Rajeev Biswas , Kolkata V. DCIT(International Taxation) Circle 2(1), Kolkata , Kolkata

MA 205/KOL/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6117 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 13-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 5(2); 154

Judgement Text

1 M.A. NO. 205/KOL/2017 (ARISING OUT OF I.T.A. NO. 1176/KOL/2017) ASSESSMENT YEAR : 2012-2013 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. NO. 205/KOL./2017 (IN I.T.A. NO. 1176/KOL./2017) ASSESSMENT YEAR : 2012-2013 SHRI RAJEEV BISWAS,................................ ...................................APPLICANT 11A/1, SAHID DINESH GUPTA ROAD, BEHALA, KOLKATA-700 034 [PAN: AETPB 8066 Q] -VS.- DEPUTY COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION).......................................... ........................................RESPONDENT CIRCLE-2(1), KOLKATA, R/NO. 210, 2 ND FLOOR, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-700 107 APPEARANCES BY: SHRI MANOJ DUTTA, FCA, FOR THE APPLICANT SHRI N.B. SOM, JCIT, D.R., FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JANUARY 05, 2018 DATE OF PRONOUNCING THE ORDER : JANUARY 05, 2018 O R D E R PER SHRI P.M. JAGTAP, ACCOUNTANT MEMBER : BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED SEPTEMBER 27, 2017 PASSED IN I.T.A. NO. 1176/KOL/2017. 2. AS SUBMITTED BY THE ASSESSEE IN THE PRESENT MISC ELLANEOUS APPLICATION AND FURTHER REITERATED BY HIS LD. COUNS EL AT THE TIME OF HEARING BEFORE THE TRIBUNAL, THERE ARE ALLEGEDLY TH E FOLLOWING MISTAKES IN THE ORDER OF THE TRIBUNAL DATED SEPTEMBER 27, 2017 (SUPRA) :- 2.1. THAT THE LD. BENCH DID NOT APPRECIATE THAT A LTERATION IN ANY RETURNED FIGURE CANNOT BE DONE U/S. 143(1). THE SCO PE IS VERY 2 M.A. NO. 205/KOL/2017 (ARISING OUT OF I.T.A. NO. 1176/KOL/2017) ASSESSMENT YEAR : 2012-2013 LIMITED AND/OR RESTRICTED AND ANY DEVIATION BEYOND THE PURVIEW OF THIS SECTION. SERIAL NO. 37 IN THE INTIMATION BE ING TAX ON TOTAL INCOME HAS BEEN CHANGED BY THE CPC FROM '0' TO RS.3 ,53,931/- WHICH IS NOT PERMISSIBLE AND VIOLATES 'ANY RETURNED FIGURE' AS USED IN THE SECTION. 2.2. THAT THE LD. BENCH DID NOT CONSIDER SECTION 1 54(1)(A) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE REC ORD, THE INCOME TAX AUTHORITY MAY AMEND ANY ORDER PASSED BY IT UNDER THE PROVISIONS OF THIS ACT'; AND SECTION 154(1)(B)- AMEND ANY INTIMATION OR DEEMED INTIMATION UNDER SUB-SECTION ( 1) OF SECTION 143. THE WORD RECORD IS NOT CONFINED TO THE RETURN ONLY, THE ACT HAS USED THE WORD RECORD AND NOT RETURN. SECTIO N 154 WHICH CONFERS JURISDICTION FOR RECTIFYING MISTAKE ENABLES THE ITO TO ASSUME JURISDICTION WHEN HE FINDS ANY MISTAKE APPAR ENT FROM THE RECORD. THE WORD 'RECORD' AS USED IN SEC. 154 WILL INCLUDE ALL THAT MATERIALS WHICH FORMS PART OF THE ASSESSMENT P ROCEEDINGS AND NOT ONLY THE RETURNS. IF IT IS APPARENT FROM TH E RECORD OF ASSESSMENT THAT THE ASSESSEE WAS ENTITLED TO A PART ICULAR RELIEF, THE ITO CAN RECTIFY THAT MISTAKE U/S. 154 ALTHOUGH NOT CLAIMED BY THE ASSESSEE IN THE ORIGINAL RETURN. 2.3. THAT THE LD. BENCH MUST BE AWARE THAT THE INC OME OF A N.R.1. FROM FOREIGN SHIPS OPERATING OUTSIDE THE TERRITORIA L WATER JURISDICTION IS EXEMPT AND CAN NEVER BE A DEBATABLE POINT. SECTION 5(2) EXPLANATION-I STATES: 'INCOME ACCRUING OR ARISING OUTSIDE INDIA SHALL NOT BE DEEMED TO BE RECEIVED IN INDIA WITHIN THE MEANING OF THIS SECTION BY REASON ONLY OF THE F ACT THAT IT IS TAKEN INTO THE ACCOUNT IN A BALANCE SHEET PREPARED IN INDIA'. EXPLANATION 2 CLARIFIES THAT INCOME WILL NOT BE TRE ATED TO BE RECEIVED IN INDIA SOLELY ON THE BASIS THAT SUCH INC OME WAS RECEIVED OR DEEMED TO BE RECEIVED IN INDIA. ADMITTE DLY, CONVERTIBLE FOREIGN EXCHANGE WAS REPATRIATED TO IND IA THROUGH NRE A/C ONLY AND THE STATUS WAS NRI. ANY DENIAL WIL L BE GROSS INJUSTICE. WE RELY UPON THE CBDT CIRCULAR NO 13/201 7 NEW DELHI DATED 11.04.2017 (READ WITH CIRCULAR NO. 14 (XL-35) DATED 11 APRIL 1995) AS ALSO THE CALCUTTA HIGH COURT LATEST DECISION IN UTANKA ROY V.S. DCIT-INTERNATIONAL TAXATION - TRANS FER PRICING KOLKATA IN W.P. NO. 369 OF 2014 AND ORDER DATED 15 DECEMBER 2016. THE TRIBUNAL BEING THE FINAL FACT FINDING AUT HORITY, IS EXPECTED TO LOOK INTO THE MATTER AFRESH. 3. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THERE ARE NO MISTAKES IN THE ORDER OF THE TRIBUNAL DATED SEPTEMB ER 27, 2017 (SUPRA) AS ALLEGED BY THE ASSESSEE IN THE PRESENT MISCELLAN EOUS APPLICATION. HE CONTENDED THAT THE ASSESSING OFFICER WAS FULLY EMPO WERED TO RE-COMPUTE 3 M.A. NO. 205/KOL/2017 (ARISING OUT OF I.T.A. NO. 1176/KOL/2017) ASSESSMENT YEAR : 2012-2013 THE TAX PAYABLE BY THE ASSESSEE AS PER CLAUSE (B) O F SECTION 143(1). HE FURTHER CONTENDED THAT THE ADJUSTMENT SOUGHT BY THE ASSESSEE WAS BEYOND THE SCOPE OF SECTION 143(1)(A) AND, THEREFORE, THE SAID ADJUSTMENT SOUGHT BY THE ASSESSEE BY WAY OF RECTIFICATION UNDER SECTI ON 154 WAS RIGHTLY REJECTED BY THE ASSESSING OFFICER. HE ALSO CONTENDE D THAT THE ISSUE ON WHICH THE RECTIFICATION WAS SOUGHT BY THE ASSESSEE, IN ANY CASE, WAS HIGHLY DEBATABLE AT THE RELEVANT TIME AND THE SAME, THEREFORE, EVEN OTHERWISE WAS BEYOND THE SCOPE OF SECTION 154. HE C ONTENDED THAT ALL THESE ASPECTS HAVE BEEN DULY CONSIDERED BY THE TRIB UNAL WHILE DISMISSING THE APPEAL OF THE ASSESSEE VIDE ITS APPELLATE ORDER DATED SEPTEMBER 27, 2017 AND THERE IS NO MISTAKE APPARENT FROM RECORD I N THE SAID ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY C ONTENDED BY THE LD. D.R., THE ISSUE ON WHICH RECTIFICATION WAS SOUGHT B Y THE ASSESSEE IN INTIMATION ISSUED BY THE ASSESSING OFFICER UNDER SE CTION 143(1)(A) WAS BEYOND THE SCOPE OF ADJUSTMENT PERMISSIBLE UNDER SE CTION 143(1)(A) AND THE APPLICATION OF THE ASSESSEE FILED UNDER SECTION 154 FOR SUCH RECTIFICATION WAS RIGHTLY REJECTED BY THE ASSESSING OFFICER. MOREOVER, THE SAID ISSUE BEING HIGHLY DEBATABLE ONE AT THE RELEVA NT TIME WAS BEYOND THE SCOPE OF RECTIFICATION PERMISSIBLE UNDER SECTION 15 4. AS A MATTER OF FACT, THERE WAS A MISTAKE IN THE RETURN OF INCOME FILED B Y THE ASSESSEE IN COMPUTING THE TAX PAYABLE ON THE INCOME RETURNED AN D ADJUSTMENT FOR THE SAME, THEREFORE, WAS MADE BY THE ASSESSING OFFICER AS PER CLAUSE (B) OF SECTION 143(1). AS RIGHTLY CONTENDED BY THE LD. D.R ., ALL THESE ASPECTS WERE DULY TAKEN INTO CONSIDERATION BY THE TRIBUNAL WHILE DISMISSING THE APPEAL OF THE ASSESSEE VIDE ITS ORDER DATED SEPTEMB ER 27, 2017 AND THERE IS NO MISTAKE MUCH LESS A MISTAKE APPARENT FROM REC ORD IN THE SAID ORDER OF THE TRIBUNAL. WHAT THE ASSESSEE IS SEEKING BY WA Y OF PRESENT MISCELLANEOUS APPLICATION IS NOTHING BUT A REVIEW O F THE DECISION TAKEN BY THE TRIBUNAL VIDE ITS ORDER DATED SEPTEMBER 27, 2017, WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2). WE, THEREFORE, FI ND NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND DISMISS THE SAME. 4 M.A. NO. 205/KOL/2017 (ARISING OUT OF I.T.A. NO. 1176/KOL/2017) ASSESSMENT YEAR : 2012-2013 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH DAY OF JANUARY, 2018. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 5 TH DAY OF JANUARY, 2018 COPIES TO : (1) SHRI RAJEEV BISWAS, 11A/1, SAHID DINESH GUPTA ROAD, BEHALA, KOLKATA-700 034 (2) DEPUTY COMMISSIONER OF INCOME TAX (INTERNATIO NAL TAXATION), CIRCLE-2(1), KOLKATA, R/NO. 210, 2 ND FLOOR, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-700 107 (3) COMMISSIONER OF INCOME TAX(APPEALS)-22, KOLKAT A; (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/DDO, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.