Naisha Infrastructures pvt. Ltd., Kolkata V. ITO, WD-6(3), KOLKATA, Kolkata

ITA 731/KOL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6077 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 18-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: MANISH TIWARI
• Section: 131; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B, KOLKATA BEFORE SH.P.M.JAGTAP, ACCOUNTANT MEMBER AND SH. S.S.V ISWANETHRA RAVI, JUDICIAL MEMBER ITA NO. 731 /KOL/201 6 [ASSESSMENT YEAR: 200 8 - 0 9 ] APPELLANT BY SH. M ANISH TIWARI, AR RESPONDENT BY SH. S.DASGUPTA, ADDL. CIT DR DATE OF HEARING 05.07.2018 DATE OF PRONOUNCEMENT 11 .07.2018 ORDER PER S .S. VISWANETHRA RAVI, JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 17.02.2016 PASSED BY CIT(A) - 6, KOLKATA FOR AY 2008 - 09. 2. AFTER HEARING BOTH THE PARTIES, WE FIND THAT LD.CIT U/S 263 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) DIRECTED TO CONDUCT INQUIRIES IN RESPECT OF INVESTING COMPANIES AS DETAILED THERE IN AT PAGE NO.4 OF THE ASSESSMENT ORDER. IT IS NOTICED FROM THE AOS ORDER WHILE GIVING EFFECT TO DIRECTIONS OF CIT ISSUE D SUMMONS U/S 131 OF THE ACT TO THE THEN DIRECTORS OF THE ASSESSEE AT A RESPECTIVE ADDRESS ES AND THE SAID SUMMONS RETURNED UNSERVED AND NO COMPLIANCE WAS MADE BEFORE THE AO IN RESPONSE TO NOTICE U/S 131 OF THE ACT. THE CONTENTION OF LD.AR , ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO PROSECUTE ITS CASE BEFORE THE AO IN TERMS OF THE DIRECTIONS AS GIVEN BY CIT IN REVISIONAL PROCEEDINGS. LD.CIT DR DID NOT CONTROVERT THE SAME. THEREFORE, TAKING IN TO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTERESTS OF JUSTICE, WE REMAND THE MATTER TO NAISHA INFRASTRUCTURE PVT.LTD., 23/24, RADHA BAZAR STREET, KOLKATA - 700001. PAN - AACCN6790M VS IT O , WARD - 6(3), AAYKAR BHAWAN, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700069. (APPELLANT) (RESPONDENT) ITA NO.731/KOL/2016 [ASSESSMENT YEAR: 2008 - 09] PAGE | 2 THE FILE OF THE AO FOR ITS CONSIDERATION IN TERMS OF SPECIFIC DIRECTIONS GIVEN BY CIT U/S 263 AS REFLECT AT PAGE NO.4 OF THE ORDER OF AO DATED 29.03.2014. THE RELEVANT PORTION OF WHICH IS REPRODUCED HEREIN BELOW: - I) EXAMINE THE GENUINENESS AND SOURCE OF SHARE CAPITAL, NOT ON A TEST CHECK BASIS, BUT IN RESPECT OF EACH AND EVERY SHAREHOLDER BY CONDUCTING INDEPENDENT ENQUIRY NOT THROUGH THE ASSE SSEE. THE BANK ACCOUNT FOR THE ENTIRE PERIOD SHOULD BE EXAMINED IN THE COURSE OF VERIFICATION TO FIND OUT THE MONEY TRAIL OF THE SHARE CAPITAL. II) FURTHER THE A.O. SHOULD EXAMINE THE DIRECTORS AS WELL AS EXAMINE THE CIRCUMSTANCES WHICH NECESSITATED THE C HANGE IN DIRECTORSHIP IF APPLICABLE. HE SHOULD EXAMINE THEM ON OATH TO VERIFY THEIR CREDENTIALS AS DIRECTOR AND REACH A LOGICAL CONCLUSION REGARDING THE CONTROLLING INTEREST. III) THE A.O. IS DIRECTED EXAMINE THE SOURCE OF REALIZATION FROM THE LIQUIDATION OF ASSETS SHOWN IN THE BALANCE SHEET AFTER THE CHANGE OF DIRECTORS, IF ANY. 3 . THE ASSESSEE IS AT LIBERTY TO FILE EVIDENCES IF ANY IN SUPPORT OF ITS CONTENTION. AO SHALL CONSTRUCT THE SAME TO PASS AN ORDER IN ACCORDANCE WITH LAW BY GIVING OPPORTUNITY TO THE ASSESSEE. THEREFORE, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORD ER PRONOUNCED IN THE OPEN COURT 1 1 . 0 7 . 2 0 1 8 . SD / - S D / - (P.M.JAGTAP) (S.S. VISWANETHRA .RAVI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: - 1 1 .07.2018 *AMIT KUMAR* ITA NO.731/KOL/2016 [ASSESSMENT YEAR: 2008 - 09] PAGE | 3 COPY FORWARDED TO: 1. APPELLANT - NAISHA INFRASTRUCTURE PVT.LTD., 23/24, RADHA BAZAR STREET, KOLKATA - 700001. 2. RESPONDENT - ITO, WARD - 6(3), AAYKAR BHAWAN, P - 7, CHOWRINGHEE SQUARE, KOLKATA - 700069. 3. CIT 4. CIT(APPEALS) CONCERNED 5. DR: ITAT SR.P.S./H.O.O ITAT, KOLKATA