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

OD-15 APOT/124/2022IA No.GA/2/2022 IN THE HIGH COURT AT CALCUTTACivil Appellate JurisdictionORIGINAL SIDE DILIP KUMAR AGARWAL -Versus- PRINCIPAL COMMISSIONER OF INCOMETAX, KOLKATA-11 & ORS. Appearance:Mr. Subash Agarwal, Adv....for the appellant.Mr. Tilak Mitra, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE BIVAS PATTANAYAK Date : 27[th] July, 2022. The Court : This intra-Court appeal filed by the writpetitioner is directed against the order dated 6[th] December, 2021in WPO/1160/2021. The said writ petition was filed challengingan order passed by the Principal Commissioner of Income Tax, therespondent herein, under Section 264 of the Income Tax Act, 1961(the ‘Act’ for brevity). The learned Single Bench has noted theoperative portion of the order passed by the PrincipalCommissioner and dismissed the writ petition stating that the writ Court exercising jurisdiction under Article 226 of theConstitution of India, cannot act as an appellate authority overthe order passed by the Commissioner especially when the order isa speaking order and passed after affording opportunity of hearingto the appellant and it is not a case of violation of principlesof natural justice or a case of inherent lack of jurisdiction onthe part of the authority who passed such order. The legalposition has been rightly brought out in the impugned order. It is the endeavour of Mr. Subash Agarwal, learnedAdvocate appearing for the appellant to convince this Court thatthe grounds raised by the appellant in the petition filed underSection 264 of the Act has not been considered by theCommissioner. To test the correctness, we have perused thepetition filed by the appellant before the Commissioner dated 3[rd]March, 2020. Apart from other submissions, it has been statedthat the appellant was not supplied with the DDIT report but, bychance, their authorised representative was able to see the reportand the report suggests as deposits into banks being sales/turn-over. Further, the assessee also referred to the assessment orderin the case of Shri Amit Yadav, proprietor of M/s. 3G Techno, oneof the parties whose name finds place in the DDIT report and theassessing officer has treated the total deposits as sales/turn-over and the net profit rate has been presumed as 0.25% of all thedeposits treating them as sales while the appellant gave the ratio work out to 0.45%. There were other grounds which were alsoraised by the appellant and more particularly that no reasons havebeen assigned by the assessing officer to negate the facts whichwere placed before him. The commissioner, on receipt of theapplication under Section 264, has invited comments from theassessing officer which was furnished by communication dated8.5.2018. After considering the submission made by the appellantand the comments offered by the assessing officer, theCommissioner has taken up the matter for consideration. On going through the order, we find that it is a very detailed order and all the submissions made by the appellant hadbeen taken note of and, thereafter, the Commissioner proceeded toreject the petition by assigning the following reasons:“... In his original return of income filed on08/03/2011, the assessee has written in the relevant columnof return of Income that he is liable to maintain hisaccounts as per section 44AA of the I.T. Act whereas he hassubmitted during the proceedings u/s 264 that he is notmaintaining the books of account as stated in Para 9 of theassessee’s submissions dated 03/03/2020. The assessee is alsonot producing any bank statements except the copies providedby the A.O. to him during the assessment proceedings. He hasclaimed that the said bank accounts are closed, and he has nodocuments relating to these five bank accounts. Further, heis not in position to obtain the said bank account statementsas they are now old. The A.O. had also tried to obtain thebank account statements, but he did not pursue the matter asindicated in his assessment order. But the facts remain that the above mentioned deposits in his bank accounts are not indispute. It appears that the assessee is deliberately notfurnishing the details of the so-called buyers, suppliers andsupporting documents thereof. The assessee has also notexplained the sources of various deposits in his five bankaccounts with supporting documentary evidences.In the facts and circumstances of the case, I am of theconsidered view that the addition of Rs. 9,73,66,727/- madeby the AO as unexplained cash credit u/s 68 of the Income TaxAct in his assessment order appears to be in order.Therefore, I hereby decline to interfere with the saidassessment order of the Assessing Officer.” From the above discussions, it is seen that the assesseedid not produce any bank statement except the copies provided bythe assessing officer. Further, on analysing the facts, thecommissioner opined that the assessee is deliberately notfurnishing details of the so called buyers, suppliers andsupporting documents therein. Furthermore, the appellant has notexplained the series of various deposits in his five bank accountswith supporting documentary evidence.We thus find that the order passed by the Commissioner isa speaking order after taking note of the facts and circumstances,the learned writ Court was right in not interfering with the saidorder. For the above reasons, we are not inclined to interferewith the order passed in the writ petition. Accordingly, theappeal (APOT/124/2022) fails and is dismissed. Consequently, the connected application for stay(GA/2/2022) also stands closed. (T.S. SIVAGNANAM, J.) (BIVAS PATTANAYAK, J.) S.Das/A.SadhukhanAR(CR)