M/S SREEDEB SUPPLIERS & TRADERS PVT. LTD.,KOLKATA vs. ITO, WD-4(2), KOLKATA, KOLKATA

Facts in brief:- The assessee is a company and is in the business of trading in shares and securities and investment. It filed it return of income on 30/09/2008. The same was processed u/s 143(1) of the Act. Thereafter, notice u/s 148 of the Act was issued to the assessee company and the assessment pursuant thereto was completed and order was passed u/s 147/143(3), on 28/05/2010. The share capital issued and allotted by the company was accepted as genuine in these proceedings by the Assessing Officer. Thereafter, the Commissioner of Income Tax, Kolkata-II, passed an order u/s 263 of the Act, on 30/03/2013. In this order, the ld. CIT, directed as follows:-

Further aggrieved, the assessee is in appeal before us.

The ld. Counsel for the assessee submitted that the directions given by the ld. CIT in the order passed u/s 263 of the Act, could not be complied with, by the Assessing Officer and that the ld. Assessing Officer has stated that it is not possible to comply with these directions. He pointed out that the Assessing Officer was directed to conducted independent enquiries and that no enquiry should be conducted through the assessee company. Thus, he submits that the company has no role to play and despite this fact, the director of the assessee company, Mr. Kanti Chand Sipani, appeared before the Assessing Officer and submitted the required details. Referring to the directions of the ld. CIT, he submitted that the direction was to examine the ex-directors as well as to examine the circumstances that necessitated the change of Directorship and also to examine the source of realization from the liquidation of assets. These directions, as per the ld. Counsel for the assessee, have nothing to do with the identity, capacity and genuineness of the share applicants. He submitted that the entire premises on which the addition was made by the Assessing Officer was, non-appearance of the erstwhile directors before the Assessing Officer in response to the summons u/s 131 of the Act. He contended that no addition can be made on such a finding. On the order of the ld. CIT(A), he submitted that the order was passed by relying on the decision of the jurisdictional ITAT in the case of M/s. Subhalakshmi Vanijya Pvt. Ltd. & Ors. (ITA No. 1104/Kol/2014, dt. 30/08/2015), without establishing the relationship of this case with the case of the assessee. He submitted that the ld. CIT(A) has wrongly upheld the order of the Assessing Officer. He pointed out that none of the assets of the company were liquidated after change of directors of the company in this year.

The ld. D/R, on the other hand, opposed the contentions of the assessee and submitted that he Assessing Officer tried his best to comply with the order of the ld. CIT, passed u/s 263 of the Act. He submitted that the summons were issue to the erstwhile Directors u/s 131 of the Act and the same have not been complied with. He relied on the order of the Assessing Officer as well as the ld. CIT and submitted that the genuineness of the transactions could not be verified by the Assessing Officer due to non-co- operation of the ex-directors and non-compliance to the notice issued u/s 131 of the Act to the former Directors. He submitted that the former Directors were not found at the addresses and the notice sent to them were returned. He supported the order of the Assessing Officer that failure of the ex-directors to respond to summons issued leads to a conclusion that the credits are not proved. He submitted that the assessee has not co- operated before the ld. CIT(A). 5.1. In reply, the ld. Counsel for the assessee submitted that, the postal authorities have returned the notices issued by the Income Tax Department, with the remark “left”, which does not lead to an inference that such directors did not exist. He pointed out to the letters filed before the Assessing Officer by the assessee on 24./03/2014, wherein the new address of the Director, Mr. Manish Dalmiya, was given. He further submitted that the details from the Registrar of Companies, were also furnished which confirms the existence of these directors. He referred to the audited accounts of earlier years and submitted that all the ex-directors offered their signatures thereto. He pointed out that the return of income for Assessment Year 2008-09 was filed under the digital signature of Mr. Manish Dalmiya the ex-director and that Mr. Jaikishan Sharma another ex- Assessment Year: 2008-09 M/s. Sreedeb Suppliers & Traders Pvt. Ltd director offered his digital signature for filing the return of income for the Assessment Year 2010-11. He argued that no addition can be made just because of non-recording of statements from them. He submitted that this has nothing to do with the evidence furnished o prove the cash credits in this case.

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 below as well as case law cited, we hold as follows:- 7. In this case, the Assessing Officer issued a notice u/s 142(1) of the Act, on 23/01/2014. The present director Mr. Kanti Chand Sipani, appeared and submitted details on 18/02/2014. Summons were issued to Mr. Jaikishan Sharma, Mr. Manish Dalmiya and Mr. Rahit Newar by issuing notice u/s 131 of the Act, fixing the date of hearing as 14/03/2014. The notices on Mr. Jaikishan Sharma and Mr. Rahit Newar were served. The notice in the case of Mr. Manish Dalmiya returned unserved with the postal remark “left”. As the directors did not appear before the Assessing Officer, an assessment order was passed on 27/03/2014. 7.1. The assessee pleads that non-appearance of former directors of the assessee company cannot be a ground of addition. It also pleads that far back in the year 2010, these directors resigned and hence are not in contact with the assessee. He further submits that, as per the directions of the ld. CIT, the assessee has no role to play and that the Assessing Officer has to conduct independent enquiries. 7.2. Though there is force in the submissions of the assessee, we are of the considered opinion that the Assessing Officer has not discharged his duty of framing the assessment order by following the directions of the ld. CIT in the order passed u/s 263 of the Act. The proceedings in this case were taken up at the fag end of the limitation period. Orders were passed without giving adequate opportunity and without proper investigation. Under similar circumstances, this Tribunal in in M/s. Star Griha (P) Ltd. Vs. ITO for AY 2008-09 dated 15.12.2017 has observed as under:- “……We also note that the Ld. CIT after looking into the pernicious practice of converting black money into white money has given the guidelines to AO Assessment Year: 2008-09 M/s. Sreedeb Suppliers & Traders Pvt. Ltd as to how the investigation should be conducted to find out the 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 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. 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. The AO ought to have followed the investigating guidelines and method as directed 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 (three judges bench) 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 needs to be done afresh and thereby reversed the Hon’ble High Court, 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 go back to AO…….”

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 want of proper 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 appellate authority, as indeed of ITAT, to have ensured that effective inquiry was carried out, particularly in the fact of the allegations of the Revenue that the account statements reveal uniform pattern of cash deposits of equal amounts in the respective accounts preceding the transactions in question. This necessitated a detailed scrutiny of the material submitted by the assessee in response to the notice 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 inquiry’ in exercise of the power under Section 250(4). His approach not having been adopted, the impugned order of ITAT, and consequently that of CIT(Appeals), cannot be approved or upheld."

In the result, appeal of the assessee is allowed for statistical purposes. Kolkata, the 9th day of November, 2018. Sd/- Sd/- [Madhumita Roy] [J. Sudhakar Reddy] Judicial Member Accountant Member Dated : 09.11.2018 {SC SPS} Assessment Year: 2008-09 M/s. Sreedeb Suppliers & Traders Pvt. Ltd Copy of the order forwarded to: 1. M/s. Sreedeb Suppliers & Traders Pvt. Ltd C/o. Praveen Jyoti & Associates G1, Ground Floor 1A, Vansittart Row Damodar House Kolkata – 700 001