Calcutta High Court
Principal Commissioner Of Income Tax ... vs M/S. Warren Tea Ltd on 3 January, 2019
Author: I. P. Mukerji
Bench: I. P. Mukerji
OD1
GA No. 1338 of 2017
ITAT No. 130 of 2017
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (INCOME TAX)
ORIGINAL SIDE
Principal Commissioner of Income Tax (Central), Kolkata - 2
Versus
M/s. Warren Tea Ltd.
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice AMRITA SINHA
Date: 3rd January 2019
Appearance:
Mr. S. N. Dutta, Advocate
for the appellant
Mr. Agnibesh Sengupta, Advocate
Mr. Subhadip Roy, Advocate
for the respondent
The Court: The only substantial question of law raised in this intended appeal by the revenue is whether the tribunal correctly applied section 33AB(7) of the Income Tax Act, 1961?
Some complications in this case have arisen out of these facts. An identical issue was raised in an earlier appeal (ITA No. 1773/Kol/1997 under section 260A before this Court. The said appeal was dismissed on 6th February 2015 on the technical ground that the notice of appeal had not been properly served.
Mr. Dutta, learned counsel for the revenue submits that there was no adjudication on merits. On the other hand, Mr. Sengupta for the assessee contends that because the earlier decisions of the tribunal have not been reversed, the impugned order of the tribunal followed those decisions. By doing so it could not be said that there was any error in law or in facts committed by the tribunal.
Thereafter our attention was drawn to an order of another Division Bench of this Court dated 19th July 2018 in respect of another identical 2 appeal (ITA 130 of 2017 with GA No. 1338 of 2017) for the assessment year 2003-2004. On 19th July 2018 the Division Bench passed an order referring to the said appeal against the decision of the tribunal in ITA No. 1773/Kol/1997 as well as another appeal. It is common ground that the other appeal does not cover the point in issue. As far as the 1997 appeal is concerned the Court remarked that learned counsel for the revenue could not apprise the Court about the steps taken in that appeal.
In the light of the above facts, there is no doubt that whether section 33AB(7) of the said Act has been correctly applied by the tribunal or not has not been decided on merits by this Court. Nonetheless the above factors like dismissal of ITA 1773/Kol/1997 on the above technical ground and no steps having been taken by the revenue to get the matter heard on merits and the alleged failure of the revenue to take any steps with regard to the appeal (ITAT 130 of 2017) are all relevant facts for establishing whether there was acquiescence of the revenue to the existing orders of the tribunal or whether the department accepted those orders.
In those circumstances, we admit the appeal and direct that the same be heard on the question of law whether there was proper application of section 33AB(7) of the Income Tax Act, 1961 on the facts and in the circumstances of the case, taking into account the conduct of the revenue referred to hereinabove.
Since the respondent is represented by the learned counsel, issuance and service of notice of the appeal are dispensed with. The advocate-on-record for the appellant is directed to file informal paper books by 8th February 2019, serving a copy thereof on the advocate-on- record for the respondent not later than four days before the date of hearing of the appeal. All other formalities are dispensed with.
List the appeal for hearing on 26th February 2019. 3 The stay application (GA No. 1338 of 2017) is accordingly disposed of.
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I. P. MUKERJI, J.) (AMRITA SINHA, J.) R. Bose