M/s. Vasupujya Enterprises Pvt. Ltd., Kolkata V. ITO, Ward - 1(3),Kolkata, Kolkata

ITA 594/KOL/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1676 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 04-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR A K NAYAK
• Assessee Lawyers: S K TULSIAN
• Keywords: Unexplained cash credit; Opportunity of being heard; Source of fund; Additional evidence; Valuation report
• Section: 133(6); 208; 192; 64; 68

Judgement Text

ITA NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT AND SHRI A.T. VARKEY, JUDICIAL MEMBER I.T.A. NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED,........... ........................APPELLANT 35, CHITTARANJAN AVENUE, KOLKATA-700012 [PAN: AAACV8958M] -VS.- INCOME TAX OFFICER,................................ ......................................RESPONDENT WARD-1(3), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 APPEARANCES BY: SHRI S.K. TULSIAN, ADVOCATE, FOR THE APPELLANT DR. A.K. NAYAK, CIT (D.R.), FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : NOVEMBER 04, 2019 DATE OF PRONOUNCING THE ORDER : DECEMBER 11, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-1, KOLKATA DATE D 25.01.2018 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE ADDITION OF RS.15,67,92,000/- MADE BY THE ASSESSING OFFICER UND ER SECTION 68 OF THE INCOME TAX ACT, 1961, WHICH IS FURTHER ENHANCED BY THE LD. CIT(APPEALS) BY RS.27,80,000/-. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY, W HICH IS ENGAGED IN THE BUSINESS OF SHARE TRADING AND INVESTMENT. THE R ETURN OF INCOME FOR ITA NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED 2 THE YEAR UNDER CONSIDERATION WAS FILED BY THE ASSES SEE ON 21.09.2014 DECLARING TOTAL INCOME AT NIL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPON BY THE AS SESSING OFFICER TO EXPLAIN THE SOURCE OF SHARE PREMIUM AMOUNT OF RS.15 ,67,92,000/- RECEIVED DURING THE YEAR UNDER CONSIDERATION. AS NO TED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER, THE ASSESSEE, HOWE VER, FAILED TO COMPLY WITH THE SAID REQUIREMENT. THE ASSESSING OFFICER, T HEREFORE, TREATED THE ENTIRE SHARE PREMIUM AMOUNT OF RS.15,67,92,000/- RE CEIVED BY THE ASSESSEE-COMPANY DURING THE YEAR UNDER CONSIDERATIO N AS UNEXPLAINED CASH CREDIT AND ADDITION TO THAT EXTENT WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 68. 3. THE ADDITION OF RS.15,67,92,000/- MADE BY THE AS SESSING OFFICER UNDER SECTION 68 BY TREATING THE SHARE PREMIUM AMOU NT AS UNEXPLAINED CASH CREDIT WAS CHALLENGED BY THE ASSESSEE IN THE A PPEAL FILED BEFORE THE LD. CIT(APPEALS). DURING THE COURSE OF APPELLATE PR OCEEDINGS BEFORE THE LD. CIT(APPEALS), THE FOLLOWING SUBMISSIONS IN WRIT ING WERE MADE ON BEHALF OF THE ASSESSEE IN SUPPORT OF ITS CASE ON TH IS ISSUE:- DURING THE YEAR, THE ASSESSEE RAISED SHARE CAPITAL OF RS.27,80,000/- AND SECURITIES PREMIUM OF RS.15,67,9 2,000/- BY ALLOTTING 2,78,000 SHARES AT A FACE VALUE OF RS.I0/ - PER SHARES AND PREMIUM OF RS.564/-PER SHARE. DETAILED LIST OF ALLOTTEES, THEIR ADDRESSES, PAN DETAILS, NO. OF SHARES ALLOTTE D, TOTAL AMOUNT RECEIVED IS ENCLOSED AT PAGE 1-2 OF THE PAPE R BOOK. IT IS FURTHER SUBMITTED THAT IN THE COURSE OF ASSESSMENT, THE ASSESSEE COMPANY WAS ASKED TO SUBMIT THE COMPLETE DETAILS OF SHARE CAPITAL RAISED DURING THE YEAR. IN THIS REGARD, THE ASSESSEE SUBMITTED ITS ANNUAL ACCOUNTS, ITR ACKNOWLEDGMENT, RELEVANT BANK STATEMENTS AND FORM PAS-3 FILED WITH THE ROC. THE ABOVE DOCUMENTS ARE AGAIN ENCLOSED AT PAGE 4-31 OF THE PA PER BOOK. HOWEVER, THE LEARNED AO DID NOT APPRECIATE THE DOCU MENTS FILED BY THE ASSESSEE AND OPINED THAT THERE WAS NO BASIS OF ISSUING SHARES AT A PREMIUM OF RS.564/- PER SHARE AND THERE FORE THE ENTIRE PREMIUM RAISED BY THE ASSESSEE AMOUNTING TO RS.15,67,92,000/- WAS ADDED BACK TO THE INCOME OF T HE ASSESSEE AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT. HERE, PLEASE NOTE THAT THE LEARNED AO HAD NOT DISPU TED THE AMOUNT OF SHARE CAPITAL OF RS.27,80,000/- RAISED DU RING THE YEAR. IN OTHER WORDS, THE IDENTITY OF THE CREDITORS AND THE ITA NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED 3 GENUINENESS OF THE SHARE TRANSACTIONS WERE NOT DISP UTED BY THE LEARNED AO. HE HAS ONLY DISPUTED THE PREMIUM AMOUNT OF RS.564/- PER SHARE. IN THIS REGARD, PLEASE FIND ENC LOSED AT PAGE 32 OF THE PAPER BOOK, THE CERTIFICATE DATED 27.06.2 012 ISSUED BY M/S. SHANNA NARESH AND CO., - CHARTERED ACCOUNTANTS WHEREIN APPLYING THE NET ASSETS METHOD THE VALUE PER SHARE WAS ARRIVED AT RS.572.26. AS SUCH, THE PREMIUM OF RS.564/- PER SHARE WAS CHARGED TAKING INTO CONSIDERATION THE NET WORTH OF THE COMPANY. SINCE THE SAID CERTIFICATE ISSUED BY M/S. SHANNA NARESH AND CO., CHARTERED ACCOUNTANTS COULD NOT BE PRODUCED BEFORE THE LEARNED AO DUE TO PAUCITY OF TIME, IT IS HUMBLY REQUESTED BEFORE YOUR GOODSELF TO ADMIT THE SAME BY VIRTUE OF RULE 46A OF THE RULES. RULE 46A OF THE INCOME TAX RULES, 1962 REGULATES TH E PRODUCTION OF ADDITIONAL EVIDENCE BEFORE COMMISSION ER (APPEALS). IT PROVIDES THAT THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE COMMISSIONER (APPEALS) ANY EVIDE NCE, WHETHER ORAL OR DOCUMENTARY, OTHER THAN EVIDENCE PR ODUCED BY HIM BEFORE THE ASSESSING OFFICER, EXCEPT IN THE FOL LOWING CIRCUMSTANCES: A. THE ASSESSING OFFICER HAS REFUSED TO ADMIT EVIDE NCE WHICH OUGHT TO HAVE BEEN ADMITTED. B. THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPO N TO PRODUCE BY THE ASSESSING OFFICER. C. THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL. D. THE ASSESSING OFFICER MADE THE ORDER APPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO TH E APPELLANT TO ADDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. THE APPELLANT'S CASE IS CLEARLY FALLING UNDER EXCEP TION (D) TO RULE 46A. IT IS FURTHER SUBMITTED THAT IT IS THE RIGHT OF BOA RD OF DIRECTORS OF THE COMPANY TO DECIDE THE PREMIUM AMOUNT. THE BO ARD OF DIRECTORS IN THE MEETING HELD ON 25.03.2014 RESOLVE D TO ISSUE THE SHARES AT A FACE VALUE OF RS.10/- PER SHARE AND PREMIUM OF RS.564/- PER SHARE. A COPY OF THE BOARD RESOLUTION IS ENCLOSED AT PAGE 2 OF THE PAPER BOOK. MORE SO, THE PREMIUM C HARGED WAS DULY CORROBORATED BY THE NETWORTH OF THE COMPANY. F URTHER, THE COMPANY WAS NOT REQUIRED TO PROVE THE GENUINENE SS, PURPOSE OR JUSTIFICATION FOR CHARGING PREMIUM OF SH ARES. TO BUTTRESS THE CONTENTION OF THE ASSESSEE, RELIANCE I S PLACED ON THE JUDGMENT OF THE HON'BLE MUMBAI TRIBUNAL IN THE CASE OF ITA NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED 4 ACIT VS. GAGANDEEP INFRASTRUCTURE M. LTD. (2014) 40 CCH 0128 MUM. TRIB... CIT VS. ANSHIKA CONSULTANTS PVT. LTD. (2015) 93 CCH 0016 DEL. HC CIT VS. PRECISION FINANCE PVT. LTD. (1994) 208 ITR 465 (CAL) CIT VS. ORISSA CORPORATION PVT. LTD.(1986) 159 ITR 0078 ACIT VS GOVIND RAM AGARWAL (2000) 19 CCH 0339 KOL. TRIB. CIT VS GREEN INFRA LIMITED REPORTED IN [2017] 392 I TR 7 (BORN) COMMISSIONER OF INCOME-TAX V. LOVELY EXPORTS P. LTD .[299] ITR 268] NEMI CHAND KOTHARI V. COMMISSIONER OF INCOME-TAX [2 64 ITR 254] CIT V . EXPO GLOBE INDIA LTD. (2014) 361 ITR 147 (D ELHI) CIT VS. OASIS HOSPITALITIES PVT. LTD. AND OTHERS (3 33 ITR 119) COMMISSIONER OF INCOME-TAX V. SURESH KUMAR KAKAR [2 010] 324 ITR 0231(DEL) CIT- VS. STELLER INVESTMENT LTD. (1991) 192 ITR 287 (DEL) CIT VS ACHAL INVESTMENT LTD. (2004) 268 ITR 211 COMMISSIONER OF INCOME-TAX V. WINSTRAL PETROCHEMICA LS P. LTD. [330 ITR 603] IN VIEW OF THE ABOVE SUBMISSION AND JUDICIAL PRECED ENTS, IT IS HUMBLY URGED BEFORE YOUR GOODSELF TO DIRECT THE LEARNED AO TO DELETE THE ADDITION OF RS.15,67,92,000/- MADE U/S.68 OF THE AC T SINCE THE BASIS OF PREMIUM STANDS EXPLAINED AND ALL THE INGREDIENTS OF SECTION 68 OF THE ACT STANDS ESTABLISHED BY THE APPELLANT. 4. THE ABOVE SUBMISSIONS MADE BY THE ASSESSEE ALONG WITH THE SUPPORTING DOCUMENTARY EVIDENCE WERE FORWARDED BY T HE LD. CIT(APPEALS) TO THE ASSESSING OFFICER FOR VERIFICATION. THE ASSE SSING OFFICER IN TURN SUBMITTED THE REMAND REPORT TO THE LD. CIT(APPEALS) GIVING HIS COMMENTS AS UNDER:- GROUND NO. 1- ADDITION U/S.68 OF THE ACT - RS.15,6 7,92,000/- PARA NO.1 FACTS ON RECORD - NO COMMENTS. PARA NO.2 FACTS ON RECORD - NO COMMENTS. ITA NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED 5 PARA NO.3- THE ASSESSING OFFICER HAS ISSUED LETTERS U/S.133(6) TO THE ALLEGED SHARE- SUBSCRIBERS AT THE GIVEN ADDR ESS. BUT THERE WAS NO COMPLIANCE WITH RESPECT TO THE NOTICE U/S.133(6) OF THE ACT. THE FACT WAS BROUGHT TO THE NOTICE OF T HE ASSESSEE. TNE ASSESSEE DID NOT FURNISH ANY DOCUMENTS SO AS TO ESTABLISH THE CREDITWORTHINESS/SOURCE OF FUND IN THE HANDS OF THE SUBSCRIBERS. PARA NO. 4- IT IS FACT THAT THE ASSESSING OFFICER H AS ADDED BACK THE AMOUNT OF RS.15,67,92,000/- U/S.68 OF THE ACT. HOWEVER, THE ASSESSING OFFICER HAD ALSO NOTED THAT 'NO EXPLA NATION REGARDING SOURCE OF CAPITAL WAS RECEIVED FROM THE A SSESSEE. IT APPEARS THAT THE ASSESSING OFFICER HAS OMITTED TO I NCLUDE THE AMOUNT OF SHARE CAPITAL WITH THE PREMIUM OF RS.15,67,92,000/-. IT IS NOT TO PRESUME THAT THE AS SESSING OFFICER HAS NOT DISPUTED THE AMOUNT OF SHARE CAPITA L OF RS.27,80,000/-. REGARDING SUBMISSION OF THE VALUATI ON REPORT UNDER RULE 11UA, IT APPEARS THAT THE SAME WAS SUBMI TTED ON THE DATE OF ASSESSMENT ORDER BUT DEFINITELY AFTER T HE FINALIZATION OF THE ASSESSMENT ORDER. FURTHER, THE SAME HAS NO BEARING ON THE ADDITION U/S.68 IN LIGHT OF FAILURE ON THE PART OF THE ASSESSEE TO SUBSTANTIATED THE CREDITWORTHINE SS/SOURCE OF FUND IN THE HANDS OF THE SHARE-SUBSCRIBERS. PARA NO. 5- THE SUBMISSION OF THE ASSESSEE THAT THE ASSESSMENT WAS MADE WITHOUT GIVING SUFFICIENT OPPOR TUNITY TO THE APPELLANT TO ADDUCE EVIDENCE RELEVANT TO GROUND OF APPEAL IS NOT FACTUALLY CORRECT. THERE WAS UTTER NON- COMP LIANCE ON THE PART OF THE ASSESSEE AS NOTED HEREINBEFORE. THE ASSESSEE WAS INFORMED ABOUT THE NON-COMPLIANCE ON THE PART O F SHARE- SUBSCRIBERS AND WAS ASKED TO SHOW CAUSE AS TO WHY T HE AMOUNT OF SHARE PREMIUM CLAIMED TO HAVE BEEN RECEIV ED NOT TO BE ADDED BACK U/S.68 OF THE ACT. THE ASSESSEE HA D FILED VALUATION REPORT UNDER RULE 11UA [THOUGH AFTER THE COMPLETION OF THE ASSESSMENT] BUT DID NOT REPLY TO THE SHOW CAUSE NOTICE NOR SOUGHT ANY ADJOURNMENT FOR THAT PU RPOSE. THEREFORE, IT IS NOT CORRECT THAT THE ASSESSEE WAS NOT GIVEN REASONABLE OPPORTUNITY OF BEING HEARD, PARA NO.6 - THE SUBMISSION OF THE ASSESSEE IS APPLI CABLE IN THE CASE OF GENUINE SUBSCRIPTION OF SHARES. IN THIS CAS E, THE ASSESSEE FAILED TO SUBSTANTIATE THE CREDITWORTHINES S/SOURCE OF FUND FOR INVESTMENT IN ITS SHARES. IT IS FACT THAT THE ASSESSEE HAD SHOWN THE CREDIT O F THE AMOUNT IN ITS BANK ACCOUNT BUT DID NOT FURNISH ANY DOCUMEN T SO AS TO ESTABLISH THE CREDITWORTHINESS/SOURCE OF FUND IN TH E HANDS OF THE INVESTORS. IT IS FACT THAT THE SHARE PREMIUM IS TO BE DECIDED BY THE BOARD OF DIRECTORS. BUT , SINCE IN THIS CASE, THE ASSESSE E HAS FAILED TO ESTABLISH THE CREDITWORTHINESS, THE REASONABLENESS OF THE ITA NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED 6 PREMIUM IS NOT AN ISSUE ALBEIT THE FACT THAT THE AS SESSEE- COMPANY HAD SHOWN SHARE HOLDERS' FUND AT RS.87,04,8 8,434/- [AFTER ADJUSTING NEGATIVE BALANCE, OF RESERVE & SUR PLUS (CUMULATIVE LOSSES) OF RS.65,91,54,035] AND INVESTM ENT OF RS.139,76,54,438/- BUT DID NOT EARN ANY 'REVENUE FR OM OPERATION.' PARA NO.7 -REPLY TO THIS PARAGRAPH HAS ALREADY BEEN NOTED IN COMMENT AGAINST PARA NO. 6 ABOVE. HOWEVER, THE ASSE SSEE'S ARGUMENT REGARDING SUBMISSION OF BANK DETAILS AND CONFIRMATORY LETTERS FROM THE INVESTORS IS NOT FACT UALLY CORRECT. REGARDING THE DECISIONS OF VARIOUS HON'BLE COURTS (CONTINUATION OF THE PARA NO, 7), IT IS SUBMITTED T HAT THE ASSESSEE HAD ONLY SUBMITTED THE NAMES, ADDRESSES AN D PAN OF THE INVESTORS. BUT THE ASSESSEE DID NOT SUBSTANTIAT E THE GENUINENESS OF THE TRANSACTIONS AS NONE OF THE ALLE GED INVESTORS HAD REPLIED TO LETTERS ISSUED U/S.133(6) TO EXAMINE THEIR CREDITWORTHINESS/SOURCE OF FUND. IN THIS RESP ECT, THE OBSERVATION OF THE HON'BLE JURISDICTIONAL HIGH COUR T IN THE CASE OF M/S. RAJMANDIR ESTATES (P) LTD. [386 ITR 16 2] IS CONSIDERED TO BE VERY MUCH PERTINENT. IN THAT CASE THEIR LORDSHIP HELD THAT APPARENTLY, THE IDENTITIES OF TH E INVESTORS ARE KNOWN BUT, HAVING REGARD TO THE FACTS OF THE CA SE, THE CREDITWORTHINESS OF THE INVESTORS HAVE TO BE PROVED AS GENUINE. THE INVESTOR-COMPANIES MUST HAVE THEIR OWN FUND. IN CASES, WHERE THE FUND WAS INFUSED BUY SOME OTHER CO MPANY AND FROM SOME OTHER COMPANY TO THAT COMPANY, THE TRANSACTIONS ARE NOMINAL RATHER THAN REAL. THE ONUS IS ON THE ASSESSEE TO PROVE THE CREDITWORTHINESS/SOURCE OF FU ND IN THE HANDS OF THE INVESTORS. PARA NO.8 -CASH CREDITS- THE MAIN CONTENTION OF THE ASSESSEE WAS THAT THE INFLOW AND OUTFLOW OF FUND WAS MADE TH ROUGH BANKING CHANNELS AND THE INVESTOR COMPANIES WERE IN COME-TAX ASSESSEE, IT IS SUBMITTED THAT THERE WERE NUMEROUS DECISION AGAINST THE ABOVE SUBMISSION OF THE ASSESSEE. THE B EFITTING REPLY TO THE OBSERVATIONS OF THE ASSESSEE LIES IN T HE OBSERVATIONS OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF M/S. RAJMANDIR ESTATES (P) LTD.[SUPRA]. THE ABOVE COMMENTS MAY KINDLY BE NOTED WITH THE FAC T THAT THE ASSESSEE DID NOT FURNISH ANY DOCUMENTARY EVIDEN CE BEFORE THE ASSESSING OFFICER ABOUT THE CREDITWORTHINESS OF THE INVESTORS VIS-A-VIS GENUINENESS OF THE TRANSACTIONS , IN SPITE OF THE FACT THAT THE ASSESSEE WAS GIVEN REASONABLE OPP ORTUNITY OF BEING HEARD. 5. THE REMAND REPORT SUBMITTED BY THE ASSESSING OFF ICER WAS SENT BY THE LD. CIT(APPEALS) TO THE ASSESSEE-COMPANY FOR IT S COMMENTS/REJOINDER. ITA NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED 7 THE ASSESSEE WAS ALSO CALLED UPON BY THE LD. CIT(AP PEALS) TO SHOW-CAUSE AS TO WHY EVEN THE AMOUNT OF RS.27,80,000/- RECEIVE D DURING THE YEAR UNDER CONSIDERATION ON ACCOUNT OF SHARE CAPITAL ALO NG WITH THE SHARE PREMIUM SHOULD NOT BE ADDED TO ITS TOTAL INCOME UND ER SECTION 68 AND THE INCOME TO THAT EXTENT SHOULD NOT BE ENHANCED. AS NO TED BY THE LD. CIT(APPEALS), THE ASSESSEE, HOWEVER, FAILED TO OFFE R ANY EXPLANATION IN THIS REGARD. KEEPING IN VIEW THIS FAILURE OF THE AS SESSEE AS WELL AS FOR THE REASONS GIVEN IN HIS IMPUGNED ORDER, THE LD. CIT(AP PEALS) NOT ONLY CONFIRMED THE ADDITION OF RS.15,67,92,000/- MADE BY THE ASSESSING OFFICER UNDER SECTION 68 BY TREATING THE SHARE PREM IUM AS UNEXPLAINED CASH CREDIT BUT ALSO ENHANCED THE SAME BY RS.27,80, 000/- BY TREATING EVEN THE SHARE CAPITAL AMOUNT RECEIVED BY THE ASSES SEE DURING THE YEAR UNDER CONSIDERATION AS UNEXPLAINED CASH CREDIT. AGG RIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED TH IS APPEAL BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE MAIN CON TENTION RAISED BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE US IS THAT PROP ER AND SUFFICIENT OPPORTUNITY OF BEING HEARD ON THIS ISSUE WAS NOT GI VEN EITHER BY THE ASSESSING OFFICER OR EVEN BY THE LD. CIT(APPEALS). HE HAS SUBMITTED THAT DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDING S, PROPER AND SUFFICIENT OPPORTUNITY WAS NOT GIVEN BY THE ASSESSI NG OFFICER TO THE ASSESSEE TO EXPLAIN THE RELEVANT CASH CREDIT REPRES ENTING SHARE PREMIUM AMOUNT IN TERMS OF SECTION 68 BY PRODUCING THE RELE VANT DOCUMENTARY EVIDENCE AND WHEN SUCH DOCUMENTARY EVIDENCE FILED B Y THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE T HE LD. CIT(APPEALS) ALONG WITH THE WRITTEN SUBMISSION WAS FORWARDED BY THE LD. CIT(APPEALS) TO THE ASSESSING OFFICER FOR VERIFICATION, THE ASSE SSING OFFICER DID NOT GIVE PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE E VEN DURING THE COURSE OF REMAND PROCEEDINGS TO SUPPORT AND SUBSTANTIATE I TS CASE ON THE ISSUE. HE HAS INVITED OUR ATTENTION TO THE RELEVANT PORTIO N OF THE REMAND REPORT ITA NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED 8 SUBMITTED BY THE ASSESSING OFFICER TO THE LD. CIT(A PPEALS) AS EXTRACTED IN THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) TO POINT OUT THAT THE AMOUNT IN QUESTION WAS TREATED AS UNEXPLAINED CASH CREDIT MAINLY FOR THE REASON THAT THE NOTICES ISSUED BY THE ASSESSING OFFICER UN DER SECTION 133(6) DURING THE COURSE OF REMAND PROCEEDINGS TO THE SHAR E SUBSCRIBERS HAD REMAINED UN-COMPLIED WITH. HE HAS CONTENDED THAT TH E DOCUMENTARY EVIDENCE PRODUCED BY THE ASSESSEE TO SUPPORT AND SU BSTANTIATE ITS CASE, HOWEVER, WAS COMPLETELY OVERLOOKED BY THE ASSESSING OFFICER AS WELL AS BY THE LD. CIT(APPEALS) AND WITHOUT AFFORDING PROPE R AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO MEET THE OBJECTIONS RAISED BY THE ASSESSING OFFICER IN THE REMAND REPORT, THE LD. CIT (APPEALS) NOT ONLY CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R ON ACCOUNT OF SHARE PREMIUM AMOUNT BY TREATING THE SAME AS UNEXPLAINED CASH CREDIT BUT ALSO MADE A FURTHER ADDITION OF RS.27,80,000/- BY TREATI NG EVEN THE SHARE CAPITAL AMOUNT AS UNEXPLAINED CASH CREDIT. HE HAS C ONTENDED THAT THE ASSESSEE-COMPANY IS IN A POSITION TO PRODUCE ALL TH E SHARE SUBSCRIBERS ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE FOR TH E VERIFICATION OF THE ASSESSING OFFICER AND URGED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO DO SO BY SENDING THE MATTER BACK TO THE ASSESSING OFFICER KEEPING IN VIEW THE VIOLATION OF PRINCIPLES OF NATU RAL JUSTICE BY THE AUTHORITIES BELOW. KEEPING IN VIEW ALL THE FACTS AN D CIRCUMSTANCES OF THE CASE AS EXPLAINED BY THE LD. COUNSEL FOR THE ASSESS EE, WE CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO GIVE O NE MORE OPPORTUNITY TO THE ASSESSEE-COMPANY TO EXPLAIN THE RELEVANT CASH C REDIT REPRESENTING SHARE CAPITAL AND SHARE PREMIUM AMOUNT IN TERMS OF SECTION 68 BY PRODUCING THE CONCERNED SHARE SUBSCRIBERS ALONG WIT H THE RELEVANT DOCUMENTARY EVIDENCE FOR VERIFICATION BEFORE THE AS SESSING OFFICER. EVEN THE LD. D.R. HAS NOT RAISED ANY OBJECTION FOR SENDI NG THE MATTER BACK TO THE ASSESSING OFFICER FOR VERIFICATION. THE IMPUGNE D ORDER PASSED BY THE LD. CIT(APPEALS) ON THIS ISSUE IS ACCORDINGLY SET A SIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR D ECIDING THE SAME AFRESH AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO T HE ASSESSEE TO SUPPORT ITA NO. 594/KOL/2018 ASSESSMENT YEAR: 2014-2015 M/S. VASUPUJYA ENTERPRISES PVT. LIMITED 9 AND SUBSTANTIATE ITS CASE BY PRODUCING THE CONCERNE D SHARE SUBSCRIBERS ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE FOR VE RIFICATION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 11, 2019. SD/- SD/- (A.T. VARKEY) (P. M. JAGTAP) JUDICIAL MEMBER VICE-PRESIDENT) KOLKATA, THE 11 TH DAY OF DECEMBER, 2019 COPIES TO : (1) M/S. VASUPUJYA ENTERPRISES PVT. LIMITED, 35, CHITTARANJAN AVENUE, KOLKATA-700012 (2) INCOME TAX OFFICER, WARD-1(3), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 (3) COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKAT A; (4) COMMISSIONER OF INCOME TAX, KOLKATA- , KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.