ACIT, Circle - 2, Burdwan, Burdwan V. M/s. Paschimbanga Gramin Bank, Burdwan

ITA 1602/KOL/2010

• Counselvise Citation: 160223514 RSA 2010
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 11-08-2010
• Court: TRIBUNAL
• Department Lawyers: H N SINGH LD
• Assessee Lawyers: SANDIP GHOSH LD
• Keywords: Depreciation
• Section: 263; 143(3)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BE NCH B, KOLKATA () BEFORE . .. . . .. . , , , , , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . . . . ! !! ! . . . . ' '' ' ) ) ) ) !# B.K.HALDAR, ACCOUNTANT MEMBER . $ $ $ $ / ITA NO . 1602 /KOL/2010 %& '(/ ASSESSMENT YEAR : 2003-04 ASSTT. COMMISSIONER OF INCOME-TAX VS. M/S. PASCH IMBANGA GRAMIN BANK CIRCLE-2, BURDWAN PAN: AAAJB 0530A *+ /APPELLANT ,-*+ /RESPONDENT *+ . / !/ FOR THE APPELLANT: SHRI H.N SINGH, LD.DR ,-*+ . / !/ FOR THE RESPONDENT: SHRI SANDIP GHOSH, LD.AR !0 / ORDER . . . . ! !! ! . . . . ' ' ' ') )) ) , , , , !# SHRI B.K.HALDAR, AM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), ASANSOL DATE D 07-05-2010 FOR THE ASSESSMENT YEAR 2003-04. 2. THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEA L:- (I) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE LD. CIT(A) HAS ERRED IN CANCELING THE PENALTY IMPOS ED U/S. 271(1)( C) ON THE GROUND THAT THE ASSESSMENT ORDER FROM WHERE THE PENALTY ORDER HAS ARISEN WAS CANCELLED U/ S.263 OF THE I.T.ACT, 1961. (II) THAT LD. CIT(A) OUGHT TO HAVE CONFIRMED THE P ENALTY WHICH WAS IMPOSED U/S.271(1)(C) WITH REFERENCE TO THE DISALLOWANCE OF DEPRECIATION ON NON-SLR INVESTMENT SINCE CONFIRMED BY THE LD.ITAT. (III) THAT LD.CIT(A) WHILE CANCELING THE PENALTY, O UGHT TO HAVE CONSIDERED THAT THE MATTER DECIDED IN APPEAL C ANNOT BE CONSIDERED BY THE COMMISSIONER U/S.263 AND THEREFOR E THE ASSESSMENT ORDER MAKING THE DISALLOWANCE OF DEPRECI ATION SUBSISTED. (IV) THAT ON THE FACTS AND THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE LEG AL PROVISION THAT THE DIRECTION GIVEN ORDER U/S 263 IS LIMITED ONLY TO THE ISSUE OF NON-SLR INCOME WHICH INCOME CHARGEA BLE TO TAX WITHOUT BEING SUBJECTED TO THE DEDUCTION UNDER 80P(2)(A)(I) OF THE ACT AND THE ISSUE ON WHICH THE PENALTY ORDER UNDER 271(L)(C) HAS BEEN LEFT UNTOUCHED BY TH E ORDER U/S 143(3) READ WITH 263 OF THE ACT. 3. PENALTY U/S.271(1)( C) AMOUNTING TO RS.7,65,702 /- WAS LEVIED BY THE AO ON A/C OF DISALLOWANCE OF CLAIM OF DEPRECIATION ON NON-SLR IN VESTMENT AND EXCESS PROVISION FOR BAD DEBT, WHICH WERE UPHELD BY THE TRIBUNAL. 4. ON APPEAL BEFORE THE LD.CIT(A), THE LD.CIT(A) D ELETED THE IMPUGNED PENALTY ON THE GROUND THAT THE ORIGINAL ASSESSMENT ORDER DID NOT EXIST AS THE SAME WAS SET ASIDE BY THE LD.CIT U/S.263 OF THE ACT ON 31-12-08 AND THE ASSESSEE GOT RELIEF VIDE ITATS ORDER DATED 17-09-2009 PASSED IN ITA NOS. 1346, 1347 & 1 348/KOL/2009. THE LD.CIT(A) TOOK SUPPORT OF CBDTS CIRCULAR NO.87(F NO.245/25/71-A & PAC) DATED 19-06-1972. 5. AGGRIEVED THE REVENUE HAS FILED APPEAL BEFORE TH E TRIBUNAL. 6. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . THE CONTENTION RAISED BY THE REVENUE, THAT THE ADDITIONS ON WHICH THE PENALTY U/ S.271(1)( C) HAS BEEN LEVIED BY THE AO WERE UPHELD BY THE TRIBUNAL, HAS NOT BEEN DISPUTED BY THE ASSESSEE. AS SUCH THE LD.CITS JURISDICTION U/S.263 CANNOT INCLUDE ISSUES DISPUTED IN APPEAL. THUS, IT APPEARS THAT THE LD.CIT(A) HAS GIVEN THE IMPUGNED RELIEF WITHOUT CON SIDERING THE FACTS AND CIRCUMSTANCES OBTAINED IN THE PRESENT CASE. IN THIS VIEW OF THE M ATTER, WE SET ASIDE THE IMPUGNED ORDER OF THE LD.CIT(A) AND REMIT THE MATTER BACK TO HIS F ILE WITH THE DIRECTION THAT A FRESH ORDER BE PASSED AS PER LAW AFTER TAKING INTO CONSIDERATI ON THE RELEVANT FACTS ON RECORD. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 11-04-2011 SD/- SD/- . .. . . .. . , , , , B.R.MITTAL, JUDICIAL MEMBER . . . . ! !! ! . . . . ' ' ' ' , ! !! !# # # # , B.K.HALDAR, ACCOUNTANT MEMBER. ( (( (1# 1# 1# 1#) )) ) DATE:11-04-2011. !0 . ,2 3!2'4- COPY OF THE ORDER FORWARDED TO: 1. THE ASSTT. COMMISSIONER OF INCOME-TAX, CIR-2,BWN, C OURT COMPOUND, BWN. 2 M/S. PASCHIMBANGA GRAMIN BANK, CHOWDHURY MARKET, KA LNA ROAD, BURDWAN-713101. 3. THE CIT, 4. THE CIT(A)- 5. DR, KOLKATA BENCHES, KOLKATA -2 ,/ TRUE COPY, !0%:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES *PP SR.PS