M/s Shree Kartikey Commodities Pvt Ltd, Kolkata V. I.T.O.Ward-6(3), Kolkata

ITA 1338/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1628 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S JHAJHARIA; S SEN
• Keywords: Set aside
• Section: 131; 68; 263; 143(3)

Judgement Text

1 ITA NO. 1338/KOL/2019 M/S. SHREE KARTIKEY COMMODITIE S PVT. LTD., AY- 2008-09 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1338/KOL/2019 ASSESSMENT YEAR: 2008-09 M/S. SHREE KARTIKEY COMMODITIES PVT. LTD. (PAN: AALCS3153J) VS. INCOME-TAX OFFICER, WD-6(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 31.07.2019 DATE OF PRONOUNCEMENT 06.09.2019 FOR THE APPELLANT SHRI S. JHAJHARIA, FCA & SHRI S. SEN, ADVOCATE FOR THE RESPONDENT SHRI ABANI KANTA NAYAK, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-2, KOLKATA DATED 16.02.2016 FOR AY 2008-09. 2. THE MAIN GROUND INVOLVED IN THIS APPEAL OF ASSES SEE IS AGAINST THE ACTION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.13,67,00,00 0/- U/S. 68 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) TREATING THE SHARE APPLICATION MONEY AND SHARE PREMIUM RECEIVED DURING THE YEAR AS UNEXPLAINED CAS H CREDIT. 3. AT THE TIME OF HEARING THE LD. AR DREW OUR ATTEN TION TO THE FACT THAT THE AO HAS MADE THE ADDITION U/S. 68 OF THE ACT ON ACCOUNT OF SHARE CAPITAL PLUS SHARE PREMIUM COLLECTED BY THE ASSESSEE COMPANY. IT WAS POINTED OUT BY THE LD . AR THAT PURSUANT TO THE ORDER OF LD. CIT, KOLKATA-II U/S. 263 OF THE ACT, THE AO HAS CAR RIED OUT THE GIVING EFFECT OF HIS ORDER DATED 31.05.2010. HOWEVER, ACCORDING TO LD. AR, TH E GUIDELINES STIPULATED BY THE LD. CIT THOUGH REPRODUCED BY THE AO AT PAGE 4 OF THE ASSESS MENT ORDER, HE DID NOT CARRY IT OUT AS PER THE GUIDELINES AND HAS RESORTED TO ADDITION ONL Y BECAUSE THE DIRECTORS OF THE ASSESSEE COMPANY. ACCORDING TO THE LD. AR, THERE WERE THIRT Y (30) SHARE SUBSCRIBERS WHICH COMPANIES HAVE BEEN EITHER ASSESSED UNDER SCRUTINY U/S. 143(3)/147 READ WITH SEC. 143(3) OF THE ACT AND DREW OUR ATTENTION TO THE CHART AS WELL AS THE PAPER BOOK CONTAINING ASSESSMENT 2 ITA NO. 1338/KOL/2019 M/S. SHREE KARTIKEY COMMODITIE S PVT. LTD., AY- 2008-09 ORDERS OF ALL THE SHARE SUBSCRIBERS. THE AO HAS DR AWN ADVERSE INFERENCE ONLY BECAUSE THE ASSESSEE FAILED TO PRODUCE ITS DIRECTORS WHEN SUMMO NS U/S. 131 OF THE ACT WAS SENT TO IT. WE NOTE FROM THE PAPER BOOK FILED BEFORE US THAT TH IRTY SHARE SUBSCRIBERS WHICH ALL CONTRIBUTED TO THE SHARE CAPITAL PLUS SHARE PREMIUM OF THE ASSESSEES ARE ALL INCOME TAX ASSESSEES AND THEIR ASSESSMENTS HAS BEEN CARRIED OU T BY THEIR RESPECTIVE AOS UNDER SCRUTINY U/S. 143(3)/147 READ WITH SECTION 143(3) OF THE ACT . THIS FACT HAS NOT BEEN TAKEN INTO CONSIDERATION BY THE AO. THIS IMPORTANT FACT NEEDS TO BE TAKEN INTO CONSIDERATION BY THE AO WHICH ADMITTEDLY HAS NOT BEEN DONE IN THIS CASE. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY FOR BOTH THE PARTIES, WE SET ASIDE THE OR DER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR FRAMING DE NOVO ASSESSME NT AFTER TAKING INTO CONSIDERATION THE AFORESAID FACTS ABOUT THE SHARE SUBSCRIBERS AND THE AO TO FRAME THE ASSESSMENT AFTER GIVING OPPORTUNITY TO THE ASSESSEE IN ACCORDANCE TO LAW. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE ORDER IS PRONOUNCED IN THE OPEN COURT ON 6 TH SEPTEMBER, 2019. SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 6 TH SEPTEMBER, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. SHREE KARTIKEY COMMODITIES PVT. LTD., C/O SALARPURIA JAJODIA & CO., 3 RD FLOOR, 7. CHITTARANJAN AVENUE, KOLKATA-700 072. 2 RESPONDENT ITO, WARD-6(3), KOLKATA. 3. 4. CIT(A)-2, KOLKATA CIT-, , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR