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Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA
Before: Shri J. Sudhakar Reddy, Hon’ble & Shri S.S. Godara, Hon’ble]
order : November 8th , 2019 O R D E R Per J. Sudhakar Reddy, AM :- This appeal filed by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals) – 3, Kolkata, (hereinafter the “ld.CIT(A)”), passed u/s. 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 04/04/2018, for the Assessment Year 2012-13, on the following grounds:- “
1. That the learned Commissioner of Income Tax (Appeals)-3, Kolkata erred in confirming the addition of Rs. 2,00,17,060/- made by the Assessing Officer under section 68 of the Income Tax Act, 1961 on irrelevant considerations and arbitrary grounds.
2. That the learned Commissioner of Income Tax (Appeals)-3, Kolkata erred in confirming the addition of Rs. 2,00,17,060/- made by the Assessing Officer under section 68 of the Income Tax Act, 1961 on the basis of judgments which are distinguishable on facts as well as on law.
3. That the learned Commissioner of Income Tax (Appeals)-3, Kolkata erred in confirming the addition of share capital of Rs. 2,00,17,060/- made under section 68 of the Income Tax Act, 1961 in disregard of the binding judgments of Hon'ble Apex Court, Hon'ble High Courts and the Hon'ble ITATs which directly lays down ratio on the merits of the addition of share capital under section 68 of the Income Tax Act, 1961.
4. That the learned Commissioner of Income Tax (Appeals)-3, Kolkata erred in confirming the disallowance of Rs.2,060/- made by the Assessing Officer under section 14A of the Income Tax Act, 1961.
5. That the appellant craves leave to add, alter or delete all or any of the grounds of appeal.”
Assessment Year: 2012-13 M/s. Pratistha Commercial Pvt. Ltd
The assessee has filed an addit The assessee has filed an additional ground of appeal
which reads as ional ground of appeal which reads as follows:- “(i) That the addition of Rs.2,00,15,000 made by the Assessing Officer as That the addition of Rs.2,00,15,000 made by the Assessing Officer as That the addition of Rs.2,00,15,000 made by the Assessing Officer as unexplained cash credit under section 68 of the Income Tax Act, 1961 included the unexplained cash credit under section 68 of the Income Tax Act, 1961 included the unexplained cash credit under section 68 of the Income Tax Act, 1961 included the sum of Rs.55,30,000 received by the Assessee Company sum of Rs.55,30,000 received by the Assessee Company in the previous years in the previous years relevant to the Assessment Years 2009 relevant to the Assessment Years 2009-10 to 2011-12, which did not pertain to the 12, which did not pertain to the year under appeal and thus could not had been added under section 68 of the Act in year under appeal and thus could not had been added under section 68 of the Act in year under appeal and thus could not had been added under section 68 of the Act in the relevant previous year corresponding to Assessment Year 2012 the relevant previous year corresponding to Assessment Year 2012-13.” 2.1. This ground is a legal ground and does not This ground is a legal ground and does not require enquiry into facts, require enquiry into facts, hence we admit the same.
3. The assessee is a company and during the previous year it raised share The assessee is a company and during the previous year it raised share The assessee is a company and during the previous year it raised share capital amounting to Rs. 1,80,00,000 1,80,00,000/-, including share premium. The assessing share premium. The assessing officer made an addition u/s 68 of the Act officer made an addition u/s 68 of the Act, of this amount for the reason that there , of this amount for the reason that there was non-compliance on part of the assessee company compliance on part of the assessee company. There was non non-appearance of share applicants/holders, directors, of the company, in response to notices u/s of share applicants/holders, directors, of the company, in response to notices u/s of share applicants/holders, directors, of the company, in response to notices u/s 131 of the Act. He held that hence, He held that hence, the genuineness of the credit could not be the genuineness of the credit could not be proved. Aggrieved the assess Aggrieved the assessee carried the matter in appeal without success. ee carried the matter in appeal without success.
