ITO, WARD-10(1), Kolkata, Kolkata V. M/s Oversure Vincom Private Limited, Kolkata

ITA 1704/KOL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0134 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 26-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: M D SHAH
• Keywords: Unexplained cash credit; Set aside
• Section: 143(3); 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI A.T.VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.1704/KOL/2016 ( / ASSESSMENT YEAR:2012-13) ITO, WARD-10(1), KOLKATA VS. M/S OVERSURE VINCOM PVT. LTD. 7, HALADHAR BASU ROAD, PANIHATI, KOLKATA-700114 ./ ./PAN/GIR NO.: AABCO 5192 P (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI A.K. SINGH, CIT DR RESPONDENT BY : SHRI M. D. SHAH, AR / DATE OF HEARING : 23/01/2019 /DATE OF PRONOUNCEMENT : 29 /03/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE REVENUE, PERTAIN ING TO ASSESSMENT YEAR 2012-13, IS DIRECTED AGAINST AN ORDER PASSED BY T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-4, KOLKATA (IN SHORT THE LD. CIT(A)], WHICH IN TURN ARISES OUT OF ASSESSMENT ORDER PASSED BY THE ASSESSING OF FICER U/S 143(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) DATED 22.03.201 5. 2. AT THE OUTSET ITSELF THE LD. DR FOR THE REVENUE SUBMITTED THAT FOUR NOTICES U/S 133(6) OF THE ACT REMAINED UNSERVED TO THE SHARE AP PLICANTS NAMELY LIFE TIME MERCANTILE PVT. LTD., LINK POINT MERCHANDISE PVT. L TD., BIJAY KUMAR JAISWAL AND M/S OVERSUREVINCOM PVT. LTD. ITA NO.1704/KOL/2016 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 2 22 2 MANAS CHAKRABORTY. THEREFORE, THE IDENTITY, CREDITW ORTHINESS AND GENUINENESS OF THESE FOUR SHARE APPLICANTS HAVE NOT BEEN PROVED DU RING THE APPELLATE PROCEEDINGS. THEREFORE, THE LD. DR REQUESTED THE BENCH TO REMIT THE CASE BACK TO THE FILE OF THE LD. CIT(A) TO EXAMINE THE FOUR APPLICANTS TO WHOM T HE NOTICES WERE NOT SERVED. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE HAS FAIRLY AGREED WITH THE SUBMISSIONS OF THE LD. DR THAT DURING THE APPELLATE PROCEEDINGS THE NOTICES U/S 133(6) OF THE ACT HAD NOT SERVED TO THE FOUR SHARE APPLICANTS I.E. NOTICES WERE NOT SERVED TO THE FOUR ADDRESSEE AND THEREFORE THE COUN SEL HAS AGREED WITH THE LD. DR TO REMIT THIS CASE BACK TO THE FILE OF THE LD. CIT( A) FOR LIMITED PURPOSE TO VERIFY THE FOUR ADDRESSEES AND THEIR GENUINENESS, IDENTITY AND CREDITWORTHINESS. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE NOTE THAT OUT OF FOURTEEN (14) SHARE APPLICANTS, FOUR SHARE APPLICANTS` IDENTITY, CREDITWORTHINESS AND GENUINENESS HAVE NOT BEEN TEST ED BY THE LD CIT(A), AS THE NOTICES U/S133(6) OF THE ACT ISSUED TO THEM HAD NOT BEEN SERVED ON THEM. THE RELEVANT OBSERVATIONS OF THE LD CIT(A) TO THE EXTEN T APPLICABLE TO US IS GIVEN BELOW: 4.4. IT IS OBSERVED THAT THAT THE AO HAD ISSUED NO TICES U/S 133(6) OF THE ACT, TO EACH OF THE SHARE APPLICANTS. SUCH NOTICES WERE DUL Y SERVED UPON THE RESPECTIVE SHARE APPLICANTS AT THEIR RESPECTIVE ADDRESSES ON T HE RECORDS OF THE APPELLANT. SERVICE OF SUCH NOTICES U/S 133(6) OF THE ACT TO EA CH OF THE SHARE APPLICANTS AT THEIR RESPECTIVE KNOWN ADDRESSES PROVES THEIR RESPE CTIVE IDENTITIES. IT IS FURTHER OBSERVED THAT THE CORPORATE SHARE APPLICANTS ARE RE GISTERED UNDER THE COMPANIES ACT, 1956 AND ARE ON THE RECORDS OF REGIS TRAR OF COMPANIES FUNCTIONING UNDER MINISTRY OF CORPORATE AFFAIRS, GO VERNMENT OF INDIA AND THE INDIVIDUALS ARE HAVING PERMANENT ACCOUNT NUMBERS. I N FACT, EACH OF THE SHARE APPLICANTS HAS RESPONDED TO THE STATUTORY NOTICES I SSUED TO THEM U/S 133(6) OF THE ACT. 4.8. THEREFORE, CONSIDERING THE TOTALITY OF THE FAC TS AND CIRCUMSTANCES OF THE CASE, I FIND SUBSTANCE IN THE ARGUMENT OF THE AR THAT THE APPELLANT HAS MADE ITS CASE THAT THE IDENTITY OF THE SHARE APPLICANTS ARE ESTAB LISHED BEYOND DOUBT AND ON ENQUIRIES MADE BY THE AO THERE IS NO ADVERSE FINDIN G REACHED. ON THIS ASPECT. ADMITTEDLY, ALL THE SHARE APPLICANTS ARE EXISTING A SSESSEES UNDER THE ACT WHICH ESTABLISHES THE IDENTITY AND AUTHENTICITY OF THE SH ARE APPLICANTS. ABOUT THE GENUINENESS OF THE TRANSACTIONS THERE IS NO ANY ADV ERSE FINDING IN THE ASSESSMENT ORDER WHICH IS DISTINCT TO THE FACTS BROUGHT ON REC ORD BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDING. THE CREDITWORTHINESS OF THE SHARE APPLICANTS AS REGARDS THEIR SUBSCRIPTION TO THE SHARE CAPITAL IS PROVED BY SUBMISSION OF THEIR RETURN, AUDITED ANNUAL ACCOUNTS, THEIR BANK STATEME NT AND REPLIES TO NOTICES U/S M/S OVERSUREVINCOM PVT. LTD. ITA NO.1704/KOL/2016 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 3 33 3 133(6) OF THE ACT AS DEPICTED HEREINABOVE. THE NET WORTH OF SUCH SUBSCRIBERS IS IN EXCESS OF THE AMOUNT INVESTED BY EACH OF THEM AS EX PLAINED HEREINABOVE. THE ADDITION MADE BY AO IS BASED ON EXTRANEOUS PARAMETE RS NOT GERMANE FOR DECIDING THE ISSUE. THE AO HAD NOT DEALT WITH THE I SSUE JUDICIOUSLY AND CONSISTENTLY WITH THE EVIDENCE ADDUCED DURING THE C OURSE OF THE ASSESSMENT PROCEEDINGS BY THE APPELLANT AND THE REPLIES OF THE SHARE APPLICANTS IN RESPECT OF THE SHARE CAPITAL DO NOT WARRANT THE INFERENCE THAT SHARE APPLICATION MONIES RECEIVED IS UNACCOUNTED CASH CREDIT. HENCE, I AMINC LINED TO ACCEPT THE ARGUMENTS TENDERED BY THE AR OF THE APPELLANT IN THIS RESPECT IN VIEW OF THE FOREGOING DISCUSSIONS, I HAVE NO HESITATION TO HOLD THAT THE IMPUGNED ADDITION MADE BY INVOKING THE PROVISIONS OF S. 68 BY THE AO IS NOT J USTIFIED UNDER THE FACTS CIRCUMSTANCES OF THE CASE AND ACCORDINGLY, THE IMPU GNED ADDITION OF RS. 12,80,00,000/- MADE ON THIS COUNT IS DIRECTED TO BE DELETED. THUS, THESE GROUNDS ARE ALLOWED. 4. AFTER GOING THROUGH THE FINDINGS OF THE LD. CIT( A) AS NOTED ABOVE WE NOTE THAT OUT OF FOURTEEN SHARE APPLICANTS, FOUR SHARE APPLIC ANTS HAVE NOT BEEN SERVED NOTICES U/S 133(6) OF THE ACT, AS ADMITTED BY BOTH, LD COUN SEL AS WELL AS, LD DR FOR THE REVENUE. WE HAVE VERIFIED THE PAPER BOOK SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE AND WE ARE OF THE VIEW THAT THESE FOUR SHA RE APPLICANTS SHOULD BE EXAMINED BY THE LD. CIT(A) IN TERMS OF IDENTITY, CR EDITWORTHINESS AND GENUINENESS OF THE SHARE APPLICANTS` MONEY. THEREF ORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE ONLY FOR LIMITED PURPOSES, THAT IS, IDENT ITY, CREDITWORTHINESS AND GENUINENESS OF THE FOUR SHARE APPLICANTS, AS PER THE DISCUSSION MADE (SUPRA). 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 29.03.2019 SD/- ( A.T.VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE: 29 /03/2019 ( SB, SR.PS ) M/S OVERSUREVINCOM PVT. LTD. ITA NO.1704/KOL/2016 ASSESSMENT YEAR:2012-13 P PP PA AA AG GG GE EE E | || | 4 44 4 COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-10(1), KOLKATA 2. M/S OVERSURE VINCOM PVT. LTD. 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES