M/s Suvidha Barter pvt. Ltd., Kolkata V. ITO, WD-5(4), KOLKATA, Kolkata

ITA 969/KOL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1801 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 09-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA CIT LD
• Assessee Lawyers: S M SURANA LD
• Keywords: Unexplained cash credit
• Section: 131; 68

Judgement Text

1 IT A NO . 969/KOL/2016 MS. SUVIDHA BARTER PVT. LTD. IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOLKATA BEFORE: SHRI J. SUDHAKAR REDDY , ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A NO. 9 69 /KOL/201 6 A.Y: 2008 - 09 M/S. SUVIDHA BARTER VS. INCOME - TAX OFFICER PVT. LIMITED. WARD 5(4), KOLKATA PAN: AA LCS 6196D [APPELLANT] [RESPONDENT] FOR THE APPELLANT : SHRI S . M. SURANA, ADVOCATE, LD.AR FOR THE RESP ONDENT : SHRI S. DASGUPTA, ADDL.CIT, LD.SR.DR DATE OF HEARING : 13 - 06 - 2018 DATE OF PRONOUNCEMENT : 05 - 0 9 - 201 8 ORDER SHRI S.S. VISWANETHRA RAVI TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX ( APPEALS), 2 , KOLKATA DT. 22 - 12 - 2015 FOR THE A.Y 2008 - 09 . 2. THE ONLY ISSUE IS TO BE DECIDED AS TO WHETHER THE CIT - A JUSTIFIED IN CONFIRMING THE ADDITION/DISALLOWANCE MADE U/S. 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN THE FACTS AND CIRCUM STANCES OF THE CASE. 3. AFTER HEARING BOTH THE PARTIES, IT IS NO T ED THAT THE CIT UNDER 263 PROCEEDINGS DIRECTED THE AO TO CONDUCT THE ASSESSMENT PROCEEDINGS AS DETAILED THEREIN OF PARA 2 OF THE ASSESSMENT ORDER AND TO MAKE FRESH ASSESSMENT. BUT, IN RESPON SE TO NOTICE ISSUED U/S. 131 NO DIRECTORS / THE SHAREHOLDERS OF THE ASSESSE COMPANY COULD NOT BE PRODUCED BEFORE THE AO. BEFORE US THE LD. AR SUBMITS THAT THERE WAS NO OPPORTUNITY BEFORE THE AO TO PRODUCE THE DETAILS OF ALL THE DIRECTORS / THE SHAREHOLD ERS O F THE ASSESSEE COMPANY BEFORE THE AO. THEREFORE, TAKING INTO CONSIDERATIONS THE SUBMISSIONS OF THE LD.AR & 2 IT A NO . 969/KOL/2016 MS. SUVIDHA BARTER PVT. LTD. LD. DR, FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE DEEM IT FIT AND PROPER TO REMAND THE MATTER TO THE FILE OF THE AO TO C ONDUCT INQUIRIES AS SET OUT HEREUNDER: - I) EXAMINE THE GENUINENESS AND SOURCE OF SHARE CAPITAL, NOT ON A TEST CHECK BASIS, BUT M RESPECT OF EACH AND EVERY S HAREHOLDER BY CONDUCTING INDEPENDENT ENQUIRY NOT THROUGH THE ASSESSEE. THE BANK ACCOUNT OF THE ENTI RE PERIOD SHOULD BE EXAMINED IN THE COURSE OF VERIFICATION TO FIND OUT THE MONEY TRAIL OF THE SHARE CAPITAL. II) FURTHER THE A. 0. SHOULD EXAMINE THE DIRECTIONS AS WELL AS EXAMINE THE CIRCUMSTANCES WHICH NECESSITATED THE CHANGE IN DIRECTORSHIP IF APPLICAB LE. 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.' 4. IN VIEW OF THE ABOVE, GROUNDS RAISED BY THE ASESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4 . IN VIEW OF ABOVE, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUES TO THE FILE OF AO AND TO PASS A FRESH ORDER AS PER LAW, AFTER GIVING THE ASSESSE ADEQUATE OPPORTUNITY OF HEARING TO ASSESSEE. THE ASSESSE IS AT LIBERTY TO FILE NECESSARY EVIDENCES/EXPLANATION IN SUPPORT OF ITS CLAIM/CONTENTION. GROUNDS RAISED BY THE ASSESSE ARE ALLOWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, THE APPEAL OF ASSESSE IS ALLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 05 - 0 9 - 2018 SD/ - SD/ - J. SUDHAKAR REDDY S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 05 - 0 9 - 20 18 3 IT A NO . 969/KOL/2016 MS. SUVIDHA BARTER PVT. LTD. PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT /ASSESSEE: M/S. SUVIDHA BARTER PVT. LTD C/O MARBLE CENTRE, 27 SHAKESPEAREA SARANI, KOLKATA - 17. 2 RESPONDENT /REVENUE : INCOME TAX OFFICER, WARD 5(4), AAYKAR BHAWAN, P - 7, CHOWRINGHEE SQUARE ,KOLKATA - 700069. 3. THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, S ENIOR PRIVATE SECRETARY HEAD OF OFFICE, ITAT KOLKATA