M/S. LMJ OVERSEAS LTD.,KOLKATA vs. ITO, WARD-8(3), KOLKATA, KOLKATA

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ITA 1227/KOL/2017Status: DisposedITAT Kolkata27 November 2019AY 2011-123 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the CIT(A) had not decided three substantive grounds on merits and restored these issues back to the CIT(A) for fresh adjudication. The Tribunal also restored the Section 40(a)(ia) issue for fresh adjudication, relying on a coordinate bench ruling regarding the retrospective effect of a statutory amendment.

What were the facts?

The assessee's appeal for AY 2011-12 challenged disallowances related to agricultural income, administrative expenses, employee costs, and Section 40(a)(ia) disallowance. The CIT(A) had not adjudicated three of the four grounds.

What were the issues?

Whether the CIT(A) properly adjudicated all grounds of appeal and the retrospective applicability of the amendment to Section 40(a)(ia) for the assessment year in question.

Which sections of the Income-tax Act were involved?

Section 40(a)(ia)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “B”, BENCH KOLKATA

Before: SHRI J. SUDHAKAR REDDY, AM & SHRI S. S. GODARA, JM

Hearing: 21/10/2019Pronounced: 27/11/2019

30, Jawaharlal Nehru Road, 2nd Floor, Kolkata – 700016. �थायीलेखासं./जीआइआरसं./PAN/GIR No.: AAACL4426A (Appellant) .. (Respondent) Appellant by : None Respondent by : Smt. Ranu Biswas, Addl. CIT सुनवाईक�तार�ख/ Date of Hearing : 21/10/2019 घोषणाक�तार�ख/Date of Pronouncement : 27/11/2019 आदेश / O R D E R Per Shri S. S. Godara: This assessee’s appeal for assessment year 2011-12 arises against the Commissioner of Income Tax (A) - 11, Kolkata dated 30.03.2017 passed in Case No.588/CIT(A)-11/8(3)/Kol/14-15/Kol involving proceedings u/s 143(3) of the Income Tax Act, 1961 (in short ‘the Act’). Case called twice. None appears at assessee’s behest. The registry has already sent an RPAD notice(s) dt. 23.09.2019 for today’s hearing. We therefore proceed ex parte against the assessee/appellant. The case is now taken up for adjudication on merits.

2.

The assessee’s four substantive grounds in the instant appeal challenge correctness of both the lower authorities’ action inter alia disallowing/adding agricultural income of Rs.1,11,35,557/- taken as income from undisclosed sources with corresponding expenditure of Rs.13,83,195/-, disallowance of administrative expenditure and employees cost of Rs.30,631/- and Rs.1,91,44,356/- and section 40(a)(ia) disallowance on payments of ocean freight and terminal handling charges amounting to Rs.2,62,867/-; respectively made in the regular assessment dated 31.01.2014 as upheld in the lower appellate proceedings.

3.

It transpires at the outset that the CIT(A) has not adjudicated the assessee’s instant former three substantive grounds involving agricultural income and expenditure disallowance as well as administrative and employees expenses (supra) in lower appellate order under challenge. Smt. Biswas invites our attention to page 3 para 4-5 that the assessee’s written submissions qua the same have nowhere pressed. We find no merit to agree with the Revenue’s instant arguments. There is no material on record that the assessee had ever conceded in these three issues either in the course of assessment or in the lower appellate proceedings. It rather emerges that the CIT(A) has drawn inference stating “conduct of the assessee” only. We therefore deem it appropriate in these facts and circumstances that larger interest of justice would be met in case the CIT(A) decides all the cases former three cases on merits as per law within three effective opportunities of hearing. We order accordingly.

4.

Coming to the fourth issue of section 40(a)(ia) disallowance, the assessee appears to have relied upon the statutory amendment vide Finance Act 2014 w.e.f. 01.04.2015 restricting such an amount to 30% only. The CIT(A) holds that the said amendment to be carrying prospective effect and not applicable in the impugned assessment year 2011-12. This tribunal’s coordinate bench’s order in Dipak Parui v. JCIT dated 20.07.2018 holds that the above amendment carries retrospective effect being curative in nature. We therefore restore the instant issue as well back to the CIT(A) for fresh adjudication on merits as per law within three effective opportunities of hearing. It shall be open for the assessee to raise all factual/legal pleas in the consequential lower appeal proceedings.

5.

This assessee’s appeal is allowed for statistical purposes in above terms.

Order is pronounced in the open court on 27.11.2019.

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