M/S. Prakash Ply Exim Pvt. Ltd., Kolkata vs Acit, C.C.-3(3), Kolkata, Kolkata on 10 April, 2019

Both these appeals are filed by the revenue. The cross-objections are filed by the assessee. These are directed against the separate but identical order of the Learned Commissioner of Income Tax (Appeals)- 21, Kolkata, (ld. CIT(A)) passed u/s. 250 of the Income Tax Act, 1961, (the 'Act'), dt. 29/04/2016, for the Assessment Years 2011-12 & 2012-13.

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IT(SS)A No. 97/Kol/2017 Assessment Year: 2011-12 IT(SS)A No. 98/Kol/2017 Assessment Year: 2012-13 Assessment Year :2011-12 Assessment Year :2012-13 M/s. Prakash Ply Exim Pvt. Ltd

4.1. On a query from the Bench, the ld. D/R submitted that, he is not disputing the fact that a notice of hearing was given by the ld. CIT(A) to the Assessing Officer but he is specifically disputing the admission of addition ground of appeal by the ld. CIT(A) without giving an opportunity to the Assessing Officer of being heard.

4.2. On merits, the ld. D/R submitted that, the addition was based on incriminating documents found during the course of search and that the ld. CIT(A) was not correct in observing and holding otherwise. He relied on the seized material marked as SBLP-02 (Page No. 19) and pointed out that an examination of these seized paper makes it clear that the names of the promoters OmPrakash Pandey, Satya Prakash Pandey and Ram IT(SS)A No. 97/Kol/2017 Assessment Year: 2011-12 IT(SS)A No. 98/Kol/2017 Assessment Year: 2012-13 Assessment Year :2011-12 Assessment Year :2012-13 M/s. Prakash Ply Exim Pvt. Ltd Prakash Pandey, clearly appear therein in short form and that they had given various amounts to accommodation entry operators and that the money was routed back by way of cheques to the assessee company. He further relied on the statements recorded u/s 132(4) of the Act. He pointed out that the Assessing Officer issued notice u/s 131 of the Act as well as u/s 133(6) of the Act to various share applicant companies and that the fact that they were returned unserved and argued that the addition under these circumstances made by the Assessing Officer was legal and the ld. CIT(A) was wrong in deleting the addition. He extensively referred to the statement recorded from Om Prakash Pandey which is placed at departmental paper book-1 pages 15-19 and specifically drew the attention of the Bench to the question no. 20, 21, & 23 as well as the statement of one Mr. Pawan Kumar Jain, who is an entry operator. He pointed out to question no. 10 of the statement of Mr. Pawan Kumar Jain and submitted that Mr. Jain has stated that certain agents had approached him on behalf of M/s. Prakash Ply Exim Pvt. Ltd. and he has given cheques after receiving cash. He further relied on the statement recorded from Shri Devesh Upadhyay, another entry operator, who in reply to a question stated that M/s. Prakash Ply Exim Pvt. Ltd. has taken accommodation entries.

10.2.2. Similar is the finding of the Assessing Officer for the Assessment Year 2012-13.

11. Before us, the ld. D/R could not point out any particular paper or document which is incriminating material seized during the course of search, based on which the addition in question was made. In fact the Assessing Officer has not referred to any statement recorded from any other person. It was only the ld. D/R, who brought out before this Bench some part of the statements from certain persons who are alleged to be entry providers. In these copies filed before us, no signature of the person giving the statements or the persons who has administered on oath appears, copies of the original IT(SS)A No. 97/Kol/2017 Assessment Year: 2011-12 IT(SS)A No. 98/Kol/2017 Assessment Year: 2012-13 Assessment Year :2011-12 Assessment Year :2012-13 M/s. Prakash Ply Exim Pvt. Ltd statement in full has not been filed or brought on record by the Assessing Officer. These statements from Om Prakash Pandey, Suresh Kumar Daruka, Pawan Kumar Jain, Devesh Upadhyay, were not relied upon by the Assessing Officer in his assessment order. The additions were not based on any of these statements. None of the copies of these statements are brought on record or furnished to the assessee, leave alone giving the assessee an opportunity of cross-examination. Hence these statements cannot be the basis of supporting the addition made by the Assessing Officer in both these assessment years. In the case of addition of agricultural income, no argument was made by the ld. D/R that the same is based on any material found during the course of search.

16. In the result, appeals of the revenue and the cross-objections of the assessee for the both the Assessment Years are dismissed.

Kolkata, the 10th day of April, 2019.

        Sd/-                                                               Sd/-
[S.S. Viswanethra Ravi]                                             [J. Sudhakar Reddy]
Judicial Member                                                     Accountant Member
Dated : 10.04.2019
{SC SPS}

                                                                                   IT(SS)A No. 97/Kol/2017
                                                                                    Assessment Year: 2011-12
                                                                                   IT(SS)A No. 98/Kol/2017
                                                                                    Assessment Year: 2012-13

                                                                                    Assessment Year :2011-12

                                                                                    Assessment Year :2012-13
                                                                              M/s. Prakash Ply Exim Pvt. Ltd


Copy of the order forwarded to:
1. M/s. Prakash Ply Exim Pvt. Ltd
67/10, Strand Road
Kolkata - 700 006

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