Itat/266/2022 Ia No. Ga/1/2022, Ga/2/2022 Principal Commissioner Of Income Tax 13, Kolkata v. M/S Rosemary Vincom Llp

OD–2 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/266/2022IA NO. GA/1/2022, GA/2/2022PRINCIPAL COMMISSIONER OF INCOME TAX 13, KOLKATAVS.M/S ROSEMARY VINCOM LLP BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 10 FEBRUARY, 2023 Appearance :Ms. Smita Das De, Adv.…for appellantMr. S.M. Surana, Adv.…for appellant GA/1/2022 The Court : - Heard learned Counsel for the either side. It appears that there is a delay of 359 days in filing the appeal. On perusal of the affidavit filed in support of the petition we find that sufficientcause has been shown by the appellant for not preferring the appeal within the period oflimitation. Therefore, the application is allowed. The delay in filing the appeal iscondoned. ITAT/266/2022 This appeal by the revenue filed under Section 260A of the Income Tax Act, 1961(the Act) is directed against the order dated 23[rd] June, 2021 passed by the Income TaxAppellate Tribunal “B” Bench Kolkata (the Tribunal) in ITA No. 651/Kol/2021 for theassessment year 2015-2016. The revenue has raised the following substantial questionsof law for consideration :- a.Whether on the facts and circumstances of the case the Learned Tribunalwas justified in law to dismiss the Misc. Appeal filed by the revenue on theground that the said appeal had no merit ?was justified in law to dismiss the Misc. Appeal filed by the revenue on theground that the said appeal had no merit ? b.Whether on the facts and circumstances of the case the Learned Tribunalwas justified in observing that the case of the assessee pertains to takeover and not conversion ?was justified in observing that the case of the assessee pertains to takeover and not conversion ? c. Whether on the facts and circumstances of the case the Learned Tribunalwas justified in law to observe that Pr. Commissioner of Income Tax doesnot have the power to convert the limited scrutiny into a complete scrutinywithout considering the CBDT instruction No.5/2016 dated 14.07.2016 inthe order dated 23.06.2021 passed in ITA No.65/Kol/2021. d. Whether on the facts and circumstances of the case the Learned Tribunalwas justified in law to hold that both the ITA No.65/Kol/2021 dated23.06.2021 and ITA No.66/Kol/2021 pertains to two different issuesignoring the fact the assessee holds two PAN Numbers being AAFCR1320Qand against which separate appeals were filed under tworespective PAN Numbers, one against the Order of the Commissioner ofIncome Tax Appeal-2, Kolkata and another against the Revision Orderpassed by the Pr. Commissioner of Income Tax-16, Kolkata under section263 of the said Act ? The present appeal filed by the revenue is against an order passed by the learnedTribunal in a miscellaneous application filed by the revenue in MA No. 28/Kol/2021 inITA No. 66/Kol/2021. The revenue contended before the Tribunal that two orders havebeen passed by the Tribunal i.e. one on 23.06.2021 and the other order on 24.06.2020in respect of the very same assessment year and, therefore, the mistake has to berectified and one of the order is to be recalled. The learned Tribunal took note of thefactual position and has pointed out that two orders have been passed by the learned Tribunal in two appeals arising out of two different orders; one passed by the PCITunder Section 263 of the Act, and another passed by the Commissioner of Income Tax,(Appeals) 2 Kolkata under Section 250 of the Act. The learned Tribunal has pointed outthat the department could not dispute this factual position which was apparent fromthe records. Therefore, the miscellaneous application was dismissed. Tribunal in two appeals arising out of two different orders; one passed by the PCITunder Section 263 of the Act, and another passed by the Commissioner of Income Tax,(Appeals) 2 Kolkata under Section 250 of the Act. The learned Tribunal has pointed outthat the department could not dispute this factual position which was apparent fromthe records. Therefore, the miscellaneous application was dismissed. In our considered view since the two orders passed by the learned Tribunalarising out of the appeals filed against two different orders, one passed by the PCIT andthe one passed by the CITA, the dismissal of the miscellaneous application passed bythe learned Tribunal is fully justified. If the revenue is aggrieved by the two orderspassed by the learned Tribunal nothing prevents them from filing appeals before thisCourt, against these two orders for which no liberty is required from this Court as theStatute provides an appellate remedy to the aggrieved person, who is aggrieved by theorders passed by the Tribunal. In the result, we find there is no substantial questions of law arising out forconsideration in this appeal. Accordingly, the appeal is dismissed with theaforementioned observation. Consequently, the stay petition stands closed. (T.S. SIVAGNANAM, J.) Pkd/GH. (HIRANMAY BHATTACHARYYA, J.)