M/s. Nuberg Engineering Ltd, New Delhi V. ITO, New Delhi

ITA 1185/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4017 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 09-05-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 04-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SRUJANI MOHANTY
• Keywords: Reopening of assessment
• Section: 143(3); 147; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A NO. 1185/DEL/11 ASSTT. YEAR 2001-02 M/S. NUBERG ENGINEERING LTD. 1223, GALI NO. 83, SHANTI NAGAR, TRI NAGAR, DELHI 110 035. VS. ITO, WARD 13 (2) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SATISH AGGARWAL, CA RESPONDENT BY: SMT. SRUJANI MOHANTY, SR. DR ORDER PER RAJPAL YADAV, JM: ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER OF LD. CIT(A) DATED 22 ND NOV. 2010 PASSED FOR ASSTT. YEAR 2001-02. THE GROU NDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH RULE 8 OF ITAT RULES. THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NA TURE. IN BRIEF, THE GRIEVANCE OF ASSESSEE IS THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE REOPENING OF ASSESSMENT AS WELL AS THE ADDITION OF ` 2 LAC, WHICH WAS ADDED BY THE AO WITH THE AID OF SECTION 68 OF THE I NCOME TAX ACT. ITA NO. 1185/DEL/11 ASSTT. YEAR 2001-02 2 2. LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEAR ING, DID NOT PRESS GROUND NO. 1 CHALLENGING THE REOPENING OF ASSESSMEN T. HENCE, IT IS REJECTED. 3. THE FACTS WITH REGARD TO NEXT FOLD OF GRIEVANCE ARE THAT ASSESSEE HAS FILED ITS RETURN ON 30 TH OCTOBER, 2001 DECLARING AN INCOME OF ` 4,68,092/-. AN ASSESSMENT U/S 143(3) WAS PASSED ON 29 TH AUGUST, 2003 WHEREBY INCOME DECLARED BY THE ASSESSEE WAS ACCEPTE D. THE ASSESSMENT WAS REOPENED AND REASSESSMENT ORDER U/S 147 READ WITH SECTION 143(3) WAS PASSED ON 28 TH AUGUST, 2006, WHEREBY INCOME OF THE ASSESSEE WAS DETERMINED AT ` 4,96,400/-. THE AO AGAIN REOPENED THE ASSESSMENT ON 31 ST MARCH, 2008 BY ISSUANCE OF A NOTICE U/S 148. ACCORDING TO THE AO, ASSESSEE HAS RECEIVED A SUM OF ` 2 LACS THROUGH ACCOUNT PAYEE CHEQUE FROM M/S. VED FINLEASE PVT. LT D. THIS CONCERN IS IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRY. A SSESSEE HAS SUBMITTED COMPLETE DETAILS WITH REGARD TO THE CREDI TOR BUT AO HAS MADE THE ADDITION. 4. APPEAL TO THE LD. CIT(A) DID NOT BRING ANY RELIE F TO THE ASSESSEE. 5. LD COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET, SUBMITTED THAT THOUGH ASSESSEE HAS A VERY STRONG CASE FOR CHALLENG ING THE REOPENING OF ASSESSMENT AS WELL AS EXPLANATION FOR THE ALLEGED L OAN OF ` 2 LACS FROM M/S. VED FINLEASE PVT. LTD., EVEN IF ALL THESE ASPE CTS ARE NOT LOOKED INTO ITA NO. 1185/DEL/11 ASSTT. YEAR 2001-02 3 THEN ALSO ADDITION U/S 68 IN RESPECT OF ` 2 LACS CANNOT BE MADE. HE POINTED OUT THAT THE AMOUNT WAS TAKEN BY THE ASSESS EE ON 12 TH AUGUST ,2000 THROUGH ACCOUNT PAYEE CHEQUE BEARING NO. 3091 01. THIS AMOUNT WAS REPAID BY THE ASSESSEE ON 7 TH SEPTEMBER,2000 THROUGH ACCOUNT PAYEE CHEQUE NO. 123908. THE AO HAS CALLED FOR A RE PORT FROM THE BANK AND WAS SATISFIED THAT AMOUNT TAKEN BY THE ASSESSEE HAS BEEN REPAID DURING THE YEAR ITSELF. BUT HE OBSERVED THAT M/S. V ED FINLEASE PVT. LTD. HAS GIVEN THIS AMOUNT TO SOME BODY ELSE, BECAUSE IN THIS ACCOUNT, THERE ARE VARIOUS DEPOSITS AND WITHDRAWALS. THE CONTENTIO N OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE MOVEMENT AMOUNT WAS RE TURNED DURING THE YEAR ITSELF THEN AT THE END OF THE YEAR, THERE WAS NO LOAN AGAINST THE NAME OF THIS CONCERN IN THE BOOKS OF ASSESSEE. THER EFORE, THERE CANNOT BE ANY ADDITION U/S 68 OF THE INCOME TAX ACT. ON TH E OTHER HAND, LD. DR RELIED UPON THE ORDERS OF REVENUE AUTHORITIES BELOW . 6. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. ON PAGE 3, AO HIMSELF ACCEPT ED THAT HE HAS OBTAINED BANK STATEMENT FROM THE BANK AND VERIFIED THE FACTS THAT AMOUNT HAS BEEN RETURNED BY THE ASSESSEE. THE AO DI D NOT ACCEPT THE CONTENTION OF ASSESSEE ONLY ON THE GROUND THAT IN T HIS ACCOUNT, THERE ARE FOUR FIVE ENTRIES EXHIBITING WITHDRAWALS OR DEPOSIT S OF EQUAL AMOUNTS SIMULTANEOUSLY. THE FACT REMAINS THAT THIS AMOUNT W AS RETURNED BY ITA NO. 1185/DEL/11 ASSTT. YEAR 2001-02 4 ASSESSEE THROUGH ACCOUNT PAYEE CHEQUE. AO HAS NOT T AKEN COGNIGENCE OF ANY OTHER AMOUNT BEARING THE NAME OF M/S. VED FI NLEASE PVT. LTD. IN THE BOOKS OF ASSESSEE. IF THAT CONCERN WAS INVOLVED IN GIVING MONEY TO OTHER ASSESSES, THEN IT IS THE OUTLOOK OF THAT CONC ERN TO EXPLAIN ITS POSITION OR THOSE ASSESSES IN WHOSE BOOKS OF ACCOUN TS CREDITS ARE AVAILABLE. BUT AS FAR AS THE ASSESSEE IS CONCERNED, THERE IS NO CREDIT ENTRY AGAINST THE NAME OF M/S. VED FINLEASE PVT. LT D. IN RESPECT OF THESE ` 2 LACS. NO ADDITION CAN BE MADE. IN VIEW OF THE ABO VE DISCUSSION, WE ALLOW THIS GROUND OF APPEAL AND DELETE THE ADDITION . 7. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.5.2011. SD/- SD/- [SHAMIM YAHYA] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20.5.2011 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT