TMI Blog2018 (10) TMI 1666X X X X Extracts X X X X X X X X Extracts X X X X ..... e set aside the order of the 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. - Appeal of assessee is allowed for statistical purposes. - I.T.A. No. 521/Kol/2017 Assessment Year: 2009-10 - - - Dated:- 16-10-2018 - Shri A. T. Varkey and Shri M. Balaganesh, JJ. For the Appellant Shri Miraj D. Shah, FCA For the Assessee/Cross Objector Shri P. K. Srihari, CIT, DR ORDER Shri A.T.Varkey, This appeal preferred by the assessee is against the order of the Ld. CIT(A)-5, Kolkata dated 05.12.2016 for AY 2009-10. 2. The assessee has preferred this appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide with the direction that the AO should pass the assessment order after conducting independent, detailed and complete enquiries into the subscription to the share capital and premium to the extent of ₹ 490/- introduced in this case. It was also directed to pass a speaking order after providing a reasonable opportunity to the assessee company and verify the source of share capital including the share premium of all the subscribers and rotation of money through various hands so as to ascertain the true nature of transaction which will bring to the force, the reality of the transactions. For giving effect to the order of Ld. CIT, the AO issued notices u/s. 131 of the Act to all the 20 share allottee parties as per list specified in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing the best judgment assessment on 31.03.2015. However, the main grievance of the assessee is that no proper opportunity was given to the assessee to prove identity, creditworthiness and genuineness of the transaction. For that the Ld. AR drew our attention to page 5 of the assessment order and specifically to para 11 from where we note that the AO has received the records only on 18.03.2015 and he has passed the impugned assessment order on 31.03.2015 i.e. within a period of 12 days wherein he was pleased to saddle the entire share application money as the income of the assessee. The Ld. AR pleads before us that within 12 days the assessment could not have been property made and there has been gross violation of natural justice. So, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst 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 (Appeals) and of the Tribunal are also set aside. The matter shall now be remanded to the assessing authority for fresh consideration, as aforestated. 5. In similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. We also note that the Hon ble Delhi High Court in the case of CIT Vs. Jansampark Advertising Marketing Pvt. Ltd. in ITA No. 525/2014 dated 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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