2018 (9) TMI 1162 - AT - Income Tax

Tribunal remands tax appeals due to inadequate investigation and lack of fair opportunity for evidence presentation.

The Tribunal allowed both appeals for statistical purposes, remanding the matters back to the Assessing Officer for fresh assessment. The Tribunal found ... Reopening of assessment - additions made u/s 68 of the share capital - since the director did not appear before the ld. AO the entire amount has been added to the income of the assessee - whether AO has not made independent enquiry at his end to disprove the claim of the assessee company?- Held that:- We find that the ld. CIT(A) also purposely overlooked such conduct of the AO and confirmed the same on the basis of the finding by the AO in a stereotyped manner without considering the relevant laws, the present legal position in the identical facts of the case, the judgements passed by this ld. Tribunal which has attained finality by the pronouncement of the Apex Court. The identical case which was disposed of in ITO, WARD-6 (1) , KOLKATA VERSUS M/S DEEPSIKHA DISTRIBUTORS PVT. LTD. [2018 (6) TMI 361 - ITAT KOLKATA] as held without any discussion on this issue of limitation, the Ld. CIT(A)-2, Kolkata allowed ground no.1 of the assessee before him, which states that the notice u/s 143(2) of the Act was not served as the assessee within the statutory period specified under law. Hence this order is passed without application of mind. CIT(A) has passed a mechanical order without considering the legal position and the facts of the case as brought out by the AO. Thus we set aside this appeal to the file of the AO for fresh adjudication - Decided in favour of assessee for statistical purposes. Issues Involved:1. Disallowance of filing fees.2. Treatment of share capital and share premium as unexplained cash credit.3. Adequacy of the Assessing Officer’s (AO) investigation.4. Compliance with guidelines/mandate by CIT(A).Detailed Analysis:1. Disallowance of Filing Fees:The AO disallowed the filing fees of Rs. 24,500/- during the assessment. However, this issue was not elaborated upon further in the judgment, indicating that it was not a central point of contention in the appeals.2. Treatment of Share Capital and Share Premium as Unexplained Cash Credit:The primary issue was the treatment of share capital and share premium amounting to Rs. 4,60,00,000/- as unexplained cash credit under Section 68 of the Income Tax Act. The AO issued notices under Section 131 to the directors of the share applicant company and the directors of three subscribed companies to verify the genuineness, identity, and creditworthiness of the shareholders. None appeared before the AO, leading to a show-cause notice being issued. Due to the lack of response, the AO treated the entire share capital and premium as bogus and added it to the assessee’s total income. The CIT(A) upheld this addition.3. Adequacy of the Assessing Officer’s (AO) Investigation:The Tribunal noted that the AO did not conduct an independent and thorough investigation to disprove the assessee's claims. The AO's decision was primarily based on the non-appearance of the directors, without deeper scrutiny or further inquiry into the evidence provided by the assessee. The Tribunal highlighted that the AO failed to follow the guidelines and mandates set by the CIT(A) for conducting a detailed investigation into the identity, creditworthiness, and genuineness of the share subscribers.4. Compliance with Guidelines/Mandate by CIT(A):The Tribunal emphasized that the CIT(A) mechanically upheld the AO's findings without considering relevant laws, current legal positions, or previous judgments by the Tribunal that had attained finality. The Tribunal referenced similar cases, such as ITO vs. M/s Deepshika Distributors Pvt. Ltd. and Shriram Tie Up Ltd., where the Tribunal had remanded the matter back to the AO for fresh adjudication due to inadequate inquiry.Judgment Summary:The Tribunal set aside the orders of the authorities below, citing the need for a fresh assessment. It was determined that the AO did not provide adequate opportunity for the assessee to present evidence and did not conduct a thorough investigation as mandated. The Tribunal directed the AO to reassess the matter, ensuring compliance with the guidelines and mandates previously set forth, and to provide the assessee with sufficient opportunity to be heard.Conclusion:Both appeals (ITA No.561/Kol/2016 and ITA No.562/Kol/2016) were allowed for statistical purposes, with the matters remanded back to the AO for de novo assessment in accordance with the law and after giving the assessee adequate opportunity of being heard. The Tribunal’s decision was pronounced on 14.09.2018.