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Calcutta High Court

Principal Commissioner Of Income Tax vs M/S. Rashmi Cement Limited on 8 April, 2022

Author: T.S. Sivagnanam

Bench: T.S. Sivagnanam, Hiranmay Bhattacharyya

OD-3 & 4

                IN THE HIGH COURT AT CALCUTTA
               SPECIAL JURISDICTION (INCOME TAX)
                         ORIGINAL SIDE

                      ITAT/118/2018
                    IA NO: GA/2/2021
PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-1, KOLKATA
                          VERSUS
              M/S. RASHMI CEMENT LIMITED

                      ITAT/118/2018
                    IA NO: GA/1/2021
PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-1, KOLKATA
                          VERSUS
              M/S. RASHMI CEMENT LIMITED


BEFORE :
THE HON'BLE JUSTICE T.S. SIVAGNANAM
         And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 8th April, 2022

                                   Appearance :-

                                   Mr. Soumen Bhattacharjee, Adv.
                                                   ... For Appellant

                                   Mr. Agnibesh Sengupta, Adv.
                                   Mr. Debartha Chakraborty, Adv.
                                                   ... For Respondent

IA No:GA/1/2021 The Court : We have heard Mr. Soumen Bhattacharjee, learned Standing Counsel appearing for the appellant/revenue and Mr. Agnibesh Sengupta, learned Counsel appearing for the respondent/assessee.

There is a delay of 748 days in filing the appeal. The learned Counsel appearing for the respondent/assessee submits that the appellant has not shown any valid reason for not being able to prefer the appeal within the period of limitation. In this regard, an affidavit in opposition has also been filed by the assessee.

We have considered the submissions of the learned Counsel on either side and we have perused the affidavit filed in respect of the condone delay application as well as the affidavit in opposition. Though we find the reasons given by the appellant department are not satisfactory, yet we took into consideration the fact that the substantial questions of law suggested by the revenue in this appeal have been entertained by this Court in another appeal being ITAT 61 of 2020. Only for such reason we are of the view that to meet the ends of justice and to enable the Court to decide the substantial questions of law, discretion has to be exercised in the case on hand. Accordingly, the application is allowed and the delay in filing the appeal is condoned.

ITAT/118/2018 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 February, 2019 passed by the Income Tax Appellate Tribunal, "A" Bench, Kolkata in ITA No.1606/Kol/2017 for the assessment year 2013-14.

We have heard Mr. Soumen Bhattacharjee, learned Standing Counsel appearing for the appellant/revenue and Mr. Agnibesh Sengupta, learned Counsel appearing for the respondent/assessee. The appeal is admitted and will be heard on the following substantial questions of law :-

a) Whether the Learned Income Tax Appellate Tribunal erred in the fact and in law in holding that penalty cannot be levied under section 271AAB even though assessee has admitted undisclosed income under section 132(4) of the Income Tax Act, 1961 during the course of search when section 271AAB expressly provides for levying of such penalty ?

b) Whether the Learned Income Tax Appellate Tribunal erred in the fact and in law in distinguishing the case of PCIT vs. Sandip Chandak (reported in 405 ITR 648) from the facts of the present case where the assessee has admitted income and also has specified the manner of earning of such income being capital employed + profit on sales and commodity trading ?

c) Whether on the facts and circumstances of the case the order of the order of the Learned Tribunal is perverse in law in deleting the penalty under section 271AAB imposed by the Assessing Officer with reference to seized documents and it qualified as undisclosed income under explanation (c) of Section 271AAB of the Income Tax Act 1961 ?

d) Whether the Learned Income Tax Appellate Tribunal on the facts and in the circumstances of the case erred in holding that the income offered by the assessee did not come within the meaning of the undisclosed income ?

Learned Standing Counsel for the department and the learned Counsel appearing for the assessee submitted that informal paper book may not be necessary in these appeals as all relevant materials are available in the stay petition. This submission is placed on record and filing of paper book be dispensed with. Let the appeal be set down for hearing on 13th June, 2022.

The stay application being GA/2/2021 is formally closed.

(T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) SN AR(CR)