Smt M/s Sukanya Merchandise Pvt. Ltd., Kolkata V. ITO, WD-6(2), KOLKATA, Kolkata

ITA 291/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0608 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-10-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 26-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G HANGSHING
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit; Opportunity of being heard; Source of fund
• Section: 142(1); 133(6); 68; 148; 263

Judgement Text

1 ITA NO.291/KOL/2016 M/S. SUKANYA MERCHANDISE PVT. LTD., AY 2008-09 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE .., /AND , ) [BEFORE SHRI A. T. VARKEY, JM & SHRI WASEEM AHMED, AM] I.T.A. NO. 291/KOL/2016 ASSESSMENT YEAR: 2008-09 M/S. SUKANYA MERCHANDISE PVT. LTD. (PAN: AABCJ7946C) VS. INCOME-TAX OFFICER, WD-6(2), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 17.10.2017 DATE OF PRONOUNCEMENT 15.12.2017 FOR THE APPELLANT SHRI MIRAJ D. SHAH, AR FOR THE RESPONDENT SHRI G. HANGSHING, CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-2, KOLKATA DATED 07.12.2015 FOR AY 2008-09. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST T HE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.8,06,00,000/- MADE BY THE AO ON ACCOUNT OF ALLEGED UNEXPLAINED CASH CREDIT BY INVOKING THE PROVISIONS OF SEC. 68 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME DECLARING TOTAL INCOME OF RS.2,802/- WHICH WAS PROCESSED U/S. 143(1) OF THE ACT. LATER ON, AO TOOK NOTE THAT THE ASSESSEE HAS BROUGHT TO HIS NOTICE BY FILING A LETTER THAT AN AMOUNT OF RS.10,732/- AS PRELIMINARY EXPENSES RAISED IN THE F ORM OF AUTHORIZED CAPITAL WAS NOT ALLOWABLE AS DEDUCTION. THEREFORE, THE AO REOPENED THE ASSESSMENT, SINCE THE INCOME OF RS.10,732/- HAD ESCAPED ASSESSMENT BY ISSUING NOTIC E U/S. 148 OF THE ACT. LATER, THE 2 ITA NO.291/KOL/2016 M/S. SUKANYA MERCHANDISE PVT. LTD., AY 2008-09 ASSESSMENT WAS PROCESSED U/S. 147/143(3) OF THE ACT BY MAKING ADDITION ON PRELIMINARY EXPENSES WRITTEN OFF OF RS.10,732/-. 4. THE LD. CIT-2, KOLKATA ON PERUSAL OF THE ASSESS MENT RECORD OBSERVED THAT ASSESSEE HAD INFUSED FRESH EQUITY SHARE CAPITAL OF RS.16,12, 000/- ON A PREMIUM OF RS.490/- PER SHARE AND THE ASSESSEE COMPANY RECEIVED RS.8,06,00,000/-. THE LD. CIT NOTED THAT THE AO HAD NOT ISSUED ANY NOTICE U/S. 133(6) OF THE ACT TO THE SUBSCRIBERS OF THE SHARES AND HAD NOT MADE ANY INDEPENDENT ENQUIRY. THE LD. CIT AFTER TA KING NOTE OF THE RACKET UNDER WHICH LARGE NUMBER OF COMPANIES WERE FLOATED IN IDENTICAL MANNER APPARENTLY SHOWING TO HAVE INTRODUCED SHARE CAPITAL AT A HUGE PREMIUM BY ROTAT ING THE UNACCOUNTED MONEY, THE LD. CIT WAS PLEASED TO INVOKE HER REVISIONAL JURISDICTION U /S. 263 OF THE ACT AND SET ASIDE THE ORDER OF THE AO AND DIRECTED THE AO TO INVESTIGATE DEEPLY INTO THE SOURCE OF SOURCE BY GIVING THE FOLLOWING DIRECTION: XXXIV) EXAMINE THE GENUINENESS AND SOURCE OF SHARE CAPITAL, NOT ON A TEST CHECK BASIS, BUT IN RESPECT OF EACH AND EVERY SHAREHOLDER BY CONDUCTING INDEPENDENT ENQUIRY NOT THROUGH THE ASSESSEE. THE BANK ACCOUNT FOR THE ENTIRE PERIOD S HOULD BE EXAMINED IN THE COURSE OF VERIFICATION TO FIND OUT THE MONEY TRAIL OF THE SHA RE CAPITAL. XXXV) FURTHER THE AO SHOULD EXAMINE THE DIRECTORS A S WELL AS EXAMINE THE CIRCUMSTANCES WHICH NECESSITATED THE CHANGE IN DIRECTORSHIP IF AP PLICABLE. HE SHOULD EXAMINE THEM ON OATH TO VERIFY THEIR CREDENTIALS AS DIRECTOR AND REACH A LOGICAL CONCLUSION REGARDING THE CONTROLLING INTEREST. XXXVI) THE AO IS DIRECTED EXAMINE THE SOURCE OF REA LIZATION FROM THE LIQUIDATION OF ASSETS SHOWN IN THE BALANCE SHEET AFTER THE CHANGE OF DIRE CTORS, IF ANY AFTER CONDUCTING THE INQUIRIES & VERIFICATION AS DIRECTED ABOVE, THE AO SHOULD PAS S A SPEAKING ORDER, PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. THE AO AFTER GETTING THE ORDER OF CIT PASSED U/S . 263 OF THE ACT ISSUED NOTICE U/S. 142(1) OF THE ACT DATED 16.08.2013 ASKING THE ASSES SEE COMPANY TO APPEAR AND FURNISH CERTAIN DOCUMENTS ON 29.08.2013. THE AO ACKNOWLEDG ES THAT THE ASSESSEE COMPANY HAD FILED THE LIST OF SHAREHOLDERS FOR WHOM SHARES WERE ALLOTTED; AND THAT THE ASSESSEE HAD FURNISHED THE COPY OF THE FINAL ACCOUNT, INCOME TAX ACKNOWLEDGEMENT, BANK STATEMENT FOR THE RELEVANT PERIOD EVIDENCING THE RECEIPT OF SHARE APPLICATION MONEY FROM THE SHARE APPLICANTS. THE AO NOTES THAT ON PERUSAL OF THE DE TAILS FURNISHED BY THE SHAREHOLDER COMPANIES IT REVEALED THAT MOST OF THE ALLEGED SHAR EHOLDERS OF THE ASSESSEE COMPANY AND THE COMPANY FROM WHERE THE SHAREHOLDER COMPANIES HAVE D ECLARED THEIR SOURCES, AND ALL ARE 3 ITA NO.291/KOL/2016 M/S. SUKANYA MERCHANDISE PVT. LTD., AY 2008-09 HAVING 4 TO 5 COMMON ADDRESSES AND FEW COMMON DIRE CTORS NAMELY, SHRI V. K. JAIN, SHRI VIKASH AGARWAL, SHRI MANOJ MONDAL AND SHRI ROHIT AG ARWAL. THEREAFTER, THE AO NOTES THAT FROM THE DETAILS OF THE ACCOUNTS FILED IN RESP ONSE TO THE NOTICE U/S. 133(6) OF THE ACT, THE SHAREHOLDER COMPANIES DO NOT HAVE ANY ACTIVITIES AS SUCH AND HAVE NO FIXED ASSETS AND RETURN OF INCOME IS ALSO VERY NOMINAL. HE NOTES TH AT THE IMMEDIATE SOURCE OF FUNDS WERE MAINLY FROM TRANSFER FROM ANOTHER COMPANY AS AGAINS T THE SALE OF SHARES. THE AO AFTER VERIFICATION OF THE BANK ACCOUNT FURTHER NOTED THAT IN RESPECT OF SHARE APPLICANT COMPANIES, THE ENTIRE MONEY HAS COME THROUGH SALE PROCEEDS REC EIVED FROM SALE OF SHARES OF ANOTHER SUCH COMPANY ON THE VERY SAME DAY OR IMMEDIATE EARL IER DAY AND THE AVERAGE BALANCE IN THE BANK ACCOUNT WAS VERY NOMINAL. THEREAFTER THE AO IN ORDER TO UNEARTH THE REAL FACT BEHIND THE INVESTMENT MADE BY THE SHARE APPLICANTS TO THE ASSESSEE COMPANY, THE AO SUMMONED VIDE NOTICE DATED 26.02.2014 FOR RECORDING STATEMEN T ON OATH OF THE DIRECTORS OF THE ASSESSEE COMPANY. THE AO HAD REPRODUCED THE SUMMONS ISSUED ON 26.02.2014 AT PAGE 4 OF HIS ORDER. THEREAFTER, THE AO NOTES THAT THE ASSESSEE HAD ASKED FOR ADJOURNMENT TO 14.03.2014 AND SINCE THERE WAS NO COMPLIANCE HE SUMMONED THE D IRECTOR OF THE ASSESSEE COMPANY VIDE SUMMONS DATED 24.03.2014 FOR PERSONAL APPEARANCE AN D RECORDING OF STATEMENT ON OATH ON 26.03.2014. HOWEVER, SINCE NEITHER ANYBODY APPEARE D FROM THE ASSESSEE COMPANY NOR FROM THE INVESTOR COMPANIES, HE CONCLUDED THAT THE SHARE APPLICATION MONEY RECEIVED WITH PREMIUM AMOUNTING TO RS.8,06,00,000/- REMAINS UNEXP LAINED, SO IT WAS ADDED U/S. 68 OF THE ACT. ON APPEAL, THE LD. CIT(A) WAS PLEASED TO CONF IRM THE SAME. AGGRIEVED, THE ASSESSEE IS BEFORE US. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT S UFFICIENT OPPORTUNITY WAS NOT GRANTED TO THE ASSESSEE BY THE AO. ACCORDING TO THE LD. COUNS EL, THE AO INITIALLY ISSUED SUMMONS DATED 16.08.2013 FOR WHICH COMPLIANCE WAS MADE BY THE ASSESSEE IMMEDIATELY BY FILING THE LIST OF SHAREHOLDERS, THE COPY OF FINAL ACCOUNT, I. T. ACKNOWLEDGEMENT, BANK STATEMENT FOR THE RELEVANT PERIOD EVIDENCING THE RECEIPT FOR THE SHARE APPLICATION MONEY ETC. WHICH HAS BEEN ACKNOWLEDGED BY THE AO. HOWEVER, ACCORDING TO THE ASSESSEE, THEREAFTER THE AO DID NOT DO ANYTHING TO FIND FAULT WITH THE DOCUMENTS PR ODUCED BEFORE HIM AND THEREAFTER BECAME 4 ITA NO.291/KOL/2016 M/S. SUKANYA MERCHANDISE PVT. LTD., AY 2008-09 ACTIVE ONLY IN THE FAG END OF FEBRUARY 2014. ACCOR DING TO THE ASSESSEE, THE NOTICE REPRODUCED BY THE AO DATED 26.02.2014 REQUIRED THE DIRECTORS OF THE ASSESSEE COMPANY TO ATTEND ON 06.03.2014 WAS ONLY SERVED UPON IT (ASSES SEE) ON 07.03.2014, THEREFORE, THE ASSESSEE REQUESTED THE AO TO PROVIDE ANOTHER OPPORT UNITY OF HEARING VIDE ITS LETTER DATED 10.03.2014. THEREAFTER, THE AO FIXED THE DATE OF H EARING ON 12.03.2014 VIDE NOTICE DATED 10.03.2014. THE LD. AR BROUGHT TO OUR NOTICE THAT THE ASSESSEE HAD SOUGHT AN ADJOURNMENT VIDE ITS LETTER DATED 12.03.2014 AS ITS DIRECTOR WA S OUT OF STATION TILL 23.03.2014. HOWEVER, THE AO GRANTED ADJOURNMENT ONLY TILL 14.03.2014. T HE LD. AR BROUGHT TO OUR NOTICE THAT THE AO HAD ISSUED SUMMONS TO THE DIRECTOR OF THE ASSESS EE COMPANY DATED 12.03.2014 REQUIRING THEM TO ATTEND ON 19.03.2014. HOWEVER, AS STATED B EFORE THE ASSESSEE COMPANY COULD NOT COMPLY WITH THE AFORESAID DIRECTION AS ITS DIRECTOR S WERE OUT OF STATION TILL 23.03.2014 WHICH WAS ALREADY BROUGHT TO THE NOTICE OF THE AO. IT WA S BROUGHT TO OUR NOTICE THAT THE AO HAS MENTIONED IN HIS ORDER THAT THE DIRECTORS OF THE AS SESSEE COMPANY WAS SUMMONED VIDE NOTICE DATED 24.03.2014 FOR PERSONAL APPEARANCE OF THE DIRECTORS ON 26.03.2014. HOWEVER, THE SAID NOTICE WAS NOT SERVED UPON THEM OR THEY CO ULD HAVE DEFINITELY COMPLIED WITH THE AFORESAID NOTICE OF THE AO. WE NOTE THAT THE REASS ESSMENT ORDER PASSED BY AO, PURSUANT TO THE ORDER PASSED U/S. 263 OF THE ACT BY LD. CIT WAS PASSED ON 26.03.2014, THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT IT DID NOT GET PR OPER OPPORTUNITY TO PLACE THE EVIDENCE BEFORE THE AO TO SATISFY HIM AS TO THE IDENTITY, GE NUINENESS AND CREDITWORTHINESS OF THE SHAREHOLDERS. THEREFORE, THE LD. AR RELIED ON THE ORDER OF (THREE JUDGE BENCH) THE HONBLE SUPREME COURT IN TIN BOX COMPANY VS. CIT (2001) 24 9 ITR 216 (SC) WHEREIN THE HONBLE SUPREME COURT HAS HELD AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF THE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT R EADS THUS : WE WILL STRAIGHTAWAY AGREE WITH THE ASSESSEES SUB MISSION THAT THE INCOME-TAX OFFICER HAD NOT GIVEN TO THE ASSESSEE PROPER OPPORTUNITY OF BEI NG HEARD. THAT THE ASSESSEE COULD HAVE PLACED EVIDENCE BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL IS REALLY OF NO CONSEQUENCE FOR IT IS THE ASSESSMENT ORDER THAT COUNTS. THAT ORDER MUST BE MADE AFTER THE ASSESSEE HAS BEEN GIVEN A RE ASONABLE OPPORTUNITY OF SETTING OUT HIS CASE. WE, THEREFORE, DO NOT AGREE WITH THE TRIBUNAL AND THE HIGH COURT THAT IT WAS NOT NECESSARY TO SET ASIDE THE ORDER OF ASSESSMENT AND REMAND THE MATTER TO THE ASSESSING AUTHORITY FOR FRESH ASSESSMENT AFTER GIVING TO THE ASSESSEE A PROPER OPPORTUNITY OF BEING HEARD. 5 ITA NO.291/KOL/2016 M/S. SUKANYA MERCHANDISE PVT. LTD., AY 2008-09 TWO QUESTIONS WERE PLACED BEFORE THE HIGH COURT, OF WHICH THE SECOND QUESTION IS NOT PRESSED. THE FIRST QUESTION READS THUS : 1. WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS JUSTIFIED IN NOT SETTING ASIDE THE ASSESSMENT ORDER IN SPITE OF A FINDING ARRIVED AT BY IT THAT THE INCOME- TAX OFFICER HAD NOT GIVEN A PROPER OPPORTUNITY OF H EARING TO THE ASSESSEE ? IN OUR OPINION, THERE CAN ONLY BE ONE ANSWER TO THI S QUESTION WHICH IS INHERENT IN THE QUESTION ITSELF : IN THE NEGATIVE AND IN FAVOUR OF THE ASSESSEE. THE APPEALS ARE ALLOWED. THE ORDER UNDER CHALLENGE IS SET ASIDE. THE ASSESSMENT ORDER, THAT OF THE COMMISSIONER (APPEALS) AND OF THE TRIBUNAL A RE ALSO SET ASIDE. THE MATTER SHALL NOW BE REMANDED TO THE ASSESSING AUTHORITY FOR FRESH CO NSIDERATION, AS AFORESTATED. 7. ON THE OTHER HAND, LD. DR VEHEMENTLY OPPOSED THI S PLEA OF THE ASSESSEE AND CONTENDED THAT THE ASSESSEE COMPANY WAS VERY WELL A WARE OF THE REVISIONAL ORDER PASSED BY THE LD. CIT AND SHOULD HAVE BROUGHT ALL EVIDENCE BE FORE THE AO TO SUBSTANTIATE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHARE SUBSC RIBERS. THE AO HAS NOTED THAT THE ASSESSEE DID NOT COOPERATE WITH THE ASSESSMENT PROC EEDINGS AND, THEREFORE, THE ASSESSEE CANNOT BE GIVEN ANOTHER INNINGS. WE NOTE THAT THE LD. CITS EXERCISE OF REVISIONAL JURISDICTION U/S. 263 OF THE ACT SETTING ASIDE THE 147/143 ORDER WAS PASSED IN MARCH,2013. WE NOTE THAT THE LD. CIT INVOKED THE REVISIONAL JUR ISDICTION U/S. 263 OF THE ACT AND FOUND THAT THE ASSESSEE COMPANY IN ITS BALANCE SHEET HAS SHOWN TO HAVE INFUSED EQUITY SHARE CAPITAL OF RS.16,12,000/- ON PREMIUM OF RS.490/- PE R SHARE AND THE COMPANY RECEIVED RS.8,06,00,000/- AND SINCE THE AO HAD NOT ENQUIRED INTO THE SOURCE OF THE SHARE CAPITAL AND PREMIUM INFUSED INTO THE ASSESSEE COMPANY BY VERIFY ING THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHAREHOLDERS, THE LD. CIT F OUND THAT THE AO WHILE DOING ASSESSMENT DID NOT EXERCISE THE ROLE OF INVESTIGATOR AND, THER EFORE, THE ORDER OF AO WAS FOUND TO BE ERRONEOUS SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND DIRECTED THE AO TO MAKE FRESH ASSESSMENT AFTER TAKING INTO CONSIDERATION TH E PERNICIOUS PRACTICE OF CONVERTING BLACK MONEY BY THE MODUS OPERANDI AS DESCRIBED BY THE LD. CIT. WE ALSO NOTE THAT IN THE SAID BACKDROP THE LD. CIT HAS GIVEN CERTAIN GUIDELINES W HICH WE CAN SAY WAS IN ORDER TO FACILITATE A THOROUGH DEEP INVESTIGATION INTO THE C ASE AND FOR THAT WE NOTE THAT THE LD. CIT HAD GIVEN THE FOLLOWING DIRECTIONS: XXXIV) EXAMINE THE GENUINENESS AND SOURCE OF SHARE CAPITAL, NOT ON A TEST CHECK BASIS, BUT IN RESPECT OF EACH AND EVERY SHAREHOLDER BY CONDUCTING INDEPENDENT ENQUIRY NOT THROUGH THE 6 ITA NO.291/KOL/2016 M/S. SUKANYA MERCHANDISE PVT. LTD., AY 2008-09 ASSESSEE. THE BANK ACCOUNT FOR THE ENTIRE PERIOD S HOULD BE EXAMINED IN THE COURSE OF VERIFICATION TO FIND OUT THE MONEY TRAIL OF THE SHA RE CAPITAL. XXXV) FURTHER THE AO SHOULD EXAMINE THE DIRECTORS A S WELL AS EXAMINE THE CIRCUMSTANCES WHICH NECESSITATED THE CHANGE IN DIRECTORSHIP IF AP PLICABLE. HE SHOULD EXAMINE THEM ON OATH TO VERIFY THEIR CREDENTIALS AS DIRECTOR AND REACH A LOGICAL CONCLUSION REGARDING THE CONTROLLING INTEREST. XXXVI) THE AO IS DIRECTED EXAMINE THE SOURCE OF REA LIZATION FROM THE LIQUIDATION OF ASSETS SHOWN IN THE BALANCE SHEET AFTER THE CHANGE OF DIRE CTORS, IF ANY AFTER CONDUCTING THE INQUIRIES & VERIFICATION AS DIRECTED ABOVE, THE AO SHOULD PAS S A SPEAKING ORDER, PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE NOTE THAT THE AO PURSUANT TO THE ORDER OF LD. C IT HAD TAKEN