M/S STARPOINT DEVELOPERS PVT. LTD.,KOLKATA vs. I.T.O.,WARD-14(4), KOLKATA

ORDER

Per Shri A. T. Varkey, JM:

2. At the outset, the Ld. AR of the assessee Shri Bisweswar Ghosh, Advocate drew our attention to the fact that the Ld. CIT(A) has passed an ex-parte order. Though the Ld. AR vehemently pleaded that the matter may be restored back to the AO and has given undertaking that they will produce directors of the share applicant companies as well as that of assessee company before the AO. However, we note that before the Ld. CIT(A) there was no compliance despite the Ld. CIT(A) giving eight opportunities by fixing the appeal of hearing. Only once the Ld. A.R of the assessee appeared before the Ld. CIT(A) [on or before 13.01.2017] for seeking adjournment and thereafter the Ld. A.R. did not appear before the Ld. CIT(A) on 07.03.2017 or thereafter. We further note that the appeal was fixed before the Ld. CIT(A) on eight occasions from 07.11.2016 to 08.08.2019 i.e. approx three (3) years and the assessee did not care to appear before the Ld. CIT(A) which action of assessee cannot be countenenced. And the averment of the assessee that it got only one opportunity before the AO is belied by the fact recorded by M/s Star Point Developer Pvt. Ltd., AY 2012-13 the AO that pursuant to the notice issued by him, the assessee’s A.R. Shri K. V. Jaiswal appeared from time to time and has filed details and documents to substantiate the issue of share capital and premium to the tune of Rs. 11.08 crores. However after cross- verification of the facts borne out of the documents submitted by the assessee, the AO has recorded his dissatisfaction of the nature and source of the credit entry to the tune of Rs. 11.08 crores and made addition u/s 68 of the Act. Since it is an ex-parte order of the Ld CIT(A), we are inclined to set aside the order of the Ld. CIT(A) and restore the matter back to the file of the Ld. CIT(A) with a direction that the Ld. CIT(A) to adjudicate the grounds raised by the assessee after calling for remand report from the AO. In the remand proceedings before the AO, the assessee is directed to produce the directors of the share subscriber companies as well as the assessee company and to participate in the enquiry/investigation to prove the identity, creditworthiness and genuineness of the share subscribers to the tune of Rs. 11.08 cr., as undertaken in the affidavit. And thereafter the AO to carry out the investigation/verification to examine the nature and source of the credit entry to the tune of Rs. 11.08 cr. and then to submit the remand report before the Ld. CIT(A) and thereafter the Ld. CIT(A) to decide the appeal of the assessee in accordance to law and as per the decision of the Hon’ble Supreme Court and jurisdictional High Court on the subject.

Order is pronounced in the open court on 30th September, 2021.

Sd/- Sd/- (P. M. Jagtap) (A. T. Varkey) Vice President Judicial Member Dated: 30th September, 2021 JD, Sr. PS

M/s Star Point Developer Pvt. Ltd., AY 2012-13 Copy of the order forwarded to: