TMI Blog2018 (3) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... eing heard to the assessee and without considering the relevant documentary evidence filed by the concerned share applicants in response to notices under section 133(6). Set aside the orders of the authorities below and restore the matter to the file of the A.O. with the direction to complete the assessment afresh - Decided in favour of assessee for statistical purpose. - I.T.A. No. 282/Kol/2016 - - - Dated:- 21-3-2018 - Shri P.M. Jagtap, AM And Shri S. S. Viswanethra Ravi, JM Shri A.K. Tulsiyan, FCA 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) 2, Kolkata dated 18.01.2016 whereby he confirmed the addition of ₹ 36,43,50,000/- made by the A.O. on account of share capital and share premium by treating the same as unexplained cash credit under section 68 of the Income Tax Act, 1961. 2. The assessee in the present case is a company. In the assessment originally completed under section 143(3)/147 vide an order dated 18.05.2010, its total income for the year under consideration was determined by the A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h share applicants. But there was no compliance by any of them till passing of this order. Due to their non-compliance with summons issued to them u/s 131 to appear before the undersigned, their statement could not be recorded to establish genuineness of the claim that they had raised the share capital in question in their capacity as the then directors of the company during the year under consideration. Thus the direction contained in the order passed u/s 263/143(3)/147 by Ld. CIT, Kol-II, Kolkata to examine the directors on oath to verify their credentials as directors and reach a logical conclusion regarding the controlling interest could not be implemented due to the non-compliance of the then directors of the assessee company. Due to the non-appearance of Mr. Mohan Kumar Kedia and Mrs. Sarita Devi Kedia (the then two directors of the company during the relevant previous year), their identity of being working directors of the assessee company during the relevant previous year as claimed and the genuineness of their having actually worked as directors of the company during the year, as claimed, remained unproven and consequently, the business of the assessee company and genuinen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Necessary compliance was made by such share applicants through Speed Post. (copy of the reply was enclosed in the paper book for your kind perusal). Further, the A.O. issued summon u/s 131 to the Act to the directors of the assessee company which was again never served on the directors as the address mentioned were wrong. Finally, the directors got the summons through hand delivery and in response appeared personally before the A.O. and prayed for some time as the document requisitions were more than 6-7 years old. Subsequently, the directors appeared and made the necessary compliance. The directors continuously appeared before the A.O. but he never recorded their appearance and grossly erred in concluding that the directors never appeared. Further, the directors states on oath that he appeared but his statement was not recorded. The Ld. A.O. without making any effort to examine the accounts of the share holders has concluded that because the erstwhile directors have not appeared, the genuinity of the transactions was not proved beyond doubt. 2.5 The only reasons making addition was that the directors of the assessee company did not appear so the impugned fresh capital of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, the A.O. therefore, was within his jurisdiction in treating such share capital and share premium as unaccounted cash credit of the assessee company and adding the same u/s 68 of the Act. The addition of ₹ 36,43,50,000/- is therefore, confirmed. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal. 6. We have heard the arguments of both the sides and also perused the relevant material available on record. The learned counsel for the assessee has raised a preliminary issue regarding lack of proper and sufficient opportunity given by the A.O. to the assessee as well as the non-consideration by him of the relevant documentary evidence furnished by the concerned 35 share-holder applicants in response to the notices under section 133(6). As pointed out by him, a specific direction was given by the Ld. CIT to the A.O. in the order passed under section 263 to examine the genuineness and source of share capital, not on a test check-basis, but in respect of each and every share-holder by conducting independent inquiry not through the assessee. The A.O. was also directed by the Ld. CIT that the bank account for the entire peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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