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Income Tax Appellate Tribunal, KOLKATA BENCH “B” KOLKATA
Before: Hon’ble Shri Waseem Ahmed & Shri S.S.Viswanethra Ravi
आदेश /O R D E R
Per Waseem Ahmed, AM
ITA No.2768/Kol/2013 & 2576/Kol/2013 M/s. Keventer Agro Ltd. A.Y.2010-11 2
The Revenue as well as assessee are in cross-appeal which are directed against the order of Commissioner of Income Tax (Appeals)-IV, Kolkata dated 23.08.2013. Assessment was framed by Addl.C.I.T., range-4, Kolkata u/s 143(3) of the Income tax Act, 1961 (hereinafter referred to as ‘the Act ‘) vide his order dated 17.12.2012 for assessment year 2010-11. 2. Both the appeal is heard together and are being disposed of by way of consolidate order for the sake of convenience. First we take up Revenue’s appeal. ITA No.2768/Kol/2013 (Revenue’s Appeal) : 2. The Revenue has raised the following grounds of appeal: 1)That on the facts and circumstances of the case, Ld. CIT(A)-IV erred in law in directing the AO to delete the addition of Rs. 2,52,74,260/- on account of remission of Sales Tax since The Supreme Court in the case of Sahaney Steel & Press Works Ltd. - vs- CIT , pronounced that the remission of sales tax IS a revenue receipt. Moreover, the salient features of the scheme formulated by the West Bengal Govt. was that this incentives provided was not available unless and until production has commenced. The scheme was not to make any payment directly or indirectly for the setting up of industries and instead comes into force only after production commences. So it is nothing but operational subsidies or supplementary trade receipts. As per the scheme, public money collected by the assessee by way of sales tax was not to be deposited to the Sales Tax Dept. but to be retained by it for running the business smoothly. Hence it is a clear case of cessation of liability and therefore be treated as income as per the provisions of section 40(1)(a) of the IT Act.
2) That the appellant craves for leave to add, delete or modify any grounds of appeal before or at the time of hearing.”
The solitary issue raised by the Revenue in this appeal is that the ld. CIT(A) erred in deleting the addition made by the Assessing Officer for Rs. 2,52,74,260/- on account of remission of sales tax liability. 4. Briefly stated facts are that the assessee is a limited company and engaged in the manufacturing business of fruit and other products. The assessee was in receipt of Rs. 2,52,74,260/- on account of remission of sales tax liability during the year. The assessee treated the amount of remission of sales tax liability as capital receipt in nature and therefore the same was not offered to tax in the computation of income. 5. However, the AO during the assessment proceedings observed certain facts as detailed under:-
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i) The assessee was entitled for remission of 100% sales tax liability in respect of the sale of finished goods. ii) The assessee was eligible for sales tax incentive only after the commencement of production. iii) The sales tax incentive was not connected directly or indirectly for setting up of the industries. 6. In view of the above, the AO was of the opinion that the subsidy received by the assessee is in the nature of operational/trade receipts. Thus the provisions of section of section 41(1) of the Act are attracted. Accordingly the assessee called upon the assessee to explain why the sales tax incentive should not be charged to tax. In compliance thereto the assessee submitted that similar receipt was treated as capital receipt by the ld. CIT(A) for A.Y. 2005-06 and therefore it is not taxable under the provision of Section 41(1) of the Act. However, the AO disregarded the contention of the assessee by observing that the revenue against the ld. CIT(A)’s order for A.Y.2005-06 has preferred an appeal before the Hon’ble ITAT which is pending for adjudication. Accordingly the AO treated the amount of sales tax incentive for Rs. 2,52,74,260/- as income u/s 41(1) of the Act and accordingly added to the total income of the assessee.
Aggrieved, assessee preferred an appeal before ld. CIT(A). The assessee before ld. CIT(A) submitted that the sales tax subsidy was given by the Government of West Bengal in pursuance to its scheme “West Bengal Incentive Scheme 1999” for the purpose of economic development in certain areas. Thus the assessee expanded its project of fruit juice in the state of West Bengal at Barasat. The assessee also submitted that similar incentive was treated as capital receipt in the A.Ys. 2003-04, 2005-06 and 2009-10. The ld. CIT(A) after considering the submissions of the assessee allowed relief by observing that the addition was deleted by his predecessor in the own case of the assessee in the earlier years. The Revenue, being aggrieved is in appeal before us. 8. Before us both the parties relied on the orders of the authorities below as favourable to them although Ld. AR for the assessee also filed paper book which is running pages 1 to 179. 9. We have heard the rival contentions and perused the materials available on record. In the instant case the assessee has received a sum of Rs. 2,52,74,260/- for the remission of sales tax liability in pursuance to the West Bengal Incentive Scheme 1999. The Government of West Bengal provided the incentive to the assessee with a view to promote industries located in the
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state of West Bengal. The amount of sales tax remission was treated as revenue receipt in the hands of the assessee by the AO. However, the view taken by the AO was reversed by the ld. CIT(A). 9.1 At the outset, we find that similar issue came up before the Hon’ble ITAT in the own cases of the assessee in AYs. 2000-01, 2003-04 and 2005-06 where the issue was decided in favour of the assessee in ITA Nos. 1663 to 1665/Kol/2011 vide order dated 30.06.2014. The relevant extract of the order is reproduced below :- “26. We have heard rival submissions and gone through facts and circumstances of the case. We find that the CIT(A) has considered the legal aspect as to whether the sales tax remission was a revenue or capital receipt in the hands of the assessee. He found that the sales tax remission given under West Bengal Incentive Scheme 1993 and 1999 was not for assisting the assessee in carrying out its business operation but incurred the promotion of industries in the State of West Bengal and consequently, following the decision of Hon'ble Supreme Court in the case of Sahaney Steel & Press Works Ltd. Vs. CIT 228 ITR 253 holding the sales tax remission as capital receipt. Ld. counsel also drew our attention to the fact that the sales tax remission under West Bengal Incentive Scheme, 1993and 1999 was revenue or capital has already been examined and decided by ITA T, Kolkata Bench in the following appeals:
“1. In the case of ITO, Ward-1(3) Ko/ Vs. M/s. Duro Plast India Pvt. Ltd. In ITA No. 1983, 1984, 1985/Kol/2008 dated 16.01.2009 for Asstt. Years 1999-2000 to 2001-02 . 2. In the case of DCIT, Cir.-12, Kol Vs. M/s. Teesta Agro Industries Ltd. in ITA No. 1237/Ko1/2010, lTANo. I053/Ko/12010 & ITA No. 1753/Ko/12010 dated 07.01.2011 for Asstt. Years 2003-04, 2006-07 & 2007-08 respectively.”
We find that the West Bengal Incentive Scheme 1993 and 1999 categorically encouraged the promotion of industries in the State of West Bengal and in such circumstances the issue is clearly covered by the decision of Hon'ble Supreme Court in the case of Sahaney Steel & Press Works Ltd., supra. The issue is also covered by the Tribunal's decision as noted above. Accordingly, we confirm the order of. CIT(A) and this issue of revenue's appeals for both the years is dismissed.”
As the issue before us is identical to the issue raised in the aforesaid appeals in the own case of the assessee and the issue has been decided by the Hon’ble ITAT in favour of assessee. Respectfully following the same we do not find any reason to interfere in the order of the ld. CIT(A). Hence this ground of appeal of the Revenue is dismissed. ITA No.2576/Kol/2013 (Assessee’s appeal): 10. The assessee has raised the following grounds of appeal : “1. The orders passed by the lower authorities are arbitrary, erroneous, without proper reasons, invalid and bad in law.
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On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the disallowances of the amounts of Rs.21,29,878/- and Rs. 2,00,741/- under clauses (ii) and (iii) respectively of sub-rule (2) of Rule 8D of the Income Tax Rules, 1962, in terms of the provisions of Section 14A of the Income-tax Act, 1961, over and above the amount of Rs. 1,19,809/- already offered by the appellant for addition under clause (i) of sub-rule (2) of Rule 8D, towards alleged expenditure for earning exempt income of the nature of dividend, and in adding back the same to the total income of the appellant.
The appellant craves leave to amend, alter, modify, substitute, add to, abridge and/ or rescind any or all of the above grounds.”
The solitary issue raised by the assessee in this appeal is that the ld. CIT(A) erred in confirming the order of AO by sustaining the disallowance of Rs. 21,29,878/- and Rs.2,00,741/- under Clause (ii) and (iii) respectively under Rule 8D r.w.s. 14A of the Act. 12. The assessee in the year under consideration has shown dividend income of Rs.74,08,283/- which was exempted u/s 10(34) of the Act. The assessee in its ITR has offered the disallowance of Rs. 1,19,809/- as expenditure directly connected with the exempted income. However, the AO observed that the assessee has claimed interest expenditure of Rs.5,19,76,692/- in its financial statement during the year. But no disallowance of interest has been made by the assessee. Accordingly the AO called upon the assessee for seeking clarification of making the disallowance of the expenses in accordance with the provision of section 14A r.w.r. 8D of IT Rules. However, the assessee failed to provide satisfactory reply to the AO during the assessment proceedings. Therefore the AO invoked the provision of section 14A r.w.r. 8D and made the following disallowances : S.No. Particulars Amount 1. Direct Expenses Rs.1,19,809(already disallowed by the assessee) 2. Interest Expenses Rs.21,29,878/- 3. Administrative Expenses Rs.2,00,741/- The AO disallowed the above expenses and added to the total income of the assessee. 13. Aggrieved, assessee preferred an appeal before ld. CIT(A). The assessee before the ld. CIT(A) submitted that the investment was made out of its own fund and no borrowed fund was utilized in the investment in shares. Therefore there is no question of making any disallowance of interest expenses. The assessee also submitted that the investment shown in the books of account are brought forward from the earlier years. As such the amount borrowed during the year for Rs.10 crores has not been invested in the impugned investments. However, the ld. CIT(A)
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disregarded the contention of the assessee and confirmed the order of AO by observing as under :- “5.2 I have examined the submission of the appellant and I have also perused the assessment order. At Schedule -14 of the Accounts of the appellant Dividend on Long-term Trade Investment is shown at Rs.73,66,888/-and Dividend on current investment is shown at Rs.41,395/- together totaling Rs.74,08,263/-. At Schedule - 18 Financial Expenses have been shown at Rs.5,90,76,692/-, which includes Interest on Fixed Loans (Rs.3,80,71/088/-), other interest (Rs.2,23,67,942/-) and Finance charges (Rs.33,27,519/-). However, investment has actually declined from Rs.5,02,58,250/- during the earlier year to Rs.3,00,58,226/- during the previous year. According to the A.R. of the appellant, against this background a disallowance of Rs.1,19,809/- relatable to Salary expenditure in relation to earning of dividend income is sufficient. In this context, I will refer to Schedule - 17 which is cumulative of manufacturing, administrative, selling and distribution expenses which together amounts to Rs.29,91,54,805/-. Additionally, at Schedule-16 under the head Personnel Expenses an amount of Rs.9,89,07,250/- has been debited. These actually reflect that there are significant Personnel and Administrative Expenses a part of which are relatable expenses although the A.R. of the appellant has not explained as to why only expenses pertaining to salary are relatable. Managerial decisions when taken are to be duly supported and executed by supporting staff at lower levels without which execution is not possible. I am, therefore, not in agreement with the views of the A.R. of the appellant that even though there are significant administrative and personnel expenses incurred by the appellant, the only relatable indirect expenses is on account of salary for which disallowance of Rs.1,19,809/- is sufficient. The A.R. of the appellant has also stated that - during the year the increase in investment was only to the tune of Rs.89,99,976/- and the investment sold for Rs.2,92,00,000/- was sufficient to take care of this investment. It was no where established before me that investment made was out of investment sold. During the year, significant amount of loans had been taken by the appellant and such loans could also have been utilised and investments could have come from mixed funds. Under these circumstances, I am of the view that the Jurisdictional High Court judgement in the case of Dhanuka & Sons vs. CIT 339 HR 319 becomes relevant :- "9.In the case before us, there is no dispute that part of the income of the assessee from its business is from dividend which is exempt from tax whereas the assessee was unable to produce any material before the authorities below showing the source from which such shares were acquired.
In our opinion, the mere fact that those shares were old ones and not acquired recently is immaterial. It is for the assessee to show the source of acquisition of those shares by production of materials that those were acquired from the funds available in the hands of the assessee at the relevant point of time without taking benefit of any loan. If those shares were purchased from the amount taken in loan even for instance/ five or ten years ago/ it is for the assessee to show by the production of documentary evidence that such loaned amount had already been paid back and for the relevant assessment year; no interest is payable by the assessee for acquiring those old shares. In the absence of any such materials placed by the assessee/ in our opinion/ the authorities below rightly held that proportionate amount should be disallowed having regard to the total income and the
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income from the exempt source. In the absence of any material disclosing the source of acquisition of shares which is within the special knowledge of the assessee, the assessing authority took a most reasonable approach in assessment. There is no presumption- provided in the Income tax Act,. 1961 that if the assessee has Interest free loans, his own capital as share capital, reserves and surpluses and interest bearing loans and is earning exempt and taxable income then it should be presumed that the exempt income is out of its own funds. Rule 8D(2)(ii) of the I.T. Rules, 1962 provides any expenditure by way of interest which is not directly attributable particular income or receipt then the interest has to be calculated as per formula provided therein. Now, the law has provided a specific method of calculation in Rule 8D(2)(ii) of I.T. Rules, 1961 relating to interest expenditure on exempted income from A.Y.2008-09 and it is applicable directly in the case of the assessee. I am, therefore, of the view that the A.O. has correctly invoked section 14A read with Rule 8D(2)(ii) and 8D(2)(iii) of the I.T. Rules, 1962. Disallowance made by the A.O. for Rs.24,50,428/- is confirmed, subject to deduction of the amount already disallowed by the appellant in its return of income.
Being aggrieved by the order of ld. CIT(A) the assessee is in second appeal before us. 14. The ld. AR filed paper book which is running pages from 1 to 60 and submitted before us that the issue regarding utilization of loan funds was examined in detail and decided by this Hon'ble Tribunal in the case of REI Agro Ltd Kolkata vs. OCIT, Central Circle-XXVII, Kol, ITA No. 1331/Kol/2011 and DCIT, Central Circle-XXVII, Kol vs. REI Agro Ltd., Kolkata, ITA No. 1423/Kol/2011 (copy enclosed) which was also affirmed by the Hon'ble Calcutta High Court vide Order dated 09.04.2014 (copy enclosed) in the case of CIT vs. REI Agro Ltd., GA No. 3581 of 2013. The following was held by this Hon'ble Tribunal which was subsequently affirmed by the Hon'ble Calcutta High Court: "Thus, not all investments become the subject-matter of consideration when computing disallowance under section 14A read with rule BD. The disallowance under section 14A read with rule 8D is to be in relation to the income which does not form part of the total income and this can be done only by taking into consideration the investment which has given rise to this income which does not form part of the total income. Under the circumstances, the computation of the disallowance under section 14A read with rule 8D(2)(iii), which is issue in the assessee's appeal, is restored to the file of the AO for recomputation in line with the direction given above. No disallowance under section 14A read with rule 8D(2)(i) and (ii) can be made in this case ."
From the above proposition, it thus stands evident that for the purpose of computing disallowance u/s 14A of Income Tax Act, 1961 read with Rule 8D(2) of the Income Tax Rules, 1962 only the investments giving rise to exempt income should be considered.
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In the above backdrop, the assessee would like to submit that during the relevant assessment year, it had earned divided income of Rs.74,08,283/-. The dividend of Rs.74,08,283/- was earned by the assessee on the following scripts: I Particulars Amount (in Rs.) Metro Dairy Limited 73,66,888 Reliance Medium Term Fund 41,395 TOTAL 74,08,283
Having submitted the above the Ld. AR drew our attention to invite to schedule 6 of its Balance Sheet, enclosed at page 6A of the paper book. A perusal of the same would make it clear that the assessee's investment in shares of Metro Dairy Limited (generating dividend of Rs.73,66,888/-) stood at a figure of Rs.2,10,48,250- as on 31/03/2010 (i.e. A.Y. 2010-11). Further, the assessee would like to submit that the assessee's investment in shares of Metro Dairy Limited stood at a figure of Rs. 2,10,48,250- as on 31-03-2009 as well (i.e. A. Y. 2009-10) thus establishing that the shares of Metro Dairy Limited were not purchased by the assessee during the relevant Assessment Year. Moreover, the shares of Metro Dairy Limited were acquired by the assessee for controlling/strategic purposes and not for the purpose of earning dividend since Metro Dairy Limited is a group company of the assessee which stands reflected at page 29 of the paper book. Dividend earned from investment in such shares was thus merely incidental. Therefore the investments made by the assessee in the shares of Metro Dairy Ltd. cannot be considered while invoking section 14A of the Income Tax Act, 1961 read with Rule 8D(2) of the Income Tax Rules, 1962.
