Neelkamal Tradelink Pvt. Ltd., Kolkata V. ITO, WD-6(3), KOLKATA, Kolkata

ITA 488/KOL/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 7857 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 21-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Assessment record; Sham transactions; Reassessment proceedings
• Section: 133(6); 131; 68; 263

Judgement Text

1 ITA NO. 488/KOL/2016 NEELKAMAL TRADELINK PVT. LTD., AY 2008-09 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 488/KOL/2016 ASSESSMENT YEAR: 2008-09 NEELKAMAL TRADELINK PVT. LTD. (PAN: AACCN7978F) VS. INCOME-TAX OFFICER, WD-6(3), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 17.09.2018 DATE OF PRONOUNCEMENT 27.09.2018 FOR THE APPELLANT SHRI SUBASH AGARWAL, ADVOCATE FOR THE RESPONDENT MD. USMAN, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-6, KOLKATA DATED 03.03.2016 FOR AY 2008-09. 2. THE ASSESSEE HAS PREFERRED THIS APPEAL AGAINST T HE ORDER OF LD. CIT(A) WHEREIN HE HAS UPHELD THE ORDER PASSED BY THE AO WHICH WAS COM PLETED U/S. 143(3)/263/147 OF THE ACT (HEREINAFTER REFERRED TO AS THE ACT) ON 29.03.201 4. IN THIS CASE THE ASSESSMENT ORDER PASSED U/S. 147/143(3) OF THE ACT ON 30.04.2010 ASSESSING THE TOTAL INCOME AT RS.25,271/- AND AGAINST DECLARING TOTAL INCOME OF RS. NIL. LATER O N, ON 30.03.2013, AN ORDER U/S. 263 OF THE ACT WAS PASSED BY THE LD. CIT SETTING ASIDE THE ORD ER PASSED U/S. 147/143(3) OF THE ACT DIRECTING THE AO TO DO FRESH ASSESSMENT AND SPELT O UT GUIDELINES FOR CONDUCTING THE FRESH ASSESSMENT IN THE FOLLOWING MANNER: I) EXAMINE THE GENUINENESS AND SOURCE OF SHARE CA PITAL, 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. 2 ITA NO. 488/KOL/2016 NEELKAMAL TRADELINK PVT. LTD., AY 2008-09 II. FURTHER THE AO SHOULD EXAMINE THE DIRECTORS AS WELL AS EXAMINE THE CIRCUMSTANCES WHICH NECESSITATED THE CHANGE IN DIRECTORSHIP IF APPLICAB LE. HE SHOULD EXAMINE THEM ON OATH TO VERIFY THEIR CREDENTIALS AS DIRECTOR AND REACH A LO GICL CONCLUSION REGARDING THE CONTROLLING INTEREST. III). THE AO IS DIRECTED TO EXAMINE THE SOURCE OF R EALIZATION FROM THE LIQUIDATION OF ASSET SHOWN IN THE BALANCE SHEET AFTER THE CHANGE OF DIRE CTORS, IF ANY. AFTER CONDUCTING THE INQUIRIES & VERIFICATION AS DI RECTED ABOVE, THE AO SHOULD PASS A SPEAKING ORDER, PROVIDING ADEQUATE OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. 3. THE ASSESSEE COMPANY PREFERRED AN APPEAL BEFORE THE TRIBUNAL AGAINST THE SAID ORDER U/S. 263 OF THE ACT. MEANWHILE, REASSESSMENT PROC EEDING PURSUANT TO ORDER U/S. 263 OF THE ACT WAS INITIATED AGAINST THE ASSESSEE. IN THE SAI D ASSESSMENT ORDER, THE AO MADE AN ADDITION OF RS.10,23,50,000/- ON ACCOUNT OF SHARE C APITAL INCLUDING SHARE PREMIUM AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT. AGGRIE VED BY THE SAID ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO CONF IRMED THE ACTION OF AO. AGGRIEVED, ASSESSEE IS BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE T HROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE LD. CIT WHILE EXERCISIN G HIS REVISIONAL POWER U/S. 263 OF THE ACT HAS FOUND FAULT WITH THE ASSESSMENT ORDER DATED 30.04.2010 AND DIRECTED THE AO TO 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. AND THAT THE BANK ACCOUNT FOR THE ENTIRE PERIOD SHOULD BE EXAMINED IN THE COURSE OF VERIFICATION TO FIND OUT THE MONEY TRAIL OF THE SHARE CAPITAL. HE FURTHER DIRECTED THE AO TO EXAMINE THE DIRECTORS AS WELL AS EXAMINE THE CIR CUMSTANCES WHICH NECESSITATED THE CHANGE IN DIRECTORSHIP IF APPLICABLE. HE WAS ALSO D IRECTED TO EXAMINE THE DIRECTORS ON OATH TO VERIFY THEIR CREDENTIALS AND REACH A LOGICL CONC LUSION REGARDING THEIR CONTROLLING INTEREST. HE ALSO DIRECTED AO TO EXAMINE THE SOURCE OF REALIZ ATION FROM THE LIQUIDATION OF ASSET SHOWN IN THE BALANCE SHEET AFTER THE CHANGE OF DIRE CTORS, IF ANY. HOWEVER, WE NOTE THAT AOS INVESTIGATION AS PER HIS OWN WORDS AS STATED A S UNDER: IN THE INSTANT CASE, ON PERUSAL OF RECORDS IT APPE ARS THAT DURING THE FINANCIAL YEAR UNDER CONSIDERATION THE ASSESSEE COMPANY INCORPORATED WIT H A CAPITAL OF RS.1,00,000/- AND FURTHER RAISED SHARE CAPITAL AMOUNTING TO RS.51,12,500/- BY ISSUING 05.11250 1ACS EQUITY SHARES OF FACE VALUE OF RS.10/-- AT A PREMIUM OF RS.190/-- BY PRIVATE PLACEMENT AMOUNTING TO RS.9,71,37,500/-. DURING THE YEAR TOTAL 18 [ EIGHTE EN ] NUMBER OF SHAREHOLDERS AS PER FORM- 3 ITA NO. 488/KOL/2016 NEELKAMAL TRADELINK PVT. LTD., AY 2008-09 2 FILED BEFORE THE ROC. IT HAS ALSO BEEN OBSERVED F ROM THE BALANCE SHEET FURNISHED THAT DURING THE ASSESSMENT YEAR UNDER CONSIDERATION THER E ARE INVESTMENT TO THE TUNE OF RS.10,22,50,000/--. PERUSAL OF THE RECORDS REVEALED THAT THE ASSESSEE COMPANY UTILIZED FUNDS RECEIVED FROM THE ISSUE OF SHARES IN MAKING OF THE SAID INVESTMENT. DURING THE COURSE OF HEARING, THE A/R OF THE ASSESS EE PRODUCED THE BOOKS OF ACCOUNTS LIKE CASH BOOK ETC. AND BANK STATEMENT[S] IN ORIGINAL WH ICH HAVE BEEN EXAMINED. HE ALSO FURNISHED THE OTHER DETAILS/DOCUMENTS ETC., WHICH H AVE ALSO BEEN PERUSED. INFORMATION WAS ALSO SOUGHT FOR BY ISSUING NOTICES U/S.133[6] OF TH E LT. ACT,1961 FROM VARIOUS SHAREHOLDERS AND REPLY[S] RECEIVED ARE PLACED ON RECORD. TO VERIFY THE JUSTIFICATION OF THE SHARE CAPITAL AN D SHARE PREMIUM