Itat/222/2023 Of Principal Commissioner Of Income Tax 1 Kolkata v. M/S The Peerless General Finance And Investment Co Ltd

OD-8 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT 222 OF 2023IA NO: GA/1/2023, GA/2/2023PRINCIPAL COMMISSIONER OF INCOME TAX 1, KOLKATA-Versus- M/S. THE PEERLESS GENERAL FINANCE AND INVESTMENT CO. LTD. BEFORE: The Hon’ble T.S. SIVAGNANAM, CHIEF JUSTICE -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 17[th ]November, 2023 Appearance :Ms. Smita Das De, Adv...for the appellant Mr. J.P. Khaitan, Sr. Adv.Mr. Akhilesh Gupta, Adv.Mr. Pranav Sharma, Adv.…for the respondent The Court : This appeal filed by the revenue is time barred and there is a delay of 846 days in filing the appeal. We have heard Ms. Smita Das De, learned standing Counsel appearing for the appellant and Mr. J.P. Khaitan, learned senior Counsel appearing forthe respondent. We find reasonable explanation has been given by the Department fornot preferring the appeal within time. Therefore, considering the facts and circumstances we exercise discretion and condone the delay in filing theappeal. The application IA No: GA/1/2023 is allowed. This appeal by the revenue is directed against the order dated 3[rd]December, 2020 passed by theIncome Tax Appellate Tribunal, “A” Bench,Kolkata (Tribunal) in ITA No. 1005/Kol/2019 for the assessment year 2008-09.The revenue has raised the following substantial questions of law forconsideration :- i)Whether in the facts and the circumstances of the case the Tribunal wasjustified in law to uphold the order of the CIT(A) holding inter alia thatreopening of assessment on the basis of audit objection was notsustainable in law despite the fact that Assessing Officer has reason tobelieve that income chargeable to tax has escaped income for therelevant Assessment Year ? ii)Whether in the facts and the circumstances of the case the Tribunal wasjustified in law to uphold the order of the CIT(A) on the ground thatreopening of assessment order section 147 of the said Act as withoutissuing a notice under Section 143(2) since the assessee did not file anyreturn in response to Notice under Section 148 of the Act despite wellsettled proposition of law that mere non-issuance of a Notice underSection 143(2) of the Act will not vitiate and/or make the reassessmentnull and void in the eye of law although notice under Section 143(1) wasduly issued along with questionnaire ? We have heard Ms. Smita Das De, learned standing Counsel appearingfor the appellant and Mr. J.P. Khaitan, learned senior Counsel appearing forthe respondent. After we have carefully gone through the order passed by the learnedTribunal which affirmed the order passed by the Commissioner of Income Tax(Appeals), we find the learned Tribunal on facts was satisfied that theAssessing Officer while initiating the reassessment proceedings beyond fouryears from the end of the relevant assessment year did not record reasonsprior to issuance of the notice that there was any failure on the part of theassessee to truly and fully disclose all materials. In this appeal such factualfinding cannot be substituted. Consequently, we find no substantial questions of law arising forconsideration in this appeal. The appeal is thus dismissed. The stay application IA No : GA/2/2023 is also dismissed. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)