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

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 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.

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.

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.