M/s. Accord Metal India Pvt. Ltd., Faridabad V. ITO, New Delhi

CO 193/DEL/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7648 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 17-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 15-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C SINGHAL
• Assessee Lawyers: PIRTHI LAL
• Keywords: Corroborative evidences
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: A NEW DELHI BEFORE SHRI AD JAIN, JM AND SHRI J.SUDHAKAR REDDY, A.M. ITA NO:4424/DEL/2010 ASSESSMENT YEAR : - 2007-08 ITO, WARD 1(2) VS. M/S ACCORD METAL INDIA P.LTD. NEW DELHI WZ-1661, NANGAL RAYA NEW DELHI 110 046 PAN: : AAECA 2141 D A N D C.O. NO. 193/DELHI/2011 (IN ITA NO.4424/D EL/2010) ASSESSMENT YEAR: 2007-08 M/S ACCORD METAL (I) P.LTD. VS. ITO, WARD 1(2) NEW DELHI NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PIRTHILAL, SR.D.R. RESPONDENT BY : SHRI K.C.SINGHAL, ADV. & CHARITRA GUPTA, C.A. O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGA INST THE ORDER OF THE LD.CIT(A) DT.17.8.2010 PERTAINING TO THE ASSESS MENT YEAR 2007-08. THE CROSS OBJECTION IS FILED BY THE ASSESSEE. 2 2. THE SOLE ISSUE IN DISPUTE IS AN ADDITION MADE UN DER SECTION 68 OF THE INCOME TAX ACT, 1961 OF THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE FROM SIX COMPANIES. THE LIST IS AS FOLLOW S. SL. NO. NAME ADDRESS NO. OF SHARES AMOUNT (RS.) 1. ADEQUATE TRANSPORT & TOURS LTD. 311, D-5, AVADH COMPLEX, DELHI 1,00,000 10,00,000 2. CJ EXIM P.LTD. C-74, KIRTI NAGAR DELHI 3,00,000 30,00,000 3. LIFELINE HF DEVELOPMENT CO.LTD. 311, D5, AVADH COMPLEX DELHI 1,20,000 12,00,000 4. STANDARD AIR TRAVEL SERVICES P.LTD. E-10, B JAWAHAR PARK, LAXMI NAGAR, DELHI 92 1,20,000 12,00,000 5. GRAIN TECH ENGINEERS P.LTD. (SHARE APPLICATION MONEY) 4/9, BHOLA NATH NAGAR, SHAHDARA, DELHI 10,00,000 6. ANNI SHOES P.LTD. (SHARE APPLICATION MONEY) H 23, DOUBLE STOREY, LAJPAT NAGAR, NEW DELHI 10,00,000 3. WE HAVE HEARD MR.PIRTHILAL, LD.SR.D.R. ON BEHALF OF THE REVENUE AND MR KC SINGHAL, ADVOCATE ON BEHALF OF THE ASSESS EE. 4. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRC UMSTANCES OF THE CASE, ON PERUSAL OF THE RELEVANT MATERIAL ON RECORD AND VARIOUS CASE LAWS CITED, WE HOLD AS FOLLOWS.:- 5. BOTH THE PARTIES HAVE RELIED UPON A NUMBER OF CA SE LAWS IN THEIR SUPPORT. BEFORE WE DWELVE INTO THE ISSUE AS TO WHI CH CASE LAW APPLIES, TO THE FACTS, WE CONSIDER THE TYPE OF EVIDENCES THAT H AVE BEEN PRODUCED BY THE ASSESSEE. THESE ARE AS FOLLOWS:- 3 I. COPIES OF CERTIFICATE OF INCORPORATION OF SHARE APPLICANT COMPANIES; II. COPIES OF SHARE APPLICATION FORMS FROM ALL PART IES; III. COPIES OF RESPECTIVE BOARD RESOLUTIONS FOR SUB SCRIBING TO SHARES OF ASSESSEE COMPANY; IV. COMPLETE DETAILS OF SHARE APPLICANT COMPANIES A VAILABLE WITH ROC; V. COPIES OF RETURNS IN FORM NO.2 FILED WITH ROC IN FORMING THE ALLOTMENT OF SHARES TO SHARE APPLICANT COMPANIES; VI. CONFIRMATION OF ACCOUNT FROM ALL PARTIES; VII. INDEPENDENT CONFIRMATIONS FROM PARTIES; VIII. AFFIDAVITS OF THE DIRECTORS OF ALL PARTIES; IX. COPY OF ITR ALONG WITH PAN OF ALL PARTIES RELAT ING TO ASSESSMENT YEAR 2007-08; X. LATEST COPIES OF ITRS I.E. ASSESSMENT YEAR 2009- 10 OF SHARE APPLICANTS SHOWING SAME ADDRESS; XI. COPY OF BALANCE SHEET OF ALL PARTIES AS ON 31.3 .2007; XII. COPY OF BANK ACCOUNT OF THE ASSESSEE EVIDENCIN G THE PAYMENTS BY CHEQUES; XIII. COPIES OF BANK ACCOUNT OF SHARE APPLICANTS AS SUPPORTING EVIDENCE OF PAYMENT FROM THEIR RESPECTIVE BANK ACCOUNTS TO THE ACCOUNT OF THE ASSESSEE COMPANY; LETTER DT. 25.6.2010 TO THE ITO REQUESTING TO MAKE ENQUIRY REGARDING SHARE APPLICANTS THROUGH THEIR RESPECTIVE ITOS; COPIES OF LETTERS DIRECTLY WRITTEN BY THE SHARE APP LICANTS TO THE ITO CONFIRMING THEIR ADDRESSES. 6. ON PERUSAL OF THESE EVIDENCES, WE CONCLUDE THAT THE FIRST APPELLATE AUTHORITY WAS RIGHT IN HOLDING THAT THE ASSESSING O FFICER WAS WRONG IN IGNORING THE EVIDENCES FILED BY THE ASSESSEE SUCH A S COPY OF INCOME TAX RETURNS CONTAINING PAN NUMBERS, ROC CERTIFICATES, B ANK STATEMENTS ETC. AS THESE PROVE THE IDENTITY OF THE INVESTING C OMPANIES. HE WAS RIGHT IN HOLDING THAT ONCE THE IDENTITY OF THE INVESTING COMPANY STANDS PROVED, THEN NO ADDITION CAN BE MADE UNDER SECTION 68 OF TH E INCOME TAX ACT, 1961 IN VIEW OF THE JUDGEMENT OF HONBLE SUPREME CO URT IN THE CASE OF CIT VS. LOVELY EXPORTS P.LTD. 216 CTR (SC) 195. TH E ARGUMENT OF THE LD.D.R. THAT THIS JUDGEMENT OF HONBLE SUPREME COUR T IS NOT BINDING AS 4 IT IS A DISMISSAL OF AN SLP, IS AGAINST THE PROPOSI TION LAID DOWN BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. D WARKADHISH INVESTMENT P.LTD. 330 ITR 298 (DELHI). AS WE HAVE APPLIED THE RATIO LAID DOWN BY THE APEX COURT, TO THE FACTS OF THE CASE, WE DO NOT DEA L WITH THE NUMEROUS TRIBUNAL DECISIONS AND HIGH COURT DECISIONS SOUGHT TO BE RELIED UPON BY THE LD.D.R. 7. IN VIEW OF THE QUALITY OF EVIDENCE SUBMITTED BY THE ASSESSEE, IN SUPPORT OF THE GENUINENESS OF SHARE APPLICATION MON EY OF THE ASSESSEE, AND IN VIEW OF THE FACT THAT THE ASSESSING OFFICER DOES NOT HAVE ANY MATERIAL OR EVIDENCE TO DISPROVE THE CLAIMS MADE BY THE ASSESSEE, WE DISMISS THIS APPEAL FILED BY THE REVENUE. 8. COMING TO THE CROSS OBJECTION THE SAME IS DISMI SSED AS NOT PRESSED 9. IN THE RESULT THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH SEPTEMBER,2012. SD/- SD/- (A.D. JAIN) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: THE 17 TH SEPTEMBER, 2012 *MANGA 5 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR 1. DATE OF DICTATION: 2. DRAFT PLACED BEFORE THE AUTHOR ON: 3. DRAFT PROPOSED AND PLACED BEFORE SECOND MEMBER ON: 4. DRAFT DISCUSSED/APPROVED BY THE SECOND MEMBER ON: 5. APPROVED DRAFT CAME TO SR.P.S. ON: 6. DATE OF PRONOUNCEMENT : 7. FILE SENT TO BENCH CLERK ON : 8. DATE ON WHICH FILE GIVEN TO HEAD CLERK ON: 9. DATE OF DISPATCHING THE ORDER ON :