Principal Commissioner Ofincome Tax -4, Kolkata v. M/S. Tantia Constructionlimited

O - 138 ITA/184/2018 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction [Income Tax]ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME TAX -4, KOLKATA -Versus- M/S. TANTIA CONSTRUCTIONLIMITED BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 27[th] February, 2023 Appearance :Mr. Om Narayan Rai, Adv.…for the appellant.Mr. Avra Majumdar, Adv.…for the respondent.. The Court : This appeal filed by the revenue underSection 260A of the Income Tax Act, 1961 (the ‘Act’ forbrevity) is directed against the order dated 22[nd ]November, 2017passed by the Income Tax Appellate Tribunal, “D” Bench, Kolkata(the Tribunal) in ITA No.1405/Kol/2015 for the assessment year2012-13. The appeal was admitted on 11[th] December, 2018 on the following substantial questions of law: “(a)Whether the facts of this case are identical tothose in Commissioner of Income Tax Vs. SimplexConcrete Piles (India) Pvt. Ltd. reported in [1989] 179 ITR 8 decided on 5[th] December, 1988 and this Courtshould follow the same in this case also?(b)Whether on the facts and circumstances of thecase, the retention amount could be taken to be theincome of the assessee in the subject previous year?(c)Did the tribunal come to the correct legalconclusion by following the correct accountingprinciples?” We have heard Mr. Om Narayan Rai, learned standingcounsel appearing for the appellant/revenue and Mr. AvraMajumdar, learned advocate appearing for therespondent/assessee.The learned advocate appearing for therespondent/assessee submitted that the application filed by thefinancial creditor under Section 7 of the Insolvency andBankruptcy Code, 2016 (IBC) before the NCLT, Kolkata wasadmitted for initiating corporate resolution process in respectof the assessee company and the NCLT by an order dated 13[th]March, 2019 declared moratorium for the purposes of referringto in section 14 of the IBC. Further, the NCTL has approved theresolution plan submitted by the company on 24[th] February,2020. Since the resolution plan has already been approved, theinstant appeal has become infructuous and, accordingly, standsdismissed without any order as to costs. Further, in theassessee’s own case in ITA/20/2021, ITA/21/2021 andITA/115/2018 the appeal was dismissed on similar grounds. For the above reasons, the appeal filed by the revenue is dismissed and the substantial questionsof law are left open. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) S.Das/K. Banerjee