ITO, WARD-1(4), KOLKATA, Kolkata V. M/s Marson's Power & Infrastructure Development Ltd., Kolkata

MA 173/KOL/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 6028 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 19-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: K M ROY
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM & SHRI S.S. VISWANETHRA RAVI, JM] M.A. NO. 173/KOL/2017 (ARISING OUT OF ITA NO. 912/KOL/2015) ASSESSMENT YEAR: 2005-06 I.T.O., WARD 1(4) KOLKATA........................................................APPELLANT AAYAKAR BHAWAN, 7 TH FLOOR, P-7, CHOWRINGHEE SQUARE, HOOGHLY 700 069 M/S.MARSONS POWER & INFRASTRUCTURE DEVELOPMENT LTD RESPONDENT 4, CHANDNI CHOWK STREET, KOLKATA 700 072 [PAN: AABCM 7726 M] APPEARANCES BY: SHRI S. DASGUPTA, ADDL. CIT (DR) APPEARING ON BEHALF OF THE REVENUE. SHRI K.M. ROY, FCA APPEARING ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : DECEMBER 15, 2017 DATE OF PRONOUNCING THE ORDER : DECEMBER 15, 2017 O R D E R PER P.M. JAGTAP, ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS APPLICATION, THE REVENUE IS SEEKING RECALL OF THE ORDER OF THE TRIBUNAL DATED JULY 27, 2017 PASSED BY THE TRIBUNAL IN ITA NO. 912/K/2015 TREATING THE APPEAL OF THE REVENUE AS WITHDRAWN/NOT PRESSED AND DISMISSING THE SAME FOR LOW TAX EFFECT. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE APPEAL OF THE REVENUE BEING ITA NO. 912/K/2015 WAS DISMISSED BY THE TRIBUNAL VIDE ITS ORDER DATED JULY 27, 2017 BY TREATING THE SAME AS WITHDRAWN/NOT PRESSED KEEPING IN VIEW THAT THE TAX EFFECT INVOLVED IN THE SAID APPEAL WAS LESS THAN THE 2 M.A. NO.173/KOL/2017 (A.Y. 2005-06) MARSONS POWER & INFRASTRUCTURE DEVELOPMENT LTD. MONEYTARY LIMIT OF RS. 10 LACS FIXED BY THE CBDT VIDE CIRCULAR NO. 21 OF 2015DATED 10 TH DECEMBER 2015 FOR FILING THE APPEAL FOR REVENUE BEFORE THE TRIBUNAL. IN THE PRESENT MISC. APPLICATION, THE CONTENTION RAISED BY THE REVENUE IS THAT EVEN THOUGH THE NET TAX EFFECT INVOLVED IN THE APPEAL WAS LESS THAN RS. 10 LACS, THE TOTAL TAX EFFECT INCLUDING SURCHARGE AND EDUCATION CESS WAS MORE THAN RS. 10 LACS AND THERE IS THUS A MISTAKE IN THE ORDER OF THE TRIBUNAL IN DISMISSING THE SAME ON ACCOUNT OF LOW TAX EFFECT BY RELYING ON THE CBDT CIRCULAR NO. 21 OF 2015 (SUPRA). HOWEVER AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE, THIS ASPECT HAS ALREADY BEEN CONSIDERED AND DECIDED BY DELHI BENCH OF ITAT IN THE CASE OF ACIT VS DALLAS FINANCE LTD. (ITA NO. 3946/DEL/2010 DATED 07.04.2017) WHEREIN IT WAS HELD THAT SURCHARGE AND EDUCATION CESS SHALL NOT BE INCLUDED IN THE WORD TAX FOR THE PURPOSE OF EXAMINING THE TAX EFFECT AS ENVISAGED IN CIRCULAR NO. 21 OF 2015 DATED 10 TH DECEMBER, 2015 ISSUED BY THE CBDT. WE, THEREFORE, FIND THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL DATED JULY 27, 2017 (SUPRA) AS ALLEGED BY THE REVENUE IN THE PRESENT MISC. APPLICATION CALLING FOR ANY RECTIFICATION. WE ACCORDINGLY DISMISS THIS MISC. APPLICATION FILED BY THE REVENUE. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH DECEMBER, 2017. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15/12/2017 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 3 M.A. NO.173/KOL/2017 (A.Y. 2005-06) MARSONS POWER & INFRASTRUCTURE DEVELOPMENT LTD. 1. M/S. MARSONS POWER & INFRASTRUCTURE DEVELOPMENT LTD., 4, CHANDNI CHOWK STREET, KOLKATA 72. 2. ITO WARD 1(4), AAYAKAR BHAWAN, 7 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA 69. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA