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Income Tax Appellate Tribunal, “B” BENCH, KOLKATA
Before: Shri P.M. Jagtap, & Shri S.S Viswanethra Ravi
IN THE INCOME TAX APPELLATE TRIBUNAL, “B” BENCH, KOLKATA Before : Shri P.M. Jagtap, Accountant Member, and Shri S.S Viswanethra Ravi, Judicial Member I.T.A No. 2267/Kol/2013 A.Y. 2009-10
I.T.O, Ward-9(2), Kolkata Vs. M/s.Vishal Equity Services Pvt Ltd PAN: AABCV0238K (Appellant) (Respondent)
For the Appellant/department : Shri Ghyas Uddin, JCIT, Sr.DR For the Respondent/assessee: Shri Subhash Agarwal, Advocate, ld.AR
Date of Hearing: 13-06-2016 Date of Pronouncement: 03 - 08-2016 ORDER
SHRI S.S VISWANETHRA RAVI, JM This appeal of the Revenue is arising out of the order of the CIT(A)-VIII, Kolkata in appeal no. 79/CIT(A)-VIII/Kol/ 12-13 dated 13-06-2013 for the assessment years 2009-10 against the order of assessment framed by the AO u/s 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’).
In this appeal, the revenue has raised the following grounds:- 1. Whether on the facts and in the circumstances of the caseLd.CIT(A) was justified in directing to allow relief to the assesse after verification of the assessment records by the Assessment Officer
Whether on the facts and in the circumstances of the case Ld.CIT(A) was justified in restoring the matter to the Assessing Officer which is beyond the scope of powers conferred by Section 251 of Income Tax Act, 1961, and therefore whether the directions are bad in law . 1 ITA No.2267/Kol/2013 M/s. Vishal Equity Services Pvt. Ltd
THE appellant craves leave to add, alter or modify any ground of appeal during the course of hearing.
The only issue to be decided in this appeal as to whether Commissioner of appeals was justified in directing to modify the long-term capital gains under section 251 of the act in the circumstances of the case.
The brief facts of the case are that the assessee is a company and filed its return of income on 30th September 2009 wherein the assessee claimed long-term capital gains at Rs.1,19,08,187/- but however the assessee found in the intimation under section 143(1) of the act issued by the Central processing Centre the long-term capital gains at Rs.1,94,81,203/-. According to the assessee the assessing officer did not accept the rectification application filed under section 154 of the act to correct the mistake in the said intimation issued by the Central processing Centre. As aggrieved by the action of the assessing officer, the assessee preferred an appeal before the CIT(A) wherein the assessee filed computation of income to show that it claimed long- term capital gains at Rs.1,19,08,187/- but not at Rs.1,94,81,203/-and considering the same the Commissioner of appeals observed as under:
After carefully considering the submission of the appellant along with the supporting documents and details of computation furnished, perusing facts of the case including the relevant information under section 143(1) of the act and other materials brought on the records, I direct the AO to modify the figure of long-term capital gains considered at Rs.1,94,81,203/-in the intimation and take into consideration the same at Rs.1,19,08,187/- as shown in the computation of income after due verification of the relevant original office records in this regard. Thus, this ground of appeal of the appellant is allowed as stated about. 2 ITA No.2267/Kol/2013 M/s. Vishal Equity Services Pvt. Ltd
The revenue as aggrieved by the order of Commissioner of appeals before us by raising the aforementioned grounds of appeals in support of which the learned DR submits that the Commissioner appeals does not have power to send any issue to the assessing officer except in conform, reduce, enhance or annul the assessment and took us to section 251 of the act and explained that the power of Commissioner appeals in sending back the case to assessing officer was omitted by an amendment by the Finance act 2001 which came into force from 1-06-2001. Further argued that in view of the such amendment the order passed by the Commissioner appeals is bad and prayed to allow the appeal. In reply the learned AR relied on a decision of “A” bench of Delhi Tribunal in the case of ITO vs Amity International School reported in (2014) 48 taxman.com 173 (Delhi-Trib).
Heard rival submissions and perused the relevant material on record. Insofar as the arguments of learned DR concerned that he is right in submitting that the Commissioner appeals cannot exercise his jurisdiction in sending back the case to assessing officer within the meaning of section 251 of the act as the power of Commissioner appeals in remitting the case to assessing officer for fresh consideration was taken away by the amendment to Finance act which came into force from 1st June 2001. In this regard we may refer to the decision in the case of ITO vs Amity International School supra as relied on by the learned AR.
