Income Tax Appellate Tribunal - Kolkata
Bulkau Timbers Pvt. Ltd., Kolkata vs Ito, Ward-8(1), Kolkata, Kolkata on 25 September, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL "A", BENCH KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM आयकरअपीलसं./ITA No.2261/Kol/2014 ( नधारणवष / Assessment Year:2010-11) Balkau Timbers Pvt. Ltd. Vs. ITO, Ward-8(1), Kolkata EN-42, Salt Lake, Sector-5, Kolkata-700091 थायीले खासं . /जीआइआरसं . /PAN/GIR No.: AABCB 2648 B (Assessee) .. (Revenue) Assessee by : Shri Anil Kumar Dugar, LLB & Shri Rajorshi Chatterjee, Advocate Respondent by : Shri Robin Chowdhury, CIT DR सुनवाईक तार ख/ Date of Hearing : 24/07/2019 घोषणाक तार ख/Date of Pronouncement : 25/09/2019 आदे श / O R D E R Per Dr. A. L. Saini:
The captioned appeal filed by the Assessee, pertaining to assessment year 2010-11, is directed against the order passed by the Commissioner of Income Tax (Appeal)-VIII, Kolkata, which in turn arises out of an assessment order passed by the Assessing Officer u/s 147 / 143(3) of the Income Tax Act, 1961 (in short the 'Act') dated 30/03/2013.
2. The grounds of appeal raised by the assessee are as follows:
1. For that and without prejudice to the legal position, the ld. Commissioner of Income Tax (Appeals) erred in law and also in fact in allowing the entire receipt of Rs. 23,87,620/- as income from House Property as considered by the ld.
Assessing Officer, ignoring the facts that the money was received through a judicial order and the property was forcibly and illegally occupied and the Balkau Timbers Pvt. Ltd.
ITA No.2261/Kol/2014Assessment Year:2010-11 relationship of landlord / lessor and tenant / lessee was not at all existing at the relevant time and thereby computing Rs. 16,71,334/- as such income for the said assessment year, which should be considered as "Damages" and for that it is a "Mesne Profit" and should be considered as "Capital Receipts", not liable for taxation as legally claimed by the assessee-company.
2. For that the ld. Commissioner of Income Tax (Appeals) was also wrong in holding the amount of Rs. 40,63,026/- as income from other sources instead of capital receipts as wrongly considered by the ld. Assessing Officer, which was strongly objected by the assessee-company.
3. For that the ld. Commissioner of Income Tax (Appeals) also has not considered at all the Income Tax return of the company in course of the Assessment and is absolutely silent about the loss clamed by the assessee- company and for that the assessment is bad in law and liable to be cancelled. Besides that the ld. Appellate Authority has also not properly considered the order of the Tribunal, special Bench- Mumbai in the case of M/s Narang Overseas Pvt. Ltd. vs. CIT, Central-36,(AIT-2008-67ITAT) and also the Calcutta High Court decision of Hon'ble Justice Mr. A.K. Sengupta in the case of CIT vs. Smt. Lila Ghosh on 18th January, 1993 (IT Ref. No. 32 of 1991) 18th January, 1993 (1993) 133 CTR (Cal): (1993) 71 TAXMAN 72) and also one Tribunal Order of Delhi Bench dated 26.04.2012 (Late Sandeep Goal) New Delhi vs. Department of Income Tax. The legal case cited by the ld. Commissioner of Income Tax (Appeals) are very much distinguishable for the facts and circumstances of the instant issues.
4. For that Assessee-company is also asking for the consequential relief on account of interest charged in course of assessment.
5. For that the assessee- company reserves its right to place any additional ground/s or to modify any of the grounds mentioned hereinbefore at the time or before hearing of this appeal.
3. Brief facts qua the issue are that the assessee filed its return of income for A.Y. 2010-11 on 11.10.2010 declaring total income of Rs. NIL. The assessee's return of income was processed u/s 143(1) of the Act. Subsequently, on perusal of the return of income, which was noticed by the Assessing Officer that the assessee has claimed refund of Rs. 12,90,129/- against TDS of the same amount. But the assessee had not disclosed any gross receipt corresponding to the TDS of Rs. 12,90,129/-Being this sufficient reason to believe that the income has escaped assessment, the case has been reopened u/s 147 of the Act. The Assessing Officer noticed that the assessee owned property at A-1/26, Sadarjung Enclave, new Delhi-10029 by virtue of acquisition of leasehold right from 1st November, 1993 which was given on sub-lessee to Punjab State Industrial Development Corporation (PSIDC) in the year 1993 (01.11.1993) and the sub-lease agreement Page | 2 Balkau Timbers Pvt. Ltd.
ITA No.2261/Kol/2014Assessment Year:2010-11 expired on 31.10.1996. The sub-lesee PSIDC did not vacate the premises after determination of the lease. Disputes were then referred to Arbitrator who passed arbitration Award dated 28.04.1997. On application by the assessee, Executing Court issued attachment notice warrant on 05.08.1998. In its applications before the Arbitrator, the Claimant wanted "The Ld. Arbitrator to hold that the Respondents are liable to vacate the entire leased premises by 31st October, 1996 and the relationship of Landlord and Tenant has ended by 31st October, 1996." The claimant also wanted "On failure to vacate and handover possession of the leased premises by 31st October, 1996, the claimants in terms of clause 2(g) as per lease agreement be awarded damages equivalent to the unpaid arrears of the fair gross monthly market rate of rent as ascertained by the valuer at the beginning of each calendar year or part thereof?
4. The Arbitrator passed the order on 28/04/1999 and in the said order the Arbitrator in consideration of the fact of the case directed the respondent (lesee) to pay damages at the rate of Rs. 1,07,020/- per month equivalent to fare gross monthly market rate of rent as determined by the approved valuer and as claimed by the assessee (Lessor) before the Arbitrator. The Arbitrator further directed to pay simple interest at the rate of 24% per annum on the amount payable to the assessee, which was subsequently reduced to 18% per annum. As a result the assessee received the following amount during the financial year 2009-10 from PSIDC:
Shortfall of damages Rs. 23,87,620/-
(After deducting the rent paid by PSIDC for the period Nov, 96 to May 99 to respect of unauthorized occupation Of the property by PSIDC) Interest received (Rs. 15,96,239/- + Rs. 24,66,787/-) Rs. 40,63,026/-
Total receivable Rs. 64,50,646/-
The same amount of Rs. 64,50,646/- was directly accounted for in the Balance sheet as Reserves & Surplus without routing through profit and loss account by the assessee company.
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5. On being asked, the assessee claimed the amount in question as capital receipts, not chargeable to Tax. However from the above facts, it is clear that
i) The assessee is the owner of the property given on sub-lease to PSIDC by virtue of provisions u/s 27(iiB) read with section 269UA(F) of the Act.
ii) The property consists of a building or land appurtenant thereto.
iii) The property was not utilized for the purpose of any business or profession carried on by the assessee.
iv) The property was given on rent to PSIDC and regularly accepted rent determined at the time of lease, including for the unauthorized period of occupation.
v) The assessee wanted damages equivalent to fare gross monthly market rate of rent as determined by the approved valuer.
vi) The award was, in fact, not granted for physical damage of the property, instead it was granted for the occupation and utilization by PSIDC in its favour.
6. Thereafter, the Assessing Officer analyzed the provisions of section 22 and 25AA as follows:
Provision of section 22 says that the Income from house property is assessable for the annual value of the property and the Annual value determined as per provision of section 23 as follows:
a) The sum for which the property might reasonably be expected to let from year to year; or
b) Where the property or any part of the property is let and the actual rent received or receivable by the owner in respect thereof is in excess of the sum referred to in clause (a), the amount so received or receivable; or
c) Where the property or any part of the property is let and was vacant during the whole or any part of the previous year and owing to such vacancy the actual rent received or receivable by the owner in respect thereof is less than the sum referred to in clause (a), the amount so receivable. Thus, it is very clear that the amount awarded for occupation of the property was Page | 4 Balkau Timbers Pvt. Ltd.ITA No.2261/Kol/2014
Assessment Year:2010-11 nothing but the amount which the property may fetch at that period, if it would let out in that locality.
Further Section 25AA of the Act says on unrealized rent received subsequently to be charged to income tax as follows:
Section 25AA: Where the assessee cannot realize rent from a property let to a tenant and subsequently the assessee has realized any amount in respect of such rent, the amount so realized shall be deemed to be income chargeable under the head "income from house property' and accordingly charged to income tax as the income of that previous year in which such rent is realized whether or not the assessee is the owner of that property in that previous year.
7. Having gone through the provisions of the Act, the Assessing Officer was of the view that all the conditions laid out at Part "C" of Chapter-IV of the Act have been fulfilled and the amount of Rs. 1,07,020/- awarded in favour of the assessee was nothing but the gross fare market rent of the property. The total amount of income from house property was computed by Assessing Officer as follows:
Monthly Damages awarded by Arbitrator Rs. 1,07,020/-
Less Actual rent payment by PSIDC Rs. 30,000/- Shortfall Rs. 77,020/- Shortfall for entire 31 months Rs. 23,87,620/-
The assessee has received the balance amount of Rs. 23,87,620/- as a result of award during the F.Y. under assessment and as such the same is assessable in this year under the head income from house property.
8. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A) who has confirmed the addition made by the Assessing Officer. Aggrieved by the order of the ld. CIT(A) the assessee is in appeal before us.
9. We heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws Page | 5 Balkau Timbers Pvt. Ltd.
ITA No.2261/Kol/2014Assessment Year:2010-11 relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. We note that in this assessee's case under consideration, the lesser and lessee relationship was only between the period 01.11.1993 to 31.10.1996. The lesser and lessee relationship came to an end on 31.10.1996 and thereafter in order to get the property vacant, the assessee filed the legal suit and in consequence of the legal suit the assessee got the money by way of shortfall damages Rs. 23,87,620/- and interest of Rs. 40,63,026/-. The assessee treated these receipts as capital receipts / mesne profit relying on the judgment of the Hon'ble Calcutta High Court in the case of Smt. Lila Ghosh reported in 205 ITR 9 (Cal) wherein it was held as follows:
"2. Shortly stated, the facts leading to these references are that the assessee inherited on the death of her husband in 1960 a property which was under
lease. The lease expired in 1970. However, the lessee did not give possession to the assessee. The assessee filed a suit for eviction and mesne profits. The suit was decreed in favour of the assessee on 11th Aug., 1971. The decree was affirmed on 19th May, 1979 by the Addl. District Judge, by this Court on 6th May, 1976 and by the Supreme Court on 19th Sept., 1977. The assessee then applied for the execution of the decree. The Court appointed a commissioner to determine the claim of quantum of mesne profits. While the execution of the said decree and the quantum of the mesne profit were pending, the Govt. of West Bengal requisitioned the demised property on 24th Dec., 1979. The said requisition order was challenged by the assessee before this Court through a writ application filed under Art. 226 of the Constitution. A settlement was arrived at between the assessee and State of West Bengal in the said writ application which was recorded by this Court in its order dt. 28th Feb., 1980 and 6th Sept., 1985.
3. Under the Terms of settlement, the property in question was to be acquired by the State of West Bengal under the Land Acquisition Act, 1894 and compensation for such acquisition was to be paid to the assessee. A sum of Rs. 11 lacs as advance on account of compensation for such acquisition was paid by the State of West Bengal under the said order dt. 28th Feb., 1980 of this Court. There is no dispute relating to the compensation received for acquisition of the said premises or as to the said sum of Rs. 11 lacs received as advance towards compensation for such acquisition.
4. Apart from the compensation for acquisition of the said premises, the assessee received a sum of Rs. 2 lacs from the State of West Bengal on account of mesne profits for the use and occupation of the said premises by the erstwhile tenant. The relevant portion of the order of this Court relating to the said sum is set out hereinbelow :
"Petitioner Smt. Lila Ghosh will assign the decree for mesne profits obtained and to be passed as a final decree against M/s Technicians Studio Pvt. Ltd., for their use and occupation of the portion of premises No. 4, Baburam Ghosh Road, Tollygunge, Calcutta belonging to Smt. Lila Ghosh on payment of Rs. 2 Page | 6 Balkau Timbers Pvt. Ltd.ITA No.2261/Kol/2014
Assessment Year:2010-11 lakhs (Rupees two lakhs) to her by the Govt. of West Bengal immediately, preferably by 29th Feb., 1980, in favour of the State of West Bengal in full and final settlement of her claim and she will also assign the decree for ejectment obtained by her against M/s Technicians Studio Pvt. Ltd. in Title Suit No. 59 of 1970 in the Court of the Subordinate Judge, Third Court at Alipore, in favour of the State of West Bengal on payment of the aforesaid sums to her, if found necessary by the State of West Bengal at any time."
By the subsequent order of this Court it was clarified as under :
"It is clarified that Rs. 2 lakhs have been paid to Smt. Lila Ghosh by the State Govt. on the ground of mesne profits for the period from May, 1970 to February, 1980."
5. The undisputed facts are that the assessee was the owner of the premises in question. The said premises was tenanted and after determination of the tenancy and even after the decree was passed for ejectment by the trial Court and affirmed by the appellate Courts, including the Supreme Court, the tenant continued to occupy the said premises. Ultimately, the State of West Bengal acquired the said premises and gave it to the said tenant for its use and occupation. The tenant was thus ultimately not ejected. The ownership of the property passed from the assessee to the State of West Bengal under the said acquisition proceedings. In this reference the matter in question relates only to the sum of Rs. 2 lakhs received as mesne profits for the period prior to acquisition.
6. While making assessment, the ITO assessed the said sum of Rs. 2 lacs representing mesne profits as revenue receipt in the hands of the assessee- company under the head "Income from other sources".
7. On appeal by the assessee, it was submitted, inter alia, before the CIT(A) that the mesne profits of Rs. 2 lacs received by the assessee in terms of the orders of this Court were nothing but damages and, therefore, a capital receipt not chargeable to income-tax. It was also contended by the assessee before the CIT(A) that in case the assessee's contention in this respect is rejected and the mesne profits of Rs. 2 lacs are held to be revenue receipts, the same cannot be taxed in one year since it related to the period from 19th May, 1970 to 24th Dec., 1979. Furthermore, the amount could be charged to tax only under the head "Income from house property"by way of additional rent received or receivable in the form of mesne profits on account of user of the assessee property by the lessee. The CIT(A), however, rejected all contentions of the assessee's and held that the mesne profits of Rs. 2 lacs were revenue receipts assessable to income-tax under the head "Income from other sources".
The CIT(A) also distinguished the three decisions cited on behalf of the assessee, in CIT vs. Rani Prayag Kumari Devi (1940) 8 ITR 25 (Pat); CIT vs. Periyar & Pareekanni Rubbers Ltd. (1973) 87 ITR 666 (Ker) and CIT vs. J.D. Italia (1983) 32 CTR (AP) 124 : (1983) 141 ITR 948 (AP). The CIT(A) also held that the mesne profits arose to the assessee in terms of an order of the Court dt. 28th Feb., 1980 which falls within the previous year relevant to the assessment year under appeal. In that view, the CIT(A) held that the entire sum of Rs. 2 lacs representing mesne profits was taxable as revenue receipt in the hands of the assessee in the asst. yr. 1980-81.
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8. On further appeal by the assessee, the Tribunal held that the mesne profits of Rs. 2 lacs arose as a result of the transfer of the capital asset and the same was assessable under the head "Capital gains". According to the Tribunal, the assessee received the sum of Rs. 2 lacs by transferring her right to receive the mesne profits. That right, in the opinion of the Tribunal, was a capital asset and it accrued in favour of the assessee on the order of this Court passed on 28th Feb., 1980. The Tribunal also rejected the contention advanced on behalf of the assessee that no capital gain was chargeable ,inasmuch, as there was no cost of acquisition of the so-called capital asset.
Reliance in this connection was placed on the decision of the Supreme Court in CIT vs. B.C. Sreenivasa Setty (1981) 21 CTR (SC) 138 : (1981) 128 ITR 294 (SC). The Tribunal, however, distinguished the said decision of the Supreme Court and observed that the instant case was not a case of transfer of goodwill. The capital asset transferred was a decree representing right to receive money stipulated in the decree. This asset, according to the Tribunal, was assignable and it had been so assigned on a definite date. It was possible to determine the exact date on which the transfer took place. The Tribunal held that it was also possible to determine the cost of acquisition of the asset in question, which, according to the Tribunal, consisted of the amount spent by the assessee towards stamp duty and other legal expenses incurred for obtaining the decree.
9. From the aforesaid decision of the Tribunal, both the assessee as well as the Revenue have sought reference to this Court. Before us the contentions urged before the Tribunal have been reiterated.
10. Sec. 2(12) of the CPC defines mesne profits as follows :
"(12) `mesne profits' of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
11. The Judicial Committee of the Privy Council in Girish Chunder Lahiri vs. Shashi Shikhareswar Roy (1900) 27 IA 110 (PC) stated at page 112 as under :
"..... mesne profits are in the nature of damages which the Court may mould according to the justice of the case."
12. In Lucy Kochuvareed vs. Marippa Gounder AIR 1979 SC 1214, the Supreme Court observed at page 1219 of the report as under :
"Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case, can be laid down and the Court may mould them according to the justice of the case."
13. At this stage we may refer to the decisions cited from the Bar in support of the respective contentions. In CIT vs. Rani Prayag Kumari Devi (supra), the assessee was deprived of certain movable and immovable properties. She filed a suit and obtained a decree for the recovery of the movable and immovable properties and also damages for wrongful detention of the properties. It was held by the Patna High Court that the amount received by the widow of the Page | 8 Balkau Timbers Pvt. Ltd.
ITA No.2261/Kol/2014Assessment Year:2010-11 deceased holder was damages for wrongful detention of the movable properties of the assessee; it was not paid under any contract to pay any interest and was, therefore, not a revenue receipt.
14. In CIT vs. Periyar Pareekanni Rubbers Ltd. (supra), the Government took possession of the property on 29th Nov., 1961, under an agreement with the assessee. The Award was made on 31st Aug., 1962. The assessee was paid interest for the period between the date of acquisition and the date of the award. The Kerala High Court held that there was a clear case of deprivation of property and interest paid by the Government from the date of possession to the date of award was merely a compensation for such deprivation. The Court further held that such compensation was calculated as a percentage of interest on the amount of compensation and did not affect the question whether interest so paid was for deprivation of the property or not.
15. In CIT vs. J.D. Italia (supra), the land of the assessee was unauthorisedly acquired and the civil suit instituted by the assessee for recovery of possession was decreed in his favour.
During the pendency of the appeals, the parties arrived at a compromise where- under the assessee was paid a sum of Rs. 40,000 which, though described as interest, was essentially in the nature of damages for use and occupation paid to the owner or compensation received by the owner for the deprivation of the use and possession of the land. The A.P. High Court held that the amount in question was not a revenue receipt and was not includible in the taxable income of the assessee for the asst. yr. 1969-70.
16. In CIT vs. Ashoka Marketing Ltd. (1986) 53 CTR (Cal) 152 : (1987) 164 ITR 664 (Cal). The assessee had entered into an agreement for purchase of certain property belonging to the vendor. The agreement stipulated that if the transaction could not be completed due to any default on the part of the vendor, a sum of Rs. 1 lac was to be paid to the assessee (intending purchaser) by way of liquidated damages. The vendor failed to complete the transaction because the title was not marketable. The assessee received a sum of Rs. 1 lac by way of liquidated damages for non-performance of the agreement by the vendor. This Court held that the amount so received by way of damages was a capital receipt and since there was no element of cost involved, there was no liability to capital gains tax.
17. All the aforesaid cases clearly support the assessee in this reference. Since the mesne profits are only damages for loss of property or goods, these are not in the nature of revenue receipts. The receipt of Rs. 2 lacs is clearly capital in nature. The counsel for the Revenue, however, invited our attention to a decision of the Madras High Court in CIT vs. P. Mariappa Gounder (1984) 147 ITR 676 (Mad). In that case, the assessee agreed to purchase a tile factory under an agreement dt. 22nd May, 1950. The vendor, contrary to the agreement and in breach thereof, sold it to another person and put him in possession. The assessee sued the vendor for specific performance. This suit was decreed in favour of the assessee and the same was affirmed by the Supreme Court. The Supreme Court also decreed mesne profits payable to the assessee as fixed by the trial Court. The Madras High Court held that a claim to mesne profits is usually directed against one who has deprived the true owner from possession of his property and who has thereby prevented the true owner from enjoying the Page | 9 Balkau Timbers Pvt. Ltd.
ITA No.2261/Kol/2014Assessment Year:2010-11 income therefrom or usufruct of the property. When in such a suit or proceeding, the Court awards mesne profits to the true owner, it represents a just recompense to the true owner for the deprivation of the income which ought to have come to his hands but for the interference of the person in wrongful possession of the property. It is in recognition of this principle that the true owner is entitled to the income from the property and the person who is in wrongful possession is to compensate the true owner by paying either the actual income from the property or a reasonable estimate of that income. Consequently, the mesne profits are also a species of taxable income.
18. With great respect to the learned Judges, we could not persuade ourselves to agree with the views expressed by the Madras High Court in the aforesaid decision so far as it holds that mesne profits awarded by the Court for wrongful possession are liable to be assessed as income. Neither the decision of the Privy Council in Girish Chunder Lahiri (supra) nor the decision of the Supreme Court in Lucy Kochuvareed (supra) were either cited or noticed by the learned Judges of the Madras High Court. In fact, even the decision of the Patna High Court in CIT vs. Rani Prayag Kumari Devi (supra) and that of the Kerala High Court in CIT vs. Periyar and Pereekanni Rubbers Ltd. (supra) were neither noticed nor considered by the Madras High Court.
In our view, on the facts of this case, the Tribunal was justified in holding that the mesne profits of Rs. 2 lacs received by the assessee in this case was in the nature of damages and, therefore, capital receipt.
19. The next question is whether the aforesaid capital receipt is liable to capital gains tax. As indicated, the Tribunal held that the decision of the Supreme Court in CIT vs. B.C. Sreenivasa Setty (supra) has no application in the facts and circumstances of this case. In our view the Tribunal fell in error. The amount spent by the assessee towards stamp duty and/or other legal expenses incurerd in obtaining the decree cannot be said to be the cost of acquisition. Whether a person in a litigation would be successful in his claim and would get a decree or not does not depend upon incurring of legal expenses and/o rpayment of Court fee. The expenses incurred for the purpose of securing justice or for vindication of legal rights cannot be considered as cost of acquisition of such rights themselves which are subject-matter of legal proceedings. Legal proceedings do not create any new or different right. The Court only recognises the existing right or claim of the party concerned in the litigation and gives judicial recognition thereto. Expenses incurred for obtaining such judicial recognition of a right cannot amount to cost of acquisition of such right itself. In our view, therefore, no part of the said sum of Rs. 2 lacs can be charged to capital gains tax since there is no cost of acquisition involved in this case. The principles laid down by the Supreme Court in CIT vs. B.C. Sreenivasa Setty (supra) are clearly applicable in the facts and circumstances of this case. In our view, no cost of acquisition can be envisaged in respect of the right to receive mesne profits already vested in the assessee having regard to her ownership of the property in question.
20. Even otherwise, we find that there is no assignment of the decree for mesne profits in this case. The State Government acquired the said premises under the Land Acquisition Act, 1894 and by reason of such acquisition, the said property vested in the State Government free from all encumbrances. No final decree in respect of mesne profit was passed in favour of the assessee. In terms of the Page | 10 Balkau Timbers Pvt. Ltd.
ITA No.2261/Kol/2014Assessment Year:2010-11 order passed by this Court on 29th Feb., 1980, the State Government reserved the right to itself for getting an assignment from the assessee in respect of the final decree for mesne profits, if any, passed against M/s Technician Studios (P) Ltd. for their use and occupation of the said property. In fact, after the order of acquisition was passed by the State Government, even the preliminary decree for mesne profits obtained by the assessee was rendered infructuous. In these circumstances, it cannot be held that the assessee had made any capital gains on the transfer of a capital asset.
21. For the reasons aforesaid, we answer both the questions raised by the Revenue in IT Ref. No. 32 of 1991 in the negative and in favour of the assessee.
22. The first question raised by the assessee in her reference is answered in the negative and in favour of the assessee.
23. The second question raised by the assessee in her reference is answered in the affirmative and in favour of the assessee.
There will be no order as to costs."
We note that facts of the assessee's case is similar / identical to that discussed by the Hon'ble Calcutta High Court in the case of Smt. Lila Ghosh (supra). Therefore we direct the Assessing Officer to treat capital / mesne receipts of shortfall damages Rs. 23,87,620/- and interest of Rs. 40,63,026/-, received by the assessee.
10. In the result, the appeal of the assessee is allowed.
Order pronounced in the Court on 25.09.2019
Sd/- Sd/-
(S.S.GODARA) (A.L.SAINI)
या यकसद य / JUDICIAL MEMBER लेखासद य / ACCOUNTANT MEMBER
दनांक/ Date: 25/09/2019
(SB, Sr.PS)
Copy of the order forwarded to:
1. Balkau Timbers Pvt. Ltd.
2. ITO, Ward-8(1), Kolkata
3. C.I.T(A)- 4. C.I.T.- Kolkata.
5. CIT(DR), Kolkata Benches, Kolkata.
6. Guard File.
True copy
By Order
Assistant Registrar
ITAT, Kolkata Benches
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