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Income Tax Appellate Tribunal, KOLKATA BENCH “B” KOLKATA
Before: Shri S.S.Godara & Dr. A.L. Saini
Shri Manish Tiwari, FCA अपीलाथ� क� ओर से/By Appellant Shri Sanjay Mukherjee, Addl. CIT-DR ��यथ� क� ओर से/By Respondent 09-09-2019 सुनवाई क� तार�ख/Date of Hearing घोषणा क� तार�ख/Date of Pronouncement 22-11-2019 आदेश /O R D E R PER S.S.Godara, Judicial Member:- This assessee’s appeal for assessment year 2008-09 arises against the order of Commissioner of Income Tax (Appeals)-17, Kolkata’s order dated 11.03.2017 passed in case No.106/CIT(A)- 17/Kol/15-16, involving proceedings u/s 143(3)/263/143(3)/147 of the Income Tax Act, 1961; in short ‘the Act’. Heard both the parties. Case file perused.
Abhiruchi Marketing Pvt. Ltd. Vs. ITO Wd-5(3) Kol. Page 2 2. The assessee’s sole substantive grievance pleaded in the instant appeal seeks to reverse both the lower authorities’ action treating its share capital / premium the amount of ₹4,28,70,108/- as unexplained cash credits liable to be added u/s. 68 of the Act.
It transpires at the outset that the CIT(A) has passed his lower appellate order ex parte without even indicating as to whether assessee had been actually served the relevant notice(s) of hearing or not. There is further no decision on merits as well as contemplated u/s 250(6) of the Act requiring framing of points of determination followed by adequate adjudication.
We further notice that the factual apposition is no different in the relevant assessment order dated 24.03.2014 as well same stood passed as per the CIT’s sec. 263 revision direction dated 28.03.2013 annulling earlier assessment / re-assessment dated 05.05.2010 not adding the share capital / premium in issue. The CIT’s order forming part of assessment in this second round makes it clear that he had directed the Assessing Officer to “examine the genuineness and source of share capital not on test check basis but in respect of each and every shareholder by conducting independent enquiry not through the assessee”. Learned departmental representative fails to dispute that the Assessing Officer’s second round assessment has added the impugned share capital / premium without carrying out any such independent factual verification. The fact also remain that the assessee filed all necessary evidences in order to prove identity, genuineness and creditworthiness of the investor party(ies). We hold in these peculiar factual backdrop that larger of justice would be met in case the Assessing Officer re-examine the entire of issue afresh within three Abhiruchi Marketing Pvt. Ltd. Vs. ITO Wd-5(3) Kol. Page 3 effective opportunities of hearing as per law subject to payment of cost amounting to ₹25,000/- since it had not put in appearance throughout. The assessee shall appear before the Assessing Officer on or before 30.04.2020 alongwith a copy of this order.