TMI Blog2018 (3) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... tal contribution in terms of section 68. We find merit in the contention of the learned counsel for the assessee that the assessment under section 143(3)/147/263/143(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 the notices issued under section 133(6). 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 the assessee may choose to file in support of its case on the issue. - Decided in favour of assessee for statistical purpose. - I.T.A. No. 1104/Kol/2016 - - - Dated:- 21-3-2018 - Shri P.M. Jagtap, AM And Shri S. S. Viswanethra Ravi, JM Shri Soumitra Choudhury, Advocate appearing on behalf of the Assessee Shri P.K. Srihari, CIT appearing on behalf of the Revenue ORDER Per P.M. Jagtap, AM This appeal filed by the assessee is directed against the order of Ld. CIT(A) 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be considered by looking inyo surrounding circumstances as well as by applying the test of human probability. He also held that the onus of proving the identity and capacity of the concerned creditors / subscribers and the genuineness of the relevant transactions was on the assessee. Since the assessee, according to the A.O., had failed to discharge the said onus satisfactorily, share capital contribution amounting to ₹ 9.86 crores was treated by the A.O. as unexplained cash credits under section 68 and the same was added by him to the total income of the assessee in the assessment completed under section 143(3)/263/147/143(3) of the Act vide an order dated 31.03.2014. 3. Against the order passed by the A.O. under section 143(3)/263/147/143(3), an appeal was preferred by the assessee before the Ld. CIT(A) and since the submissions made on behalf of the assessee company before her in support of its case on the issue relating to the addition made by the A.O. under section 68 by treating the share capital contribution as unexplained cash credits was not found acceptable by the Ld. CIT(A), she proceeded to confirm the addition made by the A.O. under section 68. Aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence filed by the concerned share applicants in response to the notices issued under section 133(6). 6. 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 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) 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 16.08.2013, thereafter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Supreme Court. Therefore, similar order of the Ld. CIT passed u/s. 263 of the Act 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 the Act. 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 of share application money received along with premium amounting to ₹ 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 the Act 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, simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 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). 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 the Act 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 suff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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