M/s Pratham Coal Movers & Traders pvt. Ltd., Kolkata V. I.T.O.,Ward-2(1), Kolkata

ITA 159/KOL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2776 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 29-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Set aside
• Section: 143(3); 131; 68

Judgement Text

I.T.A. NO. 159/KOL/2019 (ASSESSMENT YEAR: 2012-2013) M/S. PRATHAM COAL M OVERS & TRADERS PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) & SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 159/KOL/2019 ASSESSMENT YEAR: 2012-2013 M/S. PRATHAM COAL MOVERS & TRADERS PVT. LIMITED,... ...............APPELLANT 58, METCALFE STREET, 1 ST FLOOR, ROOM NO. 1C, KOLKATA-700 013 [PAN: AAGCP 0821 K] -VS.- INCOME TAX OFFICER,................................ ..........................RESPONDENT WARD-2(1), KOLKATA, P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, 7 TH FLOOR, KOLKATA-700 069 APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE, FOR THE APPELLAN T SHRI SANKAR HALDER, JCIT, SR. D.R., FOR THE RESPOND ENT DATE OF CONCLUDING THE HEARING : JUNE 07, 2019 DATE OF PRONOUNCING THE ORDER : JUNE 07, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KOLKATA ZONE) :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA DAT ED 31.08.2018 PASSED EX-PARTE, WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF COAL TRADING. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 28.09.2012 DECLARI NG TOTAL INCOME OF RS.1,07,466/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD RECEIVED A SUBSTANTIAL AMOUNT ON ACCOUNT OF SHARE C APITAL AND SHARE PREMIUM. IN ORDER TO EXAMINE/VERIFY THE CLAIM OF TH E ASSESSEE ON ACCOUNT OF THE SHARE CAPITAL AND SHARE PREMIUM, SUMMONS UND ER SECTION 131 OF THE ACT WERE ISSUED BY THE ASSESSING OFFICER TO THE DIRECTORS OF THE SHARE SUBSCRIBER COMPANIES. THE SAID SUMMONS, HOWEVER, RE MAINED UN- I.T.A. NO. 159/KOL/2019 (ASSESSMENT YEAR: 2012-2013) M/S. PRATHAM COAL M OVERS & TRADERS PVT. LIMITED 2 COMPLIED WITH. THE ASSESSING OFFICER, THEREFORE, AS KED THE ASSESSEE TO PRODUCE THE DIRECTORS OF THE SHAREHOLDER COMPANIES FOR HIS EXAMINATION ALONG WITH THE RELEVANT SUPPORTING DOCUMENTS. IN CO MPLIANCE WITH THIS REQUIREMENT OF THE ASSESSING OFFICER, THE DIRECTORS OF SEVEN SHARE SUBSCRIBER COMPANIES WERE PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. IN THEIR STATEMENTS RECORDED BY THE ASSESSING OFFICER, ALL THE DIRECTORS OF THE SEVEN SHARE SUBSCRIBER COM PANIES CONFIRMED THEIR INVESTMENTS MADE IN THE SHARE CAPITAL/SHARE PREMIUM OF THE ASSESSEE- COMPANY. THEY ALSO PRODUCED DOCUMENTS IN SUPPORT OF THEIR INVESTMENT INCLUDING THE COPIES OF THE ASSESSMENT ORDERS PASSE D IN THEIR CASES TO ESTABLISH THEIR CREDITWORTHINESS AS WELL AS GENUINE NESS OF THE RELEVANT TRANSACTIONS. BEING SATISFIED WITH THIS COMPLIANCE, THE ASSESSEE WAS REQUIRED BY THE ASSESSING OFFICER TO PRODUCE THE DI RECTORS OF THE REMAINING SHARE SUBSCRIBER COMPANIES ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE. THE ASSESSEE, HOWEVER, FAILED TO COMPLY WITH THE SAME. THE ASSESSING OFFICER, THEREFORE, TREATED THE SHARE CAPITAL AND SHARE PREMIUM AMOUNT OF RS.1,59,00,000/- RECEIVED F ROM THESE SHARE SUBSCRIBER COMPANIES, WHO COULD NOT BE PRODUCED FOR HIS EXAMINATION/VERIFICATION AS UNEXPLAINED CASH CREDIT AND AN ADDITION TO THAT EXTENT WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 68 IN THE ASSESSMENT COMPLETED UNDER SECTIO N 143(3) VIDE AN ORDER DATED 31.03.2015. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF TH E ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HE ARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED THE APPEAL OF THE AS SESSEE FOR NON- PROSECUTION VIDE HIS APPELLATE ORDER DATED 31.08.20 18 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. I.T.A. NO. 159/KOL/2019 (ASSESSMENT YEAR: 2012-2013) M/S. PRATHAM COAL M OVERS & TRADERS PVT. LIMITED 3 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. BESIDES EXPL AINING THE NON- COMPLIANCE ON THE PART OF THE ASSESESE TO THE NOTIC ES ISSUED BY THE LD. CIT(APPEALS) AS NON-RECEIPT OF THE SAID NOTICES, TH E LD. COUNSEL FOR THE ASSESESE HAS SUBMITTED THAT PROPER AND SUFFICIENT O PPORTUNITY TO PRODUCE THE DIRECTORS OF THE CONCERNED SHARE SUBSCRIBER COM PANIES WAS NOT AFFORDED BY THE ASSESSING OFFICER TO THE ASSESSEE D URING THE COURSE OF ASSESSMENT PROCEEDINGS. HE HAS SUBMITTED THAT THE A SSESSEE-COMPANY IS IN A POSITION TO PRODUCE THE SAID PARTIES FOR EXAMI NATION/VERIFICATION BEFORE THE ASSESSING OFFICER ALONG WITH THE RELEVAN T SUPPORTING DOCUMENTARY EVIDENCE AND URGED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE BY SENDING THE MATTER BACK TO THE ASSESSIN G OFFICER. KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, W E ARE INCLINED TO ACCEPT THIS REQUEST MADE ON BEHALF OF THE ASSESSEE. EVEN T HE LD. D.R. HAS NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE ASSESSING OFFICER FOR VERIFICATION. WE ACCORDINGLY SET ASIDE THE IMPU GNED ORDER PASSED BY THE LD. CIT(APPEALS) EX-PARTE AND RESTORE THE MATTE R TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTE R GIVING THE ASSESSEE ONE MORE OPPORTUNITY TO PRODUCE THE DIRECTORS OF TH E CONCERNED SHARE SUBSCRIBER COMPANIES ALONG WITH THE RELEVANT DOCUME NTARY EVIDENCE FOR EXAMINATION/VERIFICATION. 4.1. AS UNDERTAKEN BY THE LD. COUNSEL FOR THE ASSES SEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE ASSESSING OFFICER AN D SHALL EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE ASSESSI NG OFFICER TO MAKE THE ASSESSMENT AFRESH EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 07, 2019 . SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER VICE- PRESIDENT (KZ) KOLKATA, THE 7 TH DAY OF JUNE, 2019 COPIES TO : (1) M/S. PRATHAM COAL MOVERS & TRADERS PVT. LIMITED, I.T.A. NO. 159/KOL/2019 (ASSESSMENT YEAR: 2012-2013) M/S. PRATHAM COAL M OVERS & TRADERS PVT. LIMITED 4 58, METCALFE STREET, 1 ST FLOOR, ROOM NO. 1C, KOLKATA-700 013 (2) INCOME TAX OFFICER, WARD-2(1), KOLKATA, P-7, CHOWRINGHEE SQUARE, AAYAKAR BHAWAN, 7 TH FLOOR, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKA TA, (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.