Ia No:ga/2/2015 (Old No.:ga/1518/2015) Commissioner Of Income Tax, Kolkata-1, Kolkata v. Hooghly Mills Projects Ltd

IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/73/2015 IA No:GA/2/2015 (Old No.:GA/1518/2015)COMMISSIONER OF INCOME TAX, KOLKATA-1, KOLKATAVERSUS HOOGHLY MILLS PROJECTS LTD., C/o, SALARPURIA JAJODIA & CO. BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 10th May, 2022. Appearance:- …for Appellant Ms. Smita Das De, Adv. Mr. Siddhartha Das, Adv. Mr. Asim Chowdhury, Adv. Mr. Sovan Sen, Adv. … for Respondent The Court : This appeal by the revenue filed under Section 260A ofthe Income Tax Act, 1961 (the Act for brevity) is directed against the orderdated 1[st] August, 2014 passed by the Income Tax Appellate Tribunal “A”Bench, Kolkata in I.T.A. No. 1729/Kol/2011 for the assessment year2005-06. The revenue has raised the following substantial questions of law forconsideration :- i)Whether on the facts and in the circumstance of the case, theLearned Tribunal was justified in law in deleting the addition ofRs.11,87,00,000/- made by the Assessing Officer on account ofdeemed dividend income under section 2(22)(e) of the said Act ?Learned Tribunal was justified in law in deleting the addition ofRs.11,87,00,000/- made by the Assessing Officer on account ofdeemed dividend income under section 2(22)(e) of the said Act ? ii)Whether on the facts and in the circumstances of the case, theLearned Tribunal was justified in law in accepting that theregistered shareholding of the assessee company isRs.10,99,300/- shares only as per shareholder register of theassessee as well as M/s. Mega Resources Ltd. despite the facthat the assessee company was holding Rs.13,90,100/- (morethan 10%) number of equity shares ?Learned Tribunal was justified in law in accepting that theregistered shareholding of the assessee company isRs.10,99,300/- shares only as per shareholder register of theassessee as well as M/s. Mega Resources Ltd. despite the facthat the assessee company was holding Rs.13,90,100/- (morethan 10%) number of equity shares ? We have heard Ms. Smita Das De, learned standing counsel for theappellant/revenue and Mr. Siddhartha Das, learned Advocate appearing forthe respondent/assessee. It is not disputed before us that identical issue was considered by usin the assessee’s own case in ITAT No.153 of 2017 dated 17[th] November,2021 and ITAT No. 267 of 2017, dated 25[th] November, 2021. In those cases,we have taken note of the decision rendered in ITA No. 97 of 2011 dated13[th] June, 2016 in the assessee’s own case for the assessment year 2005-06 and dismissed the appeal. The operative portion of the judgment readsas follows:- “It is not disputed before us by the Revenue that identical substantialquestions of law in the assessee’s own case for the assessment year 2005-06 were considered by the Hon’ble Division Bench in ITA No.97 of 2011 andby judgment dated 13.06.2016 the appeal was dismissed and the questionswere answered against the Revenue. The said judgment reads as follows: “The appeal is directed against a judgment and order dated 17[th]September, 2010 passed by the Income Tax Appellate Tribunal, Bench-C,Kolkata in ITA 914/Kol/2010 pertaining to the assessment year 2005-06 bywhich the appeal preferred by the assessee was allowed and the order underSection 263 was set aside. The aggrieved revenue has come up in appeal. The followng question of law was formulated at the time of admission of theappeal: “I. Whether the learned Tribunal below committed substantial errorof law in setting aside the order under Section 263 of the Income Taxholding the same is not erroneous and prejudicial to the intrest of theRevenue, notwithstanding the fact that the same Bench in the case of M/s.Hooghly Mills Project Ltd. in ITA No. 913/Kol/2010 has held that the orderof the Assessing Officer is erroneous and prejudicial to the interest of theRevenue. The followng question of law was formulated at the time of admission of theappeal: “I. Whether the learned Tribunal below committed substantial errorof law in setting aside the order under Section 263 of the Income Taxholding the same is not erroneous and prejudicial to the intrest of theRevenue, notwithstanding the fact that the same Bench in the case of M/s.Hooghly Mills Project Ltd. in ITA No. 913/Kol/2010 has held that the orderof the Assessing Officer is erroneous and prejudicial to the interest of theRevenue. II. Whether the learned Tribunal below committed substantial error oflaw in cancelling order under Section 263 of the Act wherein theassessment was set aside on the grounds of failure to make enquiry andaddition under Section 36(i)(v)(a) read with Section 2(24)(x) of the Act onaccount of Employees’ Contribution to Provident Fund due to non-deposit ofcontribution within the date to the appropriate authority. Mr. Khaitan, appearing for the assessee submitted that the firstquestion is unmeritorious. In the case of Hooghly Mills Project Ltd. thepoint of applicability of Section 2(22)(e) was raised on the basis that theshareholding was more than 10%; whereas in the case before us, theshareholding is restricted to 5.27%. Therefore, there was no question ofapplicability of any deemed dividend. In so far as the second question is concerned, he pointed out that thepayment of arrear provident fund was in accordance with the order passedby the High Court. The same practice, as a matter of fact, he added, hadbeen continuing for some time. In respect of one of the earlier years, theassessing Office had disallowed the payment of provident fund though madein pursuance of order of Court, but subsequently that was allowed by theCIT(Appeal). He, therefor, submitted that both the questions raised by therevenue are without any substance. Mr. Sinha, learned Advocate appearing for the revenue is unable todispute any of he submissions advanced by Mr. Khaitan. In that view of thematter, both the questions are answered in the negative and against therevenue. The appeal, is, thus dismissed. In the light of the above decision which binds the Revenue, thepresent appeal cannot be entertained. Accordingly, he appeal standsdismissed and the substantial questions of law are answered against theRevenue.” Thus, following the above decision, the appeal filed by the revenue isdismissed and the substantial questions of law are answered against therevenue. Accordingly, the application being GA/2/2015 (Old No.:GA/1518/2015) stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) SN/GH.AR(CR)