Tiwary Bechar And Company Pvt. Ltd., Kolkata V. I.T.O., Ward-11(1), Kolkata, Kolkata

ITA 40/KOL/2023

AI Insights

The case involves Tiwary Bechar and Company Pvt. Ltd., which appealed against the order of the Commissioner of Income Tax (Appeals) - NFAC, Delhi, confirming the addition of Rs. 2,66,93,697/- to the assessee's income as unexplained cash credit under section 68 of the Income Tax Act. The addition was based on the AO's observation from the balance sheet that the company had received share premium. However, the company contended that no share capital was issued during the year, and the documents reviewed by the AO did not belong to the assessee. The CIT(A) dismissed the appeal on the grounds of delay, which the Tribunal found to be incorrectly assessed. The Tribunal, after reviewing the facts and documents, including the audited annual accounts, concluded that the assessee had neither issued share capital nor received share premium during the relevant year.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 127324 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-03-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 16-01-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Set aside
• Section: 142(1)

Judgement Text

आयकर अपील य अ धकरण, कोलकाता पीठ ‘‘सी’’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH: KOLKATA ी राजेश क ु मार, लेखा सद य एवं ी संजय शमा या यक सद य के सम [Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member] I.T.A. No. 40/Kol/2023 Assessment Year: 2012-13 Tiwary Bechar and Company Pvt. Ltd. (PAN: AABCT 1791 R) Vs. ITO, Ward-11(1), Kolkata Appellant / (अपीलाथ ) Respondent / ( !यथ ) Date of Hearing / स ु नवाई क$ त&थ 14.03.2023 Date of Pronouncement/ आदेश उ)घोषणा क$ त&थ 21.04.2023 For the Appellant/ नधा /रती क$ ओर से Shri Manish Tiwari, FCA For the Respondent/ राज व क$ ओर से Shri Vijay Kumar, Addl. CIT ORDER / आदेश Per Rajesh Kumar, AM: This is the appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeal)-NFAC, Delhi (hereinafter referred to as the Ld. CIT(A)”] dated 01.12.2022 for the AY 2012-13. 2. The only issue raised by the assessee in the various ground of appeal is against the confirmation of addition of Rs. 2,66,93,697/- by the Ld. CIT(A) as made by the AO on account of share capital and share premium being unexplained cash credit u/s 68 of the Act. 2 I.T.A. No. 40/Kol/2023 Assessment Year: 2012-13 Tiwary Bechar and Company Pvt. Ltd. 3. Facts in brief are that the assessee filed return of income on 29.09.2012 declaring total income at Nil. Thereafter the case was selected for scrutiny and statutory notices were duly issued and served on the assessee. The AO issued questionnaire to the assessee along with notice u/s 142(1) of the Act and the assesse accordingly filed necessary documents before the AO. The AO observed on the basis of balance sheet for the year end on 31.03.2013filed by the assessee that it had received share premium of Rs. 4,55,35,150/-. Finally, the AO added a sum of Rs. 2,66,93,697/- on account of share premium received as unexplained cash credit to the income of the assessee. As a matter of fact the assessee has not issued any share capital during the year leave aside the receipt of share premium and thus AO has wrongly gathered the impression of issue of share at a premium from some other documents which were not belonging to the assessee. 4. The issue was challenged before the Ld. CIT(A) however the Ld. CIT(A) also dismissed the appeal in liminie by holding that the assessee has failed to offer any explanation for delay in filing the appeal of 57 months which is approximately 1750 days . 5. We have perused the facts on record and heard the rival contentions. We find that the Ld. CIT(A) has proceeded on the wrong assumption and appreciation of facts that the appeal of the assessee late by 57 months. We observe from the facts on records that the assessee had filed the appeal well within time i.e. due date on 18.09.2015 as against the due date of 16.10.2015 in physical mode and there is no delay of any kind whatsoever in filing the appeal before the first appellate authority. We not that the ld CIT(A) has taken the limitation from date the appeal was e-filed which in any case was effective from 01.03.2016 in terms of Rule 45 of Income Tax Rules, 1962 but the fact remains that the assesse has filed the appeal in physical mode on 18.09.2015. On the merit, we note that the assesse has not issued any share capital during the year and this fact was also placed before the ld CIT(A) by means of written submissions dated 24.11.2022 but the appeal was dismissed in liminie on account of appeal being barred by limitation. Similarly, the AO on wrong assumption of facts has come to conclusion that the assessee has issued share at a high premium during the year whereas there has been no such issue also note that the fact is apparent from the extracted in the appellate order We have gone through the facts as placed before us including the audited annual accounts from AY 2008-09 till 2012 PB and observe that there has been no issue of share capital by the assessee during the year vis-à-vis preceding year. In our opinion both the authorities below hopelessly failed to appreciate the facts on record that the assessee has not issued any share capital or received any premium during the year. We are not sending the case to the file of Ld. CIT(A) as the facts are apparent on record and in case, do so, to wastage of time and resources 3 Tiwary Bechar and Company Pvt. Ltd. e to conclusion that the assessee has issued share at a high premium during the there has been no such issue of share at a premium during the year also note that the fact is apparent from the balance sheet of the assessee in the appellate order and is also reproduced as under fo4r ready reference We have gone through the facts as placed before us including the audited annual 09 till 2012-13 copies whereof are placed at page 16 to 57 of observe that there has been no issue of share capital by the assessee during the vis preceding year. In our opinion both the authorities below hopelessly failed to appreciate the facts on record that the assessee has not issued any share premium during the year. We are not sending the case to the file of Ld. CIT(A) as the facts are apparent on record and in case, do so, ources of the revenue. Since the case is apparent tha I.T.A. No. 40/Kol/2023 Assessment Year: 2012-13 Tiwary Bechar and Company Pvt. Ltd. e to conclusion that the assessee has issued share at a high premium during the of share at a premium during the year. We balance sheet of the assessee which is fo4r ready reference: We have gone through the facts as placed before us including the audited annual placed at page 16 to 57 of observe that there has been no issue of share capital by the assessee during the vis preceding year. In our opinion both the authorities below hopelessly failed to appreciate the facts on record that the assessee has not issued any share premium during the year. We are not sending the case to the file of Ld. CIT(A) as the facts are apparent on record and in case, do so, it would lead revenue. Since the case is apparent that there 4 I.T.A. No. 40/Kol/2023 Assessment Year: 2012-13 Tiwary Bechar and Company Pvt. Ltd. has been no issuance of share capital during the year, we are inclined to set aside the order of Ld. CIT(A) and direct the AO to delete the addition of Rs. 2,66,93,697/- 6. In the result, the appeal of the assessee is allowed. Order is pronounced in the open court on 21 st April, 2023 Sd/- Sd/- (Sonjoy Sarma /संजय शमा ) (Rajesh Kumar/राजेश क ु मार) Judicial Member/ या यक सद य Accountant Member/लेखा सद य Dated: 21 st April, 2023 SB, Sr. PS Copy of the order forwarded to: 1. Appellant- Tiwary Bechar and Company Pvt. Ltd., 4 th Floor, 1 st Left Cabin of BTM, 7, Red Cross Place, Dalhousie Square, Kolkata-700001. 2. Respondent – ITO, Ward-11(1), Kolkata 3. Ld. CIT(A)-NFAC, Delhi 4. Ld. PCIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail) True Copy By Order Assistant Registrar ITAT, Kolkata Benches, Kolkata