Ssessment Year 2010-11 v. Sandip Kumar Tekriwal Huf

OD-22 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/90/2021IA No.GA/2/2021PRINCIPAL COMMISSIONER OF INCOME TAX-9, KOLKATAVS. M/s. SANDIP KUMAR TEKRIWAL HUF BEFORE :THE HON’BLE JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE BIVAS PATTANAYAKDate : 13[th] July, 2022 Appearance :Ms. Smita Das De, Adv....for the appellant in item no.23.Mr. Prithu Dudharia, Adv …for the appellant in item no.22.Mr. S. Roy Chowdhury, Adv.…for the appellant in item no.24. Ms. Swapna Das, Mr. Siddhartha Das, Advs.….for respondents. The Court : This appeal by the revenue filed under section 260A of the IncomeTax Act, 1961 [the Act, for brevity] is directed against the common order passed by theIncome Tax Appellate Tribunal, “B” Bench, Kolkata in ITA No.1135/Kol/2018 for theassessment year 2010-11. The revenue has raised the following substantial question of law for consideration.i)Whether on the facts and in the circumstances of the case, the Ld. ITAT isright in law to ignore the fact that purchase are bogus as per the finding ofinvestigation wring of the Department and the assessing authority ?i)Whether on the facts and in the circumstances of the case, the Ld. ITAT isright in law to ignore the fact that purchase are bogus as per the finding ofinvestigation wring of the Department and the assessing authority ? ii)Whether the Learned ITAT was right in law to conclude that revision is badin law contrary to the fact that the assessment was erroneous in so far asprejudicial to the interest of revenue, the assessing officer having failed todisallow bogus purchases fully, but resorted to a certain percentage ?in law contrary to the fact that the assessment was erroneous in so far asprejudicial to the interest of revenue, the assessing officer having failed todisallow bogus purchases fully, but resorted to a certain percentage ? We have heard the learned standing Counsel appearing for the appellants and therespondents. The short question involved in these appeals is whether the PrincipalCommissioner of Income Tax – 10, Kolkata could have exercised his powers undersection 263 of the Act. In our considered view, the tribunal has elaborately examinedthis issue, taken note of the decision of the Hon’ble Supreme Court in Malabar IndustrialCo. Ltd. vs. CIT [2000] 243 ITR 83 and allowed the appeal. Further, the tribunal hasnoted that the assessing officer had made an addition of 2% to the gross profit over andabove the rate of gross profit of 4.63% totalling to 7.63%. It appears that after completingthe assessment the assessing officer addressed the PCIT stating that certain error hasoccurred in the assessment order and requested him to review the order under section263 of the Act. Whether such a procedure adopted by the PCIT was legally sustainablewas examined by the tribunal and in our considered view after taking note of the variousdecisions of the Hon’ble Supreme Court it was rightly pointed out that section 263 of theAct does not permit substituting one opinion for another. That apart, the tribunal hasspecifically recorded a factual finding that the assessee had produced all necessarydetails of the purchase, sales, audited books of accounts, quantity details, etc.. Further,the tribunal found that the assessee’s books of accounts were audited by the CharteredAccountant, the quantity details were given in respect of opening stock, purchase, sales, closing stock, etc. Furthermore, the tribunal pointed out that no discrepancy was foundbetween the purchase shown by the assessee and the sales decline. Thus, on facts, thetribunal concluded that assumption of jurisdiction by the PCIT under section 263 of theAct was erroneous. In our considered view, there is no error in the order passed by thetribunal nor there is any perversity in its approach for us to interfere. We find that thereis no question of law, much less substantial question of law arising in this appeal.Consequently, the appeals are dismissed. Consequently, all the connected applications are dismissed. closing stock, etc. Furthermore, the tribunal pointed out that no discrepancy was foundbetween the purchase shown by the assessee and the sales decline. Thus, on facts, thetribunal concluded that assumption of jurisdiction by the PCIT under section 263 of theAct was erroneous. In our considered view, there is no error in the order passed by thetribunal nor there is any perversity in its approach for us to interfere. We find that thereis no question of law, much less substantial question of law arising in this appeal.Consequently, the appeals are dismissed. Consequently, all the connected applications are dismissed. (T.S. SIVAGNANAM, J.) (BIVAS PATTANAYAK, J.) Pkd/SN.