Calcutta High Court
Income Tax vs M/S. Himadri Speciality on 31 October, 2022
OD-24
ITAT/170/2022
IA No.GA/1/2022
GA/2/2022
IN THE HIGH COURT AT CALCUTTA
Special Jurisdiction (Income Tax)
ORIGINAL SIDE
PRINCIPAL COMMISSIONER OF
INCOME TAX, CENTRAL-2, KOLKATA
-Versus-
M/S. HIMADRI SPECIALITY
CHEMICALS LIMITED
Appearance:
Mr. Prithu Dudheria, Adv.
...for the appellant.
Mr. J. P. Khaitan, Sr. Adv.
Mr. Saumya Kejriwal, Adv.
Ms. Ananya Rath, Adv.
Mr. G. S. Gupta, Adv.
... for the respondent.
BEFORE:
The Hon'ble JUSTICE T.S. SIVAGNANAM
-And-
The Hon'ble JUSTICE HIRANMAY BHATTACHARYYA
Date : 31st October, 2022.
The Court: We have heard Mr. Prithu Dudheria, learned
advocate for the appellant and Mr. J. P. Khaitan, learned
senior counsel assisted by Mr. Saumya Kejriwal, Ms. Ananya Rath
and Mr. G.S. Gupta, learned Advocates for the respondent.
There is a delay of 815 days in filing the appeal.
Substantial period of the delay was during the lockdown and the
remaining period is less than 50 days. Therefore, we exercise
discretion and condone the delay in filing the appeal.
Accordingly, the application for condonation of delay
(IA No.GA/1/2022) is allowed.
This appeal filed by the revenue under Section 260A of
the Income Tax Act, 1961 (the 'Act' for brevity) is directed
against the order dated 3rd January, 2020 passed by the Income
Tax Appellate Tribunal, "B" Bench, Kolkata (the Tribunal) in
ITA No.1351/Kol/2019 for the assessment year 2012-13.
The revenue has raised the following substantial
questions of law for consideration:
a) Whether on the facts and in the circumstances of the
case, the Learned Income Tax Appellate Tribunal has
erred in law in Foreign Exchange Fluctuation Loss on
External Commercial Borrowings (ECB) loans taken by
assessee mainly for purpose of purchasing capital
goods without considering the fact that the assessee
himself had capitalised Foreign Exchange Fluctuation
Loss with capital goods purchased ?
b) Whether on the facts and in the circumstances of the
case, the Learned Income Tax Appellate Tribunal has
erred in law in upholding the order of CIT (Appeals)
whereby disallowing market to Marked Loss (MTM Loss)
on foreign currency swaps while computing income u/s.
115JB, without considering the fact that assessee
himself had added MTM Loss on account of foreign
currency swaps, to his income calculated under normal
provisions of Income Tax Act ?
c) Whether on the facts and in the circumstances of the
case, the Learned Income Tax Appellate Tribunal has
erred in law in allowing deduction claimed u/s. 10B
of Income Tax Act, while computing income from
eligible unit under Chapter IV of Income Tax Act, and
not at the stage of computing gross total income as
per Chapter VI of Income Tax Act ?
It is not disputed by the revenue that as against the
order passed under Section 263, the revenue was in appeal
before this Court in the case of Principal Commissioner of
Income Tax, Central-1, Kolkata vs. Himadri Chemicals and
Industries Ltd. passed in ITA/124/2021 and the same was
dismissed by judgment dated 20th July, 2022. If that be the
position, the present appeal cannot be independently pursued by
the revenue. Furthermore, we note that substantial question of
law No.(c) as raised in the appeal was not raised by the
revenue in their appeal in ITA/124/2021.
In the light of the above, the revenue cannot pursue
this appeal and no interference is called for against the order
passed by the learned Tribunal.
Accordingly, the appeal (ITAT/170/2022) stands
dismissed.
Consequently, the connected application for stay (IA
No.GA/2/2022) stands closed.
(T.S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
A/s./S.Das.
