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Facts
The assessee appealed against an Ld. CIT(A) order confirming an addition of Rs. 1.08 Crore to share capital and premium. The assessee contended that the CIT(A) order was based on a remand report and failed to consider its submissions, while notices issued to share applicants under Section 133(6) were returned undelivered. The appeal itself had a delay of 1873 days, which was condoned.
Held
The Tribunal noted that the Ld. CIT(A) did not record the assessee's submissions and relied on an inadequate remand report. Consequently, the matter was restored to the Assessing Officer for re-adjudication, granting the assessee a fresh opportunity to produce evidence and witnesses to substantiate the share application money, clarifying the AO's role in examining such witnesses.
Key Issues
Whether the Ld. CIT(A) properly considered the assessee's case regarding share capital addition, and the procedural due process for verifying share application money by the Assessing Officer.
Sections Cited
250, 133(6), 131
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “A” BENCH, KOLKATA
Before: SHRI GEORGE MATHAN & SHRI RAKESH MISHRA
Present for: Appellant by : None Respondent by : Shri Pradip Kr. Biswas, Addl. CIT- Sr. DR Date of Hearing : 26.08.2025 Date of Pronouncement : 27.08.2025 O R D E R Per Bench : This is an appeal filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-15, Kolkata [hereinafter referred to as “the Ld. CIT(A)”] in Appeal No.107/CIT(A)-15/16-17/Wd.11(3)/R&T/Kol. dated 29.11.2019 passed u/s. 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for A.Y 2012-13.
None represented on behalf of the assessee and Shri Pradip Kr. Biswas, Sr. DR represented on behalf of the revenue.
The appeal has been filed by the assessee with a delay of 1873 days. The assessee has filed an affidavit for condonation of delay. The affidavit and reasons are plausible and reasons are valid. Consequently, the delay in filing the appeal is hereby condoned and we proceed to dispose of the appeal on merits.
It is noticed that the assessee has not appeared even though notices have been issued by RPAD.
It was submitted by the ld. DR that the issue in the appeal is regarding the addition of Rs.1,08,00,000/- to the share capital and premium received by the assessee. A perusal of the grounds raised before the Tribunal show that in Ground No.3, the assessee has challenged the order of the ld. CIT(A) in passing his order on the basis of remand report from the Assessing Officer and decided case by the Hon’ble Appellate Authority. He further challenged the order of the ld. CIT(A) on the ground that the authorized representatives of the assessee were present but the no discussion is made in the whole order about the submission, details and documents submitted during the appellate proceedings. It was further submitted by the ld. DR that the order of the ld. CIT(A) is liable to be upheld.
We, after considering the submission and also perusing the orders of the authorities below, note that admittedly on perusal of the ld. CIT(A)’s order shows that in the first page of his order, he himself referred to the authorized representative of the assessee and in his order, the ld. CIT(A) has only extracted grounds of appeal, the assertion of the Assessing Officer and the observation and decisions. There is no recording of the submission of the assessee. It is also noticed from the order of the ld. CIT(A) that in the remand order which has been extracted by the ld. CIT(A) has mentioned that the assessee was given a chance of hearing on 12.07.2019 but the assessee did not comply. It is also noticed that the notice u/s 133(6) of the Act was issued to the various shareholders and such notices were returned undelivered with a postal remark ‘not known’ and in one case, the director has requested for extension of time after that there was no compliance. In the circumstances, in the interest of justice, we are of the view that the issues in this appeal must be restored to the file of the Assessing Officer so as to give the assessee adequate opportunity to substantiate its case of receipt of share application and premium money and we do so. The Assessing Officer issued notice u/s 133(6) and 131 of the Act to the various share applicants but the Assessing Officer has failed to appreciate that the share applicants are the witnesses of the assessee who has received share application money. It is for the assessee to produce such directors of the concerned authorities in respect of companies from where they have received share application money. Such persons who are produced are the witnesses of the assessee and it is for the Assessing Officer to cross- examine such witnesses. The Assessing Officer when he issues notices u/s 133(6) or 131 is making such persons the witnesses of the Assessing Officer. The Assessing Officer is not expected to call for any witness but to examine the witnesses produced by the assessee. Should the Assessing Officer have any adverse evidence against the assessee, it is the duty of the Assessing Officer to provide a copy of the same to the assessee. Similarly when the assessee is claiming that he has received share application money then it is for the assessee to prove with evidences and it is necessary to show and prove the share application money received. With this observation, the issues in this appeal are restored to the file of the Assessing Officer for re-adjudication and to grant the assessee an opportunity to produce directors of the share applicant companies to prove the share application money received by the assessee.
In the result, the appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the open court 27th August, 2025.