Csquare Retail India Pvt. Ltd., Kolkata V. ITO, Ward-7(1), Kolkata, Kolkata

ITA 930/KOL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0528 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 03-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Assessee Lawyers: S JHJHARIA
• Keywords: Unexplained cash credit
• Section: 131; 68; 144

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. 930 / KOL / 20 17 ASSESSMENT YEAR :2012-13 CSQUARE RETAIL INDIA PVT. LTD., C/O SALARPURIA JAJODIA & CO. 7,, C.R. AVENUE, KOLKATA-72 [ PAN NO.AAECC 0195 P ] V/S . INCOME TAX OFFICER, WRD-7(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S. JHJHARIA, AR & SHRI SUJOY SEN, AR /BY RESPONDENT MD. USMAN, CIT-DR /DATE OF HEARING 28-08-2018 /DATE OF PRONOUNCEMENT 12-09-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-16, KOLKATAS ORDER DATED 20.02.2017 PASSED IN CASE NO.816/CIT(A)-16/KOL/2015-16/W-7(1), IN PROCEEDINGS U/S 144 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES ONLY SUBSTANTIVE GROUND CHALLENGE S CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION TREATING ITS SHARE CA PITAL / PREMIUM OF 9,48,00,000/- (CORRECT FIGURE 1,51,00,000) TREATED AS UNEXPLAINED CASH CREDITS DURING THE COURSE OF ASSESSMENT AS UPHELD I N LOWER APPELLATE ITA NO.930/KOL/2017 A.Y. 2 012-13 CSQUARE RETAIL INDIA PVT. LTD. VS. IT O WD-7(1) KOL. PAGE 2 PROCEEDINGS. RELEVANT FACTS ARE IN A NARROW COMPASS . THIS ASSESSEE IS A COMPANY ENGAGED IN INVESTMENTS BUSINESS. THERE IS N O DISPUTE ABOUT THE ASSESSEE HAVING ISSUED SHARES OF 10/- PER AT A PREMIUM OF 312/- VALUE EACH. THE ASSESSING OFFICER ISSUED SECTION 131 NOTI CE TO VERIFY IDENTITY, SHAREHOLDERS AS WELL AS GENUINENESS AND CREDITWORTH INESS OF RELEVANT TRANSACTIONS. IT EMERGES FROM ASSESSMENT ORDER DATE D 28.03.2015 THAT THE SAID NOTICE SOUGHT COPY OF IDENTITY PROOF, ANNUAL R ETURN FOR ASSESSMENT YEAR 2012-13 WITH RELEVANT FORMS 2 & 5 ETC., ROC SERVICE , AUDITED ACCOUNTS, BANK STATEMENTS, AND INCOME-TAX ACKNOWLEDGEMENTS. THE A SSESSING OFFICER RECORDS IN HIS ASSESSMENT ORDER THAT ALL THIS PROCE SS FAILED TO EVOKE ANY RESPONSE. HE THUS TOOK RECOURSE TO BEST JUDGEMENT A SSESSMENT. A DETAILED DISCUSSION FOLLOWED REGARDING DUBIOUS MECHANISM ADO PTED BY SUCH KIND OF ASSESSEES IN ISSUING SHARE PREMIUM AT EXORBITANT RA TES THROUGH A CIRCUITOUS ROUTE. THE ASSESSING OFFICER THEREFORE TREATED THE ASSESSEES SHARE CAPITAL / PREMIUM OF 9.484 CRORES(CORRECT OF FIGURE 1.5 CRORES) TO BE UN EXPLAINED CASH CREDITS U/S. 68 OF THE ACT AS AFFIRMED IN LOWER APP ELLATE PROCEEDINGS. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATIONS TO R IVAL CONTENTIONS. BOTH PARTIES REITERATE THEIR RESPECTIVE STANDS AGAINST A ND IN SUPPORT OF THE IMPUGNED ADDITION. IT TRANSPIRES FROM THE CASE FILE THAT BOTH THE LOWER AUTHORITIES HELD THE ASSESSEE NOT TO HAVE RESPONDED DESPITE VARIOUS HEARINGS OF NOTICES SO AS TO PROVE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE SHARE CAPITAL / PREMIUM. RELEVANT RECORDS SPEAK OTH ERWISE. PAPER BOOK COMPRISING 140 PAGES SUGGESTS THAT THE ASSESSEE HA D FILED ALL THE RELEVANT DETAILS OF INVESTORS WITH NECESSARY DOCUMENTS OF IN COME-TAX RETURNS, BANK STATEMENT, PAN CARD, SHARES ALLOTTED, PREMIUM PER S HAREHOLDER, AUDITED BALANCE-SHEET, PROFIT AND LOSS ACCOUNT, CONFIRMATIO NS OF THE PARTIES. THERE IS NO DISPUTE THAT NEITHER OF THE LOWER AUTHORITIES HA S CONSIDERED THE SAME. THE REVENUE FAILS TO DISPUTE ANY MATERIAL TO THIS EFFEC T DURING THE ASSESSMENT OR LOWER APPELLATE PROCEEDINGS. WE THEREFORE DEEM IT A PPROPRIATE THAT THE ASSESSING OFFICER NEEDS TO EXAMINE THE ENTIRE ISSUE AFRESH AS PER LAW AFTER ITA NO.930/KOL/2017 A.Y. 2 012-13 CSQUARE RETAIL INDIA PVT. LTD. VS. IT O WD-7(1) KOL. PAGE 3 AFFORDING ADEQUATE OPPORTUNITIES OF HEARING TO THE ASSESSEE. HE SHALL ALSO UNDERTAKE INDEPENDENT ENQUIRIES AS WELL TO VERIFY T HE SHARE APPLICATION PREMIUM AS WELL INDEPENDENTLY AND NOT THROUGH THE T AXPAYER. 4. THIS ASSESSEES APPEAL IS ACCEPTED FOR STATISTIC AL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 12/ 09/2018 SD/- SD/- ( %) (' %) (M.BALAGANESH) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 12 / 09 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-CSQUARE RETAIL INDIA PVT. LTD., C/O SALA RPURIA JAJODIA & CO. 7, C.R. AVENUE, KOLK ATA-72 2. /RESPONDENT-ITO WARD-7(1), AAYAKAR BHAWAN,A P-7, CH OWRINGHEE SQ. KOL-69 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA (SENT THROUGH E-MAIL) 5. 7 ''3, 3, / DR, ITAT, KOLKATA (SENT E-MAIL) 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,