M/s. Modern Tube Industries Ltd., Ahmedabad V. The Income tax Offcer,Ward-4(1), Baroda

ITA 2317/AHD/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6002 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-04-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 17-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL SRDR
• Keywords: Bogus Share capital; Wrong claim
• Section: 115JB; 131; 154

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + ) ' )* + ) ' )* + ) ' )* + ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.2317/AHD/2013 [ASSTT.YEAR 2007-2008] AND ITA NO.1092/AHD/2012 [ASSTT.YEAR : 2008-2009] M/S.MODERN TUBE INDUSTRIES LTD. 322, GIDC, RAMANGAMDI POR, BARODA 391 243. PAN : AAECM 7325 D /VS. ITO, WARD-4(1) BARODA. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI TEJ SHAH + 2 3 )/ REVENUE BY : SHRI P.L. KUREEL, SR.DR 5 2 &(*/ DATE OF HEARING : 11 TH APRIL, 2014 678 2 &(*/ DATE OF PRONOUNCEMENT : 02-05-2014 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THESE TWO APPEALS BY THE ASSESSEE FOR THE ASSTT.YEAR 2007-08 AND 2008-09 ARE DIRECTED AGAINST THE ORDERS OF THE CIT(A). THESE ARE BEING DISPOSED OF WITH THIS CONSOLIDATED ORDER. ITA NO.2317/AHD/2013 AND ITA NO.1092/AHD/2012 -2- ITA NO.2317/AHD/2013 A.Y.2007-08 (PENALTY UNDER S ECTION 271(1)(C) OF THE ACT. 2. THERE IS A DELAY OF 292 DAYS IN FILING THE PRESE NT APPEAL BY THE ASSESSEE BEFORE THE TRIBUNAL. THE ASSESSEE HAS FIL ED AN AFFIDAVIT BEFORE THE TRIBUNAL EXPLAINING REASONS FOR DELAY. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS LAXITY ON THE PAR T OF THE CHARTERED ACCOUNTANT IN NOT FILING THE APPEAL WITHIN TIME, AN D THEREFORE, THE ASSESSEE HAS CANCELLED HIS ENGAGEMENT AS ITS REPRESENTATIVE AND HAS APPOINTED ANOTHER ADVOCATE TO PURSE THE MATTER AND REPRESENT THE CASE OF THE ASSESSEE. HE SUBMITTED THAT IN SIMILAR FACTS, THE ISSUE OF CONDONATION WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE HONBLE GU JARAT HIGH COURT IN THE CASE OF JAYVANTSINH N. VAGHELA VS. ITO, (2013) 40 T AXMANN.COM 491 (GUJARAT). THE LEARNED DR HAS OPPOSED THE SUBMISSI ONS OF THE LEARNED COUNSEL FOR THE ASSESSEE ON THE ISSUE OF CONDONATIO N OF DELAY. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON THE ISSUE OF CONDON ATION OF DELAY. WE FIND THAT IN VIEW OF THE AFFIDAVIT OF THE ASSESSEE, THERE WAS A SUFFICIENT CAUSE IN NOT FILING THE PRESENT APPEAL BEFORE THE T RIBUNAL, AND ACCORDINGLY, WE CONDONE THE DELAY IN PRESENTING THE APPEAL BEFOR E THE TRIBUNAL, AND WE DIRECT ACCORDINGLY. 3. THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE AS UNDER: 1. THAT THE LD.CIT(A) ERRED IN LAW AND IN THE FACT S OF THE CASE IN CONFIRMING THE ORDER OF THE AO IN LEVYING PENALTY U /S.271(1)(C) OF THE ACT. 2. THAT THE LD.CIT(A) ERRED IN LAW AND IN THE FACTS OF THE CASE IN CONFIRMING THE ORDER OF THE AO IN LEVYING PENALTY U /S.271(1)(C) OF THE ACT EVEN THOUGH THE INCOME DECLARED U/S.115JB A ND AS ASSESSED U/S.115JB REMAINS THE SAME AS HELD BY THE HONBLE D ELHI HIGH COURT IN CIT VS. NALWA SONS INVESTMENTS LTD. IN 327 ITR 543. THE SLP AGAINST THE SAME HAS BEEN DISMISSED BY THE HON BLE SC THEREFORE THE SAME BECOMES LAW OF THE LAND. ITA NO.2317/AHD/2013 AND ITA NO.1092/AHD/2012 -3- 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE PENALTY WAS LEVIED UNDER SECTION 271(1)(C) OF THE ACT, ALTHOUGH THE BOOK PROFIT UNDER SECTION 115JB OF THE ACT WAS MUCH MORE THAN THE TOT AL INCOME ASSESSED AS PER THE ORDER OF THE AO UNDER SECTION 154 OF THE AC T, GIVING APPEAL EFFECT TO THE ORDER OF THE CIT(A) DATED 19.11.2010. HE SU BMITTED THAT THE MAT UNDER SECTION 115JB WAS GREATER THAN THE TOTAL TAX ON REGULAR INCOME AND THE BOOK PROFIT WAS TAKEN AS DEEMED TOTAL INCOME UN DER SECTION 115JB OF THE ACT, AND THEREFORE, THE ISSUE OF PENALTY IS COV ERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HONBLE DELHI HIG H COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX V. NALWA SONS INVESTMENT S LTD., 327 ITR 543. HE SUBMITTED THAT SLP PREFERRED AGAINST THE O RDER OF THE HONBLE DELHI HIGH COURT HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT, AND THEREFORE, IT HAS BECOME LAW OF THE LAND. 5. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF TH E LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE AO HAS COM PUTED THE INCOME, AS PER THE NORMAL PROVISIONS OF THE LAW, AND LATER ON IT WAS COMPUTED IN ACCORDANCE WITH THE ORDER OF THE CIT(A), AS PER PRO VISIONS OF SECTION 115JB OF THE ACT. HE RELIED ON THE ORDERS OF THE A O AND THE CIT(A). 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS. IN THE FA CTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IT IS NOT FIT CASE FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. MER ELY BECAUSE ORIGINALLY THE AO HAS COMPUTED THE INCOME OF THE ASSESSEE UNDE R THE NORMAL PROVISIONS OF LAW, IS NOT DECISIVE OF THE ISSUE. T HE FACT IS THAT IN THE ORDER PASSED UNDER SECTION 154 OF THE ACT DATED 16.6.2011 , THE AO HAS COMPUTED THE INCOME AS PER THE BOOK PROFIT UNDER SE CTION 115JB OF THE ACT AMOUNTING TO RS.1,10,42,567/- AND THE TOTAL INCOME AFTER GIVING APPEAL ITA NO.2317/AHD/2013 AND ITA NO.1092/AHD/2012 -4- EFFECT TO THE ORDER OF THE CIT(A) DATED 19.11.2010 REMAINED AT RS.32,92,838/-. THUS, THE MAT UNDER SECTION 115JB WAS GREATER THAN THE REGULAR INCOME, BOOK PROFIT WAS TAKEN AS DEEMED TOT AL INCOME UNDER SECTION 115JB OF THE ACT, AND THEREFORE, PENALTY UN DER SECTION 271(1)(C) OF THE ACT WAS NOT IMPOSABLE ON THE ASSESSEE. THE ISS UE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HONBLE DE LHI HIGH COURT N THE CASE OF CIT VS. NALWA SONS INVESTMENTS LTD., (SUPRA ) AND SLP PREFERRED BY THE REVENUE AGAINST THE SAID ORDER WAS REJECTED BY THE HONBLE SUPREME COURT. ACCORDINGLY, WE CANCEL THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT, AND THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE ALLOWED. ITA NO.1092/AHD/2012 ASSTT.YEAR 2008-2009 (QUANTU M APPEAL) 7. THE GROUND NO.1 OF THE ASSESSEES APPEAL IS AS U NDER: 1. THE LD.CIT(A) ERRED IN LAW AND IN THE FACTS OF THE CASE IN CONFORMING THE ORDER OF THE AO IN DISALLOWING RS.23 ,12,214/- AS TRANSPORTATION CHARGES. 8. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS ADMITTED THAT OUT OF TOTAL SALE OF RS.58.87 CRORES, SALES OF RS.30.69 CRORES REPRESENTS THE ISSUANCE OF ACCOMMODATION SALES BILL TO ONE M/S.ABG SHIPYARD LTD. USING THE ACCOMMODATED PURCHASE BILLS OF RS.30.09 CRORES FROM ONE M/S.PARAM POLYPACK P. LTD. THE MANAGING DI RECTOR OF THE ASSESSEE-COMPANY ALSO ADMITTED THAT NO ACTUAL MOVIN G OF GOODS TOOK PLACE. IN THESE FACTS, HE SUBMITTED THAT SINCE THE RE WAS NO SALE AMOUNTING TO RS.30.69 CRORES, THE SALES AND PURCHASE FIGURES OF GOODS, HAS TO BE IGNORED AND NO SEPARATE ADDITION FOR TRANSPORTATION EXPENSES COULD BE MADE. THE LEARNED DR SUBMITTED THAT THE ASSSSEE HA S RETRACTED ITS ITA NO.2317/AHD/2013 AND ITA NO.1092/AHD/2012 -5- UNDISCLOSED INCOME OF RS.3 CRORES FOR ASSTT.YEAR 20 10-11 AND THAT HE HAS ADMITTED THAT THERE WAS NO ACTUAL MOVEMENT OF GOODS , AND HENCE, THE TRANSPORTATION CHARGES WERE RIGHTLY DISALLOWED BY T HE AO. HE RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 9. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE MANAGING DIREC TOR OF THE ASSESSEE- COMPANY HAS ADMITTED THAT THERE WAS NO MOVEMENT OF GOODS, AND IT HAS ISSUED ACCOMMODATION SALES BILLS AMOUNTING TO RS.30 .69 CRORES DURING THE YEAR. THE ASSESSEE HAS ALSO RETRACTED THE UNDISCL OSED INCOME OF RS.3 CRORES FOR THE ASSTT.YEAR 2010-11. WE FIND THAT TH E PROFIT OF RS.36.31 LAKHS SHOWN IN THE AUDITED FINANCIAL STATEMENT BY T HE ASSESSEE FOR THE RELEVANT PERIOD AND THE SAME REPRESENTS THE ACTUAL SALE OF RS.28 CRORES AND ODD OF GOODS EFFECTED BY THE ASSESSEE DURING THE YE AR. IN REPLY TO SPECIFIC QUESTION FROM THE BENCH, THE LEARNED COUNSEL COULD NOT SHOW THAT ANY INCOME ON ACCOUNT OF BOGUS CLAIM OF TRANSPORTATION CHARGES WAS INCLUDED IN THIS FIGURE OF RS.36.31 LAKHS BY THE ASSESSEE SO MEWHERE ELSE IN THE FINANCIAL ACCOUNTS OF THE ASSESSEE AND THEREFORE, W E ARE OF THE VIEW THAT THE ADDITION OF TRANSPORTATION CHARGES WAS RIGHTLY MADE BY THE AO AND CONFIRMED BY THE CIT(A), AND ACCORDINGLY, THE GROUN D NO.1 OF THE ASSESSEE IS DISMISSED. 10. THE GROUND NO.2 OF THE ASSESSEE IS AS UNDER: 2. THE LD.CIT(A) ERRED IN LAW AND IN THE FACTS OF THE CASE IN CONFIRMING THE ORDER OF THE AO IN MAKING AN ADDITIO N OF RS.1,60,000/- AS UNSECURED LOAN FROM MR. MAHENDRA B HANSALI AND INTEREST PAYABLE ON SUCH LOAN. 11. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION WAS WRONGLY MADE AS THE DEPOSIT WAS MADE BY SHRI MAHEND RA BHANSALI, WHO IS ITA NO.2317/AHD/2013 AND ITA NO.1092/AHD/2012 -6- MANAGING DIRECTOR OF THE ASSESSEE COMPANY. HE IS AN EXISTING INCOME- TAX ASSESSEE AND HAS CONFIRMED THE TRANSACTION OF A DVANCING MONEY TO THE ASSESSEE-COMPANY, AND HAS ALSO GIVEN HIS PAN, COPY OF WHICH HAS BEEN FILED IN THE COMPILATION BEFORE THE TRIBUNAL. THE LEARNED DR HAS RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 12. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE AO AND THE CIT(A) AND ALSO COPY OF THE ACCOUNT OF S HRI MAHENDRA BHANSALI ALONG WITH HIS CONFIRMATION FILED IN THE C OMPILATION BEFORE THE TRIBUNAL. WE FIND THAT SHRI MAHENDRA BHANSALI HAPP ENS TO BE THE MANAGING DIRECTOR OF THE ASSESSEE-COMPANY AND HAS C ONFIRMED THE TRANSACTION OF ADVANCING MONEY TO THE ASSESSEE. M OREOVER, SHRI MAHENDRA BHANSALI IS AN EXISTING I.T.ASSESSEE, AND HAS GIVEN HIS PAN AND IT IS NOT THE CASE OF THE REVENUE THAT THE AMOUNT O F DEPOSIT WITH THE ASSESSEE-COMPANY WAS NOT REFLECTED IN THE I.T. RECO RDS OF THE CREDITOR. IN THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE O F THE VIEW THAT NO CASE OF ADDITION COULD BE MADE OUT BY THE REVENUE, AND A CCORDINGLY, THE ADDITION MADE IS DELETED AND THE GROUND NO.2 OF THE ASSESSEES APPEAL IS ALLOWED. 13. THE GROUND NO.3 OF THE ASSESSEES APPEAL IS AS UNDER: 3. THE LD.CIT(A) ERRED IN LAW AND IN THE FACTS OF THE CASE IN CONFIRMING THE ORDER OF THE AO IN MAKING AN ADDITIO N OF RS.99,05,000/- AS SHARE APPLICATION MONEY RECEIVED. 14. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS GROUND OF THE APPEAL OF THE ASSESSEE CONSISTED OF TWO PARTS I .E. FIRSTLY, THE ADDITION OF RS.2,05,000/- OF SHARE APPLICATION MONEY PERTAINING TO SHRI MAHENDRA BHANSALI, MANAGING DIRECTOR OF THE ASSESSEE-COMPANY AND THE OTHER BEING ITA NO.2317/AHD/2013 AND ITA NO.1092/AHD/2012 -7- THE ADDITION OF RS.97.00 LAKHS REPRESENTING CORPORA TE SHARE APPLICATION MONEY DEPOSITED BY FIVE COMPANIES. 15. REGARDING FIRST DEPOSIT OF RS.2,50,000/- OF SHR I MAHENDRA BHANSALI, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SHRI BHANSALI IS AN EXISTING I.T. ASSESSEE AND HAS CONFIRMED THE TRANSA CTION OF SHARE APPLICATION MONEY AND HAS ALSO GIVEN HIS PAN. THE LEARNED DR HAS RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 16. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON THIS IS SUE. WE FIND THAT THE ASSESSEE HAS DISCHARGED ITS ONUS OF PROVING THE IDENTITY AND CREDIT- WORTHINESS OF THE CREDITOR BY FILING CONFIRMATION O F SHRI MAHENDRA BHANSALI WHO HAPPENS TO BE MANAGING DIRECTOR OF THE ASSESSEE-COMPANY, AND WAS AN EXISTING I.T.ASSESSEE AND ALSO GIVEN HIS PAN. IN THESE FACTS, WE HOLD THAT NO CASE OF ADDITION OF RS.2,50,000/- C OULD BE MADE OUT BY THE REVENUE, AND THE ADDITION IS ACCORDINGLY DELETED. 17. THE OTHER ISSUE IS REGARDING ADDITION OF RS.97 LAKHS REPRESENTING CORPORATE SHARE APPLICATION MONEY WITH RESPECT TO F IVE COMPANIES. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE COULD NOT FILE NECESSARY EVIDENCES BEFORE THE AO, BUT THE SAME WAS FILED BEFORE THE CIT(A). HE SUBMITTED THAT THE ASSESSE IS NOT A PRO FIT MAKING COMPANY. HE SUBMITTED THAT THE SUMMONS WERE ISSUED TO THE FI VE COMPANIES, WHO WERE SUBSCRIBERS TO THE SHARE APPLICATION MONEY, BU T HAS COME BACK UN- SERVED, FOR WHICH THE ASSESSEE COULD NOT BE BLAMED. HE SUBMITTED THAT THE ASSESSEE HAS DISCHARGED ITS INITIAL BURDEN BY FILIN G ALL THE EVIDENCES IN ITS POSSESSION, LIKE, CONFIRMATION, PAN OF THE FIVE DEP OSITOR COMPANIES ETC. MONEY HAS COME THROUGH BANKING CHANNEL ONLY. HE SU BMITTED THAT THE COPIES OF EVIDENCES WITH REGARD TO THESE FIVE COMPA NIES FILED BEFORE THE ITA NO.2317/AHD/2013 AND ITA NO.1092/AHD/2012 -8- CIT(A), HAVE BEEN FILED IN THE COMPILATION BEFORE T HE TRIBUNAL, WHEREIN EVEN THE ADDRESS OF THE AO OF THESE FIVE COMPANIES AT KOLKATTA HAS BEEN GIVEN. HE RELIED ON THE DECISION OF THE HONBLE GU JARAT HIGH COURT IN CIT VS. RANCHHOD JIVABHAI NAKHAVA, (2012) 21 TAXMANN.CO M 159 (GUJ) WHEREIN IN SIMILAR FACTS, THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. 18. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF T HE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THIS IS A CLE AR CASE OF BOGUS DEPOSIT OF SHARE APPLICATION MONEY BY FIVE KOLKATTA COMPANIES, WHICH WERE IN FACT NON-EXISTENT. MERELY BECAUSE THE ASSESSEE HAS FILE D A COPY OF ACCOUNT WITH CONFIRMATION IS NOT A CONCLUSIVE EVIDENCE. HE SUBM ITTED THAT FIVE DEPOSITOR PARTIES WERE NON-EXISTENT IS PROVED BY TH E FACT THAT THE SUMMONS ISSUED TO THESE PARTIES BY THE AO WERE RETURNED UN- SERVED BY THE POSTAL AUTHORITIES. HE SUBMITTED THAT THE INITIAL BURDE N WAS ON THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION. HE REL IED ON FOLLOWING SERIES OF DECISIONS IN SUPPORT OF THE CASE OF THE REVENUE. I) CIT VS. NIPUN BUILDERS & DEVELOPERS P. LTD., (2013) 30 TAXMANN.COM 292 (DELHI); II) CIT VS. ULTRA MODERN EXPORTS P. LTD., (2013) 40 TAX MANN.COM 458 (DELHI); III) GAYATHRI ASSOCIATES VS. ITO, (2014) 41 TAXMANN.COM 526 (AP); IV) BLESSING CONSTRUCTION VS. ITO, (2013) 32 TAXMANN.CO M 366 (GUJ); V) CIT VS. N.R. PORTFOLIO P. LTD. VS. CIT, (2013) 29 T AXMANN.COM 291 (DELHI) 19. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE AO AND THE CIT(A) AND ALSO COPIES OF VARIOUS DOCUME NTS FILED BY THE ASSESSEE IN APPEAL BEFORE US. WE HAVE ALSO GONE TH ROUGH THE DECISIONS OF THE HONBLE COURTS RELIED UPON BY THE PARTIES. WE FIND THAT THE ASSESSEE COULD NOT PROVE THE GENUINENESS OF THE DEPOSIT OF S HARE APPLICATION MONEY ITA NO.2317/AHD/2013 AND ITA NO.1092/AHD/2012 -9- BY THESE FIVE COMPANIES AT KALKOTTA. THE SUMMONS I SSUED BY THE AO HAVE COME BACK UNSERVED. THE INITIAL BURDEN IS ON THE A SSESSEE TO PROVE NOT ONLY THE IDENTITY AND CREDIT-WORTHINESS OF SHARE MO NEY DEPOSITORS, BUT ALSO THE GENUINENESS OF THE TRANSACTION. IN THESE CASES , THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE BEFORE THE AO. THE EVIDENCE WAS FILED BEFORE THE CIT(A), BUT THE ASSESSEE COULD NOT CONTROVERT THE C ASE OF THE REVENUE THAT THESE FIVE CORPORATE SHARE APPLICATION MONEY DEPOSI TORS WERE NON-EXISTENT, SINCE THE SUMMONS ISSUED TO THEM HAVE COME BACK UNS ERVED. THE ASSESSEE MADE NO FURTHER EFFORTS TO PROVE THE EXISTENCE OF T HESE PARTIES OR GENUINENESS OF THE TRANSACTION. THE DECISIONS RELI ED UPON BY THE LEARNED DR ARE APPLICABLE TO THE FACTS OF THE CASE OF THE A SSESSEE. IN THIS CASE, THERE IS NO MATERIAL TO JUSTIFY THE CHARGE OF PREMI UM ON THE SHARES DESPITE THE FACT THAT THE PROFIT OF THE ASSESSEE-COMPANY WA S NEGLIGIBLE. THE DEPARTMENT WAS ABLE TO ESTABLISH THE DISCREPANCIES IN THE CASE OF THE ASSESSEE. IN CIT VS. N.R.PORTFOLIO P. LTD. (SUPRA) THE HONBLE DELHI HIGH COURT IN SIMILAR FACTS DECIDED THE ISSUE IN FAVOUR OF THE REVENUE. IN THIS CASE, BEFORE THE HONBLE DELHI HIGH COURT THE ASSES SEE HAS RECEIVED THE MONEY PER ACCOUNT PAYEE CHEQUES AND WAS ABLE TO FIL E CONFIRMATIONS FROM THE DEPOSITOR PARTIES. HOWEVER, SUMMONS SENT UNDE R SECTION 131 OF THE ACT TO THE DEPOSITOR PARTIES WERE RECEIVED BACK UNS ERVED. THE HONBLE DELHI HIGH COURT UPHELD THE ADDITIONS MADE BY THE A O AND ISSUE WAS DECIDED IN FAVOUR OF THE REVENUE. IN CIT VS. NIPUN BUILDERS & DEVELOPERS P. LTD., (SUPRA), THE HONBLE DELHI HIGH COURT HAS CONSIDERED THE LAW ON THE ISSUE AND INSIMILAR FACTS UPHELD THE ADDITION OF SHARE APPLICATION MONEY TO ASSESSEES TAXABLE INCOME AS U NEXPLAINED DEPOSITS. 20. RESPECTFULLY FOLLOWING THE DECISIONS OF THE HON BLE HIGH COURTS RELIED UPON BY THE LEARNED DR AND IN THE FACTS OF T HE CASE, WE DECIDE THE ISSUE IN FAVOUR OF THE REVENUE, AND THE ADDITION OF RS.97 LAKHS OF SHARE ITA NO.2317/AHD/2013 AND ITA NO.1092/AHD/2012 -10- APPLICATION MONEY IS CONFIRMED. THE GROUND NO.3 OF THE ASSESSEE IS PARTLY ALLOWED TO THE EXTENT OF RS.2,05,000/- AND T HE BALANCE ADDITION OF RS.97 LAKHS (RUPEES NINETY SEVEN LAKHS) IS CONFIRME D. 21. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO.2317/AHD/2013 IS ALLOWED AND THE ASSESSEES APPEAL IN ITA NO.1092/AH D/2012 IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( .. /G.C. GUPTA ) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD