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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 ..... his is violation of principles of natural justice. We find that this bench of the ITAT in all such cases has been restoring the matter to the file of the Assessing Officer for fresh adjudication in accordance with law - Appeal of the assessee is allowed for statistical purposes. - I.T.A. No. 497/Kol/2018 - - - Dated:- 27-1-2021 - J. Sudhakar Reddy, Member (A) And Aby T. Varkey, Member (J) For the Appellant : Soumitra Choudhury, Adv For the Respondents : Dhrubajyoti Ray, JCIT ORDER J. Sudhakar Reddy, Member (A) This is an appeal filed by the assessee directed against the order of the Learned Commissioner of Income Tax (Appeals)-16, Kolkata, [hereinafter the CIT(A) ], passed u/s. 250 of the Income Tax Act, 1961 (the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not appeared before him or, were not produced before him, made the addition u/s. 68 of the Act. It is also seen that the Assessing Officer has issued summons u/s. 131 of the Act to the directors of the company for their personal appearance but since these could not be served, there was no compliance. The Assessing Officer passed a best judgment assessment u/s. 144 of the Act, dated 14.03.2015. He submitted that the notice of hearing issued by the Ld. CIT(A) was also not served on the assessee and hence the assessee could not appear before the ld. CIT(A). The ld. CIT(A) passed an ex-parte order. He prayed that the issue may be remanded back to the file of the Assessing Officer for fresh adjudication with a direction to the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital 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 IT. Acknowledgement, bank statement for the relevant period evidencing the receipt of share application money from the share applicants. Thereafter, the AO makes certain inferences based on the list of shareholders and taking note of the bank statement furnished by the assessee. We note that after the initial not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the opinion that the assessee did not get fair opportunity to present the evidences before the AO so, there was a lack of opportunity as aforesaid, therefore, it has to go back to AO. 8. We also note that Ld. Cit while setting aside the order of the AO which was passed u/s. 147/143(3) of the Act, the Ld. CIT gave certain guidelines to follow for conducting deep investigation. We also note that similarly placed assessees had challenged the exercise of revisional jurisdiction u/s. 263 of the Act before this Tribunal in those cases one of it of Subha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in ITA No. 1104/Kol/2014 dated 30.07.2015, wherein the Tribunal was pleased to uphold the order passed by the Ld. CIT passed u/s. 263 of the Act, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial submitted by the assessee in response to the notice under Section 148 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 IT AT, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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