Principal CIT, Kol - 4, Kolkata , Kolkata V. Medicare TPA Service (I) Pvt. Ltd., , Kolkata

MA 231/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8221 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 28-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA [BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI ABY. T. VARKEY, JUDICIAL MEMBER] M.A. NO. 231/KOL/2019 ARISING OUT OF ITA NO. 1045/KOL/2018 ASSESSMENT YEAR: 2013-14 PR. CIT-4, KOLKATA............................................. APPELLANT VS. MEDICARE TPA SERVICE (I.) PVT. LTD.............................................................................RESPONDENT [PAN: AADCM 1682 L] APPEARANCES BY: SH. SUPRIYO PAL, JCIT, SR. DR APPEARED ON BEHALF OF THE REVENUE. SH. SUBASH AGARWAL, ADV., APPEARED ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : JANUARY 17 TH , 2020 DATE OF PRONOUNCING THE ORDER : JANUARY 22 ND , 2020 ORDER PER J. SUDHAKAR REDDY, AM :- BY THIS MISCELLANEOUS APPLICATION THE REVENUE SUBMITS THAT THE MISTAKE APPARENT ON RECORD HAS CREPT INTO THE ORDER OF THE TRIBUNAL DATED 10.05.2019 IN ITA NO. 1045/KOL/2018. 2. THE ALLEGED MISTAKES ARE AS FOLLOWS: 1. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE ASSESSEE COMPANY HAS SUBMITTED INCORRECT FACTS BEFORE THE HONBLE ITAT, KOLKATA THAT THE GOVT, OF WEST BENGAL TERMINATED THE LEASE VIDE REF: NO. ADDA/DGPT/T-270/5261(H). 2. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE ASSESSEE COMPANY FAILED TO FILE DOCUMENTARY EVIDENCES IN RESPECT OF ITS CONTENTION BEFORE THE HONBLE ITAT THAT THE LEASE DEED HAS BEEN TERMINATED BY THE GOVT, OF WEST BENGAL BUT THE AFORESAID LEASE LAND WAS SHOWN AS THEIR LEASEHOLD PROPERTY IN THE BALANCE SHEET OF THE ASSESSEE COMPANY AS ON 31/03/2019. THEREFORE, THE LEASEHOLD PROPERTY IS STILL IN THE HANDS OF THE ASSESSEE. 3. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE PURPOSE OF RECEIPT OF SECURITY DEPOSIT OF RS. 1,01,00,000/- FROM THE DEVELOPER ON ACCOUNT OF JOINT DEVELOPER AGREEMENT HAS NOT BEEN DISCUSSED AND ADJUDICATED IN THE ORDER AND THE ASSESSEE COMPANY IN THEIR LATEST ITR FOR A.Y. 2019-20 HAS ALSO SHOWN THE AFORESAID SECURITY DEPOSIT OF RS.1.01 CRORES UNDER THE HEAD OTHER DEPOSITS. 4. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, THE AFORESAID TRANSACTIONS OF JOINT DEVELOPMENT AGREEMENT MADE BY THE ASSESSEE COMPANY COMES WITHIN THE AMBIT OF TRANSFER AS DEFINED U/S. 2(47) OF THE I.T. ACT, 1961. 2 M.A. NO. 231/KOL/2019 A.O.O. ITA NO. 1045/KOL/2018 ASSESSMENT YEAR: 2013-14 MEDICARE TPA SERVICE (I.) PVT. LTD. 3. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE TRIBUNAL IN ITS IMPUGNED ORDER HAS FOLLOWED THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. BALBIR SINGH MAINI [2017] 398 ITR 531 (SC) AND HELD THAT THERE IS NO TRANSFER U/S 2(47) OF THE ACT, AS THE JDA IS AN UNREGISTERED DOCUMENT. THUS, THE POINT ON WHICH THE MISCELLANEOUS APPLICATION IS FILED IS DEVOID OF MERIT. THERE IS NO MISTAKE APPARENT ON RECORD THAT CREPT INTO THE ORDER OF THE TRIBUNAL. MOREOVER, REFERENCE IS MADE TO THE INCOME TAX RETURN FOR THE AY 2019-20 AND RECTIFICATION IS SOUGHT IN THE ORDER PASSED FOR THE AY 2013-14. INCOME TAX RETURN FOR THE AY 2019-20 IS NOT A PART OF RECORD, EITHER BEFORE THE PR. CIT-4, KOLKATA WHEN HE PASSED HIS ORDER U/S 263 OF THE ACT DATED 27.02.2018 OR BEFORE THE TRIBUNAL WHEN IT PASSED THE IMPUGNED ORDER ON 10.05.2019. THE PITH AND SUBSTANCE OF THE TRIBUNALS ORDER IS THAT, IT WAS A DUTY OF THE PR. CIT TO CONDUCT VERIFICATION AND ENQUIRY INTO THE FACTUAL POSITION AND EXAMINE THE DOCUMENTS FURNISHED BY THE ASSESSEE AND THEN ONLY TO COME TO A CONCLUSION, AS TO WHETHER THERE IS AN ERROR IN THE ORDER PASSED BY THE AO WHICH IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. AS NO SUCH VERIFICATION WAS CONDUCTED AND IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF BALBIR SINGH MAINI (SUPRA), THE TRIBUNAL HAD COME TO A CONCLUSION THAT THE ORDER PASSED U/S 263 OF THE ACT BY THE LD. PR. CIT IS BAD IN LAW. 4. IN VIEW OF THE ABOVE DISCUSSION WE DISMISS THE MISCELLANEOUS APPLICATION ON THE GROUND THAT THERE IS NO MISTAKE APPARENT ON RECORD IN THE IMPUGNED ORDER OF THE TRIBUNAL. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION IS DISMISSED. KOLKATA, THE 22 ND JANUARY, 2020. SD/- SD/- [ABY T. VARKEY] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22.01.2020 BIDHAN 3 M.A. NO. 231/KOL/2019 A.O.O. ITA NO. 1045/KOL/2018 ASSESSMENT YEAR: 2013-14 MEDICARE TPA SERVICE (I.) PVT. LTD. COPY OF THE ORDER FORWARDED TO: 1. PR. CIT-4, KOLKATA. 2. MEDICARE TPA SERVICE (I.) PVT. LTD., 6B, BISHOP LEFROY ROAD, GROUND FLOOR, 10, 6B, PAUL MANSION, BHOWANIPORE, KOLKATA-700 020. 3. CIT(A)- 4. CIT- 5. CIT(DR), KOLKATA BENCHES, KOLKATA. (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES