ITO, Ward - 1(4), Kolkata, Kolkata V. M/s. Jupiter Coke Industries Pvt. Ltd., Kolkata

ITA 2307/KOL/2010

• Counselvise Citation: 230723514 RSA 2010
• Duration Of Justice: 3 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 07-10-2013
• Assessment Year: 2000-2001
• Appeal Filed On: 31-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P B PRAMANIK JDIT
• Assessee Lawyers: H N DUBEY
• Section: 143(3)

Judgement Text

I.T.A. NO. 2307/KOL./2010 ASSESSMENT YEAR: 2000-01 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER), AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO. 2307/KOL. / 2010 ASSESSMENT YEAR : 2000-2001 INCOME TAX OFFICER,.................. ...APPELLANT WARD-1(4), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-700 069 -VS.- M/S. JUPITAR COKE INDUSTRIES PVT. LTD.,.......... ........RESPONDENT 1/1A, BIPLABI ANUKUL CHANDRA STREET, 5 TH FLOOR, KOLKATA-700 072 [PAN : AAACJ 7103 N] APPEARANCES BY: SHRI P.B. PRAMANIK, JDIT, SR. D.R., FOR THE DEPARTMENT SHRI H.N. DUBEY, ADVOCATE, FOR THE ASSESSEE DATE OF CONCLUDING THE HEARING : JULY 10, 2014 DATE OF PRONOUNCING THE ORDER : JULY 14, 2014 O R D E R PER GEORGE MATHAN: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-I, KOLKATA IN APPEAL NO. 01/CIT(A)-I/WD.1(4)/08-09 DATED 06.09.2010 FOR THE ASSESSMENT YEAR 2000-01. 2. SHRI P.B. PRAMANIK, JDIT, SR. D.R. REPRESENTED O N BEHALF OF THE REVENUE AND SHRI H.N. DUBEY, ADVOCATE, REPRESENTED ON BEHALF OF THE ASSESSEE. I.T.A. NO. 2307/KOL./2010 ASSESSMENT YEAR: 2000-01 PAGE 2 OF 5 3. IT WAS SUBMITTED BY THE LD. SR. D.R. AT THE TIME OF HEARING THAT IN THE COURSE OF ASSESSMENT AS CONSEQUENCE OF THE DIRECTIO N PASSED UNDER SECTION 263, IT WAS NOTICED THAT THE ASSESSEE WAS U NABLE TO EXPLAIN THE SHARE APPLICATION MONEY RECEIVED BY IT. IT WAS THE SUBMISSION THAT THE SHARE APPLICATION MONEY WAS RECEIVED FROM FOUR PERS ONS, NAMELY (1) SHRI GULAB CHAND JAIN FOR AN AMOUNT OF RS.11,00,000/-, ( 2) SHRI MOTILAL JAIN FOR AN AMOUNT OF RS.7,00,000/-, (3) SMT.PREETY DKHA R FOR AN AMOUNT OF RS.12,50,000/- AND (4) SMT. PHOOL DKHAR FOR AN AMOU NT OF RS.12,20,000/-. IT WAS THE SUBMISSION THAT THE ASSESSEE IS BASED IN KOLKATA AND THE ADDRESSES OF THE SHARE APPLICANTS WERE FROM GUWAHAT I. CONSEQUENTLY LD. JDIT (INVESTIGATION), NORTH EAST REGION, GUWAHATI H AD BEEN REQUESTED TO CONDUCT ENQUIRIES IN RESPECT OF THE FOUR PERSONS AN D LD. JDIT (INVESTIGATION) HAD SENT HIS ENQUIRY REPORT MENTION ING THAT SHRI GULAB CHAND JAIN AND SHRI MOTILAL JAIN WERE LOW PAID EMPL OYEES OF M/S. MAHABIR COKE INDUSTRIES, GUWAHATI AND THEY WERE HAVING SALA RIES APPROXIMATELY RS.3,500/- PER MONTH. IN RESPECT OF SMT. PREETY DKH AR AND SMT. PHOOL DKHAR, IT WAS INFORMED THAT LD. JDIT(INVESTIGATION) COULD NOT TRACE THE SAID TWO PERSONS. HOWEVER, CORRESPONDENCES WERE REC EIVED FROM THEM WHEREIN IT WAS MENTIONED THAT THEY BELONG TO SCHEDU LED