CNG Agrocare pvt Ltd., Kolkata V. ITO, Ward 9(3), Kolkata, Kolkata

ITA 620/KOL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6913 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 30-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Set aside
• Section: 143(3); 250

Judgement Text

1 ITA NO. 620/KOL/2017 CNG AGROCARE PVT. LTD, AY 2012-13 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 620 /KOL/2017 ASSESSMENT YEARS: 2012-13 CNG AGROCARE PVT. LTD. (PAN: AADCC6364K) VS. INCOME-TAX OFFICER, WARD-9(3), KOLKATA APPELLANT RESPONDENT FOR THE APPELLANT SHRI MIRAJ D. SHAH, AR FOR THE RESPONDENT SHRI SANKAR HALDER, JCIT, SR. D R DATE OF HEARING 13.02.2019 DATE OF PRONOUNCEMENT 01.05.2019 ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL OF THE ASSESSEE ARISES OUT OF ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 16, KOLKATA FOR AY 2012-13 DATED 31.01.2017. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IS AGAINST TH E ACTION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.3,70,40,000/- U/S. 68 OF THE INC OME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. AT THE OUTSET ITSELF, THE LD. AR DREW OUR ATTEN TION TO THE FACT THAT IN ORDER TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF T HE SHARE CAPITAL AND SHARE PREMIUM RECEIVED BY THE ASSESSEE COMPANY FROM SIX SHAREHOLD ERS WHICH AGGREGATES TO RS.3,70,40,000/- WHICH IS AS UNDER: 2 ITA NO. 620/KOL/2017 CNG AGROCARE PVT. LTD, AY 2012-13 SL. NO. NAME AND ADDRESS PAN NO. OF SHARES AMOUNT IN RS. (INCLUDING PREMIUM) 1. CHANDA GUPTA, 18/1, M D ROAD, 4 TH FLOOR, KOLKATA-700 007 ADUPG7663C 2000 8,00,000.00 2. NIRAJ GUPTA, P-143, LAKE TOWN, BLOCK-B, 4 TH FLOOR, KOLKATA-89 AHFPG3605N 750 3,00,000.00 3. MANOJ AGARWAL, 18/1, M. D ROAD, 4 TH FLOOR, KOLKATA-700007. AFIPA7391B 1100 4,40,000.00 4. DEEPAK AGARWAL, 18/1,M. D. ROAD, 4 TH FLOOR, KOLKATA-700007 AEXPA1266K 250 1,00,000.00 5. R. B. GUPTA & SONS (HUF), 18/1,M. D. ROAD, 4 TH FLOOR, KOLKATA- 700007 AAGHR5132N 750 3,00,000.00 6. BRIGHTSTAR VINCOM PVT. LTD. 18/1,M. D. ROAD, 4 TH FLOOR, KOLKATA- 700007 AADCB2082R 87,750 3,51,00,000.00 TOTAL 92,600 3,70,40,000.00 4. IT WAS BROUGHT TO OUR NOTICE THAT OUT OF THE SIX SHARE APPLICANTS THE FIRST FIVE ARE INDIVIDUALS AND THEY ALTOGETHER HAVE CONTRIBUTED ON LY APPROXIMATELY RS. 19 LACS AND HAVE PAN AND THEY ARE ALL INCOME TAX ASSESSEES. THE BALA NCE AMOUNT OF RS. 3.51 CR. HAVE BEEN SUBSCRIBED BY M/S. BRIGHTSTAR VINCOM PVT. LTD. ACC ORDING TO LD. AR, THE AO HAS DRAWN ADVERSE INFERENCE AGAINST THE ASSESSEE MERELY BECAU SE THE DIRECTORS OF THE SHARE SUBSCRIBING COMPANIES AND OTHER INDIVIDUALS DID NOT APPEAR BEFO RE HIM. THEREFORE, HE MADE THE ADDITION OF THE ENTIRE SHARE CAPITAL AND PREMIUM. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO WAS PLEASED TO CON FIRM THE ORDER OF THE AO BY A CRYPTIC AND NON-SPEAKING ORDER. AGGRIEVED, THE ASSESSEE IS BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE AFORESAID FACTS AS NARRATED BY THE LD. A R ARE NOT REPEATED FOR THE SAKE OF BREVITY. HOWEVER, AN IMPORTANT FACT HAS BEEN BROUGHT TO OUR NOTICE WHICH WAS NOT BEFORE THE LOWER AUTHORITIES WAS THAT M/S. BRIGHTSTAR VINCOM PVT. LT D. HAD SUBSCRIBED RS. 3.51 CR. OUT OF TOTAL RS.3.70 CR. SUBSCRIBED IN THE SHARE CAPITAL AS WELL AS PREMIUM IN THE ASSESSEE COMPANY. AND THAT ASSESSMENT OF M/S. BRIGHTSTAR VINCOM PVT. LTD. FOR AY 2012-13 WAS SCRUTINIZED BY THE AO U/S. 143(3) OF THE ACT AND THE AO WAS PLE ASED TO ASSESS THE INCOME OF M/S. BRIGHTSTAR VINCOM PVT. LTD. AT RS.3,58,75,570/-. T HE ASSESSMENT ORDER HAS BEEN PLACED BEFORE US. THE FACT OF M/S. BRIGHTSTAR VINCOM PVT. LTD., WHICH HAS SUBSCRIBED RS.3.51 CR. 3 ITA NO. 620/KOL/2017 CNG AGROCARE PVT. LTD, AY 2012-13 OUT OF RS.3,70 CR. (SUBSCRIBED BY ALL SIX), WE NOTE THAT THIS IS AN IMPORTANT PIECE OF EVIDENCE WHICH IS REQUIRED TO HAVE BEEN TAKEN NOTE BY THE AO . WE NOTE THAT THE ASSESSMENT ORDER FOR M/S. BRIGHTSTAR VINCOM PVT. LTD. HAS BEEN PASSED ON 23.03.2015 AND THE ASSESSMENT OF THE ASSESSEE HAS BEEN PASSED ON 28.03.2015. SO, SINCE THIS IS AN IMPORT FACT WHICH NEED TO BE CONSIDERED BY THE AO FOR EFFECTIVE/FAIR ASSESSMENT OF THE ASSESSEE, WE ARE INCLINED TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMAND THE MA TTER BACK TO THE FILE OF AO TO ASSESS DE NOVO FOR AY 2012-13 IN ACCORDANCE TO LAW. THEREFOR E, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN THE OPEN COURT ON 01/05/201 9 SD/- SD/- (DR. A. L. SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1ST MAY, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT C.N.G AGROCARE PVT. LTD., 18/1, M. D. ROAD, 4 TH FLOOR, ROOM 48, KOLKATA- 700 007. 2 RESPONDENT ITO, WARD-9(3), KOLKATA. 3 4 5 CIT(A)-16, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR