M/s/ Tabassum Dealers Pvt. Ltd., Kolkata V. ITO, Ward-4(1). Kolkata, Kolkata

ITA 1137/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7602 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 19-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Assessee Lawyers: S M SURANA
• Keywords: Unexplained cash credit
• Section: 143(3); 133(6); 131; 68

Judgement Text

ITA NO. 1137/KOL/2017 A.Y. 2012-2 013 M/S. TABASSUM DEALERS PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 1137/KOL/2017 ASSESSMENT YEAR: 2012-2013 M/S. TABASSUM DEALERS PVT. LIMITED,................ ........................APPELLANT 26/1/1A, STRAND ROAD, 2 ND FLOOR, ROOM NO. 2A, KOLKATA-700 001 [PAN: AABCT 7258 F] -VS.- INCOME TAX OFFICER,................................ .......................................RESPONDENT WARD-13(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI S.M. SURANA, ADVOCATE, FOR THE APPELLANT SHRI RADHEY SHYAM, CIT, D.R , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JANUARY 14, 2019 DATE OF PRONOUNCING THE ORDER : JANUARY 14, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA DAT ED 04.01.2017 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 24.09.2012 DECLARING ITS TOTAL INCOME AT NIL. IN THE ASSESSMEN T COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 12.03.2015, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.45,00,00,000/- AFTER MAKING AN ADDITION UNDER SECTION 68 AMOUNTING TO RS.45,00,00,000/- BY TREATING THE SHARE CAPITAL AND SHARE PREMIUM RECEIVED BY THE ASSESSEE-COMPANY DURING THE YEAR UN DER CONSIDERATION AS UNEXPLAINED CASH CREDIT. ITA NO. 1137/KOL/2017 A.Y. 2012-2 013 M/S. TABASSUM DEALERS PVT. LIMITED 2 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO SATISFACTORY CO MPLIANCE 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(APPEALS) DIS MISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 04.01.2 017 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT PROPER AND SUFFICIENT OPPORTUNITY WA S NOT GIVEN BY THE LD. CIT(APPEALS) TO THE ASSESSEE BEFORE DISMISSING ITS APPEAL BY HIS IMPUGNED ORDER PASSED EX-PARTE. HE HAS SUBMITTED TH AT FULL DETAILS OF SHAREHOLDERS ALONGWITH THEIR PERMANENT ACCOUNT NUMB ERS, COPIES OF APPLICATION FORMS AND OTHER RELEVANT EVIDENCES WERE FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER DURING THE COURSE OF A SSESSMENT PROCEEDINGS. HE HAS ALSO SUBMITTED THAT EVEN THE NOTICES ISSUED BY THE ASSESSING OFFICER UNDER SECTION 133(6) OF THE ACT WERE DULY R ESPONDED BY ALL THE SHARE SUBSCRIBERS BY FILING THE RELEVANT DOCUMENTS REQUIRED BY THE ASSESSING OFFICER. HE HAS CONTENDED THAT THE ASSESS ING OFFICER, HOWEVER, STILL TREATED THE SHARE CAPITAL AND SHARE PREMIUM A MOUNT RECEIVED FROM THE SAID SHARE SUBSCRIBERS AS UNEXPLAINED CASH CRED IT UNDER SECTION 68 FOR THE FAILURE OF THE ASSESSEE TO PRODUCE THE CONC ERNED SHARE SUBSCRIBERS FOR HIS EXAMINATION/VERIFICATION DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HE HAS CONTENDED THAT THE ASSESSEE IS NOW IN A POSITION TO PRODUCE THE SAID SHARE SUBSCRIBERS FOR EXAMINATION/ VERIFICATION BEFORE THE ASSESSING OFFICER AND URGED THAT ONE MORE OPPOR TUNITY MAY BE GIVEN TO THE ASSESSEE BY SENDING THE MATTER BACK TO THE A SSESSING OFFICER. ALTHOUGH THE LD. D.R. HAS CONTENDED THAT THE MATTER SHOULD BE SENT BACK TO THE LD. CIT(APPEALS) KEEPING IN VIEW NON-COMPLIA NCE ON THE PART OF THE ITA NO. 1137/KOL/2017 A.Y. 2012-2 013 M/S. TABASSUM DEALERS PVT. LIMITED 3 ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(APPEALS) RESULTING INTO EX-PARTE ORDER AND NOT TO THE ASSESSING OFFICER AS SOUGHT BY THE LD. COUNSEL FOR THE ASSESS EE, WE FIND THAT THE VOLUMINOUS DOCUMENTARY EVIDENCE FILED BY THE ASSESS EE IN RESPONSE TO NOTICES ISSUED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS UNDER SECTION 131 AS WELL AS BY THE CON CERNED SHAREHOLDERS IN RESPONSE TO NOTICES ISSUED UNDER SECTION 133(6) WAS NOT CONSIDERED AND DEALT WITH BY THE ASSESSING OFFICER IN THE ASSE SSMENT ORDER. EVEN THE JUSTIFICATION OFFERED BY THE ASSESSEE FOR THE SHARE PREMIUM CHARGED BY IT WAS ALSO NOT CONSIDERED AND APPRECIATED BY THE ASSE SSING OFFICER WHILE TREATING THE ENTIRE AMOUNT OF SHARE CAPITAL AND SHA RE PREMIUM AS UNEXPLAINED CASH CREDIT BY PASSING A VERY CRYPTIC A ND NON-SPEAKING ORDER. KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTAN CES OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER OUGHT TO HAV E CONSIDERED THE RELEVANT DOCUMENTARY EVIDENCE PLACED ON RECORD BEFO RE HIM AND SHOULD HAVE GIVEN PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PRODUCE THESE SHAREHOLDERS FOR EXAMINATION. WE ACCORDINGLY SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PA RTE AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DEC IDING THE SAME AFRESH AFTER GIVING THE ASSESSEE ONE MORE OPPORTUNITY TO P RODUCE THE CONCERNED SHAREHOLDERS FOR EXAMINATION/VERIFICATION AND BY PA SSING A WELL REASONED AND WELL DISCUSSED ORDER AFTER CONSIDERING THE ENTI RE DOCUMENTARY EVIDENCE AVAILABLE ON RECORD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 14, 2019. SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER V ICE-PRESIDENT (KZ) KOLKATA, THE 14 TH DAY OF JANUARY, 2019 COPIES TO : (1) M/S. TABASSUM DEALERS PVT. LIMITED, ITA NO. 1137/KOL/2017 A.Y. 2012-2 013 M/S. TABASSUM DEALERS PVT. LIMITED 4 26/1/1A, STRAND ROAD, 2 ND FLOOR, ROOM NO. 2A, KOLKATA-700 001 (2) INCOME TAX OFFICER, WARD-13(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.