MUKHTAR AHMAD & SONS DEVELOPERS PVT. LTD.,KOLKATA vs. I.T.O,WARD-1(4), KOLKATA

order : June 21, 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 23.07.2019 of the Commissioner of Income Tax-17, Kolkata [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. The assessee in this appeal has taken the following grounds of appeal: “1. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-17, Kolkata failed to appreciate that none of the conditions precedent existed for and/or were fulfilled by the Ld. Income Tax Officer, Ward 1(4), Kolkata for his specious action of assuming jurisdiction u/s. 68 of the Income Tax Act, 1961 in respect of the share capital including share premium received by the appellant in the instant case and the alleged addition in Assessment Year: 2012-13 Mukhtar Ahmad & Sons Developers Pvt. Ltd. the amount of Rs. 80,00,000/- upheld under such pretext is therefore ab initio void, ultra vires and ex-facie null in law.

3. FOR THAT the Ld. Commissioner of Income Tax (Appeals)-17, Kolkata unlawfully sustained the purported addition in the sum of Rs.80,00,000/- on account of share capital along with premium received made by the Ld. Income Tax Officer, Ward 1(4), Kolkata within the province of s. 68 of the Income Tax Act, 1961 by misreading the facts and circumstances of the instant case and the adverse conclusion reached on that behalf in violation of the statutory prescription is completely unfounded, unjustified and untenable in law.”

3. A perusal of the grounds of appeal would reveal that the assessee in this appeal has agitated the action of the lower authorities in making confirmation of addition of Rs.80,00,000/- u/s 68 of the Act on account of share capital and share premium received by the assessee which has been treated by the lower authorities as investment from unexplained sources.

4. At the outset, the ld. counsel for the assessee has invited our attention to the impugned assessment order dated 20.03.2015 to submit that the assessee during the year had received the aforesaid share capital/share premium from only one individual namely Shri Chandra Kumar Sah. That on being asked to explain the sources of the investment, the said Chandra Kumar Sah duly furnished a letter to the Assessing Officer, a copy of which has been placed at page 55 of paper- book, wherein, it has been stated by the said Chandra Kumar Sah that he has made investment of Rs.80,00,000/- in assessee company during the financial year 2011-12. The source of the said amount was Assessment Year: 2012-13 Mukhtar Ahmad & Sons Developers Pvt. Ltd. explained as from sale value received from house property. The amount was transferred through bank account. The details of the property sold have also been mentioned and the total sale consideration of Rs.5,35 crores has been stated to have been received by the said Chandra Kumar Sah vide cheque no.020022 drawn at HDFC, Rathyatra, Varanasi. The PAN no. and address and copy of income-tax return have also been duly furnished. The ld. counsel further brought to our attention to page 56 of the paper-book which is a copy of the ITR acknowledgment for F.Y 2011-12 to show that the said Chandra Kumar Sah has paid advance tax of Rs.90,00,000/-. Furthe the computation of the income of the said Chandra Kumar Sah has also been placed on file, wherein, after claiming indexed cost of acquisition and deduction u/s 54 of the Act, the total tax on capital gains including education cess etc. has been calculated at Rs.90.72 lakhs. The ld. counsel has submitted that the Assessing Officer without examining the submissions of the assessee passed the assessment order in a casual manner. That the Assessing Officer had insisted for personal presence of the directors of the assessee company and the share subscribers. The Assessing Officer thereafter held that the identity, creditworthiness of the share subscriber was not proved and treated the aforesaid investment of Rs.80,00,000/- as unexplained investment. The ld. counsel has further invited our attention to the impugned order of the CIT(A) to show that the same is an ex parte order and that the ld. CIT(A) has just confirmed the order of the Assessing Officer without any discussion on the material facts of the case.