TaxTMI 
TaxTMI 
2011 (9) TMI 546
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.... investors. Since he had some doubts about the genuineness of these transactions, he called upon the assessee to furnish the details of the investors and the particulars of receipts, etc. The assessee failed to supply any information in spite of various opportunities given because of which, the AO made addition of Rs. 2,25,57,000/-, as on account of share capital and share application money not proved. 3. Against that order, the assessee filed appeal before the CIT (A), the CIT (A) set aside the assessment order vide its decision dated 28.12.1998 directing the AO to frame de novo assessment after giving opportunity to the assessee as the assessee had produced some evidence before the CIT (A). On the basis of which the evidence produced, the following observations were made by the CIT(A) while remanding the case: "........one person, Sandeep Thapar figures in the account opening forms of all the three companies figuring here. The investing companies have one more person listed as a director. The antecedents of these persons to be verified and their exact role determined. The intercompany transactions have to closely be analysed to arrive at the true state of affa....
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....e assessee to furnish requisite information/documents with directions to the AO to make afresh assessment. 6. It is under these circumstances, the present appeal is filed by the Department with the grievance that the conduct of the assessee does not warrants any such leniency to be given to him when there was total non-corporation by the assessee on earlier occasions. 7. Notice in this appeal was issued, which could not be served upon the respondent by normal process. Accordingly, the Revenue was permitted to serve the assessee by publication in a newspaper, which was duly done in spite thereof nobody appeared. The respondent was proceeded ex parte and following substantial question of law was framed on 19.8.2011: "Whether the orders of remand as passed by the ITAT is justified under the pretext to meet end of justice or in the compliance of principle of natural justice?" 8. Matter was listed today for arguments. We have heard Mr. Sanjeev Sabharwal, learned counsel appearing for the Revenue. It is submitted that the order of the Tribunal in the facts and circumstances of the case, is not correct. Mr. Sabharawal highlights the following glarin....
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.... the assessee in spite of the fact that two innings were given to the assessee and in both the innings, number of opportunities were given. Some of observations of the Tribunal, in this behalf, are as under: "In these circumstances, the assessee for one reason or the other failed to furnish the details required regarding the share capital and share application money to the Assessing Officer. As a result in the first round of the assessment, on account of sheer non-cooperation on the part of the assessee by projecting the investment companies to be unapproachable, the assessee showed incapacity in providing and filing the copies of bank accounts as well as the copies of the final accounts of both the investment companies...... xxx xxx xxx .......As a result, the assessee completely succeeded in its attempt for providing the information which suited it but thwarted the attempt of the Assessing Officer in examination/establishing with cogent evidence the creditworthiness of the investing companies and the genuineness of the transaction................ xxx xxx xxx From the order of the CIT (A), it is evident that by sending the matter to the Assessing Officer, he laid emphasi....
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.... the first time before the CIT (A) during the 2nd inning or the appellate proceedings. 26. Thus, it stands established that in fact the assessee produced only the information/documents/person for recording statement called for by the Assessing Officer which suited the interest of the assessee and intentionally withheld that information which did not suit the interest of the assessee. Even Shri Sandeep Thappar, Director, as directed by the CIT (A) in the 1st appellate order to be examined by the Assessing Officer for testing the genuineness of the transaction was never produced by the assessee before the Assessing Officer, though his active involvement in the affairs of assessee company as well as the investing companies cannot be ruled out from the facts appearing on record and also in view of the finding recorded by the CIT (A) in the first appellate order." 12. We fail to understand that when such a conduct of the assessee was noted by the Tribunal itself, where was the occasion to give another opportunity to the assessee. Interestingly, the Tribunal was conscious of this fact, which is clear from the reading of Para 35 of the impugned order. In this para, the....