Maxway Trading Pvt. Ltd., Kolkata V. I.T.O.,Ward-13(3), Kolkata

ITA 1555/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8539 (ITAT-KOLKATA)
• Duration Of Justice: 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 26-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit; Set aside
• Section: 143(3); 68

Judgement Text

ITA NO. 1555/KOL/2019 ASSESSMENT YEAR: 2012-2013 MAXWAY TRADING PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 1555/KOL/2019 ASSESSMENT YEAR: 2012-2013 MAXWAY TRADING PVT. LIMITED,....................... .........................APPELLANT 1, SARDAR SHANKAR ROAD, KOLKATA-700 029 [PAN: AAFCM 9871 M] -VS.- INCOME TAX OFFICER,................................ .................................RESPONDENT WARD-13(3), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-700 107 APPEARANCES BY: SHRI MIRAJ D. SHAH, A.R., FOR THE APPELLANT SHRI ROBIN CHOUDHURY, ADDITIONAL CIT, D.R , FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : JULY 12, 2019 DATE OF PRONOUNCING THE ORDER : JULY 12, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKATA DAT ED 05.03.2019, WHEREBY HE CONFIRMED THE ADDITION OF RS.40,00,000/- MADE BY THE ASSESSING OFFICER UNDER SECTION 68 BY TREATING THE SHARE CAPITAL AND SHARE PREMIUM RECEIVED BY THE ASSESSEE DURING THE YEAR UN DER CONSIDERATION AS UNEXPLAINED CASH CREDIT. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF TRADING IN SHARES & INVESTMENT. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 12. 12.2013 DECLARING TOTAL ITA NO. 1555/KOL/2019 ASSESSMENT YEAR: 2012-2013 MAXWAY TRADING PVT. LIMITED 2 INCOME OF RS.2,952/-. DURING THE COURSE OF ASSESSME NT PROCEEDINGS, THE ASSESSEE-COMPANY WAS REQUIRED BY THE ASSESSING OFFI CER TO PRODUCE THE DIRECTORS OF THE ALLOTTEE COMPANIES FROM WHOM THE A MOUNT OF SHARE CAPITAL AND SHARE PREMIUM AGGREGATING TO RS.40,00,0 00/- WAS RECEIVED DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE-C OMPANY, HOWEVER, FAILED TO COMPLY WITH THE SAID REQUIREMENT OF THE A SSESSING OFFICER AND KEEPING IN VIEW THE SAME, THE AMOUNT OF SHARE CAPIT AL AND SHARE PREMIUM RECEIVED DURING THE YEAR UNDER CONSIDERATION AGGREG ATING TO RS.40,00,000/- WAS TREATED BY THE ASSESSING OFFICER AS UNEXPLAINED CASH CREDIT. HE ACCORDINGLY MADE AN ADDITION OF RS.40,00 ,000/- UNDER SECTION 68 TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSES SMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 30.03.2015. 3. ON APPEAL, THE LD. CIT(APPEALS) CONFIRMED THE SA ID ADDITION MADE BY THE ASSESSING OFFICER UNDER SECTION 68 BY HOLDIN G THAT THERE WAS A FAILURE ON THE PART OF THE ASSESSEE TO DISCHARGE TH E PRIMARY ONUS LAY ON IT TO ESTABLISH THE IDENTITY AND CAPACITY OF THE CONCE RNED SHARE ALLOTTEES AND PROVE THE GENUINENESS OF THE RELEVANT TRANSACTIONS. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PRE FERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS SUBMITTED THAT THE DIRECTORS OF THE SHARE ALLOTTEE COMPANIES COULD NOT BE PRODUCED BY THE ASSESSEE ALONG WITH THE RELEVANT DO CUMENTARY EVIDENCE FOR VERIFICATION BEFORE THE ASSESSING OFFICER DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS DUE TO CERTAIN CIRCUMSTANCES BEYOND ITS CONTROL. HE HAS CONTENDED THAT THE ASSESSEE NOW IS IN A POSI TION TO PRODUCE THE SAID PARTIES FOR VERIFICATION BEFORE THE ASSESSING OFFICER AND URGED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE BY SEND ING THE MATTER BACK TO THE ASSESSING OFFICER FOR VERIFICATION. KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE CAUSE OF S UBSTANTIAL JUSTICE, WE ITA NO. 1555/KOL/2019 ASSESSMENT YEAR: 2012-2013 MAXWAY TRADING PVT. LIMITED 3 ARE INCLINED TO ACCEPT THIS PLEA OF THE LD. COUNSEL FOR THE ASSESSEE. EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION FOR SENDI NG THE MATTER BACK TO THE ASSESSING OFFICER FOR VERIFICATION. WE ACCORDIN GLY SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PA RTE AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DEC IDING THE SAME AFRESH AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE T O PRODUCE THE CONCERNED INVESTORS ALONGWITH THE RELEVANT SUPPORTI NG DOCUMENTS FOR VERIFICATION. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JULY 12, 201 9. SD/- SD/- (A.T. VARKEY) (P.M. J AGTAP) JUDICIAL MEMBER V ICE-PRESIDENT (KZ) KOLKATA, THE 12 TH DAY OF JULY, 2019 COPIES TO : (1) MAXWAY TRADING PVT. LIMITED, 1, SARDAR SHANKAR ROAD, KOLKATA-700 029 (2) INCOME TAX OFFICER, WARD-13(3), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-700 107 (3) COMMISSIONER OF INCOME TAX (APPEALS)-5, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.