ACIT, Circle - 35, Kolkata, Kolkata V. Shri Kedar Nath Agarwal, Kolkata

ITA 421/KOL/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7225 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 11-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: R SALARPURIA
• Keywords: Business expenditure; Rectification of order
• Section: 143(3); 154

Judgement Text

, , , , , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ . . . . , ,, , . .. . ! ! ! !. .. . , , , , '# '# '# '# , '# '# '# '# ] [BEFORE SHRI N. VIJAYAK UMARAN, JM & SHRI C. D. RAO, AM] $ $ $ $ / I.T.A NO.421/KOL/2011 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2006-07 ASSTT. COMMISSIONER OF INCOME TAX -VS.- SHRI KEDAR NATH AGARWAL CIRCLE-35, KOLKATA. KOLKATA [PAN : ADAPA 49 02 G] [ *+ *+ *+ *+ /APPELLANT ] ]] ] [ -.*+ -.*+ -.*+ -.*+/ // / RESPONDENT ] ]] ] *+ *+ *+ *+ / FOR THE APPELLANT : SHRI S. K. ROY -.*+ -.*+ -.*+ -.*+ / FOR THE RESPONDENT : SHRI R. SALARPURIA / 0 !# / 0 !# / 0 !# / 0 !# /DATE OF HEARING : 12.10.2011 1' 0 !# 1' 0 !# 1' 0 !# 1' 0 !# /DATE OF PRONOUNCEMENT : '2 /ORDER . . . . , PER N. VIJAYA KUMARAN, J. M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST O RDER OF LD. CIT(A)-XX, KOLKATA DATED 20.12.2010 FOR ASSESSMENT YEAR 2007-08. 2. INITIALLY, THE ASSESSMENT WAS COMPLETED UNDER SE CTION 143(3) ON 07.11.2008. TO WORK OUT A CALCULATION AGAIN AND THE ISSUE OF REBATE UNDER SEC TION 88E, ASSESSING OFFICER ATTEMPTED TO RECTIFY THE SAME UNDER SECTION 154 OF THE ACT. 3. ON APPEAL TO LD. CIT(A), IT WAS CONTENDED BY THE ASSESSEE THAT THE ISSUE INVOLVES DEBATABLE POINT OF LAW WHICH CAN NOT BE TREATED AS MISTAKE APPARENT FROM RECORD. LD. CIT(A) WAS OF THE VIEW THAT THE ASSESSING OFFICER WAS WRONG AN D UNJUSTIFIED IN ENHANCING THE TAX AS WELL AS SURCHARGE AND EDUCATION CESS ON IT BY WAY OF AN ORD ER OF RECTIFICATION BY DISALLOWING THE TAX REBATE UNDER SECTION 88E OF THE ACT. IN OTHER WORDS, LD. C IT(A) WAS OF THE VIEW THAT ACTION OF THE [ ITA NO. 421/KOL/2011] 2 ASSESSING OFFICER WAS WHOLLY ARBITRARY AND BAD IN L AW AGAINST WHICH THE DEPARTMENT IS IN APPEAL BEFORE US. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE PRECEDENTS. TO ARRIVE AT THE CONCLUSI ON, LD. CIT(A) FOLLOWED THE DECISION OF HONBLE APEX COURT IN THE CASE OF M/S. MEPCO INDUSTRIES LTD . VS. CIT 2009-TIOL-121-IT-LB DATED 19.11.2009. 5. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE R ELIED ON THE RECTIFICATION ORDER AND PRAYED FOR CANCELLATION OF LD. CIT(A)S ORDER. 6, ON THE OTHER HAND, LD. COUNSEL APPEARING ON BEHA LF OF THE ASSESSEE RELIED ON THE DECISION OF HONBLE SUPREME COURT (SUPRA), AND THE DECISION OF ITAT, B BENCH, KOLKATA IN THE CASE OF DCIT VS. ASHIKA STOCK BROKING LTD. VIDE ITA NO.1255 /KOL/2010 FOR ASSESSMENT YEAR 2007-08 AND ANOTHER DECISION OF I.T.A.T., A BENCH, KOLKAT A IN THE CASE OF BANWARI LAL TULSYAN VS. ITO VIDE ITA NO.115/KOL/2011 DATED 05.08.2011. THE TRIB UNAL IN THE IDENTICAL SET OF FACTS IN THE CASE OF BANWARI LAL TULSYAN (SUPRA), WHEREIN THE TRIBUNA L HAS HELD THAT RECTIFICATION PROCEEDINGS UNDER SECTION 154 OF THE ACT TO RECOMPUTE THE REBATE UNDE R SECTION 88E OF THE ACT BY DISALLOWING THE CLAIM OF EXPENSES AS THE ISSUE IS HIGHLY DEBATABLE AND HEREIN TRIBUNAL OBSERVED THAT IT IS NOT CLEAR HOW THE BUSINESS EXPENSES CAN BE DISALLOWED BY INVO KING THE POWER OF RECTIFICATION. 7. RESPECTFULLY, FOLLOWING THE ABOVE RECTIFICATION RELIED BY THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE, WE HAVE NO HESITATION TO CO NFIRM THE ORDER OF LD. CIT(A) BY DISMISSING THE APPEAL OF THE REVENUE. 8. IN THE RESULT, REVENUE APPEAL IS DISMISSED. '2 '2 '2 '2 #' #' #' #' 3 4 56 3 4 56 3 4 56 3 4 56 !# !# !# !# ORDER PRONOUNCED IN THE COURT ON 14.10.2011. SD/- SD/- [ . .. . ! ! ! !. .. . , ,, , '# '# '# '# ] [ . . . . , ,, , ] [ C. D. RAO ] [ N. VIJAYAKUMARAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER D ATED : 14 TH OCTOBER, 2011. [ ITA NO. 421/KOL/2011] 3 '2 0 -%% 7''/ COPY OF THE ORDER FORWARDED TO: 1. *+ /APPELLANT : ASSTT.COMMISSIONER OF INCOME TAX, CIR CLE-35, 18, RABINDRA SARANI, PODDAR C OURT, KOLKATA-700 001. 2 -.*+ / RESPONDENT : SHRI KEDAR NATH AGARWAL, 405, TODI CHAMBERS, 2, LAL BAZAR STREET, KOLKATA -700 001. 3. %2 - / CIT, 4. %2 ()/ CIT(A), KOLKATA. 5. ?%4 -%/ DR, KOLKATA BENCHES, KOLKATA [. -%/ TRUE COPY] '2/ BY ORDER, /ASSTT REGISTRAR [KKC AB %C %D /SR.PS]