Mr Sailesh Suraiya, Kolkata V. A.C.I.T Cir - 37,kolkata, Kolkata

ITA 1380/KOL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0485 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MADHU MALATI GHOSH
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER ITA NO. 1380 /KOL/ 2013 ASSESSMENT YEAR: 2008 - 09 MR. SAILESH SURAIYA 9, RABINDRA SARANI KOLKATA 700 073 [ PAN NO.A LQPS 9178 N ] / V/S . ACIT, CIRCLE - 37, PODDAR COURT, 18, RABINDRA SARANI, KOLKATA 700 001 / APPELLANT .. / RESPONDENT / BY APPELLANT NONE / BY RESPONDENT SMT. MADHU MALATI GHOSH, JCIT, SR - DR / DATE OF HEARING 04 - 06 - 2015 / DATE OF PRONOUNCEMENT 08 - 06 - 2015 / O R D E R THIS A PPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - XXIV KOLKATA DATED 29 - 12 - 2011 BY TAKING FOLLOWING GROUNDS OF APPEAL: - 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. C.I.T.(APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF RS.33,613/ - MADE BY THE ASSESSING OFFICER UNDER SECTION 14A READ WITH CLAUSE - III OF SUB RULE 2 OF RULE 8D OF THE I.T. RULES, 1962. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. C.I.T.(APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER OF DENYING TO THE APPELLANT REFUND OF RS.82,671/ - BEING TAX PAID BY THE APPELLANT BY WAY OF TDS AND ADVANCE TAX, IN EXCESS, THE TAX PAYABLE BY HIM. 2. SO FAR THE GROUND 1 RELATE TO THE DISALLOWANCE MADE U/S. 14A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) IS CONCERNED AFTER HEARING SUBMISSI ON OF LD. DR AND GOING THROUGH THE ORDERS OF TAX AUTHORITIES BELOW. NOBODY APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH NOTICE WAS DULY SERVED TO THE ASSESSEE. I NOTED ITA NO. 1380 /KOL /2013 A.Y. 2008 - 09 MR. SAILESH SURAIYA V. ACIT, CIR - 37 KOL. PAGE 2 THAT ASSESSING OFFICER HAS NOT RECORDED ANY SATISFACTION TO REJECT THE CLAIM OF ASSESS EE THAT ASSESSEE HAS NOT INCURRED ANY EXPENDITURE FOR THE EARNING OF THE DIVIDEND INCOME. THE AO INSTEAD OF APPLIED RULE 8D OF THE IT RULES, 1962 AND DISALLOWED A SUM OF 33,613/ - IN VIEW OF THE SPECIFIC PROVISION LAID DOWN U/S 14 A(2). IN MY OPINION, THE A O WAS BOUND HAVING REGARD TO THE ACCOUNTS OF THE ASSESSEE SATISFIED THAT ASSESSEE HAS NOT CORRECTLY CLAIMED THAT ASSESSEE HAS NOT INCURRED ANY EXPENDITURE IN RELATION TO THE INCOME WHICH DOES NOT FORM PART OF THE TOTAL INCOME UNDER THE INCOME TAX ACT. SINC E THE AO HAS NOT GIVEN ANY SUCH FINDING, I, THEREFORE DELETE THIS DISALLOWANCE. THUS, GROUND NO1 STANDS ALLOWED. 3. GROUND NO.2 , I NOTED THAT NOT ALLOWING THE CREDIT TO THE ASSESSEE IN RESPECT OF THE TAX DEDUCTED AT SOURCE (TDS FOR SHORT) AND ADVANCE TAX PAID BY THE ASSESSEE IN EXCESS TAX PAYABLE BY THE ASSESSEE. IN MY OPINION, THE TDS AS WELL AS ADVANCE TAX PAID BY ASSESSEE IS ONE OF THE MODE BY WHICH TAX HAS BEEN COLLECTED BY THE ASSESSEE. IF THE ASSESSEE FAILED TO CLAIM THE REFUND, THE REVALUE SHOULD AL LOW THE REFUND TO THE ASSESSEE. THE REFUND IN THIS CASE HAS ARISEN IN VIEW OF THE ASSESSMENT MADE THAT ASSESSEE NOT ON THE BASIS OF THE CLAIM MADE BY ASSESSEE. I ACCORDINGLY SET ASIDE THE ORDER OF CIT(A) AND DIRECT THE AO TO ALLOW THE CREDIT TO THE ASSESSE E IN RESPECT OF TDS AND ADVANCE TAX PAID BY ASSESSEE AND IN CASE THE TDS AND ADVANCE TAX PAID AND EXCESS TAX PAYABLE BY THE ASSESSEE, THE ASSESSEE SHOULD BE ALLOWED THE REFUND. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS STANDS ALLOWED. ORDER PRONO UNCED IN OPEN COURT ON 08 / 06 /201 5 SD/ - ( P.K. BANSAL ) ACCOUNTANT MEM BER KOLKATA, *DKP - 08 / 06 /201 5 ITA NO. 1380 /KOL /2013 A.Y. 2008 - 09 MR. SAILESH SURAIYA V. ACIT, CIR - 37 KOL. PAGE 3 / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT MR. SAILESH SURAIYA 9, RABINDRA SARANI, KOLL - 73 2 . / RESPONDENT ACIT, CIR - 37 PODDAR COURT, 18, RABINDRA SARANI, KOL - 01 3 . / CONCERNED CIT KOLKATA 4 . - / CIT (A) KOLKATA 5 . , / DR, ITAT, KOLKATA 6 . / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ,