DCIT, Circle - 9(1), , Kolkata V. M/s. Damodar Valley Corporation, Kolkata

ITA 2228/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8513 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 26-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 143(3); 263

Judgement Text

I.T.A. NO. 2228/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. DAMODAR VALLEY CORPORATION 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 2228/KOL/2018 ASSESSMENT YEAR: 2012-2013 DEPUTY COMMISSIONER OF INCOME TAX,...... .........APPELLANT CIRCLE-9(1), KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 -VS.- M/S. DAMODAR VALLEY CORPORATION,................... .............................RESPONDENT DVC TOWERS, 4 TH FLOOR, VIP ROAD, ULTADANGA, KOLKATA-700 054 [PAN: AABCD 0541 M] APPEARANCES BY: SHRI RADHEY SHYAM, CIT (D.R.), FOR THE APPELLANT N O N E, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : APRIL 09, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 09, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KOLKATA ZONE) :- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-23, KOLKATA DA TED 27.08.2018 AND THE GROUNDS RAISED THEREIN BY THE REVENUE READ AS U NDER:- 1. WHETHER THE CIT(A) IS JUSTIFIED IN FACTS AND IN LAW TO ALLOW THE APPEAL OF THE ASSESSEE AGAINST THE REVISION ASS ESSMENT ORDER OF THE ASSESSING OFFICER DATED 22.12.2017 ON THE MERE GROUND THAT THE HON'BLE ITAT VIDE ITS ORDER DATED 2 1.02.2018 HAD QUASHED THE REVISION ORDER OF PR.CIT-3, KOLKATA PASSED ON 12.01.2017 AND NOT VERIFYING THE FACTS AND CIRCUMST ANCES OF THE CASE? 2. WHETHER THE CIT(A) IS JUSTIFIED IN FACTS AND IN LAW TO DECLARE THE IMPUGNED REVISION ASSESSMENT ORDER OF T HE ASSESSING OFFICER DATED 22.12.2017 AS NON-EST WITHO UT CONSIDERING THE FACTS OF THE CASE BASED ON ITS MERI T? 3. WHETHER THE CIT(A) IS JUSTIFIED IN FACTS AND IN LAW TO DECLARE THE IMPUGNED REVISION ASSESSMENT ORDER OF T HE I.T.A. NO. 2228/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. DAMODAR VALLEY CORPORATION 2 ASSESSING ORDER DATED 22.12.2017 AS NON-EST. AND DE LETED THE DISALLOWANCE BY AO ON ACCOUNT OF PRIOR PERIOD EXPEN DITURE OF RS.39,34,86,241/- WITHOUT CONSIDERING THE FACT THAT THE SAID DISALLOWANCE WAS MADE BY THE AO BASED ON THE FACT T HAT THE DUES PAYABLE TO BCCL FOR EARLIER YEARS (PRIOR TO FY 2011-12)? 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF GENERATION AND DISTRIBUTION OF POWE R AS WELL AS IRRIGATION AND FLOOD CONTROL. IN THE ASSESSMENT ORIGINALLY COM PLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 30.03.2015, THE TOTAL IN COME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT A LOSS O F RS.1010,98,86,395/- AND BOOK LOSS WAS COMPUTED AT RS.838,93,15,387/-. T HE SAID ASSESSMENT WAS SUBSEQUENTLY SET ASIDE BY THE CONCERNED LD. PRI NCIPAL CIT VIDE AN ORDER DATED 12.01.2017 PASSED UNDER SECTION 263 WIT H A DIRECTION TO THE ASSESSING OFFICER TO MAKE THE ASSESSMENT AFRESH AS PER THE DIRECTION GIVEN IN HIS ORDER. IN PURSUANCE OF THE ORDER PASSE D BY THE LD. PRINCIPAL CIT UNDER SECTION 263, A FRESH ASSESSMENT WAS MADE BY THE ASSESSING OFFICER VIDE AN ORDER DATED 22.12.2017 PASSED UNDER SECTION 143(3) READ WITH SECTION 263 OF THE ACT, WHEREBY HE DETERMINED THE TOTAL LOSS OF THE ASSESSEE AT RS.971,64,00,154/- AFTER MAKING AN ADDI TION OF RS.39,34,86,241/- ON ACCOUNT OF DISALLOWANCE OF PRI OR PERIOD EXPENSES. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3) READ WITH SECTION 263, AN APPEAL WAS PREFERR ED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS). MEANWHILE AN APPEAL FI LED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE LD. CIT UNDER SECTI ON 263 CAME TO BE DISPOSED OF BY THE TRIBUNAL VIDE AN ORDER DATED 21. 02.2018 PASSED IN ITA NO. 401/KOL/2017, WHEREBY THE ORDER PASSED BY THE L D. PRINCIPAL CIT UNDER SECTION 263 WAS QUASHED BY THE TRIBUNAL. CONS EQUENTLY THE ORDER PASSED BY THE ASSESSING OFFICER ORIGINALLY UNDER SE CTION 143(3) ON 30.03.2015 STOOD RESTORED AND THE ORDER PASSED BY T HE ASSESSING OFFICER UNDER SECTION 143(3) READ WITH SECTION 263 ON 22.12 .2017 BECAME NON- EST. THE LD. CIT(APPEALS) ACCORDINGLY CANCELLED THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) READ WITH SE CTION 263 AND ALLOWED I.T.A. NO. 2228/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. DAMODAR VALLEY CORPORATION 3 THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 27.08.2018. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING FIXED IN THIS CASE TODAY, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. THIS APPEAL OF THE REVEN UE IS, THEREFORE, BEING DISPOSED OF EX-PARTE QUA THE RESPONDENT-ASSESSEE AF TER HEARING THE ARGUMENTS OF THE LD. D.R. AND PERUSING THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS ALREADY NOTED BY US, THE ORDER DATED 12. 01.2017 PASSED BY THE CONCERNED LD. CIT UNDER SECTION 263 HAVING BEEN QUA SHED BY THE TRIBUNAL VIDE ITS ORDER DATED 21.02.2018 PASSED IN ITA NO. 4 01/KOL/2017, THE ORDER PASSED BY THE ASSESSING OFFICER IN PURSUANCE OF THE ORDER OF LD. PRINCIPAL CIT PASSED UNDER SECTION 263 BECAME NON-EST IN THE EYES OF LAW AND THE LD. CIT(APPEALS), IN OUR OPINION, WAS FULLY JUSTIFIED IN CANCELLING THE SAME AND IN ALLOWING THE APPEAL OF THE ASSESSEE FILED AGAINST THE SAID ORDER. EVEN THE LD. CIT (DR) HAS NOT BEEN ABLE TO D ISPUTE THIS POSITION. HE HAS ALSO NOT BROUGHT ANYTHING ON RECORD TO SHOW THA T THE RELEVANT ORDER OF THE TRIBUNAL QUASHING THE ORDER OF THE LD. CIT P ASSED UNDER SECTION 263 HAS BEEN REVERSED OR DISTURBED IN ANY MANNER BY THE HONBLE CALCUTTA HIGH COURT. WE, THEREFORE, UPHOLD THE IMPUGNED ORD ER PASSED BY THE LD. CIT(APPEALS) AND DISMISS THE APPEAL FILED BY THE RE VENUE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 09, 201 9. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 9 TH DAY OF APRIL, 2019 COPIES TO : (1) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-9(1), KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (2) M/S. DAMODAR VALLEY CORPORATION, I.T.A. NO. 2228/KOL/2018 ASSESSMENT YEAR: 2012-2013 M/S. DAMODAR VALLEY CORPORATION 4 DVC TOWERS, 4 TH FLOOR, VIP ROAD, ULTADANGA, KOLKATA-700 054 (3) COMMISSIONER OF INCOME TAX (APPEALS)-23, KOLKA TA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.