ITO, New Delhi V. M/s. Amit Scan Pvt. Ltd., New Delhi

ITA 227/DEL/2012

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3789 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH JAIN
• Keywords: Additional evidence
• Section: 68; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES A : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA.NO.227/DEL./2012 ASSESSMENT YEAR 2007-2008 THE INCOME TAX OFFICER, WARD-1(4), ROOM NO.380B, C.R. BUILDING, I.P. ESTATE, NEW DELHI. VS. M/S. AMIT SCAN PVT. LTD., 622/IDI, GADODIA ROAD, UPPAR ANAND PARBAT INDUSTRIAL AREA, NEW DELHI. PAN AADCA2045F (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI AMIT KATOCH, SR. D.R. FOR ASSESSEE : SHRI RAKESH JAIN, AND SHRI GURJEET SINGH, ADVOCATES DATE OF HEARING : 13.02.2019 DATE OF PRONOUNCEMENT : 19.02.2019 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-IV, NEW DELHI, DATED 22 ND NOVEMBER, 2011, FOR THE A.Y. 2007-2008, CHALLENGING THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION OF RS.75 LAKHS UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 UNDER SECTION 154 OF THE I.T. ACT, 1961. 2 ITA.NO.227/DEL./2012 AMIT SCAN PVT. LTD., NEW DELHI. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT A.O. ASKED THE ASSESSEE TO FILE THE DETAILS REGARDING SHARE APPLICANTS. THE ASSESSEE WAS DIRECTED TO FILE COMPLETE NAME AND ADDRESS, I.T. PARTICULARS, SHARE PREMIUM RECEIVED, CONFIRMATION AND OTHER DETAILS. THE ASSESSEE WAS DIRECTED TO PRODUCE THE BOOKS OF ACCOUNT. THE A.O. NOTED THAT ASSESSEE HAS RECEIVED RS.75 LACS, OUT OF WHICH, SHARE CAPITAL IS OF RS.15 LACS AND SHARE PREMIUM WAS OF RS.60 LACS. NO DETAILS OF THE SHARE APPLICANTS WERE FILED. THE A.O, THEREFORE, MADE THE ADDITION OF RS.75 LAKHS UNDER SECTION 68 OF THE INCOME TAX ACT, 1961. 3. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A). THE ASSESSEE FILED APPLICATION FOR ADMISSION OF THE ADDITIONAL EVIDENCES. THE LD. CIT(A) CALLED FOR THE REMAND REPORT FROM THE A.O. IN WHICH THE A.O. SUBMITTED THAT ASSESSEE DID NOT CO-OPERATE AT THE ASSESSMENT STAGE. IT WAS ADDED THAT PERUSAL OF THE DETAILS FILED SUGGEST THAT NO BANK STATEMENT HAS BEEN FILED FOR VERIFYING THE AMOUNT RECEIVED AS SHARE CAPITAL AND PREMIUM. THE A.O. THEREFORE, 3 ITA.NO.227/DEL./2012 AMIT SCAN PVT. LTD., NEW DELHI. RECOMMENDED THAT ADDITIONAL/FRESH EVIDENCE SHOULD BE REJECTED OUT-RIGHTLY AS NUMEROUS OPPORTUNITIES WERE GIVEN TO THE ASSESSEE. THE ASSESSEE, HOWEVER, EXPLAINED THAT IT HAS NOT RECEIVED ANY NOTICE FROM THE A.O. THEREFORE, NO DOCUMENTS HAVE BEEN FILED BEFORE A.O. THE LD. CIT(A) HAS ACCEPTED THE EXPLANATION OF ASSESSEE THAT NO SUFFICIENT OPPORTUNITY HAD BEEN GIVEN TO THE ASSESSEE WHICH PERSUADED LD. CIT(A) IN ADMITTING THE ADDITIONAL EVIDENCE AT THE APPELLATE STAGE. THE LD. CIT(A) DECIDED THE