IN INCOME TAX APPELLATE TRIBUNAL , BENCH KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ITA No.1296/Kol/2016 (Assessment Year 2012-13) ITO, Ward-12(2), Kolkata Vs. M/s Dulcet Vyapar Pvt. Ltd. 18, Parasar Road, Lake Market, Kolkata-700029. PAN/GIR No. AACCD6238L (Assessee) (Revenue) Assessee by Shri Pradip Kr. Majumder, Addl. CIT (DR) Respondent by Shri S. Jhajharia, AR Date of Hearing 0/07/2019 Date of Pronouncement 28/08/2019 ORDER Per Dr. A. L. Saini, AM captioned appeal filed by Revenue, pertaining to assessment year 2012-13, is directed against order passed by Commissioner of Income Tax (Appeal)-4, Kolkata, which in turn arises out of assessment order passed by Assessing Officer u/s 144/143(3) of Income Tax Act, 1961 (in short Act ) dated 13.03.2015. 2.At outset itself, ld counsel for assessee submitted that Assessing Officer took adverse view against assessee since assessee company during assessment proceedings did not respond to summon u/s 131 of Act. Besides, share subscribing companies also did not respond to notice u/s 133(6) of Act. Therefore, three ingredients of section 68 of Act, namely: identity, genuineness and creditworthiness of share capital premium received from share subscribing companies have not been proved/satisfied. M/s Dulcet Vyapar Pvt. Ltd. ITA No.1296/Kol/2016 Assessment Year:2012-13 3. Ld Counsel for assessee explained reasons before Bench about non-compliance of notices under section 133 and 133(6) of Act. He stated that director of share subscribing companies as well as assessee company were out of station therefore, they could not appear before AO on date of compliance. Even opportunity given, assessee is ready to comply. We note that since, it is reasonable cause, which prevented assessee not to make compliance of notices under section 131/ 133(6) of Act, therefore, we are of view that assessee did not get proper opportunity to represent its case at assessment stage. Hence, we are of view that one more opportunity should be given to assessee to plead his case before assessing officer. Ld DR for Revenue fairly agreed with submission of ld Counsel. Therefore, we note that main grievance of assessee is that no proper opportunity was given to assessee to discharge onus casted upon it as required in section 68 matters. So, we find force in submission of Ld. Counsel andtherefore, issue may be remitted back to file of assessing officer for fresh assessment. For that we rely on judgment of Hon ble (three judge bench) of Hon ble Supreme Court in Tin Box Company Vs. CIT (2001) 249 ITR 216 (SC) wherein it was held as follows: It is unnecessary to go into great detail in these matters for there is statement in order of Tribunal, fact-finding authority, that reads thus : We will straightaway agree with assessee s submission that Income-tax Officer had not given to assessee proper opportunity of being heard. That assessee could have placed evidence before first appellate authority or before Tribunal is really of no consequence for it is assessment order that counts. That order must be made after assessee has been given reasonable opportunity of setting out his case. We, therefore, do not agree with Tribunal and High Court that it was not necessary to set aside order of assessment and remand matter to assessing authority for fresh assessment after giving to assessee proper opportunity of being heard. Two questions were placed before High Court, of which second question is not pressed. first question reads thus : 1. Whether, on facts and in circumstances of case, Tribunal was justified in not setting aside assessment order in spite of Pa g e | 2 M/s Dulcet Vyapar Pvt. Ltd. ITA No.1296/Kol/2016 Assessment Year:2012-13 finding arrived at by it that Income-tax Officer had not given proper opportunity of hearing to assessee ? In our opinion, there can only be one answer to this question which is inherent in question itself : in negative and in favour of assessee. appeals are allowed. order under challenge is set aside. assessment order, that of Commissioner (Appeals) and of Tribunal are also set aside. matter shall now be remanded to assessing authority for fresh consideration, as aforestated. 4. In view of above facts and in light of Hon ble Supreme Court s decision in Tin Box Company (supra), we think it fit and proper to remit this issue back to file of Assessing Officer. ld. DR for revenue did not have objection if matter is remitted back to file of Assessing Officer. Therefore, we set aside order of ld. CIT(A) and remit matter back to file of Assessing Officer for de novo adjudication, and to decide matter in accordance to law after giving opportunity of being heard to assessee. 5. In result, appeal of Revenue is treated to be allowed for statistical purposes. Order pronounced in Court on 28.08.2019 Sd/- Sd/- (A.T. VARKEY) (A.L.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date 28/08/2019 (SB, Sr.PS) Copy of order forwarded to 1. ITO, Ward-12(2), Kolkata 2. M/s Dulcet Vyapar Pvt. Ltd. 3. C.I.T(A)- 4. C.I.T.- Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata. 6. Guard File. True copy By Order Assistant Registrar ITAT, Kolkata Benches M/s Dulcet Vyapar Pvt. Ltd. ITA No.1296/Kol/2016 Assessment Year:2012-13 ITO, Ward-12(2), Kolkata v. Dulcet Vyapar Pvt. Ltd