TaxTMI 
TaxTMI 
2018 (11) TMI 132
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....shareholders to whom the shares were allotted along with the premium and the notice u/s. 133(6) dated 29.11.2013 was issued by the AO to the shareholders and having received the replies from the shareholders, thereafter the AO issued notice u/s. 131 of the Act on 13.03.2014 to the directors of the assessee company for recording their statement on oath. However, since the director of assessee company did not turn up, the AO added the entire share application money along with the premium to the tune of Rs. 91,35,00,000/- u/s. 68 of the Act. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) who confirmed the action of AO. Aggrieved, assessee is before us. 3. According to Ld. AR, the assessee company since was incorporated only on 15.09.2010 as a Private Ltd. Company under the Companies Act, 1956 and this assessment year being the first year of its operation earned gross income of Rs. 59,491/- from commodities trading profit through the MCX. The company was incorporated with authorized share capital of Rs. 2,00,00,000/- divided into 2,00,00,000 equity shares of Rs. 1 each. According to him the issued/subscribed paid up share capital was Rs. 1,41,35,000/- divided into....
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....n Kumar Family Trust 10 15,00,000 15,00,000 15,00,000 Mona Jagatrarmka 7 10,00,000 10,00,000 10,00,000 Newage Vinimay Pvt Ltd 6 8,00,000 8,00,000 7,92,00,000 8,00,00,000 Gaurav Vinimay Pvt Ltd. 4 4,50,000 4,50,000 4,45,50,000 4,50,00,000 Gujarat NRE Energy Resources Ltd. 7 8,60,000 8,60,000 8,51,40,000 8,60,00,000 Critical Mass Multilink Ltd 5 7,25,000 7,25,000 7,17,75,000 7,25,00,000 Madhur Coal Mining Pvt. Ltd 3 3,00,000 3,00,000 2,97,00,000 3,00,00,000 Wonga Traders Pvt Ltd 14 20,00,000 20,00,000 19,80,00,000 20,00,00,000 Mahanidhi Vyapaar Pvt Ltd. 14 20,00,000 20,00,000 19,80,00,000 20,00,00,000 Bhachau Traders Pvt Ltd. 14 20,00,000 20,00,000 19,80,00,000 20,00,00,000 Total 100 1,41,35,000 1,41,35,000 90,43,65,000 91,85,00,000 6. The Ld. AR pointed out that the assessee company and all its share applicant companies are group concerns and the individual share applicants are either common directors or managers of the group to manage day to day activities of the assessee c....
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....r attention was drawn to the following table which will give a picture of the funds received by the assessee company in the form of share capital from various share applicants: SL.No. Name of the Company Amount (Rs in crores) 1. Bhachau Traders Pvt Ltd (BTPL) 20.00 2. Critical Mass Multilink Ltd (CMM) 7.25 3. Gaurav Vinimay Pvt Ltd (GVPL) 4.50 4. Gujarat NRE Energy Resources Ltd (GNERL) 8.60 5. Madhur Coal Mining Pvt Ltd (MCMPL) 3.00 6. Newage Vinimay Pvt Ltd (NVPL) 8.00 7. W onga Traders Pvt Ltd (WTPL) 20.00 8. Mahanidhi Vyapaar Pvt Ltd (MVPL) 20.00 Total 91.35 11. It was also brought to our notice that during the course of assessment proceedings in response to notice dated 29.07.2013 u/s. 142(1) served by the Ld. A.O., the assessee company vide reply dated 12.08.2013 submitted the following documents: • Brief note in respect of business activities of the company • List of shareholders with their names, address and PAN • Copies of share application received from shareholders • Copy of Form -2 (Return of Allotment) filed with Regist....
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.... • In case of change of Director, appearance shall have to be made with the previous director 15. It was brought to our notice that the summons alleged to have been issued on 13.03.2014 was actually served in the office of respective company shareholder on 19.03.2014 afternoon with a direction to make appearance on 20.03.2014. Further, since the said notice u/s. 131 of the Act was served on 19.03.2014, it was not possible for the directors to prepare with all the documents within a short span of half a day and represent before the A.O. on 20.03.2014. In response to the said notice, the directors of the share applicant companies vide letter dated 20.03.2014 submitted that details such as number of shares applied and allotted, details of payments made along with Bank Statement, Balance Sheet, profit & Loss Account and IT Return Acknowledgment for A.Y. 2011-12 were already provided vide letter dated 23.12.2013. 16. It was pointed out that after the said reply dated 20.03.2014, the Income Tax Officer issued no further notice to the directors of the share applicant companies to comply with the summon u/s 131 of the Act or to personally represent before the A.O. After e....
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.... was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at by it that the Incometax Officer had not given a proper opportunity of hearing to the assessee ?" In our opinion, there can only be one answer to this question which is inherent in the question itself : in the negative and in favour of the assessee. The appeals are allowed. The order under challenge is set aside. The assessment order, that of the Commissioner (Appeals) and of the Tribunal are also set aside. The matter shall now be remanded to the assessing authority for fresh consideration, as aforestated." 18. We also note that the Hon'ble Delhi High Court in the case of CIT Vs. Jansampark Advertising & Marketing Pvt. Ltd. in ITA No. 525/2014 dated 11.03.2015 wherein....