The Income-tax Officer, Bathinda V. M/s. Amravati Infrastructure Developers Pvt. Ltd., Bathinda

ITA 122/ASR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8869 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SHARDA
• Keywords: Additional evidence
• Section: 143(3); 68

Judgement Text

ITA NO 122(ASR)/2013 AY: 2009-10. THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.122(ASR)/2013 ASSESSMENT YEAR:2009-10 PAN:AADCA6867F INCOME TAX OFFICER, VS. M/S. AMRAVATI INFRASTRUCTUR E WARD 1(1), BATHINDA. DEVELOPERS PVT. LTD; GURU KASHI MARG, BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. R.K. SHARDA, DR RESPONDENT BY: SH. SUDHIR SEHGAL, DATE OF HEARING: 01/02/2016 DATE OF PRONOUNCEMENT: 03/02/2016 ORDER PER T.S. KAPOOR, AM: THIS IS THE DEPARTMENTS APPEAL FOR THE ASSESSMEN T YEAR 2009-10, AGAINST THE ORDER DATED 20.12.2012, PASSED BY THE LD. CIT(A), BATHINDA. THE REVENUE HAS RAISED THE FOLLOWING GROU NDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF : I) RS.1,65,00,000/- ON ACCOUNT OF FAILURE OF THE ASSES SEE TO PROVE IDENTITY AND GENUINENESS OF THE PERSONS HAVING INTRODUCED SHARE CAPITAL AND SHARE PREMIUM. II) RS.1,10,00,000/- ON ACCOUNT OF FAILURE TO ACCOUNT F OR THE ACCRUED INCOME @ RS.10,00,000/- PER MONTH FROM MAY, 2008 TO MARCH, 2009 FOR ELEVEN MONTH FROM M/S. SATYA DEVELOPERS LIMITED AS PER AGREEMENT. ITA NO.122(ASR)/2013 AY: 2009-10 2 III) RS.1,20,00,000/- ON ACCOUNT OF FAILURE TO PROVE CAPACITY OF THE LOAN CREDITORS AS WELL AS GENUINENE SS OF TRANSACTIONS. 2. THAT IT IS PRAYED THAT THE ORDER OF THE LD. CIT( A) BE SET ASIDE AND THAT OF THE AO BE RESTORED. 2. AS PER RECORD OF THE CASE, THE ASSESSEE IS A COL ONIZER. THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS COMP LETED VIDE ORDER DATED 29.12.2011 AT AN INCOME OF RS.3,95,00,000/-. THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT WERE INITIATED ON ACCOUNT OF CONCEALMENT OF PARTICULARS OF INCOME/FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. CIT(A), BATHINDA VI DE ORDER DATED 20.12.2012, DELETED THE ENTIRE ADDITIONS. 3. THESE ADDITIONS WERE AS FOLLOWS: I) RS.1,65,00,000/- ON ACCOUNT OF FAILURE OF THE AS SESSEE TO PROVE IDENTITY AND GENUINENESS OF THE PERSONS HAVING INTRODUCED SHARE CAPITAL AND SHARE PREMIUM. II) RS.1,10,00,000/- ON ACCOUNT OF FAILURE TO ACCOU NT FOR THE ACCRUED INCOME AT THE RATE OF RS.10,00,000/- PE R MONTH FROM MAY, 2008 TO MARCH, 2009 FOR ELEVEN MONTHS FROM M/S. SATYA DEVELOPERS LIMITED AS PER AGREEMENT. IV) RS.1,20,00,000/- ON ACCOUNT OF FAILURE TO PROVE CAPACITY OF THE LOAN CREDITORS AS WELL AS GENUINENE SS OF TRANSACTIONS. 4. GROUND NO.1 IS AGAINST THE ACTION OF THE LD. CIT (A) IN DELETING THE ADDITION OF RS.1,65,00,000/- ON ACCOUNT OF UNEXPLAI NED SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE FROM M/S . DHIR MANAGEMENT CONSULTANTS PRIVATE LIMITED, CHANDIGARH, M/S. SKM S ECURITIES PVT. LTD, CHANDIGARH AND M/S. SINGHAL SECURITIES PVT. LTD., N EW DELHI. VIDE LETTER ITA NO.122(ASR)/2013 AY: 2009-10 3 DATED 16.11.2011, THE AO ASKED THE ASSESSEE FOR T HE FOLLOWING INFORMATION: 4. PAID UP SHARE CAPITAL AS ON 31.03.2009 STANDS A T RS.17,65,000/-. PLEASE FURNISH NAMES, ADDRESSES, HO LDING, DATE OF PURCHASE OF SHARE HOLDERS ALONGWITH THEIR PAN. 5. AN AMOUNT OF RS.1,53,35,000/- HAS BEEN INTRODUCE D AS SHARE PREMIUM DURING THE YEAR PLEASE FURNISH THE FO LLOWING PARTICULARS IN THIS REGARD:- I) NAME OF THE SHARE-HOLDER & PAN II) AMOUNT PAID AS PREMIUM PER SHARE AND TOTAL AMOUNT. III) MODE OF PAYMENT IV) DOCUMENTARY EVIDENCE REGARDING SUCH PAYMENT V) SOURCE OF PAYMENT OF THE PREMIUM BY THE SHARE- HOLDER. VI) PLEASE FURNISH COMPLETE SHARE PREMIUM ACCOUNT. 5. THE ASSESSEE REPLIED BY FILING COMPLETE DETAIL O F THE SHARE-HOLDERS ALONGWITH COMPLETE ADDRESS AND PAN, AS ALSO THE D ETAILS OF SHARE PREMIUM ALONGWITH MODE OF ITS RECEIPTS. HOWEVER, TH E AO ASKED THE ASSESSEE TO FILE COPIES OF ACCOUNT, BOOKS OF ACCOUN T OF THE SHARE-HOLDERS, COPIES OF RETURNS FILED BY THEM AND SOURCE OF AMOUN T ALONGWITH COPIES OF AUDIT REPORT OF THE CONCERNED SHARE-HOLDERS AND ALS O REQUIRED TO PRODUCE THESE PERSONS FOR EXAMINATION. THE COUNSEL FOR THE ASSESSEE ASKED FOR ADJOURNMENT FOR SUPPLY OF THE INFORMATION. HOWEVER, NO ADJOURNMENT WAS GRANTED TO THE ASSESSEE, OBSERVING THAT THE CAS E WAS GETTING TIME BARRED. THE AO PROCEEDED TO MAKE THE ADDITION ON AC COUNT OF SHARE APPLICATION MONEY AS INCOME OF THE ASSESSEE COMPANY U/S 68 OF THE I.T. ACT. FOR THIS ADDITION, THE AO PLACED RELIANCE ON CIT VS. NIVEDAN VANIJYA NIYOJAN LTD.,, 263 ITR 623 (CAL.), WHEREIN IT WAS HELD THAT IN THE ITA NO.122(ASR)/2013 AY: 2009-10 4 CASE OF SUBSCRIPTION TO THE SHARE CAPITAL OF A COMP ANY THE PRINCIPAL INGREDIENT THAT HAS TO BE SATISFIED IS TO ESTABLISH THE IDENTITY OF THE SUBSCRIBERS AND PROVE THEIR CREDITWORTHINESS AND TH E GENUINENESS OF THE TRANSACTION, WHICH THE ASSESSEE HAD FAILED TO DO. 6. THE ADDITIONAL INFORMATION, WHICH THE AO HAD ASK ED THE ASSESSEE TO FILE BUT WHICH HAD NOT BEEN TAKEN ON RECORD, THO UGH FILED BY THE ASSESSEE FOR THE REASON THAT THE CASE WAS GETTING T IME BARRED, WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(A). THE LD. CIT (A) FURNISHED THE SAME TO THE AO ASKING FOR REMAND REPORT. IN THE REMAND R EPORT FURNISHED, THE AO DID NOT OBJECT TO THE INFORMATION SO FILED BY TH E ASSESSEE BEFORE THE LD. CIT(A) AT PAGES 1 TO 57 OF THE PAPER BOOK FILED BEFORE THE LD. CIT(A). RATHER, THE AO ASKED FOR THE SAME TO BE CONSIDERED AT THE TIME OF DISPOSAL OF THE APPEAL. THE LD. CIT(A) FOUND THE DE TAIL CONTAINING COMPLETE ADDRESSES OF THE PERSONS, WHO HAD MADE THE SHARE APPLICATION MONEY, THEIR PAN AND MODE OF TRANSFER , I.E., THROU GH BANK. THE INFORMATION FILED BY THE ASSESSEE BEFORE THE LD. C IT(A), CONTAINED AT PAGES 1 TO 22 OF THE PAPER BOOK FILED BEFORE THE LD . CIT(A), TO BE THE COPY OF ITR, COPY OF AUDITED ACCOUNTS ALONGWITH BALANCE SHEET AND OTHER RELEVANT RECORDS. THE LD. CIT(A) FOUND THIS EVIDENC E TO BE SUFFICIENT TO HOLD THAT THE ASSESSEE HAD DISCHARGED THE INITIAL B URDEN LYING UPON HIM, AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. LOVELY EXPORTS (P) LTD., 216 CTR 195 (SC), WHEREIN, THE H ONBLE SUPREME COURT HELD THAT IF THE SHARE APPLICATION MONEY WAS RECEIV ED FROM ALLEGED BOGUS ITA NO.122(ASR)/2013 AY: 2009-10 5 SHAREHOLDERS, WHOSE NAMES WERE GIVEN TO THE AO, THE N THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSME NTS IN ACCORDANCE WITH LAW, BUT IT CANNOT BE REGARDED AS UNDISCLOSED INCOM E OF THE ASSESSEE- COMPANY. THE LD. CIT(A) FOUND THE HONBLE JURISDICT IONAL PUNJAB & HARYANA HIGH COURT TO HAVE TAKEN SIMILAR VIEW IN CIT VS. GP INTERNATIONAL LTD.,, 229 CTR 86 (P&H). 7. THE LD. CIT(A) ALSO FOUND OTHER JUDGMENTS QUOTED BY THE ASSESSEE TO GO IN FAVOUR OF THE ASSESSEE AND IT WAS, THEREFO RE, THAT THE LD. CIT(A) DELETED THE ADDITION. 8. THE LD. DR CONTENDED THAT THE LD. CIT(A) ERRED I N DELETING THE ADDITION OF RS.1,65,00,000/- CORRECTLY MADE BY TH E AO, DESPITE THE FACT THAT THE ASSESSEE MISERABLY FAILED TO PROVE EITHER THE IDENTITY OR CREDITWORTHINESS OF THE ALLEGED CREDITOR, OR THE GE NUINENESS OF THE TRANSACTION IN INTRODUCING THE SHARE CAPITAL AND S HARE PREMIUM. 9. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE, PLACING STRONG RELIANCE ON THE IMPUGNED ORDER, HAS CONTENDED THAT THE ADDITIONS WERE MADE BY THE AO ONLY FOR WANT OF DOCUMENTS WHICH CAN PROVE THAT THE TRANSACTIONS OF INCREASE OF SHARE CAPITAL WERE GENU INE; THAT THE AO HAD HIMSELF ACCEPTED THE EVIDENCE FOR THE SAME IN HIS R EMAND REPORT AND HAD NOT GIVEN ANY ADVERSE COMMENT AGAINST THE SUBMISSIO N OF THE ASSESSEE; THAT THE AO HAD MADE THE ADDITION ONLY ON THE BASIS OF ASSUMPTION; AND THAT IN THE SIMILAR FACTS AND CIRCUMSTANCES, THE AP PEAL OF THE DEPARTMENT WAS DISMISSED BY THE CHANDIGARH BENCH OF THE TRIBUN AL IN ITA NO.122(ASR)/2013 AY: 2009-10 6 THE CASE OF THE ITO VS. M/S. MANDI ALLOYS (P) LTD ., VIDE ORDER DATED 27.11.2015, IN ITA NO.222/CHD/2015. FURTHER, RELIAN CE HAS BEEN PLACED ON THE FOLLOWING CASE LAWS: I) KISCO CASTINGS P. LTD. VS. ACIT IN ITA NO.685/ CHD/2011, CHANDIGARH BENCH, 152 TTJ 629. II) CIT VS. SHREE DADU AUTO P. LTD. IN ITA NO.704 OF 2009 (P&H). III) CIT VS. GP INTERNATIONAL LTD. 325 ITR 25 (P&H) IV) CIT VS. GANGESHWARI METAL PVT. LTD., 361 ITR 10 ( DEL.) V) CIT VS. WINSTRAL PETROCHEMICALS P. LTD., 330 ITR 603 (DEL.) 10. FURTHER, RELIANCE HAS BEEN PLACED ON ACIT VS. KISCO CASTING (P) LTD., 147 ITD 269 (CHANDIGARH), CIT-II, LUDHIANA VS. M/S. SHREE DADU AUTO (P.) LTD., RENDERED BY THE HONBLE JURISDICTI ONAL HIGH COURT OF P & H ON 30.032010 IN ITA NO. 704 OF 2009, FOR THE ASSE SSMENT YEAR 2005- 06. 11. IN THIS REGARD, IT IS SEEN THAT THE LD. CIT(A) HAS MENTIONED IN THE IMPUGNED ORDER THAT THE AO IN THE REMAND REPORT DID NOT OBJECT TO THE INFORMATION FILED BEFORE THE LD. CIT(A) AND HAD SOU GHT FOR THE SAME TO BE CONSIDERED AT THE TIME OF DISPOSAL OF THE APPEAL. A S PER THE LD. CIT(A) AT THE TIME OF ASSESSMENT, THE ASSESSEE HAD FILED COMP LETE DETAILS, ADDRESSES OF THE PERSONS HAVING MADE SHARE APPLICAT ION MONEY, THEIR PAN, MODE OF TRANSFER, I.E., THROUGH BANK. BEFORE T HE LD. CIT(A), THE ASSESSEE HAD FILED THE COPY OF ITR, BANK ACCOUNT, C OPY OF AUDITED ACCOUNT ALONGWITH BALANCE SHEET AND OTHER RELEVANT RECORD AS PER PAPER BOOK CONTAINING PAGES 1 TO 22. THIS FOUND BY THE LD . CIT(A) TO BE SUFFICIENT TO HOLD THAT THE ASSESSEE HAD DISCHARGED THE INITIAL BURDEN AS ITA NO.122(ASR)/2013 AY: 2009-10 7 PER LOVELY EXPORTS PVT. LTD. (SUPRA) AND GP INTE RNATIONAL LTD., (SUPRA). IN LOVELY EXPORTS PVT. LTD. (SUPRA), THE HONBLE SUPREME COURT HAS HELD WHERE THE SHARE APPLICATION MONEY IS REC EIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHAREHOLDERS, IF THE A SSESSEE GIVES THE NAMES OF SUCH SHAREHOLDERS TO THE AO, THE DEPARTMEN T CAN PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE W ITH LAW, BUT THE AMOUNT CANNOT BE REGARDED AS UNDISCLOSED INCOME OF THE ASSESSEE COMPANY. TO THE SAME EFFECT IS THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF GP INTERNATIONAL LIMITED ,(SUPRA). 12. THE LD. CIT(A) WHILE GIVING RELIEF TO THE ASSES SEE ON ACCOUNT OF SHARE APPLICATION MONEY HAS RELIED UPON THE ABOVE JUDGMENTS. HE HAS NOT COMMENTED ON THE MERITS OF THE CASE. HOWEVER, W E HAVE EXAMINED THE ISSUE FROM THE ANGLE OF MERITS ALSO. WE FIND TH AT THE THREE SHAREHOLDERS FROM WHOM SHARE CAPITAL MONEY ALONGWIT H SHARE PREMIUM HAS BEEN COLLECTED ARE ALL PRIVATE LIMITED COMPANIE S WHICH HAVE BEEN INCORPORATED UNDER THE COMPANIES ACT AND ALL THESE COMPANIES ARE HAVING PAN NUMBERS AND HAVE FILED THEIR INCOME TAX RETURNS. THEREFORE, THERE CANNOT BE ANY DOUBT ABOUT THE IDENTITY OF THE SE COMPANIES. 13. AS REGARDS THE CREDITWORTHINESS OF THESE COMPA NIES, WE FIND THAT THESE THREE COMPANIES HAD FILED AUDITED ACCOUNTS AN D INVESTMENT IN THE ASSESSEE COMPANY HAS BEEN MADE DULY REFLECTED IN TH EIR RESPECTIVE BALANCE SHEETS. WE FIND THAT THE INVESTMENTS IN TH E ASSESSEE-COMPANY HAS BEEN OUT OF SHARE CAPITAL AND RESERVES OF THE I NVESTING COMPANIES. ITA NO.122(ASR)/2013 AY: 2009-10 8 FOR EXAMPLE, THE NET WORTH OF M/S. DHIR MANAGEMENT CONSULTANTS (P) LTD., (ONE OF THE INVESTING COMPANIES) AS ON 31.03. 2009 AS PER BALANCE SHEET PLACED AT PAPER BOOK PAGE 8 ( IN SHORT PB-8 ) IS RS.99,34,843/- OUT OF WHICH IT HAD MADE INVESTMENTS TO THE TUNE OF RS .75,45,930/- IN VARIOUS COMPANIES AS IS APPARENT FROM SCHEDULE-VI O F BALANCE SHEET PLACED AT PB-9. THE SCHEDULE REFLECTS THE NAME OF ASSESSEE COMPANY WHERE THE INVESTMENT HAS BEEN REFLECTED TO THE TUN E OF RS.70,00,000/-. 14. SIMILAR IS THE POSITION WITH OTHER INVESTING COMPANY, M/S. S.K.M. SECURITIES (P) LTD. THE SECOND INVESTING COMPANY H AS NET WORTH OF RS.1,01,05,370/- AS ON 31.3.2009, OUT OF WHICH RS.6 5,00,000/- HAS BEEN INVESTED IN THE ASSESSEE COMPANY. THIS FACT IS VERIFIABLE FROM THE COPY OF BALANCE SHEET OF INVESTING COMPANY PLACED A T PB-13. 15. SIMILARLY THE THIRD COMPANY M/S. SINGHAL SECURI TIES (P) LTD., AS ON 31.03.2009 HAD NET WORTH OF RS.10,49,97,000/- OUT O F WHICH RS.7,02,55,000/- HAS BEEN INVESTED IN SHARES OF VA RIOUS COMPANIES AND WHICH FACT IS VERIFIABLE FROM PB-22, WHERE A COPY O F BALANCE SHEET AS ON 31.03.2009 IS PLACED. THE INVESTMENT MADE IN THE AS SESSEE COMPANY IS INCLUDED IN THIS TOTAL INVESTMENT. 16. FROM THE ABOVE FACTS AND FIGURES, THE CREDITWOR THINESS OF THE INVESTING COMPANIES IS ALSO PROVED. 17. AS REGARDS THE GENUINENESS OF TRANSACTIONS, WE FIND THAT THE ASSESSEE COMPANY HAS RECEIVED THE SHARE CAPITAL ALO NGWITH SHARE PREMIUM AMOUNT THROUGH BANKING CHANNELS AND FROM TH E ANALYSIS OF THE ITA NO.122(ASR)/2013 AY: 2009-10 9 BANK ACCOUNTS OF THE INVESTING COMPANIES, WE FIND T HAT THERE WERE NO CASH DEPOSITS BEFORE INVESTMENTS IN THE ASSESSEE CO MPANY EXCEPT AN AMOUNT OF RS.1,50,000/- AND THESE COMPANIES HAD SUF FICIENT BALANCE IN THEIR BANK ACCOUNTS TO MAKE INVESTMENTS IN THE ASSE SSEE COMPANY. FOR EXAMPLE, IN THE CASE OF M/S. SKM SECURITIES PVT. LI MITED, THE COMPANY HAD BALANCE OF RS.35,28,860/- IN ITS BANK ACCOUNT WITH INDUSIND BANK AS ON 27.6.2008 OUT OF WHICH RS. 15,00,000/- WAS IN VESTED IN THE ASSESSEE COMPANY ON 28.6.2008 AND FURTHER THE INVES TING COMPANY HAD BALANCE OF RS.50,28,835/- AS ON I0TH JULY, 2008 OU T OF WHICH RS.50,00.000/- HAS BEEN INVESTED IN THE ASSESSEE-CO MPANY ON 12 TH JULY, 2008. THE ANALYSIS OF BANK ACCOUNT STATEMENT REVEAL S THAT THE DEPOSIT IN THE BANK ACCOUNT BEFORE INVESTMENTS IN THE ASSES SEE COMPANY WERE ALL THROUGH BANKING TRANSACTIONS. THEREFORE, THE GENUIN ENESS OF TRANSACTION CANNOT BE DOUBTED. 18. AS REGARDS THE INVESTMENT MADE BY M/S. DHIR MAN AGEMENT CONSULTANTS PVT. LTD., ITS BANK STATEMENT IS PLACED AT PB-10. FROM THE ANALYSIS OF THIS BANK ACCOUNT, WE FIND THAT THE ASS ESSEE COMPANY HAD INVESTED RS.40,00,000/- ON 10.06.2008 THROUGH RTGS AND FURTHER RS. 30,00,000/- WAS INVESTED ON 13.06.2008 THROUGH RTGS AND INVESTING COMPANY HAD SUFFICIENT BALANCE IN ITS BANK ACCOUNT. SIMILAR IS THE CASE WITH BANK ACCOUNT OF M/S. SINGHAL SECURITIES PVT. L TD PLACED AT PB 27- 28, WHERE THE INVESTING COMPANY HAD MADE AN INVESTM ENT OF RS.30,00,000/- OUT OF THE AVAILABLE BANK BALANCE. T HE INVESTING COMPANY ITA NO.122(ASR)/2013 AY: 2009-10 10 HAD RECEIVED AN AMOUNT OF RS.30,00,500/- FROM ONE M /S. TULIKA SECURITIES ON 5.6.2008 AND OUT OF THIS AMOUNT OF RS .30,00,000/- FOR INVESTMENT WAS MADE IN THE ASSESSEE COMPANY. 18.1. THEREFORE, THE ABOVE FACTS AND FIGURES NOT ON LY THE SOURCE OF INVESTMENTS BUT THE SOURCE OF SOURCE HAS ALSO BEEN ESTABLISHED. 19. IN VIEW OF THE ABOVE FACTS AND FINDINGS, WE FIN D THAT ALL THE THREE INGREDIENTS REQUIRED FOR FULFILLMENT OF PROVISIONS OF SECTION 68 OF THE ACT ARE MET AND THEREFORE, THE LD. CIT(A) HAS RIGHTLY D ELETED THE ADDITION MADE BY THE AO U/S 68 OF THE ACT. ACCORDINGLY, KEEP ING IN VIEW THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, GROUN D NO.1 (I) OF THE APPEAL IS DISMISSED. 20. AS REGARDS GROUND NO.1(II), THE LD. DR ARGUED T HAT AS PER THE AGREEMENT WITH M/S. SATYA DEVELOPERS PVT. LIMITED , THE INCOME HAD ACCRUED TO THE ASSESSEE @ RS.10 LACS PER MONTH FOR 11 MONTHS AND INVITED OUR ATTENTION TO THE AGREEMENT WITH M/S. SA TYA DEVELOPERS PVT. LTD. 21. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE AGREEMENT WITH M/S. SATYA DEVELOPERS PVT. LTD. WAS AN EXHAUSTIVE AGREEMENT CONTAINING 33 CLAUSES AND ONE OF THE CONDITIONS AS PER CLAUSE-14 SAYS THAT IF THE DELAY IS BECAUSE OF THE FORCE-MAJEURE CONDITIONS, NO COMPENSATION IS PAYABLE. HE SUBMITTE D THAT THE PUDA HAD NOT GIVEN POSSESSION FOR DEVELOPMENT OF THE PRO PERTY EVEN TILL 11.09.2006 AND THEREFORE, THE DELAY IN THE EXECUTI ON OF THE PROJECT WORK ITA NO.122(ASR)/2013 AY: 2009-10 11 WAS BEYOND THE CONTROL OF THE DEVELOPER. THE LD. C OUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT FROM THE BALANCE SHEET OF T HE DEVELOPER OBTAINED BY THE AO BY CALLING THE INFORMATION U/S 131, IT CA N BE SEEN THAT THE DEVELOPER HAD DECLARED PROJECT, AS WORK-IN-PROGRESS AND FURTHERMORE, HE SUBMITTED THAT CLAUSE-14 OF THE COLLABORATION AGREE MENT PROVIDES THAT THE CONSTRUCTION HAS TO BE COMPLETED WITHIN 24 MONT HS FROM THE DATE OF SANCTION OF PLAN OR HANDING OVER THE POSSESSION, WH ICHEVER IS LATER. THE LD. COUNSEL SUBMITTED THAT HANDING OVER OF THE PO SSESSION ITSELF WAS DELAYED, THEREFORE, NO COMPENSATION ACCRUED TO THE ASSESSEE. 