DCIT, Circle - 11(1), Kolkata , Kolkata V. M/s. Confident Solar Pvt. Ltd., , Kolkata

ITA 252/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6260 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 15-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGAINST DATED PASSED
• Keywords: Earning of tax free income
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA BEFORE SH. J.SUDHAKAR REDDY, ACCOUNTANT MEMBER & SH.S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.252/KOL/2018 (ASSESSMENT YEAR-2012-13) ORDER PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 01.11.2017 PASSED BY CIT(A)-4, KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) FOR AY 2012-13. 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER THE CIT(A) JUSTIFIED IN DELETING THE DISALLOWANCE MADE ON ACCOUNT OF SECTION 14A OF THE ACT. 3. HEARD BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CONTENTION OF THE LD.AR IS THAT NO EXEMPT INCOME WAS EARNED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION AND THE CIT(A) IN THE FIRST APPELLATE PROCEEDINGS BY PLACING RELIANCE IN THE DECISION OF CHEMINVEST LTD. VS CIT 378 ITR 33 DELETED THE ADDITION. THE LD.AR ARGUED WHEN THERE IS NO EXEMPT INCOME EARNED, NO DISALLOWANCE IS MAINTAINABLE. LD. DR DID NOT CONTROVERT THE SAME. ON PERUSAL OF THE IMPUGNED ORDER AT PARA 4.2, IT IS NOTED THAT THE CIT(A) EXAMINED THE RECORD AND FOUND SATISFIED THAT NO EXEMPT INCOME WAS EARNED BY THE ASSESSEE. FOR READY-REFERENCE, THE RELEVANT PORTION OF WHICH IS REPRODUCED HEREIN BELOW:- DCIT, CIRCLE-11(1), P-7, CHOWRINGHEE SQUARE, KOLKATA-700069. VS M/S. CONFIDENT SOLAR PVT.LTD., 60A, D.H.ROAD, THAKURPUKUR, KOLKATA-700063. PAN-AAECC2709D (APPELLANT) (RESPONDENT) APPELLANT BY R.SHYAM, CIT DR RESPONDENT BY ANANYA RATH DATE OF HEARING 17.01.2019 DATE OF PRONOUNCEMENT 25.01.2019 ITA NO.252/KOL/2018 (ASSESSMENT YEAR-2012-13) PAGE | 2 4.2. I HAVE PERUSED THE ASSESSMENT ORDER AND THE SUBMISSION OF THE LD.A/R. I HAVE ALSO GONE THROUGH THE CASE LAWS RELIED UPON BY THE DEPARTMENT AND THE ASSESSEE. IT IS UNDENIABLE THAT THE INSTANT CASE NO DIVIDEND/EXEMPT INCOME HAS BEEN EARNED BY THE ASSESSEE. HONBLE DELHI HIGH COURT IN THE CASE OF CHEMINVEST LTD. V. CIT 378 ITR 33 HAS HELD THAT NO DISALLOWANCE U/S 14A CAN BE MADE WHERE THE ASSESSEE HAS NOT EARNED ANY EXEMPT INCOME. THE SAME VIEW HAS BEEN HELD BY GUJARAT HIGH COURT IN THE CASE OF CORRTECH ENERGY PVT.LTD. APPEAL NO.239 OF 2014 DATED 24.03.2014. FURTHER ON IDENTICAL SET OF FACTS IT IS SSEEN THAT IN THE CASE OF DIVAKAR SOLAR SYSTEM LTD. VS DCIT IN ITA NO.1301/KOL/2015, HONBLE CALCUTTA ITAT HAS ALLOWED THE APPEAL IN FAOVUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE ABOVE JUDGEMENT AND THE JUDGEMENT OF HONBLE CALCUTTA ITAT IN THE CASE OF DIVAKAR SOLAR SYSTEM LTD. (SUPRA). GORUND NOS.2(A), (B), (C) AND GORUND NOS. 3(A), (B) & (C) ARE ALLOWED IN FAVOUR OF THE ASSESSEE. 4. IN VIEW OF THE ABOVE, WE FIND NO INFIRMITY IN THE ORDER OF CIT(A). THUS, GROUND NOS. 1 & 2 RAISED BY THE REVENUE ARE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25.01.2019. SD/- SD/- (J.SUDHAKAR REDDY) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER [ DATE:-23.01.2019 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT- DCIT, CIRCLE-11(1), P-7, CHOWRINGHEE SQUARE, KOLKATA- 700069. 2. RESPONDENT- M/S. CONFIDENT SOLAR PVT.LTD., 60A, D.H.ROAD, THAKURPUKUR, KOLKATA-700063. 3. CIT-KOLKAT A 4. CIT(APPEALS)-KOLKATA 5. DR: ITAT -KOLKATA BENCHES BY ORDER AR/H.O.O ITAT, KOLKATA