Calcutta High Court
Principal Commissioner Of Income Tax 2 … vs Amritrashi Infra Private Limited on 20 March, 2026
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
OD 2
ORDER SHEET
ITAT/5/2026
IA NO: GA/1/2026, GA/2/2026
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (INCOME TAX)
ORIGINAL SIDE
PRINCIPAL COMMISSIONER OF INCOME TAX 2 KOLKATA
VS
AMRITRASHI INFRA PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE RAJARSHI BHARADWAJ
AND
The Hon'ble JUSTICE UDAY KUMAR
Date: 20th March, 2026.
Appearance:
Mr. Amit Sharma, Adv.
Mr. Abhishek Kr. Agrahari, Adv.
. . .for the appellant.
Mr. Subhas Agarwal, Adv.
Mr. Amit Shaw, Adv.
Ms. Sangita Das, Adv.
. . .for the respondent.
The Court: Heard learned counsel appearing for either of the parties.
There is a delay of 248 days in filing the appeal. We are satisfied with the
explanation offered for not preferring the appeal within time. Therefore, the delay
is condoned. The application being GA/1/2026 is allowed.
The following substantial questions of law have been suggested by the
appellant.
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“(i) Whether the Learned Tribunal has substantially erred in law in
upholding the order of the Commissioner of Income Tax (Appeals)
whereby the order under Section 143(3)/263 of the Income Tax Act,
1961 dated 30.12.2019 on the premise that the revisionary order
under Section 263 of the Income Tax Act, 1961 on the basis of which
was assessment order was passed, was already quashed by the
Learned Tribunal?
(ii) Whether in the Learned Income Tax Appellate Tribunal has
committed substantial error in law in quashing the order under
Section 263 of the Income Tax Act, 1961 vide order dated 12.08.2020
in ITAT No.838/Kol/2019 when it is apparent from the records that
the earlier assessment order dated 07.12.2016 is erroneous and
prejudicial to the interest of the Revenue inasmuch as the same has
been passed by the assessing officer without making due and proper
enquiry?
(iii) Whether the Learned Tribunal has substantially erred in law in
holding vide order dated 12.08.2020 in ITAT No.838/Kol/2019 that
revisionary powers under Section 263 of the Income Tax Act, 1961
had been wrongly exercised by the Learned PCIT, in the instant case,
while ignoring the provision of the Explanation – 2 to the Section 263
of the Income Tax Act, 1961?
Perused the impugned order of the Tribunal dated 15 th October, 2024.
Learned Tribunal’s order dated 15 th October, 2024 read as under:
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“Being aggrieved and dissatisfied with the appellate order the
Revenue has preferred the present appeal on the ground that ld.
CIT(A) has to adjudicate the matter on merit.
2. None appeared on behalf of the assessee. On perusal of the
record, it appears to us that the impugned order passed on the basis
that order passed u/s 263 of the Act has been declared null and void
by the ITAT, Kolkata and it is a fact that the ld. CIT(A) in its order
has clearly held which is essential to reproduce herein below:
“4.1. Being aggrieved by the order u/s. 263 of the Act dated
14.03.2019 the appellant preferred appeal before Hon’ble ITAT,
‘B’ Bench, Kolkata. The Hon’ble ITAT vide its order ITA No.
838/Kol/2019 dated 12.08.2020 quashed the order u/s. 263
of the Act dated 14.03.2019. The relevant part of the Hon’ble
ITAT’s order is placed here under:
“58. However, we note that the Ld. CIT(A) has made a bald
statement that the AO’s assessment order attracts Explanation
2(c) u/s. 263 of the Act. However, he failed to spell out in his
impugned order how the action of AO while framing the
assessment order is not in accordance to any order, direction
or instruction issued by the Board under section 119 of the
Act. So, the deeming fiction as envisaged in Explanation (2)
u/s. 263 of the Act cannot be used to interfere with the order
of AO. This action of Ld. Pr. CIT is bad for nonapplication of
4mind. In the light of the aforesaid discussion and case laws
cited supra, we find merit in the appeal filed by the assessee,
therefore, we allow the appeal of assessee on the ground that
since the Ld. Pr CIT has exercised his revisional jurisdiction
u/s. 263 without satisfying the condition precedent as
stipulated in section 263 of the Act. Therefore, we hold that the
impugned action of the Ld. Pr. CIT is without jurisdiction and,
therefore, is null in the eyes of law and consequently it is
quashed and since we allowed ground number 2 & 3 of the
original grounds raised by the assessee, the other additional
grounds are left open. As discussed the impugned order of Ld.
Pr CIT is quashed.”
3. Keeping in view the above facts that the order passed u/s
263 of the Act, on that basis the AO has passed order has
already been quashed being the subsequent order passed u/s
143(3) of the Act read with Section 263 of the Act, no doubt
becomes ab initio void. We do not find any merit in this appeal.
Accordingly, the appeal is hereby dismissed.
4. In the result, the appeal filed by the Revenue is dismissed.”
As the order passed under Section 263 of the Act, on the basis of which the
AO has passed order has already been quashed being the subsequent order
passed under Section 143(3) of the Act read with 263 of the Act, the whole
proceedings have become void ab initio.
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As such, no substantial questions of law arise from the impugned order of
the Tribunal and the appeal and the connected application (GA/2/2026) are
dismissed.
(RAJARSHI BHARADWAJ, J.)
(UDAY KUMAR, J.)
Sp/