UNISYS SOFTWARES AND HOLDING IND. LTD.,KOLKATA vs. DCIT, CIR. 8(2), KOLKATA

Present for: Appellant by : None Respondent by : Subhendu Datta, CIT-DR Date of Hearing : 02.07.2024 Date of Pronouncement : 27.09.2024 O R D E R

PER RAKESH MISHRA, ACCOUNTANT MEMBER:

“1 For that the Ld. CIT(A), Kolkata-27 has erred in law as well as on facts of the case by passing order u/s 250(6) of the LT. Act, 1961 dated 17/11/2023 dismissing the appeal filed by the appellant and thereby confirming the addition of ₹30,00,00,000/- made by the Assessing Officer u/s 68 of the IT. Act, 1961 on the plea of non-compliance of fixation notice which is incorrect, baseless & false.

2. For that the Ld. CIT(A), Kolkata-27 has erred in law as well as on facts of the case by passing order u/s 250(6) of the IT. Act, 1961 on 17/11/2023 while adjournment for compliance of fixation notice was allowed up to 24/11/2023 and thereby Ld. CIT(A) has deliberately misused his power without objective and lawful application of mind and by ignoring natural justice to your appellant. Also this is a glaring example of whimsicality by the Ld. CIT(A), Kolkata-27. Your valuable and lawful verdict only can give justice to your appellant. Photocopy of adjournment letter is enclosed herewith for your kind perusal & record.

3. For that the observations and contentions of the Ld. CIT(A) in dismissing the appeal filed by your appellant on the grounds which are not correct.

4. For that the appellant craves leave to adduce, modify and/or alter the grounds at or before hearing.”

3. The facts of the case are that the notice u/s 148 of the Act was issued and duly served upon the assessee company on 29.03.2018 after obtaining necessary approval from the prescribed authority. The assessee filed its return of income u/s 148 of the Act on 21.04.2018 declaring its income at Rs. 1,13,31,539/-. The assessment was completed on 30/11/2018 at the total income of Rs.31,13,31,539/- and an addition of Rs. 30,00,00,000/- was made on account of share capital and share premium received. Aggrieved with the assessment order the assessee filed an appeal before the Ld. CIT(A) who dismissed the appeal vide order dated 17.11.2023. Aggrieved with the order of the Ld. CIT(A), the assessee has filed this appeal before the Tribunal.

4. On the date of hearing on 02.07.2024, none appeared on behalf of the assessee. The assessee had filed a letter on 17.04.2024 which is as under:

We request your good self to treat our Paper Book already submitted before your honour on 15/04/2024 as our representation/appearance before your honour and also request your goodself to rely on our written submissions. Our date fixed on 17/04/2024 (copy enclosed). And for this act of kindness, we shall remain ever grateful to you. 5. On 17.04.2024, the Hon’ble Bench, vide order sheet dated 17.04.2024 directed as under:

Assessee represented by: None Department represented by: Subhendu Datta, CIT -DR The present appeal is directed at the instance of the assessee against the order of ld. CIT (A) dated 17.02.2023 passed for AY 2011-12. The assessee has raised four grounds of appeal out of which ground nos. 3 & 4 are general grounds which do not call for recording of any specific finding. Ground nos. 1 & 2 are inter -connected with each other, in brief the grievance of the assessee is that ld. CIT (A) has erred in confirming the addition of Rs.

30. Crore without deciding the appeal on merit as contemplated in Section 250 (6) of the Act. In response to the notice of hearing no one has come present on behalf of the assessee. A letter is being sent dated 16.02.2024 contending therein that written submission and paperbook was already filed before the Tribunal. A paperbook running into 299 pages has been filed by the assessee which contains first 60 pages of written submission. With the assistance of ld. CIT D/R, we have gone through the record carefully. It is an admitted fact that order of ld. CIT (A) is an ex -parte order where assessee did not submit any papers. Before ld. AO, the papers as certified in the paperbooks appears to have not been filed. Therefore, we have doubts about the correctness of the certificate appended on the paperbook. In view of the above situation, we direct ld. CIT D/R to get this paperbook verified from the Assessing Officer and obtain a certificate whether these papers were filed before the Assessing Officer or not. Ld. CIT D/R will call for the record from the ld. CIT(A) office. We also simultaneously direct Sh. Budheswar Mistry, alleged director of the assessee company who has certified Form No. 36 of the Appeal Form as well as grounds of appeal, and also certified the paperbook to be present in the Court on the next date physically. Copy of this hearing is adjourned to 2nd July, 2024. Copy of this order sheet be supplied to both the parties for compliance.

6. On 02/07/2024, the Ld.AR informed the bench that the DCIT, Central Circle to whom the case was transferred subsequently was requested to do the needful but he informed that all record except for those of the AY 2011-12 were available. Since none appeared on behalf of the assessee, the case was heard with the assistance of the Ld. CIT(DR).

“2.1. It has been reported by the DCIT, Central Circle - 3(4), Mumbai that the trading in the shares of M/s Unisys Software and Holding Industries Ltd. were earlier suspended and the suspension was revoked on 19.01.2010. After the suspension was revoked M/s Unisys Software and Holding Industries Ltd. raised Rs. 30,00,00,000/- by way of preferential allotment of 30,00,000 shares to preferential allottees on 28.03.2011. These shares were allotted at a value of Rs. 100/- per share (Rs. 10/- F.V. and Premium Rs. 90/-). These 30,00,000 shares were listed on the stock exchange on 02.02.2012. Out of these 30,00,000, 20,00,000 shares were locked in till 23.03.2012 and 10,00,000 shares were locked in till 27.03.2014 as per Securities Exchanged Board of India (Issue o f Capital and Disclosure Requirements) Regulations, 2009. The price of the shares saw a phenomenal rise immediately after the preferential shares were allotted. The preferential shares were allotted on 28.03.2011. After the issue of preferential allotment the shares saw some ups and downs and just before the period of one year lock was to get over, the price of the shares saw a huge jump. The Price of the shares as on 09.11.2011 was Rs. 64.10/-. Thereafter the price started rising and reached to a high value of Rs. 223/- as on 19.03.2012. This is an increase of 250% which has been achieved in only a span of 4 months time. Thereafter the price of shares kept on increasing further and reached a high of Rs. 272/- as on 12.11.2012. 2.2. During this period of phenomenal price rise, no corporate announcement has been made by M/s Unisys Software and Holding Industries Ltd. regarding any major investment or acquisition. The financials of M/s Unisys Software and Holding Industries Ltd. also show that during this period there was no major increase in the top line of the company and the reported profits were also not commensurate with the price rise. The price rise in the shares of M/s Unisys Software and Holding Industries Ltd. has been achieved by manipulation and rigging through controlled trade on miniscule volume. 2.3. The entities which have purchased the shares of M/s Unisys Software and Holding Industries Ltd. after the price rise were identified. The information available with the department was collated and further enquiries were conducted on some of the entiti es which had purchased the shares of M/s Unisys Software and Holding Industries Ltd. From the enquiries done so far it has been found that the entities which have purchased the shares of Unisys Software and Holding Industries Ltd. are bogus/paper entities. 2.4. On the basis of above observation, it is evident that M/s Unisys Software and Holding Industries Ltd. had brought back its unaccounted income of Rs. 30,00,00,000/- in the A.Y. 2011-12 by way of issuing share capital and share premium. 2.5. In view of above the assessee was asked to explain why the said amount should not be treated as unexplained cash credit and added to the income u/s 68 of the Act. 2.6. In response, the assessee appeared and made submission which is place in the record. The submission of the assessee has been examined, however, the same is not acceptable as explained under: 2.7. During the course of assessment proceedings, it was seen from the books of accounts of the assessee that the assessee had received share capital of an amount of Rs.3,00,00,000/- along with security premium at Rs. 27,00,00,000/- during the year under consideration. This means that the number of shares 30,00,000 have been issued at a face value of Rs.10/- and at a premium of Rs.90/-. The assessee has received share application money totaling to Rs.30,00,00,000/ - from the following seven parties namely 1. Madhuvan Datamatics Traders Pvt. Ltd.

4. Sahayta Financial Consultancy Serive 5. Neha Cassettees Pvt. Ltd.

7. Brijdham Dealcom (P) Ltd. 2.8. During the course of assessment proceedings, to verify the identity, creditworthiness and genuineness of the above mentioned parties from whom share premium was received, statutory notices u/s.133(6) dated 30.10.2018 were issued to the above mentioned seven parties. However, the same were return back with postal remark 'not known', 'moved' & 'not found' etc. Inspector of the department was deputed for verification of existence of the office addresses of the above mentioned parties but could not found above mentioned companies in the above address. Further, from persons residing in the same locality, it has been gathered that they have never heard the name of this company. Hence, the identity of these companies based in Kolkata could not be established. Hence, the assessee was asked to explain why the share application along with share premium received from these parties should not be treated as bogus u/s.68 in absence of their identity, creditworthiness and genuineness. The subscribers who allegedly invested such huge sum of money in form of share capital do not vanish into oblivion suddenly and became non-traceable and nonresponsive. Surprisingly two of the entities (1) Sahayta Financial Consultancy Serive (ii) Brijdham Dealcom (P) Ltd. still exist as share holders but no response could be evoked from them also. However, the assessee is unable to explain anything in this regard. 2.9. Further, it is imperative to discuss the balance sheet of the assessee company as well as facts and circumstances in respect of share capital had been introduced. Firstly, it is relevant to verify whether the assessee company could have attracted a pr emium of Rs.90/- when it is very difficult for a listed company having an outstanding credit ratings to receive a premium of Rs.90/ -. In the case of assessee, it had raised Rs.30,00,00,000/- in its books in the F.Y. 2010-11 by way of preference shares allotment whereas total assets as per balance sheet as on 31.03.2010 was shown at Rs. 24,29,47,860/-. Further the trading in the shares of the assessee company were earlier suspended and the suspension was revoked on 19.01.2010. After suspension was revoked, the assessee company raised Rs. 30,00,00,000/- by way of preferential allotment of Rs. 30,00,000 shares to preferential allottees. Out of these 30,00,000 shares, 20,00,000 shares were locked in till 27.03.2012 and 10,00,000 shares were locked in till 27.03.2014 as per Securities and Exchange Board of India Regulations, 2009. 2.10. On the basis of the above mentioned discussion and considering the fact that these persons from which the funds were received cannot be found at their respective address. Hence, the funds received from them are also considered to be bogus and the genuineness of transaction cannot be verified and the creditworthiness is also susceptible as the assessee has not furnished the details of income of those parties in support of its contention that these companies are genuine. Moreover, without the identity of persons, the genuineness of transaction and the creditworthiness cannot be possibly proved. There are various case laws which have held that in the absence of credible proof regarding the identity, creditworthiness and genuineness of loans or share application taken, the amounts received have to be treated within the purview of Section 68 of the Act. Few of the case laws are discussed hereunder: 7.1 The Ld. AO has relied upon the following case laws: i. Bisakha Sales (P.) Ltd. vs. Commissioner of Income tax (Kol) (2014) 52 taxmann.com 305 (Kolkata Trib.) ii. Commissioner of Income tax- IV, New Delhi vs. Focus Exports (P.) Ltd. [2014] 51 taxmann.com 46 (Delhi) iii. Naresh K. Pahuja vs. Income Tax Appellate Tribunal [2015] 54 taxmann.com 258 (Bombay) iv. Commissioner of Income Tax vs. Empire Builtech (P.) Ltd. [2014] 366 ITR 110 (Delhi) v. A. Govinda Rajulu Mudaliar Vs. CIT, (1958) 34 ITR 807 (SC) vi. Onassis Axles (P.) Ltd. Vs. Commissioner of Income Tax [2014] 44 taxmann.com 408 (Delhi) vii. Tarika Property Invest (P) Ltd. Vs. Commissioner of Income Tax [2014] 51 taxmann.com 387 (SC) viii. CIT Vs. Precision Finance (P) Ltd. [1994] 208 ITR 465 (Cal) Accordingly, the Ld. AO concluded that the identity, creditworthiness and genuineness of the amount receipt as share application totalling to Rs. 30,00,00,000/- had not been proved by the assessee and the sum of Rs. 30,00,00,000/- was added u/s 68 of the Act.

5. Addition u/s 68 on account of unexplained cash credit: For that the Ld. Assessing Officer has erred in Law as well as on facts of the case in disallowing and adding back an amount of Rs. 30,00,00,000/- to the income of the assessee u/s 68 of the IT Act 1961 on the grounds of unexplained cash credit which is not correct. For that the observation and contention of the L d. Assessing Officer in completing the assessment by making arbitrary disallowance and addition under the head unexplained cash credit is not correct. 2.General: For that the appellant craves leave to adduce, modify and or alter the grounds at or before hearing.

. Hence, in view of the above facts and circumstances, it is held that the appellant had nothing more to submit except for raising the grounds. 4.1 The Hon'ble ITAT in for the A.Y. 2002-03 in the case of M/s Chhabra Land and Housing Ltd. after following the decision of Hon'ble Supreme Court in the case of B.N. Bhattachargee, 118 ITR 461 (SC) held that the appeal does not mean merely filing of the appeal but effectively pursuing it. Keeping in view of the aforesaid factual position, the appeal filed by the appellant is, therefore, decided on merits.

5. In the instance of the case the appellant failed to make any submissions in support of grounds of appeal

, this gives rise to an undisputable conclusion that the assessee has got nothing more to say in this regard. I have gone through the record before me and based on the record I have decided to adjudicate the issue on the merits of the case. In the instant case the AO has rightly assessed an income of Rs.31,13,31,539/-. Since the appellant failed to substantiate appellant's claim and the aforementioned addition made by the Assessing Officer of Rs. 30,00,00,000/ - is hereby confirmed.

6. All the grounds of appeal are dismissed.

7. In the result, the appeal is dismissed.

9. In respect of Ground No. 2 of the appeal, the assessee has submitted that the Ld. CIT(A) passed the order under section 250(6) of the Act on 17.11.2023 while adjournment for compliance of fixation notice was sought up to 24.11.2023. Photo copy of the adjournment letter has been enclosed with the appeal memo filed before us in which an application dated 08.11.2023 seeking adjournment of at least 15 days on account of serious illness and absence of the person who was looking after the income tax matters and the adjournment details of the hearing notice under section 250 of the Act issued on 30.10.2023 with the response due date 09.11.2023 have been filed. The adjournment request dated 08.11.2023 seeking adjournment upto 24.11.2023 with the status/action as ‘open’ has also been enclosed with the appeal memo. These contents have not been controverted by the Ld. DR. thereby implying that the order of the Ld. CIT(A) dated 09.11.2023 was passed disregarding the adjournment application of the assessee. Further, the Ld. CIT(A) has not discussed the merits of the case. The provisions of section 250(6) are reproduced as under: “250(6) – The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”

10. In this respect, we note that Section 250(6) casts a duty on the Ld. CIT(A) to pass an order in appeal which should state the points for determination and a decision as well as the reason for arriving at such decision. In the present case before us compliance has not been made by the Ld. CIT(A) by not mentioning the reasons after examining the assessment records while disposing of the appeal. We also note that while the Ld. CIT(A) has discussed non-compliance on the part of the assessee as the notices sent were not complied with however the request for adjournment made was not decided and the appeal order was passed in which the Ld. CIT(A) upheld the view of the AO and has not passed a reasoned order for arriving at the decision, as is required u/s 250(6) of the Act. We further note that in Ajji Basha Vs. CIT (2019) 111 taxmann.com 348 (Madras) it has been held that a speaking order on merits with reasons and findings is to be passed by Commissioner (Appeals) on basis of ground raised in assessee's appeal; he cannot dispose assessee's appeal merely by holding that Assessing Officer's order is a self-speaking order which requires no interference. The relevant extract from the order is as under: 6. … The first respondent is the appellate authority. Needless to state that the Appellate Authority is also a fact finding authority and therefore, he has to consider the order of assessment on the grounds raised in the appeal and thereafter, pass a speaking order on merits and in accordance with law by giving his own reasons and findings as to whether the order of assessment can be sustained or not. In other words, the order passed by the Appellate Authority should explicitly exhibit his application of mind to the facts and circumstances and the objections raised in the grounds of appeal, also by expressing his reasons and findings in support of his conclusion.

7. In this case, the Appellate Authority, after extracting the order of the Assessing Officer in full, has not given any other reason or finding to dismiss the appeal except by stating that he is of the considered view that the Assessing Officer's order is a self speaking order and does not call for any interference. In my considered view, such single line finding of the Appellate Authority, cannot be sustained as a proper exercise of the Appellate Authority, while disposing the appeal. Therefore, it is apparent that the order impugned in this writ petition is an outcome of total non-application of mind. Consequently, the impugned order cannot be sustained. It is further contended that before passing the order, the petitioner was not heard.

10.1 It has also been held in the case of Commissioner of Income-tax (Central) Nagpur v. Premkumar Arjundas Luthra (HUF) [2016] 69 taxmann.com 407 (Bombay) that the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act. The relevant extract is as under:

7. An appeal is filed with the CIT(A) from appealable orders listed in Section 246A of the Act. We find that the procedure in appeal before the CIT(A) and the powers of the CIT(A) are governed by Sections 250 and 251 of the Act respectively. The relevant provisions for consideration are as under:— 'Procedure in appeal 250 (1) . . . . . . . . . . . . . (2) . . . . . . . . . . . . . . . . . (3) . . . . . . . . . . . . . . . . . . (4) The Commissioner (Appeals) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result of the same to the Commissioner (Appeals). (5) . . . . . . . . . . . . . . . . . . (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. (6A) . . . . . . . . . . . . . . . . . . (7) . . . . . . . . . . . . . . . . . . Powers of the Commissioner (Appeals) "Section 251(1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers — (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment. (aa) . . . . . . . . . . . . . . . . . . (b) in an appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty." (c) . . . . . . . . . . . . . . . . . . (2) The Commissioner (Appeals) shall not enhance an assessment or a penalty or reduce the amount of refund unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction. Explanation. - In disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the Commissioner (Appeals) by the appellant.' 8. From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) is co-terminus with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non-prosecution as is evident from the provisions of the Act.