Ita/70/2018 Principal Commissioner Of Income Tax, Central-I, Kolkata v. M/S. Binani Industries Limited

OD – 3 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITA/70/2018PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-I, KOLKATAVS.M/S. BINANI INDUSTRIES LIMITED BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAM AndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 24[th] August, 2022 Appearance :Ms. Smita Das De, Adv.….for appellantMr. Madhur Agarwal Adv.Mr. Pranit Bag, Adv.Mr. A.K. Dey, Adv.…for respondent The Court : This appeal filed by the revenue under Section 260A of theIncome Tax Act, 1961 (the Act, for brevity) is directed against the order datedMarch 02, 2016, passed by the Income Tax Appellate Tribunal, “A” Bench,Kolkata in I.T.A. No.144/Kol/2013 for the assessment year 2009-10. The appeal was admitted on the following substantial question of law :-“Whether the amount of Rs.12,65,75,000/-, received by the assessee onaccount of forfeiture of shares would be added to the book profits of the assessee for the purpose of taxation under section 115JB of the IncomeTax Act, 1961?” We have heard Ms. Smita Das De, learned standing Counsel appearing forthe appellant/revenue and Mr. Madhur Agarwal, learned Counsel appearing forthe respondent/assessee. In our considered view, we need not decide the substantial question of lawas has been framed by this Court on account of certain facts. The DeputyCommissioner of Income Tax (Central)-XXVIII, Kolkata (DCIT) has passed anorder on 24[th] December, 2012 under Section 251/143(3) of the Act by givingeffect to the order dated 26[th] November, 2012 passed by the Commissioner ofIncome Tax (Appeals), Central-1, Kolkata in the assessee’s appeal for theassessment year under consideration, A.Y. 2009-10. The following computation of the book profit as per the directions of theCIT was made in his order dated 26[th] November, 2012 :- Net profit as per Profit & Loss account Less : Relief allowed in appeal as per Para 12Revised net profit for the purpose of section 115JBLess : Relief allowed as per Para 9 of the order Rs. 33,90,47,340Rs. 12,65,75,000Rs. 21,24,72,340Rs. 2,18,09,000Rs. 19,06,63,340Rs. 33,16,28,269 (-) Rs. 14,09,64,929 Rs. 1,37,12,550 (-) Rs. 12,72,52,379 Less : Dividend income Add : Disallowance made by the assessee u/s. 14ABook Profit Tax thereon Less : TDS Refundable NIL -Rs.30,51,616/ Rs.30,51,616/- From the above computation, it is seen that the book profit is a negativebalance. Therefore, even assuming that we are to take it for consideration thequestion of law which has been admitted and assuming such question is decidedin favour of the revenue, the result would be the case where the revenue will beneutral. Therefore, we are of the view that no useful purpose would be served bytaking up the question for adjudication and all that we can observe to leave thesubstantial question of law upon considering the factual situation in theassessee’s case. For the above reason, the substantial question of law as framed is leftopen and the appeal is dismissed on the ground that the book profit ascomputed under Section 115JB is a negative balance. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) SN/S. Chandra