Principal Commissioner Of Income Tax, Durgapur v. M/S. Sinhotia Metals And Minerals Pvt. Ltd

OD-50 IA No. GA/1/2019In ITAT/104/2019IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOME TAX, DURGAPURVERSUSM/S. SINHOTIA METALS AND MINERALS PVT. LTD. BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE ANANDA KUMAR MUKHERJEE Date : 7[th] January, 2022 Appearance :- Mr. P. K. Bhomick, Adv.Mr. M. N. Bandopadhyay, Adv.… For AppellantMr. S. M. Surana, Adv.Mr. Bhaskar Sengupta, Adv.… For Respondent The Court : This appeal by the revenue under Section 260A ofthe Income Tax Act, 1961(the Act for brevity) is directed against theorder dated 16[th] January, 2019 passed by the Income Tax AppellateTribunal, “C” Bench, Kolkata (Tribunal) in ITA No. 889/Kol/2017 forthe assessment year 2012-13. The revenue has raised the followingsubstantial questions of law for consideration: (a)Whether on the facts and circumstances of the case, the learnedTribunal on correct interpretation of law in Section 263 of theIncome Tax Ac, 1961 set aside the revisional order and in holdingthat Principal C.I.T has not exercised its jurisdiction under Secton263 of the Act himself?Tribunal on correct interpretation of law in Section 263 of theIncome Tax Ac, 1961 set aside the revisional order and in holdingthat Principal C.I.T has not exercised its jurisdiction under Secton263 of the Act himself? (b)Whether on the facts and in the circumstances of the case thelearned Income Tax Appellate Tribunal has erred in law in holdingthat the PCIT has exercised the jurisdiction under Section 263 atthe instance of AO/JCIT which is a wrong interpretation as thePCIT after examining the case records has directed the JCIT to re-submit the proposal as per provision to explanation 2 to Section263 of the Act?learned Income Tax Appellate Tribunal has erred in law in holdingthat the PCIT has exercised the jurisdiction under Section 263 atthe instance of AO/JCIT which is a wrong interpretation as thePCIT after examining the case records has directed the JCIT to re-submit the proposal as per provision to explanation 2 to Section263 of the Act? We have heard Mr. P. K. Bhowmick, learned Standing Counselappearing for the appellant/revenue and Mr. S. M. Surana, learnedCounsel appearing for the respondent/assessee. The contention of the revenue before us is that the Tribunalfailed to appreciate that the Principal Chief Commissioner of IncomeTax had directed the Joint Commissioner of Income Tax to re-submitthe proposal after examining the records and after drawingsatisfaction that the order of the Assessing Officer was erroneous andprejudicial to the interest of the revenue and the order of the Tribunalis not sustainable. It is further contended before us that the PrincipalCommissioner of Income Tax has not exercised the jurisdiction under Section 263 of the Act at the instance of the Joint Commissioner ofIncome Tax and it is a wrong interpretation given by the Tribunal.We have gone through the order passed by the Tribunal,wherein we find that the Tribunal has noted the decision of the co-ordinate Bench of the Tribunal in the case of M/s. Rapayan Udyog inITA No.1073/Kol/2012, dated 28[th] October, 2018. After noting thesaid decision the Tribunal points out that the appellant departmenthas not controverted the contents of the letter of the JointCommissioner of Income Tax dated 18[th] August, 2016 and hasrecorded that the said letter clearly brings out that the PCIT has calledfor proposal from the JCIT/Assessing Officer to exercise jurisdictionunder Section 263 of the Act. Therefore, the Tribunal concluded thatthe PCIT has not exercised jurisdiction under Section 263 of the Acthimself, but he exercised jurisdiction at the instance of the AssessingOfficer/JCIT, which is against the provisions of law. The argument made by the learned Standing Counsel is that itis the PCIT who has exercised jurisdiction under Section 263 of theAct. From the order passed by the Tribunal we find that thedepartment could not controvert the contents of the letter dated 18[th]August, 2016. If, according to the department, the contents of theletter were otherwise, then it is for the department to approach theTribunal for necessary rectification or clarification and the correctnessof the order of the Tribunal cannot be decided by us in an appeal under Section 260A of the Act by bringing certain submissions whichwere never made before the Tribunal. Therefore, we are not inclinedto interfere with the order passed by the Tribunal and accordingly, theappeal is dismissed. However, we leave it open to theappellant/department to approach the Tribunal for clarification orrectification of the order, if they are so advised.The substantial questions of law are answered against therevenue. With the dismissal of the appeal, the stay application (IA No.GA/1/2019) also stands dismissed. (T.S. SIVAGNANAM, J.) (ANANDA KUMAR MUKHERJEE, J.)