TRIBE OF NORTH EASTERN REGION AND, THEREFORE, THEIR INCOMES WERE E XEMPT UNDER SECTION 10(26) OF THE INCOME TAX ACT. CORRESPONDENCES WERE ALSO RECEIVED FROM SHRI GULAB CHAND JAIN AND SHRI MOTILAL JAIN, WHEREI N IT WAS MENTIONED THAT THE INVESTMENTS WERE FROM THEIR OWN SOURCES OF FUND. 4. BEFORE LD. CIT(APPEALS), IT WAS SHOWN THAT IN TH E CASE OF SHRI GULAB CHAND JAIN AND SHRI MOTILAL JAIN, THE AMOUNTS WERE RECEIVED FROM NORTH EASTERN COAL SUPPLIERS (PVT.) LTD., WHICH HAD SUBSE QUENTLY MERGED WITH LORDS SECURITY LIMITED. IT WAS THE SUBMISSION THAT LD. CIT(APPEALS) HAD DELETED THE ADDITION IN THE CASE OF SHRI GULAB CHAN D JAIN AND SHRI MOTILAL JAIN ON ACCOUNT OF THE REASON THAT THE ISSUE SHOULD BE RESTORED FOR VERIFICATION BUT IN THE ABSENCE OF THE LUXURY AVAIL ABLE FOR RESTORATION. IN REGARD TO THE ADDITION MADE ON ACCOUNT OF SMT. PREE TY DKHAR AND SMT. I.T.A. NO. 2307/KOL./2010 ASSESSMENT YEAR: 2000-01 PAGE 3 OF 5 PHOOL DKHAR, LD. CIT(APPEALS) DELETED BY HOLDING TH AT THE TWO PERSONS HAD CONFIRMED THAT THEIR INVESTMENTS WERE OUT OF TH EIR FUNDS AND THAT THEY WERE NOT ASSESSED TO INCOME-TAX. IT WAS THE FU RTHER SUBMISSION BY LD. SR. D.R. THAT INTERESTINGLY ALL OF THE FOUR LETTERS SENT TO TWO DIFFERENT ADDRESSES WERE RESPONDED TO AND THEIR REPLIES FORWA RDED FROM THE GUWAHATI G.P.O. ON 01.03.2006 AT 15.01 P.M./15.02 P .M. IT WAS THE SUBMISSION THAT THESE FACTS CLEARLY SHOW THAT THE S HARE APPLICATION MONEY WERE BOGUS AND THE ORDER OF THE LD. CIT(APPEALS) WA S LIABLE TO BE REVERSED. 5. IN REPLY, LD. A.R. SUBMITTED THAT ALL EVIDENCES HAD BEEN PRODUCED BEFORE THE LD. CIT(APPEALS) AND THE LD. CIT(APPEALS ) AFTER HAVING CONSIDERED ALL THE EVIDENCES HAD DELETED THE ADDITI ON. IT WAS THE SUBMISSION THAT THE FUNDS IN CONNECTION WITH SHRI G ULAB CHAND JAIN AND SHRI MOTILAL JAIN HAD BEEN CLEARLY SHOWED TO BE THE SOURCE FROM M/S. NORTH EASTERN COAL SUPPLIERS (PVT.) LTD. IT WAS ALS O CLEARLY MENTIONED IN THE REPLY OF SHRI PREETY DKHAR AND SHRI PHOOL DKHAR THAT THEY WERE FROM THE SCHEDULED TRIBES OF THE NORTH EAST REGION AND T HEY WERE NOT LIABLE TO PAY INCOME-TAX IN SO FAR AS THEIR INCOMES WERE EXEM PT UNDER SECTION 10(26) OF THE INCOME TAX ACT. IT WAS THE SUBMISSION THAT THE ORDER OF LD. CIT(APPEALS) WAS LIABLE TO BE CONFIRMED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE FACTS IN THE CASE OF SHRI MOTILAL JAIN AND SHRI GULAB CHAND JAIN SHOWS THAT BEFORE THE ASSESSING AUTHORITY IN THE COURSE OF ORIGINAL A SSESSMENT PROCEEDINGS, ONE BALANCE-SHEET HAD BEEN PRODUCED. