ITO, Ward-6(1), Kolkata, Kolkata V. M/s Confirm Realbuild Pvt. Ltd., Kolkata

ITA 1883/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1089 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 23-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Assessee Lawyers: M D SHAH
• Section: 68

Judgement Text

1 ITA NO. 1883/KOL/2017 CONFIRM REALBUILD PVT. LTD., AY 2012-13 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VA RKEY, JM] I.T.A. NO. 1883/KOL/2017 ASSESSMENT YEAR: 2012-13 INCOME-TAX OFFICER, WARD-6(1), KOLKATA VS. CONFIRM REALBUILD PVT. LTD. (PAN: AAECC6398Q) APPELLANT RESPONDENT DATE OF HEARING 15.11.2018 DATE OF PRONOUNCEMENT 30.11.2018 FOR THE APPELLANT SHRI SANKAR HALDER, ADDL. CIT, SR . DR FOR THE RESPONDENT SHRI M. D. SHAH, AR. ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE REVENUE IS AGAINST THE ORDER OF THE LD. CIT(A)-23, KOLKATA DATED 02.06.2017 FOR AY 2012-13. 2. AT THE OUTSET ITSELF IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE AO HAD MADE AN ADDITION OF RS.10,96,00,000/- RECEIVED BY THE ASSESSEE ON AC COUNT OF SHARE CAPITAL AND SHARE PREMIUM U/S. 68 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER RE FERRED TO AS THE ACT) WHICH HAS BEEN DELETED BY THE LD. CIT(A) AFTER TAKING NOTE OF THE REMAND REPORT GIVEN BY THE AO AFTER EXAMINING THE DIRECTORS OF THE INVESTOR COMPANY AS WELL AS THAT OF THE ASSESSEE COMPANY AND AFTER EXAMINING DOCUMENTS FILED BEFORE THE AO. THE LD. AR DREW OUR ATTENTION TO THE REMAND REPORT OF THE AO WHICH IS AS UNDER: 2 ITA NO. 1883/KOL/2017 CONFIRM REALBUILD PVT. LTD., AY 2012-13 3 ITA NO. 1883/KOL/2017 CONFIRM REALBUILD PVT. LTD., AY 2012-13 4 ITA NO. 1883/KOL/2017 CONFIRM REALBUILD PVT. LTD., AY 2012-13 5 ITA NO. 1883/KOL/2017 CONFIRM REALBUILD PVT. LTD., AY 2012-13 3. ON PERUSAL OF THE AFORESAID REMAND REPORT, WE NO TE THAT THE CONCLUSION MADE BY THE AO IS THAT HE HAS EXAMINED THE DIRECTORS OF THE ASS ESSEE COMPANY AND THE SHARE-SUBSCRIBING COMPANIES AND AFTER EXAMINATION OF THE DOCUMENTS FI LED BY THE ASSESSEE WHICH WAS PLACED IN THE PAPER BOOK BEFORE HIM, MADE HIM RETURN A FIN DING THAT THERE IS NO INFIRMITY IN THE MATTER RELATED TO GENERAL CRITERIA SET-FOR MODE OF FINANCIAL TRANSACTION, NAMELY IDENTITY OF ENTITY INVOLVED, CREDITWORTHINESS OF INVESTORS AND GENUINENESS OF THE TRANSACTIONS. THE LD. CIT(A) AFTER PERUSAL OF THE REMAND REPORT OF THE AO AND AFTER INDEPENDENTLY EXAMINING THE DOCUMENTS FURNISHED BEFORE HIM, HAS TAKEN A DECIS ION TO DELETE THE ADDITION. WE NOTE THAT U/S. 68 OF THE ACT WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO E XPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT SA TISFACTORY IN THE OPINION OF THE AO, THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. SO, HERE IN THIS CASE, THE ASSESSEE HAS OFFE RED ITS EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OF THE SHARE CAPITAL AND PREMIUM IT COLLECTED BY FURNISHING DETAILS OF SHARE- SUBSCRIBERS, ABOUT THEIR IDENTITY, CREDITWORTHINESS AND GENUINITY OF THE TRANSACTION AND THE AO THOUGH DURING REMAND PROCEEDINGS WAS SATISFIED A BOUT THE NATURE AND SOURCE THEREOF, THEN QUESTION OF ADDITION INVOKING THE DEEMING PROV ISION DOES NOT ARISE. HERE IN THIS CASE, THE AO HAS RECORDED HIS SATISFACTION AS EVIDENT FRO M PERUSAL OF REMAND REPORT [SUPRA] WHICH ACTION OF AO HAS BEEN CONFIRMED BY THE LD. CIT(A). SO, THE ADDITION U/S. 68 OF THE ACT WAS RIGHTLY DELETED BY THE LD. CIT(A). IN THE LIGHT OF THE AFORESAID FACTS AND CIRCUMSTANCES, WE WONDER AS TO HOW THE AO/ITO HAS AGAIN RAISED THIS G ROUND CHALLENGING THE ACTION OF LD. CIT(A) BY PREFERRING AN APPEAL BEFORE US, WHEN HE ( AO) HIMSELF HAS GIVEN A CLEAN CHIT TO THE ASSESSEE COMPANY IN RESPECT TO SHARE CAPITAL AN D PREMIUM COLLECTED BY IT. WE NOTE THAT ASSESSMENT OF A SUBJECT HAS TO BE DONE BY THE AO AN D IN THIS CASE, THE AO HIMSELF AFTER EXAMINING THE DIRECTORS OF THE ASSESSEE COMPANY AS WELL AS THAT OF THE SHARE SUBSCRIBING COMPANIES AND AFTER MAKING ENQUIRIES IN RESPECT OF THE DOCUMENTS FILED BEFORE HIM HAS RECORDED HIS SATISFACTION ABOUT THE NATURE AND SOUR CE OF THE CREDITS FOUND IN THE BOOKS OF THE ASSESSEE WHICH WERE IN THE FORM OF SHARE CAPITAL AS CONVINCING BECAUSE THE ASSESSEE AS ABLE TO DISCHARGE THE ONUS OF PROVING THE IDENTITY, CRE DITWORTHINESS AND GENUINENESS OF THE SHARE CAPITAL. IN SUCH A SCENARIO, THE FILING OF THE APPE AL BY THE AO BEFORE US IS NOTHING BUT AN 6 ITA NO. 1883/KOL/2017 CONFIRM REALBUILD PVT. LTD., AY 2012-13 ABUSE OF THE PROCESS OF LAW WHEN ON ONE HAND HE IS SATISFIED WITH THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE SHARE CAPIT AL INTRODUCED BY THE ASSESSEE AND THEREAFTER AGAIN CHALLENGING IT BEFORE THE TRIBUNAL IS AGAINST THE PRINCIPLE OF ESTOPPEL BECAUSE AO CANNOT BLOW HOT AND COLD AT THE SAME TIM E. THEREFORE, IN THE FACTS AND CIRCUMSTANCES DISCUSSED ABOVE AND AFTER HAVING A L OOK AT THE DOCUMENTS FILED BEFORE US BY THE ASSESSEE TO PROVE THE IDENTITY, CREDITWORTHINES S AND GENUINENESS OF THE TRANSACTION, WE ARE OF THE CONSIDERED OPINION THAT ASSESSEE HAS DIS CHARGED ITS ONUS BY PLACING MATERIALS TO EXPLAIN THE NATURE AND SOURCE OF THE SHARE CAPITAL, THEREFORE, WE FIND NO INFIRMITY IN THE ACTION OF LD. CIT(A) IN DELETING THE ADDITION MADE U/S. 68 OF THE ACT. THEREFORE, WE ARE INCLINED TO DISMISS THIS APPEAL OF THE REVENUE. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 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-6(1), KOLKATA. 2 RESPONDENT M/S. CONFIRM REALBUILD PVT. LTD., 9/12 , LAL BAZAR STREET, MERCANTILE BLDG., 3 RD FLOOR, BLOCK-E, KOLKATA-700 001. 3 4 5 CIT(A)-23, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY