ITO, New Delhi V. M/s Corola Builders Pvt. Ltd., New Delhi

ITA 175/DEL/2011

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6713 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-01-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 12-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Tax effect; Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 175/DEL/2011 ASSESSMENT YEAR: 2006-07 ITO, WARD 3(4) VS. M/S COROLA BUILDERS PVT. LT D., NEW DELHI 1201, PRAGATI GOWER, 26, RAJENDRA PLACE, NEW DELHI 110 008 (PAN: AACCC6370J) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ANIL KUMAR SHARMA, SR. DR RESPONDENT BY : NONE ORDER PER H.S. SIDHU, J.M. THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 1.11.2010 OF LD. CIT(A)-IV, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING ADDITION OF RS. 18,32,264/- MADE U/S 68 OF THE IT ACT, 1961 ON ACCOUNT OF UNEXPLAINED CASH CREDITS IGNORING THAT THE ASSESSE E COMPANY FAILED TO DISCHARGE ITS PRIMARY ONUS TO PROVE THE CREDITWO RTHINESS OF THE SAID LENDER. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING ADDITION OF RS. 10,00,000/- MADE ON ACCOUNT OF SHARE APPLICATIO N MONEY AND RS. 1,00,000/- ON ACCOUNT OF SHARE CAPITAL IGNORING THAT THE ASSESSEE COMPANY FAILED TO PRODUCE THE SHARE HOLDER S/APPLICANTS FOR VERIFICATION AND GENUINENESS OF ITS CLAIM. 3. THE OBSERVATIONS MADE BY THE HONBLE SUPREME COU RT IN THE CASE OF CIT VS ORISSA CORPORATION PVT LTD (1986) 156 ITR 78 (SC) WERE MADE IN THE CONTEXT OF THE FACTS OF THE 'CASE AND CANNOT BE SAID TO HAVE 2 LAID DOWN ANY BLINDING PRINCIPAL OF LAW UNDER ARTIC LE 141 OF THE CONSTITUTION AS ALSO STATED IN THE OBSERVATIONS OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT STATE COO PERATIVE BANK LTD. VS CIT (2001) 167 CTR (GUJ.) 34 (2001) 250 ITR 229 (GUJ.). 4. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELETING ADDITION OF RS. 3,54,585/- MADE ON ACCOUNT OF COMMISSION ON SA LE IGNORING THAT THE ASSESSEE COMPANY FAILED TO PRODUCE ANY SUPPORTI NG DOCUMENT AND THE COMMISSION AGENT. 5. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIG HT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INV OLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL PURPOSE W OULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THERE FORE, WE ARE DECIDING THE PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEAR ING THE LD. DR AND PERUSING THE RECORDS. 3. WE FIND THAT REVENUE IN THE GROUNDS OF APPEAL BE FORE THE TRIBUNAL HAS CHALLENGED THE DELETION OF ADDITIONS OF RS. 18,32, 264/- VIDE GROUND NO. 1, RS. 10,00,000/- & RS. 1,00,000/- VIDE GROUND NO. 2 AND RS. 3,54,585/- VIDE GROUND NO. 3, HENCE, THE TAX EFFECT IN THE REVENUE S APPEAL IS LESS THAN RS.10,00,000/-, THEREFORE, THE DEPARTMENTS APPEAL IS NOT MAINTAINABLE, IN VIEW OF THE CIRCULAR NO. 21/2015 DATED 10 TH DECEMBER, 2015 ISSUED VIDE F.NO. 3 279/MISC. 142/2007-ITJ (PT.) BY THE CBDT. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PARA NOS. 3 & 10 OF THE AFORESAID CBDTS C IRCULAR ARE REPRODUCED AS UNDER:- 3. HENCEFORTH, APPEALS/ SLPS SHALL NOT BE FILED IN CASES WHERE THE TAX EFFECT DOES NOT EXCEED THE MONETARY L IMITS GIVEN HEREUNDER: S NO APPEALS IN INCOME-TAX MATTERS MONETARY LIMIT (IN RS) 1 BEFORE APPELLATE TRIBUNAL 10,00,000/- 2 BEFORE HIGH COURT 20,00,000/- 3 BEFORE SUPREME COURT 25,00,000/- IT IS CLARIFIED THAT AN APPEAL SHOULD NOT BE FILED MERELY BECAUSE THE TAX EFFECT IN A CASE EXCEEDS THE MONETA RY LIMITS PRESCRIBED ABOVE. FILING OF APPEAL IN SUCH CASES IS TO BE DECIDED ON MERITS OF THE CASE. 10. THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/ TRIBUNALS. PENDING APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRAWN/ NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE INSTRUCTI ONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEA L WAS FILED. 4. IT IS NOT IN DISPUTE THAT THE BOARDS INSTRUCTIO N OR DIRECTIONS ISSUED TO THE INCOME-TAX AUTHORITIES ARE BINDING ON THOSE AUTHORI TIES, THEREFORE, THE DEPARTMENT SHOULD HAVE WITHDRAWN/ NOT PRESSED THE P RESENT APPEAL, IN VIEW OF THE AFORESAID INSTRUCTIONS SINCE THE TAX EFFECT IN THE INSTANT APPEAL IS LESS THAN THE AMOUNT OF RS. 10 LACS, PRESCRIBED IN THE ABOVE SAID CBDTS INSTRUCTIONS. 5. KEEPING IN VIEW THE CBDT INSTRUCTION NO. 21/2015 DATED 10 TH DECEMBER, 2015, WE ARE OF THE VIEW THAT THE REVENUE SHOULD HA VE WITHDRAWN/ NOT PRESSED 4 THE INSTANT APPEAL BEFORE THE TRIBUNAL. WE ARE ALS O OF THE VIEW THAT THE SAID INSTRUCTIONS ARE APPLICABLE FOR THE PENDING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN TRIBUNAL. ACCORDINGLY, THE REVENUES APPEAL IS DISMISSED. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/02/2017. SD/- SD/- (L.P. SAHU) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 02/02/2017 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR