Principal Commissioner Of Incometax-1, Kolkata v. M/S. Manchest Finpro (P) Ltd

ITAT/97/2021IA No.GA/1/2021IA No.GA/2/2021 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOMETAX-1, KOLKATA -Versus- M/S. MANCHEST FINPRO (P) LTD. Appearance:Mr. Vipul Kundalia, Adv.Mr. Anurag Roy, Adv....for the appellant. Mr. Hemant Tiwari, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 30[th] June, 2022. The Court : We have heard Mr. Vipul Kundalia, learned standing counsel assisted by Mr. Anurag Roy, learned advocate forthe appellant and Mr. Hemant Tiwari, learned Advocate for therespondent. There is a delay of 823 days in filing the appeal. We have perused the affidavit filed in support of theapplication for condonation of delay and we find that at everystage there has been delay in finalising the draft memorandum ofappeal and the required application. Admittedly, the order passedby the learned tribunal was received in the department on 20[th]December, 2018. Thereafter the papers travelled from one officerto another and ultimately the appeal was filed on 20[th] July, 2021. Though we are not fully convinced with the reasonsassigned in the application for condonation of delay, but keepingin view that the appeal has been filed under Section 260A of theIncome Tax Act, 1961 (the ‘Act’ in brevity) wherein we arerequired to consider whether any substantial question of lawarises for consideration, we exercise discretion and condone thedelay in filing the appeal. For this reason, the application for condonation of delay(IA No.GA/1/2021) is allowed and the delay in filing the appeal iscondoned. This appeal filed by the revenue under Section 260A ofthe Income Tax Act, is directed against the order dated 31[st]October, 2018 passed by the Income Tax Appellate Tribunal, “A”Bench, Kolkata in ITA No.380/Kol/2017 for the assessment year2012-13. The revenue has raised the following substantialquestions of law for consideration: “(i) Whether the Income Tax Appellate Tribunal erred inlaw in deleting the addition of Rs.7,76,96,000/- made byAssessing Officer under section 68 of the Income Tax Act,1961 to the assessee failed to prove by cogent evidence asto the identity, creditworthiness genuineness of the shareapplicants, further the summons issued to the allegedsubscribers returned ‘un’-served’ which prove theirexistence is in question but the Income Tax AppellateTribunal hold otherwise?(ii)Whether in the facts and circumstances of the case,section 68 of the Income Tax Act, 1961 applicable even ifcheques received by assessee from various creditors werenot presented for collection in bank, still amountmentioned in those cheques were found credited inassessee’s books of accounts?(iii) Whether on the facts and circumstances of the casethe Learned Tribunal was unwarranted in upholding theorder of the Commissioner of Income Tax (Appeal) wherebyrelief of Rs.7,76,96,000/- was granted by Commissioner ofIncome Tax (Appeal) ignoring the fact that Commissioner ofIncome Tax (Appeal) allowed the relief by taking intoconsideration extraneous factors and excluding fromconsideration facts and circumstances relevant to the caseand as such the order of the Learned Tribunal is perversein law as well as facts? (iv)Whether the Learned Tribunal committed substantialerror of law in dismissing the appeal of the Revenue byholding that no infirmity of the order of the Commissionerof Income Tax (Appeal) without giving any cogent reason?” (iv)Whether the Learned Tribunal committed substantialerror of law in dismissing the appeal of the Revenue byholding that no infirmity of the order of the Commissionerof Income Tax (Appeal) without giving any cogent reason?” We have heard Mr. Vipul Kundalia, learned standingcounsel for the appellant and Mr. Hemant Tiwari, learned Advocatefor the respondent.After we have elaborately heard the learned Advocates forthe parties and perused the materials on record, we find that theCommissioner of Income Tax (Appeals)-5, Kolkata [CIT(A)] has donea thorough factual exercise while considering the case of theassessee. More particularly, the CIT(A) had elaborately referredto the reply given by the assessee dated 23/24[th] March, 2015 whichhas been quoted in the order of the CIT(A) dated 30[th] December,2016. We find from the said reply that documents are annexed insupport of each and every plea to prove the genuineness of thetransaction, identities of the parties, etc. More importantly,the assessee pointed out that the investors had not invested themonies during the financial year 2011-12 butthe amount was due tothe two allottee companies. Ultimately, the CIT(A) found that thesaid submission to be true as there was no money received in thefinancial year 2011-12 and the addition could not have been madein the year under consideration.The revenue challenged the said order before the tribunaland after noting the factual position, the tribunal dismissed therevenue’s appeal. The learned tribunal also pointed out that theCIT(A) has referred to the decision of this Court in JatiaInvestment Company vs. CIT reported in (1994) 206 ITR 718 (Cal). Mr. Vipul Kundalia, learned advocate for the appellantsubmitted that there are other subsequent decisions on the saidpoint and the decision in Jatia is distinguishable. In ourconsidered view, such exercise may not be required in the instantcase as we find that, on facts, the tribunal affirmed the viewtaken by the CIT(A). Therefore, we find that no question of lawmuch less substantial question of law arises for consideration inthis appeal. Accordingly, the appeal (ITAT/97/2021) fails and isdismissed. Consequently, the connected application for stay (IANo.GA/2/2021) also stands closed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) S.Das/As.