ITO, Ward 11(1), Kolkata, Kolkata V. M/s Scope Vyapaar Pvt. Ltd., Kolkata

ITA 1782/KOL/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1079 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 07-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R SHYAM
• Assessee Lawyers: N O N E
• Keywords: Opportunity of being heard; Source of fund; Additional evidence
• Section: 131

Judgement Text

1 ITA NO. 1782/KOL/2016 SCOPE VYAPAAR PVT. LTD., AY 2012-13 , D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA ( ) BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VA RKEY, JM] I.T.A. NO. 1782/KOL/2016 ASSESSMENT YEAR: 2012-13 INCOME-TAX OFFICER, WD-11(1), KOLKATA VS. SCOPE VYA PAAR PVT. LTD. (PAN: AAQCS6655Q) APPELLANT RESPONDENT DATE OF HEARING 08.11.2018 DATE OF PRONOUNCEMENT 30.11.2018 FOR THE APPELLANT SHRI R. SHYAM, CIT, DR FOR THE RESPONDENT N O N E ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE REVENUE IS AGAINST THE ORDER OF THE LD. CIT(A)-4, KOLKATA DATED 20.06.2016 FOR AY 2012-13. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE. AT THE OUTSET ITSELF, THE LD. DR DREW OUR ATTENTION TO THE FACT THAT EVEN THOUGH THE MATTER H AS BEEN LISTED 11 TIMES, THE ASSESSEE HAS NOT BOTHERED TO APPEAR AND THAT ITSELF SHOWS THAT T HE ASSESSEE IS AGAIN CARRYING OUT THE SAME STRATEGY IT TOOK BEFORE THE AO. IT WAS BROUGHT TO OUR NOTICE THAT THE AO HAS PASSED THE ORDER AFTER OBSERVING THAT EVEN THOUGH NOTICES WERE ISSUE D AND SUMMONS U/S. 131 OF THE INCOME- TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) WERE ISSUED AND NEITHER ANYONE APPEARED ON BEHALF OF THE ASSESSEE WITH ITS BOOKS OF ACCOUNT , BANK STATEMENT, COPIES OF INCOME TAX RETURNS ETC. NOR ON BEHALF OF THE SHARE SUBSCRIBING COMPANIES WHO HAVE SUBSCRIBED SHARES BY REMITTING HEAVY PREMIUM. THEREFORE, THE AO HAD NO OTHER ALTERNATIVE BUT TO MAKE THE ADDITION OF RS.12,62,80,000/- (SHARE CAPITAL OF RS. 54,42,160/- + PREMIUM OF RS.12,08,37,840/-). HOWEVER, IT WAS BROUGHT TO OUR NOTICE BY THE LD. DR THAT THOUGH ONE OF 2 ITA NO. 1782/KOL/2016 SCOPE VYAPAAR PVT. LTD., AY 2012-13 THE MAIN PLEA OF THE ASSESSEE BEFORE THE LD. CIT(A) WAS THAT (GROUND NO. 3) THE AO DID NOT PERMIT THE ASSESSEE TO PRODUCE RELEVANT DOCUMENTARY EVIDENCE, PAPERS, BOOKS OF ACCOUNT ETC. IN THE COURSE OF THE ASSESSMENT, THEREFORE, THE ASS ESSMENT ORDER WAS BAD IN LAW FOR WANT OF PROPER OPPORTUNITY OF HEARING. THE LD. DR THEREAFT ER POINTED OUT THAT THE LD. CIT(A) HAS ACKNOWLEDGED THAT THE ASSESSEE HAD FILED RELEVANT S UPPORTING EVIDENCE BEFORE HIM FOR THE FIRST TIME, HOWEVER, LD. CIT(A) DID NOT BOTHER TO E VEN CALL FOR REMAND REPORT AS ENVISAGED UNDER RULE 46A OF THE I. T. RULES, 1962. WE NOTE T HAT THE AO ISSUED SUMMONS U/S. 131 OF THE ACT TO ASCERTAIN THE GENUINENESS OF THE TRANSAC TION AND CREDITWORTHINESS OF THE SHARE SUBSCRIBING COMPANIES AND ALSO TO UNDERSTAND THE RE ASON FOR INVESTMENT WITH SUCH A HIGH PREMIUM TO THE PRINCIPAL OFFICER OF THE SHARE SUBSC RIBING COMPANIES AND CALLED FOR VARIOUS DETAILS LIKE DOCUMENTS FOR IDENTITY PROOF AND ADDRE SS PROOF, COPIES OF DOCUMENTS IN RELATION TO ALL DEBIT AND CREDIT ENTRIES, ALL RELEVANT BANK STATEMENTS, COPIES OF ALL RELEVANT ROC RETURNS, SOURCE OF FUND AND UTILISATION OF FUNDS, E VIDENCE OF CREDITWORTHINESS ALONG WITH INCOME TAX RETURNS FILED AND COPIES OF BALANCE SHEE T, P&L ACCOUNT, TAX AUDIT REPORT FOR THE RELEVANT ASSESSMENT YEAR AND WRITTEN SUBMISSION REGARDING PURPOSE OF RAISING FUNDS FROM THE SHARE APPLICANT. IT WAS BROUGHT TO OUR NO TICE THAT IN PARA 13 THE AO HAS SPECIFICALLY RECORDED THAT NONE APPEARED WITH ITS B OOKS AND OTHER DOCUMENTS TO EXPLAIN THE NATURE AND SOURCE OF THE CREDIT ENTRY APPEARING IN THE BOOKS OF ACCOUNT. IN SUCH A SCENARIO, WHEN THE APPEAL WAS PREFERRED BY THE ASSESSEE BEFOR E THE LD. CIT(A) AND HAS RAISED GROUND NO. 3 WHEREIN IT WAS SPECIFICALLY PLEADED BY THE AS SESSEE THAT THE AO DID NOT PERMIT THE ASSESSEE TO PRODUCE RELEVANT DOCUMENTARY EVIDENCE A ND ALLOWED THE PARTIES TO PRESENT ITS CASE IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE L D. CIT(A) BEFORE ADMITTING THE EVIDENCE WHICH THE ASSESSEE PRODUCED BEFORE HIM FOR THE FIRS T TIME, OUGHT TO HAVE FIRSTLY CALLED FOR A REMAND REPORT AS ENVISAGED UNDER RULE 46A OF THE RU LES BEFORE ADMITTING ADDITIONAL EVIDENCE/EVIDENCE; AND AFTER ADMISSION OF EVIDENCE AS PER LAW, HAS TO AGAIN CALL FOR REPORT FROM AO ON THE MERITS OF THE DOCUMENTS PRESENTED BE FORE HIM, WHICH EXERCISE THE LD CIT(A) HAS NOT ADMITTEDLY CARRIED OUT IN THIS CASE BEFORE ADJUDICATING THE APPEAL. THOUGH THE REVENUE HAS NOT RAISED IN ITS GROUNDS, THE ISSU E OF VIOLATION OF RULE 46A OF THE RULES, THE LD. DR RAISED IT AS A LEGAL ISSUE OF LD. CIT(A) NO T FOLLOWING THE RULE 46A, WHICH OMISSION ACCORDING TO US ITSELF VITIATES THE ORDER OF THE LD. CIT(A), THEREFORE, IN THE INTEREST 3 ITA NO. 1782/KOL/2016 SCOPE VYAPAAR PVT. LTD., AY 2012-13 OF JUSTICE AND FAIR PLAY, WE ARE INCLINED TO SET AS IDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR FRESH ASSESSM ENT AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIREC TED TO PRODUCE ALL DOCUMENTS NECESSARY TO PROVE ITS IDENTITY, CREDITWORTHINESS AND GENUINENES S OF THE CREDIT ENTRIES IN ACCORDANCE TO LAW AND THE AO TO FRAME THE ASSESSMENT IN ACCORDANC E TO LAW BY PASSING A SPEAKING ORDER. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 30/11/201 8 SD/- SD/- (J. SUDHAKAR REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30TH NOVEMBER, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT ITO, WARD-11(1), KOLKATA 2 RESPONDENT SCOPE VYAPAAR PVT. LTD., 7/1A, TOPSIA 2 ND LANE, TILJALA, KOLKATA-700 039. 3 4 5 CIT(A)-4, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY