Principal Commissioner Of Income Tax - 1, Kolkata v. M/S. Boulevard Services Pvt. Ltd

OD –21 & 22 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE IA NO.GA/1/2021InITAT/70/2021 PRINCIPAL COMMISSIONER OF INCOME TAX - 1, KOLKATAVS. M/S. BOULEVARD SERVICES PVT. LTD. IA NO.GA/2/2021InITAT/70/2021PRINCIPAL COMMISSIONER OF INCOME TAX - 1, KOLKATAVS.M/S. BOULEVARD SERVICES PVT. LTD. BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAMA N DTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : February 14, 2022. [Via Video Conference] Appearance :Mr. S.N. Dutta, Adv.… for the appellant Mr. Pratyush Jhunjhunwala, Adv.Ms. Swapna Das, Adv.… for the respondent The Court : We have heard Mr. S.N. Dutta, learned standingcounsel appearing for the appellant/revenue and Mr. PratyushJhunjhunwala, duly assisted by Ms. Swapna Das, learned counsel forthe respondent/assessee. There is a delay of 816 days in filing the appeal. The respondenthas filed affidavit-in-opposition vehemently opposing the delay. On perusal of the averment set out in the condone delay application, wefind the reasons given are far from satisfactory. However, consideringthe fact that this appeal has been filed under Section 260A of the Act,we suggest the learned counsel to make submissions on merits of thematter and upon their consent, we are inclined to exercise discretionand condone the delay in filing the appeal. Hence, the petition isallowed. ITAT 70 of 2021 This appeal filed by the revenue under Section 260A of theIncome Tax Act, 1961 (the Act for brevity) is directed against the orderdated 24[th] August, 2018 passed by the Income Tax Appellate Tribunal,Bench ‘C’, Kolkata (Tribunal) in ITA No. 1741/Kol/2016,1577/Kol/2017 and 2070/Kol/2016 for the assessment year 2008-09. The revenue has raised the following substantial questions oflaw for consideration : 1.Whether the Learned Income Tax Appellate Tribunal wasjustified in passing the impugned order confirming the orderof CIT(A) whereby the said CIT(A) entertained fresh evidencein violation of Rule 46A, Income Tax Rules 1962 and came toan erroneous decision that furniture, plant and machinerywere acquired and fitted at the assessees premises which ispatently wrong and latently irregular?justified in passing the impugned order confirming the orderof CIT(A) whereby the said CIT(A) entertained fresh evidencein violation of Rule 46A, Income Tax Rules 1962 and came toan erroneous decision that furniture, plant and machinerywere acquired and fitted at the assessees premises which ispatently wrong and latently irregular? 2.Whether the order of the Learned Income Tax AppellateTribunal is at all sustainable in as much as there is acontradiction between the plea before CIT(A) and that of taxaudit report to the extent that the depreciation on additionbetween 1[st] October and 31[st] March 2008 the same could notput to use in September 2007 and as such the Order ofLearned ITAT is perverse?Tribunal is at all sustainable in as much as there is acontradiction between the plea before CIT(A) and that of taxaudit report to the extent that the depreciation on additionbetween 1[st] October and 31[st] March 2008 the same could notput to use in September 2007 and as such the Order ofLearned ITAT is perverse? We have heard Mr. S.N. Dutta, learned standing counselappearing for the appellant/revenue and Mr. Pratyush Jhunjhunwala,duly assisted by Ms. Swapna Das, learned counsel for therespondent/assessee. We have heard Mr. S.N. Dutta, learned standing counselappearing for the appellant/revenue and Mr. Pratyush Jhunjhunwala,duly assisted by Ms. Swapna Das, learned counsel for therespondent/assessee. The first question of law suggested by the revenue is questioningthe order of the CIT(A) as affirmed by the Tribunal on the ground thatthe CIT(A) has entertained fresh evidence in violation of Rule 46A ofthe Income Tax Rules 1962. On a perusal of the order passed by theTribunal we find that such objection was not raised by the revenuewith regard to the claim for depreciation, with regard to furniture,plant and machinery which were acquired and fitted at the assessee’spremises. This is evident from perusal of paragraph 8 of the orderpassed by the Tribunal. That apart on facts, we find that the Tribunalhas examined the factual position which was considered in detail bythe CIT(A) and affirmed the decision of the CIT (A) on facts. Thus, wefind no substantial question of law arising under the said issue. With regard to the second issue, namely, that a contrary pleahas been raised by the assessee before the CIT(A) and that which was found in the tax audit report with regard to the brokerage expenses. Infact on this issue, the revenue raised the contention that the CIT(A)has admitted evidence in violation of Rule 46A of the Rules. Thecorrectness of the submission was tested by the Tribunal and inparagraph 7, has given a factual finding that the CIT(A) has acceptedthe claim of the assessee based on the available record that brokeragein question is only in respect of furniture and fixture let out muchearlier as supported by confirmation from the payees concerned.Therefore, the Tribunal upheld the factual conclusion arrived at by theCIT(A). Therefore, we find no substantial question of law arising forconsideration from this issue as well. In the result, the appeal filed by the revenue fails on the groundthat no substantial question of law arises out for consideration. Consequently, the appeal stands dismissed. Connected stay application also stands dismissed. (T. S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)