M/S. ITC Ltd., Kolkata V. DCIT, Circle-8, Kolkata, Kolkata

MA 69/KOL/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3785 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 31-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 14A

Judgement Text

M.A. NO. 69 & 70/KOL/2014 (IN I.T.A. NO. 1339 & 1144/KOL./2012) ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER M.A. NO. 69 & 70/KOL/2014 (ARISING OUT OF I.T.A. NO. 1339 & 1144/KOL/ 2012) ASSESSMENT YEAR : 2008-2009 I.T.C. LIMITED,.................................... ......................................APPLICANT 37, J.L. NEHRU ROAD, KOLKATA-700 071 [PAN : AAACI 5950 L] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ..................RESPONDENT CIRCLE-8, KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, ROOM NO. 8, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI J.P. KHAITAN, SR. ADVOCATE, FOR THE APPLICANT SHRI N. JUNGIO, JCIT, FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : DECEMBER 04, 2015 DATE OF PRONOUNCING THE ORDER : DECEMBER 09, 2015 O R D E R PER SHRI P.M. JAGTAP :- BY THESE MISCELLANEOUS APPLICATIONS, THE ASSESSEE I S SEEKING RECTIFICATION OF THE THREE MISTAKES ALLEGED TO HAVE BEEN CREPT IN THE ORDER OF THE TRIBUNAL DATED 12.09.2014 PASSED IN ITA NOS. 1339/KOL/2012 AND 1144/KOL/2012. 2. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE HAS NOT PRESSED THE ISSUE RELATING TO THE FIRST MISTAKE ALLEGED TO HAVE BEEN CREPT IN THE ORDER OF THE TRIBUNAL WHILE DECIDING T HE GROUND IN RESPECT OF ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80-IA. M.A. NO. 69 & 70/KOL/2014 (IN I.T.A. NO. 1339 & 1144/KOL./2012) ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 6 3. AS REGARDS THE SECOND MISTAKE ALLEGEDLY CREPT IN THE ORDER OF THE TRIBUNAL WHILE DECIDING THE ISSUE RELATING TO DEDUC TION UNDER SECTION 80IC, THE LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE RELEVANT PORTION ON PAGE NO. 24 OF THE ASSESSMENT ORDER TO P OINT OUT THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IC WA S DISALLOWED BY THE ASSESSING OFFICER ON DIFFERENT GROUNDS AND NOT ON T HE GROUND THAT THE INCOME FROM THE ELIGIBLE UNDERTAKING WAS NOT INCLUD ED IN THE GROSS TOTAL INCOME OF THE ASSESSEE. HE THEN INVITED OUR ATTENTI ON TO THE RELEVANT PORTION OF THE TRIBUNALS ORDER ON PAGE NO. 18 AND SUBMITTED THAT THE TRIBUNAL, HOWEVER, HAS RESTORED THE ISSUE RELATING TO THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IC TO THE LD. CIT(APP EALS) WITH A DIRECTION TO VERIFY AS TO WHETHER THE INCOME DERIVED BY THE A SSESSEE FROM THE ELIGIBLE UNDERTAKING IS INCLUDED IN THE GROSS TOTAL INCOME OF THE ASSESSEE OR NOT. HE CONTENDED THAT THE ORDER OF THE TRIBUNAL GIVING SUCH DIRECTION THUS SUFFERS FROM A MISTAKE APPARENT FROM RECORD AS THIS ISSUE DOES NOT ARISE AT ALL FROM THE ORDER OF THE ASSESSING OFFICE R. 4. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THE FINDINGS/OBSERVATIONS RECORDED BY THE ASSESSING OFF ICER ON PAGE NO. 24 OF THE ASSESSMENT ORDER CLEARLY SHOW THAT THE ASSESSEE S CLAIM FOR DEDUCTION UNDER SECTION 80IC WAS DISALLOWED BY HIM, INTER ALIA, ON THE GROUND THAT THE NOTIONAL PROFIT WAS NEVER INCLUDED IN THE CREDI T SIDE OF THE PROFIT & LOSS ACCOUNT. HE CONTENDED THAT THERE IS THUS NO MI STAKE IN THE ORDER OF THE TRIBUNAL IN GIVING A DIRECTION TO THE LD. CIT(A PPEALS) TO VERIFY THIS ASPECT AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD AND IF THE SAID PROFIT IS INCLUDED IN THE GROSS TOTAL INCO ME OF THE ASSESSEE AS CLAIMED, ASSESSEE CANNOT BE SAID TO HAVE ANY GRIEVA NCE ON THIS ISSUE AS THE LD. CIT(APPEALS) IS BOUND TO GIVE AN OPPORTUNIT Y TO THE ASSESSEE TO ESTABLISH THE SAME AS PER THE DIRECTION OF THE TRIB UNAL. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL AVAILABLE ON RECORD, WE ARE UNABLE TO AGRE E WITH THE LD. COUNSEL M.A. NO. 69 & 70/KOL/2014 (IN I.T.A. NO. 1339 & 1144/KOL./2012) ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 6 FOR THE ASSESSEE THAT THERE IS A MISTAKE APPARENT F ROM RECORD IN THE ORDER OF THE TRIBUNAL WHILE GIVING A DIRECTION TO THE LD. CIT(APPEALS) TO VERIFY AS TO WHETHER THE PROFIT IN QUESTION OF THE ELIGIB LE UNDERTAKING IS INCLUDED IN THE GROSS TOTAL INCOME OF THE ASSESSEE. AS RIGHTLY POINTED OUT BY THE LD. D.R., THE RELEVANT FINDINGS/ OBSERVATION S RECORDED BY THE ASSESSING OFFICER ON PAGE NO. 24 OF HIS ORDER CLEAR LY SHOWS THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IC WA S DISALLOWED BY HIM, INTER ALIA, ON THE BASIS OF CONDITION LAID DOWN IN SECTION 80A B AND A FINDING WAS RECORDED BY HIM IN THIS CONTEXT THAT TH E SAID CONDITION WAS NOT FULFILLED BY THE ASSESSEE IN THE SENSE THAT THE NOTIONAL PROFIT HAD NEVER BEEN INCLUDED IN THE CREDIT SIDE OF THE PROFI T & LOSS ACCOUNT. IN OUR OPINION, IT, THEREFORE, CANNOT BE SAID THAT THIS IS SUE DOES NOT ARISE FROM THE ORDER OF THE ASSESSING OFFICER AND THERE IS A M ISTAKE IN THE ORDER OF THE TRIBUNAL IN GIVING DIRECTION TO THE LD. CIT(APP EALS) TO VERIFY THE SAME, AS ALLEGED BY THE ASSESSEE. MOREOVER, AS RIGHTLY PO INTED OUT BY THE LD. D.R., THE LD. CIT(APPEALS) IS BOUND TO GIVE DUE OPP ORTUNITY TO THE ASSESESE OF BEING HEARD BEFORE DECIDING THIS ISSUE AS PER TH E DIRECTION OF THE TRIBUNAL AND IF THE PROFIT IN QUESTION IS ALREADY I NCLUDED IN THE GROSS TOTAL INCOME OF THE ASSESSEE AS CLAIMED, THE ASSESS EE CANNOT BE SAID TO HAVE ANY MATERIAL GRIEVANCE ON THIS ISSUE. WE, THER EFORE, HOLD THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL WHILE DE CIDING THE ISSUE RELATING TO THE ASSESSEES CLAIM FOR DEDUCTION UNDE R SECTION 80IC AS ALLEGED BY THE ASSESSEE. 6. AS REGARDS THE THIRD MISTAKE ALLEGEDLY CREPT IN THE ORDER OF THE TRIBUNAL WHILE DECIDING THE ISSUE RELATING TO THE D ISALLOWANCE MADE UNDER SECTION 14A READ WITH RULE 8D, THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE DURING THE COURSE OF HEARING BEFORE THE TRIBUNAL HAD SOUGH T TO RAISE THE ISSUE RELATING TO THE ABSENCE OF OBJECTIVE SATISFACTION R ECORDED IN THE ORDER OF THE ASSESSING OFFICER BEFORE APPLYING RULE 8D READ WITH THE PROVISION OF SECTION 14A OF THE ACT. HE SUBMITTED THAT THE HONB LE MEMBERS OF THE M.A. NO. 69 & 70/KOL/2014 (IN I.T.A. NO. 1339 & 1144/KOL./2012) ASSESSMENT YEAR: 2008-2009 PAGE 4 OF 6 TRIBUNAL, HOWEVER, EXPRESSED THE VIEW THAT THEY COU LD NOT INTERFERE WITH THE SATISFACTION FORMED BY THE ASSESSING OFFICER AN D ACCORDINGLY, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WAS NOT A LLOWED TO RAISE ANY FURTHER ARGUMENT ON THIS ISSUE. HE SUBMITTED THAT T HE TRIBUNAL IN ITS ORDER DATED 12.09.2014 (SUPRA) HAS GIVEN A FINDING TO THE EFFECT ON PAGE NO. 29 THAT SUCH SATISFACTION ON OBJECTIVE BASIS WA S RECORDED BY THE ASSESSING OFFICER. HE HAS CONTENDED THAT THIS FINDI NG THUS HAS BEEN RECORDED BY THE TRIBUNAL WITHOUT GIVING THE ASSESSE E AN OPPORTUNITY OF BEING HEARD AND THERE IS A MISTAKE APPARENT FROM RE CORD IN THE ORDER OF THE TRIBUNAL. IN SUPPORT OF THIS CONTENTION, HE ALS O FILED AN AFFIDAVIT OF THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE S HRI RAHUL KRISHNA MITRA, WHO APPEARED ON BEHALF OF THE ASSESESE BEFOR E THE TRIBUNAL TO ARGUE THE MATTER. 7. THE LD. D.R. SUBMITTED THAT THERE IS NOTHING BRO UGHT ON RECORD BY THE ASSESSEE TO SHOW THAT ANY SUCH VIEW WAS EXPRESS ED BY THE TRIBUNAL DURING THE COURSE OF HEARING THAT IT COULD NOT INTE RFERE WITH THE SATISFACTION FOUND BY THE ASSESSING OFFICER AND IN THE ABSENCE OF THE SAME, THE AFFIDAVIT OF THE LD. AUTHORIZED REPRESENT ATIVE FILED BY THE ASSESSEE CANNOT BE ASSIGNED ANY EVIDENTIARY VALUE. HE ALSO INVITED OUR ATTENTION TO THE RELEVANT OBSERVATIONS OF THE TRIBU NAL RECORDED ON PAGES 28 & 29 OF ITS ORDER TO POINT OUT THAT THE ISSUE RE LATING TO THE SATISFACTION TO BE ARRIVED AT BY THE ASSESSING OFFICER ON OBJECT IVE BASIS WAS NOT ONLY CONSIDERED AND DISCUSSED BY THE TRIBUNAL, BUT THE S AME WAS DECIDED BY RECORDING A VERY CLEAR-CUT FINDING TO THE EFFECT TH AT SUCH SATISFACTION WAS DULY RECORDED BY THE ASSESSING OFFICER. HE CONTENDE D THAT THE ORDER OF THE TRIBUNAL THUS CANNOT BE SAID TO HAVE SUFFERED F ROM ANY MISTAKE AS ALLEGED BY THE ASSESSEE. 8. WE HAVE CONSIDERED THE RIVAL SUBMISISONS AND ALS O PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY S UBMITTED BY THE LD. D.R., THERE IS NOTHING AVAILABLE ON RECORD TO SHOW THAT A NY VIEW WAS EXPRESSED BY THE TRIBUNAL TO THE EFFECT THAT IT COULD NOT INT ERFERE WITH THE M.A. NO. 69 & 70/KOL/2014 (IN I.T.A. NO. 1339 & 1144/KOL./2012) ASSESSMENT YEAR: 2008-2009 PAGE 5 OF 6 SATISFACTION FORMED BY THE ASSESSING OFFICER AND TH AT THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WAS PREVENTED FROM R AISING ANY FURTHER ARGUMENTS ON THIS ASPECT OF THE MATTER. THERE IS TH US NOTHING ON RECORD TO SUPPORT OR SUBSTANTIATE THE AFFIDAVIT OF SHRI RAHUL KUMAR MITRA FILED BY THE ASSESSEE. ON THE CONTRARY, THE RELEVANT OBSERVA TIONS/ FINDINGS RECORDED BY THE TRIBUNAL IN ITS ORDER CLEARLY SHOW THAT HIS ASPECT IS NOT ONLY CONSIDERED AND DISCUSSED BY THE TRIBUNAL, BUT A CLEAR-CUT FINDING HAS BEEN RECORDED THEREON TO THE EFFECT THAT THE SATISF ACTION ON OBJECTIVE BASIS AS REQUIRED FOR MAKING ANY DISALLOWANCE UNDER SECTION 14A WAS ARRIVED AT BY THE ASSESSING OFFICER BY A CATEGORICA L RECORDING THAT HE WAS NOT SATISFIED WITH THE CORRECTNESS OF THE DISALLOW ANCE MADE BY THE ASSESESE WITH REFERENCE TO THE ACCOUNTS, AS THE ASS ESESE HAD NOT MAINTAINED ANY SEPARATE DETAILS OR ACCOUNTS IN RESP ECT OF THE INCURRENCE OF THE EXPENDITURE. THE AFFIDAVIT OF ITS AUTHORIZED REPRESENTATIVE FILED BY THE ASSESSEE THUS IS NOT ONLY UNSUPPORTED BY ANYTHI NG ON RECORD BUT THE SAME IS CONTRARY TO THE FINDINGS/ OBSERVATIONS SPEC IFICALLY RECORDED BY THE TRIBUNAL IN ITS ORDER. IN OUR OPINION, THE SAID AFFIDAVIT, THEREFORE, CANNOT BE RELIED UPON TO SAY THAT THERE IS A MISTAK E IN THE ORDER OF THE TRIBUNAL AS ALLEGED BY THE ASSESSEE. MOREOVER, A SP ECIFIC VIEW HAS BEEN TAKEN BY THE TRIBUNAL IN ITS ORDER ON THIS ASPECT O F THE MATTER AND ANY INTERFERENCE WITH THE SAME WILL AMOUNT TO REVIEW, W HICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. AS SUC H CONSIDERING ALL THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AS ALLEGED BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATIONS. IN THAT VIEW OF THE MATTER, WE DISMISS THESE MISCELLANEOUS APPLICATIONS FILED BY T HE ASSESSEE. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 09, 2015. SD/- SD/- (MAHAVIR SINGH) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 9 TH DAY OF DECEMBER, 2015 M.A. NO. 69 & 70/KOL/2014 (IN I.T.A. NO. 1339 & 1144/KOL./2012) ASSESSMENT YEAR: 2008-2009 PAGE 6 OF 6 COPIES TO : (1) I.T.C. LIMITED, 37, J.L. NEHRU ROAD, KOLKATA-700 071 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-8, KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, ROOM NO. 8, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME-TAX (APPEALS)- VIII, K OLKATA (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.