INCOME TAX OFFICER, KOLKATA V. SARASWATI CONCLAVE PVT LTD, KOLKATA

MA 44/KOL/2025

AI Insights

The case involves a miscellaneous application by the Income Tax Department to recall a previous order of the Income Tax Appellate Tribunal, Kolkata, which had dismissed an appeal due to low tax effect. The appeal was related to the assessment year 2012-2013. The assessee had opted for the Vivad Se Vishwas Scheme, 2024, settling the dispute by paying the determined taxes and receiving a full and final settlement order. The department's attempt to recall the order was based on the argument that the case fell within an exception clause of the monetary limit for appeals. However, the tribunal found that since the matter was already settled under the VSVS, there was no need to recall the order.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 771991 (ITAT-KOLKATA)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-08-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.B. CHAKRABORTHY
• Assessee Lawyers: GIRIDHAR DHELIA
• Keywords: Tax effect
• Section: 148; 143(3); 68

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER विविध आिेदन सं/MA No.44/KOL/2025 (Arising out of ITA No.956/KOL/2024) (ननधधारण िर्ा / Assessment Year : 2012-2013) ITO Ward-12(1), Kolkata Vs Saraswati Conclave Private Limited Block-B, Ground Floor, 8, Lake Town, Kolkata-700089 PAN No. :AADCD 0603 Q (अपीलधर्थी /Appellant) .. (प्रत्यर्थी / Respondent) ननधधाररती की ओर से /Assessee by : Shri Giridhar Dhelia, Advocate रधजस्ि की ओर से /Revenue by : Shri S.B.Chakraborthy, Sr. DR सुनवाई की तारीख / Date of Hearing : 08/08/2025 घोषणा की तारीख/Date of Pronouncement : 28/08/2025 आदेश / O R D E R Per Pradip Kumar Choubey, JM : The revenue has filed the instant miscellaneous application arising out of the order dated 19.12.2024 passed by the Tribunal in ITA No.956/Kol/2024 for the assessment year 2012-2013, which was dismissed on account of low tax effect. 2. Ld. Sr. DR submitted that the present case is covered within the exception clause, hence, the dismissal of the appeal on the ground of monetary limit be recalled and appeal be listed for hearing. 3. Ld.AR objected the contention of the ld. Sr. DR by submitting that the assessee has already opted VSVS Scheme, 2024 and after payments of taxes as determined under the Scheme and received the order for full and final settlement in Form No.4 of the VSVS Scheme dated 06.03.2024, hence, no need to recall the order dated 19.12.2024 passed by the Tribunal in ITA No.956/Kol/2024. Ld. AR submitted that, in fact, against Printed from counselvise.com MA No.44/KOL/2025 2 the order passed by the ld. CIT(A) in which the ld.CIT(A) has partly allowed the appeal, the assessee filed an appeal before the ITAT bearing ITA No.814/Kol/2024 and the department has also filed a separate appeal instead of filing cross appeal bearing ITA No.956/Kol/2024. The appeal of the assessee had been withdrawn by the assessee as the assessee has availed the Scheme of VSVS wherein the order for full and final submission has been done. The ld.AR submitted that since for the one order two appeals have been filed one by assessee and one by the department and the appeal of the assessee had been settled vide VSVS Scheme, therefore, there is nothing remained to adjudicate. Ld. Sr. DR did not controvert the contention of the assessee. 4. We have gone through the submissions made by the assessee, which the assessee had filed before us and it is relevant to reproduced the same as under :- Written Notes 1. That the instant MA is filed by the Income Tax Department to recall the appeal disposed off under ITA No. 956/Kolkata/2024 2. Brief Facts:- 2.1. That the Appellant Company filed its return of income for the impugned Asst. Year 2012-13 on 29/01/2013. The said return was processed under section 143(1) of the Income Tax Act, 1961 (\"the Act\") on 24/07/2013. 2.2. That the Assessment was carried out under section 143(3) and Order was passed on 26/03/2015. The instant case was selected for scrutiny by issuance of notice under section 148 of the Act on the basis of information received by the Ld. AO and additions were made under section 68 of the Act through Asst. Order dated 21/12/2019. 2.3. Subsequently, the appellant filed an appeal before the Ld. CIT(A) against the above impugned Asst. Order, which was disposed by the Ld. CIT(A), NFAC through Order under section 250 dated 09/02/2024, partly allowing the appeal in favour of the appellant. Printed from counselvise.com MA No.44/KOL/2025 3 2.4. That aggrieved by the Order of the Ld. CIT(A), the appellant filed an Appeal in Form No. 36 before this Hon'ble Kolkata Bench of the Income Tax Appellate Tribunal in ITA No. 814/Kolkata/2024. 