Principal Commissioner Of Income Tax-1, Kolkata v. Atlantic Dealers Pvt. Ltd

OD-19 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE ITAT/41/2024 IA NO: GA/2/2024 PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOLKATAVsATLANTIC DEALERS PVT. LTD. BEFORE: THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAnd THE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : 3[rd] May, 2024. Appearance:Mr. Tilak Mitra, Adv.Mr. Prithu Dudhoria, Adv.…for the appellant Mr. Sourav Chunder, Adv.Ms. Mandobi Chowdhury, Adv.…for the respondent The Court: This appeal filed by the Revenue under Section 260A of theIncome Tax Act, 1961 (the Act) against the order dated 8[th] May, 2023 passedby the Income Tax Appellate Tribunal, “A” Bench, Kolkata in I.T.A.No.530/Kol/2020 for the Assessment Year 2009-10. The Revenue has raised the following substantial questions of law forconsideration:- (a)Whether on the facts and in the circumstances of the case, the Hon’bleIncome Tax Appellate Tribunal, Kolkata has erred in granting relief tothe assessee/respondent and set aside the Ld. Commissioner of Income Tax (Appeals)’s order on account of addition on undisclosedcash credit u/s. 68 of Rs. 14,78,00,000/- for the Assessment Year2009-10, though the assessee/respondent has failed to prove thegenuineness of transaction and creditworthiness of the subscribers ? (b)Whether on the facts and in the circumstances of the case, the Hon’bleIncome Tax Appellate Tribunal, Kolkata is justified to set aside theorder of Ld. Commissioner of Income Tax (Appeals) in ignoring the factsthat the creditworthiness of the subscribing companies were notestablished before the Assessing Officer during the course of theassessment proceedings though the onus of proving the identity of thecreditor vests solely with the assessee/respondent?Income Tax Appellate Tribunal, Kolkata is justified to set aside theorder of Ld. Commissioner of Income Tax (Appeals) in ignoring the factsthat the creditworthiness of the subscribing companies were notestablished before the Assessing Officer during the course of theassessment proceedings though the onus of proving the identity of thecreditor vests solely with the assessee/respondent? We have heard Mr. Tilak Mitra, learned counsel along with Mr. PrithuDudhoria, learned standing counsel for the appellant and Mr. Sourav Chunder,learned standing counsel appearing for the respondent. The short question which falls for consideration in the instant case is whether the addition made under Section 68 of the Act was justified. Thelearned Tribunal has done an elaborate examination of the factual matrixwhich ought to have been done by the Commissioner of Income Tax (Appeals)when the appeal was decided. We find from the order passed by the Commissioner of Income Tax(Appeals) dated 28[th] July, 2017 none of the grounds raised by the assessee wasconsidered and it is totally a non-speaking order without application of mind. However, the learned Tribunal has examined the facts produced by theassessee not before the Tribunal for the first time but the facts which werealready placed before the Assessing Officer. The Tribunal noted that theAssessing Officer did not comment upon the veracity or the admissibility of anyof the details or documents produced by the assessee to prove the identity, thecreditworthiness of the share subscribers and the genuineness of thetransaction. It appears that only because the directors failed to respond to thenotices issued, the Assessing Officer drew an adverse inference. This thelearned Tribunal on facts found to be unjustified. Thus, we find that there is noquestion of law much less substantial question of law arising for considerationin this appeal. Accordingly, the appeal fails and is dismissed.Consequently, the application stands closed. (T.S. SIVAGNANAM, CJ.) (HIRANMAY BHATTACHARYYA, J.) bp/R.Bhar