APPEAL OF ASSESSEE VIDE ORDER DATED 24 TH NOVEMBER 2010. THE ASSESSEE FILED THE APPLICATION UNDER SECTION 154 OF THE INCOME TAX ACT BEFORE THE LD. CIT(A) STATING THEREIN THAT THIS GROUND HAVE NOT BEEN DECIDED ON MERITS. IT WAS SUBMITTED THAT THE ADDITIONAL EVIDENCES HAVE BEEN ADMITTED AND REMAND REPORT HAD BEEN OBTAINED FROM A.O, BUT, THIS GROUND HAS NOT BEEN DECIDED ON MERIT. THEREFORE, THERE APPEARS MISTAKE APPARENT ON RECORD. THE LD. CIT(A) ACCEPTED THE EXPLANATION OF ASSESSEE BY HOLDING THAT THIS GROUND HAS NOT BEEN DISPOSED OF ON MERIT. THE LD. CIT(A), THEREFORE, PASSED THE IMPUGNED 4 ITA.NO.227/DEL./2012 AMIT SCAN PVT. LTD., NEW DELHI. ORDER UNDER SECTION 154 OF THE INCOME TAX ACT, DATED 22 ND NOVEMBER, 2011. 3.1. THE LD. CIT(A) NOTED IN THE IMPUGNED ORDER THAT A.O. ASKED THE ASSESSEE TO FILE CONFIRMATION IN RESPECT OF SHARE APPLICATION MONEY TO PROVE THE SOURCE THEREOF. THE ASSESSEE DID NOT APPEAR BEFORE A.O. THE ASSESSEE MOVED AN APPLICATION UNDER RULE 46A FOR ADMISSION OF THE ADDITIONAL EVIDENCE WITH RESPECT TO RECEIPT OF THE SHARE APPLICATION MONEY. THE DOCUMENTS FILED BY ASSESSEE WERE SENT TO A.O. FOR HIS COMMENTS AND REMAND REPORT. THE A.O. IN THE REMAND REPORT DID NOT POINT-OUT ANY SPECIFIC DEFICIENCY AS TO WHY SHARE APPLICATION MONEY BE NOT TREATED AS GENUINE AND THE ADDITION MADE IN THIS REGARD BE NOT DELETED EXCEPT POINTING-OUT THAT THE APPLICATION UNDER RULE 46A CANNOT BE ENTERTAINED. THE LD. CIT(A) NOTED THAT COUNSEL FOR ASSESSEE EXPLAINED BEFORE HIM THAT IT IS NOT A CASE OF ACCOMMODATION ENTRY INVOLVING OF NON-EXISTING PARTIES. THE LD. CIT(A) NOTED THAT ASSESSEE HAS RECEIVED SHARE APPLICATION MONEY OF RS.75 LAKHS FROM THE FOLLOWING PARTIES : 5 ITA.NO.227/DEL./2012 AMIT SCAN PVT. LTD., NEW DELHI. S.NO. NAME OF APPLICANT AMOUNT (RS.) 1. SILVERSTONE COMMEERCIAL PVT. LTD., 15,00,000 2. SHEVIN CAPITAL SERVICES PVT. LTD., 25,00,000 3. SHREE RATNAKAR INVESCA PVT. LTD., 10,00,000 4. BRIDGE STOCKS & SECURITIES PVT. LTD., 25,00,000 TOTAL 75,00,000 3.2. THE LD. CIT(A), NOTED THAT ASSESSEE FILED DOCUMENTS WHICH ARE SHARE APPLICATION FORMS, CERTIFICATE OF INCORPORATION, BOARD RESOLUTION, BANK STATEMENT, INCOME TAX RETURN, BALANCE SHEET, CONFIRMATION AND PAN CARD ETC., THE ROC FORM WAS ALSO FILED. THE LD. CIT(A), THEREFORE, NOTED THAT ASSESSEE PROVED IDENTITY OF THE INVESTORS, THEIR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. THE ADDITION WAS ACCORDINGLY DELETED. 4. THE LD. D.R. CONTENDED THAT THE ASSESSEE DID NOT FILE REQUIRED DOCUMENTS BEFORE A.O. AND REMAND REPORT WAS CALLED FOR FROM THE A.O. FOR ADMISSION OF THE ADDITIONAL EVIDENCES. BUT, A.O. WAS NOT GIVEN ANY OPPORTUNITY TO EXAMINE THE DOCUMENTS ON MERITS. THEREFORE, ORDER OF LD. CIT(A) CANNOT BE SUSTAINED IN LAW. 5. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSESSEE, REITERATED THE SUBMISSIONS MADE BEFORE THE 6 ITA.NO.227/DEL./2012 AMIT SCAN PVT. LTD., NEW DELHI. AUTHORITIES BELOW AND SUBMITTED THAT SUFFICIENT DOCUMENTARY EVIDENCES WERE FILED BEFORE LD. CIT(A) AS ADDITIONAL EVIDENCES, ON WHICH, REMAND REPORT FROM THE A.O. WAS CALLED. THE A.O. HAS NOT ADVERSELY COMMENTED ON THE DOCUMENTARY EVIDENCES FILED BY ASSESSEE. THEREFORE, ADDITION WAS CORRECTLY DELETED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). THE ASSESSEE FILED ADDITIONAL EVIDENCES BEFORE LD. CIT(A) FOR ADMISSION WHICH WERE CONFORMATIONS OF THE INVESTORS, THEIR CERTIFICATE OF INCORPORATION, BOARD RESOLUTION, BANK STATEMENT, ITR, BALANCE SHEET DEPICTING THE TRANSACTION TO BE GENUINE. THE A.O. IN THE REMAND REPORT DID NOT MAKE ANY ADVERSE COMMENTS UPON ADDITIONAL EVIDENCE FILED BY ASSESSEE. SINCE THE LD. CIT(A) ASKED FOR FILING OF THE REMAND REPORT FROM THE A.O. AT THE ORIGINAL APPELLATE PROCEEDINGS, THEREFORE, IT WAS DUTY OF THE A.O. TO EXAMINE ALL THE DOCUMENTS ON MERITS AND FILE REMAND REPORT ON THE SAME BEFORE LD. CIT(A). THE LD. CIT(A) WHILE ADMITTING THE ADDITIONAL EVIDENCES NOTED IN HIS FINDINGS THAT 7 ITA.NO.227/DEL./2012 AMIT SCAN PVT. LTD., NEW DELHI. NO SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE AT ASSESSMENT STAGE TO PRODUCE THE DOCUMENTARY EVIDENCES. THE ORDER OF THE LD. CIT(A) DATED 24 TH NOVEMBER 2010 HAVE BECOME FINAL BECAUSE IT IS NOT CHALLENGED BY THE REVENUE. HOWEVER, IN THE SAME ORDER, THOUGH ADDITIONAL EVIDENCE WERE ADMITTED, BUT, LD. CIT(A) DID NOT DECIDE THIS ISSUE ON MERITS. THEREFORE, LD. CIT(A) RIGHTLY TAKE-UP THE ISSUE IN PROCEEDINGS UNDER SECTION 154 OF THE INCOME TAX ACT, 1961. SINCE ADDITIONAL EVIDENCE ADMITTED BY THE LD. CIT(A) HAVE NOT BEEN DISPUTED BY THE A.O, THEREFORE, LD. CIT(A) CORRECTLY HELD THAT THE ASSESSEE PROVED IDENTITY OF THE INVESTORS, THEIR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. ALL THE DOCUMENTARY EVIDENCES ARE FILED IN THE PAPER BOOK, WHICH HAVE NOT BEEN REBUTTED BY THE REVENUE THROUGH ANY MATERIAL ON RECORD. IN THIS VIEW OF THE MATTER, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION. IN SUPPORT OF THE FINDINGS, WE RELY UPON DECISIONS OF HONORABLE DELHI HIGH COURT IN THE CASES OF CIT VS. KAMDHENU STEEL & ALLOYS LTD., 361 ITR 220, CIT VS. DWARAKADHEESH INVESTMENT PVT. LTD., 330 ITR 288 AND 8 ITA.NO.227/DEL./2012 AMIT SCAN PVT. LTD., NEW DELHI. CIT VS. VINSTRALL PETRO CHEMICALS PVT. LTD., 330 ITR 603. IN THIS VIEW OF THE MATTER, WE DISMISS THE DEPARTMENTAL APPEAL. 7. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (L.P. SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 19 TH FEBRUARY, 2019. VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT A BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI