Premlata Agarwal v. Principal Commissioner Of Income Tax 13, Kolkata

OD–1 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE RVWO/11/2023IA NO: GA/1/2023 PREMLATA AGARWAL VS. PRINCIPAL COMMISSIONER OF INCOME TAX 13, KOLKATA BEFORE :THE HON’BLE T.S. SIVAGNANAM ACTING CHIEF JUSTICE AndTHE HON’BLE JUSTICE SUPRATIM BHATTACHARYADate : 13 APRIL, 2023. Appearance :Ms. Asha G. Gutgutia, Adv.Ms. Sudipa Minda, Adv.…for appellant.Mr. Soumen Bhattacharjee, Adv.…for respondent. The Court :- We have heard learned standing Counsel for the reviewapplicant Ms. Asha G. Gutgutia, duly assisted by Ms. Sudipa Minda, learnedAdvocate and Mr. Soumen Bhattacharjee, learned Advocate appearing on behalfof the respondent. There is a delay of 154 days in filing the review application. The learnedAdvocate appearing for the applicant submits that the applicant is aged about76 years and after coming to know of the judgement and order dated 26.09.2022she could not take immediate steps to contact her counsel to file this reviewapplication. On perusal of the affidavit filed in support of the condone delayapplication, we find that sufficient cause has been shown for not being able toprefer the application within the period of limitation. Hence, the application isallowed and delay in filing the application is condoned. This review application has been filed to review the judgement and orderdated 26.09.2022. The revenue had filed the appeal with a delay of 950 days and the reason given by the revenue is that substantial period of delay is coveredduring the lockdown period. Apart from that it was stated that a circular wasissued by the C.B.D.T. directing the monetary limit for exemption of filingappeals in cases of LTCG/STCG involving penny stock was not to be given effectto. In the judgement we had referred to an order passed in ITAT No. 31 of 2020with regard to the effect of the circular and in that case the delay was condoned.It is pointed out by the learned Advocate appearing for the review applicant thatthe delay is substantial and has not been explained. Furthermore, it iscontended that there are distinguishing features in the instant case and theissue involved in the case of PCIT vs. SWATI BAJAJ; 2022 SCC Online, Cal.1572. It is further submitted that the tax effect in this case is only Rs.6,88,910/-and the same is excluded from the purview of filing appeal as per the C.B.D.T.Circular dated 08.8.2019. Further it is submitted that the Income TaxDepartment has implemented the order passed by the Tribunal and effectedrefund for a sum of Rs.7,72,080/-. This important fact was not placed beforethis Court when the application for condonation of delay and the appeal wasserved. Thus, if the department had implemented the order passed by theTribunal dated 26.6.2019 and effected refund, the department cannot bepermitted to pursue the appeal. Thus, we are of the view that the judgement andorder dated 26.09.2022 is required to be recalled and reviewed. In the light of the fact that the order passed by the Tribunal wasimplemented by the department and refund was effected on 11.02.2020 and theappeal was filed before this Court only on 29.06.2022, the appeal cannot beentertained. For the above reason, the review application is allowed. The judgementand order dated 26.09.2022 is recalled and the appeal filed by the revenue isdismissed. (T.S. SIVAGNANAM)ACTING CHIEF JUSTICE) (SUPRATIM BHATTACHARYA, J.) pkd/GH.