Calcutta High Court
Principal Commissioner Of Income Tax-2 vs M/S. Srei Infrastructure Finance ... on 24 May, 2024
Author: Hiranmay Bhattacharyya
Bench: T.S Sivagnanam, Hiranmay Bhattacharyya
OD-2
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION [INCOME TAX]
ORIGINAL SIDE
ITAT/147/2024
IA NO: GA/1/2024, GA/2/2024
PRINCIPAL COMMISSIONER OF INCOME TAX-2, KOLKATA
VS
M/S. SREI INFRASTRUCTURE FINANCE LIMITED
BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S SIVAGNANAM
-A N D-
HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
DATE : 24th May, 2024.
Appearance :
Mr. Aryak Dutt, Adv.
Mr. Prithu Dudhoria, Adv.
...for appellant.
Mr. Somak Basu, Adv.
...for respondent.
The Court :- We have heard learned Counsel on either side.
There is a delay of 182 deays in filing the appeal.
The explanation offered by the appellant department is acceptable and,
therefore, the delay in filing the appeal is condoned. The application is allowed.
This appeal filed by the Income Tax Department under Section 260A of
the Income Tax Act, 1961 (the Act) is directed against the order dated May 22,
2023 passed by the Income Tax Appellate Tribunal "A" Bench, Kolkata (the
Tribunal) in ITA No. 1318/Kol/2019 and ITA No. 1538/Kol/2019 for the
assessment year 2013-14. The revenue has raised the following substantial
questions of law for consideration :-
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a. Whether on the facts and in the circumstances of the case the ITAT
was justified in law in upholding the order of the CIT[A] by deleting the
addition of Rs.20,00,00,000/- on account of amount received on
transfer of "Voting Right" by holding that cost of acquisition of the said
rights could not be determined without considering the provisions of
section 55[2][aa] of the I.T. Act, 1961 which explicitly provide for cost of
acquisition of such asset as nil ?
b. Whether on the facts and in the circumstances of the case the ITAT
was justified in law in upholding the order of the CIT[A] by deleting the
addition of Rs.15,00,00,000/- on account of amount received from
assignment of rights to subscribe to equity shares holding that cost of
acquisition of the said rights could not be determined without
considering provisions of section 55[2][aa] of the I.T. Act, 1961 which
explicitly provide for cost of acquisition of such asset as nil ?
c. Whether on the facts and in the circumstances of the case the ITAT
was justified in law in upholding the order of the CIT[A] by deleting the
addition on account of amount received on transfer of Voting
Right/assignment of rights to subscribe to equity shares holding that
cost of acquisition of the said rights could not be determined without
considering the provisions of section 55[2][aa] of the I.T. Act, 1961
which explicitly provide for cost of acquisition of such financial asset as
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nil; financial asset as defined by World Law Dictionary being a non-
physical asset that can easily be converted into cash ?
d. Whether on the facts and in the circumstances of the case the ITAT
was justified in law in relying upon Hon'ble Supreme Court case in the
case of CIT vs. B C Srinivasa Setty [1981] 128 ITR 294 [SC] wherein
issue of self-whereas issue under generated goodwill has been
discussed consideration in case of assessee is transfer of Voting
Right/assignment of rights to subscribe to equity shares ?
e. Whether on the facts and in the circumstances of the case the ITAT
was justified in law in upholding the order of the CIT[A] by deleting the
addition of Short Term Capital Gain of Rs.20,00,00,000/- on account
of advance received from transfer of rights to purchase "the sale
shares" at a future date without considering the fact that as per the
binding agreement though the transfer of shares was to compulsorily
happen at a future date but receipt of the advance payment was done
during the year under consideration which automatically means
transfer of property took place at the time of agreement as per section
2[47] of the IT Act, 1961 ?
f. Whether on the facts and in the circumstances of the case the ITAT
was justified in law in upholding the decisions of the CIT[A] wherein it
has been held that calculation of disallowance u/s 14A can be done
considering only those investment which yielded exempt income during
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the year whereas explicit provisions of Act do not provide any such
condition ?
g. Whether on the facts and in the circumstances of the case the ITAT
was justified in law in holding that no interest expense disallowance
can be made u/s 14A on basis presumption that investments have
been made by assessee out of own funds/interest free fun ds without
considering the fact that assessee failed to provide linkage/nexus
between investment made and interest free funds ?
h. Whether on the facts and in the circumstances of the case the ITAT
was justified in law in upholding the order of the CIT[A] deleting the
addition of Rs.43,83,800/- made u/s 36(1)(iii) on the basis of
presumption that investments have been made by assessee out of own
funds/interest free funds ignoring that fact that assessee failed to
provide linkage/nexus between investment made and interest free
funds ?
i.Whether on the facts and in the circumstances of the case the ITAT was
justified in law in upholding the order of the CIT[A] allowing deduction
of Rs.7,61,48,526/- which was claimed by assessee only during
assessment proceedings; without considering the fact that binding
decision of Hon'ble Apex Court in the case of Goetze India Ltd.,
reported in 284 ITR 323 in applicable to Assessing Officer as well as
CIT[A] who has conterminous role as of Assessing Officer ?
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Mr. Somak Basu, learned Advocate appearing for the
respondent/assessee submitted that the respondent company went into
liquidation and the resolution plan has been approved by the National
Company Law Tribunal by order dated 11.08.2023.
Since the resolution plan has already been approved the instant appeal
has become infructuous and accordingly the same stands dismissed without
any order as to costs.
The substantial questions of law raised are left open.
.
(T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.) pkd/GH.