IN INCOME TAX APPELLATE TRIBUNAL KOLKATA B BENCH, KOLKATA (Before Sri J. Sudhakar Reddy, Accountant Member & Sri S.S. Godara, Judicial Member) ITA No. 478/Kol/2019 Assessment Year: 2012-13 Tulsa Mercantiles (P) Ltd............ .............Appellant Sevoke Road Shanti Square Building Siliguri 734001 [PAN : AAACT8444J] Deputy Commissioner of Income Tax, Circle-2, Siliguri.........Respondent Appearances by: Shri Subash Agarwal, Advocate, appeared on behalf of assessee. Shri Ranu Biswas, Addl. CIT Sr. D/R, appearing on behalf of Revenue. Date of concluding hearing : September 19th, 2019 Date of pronouncing order : October 1st, 2019 ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by assessee is directed against order of Learned Commissioner of Income Tax (Appeals) - Siliguri, (hereinafter ld.CIT(A) ), passed u/s. 250 of Income Tax Act, 1961 (the Act ), dt. 15/01/2019, for Assessment Year 2012-13. 2. assessee is company and during previous year it raised share capital amounting to Rs. 2,00,00,000/-, including share premium. assessing officer made addition u/s 68 of Act, of this amount for reason that there was non compliance on part of assessee company, and share applicants/holders, directors, of company, to notices issued u/s 131 of Act, even after repeated opportunities, and that genuineness of credit could not be proved. Aggrieved assessee carried matter in appeal. ld. first appellate authority passed and ex-parte order and confirmed addition made by Assessing Officer u/s 68 of Act. Aggrieved assessee is in appeal before us. 3. We have heard rival contentions. On careful consideration of facts and circumstances of case, perusal of papers on record, orders of authorities below as well as case law cited, we hold as follows:- 2 ITA No. 478/Kol/2019 Assessment Year: 2012-13 Tulsa Mercantiles (P) Ltd 4.1. Before us, ld. Counsel for assessee submits that ld. CIT(A) has passed ex-parte order. He further submitted that A Assessing Officer has h not given assessee adequate opportunity and had also not examined all details filed by assessee. He submitted that Assess Assessing ing Officer issued summons u/s 131 of Act to various persons at wrong addresses and hence they could not be served on them them. He prayed that issue may be remanded back to file of Assessing Officer for fresh adjudication with direction to pr provide ovide adequate opportunity to assessee. asses 4.2. ld. D/R, /R, though not leaving his ground ultimately submitted that matter may be set aside to file of Assessing Officer for fr fresh esh adjudication, in accordance with law. 5. After hearing both sid sides es we are of opinion that this case has to be restored to file of Assessing Officer. We find that this bench of ITAT in all such cases has been restoring matter to file of Assessing Officer for fresh adjudication. 5.1. In case of Sriram Tie Up Pvt. Ltd. supra at para 6 and 7 held as follows: 6. In case of M/s. Sukanya Merchandise Pvt. Ltd. vs ITO (ITA 291/Kol/2016 dated 15.12.2017) cited by learned counsel for assessee, similar view has been taken by Co-ordinate ordinate Bench of this Tribunal and similar issue relating to addition made under section 68 on account of share capital contribution by treating same as unexplained cash credits is restored back by Tribunal to file of A.O. iin n almost similar situation after recording its observations / findings as under: We note that AO pursuant to order of Ld. CIT had taken note of directions of Ld. CIT and issued notice u/s. 142(1) dated 16.08.2013 and has acknowledged that he assessee had furnished copy of final account, I. T. Acknowledgement, bank statement for relevant period evidencing receipt of share application money from share applicants. Thereafter, AO makes certain inferences based on list ooff shareholders and taking note of bank statement furnished by assessee. We note that after initial notice dated 16.08.2013, thereafter AO had issued notice on 26.02.2014 which has been reproduced at page 3 of reassessment order, wh wherein erein AO required directors of assessee company to be present before him on 06.03.2014. However, according to Ld. AR, assessee received notice only on 07.03.2014 and thereafter, assessee requested AO to provide another opportunity ity of hearing vide its letter dated 20.03.2014. Thereafter, AO fixed date of hearing on 12.03.2014 vide notice dated 10.03.2014. So, according to assessee company since directors were not in station till 23.03.2014, Ld. AR had requestedted for adjournment till that time. Though AO has stated 3 ITA No. 478/Kol/2019 Assessment Year: 2012-13 Tulsa Mercantiles (P) Ltd that he has issued summons on 24.03.2014 to assessee company to produce directors of company before him on 26.03.2014, assessee company contended that it has not received said summon and, therefore, could not make personal appearance. AO has drawn adverse conclusion basically because of non-appearance appearance of directors of assessee company and that of shareholder companies. We note that initially AO started enquiry on 16.08.2013 which was complied by assessee by submitting documents which has been acknowledged by AO. Thereafter, enquiry was started only at fag end of February 2014 and assessee company had informed AO that their directors irectors were out of station till 23.03.2014. In light of aforesaid facts, we are of opinion that assessee did not get fair opportunity to present evidences before AO so, there was lack of opportunity as aforesaid, therefore, it has to go back to AO. 8. We also note that Ld. Cit while setting aside order of AO which was passed u/s. 147/143(3) of Act, Ld. CIT gave certain guidelines to follow for conducting deep investigation. We also note that similarly placed as assessees had challenged exercise of revisional jurisdiction u/s. 263 of Act before this Tribunal in those cases one of it of Subha Lakshmi Vanijya Pvt. Ltd. Vs. CIT in ITA No. 1104/Kol/2014 dated 30.07.2015, wherein Tribunal was pleased to upholdd order passed by Ld. CIT passed u/s. 263 of Act, which we learn to have been confirmed by Hon ble jurisdictional High Court and SLP preferred against decision of Hon ble jurisdictional High Court has