ITO, Ward - 3(1), Kolkata, Kolkata V. M/s. Zany Bio Tech Pvt. Ltd., Kolkata

ITA 363/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70427 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2013
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 07-03-2012
• Court: TRIBUNAL
• Department Lawyers: SUCHETA CHATTOPADHYAY
• Assessee Lawyers: H N DUBEY
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [BEFORE HONBLE SRI R.C.SHARMA, AM & HONBLE SRI GEORGE MATHAN, JM] ITA NO.363/KOL/2012 ASSESSMENT YEAR : 2005-06 ( APPELLANT ) (RESPONDENT) I.T.O., WARD-3(1), -VS- . M/S.ZANY BIO TECH.PVT. LTD. KOLKATA KOLKATA (PAN:AAACZ 1437 F) FOR THE APPELLANT: SMT.SUCHETA CHATTOPADHYAY, JCIT, SR.DR FOR THE RESPONDENT: SHRI H.N.DUBEY, ADVOCATE DATE OF HEARING : 03.12.2013 DATE OF PRONOUNCEMENT : 03. 12.2013. ORDER PER SHRI GEORGE MATHAN, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. C.I.T.(A)- I, KOLKATA IN APPEAL NO.716/CIT(A)-I/WD-3(1)/08 DATED 23.12.2011 FOR ASSESSMENT YEAR 2005-06. 2. SMT.SUCHETA CHATTOPADHYAY, JCIT,SR.DR REPRESENT ED ON BEHALF OF THE REVENUE AND SHRI H.N.DUBEY, ADVOCATE APPEARED ON BEHALF O F THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LD. DR THAT IN THE COUR SE OF ASSESSMENT IT WAS NOTICED THAT THE ASSESSEE HAD INTRODUCED UNDISCLOSED INCOME IN DISGUISE OF SHARE APPLICATION MONEY. CONSEQUENTLY THE AO HAD ASKED THE ASSESSEE TO PROVE THE GENUINENESS AS ALSO TO PRODUCE THE DETAILS OF THE NEW INVESTORS. IT WAS THE SUBMISSION THAT NO DOCUMENTARY EVIDENCES FOR RECEIVING THE SHARE APPLICATION MONEY BY THE ASSESSEE HAD BEEN PRODUCED NOR WAS ANY EVIDENCE PRODUCED TO PROVE THE IDENTITY OF THE SUBSCRIBERS OR GENUINENESS OF THE RECEIPTS OR THE CREDITWORTHINESS OF THE SUBSCRIBERS. IT WAS THE SUBMISSION THAT ON APPEAL THE ASSESSEE HAD PRODUCED SOME ADDRESSES TO THE LD. CIT(A). IT WAS THE SUBMISSION THAT ON A REMAND REPO RT CALLED FOR FROM THE AO, THE ITA NO.363/KOL/2012 I.T.O., WARD-3(1),KOLKATA VS M/S.ZANY BIO TECH.PVT.LTD. A.YR.2005-06 2 AO HAD MENTIONED THAT THE AO ISSUED 133(6) NOTICES AND SOME OF THE PERSONS HAD REPLIED BUT NONE OF THE PERSONS HAD PRODUCED ANY OF THE DETAILS IN RESPECT OF THE ALLOTMENT OF SHARES OR COPIES OF BANK ACCOUNTS OR P ROOF OF IDENTITY. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD DELETED THE ADDI TION BY SIMPLY HOLDING THAT 133(6) NOTICES HAD BEEN ISSUED AND THERE WAS RESPONSES FRO M THE SHARE APPLICANTS. IT WAS THE SUBMISSION THAT THE IDENTITY NOR THE PROOF OF EXIST ENCE OF THE SHARE APPLICANTS WERE PROVED. IT WAS THE SUBMISSION THAT IN FACT 133(6) N OTICES HAD BEEN RESPONDED TO BY REPLYING IN THE SAME PATTERN BY ALL THE SHARE APPLI CANTS WHICH ITSELF SHOWED DOUBT IN REGARD TO THE IDENTITY AND GENUINENESS OF THE SHARE APPLICANTS. IT WAS THE SUBMISSION THAT ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVER SED AND ALTERNATIVELY THE ISSUE TO BE RESTORED TO THE FILE OF AO FOR RE-ADJUDICATION AND VERIFICATION. 4. IN REPLY THE LD. AR VEHEMENTLY SUPPORTED THE ORD ER OF THE LD. CIT(A). IT WAS THE SUBMISSION THAT THE NOTICE ISSUED U/S 133(6) OF THE ACT HAD BEEN RESPONDED TO BY THE SHARE APPLICANTS. IT WAS THE SUBMISSION THAT THE ON US PUT ON THE ASSESSEE WAS DISCHARGED. IT WAS THE SUBMISSION THAT ORDER OF THE LD. CIT(A) WAS LIABLE TO BE UPHELD. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT THE OUTSET A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT NO EVIDENCE HAD BEEN PRODUCED BY THE ASSESSEE BEFORE THE AO. A PERUSAL OF ORDER OF THE LD. CIT(A) SHOWS THAT EVEN BEFORE THE LD. CIT(A) THE ASSESSEE HAS ONLY PRODUCED SOME NAMES AN D ADDRESSES. ADMITTEDLY REMAND REPORT HAD BEEN CALLED FOR. NOW THE LD. CIT( A) ADMITTED FRESH EVIDENCES WHICH WAS NOT PRODUCED BEFORE THE AO. THE LD. CIT(A ) HAS NOT DISCUSSED AS TO WHY SUCH EVIDENCE WAS NOT PRODUCED BEFORE THE AO. IN AN Y CASE IN THE REMAND PROCEEDINGS THE AO HAS TAKEN PAINS TO ISSUE NOTICES U/S 133(6). IT IS SURPRISING THAT THE AO HAS GONE TO SUCH AN EXTENT WHEN IT IS THE DUTY O F THE ASSESSEE WHO HAS PRODUCED EVIDENCES IN THE APPELLATE PROCEEDINGS TO JUSTIFY A ND PROVE THE EVIDENCES AT SUCH A TIME. IF THE ASSESSEE HAD PRODUCED THE EVIDENCES IN THE COURSE OF ORIGINAL PROCEEDINGS BEFORE THE AO THEN IT WAS THE DUTY OF THE AO TO PRO VE SUCH EVIDENCES TO BE WRONG. THAT STAGE HAVING BEEN CROSSED AND ADVERSE INFERENC ES HAVING BEEN DRAWN AGAINST THE ASSESSEE JUST BECAUSE THE ASSESSEE KEEPS DUMPING FR ESH EVIDENCES IN THE APPELLATE ITA NO.363/KOL/2012 I.T.O., WARD-3(1),KOLKATA VS M/S.ZANY BIO TECH.PVT.LTD. A.YR.2005-06 3 PROCEEDINGS IT DOES NOT MEAN THAT THE AO MUST TAKE IT UPON HIMSELF TO EXAMINE THE VERACITY OF SUCH EVIDENCES. IN SUCH CASE IT IS FOR THE ASSESSEE TO PROVE THE VERACITY OF THE EVIDENCES PRODUCED TO THE SATISFACTION OF THE A O. FURTHER IN THE REMAND PROCEEDINGS IN THE PRESENT CASE THE AO HAS CATEGORI CALLY STATED THAT NONE OF THE PERSONS HAVE SUBMITTED THE DATE OF ALLOTMENT OF THE SHARES AND NONE OF THEM HAD PRODUCED THE COPY OF THE BANK STATEMENTS AND THE RE PLIES ARE IN THE SAME PATTERN. THIS HAS NOT BEEN DISLODGED BY THE LD. CIT(A) WHILE DELE TING THE ADDITION. IN THE CIRCUMSTANCES WE ARE OF THE VIEW THAT THE ISSUES IN THIS APPEAL MUST BE RESTORED TO THE FILE OF THE AO FOR ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CLAIM OF THE SHARE APPLICANTS. IT SHALL BE THE DUTY OF THE ASSESSEE TO PRODUCE SUCH SHARE APPLICANTS BEFORE THE AO FOR HIS EXAMINATION AND VERIFICATION AS CALLED FOR BY THE AO. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03.12.2013. SD/- SD/- [R.C.SHARMA] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER ( (( ( ) )) ) DATE: 03.12.2013. R.G.(.P.S.) - COPY OF THE ORDER FORWARDED TO: 1. M/S.ZANY BIO TECH. PVT. LTD., 11, ESPLANADE EAST RO W, 1 ST FLOOR, KOLKATA- 700069. 2 I.T.O., WARD-3(1), KOLKATA 3 . CIT(A)-I, KOLKATA 4. CIT - KOLKATA. 5. CIT(A)DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, !/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES ITA NO.363/KOL/2012 I.T.O., WARD-3(1),KOLKATA VS M/S.ZANY BIO TECH.PVT.LTD. A.YR.2005-06 4