Itat/14/2024 Ia No: Ga/1/2024, Ga/2/2024 Principal Commissioner Of Income Tax Central, Kolkata 2 v. M/S Sattava Developers Pvt Ltd

IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/14/2024IA NO: GA/1/2024, GA/2/2024PRINCIPAL COMMISSIONER OFINCOME TAX CENTRAL, KOLKATA 2VS M/S SATTAVA DEVELOPERS PVT LTD BEFORE :THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAM ANDTHE HON’BLE JUSTICE SUPRATIM BHATTACHARYADATE : 5 February, 2024. Appearance :Mr. Soumen Bhattacharjee, Adv...for appellantMr. Pratyush Jhunjhunwala, Adv.…for respondent The Court :- We have heard learned Counsel on either side. It appears that there is a delay of 770 days in filing the appeal. Though the explanation offered is not fully convincing, yet this being anappeal filed under Section 260A of the Income Tax Act, 1961, is required toexamine whether any substantial questions of law arose for consideration. Weexercise our discretion and condone the delay in filing the appeal. This appeal filed by the revenue is directed against the order dated16.4.2021 passed by the Income Tax Appellate Tribunal “A” Bench Kolkata (theTribunal) in ITA No. 2418/Kol/299 for the assessment year 2009-2010. The revenue has raised the following substantial questions of law forconsideration:- A)Whether the Learned Income Tax Appellate Tribunal committedsubstantial error in law by not considering that the Assessing Officernever formed an opinion regarding taxability of compensation in lightof expressive provision of Section 28(1) of the Income Tax Act?substantial error in law by not considering that the Assessing Officernever formed an opinion regarding taxability of compensation in lightof expressive provision of Section 28(1) of the Income Tax Act? B)Whether, on the facts and in the circumstances of the case, theIncome Tax Appellate Tribunal is legally correct in holding that this isa clear case of change of opinion and hence the re-opening ofassessment is bad in law but failed to consider that there is nothingin the original assessment order dated 08.12.2011 which indicatesthat the Assessing Officer has applied his mind and had provided asconscious opinion and no opinion was framed by the AssessingOfficer in Original assessment order and therefore the change ofopinion does not arise? We have carefully perused the order passed by the learned Tribunal andwe find that the factual finding recorded by the Commissioner of Income Tax(Appeals) could not be controverted by the department and the Tribunal hascome to the factual conclusion that the reopening of the assessment is a clearcase of change of opinion. Furthermore, there was no allegation that theassessee failed to fully and truly disclose all material facts required for theassessment. Thus, we find that the learned Tribunal was right in dismissingthe appeal filed by the revenue and no grounds have been made to interferewith the said order. Accordingly, the appeal is dismissed and the substantial questions of laware answered against the revenue. Consequently, the applications stand disposed of. . (T.S. SIVAGNANAM)CHIEF JUSTICECHIEF JUSTICE (SUPRATIM BHATTACHARYA,J.)