M/s. Govindam Projects Pvt. Ltd., Kolkata V. DCIT, Circle - 9(1), Kolkata, Kolkata

MA 128/KOL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0421 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 13-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit
• Section: 68; 263

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 (MISC. APPLICATION) M.ANO.128/KOL/2018 (ARISING OUT ITA NO.679/KOL/2017) / ASSESSMENT YEAR:2012-13 M/S GOVINDAM PROJECTS PVT LTD.159, RAVINDRA SARANI, 11 TH FLOOR, KOLKATA-700 007 [ PAN NO. AACCM 0646H ] / V/S . DCIT, CICLE-9(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 (ORIGINAL APPELLANT) (ORIGINAL R ESPONDENT) (APPLICANT) .. (RESPONDENT) ITA NO.679/KOL/2017 ASSESSMENT YEAR: 2012-13 M/S GOVINDAM PROJECTS PVT LTD.159, RAVINDRA SARANI, 11 TH FLOOR, KOLKATA-700 007 [ PAN NO. AACCM 0646H ] / V/S . DCIT, CICLE-9(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 (APPLICANT) .. (RESPONDENT) / BY APPLICANT SHRI SOUMITRA CHOUDHURY, ADVOCATE & SHRI JOYDEEP CHAKRABORTY, AR !' / BY RESPONDENT SHRI KAPIL MONDAL, JCIT-SR-DR / DATE OF HEARING 07-09-2018 / DATE OF PRONOUNCEMENT 19-09-2018 / ORDER PER S.S.GODARA, JUDICIAL MEMBER:- MA NO128/KOL/201& & ITA NO.679/KOL/2017 A.Y. 20 12-13 M/S GOVIDAM PROJECT PVT. LTD. VS. DCIT, CIR-9(1) , KOL PA GE 2 THIS ASSESSEES MISCELLANEOUS APPLICATION FILED U/S . 254(2) OF THE INCOME TAX ACT, 1961, IN SHORT THE ACT SEEKS TO R E-CALL OUR ORDER DATED 21.06.2018 DISMISSING THE MAIN CASE FOR NON-PROSECU TION. 2. LEARNED COUNSEL PLEADS DURING THE COURSE OF HEAR ING THAT ASSESSEE HAD VERY WELL ENGAGED ITS COUNSEL FOR MAIN APPEALS HEARING ON 21.06.2018 INSTITUTED ON 07.04.2017. IT IS THER EAFTER SUBMITTED THAT THE SAID COUNSEL COULD NOT APPEAR BECAUSE OF SOME W RONG DATE NOTED IN THE DAILY REGISTER. THE ASSESSEE ALSO HIGHLIGHTS TH E FACT THAT ITS DEFAULT IN NOT PUTTING IN APPEARANCE ON 21.06.2018 WAS FIRST I NSTANCE OF HEARING AND THEREFORE, THE SAME IS NEITHER INTENTIONALLY NO R DELIBERATE. LEARNED DEPARTMENTAL REPRESENTATIVE IS VERY FAIR IN NOT DIS PUTING ALL THESE AVERMENTS IN THE INSTANT MISCELLANEOUS APPLICATION. WE THUS RESTORE ASSESSEES MAIN APPEAL ITA NO.679/KOL/2017 AT ITS O RIGINAL NUMBER. ASSESSEES MISCELLANEOUS APPLICATION NO. 128/KOL/20 18 IS ACCEPTED. 3. BOTH THE LEARNED REPRESENTATIVE(S) THEREAFTER AG REE THAT INSTANT MAIN APPEAL ITA 679/KOL/2017 CAN ALSO BE DISPOSED O F SINCE THE CIT(A) HAS PASSED HIS LOWER APPELLATE ORDER EX PARTE ORDER IN AFFIRMING THE ASSESSING OFFICERS ACTION TREATING ITS SHARE APPLI CATION / PREMIUM AMOUNT OF 1.50 CRORES TO BE UNEXPLAINED CASH CREDITS U/S. 68 OF THE ACT. WE THUS TAKE UP MAIN APPEAL ITSELF FOR HEARING. 4. THERE IS NO DISPUTE ABOUT THE BASIC FACT THAT A SSESSEE HAD RECEIVED THE SHARE APPLICATION / PREMIUM MONEY OF 1,50,00,000/- IN THE IMPUGNED ASSESSMENT YEAR BY ISSUING 10/- SHARE EACH AT A PREMIUM OF 40/- TO EIGHT PARTIES NAMELY, M/S ANANT HOLDING PVT . LTD, PAXTON COMMODITIES PVT. LTD., AROTO TRADE INDIA PVT. TRIMU DRA CREDIT LTD., PRONOMA FISCAL SERVICES, SPOTLITE DEALER PVT. LTD., PINGLE COMMODTRADE MA NO128/KOL/201& & ITA NO.679/KOL/2017 A.Y. 20 12-13 M/S GOVIDAM PROJECT PVT. LTD. VS. DCIT, CIR-9(1) , KOL PA GE 3 PVT. LTD. & ULTRA MARKETING PVT. LTD. INVOLVING VAR IOUS AMOUNTS RANGING BETWEEN 5 LAC TO 25 LAC. IT EMERGES FROM THE CASE FILE THAT THE SAI D PARTIES HAD PLACED ON RECORD THEIR DOCUMENTS IN THE NATURE OF BANK STATEMENTS, INCOME TAX RETURNS, BALANCE-SHEETS, RET URNED INCOME, REVENUE FROM OPERATIONS ETC., IN RESPONSE TO SEC. 1 33(6) NOTICES. THE ASSESSING OFFICER OBSERVED IN ASSESSMENT ORDER DATE D 16.03.2015 THAT THE SAID MATERIAL INDICATED MEAGRE SOURCES OF INCOM E OF THE CONCERNED ENTITIES. HE THUS TREATED THE SAID INVESTORS AS MER E SHAM COMPANIES WITHOUT HAVING OPERATIONS AS WELL AS ANY SUBSTANTIV E SOURCE OF INCOME. HE WAS OF THE OPINION THAT THE ASSESSEE HAD ISSUED ITS SHARES AT THE ABOVE HIGH RATE OF PREMIUM BY ADOPTING THE LAYERING OF TRANSACTIONS RAISING SERIOUS DOUBTS ON IDENTITY, GENUINENESS AND CREDITWORTHINESS WERE RAISED THEREUPON IN LIGHT OF CASE LAW SUMATI DAYAL VS. CIT (1995) 80 TAXMAN 89/214 ITR 801 (SC) AND CIT VS. DURGA PRASAD MORE (1971) 82 ITR 540 (SC) TO HOLD THE SHARE PREMIUM IN QUESTI ON OF 150,00,000 AS UNEXPLAINED CASH CREDITS AS AFFIRMED IN THE LOWER A PPELLATE PROCEEDINGS VIDE CIT(A)S ORDER UNDER CHALLENGE. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. BOTH PARTIES REITERATE THEIR RESPECTIVE STANDS AGAI NST AND IN SUPPORT OF THE IMPUGNED ADDITION. IT EMERGES FROM THE CASE FIL E THAT ASSESSEE HAD PRIMA FACIE DISCHARGED ITS BURDEN IN PRODUCING ALL DETAILS OF ITS SHARE INVESTORS BEFORE THE ASSESSING OFFICER WHO DID NOT TAKE RECOURSE TO SUFFICIENT INDEPENDENT ENQUIRIES FOR VERIFICATION T HEREOF DURING THE COURSE OF ASSESSMENT. THIS TRIBUNALS DECISION IN SHUBH LAXMI VANIJYA PVT. LTD. VS. CIT 155 ITD 171 (KOL) AS UPHELD UPTO THE HON'BLE APEX COURT HAS AFFIRMED THE CITS SEC. 263 DIRECTIONS TO ASSESSING AUTHORITY FOR CONDUCTING SUCH INDEPENDENT VERIFICATION OF THE INV ESTORS ENTITIES. WE DRAW STRONG SUPPORT THEREFROM TO RESOLVE THE INSTAN T LIS BACK TO THE MA NO128/KOL/201& & ITA NO.679/KOL/2017 A.Y. 20 12-13 M/S GOVIDAM PROJECT PVT. LTD. VS. DCIT, CIR-9(1) , KOL PA GE 4 ASSESSING OFFICER FOR FINALIZING AFRESH PROCEEDINGS AS PER LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO ASSESS EE IN LIGHT THEREOF. 6. THIS ASSESSEES MISC. APPLICATION NO.128/KOL/201 8 IS ACCEPTED AND ITS MAIN APPEAL NO.679/KOL/2017 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19/09/2018 SD/- SD/- ( () ( () (M.BALAGANESH) (S.S. G ODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP *- 19/09 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S GOVINDAM PROJECTS PVT. LTD.,159 RAVI NDRA SARANI, 11 TH FLOOR, KOLKATA-007 2. !' /RESPONDENT-DCIT, CIRCLE-9(1), AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 ASANSOL-713304 3. 5 6 / CONCERNED CIT 4. 6- / CIT (A) 5. !5, 5, KOLKATA / DR, ITAT, KOLKATA 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO 5,