M/s Barkha Vincomm Pvt. Ltd., Kolkata V. I.T.O., Ward-3(3), Kolkata

ITA 584/KOL/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9462 (ITAT-KOLKATA)
• Duration Of Justice: 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 25-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RADHEY SHYAM
• Keywords: Unexplained cash credit; Opportunity of being heard; Set aside
• Section: 143(3); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (A), KOLKATA [BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT & SHRI S. S. VISWANETHRA RAVI, JM] I.T.A. NO. 584/KOL/2019 ASSESSMENT YEAR: 2012-13 M/S. BARKHA VINCOMM PVT. LTD.,............................................APPELLANT 75, METCALFE STREET, KOLKATA 700 013. [PAN: AAECB 4170 D] ITO, WARD 3(3), KOLKATA............................RESPONDENT P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. APPEARANCES BY: SHRI SOUMITRA CHOUDHURY, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI RADHEY SHYAM, CIT (DR) APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : MARCH 29, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 05, 2019 ORDER PER P.M. JAGTAP, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 11, KOLKATA DATED 31.01.2019 PASSED EX-PARTE WHEREBY HE DISMISSED THE APPEAL OF THE ASSESSEE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING A TOTAL INCOME OF RS. 2,800/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE OF HAVING RECEIVED SHARE CAPITAL AND SHARE PREMIUM AMOUNT AGGREGATING TO RS. 9.34 CRORES WAS EXAMINED BY THE AO. DURING THE COURSE OF THE SAID EXAMINATION, HE ISSUED SUMMONS U/S 131 TO THE PRINCIPAL OFFICERS OF THE SHARE SUBSCRIBER COMPANIES. 2 M/S. BARKHA VINCOMM PVT. LTD. I.T.A. NO. 584/KOL/2019 ASSESSMENT YEAR: 2012-13 SOME OF THE SAID SUMMONS ISSUED BY THE AO WERE RETURNED UNSERVED BY THE POSTAL AUTHORITY. IN RESPONSE TO THE OTHER SUMMONS WHICH WERE DULY SERVED, THE DIRECTORS OF THE CONCERNED SHARE SUBSCRIBER COMPANIES APPEARED BEFORE THE AO, BUT SOUGHT TIME TO PRODUCE THE RELEVANT DETAILS AND DOCUMENTS FOR VERIFICATION. KEEPING IN VIEW THIS NON-COMPLIANCE TO THE SUMMONS ISSUED U/S 131, THE AO TREATED THE SHARE CAPITAL AND SHARE PREMIUM AMOUNT AGGREGATING TO RS. 9.34 CRORES AS UNEXPLAINED CASH CREDIT AND ADDITION TO THAT EXTENT WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 09.03.2015. 3. AGAINST THE ORDER PASSED BY THE AO U/S 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO SATISFACTORY 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) DISMISSED THE APPEAL OF THE ASSESSEE VIDE HIS APPELLATE ORDER DATED 31.01.2019 PASSED EX-PARTE THEREBY CONFIRMING THE ADDITION MADE BY THE AO U/S 68. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NO NOTICE OF HEARING WAS EVER RECEIVED BY THE ASSESSEE FROM THE LD. CIT(A) AND SUCH NON- RECEIPT OF THE NOTICE RESULTED INTO NON-APPEARANCE OF THE ASSESSEE BEFORE THE LD. CIT(A). HE HAS ALSO CONTENDED THAT PROPER AND SUFFICIENT OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE EVEN BY THE AO 3 M/S. BARKHA VINCOMM PVT. LTD. I.T.A. NO. 584/KOL/2019 ASSESSMENT YEAR: 2012-13 DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO ESTABLISH THE IDENTITY AND CAPACITY OF THE CONCERNED SHARE SUBSCRIBERS AS WELL AS THE GENUINENESS OF THE RELEVANT TRANSACTIONS BY FURNISHING THE RELEVANT DETAILS AND DOCUMENTS AND BY PRODUCING THE CONCERNED SHARE SUBSCRIBERS FOR VERIFICATION / EXAMINATION BEFORE THE AO. HE HAS CONTENDED THAT THE ASSESSEE IS IN A POSITION TO EXPLAIN THE RELEVANT CASH CREDIT IN THE FORM OF SHARE CAPITAL AND SHARE PREMIUM IN TERMS OF SECTION 68 BY FILING THE RELEVANT DETAILS AND DOCUMENTS AND BY PRODUCING THE CONCERNED SHARE SUBSCRIBERS FOR VERIFICATION / EXAMINATION OF THE AO AND URGED THAT ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE BY SENDING THE MATTER BACK TO THE AO. ALTHOUGH THE LEARNED DR HAS CONTENDED THAT THE MATTER SHOULD BE SENT BACK TO THE LD. CIT(A) INSTEAD OF THE AO, KEEPING IN VIEW ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IT WOULD BE FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SEND THE MATTER BACK TO THE AO FOR PROPER VERIFICATION / EXAMINATION. WE ACCORDINGLY SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX-PARTE AND RESTORE THE MATTER TO THE FILE OF THE AO FOR DECIDING THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. AS UNDERTAKEN BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE SHALL MAKE DUE COMPLIANCE BEFORE THE ASSESSING OFFICER AND EXTEND ALL THE COOPERATION IN ORDER TO ENABLE THE AO TO COMPLETE THE ASSESSMENT EXPEDITIOUSLY. 4 M/S. BARKHA VINCOMM PVT. LTD. I.T.A. NO. 584/KOL/2019 ASSESSMENT YEAR: 2012-13 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH APRIL, 2019. SD/- SD/- (S. S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 05/04/2019 BISWAJIT, SR. PS COPY OF ORDER FORWARDED TO: 1. M/S. BARKHA VINCOMM PVT. LTD., 75, METCALFE STREET, KOLKATA 700 013. 2. ITO, WARD 3(3), P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA