M/s Red Hot Mercantile Pvt. Ltd., Kolkata V. ITO, WD-4(2), KOLKATA, Kolkata

ITA 761/KOL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0481 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 22-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G HANGSHING
• Assessee Lawyers: S M SURANA
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 142(1); 131; 68; 263

Judgement Text

ITA NO.761/KOL/2016 M/S RED HOT MERCANTILE PVT. LTD . A.Y.2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH KO LKATA [BEFORE HONBLE SHRI J.SUDHAKAR REDDY, AM & SMT. MADHUMITA ROY, JM ] ITA NO.761/KOL/2016 ASSESSMENT YEAR : 2008-09 M/S RED HOT MERCANTILE PVT.LTD. -VERSUS- I.T. O. WARD-4(2), KOLKATA KOLKATA (PAN: AAECR 0317E) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI S.M.SURANA, AR FOR THE RESPONDENT: SHRI G.HANGSHING, CIT, DR DATE OF HEARING : 11.09.2018 DATE OF PRONOUNCEMENT : 14.09.2018. ORDER PER MADHUMITA ROY, JM THE INSTANT APPEAL HAS BEEN FILED BY THE ASSESSEE B EFORE US AGAINST THE ORDER DATED 20.01.2016 PASSED BY THE LD. CIT(A)-2, KOLKAT A U/S 147/143(3)/263/143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) AR ISING OUT OF THE ORDER DATED 26.03.2014 PASSED BY THE I.T.O., WARD-4 (2), KOLKAT A FOR A.Y.2008-09. 2. IN THE INSTANT CASE, THE INCOME OF THE ASSESSEE WAS DETERMINED AT RS.2,40,231/- ON 17.05.2010 U/S 147/143(3) OF THE ACT. NOTICE U/S 142(1) OF THE ACT DATED 23.01.2014 WAS SERVED ON THE ASSESSEE WHEREUPON SOM E RELEVANT DETAILS WERE SUBMITTED BEFORE THE AO BY THE REPRESENTATIVE OF TH E ASSESSEE. NOTICE U/S 131 OF THE ACT WERE ALSO SERVED UPON THE THEN DIRECTORS SHRI AJAY KUMAR MODI AND SHANKAR KUMAR AGARWAL TO VERIFY THE GENUINENESS AND CREDITW ORTHINESS OF THE SHAREHOLDER. THE NOTICES CAME BACK WITH THE POSTAL REMARK MARKED AS NOT KNOWN WHEREUPON A SHOW CAUSE NOTICE WAS ISSUED UPON THE ASSESSEE ON 1 4.03.2014 SINCE THE DIRECTORS REMAINED UNVERIFIED AND UNEXAMINED. THE ASSESSEE WA S DIRECTED TO EXPLAIN WHY THE ENTIRE SHARE APPLICATION MONEY RECEIVED BY HIM SHOU LD NOT BE CONSIDERED AS ITA NO.761/KOL/2016 M/S RED HOT MERCANTILE PVT. LTD . A.Y.2008-09 2 UNEXPLAINED INCOME OF THE COMPANY. HOWEVER, NO COMP LIANCE, HAS BEEN DONE ON BEHALF OF THE ASSESSEE COMPANY. SINCE THE GENUINENE SS AND CREDITWORTHINESS OF THE DIRECTORS OF THE COMPANY DURING THE YEAR AS CLAIMED REMAINED UNPROVEN AND CONSEQUENTLY THE BUSINESS OF THE ASSESSEE COMPANY A ND THE GENUINENESS OF THE FRESH SHARE CAPITAL INTRODUCED DURING THE YEAR ALSO REMAI NED UNVERIFIED UNEXAMINED AND UNEXPLAINED FRESH SHARE CAPITAL RAISED BY THE COMPA NY DURING THE RELEVANT PREVIOUS YEAR WHICH WAS DISCLOSED