Principal Commissioner Of Incometax -1, Kolkata v. M/S. Brolly Dealcom Llp

OD-22 ITAT/48/2021IA No.GA/1/2021IA No.GA/2/2021 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOMETAX -1, KOLKATA -Versus- M/S. BROLLY DEALCOM LLP, Appearance:Mr. Prithu Dudheria, Adv....for the appellant.Mr. J. P. Khaitan, Sr. Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 16[th] June, 2022. The Court :Re: IA No.GA/1/2021: This appeal filed by the revenue is time barred.There is delay of 603 days in filing the appeal. Therespondent/assessee has filed an affidavit-in-opposition statingthat the delay has not been explained. An affidavit-in-reply hasbeen filed by the department to the said affidavit-in-oppositionin Court today, which is taken on record. We have elaborately heard Mr. Prithu Dudheria, learnedstanding counsel for the appellant/revenue and Mr. J. P. Khaitan,learned senior counsel for the respondent/assessee. On perusal ofthe affidavit filed in support of the application for condonationof delay as well as the affidavit-in-reply, we find that theexplanation given by the department is far from beingsatisfactory. However, we are conscious of the fact that thepresent appeal is a second round of litigation and the orderimpugned in the appeal has been passed by the tribunal after thisCourt, in the earlier round, remanded the matter to the tribunalfor a limited purpose. That apart, we have to examine as towhether any substantial question of law arises for consideration.Therefore, even though there is no satisfactory explanation givenin support of the application for condonation of delay, weexercise discretion and condone the delay in filing the appeal.For such reason alone, the application for condonation of delay(IA No.GA/1/2021) is allowed. Re: ITAT/48/2021: This appeal filed by the revenue under Section 260A ofthe Income Tax Act, 1961 (the ‘Act’ for brevity) is directedagainst the order dated 1[st] February, 2019 passed by the Income TaxAppellate Tribunal, “B” Bench, Kolkata (the Tribunal) in ITANo.1543/Kol/2013 for the assessment year 2008-09. The revenue has raised the following substantial questions of law for consideration : I)Whether the Income Tax Appellate Tribunal erred inlaw in not sustaining the order of the CIT underSection 263 of the Income Tax Act, 1961 in the factsand circumstances of the case ?law in not sustaining the order of the CIT underSection 263 of the Income Tax Act, 1961 in the factsand circumstances of the case ? II)Whether the Income Tax Appellate Tribunal erred inlaw in not at least setting aside the order of theCIT to his file for passing fresh order afterproviding reasonable opportunity to the assessee ofbeing heard ?law in not at least setting aside the order of theCIT to his file for passing fresh order afterproviding reasonable opportunity to the assessee ofbeing heard ? III)Whether the Income Tax Appellate Tribunal erred inlaw in treating the order under Section 263 of theIncome Tax act, 1961 is bad in law as the assesseehas not been provided opportunity before passingsuch order although sufficient opportunities havebeen provided to the assessee of being heard ?law in treating the order under Section 263 of theIncome Tax act, 1961 is bad in law as the assesseehas not been provided opportunity before passingsuch order although sufficient opportunities havebeen provided to the assessee of being heard ? counsel for the appellant/revenue and Mr. J. P. Khaitan, learnedsenior counsel for the respondent/assessee. The present appeal is a second round of litigation. Inthe first round of litigation, the matter travelled up to thetribunal and the assessee’s case was tagged along with a batch ofcases wherein the question was whether assumption of jurisdictionby the Commissioner of Income Tax under Section 263 of the Act wasjustified or not. The appeal filed by the assessee was dismissedalong with a batch of cases. Aggrieved by the same, the assessee counsel for the appellant/revenue and Mr. J. P. Khaitan, learnedsenior counsel for the respondent/assessee. The present appeal is a second round of litigation. Inthe first round of litigation, the matter travelled up to thetribunal and the assessee’s case was tagged along with a batch ofcases wherein the question was whether assumption of jurisdictionby the Commissioner of Income Tax under Section 263 of the Act wasjustified or not. The appeal filed by the assessee was dismissedalong with a batch of cases. Aggrieved by the same, the assessee preferred appeal before this Court in ITA/25/2018 and by judgmentand order dated 7[th] May, 2018, the Division Bench allowed theappeal on the ground that the contention advanced by the assesseewith regard to non-service of notice was not specificallyconsidered by the tribunal. Accordingly, the order passed by thetribunal was set aside and the matter was remanded to the tribunalto consider the issue as to whether the respondent/assessee, assuccessor-in-interest of the original assessee, had notice ofknowledge of any hearing fixed by the Commissioner prior to theCommissioner passing the order under Section 263 of the Act. Onremand, the tribunal has taken up the matter and we find thatfactual exercise had been done by the tribunal and all the recordsplaced by the department were considered and the tribunal wassatisfied that there has been gross violation of principles ofnatural justice. Accordingly, the appeal filed by the assesseewas allowed. The revenue has challenged this order by filing thepresent appeal and from the memorandum of grounds, we find thatthe revenue seeks to convert this Court as if it is a secondappellate Court over the findings of the tribunal. The presentappeal, being one under Section 260A of the Act, what is requiredto be seen is as to whether any substantial question of law arisesfor consideration and the jurisdiction of this Court is not to re-appreciate the factual conclusion arrived at by the tribunal. Aspointed out earlier, the tribunal, after the matter was remanded, has done an elaborate factual exercise and decided in favour ofthe assessee. Thus, we find that there is no question of law muchless substantial question of law arises for consideration in thisappeal.Accordingly, the appeal (ITAT/48/2021) stands dismissed.Consequently, the connected application for stay (IA No.GA/2/2021)also stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s/S.Das