Balageria Central Co-Operative Bank Ltd., Purba Medinipur V. ACIT, CIR-27, HALDIA, Purba Medinipur

ITA 655/KOL/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1258 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 12-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SOUMESH D ASH
• Assessee Lawyers: SOUMITRA CHOUDHARY
• Keywords: Depreciation
• Section: 43B

Judgement Text

ITA NO.655/KOL/2016 [ASSESSMENT YEAR: 2011-12] IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH 'A, KOLKATA BEFORE SH. P.M.JAGTAP, VICE PRESIDENT AND SH. S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.655/KOL/2016 [ASSESSMENT YEAR: 2011-12] BALAGERIA CENTRAL CO- OPERATIVE BANK LTD., SARASWATITAL, CONTAI, DIST.- PURBA, MEDINIPUR-721401. PAN-AAALB0087A VS ACIT, CIRCLE-27, HALDIA, BASUDEOPUR, P.O.- KHANJAN CHAK, HALDIA, PURBA MEDINIPUR-721101. (APPELLANT) (RESPONDENT) APPELLANT BY SH. SOUMITRA CHOUDHARY, ADVOCATE RESPONDENT BY SH. SOUMESH DASH, ADDL. CIT. SR.DR DATE OF HEARING 04.09.2018 DATE OF PRONOUNCEMENT 28.11.2018 ORDER PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 20.01.2016 PASSED BY CIT(A)-7, KOLKATA FOR AY 2011-12. 2. GROUND NOS. 1 & 6 ARE GENERAL IN NATURE, REQUIRE NO ADJUDICATION, ARE DISMISSED. 3. GROUND NO.2, LD.AR SUBMITTED THAT THE ASSESSEE IS NOT INTERESTED IN PROSECUTING THE ISSUE RAISED IN GROUND NO.2 AND PRAYED TO DISMISS AS NOT PRESSED. WE, THEREFORE, DISMISS GROUND NO.2 AS NOT PRESSED. 1 ITA NO.655/KOL/2016 [ASSESSMENT YEAR: 2011-12] 4. GROUND NO.3 IS RELATING TO CONFIRMATION OF ADDITION MADE ON ACCOUNT OF PROVISION ON INVESTMENTS. 5. HEARD BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOTED FROM THE RECORD THAT THE ADDITION MADE BY THE AO AS CONFIRMED BY THE CIT(A) IS NOTHING BUT DEPRECIATION VALUE OF PROVISION ON INVESTMENTS. THE SAME IS SUPPORTED VIDE BALANCE SHEET AS ON 31.03.2011 PLACED AT PAGES 45 & 46 OF THE PAPER BOOK. IT IS NOTED FROM THE ORDER OF AO, THE CLAIM OF THE ASSESSEE WAS REJECTED IN TERMS OF CBDT INSTRUCTION NO.17/2018 DATED 26.11.2008. IT IS ALSO NOTED FROM THE IMPUGNED ORDER THAT THE ASSESSEE DID NOT FURNISH THE DETAILS OF SHARE-WISE VALUE DIMINISHED WITH SUFFICIENT PROOF. THEREFORE, IN OUR OPINION, THE MATTER SHOULD BE CONSIDERED BY THE AO AGAIN. LD. DR DID NOT CONTROVERT THE SAME. THEREFORE, WE DEEM IT PROPER TO REMAND THE MATTER TO THE FILE OF AO TO VERIFY THE EXACT NATURE OF INVESTMENTS AS PER THE INSTRUCTION NO.17/2018 OF CBDT (SUPRA). THUS, GROUND NO.3 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. GROUND NO.4 RAISED BY THE ASSESSEE CHALLENGING THE ACTION OF THE CIT(A) IN CONFIRMING THE DISALLOWANCE MADE ON ACCOUNT OF UNPAID SERVICE TAX BY INVOKING SECTION 43B OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). 7. HEARD BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THE SERVICE TAX WAS NOT DEBITED TO THE P&L ACCOUNT AND, THEREFORE, WE FIND FORCE IN THE ARGUMENTS OF THE LD.AR THAT NO DISALLOWANCE IS MAINTAINABLE WHEN THE SAID SUM IS NOT CLAIMED AND NOT DEBITED TO THE P&L A/C. WE ALSO FIND FORCE IN THE ARGUMENTS THAT WHEN THE SERVICE TAX WAS PAID BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME AND NO DISALLOWANCE COULD BE MADE U/S 43B OF THE ACT. THE LD.AR 2 ITA NO.655/KOL/2016 [ASSESSMENT YEAR: 2011-12] UNDERTAKES TO FILE RELEVANT EVIDENCE BEFORE THE AO SHOWING THE SERVICE TAX WAS PAID EVEN BEFORE FILING OF RETURN OF INCOME. THEREFORE, TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE LD.AR AND LD.DR AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO REMAND THE MATTER TO THE FILE OF AO FOR HIS VERIFICATION AS DISCUSSED ABOVE. THE ASSESSEE IS LIBERTY TO FILE EVIDENCE, IF ANY, IN SUPPORT OF HIS CONTENTION. THUS, GROUND NO.4 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. GROUND NO.5 IS CONSEQUENTIAL IN NATURE, REQUIRES NO ADJUDICATION AND IT IS DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.11.2018. SD/- SD/- (P.M.JAGTAP) (S.S.VISWANETHRA RAVI) VICE PRESIDENT JUDICIAL MEMBER DATE:- 28.11.2018 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT- BALAGERIA CENTRAL CO-OPERATIVE BANK LTD., SARASWATITAL, CONTAI, DIST.-PURBA, MEDINIPUR-721401. 2. RESPONDENT- ACIT, CIRCLE-27, HALDIA, BASUDEOPUR, P.O.- KHANJAN CHAK, HALDIA, PURBA MEDINIPUR-721101. 3. CIT-KOLKATA 4. CIT(APPEALS)-KOLKATA 5. DR: ITAT -KOLKATA BENCHES AR/H.O.O ITAT, KOLKATA 3