A.C.I.T Cir - 35,Kolkata., Kolkata V. Kolkata Port Trust, Kolkata

MA 38/KOL/2013

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3258 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 30-04-2013
• Court: TRIBUNAL
• Keywords: Depreciation; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI B. P. JAIN , AM ] M. A. NO S . 33 TO 35 /KOL/201 3 IN I.T.A NO S . 375 TO 377 / KOL/20 1 0 ASSESSMENT YEAR S : 200 3 - 0 4 TO 2005 - 06 & M. A. NO. 36/KOL/2013 IN I.T.A NO. 378/ KOL/2010 ASSESSMENT YEAR: 2005 - 06 & M.A. NO.37/KOL/2013 IN ITA NO. 379/KOL/2010 ASSESSMENT YEAR: 2003 - 04 DEPUTY COMMISSIONER OF INCOME - TAX, VS. KOLKATA PORT TRUST CIRCLE - 35, KOLKATA (PAN: AAAJK0361L) (APPLICANT) (RESPONDENT) & M. A. NOS. 38 & 39/KOL/2013 IN I.T.A NOS. 98 & 99/KOL/2012 ASSESSMENT YEARS: 2004 - 05 & 2005 - 06 & M.A. NO. 40/KOL/2013 IN I.T.A. NO. 1041/KOL/2007 ASSESSMENT YEAR: 2003 - 04 ASSISTANT COMMISSIONER OF INCOME - TAX, VS. KOLKATA PORT TRUST CIRCLE - 35, KOLKATA (APPLICANT) (RESPONDENT) DATE OF HEARING : 1 9 .0 6 .201 5 DATE OF PRONOUNCEMENT: 1 9 .0 6 .201 5 FOR THE A PPLICANT : SHRI SUNIL KUMAR AGARWAL, JCIT FOR THE RESPONDENT: SHRI N. K. PODDAR, ADVOCATE ORDER PER MAHAVIR SINGH, JM: BY TH E S E MISCELLANEOUS APPLICATION S , REVENUE HAS RAISED CERTAIN ALLEGATIONS AGAINST THE TRIBUNAL AND THE RELEVANT MISC. APPLICATION READS AS UNDER: 1. THE HON'BLE ITAT VIDE THE ABOVE MENTIONED ORDERS HAVE DISPOSED OF THE APPEALS IN THE ABOVEMENTIONED CASE FOR THE A.Y.2003 - 04 VIDE THEIR APPELLATE ORDERS MENTIONED ABOVE. THE HON'BLE ITAT WHILE DISPOSING OF THE APPEALS HAVE NOTED THE DATE OF FINAL HEARING AS 06.11.2012. BUT AS PER OUR RECORD THE LAST HEARING TOOK PLACE IN THE DATE OF 12TH SEPTEMBER, 2012 WHEN THE CCI T - XI, CIT - XII, SHRI SUJIT KUMAR; DR OF THE CASE AND ACIT, CIRCLE - 35, WERE PRESENT. THIS FACT HAS ALSO BEEN CONFIRMED BY SRI SUJIT KUMAR, JCIT AND THE DR. THUS, IT APPEARS THAT FINAL HEARING IF IT HAD TAKEN PLACE ON 2 MA NO. 33 - 40 /K/201 3 KOLKATA PORT TRUST A. Y 200 3 - 0 4 TO 2005 - 06 06.11.2012 WAS WITHOUT GIVING OPPORTUNITY TO THE DEPARTMENT, AND THEREFORE, THE DECISION IS REQUIRED TO BE NOT ACCEPTABLE AND A FRESH DECISION IS REQUIRED TO BE PASSED AS IT IS IN VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. 2. THE FINAL HEARING IN THE CASE CONCLUDED ON 12TH SEPTEMBER, 2012 WHERE IN SHRI SUJIT KUMAR REPRESENTED ON BEHALF OF REVENUE. HOWEVER, THE FINAL ORDER WAS PRONOUNCED ON 24.01.2013, I.E., AFTER 60 DAYS OF FINAL HEARING. EVEN IF IT IS ASSUMED THAT THE LAST DATE OF HEARING IS 6.11.2012 THE MATTER NEEDS TO BE REHEARD AS PER ITATS OWN RULES. 3. THE REVENUE WAS REPRESENTED IN THIS CASE BY TWO OFFICERS, VIZ., SRI ASIT K. MAHAPATRA, CIT(DR), ITAT AND SHRI SUJIT KUMAR; JCIT, RANGE - 35, KOLKATA, WHENEVER THE HEARINGS TOOK PLACE TILL SEPT., 2012. HOWEVER, THE NAME OF ONLY SHRI SUJIT KUMA R, JCIT IS APPEARING IN THE ORDER, WHICH IS CONTRARY TO THE FACTS. FURTHER, BOTH THESE OFFICERS HAVE CONFIRMED THAT THEY WERE NOT PRESENT ON 06.11.2012, THAT IS THE DATE MENTIONED AS THE DATE OF HEARING IN THE IMPUGNED APPELLATE ORDER. 4. THERE IS NO MEN TION IN THE ORDER OF THE HON'BLE TRIBUNAL OF WRITTEN SUBMISSIONS OF THE DEPARTMENT MADE ON FACTS AND ON LAW FROM TIME TO TIME AT THE TIME OF HEARING. 5. THE HON'BLE TRIBUNAL HAD FINALLY HEARD ON THE ISSUE OF REVENUE RECOGNITION ON 12TH SEPT., 2012 AND HA D THEN DECIDED THE ISSUE PARTIALLY IN FAVOUR OF REVENUE IN THE OPEN COURT. ON THE OTHER HAND IN THE ORDER THE DECISION IS CONTRARY TO THE SAID DECISION WITHOUT ASSIGNING ANY REASON AND WITHOUT GIVING ANY OPPORTUNITY TO THE DEPARTMENT. 6. THE HON'BLE ITAT OVERLOOKED THE FACT PLACED BEFORE THEM BY THE DR AT THE TIME OF HEARING THAT THE ASSESSEE THEMSELVES ACKNOWLEDGED THE STAND OF THE DEPARTMENT ON THE POINT OF REVENUE RECOGNITION AND HAVE ADOPTED THE SAID BASIS IN QUANTIFYING THE AMOUNT CHARGEABLE TO TAX U NDER THE SAID CLAIM FROM THE A.Y.2010 - 11, A FACT THAT HAS BEEN MENTIONED IN THE AUDIT REPORT ALSO. 7. HON'BLE ITAT FURTHER ERRED ON FACTS AND IN LAW TO TAKE A DECISION THAT THE ASSESSEE IS ENTITLED TO 100 PER CENT DEPRECIATION ON THE BUILDING THAT WAS P ARTIALLY USED AS OFFICE BUILDING IGNORING THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS RABIN & SONS 251 ITR 881(SC), ALSO IN THE CASE OF CIT VS. ANAND THEATRES 244 ITR 192(SC). 8. THE ABOVE MENTIONED ANOMALIES ARE MATTER OF RECORD AND HAVE CRE PT INTO THE PRESENT ORDER WHICH NEED TO BE RECTIFIED. 9. THEREFORE, IN VIEW OF THE ABOVE, IT IS HUMBLY REQUESTED THAT APPROPRIATE ACTION AS DEEMED FIT MAY BE TAKEN BY THE HON'BLE ITAT AND RECALL THE IMPUGNED ORDER TO TAKE A FRESH DECISION AFTER GIVING APPROPRIATE OPPORTUNITY TO THE DEPARTMENT. 2. AT THE TIME OF HEARING LD. SR. DR COULD NOT SAY ANYTHING ON THE MISC. APPLICATION AS AGAINST LD. SR. ADVOCATE SHRI N. K. PODDAR REFERRED TO THE APPEAL MEMO OF THE REVENUE FILED BEFORE HON BLE HIGH COURT DATED 1 ST JULY, 2013 WHICH IS FILED IN ASSESSEE S PAPER BOOK AT PAGES 1 TO 8. LD. COUNSEL FOR THE ASSESSEE REFERRED TO PARA 4 OF THE PETITION, WHICH READS AS UNDER: 4. IT IS SUBMITTED THAT THE ORDER OF THE TRIBUNAL IS ERRONEOUS FOR THE FOLLOWING REASONS: A) WHILE THE DATE OF FINAL HEARING AS PER ORDER IS 1.11.12, THE LAST DATE OF HEARING AS PER RECORD IS 12.9.12 WHEN THE CCIT - XI, CIT - XII, SHRI SUJIT KUMAR DAS, DR. OF THE 3 MA NO. 33 - 40 /K/201 3 KOLKATA PORT TRUST A. Y 200 3 - 0 4 TO 2005 - 06 CASE AND ACIT, CIRCLE - 35 WERE PRESENT IN THE TRIBUNAL. THUS, THE FINAL HEARING, IF IT HA D TAKEN PLACE ON 6.11.2012, WAS WITHOUT GIVING OPPORTUNITY TO THE DEPARTMENT AND THE DECISION IS, THEREFORE, AGAINST THE PRINCIPLE OF NATURAL JUSTICE. B) THE ORDER HAS BEEN PASSED ON 24.1.13 I.E., AFTER MORE THAN 60 DAYS OF FINAL HEARING EVEN IF IT IS PRESUM ED THAT THE LAST DATE OF HEARING WAS 6.11,12, AGAINST TRIBUNALS RULES. C) THE ORDER MENTIONS THAT THE REVENUE WAS REPRESENTED BY SRI SUJIT KUMAR, WHEREAS SRI A. K. MAHAPATRA, CIT(DR) ALSO REPRESENTED THE DEPARTMENT; BUT HIS NAME IS NOT MENTIONED IN THE ORDER . D) THERE IS NO MENTION IN THE ORDER OF THE LD. TRIBUNAL OF WRITTEN SUBMISSIONS OF THE DEPARTMENT MADE ON FACTS AND ON LAW FROM TIME TO TIME AND AT THE TIME OF HEARING. E) THE ISSUE OF REVENUE RECOGNITION WAS DECIDED PARTIALLY IN FAVOR OF REVENUE IN THE OPEN COURT ON 12.9.12 IN PRESENCE OF DR, WHEREAS THE FINAL ORDER IS TOTALLY AGAINST THE REVENUE ON THIS ISSUE FOR WHICH NO REASON HAS BEEN GIVEN IN THE ORDER. F) THE LD. TRIBUNAL OVERLOOKED THE FACT PLACED BEFORE THEM BY THE DR AT THE TIME OF HEARING THAT THE ASS ESSEE THEMSELVES ACKNOWLEDGED THE STAND OF THE DEPARTMENT ON THE POINT OF REVENUE RECOGNITION AND HAVE ADOPTED THE SAID BASIS IN QUANTIFYING THE AMOUNT CHARGEABLE TO TAX UNDER THE SAID CLAIM FROM THE ASSESSMENT YEAR 2010 - 11, A FACT THAT HAS BEEN MENTIONED IN THE AUDIT REPORT ALSO. G) THE LD. TRIBUNAL FURTHER ERRED ON FACTS AND IN LAW TO TAKE A DECISION THAT HE ASSESSEE IS ENTITLED TO 100 PER CENT DEPRECIATION ON THE BUILDING THAT WAS PARTIALLY USED AS OFFICE BUILDING IGNORING THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS. RABIN & SONS 251 ITR 881 (SC), ALSO IN THE CASE OF CIT VS ANAND THEATRES 244 ITR 192(SC). 3. IN VIEW OF THE ABOVE, LD. COUNSEL FOR THE ASSESSEE STATED THAT THESE ISSUES AS RAISED IN THE ABOVE PETITION HAVE ALREADY BEEN TAKEN UP BEF ORE HON BLE CALCUTTA HIGH COURT AND HON BLE HIGH COURT HAS ALREADY ADJUDICATED THE ISSUE ON MERITS AND CONFIRMED THE ORDER OF TRIBUNAL. HENCE, THERE IS NOTHING LEFT IN THESE MISC. APPLICATIONS RATHER THE BENCH SHOULD IMPOSE COST ON THE REVENUE FOR WASTING VALUABLE TIME OF BENCH, ASSESSEE AND DEPARTMENT. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT HON BLE CALCUTTA HIGH COURT HAS ALREADY ADJUDICATED THE ISSUE ON MERITS AND CONFIRMED THE ORDER OF THE TRIBUNAL. WE ALSO FIND THAT THE ISSUE NOW RAISED IN MISC. APPLICATIONS WAS RAISED BEFORE THE HON BLE HIGH COURT AS IS EVIDENT FROM ABOVE PARA 4 OF PETITION RAISED BEFORE THE HON BLE HIGH COURT BY THE REVENUE WHERE THE SAME ALLEGATIONS WERE LEVELED. AS T HE HON BLE HIGH COURT HAS ALREADY DEALT WITH THE ISSUE, WE ARE OF THE VIEW THAT THERE IS NO NEED TO ADJUDICATE THE SAME. IN THESE MISC. APPLICATIONS REVENUE HAS NOT POINTED OUT ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. HENCE, THESE M ISC. APPLICATIONS OF REVENUE ARE 4 MA NO. 33 - 40 /K/201 3 KOLKATA PORT TRUST A. Y 200 3 - 0 4 TO 2005 - 06 DISMISSED. WE SHOULD IMPOSE COST BUT WE REFRAIN OURSELVES FOR IMPOSING THE SAME. MISC. APPLICATIONS OF REVENUE ARE DISMISSED. 5 . IN THE RESULT, MISC. APPLICATION S OF REVENUE ARE DISMISSED. 6. ORDER IS PRONOUNCED IN THE OPEN COURT . S D / - S D / - ( B. P. JAIN ) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 9 TH JUNE , 201 5 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT : DCIT/ACIT, CIR - 35, KOLKATA. 2 RESPONDENT KOLKATA PORT TRUST, 15, STRAND ROAD, KOLKATA - 700 001 3 . THE CIT(A ) , KOLKATA 4. CIT , KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR .