TaxTMI 
TaxTMI 
2024 (6) TMI 897
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....l NER, Guwahati/l0014/2013-14 dtd 30.12.2022 on the grounds mentioned below:- 1. Whether on the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition to the tune of Rs.2,25,00,000/- under the head of unexplained cash credits u/s 68 of the Income-tax Act, 1961 by not taking into consideration the facts that the source of Rs.2,25,00,000/- as raised by the assessee company in the form of issuing fresh shares during Financial Year 2011-12 was not explained by the assessee company during the course of assessment proceeding. 2. Whether on the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition to the tune of Rs. 2,25,00,000/- on the grounds that the wherever any sum is credited in the books of the assessee, the onus lied on the assessee to prove the identify, creditworthiness and genuineness of the such transactions in view of judicial pronouncements in the following case: a. CIT Vs. Precision Finance Pvt. Ltd. /208 ITR 463] 3. Whether on the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition to the tune of Rs. 2,25,00,000/- on the grounds that the a....
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....ance on the part of the assessee as required by the Ld. AO u/s. 68 of the Act, he observed that assessee has failed to establish the genuineness of share capital including share premium raised during the year. He thus, treated the amount of share capital including share premium as income of the assessee by holding it as unexplained credit in the books and completed the assessment. The said amount was added on account of non-submission of creditworthiness of the subscribers and genuineness of the transaction. 4.1. The impugned assessment order is passed by Income Tax Officer, Ward-9(2), Kolkata u/s. 143(3) dated 23.03.2015. In the demand notice issued u/s 156 of the Act on the assessee on completion of the assessment, in para 6 it is stated that "if you intend to appeal against the assessment u/s. 254/154/143(3)/144/264 order/fine/Penalty u/s 271(1)(c) you may present an appeal under Part of Chapter XX of the Income-tax Act 1961, to the Deputy Commissioner (Appeals) of Incometax/ Commissioner of Income-tax (Appeals)-3, Kolkata of this notice, in Form No. 35, duly stamped and verified as laid down in that form." Accordingly, assessee filed its first appeal before the Commissioner ....
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.... before the Gauhati Bench "DB" of the ITAT though the assessment order is passed by the Ld. AO at the office of ITO, Ward-9(2), Kolkata which does not fall with the jurisdiction of ITAT, Gauhati bench. 8. We are constrained to adjudicate on the present appeal for want of proper jurisdiction and also to transfer the present appeal from the Gauhati Bench of ITAT to the proper jurisdiction based on the location of AO passing the impugned order by taking into consideration the order of Hon'ble High Court of Bombay in the case of MSPL Ltd. Vs. PCIT & Ors in Writ Petition (L) No. 3856 of 2020 dated 21.05.2021. In this case, the Hon'ble Bombay High Court had an occasion to deal with the power to transfer pending appeal from one bench to another between the Tribunal, whether outside the headquarters in another state or from one bench to another bench within the same headquarters. 8.1. While dealing with this issue, Hon'ble Court analysed section 255 of the Act, more particularly sub-section (5) and (6) and arrived a a conclusion that sub-section (5) cannot be interpreted in such a broad manner to clothe the President of the Tribunal, the jurisdiction to transfer a pending appeal from....
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....ITAT Rules which have been framed in exercise of the powers conferred by subsection (5) of section 255 of the Act, to regulate the procedure of the Tribunal and the procedure of the Benches of the Tribunal. Hon'ble Court analysed the said Rule (4) of the ITAT Rules and found that as per sub-section 4(1), a Bench shall hear and determine such appeals and the applications made under the Act, as the President may, by general or special order direct. According to it, sub-rule (1) empowers the President to direct hearing of the appeal by a Bench by a general or special order. In reference to sub-rule (2), it stated that where there are two or more Benches of the Tribunal working at any head quarter; when there are multiple Benches in a headquarter, the President or, in his absence the Senior Vice President etc. may transfer an appeal or an application from one of such Benches to any other. According to the Hon'ble High Court, sub-rule (2) is more specific which deals with transfer of an appeal or application from one Bench to another Bench within the same head quarter. To explain, this Hon'ble Court gave an example as to "in Mumbai the number of benches is 12 and in Bangalore, the numbe....
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....or, in his absence the senior Vice President etc. may transfer an appeal or an application from one of such Benches to any other. Meaning thereby that it is a transfer of an appeal or an application from one Bench to another Bench within the same headquarters. For example, in Mumbai the number of Benches is twelve and in Bangalore, the number of Benches is three. Thus, this provision can be invoked to transfer an appeal from one Bench in Mumbai to another Bench in Mumbai or from one Bench in Bangalore to another Bench in Bangalore. But this provision cannot be invoked to transfer a pending appeal from one Bench under one, headquarter to another Bench in a different headquarter. 42. While on the Tribunal Rules, we may also refer to rules 13 and 28. Who may be joined as respondent in an appeal by the assessee is dealt with in rule 13. In an appeal by an assessee under sub-section (1) of section 253, the concerned Assessing Officer shall be made a respondent to the appeal. Concerned Assessing Officer would mean the Assessing Officer who had passed the assessment order from which the appeal to the Tribunal arises. As per rule 28, Tribunal has the power to remand an appeal to t....
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....DCIT Vs. Sudhir Kumar Gupta in IT(AA)A No. 26/Kol/2018 dated 06.09.2023. 8.6 Considering the judgment of the Hon'ble Supreme Court in the case of ABC Ltd. (supra) as well as the decision of Hon'ble High Court of Bombay in the case of MSPL Ltd. (supra), we find that the present appeal by the revenue is under improper jurisdiction, owing to the fact that impugned assessment order dated 23.03.2015 is passed by Ld. ITO, Ward-9(2), Kolkata. Accordingly, this present appeal is dismissed with the liberty to the Revenue to file a fresh appeal before the appropriate bench of the Tribunal having jurisdiction over the assessee along with petition for condonation of delay caused on this account. The period exhausted on account of filing the present appeal and its present disposal may be considered for condonation of delay in disposing the appeal, if filed by the revenue before the appropriate bench of ITAT having jurisdiction over the assessee. 9. In the result, appeal of the revenue is dismissed as indicated above. Order pronounced in the Court on 08. 01. 2024. ============= Document 1 SI. No. Name of Subscribers PAN No. of Paid- Shares up Share Premiu....