Calcutta High Court
M/S.Akzo Nobel India Ltd vs Cit on 14 June, 2016
Author: Asha Arora
Bench: Asha Arora
ORDER SHEET
ITA 110 0F 2011
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income Tax)
ORIGINAL SIDE
M/S.AKZO NOBEL INDIA LTD.
Versus
CIT,KOL-IV, KOL AND ANR.
BEFORE:
The Hon'ble JUSTICE GIRISH CHANDRA GUPTA
The Hon'ble JUSTICE ASHA ARORA
Date : 14th June, 2016.
For Appellant/Petitioner : Mr.R.N.Bajoria, Sr.Advocate
Mrs. Nilanjana Banerjee (Pal),Advocate
For Respondent : Mr. S. N.Dutta, Advocate
The Court : This appeal is directed against a judgement and order dated 26th November, 2010 passed by the learned Income Tax Appellate Tribunal, "B" Bench, Kolkata in ITA 1620/Kol/2008 and ITA 1721 (Kol)/2008 both pertaining to the assessment year 2004-05. What had happened was that the earlier appeal was an appeal by the assessee and the subsequent appeal was an appeal by the revenue. Both the appeals were disposed of by the impugned judgement and order. The assessee has once again come up in appeal.
At the time of admission of the appeal, three questions were formulated, of which two are relevant for our purpose as submitted by Mr. Bajoria, learned Senior Advocate appearing on behalf of the assessee, which are as follows : 2
"1. Whether the learned Tribunal below committed substantial error of law in holding that the appellant was not entitled to deduction under section 36(1)(va) of the employees' contribution to the provident fund as the said amount had not been paid within the due date but before the filing of the return under section 139(1) in view of the proviso to Section 43B by taking a view which is contrary to the decision of the Supreme Court in the case of Commissioner of Income Tax vs. alom Extrusions Ltd. reported in (2009) 319 ITR 306.
3. Whether the learned Tribunal below committed substantial error of law in reversing the finding of the CIT(Appeals) on the question of transaction cost on capital gain on sale of property which is a perverse finding of fact without any material or evidence."
Both Mr.Dutta, learned advocate for the revenue and Mr.Bajoria, learned Senior Advocate appearing for the assessee submitted that the first question is already covered by a judgement of this court in the case of Commissioner of Income Tax, Circle-I, Kolkata vs. M/s.Vijay Shree Limited (ITAT NO.245 OF 2011, G.A.NO.2607 OF 201) against the revenue. In that view of the matter, the question no.1 is answered in the affirmative and against the revenue.
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In so far as the question no.3 is concerned, it appears that the CIT (Appeal) was of the opinion that the Assessing Officer had ignored evidence on record in disallowing the transaction cost to the assessee. The CIT(Appeal) based on the evidence allowed the deduction. In an appeal preferred by the revenue against that order , a point was taken that the CIT had permitted the assessee to adduce new evidence, that too, without giving an opportunity of rebuttal to the revenue, which is why there was violation of Rule 46A and ultimately at the time of hearing of the appeal, the learned Tribunal came to the finding that the deduction was allowed by the CIT (Appeal) on evidence. Mr. Dutta has not disputed that there was evidence on record. Therefore, proper course shall be to remand the matter to the Assessing Officer. He shall consider the question on the basis of evidence which may have been adduced and may be adduced as regards the transaction cost and shall decide the issue afresh in accordance with law. Thus, the question no.3 is answered accordingly.
The appeal is disposed of for the reasons as indicated above.
(GIRISH CHANDRA GUPTA, J.) (ASHA ARORA, J.) ssaha AR(CR) 4