Tolasariya Viniyog Pvt. Ltd., Kolkata V. ITO, Ward 4(4), Kolkata, Kolkata

ITA 1778/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1241 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 07-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K TIWARI
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 68; 148; 263

Judgement Text

1 ITA NO.1778/KOL/2016 TOLASARIYA VINYOG PVT. LTD., AY 2008-09 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) BEFORE . . , /AND . , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI M.BALAGANESH, AM] I.T.A. NO. 1778/KOL/2016 ASSESSMENT YEAR: 2008-09 TOLASARIYA VINYOG PVT. LTD. (PAN: AAACT9756F) VS. INCOME-TAX OFFICER, WD-4(4), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 20.02.2018 DATE OF PRONOUNCEMENT 23.03.2018 FOR THE APPELLANT SHRI MIRAJ D. SHAH, AR FOR THE RESPONDENT SHRI A. K. TIWARI, CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-6, KOLKATA DATED 28.07.2016 FOR AY 2008-09. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST T HE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.9,29,50,000/- MADE BY THE AO ON ACCOUNT OF SHARE APPLICATION MONEY BEING ADDED AS UNEXPLAINED CASH CREDIT BY INV OKING THE PROVISIONS OF SEC. 68 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT). 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 15.09.2008 DECLARING INCOME OF RS.10,270/- WHICH WA S PROCESSED U/S. 143(1) OF THE ACT. SUBSEQUENTLY, THE CASE WAS REOPENED BY ISSUING NOTI CE U/S. 148 OF THE ACT AND PASSED ORDER U/S. 147/143(3) OF THE ACT ON 30.06.2010 DETERMININ G TOTAL INCOME OF RS.63,015/-. THEREAFTER, ON RECEIVING PROPOSAL FOR EXAMINING THE RECORDS AND UPON CONSIDERING THE SAME, 2 ITA NO.1778/KOL/2016 TOLASARIYA VINYOG PVT. LTD., AY 2008-09 THE LD. CIT OBSERVED THAT REQUISITE AND PROPER INQU IRIES WERE NOT CONDUCTED REGARDING THE IDENTITY AND CREDITWORTHINESS OF THE SHAREHOLDERS A ND THE IMPUGNED ORDER WAS PASSED MECHANICALLY WITHOUT APPLICATION OF MIND WHICH REND ERED THE ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THEREA FTER, THE LD. CIT SET ASIDE THE ORDER OF THE AO PASSED U/S.147/143(3) OF THE ACT FOR FRESH ASSES SMENT VIDE HER ORDER PASSED U/S. 263 OF THE ACT ON 26.03.2013. IN THE LIGHT OF THE AFORESA ID ORDER OF THE LD. CIT, THE AO IN ORDER TO GIVE EFFECT TO THE ORDER OF LD. CIT, CASE WAS FIXED FOR REASSESSMENT HEARING ON 07.10.2013, THEREAFTER ON 24.02.2014 AND ON 04.03.2014 TO PRODU CE THE THREE DIRECTORS OF THE ASSESSEE COMPANY. TAKING NOTE THAT DIRECTORS DID NOT APPEAR BEFORE HIM THE AO CONCLUDED THAT THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE A LLEGED SHAREHOLDERS COULD NOT BE PROVED. ACCORDING TO AO, SINCE THE DIRECTORS OF THE ASSESSE E COMPANY COULD HAVE GIVEN AN EXPLANATION TO THE ISSUES INVOLVED, AND BECAUSE OF THEIR NON-COOPERATION OF THE DIRECTORS LEADS TO THE CONCLUSION THAT THE ASSESSEE IS NOT CO NFIDENT TO JUSTIFY THE SOURCE OF CAPITAL INTRODUCED AND ACCORDINGLY, SHARE APPLICATION MONEY OF RS 9,29,50,000/- RECEIVED BY THE ASSESSEE COMPANY DURING THE YEAR WAS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNACCOUNTED CASH CREDIT IN THE BOOKS OF THE ASSESSEE AS PER PROVISIONS OF SECTION 68 OF THE ACT. ON APPEAL, THE LD. CIT(A) W AS PLEASED TO CONFIRM THE SAME. AGGRIEVED, THE ASSESSEE IS BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT S UFFICIENT OPPORTUNITY WAS NOT GRANTED TO THE ASSESSEE BY THE AO. ACCORDING TO THE LD. COUNS EL, THE AO ISSUED NOTICE/SUMMONS THREE TIMES DATED 07.10.2013, 24.02.2014 AND 04.03.2014 F OR WHICH COMPLIANCE COULD NOT BE MADE BY THE ASSESSEE COMPANY. ACCORDING TO LD. CO UNSEL, DURING THE REOPENED ASSESSMENT PROCEEDINGS THE ASSESSEE HAD PRODUCED ALL THE DOCUM ENTS TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE SHARE CAPIT AL WHICH ARE ALREADY IN THE FILE OF AO AND THE LD. CITS REVISIONAL ORDER ASKED THE AO TO EXAMINE THE GENUINENESS AND SOURCE OF SHARE CAPITAL, NOT ON A TEST CHECK BASIS, BUT IN RE SPECT OF EACH AND EVERY SHAREHOLDER BY CONDUCTING INDEPENDENT ENQUIRY NOT THROUGH THE ASSE SSEE. SO, THE AO AFTER ISSUING THREE NOTICES TO ASSESSEE COMPANY CAME TO CONCLUSION THAT ASSESSEE FAILED TO PROVE THE IDENTITY, 3 ITA NO.1778/KOL/2016 TOLASARIYA VINYOG PVT. LTD., AY 2008-09 CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIO N, THEREAFTER BECAME ACTIVE ONLY IN THE FAG END OF FEBRUARY I.E. ON 24.02.2014. ACCORDING TO THE ASSESSEE, THE NOTICE BY THE AO DATED 04.03.2014 REQUIRED THE THREE DIRECTORS OF TH E ASSESSEE COMPANY TO ATTEND ON 14.03.2014 TO PRODUCE ALL DOCUMENTS WHICH COULD NOT BE COMPLIED BECAUSE THE DIRECTORS ARE NOT IN THE CONTROL OF THE ASSESSEE COMPANY. ACCORD ING TO LD AR, IT CANNOT BE LOST SIGHT THAT ALL RELEVANT DOCUMENTS TO DISCHARGE THE ONUS ON ASS ESSEE TO PROVE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE SHARE TRANSACTIONS WERE IN T HE POSSESSION OF AO AND THE AO WHILE GIVING EFFECT TO CITS 263 ORDER OUGHT TO HAVE ENQU IRED AS DIRECTED BY HIM NOT THROUGH THE ASSESSEE AND TOOK US TO THE FOLLOWING DIRECTION OF LD. CIT: XXXIV) EXAMINE THE GENUINENESS AND SOURCE OF SHARE CAPITAL, NOT ON A TEST CHECK BASIS, BUT IN RESPECT OF EACH AND EVERY SHAREHOLDER BY CONDUCTING INDEPENDENT ENQUIRY NOT THROUGH THE ASSESSEE. THE BANK ACCOUNT FOR THE ENTIRE PERIOD S HOULD BE EXAMINED IN THE COURSE OF VERIFICATION TO FIND OUT THE MONEY TRAIL OF THE SHA RE CAPITAL. XXXV) FURTHER THE AO SHOULD EXAMINE THE DIRECTORS A S WELL AS EXAMINE THE CIRCUMSTANCES WHICH NECESSITATED THE CHANGE IN DIRECTORSHIP IF AP PLICABLE. HE SHOULD EXAMINE THEM ON OATH TO VERIFY THEIR CREDENTIALS AS DIRECTOR AND REACH A LOGICAL CONCLUSION REGARDING THE CONTROLLING INTEREST. XXXVI) THE AO IS DIRECTED EXAMINE THE SOURCE OF REA LIZATION FROM THE LIQUIDATION OF ASSETS SHOWN IN THE BALANCE SHEET AFTER THE CHANGE OF DIRE CTORS, IF ANY AFTER CONDUCTING THE INQUIRIES & VERIFICATION AS DIRECTED ABOVE, THE AO SHOULD PAS S A SPEAKING ORDER, PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. WITHOUT FOLLOWING THE EXPRESS DIRECTION OF LD. C IT TO EXAMINE THE GENUINENESS AND SOURCE OF SHARE CAPITAL, NOT ON TEST CHECK BASIS, B Y CONDUCTING INDEPENDENT ENQUIRY NOT THROUGH ASSESSEE, IT WAS BROUGHT TO OUR NOTICE THAT THE AO HAS MENTIONED IN HIS ORDER THAT THE DIRECTORS OF THE ASSESSEE COMPANY WAS SUMMONED VIDE NOTICE DATED 04.03.2014 FOR PERSONAL APPEARANCE OF THE THREE DIRECTORS ON 14.03 .2014 AND THEREAFTER PASSED THE ORDER ON 29.03.2014. WE NOTE THAT THE REASSESSMENT ORDER PAS SED BY AO, PURSUANT TO THE ORDER PASSED U/S. 263 OF THE ACT BY LD. CIT WAS PASSED ON 29.03. 2014, THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT IT DID NOT GET PROPER OPPORTUNITY TO PLACE THE EVIDENCE BEFORE THE AO TO SATISFY HIM AS TO THE IDENTITY, GENUINENESS AND CRE DITWORTHINESS OF THE SHAREHOLDERS WHEN THE DOCUMENTS TO DISCHARGE THE INITIAL ONUS IS ALREADY IN HIS FILE. THEREFORE, THE LD. AR RELIED ON THE ORDER OF (THREE JUDGE BENCH) THE HONBLE SUP REME COURT IN TIN BOX COMPANY VS. CIT (2001) 249 ITR 216 (SC) WHEREIN THE HONBLE SU PREME COURT HAS HELD AS UNDER: 4 ITA NO.1778/KOL/2016 TOLASARIYA VINYOG PVT. LTD., AY 2008-09 IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEI NG HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A RE ASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CO NSIDERATION, AS AFORESTATED. 6. ON THE OTHER HAND, LD. DR VEHEMENTLY OPPOSED THI S PLEA OF THE ASSESSEE AND CONTENDED THAT THE ASSESSEE COMPANY WAS VERY WELL A WARE OF THE REVISIONAL ORDER PASSED BY THE LD. CIT AND SHOULD HAVE BROUGHT ALL EVIDENCE BE FORE THE AO TO SUBSTANTIATE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHARE SUBSC RIBERS. THE AO HAS NOTED THAT THE ASSESSEE DID NOT COOPERATE WITH THE ASSESSMENT PROC EEDINGS AND, THEREFORE, THE ASSESSEE CANNOT BE GIVEN ANOTHER INNINGS. WE NOTE THAT THE LD. CITS EXERCISE OF REVISIONAL JURISDICTION U/S. 263 OF THE ACT SETTING ASIDE THE 147/143 ORDER WAS PASSED IN MARCH,2013. WE NOTE THAT THE LD. CIT INVOKED THE REVISIONAL JUR ISDICTION U/S. 263 OF THE ACT AND FOUND THAT THE ASSESSEE COMPANY IN ITS BALANCE SHEET HAS SHOWN TO HAVE INFUSED EQUITY SHARE CAPITAL OF RS.9,29,50,000/- AND SINCE THE AO HAD NO T ENQUIRED INTO THE SOURCE OF THE SHARE CAPITAL AND PREMIUM INFUSED INTO THE ASSESSEE COMPA NY BY VERIFYING THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHAREHOLDER S, THE LD. CIT FOUND THAT THE AO WHILE DOING ASSESSMENT DID NOT EXERCISE THE ROLE OF INVES TIGATOR AND, THEREFORE, THE ORDER OF AO WAS FOUND TO BE ERRONEOUS SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND DIRECTED THE 5 ITA NO.1778/KOL/2016 TOLASARIYA VINYOG PVT. LTD., AY 2008-09 AO TO MAKE FRESH ASSESSMENT AFTER TAKING INTO CONSI DERATION THE PERNICIOUS PRACTICE OF CONVERTING BLACK MONEY BY THE MODUS OPERANDI AS DES CRIBED BY THE LD. CIT. WE ALSO NOTE THAT IN THE SAID BACKDROP THE LD. CIT HAS GIVEN CER TAIN GUIDELINES WHICH WE CAN SAY WAS IN ORDER TO FACILITATE A THOROUGH DEEP INVESTIGATION I NTO THE CASE AND FOR THAT WE NOTE THAT THE LD. CIT HAD GIVEN THE FOLLOWING DIRECTIONS AT THE S AKE OF REPETITION. XXXIV) EXAMINE THE GENUINENESS AND SOURCE OF SHARE CAPITAL, NOT ON A TEST CHECK BASIS, BUT IN RESPECT OF EACH AND EVERY SHAREHOLDER BY CONDUCTING INDEPENDENT ENQUIRY NOT THROUGH THE ASSESSEE. THE BANK ACCOUNT FOR THE ENTIRE PERIOD S HOULD BE EXAMINED IN THE COURSE OF VERIFICATION TO FIND OUT THE MONEY TRAIL OF THE SHA RE CAPITAL. XXXV) FURTHER THE AO SHOULD EXAMINE THE DIRECTORS A S WELL AS EXAMINE THE CIRCUMSTANCES WHICH NECESSITATED THE CHANGE IN DIRECTORSHIP IF AP PLICABLE. HE SHOULD EXAMINE THEM ON OATH TO VERIFY THEIR CREDENTIALS AS DIRECTOR AND REACH A LOGICAL CONCLUSION REGARDING THE CONTROLLING INTEREST. XXXVI) THE AO IS DIRECTED EXAMINE THE SOURCE OF REA LIZATION FROM THE LIQUIDATION OF ASSETS SHOWN IN THE BALANCE SHEET AFTER THE CHANGE OF DIRE CTORS, IF ANY AFTER CONDUCTING THE INQUIRIES & VERIFICATION AS DIRECTED ABOVE, THE AO SHOULD PAS S A SPEAKING ORDER, PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. WE NOTE THAT THE AO PURSUANT TO THE ORDER OF LD. CIT HAD TAKEN NOTE OF THE DIRECTIONS OF THE LD. CIT AND ISSUED THREE NOTICES ALTOGETHER DATED 07.10.2013, 24.02.2014 AND 04.03.2014. AFTER THE FIRST LETTER DATED 07.10.2013 , THEREAFTER, THE ENQUIRY WAS STARTED ONLY AT THE FAG END OF FEBRUARY 2014 AND THE REASSESSMEN T WAS FRAMED ON 29.03.2014. IN THE LIGHT OF THE AFORESAID FACTS, WE ARE OF THE OPINION THAT THE ASSESSEE DID NOT GET FAIR OPPORTUNITY TO PRESENT THE EVIDENCES BEFORE THE AO SO, THERE WAS A LACK OF OPPORTUNITY AS AFORESAID, THEREFORE, IT HAS TO GO BACK TO AO. 8. WE ALSO NOTE THAT LD. CIT WHILE SETTING ASIDE TH E ORDER OF THE AO WHICH WAS PASSED U/S. 147/143(3) OF THE ACT, THE LD. CIT GAVE CERTAI N GUIDELINES TO FOLLOW FOR CONDUCTING DEEP INVESTIGATION. WE ALSO NOTE THAT SIMILARLY PL ACED ASSESSEES HAD CHALLENGED THE EXERCISE OF REVISIONAL JURISDICTION U/S. 263 OF THE ACT BEFO RE THIS TRIBUNAL IN THOSE CASES ONE OF IT OF SUBHA LAKSHMI VANIJYA PVT. LTD. VS. CIT IN ITA NO. 1104/KOL/2014 DATED 30.07.2015, WHEREIN THE TRIBUNAL WAS PLEASED TO UPHOLD THE ORDE R PASSED BY THE LD. CIT PASSED U/S. 263 OF THE ACT, WHICH WE LEARN TO HAVE BEEN CONFIRMED B Y THE HONBLE JURISDICTIONAL HIGH COURT AND THE SLP PREFERRED AGAINST THE DECISION OF THE H ONBLE JURISDICTIONAL HIGH COURT HAS BEEN 6 ITA NO.1778/KOL/2016 TOLASARIYA VINYOG PVT. LTD., AY 2008-09 DISMISSED BY THE HONBLE SUPREME COURT. THEREFORE, SIMILAR ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD. WE NOTE THAT THE AO WHILE GIVING EFFECT TO THE CITS 263 ORDER HAS NOTED THAT HE HAD ISSUED THREE NOTICE S TO THE ASSESSEE COMPANY. HOWEVER, THE AO TOOK THE ADVERSE VIEW AGAINST THE ASSESSEE ON TH E PLEA THAT THE THREE DIRECTORS OF THE ASSESSEE COMPANY HAD NOT APPEARED BEFORE HIM ON 14. 03.2014 AND AFTER TAKING NOTE THAT NONE APPEARED ON 14.03.2014 CONCLUDED ON 29.03.2014 THAT ENTIRE AMOUNT OF SHARE APPLICATION MONEY RECEIVED ALONG WITH PREMIUM AMOUN TING TO RS.9,29,50,000/- WHICH HAS REMAINED UNEXPLAINED AND ADDED TO THE INCOME OF TH E ASSESSEE. WE ALSO NOTE THAT THE LD. CIT AFTER LOOKING INTO THE PERNICIOUS PRACTICE OF C ONVERTING BLACK MONEY INTO WHITE MONEY HAS GIVEN THE GUIDELINES TO AO AS TO HOW THE INVEST IGATION SHOULD BE CONDUCTED TO FIND OUT THE SOURCE OF SOURCE. SINCE SIMILAR ORDER OF THE L D. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD BY THE TRIBUNAL AS WELL AS BY THE HONBLE CA LCUTTA HIGH COURT AS WELL AS THE SLP HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT, SIMILA R ORDER OF THE LD. CIT HAS TO BE GIVEN EFFECT TO AS DIRECTED BY THE LD. CIT. WE TAKE NOTE THAT THE LD. CIT WITH HIS EXPERIENCE AND WISDOM HAS GIVEN CERTAIN GUIDELINES IN THE BACKDROP OF BLACK MONEY MENACE SHOULD HAVE BEEN PROPERLY ENQUIRED INTO AS DIRECTED BY HIM. TH E AO OUGHT TO HAVE FOLLOWED THE INVESTIGATING GUIDELINES AND METHOD AS DIRECTED BY HIM TO UNEARTH THE FACTS TO DETERMINE WHETHER THE IDENTITY, GENUINENESS AND CREDITWORTHIN ESS OF THE SHARE SUBSCRIBERS. WE NOTE THAT THE HONBLE SUPREME COURT IN THREE JUDGES BENC H IN THE CASE OF TIN BOX, (SUPRA), HAS HELD THAT SINCE THERE WAS LACK OF OPPORTUNITY TO TH E ASSESSEE AT THE ASSESSMENT STAGE ITSELF, THE ASSESSMENT NEEDS TO BE DONE AFRESH AND THEREBY REVERSED THE HONBLE HIGH COURT, TRIBUNAL AND CIT(A)S ORDERS AND REMANDED THE MATT ER BACK TO AO FOR FRESH ASSESSMENT. SO, SINCE THERE WAS LACK OF OPPORTUNITY AS AFORESTA TED IT HAS TO GO BACK TO AO. WE ALSO NOTE THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF C IT VS. JANSAMPARK ADVERTISING & MARKETING PVT. LTD. IN ITA NO. 525/2014 DATED 11.03 .2015 WHEREIN AFTER NOTICING INADEQUATE ENQUIRY BY AUTHORITIES BELOW HAVE HELD AS UNDER: 41. WE ARE INCLINED TO AGREE WITH THE CIT(APPEALS) , AND CONSEQUENTLY WITH ITAT, TO THE EXTENT OF THEIR CONCLUSION THAT THE ASSESSEE HEREIN HAD COME UP WITH SOME PROOF OF IDENTITY OF SOME OF THE ENTRIES IN QUESTION. BUT, FROM THIS INF ERENCE, OR FORM THE FACT THAT THE TRANSACTIONS WERE THROUGH BANKING CHANNELS, IT DOES NOT NECESSAR ILY FOLLOWING THAT SATISFACTION AS TO THE CREDITWORTHINESS OF THE PARTIES OR THE GENUINENESS OF THE TRANSACTIONS IN QUESTION WOULD ALSO HAVE BEEN ESTABLISHED. 7 ITA NO.1778/KOL/2016 TOLASARIYA VINYOG PVT. LTD., AY 2008-09 42. THE AO HERE MAY HAVE FAILED TO DISCHARGE HIS OB LIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. BUT CIT(APPE ALS), HAVING NOTICED WANT OF PROPER INQUIRY, COULD NOT HAVE CLOSED THE CHAPTER SIMPLY B Y ALLOWING THE APPEAL AND DELETING THE ADDITIONS MADE. IT WAS ALSO THE OBLIGATION OF THE F IRST APPELLATE AUTHORITY, AS INDEED OF ITAT, TO HAVE ENSURED THAT EFFECTIVE INQUIRY WAS CARRIED OUT, PARTICULARLY IN THE FACT OF THE ALLEGATIONS OF THE REVENUE THAT THE ACCOUNT STATEME NTS REVEAL UNIFORM PATTERN OF CASH DEPOSITS OF EQUAL AMOUNTS IN THE RESPECTIVE ACCOUNTS PRECEDI NG THE TRANSACTIONS IN QUESTION. THIS NECESSITATED A DETAILED SCRUTINY OF THE MATERIAL SU BMITTED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION148 ISSUED BY THE AO, AS ALSO T HE MATERIAL SUBMITTED AT THE STAGE OF APPEALS, IF DEEMED PROPER BY WAY OF MAKING OR CAUSI NG TO BE MADE A 'FURTHER INQUIRY IN EXERCISE OF THE POWER UNDER SECTION 250(4). HIS APP ROACH NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDER OF ITAT, AND CONSEQUENTLY THAT OF CI T(APPEALS), CANNOT BE APPROVED OR UPHELD.' 9. IN VIEW OF THE AFORESAID ORDER AND IN THE LIGHT OF THE HONBLE SUPREME COURTS DECISION IN TIN BOX COMPANY (SUPRA) AND TAKING INTO CONSIDERATION THE FACT THE ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT IN SIMILAR CASES BEING UPHELD UP TO THE LEVEL OF APEX COURT, AND TAKING NOTE OF HONBLE DELHI HIGH COURT S ORDER IN JANSAMPARK ADVERTISING & MARKETING PVT. LTD. (SUPRA), WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR DE NOVO ASSESSMENT AND T O DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. 10. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23RD MARC H, 2018 SD/- SD/- (M. BALAGANESH) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23RD MARCH, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. TOLASARIYA VINYOG PVT. LTD., C/ O, D. J. SHAH & CO., KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700 020. 2 RESPONDENT ITO, WARD-4(4), KOLKATA. 3. THE CIT(A) , KOLKATA. 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY