Calcutta High Court
Income Tax Officer vs B. D. Plywoods Pvt. Ltd on 25 April, 2025
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
OD-4
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT /27/2025
IA NO: GA/1/2025, GA/2/2025
INCOME TAX OFFICER, WARD 13(1), KOLKATA
VS.
B. D. PLYWOODS PVT. LTD.
BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS)
Dated : 25TH APRIL, 2025
Appearance:
Mr. Prithu Dudhoria, Adv.
..for Appellant
Mr. Brijesh Kumar Singh, Adv.
Mr. Om Prakash Prasad, Adv.
...for the Respondent
THE COURT: There is a delay of 234 days in filing the present intra-
court appeal. The respondent/assessee filed their affidavit-in-opposition
objecting to the prayer for condonation of delay.
We have perused the application being GA/1/2025, which has been
filed by the appellant/department to condone the delay of 234 days in filing
the appeal. The impugned order is dated 12.5.2023 which was passed after
hearing the learned counsel appearing for the department. It is admitted
that the order was communicated to the office of the Principal Commissioner
of Income Tax-5, Kolkata, Faceless Assessment Unit, on 26.7.2023. It is
thereafter that feasibility report was called for from the Assessing Officer,
which was submitted on 31.8.2023, after which on 8.9.2023 judicial folder
was sent to the office of the CIT (Judicial) Kolkata for filing review
application before the learned Single Bench of this Court. CIT(Judicial) made
his recommendation on 14.9.2023 which was approved by the Chief
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Commissioner of Income Tax-1, Kolkata. However, it appears that the review
petition was not filed and the Assessing Officer by letter dated 16.10.2023
forwarded the judicial folder to PCIT-5 for filing appeal. Thereafter the
matter was dealt with administratively and the department would contend
that more than 800 assessees were involved and only the writ petition
number was mentioned in the order without the name and PAN number of
the assessee and other factors, which led to the delay.
It is further stated that PCIT-5, Kolkata and the ITO-13(1), Kolkata
and ITO Ward-13(1), Kolkata lost track of the case and could not make
further communication for preferring an appeal. Ultimately, the appeal was
preferred only on 31.1.2005. The respondent No.3 has objected to the delay
by filing their affidavit-in-opposition. It is submitted that the department
could not have had any difficulty in identifying the matter as the assessee
had intimated about the order passed by the learned Single Bench dated
12.5.2005 and intimation was duly acknowledged by the department.
Therefore, it is submitted that the department was negligent and the
explanation sought to be given for the inordinate delay of 234 days should
not be accepted.
We have elaborately heard the learned Counsel appearing for the
parties both on the question of prayer for condonation of delay as well as on
the merits of the matter as submissions were made by the learned Counsel
on the merits as well.
The revenue relies on the decision in the case of Giriraj Commercial
Private Limited vs. Union of India And Ors., WPO/1122/2023 dated 12 th July,
2023. On going through the said decision, we find that the same is factually
3
different and considering the factual position, the learned Single Bench in
the said case referred to Section 151 read with 149(1), fifth and sixth proviso
and rejected the case of the writ petitioner/assessee. However, in the instant
case, the factual position is entirely different. Firstly, the assessee’s specific
stand was that notice under 148A(b) of the Act was never served and the
period of three years came to an end on 31st March, 2022 and the order
passed under Section 148A(d) was passed on 7.4.2022. Apart from that, the
question of applicability of the fifth and sixth proviso would not arise in the
case in hand because the said amendment which was by Finance Act, 2023
was with effect from 1.4.2023. Therefore, the learned Single Bench was fully
justified in passing the impugned order.
We also find that the learned Single Bench did not foreclose the rights
of the department but granted them liberty to rectify the irregularity and
take approval from the specified authority. Therefore, no ground has been
made out to interfere with the impugned order.
For the above reasons, GA/1/2025 as well as APOT/27/2025 are
dismissed.
The stay application (GA/2/2025) also stands dismissed.
(T.S. SIVAGNANAM, CJ.)
(CHAITALI CHATTERJEE (DAS), J.)
sm/SN
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