TIWARY BECHAR AND COMPANY PVT. LTD.,KOLKATA vs. I.T.O., WARD-11(1), KOLKATA, KOLKATA

The only issue raised by the assessee in the various ground of appeal is against the confirmation of addition of Rs. 2,66,93,697/- by the Ld. CIT(A) as made by the AO on account of share capital and share premium being unexplained cash credit u/s 68 of the Act.

Facts in brief are that the assessee filed return of income on 29.09.2012 declaring total income at Nil. Thereafter the case was selected for scrutiny and statutory notices were duly issued and served on the assessee. The AO issued questionnaire to the assessee along with notice u/s 142(1) of the Act and the assesse accordingly filed necessary documents before the AO. The AO observed on the basis of balance sheet for the year end on 31.03.2013filed by the assessee that it had received share premium of Rs. 4,55,35,150/-. Finally, the AO added a sum of Rs. 2,66,93,697/- on account of share premium received as unexplained cash credit to the income of the assessee. As a matter of fact the assessee has not issued any share capital during the year leave aside the receipt of share premium and thus AO has wrongly gathered the impression of issue of share at a premium from some other documents which were not belonging to the assessee.

The issue was challenged before the Ld. CIT(A) however the Ld. CIT(A) also dismissed the appeal in liminie by holding that the assessee has failed to offer any explanation for delay in filing the appeal of 57 months which is approximately 1750 days .

We have perused the facts on record and heard the rival contentions. We find that the Ld. CIT(A) has proceeded on the wrong assumption and appreciation of facts that the appeal of the assessee late by 57 months. We observe from the facts on records that the assessee had filed the appeal well within time i.e. due date on 18.09.2015 as against the due date of 16.10.2015 in physical mode and there is no delay of any kind whatsoever in filing the appeal before the first appellate authority. We not that the ld CIT(A) has taken the limitation from date the appeal was e-filed which in any case was effective from 01.03.2016 in terms of Rule 45 of Income Tax Rules, 1962 but the fact remains that the assesse has filed the appeal in physical mode on 18.09.2015. On the merit, we note that the assesse has not issued any share capital during the year and this fact was also placed before the ld CIT(A) by means of written submissions dated 24.11.2022 but the appeal was dismissed in liminie on account of appeal being barred by limitation. Similarly, the AO on wrong assumption of facts has 3 Assessment Year: 2012-13 Tiwary Bechar and Company Pvt. Ltd. Tiwary Bechar and Company Pvt. Ltd. come to conclusion that the assessee has issued share at a high premium during the e to conclusion that the assessee has issued share at a high premium during the e to conclusion that the assessee has issued share at a high premium during the year whereas there has been no such issue there has been no such issue of share at a premium during the year of share at a premium during the year. We also note that the fact is apparent from the also note that the fact is apparent from the balance sheet of the assessee balance sheet of the assessee which is extracted in the appellate order in the appellate order and is also reproduced as under fo4r ready reference fo4r ready reference:

In the result, the appeal of the assessee is allowed.