BY THE ASSESSEE TO THE TUN E OF RS.107,750,000/- OUT OF WHICH RS.54,82,500/- WAS ISSUED AS PAID UP SHARES AND RS. 10,22,67,500 BEING THE PREMIUM AMOUNT FOR ISSUE OF SHARES REMAINED UNEXPLAINED AND THE ENTIRE AMOUNT HAS BEEN CONSIDERED TO BE ASSESSEES INCOME FROM UNDISCLOSED SOURCE OF THE RELEVANT PREVIOUS YEAR WHICH HAD BEEN INTRODUCED BY THE COMPANY OF TH E SHARE CAPITAL AS OPINED BY THE LD. AR AND ADDED TO THE INCOME OF THE ASSESSEE AGAI NST WHICH THE APPEAL WAS PREFERRED. HOWEVER, THE LD. CIT(A) ADMITTEDLY PASSE D AN ORDER ON 20.01.2016 EXPARTE CONFIRMING THE ORDER PASSED BY THE AO WITH THE FOLL OWING OBSERVATIONS : 6.14. AS DISCUSSED HEREINABOVE, THE ERSTWHILE DIRE CTORS OF THE ASSESSEE COMPANY HAD NOT APPEARED BEFORE THE AO IN RESPONSE TO HI SU MMON ISSUED U/S 131 AND THE ASSESSEE ALSO FAILED TO PRODUCE THEM BEFORE THE AO. THE PRESENCE OF THE PERSONS WORKING AS DIRECTORS OF THE ASSESSEE COMPANY WHEN T HE ALLEGED SHARE APPLICATION MONEY WAS RAISED, WAS OF IMMENSE IMPORTANCE TO UNDE RSTAND THE MODUS- OPERANDI OF THE BUSINESS AND TO ESTABLISH THE GENUI NENESS OF THE TRANSACTIONS AND CREDITWORTHINESS OF THE SUBSCRIBING COMPANIES. THE ASSESSEE, THEREFORE, FAILED TO PROVE THE IDENTITY AND CAPACITY OF THE SO-CALLED SH AREHOLDERS ALONG WITH THE GENUINENESS OF THE TRANSACTIONS. THIS BEING THE ISS UES AND ALSO CONSIDERING THE PERNICIOUS PRACTICE OF CONVERSION OF UNACCOUNTED MO NEY THROUGH MASQUERADE OF INVESTMENT IN THE SHARE CAPITAL OF A COMPANY, THE A O, THEREFORE, WAS WITHIN HIS JURISDICTION IN TREATING SUCH SHARE CAPITAL AND SHA RE PREMIUM AS UNACCOUNTED CASH CREDIT OF THE ASSESSEE COMPANY AND ADDING THE SAME U/S 68 OF THE ACT. THE ADDITION OF RS.10,77,50,000/- IS THEREFORE, CONFIRM ED. 3. AT THE TIME OF HEARING OF THE INSTANT APPEAL THE LD. AR SUBMITTED BEFORE US FOR REMITTING THE ISSUE TO THE FILE OF AO FOR RE-EXAMIN ATION OF THE MATTER AFRESH UPON FOLLOWING THE GUIDELINES FRAMED BY THE LD. CIT DA TED 30.03.2013 PASSED U/S 263 OF THE ACT FOR CONDUCTING DEEP INVESTIGATION TO UNEART H THE FACTS TO DETERMINE THE ITA NO.761/KOL/2016 M/S RED HOT MERCANTILE PVT. LTD . A.Y.2008-09 3 IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE S HAREHOLDER. THE LD. DR, HOWEVER, RELIES ON THE ORDERS PASSED BY THE AUTHORITIES BEL OW. 4. THE LD. AR ALSO RELIES ON THE ORDERS PASSED BY T HE COORDINATE BENCH OF THE LD. TRIBUNAL IN ITA NO.1104/KOL/2016 FOR A.Y.2009-10 (M /S SHRIRAM TIE UP LTD VS ITO) AND IN ITA NO.1240/KOL/2012 (ITO VS M/S DEEP SHIKHA DISTRIBUTORS PVT. LTD.) 5. WE HAVE HEARD THE LD. COUNSEL APPEARING FOR THE PARTIES AND PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. WE FIND THA T ADMITTEDLY NO PROPER ENQUIRY HAS BEEN DONE BY THE LD. AO IN TERMS OF THE FOLLOWING G UIDELINES FRAMED BY CIT IN SIMILAR CIRCUMSTANCES AS ON 30.03.2016. ' THE A.O. IS DIRECTED TO :(I) EXAMINE THE GENUINEN ESS 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 A S WELL AS EXAMINE THE CIRCUMSTANCES WHICH NECESSITATED THE CHANGE IN DIRE CTORSHIP IF APPLICABLE. HE SHOULD EXAMINE THEM ON OATH TO VERIFY THEIR CREDENT IALS AS DIRECTOR AND REACH A LOGICAL CONCLUSION REGARDING THE CONTROLLING INTERE ST. (III) THE A.O. IS DIRECTED EXAMINE THE SOURCE OF RE ALIZATION FROM THE LIQUIDATION OF ASSETS SHOWN IN THE BALANCE SHEER AFTER THE CHANGE OF DIRECTORS / IF ANY. ' 6. FURTHER THAT THE ISSUE IN SIMILAR CIRCUMSTANCES MATTER HAS BEEN DEALT WITH BY THE CO-ORDINATE BENCH OF THIS LD. TRIBUNAL AS RELIED UP ON BY THE LD. REPRESENTATIVE OF THE ASSESSEE. THE RELEVANT OBSERVATIONS ARE AS FOLLOWS :- 5. COMING TO THE ORDER OF THE AO AT PARA13 IT IS S TATED THAT THE SUMMONS WAS SENT TO THE DIRECTORS OF THE ASSESSEE COMPANY AS WE LL AS DIRECTORS OF THE INVESTING COMPANIES BUT NONE OF THEM APPEARED. BEFO RE THE LD. CIT(A), THE ASSESSEE HAS SPECIFICALLY STATED THAT NO SUMMONS U/ S 131 OF THE INCOME TAX ACT, 1961 WERE RECEIVED BY THE ASSESSEE. IT WAS ALSO A RGUED THAT THE ASSESSING OFFICER HAS NOT MADE ANY INDEPENDENT ENQUIRY AT HIS END, TO DISPROVE THE CLAIM OF THE ASSESSEE COMPANIES. THE SUM AND SUBSTANCES OF THE A RGUMENTS OF THE REVENUE IS THAT THE LD. CIT(A) HAS PASSED A MECHANICAL ORDER W ITHOUT CONSIDERING THE LEGAL POSITION AND THE FACTS OF THE CASE AS BROUGHT OUT B Y THE AO. THE LD. COUNSEL FOR ITA NO.761/KOL/2016 M/S RED HOT MERCANTILE PVT. LTD . A.Y.2008-09 4 THE ASSESSEE SUBMITS THAT THE AO HAS NOT GIVEN ADEQ UATE OPPORTUNITY AND HAS PASSED AN ORDER WITHOUT ENQUIRING. HE SUPPORTS THE ORDER OF THE LD. CIT(A). 6. IN THE CASE OF SRIRAM TIE UP PVT. LTD. SUPRA AT PARA 6 AND 7 HELD AS FOLLOWS: 6. IN THE CASE OF M/S. SUKANYA MERCHANDISE PVT. LTD . VS ITO (ITA 291/KOL/2016 DATED 15.12.2017) CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE, A SIMILAR VIEW HAS BEEN TAKEN BY THE CO-ORDINATE BENC H OF THIS TRIBUNAL AND THE SIMILAR ISSUE RELATING TO THE ADDITION MADE UNDER S ECTION 68 ON ACCOUNT OF SHARE CAPITAL CONTRIBUTION BY TREATING THE SAME AS UNEXPL AINED CASH CREDITS IS RESTORED BACK BY THE TRIBUNAL TO THE FILE OF THE A.O. IN ALM OST SIMILAR SITUATION AFTER RECORDING ITS OBSERVATIONS / FINDINGS AS UNDER: WE NOTE THAT THE AO PURSUANT TO THE ORDER OF LD. CI T HAD TAKEN NOTE OF THE DIRECTIONS OF THE LD. CIT AND ISSUED NOTICE U/S . 142(1) DATED 16.08.2013 AND HAS ACKNOWLEDGED THAT THE ASSESSEE H AD FURNISHED THE COPY OF FINAL ACCOUNT, I. T. ACKNOWLEDGEMENT, BANK STATEMENT FOR THE RELEVANT PERIOD EVIDENCING THE RECEIPT OF SHARE APP LICATION MONEY FROM THE SHARE APPLICANTS. THEREAFTER, THE AO MAKES CER TAIN INFERENCES BASED ON THE LIST OF SHAREHOLDERS AND TAKING NOTE OF THE BANK STATEMENT FURNISHED BY THE ASSESSEE. WE NOTE THAT AFTER THE INITIAL NO TICE DATED 16.08.2013, THEREAFTER THE AO HAD ISSUED THE NOTICE ON 26.02.20 14 WHICH HAS BEEN REPRODUCED AT PAGE 3 OF THE REASSESSMENT ORDER, WHE REIN AO REQUIRED THE DIRECTORS OF THE ASSESSEE COMPANY TO BE PRESENT BEF ORE HIM ON 06.03.2014. HOWEVER, ACCORDING TO THE LD. AR, THE ASSESSEE RECEIVED THE NOTICE ONLY ON 07.03.2014 AND THEREAFTER, THE ASSES SEE REQUESTED THE AO TO PROVIDE ANOTHER OPPORTUNITY OF HEARING VIDE ITS LETTER DATED 20.03.2014. THEREAFTER, THE AO FIXED THE DATE OF HEARING ON 12. 03.2014 VIDE NOTICE DATED 10.03.2014. SO, ACCORDING TO THE ASSESSEE CO MPANY SINCE THE DIRECTORS WERE NOT IN STATION TILL 23.03.2014, THE LD. AR HAD REQUESTED FOR ADJOURNMENT TILL THAT TIME. THOUGH THE AO HAS STATE D THAT HE HAS ISSUED SUMMONS ON 24.03.2014 TO THE ASSESSEE COMPANY TO PR ODUCE THE DIRECTORS OF THE COMPANY BEFORE HIM ON 26.03.2014, THE ASSESS EE COMPANY CONTENDED THAT IT HAS NOT RECEIVED THE SAID SUMMON AND, THEREFORE, COULD NOT MAKE THE PERSONAL APPEARANCE. THE AO HAS DRAWN ADVERSE CONCLUSION BASICALLY BECAUSE OF NON-APPEARANCE OF T HE DIRECTORS OF THE ASSESSEE COMPANY AND THAT OF THE SHAREHOLDER COMPAN IES. WE NOTE THAT INITIALLY THE AO STARTED THE ENQUIRY ON 16.08.2013 WHICH WAS COMPLIED BY THE ASSESSEE BY SUBMITTING DOCUMENTS WHICH HAS BEEN ACKNOWLEDGED BY THE AO. THEREAFTER, THE ENQUIRY WAS STARTED ONLY AT THE FAG END OF ITA NO.761/KOL/2016 M/S RED HOT MERCANTILE PVT. LTD . A.Y.2008-09 5 FEBRUARY 2014 AND THE ASSESSEE COMPANY HAD INFORMED THE AO THAT THEIR DIRECTORS WERE OUT OF STATION TILL 23.03.2014. IN THE LIGHT OF THE AFORESAID FACTS, WE ARE OF THE OPINION THAT THE ASSESSEE DID NOT GET FAIR OPPORTUNITY TO PRESENT THE EVIDENCES BEFORE THE AO SO, THERE WA S A LACK OF OPPORTUNITY AS AFORESAID, THEREFORE, IT HAS TO GO BACK TO AO. 8. WE ALSO NOTE THAT LD. CIT WHILE SETTING ASIDE TH E ORDER OF THE AO WHICH WAS PASSED U/S. 147/143(3) OF THE ACT, THE LD . CIT GAVE CERTAIN GUIDELINES TO FOLLOW FOR CONDUCTING DEEP INVESTIGAT ION. WE ALSO NOTE THAT SIMILARLY PLACED ASSESSEES HAD CHALLENGED THE EXERC ISE OF REVISIONAL JURISDICTION U/S. 263 OF THE ACT BEFORE THIS TRIBUN AL IN THOSE CASES ONE OF IT OF SUBHA LAKSHMI VANIJYA PVT. LTD. VS. CIT IN ITA N O. 1104/KOL/2014 DATED 30.07.2015, WHEREIN THE TRIBUNAL WAS PLEASED TO UPHOLD THE ORDER PASSED BY THE LD. CIT PASSED U/S. 263 OF THE ACT, W HICH WE LEARN TO HAVE BEEN CONFIRMED BY THE HONBLE JURISDICTIONAL HIGH C OURT AND THE SLP PREFERRED AGAINST THE DECISION OF THE HONBLE JURIS DICTIONAL HIGH COURT HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT. TH EREFORE, SIMILAR ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD. WE NOTE THAT THE AO WHILE GIVING EFFECT TO THE CITS 263 OR DER HAS NOTED THAT THE ASSESSEE COMPANY HAS IN FACT FURNISHED THE DOCUMENT S SOUGHT BY HIM TO HIS NOTICE U/S. 142(1) OF THE ACT. HOWEVER, THE AO TOOK THE ADVERSE VIEW AGAINST THE ASSESSEE ON THE PLEA THAT THE DIRECTORS OF THE ASSESSEE COMPANY AND SHARE SUBSCRIBING COMPANIES HAD NOT AP PEARED BEFORE HIM ON 26.03.2014 AND T AFTER TAKING NOTE THAT NONE APP EARED ON 26.03.2014 CONCLUDED ON THE SAME DAY 26.03.2014 THAT ENTIRE A MOUNT OF SHARE APPLICATION MONEY RECEIVED ALONG WITH PREMIUM AMOUN TING TO RS.8,06,00,000/- WHICH HAS REMAINED UNEXPLAINED A ND ADDED TO THE INCOME OF THE ASSESSEE. WE ALSO NOTE THAT THE LD. C IT AFTER LOOKING INTO THE PERNICIOUS PRACTICE OF CONVERTING BLACK MONEY I NTO WHITE MONEY HAS GIVEN THE GUIDELINES TO AO AS TO HOW THE INVESTIGAT ION SHOULD BE CONDUCTED TO FIND OUT THE SOURCE OF SOURCE. SINCE SIMILAR ORDER OF THE LD. CIT PASSED U/S. 263 OF THE ACT HAS BEEN UPHELD BY T HE TRIBUNAL AS WELL AS BY THE HONBLE CALCUTTA HIGH COURT AS WELL AS THE S LP HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT, SIMILAR ORD ER OF THE LD. CIT HAS TO BE GIVEN EFFECT TO AS DIRECTED BY THE LD. CIT. WE TAKE NOTE THAT THE LD. CIT WITH HIS EXPERIENCE AND WISDOM HAS GIVEN CERTAI N GUIDELINES IN THE BACKDROP OF BLACK MONEY MENACE SHOULD HAVE BEEN PRO PERLY ENQUIRED INTO AS DIRECTED BY HIM. THE AO OUGHT TO HAVE FOLL OWED THE INVESTIGATING GUIDELINES AND METHOD AS DIRECTED BY HIM TO UNEARTH THE FACTS TO DETERMINE WHETHER THE IDENTITY, GENUINENESS AND CRE DITWORTHINESS OF THE ITA NO.761/KOL/2016 M/S RED HOT MERCANTILE PVT. LTD . A.Y.2008-09 6 SHARE SUBSCRIBERS. WE NOTE THAT THE HONBLE SUPREM E COURT IN THREE JUDGES BENCH IN THE CASE OF TIN BOX, (SUPRA), HAS H ELD THAT SINCE THERE WAS LACK OF OPPORTUNITY TO THE ASSESSEE AT THE ASSESSME NT STAGE ITSELF, THE ASSESSMENT NEEDS TO BE DONE AFRESH AND THEREBY REVE RSED THE HONBLE HIGH COURT, TRIBUNAL AND CIT(A)S ORDERS AND REMAN DED THE MATTER BACK TO AO FOR FRESH ASSESSMENT. SO, SINCE THERE WAS LA CK OF OPPORTUNITY AS AFORESTATED IT HAS TO GO BACK TO AO. WE ALSO NOTE T HAT THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. JANSAMPARK ADVER TISING & MARKETING PVT. LTD. IN ITA NO. 