West-Bengal Power Development Corporate Ltd. , Kolkata V. DCIT,Cir-4(2), , Kolkata

ITA 195/KOL/2023

AI Insights

The case involves The West Bengal Power Development Corporation Limited appealing against the order of the Commissioner of Income Tax (Appeals), which upheld various disallowances and additions made by the Assessing Officer under different sections of the Income Tax Act. The primary contention was the alleged lack of opportunity given to the assessee to present its case, leading to an ex-parte order by the CIT(A). The Tribunal found merit in the assessee's request for another opportunity to present its case and thus remanded the matter back to the CIT(A) for a fresh examination.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122972 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 18-07-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 09-03-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RISHAV NARENDRA
• Keywords: Depreciation; TDS
• Section: 68; 263; 43B; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH “A” KOLKATA BEFORE SHRI RAJESH KUMAR, HON’BLE ACCOUNTANT MEMBER AND SHRI SONJOY SARMA, HON’BLE JUDICIAL MEMBER ITA No. 195/KOL/2023 Assessment Year: 2010-11 The West Bengal Power Development Corporation Limited Bidyut Unnayan Bhaban, Plot No. 3/C, Block LA, Sector-III, Salt Lake City, Kolkata-700098. PAN: AABCT 3027 C Vs. DCIT, Circle-4(2), Kolkata (Appellant) (Respondent) Present for: Appellant by : Shri Anuj Musaddi, CA & Shri Rishav Narendra, AR Respondent by : Shri Sunil Kumar Agarwal, CIT, DR Date of Hearing : 19.07.2023 Date of Pronouncement : 19.07.2023 O R D E R PER SONJOY SARMA, JM: This appeal by the assessee for the Assessment Year 2010-11 is directed against the order dated 11.01.2023 passed by the ld. CIT(A), NFAC, Delhi. The assessee has raised following grounds of appeal: 1(a). On the facts and In the circumstances of the case and in law, the Ld. CIT(Appeals) erred in upholding additions/disallowances made by the Ld. AO under the provisions of the Act in the order under section 143(3)/ 263 of the Act. 1(b). On the facts and In the circumstances of the case and in law, the Ld. CIT(Appeals) erred in not considering the submission dated 16 August 2018 filed by the Appellant before the Ld. Commissioner of Income Tax (Appeals)-2, Kolkata and passing the Order stating that the Appellant has not complied with the notices of hearing, thereby Tendering the order unjust and illegal: 2(a). Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) grossly erred in upholding the disallowance of depreciation of Rs 21,30,15,951 made by the Ld. AO under section 32(1) of the Act on account of non-production of documentary evidences for capitalization of Capital Spares, Office Equipment or Building Township. 2(b). On the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals)/ Ld. AO grossly erred in not considering that the aforesaid ITA No.195/KOL/2023 The West Bengal Power Development Corporate Limited A.Y. 2010-11 2 book depreciation of Rs 21,30,15,951 (included in book depreciation of Rs 3,88,14,58,529) is already added back by the Assessee in its computation of total income under the provisions of section 32(1) of the Act. 3. Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) wrongly confirmed the disallowance of Rs. 88,47,20,862 u/s 36(1)(va) and addition of the same to the total income u/s 2(24)(x) of the Act on the alleged ground that employees' contributions to Pension Fund were not deposited under the provisions of the Provident Fund Act 4. Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) 4 erred in confirming the disallowance of Rs. 13,26,18,099 made by the Ld. AO on account of provision made towards payment of gratuity under section 40A(7) of the Act 5. Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) wrongly confirmed the disallowance u/s 43B of the Act of Rs.32,95,20,360 on account of employer's contributions to pension fund holding that the amount was not paid within the due date of filing of return u/s 139(1) in spite of the fact that the said pension fund was established under the provisions of the P.F. Act, 1925 vide Notification dated 11.01.2007 and as per the first proviso of the Fourth Schedule, this part shall not apply to any provident fund to which the P.F. Act, 1925 applies. 6. Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) erred in confirming the disallowance of Rs. 11,70,04,409 made by the Ld. AO on account of provision made towards leave encashment under section 43B of the Act 7. Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals)/Ld. AO grossly erred both in fact and law in disallowing Rs.51,02,550 towards prior period adjustments 8. Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) erred in upholding the addition of Rs. 5,01,38,956 payable to financial institution under the head "Current liabilities and provision" by holding that interest accrued has become payable and the same had not been paid by the assessee 9. Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) erred ITA No.195/KOL/2023 The West Bengal Power Development Corporate Limited A.Y. 2010-11 3 in upholding the addition of Rs. 10,00,00,000 towards provision for shortfall of the revenue collection. 10. Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) erred in upholding addition for Rs. 367,33,62,800 towards arrear receivables under group sundry debtors for arrear transmission cost and APR adjustment of fixed cost even though the same has already been offered to tax by the Appellant 11(a). Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) grossly erred in upholding the addition of Rs. 133,84,11,346 towards purchase of fixed assets, treating the same as unexplained income u/s 68 of the Act. 11(b). On the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) grossly erred in upholding addition towards purchase of fixed assets without providing the basis of arriving at the amount of addition of Rs 133,84,11,346. 12. Without prejudice to Ground No. 1(b) above, on the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) erred in upholding the addition of Rs. 2,29,72,294 towards amount credited to the contingency reserve. 13. On the facts and in the circumstances of the case and in law, the Ld, CIT(Appeals)/ Ld. AO erred in allowing TDS Credit of Rs1,59,09,155 only instead of TDS Credit of Rs 2,29,72,466 claimed by the Appellant in its Income Tax Return. 2. Though the assessee has raised several grounds of appeal by contesting various disallowances and additions made by the AO sustained by the ld. CIT(A), we find that the ld. AR, primarily submitted before the bench that the ld. CIT(A) has passed an ex- parte order without granting sufficient opportunity to the assessee and on perusal of order of ld. CIT(A) we find that fair opportunities were indeed given to the assessee for representation of its case which was not complied by the assessee. The ld. AR before us prayed for one more opportunity may be given to appear before the ld. CIT(A) to represent its case properly. He is also assured that he ITA No.195/KOL/2023 The West Bengal Power Development Corporate Limited A.Y. 2010-11 4 will not take any adjournment before the ld. CIT(A) and would cooperate in the appellate proceeding. We find that the impugned order has been passed ex-parte by ld. CIT(A) and it is a fit case for remanding the appeal before the ld. CIT(A) to give one more opportunity to the assessee. We, therefore, remand back the whole issue to the file of ld. CIT(A). We also direct the assessee to cooperate with the ld. CIT(A) for expeditious disposal of the matter by not seeking any further adjournment except due to exceptional or unavoidable circumstances. In view of the above discussion, the various grounds raised by the assessee on merits are left open and remand back to the file of ld. CIT(A) for de novo adjudication. 3. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 19.07.2023 Sd/- Sd/- [Sd/- (RAJESH KUMAR) (SONJOY SARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Kolkata, Dated:19.07.2023 Biswajit Copy to: 1. The Appellant: The West Bengal Power Development Corporation Limited. 2. The Respondent: DCIT, Circle-4(2) Kolkata. 3. The CIT, 4. The CIT (A) 5. The DR //True Copy// [ By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata