M/s Farista Vanijya Pvt. Ltd., Kolkata V. I.T.O.,Ward-2(2), Kolkata

ITA 142/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9229 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 10-08-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 03-02-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: JOYDEEP CHAKRABORTY
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 143(3); 13; 22; 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI J. S. REDDY, HONBLE ACCOUNTANT MEMBE R & SMT. MADHUMITA ROY, HONBLE JUDICIAL MEMBER (THROUGH VIRTUAL COURT) ./ITA NO.142/KOL/2020 ( / ASSESSMENT YEAR: 2012-13) M/S FARISTA VANIJYA PVT. LTD. DL-205, SECTOR-II, GROUND FLOOR, SALT LAKE CITY, KOLKATA -700091. VS. ITO, WARD-2(2), KOLKATA ./ ./PAN/GIR NO.: AABCF 4539 K (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI SOUMITRA CHOUDHURY, ADVOCATE & SHRI JOYDEEP CHAKRABORTY, ADV. RESPONDENT BY : SHRI SUPRIYO PAL, ADDL. CIT / DATE OF HEARING : 10/08/2020 /DATE OF PRONOUNCEMENT : 12/08/2020 / O R D E R PER SMT. MADHUMITA ROY, JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 03.12.2019 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS)-6, KOLKATA ARISING OUT OF ORDER DATED 10.03.2015 ISSU ED BY THE ITO, WARD-2(2), KOLKATA UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WHEREBY AND WHEREUNDER ADDITION TO T HE TUNE OF RS. 12,50,000/- ON THE GROUND OF UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT FOR ASSESSMENT YEAR 2012- 13 HAS BEEN CHALLENGED. M/S FARISTA VANIJYA PVT. LTD. ITA NO. 142/KOL/2020 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 2. THE BRIEF FACTS LEADING THE CASE IS THIS THAT TH E ASSESSEE IS A MANUFACTURER OF SALINE WATER ELECTRONICALLY FILED ITS RETURN OF INC OME FOR A.Y. 2012-13 ON 28.09.2012. DURING THE COURSE OF ASSESSMENT PROCEED INGS, IT WAS FOUND THAT DURING THE PREVIOUS YEAR THE ASSESSEE COMPANY RECEIVED LAR GE SHARE APPLICATION MONEY ALONG WITH PREMIUM. WHEREUPON SUMMONS U/S 131 WAS S ERVED ON THE DIRECTOR OF THE ASSESSEE COMPANY WITH A REQUEST TO EXPLAIN THE REASON WITH COMPLETE DETAILS OF SHARE PREMIUM MONEY RECEIPT. SINCE NO COMPLIANCE WA S MADE ON BEHALF OF THE ASSESSEE, ADDITION OF RS. 1,66,50,000/-U/S 68 OF T HE ACT AS UNEXPLAINED CASH CREDIT WAS MADE. IN APPEAL BEFORE THE LD. CIT(A), IT WAS SUBMITTED O N BEHALF OF THE ASSESSEE THAT THE APPELLANT DURING THE A.Y. 2012-13 ONLY A P ART OF SHARE CAPITAL AND PREMIUM WAS RECEIVED AND THE ENTIRE RS. 1,66,50,000 /- DOES NOT PERTAIN TO A.Y. 2012-13. THE AMOUNT OF RS. 1,54,00,000/- RECEIVED D URING THE A.Y. 2011-12 CANNOT BE CONSIDERED FOR ADDITION DURING THE A.Y. 2 012-13 AS ALSO THE CASE MADE OUT BY THE ASSESSEE. HOWEVER, THE AMOUNT OF RS. 12, 50,000/- RECEIVED ON 05.04.2011 FROM M/S VICKEY FINCOM PVT. LTD AS SHARE APPLICATION AND PREMIUM PERTAINING TO A.Y. 2012-13 HAS NOT BEEN ALLOWED BY THE FIRST APPELLATE AUTHORITY AND THE ADDITION TO THAT AMOUNT WAS CONFIRMED. 3. AT THE TIME OF HEARING OF THE INSTANT APPEAL, TH E LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE SHARE CAPITAL AND PREM IUM OF RS. 1,54,00,000/- RECEIVED DURING THE A.Y. 2011-12 THOUGH INITIALLY A DDED U/S 68 OF THE ACT BY THE LD. ASSESSING OFFICER, SUBSEQUENTLY, THE SAME WAS D ELETED BY THE LD. CIT(A) UPON WHICH NO APPEAL WAS PREFERRED BY THE REVENUE. IN TH AT EVENT, THE ADDITION TO THE TUNE OF RS. 12,50,000/- TOWARDS THE SHARE CAPITAL A ND PREMIUM RECEIVED FOR THE YEAR UNDER CONSIDERATION WHICH IS FAR LESS THAN RS. 1,54,00,000/-, CANNOT BE ADDED AGAINST THE INCOME OF THE ASSESSEE U/S 68 OF THE AC T. HE, THEREFORE, PRAYS FOR SETTING ASIDE THE ISSUE TO THE FILE OF THE LD. ASSE SSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE. SUCH CONTENTION MADE BY THE LD. A.R. WAS, HOWEVER, NOT OBJECTED BY THE LD. D.R WITH ALL HIS FAIRNESS. M/S FARISTA VANIJYA PVT. LTD. ITA NO. 142/KOL/2020 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 4. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE SUBMISSIONS MADE BY THE RESPECTIVE PARTIES, WE ARE OF THE CONS IDERED OPINION TO SET ASIDE THE ISSUE TO THE FILE OF THE LD. ASSESSING OFFICER TO V ERIFY THE CASE OF THE ASSESSEE, UPON AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND UPON TAKING INTO CONSIDERATION THE EVIDENCE ON RECORD OR ANY OTHER E VIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF HEARING OF THE M ATTER AND TO PASS A REASONED ORDER IN ACCORDANCE WITH LAW. WE THEREFORE PASS ORD ER ACCORDINGLY. 5. IN THE RESULT, THE ASSESSES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 12.08.2020 SD/- (J. SUDHAKAR REDDY) / ACCOUNTANT MEMBER SD/- (MADHUMITA ROY) / JUDICIAL MEMBER /KOLKATA; / DATE: 12/08/2020 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. M/S FARISTA VANIJYA PVT. LTD. 2. ITO, WARD-2(2), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATABENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES