M/s. Sunshine School, Kolkata V. ACIT, Circle - 2, Siliguri, Siliguri

ITA 107/KOL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54572 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 31-03-2011
• Assessment Year: 1995-1996
• Appeal Filed On: 15-01-2010
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: SUNIL SURANA
• Keywords: Opportunity of being heard; TDS; Set aside

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA [ () , ,, , , . .. .!' !'!' !'. .. . , , , , #$ ] ]] ] [BEFORE SRI MAHAVIR SINGH, JM & SRI C. D. RAO, AM] & / I.T.A NOS. 107-109/KOL/20 10 '( )*/ ASSESSMENT YEARS : 1995-96 & 1997-98 M/S.SUNSHINE SCHOOL, - ' - A.C.I.T., CIRCLE-2, DARJEELING -VERSUS- SILIGURI. (PAN:AALFS 5449 L) (,- / APPELLANT ) ( ./,- /RESPONDENT) ,- 0 1 #/ FOR THE APPELLANT: SHRI SUNIL SURANA ./,- 0 1 #/ FOR THE RESPONDENT: SHRI S.K.ROY 2'3 0 '$ /DATE OF HEARING : 23.09.2011. 4) 0 '$ /DATE OF PRONOUNCEMENT : 23.09.2011 #5 / ORDER # 67 # 67 # 67 # 67 PER BENCH THE ABOVE THREE APPEALS ARE FILED BY ASSESSEE AGAI NST ORDER DATED 26.10.2009 OF THE CIT(A)-SILIGURI PERTAINING TO A.YRS. 1995-96 AND 1997-98 2. ITA NOS.107AND 109/KOL/2010 ARE RELATING T O QUANTUM APPEALS AND IN BOTH THE APPEALS ASSESSEE HAS RAISED ONLY ONE ISSUE THAT WHE THER THE INTEREST ON FD IS TO BE TAXED IN THE HANDS OF THE FIRM OR IN THE HANDS OF T HE PARTNERS. 3. AFTER HEARING BOTH THE PARTIES AND ON CARE FUL PERUSAL OF MATERIALS AVAILABLE ON RECORD, KEEPING IN VIEW OF THE FACT THAT THE LD. CO UNSEL APPEARING ON BEHALF OF ASSESSEE HAS NOT CONTROVERTED THE FINDINGS OF LD. CIT(A) ON THIS ISSUE. WE CONFIRM THE ACTION OF LD. CIT(A). THE OBSERVATIONS OF LD. CIT(A) ARE AS U NDER :- I HAVE CAREFULLY PERUSED THE ORDERS OF THE LD. AO, MY LD PREDECESSOR AND THE ITAT. AS STATED, IN SPITE OF SEVERAL OPPORTUNITIES PROVID ED TO THE ASSESSEE, NO ONE APPEARED 2 NEITHER FILED ANY DOCUMENT IN VIEW OF THE DIRECTION OF THE ITAT SUPPORTING THE CLAIM THAT THE INTEREST WAS SHOWN AS INCOME IN THE HANDS OF THE PARTNERS. IN ABSENCE OF ASSESSMENT ORDER OR COMPUTATION OF INCOME IN CASE O F THE PARTNERS, THEIR CAPITAL ACCOUNT, BALANCE SHEET ETC., IT CANNOT BE SAID THAT THE INTEREST INCOME HAS ALREADY BEEN SHOWN IN THE HANDS OF THE PARTNERS. FOLLOWING THE DETAILED OBSERVATION OF T HE ITAT, IT IS HELD THAT THE LD AO HAS RIGHTLY ADDED THE INTEREST INCOME IN THE HANDS OF T HE FIRM FOR BOTH THE ASSESSMENT YEARS IN APPEAL. HOWEVER, AT LATER STAGE, IF THE AS SESSEE CAN PROVE WITH ANY DOCUMENTARY EVIDENCE THAT THE PARTNERS HAVE ALSO IN CLUDED THE INTEREST INCOME IN THEIR HANDS, SAME MAY BE EXCLUDED THERE FROM, AS DIRECTED BY THE ITAT. AS PER CBDT CIRCULAR THE CREDIT FOR THE TAX DEDUCTED AT SOURCE HAS TO BE ALLOWED IN THOSE CASES IN WHICH THE INCOME IS ASSESSED. SINCE THE INTEREST IN COME HAS BEEN HELD TO BE ASSESSABLE IN THE HANDS OF THE FIRM, THE AO SHALL ALSO GIVE CR EDIT OF THE TDS IN THE SAME HANDS AFTER WITHDRAWING THE DEDUCTION OF TDS THE HANDS OF THE PARTNERS AS WELL AS THE ADDITION. 3.1. KEEPING IN VIEW OF THE ABOVE, WE DISMISS T HE APPEALS OF ASSESSEE. 4. IN ITA NO.108/KOL/2010 ASSESSEE HAS RAISED THE ISSUE WHICH RELATES TO LEVYING OF PENALTY ARISING ON THE TREATMENT OF THE ABOVE I NTEREST ISSUE. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF MATERIALS AVAILABLE ON RECORD, IT IS OBSERVED THAT ASSESSEE HAS NEITHER APPEARED BEFORE AO NOR BEFORE LD. CIT(A) IN ORDER TO SUBSTANTIATE ITS CLAIM. THEREFOR E, IN THE INTEREST OF JUSTICE, WE SET ASIDE THIS ISSUE TO THE FILE OF AO TO DECIDE THE SA ME AFRESH AS PER LAW AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO ASSESSEE. 6. IN THE RESULT ITA NO.107 AND 109/KOL/2010 ARE DISMISSED AND ITA NO.108/KOL/2010 IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 23.09.2011. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 23.09.2011. R.G.(.P.S.) 3 #5 0 .8 9#8):- COPY OF THE ORDER FORWARDED TO: 1. M/S.SUNSHINE SCHOOL, BANK ROAD, KURSEONG, DARJEELIN G, WEST BENGAL. 2 THE A.C.I.T., CIRCLE-2, SILIGURI 3. THE CIT, 4. THE CIT(A)-SILIGURI 5. DR, KOLKATA BENCHES, KOLKATA /8 ./ TRUE COPY, #5'2/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES