Steelex Electrocast P. Ltd., , Kolkata V. ITO, Ward - 3(2), Kolkata , Kolkata

ITA 304/KOL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1915 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 20-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VENKATRAMA N
• Section: 68

Judgement Text

ITA NO.304/KOL/2018 STEELEX ELECTROCAST PVT.LTD. A. Y.2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC K OLKATA [BEFORE HONBLE SHRI J.SUDHAKAR REDDY, AM] ITA NO.304/KOL/2018 ASSESSMENT YEAR : 2006-07 STEELEX ELECTROCAST PVT. LTD. -VERSUS- I.T. O., WARD-3 (2) KOLKATA KOLKATA (PAN: AAICS9875N) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI SOMNATH GHOSH, ADVOCATE FOR THE RESPONDENT: SHRI S.VENKAT RAMAN, ADDL.CIT DATE OF HEARING : 27.08.2018. DATE OF PRONOUNCEMENT : 30.08.2018. ORDER PER J.SUDHAKAR REDDY, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX-(A)-1, KOLKATA DATED 08 .12.2017 PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT ) RELATING TO A.Y. 2006-07. 2. THE SOLE ISSUE THAT ARISES FOR ADJUDICATION IS ADDITION OF RS.4, 00,000/- U/S 68 OF THE ACT. THE ASSESSEE HAS RECEIVED SHARE APPLICATIO NS MONEY FROM SHRI DAROGA PATHAK, KALAWATI PATHAK, MAHESH KUMAR SHARMA AND BISHNU KUM AR SARAWAYI @ RS.1 LAKH EACH. THE ASSESSEE HAS FURNISHED THE IDENTITY OF TH ESE PERSONS. THESE FOUR SHARE HOLDERS ARE INCOME TAX ASSESSES. THE DETAILS THAT H AVE BEEN FILED BY THE ASSESSEE BEFORE THE REVENUE AUTHORITIES ARE A) COPIES OF TH E SHARE APPLICATIONS DULY SIGNED BY THESE SHAREHOLDERS, B) COMPLETE ADRESS OF THESE PER SONS ALONG WITH THEIR INCOME TAX FILE NUMBERS. THE AMOUNTS WERE RECEIVED BY WAY OF C ROSSED ACCOUNT PAYEE CHEQUE. UNDER THE CIRCUMSTANCES THE ADDITION IN QUESTION CA NNOT BE MADE U/S 68 OF THE ACT IN VIEW OF THE JUDGMENT OF THE JURISDICTIONAL HIGH COU RT OF CALCUTTA IN THE CASE OF CIT VS M/S DATAWARE PRIVATE LIMITED IN ITAT NO.263 OF 2011 GA NO.2856 OF 2011 DATED 21.09.2011 WHEREIN AT PAGE-4 IT IS HELD AS FOLLOWS :- ITA NO.304/KOL/2018 STEELEX ELECTROCAST PVT.LTD. A. Y.2006-07 2 IN OUR OPINION, IN SUCH CIRCUMSTANCES, THE ASSESSI NG OFFICER OF THE ASSESSEE CANNOT TAKE THE BURDEN OF ASSESSING THE PROFIT AND LOSS ACCOUNT OF- THE CREDITOR WHEN ADMITTEDLY THE CREDITOR HIMSELF IS AN INCOME T AX ASSESSEE. AFTER GETTING THE PAN NUMBER AND GETTING THE INFORMATION THAT THE CRE DITOR IS ASSESSED UNDER THE ACT, THE ASSESSING OFFICER SHOULD ENQUIRE FROM THE ASSESSING OFFICER OF THE CREDITOR AS TO THE GENUINENESS OF THE TRANSACTION A ND WHETHER SUCH TRANSACTION HAS BEEN ACCEPTED BY THE ASSESSING OFFICER OF THE C REDITOR BUT INSTEAD OF ADOPTING SUCH COURSE, THE ASSESSING OFFICER HIMSELF COULD NO T ENTER INTO THE RETURN OF THE CREDITOR AND BRAND THE SAME AS UNWORTHY OF CREDENCE . SO LONG IT IS NOT ESTABLISHED THAT THE RETURN SUBMITTED BY THE CREDITOR HAS BEEN REJECTED BY ITS ASSESSING OFFICER, THE ASSESSI NG OFFICER OF THE ASSESSEE IS BOUND TO ACCEPT THE SAME AS GENUINE WHEN THE IDENTI TY OF THE CREDITOR AND THE GENUINENESS OF TRANSACTION THROUGH ACCOUNT PAYEE CH EQUE HAS BEEN ESTABLISHED. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIES O N THE ORDERS OF AO AS WELL AS CIT(A) AND SUBMITS THAT THE SHARE HOLDERS HAVE NOT BEEN PRODUCED BEFORE THE AO. IN MY OPINION NO ADVERSE INFERENCE COULD BE DRAWN AS T HE AO HAD INCOME TAX DETAILS OF ALL THESE SHARE HOLDERS AND HE COULD HAVE VERIFIED THE SAME. IN VIEW OF THE ABOVE DISCUSSION THIS ADDITION OF RS.4 LAKHS IS HEREBY DE LETED. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. O RDER PRONOUNCED IN THE COURT ON 30.08.2018. SD/- [ J.SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 30.08.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.STEELEX ELECTROCAST P.LTD., C/O S.N.GHOSH & ASSOC IATES, ADVOCATES SEBEN BROTHERSLODGE, P.O.BUROSHIBTALA, P.S.CHINSURAH, D IST. HOOGHLY, PIN : 712 105. 2. I.T.O., WARD-3 (2), KOLKATA. 3. C.I.T.(A)- 1, KOLKATA 4. C.I.T-1, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY HEAD OF OFFICE/D.D.O, ITAT KOLKATA BENCHES ITA NO.304/KOL/2018 STEELEX ELECTROCAST PVT.LTD. A. Y.2006-07 3