West Bengal Transport Corporation Ltd.,[Formerly The Calcutta Tramways Company (1978) Ltd.], Kolkata V. Principal CIT - 2, Kolkata , Kolkata

MA 159/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7321 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 28-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice
• Section: 43B; 263; 63

Judgement Text

1 MA NO.159/KOL/2018 WEST BENGAL TRANSPORT CORPORATION LTD. AYS- 2012-13 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VA RKEY, JM] M.A. NO.159/KOL/2018 IN I.T.A. NO. 1261/KOL/2017 ASSESSMENT YEARS: 2012-13 WEST BENGAL TRANSPORT CORPORATION LTD. (FORMERLY THE CALCUTTA TRAMWAYS CO. (1978) LTD.) (PAN : AABCT7674D) VS. PRINCIPAL COMMISSIONER OF INCOME-TAX, CIRCLE-2, KOLKATA. APPLICANT RESPONDENT DATE OF HEARING 01.02.2019 DATE OF PRONOUNCEMENT 26.04.2019 FOR THE APPLICANT SHRI A. BISWAS, FCA FOR THE RESPONDENT SHRI SANKAR HALDER, JCIT, SR. DR ORDER PER SHRI A. T. VARKEY, JM BY THIS MISC. APPLICATION THE ASSESSEE HAS SOUGHT T O POINT OUT THAT MISTAKES APPARENT FROM RECORD WITHIN THE MEANING OF SEC. 254(2) OF TH E INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 18.07.2018. 2. THE LD. AR OF THE ASSESSEE SUBMITTED THAT IN PAR A 3 OF THE IMPUGNED APPELLATE ORDER, THE TERM CONTINGENT LIABILITY WAS ERRONEOUSLY STATED INSTEAD OF UNASCERTAINED LIABILITY . HE FURTHER SUBMITTED THAT THE LD. PR. CIT HAS D ISALLOWED THE INTEREST PROVISION ONLY ON THE SOLE GROUND THAT IT WAS IN THE NATURE O F UNASCERTAINED LIABILITY. HE POINTED OUT THAT ALTHOUGH THIS TRIBUNAL HAD DECIDED THAT THE PR OVISION TO BE ASCERTAINED ONE BUT DENIED THE CLAIM OF DEDUCTION FOR INTEREST ON ALTOGETHER A NEW GROUND THAT UNPAID INTEREST IS NOT 2 MA NO.159/KOL/2018 WEST BENGAL TRANSPORT CORPORATION LTD. AYS- 2012-13 ALLOWABLE IN TERMS OF THE PROVISIONS OF SECTION 43B OF THE ACT. THE LD. AR CONTENDED THAT THIS NEW GROUND/REASONS ON WHICH THE MATTERS WERE D ECIDED AGAINST THE ASSESSEE NEITHER EMANATED FROM THE PR. CITS ORDER NOR WAS THE ASSE SSEE GIVEN ANY OPPORTUNITY BY THE BENCH TO REBUT THE SAME. HE URGED THAT THE QUESTIO N WHETHER SECTION 43B OF THE ACT CAN BE APPLIED IN THE INSTANT CASE WAS NEVER RAISED OR ARG UED BY ANY OF THE PARTIES AT THE TIME OF HEARING. THE LD. AR , THEREFORE, CONTENDED THAT TH E IMPUGNED APPELLATE ORDER PASSED DISMISSING THE APPEAL ON THE PREMISES THAT THE INTE REST PROVISION WAS NOT ALLOWABLE IN TERMS OF SEC. 43B OF THE ACT WAS AGAINST THE PRINCI PLES OF NATURAL JUSTICE AND, THEREFORE, PRAYED THAT THE ORDER BE RECALLED AND FRESH ORDER M AY BE PASSED AFTER HEARING BOTH THE SIDES. 3. PER CONTRA THE LD. DR SUBMITTED THAT WHAT THE AS SESSEE SEEKS IN THIS MISC. APPLICATION IS REVIEW OF THE TRIBUNALS ORDER WHICH POWERS TRIBUNAL DOES NOT ENJOY. HE, THEREFORE, PLEADED THAT THE MISC. APPLICATION OF TH E ASSESSEE BE DISMISSED AS NOT MAINTAINABLE. 4. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE ISSUE AS TO WHETHER THE ASSESSEES CL AIM FOR DEDUCTION FOR INTEREST PAYABLE TO THE GOVERNMENT CAN BE SUBJECTED TO MISCHIEF OF SEC. 43B OF THE ACT WAS NEVER RAISED BY THE LD. PR. CIT IN THE PROCEEDING U/S. 263 OF THE ACT. THE ONLY ISSUE ON WHICH THE LD. PR. CIT CONSIDERED THE AOS ORDER TO BE ERRONEOUS WAS THAT SUCH INTEREST WAS ON AN UNASCERTAINED LIABILITY, AND CONSEQUENTLY THE AO ERRED IN ALLOWI NG THE INTEREST CLAIM OF THE ASSESSEE. ON PERUSAL OF OUR LOG BOOK IN RESPECT OF HEARING OF TH IS CASE, WE NOTE THAT THE FINDING IN THE IMPUGNED ORDER OF OURS THAT THE INTEREST PROVISION CANNOT BE ALLOWED AS A DEDUCTION IN TERMS OF SEC. 43B OF THE ACT WAS PASSED WITHOUT AFFORDING OPPORTUNITY OF HEARING TO BOTH THE PARTIES. NOT ONLY THAT WE NOTE THAT THE PR. CIT HA D DISALLOWED THE INTEREST PROVISION ONLY ON THE SOLE REASON THAT IT WAS IN THE NATURE OF UNASC ERTAINED LIABILITY AND HAS NOT INVOKED SEC. 43B OF THE ACT. IN SUCH A SCENARIO, WE FIND MERIT IN THE CONTENTION RAISED BY THE ASSESSEE THAT THIS TRIBUNAL CANNOT JUSTIFY THE ORDER PASSED BY THE LD. PR. CIT U/S. 263 OF THE ACT ON THE GROUND OTHER THAN THOSE MENTIONED BY THE LD. PR. CI T IN HIS ORDER. THEREFORE, TO THAT EXTENT 3 MA NO.159/KOL/2018 WEST BENGAL TRANSPORT CORPORATION LTD. AYS- 2012-13 WE AGREE THAT THERE IS A MISTAKE APPARENT ON THE RE CORD AND, THEREFORE, WE RECALL THE IMPUGNED ORDER OF THE TRIBUNAL AND IS INCLINED TO R ECTIFY THE MISTAKE. IN THE LIGHT OF THE AFORESAID DISCUSSION, THE ORDER IMPUGNED BEFORE US WHEREIN WE HAD JUSTIFIED THE ORDER PASSED BY THE LD. PR. CIT U/S. 263 ON THE GROUND OF SEC. 43B NEED TO BE DELETED AND WE DO SO ACCORDINGLY. 5. FOR COMPLETENESS OF THE ORDER PASSED BY US DATED 18.07.2018 AND IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE NOTE THAT THE LD. PR. CIT HAD DISALLOWED THE INTEREST PROVISION ONLY ON THE SOLE REASON THAT IT WAS IN THE NATURE OF AN UNASCERTAINED LIABILITY. HOWEVER, WE NOTE THAT IN PARA 3 OF OUR IMPUGNED ORDER DATED 18.07.20 18 THE TERM CONTINGENT LIABILITY WAS MISTAKENLY STATED INSTEAD OF UNASCERTAINED LIABILI TY. THEREFORE, OUR ORDER DATED 18.07.2018 PARA 3 WHEREIN WE STATED IN THE LIGHT OF THE AFORESAID GO, THE INTEREST ON T HE BORROWED FUNDS CANNOT BE TERMED AS CONTINGENT LIABILITY SHOULD BE READ AS IN THE LIGHT OF AFORESAID GO, THE INTEREST ON THE BORROWED FUNDS CANNOT BE TE RMED AS AN UNASCERTAINED LIABILITY . THEREFORE, THIS FINDING OF THIS TRIBUNAL HAS TO BE RECTIFIED ACCORDINGLY. 6. ONCE WE HAVE RECTIFIED THE MISTAKE AS STATED IN PARA 5 ABOVE, THE SOLE REASON FOR THE LD. PR. CIT TO INVOKE HIS JURISDICTION U/S. 263 DIS APPEARS. IN OTHER WORDS, THE LD. PR. CIT HAS INVOKED HIS JURISDICTION U/S. 263 OF THE ACT ON THE SOLE REASON THAT AOS ACTION WAS ERRONEOUS SINCE THE INTEREST PROVISION CLAIMED BY T HE ASSESSEE COULD NOT BE ALLOWED SINCE IT WAS IN THE NATURE OF UNASCERTAINED LIABILITY AND SINCE WE HAVE HELD THAT THE INTEREST PROVISION OF THE ASSESSEE IS NOT IN THE NATURE OF U NASCERTAINED LIABILITY, THE BASIS FOR INVOKING JURISDICTION BY THE LD. PR. CIT FALLS AND, THEREFOR E, THE VERY INVOCATION OF JURISDICTION U/S. 263 OF THE ACT BY THE LD. PR. CIT FALLS AND, THEREF ORE, WE ARE INCLINED TO ALLOW THE MISC. APPLICATION OF THE ASSESSEE AS AFORESAID. IN THE RE SULT, ITA NO. 1261/KOL/2017 FOR AY 2012- 13 PASSED BY US DATED 18.07.2018 HAS TO BE ALLOWED AND, THEREFORE, WE QUASH THE VERY INVOCATION OF JURISDICTION BY THE LD. PR. CIT U/S 2 63 OF THE ACT. SO, THE MISC. APPLICATION OF THE ASSESSEE IS ALLOWED AS PER THE TERMS STATED ABOVE AND ITA NO. 1261/KOL/2017 OF THE ASSESSEE IS ALLOWED. 4 MA NO.159/KOL/2018 WEST BENGAL TRANSPORT CORPORATION LTD. AYS- 2012-13 7. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS ALLOWED IN TERMS AS STATED ABOVE AND THUS THE APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 26TH APRIL , 2019. SD/- SD/- (J. S. REDDY) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIALMEMBER DATED : 26TH APRIL, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPLICANT WEST BENGAL TRANSPORT CORPORATION LT D. (FORMERLY THE CALCUTTA TRAMWAYS CO. (1978) LTD.), 12, R. N. MUKHE RJEE ROAD, KOLKATA-700 001. 2 RESPONDENT PR.CIT, CIRCLE-2, KOLKATA. 3. 4. DCIT-4(2), KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR