Hindusthan National Glass &Industries Limited v. Commissioner Of Income Tax,Kolkata- Ii

IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (Income Tax)ORIGINAL SIDE HINDUSTHAN NATIONAL GLASS &INDUSTRIES LIMITED -Versus- COMMISSIONER OF INCOME TAX,KOLKATA- II BEFORE : THE HON’BLE JUSTICE SURYA PRAKASH KESARWANIAndTHE HON’BLE JUSTICE RAJARSHI BHARADWAJDate : 15[th] January, 2024 Appearance:Ms. Swapna Das, Adv.…for the appellant Mr. Smita Das De, Adv....for the respondent. The Court : Heard learned counsel for theappellant/assessee and learned standing counsel for therespondent/department. Learned counsel for the appellant states that in thematter of the assessee in ITAT/74/2022, this Court passed thefollowing order: “The Court : There is a delay of 769 days infiling the appeal.On perusal of the relevant dates we findthat the appellant/revenue be entitled to thebenefit of the order passed by the Hon’ble Supreme Court extending the period of limitation forpreferring appeals under various statutes.For such reason the application is allowedand the delay is condoned. ITAT/74/2022 This appeal filed by the revenue underSection 260A of the Income Tax Act, 1961 (the Actfor brevity) is directed against the order dated31.12.2019 passed by the Income Tax AppellateTribunal “C” Bench (Tribunal) in ITA/Kol/2018 forthe assessment year 2012-13. The revenue has raised the followingsubstantial questions of law for consideration :-i)Whether on the facts and in the circumstancesof the case and in law the Learned Income TaxAppellate Tribunal erred in deleting theadjustment of Rs.6,04,61,794/- made by theAssessing Officer/Transfer Pricing Officer forInternational Transaction in respect to thecorporate guarantee to its Associated Agencies?ii)Whether on the facts and in the circumstancesof the case and in law the Learned Income TaxAppellate Tribunal erred in ignoring the factthat the corporate guarantee extended by theassessee company to its Associated Agency isan international transaction as perexplanation to Section 92B with ret4rospectiveeffect from 01/04/2002 and accordingly anarm’s length Charge should be computed inrelation to the same ? iii)Whether on the facts and in the circumstancesof the case and in law the Learned Income TaxAppellate Tribunal erred in not appreciatingthat the corporate guarantee has providedbenefit to the Associated Agency and theassessee should have charged a fee for itsservices in the form of guarantee charge ?iv)Whether on the facts and in the circumstancesof the case and in law the Learned Income TaxAppellate Tribunal erred in not appreciatingthat by providing corporate guarantee,subsidiary’s creditworthiness increases andhence postulates provision of services byholding company ? v)Whether on the facts and in the circumstancesof the case and in law the Learned Income TaxAppellate Tribunal erred in deleting theaddition made u/s 14A of the Act read withRule 8D of the Income Tax Rules, 1962 ?vi)Whether on the facts and in the circumstancesof the case and in law the Learned Income TaxAppellate Tribunal erred in consideringmiscellaneous income as eligible deduction u/s80IC ? We have heard Mr. Prithu Dudhoria, learnedstanding Counsel for the appellant/revenue and Mr.Pratyush Jhunjhunwala, learned Advocate appearingfor the respondent. The learned Advocate appearingfor the respondent submitted that as againstrespondent/assessee proceedings have been initiatedunder the provisions of the Insolvency & BankruptcyCode and the National Company Law Tribunal has appointed Insolvency Resolution Professional andMoratorium has been granted. To the said effectthe order dated 21[st] October 2021 in the matter ofDBS BANK VS. HINDUSTHAN NATIONAL GLASS ANDINDUSTRIES LTD. has been placed before this Courtwhich shall form part of the record. In the light of the above development therevenue cannot proceed with this appeal. Accordingly, the appeal stands disposed offor the aforementioned reasons. Application being GA/2/2022 stands closed. Consequently, the substantial questions oflaw are left open.” She submits that the present appeal may also be disposed of in terms of the aforequoted order. appointed Insolvency Resolution Professional andMoratorium has been granted. To the said effectthe order dated 21[st] October 2021 in the matter ofDBS BANK VS. HINDUSTHAN NATIONAL GLASS ANDINDUSTRIES LTD. has been placed before this Courtwhich shall form part of the record. In the light of the above development therevenue cannot proceed with this appeal. Accordingly, the appeal stands disposed offor the aforementioned reasons. Application being GA/2/2022 stands closed. Consequently, the substantial questions oflaw are left open.” She submits that the present appeal may also be disposed of in terms of the aforequoted order. In view of the aforesaid and with consent of learnedcounsel for the parties, this appeal (ITA/199/2009) is disposedof in terms of the aforequoted order passed in ITAT/74/2022(Principal Commissioner of Income Tax-2, Kolkata v. M/s.Hindusthan National Glass & Industries). (SURYA PRAKASH KESARWANI, J.) (RAJARSHI BHARADWAJ, J.) As.