M/s Tunganath Realtors Private Ltd., Kolkata V. ITO(CPC), Bangalore, Bangalore

ITA 366/KOL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1605 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KALYAN NATH
• Assessee Lawyers: S JHAJHARIA
• Section: 115JB; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SRI A.T.VARKEY, JM & SHRI M.BALAG ANESH, AM ] I.T.A NO.366/KOL/2017 ASSESSMENT YEAR : 2009-1 0 M/S. TUNGANATH REALTORS PRIVATE LTD. -VS.- I.T.O. (CPC) KOLKATA BANGALORE [PAN : AACCT 8960 F] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI S.JHAJHARIA, A.R. FOR THE RESPONDENT : SHRI KALYAN NATH, ADDL. CIT DATE OF HEARING : 23.06.2017. DATE OF PRONOUNCEMENT : 07.07.2017 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL OF THE ASSESSEE ARISES OUT OF THE OR DER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -17 , KOLKATA [ IN SHORT THE L D CI(A)] IN APPEAL NO.309/CIT(A)- 17/KOL/14-15 DATED 16.06.2016 AGAINST THE ORDER PAS SED BY THE CPC, BANGALORE [ IN SHORT THE LD AO] UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ] DATED 07.09.2010 FOR THE ASST Y EAR 2009-10. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL OF T HE ASSESSEE IS AS TO WHETHER THE LD CIT(A) WAS JUSTIFIED IN CONFIRMING THE ADDITION OF RS.6,67,301/- TOWARDS SHARE OF PROFIT FROM THE PARTNERSHIP FIRM IN COMPUTING THE BOOK PRO FIT U/S 115JB OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. AT THE OUTSET, WE FIND THAT THE LD. CIT(A) HAS P ASSED AN ORDER EX-PARTE AND THE LD. AR PRAYED BEFORE US FOR SETTING ASIDE OF THIS ISSUE TO THE FILE OF THE LD. CIT(A). IN RESPONSE TO THIS THE LD. DR VEHEMENTLY RELIED ON THE ORDER O F THE LOWER AUTHORITIES. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE ISSUE BEFORE US IS WITH REGARD TO THE INCLUSION OF RS.6,67,301/- REPRESENTING PROF IT FROM PARTNERSHIP FIRM IN THE 2 ITA NO.366/KOL/2017 M/S. TUNGANATH REALTORS PRIVATE LTD. A.YR.2009-10 2 COMPUTATION OF INCOME U/S 115JB OF THE ACT. THIS WA S CONSIDERED AS INCOME U/S 115JB OF THE ACT IN THE INTIMATION PROCESSED BY CPC U/S 1 43(1) OF THE ACT. THE LD. AR ARGUED THAT THE SHARE OF PROFIT FROM THE PARTNERSHIP FIRM IS EXEMPT U/S 10 OF THE ACT AND ACCORDINGLY THE SAME WOULD BE OUTSIDE THE AMBIT OF COMPUTATION OF BOOK PROFITS U/S 115JB OF THE ACT. HOWEVER, WE FIND THAT NO FINDING IN THIS REGARD HAS BEEN GIVEN BY THE LD. CIT(A) AND SINCE THE LD. CIT(A) HAD DECIDED THE APPEAL EX-PARTE WE DEEM IT FIT IN THE INTEREST OF JUSTICE AND FAIR PLAY TO SET ASIDE THIS APPEAL TO THE FILE OF THE LD. CIT(A) FOR DENOVO ADJUDICATION OF ISSUE WITH REGARD TO INC LUSION OF PROFIT FROM THE PARTNERSHIP FIRM IN THE COMPUTATION OF BOOK PROFITS U/S 115JB O F THE ACT. ACCORDINGLY GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 07.07.2017 SD/- SD/- [A.T.VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07.07.2017 [RG PS] COPY OF THE ORDER FORWARDED TO: 1. M/S. TUNGANATH REALTORS PRIVATE LIMITED,, C/O S ALARPURIA JAJODIA & CO., 7, C.R.AVENUE, KOLKATA-700072. 2. I.T.O.(CPC)BANGALORE 3. C.I.T.(A)-17, KOLKATA 4. C.I.T.-1, KOLKATA . 5.. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S 3 ITA NO.366/KOL/2017 M/S. TUNGANATH REALTORS PRIVATE LTD. A.YR.2009-10 3