D.C.I.T., Circle-6(1), Kolkata, Kolkata V. M/s All Bank Finance Ltd., Kolkata

ITA 2144/KOL/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 3945 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 04-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Assessee Lawyers: PIYUSH DEY
• Keywords: Assessment record
• Section: 143(3); 115JB; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B, KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JM] I.T.A. NO. 2144/KOL/2016 ASSESSMENT YEAR: 2009-10 D.C.I.T, CIR-6(1), KOLKATA......................................................APPELLANT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069 M/S. ALL BANK FINANCE LTD.........................RESPONDENT 9/1, R.N. MUKHERJEE ROAD, KOLKATA 700 001. [PAN: AACCA 4014 D] APPEARANCES BY: MD. USMAN, CIT, DR APPEARING ON BEHALF OF THE REVENUE. SHRI PIYUSH DEY, FCA APPEARING ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : SEPTEMBER 24, 2018 DATE OF PRONOUNCING THE ORDER : OCTOBER 31, 2018 ORDER PER P.M. JAGTAP, VICE-PRESIDENT THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(APPEALS) 16, KOLKATA DATED 31.08.2016 WHEREBY HE DIRECTED THE AO TO CONSIDER THE CLAIM OF THE ASSESSEE FOR THE REVISED BOOK PROFIT U/S 115JB OF THE ACT MADE BY WAY OF RECTIFICATION APPLICATION U/S 154. 2. THE ASSESSEE IN THE PRESENT IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF MERCHANT BANKING. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 02.12.2009 DECLARING A LOSS OF RS. 5,55,92,485/- AS PER THE NORMAL PROVISIONS OF THE ACT AND INCOME OF RS. 10,61,21,706/- U/S 115JB OF THE ACT. THE SAID RETURN FILED BY THE ASSESSEE WAS SELECTED FOR THE SCRUTINY ASSESSMENT. DURING THE COURSE OF SCRUTINY PROCEEDINGS, THE ASSESSEE FILED A REVISED COMPUTATION 2 I.T.A. NO. 2144/KOL/2016 ASSESSMENT YEAR: 2009-10 M/S. ALL BANK FINANCE LTD. SHOWING TOTAL INCOME AT RS. 2,23,95,695/- UNDER THE NORMAL PROVISIONS OF THE ACT. THE INCOME DECLARED U/S 115JB HOWEVER WAS NOT REVISED BY THE ASSESSEE. IN THE ASSESSMENT COMPLETED U/S 143(3) BY AN ORDER DATED 03.12.2011, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 6,27,36,615/- UNDER THE NORMAL PROVISIONS OF THE ACT. THEREAFTER AN APPLICATION U/S 154 WAS FILED BY THE ASSESSEE ON 12.09.2013 CLAIMING ITS INCOME U/S 115JB OF THE ACT AT A REVISED FIGURE OF RS. 8,82,48,219/-. SINCE THE INCOME U/S 115JB WAS NOT REVISED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE U/S 154 WAS REJECTED BY THE AO VIDE HIS ORDER DATED 03.10.2013. 3. AGAINST THE ORDER PASSED BY THE AO REJECTING THE APPLICATION OF THE ASSESSEE FOR RECTIFICATION U/S 154, AN APPEAL WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND BY RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS CIT 284 ITR 323 AS WELL AS THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF PCIT VS WESTERN INDIA SHIPYARD LTD. 379 ITR 289, THE LD. CIT(A) ACCEPTED THE FRESH CLAIM MADE BY THE ASSESSEE OF THE REVISED FIGURE OF BOOK PROFIT BY WAY OF RECTIFICATION APPLICATION U/S 154 AND DIRECTED THE A.O. TO CONSIDER THE SAME. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY CONTENDED BY THE LEARNED DR, THE SCOPE OF RECTIFICATION PROCEEDINGS U/S 154 IS LIMITED TO RECTIFY THE MISTAKE APPARENT FROM RECORD AND 3 I.T.A. NO. 2144/KOL/2016 ASSESSMENT YEAR: 2009-10 M/S. ALL BANK FINANCE LTD. THEREFORE THE CLAIM OF THE ASSESSEE FOR THE REVISED INCOME U/S 115JB MADE BY WAY OF RECTIFICATION APPLICATION WAS BEYOND THE SCOPE OF RECTIFICATION PERMISSIBLE U/S 154. THE SAID REVISED COMPUTATION OF INCOME U/S 115JB WAS NOT FILED BY THE ASSESSEE BEFORE THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AND SINCE THE SAME WAS NOT AVAILABLE ON THE ASSESSMENT RECORD, WE FIND MERIT IN THE CONTENTION OF THE LEARNED DR THAT THERE WAS NO MISTAKE IN THE ORDER OF THE A.O. PASSED U/S 143(3) IN NOT CONSIDERING THE SAME, CALLING FOR ANY RECTIFICATION U/S 154. HOWEVER, AS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE INCOME OF THE ASSESSEE U/S 115JB WAS NOT COMPUTED AT ALL BY THE A.O. IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 03.12.2011 AND TO THAT EXTENT, THERE WAS A MISTAKE IN THE SAID ORDER WHICH CALLS FOR RECTIFICATION U/S 154. WE ACCORDINGLY MODIFY THE IMPUGNED ORDER OF THE LD. CIT(A) AND DIRECT THE A.O. TO COMPUTE THE INCOME OF THE ASSESSEE U/S 115JB ON THE BASIS OF THE INFORMATION AND MATERIAL AVAILABLE ON THE ASSESSMENT RECORD. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2018. SD/- SD/- (S.S.VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE-PRESIDENT DATED: 31/10/2018 BISWAJIT, SR. PS 4 I.T.A. NO. 2144/KOL/2016 ASSESSMENT YEAR: 2009-10 M/S. ALL BANK FINANCE LTD. COPY OF ORDER FORWARDED TO: 1. M/S. ALL BANK FINANCE LTD., 9/1, R.N. MUKHERJEE ROAD, KOLKATA 700 001. 2. D.C.I.T, CIR-6(1), P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA