Itat/272/2023 Ia No: Ga/1/2023, Ga/2/2023 Principal Commissioner Of Income Tax 1,Kolkata v. Infinity Infotech Parks Limited

OD-22 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION ORIGINAL SIDE ITAT/272/2023IA NO: GA/1/2023, GA/2/2023PRINCIPAL COMMISSIONER OF INCOME TAX1,KOLKATA VSINFINITY INFOTECH PARKS LIMITED BEFORE :THE HON'BLE THE CHIEF JUSTICE T.S SIVAGNANAM -A N D- THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYADATE : 19 APRIL, 2024. Appearance :Mr. Vipul Kundalia, Adv.Mr. Amit Sharma, Adv.….for appellantMr. Pratyush Jhunjhunwala, Adv.Mr. S. Rudra, Adv.Ms. Sreetapa Sinha, Adv.….for respondent The Court :- We have heard learned Counsel on either side. It appears that there is a delay of 940 days in filing the appeal. The delay isvehemently opposed by respondent assessee apart from that the assessee by filing anaffidavit in opposition and in the said affidavit the assessee has set out the followingfacts to condone the delay. This appeal filed by the revenue has become infructuous.For better appreciation the averments made in the said affidavit in opposition isquoted hereinbelow:- “g] I state that the order dated December 18, 2020, passed by the Tribunal isactually in favour of the revenue department as the Tribunal upheld the findingof the Principal Commissioner of Income Tax with respect to the maintainabilityof the proceedings under section 263 of the Act. I state that the revenuedepartment cannot be aggrieved by the direction of the Tribunal asking theAssessing Officer to independently examine the matter without being affected by the working provided by the Principal Commissioner of Income Tax andconsider subsequent decisions for the assessment year 2009-10, is inaccordance with law and just. I state that the appellant has failed to considerand appreciate that in proceedings under section 263 of the Act the AssessingOfficer cannot be handed over a loaded dice but has to independently examinethe issue again and that any submission opposing the aforesaid proposition iswholly arbitrary, erroneous and contrary to law. h] I state that the Assessing Officer in his give effect order dated September 30,2021, erroneously disallowed the claim for carry-forward loss and computed thedisallowance at Rs.5,90,10,694/- which was much more than the claimactually made by the respondent assessee. Further, I state that the AssessingOfficer failed to consider and appreciate the order dated October 30, 2019passed by the Commissioner of Income Tax [Appeals] which was binding uponhim and was also contrary to the direction given by the tribunal in its orderdated December 18, 2020. I state that the failure to consider the order datedOctober 30, 2019 and the incorrect computation were errors apparent on theface of the record and as such the respondent assessee preferred an applicationunder section 154 of the Act for rectification of the aforesaid errors. I state thatduring the pendency of the application under section 154 of the Act, theTribunal’s order dated June 16, 2022, for the assessment year 2009-10 hadbeen issued wherein the appeal of the revenue department was dismissed.Further, the Assessing Officer had himself passed the aforesaid necessary orderdated July 7, 2022 giving effect to the said order of CIT[A] dated October 30,2019 and computed the carry-forward loss for the assessment year 2009-10 tobe Rs.19,10,76,892/- thereby making the entire loss of Rs.3,99,13,429/-available to the respondent assessee for set-off in the assessment year 2015-16. I state that the Assessing Officer by his order November 16, 2022 allowed theaforesaid claim of carry-forward of loss of Rs.3,99,13,429/- in the assessmentyear 2015-16 as a result of which no dispute remains thereby rendering theinstant appeal to be infructuous. Copies of the orders dated September 30,2021 and November 16, 2022 are annexed hereto and are collectively marked“D”. I state that for the convenience of this Hon’ble Court, a chronology ofevents has been prepared providing in brief, the facts and list of dates for theassessment years 2009-10 and 2015-16 and a copy of the same is annexedhereto and marked “E”. I state that the Assessing Officer by his order November 16, 2022 allowed theaforesaid claim of carry-forward of loss of Rs.3,99,13,429/- in the assessmentyear 2015-16 as a result of which no dispute remains thereby rendering theinstant appeal to be infructuous. Copies of the orders dated September 30,2021 and November 16, 2022 are annexed hereto and are collectively marked“D”. I state that for the convenience of this Hon’ble Court, a chronology ofevents has been prepared providing in brief, the facts and list of dates for theassessment years 2009-10 and 2015-16 and a copy of the same is annexedhereto and marked “E”. The above facts are not in dispute and it is seen that much prior to theimpugned order passed by the Tribunal dated 18.12.2020 the order was passed by theCIT[A] dated 30.10.2019 by computing the carry-forward loss for the assessment2009-10 to be Rs.19,10,76,892/- and making the entire loss of Rs.3,99,13,429/-available to the assessee for set-off in the assessment year 2015-16. The AssessingOfficer by an order dated 16.11.2022 allowed the claim of carry-forward loss ofRs.3,99,13,429/- for the assessment year 2015-16. Thus, as noted above, the present appeal has been filed by the revenueonly on 11.3.2023. Thus, nothing survives for adjudication in the appeal andthe same is dismissed. (T.S. SIVAGNANAM)CHIEF JUSTICE pkd/GH. (HIRANMAY BHATTACHARYYA, J.)