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TMI Blog2018 (6) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... unity 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 - Appeal of assessee is allowed for statistical purposes . - I.T.A. No. 2028/Kol/2016 - - - Dated:- 13-6-2018 - Shri A. T. Varkey, JM And Shri M. Balaganesh, AM For The Appellant : Shri Miraj D. Shah, AR For The Respondent : Shri Sallong Yaden, Addl. CIT ORDER Per Shri A.T.Varkey, JM The appeal filed by the assessee is against the order of Ld. CIT(A)-6, Kolkata dated 28.07.2016 for AY 2008-09. 2. The impugned order of Ld. CIT(A) is an ex parte order. From a reading of the impugned order of the Ld. CIT (A), it is noted that he fixed the hearing of the appeal on few da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was issued and served upon the assessee on 28.08.2013, asking it to produce and submit certain details and documents to substantiate its Return of Income. In response to the said notice, Sri K V Jaiswal, A/R of the assessee appeared and produced written submissions. 4. It was noticed the assessee during the year has raised a paid-up share capital of ₹ 4.12 crores by issuing equity shares including premium. To verify the genuineness of the said transactions and to verify the identity and creditworthiness of the shareholders of the assessee company, notice u/s 131 of I.T. Act was issued to directors. They were asked to appear personally before the undersigned and to produce/furnish details / documents in support of the justification for the investment made by them in the assessee company and other details as asked for. But none was appeared in response to the notice u/s 131 of IT Act 1961. From the aforesaid facts and discussion it is evident that assessee has nothing to say in this matter. It is very clear that assessee has introduced its own unaccounted fund in the form of share application money, to legalize its own black money. Considering the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing sec. 131 notices to the share applicants (date not specified) and taking note that none appeared before him, drew adverse inference against the assessee. Since the Ld. AR of the assessee appeared, he should have called him again for proper explanation and conducted the investigation in a fair manner. Without doing that AO has suddenly come to a conclusion that assessee failed to prove the genuineness of the share capital. Therefore, we find force in the submission of the Ld. AR that no proper opportunity was given to assessee by AO during the reassessment proceedings and so we are, therefore, of the opinion that assessee did not get proper opportunity before the AO during reassessment proceedings. The Hon ble (three judge bench) of the Hon ble Supreme Court in Tin Box Company Vs. CIT (2001) 249 ITR 216 (SC) has held as under: It is unnecessary to go into great detail in these matters for there is a statement in the order of the Tribunal, the fact-finding authority, that reads thus : We will straightaway agree with the assessee s submission that the Income-tax Officer had not given to the assessee proper opportunity of being heard. That the assessee could hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subscribers. We note that the Hon ble Supreme Court (three judges bench) in the case of Tin Box, (supra), has held that since there was lack of opportunity to the assessee at the assessment stage itself, the assessment needs to be done afresh and thereby reversed the Hon ble High Court, Tribunal and CIT(A) s orders and remanded the matter back to AO for fresh assessment. So, since there was lack of opportunity as aforestated it has to go back to AO . 8. 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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