Principal Commissioner Of Income ... vs Shri Sanjay Dhingra
2022 Latest Caselaw 2818 Cal/2

OD-16
Wt 17

                      IN THE HIGH COURT AT CALCUTTA
                   SPECIAL JURISDICTION (INCOME TAX)
                             ORIGINAL SIDE

                                ITAT/21/2021
                        IA No: GA/1/2021, GA/2/2021

     PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL 1, KOLKATA
                                VS.
                       SHRI SANJAY DHINGRA

                                ITAT/20/2021
                              IA No: GA/2/2021

     PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL 1, KOLKATA
                                VS.
                          SIDHANT GUPTA


BEFORE :

THE HON'BLE JUSTICE T.S. SIVAGNANAM
            And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 22nd November, 2022


                                                                   Appearance :
                                                           Mr. Tilak Mitra, Adv.
                                                Mr. Soumen Bhattacharjee, Adv.
                                          ...for the appellant in ITAT 21 of 2021.

                                                      Mr. Prithu Dudhoria, Adv.
                                          ...for the appellant in ITAT 20 of 2021.

                                                      Mr. Avra Mazumder, Adv.
                                                      Mr. Binayak Gupta, Adv.
                                                         ...for the respondents.

The Court : There is a delay of 502 days in filing the appeal being

ITAT/21/2021. We are satisfied with the reasons given in the affidavit filed in

support of the condone delay petition. Accordingly, the delay in filing the appeal

is condoned and the application for condonation of delay is allowed.

These appeals have been filed by the revenue under Section 260A of the

Income Tax Act, 1961 (the Act, for brevity) challenging the orders dated 24th

April, 2019 passed by the Income Tax Appellate Tribunal, 'B' Bench, Kolkata

(Tribunal) in ITA No.232/Kol/2017 and C.O. No. 37/Kol/2017 and ITA

No.234/Kol/2017 and C.O. No.27/Kol/2017 respectively, both for the

assessment year 2013-14.

The revenue has raised the following substantial questions of law for

consideration :-

"(i) Whether on the facts and circumstances of the case and under law, the

ITAT has erred in dismissing the revenue's appeal when all the conditions

specified in Section 271AAB(1)(c) of the Income Tax Act, 1961 were

satisfied for imposing the penalty ?

(ii) Whether on the facts and circumstances of the case and under law, the

ITAT has erred in holding that penalty u/s. 271AAB of the Income Tax Act,

1961 is not mandatory and is discretionary without considering the

provision of section 273B of the Income Tax Act, 1961 which specifically

mentions the penal sections under which penalty may not be imposed on

a person or an assessee, as the case may be, for any failure referred to in

the said provisions if he proves that there was reasonable cause for the

said failure, but excludes the penal section 271AAB of the Income Tax Act,

1961 from its purview ?"

We have heard Mr. Prithu Dudhoria and Mr. Tilak Mitra, learned standing

counsel appearing for the appellant/revenue and Mr. Avra Mazumder, learned

counsel assisted by Mr. Binayak Gupta, learned Advocate for the

respondent/assessee.

On perusal of the order passed by the learned Tribunal, we find that the

learned Tribunal had followed the decision of the coordinate Bench of the

Tribunal in the case of DCIT vs. A.K. Logistics Pvt. Ltd. in ITA

No.1604/Kol/2017, No. 1607/Kol/2017 and No. 1610/Kol/2017, dated 27th

February, 2019. When these appeals came up for hearing before us on 7th

March, 2021, we directed the learned standing counsel for the department to

verify as to whether the department has accepted the decision in AKA Logistics

Pvt. Ltd. or whether any appeal has been filed. Today it is reported by the

standing counsel that appeal could not be preferred in the said case on account

of the low tax effect.

In such factual situation, we are required to examine the matter on merits

and render finding as to whether the Tribunal was right in dismissing the

revenue's appeal. On going through the order passed by the learned Tribunal, we

find no finding has been recorded by the learned Tribunal as to how the decision

in AKA Logistics Pvt. Ltd. (supra) would apply to the case on hand and there is

no discussion on the factual aspect. That apart, the learned Tribunal has also

not given any finding as to how the decision relied on by the revenue in the case

of Sandeep Chandak vs. PCIT, Kanpur, (2018) 93 taxmann.com 406 (SC) is not

applicable to the case on hand or it is factually distinguishable.

It is the submission of the learned counsel for the respondent/assessee

that in the case of AKA Logistics, the Court had taken note of the decision in the

case of Sandeep Chandak.

Though such may be the factual position, in the absence of any

independent reasoning by the learned Tribunal with regard to the merits of the

matter of the respondent/assessee, it will not be possible for us to test the

correctness of the order passed by the learned Tribunal, more particularly, when

we are to ascertain as to whether any substantial question of law arises for

consideration.

Thus, for such reason alone we are inclined to interfere with the order

passed by the learned Tribunal and remand the matter to the Tribunal for a

fresh decision on merits.

In the result, the appeals are allowed and the order passed by the learned

Tribunal is set aside and the matters stand remanded to the Tribunal to render

a decision after considering the merits of the matter and also the judgments that

may be relied upon by the parties to the litigation.

Consequently, the substantial questions of law are left open.

The applications for stay stand closed.

(T.S. SIVAGNANAM, J.)

(HIRANMAY BHATTACHARYYA, J.) s.pal/SN.