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

ITA 2088/KOL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7024 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 21-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V K JAIN
• Keywords: Unexplained cash credit; Corroborative evidences
• Section: 195; 131; 68; 144

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 2088 / KOL / 20 17 ASSESSMENT YEAR :2012-13 INCOME TAX OFFICER, WARD-6(1), P-7, CHOWRINGHEE SQUARE, 6 TH FLOOR, KOLKATA-69 V/S . M/S CCOLHUT MARKETING PVT. LTD., 5, CLIVE ROW, KOLKATA-700001 [ PAN NO.AAECC 7664 F ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI A.K. SINGH, CIT-DR /BY RESPONDENT SHRI V.K. JAIN, AR /DATE OF HEARING 18-04-2019 /DATE OF PRONOUNCEMENT 26-04-2019 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2012-13 A RISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-23 KOLKATAS O RDER DATED 03.07.2017 PASSED IN CASE NO.181 CIT(A)-23/WD-6(1)/16-17, INVO LVING PROCEEDINGS U/S 144 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE REVENUES SOLE SUBSTANTIVE GRIEVANCE CANVASS ING IN INSTANT APPEAL SEEKS TO REVERSE THE CIT(A)S ACTION DELETING THE S EC. 68 ADDITION OF UNEXPLAINED CASH CREDITS AMOUNTING TO 252,00,000/- LAC IN THE NATURE OF SHARE CAPITAL / PREMIUM MADE BY THE ASSESSING OFFIC ER IN ASSESSMENT ORDER DATED 13.03.2015. LEARNED CIT-DR VEHEMENTLY CONTEND S DURING THE COURSE OF HEARING THAT THE ASSESSING OFFICER HAD RIGHTLY MADE THE IMPUGNED ADDITION WHICH OUGHT TO HAVE BEEN AFFIRMED IN THE LOWER APPE LLATE PROCEEDINGS. THE ASSESSEE ON THE OTHER HAND FILES BEFORE US A COPY O F ASSESSING OFFICERS ITA NO.2088/KOL/2017 A.Y. 2012-13 ITO WD-6(1), KOL. VS. M/S CCOLHUT MARKETING PVT. LTD. PAGE 2 REMAND REPORT SUBMITTED BEFORE THE CIT(A) HOLDING I TS IMPUGNED SHARE CAPITAL / PREMIUM TO BE WELL IN ORDER AS FOLLOWS:- SUB: REMAND REPORT UNDER RULE 46A OF INCOME TAX ACT , 1961 IN THE CASE OF M/SCOOLHUT MARKETING, PAN - AAECC7664F AND THE ASSE SSMENT YEAR 2012-13 - SUBMISSION THEREOF. ON VERIFICATION OF PAPER BOOK, RECORDS CONTAINING I N RESPECTIVE ASSESSMENT FOLDER IT HAS BEEN OBSERVED THAT NOTICE U/S 142( 1) DATED 27.08.2014 ISSUED BY POST BUT RETURN UNSERVED WITH POST MARK' INSUFFICIENT ADDRESS ', REMINDER FOR COMPLIANCE ISSUED, TO ASSESSEE COMP ANY VIDE LETTER DATED 26.12.2014 WHICH AGAIN RETURN UNS ERVED. SUMMON U/S 131 ISSUED TO DIRECTORS OF ASSESSEE COMP ANY ON 27.01.2015. DATE FIXED FOR PERSONAL ATTENDANCE ALONG WITH BOOKS OF A CCOUNTS WAS ON 06.02.2015. SUMMON NOTICE DATED 27.01.2015 RETURN UNSERVED WITH POSTAL MARK ' MOVED .' ON 12.02.2015 ASSESSEE COMPANY FILED COPY OF AUDITE D BALANCE SHEET, P&L ACCOUNT &ITR. A SHOW CAUSE NOTICE ALSO BEEN ISSUED TO ASSESSEE CO MPANY VIDE LETTER DATED 02.03.2015 BY POST. ASSESSMENT ORDER U/S 144 PASSED ON 13.03.2015. ONE OF THE REASON FOR ADDITION WAS-' THE DIRECTOR O F ASSESSEE COMPANY WERE SAY IN THIS MATTER. THE COMPANY CREDITED THE AMOUNT OF RS. 25200000/- IN ITS ACCOUNT WITHOUT ANY REASON AND LOGIC. THE AMOUNT IS CREATED TO LEGALIZED BLACK MONEY. THE AMOUNT OF SHARE PREMIUM INCLUDING FACE VALUE OF RS. 252000001-FOUND CREDITED TO ITS ACCOUNT ARE UNEXPLAINED. ACCORDINGLY PROVISION OF S ECTION U/S 68 OF INCOME TAX AT, 1961 THE AMOUNT OF RS.25200000/- IS ADDED BACK TO T OTAL INCOME OF THE ASSESSEE COMPANY.' AS PER THE PAPER BOOK INVESTOR COMPANIES SUBMITTED LIST OF DIRECTORS, AUDITED BALANCE SHEET AND P&L ACCOUNT OF INVESTOR COMPANIES, ITR AC KNOWLEDGEMENT IN THE CASE OF INVESTOR COMPANIES, LEDGER, 'SOURCE OF INVESTMENT, AGREEMENT MADE BETWEEN ASSESSEE AND INVESTOR COMPANY IN NON-JUDICIAL PAPER ,COPY OF GAR-7, COPY OF FORM 2 AND COPY OF ALLOTMENT LETTERS. ON CROSS VERIFICATION OF ACCOUNTS MAINTAINED BY INV ESTOR COMPANIES AS AVAILABLE IN PAPER BOOK AND CLAIM OF ALLOTMENT OF EQUITY SHARES AT PREMIUM BY ASSESSEE COMPANY NO DIFFERENCE COULD BE FOUND. AT THE TIME OF EXAMINATION OF 'PAPER BOOK SRI V.K J AIN, FCA SAID THAT COMPANY RECEIVED NO SUMMON AND SHOW CAUSE NOTICE AS REFERRE D IN ASSESSMENT ORDER. IN SUPPORT OF CASE ASSESSEE CITED THE ORDER OF ITA, KOLKATA IN THE CASE OF WELLMAN WACOMA LTD VS DCIT-CIRCLE-8 PRONOUNCED ON 13.04.201 6 (ITA N.282/KOI/2012 & ITA NO. 282/KOL/2012 216 CTR195 (SC). COPY OF ORDER PASSED BY KOLKATA HIGH COURT SAYS IN THE CASE OF CIT VS. ROSEBERRY MERCANTILE(P)LTD DATED 10.01.2011 - ' ON APPEAL THE LEARNED CIT(A) BY FOLLOWING THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS M/S LOVELY EXPORTS PVT. LTD REPORTED IN (2008) 216CTR 195 ALLOWED THE APPEAL BY HOLDING THAT SHARE CAPITAL/PREMIUM OF RS.2400000/- RECEIVED FROM THE I NVESTORS WAS NOT LIABLE TO BE TREATED UNDER SECTION 68 AS UNEXPLAINED CREDITS AND IT SHOULD NOT BE TAXED IN THE HANDS OF THE APPELLANT COMPANY. ON EXAMINATION OF STATEMENT OF ACCOUNTS MAINTAINED BY INVESTOR COMPANIES IT WAS FOUND THAT MOST OF THE INVESTORS HAD SUFFICIENT FUNDS CAPITAL OF MOST OF THE INVESTOR COMPANIES WERE HU GE AND APPLIED IN INVESTMENT IN QUOTED SHARES/UNQUOTED SHARES. INVESTOR COMPANIES DURING FY 2011-12 PURCHASED QU OTED AND UNQUOTED SHARES OF THAN ONE COMPANY. INVESTOR COMPANIES MAINTAINED BOOKS OF ACCOUNTS AND AUDITED BY CA. ITA NO.2088/KOL/2017 A.Y. 2012-13 ITO WD-6(1), KOL. VS. M/S CCOLHUT MARKETING PVT. LTD. PAGE 3 SHARE SUBSCRIBERS WERE REGISTERED COMPANIES UNDER ROC AND PAN HOLDERS. DOCUMENTARY EVIDENCE OF ITR FILED FOUND ENCLOSED IN PAPER BOOK. ON PRIMA FACIA DOCUMENTARY EVIDENCES AS ENCLOSED IN PAPER BOOK IN SUPPORT OF TRANSACTION FOUND IN ORDER. REFERENCE OF DEFICIENCY OF SUPPORTING EVIDENCE ALSO NOT FOUND MENTIONED IN ASSESSMENT ORDER. SD/-L L LEPCHA (L L LEPCHA) ITO, WARD-6 (L), KOLKATA 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. HON'BLE MADRAS HIGH COURTS DECISION (2018) 96 TAXMMN.COM 4 86 SMT. B. JAYALAKSHMI VS. ACIT HOLDS THAT REVENUE IS NOT ENTITLED TO EVEN FILE IT S APPEAL BEFORE TRIBUNAL WHEREIN THE CIT(A) ACCEPTS THE ASSESSING O FFICERS REMAND REPORT SUBMITTED IN TAXPAYERS FAVOUR. MR. SINGH AT THIS S TAGE SUBMITS THAT HOLDING THE REVENUES INSTANT APPEAL TO BE NOT MAINTAINABLE WOU LD DEPRIVE IT FROM AVAILING ITS APPELLATE REMEDY U/S 250(3) OF THE ACT. WE FIND NO MERIT IN REVENUES INSTANT ARGUMENT AS THE HON'BLE MADRAS HIGH COURT H EREINABOVE HAS ALREADY SETTLED THE ISSUE IN ASSESSEES FAVOUR REGARDING MA INTAINABILITY OF REVENUES APPEAL IN SUCH FACTS AND CIRCUMSTANCES. 4. THIS REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 26 /04/2019 SD/- SD/- ( %) (' %) (DR.A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 26 / 04 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WARD-6(1), P-7, CHOWRINGHEE SQ. 6 TH FLOOR, KOLKATA-69 2. /RESPONDENT-M/S CCOLHUT MARKETING PVT. LTD. 5 CLIVE ROW, KOLKATA-001 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ 3,