ACIT, New Delhi V. M/s Anshika Investment Pvt. Ltd., New Delhi

ITA 283/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6976 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 18-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY GEOL
• Keywords: Question of law
• Section: 143(3); 153A; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO. 283/DEL/2017 [ASSESSMENT YEAR: 2009-10] ACIT, CENTRAL CIRCLE-27( ERSTWHILE CENTRAL CIRCLE-18 ), ROOM NO.327, ARA CENTRE, E-2, JHANDEWALAN EXTN. NEW DELHI-110055 M/S ANSHIKA INVESTMENT PVT. LTD. 305, 3 RD FLOOR BHANOT CORNER, PAMPOSH ENCLAVE, G. K.-1, NEW DELHI PAN - AAACB0113E APPELLANT RESPONDENT APPELLANT BY SHRI SANJAY GEOL RESPONDENT BY SHRI M. P. RASTOGI DATE OF HEARING 31 /07/2019 DATE OF PRONOUNCEMENT 31 /07/2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A)-29, NEW DELHI, DATED 21/10/2016 PERTAINING TO AY 2009-10. 2. THE SUBSTANTIVE GRIEVANCE OF THE REVENUE READ AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A), HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.4,00,00,000/- MADE U/S 68, WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE FA ILED TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS OF TRANSACTION. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) FAILED APPRECIATE THAT THE ASSESSEE COMPANY GOT CREDIT OF RS.3,00,00,000/- FROM OF SHARE APPLICATION MONEY/PREMIUM M/S ADHYAY EQUIPREF PVT. LTD. FROM THE BANK ACCOUNT OF M/S ADHYAY EQUIPREF PVT. LTD. IT IS NOTICED THAT BE TWEEN 3.4.2008 TO 8.4.2008 THERE HAVE BEEN CREDITS WORTH RS.12 CRORES AND ON 8.4.200 8 FUNDS HAVE BEEN TRANSFERRED TO 3 ENTITIES NAMELY M/S A.R. LEASING PVT. LTD. M/ S ANSHIKA INVESTMENT PVT. LTD. 2 ITA NO.283/DEL/2017 AND M/S NIKSAR FINVEST PVT. LTD. AMOUNT TO RS.6 CROR ES, 3 CRORES AND 3 CRORES RESPECTIVELY. THERE WAS NEGLIGIBLE BALANCE IN THE AC COUNT BEFORE AND AFTER THESE TRANSCACTIONS. THIS PATTERN OF BANK DEPOSITS AND WIT HDRAWALS IS GENERALLY FOUND IN CASE OF ENTRY OPERATORS 3. THE UNDERLYING FACTS IN THE ISSUES CAN BE UNDERS TOOD FROM THE FOLLOWING OBSERVATIONS OF THE ASSESSING OFFICER WHILE FRAMING THE ASSESSME NT ORDER U/S 153A R.W.S. 143(3) OF THE ACT VIDE ORDER DATED 29/02/2016:- IN THIS CASE, ORIGINAL ASSESSMENT U/S 143(3) WAS M ADE BY ACIT CENTRAL CIRCLE-27, NEW (PREVIOUSLY CENTRAL CIRCLE-27, NEW DELHI) ON 28/12/ 2011 WHICH TOTAL INCOME WAS ASSESSED AT RS.4,00,00,000/- AFTER MAKING ADDITION ON ACCOUNT O F 14A AND 68 OF THE I.T. ACT, 1961. THE ASSESSEE FILED APPEAL AGAINST THE ABOVE ADDITION MA DE BY THE A.O. THE LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE BY DELETING ENTIRE ADDIT ION. THE DEPARTMENT FILED APPEAL AGAINST THE ORDER PASSED BY THE LD. CIT(A). AS THE APPEAL O F THE REVENUE IS PENDING BEFORE HONBLE ITAT, THE TOTAL INCOME OF THE ASSESSEE IS AS SESSED AT RS.4,00,00,000/-. 4. AS CAN BE SEEN FROM THE ABOVE OBSERVATIONS, THE ADDITIONS HAVE BEEN MADE SINCE THE APPEAL AGAINST THE ORDER OF THE LD. CI(A) WAS FILED BEFORE THE ITAT. THE ITAT IN ITA NO.2262/DEL/2013 & FIVE OTHERS HAVE CONSIDERED THE DISPUTE AND HELD AS UNDER:- 9. FROM THE ABOVE, IT IS EVIDENT THAT THE VALUE OF EACH SHARE IS WORKED OUT AT `40,616/-. THUS, APPARENTLY, HIGHER SHARE PREMIUM OF `39,900/- IS JUSTIFIABLE BECAUSE OF LIMITED NUMBER OF SHARES OF THE ASSESSEE COMPANY WHO ARE ACTUAL OW NER OF ASSETS OF WORTH MORE THAN `60 CRORES. MOREOVER, IN THE EARLIER YEAR ALSO, THE SHA RES WERE ALLOTTED AT A PREMIUM OF `39,900/- PER SHARE AND IN AY 2006-07, THE ASSESSING OFFICER EVEN GOT THE VERIFICATION MADE THROUGH THE INVESTIGATION WING OF KOLKATA AND THE ITAT HAS A CCEPTED THE CREDIT IN THE FORM OF SHARE CAPITAL AFTER CONSIDERING THE REPORT OF INVESTIGATI ON WING OF KOLKATA. HON'BLE JURISDICTIONAL HIGH COURT HAS ALSO UPHELD THE ORDER OF THE ITAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07 AFTER TAKING DUE NOTE OF HIGH SHARE PR EMIUM. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT CONSIDERING THE FACTS OF THE CASE, THE GENUINENESS OF THE TRANSACTIONS IS DULY ESTABLISHED. IN VIEW OF THE ABOVE, WE HOLD THAT THE ASSESSEE HAS DULY DISCHARGED THE ONUS OF PROVING THE CREDIT OF SHARE CAPITAL IN ITS ACCOU NT AND LEARNED CIT(A) WAS FULLY JUSTIFIED IN ACCEPTING THE SAME AND IN DELETING THE ADDITION. 5. THIS ORDER OF THE TRIBUNAL WAS CHALLENGED BEFORE THE HONBLE HIGH COURT AND THE HONBLE HIGH COURT IN ITA NO.424/2017, ORDER DATED 03/07/2017, DISMISSED THE APPEAL OF THE REVENUE BY HOLDING AS UNDER:- 3 ITA NO.283/DEL/2017 8. THE ITAT DISMISSED THE REVENUES APPEAL BY RELYIN G ON AN EARLIER ON AN EARLIER ORDER OF THE ITAT IN THE ASSESSEES OWN CASE FOR AY 2006-07. FURTHER, THE ITAT DISCUSSED THE MERITS OF THE CASE AND AFTER ANALYSING THE RECO RD CONCLUDED THAT THE ASSESSEE HAS DULY DISCHARGED THE ONUS OF PROVING THE CREDIT OF SHARE CAPITAL IN ITS ACCOUNT AND LEARNED CIT(A) WAS FULLY JUSTIFIED IN ACCEPTING THE SAME AND IN DE LETING THE ADDITION. 9. I HAVING HEARD LEARNED COUNSEL FOR THE REVENUE A ND HAVING PERUSED THE RECORD, THE COURT IS SATISFIED THAT THE CONCLUSION REACHED BY T HE CIT(A) THAT THE ADDITION UNDER SECTION 68 OF THE ACT WAS NOT JUSTIFIED APPEARS TO BE UNEXC EPTIONABLE. 10. NO SUBSTANTIAL QUESTION OF LAW ARISES FROM THE IMPUGNED ORDER OF THE ITAT. THE APPEAL IS DISMISSED. 6. CONSIDERING THE ORDER OF THE TRIBUNAL READ WITH THE ORDER OF THE HONBLE HIGH COURT, WE DECLINE TO INTERFERE WITH THE FINDINGS OF THE LD . CIT(A). 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31/07/ 2019 SD/- SD/- [SUCHITRA KAMBLE] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 31/07/2019. F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI