M/s Lokenath Engineering Co., Kolkata V. I.T.O Wd-31(1), Kolkata, Kolkata

MA 3/KOL/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1650 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 10-01-2014
• Court: TRIBUNAL
• Assessee Lawyers: S BASU

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA [BEFORE HONBLE SRI ABRAHAM P.GEORGE, AM & HONBLE SRI GEORGE MATHAN, JM] M.A.NO.03/KOL/2014 A/O ITA NO.1521/KOL/2012 ASSESSMENT YEAR : 2009-10 ( APPELLANT ) (RESPONDENT) M/S.LOKENATH ENGINEERING CO. -VS- I.T.O., WARDS-3 1(1) KOLKATA KOLKATA (PAN AACFL 5118L) FOR THE APPELLANT: SHRI S.BASU, ADVOCATE FOR THE RESPONDENT: SHRI VIVEK VERMA, JCIT, SR.DR DATE OF HEARING : 21.02.2014. DATE OF PRONOUNCEMENT : 21. 02.2014. ORDER PER SHRI GEORGE MATHAN, JM THIS IS A MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE AGAINST ORDER OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN ITA NO.1521/K OL/2012 DATED 13.12.2013 . 2. SHRI S.BASU, ADVOCATE REPRESENTED ON BEHALF OF T HE ASSESSEE AND SHRI VIVEK VERMA, JCIT(SR.DR) REPRESENTED ON BEHALF OF THE REV ENUE. 3. IN THE MISCELLANEOUS APPLICATION THE ASSESSEE HA S RAISED THREE ISSUES. THE FIRST ISSUE WAS AGAINST THE FINDING OF THE TRIBUNAL BY RE STRICTING THE DISALLOWANCE TO THE EXTENT OF 5% OF THE LABOUR CHARGES. IT WAS THE SUBM ISSION THAT THE ASSESSEE HAD SHOWN A NET PROFIT OF 6% FOR THE RELEVANT ASSESSMENT YEAR . IT WAS THE SUBMISSION THAT DISALLOWING 5% OF LABOUR CHARGES WAS EXCESSIVE AND UNREASONABLE. IT WAS THE SUBMISSION THAT THE ORDER OF THE TRIBUNAL BE MODIFI ED. M.A.NO.03KOL/2014 A/O ITA NO.1521/KOL/2012 M/S.LOKENA TH ENGINEERING CO. A.YR.2009-10 2 4. IN REPLY THE LD. DR SUBMITTED THAT THE REFIXING OF THE DISALLOWANCE UNDER THE HEAD LABOUR CHARGES AMOUNTS TO REVISION OF THE OR DER OF TRIBUNAL WHICH IS NOT PERMISSIBLE IN THE MISCELLANEOUS APPLICATION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS TH E ASSESSEE HAS NOT POINTED OUT ANY SPECIFIC MISTAKE ON THIS ISSUE IN THE ORDER OF THE TRIBUNAL WE ARE OF THE VIEW THAT THE ORDER OF THE TRIBUNAL ON THIS ISSUE WHICH HAS B EEN DECIDED ON MERITS CANNOT BE A SUBJECT MATTER OF MISCELLANEOUS APPLICATION U/S 254 (2) OF THE ACT. 6. THE SECOND ISSUE RAISED WAS THAT IN PARA 6.1 OF THE ORDER OF THE TRIBUNAL THE TRIBUNAL HAS RESTORED THE ISSUE OF VERIFICATION IN RESPECT OF THE AMOUNTS OUTSTANDING AT THE END OF THE YEAR OF THREE PARTIES. HOWEVER, THE TRIBUNAL HAS HELD THAT AS FOLLOWS : IN THE INTEREST OF JUSTICE AND FAIR PLAY WE RESTOR E ALL THESE THREE GROUNDS TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSE. IT WAS THE SUBMISSION THAT IN PLACE OF THREE GROUND S IT SHOULD BE THREE PARTIES. 7. IN REPLY THE LD. DR HAD NO OBJECTION. 8. WE HAVE CONSIDERED THE SUBMISSIONS. AS IT IS NO TICED THAT THE ISSUE RAISED IN THE MISCELLANEOUS APPLICATION CLEARLY SHOWS THAT A MIST AKE IS APPARENT FROM RECORD. THE SAME STANDS CORRECTED. THE SAID SENTENCE SHALL BE A S FOLLOWS : IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTO RE ALL THESE THREE PARTIES TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER GIVING DUE OPPORTU NITY TO THE ASSESSEE. 9. THE THIRD ISSUE RAISED BY THE ASSESSEE WAS THAT GROUND NO.4 OF THE ASESSEES APPEAL HAD BEEN ARGUED BUT NO DECISION HAD BEEN GIV EN BY THE TRIBUNAL. IT WAS THE SUBMISSION THAT THE ISSUE WAS IN RESPECT OF THE DIS ALLOWANCE OF TDS. 10. IN REPLY THE LD. DR SUBMITTED THAT THE ISSUE C AN BE RESTORED TO THE FILE OF AO FOR VERIFICATION AND ADJUDICATION. M.A.NO.03KOL/2014 A/O ITA NO.1521/KOL/2012 M/S.LOKENA TH ENGINEERING CO. A.YR.2009-10 3 11. WE HAVE CONSIDERED THE SUBMISSIONS. A PERUSAL OF THE ORDER OF THE TRIBUNAL CLEARLY SHOWS THAT GROUND NO.4 OF THE ASSESSEES AP PEAL HAS NOT BEEN ADJUDICATED THOUGH THE SAME HAS BEEN ARGUED. IN THE CIRCUMSTANC ES AFTER TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE ASSESSEE AND THE LD.DR THE I SSUE OF TDS IS RESTORED TO THE FILE OF THE AO FOR VERIFICATION IN RESPECT OF UPLOADING OF THE TDS DETAILS AND NECESSARY ADJUDICATION IN RESPECT OF THE SAME. . 12. IN THE RESULT THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS PARTLY ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 21.02.2014. SD/- SD/- [ABRAHAM P.GEORGE] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 21.02.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. M/S.LOKENATH ENGINEERING CO., 14, GANESH CHANDRA AV ENUE, KOLKATA-700013. 2 I.T.O., WARD-31(1), KOLKATA 3. CIT (A)-XIX, KOLKATA 4. CIT KOLKATA 5. . CIT(DR), KOLKATA. / TRUE COPY, / BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES