Matrix Vyapaar Pvt. Ltd., Kolkata V. ITO, Ward-1(4), Kolkata, Kolkata

ITA 1984/KOL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5865 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 07-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Opportunity of being heard; Source of fund
• Section: 142(1); 131; 68

Judgement Text

ITA NO.1984/KOL/2016 MATRIX VYAPAAR PVT. LTD. A.Y. 2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C KOL KATA [BEFORE HONBLE SHRI S.S.GODARA, JM & DR.A.L.SAIN I, AM ] ITA NO.1984/KOL/2016 ASSESSMENT YEAR : 2008-09 MATRIX VYAPAAR PVT. LTD. -VERSUS- I.T.O., W ARD-1(4) KOLKATA KOLKATA (PAN: AAECM 2846 B) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI MIRAJ D.SHAH, AR FOR THE RESPONDENT: SHRI SAURABH KUMAR, ADDL. CIT, SR.DR DATE OF HEARING : 11.07..2018. DATE OF PRONOUNCEMENT : 20.07.2018. ORDER PER S.S.GODARA, JM: THIS ASSESSEES APPEAL FOR A.Y.2008-09 CALLS INTO QUESTION THE CIT(A)-1, KOLKATAS EX PARTE ORDER DATED 31.08.2016 PASSED I N APPEAL NO.234/CIT(A)-I/KOL/W- 1(4)/2014-15 UPHOLDING THE ASSESSING OFFICERS ACTI ON ADDING ITS SHARE APPLICATION MONEY RECEIVED OF RS.3,08,00,000/- IN ASSESSMENT OR DER DATED 21.03.2014, INVOLVING PROCEEDINGS U/S 143(3)/144/147 AND 263 OF THE INCOM E TAX ACT, 1961 (ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT EMERGES AT THE OUTSET THAT THE CIT (A) LOWER APPELLATE ORDER UNDER CHALLENGE HAS REJECTED THE ASSESSEES APPEAL ON ACCOUNT OF I TS NON APPEARANCE DURING THE LOWER APPELLATE PROCEEDINGS. THE CIT(A) APPEARS TO HAVE F IXED THE LOWER APPEAL FOR HEARING ON 09.12.2015, 18.12.2015 AND 30.08.2016 WHEREIN TH E ASSESSEE DID NOT APPEAR. WE DO NOT FIND ANY SINGLE OBSERVATION IN PARA-3 OF THE CIT(A) S ORDER INDICATING THE SAID NOTICES TO HAVE BEEN ACTUALLY SERVED ON THE TAX PAY ER/APPELLANT. NOR IS THERE ANY ADJUDICATION ON MERITS FORTHCOMING FROM THE LOWER A PPELLATE ORDER AS PER SECTION 250(6) OF THE ACT CONTAINING BOTH POINTS FOR DETERM INATION FOLLOWED BY A DETAILED REASONING. ITA NO.1984/KOL/2016 MATRIX VYAPAAR PVT. LTD. A.Y. 2008-09 2 3. LEARNED COUNSEL INVITES OUR ATTENTION TO THE ASS ESSMENT ORDER AS WELL. THIS APPEARS TO BE THE SECOND ROUND OF PROCEEDINGS BETWE EN THE PARTIES. THE ASSESSING OFFICER HAD EARLIER FRAMED THE ASSESSMENT/RE-ASSESS MENT IN QUESTION ON 07.07.2010 ASSESSING THE TOTAL TAXABLE INCOME TO BE RS.10,630/ -. THE CIT THEREAFTER EXERCISE ITS REVISION JURISDICTION VESTED U/S 263 OF THE ACT IN HIS ORDER DATED 07.07.2010 DIRECTING THE ASSESSING OFFICER TO CONDUCT A THOROUGH ENQUIRY TO EXAMINE THE GENUINENESS AND CREDITWORTHINESS OF THE ASSESSEES SHARE APPLICATIO N/PREMIUM OF RS.3,08,00,000/- RECEIVED DURING THE RELEVANT PREVIOUS YEAR. BOTH PA RTIES ARE FAIR ENOUGH IN INFORMING US THAT THE SAID DIRECTIONS HAD MADE IT CLEAR THAT THE ASSESSING OFFICER WOULD CONDUCT INDEPENDENT ENQUIRY (IES) IN CONSEQUENTIAL PROCEEDI NGS. THE ASSESSING OFFICER THEREAFTER APPEARS TO HAVE PASSED THE ASSESSMENT OR DER DATED 21.03.2014 MAKING THE IMPUGNED ADDITION. HE OBSERVED IN HIS ASSESSMENT OR DER THAT THE RELEVANT NOTICES ISSUED TO SHARE SUBSCRIBERS SEEKING DETAILED BOOKS OF ACCOUNTS, IDENTITY, EXISTENCE, SOURCE OF FUNDS, GENUINENESS AND CREDITWORTHINESS H AD BEEN RECEIVED BACK UNANSWERED. THE ASSESSING OFFICER FURTHER REITERAT ED THE CITS DIRECTIONS PASSED U/S 263 PROCEEDINGS ASKING HIM INTER-ALIA TO EXAMINE SO URCE OF THE SHARE CAPITAL AS WELL AS VARIOUS RECORDS INVOLVED THEREIN TO INFORM THE ASSE SSING AUTHORITY OF THE INVESTOR ENTITIES TO CONDUCT INDEPENDENT ENQUIRIES IN RESPEC T OF PROOF OF THE SHARE CAPITAL IN QUESTION ON THOROUGH BASIS, TO CALL UPON THE ASSES SEE TO IDENTIFY THE SAID PERSONS AND PASS A SPEAKING ORDER TO MAKE THE IMPUGNED ADDITION IN ASSESSEES HANDS. THE CIT(A) HAD ADMITTEDLY UPHELD THE SAME IN HIS ORDER UNDER C HALLENGE PASSED EXPARTE. 4. WE FIND IN THIS BACKDROP OF FACTS THAT NEITHER O F THE LOWER AUTHORITIES IN ASSESSMENT AS WELL AS IN THE APPELLATE PROCEEDINGS HAS COMPLIED WITH THE CITS SECTION 263 DIRECTIONS (SUPRA). IT EMERGES THAT TH E ASSESSING OFFICER HAD SENT SECTION 131 PROCESS TO THE ASSESSEES INVESTOR ENTITIES. HE THEREAFTER MADE THE IMPUGNED ADDITION WITHOUT GOING THROUGH THE CORRESPONDING PA RTICULARS OF THE SAID INVESTORS ON HIS OWN QUOTING THE ASSESSEES AND SAID INVESTORS FAILURE IN SUBSTANTIATING THEIR RESPECTIVE CLAIMS IN SUPPORT OF THE IMPUGNED SHARE APPLICATION/PREMIUM. WE OBSERVE THAT A COORDINATE BENCH OF THIS TRIBUNAL IN M/S. SU KANYA MERCHANDISE PVT. LTD. VS ITO IN THIS BACKDROP OF FACTS ITA NO.291/KOL/2016 DECI DED ON 15.02.2017 RESTORES THE ITA NO.1984/KOL/2016 MATRIX VYAPAAR PVT. LTD. A.Y. 2008-09 3 VERY ISSUE OF GENUINENESS AND CREDITWORTHINESS OF S HARE APPLICATION/PREMIUM ON ACCOUNT OF LOWER AUTHORITIES FAILURE IN ENSURING CO MPLIANCE OF CITS IDENTICAL SECTION 263 DIRECTIONS AS UNDER : 6. IN THE CASE OF M/S. SUKANYA MERCHANDISE PVT. LTD. VS ITO (ITA 291/KOL/2016 DATED 15.12.2017) CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE, A SIMILAR VIEW HAS BEEN TAKEN BY THE CO-ORDINATE BENC H OF THIS TRIBUNAL AND THE SIMILAR ISSUE RELATING TO THE ADDITION MADE UNDER S ECTION 68 ON ACCOUNT OF SHARE CAPITAL CONTRIBUTION BY TREATING THE SAME AS UNEXPL AINED CASH CREDITS IS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE A.O. IN ALM OST SIMILAR SITUATION AFTER RECORDING ITS OBSERVATIONS / FINDINGS AS UNDER: WE NOTE THAT THE AO PURSUANT TO THE ORDER OF LD. CI T HAD TAKEN NOTE OF THE DIRECTIONS OF THE LD. CIT AND ISSUED