2022 (6) TMI 647 - AT - Income Tax

Addition u/s 68 - AO is of the opinion that the assessee has failed to establish the genuineness and credit worthiness of the investor and proceeded by making an addition - HELD THAT - The undisputed fact is that none appeared before the ld. CIT(A) who was convinced that the assessee did not want to pursue the appeal and, therefore, drew support from the decision of the Hon'ble Supreme Court in the case of B.N. Bhattachargee and Other 1979 (5) TMI 4 - SUPREME COURT We are of the considered view that the first appellate authority ought to have considered the documentary evidence brought on record by the assessee. Therefore, in the interest of justice and fair play, we deem it fit to restore the appeal to the file of the CIT(A). The ld. CIT(A) is directed to decide the appeal afresh after affording reasonable and sufficient opportunity of being heard to the assessee. Appeal of the assessee is allowed for statistical purposes.

Summary

Issues:
1. Dismissal of appeal without proper opportunity.
2. Dismissal of appeal without proper notice service.
3. Applicability of Section 68 in the circumstances.
4. Addition of share capital and share premium.
5. Failure to ascertain creditworthiness of existing shareholder.
6. Wrong computation of tax liability.
7. Wrong computation of surcharge, cess, and interest.
8. Request for altering, amending, modifying grounds of appeal.

Issue 1: Dismissal of appeal without proper opportunity
The appellant contended that the CIT(A) erred in dismissing the appeal without providing a proper opportunity. The appellant argued that they were not given a fair chance to present their case, which violated the principles of natural justice. The ITAT acknowledged this argument and directed the CIT(A) to decide the appeal afresh after affording reasonable and sufficient opportunity of being heard to the assessee.

Issue 2: Dismissal of appeal without proper notice service
The appellant raised concerns about the dismissal of the appeal without proper notice service. They argued that the notice was served only to a secondary contact who was not in contact with the appellant company at that time. The ITAT noted this discrepancy and emphasized the importance of proper service of notice to ensure that the appellant has a fair chance to participate in the proceedings.

Issue 3: Applicability of Section 68 in the circumstances
The appellant contested the application of Section 68 in their case, stating that the provisions were not applicable in their circumstances. They specifically mentioned that the shares were issued to an existing nonresident shareholder with proper approvals. The ITAT recognized this argument and highlighted the need for a thorough examination of the facts to determine the correct application of Section 68.

Issue 4: Addition of share capital and share premium
The Assessing Officer made an addition of share capital and share premium, citing concerns about the genuineness and creditworthiness of the investor. The ITAT noted that the appellant provided necessary evidences and valuation reports to support the transaction. However, the AO was not satisfied with the explanation, leading to the addition. The ITAT emphasized the importance of establishing the genuineness and creditworthiness of transactions to avoid such additions.

Issue 5: Failure to ascertain creditworthiness of existing shareholder
The appellant argued that the AO failed to conduct an independent inquiry to ascertain the creditworthiness of the existing nonresident shareholder before making the addition under Section 68. The ITAT agreed with this argument and highlighted the importance of proper verification to ensure the legitimacy of transactions.

Issue 6: Wrong computation of tax liability
The appellant pointed out errors in the computation of tax liability, leading to double tax liability. The ITAT noted this discrepancy and emphasized the need for accurate computation of tax payable to avoid undue financial burden on the appellant.

Issue 7: Wrong computation of surcharge, cess, and interest
The appellant raised concerns about the incorrect computation of surcharge, cess, and interest under Section 234B. The ITAT acknowledged these concerns and stressed the importance of accurate calculations to prevent any financial discrepancies.

Issue 8: Request for altering, amending, modifying grounds of appeal
The appellant requested the flexibility to alter, amend, modify, delete, vary, or add grounds of appeal at any time. The ITAT acknowledged this request, allowing the appellant the freedom to adjust their grounds of appeal as needed.

In conclusion, the ITAT allowed the appeal for statistical purposes, emphasizing the importance of providing a fair opportunity for the appellant to present their case and ensuring the proper application of relevant legal provisions in tax assessments.