RECEIVED, THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE ABOVE 18 [ EIGHTEEN ], ALLEGED SHAREHOLDERS, SUMMONS U/S.131 OF THE I.T. ACT, 1961 WERE ISSUED T O THE PRINCIPAL OFFICERS [THE, THEN DIRECTORS ] OF THE ASSESSEE COMPANY. BUT, IT HAS BE EN OBSERVED THAT NONE HAS BEEN APPEARED. EVEN THE AIR OF THE ASSESSEE FAILED TO PRODUCE THE THEN DIRECTORS. THE ONUS OF THE ASSESSEE COMPANY TO PROVE IDENTITY, CREDITWORTHINESS AND GEN UINENESS OF THE TRANSACTIONS ARE HENCE NOT DISCHARGED. THEREFORE, THE IDENTITY, CREDITWORT HINESS AND GENUINENESS OF THE ABOVE 18 [ EIGHTEEN ] ALLEGED SHAREHOLDERS REMAIN UNEXPLAINED. IT IS ALSO TO BE MENTIONED THAT THE SHARE CAPITAL, RESERVE AND SURPLUS, NET WORTH, TURNOVER OF THE ASSESSEE COMPANY ALSO REMAINED UNEXPLAINED WHIC H ARE NECESSARY FOR AN INVESTOR TO CONSIDER BEFORE AN INVESTMENT IS MADE. IT LEADS TO THE CONCLUSION THAT IF THERE WAS INVESTMENT, THEN, IT WAS DONE WITHOUT MINIMUM BUSIN ESS PRUDENCE AND THEREFORE IS NOT USUAL, AS IT LACKS THE MOTIVE OF PROFIT OR GAIN. HERE, SIN CE THE THEN DIRECTORS FAILED TO APPEAR BEFORE THE UNDERSIGNED, HENCE, I AM OF THE OPINION THAT TH EY HAVE LACKED REGARDING THE NORMAL BUSINESS PRUDENCE. HOWEVER, THERE IS COMPLIANCE IN RESPECT OF NOTICES ISSUED U/S.133(6) TO THE SHAREHOLDERS, THE REPLIES RECEIVED ARE EXAMINED AND PERUSED. ON EXAMI NATION OF SUCH REPLIES IT SEEMS THAT ALL THESE COMPANIES ARE CONDUIT COMPANIES POPULARLY KNO WN AS NAME LENDERS, WHICH ARE BEING USED TO ALLOW ONLY BOOK ENTRIES BY COLOURING THE SA ME IN THE SHAPE OF TRANSACTIONS AS APPEARED' IN THEIR REPLIES. IT APPEARS THAT THE ASS ESSEE COMPANY HAD ARRANGED ITS OWN MONEY AND ROUTED IT THROUGH THESE COMPANIES IN THE GARB O F SHARE CAPITAL AND SHARE PREMIUM. IT THEREFORE LEADS TO THE CONCLUSION THAT THE ALLEGED SHAREHOLDERS MADE NO INVESTMENT AND INCLUSION OF THEM IN THE LIST OF SHAREHOLDERS ARE D ECEPTIVE. THE ASSESSEE COMPANY RESORTED TO SUCH MANIPULATION IN TRANSACTION TO GIVE AN APPEARA NCE OF GENUINENESS, WHICH ARE IN FACT SHAM TRANSACTIONS. ABOVE ALL, THE HANDSOME PREMIUM WHICH IS VERY MUCH UNUSUAL BEING INVESTED IN SUCH A NEWLY INCORPORATED UNLISTED COMPANY IS ALSO REMAINE D UNEXPLAINED. THERE HAS BEEN A SPECIFIC OBSERVATION MADE BY THE LD CIT, KOLKATA-II , KOLKATA AS CONTAINED IN THE ORDER U/S.263 OF THE I. T. ACT,1961 THAT; 'THE A.O SEEMS TO HAVE MISSED THE LARGER PICTURE AN D UNWITTINGLY HAS ENDED UP GIVING A CERTIFICATE OF GENUINENESS -OF SHARE CAPIT AL BY PASSING THE IMPUGNED ORDER. THIS BY ITSELF ESTABLISHES THAT SUCH ORDERS ARE ERR ONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE ADMINISTRATION. ' THUS, AS IT IS AMPLY CLEAR FROM THE OBSERVATIONS MA DE BY THE CIT, KOLKATA-II, KOLKATA AS SPELT OUT IN THE ORDER U/S.263 OF THE I. T. ACT,196 1, THAT THE TRANSACTIONS OF SHARE CAPITAL SUBSCRIPTION SHOWN BY THE ASSESSEE WAS ONLY APPAREN T AND IS NOT A REAL ONE, RATHER IT WAS NOT GENUINE AND BOGUS. UNTIL AND UNLESS THE ASSESSE E CAN PROVIDE ADEQUATE SATISFACTORY 4 ITA NO. 488/KOL/2016 NEELKAMAL TRADELINK PVT. LTD., AY 2008-09 EVIDENCE THAT THE CASE OF THE ASSESSEE IS DIFFERENT , THE OBSERVATION MADE BY THE LD. CIT, KOLKATA-II, KOLKATA DURING THE REVISION PROCEEDINGS IS VERY MUCH CORRECT AND AS PER THE LAW. IN THIS CASE, THE ASSESSEE FAILED TO PROVE BEYOND R EASONABLE DEGREE OF CERTAINTY THAT THE FACT IN CASE OF THE ASSESSEE COMPANY IS OTHERWISE THAN W HAT HAS BEEN OBSERVED IN THE PROCEEDINGS U/S.263 OF THE I.T. ACT, 1961. IT IS, T HEREFORE, LOGICAL TO HOLD THAT IN ITS CASE, THE TRANSACTION REVOLVING AROUND THE RAISING OF SHARE C APITAL AND THE INVESTMENTS THEREOF HAVE BEEN PREJUDICIAL TO THE INTEREST OF REVENUE. CONSIDERING THE FACTS, CIRCUMSTANCES AND THE ORDER PASSED U/S.263 DATED 30-03-2013, THE SUM SO CREDITED AMOUNTING TO RS.10,22,50,000/- IN T HE BOOKS OF THE ASSESSEE COMPANY FOR THE RELEVANT PREVIOUS YEAR FROM 18 [ EIGHTEEN ]ALLEGED SHAREHOLDERS AND RS.1,00,000/ - INITIAL SHARE CAPITAL IS HEREBY TREATED AS BOGUS AND CHARGE D TO INCOME TAX BEING INCOME OF THE ASSESSEE COMPANY FOR THE ASSESSMENT YEAR 2008-09 U/ S.68 OF THE I.T.ACT, 1961. 5. WE NOTE THAT WHILE GIVING EFFECT TO THE ORDER P ASSED U/S. 263 OF THE ACT BY THE AO, LD. CITS DIRECTION HAS NOT BEEN COMPLIED WITH. LD . AR DREW OUR ATTENTION TO PAGE 5 OF THE REASSESSMENT ORDER WHEREIN WE NOTE THAT THE LD. AR OF THE ASSESSEE HAD PRODUCED THE BOOKS OF ACCOUNT LIKE CASH BOOK, BANK STATEMENT IN ORIGIN AL ETC., WHICH THE AO ACKNOWLEDGES TO HAVE BEEN EXAMINED. THEREAFTER, AO ADMITS THAT LD. AR OF ASSESSEE ALSO FURNISHED OTHER DETAILS/DOCUMENTS. IT HAS ALSO BEEN ACKNOWLEDGED B Y THE AO THAT HE SOUGHT INFORMATION BY ISSUING NOTICE U/S. 133(6) OF THE ACT FROM VARIOUS SHAREHOLDERS AND REPLIES HAVE BEEN RECEIVED FROM THEM WHICH HE HAS PLACED ON RECORD AL ONG WITH ASSESSMENT RECORDS. HOWEVER, HE RESORTED TO SADDLING THE ADDITION OR TAKE AN ADV ERSE VIEW AGAINST THE ASSESSEE WAS BECAUSE THE SUMMONS U/S. 131 OF THE ACT TO THE ERST WHILE DIRECTORS OF THE ASSESSEE COMPANY DURING THE AY 2008-09 COULD NOT RESPOND, SO THE AO, HE DREW ADVERSE INFERENCE AGAINST THE ASSESSEE AND MULCT THE ADDITION. ACCORDING TO LD. AR, THIS ACTION OF THE AO IS NOT AS PER THE GUIDELINES GIVEN BY THE LD. CIT IN HIS 263 ORDE R AND IT WAS POINTED OUT TO US BY SHRI SUBHAS AGARWAL THAT THERE IS A VIOLATION OF NATURAL JUSTICE BECAUSE WHEN THE OLD/ERSTWHILE DIRECTORS ARE SUMMONED, ASSESSEE COMPANY SHOULD HAV E BEEN PUT TO NOTICE SO THAT THE ASSESSEE WOULD ALSO HAVE TRIED ITS BEST TO PROCURE THE PRESENCE OF ITS OLD DIRECTORS. HOWEVER, NO SUCH ACTION HAS BEEN TAKEN BY THE AO, T HEREFORE, ACCORDING TO LD. AR, NO PROPER OPPORTUNITY HAS BEEN GRANTED TO THE ASSESSEE DURING THE REASSESSMENT PROCEEDING. FROM THE AFORESAID FACTS NARRATED ABOVE, WE FIND F ORCE IN THE SUBMISSION OF THE LD. AR THAT NO PROPER OPPORTUNITY WAS GIVEN TO ASSESSEE BY AO D URING THE REASSESSMENT PROCEEDINGS AND SO WE ARE, THEREFORE, OF THE OPINION THAT ASSES SEE DID NOT GET PROPER OPPORTUNITY BEFORE THE AO DURING REASSESSMENT PROCEEDINGS. IN SUCH A S CENARIO, THE HONBLE (THREE JUDGE 5 ITA NO. 488/KOL/2016 NEELKAMAL TRADELINK PVT. LTD., AY 2008-09 BENCH) OF THE HONBLE SUPREME COURT IN TIN BOX COMP ANY VS. CIT (2001) 249 ITR 216 (SC) HAS HELD AS UNDER: IT IS UNNECESSARY TO GO INTO GREAT DETAIL IN THESE MATTERS FOR THERE IS A STATEMENT IN THE ORDER OF T HE TRIBUNAL, THE FACT-FINDING AUTHORITY, THAT READS TH US : 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. 6. IN SIMILAR CASE THIS TRIBUNAL IN ITA NO.393/KOL/ 2016 IN M/S. STAR GRIHA (P) LTD. VS. ITO FOR AY 2008-09 DATED 15.12.2017 HAS OBSERVED AS UNDER:- WE ALSO NOTE THAT THE LD. CIT AFTER LOOKING INT O THE PERNICIOUS PRACTICE OF CONVERTING BLACK MONEY INTO WHITE MONEY HAS GIVEN THE GUIDELIN ES TO AO AS TO HOW THE INVESTIGATION SHOULD BE CONDUCTED TO FIND OUT 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 S UPREME 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 EXPERIENCE AND WISDOM HAS GIVEN CERTAIN GUIDELINES IN THE BACKDROP OF BLACK MONEY MENACE SHOULD 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 DETERMINE WHETHER THE IDENTITY, GENUINENESS AND CREDITWORTHIN ESS 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 OPPORTUNITY TO THE ASSESSEE AT THE ASSESSMENT STAGE ITSELF, THE ASSESSMENT NEEDS TO BE DONE AFRESH AND THEREBY REVE RSED THE HONBLE HIGH COURT, TRIBUNAL AND CIT(A)S ORDERS AND REMANDED THE MATTER BACK T O AO FOR FRESH ASSESSMENT. SO, SINCE THERE WAS LACK OF OPPORTUNITY AS AFORESTATED IT HAS TO GO BACK TO AO. 6 ITA NO. 488/KOL/2016 NEELKAMAL TRADELINK PVT. LTD., AY 2008-09 7. WE ALSO NOTE THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. JANSAMPARK ADVERTISING & MARKETING PVT. LTD. IN ITA NO. 525/20 14 DATED 11.03.2015 WHEREIN AFTER NOTICING INADEQUATE ENQUIRY BY AUTHORITIES BELOW HA VE 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 HEREIN HAD COME UP WITH SOME PROOF OF IDENTITY OF SOME OF THE ENTRIES IN QUESTION. BUT, FROM THIS INF ERENCE, OR FORM THE FACT THAT THE TRANSACTIONS WERE THROUGH BANKING CHANNELS, IT DOES NOT NECESSAR ILY FOLLOWING THAT SATISFACTION AS TO THE CREDITWORTHINESS OF THE PARTIES OR THE GENUINENESS OF THE TRANSACTIONS IN QUESTION WOULD ALSO HAVE BEEN ESTABLISHED. 42. THE AO HERE MAY HAVE FAILED TO DISCHARGE HIS OB LIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGICAL CONCLUSION. BUT CIT(APPE ALS), HAVING NOTICED WANT OF PROPER INQUIRY, COULD NOT HAVE CLOSED THE CHAPTER SIMPLY B Y ALLOWING THE APPEAL AND DELETING THE ADDITIONS MADE. IT WAS ALSO THE OBLIGATION OF THE F IRST APPELLATE AUTHORITY, AS INDEED OF ITAT, TO HAVE ENSURED THAT EFFECTIVE INQUIRY WAS CARRIED OUT, PARTICULARLY IN THE FACT OF THE ALLEGATIONS OF THE REVENUE THAT THE ACCOUNT STATEME NTS REVEAL UNIFORM PATTERN OF CASH DEPOSITS OF EQUAL AMOUNTS IN THE RESPECTIVE ACCOUNTS PRECEDI NG THE TRANSACTIONS IN QUESTION. THIS NECESSITATED A DETAILED SCRUTINY OF THE MATERIAL SU BMITTED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION148 ISSUED BY THE AO, AS ALSO T HE MATERIAL SUBMITTED AT THE STAGE OF APPEALS, IF DEEMED PROPER BY WAY OF MAKING OR CAUSI NG TO BE MADE A 'FURTHER INQUIRY IN EXERCISE OF THE POWER UNDER SECTION 250(4). HIS APP ROACH NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDER OF ITAT, AND CONSEQUENTLY THAT OF CI T(APPEALS), CANNOT BE APPROVED OR UPHELD.' 8. IN VIEW OF THE AFORESAID ORDER AND IN THE LIGHT OF THE HONBLE SUPREME COURTS DECISION IN TIN BOX COMPANY (SUPRA) AND TAKING INTO CONSIDERATION THE FACT THE ORDER OF THE AO IN SIMILAR CASES BEING UPHELD UP TO THE LEVEL OF APEX COURT, AND TAKING NOTE OF HONBLE DELHI HIGH COURTS ORDER IN JANSAMPARK ADVERTISING & MARKETING PVT. LTD. (SUPRA), AND THE LD DR ACCEPTED THAT ASSESSEE DID NOT GET PROPER OP PORTUNITY BEFORE THE AO DURING REASSESSMENT PROCEEDINGS, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR DE NOVO ASSESSMENT AND T O DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. 9. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 27/09/201 8 SD/- SD/- (DR. A. L. SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27TH SEPTEMBER, 2018 JD.(SR.P.S.) 7 ITA NO. 488/KOL/2016 NEELKAMAL TRADELINK PVT. LTD., AY 2008-09 COPY OF THE ORDER FORWARDED TO: 1 APPELLANT M/S. NEELKAMAL TRADELINK PVT. LTD., 50, SIR HARI RAM GOENKA STREET, 2 ND FLOOR, ROOM NO. A-10, KOLKATA-700 007. 2 RESPONDENT ITO, WARD-6(3), KOLKATA. 3 4 5 . CIT(A)-6, KOLKATA. (SENT THROUGH E-MAIL) CIT, KOLKATA. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY