Pinkcity Vinimay Pvt. Ltd., Mumbai V. ITO, Ward - 1(2), Kolkata , Kolkata

ITA 1237/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3059 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 05-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: I JAMIR SR DR
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit; Revision of order
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (D), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S. S. GODARA, JM] I.T.A. NO. 1237/KOL/2018 ASSESSMENT YEAR: 2008-09 PINKCITY VINIMAY PVT. LTD....................................APPELLANT 7 TH CARTER ROAD, NEAR MANGALAM DAIRY, BORIVALI (E), MUMBAI 400 066. [PAN: AAECP 4369 C] ITO, WARD 1(2) KOLKATA....................RESPONDENT KOLKATA. APPEARANCES BY: SHRI MIRAJ D SHAH, AR APPEARING ON BEHALF OF THE ASSESSEE. SHRI I. JAMIR, SR(DR), JCIT, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : FEBRUARY 13, 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 27, 2019 ORDER PER P.M. JAGTAP, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 1, KOLKATA DATED 30.01.2018 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF TRADING OF MISC. ITEMS. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 29.09.2008 DECLARING A TOTAL INCOME OF RS. 580/-. IN THE ASSESSMENT ORIGINALLY COMPLETED U/S 143(3)/147 OF THE ACT VIDE AN ORDER DATED 26.04.2010, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 23,880/-. THE SAID ORDER WAS SUBSEQUENTLY SET ASIDE BY THE CONCERNED CIT VIDE AN ORDER DATED 11.03.2013 PASSED U/S 263 WITH THE DIRECTION TO THE AO TO MAKE THE ASSESSMENT AFRESH AFTER CONDUCTING FRESH ENQUIRIES AND NECESSARY VERIFICATIONS ON THE ISSUE OF SHARE CAPITAL AND SHARE 2 PINKCITY VINIMAY PVT. LTD. I.T.A. NO.1237/KOL/2018 ASSESSMENT YEAR: 2008-09 PREMIUM AGGREGATING TO RS. 5,85,75,000/- RECEIVED BY THE ASSESSEE COMPANY DURING THE YEAR UNDER CONSIDERATION. AS PER THE DIRECTION GIVEN BY THE LD. CIT IN THE ORDER U/S 263, NOTICES WERE ISSUED BY THE AO TO THE ASSESSEE U/S 142(1). THE SAID NOTICES SENT TO THE ADDRESS OF THE ASSESSEE HOWEVER WERE RETURNED BACK BY THE POSTAL AUTHORITY WITH THE REMARK NOT KNOWN. THE AO, THEREFORE, PROCEEDED TO COMPLETE THE ASSESSMENT TO THE BEST OF HIS JUDGEMENT AND IN THE ASSESSMENT SO COMPLETED U/S 144/263 OF THE ACT VIDE AN ORDER DATED 20.03.2014, THE ENTIRE SHARE CAPITAL INCLUDING PREMIUM AMOUNTING TO RS. 5,85,75,000/- WAS ADDED BY HIM TO THE TOTAL INCOME OF THE ASSESSEE BY TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S 68. 3. AGAINST THE ORDER PASSED BY THE AO U/S 144/263, 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 30.01.2018 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE OFFICE OF THE ASSESSEE COMPANY WAS SHIFTED TO MUMBAI AND ALTHOUGH THIS CHANGE IN THE ADDRESS WAS DULY INFORMED BY THE ASSESSEE TO THE AO AS WELL AS TO THE LD. CIT(A), THE NOTICES OF HEARING WERE SENT BY THEM TO THE OLD ADDRESS OF THE ASSESSEE. HE HAS CONTENDED THAT THE NOTICES SENT BY THE AO AS 3 PINKCITY VINIMAY PVT. LTD. I.T.A. NO.1237/KOL/2018 ASSESSMENT YEAR: 2008-09 WELL AS THE LD. CIT(A), THEREFORE, WERE NEVER RECEIVED BY THE ASSESSEE AND THE SAME COULD NOT BE COMPLIED WITH. HE HAS CONTENDED THAT SPECIFIC DIRECTIONS WERE GIVEN BY THE LD. CIT IN THE ORDER PASSED U/S 263 AND SINCE THE FRESH ASSESSMENT WAS MADE BY THE AO WITHOUT COMPLYING WITH THE SAID DIRECTIONS, THE MATTER MAY BE SENT BACK TO THE AO FOR MAKING THE ASSESSMENT AFRESH AS PER THE DIRECTIONS GIVEN BY THE LD. CIT(A) IN THE ORDER U/S 263. WE FIND MERIT IN THIS CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE AND SINCE THE LEARNED DR HAS ALSO NOT RAISED ANY OBJECTION IN SENDING THE MATTER BACK TO THE AO, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND RESTORE THE MATTER TO THE FILE OF THE AO FOR MAKING THE ASSESSMENT AFRESH AS PER THE SPECIFIC DIRECTIONS GIVEN BY THE LD. CIT IN THE ORDER U/S 263. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE AO AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT AFRESH EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH FEBRUARY, 2019. SD/- SD/- (S. S. GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 27/02/2019 BISWAJIT, SR. PS 4 PINKCITY VINIMAY PVT. LTD. I.T.A. NO.1237/KOL/2018 ASSESSMENT YEAR: 2008-09 COPY OF ORDER FORWARDED TO: 1. PINKCITY VINIMAY PVT. LTD., 7 TH CARTER ROAD, NEAR MANGALAM DAIRY, BORIVALI (E), MUMBAI 400 066. 2. ITO, WARD 1(2), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA