Smt. Vinita Singhania, Kolkata V. DCIT, Central Circle - VI, Kolkata, Kolkata

ITA 120/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48266 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 19-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D R SINDHAL
• Assessee Lawyers: S K LAHIRI
• Keywords: Assessment record; Revised return
• Section: 143(3)

Judgement Text

, , , , , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ . . . . . .. . , , ! ! ! ! , ] [BEFORE HONBLE SHRI S.V. MEHROTRA, AM & HONBLE SHRI MAHAVIR SINGH, JM !' !' !' !' / I.T.A. NO. 120/KOL/2011 #$ %& #$ %& #$ %& #$ %&/ // / ASSESSMENT YEAR : 2006-07 SMT. VINITA SINGHANIA -VS.- DY. COMMISSIONER OF INCOME TAX, CENTRAL KOLKATA. CIRCLE-VI, KOLKATA [PAN : AJWPS 32 42 B] [ () /APPELLANT] [ *+()/ RESPONDENT] () / FOR THE APPELLANT : , /SHRI S. K. LAHIRI *+() / FOR THE RESPONDENT : , / SHRI D.R. SINDHAL - /O R D E R [ . . , ] PER S.V. MEHROTRA, AM THE ASSESSEE HAS FILED THIS APPEAL FOR ASSESSMENT Y EAR 2006-07 AGAINST ORDER OF CIT, CENTRAL-I, KOLKATA DATED 24.1.2010 U/S. 263 OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSMENT WAS COMPLETED U/S. 143(3) ON 15.12.2008, INTER ALIA, ALLOWING DEDUCTION IN RESPECT OF INTEREST PAY MENT TO CITY BANK OF RS.6,23,017/-. THE LD. CIT, ON SCRUTINY OF ASSESSMENT RECORDS, NOTICED THA T THE DEDUCTION HAD NOT BEEN CLAIMED IN THE RETURN OF INCOME BUT WAS MADE BY FILING A LETTER DU RING ASSESSMENT PROCEEDINGS. THE LD. CIT CONCLUDED THAT IN VIEW OF DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT [2006] 284 ITR 323 (SC), ASSESSING OFFICER WAS NOT CORRECT IN ENTERTAINING THE CLAIM OF DEDUCTION OF INTEREST ON THE BASIS OF APPLICATION. HE, ACCORDINGLY, SET ASIDE THE ASSESSMENT ORDER AND DIRECTED THE ASSESSING OFFICER TO COMPLETE THE ASSESSMENT AS PER LAW. 3. LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE DECISION IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA) IS NOT APPLICABLE TO TH E FACTS OF THE CASE BECAUSE IN THE PRESENT CASE, ASSESSING OFFICER HAS ACCEPTED THE ASSESSEES CLAIM WHEREAS IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA), ASSESSING OFFICER HAD REFUSED TO ACCEPT TH E ASSESSEES CLAIM MADE BY A LETTER. LD. COUNSEL SUBMITTED THAT IT IS REVERSE CASE THAN THAT OF GOETZE (INDIA) LTD. (SUPRA). HE FURTHER [ITA NO. 120/KOL/2011] 2 SUBMITTED THAT ASSESSING OFFICER HAS POWER TO MAKE AN ORDER OF ASSESSMENT AFTER TAKING INTO CONSIDERATION ALL RELEVANT MATERIAL WHICH HE HAS G ATHERED AS EMBEDDED IN SECTION 143(3) CLAUSE (II). LD COUNSEL REITERATED THE SUBMISSIONS MADE BE FORE LD. CIT. HE POINTED OUT THAT IN CASE OF CIT VS. MAHALAXMI SUGAR MILLS CO. LTD. [1986] 160 I TR 920 (SC), IT HAS BEEN OBSERVED BY HONBLE SUPREME COURT AT PAGE 928 THAT EVEN NO CLAIM IS MADE BY THE ASSESSEE, ITO SHOULD HIMSELF CONSIDER IT IN SUITABLE CASES. 4. LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE DE CISION OF HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT [2006] 284 ITR 323 (SC). HE POINTED OUT THAT LD. CIT HAS DISCUSSED ALL THE SUBMISSIONS MADE BEFORE HIM. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. THE ASSESSING OFFICER HAD ALLOWED INTERES T EXPENSES AMOUNTING TO RS.6,23,017/- ON THE BASIS OF LETTER DATED 25.10.2008 FILED BY THE ASSES SEE. THE ISSUE IS WHETHER SUCH CLAIM COULD BE ENTERTAINED BY THE ASSESSING OFFICER WITHOUT THERE BEING ANY REVISED RETURN TO THIS EFFECT OR NOT. HONBLE SUPREME COURT AFTER CONSIDERING THE DECISIO N IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT [1998] 229 ITR 383 (SC) RELIED UPON B Y THE ASSESSEE OBSERVED AS UNDER :- THE DECISION DOES NOT IN ANY WAY RELATE TO THE PO WER OF THE ASSESSING OFFICER TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE BY FILING A REVISED RETURN THE SUBMISSIONS OF LD. COUNSEL WITH REFERENCE TO PR OVISIONS U/S. 143(3)(II) ARE MIS-CONCEIVED BECAUSE THE SAID SECTION DEALS WITH THE POWER OF AS SESSING OFFICER REGARDING GATHERING OF EVIDENCE AND ITS EVALUATION. BUT THE SAID SECTION D OES NOT GIVE ANY POWER TO ASSESSING OFFICER TO ENTERTAIN A CLAIM WITHOUT THERE BEING ANY REVISED R ETURN. THE DECISION IN THE CASE OF MAHALAXMI SUGAR MILLS CO. LTD. (SUPRA) ALSO CAN NOT BE APPLIE D TO THE FACTS OF THE CASE BECAUSE THE OBSERVATIONS OF HONBLE SUPREME COURT WERE WITH REF ERENCE TO THE PROVISIONS OF ACT AND NOT WITH REFERENCE TO FACTUAL ASPECT. HONBLE SUPREME COURT HAS HELD AT PAGE 928 AS UNDER :- LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED A NUMB ER OF CASES BEFORE US WHICH DEAL WITH THE APPLICATION OF THE INDIAN INCOM E-TAX ACT AND WHERE IT HAS BEEN HELD THAT FOR THE PURPOSE OF SUB-SECTION ( 1) OF SECTION 24 OF THAT ACT, INCOME WHICH DOES NOT FALL WITHIN THE PURVIEW OF THE ACT AT ALL CAN NOT BE SET OFF AGAINST A LOSS ARISING UNDER THE ACT. TH ESE ARE CASES WHICH ARE WHOLLY INAPPOSITE AND HAVE NO BEARING AT ALL UPON T HE ROLE PLAYED BY THE AGREEMENT. IT IS ALSO URGED THAT IT IS OPEN TO THE ASSESSEE TO CLAIM OR NOT TO CLAIM THE BENEFIT OF SECTION 24 OF THE ACT, AND THA T IF HE DOES NOT DO SO, NO QUESTION ARISES OF APPLYING SECTION 24. IN THE FIRS T PLACE, A PERUSAL OF THE ASSESSMENT ORDERS FOR THE TWO YEARS SHOWS CLEARLY T HAT THE ASSESSEE DID CLAIM A SET-OFF OF THE PAKISTAN DIVIDEND AGAINST TH E LOSSES OF THE INDIAN BUSINESS. IN THE SECOND PLACE, THERE IS A DUTY CAST ON THE INCOME TAX [ITA NO. 120/KOL/2011] 3 OFFICER TO APPLY THE RELEVANT PROVISIONS OF THE IND IAN INCOME-TAX ACT FOR THE PURPOSE OF DETERMINING THE TRUE FIGURE OF THE A SSESSEES TAXABLE INCOME AND THE CONSEQUENTIAL TAX LIABILITY. MERELY BECAUSE THE ASSESSEE FAILS TO CLAIM THE BENEFIT OF A SET-OFF, IT CANNOT RELIEVE T HE INCOME-TAX OFFICER OF HIS DUTY TO APPLY SECTION 24 IN AN APPROPRIATE CASE. THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F GOETZE (INDIA) LIMITED (SUPRA) SQUARELY COVERS THE PRESENT ISSUE. IN VIEW OF ABOVE DISCUSSI ON, WE CONFIRM THE ORDER OF LD. CIT(A). 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. - - - - . . . . / // / .# .# .# .# 0 0 0 0 1 11 1 2 2 2 2 ORDER PRONOUNCED IN THE COURT ON 15.07.201 1. SD/- SD/- [ ! ! ! ! , ] [ . .. . . .. . , ] [MAHAVIR SINGH] [S.V. MEH ROTRA] JUDICIAL MEMBER ACCOU NTANT MEMBER 2 2 2 2 / DATED : 15TH JULY, 2011. - 3 * 4 54%6 - COPY OF THE ORDER FORWARDED TO: 1. /APPLICANT- SMT. VINITA SINGHANIA, 7, COUNCIL HOU SE STREET, KOLKATA-700 001. 2 *+() / RESPONDENT : DY. COMMISSIONER OF INCOME TAX, CENT RAL CIRCLE -VI, 18, RABINDRA SARA NI, PODDAR COURT, KOLKATA-700 001. 3. -# / CIT 4. -# ( )/ CIT(A) 5. 0 * # / DR, KOLKATA BENCHES, KOLKATA [ +4 * / TRUE COPY] -#. / BY ORDER 7 / !8 /DEPUTY/ASSTT. REGISTRAR . [KKC 9: #;8 < /SR.PS]