DCIT,C.C-1(2),Kol, Kolkata V. M/s. EMC Limited. , Kolkata

ITSSA 60/KOL/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0399 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-10-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 31-07-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 27-04-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ABHIJIT DATTA
• Keywords: TDS; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH “B” KOLKATA BEFORE SHRI RAJESH KUMAR, HON’BLE ACCOUNTANT MEMBER AND SHRI SONJOY SARMA, HON’BLE JUDICIAL MEMBER IT(SS)A No. 60/KOL/2023 Assessment Year: 2015-16 DCIT, Central Circle-1(2), Kolkata Vs. M/s. EMC Ltd. PAN: AAACE 7582 J (Appellant) (Respondent) Present for: Appellant by : Shri S.M. Surana, Advocate Respondent by : Shri Abhijit Datta, Sr. DR Date of Hearing : 01.08.2023 Date of Pronouncement : 30.10.2023 O R D E R PER SONJOY SARMA, JM: The present appeal has been preferred by the revenue against the order dated 06.02.2023 passed by the Ld. Commissioner of Income Tax (Appeals) -22, Kolkata [hereinafter referred to as the CIT(A)] relevant to AY 2015-16. The revenue has raised the following grounds of appeal: “i. Whether in the facts and circumstances of the case, Hon’ble CIT(A)-22, Kolkata is erred in holding the retention money of Rs. 2,10,12,42,102/- as deferred payment and hence deductible from the total income where the assessee company had itself claimed TDS credit against the retention money which established that the retention money reasonably ascertainable as income in the hands of the assessee in the concerned F.Y. 2014-15 relevant to A.Y. 2015- 16. ii. That department craves leave to add, alter or modify any or all grounds of appeal either before or during course of appellate proceedings.” 2. At the time of hearing, ld. DR submitted that the ld. CIT(A) has erred in law while deciding the issue of retention money of Rs. 2,10,12,42,102/- as deferred payment. Therefore, he viewed that it IT(SS)A No.60/KOL/2023 M/s. EMC Ltd. A.Y. 2015-16 2 is deductable from the total income of the assessee. However assessee company had claimed TDS credit against the retention money which itself established the fact that retention money as ascertainable as income in the hands of assessee. In such situation, the view taken by the ld. CIT(A) cannot be sustained and needs to be set aside of this Tribunal. On the other hand, ld. AR supported the order passed by the ld. CIT(A). The ld. AR further contended that the instant issue is squarely covered in favour of assessee’s own case by the co-ordinate bench in ITA No. 2149/K/2017 dated 27.05.2020 (DCIT vs M/s. EMC Limited) for A.Y. 2014-15 and following the same decision, ld. CIT(A) allowed the claim of the assessee and granted relief to the assessee. Therefore, the impugned order challenged by the department need not required to be interfered by the Tribunal any more. Further, he submitted that the order which was followed by the Tribunal while allowing the appeal of the assessee i.e. ITA No. 2149/Kol/2017 (supra) was challenged by the revenue before the Hon’ble Calcutta High Court, wherein the Hon’ble Calcutta High Court dismissed the appeal filed by the revenue in ITAT/26/2022 IA No GA/2/2022 on 25.07.2022 and sustained the order passed by the Tribunal, therefore there is no iota doubt regarding the findings given by the ld. CIT(A) in favour of the assessee by relying on the decision rendered by the Tribunal. As such the order passed by the ld. CIT(A) needs to be sustained. 3. We after hearing the rival submission of the parties and perusal of the material available on record. We notice that the instant issue is squarely covered in favour of the assessee by the decision of co-ordinate bench in assessee’s own case in ITA No. 2149/Kol/2017 for A.Y. 2014-15 and against which the revenue went into appeal before Hon’ble Calcutta High Court in ITA No. IT(SS)A No.60/KOL/2023 M/s. EMC Ltd. A.Y. 2015-16 3 26/2022 IA No. GA/2/2022 wherein Hon’ble Calcutta High Court vide order dated 25.07.2022 sustained the order passed by the Tribunal. Therefore, the instant issue is squarely covered in favour of the assessee as per the judgement rendered by the Hon’ble Calcutta High Court in ITA No. 26/2022 PCIT vs M/s. EMC Limited and following the same, we sustained the order passed by the ld. CIT(A) and dismiss grounds taken by the revenue. 4. In the result, the appeal of the revenue is dismissed. Order pronounced in the open court on 30.10.2023 Sd/- Sd/- [Sd/- (RAJESH KUMAR) (SONJOY SARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Kolkata, Dated: 30.10.2023 Biswajit, Sr. P.S. Copy to: 1. The Appellant: DCIT, Central Circle-1(2), Kolkata 2. The Respondent: M/s. EMC Ltd., 56, Canal East Road, Bellaghat, Kolkata-700085 & since the company is in CIRP, the address of IRP is: Shri CA Kannan Tirunvengadam, The Resolution Professional of EMC Ltd. Netaji Subhas Villa 18, Karunamoyee Ghat, Flat-3C, Kolkata-700082. 3. The CIT, 4. The CIT (A) 5. The DR //True Copy// [ By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata