Durgesh Chandra Sarkar v. Commissioner Of Income Tax,Jalpaiguri & Anr

O-79 ITA/266/2009 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE DURGESH CHANDRA SARKAR -Versus- COMMISSIONER OF INCOME TAX,JALPAIGURI & ANR. BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 13[th ]February, 2023 Appearance :Mr. Ramendra Nath Biswas, Adv.Mr. Avra mazumdar, Adv.Mr. Suman Bhowmick, Adv.Mr. Samrat Das, Adv.…for the appellant.Mr. Amit Sharma, Adv.…for the respondent. The Court : This appeal filed by the assessee underSection 260A of the Income Tax Act, 1961 (the ‘Act’ forbrevity) is directed against the order dated 15[th] May, 2009passed by the Income Tax Appellate Tribunal, “C” Bench, Kolkata(the Tribunal) in ITA No.1655/Kol/2007 for the assessment year2001-02. The appeal was admitted on 3[rd] March, 2010 on thefollowing substantial questions of law: (i)Whether on the facts and in the circumstancesof the case, the Income-tax, AppellateTribunal was right in law in confirming theaddition made towards working capital @ 10% onthe purchase mode for making the underdisclosed sale of Rs.17,18,100/- ?of the case, the Income-tax, AppellateTribunal was right in law in confirming theaddition made towards working capital @ 10% onthe purchase mode for making the underdisclosed sale of Rs.17,18,100/- ? (ii)Whether on the facts and in the circumstancesof the case and on correct and trueinterpretation of the relevant provisions ofthe I.T Act the assessing officer was right inlaw in making the assessment order dated 28[th]December, 2006 by invoking the provisions ofSection 147 read with Section 148 of the I.T.Act on the basis of certain alleged belief,when all the materials for formation of suchbelief were in his possession long before theexpiry of the period if limitation for makinga regular scrutiny assessment under Section143(3) of the I.T. Act ?of the case and on correct and trueinterpretation of the relevant provisions ofthe I.T Act the assessing officer was right inlaw in making the assessment order dated 28[th]December, 2006 by invoking the provisions ofSection 147 read with Section 148 of the I.T.Act on the basis of certain alleged belief,when all the materials for formation of suchbelief were in his possession long before theexpiry of the period if limitation for makinga regular scrutiny assessment under Section143(3) of the I.T. Act ?. We have heard Mr. Ramendra Nath Biswas, learnedcounsel assisted by Mr. Avra Mazumdar, Mr. Suman Bhowmick andMr. Samrat Das, learned Advocates for the appellant and Mr.Amit Sharma, learned standing counsel for therespondent/department. Learned Advocate appearing for the appellant submittedthat the appellant is not pressing substantial question of lawNo.1. The said submission is placed on record and substantialquestion of law No.1 is rejected as not pressed. We have heard Mr. Ramendra Nath Biswas, learnedcounsel assisted by Mr. Avra Mazumdar, Mr. Suman Bhowmick andMr. Samrat Das, learned Advocates for the appellant and Mr.Amit Sharma, learned standing counsel for therespondent/department. Learned Advocate appearing for the appellant submittedthat the appellant is not pressing substantial question of lawNo.1. The said submission is placed on record and substantialquestion of law No.1 is rejected as not pressed. With regard to the substantial question of law no.2,the same deals with the correctness of the reopening of theassessment and issuance of notice dated 21[st] September, 2005under Section 148 of the Act. Admittedly, the appellant didnot seek for reasons for re-opening nor filed any objection tothe re-opening but submitted that the original return of incomefiled on 30[th] October, 2001 may be treated as return of incomepursuant to the notice issued under Section 148 of the Act.Thereafter, the assessing officer proceeded with the assessmentby resorting to the scrutiny procedure. From the order passedby the assessing officer, we find that detailed factual aspectshave been dealt with and the assessment is completed. TheCommissioner of Income Tax (Appeals) tested the correctness ofthe order and granted partial relief to the assessee byreducing the percentage of undisclosed purchases/sales. Theassessee carried the matter on appeal to the learned Tribunalwhich further reduced the addition to 10% towards purchase onthe undisclosed sales.In our considered view, the entire matter is factualand there is no error in the decision making process adopted bythe learned Tribunal or for that matter by the CIT(A).Thus, the appellant has not made out any ground forinterfering with the order passed by the Tribunal.Accordingly, the appeal filed by the assessee (ITA/266/2009) stands dismissed and the substantial question of law no.2 isanswered against the appellant. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s./S.Kumar