Principal Commissioner Of Incometax, Kolkata-3, Kolkata v. M/S. Apeejay Shipping Limited

OD-41 ITAT/288/2017 IA No.GA/2/2017 (Old No.GA/2672/2017) IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOMETAX, KOLKATA-3, KOLKATA -Versus- M/S. APEEJAY SHIPPING LIMITED Appearance:Mr. P. K. Bhowmick, Adv.Mr. M. N. Bandopadhyay, Adv....for the appellant. Mr. Abhrotosh Majumdar, Sr. Adv.Mr. Avra Majumdar, Sr. Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 22[nd] November, 2021. The Court : This appeal of revenue filed under Section260A of the Income Tax Act (the ‘Act’ in brevity) is directedagainst the order dated 6[th] April, 2016 passed by the Income TaxAppellate Tribunal, A-Bench, Kolkata (the ‘Tribunal’) in ITANos.781, 782, 783 & 784/Kol/2015 for the assessment years 2007-08,2008-09, 2009-10 and 2010-11. The revenue has raised the following substantial questions of law for consideration : “a)Whether on the facts and in the circumstances ofthe case the Learned Tribunal was justified in law inallowing the appeal of the assessee against the order passedunder Section 263 on technical ground without justifying thelegislative intent of Section 115 JB and 115 JAA of theIncome Tax Act? We have heard Mr. P.K. Bhowmick, learned counsel for theappellant/revenue and Mr. Majumdar, learned senior counsel for therespondent/assessee. The short question involved in the instant appeal iswhether the Commissioner of Income Tax could have exercised hispower under Section 263 of the Act and set aside the order passedby the Assessing Officer on 8[th] December, 2011 under the guise ofrevising the assessment order dated 29[th] November, 2012. Thisaspect of the matter was considered by the Tribunal and theTribunal has recorded the following findings: “8. ... It is pertinent to note here that the MATCredit as per the provisions of section 115JAA wasactually allowed by the Assessing Officer originally inthe assessment completed under section 143(3) read withsection 263 passed on 08.12.2011 and in the appeal filedby the assessee against the said order, the limited issueinvolved was whether the MAT Credit allowed by theAssessing Officer should include the amount of surchargeand education cess as well. When the ld. CIT(Appeals) decided the said issue in favour of the assessee vide hisappellate order dated 19.12.2012 the order dated29.11.2012 was passed by the Assessing Officer undersection 143(3) read with section 263 and 251 givingeffect to the appellate order of the ld. CIT dated19.10.2012 and accordingly the MAT Credit originallyallowed by him vide order dated 08.12.2011 passed undersection 143(3) read with section 263 on 08.12.2011 wasonly increased by him by the amount of surcharge andeducation cess. The error, if any, in allowing the MATCredit as alleged by the ld. CIT in his impugned orderpassed under section 263 thus was there in the orderpassed by the Assessing Officer under section 143(3) readwith section 263 on 08.12.2011 whereby the MAT Credit wasoriginally allowed and not in the order dated 29.11.2012passed by the Assessing Officer under section 143(3) readwith section 263 and 251 whereby the MAT Credit alreadyallowed was only increased by the Assessing Officer bythe amount of surcharge and education cess while givingeffect to the appellate order of the ld. CIT(Appeals).” We find that the above fact recorded by the Tribunal isjust and proper. That apart, we also find that the Tribunal tooknote of the decision of the Hon’ble Supreme Court in CIT vs.Alagendran Finance Limited [211 CTR (SC) 69] and held that theorder passed by the Commissioner of Income Tax under Section263(2) is hopelessly barred by limitation. The Tribunal rightlyheld that the period of limitation for the assessment year 2007-08has to be reckoned from the date of the order passed by the We find that the above fact recorded by the Tribunal isjust and proper. That apart, we also find that the Tribunal tooknote of the decision of the Hon’ble Supreme Court in CIT vs.Alagendran Finance Limited [211 CTR (SC) 69] and held that theorder passed by the Commissioner of Income Tax under Section263(2) is hopelessly barred by limitation. The Tribunal rightlyheld that the period of limitation for the assessment year 2007-08has to be reckoned from the date of the order passed by the Assessing Officer under Section 143(3)read with Section 263 i.e.8[th] December, 2011 and not from the date of the order passed by theAssessing Officer under Section 143(3) read with Section 263 and251 dated 29[th] November, 2012. Thus, we find that the Tribunalrightly allowed by the appeal filed by the assessee.Thus, we find that there is no error in the order passedby the tribunal. Accordingly, the appeal fails and is dismissed.The substantial question of law is answered against the revenue.The stay application also stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s./S.Das.