2019 (1) TMI 1562 - AT - Income Tax

Tribunal remands revenue appeal for fresh assessment, stresses fair opportunity for assessee.

The Tribunal allowed the revenue's appeal for statistical purposes, remanding the issue back to the Assessing Officer for fresh adjudication in accordance ... Addition u/s 68 - adequate opportunity to examine all the details filed on record before the ld. CIT(A) - HELD THAT:- 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. Tribunal in SRIRAM TIE UP PVT. LTD. VERSUS ITO, [2018 (3) TMI 1403 - ITAT KOLKATA] has passed similar order in many cases on the same issue of additions made u/s 68 of the share capital. It has set aside the assessment to the file of the AO for fresh adjudication, on the lines stated in the above order after giving the AO an opportunity to examine the evidence already on record as well as other documentary evidences which the assessee has filed at the appellate stage or further may choose to file in support of his case. The orders of the Co-ordinate Bench of the Tribunal in similar matters, we set aside this issue to the file of the AO for fresh adjudication in accordance with law, after giving the assessee adequate opportunity of being heard. Accordingly the appeal of the revenue is allowed for statistical purposes - Appeal of the revenue is allowed for statistical purposes. Issues:Appeal against order u/s. 250 of the Income Tax Act, 1961 for Assessment Year 2012-13. Addition u/s 68 of the Act on share capital including share premium. Request for remand back to Assessing Officer for fresh adjudication. Similar orders by ITAT Kolkata on additions u/s 68 of share capital.Analysis:The appeal was filed against the order of the Learned Commissioner of Income Tax -4, Kolkata, under section 250 of the Income Tax Act, 1961, for the Assessment Year 2012-13. The assessing officer had made an addition under section 68 of the Act concerning share capital, including share premium, raised by the company during the previous year. The first appellate authority deleted the addition and granted relief to the assessee, leading the revenue to appeal. The Tribunal heard both sides and found that in similar cases, the matter was remanded back to the Assessing Officer for fresh adjudication. The Tribunal cited a case where a similar issue was remanded back for further examination due to lack of fair opportunity for the assessee to present evidence before the AO.The Tribunal referred to a case where the CIT set aside the AO's order and provided guidelines for conducting a deep investigation. It was noted that similar orders by the CIT under section 263 of the Act had been upheld by the Tribunal and higher courts. The Tribunal emphasized the importance of following investigating guidelines to determine the identity, genuineness, and creditworthiness of share subscribers. Citing Supreme Court and High Court decisions, the Tribunal highlighted the need for fair opportunity for the assessee during assessment and the requirement for a fresh assessment in case of lack of opportunity.The Kolkata Bench of the ITAT had issued similar orders in various cases regarding additions under section 68 of share capital, remanding the assessments back to the AO for fresh adjudication. Considering the facts and precedents, the Tribunal set aside the issue to the file of the AO for fresh adjudication in accordance with the law, ensuring the assessee is given adequate opportunity to be heard. Consequently, the appeal of the revenue was allowed for statistical purposes, and the order was issued on January 16, 2019.