M/s. Bisseswarlall Mannalal & Sons, Kolkata V. DCIT, Circle - 33, KOLKATA, Kolkata

MA 97/KOL/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7082 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 31-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIA BHATTACHARYA
• Assessee Lawyers: P J BHIDEFCA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENCH KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM M.A NO.97/KOL/2018 (ARISING OUT OF I.T.A NO.1140/KOL/2015) ( / ASSESSMENT YEAR: 2011-12) M/S BISSESWARLALL MANNALAL& SONS 12, PRETORIA STREET, 5 TH FLOOR, KOLKATA 700 071. VS. DCIT, CIR-33, KOLKATA 10B, MIDDLETON ROW,3 RD FLOOR, KOLKATA 71. ./ ./PAN/GIR NO. : AACFB 7736 L (APPELLANT) .. (RESPONDENT) APPELLANTBY :SHRI P. J. BHIDE,FCA RESPONDENT BY :SHRIA. BHATTACHARYA, ADDL. CIT, DR / DATE OF HEARING : 20/07/2018 /DATE OF PRONOUNCEMENT : 29/08/2018 / O R D E R PER DR. A. L. SAINI, AM: BY WAY OF CAPTIONED APPLICATION, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961(IN SHORT THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 31.01.2018. 2. THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION IS THAT THIS TRIBUNAL HAS ADJUDICATED THE ISSUE IN THE ASSESSEE`S CASE BY PLACING RELIANCE ON THE JUDGMENT OF THE COORDINATE BENCH IN THE CASE OF M/S. SEWAJPUR TEA CO. PVT. LTD. IN ITA NO.740 & 741/KOL/2010, ORDER DATED 21.03.2013.THE TRIBUNAL, RELYING ON THE SAID JUDGMENT HAS ADJUDICATED THE ISSUE IN FAVOUR OF THE REVENUE STATING THAT THE ISSUE IS COVERED IN FAVOUR OF THE REVENUE AND THEREFORE DISMISSED THE GROUND NO.3 RAISED BY THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT BEFORE US THAT M/S. SEWAJPUR TEA CO. PVT. LTD. IS A STANDALONE MANUFACTURER OF TEA AND IT DOES NOT GROW M/S BISSESWARLALLMANNALAL& SONS M.A NO.97/KOL/2018 ASSESSMENT YEAR: 2011-12 PAGE | 2 TEA AND DOES NOT HAVE TEA GARDEN FOR PLANTATION WHEREAS THE ASSESSEE COMPANY OWNS TEA GARDENS AND MANUFACTURES TEA. THEREFORE, THERE IS A DIFFERENCE SO FAR THE FACTS ARE CONCERNED HENCE THERE IS APPARENT ERROR IN THE ORDER OF THIS BENCH OF THE TRIBUNAL AND, THEREFORE, THE ORDER NEEDS TO BE RECALLED. HOWEVER, LD. DR FOR THE REVENUE DEFENDED THE ORDER PASSED BY THE TRIBUNAL AND ARGUED THAT THIS TRIBUNAL PASSED A REASONED JUDGMENT AND ISSUE IS FULLY COVERED IN FAVOUR OF THE REVENUE, THEREFORE, THIS ORDER NEEDS NOT BE RECALLED. 3. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD, WE NOTE THAT DISPUTE IS IN RESPECT OF CLAIM FOR DEDUCTION UNDER SECTION 80IC (2) (B) (III) OF THE ACT. THE ASSESSEE UNDER CONSIDERATION IS ENGAGED IN BOTH ACTIVITIES, THAT IS, GROWING/CULTIVATION OF TEA AS WELL AS MANUFACTURING OF TEA. HOWEVER, WHILE ADJUDICATING THE CLAIMS OF THE ASSESSEE IN RESPECT OF DEDUCTION U/S 80IC OF THE ACT, WE HAVE TAKEN A VIEW THAT THIS ISSUE INVOLVED IS SQUARELY COVERED IN FAVOUR OF THE REVENUE BY THE JUDGMENT OF THE COORDINATE BENCH IN ITA NO.740 & 741/KOL/2010, ORDER DATED 21.03.2013 IN THE CASE OF M/S. SEWAJPUR TEA CO. PVT. LTD. HOWEVER, THROUGH THIS M.A., IT WAS BROUGHT TO OUR NOTICE THAT IN THE CASE OF M/S. SEWAJPUR TEA CO. PVT. LTD. IT WAS ONLY ENGAGED IN MANUFACTURING OF THE TEA AND THERE WAS NO DISPUTE OF THE FACT THAT IT IS A STANDALONE MANUFACTURING TEA COMPANY AND THAT COMPANY DOES NOT DO THE CULTIVATION OF TEA AND THEREFORE, IT DID NOT HAD WITH IT GARDEN REGISTRATION CERTIFICATE WHICH IS ISSUED BY THE TEA BOARD OF INDIA AND THUS IT IS APPARENT THAT ASSESSEE DID NOT OWN ANY TEA GARDEN. AND SINCE M/S. SEWAJPUR TEA CO. PVT. LTD. WAS NOT ENGAGED IN CARRYING ON BUSINESS OF CULTIVATION OF TEA, WHICH WAS AN ESSENTIAL INGREDIENT TO BE QUALIFIED FOR CLAIMING M/S BISSESWARLALLMANNALAL& SONS M.A NO.97/KOL/2018 ASSESSMENT YEAR: 2011-12 PAGE | 3 DEDUCTION UNDER SECTION 80-IC OF THE INCOME TAX ACT, 1961 THE CLAIM OF THAT ASSESSEE WAS REJECTED. HOWEVER, ON THE OTHER HAND, IT WAS BROUGHT TO OUR NOTICE THAT ASSESSEE COMPANY OWNED A TEA ESTATE SITUATED IN SILCHAR DISTRICT OF ASSAM. IT WAS SUBMITTED BEFORE US THAT THE ASSESSEE COMPANY, IN ORDER TO UTILIZE INSTALLED MANUFACTURING CAPACITY, PURCHASED GREEN LEAVES FROM THE MARKET ALSO. THUS IT WAS BROUGHT TO OUR NOTICE THAT THE JUDGMENT OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. SEWAJPUR TEA CO. PVT. LTD. (SUPRA) IS NOT APPLICABLE TO THE ASSESSEE COMPANY UNDER CONSIDERATION, AS FACTS OF THE ASSESSEE COMPANY IS DIFFERENT AS DISCUSSED ABOVE. SINCE WE HAVE RELIED ON THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN M/S. SEWAJPUR TEA CO. PVT. LTD. TO DECIDE THE ISSUE IN ASSESSEES CASE, AND IT HAS BEEN SHOWN BEFORE US THAT CASE LAW IS NOT APPLICABLE TO THE FACTS OF THE ASSESSEES CASE, THEREFORE, WE ARE OF THE VIEW THAT THE ORDER OF THE TRIBUNAL DATED 31.01.2018 CONTAINS AN APPARENT MISTAKE AND SHOULD BE RECALLED. THEREFORE, WE DIRECT THE REGISTRY TO FIX THE APPEAL IN DUE COURSE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29/08/2018. SD/- (A. T. VARKEY) SD/- (A.L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA /DATED 29/08/2018 RS, SR.PS M/S BISSESWARLALLMANNALAL& SONS M.A NO.97/KOL/2018 ASSESSMENT YEAR: 2011-12 PAGE | 4 / COPY OF THE ORDER FORWARDED TO : //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. / THE APPELLANT M/S BISSESWARLALL MANNALAL& SONS 2. / THE RESPONDENT-DCIT, CIR-33, KOLKATA 3. ( ) / THE CIT(A), :KOLKATA. 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. / GUARD FILE.