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TMI Blog2019 (3) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... during the reassessment proceedings before the AO. Since proper opportunity was not given to assessee by AO during the reassessment proceedings, we are of the opinion that assessee should get proper opportunity 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 IT 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 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. 771/Kol/2018 - - - Dated:- 27-2-2019 - Shri P.M. Jagtap, Vice President And Shri A. T. Varkey, JM For the Appellant : Shri Subash Agarwal, Advocate For the Respondent : Shri Sankar Halder, JCIT, Sr. DR ORDER PER SHRI A.T.VARKEY, JM T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. According to AO, it is very astonishing that the investors who had invested money at a premium of ₹ 390/- per share with a face value of ₹ 10/- per share in a company whose total income for the earlier year is small and has not turned out before him to summons u/s. 131 of the Act, creates doubt as the identity and creditworthiness of investors and most importantly the genuineness of transaction of share capital and premium received by the assessee company. According to AO, the identity as well as the creditworthiness and genuineness of the shareholders could not be established, so the entire amount of ₹ 8,97,21,000/- received by the assessee during the year was added by the AO as unexplained credit in the books of the assessee company and added to the total income u/s. 68 of the Act. Aggrieved, assessee preferred an appeal before the Ld. CIT(A), who confirmed the action of AO. Aggrieved, assessee preferred this appeal before us. 4. We have heard rival submissions and gone through the facts and circumstances of the case. We note that the AO was giving effect to the order of Ld. CIT passed u/s. 263 of the Act on 14.03.2013. Whereas we note that the Ld. CIT s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.10.2014 the new address. Thereafter, when the AO fixed the hearing as last opportunity to assessee, the assessee had filed written submission along with documents to substantiate identity, genuineness and creditworthiness of the investors/share subscribers. And the AO passed the reassessment order on 10.03.2015. So this exercise of effective verification of the documents produced by the assessee could not be possible because within 30 days of the assessee submitted the written submission along with documents, the AO passed the Best Judgment Assessment u/s. 144 of the Act. And we note that other than issuing summons u/s. 131 of the directors of the assessee company (to old address) no other investigation as directed by Ld. CIT was conducted by AO as is discernable from the order. So, in the light of the aforesaid facts, we find force in the submission of the Ld. AR that no proper opportunity the assessee got during the reassessment proceedings before the AO. Since proper opportunity was not given to assessee by AO during the reassessment proceedings, we are of the opinion that assessee should get proper opportunity before the AO during reassessment proceedings. The Hon ble (t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, similar order of the Ld. CIT has to be given effect to as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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