ORDER SHEET IN HIGH COURT AT CALCUTTA Special Jurisdiction [Income Tax] ORIGINAL SIDE ITAT 142 of 2011 GA 1555 of 2011 GA 1556 of 2011 COMMISSIOENR OF INCOME TAX, KOLKATA-1, KOLKATA Versus M/S. JAINEX METALIKS LIMITED BEFORE: Hon'ble JUSTICE GIRISH CHANDRA GUPTA Hon'ble JUSTICE ARINDAM SINHA Date : 13th May, 2015. For appellant : Mr. M. P. Agarwal, Adv., with Mr. P. Dudhoria, Adv. For Respondent : Mr. S. Bose, Adv. Court : subject matter of challenge in this appeal is judgment and order dated 17th March, 2006 by which learned Tribunal dismissed appeal preferred by revenue pertaining to assessment year 2002-03. It appears that assessing officer, in assessment under Section 143(3) read with Section 147, was of opinion that fact of case indicates that assessee has purchased commission income through book entry with understanding with M/s. Prakash Enterprises and M/s. Jayati Traders in order to eat up unabsorbed 2 business loss without reducing capital. In this premises, commission income shown by assessee as business income is taken as concealed income disclosed in guise of commission income. Accordingly, such commission income is treated as income from other source against which set off of unabsorbed business loss is not allowable. Aggrieved by order of assessing officer, assessee preferred appeal which was allowed by order dated 21st July, 2005 holding, inter alia, that appellant company in course of business rendered services to said two parties and in process earned commission income. non-compliance on part of said 3rd party i.e. M/s. Jindal Udyog to summon notice issued u/s. 131 of I.T. Act will not automatically change nature of income from business to income from other sources. It is duty of ITO/AO to enforce attendance of witness if his evidence is material in exercise of his power u/s. 131(1) as held in Nathuram Premchand vs. CIT reported in 49 ITR 561 (All). appellant has discharged all primary onus as per law by furnishing names and addresses including confirmations from two parties from whom it had received commission. I, therefore, find no valid and sustainable material grounds justifying change of business income as income from other sources. Besides, Finance Act, 2001 had removed restriction of 8 years to carry forward of unabsorbed depreciation w.e.f. assessment year 2002-03. appellant is entitled to get benefit of set off of depreciation and unabsorbed business loss against business income. A.O. is accordingly directed to treat commission income as business income and allow admissible depreciation and unabsorbed business loss as per provisions of I.T. Act and Rules. aggrieved revenue approached learned Tribunal unsuccessfully. learned Tribunal endorsed views of CIT(A), quoted above. revenue is once 3 again in appeal before us. question pressed by Mr. Agarwal, learned advocate for appellant, is whether impugned order is perverse. We have quoted above reasons given by CIT(A) as to why order passed by assessing officer could not be sustained. correctness of those reasons were not assailed before us. On contrary, Mr. Agarwal submitted that view taken by CIT(A) is correct. If view taken by CIT(A) is correct and learned Tribunal has merely endorsed that view, can it be said that order is perverse? question pressed by Mr. Agarwal is answered in negative and against revenue. appeal is, thus, admitted and dismissed. (GIRISH CHANDRA GUPTA, J.) (ARINDAM SINHA, J.) sm Commissioner of Income-tax, Kolkata-1, Kolkata v. M/s Jainex Metaliks Limited