Itat/161/2021 Ia No.ga/2/2021 Principal Commissioner Of Income Tax-9, Kolkata v. Dipak Kumar Dey

IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/161/2021IA No.GA/2/2021PRINCIPAL COMMISSIONER OF INCOME TAX-9, KOLKATAVS.DIPAK KUMAR DEY BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAM And THE HON’BLE JUSTICE BIVAS PATTANAYAKDate : 20[th] July, 2022 Appearance :Mr. Soumen Bhattacharyya, Adv…for the appellant. The Court : This appeal by the revenue filed under section 260A of the IncomeTax Act, 1961 [the Act, for brevity] is directed against the order dated 27[th] March, 2019passed by the Income Tax Appellate Tribunal, “C” Bench, Kolkata in ITANo.1452/Kol/2017 relating to assessment year 2010-11. The revenue has raised the following substantial question of law for consideration. i)Whether the learned ITAT has committed substantial error in law byholding that cash payments made by the assessee to M/s. Johal & Co.[Wine Sales] Pvt. Ltd. in violation of section 40A[3] of the Income Tax Act,1961 was covered by the exception provided in Rule 6DD[b] with regard topayment made to Government when receiver of payment is neither aGovernment organization or authorized by the Government to receivepayment on behalf of the Government in cash as such the order of theTribunal is perverse ?holding that cash payments made by the assessee to M/s. Johal & Co.[Wine Sales] Pvt. Ltd. in violation of section 40A[3] of the Income Tax Act,1961 was covered by the exception provided in Rule 6DD[b] with regard topayment made to Government when receiver of payment is neither aGovernment organization or authorized by the Government to receivepayment on behalf of the Government in cash as such the order of theTribunal is perverse ? ii)Whether on the facts and circumstances and law of the case, the order ofthe learned Income Tax Appellate Tribunal is perverse in as much it hasrelied on its earlier order dated 8.9.2017 in ITA No.768/Kol/2015 where ithas given a finding that purchases have been verified and are not in doubtis patently wrong in as much as no such finding was arrived at by the AOin the assessment order ? We have heard learned standing counsel appearing for the appellant.On perusal of the order passed by the learned tribunal we find thatthe tribunal was fully justified in dismissing the appeal filed by the assessee ashaving become infructuous on the ground that the earlier order passed by thePrincipal Commissioner of Income Tax in exercise of its power conferred undersection 263 of the Act was set aside. The present appeal before the tribunal hasarisen out of a second order passed under section 263 of the Act. Therefore, thebasis of the impugned order being no longer in existence, the tribunal was right indismissing the appeal as having become infructuous. We find no question of lawmuch less substantial question of law arising for consideration in this appeal. Accordingly, the appeal fails and the same is dismissed.Accordingly, stay application being GA/2/2021 stands closed. (T.S. SIVAGNANAM, J.) (BIVAS PATTANAYAK, J.)