Principal Commissioner Ofincome Tax-1, Kolkata v. M/S. Bhutoria Electrical Pvt.ltd

OD - 8 ITAT/54/2021 IA No.GA/2/2021 IN THE HIGH COURT AT CALCUTTA Special Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME TAX-1, KOLKATA -Versus- M/S. BHUTORIA ELECTRICAL PVT.LTD. BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 22[nd] March, 2023 Appearance :Mr. Soumen Bhattacharyya, Adv....for the appellant Mr. Varun Kedia, Adv.Mr. Avee Jaiswal, Adv....for the respondent.. The Court : This appeal at the instance of the revenueunder Section 260A of the Income Tax Act, 1961 (the ‘Act’ forbrevity) is directed against the order dated 12[th] December,2018 passed by the Income Tax Appellate Tribunal, “C” Bench,Kolkata (the Tribunal) in ITA No.2024/Kol/2017 for theassessment year 2012-13. The revenue has raised the following substantial questions of law for consideration: (i)Whether the Income Tax Appellate Tribunalerred in law in reversing the order of theerred in law in reversing the order of the addition of Rs.4,14,80,478/- under Section 68of the Income Tax Act, 1961by the AssessingOfficer and confirmed by Commissioner ofof the Income Tax Act, 1961by the AssessingOfficer and confirmed by Commissioner of Income Tax (Appeal) as the assessee fails todischarge the onus cast upon them to prove thecreditworthiness, identity of the shareapplication and genuineness of transaction bycogent evidence on record as such the order ofIncome Tax appellate Tribunal is bad in lawand perverse ?discharge the onus cast upon them to prove thecreditworthiness, identity of the shareapplication and genuineness of transaction bycogent evidence on record as such the order ofIncome Tax appellate Tribunal is bad in lawand perverse ? (ii)Whether the Income tax appellate Tribunal wasjustified in affirming the transaction inquestion as genuiness and/or sufficientcompliance of the provision of law in as muchas it has erred in law in holding that sincethe transaction was made by A/c payee whichproves the genuineness of transactionabsolutely misinterpreting the provision oflaw that payment by cheque only does not provethe creditworthiness identity and genuinenessof transaction as such the order of Income TaxAppellate Tribunal is not sustainable in law ?justified in affirming the transaction inquestion as genuiness and/or sufficientcompliance of the provision of law in as muchas it has erred in law in holding that sincethe transaction was made by A/c payee whichproves the genuineness of transactionabsolutely misinterpreting the provision oflaw that payment by cheque only does not provethe creditworthiness identity and genuinenessof transaction as such the order of Income TaxAppellate Tribunal is not sustainable in law ? We have heard Mr. Soumen Bhattachartyya, learned standing counsel for the appellant/revenue and Mr. Varun Kediaassisted by Mr. Avee Jaiswal, learned Advocates for therespondent. The learned Advocate for the respondent has filed anaffidavit wherein in paragraph 4 it has been specifically stated that an amount of Rs.1,74,50,000/- pertains to theearlier assessment years and, therefore, if the said amount issubtracted from the total amount of Rs.4,14,80,500/-, the taxeffect in this appeal would be Rs.77,96,696/- which is farbelow the threshold limit fixed by the Central Board of DirectTaxes (CBDT). Mr. Bhattacharyya, learned advocate representing therevenue, upon instruction, submits that he has received writteninstruction from the Assessing Officer, Ward No.7(1), Kolkatadated 21[st] March, 2023 wherefrom it is evident that the revenuehas accepted the stand of the respondent that that the taxinvolved in this appeal is below the threshold limit. Let thewritten instruction filed by Mr. Bhattacharyya be taken onrecord. In view thereof, the revenue cannot pursue this appealany further and the same (ITAT/54/2021) stands dismissed andthe substantial questions of law are left open. Consequently, the connected application for stay (IANo.GA/2/2021) also stands dismissed. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)