IN INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA Before Shri S.S.Godara, Judicial Member and Dr. A.L. Saini, Accountant Member ITA No.1036/Kol/2017 Assessment Year :2011-12 Ashoke Kumar Nandi V/s. Income Tax Officer Link Road, P.O. & P.S. W ard-23(4), G.T. Arambag, Dist. Hooghly, Road, Chinsurah, Pin-712601 Hooghly-712601 [PAN No. ABRPN1439J] Appellant. Respondent By Appellant Ms. Shipra Sen, AR By Respondent Shri Robin Choudhury, CIT-DR Date of Hearing 25-07-2019 Date of Pronouncement 21-08-2019 ORDER PER S.S.Godara, Judicial Member- This assessee s appeal for assessment year 2011-12 arises against Commissioner of Income Tax (Appeals)-6 Kolkata s order dated 21.02.2017 passed in case No.82/CIT(A)-6/Kol/15-16, involving proceedings u/s 147 r.w.s. 143(3) of Income Tax Act, 1961 in short Act . 2. assessee pleads following substantive grounds in instant appeal 1. For that on facts of case, order passed by Ld. C.I.T.(A) is completely arbitrary, unjustified d and illegal. 2. For that on facts of case, Ld. C.I.T.(A) was wrong in not considering facts that in reopening assessment u/s. 148 (r.w.s. 147) which is mere change of opinion and against requirement of law, as such his findings is completely arbitrary, unjustified and illegal. 3. For that on facts of case, Ld. C.I.T.(A) was wrong in dittoing order of AO that he was computed return income at Rs.5,9,918/- in place of Rs.NIL showing in return against notice u/s. 148 of IT Act which is completely arbitrary, unjustified and illegal. ITA No.1036/Kol/2017 A.Y. 2011-12 Ashoke Kr. Nandi V. ITOWd-23(4), Hooghly Page 2 4. For that on facts of case, Ld. C.I.T.(A) was wrong in sustaining addition amounting to Rs.109,99,958/- on cash deposits in bank under as undisclosed sources which is completely arbitrary, unjustified and illegal. 5. For that on facts of case, assessee disclosed his income before detection of AO by revised computation and return filed against notice u/s. 148 of IT Act, but he has passed order u/s. 147/143(3) without considering disclosed income which is confirmed by Learned C.I.T.(A), as such his action is completely arbitrary, unjustified and illegal. 6. For that on facts of case, Ld. C.I.T.(A) was wrong in not considering facts that Sec. 71 of IT Act deal with inter head adjustment of loss and assessee claimed set off his loss from share transactions in his return, but Ld. CIT(A) s order, as such his finding is completely arbitrary, unjustified and illegal. 7. For that on facts and in circumstances of case, Ld. CIT(A) ought to have considered that assessee had discharged its onus by furnishing all relevant documents in connection with loss in share transaction in Axis bank and source of fund and also proved identity and creditworthiness and genuineness of transaction amount, therefore, he should have allowed Rs.143,38,904/-in place of 33,38,946/- which is completely arbitrary, unjustified and illegal. 8. For that on facts of case, AO was not following CBDT Guidelines in Computer Aided Scrutiny Selection (CASS) case which is confirmed by Ld. CIT(A), as such his finding is completely arbitrary, unjustified and illegal. 9. For that interest u//s 234B charged mechanically is wrong & illegal. 3. Learned counsel representing assessee submits during course of hearing that she confirms taxpayer s grievance only to set off of brought forward loss / unabsorbed depreciation against unexplained cash credits deemed income addition made by Assessing Officer amounting to 149,38,822/-. She quotes sec. 70, 71 & 72 whilst seeking impugned set off benefit. 4. Revenue s case on other hand is that assessee is not entitled impugned set off as bank cash deposit(s) (supra) added u/s 68 of Act are not entitled to be set off against loss incurred on share transactions carried through one M/s VCK Share & Stock Broking Services Ltd.. Our attention is invited CIT(A) s detailed discussion at page 10 para-5 in CIT(A) s order to this effect holding that purpose of re-opening / re-assessment in tax proceedings bring to tax escaped income for Revenue s benefit and it is not open for assessee to seeking review of concluded item does not form part sec. 148 r.w.s. 147 proceedings. 5. We have given our thoughtful consideration to rival contentions against and in support of both parties. We find that hon'ble Gujarat high court s decision in CIT vs. Shilpa Dyeing & Printing Mills (P) Ltd. (2013) 219 Taxman ITA No.1036/Kol/2017 A.Y. 2011-12 Ashoke Kr. Nandi V. ITOWd-23(4), Hooghly Page 3 279 (Guj) admittedly holds that any income including one in nature of deemed income u/s 69B of Act falls u/s 14 of Act which is entitled for set off provision u/s 71 of Act. Their lordship concluded in other words that all incomes under various head(s) prescribed sec. 14 of Act are eligible to be set off under corresponding computation mechanism. Revenue s case that such computation benefit is not allowed to be raised in re- assessment proceedings; in our considered opinion, does not deserves acceptance since purpose of assessment or re-assessment is to tax right income of taxpayer only. We therefore direct Assessing Officer to finalize necessary consequential computation in above terms as per law after necessary factual verification so far as assessee s deemed income of cash deposits against set off claim from shae transactions is concerned. No other argument has been raised before us. 6. This assessee s appeal is allowed for statistical purposes in above terms. Order pronounced in open court 21/08/2019 Sd/- Sd/- (A.L.Saini) (S.S.Godara) (Accountant Member) (Judicial Member) Kolkata, 21/08/2019 Copy of Order Forwarded to 1. Appellant-Ashoke Kr. Nandi Link Road, P.O.&P.S. Arambag, Dist. Hooghly Pin.712601 2. /Respondent-ITO Ward-23(4), G.T. Road, Chinsurah, Hooghly-712101 Concerned CIT Kolkata 4. CIT (A) Kolkata 5. DR, ITAT, Kolkata 6. Guard file. By order Ashoke Kumar Nandi v. Income-tax Officer, Ward-23(4), Hooghly