OD-19 ORDER SHEET ITAT 99 OF 2019 GA 1211 OF 2019 IN HIGH COURT AT CALCUTTA Special Jurisdiction (Income Tax) ORIGINAL SIDE PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-1, KOLKATA Versus M/S. RASHMI INFRASTRUCTURE PVT. LTD. BEFORE: Hon'ble JUSTICE I. P. MUKERJI Hon'ble JUSTICE PROTIK PRAKASH BANERJEE Date : 24th February, 2020. For Appellant : Mr. S. Bhattacharya, Adv. For Respondent : Mr. Agnibesh Sengupta, Adv. Mr. S. Das, Adv. Ms. P. Basu, Adv. Court : This is appeal under Section 260A of Income Tax Act, 1961 against order of tribunal dated 5th December, 2018. We have much appreciated conviction with which learned counsel for revenue has tried to impress us that we should admit this appeal. question is whether assessee had unexplained cash credit in their books which could be charged to income tax in previous year in question ? We find on scrutiny of paragraphs 10 and 10.2 of order of tribunal that questions of fact and evidence were discussed and adjudicated upon by it. We set out paragraphs 10 and 10.2 of impugned order of tribunal is as follows : 10. Coming to alleged cash trail, none of material gathered by Assessing Officer by way of bank account copies of various companies supposed to be part of chain of companies was not confronted to assessee. alleged statements that were recorded from directors of these companies which formed this alleged chain were also not brought on record. Only general statement has been made. There is no evidence whatsoever that cash has been routed from assessee company to any of these chain of companies. There is no evidence that any cash was deposited by assessee company. Moreover, there is no material whatsoever brought on record to demonstrate that alleged cash deposit made in bank account of third party was from assessee company. No opportunity to cross- 2 examine any these parties was provided to assessee. bank statements based on which cash trail was prepared are part of disclosed documents and cannot be held as incriminating material. 10.2. Thus, none of these material gathered by Assessing Officer can be catergoized as incriminating material found during course of search or found during course of any other operation under Act. Thus, we hold that additions in question are not based on any incriminating material. ld. CIT(A) on page 38 of his order held as follows: I have considered findings of AO in assessment order, different case laws was brought on record and appeal orders passed by my predecessors on this legal issue. I find from assessment order that during search & seizure operations conducted u/s 132 of IT Act, 1961, incriminating documents/papers were not seized. At least addition made by AO in assessment order passed u/s 153A/143(3) are not based of any incriminating documents/papers seized during search operation. It would also not to be out of context to mention here that in this case, on date of search, no assessment for this year was pending. Therefore, keeping in view ratio decided by jurisdictional bench of Kolkata tribunal in case referred above and ratio decided by Hon ble Calcutta High Court in case of Veer Prabhu Marketing Ltd(Supra) in light of CBDT s decision of not filing SLP in this case in Supreme Court and keeping in view Apex Court s decision to dismiss SLP on similar issue in case of Pr CIT vs Kurele Paper Mills Pvt. Ltd: SLP (C) No. 34554 of 2015 dt. 07.12.2015, I am of this view that in order to maintain judicial continuity on this issue and respectfully following ratio decided by Hon ble Calcutta High Court in case of Veer Prabhu Marketing Ltd (Supra), assessee s appeal on ground no 1 is allowed and as such I am not inclined to adjudicate appeal on ground no. 2 on merit. tribunal is final fact finding authority. plausible adjudication on facts has been made. We cannot reopen facts any more in this jurisdiction. No questions of law far less any substantial question of law is involved. For those reasons, appeal (ITAT No.99 of 2019) and connected application (GA No.1211 of 2019) are dismissed. (I. P. MUKERJI, J.) (PROTIK PRAKASH BANERJEE, J.) A.Dey Principal Commissioner of Income-tax, Central-1, Kolkata v. Rashmi Infrastructure Pvt. Ltd