Park International, Kolkata V. ITO,WD-32(3), KOLKATA, Kolkata

MA 60/KOL/2016

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 5452 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 09-05-2016
• Court: TRIBUNAL
• Department Lawyers: RAJAT KUMAR KUREEL JCITSR
• Assessee Lawyers: MANJU LATA SHUKLA

Judgement Text

M.A.NO.60/K/2016 A/O ITA NO.153/K/2009 PARK INTERN ATIONAL - A.Y.2005- 06 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] M.A.NO.60/KOL/2016 (A/O ITA NO.153/KOL/2009) ASSESSMENT YEAR : 2005-06 PARK INTERNATIONAL -VERSUS- I.T.O., WARD-32(3), KOLKATA KOLKATA (PAN:AADFP 8469 R) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SMT. MANJU LATA SHUKLA, FCA FOR THE RESPONDENT: SHRI RAJAT KUMAR KUREEL, JCIT,S R.DR DATE OF HEARING : 05.08.2016. DATE OF PRONOUNCEMENT : 05.08.2016 ORDER PER N.V.VASUDEVAN, JM: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE U/S.254(2) OF THE INCOME TAX ACT, 1961 (ACT) PRAYING FOR RECTIFICATIO N OF CERTAIN APPARENT ERRORS IN THE ORDER DATED 4.3.2016 PASSED BY THIS TRIBUNAL IN THE AFORESAID APPEAL. 2. IT HAS BEEN STATED IN THE M.A. THAT IN THE AFOR ESAID APPEALS ITA NO.152 & 153/K/2009 FOR AY 2004-05 & 2005-06 TWO ISSUES WERE RAISED BY THE ASSESSEE IN AY 2004-05 VIZ., ISSUE OF DISALLOWANCE U/S.40A(3) OF T HE ACT AND WHETHER SALE PROCEEDS OF DEPB LICENSE ARE TO BE REGARDED AS BUSINESS PROF ITS OR INCOME FROM OTHER SOURCES. TWO ISSUES WERE RAISED IN AY 2005-06 VIZ., DISALLOW ANCE U/S.40A(3) OF THE ACT AND DISALLOWANCE U/S.40(A)(IA) OF THE ACT. THE TRIBUNA L PASSED AN ORDER DECIDING THOSE GROUNDS BY A COMMON ORDER DATED 25.6.2010. 3. THE ASSESSEE FILED M.A.NO.123 & 124/KOL/10 POIN TING OUT THAT THERE WERE CERTAIN APPARENT ERRORS IN THE ORDER OF THE TRIBUNAL IN SO FAR AS IT RELATES TO THE COMMON ISSUE M.A.NO.60/K/2016 A/O ITA NO.153/K/2009 PARK INTERN ATIONAL - A.Y.2005- 06 2 OF DISALLOWANCE U/S.40A(3) IN BOTH THE AFORESAID AY S. THE TRIBUNAL BY ITS ORDER DATED 17.1.2011 ALLOWED THE M.A. RECALLED THE ORDER DATED 4.3.2016 IN SO FAR AS IT RELATES TO GR.NO.1 I.E., THE ISSUE OF DISALLOWANCE U/S.40A(3) OF THE ACT. 4. THE APPEAL WAS AGAIN LISTED FOR HEARING ON 1.3. 2016 FOR THE LIMITED PURPOSE OF DECIDING GROUND NO.1 IN BOTH THE AYS. 2004-05 & 200 5-06 VIZ., DISALLOWANCE U/S.40A(3) OF THE ACT. THE TRIBUNAL PASSED AN ORDE R DATED 4.3.2016 IN WHICH IT DECIDED THE ISSUE OF DISALLOWANCE U/S.40(3) OF THE ACT AND ALSO PROCEEDED TO DECIDE THE ISSUE OF DISALLOWANCE U/S.40(A)(IA) OF THE ACT RAISED IN AY 2005-06 BY THE ASSESSEE. IN THIS M.A. IT HAS BEEN POINTED OUT THA T THE ISSUE OF DISALLOWANCE U/S.40(A)(IA) OF THE ACT ALREADY STOOD DECIDED IN T HE ORIGINAL ORDER DATED 25.6.2010 AND BY THE ORDER IN MA NO.123 & 124/KOL/10, THE TRIBUNA L WAS REQUIRED TO DECIDE ONLY ISSUE OF DISALLOWANCE U/S.40A(3) OF THE ACT FOR AY 2004-05 & 2005-06. IN THIS MA THE ASSESSEE HAS PRAYED THAT THE APPARENT ERROR IN THE ORDER OF THE TRIBUNAL SHOULD BE RECTIFIED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE CONTE NTIONS IN THE M.A. ARE FOUND TO BE CORRECT. THEREFORE THE ORDER DATED 4.3.2016 SUFFER S FROM AN ERROR APPARENT ON THE FACE OF THE RECORD IN AS MUCH AS AN ISSUE WHICH WAS NEVE R THE SUBJECT MATTER OF APPEALS WHICH WERE FIXED FOR HEARING AFRESH PURSUANT TO THE ORDER IN M.A.NO.123 & 124/KOL/10, WAS DECIDED BY THE TRIBUNAL. THE SAME IS RECTIFIED BY DELETING PARAGRAPH 6 & 7 OF THE ORDER DATED 4.3.2016 WHICH DEALT WITH DISALLOWANCE U/S.40(A)(IA) OF THE ACT FOR AY 2005-06. IT IS ORDERED ACCORDINGLY. 6. IN THE RESULT, THE M.A. IS ALLOWED. O RDER PRONOUNCED IN THE COURT ON 05.08.2016. SD/- SD/- [M.BALAGANESH ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 05.08.2016. [RG PS] M.A.NO.60/K/2016 A/O ITA NO.153/K/2009 PARK INTERN ATIONAL - A.Y.2005- 06 3 COPY OF THE ORDER FORWARDED TO: 1.PARK INTERNATIONAL, 42/1, SHAMSUL HUDA ROAD, KOLK ATA-700017. 2. .I.T.O., WARD-32(3), KOLKATA 3. CIT(A)-XIX, KOLKATA 4. CIT-XI, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES