ITO, WD-5(3), KOLKATA, Kolkata V. M/s Brightway Tradelink Pvt. Ltd., Kolkata

ITA 1157/KOL/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4741 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 11-09-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: MIRAJ D. SHAH
• Section: 143(3); 133(6); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI S.S. GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.1157/KOL/2015 ( / ASSESSMENT YEAR: 2012-13) ITO, WARD-5(3), KOLKATA VS. M/S BRIGHTWAY TRADELINK PVT. LTD. 22, STRAND ROAD, 2 ND FLOOR, KOLKATA- 700001. ./ ./PAN/GIR NO.: AADCB 6713 H (ASSESSEE) .. (REVENUE) ASSESSEE BY : DR.P.K. SRIHARI, CIT DR RESPONDENT BY : SHRI MIRAJ D. SHAH, AR / DATE OF HEARING : 05/02/2019 /DATE OF PRONOUNCEMENT : 08/02/2019 / O R D E R PER DR. A. L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE REVENUE , PER TAINING TO ASSESSMENT YEAR 2012-13 IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL)-2, KOLKATA, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT , 1961 (IN SHORT THE ACT) DATED 18.03.2015. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS FOLLOWS: 1. 'THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A)-2, KOLKATA, ERRED IN HOLDING THAT ADDITION OF RS.5,33, 40,000/- ON ACCOUNT OF SHARE M/S BRIGHTWAY TRADELINK PVT. LTD. ITA NO.1157/KOL/2015 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 APPLICATION MONEY AS CASH CREDIT U/S.68 WAS NOT WAR RANTED, IGNORING THE FACT THAT AT THE TIME OF ASSESSMENT BEFORE THE ASSESSING OFFI CER THE ASSESSEE FAILED TO ESTABLISH THE IDENTITY, GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE SHAREHOLDERS, WHICH ARE PRECONDITION TO PROVE THE G ENUINENESS OF ANY AMOUNT CREDITED IN THE BOOKS.' 2. 'THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE, THE CIT(A}-2, KOLKATA, ERRED IN HOLDING THAT ADDITION OF RS.1,13,00,000/- ON ACCOUNT OF UNDISCLOSED INCOME WAS NOT WARRANTED, IGNORING THE FACT THAT AT THE TIME OF ASSESSMENT BEFORE THE ASSESSING OFFICER, THE ASSESSEE FAILED TO PUT F ORWARD ANY REASONABLE AND/OR SATISFACTORY EXPLANATION IN RESPECT OF THE BOGUS EN TRY OF RS.1,13,00,000/- AS SHARE TRANSACTIONS PROVIDED BY M/S. FAVOURITE STEEL TRADE RS PVT. LTD. TO THE ASSESSEE.' 3. THE APPELLANT CRAVES LEAVE TO ADDUCE ADDITION A ND/OR SUPPLEMENTARY GROUND/GROUNDS AND TO AMEND AND/OR ALTER THE GROUND /GROUNDS ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. THE LD. DR AT THE OUTSET ITSELF SUBMITTED BEFORE THE BENCH THAT DURING THE ASSESSMENT PROCEEDINGS THE DIRECTORS OF THE COMPANY WERE NOT EXAMINED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS NOT IS SUED NOTICE TO THE DIRECTORS OF THIS ASSESSEE COMPANY, WHICH ISSUED SHARES AT HUGE PREMIUM THEREFORE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE D IRECTORS OF THE SAID COMPANY HAS NOT BEEN ESTABLISHED. THE LD. COUNSEL FOR THE ASSE SSEE HAS FAIRLY AGREED WITH THE PROPOSITION CANVASSED BY THE LD. DR FOR THE REVENU E THAT DURING THE ASSESSMENT PROCEEDINGS THE DIRECTORS OF THE COMPANY COULD NOT BE EXAMINED IN FURTHER AND TO SECTION 131 / 133(6) PROCESS BY THE ASSESSING OFFIC ER THEREFORE THE ISSUE SHOULD BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER, FOR FRESH ASSESSMENT. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE NOTE THAT DURING THE ASSESSMENT PROCEEDINGS THE IMPORTANT ASPECT TO EXAMINE THE DIRECTORS OF THE COMPANY HAS NOT BEEN CARRIED O UT BY THE ASSESSING OFFICER. SINCE THE COMPANY HAS ISSUED SHARES AT HUGE PREMIUM AND IN THIS SCENARIO IT WAS NECESSARY FOR THE ASSESSING OFFICER TO EXAMINE THE IDENTITY OF THE DIRECTORS OF THE COMPANY, THEREFORE WE THINK IT FIT AND APPROPRIATE TO REMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER, AND HENCE WE SET AS IDE THE ORDER OF LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF ASSESSING OFFI CER FOR DE NOVO ADJUDICATION. M/S BRIGHTWAY TRADELINK PVT. LTD. ITA NO.1157/KOL/2015 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREA TED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 08.02. 2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 08/02/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-5(3), KOLKATA 2. M/S BRIGHTWAY TRADELINK PVT. LTD. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES