ACIT, Circle - 2(2), , Kolkata V. M/s. TCG Facilities Management Services Pvt. Ltd., Kolkata

MA 195/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8838 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 17-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 195

Judgement Text

1 MA NO. 195/KOL/2019 TCG FACILITIES MANAGEMERNT SER VICES P. LTD., AY- 2014-15 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] MA NO. 195 /KOL/2019 IN I.T.A. NO. 2482/KOL/2018 ASSESSMENT YEAR: 2014-15 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2(2), KOLKATA. VS. M/S. TCG FACILITIES MANAGEMENT SERVICES PVT. LTD. (PAN: AABCB2810R) APPLICANT RESPONDENT DATE OF HEARING 08.11.2019 DATE OF PRONOUNCEMENT 22.11.2019 FOR THE APPLICANT SMT. RANU BISWAS, ADDL. CIT, SR. DR FOR THE RESPONDENT SHRI A. K. TIBREWAL, FCA ORDER PER SHRI A.T.VARKEY, JM THIS MISC. APPLICATION FILED BY THE REVENUE ALLEGI NG THAT A MISTAKE APPARENT ON RECORD HAD CREPT INTO THE ORDER OF THIS TRIBUNAL IN ITA NO. 2482/KOL/2018, DT. 01/07/2019. 2. AT THE OUTSET, WE NOTE THAT TRIBUNAL VIDE THE IM PUGNED ORDER DATED 01.07.2019 HAS HELD THAT THE DEPARTMENTAL APPEAL FELL IN THE KEN O F CBDT CIRCULAR NO. 3/2018 DATED 11.07.2018 AND SINCE THE DISPUTED ADDITION IN THIS APPEAL BY THE REVENUE IS ONLY TO THE TUNE OF RS.2,30,230/- WHICH IS LESS THAN RS.20,00,000/-. HOWEVER, THE REVENUE BY PREFERRING THIS MISC. APPLICATION HAS STATED THAT SINCE THE ORDER O F LD. CIT(A) FALLS IN THE EXCEPTION GIVEN BY CLAUSE 3(A) IN THE CBDT CIRCULAR NO.3/2018 THE T RIBUNAL OUGHT NOT TO HAVE DISMISSED THE APPEAL ON THE PLEA THAT IT FALLS IN THE KEN OF CBDT CIRCULAR NO. 3/2018. FOR UNDERSTANDING THE GRIEVANCE OF THE REVENUE, WE REPRODUCE CLAUSE 3 (A) OF THE IBID CIRCULAR, WHICH READS AS UNDER: 2 MA NO. 195/KOL/2019 TCG FACILITIES MANAGEMERNT SER VICES P. LTD., AY- 2014-15 (A) WHERE THE CONSTITUTIONAL VALIDITY OF THE PRO VISIONS OF AN ACT OR RULE IS UNDER CHALLENGE, OR.. 3. IT IS WELL SETTLED THAT SINCE THE TRIBUNAL IS A CREATURE OF THE STATUTE (INCOME TAX ACT, 1961), WE DO NOT HAVE THE JURISDICTION TO EXAMINE T HE VIRES OF THE PARENT STATUTE, SO THE MISC. APPLICATION PREFERRED BY THE REVENUE WHEREIN IT CLA IMS THAT THE LD. CIT(A)S ORDER IS ULTRA VIRES THE ACT CANNOT BE ENTERTAINED AND ADJUDICATED BY US. IN SUCH A SCENARIO, THE DEPARTMENT IF ADVISED CAN LOOK FOR REMEDY ELSEWHERE . MOREOVER, WE WOULD LIKE TO NOTE THAT ASSESSEE CAN RAISE ADDITIONAL GROUND BEFORE THE AP PELLATE AUTHORITY AS ALLOWED BY THE HONBLE SUPREME COURT IN GOETZE (INDIA) LTD. VS. CI T 284 ITR 323 (SC) THOUGH NOT RAISED BEFORE THE AO. IN THIS CASE, HON'BLE SUPREME COURT HELD THAT WHERE CLAIM OF DEDUCTION WAS NOT MADE IN THE ROI OR BY FILING A REVISED ROI, THE SAME CANNOT BE MADE BEFORE THE A.O, BUT IT WAS CLARIFIED BY THE HONBLE APEX COURT THAT THERE IS NO BAR IN MAKING A FRESH CLAIM BEFORE THE APPELLATE AUTHORITIES. WITH THE AFORESAI D OBSERVATION, WE DISMISS THE MISC. APPLICATION OF THE REVENUE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 22ND NOVE MBER, 2019. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22ND NOVEMBER, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ACIT, CIRCLE-2(2), KOLKATA 2 RESPONDENT M/S. TCG FACILITIES MANAGEMENT SERVI CES PVT. LTD., 9B, WOOD STREET, KOLKATA-700 016. 3. 4. CIT(A)-1, KOLKATA (SENT THROUGH E-MAIL) CIT- 1, KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR