I.T.O Wd - 36(2),kolkata, Kolkata V. Shankar Prasad Shaw, Kolkata

MA 127/KOL/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5698 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 18-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Tax effect
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI WASE EM AHMED, AM] M.A.NO.127/KOL/2017 (A/O I.T.A NO.567/KOL/2013) ASSESSMENT YEAR : 2008-0 9 I.T.O., WARD-36(2) -VS.- SHANKAR PRASAD SHAW KOLKATA KOLKATA [PAN : ALYPS 1471 Q] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SALLONG YADEN, ADDL. CIT FOR THE RESPONDENT : NONE DATE OF HEARING : 19.01.2018. DATE OF PRONOUNCEMENT : 19.01.2018. ORDER PER N.V.VASUDEVAN, JM THIS IS A MISCELLANEOUS APPLICATION FILED BY THE R EVENUE U/S 254 (2) OF THE INCOME TAX ACT, 1961 (ACT), PRAYING FOR RECALLING THE ORDER DATED 01.02.2016 PASSED BY THIS TRIBUNAL. 2. THE TRIBUNAL BY ITS ORDER DATED 01.02.2016 AFT ER NOTICING THAT THE TAX EFFECT INVOLVED IN THE APPEAL WAS LESS THAN RS.10 LAKHS AN D AS PER THE CBDT CIRCULAR NO.21/2015 DATED 10.12.2015 THE APPEALS BEFORE THE TRIBUNAL HAVING TAX EFFECT LESS THAN RS.10 LAKHS SHOULD NOT BE FILED, DISMISSED THE APPE AL OF THE REVENUE AS THE APPEAL WAS FILED CONTRARY TO THE CIRCULAR OF CBDT AND HENCE NO T MAINTAINABLE. 3. IN THIS MISCELLANEOUS APPLICATION IT HAS BEEN PO INTED OUT BY THE REVENUE THAT THE TAX EFFECT IN THE AFORESAID APPEAL WAS MORE THAN RS .10 LAKHS AS PER THE FOLLOWING DETAILS :- 2 M.A.NO.127/KOL/2017 (A/O ITA NO.567/KOL/2013) SHANKAR PRASAD SHAW A.YR..2008-09 2 ON GOING THROUGH THE RECORDS IT IS FOUND THAT IN T HIS CASE THE TOTAL TAX EFFECT IS RS.10,67,912 (I.E. TAX RS.9,42,558 + SC RS.94,250/- + EC & SHEC RS.31,104/0) 4. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR. WE HAVE PERUSED THE ORDER OF ASSESSMENT AND WE FIND THAT THE FOLLOWING ADDITIONS WERE MADE IN THE ORDER OF ASSESSMENT AND TAX WAS DETERMINED AS FOLLOWS : TOTAL INCOME OF ASSESSEE AS PER RETURN OF INCOME ADD : RS.76,864/- DISALLOWANCE U/S 40(A)(IA) : RS.25,67,927/- UNEXPLAINED INVESTMENT : RS.4,46,022/- LOW DRAWINGS : RS. 60,000/- ACCRUED INTEREST ON FD : RS. 1,60,868/- RS.3 2,34,817/- ASSESSED INCOME RS.33,11,861/- R/O RS.33,11,860/- (RUPEES THIRTY THREE LAKH ELEVEN THOUSAND EIGHT HUN DRED AND SIXTY ONLY) CALCULATION OF TAX ASSESSED TOTAL INCOME OF : RS.33,11,860/- TAX THEREON OF : RS. 9,42,558/- ADD : SURCHARGE @ 10% : RS. 94,250/- RS.10,36,808/- ADD : EDUCATION CESS/SHREC @ 3% : RS. 31,104/- RS.10,67,912/- LESS: TDS PAID : RS. 1,33,534/- : RS. 9,34,378/- ADD : INTEREST U/S 234B [FROM 01.04.2008 TO 12/10 = 33 MONTHS @ 1% : RS. 3,08,345/- RS.12,42,723/- ADD: REFUND ALREADY ISSUED THROUGH RBS ON 20/02/201 0 RS. 1,47,552/- RS.13,90,275/- ADD : INTEREST U/S 234D RS. 7,378/- NET PAYABLE RS.13,97,653/- [THIRTEEN LAKS NINETY SEVEN THOUSAND SIX HUNDRED AN D FIFTY THREE ONLY) 3 M.A.NO.127/KOL/2017 (A/O ITA NO.567/KOL/2013) SHANKAR PRASAD SHAW A.YR..2008-09 3 5. IN THE APPEAL FILED BY THE REVENUE BEFORE THE TR IBUNAL THE CHALLENGE WAS ONLY WITH REGARD TO THE DISALLOWANCE OF RS.25,67,927/- MADE U /S 40(A)(IA) OF THE ACT AND ADDITION OF UNEXPLAINED INVESTMENT OF RS.4,46,022/-. IN THE MISCELLANEOUS APPLICATION THE TAX EFFECT HAS BEEN CALCULATED BY THE AO ON THE ENTIRE ADDITION OF RS.32,34,817/- PLUS THE INCOME DISCLOSED IN THE RETURN OF INCOME. THE CORRE CT TAX EFFECT CALCULATION SHOULD BE MADE ONLY DISALLOWANCE U/S 40(A)(IA) OF THE ACT AN D UNEXPLAINED INVESTMENT VIZ. RS.28,67,927/- PLUS RS.4,46.,022/-. IT WAS AGREED B Y THE DR AT THE TIME OF HEARING THAT IF THE TAX EFFECT IS CALCULATED ON THE DISPUTED ADDITI ONS IN THE APPEAL THEN THE TAX EFFECT WOULD BE LESS THAN RS.10 LAKHS. IN VIEW OF THE ABOV E WE ARE OF THE VIEW THAT THE PRESENT MISCELLANEOUS APPLICATION IS MISCONCEIVED AND HAS B EEN FILED ON WRONG FACTS. WE THEREFORE DISMISS THE MISCELLANEOUS APPLICATION OF THE REVENUE. 6. IN THE RESULT THE MISCELLANEOUS APPLICATION OF T HE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 19.01.2018. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 19.01.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.SHANKAR PRASAD SHAW, 11A, POLLOCK STREET, 3 RD FLOOR, KOLKATA-700001. 2. I.T.O., WARD-36(2), KOLKATA. 3. C.I.T.(A)-XX, KOLKATA 4. C.I.T- XII, KOLK ATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PR IVATE SECRETARY HEAD OF OFFICE/D.D.O., I.T.A.T., KOLKATA BENCHE S 4 M.A.NO.127/KOL/2017 (A/O ITA NO.567/KOL/2013) SHANKAR PRASAD SHAW A.YR..2008-09 4