Sahej Developers Pvt. Ltd., Kolkata V. ITO, WD-6(1), KOLKATA, Kolkata

ITA 548/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1466 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 29-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K TIWARI
• Assessee Lawyers: M D SHAH
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice
• Section: 68; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM & SHRI S.S. VISWANETHRA RAVI, JM] I.T.A. NO. 548/KOL/2016 ASSESSMENT YEAR: 2008-09 SAHEJ DEVELOPERS PVT. LTD...............................................................APPELLANT C/O. D.J. SHAH & CO., KALYAN BHAWAN, 2, ELGIN ROAD, KOLKATA 700 020. [PAN: AADCC 2651 D] I.T.O. WARD 6(1)......................................RESPONDENT AAYAKAR BHAWAN, 6 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI M.D. SHAH APPEARING ON BEHALF OF THE ASSESSEE. SHRI A.K. TIWARI, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : FEBRUARY 14, 2018 DATE OF PRONOUNCING THE ORDER : FEBRUARY 16, 2018 ORDER PER P.M. JAGTAP, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT (APPEALS) 2, KOLKATA DATED 04.02.2016 PASSED EX-PARTE CONFIRMING THE ADDITION OF RS. 8,52,00,000/- MADE BY THE A.O. U/S 68 BY TREATING THE SHARE CAPITAL AND SHARE PREMIUM RECEIVED BY THE ASSESSEE COMPANY AS UNEXPLAINED CASH CREDITS. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF INVESTMENT IN SHARES AND SECURITIES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY IT ORIGINALLY ON 20.12.2008 DECLARING A TOTAL INCOME OF RS. 660/-. ALTHOUGH THE SAID RETURN WAS INITIALLY ACCEPTED U/S 143(1) OF THE ACT, THE ASSESSMENT WAS SUBSEQUENTLY REOPENED BY THE A.O. AND IN THE ASSESSMENT 2 I.T.A. NO. 548/KOL/2016 ASSESSMENT YEAR: 2008-09 SAHEJ DEVELOPERS PVT. LTD. COMPLETED U/S 147/143(3) VIDE AN ORDER DATED 17.06.2010, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE A.O. AT RS. 28,464/-. THEREAFTER, THE ORDER PASSED BY THE A.O. U/S 147/143(3) WAS SET ASIDE BY THE LD. CIT VIDE HER ORDER DATED 28.03.2013 PASSED U/S 263 WITH THE DIRECTION TO THE A.O. TO MAKE THE ASSESSMENT AFRESH AFTER EXAMINING THE ISSUE OF SHARE CAPITAL AND SHARE PREMIUM RECEIVED BY THE ASSESSEE COMPANY AMOUNTING TO RS. 8,52,00,000/- AS PER THE PROVISIONS OF SECTION 68. AS PER THE DIRECTION OF LD. CIT GIVEN IN THE ORDER OF U/S 263, A FRESH ASSESSMENT WAS MADE BY THE A.O. U/S 143/263/147 OF THE ACT VIDE AN ORDER DATED 30.03.2014 WHEREIN HE MADE AN ADDITION OF RS. 8,52,00,000/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM BY TREATING THE SAME AS UNEXPLAINED CASH CREDITS. 3. AGAINST THE ORDER PASSED BY THE A.O. U/S 143/263/147, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) PROCEEDED TO DISPOSE OF THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 04.02.2016 PASSED EX-PARTE WHEREBY HE CONFIRMED THE ADDITION MADE BY THE A.O. ON ACCOUNT OF SHARE CAPITAL AND SHARE PREMIUM BY TREATING THE SAME AS UNEXPLAINED CASH CREDITS U/S 68, THEREBY DISMISSING THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. IN GROUND NO 1 RAISED IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE ON 3 I.T.A. NO. 548/KOL/2016 ASSESSMENT YEAR: 2008-09 SAHEJ DEVELOPERS PVT. LTD. THE GROUND THAT THE SAME WAS PASSED WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE WHICH IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. IN SUPPORT OF THE ASSESSEES CASE ON THIS ISSUE, AN AFFIDAVIT OF SHRI MOHAN KUMAR KEDIA, ACCOUNTANT OF THE ASSESSEE IS FILED BEFORE THE TRIBUNAL EXPLAINING THE REASONS FOR NON-APPEARANCE BEFORE THE LD. CIT(A) AS UNDER: 1. THAT I WAS ENTRUSTED WITH THE WORK OF PREPARING A PAPER BOOK IN THE CASE OF SAHEJ DEVELOPER PVT. LTD. FOR ITS APPEAL FOR A.Y. 2008-09 WHICH WAS PENDING BEFORE THE COMMISSIONER OF INCOME (APPEALS) 2 HAVING APPEAL NO. 1403/CIT(A)-2/6(1)/2014-2015. 2. THAT DURING THE MONTH OF JANUARY AND FEBRUARY 2016, I WAS KEEPING VERY UNWELL DUE TO FLUCTUATION IN MY BLOOD PRESSURE & SUGAR AND AS A RESULT, I WAS PRE-OCCUPIED IN ATTENDING TO MY MEDICAL NEEDS. 3. THAT AS A RESULT OF THE ABOVE, I WAS UNABLE TO ATTEND MY OFFICE AND PROFESSIONAL DUTIES AND THEREFORE, WAS UNABLE TO PROVIDE THE PAPER BOOK TO BE FILED IN THE HEARING BEFORE THE APPELLANT COMMISSIONER. 5. KEEPING IN VIEW THE AVERMENTS MADE BY THE ACCOUNTANT OF THE ASSESSEE COMPANY ON OATH AS ABOVE, WE ARE SATISFIED THAT THERE WAS A SUFFICIENT CAUSE FOR THE NON-APPEARANCE ON BEHALF OF THE ASSESSEE BEFORE THE LD. CIT(A) WHEN ITS APPEAL WAS FIXED FOR HEARING. ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND REMIT THE MATTER BACK TO HIM FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERIT IN ACCORDANCE WITH LAW AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE THE TRIBUNAL, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND SHALL EXTEND ALL THE POSSIBLE COOPERATION TO THE LD. CIT(A) IN ORDER TO ENABLE HIM TO DISPOSE OF ITS APPEAL EXPEDITIOUSLY. 4 I.T.A. NO. 548/KOL/2016 ASSESSMENT YEAR: 2008-09 SAHEJ DEVELOPERS PVT. LTD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH FEBRUARY, 2018. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16/02/2018 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. SAHEJ DEVELOPERS PVT. LTD., C/O. D.J. SHAH & CO., KALYAN BHAWAN, 2, ELGIN ROAD, KOLKATA 700 020. 2. I.T.O. WARD 6(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 6 TH FLOOR, KOLKATA 700 069. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA