed.” 17. We have given a careful consideration to the rival submissions and perused the materials available on record, we note that as the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench of this Tribunal and there is no any change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings and the ld. CIT(A), who has allowed the appeal of the assessee, by following the decision of the Tribunal in assessee’s own case (supra). We find no reason to interfere in the said order of the ld. CIT(A), his order on this issue is hereby upheld and ground raised by the Revenue is dismissed.
Ground No.3 relates to amount of depreciation of Rs.16,40,567/- on plant and machinery purchased out of amount withdrawn from credit available with NABARD.
At the outset itself, the ld. counsel for the assessee has pointed out that this issue is squarely covered by the assessee’s own case by the judgment of Hon’ble ITAT, Kolkata in ITA No.1777/Kol/2010, dated 07-08-2012, wherein it was held as follows:
“10. The Revenue, during hearing, pressed an additional (fourth) ground of appeal, stating that the omission to include the same along with the original memo of appeal was only accidental; the issue raised thereby being a perennial issue in the assessee's case and, further, duly arising out the impugned order. The issue is with regard to the claim of depreciation on plant and machinery acquired by the assessee out of the withdrawals from NABARD, which stands disallowed at Rs.48,30,249/-. The same stands allowed by the ld. CIT(A), following a similar deletion by the tribunal in the assessee's own case for A.Y. 2001-02 (in ITA No.1338/Kol/2009 dated 23-09-2009). Page | 10
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13
Before us, the ld. DR would submit that no depreciation on the relevant assets could be allowed; their cost being nil in terms of u/s. 43(1) of the Act, which defines 'actual cost' to mean the cost of an asset to the assessee, as reduced by that portion thereof as met directly or indirectly by any person/s or authority. Actual cost of the relevant plant and machinery would thus only be nil, warranting no claim toward depreciation. The ld. AR, on the other hand, placed reliance on the decision by the Tribunal in the assessee's own case for A.Y. 2004-05 (in ITA No.1573/Kol/2008 date 24-10-2008 / copy on record). 12. We have heard the parties and perused the material on record. The tribunal's decision in the assessee's case for A.Y. 2004-05 is on record. The tribunal decided the same by following its earlier decision in the case of CIT v. Goodrick Group Ltd. (ITA No. 255/Kol/2004 dated 10-06-2005). The basis of its decision, as stated by the tribunal vide it's order in the assessee's case for A.Y. 2004-05 (at para 24-25 at page 6), is that though the purchase of the relevant assets is funded out of withdrawals from NABARD, depreciation is not an expenditure but only a statutory allowance. Though we observe no reference to any decision by any higher authority by either party before us; the same being the consistent view of the tribunal and, further, in the assessee's own case, respectfully following the same we confirm the deletion of the impugned disallowance of the claim of depreciation by the ld. CIT(A). We decide accordingly.”
The ld. counsel for the assessee further pointed out that Ground No.3 of the Revenue is also squarely covered by the assessee’s own case by the decision of Hon’ble Calcutta High Court in GA No.687 of 2013 wherein it was held as follows:
“Having regard to the law, we are of the view that the learned Tribunal very rightly confirmed the deletion of disallowance of the claim of the assessee to depreciation as made by the learned Commissioner of Income Tax (Appeals).”
We have given a careful consideration to the rival submissions and perused the materials available on record, we note that as the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench of this Tribunal and the decision of Hon’ble Calcutta High Court in assessee’s own case (supra) and there is no any changein facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings and the ld. CIT(A) has allowed the appeal by following the decision of the Tribunal in assessee’s own case (supra). We find no reason to interfere in the said order of the ld. CIT(A),his order on this issue is hereby upheld, and ground raised by the Revenue is dismissed.
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13
Ground No.4 raised by the assessee relates to addition of Rs.1,87,73,760/- made by the Assessing Officer at the time of computation of book profit ignoring the clear provision of clause (f) of Explanation I to section 115JB of the Act.
At the outset itself, the ld. counsel for the assessee has pointed out that the said issue is squarely covered by the assessee’s own case by the judgment of Hon’ble ITAT, Kolkata in ITA No.684/Kol/2012, dated 08-02-2013 wherein it was held as follows:
“9. The next issue in this appeal of revenue is against the order of CIT(A) deleting the addition on account of expenses u/s. 14A of the Act to ascertain book profit u/s. 115JB of the Act disregarding explanation 1(f) to section 115JB of the Act. For this, revenue has raised following ground no. 4: "4. That on the facts and circumstances of the case, Ld. CIT(A) erred in law in deleting the addition of Rs.45,28,096/- on account of the expenses u/s. 14A to ascertain book profit u/s. 115JB disregarding Explanation 1(f) to section 115JB." 10. We have heard Ld. CIT(DR) and gone through the written submission filed by assessee. Ld. CIT(DR) stated that this issue is covered by Tribunal's decision in assessee's own case for AY 2006-07 in ITA No.2248/K/2010 but he placed reliance on assessment order. We find that the assessee in its written submission has relied on sub-section (1) of section 14A of the Act, which reads as under: "From the language of sub-section (1) of section 14A, it is crystal clear that the disallowance u/s. 14A is required to be made while computing the total income under chapter IV of the Income Tax Act, 1961 whereas the computation of book profit is under chapter XIIB and hence section 14A has no implication in the computation of book profit u/s. 115JB." 11. We find from the written submission of assessee wherein it has relied on the decision of Hon'ble Madras High Court in the case of CIT Vs. KovaiMaruthi Papers and Board Pvt. Ltd. 294 ITR 57. We find that the Ld. CIT(DR) stated that this issue is covered in favour of assessee by Tribunal's decision in assessee's own case for AY 2006-07 but he placed reliance on assessment order. We confirm the order of CIT(A) as the same is covered in assessee's own case by Tribunal's decision and this issue of revenue's appeal is dismissed.”
We have given a careful consideration to the rival submissions and perused the materials available on record, we note that as the issue is squarely covered in favour of the assessee by the decision of the Coordinate Page | 12
M/s. Jay Shree Tea & Industries Ltd. ITA Nos.736 & 737/Kol/2016 Assessment Years: 2009-10 & 2012-13
Bench of this Tribunal (supra) and there is no any change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings and the ld. CIT(A) has allowed the appeal of the assessee by following the decision of the Tribunal in assessee’s own case (supra). We find no reason to interfere in the said order of the ld. CIT(A), and is hereby upheld. Therefore, the appeal filed by the Revenue is dismissed.
In the result, the appeal filed by the Revenue is dismissed.
Order is pronounced in the open court on 23.05.2018.
Sd/- Sd/- (A. T. VARKEY) (A. L. SAINI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; �दनांक Dated /05/2018 [RS,SPS] आदेशक���त�ल�पअ�े�षत/Copy of the Order forwarded to : अपीलाथ�/ The Appellant- JCIT (OSD), Cir-4(1), Kolkata 1. ��यथ�/ The Respondent–M/s. Jay Shree Tea & Industries Ltd. 2. 3. आयकरआयु�त(अपील) / The CIT(A), आयकरआयु�त/ CIT 4. �वभागीय��त�न�ध, आयकरअपील�यअ�धकरण, कोलकाता/ DR, ITAT, Kolkata 5. गाड�फाईल / Guard file. 6. स�या�पत��त