ITO, Ward-14(1), Kolkata, Kolkata V. M/s. Ambey Infratech Pvt. Ltd., Kolkata

ITA 1353/KOL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4314 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-04-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 07-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Assessee Lawyers: MANISH TIWARI
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Source of fund; Set aside
• Section: 143(3); 142(1); 250; 68; 263; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER) I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 INCOME TAX OFFICER, WARD-14(1), KOLKATA..........................................................APPELLANT M/S. AMBEY INFRATECH PVT. LTD.....................................................RESPONDENT GROUND FLOOR AMBEY HOUSE NEW TOWN ROAD KOLKATA 700 157 [PAN : AAFCA 4850 E] I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD..........................................................APPELLANT GROUND FLOOR AMBEY HOUSE NEW TOWN ROAD KOLKATA 700 157 [PAN : AAFCA 4850 E] INCOME TAX OFFICER, WARD-14(1), KOLKATA......................................................RESPONDENT APPEARANCES BY: SHRI MANISH TIWARI A/R, APPEARED ON BEHALF OF THE ASSESSEE. SHRI ROBIN CHOUDHURY, ADDL. CIT SR. DR. , APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : APRIL 11 TH, 2019 DATE OF PRONOUNCING THE ORDER : MAY 10 TH , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL BY THE REVENUE AND CROSS-OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 5, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 24/03/2017, FOR THE ASSESSMENT YEAR 2013-14. 2. THE ASSESSEE IS A COMPANY AND IS IN THE BUSINESS OF REAL ESTATE I.E., LAND DEVELOPMENT. DURING THE YEAR, IT FILED ITS RETURN OF INCOME ON 30/09/2013, DECLARING TOTAL INCOME OF RS.10,08,920/-. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT U/S 2 I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD 143(3) OF THE ACT, DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.2,25,45,046/- INTERALIA MAKING ADDITION OF SHARE CAPITAL U/S 68 OF THE ACT OF RS.50,00,000/- AND UNEXPLAINED DEPOSITS OF RS.2,10,36,126/-. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL. THE LD. FIRST APPELLATE AUTHORITY DELETED THE ADDITION TOWARDS UNEXPLAINED DEPOSITS FOR THE DETAILED REASONS GIVEN IN HIS ORDER FROM PARA 2.3. ONWARDS (PAGES 8 TO 10). AS REGARDS THE ADDITION ON ACCOUNT OF SHARE CAPITAL U/S 68 OF THE ACT, THE LD. CIT(A) CONFIRMED THE ADDITION. 3. AGGRIEVED, BOTH THE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE FILED A PAPER BOOK RUNNING INTO 134 PAGES. HE SUBMITTED THAT THE ADDITION SUSTAINED BY THE LD. CIT(A) ON ACCOUNT OF SHARE CAPITAL IS BAD IN LAW FOR THE REASON THAT THE ASSESSEE HAD PROVED THE IDENTITY AND CREDITWORTHINESS OF THE SHARE APPLICANTS WHICH WERE ONLY TWO COMPANIES I.E., M/S. EKDANT TIE UP PVT. LTD. & M/S. GOOD VALUE VINIMAY PVT. LTD. HE ARGUED THAT THE SHARE APPLICATIONS WERE MADE BY WAY OF ACCOUNT PAYEE CHEQUES AND THAT THE IDENTITIES OF THE COMPANIES WERE NOT IN DOUBT AND THAT THE COMPANY M/S. EKDANT TIE UP PVT. LTD., WAS HAVING PAID UP CAPITAL WITH FREE RESERVES AND SURPLUS OF RS.21,59,97,329/- AS ON 31.03.2011 AND THAT TH SHARE CAPITAL AND RESERVES WAS RS.26,31,22,160/- IN THE CASE OF M/S. GOOD VALUE VINIMAY PVT. LTD. HE VEHEMENTLY CONTENDED THAT THERE IS NO ALLEGATION BY THE ASSESSING OFFICER THAT THESE SHARE APPLICANT COMPANIES HAD DEPOSITED CASH IN THEIR BANK ACCOUNT, PRIOR TO MAKING PAYMENT THROUGH BANKING CHANNELS FOR SUBSCRIPTION OF SHARES IN THE ASSESSEE COMPANY. HE SUBMITTED THAT THE SOURCE OF SOURCE WAS EXPLAINED. HE RELIED ON A NUMBER OF CASE-LAW IN SUPPORT OF HIS CONTENTIONS THAT NO ADDITION CAN BE MADE U/S 68 OF THE ACT, UNDER THESE CIRCUMSTANCES. WE WOULD BE DISCUSSING THESE CASE-LAW AS AND WHEN NECESSARY. 5. THE LD. D/R, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSING OFFICER HAD RELIED ON THE REPORT OF THE INVESTIGATION WING. HE SUBMITTED THAT SHRI BHAGABAN DAS AGARWAL, IN A STATEMENT HAD CONFIRMED THAT THE TWO ALLOTTEE COMPANIES WERE BEING RUN BY HIS FRONT MEN, ONE BEING THE DIRECTOR OF THE SAID ALLOTTEE COMPANY NAMED SHRI SANTANU BOSE. WHILE POINTING OUT THAT SHRI SANTANU BOSE HAS RETRACTED FROM HIS STATEMENT, HE 3 I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD SUBMITTED THAT THESE ARE FRONT PAPER COMPANIES OF SHRI BHAGABAN DAS AGARWAL. HE RELIED ON THE ASSESSMENT ORDER AND THE EVIDENCE GATHERED THEREIN IN SUPPORT OF THE LD. CIT(A). 5.1. ON THE REVENUES APPEAL, THE LD. D/R SUBMITTED THAT THE LD. CIT(A) WAS WRONG IN GRANTING RELIEF TO THE ASSESSEE. HE SUBMITTED THAT AN AMOUNT OF RS.1,75,969.40/- AND RS.2,06,84,187.20/- WERE FOUND TO HAVE BEEN DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE COMPANY ON 24/08.2012 AND 05/10/2012 RESPECTIVELY AND WHEN THE ASSESSEE WAS ASKED TO EXPLAIN THE SAID DEPOSITS, HE WAS NOT ABLE TO EXPLAIN THE SAME PROPERLY. HE ALSO POINTED OUT THAT THE DIT (INV.), KOLKATA HAD VIDE LETTER DT. 04/12/2015, HAD PROVIDED INFORMATION THAT SHRI BHAGABAN DAS AGARWAL, DIRECTOR OF M/S. SINCERE COMMODITIES AND DERIVATIVES PVT. LTD., WAS A KNOW ENTRY OPERATOR OF KOLKATA WHO HAD ACCEPTED ON OATH THE FACT OF PROVIDING BOGUS ENTRIES TO DIFFERENT COMPANIES. HE RELIED ON PARA 13 OF THE ASSESSMENT ORDER. HE ARGUED THAT THE LD. CIT(A) WAS WRONG IN CONSIDERING BOTH THE MONEY GIVEN AND MONEY RECEIVED BACK AND THEREAFTER GIVING RELIEF TO THE ASSESSEE. 6. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE LD. CIT(A) HAS EXAMINED THE FACTS AND COME TO A CONCLUSION THAT THE ASSESSEE HAD GIVEN MONEY TO THIS COMPANY M/S. SINCERE COMMODITIES AND DERIVATIVES PVT. LTD. AND ALSO RECEIVED BACK MONEY AND THE AMOUNT OF RS.2,22,60,386/- WAS AN AGGREGATE PROGRESSIVE RECEIPT AND RS.2,07,74,271/-, WAS AN AGGREGATE OF THE PROGRESSIVE PAYMENTS. HE RELIED ON THE FINDINGS OF THE LD. CIT(A) FROM PAGE 8 TO 10 OF HIS ORDER AND SUBMITS THAT THE SAME BE UPHELD. 7. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS:- 8. WE FIRST TAKE UP THE ASSESSEES APPEAL IN I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14. 9. THE SHARE APPLICATION IN QUESTION IN THIS CASE WAS RECEIVED FROM TWO ENTITIES M/S. EKDANT TIE UP PVT. LTD. & M/S. GOOD VALUE VINIMAY PVT. LTD.. ONE SHRI BHAGABAN DAS AGARWAL HAD STATED BEFORE THE INVESTIGATION WING OFFICERS THAT THESE COMPANIES 4 I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD WERE RUN BY HIS FRONT MAN SHRI SANTANU BOSE. THIS STATEMENT WAS RETRACTED BEFORE THE ASSESSING OFFICER. WHEN SHRI SANTANU BOSE WAS QUESTIONED, HE DECLINED TO DEPOSE ON OATH. THE COPIES OF STATEMENT RECORDED WERE NOT FURNISHED TO THE ASSESSEE AND THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY TO CROSS-EXAMINING THE PERSONS WHOSE STATEMENTS WERE USED AGAINST THE ASSESSEE FOR THE PURPOSE OF THE ADDITION. THE ASSESSEE IN THIS CASE HAS FURNISHED CONFIRMATIONS, IDENTITY OF THE COMPANIES, THE MODE OF PAYMENT, THE SOURCE OF SOURCE OF FUNDS ETC. THE LD. ASSESSING OFFICER HAS ONLY RELIED UPON THE REPORT OF THE INVESTIGATION WING AND THE COPIES OF THE RETRACTED STATEMENTS FOR MAKING THIS ADDITION. THE COPY OF THE STATEMENTS RELIED UPON, ARE NOT PLACED ON RECORD. 9.1. IN OUR VIEW THIS ADDITION CANNOT BE SUSTAINED UNDER THESE CIRCUMSTANCES. WE ARE OF THE VIEW THAT THE ISSUE HAS TO BE SET ASIDE TO THE ASSESSING OFFICER WITH A DIRECTION TO FOLLOW THE PRINCIPLES OF NATURAL JUSTICE AND CONFRONT THE ASSESSEE WITH ALL THE MATERIAL AND STATEMENTS RELIED UPON BY HIM FOR MAKING THE ADDITION. THIS BENCH OF THE TRIBUNAL IN THE CASE OF SRIRAM TIE UP PVT. LTD. VS ITO IN I.T.A. NO. 1104/KOL/2016, ASSESSMENT YEAR: 2009-10 ORDER DT. MARCH 21, 2018 AT PARA 6 AND 7 HELD AS FOLLOWS: 6. IN THE CASE OF M/S. SUKANYA MERCHANDISE PVT. LTD. VS ITO (ITA 291/KOL/2016 DATED 15.12.2017) CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE, A SIMILAR VIEW HAS BEEN TAKEN BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL AND THE SIMILAR ISSUE RELATING TO THE ADDITION MADE UNDER SECTION 68 ON ACCOUNT OF SHARE CAPITAL CONTRIBUTION BY TREATING THE SAME AS UNEXPLAINED CASH CREDITS IS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE A.O. IN ALMOST SIMILAR SITUATION AFTER RECORDING ITS OBSERVATIONS / FINDINGS AS UNDER: WE NOTE THAT THE AO PURSUANT TO THE ORDER OF LD. CIT HAD TAKEN NOTE OF THE DIRECTIONS OF THE LD. CIT AND ISSUED NOTICE U/S. 142(1) DATED 16.08.2013 AND HAS ACKNOWLEDGED THAT THE ASSESSEE HAD FURNISHED THE COPY OF FINAL ACCOUNT, I. T. ACKNOWLEDGEMENT, BANK STATEMENT FOR THE RELEVANT PERIOD EVIDENCING THE RECEIPT OF SHARE APPLICATION MONEY FROM THE SHARE APPLICANTS. THEREAFTER, THE AO MAKES CERTAIN INFERENCES BASED ON THE LIST OF SHAREHOLDERS AND TAKING NOTE OF THE BANK STATEMENT FURNISHED BY THE ASSESSEE. WE NOTE THAT AFTER THE INITIAL NOTICE DATED 16.08.2013, THEREAFTER THE AO HAD ISSUED THE NOTICE ON 26.02.2014 WHICH HAS BEEN REPRODUCED AT PAGE 3 OF THE REASSESSMENT ORDER, WHEREIN AO REQUIRED THE DIRECTORS OF THE ASSESSEE COMPANY TO BE PRESENT BEFORE HIM ON 06.03.2014. HOWEVER, ACCORDING TO THE LD. AR, THE ASSESSEE RECEIVED THE NOTICE ONLY ON 07.03.2014 AND THEREAFTER, THE ASSESSEE REQUESTED THE AO TO PROVIDE ANOTHER OPPORTUNITY OF HEARING VIDE ITS LETTER DATED 20.03.2014. THEREAFTER, THE AO FIXED THE DATE OF HEARING ON 12.03.2014 VIDE NOTICE DATED 10.03.2014. SO, ACCORDING TO THE ASSESSEE COMPANY SINCE THE DIRECTORS WERE NOT IN STATION TILL 23.03.2014, THE LD. AR HAD REQUESTED FOR ADJOURNMENT TILL THAT TIME. THOUGH THE AO HAS STATED THAT HE HAS ISSUED SUMMONS ON 24.03.2014 TO THE ASSESSEE COMPANY TO PRODUCE THE DIRECTORS OF THE COMPANY BEFORE HIM ON 26.03.2014, THE ASSESSEE COMPANY CONTENDED THAT IT HAS NOT RECEIVED THE SAID SUMMON AND, THEREFORE, COULD NOT MAKE THE PERSONAL APPEARANCE. THE AO HAS DRAWN ADVERSE CONCLUSION 5 I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD BASICALLY BECAUSE OF NON-APPEARANCE OF THE DIRECTORS OF THE ASSESSEE COMPANY AND THAT OF THE SHAREHOLDER COMPANIES. WE NOTE THAT INITIALLY THE AO STARTED THE ENQUIRY ON 16.08.2013 WHICH WAS COMPLIED BY THE ASSESSEE BY SUBMITTING DOCUMENTS WHICH HAS BEEN ACKNOWLEDGED BY THE AO. THEREAFTER, THE ENQUIRY WAS STARTED ONLY AT THE FAG END OF FEBRUARY 2014 AND THE ASSESSEE COMPANY HAD INFORMED THE AO THAT THEIR DIRECTORS WERE OUT OF STATION TILL 23.03.2014. IN THE LIGHT OF THE AFORESAID FACTS, WE ARE OF THE OPINION THAT THE ASSESSEE DID NOT GET FAIR OPPORTUNITY TO PRESENT THE EVIDENCES BEFORE THE AO SO, THERE WAS A LACK OF OPPORTUNITY AS AFORESAID, THEREFORE, IT HAS TO GO BACK TO AO. 8. WE ALSO NOTE THAT LD. CIT WHILE SETTING ASIDE THE ORDER OF THE AO WHICH WAS PASSED U/S. 147/143(3) OF THE ACT, THE LD. CIT GAVE CERTAIN GUIDELINES TO FOLLOW FOR CONDUCTING DEEP INVESTIGATION. WE ALSO NOTE THAT SIMILARLY PLACED ASSESSEES HAD CHALLENGED THE EXERCISE OF REVISIONAL JURISDICTION U/S. 263 OF THE ACT BEFORE THIS TRIBUNAL IN THOSE CASES ONE OF IT OF SUBHA LAKSHMI VANIJYA PVT. LTD. VS. CIT IN ITA NO. 1104/KOL/2014 DATED 30.07.2015, WHEREIN THE TRIBUNAL WAS PLEASED TO UPHOLD THE ORDER PASSED BY THE LD. CIT PASSED U/S. 263 OF THE ACT, WHICH WE LEARN TO HAVE BEEN CONFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT AND THE SLP PREFERRED AGAINST THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT. THEREFORE, SIMILAR ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD. WE NOTE THAT THE AO WHILE GIVING EFFECT TO THE CITS 263 ORDER HAS NOTED THAT THE ASSESSEE COMPANY HAS IN FACT FURNISHED THE DOCUMENTS SOUGHT BY HIM TO HIS NOTICE U/S. 142(1) OF THE ACT. HOWEVER, THE AO TOOK THE ADVERSE VIEW AGAINST THE ASSESSEE ON THE PLEA THAT THE DIRECTORS OF THE ASSESSEE COMPANY AND SHARE SUBSCRIBING COMPANIES HAD NOT APPEARED BEFORE HIM ON 26.03.2014 AND T AFTER TAKING NOTE THAT NONE APPEARED ON 26.03.2014 CONCLUDED ON THE SAME DAY 26.03.2014 THAT ENTIRE AMOUNT OF SHARE APPLICATION MONEY RECEIVED ALONG WITH PREMIUM AMOUNTING TO RS.8,06,00,000/- WHICH HAS REMAINED UNEXPLAINED AND ADDED TO THE INCOME OF THE ASSESSEE. WE ALSO NOTE THAT THE LD. CIT AFTER LOOKING INTO THE PERNICIOUS PRACTICE OF CONVERTING BLACK MONEY INTO WHITE MONEY HAS GIVEN THE GUIDELINES TO AO AS TO HOW THE INVESTIGATION SHOULD BE CONDUCTED TO FIND OUT THE SOURCE OF 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 SUPREME 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 CREDITWORTHINESS OF THE SHARE SUBSCRIBERS. WE NOTE THAT THE HONBLE SUPREME COURT IN 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 REVERSED THE HONBLE HIGH COURT, TRIBUNAL AND CIT(A)S ORDERS AND REMANDED THE MATTER BACK TO AO FOR FRESH ASSESSMENT. SO, SINCE THERE WAS LACK OF OPPORTUNITY AS AFORESTATED IT HAS TO GO BACK TO AO. WE ALSO NOTE THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. JANSAMPARK ADVERTISING & MARKETING PVT. LTD. IN ITA NO. 525/2014 DATED 11.03.2015 WHEREIN AFTER NOTICING INADEQUATE ENQUIRY BY AUTHORITIES BELOW HAVE 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 INFERENCE, OR FORM THE FACT THAT THE TRANSACTIONS WERE THROUGH BANKING CHANNELS, IT DOES NOT NECESSARILY 6 I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD 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 OBLIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. BUT CIT(APPEALS), HAVING NOTICED WANT OF PROPER INQUIRY, COULD NOT HAVE CLOSED THE CHAPTER SIMPLY BY ALLOWING THE APPEAL AND DELETING THE ADDITIONS MADE. IT WAS ALSO THE OBLIGATION OF THE FIRST 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 STATEMENTS REVEAL UNIFORM PATTERN OF CASH DEPOSITS OF EQUAL AMOUNTS IN THE RESPECTIVE ACCOUNTS PRECEDING THE TRANSACTIONS IN QUESTION. THIS NECESSITATED A DETAILED SCRUTINY OF THE MATERIAL SUBMITTED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION148 ISSUED BY THE AO, AS ALSO THE MATERIAL SUBMITTED AT THE STAGE OF APPEALS, IF DEEMED PROPER BY WAY OF MAKING OR CAUSING TO BE MADE A 'FURTHER INQUIRY IN EXERCISE OF THE POWER UNDER SECTION 250(4). HIS APPROACH NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDER OF ITAT, AND CONSEQUENTLY THAT OF CIT(APPEALS), CANNOT BE APPROVED OR UPHELD.' 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 COURTS 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 TO DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. WE, THEREFORE, CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE IN DISPUTE AND RESTORE THE MATTER TO THE FILE OF THE A.O. TO DECIDE THE SAME AFRESH AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD AND AFTER TAKING INTO CONSIDERATION THE ENTIRE EVIDENCE ALREADY AVAILABLE ON RECORD AS WELL AS OTHER DOCUMENTARY EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE IN SUPPORT OF ITS CASE ON THE ISSUE. 10. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE ARE OF THE CONSIDERED OPINION THAT THIS ISSUE SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. THE ASSESSING OFFICER SHOULD CONFRONT THE ASSESSEE WITH THE MATERIAL BEING USED AGAINST IT AND ALSO PROVIDE OPPORTUNITY OF CROSS-EXAMINATION. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 11. COMING TO THE REVENUES APPEAL IN I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013- 14, THE FACTS RECORDED BY THE LD. CIT(A) ARE THAT THE ASSESSEE HAD GIVEN MONEY TO M/S. SINCERE COMMODITIES AND DERIVATIVES PVT. LTD. AND ALSO RECEIVED MONEY BACK FROM THEM. AT PAGES 8, 9 & 10 OF HIS ORDER, HE HELD AS FOLLOWS:- 7 I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD 8 I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD 9 I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD 10 I.T.A. NO. 1353/KOL/2017 ASSESSMENT YEAR: 2013-14 I.T.A. NO. 1198/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. AMBEY INFRATECH PVT. LTD 11.1. THESE FACTUAL FINDINGS OF THE LD. CIT(A), COULD NOT BE CONTROVERTED BY THE LD. D/R. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) ON THESE FACTS AND THUS, WE UPHOLD THE SAME. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. 12. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED AND APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. KOLKATA, THE 10 TH DAY OF MAY, 2019. SD/- SD/- [S.S. VISWANETHRA RAVI] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 10.05.2019 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. M/S. AMBEY INFRATECH PVT. LTD GROUND FLOOR AMBEY HOUSE NEW TOWN ROAD KOLKATA 700 157 2. INCOME TAX OFFICER, WARD-14(1), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES