M/s Rachna Dealers(P) Ltd., Kolkata V. ITO, Ward-2(4), Durgapur, Kolkata

ITA 24/KOL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4786 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 06-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RADHESHYAM
• Assessee Lawyers: P K HIMMATSINGHKA
• Keywords: Opportunity of being heard
• Section: 131; 68; 143(3); 14A; 133(6)

Judgement Text

ITA NO. 24/KOL/2017 ASSESSMENT YEAR: 2012-2013 RACHNA DEALERS PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER I.T.A. NO. 24/KOL/2017 ASSESSMENT YEAR: 2012-2013 M/S. RACHNA DEALERS PVT. LIMITED,.................. .......................APPELLANT P.K. HIMMATSINGHKA, 41, B.B. GANGULY STREET, 2 ND FLOOR, KOLKATA-700 012 [PAN: AAFCR 5523 F] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-2(4), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI P.K. HIMMATSINGHKA, A.R, FOR THE APPELLANT SHRI RADHESHYAM, JCIT, SR. D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : FEBRUARY 14, 2019 DATE OF PRONOUNCING THE ORDER : FEBRUARY 14, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-I, KOLKATA DAT ED 31.10.2016 PASSED EX-PARTE DISMISSING THE APPEAL OF THE ASSESS EE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF INVESTMENT AND TRADING IN SHARES. D URING THE YEAR UNDER CONSIDERATION, THE ASSESSEE-COMPANY HAD RECEIVED FR ESH SHARE CAPITAL MONEY INCLUDING SHARE PREMIUM AMOUNTING TO RS.10,00 ,50,000/-. IN ORDER TO VERIFY THE IDENTITY AND CAPACITY OF THE SHARE AP PLICANTS AS WELL AS GENUINENESS OF THE RELEVANT TRANSACTIONS, SUMMONS U NDER SECTION 131 ITA NO. 24/KOL/2017 ASSESSMENT YEAR: 2012-2013 RACHNA DEALERS PVT. LIMITED 2 WAS ISSUED BY THE ASSESSING OFFICER TO THE DIRECTOR OF THE ASSESSEE- COMPANY WITH A REQUEST TO PRODUCE THE DIRECTORS OF THE SHARE SUBSCRIBER COMPANIES. THE ASSESSEE SOUGHT SOME TIME TO COMPLY WITH THE REQUIREMENT OF THE ASSESSING OFFICER, BUT AS THE CA SE WAS GETTING TIME- BARRED THE ASSESSING OFFICER COULD NOT OFFER SUFFIC IENT TIME AS REQUIRED BY THE ASSESSEE. HE ACCORDINGLY PROCEEDED TO HOLD THE ENTIRE SHARE CAPITAL AND SHARE PREMIUM AMOUNT OF RS.10,01,50,000/- AS UN EXPLAINED CASH CREDIT AND AN ADDITION TO THAT EXTENT WAS MADE BY H IM TO THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 68 IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 27.03.2015. HE A LSO MADE A FURTHER ADDITION OF RS.23,665/- ON ACCOUNT OF DISALLOWANCE MADE UNDER SECTION 14A READ WITH RULE 8D. 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 SATISFACTORY CO MPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(APPEALS) DIS MISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 31.10.2 016 PASSED EX-PARTE. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. BESIDES EXPL AINING THE NON- COMPLIANCE ON THE PART OF THE ASSESSEE BEFORE THE L D. CIT(APPEALS), THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NOTICES UNDER SECTION 133(6) WERE ISSUED BY THE ASSESSING OFFICER TO ALL THE SHA RE SUBSCRIBER- COMPANIES AND IN RESPONSE TO THE SAID NOTICES, THE RELEVANT DOCUMENTARY EVIDENCE REQUIRED BY THE ASSESSING OFFICER IN THE F ORM OF THEIR CONFIRMATIONS, INCOME TAX RETURNS, BANK STATEMENTS, SOURCE OF SHARE SUBSCRIPTION, AUDITED BALANCE-SHEET, ETC. WERE DULY FILED BY THEM. HE HAS INVITED OUR ATTENTION TO THE COPIES OF THE SAID DOC UMENTS PLACED AT PAGE ITA NO. 24/KOL/2017 ASSESSMENT YEAR: 2012-2013 RACHNA DEALERS PVT. LIMITED 3 NO. 15 TO 185 OF HIS PAPER BOOK AND SUBMITTED THAT THIS ENTIRE EVIDENCE FILED BY THE SHARE SUBSCRIBER COMPANIES HAS NOT BEE N CONSIDERED BY THE ASSESSING OFFICER. HE HAS CONTENDED THAT SINCE THIS EVIDENCE IS VERY MUCH RELEVANT TO ADJUDICATE THE ISSUE RELATING TO SHARE CAPITAL AND SHARE PREMIUM AMOUNT RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION IN TERMS OF SECTION 68, THE MATTER MA Y BE SENT BACK TO THE ASSESSING OFFICER FOR PASSING THE ASSESSMENT AFRESH AFTER TAKING INTO CONSIDERATION THE SAID EVIDENCE. ALTHOUGH THE LD. D .R. HAS CONTENDED THAT THE MATTER SHOULD BE REMITTED BACK TO THE LD. CIT(A PPEALS) IN VIEW OF HIS IMPUGNED ORDER PASSED EX-PARTE AND NOT TO THE ASSES SING OFFICER, WE FIND THAT THE VOLUMINOUS EVIDENCE FILED BY THE CONCERNED SHARE SUBSCRIBER COMPANIES IS RELEVANT TO DECIDE THE MAIN ISSUE INVO LVED IN THE ASSESSEES CASE AND SINCE THE ASSESSING OFFICER HAS NEITHER DI SCUSSED NOR CONSIDERED THE SAID EVIDENCE, THE MATTER SHOULD APPROPRIATELY BE SENT TO THE ASSESSING OFFICER FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF THE SAID EVIDENCE. WE, THEREFORE, SET ASIDE THE IMPUGNED ORD ER PASSED BY THE LD. CIT(APPEALS) EX-PARTE AND REMIT THE MATTER BACK TO THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER VERIFYING THE RE LEVANT DOCUMENTARY EVIDENCE AND AFTER GIVING THE ASSESSEE PROPER AND S UFFICIENT OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON FEBRUARY 14, 2019. SD/- SD/- (SATBEER SINGH GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 14 TH DAY OF FEBRUARY, 2019 COPIES TO : (1) M/S. RACHNA DEALERS PVT. LIMITED, P.K. HIMMATSINGHKA, 41, B.B. GANGULY STREET, 2 ND FLOOR, KOLKATA-700 012 ITA NO. 24/KOL/2017 ASSESSMENT YEAR: 2012-2013 RACHNA DEALERS PVT. LIMITED 4 (2) INCOME TAX OFFICER, WARD-2(4), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATA , (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.