TMI Blog2019 (3) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. [2015 (3) TMI 410 - DELHI HIGH COURT], 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. - Decided in favour of assessee for statistical purposes. - I.T.A. No. 1250/Kol/2017 - - - Dated:- 27-2-2019 - Shri P.M. Jagtap, Vice President And Shri A. T. Varkey, JM For the Appellant : Shri S. M. Surana, Advocate For the Respondent : Shri A. K. Nayak, CIT, DR ORDER PER SHRI A.T.VARKEY, JM This appeal has been filed by the assessee against the order of Ld. CIT(A)-9, Kolkata dated 22.03.2018 for AY 2008-09. 2. Though the assessee have raised 13 grounds of appeal, but the sole issue involved is against the action of Ld. CIT(A) in confirming the addition of ₹ 80,91,00,000/- as unexplained cash credit u/s. 68 of the Income-tax Act, 1961 (hereinafter referred to as the Act ), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould pass the assessment order after conducting independent detailed and complete enquiries into the subscription of the share capital and premium and the AO should trace the source of share capital by enquiring into the various layers through which the money has been introduced in this company as share capital and also examine the then directors of subscriber companies by issuing summons under sec. 131 of the Act. And that the AO should forward information to the AOs having jurisdiction over the subscriber company to the share capital regarding its investment into share capital and premium paid. It was specifically directed by Ld. CIT that the AO should conduct independent enquiries to verify the documents filed before him in respect of proof of subscription to share capital. And that the AO should not confine himself in conducting enquiries into the subscribers to the share capital only on selective basis. The AO should also call upon the assessee to identify the persons who are shown as directors of the assessee company and examine them on oath to verify their credential as directors. The AO should pass speaking order after providing reasonable opportunity to the assessee and ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed the action of AO and dismissed the appeal of the assessee. Aggrieved, assessee is before us. 4. The Ld. AR assailing the decision of the Ld. CIT(A), wants us to delete the addition confirmed by the Ld. CIT(A) and pointed out before us that no proper opportunity the assessee got before the AO during the assessment proceedings, so the AO s order is bad in law. Per contra, the Ld. DR supported the action of the Ld. CIT(A) and does not want us to interfere in the order of the Ld. CIT(A). 5. We have heard rival submissions and gone through the facts and circumstances of the case. We note that the AO was giving effect to the order of Ld. CIT passed u/s. 263 of the Act on 07.03.2013. Whereas we note that the Ld. CIT s direction in similar case was to make enquiries to unravel the modus operandi by investigation as per following guidelines: The AO is directed to (i) Examine the genuineness and source of share capital, not on a test check basis, but in respect of each and every shareholder by conducting independent enquiry not through the assessee. The bank account for the entire period should be examined in the course of verification to find out the money trail of the share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have placed evidence before the first appellate authority or before the Tribunal is really of no consequence for it is the assessment order that counts. That order must be made after the assessee has been given a reasonable opportunity of setting out his case. We, therefore, do not agree with the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus : 1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at by it that the Incometax Officer had not given a proper opportunity of hearing to the assessee ? In our opinion, there can only be one answer to this question which is inherent in the question itself : in the negative and in favour of the assessee. The appeals are allowed. The order under challenge is set aside. The assessment order, that of the Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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. 10. In view of the aforesaid order and in the light of the Hon ble Supreme Court s decision in Tin Box Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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