Commissioner Of Income Tax, Central – Iii v. M/S. Jodh Singh & Ors. (Huf

IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/26/2010IA NO: GA/1/2010 (OLD NO: GA/865/2010),GA/2/2010 (OLD NO: GA/866/2010) COMMISSIONER OF INCOME TAX, CENTRAL – IIIVS.M/S. JODH SINGH & ORS. (HUF) BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMA N DTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : February 15, 2022. [Via Video Conference] Appearance :Mr. S. N. Dutta, Adv.… for the appellantMr. J.P. Khaitan, Sr. Adv.Ms. Swapna Das, Adv.Mr. Siddharth Das, Adv.… for the respondent The Court : We have heard Mr. S.N. Dutta, learned standingcounsel appearing for the appellant/revenue and Mr. J.P. Khaitan,learned senior counsel, duly assisted by Ms. Swapna Das and Mr.Siddharth Das, learned counsel for the respondent/assessee. There is a delay of 84 days in filing the appeal. We have perusedthe affidavit filed in support of the delay condone application. We findsufficient cause has been shown. Therefore, the delay in filing theappeal is condoned. Accordingly, the application for condonation of delay standsallowed. This appeal by the revenue filed under Section 260A of theIncome Tax Act, 1961 (the Act for brevity) is directed against the orderdated 24[th] July, 2009 passed by the Income Tax Appellate Tribunal,“B” Bench, Kolkata (Tribunal) in ITA No. 219/Kol/2009 and ITA No.119/Kol/2009 for the assessment years 2004-05. The revenue has raised the following substantial questions oflaw for consideration : a.Whether on the facts and in the circumstances of the casethe Learned Tribunal was justified in law in upholding theorder of the C.I.T. (A) Central-III, Kolkata wherein thedisallowance of loss amounting to Rs.1,90,53,909/- onaccount of cattle loss made by the A.O. was deleted, even ifthe conditions laid down in section 36(i) (vi) of the IncomeTax Act, 1961 were not satisfied by the assessee?the Learned Tribunal was justified in law in upholding theorder of the C.I.T. (A) Central-III, Kolkata wherein thedisallowance of loss amounting to Rs.1,90,53,909/- onaccount of cattle loss made by the A.O. was deleted, even ifthe conditions laid down in section 36(i) (vi) of the IncomeTax Act, 1961 were not satisfied by the assessee? b.Whether on the facts and in the circumstance of the case theLearned Tribunal was justified in law in upholding the orderof the C.I.T.(A) Central-III, even when the claim of loss wasnot supported by evidence and charged in P & L A/c, thoughthe net profit was determined at a rate on sale turnover asdirected by the learned Tribunal?Learned Tribunal was justified in law in upholding the orderof the C.I.T.(A) Central-III, even when the claim of loss wasnot supported by evidence and charged in P & L A/c, thoughthe net profit was determined at a rate on sale turnover asdirected by the learned Tribunal? We have heard Mr. S.N. Dutta, learned standing counselappearing for the appellant/revenue and Mr. J.P. Khaitan, learnedsenior counsel, duly assisted by Ms. Swapna Das and Mr. SiddharthDas, learned counsel for the respondent/assessee. It is pointed out by the learned senior counsel appearing for therespondent/assessee that the tax effect in this case is less than Rs.1crore and, therefore, the Circular issued by the CBDT would applyand the appeal cannot be pursued by the department. We have heard Mr. S.N. Dutta, learned standing counselappearing for the appellant/revenue and Mr. J.P. Khaitan, learnedsenior counsel, duly assisted by Ms. Swapna Das and Mr. SiddharthDas, learned counsel for the respondent/assessee. It is pointed out by the learned senior counsel appearing for therespondent/assessee that the tax effect in this case is less than Rs.1crore and, therefore, the Circular issued by the CBDT would applyand the appeal cannot be pursued by the department. In this regard our attention was drawn to the order passed bythe Commissioner of Income Tax (Central) (A) -III [CIT(A)] dated17.11.2008 which shows that the demand raised pursuant to theorder of the assessing officer dated 29.12.2006 is Rs. 97,54,105/-. Inthis regard, the appellant/department has not given any writteninstruction to the learned standing counsel for the revenue. Apartfrom that we have also considered the finding rendered by theTribunal with regard to the addition made by the assessing officer onaccount of loss of sale of cattle. The Tribunal noted that similar ordersin assessee’s own case was considered and such addition was deleted.Thus, following a consistent view, the Tribunal dismissed therevenue’s appeal. Therefore, we find that there is no error in the orderpassed by the Tribunal. Accordingly, the appeal fails and stands dismissed. Substantial questions of law are answered against the revenue.Consequently, connected application also stands dismissed. (T. S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)