Calcutta High Court
Principal Commissioner Of Income ... vs M/S. Spml Infra Ltd on 5 September, 2022
O-10
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (INCOME TAX)
ORIGINAL SIDE
ITAT/61/2022
IA No.GA/1/2022, IA No.GA/2/2022
PRINCIPAL COMMISSIONER OF INCOME TAX 1, KOLKATA
Vs
M/S. SPML INFRA LTD.
BEFORE :
THE HON'BLE JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE SUPRATIM BHATTACHARYA
Date : 5th September, 2022
Appearance :
Mr. Tilak Mitra, Adv.
...for the appellant.
Mr. J.P. Khaitan, Sr. Adv.
Mr. Saumya Kejriwal, Adv.
Mr. G.S. Gupta, Adv.
...for the respondent.
The Court: We have heard Mr. Tilak Mitra, learned standing counsel
appearing for the appellant/revenue and Mr. J.P. Khaitan, learned senior
counsel for the respondent/assessee.
Re.: IA No.GA/1/2022
There is a delay of 744 days in filing the instant appeal. On perusal of
the relevant dates, we find that the appellant/revenue is entitled to the benefit
of the order passed by the Hon'ble Supreme Court extending the period of
limitation for filing appeals under various statues. For such reason, the delay
in filing the appeal is condoned and the application being IA No.GA/1/2022 is
allowed.
Re.:ITAT/61/2022
The appeal is admitted on the following substantial questions of law:
1) Whether the Learned Tribunal committed substantial error in law in
deleting the disallowance of Rs.5,42,00,000/-, reported as
accommodation entry claimed as bogus expenditure on observation
that the assessee was not given opportunity to counter the statement
and cross-examination of the person whereas, Hon'ble Income Tax
Appellate Tribunal could have set-aside the case for fresh examination
in view of the judgment of Hon'ble Supreme Court in the case of
M.Pirai Choodi Vs. ITO [2012] 20 taxmann.com 733 (SC)?
2) Whether the Learned Tribunal has committed substantial error in law
in deleting the disallowance of Rs.14,83,51,419/- on account of
Provision for Future Loss being unascertained liability?
3) Whether the Learned Tribunal has committed substantial error in law
by allowing the payment for employees' contribution to PF/ESI which
were paid after the respective due dates as prescribed in the Act
whereas Section 36(1)(va) of the Act clearly states that the payment
will be allowed on payment on or before the due date?
4) Whether the Learned Tribunal has committed substantial error in law
by facts and circumstances of the case and in law, the Hon'ble Income
Tax Appellate Tribunal erred in laws observe that provision under
Section 14A cannot be made for the purpose of computing Book Profit
under Section 115JB of the Act?
The revenue has raised the following two questions as well:
b) Whether the Learned Tribunal has committed substantial error in law
in deleting the disallowance of Rs.14,83,51,419/- on account of
Provision for Future Loss being unascertained liability?
c) Whether the Learned Tribunal has committed substantial error in law
by directing the Assessing Officer to delete the disallowance under
Section 14A of the Income Tax Act, 1961?
So far as the question no.(b) is concerned, we have perused the order
passed by the Tribunal which has affirmed the order passed by the
Commissioner of Income Tax (Appeals). The discussion starts from paragraph
20 of the impugned order. In fact, the learned Tribunal has extracted the
entire factual finding recorded by the CIT(A) by allowing the assessee's appeal.
Further, the Tribunal noted that Accounting Standard (AS-7) provides for such
eventuality. Thus, we find that there is no substantial question of law arising
for consideration on the said issue. Therefore, question no.(b) is not admitted.
So far as the question no.(c) is concerned, the Tribunal after noting the
factual finding recorded by the CIT(A) held that the assessee has not earned
any exempt income and, therefore, no disallowance is warranted. This being
the factual conclusion, we find that there is no question of law arising for
consideration on the said issue. Accordingly, question no.(c) is not admitted.
The appellant shall file requisite number of informal paper books
prepared out of Court within ten weeks from date by serving advance copy on
the respondent.
Since the respondent is represented by its learned counsel, service of
notice of this appeal on the respondent is waived.
Settlement of index and all other formalities are dispensed with.
List the appeal being ITAT/61/2022 after twelve weeks.
The application for stay being IA No.GA/2/2022 stands closed.
(T.S. SIVAGNANAM, J.)
(SUPRATIM BHATTACHARYA, J.)
S.Pal/s.chandra
