Kusumlata Sonthalia , Kolkata V. D.C.I.T.,C(C)-1(4), Kolkata

ITA 1190/KOL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3836 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-11-2020
• Assessment Year: 2010-2011
• Appeal Filed On: 16-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY SHANKAR CIT LD
• Assessee Lawyers: NIRAV SHETH FCA LD
• Section: 54F; 234B; 201; 119; 54; 263

Judgement Text

1 ITA NO . 119 0 /KOL/2019 AY 20 1 0 - 11 KUSUMLATA SONTHALIA IN THE INCOME TAX APPELLATE TRIBUNAL , A BENCH, KOLKATA [ BEFORE SHRI J.SUDHAKAR REDDY, AM AND SHRI PARTHA SARATHI CHOUDHURY , JM ] I.T.A. NO. 119 0 /KOL/2019 ASSESSMENT YEAR: 20 1 0 - 11 KUSUMLATA SONTHALIA PAN: AABPA8446Q VS. DCIT, C.C - 1(4), KOLKATA APP E LLANT RESPONDENT DATE OF HEARING (VIRTUAL) 03 - 11 - 2020 DATE OF PRONOUNCEMENT 05 - 11 - 2020 FOR THE APPELLANT SHRI NIRAV SHETH, FCA, LD.AR FOR THE RESPONDENT SHRI VIJAY SHANKAR, CIT, LD.DR ORDER PER SHRI PARTHA SARATHI CHOUDHURY, JM TH I S APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A) , 2 0, KOLKATA DATED 15 - 03 - 2019 FOR THE ASSESSMENT YEAR S 20 1 0 - 11 AS PER THE FOLLOWING GROUNDS OF APPEAL: - 1.T HAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSI NG OFFICER HAS ERRED IN DISALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 54 AND 54F OF THE ACT WHILE PASSING ORDER 263/154/153A/143(3) UNDER SECTION SINCE THE PARTICULARS RELATING TO DEDUCTION CLAIMED U/S SECTION 54 AND 54F OF THE ACT WERE ALREADY FORMING PART OF REGULAR BOOKS OF ACCOUNTS AND NO INCRIMINATING MATERIAL WHATSOEVER WERE FOUND DURING THE COURSE OF SEARCH. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER. 2.THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER HAS ERRED IN CONCLUDING THAT THE APPELLANT IS NOT ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 54 AND 54F OF THE ACT. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER. 2 ITA NO . 119 0 /KOL/2019 AY 20 1 0 - 11 KUSUMLATA SONTHALIA 3.THAT IN THE FACTS AN D CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER HAS ERRED IN LEVYING INTEREST UNDER SECTION 234A AND 234B AND/ OR THE CALCULATION OF TAX AND INTEREST THEREON IS INCORRECT. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER AND DELETE ALL OR ANY G ROUNDS OF APPEAL AT THE TIME OF HEARING. 2 . IN THIS CASE AT THE VERY OUTSET, AT THE TIME OF HEARING BEFORE US, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THERE WAS A N ORDER PASSED U/S. 263 OF THE ACT BY THE PR. CIT DATED 15 - 01 - 2018 AND THEREAFTER A CO NSEQUENTIAL ORDER WAS ALSO PASSED BY THE AO. MEANWHILE THE ASSESSEE HAD PREFERRED AN APPEAL AGAINST THE ORDER U/S 263 OF THE ACT BEFORE ITAT, KOLKATA AND THE TRIBUNAL VIDE ITS ORDER DATED 17 - 06 - 2020 FOR THE AY 2010 - 11 IN ITA NO. 1151/KOL/2018 (ASSESSEES OWN CASE) HAD QUASHED THE SAID ORDER , THEREBY GRANTING RELIEF TO THE ASSESSEE. IN SUCH SCENARIO, CONSEQUENTIAL ORDER PASSED BY THE AO ON THE BASIS OF SUCH ORDER U/S. 263 OF THE ACT HAS NO LEGS TO STAND AND THE SAME IS LIABLE TO BE QUASHED . THE LD. DR CON CEDED TO TH ESE FACTS AS SUBMITTED BY THE LD.AR OF THE ASSESSEE. 3 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS. WE FIND THAT THE TRIBUNAL VIDE IT S ORDER DATED 17 - 06 - 2020 PASSED IN ASSESSEES OWN CASE FOR THE AY 2010 - 11 (SUPRA) AGA INST THE ORDER U/S 263 OF THE ACT HAS PROVIDED RELIEF TO THE ASSESSEE THEREBY QUASHING THE REVISIONAL JURISDICTIONAL ORDER PASSED BY THE LD. PCIT . THE RELEVANT PARA IS EXTRACTED AS UNDER: - 13. WE ALSO NOTE THAT THE ASSESSING OFFICER HAS ADOPTED ONE OF THE COURSES PERMISSIBLE IN LAW AND EVEN IF IT HAS RESULTED IN LOSS TO THE REVENUE, THE SAID DECISION OF THE ASSESSING OFFICER CANNOT BE TREATED AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AS HELD BY HONBLE SUPREME COURT IN MALABAR INDUSTRIE S LTD VS. CIT (SUPRA). SINCE THE ORDER OF THE ASSESSING OFFICER CANNOT BE HELD TO BE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE, IN THE FACTS AND CIRCUMSTANCES NARRATED ABOVE, THE USURPATION OF JURISDICTION EXERCISING REVISIONAL JURISD ICTION BY THE PRINCIPAL CIT IS NULL IN THE EYES OF LAW AND, THEREFORE, WE ARE INCLINED TO QUASH THE VERY ASSUMPTION OF JURISDICTION TO INVOKE REVISIONAL JURISDICTION U/S. 263 BY THE PRINCIPAL CIT. 3 ITA NO . 119 0 /KOL/2019 AY 20 1 0 - 11 KUSUMLATA SONTHALIA 4. IN SUCH SCENARIO, THE CONSEQUENTIAL ORDER PASSED B Y THE AO IN RELATION TO THE ORDER U/S 263 OF THE ACT DOES NOT HAVE ANY LEGAL VALIDITY AND ACCORDINGLY, IT IS LIABLE TO BE QUASHED. WE ORDER ACCORDINGLY. 5 . IN THE RESULT, THE APPEAL OF ASSESSEE (ITA NO. 119 0 /KOL/2019 FOR THE AY 201 0 - 11 ) IS ALLOWE D . ORDER IS PRONOUNCED IN THE OPEN COURT ON 5 TH NOVEMBER , 2020 SD/ - SD/ - ( J.SUDHAKAR REDDY ) ( PARTHA SARATHI CHOUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 5 TH NOVEMBER, 2020 ** PP (SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. RESPE CTIVE APPELLANT /ASSESSEE : KUSUMLATA SONTHALIA 34 PANKAJ MULLICK SARANI, JAYANTIKA APARTMENT, 1 ST FL., KOLKATA - 19. 2 RESPONDENT /DEPARTMENT : DCIT, C.C 1(4), 110 SHANTIPALLY, AAYKAR BHAWAN POORVA, 3 RD FLOOR, KOLKATA 3. 4. 5. CIT(A), CIT - , DR, ITAT, KOLKATA . / TRUE COPY, BY ORDER, ASSISTA NT R E GISTRAR