Principal Commissioner Of Income Tax-I, Kolkata v. M/S. Macnally Bharat Engineering Company Ltd

OD – 3 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME-TAX)ORIGINAL SIDE ITA/58/2021 PRINCIPAL COMMISSIONER OF INCOME TAX-I, KOLKATAVS.M/S. MACNALLY BHARAT ENGINEERING COMPANY LTD. BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE SUPRATIM BHATTACHARYADate : SEPTEMBER 29, 2022. Appearance:Ms. Smita Das De,, Adv.…for the appellantMr. A.K. Dey, Adv.…for respondent The Court :- This appeal has been filed by the revenue under Section 260A of theIncome Tax Act, 1961 (the Act) challenging the order dated March 1, 2017 passed by theIncome Tax Appellate Tribunal “A” Bench, Kolkata (Tribunal) in ITA No. 100/Kol?2011and CO. 13/Kol/2011 for the assessment year 2006-07, I.T.A. no. 532/Kol/2012 &217/Kol/2012 for the assessment year 2007-08 and I.T.A. No. 533/Kol/2012 and218/Kol/2012 for the assessment year 2008-09. The appeal was admitted on the following substantial questions of law:- “(a) Whether on the facts and circumstances of the case, the Learned Income TaxAppellate Tribunal “A” bench, erred in law in deleting the addition made onaccount of Employees’ contribution for Provident Fund u/s 36(1)(va) r-w 2(24)(x)ignoring the fact that the employees’ contribution to the PF was supposed to bedeposited by the employer within the due date as specified in the PF act failing which no deduction could have bee allowed to the assessee as the intention of thelegislature is very clear in this regard ? (b) Whether on the facts and circumstances of the case, the Learned Income TaxAppellate Tribunal “A” Bench, erred in law in holding that ‘retention money’ couldnot be regarded as income for the purposes of calculating Book profit underSection 115JB of the Act by disregarding that the same had already been creditedby the assessee in its Profit and Loss account ?” We have heard Ms. Smita Das De, learned standing Counsel appearing for theappellant and Mr. A.K. Dey, learned Advocate appearing for the respondent/assessee. It is submitted by the learned Advocate appearing for respondent/assessee thatalready an order has been passed by the National Company Law Tribunal, KolkataBench – I (NCLT) in an application under Section 7 of the Insolvency & BankruptcyCode, 2016 and an order was passed on 29[th] April, 2022 under Section 7 of the Code forinitiating Corporate Insolvency Resolution Process against the respondent/assessee andthe application was admitted and a Moratorium under Section 14 of the Code was alsoordered. In the light of the said position revenue cannot pursue this appeal any further.Accordingly, the appeal stands disposed of on the aforesaid ground andsubstantial questions of law are left open. (T.S. SIVAGNANAM, J.) (SUPRATIM BHATTACHARYA, J.)