M/s. Aryan Deposits & Advances Pvt. Ltd., Kolkata V. ITO, Ward-1(4), Kolkata, Kolkata

ITA 1250/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3048 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: S M SURANA
• Keywords: Unexplained cash credit; Opportunity of being heard; Onus to prove; Reassessment proceedings
• Section: 142(1); 133(6); 143(1); 147; 131; 68; 263; 144

Judgement Text

1 ITA NO.1250/KOL/2017 ARYAN DEPOSITS & A DVANCES PVT LTD., AY- 2008-09 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . . ! , ' #$ ) [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI A. T. VARKEY, JM] I.T.A. NO. 1250/KOL/2017 ASSESSMENT YEAR: 2008-09 M/S. ARYAN DEPOSITS & ADVANCES PVT. LTD. (PAN: AAHCA7571Q) VS. INCOME-TAX OFFICER, WD. 1(4), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 17.01.2019 DATE OF PRONOUNCEMENT 27.02.2019 FOR THE APPELLANT SHRI S. M. SURANA, ADVOCATE FOR THE RESPONDENT SHRI A. K. NAYAK, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-9, KOLKATA DATED 22.03.2018 FOR AY 2008-09. 2. THOUGH THE ASSESSEE HAVE RAISED 13 GROUNDS OF APPEAL, BUT THE SOLE ISSUE INVOLVED IS AGAINST THE ACTION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.80,91,00,000/- AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME-TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), WHICH SUM REPRESENTED AMOUNTS RECEIVED BY T HE ASSESSEE TOWARDS SHARE CAPITAL AND SHARE PREMIUM. 3. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE COMPA NY FILED ITS RETURN OF INCOME FOR THE A.Y. 2008-09 ELECTRONICALLY U/S 139(1) OF THE ACT O N 27.07.2009 SHOWING TOTAL INCOME OF RS.58,080/-. THE RETURN WAS PROCESSED 143(1) OF THE ACT. SUBSEQUENTLY, THE AO FOUND THAT THE ASSESSEE HAD CLAIMED SHARE ISSUE EXPENSES OF RS .93,000/- AS DEDUCTION WHILE COMPUTING THE TOTAL INCOME WHICH ESCAPED ASSESSMENT. THIS LE D THE AO TO REOPEN THE ASSESSMENT U/S. 147 OF THE ACT. THE REASSESSMENT ORDER WAS FRAMED BY THE AO U/S. 143(3)/147 OF THE ACT 2 ITA NO.1250/KOL/2017 ARYAN DEPOSITS & A DVANCES PVT LTD., AY- 2008-09 ON 29.12.2010 ON A TOTAL INCOME OF RS.1,51,080/-. DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS THE AO ALSO FOUND THAT DURING THE YEAR THE ASSESSEE COMPANY RAISED SHARE CAPITAL OF RS.80,91,00,000/- ALONG WITH PREMIUM. A CCORDINGLY, THE AO ASKED THE ASSESSEE VIDE NOTICE ISSUED U/S. 142(1) OF THE ACT FOR THE DETAILS OF SUCH SHARE CAPITAL. AS REQUIRED, THE ASSESSEE FILED THE CONFIRMATION LETTERS OF THE SHARE APPLICANTS, THEIR PROFIT AND LOSS ACCOUNT, BALANCE SHEET, ACKNOWLEDGMENT OF FILING OF THE RETURN , PAN OF THE SHARE