4. Further aggrieved the ggrieved the assessee is in appeal before us.
5. 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 circumstances of the case, perusal of the papers on record, orders of the 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: authorities below as well as case law cited, we hold as follows:- 5.1. Before us, the ld. Counsel for the Before us, the ld. Counsel for the assessee submits that the assessee has assessee has discharged its primary onus by production of all discharged its primary onus by production of all relevant documentary evidences relevant documentary evidences before the Assessing Officer. before the Assessing Officer. In this case, the ld. Counsel for the assessee, pointed In this case, the ld. Counsel for the assessee, pointed out that the Assessing Officer has not given the as Assessing Officer has not given the assessee proper opportunity as opportunity as the notice u/s 131 of the Act was issued on 23/02/2015 to the Principal Director of notice u/s 131 of the Act was issued on 23/02/2015 to the Principal Director of notice u/s 131 of the Act was issued on 23/02/2015 to the Principal Director of the assessee company and the assessment order was passed on 29/03/2015 the assessee company and the assessment order was passed on 29/03/2015 the assessee company and the assessment order was passed on 29/03/2015 The Assessing Officer had also not examined all the details filed by the had also not examined all the details filed by the assessee. He submitted that the Assessing Officer the Assessing Officer, only on the ground that the share only on the ground that the share applicants/holders and directors of the assessee company, have not appeared applicants/holders and directors of the assessee company, have not appeared applicants/holders and directors of the assessee company, have not appeared before him nor were produced before him, made the addition u/s 68 of the Act. He before him nor were produced before him, made the addition u/s 68 of the Act. He before him nor were produced before him, made the addition u/s 68 of the Act. He prayed that the issue may be remanded back to the file of the Assessing Officer for he issue may be remanded back to the file of the Assessing Officer for he issue may be remanded back to the file of the Assessing Officer for Assessment Year: 2012-13 M/s. Pratistha Commercial Pvt. Ltd fresh adjudication with a direction to provide adequate opportunity to the fresh adjudication with a direction to provide adequate opportunity to the fresh adjudication with a direction to provide adequate opportunity to the assessee. 5.2. The ld. D/R, though not leaving his ground ultimately submitted that the The ld. D/R, though not leaving his ground ultimately submitted that the 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 adjud e to the file of the Assessing Officer for fresh adjud e to the file of the Assessing Officer for fresh adjudication, in accordance with law as there was violation of principles of natural justice. accordance with law as there was violation of principles of natural justice. accordance with law as there was violation of principles of natural justice.
6. After hearing both sides we are of the opinion that this case has to be After hearing both sides we are of the opinion that this case has to be After hearing both sides we are of the opinion that this case has to be restored to the file of the Assessing restored to the file of the Assessing Officer as no adequate opportunity was given Officer as no adequate opportunity was given to the assessee. The details filed by the assessee have not been examined. There The details filed by the assessee have not been examined. There The details filed by the assessee have not been examined. There was no proper service of notice u/s 131 of the Act. Sufficient time was not was no proper service of notice u/s 131 of the Act. Sufficient time was not was no proper service of notice u/s 131 of the Act. Sufficient time was not provided. We find that this bench of the ITAT in all s We find that this bench of the ITAT in all such cases has been restoring uch cases has been restoring the matter to the file of the Assessing Officer for fresh adjudication. the matter to the file of the Assessing Officer for fresh adjudication. 6.1. In the case of Sriram Tie Up Pvt. Ltd. supra at para 6 and 7 held as follows: In the case of Sriram Tie Up Pvt. Ltd. supra at para 6 and 7 held as follows: In the case of Sriram Tie Up Pvt. Ltd. supra at para 6 and 7 held as follows: “6. In the case of M/s. Sukanya Merchandise Pvt. Ltd. vs In the case of M/s. Sukanya Merchandise Pvt. Ltd. vs ITO (ITA ITO (ITA 291/Kol/2016 dated 15.12.2017) cited by the learned counsel for the 291/Kol/2016 dated 15.12.2017) cited by the learned counsel for the 291/Kol/2016 dated 15.12.2017) cited by the learned counsel for the assessee, a similar view has been taken by the Co assessee, a similar view has been taken by the Co-ordinate Bench of this ordinate Bench of this Tribunal and the similar issue relating to the addition made under section Tribunal and the similar issue relating to the addition made under section Tribunal and the similar issue relating to the addition made under section 68 on account of share capital 68 on account of share capital contribution by treating the same as contribution by treating the same as unexplained cash credits is restored back by the Tribunal to the file of the unexplained cash credits is restored back by the Tribunal to the file of the unexplained cash credits is restored back by the Tribunal to the file of the A.O. in almost similar situation after recording its observations / findings as A.O. in almost similar situation after recording its observations / findings as A.O. in almost similar situation after recording its observations / findings as under: We note that the AO pursuant to the order of Ld. CIT h We note that the AO pursuant to the order of Ld. CIT had taken note of the ad taken note of the directions of the Ld. CIT and issued notice u/s. 142(1) dated 16.08.2013 and directions of the Ld. CIT and issued notice u/s. 142(1) dated 16.08.2013 and directions of the Ld. CIT and issued notice u/s. 142(1) dated 16.08.2013 and has acknowledged that the assessee had furnished the copy of final account, has acknowledged that the assessee had furnished the copy of final account, has acknowledged that the assessee had furnished the copy of final account, I. T. Acknowledgement, bank statement for the relevant period evidencing I. T. Acknowledgement, bank statement for the relevant period evidencing I. T. Acknowledgement, bank statement for the relevant period evidencing the receipt of share application money from the share applicants. pt of share application money from the share applicants. pt of share application money from the share applicants. Thereafter, the AO makes certain inferences based on the list of Thereafter, the AO makes certain inferences based on the list of Thereafter, the AO makes certain inferences based on the list of shareholders and taking note of the bank statement furnished by the shareholders and taking note of the bank statement furnished by the shareholders and taking note of the bank statement furnished by the assessee. We note that after the initial notice dated 16.08.2013 assessee. We note that after the initial notice dated 16.08.2013, thereafter , thereafter the AO had issued the notice on 26.02.2014 which has been reproduced at the AO had issued the notice on 26.02.2014 which has been reproduced at 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 of the page 3 of the reassessment order, wherein AO required the directors of the 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, assessee company to be present before him on 06.03.2014. However, assessee company to be present before him on 06.03.2014. However, according to the Ld. AR, the according to the Ld. AR, the assessee received the notice only on 07.03.2014 assessee received the notice only on 07.03.2014 and thereafter, the assessee requested the AO to provide another and thereafter, the assessee requested the AO to provide another and thereafter, the assessee requested the AO to provide another opportunity of hearing vide its letter dated 20.03.2014. Thereafter, the AO opportunity of hearing vide its letter dated 20.03.2014. Thereafter, the AO opportunity of hearing vide its letter dated 20.03.2014. Thereafter, the AO fixed the date of hearing on 12.03.2014 vide notice dated 10.03.20 fixed the date of hearing on 12.03.2014 vide notice dated 10.03.2014. So, 14. So, according to the assessee company since the directors were not in station according to the assessee company since the directors were not in station according to the assessee company since the directors were not in station till 23.03.2014, the Ld. AR had requested for adjournment till that time. till 23.03.2014, the Ld. AR had requested for adjournment till that time. till 23.03.2014, the Ld. AR had requested for adjournment till that time. Though the AO has stated that he has issued summons on 24.03.2014 to the Though the AO has stated that he has issued summons on 24.03.2014 to the Though the AO has stated that he has issued summons on 24.03.2014 to the assessee company to produc assessee company to produce the directors of the company before him on e the directors of the company before him on 26.03.2014, the assessee company contended that it has not received the 26.03.2014, the assessee company contended that it has not received the 26.03.2014, the assessee company contended that it has not received the said summon and, therefore, could not make the personal appearance. The said summon and, therefore, could not make the personal appearance. The said summon and, therefore, could not make the personal appearance. The Assessment Year: 2012-13 M/s. Pratistha Commercial Pvt. Ltd AO has drawn adverse conclusion basically because of non AO has drawn adverse conclusion basically because of non-appearanc appearance of the directors of the assessee company and that of the shareholder the directors of the assessee company and that of the shareholder the directors of the assessee company and that of the shareholder companies. We note that initially the AO started the enquiry on 16.08.2013 companies. We note that initially the AO started the enquiry on 16.08.2013 companies. We note that initially the AO started the enquiry on 16.08.2013 which was complied by the assessee by submitting documents which has which was complied by the assessee by submitting documents which has which was complied by the assessee by submitting documents which has been acknowledged by the AO. Thereafter been acknowledged by the AO. Thereafter, the enquiry was started only at , the enquiry was started only at the fag end of February 2014 and the assessee company had informed the the fag end of February 2014 and the assessee company had informed the the fag end of February 2014 and the assessee company had informed the AO that their directors were out of station till 23.03.2014. In the light of the AO that their directors were out of station till 23.03.2014. In the light of 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 assessee did not get aforesaid facts, we are of the opinion that the assessee did not get aforesaid facts, we are of the opinion that the assessee did not get fair opportunity to present the evidences before the AO so, there was a lack of opportunity to present the evidences before the AO so, there was a lack of 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. 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 We also note that Ld. Cit while setting aside the order of the AO 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 which was passed u/s. 147/143(3) of the Act, the Ld. CIT gave certain , the Ld. CIT gave certain guidelines to follow for conducting deep investigation. We also note that guidelines to follow for conducting deep investigation. We also note that guidelines to follow for conducting deep investigation. We also note that similarly placed assessees had challenged the exercise of revisional similarly placed assessees had challenged the exercise of revisional similarly placed assessees had challenged the exercise of revisional jurisdiction u/s. 263 of the Act before this Tribunal in those cases one of it of jurisdiction u/s. 263 of the Act before this Tribunal in those cases one of it of 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 dated ha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in ITA No. 1104/Kol/2014 dated ha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in ITA No. 1104/Kol/2014 dated 30.07.2015, wherein the Tribunal was pleased to uphold the order passed by 30.07.2015, wherein the Tribunal was pleased to uphold the order passed by 30.07.2015, 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 been the Ld. CIT passed u/s. 263 of the Act, which we learn to have been the Ld. CIT passed u/s. 263 of the Act, which we learn to have been confirmed by the Hon’ble jurisdictional High confirmed by the Hon’ble jurisdictional High Court and the SLP preferred Court and the SLP preferred against the decision of the Hon’ble jurisdictional High Court has been against the decision of the Hon’ble jurisdictional High Court has been against the decision of the Hon’ble jurisdictional High Court has been dismissed by the Hon’ble Supreme Court. Therefore, similar order of the Ld. dismissed by the Hon’ble Supreme Court. Therefore, similar order of the Ld. dismissed by 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 CIT passed u/s. 263 of the Act has been upheld. We note that the AO while CIT passed u/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 effect to the CIT’s 263 order has noted that the assessee company has effect to the CIT’s 263 order has noted that the assessee company has in fact furnished the documents sought by him to his notice u/s. 142(1) of in fact furnished the documents sought by him to his notice u/s. 142(1) of in fact furnished the documents 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 the Act. However, the AO took the adverse view against the assessee on the the Act. However, the AO took the adverse view against the assessee on the plea that the directors of the ass plea that the directors of the assessee company and share subscribing essee company and share subscribing companies had not appeared before him on 26.03.2014 and t after taking companies had not appeared before him on 26.03.2014 and t after taking companies had not appeared before him on 26.03.2014 and t after taking note that none appeared on 26.03.2014 concluded on the same day note that none appeared on 26.03.2014 concluded on the same day 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 26.03.2014 that entire amount of share application money received along 26.03.2014 that entire amount of share application money received along with premium amounting to Rs.8,06,00,000/ m amounting to Rs.8,06,00,000/- which has remained which has remained unexplained and added to the income of the assessee. We also note that the unexplained and added to the income of the assessee. We also note that the unexplained and added to the income of the assessee. We also note that the Ld. CIT after looking into the pernicious practice of converting black money Ld. CIT after looking into the pernicious practice of converting black money Ld. CIT after looking into the pernicious practice of converting black money into white money has given the guidelines to AO as into white money has given the guidelines to AO as to how the investigation to how the investigation should be conducted to find out the source of source. Since similar order of should be conducted to find out the source of source. Since similar order of 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 been upheld by the Tribunal as the Ld. CIT passed u/s. 263 of the Act has been upheld by the Tribunal as 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 the SLP has been well as by the Hon’ble Calcutta High Court as well as the SLP has been 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. CIT has to d by the Hon’ble Supreme Court, similar order of the Ld. CIT has to d 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. CIT be given effect to as directed by the Ld. CIT. We take note that the Ld. CIT be 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 with his experience and wisdom has given certain guidelines in the with his experience and wisdom has given certain guidelines in the backdrop of black money menace should have backdrop of black money menace should have been properly enquired into been properly enquired into as directed by him. The AO ought to have followed the investigating as directed by him. The AO ought to have followed the investigating as directed by him. The AO ought to have followed the investigating guidelines and method as directed by him to unearth the facts to determine guidelines and method as directed by him to unearth the facts to determine guidelines and method as directed by him to unearth the facts to determine whether the identity, genuineness and creditworthiness of the share whether the identity, genuineness and creditworthiness of the share whether the identity, genuineness and creditworthiness of the share subscribers. We note that the Hon’ble Supreme Court in three judges bench note that the Hon’ble Supreme Court in three judges bench note that the Hon’ble Supreme Court in three judges bench in the case of Tin Box, (supra), has held that since there was lack of in the case of Tin Box, (supra), has held that since there was lack of in the case of Tin Box, (supra), has held that since there was lack of opportunity to the assessee at the assessment stage itself, the assessment opportunity to the assessee at the assessment stage itself, the assessment opportunity to the assessee at the assessment stage itself, the assessment needs to be done afresh and thereby reversed the Ho needs to be done afresh and thereby reversed the Hon’ble High Court, n’ble High Court, Tribunal and CIT(A)’s orders and remanded the matter back to AO for fresh Tribunal and CIT(A)’s orders and remanded the matter back to AO for fresh Tribunal and CIT(A)’s orders and remanded the matter back to AO for fresh assessment. So, since there was lack of opportunity as aforestated it has to assessment. So, since there was lack of opportunity as aforestated it has to assessment. So, 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 go back to AO. We also note that the Hon’ble Delhi High Court in the case of go back to AO. We also note that the Hon’ble Delhi High Court in the case of CIT Vs. Jansampark Advertising & Marketing Pvt. Ltd. in ITA No. 525/2014 Jansampark Advertising & Marketing Pvt. Ltd. in ITA No. 525/2014 Jansampark Advertising & Marketing Pvt. Ltd. in ITA No. 525/2014
Assessment Year: 2012-13 M/s. Pratistha Commercial Pvt. Ltd dated 11.03.2015 wherein after noticing inadequate enquiry by authorities dated 11.03.2015 wherein after noticing inadequate enquiry by authorities dated 11.03.2015 wherein after noticing inadequate enquiry by authorities below have held as under: below have held as under: “41. We are inclined to agree with the CIT(Appeals), and consequently with “41. We are inclined to agree with the CIT(Appeals), and consequently with “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 extent of their conclusion that the assessee herein had come up 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 with some proof of identity of some of the entries in question. But, from this with some proof of identity of some of the entries in question. But, from this inference, or form the fact that the transactions were through banking inference, or form the fact that the transactions were through banking inference, or form the fact that the transactions were through banking channels, it does not necessarily followi channels, it does not necessarily following that satisfaction as to the ng that satisfaction as to the creditworthiness of the parties or the genuineness of the transactions in creditworthiness of the parties or the genuineness of the transactions in creditworthiness of the parties or the genuineness of the transactions in question would also have been established. question would also have been established.
The AO here may have failed to discharge his obligation to conduct a 42. The AO here may have failed to discharge his obligation to conduct a 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), proper inquiry to take the matter to logical conclusion. But CIT(Appeals), proper inquiry to take the matter to logical conclusion. But CIT(Appeals), having noticed want of proper inquiry, could not have closed the chapter having noticed want of proper inquiry, could not have closed the chapter having noticed want of proper inquiry, could not have closed the chapter simply by allowing the appeal and d simply by allowing the appeal and deleting the additions made. It was also eleting the additions made. It was also the obligation of the first appellate authority, as indeed of ITAT, to have the obligation of the first appellate authority, as indeed of ITAT, to have the obligation of the first appellate authority, as indeed of ITAT, to have ensured that effective inquiry was carried out, particularly in the fact of the ensured that effective inquiry was carried out, particularly in the fact of the ensured that effective inquiry was carried out, particularly in the fact of the allegations of the Revenue that the account statements revea allegations of the Revenue that the account statements reveal uniform l uniform pattern of cash deposits of equal amounts in the respective accounts pattern of cash deposits of equal amounts in the respective accounts pattern of cash deposits of equal amounts in the respective accounts preceding the transactions in question. This necessitated a detailed scrutiny preceding the transactions in question. This necessitated a detailed scrutiny preceding the transactions in question. This necessitated a detailed scrutiny of the material submitted by the assessee in response to the notice under of the material submitted by the assessee in response to the notice under of the material submitted by the assessee in response to the notice under Section148 issued by the Section148 issued by the AO, as also the material submitted at the stage of AO, as also the material submitted at the stage of appeals, if deemed proper by way of making or causing to be made a appeals, if deemed proper by way of making or causing to be made a appeals, if deemed proper by way of making or causing to be made a 'further inquiry’ in exercise of the power under Section 250(4). His approach 'further inquiry’ in exercise of the power under Section 250(4). His approach 'further inquiry’ in exercise of the power under Section 250(4). His approach not having been adopted, the impugned order of ITAT, and con not having been adopted, the impugned order of ITAT, and consequently sequently that of CIT(Appeals), cannot be approved or upheld." that of CIT(Appeals), cannot be approved or upheld." In view of the aforesaid order and in the light of the Hon’ble Supreme In view of the aforesaid order and in the light of the Hon’ble Supreme In view of the aforesaid order and in the light of the Hon’ble Supreme Court’s decision in Tin Box Company (supra) and taking into consideration Court’s decision in Tin Box Company (supra) and taking into consideration Court’s decision in Tin Box Company (supra) and taking into consideration the fact the order of the Ld. CIT passed u/s. 26 the fact the order of the Ld. CIT passed u/s. 263 of the Act in similar cases 3 of the Act in similar cases being upheld up to the level of Apex Court, and taking note of Hon’ble Delhi being upheld up to the level of Apex Court, and taking note of Hon’ble Delhi being upheld up to the level of Apex Court, and taking note of Hon’ble Delhi High Court’s order in Jansampark Advertising & Marketing Pvt. Ltd. (supra), High Court’s order in Jansampark Advertising & Marketing Pvt. Ltd. (supra), High Court’s order in Jansampark Advertising & Marketing Pvt. Ltd. (supra), we set aside the order of the Ld. CIT(A) and remand the matter back to th we set aside the order of the Ld. CIT(A) and remand the matter back to th 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 to decide the matter in accordance to file of AO for de novo assessment and to decide the matter in accordance to file of AO for de novo assessment and to decide the matter in accordance to law after giving opportunity of being heard to the assessee. law after giving opportunity of being heard to the assessee.
7. We, therefore, consider it fair and proper and in the interest of We, therefore, consider it fair and proper and in the interest of We, therefore, consider it fair and proper and in the interest of justice to set aside the orders of the authori justice to set aside the orders of the authorities below on the issue in dispute ties below on the issue in dispute and restore the matter to the file of the A.O. to decide the same afresh after and restore the matter to the file of the A.O. to decide the same afresh after and restore the matter to the file of the A.O. to decide the same afresh after giving the assessee proper and sufficient opportunity of being heard and giving the assessee proper and sufficient opportunity of being heard and giving the assessee proper and sufficient opportunity of being heard and after taking into consideration the entire evidence already available after taking into consideration the entire evidence already available after taking into consideration the entire evidence already available on record as well as other documentary evidence which the assessee may record as well as other documentary evidence which the assessee may record as well as other documentary evidence which the assessee may choose to file in support of its case on the issue.” choose to file in support of its case on the issue.”
The Kolkata Bench of the ITAT has passed similar order in many cases on The Kolkata Bench of the ITAT has passed similar order in many cases on The Kolkata Bench of the ITAT has passed similar order in many cases on the same issue of additions m the same issue of additions made u/s 68 of the share capital and has set aside the has set aside the assessment to the file of the AO for fresh adjudication assessment to the file of the AO for fresh adjudication. The Assessing Officer may . The Assessing Officer may examine the evidence already on record as well as other documentary evidences examine the evidence already on record as well as other documentary evidences examine the evidence already on record as well as other documentary evidences which the assessee may file before him and adjudicate which the assessee may file before him and adjudicate the issue the issue de novo, in Assessment Year: 2012-13 M/s. Pratistha Commercial Pvt. Ltd accordance with the directions given by the ld. CIT in the order passed/s 263 of accordance with the directions given by the ld. CIT in the order passed/s 263 of accordance with the directions given by the ld. CIT in the order passed/s 263 of the Act, in all such cases.
Keeping in view the totality of the facts and circumstances of the case and Keeping in view the totality of the facts and circumstances of the case and 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 ordinate Bench of the Tribunal in similar matters, we set ordinate Bench of the Tribunal in similar matters, we set aside this issue to the file of the to the file of the Assessing Officer for fresh adjudication in esh adjudication in accordance with law, with a direction to consider the additional ground as well as with a direction to consider the additional ground as well as with a direction to consider the additional ground as well as, to follow the directions of the ld. CIT issued u/s 263 of the Act, in similar cases, to follow the directions of the ld. CIT issued u/s 263 of the Act, in similar cases, to follow the directions of the ld. CIT issued u/s 263 of the Act, in similar cases, after giving the assessee adequate opportunity of being heard. adequate opportunity of being heard.
In the result, appeal of the assesse In the result, appeal of the assessee is allowed for statistical purposes. e is allowed for statistical purposes.
Kolkata, the Kolkata, the 8th day of November, 2019. Sd/- Sd/- [S.S. Godara] [J. Sudhakar Reddy J. Sudhakar Reddy] Judicial Member Accountant Accountant Member Dated : 08.10.2019 {SC SPS} Copy of the order forwarded to: opy of the order forwarded to: 1. M/s. Pratistha Commercial Pvt. Ltd M/s. Pratistha Commercial Pvt. Ltd 107, 4th Floor Room No. 401 Old China Bazaar Street Brabourne Road Kolkata – 700 001 2. Deputy Commissioner of Income Tax, Circle Deputy Commissioner of Income Tax, Circle-9(2), Kolkata
CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.