Calcutta High Court
& Anr vs Income Tax Officer on 25 November, 2021
OD-44
ITAT/318/2017
IA No.GA/1/2017 (Old No.GA/2962/2017)
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income Tax)
ORIGINAL SIDE
M/S. METROCITY DEVELOPER PVT. LTD.
& ANR.
-Versus-
INCOME TAX OFFICER, WARD-1(2),
KOLKATA & ORS.
Appearance:
Mr. Subash Agarwal, Adv.
...for the appellant.
Mr. P. K. Bhowmick, Adv.
...for the respondent.
BEFORE:
The Hon'ble JUSTICE T.S. SIVAGNANAM
-And-
The Hon'ble JUSTICE HIRANMAY BHATTACHARYYA
Date : 25th November, 2021.
The Court : This appeal by the assessee filed under
Section 260A of the Income Tax Act (the 'Act' in brevity) is
directed against the order dated 6th March, 2017 passed by the
Income Tax Appellate Tribunal, C-Bench, Kolkata (the 'Tribunal')
in ITA No.545/Kol/2014 for the assessment year 2008-09.
The assessee has raised the following substantial
questions of law for consideration:
"a) Whether on the facts and circumstances of the case,
the Learned Tribunal is correct in holding that the alleged
lack of proper enquiries as to the issue of share
capital/premium in the course of proceedings under Section
147 is to be considered as erroneous and prejudicial to the
interest of revenue even though the reopening was done for
the specific purpose of escapement of miscellaneous income of
₹12,500/- which was not property account for due to mistake?
b) Whether on the facts and circumstances of the case,
the Learned Tribunal is correct in not appreciating the fact
that the reassessment order passed by the Assessing Officer
is not erroneous as well as not prejudicial to the interest
of the revenue on the issue of share capital/premium when no
addition can be made under Section 68 of the Income Tax, 1961
in view of the judgments of the Hon'ble Supreme Court in case
of Lovely Exports (P) Ltd. reported in 319 ITR (St.)5?
c) Whether on the facts and circumstances of the case,
the Learned Tribunal is correct in holding that the
Commissioner of Income Tax under Section 263 can set aside
the assessment order and direct the Assessing Officer to
conduct a thorough enquiry, notwithstanding the jurisdiction
of the Assessing Officer in making enquiries on the issues or
matters as he considers fit in terms of Section 142(1) and
143(2) of the Act?
d) Whether the purported finding of the Learned Tribunal
that the issue of share capital/share premium has not been
properly looked into or investigated by the Assessing Officer
is wholly perverse and/or is based on no material and/or is
based on mere conjectures and surmises?
e) Whether on the facts and circumstances of the case,
the Learned Tribunal was justified in upholding the
proceedings under Section 263 inspite of the fact that the
proceedings were concluded in gross violation of the
principles of natural justice and/or improper service of show
cause notice?"
We have heard Mr. Subash Agarwal, learned Counsel for the
appellant and Mr. P. K. Bhowmick, learned counsel for the
respondent/revenue.
Learned counsel for the appellant fairly submitted that
identical issue and questions of law raised above were considered
and answered against the assessee by this Court in its decision
reported in 386 ITR 162(Cal) [Raj Mandir Estates (P) Ltd. versus
Principal Commissioner of Income Tax]. Following the said
decision, the present appeal (ITAT/318/2017)stands dismissed in
the above-mentioned substantial questions of law are answered
against the assessee.
The connected application for stay, IA NO.GA/1/2017(Old
NO.GA/2962/2017) also stands dismissed.
(T.S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
A/s.
