DCIT, Central Circle - XVIII, Kolkata, Kolkata V. Nangalia Hydrocarbon Ltd., Kolkata

MA 98/KOL/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8743 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 27-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : KOLKATA [BEFORE SRI PRAMOD KUMAR, A.M. & SRI GEORGE MATHAN , J.M.] M.A. NO. 98/KOL./2011 (ARISING OUT OF I.T.(S.S.)A NO. 9/KOL/2011) ASSESSMENT YEAR : 2007-200 8 DEPUTY COMMISSIONER OF INCOME TAX, -VS.- NANGALIA HYDROCARBON LTD., CENTRAL CIRCLE-XVIII, KOLKATA 7C, KIRAN SHANKA R ROY ROAD, 18, RABINDRA SARANI, KOLKATA-700 001 KOLKATA-700 001 [PAN : AAACN 9534 B] (APPLICANT ) ( RESPONDENT ) FOR THE APPLICANT : SHRI ASHOK KR. DEY , D.R. FOR THE RESPONDENT : SHRI A.K. TIBREWAL, A.R . DATE OF HEARING : 20.07.2012 DATE OF PRONOUNCEMENT : 20.07.2012 ORDER PER PRAMOD KUMAR : - BY WAY OF THIS RECTIFICATION PETITION, THE APPLICA NT ASSESSING OFFICER POINTS OUT THAT THE ORDER DATED 5 TH MAY, 2011 PASSED BY US SUFFERS FROM A MISTAKE APPA RENT ON RECORD INASMUCH AS, EVEN THOUGH TAX EFFECT INVOLVED IN THIS APPEAL WAS LESS THAN RS.2 LAKHS, THE APPEAL SHOULD HAVE BEEN DECIDED ON MERITS AS CONSTITUTIONAL VALIDITY OF THE PROVISION OF SECTIO N 153A IS UNDER CHALLENGE AND FILING OF SUCH APPEAL IS MANDATED BY BOARDS INSTRUCTION NO. 05/2008 DATED 15.05.2008. 2. OUR ATTENTION IS ALSO INVITED TO PARA 8(A) OF TH E CIRCULAR DATED 15.05.2008 WHICH PROVIDES THAT ADVERSE JUDGMENT RELATING TO THE FOLLOWING SHOULD BE CONTESTED IRRESPECTIVE OF TAX EFFECT (A) WHERE CONSTITUTIONAL VALIDITY OF THE PROVISIONS OF THE ACT OR RULE ARE UNDER CHALLENGE. M.A. NO. 98/KOL./2011 (ARISING OUT OF IT(SS)A NO. 9/KOL./2011) 2 3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CASE AS ALSO THE A PPLICABLE LEGAL POSITION. 4. WE FIND THAT THE PLEA OF THE APPLICANT PROCEEDS ON THE FALLACY THAT CONSTITUTIONAL VALIDITY OF SECTION 153A WAS, OR COULD HAVE BEEN, CHALLENGED BEFORE US. THIS TRIBUNAL IS A CREATURE OF THE INCOME TAX ACT, AND NOT A CONSTITUTIONAL FORUM WHICH CAN EXAMINE VIRES OF THE PROVISIONS OF THE ACT. IN ANY CASE, THERE WAS NO SUCH CHALLENG E RAISED IN THE APPEAL ANYWAY, THE INTERPRETATION OF SCOPE OF 153A, AS WAS THE ISSUE I N THIS APPEAL, IS ONE THING AND ITS CONSTITUTIONAL VALIDITY QUITE ANOTHER. WE, THEREFOR E, REJECTED THE PETITION AS ILL CONCEIVED AND DEVOID OF ANY MERITS. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/ 07 /2012. SD/- SD/- [ GEORGE MATHAN] [PRAMOD KUMAR] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20/ 07 / 2012 COPY OF THE ORDER FORWARDED TO: 1. APPLICANT 2 RESPONDENT 3. COMMISSIONER OF INCOME-TAX (APPEALS)- ,KOLKATA 4. CIT- , KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, I.T.A.T., KOLKATA LAHA, SR. P.S.