Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, KOLKATA BENCH ‘A’, KOLKATA
Before: Shri P.M. Jagtap, AM & Shri S.S. Viswanethra Ravi, JM]
order
: March 21, 2018 ORDER
Per P.M. Jagtap, AM
This appeal filed by the assessee is directed against the order of Ld. CIT(A) – 2, Kolkata dated 18.01.2016 whereby he confirmed the addition of Rs. 36,43,50,000/- made by the A.O. on account of share capital and share premium by treating the same as unexplained cash credit under section 68 of the Income Tax Act, 1961.
The assessee in the present case is a company. In the assessment originally completed under section 143(3)/147 vide an order dated 18.05.2010, its total income for the year under consideration was determined by the A.O. at Rs. 68,410/-. The said assessment was subsequently set aside by the Ld. CIT(A) vide an Assessment Year: 2008-09 M/s. Skipper Plastics Ltd. order passed under section 263 on 26.03.2013 with the direction to the A.O. to make the assessment fresh as per the following directions: “The A.O. is directed to: i. Examine the genuineness and source of share capital, not on a test check basis, but in respect of each and every shareholder by conducting independent enquiry not through the assessee. The bank account for the entire period should be examined in the course of verification to find out the money trail of the share capital. ii. Further the A.O. should examine the directors as well as examine the circumstances which necessitated the change in directorship if applicable. He should examine them on oath to verify their credentials as director and reach a logical conclusion regarding the controlling interest. iii. The A.O. is directed to examine the source of realization from the liquidation of assets shown in the balance sheet after the change of directors, if any”
In pursuance of the order of the Ld. CIT under section 263 notices under section 131 of the Act were issued by the A.O. to Mr. Mohan Kumar Kedia and Mrs. Sarita Devi Kedia, the then two directors of the company. The said notices however were returned back by the postal authority unserved. When this position was confronted by the A.O. to the assessee, the letter written by Shri Mohan Kumar Kedia was filed by the assessee before the A.O. stating therein that he himself and Mrs. Sarita Devi Kedia have shifted to the new residence and the notices issued under section 131 and sent to the old address could not be received by them. In the said letter, request was also made by the Shri M.K. Kedia to the A.O. to give some more time to deposit the documentary evidence as per the requirement. The Assessing Officer, however, did not accept the said request of Mr. M.K. Kedia and proceeded to make the addition of Rs. 36,43,50,000/- to the total income of the assessee on account of fresh Assessment Year: 2008-09 M/s. Skipper Plastics Ltd. said capital introduced during the year under consideration for the following reasons given in the assessment order dated 31.03.2014 passed under section 147/143(3)/263/143(3) of the Act: “The fact is that the share capital of the company raised in the F.Y. 2007- 08. Only the then directors can explain and establish the genuineness of fresh share applicants. But there was no compliance by any of them till passing of this order. Due to their non-compliance with summons issued to them u/s 131 to appear before the undersigned, their statement could not be recorded to establish genuineness of the claim that they had raised the share capital in question in their capacity as the then directors of the company during the year under consideration. Thus the direction contained in the order passed u/s 263/143(3)/147 by Ld. CIT, Kol-II, Kolkata to examine the directors on oath to verify their credentials as directors and reach a logical conclusion regarding the controlling interest could not be implemented due to the non-compliance of the then directors of the assessee company. Due to the non-appearance of Mr. Mohan Kumar Kedia and Mrs. Sarita Devi Kedia (the then two directors of the company during the relevant previous year), their identity of being working directors of the assessee company during the relevant previous year as claimed and the genuineness of their having actually worked as directors of the company during the year, as claimed, remained unproven and consequently, the business of the assessee company and genuineness of the fresh share capital introduced during the year also remains unverified, unexamined and unexplained. During the relevant previous year the assessee disclosed its fresh share capital raised of Rs. 36,43,50,000/- which consists of Rs. 3,64,35,000/- (being issued subscribed and paid up shares) and Rs. 32,79,15,000/- (being premium amount for issued shares). Due to the non-compliance of the then three directors as stated above, the fresh share capital during the year amounting to Rs. 36,43,50,000/- remains unexplained, unverified and unexamined. In the circumstances, it is considered that the said amount of Rs. 36,43,50,000/- was the assessee’s income from undisclosed source of the relevant previous year and the same had been introduced in the company as share capital. Hence, the amount shown as fresh share capital introduced Rs. 36,43,50,000/- is added to asessee’s total income.”
Against the order passed by under section 147/143(3)/263/143(3), an appeal was preferred by the assessee Assessment Year: 2008-09 M/s. Skipper Plastics Ltd. before the Ld. CIT(A) challenging the addition of Rs. 36,43,50,000/- made under section 68 by treating the fresh share capital introduced as unexplained cash credit. During the course of appellate proceedings before the Ld. CIT(A), a detailed submission was filed by the assessee wherein, besides challenging the addition made by the A.O. under section 68 on merit, a preliminary issue was raised by the assessee regarding the lack of opportunity given by the A.O. as well as the non consideration of the reply from all the 35 share-holders by the A.O. The submission made by the A.O. in writing in this regard before the Ld. CIT(A) was as under: “In the instant case, the Ld. CIT, Kol-II, exercised her jurisdiction and issued notice u/s 263 of the Act on 18.03.2003. Such notice was never served on the assessee as the address mentioned in the notice was wrong. Consequently an ex-parte order u/s 263 was passed on 26.03.2013 directing the A.O. to make afresh assessment. Against the said order u/s 263 of Ld. CIT, assessee filed appeal before the ITAT, which is still pending. 2.4 In compliance to such direction, the Ld. A.O. issued notice u/s 142(1) on 11.11.2013 which was never received by the assessee company as the address mentioned. In the wrong, a second notice u/s 142(1) dtd. 13.01.2014 was served to our representative by hand delivery. Necessary compliance was made by such share applicants through Speed Post. (copy of the reply was enclosed in the paper book for your kind perusal). Further, the A.O. issued summon u/s 131 to the Act to the directors of the assessee company which was again never served on the directors as the address mentioned were wrong. Finally, the directors got the summons through hand delivery and in response appeared personally before the A.O. and prayed for some time as the document requisitions were more than 6-7 years old. Subsequently, the directors appeared and made the necessary compliance. The directors continuously appeared before the A.O. but he never recorded their appearance and grossly erred in concluding that the directors never appeared. Further, the directors states on oath that he appeared but his statement was not recorded. The Ld. A.O. without making any effort to examine the accounts of the share holders has concluded that because the erstwhile directors have not appeared, the genuinity of the transactions was not proved beyond doubt.
Assessment Year: 2008-09 M/s. Skipper Plastics Ltd. 2.5 The only reasons making addition was that the directors of the assessee company did not appear so the impugned fresh capital of Rs. 36,43,50,000/- could not be verified and remain unverified / unexplained. The very premise of making the addition is itself based on the flimsy grounds. The A.O. himself in page No. 2 of the assessment order admits that Shri M. K. Kedia furnished a written submission that he along with his wife (both the directors) are shifted to a new flat and furnished their new address to the A.O. Therefore, the contention of the A.O. that the directors were not traceable or they had not made sufficient compliance is false. After being convinced with the present directors, the A.O. again shifted the onus on the assessee that they are required to present the then directors who are directors at the time of impugned transactions. Now, A.O. has not taken to consideration that the fact that the company is not a living human being but it is a body corporate which is run by its directors. Therefore, the present directors i.e. Shri M.K. Kedia and Smt. Sarita Devi Kedia were well conversant with the facts and were competent to make necessary compliances to prove the genuineness of the transactions. Under the circumstances, the Ld. A.O. had grossly erred in concluding that the old directors were required to prove the genuineness of the transactions.”
The submissions made by the assessee did not find favour with the Ld. CIT(A) and after considering the issue of addition under section 68 on merit, he also rejected the preliminary issue raised by the assessee regarding lack of opportunity etc. for the following reasons given in para no 6.14 of his order: “As discussed hereinabove, the erstwhile directors of the assessee company had not appeared before the A.O. in response to his summon issued u/s 131 and the assessee also failed to produce them before the A.O. The presence of the persons working as directors of the assessee company when the alleged share application money was raised was of immense importance to understand the modus-operandi of the business and to establish the genuineness of the transactions and creditworthiness of the subscribing companies. The assessee, therefore, failed to prove the identity and capacity of the so-called share-holders along with the genuineness of the transactions. This being the issues and also considering the pernicious practice of conversion of unaccounted money through masquerade of investment in the share capital of a company, the A.O. therefore, was within his jurisdiction in treating such share capital and Assessment Year: 2008-09 M/s. Skipper Plastics Ltd. share premium as unaccounted cash credit of the assessee company and adding the same u/s 68 of the Act. The addition of Rs. 36,43,50,000/- is therefore, confirmed.”
Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal.
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 raised a preliminary issue regarding lack of proper and sufficient opportunity given by the A.O. to the assessee as well as the non-consideration by him of the relevant documentary evidence furnished by the concerned 35 share-holder applicants in response to the notices under section 133(6). As pointed out by him, a specific direction was given by the Ld. CIT to the A.O. in the order passed under section 263 to examine the genuineness and source of share capital, not on a test check-basis, but in respect of each and every share-holder by conducting independent inquiry not through the assessee. The A.O. was also directed by the Ld. CIT that the bank account for the entire period should be examined in the course of verification to find out the money trail of the share capital. He has contended that although notices under section 133(6) were issued by the A.O. to all the 35 share applicants on 14.02.2014, the relevant documentary evidence submitted by them in response to the said notices in the form of statement of source of fund, copies of relevant bank statements, copies of allotment letters, copies of IT returns and audited balance sheet etc. was not taken into consideration by the A.O. while deciding the issue under section 68 and this position Assessment Year: 2008-09 M/s. Skipper Plastics Ltd. clearly evident from the assessment order is not disputed even by the learned DR.
Moreover, a perusal of the assessment order passed by the Assessing Officer also shows that the reason for non-compliance to the notices issued under section 131 on the part of Mr. M.K. Kedia and Mrs. Sarita Devi Kedia, the then two directors of the assessee company was explained by them as due to change in address and a further opportunity was also sought by them in writing to comply with the requirements of the A.O. It appears from the order of the A.O. that he did not give such opportunity to Mr. M.K. Kedia and Mrs. Sarita Devi Kedia in spite of the fact that their examination was very crucial to decide the issue and a specific direction accordingly was given by the Ld. CIT in the order under section 263 to the A.O. to examine them on oath. Keeping in view all these facts and circumstances of the case, we find merit in the contention of the learned counsel for the assessee that the assessment under section 147/143(3)/263/143(3) was made by the A.O. without giving proper and sufficient opportunity of being heard to the assessee and without considering the relevant documentary evidence filed by the concerned share applicants in response to notices under section 133(6). We, therefore, consider it fair and reasonable and in the interest of justice to set aside the orders of the authorities below and restore the matter to the file of the A.O. with the direction to complete the assessment afresh as per the directions of the Ld. CIT given under section 263 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 the Assessment Year: 2008-09 M/s. Skipper Plastics Ltd. documentary evidence which the assessee may choose to file in support of his case on the issue.
In the result, the appeal of the assessee is treated as allowed for statistical purpose. Order Pronounced in the Open Court on 21st March, 2018.