M/s, Pawan Putra Nirman Pvt. Ltd., Kolkata V. The Pr. CIT, Kolkata -1, Kolkata

ITA 1958/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 1811 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 17-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 06-10-2016
• Court: TRIBUNAL
• Department Lawyers: GOULEN HANGSHING
• Assessee Lawyers: V N PUROHIT
• Keywords: Opportunity of being heard
• Section: 143(3); 147; 68; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI WASE EM AHMED, AM] I.T.A NO. 1958/KOL/20 16 ASSESSMENT YEAR : 2008-0 9 M/S. PAWAN PUTRA NIRMAN PVT. LTD. -VS.- THE PRINCPAL C.I.T., KOLKATA-1 KOLKATA KOLKATA [PAN : AAECP 4378 F] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI V.N.PUR OHIT, FCA FOR THE RESPONDENT : SHRI GOULEN HANGSHING, C IT DATE OF HEARING : 17.04.2017. DATE OF PRONOUNCEMENT : 03.05.2017. ORDER PER N.V.VASUDEVAN, JM THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 11.03.2013 OF C.I.T- KOLKATA-1, KOLKATA PASSED U/S 263 OF THE INCOME TAX ACT, 1961 (ACT) RELATING TO A.Y.2008-09. 2. THE FACTS AND CIRCUMSTANCES UNDER WHICH ORDER U/ S 263 OF THE ACT WAS PASSED BY THE CIT ARE A FOLLOWS :- THE ASSESSEE IS A COMPANY ENGAGED IN THE BUS INESS OF TRADING IN SHARES AND MAKING INVESTMENTS. FOR A.Y. 2008-09, THE ASSESSEE FILED R ETURN OF INCOME ON 03.05.2008 DECLARING TOTAL INCOME OF RS.1,364/-. THE SAME WAS PROCESSED U/S 143(1) OF THE ACT. THEREAFTER PROCEEDING U/S 147 OF THE ACT WAS INITI ATED ON THE GROUND THAT THE ASSESSEES CLAIM FOR DEDUCTION OF A SUM OF RS.40,00 0/- WHICH WAS PAID TO REGISTRAR OF COMPANIES FOR INCREASE IN AUTHORISED CAPITAL WAS CA PITAL EXPENDITURE AND OUGHT TO HAVE BEEN ALLOWED AS DEDUCTION WHILE COMPUTING TOTAL INC OME OF THE ASSESSEE AND TO THAT EXTENT INCOME HAS ESCAPED ASSESSMENT WHICH HAD TO B E BROUGHT TO TAX. THE ASSESSEE ACCEPTED THE PROPOSAL TO DISALLOW THE PROPORTIONATE EXPENDITURE OF RS.8000/- CLAIMED AS 2 ITA NO.1958/KOL/2016 M/S. PAWAN PUTRA NIRMAN PVT. LTD. A.YR.2008-09 2 DEDUCTION IN THE RELEVANT PREVIOUS YEAR. THE AO PAS SED AN ORDER U/S 143(3) R.W.SEC. 147 OF THE ACT DATED 29.04.2010 DETERMINING TOTAL INCOM E OF THE ASSESSEE AT RS.15,764/-. 3. THE CIT IN EXERCISE OF HIS POWERS U/S 263 OF THE ACT PASSED THE IMPUGNED ORDER DIRECTING THE AO TO MAKE THOROUGH ENQUIRIES WITH RE GARD TO RECEIPT OF SHARE CAPITAL AND HUGE SHARE PREMIUM BY THE ASSESSEE DURING THE RELEV ANT PREVIOUS YEAR IN THE LIGHT OF THE PROVISIONS OF SECTION 68 OF THE ACT. ACCORDING TO CIT THE ORDER OF THE AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE BECAUSE THE AO FAILED TO MAKE PROPER ENQUIRIES ON RECEIPT OF SHARE CAPITAL BY THE ASSESSEE WHICH, GIVEN THE FACTS AND CIRCUMSTANCES OF THE CASE CALLED FOR A THOROUGH AND DETAILED EXAMINATION. AGGRIEVED BY THE ORDER OF THE CIT , THE ASSESSEE HAS PREFERRED T HE PRESENT APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS SEEN FROM THE IMPUGNED ORDER THAT THE NOTICE TO THE ASSESSEE IN SEC.263 PROCEEDINGS WERE SERVED BY AFFIXURE AT THE OLD ADDRESS VIZ. NO.11A, MAHARISHI DEBENDRA ROAD, 4 TH FLOOR, KOLKATA-700007. THE NEW ADDRESS OF THE ASSESSEE IS AT 32-A, RAMAKRISHNA SAMADHI ROAD, KOLKATA-700054. IT IS ALSO CLAIMED BY THE ASSESSEE THAT THE ISSUED AND SUBSCRI BED SHARE CAPITAL WAS 148500 EQUITY SHARES OF RS.10/- EACH AT A PREMIUM OF RS.177.20 PS . PER SHARE MAKING IT IN ALL A SUM OF RS.2,78,00,000/- WHEREAS THE CIT IN THE IMPUGNED OR DER HAS STATED THAT THE RECEIPT OF SHARE CAPITAL AND SHARE PREMIUM BY THE ASSESSEE DUR ING THE PREVIOUS YEAR WAS RS.5,45,50,000/-. 5. WE ARE OF THE VIEW THAT IT WOULD BE IN THE INTER EST OF JUSTICE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE TO SET ASIDE THE IMPUGNED ORDER AND DIRECT THE CIT TO PASS A FRESH ORDER AFTER AFFORDING ASSESSEE OPPORTUNITY OF BEING HEARD. WE ORDER ACCORDINGLY AND ALLOW THE APPEAL FOR STATISTICAL PURPOSE. 3 ITA NO.1958/KOL/2016 M/S. PAWAN PUTRA NIRMAN PVT. LTD. A.YR.2008-09 3 6. IN THE RESULT THE APPEAL BY THE ASSESSEE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 03.05.2017. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUD ICIAL MEMBER DATED : 03.05.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1. M/S. PAWAN PUTRA NIRMAN PVT. LTD., VPC, & ASSOCI ATES, CHARTERED ACCOUNTANTS, MERCANTILE BUILDING, E BLOCK, 4 TH FLOOR, 9/12, LALBAZAR STREET, KOLKATA-700001. 2. PR. C.I.T., KOLKATA-1, KOLKATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES