Principal Commissioner Of Income Tax Central 1 Kolkata v. M/S Conclave Dealers Pvt Ltd

OD–4 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION ORIGINAL SIDE ITAT/65/2024IA NO: GA/1/2024, GA/2/2024 PRINCIPAL COMMISSIONER OF INCOME TAX CENTRAL 1 KOLKATAVSM/S CONCLAVE DEALERS PVT LTD BEFORE :THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 28 February, 2024. Appearance :Ms. Smita Das De, Adv.Mr. Prithu Dudheria, Adv.…for appellant. The Court :- We have heard Ms. Smita Das De and Mr. Prithu Dudheria,learned counsel for the appellant. The notice sent to the respondent/assesseehas returned with the endorsement ‘door locked’. We find that the assessee did not appear before the tribunal in the appeal filed by the revenue. Therefore, we proceed to take up the matter forconsideration. There is a delay of 23 days in filing the appeal. We have perused theaffidavit filed in support of the condone delay application and we find sufficientcause has been shown for not preferring the appeal within the period oflimitation. Accordingly, the application is allowed and the delay in filing the appeal iscondoned. This appeal filed under section 260A of the Income Tax Act, 1961 isdirected against the order dated 31.7.2023 passed by the Income Tax AppellateTribunal, “A” Bench, Kolkata in ITA/349/Kol/2022 for the assessment year2013-14. The revenue has raised the following substantial question of law forconsideration. “a. Whether on the facts and in the circumstances of the case, the LearnedIncome Tax Appellate Tribunal was justified in law to restrict the additionof Rs.39,03,19,009/- to @12.5% of total turnover Rs.57,58,99,955/- i.e.Rs.7,19,87,495/-, without considering the fact that the assessee hadfailed to discharge his onus, of proving creditworthiness and identities ofthe creditors and genuineness of transactions, with regard to “SundryCreditors”, during the previous year 2012-2013 relevant to AssessmentYear 2013-2014 ?” We have elaborately heard the learned standing counsel for theappellant/revenue. As could be seen from the impugned order the assessee didnot appear before the tribunal to contest the appeal filed by the revenue. Thecorrectness of the order passed by the Commissioner of Income Tax [Appeals],Kolkata dated 29.10.2021 was subject matter of challenge before the tribunal.By the said order the C.I.T. [A] had fixed the gross profit of the assesseecompany at 10% of the total turnover and addition to such extent was affirmed.The learned tribunal on considering the facts and circumstances of the casefound that the view taken by the C.I.T.[A] was too lenient in applying the variousjudicial decisions, held that the gross profit at 12.50% is reasonable andjustified. Accordingly, the order passed by the C.I.T.[A] was modified and theassessing officer was directed to apply the gross profit at 12.50% instead of 5%and the appeal filed by the revenue was partly allowed. We find there is no error in the discretion exercised by the tribunal northere is any perversity for us to interfere with the order passed by the tribunal,more particularly when there is no substantial question of law arises forconsideration. Accordingly, the appeal fails and the same is dismissed. (T.S. SIVAGNANAM)CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.) pkd/GH.