M/s Nicco Corporation Ltd., Kolkata V. JCTI, (OSD), CIT-1, KOLKATA, Lucknow

ITA 639/KOL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1802 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEBASISH LAHIRI
• Assessee Lawyers: P K CHOUDHURY

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.639/KOL/2016 ASSESSMENT YEAR:2009-10 M/S NICCO CORPORATION LTD. NICCO HOUSE, 2, HARE STREET, KOLKATA-700001 [ PAN NO.AABCN 0570 G ] / V/S . JCIT (OSD), CIT-1 AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKTA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI P.K. CHOUDHURY, AR /BY RESPONDENT SHRI DEBASISH LAHIRI, ADDL. CIT-DR /DATE OF HEARING 20-08-2018 /DATE OF PRONOUNCEMENT 05-09-2018 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATAS O RDER DATED 01.02.2016, PASSED IN CASE NO.203/CIT(A)/5/(OSD)/11-12/14-15, IN PROCE EDINGS U/S 115WE(3) OF THE INCOME TAX ACT, 1961; IN SHORT AS THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES SOLE SUBSTANTIVE GROUND CHALLENGE S CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION DETERMINING ITS FRINGE BENEFIT VALUE OF 1,44,47,545/-, ASSESSMENT OF FRINGE BENEFIT TAX @ 30% COMING TO 43,34,264/-, 10% SURCHARGE AT 4,33,426/- AND EDUCATION CESS OF 1,43,031/- FOR THE SOLE REASON THAT SINCE IT HAD IN CURRED LOSSES ITA NO. 639/KOL/2016 A.Y. 2009 -10 M/S NICCO CORPORATION LTD. VS. JCIT(OSD), C IT-1/KOL. PAGE 2 DURING THE RELEVANT ASSESSMENT YEAR THE ABOVE SURCH ARGE @ 10% WOULD NOT APPLY AS IT WAS NOT A CASE INVOLVING PROFITS TO BE EXCEEDING 1 CRORE THRESHOLD LIMIT. LEARNED COUNSEL REITERATES THE SAME VEY PLEA DURING THE COU RSE OF HEARING THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AS WELL AS ON FACTS I N IMPOSING 10% SURCHARGE IN VIEW OF THE ABOVE HUGE LOSSES IN THE IMPUGNED ASSESSMENT YE AR. LEARNED DEPARTMENTAL REPRESENTATIVE IS VERY FAIR IN SUBMITTING THAT ALL RELEVANT FACTS CORRESPONDING TO INSTANT SOLE ISSUE HAVE NEITHER BEING DISCUSSED IN ASSESSME NT ORDER NOR IN THE CIT(A)S ORDER. WE THEREFORE DEEM IT APPROPRIATE THAT IT WOULD BE I N THE LARGER INTEREST JUSTICE IN CASE THE ASSESSING OFFICER ADJUDICATES THE INSTANT ISSUE AFRESH AS PER LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. TH E ASSESSEES SOLE SUBSTANTIVE GRIEVANCE IS ACCEPTED FOR STATISTICAL PURPOSE THERE FORE. 3. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 05/09/2018 SD/- SD/- ( &) (( &) (J.SUDHAKAR REDDY) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS ) - 05/09/2018 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S NICCO CORPN. LTD., NICCO HOUSE, 2, H ARE STREET, KOL-01 2. /RESPONDENT-JCIT(OSD),CIT-1/KOL AAYAKAR BHAWAN, P-7 , CHOWRINGHEE SQUARE, KOLKATA -69 3. , - / CONCERNED CIT 4. - - / CIT (A) 5. . ((, , , /DR, ITAT, KOLKATA 6. 2 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO ,,