14.1 The ld. AR further submitted that the amount of share capital and free reserve was sufficient enough to make the investment in the shares. Thus no disallowance can be made on account of interest expenses. The ld. AR in this connection relied on the judgment of the Hon’ble Bombay High Court in the case of CIT Reliance Utilities & Power Ltd reported in 313 ITR 340 (Bom). The relevant extract of the order is reproduced below :- “The principle therefore would be that if there are funds available both interest-free and overdraft and/or loans taken, then a presumption would arise that investments would be out of the interest-free fund generated or available with the company, if the interest-free funds were
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sufficient to meet the investments. In this case this presumption is established considering the finding of fact both by the CIT(A) and Tribunal” Similarly the ld. AR also relied on the order of the Hon’ble Bombay High Court in the case of CIT vs HDFC Bank Ltd reported in 366 ITR 505 (Bom). The relevant extract of the order is reproduced below :- “Where assessee's capital, profit reserves, surplus and current account deposits were higher than the investment in tax-free securities, it would have to be presumed that investment made by the Assessee would be out of the interest-free funds available with Assessee and no disallowance was warranted u/s 14A.”
On the contrary, the ld. DR heavily relied on the order of the authorities below. 15. We have heard rival contentions of both the parties and perused the material available on record. From the foregoing discussion, we find that the assessee has earned dividend income for the Rs. 74,08,283.00 from the following companies : KEVENTER AGRO LIMITED Asst. Year: 2010-11 Details of dividend received for the year ended 31.03.2010
Particulars Amount (in) Metro diary limited 73,66,888 (Rs.3.50 per equity share of Rs.10 each) Reliance Mutual Fund 41,395 74,08,283
The assessee against the above income has made the disallowances of Rs.1,19,809.00 which is the representing the disallowances of salary expenses. However, the AO being dissatisfied with the disallowances made by the assessee, invoked the provisions of rule 8D read with section 14A of the Act and made the disallowances as detailed under : S.No. Particulars Amount 1. Direct Expenses Rs.1,19,809(already disallowed by the assessee) 2. Interest Expenses Rs.21,29,878/- 3. Administrative Expenses Rs.2,00,741/- The view taken by the AO was subsequently confirmed by the ld. CIT(A). However it is settled law that the disallowance under section 14A read with rule 8D of the IT Rules, 1962 is to be made in relation to the income which does not form part of the total income
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and this can be done only by taking into consideration the investment which has given rise to this income which does not form part of the total income. In holding so we find guidance & support from the order of Coordinate Bench of this Tribunal in the case of REI Agro Ltd. v. Dy. CIT [2013] 35 taxmann.com 404/144 ITD 141 (Kol.) which was also affirmed by the Hon'ble Calcutta High Court vide Order dated 09.04.2014 in GA No. 3581 of 2013, wherein it was held that the disallowance as per Rule 8D shall be made by taking into consideration only those shares, which have yielded dividend income in the year under consideration. Therefore we direct the AO to make the disallowance under rule 8D after considering the investments which have yielded the dividend income during the year.
It is undisputed fact that the owned fund of the assessee is far more than the investment made in the shares which have yielded in the dividend income. The relevant extract of the balance sheet is extracted below:- KEVENTER AGRO LIMITED Balance sheet as at March, 21,2010 1. SOURCES OF FUNDS A. Shareholders funds Share capital 1 79,996,550 75,840,690 Reserves and surplus 2 342,150420 212,311,677 B. Investments 6 30,058.226 50,258.250
The investment in the share which have yielded dividend income is only for Rs. 2,10,48,250/- only as evident from the balance sheet of the assessee. The investment in the Reliance Medium term fund was sold out during the year under consideration and therefore the same is not reflecting in the balance sheet. The relevant extract of the Investment schedule 6 is placed on page 12 of the paper book.
