M/s. Almighty Dealers Pvt. Ltd., , Kolkata V. ITO, Ward - 2(2), Kolkata, Kolkata

ITA 1557/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0306 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 30-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C J SINGH
• Keywords: Earning of tax free income
• Section: 14A; 143(1); 131; 68; 2

Judgement Text

I.T.A NO.2404/KOL/2016 ASSESSMENT YEAR: 2010-11 PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA BEFORE: SHRI P. M. JAGTAP, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NO.1557/KOL/2017 (ASSESSMENT YEAR: 2012-13) M/S ALMIGHTY DEALERS PVT. LTD. APPELLANT [PAN: AAGCA 4969 F] VS ITO, WARD-2(2), KOLKATA RESPONDENT FOR THE APPELLANT : SHRI SUJOY SEN, ADVOCATE FOR THE RESPONDENT : SHRI C. J. SINGH, JCIT, SR.DR DATE OF HEARING : 12.03.2019 DATE OF PRONOUNCEMENT : 29.03.2019 ORDER PER SHRI S.S. VISWANETHRA RAVI, JM: THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 23.03.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-9, KOLKATA [CIT(A)] FOR ASSESSMENT YEAR 2012-13. 2. GROUND NOS.1 TO 6 RAISED BY THE ASSESSEE ARE RELATED TO CONFIRMATION OF ADDITION MADE U/S 68 OF THE ACT. 3. HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. ACCORDING TO ASSESSING OFFICER, THE ASSESSEE IS A COMPANY AND ENGAGED IN THE BUSINESS OF INVESTMENT IN SHARES. NOTICES U/S 143(2) AND 143(1) WERE ISSUED AND IN RESPONSE TO SUCH NOTICES, THE ASSESSEE FILED VARIOUS DOCUMENTS. ON EXAMINATION OF SUCH DOCUMENTS, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS RECEIVED LARGE SHARE APPLICATION MONEY ALONG WITH PREMIUM. I.T.A NO.2404/KOL/2016 ASSESSMENT YEAR: 2010-11 PAGE | 2 SUMMONS U/S 131 OF THE ACT WAS SERVED ON THE DIRECTOR OF THE ASSESSEE COMPANY WHEREIN THE ASSESSING OFFICER REQUESTED TO EXPLAIN THE REASONS AND COMPLETE DETAILS OF SHARE APPLICATION OF PREMIUM MONEY. IT IS NOTED FROM PAGE NO.2 OF THE ASSESSING OFFICERS ORDER, THE ASSESSEE DID NOT COMPLY WITH THE REQUEST AS MADE BY THE ASSESSING OFFICER U/S 131 OF THE ACT AND THE ASSESSING OFFICER ADDED AN AMOUNT OF RS.4,15,20,000/- U/S 68 OF THE ACT. A CONTENTION WAS MADE BEFORE THE CIT(A) BY WAY OF ADDITIONAL GROUND THAT THE ASSESSING OFFICER DID NOT CONSIDER THE FACT OF RECEIPT OF ONLY RS.1,00,00,000/- TOWARDS SHARE APPLICATION MONEY DURING THE YEAR UNDER CONSIDERATION AND THE DISALLOWANCE SHOULD NOT EXCEED THE SAID AMOUNT U/S 68 OF THE ACT. THERE WAS NO CLEAR FINDING BY THE CIT(A) REGARDING THE ADDITIONAL GROUND WHETHER THE ASSESSEE HAS RECEIVED RS.1,00,00,000/- OR RS.4,15,20,000/-, BUT HOWEVER, CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 4. THE LD. AR BEFORE US REITERATED THE SAME SUBMISSIONS AS WAS MADE BEFORE THE CIT(A) AND FURTHER PRAYED TO REMAND THE MATTER TO THE FILE OF THE ASSESSING OFFICER AS THERE WAS NO COMPLIANCE IN RESPONSE TO THE SUMMONS U/S 131 OF THE ACT BY THE ASSESSEE. FURTHER, HE HAS UNDERTAKEN THAT THE ASSESSEE IS READY TO PRODUCE THE THEN DIRECTORS OF THE ASSESSEE AND SHARE SUBSCRIBING COMPANIES BEFORE THE ASSESSING OFFICER IF THIS TRIBUNAL PLEASES TO REMAND THE MATTER TO THE FILE OF THE ASSESSING OFFICER. 5. THE LD. DR DID NOT REPORT OBJECTION AND AGREED TO THE SUBMISSIONS OF THE LD. AR IN REMANDING THE MATTER TO THE FILE OF ASSESSING OFFICER. 6. TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSIONS OF THE LD. AR AND DR, WE DEEM IT PROPER TO REMAND THE MATTER TO THE FILE OF ASSESSING OFFICER FOR FRESH I.T.A NO.2404/KOL/2016 ASSESSMENT YEAR: 2010-11 PAGE | 3 CONSIDERATION IN TERMS OF ABOVE AND THE ASSESSEE SHALL PRODUCE THE DIRECTORS OF THE ASSESSEE COMPANY AND SHARE SUBSCRIBING COMPANY BEFORE THE ASSESSING OFFICER FOR THE SPEEDY DISPOSAL OF THE MATTER. THE ASSESSEE IS AT LIBERTY TO FILE ALL EVIDENCES, IF ANY, RELATING TO THE ISSUE ON HAND AND THE GROUNDS NO.1 TO 6 ARE ALLOWED FOR STATISTICAL PURPOSES. 7. GROUND NOS.7 & 8 RAISED BY THE ASSESSEE RELATING TO CONFIRMATION OF DISALLOWANCE MADE U/S 14A OF THE ACT. 8. HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE RECORD THAT THE ASSESSEE EARNED AN AMOUNT OF RS.10,57,248/- AS EXEMPT INCOME. THE ASSESSING OFFICER MADE DISALLOWANCE OF RS.1,55,600/-. THE CIT(A) CONFIRMED THE SAME. ON PERUSAL OF THE RECORD, IT IS NOTED FROM THE PROFIT & LOSS ACCOUNT, THE ASSESSEE AT PAGE NO.81 OF THE PAPER BOOK THAT THE ASSESSEE EARNED AN AMOUNT OF RS.10,57,248/- AND THE DISALLOWANCE MADE BY THE ASSESSING OFFICER, IN OUR OPINION, IS REASONABLE AND REQUIRES NO INTERFERENCE FROM THIS TRIBUNAL. THEREFORE, GROUND NOS.7 & 8 RAISED BY THE ASSESSEE ARE DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.03.2019. SD/- SD/- [P. M. JAGTAP] [S.S. VISWANETHRA RAVI] VICE PRESIDENT JUDICIAL MEMBER DATED :29.03.2019 PLACE : KOLKATA RS, SR.PS I.T.A NO.2404/KOL/2016 ASSESSMENT YEAR: 2010-11 PAGE | 4 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT M/S ALMIGHTY DEALERS PVT. LTD., C/O SANTOSH CHOUDHURY & ASSOCIATES, COMMERCE HOUSE, 2A, GANESH CH. AVENUE, 6 TH FLOOR, ROOM NO.3, KOLKATA 700 013. 2 RESPONDENT ITO, WARD-2(2), KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA //TRUE COPY// BY ORDER, ASSISTANT REGISTRAR, ITAT, KOLKATA