ITO, WD-6(2), KOLKATA, Kolkata V. M/s Lopax Marketing Pvt. Ltd., Kolkata

ITA 33/KOL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6013 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 06-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: S M SURANA
• Section: 131

Judgement Text

I.T.A NO.33/KOL/2016 M/S. LOPAX MARKETING PVT. LTD. ASSESSMENT YEAR: 2008-09 PAGE | 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA BEFORE: SHRI P. M. JAGTAP, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NO.33/KOL/2016 (ASSESSMENT YEAR: 2008-09) ITO, WARD-6(2), KOLKATA APPELLANT VS M/S. LOPAX MARKETING PVT. LTD. RESPONDENT [PAN:AAACL4569Q] FOR THE APPELLANT : SHRI A.K. NAYAK, CIT(DR) FOR THE RESPONDENT : SHRI S. M. SURANA, ADVOCATE. DATE OF HEARING : 07.08.2019 DATE OF PRONOUNCEMENT : 01.10.2019 ORDER SHRI S.S. VISWANETHRA RAVI, JM: THIS APPEAL BY THE REVENUE AGAINST THE ORDER DATED 15.10.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, KOLKATA [CIT(A)] FOR ASSESSMENT YEAR 2008-09. 2. HEARD BOTH THE PARTIES AND PERSUED THE MATERIAL AVAILABLE ON RECORD. IT IS NOTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS SHARE CAPITAL AND PREMIUM. THE CONTENTION OF SHRI A.K. NAYAK, THE LD. DR IS THAT HUGE AMOUNT OF SHARE CAPITAL HAD BEEN BROUGHT TO BOOKS OF THE ASSESSEE AND TO VERIFY THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS, THE ASSESSING OFFICER ISSUED SUMMONS U/S 131 OF THE ACT, BUT, THE SAME WERE RETURNED UN-SERVED BY THE POSTAL AUTHORITY. NO COMPLIANCES WERE MADE ON BEHALF OF THE ASSESSEE OR FROM THE INVESTOR COMPANIES IN COMPLIANCE TO THE SUMMONS ISSUED U/S 131 OF THE ACT. THE CIT(A) ACCEPTED THE CONTENTION OF THE I.T.A NO.33/KOL/2016 M/S. LOPAX MARKETING PVT. LTD. ASSESSMENT YEAR: 2008-09 PAGE | 2 ASSESSEE ONLY REGARDING THE IDENTITY OF THE SHARE SUBSCRIBING COMPANIES FOR TAKING INTO CONSIDERATION THAT ALL THE SHARE APPLICANTS ARE EXISTING TAX ASSESSEES AND SOME OF THEM ARE SUBJECTED TO SCRUTINY ASSESSMENT DURING THE SAME PERIOD ESTABLISHING THE IDENTITY, AUTHENTICITY OF SHARE APPLICANTS. FURTHER HE ACCEPTED THE GENUINENESS OF THE TRANSACTIONS STATING THAT NO ADVERSE FINDINGS BY THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS. FURTHER, HE SUBMITS THAT IN SIMILAR TYPE OF CASES, THIS TRIBUNAL IS REMANDING THE MATTER TO THE FILE OF ASSESSING OFFICER FOR HIS DE NOVO EXAMINATION OF DETAILS OF SHARES OF SUBSCRIBING COMPANIES AND PRAYED TO REMAND THE MATTER TO THE FILE OF ASSESSING OFFICER. 3. SHRI S.M. SURANA, THE LD. AR VEHEMENTLY OPPOSED THE SUBMISSIONS OF LD. DR IN REMANDING THE MATTER TO THE FILE OF ASSESSING OFFICER AND REFERRED TO PAPER BOOK CONSISTING THE DETAILS. THE CONTENTION OF LD. AR IS THAT ALL THESE DETAILS WERE FILED BEFORE THE ASSESSING OFFICER BUT HOWEVER HE DID NOT CHOOSE TO LOOK INTO THE SAME. FURTHER HE REFERRED TO GROUNDS RAISED BY THE REVENUE AND ARGUED THE IDENTITY OF SHARE SUBSCRIBING COMPANIES WERE PROVED BEFORE THE CIT(A) AND THE REVENUE CHALLENGED THE ACTION OF CIT(A) IN RESPECT OF CREDITWORTHINESS AND GENUINENESS OF THE SAID TRANSACTIONS, BUT HOWEVER, HE AGREED FOR REMANDING THE MATTER TO THE FILE OF ASSESSING OFFICER FOR HIS FRESH VERIFICATION IN TERMS OF THE ORDERS OF THIS TRIBUNAL ON SIMILAR ISSUES. 4. IT IS NOTED THAT THERE WAS NO REFERENCE TO ANY OF THE DETAILS FILED BEFORE US RUNNING INTO FOUR VOLUMES AND EACH VOLUME CONTAINING APPROXIMATELY 400 PAGES IN THE ASSESSMENT ORDER. WE FIND THAT ON SIMILAR ISSUES, THIS TRIBUNAL IS REMANDING THE MATTER TO THE FILE OF ASSESSING OFFICER FOR HIS FRESH VERIFICATION OF DETAILS REGARDING THE SHARE SUBSCRIBING COMPANIES TO PROVE THEIR IDENTITY, CREDITWORTHINESS I.T.A NO.33/KOL/2016 M/S. LOPAX MARKETING PVT. LTD. ASSESSMENT YEAR: 2008-09 PAGE | 3 AND GENUINENESS OF THE TRANSACTIONS. TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSIONS OF LD. AR AND DR, WE DEEM IT PROPER TO REMAND THE MATTER TO THE FILE OF ASSESSING OFFICER FOR DE NOVO EXAMINATION. THE ASSESSEE IS AT LIBERTY TO FILE EVIDENCES, IF ANY, IN SUPPORT OF HIS CLAIM. THUS GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.10.2019. SD/- SD/- [P. M. JAGTAP] [S.S. VISWANETHRA RAVI] VICE PRESIDENT JUDICIAL MEMBER DATED :01.10.2019 PLACE : KOLKATA RS, SR.PS COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ITO, WARD-6(2), KOLKATA 2 RESPONDENT M/S. LOPAX MARKETING PVT. LTD., 9/12, LALBAZAR STREET, BLOCK-B, 1 ST FLOOR, KOL-1. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KO LKATA BENCHES, KOLKATA //TRUE COPY// BY ORDER, ASSISTANT REGISTRAR, ITAT, KOLKATA