ACIT, Cir-53, Kolkata, Kolkata V. Sri Sundar Shaw, South 24 Parganas

MA 143/KOL/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5236 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 04-10-2016
• Court: TRIBUNAL
• Department Lawyers: SALLONG YADEN A DDL CIT LD
• Keywords: Difference of opinion

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. 143/KO L/2016 [IN I.T A NO. 981/KOL/2012 A.Y 2008-09] A.C.I.T., CIR-53, KOLKATA VS. SRI SUNDAR SHAW (L/H LAL BEHARI SHAW) PAN: AKLPS 7769M [ APPLICANT ] [ RESPONDENT ] APPLICANT BY : SHRI SALLONG YADEN, AD DL. CIT, LD.DR RESPONDENT BY : MRS. R. CHAND RA, ACA MR. D.CHAKRABORTY, FCA, LD.ARS DATE OF HEARING : 16-12-2016 DATE OF PRONOUNCEMENT : 25 -01-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM THIS MISCELLANEOUS PETITION IS FILED BY THE REVENU E AGAINST THE IMPUGNED ORDER OF THE TRIBUNAL PASSED IN ITA NO. 98 1/KOL/2012 DATED 05-08-2016 FOR THE ASSESSMENT YEAR 2008-09. 2. BY THIS MISC. APPLICATION U/S. 254(2) OF THE ACT THE APPLICANT REVENUE URGED TO RECALL THE SAID ORDER DATED 05-0 8-2016 OF THE TRIBUNAL AS THE SAID ORDER SUFFERS FROM CONFUSION ON DIFFERE NT RESULT PRONOUNCED BY THE TRIBUNAL ON 15-05-2015 AND 05-08-2016 RESPECTI VELY ALMOST ON SAME ISSUE. 3. THE LD. DR APPEARING ON BEHALF OF THE REVENUE SU BMITS THAT THE ASSESSEE AND REVENUE BOTH FILED THEIR RESPECTIVE AP PEALS SEPARATELY AGAINST THE SAME ORDER OF THE CIT-A, KOLKATA DATED 12-03-2012 FOR THE A.Y 2008-09, WHEREIN THE CIT-A PARTLY CONFIRMED THE ADDITION MADE U/S. 40(A)(IA) OF THE ACT BY THE AO ON ACCOUNT OF TRUCK HIRE CHARGES. THE ASSESSEE QUESTIONED THE ORDER OF CIT-A IN RESPECT O F CONFIRMING THE M.A NO. 143/KOL/16-A-JM SRI SUNDAR SHAW 2 ADDITION IN PART WHERE THE PAYMENT WAS MADE EXCEEDI NG RS.20,000/- FOR A SINGLE TRIP TOWARDS TRANSPORTATION CHARGES. WHEREA S THE REVENUE HAS ALSO FILED APPEAL QUESTIONING THE ORDER OF THE CIT-A IN DIRECTING THE AO TO RESTRICT THE DISALLOWANCE, WHERE THE PAYMENT OF RS. 20,000/- WAS MADE FOR A SINGLE TRIP TOWARDS TRANSPORTATION CHARGES. HE AL SO SUBMITS THAT THE APPEAL FILED BY THE REVENUE WAS ALLOWED FOR STATIST ICAL PURPOSE ON 15-05- 2015 IN ITA NO. 992/KOL/2012 FOR THE A.Y 2008-09 AN D THAT OF THE ASSESSEE WAS ALLOWED ON 05-08-2016 IN ITA NO. 981/K OL/2012 FOR THE A.Y 2008-09 AND ARGUED THAT BOTH THE ORDERS OF THE TRIB UNAL DATED 15-05- 2015 & 05-08-2016 SUFFERED FROM DIFFERENCE OF OPINI ON IN PRONOUNCING THE RESULT WHERE THE ASSESSEE AND THE ISSUE INVOLVED TH EREIN IS SAME. COPY OF TRIBUNAL ORDERS ARE PLACED ON RECORD. THUS, SHE URGED TO SET ASIDE THE SAID EX- PARTE ORDER DATED 05-08-2016 PASSED IN ITA NO. 981/KOL/2012 FOR THE AY 2008-09 AND TO ALLOW THE MISC. APPLICATI ON FILED BY THE REVENUE ON SUCH ISSUE BY GIVING AN OPPORTUNITY TO REPRESENT ITS CASE AFRESH FOR TAKING A DECISION IN THIS REGARD ON MERIT. 4. IN REPLY, THE LD.AR SUBMITS THAT THE VIEW TAKEN BY THE TRIBUNAL IN FAVOUR OF ASSESSEE HOLDS GOOD BY RELYING ON VARIOUS CASE LAWS AND IN VIEW OF DECISION OF THE HONBLE SUPREME COURT IN THE CAS E OF CIT VS. VEGETABLE PRODUCTS REPORTED IN ( 1973) 88 ITR 192(SC) AND ARG UED THAT WHEN TWO VIEWS ARE AVAILABLE IN DIFFERENT ORDERS DATED 15/0 5/2015 & 05/08/2016 OF THE TRIBUNAL IN THE BOTH THE APPEALS BY THE ASSES SEE AND REVENUE IN THEIR RESPECTIVE APPEALS, IN SUCH CIRCUMSTANCES, THE RULE OF JUDICIAL PRECEDENCE DEMANDS THE VIEW FAVOURABLE TO ASSESSEE MUST BE ADO PTED. IN SUPPORT OF THIS CONTENTION, SHE ALSO RELIED ON THE ORDER OF CO -ORDINATE BENCH OF ITAT CHENNAI IN THE CASE OF SRI NARAYANA MOORTHY TRAVELS VS. ITO AND REFERRED TO PARA 5 OF SAID ORDER. SHE FURTHER ARGUED THAT TH IS TRIBUNAL HAS TAKEN A VIEW IN FAVOUR OF ASSESSEE IN ACCORDANCE WITH LAW L AID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF SUPRA AND PRAY ED TO DISMISS THE MISC. APPLICATION FILED BY THE REVENUE. M.A NO. 143/KOL/16-A-JM SRI SUNDAR SHAW 3 5. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE. WE FIND THAT BOTH THE REVENUE AND ASSESSEE HAVE FILED THEIR RESPECTIVE APPEALS IN THIS TRIBUNAL AGAINST COMMON ORDER OF THE CIT-A DA TED 12-03-2012 SEPARATELY, WHEREIN THE ISSUE WAS IDENTICAL AND SI MILAR. WE FIND THAT AT THE TIME OF HEARING OF THE SAID APPEAL NEITHER OF T HE PARTIES BROUGHT TO OUR NOTICE THAT APPEAL FILED BY THE REVENUE WAS DISPOSE D ON 15-05-2015. WE ALSO FIND THAT DIFFERENCE OF OPINION IN BOTH THE AP PEALS I.E ASSESSEES APPEAL WAS ALLOWED VIDE ORDER DATED 05-08-2016 AND THAT OF THE REVENUE WAS ALLOWED FOR STATISTICAL PURPOSE VIDE ORDER DATE D 15-05-2015 AND THE SAID TWO DECISIONS HAD BEEN CREATED A CONFUSION IN GIVING EFFECT TO ORDERS OF TRIBUNAL. IN SUCH CIRCUMSTANCES, WE RECALL THE O RDER DATED 05-08-2016 PASSED IN ITA NO. 981/KOL/2012 FOR THE AY 2008-09 ( BY THE ASSESSEE). THE REGISTRY IS DIRECTED TO FIX THE CASE IN DUE COU RSE FOR HEARING BY INFORMING BOTH THE CONCERNED PARTIES. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-01-2017 SD/- SD/- P.M.JAGTAP S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 25-01-2017 M.A NO. 143/KOL/16-A-JM SRI SUNDAR SHAW 4 COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT : THE ACIT, CIR-53, 2 GARIAHAT ROAD (S), KOLKATA-68 . 2 RESPONDENT : SRI SUNDAR SHAW L/H LATE LAL BEHARI S HAW, 113/2 M.G ROAD, BUDGE BUDGE, 24 PARGAS (S), 700 013 7. 3 . CIT, 4 . CIT(A), 5 . DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY] BY ORDER, ASSTT REGISTRAR.