22. WE FIND THAT THE LD. CIT(A) HAS MADE A FINDING OF FACT THAT AS PER CLAUSE-14, THE DEVELOPER HAD TO COMPLETE THE PROJEC T WITHIN 24 MONTHS FROM THE DATE OF SANCTION OF PLAN OR HANDING OVER P OSSESSION, WHICHEVER IS LATER EXCEPTING FORCE MAJEURE CIRCUMSTANCES OR A NY ACTION OF THE STATUTORY AUTHORITY OR COURT ORDERS. THE CLAUSE-14 REPRODUCED BY THE LD. CIT(A) AT PAGE 10 OF HIS ORDER STATES THAT PERIOD O F 24 MONTHS SHALL BE SUBJECT TO FORCE MAJEURE CONDITIONS AND IN VIEW OF THE FACTS, WE HOLD THAT NO COMPENSATION ACCRUED TO THE ASSESSEE COMPANY AS THERE WAS DELAY IN HANDING OVER CLEAR CUT POSSESSION TO THE ASSESSEE C OMPANY BY PUDA, WHICH DELAYED THE COMPLETION OF PROJECT. MOREOVER, WE FIND THAT ASSESSEE HAD FILED ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) WHICH WAS FORWARDED TO THE AO AND THE AO HAS NOT MADE ANY ADVERSE COMMENTS ON THE ADDITIONAL EVIDENCE. IN VIEW OF THE ABOVE, WE DO NO T FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). ITA NO.122(ASR)/2013 AY: 2009-10 12 23. IN VIEW OF THE ABOVE DISCUSSION, GROUND NO.1(II ) IS ALSO DISMISSED. 24. AS REGARDS GROUND NO.1(III), THE AO MADE ADDITI ON U/S 68 OF THE ACT ON ACCOUNT OF LOAN FROM M/S. GOLDEN LAMINATES L TD. THE LD. DR HEAVILY RELIED UPON THE ASSESSMENT ORDER, WHEREAS T HE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF THE LD. CIT(A). 25. IN THIS RESPECT, WE FIND THAT THE ASSESSEE HAD RECEIVED A TOTAL LOAN OF RS.255 LACS FROM M/S. GOLDEN LAMINATES LTD., AND THE ASSESSEE HAD FILED A CONFIRMATION FROM THE M/S. GOLDEN LAMINATE S LTD., REGARDING ADVANCING A LOAN OF RS. 255 LACS BY THEM AND IN TH E CONFIRMATION THE DATE, CHEQUE NO. AND OTHER RELEVANT INFORMATION AL ONGWITH COMPANYS PAN WAS ALSO FILED. THE AO HAD ACCEPTED THE LOAN OF RS.1.05 CRORE AS GENUINE AND HE HAS REJECTED THE LOAN OF RS.1.20 CRO RE ON THE PLEA THAT THE SAME DOES NOT APPEAR IN THE BANK STATEMENT OF M /S. GOLDEN LAMINATES LTD., WHEREAS THE LD. CIT(A) HAS MADE A FINDING OF FACT THAT THE SOURCE OF THIS RS.1.20 CRORE WAS FROM HDFC BANK AND THE LD. CIT(A) HAD ALSO FORWARDED A COPY OF BANK ACCOUNT OF HDFC T O AO FOR HIS COMMENTS. THE AO IN THE REMAND REPORT HAS NOT OBJEC TED TO THE DOCUMENTS AND HAS REQUESTED THE LD. CIT(A) TO CONSI DER THE CASE WHILE DISPOSING OF THE APPEAL. THE LD. CIT(A) HAS FURTHER MADE A FINDING OF FACT THAT IN THE STATEMENT OF HDFC, ALL THE ENTRIES REL ATING TO ADVANCING OF LOAN OF RS.1.20 CRORES TO ASSESSEE DO APPEAR. THEREFORE, KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY FORCE IN THE ITA NO.122(ASR)/2013 AY: 2009-10 13 ARGUMENTS OF THE LD. DR. IN VIEW OF THE ABOVE, GROU ND NO. 1(III) IS ALSO DISMISSED. 26. IN NUTSHELL, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/02/201 6 SD/- SD/- (A.D. JAIN) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 03/02/2016 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE: M/S. AMRAVATI INFRASTRUCTURE DEVEL PERS PVT. LTD. BATHINDA. 2. THE ITO, WARD 1(1), BATHINDA. 3. THE CIT(A), BATHINDA 4. THE CIT, BATHINDA. 5. THE SR. DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.