M/s. A.G. Infraproperties Pvt. Ltd., , Kolkata V. ITO, Ward - 4(3), Kolkata , Kolkata

ITA 1246/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2611 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 05-06-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYITI ROY
• Assessee Lawyers: MIRAJ D. SHAH
• Section: 133(6); 13; 131

Judgement Text

1 ITA NO.1246/KOL/2018 A.G. INFRAPROPERTIES P. LIMIT ED AY- 2012-13 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ().. , .. !,'#$) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHR I A. T. VARKEY, JM] ITA NO.1246/KOL/2018 ASSESSMENT YEAR: 2012-13 A.G. INFRAPROPERTIES PVT. LTD. (PAN: AAJCA6073H) VS. INCOME-TAX OFFICER, WARD-4(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 21.01.2020 DATE OF PRONOUNCEMENT 18.03.2020 FOR THE APPELLANT SHRI MIRAJ D. SHAH, ADVOCATE FOR THE RESPONDENT SHRI DHRUBAJYITI ROY, JCIT, SR. DR ORDER PER A. T. VARKEY, JM: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-13, KOLKATA DATED 16-03-2018 FOR THE ASSESSMENT YEAR 2012-13. 2. AT THE OUTSET ITSELF, THE LD. AR OF THE ASSESSEE SHRI MIRAJ D. SHAH SUBMITTED THAT THE ASSESSEE COMPANY IN THIS YEAR HAD COLLECTED SHARE C APITAL AND PREMIUM AND DURING THE ASSESSMENT PROCEEDINGS THE AO ISSUED NOTICE U/S. 13 3(6) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) TO THE SHARE HOLDERS AS PER FORM 2 AND THAT THE AO ACKNOWLEDGES THAT THE SHAREHOLDERS HAVE CONFIRMED T HE PAYMENT OF SHARE CAPITAL AS WELL AS PREMIUM. AND SINCE THIS WAS THE FIRST YEAR OF INCOR PORATION OF THE ASSESSEE COMPANY THE AO DOUBTED THE HUGE SHARE CAPITAL AND PREMIUM COLLECTE D BY THE ASSESSEE. THE AO ISSUED SUMMONS U/S. 131 OF THE ACT TO THE DIRECTORS OF THE ASSESSEE COMPANY AS WELL AS THE SHARE SUBSCRIBING COMPANIES. ACCORDING TO AO, NONE OF TH E DIRECTORS OF THE SHARE SUBSCRIBING COMPANIES APPEARED BEFORE HIM AND INSTEAD THEY ONLY FILED THE CONFIRMATION IN RESPECT OF SUBSCRIBING TO THE SHARES AS WELL AS SHARE PREMIUM. THE LD. AR CONTENDED THAT THE DIRECTOR OF THE ASSESSEE COMPANY SHRI GIRDHARILAL SARAF HAD IN FACT APPEARED PURSUANT TO THE SECTION 131 NOTICE AND HAS ANSWERED THE QUERIES ASKED FOR B Y THE AO. HOWEVER, ACCORDING TO LD. 2 ITA NO.1246/KOL/2018 A.G. INFRAPROPERTIES P. LIMIT ED AY- 2012-13 AR, THE AO WAS NOT SATISFIED AND BASED ON SUSPICION AND SURMISES AND ALLEGING THAT DIRECTORS OF THE SHARE SUBSCRIBING COMPANIES DID NO T APPEAR BEFORE HIM HE MADE THE ADDITION OF THE ENTIRE SHARE CAPITAL PLUS PREMIUM, WHICH ACT ION OF THE AO HAS BEEN CONFIRMED BY THE LD. CIT(A). 3. ACCORDING TO THE LD. AR, THE DIRECTORS OF THE SH ARE SUBSCRIBING COMPANIES WERE OUT OF STATION AND, THEREFORE, THEY COULD NOT APPEAR BE FORE THE AO SINCE THERE WAS NO SUFFICIENT REACTION TIME. ACCORDING TO THE LD. AR, GIVEN AN O PPORTUNITY THE ASSESSEE IS READY TO PRODUCE ALL THE DIRECTORS OF ALL THE SHARE SUBSCRIB ING COMPANIES TO ALLAY ALL THE DOUBTS PERSISTING IN THE MIND OF THE AO, IF ANY. PER CONT RA, THE LD. DR THOUGH OPPOSED THE PLEA OF THE LD. AR, HOWEVER, WANTS THE LD. AR TO UNDERTAKE THAT BEFORE THE AO THE ASSESSEE WILL PRODUCE THE DIRECTORS OF THE SHARE SUBSCRIBING COMP ANIES. 4. HAVING HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL AVAILABLE ON RECORD, WE NOTE THAT THE AO HAS NOTED THAT THIS IS THE FIRST YEAR O F INCORPORATION OF THE ASSESSEE COMPANY AND IT HAD COLLECTED SHARE CAPITAL AND PREMIUM AMOUNT O F RS.1.99 CR. ACCORDING TO AO, PURSUANT TO THE ISSUE OF NOTICE U/S. 133(6) OF THE ACT, THE SHARE SUBSCRIBERS HAD CONFIRMED INFUSEMENT OF THE AMOUNT IN QUESTION TO THE ASSESSE E COMPANY. HOWEVER, THE AO TAKING NOTE THAT THIS WAS THE FIRST YEAR OF INCORPORATION OF THE ASSESSEE COMPANY ISSUED SEC. 131 NOTICES TO ALL THE SHARE SUBSCRIBERS AS WELL AS TO THE ASSESSEE. AND THE AO ACKNOWLEDGES THAT PURSUANT TO THE NOTICE, THE DIRECTOR OF THE AS SESSEE COMPANY APPEARED BEFORE HIM. HOWEVER, THE AO NOTED THAT THE DIRECTORS OF THE SHA RE SUBSCRIBING COMPANIES DID NOT TURN UP BEFORE HIM. SINCE THE DIRECTORS DID NOT TURN UP BE FORE HIM, THE AO DREW ADVERSE INFERENCE AGAINST THE ASSESSEE AND MADE THE ENTIRE ADDITION O F RS.1.99 CR. BEFORE US, THE LD. AR SUBMITS THAT THE SEC. 131 NOTICE SUMMONING THE DIRE CTORS OF THE SHARE SUBSCRIBING COMPANIES COULD NOT BE COMPLIED WITH DUE TO THEIR EARLIER COM MITMENTS THEY WERE OUT OF STATION AND NOW THEY WOULD BE IN A POSITION TO APPEAR BEFORE TH E AO AND SATISFY ALL THE QUERIES RAISED BY THE AO. WE NOTE THAT THE SHARE SUBSCRIBERS PURSUAN T TO SEC. 133(6) NOTICE HAD CONFIRMED TO THE AO OF SUBSCRIBING THE SHARE CAPITAL ALONG WITH PREMIUM. HOWEVER, THEIR DIRECTORS COULD NOT APPEAR BEFORE THE AO DUE TO EARLIER COMMITMENTS AND SINCE THEY WERE OUT OF STATION. TAKING INTO CONSIDERATION THE AFORESAID FACTS, WE A RE OF THE CONSIDERED OPINION THAT THE ASSESSEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. 3 ITA NO.1246/KOL/2018 A.G. INFRAPROPERTIES P. LIMIT ED AY- 2012-13 THEREFORE, RELYING ON THE ORDER OF THE HONBLE SUPR EME COURT IN THE CASE OF TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC), WE SET AS IDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR FRESH ASSESSMENT IN ACCORDANCE TO LAW AFTER HEARING THE ASSESSEE. THE ASSESSEE IS DIRECTED TO DILIGENTLY PARTICIPATE IN THE ASSESSMENT PROCEEDINGS AND TO PRODUCE THE DIRECTORS OF THE SHA RE SUBSCRIBING COMPANIES AS DIRECTED BY THE AO. THEREFORE, THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18TH MA RCH, 2020. SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 18TH MARCH, 2020 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. M/S. A. G. INFRAPROPERTIES PVT. LTD., 85, N. S. ROAD, 4 TH FLOOR, R. NO. 408, KOLKATA-72. 2 RESPONDENT ITO, WARD-4(3), KOLKATA. 3. 4. 5. CIT(A)-13, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) BY ORDER, / TRUE COPY, ASSISTANT REGISTRAR