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Income Tax Appellate Tribunal, KOLKATA BENCH “D” KOLKATA
Before: Shri S.S.Godara & Dr. A.L. Saini
O R D E R
PER S.S.Godara, Judicial Member:
- This assessee’s appeal for assessment year 2012-13 is directed against the Commissioner of Income Tax (Appeals)-5, Kolkata’s order dated 02.02.2017 passed in case No. 224/CIT(A)-5/W-14(3)/15-16, ex parte affirming the Assessing Officer’s action adding share premium ₹10,22,50,000/-, u/s 68 in assessment order dated 25.03.2015, involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short ‘the Act’. Heard both the parties. Case file perused.
We come to relevant facts. There is no dispute that the Assessing Officer had framed the impugned assessment in assessee’s case on 25.03.2015 adding the share application / share premium money of ₹10,22,50,000/- on account of its alleged failure in proving identity coupled with genuineness and creditworthiness thereof during the course of scrutiny.
M/s Masum Trdelink Pvt. Ltd. Vs. ITO Wd-14(3), Kol. Page 2 He required the assessee to produce all director(s) of the investor(s) entities in the course of assessment. He note in para 2.2.2.2 that the assessee had failed to appear thereafter. This made him to raise very serious doubts on genuineness and creditworthiness of its share premium explained going by hon'ble apex court’s landmark decisions in CIT vs. Durga Prasad More (1971) 82 ITR 540 (SC) and Sumati Dayal vs. CIT (1995) 80 Taxman 89/214 ITR 801 (SC) resulting in the impugned addition.
The assessee preferred appeal. We find that CIT(A) issued three notices on 24.06.2016, 06.09.2016 and 02.12.2016 for corresponding hearings on 20.07.2016, 07.11.2016 and 02.01.2017; respectively. The CIT(A) thereafter records that he received assessee’s letter on 26.12.2016 seeking withdrawal of the lower appeal on the ground that it had preferred section 264 revision before the CIT Kolkata against assessment order. He has accepted this letter in his order under challenge. This leaves the assessee agreed.
We have heard rival submissions. Case file perused. Learned counsel representing instant taxpayer vehemently contends during the course of hearing that CIT(A) has not served his proper notice(s) of hearing at the correct address as stated in its Form No.35 filed before us during the course of hearing. Learned Departmental Representative reiterates the CIT(A)’s findings dismissing the assessee’s appeal as withdrawn in view of its request letter. The fact however, remains that lower appellate hearing notice(s) had not been sent to the correct address. Coupled with this, case file indicates that assessee had sent subsequent letter dated 20.02.2017 before CIT(A) informing him that its above request letter was not based on correct legal advice. We sought to know the outcome of assessee’s revision petition filed section 264 of the Act (supra). Learned counsel takes us to page 40 of paper book containing CIT’s order rejecting the same to be not maintainable section 264(4). We observe in this peculiar backdrop that assessee has been denied adjudication of its grievance in both proceedings simultaneously on mere technicalities i.e. withdrawal letter recalled later on as well revision on account