Shri Ram Ritch Pal Agarwal., Kolkata V. I.T.O Wd - 30(3),kolkata., Kolkata

ITA 31/KOL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0497 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 04-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S M SURANA
• Keywords: Business income; Question of law
• Section: 147

Judgement Text

I.T.A. NO . 31 / KOL ./20 13 ASSESSMENT YEAR S 200 5 - 20 0 6 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 31 / KOL / 20 13 ASSESSMENT YEAR : 200 5 - 20 0 6 S H RI RAM RITCH PAL AGARWAL, ... ...... .... ... ..... ........ ... .. .APP ELL ANT 67A, BALLYGUNGE CIRCULAR ROAD, KOLKATA - 700 019 [ PAN : A FGPA 3074 D] ] - VS. - INCOME TAX OFFICER , ................................. .. ..... . RESPONDENT WARD - 30(3), KOLKATA APPEARANCES BY: SHRI S.M. SURANA, ADVOCATE , FOR THE ASSESSEE SHRI PINAKI MUKHERJEE, JCIT, SR. D.R. , FOR THE REVENUE DATE OF CONCLUDING THE HEARING : MAY 27 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JUNE 09 , 201 5 O R D E R PER P.K. BANSAL : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE O RDER OF COMMISSIONER OF INCOME TAX (APPEALS) - XIV, KOLKATA DATED 2 9 . 11 .20 12 FOR THE ASSESSMENT YEAR 200 5 - 0 6. 2. THE ASSESSEE HAS TAKEN AS MANY AS SIX GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS ALL OTHER GROUNDS EXCEPT THE GROUND RELATING TO THE TREATMENT OF THE INTEREST INCOME AS INCOME FROM OTHER SOURCES. 3. THE FACTS RELATING TO THE GROUND ARE THAT THE ASSESSEE HAS FILED THE RETURN ON 27.09.2005 DECLARING INCOME OF RS.46,930/ - . THE TOTAL BUSINESS INCOME HAS BE EN DECLARED AT RS.21,97,320/ - AND INTEREST OF RS.6,57,584/ - WAS ALSO SHOWN UNDER THE HEAD INCOME FROM BUSINESS . THE ASSESSEE SET OFF THE BROUGHT FORWARD BUSINESS LOSS WITH THE AFORESAID INCOME. THE RETURN WAS PROCESSED UNDER SECTION 143(1)(A) WHICH WAS R E - OPENED UNDER SECTION 147 FOR THE REASON THAT AS PER THE ASSESSING OFFICER THE INTEREST INCOME OF RS.6,57,584/ - WAS INCOME FROM OTHER SOURCES WHICH SHOULD NOT HAVE BEEN SET OFF AGAINST THE BROUGHT FORWARD BUSINESS LOSSES AND ACCORDINGLY THE INCOME ASSESSA BLE I.T.A. NO . 31 / KOL ./20 13 ASSESSMENT YEAR S 200 5 - 20 0 6 PAGE 2 OF 3 FOR THE YEAR HAS ESCAPED ASSESSMENT. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 143(3)/147 DETERMINING THE TOTAL INCOME AT RS.27,60,120/ - AND DID NOT ALLOW SET OFF OF THE BROUGHT FORWARD LOSSES IN ITS ENTIRETY ON THE GROUND THAT THE I NTEREST INCOME TO THE EXTENT OF RS.6,57,584/ - WAS TO BE ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. WE NOTED THAT IN THE AS SESSMENT YEARS 2001 - 02, 2002 - 03, 2003 - 04 AND 2004 - 05 THE INTEREST INCOME HAS BEEN ASSESSED BY THE A.O. UNDER THE HEAD INCOME FROM BUSINESS . THE REVENUE HAS DULY ACCEPTED THE SAID INCOME AS INCOME FROM BUSINESS. IN OUR OPINION, RES JUDICATA DOES NOT A PPLY TO INCOME TAX PROCEEDINGS AND EACH ASSESSMENT YEAR BEING A UNIT , WHAT IS DECIDED IN ONE YEAR MAY NOT APPLY IN THE FOLLOWING YEAR BUT WHERE A QUESTION OF LAW OR FACT IN DECIDING THE ASSESSEE S OWN CASE FOR EARLIER ASSESSMENT YEARS AND THE IDENTICAL QU ESTION CAME UP FOR CONSIDERATION FOR A LATER YEAR. IN THE ABSENCE OF NEW MATERIAL OR CHANGE IN THE CIRCUMSTANCES , THE ASSESSING OFFICER IS BOUND TO FOLLOW THE DECISION MADE IN THE EARLIER YEAR. TO THAT EXTENT THE PRINCIPLE OF RES JUDICATA IS APPLICABLE TO THE INCOME TAX PROCEEDINGS. IT IS NOT A CASE WHERE BY ACCEPTING THE INCOME UNDER THE HEAD INCOME FROM BUSINESS , THE ASSESSING O FFICER HAS COMMITTED A MISTAKE IN THE EARLIER YEAR. WE ACCORDINGLY SET ASIDE THE ORDER OF CIT(APPEALS) ON THIS ISSUE AND DIRECT THE ASSESSING O FFICER TO ASSESS THE INCOME FROM INTEREST UNDER THE HEAD INCOME FROM BUSINESS NOT UNDER THE HEAD INCOME FROM OTHER SOURCES. THUS THIS GROUND IS ALLOWED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNC ED IN THE OPEN COURT ON 9 TH JUNE , 201 5 . SD/ - SD/ - MAHAVIR SINGH P.K. BANSAL ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) KOLKATA, THE 9 TH D AY OF JUNE , 201 5 COPIES TO : (1) SHRI RAM RITCH PAL AGARWAL, 67A, BALLY GUNGE CIRCULAR ROAD, KOLKATA - 700 019 (2) INCOME TAX OFFICER, WARD - 30(3), KOLKATA I.T.A. NO . 31 / KOL ./20 13 ASSESSMENT YEAR S 200 5 - 20 0 6 PAGE 3 OF 3 (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .