I.T.O.,Ward-35(1), Kolkata V. Prakash Chand Baid, Kolkata

MA 208/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3782 (ITAT-KOLKATA)
• Duration Of Justice: 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-11-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 30-10-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAUL J
• Keywords: Audit objection; Tax effect
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER (MISC. APPLICATION) M.A.NO.208/KOL/2019 & ITA NO.410/KOL/2019 / ASSESSMENT YEAR:2013-14 INCOME TAX OFFICER, WARD- 35(1), ROOM NO. 715, 7 TH FLOOR, AAYAKAR BHAWAN, POORVA, SHANTIPALLY, KOLKATKA-001 / V/S . PRAKASH CHAND BAID 9, INDIA EXCHANGE PLACE, ROOM NO.3, 5 TH FLOOR, KOLKATA-700 001 [ PAN NO.AEBPB 7299 B ] /APPLICANT .. /RESPONDENT /BY ASSESSEE SHRI AMIT AGARWAL, FCA /BY REVENUE SHRI SUPRIYO PAUL, JCIT-DR $ /DATE OF HEARING 29-11-2019 $ /DATE OF PRONOUNCEMENT 29-11-2019 /O R D E R THIS REVENUES MISCELLANEOUS PETITION FILED U/S 25 4(2) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT SEEKS TO RE-CALL / RECTIFY THE TRIBUNALS ORDER DATED 07.08.2019 DISMISSING THE MAIN APPEAL FOR HAVING INVOLVED LOWE R THAN PRESCRIBED TAX EFFECT OF 20 LAKH AS PER CBDTS CIRCULAR NO.3/2018 DATED 11.0 7.2018. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE REVENUES SOLE GRIEVANCE CANVASSED IN THE IN STANT MISCELLANEOUS APPLICATION IS THAT THE TRIBUNALS IMPUGNED ORDER H AS WRONGLY TREATED THE MAIN LIS INVOLVING LOWER THAN THE PRESCRIBED TAX EFFECT OF 20 LAKH AS PER CBDTS CIRCULAR NO.3/2018 DATED 11.07.2018. ITS CASE IS THAT SINCE THE INSTANT APPEAL RELATING TO AUDIT OBJECTION, THE SAME IS COVERED IN EXCEPTION CLAUSE( S) IN THE CBDTS NOT COVERED UNDER TAX EFFECT SPECIFIED CASES. LEARNED AUTHORIZED REPR ESENTATIVE DOES NOT DISPUTE THIS FACTUAL POSITION. I THEREFORE RE-CALL THE TRIBUNAL S ORDER DATED 07.08.2019 REJECTING THE MA NO.208/KOL/2019 & ITA NO.410/KOL/2019 A.Y. 2 013-14 ITO WD-35(1), KOL VS. PRAKASH CHAND BAID PAGE 2 REVENUES MAIN APPEAL IN ITA NO.410/KOL/2019 TO BE INVOLVING LOWER THAN PRESCRIBED TAX EFFECT FOR THIS PRECISE REASON ALONE. THIS REVENUES MISCELLANEOUS APPLICATION MA NO.208/ KOL/2019 IS ALLOWED. 3. I NOW PROCEED TO DEAL WITH MAIN APPEAL ITA NO.41 0/KOL/2019 ITSELF WITH THE CONSENT OF BOTH THE PARTIES. LEARNED CIT(A) APPEARS TO HAVE RESTRICTED U/S 14A R.W.S 8D (II) PROPORTIONATE DISALLOWANCE OF 9,37,317/- TO 1,55,281/- AFTER TAKING INTO CONSIDERATION ONLY THE DIVIDEND YIELDING INVESTMENT AS PER THE TRIBUNALS ORDER IN REI AGRO LTD. VS. DCIT (2013) 144 ITD (141) (KOL) UPHELD BY HON'BLE JURIS DICTIONAL HIGH COURT IN ITAT NO.1811 OF 2012 DATED 14.05.2013. I FIND NO REASON TO ACCEPT THE REVENUES INSTANT SOLE SUBSTANTIVE GRIEVANCE. THE F ACT REMAINS THAT THE CIT(A) DIRECTED THE ASSESSING OFFICER TO CALCULATE THE IMP UGNED DISALLOWANCE ONLY AFTER KEEPING IN MIND THE DIVIDEND YIELDING INVESTMENT AS PER LAW. I THEREFORE SEE NO REASON TO TAKE A DIFFERENT VIEW EVEN ON MERITS AS WELL. TH IS REVENUES APPEAL ITA NO.410/KOL/2019 IS DISMISSED ACCORDINGLY. 4. THE REVENUES MISCELLANEOUS APPLICATION MA NO.208/KOL/2019 IS ALLOWED WHEREAS ITS MAIN APPEAL ITA NO.410/KOL/2019 IS DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING ON 29 TH NOVEMBER, FRIDAY 2019 SD/- (S.S. GODARA ) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS ( - 29/11/2019 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-PRAKASH CHAND BAID, 9, INDIA EXCHANGE PLA CE, R.NO.3, 5 TH FLOOR, KOLKATA-001 2. /REVENUE-INCOME TAX OFFICER, WARD-35(1), R.NO.715, 7 TH FLOOR, AYAKAR BHAWAN, POORVA, SHANTIPALLY, KOLKATA-700 001 3. + , / CONCERNED CIT 4. , - / CIT (A) 5. + , $ + / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ $ +,