BDG Metal & Power Limited , Kolkata V. D.C.I.T,Circle-3(1), Kolkata

ITA 1151/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3490 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 14-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: TDS; Set aside
• Section: 40(a)(ia); 250; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA [BEFORE SHRI J. SUDHAKAR REDDY, HONBLE ACCOUNTANT MEMBER & SHRI ABY T. VARKEY, HONBLE JUDICIAL MEMBER] I.T.A. NO. 1151/KOL/2019 ASSESSMENT YEAR: 2012-13 BDG METAL & POWER LIMITED...............................APPELLANT 5 TH FLOOR HMP HOUSE 4, FAIRLIE PLACE KOLKATA 700 001 [PAN: AACCB 2298 Q] VS. DEPUTY COMMISSIONER OF INCOME TAX, CRICLE-3(1), KOLKATA.....................RESPONDENT APPEARANCES BY: NONE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SUPRIYO PAL, JCIT, SR. D/R, APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : OCTOBER 31 ST , 2019 DATE OF PRONOUNCING THE ORDER : NOVEMBER 27 TH , 2019 O R D E R PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 7, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 12/04/2019, FOR THE ASSESSMENT YEAR 2012-13, ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 7, KOLKATA WAS WRONG AND AGAINST THE FACT OF THE CASE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 7, KOLKATA WAS WRONG IN DISALLOWING RS. 9,03,414/- U/S 40 (A)(IA) OF THE IT ACT, 1961 ON ACCOUNT OF LEASE RENT PAYMENT MADE TO KOLKATA PORT TRUST. 3. THAT ON THE FACTS & CIRCUMSTANCES OF THE-CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-7 WAS WRONG IN ENHANCING THE AMOUNT OF DISALLOWANCE OF LEASE RENT PAYMENT TO KOLKATA PORT TRUST FROM RS. 9,03,414/- TO RS. 9,34,119/- TO THE TUNE OF RS. 30,705/- ON WHICH TAX RS. 3071/- WAS DEDUCTED & DEPOSITED FOR NON-DEDUCTION OF TDS. 4. FACTS & CIRCUMSTANCES OF THE CASE, THE APPELLANT MAY ALTER, ADD &: DELETE ANY OF THE GROUNDS ON OR BEFORE THE HEARING OF THE APPEAL. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS FILED AN APPLICATION SEEKING ADJOURNMENT. THE SAME IS REJECTED AS, IN OUR VIEW, THIS IS NOT A FIT CASE FOR GRANT OF ADJOURNMENT. UNDER THESE CIRCUMSTANCES, WE DISPOSE OFF THE CASE EX- PARTE REPRESENTATIVE. 3. HEARD THE LD. D/R. 4. GROUND NOS. 1 & 4 ARE GENERAL IN NATURE. 5. GROUND NO. 2 IS ON THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT. WE FIND THAT THE LD. CIT(A) HAS STATED THAT KOLKATA PORT TRUST IS ASSESSED KOLKATA WITH PAN NO. AAJK 0361 L, AND HENCE, THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT, COMES INTO PLAY. 5.1. UNDER THESE CIRCUMSTANCES, WE SET ASIDE THIS MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCO OFFICER SHALL EXAMINE AS TO INCOME FROM THE LEASE RENT PAYMENTS IN QUESTION, WHILE FILING ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR. 40(A)(IA) OF THE ACT, DOES NOT ARISE IN VIEW OF THE SECOND PROVISO TO THAT SECTION. THE ASSESSEE IS DIRECTED TO CO 6. GROUND NO. 3 IS CONSEQUENTIAL IN NATURE AND HENCE IT IS ALSO SET ASIDE TO THE FILE OF THE ASSESSING OFFICER AND ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE SD/- [ABY T. VARKEY] JUDICIAL MEMBER DATED : 27.11.2019 {SC SPS} 2 PARTE QUA THE ASSESSEE AFTER HEARING THE LD. DEPARTMENTAL GROUND NOS. 1 & 4 ARE GENERAL IN NATURE. GROUND NO. 2 IS ON THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT. WE FIND THAT THE LD. CIT(A) HAS STATED THAT KOLKATA PORT TRUST IS ASSESSED UNDER CIRCLE KOLKATA WITH PAN NO. AAJK 0361 L, AND HENCE, THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT, COMES INTO PLAY. UNDER THESE CIRCUMSTANCES, WE SET ASIDE THIS MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCO RDANCE WITH LAW. T HE ASSESSING AS TO WHETHER KOLKATA PORT TRUST, HAS OFFERED TO TAX THE INCOME FROM THE LEASE RENT PAYMENTS IN QUESTION, WHILE FILING ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR. IF SO, THEN THE QUESTION OF D ISALLOWANCE U/S 40(A)(IA) OF THE ACT, DOES NOT ARISE IN VIEW OF THE SECOND PROVISO TO THAT SECTION. THE ASSESSEE IS DIRECTED TO CO -OPERATE IN THE ASSESSMENT PROCEEDINGS. GROUND NO. 3 IS CONSEQUENTIAL IN NATURE AND HENCE IT IS ALSO SET ASIDE TO THE OF THE ASSESSING OFFICER AND ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 27 TH DAY OF NOVEMBER, 201 9 [ J. ACCOUNTANT MEMBER I.T.A. NO. 1151/KOL/2019 ASSESSMENT YEAR: 2012-13 BDG METAL & POWER LIMITED HEARING THE LD. DEPARTMENTAL GROUND NO. 2 IS ON THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT. WE FIND UNDER CIRCLE -35, KOLKATA WITH PAN NO. AAJK 0361 L, AND HENCE, THE SECOND PROVISO TO SECTION UNDER THESE CIRCUMSTANCES, WE SET ASIDE THIS MATTER TO THE FILE OF THE HE ASSESSING WHETHER KOLKATA PORT TRUST, HAS OFFERED TO TAX THE INCOME FROM THE LEASE RENT PAYMENTS IN QUESTION, WHILE FILING ITS RETURN OF INCOME ISALLOWANCE U/S 40(A)(IA) OF THE ACT, DOES NOT ARISE IN VIEW OF THE SECOND PROVISO TO THAT SECTION. GROUND NO. 3 IS CONSEQUENTIAL IN NATURE AND HENCE IT IS ALSO SET ASIDE TO THE IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9 . SD/- J. SUDHAKAR REDDY] ACCOUNTANT MEMBER C OPY OF THE ORDER FORWARDED TO: 1. BDG METAL & POWER LIMITED 5 TH FLOOR HMP HOUSE 4, FAIRLIE PLACE KOLKATA 700 001 2. DEPUTY COMMISSIONER OF INCOME TAX, CRICLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 3 OPY OF THE ORDER FORWARDED TO: BDG METAL & POWER LIMITED DEPUTY COMMISSIONER OF INCOME TAX, CRICLE -3(1), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 1151/KOL/2019 ASSESSMENT YEAR: 2012-13 BDG METAL & POWER LIMITED TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES