Bhimani Jewels Pvt. Ltd., Kolkata V. ITO, Ward-9(2), Kolkata, Kolkata

ITA 1235/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2784 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 29-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHERJYEE
• Assessee Lawyers: M D SHAH
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.1235/KOL/2017 ASSESSMENT YEAR:2012-13 BHIMANI JEWELS PVT. LTD., C/O D.J. SHAH & CO, KALYAN BHAVAN, 2 ELGIN ROAD, KOLKATA-20 [ PAN NO.AACCB 7630G ] / V/S . INCOME TAX OFFICER, WARD-9(2), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI M.D. SHAH, ADVOCATE /BY RESPONDENT SHRI A. BHATTACHERJYEE, ADDL. CIT-DR /DATE OF HEARING 26-07-2018 /DATE OF PRONOUNCEMENT 29-08-2018 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 CALLS INTO QUESTION CORRECTNESS OF COMMISSIONER OF INCOME TAX (APPEALS) -16, KOLKATAS ORDER DATED 23.03.2017, PASSED IN CASE NO.731/CIT(A)-16/KOL/215 -16/W-9(2) UPHOLDING ASSESSING OFFICERS ACTION IN TREATING ITS SHARE CA PITAL / PREMIUM OF 1,50,00,000/- TO BE UNEXPLAINED CASH CREDIT U/S. 68 IN ASSESSMENT OR DER DATED 30.07.2015, INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961 ; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. BOTH THE LEARNED REPRESENTATIVES ARE AD IDEM AT THE OUTSET IN INFORMING US THAT CIT(A) HAS PASSED HIS LOWER APPELLATE ORDER EX PARTE AFTER NOTING THAT THE ASSESSEE DID NOT APPEAR FOR HEARING FIXED ON 30.11.2016 DURING T HE COURSE OF LOWER APPELLATE PROCEEDINGS. LEARNED COUNSEL SUBMITS THAT THE TAXPA YER HAS FILED ITS AUTHORIZED ITA NO.1235/KOL/2017 A.Y. 2012-13 BHIMANI JEWELS PVT. LTD. VS. ITO WD-9(2 ), KOL PAGE 2 REPRESENTATIVES AFFIDAVIT IN LOWER APPELLATE PROCE EDINGS SOLEMNLY AVERRING THEREIN THAT HE HAD FELL ILL BECAUSE OF HIGH FEVER ON THE S AID DATE. LEARNED DEPARTMENTAL REPRESENTATIVE IS VERY FAIR IN NOT CONTESTING CORRE CTNESS THEREOF. WE THEREFORE OBSERVE THAT ASSESSEES ABSENCE ON THE ABOVE SOLE OPPORTUNI TY OF HEARING GRANTED IN LOWER APPELLATE PROCEEDINGS WAS NEITHER ANY INTENTIONAL N OR DELIBERATE BUT ON ACCOUNT OF ITS COUNSELS ILLNESS. THE FACT ALSO REMAINS THAT CIT(A ) HAS NOWHERE DEALT WITH MERITS OF THE ISSUE WHILST UPHOLDING THE ASSESSING OFFICERS ACTION TREATING THE SHARE CAPITAL / PREMIUM (SUPRA) AS NOT SATISFYING THE THREE FOLDED PARAMETERS OF IDENTITY, GENUINENESS AND CREDITWORTHINESS. WE THEREFORE DEEM IT APPROPRI ATE TO RESTORE THE INSTANT ISSUE BACK TO THE CIT(A) FOR AFRESH DETAILED ADJUDICATION ON MERITS AFTER AFFORDING ADEQUATE OPPORTUNITIES OF HEARING TO THE TAXPAYER. 3. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 29/08/2018 SD/- SD/ - ( !) (#$ !) (P.M.JAGTAP) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS % - 29/08/2018 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-BHIMANI JEWELS PVT. LTD. C/O D.J. SHAH & CO. KALYAN BHAVAN, 2 E LGIN ROAD, KOLAKTA-20 2. /RESPONDENT-ITO WARD-9(2), AAYAKAR BHAWAN, P-7, CHO WRINGHEE SQ.KOL-69 3. ( + / CONCERNED CIT 4. + - / CIT (A) 5. , $$( , ( / DR, ITAT, KOLKATA 6. 0 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO (,