Ita/1/2010 Commissioner Of Income Tax, Central-Iii, Kolkata v. M/S.today’s Writing Products Limited

OD–9 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITA/1/2010COMMISSIONER OF INCOME TAX, CENTRAL-III, KOLKATAVS.M/S.TODAY’S WRITING PRODUCTS LIMITED BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 1[st] March, 2023 Appearance :Mr. Prithu Dudhoria, Adv.…for appellant The Court : - The Court : - This appeal filed by the revenue under Section 260Aof the Income Tax Act, 1961 (the Act) is directed against the order dated 21.8.2009passed by the Learned Income Tax Appellate Tribunal “A” Bench, Kolkata in I.T.A. No.1836 (Kol) of 2008 for the Assessment Year 2005-2006. The appeal was admitted on 22.2.2010 on the following substantial questions of law :- i)Whether on the facts and in the circumstances of the case and on a trueconstruction of the ambit and effect of section 80IB of the Income Tax Act,1961 the learned Tribunal erred in law in not appreciating the materialson record, viz. disparity in the profit ratio between unit No. III, which waseligible for 100% deduction and that of unit No. II which was eligible for30% deduction notwithstanding identical turnover andproduction/manufacture of identical goods scrutiny report of theassessing officer in section 10 CCB report, rendering the impugned orderperverse ? ii)Whether on the facts and in the circumstances of the case the learnedTribunal erred in law in placing exclusive reliance on the audited accountsof the assessee which had been rejected by the assessing officer, even though the primary evidence, i.e. the books of accounts had beendestroyed by fire ?” We have heard Mr. Prithu Dudhoria, learned standing Counsel for the appellant.Though the appeal was admitted in February 2010 and Notice of appeal wasdirected to be issued to the respondent/assessee till date the department has not takenany steps to serve the respondent. The issue involved in this appeal is with regard to the deduction allowable underSection 80IB of the Act. There assessing officer estimated the profit solely on theground that the records were not produced by the assessee as they were destroyed in afire accident. The assessee carried the matter on appeal to the Commissioner of IncomeTax, Appeals but allowed the appeal observing that the books of accounts might havebee destroyed but the audit report cannot be rejected and the unit wise net profitdisclosed in the accounting records as certified by the auditors have to be accepted andbefore the learned Tribunal the factual position could not be controverted by therevenue. In paragraph 9 of the impugned order the learned Tribunal has recorded thatthe factual position could not be contradicted by the department and, therefore affirmedthe order passed by the Commissioner of Income Tax, Appeals. In the light of the said factual position we find no ground to interfere with theorder passed by the learned Tribunal. Accordingly, the appeal fails and is dismissed andthe substantial questions of law are answered against the revenue. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)