TMI Blog2018 (6) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... ER MADHUMITA ROY, JM The instant appeal has been filed before us by the assessee against the order dated 19.05.2014 passed by the Commissioner of Income Tax (appeals) 6, Kolkata under section 143(3) of the Income Tax Act, 1961 (Act), for A.Y.2011-12 arising out of the order dated 28.03.2014 passed by the Income Tax Officer, Ward-6(2), Kolkata. 2. The sole ground raised in the appeal to this effect that whether the CIT(A) was justified in confirming the addition of ₹ 55,42,00,000/- made by the AO on account of share capital by wrongly treating the same as unexplained cash credit under Section 68 of the Act in the facts and circumstances of the case. 3. The fact of the case is this that during the assessment proceedings the AO found that, during the year under consideration the assessee had received share capital of ₹ 55,42,00,000/- which included share premium of ₹ 53,15,29,000 @ ₹ 1990/- per share, in respect of 2,67,100 shares issued to 19 different Pvt Ltd Companies. The AO found that the appellant had no business activity, it was its first year of operation and net income of ₹ 1923 only had been declared. Yet, shares had been issued at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006-07 onwards. If there is any change in Directorship from the relevant previous year, then you are requested to come along with the previous Director, along with all the documents as refered above of the then Director. Please also produce evidences to prove identity, genuineness and creditworthiness of share applicants for the relevant F. Y. Simultaneously , summon u/ s 131 were issued to some of the Directors of all share applicant companies on 26.02.2014 to appear before undersigned on 11.03.2014 for their personal appearance for recording the statement on oath and also to substantiate the identity of the share applicants and also look into the genuineness and creditworthiness of share applicants. But neither there was any compliance from the part of the assessee company nor from the investors companies in compliance to the summons issued. Further a show cause letter was issued to the Directors of assessee company on 21.03.2014 through emails asking to appear before undersigned on 24.03.2014 for personal appearance and recording his statement on oath. But, there was no compliance. Therefore process of verification of identity, genuineness of the transaction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the AO had issued the notice on 26.02.2014 which has been reproduced at page 3 of the reassessment order, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 sufficient opportunity of being heard and after taking into consideration the entire evidence already availa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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