M/s Nilanjana Tie - Up Pvt Ltd, Kolkata V. I.T.O.,Ward-1(2), Kolkata

ITA 2543/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1133 (ITAT-KOLKATA)
• Duration Of Justice: 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 09-12-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Assessee Lawyers: JOYDEEP CHAKRABORTY B SC L L B
• Keywords: Unexplained cash credit; Set aside
• Section: 143(3); 13; 147; 68; 263

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. 2543/KOL/2019 ASSESSMENT YEAR: 2008-09 M/S. NILANJANA TIE UP PVT. LTD............................................................APPELLANT P-41, PRINCEP STREET, KOLKATA 700 007. [PAN: AACCN 6275 F] VS ITO, WARD 1(2), KOLKATA..................................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE & SHRI JOYDEEP CHAKRABORTY, B.SC. L.L.B. APPEARING ON BEHALF OF THE ASSESSEE. SHRI JAYANTA KHANRA, JCIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : DECEMBER 13, 2019 DATE OF PRONOUNCING THE ORDER : DECEMBER 13, 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) 14, KOLKATA DATED 17.02.2017 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF INVESTMENT IN SHARES. IN THE ASSESSMENT COMPLETED U/S 143(3) READ WITH SECTION 147 VIDE AN ORDER DATED 29.11.2010, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE AO AT RS. 36,740/- AS AGAINST THE INCOME OF RS. 327/- DECLARED BY THE ASSESSEE. THE SAID ASSESSMENT MADE BY THE AO U/S 143(3) READ WITH SECTION 147 WAS SUBSEQUENTLY SET ASIDE BY THE CONCERNED LD. CIT VIDE AN ORDER DATED 06.03.2013 PASSED U/S 263 WITH THE DIRECTION TO EXAMINE 2 I.T.A. NO. 2543/KOL/2019 A.Y. 2008-09 M/S. NILANJANA TIE UP PVT. LTD. THE ISSUE IN RESPECT OF SHARE CAPITAL AND SHARE PREMIUM AGGREGATING TO RS. 13.09 CRORES IN TERMS OF SECTION 68 BY CONDUCTING THE NECESSARY ENQUIRIES AND VERIFICATIONS. AS PER THE DIRECTION OF THE LD. CIT, THE ASSESSEE COMPANY WAS REQUIRED BY THE AO TO PRODUCE THE DIRECTORS OF THE SHARE HOLDING COMPANIES FOR EXAMINATION / VERIFICATION ALONG WITH THE NECESSARY DETAILS AND DOCUMENTS. AS NOTED BY THE AO IN THE ASSESSMENT ORDER, THE ASSESSEE COMPANY HOWEVER FAILED TO COMPLY WITH THE SAID REQUIREMENT AND RESULTANTLY THE NECESSARY ENQUIRY AND VERIFICATION AS DIRECTED BY THE LD. CIT IN THE ORDER U/S 263 COULD NOT BE CARRIED OUT. THE AO ACCORDINGLY TREATED THE ENTIRE SHARE CAPITAL AND SHARE PREMIUM AGGREGATING TO RS. 13.09 CRORES RECEIVED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION AS UNEXPLAINED CASH CREDITS AND ADDITION TO THAT EXTENT WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 IN THE ASSESSMENT COMPLETED U/S 143(3)/263 OF THE ACT VIDE AN ORDER DATED 26.03.2014. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3)/263, OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE COMPANY 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 17.02.2017 PASSED EX- PARTE. 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 3 I.T.A. NO. 2543/KOL/2019 A.Y. 2008-09 M/S. NILANJANA TIE UP PVT. LTD. THE NON-COMPLIANCE BEFORE THE LD. CIT(A) ON THE GROUND OF THE NON- RECEIPT OF THE NOTICES OF HEARING STATED TO BE SENT BY THE OFFICE OF THE LD. CIT(A), THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT PROPER AND SUFFICIENT OPPORTUNITY WAS NOT AFFORDED EVEN BY THE AO TO THE ASSESSEE COMPANY DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO PRODUCE THE DIRECTORS OF THE SHARE HOLDING COMPANIES ALONG WITH THE RELEVANT DETAILS AND DOCUMENTS SO AS TO COMPLY WITH THE DIRECTIONS GIVEN BY THE LD. CIT IN THE ORDER PASSED U/S 263. HE HAS SUBMITTED THAT THE ASSESSEE COMPANY IS IN A POSITION TO PRODUCE THE DIRECTORS OF THE SHARE HOLDING COMPANIES ALONG WITH THE RELEVANT DETAILS AND DOCUMENTS FOR THE VERIFICATION / EXAMINATION OF THE AO AND URGED THAT ONE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE COMPANY TO DO SO BY SENDING THE MATTER BACK TO THE AO. THE LD. DR HAS NOT RAISED ANY OBJECTION FOR SENDING THE MATTER BACK TO THE AO FOR PROPER EXAMINATION / VERIFICATION. THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON- PROSECUTION IS ACCORDINGLY SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH AFTER GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE DIRECTORS OF THE CONCERNED SHARE HOLDING COMPANIES ALONG WITH THE RELEVANT DETAILS AND DOCUMENTS FOR EXAMINATION / VERIFICATION. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE AO AND SHALL EXTEND ALL THE COOPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT AFRESH EXPEDITIOUSLY. 4 I.T.A. NO. 2543/KOL/2019 A.Y. 2008-09 M/S. NILANJANA TIE UP PVT. LTD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH DECEMBER, 2019. SD/- SD/- (S.S. GODARA) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 13/12/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. NILANJANA TIE UP PVT. LTD., P-41, PRINCEP STREET, KOLKATA 700 007. 2. ITO, WARD 1(2), KOLKATA. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA