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Income Tax Appellate Tribunal, KOLKATA‘A’ BENCH, KOLKATA
Before: Sri J. Sudhakar Reddy& Sri S.S. Viswanethra Ravi]
Appearances by: ShriManoj Kataruka, Advocate,appeared on behalf of the assessee. Shri P.K. Srihari, CIT, D/R,appearing on behalf of the Revenue. Date of concluding the hearing :May 17th,2018 Date of pronouncing the order :July 4th,2018 ORDER Per J. SudhakarReddy :-
This appeal filed by the revenue is directed against the order of the ld. Commissioner of Income Tax (Appeals)–2, Kolkata, (hereinafter the ‘ld. CIT (A)’), passed u/s 250 of the Income Tax Act, 1961 (the ‘Act’), dt.14/09/2015, relating to Assessment Year 2008-09.
Facts in brief:- The Assessing Officer passed an order u/s 143(3) r.w.s. 263 of the Act, on 31/03/2014. He made an addition of Rs.5,85,00,000/-, being share capital and share premium received by the assessee u/s 68 of the Act. On appeal, the ld. First Appellate Authority deleted the addition by giving various reasons.
Aggrieved the revenue is before us in appeal on the following grounds:- “
1. Whether on the facts and in the circumstances of the case, Ld. CIT(A) erred in deleting the unexplained sum of Rs. 5,85,00,000/- credited into the books of accounts during the year shown as share application money including share premium.
2. Whether on the facts and in the circumstances of the case, Ld. CIT(A) failed to appreciate that assessee's crediting of such sum into its books was not established to be genuine.
Assessment Year: 2008-09 M/s. PujanDealcomPvt. Ltd 3. Whether on the facts and in the circumstances of the case, Ld. CIT(A) erred in deleting the Rs. 5,85,00,000/- by ignoring the decision of the Hono'ble Supreme Court in the case of SumatiDayal (214 ITR 801) Hon'ble Delhi HC's decision in Nova Promoter & Finance Pvt Ltd.
Whether on the facts and in the circumstances of the case, Ld. CIT(A) erred in deleting the said addition ignoring the fact that some of the companies in question are known entry operator.
Whether on the facts and in the circumstances of the case, Ld. CIT(A) erred in deleting the addition without giving an opportunity to the AO to actually examine the issue in any remand proceeding.”
4. The ld. D/R, Shri P.K. Srihari, submitted that the ld. CIT(A) has not considered the entire issue in the proper perspective. He argued that the assessee in this case had issued shares for face value of Rs. 10/- per share at a premium in the range of Rs.90/- to Rs.490/- per share. He pointed out that the decision of the Hon’ble Jurisdictional High Court in the case of GA NO.509 OF 2016 WITH ITAT NO.113 OF 2016 RAJMANDIR ESTATES PRIVATE LIMITED. Versus PRINCIPAL COMMISSIONER OF INCOME TAX, KOLKATA – III, KOLAKTA. 13th May 2016 and the judgement of the Hon’ble ITAT in the case of M/s. Blessings Commercial Pvt. Ltd, being for the Assessment Year: 2010-11, order dt. 28.06.2017, has not been considered by the ld. CIT(A). He pleaded that the order of the Assessing Officer be upheld and that of the ld. CIT(A) be reversed.
5. The ld. Counsel for the assessee, Mr. Manoj Kataruka, on the other hand, strongly opposed the contentions of the ld. D/R, and submitted that the premium cannot be brought to tax as income prior to the amendment brought into the Income Tax Act and that this proposition of law is supported by the judgment of the Hon’ble Bombay High Court in the case of Vodafone India Services Pvt. Ltd. v. Union of India. He submitted that the ld. CIT(A), had relied on a number of case-law, while coming to the conclusion that share capital and premium in question cannot be added as income under the law. He relied on the same and prayed that the same be upheld. 6. Rival contentions heard. After perusal of the papers on record, orders of the Authorities below as well as case-law cited, we hold as follows:- We have gone through the order of the ld. Commissioner of Income Tax-2, Kolkata, passed u/s 263 of the Act, dt. 30/03/2013, for the Assessment Year 2008-09 and the assessment order passed u/s 143(3), r.w.s. 263, as well as the detailed order of the ld. CIT(A), dt. 10/09/2015. In our view, the ld. CIT(A) while granting relief has not considered
Assessment Year: 2008-09 M/s. PujanDealcomPvt. Ltd the decisions of the Hon’ble Jurisdictional High Court in the case of Rajmandir Estates Pvt. Ltd. (supra) and the jurisdictional ITAT in the case of Blessings Commercial (supra). We also find that the Assessing Officer has not followed the guidelines given by the Commissioner of Income Tax -2, Kolkata, in the order u/s 263, while restoring the original assessment to the file of the Assessing Officer for fresh assessment. The Assessing Officer in our view has not conducted appropriate enquiries in accordance with directions given by the ld. CIT.
7. Under similar circumstances, the Kolkata Bench of the ITAT in various cases having similar facts and circumstances, restored the matter to the file of the Assessing Officer for fresh adjudication, in accordance with law. The Kolkata bench of the Tribunal in the case of Sriram Tie Up Pvt. Ltd., Kolkata vs ITO, Wd-9(4), Kolkata, Assessment Year: 2009-10 March 21, 2018, held as follows:-
In the case of M/s. Sukanya Merchandise Pvt. Ltd. vs ITO (ITA 291/Kol/2016 dated 15.12.2017) cited by the learned counsel for the assessee, a similar view has been taken by the Co-ordinate Bench of this Tribunal and the similar issue relating to the addition made under section 68 on account of share capital contribution by treating the same as 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 under: We note that the AO pursuant to the order of Ld. CIT had taken note of the 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, I. T. Acknowledgement, bank statement for the relevant period evidencing the receipt of share application money from the share applicants. Thereafter, the AO makes certain inferences based on the list of shareholders and taking note of the bank statement furnished by the assessee. We note that after the initial notice dated 16.08.2013, thereafter 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 assessee company to be present before him on 06.03.2014. However, according to the Ld. AR, the assessee received the notice only on 07.03.2014 and thereafter, the assessee requested the AO to provide another 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 10.03.2014. So, 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. Though the AO has stated that he has issued summons on 24.03.2014 to the assessee company to produce the directors of the company before him on 26.03.2014, the assessee company contended that it has not received the said summon and, therefore, could Assessment Year: 2009-10 M/s. Sriram Tie Up Pvt. Ltd. not make the personal appearance. The AO has drawn adverse conclusion basically because of non-appearance of 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 which was complied by the assessee by submitting documents which has been acknowledged by the AO. Thereafter, the enquiry was started only at 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 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 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 which was passed u/s. 147/143(3) of the Act, the Ld. CIT gave certain guidelines to follow for conducting deep Assessment Year: 2008-09 M/s. PujanDealcomPvt. Ltd investigation. We also note that 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 Subha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in dated 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 confirmed by the Hon'ble jurisdictional High Court and the SLP preferred 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. 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 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 plea that the directors of the assessee company and share subscribing 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 26.03.2014 that entire amount of share application money received along with premium amounting to Rs.8,06,00,000/- which has remained 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 into white money has given the guidelines to AO as to how the investigation 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 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 I.T.A. No. 1104/Kol/2016 Assessment Year: 2009-10 M/s. Sriram Tie Up Pvt. Ltd. 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 in 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. 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 dated 11.03.2015 wherein after noticing inadequate enquiry by authorities below have held as under: "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 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 channels, it does not necessarily following that satisfaction as to the creditworthiness of the parties or the genuineness of the transactions in question would also have been established.
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 I.T.A. No. 1104/Kol/2016 Assessment Year: 2009-10 M/s. Sriram Tie Up Pvt. Ltd.
Assessment Year: 2008-09 M/s. PujanDealcomPvt. Ltd approach not having been adopted, the impugned order of ITAT, and consequently that of CIT(Appeals), cannot be approved or upheld." 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 the fact the order of the Ld. CIT passed u/s. 263 of the Act in similar cases 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), 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 law after giving opportunity of being heard to the assessee.
We, therefore, consider it fair and proper and in the interest of justice to set aside the orders of the authorities below on the issue in dispute 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 after taking into consideration the entire evidence already available on record as well as other documentary evidence which the assessee may choose to file in support of its case on the issue. Consistent with the view taken therein, we restore this issue to the file of the Assessing Officer for fresh adjudication, in accordance with law. The Assessing Officer shall follow the directions given by the ITAT in the above order while framing the fresh assessment.
In the result, appeal of the revenue is allowed for statistical purposes.