In view of above an inference can be drawn that the investment in the shares has been made out of the owned fund of the assessee in terms of the principal laid down on the judgments of Hon’ble Bombay High Court in the case of CIT vs HDFC Bank Ltd reported in 366 ITR 505 (Bom) and CIT vs. Reliance Utilities & Power Ltd reported in 313 ITR 340 (Bom) as discussed above.
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However we find form the judgment of Hon’ble Calcutta High Court in the case of Dhanuka & sons reported in 339 ITR 319 that it is the duty of the assessee to produce the source of the investment. The relevant extract reads as under : “It was for the assessee to show the source of acquisition of those shares by production of materials that those shares were acquired from the funds available in the hands of the assessee at the relevant point of time without taking benefit of any loan. If those shares were purchased from the amount taken in loan, even for instance, five or ten years ago, it was for the assessee to show by the production of documentary evidence that such loaned amount had already been paid back and for the relevant assessment year, no interest was payable by the assessee for acquiring those old shares. In the absence of any such material placed by the assessee, the authorities below rightly held that proportionate amount should be disallowed having regard to the total income and the income from exempt source. In the absence of any material disclosing the source of acquisition of shares which was within the special knowledge of the assessee, the assessing authority took a most reasonable approach in assessment.”
Thus, in view of Jurisdictional High Court judgment we hold that no presumption can be drawn for the impugned investment that these were made out of the owned fund. The assessee has to justify on the basis of documentary evidences that no borrowed fund has been used in the investments. However, we further find that the investment was made in the joint venture company i.e. Metro Dairy Company as evident from the Investment schedule 6 placed on page 12 of the paper book. There was joint venture between the Metro Dairy Limited and Government of West Bengal and the assessee was holding the shares in the joint venture company. The assessee earned the dividend income from the joint venture company besides the mutual fund. Thus it can be inferred that the investment in Joint Venture Company was strategic investment and dividend income is incidental to it. The Jurisdictional Hon’ble Tribunal in the case of Electrosteel Casting Limited Vs. DCIT reported in 58 ITR (Trib) 5 has held that no disallowance shall be made against the dividend income if arises from the strategic investment. The relevant extract of the order reads as under:- “141. We have considered the aforesaid submissions of the learned counsel for the assessee and are of the view that in the light of the decisions referred to above, in computing the disallowance under section 14A of the Act read with rule 8D(2)(ii) and (iii) of the Rules, the Assessing Officer while adopting the average value of investments has to consider only those investments which yielded dividend income during the previous year. Similarly, in computing the disallowance under section 14A of the Act read with rule 8D(2)(ii) and (iii) of the Rules, the Assessing Officer while adopting the average value of investments has to exclude the investments which are strategic investments.”
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Thus the strategic investments need to be excluded for the purpose of the disallowance under section 14A read with rule 8D of Income Tax Rules. The ld. DR before us has not brought anything contrary to the argument of ld. AR that the impugned investments are not strategic investments. For remaining dividend income of Rs. 41,395.00 earned on investment in Reliance Medium Term fund, it was observed that impugned investment was purchased and sold during the year. Therefore the same is not appearing in the balance sheet either in the opening balance or closing balances. Thus the same cannot be considered under rule 8D for the purpose of the disallowance. Thus in the above proposition and respectfully following the order of this Tribunal in the case of Electrosteel Casting Limited (supra) we reverse the order of lower authorities. Hence, this ground of appeal of the assessee is allowed. 16. In the result, assessee’s appeal is allowed. 17. In combine result,Revenue’s appeal stands dismissed and that of assessee is allowed. Order pronounced in the Court on 18/10/2017. Sd/- Sd/- [S.S.Viswanethra Ravi] [Shri Wassem Ahmed] Judicial Member Accountant Member Dated : 18 /10/2017 {RG SPS} Copy of the order forwarded to: 1. Assessee – M/s. Keventer Agro Ltd. Sagara Estate, 4th Floor, 2, Clive Ghat St. Kolkata-001 2. Respondent –D.C.I.T., Circle-4/ACIT, Range-4, P-7, Chowringhee Sq. Kolkata-69 3. CIT(A)- IV, Kolkata. 4. CIT – II , Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.
By Order
Senior Private Secretary Head of Office/ D.D.O., ITAT, Kolkata Benches