A perusal of the above provisions reveals that ld CIT(A) has the following (sic) while disposing of an appeal i.e. as per section 251(1)(a) while deciding an appeal against an assessment order, he may confirm, reduce, enhance or annul the assessment; as per section 251 (1)(aa) while deciding an appeal against an order of assessment, 3 ITA No.2267/Kol/2013 M/s. Vishal Equity Services Pvt. Ltd
in respect of which the proceeding before the settlement commission abates u/s 245 HA he may confirm, reduce, enhance or annul the assessment; and as per section 251(1)(b) while deciding an appeal against imposition of penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; and as per section 251 (1)(c), while deciding any other appeal which does not fall u/s 251(1)(a), aa, and b, the ld CIT(A) has been empowered by law to pass "such orders as he thinks fit". In the instant case the order appealed before the ld CIT(A) was passed by the AO u/s 201 of the Act and as we have seen that the ld CIT(A) has been empowered by section 251 (1)(c) of the Act to pass such orders as he thinks fit while deciding the such an appeal. In the instant case we note that the ld CIT(A) has observed that the appellant had filed correction statement and furnished relevant documents of TDS to prove its claim before him and he had also taken note of the fact that the AO has not accepted the said document because the appellant's correction statement were not accepted by the NSDL. In the light of the discussion above, we are of the opinion that when the ld CIT(A) adjudicates an appeal preferred against an order passed u/s 201 of the Act, he draws his power from sub-section (1)(c) of section 251 of the Act, which entails him to pass any order as he thinks fit and we do not find any restriction in the said power and we cannot read any restrictions which is not there in sub- section (1)(c) of Section 251 and therefore even he has powers to even set-aside the said order impugned before him. However we find that in the instant case before us, the ld CIT(A) has not set aside the AO's order and the impugned order of the AO which is passed u/s 201/ 201A of the Act, whereas he has remitted the case back to the file of AO to verify documents produced before him which was filed by the assessee to substantiate its claim and to allow the credit as per law. Therefore, we find no infirmity whatsoever in the direction passed by the ld CIT(A) and therefore we find no merit in the said appeal preferred by the revenue, so we uphold the order of the ld CIT(A) and dismiss the appeal of the revenue.
The facts of the aforementioned case are that the assessee filed an e-TDS statement. The Assessing Officer analyzed such statement and revealed defaults on account of
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non-payment of TDS. The Assessing Officer on the basis of justification report held the assessee in default. On appeal, the Commissioner (Appeals) noted that the assessee in fact had furnished the correct statement before the Assessing Officer. Considering the same the Commissioner (Appeals) directed the Assessing Officer to verify the assessee's claim and allow claim of the same. In the present case the assesse contended before the Commissioner appeals that it claimed long term capital gains at Rs.1,19,08,187/- proof which the computation of income was filed to show the same and also contended it did not furnish any kind of particulars showing long term capital gains at Rs.1,94,81,205/- and the CIT-A examined the same and came to conclusion that the assesse claimed long term capital gains at Rs.1,19,08,187/- only. In our opinion the CIT-A decided the issue by verifying supporting documents and relevant original office records involving the claim of the assessee, thereby directed the assessing officer to give effect to his decision. We find it is very clear that the Commissioner appeals did not send any issue for the fresh consideration to the assessing officer and we find that it was a direction to assessing officer to modify amounts relating to long term capital gains. It cannot therefore be said that there is violation of the provision of section 251 of the act.
In the result, the appeal of the of the revenue is dismissed. THIS ORDER IS PRONOUNCED IN OPEN COURT ON 03 / 08/2016
Sd/- Sd/- P.M. Jagtap S.S.Viswanethra Ravi, Accountant Member J Judicial Member
Date 03 / 08/2016
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Copy of the order forwarded to: 1.. The Appellant/Department: The I.T.O., W 9(2), P-7 Chowringhee Square, Aaykar Bhawan, 5th Floor, Room No.14, , Kol-69. The Respondent/Assessee: M/s. Vishal Equity Services Pvt. Ltd 11 Crooked Lane, 1st 2 Fl., Room No.7, Kolkata-69. 3 /The CIT, /The CIT(A) 4.. 5. DR, Kolkata Bench 6. Guard file. True Copy, By order, Asstt Registrar ** PRADIP SPS
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