ITO, New Delhi V. M/s. Ibex Infotech Pvt. Ltd, New Delhi

ITA 2400/DEL/2010

• Counselvise Citation: 240020114 RSA 2010
• Duration Of Justice: 4 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 23-03-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 20-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Opportunity of being heard; Additional evidence; Accommodation entries
• Section: 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : C : NEW DELHI BEFORE SHRI R.S. SYAL, AM AND SHRI I.C. SUDHIR, JM ITA NO.2400/DEL/2010 ASSESSMENT YEAR : 2001-02 ITO, WARD-11(3), NEW DELHI. VS. IBEX INFOTECH PVT. LTD., 2482, CLASSIC APARTMENTS STREETS, MOTI MAHAL, DARYAGANJ, NEW DELHI. PAN: AAACI6942E (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI T. VASANTHAN, SR. DR DATE OF HEARING : 23.03.2015 DATE OF PRONOUNCEMENT : .03.2015 ORDER PER R.S. SYAL, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 29.03.2010 IN RELATION TO THE ASSESSM ENT YEAR 2001-02. ITA NO.2400/DEL/2010 2 2. THE ONLY ISSUE RAISED THROUGH VARIOUS GROUNDS IS AGAINST THE DELETION OF ADDITION OF RS.21,57,000/- MADE BY THE AO U/S 68 OF THE ACT. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A NOTICE U/S 148 WAS ISSUED ON THE BASIS OF INFORMATION RECEIVED FROM DI T (INV.) THAT THE ASSESSEE COMPANY HAD RECEIVED ACCOMMODATION ENTRIES TO THE TUNE OF RS.9.50 LAC THROUGH DIFFERENT PARTIES IN ITS BANK A CCOUNT DETAILED AS UNDER:- CHEQUE NO. DT. OF CHEQUE NAME OF THE PARTY AMOUNT 915525 17.02.2001 M.V. MKT. (P) LTD. 1,50,000/- 172180 26.02.2001 MASTRO MKT. & ADV. 2,00,000/- 111025 03.03.2001 BALDEV HARISH ELECTRICAL 2,00,000/- 534780 13.02.2001 FNS CONSULTANCY 2,50,000/- 84914 03.03.2001 SANTVANT SODHI (P) LTD. 1,50,000/- 4. THE AO OBSERVED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE ASSESSEE HAD SHOWN SHARE CAPITAL OF RS.21.57 LA C IN ITS BALANCE SHEET, OUT OF WHICH A SUM OF RS.21.55 LAC WAS PENDING ALLO TMENT FOR WHICH NO EXPLANATION WAS OFFERED BY THE ASSESSEE. DESPITE SE VERAL OPPORTUNITIES AND REMINDERS, THE ASSESSEE DID NOT APPEAR BEFORE T HE AO TO PROVE THE GENUINENESS OF THE SHARE APPLICATION/CAPITAL. IN TH E ORDER PASSED U/S 144, ITA NO.2400/DEL/2010 3 THE AO MADE ADDITION OF RS.21.57 LAC. THE ASSESSEE , FILED ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) ON WHICH REMAND REPO RT WAS CALLED FOR FROM THE AO. IN THE REMAND REPORT, THE AO OBJECTED TO THE ADMISSION OF ADDITIONAL EVIDENCE FOR THE REASON THAT THE ASSESSE E WAS ALLOWED SUFFICIENT OPPORTUNITY AT THE STAGE OF ASSESSMENT, WHICH WAS NOT AVAILED. CONCURRING WITH THE SUBMISSION ADVANCED BEFORE HIM BY THE ASSESSEE, THE LD. CIT(A) PREFERRED TO DELETE THE ADDITION OF RS.21.57 LAC. 5. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVAN T MATERIAL ON RECORD. THERE IS NO APPEARANCE FROM THE SIDE OF TH E ASSESSEE DESPITE NOTICE. WE ARE, THEREFORE, PROCEEDING TO DISPOSE O F THIS APPEAL EX PARTE QUA THE ASSESSEE. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. NOVA PROMOTERS AND FIN LEASE (P) LTD. (2012) 342 I TR169 (DEL), HAS HELD THAT IF THE ASSESSEE FAILS TO PROVE THE RECEIP T OF SHARE APPLICATION MONEY TO THE SATISFACTION OF THE AO, THEN, ADDITION HAS TO BE RIGHTLY SUSTAINED U/S 68. SIMILARLY, IN THE CASE OF CIT VS. EMPIRE BUILD TECH PVT. LTD., (2014) 366 ITR 110 (DEL), THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD THAT MERELY BECAUSE THE ASSESSEE HAD DISCLOSED THE ITA NO.2400/DEL/2010 4 IDENTITY OF THE INVESTORS, IT CANNOT BE SAID THAT T HE BURDEN IMPOSED UPON IT U/S 68 STOOD DISCHARGED. 6. ADVERTING TO THE FACTS OF THE INSTANT CASE, W E FIND THAT THE AO GAVE AMPLE OPPORTUNITIES TO THE ASSESSEE FOR ESTABLISHIN G THE GENUINENESS OF THE AMOUNT CREDITED AS SHARE CAPITAL IN THE BOOKS O F ACCOUNT, WHICH WERE NOT AVAILED. THE LD. CIT(A), ENTERTAINING THE ADDI TIONAL EVIDENCE, PREFERRED TO DELETE THE ADDITION BRUSHING ASIDE THE OBJECTIONS RAISED BY THE AO AGAINST THE ADMISSION OF ADDITIONAL EVIDENCE . THE AO, IN HIS REMAND REPORT, STRONGLY OBJECTED TO THE ADMISSION O F ADDITIONAL EVIDENCE WITHOUT COMMENTING ON THE MERITS OF THE ADDITIONAL EVIDENCE. WE WANT TO MAKE IT CLEAR THAT THE FIRST APPELLATE PROCEEDIN GS ARE NOT IN SUBSTITUTION OF THE ASSESSMENT PROCEEDINGS. BASICALLY, IT IS THE DUTY OF THE AO TO FRAME ASSESSMENT AND THE ASSESSEE HAS NO CHOICE TO SKIP THIS LEVEL AND PREFER TO BE ASSESSED BY THE LD. CIT(A). IN OUR CON SIDERED OPINION, THE LD. CIT(A) ERRED IN DELETING THE ADDITION IN VIOLAT ION OF RULE 46A, KNOWINGLY FULLY WELL THAT THE ASSESSEE DID NOT EXTE ND ANY CO-OPERATION TO THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WHICH, EVENTUALLY, ITA NO.2400/DEL/2010 5 LED TO THE PASSING OF THE ORDER U/S 144 OF THE ACT. SINCE THE ASSESSEE PREFERRED SOME EVIDENCE BEFORE THE LD. CIT(A) FOR T HE FIRST TIME IN SUPPORT OF THE GENUINENESS OF THE CREDITS, WE ARE O F THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUAT ELY IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO TH E FILE OF AO. WE ORDER ACCORDINGLY AND DIRECT HIM TO DECIDE THIS ISSUE AFR ESH AS PER LAW, AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSEE WILL EXTEND FULL CO-O PERATION TO THE AO DURING THE FRESH PROCEEDINGS. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 24.03.201 5. SD/- SD/- [I.C. SUDHIR] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 24 TH MARCH, 2015. DK ITA NO.2400/DEL/2010 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.