Abhiruchi Marketing Pvt. Ltd., , Kolkata V. ITO, Ward - 5(3), Kolkata , Kolkata

ITA 1022/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 5064 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-09-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 16-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH TIWARI
• Keywords: Unexplained cash credit
• Section: 68; 263

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO.1022/KOL/2018 ASSESSMENT YEAR :2008-09 ABHIRUCHI MARKETING PVT. LTD. 243/2M,APC ROAD, 2 ND FLOOR, MANICKTALA, NR. SAHITYA PARISHAD, KOLKATA-700 006 [ PAN NO.AAGCA 1408 B ] V/S . INCOME TAX OFFICER WARD-5(3), P-7, CHOWRINGHEE SQUARE, KOLKATA- 700 069 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI MANISH TIWARI, FCA /BY RESPONDENT SHRI SANJAY MUKHERJEE, ADDL. CIT-DR /DATE OF HEARING 09-09-2019 /DATE OF PRONOUNCEMENT 22-11-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 ARISES AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS)-17, KOLKATAS ORDER DATED 11.03.2017 PASSED IN CASE NO.106/CIT(A)- 17/KOL/15-16, INVOLVING PROCEEDINGS U/S 143(3)/263/ 143(3)/147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO.1022/KOL/2018 A.Y. 2008 -09 ABHIRUCHI MARKETING PVT. LTD. VS. ITO WD-5(3) KOL. PAGE 2 2. THE ASSESSEES SOLE SUBSTANTIVE GRIEVANCE PLEADE D IN THE INSTANT APPEAL SEEKS TO REVERSE BOTH THE LOWER AUTHORITIES ACTION TREATING ITS SHARE CAPITAL / PREMIUM THE AMOUNT OF 4,28,70,108/- AS UNEXPLAINED CASH CREDITS LIABLE TO BE ADDED U/S. 68 OF THE ACT. 3. IT TRANSPIRES AT THE OUTSET THAT THE CIT(A) HAS PASSED HIS LOWER APPELLATE ORDER EX PARTE WITHOUT EVEN INDICATING AS TO WHETHER ASSESSEE HAD BEEN ACTUALLY SERVED THE RELEVANT NOTICE(S) OF HEARING OR NOT. THERE IS FURTHER NO DECISION ON MERITS AS WELL AS CONTEMP LATED U/S 250(6) OF THE ACT REQUIRING FRAMING OF POINTS OF DETERMINATION FO LLOWED BY ADEQUATE ADJUDICATION. 4. WE FURTHER NOTICE THAT THE FACTUAL APPOSITION IS NO DIFFERENT IN THE RELEVANT ASSESSMENT ORDER DATED 24.03.2014 AS WELL SAME STOOD PASSED AS PER THE CITS SEC. 263 REVISION DIRECTION DATED 28.03.2013 ANNULLING EARLIER ASSESSMENT / RE-ASSESSMENT DATED 05.05.2010 NOT ADDING THE SHARE CAPITAL / PREMIUM IN ISSUE. THE CITS ORDER F ORMING PART OF ASSESSMENT IN THIS SECOND ROUND MAKES IT CLEAR THAT HE HAD DIRECTED THE ASSESSING OFFICER TO EXAMINE THE GENUINENESS AND SOURCE OF SHARE CAPITAL NOT ON TEST CHECK BASIS BUT IN RESPECT OF E ACH AND EVERY SHAREHOLDER BY CONDUCTING INDEPENDENT ENQUIRY NOT T HROUGH THE ASSESSEE . LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DIS PUTE THAT THE ASSESSING OFFICERS SECOND ROUND ASSESSMENT HAS ADD ED THE IMPUGNED SHARE CAPITAL / PREMIUM WITHOUT CARRYING OUT ANY SU CH INDEPENDENT FACTUAL VERIFICATION. THE FACT ALSO REMAIN THAT THE ASSESSEE FILED ALL NECESSARY EVIDENCES IN ORDER TO PROVE IDENTITY, GEN UINENESS AND CREDITWORTHINESS OF THE INVESTOR PARTY(IES). WE HOL D IN THESE PECULIAR FACTUAL BACKDROP THAT LARGER OF JUSTICE WOULD BE ME T IN CASE THE ASSESSING OFFICER RE-EXAMINE THE ENTIRE OF ISSUE AF RESH WITHIN THREE ITA NO.1022/KOL/2018 A.Y. 2008 -09 ABHIRUCHI MARKETING PVT. LTD. VS. ITO WD-5(3) KOL. PAGE 3 EFFECTIVE OPPORTUNITIES OF HEARING AS PER LAW SUBJE CT TO PAYMENT OF COST AMOUNTING TO 25,000/- SINCE IT HAD NOT PUT IN APPEARANCE THROUGHOUT. THE ASSESSEE SHALL APPEAR BEFORE THE ASSESSING OFFI CER ON OR BEFORE 30.04.2020 ALONGWITH A COPY OF THIS ORDER. 5. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 22/ 11/2019 SD/- SD/- ( %) (' %) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP (- 22 / 11 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ABHAIARUCHI MARKETING PVT. LTD., 243/2M, APC ROAD, 2 ND FLOOR, MANICKTALA, NR. S AHITYA PARISHAD, KOLKATA-006 2. /RESPONDENT-ITO WARD-P-7, CHOWRINGHEE SQUARE, KOLKA TA-69 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 3,