Silkina Commodeal Pvt. Ltd., Kolkata V. ITO, Ward - 5(1), Kolkata, Kolkata

ITA 262/KOL/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8808 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R B MEENA
• Keywords: Unexplained cash credit; Principle of natural justice
• Section: 131; 68

Judgement Text

1 ITA NO. 262/KOL/2016 SILKINA COMMODEAL PVT. LTD., AY 2008-09 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 262/KOL/2016 ASSESSMENT YEAR: 2008-09 SILKINA COMMODEAL PVT. LTD. (PA N: AAECS5627C) VS. INCOME-TAX OFFICER, WD-5(1), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 12.12.2018 DATE OF PRONOUNCEMENT 28.12.2018 FOR THE APPELLANT SHRI SUBASH AGARWAL, ADVOCATE FOR THE RESPONDENT SHRI R. B. MEENA, CIT ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-2, KOLKATA DATED 22.01.2016 FOR AY 2008-09. 2. THE SOLE GROUND OF APPEAL OF ASSESSEE IS AGAINST THE ORDER OF LD. CIT(A) CONFIRMING THE ADDITION MADE BY THE AO OF A SUM OF RS.21,39,80 ,000/- ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. AT THE OUTSET ITSELF, THE LD. AR DREW OUR ATTENT ION TO THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND CONTENDED THAT ON THE STRENGTH O F WRITTEN SUBMISSION, THE LD. CIT(A) HAS DECIDED THE APPEAL WITHOUT HEARING THE LD. AR O F THE ASSESSEE, WHICH ACCORDING TO HIM, IS A VIOLATION OF NATURAL JUSTICE AND HE PLEADS FOR EFFECTIVE HEARING BEFORE THE LD. CIT(A). IT WAS POINTED OUT BY THE LD. AR THAT FROM A PERUSAL O F PAGE 2 OF THE ASSESSMENT ORDER IT IS EVIDENT THAT THE AO HAD ISSUED NOTICE U/S. 131 OF T HE ACT AT THE FAG END OF MARCH, 2014 TO THE ASSESSEE TO PRODUCE ITS DIRECTORS AS WELL AS TH E DIRECTORS OF THE SUBSCRIBED COMPANIES AND 2 ITA NO. 262/KOL/2016 SILKINA COMMODEAL PVT. LTD., AY 2008-09 TO PRODUCE AUTHENTICATED DOCUMENTS IN SUPPORT OF TH E SUBSCRIPTION MADE AND SINCE THE DIRECTORS DID NOT TURN-UP BEFORE THE AO, HE TREATED THE TRANSACTION AS BOGUS AND THEREAFTER HAD PASSED THE REASSESSMENT ORDER ON 30.03.2014 TRE ATING THE FRESH SHARE APPLICATION MONEY OF RS.21,39,80,400/- AS UNACCOUNTED CASH CREDIT IN THE HANDS OF THE ASSESSEE AND ADDED THE SAME IN TERMS OF SECTION 68 OF THE ACT. ON APPEAL, THE LD. CIT(A) HAS CONFIRMED THE ACTION OF AO, ON THE BASIS OF WRITTEN SUBMISSION. THE LD. AR OF ASSESSEE IS AGGRIEVED BY THE ACTION OF LD. CIT(A) IN NOT GRANTING AN OPPORTUNITY TO HEAR HIM, BEFORE ADJUDICATING THE APPEAL. WE NOTE THAT AO HAS SENT NOTICES U/S. 133( 6) OF THE ACT TO ALL THE SHARE APPLICANT COMPANIES AND IN REPLY THE SHARE APPLICANTS HAD FIL ED THE ITR ACKNOWLEDGMENT, FINAL ACCOUNTS, BANK STATEMENTS ETC. ALONG WITH OTHER DET AILS TO PROVE THAT THE TRANSACTIONS ARE GENUINE. SINCE, ACCORDING TO AO, THE ASSESSEE FAILE D TO PRODUCE ITS DIRECTORS AS WELL AS THE DIRECTORS OF THE SUBSCRIBED COMPANIES AND TO PRODUC E AUTHENTICATED DOCUMENTS IN SUPPORT OF THE SHARE SUBSCRIPTION MADE, HE TREATED THE SHARE A PPLICATION MONEY INTRODUCED TO THE TUNE OF RS.21,39,80,400/- AS UNACCOUNTED CASH CREDIT IN THE HANDS OF THE ASSESSEE AND ADDED THE SAME IN TERMS OF SECTION 68 OF THE ACT. ON APPEAL , THE LD. CIT(A) HAVE CONFIRMED THE ACTION OF AO WITHOUT HEARING THE LD. AR AND ONLY ON THE BASIS OF WRITTEN SUBMISSION. ACCORDING TO LD. AR, THE LD. CIT(A) SHOULD HAVE GIV EN A MEANINGFUL HEARING TO THE LD. AR OF THE ASSESSEE WHILE ADJUDICATING THE APPEAL. ACCORDING TO LD. AR, JUSTICE SHOULD NOT ONLY BE DONE, IT MUST BE SEEN IT BE DONE . WE NOTE THAT SINCE THE EFFECTIVE HEARING DID NO T TAKE PLACE AS CONTENDED BY THE LD. AR OF THE ASSESS EE BEFORE THE LD. CIT(A), IN THE INTEREST OF JUSTICE AND FAIR PLAY FOR BOTH PARTIES, WE SET A SIDE THE ORDER OF LD. CIT(A) AND REMAND THE APPEAL BACK TO HIS FILE FOR FRESH ADJUDICATION. NE EDLESS TO SAY, LD. CIT(A) TO GIVE OPPORTUNITY TO LD. AR OF ASSESSEE AND PASS A SPEAKI NG ORDER. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH DECEMBE R, 2018. SD/- (DR. A. L. SAINI) SD/-(A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28TH DECEMBER, 2018 JD.(SR.P.S.) 3 ITA NO. 262/KOL/2016 SILKINA COMMODEAL PVT. LTD., AY 2008-09 COPY OF THE ORDER FORWARDED TO: 1 APPELLANT SILKINA COMMODEAL PVT. LTD., 1, BONEFIE LD LANE, 3 RD FLOOR, KOLKATA-700 001. 2 RESPONDENT ITO, WARD-5(1), KOLKATA. 3 4 5 CIT(A) -2, KOLKATA (SENT THROUGH E-MAIL) CIT , KOLKATA. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR