M/s Starpoint Developers Pvt. Ltd., Kolkata V. I.T.O.,Ward-14(4), Kolkata

ITA 2170/KOL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4822 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 21-09-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 19-09-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T P SING
• Assessee Lawyers: BISWESWAR GHOSH
• Keywords: Set aside
• Section: 68

Judgement Text

1 ITA NO. 2170/KOL/2019, M/S STAR POINT DEVELOPER PVT. LTD., AY 2012-13 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI P. M. JAGTAP, VICE PRESIDENT (KZ) & S HRI A. T. VARKEY, JUDICIAL MEMBER ] I.T.A. NO. 2170/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. STAR POINT DEVELOPER PVT. LTD. (PAN: AAQCS5115D) VS . INCOME TAX OFFICER, WARD-14(4), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING (VIRTUAL) 21.09.2021 DATE OF PRONOUNCEMENT 30.09.2021 FOR THE APPELLANT SHRI BISWESWAR GHOSH, ADVOCATE FOR THE RESPONDENT SHRI T. P. SING, CIT, DR ORDER PER SHRI A. T. VARKEY, JM: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINS T THE ORDER OF THE LD. CIT(A)-5, KOLKATA DATED 08.08.2019 FOR AY 2012-13 . 2. AT THE OUTSET, THE LD. AR OF THE ASSESSEE SHRI BISWESWAR GHOSH, ADVOCATE DREW OUR ATTENTION TO THE FACT THAT THE LD. CIT(A) HAS P ASSED AN EX-PARTE ORDER. THOUGH THE LD. AR VEHEMENTLY PLEADED THAT THE MATTER MAY BE RE STORED BACK TO THE AO AND HAS GIVEN UNDERTAKING THAT THEY WILL PRODUCE DIRECTORS OF THE SHARE APPLICANT COMPANIES AS WELL AS THAT OF ASSESSEE COMPANY BEFORE THE AO. HO WEVER, WE NOTE THAT BEFORE THE LD. CIT(A) THERE WAS NO COMPLIANCE DESPITE THE LD. CIT( A) GIVING EIGHT OPPORTUNITIES BY FIXING THE APPEAL OF HEARING. ONLY ONCE THE LD. A.R OF THE ASSESSEE APPEARED BEFORE THE LD. CIT(A) [ON OR BEFORE 13.01.2017] FOR SEEKING AD JOURNMENT AND THEREAFTER THE LD. A.R. DID NOT APPEAR BEFORE THE LD. CIT(A) ON 07.03. 2017 OR THEREAFTER. WE FURTHER NOTE THAT THE APPEAL WAS FIXED BEFORE THE LD. CIT(A) ON EIGHT OCCASIONS FROM 07.11.2016 TO 08.08.2019 I.E. APPROX THREE (3) YEARS AND THE ASSE SSEE DID NOT CARE TO APPEAR BEFORE THE LD. CIT(A) WHICH ACTION OF ASSESSEE CANNOT BE COUNT ENENCED. AND THE AVERMENT OF THE ASSESSEE THAT IT GOT ONLY ONE OPPORTUNITY BEFORE TH E AO IS BELIED BY THE FACT RECORDED BY 2 ITA NO. 2170/KOL/2019, M/S STAR POINT DEVELOPER PVT. LTD., AY 2012-13 THE AO THAT PURSUANT TO THE NOTICE ISSUED BY HIM, T HE ASSESSEES A.R. SHRI K. V. JAISWAL APPEARED FROM TIME TO TIME AND HAS FILED DETAILS AN D DOCUMENTS TO SUBSTANTIATE THE ISSUE OF SHARE CAPITAL AND PREMIUM TO THE TUNE OF RS. 11. 08 CRORES. HOWEVER AFTER CROSS- VERIFICATION OF THE FACTS BORNE OUT OF THE DOCUMENT S SUBMITTED BY THE ASSESSEE, THE AO HAS RECORDED HIS DISSATISFACTION OF THE NATURE AND SOURCE OF THE CREDIT ENTRY TO THE TUNE OF RS. 11.08 CRORES AND MADE ADDITION U/S 68 OF THE AC T. SINCE IT IS AN EX-PARTE ORDER OF THE LD CIT(A), WE ARE INCLINED TO SET ASIDE THE ORD ER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE LD. CIT(A) WITH A DI RECTION THAT THE LD. CIT(A) TO ADJUDICATE THE GROUNDS RAISED BY THE ASSESSEE AFTER CALLING FOR REMAND REPORT FROM THE AO. IN THE REMAND PROCEEDINGS BEFORE THE AO, THE A SSESSEE IS DIRECTED TO PRODUCE THE DIRECTORS OF THE SHARE SUBSCRIBER COMPANIES AS WELL AS THE ASSESSEE COMPANY AND TO PARTICIPATE IN THE ENQUIRY/INVESTIGATION TO PROVE T HE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE SHARE SUBSCRIBERS TO THE TUNE OF RS. 11.08 CR., AS UNDERTAKEN IN THE AFFIDAVIT. AND THEREAFTER THE AO TO CARRY OUT THE I NVESTIGATION/VERIFICATION TO EXAMINE THE NATURE AND SOURCE OF THE CREDIT ENTRY TO THE TU NE OF RS. 11.08 CR. AND THEN TO SUBMIT THE REMAND REPORT BEFORE THE LD. CIT(A) AND THEREAF TER THE LD. CIT(A) TO DECIDE THE APPEAL OF THE ASSESSEE IN ACCORDANCE TO LAW AND AS PER THE DECISION OF THE HONBLE SUPREME COURT AND JURISDICTIONAL HIGH COURT ON THE SUBJECT. 3. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2021. SD/- SD/- (P. M. JAGTAP) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED: 30 TH SEPTEMBER, 2021 JD, SR. PS 3 ITA NO. 2170/KOL/2019, M/S STAR POINT DEVELOPER PVT. LTD., AY 2012-13 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- M/S. STAR POINT DEVELOPER PVT. LTD., D IAMOND HERITAGE, 16, STRAND ROAD, ROOM NO. H-523A, 5 TH FLOOR, KOLKATA-700 001. 2. RESPONDENT ITO, WARD-14(4), KOLKATA. 3. CIT(A)-5, KOLKATA (SENT THROUGH E-MAIL) 4. CIT, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY/DDO ITAT, KOLKATA BENCHES, KOLKATA