2.5. That later on Department also filed an Appeal against the same Order of the Ld. CIT(A) dated 09/02/2024 under ITA No. 956/Kolkata/2024. 2.6. However, we would like to invite your attention to the provisions of section 253(4) of the Act, the verbatim is as follows:- ((4) The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal [against an order), has been preferred under sub-section (1) or sub-section (2) by the other party, may, notwithstanding that he may not have appealed against such order or any part thereof, within thirty days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of such order), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). 2.7. That accordingly in terms of section 253(4) of the Income Tax Act, in this case where the Assessee has already preferred an appeal against the Order of Ld. CIT(A) under ITA No. 814/Kolkata/2024 on 16/04/2024, the Department in that case was required to file a cross-objection to the said Appeal. Whereas, the Department has filed a separate appeal being ITA No. 956/Kolkata/2024 on 26/04/2024. 2.8. That firstly, appeal of the department (ITA 956/Kolkata/2024) was taken for hearing and was dismissed on account of lower tax effect as prescribed by the CBDT in its Circular 9 of 2024. 2.9. In the meantime, the appellant thought fit to opt for the Vivad se Vishwas Scheme 2024 (hereinafter referred as \"VsV Scheme\") in the matter and filed its declaration in Form-1 of the VSV Scheme and after payment of the tax as determined under the Scheme, received the \"ORDER FOR FULL AND FINAL SETTLEMENT\" IN Form-4 of the VSV Scheme dated 06/03/2025. 2.10. That on the date of filing of VSV Form-1, the only appeal pending in the matter was appeal of the assessee being ITA No. 814/Kolkata/2024 (as appeal of Department being ITA No. 956/Kolkata/2024 was already dismissed for withdrawn) therefore, the assessee has no option but to mention Appeal filed by assessee at the given place in the Form-1 against the pending appeal as on the date of filing Form-1 under VSV. 2.11. That thereafter, the appeal of the assessee was also withdrawn on account of opting of VSV by the assessee and the Order was passed in the said ITA No. 814/Kolkata/2024 allowing the withdrawal of the appeal of the assessee. Printed from counselvise.com MA No.44/KOL/2025 4 3. Submission:- 3.1. Therefore, in view of the above, where the assessee has already opted for the VSV Scheme and received the final Order in Form-4 from the Income Tax Department. The dispute originated from the order for Ld. Assessing Officer against which both the assessee and the Department were in appeal before the Hon'ble ITAT under two different appeals for the same said asst. year get settled under the VSV Scheme. 3.2. Therefore, your appellant most humbly say and submit that there are other legal points in allowing the instant Miscellaneous Application of the Department however, without prejudice to the same, even the instant application of the department for recalling the Order passed under ITA No. 956/Kolkata/2024 dated 19/12/2024, there will be no case of the department on recalling and hearing of the said appeal once again on account of the fact that impugned Order passed by Ld. AO dated 21/12/2019 as well as by Ld. CIT(A) dated 09/02/2024 were already settled under Vivad Se Vishwas Scheme, 2024 through issue of Form 4 dated 06/03/2025 by the department for the same said asst. year. 4. Prayer:- In the above back drop it is most humbly prayed before your honors that the instant Misc. Application No. 44/Kolkata/2025 filed by the department does not stands in the eyes of law and therefore, may kindly be considered in favour of the assessee. 5. Keeping in view the above facts, it needless to recall the order passed in ITA No.956/Kol/2024 as the recalling of the order will not serve any purpose either to the department or to the assessee. Accordingly, this miscellaneous application filed by the revenue stands dismissed. 6. In the result, miscellaneous application filed by the revenue is dismissed. Order pronounced in the open court on 28/08/2025. Sd/- (RAJESH KUMAR) Sd/- (PRADIP KUMAR CHOUBEY) लेखा सदस्य/ ACCOUNTANT MEMBER न्यधनयक सदस्य / JUDICIAL MEMBER कोलकाता Kolkata; ददनाांक Dated 28/08/2025 Prakash Kumar Mishra, Sr.P.S. Printed from counselvise.com MA No.44/KOL/2025 5 आदेश की प्रनतललवप अग्रेवर्त/Copy of the Order forwarded to : आदेशधनुसधर/ BY ORDER, (Assistant Registrar) Income Tax Appellate Tribunal, Kolkata 1. अपीलार्थी / The Appellant- 2. प्रत्यर्थी / The Respondent- 3. आयकर आयुक्त(अपील) / The CIT(A), 4. आयकर आयुक्त / CIT 5. विभागीय प्रविविवि, आयकर अपीलीय अविकरण, कोलकाता / DR, ITAT, Kolkata 6. गार्ड फाईल / Guard file. सत्यापपत प्रतत //True Copy// Printed from counselvise.com "