Principal Commissioner Of Income Tax-15, Kolkata v. Bihari Lal Malpani

OD-46 & 47 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income tax)ORIGINAL SIDE IA No.GA 1 of 2020 (Old No.GA 1035 of 2020) In ITAT 29 of 2020 PRINCIPAL COMMISSIONER OF INCOME TAX-15, KOLKATAVsBIHARI LAL MALPANI AND IA No.GA 2 of 2020 (Old No.GA 1037 of 2020) In ITAT 29 of 2020 PRINCIPAL COMMISSIONER OF INCOME TAX-15, KOLKATAVsBIHARI LAL MALPANI BEFORE:The Hon'ble JUSTICE T. S. SIVAGNANAM ANDThe Hon’ble JUSTICE HIRANMAY BHATTACHARYYADate : 17[th] November, 2021. Appearance:Mr.P.K. Bhowmik, Adv.Mr. Asok Bhowmik, Adv.…for the appellant.Mr.Brijesh Kumar Singh, Adv.Mr. Subash Agarwal, Adv.…for the respondent. Re.: IA No.GA 1 of 2020 (Old No.GA 1035 of 2020) The Court : Heard Mr. P.K. Bhowmik, learned Counsel appearing forthe appellant/Revenue and Mr. Subash Agarwal, learned Counsel assistedby Mr. Brijesh Kumar Singh, learned Counsel appearing for therespondent/assessee. We are satisfied with the reasons assigned in the affidavit filed insupport of the petition and, therefore, we are exercising discretion tocondone the delay in filing the appeal. Accordingly, the delay is condoned.The application is allowed. Re.: ITAT 29 of 2020 This appeal of Revenue filed under Section 260A of the Income TaxAct (the ‘Act’ in brevity) is directed against the order dated 5[th] April, 2019passed by the Income Tax Appellate Tribunal, C-Bench, Kolkata (the‘Tribunal’) in ITA No.527/Kol/2017 for the assessment year 2013-14. The Revenue has raised the following substantial questions of law forconsideration : A) Whether the Assessee is entitled to tax exemption u/s 10(38) whenthe records and material indicates that the alleged income shownas Long Term Capital Gain is result of manipulated practice of anorganized tax evasion?the records and material indicates that the alleged income shownas Long Term Capital Gain is result of manipulated practice of anorganized tax evasion? B) Whether the order of the Income Tax Appellate Tribunal waserroneous in law in deleting the addition of Rs.62,49,500/-ignoring the larger scam of tax evasion by way of bogus capital gaingenerated in penny stock?erroneous in law in deleting the addition of Rs.62,49,500/-ignoring the larger scam of tax evasion by way of bogus capital gaingenerated in penny stock? C) Whether the Income Tax Appellate Tribunal was erroneous in lawwhen it failed to give credence to investigations made by theAssessing Officer, Investigation Wing of the Income TaxDepartment as well as SEBI on astronomical rise in prices ofshares of Companies which have no net worth and no financialwhen it failed to give credence to investigations made by theAssessing Officer, Investigation Wing of the Income TaxDepartment as well as SEBI on astronomical rise in prices ofshares of Companies which have no net worth and no financial foundation and thereby failed to apply the test of humanprobability to ascertain the true nature of transactions resulting inbogus Long Term Capital Gains? D) Whether the Income Tax Appellate Tribunal order was erroneous in law in accepting the transactions in purchase/sale of shares asgenuine, merely on the basis of documents supplied by theassessee, without piercing the veil of the manipulative andfraudulent transactions entered by assessee in collusion with acabal of share brokers and entry operators for the purpose of taxevasion? It is submitted by the learned Counsel for the respondent/assesseethat the assessee has availed the benefit of the Vivad Se Vishwas schemeand Form 3 has been issued to the assessee on 11[th] February, 2021. In the light of the said development, there is no necessity for the Courtto decide the questions of law framed in this appeal. Accordingly, the appealstands disposed of and the substantial questions of law are left open. The stay application being IA No.GA 2 of 2020 (Old No.GA 1037 of2020) accordingly stands disposed of. (T. S. SIVAGNANAM, J.) It is submitted by the learned Counsel for the respondent/assesseethat the assessee has availed the benefit of the Vivad Se Vishwas schemeand Form 3 has been issued to the assessee on 11[th] February, 2021. In the light of the said development, there is no necessity for the Courtto decide the questions of law framed in this appeal. Accordingly, the appealstands disposed of and the substantial questions of law are left open. The stay application being IA No.GA 2 of 2020 (Old No.GA 1037 of2020) accordingly stands disposed of. (T. S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)