DCIT, CIR-10(1), KOLKATA, KOLKATA vs. VIVEK KR. KATHODIA, KOLKATA

Appearances by: None, appeared on behalf of the assessee. Shri G.Mallikarjuna, CIT, DR appearing on behalf of the Revenue. Date of concluding the hearing : December 7th, 2017 Date of pronouncing the order : December 21st , 2017

O R D E R Per J. Sudhakar Reddy :-

This appeal filed by the revenue is directed against the order of the ld. Commissioner of Income Tax (Appeals)-20, Kolkata, (hereinafter the ‘ld. CIT (A)’), passed u/s 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 12/01/2015, for the Assessment Year 2009-10, on the following grounds:-

“1. That on the facts and in the circumstances of the case and in law Ld. CIT(A) erred in deleting the addition of Rs.14,16,442/- made u/s.14A of the Act, without considering the fact that the investment were made out of interest bearing borrowed fund

2. That on the facts and in the circumstances of the case and in law Ld. CIT(A) erred in deleting the addition of Rs.6,08,43,906/- made on account of 2 Assessment Year: 2009-10 Vivek Kumar Kathodia unexplained cash by not considering the report of Forensic Department and relying on judgement of ITAT in the case of the assessee for earlier years, without taking into account that the department is in appeal before the Hon'ble High Court against the said order of ITAT.

3. After hearing the ld. D/R, we find that on the issue of disallowance u/s 14A of the Act, the ld. CIT(A) has held that the assessee has not used borrowed funds for the purpose of investments. He gave a factual finding that the investments in shares were made out of the assessee’s own funds. The assessee had opened a capital of Rs.26.45 Crores and closing stock capital of Rs.25.92 Crores and whereas the investment in share was Rs.14.76 Crores. This factual finding of the ld. First Appellate Authority, could not be controverted before us by the ld. D/R. The contention is that, it should be set aside to the Assessing Officer for verification. We do not find any merit in this case as the factual findings of the ld. First Appellate Authority, has not been controverted before us. The decision of the ld. CIT(A) is in line with the decision of the judgement of the Hon’ble Bombay High Court in the case of CIT .v. HDFC Bank Ltd.(2014) 366 ITR 505(Bom.) (HC). Thus, we uphold this finding of the ld. CIT(A) and dismiss this ground of the revenue.

4.1. Under these facts and circumstances, we have no hesitation in following the decision of the co-ordinate Bench of the Tribunal in the assessee’s own case on the

Kolkata, the 21st day of December, 2017. Sd/- Sd/- [Aby T. Varkey] [J. Sudhakar Reddy] Judicial Member Accountant Member Dated : 21.12.2017 {SC SPS} Copy of the order forwarded to: 1. Vivek Kumar Kathodia 6/D, Nelly Sengupta Sarani (Formerly known as Lindsay Street) Kolkata – 700 087 2. D.C.I.T., Circle-10(1), Kolkata D.C.I.T. Circle-10(1), P-7, Chowringhee Square 3rd Floor Kolkata – 700 069 3. CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata.