Ita/258/2009 Commissioner Of Income Tax, Central-I, Kolkata v. Binani Industries Ltd

ORDER IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE O – 19 ITA/258/2009COMMISSIONER OF INCOME TAX, CENTRAL-I, KOLKATAVERSUSBINANI INDUSTRIES LTD. BEFORE : THE HON’BLE JUSTICE SURYA PRAKASH KESARWANIANDTHE HON’BLE JUSTICE RAJARSHI BHARADWAJDate : 1[st] April 2024. Appearance: Ms. Smita Das De, AdvocateMr. Prithu Dudheria, Advocate… for the appellant. Mr. Mihir Naniwadekar, AdvocateMr. Pranit Bag, AdvocateMr. A.K. Dey, Advocate… for the respondent. 1.Heard Smt. Smita Das De, learned senior standing counsel for theappellant and Sri Mihir Naniwadekar, learned counsel for the respondentassessee.appellant and Sri Mihir Naniwadekar, learned counsel for the respondentassessee. 2.This appeal has been admitted on the following substantial question oflaw:-law:- “Whether on the facts and circumstances of the case, the Tribunalwas justified in law to confirm the order of CIT (A) by deleting theaddition of Rs.4 crore holding inter alia that the share capitalreceived from four companies was genuine as the same has beendisclosed in the balance sheet and return of income?” 3.Perusal of the assessment order, the order of the CIT(A) and theimpugned order dated 17.04.2009 passed by the Income Tax AppellateTribunal “A” Bench, Kolkata shows that a sum of Rs.4 crore was investedby some companies in the share capital of the respondent assesseewhich was disbelieved by the assessing officer and treating it asunexplained cash credit, the addition of the said amount was made inthe hands of the assessee under Section 68 of the Income Tax Act, 1961[hereinafter referred to as ‘the Act, 1961’].impugned order dated 17.04.2009 passed by the Income Tax AppellateTribunal “A” Bench, Kolkata shows that a sum of Rs.4 crore was investedby some companies in the share capital of the respondent assesseewhich was disbelieved by the assessing officer and treating it asunexplained cash credit, the addition of the said amount was made inthe hands of the assessee under Section 68 of the Income Tax Act, 1961[hereinafter referred to as ‘the Act, 1961’]. 4.Section 68 of the Act, 1961, as it existed during the assessment year inquestion i.e. AY 1999-2000 is reproduced below:-question i.e. AY 1999-2000 is reproduced below:- 68. Where any sum is found credited in the books of an assesseemaintained for any previous year, and the assessee offers noexplanation about the nature and source thereof or the explanationoffered by him is not, in the opinion of the Assessing Officer,satisfactory, the sum so credited may be charged to income-tax asthe income of the assessee of that previous year.”maintained for any previous year, and the assessee offers noexplanation about the nature and source thereof or the explanationoffered by him is not, in the opinion of the Assessing Officer,satisfactory, the sum so credited may be charged to income-tax asthe income of the assessee of that previous year.” 5.The case set up by the assessing officer so as to invoke Section 68 of theAct, 1961 may be found in paragraph 5 of the assessment order in whichhe set up a case that the amount originated from the assessee companyand after routing through various companies, it was ultimately given asunsecured loan by one M/s. Lexus Holdings & Finance Private Limited tothe assessee, which was subsequently converted into share capital.Thus, the case set up by the assessing officer was that the amountoriginated from the assessee company and it ultimately came in theAct, 1961 may be found in paragraph 5 of the assessment order in whichhe set up a case that the amount originated from the assessee companyand after routing through various companies, it was ultimately given asunsecured loan by one M/s. Lexus Holdings & Finance Private Limited tothe assessee, which was subsequently converted into share capital.Thus, the case set up by the assessing officer was that the amountoriginated from the assessee company and it ultimately came in the hands of the assessee company as share capital. We fail to understandthat even on this imaginary ground taken by the assessing officer, howSection 68 of the Act, 1961 would be attracted. That apart, we find thatthe finding recorded by the ITAT as aforequoted is a finding of fact basedon consideration of relevant evidences on record. Therefore, nointerference can be made. The appeal lacks merit and, therefore,deserves to be dismissed and is hereby dismissed. The substantialquestion of law as framed above is answered accordingly. (SURYA PRAKASH KESARWANI, J.) S. Kumar (RAJARSHI BHARADWAJ, J.)