Ambassador Vincom (P) Ltd., Kolkata V. ITO, Ward - 3(3), Kolkata, Kolkata

ITA 2139/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3335 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 06-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R CHOUDHURY
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit
• Section: 143(3); 131; 68; 6; 263

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 2139 / KOL / 20 17 ASSESSMENT YEAR :2012-13 AMBASSADOR VINCOM (P) LTD., 71, CANNING STREET, 4 TH FLOOR, BLOCK-B, ROOMNO.439, KOLKATA-001 [ PAN NO.AACCA 7868 F ] V/S . INCOME TAX OFFICER, WARD-3(3), P-7, CHORINGHEE SQUARE, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI MIRAJ D SHAH, ADVOCATE /BY RESPONDENT SHRI R. CHOUDHURY ADDL. CIT-DR /DATE OF HEARING 16-08-2018 /DATE OF PRONOUNCEMENT 24-08-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-9 KOLKATAS OR DER DATED 28.02.2017, PASSED IN CASE NO.183/CIT(A)-9/WD-3(3)2016-17/KOL, IN PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT EMERGES AT THE OUTSET THAT ASSESSEES INSTANT APPEAL SUFFERS FROM 63 DAYS DELAY IN FILING. IT HAS PLACED ON RECORD ITS CONDONATION PETITION DATED 06.10.2017 SOLEMNLY AVERRING THE IN-CHARGE PERSONS ILL HEALTH THEREIN ON ACCOUNT OF FEVER, JAUNDICE AND WEAKNESS. RELEVANT M EDICAL CERTIFICATE TO THIS ITA NO.2139/KOL/2017 A.Y. 20 12-13 AMBASSADOR VINCOM (P) LTD. VS. ITO WD-3( 3), KOL. PAGE 2 EFFECT HAS ALSO BEEN ENCLOSED. THE REVENUE VERY FAI R IN NOT DISPUTING CORRECTNESS THEREOF DURING THE COURSE OF HEARING. W E ACCORDINGLY CONDONE THE IMPUGNED DELAY OF 63 DAYS IN FILING THEREFORE SINCE THE SAME NEITHER INTENTIONAL NOR DELIBERATE BUT ON ACCOUNT OF ILL HE ALTH OF ASSESSEES IN-CHARGE PERSON. THE CASE IS NOW TAKEN UP FOR ADJUDICATION O N MERITS 3. IT IS EVIDENT THAT THE CIT(A) HAS PASSED HIS LOW ER APPELLATE ORDER EX PARTE WHILST AFFIRMING THE ASSESSING OFFICERS ACTION TR EATING ITS SHARE CAPITAL AND PREMIUM OF 2,83,59,000/- TO BE UNEXPLAINED CASH CREDITS U/S. 6 8 OF THE ACT. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONTENDS THAT THE ASSESSEE HAD NOT PROVED ITS CASE BY PROVING IDENTIT Y, GENUINENESS AND CREDITWORTHINESS OF THE INVESTORS CONCERNED WHICH M ADE BOTH THE LOWER AUTHORITIES TO ADD THE SAME U/S. 68 OF THE ACT. WE FIND NO MERIT IN THESE SUBMISSIONS. IT IS EVIDENT THAT CIT(A)S FINDINGS N OWHERE DISCUSS EITHER THE ISSUE INVOLVED OR A DETAILED ADJUDICATION ON THE AS SESSEES GRIEVANCE AS CONTEMPLATED U/S. 250(6) OF THE ACT. SAME IS THE FA CTUAL POSITION IN ASSESSMENT ORDER DATED 30.03.2015 AS WELL WHEREIN T HE ASSESSING OFFICER APPEARS TO HAVE BEEN HIGHLY SWAYED BY THE SO-CALLED HEFTY PREMIUM AMOUNT RECEIVED BY THE ASSESSEE FROM ITS INVESTORS FOLLOWE D BY NON-PRODUCTION THEREOF IN THE COURSE OF SCRUTINY IN RESPONSE TO SE CTION 131 NOTICES. THE ASSESSMENT ORDER IN QUESTION MAKES IT CLEAR THAT TH ERE IS NOT EVEN AN IOTA OF DISCUSSION ABOUT ASSESSEES BOOKS AND OTHER DETAILS IN SUPPORT OF ITS SHARE CAPITAL AND PREMIUM FORMING PART OF RECORDS IN THE NATURE OF INCOME TAX RETURNS ACKNOWLEDGEMENTS, BANK STATEMENT, BALANCE-S HEET, PROFIT AND LOSS ACCOUNT(S) OF THE INVESTORS IN ISSUE. WE THEREFORE DEEM IT APPROPRIATE IN THIS BACKDROP OF FACTS THAT LARGER INTEREST WOULD BE MET IN CASE THE INSTANT ISSUE IS RESTORED BACK TO THE ASSESSING OFFICER FOR A FRESH ADJUDICATION AS PER LAW IN LINE WITH THOSE TRIBUNALS LEAD ORDER IN ITA 1104/KOL/2014 DATED 30.07.2015 APPROVING THE CITS SECTION 263 DIRECTIONS TO THE A SSESSING AUTHORITY CONCERNED TO CONDUCT INDEPENDENT ENQUIRY(IES) IN CA SE IF THE SHARE CAPITAL / PREMIUM INVESTORS; UPHELD BY HON'BLE JURISDICTIONAL HIGH COURT AS WELL A HON'BLE ITA NO.2139/KOL/2017 A.Y. 20 12-13 AMBASSADOR VINCOM (P) LTD. VS. ITO WD-3( 3), KOL. PAGE 3 APEX COURT. IT IS MADE CLEAR THAT THE ASSESSING OFF ICER SHALL CONDUCT INDEPENDENT THROUGH INQUIRIES ABOUT THE INVESTORS P ARTIES BY TAKING RECOURSE TO THE RELEVANT PROCEEDINGS IN LINE WITH THE ABOVE JUDICIAL PRECEDENTS. 4. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 24/08/2018 SD/- SD/- ( %) (' %) (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 24 / 08 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-AMBASSADOR VIINCOM (P) LTD., 71, CANNING STREET, 4 TH FLOOR, BLOCK-B, ROOMNO.4 39, KOLKATA-001 2. /RESPONDENT-ITO WARD-3(3), P-7, CHOWRINGHEE SQUARE, KOLKATA-69 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/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,