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Income Tax Appellate Tribunal, BENCH “SMC”, KOLKATA
Before: Hon’ble Shri N.V.Vasudevan, JM]
This is an appeal by the assessee against the order dated 19.03.2013 of CIT(A)-VIII, Kolkata relating to A.Y.2002-03.
Grounds of appeal
raised by the assessee read as follows :- “1. That the order of the Learned Commissioner of Income tax (Appeals)-VIII, Kolkata confirming the additions made by the Learned Assessing Officer u/s 68 of the Income Tax Act, 1961 of Rs.3,50,000/- received by the appellant company on account of ‘Share Application Money’ is contrary to the law and facts of the case.
2. That the appellant craves leave to add/or amend any grounds of this appeal.”
3. The assessee is a company. During the previous year the assessee was in receipt of share application money of Rs.3,45,000/-. According to the AO notices u/s 133(6) of the Act were issued to the share applicants and was duly served on them but no reply was received from any of the persons. The AO issued a show cause notice dated 08.12.2008 pointing out to the assessee that no replies were received from the share applicants and therefore AO proposed to make addition u/s 68 of the Act. The hearing before the AO was fixed on 15.12.2008 for assessee’s compliance. The AO
2 M/s. Thamarpally Mercantiles (P)Ltd. A.Yr.2002-03 passed order on 16.12.2008 observing that none appeared on behalf of the assessee and therefore receipt of share application money was treated as unexplained and addition was made to the total income of the assessee by the AO.
Before CIT(A) the assessee pointed out that on 19.12.2008 the assessee had filed all the required details as were called for in the notices u/s 133(6) of the Act but even before the said date the AO had passed the impugned assessment order on 16.12.2008. The assessee requested the CIT(A) to consider the evidences filed before the AO. The CIT(A) was of the view that since the assessee failed to comply with the requirements of filing the required details before the AO by 15.12.2008. The order of the AO had to be upheld.
Aggrieved by the order of CIT(A) the assessee is in appeal before the Tribunal.
I have heard the rival submissions. In my view that the order of CIT(A) cannot be sustained. It is clear from the order of AO and CIT(A) and the circumstances of the case that the assessee did not have adequate opportunity of complying with the requirements as was called for by AO. The assessee had not filed the required details on 19.12.2008 just three days after passing of the assessment order by AO. In my view the CIT(A) in exercising his powers which are co-terminus with that of the AO ought to have examined the evidences filed by the assessee before confirming the order of AO treating the receipt of share application money by the assessee as unexplained. I, therefore, set aside the order of CIT(A) and remand the issue to the AO for fresh consideration. The AO will consider the evidences filed by the assessee and also allow opportunity to the assessee to produce such other evidence as is necessary to explain the receipt of share application money and thereafter decide the issue in accordance with law.
Order pronounced in the court on 09.12.2015. Sd/- [N.V.Vasudevan] Judicial Member Date: 09.12.2015. R.G.(.P.S.) Copy of the order forwarded to:
M/s. Thamarpally Mercantiles (P)Ltd., 4/1, Middleton Street, Kolkata- 700071.