M/S NICCO CORPORATION LTD.,KOLKATA vs. JCTI, (OSD), CIT-1, KOLKATA, LUCKNOW

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ITA 639/KOL/2016Status: DisposedITAT Kolkata05 September 2018AY 2009-20102 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the lower authorities had not adequately discussed the issue of surcharge applicability in light of the assessee's losses. Therefore, the matter was remanded back to the Assessing Officer for fresh adjudication.

What were the facts?

The assessee, Nicco Corporation Ltd., challenged the imposition of fringe benefit tax, surcharge, and education cess for AY 2009-10. The assessee argued that since it incurred losses, the 10% surcharge on fringe benefits should not apply.

What were the issues?

Whether the 10% surcharge on fringe benefit tax is applicable when the assessee has incurred losses during the assessment year.

Which sections of the Income-tax Act were involved?

Section 115WE(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, KOLKATA BENCH “” KOLKATA

Before: Shri J.Sudhakar Reddy & Shri S.S.Godara

PER S.S.Godara, Judicial Member:

- This assessee’s appeal for assessment year 2009-10 arises against the Commissioner of Income Tax (Appeals)-5, Kolkata’s order dated 01.02.2016, passed in case No.203/CIT(A)/5/(OSD)/11-12/14-15, in proceedings u/s 115WE(3) of the Income Tax Act, 1961; in short as ‘the Act’. Heard both the parties. Case File perused.

2.

The assessee’s sole substantive ground challenges correctness of both the lower authorities’ action determining its fringe benefit value of ₹1,44,47,545/-, assessment of fringe benefit tax @ 30% coming to ₹43,34,264/-, 10% surcharge at ₹4,33,426/- and education cess of ₹1,43,031/- for the sole reason that since it had incurred losses

ITA No. 639/Kol/2016 A.Y. 2009-10 M/s Nicco Corporation Ltd. Vs. JCIT(OSD), CIT-1/Kol. Page 2 during the relevant assessment year the above surcharge @ 10% would not apply as it was not a case involving profits to be exceeding ₹1 crore threshold limit. Learned counsel reiterates the same vey plea during the course of hearing that both the lower authorities have erred in law as well as on facts in imposing 10% surcharge in view of the above huge losses in the impugned assessment year. Learned Departmental Representative is very fair in submitting that all relevant facts corresponding to instant sole issue have neither being discussed in assessment order nor in the CIT(A)’s order. We therefore deem it appropriate that it would be in the larger interest justice in case the Assessing Officer adjudicates the instant issue afresh as per law after affording adequate opportunity of hearing to the assessee. The assessee’s sole substantive grievance is accepted for statistical purpose therefore.

3.

This assessee’s appeal is allowed for statistical purposes. Order pronounced in open court on 05/09/2018 (लेखा सद&य) ("या(यक सद&य) *Dkp-Sr.PS )दनांकः- 05/09/2018 कोलकाता / Kolkata आदेश क" ""त"ल"प अ"े"षत / Copy of Order Forwarded to:- 1. अपीलाथ"/Appellant-M/s Nicco Corpn. Ltd., Nicco House, 2, Hare Street, Kol-01

2.

""यथ"/Respondent-JCIT(OSD),CIT-1/Kol Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-69 3. संबं,धत आयकर आयु-त / Concerned CIT 4. आयकर आयु-त- अपील / CIT (A) 5. .वभागीय "(त(न,ध, आयकर अपील"य अ,धकरण कोलकाता/DR, ITAT, Kolkata 6. गाड2 फाइल / Guard file. By order/आदेश से, // Sr. Private Secretary, Head of Office/DDO आयकर अपील"य अ,धकरण, कोलकाता

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