TMI Blog2019 (2) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... l/2016 - - - Dated:- 14-11-2018 - Shri P.M.Jagtap, Vice-President And Shri S.S.Godara, Judicial Member For the Appellant : Shri Robin Choudhury, addl. CIT-SR-DR For the Respondent : Shri Manish Tiwari, ORDER PER S.S.GODARA, JUDICIAL MEMBER:- This Revenue s appeal for assessment year 2012-13 arises against the Commissioner of Income Tax (Appeals)-4, Kolkata s order dated 10.05.2016, passed in case No.352/CIT(A)-4/Ward-10(1)/Kol/15-16 in reversing the Assessing Officer s action adding the taxpayer s share application / premium money of ₹1,09,00,000/- treated as unexplained cash credits u/s 68., involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short the Act Heard both the parties. Case fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidence forming part of the case list. 3. We are informed that the Revenue had filed ITA No.1173/Kol/2015 against the CIT(A) s identical findings deleting sec. 68 addition of unexplained share capital / premium in case instant assessee s sister concern M/s Pratibha Nirman Pvt. Ltd s case . A co-ordinate bench s order dated 01.06.2018 is placed on record remitting the issue back to the Assessing Officer as under:- 5. In the order of the AO, 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee company 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 11.03.2015 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), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity 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 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 and the case was sent back to the AO for fresh adjudication in accordance with law. 7. Keeping in view the totality ..... X X X X Extracts X X X X X X X X Extracts X X X X
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