TaxTMI 
TaxTMI 
2018 (11) TMI 519
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....o Ld. AR, was in violation of the principles of natural justice in having passed the ex parte order qua the assessee without affording adequate opportunity of being heard to the assessee. 3. At the outset, ld. Counsel for the assessee submitted before us that the Ld. CIT(A) did not consider that the AO being influenced by the order of Ld. CIT passed u/s. 263 of the Act made the re-assessment without affording proper opportunity of being heard to the assessee and ignoring all material evidences which were already on record submitted during assessment proceedings and hence the addition of Rs. 6,40,85,000/- u/s. 68 of the Act sustained by him is erroneous and an arbitrary action. Hence, he urged before the bench to set aside the order of Ld....
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....f any." 4. However, we note that AO's investigation as per his own words as stated as under: "3. In the light of aforesaid Order passed u/s 263 of I.T. Act by Ld. CIT, Kol-II, Kolkata, a formal notice u/s 142(1) of the Income Tax Act, 1961 and questionnaire was issued and served upon the assessee on 16.12.2013, asking it to produce and submit certain details and documents to substantiate its Return of Income. None appeared in response to the said notice. 4. It was noticed the assessee during the year has raised a paid-up share capital of Rs. 6.40 crores by issuing equity shares including premium. To verify the genuineness of the said transactions and to verify the identity and creditworthiness of the shareholders of the....
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.... receive any such notice. We note that though the AO has stated that he has issued summons u/s. 131 of the Act, no dates of issue of summons have been mentioned in the assessment order. We note that no other investigation was conducted by AO is discernable from the order. So, we find force in the submission of the Ld. AR that no proper opportunity before the AO during the reassessment proceedings because only one date was fixed for hearing on 16.12.2013 to Assessee Company. We note that since the directors of Assessee Company could not appear before the AO in pursuance of the summons u/s. 131 (this fact of summons issued is contested by assessee), the AO saddled the addition by drawing adverse inference is per-se without application of mind....
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....n 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." 6. In similar case this Tribunal in ITA No.393/Kol/2016 in M/s.....
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....urt in the case of CIT Vs. Jansampark Advertising & Marketing Pvt. Ltd. in ITA No. 525/2014 dated 11.03.2015 wherein after noticing inadequate enquiry by authorities below have held as under: "41. We are inclined to agree with the CIT(Appeals), and consequently with ITAT, to the extent of their conclusion that the assessee herein had come up with some proof of identity of some of the entries in question. But, from this inference, or form the fact that the transactions were through banking channels, it does not necessarily following that satisfaction as to the creditworthiness of the parties or the genuineness of the transactions in question would also have been established. 42. The AO here may have failed to discharge his ....