Principal Commissioner Of Incometax-I, Kolkata v. M/S. Gkw Ltd

OD-34 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOMETAX-I, KOLKATA -Versus- M/S. GKW LTD. Appearance:Mr. Debasish Chowdhury, Adv....for the appellant. Mr. J. P. Khaitan, Sr. Adv.Mr. Somak Basu, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA The Court : This appeal of revenue filed under Section260A of the Income Tax Act, 1961 (the ‘Act’ in brevity) isdirected against the order dated 5[th] April, 2017 passed by theIncome Tax Appellate Tribunal, “C” Bench, Kolkata (the ‘Tribunal’in short) in ITA No.459/Kol/2012 for the assessment year 1996-97. The revenue has raised the following substantial questions of law for consideration: (i)Whether on the facts and circumstances of the casethe Learned Income Tax Appellate Tribunal, “C” Bench,Kolkata was justified in upholding the view of the CIT (Appeals) that provisions of Section 72A of the IncomeTax Act, 1961 is procedural in nature and that theamendment brought with effect from 1[st] April, 2000 isretrospective in nature?(ii)Whether on the facts and circumstances of the casethe Learned Income Tax Appellate Tribunal, “C” Bench,Kolkata has erred in law in allowing the claim of theassessee of carry forward losses of the amalgamatingcompany by disregarding that no carry forward losses waspassed by the authority as found by the assessingofficer?” We have heard Mr. Debasish Chowdhury, learned counsel forthe appellant/revenue and Mr. J. P. Khaitan, learned seniorcounsel for the respondent/assessee. The short question in the instant case is whether theassessing officer while completing the assessment under Section143(3) of the Act vide order dated 31[st] March, 1999 was right innot allowing the carry forward loss of amalgamating company solelyon the ground that the authority which has been constituted underthe Section 72A of the Act for issuance of a certificate, had notgranted a certificate. On going through the order of assessmentdated 31[st] March, 1999, we find that the entitlement of therespondent/assessee to carry forward the loss has not beendisputed by the assessing officer and the only ground on which theassessee has been non-suited is by stating that requisitecertificate has not been produced by the assessee. This aspect was examined for its correctness by the Commissioner of Income Tax(Appeals)-XII, (CIT(A)) in an appeal filed by the assessee. Aftertaking note of the facts, the CIT(A) observed that the specifiedauthority despite filing of application by the assessee had notissued certificate under Section 72A of the Act. In the light ofthe said factual position the question was whether the assesseewas entitled to carry forward all losses of the amalgamatingcompany or not.The facts were not in dispute. However, it appears thatan argument was placed by the assessee before the CIT(A) that theconditions laid down in Section 72A of the Act is procedural innature and, therefore, after its deletion with effect from 1[st]April, 2000 such deletion was to take effect retrospectively. Inour considered view, such exercise was not necessary in the factsand circumstances of the case because on facts, the assessingofficer did not dispute the entitlement of the assessee to carryforward the losses of the amalgamating company. Accordingly, theappeal filed by the assessee was allowed. The revenue filed anappeal before the Tribunal and the Tribunal also noted the factualposition and found that the conditions stipulated under Section72A of the Act has been duly complied with by the assessee and,therefore, entitled to carry forward the losses of theamalgamating company. The tribunal however proceeded to alsoexamine the issue as to whether the deletion of the said provision with effect from 1[st] April, 2000 was prospective and retrospectivein nature. As mentioned earlier, such an exercise was not requiredto be done in the instant case as it as not been disputed by theAssessing Officer about the entitlement of the assessee to thesaid benefit and the only grounds on which the assessee was deniedrelief is not furnishing a certificate which though upheld by theassessee was not issued by the authority and in the meantime, suchprocedure was itself got deleted.Thus, we find that the entire matter is fully factual andno questions of law, much less substantial questions of law arisefor consideration in this appeal. Accordingly, the appeal fails and is accordinglydismissed.With the dismissal of the appeal, the application beingGA 2/2018 (Old No.1195/2018) is also dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) As/Kb/SN/S.De