Sri Rikhab Chand Jain, Kolkata V. DCIT, Circle - 36, KOLKATA, Kolkata

MA 38/KOL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0189 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 12-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C J SINGH JCIT LD
• Assessee Lawyers: S M SURANA LD

Judgement Text

1 MA. NO. 38/KOL/2018 SRI RIKHAB CHAND JAIN IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH , KOLKATA [BEFORE SHRI A.T. VARKEY , J M & DR. SHRI A.L.SAINI,AM ] M .A NO . 38/KOL/2018 A/O C.O NO. 47/KOL/2015 ( ITA NO. 1129/KOL/2015 A.Y 2011 - 12) SRI RIKHAB CHAND JAIN PAN: AEYPJ 0493A VS. D.C.I.T, CIR CLE - 36 , KOLKATA APP LICANT RESPONDENT DATE OF HEARING 30 . 1 1 .2018 DATE OF PRONOUNCEMENT - 12 - 2018 FOR THE APPELLANT SHRI S.M SURANA, ADVOCATE, LD.AR FOR THE RESPONDENT SHRI C.J. SINGH, JCIT, LD. SR. D R ORDER PER DR. A.L.SAINI, A.M .: BY WAY OF THE CAPTIONED APPLICATION , THE ASSESSE E HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT ON RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT ( IN SHORT ACT) HAS BEEN CREPT IN THE ORDER OF THE TRIBUNAL DATED 22 - 12 - 2017. 2. THE CASE OF THE ASSESSE IN THIS MISC. APPLICATION IS THAT REPAYMENT OF BANK LOAN TO THE TUNE OF RS.97,21 , 514/ - IS MADE OUT OF OWN FUNDS AVAILABLE IN WIND MILL, AS EXPLAINED BELOW: - RIKHAB CHAND JAIN ASSESSMENT YEAR 2011 - 12 C/O NO. 471K12015 DISALLOWANCE OF PROPO RTIONATE INTEREST BY THE AO ON WIND MILL UNIT NO. I CASH FLOW STATEMENT PREPARED FROM THE ORDER OF LD CIT(A): - AS PER PAGE 9 OF THE ASSESSMENT ORDER OWN FUNDS AVAILABLE WITH THE ASSESSEE A RS.19,12,18,428/ - Y 2011 - 12 PAGE 9 OF AO'S ORDER AND CI T(A)'S ORDER PAGE 7 AMOUNT DULY INVESTED IN TT SHARES (AS RS. 16,12,00,000/ - PER CIT(A);S ORDER TAKEN NOTE BY ITAT AT PAGE 15 BALANCE OWN FUND RS. 3,00,18,428/ - LESS: OWN FUNDS INVESTED IN UNIT NO. I I AS PER RS. 1,50,18,428/ - 2 MA. NO. 38/KOL/2018 SRI RIKHAB CHAND JAIN CIT(A) (PAGE 7) OWN FUNDS AVAILABLE AS PER CIT(A) PAGE RS. 1,50,18,428/ - 7 FOR UNIT I ADD: CURRENT YEARS CASH SURPLUS AS PER CIT(A) RS. 17,50,000/ - PAGE 7 PARA 4.1.4 TOTAL OWN FUNDS AVAILABLE IN WIND MILL RS. 1,67,68,428/ - UNIT I TOTAL REPAYMENT OF BANK LOAN AFTER 31.3.2010 BUT BEFORE 31.3.2011 RS. RS. 97,21,514/ - 75,00,792/ - + INTEREST RS. 22,20,7221 - HENCE THE REPAYMENT OF LOAN WAS OUT OF OWN FUNDS AND NOT OUT OF BORROWED FUND. THEREFORE, TRIBUNAL ERRED IN NOT TAKING INTO ACCOUNT THE OWN FUNDS AVAILABLE IN WIND MILL, HENCE, THERE IS AN APPARENT MISTAKE, WHICH NEEDS TO BE RECTIFIED. 3. WE HAVE HEARD THE LD.DR FOR THE REVENUE. WE ARE OF THE VIEW THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THERE IS A MISTAKE APPARENT O N THE BASIS OF RECORD OF THE TRIBUNAL. WE ARE ALSO OF THE VIEW THAT IT WOULD BE IN THE INTEREST OF JUSTICE THAT THE ORDER OF THE TRIBUNAL DT. 22 - 12 - 2017, IN SO FAR AS IT RELATES TO C.O NO. 1 VIDE CROSS OBJECTION NO. 47/KOL/2015 (ARISING OUT OF ITA NO. 1 129/KOL/2015 A.Y 2011 - 12) OF THE ASSESSE IS CONCERNED SHOULD BE RECALLED. WE ACCORDINGLY RECALL THE ORDER DT. 22 - 12 - 2017 IN SO FAR AS IT RELATES TO CROSS OBJECTION NO. 47/KOL/2015 AS MENTIONED ABOVE . REGISTRY IS DIRECTED TO FIX THE CROSS OBJECTION NO. 1 I N C.O NO. 47/KOL/2015 (ARISING OUT OF ITA NO. 1129/KOL/2015 A.Y 2011 - 12) OF THE ASSESSE E FOR HEARING BY ISSUING NOTICES TO THE RESPECTIVE PARTIES. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESS E E IS ALLOWED. ORDER PRONOU NCED IN THE OPEN COURT ON - 12 - 2018 A.T. VARKEY DR. A.L.SAINI JUDICIAL MEMBER ACCOUNTANT MEMBER DATED - 12 - 2018 SD/ 3 MA. NO. 38/KOL/2018 SRI RIKHAB CHAND JAIN PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APP LICANT / ASSESSEE: SRI RIKHAB CHAND JAIN C/O M/S. T T LTD, 2 ND FLOOR, 10 EZZIE MANSION, POLLOCK ST., 2 ND FLOOR, KOLKATA - 1. 2 RESPONDENT/ REVENUE: THE DCIT, CIR - 36, KOLKATA , AAYKAR BHAWAN POORVA , 8 TH FLOOR, 110 SHANTIPALLY, KOLKATA - 107. 3. CIT, 4. CIT(A), KOLKATA 5. DR, GUWAHATI BENCHES, KOLKATA **PP/SPS TRUE COPY BY B Y ORDER ASSISTANT REGISTRAR ITAT KOLKATA