Volvox Atlanta B.(Formerly Vanoord Atlanta B.v v. Commissioner Of Income Tax(Appeals)-Xl, Kolkata

OD-2 ITA/46/2009 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE VOLVOX ATLANTA B.(FORMERLY VANOORD ATLANTA B.V.) -Versus- COMMISSIONER OF INCOME TAX(APPEALS)-XL, KOLKATA BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 14[th] March, 2023 Appearance :Mr. J. P. Khaitan, Sr. Adv.Ms. Swapna Das, Adv.Ms. Sanjukta Gupta, Adv....for the appellantMs. Smita Das De, Adv....for the respondent. The Court : This appeal filed by the assessee underSection 260A of the Income Tax Act, 1961 (the ‘Act’ forbrevity) is directed against the order dated 30[th] September,2008 passed by the Income Tax Appellate Tribunal, “C” Bench,Kolkata (the Tribunal) in ITA No.1142/Kol/2008 for theassessment year 2003-04. The appeal was admitted on 23[rd] February, 2010 on thefollowing substantial questions of law: (i)Whether on the facts and circumstances of thecase the Tribunal erred in law in holding thatthe CIT(A) was right in not admitting theadditional ground of appeal in appealproceedings against an order passed underSection 154 of the Act since the issue raisedas per the additional ground did not arisefrom the order passed by the Assessing Officerunder the said Section ?case the Tribunal erred in law in holding thatthe CIT(A) was right in not admitting theadditional ground of appeal in appealproceedings against an order passed underSection 154 of the Act since the issue raisedas per the additional ground did not arisefrom the order passed by the Assessing Officerunder the said Section ? (ii) Whether on the facts and circumstances of thecase the Tribunal erred in law in holding thatthe issue whether the appellant had apermanent establishment in India and wasliable to tax in India during the relevantassessment year arose out of the order passedunder Section 143(3) and not under Section 154of the Act ?case the Tribunal erred in law in holding thatthe issue whether the appellant had apermanent establishment in India and wasliable to tax in India during the relevantassessment year arose out of the order passedunder Section 143(3) and not under Section 154of the Act ? We have heard Mr. J. P. Khaitan, learned senior counsel assisted by Ms. Swapna Das and Ms. Sanjukta Gupta,learned Advocates for the appellant/assessee and Ms. Smita DasDe, learned standing counsel for the respondent/revenue. Learned senior counsel for the appellant submittedthat in the light of the judgment of this Court dated 14[th]March, 2023 dismissing ITA/121/2019, filed by the revenue, theassessee seeks leave to withdraw this appeal as not pressed. In the light of the above submission, the appeal(ITA/46/2009) is dismissed as not pressed and the substantialquestions of law are left open. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) As./K.Banerjee