Cit(A) Also Took Note Of The Decision In The Case Of _Cit v. M/S. Ambika Sarees P. Ltd

OD- 1 & 2 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE IA No.GA/2/2018 (Old GA/866/2018) ITAT/110/2018 PRINCIPAL COMMISSIONER OF INCOMETAX, KOLKATA - 4 -Versus-M/S. AMBIKA SAREES P. LTD. IA No.GA/1/2018 (Old GA/865/2018) ITAT/110/2018 PRINCIPAL COMMISSIONER OF INCOMETAX, KOLKATA - 4 -Versus-M/S. AMBIKA SAREES P. LTD. Appearance:Mr. Aryak Dutta, Adv....for the appellant. Mr. S.M. Surana, Adv.,Mr. Bhaskar Sengupta, Adv.,. . . for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 7[th] April, 2022. RE : GA/1/2018 The Court : We have heard Mr. Aryak Dutta, learnedstanding counsel appearing for the appellant/revenue and Mr. S.M.Surana, learned counsel appearing for the respondent/assessee. There is a delay of 189 days in filing the appeal. We aresatisfied with the reasons for not being able to file the appealin time. Hence, the delay in filing the instant appeal is condonedand the application (GA/1/2018) is allowed. RE : ITAT/110/2018 This appeal filed by the revenue under Section 260A ofthe Income Tax Act, 1961 (the ‘Act’ in brevity) is directedagainst the order dated 24[th] May, 2017 passed by the Income TaxAppellate Tribunal, “B” Bench, Kolkata (in short the ‘Tribunal’)in ITA No.1860/Kol/2014 for the assessment year 2011-12. The revenue has raised the following substantialquestions of law for consideration : “I) Whether on the facts and in the circumstances of thecase Ld. Tribunal has erred in law as well as onfacts in deleting addition on account of undervaluation of stock without considering relevantpieces of evidences recorded during survey?case Ld. Tribunal has erred in law as well as onfacts in deleting addition on account of undervaluation of stock without considering relevantpieces of evidences recorded during survey? II)Whether on the facts and in the circumstances of thecase Ld. Tribunal has erred in law as well as onfacts in deleting addition on account of undervaluation of stock without considering admission ofthe Director of the assessee in this regard madetwice in a gap of about one month?III)Whether on the facts and in the circumstances of thecase Ld. Tribunal has erred in law as well as onfacts in overlooking the fact that difference inquantity of sarees found during survey operation could not be reconciled by the assessee before theAssessing Officer?” We have heard Mr. Aryak Dutta, learned standing counselappearing for the appellant/revenue and Mr. S.M. Surana, learnedcounsel appearing for the respondent/assessee.A survey operation under Section 133A of the Act wasconducted in the place of the business of the assessee duringMarch 2011. Pursuant to which, notices were issued and theassessment was completed under Section 143(3) by order dated 21[st]March, 2014. The only issue, which was the subject-mater of theassessment, was under valuation of the product sold by theassessee which was sarees. The assessee preferred an appeal beforethe Commissioner of Income Tax (Appeals) – XII, Kolkata. We findfrom the order passed by the CIT(A) that elaborate submissionswere made and also the documents, affidavits, sale bills etc. wereproduced to show as to how the valuation as adopted by theassessee was correct and justified. The assessee also submittedbefore the CIT(A) that the assessment has been completed on thealleged ground of under valuation of stock solely relying upon astatement which was recorded from the director of the assesseecompany during the course of survey proceedings. The issue as towhether the said statement could have been made the sole basis forrevision of assessment or to conclude that there was undervaluation of the stock elaborately discussed by the CIT(A). The CIT(A) also took note of the decision in the case of CIT Vs.Khader Khan Son (2008) 300 ITR 157 (Mad) which was affirmed by theHon’ble Supreme Court as reported in (2013) 352 ITR 480 (SC)wherein it has been held that the Department should not insist onmaking any disclosure and further such disclosure made in thecourse of survey should not be relied upon and the assessmentshould be based on the papers found and impounded during thecourse of survey. After noting the said decision, the CIT(A) has,in our view, thoroughly examined the factual position includingthe reply given by the assessee to the remand report called forfrom the assessing officer. Ultimately, the appeal was allowed infavour of the assessee by order dated 11[th] July, 2014.Aggrieved by such order, the assessee preferred appealbefore the tribunal. The tribunal on its part re-examined theparticulars and took note of the stand taken by the assesseeduring the assessment proceedings as well as before the CIT(A) andthe factual findings recorded by the CIT(A) and dismissed theappeal filed by the impugned order. Thus, we find that the entireissue is fully factual and the first appellate authority as wellas the tribunal have appreciated and re-appreciated the findingson record and granted relief to the assessee. Thus, we find thatthere is no question of law much less the substantial question oflaw arising for consideration in this appeal. Accordingly, the appeal fails and is hereby dismissed.Consequently, the application for stay (GA/2/2018) stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) S.DasAR