M/s. Astbhuja Commercial Pvt. Ltd., , Kolkata V. ITO, Ward - 4(3), Kolkata , Kolkata

ITA 1153/KOL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1790 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 28-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C J SINGH SRDR
• Assessee Lawyers: J CHAKRABORTY
• Keywords: Unexplained cash credit; Set aside
• Section: 143(3); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (D), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S.S. VISWANETHRA RAVI, JM] I.T.A. NO. 1153/KOL/2018 ASSESSMENT YEAR: 2013-14 M/S. ASTBHUJA COMMERCIAL PVT. LTD............................................APPELLANT 33/1, N.S. ROAD, MARSHALL HOUSE, 7 TH FLOOR, ROOM NO. 729, KOLKATA 700 001. [PAN: AAKCA 3680 K] ITO, WARD 4(3), KOLKATA........................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI SOUMITRA CHOUDHURY ADVOCATE AND SHRI J. CHAKRABORTY, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI C.J. SINGH SR(DR) APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : NOVEMBER 19, 2018 DATE OF PRONOUNCING THE ORDER : NOVEMBER 19, 2018 ORDER PER P.M. JAGTAP, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 7, KOLKATA DATED 23.01.2018 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 28.02.2014 DECLARING A TOTAL INCOME OF NIL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SUMMONS U/S 131 WERE ISSUED BY THE A.O. TO THE CONCERNED SHAREHOLDERS WHO HAD CONTRIBUTED TO THE SHARE CAPITAL OF THE ASSESSEE COMPANY TO THE TUNE OF RS. 2,08,00,000/- INCLUDING THE SHARE PREMIUM AMOUNT OF RS. 1,91,36,000/-. NONE HOWEVER APPEARED BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE SAID SUMMONS. SOME SUMMONS WERE ALSO RETURNED UNDELIVERED BY THE POSTAL AUTHORITY 2 I.T.A. NO. 1153/KOL/2018 ASSESSMENT YEAR: 2013-14 M/S. ASTBHUJA COMMERCIAL PVT. LTD. WITH THE REMARK INSUFFICIENT ADDRESS, NOT KNOWN ETC. THIS POSITION WAS CONFRONTED BY THE A.O. TO THE ASSESSEE COMPANY GIVING IT AN OPPORTUNITY TO PRODUCE THE CONCERNED SHAREHOLDERS FOR EXAMINATION. THE ASSESSEE HOWEVER FAILED TO AVAIL THIS OPPORTUNITY. THE A.O., THEREFORE, TREATED THE ENTIRE SHARE CAPITAL OF RS. 2,08,00,000/- CLAIMED TO BE RECEIVED BY THE ASSESSEE COMPANY DURING THE YEAR UNDER CONSIDERATION AS UNEXPLAINED CASH CREDITS AND MADE ADDITION TO THAT EXTENT TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 07.03.2016. 3. AGAINST THE ORDER PASSED BY THE A.O. 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 VIDE HIS APPELLATE ORDER DATED 23.01.2018 PASSED EX-PARTE. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ALTHOUGH THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE COMPANY NOW IS IN A POSITION TO EXPLAIN THE RELEVANT CASH CREDITS REPRESENTING SHARE CAPITAL IN TERMS OF SECTION 68 AND HAS SOUGHT ONE OPPORTUNITY BY SENDING THE MATTER BACK TO THE A.O., WE ARE OF THE VIEW THAT SUCH OPPORTUNITY CAN JUSTIFIABLY BE GIVEN TO THE ASSESSEE ONLY SUBJECT TO A PAYMENT OF COST OF RS. 5,000/- KEEPING IN VIEW THE CASUAL AND NEGLIGENT APPROACH OF THE ASSESSEE IN COMPLYING WITH THE NOTICES ISSUED BY THE A.O. AND CIT(A). WE ACCORDINGLY SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) PASSED EX-PARTE AND RESTORE THE MATTER TO THE 3 I.T.A. NO. 1153/KOL/2018 ASSESSMENT YEAR: 2013-14 M/S. ASTBHUJA COMMERCIAL PVT. LTD. FILE OF THE A.O. FOR DECIDING THE SAME AFRESH AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE RELEVANT CASH CREDITS REPRESENTING SHARE CAPITAL IN TERMS OF SECTION 68 BY PRODUCING THE NECESSARY SUPPORTING DOCUMENTARY EVIDENCE SUBJECT TO A PAYMENT OF COST OF RS. 5,000/- TO THE INCOME TAX DEPARTMENT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH NOVEMBER, 2018. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 19/11/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. ASTBHUJA COMMERCIAL PVT. LTD., 33/1, N.S. ROAD, MARSHALL HOUSE, 7 TH FLOOR, ROOM NO. 729, KOLKATA 700 001. 2. ITO, WARD 4(3), P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA