Calcutta High Court
Principal Commissioner Of Income Tax - 5 vs Nand Kishore Agarwala on 7 July, 2022
Author: T.S. Sivagnanam
Bench: T.S. Sivagnanam
O-49
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION (INCOME TAX)
ORIGINAL SIDE
ITAT/86/2021
IA No.GA/2/2021
PRINCIPAL COMMISSIONER OF INCOME TAX - 5, KOLKATA
Vs
NAND KISHORE AGARWALA
BEFORE :
THE HON'BLE JUSTICE T.S. SIVAGNANAM
And
THE HON'BLE JUSTICE BIVAS PATTANAYAK
Date : 7th July, 2022
Appearance :
Mr. Soumen Bhattacharya, Adv.
...for the appellant.
The Court: This appeal filed by the revenue under Section 260A of the Income
Tax Act, 1961 (the Act, for brevity) is directed against the order dated 28th June, 2019
passed by the Income Tax Appellate Tribunal, "SMC" Bench, Kolkata in ITA
No.1983/Kol/2018 for the assessment year 2014-15.
The revenue has raised the following substantial questions of law for
consideration:
a) Whether the Learned Tribunal has committed substantial error in law by not
admitting that unexplained Long Term Capital Gains (LTCG) comes under
the purview of unexplained cash - credits under Section 68 of the Income
Tax Act, 1961 involving proceeding under Section 143(3) of the Income Tax
Act, 1961 and suspicious transaction in shares cannot be exempted under
Section 10(38) of the Act?
b) Whether the Learned Tribunal has committed substantial error in law in
deleting the addition of undisclosed income ignoring the larger scam of
organized tax evasion by way of bogus capital gain generated in penny
stock?
2
c) Whether the Learned Tribunal has committed substantial error in law in
taken only one lead case and decided to quash the addition of other cases
without going into any specific details of the facts report of the Investigating
Wing, SEBI of the remaining cases which amounts to severe perversity?
d) Whether the Learned Tribunal has committed substantial error in law by not
holding that the Assessee is under a legal obligation to prove the receipt of
share capital/premium to the satisfaction of the Assessing Officer, failure of
which would justify addition of the said amount to the income of the
Assessee?
e) Whether the Learned Tribunal has committed substantial error in law in
deleting the disallowances of Long Term Capital Gain of Rs.12,47,758/-
overlooking that the entire transactions were stage managed with the object
to facilitate the assessee to plough back its unaccounted income in the form
of fictitious Long Term Capital Gain of Rs.12,47,758/- and claim bogus
exemption?''
We have heard Mr. Soumen Bhattacharya, learned standing counsel appearing
for the appellant/revenue. Though the respondent has been served and affidavit of
service has been filed, none appears on behalf of the respondent.
The questions of law raised by the revenue in this appeal were considered in the case of Principal Commissioner of Income Tax-5, Kolkata -versus- Swati Bajaj and Ors. in ITAT No.6 of 2022 passed on June 14, 2022 in batch of cases reported in 2022 SCC Online Cal 1572 wherein the appeals filed by the revenue were allowed. The present appeal filed by the assessee is for the assessment year 2014-15 and there was no other connected appeal of the very same assessee in ITA/1983/Kol/2018 which was subject matter of the batch of cases in Principal Commissioner of Income Tax-5, Kolkata
-versus- Swati Bajaj and Ors., and the appeal filed by the revenue as against ITA/1983/Kol/2018 has been allowed. Therefore, the decision in the case of Principal 3 Commissioner of Income Tax-5, Kolkata (supra) is squarely applied to the facts of the instant case as well.
Accordingly, the appeal is allowed and the substantial questions of law are answered in favour of the revenue.
The application for stay being IA No.GA/2/2021 stands closed.
(T.S. SIVAGNANAM, J.) (BIVAS PATTANAYAK, J.) S.Pal/pkd