M/s. Sidhanta Sales Pvt. Ltd., Howrah V. ITO, Wd-15(4), Kolkata, Kolkata

ITA 1110/KOL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4473 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 18-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C J SINGH
• Assessee Lawyers: SHASHI MURARKA
• Keywords: Unexplained cash credit; Set aside
• Section: 143(3); 133(6); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (A), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S. S. VISWANETHRA RAVI, JM] I.T.A. NO. 1110/KOL/2017 ASSESSMENT YEAR: 2012-13 M/S. SIDHANTA SALES PVT. LTD..,....................................................................APPELLANT 45, DOBSON ROAD, GANGOTRI APPARTMENT, 3 RD FLOOR, HOWRAH 711 101. [PAN: AAQCS 9716 E] ITO WARD 15(4), KOLKATA...................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI SHASHI MURARKA, FCA APPEARING ON BEHALF OF THE ASSESSEE. SHRI C.J. SINGH, JCIT, SR.DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MARCH 18, 2019 DATE OF PRONOUNCING THE ORDER : MARCH 18, 2019 ORDER PER P.M. JAGTAP, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 5, KOLKATA DATED 31.01.2017 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY OF 26 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDONATION OF THE SAID DELAY AND KEEPING IN VIEW THE REASONS GIVEN THEREIN, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE DELAY OF 26 DAYS ON THE PART OF THE ASSESSEE IN FILING THIS APPEAL BEFORE THE TRIBUNAL. EVEN THE LEARNED DR HAS NOT RAISED ANY OBJECTION IN THIS REGARD. WE ACCORDINGLY CONDONE THE SAID DELAY AND PROCEED TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERIT. 2 M/S. SIDHANTA SALES PVT. LTD. I.T.A. NO.1110/KOL/2017 ASSESSMENT YEAR: 2012-13 3. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 23.09.2012 DECLARING A LOSS OF RS. 487/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE OF HAVING RECEIVED SHARE APPLICATION MONEY INCLUDING PREMIUM AMOUNTING TO RS. 1,49,70,000/- WAS EXAMINED BY THE AO. DURING THE COURSE OF THE SAID EXAMINATION, HE ISSUED NOTICES U/S 133(6) TO THE FOUR PARTIES FROM WHOM THE SHARE APPLICATION MONEY INCLUDING PREMIUM WAS RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. SOME OF THE SAID NOTICES WERE RETURNED BACK UNSERVED BY THE POSTAL AUTHORITY WHILE THERE WAS NO RESPONSE TO THE OTHER NOTICES. EVEN THE SUMMONS ISSUED BY THE AO U/S 131 REQUIRING THE PERSONAL ATTENDANCE OF THE DIRECTORS OF THE ASSESSEE COMPANY DID NOT INVOKE ANY RESPONSE. THE AO, THEREFORE, TREATED THE ENTIRE AMOUNT OF SHARE APPLICATION MONEY INCLUDING PREMIUM AS UNEXPLAINED CASH CREDITS AND ADDITION OF RS. 1,49,70,000/- WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 25.03.2015. 4. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 31.01.2017 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3 M/S. SIDHANTA SALES PVT. LTD. I.T.A. NO.1110/KOL/2017 ASSESSMENT YEAR: 2012-13 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING BY THE LD. CIT(A) TWICE AND SINCE THE NOTICES OF THE SAID HEARING WERE NOT RECEIVED BY THE ASSESSEE, THE ASSESSEE COULD NOT COMPLY WITH THE SAME. A PERUSAL OF THE RELEVANT PORTION OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) ALSO SHOWS THAT THE NOTICES ISSUED BY HIM FIXING THE APPEAL OF THE ASSESSEE FOR HEARING ON 17.08.2016 AND 08.12.2016 COULD NOT BE SERVED ON THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE HAS ALSO CONTENDED THAT THE ASSESSEE EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS WAS NOT GIVEN SUFFICIENT OPPORTUNITY BY THE AO TO EXPLAIN THE RELEVANT CASH CREDITS REPRESENTING SHARE APPLICATION MONEY INCLUDING PREMIUM IN TERMS OF SECTION 68 BY PRODUCING THE CONCERNED SHAREHOLDERS ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE FOR THE EXAMINATION. HE HAS CONTENDED THAT THE ASSESSEE IS IN A POSITION TO COMPLY WITH THE SAID REQUIREMENT AND URGED THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE BY SENDING THE MATTER BACK TO THE ASSESSING OFFICER. SINCE THE LEARNED DR HAS ALSO NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE AO FOR GIVING SUCH OPPORTUNITY TO THE ASSESSEE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND RESTORE THE MATTER TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH AFTER GIVING THE ASSESSEE ONE MORE OPPORTUNITY TO SUPPORT AND SUBSTANTIATE ITS CLAIM OF RECEIPT OF SHARE APPLICATION MONEY INCLUDING PREMIUM BY PRODUCING THE CONCERNED SHARE APPLICANTS ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE FOR EXAMINATION / VERIFICATION. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US, THE 4 M/S. SIDHANTA SALES PVT. LTD. I.T.A. NO.1110/KOL/2017 ASSESSMENT YEAR: 2012-13 ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE ASSESSING OFFICER AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT AFRESH EXPEDITIOUSLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MARCH, 2019. SD/- SD/- (S. S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 18/03/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. SIDHANTA SALES PVT. LTD., 45, DOBSON ROAD, GANGOTRI APPARTMENT, 3 RD FLOOR, HOWRAH 711 101. 2. ITO, WARD 15(4), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA