S.M. Surana, Advocate for the Petitioner. Devi Saran Singh for the Respondent.

This appeal filed by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals) – 10, Kolkata, (hereinafter the “ld.CIT(A)”), passed u/s. 250 (of Income Tax Act, 1961) (the ‘Act’), dt. 04/12/2019 for the Assessment Year 2012-13.

2. The assessee is a company and is in the business of share investment and finance. It filed its return of income on 04/12/2012, for the Assessment Year 2012-13, declaring total income of Rs.84,115/-. The Assessing Officer completed best judgment assessment u/s 144 (of Income Tax Act, 1961) and determined the total income of the company at Rs.10,00,30,420/- interalia making addition of Rs.9,90,00,000/- u/s 68 (of Income Tax Act, 1961) being share capital received along with share premium and disallowance of Rs.9,46,300/- u/s 14A (of Income Tax Act, 1961). The assessee carried the matter in appeal without success.

3. Further aggrieved the assessee is in appeal before us.

4. After hearing rival contentions, we find that the Assessing Officer has passed the order ex-parte on the ground that the director of the assessee company as well as the principle officer of the share holder companies failed to comply with the notices to them u/s 131 (of Income Tax Act, 1961). The assessee submits that all the parties responded to notices issued u/s 133(6) (of Income Tax Act, 1961) and information was filed before the Assessing Officer by the share applicant companies but the Assessing Officer did not consider all these evidences and referred to them as submission of voluminous paper work which of no use assessee company submits that sufficient Officer as well as the ld. CIT(A). It requested the Assessing Officer for fresh adjudication, in accordance with law on the ground of violations of principles of nat.

5. The ld. D/R, relied on the order of the Assessing Officer as well as the ld. CIT(A) and submitted that these orders be upheld. On a query from the Bench on the issue of violations of principles of natural justice, the ld. CIT D/R, could no ld. CIT(A) had called for a remand report to Assessing Officer as violated the principles of natural justice. We find that the ld. CIT(A) has stated at para 7 page 15 of his order that the

only. This was held as non- Officer as well as the ld. CIT(A)

the contentions of the assessee an company. This is a case of violation of principles of natural justice. The Kolkata Bench of the ITAT has been consistently in all such cases remanding the matter back to the file of the Assessing Officer for fresh adjudicat

6. In the case of Sriram Tie Up Pvt. Ltd vs. ITO in I.T.A. No. 1104/Kol/2016,10 order dt. March 21, 2018, at para 6 and 7 held as follows:

“6. In the case of M/s. Suk 291/Kol/2016 dated 15.12.2017) cited by the learned counsel for the assessee, a similar view has been taken by the Co similar issue relating to the addition made under section 6 (of Income Tax Act, 1961) capital contribution by treating the same as unexplained cash credits is restored back by the Tribunal to the file of the A.O. in almost similar situation after recording its observations / findings as under:

We note that the AO pursuant to the order of Ld. CIT had taken note of the directions of the Ld. CIT and issued notice u/s. 142(1) (of Income Tax Act, 1961) dated 16.08.2013 and has acknowledged that the assessee had furnished the copy of final account, I. T. Acknowledgement, bank share application money from the share applicants. Thereafter, the AO makes certain inferences based on the list of shareholders and taking note of the bank statement furnished by the assessee.

M/s. Sthirlakshmi Mercantile Pvt. Ltd but the Assessing Officer did not consider all these evidences and referred to them as submission of voluminous paper work which of no use that sufficient opportunity was not granted by the ficer as well as the ld. CIT(A). It requested that the issue may be restored to the file of the Assessing Officer for fresh adjudication, in accordance with law on the ground of natural justice.

The ld. D/R, relied on the order of the Assessing Officer as well as the ld. CIT(A) and submitted that these orders be upheld. On a query from the Bench on the issue of violations of principles of natural justice, the ld. CIT D/R, could not demonstrate that the ld. CIT(A) had called for a remand report to meet the objection of the assessee that the Assessing Officer as violated the principles of natural justice. We find that the ld. CIT(A) has stated at para 7 page 15 of his order that the assessee has made legal submissions -compliance by the assessee company before the Assessing

Officer as well as the ld. CIT(A). The entire order has discussed many case the contentions of the assessee and the evidence placed on record by the assessee company. This is a case of violation of principles of natural justice. The Kolkata Bench of the ITAT has been consistently in all such cases remanding the matter back to the file of the Assessing Officer for fresh adjudication in accordance with law.

In the case of M/s. Sukanya Merchandise Pvt. Ltd. vs ITO (ITA 291/Kol/2016 dated 15.12.2017) cited by the learned counsel for the assessee, a similar view has been taken by the Co-ordinate Bench of this Tribunal and the similar issue relating to the addition made under section 68 (of Income Tax Act, 1961) on account of share capital contribution by treating the same as unexplained cash credits is restored back by the Tribunal to the file of the A.O. in almost similar situation after recording its observations / findings as under:

We note that the AO pursuant to the order of Ld. CIT had taken note of the directions of the Ld. CIT and issued notice u/s. 142(1) (of Income Tax Act, 1961) dated 16.08.2013 and has acknowledged that the assessee had furnished the copy of final account, I. T. Acknowledgement, bank statement for the relevant period evidencing the receipt of share application money from the share applicants. Thereafter, the AO makes certain inferences based on the list of shareholders and taking note of the bank statement furnished by the assessee. We note that after the initial notice dated but the Assessing Officer did not consider all these evidences and referred to them as submission of voluminous paper work which of no use. The opportunity was not granted by the Assessing that the issue may be restored to the file of the Assessing Officer for fresh adjudication, in accordance with law on the ground of The ld. D/R, relied on the order of the Assessing Officer as well as the ld. CIT(A) and submitted that these orders be upheld. On a query from the Bench on the issue of t demonstrate that the the objection of the assessee that the Assessing Officer as violated the principles of natural justice. We find that the ld. CIT(A) assessee has made legal submissions compliance by the assessee company before the Assessing The entire order has discussed many case-law but not placed on record by the assessee company. This is a case of violation of principles of natural justice. The Kolkata Bench of the ITAT has been consistently in all such cases remanding the matter back to the file of 291/Kol/2016 dated 15.12.2017) cited by the learned counsel for the assessee, aordinate Bench of this Tribunal and the 8 on account of share capital contribution by treating the same as unexplained cash credits is restored back by the Tribunal to the file of the A.O. in almost similar situation after We note that the AO pursuant to the order of Ld. CIT had taken note of the directions of the Ld. CIT and issued notice u/s. 142(1) (of Income Tax Act, 1961) dated 16.08.2013 and has acknowledged that the assessee had furnished the copy of final account, I. T.statement for the relevant period evidencing the receipt of share application money from the share applicants. Thereafter, the AO makes certain inferences based on the list of shareholders and taking note of the bank We note that after the initial notice dated 16.08.2013, thereafter the AO had issued the notice on 26.02.2014 which has been reproduced at page 3 of the reassessment order, wherein AO required the directors of the assessee company to be present before him according to the Ld. AR, the assessee received the notice only on 07.03.2014 and thereafter, the assessee requested the AO to provide another opportunity of hearing vide its letter dated 20.03.2014. Thereafter, the AO fixed the da 12.03.2014 vide notice dated 10.03.2014. So, according to the assessee company since the directors were not in station till 23.03.2014, the Ld. AR had requested for adjournment till that time. Though the AO has stated that he has issued on 24.03.2014 to the assessee company to produce the directors of the company before him on 26.03.2014, the assessee company contended that it has not received the said summon and, therefore, could not make the personal appearance. The AO has drawn adverse conclusion basically because of non of the assessee company and that of the shareholder companies. We note that initially the AO started the enquiry on 16.08.2013 which was complied by the assessee by submitting document Thereafter, the enquiry was started only at the fag end of February 2014 and the assessee company had informed the AO that their directors were out of station till 23.03.2014. In the light of the aforesaid fact assessee did not get fair opportunity to present the evidences before the AO so, there was a lack of opportunity as aforesaid, therefore, it has to go back to AO.

8. We also note that Ld. Cit while setting aside the order passed u/s. 147 (of Income Tax Act, 1961)/143(3) of the Act, the Ld. CIT gave certain guidelines to follow for conducting deep investigation. We also note that similarly placed assessees had challenged the exercise of revisional jurisdiction u/s. 263 (of Income Tax Act, 1961) of the Ac Tribunal in those cases one of it of Subha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in ITA No. 1104/Kol/2014 dated 30.07.2015, wherein the Tribunal was pleased to uphold the order passed by the Ld. CIT passed u/s. 263 (of Income Tax Act, 1961), which we learn to been confirmed by the Hon’ble jurisdictional High Court and the SLP preferred against the decision of the Hon’ble jurisdictional High Court has been dismissed by the Hon’ble Supreme Court. Therefore, similar order of the Ld. CIT passed u/s. 263 (of Income Tax Act, 1961) has been upheld. We note that the AO while giving effect to the CIT’s 263 order has noted that the assessee company has in fact furnished the documents sought by him to his notice u/s. 142(1) (of Income Tax Act, 1961). However, the AO took the adverse view against the assessee on the plea that the directors of the assessee company and share subscribing companies had not appeared before him on 26.03.2014 and t after taking note that none appeared on 26.03.2014 concluded on the same day 26.03.2014 that entire amount premium amounting to Rs.8,06,00,000/ added to the income of the assessee. We also note that the Ld. CIT after looking into the pernicious practice of converting black mon guidelines to AO as to how the investigation should be conducted to find out the source of source. Since similar order of the Ld. CIT passed u/s. 263 (of Income Tax Act, 1961) has been upheld by the Tribunal as well as by the Hon’ble Ca the SLP has been dismissed by the Hon’ble Supreme Court, similar order of the Ld. CIT has to be given effect to as directed by the Ld. CIT. We take note that the Ld. CIT with his experience and wisdom has given certain guideli black money menace should have been properly enquired into as directed by him.

The AO ought to have followed the investigating guidelines and method as directed 16.08.2013, thereafter the AO had issued the notice on 26.02.2014 which has been reproduced at page 3 of the reassessment order, wherein AO required the directors of the assessee company to be present before him on 06.03.2014. However, according to the Ld. AR, the assessee received the notice only on 07.03.2014 and thereafter, the assessee requested the AO to provide another opportunity of hearing vide its letter dated 20.03.2014. Thereafter, the AO fixed the date of hearing on 12.03.2014 vide notice dated 10.03.2014. So, according to the assessee company since the directors were not in station till 23.03.2014, the Ld. AR had requested for adjournment till that time. Though the AO has stated that he has issued on 24.03.2014 to the assessee company to produce the directors of the company before him on 26.03.2014, the assessee company contended that it has not received the said summon and, therefore, could not make the personal appearance. The AO adverse conclusion basically because of non-appearance of the directors of the assessee company and that of the shareholder companies. We note that initially the AO started the enquiry on 16.08.2013 which was complied by the assessee by submitting documents which has been acknowledged by the AO.

Thereafter, the enquiry was started only at the fag end of February 2014 and the assessee company had informed the AO that their directors were out of station till 23.03.2014. In the light of the aforesaid facts, we are of the opinion that the assessee did not get fair opportunity to present the evidences before the AO so, there was a lack of opportunity as aforesaid, therefore, it has to go back to AO. We also note that Ld. Cit while setting aside the order of the AO which was passed u/s. 147 (of Income Tax Act, 1961)/143(3) of the Act, the Ld. CIT gave certain guidelines to follow for conducting deep investigation. We also note that similarly placed assessees had challenged the exercise of revisional jurisdiction u/s. 263 (of Income Tax Act, 1961) of the Tribunal in those cases one of it of Subha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in ITA No. 1104/Kol/2014 dated 30.07.2015, wherein the Tribunal was pleased to uphold the order passed by the Ld. CIT passed u/s. 263 (of Income Tax Act, 1961), which we learn to been confirmed by the Hon’ble jurisdictional High Court and the SLP preferred against the decision of the Hon’ble jurisdictional High Court has been dismissed by the Hon’ble Supreme Court. Therefore, similar order of the Ld. CIT passed u/s. 263 (of Income Tax Act, 1961) has been upheld. We note that the AO while giving effect to the CIT’s 263 order has noted that the assessee company has in fact furnished the documents sought by him to his notice u/s. 142(1) (of Income Tax Act, 1961). However, the AO took the adverse the assessee on the plea that the directors of the assessee company and share subscribing companies had not appeared before him on 26.03.2014 and after taking note that none appeared on 26.03.2014 concluded on the same day 26.03.2014 that entire amount of share application money received along with premium amounting to Rs.8,06,00,000/- which has remained unexplained and added to the income of the assessee. We also note that the Ld. CIT after looking into the pernicious practice of converting black money into white money has given the guidelines to AO as to how the investigation should be conducted to find out the source of source. Since similar order of the Ld. CIT passed u/s. 263 (of Income Tax Act, 1961) has been upheld by the Tribunal as well as by the Hon’ble Calcutta High Court as well as the SLP has been dismissed by the Hon’ble Supreme Court, similar order of the Ld. CIT has to be given effect to as directed by the Ld. CIT. We take note that the Ld. CIT with his experience and wisdom has given certain guidelines in the backdrop of black money menace should have been properly enquired into as directed by him.

The AO ought to have followed the investigating guidelines and method as directed by him to unearth the facts to determine whether the identity, genuinen creditworthiness of the share subscribers. We note that the Hon’ble Supreme Court in three judges bench in the case of Tin Box, (supra), has held that since there was lack of opportunity to the assessee at the assessment stage itself, the assessme needs to be done afresh and thereby reversed the Hon’ble High Court, Tribunal and CIT(A)’s orders and remanded the matter back to AO for fresh assessment. So, since there was lack of opportunity as aforestated it has to go back to AO. We also note that the Hon’ble Delhi High Court in the case of CIT Vs. Jansampark Advertising & Marketing Pvt. Ltd. in ITA No. 525/2014 dated 11.03.2015 wherein after noticing inadequate enquiry by authorities below have held as under:

“41. We are inclined to agree wit the extent of their conclusion that the assessee herein had come up with some proof of identity of some of the entries in question. But, from this inference, or form the fact that the transactions were the following that satisfaction as to the creditworthiness of the parties or the genuineness of the transactions in question would also have been established.

42. The AO here may have failed to discharge his obli inquiry to take the matter to logical conclusion. But CIT(Appeals), having noticed want of proper inquiry, could not have closed the chapter simply by allowing the appeal and deleting the additions made. It was also the obligatio appellate authority, as indeed of ITAT, to have ensured that effective inquiry was carried out, particularly in the fact of the allegations of the Revenue that the account statements reveal uniform pattern of cash deposits of equal amounts respective accounts preceding the transactions in question. This necessitated a detailed scrutiny of the material submitted by the assessee in response to the notice under Section148 (of Income Tax Act, 1961) issued by the AO, as also the material submitted at the stage of appeals, if deemed proper by way of making or causing to be made a 'further inquiry’ in exercise of the power under Section 250(4) (of Income Tax Act, 1961). His approach not having been adopted, the impugned order of ITAT, and consequently that of CIT(Appeals), cannot be approved or upheld."

In view of the aforesaid order and in the light of the Hon’ble Supreme Court’s decision in Tin Box Company (supra) and taking into consideration the fact the order of the Ld. CIT passed u/s. 263 (of Income Tax Act, 1961) in similar cases being upheld up to the level of Apex Court, and taking note of Hon’ble Delhi High Court’s order in Jansampark Advertising & Marketing Pvt. Ltd. (supra), we set aside the order of the Ld. CIT(A) and remand the matter back to the file of AO for de novo assessment and to decide the matter in accordance to law after giving opportunity of being heard to the assessee.

7. We, therefore, consider it fair and proper and in the interest of justice to set aside the orders of the authorities below on the issue in dispute and restore the matter to the file of the A.O. to decide the same afresh 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 other documentary evidence which on the issue.” by him to unearth the facts to determine whether the identity, genuinen creditworthiness of the share subscribers. We note that the Hon’ble Supreme Court in three judges bench in the case of Tin Box, (supra), has held that since there was lack of opportunity to the assessee at the assessment stage itself, the assessme needs to be done afresh and thereby reversed the Hon’ble High Court, Tribunal and CIT(A)’s orders and remanded the matter back to AO for fresh assessment. So, since there was lack of opportunity as aforestated it has to go back to AO. We also the Hon’ble Delhi High Court in the case of CIT Vs. Jansampark Advertising & Marketing Pvt. Ltd. in ITA No. 525/2014 dated 11.03.2015 wherein after noticing inadequate enquiry by authorities below have held as under:

7. The Kolkata Bench of the ITAT has passed similar order same issue of additions made u/s 68 (of Income Tax Act, 1961) of share capital and the file of the AO for fresh adjudication examine the evidence already on record as well as other documentary evidences which the assessee may file before him and adjudicate the issue in accordance with law.

8. Keeping in view the totality of the facts and circumstances orders of the Co-ordinate Bench of the Tribunal in similar matters, we set aside this to the file of the AO for assessee adequate opportunity of being heard.

9. In the result, appeal of the assessee Kolkata, the

Sd/-

[Sanjay Garg]

Judicial Member

Dated : 05.02.2021