Commissioner Of Income Tax,Kolkata-I, Kolkata v. Sri Kailash Prasad Jain

OD-8 ITA/92/2012 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION (Income Tax)ORIGINAL SIDE COMMISSIONER OF INCOME TAX,KOLKATA-I, KOLKATA -Versus- SRI KAILASH PRASAD JAIN BEFORE : THE HON’BLE JUSTICE SURYA PRAKASH KESARWANIAnd THE HON’BLE JUSTICE RAJARSHI BHARADWAJDate :29[th] April, 2024 Appearance: Mr. Vipul Kundalia, Adv.Mr. Amit Sharma, Adv....for the appellantMr. N. K. Choudhury, Adv.Mr. Nilotpal Choudhury, Adv.Mr. Deepak Sharma, Adv....for the respondent. 1.Heard Sri Vipul Kundalia, learned senior standing counsel for theappellant/department and Sri Choudhury, learned counsel for therespondent/assessee.appellant/department and Sri Choudhury, learned counsel for therespondent/assessee. 2.This appeal was admitted by this Court by order dated 30.07.2012 onthe following substantial questions of law:the following substantial questions of law: i)Whether the Income Tax Appellate Tribunal is justified in deleting theaddition made by the Assessing Officer under Section 68 of theIncome Tax Act, 1961 on the basis of the entry of the seized diaryaddition made by the Assessing Officer under Section 68 of theIncome Tax Act, 1961 on the basis of the entry of the seized diary marked as KP 19 and so the decision of the Tribunal is not based onrecords and documents as such perverse ? ii) Whether the Income Tax Appellate Tribunal erred in not consideringthe direct and corroborative evidence available on record andfindings and non-consideration of those records made the order ofthe Tribunal as perverse ? iii)Whether the decision is patently wrong being contrary to decisionreported in 300 ITR 205 (SC) in as much as the findings are notbased on any evidence and further finding is contrary to evidence ?reported in 300 ITR 205 (SC) in as much as the findings are notbased on any evidence and further finding is contrary to evidence ?iv)Whether the order of the Tribunal is maintainable at all as theTribunal did neither recognize nor relied upon the statement recordedunder Section 132(4) of the Income Tax Act during search asadmissible evidence and as such the order of the Tribunal isperverse ?Tribunal did neither recognize nor relied upon the statement recordedunder Section 132(4) of the Income Tax Act during search asadmissible evidence and as such the order of the Tribunal isperverse ? 3.We have carefully considered the submissions of learned counsel for theparties and perused the paper book.parties and perused the paper book. 4.We find that the Tribunal has dealt in detail with the issues in questionon merit in paragraphs 21 to 33 of the impugned order and has recordedfinding of fact based on consideration of all relevant materials/evidencesavailable on record, concluding as under:on merit in paragraphs 21 to 33 of the impugned order and has recordedfinding of fact based on consideration of all relevant materials/evidencesavailable on record, concluding as under: “33. We are of the view that this entry made by assessee andespecially when they go against the averment of assessee, arean extremely important piece of evidence but it cannot be saidthat these are conclusive. The assessee before us hasdemonstrated that KP-19 is only index for theloan/investments entries recorded in PT-6. All entries ofPT-6 are incorporated in summary manner in KP-19 andall entries were cross verified by the Assessing Officerespecially when they go against the averment of assessee, arean extremely important piece of evidence but it cannot be saidthat these are conclusive. The assessee before us hasdemonstrated that KP-19 is only index for theloan/investments entries recorded in PT-6. All entries ofPT-6 are incorporated in summary manner in KP-19 andall entries were cross verified by the Assessing Officer from PT-6 to KP-19 and found recorded all in PT-6 andthen taken to KP-19, which is only an index. In suchsituation and above discussions on merits, we are of the viewthat this is a stray entry not corroborated by anyevidence because it is not correspondingly recorded inany other seized material. Hence, we reserve the findingsof CIT(A) and the Assessing Officer and this issue onmerits is allowed in favour of the assessee.” 5.We find that the findings recorded by the Tribunal are findings of factbased on consideration of all relevant materials/evidences on record.Therefore, the impugned order of the Tribunal cannot be interfered with.Accordingly, the above noted questions of law are answered in favour ofthe assessee and against the revenue.based on consideration of all relevant materials/evidences on record.Therefore, the impugned order of the Tribunal cannot be interfered with.Accordingly, the above noted questions of law are answered in favour ofthe assessee and against the revenue. 6.The appeal (ITA/92/2012) is dismissed. (SURYA PRAKASH KESARWANI, J.) (RAJARSHI BHARADWAJ, J.)