Kankani Construction (P) Ltd., Hooghly V. JCIT(OSD), Circle - 4, Kolkata, Kolkata

ITA 2023/KOL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1753 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 12-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJOY MUKHERJEE CIT DR REV
• Section: 43B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, HONBLE A CCOUNTANT M EMBER ] I.T.A. NO. 2023 /KOL/201 7 ASSESSMENT YEAR: 20 0 9 - 10 KANKANI CONSTRUCTION (P) LTD. . . ...... . . ... APPELLANT C/O. S.N. GHOSH & ASSOCIATES, ADVOCATES SEVEN BROTHERS LODGE P.O. BUROSHIBTALA P.S. CHINSURAH DIST. HOOGHLY PIN - 712 105 [PAN : AABCK 4191 Q ] J .C.I.T .(OSD) CIRCLE - 4 , KOLKATA . .. ... RESPONDENT AAYAKAR BHAWAN P - 7, CHOWRINGHEE SQUARE 8 TH FLOOR KOLKATA 700 069 APPEARANCES BY: SHRI SOMNATH GHOSH, ADVOCATE , APPEAR ED ON BEHALF OF THE ASSESSEE. SHRI SANJOY MUKHERJEE, ADDL. CIT , DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 28 TH , 2017 DATE OF PRONOUNCING THE ORDER : JANUARY 19 TH , 201 8 O R D E R PER J. SUDHAKAR REDDY : - THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 2 , KOLKATA , (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 01 / 06 /201 7 , FOR THE ASSESSMENT YEAR 20 0 9 - 10 . 2. THERE IS DELAY OF 8 DAYS IN FILING OF THE APPEAL. ON PERUSAL OF THE PETITION FILED FOR CONDONATION OF DELAY, I AM CONVINCED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM FILING THE APPEAL IN TIME. THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED. 3. AFTER HEARING RIVAL CONTENTIONS, I FIND THERE ARE TWO ISSUES THAT ARISE IN THE APPEAL. 2 I.T.A. NO. 2023/KOL/2017 ASSESSMENT YEAR: 2009 - 10 KANKANI CONSTRUCTION (P) LTD 4. FIRST IS THE ADDITION OF RS.2,01,850/ - , TOWARDS UNPAID SERVICE TAX U/S 43B OF THE ACT, THE SECOND ON ACCOUNT OF ADDITION OF AN AMOUNT OF RS.1,33,827/ - , ON ACCOUNT OF UNEXPLAINED SUNDRY CREDITORS , U/S 68 OF THE ACT. 5. IN CASE OF SERVICE TAX, I FIND THAT THE ASSESSEE HAS NOT CLAIMED THE AMOUNT AS EXPENDITURE DURING THE YEAR. WHEN NO EXPENDITURE HAS BEEN CLAIMED, THE QUESTION OF DISALLOWANCE U/S 43B OF THE ACT, DOES NOT ARISE AS HELD BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF A.W. FIGGIS AND CO. LTD. VS COMMISSIONER OF INCOME - TAX 2002 256 ITR 268 CAL . THUS, THIS ADDITION IS DELETED. 6. COMING TO THE ADDITION OF SUNDRY CREDITORS, I FIND THAT THE FIRST AMOUNT IN DISPUTE IS LIABILITY OF RS.1,06,737/ - , PAYABLE TO SHRI ANANTA DAS, WHICH IS A CARRY FORWARD BALANCE FROM THE EARLIER YEAR. AS THE CREDIT D ID NOT ARISE DURING THE YEAR, NO ADDITION U/S 68 OF THE ACT, CAN BE MADE IN THIS YEAR. HENCE THE SAME IS DELETED. 6.1. THE OTHER ADDITION IS OF AN AMOUNT OF RS.27,090/ - , B EING PURCHASES ON CREDIT FROM M/S CALCUTTA ANODIZING WORKS. SECTION 68 OF THE ACT CANNOT BE ATTRACTED WHEN THE FACT OF PURCHASE IS NOT IN DISPUTE AND WHEN THE TRADING RES ULT S HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER. IN THE RESULT, THIS ADDITION IS ALSO DELETED. 7. IN THE RESULT , APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 19 TH DAY OF JANUARY , 201 8 . SD/ - [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 19 . 01 .201 8 {SC SPS} 3 I.T.A. NO. 2023/KOL/2017 ASSESSMENT YEAR: 2009 - 10 KANKANI CONSTRUCTION (P) LTD COPY OF THE ORDER FORWARDED TO: 1. KANKANI CONSTRUCTION (P) LTD C/O. S.N. GHOSH & ASSOCIATES, ADVOCATES SEVEN BROTHERS LODGE P.O. BUROSHIBTALA P.S. CHINSURAH DIST. HOOGHLY PIN - 712 105 2. J.C.I.T.(OSD) CIRCLE - 4, KOLKATA AAYAKAR BHAWAN P - 7, CHOWRINGHEE SQUARE 8 TH FLOOR KOLKATA 700 069 3. CIT(A) - 4. CIT - , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES