ITO, WARD 11(1), KOLKATA, KOLKATA vs. M/S SCOPE VYAPAAR PVT. LTD., KOLKATA
What did the Tribunal hold?
The CIT(A) admitted evidence filed by the assessee for the first time without calling for a remand report as required by Rule 46A of the IT Rules. This omission vitiated the CIT(A)'s order.
What were the facts?
The Assessing Officer (AO) made an addition of Rs. 12,62,80,000/- on account of share capital and premium because the assessee failed to appear with its books of account and other relevant documents. The assessee contended before the CIT(A) that the AO did not permit it to produce documentary evidence.
What were the issues?
Whether the CIT(A) erred by admitting additional evidence without following the procedure laid down in Rule 46A of the IT Rules, thereby violating the principles of natural justice.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “D” BENCH: KOLKATA
This appeal preferred by the revenue is against the order of the Ld. CIT(A)-4, Kolkata dated 20.06.2016 for AY 2012-13.
None appeared on behalf of the assessee. At the outset itself, the Ld. DR drew our attention to the fact that even though the matter has been listed 11 times, the assessee has not bothered to appear and that itself shows that the assessee is again carrying out the same strategy it took before the AO. It was brought to our notice that the AO has passed the order after observing that even though notices were issued and summons u/s. 131 of the Income- tax Act, 1961 (hereinafter referred to as the “Act”) were issued and neither anyone appeared on behalf of the assessee with its books of account, bank statement, copies of income tax returns etc. nor on behalf of the share subscribing companies who have subscribed shares by remitting heavy premium. Therefore, the AO had no other alternative but to make the addition of Rs.12,62,80,000/- (share capital of Rs.54,42,160/- + premium of Rs.12,08,37,840/-). However, it was brought to our notice by the Ld. DR that though one of Scope Vyapaar Pvt. Ltd., AY 2012-13 the main plea of the assessee before the Ld. CIT(A) was that (ground no. 3) the AO did not permit the assessee to produce relevant documentary evidence, papers, books of account etc. in the course of the assessment, therefore, the assessment order was bad in law for want of proper opportunity of hearing. The Ld. DR thereafter pointed out that the Ld. CIT(A) has acknowledged that the assessee had filed relevant supporting evidence before him for the first time, however, Ld. CIT(A) did not bother to even call for remand report as envisaged under Rule 46A of the I. T. Rules, 1962. We note that the AO issued summons u/s. 131 of the Act to ascertain the genuineness of the transaction and creditworthiness of the share subscribing companies and also to understand the reason for investment with such a high premium to the Principal Officer of the share subscribing Companies and called for various details like documents for identity proof and address proof, copies of documents in relation to all debit and credit entries, all relevant bank statements, copies of all relevant ROC returns, source of fund and utilisation of funds, evidence of creditworthiness along with Income Tax Returns filed and copies of Balance Sheet, P&L Account, tax audit report for the relevant assessment year and written submission regarding purpose of raising funds from the share applicant. It was brought to our notice that in para 13 the AO has specifically recorded that none appeared with its books and other documents to explain the nature and source of the credit entry appearing in the books of account. In such a scenario, when the appeal was preferred by the assessee before the Ld. CIT(A) and has raised ground no. 3 wherein it was specifically pleaded by the assessee that the AO did not permit the assessee to produce relevant documentary evidence and allowed the parties to present its case in the course of assessment proceedings, the Ld. CIT(A) before admitting the evidence which the assessee produced before him for the first time, ought to have firstly called for a remand report as envisaged under Rule 46A of the Rules before admitting additional evidence/evidence; And after admission of evidence as per law, has to again call for report from AO on the merits of the documents presented before him, which exercise the ld CIT(A) has not admittedly carried out in this case before adjudicating the appeal. Though the revenue has not raised in its grounds, the issue of violation of Rule 46A of the Rules, the Ld. DR raised it as a legal issue of Ld. CIT(A) not following the Rule 46A, which omission according to us itself vitiates the order of the Ld. CIT(A), therefore, in the interest
Scope Vyapaar Pvt. Ltd., AY 2012-13 of justice and fair play, we are inclined to set aside the order of the Ld. CIT(A) and remand the matter back to the file of AO for fresh assessment after giving reasonable opportunity of being heard to the assessee. The assessee is directed to produce all documents necessary to prove its identity, creditworthiness and genuineness of the credit entries in accordance to law and the AO to frame the assessment in accordance to law by passing a speaking order.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order is pronounced in the open court on 30/11/2018 Sd/- Sd/- (J. Sudhakar Reddy) (A. T. Varkey) Accountant Member Judicial Member Dated: 30th November, 2018 Jd.(Sr.P.S.) Copy of the order forwarded to:
1 Appellant – ITO, Ward-11(1), Kolkata 2 Respondent – Scope Vyapaar Pvt. Ltd., 7/1A, Topsia 2nd Lane, Tiljala, Kolkata-700 039. 3 CIT(A)-4, Kolkata. (sent through e-mail) CIT , Kolkata 4 DR, Kolkata Benches, Kolkata (sent through e-mail) 5
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