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TMI Blog2018 (11) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted before us for the first time. In such a scenario, for the ends of justice and fair play for both the parties and since the assessee could not produce the directors at the fag end of the assessment, on which ground alone the share capital along with the premium was added u/s. 68 therefore, we hold that proper opportunity was not 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 - 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. - I.T.A. No. 140/Kol/2016 - - - Dated:- 31-10-2018 - Shri A. T. Varkey, JM And Shri M. Balaganesh, AM For the Appellant : Shri Ravi Tulsiyan, FCA For the Respondent : Md. Usman, CIT, DR ORDER PER SHRI A.T.VARKEY, JM This appeal preferred by the assessee is against the order of the Ld. CIT(A)-3, Kolkata dated 10.12.2015 for AY 2011-12. 2. At the outset the Ld. AR brought to our notice that the assessee comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... names of the shareholders to whom 91,35,000 shares were issued are given as under: Sl. No. Name of the shareholder No. of shares Share capital (Amount)(Rs.) Share premium (Amount)(Rs.) Total share Capital (Amount) (Rs.) 1 Newage Vinimay Pvt Ltd 8,00,000 8,00,000 7,92,00,000 8,00,00,000 2. Gaurav Vinimay Pvt. Ltd. 4,50,000 4,50,000 4,45,50,000 4,50,00,000 3. Gujarat NRE Energy Resources Ltd. 8,60,000 8,60,000 8,51,40,000 8,60,00,000 4. Critical Mass Multilink Ltd 7,25,000 7,25,000 7,17,75,000 7,25,00,000 5. Madhur Coal Mining Pvt Ltd 3,00,000 3,00,000 2,97,00,000 3,00,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 8,60,000 8,60,000 8,51,40,000 8,60,00,000 Critical Mass Multilink Ltd 5 7,25,000 7,25,000 7,17,75,000 7,25,00,000 Madhur Coal Mining Pvt. Ltd 3 3,00,000 3,00,000 2,97,00,000 3,00,00,000 Wonga Traders Pvt Ltd 14 20,00,000 20,00,000 19,80,00,000 20,00,00,000 Mahanidhi Vyapaar Pvt Ltd. 14 20,00,000 20,00,000 19,80,00,000 20,00,00,000 Bhachau Traders Pvt Ltd. 14 20,00,000 20,00,000 19,80,00,000 20,00,00,000 Total 100 1,41,35,000 1,41,35,000 90,43,65,000 91,85,00,000 6. The Ld. AR pointed out that the assessee company and all it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers Pvt Ltd and was the senior Vice President of Gujarat NRE Coke Ltd being the flagship company of the group. B.N. Agarwal is a common director in Madhur Coal Mining Pvt Ltd, Wonga Traders Pvt Ltd, Mahanidhi Vyapaar Pvt Ltd and was the ex- Employee of Gujarat NRE Coke Ltd being the flagship company of the group. 9. Thus the Ld. AR submitted from the aforesaid facts that all the share applicants are group concerns and have common directors and therefore identity is proved. 10. Thereafter, our attention was drawn to the following table which will give a picture of the funds received by the assessee company in the form of share capital from various share applicants: SL.No. Name of the Company Amount (Rs in crores) 1. Bhachau Traders Pvt Ltd (BTPL) 20.00 2. Critical Mass Multilink Ltd (CMM) 7.25 3. Gaurav Vinimay Pvt Ltd (GVPL) 4.50 4. Gujarat NRE Energy Resources Ltd (GNERL) 8.60 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Balance Sheet, Profit Loss Account, Acknowledgment of IT Return were also filed along with ledger account of transactions. 14. On 13.03.2014, the Ld. A.O. issued summons u/s. 131 of the Act upon the directors of shareholding companies to appear personally and to produce: Address proof of company by way of electricity bill, water bill etc Personal photo identity and residential proof Personal IT Return, profit Loss Account, Balance Sheet with bank statement Bank statements of company alongwith books of accounts especially the documents to substantiate the transactions with the assessee company in F.Y. 2010-11 Copy of annual return of the company filed before ROC for F.Y. 2010-11 onwards In case of change of Director, appearance shall have to be made with the previous director 15. It was brought to our notice that the summons alleged to have been issued on 13.03.2014 was actually served in the office of respective company shareholder on 19.03.2014 afternoon with a direction to make appearance on 20.03.2014. Further, since the said notice u/s. 131 of the Act was served on 19.03.2014, it was not possible for the directors to prepare with all the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 have placed evidence before the first appellate authority or before the Tribunal is really of no consequence for it is the assessment order that counts. That order must be made after the assessee has been given a reasonable opportunity of setting out his case. We, therefore, do not agree with the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus : 1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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