DCIT, Circle-1(1), Kolkata, Kolkata V. M/s. Kilburn Office Automation Ltd., Kolkata

ITA 1861/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3567 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 18-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C J SINGH
• Assessee Lawyers: DILIP KUMAR PATNI
• Section: 234B; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) ITA NO. 1861/KOL/2017 ASSESSMENT YEAR: 2005-06 DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(1), KOLKATA.................................APPELLANT VS. M/S. KILBURN OFFICE AUTOMATION LTD..........................RESPONDENT SHANTINIKETAN, 15 TH & 16 TH FLOOR 8, CAMAC STREET KOLKATA 700 017 [PAN : AABCK 0869 P] APPEARANCES BY: SHRI DILIP KUMAR PATNI, CA, APPEARED ON BEHALF OF THE ASSESSEE . SHRI C.J. SINGH, JCIT SR. D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JANUARY 30 TH , 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 20 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 5, KOLKATA, (HEREINAFTER THE LD. CIT(A)), DT. 31/05/2017, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), RELATING TO ASSESSMENT YEAR 2014-15 ON THE FOLLOWING GROUNDS:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.1,34,33,250/- IGNORING THE PROVISIONS CONTAINED IN SECTION 50B OF THE I.T. ACT, 1961. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS LAWFULLY CORRECT IN REDUCING THE TAXES PAID IN SUBSEQUENT YEARS FROM TAX TO BE RE-COMPUTED IN RESPECT OF THIS YEAR. 2. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE LD. CIT(A) AT PARA 1.4 AND 1.5 OF HIS ORDER HELD AS FOLLOWS:- 1.4. AS THE SAID AMOUNT FORMING PART OF THE CAPITAL GAIN HAS ALREADY BEEN OFFERED TO TAX IN THE FOLLOWING 2 YEARS AND THERE IS LEGAL DIFFICULTY IN CLAIMING OR GRANTING REFUNDS IN CONSEQUENCE TO GIVING EFFECT TO THE PRESENT APPELLATE DECISION HOLDING RS.1,34,33,250/- AS CHARGEABLE IN THE CURRENT YEAR A.Y. 2005-06, TO SAFEGUARD THE APPELLANT FROM DOUBLE TAXATION OF THE SAME AMOUNT, THE A.O. IS DIRECTED TO COMPUTE THE TAX ON THE PORTION OF THE CAPITAL GAIN BEING R.1,34,33,250/- AND REDUCE FROM THE SAID TAX, THE TAXES ALREADY PAID ON THE SAID AMOUNT IN F.YRS. 2005-06 AND 2006-07. THESE 2 ITA NO. 1861/KOL/2017 ASSESSMENT YEAR: 2005-06 M/S. KILBURN OFFICE AUTOMATION LTD ADJUSTMENTS ARE EXPECTED TO RESULT IN ZERO ADDITIONAL TAX ON THE MOUNT TREATED AS SUBJECT TO TAX IN THE CURRENT YEAR. BUT THE INTEREST U/S. 234B MAY HAVE TO BE IMPOSED FROM 01.04.2005 TO THE DATES WHEN THE TAX ON THE CAPITAL GAIN OF RS.1,34,33,250/- WAS PAID IN F.YRS. 2005-06 AND 2006-07. 1.5. THE GROUND IS TREATED AS NOT ALLOWED . BUT THE ADJUSTMENT FOR TAX PAID HAS TO BE MADE IN TERMS OF PARA 1.4. ABOVE. (EMPHASIS OURS) 3. FROM THE ABOVE IT CAN BE SEEN THAT THE LD. CIT(A) HAS TREATED THE GROUND AS NOT ALLOWED. THUS, THE REVENUE SHOULD NOT HAVE ANY GRIEVANCE SO AS TO FILE THIS APPEAL. WHEN THIS WAS POINTED OUT, THE LD. D/R COULD NOT POINT THE GRIEVANCE OF THE REVENUE. UNDER THESE CIRCUMSTANCES, WE HAVE NO OTHER ALTERNATIVE BUT TO DISMISS THIS GROUND OF THE REVENUE AS MISCONCEIVED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. KOLKATA, THE 20 TH DAY OF FEBRUARY, 2019. SD/- SD/- [ S.S. GODARA ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20.02.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. M/S. KILBURN OFFICE AUTOMATION LTD SHANTINIKETAN, 15 TH & 16 TH FLOOR 8, CAMAC STREET KOLKATA 700 017 2. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(1), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES