M/s Sri Bhanwar Lal Baid, Kolkata V. ACIT, Central Circle-XXV, Kolkata, Kolkata

MA 124/KOL/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5614 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 12-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 05-09-2016
• Court: TRIBUNAL
• Department Lawyers: MD GHYAS UDDIN JCIT LD
• Assessee Lawyers: S M SURANA LD
• Section: 234B; 145; 154; 15

Judgement Text

INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA BEFORE SHRI P.M. JAGTAP, AM & SHRI S.S.VI SWANETHRA RAVI, JM M.A. NO. 124/KO L/2016 [IN I.T A NO. 732/KOL/2013 A.Y 2009-10] M/S. SRI BHANWAR LAL BAID VS. ACIT, CENTRAL CIRC LE-XXV, PAN ADUPB 6550H KOLKATA [ APPLICANT ] [ RESPONDENT ] APPLICANT BY : SHRI S.M SURANA, ADVOC ATE, LD.AR RESPONDENT BY : MD. GHYASUDDIN , JCIT, LD.DR DATE OF HEARING : 12-05-2017 DATE OF PRONOUNCEMENT : 24 -05-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESSE E AGAINST THE IMPUGNED ORDER OF THE TRIBUNAL PASSED IN ITA NO. 73 2/KOL/2013 DATED 21-07-2016 FOR THE ASSESSMENT YEAR 2009-10. 2. BY THIS MISC. APPLICATION U/S. 254(2) OF THE ACT THE APPLICANT ASSESSEE SOUGHT TO RECALL THE ORDER DATED 21-07-201 6 OF THE TRIBUNAL IN RESPECT OF THE FINDING I.E THE PROCEEDINGS WITH RE FERENCE TO THE MATTER ADJUDICATED BY THE SETTLEMENT COMMISSION AND ANY MA TTER ARISING OUT OF THE ORDER OF THE SETTLEMENT COMMISSION CANNOT BE SU BJECT MATTER OF CHALLENGE BEFORE THE AUTHORITIES UNDER THE ACT. 3. THE FACTS RELATING TO THE ISSUE ARE THAT THE ASS ESSEE FILED A PETITION FOR SETTLEMENT BEFORE THE SETTLEMENT COMMISSION AND PURSUANCE OF WHICH THE SETTLEMENT COMMISSION PASSED ITS ORDER U/S. 245 D(4) ON 9.5.2012 DIRECTING THE AO TO COMPUTE THE TAX AND INTEREST AS PER LAW. THE ITO WHILE GIVING EFFECT TO THE SAID ORDER OF THE SETTLEMENT C OMMISSION PASSED HIS ORDER U/S. 245D(4)/143 ON 18.06.2012 AND RAISED A D EMAND OF M.A NO. 124/KOL/16-A-JM M/S.SRI BHANWAR LAL BAID 2 RS.75,23,721/- ON THE ASSESSEE. THE ASSESSEE FILED A PETITION U/SEC. 154 OF THE ACT SEEKING TO RECTIFY THE ALLEGED MISTAKE I N THE SAID ORDER IN COMPUTING THE INTER ALIA THE INTEREST U/SEC. 234A AND 234B OF THE ACT AND SOUGHT CREDIT OF RS.1,80,00,000/- PAID ON VARIOUS D ATES DURING THE MONTH OF SEPTEMBER 2009. THE AO FOUND THAT THE ASSESSEE D ID NOT FILE HIS RETURN OF INCOME AS PER DUE DATE I.E IN SEPTEMBER 2009, BU T FILED IN MARCH 2010 AND REJECTED THE PLEA OF PAYMENT OF RS.1,80,00,000/ - AS CREDIT. ON THE OTHER HAND, THE AO FOUND THAT INTEREST CHARGED U/SE CS 234A & 234B OF THE ACT WAS ON THE LOWER SIDE. ACCORDINGLY, HE ENHA NCED THE SAID INTEREST. 4. AGGRIEVED BY THE ORDER OF THE AO PASSED U/SEC 15 4 OF THE ACT, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT-A. THE CIT- A DISMISSED THE SAID APPEAL BY HOLDING THAT THERE IS NO APPEAL LIES AGAI NST THE ORDER OF AO PASS U/SEC. 154 OF THE ACT GIVING EFFECT TO THE ORDER OF THE SETTLEMENT COMMISSION. THE TRIBUNAL VIDE ITS ORDER DT. 21-07-2 016 UPHELD THE SAID ORDER OF THE CIT-A BY OBSERVING THAT THE ASSESSEE W AS FREE TO TAKE RECOURSE TO OTHER REMEDIES OPEN TO HIM IN LAW BEFOR E THE APPROPRIATE FORUM AGAINST AN ORDER PASSED BY THE AO GIVING EFFE CT TO THE ORDER OF THE SETTLEMENT COMMISSION BY FOLLOWING DECISION OF HON BLE HIGH COURT OF CALCUTTA IN THE CASE OF UNION OF INDIA VS INCOME TA X SETTLEMENT COMMISSION, ADDITIONAL BENCH & ANR. 5. NOW, IN THIS MISCELLANEOUS APPLICATION THE LD.AR OF THE ASSESSEE SUBMITS THAT THERE IS A MISTAKE APPARENT ON RECORD IN FINDING BY THE TRIBUNAL THAT NO APPEAL LIES TO THE AUTHORITIES UND ER THE ACT AGAINST THE ORDER PASSED BY THE AO U/SEC 154 GIVING EFFECT TO T HE ORDER OF THE SETTLEMENT COMMISSION, ADDITIONAL BENCH AND ANR. 6. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THE T RIBUNAL HAS TAKEN A VIEW AND THE MISC. APPLICATION IS FILED SEEKING CHA NGE OF THE VIEW OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE U/S. 254(2) OF T HE ACT. M.A NO. 124/KOL/16-A-JM M/S.SRI BHANWAR LAL BAID 3 7. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD.AR HAS CONTENDED THAT THIS TRIBUNAL DID NOT TAKE INTO CONSIDERATION THE RATIO LAID DOWN BY THE HIGH COURT OF CALCUTTA IN THE CASE SUPRA IN SUPPORT OF HIS CONTENTIONS AND RELIED AGAIN ON THE ORDER OF THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE SUPRA AND ARGUED THAT HONBLE HIGH COURT OF CALCUTTA HELD THAT THE SETTLEMENT COM MISSION CANNOT REOPEN ITS CONCLUDED PROCEEDINGS BY INVOKING THE PR OVISION OF SEC. 154 OF THE ACT, EXCEPT TO THE EXPECTATION PROVIDED IN SECT ION 245D(6) OR (6B) OF THE ACT. THE LD.AR HAS ARGUED THAT IN THE PRESENT CASE THE AO PASSED AN ORDER U/SEC 154 OF THE ACT ENHANCING THE CHARGEABIL ITY OF INTEREST U/SEC 234A & 234B OF THE ACT AND THE RATIO LAID DOWN BY T HE HONBLE HIGH COURT IS APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE IMPUGNED ORDER THAT THIS TRIBUNAL BY RELYING AND IN PURSUANCE OF THE DECISION OF THE HONBLE HIGH COURT OF CALCUTTA IN T HE CASE SUPRA BY HOLDING THAT THE SETTLEMENT COMMISSION CANNOT REOPEN THE CA SE BY INVOKING THE PROVISION OF SECTION 145 OF THE ACT, HOWEVER, AFFOR DED LIBERTY TO ASSESSEE TO TAKE RECOURSE TO OTHER REMEDIES OPEN TO HIM IN L AW BEFORE THE APPROPRIATE FORUM AGAINST AN ORDER PASSED BY THE AO . 8. WE FURTHER FIND FROM THE IMPUGNED ORDER THAT THE ASSESSEE COULD NOT SHOW HOW THE ORDER PASSED BY THE AO U/S. 154 OF THE ACT IS APPEALABLE BEFORE THE CIT-A IN TERMS OF PROVISION O F SECTION 246A OF THE ACT AND ACCORDINGLY UPHELD THE ORDER PASSED BY THE CIT-A AS JUSTIFIED FOR THE INDEPENDENT REASONS IN PARA NO-11.1 OF IMPUGNED ORDER, BY FOLLOWING RATIO LAID DOWN BY THE HONBLE HIGH COURT OF CALCUT TA. A WELL DISCUSSED AND WELL CONSIDERED VIEW THUS HAS BEEN TAKEN BY THE TRI BUNAL THAT THE APPEAL AGAINST ORDER U/SEC 154 OF THE ACT IS NOT MAINTAINA BLE IN TERMS OF PROVISIONS OF SECTION 246A(1) OF THE ACT AND THE SA ME CANNOT BE CHANGED AND REVIEWED BY WAY OF RECTIFICATION U/SEC 254(2) O F THE ACT. THEREFORE, THE MISC. APPLICATION FILED BY THE ASSESSEE FAILS A ND IS, ACCORDINGLY DISMISSED. M.A NO. 124/KOL/16-A-JM M/S.SRI BHANWAR LAL BAID 4 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24-05-2017. SD/- SD/- P.M.JAGTAP S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 24-05-2017 COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT : M/S. SRI BHANWAR LAL BAID, FLAT NO. 7A AND 7B, 22/1 BALLYGUNGE CIRCULAR ROAD, KOLKATA-19. 2 RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-XXV, KOLKATA 18 RABINDRA SARANI, POD DAR COURT, KOLKATA-1. 3 . CIT, 4 . CIT(A), 5 . DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY] BY ORDER, ASSTT REGISTRAR.