The main legal point established in the judgment is the interpretation and application of the provisions of Section 80Ia of the Income Tax act, 1961.

JUDGMENT

T.S. Sivagnanam, J. - We have heard Mr. P.K. Bhowmick, learned standing Counsel for appellant/revenue and Mr. agnibesh Sengupta, learned Counsel for respondent/assessee.

2. There is a delay of 983 days in filing this appeal and the respondent/assessee has filed an affidavit-in-opposition pointing out that substantial portion of the delay remains unexplained and the little explanation given for the remaining period is also bereft of particulars. We find that the delay of eight months i.e. from 5.9.2018 to 24.4.2019 has not been explained . Similarly the delay from 15.7.2019 to 17.2.2020 has not been explained. Therefore, we would have been well justified in dismissing the application and refusing to condone the delay. However, since the appeal has been filed by the revenue under Section 260a of the act we thought fit to consider as to whether any substantial questions of law would arise for consideration in this appeal. When this suggestion was put forth to the learned Counsel for the parties, learned Counsels readily agreed to argue the main appeal itself on merits. Hence for that reason alone we exercise discretion and condone the delay in filing the appeal.

ITaT/75/2021 :

3. This appeal by the revenue filed under Section 260a of the Income Tax act, 1961 (the act) is directed against the order passed by the Income Tax appellate Tribunal 'C' Bench (Tribunal) dated 02.05.2018 in ITa/813 to 816/Kol/2017 for the assessment years 2009-10 to 2012-13.

4. The revenue has raised the following substantial questions of law for consideration:

1. Whether in the facts and circumstances of the case and in law, the Learned Income Tax appellate Tribunal, Kolkata is justified in quashing the revisionary order under section 263 passed by the Learned Pr. Commissioner of Income Tax, Central-1, Kolkata for the year 2009-10, 2010-11 & 2011-12 on the ground the assessment years became unabated proceedings without considering the provisions of Section 153a of the Income Tax act that the assessing Officer shall assess or reassess the total Income of six assessment years immediately preceeding the assessment year relevant to the previous year in which such search is conducted or requisition is made as nowhere in the act it is stated that the assessment should be made on the basis of seized document?

2. Whether on the facts and circumstance of the case and in law, the Learned Income Tax appellate Tribunal was justified in admitting fresh evidence by acknowledging the letters filed by the assessee as evidence that M/s. Rashmi Cement Pvt Ltd and M/s. Orissa Metaliks Pvt Ltd have for certain periods used the railway sidings thereby concluding that the infrastructure facility was used by other parties also when the fact is that these closely held Private Limited Companies are group companies of Rashmi Group and cannot be treated as separate entity?

3. Whether on the facts and circumstances of the case and in law, the Learned Tribunal Tax appellate Tribunal was justified in holding that the assessee is entitled to deduction under section 80Ia and quashing the order under Section 263 thereby denying that assessing Officer to conduct enquiry relating to the claim under section 80Ia particularly in the light of freight evasion which could have an impact on the agreement with the railways and consequent denial of 80Ia claim for the assessment Year 2012-13?

5. We have heard Mr. P K Bhowmick, learned Counsel duly assisted by Mr. asok Bhowmick for the appellant/revenue and Mr. agnibesh Sengupta, learned Counsel for the respondent/assessee.

6. The short question involved in this appeal is whether the assessee was entitled to the benefit of deduction under Section 80-Ia(4). The assessing officer completed the assessment under Section 153a read with Section 143(3) by order dated 31.03.2015. Though there were several issues involved, the issue which is the subject matter for consideration before us was decided in favour of the assessee, vide order dated 31st March, 2015