Scroll Vinimay Pvt. Ltd., , Mumbai V. ITO, Ward - 1(3), Kolkata , Kolkata

ITA 1238/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3057 (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: C
• 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
• Section: 142(1); 68; 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. 1238/KOL/2018 ASSESSMENT YEAR: 2008-09 SCROLL VINIMAY PVT. LTD...................................APPELLANT C/O. LAXMAN M SAWANT, 7/610, SAI SUNDAR NAGAR, NEAR BHUSA INDUSTRIAL SADANAND HASU TANDAL MARG, PRABHADEVI, MUMBAI 400 025. [PAN: AALCS 3348 B] ITO, WARD 1(3) KOLKATA........................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. 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) 19, KOLKATA DATED 28.02.2018 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 IN SHARES AND INVESTMENT. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 30.09.2008 DECLARING A TOTAL INCOME OF RS. 470/-. IN THE ASSESSMENT ORIGINALLY COMPLETED U/S 143(3)/147 OF THE ACT VIDE AN ORDER DATED 09.04.2010, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 13,420/-. THE RECORD OF THE SAID ASSESSMENT CAME TO BE EXAMINED BY THE CONCERNED CIT AND ON SUCH EXAMINATION, HE FOUND THE ORDER PASSED BY THE AO U/S 143(3)/147 AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. ACCORDINGLY, THE SAID ORDER WAS SET ASIDE BY 2 SCROLL VINIMAY PVT. LTD. I.T.A. NO.1238/KOL/2018 ASSESSMENT YEAR: 2008-09 THE LD. CIT VIDE HIS ORDER DATED 11.03.2013 PASSED U/S 263 WITH THE DIRECTION TO THE AO TO PASS THE ASSESSMENT AFRESH AFTER MAKING INDEPENDENT, DETAILED AND COMPLETE ENQUIRIES INTO SUBSCRIPTION TO THE SHARE CAPITAL AND SHARE PREMIUM TO THE EXTENT OF RS. 90/- PER SHARE. THE AO WAS ALSO DIRECTED BY THE LD. CIT TO PASS A SPEAKING ORDER AFTER PROVIDING A REASONABLE OPPORTUNITY TO THE ASSESSEE AND VERIFY THE SOURCE OF SHARE CAPITAL INCLUDING THE SHARE PREMIUM OF ALL THE SUBSCRIBERS AND ROTATION OF MONEY THROUGH VARIOUS HANDS SO AS TO ASCERTAIN THE TRUE NATURE OF THE TRANSACTION WHICH WILL BRING TO THE FORE, THE REALITY OF THE TRANSACTIONS. 3. AS PER THE ORDER OF THE LD. CIT PASSED U/S 263, NOTICES U/S 142(1) WERE ISSUED BY THE AO TO THE ASSESSEE. THE SAME HOWEVER REMAINED UNCOMPLIED WITH. EVEN THE SUMMONS ISSUED BY THE AO TO THE DIRECTOR OF THE ASSESSEE COMPANY DID NOT INVOKE ANY POSITIVE RESPONSE. 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 25.03.2014, THE ENTIRE SHARE CAPITAL AND SHARE PREMIUM AMOUNT AGGREGATING TO RS. 5,21,25,000/- WAS ADDED BY HIM TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 BY TREATING THE SAME AS UNEXPLAINED CASH CREDIT. HE ALSO MADE A FURTHER ADDITION OF RS. 2,000/- ON ACCOUNT OF DISALLOWANCE U/S 14A. 4. 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 SATISFACTORY COMPLIANCE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE 3 SCROLL VINIMAY PVT. LTD. I.T.A. NO.1238/KOL/2018 ASSESSMENT YEAR: 2008-09 APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 28.02.2018 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 5. 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 THE NOTICES ISSUED BY THE LD. CIT(A) FIXING THE APPEAL OF THE ASSESSEE FOR HEARING WERE NEVER RECEIVED BY THE ASSESSEE AND THE ASSESSEE, THEREFORE, COULD NOT COMPLY WITH THE SAME. HE HAS ALSO SUBMITTED THAT EVEN THE SPECIFIC DIRECTIONS GIVEN BY THE LD. CIT IN HIS ORDER DATED 11.03.2013 PASSED U/S 263 WERE NOT FOLLOWED BY THE ASSESSING OFFICER IN AS MUCH AS NO ENQUIRY WHATSOEVER WAS MADE BY THE AO DIRECTLY WITH THE CONCERNED SHAREHOLDERS COMPANY. HE HAS URGED THAT THIS MATTER MAY, THEREFORE, BE SENT BACK TO THE AO FOR PASSING THE ASSESSMENT ORDER AFRESH AS PER THE SPECIFIC DIRECTIONS GIVEN BY THE LD. CIT VIDE HIS ORDER DATED 11.03.2013 PASSED 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 ASSESSING OFFICER, 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 COMPLETING THE ASSESSMENT AFRESH AS PER THE SPECIFIC DIRECTIONS GIVEN BY THE LD. CIT IN HIS ORDER DATED 11.03.2013 PASSED U/S 263. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE A DUE COMPLIANCE BEFORE THE AO AND SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT EXPEDITIOUSLY. 4 SCROLL VINIMAY PVT. LTD. I.T.A. NO.1238/KOL/2018 ASSESSMENT YEAR: 2008-09 6. 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 COPY OF ORDER FORWARDED TO: 1. SCROLL VINIMAY PVT. LTD., C/O. LAXMAN M SAWANT, 7/610, SAI SUNDAR NAGAR, NEAR BHUSA INDUSTRIAL, SADANAND HASU TANDAL MARG, PRABHADEVI, MUMBAI 400 025. 2. ITO, WARD 1(3), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA