TMI Blog2018 (9) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. Hence this order is passed without application of mind. 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 - Decided in favour of assessee for statistical purposes. - ITA Nos.561 And 562/Kol/2016 - - - Dated:- 14-9-2018 - Shri J. Sudhakar Reddy, AM And Smt. Madhumita Roy, JM For The Appellant : Shri Miraj D.Shah, AR For The Respondent : Shri G.Hangshing, CIT(DR) And Shri Saurabh Kumar, Addl. CIT, Sr.DR ORDER PER MADHUMITA ROY, JM The instant appeals have been filed by the assessee against separate orders dated 14.01.2016 passed by the ld. CIT(A)-2, Kolkata u/s 250 of the Income Tax Act, 1961 (in short the Act ) arising out of the order dated 31.03.2014 passed by the I.T.O., Ward-5(2), Kolkata for A.Y.2009-10 and against the order dated 04.02.2016 passed by the ld. CIT(A)-2, Kolkata arising out of the order dated 19.03.2015 passed the I.T.O., Ward-5(2), Kolkata for A.Y.2010-11. Since the issue is identical in both the appeals they are heard together and disposed of by a common order for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed companies with a direction to produce authenticated papers in support of the subscription made in effect to verify the genuineness, identity and creditworthiness of the share holders of the assessee company. None of them appeared before the AO. A show cause notice was issued on 28.03.2014 failing which another show cause notice issued to the assessee to explain as to why the share application amount of ₹ 4,60,00,000/- should not be treated as bogus, unaccounted money introduced in its books of accounts as share application money as also unaccounted cash credit in its books in terms of provision of section 68 of the Act. However, no explanation has been given by the assessee. Ultimately the entire share application money of ₹ 460,00,000/- received by the assessee during the year has been disallowed and added to the total income of the assessee against which the appeal has been preferred before the ld. CIT(A) and who in turn confirmed the same on the basis of the finding made by the AO. 6. The ld. representative of the assessee at the time of hearing of the matter relied upon the judgments passed by this Coordinate Bench of this Tribunal in the case of ITO vs M/s D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for the assessee submits that the AO has not given adequate opportunity and has passed an order without enquiring. He supports the order of the Ld. CIT(A). 6. In the case of Sriram Tie Up Pvt. Ltd. supra at para 6 and 7 held as follows: 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 recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 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 the Act before this 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 the Act, which we learn to have 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 obligation of the first 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 in the 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 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 up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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