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) READ WITH SECTION 263, WHICH IS THE ASSESSMENT UNDER CHALLENGED, ANOTHER BALANCE-SHEET HAD BEEN PRODUCED. THE ASSESSING OFFICER HAS EXTRACTED BOTH THE BALANC E-SHEETS IN PARAS 4 & 5 OF HIS ORDER. HOWEVER, BEFORE THE LD. CIT(APPEALS ), ALL THESE BALANCE- SHEETS WERE NOT REFERRED TO BUT TOTALLY NEW ARGUMEN T HAS BEEN BROUGHT OUT SAYING THAT THE AMOUNT HAD BEEN RECEIVED THROUG H NORTH EASTERN COAL I.T.A. NO. 2307/KOL./2010 ASSESSMENT YEAR: 2000-01 PAGE 4 OF 5 SUPPLIERS (PVT.) LTD., WHO HAD CONFIRMED THE INVEST MENT ON BEHALF OF SHRI MOTILAL JAIN AND SHRI GULAB CHAND JAIN. INTERESTING LY, NORTH EASTERN COAL SUPPLIERS (PVT.) LTD. HAS ALSO GOT MERGED WITH LORD S SECURITY LIMITED. LD. CIT(APPEALS) ALSO HAS CLEARLY MENTIONED THAT IDEALL Y THE ISSUE COULD BE RESTORED FOR VERIFICATION. HOWEVER, HE PROCEEDED TO DELETE THE ADDITION MADE ON ACCOUNT OF SHARE APPLICATION MONEY IN THE C ASE OF SHRI GULAB CHAND JAIN AND SHRI MOTILAL JAIN. INCIDENTALLY A PE RUSAL OF THE ORDER OF LD. CIT(APPEALS) ALSO SHOWS THAT HE MENTIONED THAT SHRI GULAB CHAND JAIN AND SHRI MOTILAL JAIN, EMPLOYEES OF M/S. MAHABIR CO KE INDUSTRIES OF GUWAHATI HAD GONE RAJASTHAN BUT ON 01.03.2006 THEIR REPLIES WERE FORWARDED FROM GUWAHATI GPO. ALL THESE CLEARLY CREA TE A DOUBT IN RESPECT OF THE EXISTENCE OF SHRI GULAB CHAND JAIN AND SHRI MOTILAL JAIN AS ALSO THEIR TRANSACTIONS IN RESPECT OF SHARE APPLICATION MONEY. 6.1. IN RESPECT OF SMT. PREETY DKHAR AND SMT. PHOOL DKHAR, THOUGH BOTH HAVE STATED THAT THEY ARE TRIBAL OF NORTH EAST REGI ON AND THEIR INCOMES ARE EXEMPT UNDER SECTION 10(26) OF THE ACT, NO EVID ENCE WHATSOEVER HAS BEEN PRODUCED TO SUBSTANTIATE ANY OF THEIR CLAIMS. NOTHING WHATSOEVER WAS PRODUCED SO THAT THEY BELONG TO SCHEDULED TRIBE IN THE NORTH EAST REGION. NOTHING HAS BEEN PRODUCED TO SHOW THAT THEY HAD MONEY TO MAKE THE INVESTMENT IN THE SHARE APPLICATION OF THE ASSE SSEE. IN THESE CIRCUMSTANCES, THE ISSUE OF THE SHARE APPLICATION M ONEY IN THE CASE OF SHRI GULAB CHAND JAIN AND SHRI MOTILAL JAIN IS REST ORED TO THE FILE OF THE ASSESSING OFFICER FOR RE-ADJUDICATION AFTER PERSONA L VERIFICATION AND EXAMINATION OF SHRI GULAB CHAND JAIN AND SHRI MOTIL AL JAIN. IN RESPECT OF THE ADDITION DELETED BY THE LD. CIT(APPEALS) IN THE CASE OF SMT. PREETY DKHAR AND SMT. PHOOL DKHAR, THE ORDER OF THE LD. CI T(APPEALS) IS REVERSED AND THAT OF THE ASSESSING OFFICER RESTORED IN SO FA R AS NO EVIDENCE WHATSOEVER HAS BEEN PRODUCED TO SHOW THAT SHRI PREE TY DKHAR AND SMT. PHOOL DKHAR BELONG TO SCHEDULED TRIBE OF NORTH EAST ERN REGION OR THAT THEY HAD SOURCES TO MAKE THE INVESTMENT IN SHARE AP PLICATION. I.T.A. NO. 2307/KOL./2010 ASSESSMENT YEAR: 2000-01 PAGE 5 OF 5 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JULY, 2014. SD/- SD/- SHAMIM YAHYA GEORGE MATHAN (ACCOUNTANT MEMBER) (JU DICIAL MEMBER) KOLKATA, THE 14 TH DAY OF JULY, 2014 COPIES TO : (1) INCOME TAX OFFICER, WARD-1(4), KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, 7 TH FLOOR, KOLKATA-700 069 (2) M/S. JUPITAR COKE INDUSTRIES PVT. LTD. 1/1A, BIPLABI ANUKUL CHANDRA STREET, 5 TH FLOOR, KOLKATA-700 072 (3) COMMISSIONER OF INCOME-TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.