ACIT, LTU - 1, Kolkata, Kolkata V. M/s. United Bank of India, Kolkata

ITA 1970/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4499 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 04-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI
• Assessee Lawyers: SOUMITRA CHOW DHURY
• Keywords: Rectification of order
• Section: 143(3); 244A; 115JB; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & HONBLE S HRI S.S.VISWANETHRA RAVI, JM] I.T.A NOS. 1970&1971/ KOL/2017 ASSESSMENT YEARS : 2004- 05 & 2006-07 ACIT, LTU-1, KOLKATA -VS- M/S UNITED BANK OF INDIA [PAN: AAACU 5624 P] (APPELLANT) (RESPONDE NT) I.T.A NO. 1975/KOL/20 17 ASSESSMENT YEAR : 2004-0 5 M/S UNITED BANK OF INDIA -VS- ACIT, LTU-1, KOLKA TA [PAN: AAACU 5624 P] (APPELLANT) (RESPONDE NT) FOR THE DEPARTMENT : SHRI P.K. SRIHARI , CIT(DR) FOR THE ASSESSEE : SHRI SOUMITRA CHOWDHURY , ADVOCATE DATE OF HEARING : 07.08.2018 DATE OF PRONOUNCEMENT : 10.08.2018 ORDER PER M.BALAGANESH, AM 1. THE APPEAL OF THE ASSESSEE IN ITA NO. 1975/KOL/2 017 FOR THE ASSESSMENT YEAR (IN SHORT THE ASST YEAR) 2004-05 ARISE OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 17, KOLKATA [ IN SHORT THE L D CITA] IN APPEAL NO. 273/CIT(A)- 17/KOL/15-16 DATED 12.6.2017 PASSED AGAINST THE REC TIFICATION ORDER PASSED BY THE 2 ITA NOS.1970,1971&1975/KOL/2017 M/S UNITED BANK OF INDIA A.YRS. 2004-05&2006-07 2 LEARNED DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 6, KOLKATA [ IN SHORT THE LD AO] UNDER SECTION [ IN SHORT U/S] 154/254/254/251/143( 3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THE APPEALS OF THE REVENUE IN ITA NOS. 1970 & 1 971/KOL/2017 ARISE OUT OF THE SEPARATE ORDERS PASSED BY THE LD CITA IN APPEAL NOS . 09 & 07/CIT(A)-23/DCIT, CIR.- 6/16-17/KOL DATED 28.6.2017 FOR THE ASST YEARS 2004 -05 AND 2006-07 RESPECTIVELY PASSED AGAINST THE SEPARATE ORDERS OF ASSESSMENTS F RAMED BY THE LD AO U/S 254/254/251/143(3) OF THE ACT DATED 28.2.2013 FOR T HE ASST YEAR 2004-05 AND U/S 254/154/143(3) OF THE ACT DATED 28.2.2013 FOR THE A SST YEAR 2006-07. ALL THESE APPEALS ARE TAKEN UP TOGETHER AND DISPOSED OFF BY T HIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 1970/ KOL/2017 REVENUE APPEAL ASST YEAR 2004-05 3. THE ONLY ISSUE TO BE ADJUDICATED IN THIS APPEAL IS AS TO WHETHER THE PROVISIONS OF SECTION 115JB OF THE ACT ARE APPLICABLE TO THE ASSE SSEE BEING A BANKING COMPANY FOR THE ASST YEAR 2004-05. 3.1. THE LEARNED COUNSEL FOR THE ASSESSEE HAD FILE D ADJOURNMENT PETITION BEFORE US. SINCE THIS IS A COVERED CASE IN FAVOUR OF THE ASSES SEE, THE ADJOURNMENT PETITION WAS REJECTED BY THE BENCH. WE FIND THAT THIS ISSUE IS COVERED BY THE CO-ORDINATE BENCH DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FO R THE ASST YEAR 2009-10 IN ITA NO. 1916/KOL/2012 WHEREIN THE RELIANCE WAS PLACED ON AN OTHER DECISION OF THIS TRIBUNAL IN THE CASE OF UCO BANK VS DCIT IN ITA NO. 1768/KOL/20 09 DATED 27.11.2015 FOR THE ASST YEAR 2002-03. IT WAS HELD THAT THE PROVISIONS OF SECTION 115JB OF THE ACT ARE NOT 3 ITA NOS.1970,1971&1975/KOL/2017 M/S UNITED BANK OF INDIA A.YRS. 2004-05&2006-07 3 APPLICABLE TO THE BANKING COMPANIES UPTO THE ASST Y EAR 2012-13. THERE HAS BEEN AMENDMENT IN SECTION 115JB OF THE ACT WITH EFFECT F ROM ASST YEAR 2013-14 WHICH HAS TO BE EXAMINED INDEPENDENTLY IN THE LIGHT OF THE AM ENDED PROVISIONS WITH REGARD TO THE APPLICABILITY OF BOOK PROFIT TAX ON THE BANKING COM PANIES. WE FIND THAT THE LD CITA HAD PLACED RELIANCE ON THE AFORESAID DECISIONS OF T HIS TRIBUNAL AND GRANTED RELIEF TO THE ASSESSEE, AGAINST WHICH THE REVENUE CANNOT HAVE ANY GRIEVANCE. HENCE RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS, WE DISMISS THE G ROUNDS RAISED BY THE REVENUE. 4. THE AFORESAID DECISION WOULD APPLY WITH EQUAL FO RCE FOR THE REVENUE APPEAL IN ITA NO. 1971/KOL/2017 FOR THE ASST YEAR 2006-07 ALSO. ITA NO. 1975/ KOL/2017 ASSESSEE APPEAL ASST YEAR 2004-05 5. WE FIND THAT THE LD CITA HAD OBSERVED IN HIS ORD ER THAT THE LD AO HAD MERELY ADOPTED THE BOOK PROFITS COMPUTED U/S 143(3) OF THE ACT DATED 29.12.2006. THE SUBJECT MATTER OF RECTIFICATION PROCEEDINGS U/S 154 OF THE ACT WAS ONLY WITH REGARD TO INCORRECT CALCULATION OF INTEREST U/S 244A OF THE ACT, AGAINS T WHICH THE ASSESSEE WAS AGGRIEVED AND AN APPEAL WAS PREFERRED BEFORE THE LD CITA. IN VIEW OF THESE FACTS, THE LD CITA OBSERVED THAT THE ISSUE OF APPLICABILITY OF MAT PRO VISIONS U/S 115JB OF THE ACT DOES NOT ARISE FROM THE IMPUGNED RECTIFICATION ORDER AND HENCE IT CANNOT BE A GROUND OF APPEAL AGAINST THE SAID RECTIFICATION ORDER. ACCOR DINGLY THE LD CITA DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. BUT WE FIND THAT THE LD CITA HAD RIGHTLY APPRECIATED THE FACTS AND C IRCUMSTANCES OF THE CASE AND WE HOLD THAT THE SAID ORDER DOES NOT CALL FOR ANY INTERFERE NCE. HENCE THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED IN ITA NO. 1975/KOL/2017 FOR ASST YEAR 2004-05. 4 ITA NOS.1970,1971&1975/KOL/2017 M/S UNITED BANK OF INDIA A.YRS. 2004-05&2006-07 4 6. IN THE RESULT, THE APPEALS OF THE REVENUE FOR AS ST YEARS 2004-05 AND 2006-07 ARE DISMISSED AND APPEAL OF THE ASSESSEE FOR ASST YEAR 2004-05 IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 10.08.2018 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BAL AGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 10.08.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. DCIT/ACIT, LTU-1, KOLKATA, 9 TH FLOOR, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, E.M. BYPASS, KOLKATA-700107. 2. M/S UNITED BANK OF INDIA, 16, OLD COURT HOUSE ST REET, DALHOUSIE, KOLKATA-700001. 3..C.I.T.(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S