Principal Commissioner Ofincome Tax, Central-2, Kolkata v. M/S. Golden Goenka Fincorp Ltd

ITAT/160/2022IA No.GA/2/2022IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE PRINCIPAL COMMISSIONER OFINCOME TAX, CENTRAL-2, KOLKATA -Versus- M/S. GOLDEN GOENKA FINCORP LTD. BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 13[th] January, 2023 Appearance :Mr. Soumen Bhattacharjee, Adv.…for the appellant. Mr. Abhratosh Majumdar, Adv.Mr. Avra Mazumdar,, Adv.Mr. Kausheyo Roy, Adv.Mr.Binayak Gupta, Adv.Mr. Sumon Bhowmick, Adv.Mr. Samrat Das, Adv.…for the respondent. The Court : The Court : This appeal filed by therevenue under Section 260A of the Income Tax Act, (the ‘Act’for brevity) is directed against the order dated 16[th]September, 2020 passed by the Income Tax Appellate Tribunal,“B” Bench, Kolkata (the Tribunal) in IT(SS)A No.1/Kol/2019 and IT(SS)A No.2/Kol/2019 for the assessment years 2013-14 and2015-16. The revenue has raised the following substantial questions of law for consideration: “i)Whether the Learned Tribunal has committedsubstantial error in law by deleting the addition madeunder section 68 of the Income Tax Act, 1961 onaccount of unexplained cash credit?ii)Whether the Learned Tribunal has committedsubstantial error in law by distinguishing thejudgment of the Hon’ble Madras High Court in the caseof B. Kishore Kumar Vs. DCIT reported in (2014) 52taxmann.com 449 (Madras) and judgment of RajasthanHigh Court in the case of M/s. Bannalal JatConstruction Vs. Assistant Commissioner of Income Taxin Income Tax Appeal No.140/2018, judgment dated31.08.2018 on the principles that addition was made onthe basis of admission of the assessee andreliability, importance and sanctity of admission madeduring search could be refuted only be cogent andconvincing evidence?iii)Whether the Learned Tribunal has committedsubstantial error in law by holding that when assesseemakes certain allegations during the search proceedingand denies the content of statement recorded from himunder section 132(4) of the Income Tax Act, 1961, theburden shifts to the revenue to prove that the same isincome? We have heard Mr. Soumen Bhattacharjee, learnedstanding counsel for the appellant/revenue and Mr. AbhratoshMajumdar, learned senior counsel assisted by Mr. Avra Mazumdarand Mr. Kausheyo Roy, learned Advocates for therespondent/assessee. The short issue which falls for consideration iswhether the assessing officer was justified in treating the sumof Rs.25 crores received by the assessee by way of shareapplication money as the assessee’s undisclosed income. Ongoing through the order passed by the Commissioner of IncomeTax (Appeals) [CIT(A)] and the learned Tribunal, we find thatthe assessment was so completed by the assessing officer solelyrelying upon a statement which was recorded from the assesseeon 17[th] March, 2015. It is not disputed that during the courseof search operations, that is, on the last date ofauthorisation on 21[st] April, 2015, the assessee had retractedthe statement given earlier as well as the affidavit filed byhim earlier. That apart, the assessee has also filed anotheraffidavit contending that coercive measures were resorted toand a statement from him was obtained.This retraction was taken note of by the [CIT(A)] andit has been factually recorded that there was very elaborateevidence available before the Assessing Officer to treat thesaid sum as undisclosed income of the assessee. The learned Tribunal on its part re-appreciated the factual position andhas affirmed the order passed by the CIT(A). We find that the entire matter revolves on facts whichhas been appreciated and re-appreciated by the CIT(A) and theTribunal respectively and we find that there is no substantialquestion of law arising for consideration in this appeal. Mr. Soumen Bhattacharjee, learned standing counselappearing for the appellant/revenue placed reliance on thedecision of the High Court of Punjab and Haryana in the case ofGurdev Agro Engineers, Bhawanigarh vs. Gurdev Agro Engineers,Bhawanigarh, 2016 SCC Online P&H 5506. Tribunal on its part re-appreciated the factual position andhas affirmed the order passed by the CIT(A). We find that the entire matter revolves on facts whichhas been appreciated and re-appreciated by the CIT(A) and theTribunal respectively and we find that there is no substantialquestion of law arising for consideration in this appeal. Mr. Soumen Bhattacharjee, learned standing counselappearing for the appellant/revenue placed reliance on thedecision of the High Court of Punjab and Haryana in the case ofGurdev Agro Engineers, Bhawanigarh vs. Gurdev Agro Engineers,Bhawanigarh, 2016 SCC Online P&H 5506. On going through the facts in the said case, we findthat in the said case the CIT(A) affirmed the order passed bythe Assessing Officer after noting that during the course ofsurvey there were several supporting documents to the voluntarystatement made by the assessee therein. Furthermore, in thesaid case the retraction was done after three months and it wasfound that there was no satisfactory explanation for suchdelay. Hence, we find the decision in Gurdev Agro Engineers,Bhawanigarh is clearly distinguishable on facts. Thus, for the above reasons, the appeal (ITAT/160/2022)fails and is dismissed. closed. The application for stay being IA No.GA/2/2022 is (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) A/s./S.Das./SN/S.Pal