Principal Commissioner Ofincome Tax-4, Kolkata v. Hitesh Distributors Pvt. Ltd

O-156 ITA/19/2020 IN THE HIGH COURT AT CALCUTTASpecial Jurisdiction (Income Tax)ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME TAX-4, KOLKATA -Versus- HITESH DISTRIBUTORS PVT. LTD. Appearance:Ms. Smita Das De, Adv....for the appellant. Mr. Avratosh Mazumdar, Sr. Adv.Mr. Avra Majumder, Adv....for the respondent. BEFORE: The Hon’ble JUSTICE T.S. SIVAGNANAM -And- The Hon’ble JUSTICE SUPRATIM BHATTACHARYA Date : 26[th] September, 2022. The Court : This appeal filed by the revenue underSection 260A of the Income Tax Act, 1961 (the ‘Act’ forbrevity) is directed against the order dated 13[th] July, 2018passed by the Income Tax Appellate Tribunal, “B” Bench, Kolkata(the Tribunal) in ITA No.1512/Kol/2016 for the assessment year2012-13. The revenue has raised the following substantial question of law for consideration: “Whether on the facts and in the circumstances of thecase, the impugned order of the tribunal dated 13[th] July, 2018is perverse with regard to the factual issues raised inparagraph 5 of the petition”. We have heard Mr. Smita Das De, learned standingcounsel appearing for the appellant/revenue and Mr. AbhratoshMazumdar, learned senior counsel assisted by Mr. Avra Majumdar,learned advocate appearing for the respondent/assessee. The short issue which falls for consideration iswhether the order passed by the learned appellate tribunalsuffers from perversity and on perusal of the order of thelearned tribunal, we find that the learned tribunal found thatthe order of the assessing officer to be perverse and approvedthe order of the Commissioner of Income Tax (Appeals) [CIT(A)]who reverse the order passed by the assessing officer. Thefollowing observation would be germane : “In response to the summon u/s 131 of the Act, theassessee replied that all the requirements were compliedto the notices u/s 133(6) of the Act and that theshareholders are not in the control of the assessee andhence the Assessing Officer may enforce the attendance byexercise of his powers under the Act. Regarding thecompanies which had modified their addresses, the currentaddress was given. As far as the summons u/s. 131 of theAct was concerned, it was submitted that in compliance tothese summons, Mi. Babuial Agarwal appeared before theAssessing Officer. The reply was filed on 26/02/2015. TheAssessing Officer issue a, show cause letter dt. 16/03/2015 to the assessee. The assessee filed a reply on24.03.2015, a copy of which is placed at pages 16 to 18 ofthe paper book. None of these aspects have been mentionedby the Assessing Officer in the assessment order for thereasons best known to him. Despite the assessee filingvoluminous evidences, the Assessing Officer in a perversemanner records that there is not co-operation, whatsoeverfrom the assessee.” From the above factual finding, it is seen that therespondent/assessee had filed reply on 24[th] March, 2015 whichwas placed in the paper book before the learned tribunal andthis reply was on behalf of the respondent to the show causenotice issued by the respondent/assessee dated 16[th] March,2013. The CIT(A) as well as the tribunal found that theassessing officer has not mentioned anything in his assessmentorder for reasons attributable to him. Therefore, the CIT(A)and the tribunal concluded that the view taken by the assessingofficer was utterly perverse. In our considered view, we findthat there is no error in the finding rendered by the tribunalin the said aspect. That apart, the learned tribunal afternoting the facts found that the share applicants are genuinecompanies having substantial assets and income as well asactivities. They are not paper companies or sale companies.Thus, we find there is no perversity in theobservations/findings rendered by the learned tribunal for usto interfere with the order. In the result, the appeal standsdismissed and the substantial question of law is answeredagainst the revenue. (T.S. SIVAGNANAM, J.) (SUPRATIM BHATTACHARYA, J.) S.Das/As.