M/s. Bengal Shubham Avasan Private Limited , Kolkata V. ITO, Ward - 9(2), Kolkata, Kolkata

ITA 1389/KOL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7289 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: S M SURANA; AHBISHEK BANSAL
• Keywords: Unexplained cash credit; Set aside
• Section: 143(3); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (A), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHRI S.S. GODARA, JM] I.T.A. NO. 1389/KOL/2017 ASSESSMENT YEAR: 2012-13 M/S. BENGAL SHUBHAM AVASAN PVT. LTD.........................................APPELLANT P.S. ARCADE, 1 ST FLOOR, 11, SUDDER STREET, KOLKATA 700 016. [PAN: AADCB 0885 E] VS ITO, WARD 9(2), KOLKATA...............................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI S.M. SURANA, ADV. & SHRI AHBISHEK BANSAL, FCA APPEARING ON BEHALF OF THE ASSESSEE. SMT. RANU BISWAS, SR. DR, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : SEPTEMBER 25, 2019 DATE OF PRONOUNCING THE ORDER : OCTOBER 23, 2019 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ) THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 16, KOLKATA DATED 17.02.2017 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS. 1,12,00,000/- MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM BY TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S 68 OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 28.01.2013 DECLARING A TOTAL INCOME AT NIL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE COMPANY WAS REQUIRED BY THE AO TO EXPLAIN THE SHARE CAPITAL AND SHARE PREMIUM AMOUNT AGGREGATING TO RS. 1,12,00,000/- RECEIVED DURING THE YEAR UNDER CONSIDERATION IN TERMS OF SECTION 68 BY ESTABLISHING THE IDENTITY AND CREDITWORTHINESS OF THE 2 I.T.A. NO. 1389/KOL/2017 ASSESSMENT YEAR: 2012-13 M/S. BENGAL SHUBHAM AVASAN PVT. LTD. CONCERNED SHARE SUBSCRIBERS AS WELL AS GENUINENESS OF THE RELEVANT TRANSACTIONS. AS OBSERVED BY THE AO IN THE ASSESSMENT ORDER, THE ASSESSEE HOWEVER FAILED TO COMPLY WITH THE SAID REQUIREMENT. THE SUMMONS ISSUED U/S 131 TO THE ASSESSEE AS WELL AS CONCERNED SHARE SUBSCRIBERS ALSO REMAINED UNCOMPLIED WITH. THE AMOUNT OF RS. 1,12,00,000/- RECEIVED BY THE ASSESSEE ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM ACCORDINGLY WAS TREATED BY THE AO AS UNEXPLAINED CASH CREDIT AND THE SAME WAS ADDED BY HIM TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 27.03.2015. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) CHALLENGING THE ADDITION MADE BY THE AO U/S 68. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), VARIOUS DOCUMENTS WERE FILED BY THE ASSESSEE COMPANY IN SUPPORT OF ITS CASE TO SHOW THAT ALL THE SHARE SUBSCRIBERS WERE REGULARLY ASSESSED TO INCOME. COPIES OF THEIR BANK ACCOUNTS WERE ALSO FILED BY THE ASSESSEE. THE LD. CIT(A) DID NOT FIND MERIT IN THE CASE OF THE ASSESSEE AND KEEPING IN VIEW THE FAILURE OF THE ASSESSEE TO DISCHARGE THE ONUS THAT LAY ON IT U/S 68 AND BY RELYING ON THE DECISION OF THE HONBLE KOLKATA HIGH COURT IN THE CASE OF RAJMANDIR ESTATES PVT. LTD. VS PCIT, KOLKATA, HE PROCEEDED TO CONFIRM THE ADDITION MADE BY THE AO U/S 68. THE APPEAL OF THE ASSESSEE THUS WAS DISMISSED BY THE LD. CIT AND AGGRIEVED BY THE SAME, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LEARNED 3 I.T.A. NO. 1389/KOL/2017 ASSESSMENT YEAR: 2012-13 M/S. BENGAL SHUBHAM AVASAN PVT. LTD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NO PROPER AND SUFFICIENT OPPORTUNITY WAS GIVEN EITHER BY THE AO OR BY THE LD. CIT(A) TO THE ASSESSEE TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE CONCERNED SHARE SUBSCRIBERS AS WELL AS THE GENUINENESS OF THE RELEVANT TRANSACTIONS. HE HAS SUBMITTED THAT THE RELEVANT DOCUMENTARY EVIDENCE IN THE FORM OF I.T. RETURNS OF THE CONCERNED SHARE SUBSCRIBERS AS WELL AS THEIR BANK STATEMENTS WERE FILED BY THE ASSESSEE BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A) BUT STILL THE AMOUNT OF SHARE CAPITAL AND SHARE PREMIUM IN QUESTION RECEIVED FROM THEM WAS TREATED BY THEM AS UNEXPLAINED CASH CREDIT U/S 68 APPARENTLY FOR THE REASON THAT THE SHARE SUBSCRIBERS DID NOT APPEAR BEFORE THE ASSESSING OFFICER FOR VERIFICATION IN RESPONSE TO SUMMONS ISSUED U/S 131. HE HAS SUBMITTED THAT THE ASSESSEE IS IN A POSITION TO PRODUCE THE SAID SHARE SUBSCRIBERS FOR VERIFICATION BEFORE THE AO ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE AND URGED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO DO SO BY SENDING THE MATTER BACK TO THE AO. KEEPING IN VIEW ALL THE FACTS OF THE CASE, WE ARE INCLINED TO ACCEDE TO THIS REQUEST OF THE LEARNED COUNSEL FOR THE ASSESSEE. EVEN THE LEARNED DR HAS NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE AO FOR VERIFICATION. THE IMPUGNED ORDER OF THE LD. CIT(A) ON THE ISSUE IS ACCORDINGLY SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH AFTER GIVING THE ASSESSEE ONE MORE OPPORTUNITY TO EXPLAIN THE RELEVANT CASH CREDITS REPRESENTING SHARE CAPITAL AND SHARE PREMIUM AMOUNT IN TERMS OF SECTION 68 BY PRODUCING THE CONCERNED SHARE SUBSCRIBERS FOR VERIFICATION / EXAMINATION ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE. 4 I.T.A. NO. 1389/KOL/2017 ASSESSMENT YEAR: 2012-13 M/S. BENGAL SHUBHAM AVASAN PVT. LTD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD OCTOBER, 2019. SD/- SD/- (S.S. GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 23/10/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. BENGAL SHUBHAM AVASAN PVT. LTD., P.S. ARCADE, 1 ST FLOOR, 11, SUDDER STREET, KOLKATA 700 016. 2. ITO, WARD 9(2), P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA