Calcutta High Court
Principal Commissioner Of Income ... vs M/S. Modern Malleables Limited on 22 November, 2021
OD - 18 & 19
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (INCOME TAX)
ORIGINAL SIDE
IA NO: GA/2/2018 (OLD NO: GA/1205/2018)
IN
ITAT/165/2018
PRINCIPAL COMMISSIONER OF INCOME TAX - 5, KOLKATA
VS
M/S. MODERN MALLEABLES LIMITED
IA NO: GA/1/2018 (OLD NO: GA/1204/2018)
IN
ITAT/165/2018
PRINCIPAL COMMISSIONER OF INCOME TAX - 5, KOLKATA
VS
M/S. MODERN MALLEABLES LIMITED
BEFORE :
THE HON'BLE JUSTICE T.S. SIVAGNANAM
AND
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date: November 22, 2021.
Appearance :
Ms. Sucharita Biswas, Advocate
... for the appellant
Mr. Mr. Asim Chowdhury, Advocate,
... for the respondent
The Court : Heard Ms. Sucharita Biswas, learned Counsel
for the appellant and Mr. Chowdhury, learned Counsel for the
respondent/assessee. We are satisfied with the reasons assigned in
the affidavit filed in support of the prayer for condonation of delay.
The delay is condoned. The application for condonation of delay
stands allowed.
This appeal has been filed by the revenue under Section
260A of the Income Tax Act, 1961 (the Act) and is directed against the
order dated 30th August, 2017 passed by Income Tax Appellate
Tribunal "A"Bench, Kolkata in I.T.A. Nos. 908/Kol/2011 and I.T.A.
Nos. 1888/Kol/2016 for the assessment years 1996-1997. The
revenue has raised the following substantial question of law for
consideration :-
a) Whether on the facts and the circumstances of the
case, the Learned Tribunal was justified in law in
allowing deduction of Rs. 1,00,38,000/- on the
ground that even if any addition is required to be
made on account of unexplained purchase under
Section 69C of the Income Tax Act, 1961, the entire
expenditure towards the purchase has to be allowed
as a deduction under Section 37(1) of the Income
Tax Act, 1961 which would neutralise the addition ?
b) Whether on the facts and in the circumstances of
the case, the Learned Tribunal was justified in law
or in fact in cancelling the levy of penalty of
Rs.4,31,93,780/- ignoring the 3 member bench
decision of the Supreme Court in K.P.
Madhusudhana reported in 281 ITR 81 which has
held that mistakes in issuing of notice under
Section 274 of the Income Tax Act, 1961 cannot
vitiate the entire proceedings of levy of Penalty
under Section 271(1)(c) of the Income Tax Act, 1961
and the same view was also held by the Hon'ble
Calcutta High Court in Shyamal Baran Mondal -
Versus - DCIT reported in (2001) 244 CTR 631
which is binding on the Learned Tribunal ?
c) Whether on the facts and in the circumstances of
the case, the Learned Tribunal was justified in law
or in fact in deleting the entire addition of
Rs.1,00,38,000/- under Section 69C of the Income
Tax Act, 1961 on account of unexplained purchase,
when the source of the purchase of the above
amount has neither been explained nor
established?
d) Whether the judgment and order passed by the
Learned Tribunal is totally perverse for not
considering the real issue involved in this case ?
We have heard Ms. Sucharita Biswas, learned counsel for the
appellant and Mr. Chowdhury, learned Counsel for the
respondent/assessee. The respondent/assessee has availed the
benefit of Vivad Se Vishwas Scheme and the appellant/department
has issued Form V declared on 1.11.2021. In the light of the same
nothing is left for adjudication in this appeal and the appeal stands
disposed of in the light of the settlement arrived at. Consequently,
substantial questions of law are left open.
Stay application also stands disposed of.
(T. S. SIVAGNANAM, J.)
(HIRANMAY BHATTACHARYYA, J.)
GH/RS.
