The D.C.I.T., Cir-7, Kolkata, Kolkata V. M/s Azimganj Estates Private Ltd., Kolkata

MA 2/KOL/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2528 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 08-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER M. A NO. 02 /KOL/ 2014 (A/O ITA NO.1675/KOL/2008) ASSESSMENT YEAR: 2005 - 06 DY. COMMISSIONER OF INCOME TAX, CIRCLE - 7, CHOWRINGHEE, 5 TH FLOOR, ROOM NO.15, KOLKATA 700 069 / V/S . M/S A Z IMGANJ ESTATES PVT. LTD., AZIMGANJ HOUSE, 7, CAMAC STREET, KOLKATA 700 007 [ PAN NO. AACCA 1084 F ] / APPLI CA NT .. / RESPONDENT / BY APPL IC ANT SHRI S.S. ALAM, JCIT, SR - DR / BY RESPONDENT SHRI S.K. TULSIAN, ADVOCATE / DATE OF HEARING 17 - 10 - 2014 / DATE OF PRONOUNCEMENT 17 - 10 - 2014 / O R D E R PER MAHAVIR SINGH , JUDICIAL M EMBER : - BY WAY OF T HIS MISCELLANEOUS APPLICATION (MA) REVENUE HAS RAISED THE FOLLOWING 17 GROUNDS: - 1. IN THE ABOVE CASE THE ORDER OF HON BLE ITAT, KOLKATA, BENCH B HAS BEEN RECEIVED 2. THE APPEAL WAS PREFERRED BY THE DEPARTMENT IN ITA NO. 1860/KOL/2008, AGAINST THE ORDER OF LD. CIT(A) - VIII, KOLKATA VIDE HIS ORDER IN APPEAL NO. 4/CIT(A) - VIII/08 - 09/C - 7 DATED 24/7/08. M.A. NO.02/KOL/2014 (A/O ITA NO.1675/KOL/2008) DCIT CIR - 7 KOL V. M/S AZIMGANJ ESTATES PVT. LTD. PAGE 2 3. THE GROUND TAKEN BY THE REVENUE WAS LD. CIT(A) - VII, KO LKATA ERRED IN GIVING DIRECTION TO THE AO TO RE - EXAMINE THE ISSUE AT GROUND NO. 8 OF THE FIRST APPEAL IN CONTRAVENTION OF THE PROVISIONS OF SECTION 251(1)(A) 4. IN THE PAGE 21, PARA 4 ( LAST LINE ) OF THE DECISION DELIVERED ON 7 TH JUNE 2012, HON BLE ITAT, B BENCH KOLKATA, HAD SET ASIDE THE ISSUE TO THE FILE OF THE AO ALLOWING THE APPEAL OF THE REVENUE. 5. M/S AZIMGANJ ESTATE PRIVATE LTD (THE ASSESSEE) HAD ALSO PREFERRED AN APPEAL VIDE ITA NO. 1675/KOL/2008 AGAINST THE SAID ORDER OF LD. CIT(A) - VIII, KOLKATA . 6. M/S AZIMGANJ ESTATE PRIVATE LTD (THE ASSESSEE) HAD RAISED THE FOLLOWING GROUNDS: - A. THAT ON FACTS AS WELL AS, THE LD. CIT(A) HAS ERRED IN CONFIRMING INCOME BY WAY OF RENT FROM HOUSE PROPERTY LET OUT AMOUNTING TO RS.55,44,992/ - UNDER THE HEAD PROFI TS AND GAINS OF BUSINESS OR PROFESSION . B. THAT ON FACTS AS WELL AS, THE LD. CIT(A) HAS ERRED IN DISREGARDING THE RATIO OF THE DECISIONS OF THE HON BLE SUPREME COURT CITED IN COURSE OF HEARING. C. THAT ON FATS AS WELL AS, THE LD. CIT(A) HAS ERRED IN DE NYING THE STA T UTORY DEDUCTION AMOUNTING TO RS.16,63,498/ - ADMISSIBLE U/S. 24 OF THE IT ACT . 7. HON BLE ITA, IN THE DECISION DELIVERED ON 7 TH JUNE 2012, DIRECTED THE AO TO COMPUTE THE INCOME FROM HOUSE PROPERTY ( AGAINST FIRST GROUND ), DISMISSED THE SECOND GROUND RAISED BY THE ASSESSEE AND SET ASIDE THE ISSUE TO THE FILE OF THE AO ( THIRD GROUND ). 8. THEREAFTER, M/S AZIMGANJ ESTATE PRIVATE LTD (THE ASSESSEE) PREFERRED A MISCELLANEOUS APPLICATION BEFORE THE HON BLE ITAT, B BENCH KOLKATA, VIDE M.A NO.86/KOL/2 012 BY RAISING GROUND NUMBER 4, PRAYING THAT THAT ON THE FACTS AS WELL AS IN LAW THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO RE - EXAMINE THE TAXABILITY OF THE AMOUNT OF DEPOSIT FROM TENANTS TOWARDS MUNICIPAL TAX AND HELD AS LIABILITY UNDER THE HEAD MUNICIPAL TAX DEPOSIT IN THE BALANCE SHEET INSTEAD OF ADJUDICATING THE MATTER IN FAVOUR OF THE APPELLANT. 9. IN ITS ORDER DATED THE 7 TH SEPTEMBER, HON BLE ITAT, BENCH B KOLKATA, RECALLED ITS ORDER DATED 7/6/12 PASSED IN ITA NO. 1675/KOL/2008 AND DIRECTED TO RE - FIX THE CASE FOR HEARING. 10. HOWEVER, THE SIMULTANEOUS DECISION DELIVERED IN ITA NO. 1860/KOL/2008 WAS NOT WITHDRAWN, SETTING ASIDE THE ISSUE TO THE FILE OF THE AO ALLOWING THE APPEAL OF THE REVENUE. M.A. NO.02/KOL/2014 (A/O ITA NO.1675/KOL/2008) DCIT CIR - 7 KOL V. M/S AZIMGANJ ESTATES PVT. LTD. PAGE 3 11. HON BLE ITAT, BENCH B, KOLKATA DELIVERED A JUDGMENT IN ITA NO. 11675/KOL/2008 ON 26/7/2013, ADJUCATING ONLY ON GROUND NUMBER 4 ONLY DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE, M/S AZIMGANJ ESTATES PVT. LTD. 12. HON BLE ITAT, BENCH B, KOLKATA DID NOT ALLOW AN OPPORTUNITY TO THE AO TO SUBMIT ITS VIEW OR TO COMPLETE THE SET ASIDE ASSESSMENT IN THE DEPARTMENT IN ITA NO. 1860/KOL/2008, AND ALSO IN ASSESSEE S APPEAL VIDE ITA NO. 1675/KOL/2008 (JUDGMENT AGAINST GROUND NUMBER 3 OF THE ASSESSEE, NOT RECALLED BY HON BLE ITAT) 13. HON BLE ITAT, BENCH B A LSO FAILED TO APPRECIATE THE FACT THAT THE JUDGMENT REFERRED TO IN THE ORDER [ CIT V. GILLANDER ARBUTHNOT & CO. LTD . 142 ITR 598 ] OF THE JURISDICTIONAL HIGH COURT WAS NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE CASE, AS IT RELATES TO DETERMINATION OF THE ALV U/S. 23 OF THE IT ACT 1961 AND SUCH ISSUE RELATING TO SECTION 23 WAS NOT RAISED ANYWHERE IN THE ORDER. 14. M/S AZIMGANJ ESTATE PRIVATE LTD (THE ASSESSEE), SUBMITTED TO THE AO ON 16/12/2013 THAT UNDER THE CIRCUMSTANCES, THE EARLIER SET ASIDE ORD ER NO MORE SURVIVES. YOUR GOODSELF, THEREFORE, IS KINDLY REQUESTED TO DROP THE PROCEEDINGS INITIATED . 15. THE TIME LIMIT FOR REASSESSMENT OF THE SET ASIDE MATTER EXPIRES ON 31//3/2014. 16. THERE HAS BEEN A STATE OF CONFUSION, WHETHER THE MATTER HAS BEEN DECIDED FINALLY OR WHETHER THE AO SHOULD PROCEED AHEAD WITH THE SET ASIDE MATER. 17. UNDER SUCH CIRCUMSTANCES IT IS PRAYED THAT THE HON BLE ITAT, BENCH B, KOLKATA SHOULD WITHDRAW ITS ORDER DATED 26/07/2013 AND DECIDE THE MATTER AFRESH IN TOTALITY AFTER ALLOWING THE AO AN OPPORTUNITY TO COMPLETE THE SET ASIDE ISSUE AND AFTER ADJUCATING ON THE ISSUE THAT WHETHER JUDGMENT REFERRED TO IN THE ORDER [ CIT V. GILLANDER ARBUTHNOT & CO. LTD. 142 ITR 598] OF THE JURISDICTIONAL HIGH COURT IS NOT APPLICABLE TO THE FA CTS AND CIRCUMSTANCES OF THE CASE OR NOT? 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STATED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF TRIBUNAL AND RATHER HON BLE JURISDICTIONAL HIGH COURT HAS AFFIRMED THE ORDER OF TRIBUNAL IN ITA NO.. 13 OF 2014 GA NO. 117 OF 2014S DATED 21 ST APRIL, 2014. M.A. NO.02/KOL/2014 (A/O ITA NO.1675/KOL/2008) DCIT CIR - 7 KOL V. M/S AZIMGANJ ESTATES PVT. LTD. PAGE 4 3. ON QUERY FROM THE BENCH, LD. SR - DR COULD NOT POINT ANY MISTAKE IN THE ORDER OF TRIBUNAL AS THERE IS NO MISTAKE APPARENT FROM, THE ORDER OF THE TRIBUNAL DATED 26 - 07 - 2013. HENCE, THE MA FILE D BY THE REVENUE IS DISMISSED. 4. IN THE RESULT, MA FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 17 / 1 0/2014 ( SHAMIM YAHYA ) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEM BER KOLKATA, *DKP - 17 / 1 0/2014 / COPY OF ORDER FORWARDED TO: - 1 . / APPL IC ANT DCIT, CIR - 7, AAYKAR BHAWAN, P - 7, CHOWRINGHEE 5 TH FLOOR, ROOM NO. 15, KOLKATA - 69 2 . / RESPONDENT M/S AZIMGANJ ESTATES PVT. LTD., AZIMGANJ HOUSE, 7 CAMAC STREET, KOLKATA - 17 3 . / CONCERNED CIT 4 . - / CIT (A) 5 . , / DR, ITAT, KOLKATA 6 . / GUARD FILE. BY ORDER/ , / ,