Itat/261/2023 Ia No: Ga/2/2023 Principal Commissioner Of Income Tax 2 Kolkata v. Misrilall Mines Pvt Ltd

IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/261/2023IA NO: GA/2/2023PRINCIPAL COMMISSIONER OF INCOME TAX 2 KOLKATAVSMISRILALL MINES PVT LTD BEFORE :THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 22[nd] January, 2024 Appearance : Ms. Smita Das De,Adv.Mr. Prithu Dudhoria, Adv.…for appellantMr. Ananda Sen, Adv...for respondent The Court :- This appeal by the revenue filed under section 260A of theIncome Tax Act [the Act] is directed against the order dated 28.3.2023 passedby the Income Tax Appellate Tribunal “C” Bench, Kolkata [Tribunal] in ITANo.259/Kol/2022 for the assessment year 2017-18.Income Tax Act [the Act] is directed against the order dated 28.3.2023 passedby the Income Tax Appellate Tribunal “C” Bench, Kolkata [Tribunal] in ITANo.259/Kol/2022 for the assessment year 2017-18. The revenue has raised the following substantial questions of law forconsideration. [I]Whether on the facts and in the circumstances of the case theLearned Income Tax Appellate Tribunal was justified in law to quashthe order under Section 263 of the IT Act, 1961 on the ground thatPr. CIT-II, Kolkata has o revisionary jurisdiction on debatable matte? Whether on the facts and in the circumstances of the case theLearned Income Tax Appellate Tribunal was justified in law toobserve that the issue of adjustment of setting off and carry forwardcapital loss [STT Paid] with non STT paid capital gain is a debatable issue, despite the fact that the issue of long term profit/loss onshares, securities and mutual fund is categorically covered underSection 10[38] of the IT Act, 1961 and can not be termed asdebatable? Heard learned Advocates on either side. The short question involved in this appeal is whether the PrincipalCommissioner of Income Tax should have exercised jurisdiction under Section263 of the Act. The learned Tribunal has elaborately examined the factualposition and noted that there were two views possible which should be taken bythe assessing officer and the assessing officer has taken one of the views. Thus,the Tribunal came to the conclusion that the jurisdiction under Section 263 isnot available to the PCIT when the case is a debatable issue. In this regard,several decisions have been referred to by the Tribunal, in particular, thedecision of the Hon’ble Supreme Court in Malabar Industrial Co. Ltd. And MaxIndia Ltd.. Thus, we find that the conclusion of the Tribunal cannot bedoubted. In the result, the appeal is dismissed and the substantial questions oflaw are answered against the revenue. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)