NOTE OF THE DIRECTIONS OF THE LD. CIT AND ISSUED NOTICE U/S. 142(1) DATED 16.08.2013 AND HAS ACKNOWLEDGED THAT THE ASSESSEE HAD FURNISHED THE COPY OF FINAL ACCOUN T, I. T. ACKNOWLEDGEMENT, BANK STATEMENT FOR THE RELEVANT PERIOD EVIDENCING THE RE CEIPT OF SHARE APPLICATION MONEY FROM THE SHARE APPLICANTS. THEREAFTER, THE AO MAKES CERTAIN INFERENCES BASED ON THE LIST OF SHAREHOLDERS AND TAKING NOTE OF THE BANK STATEMENT FURNISHED BY THE ASSESSEE. WE NOTE THAT AFTER THE INITIAL NOTICE DATED 16.08.2013, THEREAFT ER THE AO HAD ISSUED THE NOTICE ON 26.02.2014 WHICH HAS BEEN REPRODUCED AT PAGE 3 OF T HE REASSESSMENT ORDER, WHEREIN AO REQUIRED THE DIRECTORS OF THE ASSESSEE COMPANY TO B E PRESENT BEFORE HIM ON 06.03.2014. HOWEVER, ACCORDING TO THE LD. AR, THE ASSESSEE RECE IVED THE NOTICE ONLY ON 07.03.2014 AND THEREAFTER, THE ASSESSEE REQUESTED THE AO TO PROVID E ANOTHER OPPORTUNITY OF HEARING VIDE ITS LETTER DATED 20.03.2014. THEREAFTER, THE AO FIXED THE DATE OF HEARING ON 12.03.2014 VIDE NOTICE DATED 10.03.2014. SO, ACCORDING TO THE ASSE SSEE COMPANY SINCE THE DIRECTORS WERE NOT IN STATION TILL 23.03.2014, THE LD. AR HAD REQU ESTED FOR ADJOURNMENT TILL THAT TIME. THOUGH THE AO HAS STATED THAT HE HAS ISSUED SUMMONS ON 24.03.2014 TO THE ASSESSEE COMPANY TO PRODUCE THE DIRECTORS OF THE COMPANY BEF ORE HIM ON 26.03.2014, THE ASSESSEE COMPANY CONTENDED THAT IT HAS NOT RECEIVED THE SAID SUMMON AND, THEREFORE, COULD NOT MAKE THE PERSONAL APPEARANCE. THE AO HAS DRAWN ADVERSE CONCLUSION BASICALLY BECAUSE OF NON- APPEARANCE OF THE DIRECTORS OF THE ASSESSEE COMPANY AND THAT OF THE SHAREHOLDER COMPANIES. WE NOTE THAT INITIALLY THE AO STARTED THE ENQUIRY O N 16.08.2013 WHICH WAS COMPLIED BY THE ASSESSEE BY SUBMITTING DOCUMENTS WHICH HAS BEEN ACK NOWLEDGED BY THE AO. THEREAFTER, THE ENQUIRY WAS STARTED ONLY AT THE FAG END OF FEBR UARY 2014 AND THE ASSESSEE COMPANY HAD INFORMED THE AO THAT THEIR DIRECTORS WERE OUT OF ST ATION TILL 23.03.2014. IN THE LIGHT OF THE 7 ITA NO.291/KOL/2016 M/S. SUKANYA MERCHANDISE PVT. LTD., AY 2008-09 AFORESAID FACTS, WE ARE OF THE OPINION THAT THE ASS ESSEE DID NOT GET FAIR OPPORTUNITY TO PRESENT THE EVIDENCES BEFORE THE AO SO, THERE WAS A LACK OF OPPORTUNITY AS AFORESAID, THEREFORE, IT HAS TO GO BACK TO AO. 8. WE ALSO NOTE THAT LD. CIT WHILE SETTING ASIDE TH E ORDER OF THE AO WHICH WAS PASSED U/S. 147/143(3) OF THE ACT, THE LD. CIT GAVE CERTAI N GUIDELINES TO FOLLOW FOR CONDUCTING DEEP INVESTIGATION. WE ALSO NOTE THAT SIMILARLY PL ACED ASSESSEES HAD CHALLENGED THE EXERCISE OF REVISIONAL JURISDICTION U/S. 263 OF THE ACT BEFO RE THIS TRIBUNAL IN THOSE CASES ONE OF IT OF SUBHA LAKSHMI VANIJYA PVT. LTD. VS. CIT IN ITA NO. 1104/KOL/2014 DATED 30.07.2015, WHEREIN THE TRIBUNAL WAS PLEASED TO UPHOLD THE ORDE R PASSED BY THE LD. CIT PASSED U/S. 263 OF THE ACT, WHICH WE LEARN TO HAVE BEEN CONFIRMED B Y THE HONBLE JURISDICTIONAL HIGH COURT AND THE SLP PREFERRED AGAINST THE DECISION OF THE H ONBLE JURISDICTIONAL HIGH COURT HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT. THEREFORE, SIMILAR ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD. WE NOTE THAT THE AO WHILE GIVING EFFECT TO THE CITS 263 ORDER HAS NOTED THAT THE ASSESSEE COMPANY HAS I N FACT FURNISHED THE DOCUMENTS SOUGHT BY HIM TO HIS NOTICE U/S. 142(1) OF THE ACT. HOWEV ER, THE AO TOOK THE ADVERSE VIEW AGAINST THE ASSESSEE ON THE PLEA THAT THE DIRECTORS OF THE ASSESSEE COMPANY AND SHARE SUBSCRIBING COMPANIES HAD NOT APPEARED BEFORE HIM ON 26.03.201 4 AND T AFTER TAKING NOTE THAT NONE APPEARED ON 26.03.2014 CONCLUDED ON THE SAME DAY 2 6.03.2014 THAT ENTIRE AMOUNT OF SHARE APPLICATION MONEY RECEIVED ALONG WITH PREMIUM AMOUN TING TO RS.8,06,00,000/- WHICH HAS REMAINED UNEXPLAINED AND ADDED TO THE INCOME OF TH E ASSESSEE. WE ALSO NOTE THAT THE LD. CIT AFTER LOOKING INTO THE PERNICIOUS PRACTICE OF C ONVERTING BLACK MONEY INTO WHITE MONEY HAS GIVEN THE GUIDELINES TO AO AS TO HOW THE INVEST IGATION SHOULD BE CONDUCTED TO FIND OUT THE SOURCE OF SOURCE. SINCE SIMILAR ORDER OF THE L D. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD BY THE TRIBUNAL AS WELL AS BY THE HONBLE CA LCUTTA HIGH COURT AS WELL AS THE SLP HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT, SIMILA R ORDER OF THE LD. CIT HAS TO BE GIVEN EFFECT TO AS DIRECTED BY THE LD. CIT. WE TAKE NOTE THAT THE LD. CIT WITH HIS EXPERIENCE AND WISDOM HAS GIVEN CERTAIN GUIDELINES IN THE BACKDROP OF BLACK MONEY MENACE SHOULD HAVE BEEN PROPERLY ENQUIRED INTO AS DIRECTED BY HIM. TH E AO OUGHT TO HAVE FOLLOWED THE INVESTIGATING GUIDELINES AND METHOD AS DIRECTED BY HIM TO UNEARTH THE FACTS TO DETERMINE 8 ITA NO.291/KOL/2016 M/S. SUKANYA MERCHANDISE PVT. LTD., AY 2008-09 WHETHER THE IDENTITY, GENUINENESS AND CREDITWORTHIN ESS OF THE SHARE SUBSCRIBERS. WE NOTE THAT THE HONBLE SUPREME COURT IN THREE JUDGES BENC H IN THE CASE OF TIN BOX, (SUPRA), HAS HELD THAT SINCE THERE WAS LACK OF OPPORTUNITY TO TH E ASSESSEE AT THE ASSESSMENT STAGE ITSELF, THE ASSESSMENT NEEDS TO BE DONE AFRESH AND THEREBY REVERSED THE HONBLE HIGH COURT, TRIBUNAL AND CIT(A)S ORDERS AND REMANDED THE MATT ER BACK TO AO FOR FRESH ASSESSMENT. SO, SINCE THERE WAS LACK OF OPPORTUNITY AS AFORESTA TED IT HAS TO GO BACK TO AO. WE ALSO NOTE THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF C IT VS. JANSAMPARK ADVERTISING & MARKETING PVT. LTD. IN ITA NO. 525/2014 DATED 11.03 .2015 WHEREIN AFTER NOTICING INADEQUATE ENQUIRY BY AUTHORITIES BELOW HAVE HELD AS UNDER: 41. WE ARE INCLINED TO AGREE WITH THE CIT(APPEALS) , AND CONSEQUENTLY WITH ITAT, TO THE EXTENT OF THEIR CONCLUSION THAT THE ASSESSEE HEREIN HAD COME UP WITH SOME PROOF OF IDENTITY OF SOME OF THE ENTRIES IN QUESTION. BUT, FROM THIS INF ERENCE, OR FORM THE FACT THAT THE TRANSACTIONS WERE THROUGH BANKING CHANNELS, IT DOES NOT NECESSAR ILY FOLLOWING THAT SATISFACTION AS TO THE CREDITWORTHINESS OF THE PARTIES OR THE GENUINENESS OF THE TRANSACTIONS IN QUESTION WOULD ALSO HAVE BEEN ESTABLISHED. 42. THE AO HERE MAY HAVE FAILED TO DISCHARGE HIS OB LIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. BUT CIT(APPE ALS), HAVING NOTICED WANT OF PROPER INQUIRY, COULD NOT HAVE CLOSED THE CHAPTER SIMPLY B Y ALLOWING THE APPEAL AND DELETING THE ADDITIONS MADE. IT WAS ALSO THE OBLIGATION OF THE F IRST APPELLATE AUTHORITY, AS INDEED OF ITAT, TO HAVE ENSURED THAT EFFECTIVE INQUIRY WAS CARRIED OUT, PARTICULARLY IN THE FACT OF THE ALLEGATIONS OF THE REVENUE THAT THE ACCOUNT STATEME NTS REVEAL UNIFORM PATTERN OF CASH DEPOSITS OF EQUAL AMOUNTS IN THE RESPECTIVE ACCOUNTS PRECEDI NG THE TRANSACTIONS IN QUESTION. THIS NECESSITATED A DETAILED SCRUTINY OF THE MATERIAL SU BMITTED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION148 ISSUED BY THE AO, AS ALSO T HE MATERIAL SUBMITTED AT THE STAGE OF APPEALS, IF DEEMED PROPER BY WAY OF MAKING OR CAUSI NG TO BE MADE A 'FURTHER INQUIRY IN EXERCISE OF THE POWER UNDER SECTION 250(4). HIS APP ROACH NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDER OF ITAT, AND CONSEQUENTLY THAT OF CI T(APPEALS), CANNOT BE APPROVED OR UPHELD.' IN VIEW OF THE AFORESAID ORDER AND IN THE LIGHT OF THE HONBLE SUPREME COURTS DECISION IN TIN BOX COMPANY (SUPRA) AND TAKING INTO CONSIDERATI ON THE FACT THE ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT IN SIMILAR CASES BEING U PHELD UP TO THE LEVEL OF APEX COURT, AND TAKING NOTE OF HONBLE DELHI HIGH COURTS ORDER IN JANSAMPARK ADVERTISING & MARKETING PVT. LTD. (SUPRA), WE SET ASIDE THE ORDER OF THE LD . CIT(A) AND REMAND THE MATTER BACK TO THE 9 ITA NO.291/KOL/2016 M/S. SUKANYA MERCHANDISE PVT. LTD., AY 2008-09 FILE OF AO FOR DE NOVO ASSESSMENT AND TO DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMIS SED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 15TH DECEM BER, 2017 SD/- SD/- (WASEEM AHMED) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 15TH DECEMBER, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT M/S. SUKANYA MERCHANDISE PVT. LTD., 157, RABINDRA SARANI, GROUND FLOOR, ROOM 106, KOLKATA-700 019. 2 RESPONDENT ITO, WARD-6(2), KOLKATA. 3. THE CIT(A) , KOLKATA. 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY