M/s Imax Infrastructure Pvt. Ltd., Kolkata V. ACIT, Central Circle - 3(3), Kolkata, Kolkata

CO 77/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7643 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 07-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S M SURANA SHR
• Keywords: Depreciation; Search and seizure
• Section: 143(3); 133A; 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI ABY T. VARKEY, JUDICIAL MEMBER) IT(SS)A NO. 23/KOL/2017 ASSESSMENT YEAR: 2008-09 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3(3), KOLKATA......................APPELLANT M/S. IMAX INFRASTRUCTURE PVT. LTD...............................................RESPONDENT 41, B.B. GANGULY STREET CENTRAL PLAZA KOLKATA 700 012 [PAN : AABCI 6031 K] C.O. NO. 77/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. IMAX INFRASTRUCTURE PVT. LTD................................................APPELLANT 41, B.B. GANGULY STREET CENTRAL PLAZA KOLKATA 700 012 [PAN : AABCI 6031 K] ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3(3), KOLKATA.................RESPONDENT APPEARANCES BY: SHRI S.M SURANA, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI A.K. NAYAK, ADDL. CIT SR. D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 13 TH , 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 16 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL BY THE REVENUE AND CROSS-OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 21, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 24/03/2017, FOR THE ASSESSMENT YEAR 2013-14. 2. THE ASSESSEE IS A COMPANY AND IS IN THE BUSINESS OF TRADING. A SEARCH AND SEIZURE OPERATION WAS CONDUCTED ON THE PRAKASH GROUP OF COMPANIES ON 21/11/2013 AND ON 2 IT(SS)A NO. 23/KOL/2017 ASSESSMENT YEAR: 2008-09 C.O. NO. 77/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. IMAX INFRASTRUCTURE PVT. LTD SUBSEQUENT DATES. A SURVEY OPERATION U/S 133A OF THE ACT, WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE. NOTICE U/S 153C OF THE ACT, WAS ISSUED ON 09/12/2015, AND SERVED ON THE ASSESSEE ON 14/12/2015. THE ASSESSEE HAD ORIGINALLY FILED ITS RETURN OF INCOME ON 30/09/2013, DECLARING TOTAL INCOME AT NIL. IN RESPONSE TO THE NOTICE U/S 153C, DT. 09/12/2015, THE ASSESSEE FILED RETURN OF INCOME ON 03/04/2016, DECLARING LOSS OF RS.2,50453/-. THE ASSESSING OFFICER COMPLETED THE ASSESSEE U/S 153(3) R.W.S. 143(3) OF THE ACT, ON 29/03/2016, DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.1,06,78,940/- INTERALIA MAKING A DISALLOWANCE U/S 40(A)(IA) OF THE ACT, AND DISALLOWING EXCESS CLAIM OF DEPRECIATION. 2.1. ON APPEAL THE LD. FIRST APPELLATE AUTHORITY, DELETED THE DISALLOWANCE U/S 40(A)(IA) OF THE ACT, BY HOLDING AS FOLLOWS:- 5. I HAVE CONSIDERED AO'S FINDING AND AR'S SUBMISSION ON THESE ISSUES. THE ASSESSEE HAS CLAIMED THAT THE PAYEES HAVE ALREADY INCLUDED INCOME EARNED FROM THE ASSESSEE IN THEIR OWN RETURN AND THEY HAVE PAID TAX ON IT. THE ASSESSEE HAS FURTHER CLAIMED THAT PAN AND DETAILS TAX PAYMENT HAVE BEEN FILED BEFORE THE AO. THEREFORE, AS PER THE RATIO DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF HINDUSTHAN COCAKOLA REPORTED IN 293 ITR ASSESSEE'S CLAIM TO BE ALLOWED. 6. I HAVE CONSIDERED THE FINDING OF THE AO AND THE WRITTEN SUBMISSION FILED BY THE AR ON THIS ISSUE. THE AO IS DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE THAT DEDUCTEES HAVE ALREADY INCLUDED SUCH AMOUNT IN THEIR RETURN OF INCOME AND PAID TAX THEREON. IN CASE THIS CLAIM OF THE ASSESSEE IS FOUND CORRECT, THEN IN THAT CASE APPEAL ON THIS ISSUE MAY BE TREATED AS ALLOWED. . AS REGARDS DEPRECIATION, HE ACCEPTED THE PLEA OF THE ASSESSEE THAT IT IS A CASE OF DOUBLE ADDITION AND DIRECTED THE ASSESSING OFFICER TO VERIFY THE SAME. 3. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE, MR. S.M. SURANA, SUBMITTED THAT HE CONCEDES THAT THE LD. CIT(A), WAS WRONG IN DELETING THE ENTIRE ADDITION AS FAR DISALLOWANCE U/S 40(A)(IA) OF THE ACT, IS CONCERNED. HE SUBMITTED THAT 30% OF THE DISALLOWANCE MAY BE SUSTAINED IN VIEW OF THE AMENDMENT BROUGHT IN BY THE FINANCE ACT NO. 2, W.E.F. 01/04/2015 TO SECTION 40(A)(IA) OF THE ACT, WHICH IS HELD TO BE CURATIVE AND HENCE RETROSPECTIVE, BY THE ITAT CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. PUNJAB INFRASTRUCTURE & DEVELOPMENT BOARD CHANDIGARH; ITA NO. 3 IT(SS)A NO. 23/KOL/2017 ASSESSMENT YEAR: 2008-09 C.O. NO. 77/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. IMAX INFRASTRUCTURE PVT. LTD 774/CHD/2013, ORDER DT. 30/09/2015 . THE LD. D/R, HAD NO OBJECTIONS WITH THE SAME. 4.1. IN VIEW OF THE ABOVE CONCESSION GIVEN BY THE LD. COUNSEL FOR THE ASSESSEE, WE REVERSE THE ORDER OF THE LD. CIT(A) AND RESTORE THE DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S 40(A) (IA) OF THE ACT, TO THE EXTENT OF 30% OF THE TOTAL AMOUNT. THE BALANCE DISALLOWANCE IS HEREBY DELETED. 5. THE CROSS-OBJECTION IS DISMISSED AS NOT PRESSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED IN PART. THE CROSS-OBJECTION OF THE ASSESSEE IS DISMISSED AS NOT PRESSED. KOLKATA, THE 16 TH DAY OF JANUARY, 2019. SD/- SD/- [ ABY T. VARKEY] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16.01.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. M/S. IMAX INFRASTRUCTURE PVT. LTD 41, B.B. GANGULY STREET CENTRAL PLAZA KOLKATA 700 012 2. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3(3), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES