M/S. Metrocity Developer Pvt. Ltd.& Anr v. Income Tax Officer, Ward-1(2),Kolkata & Ors

IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE M/S. METROCITY DEVELOPER PVT. LTD.& ANR. -Versus- INCOME TAX OFFICER, WARD-1(2),KOLKATA & ORS. Appearance:Mr. Subash Agarwal, Adv....for the appellant.Mr. P. K. Bhowmick, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA The Court : This appeal by the assessee filed underSection 260A of the Income Tax Act (the ‘Act’ in brevity) isdirected against the order dated 6[th] March, 2017 passed by theIncome Tax Appellate Tribunal, C-Bench, Kolkata (the ‘Tribunal’)in ITA No.545/Kol/2014 for the assessment year 2008-09. The assessee has raised the following substantial questions of law for consideration: “a)Whether on the facts and circumstances of the case,the Learned Tribunal is correct in holding that the allegedlack of proper enquiries as to the issue of share capital/premium in the course of proceedings under Section147 is to be considered as erroneous and prejudicial to theinterest of revenue even though the reopening was done forthe specific purpose of escapement of miscellaneous income of₹12,500/- which was not property account for due to mistake? b) Whether on the facts and circumstances of the case,the Learned Tribunal is correct in not appreciating the factthat the reassessment order passed by the Assessing Officeris not erroneous as well as not prejudicial to the interestof the revenue on the issue of share capital/premium when noaddition can be made under Section 68 of the Income Tax, 1961in view of the judgments of the Hon’ble Supreme Court in caseof Lovely Exports (P) Ltd. reported in 319 ITR (St.)5? c) Whether on the facts and circumstances of the case,the Learned Tribunal is correct in holding that theCommissioner of Income Tax under Section 263 can set asidethe assessment order and direct the Assessing Officer toconduct a thorough enquiry, notwithstanding the jurisdictionof the Assessing Officer in making enquiries on the issues ormatters as he considers fit in terms of Section 142(1) and143(2) of the Act? d) Whether the purported finding of the Learned Tribunalthat the issue of share capital/share premium has not beenproperly looked into or investigated by the Assessing Officeris wholly perverse and/or is based on no material and/or isbased on mere conjectures and surmises? e) Whether on the facts and circumstances of the case,the Learned Tribunal was justified in upholding theproceedings under Section 263 inspite of the fact that theproceedings were concluded in gross violation of theprinciples of natural justice and/or improper service of showcause notice?” We have heard Mr. Subash Agarwal, learned Counsel for theappellant and Mr. P. K. Bhowmick, learned counsel for therespondent/revenue. Learned counsel for the appellant fairly submitted thatidentical issue and questions of law raised above were consideredand answered against the assessee by this Court in its decisionreported in 386 ITR 162(Cal) [Raj Mandir Estates (P) Ltd. versusPrincipal Commissioner of Income Tax]. Following the saiddecision, the present appeal (ITAT/318/2017)stands dismissed inthe above-mentioned substantial questions of law are answeredagainst the assessee.The connected application for stay, IA NO.GA/1/2017(OldNO.GA/2962/2017) also stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s.