ACIT, Circle - 2(1), Kolkata , Kolkata V. Bata India Ltd., Kolkata

ITA 1866/KOL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4172 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 07-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Set aside
• Section: 143(3); 263

Judgement Text

ITA NO. 1866/KOL/2019 ASS ESSMENT YEAR: 2007-2008 M/S.BATA INDIA LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA [VIRTUAL COURT HEARING] BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT & SHRI A.T. VARKEY, J.M. I.T.A. NO. 1866/KOL/2019 ASSESSMENT YEAR: 2007-2008 ASSISTANT COMMISSIONER OF INCOME TAX,.............. ...........................APPELLANT CIRCLE-2(1), KOLKATA, ROOM NO. 23, 7 TH FLOOR, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 4 TH FLOOR, KOLKATA-700069 -VS.- M/S. BATA INDIA LIMITED,........................... ......................................RESPONDENT 6A, S.N. BANERJEE ROAD, KOLKATA-700013 [PAN: AABCB1043Q] APPEARANCES BY: SHRI RANU BISWAS, ADDL. CIT, D.R., FOR THE APPELLANT SHRI SUJOY SEN, A.R., FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : OCTOBER 14, 2020 DATE OF PRONOUNCING THE ORDER : OCTOBER 29, 2020 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT :- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA DA TED 02.04.2019 ON THE FOLLOWING GROUNDS:- (1) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.4,49,94,844/- ON ACCOUNT OF EXCESS DISCOUNT DISALLOWED BY QUASHING THE ORDER U/S 263/154/263/143(4) WITHOUT GOING THROUGH MERIT OF T HE CASE? (2) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN QUASHING THE CONSEQUENTIAL ORDER U/S 263/154/263/143(3) PASSED B Y THE AO PURSUANT TO THE DIRECTION GIVEN BY THE LD. P R. CIT IN ITS ORDER U/S 263 OF THE I.T. ACT? (3) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS JUSTIFIED IN QUASHING THE ITA NO. 1866/KOL/2019 ASS ESSMENT YEAR: 2007-2008 M/S.BATA INDIA LIMITED 2 CONSEQUENTIAL ORDER U/S 263/154/263/143(3) WITHOUT APPRECIATING THE FACT THAT ORDER PASSED BY THE HON BLE ITAT, KOLKATA AGAINST THE ORDER U/S 263 OF THE I.T. ACT IS UNDER CHALLENGE BEFORE THE HONBLE HIGH COURT, KOLK ATA? 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 30 DAYS ON THE PART OF THE REVENUE IN FILING THIS APPEAL BEFORE THE TRI BUNAL. IN THIS REGARD, AN APPLICATION FILED BY THE REVENUE SEEKING CONDONATIO N OF THE SAID DELAY IS PLACED ON RECORD AND KEEPING IN VIEW THE REASONS GI VEN THEREIN, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 30 DAYS ON THE PART OF THE REVENUE IN FILING THIS APPEAL BEFORE TH E TRIBUNAL. EVEN THE LD. LD. COUNSEL FOR THE ASSESSEE HAS NOT RAISED ANY OBJ ECTION IN THIS REGARD. THE DELAY OF 30 DAYS ON THE PART OF THE REVENUE IN FILING THIS APPEAL BEFORE THE TRIBUNAL IS ACCORDINGLY CONDONED AND THE APPEAL OF THE RECENUE IS BEING DISPOSED OF ON MERIT. 3. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND SALES OF FOOTWEAR AND ACCESSORIES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED BY IT ON 31.10.2007 DECLARING TOTAL INCOME OF RS.28,26,30,21 9/-. IN THE ASSESSMENT ORIGINALLY COMPLETED UNDER SECTION 143(3 ) OF THE ACT VIDE AN ORDER DATED 28.12.2010, THE TOTAL INCOME OF THE ASS ESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.66,48,81,000/-. THE SAID ORDER WAS SUBSEQUENTLY SET ASIDE BY THE CONCERNED LD. CIT VID E AN ORDER DATED 28.03.2014 PASSED UNDER SECTION 263 AND THE FRESH A SSESSMENT WAS MADE BY THE ASSESSING OFFICER UNDER SECTION 143(3) READ WITH SECTION 263 VIDE AN ORDER DATED 28.03.2016. THEREAFTER THE SAID ORDE R WAS RECTIFIED BY THE ASSESSING OFFICER VIDE AN ORDER DATED 15.07.2014 PA SSED UNDER SECTION 154/143(3)/263 OF THE ACT DETERMINING THE INCOME OF THE ASSESSEE FROM LONG-TERM CAPITAL GAIN AT RS.47,76,79,800/-. THEREA FTER ANOTHER ORDER WAS PASSED BY THE CONCERNED LD. PRINCIPAL CIT UNDER SEC TION 263 ON 28.03.2016 WITH A DIRECTION TO THE ASSESSING OFFICE R TO MAKE A FRESH ASSESSMENT ON THE LIMITED ISSUE OF CAPITAL GAIN. AC CORDINGLY A FRESH ASSESSMENT WAS PASSED BY THE ASSESSING OFFICER UNDE R SECTION ITA NO. 1866/KOL/2019 ASS ESSMENT YEAR: 2007-2008 M/S.BATA INDIA LIMITED 3 263/154/263/143(3) OF THE ACT VIDE AN ORDER DATED 2 7.12.2016 DETERMINING THE LONG-TERM CAPITAL GAIN CHARGEABLE T O TAX IN THE HANDS OF THE ASSESSEE AT RS.52,26,74,400/-. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 263/154/263/143(3) OF THE ACT, AN APPEAL WAS PREFER RED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS). MEANWHILE THE APPEAL F ILED BY THE ASSESSEE AGAINST THE SECOND ORDER PASSED UNDER SECTION 263 O N 28.03.2016 CAME TO BE DISPOSED OF BY THE TRIBUNAL WHEREBY THE ORDER DA TED 28.03.2016 PASSED BY THE LD. CIT UNDER SECTION 263 WAS QUASHED BY THE TRIBUNAL VIDE ORDER DATED 03.05.2017 PASSED IN ITA NO.753/KOL/201 6. TAKING NOTE OF THE SAID ORDER OF THE TRIBUNAL DATED 03.05.2017, TH E LD. CIT(APPEALS) HELD VIDE HIS APPELLATE ORDER DATED 02.04.2017 THAT THE ENTIRE PROCEEDINGS EMANATING FROM THE ORDER OF THE LD. PRINCIPAL CIT D ATED 28.03.2016 PASSED UNDER SECTION 263 INCLUDING THE CONSEQUENTIA L ORDER PASSED BY THE ASSESSING OFFICER DATED 27.12.2016 AS WELL AS THE A PPEAL FILED BY THE ASSESSEE AGAINST THE SAID ORDER HAVE BECOME INFRUCT UOUS HAVING NO LEGS TO STAND. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEAL S), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, BOTH THE ORDERS PASSED BY THE LD. PRI NCIPAL CIT UNDER SECTION 263 IN THE PRESENT CASE ON 15.03.2013 AND 2 8.03.2016 HAVE ALREADY BEEN QUASHED BY THE TRIBUNAL VIDE ITS COMMO N ORDER DATED 03.05.2017 (SUPRA) AND EVEN THE ASSESSMENT ORDER PA SSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) READ WITH SE CTION 263 ON 28.03.2015 HAS BEEN CANCELLED BY THE TRIBUNAL HOLDI NG THE SAME AS INFRUCTUOUS VIDE AN ORDER DATED 12.10.2018 PASSED I N ITA NO. 2542/KOL/2017. ALTHOUGH THE LD. D.R. HAS SUBMITTED THAT THE ORDER OF THE TRIBUNAL DATED 03.05.2017 (SUPRA) QUASHING BOTH THE ORDERS PASSED BY THE LD. PRINCIPAL CIT UNDER SECTION 263 HAS BEEN CH ALLENGED BY THE ITA NO. 1866/KOL/2019 ASS ESSMENT YEAR: 2007-2008 M/S.BATA INDIA LIMITED 4 REVENUE IN AN APPEAL FILED BEFORE THE HONBLE CALCU TTA HIGH COURT, HE HAS NOT BEEN ABLE TO BRING ANYTHING ON RECORD TO SHOW T HAT THE SAID ORDER OF THE TRIBUNAL DATED 03.05.2017 HAS BEEN REVERSED OR DISTURBED BY THE HONBLE JURISDICTIONAL HIGH COURT. THE POSITION AT THIS POINT OF TIME THUS IS THAT THE ORDER PASSED BY THE LD. PRINCIPAL CIT D ATED 28.03.2016 UNDER SECTION 263 STANDS CANCELLED BY THE TRIBUNAL AND CO NSEQUENTLY THE PROCEEDINGS EMANATING FROM THE SAID ORDER INCLUDING THE CONSEQUENTIAL ORDER DATED 27.12.2016 PASSED BY THE ASSESSING OFFI CER AS WELL AS THE APPEALS ARISING FROM THE SAID ORDER OF THE ASSESSIN G OFFICER HAVE BECOME INFRUCTUOUS AS RIGHTLY HELD BY THE LD. CIT(APPEALS) VIDE HIS IMPUGNED ORDER. WE, THEREFORE, FIND NO INFIRMITY IN THE IMPU GNED ORDER OF THE LD. CIT(APPEALS) AND UPHOLDING THE SAME, WE DISMISS THE APPEAL FILED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON OCTOBER 29, 2 020. SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE-PRESIDENT KOLKATA, THE 29 TH DAY OF OCTOBER, 2020 COPIES TO : (1) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(1), KOLKATA, ROOM NO. 23, 7 TH FLOOR, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 4 TH FLOOR, KOLKATA-700069 (2) M/S. BATA INDIA LIMITED, 6A, S.N. BANERJEE ROAD, KOLKATA-700013 (3) COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA; (4) COMMISSIONER OF INCOME TAX- , KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.