Appeal details
Counselvise Citation
[2018] 125 COUNSELVISE.COM (IT) 0232 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 14 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
12-09-2018
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Assessment Year
2011-2012
Appeal Filed On
29-05-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER] I.T.A. NO.1174/KOL/2018 ASSESSMENT YEAR: 2009-10 I.T.A. NO.1175/KOL/2018 ASSESSMENT YEAR: 2010-11 & I.T.A. NO.1176/KOL/2018 ASSESSMENT YEAR: 2011-12 HINDUSTAN INDUSTRIES AND MINING CORPORATION..............................APPELLANT 218, BLOCK-J NEW ALIPORE KOLKATA 700 053 [PAN : AABFH 7045 P] VS. INCOME TAX OFFICER, WARD-3(2), KOLKATA.............................RESPONDENT APPEARANCES BY: SHRI ANANDA SEN, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI SATYAJIT MONDAL, ADDL. CIT, DR, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 29 TH , 2018 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 12 TH , 2018 O R D E R PER J. SUDHAKAR REDDY, AM :- THESE THREE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE BUT IDENTICAL ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) BURDWAN, KOLKATA, (HEREINAFTER THE LD. CIT(A)), DT. 27/03/2018, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEARS 2009-10, 2010-11 & 2011-12. 2. THOUGH THESE APPEALS ARE DIRECTED AGAINST SEPARATE ORDERS OF THE LD. CIT(A), FOR THE SAKE OF CONVENIENCE, THEY ARE HEARD TOGETHER AND DISPOSED OFF TOGETHER BY WAY OF THIS COMMON ORDER. 2 I.T.A. NO.1174/KOL/2018 ASSESSMENT YEAR: 2009-10 I.T.A. NO.1175/KOL/2018 ASSESSMENT YEAR: 2010-11 & I.T.A. NO.1176/KOL/2018 ASSESSMENT YEAR: 2011-12 HINDUSTAN INDUSTRIES AND MINING CORPORATION 3. ITA NO. 1174/KOL/2018 FOR THE ASSESSMENT YEAR 2009-10 & ITA NO. 1175/KOL/2018 FOR THE ASSESSMENT YEAR 2010-11, ARE ON THE ISSUE OF JURISDICTION U/S 154 OF THE ACT. 4. FOR THE ASSESSMENT YEAR 2009-10, THE ASSESSING OFFICER HAS PASSED AND ORDER U/S 154 OF THE ACT ON 05/05/2013, WHICH WAS CONFIRMED BY THE LD. CIT(A). THIS ORDER WAS PASSED PURPORTEDLY RECTIFYING THREE ISSUES. 4.1. THE FIRST ISSUE BEING THE DISALLOWANCE OF GENERAL EXPENSES. I FIND THAT IN THE ASSESSMENT ORDER DT. 30/12/2011, AT PAGE 3, IN THE BODY OF THE ORDER, THE ASSESSING OFFICER STATED THAT IT WOULD NOT BE UNJUSTIFIED AND UNREASONABLE IF THE GENERAL EXPENSES ARE DISALLOWED ON AN ADHOC BASIS AT 20% AND WHEREAS, WHILE COMPUTING THE DISALLOWANCE, HE DISALLOWED 15% OF THESE EXPENSES. THIS MISTAKE WAS CORRECTED IN THE PROCEEDINGS U/S 154 OF THE ACT. I FIND NO INFIRMITY IN THIS RECTIFICATION AS IT IS A MISTAKE APPARENT ON RECORD. 4.2. THE SECOND GROUND OF RECTIFICATION WAS THAT THE EXPENDITURE INCURRED BY THE ASSESSEE ON LAND FILLING, IS CAPITAL IN NATURE. THERE IS NO DISCUSSION, ON THIS ISSUE IN THE BODY OF THE ASSESSMENT ORDER. HENCE THE DISALLOWANCE CANNOT BE MADE U/S 154 OF THE ACT, AS IT IS DEBATABLE IN NATURE. THE CLAIM OF THE ASSESSEE IS THAT THE LAND IS FILLED UP, AFTER BLASTING AND EXCAVATING STONE. THUS, THIS DISALLOWANCE MADE U/S 154 OF THE ACT, IS DELETED. 4.3. THE THIRD ISSUE OF DISALLOWANCE IS U/S 36(1)(VA) OF THE ACT. THE DISALLOWANCE WAS MADE ON THE GROUND THAT THE DEPOSITS OF PF & ESI ACTS, WERE NOT MADE WITHIN THE DUE DATES SPECIFIED IN THE RESPECTIVE ENACTMENTS. NO DISCUSSION ON FACTS WAS MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER ON THIS ISSUE. THUS, THE DISALLOWANCE BY INVOKING PROCEEDINGS U/S 154, IS BAD IN LAW. HENCE, THIS DISALLOWANCE IS DELETED. THUS, THIS APPEAL OF THE ASSESSEE IN ITA NO. 1174/KOL/2018 FOR THE ASSESSMENT YEAR 2009-10, IS ALLOWED IN PART. 3 I.T.A. NO.1174/KOL/2018 ASSESSMENT YEAR: 2009-10 I.T.A. NO.1175/KOL/2018 ASSESSMENT YEAR: 2010-11 & I.T.A. NO.1176/KOL/2018 ASSESSMENT YEAR: 2011-12 HINDUSTAN INDUSTRIES AND MINING CORPORATION 5. ITA NO. 1175/KOL/2018 FOR THE ASSESSMENT YEAR 2010-11. THE SOLE DISALLOWANCE MADE U/S 154 OF THE ACT, VIDE ORDER DT. 08/05/2013, FOR THIS ASSESSMENT YEAR IS U/S 43B. NO DISCUSSION ON THIS ISSUE WAS MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. IN THE PROCEEDINGS U/S 154 OF THE ACT, THE ASSESSING OFFICER SCRUTINIZED THE CONTRIBUTION MADE BY THE ASSESSEE TOWARDS PF. SCRUTINY IS NOT ALLOWED U/S 154 OF THE ACT. WHAT CAN BE CORRECTED IS A MISTAKE APPARENT ON RECORD. AS IT IS NOT A MISTAKE APPARENT ON RECORD, I DELETE THIS DISALLOWANCE AND ALLOW THE APPEAL OF THE ASSESSEE IN ITA NO. 1175/KOL/2018 FOR THE ASSESSMENT YEAR 2010-11, IS ALLOWED IN PART. 6. ITA NO. 1176/KOL/2018 FOR THE ASSESSMENT YEAR 2011-12. THE SOLE ISSUE THAT ARISES FOR MY CONSIDERATION IS WHETHER, EXPENDITURE ON LAND INCURRED BY THE ASSESSEE FOR FILLING LAND WHERE EXTRACTION OF STONE AND CHIPS HAVE BEEN MADE AFTER BLASTING IS ALLOWABLE AS REVENUE EXPENDITURE. IT WAS ALSO SUBMITTED THAT SUCH FILLING UP OF LAND IS MANDATORY AND DOES NOT GIVE THE ASSESSEE ANY ENDURING BENEFIT. BOTH THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A), DID NOT AGREE WITH THE CONTENTIONS OF THE ASSESSEE. IN MY VIEW, THE EXPENDITURE IN QUESTION IS IN THE REVENUE FIELD. THE NATURE OF THE BUSINESS OF THE ASSESSEE IS TO BLAST THE LAND AND EXTRACT STONE AND CHIPS. THE EXPENDITURE INCURRED ON FILLING CAVITIES CAUSED IN THE LAND IS IN THE REVENUE FIELD. HENCE, WE DIRECT THE ASSESSING OFFICER TO ALLOW THE SAME. ACCORDINGLY THE APPEAL OF THE ASSESSEE IN ITA NO. 1176/KOL/2018 FOR THE ASSESSMENT YEAR 2011-12, IS ALLOWED. 7. IN THE RESULT, ITA NO. 1174/KOL/2018 FOR THE ASSESSMENT YEAR 2009-10, IS ALLOWED IN PART. ITA NO. 1175/KOL/2018 FOR THE ASSESSMENT YEAR 2010-11, IS ALLOWED IN PART. ITA NO. 1176/KOL/2018 FOR THE ASSESSMENT YEAR 2011-12, IS ALLOWED. KOLKATA, THE 12 TH DAY OF SEPTEMBER, 2018. SD/- [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 12.09.2017 {SC SPS} 4 I.T.A. NO.1174/KOL/2018 ASSESSMENT YEAR: 2009-10 I.T.A. NO.1175/KOL/2018 ASSESSMENT YEAR: 2010-11 & I.T.A. NO.1176/KOL/2018 ASSESSMENT YEAR: 2011-12 HINDUSTAN INDUSTRIES AND MINING CORPORATION COPY OF THE ORDER FORWARDED TO: 1. HINDUSTAN INDUSTRIES AND MINING CORPORATION 218, BLOCK-J NEW ALIPORE KOLKATA 700 053 2. INCOME TAX OFFICER, WARD-3(2), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES
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