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TMI Blog2018 (11) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018 - Shri J.Sudhakar Reddy, AM Smt. Madhumita Roy, JM For the Appellant : Shri Miraj D.Shah, AR For the Respondent : Shri G.Hangshing, CIT(DR) Shri Saurabh Kumar, Addl. CIT, Sr.DR ORDER PER MADHUMITA ROY, JM The instant appeals have been filed by the assessee against separate orders dated 14.01.2016 passed by the ld. CIT(A)-2, Kolkata u/s 250 of the Income Tax Act, 1961 (in short the Act ) arising out of the order dated 31.03.2014 passed by the I.T.O., Ward-5(2), Kolkata for A.Y.2009-10 and against the order dated 04.02.2016 passed by the ld. CIT(A)-2, Kolkata arising out of the order dated 19.03.2015 passed the I.T.O., Ward-5(2), Kolkata for A.Y.2010-11. Since the issue is identical in both the appeals they are heard together and disposed of by a common order for the sake of convenience. ITA No.561/Kol/2016 A.Y.2009-10 2. The facts of the case is this that the assessee is a company engaged in the business of investment and trading of shares and securities. The assessee has filed the return of income electronically on 22.09.2009 disclosing total income of ₹ 8195/-. Upon scrutiny notice u/s 142(1) of the Act was made. The origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are application amount of ₹ 4,60,00,000/- should not be treated as bogus, unaccounted money introduced in its books of accounts as share application money as also unaccounted cash credit in its books in terms of provision of section 68 of the Act. However, no explanation has been given by the assessee. Ultimately the entire share application money of ₹ 460,00,000/- received by the assessee during the year has been disallowed and added to the total income of the assessee against which the appeal has been preferred before the ld. CIT(A) and who in turn confirmed the same on the basis of the finding made by the AO. 6. The ld. representative of the assessee at the time of hearing of the matter relied upon the judgments passed by this Coordinate Bench of this Tribunal in the case of ITO vs M/s Deepshika Distributors Pvt. Ltd. as well as Shriram Tie Up Ltd where an identical case was considered and upon setting aside the order passed by the authorities below the matter was remanded to the ld. AO for fresh adjudication of the same. The main issue which was considered by the Ld. Co-ordinate Bench was the guidelines/mandate framed/directed in the matter u/s 263 of the Act by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidering the legal position and the facts of the case as brought out by the AO. The ld. Counsel for the assessee submits that the AO has not given adequate opportunity and has passed an order without enquiring. He supports the order of the Ld. CIT(A). 6. In the case of Sriram Tie Up Pvt. Ltd. supra at para 6 and 7 held as follows: 6. In the case of M/s. Sukanya Merchandise Pvt. Ltd. vs ITO (ITA 291/Kol/2016 dated 15.12.2017) cited by the learned counsel for the assessee, a similar view has been taken by the Co-ordinate Bench of this Tribunal and the similar issue relating to the addition made under section 68 on account of share capital contribution by treating the same as unexplained cash credits is restored back by the Tribunal to the file of the A.O. in almost similar situation after recording its observations / findings as under: We note that the AO pursuant to the order of Ld. CIT had taken note of the directions of the Ld. CIT and issued notice u/s. 142(1) dated 16.08.2013 and has acknowledged that the assessee had furnished the copy of final account, I. T. Acknowledgement, bank statement for the relevant period evidencing the receipt of share application mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the Ld. CIT passed u/s. 263 of the Act, which we learn to have been confirmed by the Hon ble jurisdictional High Court and the SLP preferred against the decision of the Hon ble jurisdictional High Court has been dismissed by the Hon ble Supreme Court. Therefore, similar order of the Ld. CIT passed u/s. 263 of the Act has been upheld. We note that the AO while giving effect to the CIT s 263 order has noted that the assessee company has in fact furnished the documents sought by him to his notice u/s. 142(1) of the Act. However, the AO took the adverse view against the assessee on the plea that the directors of the assessee company and share subscribing companies had not appeared before him on 26.03.2014 and t after taking note that none appeared on 26.03.2014 concluded on the same day 26.03.2014 that entire amount of share application money received along with premium amounting to ₹ 8,06,00,000/- which has remained unexplained and added to the income of the assessee. We also note that the Ld. CIT after looking into the pernicious practice of converting black money into white money has given the guidelines to AO as to how the investigation should be conducted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents reveal uniform pattern of cash deposits of equal amounts in the respective accounts preceding the transactions in question. This necessitated a detailed scrutiny of the material submitted by the assessee in response to the notice under Section148 issued by the AO, as also the material submitted at the stage of appeals, if deemed proper by way of making or causing to be made a 'further inquiry in exercise of the power under Section 250(4). His approach not having been adopted, the impugned order of ITAT, and consequently that of CIT(Appeals), cannot be approved or upheld. In view of the aforesaid order and in the light of the Hon ble Supreme Court s decision in Tin Box Company (supra) 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. (supra), 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. 7. We, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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