M/S. SENCO GOLD LIMITED, Kolkata V. DCIT, CIR-11, Kolkata

ITA 2101/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8203 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-01-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 09-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM BILASH MEENA
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: TDS; Set aside
• Section: 143(3); 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 2101 / KOL / 2019 ASSESSMENT YEAR :2014-15 M/S SENCO GOLD LTD. DIAMOND PRESTIGE BUILDING, 41A, AJC BOSE ROAD, 10 TH FLOOR, KOLKATA-700 017 [ PAN NO.AADCS 6985 J ] V/S . DCIT, CENTRAL CIRCLE- 4(1), AAYAKAR BHAWAN, POOROVA, 110, SHANTIPALLY, KOLKATA-107 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI MIRAJ D. SHAH, ADVOCATE /BY RESPONDENT SHRI RAM BILASH MEENA, CIT-DR /DATE OF HEARING 13-01-2020 /DATE OF PRONOUNCEMENT 22-01-2020 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2014-15 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-21 KOLKATAS O RDER DATED 04.07.2019 PASSED IN CASE NO. 10566/CC-4(1)/CIT(A)-21/KOL/201 8-19, AY 2013-14 10567/CC-4(1)/CIT(A)-21/KOL/2018-19, AY 2014-15, I NVOLVING PROCEEDINGS 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE ASSESSEE RAISED THE FOLLOWING SUBSTANTIVE GR OUNDS IN THE INSTANT APPEAL:- ITA NO.2101/KOL/2019 A.Y. 2014-15 M/S SENCO GOLD LTD. VS. DCIT, CC-4(1), KOL. PAGE 2 1. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE APPELLATE ORDER PASSED WAS IN VIOLATION OF PRINCIPALS OF NATURAL JU STICE HENCE IS BAD IN LAW AND BE QUASHED. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ASSESSMENT MADE U/S 153A OF THE IT ACT 1961 WAS BAD IN LAW AND HENC E THE APPELLATE ORDER PASSED BY THE LD. CIT(A) BASED ON THE ASSESSMENT OR DER IS BAD IN LAW AND BE QUASHED. 3. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ASSESSMENT MADE U/S 153A OF THE IT ACT 1961 WAS WITHOUT ANY SATISFA CTION OF THE RELEVANT ASSESSING OFFICER HENCE THE PROCEEDINGS WERE BAD IN LAW AND HENCE THE ORDER BE QUASHED. 4. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ADDITIONS/ DISALLOWANCES MADE U/S 153A OF THE IT ACT 1961 WAS BEYOND THE SCOPE OF THE SAID SECTION AND HENCE BAD IN LAW AND HENCE THE ORD ER BE QUASHED AND/ OR THE ADDITION/ DISALLOWANCES BE DELETED. 5. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ADDITIONS/ DISALLOWANCES MADE U/S 153A OF THE IT ACT 1961 WAS NOT BASED ON ANY INCRIMINATING DOCUMENTS / MATERIAL/ EVIDENCES FOUND IN THE SEARCH WHICH AND HENCE THE ADDITIONS / DISALLOWANCE MADE WERE BEYOND THE SCOPE OF THE SAID .SECTION HENCE THE APPELLATE ORDER PASSED BY THE LD CIT(A) BASED ON THE ASSESSMENT ORDER IS BAD IN LAW AND BE QUASHED AND/O R THE ADDITION/ DISALLOWANCES BE DELETED. 6. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE ASSESSMENT HAD ABETTED AND HENCE THE ADDITIONS / DISALLOWANCES MAD E U/S 153A OF THE IT ACT 1961 WAS BEYOND THE SCOPE OF THE SAID SECTION AND H ENCE THE APPELLATE ORDER PASSED BY THE LD CIT(A) BASED ON THE ASSESSMENT ORD ER IS BAD IN LAW AND BE QUASHED AND/OR THE ADDITION / DISALLOWANCES BE DELE TED. 7. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED ASSESSING OFFICER BE DIRECTED TO GRANT FULL MAT CREDIT CLAIME D AT THE TIME OF FILING OF RETURN OF INCOME AMOUNTING TO RS.3,13,90,196 AS CLA IMED IN THE RETURN OF INCOME. 8. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED ASSESSING OFFICER BE DIRECTED TO GRANT CREDIT OF THE ADVANCE TAX PAID BY MS SENCO IMPEX PRIVATE LIMITED, PAN AAKCA3397B, WHICH WAS ME RGED WITH THE ASSESSEE COMPANY W.E.F. 01/04/2013 BY THE ORDER OF THE CALCUTTA HIGH COURT IN CP NO 51-2014. 9. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LEARNED ASSESSING OFFICER BE DIRECTED TO GRANT CREDIT OF THE TDS IN T HE HANDS OF MS SENCO IMPEX PRIVATE LIMITED, PAN AAKCA3397B, WHICH WAS MERGED W ITH THE ASSESSEE COMPANY W.E.F. 01/04/2013 BY THE ORDER OF THE CALCU TTA HIGH COURT IN CP NO 51-2014. ITA NO.2101/KOL/2019 A.Y. 2014-15 M/S SENCO GOLD LTD. VS. DCIT, CC-4(1), KOL. PAGE 3 10. FOR THE LEARNED ASSESSING OFFICER BE DIRECTED T O RECOMPUTE THE TAX AND INTEREST AFTER GIVING EFFECT TO THE ABOVE GROUNDS 11. FOR THAT THE LEARNED CIT (APPEALS) ERRED IN CON FIRMING THE INTEREST U/S 234 A/B/C THE SAME WAS UNJUSTIFIED AND HENCE THE SAME B E RECALCULATED AS PER THE APPLICABLE LAW. 12. THE APPELLANT CRAVES LEAVE TO PRODUCE ADDITIONA L EVIDENCES IN TERMS OF RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULE S 1963. 3. LEARNED AUTHORIZED REPRESENTATIVE INVITES OUR AT TENTION TO THE CIT(A)S DETAILED DISCUSSION AT PAGE 10 PARA-9 OF THE CIT(A) S ORDER DIRECTING THE ASSESSING OFFICER TO GIVE MAT, TDS AND ADVANCE TAX CREDIT TO THE ASSESSEE. HIS CASE ACCORDINGLY IS THAT ALTHOUGH THE ASSESSEE HAD PLACED ON RECORD ALL THE CORRESPONDING DETAILS OF THE CORRESPONDING MERG ER SCHEME APPROVED BY HON'BLE JURISDICTIONAL HIGH COURT IN COMPANY PETITI ON NO. 51 OF 2014 WITH EFFECT FROM 01.04.2013, THE CIT(A) HAS RESTORED THE INSTAN T ISSUES BACK TO THE ASSESSING OFFICER IN VIOLATION OF SEC.251(1)(A) WHE REIN THE LEGISLATURE HAS TAKEN AWAY OR HE MAY SET ASIDE I.E. REMAND JURISDICTION WITH EFFECT FROM 01.06.2001. LEARNED COUNSEL SUBMITTED THAT THE ASSE SSEE HAD PLACED ON RECORD ALL THE RELEVANT DETAILS OF THE IMPUGNED MAT , TDS AND ADVANCE TAX CREDIT ALLOWABLE AS PER LAW WHICH OUGHT TO HAVE BEE N ACCEPTED IN LOWER APPELLATE PROCEEDINGS ONLY. THE REVENUE PLEADS STRO NG RELIANCE ON THE CIT(A) FINDINGS UNDER CHALLENGE. 4. AFTER GIVING OUR THOUGHTFUL TO RIVAL PLEADINGS, WE FIND MERIT IN RESPECT TO THE ASSESSEES TECHNICAL ARGUMENT ALLEGING VIOLATIO N OF SEC. 251(1)(A) OF THE ACT SINCE THE CIT(A)S JURISDICTION TO SET ASIDE THE ISSUE BACK TO THE ASSESSING OFFICER HAS BEEN TAKEN AWAY W.E.F. 01.06. 2001. THE FACT ALSO REMAINS THAT THE ASSESSING OFFICERS ASSESSMENT ORD ER DATED 31.12.2018 HAS NOWHERE EXAMINED THE ISSUE IN DETAILS QUA THE INSTANT THREE ISSUES OF TDS MAT AND ADVANCE TAX CREDIT AS THE ABOVE STATED MERG ER SCHEME APPEARED IN HIMSELF JURISDICTIONAL HIGH COURT. BE THAT AS IT MA Y, THE FACT REMAINS THAT THE ASSESSING OFFICER IS YET TO EXAMINE THE INSTANT ISS UE. WE THEREFORE RESTORE THE ITA NO.2101/KOL/2019 A.Y. 2014-15 M/S SENCO GOLD LTD. VS. DCIT, CC-4(1), KOL. PAGE 4 ASSESSEES ABOVE SOLE GRIEVANCE BACK TO THE ASSESSI NG OFFICER OURSELVES FOR AFRESH ADJUDICATION AS PER LAW WITHIN THREE EFFECTI VE OPPORTUNITIES OF HEARING. THE ASSESSEE IS DIRECTED TO APPEAR IN CONSEQUENTIAL PROCEEDINGS ON OR BEFORE 30.06.2020 ALONGWITH A COPY OF THE INSTANT ORDER. 5. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 22/ 01/2020 SD/- SD/- ( &) (( &) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP )- 22 / 01 /20 20 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S SENCO GOLD LTD., DIAMAOND PRESTIGE B UILDING, 41A, AJC BOSE ROAD, 10 TH FLOOR, KOLKATA-17 2. /RESPONDENT-DCIT, CC-4(1), AAYAKAR BHAWAN POORVA, 1 10, SHANTIPALLY, KOL-107 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5. 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ 4,