Principal Commissioner Of Incometax, Central-1, Kolkata v. Before

OD-19&20 ITAT/55/2021IA No.GA/1/2021IA No.GA/2/2021 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOMETAX, CENTRAL-1, KOLKATA -Versus- Appearance:Mr. Smarajit Roychowdhury, Adv.Mr. Madhu Jana, Adv....for the appellant.Mr. Ajay Gaggar, Adv....for the respondents. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA The Court : We have heard Mr. Smarajit Roychowdhury,learned counsel assisted by Mr. Madhu Jana, learned advocate forthe appellant and Mr. Ajay Gaggar, learned counsel for therespondent. There is a delay of 442 days in filing the appeal.Learned counsel appearing for the respondent/assessee vehementlyopposes the prayer for condonation of delay by filing affidavit- in-opposition stating therein that there is no explanation, muchless sufficient cause shown by the revenue for condonation of theinordinate delay in filing the appeal. The submission of the learned counsel for the respondentappears to be correct as there is no explanation offered by therevenue. However, since we are considering an appeal underSection 260A of the Income Tax Act, 1961, we are required toexamine as to whether any substantial question of law arises forconsideration. Therefore, for such reason alone, we exercisediscretion and condone the delay in filing the appeal.Accordingly, the petition for condonation of delay (IANo.GA/1/2021) is allowed. ITAT/55/2021: This appeal filed by the revenue under Section 260A ofthe Income Tax Act, 1961 (the ‘Act’ in brevity) is directedagainst the order dated 6[th] September, 2019 passed by the IncomeTax Appellate Tribunal, “C” Bench, Kolkata (in short the‘Tribunal’) in ITA No.2044/Kol/2016 for the assessment year 2004-05. The revenue has raised the following substantialquestions of law for consideration :“i) Whether on the facts and circumstances of the case andin law, the Learned Income Tax Appellate Tribunalerred in deleting disallowance of payment ofRs.1,82,20,420/- made by the Assessing Officer onaccount of sum payable to M/s. Nuovo Pignone ? ii)Whether on the facts and circumstances of the caseand in law, the Learned Income Tax AppellateTribunal erred in allowing the fuel expenses ofRs.65,96,955/- pertaining to financial year 2001-2002 ?and in law, the Learned Income Tax AppellateTribunal erred in allowing the fuel expenses ofRs.65,96,955/- pertaining to financial year 2001-2002 ?iii)Whether on the facts and circumstances of the caseand in law, the Learned Income Tax AppellateTribunal erred in allowing excess depreciation ofRs.90,87,890/- ?and in law, the Learned Income Tax AppellateTribunal erred in allowing excess depreciation ofRs.90,87,890/- ? We have heard Mr. Smarajit Roychowdhury, learned counselassisted by Mr. Madhu Jana, learned advocate for theappellant/revenue and Mr. Ajay Gaggar, learned counsel for therespondent/assessee.On perusal of the order passed by the Tribunal, we findthat with regard to the first issue, the Tribunal affirmed theorder passed by the Commissioner of Income Tax (Appeals) [CIT(A)]with regard to the disallowance of the payments made to M/s. NuovoPignone. After noting the factual details the Tribunal has heldthat the assessee had itself not pressed its grievance regardingthe balance disallowance amount of Rs.9,21,337/- and, therefore,affirmed the order passed by the CIT(A). Thus, we find there isno substantial question of law arising for consideration on thesaid issue.The second question which has been framed by the revenueis with regard to fuel expenses pertaining to the financial year2001-02. The Tribunal on facts found that the revenue’s contention was to revive prior period operation and maintenanceand disallowance of Rs.34,20,986/- as oil fuel amount claims ofRs.65,96,955/- stated to be pertaining to the financial year 2001-02. The Tribunal noted that there is no dispute that the assesseehas been assessed at the maximum marginal rate in the twoassessment years and such a prior period expenditure disallowancein a case of maximum marginal relating to the two assessment yearsis a revenue instance and, therefore, rejected the plea raised bythe revenue. On this issue also, we find there is no substantialquestion of law arising for consideration.With regard to the excess depreciation which wasdisallowed by the assessing officer, set aside by the CIT(A), theTribunal examined the same and found that the assessee had lodgedclaim for damages regarding its plant and machinery, generatorbefore the insurance company on 5[th] April, 2003 and the insurancecompany had paid ad hoc amount of Rs.325 crores against the saidclaim in September, 2003 and, therefore, the assessee chose tocorrect the claim in the asset block in the relevant previous yearwhich was less than 180 days after crystallisation of its damageclaimed in September, 2003 and calculated depreciationaccordingly. Noting that on the peculiar facts the CIT(A) hadrightly reversed the assessing officer’s finding, rejected theappeal filed by the revenue. On this issue also, we find there isno substantial question of law for consideration as on facts ithas been found that the insurance company accepted the claim by letter dated 7[th] June, 2004 and full payment was made and the claimwas crystallised after September, 2003. Therefore, the saidquestion also cannot be construed to be a substantial question oflaw arising for consideration. For the above reasons, the appeal (ITAT/55/2021) isdismissed on the ground that no substantial question of law arisesfor consideration.Consequently, the connected application for stay being IANo.GA/2/2021 also stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) S.NathA/s.