Eastern Copper Manufaturing Co.Pvt. Ltd., Kolkata V. DCIT, Cir 9(1), Kolkata, Kolkata

ITA 336/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6354 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 17-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMITAV BHATTACHARYA
• Assessee Lawyers: K K CHHAPARIA
• Section: 143(3); 133(6); 131; 68

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NO.336/KOL/2017 ASSESSMENT YEAR:2012-13 EASTERN COPPER MANUFACTURING CO. PVT. LTD. 42/1, STRAND ROAD, 2 ND FLOOR, KOLKAT-700 001 [ PAN NO.AAACE 7015 Q ] / V/S . DCIT, CIRCLE-9(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI K.K. CHHAPARIA, FCA /BY RESPONDENT SHRI AMITAV BHATTACHARYA, ADDL. CIT-DR /DATE OF HEARING 04-06-2018 /DATE OF PRONOUNCEMENT 15-06-2018 /O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 CHALLENGES THE COMMISSIONER OF INCOME TAX (APPEALS)-3, KOLKATAS O RDER DATED 22.12.2016 PASSED EX PARTE IN CASE NO.271/CIT(A)-3/C-9(1)/2015-16, AFFIRMING ASSESSING OFFICERS ACTION MAKING UNEXPLAINED SHARE PREMIUM ADDITION OF 2,00,00,000/- U/S 68 IN ASSESSMENT ORDER DATED 19.03.2015, INVOLVING PROCEE DINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO.336/KOL/2017 A.Y 2012-13 EASTERN COPPER MANUFACTURING CO. LTD VS. DCIT CIR -9(1) KOL. PAGE 2 2. WE NOTICE AT THE OUTSET THAT CIT(A) HAS HIS LOWE R APPELLATE ORDER EX PARTE WHILST AFFIRMING THE IMPUGNED UNEXPLAINED SHARE PRE MIUM ADDITION OF 2,00,00,000/- MADE IN THE COURSE OF ASSESSMENT. THE ASSESSEE HAD CLAIMED TO HAVE RECEIVED THE SAME AT PREMIUM OF 490/- EACH PER SHARE HAVING FACE VALUE OF 10/- EACH DURING THE COURSE OF ASSESSMENT. WE FIND FROM ASSESSMENT ORDER THAT IT HAD SUBMITTED THE RELEVANT LIST OF EIGHT INVESTOR PARTIES IN THE COUR SE OF SCRUTINY. THE ASSESSING OFFICER TOOK RECOURSE TO SECTION 133(6) AND U/S 131 OF THE ACT TO VERIFY CORRECTNESS THEREOF. HE OBSERVED IN ASSESSMENT ORDER THAT THE ASSESSEE HAD FAILED TO PRODUCE SAID PARTIES FOR THE PURPOSE OF VERIFICATION. THE ASSESSING OFFICER THEREAFTER WENT INTO DETAILED DISCUSSION IN VIEW OF HON'BLE APEX COURTS LANDMARK DECISION IN SUMATI DAYAL VS. CIT (1995) 80 TAXMAN 89 (SC) AND CIT VS. DURGA PRASAD MORE (1971) 82 ITR 540 (SC) TO CONCLUDE THAT THE ASSESSEE HAD FAILED TO SATISFY THE RELEVANT GENUINENESS AND CREDITWORTHINESS TEST AS PER THE RELEVANT FACTS OF THE INSTANT CASE. ALL THIS RESULTED IN THE IMPUGNED ADDITION BEING MADE IN ASSESSEES HAND S U/S 68 OF THE ACT. 3. WE NOW ADVERT TO LOWER APPELLATE PROCEEDINGS. TH E CIT(A) OBSERVES IN PARA 2 OF HIS ORDER THAT HE FIXED THE CASE FOR HEARING 29. 11.2016. THE ASSESSEE FILED ADJOURNMENT THEREIN. THE LOWER APPEAL STOOD POSTPON ED HEARING FOR 07.12.2016. THE CIT(A) THEREAFTER RECORDS THAT THE ASSESSEE DID NOT APPEAR MAKING HIM TO CONFIRM THE IMPUGNED ADDITION WITH MUCH A DETAILED DISCUSSION. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL SUBMISSIONS. SUFFICE TO SAY, THE CIT(A) HAS PASSED HIS EX PARTE ORDER AGAIN ST THE ASSESSEE IN CONFIRMING THE IMPUGNED ADDITION. IT HAS COME ON RECORD THAT THE A SSESSEE HAD SOUGHT ADJOURNMENT ON 29.11.2016. THE CIT(A) RECORDS THAT THE ASSESSEE DI D NOT APPEAR THEREAFTER. LEARNED COUNSEL HAS FILED ASSESSEES AUTHORIZED PERSONS AF FIDAVIT SOLEMNLY AVERRING THEREIN THAT HE HAD DULY APPEARED AND SOUGHT ADJOURNMENT ON 07.12.2016 WHICH WAS NOT EVEN RECEIVED IN THE CASE FILE. BE THAT AS IT MAY, WE FI ND THAT THERE IS NO DISCUSSION ON THE RELEVANT EVIDENCE FILED AT THE ASSESSEES BEHEST RU NNING INTO ALMOST 100 PAGES CONTAINING ALL DETAILS OF ITS INVESTORS ENTITIES AS WELL AS LOWER APPELLATE PROCEEDINGS. WE THEREFORE DEEM IT APPROPRIATE TO REMIT THE INSTA NT ISSUE BACK TO THE CIT(A) IN ITA NO.336/KOL/2017 A.Y 2012-13 EASTERN COPPER MANUFACTURING CO. LTD VS. DCIT CIR -9(1) KOL. PAGE 3 LARGER INTEREST OF JUSTICE FOR ADJUDICATION AFRESH AS PER LAW AFTER AFFORDING ADEQUATE OPPORTUNITIES OF HEARING TO ASSESSEE. 5. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTIC AL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 15/06/2018 SD/- SD/- ( &) (( &) (J.SUDHAKAR REDDY) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER *DKP-SR.PS ) - 15/06/2018 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-EASTERN COPPER MANUFACTURING CO.PVT. LTD . 42/1, STRAND ROAD, 2 ND FLOOR, KOLKATA-700001 2. /RESPONDENT-DCIT, CIR-9(1), AAYAKAR BHAWAN, P-7 CHO WRINGHEESQ. KOL-69 3. , - / CONCERNED CIT 4. - - / CIT (A) (E-MAIL) 5. . ((, , , /DR, ITAT, KOLKATA (E-MAIL) 6. 2 / GUARD FILE. BY ORD ER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO ,,