Calcutta High Court
Tax vs M/S. Rei Agro Limited on 7 March, 2022
OD-26
ITAT/416/2017
IA No.GA/2/2017 (Old No. GA/3804/2017)
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income Tax)
ORIGINAL SIDE
PRINCIPAL COMMISSIONER OF INCOME
TAX, CENTRAL-2, KOLKATA
-Versus-
M/S. REI AGRO LIMITED
Appearance:
Mr. Debasish Chaudhuri, Adv.
...for the appellant.
BEFORE:
The Hon'ble JUSTICE T.S. SIVAGNANAM
-And-
The Hon'ble JUSTICE HIRANMAY BHATTACHARYYA
Date : 7th March, 2022.
The Court : This appeal filed by the revenue under
Section 260A of the Income Tax, 1961 (the 'Act' in brevity) is
directed against the order dated 31st March, 2017 passed by the
Income Tax Appellate Tribunal, "C" Bench, Kolkata (in short the
'Tribunal') in ITA Nos.152 and 153/Kol/2014 for the assessment
years 2010-11 and 2011-12.
The revenue has raised the following substantial
question of law for consideration:
i) Whether on the facts and in the circumstances of
the case the Learned Income Tax Appellate
Tribunal, "C" Bench, Kolkata has erred in law in
deleting the addition made by the Assessing
Officer under Section 36(1)(va) read with Section
2(24)(x) of the Income Tax Act, 1961 on account of
delayed deposit of employees' contribution towards
PF/ESI without considering CBDT's Circular No.22
of 2015 dated December 17, 2015 ?
ii) Whether on the facts and in the circumstances of
the case the Learned Income Tax Appellate
Tribunal, "C" Bench, Kolkata has erred in law in
holding that the disallowances under Section 14A
of the Income Tax Act, 1961 read with Rule 8D of
the Income Tax Rules, 1962 is to be in relating to
the income which does not form a part of the total
income and this can be done only by taking into
consideration the investment which has given rise
to this income which does not form part of the
total income while as per Rule 8D, those
investments are also to be taken income from which
shall not form part of the total income ?
We have heard Mr. Debasish Chaudhuri, learned standing
counsel appearing for the appellant/revenue.
The second substantial question of law framed for
consideration is with regard to disallowance under Section 14A
of the Act read with Rule 8D of the Income Tax Rules, 1962. We
have perused the order passed by the tribunal which affirmed the
order passed by the Commissioner of Income Tax (Appeals)
Central-II, Kolkata [CIT(A)]. Identical issue arose in the
assessee's own case for the assessment year 2008-09 which was
decided in favour of the assessee by the CIT(A) and confirmed by
the tribunal. The revenue preferred appeal before this Court
and the appeal has been dismissed by judgment dated 9th April,
2014.
Thus, applying the decision of this Court, the said
issue was decided against the revenue and in favour of the
assessee, we find no ground to take a different view in the
matter as the said issue has already been decided in favour of
the assessee in the assessee's own case for earlier assessment
years. Accordingly, substantial question of law no.2 is
rejected.
So far as the first substantial question of law is
concerned, we note that identical issue has been entertained by
this Court in other appeals filed by the revenue and appeals
have been admitted as well. However, in the instant case, we
find the tax liability in so far as the disallowance of payment
of Provident Fund and ESI is far below the threshold limit in
both the assessment years which would prevent the
appellant/Department from pursuing this appeal. However, taking
note of the fact that similar substantial question of law has
already been admitted in other cases, we leave this question of
law open to be decided in an appropriate case.
In the result, the appeal filed by the revenue is
dismissed. Substantial question of law no.2 is answered against
the revenue and substantial question of law no.1 is left open as
we have dismissed the appeal against the revenue on the said
issue on the ground of low tax effect.
Consequently, the connected application for stay being
IA No.GA/2/2017 (Old No.GA/3804/2017) also stands closed.
(T.S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
As/RS