NOTICE U/S. 14 2(1) DATED 16.08.2013 AND HAS ACKNOWLEDGED THAT THE ASSESSEE HAD FURNISHED TH E COPY OF FINAL ACCOUNT, I. T. ACKNOWLEDGEMENT, BANK STATEMENT FOR THE RELEV ANT PERIOD EVIDENCING THE RECEIPT OF SHARE APPLICATION MONEY FROM THE SHA RE APPLICANTS. THEREAFTER, THE AO MAKES CERTAIN INFERENCES BASED O N THE LIST OF SHAREHOLDERS AND TAKING NOTE OF THE BANK STATEMENT FURNISHED BY THE ASSESSEE. WE NOTE THAT AFTER THE INITIAL NOTICE DA TED 16.08.2013, THEREAFTER THE AO HAD ISSUED THE NOTICE ON 26.02.2014 WHICH HA S BEEN REPRODUCED AT PAGE 3 OF THE REASSESSMENT ORDER, WHEREIN AO REQUIR ED THE DIRECTORS OF THE ASSESSEE COMPANY TO BE PRESENT BEFORE HIM ON 06.03. 2014. HOWEVER, ACCORDING TO THE LD. AR, THE ASSESSEE RECEIVED THE NOTICE ONLY ON 07.03.2014 AND THEREAFTER, THE ASSESSEE REQUESTED THE AO TO PR OVIDE ANOTHER OPPORTUNITY OF HEARING VIDE ITS LETTER DATED 20.03.2014. THERE AFTER, THE AO FIXED THE DATE OF HEARING ON 12.03.2014 VIDE NOTICE DATED 10.03.20 14. SO, ACCORDING TO THE ASSESSEE COMPANY SINCE THE DIRECTORS WERE NOT IN ST ATION TILL 23.03.2014, THE LD. AR HAD REQUESTED FOR ADJOURNMENT TILL THAT TIME . THOUGH THE AO HAS STATED THAT HE HAS ISSUED SUMMONS ON 24.03.2014 TO THE ASSESSEE COMPANY TO PRODUCE THE DIRECTORS OF THE COMPANY BEFORE HIM ON 26.03.2014, THE ASSESSEE COMPANY CONTENDED THAT IT HAS NOT RECEIVED THE SAID SUMMON AND, THEREFORE, COULD NOT MAKE THE PERSONAL APPEARANCE. THE AO HAS DRAWN ADVERSE CONCLUSION BASICALLY BECAUSE OF NON-APPEARANCE OF T HE DIRECTORS OF THE ASSESSEE COMPANY AND THAT OF THE SHAREHOLDER COMPAN IES. WE NOTE THAT INITIALLY THE AO STARTED THE ENQUIRY ON 16.08.2013 WHICH WAS COMPLIED BY THE ASSESSEE BY SUBMITTING DOCUMENTS WHICH HAS BEEN ACKNOWLEDGED BY THE AO. THEREAFTER, THE ENQUIRY WAS STARTED ONLY AT T HE FAG END OF FEBRUARY 2014 AND THE ASSESSEE COMPANY HAD INFORMED THE AO T HAT THEIR DIRECTORS ITA NO.1984/KOL/2016 MATRIX VYAPAAR PVT. LTD. A.Y. 2008-09 4 WERE OUT OF STATION TILL 23.03.2014. IN THE LIGHT OF THE AFORESAID FACTS, WE ARE OF THE OPINION THAT THE ASSESSEE DID NOT GET FAIR O PPORTUNITY TO PRESENT THE EVIDENCES BEFORE THE AO SO, THERE WAS A LACK OF OPP ORTUNITY 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 CERTAIN GUIDELINES TO FOLLOW FOR CONDUCTING DEEP INVESTIGAT ION. WE ALSO NOTE THAT SIMILARLY PLACED ASSESSEES HAD CHALLENGED THE EXERC ISE OF REVISIONAL JURISDICTION U/S. 263 OF THE ACT BEFORE THIS TRIBUN AL 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 UPH OLD THE ORDER PASSED BY THE LD. CIT PASSED U/S. 263 OF THE ACT, WHICH WE LE ARN TO HAVE BEEN CONFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT AND THE SLP PREFERRED AGAINST THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT HAS BEEN 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 THE ASSESSEE COMPANY HAS IN FACT FURNISHED THE DOCUMENTS SOUGHT BY HIM TO HI S NOTICE U/S. 142(1) OF THE ACT. HOWEVER, THE AO TOOK THE ADVERSE VIEW AGAINST THE ASSESSEE ON THE PLEA THAT THE DIRECTORS OF THE ASSESSEE COMPANY AND SHAR E SUBSCRIBING COMPANIES HAD NOT APPEARED BEFORE HIM ON 26.03.2014 AND T AFT ER TAKING NOTE THAT NONE APPEARED ON 26.03.2014 CONCLUDED ON THE SAME DAY 2 6.03.2014 THAT ENTIRE AMOUNT OF SHARE APPLICATION MONEY RECEIVED ALONG WI TH PREMIUM AMOUNTING TO RS.8,06,00,000/- WHICH HAS REMAINED UNEXPLAINED AND ADDED TO THE INCOME OF THE ASSESSEE. WE ALSO NOTE THAT THE LD. C IT AFTER LOOKING INTO THE PERNICIOUS PRACTICE OF CONVERTING BLACK MONEY INTO WHITE MONEY HAS GIVEN THE GUIDELINES TO AO AS TO HOW THE INVESTIGATION SH OULD BE CONDUCTED TO FIND OUT THE SOURCE OF SOURCE. SINCE SIMILAR ORDER OF T HE LD. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD BY THE TRIBUNAL AS WELL AS BY THE HONBLE CALCUTTA HIGH COURT AS WELL AS THE SLP HAS BEEN DIS MISSED BY THE HONBLE SUPREME COURT, SIMILAR 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 BACK DROP OF BLACK MONEY MENACE SHOULD HAVE BEEN PROPERLY ENQUIRED INTO AS D IRECTED BY HIM. THE AO OUGHT TO HAVE FOLLOWED THE INVESTIGATING GUIDELI NES AND METHOD AS DIRECTED BY HIM TO UNEARTH THE FACTS TO DETERMINE W HETHER THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHARE SUBSC RIBERS. WE NOTE THAT THE HONBLE SUPREME COURT IN THREE JUDGES BENCH IN THE CASE OF TIN BOX, (SUPRA), HAS HELD THAT SINCE THERE WAS LACK OF OPPO RTUNITY TO THE ASSESSEE AT ITA NO.1984/KOL/2016 MATRIX VYAPAAR PVT. LTD. A.Y. 2008-09 5 THE ASSESSMENT STAGE ITSELF, THE ASSESSMENT NEEDS T O BE DONE AFRESH AND THEREBY REVERSED THE HONBLE HIGH COURT, TRIBUNAL A ND CIT(A)S ORDERS AND REMANDED THE MATTER BACK TO AO FOR FRESH ASSESS MENT. SO, SINCE THERE WAS LACK OF OPPORTUNITY AS AFORESTATED 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. 525/20 14 DATED 11.03.2015 WHEREIN AFTER NOTICING INADEQUATE ENQUIRY BY AUTHO RITIES 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 T HE ASSESSEE HEREIN HAD COME UP WITH SOME PROOF OF IDENTITY OF SOME OF THE ENTRIES IN QUESTION. BUT, FROM THIS INFERENCE, OR FORM THE FACT THAT THE TRANSACTIONS WERE THROUGH BANKING CHANNELS, IT DOES NOT NECESSARILY F OLLOWING THAT SATISFACTION AS TO THE CREDITWORTHINESS OF THE PART IES OR THE GENUINENESS OF THE TRANSACTIONS IN QUESTION WOULD ALSO HAVE BEE N ESTABLISHED. 42. THE AO HERE MAY HAVE FAILED TO DISCHARGE HIS OB LIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONC LUSION. BUT CIT(APPEALS), HAVING NOTICED WANT OF PROPER INQUIRY , COULD NOT HAVE CLOSED THE CHAPTER SIMPLY BY ALLOWING THE APPEAL AN D 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 ALLEGA TIONS OF THE REVENUE THAT THE ACCOUNT STATEMENTS REVEAL UNIFORM PATTERN OF CA SH DEPOSITS OF EQUAL AMOUNTS IN THE RESPECTIVE ACCOUNTS PRECEDING THE TR ANSACTIONS IN QUESTION. THIS NECESSITATED A DETAILED SCRUTINY OF THE MATERIAL SUBMITTED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SEC TION148 ISSUED BY THE AO, AS ALSO THE MATERIAL SUBMITTED AT THE STAGE OF APPEALS, IF DEEMED PROPER BY WAY OF MAKING OR CAUSING TO BE MADE A 'FU RTHER INQUIRY IN EXERCISE OF THE POWER UNDER SECTION 250(4). HIS APP ROACH NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDER OF ITAT, AND CONSE QUENTLY THAT OF CIT(APPEALS), CANNOT BE APPROVED OR UPHELD.' IN VIEW OF THE AFORESAID ORDER AND IN THE LIGHT OF THE HONBLE SUPREME COURTS DECISION IN TIN BOX COMPANY (SUPRA) AND TAK ING INTO CONSIDERATION THE FACT THE ORDER OF THE LD. CIT PASSED U/S. 263 O F THE ACT IN SIMILAR CASES BEING UPHELD UP TO THE LEVEL OF APEX COURT, AND TAK ING NOTE OF HONBLE DELHI HIGH COURTS ORDER IN JANSAMPARK ADVERTISING & MARK ETING PVT. LTD. (SUPRA), WE SET ASIDE THE ORDER OF THE LD. CIT(A) A ND REMAND THE MATTER BACK ITA NO.1984/KOL/2016 MATRIX VYAPAAR PVT. LTD. A.Y. 2008-09 6 TO THE FILE OF AO FOR DE NOVO ASSESSMENT AND TO DEC IDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. WE, THEREFORE, CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON TH E ISSUE IN DISPUTE AND RESTORE THE MATTER TO THE FILE OF THE A.O. TO DECIDE THE SA ME AFRESH AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD AND AFTER TAKING INTO CONSIDERATION THE ENTIRE EVIDENCE ALREADY AVAILABLE ON RECORD AS WELL AS OTHER DOCUMENTARY EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE IN SUPPORT OF ITS CASE ON THE ISSUE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSE. 5. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO RE BUT THE ABOVE FACTUAL POSITION AS WELL AS CORRESPONDING SIMILAR LEGAL DEVELOPMENTS HEREIN ABOVE. WE THEREFORE RESTORE THE INSTANT LIS AS WELL BACK TO THE ASSESSI NG OFFICER FOR FRESH ADJUDICATION AS PER LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEA RING TO THE ASSESSEE. 6. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTI CAL PURPOSES. O RDER PRONOUNCED IN THE COURT ON 20.07.2016. SD/- SD/- [DR.A.L.SAINI ] [ S.S.GODARA ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20.07.2016. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.MATRIX VYAPAAR PVT. LTD., C/O D.J.SHAH & CO., KAL YAN BHAVAN, 2 ELGIN ROD, KOLKATA-700020. 2. I.T.O., WARD-1 (4), KOLKATA. 3. C.I.T.(A)- 1, KOLKATA 4. C.I.T-1, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, ITAT KOLKATA BENCHES ITA NO.1984/KOL/2016 MATRIX VYAPAAR PVT. LTD. A.Y. 2008-09 7