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TMI Blog2018 (6) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... act 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. 1995/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)-2, Kolkata dated 08.08.2016 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 dates and since none represented on behalf of assessee, has passed the ex parte order. As per the Ld. AR, the assessee was promptly following up the appeal and whenever it could not represent before the Ld C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r conducting the inquiries verification as directed above, the AO should pass a speaking order, providing adequate opportunity of being heard to the assessee. 4. However, we note that AO s investigation as per his own words is as under: The company issued 804000 shares at face value of ₹ 10/- per share but at premium of ₹ 90/- per share. What prompted the subscribers to the shares to pay such substantial premium on shares of a little known company having no or insignificant business activities was a question raised by the Ld. CIT-Kolkata-III, Kolkata. So Ld. CIT-Kolkata-III, Kolkata passed an order u/s. 263 of I. T. Act, 1961 11.03.2013 in this case for the AY 2008-09 and set aside the case to the file of the AO to pass the order afresh after inquiring properly the various layers through which the share capital had been rotated. Hence, notice u/s. 142(1) of the I.T. Act, 1961 was issued on 29.10.2013 by post to be served upon the assessee for the A.Y.2008-09. But the postal authority returned the same to the office of the undersigned with a remark Not Known . Again .Notice u/s. 142(1) of the I. T. Act, 1961 was issued on 15.01.2014 to be served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent. So, according to AO, there was total confusion about the addresses of shareholders and since the AR of the assessee could not produce books, according to AO, genuineness of the share capital could not be ascertained. Therefore, he saddled the addition. We note that the AO acknowledges that Ld. AR of the assessee appeared before him on 03.03.2014 however the AO says his first notice dated 29.03.2013 was un-served, then the question is how the Ld AR of assessee appeared before the AO. So when the Ld. AR of the assessee appeared, AO should have called for proper explanation and conducted the investigation in a fair manner in the light of CIT order. Without doing that AO has suddenly come to a conclusion that assessee failed to prove the genuineness of the share capital. These facts per-se reveal non-application of mind. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s directed by the Ld. CIT. We take note that the Ld. CIT with his experience and wisdom has given certain guidelines in the backdrop of black money menace should have been properly enquired into as directed by him. The AO ought to have followed the investigating guidelines and method as directed by him to unearth the facts to determine whether the identity, genuineness and creditworthiness of the share 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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