Calcutta High Court
Commissioner Of Income Tax vs M/S. Uco Bank on 7 December, 2021
OD-15
ITAT/136/2017
IA NO: GA/2/2017, (Old No.GA/1281/2017)
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (INCOME TAX)
ORIGINAL SIDE
COMMISSIONER OF INCOME TAX,[LARGE TAXPAYER UNIT], KOLKATA
VERSUS
M/S. UCO BANK
BEFORE :
THE HON'BLE JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 7th December, 2021
Appearance:-
Mr. Asok Bhowmik, Adv...for appellant.
Mr. J.P. Khaitan, Sr. Adv.
Ms. Swapna Das, Adv.
Mr. Siddhartha Das, Adv.
Mr. Sanjay Bhowmick, Adv.
... for respondent
The Court : We have heard learned senior counsel appearing for
the appellant/revenue and Mr. J.P. Khaitan, learned senior counsel
appearing for the respondent/assessee.
The appellant/revenue has raised the following substantial
questions of law for consideration :
a. Whether on the facts and in the circumstances of the case
the Hon'ble Income Tax Appellate Tribunal, "C" Bench,
Kolkata was self-contradictory as on one hand following
the decision of the Hon'ble Supreme Court in 240 ITR 355
[SC] 1999 it gave relief to the assessee whereas on the
other hand on the same issue has followed the decision of
the Hon'ble Supreme Court in 343 ITR 270 [SC] wherein
their lordships while deciding the issue u/s 36[1][vi] and
36[1][vii] have held that - "merely because the orders of
the Special Bench of the Tribunal were not assailed in
appeal by the department itself and it had achieved
finality, this would not take away the right of the revenue
to question the correctness of the orders of assessment in
subsequent years as well, particularly when a question of
law is involved"?
b. Whether on the facts and in the circumstances of the case
the Hon'ble Income Tax Appellate Tribunal "C" Bench,
Kolkata has erred in law and on facts in setting aside the
issue by misinterpreting the provisions of section 43B of
the Act, ignoring the SLP filed by the department before
Hon'ble Supreme Court against the decision of the
Hon'ble High Court at Calcutta in the case of Exide
Industries Ltd. vs. Union of India as reported in 292 ITR
470 [Cal] and also ignoring the interim order passed by
the Supreme Court directing the assessee to continue to
pay tax u/s 43B of the Act?
c. Whether on the facts and in the circumstances of the case
the Hon'ble Income Tax Appellate Tribunal "C" Bench,
Kolkata has erred in law and on facts by giving relief to
the assessee u/s 91 of the Act by placing reliance on the
judgement of the ITAT Mumbai in the case of Hindustan
Construction Co. Ltd. vs. CIT as reported in 25 SOT 359
ignoring that the issue of applicability of provisions of
section 115JB of the Act is sub judice?
d. Whether on the facts and in the circumstances of the case
the Hon'ble Income Tax Appellate Tribunal "C" Bench,
Kolkata has erred in law and on facts in placing reliance
upon the judgement passed in M/s. UCO Bank v. DCIT,
Circle-6, Kolkata in ITA No.1768/Kol/2009 dated 27th
November, 2015, for the A.Y. 2002-03 where the decision
was rendered on mis-appreciation of section 115JB of the
IT Act r/w Explanation 3 to the section 115JB ignoring the
inclusive definition of company in section 115JB of the IT
Act, 1961?
After hearing the submissions of the learned senior standing
counsel for the appellant/revenue and Mr. J. P. Khaitan, learned
senior counsel for the respondent, we find that substantial questions
of law as framed by the revenue in question nos. (a), (b), and (c)
cannot be entertained. We substantiate the conclusion on the
following reasons.
Substantial question no.(a) records that the Tribunal had
followed the decision of the Hon'ble Supreme Court in 240 ITR 355
[SC] 1999 and gave relief to the assessee. We find from the order
passed by the Tribunal that the Tribunal has specifically recorded that
the said decision arose out of the assessee's own case for the earlier
assessment year and this contention could not be controverted by the
revenue. Further, in substantial question of law no.(a), the revenue
has referred to a decision of the Hon'ble Supreme Court in 343 ITR
270 [SC]. We find that the Tribunal had never referred to the said
decision while considering the said question. Therefore, the
substantial question of law no.(a) is rejected.
Similarly, the substantial question of law no. (b) is concerned,
the matter now has been settled by the decision of the Hon'ble
Supreme Court and the order passed by the Tribunal is only an order
of remand. Therefore, we find that there is no substantial question of
law on the said issue and, therefore, question no. (b) is also rejected.
So far as the substantial question of law no.(c) is concerned, the
Tribunal granted relief to the assessee following the decision of the Co-
ordinate Bench of the Mumbai Tribunal in Hindustan Construction
Co. Ltd. vs. CIT as reported in 25 SOT 359 [Mum]. The Tribunal after
noting the relevant paragraph of the said judgment, namely,
paragraph 6.4 has recorded that the said issue has been accepted by
the Assessing Officer in the assessment framed under section 143[3]
of the Act for the assessment year 2009-10. Therefore, we find that
there is no substantial questions of law arising on the said issue.
Therefore, substantial question of law no.(c) is rejected.
The appeal is admitted on the substantial question no.(d) alone,
which is as follows :
d. Whether on the facts and in the circumstances of the case
the Hon'ble Income Tax Appellate Tribunal "C" Bench,
Kolkata has erred in law and on facts in placing reliance
upon the judgement passed in M/s. UCO Bank v. DCIT,
Circle-6, Kolkata in ITA No.1768/Kol/2009 dated 27th
November, 2015, for the A.Y. 2002-03 where the decision was
rendered on mis-appreciation of section 115JB of the IT Act
r/w Explanation 3 to the section 115JB ignoring the inclusive
definition of company in section 115JB of the IT Act, 1961?
The appellant shall file requisite number of informal paper book
prepared out of Court within 8(eight) weeks from date by serving
advance copies thereof on the respondent.
Since the counsel has appeared for the respondent, service of
notice of appeal on the respondent is dispensed with.
List the appeal being ITAT/136/2017 along with
ITAT/363/2016 after 12 weeks.
(T.S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
pkd/S.Pal
AR(CR)
