COMMISSIONER OF INCOME TAX, KOLKATA-I, KOLKATA vs. HOOGHLY MILLS PROJECTS LTD, C/O SALARPURIA JAJODIA & CO.

OD-10 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION (INCOME TAX) ORIGINAL SIDE ITAT/73/2015 IA No:GA/2/2015 (Old No.:GA/1518/2015) COMMISSIONER OF INCOME TAX, KOLKATA-1, KOLKATA VERSUS HOOGHLY MILLS PROJECTS LTD., C/o, SALARPURIA JAJODIA & CO. BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAM And THE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : 10th May, 2022. Appearance:- Ms. Smita Das De, Adv.

…for Appellant Mr. Siddhartha Das, Adv. Mr. Asim Chowdhury, Adv. Mr. Sovan Sen, Adv. … for Respondent

The Court : This appeal by the revenue filed under Section 260A of the Income Tax Act, 1961 (the Act for brevity) is directed against the order dated 1st August, 2014 passed by the Income Tax Appellate Tribunal “A” Bench, Kolkata in I.T.A. No. 1729/Kol/2011 for the assessment year 2005-06. The revenue has raised the following substantial questions of law for consideration :- i) Whether on the facts and in the circumstance of the case, the Learned Tribunal was justified in law in deleting the addition of Rs.11,87,00,000/- made by the Assessing Officer on account of deemed dividend income under section 2(22)(e) of the said Act ?

2 ii) Whether on the facts and in the circumstances of the case, the Learned Tribunal was justified in law in accepting that the registered shareholding of the assessee company is Rs.10,99,300/- shares only as per shareholder register of the assessee as well as M/s. Mega Resources Ltd. despite the fact hat the assessee company was holding Rs.13,90,100/- (more than 10%) number of equity shares ? We have heard Ms. Smita Das De, learned standing counsel for the appellant/revenue and Mr. Siddhartha Das, learned Advocate appearing for the respondent/assessee. It is not disputed before us that identical issue was considered by us in the assessee’s own case in ITAT No.153 of 2017 dated 17th November, 2021 and ITAT No. 267 of 2017, dated 25th November, 2021. In those cases, we have taken note of the decision rendered in ITA No. 97 of 2011 dated 13th June, 2016 in the assessee’s own case for the assessment year 2005- 06 and dismissed the appeal. The operative portion of the judgment reads as follows:- “It is not disputed before us by the Revenue that identical substantial questions of law in the assessee’s own case for the assessment year 2005- 06 were considered by the Hon’ble Division Bench in ITA No.97 of 2011 and by judgment dated 13.06.2016 the appeal was dismissed and the questions were answered against the Revenue. The said judgment reads as follows: “The appeal is directed against a judgment and order dated 17th September, 2010 passed by the Income Tax Appellate Tribunal, Bench-C, Kolkata in ITA 914/Kol/2010 pertaining to the assessment year 2005-06 by which the appeal preferred by the assessee was allowed and the order under Section 263 was set aside. The aggrieved revenue has come up in appeal.

3 The followng question of law was formulated at the time of admission of the appeal: “I. Whether the learned Tribunal below committed substantial error of law in setting aside the order under Section 263 of the Income Tax holding the same is not erroneous and prejudicial to the intrest of the Revenue, notwithstanding the fact that the same Bench in the case of M/s. Hooghly Mills Project Ltd. in ITA No. 913/Kol/2010 has held that the order of the Assessing Officer is erroneous and prejudicial to the interest of the Revenue. II. Whether the learned Tribunal below committed substantial error of law in cancelling order under Section 263 of the Act wherein the assessment was set aside on the grounds of failure to make enquiry and addition under Section 36(i)(v)(a) read with Section 2(24)(x) of the Act on account of Employees’ Contribution to Provident Fund due to non-deposit of contribution within the date to the appropriate authority. Mr. Khaitan, appearing for the assessee submitted that the first question is unmeritorious. In the case of Hooghly Mills Project Ltd. the point of applicability of Section 2(22)(e) was raised on the basis that the shareholding was more than 10%; whereas in the case before us, the shareholding is restricted to 5.27%. Therefore, there was no question of applicability of any deemed dividend. In so far as the second question is concerned, he pointed out that the payment of arrear provident fund was in accordance with the order passed by the High Court. The same practice, as a matter of fact, he added, had been continuing for some time. In respect of one of the earlier years, the assessing Office had disallowed the payment of provident fund though made in pursuance of order of Court, but subsequently that was allowed by the CIT(Appeal). He, therefor, submitted that both the questions raised by the revenue are without any substance. Mr. Sinha, learned Advocate appearing for the revenue is unable to dispute any of he submissions advanced by Mr. Khaitan. In that view of the matter, both the questions are answered in the negative and against the revenue. The appeal, is, thus dismissed.

4 In the light of the above decision which binds the Revenue, the present appeal cannot be entertained. Accordingly, he appeal stands dismissed and the substantial questions of law are answered against the Revenue.” Thus, following the above decision, the appeal filed by the revenue is dismissed and the substantial questions of law are answered against the revenue. Accordingly, the application being GA/2/2015 (Old No.:GA/1518/2015) stands dismissed. (T.S. SIVAGNANAM, J.)

(HIRANMAY BHATTACHARYYA, J.) SN/GH. AR(CR)