M/s. Compage Finlease (P) Ltd., New Delhi V. ITO, New Delhi

ITA 192/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61751 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-07-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 12-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S AHLAWAT
• Keywords: Unexplained cash credit; Additional evidence
• Section: 133(6); 131; 68

Judgement Text

I.T.A. NO. 192/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 192/DEL/2012 A.Y. : 2002-03 M/S COMPAGE FINLEASE (P) LTD., 416, PRATAP BHAWAN, 5-BAHADUR SHAH ZAFAR MARG, NEW DELHI (PAN : AAACC4834H) VS. INCOME TAX OFFICER, WARD 3(4), NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : MS. MONIKA AGGARWAL, CA DEPARTMENT BY : SH. J.S. AHLAWAT, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM PER SHAMIM PER SHAMIM PER SHAMIM YAHYA: AM YAHYA: AM YAHYA: AM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IV, NEW DEL HI DATED 18.11.2011 PERTAINING TO ASSESSMENT YEAR 2002-03. 2. THE GROUNDS RAISED READ AS UNDER:- I) THAT THE LD. CIT(A) HAS ERRED IN LAW WHILE CONF IRMING THE ADDITION OF ` 501000/- MADE BY THE ASSESSING OFFICER U/S. 68 OF THE I.T. ACT, 1961 AND THEREFOR E THE ADDITION MAY PLEASE BE DELETED. II) THAT THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW WHILE CONTENDING THAT THE FACTS OF THE I.T.A. NO. 192/DEL/2012 2 ASSESSEE ARE DIFFERENT WITH THAT OF C.I.T. VS. LOVE LY EXPORTS 216 CTR 195, AND THEREFORE APPLYING THE RAT IO OF RESPECTIVE JUDGMENT THE ADDITION OF ` 501000/- MA Y PLEASE BE DELETED. III) THAT WE CRAVE TO ADD, ALTER, DELETE, MODIFY OR WITHDRAW ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING. 3. IN THIS CASE INFORMATION WAS RECEIVED BY THE A SSESSING OFFICER FROM THE INVESTIGATION WING WITH REGARD TO BOGUS ACC OMMODATION RELATING TO RECEIPT OF ` 5,01,000/- BY THE ASSESSE E COMPANY FROM ONE M/S VINIYAS FINANCE AND INVESTMENT PVT. LTD. DURING T HE COURSE OF THE ASSESSMENT PROCEEDINGS U/S. 143(3)/148, THE ASSESSI NG OFFICER ASKED THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF TH E DEPOSIT WHICH WAS CLAIMED BY THE ASSESSEE AS SHARE APPLICATION MONEY. THE ASSESSEE PRODUCED CERTAIN DETAILS SUCH AS MEMORANDUM AND ARTI CLES OF ASSOCIATION, CERTIFICATE OF INCORPORATION AND PAN DE TAILS OF M/S VINIYAS FINANCE AND INVESTMENT PVT. LTD. DOWNLOADED FROM THE WEBSITE OF THE INCOME TAX DEPARTMENT. THE ASSESSING OFFICER FURTHER ASKED THE ASSESSEE TO FILE CONFIRMATION FROM THE ALLEGED INVEST OR AND TO PRODUCE THE PERSONS CONTROLLING THE ABOVE COMPANY WHICH WAS NOT COMPLIED WITH BY THE ASSESSEE. THE ASSESSING OFFICER TH EN ISSUED SUMMONS U/S. 131 TO SHRI ASHOK JHA AND SHRI VIPLAV BHARTI, DIRECTORS OF THE INVESTOR COMPANY AS PER INFORMATION OBTAINED BY THE A SSESSING OFFICER I.T.A. NO. 192/DEL/2012 3 FROM THE COPY OF ACCOUNT OPENING FORM OBTAINED BY HIM FROM KARUR VYSYA BANK LTD., U/S. 133(6) OF THE ACT. HOWEVER, WHILE THE SUMMONS SENT TO SHRI JHA WAS RETURNED BY THE POSTAL AUTHOR ITIES WITH THE COMMENTS NO SUCH PERSONS, THERE WAS NO ATTENDANCE OR FILING OF ANY SUBMISSION IN RESPONSE TO THE SUMMONS ISSUE TO SHRI BHARTI. THE ASSESSING OFFICER ACCORDINGLY, ADDED THE ABOVE AMO UNT OF ` 5,01,000/- AS UNEXPLAINED CASH CREDIT U/S. 68 IN THE HANDS OF THE ASSESSEE COMPANY. 4. IN THE APPELLATE PROCEEDINGS, ASSESSEE FILED APP LICATION FOR ADDITIONAL EVIDENCES U/S. 46A OF THE I.T. ACT ENCLO SING THEREWITH THE COPY OF MASTER DETAILS OF THE ALLEGED INVESTOR COMPA NY DOWNLOADED FROM THE WEBSITE OF MCA. THESE SUBMISSION WERE RE MANDED TO THE FILE OF THE ASSESSING OFFICER BY THE LD. COMMISSIONE R OF INCOME TAX (A). ASSESSING OFFICER OBSERVED THAT IN THE REMAND REPORT THAT DOCUMENTS FURNISHED BY THE ASSESSEE ARE SIMPLY THOSE WHICH CAN BE ACCESSED FROM PUBLIC SOURCE AS INTERNET AND THE ASSE SSEE HAS FAILED TO PRODUCE ANY CONFIRMATION OR ANY OTHER DOCUMENT FRO M THE ALLEGED INVESTOR COMPANY AND HAS ALSO NOT PRODUCED THE DIRE CTORS OF THE SAID COMPANY. LD. COMMISSIONER OF INCOME TAX (A) FURT HER NOTED THAT ASSESSING OFFICER HAS CONDUCTED INDEPENDENT ENQUIR IES BY ISSUE OF NOTICE U/S. 133(6) TO THE BANK AND SUMMONS U/S. 131 TO THE DIRECTORS, I.T.A. NO. 192/DEL/2012 4 BUT THE SAID SUMMONS WERE RETURNED UNSERVED IN CAS E OF ONE DIRECTOR AND IN RESPECT OF THE OTHER DIRECTOR NO REPLY WAS RE CEIVED. LD. COMMISSIONER OF INCOME TAX (A) FURTHER NOTED THAT SI NCE THERE WAS NO ADDITIONAL EVIDENCE IN SUBSTANCE, THE APPLICATION UNDER RULE 46A FILED BY THE ASSESSEE IS INFRUCTUOUS AND THE SAME WAS AC CORDINGLY REJECTED. LD. COMMISSIONER OF INCOME TAX (A) CONCLUDED AS UNDE R:- UNDER THE FACTS AND CIRCUMSTANCES AS DISCUSSED ABOVE AND CONSIDERING THE LEGAL POSITION IN THE MATT ER, I FIND THAT THE APPELLANT HAS FAILED TO DISCHARGE I TS ONUS WITH REGARD TO PROVING THE NATURE AND SOURCE OF THE SHARE APPLICATION MONEY. THE APPELLANT HAS NOT PRODUCED ANY RELEVANT DOCUMENT FROM THE SHAREHOLDER SUCH AS CONFIRMATION, COPY OF BANK STATEMENT, COPY O F INCOME TAX RETURN, COPY OF BALANCE SHEET, COPY OF SHARE APPLICATION FORM, SHARE ALLOTMENT REGISTER ETC. AND HAS NOT PRODUCED THE DIRECTORS OF THE SHAREHOLDE R COMPANY. THE DETAILS PRODUCED BY THE APPELLANT ARE ONLY THOSE WHICH CAN BE DOWNLOADED FROM THE WEBSITE OF I.T. DEPARTMENT OR MCA. THE ENQUIRY DONE BY THE ASSESSING OFFICER ALSO DID NOT YIELD ANY RESULT AN D THE SUMMONS ISSUED TO THE DIRECTORS WAS EITHER RETURNED I.T.A. NO. 192/DEL/2012 5 UNSERVED OR NOT COMPLIED WITH. IN VIEW OF THE ABOVE , I HAVE NO HESITATION IN UPHOLDING THE IMPUGNED ADDITIO N OF ` 5,01,000/- U/S. 68 OF THE ACT. THE ABOVE GRO UNDS OF APPEAL ARE ACCORDINGLY, REJECTED. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPE AL BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE REVENUE HAS ALLEGED IN THIS CASE THAT INFORMATION WAS RECEIVED FROM THE INVESTIGATION WING WITH REGAR D TO BOGUS ACCOMMODATION RELATING TO RECEIPT OF ` 5,01,000/- B Y THE ASSESSEE COMPANY FROM ONE M/S VINIYAS FINANCE AND INVESTMENT PV T. LTD. HOWEVER, LD. COUNSEL OF THE ASSESSEE CONTENDED THAT THE SAID INFORMATION WAS NOT BEFORE ASSESSEE AND ASSESSEE HA D NOT OPPORTUNITY TO REBUT THE SAME. LD. COUNSEL OF THE ASSESSEE FU RTHER PLEADED THAT IF AN OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE, THE A SSESSEE SHALL BE ABLE TO SUBMIT THE REQUISITE DOCUMENTS TO THE SATISFA CTION OF THE ASSESSING OFFICER. 7. LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND , RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 8. WE FIND THAT INTEREST OF JUSTICE WILL BE SERVED IN THIS REGARD, IF THE MATTER IS REMITTED TO THE FILE OF THE ASSESSING OFFIC ER TO CONSIDER THE I.T.A. NO. 192/DEL/2012 6 ISSUE AFRESH BY GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/7/2012, UP ON CONCLUSION OF HEARING. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 10/7/2012 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES