ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(1),KOLKATA, KOLKATA vs. RAGHUPATI CONSULTANTS PRIVATE LIMITED, KOLKATA

In view of above, it is respectfully prayed that the delay occasioned in preferring the appeal may kindly be condoned for the ends of justice. This application is made bonafide and in the interest of justice.” 1.1 Considering the reasons advanced in this application, the delay is hereby condoned and this appeal is admitted for adjudication.

This appeal filed by the Revenue is against the order of the Ld. Commissioner of Income Tax (Appeals), Kolkata-26 [hereinafter referred to as “the Ld. CIT(A)”] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for AY 2011-12, dated 18.03.2024, which has been passed against the assessment order u/s 143(3) read with section 153A of the Act dated 31.12.2018.

The Revenue has raised the following grounds of appeal:

On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in ignoring the statements relied upon by Assessing Officer in assessment order which has not been commented by the Ld. CIT(A) while holding that there is no incriminating material.

On the facts and in the circumstances of the case, the Ld CIT(A) erred in law by failing to appreciate that 'incriminating material is not defined under the Act but practically the incriminating material can be in any form such as evidence in the nature of a statement given on oath u/s 131 or 132(4) particularly on the day of search & survey itself bolstering the substantiation of allegations leading to initiation of search & survey operation in the "Himadri Group" to which the assessee company belonged to 4. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in not considering that the statements given on oath made u/s 131 of the Act clearly establish that the transaction/entries claimed or submitted by the assessee in documents/books of accounts/return of income, being only a device /make belief based on non-existent facts or suppressed/misrepresented facts fulfilling the ingredients of undisclosed income, would constitute an 'incriminating material sufficient for the purpose of making an assessment u/s 153A of the Act.

On the facts and in the circumstances of the case, the Ld. CIT(A) erred in law by not considering the evidentiary value of an admission and the fact that an admission shifts the onus in terms of section 31 of the Evidence Act and the Hon'ble Supreme Court in Kishori Lal v Mt. Chaltibai AIR 1959 SC 504 held, the admissions shifted the onus on to the respondent on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted, the fact admitted must be taken to be established...".

That the revenue reserves its rights to substantiate, modify, delete supplement and/or alter the grounds at any time of the appeal proceedings.”

It is seen, at the outset, that the tax effect on the disputed additions before us is less than Rs. 60 lakhs as prescribed in the CBDT’s latest Circular No. 09/2024 dated 17.09.2024 for filing appeals by the Revenue before this Tribunal.

In view of above stated position, the appeal of the Revenue is dismissed u/s 268A of the Act because of tax effect lower than the prescribed limits as per CBDT Circular No. 09/2024 (supra). The Ld. DR’s contention cannot be accepted as the basis for filing the appeal itself has been found as being non-valid.

In case, at a later stage, it is found that these appeals are indeed covered under ‘exceptions’ then the department would be at liberty to move the ITAT with an MA for appropriate considerations.

In the result, the appeal filed by the Revenue is dismissed.