M/S BARKHA VINCOMM PVT. LTD.,KOLKATA vs. I.T.O., WARD-3(3), KOLKATA

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ITA 584/KOL/2019Status: DisposedITAT Kolkata05 April 2019AY 2012-134 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that the assessee did not receive notices from the CIT(A) and was not given sufficient opportunity by the AO. Therefore, the Tribunal set aside the CIT(A)'s order and restored the matter to the AO for fresh adjudication.

What were the facts?

The assessee company received share capital and premium of Rs. 9.34 crores. The Assessing Officer (AO) treated this as unexplained cash credit and made an addition under Section 68 due to non-compliance with summons. The CIT(A) dismissed the assessee's appeal ex-parte for non-compliance with notices.

What were the issues?

Whether the addition made under Section 68 for unexplained share capital was justified without providing sufficient opportunity to the assessee. Whether the ex-parte dismissal by the CIT(A) was proper given the circumstances.

Which sections of the Income-tax Act were involved?

Section 68,Section 131,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, KOLKATA BENCH (A

Before: Shri P.M. Jagtap & Shri S. S. Viswanethra Ravi, JM]

Per P.M. Jagtap, Vice President

1.

This appeal filed by the assessee is directed against the order of Ld. CIT(A) – 11, Kolkata dated 31.01.2019 passed ex-parte whereby he dismissed the appeal of the assessee.

2.

The assessee in the present case is a company which filed its return of income for the year under consideration declaring a total income of Rs. 2,800/-. During the course of assessment proceedings, the claim of the assessee of having received share capital and share premium amount aggregating to Rs. 9.34 crores was examined by the AO. During the course of the said examination, he issued summons u/s 131 to the Principal Officers of the share subscriber companies.

2 M/s. Barkha Vincomm Pvt. Ltd. Assessment Year: 2012-13 Some of the said summons issued by the AO were returned unserved by the postal authority. In response to the other summons which were duly served, the directors of the concerned share subscriber companies appeared before the AO, but sought time to produce the relevant details and documents for verification. Keeping in view this non-compliance to the summons issued u/s 131, the AO treated the share capital and share premium amount aggregating to Rs. 9.34 crores as unexplained cash credit and addition to that extent was made by him to the total income of the assessee u/s 68 in the assessment completed u/s 143(3) vide an order dated 09.03.2015.

3.

Against the order passed by the AO u/s 143(3), an appeal was preferred by the assessee before the Ld. CIT(A) and since there was no satisfactory compliance on the part of the assessee to the notices issued by him fixing the said appeal for hearing from time to time, the Ld. CIT(A) dismissed the appeal of the assessee vide his appellate order dated 31.01.2019 passed ex-parte thereby confirming the addition made by the AO u/s 68. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal.

4.

We have heard the arguments of both the sides and also perused the relevant material available on record. The learned counsel for the assessee has submitted that no notice of hearing was ever received by the assessee from the Ld. CIT(A) and such non- receipt of the notice resulted into non-appearance of the assessee before the Ld. CIT(A). He has also contended that proper and sufficient opportunity was not given to the assessee even by the AO

3 M/s. Barkha Vincomm Pvt. Ltd. Assessment Year: 2012-13 during the course of assessment proceedings to establish the identity and capacity of the concerned share subscribers as well as the genuineness of the relevant transactions by furnishing the relevant details and documents and by producing the concerned share subscribers for verification / examination before the AO. He has contended that the assessee is in a position to explain the relevant cash credit in the form of share capital and share premium in terms of section 68 by filing the relevant details and documents and by producing the concerned share subscribers for verification / examination of the AO and urged that one more opportunity may be given to the assessee by sending the matter back to the AO. Although the learned DR has contended that the matter should be sent back to the Ld. CIT(A) instead of the AO, keeping in view all the facts and circumstances of the case, we are of the view that it would be fair and proper and in the interest of justice to send the matter back to the AO for proper verification / examination. We accordingly set aside the impugned order passed by the Ld. CIT(A) ex-parte and restore the matter to the file of the AO for deciding the same afresh in accordance with law after giving the assessee proper and sufficient opportunity of being heard. As undertaken by the learned counsel for the assessee, the assessee shall make due compliance before the Assessing Officer and extend all the cooperation in order to enable the AO to complete the assessment expeditiously.

4 M/s. Barkha Vincomm Pvt. Ltd. Assessment Year: 2012-13

5.

In the result, the appeal of the assessee is treated as allowed for statistical purpose. Order Pronounced in the Open Court on 5th April, 2019.

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