SANJEEV TRADECOMM PVT. LTD. ,KOLKATA vs. I.T.O.,WARD-11(2), KOLKATA

The assessee is a company and during the previous year it raised share capital amounting to Rs. 2,19,77,110/-, including share premium. The assessing officer passed a best judgment assessment order u/s 144/147 of the Act, dt. 17/03/2016, making an addition u/s 68 of the Act, of this amount for the reason that there was complete non- compliance on part of the assessee company and due to non-appearance of the directors of the share applicant companies and the directors of the assessee company, in response to notices u/s 131 of the Act, and that the genuineness of the credit could not be proved. Aggrieved the assessee carried the matter in appeal before the ld. First Appellate Authority. The ld. CIT(A) passed an ex-parte order dismissing the appeal of the assessee.

Further aggrieved the assessee is in appeal before us. None appeared on behalf of the assessee. There is no application for adjournment either. Under these circumstances, we are of the opinion that this case can be disposed off ex-parte, qua the assessee after hearing the ld. D/R.

We have heard rival contentions. On careful consideration of the facts and We have heard rival contentions. On careful consideration of the facts and We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows: below as well as case law cited, we hold as follows:- 4.1. In this case, the Assessing Officer Assessing Officer without giving proper opportunity without giving proper opportunity to the assessee company on the ground that the share applicants/holders and directors of the on the ground that the share applicants/holders and directors of the on the ground that the share applicants/holders and directors of the assessee company, have not appeared before him or were produced before him, made the assessee company, have not appeared before him or were produced before him, made the assessee company, have not appeared before him or were produced before him, made the addition u/s 68 of the Act. This is a case This is a case of violation of principles of natural justice. The ld. of violation of principles of natural justice. The ld. CIT(A) has not disposed off the case on merits. He dismissed the case of non CIT(A) has not disposed off the case on merits. He dismissed the case of non CIT(A) has not disposed off the case on merits. He dismissed the case of non-appearance. This is not permissible in law. This is not permissible in law. 4.2. The ld. D/R, though not leaving his ground ultimately submitted that the m The ld. D/R, though not leaving his ground ultimately submitted that the m The ld. D/R, though not leaving his ground ultimately submitted that the matter may be set aside to the file of the Assessing Officer for fresh adjudication, in accordance may be set aside to the file of the Assessing Officer for fresh adjudication, in accordance may be set aside to the file of the Assessing Officer for fresh adjudication, in accordance with law.

In view of the above discussion, we are In view of the above discussion, we are of the opinion that this case has to be of the opinion that this case has to be restored to the file of the Assessing Officer as no adequate oppo restored to the file of the Assessing Officer as no adequate opportunity was given to the rtunity was given to the assessee. We find that this bench of the ITAT in all such cases has been restoring the assessee. We find that this bench of the ITAT in all such cases has been restoring the assessee. We find that this bench of the ITAT in all such cases has been restoring the matter to the file of the Assessing Officer for fresh adjudication. matter to the file of the Assessing Officer for fresh adjudication. 5.1. In the case of Sriram Tie Up Pvt. Ltd Sriram Tie Up Pvt. Ltd vs. ITO in I.T.A. No. 1104/Kol/2016, Assessment Year: 2009-10 order dt. March 21, 2018, 10 order dt. March 21, 2018, at para 6 and 7 held as follows: at para 6 and 7 held as follows: “6. In the case of M/s. Sukanya Merchandise Pvt. Ltd. vs ITO (ITA In the case of M/s. Sukanya Merchandise Pvt. Ltd. vs ITO (ITA In the case of M/s. Sukanya Merchandise Pvt. Ltd. vs ITO (ITA 291/Kol/2016 dated 15.12.2017) cited by the learned counsel 291/Kol/2016 dated 15.12.2017) cited by the learned counsel for the assessee, a for the assessee, a similar view has been taken by the Co similar view has been taken by the Co-ordinate Bench of this Tribunal and the ordinate Bench of this Tribunal and the similar issue relating to the addition made under section 68 on account of share similar issue relating to the addition made under section 68 on account of share similar issue relating to the addition made under section 68 on account of share capital contribution by treating the same as unexplained cash credits is rest capital contribution by treating the same as unexplained cash credits is rest capital contribution by treating the same as unexplained cash credits is restored back by the Tribunal to the file of the A.O. in almost similar situation after back by the Tribunal to the file of the A.O. in almost similar situation after back by the Tribunal to the file of the A.O. in almost similar situation after recording its observations / findings as under: recording its observations / findings as under: We note that the AO pursuant to the order of Ld. CIT had taken note of the We note that the AO pursuant to the order of Ld. CIT had taken note of the We note that the AO pursuant to the order of Ld. CIT had taken note of the directions of the Ld. CIT and issued notice u/s. directions of the Ld. CIT and issued notice u/s. 142(1) dated 16.08.2013 and has 142(1) dated 16.08.2013 and has acknowledged that the assessee had furnished the copy of final account, I. T. acknowledged that the assessee had furnished the copy of final account, I. T. acknowledged that the assessee had furnished the copy of final account, I. T. Acknowledgement, bank statement for the relevant period evidencing the receipt of Acknowledgement, bank statement for the relevant period evidencing the receipt of Acknowledgement, bank statement for the relevant period evidencing the receipt of share application money from the share applicants. Thereafter, share application money from the share applicants. Thereafter, the AO makes the AO makes certain inferences based on the list of shareholders and taking note of the bank certain inferences based on the list of shareholders and taking note of the bank certain inferences based on the list of shareholders and taking note of the bank statement furnished by the assessee. We note that after the initial notice dated statement furnished by the assessee. We note that after the initial notice dated statement furnished by the assessee. We note that after the initial notice dated 16.08.2013, thereafter the AO had issued the notice on 26.02.2014 which has been 16.08.2013, thereafter the AO had issued the notice on 26.02.2014 which has been 16.08.2013, thereafter the AO had issued the notice on 26.02.2014 which has been reproduced at page 3 of the reassessment order, wherein AO required the directors reproduced at page 3 of the reassessment order, wherein AO required the directors reproduced at page 3 of the reassessment order, wherein AO required the directors of the assessee company to be present before him on 06.03.2014. However, of the assessee company to be present before him on 06.03.2014. However, of the assessee company to be present before him on 06.03.2014. However, Assessment Year: 2008-09 Sanjeev Tradecomm (P) Ltd. according to the Ld. AR, the assessee received the notice only on 07.03.2014 and according to the Ld. AR, the assessee received the notice only on 07.03.2014 and according to the Ld. AR, the assessee received the notice only on 07.03.2014 and thereafter, the assessee requested the AO to provide another opportunity of hearing sessee requested the AO to provide another opportunity of hearing sessee requested the AO to provide another opportunity of hearing vide its letter dated 20.03.2014. Thereafter, the AO fixed the date of hearing on vide its letter dated 20.03.2014. Thereafter, the AO fixed the date of hearing on vide its letter dated 20.03.2014. Thereafter, the AO fixed the date of hearing on 12.03.2014 vide notice dated 10.03.2014. So, according to the assessee company 12.03.2014 vide notice dated 10.03.2014. So, according to the assessee company 12.03.2014 vide notice dated 10.03.2014. So, according to the assessee company since the directors were no since the directors were not in station till 23.03.2014, the Ld. AR had requested for t in station till 23.03.2014, the Ld. AR had requested for adjournment till that time. Though the AO has stated that he has issued summons adjournment till that time. Though the AO has stated that he has issued summons adjournment till that time. Though the AO has stated that he has issued summons on 24.03.2014 to the assessee company to produce the directors of the company on 24.03.2014 to the assessee company to produce the directors of the company on 24.03.2014 to the assessee company to produce the directors of the company before him on 26.03.2014, the assessee before him on 26.03.2014, the assessee company contended that it has not received company contended that it has not received the said summon and, therefore, could not make the personal appearance. The AO the said summon and, therefore, could not make the personal appearance. The AO the said summon and, therefore, could not make the personal appearance. The AO has drawn adverse conclusion basically because of non has drawn adverse conclusion basically because of non-appearance of the directors appearance of the directors of the assessee company and that of the shareholder of the assessee company and that of the shareholder companies. We note that companies. We note that initially the AO started the enquiry on 16.08.2013 which was complied by the initially the AO started the enquiry on 16.08.2013 which was complied by the initially the AO started the enquiry on 16.08.2013 which was complied by the assessee by submitting documents which has been acknowledged by the AO. assessee by submitting documents which has been acknowledged by the AO. assessee by submitting documents which has been acknowledged by the AO. Thereafter, the enquiry was started only at the fag end of February 2014 and th Thereafter, the enquiry was started only at the fag end of February 2014 and th Thereafter, the enquiry was started only at the fag end of February 2014 and the assessee company had informed the AO that their directors were out of station till assessee company had informed the AO that their directors were out of station till assessee company had informed the AO that their directors were out of station till 23.03.2014. In the light of the aforesaid facts, we are of the opinion that the 23.03.2014. In the light of the aforesaid facts, we are of the opinion that the 23.03.2014. In the light of the aforesaid facts, we are of the opinion that the assessee did not get fair opportunity to present the evidences before the AO so, there assessee did not get fair opportunity to present the evidences before the AO so, there assessee did not get fair opportunity to present the evidences before the AO so, there was a lack of opportunity as aforesaid, therefore, it has to go back to AO. a lack of opportunity as aforesaid, therefore, it has to go back to AO. a lack of opportunity as aforesaid, therefore, it has to go back to AO.

8. We also note that Ld. Cit while setting aside the order of the AO which was We also note that Ld. Cit while setting aside the order of the AO which was We also note that Ld. Cit while setting aside the order of the AO which was passed u/s. 147/143(3) of the Act, the Ld. CIT gave certain guidelines to follow for passed u/s. 147/143(3) of the Act, the Ld. CIT gave certain guidelines to follow for passed u/s. 147/143(3) of the Act, the Ld. CIT gave certain guidelines to follow for conducting deep investigation. We also note that similarly placed assessees had vestigation. We also note that similarly placed assessees had vestigation. We also note that similarly placed assessees had challenged the exercise of revisional jurisdiction u/s. 263 of the Act before this challenged the exercise of revisional jurisdiction u/s. 263 of the Act before this challenged the exercise of revisional jurisdiction u/s. 263 of the Act before this Tribunal in those cases one of it of Subha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in ITA Tribunal in those cases one of it of Subha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in ITA Tribunal in those cases one of it of Subha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in dated 30 No. 1104/Kol/2014 dated 30.07.2015, wherein the Tribunal was pleased to uphold .07.2015, wherein the Tribunal was pleased to uphold the order passed by the Ld. CIT passed u/s. 263 of the Act, which we learn to have the order passed by the Ld. CIT passed u/s. 263 of the Act, which we learn to have the order passed by the Ld. CIT passed u/s. 263 of the Act, which we learn to have been confirmed by the Hon’ble jurisdictional High Court and the SLP preferred been confirmed by the Hon’ble jurisdictional High Court and the SLP preferred been confirmed by the Hon’ble jurisdictional High Court and the SLP preferred against the decision of the Hon’ble jurisd against the decision of the Hon’ble jurisdictional High Court has been dismissed by ictional High Court has been dismissed by the Hon’ble Supreme Court. Therefore, similar order of the Ld. CIT passed u/s. 263 the Hon’ble Supreme Court. Therefore, similar order of the Ld. CIT passed u/s. 263 the Hon’ble Supreme Court. Therefore, similar order of the Ld. CIT passed u/s. 263 of the Act has been upheld. We note that the AO while giving effect to the CIT’s 263 of the Act has been upheld. We note that the AO while giving effect to the CIT’s 263 of the Act has been upheld. We note that the AO while giving effect to the CIT’s 263 order has noted that the assessee company has order has noted that the assessee company has in fact furnished the documents in fact furnished the documents sought by him to his notice u/s. 142(1) of the Act. However, the AO took the adverse sought by him to his notice u/s. 142(1) of the Act. However, the AO took the adverse sought by him to his notice u/s. 142(1) of the Act. However, the AO took the adverse view against the assessee on the plea that the directors of the assessee company view against the assessee on the plea that the directors of the assessee company view against the assessee on the plea that the directors of the assessee company and share subscribing companies had not appeared before and share subscribing companies had not appeared before him on 26.03.2014 and t him on 26.03.2014 and t after taking note that none appeared on 26.03.2014 concluded on the same day after taking note that none appeared on 26.03.2014 concluded on the same day after taking note that none appeared on 26.03.2014 concluded on the same day 26.03.2014 that entire amount of share application money received along with 26.03.2014 that entire amount of share application money received along with 26.03.2014 that entire amount of share application money received along with premium amounting to Rs.8,06,00,000/ premium amounting to Rs.8,06,00,000/- which has remained unexplained and which has remained unexplained and added to the income of the assessee. We also note that the Ld. CIT after looking into dded to the income of the assessee. We also note that the Ld. CIT after looking into dded to the income of the assessee. We also note that the Ld. CIT after looking into the pernicious practice of converting black money into white money has given the the pernicious practice of converting black money into white money has given the the pernicious practice of converting black money into white money has given the guidelines to AO as to how the investigation should be conducted to find out the guidelines to AO as to how the investigation should be conducted to find out the guidelines to AO as to how the investigation should be conducted to find out the source of source. Since similar order of the Ld. CIT passed u/s. 263 of the Act has source. Since similar order of the Ld. CIT passed u/s. 263 of the Act has source. Since similar order of the Ld. CIT passed u/s. 263 of the Act has been upheld by the Tribunal as well as by the Hon’ble Calcutta High Court as well as been upheld by the Tribunal as well as by the Hon’ble Calcutta High Court as well as been upheld by the Tribunal as well as by the Hon’ble Calcutta High Court as well as the SLP has been dismissed by the Hon’ble Supreme Court, similar order of the Ld. the SLP has been dismissed by the Hon’ble Supreme Court, similar order of the Ld. the SLP has been dismissed by the Hon’ble Supreme Court, similar order of the Ld. CIT has to be given effect to as directed by the Ld. CIT. We take note that the Ld. given effect to as directed by the Ld. CIT. We take note that the Ld. given effect to as directed by the Ld. CIT. We take note that the Ld. CIT with his experience and wisdom has given certain guidelines in the backdrop of CIT with his experience and wisdom has given certain guidelines in the backdrop of CIT with his experience and wisdom has given certain guidelines in the backdrop of black money menace should have been properly enquired into as directed by him. black money menace should have been properly enquired into as directed by him. black money menace should have been properly enquired into as directed by him. The AO ought to have followed the investigating guidelines and method as directed followed the investigating guidelines and method as directed followed the investigating guidelines and method as directed by him to unearth the facts to determine whether the identity, genuineness and by him to unearth the facts to determine whether the identity, genuineness and by him to unearth the facts to determine whether the identity, genuineness and creditworthiness of the share subscribers. We note that the Hon’ble Supreme Court creditworthiness of the share subscribers. We note that the Hon’ble Supreme Court creditworthiness of the share subscribers. We note that the Hon’ble Supreme Court in three judges bench in the case in three judges bench in the case of Tin Box, (supra), has held that since there was of Tin Box, (supra), has held that since there was lack of opportunity to the assessee at the assessment stage itself, the assessment lack of opportunity to the assessee at the assessment stage itself, the assessment lack of opportunity to the assessee at the assessment stage itself, the assessment needs to be done afresh and thereby reversed the Hon’ble High Court, Tribunal and needs to be done afresh and thereby reversed the Hon’ble High Court, Tribunal and needs to be done afresh and thereby reversed the Hon’ble High Court, Tribunal and Assessment Year: 2008-09 Sanjeev Tradecomm (P) Ltd. CIT(A)’s orders and remanded the matte CIT(A)’s orders and remanded the matter back to AO for fresh assessment. So, r back to AO for fresh assessment. So, since there was lack of opportunity as aforestated it has to go back to AO. We also since there was lack of opportunity as aforestated it has to go back to AO. We also since there was lack of opportunity as aforestated it has to go back to AO. We also note that the Hon’ble Delhi High Court in the case of CIT Vs. Jansampark note that the Hon’ble Delhi High Court in the case of CIT Vs. Jansampark note that the Hon’ble Delhi High Court in the case of CIT Vs. Jansampark Advertising & Marketing Pvt. Ltd. in dat Advertising & Marketing Pvt. Ltd. in ITA No. 525/2014 dated 11.03.2015 wherein ed 11.03.2015 wherein after noticing inadequate enquiry by authorities below have held as under: after noticing inadequate enquiry by authorities below have held as under: after noticing inadequate enquiry by authorities below have held as under: “41. We are inclined to agree with the CIT(Appeals), and consequently with ITAT, to “41. We are inclined to agree with the CIT(Appeals), and consequently with ITAT, to “41. We are inclined to agree with the CIT(Appeals), and consequently with ITAT, to the extent of their conclusion that the assessee herein had come up with the extent of their conclusion that the assessee herein had come up with the extent of their conclusion that the assessee herein had come up with some proof of identity of some of the entries in question. But, from this inference, or form the of identity of some of the entries in question. But, from this inference, or form the of identity of some of the entries in question. But, from this inference, or form the fact that the transactions were through banking channels, it does not necessarily fact that the transactions were through banking channels, it does not necessarily fact that the transactions were through banking channels, it does not necessarily following that satisfaction as to the creditworthiness of the parties or the following that satisfaction as to the creditworthiness of the parties or the following that satisfaction as to the creditworthiness of the parties or the genuineness of the transactions in question would also have been established. genuineness of the transactions in question would also have been established. genuineness of the transactions in question would also have been established.

The AO here may have failed to discharge his obligation to conduct a proper 42. The AO here may have failed to discharge his obligation to conduct a proper 42. The AO here may have failed to discharge his obligation to conduct a proper inquiry to take the matter to logical conclusion. But CIT(Appeals), having noticed inquiry to take the matter to logical conclusion. But CIT(Appeals), having noticed inquiry to take the matter to logical conclusion. But CIT(Appeals), having noticed want of proper inquiry, could not have closed the chapter simply by allowing the inquiry, could not have closed the chapter simply by allowing the inquiry, could not have closed the chapter simply by allowing the appeal and deleting the additions made. It was also the obligation of the first appeal and deleting the additions made. It was also the obligation of the first appeal and deleting the additions made. It was also the obligation of the first appellate authority, as indeed of ITAT, to have ensured that effective inquiry was appellate authority, as indeed of ITAT, to have ensured that effective inquiry was appellate authority, as indeed of ITAT, to have ensured that effective inquiry was carried out, particularly carried out, particularly in the fact of the allegations of the Revenue that the in the fact of the allegations of the Revenue that the account statements reveal uniform pattern of cash deposits of equal amounts in the account statements reveal uniform pattern of cash deposits of equal amounts in the account statements reveal uniform pattern of cash