Principal Commissioner Ofincome Tax, Central-2, Kolkata v. M/S. Himadri Specialitychemicals Limited

OD-24 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME TAX, CENTRAL-2, KOLKATA -Versus- M/S. HIMADRI SPECIALITYCHEMICALS LIMITED Appearance:Mr. Prithu Dudheria, Adv....for the appellant. Mr. J. P. Khaitan, Sr. Adv.Mr. Saumya Kejriwal, Adv.Ms. Ananya Rath, Adv.Mr. G. S. Gupta, Adv.... for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- Date : 31[st] October, 2022. The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA The Court: We have heard Mr. Prithu Dudheria, learned advocate for the appellant and Mr. J. P. Khaitan, learnedsenior counsel assisted by Mr. Saumya Kejriwal, Ms. Ananya Rathand Mr. G.S. Gupta, learned Advocates for the respondent. There is a delay of 815 days in filing the appeal.Substantial period of the delay was during the lockdown and theremaining period is less than 50 days. Therefore, we exercisediscretion and condone the delay in filing the appeal. Accordingly, the application for condonation of delay(IA No.GA/1/2022) is allowed. This appeal filed by the revenue under Section 260A ofthe Income Tax Act, 1961 (the ‘Act’ for brevity) is directedagainst the order dated 3[rd] January, 2020 passed by the IncomeTax Appellate Tribunal, “B” Bench, Kolkata (the Tribunal) inITA No.1351/Kol/2019 for the assessment year 2012-13. The revenue has raised the following substantial questions of law for consideration: a)Whether on the facts and in the circumstances of thecase, the Learned Income Tax Appellate Tribunal haserred in law in Foreign Exchange Fluctuation Loss onExternal Commercial Borrowings (ECB) loans taken byassessee mainly for purpose of purchasing capitalgoods without considering the fact that the assesseehimself had capitalised Foreign Exchange FluctuationLoss with capital goods purchased ? b)Whether on the facts and in the circumstances of thecase, the Learned Income Tax Appellate Tribunal haserred in law in upholding the order of CIT (Appeals)whereby disallowing market to Marked Loss (MTM Loss)on foreign currency swaps while computing income u/s.115JB, without considering the fact that assesseehimself had added MTM Loss on account of foreigncurrency swaps, to his income calculated under normalprovisions of Income Tax Act ?c)Whether on the facts and in the circumstances of thecase, the Learned Income Tax Appellate Tribunal haserred in law in allowing deduction claimed u/s. 10Bof Income Tax Act, while computing income from eligible unit under Chapter IV of Income Tax Act, andnot at the stage of computing gross total income asper Chapter VI of Income Tax Act ? It is not disputed by the revenue that as against theorder passed under Section 263, the revenue was in appealbefore this Court in the case of Principal Commissioner ofIncome Tax, Central-1, Kolkata vs. Himadri Chemicals andIndustries Ltd. passed in ITA/124/2021 and the same wasdismissed by judgment dated 20[th] July, 2022. If that be theposition, the present appeal cannot be independently pursued bythe revenue. Furthermore, we note that substantial question oflaw No.(c) as raised in the appeal was not raised by therevenue in their appeal in ITA/124/2021. In the light of the above, the revenue cannot pursuethis appeal and no interference is called for against the orderpassed by the learned Tribunal. Accordingly, the appeal (ITAT/170/2022) standsdismissed. Consequently, the connected application for stay (IANo.GA/2/2022) stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)