Kish Developers Private Limited, Kolkata V. Assistant Director of Income tax, CPC, Banlalore

ITA 81/KOL/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0655 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 23-08-2022
• Assessment Year: 2017-2018
• Appeal Filed On: 10-02-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; TDS; FORM 26AS
• Section: 154; 139; 250

Judgement Text

आयकर अपील य अ धकरण, कोलकाता पीठ ‘A’ एसएमसी IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCH-A (SMC) सम : ी मनीष बोरड , लेखा सद य Before: SHRI MANISH BORAD, ACCOUNTANT MEMBER आयकर अपील सं.य / ITA No. 81/Kol/2022 नधा रण वष ः Assessment Year:2017-18 Kish Developers Pvt. Ltd 5A/1B Lord Sinha Road, Kolkata-700 071. बनाम / V/s . ADIT, CPC, Bangalore, Electronic City P.O, Bangalore-560500, Karnataka. PAN: AAECK0436D अपीलाथ /Appellant .. यथ /Respondent अपीलाथ क ओर से/By Appellant Shri Rajat Agrawal, FCA, Ld.AR यथ क ओर से/By Respondent Shri Biswanath Das, CIT, Ld.DR स ु नवाई क तार ख/Date of Hearing 24-08-2022 घोषणा क तार ख/ Date of Pronouncement 17-10-2022 आदेश / O R D E R The above captioned appeal is directed at the instance of the assessee against the order dated 15-12-2021 of the Ld. Commissioner of Income-tax, Appeals [hereinafter referred to as ‘CIT(A)’], National Faceless Appeal Centre, Delhi passed u/s. 250 of the Income-tax Act, 1961 hereinafter referred to as ‘the Act’ for the AY 2017-18. 2. The assessee has raised the following grounds of appeal :- 1. For that CIT (A) has erred both in law and the facts of the case in holding that a dead entity, M/s Kish Developers P. Ltd. cannot be expected to file it's return and therefore the return filed by M/s Kish Developers P. Ltd. itself for the period ITA No. 81/Kol/2022 AY 2017-18 Kish Developers P.Ltd. Page 2 01.04.2016 to 02.10.2016, is not valid. Assessee has correctly filed the return under section 139 of Act. 2. For that on the facts and in the circumstances of the case and in the law, CIT (A) had erred in passing the impugned order not providing rebuttal (speaking order) to our written submission dated 5th December 2021 filed by the appellant assessee company before the CIT(A) in the course of proceedings u/s.250 of the Act. 3. For that under the facts and circumstances of the case the Assistant Director of Income Tax, CPC, Bangalore (in short referred as AO) and CIT(A) had erred in not allowing TDS credit which is evidently reflecting in 26AS of Kish Developers Pvt Ltd in TAN(CALl01499B) of the Deductor (ICICI Bank) amounting to Rs. 42,351/- 4. For that under the facts and circumstances of the case AO & CIT(A) had erred in not allowing TDS credit which is evidently reflecting in 26AS of Kish Developers Pvt Ltd in TAN (MUMU05151G) of the Deductor (Axis Bank) to the extent of Rs. 2,09,487/- 5. For that the AO & CIT(A) had erred in not considering the principle of natural justice while passing 'rectification order under section 154 and 250 of Act, 1961 by not giving any opportunity of being heard. 6. For that your appellant assessee craves leave to add or alter and modify the grounds of appeal before or at the time of appeal hearing. 3. I have heard the rival contentions and perused the record placed before us. Facts observed by me are that the assessee is a private limited company. During FY 2016-17 on 3.10.2016 it converted into a limited liability partnership firm on 03-10-2016. Returns were filed for both the entities i.e, private limited company and limited liability partnership firm. TDS were deducted on the receipts under the respective two entities. ITA No. 81/Kol/2022 AY 2017-18 Kish Developers P.Ltd. Page 3 4. As regard to ground no. 1 raised by the assessee is concerned, I find that the ld. CIT(A) grossly erred in holding that entity, M/s Kish Developers P.Ltd cannot be expected to file the return and therefore, the return filed by M/s. Kish Developers P.Ltd for the period of 1.4.2016 to 02-10-2016 is not valid. I fail to understand how and on what basis this finding has been given. It is well settled rule of law provided under the Act that if a private limited company is active even for a day during a financial year than also it is required to file its IT Return. In the case before me the assessee company was actively working from 1.4.2016 to 2.10.2016. It earned income during this period and financial statements are duly audited and therefore, has correctly filed the return of income and for the remaining period 3-02-2016 to 31-3.2016 the limited liability partnership was actively working, which was converted from private limited company to limited liability to partnership firm for carrying on the business. It also prepared the books of account and rightly filed its income-tax return. I am, therefore, inclined to hold that the return filed by the assessee company for the period 1.4.2016 to 02-10-2016 is a valid return. Ground no. 1 raised by the assessee is allowed. 5. As ground nos. 2 to 5 of assessee’s appeal are concerned, they are mainly focused for having not been allowed the credit of TDS deducted by ICICI Bank at Rs. 42,351/- and TDS deducted by Axis Bank at Rs. 2,09,487/-, it is contended by the ld. Counsel for the assessee that both the alleged amount of TDS are duly reflected in Form 26AS issued in the name of M/s. Kish Developers P.Ltd by the Income-tax authority on the e-portal. Ld. DR failed to controvert this fact. I am, therefore, of the considered view that it would be fair and in the interest of justice that this issue of verification of alleged TDS amounts needs to be restored to the file of the Jurisdictional AO, who shall examine the veracity of the claim of the ITA No. 81/Kol/2022 AY 2017-18 Kish Developers P.Ltd. Page 4 assessee and if the same is found to be correct and if the assessee has duly disclosed the income in its financial statement which have suffered alleged TDS deduction then the credit of TDS of Rs.42,351 and Rs.2,09,487 should be allowed to the assessee. Needless to mention that reasonable opportunity of hearing should be provided to the assessee for putting forth its claim. Thus, ground nos. 2 to 5 raised by the assessee are allowed for statistical purpose. 6. Ground no. 6 is general in nature, which requires no adjudication. 7. In the result, the appeal of assessee is partly allowed for statistical purposes. आदेश ख ु ले यायपीठ म दनांक 17 -10- 2022 को उ घो षत। Order pronounced in open court on 17-10-2022 Sd/- (MANISH BORAD) ACCOUNTANT MEMBER Kolkata/ कोलकाता Date/ दनांकः- 17/10/2022 **PP/Sr.PS आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. अपीलाथ /Appellant- Kish Developers Pvt. Ltd, 5A/1B Lord Sinha Road, Kolkata-700 071. 2. यथ /Respondent- ADIT, CPC, Bangalore, Electronic City P.O, Bangalore-560500, Karnataka. 3. . संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त- अपील / CIT (A) 5. वभागीय त न ध, आयकर अपील य अ धकरण कोलकाता / DR, ITAT, Kolkata 6. गाड फाइल / Guard file. /True Copy/ By order/आदेश से, सहायक पंजीकार आयकर अपील य अ धकरण,कोलकाता ।