Calcutta High Court
Principal Commissioner Of Income ... vs M/S. Graphite India Limited on 2 February, 2022
OD-11
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (INCOME TAX)
ORIGINAL SIDE
ITAT/235/2018
IA NO: GA/2/2018 (Old No.GA/2104/2018)
PRINCIPAL COMMISSIONER OF INCOME TAX, KOLKATA-4, KOLKATA
VERSUS
M/S. GRAPHITE INDIA LIMITED
BEFORE :
THE HON'BLE JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 2nd February, 2022
Appearance :-
Mr. Debasish Chowdhury, Adv.
... For Appellant
Mr. J.P. Khaitan, Sr. Adv.
Mr. Somak Basu, Adv.
... For Respondent
The Court : We have heard Mr. Debasish Chowdhury, learned
Standing Counsel appearing for the appellant/revenue and Mr. J.P.
Khaitan, learned Senior Counsel, assisted by Mr. Somak Basu,
learned Advocate for the respondent/assessee.
The appeal is admitted on the following substantial questions of
law :-
i) Whether in the facts and circumstances of the case the Tribunal
is right in coming to the conclusion that the furnishing
corporate guarantee by the assessee to its subsidiaries in
Germany is not an international transaction ?
ii) Whether in the facts and circumstances of the case the Tribunal
was justified in law to hold that the taxes or levies are to be
included in the electricity tariff without considering Section 62
of the Electricity Act, 2003 ?
The other substantial questions of law suggested by the revenue
in paragraph 8(ii), (iii) and (iv) of the Memorandum of appeal are
rejected as we find that there is no error committed by the Tribunal
while deciding those issues.
Mr. J.P. Khaitan, learned Senior Counsel submitted that in so
far as the second question on which this appeal has been admitted
pertaining to the effect of Section 62 of the Electricity Act, 2003,
though the said issue was raised in the assessee's own case for the
assessment year 2004-05 in ITAT 234 of 2017, that issue was not
pressed as noted by the Hon'ble Division Bench in its judgment dated
4th July, 2018. Further, it is submitted in the very same judgment the
other two questions relating to the direction under Section 80HHC
and the question as to whether expenditure for laying down the power
evacuation line to connect the assessee's plant to the grid belonging to
the State Electricity Board would constitute revenue expenditure or
capital expenditure were also not entertained and the appeal filed by
the revenue was dismissed by judgment dated 4th July, 2018. Further,
it is submitted by the learned Senior Counsel that for the assessment
year 2005-06 no such question has been framed by the revenue with
regard to the effect of Section 62 of the of the Electricity Act, 2003.
These arguments which have been noted by us will be considered
when the appeal is heard.
Let the appellant file requisite number of informal paper books
prepared out of Court within eight weeks from date after serving
advance copy on the counsel for the respondent/assessee.
Since the respondent is represented by their learned Counsel,
service of notice of appeal on them is waived.
Settlement of index and all other formalities are dispensed with.
The respondent/assessee is permitted to file a supplementary
paper book containing the records which were filed before the
Tribunal.
The stay application being GA/2/2018 (Old No.GA/2104/2018)
stands disposed of.
List the matter after 12(twelve) weeks.
(T.S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
SN/S.Das
AR(CR)
