Sikkim Land Developers Ltd, New Delhi V. ITO, New Delhi

ITA 1644/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9903 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 06-08-2009
• Assessment Year: 2006-2007
• Appeal Filed On: 22-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTI
• Assessee Lawyers: GOPAL NATHANI
• Keywords: Onus to prove
• Section: 251; 131; 68

Judgement Text

I.T.A. NO1644. /DEL/2009 1/10 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I NEW DELHI) BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 1644/DEL/2009 ASSESSMENT YEAR : 2006-07 SIKKIM LAND DEVELOPERS ITO, LTD., FLAT NO.104, 11 TH FLOOR, WARD-8( 4), 89-NEHRU PLACE, N. DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO.AJCS-1447-F APPELLANT BY : SHRI GOPAL NATHANI, C.A. RESPONDENT BY : SMT. MONA MOHANTI, SR. DR. ORDER PER A.K. GARODIA, AM: THIS IS AN ASSESSEE'S APPEAL DIRECTED AGAINST THE O RDER OF LD CIT (A)-XI, NEW DELHI DATED 23.2.2009 FOR ASSESSMENT YEAR 2006 -07. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER :- 1. THAT THE CIT(A)-XI, NEW DELHI HAS GROSSLY ERRED ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, IN CONFIRMING THE ADDITI ON OF RS.17,32,420/- U/S 68 ON MERE PROBABILITIES AND ASSUMPTIONS WITHOUT AN Y PROPER ENQUIRY IRRESPECTIVE OF ALL DETAILS AND PRIMA FACIE EVIDENC E PROVIDED BY THE APPELLANT COMPANY TO THE ASSESSING OFFICER. . I.T.A. NO.1644/DEL/09 2/10 2. THAT THE CIT(A) V, NEW DELHI GROSSLY ERRED ON F ACTS AND IN THE CIRCUMSTANCES OF THE CASE IN HOLDING THAT THE APPEL LANT COMPANY HAS NOT DISCHARGED ONUS TO PROVE THE GENUINENESS OF THE LIA BILITY OF RS.17,32,420/- 3. BRIEF FACTS OF THE CASE ARE THAT IT IS NOTED BY THE ASSESSING OFFICER ON PAGE NO.1 OF THE ASSESSMENT ORDER THAT THE ASSESSEE COMPANY HAS PURCHASED AGRICULTURAL LAND FOR RS.4,65,27,6220/- VIDE VARIOU S SALE DEEDS. IT IS ALSO NOTED THAT TOTAL PURCHASE AMOUNT HAS BEEN FINANCED BY M/S DUCE PROPERTIES AND SERVICES PVT. LTD. ON INTEREST. IT IS FURTHER NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE COMPANY HAS SHOWN THE LIABILITY AT RS.6,01 ,120/- AND RS.11,31,400/- IN THE BALANCE SHEET AS PAYABLE TO SHRI SULTAN SINGH A ND SHRI MAHABIR SINGH RESPECTIVELY. IT IS FURTHER NOTED BY THE ASSESSING OFFICER THAT BOTH THESE PERSONS WERE ISSUED SUMMONS BY REGISTERED POST TO ATTEND PE RSONALLY AND GIVE EVIDENCE OR TO PRODUCE BOOKS OF ACCOUNTS OR OTHER DOCUMENTS WITH REGARD TO THE TRANSACTION BUT BOTH THE PARTIES DID NOT BOTHER TO COMPLY THE SUMMON NOR ANY APPLICATION FOR ADJOURNMENT OF THE PROCEEDING WAS R ECEIVED. IT IS ALSO NOTED BY THE ASSESSING OFFICER THAT SUBSEQUENTLY, THE AR OF THE ASSESSEE COMPANY ARRANGED BY SIGNING THE CONFIRMATION HIMSELF AND TH UMB IMPRESSION OF THE SO- CALLED PERSONS AND FURNISHED THE CONFIRMATIONS. THE REAFTER, IT IS NOTED BY THE ASSESSING OFFICER THAT ON VERIFICATION OF THE COPIE S OF SALE DEEDS, IT IS NOTED THAT BOTH THE SELLERS HAVE CONFIRMED IN THE SALE DEED NO .16038 AND 16122 DATED 2.3.2006 AND 3.3.2006 RESPECTIVELY THAT THEY HAVE R ECEIVED FULL PAYMENT FROM THE BUYER I.E. THE ASSESSEE COMPANY AND NO BALANCE AMOU NT WAS PAYABLE BY THE ASSESSEE COMPANY. IT IS OBSERVED BY THE ASSESSING O FFICER THAT IN VIEW OF THESE FACTS, IT IS CLEAR THAT THE ASSESSEE COMPANY HAS SH OWN BOGUS LIABILITY IN THE BALANCE SHEET AS THE AFORESAID SELLERS COULD NOT PR OVE THE TRANSACTION AS GENUINE. THE ASSESSING OFFICER MADE ADDITION OF THI S AMOUNT OF RS.17,32,420/- U/S 68 OF THE INCOME TAX ACT, 1961 BY HOLDING IT AS UN-EXPLAINED CASH CREDIT. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD CIT(A) BUT WITHOUT SUCCESS AND NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. . I.T.A. NO.1644/DEL/09 3/10 4. IT IS SUBMITTED BY LD AR OF THE ASSESSEE THAT CO PY OF PURCHASE DEED FOR BOTH THESE TRANSACTIONS ARE APPEARING IN THE PAPER BOOK ON PAGES 17-22 AND 23- 28. IT IS ALSO SUBMITTED THAT CONFIRMATIONS OF BOTH THESE PERSONS ARE ALSO AVAILABLE ON PAGES 29-30 OF THE PAPER BOOK. IT IS P OINTED OUT THAT THESE CONFIRMATIONS WERE FURNISHED TO THE ASSESSING OFFIC ER ON 28.11.2008 ALONG WITH THE LETTER, COPY OF WHICH IS AVAILABLE ON PAGE NO.8 5 OF THE PAPER BOOK. IT IS ALSO SUBMITTED THAT ON THE SAME DATE I.E. 28.11.2008, TH E ASSESSING OFFICER HAS PASSED ASSESSMENT ORDER WITHOUT EXAMINING THE VERAC ITY OF THESE CONFIRMATIONS AND HENCE THE ORDER OF THE ASSESSING OFFICER IS NOT JUSTIFIED. IT IS ALSO SUBMITTED THAT THE ASSESSING OFFICER HAS ISSUED ONLY ONE NOTI CE TO THESE TWO PERSONS BUT NO FOLLOW UP ACTION WAS TAKEN, AND WHEREAS THE ASSE SSEE HAS FURNISHED NAMES AND ADDRESSES OF THE CREDITORS, FURNISHED COPY OF T HE REGISTERED SALE DEEDS AND ALSO CONFIRMATIONS OF THE CREDITORS AND HENCE THE O NUS HAS BEEN DISCHARGED BY THE ASSESSEE AND THEREFORE, THE ADDITION MADE BY TH E ASSESSING OFFICER U/S 68 IS NOT JUSTIFIED. RELIANCE WAS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS:- A) NORTHERN BENGAL JUTE TRADING CO. LTD. V. CIT 70 ITR 407, 415. B) ITO V. A-ONE HOUSING COMPLEX LTD. 299 ITR 327. C) CIT V. ORISSA CORPORATION PVT. LTD. 159 ITR 78. D) KHANDELWAL CONSTRUCTIONS V. CIT 227 ITR 900 E) CIT V. SHRE BARKHA SYNTHETICS LTD. 270 ITR 477. 5. IT IS ALSO SUBMITTED BEFORE LD CIT(A) THAT THESE CREDITORS WERE REPAID IN THE SUCCEEDING YEAR. IT IS SUBMITTED THAT THE ASSES SEE HAS PAID THE MONEY TO THESE TWO PERSONS AND IN THIS REGARD, OUR ATTENTION WAS DRAWN TO PAPER BOOK PAGE NO. 32-33. AT THIS JUNCTURE, IT WAS ENQUIRED B Y THE BENCH REGARDING THE DATE AND MODE OF REPAYMENT TO THESE PERSONS BUT LD AR OF THE ASSESSEE COULD NOT SUBMIT ANYTHING IN THIS REGARD. 6. AS AGAINST THIS, LD DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. . I.T.A. NO.1644/DEL/09 4/10 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT ALL THESE CONTENT IONS WERE RAISED BEFORE LD CIT(A) AND ALL THESE JUDGMENTS WERE ALSO CITED BEFO RE HIM AND AFTER CONSIDERING ALL THESE JUDGMENTS AND THESE CONTENTIONS OF THE AS SESSEE, LD CIT(A) HAS DECIDED THIS ISSUE AGAINST THE ASSESSEE AS PER PARA NO.4-6 OF THE ORDER OF LD CIT(A) WHICH ARE REPRODUCED BELOW:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE O N BEHALF OF THE APPELLANT. THE BASIC DISPUTE IN THIS CASE IS REGARD ING THE PAYMENT OF STAMP DUTY AND REGISTRATION CHARGES IN RESPECT OF T HE PURCHASE OF PROPERTY HAVE SEEN THE SALE DEEDS NO.16038 AND 16122 IN RESP ECT TWO PROPERTIES. THE FIRST IS BETWEEN THE APPELLANT COMPANY (THE PUR CHASER) AND SHRI SULTAN SINGH (THE SELLER). THE PROPERTY WAS PURCHAS ED FOR A SUM OF RS.1,00,16,700/- WHICH WAS FULLY PAID TO THE SELLER AS CONFIRMED BY HIM IN THE SALE DEED. THE SECOND DEED IS BETWEEN APPELLANT AND JOINT OWNERS SHRI MAHABIR SINGH & RANBIR SINGH IN WHICH PROPERTY WORTH RS.1,88,56,250/- (WRONGLY MENTIONED BY APPELLANT AS RS.1,07,92,331/- IN SUBMISSION). IN THE PROPERTY TRANSACTIONS NORMALLY THE STAMP DUTY AND REGISTRATION CHARGES ARE BORNE BY THE PURCHASER. SE LLER DOES NOT HAVE ANY CONCERN WITH THE SAME., HOW AND WHY THE PART EXPENS ES FOR STAMP DUTY WERE PAID BY SELLERS IS NOT EXPLAINED. IT IS NOTABL E THAT BOTH SHRI SULTAN SINGH & MAHABIR SINGH ARE ILLTERATE VILLAGERS AND I T CANNOT BE EXPECTED OF THEM TO BEAR SOME EXPENSES WHICH THEY WERE NOT SUPP OSED TO. YOW WOULD THEY CHASE A DELHI BASED COMPANY TO RECOVER EXPENSES PAID BY THEM. THE SELLER IS INTERESTED IN GETTING FULL VALU E OF SALE PRICE. THESE PERSONS ALSO GOT THE SAME AND CONFIRMED THIS FACT T HAT BY SIGNING THE CONVEYANCE DEEDS. THERE IS NO EVIDENCE THAT THE AM OUNT OF RS.6,01,200/- AND RS. 11,31,400/- TOWARDS STAMP DUTY WERE PAID RE SPECTIVELY BY SHRI SULTAN SINGH & MAHABIR SINGH. SO FAR AS JUDICIAL DE CISIONS RELIED UPON BY THE APPELLANT ARE CONCERNED, THEY ARE ALL ON DIFFER ENT FACTS MOSTLY DEALING . I.T.A. NO.1644/DEL/09 5/10 WITH SHARE CAPITAL. MOREOVER, IN THIS CASE, INITIAL BURDEN TO PROVE GENUINENESS OF LIABILITY WAS ON APPELLANT WHICH IT DID NOT DISCHARGE. ON THE OTHER HAND ASSESSING OFFICER HAD MADE ENQUIRY BUT F AILED TOGET PROPER RESPONSE. THE APPELLANT HAS RELIED UPON THE SO CALLED CONFIRM ATIONS FROM SHRI SULTAN SINGH & MAHABIR SINGH. THEREFORE, I WILL ANALYSE TH E SAID CONFIRMATIONS. FOR READY REFERENCE COPY OF THE SAME IS MADE PART O F THIS ORDER AS ANNEXURE A(2 PAGES). AS CAN BE SEEN THEY ARE IN FAC T COPY OF AC COUNTS OF THESE TWO PERSONS IN THE BOOKS OF APPELLANT COMPANY . IN THE ACCOUNT OF SHRI SULTAN SINGH RS.1,00,16,700/- BEING PURCHASE P RICE OF PROPERTY IS SHOWN TOWARDS LND DEED NO.16038 ON 2.3.2006 AND HAS BEEN CREDITED TO DUCE PROPERTY & SERVICES LTD. (THE FINANCIER). APAR T FROM THAT RS.6,01,020/- IS SHOWN TOWARDS STAMP DUTY ON 31.3.2 006. SIMILARLY IN THE ACCOUNT OF SHRI MAHABIR SINGH AGGREGATE AMOUNT OF R S.1,07,92,331/- IS SHOWN ON 3.3.2006 TOWARDS DEED NO.16122. WHY THE AM OUNT DEBITED IS LESS THAN THE PURCHASE PRICE OF PROPERTIES IS NOT K NOWN. IN THIS ACCOUNT RS.11,31,400/- IS SHOWN TOWARDS STAMP DUTY ON SAME DATED 3.3.2006. THE NARRATION BELOW THE STAMP DUTY ENTRY IS BEING B ALANCE AMOUNT OF STAMP DUTY PAYABLE TO .. HOWEVER, THERE IS NO EVIDE NCE THAT STAMP DUTY WERE PAID BY SHRI SULTAN SINGH & MAHABIR SINGH. IN FACT THAT THE APPELLANT IN ITS EXPLANATION (REPRODUCED IN PARA 3 ABOVE) HAS RIGHTLY STATED THAT COMPANY HAD INCURRED LIABILITY OF RS.6,01,020/- AND RS.11,31,400/- AS STAMP DUTY ETC. ON PURCHASE OF PROPERTY. HOW THE LI ABILITY OF THE APPELLANT COMPANY WAS PAID FOR BY SELLERS OF PROPERTY IS NOT EXPLAINED OF PROVED. AS REGARDS SO CALLED CONFIRMATION OF THESE ACCOUNTS BY SHRI SULTAN SINGH & MAHABIR SINGH BY PUTTING THEIR THUMB IMPRESSION, IT CANNOT BE TAKEN AT FACE VALUE AND GENUINE FOR MORE THAN ONE REASON. FI RSTLY THEY BOTH ARE ILLITERATE PERSONS WHO CANNOT SIGN THEIR NAMES EVEN IN HIJNDI. HENCE THEY CANNOT BE EXPECTED TO UNDERSTAND THE IMPLICATION OF A FINANCIAL ACCOUNT . I.T.A. NO.1644/DEL/09 6/10 THAT TOO MADE IN ENGLISH. SECONDLY, FULL PAYMENT O F PURCHASE PRICE OF THE PROPERTY WAS MADE TO THE SELLER BY CHEQUES AS MENTI ONED IN THE DEEDS. HENCE THE INFORMATION IN ACCOUNT SHOWING FURTHER AM OUNT PAYABLE IS FACTUALLY. SINCE THEY HAD ALREADY RECEIVED ENTIRE S ALE PRICE FOR HIS LAND THEY HAD NOTHING TO LOSSE IN PUTTING THEIR THUMP IM PRESSION ON THE CONFIRMATION PRESENTED BY THE APPELLANT WITHOUT EVE N UNDERSTANDING IT. IT IS NOT KNOWN AS TO HOW THEIR THUMP IMPRESSION WAS OBTA INED AND WHETHER IT IS GENUINELY THEIRS (IT IS NOT LEGIBLE IN THE CONFI RMATION SUBMITTED). THIRDLY, THERE IS NO EVIDENCE THAT THIS PAYMENT WAS MADE BY THE SELLERS AS CLAIMED BY THE APPELLANT. COPY OF ACCOUNT IN THE BOOKS OF THE COMPANY CANNOT BE TREATED AS INDEPENDENT EVIDENCE FOR THIS. THEREFORE , THE CONFIRMATION CANNOT BE ACCEPTED AS EVIDENCE SUPPORTING APPELLANT S EXPLANATION. THE APPELLANT HAD FAILED TO PRODUCE SHRI SULTAN SINGH & MAHBIR SINGH IN WHOSE NAME LIABILITY WAS SHOWN. THE LIABILITY IN TH EIR NAME IS NOT JUSTIFIED ON FACTS AND EVIDENCE ON RECORD. IT IS QUITE UNUSUA L CLAIM CONSIDERING FACTS AND CIRCUMSTANCES OF THE CASE. AT THE COST OF REPET ITION IT MAY BE MENTIONED THAT PRIMARY ONUS TO PRESENT THE CREDITOR S FOR EXAMINATION IS ON THE APPELLANT. THEREFORE, IN ABSENCE OF ANY EVIDENC E THE LIABILITY WAS RIGHTLY TREATED BY THE ASSESSING OFFICER AS BOGUS B Y THE ASSESSING OFFICER. THEREFORE, ADDITION OF RS.17,32,420/- IS CONFIRMED. 8. FROM THE ABOVE, WE FIND THAT LD CIT(A) HAS EXAMI NED THE FACTS AND DECIDE THE ISSUE IN FAVOUR OF THE REVENUE. WE FIND THAT GENERALLY, PAYMENT OF STAMP DUTY IS THE LIABILITY OF THE PURCHASER AND TH E SAME IS BEING ADMITTED BY THE ASSESSEE ALSO BECAUSE AS PER THE ASSESSEE ALSO, THE STAMP DUTY ON PURCHASE OF PROPERTY IS THE LIABILITY OF THE ASSESSEE BEING THE PURCHASER AND THE ASSESSEE HAS SHOWN THE SAME IN ITS BOOKS OF ACCOUNT BY INCLU DING THE STAMP DUTY IN THE COST OF LAND PURCHASED. NOW, THE DISPUTE IS REGARDI NG THIS FACT AS TO WHO PAID THESE AMOUNTS OF STAMP DUTY WITH REGARD TO THESE TW O PURCHASES. IT IS THE CLAIM OF THE ASSESSEE THAT THESE TWO PERSONS, TO WHOM THE ASSESSEE HAS PAID THE AMOUNT OF RS.100.16 LAKHS AND RS.188.56 LAKHS RESPE CTIVELY AS PURCHASE . I.T.A. NO.1644/DEL/09 7/10 CONSIDERATION BY WAY OF CHEQUES, HAVE FINANCED THE ASSESSEE FOR RS.6,01,020/- AND RS.11,31,400/- ENABLING THE ASSESSEE TO MAKE PA YMENT OF STAMP DUTY. THERE IS NO MENTION IN THE PURCHASE DEED THAT THE SELLER WILL MAKE THE PAYMENT OF STAMP DUTY AND THE BUYER WILL REIMBURSE THE SAME AFTERWARDS. NO AGREEMENT HAS BEEN BROUGHT ON RECORD REGARDING THIS CONTENTIO N AND NO EVIDENCE IS FURNISHED TO SHOW THAT BOTH THESE AMOUNTS WERE REPA ID BY THE ASSESSEE IN THE NEXT FINANCIAL YEAR. WE FIND THAT THIS SUBMISSION W AS MADE BY THE ASSESSEE FOR THE FIRST TIME BEFORE LD CIT(A) AND THAT TOO IN A V AGUE MANNER WITHOUT GIVING THE DATE OF REPAYMENT AND MODE OF PAYMENT. BEFORE US AL SO, IN SPITE OF SPECIFIC ENQUIRY, BY LD AR OF THE ASSESSEE COULD NOT FURNISH THESE DETAILS. BEFORE THE ASSESSING OFFICER, LAST SUBMISSION WAS MADE BY THE ASSESSEE ON 28.11.2008 AND IN THE SAME ALSO, THERE IS NO MENTION REGARDING REPAYMENT OF THESE LIABILITIES WHEREAS THE SUBSEQUENT FINANCIAL YEAR HAS ENDED ON 31.3.2007. REGARDING THIS SUBMISSION OF THE ASSESSEE THAT LAST SUBMISSION ALO NG WITH CONFIRMATION WAS FURNISHED BY THE ASSESSEE TO THE ASSESSING OFFICER ON 28.11.2008 AND THE ASSESSMENT ORDER IS ALSO OF THE SAME DATE, WE ARE O F THE CONSIDERATION OPINION THAT FOR THIS REASON ALONE, IT CANNOT BE SAID THAT THE CONFIRMATION OF CREDITORS SUBMITTED BY THE ASSESSEE WERE NOT CONSIDERED BY TH E ASSESSING OFFICER. IN FACT, THE ASSESSING OFFICER HAS NOTED IN THE ASSESSMENT O RDER THAT THE LD AR OF THE ASSESSEE COMPANY ARRANGED BY SIGNING THE CONFIRMATI ON HIMSELF AND THUMB IMPRESSION OF THE SO-CALLED PERSONS AND FURNISHED T HE CONFIRMATIONS. IT SHOWS THAT CONFIRMATIONS WERE DULY CONSIDERED BY THE ASSE SSING OFFICER. WE ARE OF THE CONSIDERED OPINION THAT IN SUPPORT OF THIS ABNORMAL CONTENTION THAT THE SELLERS HAVE FINANCED THE ASSESSEE FOR PAYMENT OF STAMP DUT Y CHARGES, THESE SO-CALLED CONFIRMATIONS CONTAINING THUMB IMPRESSION OF TWO PE RSONS IS NOT SUFFICIENT. THE ASSESSEE HAS NOT EXPLAINED THE REASONS AND CIRCUMST ANCES UNDER WHICH THOSE TWO PERSONS HAVE FINANCED THE ASSESSEE FOR PAYMENT OF STAMP DUTY. IT IS ALSO NOT MENTIONED WHETHER THESE AMOUNTS WERE PAID BY THOSE TWO PERSONS IN CASH OR BY WAY OF CHEQUE AND ALTHOUGH THE AR OF THE ASSESSEE H AS SUBMITTED BEFORE LD CIT(A) THAT THESE AMOUNTS WERE REPAID BY THE ASSESS EE IN THE SUBSEQUENT YEAR, NO DATE OF PAYMENT AND NO MODE OF PAYMENT HAS BEEN SPECIFIED BEFORE LD . I.T.A. NO.1644/DEL/09 8/10 CIT(A) AND BEFORE US ALSO, IN SPITE OF SPECIFIC ENQ UIRY, THESE DETAILS WERE NOT FURNISHED. SUMMONS WERE ISSUED BY THE ASSESSING OFF ICER TO THESE PERSONS WHICH WERE NOT COMPLIED BY THEM. THE ASSESSEE COULD HAVE PRODUCED THOSE PERSONS BEFORE THE ASSESSING OFFICER TO SUBSTANTIAT E THIS CLAIM BUT THIS HAS NOT BEEN DONE BY THE ASSESSEE. THIS IS NOT THE CASE OF THE ASSESSEE THAT THE RELATIONS OF THE ASSESSEE WITH THESE TWO PERSONS AR E NOT GOOD AND HENCE THE ASSESSEE COULD NOT PRODUCE THEM. BEFORE US ALSO, NO SUCH CONTENTION IS RAISED THAT IF AN OPPORTUNITY IS PROVIDED, THE ASSESSEE CA N PRODUCE THESE PERSONS BEFORE THE ASSESSING OFFICER. UNDER THESE CIRCUMST ANCES AND CONSIDERING THE FACTS OF THE PRESENT CASE AS DISCUSSED ABOVE, WE AR E OF THE CONSIDERED OPINION THAT THE ASSESSEE COULD NOT SATISFY AND ESTABLISH T HIS CLAIM THAT THE PAYMENT OF STAMP DUTY WAS MADE BY THESE TWO PERSONS ON BEHALF OF THE ASSESSEE AND HENCE WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD CIT(A) ON THIS ISSUE. 9. REGARDING RELIANCE PLACED BY THE ASSESSEE ON VAR IOUS JUDGMENTS, WE FIND THAT IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THESE JUDGMENTS ARE NOT APPLICABLE. IN THE CASE OF NORTHERN BENGAL JUTE MFG . CO. LTD (SUPRA), IT HAS BEEN OBSERVED BY HON'BLE CALCUTTA HIGH COURT THAT THERE CANNOT BE ONE GENERAL OR COMMON PROPOSITION OF LAW WHICH COULD BE GUIDING YA RD-STICK IN THE MATTER AND EACH CASE HAS TO BE DECIDED ON THE FACTS AND CIRCUM STANCES OF THE CASE. IT WAS ALSO OBSERVED THAT THE SURROUNDING CIRCUMSTANCE SHO ULD ALSO BE CONSIDERED AND IN THE PRESENT CASE AS NOTED ABOVE, WE FIND THAT TH E ASSESSEE COULD NOT SATISFY AND ESTABLISH THAT THE IMPUGNED AMOUNTS WERE FINANC ED BY THESE TWO PERSONS AND HENCE IN THE FACTS OF THE PRESENT CASE, THIS JU DGMENT DOES NOT HELP THE ASSESSEE. 10. SIMILARLY, THE TRIBUNAL DECISION IN THE CASE OF A-ONE HOUSING COMPLEX LTD. (SUPRA) ALSO DOES NOT SUPPORT THE ASSESSEE IN THE PRESENT CASE. IN THAT CASE, THE ISSUE WAS REGARDING SHARE APPLICATION MONEY WHI CH WAS RECEIVED BY THE ASSESSEE THROUGH ACCOUNT PAYEE CHEQUE AS NOTED BY T HE TRIBUNAL. IN THIS CASE, . I.T.A. NO.1644/DEL/09 9/10 THE TRIBUNAL HAS DECIDED THIS ISSUE IN FAVOUR OF TH E ASSESSEE BY FOLLOWING THE JUDGMENT OF HON'BLE DELHI COURT RENDERED IN THE CAS E OF SOPHIA FINANCE LTD. AS REPORTED IN 113 ITR 472 (DEL.) AND SINCE THE FACTS OF PRESENT CASE ARE DIFFERENT, THESE JUDGMENTS ALSO DO NOT HELP THE ASSESSEE IN TH E PRESENT CASE BECAUSE IN THE PRESENT CASE MODE OF RECEIPT IS NOT CLEAR AND F ACT OF RECEIPT FROM THESE TWO PERSONS IS ALSO NOT ESTABLISHED. 11. NOW, WE CONSIDER THE JUDGMENT OF HON'BLE APEX C OURT RENDERED IN THE CASE OF ORISSA CORPORATION PVT. LTD. (SUPRA). IN TH AT CASE, CONFIRMATION WAS PROVIDED CONTAINING INDEX NUMBER OF THOSE CREDITORS . IT HAS BEEN HELD BY THE HON'BLE APEX COURT THAT IT WAS IN KNOWLEDGE OF THE REVENUE THAT THE CREDITORS WERE INCOME TAX ASSESSEE AND THEIR INDEX NUMBERS WE RE FILED IN THE REVENUE RECORD. IT WAS ALSO OBSERVED THAT THE REVENUE, APAR T FROM ISSUING NOTICE U/S 131 AT THE INSTANCE OF THE ASSESSEE DID NOT PURSUE THE MATTER FURTHER. IN THE PRESENT CASE, WE FIND THAT THOSE TWO PERSONS OF WHOM THE SA ID CONFIRMATIONS ARE SUBMITTED BY THE ASSESSEE ARE NOT INCOME TAX ASSESS ES BECAUSE WE FIND THAT NO GIR NO. OR PAN NO. IS MENTIONED IN THE SO-CALLED CO NFIRMATIONS AVAILABLE ON PAGE NO. 29 & 30 AND UNDER THESE FACTS, WE FEEL THA T THIS JUDGMENT OF HON'BLE APEX COURT ALSO DOES NOT SUPPORT THE CASE OF THE AS SESSEE. 12. NOW, WE CONSIDER THE JUDGMENT OF HON'BLE GAUHAT I HIGH COURT RENDERED IN THE CASE OF KHANDELWAL CONSTRUCTION (SUPRA). WE FIN D THAT IN THIS CASE ALSO, THE ASSESSEE HAS FURNISHED CONFIRMATION LETTERS AND THE ASSESSEE HAS ALSO GIVEN GIR NO. OF THE CREDITORS INASMUCH AS THEY WERE ALSO ASSESSES UNDER THE INCOME TAX DEPARTMENT. HON'BLE GAUHATI HIGH COURT HAS FOLL OWED THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF ORISSA C ORPORATION PVT. LTD. (SUPRA). SINCE, WE HAVE NOTED THAT THE JUDGMENT OF HON'BLE A PEX COURT RENDERED IN THE CASE OF ORISSA CORPORATION PVT. LTD. (SUPRA) DOES N OT SUPPORT THE CASE OF THE ASSESSEE IN THE PRESENT CASE, FOR THE SAME REASON, THIS JUDGMENT OF HON'BLE GAUHATI HIGH COURT ALSO DOES NOT SUPPORT THE CASE O F THE ASSESSEE IN THE PRESENT CASE. . I.T.A. NO.1644/DEL/09 10/10 13. NOW, WE CONSIDER THE JUDGMENT OF HON'BLE RAJAST HAN HIGH COURT RENDERED IN THE CASE OF SHREE BARKHA SYNTHETICS LTD. IN THI S CASE, THE DISPUTE WAS REGARDING RECEIPT OF SHARE APPLICATION MONEY WHICH HAS BEEN DELETED BY FOLLOWING THE JUDGMENT OF HON'BLE APEX COURT RENDER ED IN THE CASE OF CIT V. STELLER INVESTMENT LTD. (SUPRA) AS REPORTED IN 251 ITR 263 AND BY APPLYING THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF ORISSA CORPORATION PVT. LTD. IN THIS CASE ALSO, THE ASSESSEE HAS FURNISHED GIR NO. PAN NO., AND CONFIRMATIONS OF THE INVESTORS AND IT IS ALSO NOTED THAT NINE OUT OF TEN INVESTORS HAVE CONFIRMED THE FACT OF MAKING INVESTMENT AND TH EY HAVE ALSO CONFIRMED THAT THEY WERE INCOME TAX ASSESSEE AND THE MODE OF RECEI PT HAS BEEN THROUGH BANKING CHANNEL. IN THE PRESENT CASE, THE ALLEGED CREDITORS ARE NEITHER INCOME TAX ASSESSES AND THE MODE OF ALLEGED RECEIPT IS NOT CLEAR AND THEY HAVE NEITHER APPEARED BEFORE THE ASSESSING OFFICER AND WERE NOT PRODUCED BY THE ASSESSEE AND UNDER THESE FACTS, WE ARE OF THE CONSIDERED OPI NION THAT THIS JUDGMENT OF HON'BLE RAJASTHAN HIGH COURT IS ALSO NOT APPLICABLE IN THE PRESENT CASE. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED.. 15. ORDER PRONOUNCED IN THE OPEN COURT ON 21ST AU GUST, 2009. SD/- SD/- (I.P. BANSAL) (A.K. GARO DIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 21 .8.2009. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).