ACIT, Circle - 29, Kolkata V. Ricky Chandra, Kolkata

ITA 1025/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54657 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 20-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY D R
• Assessee Lawyers: SOUMITRA CHOW DHURY; T K CHAKRABORTY
• Keywords: Question of law
• Section: 90; 139

Judgement Text

, A , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA ( ) . . , , , , , , ) [BEFORE SRI S.V. MEHROTRA, A.M. & SRI MAHAVIR SING H, J.M.] ! ! ! ! / I.T.A NO. 1025/KOL/2011 '# $% / ASSESSMENT YEAR : 2009-2010 ASSISTANT COMMISSIONER OF INCOME TAX, -VS.- RICKY CHANDRA, KOLKATA CIRCLE-29, KOLKATA (PAN : ADOPC 8548 E) ( &' /APPELLANT ) ( ()&' / RESPONDENT ) & C.O. NO. 50/KOL./2011 ( ! ! ! ! / IN I.T.A NO. 1025/KOL/2011) '# $% / ASSESSMENT YEAR : 2009-2010 RICKY CHANDRA, KOLKATA -V S.- ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-6, KOLKATA ( &' /APPELLANT ) ( ()&' / RESPONDENT ) FOR THE ASSESSEE : S/SHRI SOUMITRA CHOWDHURY AND T.K. CHAKRABORTY, A.R. FOR THE DEPARTMENT : SHRI S.K. ROY, D.R. *' + , - *' + , - *' + , - *' + , - /DATE OF HEARING : 23.11.2011 .$ , - .$ , - .$ , - .$ , - /DATE OF PRONOUNCEMENT : 29.11.2011 / / ORDER PER SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER/ . . , :- WE FIRST TAKE UP THE APPEAL BEING ITA NO. 1025/KOL./2011 . THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME- TAX (APPEALS)-XVI, KOLKATA DATED 06.01.2011 FOR THE ASSESSMENT YEAR 2009-10. 2. THE OFFICE HAS REPORTED THAT THE APPEAL FILED BY THE DEPARTMENT IS DELAYED BY ONE DAY. ACIT, CIRCLE-29, KOLKATA VIDE HIS AFFIDAVIT DATED 1 9.07.2011 HAS FURNISHED THE REASONS FOR DELAY, WHICH, INTER ALIA, READS AS UNDER :- (1) DELAYED FURNISHING OF REQUISITE DOCUMENTS BEFOR E THIS OFFICE BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE. ITA NO. 1025/KOL../2011 & CO-50-KOL-2011 2 (2) THE ISSUE INVOLVE IS A TECHNICAL MATTER RELATIN G TO ALLOWABILITY OF CARRY FORWARD LOSSES IN PROCESSING UNDER SECTION 143(1) B Y CPC, BANGALORE. ONE OF THE REASON IS THE DELAY IN RECEIPT OF INSTRUCTIONS FROM THE CPC, BANGALORE. (3) WE HAD SENT OUR STAFF TO THE ITAT OFFICE ON THI S DAY BUT HE WAS UNABLE TO FILE THE SAME. LD. COUNSEL FOR THE ASSESSEE DID NOT OPPOSE THE CON TENTION OF LD. D.R. 3. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES, WE ARE OF THE OPINION THAT ON ACCOUNT OF ADMINISTRATIVE REASONS, THE APPEAL COULD NOT BE FILED WITHIN TIME AND, THEREFORE, WE CONDONE THE DELAY OF ONE DAY. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING O FFICER HAD ISSUED INTIMATION UNDER SECTION 143(1) ON 04.06.2010. WHILE ISSUING INTIMATION, ASS ESSING OFFICER DID NOT ALLOW THE LOSS OF PREVIOUS YEAR CLAIMED BY THE ASSESSEE IN HIS RETURN OF INCOME AMOUNTING TO RS.35,96,510/-. THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(AP PEALS), WHO DIRECTED THE ASSESSING OFFICER TO VERIFY THE CLAIM OF ASSESSEE FROM THE RECORD OBS ERVING THAT IF THE CLAIM WAS FOUND TO BE PROPER THEN TO ALLOW THE SAME. THE DEPARTMENT, BEIN G AGGRIEVED WITH THE ORDER OF LD. CIT(APPEALS), IS IN APPEAL BEFORE THE TRIBUNAL AND HAS TAKEN THE FOLLOWING GROUND :- THE LD. CIT(A.) HAS ERRED IN SETTING ASIDE THE ORD ER IN VIEW OF THE AMENDMENT IN SEC. 251(1)(A) WITH EFFECT FROM 01.06. 2001. THE ASSESSEE HAS FILED C.O. SUPPORTING THE ORDER OF LD. CIT(APPEALS). 5. AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE ASSESSING OFFICER WAS NOT EMPOWERED TO MAKE THE IMPUGNED ADJUSTMENT W HILE ISSUING INTIMATION AND, ACCORDINGLY, TOOK AN ORAL GROUND TO THIS EFFECT. HE RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASES OF (I) NATIONAL THERMAL POWER CO. LTD. VS.- CIT [229 ITR 383 (SC)] AND (II) CIT, MADRAS VS.- S. NELLIAPPAN [66 ITR PAGE 722 (SC)] IN SUPPORT OF HIS PROPOSITION THAT A LEGAL GROUND CAN BE ORALLY RAISE D AT THE TIME OF HEARING ALSO. 6. LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED THE SUBMISSIONS AND RELIED ON THE GROUNDS RAISED BY THE DEPARTMENT. ITA NO. 1025/KOL../2011 & CO-50-KOL-2011 3 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORDS OF THE CASE. THE HONBLE SUPREME COURT IN THE CASE OF CIT, MADRAS VS.- S. N ELLIAPPAN [66 ITR PAGE 722] HAS OBSERVED AS UNDER :- IN HEARING AN APPEAL THE TRIBUNAL MAY GIVE LEAVE TO THE ASSESSEE TO URGE GROUNDS NOT SET FORTH IN THE MEMORANDUM OF APP EAL AND IN DECIDING THE APPEAL THE TRIBUNAL IS NOT RESTRICTED TO THE GROUND S SET FORTH IN THE MEMORANDUM OF APPEAL OR TAKEN BY LEAVE OF THE TRIBU NAL.(HEAD NOTE) FURTHER, IN NTPC CASE (SUPRA), HONBLE SUPREME COUR T OBSERVED AS UNDER :- THE PURPOSE OF THE ASSESSMENT PROCEEDINGS BEFORE T HE TAXING AUTHORITIES IS TO ASSESS CORRECTLY THE TAX LIABILIT Y OF AN ASSESSEE IN ACCORDANCE WITH LAW. THERE IS NO REASON TO RESTRICT THE POWER OF TH E TRIBUNAL UNDER SECTION 254 ONLY TO DECIDE THE GROUNDS WHICH ARISE FROM THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS). BOTH THE ASSESSEE AS WELL AS THE DEPARTMENT HAVE A RIGHT TO FILE AN A PPEAL/ CROSS OBJECTIONS BEFORE THE TRIBUNAL. THE TRIBUNAL SHOULD NOT BE PREVENTED FROM CONSIDERING QUESTION OF LAW ARISING IN ASSESSM ENT PROCEEDINGS, ALTHOUGH NOT RAISED EARLIER. THE VIEW THAT THE TRIB UNAL IS CONFINED ONLY TO ISSUES ARISING OUT OF THE APPEAL BEFORE THE COMM ISSIONER (APPEALS) IS TOO NARROW A VIEW TO TAKE OF THE POWERS OF THE T RIBUNAL. UNDOUBTEDLY, THE TRIBUNAL HAS THE DISCRETION TO AL LOW OR NOT TO ALLOW A NEW GROUND TO BE RAISED. BUT WHERE THE TRIB UNAL IS ONLY REQUIRED TO CONSIDER THE QUESTION OF LAW ARISING FR OM FACTS WHICH ARE ON RECORD IN THE ASSESSMENT PROCEEDINGS, THERE IS N O REASON WHY SUCH A QUESTION SHOULD NOT BE ALLOWED TO BE RAISED WHEN IT IS NECESSARY TO CONSIDER THAT QUESTION IN ORDER TO CORRECTLY ASSESS THE TAX LIABILITY OF AN ASSESSEE. 7.1. WE FIND THAT THE GROUND RAISED BY THE ASSESSEE AT THE TIME OF HEARING IS PURELY LEGAL BEING IMPINGING UPON THE ASSESSING OFFICERS JURISD ICTION WHILE ISSUING INTIMATION AND, THEREFORE, IN VIEW OF THE DECISION OF THE HONBLE S UPREME COURT (SUPRA), WE ENTERTAIN THE SAME. BRIEF FACTS APROPOS THIS GROUND ARE THAT THE ASSESS EE HAD ADJUSTED THE LOSS RELATING TO PREVIOUS YEARS AGGREGATING TO RS.35,96,510/-. THE A SSESSING OFFICER DENIED THE CLAIM WHILE ISSUING INTIMATION UNDER SECTION 143(1). THE QUESTI ON IS WHETHER ASSESSING OFFICER COULD MAKE THIS ADJUSTMENT OR NOT? FOR PROPER APPRECIATION OF ASSESSING OFFICERS POWERS, WE REPRODUCE SECTION 143(1), WHICH READS AS UNDER :- 143 [(1) WHERE A RETURN HAS BEEN MADE UNDER SECTION 139 , OR IN RESPONSE TO A NOTICE UNDER SUB- SECTION (1) OF SECTION 142 , SUCH RETURN SHALL BE PROCESSED IN THE FOLLOWING M ANNER, NAMELY: (A) THE TOTAL INCOME OR LOSS SHALL BE COMPUTED AFT ER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I) ANY ARITHMETICAL ERROR IN THE RETURN; OR ITA NO. 1025/KOL../2011 & CO-50-KOL-2011 4 (II) AN INCORRECT CLAIM, IF SUCH INCORRECT CLAIM I S APPARENT FROM ANY INFORMATION IN THE RETURN; (B) THE TAX AND INTEREST, IF ANY, SHALL BE COMPUTE D ON THE BASIS OF THE TOTAL INCOME COMPUTED UNDER CLAUSE (A); (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DU E TO, THE ASSESSEE SHALL BE DETERMINED AFTER ADJUSTMENT OF THE TAX AND INTEREST, IF ANY, COMPUTE D UNDER CLAUSE (B) BY ANY TAX DEDUCTED AT SOURCE, ANY TAX COLLECTED AT SOURCE, ANY ADVANCE TA X PAID, ANY RELIEF ALLOWABLE UNDER AN AGREEMENT UNDER SECTION 90 OR SECTION 90A , OR ANY RELIEF ALLOWABLE UNDER SECTION 91 , ANY REBATE ALLOWABLE UNDER PART A OF CHAPTER VIII, ANY TAX PAID ON SELF-ASSESSMENT AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED A ND SENT TO THE ASSESSEE SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUN D DUE TO, THE ASSESSEE UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE ASSESSEE IN PU RSUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE ASSESSEE: PROVIDED THAT AN INTIMATION SHALL ALSO BE SENT TO THE ASSESS EE IN A CASE WHERE THE LOSS DECLARED IN THE RETURN BY THE ASSESSEE IS ADJUSTED BUT NO TAX OR INTEREST IS PAYABLE BY, OR NO REFUND IS DUE TO, HIM: PROVIDED FURTHER THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHIC H THE RETURN IS MADE. EXPLANATION.FOR THE PURPOSES OF THIS SUB-SECTION, (A) AN INCORRECT CLAIM APPARENT FROM ANY INFORMAT ION IN THE RETURN SHALL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE RETURN, (I) OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH RETURN; (II) IN RESPECT OF WHICH THE INFORMATION REQUIRED TO BE FURNISHED UNDER THIS ACT TO SUBSTANTIATE SUCH ENTRY HAS NOT BEEN SO FURNISHED; OR (III) IN RESPECT OF A DEDUCTION, WHERE SUCH DEDUCT ION EXCEEDS SPECIFIED STATUTORY LIMIT WHICH MAY HAVE BEEN EXPRESSED AS MONETARY AMOUNT OR PERCE NTAGE OR RATIO OR FRACTION; (B) THE ACKNOWLEDGEMENT OF THE RETURN SHALL BE DEE MED TO BE THE INTIMATION IN A CASE WHERE NO SUM IS PAYABLE BY, OR REFUNDABLE TO, THE ASSESSEE U NDER CLAUSE (C), AND WHERE NO ADJUSTMENT HAS BEEN MADE UNDER CLAUSE (A). 7.2. A BARE PERUSAL OF SECTION READ WITH EXPLANATIO N REVEALS THAT THE ADJUSTMENTS CONTEMPLATED ARE VERY LIMITED. EXPLANATION (A) TO S ECTION 143(1) EXPLAINS THE MEANING OF AN INCORRECT CLAIM. THE ASSESSEE HAD ADJUSTED THE LOSS RELATING TO PREVIOUS YEARS AGGREGATING TO RS.35,96,510/-. ALL THE INFORMATIONS IN THIS REGARD WERE AVAILABLE WITH THE ASSESSING OFFICER. IF HE HAD ANY DOUBT IN THIS REGARD, THEN HE COULD HAVE ISSUED NOTICE UNDER SECTION 143(2) BUT WHILE ISSUING INTIMATION UNDER SECTION 143(1) COULD NOT DENY THE ADJUSTMENT OF LOSS CLAIMED BY ASSESSEE AS THE SAME DOES NOT COME WITHIN THE AMBIT OF AN INCORRECT CLAIM APPARENT FROM ANY INFORMATION IN THE RETURN. THEREFORE, THE ADJUSTME NT MADE BY THE ASSESSING OFFICER WAS WITHOUT JURISDICTION. ITA NO. 1025/KOL../2011 & CO-50-KOL-2011 5 8. AS WE HAVE HELD THAT THE ADJUSTMENT PER SE WAS B AD IN LAW THEREFORE, THE GROUND RAISED BY DEPARTMENT CHALLENGING THE ACTION OF LD. CIT(APP EALS) IN RESTORING THE MATTER TO ASSESSING OFFICER FOR VERIFICATION IN VIEW OF THE AMENDMENT T O SECTION 251(1)(A) WITH EFFECT FROM 01.06.2001 BECOMES WHOLLY ACADEMIC AND, THEREFORE, THE GROUND RAISED BY DEPARTMENT IS DISMISSED AS INFRUCTUOUS. FURTHER, SINCE THE CROSS OBJECTION FILED BY ASSESSEE IS IN SUPPORT OF LD. CIT(APPEALS)S ORDER, THE SAME IS ALSO DISMISSE D AS BEING INFRUCTUOUS. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE A S WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/ 11/2011. * 0 1 / 29/11/2011. SD/- SD/- [ MAHAVIR SINGH / ] [S.V. MEHROTRA/ ( . . )] JUDICIAL MEMBER/ ACCOUNTANT MEMBER/ DATED : 29 / 11/ 2011 COPY OF THE ORDER FORWARDED TO: 1. RICKY CHANDRA, 68A, PEARY MOHAN ROY ROAD, KOLKATA-2 7. 2 ACIT, CIRCLE-29, KOLKATA, 2, GARIAHAT ROAD, KOLKATA -700 068. 3. COMMISSIONER OF INCOME-TAX (APPEALS)- ,KOLKATA 4. CIT, WB- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.