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TMI Blog2021 (2) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... petition for condonation. After perusing the same, we are convinced that the assessee was prevented by sufficient cause from filing of the appeal in time. Hence, we condone the delay and admit the appeal of the assessee. 3. The assessee is a company and during the previous year it raised share capital amounting to Rs. 4,47,00,000/-, including share premium. The assessing officer made an addition u/s. 68 of the Act, of this amount, due to non-appearance of the directors of the share applicant companies and the directors of the assessee company, in response to notices u/s. 131 of the Act. Hence, he held that the genuineness of the credit could not be proved. Aggrieved, the assessee carried the matter in appeal before the Ld. first appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside to the file of the AO for fresh adjudication, in accordance with law. 6. After hearing both sides, we are of the opinion that this case has to be restored to the file of the Assessing Officer as no adequate opportunity was given to the assessee. The Assessing Officer states that the summons was issued u/s. 131 of the Act. There is no record to show that these summons/notices were served. The Assessing Officer concluded, on the basis of surmises and conjectures that, the transactions were not genuine. The ld. CIT(A) passed an ex-parte order. But we find that notice of hearing was not served on the assessee. This is violation of principles of natural justice. We find that this bench of the ITAT in all such cases has been restoring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee company to be present before him on 06.03.2014. However, according to the Ld. AR, the assessee received the notice only on 07.03.2014 and thereafter, the assessee requested the AO to provide another opportunity of hearing vide its letter dated 20.03.2014. Thereafter, the AO fixed the date of hearing on 12.03.2014 vide notice dated 10.03.2014. So, according to the assessee company since the directors were not in station till 23.03.2014, the Ld. AR had requested for adjournment till that time. Though the AO has stated that he has issued summons on 24.03.2014 to the assessee company to produce the directors of the company before him on 26.03.2014, the assessee company contended that it has not received the said summon and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed 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 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 Rs. 8,06,00,000/- which has remained unexplained and added to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eting 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. 42. The AO here may have failed to discharge his obligation to conduct a proper inquiry to take the matter to logical c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance to law after giving opportunity of being heard to the assessee. 7. We, therefore, consider it fair and proper and in the interest of justice to set aside the orders of the authorities below on the issue in dispute and restore the matter to the file of the A.O. to decide the same afresh after giving the assessee proper and sufficient opportunity of being heard and after taking into consideration the entire evidence already available on record as well as other documentary evidence which the assessee may choose to file in support of its case on the issue." 6.2. The Kolkata Bench of the ITAT has passed similar orders in many cases on the same issue of additions made u/s. 68 of the share capital and has set aside the assessment to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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