ITO, Ward - 10(1), Kolkata , Kolkata V. M/s. Primentor Consultancy and Services Private Limited , Kolkata

ITA 96/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7457 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 16-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SITAL DAS CITSRDR
• Keywords: Rectification of order; Revised return
• Section: 143(3); 142(1); 154; 139

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 96 / KOL / 20 1 8 ASSESSMENT YEAR :2009-10 INCOME TAX OFFICER, WARD-10(1), P-7, CHOWRINGHEE SQUARE, 3 RD FLOOR, KOLKTATA-69 V/S . M/S PRIMENTOR CONSULTANCY AND SERVICES PVT. LTD., 1 ST FLOOR,BD-9, SECTOR-1, KOLKATA-700 064 [ PAN NO.ADCP 1468 M ] /APPELLANT .. / RESPONDENT /BY APPELLANT SITAL DAS, ADDL. CIT-SR-DR /BY RESPONDENT SHRI SOUMITRA CHOUDHURY, ADVOCATE /DATE OF HEARING 18-04-2019 /DATE OF PRONOUNCEMENT 30-04-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2009-10 A RISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-4 KOLKATAS OR DER DATED 13.10.2017 PASSED IN CASE NO.1197/CIT(A)-4/10(1)/2014-15, INVO LVING PROCEEDINGS U/S 154 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THE INSTANT APP EAL SUFFERS FROM THREE DAYS DELAY IN FILING. IT HAS PLACED ON RECORD ITS CONDON ATON PETITION / AFFIDAVIT ON RECORD. THE ASSESSEE IS FAIR ENOUGH IN NOT DISPUTIN G THE SOLEMN AVERMENT THEREIN. WE ACCORDINGLY CONDONE THE IMPUGNED THREE DAYS DELAY IN FILING OF ITA NO.96/KOL/2018 A.Y. 2009-10 ITO WD-10(1) KOL. VS. M/S PRIMENTOR CONSULTANCY & SERVICES PVT. LTD. PAGE 2 THE REVENUES INSTANT APPEAL. THE CASE IS NOW TAKEN UP FOR ADJUDICATION ON MERITS. 3. THE REVENUES FOLLOWING SUBSTANTIVE GROUNDS READ S AS UNDER:- (I) THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE R ECTIFICATION U/S.154 ON THE ISSUE OF CHANGE IN ACCOUNTING POLICY IS NOT JUS TIFIED, WHEN THE AO HAS RIGHTLY RECTIFIED THE MISTAKE WHICH IS PLAINLY AND OBVIOUSLY INCONSISTENT WITH THE SPECIFIC AND CLEAR PROVISIONS AND WHEN THE REVISED RETURN BY THE ASSESSEE WAS IS INVALID. (II) THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING TH E FACT THAT AS PER THE PROVISIONS OF SUB SECTION (5) OF SECTION 139 OF THE IT ACT, 1961, AN ASSESSEE CAN ONLY FILE A REVISED RETURN ONLY IF IT DISCOVERS ANY OMISSIONS OR ANY WRONG STATEMENT IN THE ORIGINAL RETURN, WHER EAS, THE ASSESSEE COMPANY FILED THE REVISED RETURN DUE TO NON REALIZA TION OF ACCRUED INCOME FROM SOFTWARE EXPORTS AND NOT DUE TO DISCOV ERY OF ANY OMISSION OR ANY WRONG STATEMENT IN THE ORIGINAL RETURN. (III) THE LD. CIT(A) HAS ERRED IN DELETING THE ADDI TIONS MADE BY THE AO ON ACCOUNT OF PROVISION OF GRATUITY OF RS.8,65,470 /- ON GROUND THAT SINCE PROVISION FOR GRATUITY WAS NOT CLAIMED IN THE REVISED RETURN IT COULD NOT HAVE BEEN ADDED BY THE AO IN THE RECTIFICATION ORDER, WHEREAS, THE REVISED RETURN FILED BY THE ASSESSEE IS INVALID AND THE DISALLOWANCES WERE MADE BY THE AO BASED ON RETURN OF INCOME SUBMI TTED ORIGINALLY. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENT LY CONTENDS DURING THE COURSE OF HEARING THAT THE ASSESSING OFFICER HA D RIGHTLY INVOKED SEC. 154 RECTIFICATION PROCEEDINGS. HE THEN TERMS THE ASSESS EES REVISED RETURN TO BE NOT ADMISSIBLE AS PER PROVISION OF THE ACT. WE FIND NO MERIT IN REVENUES INSTANT ARGUMENT BASED ON THE ABOVE EXTRACTED PLEAD ING. CASE FILE SUGGESTS THAT THE ASSESSING OFFICER HAD HIMSELF ACCEPTED ASS ESSEES REVISED RETURN DATED 30.09.2011 AS PER SEC. 143(3) ORDER DATED 14. 12.2011. HE HAD ALSO ISSUED THE NECESSARY QUESTIONNAIRE TO THE ASSESSEE TO THIS EFFECT MAKING ALL THE RELEVANT QUERIES ON 17.10.2011 U/S 142(1) OF TH E ACT. ALL THESE CRUCIAL FACTS HAVE GONE UNREBUTTED FROM THE REVENUE SIDE DURING T HE COURSE OF HEARING. WE THEREFORE HOLD THAT CIT(A) HAS RIGHTLY HELD IN V IEW OF THE VARIOUS JUDICIAL PRECEDENTS THAT IT IS NOT AN ERROR APPARENT ON THE CASE OF RECORD INVOLVED AT ITA NO.96/KOL/2018 A.Y. 2009-10 ITO WD-10(1) KOL. VS. M/S PRIMENTOR CONSULTANCY & SERVICES PVT. LTD. PAGE 3 ASSESSING OFFICERS BEHEST. THE REVENUE FAILS IN IT S VARIOUS SUBSTANTIVE GROUNDS THEREBY. 5. THIS REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 30/ 04/2019 SD/- SD/- ( %) (' %) (DR.A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 30 / 04 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-10(1), P-7, CHOWRINGHEE SQ, 3 RD FLOOR, KOLKATA-69 2. /RESPONDENT-M/S PRIMENTOR CONSULTANCY & SERVICES PV T. LTD., 1 ST FLOOR, BD-9, SECTOR-1, KOLKATA-64 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 3,