M/s. Quantam Suppliers Pvt Ltd., Kolkata V. ITO, Ward-4(4), Kolkata, Karnataka

ITA 1608/KOL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6316 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 09-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SRIHARI
• Keywords: Opportunity of being heard
• Section: 263

Judgement Text

1 ITA NO.1608/KOL/2016 M/S QUANTAM SUPPLIERS PVT. LT D. A.Y.2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A KOL KATA [BEFORE HONBLE SHRI S.S. GODARA, JM & SHRI M.BAL AGANESH, AM ] ITA NO.1608/KOL/2016 ASSESSMENT YEAR : 2012-13 M/S QUANTAM SUPPLIERS PVT. LTD. -VERSUS- I.T.O.-4 (4), KOLKATA KOLKATA (PAN:AAACQ 1621 L) (RESPONDENT) FOR THE APPELLANT: SHRI SUNIL SURANA, FCA FOR THE RESPONDENT: SHRI P.K.SRIHARI, CIT DATE OF HEARING : 02.05.2018. DATE OF PRONOUNCEMENT : 09.05.2018. ORDER PER S.S. GODARA, JM: 1. THIS ASSESSEES APPEAL FOR A.Y.2012-13 EMANATES FROM THE PRINCIPAL C.I.T.-2, KOLKATAS ORDER DATED 27.07.2016, IMPOSING PENALTY OF RS.19,46,17,000/-, IN PROCEEDINGS U/S 271(1)(C) OF THE INCOME TAX ACT, 1 961 (HEREINAFTER THE ACT). HEARD BOTH PARTIES. CASE FILE PERUSED. 3. WE NOTICE AT THE OUTSET THAT THE PRINCIPAL CIT HAS IMPOSED IMPUGNED PENALTY IN ASSESSEES CASE QUA SHARE PREMIUM AMOUNTING TO R S.58.,80,00,000/- AFTER EXERCISING HIS REVISIONARY JURISDICTION U/S 263 OF THE ACT IN HIS ORDER DATED 28.01.2016. IT IS EVIDENT FROM THE CASE FILE THAT THE ASSESSEE HAD PR EFERRED ITS APPEAL ITA NO.1607/KOL/2016 AGAINST THE SAID QUANTUM ORDER. A COORDINATE BENCH HAS PARTLY ACCEPTED ASSESSEES SAID QUANTUM APPEAL WITH THE FO LLOWING DIRECTIONS :- 10. WE HAVE CONSIDERED HIS SUBMISSIONS AND ARE OF THE VIEW THAT AS WAS DONE IN THE SIMILAR GROUP OF CASES WHICH WAS CONSIDERED BY THIS TRIBUNAL AND IN WHICH THE LEAD ORDER WAS PASSED IN THE CASE OF SUBHLAKSHMI VANIJYA PVT. LTD. (SUPRA), THE CIT OUGHT TO HAVE SET ASIDE THE ORDER OF AO AND D IRECT THE AO TO MAKE FRESH ENQUIRY WITH REGARD TO THE RECEIPT OF SHARE CAPITAL AND SHARE PREMIUM BY THE ASSESSEE DURING THE PREVIOUS YEAR. AS RIGHTLY POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE, SINCE THE PROCEEDINGS U/S 263 OF THE A CT WERE CONCLUDED EX-PARTE, 2 ITA NO.1608/KOL/2016 M/S QUANTAM SUPPLIERS PVT. LT D. A.Y.2012-13 THE ASSESSEE HAD NO OCCASION TO PLACE MATERIAL TO SA TISFACTORILY EXPLAIN THE RECEIPT OF SHARE CAPITAL AND SHARE PREMIUM BY THE ASSES SEE. THERE WAS HOWEVER NO MATERIAL ON THE BASIS OF WHICH THE CIT COULD HAVE COME TO THE CONCLUSION THAT THE RECEIPT OF SHARE CAPITAL AND SHARE PREMIUM WAS NOT SATISFACTORILY EXPLAINED BY THE ASSESSEE. AS RIGHTLY CONTENDED BY THE LD. COU NSEL FOR THE ASSESSEE, THE CIT OUGHT TO HAVE SET ASIDE THE ORDER OF THE AO AND DIRECT ED THE AO TO CONDUCT FRESH ENQUIRY ON THE LINES INDICATED IN THE ORDER OF THIS TRI BUNAL IN THE CASE OF SUBHLAKSHMI VANIJYA PVT. LTD. (SUPRA). WE THEREFORE MO DIFY THE ORDER OF CIT AND DIRECT THE AO TO MAKE FRESH ENQUIRY WITH REGARD TO THE RE CEIPT OF SHARE CAPITAL AND SHARE PREMIUM DURING THE PREVIOUS YEAR AFTER AFFORDING ASSESSEE OPPORTUNITY OF BEING HEARD. WITH THESE OBSERVATIONS T HE APPEAL OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED. 4. ALL THIS MAKES IT SUFFICIENTLY CLEAR THAT THE PR INCIPAL CITS QUANTUM ORDER EXERCISING REVISIONARY JURISDICTION ITSELF STANDS R EVERSED TO THE ABOVE EXTENT. BOTH PARTIES ARE THEREFORE AD IDEM DURING THE COURSE OF HEARING THAT THE IMPUGNED PENALTY HAS NO LEGS TO STAND AS ON DATE SINCE THE MAIN ISSU E HAS BEEN RESTORED TO THE ASSESSING OFFICER. WE THEREFORE DELETE THE IMPUGNED PENALTY A T THIS STAGE WITH LIBERTY TO THE ASSESSING OFFICER TO INITIATE THE SAME AFRESH IN FU RTHERANCE OF CONSEQUENTIAL PROCEEDINGS TO BE FINALISED AS PER CO-ORDINATE BENC HS REMAND ORDER. THE ASSESSEES SOLE SUBSTANTIVE GRIEVANCE IS ACCEPTED IN THE ABOVE TERMS. THUS ASSESSEES APPEAL IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 09.05.2018. SD/- SD/- [M.BALAGANESH] [ S.S. GODARA ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 09.05.2018. [RG SR.PS] 3 ITA NO.1608/KOL/2016 M/S QUANTAM SUPPLIERS PVT. LT D. A.Y.2012-13 COPY OF THE ORDER FORWARDED TO: 1.M/S QUANTAM SUPPLIERS PVT. LTD., 56, N.S.ROAD, 5 TH FLOOR, KOLKATA-700001. 2. I.T.O. WARD-4(4), KOLKATA. 3. PR. C.I.T.-2, KOLKATA. 4. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHES