DCIT, Circle - 1, Kolkata, Kolkata V. M/s. Prism Impex Pvt. Ltd., Kolkata

ITA 712/KOL/2011

• Counselvise Citation: [2013] 119 COUNSELVISE.COM (IT) 2925 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2013
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 09-05-2011
• Court: TRIBUNAL
• Department Lawyers: L K S DEHIYA
• Assessee Lawyers: A K TULSIYAN
• Keywords: Opportunity of being heard
• Section: 143(3); 68; 6

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . . . . . . . , /AND ! ' ! , ) [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM] # # # # / I.T.A NO. 712/KOL/2011 '$% &' '$% &' '$% &' '$% &'/ // / ASSESSMENT YEAR: 2006-07 DEPUTY COMMISSIONER OF INCOME-TAX, VS. M/S. PRISM IMPEX PVT. LTD. CIRCLE-1, KOLKATA. (PAN:AABCP8240K) ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 18.03.2013 DATE OF PRONOUNCEMENT: 18.03.2013 FOR THE APPELLANT: SHRI L. K. S. DEHIYA, CIT (DR) FOR THE RESPONDENT: SHRI A. K. TULSIYAN, ADVOCATE - / ORDER PER BENCH: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-I, KOLKATA IN APPEAL NO. R- 1/CIT(A)-I/CIR.1/08-09 DATED 14.02.2011. ASSESSMENT WAS FRAMED BY DCIT, CIRCLE-1, KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE HIS ORDER DATED 30.12.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) DELETING THE ADDITION MADE BY AO BY INVOKING THE PROVISIONS OF S ECTION 68 OF THE ACT AS THE ASSESSEE FAILED TO DISCHARGE ITS ONUS THAT THE SOURCE OF SHARE PREM IUM AMOUNT WAS TRAILED TO CASH DEPOSIT WHICH REMAINED UNVERIFIED. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NOS. 4 TO 6: 4.THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.3,57,60,000/- MADE U /S. 68 OF THE ACT BY A.O., MERELY ON THE GROUND THAT THE ASSESSEE HAS DISCHARGED ITS ONUS OF PROVIDING THE GENUINENESS, IDENTITY AND CREDITWORTHINESS OF THE TRANSACTIONS WHEN FACT WAS THAT THE ORIGINAL SOURCE OF THE SHARE PREMIUM AMOUNT OF RS.3,57,60,000/- AS CASH DE POSIT IN UNKNOWN PERSONS ACCOUNT. 5.THAT THE LD. CIT(A) HAS ERRED IN DELETING THE ADD ITION U/S. 68 WITHOUT APPRECIATING THE FACTS OF THE CASE THAT THE SOURCE OF SHARE PREMIUM AMOUNT WAS TRAILED TO CASH DEPOSITS WHICH REMAINED UNVERIFIED. 6. THAT THE LD. CIT(A) HAS ERRED IN DELETING THE AD DITION OF RS.3,57,60,000/- MADE U/S. 68 OF THE ACT BY THE A.O. WITHOUT APPRECIATING THE FAC T THAT THE ASSESSEE WAS THE ABSOLUTE AND THE ULTIMATE BENEFICIARY OF CASH DEPOSITS INTRODUCE D AS SHARE PREMIUM THROUGH A SERIES OF TRANSACTIONS. 2 ITA NO.712/K/2011 PRISM IMPEX PVT. LTD. AY: 2006-07 IT IS TO BE MENTIONED THAT THERE IS NO GROUND NOS. 1 TO 3 IN THIS APPEAL OF REVENUE. 3. AT THE OUTSET, LD. CIT(DR) SHRI L. K. S. DEHIYA FIRST OF ALL TOOK US TO TRIBUNALS ORDER IN FIRST ROUND I.E. ITA NO.385/K/2010, DCIT VS. M/S . PRISM IMPEX PVT. LTD., AY 2006-07, DATED 31.08.2010, WHEREBY TRIBUNAL IN PARA 6 HAS SE T ASIDE THE ISSUE AS UNDER: 6.AFTER HEARING THE RIVAL SUBMISSIONS AND ON CARE FUL PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, IT IS OBSERVED THAT THOUGH HANUMAN FREIG HT & CARRIERS (P) LTD.& SIGNET MERCHANDISE (P) LTD. HAS FILED COPIES OF THE LETTER IN RESPONSE TO NOTICE U/S. 136 LEDGER COPIES, COPIES OF THE ASSESSEES BANK STATEMENT, CO PIES OF SHARE APPLICANTS ASSESSMENT ORDER. IT IS OBSERVED FROM THE FINAL ACCOUNTS THAT IN BOTH THE CASES THE SAID COMPANIES HAS PAID SHARE PREMIUM OF RS.990/- PER SHARE. THE ASSESSEE HAS NOT FILED ANY DOCUMENTS WHETHER THE ASSESSEE IS IN HABIT OF TAKING THE SHAR E PREMIUM FROM EACH SUBSCRIBER TO THE SHARES OR NOT OR SHARE PREMIUM HAS BEEN COLLECTED F ROM THE TWO TRANSACTIONS. TO THIS EFFECT ASSESSEE HAS NOT FILED ANY DOCUMENTS. IT IS FURTHER OBSERVED THAT BOTH THE COMPANIES HAS SHOWN THEIR INVESTMENTS AS PER SCHEDU LE 3. WHEN WE HAVE PERUSED SCHEDULE 3 IN RESPECT OF HANUMAN FREIGHT & CARRIERS (P) LTD. WHICH WAS APPEARING AT PAGE 41 OF THE PAPER BOOK AND AGAIN SCHEDULE 3 IN R ESPECT OF SIGNET MERCHANDISE PVT. LTD. WHICH WAS APPEARING AT PAGE 80, IT WAS MENTION ED THAT, AS PER SEPARATE SHEET ATTACHED, NO DETAILS ARE AVAILABLE ON RECORD. SINC E THE LD. CIT(A) IS HAVING CO-TERMINUS POWER THAN THAT OF ASSESSING OFFICER, IN OUR CONSID ERED OPINION, THE FINDINGS GIVEN BY THE LD. CIT(A) THAT THE ASSESSEE HAS PROVED THE GENUINE NESS, IDENTITY AND CREDITWORTHINESS OF THE TRANSACTIONS WITHOUT CONSIDERING THE ABOVE FACT S WAS NOT JUSTIFIED. IT IS FURTHER OBSERVED THAT THE LD. CIT(A) HAS NOT CONSIDERED THE OBSERVATIONS MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. THE ASSESSING OFF ICER HAS OBSERVED THAT THE ASSESSEE HAS ENGAGED IN PURCHASE AND SALE OF SHARES AND THE TURNOVER OF SUCH TRANSACTIONS WERE ABOUT HUNDRED CRORES TAKING TOGETHER THE PURCHASE A ND SALE OF SHARES IN THE FINANCIAL YEAR 2005-06. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT BACK TO THE FILE OF THE LD. CIT(A) TO RE-DECIDE THE ISSUE AFTER VERIFYING WHETHER THE ASSESSEE HAS TAKEN THE SHARE PREMIUM FROM ALL THE SHARE APPLICANTS OR NOT AND HANUMAN FREIGHT & CARRIERS (P) LTD. AS WELL AS SIGNET MERCHANDISE PVT. HAS REF LECTED THE SAME IN THEIR RESPECTIVE INVESTMENT (AS THE SAME ARE NOT AVAILABLE ON RECORD ) AND DECIDE THE ISSUE AFRESH AFTER REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. HE PARTICULARLY REFERRED TO 6 TH LINE AT PAGE 4 PARA 6 OF THE TRIBUNALS ORDER AND STATED THAT THE FINDING OF CIT(A) IS WITHOUT GOING INTO THE FACTS A ND WITHOUT CONSIDERING THE OBSERVATIONS MADE BY AO IN THE ASSESSMENT ORDER. EVEN THE DIREC TION OF THE TRIBUNAL WAS THAT THE CIT(A) TO RE-DECIDE THE ISSUE AFTER VERIFYING WHETHER THE ASS ESSEE HAD TAKEN THE SHARE PREMIUM FOR ALL THE SHARE APPLICANTS OR NOT INCLUDING HANUMAN FREIGHT & CARRIERS PVT. LTD. AS WELL AS SIGNET MERCHANDISE PVT. LTD. AND WHETHER THEY HAVE REFLECT ED THE SAME IN THE RESPECTIVE INVESTMENT OR NOT AS THE SAME ARE NOT AVAILABLE ON RECORD. HE THEN REFERRED TO CIT(A)S ORDER NOT COMPLYING THE DIRECTIONS OF TRIBUNAL IN PARA 10 AS UNDER: 10. ON THE BASIS OF SUBMISSION MADE BY THE APPELLA NT REMAND REPORT OF THE ASSESSING OFFICER AND THE CASE LAWS CITED AND RELIED UPON BY APPELLANT AND THE ASSESSING OFFICER AND IN VIEW OF THE MATTERS EXAMINED BY ME AS PER TH E DIRECTIONS ISSUED BY THE HONBLE TRIBUNAL TO VERIFY THE VARIOUS ASPECTS AS STATED AB OVE. I HAVE COME TO THE CONCLUSION THAT 3 ITA NO.712/K/2011 PRISM IMPEX PVT. LTD. AY: 2006-07 NO NEW FACT OR ASPECT HAS EMERGED EITHER FROM THE S UBMISSION OF THE APPELLANT OR THE FINDINGS OF THE ASSESSING OFFICER, ALL THE GROUNDS RAISED AND DECIDED BY THE THEN CIT(A)-1 REMAINS THE SAME AS QUOTED ABOVE. LD. CIT(DR) IN VIEW OF THE ABOVE PARA 10 STATED THA T THE CIT(A) HAS NOT EXAMINED ANY OF THE ISSUES RAISED IN THE DIRECTIONS OF THE TRIBUNAL AND DIRECTIONS OF THE TRIBUNAL ARE UN COMPLIED. ON QUERY FROM THE BENCH, LD. COUNSEL FOR THE ASSESS EE STATED THAT HE HAS FILED COMPLETE DETAILS IN HIS PAPER BOOK CONSISTING OF PAGES 1 TO 131 AND WHEN A FURTHER QUERY WAS PUT TO HIM, HE STATED THAT THESE DETAILS WERE NOT BEFORE THE AO. 4. WE HAVE GONE THROUGH THE ASSESSMENT ORDER AS WEL L AS THE ORDER OF CIT(A). WE HAVE ALSO PERUSED THE TRIBUNALS ORDER AND DIRECTIONS CO NTAINED THEREIN. AFTER GOING THROUGH THE FACTS IN ENTIRETY, WE ARE OF THE VIEW THAT THE CIT( A) HAS NOT EXAMINED THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTION QUA THESE CREDITORS AND EVEN HAS NOT EXAMINED THE ISSUE OF THE SOURCE OF SHARE PREMIUM AMOUNT AS TRAILED TO CASH DEPOSIT, WHICH REMAINS UNVERIFIED. IN SUCH CIRCUMSTANCES, WE HAVE NO ALTE RNATIVE EXCEPT TO SET ASIDE THIS ISSUE TO THE FILE OF AO. HENCE, THIS APPEAL OF REVENUE IS ALLOW ED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 18.03.2013 SD/- SD/- . . . . . . . . , ! ! ! ! ' ! ' ! ' ! ' ! , (P. K. BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( . . . .) )) ) DATED : 18TH MARCH, 2013 /0 '$12 '3 JD.(SR.P.S.) 4 ITA NO.712/K/2011 PRISM IMPEX PVT. LTD. AY: 2006-07 - 4 +''5 65&7- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT DCIT, CIRCLE-1, KOLKATA. 2 +,)* / RESPONDENT M/S. PRISM IMPEX PVT. LTD., SHANTINI KETAN BUILDING, 8, CAMAC STREET, 4 TH FLOOR, ROOM NO.409, KOLKATA-700 017. . 3 . '-$ ( )/ THE CIT(A), KOLKATA 4. 5. '-$ / CIT KOLKATA 5<'= +'$ / DR, KOLKATA BENCHES, KOLKATA ,5 +'/ TRUE COPY, -$>/ BY ORDER, ! 2 /ASSTT. REGISTRAR .