C. D. Equifinance Pvt. Ltd., Kolkata V. DCIT, Circle-7, Kolkata

MA 91/KOL/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5237 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 30-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 01-07-2016
• Court: TRIBUNAL
• Department Lawyers: AKKAL DUDHWEWALA ACA LD
• Assessee Lawyers: S ALLONG YADEN CIT LD
• Section: 14A

Judgement Text

INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA BEFORE SHRI P.M. JAGTAP, AM & SHRI S.S.VI SWANETHRA RAVI, JM M.A. NO. 91/KOL /2016 [IN I.T A NO.1034/KOL/2012 A.Y 2008-09] M/S. C.D EQUIFINANCE VS. DCIT, CIR-7, KOLKATA PVT. LTD PAN AACCP7333A [ APPLICANT ] [ RESPONDENT ] APPLICANT BY : SHRI AKKAL DUDHWEWALA, ACA LD.AR RESPONDENT BY : SHRI SALLONG YADEN, ADDL.CIT, LD.DR DATE OF HEARING : 16-12-2016 DATE OF PRONOUNCEMENT : 25 -01-2017 ORDER SHRI S.S.VISWANETHRA RAVI, JM THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESSE E AGAINST THE IMPUGNED ORDER OF THE TRIBUNAL PASSED IN ITA NO. 10 34/KOL/2012 DATED 15-04-2016 FOR THE ASSESSMENT YEAR 2008-09. 2. BY THIS MISC. APPLICATION U/S. 254(2) OF THE ACT THE APPLICANT ASSESSEE URGED TO RECALL THE IMPUGNED ORDER DATED 15-04-2016 OF THE TRIBUNAL IN RESPECT OF THE FINDING OF TRIBUNAL IN D IRECTING THE AO TO RESTRICT THE ADDITION OF 45,79,093/- AS AGAINST THE DISALLOW ANCE OF RS.80,46,448/- AS MADE BY THE AO U/S. 14A OF THE ACT. 3. THE LD.AR SUBMITS THAT THIS TRIBUNAL DECIDED THE ISSUE OF DISALLOWANCE U/S. 14A BY WRONG ASSUMPTION THAT, THE THEN AR OF THE ASSESSEE DID NOT DISPUTE THE APPLICABILITY OF RULE 8D IN COMPUTING SUCH DISALLOWANCE MADE U/S. 14A OF THE ACT BY THE AO. T O THAT EFFECT THE LD.AR OF THE ASSESSEE DEPOSED THE FACT BY WAY OF AN AFFID AVIT DT. 30-06-2016 STATING THAT HE HAD OBJECTED TO SUCH DISALLOWANCE O F RS. 80,46,448/- MADE IN ACCORDANCE WITH RULE 8D(2)(III) AND CONCEDED TH AT RULE 8D WAS NOT M.A NO. 91/KOL/16-A-JM M/S. C.D EQUIFINANCE P.L TD 2 APPLICABLE. HE AFFIRMED BEFORE US THAT THE ASSESSEE MADE DISALLOWANCE OF RS.34,67,355/- ON ITS OWN FOR THE PURPOSE OF SECTIO N 14A OF THE ACT AND REFERRED TO PARAS 6 & 7 OF THE SAID AFFIDAVIT DT. 3 0.06.2016 AND ARGUED THAT THE TRIBUNAL WITHOUT TAKING INTO CONSIDERATIO N THE CORRECT FACTS OF THE CASE AND JUDICIAL DECISIONS THEREIN DECIDED THE APP EAL AGAINST LEGAL PRINCIPLES OF LAW LAID DOWN BY THE VARIOUS COURTS O F LAW AND PRAYED TO RECALL THE SAID ORDER DATED 15-04-2016 TO AN EXTENT OF GROUND NO.2 RAISED BY THE REVENUE IN ITA NO. 1034/KOL/12 FOR THE A.Y 2 008-09. 4. ON THE OTHER HAND, THE LD.DR RELIED ON THE IMPUG NED ORDER OF THE TRIBUNAL DATED 15-04-2016. 5. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THIS TRIBUNAL RESTRICTED THE D ISALLOWANCE TO RS.45,79,093/- AS AGAINST DISALLOWANCE RS.80,46,448 . TAKING INTO CONSIDERATION THE SAID AFFIDAVIT AS FILED BY THE LD .AR OF THE ASSESSEE BEFORE US, WE FIND THAT THERE IS A MISTAKE IN THE ORDER O F THE TRIBUNAL IN AS MUCH AS THE RELEVANT FACTS AS WELL AS ARGUMENTS RAISED O N BEHALF OF THE ASSESSEE HAVE REMAINED TO BE CONSIDERED INADVERTENT LY WHILE DECIDING THE ISSUE. ACCORDINGLY, WE RECALL THE IMPUGNED ORDER O F THE TRIBUNAL DATED 15-04-2016 TO AN EXTENT OF GROUND NO.2 RAISED BY TH E REVENUE IN ITA NO. 1034/KOL/2012 FOR THE AY 2008-09. THE REGISTRY IS D IRECTED TO FIX THE CASE IN DUE COURSE FOR HEARING BY INFORMING BOTH THE CON CERNED PARTIES. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25-01-2017 SD/- SD/- P.M.JAGTAP S.S.VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 25-01-2017 M.A NO. 91/KOL/16-A-JM M/S. C.D EQUIFINANCE P.L TD 3 COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT : M/S C.D EQUIFINANCE PVT. LIMITED 37 SHAKESPEARE SARANI, 1 ST FLOOR, KOLKATA-17. 2 RESPONDENT : DEPUTY/ASSISTANT COMMISSIONER OF INCOM E TAX, CIR-7, AAYKAR BHAWAN, 5 TH FLOOR, P-7 CHOWRINGHEE SQUARE, KOL-69. 3 . CIT, 4 . CIT(A), 5 . DR, KOLKATA BENCHES, KOLKATA **PP/SPS TRUE COPY] BY ORDER, ASSTT REGISTRAR.