APPLICANTS AMOUNT RECEIVED , NO. OF SHARES ALLOTTED AND ALSO FILED COPIES OF FORM NO. 2 (RETURN OF ALLOTMENT) AND FORM NO. 5 (FOR INCREASE IN AUTHORIZED SHARE CAPITAL) TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE S HARE APPLICANTS. THE AO THEN ISSUED NOTICES U/S. 133(6) OF THE ACT TO MAJORITY OF SHARE CAPITAL CONTRIBUTORS. ACCORDING TO AO, ALL THESE SHARE APPLICANTS DULY RESPONDED TO THE SAID S UMMONS AND ACCEPTED HAVING CONTRIBUTED TO THE SHARE CAPITAL OF THE ASSESSEE AND THEY HAVE ON THEIR OWN FILED BANK STATEMENTS, ACKNOWLEDGMENT OF FILING OF THE RETURN BALANCE SHEE TS AND EXPLAINED THE SOURCE OF THE INVESTMENTS IN SHARES OF THE ASSESSEE. THE AO, THER EAFTER ACCEPTED THE SHARE CAPITAL CONTRIBUTION AND PASSED THE REASSESSMENT ORDER U/S. 147/143(3) OF THE ACT. SUBSEQUENTLY, THE LD. CIT, SERVED SHOW CAUSE NOTICE AND PASSED OR DER U/S. 263 DATED 07.03.2013 CANCELLING THE SAID ASSESSMENT. ACCORDING TO LD. C IT, THE AO DID NOT EXAMINE THE ISSUE OF SHARE CAPITAL SINCE THERE WAS NOTHING ON RECORD THA T ANY DETAILS WERE FILED. THE ASSESSEE FILED APPEAL CHALLENGING THE ACTION OF LD. CIT BEF ORE THE ITAT WHICH HAS BEEN DISMISSED. IN THE SEC. 263 ORDER THE LD. CIT SPECIFICALLY DIRE CTED THAT THE AO SHOULD PASS THE ASSESSMENT ORDER AFTER CONDUCTING INDEPENDENT DETAI LED AND COMPLETE ENQUIRIES INTO THE SUBSCRIPTION OF THE SHARE CAPITAL AND PREMIUM AND T HE AO SHOULD TRACE THE SOURCE OF SHARE CAPITAL BY ENQUIRING INTO THE VARIOUS LAYERS THROUG H WHICH THE MONEY HAS BEEN INTRODUCED IN THIS COMPANY AS SHARE CAPITAL AND ALSO EXAMINE T HE THEN DIRECTORS OF SUBSCRIBER COMPANIES BY ISSUING SUMMONS UNDER SEC. 131 OF THE ACT. AND THAT THE AO SHOULD FORWARD INFORMATION TO THE AOS HAVING JURISDICTION OVER THE SUBSCRIBER COMPANY TO THE SHARE CAPITAL REGARDING ITS INVESTMENT INTO SHARE CAPITAL AND PRE MIUM PAID. IT WAS SPECIFICALLY DIRECTED BY LD. CIT THAT THE AO SHOULD CONDUCT INDEPENDENT ENQU IRIES TO VERIFY THE DOCUMENTS FILED BEFORE HIM IN RESPECT OF PROOF OF SUBSCRIPTION TO S HARE CAPITAL. AND THAT THE AO SHOULD NOT 3 ITA NO.1250/KOL/2017 ARYAN DEPOSITS & A DVANCES PVT LTD., AY- 2008-09 CONFINE HIMSELF IN CONDUCTING ENQUIRIES INTO THE SU BSCRIBERS TO THE SHARE CAPITAL ONLY ON SELECTIVE BASIS. THE AO SHOULD ALSO CALL UPON THE A SSESSEE TO IDENTIFY THE PERSONS WHO ARE SHOWN AS DIRECTORS OF THE ASSESSEE COMPANY AND EXAM INE THEM ON OATH TO VERIFY THEIR CREDENTIAL AS DIRECTORS. THE AO SHOULD PASS SPEAKIN G ORDER AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE AND VERIFYING THE SOURC E OF SHARE CAPITAL INCLUDING THE SHARE PREMIUM OF ALL THE SUBSCRIBERS AND ROTATION OF MONE Y THROUGH VARIOUS HANDS SO AS TO ASCERTAIN THE TRUE NATURE OF TRANSACTION WHICH WILL BRING THE REALITY OF THE TRANSACTIONS. THOUGH THESE WERE THE GUIDELINES GIVEN BY THE LD. C IT TO AO, THE AO ISSUED NOTICE TO ASSESSEE U/S. 142(1) OF THE ACT DATED 21.02.2014 TO SUBSTANTIATE THE EXISTENCE, IDENTITY AND CREDITWORTHINESS OF ITS SHARE SUBSCRIBERS AND GENUI NENESS OF SHARE SUBSCRIPTION TRANSACTION CLAIMED BY IT. THEREAFTER, A FINAL REMINDER DATED 21.02.2014 WAS ISSUED TO THE ASSESSEE COMPANY. THEREAFTER, SUMMONS U/S. 131 OF THE ACT DA TED 21.02.2014 WAS ISSUED AND SERVED ON THE DIRECTOR OF THE ASSESSEE COMPANY DIRECTING H IS PERSONAL APPEARANCE OF THE DIRECTOR ALONG WITH COMPLETE SET OF BOOKS OF ACCOUNT AND ALL THE RELEVANT DOCUMENTS. SIMULTANEOUSLY SUMMONS U/S. 131 OF THE ACT DATED 21 .02.2014 WERE ISSUED TO THE DIRECTORS OF THE SHARE SUBSCRIBER COMPANIES FOR THEIR PERSONA L APPEARANCE ALONG WITH COMPLETE SET OF BOOKS OF ACCOUNT AND ALL OF THE RELEVANT DETAILS/DO CUMENTS TO SUBSTANTIATE THEIR IDENTITY, THE EXISTENCE, IDENTITY, CREDITWORTHINESS AND SOURCES O F FUNDS OF THE SUBSCRIBER COMPANY TO MAKE PAYMENT OF SHARE APPLICATION MONEY TO THE ASSE SSEE COMPANY AND GENUINENESS OF SHARE SUBSCRIPTION TRANSACTIONS CLAIMED BY THE ASSE SSEE COMPANY. ACCORDING TO AO, INSPITE OF ALL THE AFORESAID NOTICES, NEITHER THE DIRECTORS OF THE ASSESSEE COMPANY NOR THE SUBSCRIBING COMPANIES APPEARED TO SUBSTANTIATE THE GENUINENESS OF SHARE SUBSCRIPTION TRANSACTIONS. THEREFORE, ACCORDING TO AO, IN THE I NSTANT CASE THE ASSESSEES INABILITY TO DISCHARGE ITS BURDEN OF PROOF TO SUBSTANTIATE ITS C LAIM OF INTRODUCTION OF FRESH SHARE CAPITAL, INCLUDING PREMIUM, THE AO HELD THAT ITS PURPORTED F RESH SHARE CAPITAL ALONG WITH SHARE PREMIUM, AMOUNTING TO RS.80,91,00,000/- IS NOTHING BUT ASSESSEES OWN MONEY ROUTED UNDER THE GARB OF FRESH SHARE CAPITAL INTO ITS BOOK S OF ACCOUNT. HENCE, THE AO TREATED THE SAID SUM OF RS.80,91,00,00/- AS UNEXPLAINED CASH CR EDIT FOUND IN THE BOOKS OF ACCOUNT OF THIS ASSESSEE DURING THE YEAR AND WAS ACCORDINGLY A DDED BACK TO THE TOTAL INCOME OF THE 4 ITA NO.1250/KOL/2017 ARYAN DEPOSITS & A DVANCES PVT LTD., AY- 2008-09 ASSESSEE COMPANY AND MADE THE ASSESSMENT U/S 147/14 3(3)/263/144 OF THE ACT ON 24.03.2014 AT THE ASSESSED INCOME OF RS.80,92,51,08 0/- . AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO CONFIRMED THE ACT ION OF AO AND DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED, ASSESSEE IS BEFORE US. 4. THE LD. AR ASSAILING THE DECISION OF THE LD. CIT (A), WANTS US TO DELETE THE ADDITION CONFIRMED BY THE LD. CIT(A) AND POINTED OUT BEFORE US THAT NO PROPER OPPORTUNITY THE ASSESSEE GOT BEFORE THE AO DURING THE ASSESSMENT P ROCEEDINGS, SO THE AOS ORDER IS BAD IN LAW. PER CONTRA, THE LD. DR SUPPORTED THE ACTION O F THE LD. CIT(A) AND DOES NOT WANT US TO INTERFERE IN THE ORDER OF THE LD. CIT(A). 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE AO WAS GIVING EFFECT TO THE ORDER OF LD. CIT PASSED U/S. 263 OF THE ACT ON 07.03.2013. WHEREAS WE NOTE THAT THE LD. CITS DIRECTION IN SIMILAR CASE WAS TO MAKE ENQUIRIES TO UNRAVEL THE MODUS OPERANDI BY INV ESTIGATION AS PER FOLLOWING GUIDELINES: THE AO IS DIRECTED TO (I) EXAMINE THE GENUINENESS A ND SOURCE OF SHARE CAPITAL, NOT ON A TEST CHECK BASIS, BUT IN RESPECT OF EACH AND EVERY SHARE HOLDER BY CONDUCTING INDEPENDENT ENQUIRY NOT THROUGH THE ASSESSEE. THE BANK ACCOUNT FOR THE ENTIRE PERIOD SHOULD BE EXAMINED IN THE COURSE OF VERIFICATION TO FIND OUT THE MONEY TRAIL OF THE SHARE CAPITAL. II) FURTHER THE AO SHOULD EXAMINE THE DIRECTORS AS WELL AS EXAMINE THE CIRCUMSTANCES WHICH NECESSITATED THE CHANGE IN DIRECTORSHIP IF APPLICAB LE. HE SHOULD EXAMINE THEM ON OATH TO VERIFY THEIR CREDENTIALS AS DIRECTOR AND REACH A LO GICAL CONCLUSION REGARDING THE CONTROLLING INTEREST. III) THE AO IS DIRECTED EXAMINE THE SOURCE OF REALI ZATION FROM THE LIQUIDATION OF ASSETS SHOWN IN THE BALANCE SHEET AFTER THE CHANGE OF DIRECTORS, IF ANY. 6. HOWEVER, THE LD. AR DREW OUR ATTENTION TO THE AO S NOTICE I.E. DATED 21.02.2014. AFTER THAT THE AO PASSED THE REASSESSMENT ORDER ON 24.03.2014 EX PARTE BY INVOKING SEC. 144 OF THE ACT. SO, ACCORDING TO HIM, THE AO PASSE D THE REASSESSMENT ORDER EX PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. HENCE, THE MAIN GRIEVANCE OF THE ASSESSEE IS THA T NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO DISCHARGE THE ONUS CASTED UPON IT A S REQUIRED WHEN SECTION 68 IS INVOLVED 5 ITA NO.1250/KOL/2017 ARYAN DEPOSITS & A DVANCES PVT LTD., AY- 2008-09 WHEREIN DOCUMENTS/PROOF OF IDENTITY, CREDITWORTHINE SS AND GENUINENESS OF THE CASH CREDIT NEEDS TO BE ADJUDICATED. WE NOTE THAT AO HAS DRAWN ADVERSE INFERENCE AGAINST THE ASSESSEE COMPANY SINCE ASSESSEES AS WELL AS THE INVESTORS DIRECTORS FAILED TO PERSONALLY APPEAR BEFORE HIM. THEREAFTER, THE AO PASSED THE BEST JU DGMENT ASSESSMENT U/S. 144 OF THE ACT. AND WE NOTE THAT OTHER THAN ISSUING SUMMONS U/S. 13 1 OF THE DIRECTORS OF THE ASSESSEE COMPANY NO OTHER INVESTIGATION AS DIRECTED BY LD. C IT WAS CONDUCTED BY AO AS IS DISCERNABLE FROM THE ORDER. SO, IN THE LIGHT OF TH E AFORESAID FACTS, WE FIND FORCE IN THE SUBMISSION OF THE LD. AR THAT NO PROPER OPPORTUNITY THE ASSESSEE GOT BEFORE THE AO DURING THE REASSESSMENT PROCEEDINGS. SINCE PROPER OPPORTUN ITY WAS NOT GIVEN TO ASSESSEE BY AO DURING THE REASSESSMENT PROCEEDINGS, WE ARE OF THE OPINION THAT ASSESSEE SHOULD GET PROPER OPPORTUNITY BEFORE THE AO DURING REASSESSMENT PROCE EDINGS. THE HONBLE (THREE JUDGE BENCH) OF THE HONBLE SUPREME COURT IN TIN BOX COMP ANY VS. CIT (2001) 249 ITR 216 (SC) HAS HELD AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEI NG HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A RE ASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CO NSIDERATION, AS AFORESTATED. 6 ITA NO.1250/KOL/2017 ARYAN DEPOSITS & A DVANCES PVT LTD., AY- 2008-09 8. IN SIMILAR CASE THIS TRIBUNAL IN ITA NO.393/KOL/ 2016 IN M/S. STAR GRIHA (P) LTD. VS. ITO FOR AY 2008-09 DATED 15.12.2017 HAS OBSERVED AS UNDER:- WE ALSO NOTE THAT THE LD. CIT AFTER LOOKING INT O THE PERNICIOUS PRACTICE OF CONVERTING BLACK MONEY INTO WHITE MONEY HAS GIVEN THE GUIDELIN ES TO AO AS TO HOW THE INVESTIGATION SHOULD BE CONDUCTED TO FIND OUT THE SOURCE. SINCE SIMILAR ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD BY THE TRIBUNAL AS WELL AS BY THE HONBLE CALCUTTA HIGH COURT AS WELL AS THE SLP HAS BEEN DISMISSED BY THE HONBLE S UPREME COURT, SIMILAR ORDER OF THE LD. CIT HAS TO BE GIVEN EFFECT TO AS DIRECTED BY THE LD . CIT. WE TAKE NOTE THAT THE LD. CIT WITH HIS EXPERIENCE AND WISDOM HAS GIVEN CERTAIN GUIDELINES IN THE BACKDROP OF BLACK MONEY MENACE SHOULD HAVE BEEN PROPERLY ENQUIRED INTO AS DIRECTED BY HIM. THE AO OUGHT TO HAVE FOLLOWED THE INVESTIGATING GUIDELINES AND METHOD AS DIRECTED BY HIM TO UNEARTH THE FACTS TO DETERMINE WHETHER THE IDENTITY, GENUINENESS AND CREDITWORTHIN ESS OF THE SHARE SUBSCRIBERS. WE NOTE THAT THE HONBLE SUPREME COURT (THREE JUDGES BENCH) IN THE CASE OF TIN BOX, (SUPRA), HAS HELD THAT SINCE THERE WAS LACK OF OPPORTUNITY TO THE ASSESSEE AT THE ASSESSMENT STAGE ITSELF, THE ASSESSMENT NEEDS TO BE DONE AFRESH AND THEREBY REVE RSED THE HONBLE HIGH COURT, TRIBUNAL AND CIT(A)S ORDERS AND REMANDED THE MATTER BACK T O AO FOR FRESH ASSESSMENT. SO, SINCE THERE WAS LACK OF OPPORTUNITY AS AFORESTATED IT HAS TO GO BACK TO AO. 9. WE ALSO NOTE THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. JANSAMPARK ADVERTISING & MARKETING PVT. LTD. IN ITA NO. 525/20 14 DATED 11.03.2015 WHEREIN AFTER NOTICING INADEQUATE ENQUIRY BY AUTHORITIES BELOW HA VE HELD AS UNDER: 41. WE ARE INCLINED TO AGREE WITH THE CIT(APPEALS) , AND CONSEQUENTLY WITH ITAT, TO THE EXTENT OF THEIR CONCLUSION THAT THE ASSESSEE HEREIN HAD COME UP WITH SOME PROOF OF IDENTITY OF SOME OF THE ENTRIES IN QUESTION. BUT, FROM THIS INF ERENCE, OR FORM THE FACT THAT THE TRANSACTIONS WERE THROUGH BANKING CHANNELS, IT DOES NOT NECESSAR ILY FOLLOWING THAT SATISFACTION AS TO THE CREDITWORTHINESS OF THE PARTIES OR THE GENUINENESS OF THE TRANSACTIONS IN QUESTION WOULD ALSO HAVE BEEN ESTABLISHED. 42. THE AO HERE MAY HAVE FAILED TO DISCHARGE HIS OB LIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. BUT CIT(APPE ALS), HAVING NOTICED WANT OF PROPER INQUIRY, COULD NOT HAVE CLOSED THE CHAPTER SIMPLY B Y ALLOWING THE APPEAL AND DELETING THE ADDITIONS MADE. IT WAS ALSO THE OBLIGATION OF THE F IRST APPELLATE AUTHORITY, AS INDEED OF ITAT, TO HAVE ENSURED THAT EFFECTIVE INQUIRY WAS CARRIED OUT, PARTICULARLY IN THE FACT OF THE ALLEGATIONS OF THE REVENUE THAT THE ACCOUNT STATEME NTS REVEAL UNIFORM PATTERN OF CASH DEPOSITS OF EQUAL AMOUNTS IN THE RESPECTIVE ACCOUNTS PRECEDI NG THE TRANSACTIONS IN QUESTION. THIS NECESSITATED A DETAILED SCRUTINY OF THE MATERIAL SU BMITTED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION148 ISSUED BY THE AO, AS ALSO T HE MATERIAL SUBMITTED AT THE STAGE OF APPEALS, IF DEEMED PROPER BY WAY OF MAKING OR CAUSI NG TO BE MADE A 'FURTHER INQUIRY IN EXERCISE OF THE POWER UNDER SECTION 250(4). HIS APP ROACH NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDER OF ITAT, AND CONSEQUENTLY THAT OF CI T(APPEALS), CANNOT BE APPROVED OR UPHELD.' 7 ITA NO.1250/KOL/2017 ARYAN DEPOSITS & A DVANCES PVT LTD., AY- 2008-09 10. IN VIEW OF THE AFORESAID ORDER AND IN THE LIGHT OF THE HONBLE SUPREME COURTS DECISION IN TIN BOX COMPANY (SUPRA) AND TAKING INTO CONSIDERATION THE FACT THE ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT IN SIMILAR CASES BEING UPHELD UP TO THE LEVEL OF APEX COURT, AND TAKING NOTE OF HONBLE DELHI HIGH COURT S ORDER IN JANSAMPARK ADVERTISING & MARKETING PVT. LTD. (SUPRA), WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR DE NOVO ASSESSMENT AND T O DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. 11. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 27TH FEBR UARY, 2019 SD/- SD/- (P. M. JAGTAP) (ABY. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED : 27TH FEBRUARY, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. ARYAN DEPOSITS & ADVANCES PVT. LTD., C/O, RAJESH KR. AGARWAL (FCA) UNIT NO. 18, 5 TH FLOOR, BAGATI HOUSE, 34, GANESH CHANDRA AVENUE, KOLKATA-700 013. 2 RESPONDENT ITO, WARD-1(4), KOLKATA. 3. 4. CIT(A)-9, KOLKATA (SENT THROUGH E-MAIL) CIT- , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR