Samudra Commotrade Pvt. Ltd., , Kolkata V. ITO, Ward - 1(4) , Kolkata

ITA 2586/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7081 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 27-01-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 11-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHRUBAJYOTI RAY
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit
• Section: 143(3); 48; 13; 68; 148

Judgement Text

ITA NO. 2586/KOL/2018 ASSESSMENT YEAR: 20 09 - 20 10 SAMUDRA COMMOTRADE PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER & DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER I.T.A. NO. 2 5 8 6 /KOL/20 1 8 ASSESSMENT YEAR: 20 09 - 20 1 0 SAMUDRA COMMOTRADE PVT. LIMITED,..... ... ..... .. .. .. ...... . ...... ... .. APPELLANT C/O. MANOJ JAIN, 15B, DR. RAJENDRA PRASAD SARANI, KOLKATA - 700001 [PAN:AA MCS2512G] - VS. - INCOME TAX OFFICER,............................... ......... ... .....................RESPONDENT WARD - 1(4), KOLKATA, AAYAKAR BHAWAN , 7 TH FLOOR, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700069 APPEARANCES BY: SHRI MIRAJ D. SHAH, A.R. , FOR THE APPELLANT SHRI DHRUBAJYOTI RAY, JCIT , FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : JANUARY 2 7 , 20 20 DATE OF PRONOUNCING THE ORDER : 5 T H F E B R U A R Y , 20 20 O R D E R PER SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER : - 1. THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 20 09 - 10 ARISES AGAINST THE CIT(A), 5 , KOLKATAS ORDER DATED 04 - 09 - 2018 PASSED IN CASE NO. 460/CIT(A) - 5/WD - 1(4)/18 - 19/KOL INVOLVING PROCEEDINGS U/S 147/ 143(3) /144/263 OF THE INCOME - TAX ACT, 1961 ( IN SHORT ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE A SSESSEES SOLE SUBSTANTIVE GRIEVANCE CANVASSED IN THE INSTANT PLEADS THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN HOLDING ITS SHARE CAPITAL/PREMIUM AMOUNTING TO ITA NO. 2586/KOL/2018 ASSESSMENT YEAR: 20 09 - 20 10 SAMUDRA COMMOTRADE PVT. LIMITED 2 RS.99,750,000/ - AS UNEXPLAINED CASH CREDITS ON ACCOUNT OF ITS ALLEGED FAILURE IN PROVING IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE INVESTOR PARTIES AS PER H ONBLE A PEX C OURTS JUDGMENTS IN SUMATI DAYAL & DURGAPRASAD MORE REPORTED IN [ (1995) 214 ITR 801(SC) & 82 ITR 540(SC) ]. A PERUSAL OF THE CASE FILE INDICATES THE INSTANT ITS INVOLVE MULTIPLE ROUND OF PROCEEDINGS U/S. 147/143(3)/144 R.W.S 263 OF THE ACT . THIS ASSESSEE IS A COMPANY ENGAGED IN SHARE TRADING BUSINESS . IT FILED ITS RETURN ON 25 - 08 - 2019 DECLARING TOTAL LOSS OF RS. 4478/ - . T HE SAME STOOD ASSESSED. THE ASSESSING AUTHORITY THEN FORMED REASON S TO BELIEVE THAT ASSESSEES TAXABLE INCOME LIABLE TO BE ASSESSED HAD ESCAPED ASSESSMENT. HE THEREFORE INITIATED SECTION 1 48 /147 PROCEEDINGS AND FRAMED RE - ASSESSMENT DT. 13 - 04 - 2012. THE CIT THEN EXERCISED HIS SECTION 263 REVISION JURISDICTION VIDE ORDER DT. 27 - 02 - 2015 AND HELD THAT SINCE THE A SSESSING OFFICER HAD NOT CARRIED OUT NECESSARY INVESTIGATION REGARDING IMPUGNED SHARE CAPITAL /PREMIUM, THE SAID RE - AS S ESSMENT WAS ERRONEOUS CAUSING PREJUDICE TO THE INTEREST OF THE REVENUE. HE THEREFORE DIRECTED THE A SSESSING O FFICER TO CONDUCT AN INDEPEN DENT, DETAILED AND COMPLETE INVESTIGATION REGARDING ASSESSEES INVESTOR PARTIES. 3. WE PROCEED FURTHER TO NOTICE THAT THE ASSESSING AUTHORITY COMPLETED HIS CONSEQUENTIAL ASSESSMENT ON 31 - 03 - 2016 QUASHING THIS TAXPAYERS FAILURE TO PROVE IDENTITY, G ENUINENESS AND CREDITWORTHINESS OF THE INVESTOR PARTIES IN THE LIGHT OF H ONBLE A PEX COURTS JUDGMENTS (SUPRA) TO CONCLUDE THAT SAID SHARE CAPITAL/PREMIUM WAS LIABLE TO BE ADDED AS UNEXPLAINED CASH CREDIT S U/S. 68 OF THE ACT . THE CIT(A) HAS UPHELD THE IMPUGNED ADDITIONS IN HIS LOWER APPELLATE DISCUSSION UNDER CHALLENGE. ITA NO. 2586/KOL/2018 ASSESSMENT YEAR: 20 09 - 20 10 SAMUDRA COMMOTRADE PVT. LIMITED 3 4 . W E HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE RIVAL CONTENTIONS AGAINST AND IN SUPPORT OF THE IMPUGNED SHARE CAPITAL/PREMIUM ADDITION. WE FIND THAT BOTH THE LOWE R AUTHORITIES ACTION REGARDING SHARE CAPITAL/PREMIUM DOES NOT DESERVE TO BE CONCURRED WITH IN PRINCIPLE. THIS IS FOR THE REASON THAT THE PCIT S REVISION DIRECTION S (SUPRA) HAD MADE IT EXPLICITLY CLEAR T O THE ASSESSING OFFICER THAT HE WOULD CONDUCT INDEPENDENT DETAILED AND COMPLETE ENQUIRY (IES) REGARDING GENUINENESS AND CREDITWORTHINESS OF ASSESSEES SHARE CAPITAL/PREMIUM S INVESTOR PARTIES. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO REBUT THE CLINCHING FACT THE IMPUGNED CONSEQUE NTIAL ASSESSMENT INVOKING SEC. 68 UNEXPLAINED CASH CREDITS ADDITION NOWHERE COMPLI ED W I T H THE SAME SINCE THE ASSESSING OFFICER PUT THE ENTIRE ONUS ON THE ASSESSEE TO PROVE FOREGOING ASPECT THAN PROCEEDING INDEPENDENTLY. WE, THEREFORE DEEM IT APPROPRIATE TO RES TORE THE MATTER BACK TO THE ASSESSING AUTHORITY TO RE - EXAMINE THE ENTIRE ISSUE(S) A FRESH GOING BY THE CITS ORIGINAL REVISION DIRECTION S . SUFFICE TO SAY, ASSESSEE WOULD BE AFFORDED ADEQUATE OPPORTUNITY OF HEARING IN CONSEQUENTIAL PROCEEDINGS. 5 . THIS ASSESSEES A PPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS . ORDER PRONOUNC ED IN THE OPEN COURT ON F E B . 0 5 , 20 20 . S D / - S D / - (DR. ARJUN LAL SAINI) ( SATBEER SINGH GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER KOLKATA, THE 5 DAY OF F E B . , 20 20 ITA NO. 2586/KOL/2018 ASSESSMENT YEAR: 20 09 - 20 10 SAMUDRA COMMOTRADE PVT. LIMITED 4 *PP/SPS COPIES TO : (1) SAMUDRA COMMOTRADE PVT. LIMITED, C/O. MANOJ JAIN, 15B, DR. RAJENDRA PRASAD SARANI, KOLKATA - 700001 (2) INCOME TAX OFFICER , WARD - 1(4), KOLKATA, AAYAKAR BHAWAN, 7 TH FLOOR, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700069 ( 3 ) COMMISSIONER OF INCOME TAX (APPEALS) - 5 , KOLKATA ; (4) COMMISSIONER OF INCOME TAX - , KOLKATA ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA .