Dilip Kumar Agarwal v. Principal Commissioner Of Income Tax, Kolkata-11 & Ors

OD-5 WPO No.1160 of 2021IN THE HIGH COURT AT CALCUTTAConstitutional Writ JurisdictionORIGINAL SIDE DILIP KUMAR AGARWAL Versus PRINCIPAL COMMISSIONER OF INCOME TAX, KOLKATA-11 & ORS. BEFORE: The Hon'ble JUSTICE MD. NIZAMUDDIN Date : 6[th] December, 2021. APPEARANCE:Mr. Rano Jain, Adv.Mr. Venketesh Chaurasia, Adv.Mr. Siddhartha Das, Adv.Ms. Swapna Das, Adv.For petitioner.Mr. Tilak Mitra, Adv.…for respondents. The Court: Heard learned advocates appearing for the parties. In this matter, the petitioner has challenged the impugned orderdated 20[th] March, 2020 passed by the Principal Commissioner of IncomeTax under Section 264 of the Income Tax Act, 1961 who has passed adetailed and reasoned order and after giving an opportunity of hearing tothe writ petitioner, as appears from the writ petition as annexure-P-1. Thepetitioner had filed the revision application under Section 264 of theIncome Tax Act against the assessment order dated 27[th] December, 2017under Section 148 of the Income Tax Act, 1961 raising a demand ofRs.9,77,34,760/- which was an appealable order but the petitioner hadchosen to file revision under Section 264 of the Act. I find from the impugned order under Section 264 of the Act that the aforesaidassessment order and demand in the assessment order has been upheldby the Principal Commissioner of Income Tax by recording the facts indetail in its order and concluding part of the said order is recordedhereunder: “As discussed above, the assessee did not disclosed the depositsin his bank accounts in the original return filed on 08/03/2011 and alsoin the return of income filed on 05/06/2017 in response to the notice u/s148 of the I. T. Act. Further, he has admitted during the proceedings u/s264 that the sales figure of Rs.11,98,565/- declared in his return ofincome are imaginary and not real. In other words, he has concealed thedeposits in five bank accounts. As per the original return of income forthe year under consideration, the assessee is maintaining his books ofaccounts on mercantile basis (please see 1 of Part A – 01 of the return ofincome). In his original return of income filed on 08/03/2011, theassessee has written in the relevant column of return of Income that he isliable to maintain his accounts as per section 44AA of the I.T.Act whereashe has submitted during the proceedings u/s 264 that he is notmaintaining the books of account as stated in Para 9 of the assessee’ssubmissions dated 03/03/2020. The assessee is also not producing anybank statements except the copies provided by the A.O. to him during theassessment proceedings. He has claimed that the said bank accountsare closed, and he has no documents relating to these five bankaccounts. Further, he is not in position to obtain the said bank accountstatements as they are now old. The A.O. had also tried to obtain thebank account statements, but he did not pursue the matter as indicatedin his assessment order. But the facts remain that the above mentioneddeposits in his bank accounts are not in dispute. It appears that theassessee is deliberately not furnishing the details of the so-called buyers,suppliers and supporting documents thereof. The assessee has also notexplained the sources of various deposits in his five bank accounts withsupporting documentary evidences. In the facts and circumstances of the case, I am of the consideredview that the addition of Rs.9,73,66,727/- made by the AO asunexplained cash credit u/s 68 of the Income Tax Act in his assessmentorder appears to be in order. Therefore, I hereby decline to interfere withthe said assessment order of the Assessing Officer.” In the facts and circumstances of the case, I am of the consideredview that the addition of Rs.9,73,66,727/- made by the AO asunexplained cash credit u/s 68 of the Income Tax Act in his assessmentorder appears to be in order. Therefore, I hereby decline to interfere withthe said assessment order of the Assessing Officer.” In view of the detailed reasons recorded in impugned orderconfirming the order of assessment and demand, this Court, sitting inconstitutional writ jurisdiction under Article 226 of the Constitution ofIndia should not substitute its own finding with the finding of theCommissioner under Section 264 of the Act by acting as an appellateauthority over the same, more so, when the impugned order of theCommissioner under Section 264 of the Act is a speaking order and aftergiving an opportunity of hearing and it is not a case of violation ofprinciples of natural justice or the case of inherent lack of jurisdiction onthe part of the authority who has passed such order it will not be properon the part of Writ Court to interfere in such type of cases. In view of the discussion made above, this writ petition beingWPO/1160/2021 is dismissed. (MD. NIZAMUDDIN, J.) sb/