Calcutta High Court
C. E. S. C. Ltd vs Commissioner Of Income Tax on 14 February, 2022
OD-34
ITA/107/2004
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income Tax)
ORIGINAL SIDE
C. E. S. C. LTD.
-Versus-
COMMISSIONER OF INCOME TAX,
KOLKATA-II
Appearance:
Mr. J. P. Khaitan, Sr. Adv.
Ms. Nilanjana Banerjee Pal, Adv.
...for the appellant.
Mr. Smarajit Roychowdhury, Adv.
Mr. Asok Bhowmick, Adv.
...for the respondent.
BEFORE:
The Hon'ble JUSTICE T.S. SIVAGNANAM
-And-
The Hon'ble JUSTICE HIRANMAY BHATTACHARYYA
Date : 14th February, 2022.
The Court : This appeal filed by the assessee under
Section 260A of the Income Tax Act, 1961 (the 'Act' in brevity) is
directed against the consolidated order dated 29th October, 2003
passed by the Income Tax Appellate Tribunal, "E" Bench, Kolkata
(in short the 'Tribunal') in ITA No.1872(Kol) of 2002 for the
assessment year 1994-95.
The appeal was admitted to decide the following
substantial question of law:
I) Whether having regard to the settled legal proposition and
having regard to the fact that the profits of the entire
business and the sale proceeds were all deposited in the
mixed overdraft account, the finding of the Tribunal that
the sum by which the shares were purchased or the
investments were made, came out of the overdraft and not
out of the profits deposited with the mixed overdraft
account is unreasonable and perverse and without any
material or evidence whatsoever ?
II) Whether the Tribunal was justified in upholding the action
of the Assessing Officer in thrusting upon depreciation
allowance of Rs.65,69,72,275/- on the petitioner ignoring
the petitioner's claim to withdraw the depreciation made
vide its letter dated 18.2.`1997 in the course of
assessment proceedings, only on the ground that no revised
return was filed under section 139(5) withdrawing the claim
of depreciation and in doing so whether justified in
failing to take into consideration the ratio of decisions
of the Hon'ble Supreme Court and jurisdictional High Court
?"
We have heard Mr. J.P. Khaitan, learned senior counsel
assisted by Ms. Nilanjana Banerjee Pal, learned Advocate for the
appellant/assessee and Mr. Smarajit Roychowdhury, learned Counsel
for the respondent/revenue.
Learned senior counsel for the appellant, on instruction,
submitted that though two substantial questions of law were
admitted by this Court by order dated 24th June, 2004, he has been
instructed by the learned counsel on record not to press the
substantial question of law no.2. Accordingly, the substantial
question of law no.2 is not pressed and the question is left upon.
The substantial question no.1 is with regard to the
investments made in a subsidiary company and the manner in which
the assessing officer treated those investments. Identical
question arose for consideration in the assessee's own case for
the assessment years 1992-93 and 1993-94 which were also
considered by the tribunal by the consolidated order dated 29th
October, 2003 which is impugned before us for the assessment year
1994-95. For the assessment year 1994-95, the assessee carried
the matter in appeal before this Court in ITA No.107 of 2004 and
by judgment dated 26th November, 2014 the appeal was allowed. The
same judgment was followed in the assessee's own case for the
assessment year 1993-94. Thus, we find that there is no
distinguishing factor in the case on hand for not applying the
decisions of this Court rendered for the earlier assessment years
which also challenged the very same impugned order.
Thus, following the above decision, the appeal filed by
the assessee is allowed and the substantial question of law is
answered in favour of the assessee.
(T.S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
S.DasA/s.
