Sadabahar Vyapaar Pvt Ltd, Kolkata V. ITO, Ward - 5(1), Kolkata , Kolkata

ITA 1650/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5998 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 14-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHERJEE
• Assessee Lawyers: M TIWARI
• Keywords: Unexplained cash credit
• Section: 133(6); 263; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.1650/KOL/2017 ASSESSMENT YEAR:2008-09 SADABAHAR VYAPAAR PVT. LTD., 58/6, DR. JIBAN RATAN DHAR ROAD, FLAT NO.8, 2 ND FLOOR, KOLKATA-28 [ PAN NO.AAKCS 5575 K ] / V/S . INCOME TAX OFFICER, WARD-5(1), P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI M. TIWARI, AR /BY RESPONDENT SHRI A. BHATTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 23-07-2018 /DATE OF PRONOUNCEMENT 31-07-2018 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 ARISES AGAINST COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATAS O RDER DATED 08.02.2016 PASSED IN CASE NO.1755/CIT(A)-2/2014-15, UPHOLDING ASSESSING OFFICERS ACTION IN ADDING SHARE CAPITAL / PREMIUM OF 3,20,15,000/- U/S 68 AS UNEXPLAINED CASH CREDITS IN ASSESSMENT ORDER DATED 30.03.2014, INVOLVING PROCEEDINGS U/S 143(3)/263/147 OF THE INCOME TAX AC T, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STANDS AGAINST AND IN SUPPORT OF THE IMPUGNED ADDITION. CASE FILE PERUSED . ITA NO.1650/KOL/2017 A.Y. 2008-09 SADABAHAR VYAPAAR PVT. LTD. VS. ITO WD-5(1) KOL PAGE 2 2. IT EMERGES AT THE OUTSET THAT THE CIT(A)S LOWER APPELLATE ORDER SHARE CAPITAL / PREMIUM ADDITION OF 3,20,15,000/- HAS BEEN PASSED WHILST AFFIRMING ASSESSING OFFICERS ACTION MAKING THE IMPUGNED ADDI TION OF UNEXPLAINED SHARE APPLICATION / PREMIUM. THE INSTANT LIS HAS EMANATED FROM THE CITS DIRECTION DATED 28.03.2013 IN REVISION PROCEEDINGS U/S. 263 O F THE ACT RESTORING THE ASSESSMENT / RE-ASSESSMENT IN QUESTION DATED 11.03. 2013 FOR THE PURPOSE CONDUCTING DETAILED ENQUIRIES REGARDING THE ABOVE S HARE CAPITAL / PREMIUM. THE ASSESSING OFFICER ISSUED U/S/ 133(6) NOTICES TO VAR IOUS INVESTOR ENTITIES. THE ASSESSMENT ORDER DATED 30.03.2014 SUGGESTS THAT NON E OF THEM APPEARED. ALL THIS MADE THE ASSESSING OFFICER TO DOUBT GENUINENESS / C REDITWORTHINESS OF THE ABOVE SHARE CAPITAL AND PREMIUM AMOUNTING TO 3,20,15,000/- IN VIEW OF HON'BLE APEX COURTS DECISION IN SUMATI DAYAL VS. CIT 214 ITR 801 (SC) AND OTHER JUDICIAL PRECEDENTS. 3. NEEDLESS TO SAY, THE CIT(A) HAS AFFIRMED THE ABO VE STATED ADDITION IN HIS LOWER APPELLATE ORDER PASSED EX PARTE . 4. LEARNED COUNSEL REPRESENTING ASSESSEE SUBMITS DU RING THE COURSE OF HEARING CIT(A) HEARING NOTICE WAS ADMITTEDLY NOT SE RVED ON ACCOUNT OF INSTANT TAXPAYERS ALLEGED INSUFFICIENT ADDRESS. HE TAKE US TO ASSESSMENT ORDER FORM 36 ATTACHED WITH THE PRESENT INSTANT APPEAL TO SUBMIT THAT ASSESSEES ADDRESS THROUGHOUT HAS REMAINED UNCHANGED AND THEREFORE, TH E LOWER APPELLATE ORDER HAS BEEN WRONGLY PASSED EX PARTE WHILST AFFIRMING THE I MPUGNED ADDITION U/S. 68 OF THE ACT. THE REVENUE ON THE OTHER HAND VEHEMENTLY S UPPORTS BOTH THE LOWER AUTHORITIES ACTION ON MERITS. IT FAILS TO DISPUTE T HE FACT THAT CIT(A)S NOTICE OF HEARING LOWER APPELLATE PROCEEDINGS HAD NOT BEEN SE RVED ON THE TAXPAYERS HIS ADDRESS WHICH REMAINS THE SAME RIGHT FROM ASSESSMEN T TILL DATE IN THE INSTANT SECOND APPELLATE STAGE. WE THEREFORE ARE OF THE VIE W THAT THE ASSESSEE DESERVES ONE MORE INNINGS BEFORE CIT(A). WE ACCORDINGLY REST ORE THE INSTANT LIS BACK TO ITA NO.1650/KOL/2017 A.Y. 2008-09 SADABAHAR VYAPAAR PVT. LTD. VS. ITO WD-5(1) KOL PAGE 3 THE CIT(A) FOR AFRESH ADJUDICATION AS PER LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING. 5. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTIC AL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 31/07/2018 SD/- SD/- ( !) (#$ !) (P.M.JAGTAP) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS % - 31/07/2018 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SADABAHAR VYAPAAR PVT. LTD., 58/6, DR. J IBAN RATAN DHAR ROAD, FLAT NO.8, 2 ND FLOOR, KOLKATA-28 2. /RESPONDENT-ITO WARD-5(1), P-7, CHOWRINGHEE SQUARE, KOLKATA-69 3. ( + / CONCERNED CIT 4. + - / CIT (A) 5. , $$( , ( / DR, ITAT, KOLKATA 6. 0 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO (,