Itat/272/2022 Ia No: Ga/1/2022, Ga/2/2022 Principal Commissioner Of Income Tax-1, Kolkata v. The Court : - Heard Learned Counsel For Either Side. There Is A Delay Of 82 Days In Filing The Appeal

OD–4 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/272/2022IA NO: GA/1/2022, GA/2/2022PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOLKATAVS.SMT. RACHANA TODI BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 31[st] January, 2023 Appearance :Mr. Soumen Bhattacharjee, Adv.…for appellant.Mr. Dibanath Dey, Adv.Ms. Pallavi Pain, Adv.…for respondent GA/1/2022 The Court : - Heard learned Counsel for either side.There is a delay of 82 days in filing the appeal. Upon perusal of the affidavit filed in support of the condone delay application weare satisfied that sufficient cause has been shown by the appellant/revenue for notpreferring the appeal within the period of limitation. For such reason the application isallowed and the delay in filing the appeal is condoned. This appeal filed by the revenue under Section 260A of the Income Tax Act,1961(the Act for brevity) is directed against the order dated 31.3.2022 passed by theIncome Tax Appellate Tribunal “B” Bench Kolkata in ITA No. 137/Kol/2021 for theassessment year 2016-17. The Revenue has raised the following substantial questions of law forconsideration:- A.Whether the Learned Tribunal has committed substantial error in law inoverlooking the incidence of non-establishment of transferred landed propertyas ‘Agricultural Land’ as per provision Sec.2(14)(iii) of the Act?overlooking the incidence of non-establishment of transferred landed propertyas ‘Agricultural Land’ as per provision Sec.2(14)(iii) of the Act? B.Whether the Learned Tribunal has committed substantial error in law inignoring the required implementation of the provision of Section 54B relatingto transfer/sale of claimed Agricultural Land by the assessee?ignoring the required implementation of the provision of Section 54B relatingto transfer/sale of claimed Agricultural Land by the assessee? C.Whether the Learned Tribunal has committed substantial error in law in notappreciating that the PCIT has correcting by invoke the power under Section263 of the Income Tax Act as the assessment order was erroneous in so far asit was prejudicial to the interest of revenue?appreciating that the PCIT has correcting by invoke the power under Section263 of the Income Tax Act as the assessment order was erroneous in so far asit was prejudicial to the interest of revenue? ITAT/272/2022 The short question which falls for consideration in this appeal is whether theTribunal was justified in interfering with the order passed by the Principal Commissionerof Income Tax – 1, Kolkata (PCIT) in exercising its power under Section 263 of the Act.The learned Tribunal has embarked upon fact finding exercise to ascertain as towhether the twin test which are required to be fulfilled for invoking the power underSection 263 of the Act stands attracted. After examining the facts the learned Tribunalhas found that the very basis on which the PCIT had invoked its power under Section263 of the Act was absent. Furthermore, the learned Tribunal also pointed outassuming that the order of the PCIT is upheld the assessing officer will not be in aposition to implement the order when it is an undisputed fact that the assessee has notmade any claim under Section 54B of the Act. Furthermore, the learned Tribunal tooknote of the term “record” occurring in explanation (1)(b) of the Section 263 of the Actand held that the “record” shall include all documentary evidences which weresubmitted before the assessing officer and also those submitted before the PCIT inresponse to the show-cause notice issued under Section 263 of the Act. Further it waspointed out that PCIT is required to examine all documentary evidences including those which were before the assessing officer and submitted before him. On fact the Tribunalfound that the assessee in the return of income as w3ell as the computation of incomedid not make any claim for exemption under Section 54B of the Act. Furthermore, thelearned Tribunal found that PCIT did not record any satisfaction based on correct andverifiable set of facts relating to the claim of deduction found under Section 54B andreflect of agricultural income in the return to fulfil the mandatory requirement ofSection 54B for the land put to agricultural use. Therefore, the learned Tribunal cameto the conclusion that exercise of the jurisdiction under Section 263 of the Act is totallyerroneous. That apart the learned Tribunal also took note of the various decisions as tothe manner in which the enquiry is required to be conducted by the PCIT before heassumes jurisdiction under Section 263 of the Act. Thus we find that there is noquestions of law much less substantial questions of law arising out for consideration inthis appeal. Accordingly, the appeal fails and dismissed. Consequently, the stay application also stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)