M/s. Pevonia Hotels Pvt. Ltd., , Kolkata V. ITO, Ward - 8(3), , Kolkata

ITA 2130/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0795 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 15-01-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 09-10-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI RAY
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA BEFORE SH. S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 2130/KOL/2018 [ASSESSMENT YEAR: 2012-13 ] M / S. PEVONIA HOTELS PVT. LTD., C/O. K.N. GUPTA & ASSOCIATES, 37A, BENTINCK STREET, R.NO.414, 4 TH FLOOR, KOLKATA-700 069. PAN- AAGCP 2366 P VS ITO, WARD - 8(3), KOLKATA , AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA- 700 069. (APPELLANT) (RESPONDENT) APPELLANT BY SH. RAJEEVA KUMAR , ADV. RESPONDENT BY SH. DHRUBAJY OTI RAY, JCIT . DATE OF HEARING 15 . 01.2020 DATE OF PRONOUNCEMENT 10 .06.2020 ORDER PER SH. S.S.GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR AY 2012-13 ARISES AGAINST THE ORDER DATED 05.09.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-3, KOLKATA [IN SHORT CIT(A)] IN APPEAL NO.436/CIT(A)-3/WARD-8(3)/15-16/KOL IN PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEE'S SOLE SUBSTANTIVE GRIEVANCE RAISED IN THE INSTANT APPEAL SEEKS TO REVERSE BOTH THE LOWER AUTHORITIES' ACTION TREATING ITS SHARE CAPITAL/PREMIUM AMOUNTING TO 1,10,00,000/- AS UNEXPLAINED CASH CREDITS U/S 68 OF THE ACT. THERE IS NO DISPUTE ABOUT THE BASIC FACT THAT THE ASSESSEE CLAIMED TO HAVE RAISED THE IMPUGNED SHARE CAPITAL PREMIUM FROM TOTAL TWELVE PARTIES. THE AO AS WELL AS THE CIT(A) ARE OF THE VIEW THAT THE SAME ARE ITA NO. 2130/KOL/2018 ASSESSMENT YEAR: 2012-13 M/S. PEVONIA HOTELS PVT. LTD. PAGE | 2 NEITHER GENUINE NOR CREDITWORTHY SO AS TO JUSTIFY THE SAME. THE ASSESSEE'S ONLY CASE BEFORE US DURING THE COURSE OF HEARING IS THAT IT IS READY TO GET ALL THE INVESTOR ENTITIES VERIFIED BY PRODUCING THEIR DIRECTORS BEFORE THE AO IN ONE MORE INNINGS. 3. LD. DR ON THE OTHER HAND HAS SUBMITTED THAT BOTH THE LOWER AUTHORITIES HAVE RIGHTLY ADDED THE IMPUGNED SHARE CAPITAL/PREMIUM AS UNEXPLAINED CASH CREDITS SINCE LACKING GENUINENESS/CREDITWORTHINESS AS PER HON'BLE APEX COURT'S LANDMARK DECISION IN CIT VS. DURGA PRASAD MORE (1971) 82 ITR 540 (SC) AND SUMATI DAYAL VS. CIT (1995) 214 ITR 801 (SC) I.E. RELEVANT EVIDENCE HAS BEEN CONSIDERED BY REMOVING BLINKERS GOING BY HUMAN PROBABILITY; RESPECTIVELY. HE FAILS TO DISPUTE THAT NEITHER OF THE LOWER AUTHORITIES' ORDER INDICATES AS TO WHETHER ADEQUATE ATTEMPTS WERE MADE TO VERIFY THE IMPUGNED SHARE CAPITAL/PREMIUM FROM THE INVESTOR PARTIES SIDE DURING SCRUTINY. BE IT AS IT MAY, THE ASSESSEE'S LETTER DATED 15.01.2020 SUBMITTED DURING THE COURSE OF HEARING UNDERTAKES TO PRODUCE ALL THE SHARE SUBSCRIBER COMPANIES BEFORE THE AO. WE KEEP IN MIND ALL THE FOREGOING FACTS AND CIRCUMSTANCES AND ARE OF THE VIEW THAT LARGER INTEREST OF JUSTICE WOULD BE MET IN CASE THE ASSESSEE IS AFFORDED ONE MORE INNINGS TO PRODUCE GENUINENESS/CREDITWORTHINESS OF THE TWELVE COMPANIES THROUGH THEIR DIRECTORS AT ITS OWN RISK & RESPONSIBILITY. THE INSTANT SOLE ISSUE OF UNEXPLAINED CASH CREDITS ADDITION STANDS RESTORED TO THE AO FOR HIS FRESH FACTUAL VERIFICATION THEREFORE. 4. BEFORE PARTING, IT IS NOTED THAT THE ORDER IS BEING PRONOUNCED AFTER NINETY DAYS OF HEARING. HOWEVER, TAKING NOTE OF THE EXTRAORDINARY SITUATION ITA NO. 2130/KOL/2018 ASSESSMENT YEAR: 2012-13 M/S. PEVONIA HOTELS PVT. LTD. PAGE | 3 IN THE LIGHT OF THE COVID-19 PANDEMIC AND LOCKDOWN, THE FOREGOING PERIOD NEEDS TO BE EXCLUDED. FOR COMING TO SUCH A CONCLUSION, WE RELY UPON THE DECISION OF THE CO-ORDINATE BENCH OF THE MUMBAI TRIBUNAL IN THE CASE OF DCIT VS. JSW LIMITED IN ITA NO. 6264/MUM/2018 & 6103/MUM/2018, ASSESSMENT YEAR 2013-14, ORDER DATED 14 TH MAY, 2020 . 5. THIS ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 10.06.2020. SD/- SD/- (A.L. SAINI) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 10.06.2020 BIDHAN COPY FORWARDED TO: 1. APPELLANT - M/S. PEVONIA HOTELS PVT. LTD., C/O. K.N. GUPTA & ASSOCIATES, 37A, BENTINCK STREET, R.NO.414, 4TH FLOOR, KOLKATA-700 069. 2. RESPONDENT - ITO, WARD-8(3), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA- 700 069. 3. CIT(A)-3, KOLKATA. (SENT THROUGH E-MAIL). 4. CIT- 5. CIT(DR), KOLKATA BENCHES, KOLKATA. (SENT THROUGH E-MAIL). TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES