Subarnashila Merchants Pvt. Ltd., Kolkata V. ITO, Ward 2(3), Kolkata, Kolkata

ITA 731/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6168 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 13-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Section: 143(3); 14A; 68

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI, M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 731 / KOL / 20 17 ASSESSMENT YEAR :2012-13 SUBARNASHILA MERCHANTS PVT. LTD., 7/1 GRANT LANE, 2 ND FLOOR, KOLKATA-700 012 [ PAN NO.AAQCS 8481 A ] V/S . INCOME TAX OFFICER, WARD-2(3), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SIDDHARTH AGARWAL, ADVOCATE /BY RESPONDENT MD. USMAN, CIT-DR /DATE OF HEARING 28-06-2018 /DATE OF PRONOUNCEMENT 18-07-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES AGAINST COMMISSIONER OF INCOME TAX (APPEALS)-1, KOLKATAS O RDER DATED 04.10.2016 PASSED IN CASE NO.1409/CITA1/W-2(3)/2015-16, CONFIRMING AS SESSING OFFICERS ACTION ADDING ITS SHARE CAPITAL / PREMIUM OF 18,66,40,000/- AS WELL AS U/S 14A R.W.S RULE 8D DISALLOWANCE OF 25,902/-, IN PROCEEDINGS U/S 143(3) OF THE INCOME T AX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT EMERGES AT THE OUTSET THAT THE CIT(A)S ORDE R UNDER CHALLENGE AFFIRMING ASSESSMENT FINDINGS ON BOTH THE ABOVE ISSUES HAS BE EN PASSED EX PARTE ON THE GROUND THAT THE ASSESSEE COULD NOT APPEAR ON 28.09. 2016. THE ASSESSING OFFICER HAD FRAMED THE ASSESSMENT IN QUESTION ON 27.03.2015 MAKING SECTION 68 ADDITIONS AND SECTION 14A R.W. RULE 8D DISALLOWANCE OF UNEXPL AINED SHARE APPLICATION / SHARE ITA NO.731/KOL/2017 A.Y. 2012 -13 SUBARNASHILA MERCHANATS PVT. LTD. VS. ITO WD-2(3), KOL. PAGE 2 PREMIUM AMOUNTING TO 18,66,40,000/- AFTER HOLDING THAT THE ASSESSEE HAD NOT DISCHARGED ITS BURDEN OF PROVING THE CONCERNED INVE STORS IDENTITY MUCH LESS GENUINENESS AND CREDITWORTHINESS THEREOF. NEEDLESS TO SAY, THE CIT(A) HAS CONFIRMED THE SAME IN HIS EX PARTE ASSESSMENT ORDER UNDER CHALLENGE. 3. THE ASSESSEES ONLY PLEA BEFORE US IS THAT ITS AUTHORIZED REPRESENTATIVE COULD NOT APPEAR BEFORE THE CIT(A) ON THE SAID LAST DATE OF HEARING ON 28.09.2016 ON ACCOUNT OF HIS ILLNESS. THIS DULY SWORN-IN AFFIDAV IT DATED 22.05.2017 TO THIS EFFECT HAS ALSO BEEN PLACED ON RECORD IN RESPECT THEREOF. LEAR NED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONTENDS THAT THE ASSESSEE HAD WILLFULLY REMAINED ABSENT BEFORE CIT(A). HE FAILS THE DISPUTE THE FACT THAT CIT(A)S ORDER O N MERITS NOWHERE DISCUSSES EITHER OF TWO ISSUES IN THE LIGHT OF SECTION 250(6) OF THE ACT ENVISAGING BOTH POINTS OF DETERMINATION AS WELL AS DETAILED REASONING THEREUP ON. WE THUS DEEM IT APPROPRIATE TO RESTORE THE INSTANT LIS BACK TO THE CIT(A) TO BE DECIDED AFRESH WITHIN THREE OPPORTUNITIES OF HEARING TO BE AFFORD TO THE ASSESS EE. IT IS MADE CLEAR THAT OUR INSTANT REMAND DIRECTIONS WOULD STAND VACATED IN CASE THE T AXPAYER FAILS TO CONCLUDE ITS CASE WITHIN SAID SPECIFIED NUMBER OF OPPORTUNITIES OF HEARING. 4. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTIC AL PURPOSE IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 18 /07/2018 SD/- SD/- ( %) (' %) (M.BALAGANESH) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 18 / 07 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SUBARNASHILA MERCHANTS PVT. LTD., 7/1 GRANT LANE, 2 ND FL,KOL-12 2. /RESPONDENT-ITO WD-2(3), AAYAKAR BHAWAN, P-7 CHOWRING HEE SQ. KOLKATA-69 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,