D.C.I.T.-CC-2(1), Kolkata V. M/s Himadri Speciality Chemicals Ltd., Kolkata

ITA 1351/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9958 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 31-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 143(3); 115JB; 10B; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRI KOLKATA BENCH (B), KOLKATA [ BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHRI S.S. GODARA, JM ] I.T.A. NO. 1351/KOL/2019 ASSESSMENT YEAR: 2012-13 DCIT, CC 2(1), KOLKATA.....................................................................APPELLANT AAYAKAR BHAWAN, POORVA, 3 RD FLOOR, 110, SHANTIPALLY, E.M. BYPASS, KOLKATA 700 107. M/S. HIMADRI SPECIALITY CHEMICALS LTD....................RESPONDENT 23A, FORTUNE TOWER, 8 TH FLOOR, SUIT NO. 15, NETAJI SUBHAS ROAD, KOLKATA 700 001. [PAN: AAACH 7475 H] APPEARANCES BY: SHRI RADHEY SHYAM, CIT, DR APPEARING ON BEHALF OF THE REVENUE. MS. PUJA SOMANI, ACA APPEARING ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : DECEMBER 12, 2019 DATE OF PRONOUNCING THE ORDER : JANUARY 03, 2020 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ) THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) 20, KOLKATA DATED 06.03.2019. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF COAL TAR PITCH ETC. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 30.11.2012 DECLARING A TOTAL LOSS OF RS. 46,64,69,826/- AND BOOK PROFIT OF RS. 80,89,27,608/- U/S 115JB OF THE ACT. IN THE ASSESSMENT ORIGINALLY COMPLETED U/S 143(3) VIDE AN ORDER DATED 01.12.2016, THE TOTAL LOSS OF THE ASSESSEE COMPANY WAS DETERMINED BY THE AO AT RS. 23,14,14,360/- WHILE THE BOOK PROFIT U/S 115JB OF THE ACT WAS DETERMINED AT RS. 80,90,27,270/-. THE SAID ASSESSMENT WAS SUBSEQUENTLY SET ASIDE BY THE LD. PR. CIT, CENTRAL 1, KOLKATA VIDE AN ORDER DATED 28.03.2018 PASSED U/S 263 WITH THE DIRECTION TO THE AO 2 I.T.A. NO. 1322/KOL/2019 ASSESSMENT YEAR: 2013-14 M/S. PHONIX UDYOG PVT. LTD. TO MAKE A FRESH ASSESSMENT ON THE ISSUE OF FOREIGN EXCHANGE FLUCTUATION LOSS ON O/S ECB, PROVISION OF MARKED TO MARKET LOSS OF FOREIGN CURRENCY SWAPS AND DEDUCTION U/S 10B OF THE ACT. AS PER THE DIRECTION OF THE LD. PR. CIT, A FRESH ASSESSMENT WAS COMPLETED BY THE AO U/S 143(3)/263 OF THE ACT VIDE AN ORDER DATED 20.07.2018 DETERMINING THE TOTAL LOSS OF THE ASSESSEE COMPANY AT RS. 13,19,89,990/- AND BOOK PROFIT U/S 115JB AT RS. 110,82,61,299/-. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3)/263, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A). MEANWHILE THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. PR. CIT DATED 28.03.2018 PASSED U/S 263 CAME TO BE DISPOSED OF BY THE TRIBUNAL VIDE ITS ORDER DATED 05.09.2018 PASSED IN ITA NO. 813/KOL/2018 WHEREBY THE ORDER DATED 28.03.2018 PASSED BY THE LD. PR. CIT U/S 263 WAS SET ASIDE BY THE TRIBUNAL. WHEN THIS POSITION WAS BROUGHT TO THE NOTICE OF THE LD. CIT(A) BY THE ASSESSEE, THE LD. CIT(A) TREATED THE APPEAL OF THE ASSESSEE FILED AGAINST THE ORDER OF THE AO PASSED U/S 143(3)/263 AS INFRUSTUOUS AND DISMISSED THE SAME. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY CONTENDED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ORDER PASSED BY THE AO U/S 143(3)/263 OF THE ACT HAS BECOME NULLITY AS A RESULT OF THE ORDER DATED 05.09.2018 (SUPRA) PASSED BY THE TRIBUNAL SETTING ASIDE THE ORDER PASSED BY THE LD. PR. CIT U/S 263 ON 28.03.2018 AND CONSEQUENTLY THE PROCEEDINGS ARISING FROM THE SAID ORDER INCLUDING 3 I.T.A. NO. 1322/KOL/2019 ASSESSMENT YEAR: 2013-14 M/S. PHONIX UDYOG PVT. LTD. THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE AO DATED 20.07.2018 U/S 143(3)/263 BEFORE THE LD. CIT(A) HAS BECOME INFRUCTUOUS AS RIGHTLY HELD BY THE LD. CIT(A) IN HIS IMPUGNED ORDER. THE ASSESSMENT ORDER DATED 01.12.2016 PASSED BY THE AO U/S 143(3) THUS IS RESTORED BY THE ORDER OF THE TRIBUNAL DATED 05.09.2018 (SUPRA) AND THE SECOND ORDER DATED 20.07.2018 PASSED U/S 143(3)/263 HAS BECOME NON-EST WHICH IS LIABLE TO BE CANCELLED. WE, THEREFORE, FIND NO INFIRMITY IN THE IMPUGNED ORDER OF THE LD. CIT(A) TREATING THE APPEAL FILED BY THE ASSESSEE BEFORE HIM AGAINST THE ORDER PASSED BY THE AO U/S 143(3)/263 AS INFRUCTUOUS AND UPHOLDING THE SAME, WE DISMISS THIS APPEAL OF THE REVENUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD JANUARY, 2020. SD/- SD/- (S.S. GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 03/01/2020 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. HIMADRI SPECIALITY CHEMICALS LTD., 23A, FORTUNE TOWER, 8 TH FLOOR, SUIT NO. 15, NETAJI SUBHAS ROAD, KOLKATA 700 001. 2. DCIT, CC 2(1), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA