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

OD-3 ITAT/241/2017IA NO: GA/1/2017, (Old No.GA/2102/2017)IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOLKATAVERSUS M/S. COMMAND CONSTRUCTIONS PVT. LTD. BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : 21[st] January, 2022. Appearance:- Mr. Smarajit Roy chowdhury, Adv.… For AppellantMr. J.P. Khaitan, Sr. Adv.Ms. Swapna Das, Adv.Mr. Siddharth Das, Adv. … For Respondent The Court : This appeal by the revenue filed under section 260Aof the Income Tax Act, 1961 [the Act, in brevity] is directed against theorder dated 15.3.2017 passed by the Income Tax Appellate Tribunal,“C” Bench, Kolkata [Tribunal] in ITA/2271/Kol/2013 for theassessment year 2008-09. The revenue has raised the followingsubstantial questions of law for our consideration. i. ii. iii. iv. Whether on the facts and in the circumstances of the casethe learned Tribunal was justified in law in confirming thedecision of the CIT[A] by quashing the notice issued underSection 148 of the said Act ? Whether on the facts and in the circumstances of the casethe learned Tribunal was justified in law to delete theaddition of Rs.96,37,85,635/- on account of short termcapital gain which is contrary to the provision of section45(3) of the said Act despite the fact that the capital gainin the instant case arose from the transfer of land to thepartnership firm by way of capital contribution as theasset was converted to the capital asset by thepartnership firm on 31.03.2008 ? Whether on the facts and in the circumstances of the casethe learned Tribunal was justified in law to delete theaddition of Rs.37,03,36,1878/- on account of re-valuationprofit despite the fact that no tax was paid either by theassesses of the partnership firm on the said profit ? Whether on the facts and in the circumstances of the case the learned Tribunal was justified in ignoring the shamarrangement between the group concerns wherein thenomenclature of the impugned asset was intentionallyshown as stock-in-trade and under valued to escape theprovision of Section 45(3) despite the fact it reveals from the audited accounts for the year in question than in theinstant case the assessee taken over by the firm wasnothing but a capital asset ? We have heard Mr. Smarajit Roy Chowdhury, learned seniorstanding counsel for the appellant and Mr. Khaitan, learned seniorcounsel assisted by Ms. Swapna Das and Mr. Siddharth Das, learnedcounsel for the respondent. Identical substantial questions of law wereconsidered by us in ITAT/250/2017, ITAT/239/2017 andITAT/164/2017 and by the common judgment dated 18.1.2022 thoseappeals filed by the revenue have been dismissed on the ground thatno substantial question of law arises for consideration. In the light ofthe said decision, this appeal also needs to be dismissed on the sameline. Accordingly, following the judgment dated 18.1.2022 inITAT/250/2017, the appeal being ITAT/241/2017 stands dismissedon the ground that no substantial question of law arises forconsideration. The application being IA NO: GA/1/2017, (OldNo.GA/2102/2017) also stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)