M/S. CSS PROJECTS PVT. LTD.,,KOLKATA vs. I..T.O., WARD - 6(1), KOLKATA, KOLKATA

आयकर अपील�य अ�धकरण, कोलकाता पीठ ‘बी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH KOLKATA �ी संजय गग�, �या�यक सद�य एवं �ी मनीष बोरड, लेखा सद�य के सम� Before Shri Sanjay Garg, Judicial Member and Dr. Manish Borad, Accountant Member I.T.A No.20/Kol/2023 Assessment year: 2015-16 M/s CSS Projects Pvt. Ltd......…...................................................……Appellant Shantiniketan Building, 8, Camac Street, Room No.1011, Kolkata-700017. [PAN: AACCC6067A] vs. ITO, Ward-6(1), Kolkata..............................……........……...…..…..Respondent Appearances by: Shri Miraj D. Shah, AR, appeared on behalf of the appellant. Shri P. P. Barman, Addl. CIT, DR, appeared on behalf of the Respondent. Date of concluding the hearing : September 26, 2023 Date of pronouncing the order : December 14 , 2023 आदेश / ORDER संजय गग�, �या�यक सद�य �वारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 22.11.2019 of the Commissioner of Income Tax (Appeals)-2, Kolkata (hereinafter referred to as the ‘CIT(A)’) passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. The registry has pointed out that the appeal is time barred. A perusal of the record shows that the impugned order of the CIT(A) is dated 22.11.2019, whereas, the appeal has been filed in the month of January 2023. A copy of the affidavit of Shri Sanjay Kr. Jain, director of the assessee company has been placed on file, wherein, it has been pleaded that none of the notices of hearing issued by ld. CIT(A), Kolkata

I.T.A No.20/Kol/2023 Assessment year: 2015-16 M/s CSS Projects Pvt. Ltd were ever served on the assessee due to incorrect address available in the income tax records. It has been further affirmed in the said affidavit that even the impugned order of the CIT(A) was also not served upon the assessee and the assessee had to obtain a certified copy of the order from the office of the CIT(A) and then the assessee was able to file the appeal before this Bench. The aforesaid contentions have not been rebutted by the department by placing any evidence on the file that the copy of the impugned order of the CIT(A) was served upon the assessee and if served, on which date? In view of this, the unrebutted submissions of the director of the assessee by way of an affidavit, the delay in filing the present appeal is hereby condoned. 3. Now, coming to the merits of the appeal, the assessee is aggrieved by the action of the lower authorities for making impugned additions of Rs.1,88,62,500/- observing that the assessee has received the share premium of the said amount, which was considered to exceed fair market value of the shares and the addition was made by the Assessing Officer u/s 56(2)(viib) of the Act. 4. We have heard the rival contentions of the parties. We find that the Assessing Officer had made the impugned addition by way of a cryptic order observing as under:

“The assessee company received consideration of Rs.1,88,62,500/- as share premium for issue of shares and the aggregate consideration received for issue of shares exceeds the face value of such shares. In absence of compliance to the notice u/s 142(1) from the assessee the entire amount of share premium for Rs.1,88,62,500/- is considered to exceed the fair market value of such shares and added u/s 56(2)(viib) of the IT Act 1961 to the total income of the assessee for the year under consideration. Penalty u/s 271(1)(c) is initiated separately for concealment of income or furnishing inaccurate particulars of income.”

I.T.A No.20/Kol/2023 Assessment year: 2015-16 M/s CSS Projects Pvt. Ltd A perusal of the above order of the Assessing Officer would reveal that the Assessing Officer has not discussed as to how much shares were sold by the assessee and to whom these were sold, what was the face value of the shares and what was the market value of the shares and even has not discussed as to by what amount, the share value including share premium was more than the market value to justify the invocation of provisions of section 56(2)(viib) of the Act. The ld. CIT(A) has also confirmed the additions made by the Assessing Officer in a mechanical manner without bringing any fact on the file justifying the said additions. 5. The ld. counsel has brought our attention to the audited balance sheet of the assessee as on 31.03.2015 to show that the share capital as on 31.03.2014 vis-a-vis 31.03.2015 was same and there was no increase in share capital and share premium. Since, the assessee did not receive any share capital or premium during the year, therefore, there was no reason for the Assessing Officer to make the impugned additions. Even the impugned order of the Assessing Officer is vague and cryptic. In view of this, we do not find justification on the part of the lower authorities in making the impugned addition and the same is ordered to be deleted. 6. In the result, the appeal of the assessee stands allowed. Kolkata, the 14th December, 2023. Sd/- Sd/- [डॉ�टर मनीष बोरड /Dr. Manish Borad] [संजय गग� /Sanjay Garg] लेखा सद�य /Accountant Member �या�यक सद�य /Judicial Member Dated:14.12.2023. RS

I.T.A No.20/Kol/2023 Assessment year: 2015-16 M/s CSS Projects Pvt. Ltd Copy of the order forwarded to: 1 M/s CSS Projects Pvt. Ltd 2. ITO, Ward-6(1), Kolkata 3. CIT(A)- 4. CIT- , 5. CIT(DR),

//True copy// By order Assistant Registrar, Kolkata Benches