been dismissed by Hon b Hon ble le Supreme Court. Therefore, similar order of Ld. CIT passed u/s. 263 of Act has been upheld. We note that AO while giving effect to CIT s 263 order has noted that assessee company has in fact furnished documents sought by him to h his is notice u/s. 142(1) of Act. However, AO took adverse view against assessee on plea that directors of assessee company and share subscribing companies had not appeared before him on 26.03.2014 and t after taking note that non nonee appeared on 26.03.2014 concluded on same day 26.03.2014 that entire amount of share application money received along with premium amounting to Rs.8,06,00,000/ Rs.8,06,00,000/- which has remained unexplained and added to income of assessee. We also note that at Ld. CIT after looking into pernicious practice of converting black money into white money has given guidelines to AO as to how investigation should be conducted to find out source of source. Since similar order of Ld. CIT passed u/s. 263 of Act has been upheld by Tribunal as well as by Hon ble Calcutta High Court as well as SLP has been dismissed by Hon ble Supreme Court, similar order of Ld. CIT has to be given effect to as directed by Ld. CIT. We tatake ke note that Ld. CIT with his experience and wisdom has given certain guidelines in backdrop of black money menace should have been properly enquired into as directed by him. AO ought to have followed investigating guidelines and method as directed by him to unearth facts to determine whether identity, genuineness and creditworthiness of share subscribers. We note that Hon ble Supreme Court in three judges bench in case of Tin Box, (supra), has held that since there was lack of opportunity to assessee at assessment stage itself, assessment needs to be done afresh and thereby reversed Hon ble High Court, Tribunal and CIT(A) s orders and remanded matter back to AO for fresh assessment. So, since there was lack of opportunity as aforestated it has to go back to AO. We also 4 ITA No. 478/Kol/2019 Assessment Year: 2012-13 Tulsa Mercantiles (P) Ltd note that Hon ble Delhi High Court in case of CIT Vs. Jansampark Advertising & Marketing Pvt. Ltd. in ITA No. 525/2014 dated 11.03.2015 wherein after noticing inadequate enq enquiry uiry by authorities below have held as under: 41. We are inclined to agree with CIT(Appeals), and consequently with ITAT, to extent of their conclusion that assessee herein had come up with some proof of identity of some of entries in ququestion. estion. But, from this inference, or form fact that transactions were through banking channels, it does not necessarily following that satisfaction as to creditworthiness of parties or genuineness of transactions in question would also lso have been established. 42. AO here may have failed to discharge his obligation to conduct proper inquiry to take matter to logical conclusion. But CIT(Appeals), having noticed want of proper inquiry, could not have closed chapter simply by allowing appeal and deleting additions made. It was also obligation of first appellate authority, as indeed of ITAT, to have ensured that effective inquiry was carried out, particularly in fact of allegations of Revenue that account statements reveal uniform pattern of cash deposits of equal amounts in respective accounts preceding transactions in question. This necessitated detailed scrutiny of material submitted by assessee in response to notice under er Section148 issued by AO, as also material submitted at stage of appeals, if deemed proper by way of making or causing to be made 'further inquiry in exercise of power under Section 250(4). His approach not having been adopted, imp impugned ugned order of ITAT, and consequently that of CIT(Appeals), cannot be approved or upheld." In view of aforesaid order and in light of Hon ble Supreme Court s decision in Tin Box Company (supra) and taking into consideration fact order off Ld. CIT passed u/s. 263 of Act in similar cases being upheld up to level of Apex Court, and taking note of Hon ble Delhi High Court s order in Jansampark Advertising & Marketing Pvt. Ltd. (supra), we set aside order of Ld. CIT(A) and remand matter back to file of AO for de novo assessment and to decide matter in accordance to law after giving opportunity of being heard to assessee. 7. We, therefore, consider it fair and proper and in interest of justice to set aside de orders of authorities below on issue in dispute and restore matter to file of A.O. to decide same afresh after giving assessee proper and sufficient opportunity of being heard and after taking into consideration entir entiree evidence already available on record as well as other documentary evidence which assessee may choose to file in support of its case on issue. 6. Kolkata Bench of ITAT has passed similar order in many cases on same issuee of additions m made u/s 68 of share capital and has set aside assessment to file of AO for fresh adjudication adjudication. Assessing Officer may examine evidence already on record as well as other documenta documentary ry evidences eviden which 5 ITA No. 478/Kol/2019 Assessment Year: 2012-13 Tulsa Mercantiles (P) Ltd assessee may file before him and adjudicate issue in accordance with directions given by ld. CIT in order passed/s 263 of Act, in all such cases. 7. Keeping in view totality of facts and circumstances of case and also orders of Co-ordinate ordinate Bench of Tribunal in similar matters, we set aside this issue to file of AO for fresh adjudication in accordance with law, after giving assessee adequate opportunity of being heard. 8. In result, appeal of assessee iss allowed for statistical purposes. Kolkata, 1st day of October, 2019. Sd/- Sd/- [S.S. Godara] [J. J. Sudhakar Reddy] Reddy Judicial Member Accountant Member Dated : 01.10.2019 {SC SPS} Copy of order forwarded to: 1. Tulsa Mercantiles (P) Ltd Sevoke Road Shanti Square Building Siliguri 734 001 2. Deputy Commissioner of Income Tax, Circle Circle-2, Siliguri 3. CIT(A)- 4. CIT- , 5. CIT(DR), Kolkata Benches, Kolkata. True copy By order Assistant Registrar ITAT, Kolkata Benches Tulsa Mercantiles (P) Ltd. v. Deputy Commissioner of Income-tax, Circle-2, Siliguri