525/2014 DATED 11.03.2015 WHER EIN AFTER NOTICING INADEQUATE ENQUIRY BY AUTHORITIES BELOW HAVE HELD AS UNDER: 41. WE ARE INCLINED TO AGREE WITH THE CIT(APPEALS) , AND CONSEQUENTLY WITH ITAT, TO THE EXTENT OF THEIR CONC LUSION THAT THE ASSESSEE HEREIN HAD COME UP WITH SOME PROOF OF IDEN TITY OF SOME OF THE ENTRIES IN QUESTION. BUT, FROM THIS INFERENC E, OR FORM THE FACT THAT THE TRANSACTIONS WERE THROUGH BANKING CHA NNELS, IT DOES NOT NECESSARILY FOLLOWING THAT SATISFACTION AS TO T HE CREDITWORTHINESS OF THE PARTIES OR THE GENUINENESS OF THE TRANSACTIONS IN QUESTION WOULD ALSO HAVE BEEN ESTAB LISHED. 42. THE AO HERE MAY HAVE FAILED TO DISCHARGE HIS OB LIGATION TO CONDUCT A PROPER INQUIRY TO TAKE THE MATTER TO LOGI CAL CONCLUSION. BUT CIT(APPEALS), HAVING NOTICED WANT OF PROPER INQ UIRY, COULD NOT HAVE CLOSED THE CHAPTER SIMPLY BY ALLOWING THE APPEAL AND DELETING THE ADDITIONS MADE. IT WAS ALSO THE OBLIGA TION OF THE FIRST APPELLATE AUTHORITY, AS INDEED OF ITAT, TO HAVE ENS URED THAT EFFECTIVE INQUIRY WAS CARRIED OUT, PARTICULARLY IN THE FACT OF THE ALLEGATIONS OF THE REVENUE THAT THE ACCOUNT STATEME NTS REVEAL UNIFORM PATTERN OF CASH DEPOSITS OF EQUAL AMOUNTS I N THE RESPECTIVE ACCOUNTS PRECEDING THE TRANSACTIONS IN Q UESTION. THIS NECESSITATED A DETAILED SCRUTINY OF THE MATERIAL SU BMITTED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION148 ISSUED BY THE AO, AS ALSO THE MATERIAL SUBMITTED AT THE STAGE OF APPEALS, IF DEEMED PROPER BY WAY OF MAKING OR CAUSING TO BE MAD E A 'FURTHER INQUIRY IN EXERCISE OF THE POWER UNDER SECTION 250 (4). HIS APPROACH NOT HAVING BEEN ADOPTED, THE IMPUGNED ORDE R OF ITAT, AND CONSEQUENTLY THAT OF CIT(APPEALS), CANNOT BE AP PROVED OR UPHELD.' ITA NO.761/KOL/2016 M/S RED HOT MERCANTILE PVT. LTD . A.Y.2008-09 7 IN VIEW OF THE AFORESAID ORDER AND IN THE LIGHT OF THE HONBLE SUPREME COURTS DECISION IN TIN BOX COMPANY (SUPRA) AND TAK ING INTO CONSIDERATION THE FACT THE ORDER OF THE LD. CIT PAS SED U/S. 263 OF THE ACT IN SIMILAR CASES BEING UPHELD UP TO THE LEVEL OF APEX COURT, AND TAKING NOTE OF HONBLE DELHI HIGH COURTS ORDER IN JANSAMPARK ADVE RTISING & MARKETING PVT. LTD. (SUPRA), WE SET ASIDE THE ORDER OF THE LD . CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF AO FOR DE NOVO ASSESSMEN T AND TO DECIDE THE MATTER IN ACCORDANCE TO LAW AFTER GIVING OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. 7. WE, THEREFORE, CONSIDER IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON TH E ISSUE IN DISPUTE AND RESTORE THE MATTER TO THE FILE OF THE A.O. TO DECIDE THE SA ME AFRESH AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD AND AFTER TAKING INTO CONSIDERATION THE ENTIRE EVIDENCE ALREADY AVAILABLE ON RECORD AS WELL AS OTHER DOCUMENTARY EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE IN SUPPORT OF ITS CASE ON THE ISSUE. THE KOLKATA BENCH OF THE ITAT HAS PASSED SIMILAR OR DER IN MANY CASES ON THE SAME ISSUE OF ADDITIONS MADE U/S 68 OF THE SHARE CA PITAL, HAS SET ASIDE THE ASSESSMENT TO THE FILE OF THE AO FOR FRESH ADJUDICA TION IN THE LINES STATED ABOVE AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF B EING HEARD. 7. KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CI RCUMSTANCES OF THE CASE AND ALSO THE ORDERS OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN SIMILAR MATTERS, WE SET ASIDE THIS APPEAL TO THE FILE OF THE AO FOR FRESH A DJUDICATION AND IN ACCORDANCE WITH LAW, AFTER GIVING THE ASSESSEE ADEQUATE OPPO RTUNITY OF BEING HEARD. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. 7. WITH UTTER SURPRISE WE FIND THE ORDER OF THE LD . AO WHICH SUFFERS FROM SERIOUS IRREGULARITIES HAS BEEN CONFIRMED BY THE LD. CIT(A) IN A CYCLOSTYLED MANNER, IN HOT HASTE AND WITHOUT APPLYING HIS MIND. WE, CANNOT APP RECIATE THE STAND TAKEN BY THE AUTHORITIES BELOW IN MAKING THE ADDITION WITHOUT TA KING RECOURSE OF THE MANDATE PRESCRIBED BY THE LD. CIT ON 30.03.2013 IN THE MATT ER U/S 263 AS MENTIONED ABOVE. FURTHER THAT THE LD. CIT(A) HAS CONFIRMED THE SAME EXPARTE WHICH CLEARLY SHOWS THAT JUST FOR THE SAKE OF MAKING ADDITION THE SAME HAS BEEN DONE BY HIM WHICH IS HEREBY DEPRECATED BY US. ITA NO.761/KOL/2016 M/S RED HOT MERCANTILE PVT. LTD . A.Y.2008-09 8 8. WE, THEREFORE KEEPING IN MIND THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE RESPECTFULLY FOLLOWING THE JUDGEMENT OF THIS COORDI NATE BENCH CONSIDER IT FAIR AND PROPER IN THE INTEREST OF JUSTICE TO SET ASIDE THE ORDERS PASSED BY THE AUTHORITIES BELOW AND RESTORE THE ISSUE TO THE FILE OF THE AO TO DECI DE THE SAME AFRESH POSITIVELY UPON MAKING COMPLIANCE OF THE GUIDELINES/MANDATE AS MENT IONED ABOVE IN ACCORDANCE WITH LAW. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE COURT ON 14.09.2018. SD/- SD/- [J.SUDHAKAR REDDY] [ MADHUMITA ROY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14.09.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1. M/S RED HOT MERCANTILE PVT. LTD., C/O RAJESH MOH AN & ASSOCIATES, UNIT NO.18, 5 TH FLOOR, BAGATI HOUSE, 34, GANESH CHANDRA AVENUE, KOL KATA-700013. 2. I.T.O., WARD-4 (2), KOLKATA. 3. C.I.T.(A)-2, KOLKATA. 4. C.I.T-2, KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY ITAT KOLKATA BENCHES KOLKATA ITA NO.761/KOL/2016 M/S RED HOT MERCANTILE PVT. LTD . A.Y.2008-09 9