M/s. Kanoria Chemicals & Industries Ltd., , Kolkata V. Additional CIT, Range - 10, Kolkata

MA 32/KOL/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5008 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-03-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 22-11-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Bad and doubtful debts; Set aside
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH KOLKATA Before Shri Sanjay Garg, Judicial Member and Shri Girish Agrawal, Accountant Member MA No.32/Kol/2021 (in I.T.A. No.2184/Kol/2018) Assessment Year: 2012-13 M/s Kanoria Chemicals & Industries Ltd, Kolkata ................................Appellant C/o Salarpuria Jajodia & Co., 7 Chittaranjan Avenue, Kolkata-72. [PAN: AABCK1291K] vs. ACIT, Range-10, Kolkata......................................................................Respondent Appearances by: Shri Siddharth Jhajharia, FCA appeared on behalf of the appellant. Smt. Ranu Biswas, Addl. CIT-DR, appeared on behalf of the Respondent. Date of concluding the hearing : March 11, 2022 Date of pronouncing the order : March 11, 2022 ORDER Per Sanjay Garg, Judicial Member: The present miscellaneous application has been moved by the assessee-applicant stating that a mistake apparent on record as occurred in the common order dated 26.10.2021 passed by the Tribunal in ITA No.2184/Kol/2018 & ITA 2439/Kol/2018. A perusal of the application of the assessee reveals that the assessee has agitated against the findings of the Tribunal given on merits in relation to the additional ground taken in appeal in respect of allowability of education cess and further relating to the findings given by the Tribunal while allowing Ground No.3 of the Department’s appeal relating to additions on account of bad debts written off. The contents of the miscellaneous application for the sake of ready reference are reproduced as under: 1. That, this application requesting for recalling the order dated 26 th . October, 2021 passed by the Hon’ble Income Tax Appellate Tribunal, Kolkata in appeal bearing ITA No. 2184/Kol /2018 and 2439/Kol/2018 for Assessment Year 2012-13. 2. (a) That, the Additional Ground of the Petitioner in respect of allowability of Education Cess amounting to Rs.3,19,95,981/- which according to the Petitioner has been dismissed mechanically and arbitrarily for the following reasons – MA No.32/Kol/2021 M/s Kanoria Chemicals & Industries Ltd, Kolkata Assessment Year: 2012-13 2 (i) That, the judgment of non-jurisdictional High Court are binding on ITAT and Hon’ble Bench erred in not following the impugned judgments of Hon’ble Rajasthan High Court (Chambal Fertilizers & Chemicals Industries Ltd. ITA 52/Raj/2018 dt. 31.7.2017) and Hon’ble Bombay High Court (Sesa Goa Ltd. - 117 taxmann.com 96) and as such the judgment so rendered by Hon’ble Bench suffers infirmity and is amenable to be rectified u/s 254(2) of the Act. (ii) That the Bench had relied upon a decision of the Hon’ble Apex Court [CIT v. K. Srinivasan reported in 83 ITR 346] which as per the Bench was not considered by the Hon’ble Rajasthan High Court [in the case of Chambal Fertilisers & Chemicals Industries ITA No. 52/Raj/2018 dated 31.7.2018] and Hon’ble Bombay High Court [ in SESA Goa Ltd. 117 taxman.com 96 ] and as such the decision so rendered was not correct, since it not within the powers of the Tribunal to review/ dissent from judgment passed by Hon’ble High Courts and hence the order so passed by Hon’ble Bench suffers infirmity and is amenable to be rectified under section 254(2) of the Act. (iii) That the judgment of Hon’ble Supreme Court (supra) so referred to by Hon’ble Bench in its order has no application in appellant’s case and hence the reliance so placed is incorrect and hence order so passed is amenable to sec. 254(2) of the Act. (iv) Without prejudice to the above, even assuming but not admitting, if the decision of the Hon’ble Supreme Court (supra) had any relevance, to the Petitioner’s Additional Grounds of Appeal, then the Learned Bench was duty Bound to bring it to the notice of the Learned AR’s of the Appellant’s during the course of the Hearing of the Appeal or before passing of the order. (v) That the decision so relied upon by the Hon’ble Bench was neither cited by the Bench nor the Revenue nor the Appellant and hence the order so passed is a “mistake apparent from records” and hence is amenable under section 254(2) of the Act. (vi) That, the Bench have not followed the consistent view taken by the jurisdictional Tribunal at Kolkata, deciding the issue in favour of the petitioner and were brought to the knowledge of the Bench. (vii) That, the Bench had failed to distinguish the decisions of the jurisdictional Tribunal at Kolkata and as to how the principles consistently followed by the jurisdictional Tribunal at Kolkata are not correct or perverse. (viii) That, one of the Members, who has co-authored the order, had himself passed an order deciding the issue in favour of the assessee before it (allowing such deduction of education cess) (vide order dated 11 th August, 2021 at Kolkata Benches). (ix) That, the Co-ordinate Bench of the jurisdictional tribunal at Kolkata, on the same date of the passing of the order that is on 26 th October, 2021, against which the petitioner is aggrieved had passed an order on similar issue, as to allowability of impugned matter i.e. “education cess” and had allowed the concerned assessee’s appeal. (x) That, the Hon’ble bench was duty bound to follow the decisions of the co-ordinate Benches and other High Courts and as such the order so passed is amenable to section 254(2) of the Act. MA No.32/Kol/2021 M/s Kanoria Chemicals & Industries Ltd, Kolkata Assessment Year: 2012-13 3 (xi) That, the Learned Bench, failed to take cognizance of the CBDT Circular No. 91/58/66-ITJ (19), dated 18.5.1967 which was binding on the Income Tax Department and which was relied on by Hon’ble High Courts at Rajasthan and Bombay and hence the judgement so passed by Hon’ble Bench is amenable to section 254(2) of the Act. (xii) That, the Ld. Bench failed to refer it for reference for constitution of Special Bench u/s 255(3), (4), (5) and (6) of IT Act and as such failed to comply with the prevailing practice for reference to Hon’ble Vice-President or Hon’ble President of ITAT for constitution of “Special Bench” and as such the order so passed suffers infirmity and is liable to be recalled. Under the circumstances, by your aforesaid order your petitioner is much aggrieved and had suffered badly and hence this is to request Your Honours to kindly recall the referred order dated 26 th October, 2021 passed in ITA Nos. 2184/Kol /2018 and 2439/Kol/2018, relating to Assessment Year: 2012-13 and your petitioner may kindly be allowed a fresh opportunity of being heard. 3. (a) That, Ground No. 3 of the Department’s Appeal (ITA 2184/Kol/2018) , relating to Additions on account of Bad Debts written off amounting to Rs.59,91,093/- have been allowed in favour of the Department in the order, passed in respect of ITA Nos. 2184/Kol /2018, without any speaking order and also without placing reliance on the case laws and supporting preferred by the AR of the petitioner both in the Paper Book filed before the bench and also during the course of the hearing before the Learned Bench (b) That, none of the Grounds No. 1 to 3 of the Respondent in ITA No. 2439/Kol/2018 have been decided and have been simply stated in the order that since the grounds are connected with the Ground No. 3 of the Department and hence there are no merits on the grounds and hence dismissed (c) That, the judicial pronouncements referred to by the Learned AR of the Petite r.er nether been relied upon including that that of the jurisdictional High Court at Calcutta nor have been distinguished in the order and accordingly, it prayed that the Ground No 3 of the Department which had been decided and Ground Nos. 1 to 3 of the Petitioners may kindly be recalled/reconsidered and necessary instructions may kindly be given to decide the grounds afresh 4. This petition is being made u/s 254(2) of the Act and in the interest of justice. 5. Unless an order as prayed herewith is made, your petitioner will suffer irreparable loss and prejudice. Under the circumstances, your petitioner most humbly prays that:- a. The order dated 26 th October, 2021 passed in ITA Nos. 2184/Kol/2018 and 2439/Kol/2018 relating to Assessment Year 2012-13 may kindly be recalled and/or set aside and the said appeal be disposed off afresh after hearing your petitioner. MA No.32/Kol/2021 M/s Kanoria Chemicals & Industries Ltd, Kolkata Assessment Year: 2012-13 4 b. Such further order or orders be made and/or directions be given as would afford complete relief to your petitioner and your petitioner as in duty, bound shall ever pray for the same. 2. A perusal of the above reproduced contents of the miscellaneous application reveals that the grievance of the assessee is relating to the findings given by the Tribunal on merits. There is nothing pointed out by the ld. Counsel which may constitute as any error apparent on record. The powers of the Tribunal while exercising jurisdiction u/s 254(2) of the Income Tax Act are very limited which are restricting to only rectification of any mistake apparent on records. Further as discussed above, the assessee wants this Tribunal to re-look into the issues on merits which cannot be allowed u/s 254(2) of the Income Tax Act. The proper course of the assessee, if so advised, is to approach the High Court by way of an appeal or otherwise, as may be advised. There is no merit in the present application and the same is accordingly dismissed. In the result, the Miscellaneous Application filed by the assessee is dismissed. Kolkata, the 11 th March, 2022. Sd/- Sd/- [Girish Agrawal] [Sanjay Garg] Accountant Member Judicial Member Dated: 11.03.2022. RS Copy of the order forwarded to: 1. M/s Kanoria Chemicals & Industries Ltd, Kolkata 2. ACIT, Range-10, Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR),