Jalan Carbons & Chemicals Pvt. Ltd., Kolkata V. ACIT, Cen. Cir.-1(4), Kolkata

MA 15/KOL/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3990 (ITAT-KOLKATA)
• Duration Of Justice: 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 23-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; TDS
• Section: 43B; 139; 37(1); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH KOLKATA Before Shri Sanjay Garg, Judicial Member M.A. No.15/Kol/2022 (Arising out of ITA No.566/Kol/2021) Assessment Year: 2014-15 Jalan Carbons & Chemicals Pvt. Ltd...........................................................Appellant 46C, Chowringhee Road, Flat No.16G, Kolkata-1. [PAN:AAACJ8324R] vs. ACIT, Central Circle-1(4), Kolkata.............................................................Respondent Appearances by: Shri Miraj D Shah, Advocate, appeared on behalf of the appellant. None appeared on behalf of the Respondent. Date of concluding the hearing : June 10, 2022 Date of pronouncing the order : June 10, 2022 ORDER Per Sanjay Garg, Judicial Member: The present miscellaneous application has been filed by the assessee-applicant stating that the assessee had preferred appeal before this Tribunal bearing in ITA No.566/Kol/2021, relevant to assessment year 2014-15, wherein, the assessee had taken the following grounds of appeal: “a. That on the facts and in the circumstances of the case, the La. CIT(A) has erred in law as well as on facts in passing an order u/s 250 by dismissing appeal against disallowance of sum of Rs. 4,14,875/-being contribution of employees share towards ESI, PE, Superannuation Fund or any other fund set up for the welfare of the employee u/s 36(1)(va) read with se. 2(24)(x) of the Income Tax Act, 1961 when the payments were made within the due dates of filing of return u/s 139 of the Income Tax Act, 1961 and hence are allowable. b. For that on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law as well as on facts in passing an order u/s 250 by dismissing appeal against disallowance of a sum of Rs. 18,04, 800/- being interest on delayed payment of Service tax, Excise duty, Entry Tax, Professional Tax and Sales tax and treating them as being paid for violation of statutory provision when the same is in the nature of interest payment and hence allowable u/s 37(1) of the income Tax Act, 1961 C. For that on the facts and in the circumstances of the case, the Ld. CIT(A) has erred on facts as well as in law in passing an order u/s 250 by dismissing appeal against disallowance of a sum of Rs. 1,90,163/- as interest paid for violation of statutory M.A. No.15/Kol/2022 Assessment Year: 2014-15 Jalan Carbons & Chemicals Pvt. Ltd 2 provision laid down in the relevant law whereas the sum is actually Cenvat Credit (Rs 1,84,741 +interest) disallowed during excise audit, debited to the Profit Loss a/c under rates and taxes and paid during the year and hence allowable u/s 43B of the Act. d. For that on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law as well as on facts in passing an order u/s 250 by dismissing appeal against disallowance disallowing a sum of Rs 29,499/- being interest on TDS, when the same is an allowable expense. e. For that on the facts in the circumstances of the case, the Ld. CIT(A) has erred in law in upholding the disallowance made by the Ld AO, wherein the assessee was not given reasonable opportunity of being heard during the course of assessment proceedings. J. For that the appellant craves leave to supplement, cancel or otherwise modify any of the above grounds before or at the time of hearing.” 2. The ld. counsel has further submitted that the Tribunal has decided the aforesaid appeal vide order dated 31.01.2022. He has further invited my attention to the said order dated 31.01.2022 to state that the Tribunal has decided only 1 st Grounds of appeal whereas, the Ground nos.2 to 6 have not been decided by the Tribunal, therefore, an error apparent on record has occurred in the order of the Tribunal dated 31.01.2022. 3. I have perused the order of the Tribunal dated 31.01.2022 and found that the contention of the ld. counsel for the assessee is correct. A mistake apparent on record has occurred in the order of the Tribunal because of non-adjudication of Ground Nos.2 to 6 of assessee’s appeal. In view of this, the impugned order of the Tribunal is recalled to the limited extent for the purpose of deciding the Ground Nos.2 to 6 of the assessee’s appeal. The findings given in respect of Ground No.1 shall remain intact. The Miscellaneous application of the assessee is, therefore, allowed. A copy of this order be placed in the main file also. 4. In the result, the Miscellaneous Application of the assessee is allowed. Kolkata, the 10 th June, 2022. Sd/- [Sanjay Garg] Judicial Member Dated: 10.06.2022. RS M.A. No.15/Kol/2022 Assessment Year: 2014-15 Jalan Carbons & Chemicals Pvt. Ltd 3 Copy of the order forwarded to: 1Jalan Carbons & Chemicals Pvt. Ltd 2. ACIT, Central Circle-1(4), Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches