PRINCIPAL COMMISSIONER OF INCOME TAX CENTRAL 2 KOLKATA V. M/S SALARPURIA PROPERTIES PVT LTD

ITAT/167/2023

AI Insights

The case involves an appeal by the Principal Commissioner of Income Tax Central 2, Kolkata against M/s Salarpuria Properties Pvt Ltd concerning the assessment orders for the assessment years 2010-11 to 2013-14. The core issue was the application of Section 263 of the Income Tax Act, 1961, where the revenue contended that the Assessing Officer (AO) had erred in allowing a deduction under Section 80IB for the year 2010-11 while disallowing it in subsequent years without proper reasoning. The Tribunal had earlier quashed the post-search assessment order under Section 153A, which was a significant part of the dispute. The High Court, after considering the facts and the previous Tribunal's decision, upheld the Tribunal's decision, noting that the order in question was no longer valid and thus could not be challenged under Section 263.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 719255 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 30-08-2023
• Assessment Year: misc
• Other Referred Cases: Malabar Industries vs. Income Tax Officer
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: J P KHAITAN; AKHILESH GUPTA; INDRANIL BANERJEE
• Assessee Lawyers: TILAK MITRA
• Keywords: Assessment; Condonation of delay; Income Tax; Section 153A; Section 263; Malabar Industries
• Section: 263; 153A; 260A; 153(1); 148(3)

Judgement Text

"OD-2 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE ITAT/167/2023 IA NO: GA/1/2023, GA/2/2023 PRINCIPAL COMMISSIONER OF INCOME TAX CENTRAL 2 KOLKATA VS M/S SALARPURIA PROPERTIES PVT LTD. BEFORE : THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAM And THE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : 30TH August, 2023 Appearance : Mr. Tilak Mitra, Adv. …for apellant Mr. J.P. Khaitan, Sr. Adv. Mr. Akhilesh Gupta, Adv. Mr. Indranil Banerjee, Adv. ….for respondent The Court : - We have heard Mr. Tilak Mitra, learned standing Counsel for the appellant/revenue and Mr. J P Khaitan, learned Senior Advocate duly assisted by Mr. Akhilesh Gupta, learned Advocate for the respondent/assessee. There is a delay of 181 days in filing the appeal. We have perused the affidavit filed in support of the condone delay petition and we find sufficient cause has been shown for not preferring the appeal within the period of limitation and, accordingly, the application is allowed. The delay in filing the appeal is condoned. This appeal by the revenue filed under Section 260A of the Income Tax Act, 1961 (the Act) is directed against the order dated 3rd August, 2022 passed by the Income Tax Appellate Tribunal “A” Bench, Kolkata in ITA/130/Kol/2021 for the assessment year 2010-11. The revenue has raised the following substantial questions of law for consideration : 2 “I) Whether the Learned Tribunal has erred in law and in fact in allowing the appeal of the Assessee in respect of the action taken under Section 263 of the Act, despite the fact that the AO passed the assessment order for assessment year 2010-11, 2011-12, 2012-13 and 2013-14 on the same date in which the assessee claim of deduction u/s. 80IB was allowed in the Assessment year 2010- 11 but disallowed in Assessment year 2011-12, 2012-13, 2013-14 ? II) Whether the Learned Tribunal has erred in law and in fact in overlooking that the Assessing Officer did not apply his mind in the assessment year 2010-11 which makes the order erroneous and prejudicial to the interest of the revenue ?” The assessment for the year under consideration for AY 2010-11 under section 148(3) of the Act were completed on 26.3.2013. Subsequently, a search was conducted and post search the order under Section 153(1) was passed on 31.12.2017. This order was subject matter of challenge before the Tribunal by the assessee in ITA/2094/Kol/2017, ITA SSA No. 42/Kol/2019. The Tribunal by a common order dated 10.5.2022 allowed the assessee’s appeal and set aside the order passed under Section 153A of the Act. Prior to the same, the Principal Commissioner of Income Tax (Central), Kolkata 2 (PCIT) issued notice under Section 263 of the Act dated 16.03.2020 proposed to refuse assessment of post search order passed under Section 153A of the Act dated 31.12.2017. The learned Tribunal on considering the facts and circumstances of the case and also taking note of the decision of the Hon’ble Supreme Court in Malabar Industries, reported in 243 ITR 83(SC) and in particular, taking note of the order passed by the learned Tribunal dated 10.05.2021 dismissed the appeal filed by the revenue. In our view, the learned Tribunal was perfectly justified in dismissing the appeal as the order which was sought to be refused by the PCIT in exercise of its powers under Section 263 of the Act was no longer in existence as the same had been quashed by the Tribunal by order dated 10.05.2022. Further, we note that as against the order passed by the learned Tribunal dated 10.05.2022 the revenue had preferred the appeal 3 before this Court in ITAT 157 of 2023 which was dismissed by judgment dated 2.8.2023. In the light of the above, we are of the view that the learned Tribunal was right in dismissing the appeal filed by the revenue. In the result, the appeal is dismissed and the substantial questions of law are answered against the revenue. Consequently, the applications stand closed. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.) Pkd/GH "