M/s. Amity Hirise Pvt. Ltd., , Kolkata V. ITO, Ward - 4(3), Kolkata , Kolkata

ITA 746/KOL/2018

AI Insights

The case involves M/s. Amity Hirise Pvt. Ltd., which appealed against the order of the Commissioner of Income Tax (Appeals) for the assessment year 2012-13. The primary contention was regarding the addition of unexplained cash credits under section 68 of the Income Tax Act, 1961, related to share capital and securities premium, which the Assessing Officer treated as bogus. The CIT(A) upheld the AO's decision in an ex parte order due to the non-appearance of the assessee. The Tribunal found that the CIT(A) did not provide a speaking order and that the assessee was not given a fair opportunity to present its case, leading to the decision to remand the matter back to the CIT(A).

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113043 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 04-01-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 18-04-2018
• Other Referred Cases: CIT Vs. Ruby Traders & Exporters Ltd, CIT Vs. B.N. Bhattacharjee
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Bogus Share capital; Opportunity of being heard; Reasonable cause; Set aside
• Section: 68; 144; 234B

Judgement Text

1. ITA Nos.746/Kol/2018 A.Y 2012-13 M/s. Amity Hirise P.Ltd. आयकर अपील य अ धकरण, पीठ “A” , कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL BENCH “A”KOLKATA सम : ी संजय गग , या यक सद य एवं ी ी मनीष बोरड, लेखा सद य Before: Shri Sanjay Garg, Judicial Member and Shri Manish Borad, Accountant Member आयकर अपील सं.य/ ITA No. 746/Kol/2018 A.Y 2012-13 M/s. Amit y Hirise Pvt. Ltd.14C M.D.Road, 4 t h Floor, Kolkata-700 007. बनाम V/s. I.T.O., Ward 4(3), Kolkata, Aa ykar Bhaw an, P-7 Chow ringhee Square, Kolkata-700 069. PAN: AAJCA 8675R अपीलाथ /Appellant .. यथ /Respondent अपीलाथ क ओर से/By Appellant Shri Manoj Kataruka, CA Ld.AR यथ क ओर से/By Respondent Shri Subhrajyoti Bhattacharjee. Ld.CIT/DR स ु नवाई क तार ख/Date of Hearing 05-01-2023 घोषणा क तार ख/ Date of Pronouncement 10-01-2023 आदेश /O R D E R Per Shri Manish Borad, AM : The instant captioned appeal of assessee is filed against the order dt. 24-01-2018 passed by the ld. Commissioner of Income-tax (Appeals), ( in short, referred to the ld. CIT (A ), Kolkata-19, Kolkata for the assessment year 2012-13. 2. ITA Nos.746/Kol/2018 A.Y 2012-13 M/s. Amity Hirise P.Ltd. 2. The assessee has raised the following grounds of appeal :- 1. That, on the facts and in the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals)-19, Kolkata, has erred in law and facts in upholding the order passed by the Ld. ITO Ward - 4(3), Kolkata u/s 144 of the I.T. Act, 1961 (in short "Act") in the case of the appellant, without considering that the order of the Ld. Assessing Officer is arbitrary, illegal, unjustified and against the provisions of law. 2. That, on the facts and in the circumstances of the case and in law, that the Ld. Commissioner of Income Tax (Appeals) erred in passing an ex parte order against the appellant without providing the appellant sufficient time for representation. 3. That, on the facts and in the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) has failed to consider that the Ld. Assessing Officer erred in making addition of as unexplained cash credits u/s 68 of the Income Act, being the Share Capital and Securities Premium. 4. That, on the facts and circumstances of the case, the Ld. Commissioner of Income Tax [Appeals] failed. to consider that the Ld. Assessing Officer erred in initiating ; penalty- proceedings u/s 271 (1 )(c) of the Income Tax Act, 1961. 5. That, on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) failed to consider that the Ld. AO erred in adding interest under section 234A & 234B of the Income Tax Act, 1961. 6. The appellant craves leave to add, amend/modify any grounds of appeal at the time of hearing or before the hearing of appeal. Prayer; It is prayed that the order passed by the Commissioner of Income Tax (Appeals)-19, Kolkata be set aside and full relief may be granted to the appellant. 3. ITA Nos.746/Kol/2018 A.Y 2012-13 M/s. Amity Hirise P.Ltd. 3. Brief facts of the case as culled out from records are that the assessee being a private limited company filed its e-return for the assessment year under consideration declaring a total income at Rs. 1210/-. The case was selected for scrutiny through CASS. Thereafter, statutory notices u/s. 143(2)/142(1) of the Act were issued. On scrutiny the ld. AO found that the assessee company received huge amount of share premium of Rs. 45,67,42,800/- at a premium of Rs.999/- against face value of Re.1/- per share. However, in response to the said notices, the A/R of the assessee appeared on 17-09-2014 and submitted a list of shareholders along with their address. The ld. AO issued notices u/s. 131(1) of the Act to them including director of the assessee company for their personal deposition. But none of them attended before the ld.AO. There was complete non-compliance on behalf of the assessee company. Finally relying on the judgment of the Hon’ble Jurisdictional Calcutta High Court in the case of CIT Vs. Ruby Traders & Exporters Ltd 134 Taxman 29(Cal) and since there was no satisfactory explanation/submission with requisite documents as per section 68 of the Act on behalf of the assessee the ld. AO passed his best judgment assessment u/s.144 of the Act assessing the total income at Rs.47,13,01,210/- making addition of Rs. 471300000/- treating the share capital transaction as bogus u/s. 68 of the Act. 4. Aggrieved, the assessee preferred appeal before the ld. CIT(A), who confirmed this action of the ld. AO by an ex parte order. Before the ld. CIT(A) no body was present on behalf of assessee. Since there was complete non compliance of the assessee with satisfactory explanation/submission, the ld. CIT(A) relying on the judgment of the 4. ITA Nos.746/Kol/2018 A.Y 2012-13 M/s. Amity Hirise P.Ltd. Hon’ble Supreme Court in the case of CIT Vs. B.N. Bhattacharjee 118 ITR 451(SC) & Ors. dismissed the appeal of assessee. 5. Aggrieved, now the assessee is in appeal before this Tribunal. 6. At the outset, the Ld. Counsel for the assessee requested for restoring all the issues raised on merits to the file of the ld. CIT(A) for afresh adjudication since fair opportunity was not given by the ld. CIT(A) in the first round of appeal. 7. Per contra, the Ld. Departmental Representative stated that sufficient opportunity has been provided, but the assessee failed to appear/avail the same before the lower authorities. He vehemently argued supporting the findings of the lower authorities. 8. We have heard the rival contentions and perused the record placed before us. We notice that the ld. AO made the addition towards unexplained cash credit u/s. 68 of the Act of Rs.45.67 crores alleging that to be bogus share capital and share premium, which could not be explained by the assessee. When the matter travelled before the ld. CIT(A), the assessee failed to appear on the respective date of hearing due to which the ld. CIT(A) dismissed the assessee’s appeal and without going into the facts of the case and passing a speaking order, confirmed the addition made by the ld. AO. 9. Before us the Ld. Counsel for the assessee has filed a voluminous paper book containing 597 pages and has contended that on the date(s) of hearing fixed by the ld. CIT(A) on one occasion adjournment was sought and on another occasion communication was not received. 5. ITA Nos.746/Kol/2018 A.Y 2012-13 M/s. Amity Hirise P.Ltd. Thereafter, the ld. CIT(A) passed an ex parte order. Prayer has been made by the ld. Counsel for the assessee for providing one more opportunity of being heard requesting that the issue(s) may be restored to the file of the ld. CIT(A) for afresh adjudication. We notice that the order of the ld. CIT(A) is not a speaking order and just mentioned few lines on assessee’s failure to appear on the given dates of hearing and dismissed all the grounds raised by the assessee and confirmed the addition. Therefore, under the given facts and circumstances and considering that assessee has sufficient material evidence to be placed before the ld. CIT(A), assessee deserves to be granted one more opportunity of being heard and thus set aside the impugned order and restore all the issues raised in the instant appeal on merits to the file of the ld. CIT(A) for necessary adjudication and for passing a speaking order considering the documents/evidences as filed by the assessee before us and providing reasonable opportunity of being heard. We further direct the assessee to remain vigilant and not to seek any adjournment unless otherwise required for reasonable cause. 10. In the result, appeal of assessee is allowed for statistical purpose. Order pronounced in the open court on 10 -01-2023 Sd/- Sd/- ( SANJAY GARG) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated :10-01-2022 **PP/SPS 6. ITA Nos.746/Kol/2018 A.Y 2012-13 M/s. Amity Hirise P.Ltd. आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1.अपीलाथ /Appellant/: M/s. Amity Hirise Pvt. Ltd.14C M.D.Road, 4 th Floor, Kolkata-700 007. 2. यथ /Respondent/: I.T.O., Ward 4(3), Kolkata, Aaykar Bhawan, P-7 Chowringhee Square, Kolkata-700 069. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त- अपील / CIT (A) 5. वभागीय त न ध, आयकर अपील य अ धकरण कोलकाता / DR, ITAT, Kolkata 6.गाड फाइल/Guardfile. By order/आदेश से, /True Copy/ Assistant Registrar ITAT, Kolkata