M/S C & E Limited., Kolkata V. D.C.I.T. Cir - 12,kol, Kolkata

ITA 1670/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91919 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 15-11-2012
• Court: TRIBUNAL
• Department Lawyers: SANJAY
• Assessee Lawyers: SRIKUMAR BANERJEEM
• Keywords: Opportunity of being heard
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOLKATA [BEFORE HON BLE SHRI MAHAVIR SINGH, JM & HON BLE SHRI B.P.JAIN, AM ] I.T.A NO.1670 /KOL/2012 ASSESSMENT YEAR: 2006 - 07 M/S. C& E LIMITED VS. D.C.I.T., CIRCLE - 12, KOLKATA KOLKATA (APP ELLANT) ( RESPONDENT) (PAN: AACCC 5418 K) FOR THE APPELLANT : SHRI SRIKUMAR BANERJEEM FCA FOR THE RESPONDENT : SHRI SANJAY ADDL.CIT DATE OF HEARING : 10 .04 .2015. DATE OF PRONOUNCEMENT: 30.04.2015. ORDER PER SHRI B.P.JAIN, AM : THIS APPEAL OF THE ASSESSEE A RISES OUT OF THE ORDER OF LD.CIT (A) - XIX , KOLKATA DATED 19.09 .2012 FOR ASSESSMENT YEAR 2006 - 07. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN LAW AND IN FACT BY CONFIRMING THE DISALLOWING MADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF THE INTEREST ON TDS AMOUNTING TO RS.33,650/ - AS PENALTY THOUGH THE SAME AMOUNT WAS NOT DEBITED TO PROFIT AND LOSS ACCOUNT. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN LAW AND IN FACT BY CONFIRMING THE DISALLOWING MADE BY THE LEARNED ASSESSING OFFICER ON ACCOUNT OF OTHER INCOME AMOUNTING TO RS.36,55,052/ - AS ELIGIBLE INCOME FOR THE PURPOSE OF SECTION 80IB OF THE INCOME TAX ACT. 3. THAT THE APPEL LANT CAUSE LEAVE, TO ADD, ALTER, AMEND OR MODIFY AND OR ALL OF THE ABOVE GROUNDS OF APPEAL AT OR BEFORE THE TIME OF HEARING OF THE APPEAL. 3. AS REGARDS GROUND NO.1 T HE BRIEF FACTS OF THE CASE AS ARISING FROM AO S ORDER ARE REPRODUCED HEREIN BELOW : - 1 . INTEREST ON TDS IT IS SEEN THAT ASSESSEE HAS DEBITED RS.220/ - ON ACCOUNT OF INTEREST IN TDS OF RS.33,430/ - TOWARDS INTEREST TO CUSTOM AUTHORITY. BOTH EXPENSES BEING FOR VIOLATION/INFRACTION OF LAW, SAME IS BEING DISALLOWED. ITA NO. 1670/KOL/2012 M/S. C & E LIMITED A.YR. 2006 - 07 2 3.1. THE LD. CIT(A) CONFIRME D THE ACTION OF AO AND NECESSARY FINDINGS OF THE LD. CIT(A) ARE REPRODUCED HEREIN BELOW : - THE ASSESSEE S SECOND GROUND IS RELATED TO DISALLOWANCE OF RS.33,650/ - . IN THE ASSESSMENT ORDER IT IS STATED THAT THE ASSESSEE HAS DEBITED RS.220/ - ON ACCOUNT OF IN TEREST IN TDS OF RS.33,430/ - TOWARDS INTEREST TO CUSTOM AUTHORITY. BOTH EXPENSES BEING FOR VIOLATION/INFRACTION OF LAW, SAME IS BEING DISALLOWED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT WAS ARGUED BY THE LD.COUNSEL FO R THE ASSESSEE THAT THERE IS NO DEBIT OF RS.220/ - OR ANY INTEREST OF RS.33,430/ - OR RS.33,650/ - AND DISALLOWANCE IS MADE BY BOTH THE AUTHORITIES BELOW. ON THE OTHER HAND, THE LD. DR PRAYED TO REFER THE MATTER BACK TO THE FILE OF AO IN THE INTEREST OF JUSTI CE. 4.1. WE HAVE HEARD BOTH THE PARTIES. IN THE INTEREST OF JUSTICE WE SET ASIDE THE MATTER TO THE FILE OF AO. SINCE ON PERUSAL OF PROFIT AND LOSS ACCOUNT NO DEBIT OF RS.220/ - OR RS.33,430/ - IS APPEARING TOWARDS INTEREST TO CUSTOMS AUTHORITIES AND T HEREFORE NEITHER THE ORDER OF AO NOR CIT(A) IS A SPEAKING ORDER. ACCORDINGLY THE SAME IS SET ASIDE TO THE FILE OF AO TO PASS A SPEAKING ORDER AND DECIDE THE ISSUE AFRESH BY AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS GROUND NO.1 OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. 5. AS REGARDS GROUND NO.2 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE CLAIMED THE FOLLOWING INCOME AS ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT : SALE OF SCRAP 46,846.62 INTEREST FROM DEBTORS FOR L ATE PAYMENTS 32,15,383.00 INTEREST ON TERM DEPOSITS 51,817.72 INSURANCE CLAIM RECEIVED 19,919.00 PROFIT ON SALE OF FIXED ASSETS 25,394.00 PROFIT ON EXCHANGE FLUCTUATION 99,576.64 MISC.INCOME 1,81,371.79 SUNDRY BALANCE WRITTEN OFF 14,743.65 TOTAL 36,55,052.42 ITA NO. 1670/KOL/2012 M/S. C & E LIMITED A.YR. 2006 - 07 3 6. THE LD. COUNSEL OF THE ASSESSEE HAS MADE THE SUBMISSIONS BEFORE THE AO BUT THE SAME HAVE NOT BEEN CONSIDERED IN THE RIGHT PERSPECTIVE AND ACCORDINGLY THE LD. CIT(A) HAS ALSO NOT CONSIDERED THE SAM E IN THE RIGHT PERSPECTIVE. IN THE INTEREST OF JUSTICE THE MATTER IS SET ASIDE TO THE FILE OF AO, WHO WILL DECIDE THE ISSUE DE - NOVO AFTER CONSIDERING THE WRITTEN SUBMISSIONS OF THE ASSESSEE BUT BY AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSES SEE AND DECIDE THE ISSUE DE - NOVO. THUS GROUND NO.2 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCE D IN THE COURT ON 3 0.04.2015. SD/ - SD/ - [ MAHAV IR SINGH ] [ B.P.JAIN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE : 30.04.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . M/S. C & E LIMITED, 2 ND FLOOR, 95, PARK STREET, KOLKATA - 700016. 2 D.C.I.T., CIRCLE - 12 , KOLKATA. 3 . CIT(A) - XIX , KOLKATA 4. CIT KOLK ATA 5. CIT(DR)KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES