M/s. Ventex Trade (P) Ltd., Kolkata V. ITO, Ward - 5(4), Kolkata, Kolkata

MA 74/KOL/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9143 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 25-08-2011
• Court: TRIBUNAL
• Department Lawyers: B K DAS LD
• Assessee Lawyers: SUBASH AGARWAL LD
• Keywords: Business income; Opportunity of being heard

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH : KOLKATA [ .., ! ' 1$%, ] [BEFORE HONBLE SHRI C.D. RAO, AM & HONBLE SHRI GEORGE MATHAN, JM && % ' /M.A. NO. 74/KOL/201 1 [IN ITA. NO.1440/KOL/2009] ASSESSMENT YEAR: 2005-06 M/S. VENTEX TRADE (P) LTD VS. I .T.O, WARD 5(4), KOLKATA PAN: AAACV 8556H [ /APPLICANT ] [*+$,/ RESPONDENT ] /APPLICANT BY : SHRI SUBASH AGARWAL, ADVOCATE, LD.AR *+$, / RESPONDENT BY : SHRI B.K. DAS, LD.DR .%/ 0 /DATE OF HEARING : 21/09/2012 12 0 /DATE OF PRONOUNCEMENT: 21/09/2012 3 /ORDER .., SHRI C.D RAO, ACCOUNTANT MEMBER THIS IS A MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE AGAINST THE ORDER OF THE TRIBUNAL IN ITA NO.1440/KOL/ 2009 DATED 4-02-2011 FOR THE AS SESSMENT YEAR.2005-06 2. SHRI SUBASH AGARWAL, ADVOCATE, LEARNED .AR REPRE SENTED ON BEHALF OF THE ASSESSEE AND SHRI B.K.DAS , LEARNED SR. DR REPRESENTED ON BEHALF OF THE REVENUE. 3. IN THE MISC. APPLICATION THE ASESSEE HAS STATE D AS FOLLOWS :- 3.1 THIS MISCELLANEOUS APPLICATION U/S. 254(2) OF T HE I.T ACT IS DIRECTED AGAINST THE ORDER OF I.T.A.T UNDER APPEAL 1440/KOL/2009 DAT ED 04.02.2011 IN RESPECT OF THE ASSESSMENT YEAR 2005-06 WHEREIN CERTAIN MISTAKES/ER RORS HAVE CREPT IN WHILE DECIDING THE ISSUE AND FINDING THEREOF. 3.2 THAT IN RESPECT OF THE INCOME FROM OTHER SOURCE MAINLY DERIVES FROM INTEREST FROM LOAN TREATED AS BUSINESS INCOME AND NOT ALLOW ING THE SET OFF FROM THE SPECULATION BUSINESS INCOME. 3.3 THAT IN COURSE OF ASSESSMENT PROCEEDINGS THE AS SESSEE FILED THE COMPUTATION ON INCOME WHEREAS IT IS SHOWN INCOME FROM SHARE DE ALING AS BUSINESS INCOME AND INTEREST FROM LOAN WERE INCOME FROM OTHER SOURCE. THE SAID COMPUTATION IS FILED BEFORE YOUR HONOUR AT PAGE 1 OF THE PAPER BOOK. TH E ASSESSING OFFICER TREATED THE INTEREST INCOME TO THE BUSINESS INCOME OF BUSINESS OF GRANTING LOAN AND ADVANCES.. THE CONTENTION OF THE ASSESSING OFFICER IS ACCEPTED , THEN IT IS ALLOWABLE AS PER SECTION SINCE THERE IS NO OTHER BUSINESS INCOME OR OTHERWISE IF NOT THE SAID INCOME WOULD BE INCOME FROM OTHER SOURCE DERIVING FROM INT EREST AND AS PER DETAILS FILED BEFORE YOUR HONOUR THE SAID SET OFF IS ALLOWABLE. MOREOVER, THE ASSESSEE HAS ALREADY CLAIMED THE INTEREST FROM LOAN AS INCOME FROM THE O THER SOURCE AND THE DETAILS WERE SUBMITTED IN THE PAPER BOOKS FILED BEFORE YOUR HONO UR. M.A. NO74/KOL/11-A-CDR 2 3.4 IN VIEW OF THE ABOVE SUBMISSION, IT IS HUMBLY P RAYED THAT THE ORDER PASSED BY THE TRIBUNAL ON 04-02-2011 MAY RECTIFY THE MISTAKE/ ERROR/OMISSION OF THE REAL FACT OR RECALL THE ORDER AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE FOR END OF JUSTICE. 4. THE LEARNED AR FOR THE ASSESSEE FURTHER SUBMITT ED THAT THE EXPLANATION TO SECTION 73 OF THE ACT HAS TWO LIMBS, WHICH HAD NOT CONSIDERED BY THE TRIBUNAL. IT WAS FURTHER SUBMITTED THAT HOLDING OF SHARES IN THE HOLDING COMPANY WOULD NOT ATTRACT THE PROVISIONS OF SECTION 73 OF THE ACT. IT WAS T HE FURTHER SUBMISSION THAT THE TRIBUNAL HAD ALSO NOT C ONSIDERED THE DECISION OF THE HONBLE JURISDICTIONAL CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SHREE SALASAR PROPERTIES & FINANCE (P) LTD. IN ITA NO.860 OF 2008 DATED 12 TH JANUARY 2009. IT WAS THE SUBMISSION THAT AS THE P ROVISIONS OF SECTION 73 ALONG WITH EXPLANATION THERETO HAD NOT B EEN RIGHTLY CONSTRUED BY THE TRIBUNAL, WHEN IT PASSED THE ORDER DATED 04-02-2011, THE SAID ORDER O F THE TRIBUNAL WAS PERVERSE AND WAS LIABLE TO BE RECALLED. 5. IN REPLY, THE LEARNED DR SUBMITTED THAT THE PROV ISIONS OF SECTION 73 OF THE ACT AND EXPLANATION THERETO WAS A DEBATABLE AREA AND THE S AME COULD NOT BE ENTERTAINED IN THE MISC. APPLICATION. IT WAS THE FURTHER SUBMISSION BY THE LEARNED DR THAT THE DECISION OF THE HONBLE JURISDICTIONAL CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SHREE SALASAR PROPERTIES & FINANCE (P) LTD. (REFER TO SUPRA) MIGHT NOT HAVE BEEN REFERRED TO BEFORE THE TRIBUNAL WHEN THE APPEAL WAS ORIGINALLY HEARD AND CONSEQUENTLY, THE SAME CANNOT BE HELD TO BE A MISTAKE APPARENT FROM RECORD AND THE SAME COULD NOT BE A GROUND FOR RECALLING THE SAID ORDER OF THE TRIBUNAL. THE LEARNED DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE TRIBUNAL DATE D 04-02-2011. 6. IN REPLY, SHRI SUBASH AGARWAL, ADVOCATE, THE LE ARNED AR FOR THE ASSESSEE SUBMITTED THAT INTEREST INCOME OF THE ASSESSEE WAS HIGHER THAN TH E OTHER INCOMES AND CONSEQUENTLY, THE PROVISIONS OF SECTION 73 OF THE ACT ITSELF COULD NOT HAVE BEE N INVOKED IN THE CASE OF ASSESSEE AS THE PRINCIPAL BUSINESS OF ASSESSEE WAS FINANCING AND EARNING OF INTEREST. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE MISC. APPLICATION AS FILED BY THE ASSESSEE AND THE SUBMISSIONS OF THE LEARNED AR FOR THE ASSESSEE SHOW THAT IT IS MORE SPECIFICALLY ON THE PERVERSITY OF FACTS IN THE ORDER OF THE TRIBUNA L. THE PERVERSITY IN THE ORDER OF THE TRIBUNAL CANN OT BE A GROUND TO RECALL THE ORDER OF THE TRIBUNAL, IT C OULD BE A GROUND FOR AN APPEAL. SINCE THE FACTS IN THE SAID DECISION, WHICH HAS BEEN RENDERED BY THE JURIS DICTIONAL CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SHREE SALASAR PROPERTIES & FINANCE (P) LTD.(REF ER TO SUPRA) IS ALSO NOT BEFORE US AS ALSO ON ACCOUNT OF THE FACT THAT NO AFFIDAVIT HAS BEEN FILE D SPECIFYING THAT THE SAID DECISION HAS BEEN PLACE D BEFORE THE TRIBUNAL, WE ARE OF THE VIEW THAT THE S AID ORDER OF THE TRIBUNAL CANNOT BE HELD TO BE SUFFERING A MISTAKE APPARENT FROM RECORD. THE CLAIM OF THE ASSESSEE THAT INTEREST INCOME IS SUBSTANTIALLY HIGHER THAN OTHER INCOMES, CONSEQUENT LY, THE PROVISIONS OF SECTION 73 OF THE ACT WOULD M.A. NO74/KOL/11-A-CDR 3 NOT APPLY AND CANNOT BE LOOKED INTO BY THIS TRIBU NAL IN THE MISC. PETITION, AS IT WOULD REQUIRE LOOKING INTO FRESH FACTS. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW, THE ORDER OF THE TRIBUNAL DATED 04- 02-2011 CANNOT BE HELD TO BE SUFFERING FROM A MIST AKE APPARENT FROM RECORD AND CONSEQUENTLY, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STA NDS DISMISSED. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE STANDS DISMISSED. 3 . 4 .% 5 67 ORDER PRONOUNCED IN THE OPEN COURT ON 21-09-2012 SD/- SD/- [ ! ' 1$% , ] [ .., ] [GEORGE MATHAN, JUDICIAL MEMBER] [ C.D RAO, ACCOUNTANT MEMBER ] / DATED : 21-09-2012 3 0 *88& 9&2/ COPY OF THE ORDER FORWARDED TO: 1. $, /APPELLANT- M/S. VENTEX TRADE PVT. LTD 1 R.N MUKH ERJEE RD, 5 TH FL., ROOM NO. NO.45B, KOL-1. 2 *+$, / RESPONDENT : ITO, WARD 5(4), KOL. 3. 83%/ CIT, 4. 83% ()/ CIT(A), 5. @85 *8%/ DR, KOLKATA BENCHES, KOLKATA *PP/SPS [+& *8/ TRUE COPY] 3%./ BY ORDER, /ASSTT REGISTRAR.