DCIT, New Delhi V. M/s. Inapex Ltd, New Delhi

ITA 1419/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1315 (ITAT-DELHI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-11-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 13-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANSHU SHUKLA
• Assessee Lawyers: ANIL KUMAR KATHURIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 1419/DEL/2009 ASSESSMENT YEAR : 2005-06 DCIT, CIR.11(1), NEW DELHI. VS. M/S INAPEX LTD. (NOW INAPEX (P) LTD.) L-22, HAUZ KHAS ENCLAVE, NEW DELHI. PAN: AAACI1925R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANIL KUMAR KATHURIA REVENUE BY : SMT. ANSHU SHUKLA PANDEY, DR O R D E R PER I.P. BANSAL, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER OF THE CIT (A) DATED 22 ND JANUARY, 2009 FOR ASSESSMENT YEAR 2005-06. GROUND S OF APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS.21,78,318/- ON ACCOUNT OF INCOME FROM UNDISCLOSE D SOURCES. 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AME ND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF HEARIN G. 2. WHILE FRAMING THE ASSESSMENT THE ASSESSING OFFIC ER NOTICED THAT AS PER AIR INFORMATION THE ASSESSEE COMPANY HAD INVESTED A TOTAL SUM OF RS.3,66,78,318/- IN THE MUTUAL FUNDS DURING THE REL EVANT FINANCIAL YEAR WHICH INCLUDED AN INVESTMENT OF RS.21,78,318/- MADE IN F RANKLIN TEMPLETON MUTUAL ITA NO.1419/DEL/2009 2 FUND ON 17 TH SEPTEMBER, 2004. THE ASSESSEE WAS REQUIRED TO EXP LAIN THE SAME. THE ASSESSEE DID NOT FURNISH ANY EVIDENCE FOR MAKIN G INVESTMENT OF RS.21,78,318/-. IT WAS SUBMITTED THAT NO SUCH INVE STMENT WAS MADE. THE ASSESSING OFFICER DID NOT ACCEPT SUCH STATEMENT AND THE SAID AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE. BEFORE THE CIT (A) IT WAS SUBMITTED THAT NO SUCH INVESTMENT WAS MADE ON 17 TH SEPTEMBER, 2004. WHATEVER INVESTMENT WAS MADE BY THE ASSESSEE IN THAT FUND WAS FULLY REALIZE D. REFERENCE WAS MADE TO VARIOUS DOCUMENTS TO SHOW THAT THE INVESTMENTS MADE BY THE ASSESSEE IN THAT FUND WAS FULLY REALIZED IN SUBSEQUENT YEARS. LD. C IT (A) HAS ACCEPTED THE STATEMENT AND EXPLANATION OF THE ASSESSEE AND HAS DELETED THE ADDITION AGAINST WHICH THE REVENUE IS AGGRIEVED, HENCE, IN APPEAL. 3. IT WAS SUBMITTED BY LD. DR THAT ACCORDING TO CER TIFICATE THE ASSESSEE HAD MADE INVESTMENT OF RS.21,78,318/- IN THE FRANKLIN T EMPLETON MUTUAL FUND ON 17 TH SEPTEMBER, 2004. IT WAS SUBMITTED THAT NO EVIDENC E WHATSOEVER WAS SUBMITTED BY THE ASSESSEE TO PROVE THAT INVESTMENT AND, THEREFORE, THE ASSESSING OFFICER WAS RIGHT IN MAKING THE ADDITION. IT WAS SUBMITTED THAT THE CIT (A) HAS DELETED THE ADDITION WITHOUT APPRECIATING T HE FACTS PROPERLY AND HAS ACCEPTED THE SUBMISSIONS OF THE ASSESSEE WITHOUT VE RIFYING THE SAME. LD. DR REFERRED TO THE STATEMENT GIVEN BY FRANKLIN TEMPLET ON INVESTMENT TO THE ASSESSEE COMPANY A COPY OF WHICH IS PLACED AT PAGE 31. ACCOUNT NO. IS 3001742, FUND NAME IS TEMPLETON INDIA LIQUID FUN D AND OPTION IS GROWTH WHEREIN THE FOLLOWING ENTRIES HAVE BEEN STATED:- DATE TRANSACTION TYPE AMOUNT (RS.) PRICE (RS.) UNIT S UNIT BALANCE 30.03.2000 EXCHANGE FROM 2017245(TIIF-GP) 1,610,911.69 11.8384 136,075.119 136,075.119 17.09.2004 MERGER TO 1990000199837 (TITMA-LGP) 2,178,317.72 16.0082 136,075.119 0.000 4. REFERRING TO THE ABOVE CERTIFICATE, IT WAS SUBMI TTED THAT NO EVIDENCE WHATSOEVER HAS BEEN SUBMITTED BY THE ASSESSEE TO SH OW THAT ON 17 TH SEPTEMBER, 2004 ANY SUCH INVESTMENT WAS NOT MADE BY THE ASSESSEE. THUS, IT ITA NO.1419/DEL/2009 3 WAS SUBMITTED BY THE LD. DR THAT ADDITION HAS WRONG LY BEEN DELETED, THEREFORE, THE ORDER OF THE CIT (A) ON THIS ISSUE SHOULD BE RE VERSED. 5. ON THE OTHER HAND, IT WAS SUBMITTED BY LD. AR TH AT FROM THE DOCUMENTS IT WAS MADE CLEAR TO THE ASSESSING OFFICER AS WELL AS THE CIT (A) THAT NO SUCH INVESTMENT WAS MADE BY THE ASSESSEE ON 17 TH SEPTEMBER, 2004 IN THE SAID FUND. IT WAS SUBMITTED THAT WHATEVER INVESTMENT WAS MADE BY THE ASSESSEE WAS MATERIALIZED BY THE ASSESSEE AS PER DETAILS GIVEN T O THE ASSESSING OFFICER AND CIT (A) AND, THUS, THERE WAS NO QUESTION OF MAKING ANY INVESTMENT ON 17 TH SEPTEMBER, 2004. IT WAS SUBMITTED THAT THE CERTIFI CATE REFERRED TO BY LD. DR IS INCORRECT CERTIFICATE AND COULD NOT BE RELIED UPON FOR MAKING SUCH ADDITION. THUS, IT WAS SUBMITTED THAT LD. CIT (A) AFTER APPRECIATIO N OF FACTS HAS RIGHTLY HELD THAT SUCH ADDITION COULD NOT BE MADE. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIO NS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. WE HAVE ALSO CAREFULLY G ONE THROUGH THE SAID CERTIFICATE WHICH IS PLACED AT PAGE 31 OF THE PAPER BOOK. IN THE SAID CERTIFICATE, IT HAS CLEARLY BEEN STATED THAT ON 17 TH SEPTEMBER, 2004 A SUM OF RS.21,78,317.72 HAS BEEN INVESTED ON ACCOUNT OF MERGER TO 199000019 9837 (TITAMA-LGP), 1,36,075.119 UNITS OF TEMPLETON INDIA LIQUID FUND @ RS.16.008. IF IT IS THE CASE OF THE ASSESSEE THAT SUCH ENTRY STATED IN THE CERTI FICATE IS INCORRECT, THEN, IT WAS FOR THE ASSESSEE TO PROVE THAT SAID CERTIFICATE WAS INCORRECT. THE BENCH ASKED LD. AR TO PRODUCE ANY CORRESPONDENCE TO SHOW THAT W HETHER INCORRECTNESS OF THE SAID CERTIFICATE WAS BROUGHT TO THE NOTICE OF THE F UND. LD. AR STATED THAT FOR THE TIME BEING SUCH CORRESPONDENCE CANNOT BE PRODUCED. IF IT IS SO, IN OUR OPINION, IT WILL SERVE THE INTEREST OF JUSTICE, IF THE MATTER I S RESTORED BACK TO THE FILE OF ASSESSING OFFICER JUST TO VERIFY THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE FROM THE MUTUAL FUND THAT WHETHER OR NOT SAID INVESTMENT WAS ACTUALLY MADE BY THE ASSESSEE IN THAT FUND AND IF IT IS SO MADE WHAT WAS THE MODE OF MAKING SUCH INVESTMENT AND WHEN THAT INVESTMENT WAS MATERIALIZE D. THEREFORE, WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WIT H DIRECTIONS GIVEN AS ABOVE. AFTER ITA NO.1419/DEL/2009 4 VERIFYING THE SAME HE WILL DETERMINE THE INCOME OF THE ASSESSEE IN THIS RESPECT AS PER LAW. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL FILED BY THE DEPARTMENT IS TREATED TO BE ALLOWED. . 8. THE ORDER PRONOUNCED IN THE OPEN COURT ON 13.11. 2009. [R.C. SHARMA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 13.11.2009. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES