Vishaljoy Vinimay Pvt. Ltd., , Kolkata V. DCIT, Circle - 1(2), Kolkata

ITA 2248/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4771 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 31-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHAUDHURY JCITSRDR
• Assessee Lawyers: SHRU SUBASH AGARWAL
• Keywords: Unexplained cash credit; Application of stay
• Section: 131; 143(3)

Judgement Text

S.A. NO. 10/KOL/2019 (IN ITA NO . 2248/KOL/2018) A.Y. 20 12-2013 VISHALJOY VINIMAY PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER S.A. NO. 10/KOL/2019 (ARISING OUT OF I.T.A. NO. 2248/KOL/2018) ASSESSMENT YEAR: 2012-2013 & I.T.A. NO. 2248/KOL/2018) ASSESSMENT YEAR: 2012-2013 VISHALJOY VINIMAY PVT. LIMITED,.................... ..............APPLICANT/ASSESSEE C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDDHA GIBSON, 1, GIBSON LANE, 2 ND FLOOR, SUITE-213, KOLKATA-700 069 [PAN: AABCV 0357 R] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ...................RESPONDENT CIRCLE-1(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE, FOR THE APPLICANT SHRI ROBIN CHAUDHARY, ADDL. CIT, D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : FEBRUARY 15, 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 15, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- AT THE TIME OF HEARING OF THIS STAY APPLICATION, T HE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE CORRESPONDING A PPEAL OF THE ASSSSEE BEING ITA NO.2248/KOL/2018 INVOLVES A SMALL ISSUE A ND THE SAME ITSELF CAN BE HEARD AND DISPOSED OF ON PRIORITY. THE LD. D .R. HAS ALSO ACCEPTED THIS PRAYER OF THE LD. COUNSEL FOR THE ASSESSEE. AC CORDINGLY, BOTH OF THEM S.A. NO. 10/KOL/2019 (IN ITA NO . 2248/KOL/2018) A.Y. 20 12-2013 VISHALJOY VINIMAY PVT. LIMITED 2 HAVE TAKEN NOTICE AND THE APPEAL OF THE ASSESSEE BE ING ITA NO. 2248/KOL/2018 HAS BEEN HEARD. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF FINANCING. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 29.09.2012 DECLARI NG TOTAL INCOME OF RS.55,31,930/-. DURING THE YEAR UNDER CONSIDERATION , THE ASSESSEE HAD RECEIVED SHARE CAPITAL AMOUNT OF RS.2,00,00,000/- I NCLUDING THE SHARE PREMIUM OF RS.990/- PER SHARE ALTHOUGH THE RELEVANT DETAILS OF THE SHARE SUBSCRIBER COMPANIES WERE FURNISHED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFI CER. THE SUMMONS ISSUED BY THE ASSESSING OFFICER TO THE SAID SHARE S UBSCRIBER COMPANIES UNDER SECTION 131 REMAINED UN-SERVED. THE ASSESSEE ALSO COULD NOT PRODUCE THE SAID SHARE SUBSCRIBER COMPANIES FOR VER IFICATION BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER, THEREFORE , TREATED THE ENTIRE SHARE CAPITAL AND SHARE PREMIUM AMOUNT OF RS.2,00,0 0,000/- AS UNEXPLAINED CASH CREDIT AND AN ADDITION TO THAT EXT ENT WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSME NT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 31.03.2015. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND SINCE THERE WAS NO COMPLIANCE ON T HE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SA ID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DISMISSED T HE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 28.08.2018 PASSED EX-PARTE THEREBY CONFIRMING THE ADDITION MADE BY THE ASSESSI NG OFFICER UNDER SECTION 68. AGGRIEVED BY THE ORDER OF THE LD CIT(AP PEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. S.A. NO. 10/KOL/2019 (IN ITA NO . 2248/KOL/2018) A.Y. 20 12-2013 VISHALJOY VINIMAY PVT. LIMITED 3 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESESE HAS SUBMITTED THAT APPLICATIONS WERE DULY SENT BY THE A SSESSEE SEEKING ADJOURNMENT OF HEARINGS FIXED BEFORE THE LD. CIT(AP PEALS) BY E-MAIL, BUT THE LD. CIT(APPEALS) FAILED TO TAKE COGNIZANCE OF T HE SAME AND DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS IMPUGNED ORDER PASSED EX-PARTE WITHOUT GIVING ANY FURTHER OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. HE HAS ALSO SUBMITTED THAT EVEN THE ASSESSING OFFICE D URING THE COURSE OF ASSESSMENT PROCEEDINGS DID NOT ALLOW SUFFICIENT OPP ORTUNITY TO THE ASSESSEE TO PRODUCE THE CONCERNED SHARE SUBSCRIBER COMPANIES FOR EXAMINATION INSPTIE OF THE FACT THAT THE RELEVANT D ETAILS OF THE SAID SHARE SUBSCRIBER COMPANIES AS REQUIRED BY THE ASSESSING O FFICER WERE DULY FURNISHED BY THE ASSESSEE. HE HAS URGED THAT THIS M ATTER MAY, THEREFORE, BE SENT BACK TO THE ASSESSING OFFICER FOR GIVING ON E MORE OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE CONCERNED SHARE SUBSCRI BER COMPANIES FOR EXAMINATION. SINCE THE LD. D.R. HAS ALSO NOT RAISED ANY OBJECTION IN SENDING THE MATTER BACK TO THE ASSESSING OFFICER, W E SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) AND R ESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH ON MERIT AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE T O PRODUCE THE CONCERNED SHARE SUBSCRIBER COMPANIES FOR EXAMINATIO N. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES, WHILE THE STAY APPLICATIO N OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 15, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 15 TH DAY OF FEBRUARY, 2019 COPIES TO : (1) VISHALJOY VINIMAY PVT. LIMITED, S.A. NO. 10/KOL/2019 (IN ITA NO . 2248/KOL/2018) A.Y. 20 12-2013 VISHALJOY VINIMAY PVT. LIMITED 4 C/O. SUBASH AGARWAL & ASSOCIATES, ADVOCATES, SIDDHA GIBSON, 1, GIBSON LANE, 2 ND FLOOR, SUITE-213, KOLKATA-700 069 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(2), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKA TA, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.