Edusys Services Pvt. Ltd., Bangalore V. DCIT, Bhubaneswar

ITA 406/CTK/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3619 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 05-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D S VIVEK
• Keywords: Revised return
• Section: 115JB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO. 4 06 / CTK /20 15 ( / ASSESSMENT YEAR : 20 11 - 20 12 ) EDUSYS SERVICES PRIVA TE LIMITED M/S SURESH & CO., CHARTERED ACCOUNTANTS, #43/16, SRINIDHI, 1 ST FLOOR, SURVEYOR STREET, BASAVANAGUDI, BANGALORE - 560004 VS. DCIT, CIRLCE - 1(1), BHUBANESWAR ./ ./ PAN/GIR NO. : A A B CE 3423 B ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI D.S.VIVEK , AR /REVENUE BY : SHRI SUBHENDU DUTTA , CITDR / DATE OF HEARING : 25 / 0 7 /201 7 / DATE OF PRONOUNCEMENT 27 / 0 7 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH E ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF CIT(A) - 1 , BHUBANESWAR , PASSED IN ITA PPEAL NO. 0022 /2014 - 15, DATED 10.06.2015 , U/S. 1 43(3) OF THE INCOME TAX ACT. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL : - 1. THE CIT(A) HAS ERRED IN STATING THAT THERE IS NO CAUSE OF GRIEVANCE AGAINST THE ORDER OF THE ASSESSING OFFICER FAILING TO NOTE THAT EVEN A NON - ACTION BY THE AO WHICH WAS SUPPOSED TO HAVE DONE CALLS FOR REVIEW (AS DECIDED BY SUPREME COURT IN THE CASE OF CIT VS. BHAGAT CONSTRUCTION CO. PVT. LTD. - APPEAL NO.1169 OF 2006). 2. THE CIT(A) HAS ERRED IN UPHOLDING THE ORDER OF THE AO IN CONSIDERING THE DIVIDEND DISTRIBUTION TAX APPLICABLE FOR THE ASSESSMENT YEAR 2012 - 13 IN THE ASSESSMENT YEAR 2011 - 12 AND ALSO IN COMPUTING AND IN LEVYING DIVIDEND DISTRIBUTION TAX (DDT) LIABILITY OVER AND ABOVE THE TAX ACTUALLY DUE THE BASIS ALONG WITH INTEREST THEREON. 2. THE CIT(A) HAS ERRED IN STATING THAT THE APPELLANT SHOULD HAVE GOT THE CHALLAN RECTIFIED BY FILING REVISED RETURN OR BY MAKING DATA ENTRY - CORRECTION FAILING TO APPRECIATE THAT THE ASSESSEE HAD IN FACT MADE AN APPLICATION FOR DATA ENTRY CORRECTION IN THE CHALLAN WHICH WAS NOT ACTED UPON BY THE RESPECTED OFFICERS. ITA NO. 406/2015 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY ENGAGED IN THE BUSINESS OF IT ENABLED SERVICES (WEB BASED MANAGEMENT AND QUALITY COURSES) AND HAS TWO UNITS, ONE STPI AND THE OTHER NON - STPI UNIT AND T HE ASSESSEE CLAIMED EXEMPTION U/S.10 A OF THE ACT AND FILED THE RETURN OF INCOME ELEC TRONICALLY ON 29.11.2011 WITH TOTAL LOSS OF RS.87,59,221/ - AND THE R ETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) & 142(1 ) OF THE ACT WERE ISSUED . IN COMPLIANCE , THE LD. AR OF T HE ASSESSEE APPEARED FROM TIME TO TIME AND FURNISHED THE DETAILS AND THE AO ACCEPTED THE RETURNED INCOME AND PASSED ORDER U/S.143(3) OF THE ACT DATED 12.3.2014 BUT THE AO HAS RAISED THE DEMAND OF RS. 2,37,531/ - IN RESPECT OF D IVIDEND D ISTRIBUTION T AX (DDT) INCLUDING INTEREST. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE HAS FILED AN APPEAL BEFORE THE CIT(A). THE LD. CIT(A) CONSIDERED THE GROUNDS RAISED BY THE ASSESSEE AND THE SUBMISSIONS MADE IN THE COURSE OF APPELLATE PROCEEDINGS IN RESPECT OF DIVIDEN D DECLARATION AND THE FACT S ON PAYMENT OF DDT. BUT THE CIT(A) WAS NOT SATISFIED WITH THE EXPLANATION S AND CONCORD WITH THE FINDINGS OF AO IN RAISING THE DEMAND AND OBSERVED AT PAGE 2 & 3 OF HIS ORDER AND DISMISSED THE ASSESSEES APPEAL. 5. BEING AGGRIEVED WITH THE ORDER OF CIT(A), THE ASSESSEE HAS FILED APPEAL BEFORE THE TRIBUNAL. 6. BEFORE US, LD. AR SUBMITTED THAT THE ASSESSEE COMPANY HAS FILED THE RETURN OF INCOME WITH TOTAL LOSS BUT PAID THE TAXES AS PER THE PROVISIONS OF SECTION 115JB OF THE ACT. D URI NG THE FINANCIAL YEAR 2010 - ITA NO. 406/2015 3 2011 THE ASSESSEE COMPANY HAS DECLARED DIVIDEND AND DDT WAS PAID AS PER THE CALCULATION S, WHEREAS THE FINAL DIVIDEND FOR THE FINANCIAL YEAR 2010 - 2011 WAS PAID IN THE ASSESSMENT YEAR 2012 - 2013. THE ASSESSEE HAS WRONGLY MENTIONED I N THE CHALLAN AS ASSESSMENT YEAR 2011 - 2012 IN RESPECT OF DDT PAID ON 15.10.2011 INSTEAD OF ASSESSMENT YEAR 2012 - 2013 . FURTHER, THE DDT WAS PAID IN THE FINANCIAL YEAR 2011 - 2012 AND THE SURCHARGE O N DDT FOR A.Y.2012 - 2013 WAS 5% AS AGAINST 7.5% APPLICABLE TO ASSESSMENT YEAR 2011 - 2012 , THEREFORE, THE AO HAS RAISED AN ADDITIONAL DEMAND CONSIDERING THE RATE OF SURCHARGE AT 7.5% AND THESE FACTS WERE EXPLAINED IN THE ASSESSMENT PROCEEDINGS. FURTHER, THE ASSESSEE COMPANY HAS FILED AN A PPLICATION U/S.154 OF THE ACT O N 12.8.2014 CONSIDERING THE MISTAKE APPARENT FROM RECORD. T HE LD. AR FILED PAPER BOOK TO SUBSTANTIATE HIS ARGUMENTS WITH WRITTEN SUBMISSIONS AND PRAYED FOR ALLOWING THE APPEAL. 7. CONTRA, LD. DR RELIED ON THE ORDER OF THE CIT(A). 8. WE HEARD THE RIVAL SUBM ISSIONS AND PERUSED THE MATERIAL ON RECORD. THE LD. AR SUBMITTED THAT THE AO HAS NOT CONSIDERED THE FACTS OF RECTIFICATION OF MENTIONING THE WRONG ASSESSMENT AND ALSO THE ASSESSEE COMPANY HAS FILED THE EXPLANATION IN THE ASSESSMENT PROCEEDINGS. THE L D. AR DREW OUR ATTENTION TO SUBMISSIONS MADE BEFORE THE AO AT PAGE 24 OF THE PAPER BOOK WHERE THE DETAILS OF CHALLANS AND PAYMENTS OF DDT AND OTHER DETAILS WERE FURNISHED WITH THE AO. WE ON PERUSAL OF THE ASSESSMENT ORDER FOUND THAT THE AO HAS NOT DEALT ON THIS ISSUE AND RAISED THE DEMAND IN THE ASSESSMENT ORDER U/S.143(3) OF THE ACT PASSED ITA NO. 406/2015 4 ON 12.3.2014. THE L D. AR ALSO DREW OUR ATTENTION TO THE RECTIFICATION PETITION U/S.154 OF THE ACT AND THE FINANCIAL STATEMENTS AND THE CORRECTION OF CHALLAN S IN THE PAPER BOOK AND EMPHASISED THAT NO ACTION WAS TAKEN BY THE REVENUE TILL TODAY ON TH E RECTIFICATION PETITION AND RELIED ON THE JUDICIAL DECISIONS AND THE CBDT CIRCULAR . WE FIND STRENGTH IN THE ARGUMENTS OF THE LD. AR AND IN THE INTEREST OF JUSTICE, WE REMIT THE DISPUT ED ISSUE TO THE FILE OF AO FOR VERIFICATION AND EXAMINATION OF MATERIAL FILED AND PASS THE ORDERS . NEVERTHELESS TO SAY THAT THE ASSESSEE SHOULD BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING AND SHALL COOPERATE IN SUBMITTING THE INFORMATION BEFORE PASSING THE ORDER AND THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . 9 . THUS, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 27 /07 / 201 7 . SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 27 / 0 7 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - EDUSYS SER VICES PRIVATE LIMITED M/S SURESH & CO., CHARTERED ACCOUNTANTS, #43/16, SRINIDHI, 1 ST FLOOR, SURVEYOR STREET, BASAVANAGUDI, BANGALORE - 560004 2. / THE RESPONDENT - DCIT, CIRCLE - 1(1), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//