TMI Blog2018 (6) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... is order of the Ld. CIT(A). CIT(A) has passed a mechanical order without considering the legal position and the facts of the case as brought out by the AO. Thus we set aside this appeal to the file of the AO for fresh adjudication and in accordance with law, after giving the assessee adequate opportunity of being heard. - I.T.A No. 1240/Kol/2015 - - - Dated:- 1-6-2018 - Hon ble Shri J. Sudhakar Reddy, AM And Hon ble Smt. Madhumita Roy, JM For the Department : Shri Sallong Yaden, Addl. CIT For the Appellant : Shri Manish Tiwari, FCA ORDER Per J.Sudhakar Reddy, AM This appeal by the revenue directed against the order of the Commission of Income Tax(Appeals)-2, Kolkata passed u/s 143(3) of the Income Tax Act, 1961(t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to uphold this order of the Ld. CIT(A). 5. Coming to the order of the AO at para13 it is stated that the summons was sent to the Directors of the assessee company as well as Directors of the investing companies but none of them appeared. Before the Ld. CIT(A), the assessee has specifically stated that no summons u/s 131 of the Income Tax Act, 1961 were received by the assessee. It was also argued that the assessing officer has not made any independent enquiry at his end, to disprove the claim of the assessee companies. The sum and substances of the arguments of the revenue is that the Ld. CIT(A) has passed a mechanical order without considering the legal position and the facts of the case as brought out by the AO. The ld. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany 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 summons 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2015 wherein after noticing inadequate enquiry by authorities below have held as under: 41. We are inclined to agree with the CIT(Appeals), and consequently with ITAT, to 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 through banking channels, it does not necessarily 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 obligation to conduct a proper inquiry to take the matter to logical conclusion. But CIT(Appeals), having no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing 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 the assessee may choose to file in support of its case on the issue. The Kolkata Bench of the ITAT has passed similar order in many cases on the same issue of additions made u/s 68 of the share capital, has set aside the assessment to the file of the AO for fresh adjudication in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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