Intelligent Infrastructure Ltd, Kolkata V. PCIT-1, Kolkata

ITA 184/KOL/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 6133 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2016-2017
• Appeal Filed On: 20-06-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAVEEN KISHORE
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Revision of order; Rectification of order; Opportunity of being heard; Period of limitation; Fair market value; Competent authority; Set aside; Capital Gains
• Section: 263; 143(3); 50C; 142(1); 115JB; 143(2); 48; 13; 101

Judgement Text

आयकर अपीलȣय अͬधकरण Ûयायपीठ, कोलकाता । IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, KOLKATA BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI GIRISH AGRAWAL, ACCOUNTANT MEMBER I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 3/1, Dr. U.N. Brahmachari Street Kolkata - 700017 PAN : AABCP8597P Vs Pr. Commissioner of Income Tax -1, Kolkata अपीलाथȸ/ (Appellant) Ĥ× यथȸ/ (Respondent) Assessee by : Shri N.S. Saini, A/R & Ms. Priyanka Salarpuria, A/R Revenue by : Shri Praveen Kishore, CIT, D/R स ु नवाई कȧ तारȣख/Date of Hearing : 15/03/2022 घोषणा कȧ तारȣख /Date of Pronouncement: 24/03/2022 आदेश/O R D E R PER RAJPAL YADAV, VICE PRESIDENT : The present appeal is directed at the instance of the assessee against the order of the Learned Principal Commissioner of Income Tax, Kolkata (hereinafter the “ld. Commissioner”) passed u/s 263 of the Income Tax Act, 1961 (“the Act’), for Assessment Year 2016-17. 2. The assessee has taken ten grounds of appeal in Form No. 36. However, thereafter it has filed statement of facts and reiterated its challenge in summarized grounds of appeal. These grounds read as under:- “1. That on the facts and in the circumstances of the case and law, the order made by the d. Pr. CIT under section 263 of the Income tax Act, 1961 (IT Act') is illegal, invalid and not sustainable in law. 2. That on the facts and in the circumstances of the case and law, the Ld. Pr. CIT grossly erred in passing the order under section 263 even though the assessment order under section 143(3) dated 28th December 2018 passed by the Assessing Officer (AO) was neither erroneous nor prejudicial to the interest of the Revenue. I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 2 3. That on the facts and in the circumstances of the case and law, the AO after due examination of the relevant facts having already followed one of the courses permissible in law, the Ld. Pr. CIT was unjustified in setting aside the assessment for computing book profit under section 115JB of the act by making the addition of Rs.2,28,88,803/- for interest on service tax disallowed in computing income under normal provisions of the act. 4. That the Appellant having applied for Vivad Se Vishwas Scheme on the issue of addition under section 50C of the Act on the difference in sale consideration as per sale deed and the stamp duty value determined by the Addl. District Registrar and paid due tax thereon, which fact was brought to the notice of the Ld. Pr. CIT by filing evidence thereof, Ld. Pr. CIT thereafter was unjustified in setting aside the assessment on the issue and directing the AO to re-adjudicate the same issue after re-examination of the facts. 5. That the Pr. CIT has neither referred to any document nor provided any working for the less value of Rs. 2,77,72,000/- from the FMV for stamp duty determined by the Addl. District Registrar for sale of property u/s 50C of the Income Tax Act, therefore the Ld. Pr. CIT was not justified in setting aside the assessment on the issue back to the file of the Assessing Officer. 6. That on the facts and in the circumstances of the case and law, the AO after due examination of the relevant facts having already followed one of the courses permissible in law, the Ld. Pr. CIT was unjustified in setting aside the assessment on the issue of disallowance of interest of Rs.1,91,38,596/- u/s 24(b) of the Act and directing the AO to re-adjudicate the same issue after re-examination of the facts. 7. That on the facts and in the circumstances of the case and law, the AO after due examination of the relevant facts the Ld. Pr. CIT was unjustified in setting aside the assessment on the issue of disallowance of payment of gratuity of Rs.4,19,329/- u/s 48(7) of the Act and directing the AO to re-adjudicate the same issue after re- examination of the facts as even after disallowance of the same the MAT Liability is higher than normal tax liability already paid, so order u/s 143(3) is not prejudicial to the interest of revenue. 8. That on the facts and in the circumstances of the case and law, the AO after due examination of the relevant facts, the Ld. Pr. CIT was unjustified in setting aside the assessment on the issue of disallowance of leave encashment of Rs. 11,293/- u/s 43B of the Act and directing the AO to re-adjudicate the same issue after re- examination of the facts as even after disallowance of the same the MAT Liability is higher than normal tax liability already paid, so order u/s 143(3) is not prejudicial to the interest of revenue. 9. For that on the facts and in the circumstances of the case, the order of the CIT passed u/s 263 be cancelled since the assessment order u/s 143(3) dated 28.12.2018 was neither erroneous nor prejudicial to the interest of the revenue.” I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 3 3. The brief facts of the case are that the assessee company has filed its return of income electronically on 30/09/2016 declaring total income at Rs.8,07,33,801/-. The case of the assessee was selected for scrutiny assessment and notice u/s 143(2) & 142(1) of the Act, were issued and served upon the assessee. The ld. Assessing Officer has passed the assessment order u/s 143(3) of the Act on 28/12/2018 and determined the taxable income of the assessee at Rs.10,62,30,364/-. 4. The ld. Commissioner perused the assessment record and formed an opinion that action u/s 263 of the Act is required to be taken because the assessment order is erroneous one, which has cause prejudice to the interest of the revenue. Therefore, he issued a showcause notice u/s 263 of the Act on 12/03/2021. Copy of the showcause notice is available at page nos. 23 & 24 of the paper book. The ld. Commissioner thereafter issue two more showcause notices u/s 263 of the Act. Copy of these showcause notices are available at page nos. 31- 32 & 41-42 of the paper book. For better appreciation of the facts and circumstances, we deem it proper to take note of these showcause notices which read as under:- P.T.O. I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 4 “ I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 5 I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 6 I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 7 I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 8 I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 9 5. Though the ld. Commissioner had issued three showcause notices but ultimately in the concluding paragraph of the impugned order he has relegated the issues for further investigation to the assessing officer only for the points raised in the first showcause notice. The finding recorded by him in the concluding paragraph reads as under:- “13. In the result, the assessment order u/s 143(3) dated 28.12.2018 for A.Y. 2016-17 is set aside to the file of the Assessing Officer with a direction to pass a fresh assessment order after considering the issues discussed in para 2 above, the aforesaid observations, as per law and after giving an opportunity of being heard to the assessee.” 6. This appeal was listed before the Tribunal on earlier dates. During the course of hearing this discrepancy came to the notice of the bench and according to the ld. Counsel for the assessee, the bench sought for a clarification to this effect from the ld. Commissioner. The hearing was adjourned. However, instead of providing any clarification the ld. Commissioner has passed a rectification order u/s 154 r.w.s. 263 of the Act dt. 7 th March, 2022. He modified paragraph no. 13 of his order (original paragraph extracted supra). The ld. Counsel for the assessee has placed on record copy of the affidavit filed by Ms. Priyanka Salarpuria, exhibiting the facts narrated above. He submitted that the ld. Commissioner ought not to have rectified his order and the bench has not called for such an act at the end of the ld. Commissioner. 7. Before embarking an enquiry upon the issues disputed in the impugned order, we would like to deal with the facts and the plea raised by the ld. Counsel for the assessee. It is pertinent to observe that any order passed u/s 154 of the Act would give rise to an independent appellate proceeding. In the present case this rectification order has been passed by the ld. Commissioner. This order is in itself is an appealable order. The issues incorporated in the impugned order by way of rectification are not the subject matter of the present appeal. Therefore, remedy of the assessee lies somewhere else and it is at liberty to take all such opportunity if so advised but in the present proceedings no such issue can be raised by way of I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 10 filing an affidavit. For challenging the order passed u/s 154 of the Act, the assessee has to file a fresh appeal as contemplated in the Income Tax Act as well as the Income Tax Rules. 8. Reverting back to the issues raised in the impugned order, we find that the assessee has raised certain grounds of appeal which do not arise from the impugned order. The ld. Commissioner has remitted the issues discussed in paragraph no. 2 of the impugned order and in this paragraph the issues are only qua the first notice issued u/s 263 of the Act. The ld. Counsel for the assessee while impugning the order of the ld. Commissioner contended that the first issue raised by the ld. Commissioner is that the assessee had made a provision for interest on service tax amounting to Rs.2,28,88,803/-. This provision ought to have been added back to the book profit while computing such book profit for the purpose of Section 115JB. He submitted that the ld. Commissioner was of the view that it is a contingent liability and, therefore, it should form part of the book profit. The ld. Assessing officer has rightly not included it in the book profit because the Commissioner Service Tax, Kolkata, had adjudicated this controversy and confirmed the demand as well as the interest payable by the assessee. For buttressing this aspect, he drew our attention to the order of the Commissioner Service Tax, Kolkata, which is available at page number 215 of the paper book. In the concluding paragraph of this order, the ld. Commissioner Service Tax, Kolkata, has confirmed the following aspects:- “4.0 ORDER 4.1. I confirm the demand of 21,05,72,946/- under Section 73(2) of the said Act. 4.2 I order to pay Interest on the amount confirmed under Section 75 of the said Act. 4.3 impose Penalty of Rs.10572946/- under section 78 of the said Act. If the demand confirmed, the interest payable and 25% penalty thereon are paid by the notice within thirty days of the date of communication of this order, the amount of penalty under Sec 78 shall be 25% of the confirmed amount. 4.4. I impose Penalty of Rs. 10000/- under section 77 of the said Act.” I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 11 9. On the strength of this order the assessee has worked out the interest liability and such details have been tabulated in a chart available at page no. 230 of the paper book. According to the ld. Counsel for the assessee, this is an ascertained liability and not a contingent one. Therefore, this cannot be added in the book profit u/s 115JB of the Act. For buttressing this proposition he drew our attention towards the explanation appended to Section 115JB of the Act. 10. With regard to the second ground, he submitted that the ld. Commissioner was of the view that the sum of Rs.2,77,72,000/- ought to have been included in the deemed full sale consideration for the purpose of Section 50C of the Act. It was submitted before us that the assessee has sold certain office spaces wherein it has assigned specific car parking spaces to the vendee. According to the ld. Commissioner the value of such parking spaces ought to be included in the full sale consideration for the purpose of computing capital gains u/s 48 of the Act. The ld. Counsel for the assessee submitted that it has not sold the car parking spaces. It has just assigned the right to use the parking spaces. He drew our attention towards the clause available at page number 68 of the paper book, which reads as under:- 11. With regard to this issue, the ld. Counsel for the assessee has raised two submissions. That Section 50C contemplates that when a house property including land or building or both are being sold then full sale consideration would be deemed equivalent to the amount on which the stamp duty has been paid. In other words, whatever may be the sale consideration received by the vendor such sale consideration for the purpose of computation of capital gain u/s 48 would be deemed equivalent to the amount calculated by the Stamp Valuation Authority for the purpose of charging the stamp duty. He submitted that the assessee has not sold land or building. It has only assigned parking Part-II [Parking space] Right to park in 26 (twenty six) spaces for parking of medium sized car in or about the Building having cemented floor. I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 12 spaces to the vendee and, therefore, Section 50C is not applicable on these facts. For this purpose, he relied on the decision of the ITAT in the case of Ritz Suppliers Pvt. Ltd. vs. ITO in ITA No. 1945/Kol/2019, order dt. 17/01/2020. He further contended that on both these issues the ld. Assessing officer has taken a considered opinion after calling for all the details. This opinion may not match with the thought process of the ld. Commissioner but that would not brand the assessment order as erroneous. And, therefore, the ld. Commissioner is not justified in taking action u/s 263 of the Act. 12. On the other hand, the ld. CIT D/R, relied upon the impugned order of the Commissioner. He submitted that the assessing officer failed to conduct proper enquiry on both the issues and the Commissioner has rightly taken action u/s 263 of the Act. He has merely remitted these issues to the file of the assessing officer for fresh enquiry and no prejudice is caused to the assessee, if these issues are being examined afresh. 13. We have considered rival contentions and gone through the record carefully. Section 263 of the Income Tax Act has direct bearing on the controversy, therefore, it is pertinent to take note of this section. It reads as under: "263(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. [Explanation.- For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include- I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 13 (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorized by the Board in this behalf under section 120; (b) "record shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.- In computing the period of limitation for the purposes of sub- section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded." 14. On a bare perusal of the sub section-1 would reveal that powers of revision granted by section 263 to the learned Commissioner have four compartments. In the first place, the learned Commissioner may call for and examine the records of any proceedings under this Act. For calling of the record and examination, the learned Commissioner was not required to show I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 14 any reason. It is a part of his administrative control to call for the records and examine them. The second feature would come when he will judge an order passed by an Assessing Officer on culmination of any proceedings or during the pendency of those proceedings. On an analysis of the record and of the order passed by the Assessing Officer, he formed an opinion that such an order is erroneous in so far as it is prejudicial to the interests of the Revenue. By this stage the learned Commissioner was not required the assistance of the assessee. Thereafter the third stage would come. The learned Commissioner would issue a show cause notice pointing out the reasons for the formation of his belief that action u/s 263 is required on a particular order of the Assessing Officer. At this stage the opportunity to the assessee would be given. The learned Commissioner has to conduct an inquiry as he may deem fit. After hearing the assessee, he will pass the order. This is the 4th compartment of this section. The learned Commissioner may annul the order of the Assessing Officer. He may enhance the assessed income by modifying the order. At this stage, before considering the multi-fold contentions of the ld. Representatives, we deem it pertinent to take note of the fundamental tests propounded in various judgments relevant for judging the action of the CIT taken u/s 263. The ITAT in the case of Mrs. Khatiza S. Oomerbhoy Vs. ITO, Mumbai, 101 TTJ 1095, analyzed in detail various authoritative pronouncements including the decision of Hon'ble Supreme Court in the case of Malabar Industries 243 ITR 83 and has propounded the following broader principle to judge the action of CIT taken under section 263. (i) The CIT must record satisfaction that the order of the AO is erroneous and prejudicial to the interest of the Revenue. Both the conditions must be fulfilled. (ii) Sec. 263 cannot be invoked to correct each and every type of mistake or error committed by the AO and it was only when an order is erroneous that the section will be attracted. (iii) An incorrect assumption of facts or an incorrect application of law will suffice the requirement of order being erroneous. I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 15 (iv) If the order is passed without application of mind, such order will fall under the category of erroneous order. (v) Every loss of revenue cannot be treated as prejudicial to the interests of the Revenue and if the AO has adopted one of the courses permissible under law or where two views are possible and the AO has taken one view with which the CIT does not agree. If cannot be treated as an erroneous order, unless the view taken by the AO is unsustainable under law (vi) If while making the assessment, the AO examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determine the income, the CIT, while exercising his power under s 263 is not permitted to substitute his estimate of income in place of the income estimated by the AO. (vii) The AO exercises quasi-judicial power vested in his and if he exercises such power in accordance with law and arrive at a conclusion, such conclusion cannot be termed to be erroneous simply because the CIT does not fee stratified with the conclusion. (viii) The CIT, before exercising his jurisdiction under s. 263 must have material on record to arrive at a satisfaction. (ix) If the AO has made enquiries during the course of assessment proceedings on the relevant issues and the assessee has given detailed explanation by a letter in writing and the AO allows the claim on being satisfied with the explanation of the assessee, the decision of the AO cannot be held to be erroneous simply because in his order he does not make an elaborate discussion in that regard. 15. In the light of above, let us examine the facts of the present case. The first point on which the assessment order has been treated as erroneous which has caused prejudice to the interest of the revenue is, whether interest liability towards service tax is a contingent liability or not? Whether it is to be included in the book profit computed u/s 115JB of the Act. 16. In order to appreciate this issue we would like to take note of the relevant part of explanation (1) appended to Section 115JB of the Act, which reads as under:- Explanation.—For the purposes of this section, "book profit" means the net profit as shown in the profit and loss account for the relevant previous year prepared under sub- section (2), as increased by— I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 16 (a) ********* ************ ************** (b) ********* ************* ************** (c) the amount or amounts set aside to provisions made for meeting liabilities, other than ascertained liabilities; or (d) ************ *************** ************ (e) ************ ************** ************ ******* A perusal of the above clause would reveal that if certain amount or amounts have been set aside to a provision, in other words, if assessee has made a provision and if that provision is not unascertained liability then book profit computed by the assessee as shown in the statement of profit and loss account would be increased by such unascertained liability for which a provision has been made. Thus, if the interest liability for which a provision has been made by the assessee is to be treated as a contingent liability then the assessment order would be suffering from an apparent error. The question before us is whether, it is a contingent liability or not. A competent authority under the Service Tax has adjudicated the proceedings and quantified the demands required to be made. In other words the Commissioner Service Tax, Kolkata, has passed an executable order on the basis of which a demand can be recovered from the assessee. If that be so, how the interest liability for which a provision has been made can be construed as a contingent liability. The only reasoning available at the end of the revenue is that the assessee has challenged the order in higher appellate forum. But that would not absolve the assessee from making the payments on the basis of this order during pendency of any appellate proceedings. The revenue has nowhere demonstrated that execution of this order has been stayed and, therefore, the liability should be deemed as contingent. It is also pertinent to observe that this aspect has been accepted by the Assessing Officer. It is quite debatable to construe that if an order passed by the competent authority crystallising the amount payable by the assessee, if challenged in an appeal would lose its executability unless stayed by the Appellate Authority. Therefore, to our mind regarding the first aspect the I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 17 assessment order is not an erroneous one and the ld. Commissioner ought not to have exercised jurisdiction u/s 263 of the Act, on the first point. 17. As far as the second point is concerned, it is pertinent to note that a perusal of Section 48 of the Act would contemplate that income chargeable under the head capital gains shall be computed by deducting from the full value of consideration received or accruing as a result of the transfer of the capital asset the following amounts:- (a) expenditure incurred wholly and exclusively in connection with such transfers. (b) the cost of acquisition of the asset and the cost of any improvement in thereto. The expression “the full value of consideration” used in section 48 of the Act has to be construed by keeping in view the deeming proposition provided in Section 50C of the Act. Section 50C further contemplates that this full value of consideration would be deemed equivalent to the value on which stamp duty has been paid. In other words, the amount on which stamp duty has been paid would replace the full value of consideration otherwise received or accrued to an assessee as noted in Section 48 of the Act. For example an assessee has received Rs.100/- as full sale value of a capital asset but for the purpose of payment of stamp duty its value was determined at Rs.120/-, then for the purpose of computing capital gains u/s 48, the amount of Rs.120/- would be deemed as the full value. 18. The case of the ld. Commissioner is that the assessee has assigned certain parking spaces on sale of office spaces. The value of such parking spaces has not been included in the deemed consideration calculated u/s 50C. The case of the assessee, on the other hand, is that Section 50C is applicable in case of an capital asset, being a land or building or both. The assigning of parking spaces I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 18 may be a capital asset but it is not absolute transfer of land or building or both. Therefore, Section 50C is not applicable as it is common parking space in an office premise. It is to be appreciated that parking space has to be assigned and not to be sold. Though there is a very narrow distinction between the both because if it is to be sold by the vendor, the vendee may erect a structure after obtaining the absolute right of such space. Therefore, parking spaces are not subject to sale and a rather assigned. If some structure is erected it could create problem for the co-users of the parking space. If this aspect has to be viewed with the above angle the, it will show that ld. Assessing Officer has taken a plausible opinion. There might be a debate on such opinion but there should not be any action u/s 263 of the Act. Therefore, on the second point also the order of the ld. Commissioner, is not sustainable. 19. As far as the other show cause notices issued by the ld. Commissioner and discussed in the impugned order are concerned, on these show cause notices, he has not issued any specific directions for the assessing officer. One way to appreciate this situation would be that he might be satisfied with the explanation offered by the assessee and did not give any direction. The other way to appreciate the situation would be that he has passed an order u/s 154 of the Act. Therefore, in the present case it is neither advisable nor desirable on our end to express any opinion on those points. The scope of Section 154 is very limited. The rectification order has to be judged in an independent appeal within the parameter of such scope. Therefore, we resist ourselves from making any observation on the points contained in the other two show cause notices. The observations made by us for explaining the issues u/s 154 of the Act or on the other two show cause notices will not impair or injure the case of the revenue nor it will cause any prejudice to the defence/explanation of the assessee. 20. It is also pertinent to note that if the impugned order is quashed on account of some jurisdictional error then probably there could not be any I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 19 rectification u/s 154. For example if the impugned order is time-barred and it is quashed then there will not be any consequential proceedings. 21. We are confining ourselves to a limited point that two issues have been raised under the first showcause notice. On these two issues no action u/s 263 of the Act is justifiable and, therefore, we quash the order of the ld. Commissioner to this extent. Other issues are not the subject matter of appeal before us and, therefore, we do not, make any observations on these issues. 22. In the result, appeal of the assessee is allowed. Order pronounced in the Court on 24 th March, 2022 at Kolkata. Sd/- Sd/- (GIRISH AGRAWAL) (RAJPAL YADAV) ACCOUNTANT MEMBER VICE-PRESIDENT Kolkata, Dated 24/03/2022 *SC SrPs आदेश कȧ ĤǓतͧलͪप अĒेͪषत/Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant 2. Ĥ×यथȸ / The Respondent 3. संबंͬधत आयकर आय ु Èत / Concerned Pr. CIT 4. आयकर आय ु Èत)अपील (/ The CIT(A)- 5. ͪवभागीय ĤǓतǓनͬध ,आयकर अपीलȣय अͬधकरण, कोलकाता/DR,ITAT, Kolkata, 6. गाड[ फाईल /Guard file. आदेशान ु सार/ BY ORDER, TRUE COPY Assistant Registrar आयकर अपीलȣय अͬधकरण ITAT, Kolkata I.T.A. No. 184/Kol/2021 Assessment Year: 2016-17 Intelligent Infrastructure Ltd. 20 1. Date of dictation- 22/03/2022 2. Date on which the typed draft is placed before the Dictating Member 23/03/2022 Other member 24/03/2022 3. Date on which the approved draft comes to the Sr.P.S./P.S. - 24/03/2022 4. Date on which the fair order is placed before the Dictating Member for Pronouncement 24/03/2022 5. Date on which the file goes to the Bench Clerk 24/03/2022 6. Date on which the file goes to the O.S. .................................. 7. The date on which the file goes to the Assistant Registrar for signature on the order..................... 8. Date of Despatch of the Order......................