Principal Commissioner Of Incometax Central-5, Kolkata v. Before

ITAT/84/2021IA No.GA/1/2021IA No.GA/2/2021 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOMETAX CENTRAL-5, KOLKATA -Versus- Appearance:Mr. Om Narayan Rai, Adv....for the appellant. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM The Hon’ble JUSTICE HIRANMAY BHATTACHARYYA Date : 12[th] April, 2022. The Court : We have heard Mr. Om Narayan Rai, learnedstanding counsel appearing for the appellant/revenue. There is a delay of 684 days in filing the appeal.Though we find that the explanation is not very satisfactory butin the light of the submission made by the learned counselappearing for the appellant that the respondent/assessee hasavailed the benefit of the Vivad-se-Viswas Scheme, we exercisediscretion and condone the delay in filing the appeal.Accordingly, the application being IA No.GA/1/2021 is allowed. Re: ITAT/84/2021: This appeal filed by the revenue under Section 260A ofthe Income Tax Act, 1961 (the ‘Act’ in brevity) is directedagainst the order dated 15[th] March, 2019 passed by the IncomeTax Appellate Tribunal, “SMC” Bench, Kolkata (the ‘Tribunal’ inshort) ITA No.1878/Kol/2018 for the assessment year 2014-15. The revenue has raised for the following substantial questions of law for consideration: “a) Whether the Income Tax Appellate Tribunal has madesubstantial error by deleting the addition made onaccount of Long Term Capital Gain in one of the pennystock companies Shree Shaleen Textiles Ltd. asunexplained cash credit u/s 68 of the Income Tax Act,1961 ?substantial error by deleting the addition made onaccount of Long Term Capital Gain in one of the pennystock companies Shree Shaleen Textiles Ltd. asunexplained cash credit u/s 68 of the Income Tax Act,1961 ? b) Whether the Income Tax Appellate Tribunal erred indeleting the disallowance of Long Term Capital Gain ofRs.6,28,500/- overlooking the fact that the entiretransactions were stage managed with the object tofacilitate the assessees to plough back its unaccountedincome in the form of fictitious Long Term Capital gainof Rs.6,28,500/- and claim bogus exemption thereby givingrise to the vice of flaw in the decision making process ?deleting the disallowance of Long Term Capital Gain ofRs.6,28,500/- overlooking the fact that the entiretransactions were stage managed with the object tofacilitate the assessees to plough back its unaccountedincome in the form of fictitious Long Term Capital gainof Rs.6,28,500/- and claim bogus exemption thereby givingrise to the vice of flaw in the decision making process ? c) Whether the Income Tax Appellate Tribunal by passing asweeping order in large number of cases where the basicfacts and the facts brought out by the Investigation Wingand the Assessing Officer are different which amounted toperversity and miscarriage of justice particularly whenthe Income Tax Appellate Tribunal being the last factfinding authority was required to go into specifies ofeach and every assessment and corresponding facts whichwere also discussed by the Commissioner of Income Tax(Appeals) ?sweeping order in large number of cases where the basicfacts and the facts brought out by the Investigation Wingand the Assessing Officer are different which amounted toperversity and miscarriage of justice particularly whenthe Income Tax Appellate Tribunal being the last factfinding authority was required to go into specifies ofeach and every assessment and corresponding facts whichwere also discussed by the Commissioner of Income Tax(Appeals) ? We have heard Mr. Om Narayan Rai, learned standingcounsel appearing for the appellant/revenue. We have heard Mr. Om Narayan Rai, learned standingcounsel appearing for the appellant/revenue. Learned counsel for the appellant has produced a copyof a written instruction given by the Assistant Commissioner ofIncome Tax, headquarters-V, Kolkata dated 17[th] December, 2021addressed to the junior Central Government Advocate, Ministry ofLaw & Justice, Department of Legal Affairs, informing him thatthe respondent/assessee has availed the benefit of Vivad-se-Viswas Scheme and deposited the disputed tax arrear ofRs.1,03,405/- on 23[rd] March, 2021. In the light of the above, the appeal (ITAT/84/2021)stands dismissed on the ground that the respondent/assessee hasavailed the benefit of Vivad-se-Viswas Scheme. Consequently,the substantial questions of law are left open. In the result, the connected application for stay IANo.GA/2/2021 also stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) S.Pal/As.