M/s. Progressive Stock Management Co. Ltd., Kolkata V. ITO, Ward - 1(2), Kolkata, Kolkata

MA 64/KOL/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8149 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 20-07-2011
• Court: TRIBUNAL
• Department Lawyers: D ROY
• Assessee Lawyers: P K HIMMANT SINGHKA
• Keywords: Depreciation

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. . ! ! ! !. .. . , '# SHRI C.D.RAO, ACCOUNTANT MEMBER $ $ $ $ / M.A.NO.64/KOL/2011 A/O ITA NO . 1487/KOL/2006 %& '(/ ASSESSMENT YEAR : 2003-04 (*+ / APPELLANT ) M/S.PROGRESSIVE STOCK MANAGEMENT CO.LTD., KOLKATA (PAN: AABCP 5590 J) - % - - VERSUS - . (-.*+/ RESPONDENT ) I.T.O., WARD-1(2), KOLKATA *+ / 0 '/ FOR THE APPELLANT: SHRI P.K.HIMMANT SINGHKA -.*+ / 0 '/ FOR THE RESPONDENT: SHRI D.ROY 1%2 / !# /DATE OF HEARING : 16.03.2012 3' / !# /DATE OF PRONOUNCEMENT : 13.04.2012. '4 / ORDER ( (( ( . .. . ! ! ! !. .. . ) )) ), , , , '# PER SHRI C.D.RAO, AM THE ABOVE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE TO RECALL THE ORDER OF THE TRIBUNAL DATED 05.10.2007 VIDE ITA NO.1487/KOL/2006 PERTAINING TO A.YR. .2003-04. 2. BY THIS MISCELLANEOUS APPLICATION ASSESSEE WANT S TO RECALL ORDER PASSED BY TRIBUNAL DATED 5.10.2007 IN ITA NO.1487/KOL/2006 BY POINTING OUT THAT 1. THE RESPONDENT COMPANY IS IN THE BUSINESS OF GRA NTING LOAN AND ADVANCES UNDER HIRE PURCHASE FINANCE. 2 HONBLE C BRANCH OF ITAT, KOLKATA PASSED ITS ORDE R ON 05-10-2007 AGAINST DEPARTMENTAL APPEAL NO. ITA/1487/KOL/2006 ASST. YEA R 2003-04 OBSERVED INADVERTENTLY AT PARA-7 OF ORDER FROM THE RECORD WE FIND THAT THE ASSESSEE IS ENGAG ED IN THE BUSINESS OF PROVIDING ASSETS ON HIRE PURCHASE SYSTEM AND HAS RE CEIVED THE PRINCIPAL AS WELL AS INTEREST UPTO SEPTEMBER,2002. WHEREAS FACTUALLY THE RESPONDENT COMPANY HAD NEITHE R PROVIDED ANY ASSETS NOR CLAIMED AS SUCH IN THE AUDITED ACCOUNTS. WE HAD PRO VIDED LOAN TO THE BORROWER WHICH THEY HAD USED IN ACQUIRING THE ASSET. WE NEITHER PU RCHASE NOR GIVE ANY ASSET IN THE ORDINARY COURSE OF BUSINESS THE PROFIT & LOSS A/C T OO DOES NOT REFLECT ANY SUCH PURCHASE OF ASSET AND SUCH ASSETS DID NOT APPEAR IN THE CORRESPONDING AUDITED BALANCE SHEET AS WELL. LD AO LETTER NO. 42-43 DT. 12-04 20 07 ADDRESSED TO ASST. REGISTRAR, ITAT, KOLKATA, VIDE ANNEXURE A ATTACHED WITH SAID LETTER ADMITTED THE FINANCE RS. 17,16,500 WERE GRANTED TO THREE PARTIES ON RESPECTI VE DATES AND INTERE WERE EARNED ON THOSE FINANCING. THE RESPONDENT COMPANY NEVER PROVIDED ANY ASSET ON HIRE PURCHASE .THE COMPANY ALL ALONG WAS ENGAGED IN PROVIDING FINANCE TO ITS CUSTO MERS FOR ACQUIRING THE ASSET AT A MUTUALLY AGREED RATE OF INTEREST FOR A SPECIFIC TEN URE AS PER AGREEMENT EXECUTED WITH THE BORROWER. THE COMPANY RECOVERS PRINCIPAL AND IN TEREST AS EQUAL MONTHLY INSTALLMENT (EMI) AGAINST REPAYMENT OF LENT AMOUNT .THE INTEREST INCOME WAS DULY REFLECTED IN PROFIT & LOSS A/C AND THE PRINCIPAL AM OUNT OF REPAYMENT HAD REDUCED THE OUTSTANDING FINANCED AMOUNT OF THE RESPECTIVE CUSTO MERS. AUDITED P/L A/C FOR THE YEAR 31-03-2003 REFLECTED INTEREST INCOME RS.25.29. 021 AND CORRESPONDING BALANCE SHEET REFLECTED OUTSTANDING LOAN AMOUNT RS.95,19,57 0 AS INSTALLMENT RECEIVABLE UNDER SCHEDULE 4 CURRENT ASSETS, LOANS & ADVANCES. THE FI XED ASSETS DO NOT INCLUDE ANY HIRE PURCHASE ASSETS. NOTES OF ACCOUNTS AT SCHEDULE 10 EXPLAINS THAT- THE STOCK OF HIRE PURCHASE REPRESENTS INSTALLMENT RECEIVABLE LESS FUT URE INTEREST RECEIVABLE. THE COMPANY DIDNT CLAIM DEPRECIATION SINCE THE ASSET I S NOT OWNED BY THE COMPANY AND THE SAME DOES NOT APPEAR ANYWHERE AS AN ASSET IN TH E BALANCE SHEET. IN HIRE PURCHASE FINANCE BUSINESS THE ASSET IS NEVER GIVEN BY THE FI NANCER. THE FINANCER PROVIDES FINANCE TO CUSTOMERS FOR PURCHASE OF ASSET AND EARN INTEREST NOT RENT. HONBLE TRIBUNAL DIDNT APPRECIATE THE FACTS IN PRO PER PROSPECTIVE AND COMMITTED AN ERROR IN ARRIVING CONCLUSION. HONBLE TRIBUNAL ARRI VED AT ERRONEOUS CONCLUSION UPON APPRECIATION OF WRONG FACTS. IN VIEW OF WRONG APPRE CIATION OF FACTS INADVERTENTLY, THE ASSESSEE COMPANY SUFFERS IRREPARABLE LOSS AND INJUR Y, THE RESPONDENT HUMBLY PRAYS THAT YOUR HONOUR BE GRACIOUSLY PLEASED TO RECTIFY T HE APPARENT MISTAKE FROM RECORD AND RECALL THE ORDER DT 05-10-2007 PASSED BY THE TR IBUNAL AGAINST THE APPEAL NO ITA/ 1487/KOL/2006 ASST. YEAR 2003-04. 2.1. AT THE TIME OF HEARING THE LD. COUNSEL APPEAR ING ON BEHALF OF ASSESSEE HAS FURTHER POINTED OUT THAT THE TRIBUNAL WHILE GIVING ITS FINDINGS AT PARA NO.7 OF ITS ORDER HAS OBSERVED THAT FROM THE RECORD WE FIND THAT THE ASSESSEE IS ENGAG ED IN THE BUSINESS OF PROVIDING ASSETS ON HIRE PURCHASE SYSTE M. AND FURTHER CONTENDED THAT THIS FACT HAS NOT ARISEN OUT THE MATERIAL AVAILABLE ON RECORD. THEREFORE HE REQUESTED TO RECALL ORDER OF THE TRIBU NAL WHICH IS BASED ON FACT WHICH IS NOT RECORD. 3 3. ON THE OTHER HAND, THE LD. DR APPEARING ON BEHAL F OF REVENUE HAS POINTED OUT THAT IN THE ASSESSMENT ORDER AO HAS MENTIONED THAT THE ASSESSEE IS CARRYING ON BUSINESS OF HIRE PURCHASE FINANCING AS A NBFC. THE INCOME OF ASSESSEE MAINLY CONSISTED OF HIRE PURCHASE MANAGEMENT FEES AND INTE REST ON ADVANCES/LOANS PROVIDED FOR HIRE PURCHASES THEREFORE HE SUBMITTED THAT THE FACT NARRATED BY THE TRIBUNAL IS CORRECT. 4. IN THE REBUTTAL BY REFERRING TO PAPER BOOK FILED ORIGINALLY IN ITA NO.1487/KOL/2006 ANNEXURE-I WHICH CONSISTS OF FINAN CES MADE BY ASSESSEE TO THREE PARTIES AMOUNTING TO RS.17,16,500/-. HE FURTHER BY REFERRING TO THE ACCOUNTS OF ASSESSEE WHICH WAS PLACED AT PAGE NOS. 1 TO 9 OF TH E PAPER BOOK SUBMITTED THAT ASSESSEE HAS NEVER CONDUCTED ANY HIRE PURCHASE BUSI NESS AS MENTIONED BY AO. THEREFORE HE CONTENDED THAT ASSESSEE IS ONLY ENGAGE D IN THE BUSINESS OF GIVING ADVANCES AND LOANS AND CALCULATION OF INTEREST. THE ASSESSEE IS NOT MADE LIABLE FOR THE MISTAKE COMMITTED BY AO IN THE ASSESSMENT ORDER. HE CONTENDED THAT THIS WILL TANTAMOUNT TO A MISTAKE APPARENT FORM RECORD. HENCE HE REQUESTED TO RECALL THE SAME. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF MATERIALS AVAILABLE ON RECORD, KEEPING IN VIEW OF THE FACT TH AT THERE IS A CONFLICT IN THE FACTS BASED ON WHICH THE TRIBUNAL HAS DECIDED THE ISSUE, IN OUR CONSIDERED OPINION, THIS WILL CONSTITUTE A MISTAKE APPARENT FROM RECORD AS DEFINE D U/S 254(2) OF THE I.T.ACT. THEREFORE IN THE INTEREST OF JUSTICE WE RECALL OUR ORDER DATED 05.10.2007 FOR FRESH HEARING. THE REGISTRY IS DIRECTED TO FIX THE CASE F OR HEARING IN DUE COURSE. 6. IN THE RESULT THE MISCELLANEOUS APPLICATION OF A SSESSEE IS ALLOWED ORDER PRONOUNCED IN THE COURT ON 13.04.2012. SD/- SD/- , , , , MAHAVIR SINGH, JUDICIAL MEMBER . .. . ! ! ! !. .. . , , , , '# '# '# '# , C.D.RAO, ACCOUNTANT MEMBER. ( (( (!# !# !# !#) )) ) DATE: 13.04.2012. R.G.(.P.S.) 4 '4 / -5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1. M/S.PROGRESSIVE STOCK MANAGEMENT CO.LTD., 46, B.B.G ANGULY STREET, KOLKATA-12. 2 I.T.O., WARD-1(2), KOLKATA 3. THE CIT-I, KOLKATA, 4. THE CIT(A)-I, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA .5 -/ TRUE COPY, '4%1/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES