I.T.O Wd - 9(2),kolkata, Kolkata V. M/s Vishal Equity Services Pvt. Ltd., Kolkata

ITA 2267/KOL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4773 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 13-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-08-2013
• Court: TRIBUNAL
• Department Lawyers: GHYAS UD DIN
• Assessee Lawyers: SUB HASH AGARWAL ADVOCAT
• Keywords: Assessment record
• Section: 154

Judgement Text

1 ITA NO.2267/KOL/2013 M/ S. VISHAL EQUITY SERVICES PVT. LTD IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, K OLKATA BEFORE : SHRI P.M. JAGTAP, ACCOUNTANT MEMBER, AND SHRI S.S VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NO. 2267/KOL/2013 A.Y. 2009-10 I.T.O, WARD-9(2), KOLKATA VS. M/S.VISHAL EQUI TY SERVICES PVT LTD PAN: AABCV023 8K (APPELLANT) (RESPON DENT) FOR THE APPELLANT/DEPARTMENT : SHRI GHYAS UD DIN, JCIT, SR.DR FOR THE RESPONDENT/ASSESSEE: SHRI SUB HASH AGARWAL, ADVOCATE, LD.AR DATE OF HEARING: 13-06-2016 DATE OF PRONOUNCEMENT: 03 - 08 -2016 ORDER SHRI S.S VISWANETHRA RAVI, JM THIS APPEAL OF THE REVENUE IS ARISING OUT OF THE ORDER OF THE CIT(A)-VIII, KOLKATA IN APPEAL NO. 79/CIT(A)-VIII/KOL/ 12-13 DA TED 13-06-2013 FOR THE ASSESSMENT YEARS 2009-10 AGAINST THE ORDER OF ASSESSMENT FRA MED BY THE AO U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT). 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOL LOWING GROUNDS:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASELD.CIT(A) WAS JUSTIFIED IN DIRECTING TO ALLOW RELIEF TO THE ASSES SE AFTER VERIFICATION OF THE ASSESSMENT RECORDS BY THE ASSESSMENT OFFICER 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE LD.CIT(A) WAS JUSTIFIED IN RESTORING THE MATTER TO THE ASSESSING OFFICER WHICH IS BEYOND THE SCOPE OF POWERS CONFERRED BY SECTION 251 OF INCOME TAX ACT, 1961, AND THEREFORE WHETHER THE DIRECTIONS ARE BAD IN LAW . 2 ITA NO.2267/KOL/2013 M/ S. VISHAL EQUITY SERVICES PVT. LTD 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR MOD IFY ANY GROUND OF APPEAL DURING THE COURSE OF HEARING. 3. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL AS T O WHETHER COMMISSIONER OF APPEALS WAS JUSTIFIED IN DIRECTING TO MODIFY THE LO NG-TERM CAPITAL GAINS UNDER SECTION 251 OF THE ACT IN THE CIRCUMSTANCES OF THE CASE. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A COMPANY AND FILED ITS RETURN OF INCOME ON 30 TH SEPTEMBER 2009 WHEREIN THE ASSESSEE CLAIMED LONG-T ERM CAPITAL GAINS AT RS.1,19,08,187/- BUT HOWEVER THE ASSESSEE FOUND IN THE INTIMATION UNDER SECTION 143(1) OF THE ACT ISSUED BY THE CENTRAL P ROCESSING CENTRE THE LONG-TERM CAPITAL GAINS AT RS.1,94,81,203/-. ACCORDING TO THE ASSESSE E THE ASSESSING OFFICER DID NOT ACCEPT THE RECTIFICATION APPLICATION FILED UNDER SE CTION 154 OF THE ACT TO CORRECT THE MISTAKE IN THE SAID INTIMATION ISSUED BY THE CENTR AL PROCESSING CENTRE. AS AGGRIEVED BY THE ACTION OF THE ASSESSING OFFICER, THE ASSESSE E PREFERRED AN APPEAL BEFORE THE CIT(A) WHEREIN THE ASSESSEE FILED COMPUTATION OF IN COME TO SHOW THAT IT CLAIMED LONG- TERM CAPITAL GAINS AT RS.1,19,08,187/- BUT NOT AT R S.1,94,81,203/-AND CONSIDERING THE SAME THE COMMISSIONER OF APPEALS OBSERVED AS UNDER: AFTER CAREFULLY CONSIDERING THE SUBMISSION OF THE A PPELLANT ALONG WITH THE SUPPORTING DOCUMENTS AND DETAILS OF COMPUTATION FU RNISHED, PERUSING FACTS OF THE CASE INCLUDING THE RELEVANT INFORMATIO N UNDER SECTION 143(1) OF THE ACT AND OTHER MATERIALS BROUGHT ON THE RECOR DS, I DIRECT THE AO TO MODIFY THE FIGURE OF LONG-TERM CAPITAL GAINS CONSID ERED AT RS.1,94,81,203/-IN THE INTIMATION AND TAKE INTO CON SIDERATION THE SAME AT RS.1,19,08,187/- AS SHOWN IN THE COMPUTATION OF INC OME AFTER DUE VERIFICATION OF THE RELEVANT ORIGINAL OFFICE RECORD S IN THIS REGARD. THUS, THIS GROUND OF APPEAL OF THE APPELLANT IS ALLOWED A S STATED ABOUT. 3 ITA NO.2267/KOL/2013 M/ S. VISHAL EQUITY SERVICES PVT. LTD 5. THE REVENUE AS AGGRIEVED BY THE ORDER OF COMMISSIONER OF APPEALS BEFORE US BY RAISING THE AFOREMENTIONED GROUNDS OF APPEALS IN SUPPORT OF WHICH THE LEARNED DR SUBMITS THAT THE COMMISSIONER APPEALS DOES NOT HAVE POWER TO SEND ANY ISSUE TO THE ASSESSING OFFICER EXCEPT IN CONFORM, REDUCE, ENHANC E OR ANNUL THE ASSESSMENT AND TOOK US TO SECTION 251 OF THE ACT AND EXPLAINED THAT THE POWER OF COMMISSIONER APPEALS IN SENDING BACK THE CASE TO ASSESSING OFFICER WAS OMIT TED BY AN AMENDMENT BY THE FINANCE ACT 2001 WHICH CAME INTO FORCE FROM 1-06-20 01. FURTHER ARGUED THAT IN VIEW OF THE SUCH AMENDMENT THE ORDER PASSED BY THE COMMI SSIONER APPEALS IS BAD AND PRAYED TO ALLOW THE APPEAL. IN REPLY THE LEARNED AR RELIED ON A DECISION OF A BENCH OF DELHI TRIBUNAL IN THE CASE OF ITO VS AMITY INTER NATIONAL SCHOOL REPORTED IN (2014) 48 TAXMAN.COM 173 (DELHI-TRIB). 6. HEARD RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. INSOFAR AS THE ARGUMENTS OF LEARNED DR CONCERNED THAT HE IS RI GHT IN SUBMITTING THAT THE COMMISSIONER APPEALS CANNOT EXERCISE HIS JURISDICTI ON IN SENDING BACK THE CASE TO ASSESSING OFFICER WITHIN THE MEANING OF SECTION 251 OF THE ACT AS THE POWER OF COMMISSIONER APPEALS IN REMITTING THE CASE TO ASSES SING OFFICER FOR FRESH CONSIDERATION WAS TAKEN AWAY BY THE AMENDMENT TO FINANCE ACT WHIC H CAME INTO FORCE FROM 1 ST JUNE 2001. IN THIS REGARD WE MAY REFER TO THE DECISION I N THE CASE OF ITO VS AMITY INTERNATIONAL SCHOOL SUPRA AS RELIED ON BY THE LEARNED AR. 10. A PERUSAL OF THE ABOVE PROVISIONS REVEALS THAT LD CIT(A) HAS THE FOLLOWING (SIC) WHILE DISPOSING OF AN APPEAL I.E. A S PER SECTION 251(1)(A) WHILE DECIDING AN APPEAL AGAINST AN ASSES SMENT ORDER, HE MAY CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMEN T; AS PER SECTION 251 (1)(AA) WHILE DECIDING AN APPEAL AGAINST AN ORD ER OF ASSESSMENT, 4 ITA NO.2267/KOL/2013 M/ S. VISHAL EQUITY SERVICES PVT. LTD IN RESPECT OF WHICH THE PROCEEDING BEFORE THE SETTL EMENT COMMISSION ABATES U/S 245 HA HE MAY CONFIRM, REDUCE, ENHANCE O R ANNUL THE ASSESSMENT; AND AS PER SECTION 251(1)(B) WHILE DECI DING AN APPEAL AGAINST IMPOSITION OF PENALTY, HE MAY CONFIRM OR CA NCEL SUCH ORDER OR VARY IT SO AS EITHER TO ENHANCE OR TO REDUCE THE PE NALTY; AND AS PER SECTION 251 (1)(C), WHILE DECIDING ANY OTHER APPEAL WHICH DOES NOT FALL U/S 251(1)(A), AA, AND B, THE LD CIT(A) HAS BEEN EM POWERED BY LAW TO PASS 'SUCH ORDERS AS HE THINKS FIT'. IN THE INSTANT CASE THE ORDER APPEALED BEFORE THE LD CIT(A) WAS PASSED BY THE AO U/S 201 OF THE ACT AND AS WE HAVE SEEN THAT THE LD CIT(A) HAS BEEN EMP OWERED BY SECTION 251 (1)(C) OF THE ACT TO PASS SUCH ORDERS AS HE THI NKS FIT WHILE DECIDING THE SUCH AN APPEAL. IN THE INSTANT CASE WE NOTE THA T THE LD CIT(A) HAS OBSERVED THAT THE APPELLANT HAD FILED CORRECTION ST ATEMENT AND FURNISHED RELEVANT DOCUMENTS OF TDS TO PROVE ITS CL AIM BEFORE HIM AND HE HAD ALSO TAKEN NOTE OF THE FACT THAT THE AO HAS NOT ACCEPTED THE SAID DOCUMENT BECAUSE THE APPELLANT'S CORRECTION STATEME NT WERE NOT ACCEPTED BY THE NSDL. IN THE LIGHT OF THE DISCUSSIO N ABOVE, WE ARE OF THE OPINION THAT WHEN THE LD CIT(A) ADJUDICATES AN APPEAL PREFERRED AGAINST AN ORDER PASSED U/S 201 OF THE ACT, HE DRAW S HIS POWER FROM SUB-SECTION (1)(C) OF SECTION 251 OF THE ACT, WHICH ENTAILS HIM TO PASS ANY ORDER AS HE THINKS FIT AND WE DO NOT FIND ANY R ESTRICTION IN THE SAID POWER AND WE CANNOT READ ANY RESTRICTIONS WHICH IS NOT THERE IN SUB- SECTION (1)(C) OF SECTION 251 AND THEREFORE EVEN HE HAS POWERS TO EVEN SET-ASIDE THE SAID ORDER IMPUGNED BEFORE HIM. HOWEV ER WE FIND THAT IN THE INSTANT CASE BEFORE US, THE LD CIT(A) HAS NOT S ET ASIDE THE AO'S ORDER AND THE IMPUGNED ORDER OF THE AO WHICH IS PAS SED U/S 201/ 201A OF THE ACT, WHEREAS HE HAS REMITTED THE CASE BACK T O THE FILE OF AO TO VERIFY DOCUMENTS PRODUCED BEFORE HIM WHICH WAS FILE D BY THE ASSESSEE TO SUBSTANTIATE ITS CLAIM AND TO ALLOW THE CREDIT A S PER LAW. THEREFORE, WE FIND NO INFIRMITY WHATSOEVER IN THE DIRECTION PA SSED BY THE LD CIT(A) AND THEREFORE WE FIND NO MERIT IN THE SAID APPEAL P REFERRED BY THE REVENUE , SO WE UPHOLD THE ORDER OF THE LD CIT(A) AND DISMI SS THE APPEAL OF THE REVENUE. 7. THE FACTS OF THE AFOREMENTIONED CASE ARE THAT TH E ASSESSEE FILED AN E- TDS STATEMENT. THE ASSESSING OFFICER ANALYZED SUCH STATEMENT AND R EVEALED DEFAULTS ON ACCOUNT OF 5 ITA NO.2267/KOL/2013 M/ S. VISHAL EQUITY SERVICES PVT. LTD NON- PAYMENT OF TDS. THE ASSESSING OFFICER ON THE BASIS OF JUSTIFICATION REPORT HELD THE ASSESSEE IN DEFAULT. ON APPEAL, THE COMMISSIONER (APPEALS) NOTED THAT TH E ASSESSEE IN FACT HAD FURNISHED THE CORRECT STATEMENT BEFORE THE ASSESSING OFFICER. CONSIDERIN G THE SAME THE COMMISSIONER (APPEALS) DIRECTED THE ASSESSING O FFICER TO VERIFY THE ASSESSEE'S CLAIM AND ALLOW CLAIM OF THE SAME. IN TH E PRESENT CASE THE ASSESSE CONTENDED BEFORE THE COMMISSIONER APPEALS THAT IT CLAIMED LONG TERM CAPITAL GAINS AT RS.1,19,08,187/- PROOF WHICH THE COMPUTATION OF INCOME WAS FILED TO SHOW THE SAME AND ALSO CONTENDED IT DID NOT FURNISH ANY KIND OF P ARTICULARS SHOWING LONG TERM CAPITAL GAINS AT RS.1,94,81,205/- AND THE CIT- A EXAMINED THE SAME AND CAME TO CONCLUSION THAT THE ASSESSE CLAIMED LONG TERM CAPITAL GAINS AT RS.1,19,08,187/- ONLY. IN OUR OPINION THE CIT-A DECIDED THE ISSUE BY VERIFYING SUPPORTING DOCUMENTS AND RELEVANT ORIG INAL OFFICE RECORDS INVOLVING THE CLAIM OF THE ASSESSEE, THEREBY DIRECTED THE ASSESSING OFFICER TO GIVE EFFECT TO HIS DECISION. WE FIND IT IS VERY CLEAR THAT THE COMMISSIONER APPEALS DID NOT SEND ANY ISSUE FOR THE FRESH CONSIDERATION TO THE ASSESSING OFFICER AND WE FIND THAT IT WAS A DIRECTION TO ASSESSING OFFICER TO MODIFY A MOUNTS RELATING TO LONG TERM C APITAL GAINS. IT CANNOT THEREFORE BE SAID THAT THERE IS VI OLATION OF THE PROVISION OF SECTION 251 OF THE ACT. 8. IN THE RESULT, THE APPEAL OF THE OF THE RE VENUE IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 03 / 08 /2016 SD/- P.M. JAGTAP ACCOUNTANT MEMBER SD/- S.S.VISWANETHRA RAVI, J J UDICIAL MEMBER DATE 03 / 08/2016 6 ITA NO.2267/KOL/2013 M/ S. VISHAL EQUITY SERVICES PVT. LTD COPY OF THE ORDER FORWARDED TO: 1.. THE APPELLANT/DEPARTMENT: THE I.T.O., W 9(2), P-7 CHOWRINGHEE SQUARE, AAYKAR BHAWAN, 5 TH FLOOR, ROOM NO.14, , KOL-69. 2 THE RESPONDENT/ASSESSEE: M/S. VISHAL EQUITY SERV ICES PVT. LTD 11 CROOKED LANE, 1 ST FL., ROOM NO.7, KOLKATA-69. 3 4. . /THE CIT, /THE CIT(A) 5. DR, KOLKATA BENCH 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT REGISTRAR ** PRADIP SPS