M/s. Sonata Commercial Private Limited , Guwahati V. ITO, Ward - 4(1), Kolkata , Kolkata

ITA 1158/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4790 (ITAT-KOLKATA)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 28-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM; SHANKAR HALDE
• Assessee Lawyers: CHIRAG DESAI SHRI MIRAJ D SHAH
• Keywords: Unexplained cash credit; Income from undisclosed sources
• Section: 143(3)

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1158 / KOL / 20 18 ASSESSMENT YEAR :2008-09 M/S SONATA COMMERCIAL PVT. LTD. SAURABH AGARWAL & ASSOCIATES, 3 RD FLOOR, SHANKAR COMPLEX, CHRISTIAN BASTI, G.S. ROAD, GUWAHATI, ASSAM- 781005 [ PAN NO.AAMCS 0281 L ] V/S . INCOME TAX OFFICER, WARD-4(1), AAYKAR BHAWAN, P-7, CHOWRRINGHEE SQUARE, 8 TH FLOOR, KOLKAKTA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI CHIRAG DESAI ON BEHALF OF SHRI MIRAJ D SHAH, ADVOCATE /BY RESPONDENT SHRI RADHEY SHYAM CIT-DR & SHRI SHANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 08-05-2019 /DATE OF PRONOUNCEMENT 17-05-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKATAS O RDER DATED 28.03.2018 PASSED IN CASE NO.529/CIT(A)-7/KOL/WARD-4(1)/16-17, INVOLV ING PROCEEDINGS U/S 143(3) R.W.S. 263 R.W.S147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES SOLE SUBSTANTIVE GROUND RAISED IN THE INSTANT APPEAL CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIE S ACTION TREATING ITS SHARE CAPITAL / PREMIUM AMOUNTING TO 6.47 CRORES AS INCOME FROM UNDISCLOSED SOURCES. T HERE IS NO DISPUTE THAT THE CIT(A) HAS PASSED HIS LOWER APP ELLATE ORDER EX PARTE AGAINST THE ASSESSEE AFTER OBSERVING THAT IT HAD FAILED TO APPE AR DURING THE COURSE OF LOWER ITA NO.1158/KOL/2018 A.Y. 2008-09 M/S SONATA COMMERCIAL PVT. LTD. VS. ITO WD-4(1), KOL. PAGE 2 APPELLATE PROCEEDINGS. LEARNED DEPARTMENTAL REPRESE NTATIVE VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT BOTH THE LOWER AU THORITIES HAVE RIGHTLY ADDED ASSESSEES SHARE CAPITAL AS UNEXPLAINED CASH CREDIT S ON ACCOUNT OF ITS FAILURE IN NOT HAVING PROVED GENUINENESS / CREDITWORTHINESS THEREO F DURING THE COURSE OF ASSESSMENT / FIRST APPELLATE PROCEEDINGS. WE FIND N O MERIT IN REVENUES ARGUMENT IN PRINCIPLE THE FACT REMAINS THAT CIT(A) HAS CHOSEN T O CONFIRM THE IMPUGNED ADDITION BY SIMPLY OBSERVING IN PARA-7 PAGE 5 OF HIS ORDER T HAT THE ASSESSEE COULD NOT PRODUCE ANY MATERIAL TO CONTROVERT THE ASSESSMENT F INDINGS CLEARLY SUGGESTS THAT HE HAS NOT COMPLIED WITH THE RELEVANT STATUTORY PROVIS ION I.E. SEC. 250(6) OF THE ACT REQUIRING FORMULATION OF POINTS OF DETERMINATION FO LLOWED BY A DETAILED ADJUDICATION. COUPLED WITH THIS, WE NOTICE THAT THE CITS SEC. 26 3 REVISION DIRECTION DATED 26.03.2013 HAD MADE IT CLEAR THAT THE ASSESSING OFF ICER WOULD EXAMINE ALL FACTUAL ASPECTS OF THE ISSUE BY HIS INDEPENDENT INQUIRIES T HAN FROM THE ASSESSEE AS WELL. WE DO NOT SEE ANY SUCH INDEPENDENT VERIFICATION IN THE CONSEQUENTIAL ASSESSMENT ORDER GIVING RISE THE INSTANT LIS. WE THEREFORE RESTORE T HE INSTANT APPEAL BACK TO THE ASSESSING OFFICER FOR AFRESH ADJUDICATION IN COMPLI ANCE TO THE CITS ORIGINAL SEC. 263 REVISION DIRECTIONS AS PER LAW AFTER AFFORDING ADEQ UATE OPPORTUNITY OF HEARING TO THE TAXPAYER. 3. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 17/05/2019 SD/- SD/- ( %) (' %) (DR.A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- / 05 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S SONATA COMMERCIAL PVT. LTD., SAURABH AGAR WAL & ASSOCIATES 3 RD FL, SHANKAR COMPLEX, CHRISTIAN BASTI, G.S. ROAD, GUW AHATI-781005 2. /RESPONDENT-ITO WARD-4(1), AAYKAR BHAWA, P-7, CHOWRI NGHEE SQ. 8 TH FLOOR, KOLKATA-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,