DCIT, CEN CIR-XXI, KOLKATA, Kolkata V. M/s Bose Estate Pvt. Ltd., Kolkata

MA 56/KOL/2015

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5428 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 22-06-2015
• Court: TRIBUNAL
• Assessee Lawyers: M SATNALIWALA
• Keywords: Audit objection; Tax effect

Judgement Text

M.A.NO.56/KOL/2015(A/O ITA NO.1606/KOL/2014)-M/S.BO SE ESTATE PVT.LTD.. A.Y.2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] M.A.NO.56/KOL/2015 (A/O ITA NO.1606/KOL/2014) ASSESSMENT YEAR : 2006-07 D.C.I.T., CENTRAL CIRCLE-XXI, -VERSUS- M/.S. BOSE ESTATE PVT. LTD. KOLKATA KOLKATA (PAN:AABCB 1204H) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI SALLONG YADEN, ADDL. CI T(DR) FOR THE RESPONDENT: SHRI M.SATNALIWALA DATE OF HEARING : 03.03.2017 DATE OF PRONOUNCEMENT : 03.03.2017. ORDER PER N.V.VASUDEVAN, JM: THE REVENUE HAS FILED THE AFORESAID APPLICATION U/S .254(2) OF THE INCOME TAX ACT, 1961 (ACT) PRAYING FOR AN ORDER RECALLING THE ORDER DATED 27.11.2014 PASSED BY THE TRIBUNAL DISMISSING THE APPEAL OF THE REVENUE O N THE GROUND THAT THE TAX EFFECT INVOLVED IN THE APPEAL OF THE REVENUE WAS LESS THAN RS.4 LACS AND THEREFORE IN THE LIGHT OF THE CBDT INSTRUCTION NO.5/2014 DATED 10.7.2014 W HICH PROVIDES THAT THE TAX EFFECT FOR APPEALS TO BE FILED BEFORE TRIBUNAL SHOULD BE R S.4 LACS AND ABOVE, THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE BEING CONTRARY TO THE C BDT INSTRUCTION. 2. IN THIS MA, THE REVENUE HAS PUT FORTH A PLEA THAT THERE WAS A REVENUE AUDIT OBJECTION WHICH WAS ACCEPTED BY THE AO AND THEREFOR E THE PRESENT APPEAL FILED BY THE REVENUE FALLS WITHIN THE EXCEPTION CARVED OUT IN TH E CBDT INSTRUCTION REFERRED TO ABOVE AND THEREFORE EVEN THOUGH THE TAX EFFECT IS L ESS THAN RS.4 LACS, THE APPEAL OF THE REVENUE IS MAINTAINABLE. THE REVENUE HAS PRAYED FO R RECALLING THE ORDER DATED 27.11.2014 THROUGH THIS MA. M.A.NO.56/KOL/2015(A/O ITA NO.1606/KOL/2014)-M/S.BO SE ESTATE PVT.LTD.. A.Y.2006-07 2 3. AT THE TIME OF HEARING THE LEARNED DR PRODUC ED COPY OF THE REVENUE AUDIT OBJECTION. PERUSAL OF THE SAME REVEALS THAT THE SA ME IS WITH REFERENCE TO COMPUTATION OF INCOME UNDER THE HEAD CAPITAL GAINS. THE APPE AL BY THE REVENUE AROSE OUT OF AN ORDER PASSED BY THE AO U/S.154 OF THE ACT WHEREBY T HE AO DISALLOWED THE CLAIM OF THE ASSESSEE U/S.24(B) OF THE ACT ON ACCOUNT INTERE ST PAID ON CAPITAL BORROWED TO ACQUIRE THE PROPERTY, WHILE COMPUTING INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. IT IS THUS CLEAR THAT THE PRESENT MA HA S BEEN FILED ON AN ERRONEOUS ASSUMPTION THAT THE REVENUE AUDIT OBJECTION RELATES TO THE ISSUE WHICH WAS SUBJECT MATTER OF APPEAL BEFORE THE TRIBUNAL. THE LEARNED DR COULD NOT REBUT THIS POSITION. THE MA IS THEREFORE DISMISSED AS ONE WITHOUT ANY ME RIT. 4. IN THE RESULT, THE MA IS DISMISSED. O RDER PRONOUNCED IN THE COURT ON 03.03.2017. SD/- SD/- [M.BALAGANESH ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 03.03.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. BOSE ESTATE PVT. LTD., 19, CAMAC STREET, KOL KATA-700017. 2. .D.C.I.T., CENTRAL CIRCLE-XXI, KOLKATA 3. C.I.T.(A)-CENTRAL-II, KOLKATA 4. C.I.T .- CENTRAL-II, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES