M/S DEEPMALA VYAPAAR PVT. LTD.(SUCCESSOR OF HARSHMUKHI VYAPAAR PVT. LTD.,KOLKATA vs. ITO, WARD-5(4), KOLKATA

After hearing the rival contentions and perusing the condonation petition along with Affidavit, we note that the delay in filing the appeal has occurred due to prolonged illness of Mr. Gopal Kedia who was looking after the tax matter of the assessee and finally expired on 21.10.2023. Thereafter the assessee came to know only in the month of March when the Departments started for payment of outstanding demand. Thereafter steps were taken to file the appeal immediately and was filed accordingly with a delay of 186 days. We note that the delay in filing the appeal is not attributable to the assessee nor any benefit is going to be accrued in favour of the assessee with the delayed filing of appeal. In our opinion, the delay is for bonafide and genuine reasons and is hereby condoned by relying of the decision of Hon’ble Supreme Court in the case of Mst. Katiji & Ors. reported in (1987) 2 SCC 107 (SC). At the outset, the ld. Counsel for the assessee stated before the Bench that the addition was made by the AO on account of fact that summon issued u/s 131 of the Act to the Director of the subscriber companies were not complied with and therefore the necessary verification of Rs. 7,85,55,000/- raised by way of share capital/ share application money could not be done. According to AO, the identities and creditworthiness of the subscribers and genuineness of the transactions remained unverified. The Ld. Counsel therefore submitted that the assessee may be given one more opportunity to comply with the summon before the AO by restoring the appeal to the file of the AO to which the Ld. D.R did not object. Accordingly, we restore the issue back to the file of AO with the direction to decide the same de novo after issuing summon u/s 131 to all the parties and the assessee is also directed to co-operate and produce the Principal officers of all the subscriber companies for examination as undertaken before us by the counsel for the assessee.

In the result, the appeal of the assessee is allowed for statistical purposes.