deposits of equal amounts in the respective accounts preceding the transactions in question. This necessitated a respective accounts preceding the transactions in question. This necessitated a respective accounts preceding the transactions in question. This necessitated a detailed scrutiny of the material subm detailed scrutiny of the material submitted by the assessee in response to the notice itted by the assessee in response to the notice under Section148 issued by the AO, as also the material submitted at the stage of under Section148 issued by the AO, as also the material submitted at the stage of under Section148 issued by the AO, as also the material submitted at the stage of appeals, if deemed proper by way of making or causing to be made a 'further appeals, if deemed proper by way of making or causing to be made a 'further appeals, if deemed proper by way of making or causing to be made a 'further inquiry’ in exercise of the power under Section 25 inquiry’ in exercise of the power under Section 250(4). His approach not having 0(4). His approach not having been adopted, the impugned order of ITAT, and consequently that of CIT(Appeals), been adopted, the impugned order of ITAT, and consequently that of CIT(Appeals), been adopted, the impugned order of ITAT, and consequently that of CIT(Appeals), cannot be approved or upheld." cannot be approved or upheld." In view of the aforesaid order and in the light of the Hon’ble Supreme Court’s In view of the aforesaid order and in the light of the Hon’ble Supreme Court’s In view of the aforesaid order and in the light of the Hon’ble Supreme Court’s decision in Tin Box Company (supra) decision in Tin Box Company (supra) and taking into consideration the fact the and taking into consideration the fact the order of the Ld. CIT passed u/s. 263 of the Act in similar cases being upheld up to order of the Ld. CIT passed u/s. 263 of the Act in similar cases being upheld up to order of the Ld. CIT passed u/s. 263 of the Act in similar cases being upheld up to the level of Apex Court, and taking note of Hon’ble Delhi High Court’s order in the level of Apex Court, and taking note of Hon’ble Delhi High Court’s order in the level of Apex Court, and taking note of Hon’ble Delhi High Court’s order in Jansampark Advertising & Marketing Pvt. Ltd. (su Jansampark Advertising & Marketing Pvt. Ltd. (supra), we set aside the order of the pra), we set aside the order of the Ld. CIT(A) and remand the matter back to the file of AO for de novo assessment and Ld. CIT(A) and remand the matter back to the file of AO for de novo assessment and Ld. CIT(A) and remand the matter back to the file of AO for de novo assessment and to decide the matter in accordance to law after giving opportunity of being heard to decide the matter in accordance to law after giving opportunity of being heard to decide the matter in accordance to law after giving opportunity of being heard to the assessee.

The Kolkata Bench of the ITAT has The Kolkata Bench of the ITAT has passed similar order in many cases on the same passed similar order in many cases on the same issue of additions made u/s 68 of the share capital and ade u/s 68 of the share capital and has set aside the assessment to the has set aside the assessment to the file of the AO for fresh adjudication file of the AO for fresh adjudication. The Assessing Officer may examine the evidence . The Assessing Officer may examine the evidence already on record as well as ot already on record as well as other documentary evidences which the assessee may file her documentary evidences which the assessee may file before him and adjudicate the issue in accordance with law. before him and adjudicate the issue in accordance with law.

Keeping in view the totality of the facts and circumstances of the case and also the Keeping in view the totality of the facts and circumstances of the case and also the Keeping in view the totality of the facts and circumstances of the case and also the orders of the Co-ordinate Bench of the Tribunal in similar matters, we set aside this ordinate Bench of the Tribunal in similar matters, we set aside this ordinate Bench of the Tribunal in similar matters, we set aside this issue to the file of the AO for fr to the file of the AO for fresh adjudication in accordance with law, esh adjudication in accordance with law, after giving the assessee adequate opportunity of being heard. assessee adequate opportunity of being heard.

In the result, appeal of the assessee In the result, appeal of the assessee is allowed for statistical purposes for statistical purposes.