Principal Commissioner Of Incometax, Central-1, Kolkata v. Inland Vikash Limited

OD-30 ITAT/381/2017IA No.GA/2/2017 (Old No.GA/3690/2017) IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOMETAX, CENTRAL-1, KOLKATA -Versus- INLAND VIKASH LIMITED Appearance:Mr. P. K. Bhowmick, Adv....for the appellant. Mr. J. P. Khaitan, Sr. Adv.Mr. P. Jhunjhunwala, Adv.Ms. Swapna Das, Adv.Mr. Siddhartha Das, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA The Court : This appeal filed by the revenue under Section 260A of the Income Tax Act, 1961 (the ‘Act’ in brevity) isdirected against the order dated 10[th] August, 2016 passed by theIncome Tax Appellate Tribunal, “C” Bench, Kolkata (the ‘Tribunal’in short) in ITA No.900/Kol/2011 and ITA No.565/Kol/2011 both forthe assessment year 2004-05. The revenue has raised the following substantialquestions of law for consideration: (i)Whether on the facts and in the circumstances ofthe case the reopening and subsequent reassessment forthe A.Y. 2004-05 is not valid on the ground that “notangible material which came into possession of the AOafter conclusion of the original assessment proceedings”as has been held by the Tribunal? (ii)Whether on the facts and in the circumstances ofthe case the reopening and subsequent reassessment forthe A.Y. 2004-05 are not based on mere change of opinion?We have heard Mr. P. K. Bhowmick learned counsel for theappellant/revenue and Mr. J. P. Khaitan, learned senior counselassisted by Ms. Swapna Das, learned Advocate for therespondent/assessee. The short issue which falls for consideration is whetherthe Tribunal was right in setting aside the reopening of theassessment made vide order dated 11[th] March, 2011 under Section143(3) read with Section 147 of the Act. On perusal of the orderpassed by the Tribunal, we find that the Tribunal has thoroughlyanalysed the factual position and noted as to the nature oftransaction between the assessee and M/s. Inward Road TransportPvt. Ltd. (IRTPL). In paragraph 8 of the order passed by theTribunal the facts have been noticed and the Tribunal has takennote of the submission that the relevant receipt and income wasembedded in such receipt and was properly taxed in accordance withlaw in the hands of the person entitled to such income and to whom such income has accrued. The Tribunal took note of the decisionof the Hon’ble Supreme Court in the case of Kelvinator India Ltd.reported in 320 ITR 561(SC) and held that the assessing officerhas not mentioned as to how the fact that such sundry creditors,as on 31[st] March, 2004 shown by the assessee in the name of M/s.IRTPL were not reflected with an entry of sundry debtors in thebooks of M/s. IRTPL in the name of the assessee. Further, theTribunal noted that the assessee and M/s. IRTPL are one and thesame in such circumstances it cannot be said that the assessingofficer had fresh tangible material after conclusion of theassessment under Section 143(3) of the Act. Further, the Tribunalon facts held that none of the reasons recorded by the assessingofficer for initiating re-assessment proceedings can be said to beon the basis of the tangible material obtained after conclusion ofthe original assessment so as to form opinion that incomechargeable to tax has escaped assessment.Thus, we find that on facts the Tribunal was satisfiedthat there was no fresh tangible material to reopen he assessmentunder Section 147 of the Act. Thus, there is no error in theapproach of the Tribunal nor the ultimate conclusion arrived at bythe Tribunal warranting interference by us in this appeal.Accordingly, the appeal (ITAT/381/2017) stands dismissedas no substantial question of law arises for consideration. The connected application for stay (IA No.GA/2/2017) alsostands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s./S.Das