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2022 (8) TMI 209 - HC - Income TaxAddition u/s 68 - unexplained share subscription transaction - assessee failed to establish the creditworthiness, identity and genuineness of transaction for which credit in the books of accounts - ITAT deleted the addition - HELD THAT - Tribunal has stated that the facts of the case are not in dispute. It is not clear on what basis the Tribunal came to such a conclusion. Tribunal has not recorded that the revenue has conceded to the documents details produced by the assessee for the first time before the Tribunal. According to the Tribunal, those documents were available in the assessment file. Be that as it may, the assessee was bound to co-operate in the assessment proceedings. In spite of several notices the assessee did not even care to reply to the said notices nor respond to the notices. Therefore, we are required to examine the correctness of the order passed by the Tribunal on merits. It will be rewarding a person who does not require such an indulgence - Tribunal fell in error by stating that the facts are not in dispute. Then the enquiry could not be completed by the AO on account of supine interference on the part of the assessee in not co-operating with the assessment proceedings. Therefore, we are of the clear view that the matter has to be remanded back to the AO for fresh consideration. Revenue appeal is allowed.
Issues:
1. Condonation of delay in filing the appeal. 2. Deletion of addition under Section 68 of Income Tax Act. 3. Sustainability of the Tribunal's order. 4. Conduct of the assessee during assessment proceedings. 5. Remand of the matter to the Assessing Officer for fresh consideration. Condonation of Delay: The High Court of Calcutta, comprising Hon'ble Justice T.S. Sivagnanam and Hon'ble Justice Hiranmay Bhattacharyya, condoned the delay of 844 days in filing the appeal after being satisfied with the reasons provided in the affidavit supporting the condonation application. The delay was allowed to be condoned, and the application for condonation of delay was granted. Deletion of Addition under Section 68: The appeal filed by the revenue under Section 260A of the Income Tax Act, 1961, challenged the order of the Income Tax Appellate Tribunal (ITAT) regarding the addition of Rs. 40,24,70,000 under Section 68. The Tribunal had deleted this addition as the assessee failed to establish the creditworthiness, identity, and genuineness of the transaction for which credit was recorded in the books of accounts. The High Court examined whether the Tribunal erred in law by deleting the addition and found that the Tribunal's decision was incorrect. The Court remanded the matter back to the Assessing Officer for fresh consideration. Sustainability of the Tribunal's Order: The High Court scrutinized the conduct of the assessee during the assessment proceedings. Despite repeated notices and requests for cooperation, the assessee did not respond adequately, leading to the completion of assessment by the Assessing Officer. The Court found that the Tribunal's conclusion that the facts were not in dispute was erroneous due to the lack of cooperation from the assessee. Consequently, the High Court set aside the Tribunal's order and remanded the matter to the Assessing Officer for a fresh examination. Conduct of the Assessee During Assessment Proceedings: The Court highlighted the lack of cooperation from the assessee during the assessment proceedings, which hindered the proper conduct of the enquiry. The assessee failed to respond to notices and requests, leading to the dismissal of the appeal by the Commissioner of Income Tax (Appeals). The Court emphasized the importance of the assessee's cooperation in assessment proceedings and directed the Assessing Officer to issue a single notice outlining all requirements for the assessee's compliance. Remand of the Matter to the Assessing Officer: In conclusion, the High Court allowed the appeal, setting aside the Tribunal's order and directing the remand of the matter to the Assessing Officer for fresh consideration. The Court granted the assessee a final opportunity to cooperate in the assessment proceedings, failing which the previous assessment order would stand revived without further reference to the Court. The substantial questions of law were left open, and the stay application was closed.
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