M/s Thamarpally Mercantiles (P) Ltd., Kolkata V. I.T.O, Wd -8(3), Kolkata, Kolkata

ITA 1529/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100263 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 24-05-2013
• Court: TRIBUNAL
• Department Lawyers: AMITAV BHATTACHARJEE
• Assessee Lawyers: VARSHA JALAN
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC, KOLKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM] ITA NO.1529/KOL/2013 ASSESSMENT YEAR : 2002-03 M/S. THAMARPALLY MERCANTILES VERSUS- I.T.O., WARD -8(3), (P) LTD., KOLKATA. KOLKATA (PAN:AABCT 0675 L) (APPELLANT ) (RESPONDENT) FOR THE APPELLANT : SMT. VARSHA JALAN, ADVOCATE FOR THE RESPONDENT : SHRI AMITAV BHATTACHARJEE, J CIT, SR.DR DATE OF HEARING : 30.11.2015. DATE OF PRONOUNCEMENT : 09.12.2015. ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 19.03.2013 OF CIT(A)-VIII, KOLKATA RELATING TO A.Y.2002-03. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ AS FOLLOWS :- 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF I NCOME TAX (APPEALS)-VIII, KOLKATA CONFIRMING THE ADDITIONS MADE BY THE LEARNED ASSESS ING OFFICER U/S 68 OF THE INCOME TAX ACT, 1961 OF RS.3,50,000/- RECEIVED BY THE APPE LLANT COMPANY ON ACCOUNT OF SHARE APPLICATION MONEY IS CONTRARY TO THE LAW AND FACTS OF THE CASE. 2. THAT THE APPELLANT CRAVES LEAVE TO ADD/OR AMEND ANY GROUNDS OF THIS APPEAL. 3. THE ASSESSEE IS A COMPANY. DURING THE PREVIOUS Y EAR THE ASSESSEE WAS IN RECEIPT OF SHARE APPLICATION MONEY OF RS.3,45,000/- . ACCORDING TO THE AO NOTICES U/S 133(6) OF THE ACT WERE ISSUED TO THE SHARE APPLICAN TS AND WAS DULY SERVED ON THEM BUT NO REPLY WAS RECEIVED FROM ANY OF THE PERSONS. THE AO ISSUED A SHOW CAUSE NOTICE DATED 08.12.2008 POINTING OUT TO THE ASSESSEE THAT NO REPLIES WERE RECEIVED FROM THE SHARE APPLICANTS AND THEREFORE AO PROPOSED TO MAKE ADDITION U/S 68 OF THE ACT. THE HEARING BEFORE THE AO WAS FIXED ON 15.12.2008 FOR A SSESSEES COMPLIANCE. THE AO ITA NO.1529/KOL/2013 M/S. THAMARPALLY MERCANTILES (P)LTD. A.YR.2002-03 2 PASSED ORDER ON 16.12.2008 OBSERVING THAT NONE APPE ARED ON BEHALF OF THE ASSESSEE AND THEREFORE RECEIPT OF SHARE APPLICATION MONEY WA S TREATED AS UNEXPLAINED AND ADDITION WAS MADE TO THE TOTAL INCOME OF THE ASSESS EE BY THE AO. 4. BEFORE CIT(A) THE ASSESSEE POINTED OUT THAT ON 1 9.12.2008 THE ASSESSEE HAD FILED ALL THE REQUIRED DETAILS AS WERE CALLED FOR I N THE NOTICES U/S 133(6) OF THE ACT BUT EVEN BEFORE THE SAID DATE THE AO HAD PASSED THE IMP UGNED ASSESSMENT ORDER ON 16.12.2008. THE ASSESSEE REQUESTED THE CIT(A) TO CO NSIDER THE EVIDENCES FILED BEFORE THE AO. THE CIT(A) WAS OF THE VIEW THAT SINCE THE A SSESSEE FAILED TO COMPLY WITH THE REQUIREMENTS OF FILING THE REQUIRED DETAILS BEFORE THE AO BY 15.12.2008. THE ORDER OF THE AO HAD TO BE UPHELD. 5. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. I HAVE HEARD THE RIVAL SUBMISSIONS. IN MY VIEW T HAT THE ORDER OF CIT(A) CANNOT BE SUSTAINED. IT IS CLEAR FROM THE ORDER OF AO AND CIT(A) AND THE CIRCUMSTANCES OF THE CASE THAT THE ASSESSEE DID NOT HAVE ADEQUATE OPPORT UNITY OF COMPLYING WITH THE REQUIREMENTS AS WAS CALLED FOR BY AO. THE ASSESSEE HAD NOT FILED THE REQUIRED DETAILS ON 19.12.2008 JUST THREE DAYS AFTER PASSING OF THE ASSESSMENT ORDER BY AO. IN MY VIEW THE CIT(A) IN EXERCISING HIS POWERS WHICH ARE CO-TE RMINUS WITH THAT OF THE AO OUGHT TO HAVE EXAMINED THE EVIDENCES FILED BY THE ASSESSE E BEFORE CONFIRMING THE ORDER OF AO TREATING THE RECEIPT OF SHARE APPLICATION MONEY BY THE ASSESSEE AS UNEXPLAINED. I, THEREFORE, SET ASIDE THE ORDER OF CIT(A) AND REMAND THE ISSUE TO THE AO FOR FRESH CONSIDERATION. THE AO WILL CONSIDER THE EVIDENCES F ILED BY THE ASSESSEE AND ALSO ALLOW OPPORTUNITY TO THE ASSESSEE TO PRODUCE SUCH OTHER E VIDENCE AS IS NECESSARY TO EXPLAIN THE RECEIPT OF SHARE APPLICATION MONEY AND THEREAFT ER DECIDE THE ISSUE IN ACCORDANCE WITH LAW. ITA NO.1529/KOL/2013 M/S. THAMARPALLY MERCANTILES (P)LTD. A.YR.2002-03 3 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 09.12.2015. SD/- [N.V.VASUDEVAN] JUDICIAL MEMBER DATE: 09.12.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. M/S. THAMARPALLY MERCANTILES (P)LTD., 4/1, MIDDL ETON STREET, KOLKATA- 700071. 2 THE I.T.O., WARD-8(3), KOLKATA. 3. THE CIT-III, KOLKATA. 4. THE CIT(A)-VIII, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES