M/s Goldmoon Commosales Pvt. Ltd., Kolkata V. I.T.O.,Ward-2(4), Kolkata

ITA 2457/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1767 (ITAT-KOLKATA)
• Duration Of Justice: 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 18-11-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Unexplained cash credit; Rule 8D; Set aside
• Section: 143(3); 14A; 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (A), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHRI S.S. GODARA, JM] I.T.A. NO. 2457/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. GOLDMOON COMMOSALES PVT. LTD............................................APPELLANT 10, GANESH CHANDRA AVENUE, 2 ND FLOOR, KOLKATA 700 013. [PAN: AADCG 8534 D] VS ITO, WARD 2(4), KOLKATA...................................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 013. APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SMT. RANU BISWAS, ADDL. CIT, DR APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 06, 2019 DATE OF PRONOUNCING THE ORDER : DECEMBER 06, 2019 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ & HZ) THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 6, KOLKATA DATED 14.10.2016 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF INVESTMENT & TRADING IN SHARE. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ON 29.09.2012. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A SUMMONS U/S 131 OF THE ACT WAS ISSUED BY THE AO TO THE DIRECTOR OF THE ASSESSEE-COMPANY REQUIRING HIM TO PRODUCE THE DIRECTORS OF THE COMPANY WHO HAD CONTRIBUTED TO THE SHARE CAPITAL OF THE ASSESSEE COMPANY TO THE EXTENT OF RS. 1,73,00,000/-. THE SAID SUMMONS ISSUED BY THE AO, HOWEVER, REMAINED UNCOMPLIED WITH. THE AO, THEREFORE, HELD THAT THE PRIMARY 2 I.T.A. NO. 2457/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. GOLDMOON COMMOSALES PVT. LTD. ONUS THAT LAY ON THE ASSESSEE TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE CONCERNED SHARE SUBSCRIBER COMPANIES AND THE GENUINENESS OF THE RELEVANT TRANSACTION WAS NOT DISCHARGED BY THE ASSESSEE. THE ENTIRE SHARE CAPITAL AMOUNT OF RS. 1,73,00,000/- ACCORDINGLY WAS TREATED BY HIM AS UNEXPLAINED CASH CREDIT AND ADDITION TO THAT EXTENT WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 OF THE ACT. HE ALSO MADE A FURTHER ADDITION OF RS. 33,750/- ON ACCOUNT OF DISALLOWANCE U/S 14A READ WITH RULE 8D AND COMPLETED THE ASSESSMENT U/S 143(3) VIDE AN ORDER DATED 27.02.2015. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY COMPLIANCE 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(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION VIDE HIS APPELLATE ORDER DATED 14.10.2019 PASSED EX-PARTE THEREBY CONFIRMING THE ADDITION MADE BY THE AO TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. BESIDES EXPLAINING THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE BEFORE THE LD. CIT(A) BY SUBMITTING THAT THE NOTICES ISSUED BY THE LD. CIT(A) FIXING THE APPEAL FOR HEARINGS WERE NEVER RECEIVED BY THE ASSESSEE, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT PROPER AND SUFFICIENT 3 I.T.A. NO. 2457/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. GOLDMOON COMMOSALES PVT. LTD. OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE EVEN BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO PRODUCE THE DIRECTORS OF THE SHARE SUBSCRIBER COMPANIES FOR EXAMINATION / VERIFICATION. HE HAS SUBMITTED THAT THE ASSESSEE IS IN A POSITION TO PRODUCE THE SAID DIRECTORS ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE FOR EXAMINATION / VERIFICATION BEFORE THE AO AND URGED THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO DO SO BY SENDING THE MATTER BACK TO THE AO. SINCE THE LD. DR HAS ALSO NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE AO FOR PROPER EXAMINATION / VERIFICATION, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND RESTORE THE CASE TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE DIRECTORS OF THE CONCERNED SHARE SUBSCRIBER COMPANIES ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE FOR EXAMINATION / VERIFICATION. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE ASSESSING OFFICER AND EXTEND ALL THE COOPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT EXPEDITIOUSLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH DECEMBER, 2019. SD/- SD/- (S.S. GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 06/12/2019 BISWAJIT, SR. PS 4 I.T.A. NO. 2457/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. GOLDMOON COMMOSALES PVT. LTD. COPY OF ORDER FORWARDED TO: 1. M/S. GOLDMOON COMMOSALES PVT. LTD., 10, GANESH CHANDRA AVENUE, 2 ND FLOOR, KOLKATA 700 013. 2. ITO, WARD 2(4), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA