M/s Star Griha (P) Ltd., Kolkata V. ITO, WD-5(1), KOLKATA, Kolkata

ITA 393/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0584 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 09-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANAND R BAIWAR
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit; Opportunity of being heard; Earning of tax free income
• Section: 142(1); 133(6); 131; 68; 148; 263

Judgement Text

1 ITA NO.393/KOL/2016 M/S. STAR GRIHA (P) 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. 393/KOL/2016 ASSESSMENT YEAR: 2008-09 M/S. STAR GRIHA (P) LTD. (PAN: AAKCS8181M) VS. INCOME-TAX OFFICER, WD-5(1), 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 ANAND R. BAIWAR, 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 01.01.2016 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.24,55,00,000/- MADE B Y 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.1,840/- WHICH WAS PROCESSED U/S. 143(1) OF THE ACT. AO NOTICED THAT THE ASSESSEE DERIVES INCOME FROM SHARE DEALING AND INVE STMENT. THE AO AFTER EXAMINATION OF THE BALANCE SHEET AND P&L ACCOUNT OF THE ASSESSEE C OMPANY NOTICED THAT PRELIMINARY EXPENSES OF RS.46,840/- WRITTEN OFF WHICH WAS DISAL LOWABLE HAD NOT BEEN DISALLOWED IN THE RETURNED EXEMPT INCOME OF RS.10,539/- HAS NOT BEEN TAKEN INTO ACCOUNT AND THERE WAS ON 2 ITA NO.393/KOL/2016 M/S. STAR GRIHA (P) LTD., AY 2008-09 THAT ACCOUNT ESCAPEMENT OF INCOME. SO, HE ISSUED N OTICE U/S. 148 OF THE ACT AND REOPENED THE ASSESSMENT AND PASSED ORDER U/S. 147/143(3) OF THE ACT ON 07.07.2010 DETERMINING THE TOTAL INCOME AT RS.48,680/-. 4. THE LD. CIT-2, KOLKATA INVOKED THE REVISIONAL J URISDICTION U/S. 263 OF THE ACT, SINCE THE AO HAD NOT PROPERLY ENQUIRED AND VERIFIED THE G ENUINENESS AND SOURCE OF SHARE CAPITAL AS WELL AS THE IDENTITY AND CREDITWORTHINESS OF THE SHAREHOLDERS WHO HAD APPLIED FOR SHARES OF THE COMPANY. SO, THE CIT SET ASIDE THE ORDER PA SSED BY THE AO U/S. 147/143(3) OF THE ACT ON 07.07.2010 FOR FRESH ASSESSMENT VIDE HER ORDER D ATED 26.03.2013, WITH CERTAIN SPECIFIC GUIDELINES REGARDING INVESTIGATION TO BE CARRIED OU T WHILE ASSESSING THE ASSESSEE DE NOVO. CONSEQUENTLY, THE AO VIDE ORDER DATED 30.03.2014 PA SSED THE REASSESSMENT ORDER GIVING EFFECT TO THE ORDER OF LD. CIT. 5. WE ALSO TAKE NOTE THAT THE AO HAS REPRODUCED THE RELEVANT PORTION OF THE LD. CIT-2, KOLKATAS ORDER PASSED U/S. 263 OF THE ACT FROM PAG ES 1 TO 5 (THE TOTAL AOS ORDER IS 6 PAGES) AND THEREAFTER HE NOTICED THAT THE ORDER PAS SED BY CIT U/S. 263 OF THE ACT WAS SERVED UPON THE ASSESSEE. THEREAFTER, AO ISSUED A FORMAL NOTICE U/S. 142(1) OF THE ACT AS WELL AS QUESTIONNAIRE TO THE ASSESSEE ASKING IT TO PRODUCE AND SUBMIT CERTAIN DETAILS AND DOCUMENTS TO SUBSTANTIATE ITS RETURN OF INCOME; AND THEREAFTE R THE AO NOTICED THAT ON A PERUSAL OF THE BALANCE SHEET OF THE COMPANY REVEALED SHARE CAPITAL OF RS.2,45,50,000/- AND RESERVE (SHARE PREMIUM OF RS.22,09,50,000/-). THE AO NOTED IN HIS ORDER THAT HE HAS ISSUED NOTICE U/S. 133(6) OF THE ACT TO THE SHAREHOLDER OF THE ASSESSE E COMPANY BY POST AND THE AO ACKNOWLEDGES THAT REPLIES WERE RECEIVED FROM VARIOU S PARTIES TO WHOM NOTICES U/S. 133(6) OF THE ACT WERE ISSUED. AFTER RECEIVING REPLIES FROM SHAREHOLDER, THE AO NOTICED THAT HE ISSUED THE NOTICE U/S. 131 OF THE ACT TO VARIOUS DIRECTORS OF THE SHAREHOLDERS OF THE ASSESSEE COMPANY TO APPEAR BEFORE HIM ON 18.03.2014. THE AO NOTICED THAT ON THIS DATE SINCE NONE APPEARED AND NO ADJOURNMENT PETITION WAS FILED, AFT ER GIVING THE FINAL SHOW CAUSE NOTICE ON 21.03.2014 ASKING THE ASSESSEE TO SHOW CAUSE AS TO WHY BEST JUDGMENT ASSESSMENT SHOULD NOT BE RESORTED AGAINST IT; AND THE AO AFTER FIXING THE CASE ON 26.03.2014 AND TAKING NOTE THAT NONE APPEARED BEFORE HIM, THE AO CONCLUDED THA T THE IDENTITY OF THE SHAREHOLDERS AND 3 ITA NO.393/KOL/2016 M/S. STAR GRIHA (P) LTD., AY 2008-09 THE ASSESSEE COULD NOT BE PROVED BEYOND DOUBT AND D UE TO THE LACK OF COOPERATION OF THE ASSESSEES APPEAL, THE SHAREHOLDERS CREDITWORTHINES S COULD NOT BE ASCERTAINED. THEREFORE, THE SUM REFLECTED BY THE ASSESSEE IN THE BALANCE SH EET AS SHARE CAPITAL AND SHARE PREMIUM WAS ADDED BACK IN THE HANDS OF THE ASSESSEE AS UNDI SCLOSED CASH CREDIT AND THUS MADE AN ADDITION OF RS.24,55,00,000/-. AGGRIEVED, THE ASSE SSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO WAS PLEASED TO DISMISS THE APPEAL AND TH US CONFIRMED THE ACTION OF THE AO. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDING TO THE ASSESSEE, THIS APPEAL EMANA TES FROM THE ORDER OF AO DATED 30.03.2014 GIVING EFFECT OF THE ORDER OF LD. CIT PA SSED U/S. 263 OF THE ACT DATED 26.03.2013. THE LD. AR BROUGHT TO OUR NOTICE THAT T HE AO WHILE GIVING EFFECT TO THE ORDER OF THE LD. CIT ISSUED NOTICE U/S. 133(6) OF THE ACT TO THE SHAREHOLDERS OF THE ASSESSEE COMPANY BY POST AND THE AO HAS ACKNOWLEDGED CLEARLY THAT REPLIES WERE IN FACT RECEIVED FROM THE SHAREHOLDERS TO WHOM NOTICE U/S. 133(6) OF THE ACT WERE ISSUED BY HIM. THEREFORE, ACCORDING TO ASSESSEE, THE IDENTITY OF SHAREHOLDERS STANDS PROVED. ACCORDING TO LD. AR, SUBSEQUENTLY WHEN AO NOTICED THAT THE DIRECTORS OF THE SHAREHOLDER COMPANIES DID NOT APPEAR BEFORE HIM PERSONALLY ON 18.03.2014, THE AO ISSUED SHOW CAUSE NOTICE TO ASSESSEE FOR INVOKING BEST JUDGMENT ASSESSMENT AND THEREAFTE R, CONCLUDED THAT THE ASSESSEE COULD NOT PROVE THE IDENTITY AND CREDITWORTHINESS OF THE SHAR EHOLDERS. ACCORDING TO THE LD. AR, DESPITE THE AO WAS IN RECEIPT OF THE REVISIONAL ORD ER OF THE LD. CIT ON 26.03.2013 AND AFTER A LAPSE OF MORE THAN A YEAR DID NOT GIVE SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND IN FACT HAD ISSUED NOTICES TO THE DIRECTORS OF THE SHAREHOLDERS TO APPEAR ON 18.03.2014 AND WITHIN TWELVE DAYS FROM THE DATE OF NON APPEARANCE OF THE DIRECTO RS/SHAREHOLDERS OF THE COMPANY, THE AO HAS DRAWN AN INFERENCE AGAINST THE ASSESSEE AND, TH EREFORE, NO PROPER OPPORTUNITY WAS GRANTED TO THE ASSESSEE COMPANY TO ASSIST THE AO IN PROVING THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHAREHOLDERS. THE LD. AR R ELIED ON THE DECISION OF HONBLE SUPREME COURT (THREE JUDGES BENCH) IN TIN BOX COMPA NY VS. CIT (2001) 249 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 : 4 ITA NO.393/KOL/2016 M/S. STAR GRIHA (P) LTD., AY 2008-09 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. 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 ON 26.03.2013. THE AO WHILE GIVING EFFECT TO THE ORDER OF THE LD. CIT HAS NOTED THAT HE HAD ISSUED NOTICE U/S. 133(6) OF THE ACT TO THE SHAREHOLDERS OF THE A SSESSEE COMPANY BY POST AND THE AO HAS ACKNOWLEDGED THAT HE HAS RECEIVED REPLIES FROM THE SHAREHOLDERS TO WHOM NOTICE U/S. 133(6) OF THE ACT WAS ISSUED. THE AO NOTED THAT IN PURSUA NCE OF THE 131 NOTICE, SINCE THE DIRECTORS OF THE SHAREHOLDER COMPANIES HAD NOT APPEARED BEFOR E HIM ON 18.03.2014, THE AO THEREAFTER GAVE ASSESSEE ANOTHER NOTICE ON 21.03.2014 AS TO WH Y BEST JUDGMENT ASSESSMENT SHOULD NOT BE RESORTED TO AND AFTER FIXING THE HEARING ON 26.0 3.2014, THE AO AFTER NOTICING THAT NONE APPEARED ON BEHALF OF THE ASSESSEE, CONCLUDED THAT THE ASSESSEE HAS NOT COOPERATED AND, 5 ITA NO.393/KOL/2016 M/S. STAR GRIHA (P) LTD., AY 2008-09 THEREFORE, ACCORDING TO HIM, THE IDENTITY AND GENUI NENESS OF THE SHAREHOLDER SUBSCRIBER COMPANIES COULD NOT BE ESTABLISHED BEYOND DOUBT AND , THEREFORE, HE MADE THE ADDITION OF RS.24,55,00,000/-. WE NOTE THAT THE LD. CIT INVOKE D THE REVISIONAL JURISDICTION 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.24,55,00,000/- ON PREMIU M OF RS.22,09,50,000/- AND SINCE THE AO HAD NOT ENQUIRED INTO THE SOURCE OF THE SHARE CAPIT AL AND PREMIUM INFUSED INTO THE ASSESSEE COMPANY BY VERIFYING THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHAREHOLDERS, THE LD. CIT FOUND THE AO WHILE DOING ASSESSMENT DID NOT EXERCISE THE ROLE OF INVESTIGATOR AND, THEREFORE, THE ORDER OF AO IS ERRONEOUS SO FAR AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND DIRECTED THE AO TO MAKE FRESH ASSESSMEN T AFTER TAKING INTO CONSIDERATION THE PERNICIOUS PRACTICE OF CONVERTING BLACK MONEY BY TH E MODUS OPERANDI AS DESCRIBED BY THE LD. CIT. WE ALSO NOTED IN THE SAID BACKDROP, THE L D. CIT HAS GIVEN CERTAIN GUIDELINES WHICH WE CAN SAY IN ORDER TO FACILITATE A THOROUGH DEEP INVESTIGATION INTO THE CASE AND FOR THAT WE NOTE THAT THE LD. CIT HAD GIVEN THE FOLLOWI NG 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 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. 8. WITH THE AFORESAID DIRECTION, THE LD. CIT SET AS IDE THE ORDER OF THE AO WHICH WAS PASSED U/S. 147/143(3) OF THE ACT. WE ALSO NOTE TH AT SIMILARLY PLACED ASSESSEES HAD CHALLENGED THE EXERCISE OF REVISIONAL JURISDICTION U/S. 263 OF THE ACT BEFORE 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 TRIBUNA L WAS PLEASED TO UPHOLD THE ORDER PASSED BY THE LD. CIT PASSED U/S. 263 OF THE ACT, W HICH WE LEARN TO HAVE BEEN CONFIRMED BY 6 ITA NO.393/KOL/2016 M/S. STAR GRIHA (P) LTD., AY 2008-09 THE HONBLE JURISDICTIONAL HIGH COURT AND THE SLP P REFERRED AGAINST THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT HAS BEEN DISMISSE D 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 OR DER HAS NOTED THAT THE SHAREHOLDERS OF THE ASSESSEE COMPANY HAS IN FACT REPLIED TO HIS NOTICE U/S. 133(6) OF THE ACT. HOWEVER, THE AO TOOK THE ADVERSE VIEW AGAINST THE ASSESSEE ON THE P LEA THAT THE DIRECTORS OF THE SHARE SUBSCRIBING COMPANIES HAD NOT APPEARED BEFORE HIM ON 18.03.2014 AND THEREAFTER GIVING NOTICE ON 21.03.2014 AS TO WHY HE SHOULD NOT RESORT TO BEST JUDGMENT ASSESSMENT AND AFTER TAKING NOTE THAT NONE APPEARED ON 26.03.2014 CONCLU DED ON 30.03.2014 THAT ASSESSEE HAS NOT PROVED BEYOND DOUBT THE IDENTITY AND CREDITWORT HINESS OF THE SHAREHOLDERS AND THE LACK OF COOPERATION FROM THE ASSESSEE HAS ALSO BEEN MENT IONED BY THE AO. WE NOTE THAT THE AO HAD FIXED THE DATE OF 18.03.2014 FOR THE DIRECTORS OF SHARE SUBSCRIBING COMPANIES TO APPEAR BEFORE HIM, SINCE NONE APPEARED, THE AO ISSUED NOTI CE TO ASSESSEE ON 21.03.2014 TO SHOW CAUSE WHY BEST JUDGMENT ASSESSMENT SHOULD NOT BE RE SORTED BY HIM AND FIXED THE MATTER ON 26.03.2014. THUS THE ASSESSEE PRACTICALLY GOT LESS THAN FIVE DAYS, EVEN IF THE NOTICE DATED 21.03.2014 WAS SERVED ON THE ASSESSEE ON 22.03.2014 . SO, ASKING THE ASSESSEE TO BRING ALL EVIDENCE BEFORE THE AO WITHIN FIVE DAYS, IN OUR OPI NION THE ASSESSEE DID NOT GOT SUFFICIENT OPPORTUNITY BEFORE THE AO. WE ALSO NOTE THAT THE L D. CIT AFTER LOOKING INTO THE PERNICIOUS PRACTICE OF CONVERTING BLACK MONEY INTO WHITE MONEY HAS GIVEN THE GUIDELINES TO AO AS TO HOW THE INVESTIGATION SHOULD BE CONDUCTED TO FIND O UT THE SOURCE. SINCE SIMILAR ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD BY THE TRIBUNAL AS WELL AS BY THE HONBLE CALCUTTA HIGH COURT AS WELL AS THE SLP HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT, SIMILAR 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 EXPERI ENCE AND WISDOM HAS GIVEN CERTAIN GUIDELINES IN THE BACKDROP OF BLACK MONEY MENACE SH OULD HAVE BEEN PROPERLY ENQUIRED INTO AS DIRECTED BY HIM. THE AO OUGHT TO HAVE FOLLOWED THE INVESTIGATING GUIDELINES AND METHOD AS DIRECTED BY HIM TO UNEARTH THE FACTS TO DETERMIN E WHETHER THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHARE SUBSCRIBERS. WE NOTE THAT THE HONBLE SUPREME COURT (THREE JUDGES BENCH) IN THE CASE OF TIN BOX, (SUPRA), HAS HELD THAT SINCE THERE WAS LACK OF 7 ITA NO.393/KOL/2016 M/S. STAR GRIHA (P) LTD., AY 2008-09 OPPORTUNITY TO THE 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 MATTER BACK TO AO FOR FRESH ASSESSMENT . SO, SINCE THERE WAS LACK OF OPPORTUNITY AS AFORESTATED IT HAS TO GO BACK TO AO. WE ALSO NOTE THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. JANSAMPARK ADVER TISING & MARKETING PVT. LTD. IN ITA NO. 525/2014 DATED 11.03.2015 WHEREIN AFTER NOTICIN G 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 HE REIN HAD COME UP WITH SOME PROOF OF IDENTITY OF SOME OF THE ENTRIES IN QUESTION. BUT, F ROM THIS INFERENCE, OR FORM THE FACT THAT THE TRANSACTIONS WERE THROUGH BANKING CHANNELS , IT DOES NOT NECESSARILY FOLLOWING THAT SATISFACTION AS TO THE CREDITWORTHINESS OF THE PARTIES OR THE GENUINENESS OF THE TRANSACTIONS IN QUESTION WOULD ALSO HAVE BEEN ESTAB LISHED. 42. THE AO HERE MAY HAVE FAILED TO DISCHARGE HIS OB LIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. B UT CIT(APPEALS), HAVING NOTICED WANT OF PROPER INQUIRY, COULD NOT HAVE CLOSED THE C HAPTER SIMPLY BY ALLOWING THE APPEAL AND DELETING THE ADDITIONS MADE. IT WAS ALSO THE OBLIGATION OF THE FIRST APPELLATE AUTHORITY, AS INDEED OF ITAT, TO HAVE ENS URED THAT EFFECTIVE INQUIRY WAS CARRIED OUT, PARTICULARLY IN THE FACT OF THE ALLEGA TIONS OF THE REVENUE THAT THE ACCOUNT STATEMENTS REVEAL UNIFORM PATTERN OF CASH DEPOSITS OF EQUAL AMOUNTS IN THE RESPECTIVE ACCOUNTS PRECEDING THE TRANSACTIONS IN QUESTION. TH IS NECESSITATED A DETAILED SCRUTINY OF THE MATERIAL SUBMITTED BY THE ASSESSEE IN RESPON SE TO THE NOTICE UNDER SECTION148 ISSUED BY THE AO, AS ALSO THE MATERIAL SUBMITTED AT THE STAGE OF APPEALS, IF DEEMED PROPER BY WAY OF MAKING OR CAUSING TO BE MADE A 'FU RTHER INQUIRY IN EXERCISE OF THE POWER UNDER SECTION 250(4). HIS APPROACH NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDER OF ITAT, AND CONSEQUENTLY THAT OF CIT(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 THAT THE ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT IN SIMILAR CASES BEI NG UPHELD 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 8 ITA NO.393/KOL/2016 M/S. STAR GRIHA (P) LTD., AY 2008-09 BACK TO THE FILE OF AO FOR DE NOVO ASSESSMENT AND T O DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. 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. STAR GRIHA (P) LTD., 32, EZRA S TREET, 9 TH FLOOR, ROOM NO. 912B, KOLKATA-700 001. 2 RESPONDENT ITO, WARD-5(1), KOLKATA. 3. THE CIT(A) , KOLKATA. 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECRETARY