The Braithwaite Burn & Jessop Construction Company Ltd., Kolkata V. ITO, Ward - 11(1), Kolkata , Kolkata

ITA 985/KOL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2282 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 11-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURAV KUMAR
• Assessee Lawyers: ANANYA RATH
• Keywords: Earning of tax free income
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.985/KOL/2018 ASSESSMENT YEAR:2012-13 THE BRAITHWAITE BURN AND JESSOP CONSTRUCTION CO. LTD. [IN THE CASE OF BHARAT BHARI UDYOG NIGAM LTD. AMALGAMATING CO.] 27, R.N. MUKHERJEE ROAD, KOLKATA-700 001 [ PAN NO.AAACT 9760B ] / V/S . INCOME TAX OFFICER, WARD-11(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT MISS. ANANYA RATH, ADVOCATE /BY RESPONDENT SHRI SAURAV KUMAR, ADDL. CIT-DR /DATE OF HEARING 06-11-2018 /DATE OF PRONOUNCEMENT 14-11-2018 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 IS DIRECTED AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-4, KOLKATAS O RDER DATED 13.02.2018 PASSED IN CASE NO.744/CIT(A)-4/W-11(1)/15-16 INVOLVING PROCEE DINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES FIRST FORMER SUBSTANTIVE GROUND O N MERITS SEEKS TO CHALLENGE BOTH THE LOWER AUTHORITIES ACTION DISALLOWING 0.5% OF AVERAGE INVESTMENTS UNDER RULE 8D(2)(III) OF THE INCOME TAX RULE, 1962 R.W.S 14A O F THE ACT. AS PER ASSESSMENT ORDER DATED 30.03.2015 THE REVENUES CASE IS THAT A SSESSEE HAD INVESTED AN AMOUNT OF 45,84,51,220/- IN THE RELEVANT PREVIOUS YEAR FOR EA RNING EXEMPT INCOME. IF FAILS TO DISPUTE THAT THERE IS NO EXEMPT INCOME RECORDED TO HAVE BEEN DERIVED IN THE RELEVANT PREVIOUS YEAR IN ASSESSMENT ORDER. I THEREFORE FOLL OW HON'BLE JURISDICTIONAL HIGH ITA NO.985/KOL/2018 A.Y . 2012-13 THE BRAITHWAITE BURN & JESSOP CONSTRUCTION CO. LTD. VS. ITO WD-11(1), KOL. PAGE 2 COURTS JUDGMENT IN CIT VS. M/S ASHIKA GLOBAL SECURITIES LTD ITAT 100/2014, GA NO.2122 OF 2014 REJECTING SEC. 14A READ WITH RULE 8DS APPLICATION IN ABSENCE OF ANY EXEMPT INCOME DERIVED IN THE RELEVANT PREVIOUS YEAR TO DELETE THE IMPUGNED DISALLOWANCE. THE ASSESSEE SUCCEEDS IN ITS FORMER S UBSTANTIVE GROUND ON THIS COUNT ALONE. 3. NEXT COMES SEC. 36(1)(IV) EMPLOYERS CONTRIBUTIO N TO ESI DISALLOWANCE OF 24,126/-. THE REVENUES CASE IS THAT ASSESSEE HAD D EPOSITED THE SUM BEYOND THE DUE DATE PRESCRIBED IN THE RESPECTIVE STATUTE. IT FAILS TO REBUT THE BASIC FACT THAT THE ASSESSEE HAD DEPOSITED THE IMPUGNED CONTRIBUTION WELL BEFORE THE DUE DATE OF FILING RETURN U/S. 139(1) OF THE ACT. HON'BLE JURISDICTIONAL HIGH COU RTS DECISION IN M/S AKZO NOBEL INDIA LTD. VS. CIT ITA NO. 110 OF 2011 DECIDED ON 14.06.2016 HOLDS THAT IMPUGNED DISALLOWANCE IS NOT SUSTAINABLE IN CASE THE RELEVAN T DUES ESI/PF REDUCED ARE DEPOSITED BEFORE THE DUE DATE OF FILING RETURN U/S 139(1) OF THE ACT. THE ASSESSEE SUCCEEDS IN ITS SECOND SUBSTANTIVE GROUND AS WELL THEREFORE. 4. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 14/11/2018 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS - 14/11/2018 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-THE BRAITHWAITE BURN & JESSOP CONSTRUCTI ON CO.LTD., 27 R.N. MUKHERJEE ROAD, KOL-001 2. /RESPONDENT-ITO WD-11(1), ACIT, CIRI-1, P-7, CHOWRI NGHEE SQ. KOL-69 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ / ',