JCT LTD., Kolkata V. DCIT, Circle - 12(1), KOLKATA, Kolkata

MA 75/KOL/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6928 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 26-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S DASAGUPTA
• Assessee Lawyers: A K GUPTA

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT, MEMBER AND SHRI S.S.VISWANETHRA RAVI JUDICIAL MEMBER (MISC. APPLICATION) M.A.NOS.74-75/KOL/2018 (ARISING OUT ITA NOS.228/ & 354KOL/2015) / ASSESSMENT YEAR1999:2000 JCT LTD., 18, MONILAL SAHA LANE, 2 ND FLOOR, P.S. NEW MARKET,KOLKATA-700013 [ PAN NO.AACJ 6370 E ] / V/S . DCIT, CIRCLE-12(1) P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, KOLKATA-69 (ORIGINAL APPELLANT/RESPONDENT) (ORIGINAL RESPON DENT) (APPLICANT) .. (RESPONDENT) /BY ASSESSEE SHRI A.K. GUPTA, FCA / BY REVENUE SHRI S. DASAGUPTA, ADDL. CIT-DR / DATE OF HEARING 29.06.2018 / DATE OF PRONOUNCEMENT 04-07-2018 / ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER:- BY THESE MISCELLANEOUS APPLICATION THE ASSESSEE SUB MITS A MISTAKE APPARENT ON RECORD CREPT INTO THE ORDER OF TRIBUNAL IN ITA NO.228/KOL/2015 AND 345/KOL/2015 FOR THE ASSESSMENT YEAR 1999-00 ORDER DATED 09.03.2018. 2. WE HAVE HEARD RIVAL CONTENTIONS. ASSESSEES LEAR NED COUNSEL, MR. A.K. GUPTA, STATES THAT TWO MISTAKES HAVE CREPT INT O THE IMPUGNED ORDER OF THE TRIBUNAL, THE FIRST BEING THAT, AT PAGE 3 PARA 7 OF THE IMPUGNED ORDER, THE ISSUE WAS REMANDED BACK TO THE FILE OF THE ASSESSING OFFI CER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW, THOUGH, THE BORROWED FUNDS, INTEREST FREE FUNDS AND THE AMOUNT THAT WAS ADVANCED TO SISTER CONCERN REMA INED THE SAME MA NO.74-75/KOL/2018 JCT LTD. VS. DCIT, CIR-12(1), KOL PAGE 2 SUBSTANTIALLY AS COMPOUND WITH THE OPENING BALANCES IN THE EARLIER ASSESSMENT YEAR AND WHEREIN, ON SIMILAR FACTS, THE TRIBUNAL HAD IN THE EARLIER ASSESSMENT YEAR GRANTED RELIEF. HE SUBMITS THAT, TH E RELIEF SHOULD HAVE BEEN GRANTED BY THE TRIBUNAL INSTEAD OF REMITTING THE MA TTER BACK TO THE FILE OF ASSESSING OFFICER BY FOLLOWING THE ORDER OF THE ITA T IN THE EARLIER ASST. YEAR. LEARNED DEPARTMENTAL REPRESENTATIVE MR. S. DASAGUPT A SUBMITS THAT, THE EARLIER YEARS ORDER OF THE TRIBUNAL WAS SET ASIDE BY THE HON'BLE HIGH COURT AND THE MATTER WAS SENT BACK TO THE TRIBUNAL AND HENCE THERE IS NO MISTAKE APPARENT ON RECORD IN THE IMPUGNED ORDER OF TRIBUNA L. IN REPLY LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT, CONSEQUENT TO THE OR DER OF HON'BLE HIGH COURT, THE TRIBUNAL HAS PASSED AN ORDER ACCEPTING THE CLAI M OF THE ASSESSEE AND NOT FOLLOWING CO-ORDINATE BENCHS ORDER ON THE VERY SAM E FACTS IS A MISTAKE APPARENT ON RECORD. 3. AFTER HEARING RIVAL SUBMISSIONS, WE ARE OF THE O PINION THAT THERE IS NO MISTAKE APPARENT ON RECORD REQUIRING RECTIFICATION. THE FACTS AS TO WHETHER THE BALANCES OF THE CURRENT YEAR ARE SUBSTANTIALLY THE SAME AS THAT OF THE PREVIOUS YEAR EXCEPT FOR MINOR NEGLIGENT TRANSACTIONS, DURI NG THAT PERIOD IS TO BE VERIFIED. WE ARE SURE THAT ASSESSING OFFICER WOULD FOLLOW THE DECISION OF THE TRIBUNAL TAKEN IN THE EARLIER ASSESSMENT YEAR AFTER THE REMAND FROM THE HON'BLE JURISDICTIONAL HIGH COURT OF THE FACTS AFTE R VERIFICATION ARE FOUND SIMILAR. THE PLEA OF THE LEARNED COUNSEL FOR THE ASSESSEE FO R A DIRECTION IN THIS REGARD, IN OUR VIEW CANNOT BE ISSUED IN AN MISCELLANEOUS AP PLICATION U/S. 254(2) OF THE ACT. HENCE, THIS GROUND OF MA IS DISMISSED. 4. THE SECOND GROUND RELATES TO CLAIM OF PRIOR PERI OD EXPENSE. THE ASSESSEE HAD CLAIMED OF 2,58,27,278/- AS PRIOR PERIOD EXPENSES. THE AO HAD DISALLOWED THE CLAIM IN THE ASSESSMENT ORDER. O N APPEAL, LD. FIRST APPELLATE AUTHORITY CALLED FOR REMAND REPORT. IN TH E REMAND REPORT THE AO ACCEPTED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF 65,44,332/- AT PARA 9.2 PAGE 4 OF THE ORDER. THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION, THOUGH CI T(A) HAD GRANTED PART RELIEF. THE LEARNED COUNSEL FOR ASSESSEE SUBMITS THAT THE R EMAND TO THE ASSESSING MA NO.74-75/KOL/2018 JCT LTD. VS. DCIT, CIR-12(1), KOL PAGE 3 OFFICER SHOULD HAVE BEEN ONLY TO THE EXTENT OF ADJU DICATING AS THE AMOUNT OF EXPENDITURE, OUT OF PRIOR PERIOD EXPENDITURE, WHICH WAS NOT ACCEPTED BY THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS, I.E., IT SHOULD HAVE BEEN RESTRICTED TO AN AMOUNT OF 1,02,87,946/-. THESE ARGUMENTS ARE DEVOID ON MERIT AS IN OUR VIEW THERE IS NO MISTAKE APPARENT O N RECORD IN THE IMPUGNED ORDER OF THE TRIBUNAL. WHEN THE ASSESSING OFFICER H AS ACCEPTED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF 1,55,44,332/- IN THE REMAND REPORT, IT IS WRONG ON THE PART TO THE ASSESSEE TO ASSUME THAT AO WOULD DO OTHERWISE, CONTRADICTING THE HIMSELF IN THE REMAND REPORT. IN ANY EVENT THERE IS NO MISTAKE APPARENT ON RECORD. HENCE, THIS GROUND IS D ISMISSED. 5. IN THE RESULT, MAS OF THE ASSESSEE ARE HEREBY DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/07/2018 SD/- SD/- ( ) ( ) (S.S.VISWANETHRA RAVI) (J. SUDHA KAR REDDY) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP '- 04 / 07 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-JCT LTD. 18, MONILAL SAHA LANE, 2 ND FL, P.S. NEW MARKET, KOLKATA-13 2. /REVENUE-DCIT, CIRCLE-12(1), 7 TH FL, P-7, CHOWRINGHEE SQUARE KOLKATA-69 3. 2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. 82, 2, KOLKATA / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO 2,