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2019 (3) TMI 157 - AT - Income TaxUnexplained cash credit u/s. 68 - denial of natural justice - amounts received by the assessee towards share capital and share premium - reassessment order passed ex parte by invoking sec. 144 - grievance of the assessee is that no proper opportunity was given to the assessee to discharge the onus casted upon it as required when section 68 - HELD THAT - We note that other than issuing summons u/s. 131 of the directors of the assessee company no other investigation as directed by Ld. CIT was conducted by AO as is discernable from the order. So, in the light of the aforesaid facts, we find force in the submission of the Ld. AR that no proper opportunity the assessee got before the AO during the reassessment proceedings. Since proper opportunity was not given to assessee by AO during the reassessment proceedings, we are of the opinion that assessee should get proper opportunity before the AO during reassessment proceedings. in the light of the Hon ble Supreme Court s decision in Tin Box Company 2001 (2) TMI 13 - SUPREME COURT and taking into consideration 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.
Issues Involved:
1. Confirmation of the addition of ?80,91,00,000/- as unexplained cash credit under Section 68 of the Income-tax Act, 1961. 2. Proper opportunity of being heard to the assessee during reassessment proceedings. 3. Adequacy of the Assessing Officer's (AO) investigation as per the guidelines provided by the Commissioner of Income Tax (CIT) under Section 263 of the Act. Issue-wise Detailed Analysis: 1. Confirmation of the addition of ?80,91,00,000/- as unexplained cash credit under Section 68 of the Income-tax Act, 1961: The sole issue in this appeal is the confirmation of the addition of ?80,91,00,000/- as unexplained cash credit under Section 68 of the Income-tax Act, 1961. The AO initially accepted the share capital contribution based on the documents provided by the assessee, including confirmation letters, profit and loss account, balance sheet, and other relevant documents. However, the CIT, in an order under Section 263, directed the AO to conduct a more thorough investigation into the subscription of the share capital and premium, including tracing the source of the share capital through various layers and examining the directors of the subscriber companies. The AO, in compliance with the CIT's directions, issued notices and summons to the directors of the assessee and subscriber companies. However, the directors did not appear, leading the AO to treat the sum of ?80,91,00,000/- as unexplained cash credit and add it back to the total income of the assessee. 2. Proper opportunity of being heard to the assessee during reassessment proceedings: The assessee's main grievance is that no proper opportunity was given to discharge the onus of proving the identity, creditworthiness, and genuineness of the cash credit as required under Section 68. The AO issued notices and summons but did not conduct further investigations as directed by the CIT. The Tribunal noted that the AO passed the reassessment order ex parte under Section 144 without affording a proper opportunity of being heard to the assessee. The Tribunal referred to the Supreme Court's decision in Tin Box Company Vs. CIT, which emphasized that an assessment order must be made after giving the assessee a reasonable opportunity of setting out their case. The Tribunal found that the assessee should have been given a proper opportunity during the reassessment proceedings. 3. Adequacy of the Assessing Officer's (AO) investigation as per the guidelines provided by the Commissioner of Income Tax (CIT) under Section 263 of the Act: The Tribunal observed that the AO did not follow the CIT's guidelines for conducting a thorough investigation into the share capital subscription. The CIT had directed the AO to examine the genuineness and source of share capital for each shareholder, verify the money trail, and examine the directors on oath. The AO's investigation was limited to issuing summons, and no further inquiry was conducted. The Tribunal referred to the Delhi High Court's decision in CIT Vs. Jansampark Advertising & Marketing Pvt. Ltd., which emphasized the need for a detailed scrutiny of the material submitted by the assessee. The Tribunal concluded that the AO did not conduct an adequate investigation as per the CIT's guidelines, and the matter should be remanded for a de novo assessment. Conclusion: In light of the Supreme Court's decision in Tin Box Company and the Delhi High Court's decision in Jansampark Advertising & Marketing Pvt. Ltd., the Tribunal set aside the order of the CIT(A) and remanded the matter back to the AO for a fresh assessment. The AO is directed to conduct a thorough investigation and provide the assessee with a proper opportunity of being heard. The appeal of the assessee is allowed for statistical purposes. Order Pronouncement: The order was pronounced in the open court on 27th February, 2019.
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