Principal Commissioner Of Income ... vs M/S. Command Constructions Pvt. ...
2022 Latest Caselaw 167 Cal/2

OD-3

                            ITAT/241/2017
               IA NO: GA/1/2017, (Old No.GA/2102/2017)
                   IN THE HIGH COURT AT CALCUTTA
                 SPECIAL JURISDICTION (INCOME TAX)
                            ORIGINAL SIDE


       PRINCIPAL COMMISSIONER OF INCOME TAX-1, KOLKATA
                          VERSUS
             M/S. COMMAND CONSTRUCTIONS PVT. LTD.


BEFORE :

THE HON'BLE JUSTICE T.S. SIVAGNANAM
         And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA

Date : 21st January, 2022.
[VIA VIDEO CONFERENCE]

                                       Appearance:-

                                Mr. Smarajit Roy chowdhury, Adv.
                                                  ... For Appellant
                                Mr. J.P. Khaitan, Sr. Adv.
                                Ms. Swapna Das, Adv.
                                Mr. Siddharth Das, Adv.
                                                  ... For Respondent

The Court : This appeal by the revenue filed under section 260A

of the Income Tax Act, 1961 [the Act, in brevity] is directed against the

order dated 15.3.2017 passed by the Income Tax Appellate Tribunal,

"C" Bench, Kolkata [Tribunal] in ITA/2271/Kol/2013 for the

assessment year 2008-09. The revenue has raised the following

substantial questions of law for our consideration.

i. Whether on the facts and in the circumstances of the case

the learned Tribunal was justified in law in confirming the

decision of the CIT[A] by quashing the notice issued under

Section 148 of the said Act ?

ii. Whether on the facts and in the circumstances of the case

the learned Tribunal was justified in law to delete the

addition of Rs.96,37,85,635/- on account of short term

capital gain which is contrary to the provision of section

45(3) of the said Act despite the fact that the capital gain

in the instant case arose from the transfer of land to the

partnership firm by way of capital contribution as the

asset was converted to the capital asset by the

partnership firm on 31.03.2008 ?

iii. Whether on the facts and in the circumstances of the case

the learned Tribunal was justified in law to delete the

addition of Rs.37,03,36,1878/- on account of re-valuation

profit despite the fact that no tax was paid either by the

assesses of the partnership firm on the said profit ?

iv. Whether on the facts and in the circumstances of the case

the learned Tribunal was justified in ignoring the sham

arrangement between the group concerns wherein the

nomenclature of the impugned asset was intentionally

shown as stock-in-trade and under valued to escape the

provision of Section 45(3) despite the fact it reveals from

the audited accounts for the year in question than in the

instant case the assessee taken over by the firm was

nothing but a capital asset ?

We have heard Mr. Smarajit Roy Chowdhury, learned senior

standing counsel for the appellant and Mr. Khaitan, learned senior

counsel assisted by Ms. Swapna Das and Mr. Siddharth Das, learned

counsel for the respondent. Identical substantial questions of law were

considered by us in ITAT/250/2017, ITAT/239/2017 and

ITAT/164/2017 and by the common judgment dated 18.1.2022 those

appeals filed by the revenue have been dismissed on the ground that

no substantial question of law arises for consideration. In the light of

the said decision, this appeal also needs to be dismissed on the same

line. Accordingly, following the judgment dated 18.1.2022 in

ITAT/250/2017, the appeal being ITAT/241/2017 stands dismissed

on the ground that no substantial question of law arises for

consideration.

The application being IA NO: GA/1/2017, (Old

No.GA/2102/2017) also stands dismissed.

(T.S. SIVAGNANAM, J.)

(HIRANMAY BHATTACHARYYA, J.) pkd/S.Pal AR(CR)